Skip to main content

Full text of "The Northwestern reporter"

See other formats 


This  is  a  digital  copy  of  a  book  that  was  preserved  for  generations  on  library  shelves  before  it  was  carefully  scanned  by  Google  as  part  of  a  project 
to  make  the  world's  books  discoverable  online. 

It  has  survived  long  enough  for  the  copyright  to  expire  and  the  book  to  enter  the  public  domain.  A  public  domain  book  is  one  that  was  never  subject 
to  copyright  or  whose  legal  copyright  term  has  expired.  Whether  a  book  is  in  the  public  domain  may  vary  country  to  country.  Public  domain  books 
are  our  gateways  to  the  past,  representing  a  wealth  of  history,  culture  and  knowledge  that's  often  difficult  to  discover. 

Marks,  notations  and  other  marginalia  present  in  the  original  volume  will  appear  in  this  file  -  a  reminder  of  this  book's  long  journey  from  the 
publisher  to  a  library  and  finally  to  you. 

Usage  guidelines 

Google  is  proud  to  partner  with  libraries  to  digitize  public  domain  materials  and  make  them  widely  accessible.  Public  domain  books  belong  to  the 
public  and  we  are  merely  their  custodians.  Nevertheless,  this  work  is  expensive,  so  in  order  to  keep  providing  this  resource,  we  have  taken  steps  to 
prevent  abuse  by  commercial  parties,  including  placing  technical  restrictions  on  automated  querying. 

We  also  ask  that  you: 

+  Make  non-commercial  use  of  the  files  We  designed  Google  Book  Search  for  use  by  individuals,  and  we  request  that  you  use  these  files  for 
personal,  non-commercial  purposes. 

+  Refrain  from  automated  querying  Do  not  send  automated  queries  of  any  sort  to  Google's  system:  If  you  are  conducting  research  on  machine 
translation,  optical  character  recognition  or  other  areas  where  access  to  a  large  amount  of  text  is  helpful,  please  contact  us.  We  encourage  the 
use  of  public  domain  materials  for  these  purposes  and  may  be  able  to  help. 

+  Maintain  attribution  The  Google  "watermark"  you  see  on  each  file  is  essential  for  informing  people  about  this  project  and  helping  them  find 
additional  materials  through  Google  Book  Search.  Please  do  not  remove  it. 

+  Keep  it  legal  Whatever  your  use,  remember  that  you  are  responsible  for  ensuring  that  what  you  are  doing  is  legal.  Do  not  assume  that  just 
because  we  believe  a  book  is  in  the  public  domain  for  users  in  the  United  States,  that  the  work  is  also  in  the  public  domain  for  users  in  other 
countries.  Whether  a  book  is  still  in  copyright  varies  from  country  to  country,  and  we  can't  offer  guidance  on  whether  any  specific  use  of 
any  specific  book  is  allowed.  Please  do  not  assume  that  a  book's  appearance  in  Google  Book  Search  means  it  can  be  used  in  any  manner 
anywhere  in  the  world.  Copyright  infringement  liability  can  be  quite  severe. 

About  Google  Book  Search 

Google's  mission  is  to  organize  the  world's  information  and  to  make  it  universally  accessible  and  useful.  Google  Book  Search  helps  readers 
discover  the  world's  books  while  helping  authors  and  publishers  reach  new  audiences.  You  can  search  through  the  full  text  of  this  book  on  the  web 


at|http  :  //books  .  google  .  com/ 


Law  Library 

JJttlv.   of  Calif. 

Berkeley 


ALL  MATERIAL  NONCIRCULATING 


CAU  NUMBER 


VOLUAAE 


1  90 


AUTHOR 


COPY 


COPY  3 


TITLE 


NORTHWESTERN    REPORTER 


NAME  AND  ADDRESS 

1 

LI 

COPY  3 


Di^eS^3ut5^  I C  ■ 


Digitized  by 


Google 


Digitized  by 


Google 


Digitized  by  LjOOQIC 


Digitized  by  LjOOQIC 


Nalloml  RoportM'  System. — State  Series. 


THE 

NORTHWESTERN  REPORTER 

(ANNOTATED), 
VOLUME  122, 


cotPusKisa 


ALL  THE  DECISIONS  OF  THE  SUPREME  GOUBTS 


or 


MINNESOTA,  WISCONSIN,  IOWA,  MICHIGAN,  NEBBAS^ 
NORTH  DAKOTA,  SOUTH  DAKOTA. 

PERMMENT  EDITION. 


JULY  80— NOVEMBER  26,  1909. 


WITH  TABLE  OV  NORTHWESTERN  CASES  IN  WHICH  RBHEABINQS 
HAVE  BEEN  DENIED. 

ALSO,  ■ 

ALPHABETICAL  AND  NUMERICAL  TABLES  OF  NORTHWESTERN  CASES  POBLISHEDIN 
VOI&  180,  IOWA  REPORTS;  IBB,  IBS,  MICHIGAN  REPORTS;  107,  MINNESOTA  RE- 
FORTS;  88,  NEBRASKA  REPOBTS;  187, 188,  WISCONSIN  REPORT& 


A  TABLE  OF  STATXJTES  CONSTRUED  IS  GIVEN 
IN  THE  INDEX. 


ST.  PAUL: 

WEST  PUBLISHING  00. 

1910. 


Digitized  by  LjOOQIC 


Iia*  Ubravr 


COPTBIQHT,  1909, 
BT 

WEST  PUBLISHING  COMPANY. 


COFTRIOHT,   1010, 
BT 

WBST  PUBLISHING   COMPANZ. 
(128  N.  W.) 


Digitized  by  LjOOQIC 


NORTHWESTERN  REPORTER,  VOLUME  122. 

C  3 
JUDGES 

COnBTS  REPORTED  DDRING  THE  PERIOD  COVERED  BY  THIS  VOLUME. 


IOWA— Supreme  Court. 
WILUAH  D.  BYANS,  Chixf  Justicb. 

JITDOIS. 

H.  B.  DEEMER.  EMLIN  MoCIAIN.- 

J.  O.  SHEBWIM.  S.  M.  WEAYER. 

SCOTT  M.  I.ADD. 


MICHIGAN— Supreme  Court. 
CHARLES  A.  BLAIR,  CiHirr  JusncB. 

ABBOOIATS    mBTICKB. 

CLAUDIUS  B.  GRANT.  FRANK  A.  HOOKER. 

ROBERT  M.  MONTGOMERY.  JOSEPH  B.  MOORE. 

BUSSELL  a  OSTRANDER.  AARON  Y.  ^tloALYAT. 

FLAYIUS  L.  BROOKS. 


MINNESOTA— Supreme  Court. 

CHARLES  M.  START,  Chut  Justice. 

ASBoouLTB  jrusncn. 

CALVIN  L.  BROWN.  EDWIN  A.  JAOOARD. 

CHARLES  L,  LEWIS.  CHARLES  B.  ELLIOTT.i 

THOMAS  D.  O'BRIEN.* 

NEBRASKA— Supreme  Court. 
MANOAH   B.  BEESB,  Chiet  JtrsnoB. 

JOHN  B.  BARNES.  CHARLES  B.  LETTON. 

JAMES  R.  DEAN.  WILLIAM  B.  ROSE. 

JACOB  rAWCETT.  JESSE  Jj.  BOOT. 

8UFBX1CK  COUKT  C0MMIS8I0RKB8. 

R  R.  DUFFIB.*  AMBROSE  a  EPPERSON.* 

D.  B.  GOOD.*  K  a  CALKINS.* 

NORTH  DAKOTA— Supreme  Court. 
D.  B.  MORGAN,  Chief  Justice. 

JUOOES. 

C.  J.  FISK.  S.  B.  ELLSWORTH. 

B.  F.  SPALDING,  JOHN  CARMODX. 


*  Baelsnad  Baptambar  1,  IMt.      *  Amwiatad  Saptomtwr  1,  UN,  to  succMd  Cliarlw  B.  BUIott 

*  T«rm  explrad  AprU  1.  UOt. 


m 

Digitized  by  LjOOQIC 


tc  122  N0BTHWE8TEBN  BBPOBTEB. 


SOUTH  DAKOTA— Supreme  Court. 

DIOK  HANBY,  FBxnnnia  Judox. 

Tuoan. 
DIOHTON  CORSON.  ELLISON  O.  SMIXgU 

CHAS.  &  WHITINO.  J.  H.  McCOT. 


WISCONSIN— Supreme   Court. 

JOHN  B.  ^NSLOW,  Ex  Omcio  Obxet  Jubtiob. 

MSsoaiXTX  JvanatB. 
BOUJET  D.  MABSHALU  JAMES  a  EERWIN. 

JOSHUA  EBIO  DODOE.  WILLIAM  H.  TIMLIN.. 

BOBBBT  a.  BIEBEOEEB.  JOHN  BABNEa 


Digitized  by  LjOOQIC 


AMENDMENTS  TO  RULES. 


SUPREME  COURT  OF  MINNESOTA.* 


Ordered  fhat  mle  YI  of  this  court  be  and 
It  is  hereby  amended  by  adding  to  the  end 
thereof  the  provlBlon  following: 

All  original  exhibits,  maps  and  diagrams 
sent  to  the  clerk  of  this  court  by  the  cleric 
of  the  court  below  will  in  all  cases  be  re- 
tnmed  with  the  remittitur;  all  models  will 
be  so  returned  when  necessary  on  a  new 
trial,  but  where  the  decision  of  this  court  is 
final  and  no  new  trial  Is  to  be  had,  such 
models  will  be  destroyed  by  the  clerk  of  this 
court,  unless  called  for  by  the  parties  within 
dx  months  after  final  decision  Is  rendered. 

Ordered  further  that  rule  XXX  of  this 


court  be  and  It  Is  hereby  amended  so  as  to 
read  as  follows: 

Judgment — Entry  by  Losing  Party,  or  the 
Clerk. — In  case  the  prevaUlng  party  shall 
neglect  to  have  Judgment  entered  within 
twenty  days  hfter  notice  of  the  filing  of  the 
opinion  or  order  Of  the  court,  the  adverse 
party,  or  the  clerk  of  this  court,  may,  with- 
out notice,  cause  the  same  to  be  entered 
without  inserting  therein  any  allowance  for 
costs  and  disbursements,  except  the  clerk's 
fees. 

Amended  October  11,  1900. 


>  Ftor  rules  as  preTlonaly  adopted  and  amended,  see  111  N.  W.  ▼.  and  116  N.  W.  ▼. 
122  N.W.  (t)» 


Digitized  by 


Google 


Digitized  by 


Google 


CASES  REPORTED. 


Pas* 

Abbott,  Ckro  t.  (Mich.) 307 

Abegg  T.  Hint  (Iowa) 838 

Acme  Harrestiiig   Mach.   Co.   ▼.   Hinkley 

(S.   D.) 482 

Adami,   O'Ndl   T.   (Iowa) 976 

Adams  Exp.  Co.,  State  t.  (Neb.) 601 

Adama  Grain  Co.,  Farmera  Co-Op.  Ship- 

mug  Asa'n   y.    (Neb.) 65 

Adrance  Threaber  Co.,  Duval  ▼.  (Neb.). .  880 
Xtna.  iDdemnity  Co.,  Scabill  t.  (Mich.). ...  78 
Ana  Life  Ins.  Co.,  Breeden  ▼.  (S.  D.). .  348 

Agency  aty.  Foolke  t.  (Iowa) 823 

Akron,  Baker  t.  (Iowa) 926 

Albia,  Harrison  t.  (Iowa) 816 

Alexandria,  Wlckhem  ▼.  (S.  D.) 697 

Allen  T.  Maser  (Mich.) 88 

Alpena,  Bonuerille  t.   fMich.) 618 

AmeriMn  Exp.  Co.,  Swiney  y.  (Iowa)....  957 
Anchor  Fir«  Ins.  Co.,  Scrivner  v.  (Iowa)  942 
Anchor  Fire  Ins.  Oo.,  Wilson  ▼.  (Iowa)..  167 
Anderson  r.  Eirst  Nat  Bank  (Iowa)....  818 

Anderson,  McClatchey  t.  (Neb.) 67 

AndersoD  t.  Ptttsbunr  (3oal  Co.  (Minn.)..  794 

Andie,  People  v.   (Mich.) .* 98 

Andrews  t.  Kennon  (Iowa) 840 

Andrews     t.     Northwestern     Nat.     Bank 

(Minn.) 499 

Anker  T.  Sdireib  (Mich.) 530 

Annstrong  t.  Anbnm  (Neb.). 43 

Arnold  T.  Dowd  (Neb.) 680 

Atkins,  Deloria  t.   (Mich.) 659 

Attomey  General  t.  Murphy  (Mich.) 260 

Auburn,   Armstrong  v.   (Neb.) 43 

Anbnm,   Berg  y.   (Wis.) 1041 

Anltman  Elngine  &  Thresher  Co.,  Hicka  y. 

(Minn.)    15 

Anxer,  Dally  v.  (Minn.) 1135 

Bailey,  State  y.  (Iowa) 928 

Bakalars    y.    Continental    Casualty    Co. 

(Wis.)    721 

Baker  y.   Akron  (Iowa) 926 

Baldwin  y.  Bohl  (S.  D.) 247 

Baldwin    y.    Capitol-Steam    Lanndry    Co. 

(Minn.)    460 

Bankers'  Snrety  Co.,  People  y.  (Mich.)....  863 

Bank  of  Alma,  Cockins  y.  (Neb.) 16 

Bannigan  y.  Woodbniy  (Mich.) 631 

Baraboo.  Peck  v.  (Wis.) 740 

Barendsen  y.  Wilder  (Micli.) 355 

Barnes,   Kidder  y.  (N.  D.) 378 

Barnes,  State  y.  (Minn.) 4 

Barnes,   State  y.   (Minn.) 11 

Barnes,  State  y.  (Minn.) 12 

Bamnm  y.  Jefferson  (Minn.) 45.'t 

Barton,  Kanunasn  y.  (S.  D.) 416 

Barton,  State  y.  (Neb.) 64 

Bassett  y.  Fanners'  ft  Merchants'  Ins.  Co. 

(Neb.) 703 

Bates  y.  Chicago,  M.  &  St.  P.  R.  Co.  (Wis.)  745 
Baaery.  Boara  of  Denmark  Tp.  (Mich.)..  121 
Banman,    Pennington     Coanty    Bank    y. 

(NeK)    848 

Bay  Oannty   Bridge   Commission,   Schar- 

man   y.    (Mich.) 1098 

Bcattie  y.  Detroit  United  Ry.  OJich.) 657 

Bednnan  y.  Lincoln  ft  N.  W.  R.  Co.  (Neb.)  994 

Bekkedahl  V.  Westby  (Wis.) 727 

Bdmer    y.     Boyne     City     Tanning    Co. 

(Mich.)    793 

Bennett,  Brown  y.   (Mich.) 305 

Benton  y.  Sikyta^eb.) 61 

Berg  y.  Anbam  (Wis.) 1041 

Bennao,  State  y.  (Minn.) 161 


iseM.w. 


Pat* 

Bemstien  y.  Thayer  (Mich.) 365 

Berryman  y.  Schahlander  (Neb.) 990 

Betterly  y.  Boyne  City,  G.  ft  A.  B.  Co. 

(Mich.) 635 

BetUe  y.  Tiedcen  (Neb.) 890 

Bidwell  l^resber  Co.,  Pierce  y.  Mich.)..  628 

Bingaman  y.  Bingaman  (Neb.) 981 

Birdsall  y.  Smith  (Mich.) 626 

Bixler  y.  Fry   (Mich.) 119 

Black  y.  Black  (Iowa) 916 

Blacky.   Chase  (Iowa) 916 

Black  Hawk  Land  Co.,  Appeal  of  (Wis.).  801 

Block,  Seeling  y.  (Wis.) 1065 

Blakemore,  St  Paul,  M.  ft  M.  B.  (To.  y. 

(N.  DO 838 

Blake,  People  y.  (Mich.) 113 

Blanchard  y.   CX  A.   Smith  lAimber  Go. 

niinn.)   1184 

BUSS  y.  Tyler  (Midi.) 643 

Blomstrom    Motor    Co.,    Youngquist    y. 

(Mich.)    1087 

Bloom  y.  Sioox  City  Traction  Co.  (Iowa). .  881 
Blue   Springs,   Wabaska   Electric   Co.  y. 

(Neb.)    21 

Blust,   Rasmossen   y.   (Neb.) 862 

Board  of  Denmark  Tp.,  Bauer  y.  (Mich.)  121 
Board  of  EMncation  of  City  of  Tankton  y. 

School  Dist  No.  19  (8.  D.) 411 

Board  of  Snp'rs  of  Arenac  County  y.  Board 

of  Snp'rs  of  Iosco  Coanty  (Mich.) 629 

Board  of  Sup'rs  of  Gratiot  (3ounty  y.  Man- 
son    (Mich.) 117 

Board  of  Sup'rs  of  loeco  County,  Board  of 

Sup'rs  of  Arenac  Coanty  y.  (Mich.)....  629 

Boche  y.   State   (Neb.) 72 

Bohl,  Baldwin  t.  (S.  D.) 247 

Bonacum  y.  Manning  (Neb.) 711 

Bonneville  v.  Alpena  (Mich.) 618 

Booge,   Lindsey   v.   (Iowa) 819 

Boschker  v.  Van  Beek  (N.  D.) 838 

Bosch-Ryan   Grain  Co.,   Schillinger  Bros. 

ft  Co.  V.  (Iowa) 961 

Bottje  y.  Grand  Rapids,  G.  H.  ft  M.  B. 

Co.    (Mich.) 87 

Bontwell,    Harris    v.    (Mich.) 179 

Bowker  v.  Shields  (Wis.) 809 

Boyce,    Garnsey   v.    (Mich.) 871 

Boyer,   Kendall  v.    (Iowa) 941 

Boyne  City,  G.  &  A.  R.  Co.,  Betterly  y. 

(Mich.)    635 

B^ne  caty,  O.  ft  A.  R.  Co.,  Dngan  y. 

(Mich.)    1004 

Boyne  City  Tanning  Co.,  Belmer  y.  (Mich.)  793 

Brandes'  Estate,  In  re  (Iowa) 964 

Braun,   Work   y.   (S.   D.) 608 

Breeden  y.  .Sltna  Life  Ins.  Ck).  (S.  D.). .. .  848 

Bressler  y.  Wayne  Ctonnty  (Nab.) 23 

Bretz  y.  R.  Connor  Co.  (Wis.) 717 

Brennig,  O'Shea  v.  (Neb.) 881 

Briggs  V.   Royal  Highlanders  (Neb.) 69 

Bright,    Covell    v.    (Mich.) 101 

Brousean  v.  Kellogg  Switchboard  ft  Supply 

Co.   (Mich.) 620 

Brown  v.  Bennett  (Mich.) 805 

Brown,  Cooper  v..  three  cases  (Iowa)...,  ]-<4 

Brown  v.  Bdsall  (S.  D.) 658 

Brown,  McGeary  v.   (S.   D.) 605 

Brown  y.  Ringdahl  (Minn.) 469 

Brown,  State   v.    (Iowa) 683 

Brnnke  y.  Gmben  (Neb.) 37 

Bryant  Pa^r  Co.,  Dalm  y.   (Mich.)....  257 

Buchholz,  Hoyer  v.  (Iowa) 954 

Buckeye  Brewing  (3o.  v.  Bymer  (ItDdi.)..  124 
Buckhout  y.  Witwer  (Mich.) 184 


(vii) 


Digitized  by  VjOOQ  l€ 


TiU 


122  NOBTHWEBTEBN  BBPOBTEB. 


Psc« 

Buell,  Nichols  t.  Olich.) 217 

BnrUng.  Hola  t.  (Meb.)... 681 

BushneU,  Monro«  t.  (Mich.) 608 

Bushnell,    Monroe   v.    (Mich.) 11S4 

BoMilsky  T.  Bosalskj  (Minn.) 822 

BiualBky'B  Estate,  In  le  (Minn.) 822 

Calking,   Heath  y.  (Mich.) 84 

Calumet  Ins.  Co.,  Suchocki  ▼.  (Mich.)....  216 

Cameron,   Smith  y.   (Mich.) 661 

Cameron's  Estate,  In  re  (Mich.) 278 

C!amp  y.  Camp  (Mich.) 021 

Capitol-Steam   Laundry   Oo.,   Baldwin   v. 

(Minn.)    480 

Carbarr  y.  Detroit  United  By.  (Mich.) 867 

Chrter,    Smith    y.    (Wis.) 1035 

Case  y.  Case  (MichO 688 

Case  Threshing   Mach.   Co.  y.   Ejdmlaten 

(NebO    881 

Case   Threshing   Mach.   Co.   v.   Fisher  & 

Aney    (Iowa) 676 

Case    Threshinc    Mach.    Co.    y.    Johnson 

(WU.) 1037 

Casey  y.  Mississippi  &  Bum  River  Boom 

C!o.    (Minn.) 876 

C.   A.   Smith  liumber  Co.,  Blanchard  y. 

(Minn.)    1184 

Cassanoya,    Napa    Valley    Wine    C!o.    y. 

(Wis.)   812 

Castello  y.  Citisens'  State  Bank  of  Mana- 

wa  (Wis.) 77. 768 

Cayett  y.  (}raham  (Neb.) 846 

C.  E.  Eknerson  &  Co.,  Ross  y.  (Minn.).  ..1136 

Chambers  v.  Mittnacht  (S.  D.) 484 

Cbapoton  y.  Prentis  (Mich.) 874 

Charles  A.  Stickney  Co.,  Excelsior  Supply 

Oo.    y.    (Minn.) 870 

Clhase,  Black  y.  (Iowa) 816 

O.    H.    Bidwell   Thresher   Co.,   Pierce  y. 

(Mich.)    628 

C.  H.  Blomstrom  Motor  Co.,  Youneauist 

y.    (Mich.) 1087 

Chicago,  B.  &  Q.  R.  Co.,  Cram  y.  (Neb.)  31 
Chicago,  B.  &  Q.  R.  Co.,  Hall  y.  (Iowa)  894 
Chicago.  B.  &  Q.  R.  Co.,  Kyle  y.  (Neb.)  87 
Chicago,  D.  &  C  G.  T.  J.  B.  Co.,  Seeley 

y.    (Mich.). 214 

(Chicago,  M.  &  St  P.  B.  Co.,  Bate*  y. 

CWia.)    743 

Chicago,  M.  ft  St  P.  B.  Oo.  y.  Fair  Oaks 

(Wis.)    810 

Chicago,  M.  &  St  P.  R.  Co.  y.  Mason  (S. 

D.)    !7 ...601 

Chicago,  M.  &  St  P.  R.  Co.  y.  Monona 

County    (Iowa) 820 

Chicago,  M.  &  St  P.  B.  Co.,  Rowe  y.  (Iowa)  929 
Chicago,  M.  &  St  P.  R.  Co.,  Schmidt  y. 

(Minn.)    9 

Chicago,  R.  I.  &  P.  B.  C!o.,  O'(3onnor  y. 

(Iowa)    947 

Chicago,  BL'i.'&  P.  R.  (io.,  Wisecaryer  & 

Reynard    y.    (Iowa) 909 

Ohicago,  St  P.,  M.  &  O.  R.  Co.,  Lehman 

y.    (Wis.) 1069 

Chicago  &  N.  W.  R.  Ck>.,  Eyans  y.  (Minn.)  876 
Chicago   &   N.   W.    R.   Co.,   Graham   y. 

(Iowa)    578 

Chicago  &  N.  W.  R.  Co.,  Minnesota  &  Dakota 

Cattle  Co.  y.   (Minn.) 493 

Chicago  &  N.  W.  R.  Co.  y.  Rolfson  (S.  D.)  843 

Chrmflanson  v.  Hughes  (N.  D.) 884 

Chute  y.  Downs  (Minn.) 1134 

Citizens*  State  Bank  of  Manawa,  Castello 

y.    (Wis.) 769 

City  of  Centeryille  y.  Turner  County  (S.  D.)  SFiO 
City  of  Flint  y.  Stockdale's  Estate  (Mich.)  279 
Ci^  of  Superior  y.  Donglas  County  Tel. 

C!o.  (Wis.)  1023 

Clark,  McCJuire  y.  (Neb.) 675 

Clark,  State  r.  (Iowa) 957 

Clark.   Watson  y.  (Iowa) 913 

Clement  t.  Crosby  &  Co.  (Mich.) 263 

Cleveland,    Wilson    y.    (Mich.) 284 

CSrde,   Plank  &  Macadamized  Boad  Co., 

Rawlings   y.  (Mich.) 604 

Goad  V.  Schup  (Iowa) 900 


Pas* 

C3ocklns  y.  Bank  of  Alma  (Neb.) 18 

0>lfaz  ConsoL  Coal  0>.,  Hodges  y.  (Iowa)  008 
Colfax   Coiuty,    Union   Pac.   R.   Co.   y. 

(Neb.)    29 

Colgate  Farmers'   Eleyator  Co.,   Umsted 

y.  (N.  D.) 890 

Collins  y.  Smith  aowa) 839 

Colton,    Wapello    State    Say.    Bank    y. 

(Iowa)    140 

Common  Conncil  of  City  of  Detroit,  Union 

Trust  Co.  y.  (Mich.) 621 

Common   Conncil   of  City  of  Lndington, 

Mills  y.  (Mich.) 1062 

Clomstock,    Kathan   y.    (Wis.) 1044 

Conger  y.  HaU  (Mich.) 1073 

(Donley  y.  Supreme  C!ourt  I.  O.  F.  (Mich.)  667 

Connelly,  People  y.  (Mich.) 80 

Connor  Co.,  Bretz  y.  (Wis.) 717 

Ck>nrad  Seipp  Brewing  Co.  y.  Green  (S.  D.)  662 
Continental    Casualty    Co.,    Bakaiars    y. 

(Wis.)    721 

Cooke  y.  Iverson  (Minn.) 251 

C!ook  y.  SUte  (Neb.) 706 

Cook,  State  y.  (Iowa) 683 

Cook,  Ward  y.  (Mich.) 785 

(3ook  y.  Whiting  (Iowa) 835 

Cook's  Estate,  In  re  (Iowa) 678 

Coon,  Rodgers  Shoe  Oo.  y.  (Mich.) 133 

Cooper  y.  Brown,  three  cases  (Iowa)....  144 

Coegraye,  State  y.  (Neb.) 885 

Coulthard  y.  Mcintosh  (Iowa) 233 

(3oyell  y.  Bright  (Mich.) 101 

Cram  y.  Chicago,  B.  &Q.  R.  C!o.  (Neb.). .    31 

Crandall,  Fowler  y.   (Wis.) 723 

Cressy  y<  Republic  Creosoting  Co.  (Minn.)  484 

Crosby  &  Co.,  CSement  y.  (Mich.) 263 

CJrowley  Electric  Co.,  Horton  v.  (Minn.)  312 
Cadahy  Packing  Co.,  Tarnoskl  y.   (Neb.)  671 

Culver,  Steele  y.  (MichJ 95 

Gushing  y.  Winterset  (Iowa) 015 

Dahl,  State  y.   (Wis.) 748 

Dally  y.  Auzer  (Minn.) ..1135 

Dalm  y.  Bryant  Paper  Coi  (Mich.) 257 

Dancey,  Watters  y.  (S.  D.) 430 

Davis  y.  Iowa  Fuel  Co.  (Iowa) 815 

Davis   y.   School   Dist  of   City  of  Sonth 

Omaha    (Neb.) 88 

Davis  y.  Stems  (Neb.) 672 

Dead  wood,  Whittaker  y.  (S.  D.) 590 

Dean  y.  Dimmick  (N.  D.) 245 

Deinzer,   Hamilton  y.   (Mich.) 1<H 

Delfs  V.  Dunshee  (Iowa) 236 

De  Lisle.   Roberge  v.   (Mich.) 362 

Delor  y.  Donovan  (Mich.) 196 

Deloria  y.  Atkins  (Mich.) 650 

Derosia  y.  Loree  (Mich.) 357 

Des  Moines  Life  Ins.  Co.,  McNaughton  y. 

(Wis.)    7S4 

Des  Moines,  Miller  v.  (Iowa) 226 

De  Sota  Oo-Operative  Creamery  Ob.,  Ver- 
mont Farm  Machinery  Co.  y.  (Iowa)...  930 
Detroit,  F.  B.  Holmes  &  0>.  y.  (Mich.)..  606 

Detroit,  Lyie  y.  (Mich.) 108 

Detroit    Weber    y.    (Mich.) 670 

Detroit   Cntizens'   St    R.   Co.,  McQoisten 

y.    (Mich.) 107 

Detroit    J.    &   O.    R.    Co.,    Pritchett   v. 

(Mich.)    1134 

Detroit  United  Ry.,  Beattie  y.  (Mich.)..  657 
Detroit  United  Ry.,  Carbary  v.  (Mich.) ....  387 
Detroit  United  Ry.,  Fournier  v.  (Mich.),.  290 

Detroit  United  Ry.  y.  Lau  (Mich.) 130 

Detroit  United  Ry.,  Treat  v.  (Mich.)....  93 
Detroit  &  M.  R.  Co..  Gates  y.  (Mich.).  .1078 

Diem  y.  Drogmiller  (Mich.) 637 

Dime  Say.  Bank  v.  Fletcher  (Mich.) 540 

Dimmick,  Dean  y.  (N.  D.) 245 

Dinneen,  Rez  Buggy  Co.  y.  (S.  D.) 433 

District  (Tourt  of   Fourth  Judicial  Dist, 

State  y.  (Mijin.) 814 

Dodge  (Tounty  Bank  y.  McGiverin  (Neb.).  848 

Doherty  y.  Wing  (Wis.) 716 

Dolan  y.  MaxweU  (Iowa) 023 

Donovan,  Delor  v.  (Mich.).... 196 

Donovan  y.  Hyde  (Wis.) 774 


Digitized  by  VjOOQ  l€ 


OASES  BKPOBTBOk 


Dmerui  t.  State  CWb.) 1022 

Dorfl  T.  St.  Adelbert's  Aid  Soe.  (Mich.)..    82 

Doney  t.   Wellnum  (Neb.) 088 

DoDslka  GoontT,  Spalding  y.  (NebO 888 

Douglas  Oonnty  TeL  Co.,  City  of  Buperiw 

▼.    (Wis.).... 1028 

Dowd,  Arnold  y.  (Neb.) 6»0 

Downs,  Chnte  y.  (Minn.) 1134 

Dojie  T.  Wa«ner  (MinO:) 816 

Dralle  ▼.  Reedsborg  (Wis.) 771 

Dring  T.  St.  Lawrence  Tp.  (S.  D.) 664 

DrogmiUer,  Diem  y.  (Mich.) 637 

Doffleld,   Saginaw  Ooontjr   8ay.   Bank  y. 

(Mich.)    186 

DuS,   State  y.  (Iowa) 820 

Dagan   y.   Boyne  Citjr.  O.  &  A.   B.   Cio. 

(Mieb.) 1094 

DoliriDg.  Starli  r.  (Wis.) 1131 

Dnlntli    £>diaon    Blectrie   Co.,   MtisoU   y. 

(Minn.)    499 

Dolntli  St.  R.  Co.,  Fosnes  y.  (Wis.) lOM 

Dnnkler  t.   Mc(3arthy  (Mich.) 126 

Dnnshee,   Delft  y.   Uowa) 230 

Dayal  t.  Adyance  Thresher  Co.  (Neb.)....  880 
Dwight   Tp.,    Hunter    y.    (MichO 267 

Bast,  In  re  (Iowa) 163 

East  Grand  Forks,  Peet  y.  (Minn.) 827 

Bdmisten.  J.  I.  Case  Threshing  Mach.  Co. 

y.    (Neb.) 891 

Bdsall,    Brown  y.   (S.   D.) 6158 

Edwards  y.  Bngadine  Lamber  Co.  (Midi.).  .1078 
Kimennan,    Shepard    Drainage    Dist    Y. 

(Wis.)    776 

EIlc    Cement  &   lime   <3o..    Maxwell   y. 

Mich.)    , 225 

EUia.  Blillis  y.  (Minn.) 1119 

Emerson  &  Co.,  Ross  y.  (Minn.) 1135 

Empson  y.  Reliance  Gold  Min.  Co.  (S.  D.). .  846 
Ekkgadine      Lumber     Co.,      Eldwards     y. 

(Mich.)    107.1 

En^e«  y.  Morgenstem  (Neb.). 688 

&igland  y.  Minneapolis,  St  P.  &  S.  S.  M. 

B.  Cb.  (Minn.) 464 

Ennis,  Tisdale  y.  <Iowa) 9R9 

Erickson,  Michand  y.  (Minn^ 824 

Eyangelish  Lntherlsh  St  Martin's  <3eme- 

inde  y.  Prenss  (Wis.) 719 

Eyans  y.  Chicago  &  N.  W.  R.  Co.  (Minn.)  876 

Eyener  Mfg.  Co.  y.  Fink  (Minn.) 160 

Excelsior  Sopply  0>.  y.  Charles  A.  Stick- 

ner   Co.  (Minn.) 870 

Kjnnier,  Bnckeye  Brewing  Go.  y.  (Mich.)..  124 

Fair  Oaka,  CUcago,  M.  &  St  P.  B.  (X  t. 

(Wi«.)    810 

Farm,  Stem  r.  (N.  D.) 403 

Faru.  Mahafly  y.  (Iowa) 884 

Fanners'  Co-Op.  Shipping  Ass'n  y.  Oeotg* 

A.   Adams  Grain  Co.  (Neb.) 66 

Fanners'   Loan   &  Trust  Ck>.,  Leader  t. 

(Iowa)    838 

Fanners'  ft  Merchants'  Ina.  Co.,  Bassett 

T.    (NebJ. 708 

Furar  r.  xankton  Land  &  Inyestment  Co. 

(8.    D.) 686 

FkneUy.  Base  (Mich.) 107 

Faobw  T.  Keim  (Neb.) 849 

F.  B.  Holmes  &  Co.  y.  Detroit  (Mich.)...  606 
Federal  Union  Snrety  C!o.,  People  t.  (Mich.)  858 

PeOowa,    MrDnSee    t.    (Mich.) 276 

FentOD  T.  Byan  (Wis.) 766 

Fertig,  Price  y.,  two  cases  (Iowa) 814 

Fet>  T.  Leyendecker  (Mich.) 100 

Fink.  Brena  Mfg.  Co.  y.  (Minn.) IfiO 

Finnca  t.  Seloyer,  Bates  &  Co.  (Minn.)..  174 
Fire    Aas'a    of    Philadelphia,    Mason    y. 

(S.    D.) 428 

First  Nat  Bank,  Andenon  y.  (Iowa)....  018 
First    Nat    Bank    y.    Union    Tmst    Co. 

(llleh.)    647 

Fisdier'a  SMate,  In  re  (Mich.) 257 

Siaher    A    Aney,    3.    L    Case   Threshing 

Maeli.  Co.  y.  (Iowa).. R7R 

FUk  y.  Keoknk  (Iowa) 896 

ntek  ▼.  Martin  (Neb^ 60 


Page 

FitsgeraU,  SUte  y.  (Iowa) 928 

Fitspatii^  y.  Manheimer  (Mich.) 88 

Flayer,    Pattiuson    t.    (Mich.) 2i6 

Fleischer,    Sheffer    y.    (Mich.) 648 

Fleming  y.  Fonts  (Minn.) 480 

Fletcher,  Dime  Say.  Bank-y.  (Mich.)....  640 

Flint    Sanford   r.    (Minn.) 816 

Floyd.  SUte  y.  (Iowa) 688 

Flynn,    Straach    y.    (Minn.) 320 

Folsoffl  y.  State  Veterinary  Board  (Mich.)  628 
Foratrom,   Minneapolis,   St.    H.,   U.   &  D. 

Electric  Traction  Co.  y.  (Minn.) 461 

Forsythe  y.  Thompson's  Estate  (Mich.)...  219 

Foray th  r.  Saginaw  (Mich.) 523 

Fosnes  r.  Duluth  St  R.  (}o.  (Wis.) 1054 

Foster,  Stine  t.  (S.  D.) 598 

Foulke  y.  Agency  City  (Iowa) 823 

Foumier  y.  Detroit  United  By.  (Mich.). .. .  299 

Foumier,    State   y.    (Minn.) 829 

Fonts,  Fleming  y.   (Minn.) 490 

Fowler  y.  CrandaU  (Wis.) 723 

Fox,  Rumsey  y.  (Mich.) 620 

Friendshuh.  Minneapolis,  St  P.,  B.  &  D. 

Electric  Traction  Co.  y.  (Minn.) 461 

Fromhols  y.  McGahey  (Neb.) 879 

Fruit  Dispatch  Ck>.  y.  OUinsky  (Neb.)....  45 
Pry,    BixTer    y.    (Mich.) 118 

Gallon  y.  Houae  of  Good  Shepherd  (Mich.)  631 

Gamsey  y.  Boyce  (Mich.) 371 

Gary  TeL  Co.,  Holden  y.  (Minn.) 1018 

Oatea  y.  Detroit  &  M.  B.  Co.  (Mich.)...  .1078 

Gault  y.  Gault  (Mich.) 639 

Geddis  v.  Northwestern  Trust  C!o.  of  Oma- 
ha, Neb.  (S.  D.) 687 

George  A.  Adams  Grain  Co.,  Farmers'  Cd- 

Op.  Shipping  Ass'n  y.  (Neb.) 6S 

Germain  y.  Union  School  Dist  of  City  of 

Stanton    (Mich.) 524 

Gero  y.  Abbott  (Mich.) % 807 

Gillnsky,  Fruit  Dispatch  Co.  t.  (Neb.)....    45 

Gilligham  y.  Ray  Qdich.) HI 

GUruth,  Minneapolis  Threshing  Mach.  Ca 

y.    (Minn.) 466 

Gllnea  y.  Oliver  Iron  Mining  Co.  (Minn.)  161 
Gloekner  y.  Hardwood  Mfg.  Co.  (Minn.). ..  465 

Oodkin  y.  Weber  (Mich.) 1083 

Gogebic  Lumber  Co.  y.  Moore  (Mich.)....  128 
Goodland,  State  Bank  of  Bamnm  y.  (Minn.)  468 

Goodwin  y.  McGaughy  (Minn.) 6 

Gorham  y.  Johnson  (Mich.) 181 

Gowan  y.  Smith  (Mich.) 286 

Graham,    Cavett    y.    (Neb.) 816 

Graham  y.  Chicago  &  N.  W.  R.  (X  (Iowa)  673 
Grand  Rapids,  (3.  H.  &  M.  R.  Co.,  Bottje 

y.    (Mich.) 87 

Great  Northern  R.  <3o.,  Hope  y.  (N.  D.)..  897 
Great   Northern    R.    Co.,   McPheraon   y. 

(Wis.)    1022 

Great    Northern    B.    0>.,    Newbury    y. 

(Minn.)    1117 

Green,    Conrad    Seipp    Brewing    Co.    y. 

(8.  D.) 6ea 

Green,  Harrison  y.  (Mich.) 205 

Green  Bay,  O.,  M.  &  S.  W.  B.  Co.,  Wolf 

y.    (Wis.) .'743 

Green  Bay  &  MissiMippi  (Tanal  Co.  y.  Teln- 

lab  Paper  Co.  (WisJ  1063 

Qreenway  y.  Taylor  C^onnty  (Towa) 943 

Griffith  y.  Wapello  Ck>al  Co.  (Iowa) 581 

Orinnell,  Jackson  t.  (Iowa) 911 

Gross  y.  Jones  (Neb.) 681 

Omben,  Brnnke  y.  (Neb.) 37 

Grnenbeig  t.  Heywood  Mfg.  Co.  (Minn.). .  824 

Haaren  y.  Mould  (Iowa) 821 

Hackett  y.  Mcllwain  (Mich.) 651 

Hagau,  Kipp  v.  (Minn.) 817 

Hall  y.  Chicago,  B.  &  Q.  B.  O.  (Iowa)..  894 

Hall,   Conger  y.    (Mich^ 1073 

Hall,  Stewart  y.  (town) 609 

Hamilton  y.   Deinzer  (Mich.) 104 

Hanson,  Spear  y.  (Mich.) 110 

Hardwood  Mfg.  Co.,  Gloekner  v.  (Minn.). .  466 
Harkins,    Minneapolis,    St   P.,   R.    &    D. 
Electric  Trsction  Cx>.  y.  (Minn.) 460 

Digitized  by  VjOOQ  l€ 


122  NORTHWESTERN  REPORTER. 


Pas* 

Hurley  T.  Harler  (WU.) 761 

Harmon,    Robinson    t.    (Mich.) 100 

Harrintrton  t.  Wabash  R.  Co.  (Minn.)....     14 

Harris  t.  Boutwell  (Mich.) 179 

Harrison  t.  Albia  (Iowa) 816 

Harrison  v.  Green  (Mich.) 205 

Hassard,   Lipsett  t.   (Mich.) lOUX 

Hastings,    Winkler   t.    (Neb.) S58 

Hattcn  Lnmber  CO.,  Malueg  t.  (Wi«.)..1057 

Hayes,  State  t.  (S.  D.) 652 

Hays,   Humphrey  t.  (Neb.) 987 

Hayworth,  Intemntioual  Harrester  Co.  of 

America  t.  (S.  D.) 412 

Haze,  Farrell  t.  (Mich.) 1U7 

Heath  t.   Caikina  (Mich.) 84 

Hecla   Co.,  Plumb   v.   (Michj 208 

Bendrickaon  t.   Wisconsin   C/ent   R.   Go. 

(Wis.)    768 

Herald  Pub.  Co.,  Lawrence  t.  (Mich.)....  1081 

Hespen  t.  Wendeln  (Neb.) 852 

Heywood  Mfg.  0>.,  Gruenberg  t.  (Minn.)  312A 
Hicks  T.  Aultman  Engine  &  Thresher  Co. 

(Minn.)    15 

Hicks  T.  J.  B.  Pearce  Co.  (Mich.) 1067 

Higgins  T.  Vandeveer  (Neb.) 843 

HiUIker  t.  Northwest  Thresher  Co.  (Iowa)  906 

Himmelman,    South  wick   v.    Odinn.) 1016 

Hinltley,  Acme  Harvesting  Mach.  Co.  t. 

(8.   D.) 482 

Hirst  Abegg  v.  aowa) 838 

Hodges  T.  Colfax  Consol.  Oal  Co.  (Iowa)  906 
HodgaoD  T.  State  Finance  Co.  (N.  D.)....  336 

Hogan,  State  v.  (Iowa) 818 

Hogenaon,   Sjoli   t.    (N.   D.) 1008 

Holden  v.  Gary  TeL  Co.  (Minn.) 1018 

Holden,   Humphrey   ▼.    (Mich.) 103 

Holland  r.  Sheehnn  (Minn.) 1 

Holllster  r.  Strahon  (S.  D.) 604 

Holmes  &  Co.  t.  Detroit  (Mich.) 606 

Hol«  V.  Burling  (Neb.) 681 

Hope  T.  Great  Northern  R.  Co.  (N.  D.). ..  997 

Horeky,  Hughes  v.  (N.  D.) 799 

Horton  v.  Crowley  Electric  Co.  (Minn.) ....  812 
House    of    Good     Shepherd,     Gallon    t. 

(Mich.)  e.<?i 

Hoyer  r.  BachhoK  (Iowa) 964 

Hughes,  Christiauson  t.  (N.  D.) SM 

Hngbea  v.  Horsky  (N.  D.) 799 

Humphrey  v.  Hays  (Neb.) 987 

Humphrey  v.  Holden  (Mich.) 103 

Hunt,  Langworthy  Lnmber  C^.  t.  (N.  D.)  866 

Hunt,   State  t.   (Iowa) 902 

Hunter  t.  Dwight  Tp.  CMich.) 267 

Hyde,   Ponovan   v.   (Wis.) 774 

Hyde's  Will,  In  re  (Wis.) 774 

Illinois  Commercial  Men's  Ass'n  of  (Chica- 
go, ni.,  Taylor  t.  (Neb.) 41 

Immen,  Steger  y.  (Mich.) 104 

Independent  School  Dist.  No.  12,  St  Louis 

County,  Smith  t.  (Minn.) 17.<) 

Ink  T.  Rohrig(S.  D.) 694 

International    Harvester    Co.    of   America 

▼.  Hayworth  (S.  D.) 412 

International  Harvester  Co.  of  America  t. 

Iowa  Hardware  0>.  (Iowa) 961 

Ionia  Circuit  Judge,  Skutt  v.  (Mich.)....  864 

Iowa  Cent  R.  Co.,  Willard  v.  (Minn.) 169 

Iowa  Fuel  Co.,  Davis  v.  (Iowa) 815 

Iowa    Hardware   Co.,   International   Har- 
vester Co.  of  America  t.  (Iowa) 961 

Iverson,   Cooke   v.   (Minn.) 261 

Iverson,   State  t.   (Minn.) 166 

Jackson  v.  Orinnell  (Iowa) 911 

J.  B.  Pearce  Co.,  Hicka  v.  (Mich.)....*.  .1087 

Jefferson,  Bnmum  v.  (Minn.) 453 

Jerome  v.  Rust  (S.  D.) 344 

J.  I.  Case  Threshing  Mach.   Co.  t.  Bd- 

mlstea    (Neb.) 891 

J.  I.  C!ase  Threshing  Mach.  C!o.  t.  Fisher 

&  Aney  (Iowa) 675 

J.  I.  Case  Threshing  Mach.  0>.  v.  Johnson 

(Wis.) 1037 

J.  L.  Owens  0>.,  Showen  v.  (Mich.)....  640 
Johnson,   Oorham  t.    (Mich.) 181 


Pas* 

Johnson,  J.  L  Case  Threshing  Mach.  Co. 

V.    (Wis.) 1037 

Johnson  v.  Minneapolis  &  St  P.  R.  Co. 

(Minn.)    10 

Johnson  v.  Peterson  (Neb.) 683 

Johnson  v.  Rickford  (N.  D.) 386 

Johnson  v.  Terry  (Neb.) 984 

Jones,  Gross  v.   (Neb.) 681 

Jones  V.   SUte  (Neb.) 862 

Jones,  State  v.  (Iowa) 241 

Jones  v.  Sutherland  (Iowa) 901 

Juni,    Spreng    v.    (Minn.) 1015 

Junkin,   State  v.   (Neb.) 473 

Kalamasoo,  L.  8.  &  O.  R.  Co.,  Pere  Mar- 
quette R.  Co.  T.  (MichO S5S 

Kammann  v.  Barton  (S.  D.) 416 

Kamme],  SUte  v.  (S.  D.) 420 

Karnes  r.  Karnes  (Wis.) 717 

Karppinen  v.  Tamarack  Min.  0>.  (Mich.)..  433 

Kathan  v.  Comstock  (Wis.) 1044 

Keim,  Fanber  v.  (Neb.) 849 

Keinberger,  State  Bank  of  Reeseville  v. 

(Wis.)    1182 

Kellogg  Liunl>er  &  Mfg.  Co.  t.  Welwter 

Mfg.  CJo.  (Wis.) 737 

Kellogg  Switchboard  St  Supply  C^.,  Bron- 

seau  T.  (Mich.) 620 

Kelly,    Williams    Bros.    Lnmber    C^.    T. 

(S.    D.) MQ. 

Kendall  v.  Boyer  (Iowa) 941 

Kennedy  v.  London  &  Lancashire  Fire  Ins. 

Co.    (Mich.) 134 

Kennon,  Andrews  v.  (Iowa) 840 

Keokuk,  Fisk  t.  (Iowa) 8dR 

Kidder  v.  Barnes  (N.  D.) 378 

Kinney,  Young  v.  (Neb.) 679 

Kipp  V.  Haf an  (Minn.) 317 

Koreis  v.   Minneapolis  &   St   L.   R.  Co. 

(Minn.) 668 

Krsnioh,    Strohsohein   v.    (Mich.) 17R 

Knudsen  v.  Muskegon  (Mich.) 519 

Kyle  T.  Oiicago,  B.  &  Q.  R.  Co.  O^eb.)..    ST 

La  CSiance  v.  Machia  Qf  ich.) 271 

Lacy  V.  Piatt  Power  &  Heat  0>.  (Mich.). ..  112 
Lake  Shore  &  M.  S.  R.  Co.,  Perego  v. 

(Mich.)    635 

Lally,  State  v.  (Minn.) 18 

I^ne,  State  v.  (Iowa) 683 

Langley's  Estate,  In  re  (MichJ 1134 

Langworthy  Lumber  Co.  v.  Unnt  (N.  D.)  86& 

Lau,  Detroit  United  Ry.  v.  (Mich.) 130 

Lawrence  v.  Herald  Pub.  Co.  (Mich.) 1084 

Lawrence  v.  Vinkemulder  (MichO 88 

Leader  t.   Fanners'   Loan   &  Trust   0>. 

(Iowa)    833 

Leader,   Ross   v.   (Iowa) 812 

Lehman  v.  Chicago*  St  P.,  M.  &  O.  R. 

Co.  (Wis.) 105» 

Leistikow  v.  Zuelsdorf  (N.  D.) 840 

Lemon  ▼.  Macklem  (Mich^ 77 

Lemon  v.  Sigonrney  Sav.  Bank  (Iowa). . . .  93& 
Levtzow,    Northwestern    Mortgage    Trust 

Co.  V.   (S.   D.) 600 

Leyendecker,  Fetz  v.  (Mich.) lOO 

Ligbtner  t.  Prentis  (Mich.) 874 

Lincoln  &  N.   W.   R.   Co.,   Beckman   t. 

(Neb.)    994 

Lindsay  r.  Booge  (Iowa) 819 

Liniger  t.  State  (Neb.) 70& 

Lipsett  T.  Hassard  (Mich.) 1091 

London  &  Lancashire  Fire  Ins.  Co.,  Ken- 

nedy   t.   (Mich.) 134 

Loosing  V.  Loosing  (Neb.) 70T 

Lord,  Wilkinson  v.  (Neb.) 699 

liOree,  Derosia  v.  (Mich.) 357 

Loree  t.  Vedder  (Mich.) 62S 

Loree's  Estate,  In  re  (Mich.) 628 

Luce,  Massey  v.  (Mich.) 514 

Ludlow,  Monroe  Tel.  Co.  v.   (Wis.) 1030 

Land  v.  Saigent  Mfg.  Co.  (Mich J 372 

Lose  V.  Lnse  (Iowa) 970 

Lyle  V.  Detroit  (Mich.) 108 

Maag  T.  Staverad  (S.  D.) 850 


Digitized  by  LjOOQ  l€ 


OASES  REPOBTBD. 


Pat* 

McCatwT.  State  (Neb.) 888 

McCaUmn,   State   t.    (S.   D.) S86 

McCarthy,  Dnnkley  t.  (Mich.) 120 

MeClatchey  t.  Anderson  (Neb.) 67 

McDuffee  t.  Fellows  (Mich J 276 

McEaioy    T.    Metropolitan    Life    Ins.    Co. 

(Neb.)    27 

McGahey,  Fromholz  t.  (Neb.) 878 

McGan^iy,  Goodwin  t.  (Minn.) 6 

UeGeiLTj  T.  Brown  (S.  D.) 605 

McOirerin,  Dodge  Connty  Bank  t.  (Neb.)  848 

McGoire  t.  Clark  (Neb.) 675 

McOnire,  SUte  t.  (Minn.) 1120 

Machia,  La  C!haDce  T.  (Mich.) 271 

Mclimin,  Hackett  t.  (Mich.) 651 

Mcintosh,  Coolthard  t.  (Iowa) 233 

Mcintosh,  State  t.  (Minn.) 462 

Marfclem,  Lemon  v.  (Mich.) 77 

McLaren,  Slocnm  v.  (Miun.) 871 

McNan^ton  t.  Des  Moines  Life  Ins.  Co. 

(Wis.{    764 

Macomber,  Moody  v.  (Mich.) 617 

McPbeiBon    t.    Great    Northern    B.    Co. 

(Wis.) 1022 

McPnisley,  State  v.  (Iowa) 930 

McQoater  t.  Mandell  (Mich.) 368 

McQuisten  ▼.  Detroit  Citisens'  St.  B.  (X 

(Mi«4.)    107 

Madison,  Piper  t.  (WisJ 730 

Madison,  State  ▼.  (S.  D.) 647 

ManlL  State  v.  (N.  D.) 830 

Mabaffy  t.  Paris  (Iowa) 934 

Malaeg  t.  Hatten  Lumber  Co.  (Wis.) 1057 

Mandell,  McQuater  t.  (Mich.) 868 

Manbeinier,  Fitzpatrick  t.  (Mich.) 83 

Manks  t.  Moore  (Minn.) 5 

Manning,  Bonacum  ▼.  (Neb.) 711 

Manning's  Estate,  In  re  (Neb.°) 711 

Marin  v.  Titns  (S.  D.) 596 

Mar  T.  Shew  Fan  Qui  (Minn.) 321 

Markley  t.  Western  Union  Tel.  C!o.  (Iowa)  136 
Marshall  r.  Saginaw  Valley  Traction  Co. 

(Mich.)    131 

liUrtin,    Pitch    t.    (Neb.) 60 

Maser,   Allen   t.    (Mich^ 88 

Mason,  Chicago,  M.  &  St.  P.  B.  Co.  r.  (S. 

D.) 601 

Mason  t.  Fire  Ass'n  of  Philadelphia  (S.  D.)  423 

Massey  t.  Lace  (Mich.) 514 

Maxwell,  Dolan   t.   (Iowa) 923 

Maxwell  t.  Elk  Cement  &  Lime  Co.  (Mich.)  225 

Meadows  t.  Osterkamp  (S.  D.) 419 

Meeker,  Westcott  y.  (Iowa) 964 

Mehloff,  Northwest  Thresher  Co.  v.  (S.  D.)  428 

Melville,  Sennett  y.  (Neb.) 851 

Mengel  v.  Mengel  (Iowa) 890 

Menomonie     Hydraulic-Press    Brick     C!o_ 

Phillips  ▼.    (Mtan.) 7  874 

Merrinane  y.  Miller  (Mich.) 82 

Metcalf  Land  Co.,  Yonng  y.  (N.  D.) 1101 

Metropolitan   Life   Ins.   Co.,    McESroy   t. 

(Neb.) 27 

Midiaad  y.  Erickson  (Minn.) 824 

Mieblnui  Cent.  R.  Co.  v.  Miller  (Mich.).. .  473 
Michigan  United  Rys.  Co.,  Rouse  y.  (Mloh.)  632 
Miles  y.  Peon  Mutual  life  Ins.  Co.  of  Phil- 
adelphia (S.  D.) 249 

Miller  y.  Des  Moines  (Iowa) 226 

Miller,  Merrinane  y.  (Midi.) 82 

Miller.  Michigan  Cent.  R.  (jo.  y.  (Mich.). .  473 

Miller  y.  Peter  (Mich.) 780 

Miller  y.  Pmseian  Nat.  Ins.  Co.  (Mich.).  .1093 

Miller  T.  Roeebrook  (Iowa) 837 

Miller  y.  Sovereign  CSamp  Woodmen  of  the 

Worid    (Wis.) 1126 

Millia  y.  Ellis  minn.) 1119 

MHls,  In  re  (Mich.) 1080 

Mills  T.  Common  Cktuncil  of  City  of  Lud- 

ington   (Mich.) 1082 

Minneapolis,  St.  P.,  R.  &  D.  Electric  Trac- 
tion Co.  y.  Forstrom  fMinn.) 461 

Minneapolis,  St  P.,  R.  &  D.  Electric  Trac- 
tion Co.  y.  Friendsbuh  (Minn.) 451 

Minneapolis,  St.  P..  R.  ft  D.  Electric  Trac- 
tion Cow  T.  Harkitts  (Minn.) 460 


Pag* 

Minneapolis,  St  P.,  R.  &  D.  Electric  Trac- 
tion Co.  y.  St.  Martin  (Mioa.) 452 

Minneapolis,  St   P.  &  S.   S.   M.  B.  (X. 

Englund    y.    (Minn.) 454 

Minneapolis  Thieshing  Mach.  Co.  y.  Gil- 

mth    (Minn.) 466 

Minneapolis  &  St   L.  B.  Co.,  Koreis  y. 

(Minn.)    668 

Minneapolis  &  St  P.  B.  C!o.,  Johnson  y. 

(Minn.)    10 

Mmneapolis  &  St  P.  S.  R.  Co.,  Village  of 

Excelsior  v.  (Minn.) 486 

Minnesota  &  Dakota  C!attle  Co.  y.  (Chicago 

&  N.  W.  R.  Co.  (Minn.) 493 

Mississippi  &  Rum  River  Boom  Co.,  C^isey 

y.    (Minn.) 376 

Mittnacht,  Chambers  v.   (8.  D.) 434 

Monaghan     v.     Northwestern     Fuel     Co. 

(Wis.) 1066 

Monaghan  y.  Vanatta  (Iowa) 610 

Monks,  Williams  v.  (Minn.) 6 

Monona  C!6nnty,  Chicago,  M.  &  St  P.  B. 

Co.  y.  (Iowa) 820 

Monroe  v.  Bnshnell  (Mich.) 608 

Monroe  v.  Bushnell  (Mich.) 1134 

Monroe  Tel.  Co.  v.  Ludlow  (Wis.) 1030 

Montross,    Schnider  v.    (Mich.) 634 

Monture  y.  Begling  (Wis.) 1129 

Moody  y.  Macomber  (Mich.) 617 

Moore,  Gogebic  Lumber  Co.  y.  (Midi.). . . .  128 

Moore,  Mauks  y.  (Minn.) 6 

Morgenstem,  Engles  v.  (Neb.) 688 

Mots  y.  Sheeto  (Iowa) 904 

Mould,  Haaren  y.  (Iowa) 921 

Mould,    Sawyer   y.    (Iowa) 813 

Mould,  Stevenson  T.  (Iowa) 921 

MuUan's  Will,  In  re  (Wis.). 723 

Mullen  y.  Woodmen  of  the  World  (Iowa). .  903 
MuuBon,  Board  of  Sup'rs  of  Gratiot  Coun- 
ty V.  (Mich.) , 117 

Munzer  v.  Parker  (Minn.) 875 

Murphy,  Attorney  General  v.  (Mich.) 260 

Murphy,  Westiake  v.  (Neb.) 684 

Muskegon,    Kuadsen   y.    (Mich.) 619 

Muskegon,  Thayer  Lumber  Co.  y.  (Mich.)  189 
MuBolf    y.    Duluth    Edison    Electric    Co. 
(Minn.)    499 

Naacke,  Scott  v.  (Iowa) 824 

Naldrett,  Speer  v.  (Mich.) 224 

Napa  Valley  Wine  Co.  v.  Caasanova  (Wis.)  812 

Nebraska  Git j ,  Stone  v.  (Neb.) 68 

Neeley  v.  Roberts  (8.  D.) 655 

Nelson  y.  Pittsburg  Coal  Dock  C!o.  (Mich.)  777 
Newbury  v.  Great  Northern  B.  Co.  (Minn.)1117 

Nichols  y.  Bnell  (Mich.) 217 

Nichols  V.  Roberts  (Iowa) 842 

Nolan.  State  v.  (Minn.) 256 

Norman,  People  v.  (Mich.) 869 

Northern  Pac.  R.  Co.,  Raiolo  v.  (Minn.)..  489 
Northern  Pac.  B.  C!o.,  Speck  v.,  two  cases 

(Minn.)    497 

Northwestern    Fire    &    Marine    Ins.    C!o., 

Tavlor-Baldwin  Co.  v.  (N.  D.) 896 

Northwestern-  Fuel     O.,     Monaghan     y. 

(Wis.)    1066 

Northwestern  Leather  Co.,  Sabin  y.  (Mich.)  300 
Northwestern  Mortgage  Trust  Co.  y.  Levt- 

jiow  (S.  D.) 600 

Northwestern    Nat     Bank,     Andrews    y. 

(Minn.)    409 

Northwestern  Trust  Co.  of  Omaha,  Neb., 

Geddis  v.  (S.  D.) 687 

Northwest     Thresher     Co.,     Hilliker     y. 

(Iowa)    906 

Northwest  Thresher  Co.*  v.*  *Mehioff'(S.'  D.)  428 

0'0>nnor  y.  Chicago,  B.  I.  &  P.  B.  Co. 

(Iowa)   947 

O'Connor  y.   Queen   Ins.   Co.  of  America 

(Wis.)   1038,  1122 

Oliver,  Sawyer  y.  (Iowa) 950 

Oliver  Iron  Min.  Co.,  Glines  y.  (Minn.) . . .  161 
Olson  y.  United  States  Sugar  CIo.  (Wis.)..  7TK 
O'Neil  v.  Adams  (Iowa) 976 


Digitized  by  VjOOQ  l€ 


zii 


122  NORTHWESTSBN  REPORTBB. 


Pag* 

O'Shea  r.  Brennic  (Neb.) 881 

O'Shea's  Estate,  In  re  (Neb.). 881 

Osterkamp,  Meadows  t.  (S.  D.) 419 

Overpeck's  WUl,  In  re  (Iowa) 928 

Ovid  Carriage  Co.  y.  Parsille  (Mich.)....  99 
Owens  Co.,  Showen  t.  (Mich.) 640 

Parker,  Manser  t.  (Minn.) 87B 

Paraille,  OTid  Carriage  Co.  ▼.  (Mich.)....    99 

Patterson,  Zellmer  v.  (N.  D.) 881 

Pattinson  v.   Flayer  (Mich.) 216 

Paulsrud  v.   Peterson   (Minn.) 874 

Peabody,  Western  Mfg.  Co.  t.  (N.  D.)....  832 

Pearce  Co.,  Hicks  ▼.  (Mich.) 1087 

Peck  T.   Baraboo   (Wis.) 740 

Peet  v.  East  Grand  Forks  (Minn.) 827 

Pennington    County    Bank    r.    Banman 

(Neb.)    848 

Peun  Mutual  Life  Ins.  Co.  of  Philadel- 
phia, MUes  T.  (S.  D.) 249 

People  V.  Andre  (Mich.) 98 

People  y.  Bankers'  Surety  Ca  (Mich.)....  853 

People  y.  Blake  (Mich.) 113 

People  y.  Connelly  (Mich.) 80 

People  y.  Federal  Union  Surety  Co.  (Mich.)  853 

People  y.  Norman  (Mich.) 869 

People  y.  Title  Guaranty  &  Surety  Co.  of 

Scranton,  Pa.  (Mich.) 865 

People  y.  Turja  (Mich.) 177 

People  y.  United  Stetes  Fidelity  &  Guar- 

anfar  Co.  (Mich.) 853 

People  y.  Van  Alstyne  (Mich.) . . . ; 193 

People  y.  Wilson  (Mich.) 297 

Perego  y.   Lake   Shore  &  M.    &   R.   Co. 

(Mich.)    635 

Pere  Marquette  R.  Co.  y.  Kalamacoo  It,  S. 

&  C.  R.  Co.  (Mich.) 356 

Pere  Marquette  R.  Co.  y.  Weilnan  (Mich.)  303 

Perry,  Pulpwood   Co.  y.   (Mich.) 652 

Peter,   Miller   y.   (Mich.) 780 

Peters  y.  gnaVely-Ashton  (Iowa) 836 

Peterson,  Johnson  y.  (Neb.) 683 

Peterson,  Paulsrud  y.  (Minn.) 874 

Peterson,  State  y.  (S.  D.) 667 

Phillips,  In  re  (Mich.) 654 

Phillips    y.     Menomonie    Hydraulic-Press 

Brick  Co.  (Minn.) 874 

Piatt  Power  &  Heat  Co.,  Laoy  v.  (Mich.)  112 
Pierce    y.    C.    H.    Bidwell    Thresher    Co. 

(Mich.)  628 

Pike,  Sammons  y.  (Minn.) 168 

Pike,   Wyman   y.    (Minn.) 810 

Piper  y.  Madison  (Wis.) 730 

Pittsburg  Coal  Co.,  Anderson  y.  (Minn.)..  794 
Pittobnrg  Coal  Dock  Co.,  Nelson  y.  (Mich.)  777 

Piatt,  Shepard  y.  (Mich.) 639 

Pleins  y.  Wachenheimer  (Minn.) 166 

Plowright.  In  re  (Wis.) 1043 

Plumb  y.  Hecla  Co.  (Mich.) 208 

Poppleton  T.  Poppleton  (Mich.) 272 

Prentis,  Ghapoton  y.  (Mich.) 874 

Prentis,  Lightner  y.  (Mich.) 874 

Preuss,  Ejyangelish  Lutherish  St.  Martin's 

Gemeinde  y.  (Wis.) 719 

Price  y.  Fertig,  two  cases  (Iowa) 814 

Price,  Reliable  Match  Co.  y.  (Minn.) ".  461 

Pritchett  y.  Detroit,  J.  &  C.  R.  Co.  (Mich.)1134 
Prussian  Nat.  Ips.  Co.,  Miller  y.  (Mich.).  .1003 

Pulpwood  Co.  y.  Perry  (Mich.) 552 

Pumphrey  y.  State  (Neb.) 19 

Queen  Ins.  Co.  of  America,  O'Connor  r. 
(Wis.)  1038,  1122 

Radii  T.  Sawyer  (Neb.) 980 

Raiolo  y.  Northern  Pac.  R.  Co.  (Minn.) . . .  489 
Randall,  Village  of  Lake  Odessa  v.  (Mich.)  517 
Ranney  Refrigerator  Co.  v.  Smith  (Mich.)     91 

Rasmussen  y.  Blast  (Neb.) 862 

Rawlings  y.  Clyde  Plank  &  Macadamised 

Road  Co.  (Mich.) 604 

Ray,   Gilligham   y.   (Mich.) Ill 

R.  (ionuor  Co.,  Breti  y.  (Wis.) 717 

Redhead,  Swift  Sc  Co.  y.  (Lowa.) 140 

Bed  Lake  Fails  MiU.  Co.  y.  Thief  RIyer 

S<alja  (Minn.) 872 


Pa«» 

Reedsbnrg,  Dralle  y.  (Wis.) 771 

Reed,  Wilber  y.  (Neb.) 63 

Regimg,  Montnre  y.  (Wis.) 1129 

Reimidc  y.  Strabbing  (Mich.) 183 

Reliable  Match  Co.  t.  Price  (Minn.) 461 

Reliance  Gold  Min.  Co.,  Empson  y.  (&  D.)  84tf 

Renyille  Co.,  In  re  (Minn.) 1120 

Republic  Oreosoting  Co.,  Cressy  y.  (Minn.)  484 

Res  Buggy  C:!o.  y.  Dinneen  (S.  D.) 433 

Rice's  Bistate,  In  re  (Mich.) 212 

Richey  y.  Union  Cent  Life  Ins.  Co.  (Wis.)  103O 

Rickford,  Johnson  y.  (N.  D.) 886 

Rieger  y.  Schaible  (Neb.) 860 

Rieger's  Estate,  In  re  (Neb.) 800 

Ringdahl,  Brown  y.  (Minn.) 469 

Roach  y.  Sanborn  Land  Co.  (Wis.) 102O 

Robbins  y.  Selby  (Iowa) 954 

Robeiga  y.  De  Lisle  (Mich.) 362 

Roberts,  Neeley  y.  (S.  D.) 655 

Roberts,  Nichols  y.  (Iowa) 842 

Roberts,   Shaw  y.   (Iowa) 932 

Robinson  y.  Harmon  (Mich.) 106 

Rohrig,  Ink  y.  (8.  D.) 69-4 

Rodgers  Shoe  Co.  y.  Coon  (Mich.) 133 

Rolfsou,  Chicago  &  N.  W.  R.  Co.  y.  (8, 

D.)   843 

Rosebrook,  Miller  y.  (Iowa) 837 

Rose,  SUte  y.  (Wis.) 751 

Ross,  In  re  (Wis.) 809 

Ross  y.  C.  E.  Emerson  &  Co.  (Minn.) 1135 

Ross  y.  Leader  (Iowa) 812 

Rouse  y.  Michigan  United  Rys.  Co.  (Mich.)  632 
Rowe  y.  Chicago,  M.  &  St.  P.  B.  Co.  (Iowa)  929 

Royal  Highlanders,  Briggs  y.  (Neb.) 69 

Rumsey  y.  Fox  (MichJ 526 

Rust,  Jerome   v.    (S.   D.) 844 

Ruth  y.  SUte  (Wis.) 733 

Ryan,  Fenton  y.  (Wis.) 756 

Sfibin  V.  Northwestern  Leather  Co.  (Mich.)  800 

Snsinaw,    Forsyth    y.    (Mich.) 523 

Sas;inaw    County    Say.    Bank    y.    Duffieid 

(Mich.)    186 

Sapinaw  Valley  Traction  Co.,  Marshall  y. 

(Mich.)     131 

Sbiur,  Ziuimer  y.  (Mich.) 663 

St.  Adelbert's  Aid  Soc,  Dorff  y.  (Mich.). .     82 

St.  John  T.  Sinclair  (Minn.) 164 

St.  Lawrence  Tp.,  Dring  y.  (S.  D.) 664 

St.  Martin,  Minneapolis,  St.  P.,  R.  &  D. 

Electric  Traction   Co.   y.    (Minn.) 452 

St  Paul  City  R.  Co.,  Schanno  y.  (Minn.)  783 
St  Paul,  M.  &  M.  R.  Co.  y.  Biakemoca 

(N.   D.) 833 

Sammons   y.   Pike   (Minn.) 168 

Sanborn  Land  Co.,  Roach  y.  (Wis.) 1020 

Sandell,   Ullman   y.   (Mich.) 617 

Sandell,   Ullman   y.   (Mich.) 1076 

Sanford  y.  Flint  (Minn.) 815 

Sargent  Mfg.  Co.,  Laud  y.  (Mich.) 872 

Sawyer  y.  Mould  (Iowa) 813 

Sawyer  y.  Oliyer  (Iowa) 950 

Sawyer,  Radii  y.  (Neb.) 980 

Sawyer  y.  Termohlen  (Iowa) 924 

Scahill  y.  Xtna  Indemnity  Co.  (Mich.)...     78 

Schaap,  Coad  y.  (Iowa) 900 

Schahlander,  Berryman  y.  (Neb.) 990 

Sohaible,   Rieger   y.   (Neb.) 860 

Schanno  y.  St  Paul  City  R.  Co.  (Minn.). .  783 
Scharman  y.  Bay  County  Bridge  Commis- 
sion  (Mich.) 1098 

Scherer  y.  Schlaberg  (N.  D.) 1000 

Schillinger    Bros.    &   Co.    y.    Bosch-Ryan 

Grain  Co.  (Iowa) 961 

Schlaberg,  Scherer  y.  (N.  D.) 1000 

Schmidt  y.  Chicago,  M.  ft  St  P.  R.  Co. 

(Minn.)    9 

Schnider  y.  Montross  (Mich.) 634 

School  Dist  No.  19,  Board  of  Education 

of  City  of  Yankton  y.  (S.  D.) 411 

School  Dist  of  City  of  South  Omaha,  Da- 

yis  y.   (Neb.) 88 

Schreib,  Anker  y.  (Mich.) 630 

Scott  y.  Naacke  (Iowa) 824 

Scriyner  y.  Anchor  File  Ins.  Co.  (Iowa)...  942 


Digitized  by  LjOOQIC 


OABBS  BBPOBTBIX 


ziU 


Pms« 

Btevaitj  Sat.  Bank  of  WeUmaa  t.  Smith  __ 

aowa)  825 

Smuity  State  Bank  of  WMhingtoii,  Neb. 

▼.  Watertoo  Lodso  Na  102,  A.  F.  *  A.  _ 

IL  (Neb.)   902 

Scele  T.  State  (NalO 688 

Seeler  t.  CSiicaga,  D.  ft  a  O.  T.  J.  B.  Oo.  _  ^ 

(Hidt.)    ..7??/. 214 

Scerinc  r.  Black  (Wis.) 106B 

8elli7.  Bobbins  t.  aowa) 9M 

Sdorer.  Bates  ft  (3o^  Finnes  r.  (Mlnn.)^  1T4 

Bennett  ▼.  UelvlUe  (Neb.) '..  851 

Shaw  ▼.  B4^rta  (Iowa) BS2 

BhedMii,   HoUand   t.    (Minn.) 1 

SbeetaTMota  t.  (Iowa) BOl 

SheOer  T.  Flelacher  (Mich.) 648 

Sheprd    Drainage    Dist.    t.    Bimerman 

(Wis.)    776 

Shepard  ▼.  Flatt  (Mich.) 639 

Sherman  t.  Sherman  (S.  D.) 4i» 

Shew  Fan  Qui,  Mar  ▼.  (Minn.) 821 

Shields.  Bowker  t.   (Wis.) 809 

SliowNi  T.  J.  L.  Owens  Cio.  (Mich.) 640 

8icDam«2  Sav.  Bank,  Lemon  t.  (Iowa)...  930 

Sikyta.  Benton  t.  (Neb.) 61 

Simms.  Ziehme  T.   (Minn.) 468 

Sfanon  y.  Simon's  Estate  (Midi.) 644 

Simon's  EMate.  Simon  ▼.   Qifich.) 644 

SincUlx;  St  JcAm  t.  (Minn.) 164 

Siooz  Cit7  Traction  Co.,  Bloom  t.  (Iowa)  831 
Sionx  Ga  ▼.  Woodbury  Coonty  (Iowa)...  040 

SJoU  T.  Hocenawi  (N.  D.) 1008 

Skntt  ▼.  Ionia  Ciicnit  Jadge  ^ich.) 364 

Stomun  V.  McLaren  (Minn.) 871 

Smith.  Birdsall  t.   (Mich.) 626 

Smith  T.  CameronJMicb.) 664 

Smith  T.  Carter  (Wis.) 1085 

Smith.  Collins  t.  (Iowa) 830 

Smith.  Gowan  ▼.  (Mich.) 286 

Smith  ▼.  Independent  School  Dist.  No.  12, 

St.   Loola  County  (Minn.) 178 

Smith.  Ranney  Befrigerator  Co.  r.  (Midi.)  01 
Smith,  Secnrity  Bar.  Bank  of  Wellman  T. 

Gowa)    826 

Rmith  T.  Tolan  (lOch.) 618 

Smith.  Takes   t.   (Mich.) 228 

Smith  Lamber  Co.,  Blanchard  r.  (Minn.).. 1184 

SnaTely-Ashton,  Peters  r.  (Iowa) 886 

Soath  Dakota  <3ent  B.  C!o.,  Wold  t.  (a 

D.)    888 

Soathem   T^sconsin    Power   Cok,    In   M 

(Wis.)    801 

Soathem   Wisconsin    Power    Co.,    In   re 

fWis.)   800 

Soathem    Wisconsin    B.    Cio.,    Vetter    t. 

(Wis.)    781 

Soathwiek  r.  Himmelman  (Minn.) 1016 

Sorereign  Camp  Woodmen  of  the  Worid, 

MUkr  T-  CWIb.) 1126 

SpakUng  r.  Douglas  Ck>nnty  (Neb.) 880 

Spear  t.  Hanson  (Mich.) 110 

Speck  T.  Northern  Pac.  B.  Co.,  two  cases 

(Minn.) 407 

Speer  t.  Naldrett  nifich.) 224 

Spreng  t.  Jnni  (Minn.) lOlS 

Stark  ▼.  Duhrlng  (Wis.) 1131 

Starkweather     t.     Thorlngton's     Estate 

(Mich.)    :. 116 

State  ▼.  Adams  Bxp.  Co.  (Neb.) 691 

State  T.  Bailey  (Iowa) 028 

State  T.  Barnes  (Minn.) «..      4 

State  y.  Barnes  (Minn.) 11 

State  T.  Barnes  (Minn.) 12 

Stete  T.  Barton  (Neb.) 64 

State  T.  Berman  (Minn.) 161 

State.  Boche   r.   (Neb.) 72 

State  T.  Brown  (Iowa) 683 

State  T.  CHaik  (Iowa) 057 

State  T.  Cosgraye  (Neb.*) 885 

State  T.  (Took  (Iowa) 583 

State.  Cook   T._(Neb.) 700 

State  T.  Dahl  (Wis.) 748 

State  ▼.  District  Conrt  of  Fourth  Jadidal 

Dist  (Minn.) 314 

State,  Donoyan  t.  (Wis.) 1022 

State  T.  Dnft  (Iowa) 820 


Stater.  Fitzgerald  (Iowa) 028 

State  y.  Floyd  (Iowa) 688 

State  y.  Foumier  (MinnO 829 

State  y.  Hayes  (S.  D^T: 662 

State  y.  Hogan  (Iowa) 818 

State  y.  Hunt  (Iowa) 902 

State  y.  Iverson  (Minn.) 166 

Stete  y.  Jones  (Iowa) 241 

State,  Jones  y.  (Neb.) 852 

State  y.  Junkin  (Neb.). 473 

State  y.  Kammel  (S.  D.) 420 

State  y.  Lally  (Minn.) 18 

State  y.  Lane  (Iowa) 688 

State,  Uniger    t.    (Neb.) 705 

State,  McCabe  y.  (Neb.) 888 

State  y.  McCallnm  (S.  D.) 686 

State  T.  MeOuire  (Minn.) 1120 

State  y.  Mcintosh  (Minni) 462 

State  T.  McPnrsley  (Iowa) 980 

State  y.  Bfadiaon  (8.  D.) 647 

State  y.  Magill  (N.  D.) 880 

State  y.  Nofiin  (Minn.) 255 

State  T.  Peterson  (&  D.) 667 

State,  Pnmphrey  y.  (Neb.) 1» 

State  y.  Bose  (WU) 761 

State,  Bnth   y.    O^is.) 783 

State,  Seele  y.  (Neb.) 686 

State,  Steyens  y.  (Neb.) 6S 

State,  Thompson  y.  (Neb.) 086 

State  y.  Tiemagel  (Iowa) 030 

Stater.  Waggenson  (WisJ 726 

State  r.  WeUs,  Fargo  ft  Oa.  (Neb.) 607 

State  y.  White  (Minn.> 448 

State  y.  Whittier  (Minn.) 81» 

State  r.  Wilicnto  fWis.) 1048 

Stater.  Winchester  (N.  D.) 1111 

Stater.  Wodlett  (Iowa) 688 

State  r.  Workman  (Iowa) 683 

State  Bank  of  Bamnm  t.  Goodland  (Minn.)  468 
State   Bank  of  Beeseville  y.   Eeinbecger 

(WisJ    ...1182 

State  Finance  Co^  Hodgson  r.  (N.  D.). ..  836 
State  Veterinary  Board,  Folsom  r.  (Mich.)  62& 

Steele  r.  Culrer  (Mich.) 95 

Steger  y.   Immen  (Mich.) 104 

Stemr.  Fargo  (N.  D.j 403 

Stems,  Daris  y.  (Neb.) 672 

Stevens  y.  State  (Neb.) 68 

Sterenson  v.  Mould  (Iowa) 921 

Stewart  y.  Hall  Qowa) OOf^ 

Stickney    Co~    Bxeelsior    Supply    Co.    y. 

(Minn.)    \?. 870 

Stine  y.  Foster  (S.  D.) 598 

Stockdale's  Estate,  City  of  Flint  r.  (Mich.)    270- 

Stone  T.  Nebraska  City  (Neb.) 63 

Strabbing,  Reimink  y.  (Mich.) 18a 

Strahon,  Hollister  v.  (S.  D.) 604 

Strauch  y.  Flynn  (Minn.) 820 

Strohschein  y.  Kranich  (Mich.) 178 

Stuart  Wyoming  ^.  y.  (Midi.) 214 

Stmnm  v.  Western  Union  Tel.  Co.  (Wis.).  .iaS2 

Stuverad,  Maag  y.  (S.  D.) 850' 

Sucbocki  y.  Calumet  Ins.  Co.  (Mich.). ....  216 
Sunderland  Boofing  ft  Supply  Co.  v.  united 

States  Fidelity  ft  Ousranty  Co.  (Neb.). .     2S 
Supreme  Court,  I.  O.  F.,  (3onley  y.  (Mich.)  66r 

Sutherland,  Jones  y.  (Iowa) OOl 

Swenson  y.  Wells  (Wis.) 724 

Swift  ft  Ck>.  r.  Bedhead  (Iowa) 140- 

Swiney  r.  American  Bxp.  (X  (Iowa) 057 

Tamara^  Min.  Co.,  KarDpinen  r.  (Midi.)  43& 
Taraoeki  r.  Chidahy  Packing  Co.  (Neb.) . . .  671 
Taylor  t.  Illinois  Commercial  Men's  Aas'n 

of  Chicago,   111.   (Neb.) 41 

Tayloi^Baldwln  Co.  r.  Northwestern  Fire  ft 

Marine  Ins.  Co.  (N.  D.) 896 

Taylor  (bounty,  Qreen  way  y.  (Iowa) 043- 

T.  D.  Kellogg  Lumber  &  Mfg.  Co.  r.  Web- 
ster Mfg.  Co.  (Wis.) 787 

Tecumseb,  Wightman  y.  (Mich.) 122 

Telnlah  Paper  Co.,  Green  Bay  ft  Missis- 
sippi Canal  Co.  y.  (Wis.) 1062 

Termohlen,   Sawyer  y.  (Iowa) 024 

Terry,  Johnson  y.  (Neb.) 084 

Thayer,  Bemstien  r.  (BIich4...^« 866- 


Digitized  by 


L-oogle 


ZlT 


122  NORTHWESTERN  REPORTER. 


Pas* 
Tharer  Lamber  Co.  y.  HnskeKon  (Mich.) . .  189 
TheiB,  Woodworth  Elevator  Co.  r.  (Minn.)  810 
Thief  RiTer  Falls,  Red  Lake  Falls  MUl. 

Co.  y.  (Minn.) 872 

Thomas  y.  Wisconsin  Cent  R.  C«.  (Minn.)  456 
Thompson's  Etetate,  Forsyth e  y.  (Mich.)...  219 

Thompson  y.  State  (Neb.) 986 

Thorington's     Elstate,      Starkweather     y. 

(Mich.)    llfl 

Tiedgen,  Settle  y.  (Neb.) 890 

Tinnev,  Wallace  y.  (Iowa) 936 

Tlsdale  y.   Ennis  (Iowa) 959 

Title  Onaranty  &  Surety  Co.  of  Scianton, 

Pa.,  People  v.  (Mich.) 855 

Titns,  Marin  y.  (S.  D.) 696 

TJemagel,  SUte  y.  aowa) 930 

Tolau,  Smith  y.  (Mich.) 618 

Toledo  Portland  Cement  Co.,  Torrey  t. 

(Mich.)    614 

Torrey    y.   Toledo   Portland    Cement   Co. 

(Mich.) 614 

Treat  v.  Detroit  United  Ry.  (Mich.) 93 

Turja,  People  y.  (Mich.) 177 

Tnmer  County,  City  of  Centeryille  y.  (S. 

D.) 850 

Tyler,  Bliss  v.  (Mich.) 643 

TTllman  t.  Sandell  (Mich.) 617 

tJllman  y.  Sandell  (Mich.) 1076 

Umsted  y.  Colgate  Farmers'  Eleyator  Co. 

„(N.  DO 890 

Union    Cent.    life    Ins.    Co.,    Richey    y. 

„(Wi8.) 1030 

Union  Pac.  R.  Co.  y.  Colfax  County  (Neb.)  29 
Union   School   Dist.   of  City   of   Stanton, 

Germain    v.    (Mich.) 524 

Union   Trust   Co.   y.   Common  Council  of 

City  of  Detroit  (Mich.) 621 

Union    Trust    Co.,    First    Nat    Bank    y. 

(Mich.)    647 

United   States   Fidelity   &  Guaranty   Co.. 

People  y.  (Mich.) 858 

United   States   Fidelity  &  Guaranty  Co., 

Sunderland    Roofing    &    Supply    Co.    y. 

(Neb.)    25 

United  SUtes  Sugar  Co.,  Olson  y.  (Wis.)  776 

Van  Alstyne,  People  y.  (Mich.) 1% 

Vanatta,  Monaghan  y.  aowa) 610 

Van  Beek,  Boschker  y.  (N.  D.) 838 

Vandeveer,  Hig^s  y.  (Neb.) 843 

Van  De  VorateTwinterbefg  y.  (S.  V.) 866 

Vedder,  Loree  y.  (Mich.) 623 

Vermont  Farm  Machinery  Co.  v.  De  Sota 

Co-Operative  Creamery  Co.  (Iowa) 930 

Vetter  y.  Southern  Wisconsin  R.  Co.  (Wis.)  781 
Village  of  Excelsior  y.  Minneapolis  &  St 

P.  S.  R.  Co.  (Minn.) 480 

Village  of  lAke  Odessa  y.  Randall  O^ich.)  517 

Vinkemulder,  Lawrence  y.  (Mich.) 8^ 

Vrana  y.  Vrana  (Neb.) 678 

Wabash  R.  Co.,  Harrington  y.  (Minn.)...  14 
Wabaska    Electric    Co.    y.    Bine    Springs 

(Neb.)    ....?.     21 

Wachenheimer,  Pleins  y.  (Minn.) 166 

Waggenson,  State  y.  (Wis.) 726 

Wagner,  Doyle  v.  (Minn.) 816 

WaUace  y.  Tlnney  (Iowa) 936 

Wapello  Coal  Co..  (Griffith  y.  (Iowa) 581 

Wapello  State  Say.  Bank  y.  Colton  (Iowa)  149 

Ward  y.  Cook  (Mich.) 785 

Waterloo  Lodge,  No.  102.  A.  F.  &  A.  M., 

Security  State  Bank  of  Washington,  Neb. 

(Neb.)   992 


PW* 

Watson  T.  OUik  (Iowa) 91S 

Watters  y.  Danoey  (S.  D.) 430 

Wayne  County,  Breasler  y.  (Neb.) 23 

Weber  y.  Detroit  (Mich.) 670 

Weber,  Oodkin  y.  ^ich.) 1083 

Webster  Mfg.  Co»T.  D.  Kellogg  Lcmber 

&  Mfg.  Co.  y.  (Wis.) 787 

Weigand,  Wirth  y.  (Neb.) 714 

Weilnau,  Pere  Marquette  R.  Co.  v.  (Mlcb.)  803 

Wellman,  Dorsey  y.  (Nebb) 989 

Wells,  Fargo  &  Ca,  State  y.  (Neb.) 697 

Wells,    Swenson   y.   (Wis.) 724 

Wendeln.  Hespen  y.  (Neb.) 852 

Westby,  Bekkedahl  y.  (Wis.) 727 

Westcott  y.  Meeker  (Iowa) 964 

Western  Mfg.  Co.  y.  Peabody  (N.  D.) 332 

Western  Union  Tel.  Co.,  Markley  y.  (Iowa)  136 
Western  Union  Tel.  Co.,  Stummy.  (Wis.)..  1032 

WesUake  y.  Murphy  (Neb.) 684 

White,  State  y..nUnn.) 448 

White  y.  White  (Wis.) 1051 

Whiting.  Cook  y.  (Iowa) 835 

Whitnall,  Appeal  of  (WM 809 

Whittaker  y.  Deadwood  (8.  D.) 690 

Whlttier,  State  y.  (Minn.) 819 

Wickhem  y.  Alexandria  (S.  D.) 697 

Wightman  y.  Tecnmseh  (Mich.) 122 

Wilber  y.  Reed  (Neb.) 63 

Wilder,  Barendsen  y.  (Mich.) 855 

Wilkinson  y.  Lord  (Neb.) 609 

Willard  y.  Iowa  Cent  R.  Co.  (Minn.)....  169 

Willcuts,  State  y.  (Wis.) 1048 

Williams  Bros.  Lumber  Co.  y.  Kelly  (S.  D.)  646 

Williams  y.  Monks  (Minn.) 6 

Wilson  y.  Anchor  Fire  Ins.  Co.  (Iowa)....  157 

Wilson  y.  Cleveland  (Mich.) 284 

Wilson,  People  y.  (Mich.) 297 

Wilson  y.  Wilson  (Neb.) 856 

Winchester,  State  y.  (N.  D.) 1111 

Wing,  Doherty  y.  (Wis.) 716 

Winkler   y.   Hastings  (Neb.) 858 

Winslow's  Will,  In  re  Qowa) 971 

Winterberg  y.  Van  De  Vorste  (N.  D.) 866 

Winterset,  Cashing  y.  (Iowa) 915 

Wirth  y.  Weigand  (Neb.) 714 

Wiscondn  Cent   R.  Co.,  Hendridcson   y. 

(Wis.)    758 

Wisconsin  Cent  R.  Co.,  Thomas  y.  (Minn.)  456 
Wisecarver  &  Reynard  y.  Chicago,  R.  I.  & 

P.  R.  Co.  (Iowa) 909 

Witwer,  Buckhout  y.  (Mich.) 184 

Wold  y.  South  Dakota  Cent  R.  Co.  (S.  D.)  588 
Wolf  y.  Green  Bay,  O.,  M.  &  8.  W.  B.  Co. 

(Wis.)    743 

Woodbury,  Bannigan  y.   (Mich.) 531 

Woodbury  County,  Sioux  City  v.  (Iowa) . . .  940 
Woodmen  of  the  World,  Mullen  y.  (Iowa)  908 
Woodworth  Elevator  Co.  v.  Tbeis  (Minn.). .  810 

Woolett  SUte  V.  (Iowa) 683 

Work  V.  Braun  (S.  D.) 608 

Workman,  State  v.  (Iowa) 583 

Wymanv.  Pike  (Minn.) 310 

Wyoming  Tp.  v.  Stuart  (Mich.) 214 

Tankton  Land  &  Investment  Co.,  Farrar 

v.  (S.  D.) 685 

Yerkes  V.  Smith  (Mich.) 228 

Young  v.  Kinney  (Neb.) 679 

Young  V.  Metcalf  Land  Co.  (N.  D.) 1101 

Yonngquist  v.  C.  H.  Blomstrom  Motor  Co. 
(Mich.)    1087 

Zellmerv.  Patterson  (N.  D.) 381 

Ziehme  y.  Simms  (Minn.) 4,^8 

Zimmer  v.  Saier  (Mich.) 663 

Zuelsdorf,  LeUtikow  T.  (N.  D.) 8M 


Digitized  by 


Google 


REHEARINGS  DENIED. 


[Caaea  in  which  rehearingB  liave  been  denied,  without  the  lendition  of  a  written  opinion,  rinc* 
the  publication  of  the  original  opinions  in  previous  TOlumea  of  this  Reporter.] 


Aaltman  Eangine  Co.  t.  Chicago,  B.  I.  &  P.  R. 
Co.  aowa)  121  N.  W.  22. 

Budon  T.  O^rioi  (Wis.)  120  N.  W.  827. 
Blackman's  Eatete,  In  re  (Iowa)  120  N.  W.  664. 
Blanke  t.  Village  of  Genoa  Junction  (Wis.)  121 

Brigham  t.  McAllister  (Iowa)  120  N.  W.  1054. 
Brown  t.  West  Riverside  Coal  O.  (Iowa)  120 

N.  W.  732. 
Banting  ▼.  Powers  (Iowa)  120  N.  W.  679. 
ZaA  T.  Reese  (Iowa)  121  N.  W.  101& 
Burrow  t.  Hicks  (Iowa)  120  N.  W.  727. 

Caldwell  Co.  t.  Steckel  &  Son  Oowa)  121  N. 

W.  87a 
Cedar  Rapids  Light  Co.  v.  C^ar  Rapids  (Iowa) 

120  N.  W.  966. 

(niarleson  v.  Russell  (Iowa)  121  N.  W.  631. 
Chicago  A.  &  N.  R.  (Jo.  v.  Whitney  (Iowa)  121 

N.  W.  1043. 
Cinkovitch  ▼.  Thistle  Coal  <3o.  (Iowa)  121  N. 

W.  1(^6. 
Oapp  T.  Adams  (Iowa)  121  N.  W.  44. 
Cooper  T.  Scott  Co.  (Iowa)  120  N.  W.  631. 

Davis  T.  Carter  (Iowa)  120  N.  W.  1030. 
Dohertv  v.  Des  Moines  City  Ry.  (Iowa)  121 

X.  W.  680. 
Dnbaque  County  T.  Fitspatrick  (Iowa)  121  N. 

W.  15. 
Dumbarton  Realty  Co.  t.  Brickson  (Iowa)  120 

N.   W.   1025. 

Fitter  t.  Iowa  TeL  Co.  (Iowa)  121  N.  W.  4& 
Fituxrald  t.  Town  of  Sharon  (Iowa)  121  N. 

Frits  V.  Frits  (Iowa)  118  K.  W.  769. 
Fiye  ▼.  Oallioo  (Iowa)  121  N.  W.  663. 

Graham  t.  DiUon  (Iowa)  121  N.  W.  47. 
Gray  v.  Carroll  aowa)  120  N.  W.  1035. 
Gray  v.  Chicago,  R.  L  &  P.  R.  Co.  (Iowa)  121 
N.  W.  1097. 

Hemmer  v.  Donlavy  (Iowa)  121  N.  W.  1024. 
Henderson  v.  Standard  Fire  Ins.  Co.  (Iowa) 

121  N.  W.  714. 

Hensley  v.  Davidson  Bros.  (Iowa)  120  N.  W. 

95. 
Hnffman  t.  Mary  Mnt  Tel.  Co.  (Iowa)  121 

N.  W.  1033. 

Iowa  Cent.  R.  Co.  t.  Chicago  O.  W.  R.  O). 
aowa)  119  N.  W.  261. 

Jacobaon  ▼.  United  States  Gypsum  Ck>.  (Iowa) 
120  N.  W.  051.  • 


Kelty  y.  McPeake  aowa)  121  N.  W.  629. 
Ketterman  t.  City  of  Ida  Grove  (Iowa)  120  N. 

W.    641. 
Kvamme  v.  Barthell  aowa)  118  N.  W.  766. 

Lacey  t.  City  of  Oskaloosa  aowa)  121  N.  W. 

lind  T.  Uniform  Stave  ft  Package  Co.  (Wis.) 

120  N.  W.  839. 

McClenahan  t.  Town  of  Jessup  (Iowa)  120  N. 

W.  74. 
McDivitt  V.  Des  Moines  City  R.  Co.  aowa) 

U8  N.  W.  459. 
Mester  ▼.  Zaiser  (Iowa)  120  N.  W.  466. 
Miller  v.  White  Bronze  Monument  Co.  (Iowa) 

118  N.  W.  618. 
Morrison  v.  Dwyer  aowa)  121  N.  W.  1064. 
Mueller  Lumber  Co.  v.  McCaffrey  (Iowa)  118 

N.  W.  903. 

Ochampaugh  v.  Powers  aowa)  120  N.  W.  680. 

Porter  v.  Farmers'  &  Merchants'  Sav.  Bank 
(Iowa)  120  N.  W.  633. 

Quarton  v.  American  Law  Book  (3o.  aowa)  121 
N.  W.  1009. 

Rasch  V.  Jensen  (Iowa)  120  N.  W.  662. 
Ridley  ▼■  Farmers'  &  Merchants'  Bank  aowa) 

121  N.  W.  2, 

Schroeder  v.  State  Bank  of  Blalrsburg  aowa) 
121  ,N.  W.  606. 

Stat©  T.  Beck  (Wis.)  119  N.  W.  30O. 

State  V.  Blodgett  (Iowa)  121  N.  W.  68S. 

State  V.  Carter  (Iowa)  121  N.  W.  694. 

State  V,  Carter  (Iowa)  121  N.  W.  801. 

State  V.  Harding  aowa)  120  N.  W.  47. 

State  ex  rel.  Great  Northern  R.  Co.  v.  Rail- 
road Com.  of  Wis.  (Wis.)  121  N.  W.  932. 

State  ex  reL  Lake  Superior  Terminal  &  Trans- 
fer Co.  V.  Railroad  Ctom.  of  Wis.  (Wis.)  121 
N    W   932. 

State  ex  rel!  Northern  Pac.  R.  Co.  v.  Rail- 
road Com.  of  Wis.  (Wis.)  121  N.  W.  919. 

Steele  v.  Andrews  &  Son  aowa)  121  N.  W.  17. 

Tiemey  t.  Ledden  aowa)  121  N.  W.  1050. 
Tilton  V.  Gates  (Wis.)  121  N.  W.  331. 
TutUe  V.  Bisbee  (Iowa)  120  N.  W.  699. 

Wagner  v.  Valley  Nat  Bank  aowa)  118  N. 

W.623. 
Weldin  v.  Cnrfman  aowa)  118  N.  W.  464. 
White  V.  Internatioual  Text  Book  Co.  (Iowa) 

121  N.  W.  not. 
Wilsou  V.  Chicago,  R.  I.  &  P.  R.  Co.  (Iowa)  121 

N.  W.  1102. 


See  End  of  Index  for  Tables  of  Northwestern  Cases  in  State  Reports. 
122  N.W.  (xv)t 


Digitized  by 


Google 


Digitized  by  LjOOQIC 


THE 


NORTHWESTERN  REPORTER. 

VOLUME  122. 


HOU/AND  T.  SHEBHAN  et  al. 
(Sapreme  Coart  of  Miniiesota.     Jal7  9,  1909.) 

t  COIITBACTS  (S   129»)— PWBLIO  POLICY— PEB- 
VEBTIKO    JCBTIGB. 

A  contract  between  a  layman  and  a  lawyer, 
by  which  the  former  undertakes  and  agrees,  In 
consideration  of  a  division  of  the  fees  received 
by  the  latter,  to  bunt  op  and  bring  to  the  attor- 
ney persons  having  causes  of  action  against 
nilroad  companies  for  personal  injuries,  is  con- 
tiary  to  public  policy  and,  void. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent.  Dig.  {  616;    Dec.  Dig.  I  129.*] 

Z  CoKTRACTS  (S  138*)— Pabtiks  IK  Pabi  De- 
licto. 

In  such  contracts  the  parties  are  in  pari 

delicto. 
[Ed.  Note^— For   other   cases,   see   Contracts, 

Cent.  Die  f  684;    Dec  Dig.  i  138.*] 
(SyUal>as  by  the  Court.) 

8.  CoirRACTS  (i  108*)— "CONTBAOTS  MaLA  IH 

Se." 

"Contracts  mala  in  se"  include  those  of  an 
immoral  nature,  iniquitous  in  themselves,  and 
those  opposed  to  sound  public  policy. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent.  Dig.  t  498;    Dec.  Dig.  i  10&*] 

4.  CoirrBACTs  (I  108*)— "Public  Policy." 

The  term  "public  policy,"  as  applied  to 
contracte,  covers  a  wide  range,  and  embraces 
til  acta  or  contracts  which  tend  clearly  to  in- 
jure Uie  public  health,  the  public  morals,  or 
confidence  in  the  purity  of  the  administration 
of  the  law,  or  to  undermine  that  sense  of  se- 
curity for  indiyidual  rights,  whether  of  personal 
liberty  or  private  property,  which  every  citizen 
has  the  right  to  feel. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent.  Dig.  t  498;    Dec.  Dig.  i  108.* 

For  other  definitions,  see  Words  and  Phrases, 
VOL  6,  pp.  5813,  5814;    vol.  8,  p.  7773.] 

Appeal  from  District  Court,  Ramsey  Coun- 
ty; Olin  B.  licwls.  Judge. 

Action  by  Henry  Holland  against  T.  D. 
Sbeeban  and  others.  Judgment  for  defend- 
ants. From  an  order  denying  a  new  trial, 
plaintlfl  appeals.     Affirmed. 

Edward  O.  Rogers  and  Geo.  Nordlln,  for 
appellant    Thos.  C.  Daggett,  for  respondent. 

BROWN,  J.  On  the  80th  of  November, 
1906,  plaintiff  and  defendant  entered  Into 
the  following  contract  in  writing,  namely: 

"mis  agreement,  made  and  entered  into 


this  30th  day  of  November,  1906,  by  and  be- 
tween T.  D.  Sbeehan  and  Henry  Holland, 
witnesseth:  It  Is  hereby  agreed  by  and  be- 
tween each  of  the  parties  above  named,  re- 
spectively, that  In  reference  to  all  claims 
and  cases  handled  by  suit  or  settlement  by 
the  said  T.  D.  Sheehan  or  Henry  Holland, 
from  the  date  of  this  instrument,  that  the 
proceeds  of  all  litigation,  either  by  settle- 
ment or  suit,  shall  be  divided  equally,  one- 
half,  between  the  said  parties  to  this  said 
agreement  It  is  also  further  agreed  all 
expenses,  including  said  Holland's  expenses 
on  the  road,  and  all  the  expenses  that  may 
be  Incurred  by  office,  and  legitimate  ex- 
penses necessary  to  carrying  on  the  said 
business,  shall  be  shared  equally  by  and  be- 
tween the  said  parties,  and  that  the  ex- 
penses shall  first  be  deducted  from  all  the 
settlements  made  in  the  carrying  on  of  said 
business. 

"[Signed]  T.  D.  Sheehan. 

"Henry  Holland." 

The  agreement,  as  Illuminated  by  the  evi- 
dence, discloses  the  following  facte:  Plain- 
tiff is  a  layman,  following,  so  far  as  involv- 
ed in  this  case,  the  occupation  of  discovering 
persons  who  bad  received  personal  Injury  at 
the  hands  of  railroad  companies  and  others, 
and  inducing  them  to  intrust  their  claims 
for  compensation  to  him  and  his  associate, 
Sheehan,  for  suit  adjustment,  and  settle- 
ment upon  the  basis  of  a  division  of  the 
amounts  received  from  the  railroad  or  per- 
son liable.  Sheehan  is  an  attorney  and 
counselor  at  law,  practicing  in  the  city  of 
St  Paul,  and  the  terms  of  the  contract  re- 
quired of  him  the  prosecution  of  all  claims 
brought  in  by  plaintiff  upon  the  agreement 
that  each  should  share  equally  In  the  prof- 
its resulting  from  litigated  or  settled  cases. 
When  clients  were  brought  In,  Sbeehan 
made  an  independent  contract  with  them, 
specifying  the  terms  of  his  employment  and 
the  proportion  of  the  recovery  to  be  allotted 
to  him  for  his  services,  usually  from  one- 
fourth  to  one-half.  Plaintiff,  by  the  agree- 
ment, was  to  assist  In  the  preparation  of 
the  cases  for  trial,  in  looking  up  evidence 


r  othar  eases  see  same  toplo  and  sectlos  NUMBER  In  Dec.  A  Am.  Digs.  1W>7  to  data,  &  Reporter  Indexes 
122N.W^1 


Digitized  by 


Google 


122  NORTHWESTERN  REPORTER. 


(Minn. 


and  other  necessary  details,  thongh,  not  be- 
ing an  admitted  attorney,  he  was  not  re- 
quired or  expected  to  take  part  In  the  court 
proceedings.  A  large  number  of  persons 
with  grievances  against  railroad  companies 
were  discovered  by  plaintiff,  and,  acting  un- 
der the  agreement,  be  conducted  them  to  the 
office  of  defendant,  who  thereafter  managed 
their  cases  with  success,  collecting  and  re- 
ceiving large  sums  of  money  as  comt$ensa- 
tlon  for  their  injuries,  dividing  with  plain- 
tiff the  compensation  received  for  bis  serv- 
ices. Finally,  however,  defendant  repudiat- 
ed the  contract  and  declined  further  to  be 
bound  by  it,  and  plaintiff  brought  this  ac- 
tion for  an  accounting  respecting  moneys 
received  by  defendant  prior  to  the  repudia- 
tion. The  trial  court  found  the  facts  sub- 
stantially as  here  outlined,  held  that  the 
contract  was  illegal  and  void,  and  directed 
judgment  for  defendant.  Plaintiff  appealed 
from  an  order  denying  a  new  trial. 

The  only  question  presented  Is  whether 
the  court  below  rightly  held  the  contract 
void  and  unenforceable.  The  findings  of  the 
trial  court  are  all  sustained  by  the  evidence. 
Illegality  vitiates  contracts  of  every  descrip- 
tion, and  the  courts  decline  to  enforce  them. 
Illegality,  within  the  rule.  Includes  agree- 
ments In  violation  of  some  prohibitive  stat- 
ute, in  violation  of  the  express  rules  of  the 
common  law,  or  contrary  to  public  policy. 
The  second  and  third  are  so  closely  related 
as  to  be  In  particular  Instances  indistln- 
;piishable;  for  the  common  law,  and  public 
policy,  other  than  that  evidenced  by  statu- 
tory enactments,  are  often  inseparably  blend- 
ed together.  Parson  v.  Trask,  66  Am.  Dec. 
506,  note.  Formerly  a  distinction  was  made 
In  determining  the  question  whether  con- 
tracts were  illegal  between  acts  mala  pro- 
bibita  and  those  mala  in  se;  but  the  old  rule 
no  longer  obtains.  Either,  under  all  modem 
authorities,  nullifies  the  contract.  Oibbs  r. 
Consolidated  Gas  Co.,  130  IT.  S.  396,  9  Sup. 
Ct  653, 32  li.  Ed.  979;  Swanger  v.  May  berry, 
59  Cal.  91.  Contracts  mala  in  se  include  all 
those  of  an  immoral  nature,  iniquities  in 
themselves,  and  those  opposed  to  sound  pub- 
lic policy;  and,  where  both  parties  are  in 
pari  delicto,  neither  as  a  general  rule  will 
be  accorded  relief  by  a  court  of  Justice.  The 
exceptions  to  the  rule  are  well  defined.  9 
Cyc.  551,  and  cases.  The  term  "public  pol- 
icy," as  applied  to  this  subject,  is  compre- 
hensive, and  covers  a  wide  range,  whether 
evidenced  by  the  trend  of  legislation,  Judi- 
cial decisions,  or  the  principles  of  the  com- 
mon law.  It  embraces  all  acts  or  contracts 
which  "tend  clearly  to  injure  the  public 
health,  the  public  morals,  confidence  in  the 
purity  of  the  administration  of  the  law, 
or  to  undermine  that  sense  of  security  for 
individual  rights,  whether  of  personal  lib- 
erty or  private  property,  which  every  citi- 
zen has  the  right  to  feel."  Goodyear  v. 
Brown,  155  Pa.  514,  26  Atl.  665,  20  L.  R.  A. 
S3S,  35  Am.  St.  Rep.  903. 


The  contract  In  the  case  at  bar  is  one  be- 
tween an  attorney  and  a  layman,  and  with- 
out stopping  to  consider  whether  expressly 
prohibited  by  statute,  either  as  to  the  attor- 
ney or  the  layman,  we  take  up  the  question 
whether  it  is  void  as  against  public  policy. 
That  it  is  we  ento-taln  no  serious  doubt. 
That  conduct  by  a  layman  in  stirring  up  lit- 
igation, searching  out  persons  who  have  re- 
ceived some  injury  to  their  person  or  proper- 
ty, and  inducing  them  to  Intrust  their  cause 
to  the  solicitor,  or  an  attorney  of  his  selec- 
tion, on  a  contingent  fee  basis,  tends  to  dis- 
turb confidence  in  the  administration  of  Jus- 
tice and  to  undermine  that  sense  of  security 
for  Individual  rights  which  every  citizen  has 
the  right  to  feel,  and  is  as  obnoxious  to 
sound  public  sentiment  as  when  champerty 
was  a  crime  at  common  law,  is  too  obvious 
to  require  extended  discussion.  As  remark- 
ed by  Judge  Mitchell  in  Gammons  v.  John- 
son, 76  Minn.  81,  78  N.  W.  1035:  "The  gen- 
eral purpose  of  the  law  against  champerty 
and  maintenance  and  barratry  was  to  pre- 
vent officious  Intermeddlers  from  stirring  up 
strife  and  contention  by  vexatious  or  specu- 
lative litigation,  which  would  disturb  the 
peace  of  society,  lead  to  corrupt  practices, 
and  prevent  the  remedial  process  of  the 
law.  All  contracts  or  practices  which  nec- 
essarily and  manifestly  tend  to  produce  these 
results  ought  still  to  be  held  void  on  the 
grounds  of  public  policy."  It  becomes  all 
the  more  odious  when  participated  in  by  a 
lawyer  and  a  layman;  the  latter  agreeing- 
to  "find  the  cases"  and  the  former  to  con- 
duct them  through  the  courts.  In  such  cas- 
es both  are  equally  guilty,  and  neither 
should  be  permitted,  in  a  court  of  Justice, 
successfully  to  assert  alleged  rights  accru- 
ing from  the  Iniquitous  agreement.  Huber 
V.  Johnson,  68  Minn.  76,  70  N.  W.  806,  64 
Am.  St.  Rep.  456;  Gammonp  v.  Johnson,  6& 
Minn.  488,  72  N.  "W.  5G3;  Gammons  v.  Gul- 
branson,  78  Minn.  21,  80  N.  W.  779. 

The  precise  situation  has  been  presented 
to  other  courts  of  the  country  with  different 
results;  but  the  weight  of  reason  and  prin- 
ciple sustains  our  view.  In  Megulre  v.  Cor- 
wlne,  101  U.  S.  108.  25  L.  Ed.  899,  It  appear- 
ed that  defendant,  in  consideratiou  that 
plaintiff  would  procure  his  appointment  to 
prosecute  certain  cases,  and  in  consideration, 
also,  of  plaintiff's  assistance  In  the  litiga- 
tion, agreed  to  pay  plaintiff  one-half  of  what 
he  should  receive  for  services  rendered  in 
the  litigation.  The  court  held  the  contract 
contrary  to  public  policy  and  void,  and 
though  plaintiff  fully  performed  his  part  of 
the  agreement,  and  defendant  received  some- 
thing like  $30,000  for  his  services,  refused 
to  require  him  to  account.  The  case  is  di- 
rectly in  point.  In  Langdon  v.  Conlin,  67 
Neb.  243,  93  N.  W.  389,  60  L.  R.  A.  429,  108 
Am.  St  Rep.  643,  2  Am.  &  Eog.  Ann.  Cas. 
834,  the  Nebraska  Supreme  Court  held  that 
a  contract  between  an  attorney  and  a  lay- 
man by  which  the  latter  agreed  to  procure 


Digitized  by  VjOOQ  l€ 


innn.) 


.HOLLAND  T.  SHEEHAN. 


3 


the  employment  of  the  former  by  third  per- 
sons for  the  prosecution  of  suits  In  the 
courts,  and  also  to  assist  In  looking  up  the 
necessary  evidence.  In  consideration  of  a 
share  in  the  attorney's  fees,  was  against 
public  policy  and  void.  In  the  course  of  the 
opinion  the  court  referred  to  the  state  stat- 
utes, and  therefrom  declared  that  It  was  the 
plain  policy  of  the  Legislature  to  exclude 
all  persons  not  licensed  attorneys  from  di- 
rectly or  Indirectly  practicing  In  any  of  the 
courts  of  the  state,  and  that  for  one  not  an 
attorney  to  attempt  to  break  Into  the  prac- 
tice by  a  silent  partnership  with  an  attor- 
ney was  a  Ylcriatlon  of  the  policy  of  the  law. 
The  same  may  be  said  of  our  own  statutes 
on  the  subject  of  admission  to  the  bar.  Sec- 
tions 2279,  2280,  Rer.  Laws  1905.  A  simi- 
lar conclusion  was  announced  by  the  Cali- 
fornia Supreme  Court  in  Alpers  t.  Hunt, 
86  Cal.  78.  24  Pac.  846,  9  L.  R.  A.  483,  21 
Am.  St  Rep.  17.  The  Supreme  Court  of 
New  Tork  in  numerous  cases  has  so  de- 
clared the  law  of  that  state,  though  the 
Court  of  Appeals  took  the  opposite  view  In 
Irwin  T.  Curie,  171  N.  Y.  409,  64  N.  B.  161, 
58  L.  R.  A.  830.  For  Supreme  Court  cita- 
tions see  note  to  Langdon  ▼.  Conlin,  2  Am. 
&  Eng.  Ann.  Cas.  836.  The  Court  of  Ap- 
peals held  such  a  contract  valid,  and  placed 
the  ruling  upon  the  ground  that  the  parties 
were  not  In  pari  delicto;  that,  though  a  vio- 
lation of  the  law  on  the  part  of  the  attorney, 
as  to  the  layman  the  contract  was  valid  and 
enforceable.  The  court,  it  seems  to  us,  over- 
looked the  important  fact  that  the  layman 
was  bound  to  know  the  statutory  prohibition 
against  tbe  attorney  and  those  restricting 
the  right  to  practice  law  to  those  duly  li- 
censed to  do  so.  Guilty  intent  is  not  neces- 
sary, in  order  that  both  parties  be  in  pari 
delicto.  9  Cyc.  569.  And  It  seems  clear 
that,  where  two  persons  conspire  together 
to  do  an  act  forbidden  by  law  to  one  of 
them,  the  doing  of  it  by  Joint  ag:reement  la 
a  violation  of  the  law  as  to  both.  The  Colo- 
rado and  Illinois  courts  seem  also  to  have 
adoiAed  the  rule  laid  down  by  the  New  Tork 
Court  of  Appeals  (Dunne  v.  Herrick,  37  111. 
App.  180;  Vocke  v.  Peters,  68  III.  App.  338; 
Casserleigh  v.  Wood,  14  Colo.  App.  265,  59 
Pac.  1024),  though  in  both  states  the  partic- 
ipation In  such  a  contract  would  be  objec- 
tionable, under  their  statutes,  so  far  as  con- 
cerns the  attorney,  and  In  New  York  an  at- 
torney was  disbarred  for  entering  into  a 
gimllar  agreement  (In  re  Clark,  184  N.  Y. 
222,  77  N.  E.  1).  The  case  of  Brown  v. 
Eigne,  21  Or.  260,  28  Pac  11,  14  L.  B.  A. 
'45,  28  Am.  St.  Rep.  752,  involved  a  con- 
tract between  laymen  by  which  plaintiff  ad- 
vanced money  to  assist  defendant  in  con- 
ducting certain  litigation  of  his  own,  and  is 
not  in  point  The  Missouri  court,  in  Keler- 
her  v.  Henderson,  203  Mo.  498,  101  S.  W. 
1083,  sustained  a  contract  similar  to  that  in 


the  case  at  bar,  though  at  the  same  time 
holding  the  contract  with  the  client  pro- 
cured by  the  layman  champertous  and  void. 
The  two  positions  are  inconsistent.  The 
layman  who  procured  the  client  and  induced 
the  champertous  contract  with  the  attorney 
was  equally  culpable  with  the  attorney. 
The  rule  of  the  Supreme  Courts  of  the  Unit- 
ed St.ites  and  of  California  and  Nebraska  Is 
in  line  with  the  policy  adopted  by  this  court 
in  the  Huber  Cases,  supra,  and  seems  to  us 
more  in  harmony  with  consistent  legal  prin- 
ciples than  the  position  of  the  other  courts 
cited. 

We  are  not  required  to  look  exclusively  to 
statutory  enactments  In  determining  ques- 
tions of  public  policy.  Constitutions  and 
statutes  are  evidence  of  the  general  policy 
of  a  state;  but  when  confronted  with  ques- 
tions of  general  public  policy,  as  defined  in 
the  books,  the  courts  go  beyond  express  leg- 
islation and  look  to  the  whole  body  of  the 
law — statutory,  common,  and  judicial  de- 
cisions. Public  policy  requires  of  courts  of 
equity  protection  from  unjust  and  uncon- 
scionable bargains,  though  no  statutory  au- 
thority be  granted  by  legislation.  For  In- 
stance, the  right  of  redemption  is  insepara- 
bly connected  with  every  mortgage,  and  the 
courts  have  held  stipulations  therein  waiv- 
ing the  right  void  as  contrary  to  public  pol- 
icy. Prlchard  v.  Elton,  38  Conn.  434;  Shobe 
T.  LuCr,  66  III.  App.  414.  Statutes  of  limita- 
tions are  designed  to  bring  an  end  to  strife 
and  litigation  by  fixing  a  time  within  which 
resort  to  the  courts  must  be  made,  and  it 
has  been  held  that  an  agreement  forever 
to  waive  the  right  to  Interpose  the  defense 
is  void.  Green  v.  Coos  Bay  Co.  (O.  C.)  23 
Fed.  67;  Wright  v.  Gardner,  98  Ky.  454,  38 
S.  W.  622,  35  S.  W.  1116;  KeUogg  t.  Dick- 
inson, 147  Mass.  432,  18  N.  E.  223,  1  L.  R. 
A.  346.  Also  contracts  not  to  resort  to  the 
courts  for  relief,  contracts  in  restraint  of 
marriage,  in  restraint  of  the  right  of  aliena- 
tion, contracts  tending  towards  a  breach  of 
confidence  or  of  contractual  relations  be- 
tween third  persons,  and  In  many  other  re- 
spects. 15  Am.  &  Eng.  Ency.  Law,  943  et 
seq.,  and  cases  cited.  Contracts  or  acts 
tending  In  the  directions  Just  indicated  are 
not  expressly  prohibited  by  statute,  but  on 
the  broad  ground  of  the  general  public  good 
are  not  enforced.  The  Intermeddler,  the 
fomenter  of  litigation,  has  always  been  ob- 
noxious, and  he  has  received  scant  treatment 
at  the  hands  of  the  law.  The  business  of 
bureauing  personal  Injury  litigation  by  a  lay- 
man under  agreement  with  an  attorney  to 
share  in  the  profits  is  too  clearly  at  variance 
with  and  in  violation  of  sound  morals  and 
the  general  policy  of  the  administration  of 
justice  to  receive  our  sanction  or  approval. 
Such  is  the  contract  sought  to  be  enforced  in 
this  case,  and  we  hold  It  contrary  to  public 
policy  and  void. 

Order  afOrmed. 


Digitized  by 


Google 


122  NORTHWESTEHN  RBPORl^ER. 


q^flnn- 


STATB  ▼.  BARNES. 
(Supreme  Ooort  of  Minnesota.    Juue  25,  1900.) 

1.  BifBBZZLXiiEirT   (g  86*)— By  Offices   or 
Tbubt  Cohpant— Evidence. 

Upon  trial  of  an  o£Scer  of  a  trust  compa> 
ny,  charged,  under  section  5078,  sttbd.  2,  Rev. 
Laws  1906,  with  larceny  in  misappropriating 
its  funds,  guilty  intent  cannot  be  inferred  from 
the  mere  fact  of  possession  thereof  by  the  offi- 
cer; but  the  state  is  required  to  prove,  beyond 
a  reasonable  doubt,  that  the  funds  were  taken 
with  intent  to  appropriate  the  same. 

[Ed.  Note.— For  other  cases,  see  Embezzle- 
ment, Dec.  Dig.  S  S6.*] 

2.  Banks    and    Banking    (J    314»)— Tbubt 

COKPANIES— EiMBEZZLfMERT   BY  OfFICEBB. 

Upon  the  trial  of  an  officer  of  a  trust  com- 

?any,  charged  under  section  8045,  Rev.  Laws 
905,  with  appropriating  the  company's  funds 
to  his  own  use  oy  becoming  indebted  to  it, 
a  guilty  intent  may  be  Inferred  from  the  mere 
fact  of  the  indebtedness. 

[Ed.  Note.— For  other  cases,  sea  Banks  and 
Banking,  Dec.  Dig.  {  814.*] 

3.  EuBEZZUEMSNT   (}   48*)— Bt   Officers   of 
Tbubt  Companies— Instbdctions. 

Held,  upon  the  trial  of  appellant  charged 
with  larceny  under  section  50T8,  subd.  2,  Rev. 
Laws  1905,  it  was  error  to  charge  the' jury  that 
in  determining  the  question  of  Intent  they  might 
consider  section  80^,  and  that  under  the  provi- 
sions of  that  section  guilty  intent  might  be  in- 
ferred, if  appellant  knowingly  became  indebted 
to  the  company. 

[Ed.  Note.— For  other  cases,  see  Embezzle- 
ment, Dec.  Dig.  §  4&*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Hennepin 
County ;  Andrew  Holt,  Judge. 

Joseph  U.  Barnes  was  convicted  of  grand 
larceny,  and  appeals.    Reversed. 

John  Llnd,  A.  TJeland,  and  A.  M.  Harrison, 
for  appellant  George  T.  Simpson,  Atty.  Gen., 
Al.  J.  Smith,  Co.  Atty.,  and  John  F.  Dahl, 
Asst  Co.  Atty.  (John  N.  Berg,  of  counsel), 
for  the  State. 

LEWIS,  J.  Appellant  was  convicted  of 
grand  larceny  in  the  first  degree  on  an  in- 
dictment which  charged  that  as  president  of 
the  Minnesota  Title  Insurance  &  Trust  Com- 
pany he  had  in  his  possession  and  control 
$10,000  belonging  to  that  company,  and  that 
he  unlawfully,  wrongfully,  and  feloniously 
appropriated  the  money  to  his  ovra  use.  The 
company  above  referred  to  was  a  corporation 
first  orsanlzed  In  September,  1885,  under  the 
provisions  of  chapter  107,  p.  138,  Laws  1883, 
as  amended  by  chapter  3,  p.  14,  Laws  1885, 
under  the  name  of  the  Minnesota  Title  In- 
surance &  Abstract  Company.  In  April,  1886, 
the  articles  of  incorporation  were  amended, 
and  the  name  was  changed  to  the  Minnesota 
Title  Insurance  &  Trust  Company. 

It  was  conceded  at  the  trial  that  appellant 
obtained  possession  of  the  $10,000,  but  he 
claimiid  to  have  borrowed  the  money  In  good 
faith  upon  ample  security.  Upon  the  ques- 
tion of  "intent"  the  court  instructed  the  Jury 


as  follows:  "The  law  says  a  person  is  pre- 
sumed to  Intend  to  do  that  which  he  actually 
does  do,  and  hence  a  jury  may  infer  Intent 
from  the  acts  and  conduct  of  the  persrai.  If 
one  knowingly  does  an  act  forbidden  or  made 
a  crime  by  law,  a  criminal  or  felonious  intent 
may  be  Inferred,  or.  In  other  words,  where 
the  act  Itself  Is  unlawful,  the  fraudulent  In- 
tent may  be  Inferred  from  the  Intentional 
commission  of  the  act  Itself.  The  law  in  re- 
lation to  Institutions  of  the  character  of  the 
Minnesota  Title  Insurance  &  Trust  Compa- 
ny, to  which  I  have  referred,  provides  (read- 
ing from  section  3045,  Rev.  Laws  1905) 
that  It  shall  not  lend  Its  funds,  moneys,  cap- 
ital, trust  funds,  or  any  other  property  what- 
soever, to  any  director,  officer,  agent,  or  em- 
ployS,  nor  shall  any  such  director,  officer, 
agent,  or  employe  become  in  any  manner  in- 
debted to  it  by  means  of  any  overdraft,  prom- 
issory note,  account.  Indorsement,  guaranty, 
or  any  other  contract ;  and  any  such  director, 
officer,  agent,  or  employ^,  who  shall  become 
so  Indebted  to  it,  shall  be  guilty  of  larceny 
of  the  amount  of  such  Indebtedness  from  the 
time  of  Its  creation.  Therefore,  If  yon  find 
that  the  defendant  did  appropriate  to  his 
own  use  some  of  the  moneys  Included  In  the 
three  Items  I  have  referred  to  as  constituting 
the  charge  against  him,  and  that  in  appro- 
priating the  same  he  did  an  act  In  violation 
of  the  statute  above  referred  to,  the  Jury 
may  from  proof  of  such  violation  knowingly 
committed  Infer  an  unlawful  and  felonious 
Intent" 

The  Jury,  having  retired,  came  into  court 
and  requested  information  regarding  the  law 
as  to  an  officer  of  a  bank  using  or  appropriat- 
ing Its  money  to  his  own  use.  and  the  court 
charged:  "Now,  that  statute  is  in  force  as 
to  trust  companies  organized  under  the  law 
under  which  this  corporation  was  organized ; 
but  you  will  understand  that  this  prosecution 
Is  not  under  that  statute,  and  I  instructed  you 
that  only  for  the  purpose  of  ascertaining 
whether  there  was  any  Intent  to  deprive  or 
defraud  the  corporation  of  its  money  In  vio- 
lation of  this  statute  you  should  consider  the 
statute.  That  is,  if  the  defendant  In  getting 
this  money— obtaining  this  money  which  he 
was  accused  of  embezzling— did  any  act  for- 
bidden by  this  law,  then  you  may  infer  from 
doing  that  forbidden  act,  if  he  did  it  know- 
ingly, that  he  Intended  to  appropriate  the 
funds  of  the  company  to  his  own  use.  It  Is 
bearing  on  the  Intent  only  that  you  may  con- 
sider that  statute  in  connection  with  the 
other  evidence." 

Appellant  was  indicted  under  subdivision  2, 
S  5078,  Rev.  Laws  1900,  and  not  under  section 
3045.  The  trial  court  so  understood  the  case, 
and  in  one  part  of  the  charge  correctly  in- 
structed the  Jury  that  the  state  assumed  the 
burden  of  proving  t)eyond  a  reasonable  doubt 
that  appellant  appropriated  the  money  to  his 


•For  other  caiei  see  same  topic  and  Boctlon  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Ulnn.) 


MANKS  T.  MOORE. 


own  use  with  felonious  Intent  Bnt  the  state- 
ment that  section  3045  might  be  taken  into 
consideration  was  error.  Under  that  section 
the  law  infers  the  felonious  intent  to  appro- 
priate the  funds  of  the  company  from  the 
fact  that  an  o£Bcer  becomes  Indebted  to  it, 
and  no  specific  Intent  need  be  shown ;  where- 
as nnder  section  5078  the  state  is  compelled 
to  prove  beyond  a  reasonable  doubt  that  the 
money  was  appropriated  with  the  intention 
to  deprive  the  company  of  it.  Upon  a  trial 
mider  section  3045,  the  state  having  shown 
an  Indebtedness,  a  prima  facie  case  of  guilt 
Is  made  out;  but  under  section  5078  indebt- 
edness may  be  consistent  with  Innocence.  The 
state  having  elected  to  Indict  appellant  un- 
der the  general  larceny  statute,  it  became  im- 
material that  the  corporation  was  organized 
as  a  trust  company  and  was  doing  in  part  a 
trust  business. 

We  deem  It  unnecessary  to  consider  the 
other  assignments. 

Beversed. 


WILLIAMS  V.  MONKS  et  al. 
(Bapreme  Court  of  Minnesota.    Jane  25,  1909.) 

KBPLEVIW  (J  72*)— EVTOERCB— CoNVlBSIOIf . 

In  an  action  to  recover  damages  for  the 
willful  and  intentional  cutting  and  conversion 
of  timber,  the  jury  returned  a  verdict  for  plain- 
tiff, and  the  trial  court,  upon  motion  duly  made, 
S anted  a  new  trial.  Held,  that  the  evidence 
d  not  sustain  the  finding  that  the  conversion 
was  willful  and  intentional,  and  the  order 
granting  a  new  trial  is  therefore  affirmed. 

[Ea.  Note.— For  other  cases,  see  Replevin,  Dec. 
IMg.  {  72.*] 

(Syllabos  by  the  Court) 

Appeal  firom  District  Court  Blue  Sarth 
Cotmty ;   A.  R.  Pfau,  Judge. 

Action  by  Daniel  WUliams  against  George 
W.  Monks  and  others.  Verdict  for  plaintiff. 
From  an  order  granting  a  new  trial,  plain- 
tur  appeals.    AfiSrmed. 

W.  H.  Williams  and  W.  L.  Comstock,  for 
appellant  S.  B.  Wilson  and  Thomas  Hughes, 
for  respondents. 

ELLIOTT,  J.  In  this  action  the  plaintiff 
sought  to  recover  the  possession  of  certain 
timber  alleged  to  have  been  taken  by  the  de- 
fendant from  the  plaintiff's  land,  and,  if  pos^ 
session  could  not  be  had,  then  damages  for  a 
willful  and  Intentional  trespass.  The  answ» 
admitted  the  cutting  and  taking  of  the  tim- 
ber, of  the  value  of  ^0,  denied  that  the  cut- 
ting and  taking  was  willful  or  intentional, 
and  alleged  tliat  the  defendants  had  no 
knowledge  that  the  plaintiff  was  Interested 
in  the  timber,  and  tihat  if  the  cutting  and 
taking  was  a  trespass,  it  was  casual  and  in- 
voluntary, with  cause  to  believe  that  it  was 
taken  from  land  which  belonged  to  the  de- 
fendants.   The  Jury  found  that  the  plaintiff 


was  the  owner  of  the  timber  In  question,  and 
that  he  was  entitled  to  possession  thereof,  or 
of  Its  value,  which  was  fixed  at  $400.  On 
motion  duly  made  the  court  set  this  verdict 
aside  and  granted  a  new  trial  by  an  order 
which  did  not  state  that  it  was  made  because 
the  verdict  was  not  sustained  by  the  evi- 
dence. The  order  was,  therefore,  not  a  dis- 
cretionary one.  The  plaintiff  appealed  to 
this  court  and  the  questions  presented  are 
whether  the  verdict  Is  sustained  by  the  evi- 
dence and  whether  there  were  any  errors  in 
the  record  which  would  justify  the  court  in 
granting  a  new  trial. 

The  timber  was  cut  daring  January  and 
February,  1906,  from  land  located  In  Aitkin 
county.  In  the  spring  of  1906  the  telephone 
poles,  fence  poets,  and  logs  were  transported 
to  Bralnerd,  and  this  transportation  greatly 
increased  their  value.  The  plaintiff  sought  to 
recover  the  value  at  Bralnerd,  under  the  rule 
established  in  State  v.  Shevlin-Carpenter  Co., 
62  Minn.  99,  64  N.  W.  81.  It  is  conceded  that 
the  value  of  the  timber  on  the  land  at  Aitkin 
county  was  much  less  than  the  amount  of  the 
verdict  returned,  and  a  careful  examination 
of  this  record  convinces  us  that  the  evidence 
was  not  sufficient  to  sustain  the  finding  of 
the  Jury  that  the  cutting  of  the  timber  was 
willful  and  intentional. 

The  order  of  the  trial  court  granting  a  new 
trial  is  therefore  aflSrmed. 


MANKS   V.   MOORB. 

(Supreme  Court  of  Minnesota.    June  25,  1909.) 

Masteb  and   Servant  (S  221*)— Ihjubt  to 
Servant— Complaint— Dkmtjbbeb. 

A  complaint  alleged  that  a  servant,  direct- 
ed by  his  master  to  shovel  dirt  In  a  trench,  ob- 
jected to  tlie  danger  to  which  he  was  exposed 
by  working  in  the  confined  space  near  a  serv- 
ant using  a  pick ;  that  the  master  commanded 
him  to  proceed  with  the  work  assigned,  under 
threat  of  dismissal  and  the  promise  that  the 
master  would  protect  him  against  all  injury 
by  reason  of  obeying  this  command:  and  that 
plaintiff  went  into  the  trench,  and  while  at 
work  there  was  injured  by  the  pick  in  nse  by 
the  other  servant.  It  is  held  that  the  complaint 
was  not  demurrable,  in  view  of  the  master's 
promise  to  protect  the  servant.  The  question 
arising  from  the  threat  of  dismissal  is  not  con- 
sidered nor  determined. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant  Cent  Dig.  !{  638-647;  Dec  Dig.  | 
221.»] 

(Syllabus  by  the  Court.) 

Appeal  from  Municipal  Court  of  St  Paul ; 
Hugo  O.  Hanft,  Judge. 

Action  by  Lorenzo  Manks  against  David 
W.  Moore.  From  an  order  overruling  a  de- 
murrer to  the  complaint  defendant  appeals. 
Affirmed. 

Walter  L.  Chapln,  for  appellant  John  W. 
WlUis  and  Emil  W.  Helmes,  for  respondent 


•For  otbar  cues  sea  sam*  topto  and  Motion  NUMBBR  la  Dec.  ft  Am.  Olsi.  1907  to  daU,  A  Reporter  Index«l 


Digitized  by  VjOOQ  l€ 


6 


122  NORTHWESTERN  REPORTER. 


(Minn. 


JAOOARD,  J.  Plaintiff  and  respondent's 
complaint  allied  the  following  facts:  He 
was  a  servant  of  defendant  and  appellant, 
engaged  In  digging  a  deep,  narrow  trench. 
Defendant  directed  plaintiff  to  go  down  Into 
the  trench,  to  shovel  away  earth  loosened 
with  a  pick  by  another  servant,  and  to  do 
bis  work  standing  in  the  bottom  of  the  trench 
with  his  back  to  the  man  using  the  pick. 
This  Involved  that  plaintiff  should  stand 
within  less  than  eight  feet  of  him.  Platn- 
tiff  told  defendant  that  there  was  not  enough 
room  for  two  men  to  work  In  that  place. 
Defendant  emphatically  told  plaintiff  to  go 
ahead  and  work  there,  and  said,  "If  you  are 
going  to  work  around  here,  you  must  help 
that  man."  Defendant  then  and  tliere  as- 
sured this  plaintiff  tliat  he  would  protect 
him  against  all  injury  by  reason  of  obeying 
this  command.  Plaintiff,  not  daring  to  re- 
fuse to  obey  such  command,  and  relying  up- 
on this  promised  assurance  of  safety,  went 
down  Into  the  trench  and  commenced  to 
shovel  away  the  earth,  standing  in  the  posi- 
tion and  at  the  point  indicated  by  defendant 
While  so  engaged  his  left  hand  was  struck 
by  the  pick  then  In  use  by  the  man  placed 
behind  plaintiff  by  defendant  As  a  result 
plaintiff  suffered  an  Injury,  to  recover  for 
which  he  brought  this  action.  To  this  com- 
plaint defendant  demurred,  on  the  ground 
that  the  facts  set  up  did  not  constitute  a 
cause  of  action.  B^om  the  order  overruling 
the  demurrer,  this  appeal'  was  taken. 

The  only  question  argued  by  defendant  is 
the  assumption  of  risk  by  plaintiff.  The  de- 
fendant's negligence  is  for  present  purposes 
admitted.  The  gist  of  defendant's  argument 
as  to  assumption  of  risk  is  that  plaintiff 
knew  all  of  the  physical  facts  and  demon- 
strated his  appreciation  of  obvious  danger 
by  expostulating  against  working  in  that  po- 
sition and  in  that  place.  See  Anderson  v. 
Wilson  Lumber  Co.,  67  Minn.  79,  69  N.  W. 
6S0;  Dell  v.  McOrath,  92  Minn.  190,  99  N. 
W.  629.  It  la  evident  that  this  argument  is 
not  based  on  a  comprehensive  conception  of 
the  facts  admitted  fov  demurrer.  It  does  not 
purport  to  cover  a  number  of  questions  fair- 
ly raised  by  the  record.  Defendant's  author- 
ities Involved  no  complaint  by  the  servant 
and  assurance  of  safety  by  the  master,  or  a 
promise  by  the  master  to  protect  the  servant 
while  at  work.  On  the  same  principle  that 
a  promise  by  the  master  to  repair  machinery 
in  response  to  complaint  by  the  servant  of 
defects  therein  may  Justify  the  servant  in 
continuing  bis  work,  many  authorities  hold 
that  when  the  servant  has  complained  of  a 
place  dangerous  in  other  respects,  and  the 
master  has  promised  to  protect  the  servant, 
that  servant  may  be  justified  in  proceeding 
to  work  in  reliance  on  the  master's  assur- 
ance of  safety  and  promise  of  protection.  Be- 
cause of  this  principle,  the  present  complaint 


was  not  demurrable.  For  aught  that  here 
appears,  it  was  easily  possible  for  the  master 
to  have  protected  the  plaintiff  from  the  dan- 
ger to  which  he  was  exposed  by  his  nearness 
to  the  servant  using  the  pick. 

Plaintiff  also  argues  that  tlie  case  is 
governed  by  the  principle  announced  by 
Llndley,  J.,  as  quoted,  although  not  approved 
by  this  court  in  the  case  of  Rase  v.  Railway- 
Co.,  120  N.  W.  367:  "The  question  wheth- 
er in  any  particular  case  the  conduct  of 
the  servant  was  volenti  et  sclent!  is  a  ques- 
tion of  fact,  and  not  of  law.  •  »  *  The 
mere  fact  that  the  plaintiff  knew  the  danger 
to  be  Incurred  is  not  conclusive.  »  •  • 
The  question  in  each  case  must  be,  not  simp- 
ly whether  the  plaintiff  knew  the  risk,  but 
whether  circumstances  are  such  as  necessa- 
rily to  lead  to  the  conclusion  that  the  whole 
risk  was  voluntarily  incurred  by  the  plain- 
tiff. •  •  •  The  doctrine  does  not  apply 
when  what  the  servant  does  is  not  induced 
by  fear  of  dismissal."  This  view  of  the  case 
defendant  has  not  argued  at  alL  His  silence 
on  this  point  however,  is  not  to  be  fairly 
construed  into  an  admission  of  plaintiff's 
contention.  In  view  of  the  conclusion  previ- 
ously stated,  however,  we  do  not  feel  obliged 
to  consider  or  to  determine'  the  issue.  It 
would  be  obviously  Improper,  moreover,  on 
demurrer,  under  present  circumstauceo,  to 
fully  discuss  the  controversy. 

Affirmed. 


GOODWIN  T.  McQAUOHY  et  al. 
(Supreme  Court  of  Minnesota.    June  25,  1909.) 

1.  Wills    (|    684*)— Construction— "Iwteb- 

EST." 

Under  the  terms  of  a  will  the  trustees  were 
directed  to  convert  any  real  estate  which  might 
belong  to  the  testator  at  the  time  of  her  death 
into  personal  property,  and  to  invest  the  pro- 
ceeds of  such  sale  in  such  a  way  as  to  proauce 
an  annual  Income,  and  to  pay  all  the  interest 
arising  out  of  the  personal  property.  Including 
the  proceeds  of  the  sale  of  such  real  estate,  an- 
nually to  a  person  named,  so  long  as  she  should 
live.  Held,  that  the  word  "interest"'  is  here 
used  as  the  equivalent  of  income,  and  that  the 
owner  of  the  life  estate  is  entitled  to  the  net 
income  only  after  the  payment  of  taxes  and 
other  necessary  and  proper  expenses  incidental 
to  the  care,  preservation,  and  handling  of  the 
property. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  i!  1614-1628;    Dec  Dig.  {  684.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  4,  pp.  8696-3701 ;  vol.  8,  p.  7691.] 

2.  LiFK  Estates  (8  15*>— Income— Dividends 
—Persons  Entitled. 

As  between  a  life  tenant,  who  is  entitled 
to  the  income  from  certain  stock  in  a  corpora- 
tion, and  a  remainderman,  who  will  reop..'c 
the  corpus  of  the  estate  after  the  death  of  the 
life  tenant,  stock  dividends  declared  out  of  a 
surplus  produced  by  the  accumulation  of  earn- 
ings after  the  death  of  the  testator  belong  to 


•ror  other  cans  s«e  same  topic  and  section  NUMBER  la  Dec^  *  Am.  Dlts.  VXn  to  date,  ft  Reporter  Indexes 


Digitized  by 


Google 


Mlno.) 


GOODWIN  T.  MoGAUQHT. 


the  life  tenant  aa  a  part  of  the  earnings  of 
the  original  stodt. 

[Ed.  Note.— For  other  vases,  see  Life  Estates, 
Cent.  Dig.  }  34;   Dec.  Dig.  I  15.*] 

(Sfllabiis  by  the  Court) 

Appeal  from  District  Court,  Winona  Coun- 
ty;  Arthur  H.  Snow,  Judge. 

Action  b7  Carrie  H.  Goodwin  against  J.  B. 
McGangliy  and  others.  From  the  judgment, 
plaintiff  appeals.  Judgment  modified,  and 
cause  remanded,  with  directions. 

Webber  &  Lees,  for  appellant  William 
Codman,  for  respondents. 

ELLIOTT,  J.  On  May  26,  1894,  Mary  E. 
Wakefield,  residing  at  Winona,  made  a  will 
which  contained  the  following  provislona: 

"10.  All  the  estate  hereafter  remaining,  I 
direct  to  be  turned  over  to  my  trustees  here- 
inafter named,  to  be  by  tbem  invested  in  such 
a  way  as  to  bear  interest,  and  if  any  real  es- 
tate shall  be  found  belonging  to  my  estate,  I. 
authorize  and  empower  the  said  trustees  to 
sell  and  convey  the  same  and  invest  the  pro- 
ceeds of  such  sales  in  such  a  way  as  to  pro- 
duce an  annual  Income,  and  to  pay  all  the 
interest  arising  out  of  my  personal  property 
left,  and  out  of  the  proceeds  of  my  real  estate 
annually  to  my  sister,  Carrie  H.  Goodwin,  as 
long  as  she  shall  live. 

"11.  Out  of  the  amount  of  the  principal  of 
the  principal  of  the  funds  in  hands  of  my 
trustees  at  the  death  of  my  sister  Carrie, 
they  are  directed  to  pay  to  the  St.  Paul's 
Episcopal  Church  of  Winona,  Minn.,  the  sum 
of  five  thousand  dollars,  to  be  forever  safely 
invested  by  the  said  religious  corporation  so 
as  to  produce  interest  to  be  forever  used  and 
allied  to  and  for  church  music  (in  memory 
of  my  dear  daughter)  and  they,  the  trustees, 
shall  further  pay  to  the  Congregational 
Church  of  South  Berwick,  Maine,  the  sum  of 
five  thousand  dollars,  to  be  safely  Invested  by 
said  religious  corporation  forever,  so  as  to 
bear  interest,  such  interest  to  be  used  for  the 
improvement  of  its  church  music. 

"12.  All  the  rest,  residue  and  remainder  of 
my  estate,  if  any  such  shall  thereafter  be 
found,  I  direct  to  be  divided  and  distributed 
in  equal  shares  among  the  then  living  chil- 
dren of  Sarah  E.  Merrill  and  of  the  late  Mary 
L.  Moody  of  Maine." 

Mrs.  Wakefield  died  August  10,  1898.  Her 
estate  vifia  inventoried  November  17,  1898,  as 
follows: 

Real    estate $21,052  90 

Household    furniture 380  75 

Merchanu'  Bank  stock 800  00 

Other   stocks 162  00 

Xotes  and  mortgages 2r>,756  43 

Other  perKMial  property 5,888  77 


Total   $54,038  85 

On  July  25,  1904,  the  probate  court  of 
Winona  county  entered  Its  final  decree,  as- 


signing the  residue  of  the  estate,  after  debts, 
legacies,  and  expenses  of  administration  had 
been  paid,  to  O.  B.  Gould  and  J.  B.  Mc- 
Gaughy,  "to  have  and  to  hold  In  trust  for  the 
uses  and  purposes  set  forth  in  the  last  will 
and  testament  of  said  deceased."  Pursuant 
to  this  decree  the  executors  turned  over  to 
the  trustees  personal  property,  amounting  to 
$22,452.34,  and  the  real  estate  of  the  deceased 
which  bad  not  been  sold.  Part  of  the  real  es- 
tate of  the  deceased  had  been  sold,  and  $8,- 
757.55  had  been  received  therefor.  The  re- 
maining real  estate  passed  into  the  hands  of 
the  trustees. 

The  trustees  managed  this  estate  together 
until  January  16,  1907,  when  Judge  Gould 
died.  Thereafter  Dr.  McGaugfay,  as  surviv- 
ing trustee,  continued  to  manage  the  estate 
until  July  3,  1907,  when  he  rendered  an  ac- 
count to  the  district  court  covering  the  en- 
tire period  of  the  trusteeship,  from  Its  be- 
ginning up  to  June  SO,  1907.  This  account 
was  allowed  by  the  district  court  on  July  22, 
1907,  and  at  the  same  time  the  resignation  of 
Dr.  McOaughy  as  trustee  was  accepted  and 
Burr  D.  Blair  was  appointed  his  successor. 
It  appears  from  the  account  so  filed  and 
allowed  that  on  the  last  day  of  June,  1907, 
the  trustees  had  on  hand  the  following  prop- 
erty: 

Moneys  invested  and  bearing  inter- 
est     $22,593  28 

Moneys  representing  proceeds  of 
real  estate  sold 3,543  33 

Cash  1.0,58  40 

Real    estate 5,277  78 


Total   $32,472  79 

During  the  whole  time  Messrs.  Gould  and 
McGaughy  acted  as  trustees  they  adminis- 
tered the  trust  as  follows:  They  kept  the 
funds  of  the  trust  estate  invested  In  interest 
or  dividend  bearing  securities,  adding  to  such 
Investments  from  time  to  time.  The  rent  re- 
ceived from  the  unsold  real  estate  was  used 
to  pay  taxes  and  expenses  attendant  upon  the 
administration  of  the  estate.  The  remaining 
moneys  required  to  pay  such  expenBe^,  .in- 
cluding taxes,  trustees'  fees,  and  other  char- 
ges were  paid  out  of  the  interest  and  divi- 
dends received  from  the  invested  personal  es- 
tate. 

Included  in  the  trust  estate  which  original- 
ly came  into  the  possession  of  the  trustees 
were  10  shares  of  stock  in  the  Merchants' 
Bank  of  Winona,  of  the  face  value  of  $100  per 
share.  On  Jnly'l,  1905,  the  bank  had  accu- 
mulated a  surplus  out  of  the  profits  of  Its 
business  during  the  preceding  years  amount- 
ing to  more  than  $50,000  and  it  also  had 
earned  in  addition  thereto  $10,000,  which  It 
carried  as  undivided  profits.  This  surplus 
had  been  set  aside  from  the  earnings  of  the 
bank  over  and  above  the  amounts  paid  in 
cash  as  dividends  with  the  exception  of  $2.- 
500,  proceeds  of  a  Judgment  collected  by  the 


•Vor  oUiar  eaaas  Ma  Mma  topic  and  aactlon  NUMBER  In  Dec.  ft  Am.  Dlsi.  1907  to  date,  &  Reporter  Indezea 


Digitized  by  VjOOQ  l€ 


122  NORTHWESTERN  REPOBTER. 


(Minn. 


bank,  that  had  been  considered  bad.  On  June 
8, 1905,  a  meeting  of  the  directors  of  the  bank 
was  called  to  consider  the  adTlsabllity  of  pay- 
ing a  stock  dividend  of  100  per  cent.  In  July 
in  lieu  of  the  regular  dividend.  On  July  17, 
1905,  the  following  resolution  was  adopted: 
"Whereas,  our  stockholders  by  unanimous 
vote  of  all  the  shares  represented  at  a  meet- 
ing held  June  28,  1905,  amended  the  articles 
of  this  bank  and  provided  for  the  Increase  of 
our  capital  stock  to  $100,000 :  Be  It  resolved, 
that  in  accordance  with  said  resolution  that 
our  capital  stock  be  Increased  to  $100,000  by 
the  payment  to  all  stockholders  of  record  on 
that  date  out  of  our  surplus  of  a  full  dividend 
of  100  per  cent.,  subject  to  the  approval  of 
the  superintendent  of  Banks  and  In  accord- 
ance with  out  state  banking  law."  Pursuant 
to  this  resolution  the  certificate  for  the  10 
shares  of  stock  which  the  trustees  held  was 
surrendered  to  the  bank,  and  a  new  certifi- 
cate for  20  shares,  of  the  face  value  of  $100 
each,  was  Issued  In  its  place  and  delivered  to 
the  trustees. 

The  present  action  was  brought  to  obtain  a 
construction  of  the  will.  Two  questions  were 
presented:  (1)  Was  Miss  Goodwin  entitled  to 
all  the  Interest  received  by  the  trustees  on  in- 
vestments of  funds  made  by  them  or  only  to 
so  much  of  such  interest  as  remained  after 
paying  therefrom  taxes  and  expenses  Incident 
to  the  management  of  the  estate?  (2)  Was 
she  entitled  to  receive  from  the  trustees  the 
10  shares  of  bank  stock  which  were  issued  in' 
July,  1905,  as  a  stock  dividend  upon  the  10 
shares  of  stock  originally  held  by  the  trus- 
tees? The  district  court  held  that  she  was 
entitled  to  receive  the  net  income  only,  and 
not  tho  stock  dividend.  From  so  much  of  the 
Judgment  the  plaintiff  appealed  to  this  court. 

1.  Under  the  terms  of  this  will  the  trustees 
were  directed  to  convert  any  real  estate 
which  might  belong  to  the  testator  at  the  time 
of  her  death  into  personal  property,  and  to 
invest  the  proceeds  of  such  sale  in  such  a 
way  as  to  produce  an  annual  income,  and  to 
pay  air  the  Interest  arising  out  of  the  person- 
al property,  including  the  proceeds  of  the  sale 
of  such  real  estate,  annually  to  the  appellant 
80  long  as  she  shall  live.  This  contemplates 
that  the  entire  estate  shall  be  converted  into 
personal  property,  and  that  it  shall  be  so  in- 
vested as  to  produce  a  regular  income,  which 
shall  be  paid  to  Miss  Goodwin  in  annual  In- 
stallments during  her  lifetime.  The  property 
is  subject  to  taxation,  and  expenses  must 
necessarily  be  incurred  for  Its  care  and  pres- 
ervation. The  words  "all  the  interest,"  here 
used,  do  not  refer  to  the  per  cent  earned  by 
the  money  placed  at  Interest.  It  is  the  equiv- 
alent of  all  the  income  arising  from  the  prop- 
erty, and  while  income  Is  often  held  to  refer 
to  what  comes  in  or  is  received  from  a  busi- 
ness or  property,  without  regard  to  the  out- 
going expenditure,  in  this  connection  it  means 
the  net,  as  distinguished  from  the  gross  In- 
come. Andrews  v.  Boyd,  5  Me.  199;  Earl  v. 
Rowe,  85  Me.  414,  58  Am.  Dec.  714;  Bates  v. 


Porter,  74  Cal.  224, 15  Pac.  732;  Bx  parte  Mc- 
Comb,  4  Bradf.  Sur.  (N.  X.)  151 ;  Thompson's 
Appeal,  100  Pa.  478.  A  direction  to  trustees 
to  pay  to  a  beneficiary  the  Income  of  the  es- 
tate, or  from  certain  property,  means  what 
is  left  after  paying  taxes  and  other  necessary 
and  proper  expenses  incident  to  the  care, 
preservation,  and  handling  of  the  estate  or 
property.  Unless  the  testator  so  states,  a 
construction  which  would  require  a  regular 
annual  diminution  of  the  corpus  of  the  estate, 
and  thus  through  the  mere  lapse  of  time  ulti- 
mately destroy  the  source  of  income,  Is  not 
admissible.  We  are  unable  to  find  any  such 
intention  in  the  language  used  in  this  will. 
This  issue  -was  properly  decided  by  the  trial 
court 

2.  Mrs.  Wakefield  died  August  10,  1898, 
and  as  a  part  of  her  estate  left  10  shares  of 
capital  stock  of  the  Merchants'  Bank  of  Wi- 
nona, of  the  par  or  face  value  of  $100  per 
share.  Prior  to  the  death  of  Mrs.  Wakefield 
this  stock  had  paid  no  dividends;  but  the 
business  of  the  bank  became  so  prosperous 
that  by  July  1,  1905,  there  had  been  accumu- 
lated, in  addition  to  the  dividends,  which 
were  paid  in  cash,  a  surplus  of  something 
over  $30,000,  in  addition  to  the  sum  of  $10,- 
000  which  was  being  carried  as-  undivided 
profits.  Twenty-five  hundred  dollars,  which 
formed  a  part  of  this  surplus,  came  from  the 
payment  of  a  Judgment  which  had  been  con- 
sidered worthless.  The  balance  bad  been  set 
aside  from  the  earnings  of  the  bank  over  and 
above  the  amounts  paid  in  cash  as  dividends. 
In  July,  1905,  in  pursuance  of  the  resolution 
recited  above,  the  bank  Issued  a  stock  divi- 
dend of  100  per  cent,  and  the  trustees  sur- 
rendered the  old  certificate  for  10  shares  and 
received  a  new  certificate  for  20  shares,  of 
the  face  value  of  $100  each.  The  surplus 
thus  distributed  was  earned  after  the  death 
of  Mrs.  Wakefield.  The  new  stock  represents 
money  earned  by  the  corporation  in  the  ordi- 
nary course  of  business,  and  which  might 
have  been  distributed  as  cash  dividends.  It 
does  not  represent  increased  capitalization, 
based  upon  an  Increase  in  the  value  of  the 
property  of  the  corporation,  and  no  question 
of  the  capitalization  of  good  will  is  involved. 

We  have,  then,  the  question  whether  a  divi- 
dend paid  In  stock,  instead  of  cash,  out  of  a 
surplus  which  resulted  from  the  earnings  of 
the  business,  after  the  death  of  the  testator 
and  the  creation  of  the  trust'  should  go  to 
the  life  tenant  as  part  of  the  earnings  of  the 
stock,  or  to  the  remainderman  as  part  of  the 
corpus  of  the  estate.  The  question  of  the 
right  to  stock  dividends,  as  between  life  ten- 
ant and  remainderman,  has  given  rise  to 
much  discussion  and  considerable  conflicting 
authority.  It  has  been  so  elaborately  consid- 
ered In  recent  cases  that  to  review  the  au- 
thorities and  state  the  varioos  reasons  upon 
which  the  conclusions  rest  would  be  mere 
repetition  of  matter  which  la  already  easily 
accessible.  A  very  full  collection  and  classi- 
fication of  the  authorities  will  be  found  in  a 


Digitized  by  VjOOQ  l€ 


Miim.) 


SCHMIDT  V.  CHICAGO,  M.  &  ST.  P.  RY.  00. 


note  la  12  Ia  R.  A.  (N.  S.)  768,  and  an  article 
In  25  Law  Rev.  25.  The  cases  are  also  class- 
ified In  tbe  recent  case  of  Kabbach  t.  Clark, 
133  Iowa,  215,  110  N.  W.  699,  12  L.  B.  A.  (N. 
S.)  801.  It  appears  that  there  are  three  well- 
defined  roles,  each  supported  by  an  ample  ar- 
ray of  author Itlee: 

(a)  In  the  early  English  cases  It  was  held 
that  ordinary  cash  and  stock  dividends  go  to 
the  life  tenant,  while  extraordinary  dividends 
belong  to  the  corpns  and  go  to  the  remainder- 
man. Brander  v.  Brander,  4  Ves.  Jr.  800; 
Irrtng  v.  Houston,  Patton  (House  of  Lords) 
S21.  This  rule  has  been  departed  from  by 
the  E&igllsh  courts,  which  now  seem  to  apply 
a  role  very  similar  to  that  announced  In 
Mlnot  ▼.  Paine,  99  Mass.  101,  96  Am.  Dec 
7(6.  See  Touch  y.  Sproule,  L.  R.  App.  Cases 
397 ;  In  re  Hopkins,  L.  R.  9  Eq.  696. 

(b)  Tbe  role  which  prevails  In  Massachn- 
setta  and  other  states  and  which  has  been 
adopted  by  the  Supreme  Court  of  the  United 
States,  1b  to  the  effect  that  stock  dividends, 
no  matter  when  earned  or  however  declared, 
shonld  be  treated  as  capital  and  given  to  tbe 
remainderman.  Mlnot  v.  Paine,  99  Mass. 
101,  96  Am.  Dec.  705 ;  Gibbons  v.  Mahon,  136 
U.  S.  549,  10  Sup.  Ct.  1057,  34  L.  Ed.  525; 
Green  v.  Bissell,  79  Conn.  547,  65  Atl.  1056,  8 
U  B.  A.  (N.  S.)  1011,  118  Am.  St  Bep.  156. 

(c)  Under  what  Is  commonly  called  the 
Pennsylvania  rule  the  court  determines  when 
the  stock  dividends  were  earned,  and  gives 
to  the  bolder  of  the  life  estate  such  as  were 
earned  after  the  life  estate  arose,  and  to  the 
remainderman  sacb  as  were  earned  before 
the  creation  of.  the  life  estate.  Earp's  Ap- 
peal, 28  Pa.  368;  Biddle's  Appeal,  99  Pa.  278; 
Hlte  V.  Hite,  93  Ky.  257,  20  S.  W.  778,  19  L. 
B.  A.  173,  40  Am.  St  Bep.  189;  GUkey  t. 
Paine,  80  Me.  319,  14  Atl.  205. 

Numerous  cases  supporting  these  various 
theories  will  be  found  collected  In  the  note  in 
12  L.  B.  A.  (N.  S.)  768.  See,  also.  Perry  on 
Trusts  (3d  Ed.)  S  544.  Mr.  Cook,  In  the  last 
edition  of  his  learned  book  on  Corporations, 
says  of  the  Pennsylvania  rule:  "This  rule, 
inaamoch  as  it  obtains  in  nearly  every  state 
In  the  Union,  may  well  be  called  the  'Ameri- 
can mle;'  It  proceeds  upon  the  theory  that 
the  court  In  disposing  of  stock  or  property 
dlTidends,  as  between  life  tenant  and  re- 
mainderman, may  properly  inquire  as  to  tbe 
time  when  the  fond  out  of  which  the  extraor- 
dinary dividend  Is  to  be  paid  was  earned 
or  accmnnlated,  and  also  as  to  the  method 
of  accomolatlon.  If  it  Is  found  to  have  ac- 
cmed  or  been  earned  before  the  life  estate 
arose.  It  may  be  held  to  be  principal,  and, 
wlthont  reference  to  the  time  when  It  Is  de- 
clared or  made  payable,  to  belong  to  the  cor- 
pns of  tbe  estate,  and  not  to  go  to  the  life 
tenant  Bnt  when  It  is  found  that  the  fund, 
oot  of  which  the  dividend  is  paid,  accrued 
or  was  earned,  not  before,  bnt  after,  the  life 
estate  arose,  then  It  may  be  held  that  the 


dividend  Is  Income  and  belongs  to  the  tenant 
for  life."  2  Cook  Corp.  (6th  Ed.)  {  654,  and 
review  of  the  cases  in  the  notes. 

It  seems  to  us  that  the  Pennsylvania  rule 
is  the  most  reasonable,  and  that  Its  applica- 
tion will  be  more  likely  to  effectuate  the  in- 
tention of  the  testator.  It  may  be  that  it  is 
not  always  easy  to  determine  when  the  fund 
was  earned;  but  that  fact  alone  is  not  suf- 
ficient reason  for  refusing  to  apply  the  rule. 
In  the  present  case  the  surplus  was  all  earn- 
ed after  the  death  of  Mrs.  Wakefield.  The 
dividend  stock  in  question  should  therefore 
be  held  to  belong  to  Miss  Goodwin,  because 
It  represents  nothing  but  the  earnings  at  the 
stock  which  belonged  to  Mrs.  Wakefield  at 
the  time  of  her  death.  The  Judgment  of  the 
trial  court  is  therefore  modified,  and  the  case 
is  remanded,  with  directions  to  make  the  con- 
clusions of  law  conform  to  tbe  views  express- 
ed herein. 

Judgment  modified. 


SCHMIDT  ▼.  CHICAGO,  M,  &  ST.  P.  BT. 
CO. 

(Supreme  Court  of  Minnesota.    July  2,  1909.) 

Afpeai.  and  Ebbob  ($  1004*)  —  Bevikw  — 

Ahount  of  Dakaobs. 

A  verdict  of  $2,500  for  personal  injuries  in 
this  case  was  a  substantial  sum,  and,  in  the 
absence  of  other  evidence  to  indicate  passion  or 
prejudice,  will  not  justify  the  inference  that 
the  juiy  were  unduly  inSuenced. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Dec  Dig.  f  1004.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Ramsey  Coun- 
ty ;   Grier  M.  Orr,  Judge. 

Action  by  Henry  L.  Schmidt  against  the 
Chicago,  Milwaukee  &  St.  Paul  Railway  Com- 
pany. Verdict  for  plaintiff  for  less  than  the 
amount  claimed,  and  he  moves  for  a  new 
trial,  and  from  an  order  denying  the  same 
he  appeals.    Affirmed. 

Samuel  A.  Anderson,  for  appellant  Nel- 
son J.  Wilcox  (F.  W.  Boot,  of  counsel),  for 
respondent 

LEWIS,  J.  Appellant  was  injured  while 
acting  as  a  brakeman  in  respondent's  service, 
and  recovered  a  verdict  for  $2,600.  He  mov- 
ed for  a  new  trial  upon  the  ground  that  the 
amount  was  inadequate  and  that  the  Jury 
were  influenced  by  passion  and  prejudice, 
and  upon  the  further  ground  that  the  ver- 
dict was  not  Justifled  by  the  evidence. 

Whether  a  new  trial,  upon  the  ground  of 
excessive  or  Inadequate  damages,  should  be 
granted  or  refused,  rests  in  the  sound  Judi- 
cial discretion  of  the  trial  court  Mohr  v. 
Williams,  95  Minn.  261,  104  N,  W.  12,  1  •!* 
B.  A.  (N.  S.)  439,  111  Am.  St  Bep.  462.  In 
cases  where  the  plaintiff  Is  entitled  to  a 


•For  otiiar  cmm  see  sam*  topic  and  SMttoa  NUMBER  in  Deo.  *  Am.  Digs.  1907  to  date,  a  Reporter  Indezei 


Digitized  by  VjOOQ  l€ 


10 


122  NORTHWESTERN  REPORTER. 


(Uinn. 


verdict  for  gnbatantial  damages,  and  tbe  Ju- 
ry awards  nominal  damages  only,  the  trial 
court  may,  In  Its  discretion,  set  the  verdict 
aside  and  grant  a  new  trial.  To  this  class 
belong  Conrad  v.  Dobmeier,  57  Minn.  147,  58 
N.  W.  8T0,  Marsh  v.  Minneapolis  Brewing 
Co.,  92  Minn.  182,  99  N,  W.  630,  Ford  v. 
Minneapolis  Street  Ry.  Co.,  98  Minn.  96,  107 
N.  W.  817,  and  Alton  v.  C,  M.  &  St  P.  Ry. 
Co.  (Minn.)  120  N.  W.  749.  No  doubt  cases 
arise  when  It  is  apparent,  from  some  event 
transpiring  during  the  course  of  the  trial, 
that  the  Jury  were  Influenced  In  such  a  man- 
ner as  to  cause  them  to  return  a  verdict  con- 
trary to  the  evidence.  From  the  record  now 
before  us,  we  are  unable  to  discover  any 
line  of  evidence  or  Incident  during  tbe  trial 
which  could  have  bad  any  such  eftect 

Cases  may  arise  when  It  will  be  permissi- 
ble to  assume,  from  the  amount  of  the  ver- 
dict alone,  that  the  Jury  were  unduly  prej- 
udiced ;  but  this  was  not  such  a  case.  Two 
thousand  five  hundred  dollars  is  a  substan- 
tial and  not  a  nominal  sum,  when  considered 
In  connection  with  tbe  evidence.  Appellant 
Is  a  young  man,  and  his  left  leg  below  the 
knee  was  so  badly  crushed  that  it  Is  useless, 
and  he  has  to  use  crutches^  According  to 
the  testimony  of  the  surgeon  attending  him, 
the  proper  treatment  would  be  to  amputate 
the  leg  two  or  three  inches  below  the  knee 
and  use  an  artificial  limb.  He  was  not  oth- 
erwise injured,  and,  so  far  as  the  record 
shows,  Is  in  full  possession  of  all  his  facul- 
ties. In  the  absence  of  other  evidence  tend- 
ing to  show  passion  or  prejudice,  tbe  amount 
returned  by  the  Jury  does  not  warrant  the 
assumption  that  the  Jury  did  not  come  to  a 
condnslon  by  the  exercise  of  deliberate  Judg- 
ment 

A  verdict  cannot  be  set  aside  simply  be- 
cause the  court  may  be  of  opinion  that  It 
was  not  adequate.  It  cannot  be  interfered 
with  because  Juries  In  other  cases  have  re- 
turned verdicts  for  much  larger  amounts  for 
similar  Injuries.  There  is  no  fixed  standard 
by  which  the  loss  of  a  Umb  can  be  estimated. 
The  minds  of  reasonable  men  naturally  dif- 
fer upon  such  a  proposition,  and  under  our 
system  of  Jurisprudence  the  decision  of  tbe 
Jury  is  final. 

Affirmed. 


JOHNSON  v.  MINNEAPOLIS  &  ST,  L. 
R.  CO. 

(Supreme  Court  of  Minnesota.    July  2,  1909.) 

RaIUOADS   ({  398*)— IlTJURT  TO   PebSORS   OR 

Tback— Evidence. 

Appellant  was  charged  with  negligence  in 
causing  the  death  of  respondent's  Intestate,  by 
failing  to  discover  him  while  lying  upon  the 
tracks  in  appellant's  railway  yard,  and  in  fail- 
ing to  properly  control  the  train.  Held,  tbe  evi- 
dence was  not  so  manifestly  and  palpably  in 
(aver  of  the  verdict  for  appellant  as  to  require 


a  reversal  of  an  order  of  the  trial  court  granting 
a  new  trial. 

[EA,  Note.— For  other  cases,  see  Railroads, 
Dec.  Dig.  {  898.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Lac  qui  Parle 
County;  Gorham  Powers,  Judge. 

Action  by  B.  P.  Johnson,  administrator, 
against  the  Minneapolis  &  St  Louis  Rail- 
road Company.  Verdict  for  defendant. 
From  an  order  granting  a  new  trial,  it  ap- 
peals.   Affirmed. 

John  I.  DUle  and  H.  L.  Hayden,  for  appel- 
lant H.  L.  Sorknes  and  Albert  E.  Clarke, 
for  respondent 

LEWIS,  J.  Iver  Strand,  respondent's  In- 
testate, was  a  man  about  45  years  of  age, 
and  acted  as  marshal  of  the  village  of  Boyd. 
The  complaint  charges  that  it  was  a  part  of 
his  duties,  and  his  custom  as  marshal,  to 
go  through  the  depot  grounds  and  around 
appellant's  railroad  yards;  that  on  the  night 
of  December  S,  1905,  between  11  and  12 
o'clock,  while  so  engaged  in  the  perforna- 
ance  of  his  duties  as  marshal,  and  while  pa- 
trolling the  depot  grounds  and  premises,  be 
Was,  for  some  unknown  reasons,  hurt  or 
otherwise  Incapacitated,  so  that  he  fell  and 
was  lying  across  the  main  track  a  short 
distance  east  of  the  depot;  that  one  of  ap- 
pellant's passenger  trains  approached  tbe 
station  from  the  east,  running  at  an  un- 
usual rate  of  speed,  not  under  the  control 
of  the  employ6s;  and  that  the  train  was 
recklessly  and  wantonly  run  over  him.  The 
Jury  returned  a  verdict  for  appellant  and 
the  court  granted  a  new  trial,  upon  the 
ground  of  errors  of  law  and  that  the  verdict 
was  not  Justified  by  the  evidence. 

There  was  evidence  tending  to  show  that 
Mr.  Strand  made  It  a  part  of  his  duties  as 
village  marshal  to  visit  the  railroad  yards 
from  time  to  time,  and  be  present  at  the 
depot  upon  the  arrival  of  trains.  About  20 
minutes  before  the  arrival  of  the  train  in 
question,  he  was  In  a  restaurant  not  far  dis- 
tant from  the  depot  and  left  with  the  re- 
mark that  it  was  about  train  time.  He  then 
appeared  to  be  in  a  normal  condition.  Tbe 
engineer  testified  that  upon  approaching  the 
depot,  and  when  within  about  150  feet  of 
the  body,  he  noticed  something  on  the  track, 
but  thought  that  It  was  a  pile  of  cinders,  and 
did  not  make  any  special  etfort  to  reduce  the 
speed  of  his  train  until  about  50  feet  from 
tbe  object  when  he  discovered  it  to  be  a 
man,  and  that  he  then  applied  the  emergency 
brakes,  but  It  was  too  late,  and  the  train 
passed  over  the  body.  There  was  evidence 
tending  to  show  that  the  train  might  have 
been  stopped  within  90  or  ICX)  feet  by  the 
application  of  tbe  emergency  brakes,  and 
that  the  train  approached  the  station  at  a 
rate  of  16  miles  an  hour,  and  that  it  did  not 


•rer  otiiw  cam  le*  Mm*  topic  and  ■actloa  NUMBER  In  Dec.  ft  Am.  Dlgi.  1907  to  date.  *  Reportwr  Indaxw 


Digitized  by  VjOOQ  l€ 


UiOD.) 


STATE  V.  BARNES. 


11 


stop  ontil  It  bad  almost  passed  the  depot 
There  was  evidence  Indicating  that  some  cin- 
ders occopled  the  space  between  the  rails 
at  the  point  where  the  body  was  lying ;  but 
the  pile  was  only  about  4  inches  high  and 
did  not  reach  to  the  top  of  the  rails.  If  this 
was  true,  then  the  cinders  ought  to  have 
been  easily  distinguished  from  the  body  of 
a  person  at  a  point  150  feet  distant,  if  the 
engineer  had  been  on  the  loolcoat,  as  be 
claimed. 

If  Mr.  Strand,  as  village  marshal,  In  the 
performance  of  his  duties,  had  the  right  to 
go  Over  app«»Mant's  tracks,  and  to  patrol  the 
yards,  and  visit  the  depot  upon  the  arrival 
of  trains,  he  was  not  a  trespasser ;  and  it 
will  not  be  assumed  that  he  was,  although 
be  was  lying  on  the  track  at  a  point  a  con- 
siderable distance  from  the  crossing.  He 
may  Iiave  fallen  while  walking  in  a  safe 
position  along  the  side  of  the  tracks,  or  at 
that  instant  may  have  been  crossing  the 
tracks,  when,  from  some  unknown  cause, 
be  became  helpless  and  fell.  The  question 
of  contributory  negligence  was  a  question 
of  fact  Under  all  these  circumstances  the 
evidence  was  not  so  manifestly  and  palpably 
in  favor  of  the  verdict  that  the  order  of  the 
trial  court  must  be  set  aside.  Hicks  ▼. 
Stone,  13  Minn.  434  (Gil.  398).  It  should  not 
be  assumed,  however,  from  this  conclusion, 
that  this  court  Is  of  the  opinion  that  the 
facts  Justify  a  recovery  by  respondent 

Affirmed. 


STATE  V.  BARNES. 

(Sapreme  Court  of  Minnesota.    June  25,  1909.) 

Banks  and  Bankiro  (M  311,  814*)— Stat- 
CTEs  ({  lis*)— Tbust  Oohfanixs— Eubez- 

ZLEMBNT    BT    OFFICEBS  —  INDICTMENT  —  RE- 
PEAL OF  Stattjtx. 

The  indictment  in  this  case  charges  that 
appellant  was  the  president  and  a  director  of 
the  Minnesota  Title  Insurance  &  Trust  Com- 
pany, a  corporation  duly  organized  and  exist- 
ing under  chapter  107,  p.  133,  Laws  1883.  and 
the  laws  amendatory  thereto  (Laws  1885,  p. 
14,  e.  3,  and  Laws  1887,  p.  123,  c.  74),  and  that 
appellant  did  unlawfully  and  feloniously  l>e- 
rome  indebted  to  the  company  in  the  sum  of 
$2,614.96,  which  amount  he  appropriated  to  his 
own  use.  Held,  chapter  Krr,  p.  133,  Laws 
1883,  providing  for  the  incorporation  of  annuity, 
safe  deposit,  and  trust  companies,  was  not  un- 
ronstitutional  Ijecanse  of  a  defective  title; 
the  act  was  expressly  repealed  by  the  Revised 
Laws  of  1905;  and  the  provisions  of  section  11 
were  continued  and  re-enacted  in  section  3045 
of  the  Code,  and  were  in  force  and  effect  at  the 
time  set  forth  in  the  indictment.  The  indict- 
ment states  facts  sufficient  to  constitute  a  pub- 
lic offense  under  the  provisions  of  section  3045, 
Rev.  Laws  1905. 

[Ed.  Note.— For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  |f  811,  314;*  Statutes, 
Cent  Dig.  H  124,  141-144;  Dec  Dig.  {  113.*] 

(Syllabus  by  the  Court) 
Case  certified  from  District  Court  Henne- 
pin County ;  Andrew  Holt  Judge. 


Joseph  U.  Bamea  was  indicted  for  grand 
larceny.  A  demurrer  to  the  indictment  was 
overruled,  and  case  certified.    Affirmed. 

John  Lind,  A.  Ueland,  and  A.  M.  Harrison, 
for  appellant  George  T.  Simpson,  Al.  J. 
Smith,  CX>.  Atty.,  and  John  F.  Dahl,  Asst  Co. 
Atty.  (John  N.  Berg,  of  counsel),  for  the 
State. 

LEWIS,  J.  Appellant  was  indicted  as  fol- 
lows: "Joseph  U.  Barnes  Is  accused  by  the 
grand  Jury  of  the  county  of  Hennepin,  in  the 
state  of  Minnesota,  by  this  indictment,  of  the 
crime  of  grand  larceny  In  the  first  degree, 
committed  as  follows:  The  said  Joseph  U. 
Barnes  on  the  2d  day  of  January,  A.  D. 
1907,  at  the  city  of  Minneapolis,  in  said  Hen- 
nepin county,  then  and  there  being  the  presi- 
dent and  a  director  of  the  Minnesota  Title 
Insurance  ft  Trust  Cktmpany,  then  and  there 
a  corporation  duly  organized,  created,  and  ex- 
isting under  and  by  virtue  of  chapter  107,  p. 
133,  Laws  of  Minnesota  1883,  and  laws 
amendatory  thereto,  did  unlawfully,  know- 
ingly, and  feloniously  become  indebted  to 
said  Minnesota  Title  Insurance  ft  Trust  Com- 
pany, in  the  sum  of  two  thousand  six  hun- 
dred and  fourteen  ,  dollars  and  ninety-six 
cents,  by  then  and  there  appropriating  to  his 
own  use  and  charging  to  his  personal  ac- 
count two  thousand  six  hundred  and  four- 
teen dollars  and  nlnety-alx  cents,  genuine, 
lawful,  and  current  money  of  the  United 
States  of  America,  of  the  value  of  two  thou- 
sand six  hundred  and  fourteen  dollars  and  • 
ninety-six  cents,  which  said  money  was  then 
and  there  the  property  of  said  Minnesota 
Title  Insurance  ft  Trust  Company,  and  no 
part  of  said  money  being  then  and  there  or 
at  any  time  due  and  payable  from  said  Min- 
nesota Title  Insurance  &  Trust  Company  to 
said  Joseph  U.  Barnes,  contrary  to  the  stat- 
ute in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  state  of 
Minnesota."  The  indictment  was  demurred  to 
upon  the  ground  that  the  facts  therein  stat- 
ed did  not  constitute  a  public  offense.  The 
trial  court  overruled  the  demurrer,  and  cer- 
tified the  case  to  this  court  for  decision  of 
certain  questions. 

The  indictment  Is  attacked  upon  the  ground 
that,  80  far  as  appears  from  its  face,  the 
company  may  have  been  incorporated  under 
the  provisions  of  section  9,  c.  107,  p.  135, 
Laws  1883,  as  amended  by  section  5,  c.  3.  p. 
17,  Laws  1885,  to  transact  a  title  insur- 
ance business  only,  and  that  It  does  not  ap- 
pear from  the  face  of  the  Indictment  for 
what  purpose  the  company  was  organized 
It  is  conceded  by  the  state  that  the  indict- 
ment was  drawn  with  reference  to  section 
3045  of  the  Revised  Laws  of  1905.  Chapter 
107,  p.  133,  Laws  1S83,  Is  entitled:  "An  act 
to  authorize  the  organization  and  Incorpora- 
tion of  annuity,  safe  deposit  and  trust  com- 


•For  •U)tr  turn  at  same  toplo  and  a«ctlon  NUMBER  In  Dm.  Jb  Am.  Dlgi.  1907  to  daU,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


12 


122  NORTHWESTEBN  EEPORTER. 


(Minn. 


panles."  Section  11  thereof  prohibits  the 
corporation  from  engaging  In  any  other  kind 
of  buslnesa,  except  as  expressly  authorized 
by  the  act,  and  makes  the  loan  of  any  money 
of  the  corporation  to  an  officer  or  director  an 
act  of  embezzlement  by  such  officer.  This 
section  is  practically  the  same  as  section 
3045  of  the  Revised  Laws  of  1905.  Corpora- 
tions organized  under  the  act  of  1883  were 
not  authorized  to  engage  in  the  title  insur- 
ance business,  but  by  chapter  3,  p.  14,  Laws 
1885,  such  companies  were  expressly  author- 
ized to  Insure  owners  of  real  estate,  mortga- 
ges, and  other  interests  in  real  estate  from 
loss  by  reason  of  defective  titles,  liens,  and 
incumbrances.  By  chapter  74,  p.  123,  Laws 
1887,  this  provision  of  the  1885  act  was  ex- 
pressly repealed,  with  this  reservation:  "But 
this  repeal  sliall  not  affect  or  be  construed 
as  referring  to  any  company  which  has  been 
heretofore  organized  under  said  act  as  so 
amended."  Subsequent  to  1885  many  amend- 
ments were  made  to  the  act  of  1883,  and 
chapter  135,  p.  221,  Laws  1887,  was  an  act 
regulating  and  confirming  the  formation  of 
real  estate  titie  insurance  companies. 

It  does  not  appear  definitely  from  the  in- 
dictment at  what  time  the  company  in  ques- 
tion was  incorporated,  but  it  was  assumed  at 
the  argument  that  it  was  after  chapter  3,  p. 
14,  of  the  Laws  of  1885,  was  enacted  and  be- 
fore the  repeal  of  that  act  by  chapter  74,  p. 
123,  Laws  of  1887.  It  is  possible  that,  al- 
though the  company  was  Incorporated  as  an 
»  annuity,  safe  deposit,  and  trust  company,  it 
may,  in  the  course  of  time,  have  become 
practically  a  title  insurance  company,  under 
the  additional  powers  granted  by  the  1885 
act  It  may  be  that  in  1907  the  company 
was  transacting  both  branches  of  business, 
and  that  the  money  Involved  in  the  transac- 
tion named  in  the  indictment  was  title  in- 
surance funds.  These  suggestions  present 
some  very  Interesting  questions,  which  we 
do  not  deem  It  proper  to  consider  at  this 
time. 

It  fairly  appears  from  the  indictment  that 
the  corporation  was  a  trust  company  within 
the  provisions  of  section  3045,  and  in  Janu- 
ary, 1907,  was  doing  a  trust  business,  and 
that  the  funds  referred  to  in  the  indictment 
were  trust  funds.  Chapter  107,  p.  133,  Laws 
1883,  and  chapter  3^  p.  14,  Laws  1885,  were 
expressly  repealed  by  the  1905  Code;  but  the 
provisions  of  section  11  of  the  1883  act  were 
incorporated  into  the  Code  as  section  3045. 
The  sections  are  practically  the  same,  and 
the  new  provision  must  be  held  to  be  a  con- 
tinuation of  the  old  one,  under  the  provi- 
sions of  section  5508  of  the  Code.  Becklin 
V.  Becklin,  99  Minn.  307,  109  N.  W.  243;  State 
ez  rel.  v.  McDonald.  101  Minn.  349,  112  N. 
W.  278. 

Hot  it  Is  claimed  that  chapter  107,  p.  133, 


Laws  1883,  was  unconstitutional,  because 
the  title  related  solely  to  the  organization 
and  incorporation  of  trust  companies,  and 
not  to  the  method  and  manner  of  conducting 
the  business  as  set  out  in  the  body  of  the 
act  If  unconstitutional,  appellant  argues 
that  the  continuation  of  the  law  in  the  Code 
was  also  void.  If  the  act  of  1883  was  un- 
constitutional Itecanse  of  the  restrictive  title, 
it  would  avail  appellant  nothing,  because  the 
same  provisions  were  re-enacted  in  the  Code, 
and  that  was  in  force  at  the  time  alleged  in 
the  indictment— January,  1907.  It  is  the 
rule  that  "where  an  act,  section,  or  provi- 
sion is  void,  because  not  within  the  title,  and 
such  act  section,  or  provision  is  afterwards 
incorporated  in  a  Code  or  revision,  and  the 
Code  or  revision  is  duly  passed  under  an  ap- 
propriate general  title,  such  act  section,  or 
provision  will  be  valid  from  the  passage  of 
the  Code  or  revision."  Sutherland  on  Stat- 
utory Construction  (Lewis'  Ed.)  i  171. 

But  we  are  unwilling  to  concede  that  ttie 
title  to  the  1883  act  was  defec^ve,  and  we 
hold  that  the  act  was  constltuti^al.  The  sub- 
ject of  the  act  is  expressed  in  the  title.  No 
one  reading  the  title  would  have  the  right 
to  assume  that  the  body  of  the  act  did  not 
define  the  purposes  and  duties  of  such  com- 
panies, and  the  objects  and  purposes  of  an 
act  need  not  be  stated  in  the  title.  Lien  v. 
Board  of  County  Commissioners,  80  Minn. 
68,  82  N.  W.  1094;  Duluth  v.  Abrahamson, 
96  Minn.  39,  1(M  N.  W.  682.  Penalties  need 
not  be  expressed  in  the  title.  State  v.  Pi- 
oneer Press  Company,  100  Minn.  173,  110  N. 
W.  867,  9  L.  R.  A.  (N.  S.)  480,  117  Am.  St 
Rep.  684.  As  expressed,  the  title  is  not  a 
cloak  for  legislation  upon  disslmilBr  matters, 
and  the  provisions  of  the  act  are  naturally 
connected  with  the  subject  expressed  in  the 
title.  Winters  v.  City  of  Duluth,  82  Minn. 
127,  84  N.  W.  788. 

For  these  reasons,  the  indictment  states 
facts  sufficient  to  constitute  a  public  offense, 
under  section  3045,  Rev.  Laws  1905,  and  tlie 
order  overruling  the  demurrer  is  affirmed. 


STATE  T.  BARNES. 
(Supreme  Court  of  Minnesota.    June  25,  1909.) 

Case  certified  from  District  Court,  Hennepin 
County;    Andrew   Holt,   Judge. 

Joseph  TJ.  Barnes  was  indicted  for  embezzle- 
ment. Special  demurrer  overruled,  and  case 
certified.    Affirmed. 

John  Lind,  A.  Ueland,  and  A.  M.  Harrison, 
for  appellant.  George  T.  Simpson,  Al.  J. 
Smith,  Co.  Atty.,  and  John  F.  Dahl,  Asst 
Co.  Atty.  (John  N.  Berg,  of  counsel),  for  the 
State. 

PER  CURIAM.  The  above-entitled  action 
is  controlled  by  the  concurrent  decision  in 
State  of  Minnesota  v.  Joseph  U.  Barnes,  122 
N.  W.  11,  and  is  accordingly  affirmed. 


Digitized  by  LjOOQIC 


Ulnn.) 


BTATB  T.  LALLY. 


13 


STATB  T.  LAUiT. 
(Sopreme  Court  of  Minnesota.    June  25,  1909.) 

I5T0XICATINO    LIQUORS    ($    236*)— INCLOSUBK 

OB  Room  Within  Licirsxd  Room. 

The  defendant  waa  convicted  of  the  of- 
fense of  maintaining  a  wineroom  in  violation 
of  the  ordinance  in  tiie  city  of  Minneapolis. 
Held,  that  upon  the  evidence  tlie  trial  court  was 
justified  in  finding  the  defendant  guilty. 

[Ed.  Note. — For  other  cases,  see  Intozicatinc 
Lmnota,  Cent  Dig.  §§  300-320;  Dec.  Dig.  | 
238.*] 

Jaggard,  J.,  dissenting. 

(Syllabus  by  the  Court.) 

Appeal  from  Municipal  Court  of  Minneapo- 
lis;   a  L.  Smith,  Judge. 

Thomas  F.  Lally  was  convicted  in  the  mu- 
nicipal court  of  Minneapolis  of  violating  the 
wineroom  ordinance,  and  he  appeals.  Af- 
firmed. 

Dodge  ft  Tautges,  for  appellant  Frank 
Healy,  City  Atty.,  and  Clyde  R.  White,  Asst 
City  Atty.,  for  the  State. 

ELLIOTT,  J.  The  defendant  was  convict- 
ed in  the  municipal  court  of  the  city  of 
Minneapolis  of  the  offense  of  maintaining 
and  keeping  a  wineroom,  in  violation  of  the 
ordinance  of  that  city  passed  April  13,  1900 
(Charters  and  Ordinances  of  1905,  p.  685), 
and  from  the  Judgment  of  the  court  entered 
thereon  appealed  to  this  court,  wliere  he  con- 
tends that  upon  the  admitted  facts  be  was 
not  guilty  of  a  violation  of  the  ordinance. 

This  ordinance  has  been  several  times  be- 
fore this  court,  and  its  scope  and  purpose 
has  been  fully  determined.  State  v.  Barge, 
82  Minn.  256,  84  N.  W.  811,  53  L.  R.  A.  428 ; 
Bute  V.  McGregor,  88  Minn.  74,  92  N.  W. 
509;  State  v.  Klein,  119  N.  W.  656.  The  very 
recent  decision  In  the  Klein  Case  renders 
farther  discussion  of  the  law  unnecessary. 
It  waa  there  stated  that  the  ordinance  "is 
directed  against  maintaining  within  a  li- 
censed room  anotlier  room  or  inclosure  where 
intoxicating  liquor  is  or  may  be  drank,  or 
which  is  or  may  be  used  as  a  lounging  or 
secret  drinlclng  place,  or  for  any  immoral 
use.  The  ordinance  is  a  wholesome  police 
regulation,  intended  to  remove  from  all  li- 
censed saloons  the  means  and  opportunity 
for  secret  drinking  or  Immoral  practices,  by 
rrerentlng  the  sale  of  intoxicating  liquors 
except  in  the  open  room  covered  by  the  li- 
cense." This  statement  must,  of  course,  be 
read  in  connection  with  what  had  already 
been  held  in  tbe  Barge  and  McGregor  Cases, 
tbat  necessary  inclosures,  such  as  oSlce,  tele- 
phone, and  toilet  rooms,  are  unobjectionable. 

We  have,  then,  simply  to  apply  the  law  to 
tbe  facts  of  this  case.  The  appellant  con- 
dacts  a  licensed  saloon  at  No.  312  First  Ave- 
nue South,  in  the  city  of  Minneapolis.  The 
arrangement  of  tlie  room  and  its  various 


compartments  and  inclosures  are  shown  by 
the  following  diagram,  which  was  used  as 
an  exhibit  in  the  case: 


The  state's  case  rests  upon  the  existence 
of  the  small  room  between  the  end  of  the 
bar  and  the  dining  room,  which  is  here  des- 
ignated as  the  "butler's  pantry."  The  ap- 
pellant claims,  and  his  evidence  tends  to 
show,  that  this  room  was  intended  to  be 
used,  and  in  fact  was  used,  for  and  as  a  kind 
of  cover  for  the  entrance  to  the  stairway 
which  leads  to  the  basement  kitchen,  and  as 
a  place  for  depositing  food  and  dishes  on  the 


*ror  otber  casos  ■••  tame  topic  and  lecUoa  NUMBER  la  Dee.  A  Am.  Digs.  1907  to  date,  A  Reporter  Indexee 


Digitized  by  VjOOQ  l€ 


14 


122  NORTHWESTERN  REPORTER. 


(Minn. 


way  to  and  from  the  kitchen.  There  tras 
also  a  telephone  in  the  room,  and  the  defend- 
ant admitted  that  It  was  occasionally  occu- 
pied by  himself  and  his  invited  guests  for 
purposes  of  dining  and  drinking;  but  the. 
state's  witness  testified  that  when  be  visited 
the  saloon  "there  was  a  big  table  in  the  cen- 
ter of  the  room,  and  there  were  six  or  eight 
persons  sitting  around  it  drinking  at  the 
time." 

While  the  nonuse  of  a  booth  or  inglosure 
for  improper  purposes  is  not  conclusive  as  to 
its  right  to  exist,  the  actual  use  of  such  a 
place  for  the  forbidden  purposes  is  certainly 
evidence  of  its  adaptability  for  such  use. 
An  examination  of  this  plan  shows  that  the 
so-called  butler's  pantry  was  certainly  capa- 
ble of  uses  which  the  ordinance  is  designed 
to  prevent,  and  under  rules  stated  and  ap- 
plied in  State  v.  Klein  we  cannot  say  that  on 
the  evidence  the  trial  court  was  not  legally 
Justified  in  finding  the  defendant  guilty  of  a 
violation  of  the  ordinance.  If  the  partitions 
which  Inclose  this  pantry  were  removed,  or 
so  arranged  as  to  allow  a  clear  and  unob- 
structed view  between  dining  room  and  bar- 
room, there  could  be  no  legal  objection  to 
the  maintenance  of  the  bar  and  dining  room 
in  what  would  then  be  but  one  room. 

Judgment  affirmed. 

JAGGARD,  J.,  dissents. 


HARRINGTON  v.  WABASH  R.  CO. 

(Supreme  Court  of  Minnesota.    June  25,  1009.) 

Carriebs  (H  135,  172*)— Fbeioht  Shipment 
—Agent  of  Shipper— Contents  of  Pack- 
age—Notice  TO  Oabrieb— Failure  to  Db- 
uvEB— Damages. 

Plaintiff  gave  to  a  local  express  company 
at  a  point  in  Missouri  a  crated  sewing  machine 
and  a  box  for  delivery  to  defendant  carrier,  to 
be  by  it  transported  to  a  point  in  Minnesota, 
and  there  delivered  to  a  named  consignee.  The 
box  was  delivered  to,  accepted  by,  ana  receipted 
for  by  defendant  as  books.  Instead  of  contain- 
ing books  only,  it  actually  contained  a  few 
books,  and  miscellaneous  articles  of  household 
goods  and  of  personal  effects.  The  value  of  the 
crated  sewing  macliine  was  $50.  The  value  of 
the  books  was  $5.  The  tariff  rate  per  hundred- 
weight fixed  by  defendant  for  books  was  63 
c-ents ;  for  household  goods  and  personal  effects, 
0414  cents.  The  articles  shipped  were  lost 
through  defendant's  negligence.    It  is  keJd: 

(1)  The  local  express  company  was  plaintiff's 
agent  for  delivering  the  box  for  shipment,  and 
for  whatever  usually  and  naturally  belongs  to 
the  doing  of  it,  and  therefore  for  the  giving  of 
the  information  necessary  to  the  shipment. 

(2)  In  the  absence  of  more  definite  informa- 
tion, the  carrier  had  the  right  to  accept  the 
shipper's  marks  as  to  the  contents  of  a  package 
offered  for  transportation,  and  was  not  bound 
to  inquire  particularly  about  them  in  order  to 
take  advantage  of  a  false  classification. 

(3)  A  neglect  on  the  part  of  the  shipper  to 
disclose  the  true  nature  of  the  contents  of  a 
receptacle  offered  for  transportation  is  conduct 
amounting  to  a  fraud  on  the  carrier,  if  there 
be  anything  in  its  form,  dimensions,  or  outward 


appearance  which  is  likely  to  throw  the  ear- 
ner off  its  guard,  whether  so  designed  or  not. 
Intention  to  impose  upon  the  carrier  is  not  es- 
sential. 

(4)  Plaintiff's  damages  were  properly  limited 
to  $55. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Dec  Dig.  a  135,  172.*] 

(Syllabus  by  the  Court.) 

Appeal  from  Municipal  Ciourt  of  Minne- 
apolis; C.  L.  Smith,  Judge. 

Action  by  Charles  H.  Harrington  against 
the  Wabash  Railroad  Company.  Verdict  for 
plaintiff  for  less  than  the  amount  claimed, 
and  he  appeals  from  an  order  denying  a  new- 
trial.    Affirmed. 

Paul  J.  Thompson,  for  appellant  F.  W. 
Root,  for  respondent 

JAGGARD,  J.  Plaintiff  and  appellant 
gave  to  the  St  Louis  Express  Company,  at 
St  Louis,  Mo.,  one  sewing  machine,  crated, 
and  one  box,  for  delivery  to  the  defendant  at 
said  St  Liouis,  to  be  by  It  transported  over 
its  lines  and  the  lines  of  its  connecting  car- 
rier or  carriers  to  Minneapolis,  Minn.,  and 
there  delivered  to  a  named  consignee.  The 
box  was  delivered  to  the  defendant,  and  ac- 
cepted by  it  for  such  shipment  as  containing 
books,  was  receipted  for  as  books,  and  was 
billed  and  given  the  rate  fixed  by  the  pub- 
lished tariff  of  the  defendant  for  transporta- 
tion of  books.  That  box,  instead  of  con- 
taining books,  only  actually  contained  a  few 
IxMks  and  many  miscellaneous  articles  of 
household  goods  and  of  personal  effects. 
The  aggregate  value  of  said  shipment,  includ- 
ing said  sewing  machine  and  attachments, 
at  the  point  of  shipment,  was  $175.  The  val- 
ue of  the  sewing  machine  and  attachments 
was  $50,  and  the  value  of  the  books  in  the 
box  was  $5.  In  said  tariff,  the  articles  in 
the  box  bore  the  classification  of  household 
goods  and  personal  effects,  and  carried  a 
rate  of  94i^  cents  per  hundredweight,  in- 
stead of  63  cents  per  hundredweight  for 
books.  The  articles  shipped  were  lost  througli 
what  is  for  present  purposes  the  admitted 
neglect  of  defendant.  Neither  the  defendant 
nor  any  person  or  persons  employed  by  or 
connected  with  it  had,  at  any  time  before 
the  same  became  lost  and  written  claim  was 
made  by  the  plaintiff  therefor,  any  knowl- 
edge, information,  or  belief  that  the  said  box 
contained  anything  more  than  books.  The 
marking  of  said  box  as  containing  books  was 
done  by  the  said  St  Louis  Express  Company, 
and  without  the  knowledge  of  the  said  plain- 
tiff, and  without  direction  from  him.  The 
trial  court  found  as  a  matter  of  fact  "that 
plaintiff,  through  his  agent,  fraudulently  mis- 
represented the  contents  of  the  package  con- 
taining all  the  household  goods,  except  the 
sewing  machine  stating  that  they  were 
books."  Plaintiff  was  allowed  $55  as  dam- 
ages. 


rTor  other  cues  see  ram*  topic  and  10011011  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  Index** 


Digitized  by 


L-oogle 


Minn.) 


HICES  T.  AULTMAN  ENGINE  &  THRESHER  CO. 


15 


1.  The'  local  express  company  was  plain- 
•ilTs  agent  for  delivery  of  the  box  for  ship- 
ment and  for  whatever  usually  and  naturally 
belonged  to  the  doing  of  it.  Mechem  on 
Agency,  {  284.  This  Included  the  giving  of 
the  information  necessary  to  such  shipment 
The  plalntur  was  therefore  bound  by  the 
act  of  Its  agent  In  marking  the  box  as  con- 
taining books.     Armstrong  v.  Railway  Co., 

53  Minn.  183,  collecting  cases  at  page  190, 

54  N.  W.  1059. 

2.  Plaintiff  contends  that  the  marking  of 
the  box  which  was  partially  true  was  a  mis- 
take only,  and  that  the  trial  court  was  not 
justified  In  finding  that  the  plaintiff,  through 
his  agent,  misrepresented  the  contents  of 
the  box  and  was  guilty  of  fraud.  It  Is,  how- 
ever, a  settled  rule  of  law  that.  In  the  ab- 
sence of  more  definite  information,  the  car- 
rier has  the  right  to  accept  the  shipper's 
marks  as  to  the  contents  of  a  package  offer- 
ed for  transportation,  and  Is  not  bound  to 
Inquire  particularly  about  them  In  order  to 
take  advantage  of  a  false  classification.  See 
Bottum  V.  C.  &  W.  C.  Ry.  Co.,  72  S.  C.  375, 
51  S.  E.  986,  2  L.  R.  A.  (N.  S.)  773,  110  Am. 
St  Rep.  610,  and  Savannah  Ry.  Co.  t.  Col- 
lins, 77  6a.  376,  3  S.  E.  416,  4  Am.  St  Rep. 
87.  Fraud  was  made  out,  although  Intention 
to  impose  on  the  carrier  was  not  shown. 
"Fraud  may  be  as  effectually  practiced  upon 
the  carrier  by  silence  as  by  a  positive  and  ex- 
press misrepresentation.  A  neglect  or  fail- 
ure to  disclose  the  real  value  of  a  package, 
and  the  nature  of  its  contents,  if  there  be  any- 
thing in  its  form,  dimensions,  or  outward 
appearance,  which  is  calculated  to  throw  the 
carrier  off  his  guard,  whether  so  designed  or 
not,  will  be  conduct  amounting  to  a  fraud 
Dpon  it.  The  intention  to  impose  upon  him 
la  not  material.  It  is  enough  if  such  is  the 
practical  effect  of  the  conduct  of  the  shipper, 
as  if  a  box  or  package,  whether  designedly 
or  not,  is  so  disguised  as  to  cause  it  to  re- 
semble such  a  lK>x  or  package  as  usually  con- 
tains articles  of  little  or  no  value,  whereby 
the  carrier  is  misled;  for  by  such  deception 
tbe  carrier  is  thrown  off  bis  guard,  and  neg- 
lects to  give  the  package  the  care  and  at- 
tention which  he  should  have  given  it,  had 
he  known  its  actual  value."  Hutchinson  on 
Carriers  (3d  Ed.)  I  330.  This  rule  was  ap- 
proved in  Bottum  v.  Railway  Co.,  72  S.  C. 
375,  51  S.  E.  985,  2  L.  R.  A.  (N.  S.)  773,  110 
Am.  St  Rep.  610.  It  was  there  held  that  "A 
misrepresentation  without  fraudulent  Intent, 
of  a  package  of-  pictures  as  containing  glass, 
in  a  shipment  of  household  goods,  will  re- 
lieve the  carrier  from  liability  for  their  loss 
above  the  value  of  a  package  of  glass,  where 
tbe  freight  rate  is  much  higher  on  pictures 
than  on  glass."  And  see  cases  collected  at 
"2  S.  C.  379,  51  S.  E.  986,  2  I*  R.  A.  (N.  8.) 
TTC,  110  Am.  St  Rep.  610.  So  in  Railway  Co. 
V.  Collins,  77  Ga.  376,  3  S.  E.  416,  4  Am.  St 
Kep.  87,  it  was  held  that  "in  an  action  against 


a  railroad  company  for  tlie  loss  of  goods  ship- 
ped by  it,  defendant's  agent  testified  that,  at 
I  the  time  of  the  shipment,  plalntltTs  husband, 
with  whom  the  agreement  for  shipment  was 
made,  stated  that,  if  the  goods  were  lost, 
tbe  company  would  have  to  pay  him  |25. 
The  court  charged,  in  substance,  that  unless 
it  appeared  that  both  the  husband  and  the 
agent  had  authority  to  make  such  valuation, 
and  actually  agreed  upon  it,  it  would  not  be 
binding  upon  plaintiff.  It  was  held  that  the 
Jury,  in  ascertaining  the  value  of  the  goods, 
might  properly  consider  such  testimony,  and 
that  the  charge  withdrew  it  from  their  con- 
sideration and  was  erroneous.  And  see 
Douglas  V.  Railway  Co.,  62  Minn.  288,  64  N. 
W.  899,  30  L.  R.  A.  860;  Express  Co.  v. 
Wood,  98  Ga.  268,  25  S.  E.  436 ;  Humphreys 
V.  Perry,  148  U.  S.  627,  13  Sup.  Ct  711,  37 
L.  Ed.  687;  Railway  Co.  v.  Shea,  66  111.  471; 
Warner  v.  Transportation  Co.,  6  Rob.  (N.  T.) 
490. 

That  in  some  of  these  cases  knowledge  on 
the  part  of  the  shipper  that  his  goods  were 
given  a  rate  less  than  they  should  have  been 
charged  Is  not  material,  in  view  of  absence 
of  any  necessity  to  show  actual  Intention  to 
defraud.  As  opposed,  plaintiff  refers  us  to 
Rice  V.  Railway  Co.,  3  Mo.  App.  27  (in  which 
an  Instruction  favorable  to  this  position  giv- 
en at  the  request  of  tbe  railroad  company 
was  afBrmed  on  an  appeal  by  the  railroad 
company),  and  to  Railway  Co.  v.  Goetz,  61 
111.  App.  161.  It  is  certain  that  the  authori- 
ties rule  this  case  for  defendant  Plaintiff 
was  properly  limited  in  damages  to  the  value 
of  tbe  crated  machine  and  to  the  value  of 
the  books  shipped. 

Affirmed. 


HICKS  et  al.  ▼.  AULTMAN  E»7GINE  & 
THRESHER  CO. 

(Supreme  Court  of  Minnesota.    July  2,  1909.) 

Sales    (§§   62,   427*)— Conthact—Breach   of 
Warkanty. 

The  question  bein^  whether  a  certain  en- 
|[ine  was  sold  under  a  written  or  an  oral  contract, 
it  is  held  that  the  evidence  Bustains  the  finding 
of  the  jury  that  the  sale  was  made  under  the 
oinl  contrnoL  It  being  conceded  that  there  was 
a  breach  of  the  warranty,  the  plaintiff  was 
therefore  entitled  to  recover,  and  the  order  of 
the  trial  court  is  affirmed. 

tEd.  Note.— For  other  cases,  see  Sales,  Dec. 
Dig.  H  52,  427.*] 

(Syllabus  b^  the  Court) 

Appeal  from  District  Court,  Clay  County; 
L.  L.  Baxter,  Judge. 

Action  by  August  Hicks  and  others  against 
the  Aultman  Engine  &  Thresher  Company. 
Judgment  for  plaintiffs.  From  an  order 
denying  a  motion  for  judgment  notwith- 
standing the  verdict  or  for  a  new  trial,  de- 
fendant appeals.    Affirmed. 


'For  etber  caMi  see  laine  topic  and  section  NUMBER  Id  Dec.  *  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 

Digitized  by  VjOOQ  l€ 


16 


122  NORTHWESTERN  RBPORTEB. 


(Neb. 


N.  I.  Johnson  (Garfield  Rustad,  of  connsel), 
for  appellant  Nye  &  Dosland,  for  respond- 
ents. 

ESiLIOTT,  J.  This  was  an  action  to  re- 
cover damages  on  a  breach  of  warranty  on 
a  certain  threshing  machine  engine.  The 
plaintiff  recovered  a  verdict  for  the  sum  of 
$1,400,  and  the  defendant  appealed  to  this 
court  from  an  order  denying  Its  motion  for 
judgment  notwithstanding  the  verdict  or 
for  a  new  trial. 

The  action  was  based  upon  an  oral  con- 
tract of  warranty.  The  defendant  claimed 
that  the  engine  was  sold  under  a  certain 
written  contract,  which  contained  a  war- 
ranty and  certain  provisions  with  reference 
to  a  right  of  action  for  a  breach  thereof. 
The  question  was  whether  the  oral  contract 
had  been  entered  Into,  and  It  was  conceded 
that.  If  the  writing  expressed  the  contract 
between  the  parties,  the  plaintiff  was  not 
entitled  to  recover.  On  the  other  hand.  If 
the  oral  contract  was  made,  as  claimed  by 
the  plaintiff,  the  right  to  recover  damages 
was  substantially  conceded,  because  It  was 
admitted  that  the  engine  was  worthless,  and 
that  there  had  been  a  breach  of  the  war- 
ranty. The  vital  question  was  whether  or 
not  the  written  contract  which  was  In  fact 
executed  was  subsequently  by  consent  of 
the  parties  rescinded,  and  a  new  oral  con- 
tract entered  Into  under  which  the  engine 
was  delivered.  The  Jury  found  by  Its  ver- 
dict that  the  engine  was  sold  and  delivered 
under  the  oral  contract  as  alleged  by  the 
plaintiff. 

The  evidence  tends  to  show  that:  On 
June  5,  1905,  the  respondent  signed  a  writ- 
ten order  for  an  engine.  Some  time  there- 
after an  engine  was  shipped  and  delivered 
to  the  respondents.  An  examination  of  the 
engine  disclosed  that  it  was  not  satisfactory. 
The  respondents  refused  to  accept  It  under 
the  written  order,  and  thereupon  the  written 
contract  was  entirely  abandoned,  and  a  ver- 
bal contract  entered  into  between  the  re- 
spondents and  the  appellant,  represented  by 
one  Rossing,  who  was  its  general  agent 
Under  this  contract  the  respondents  pur- 
chased the  engine  and  took  possession  of  the 
same.  In  the  verbal  contract  the  appellant 
warranted,  among  other  things,  that  the  en- 
gine was  well  made  and  of  good  material, 
and  that  it  would  furnish  sufficient  and 
ample  power  to  operate  the  respondents' 
grain  separator.  The  exact  terms  of  this 
warranty  need  not  be  stated,  because  It  was 
conceded  by  the  appellant  that'  the  engine 
was  worthless  for  the  purpose  for  which  It 
was  sold.  When  the  engine  was  delivered 
the  respondents  gave  their  notes  for  part  of 
the  purchase  price,  and  they  claim  that  It 
was  then  agreed  by  Rossing  that  the  notes 
should  be  kept  by  him  until  the  engine  had 
been  thoroughly  tested,  and  that  If  the  en- 


gine was  not  as  represented  the  notes  would 
be  returned.  Rossing  refused  to  return  the 
notes.  They  were  subsequently  sold  to  an 
Innocent  purchaser  for  value,  and  the  mak- 
ers were  obliged  to  pay  the  same. 

The  plaintiffs'  right  to  recover  rested  upon 
their  ability  to  establish  the  making  of  the 
oral  contract  of  warranty  and  to  show  that 
the  written  contract  had  been  rescltided  by 
mutual  consent  of  the  parties.  The  Jury 
found  In  the  plaintiff's  favor  upon  this  Issue, 
and  we  find  In  the  record  ample  evidence  to 
sustain  the  finding.  Rossing  was  the  gen- 
eral agent  of  the  corporation,  and  had  full 
power  to  consent  to  the  rescission  of  the 
written  contract  and  the  making  of  the  oral 
one.  The  provision  In  the  written  contract 
to  the  effect  that  the  agent  had  no  authority 
to  agree  to  an  abandonment  of  the  written 
order  and  to  make  an  oral  one  for  the  sale 
of  the  engine  was  so  broad  and  general  In 
Its  terms  as  to  amount  to  a  limitation  upon 
the  power  of  the  corporation  Itself,  and  was 
therefore  void.  However,  the  question  was 
not  raised  in  the  court  below,  and  cannot 
be  raised  here  for  the  first  time. 

As  the  evidence  sustains  the  finding  that 
the  sale  was  made  under  the  terms  of  the 
oral  contract,  the  most  of  the  questions 
raised  and  argued  In  the  appellant's  brief 
become  of  no  consequence.  The  damages 
were  not  excessive,  and  no  errors  were  made 
In  ruling  upon  the  accepting  or  rejection  of 
evidence,  or  in  instructing  the  jury,  which 
were  sufficiently  prejudicial  to  justify  this 
court  In  reversing  the  order  of  the  trial  court. 

Order  affirmed. 


COCKINS  V.  BANK  OF  ALMA  et  al. 

(No.  15,661.) 

(Supreme  CJourt  of  Nebraska.    June  11,  1900.) 

1.  Gabnishment  a  203*)— RWHTS  oi-  Third 
Persons. 

Service  of  summons  in  garnishment  upon 
a  debtor  of  a  solvent  attacbmeut  defendant  will 
not  revoke  an  authority,  theretofore  given  bj 
said  defendant  to  his  debtor,  to  pay  a  part  of 
said  debt  to  a  person  not  a  party  to  the  attach- 
ment suit. 

fEd.  Note.— For  other  cases,  see  Garnishment, 
Cent  Dig.  {  396;    Dec.  Dig.  S  203.*] 

2.  Rights  of  Third  Persons. 

And  in  such  a  case  the  debtor  will  be  Jus- 
tified in  acting  upon  said  instructions,  if  he 
retains  in  his  hands  twice  the  amount  of  the 
attaching  creditor's  demand. 

3.  Judgment    ft    707*)  —  Conclusiveness — 
Persons  Concluded. 

The  mere  fact  that  a  person  not  a  party  to 
a  pending  suit  empIo.ys  counsel  to  assist  in 
the  defense  thereof,  will  not  make  him  a  par- 
ty or  privy  to  such  proceedings,  nor  estop  nim 
from  questioning  the  issues  determined  therein. 
[Ed.  Note.— For  other  cases,  see  Judgment, 
Cent.  Dig.  |  1230;    Dec.  Dig.  (  707.*] 

4.  Pleading  (f  387*)— Variance— Effect. 

"There  can  be  no  recovery  if  there  is  a 
material  variance  between  the  allegations  and 


*For  other  cMei  see  sams  topic  and  section  NUMBER  In  Dee.  &  Am.  Dig:  1907  to  date,  Jb  Reporter  Indexes 


Digitized  by 


Google 


Nek) 


COCKINS  y.  BANE  OF  ALMA. 


17 


the  vnoL  The  allegata  and  probata  must 
afTM."  ElUott  T.  Carter  White-Lead  Co.,  63 
Neb.  458,  73  N.  W.  948. 

[EH  Note.— For  other  cases,  see  Pleading, 
Cent  Dig.  |  1300;   Dec.  Dig.  t  887.*] 

(Srllahoa  by  the  Court) 

Appeal  from  District  Court,  Harlan  Coun- 
ty; Adams,  Judge. 

Action  by  William  W.  Cocklns  against  the 
Bank  of  Alma  and  others.  Judgment  for 
plaintiff,  and  defendants  appeal.  Rerersed, 
with  directions. 

J.  G.  Thompson  and  Thomas  L.  Porter,  foi 
appellants.    John  BTerson,  for  appellee. 

ROOT,  J.  Action  for  the  alleged  conver- 
lion  of  plaintiff's  money.  Plaintiff  prevailed, 
and  defendants  appeal. 

In  March,  1905,  plaintiff  resided  in  Law- 
rence, Kan.,  and  owned  a  farm  near  Alma, 
Neb.,  extending  across  the  state  line  Into 
Kansas.  About  1903  he  authorized  defend- 
ants Porter  &  Orlffen,  who  are  in  the  real 
estate  business  in  Alma,  to  sell  said  land. 
March  22,  1906,  Porter  &  Orlffen  telegraphed 
and  telephoned  plaintiff  that  they  had  sold 
bis  land,  subject  to  his  approval,  for  $40  per 
acre.  Plaintiff  wired  his  acceptance  of  the 
sale,  and  went  to  Alma,  arriving  there  in 
the  forenoon  of  the  26th.  Plaintiff  had  also 
listed  his  land  for  sale  with  Gaumer  &  Har- 
baogh,  real  estate  agents  residing  In  Wood- 
ruff, Kan.,  10  miles  distant  from  Alma.  Be- 
fore closing  the  deal  through  Porter  &  Orlf- 
fen plaintiff  talked  with  Mr.  Harbaugh,  who 
claimed  that  his  firm,  and  not  said  defend- 
ants, bad  made  the  sale,  and  thereafter,  aft- 
er again  talking  with  the  Alma  men,  plain- 
tiff entered  into  a  contract  with  the  purchas- 
er, and  received  $2,800  cash.  Plaintiff  then 
went  to  the  place  of  business  of  defendant 
Bank  of  Alma,  and  deposited  a  deed  to  the 
porcluiaer  for  said  land  and  the  contract  be- 
tween himself  and  the  vendee,  and  Instruct- 
ed said  bank  to  deliver  the  deed  to  WlUey, 
the  purchaser,  whenever  the  remaining  cash 
payment  was  made,  and  Wllley's  notes,  se- 
cured by  a  mortgage  on  said  farm  for  $10,- 
000,  were  delivered  to  It  for  plaintiff.  The 
bank  was  then  to  pay  $400  to  Porter,  and 
pay  for  an  abstract  and  for  recording  the 
mortgage.  The  Instructions  were  reduced 
to  writing  by  the  president  of  the  bank,  but 
not  signed  by  plaintiff.  On  the  27th  day  of 
Uarch  Gaumer  &  Harbaugh  commenced  an 
action  in  the  county  court  of  Harlan  county 
against  plaintiff  for  $450  commission  for  sell- 
ing said  farm,  and  garnished  the  bank.  At 
that  time  the  bank  did  not  have  any  of  plain- 
tilTs  property  In  Its  possession,  nor  was  it 
Indebted  to  him.  Thereafter  Wllley  paid 
about  $4,000  to  the  bank  for  Oocklns,  and. 
according  to  plalntifTs  instructions,  it  paid 
for  the  abstract  and  for  recording  the  mort- 
gage, and  paid  to  Porter  $400.     It  retained 


$900  to  satisfy  whatever  Judgment  might  be 
rendered  In  the  attachment  suit,  and  remit- 
ted the  balance  of  the  money,  together  with 
the  notes  and  mortgage,  to  plaintiff.  Oau- 
mer  te  Harbaugh  prevailed  in  the  county 
court,  and  In  the  district  court  on  appeal, 
and  the  Judgment  rendered  was  satlsfled  by 
the  Bank  of  Alma.  Plaintiff  did  not  modify 
its  Instructions  to  the  bank,  nor  notify  it  not 
to  pay  Porter  the  $400,  but  claims  that  the 
service  of  summons  In  garnishment  was  a 
sufBcIent  revocation  of  the  bank's  authority 
to  pay  Porter. 

1.  In  the  court's  second  Instruction  the  Ju- 
rors were  Informed  that  plaintiff  ought  to 
recover  against  the  defendant  bank,  unless 
Porter  &  Griffen  were  entitled  to  a  commis- 
sion from  plaintiff.  In  the  third  Instruction 
the  Jurors  were  told  that  Porter  &  Griffen 
were  not  entitled  to  commission,  unless  they 
were  plaintiff's  agent  for  the  sale  of  said 
land,  and  sold  it  In  accordance  with  the 
terms  of  their  agency.  In  the  seventh  In- 
struction the  Jurors  were  informed  that  the 
service  of  summons  In  garnishment  on  the 
bank  revoked  Its  authority  to  pay  Porter  & 
Griffen  the  $400,  and  that  thereafter  the 
Bank  of  Alma  could  only  pay  out  Cocklns' 
money  upon  the  order  of  the  court,  or  tlie 
specific  directions  of  plaintiff  or  his  author- 
ized agents.  The  instructions  are  erroneous 
as  applied  to  the  bank.  Its  authority  to  pay 
the  $400  was  unconditional,  and  was  never 
vacated  or  modified  by  plaintiff  preceding 
the  payment  to  Porter.  So  far  as  the  bank 
was  concerned,  it  was  immaterial  whether 
Porter  &  Griffen  had  earned  a  commissiou 
or  not.  The  direction  to  the  bank  was  plain, 
and  It  ought  to  be  protected  so  far  as  plain- 
tiff may  be  concerned  If  It  followed  his  in- 
structions. It  is  true,  as  a  general  proposi- 
tion, that  chattels  In  the  possession  of  a 
garnishee,  but  owned  by  a  defendant  In  at- 
tachment proceedings,  and  debts  due  from 
the  garnishee  to  such  defendant,  are,  subse- 
quent to  the  service  of  summons  In  garnish- 
ment. In  the  custody  of  the  law,  but  that 
principle  Is  Invoked  to  protect  creditors  of 
the  defendant,  and  cannot  be  applied  to  de- 
stroy the  rights  of  third  persons  acquired 
prior  to  the  levy  of  the  attachment  or  serv- 
ice of  process  In  garnishment  Fitzgerald  v. 
Holllngsworth,  14  Neb.  188,  16  N.  W.  .345. 

We  hare  not  been  cited  to  any  authority 
holding  that  the  service  of  summons  on  the 
garnishee,  in  a  suit  against  a  solvent  defend- 
ant, will  annul  and  set  aside  a  bona  fide  as- 
signment theretofore  made  by  him,  where 
the  debt  of  the  garnishee  exceeds  several 
times  the  combined  amount  of  said  assign- 
ment and  the  claim  of  the  attaching  creditor. 
Plaintiff  could  have  protected  himself  if  he 
had  acted  Judiciously,  and  his  failure  to 
countermand  his  Instructions  to  the  bank,  or 
to  Interplead  the  rival  claimants  for  com- 
mission, win  not  Justify  a  Judgment  In  his 


•For  odier  ease*  ■••  umm  topic  and  lectlon  NUMBER  In  Dec.  ft  Am.  Digs.  U07  to  date,  ft  Reporter  Indexe* 
122  NW.— 2  ■ 


Digitized  by  VjOOQ  l€ 


18 


122  NORTHWESTERN  REPORTER. 


(Neb. 


favor  against  hla  former  debtor  or  bailee. 
Plaintiff  argnes  tbat  the  Instructions  given 
In  the  district  court  ought  not  to  be  consid- 
ered becanse  the  assignments  of  error  filed 
in  this  court  in  regard  thereto  are  joint 
The  motion  for  a  new  trial  conformed  to 
the  rule,  and  under  the  practice  established 
by  Laws  1907,  p.  496,  c.  163,  I  4,  the  assign- 
ments of  error  discussed  in  the  printed  brief 
will  be  considered.  First  National  Bank  of 
Elgin  V.  Adams  (Neb.)  118  N.  W.  1055. 

2.  As  to  Porter  &  GrlSen,  plaintiff  claims 
that  they  are  bound  by  the  judgment  ren- 
dered in  the  case  of  Ganmer  &  Harbaugh  y. 
Cocklns,  and  estopped  from  denying  tbat 
said  plaintiffs  were  the  efficient  cause  of 
the  sale  to  WlUey.  The  judgment  in  that 
case  was  received  in  evidence  over  defend- 
ants' objections.  That  record,  of  course, 
was  proper  evidence  of  Its  own  existence, 
but  ought  not  to  have  been  received  for  any 
other  purpose.  The  instructions  do  not  in- 
dicate that  the  trial  judge  considered  that 
the  judgment  concluded  the  defendants  here- 
in, but  he  did  not  Instruct  to  the  contrary. 
Counsel  argue  that,  because  at  Cocklns'  re- 
quest Porter  &  Griffen  employed  an  attor- 
ney to  assist  In  the  defense  of  said  cause,- 
they  are  bound  by  the  judgment  There  is 
nothing  In  the  record  to  indicate  that  Por- 
ter &  Griffen  were  given  the  control  of  the 
suit,  nor  that  they  bad  any  right  to  appeal 
from  the  judgment  They  did  not  instigate 
the  litigation;  nor  did  Cocklns  represent 
them  therein.  One  may  employ  counsel  to 
assist  a  litigant,  or  may  testify  as  a  wit- 
ness in  his  favor,  or  give  other  active  sup- 
port to  his  cause  In  court,  without  becom- 
ing a  party  to  the  record  or  bound  by  the 
judgment  rendered.  Schrlbar  v.  Piatt,  19 
Neb.  625,  28  N.  W.  289;  Williamson  v.  White, 
101  Ga.  276,  28  S.  E.  846,  65  Am.  St  Rep. 
SOS;  Loftis  V.  Marshall,  134  Cal.  394,  66 
Pac.  571,  86  Am.  St  Rep.  286;  State  v.  John- 
son, 123  Mo.  43,  27  S.  W.  399;  Litchfield  v. 
Goodnow's  Administrator,  123  U.  S.  549,  8 
Sup.  Ct  210,  81  L.  Ed.  199. 

Plaintiff  Cites  Missouri  P.  R.  Co.  v.  Twtss, 
35  Neb.  267,  53  N.  W.  76,  37  Am.  St  Rep. 
434,  but  we  there  held  that,  if  a  defendant 
is  sued  for  a  wrong  committed  by  a  third 
person,  and  the  party  responsible  has  knowl- 
edge of  the  suit,  and  appears  as  a  witness 
therein,  he  will  be  liable  over  to  defendant, 
and  that  connecting  common  carriers  are 
agents  for  one  another  for  the  carriage  of 
goods  accepted  by  one  carrier  to  be  delivered 
by  them  at  a  point  beyond  the  limits  of  the 
initial  carrier's  railway.  In  the  Instant 
case  the  attachment  suit  was  not  prosecuted 
in  the  Interest  of  Porter  &  Griffen,  nor  be- 
cause of  their  misconduct,  but  to  recover  a 
demand,  which  plaintiffs  therein  made 
against  Cocklns.  In  Bums  T.  Gavin,  118 
Ind.  320,  20  N.  E.  799,  cited  by  plaintiff,  the 
purchaser  from  an  assignee  of  a  bankrupt 
estate  had  induced  the  county  treasurer  to 


bring  a  suit  against  said  assignee  to  compel 
him  to  pay,  from  the  assets  of  the  estate  in 
his  hands,  certain  taxes  theretofore  levied 
on  the  property  sold  to  said  vendee,  and  had 
employed  counsel  for  the  treasurer.  The 
treasurer  was  defeated,  and  plaintiff,  after 
paying  the  taxes  himself,  brought  a  suit 
against  the  assignee,  and  it  was  held  tbat, 
as  he  bad  instigated  and  actually  controlled 
the  suit  brought  by  the  treasurer,  he  was 
bound  by  the  judgment  therein.  In  Roby  v. 
Bggers,  130  Ind.  415,  29  N.  E.  365,  also  cit- 
ed by  counsel,  the  party  held  to  be  estopped 
had  instigated  and  controlled  the  former 
Utigajtion.  Those  cases,  and  others  cited  by 
plaintiff  upon  this  phase  of  the  case,  are  not 
in  point.  It  Is  doubtful  whether  the  record 
of  the  judgment  was  relevant  from  any 
standpoint;  but,  If  admitted  for  any  pur- 
pose, the  jurors  should  have  been  cautioned 
that  it  did  not  conclude  the  defendants 
herein. 

3.  There  is  evidence  in  the  record  to  the 
effect  that  a  friend  of  Gaumer  ft  Harbaugh 
brought  said  firm  and  Willey,  the  purchaser, 
together  with  reference  to  said  sale,  and 
that  Porter  &  Griffen  were  not  the  efficient 
cause  thereof,  but  that  they  learned  of  said 
negotiations,  and  induced  WiUey  to  close  the 
deal  through  them.  Plaintiff,  however,  no- 
where alleged  that  Porter  &  Griffen  with- 
held from  him  any  material  facts,  or  made 
any  false  statements  whereby  he  was  In- 
duced to  close  the  deal  through  them,  or 
promise  to  pay  them  a  commission,  or  to  or- 
der the  bank  to  pay  the  flOO.  Neither  does 
he  charge  that  Gaumer  &  Harbaugh  actual- 
ly made  said  sale,  or  were  the  efficient  cause 
thereof.  Defendants  assert  that,  relying  on 
the  failure  of  plaintiff  to  state  a  cause  of 
action  In  his  petition,  they  did  not  introduce 
any  evidence.  The  evidence  must  support 
the  allegations  in  the  petition,  or  a  judgment 
in  plaintiff's  favor  cannot  be  sustained. 
Traver  v.  Shnefle,  33  Neb.  631.  50  N.  W.  683: 
Elliott  V.  Carter  White-Lead  Co.,  53  Neb. 
458,  73  N.  W.  948.  There  Is  not  a  scintilla 
of  evidence  to  support  the  allegation  In  the 
petition  that  plaintiff  ever  countermanded 
its  instruction  to  the  bank;  but,  on  the  con- 
trary, plaintiff  testified  that  no  such  notice 
was  given,  unless  as  a  matter  of  law  the 
service  of  summons  in  garnishment  had  that 
effect  There  Is  no  allegation  in  the  petition 
tbat  Porter  ft  Griffen,  or  either  of  them, 
deceived  plaintiff,  or  fraudulently  Induced 
him  to  order  the  bank  to  pay  their  commis- 
sion. The  evidence  affirmatively  discloses 
that  plaintiff  never  had  a  cause  of  action 
against  the  bank,  and  does  not  support  the 
case  stated,  if  any  is  made,  against  defend- 
ants Porter  &  Griffen. 

The  judgment  of  the  district  court,  there- 
fore, is  reversed,  with  directions  to  dismiss 
the  petition  as  to  the  defendant  Bank  of 
Alma,  and  for  further  proceedings  as  to  the 
other  defendants. 


Digitized  by  LjOOQIC 


Neh.) 


PUMPHREY  T.  STATE. 


19 


PUMPHRET   T.    STATE.     (No.    16,734.) 
(Sapreme  Court  of  Nebraska.     June  11.  1909.) 
L  Cbiminal  Law  (|  116814*)— Harmless  Eb- 

BOB— Selection  of  Jubt. 

A  judgment  of  conriction  will  not  be  set 
uide  becaoae  of  alleged  error  in  overruling  de- 
fendant's challen^  for  cause  to  Tenlremen, 
There  none  of  said  persons  sat  upon  the  jury, 
and  it  does  not  affirmativelr  appear  that  they 
were  peremptorily  challenged  by  him. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Uw,  Cent  Dig.  {  3117 ;  Dec.  Dig.  I  IIGBV^.*] 
2.  Cbiunai.   Law   (8   1152*)— Kkview— Dib- 

CRETioN  or  CouBT— Selection  op  Jubt. 
The  trial  court  is  vested  with  great  dis- 
cretion in  excluding  veniremen  or  talesmen  from 
t  jary,  and  its  rulings  in  that  particular  are 
not  subject  to  review  nnless  a  fair  jury  waa 
not  obtained. 

[Ed.  Note.— Por  other  caSes,  see  Criminal 
Uw,  Cent.  Dig.  {  3056;  Dec.  Dig.  {  11S2.*] 

S.   HOKICIOE  ({  18*)— HOIUOIDE  IKT  COUUISSION 

OF  RoBBEBT— Malice. 

Homicide  committed  in  the  perpetration 
of  a  robbery  is  murder  in  the  first  degree,  and 
in  such  a  case  the  turpitude  of  the  act  sup- 
plies the  element  of  deliMrate  and  premeditated 
malice. 

lEd.  Note.— For  other  cases,  see  Homicide, 
Cent  Dig.  {  31 ;  Dec.  Dig.  t  18.*] 

4.  Cbivinal  Law  (|  1166^^*)— Haricless  Er- 
BOB— Opening  Statement. 

In  a  prosecution  for  the  alleged  commis- 
sion of  a  crime,  the  defendant  may  waive  his 
opening  statement  to  the  jnry,  but  it  the  court 
compels  counsel,  over  their  objections,  to  make 
that  statement,  the  error  is  without  prejudice, 
unless  it  affirmatively  appears  from  the  record 
that  defendant  suffered  some  disadvantage 
thereby. 

[Ed.  Note. — For  other  cases,  see  Criminal 
Uw,  Dec.  Dig.  f  1166i^.*] 

5.  Witnesses  (J  79*)— Obligation  of  Oath- 
Japanese. 

An  adult  citizen  of  the  empire  of  Japan  Is 
prima  facie  competent  to  take  an  oath  and  tes- 
tify in  the  court  of  this  state.  If  a  litigant 
conceives  that  such  a  witness  does  not  under- 
stand, or  will  not  ^ive  heed  to,  the  oath  ad- 
ministered, be  may  interrogate  tlie  witness  be- 
fore he  is  sworn,  or  prove  nls  incompetence  by 
other  relevant  evidence.  If  be  fails  to  do  so, 
the  relevant  testimony  of  the  witness  should  be 
received. 

[Ed.  Note. — ^Por  other  cases,  see  Witnesses, 
Dec.  Dig.  i  79.*J 

6.  Cbiminal  Law  ff8  667,  1153*)- Method  of 

fiXAMINATION   —   NABBATTVE      FOBM  —  DlS- 

cBETiGR  OF  CouBT— Review. 

The  trial  judge  in  his  discretion  may  refuse 
to  permit  a  witness  to  testify  in  narrative  form, 
ana  his  ruling  will  not  be  reviewed  unless  that 
discretion  was  clearly  abused. 

[Eld.  Note. — For  other  cases,  see  Criminal 
Uw,  Dec.  Dig.  {{  667,  1153.*] 

7.  Criminal  Law   (J  1139*)— Review— So»- 
FiciENCT  OF  Evidence. 

It  is  the  province  of  a  jury  in  a  criminal 
case  to  try  the  issue  joined  by  a  plea  of  not 
icailty,  and,  if  the  evidence  of  the  state  uncon- 
tradicted will  support  a  conviction,  this  court 
will  not  ordinarily  interfere  with  a  verdict 
against  the  defendant 

[Ed.  Note.— For  other  cases,  see  Criminal 
Uw,   Cent   Dig.    il   3074-3083;   Dec.   Dig.   k 

(Syllabn*  by  the  Court) 


&  WiTNKSSxs   (J  38*)  — CoMPBTENOT  — "In- 
dian." 

The  word  "Indian,"  as  used  in  Civ.  Code,  { 
328  (Cobbey's  Ann.  St.  1907,  i  1313),  providing 
that  all  persons  of  sufficient  capacity  to  under- 
stand the  obligations  of  an  oath  are  competent 
witnesses  with  the  exception  of  Indians  and  ne- 
groes, who  appear  incapable  of  receiving  just 
impressions,  etc,  does  not  include  the  Japanese. 
[Ed.  Note.— For  other  cases,  see  Witnesses, 
Cent  Dig.  8S  94,  95;  Dec.  Dig.  g  38.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  4,  pp.  3544,  3545;  vol.  8,  p.  7686.] 

0.  Oath  (|  1*)— Natube. 

An  oath  is  an  outward  pledge,  given  by  the 
person  taking  it  that  his  attestation  or  promise 
is  made  under  on  immediate  sense  of  his  re- 
sponsibility to  God. 

[EM.  Note.— For  other  cases,  see  Oath,  Cent 
Dig.  i  1 ;  Dec.  Dig.  {  1.* 

For  other  definitions,  see  Words  and  Phrases, 
VOL  6,  pp.  4871-4873;  vol.  8,  p.  7733.] 

Error  to  District  Court,  Douglas  County; 
Troup,  Judge. 

Charles  Pumpbrey  was  convicted  of  mur- 
der Id  the  perpetration  of  a  robbery,  and 
he  brings  error.    AfBrmed. 

John  O.  Yelser  and  Carl  E.  Herring,  for 
plaintiff  in  error.  W.  T.  Xbompson  and 
Grant  O.  Martin,  for  tlie  State. 


HOOT,  J.  Plaintiff  In  error  waa  convict- 
ed of  committing  murder  while  in  the  p^- 
petratlon  of  a  robbery,  and,  from  a  sentence 
of  Imprisonment  In  the  state  penitentiary 
for  life,  has  appealed  to  this  court. 

1.  The  first  error  argued  is  that  the  court 
should  not  have  overruled  defendant's  chal- 
lenges for  cause  to  various  veniremen  be- 
cause thereby  he  was  compelled  to  exhaust 
his  peremptory  challenges.  The  bill  of  ex- 
ceptions discloses  the  challenges  and  the 
coturt's  rulings,  but  none  of  those  veniremen 
were  sworn  or  acted  as  Jurors  in  the  case. 
Whether  they  were  eventually  excluded  by 
the  court  on  Its  own  motion  by  agreement 
of  the  state  and  defendant,  upon  a  subse- 
quent challenge  of  the  state,  or  peremptorily 
by  defendant,  does  not  appear.  The  record, 
therefore,  does  not  support  the  contention  of 
defendant,  and  the  error  assigned  will  be 
resolved  against  him.  Shumway  v.  State 
(Neb.)  119  N.  W.  617;  Kennlson  v.  State 
(Neb.)  119  N.  W.  768. 

2.  Defendant  also  claims  that  the  court 
should  not  have  excused  the  veniremen  Lon- 
don, Thomas,  Schmidt,  and  Wiuaus.  The 
first  named  Individual  was  excused  because 
his  answers  indicated  that  he  did  not  pos- 
sess sufficient  intelligence  to  perform  the 
duties  of  a  Juror.  The  answers  were  con- 
tradictory, and  the  court  did  not  err  in  dis- 
missing this  man  from  the  Jury.  Defendant 
was  being  tried  for  murdering  a  Chinaman, 
and  the  answers  of  Thomas,  Schmidt,  and 
Winans  indicated  that  because  of  the  na- 
tionality of  the  deceased  they  would  not  be 
Inclined  to  convict  defendant    Other  venire- 


*Per  otber  eases  sea  ume  topic  and  section  NUMBER  in  Dee.  *  Am.  Digs.  U07  to  date,  ft  Reporter  Indexes. 


Digitized  by  LjOOQ  l€ 


20 


122  NORTHWESTERN  REPOBTBR. 


(Neb. 


men  were  excused  because  they  bad  con- 
sclentions  scruples  against  Inflicting  the 
death  penalty.  There  Is  nothing  In  the  rec- 
ord to  indicate  that  12  impartial  men  were 
not  secured  to  act  as  Jurors  in  the  case,  and 
the  court  ruled  wisely  and  Justly  in  excus- 
ing the  men  first  referred  to.  Richards  t. 
State,  38  Neb.  17,  63  N.  W.  1027;  State  ▼. 
Miller,  29  Kan.  43.  The  Teniremen  whose 
voir  dire  examination  disclosed  that  they 
were  prejudiced  against  inflicting  the  death 
penalty  were  also  properly  excluded  from 
the  Jury.  Rhea  t.  State,  63  Neb.  461,  476, 
88  N.  W.  788. 

3.  An  assault  is  made  upon  the  informa- 
tl<»  and  the  statute  under  which  it  was 
drawn,  but  the  questions  presented,  as  we 
understand  them,  hare  been  set  at  rest  in 
Morgan  v.  State,  61  Neb.  672,  71  N.  W.  788, 
and  Rhea  v.  State,  63  Neb.  461,  476,  88  N. 
W.  789,  and  will  not  be  further  considered. 

4  After  the  Jurors  were  sworn,  the  coun- 
ty attorney  made  his  opening  statement  of 
the  case.  Defendant's  counsel  tuereupon  re- 
quested permission  to  make  a  statement  at 
the  close  of  the  state's  evidence.  To  this 
the  county  attorney  objected,  and  the  court 
directed  defendant's  counsel  to  state  the 
defense,  although  they  desired  to  waive  that 
statement  It  has  Iieen  held  in  other  Juris- 
dictions In  construing  statutes  as  manda- 
tory as  section  478  of  the  Criminal  Code 
that  the  prosecution  may  Inti-oduce.  evidence 
without  a  preliminary  opening  statement. 
Hoisey  T.  State.  24  Tex.  App.  35,  6  S.  W. 
623;  People  v.  StoU,  148  CaL  6S9,  77  Pac. 
818;  People  v.  Weber,  149  Cal.  325,  336,  80 
Pac.  671.  Much  stronger  reasons  exist  for 
permitting  a  defendant  to  waive  his  state- 
ment of  defense,  and,  if  he  is  content  to  rest 
upon  his  plea  of  not  guilty,  the  court  ought 
to  permit  him  to  do  so.  On  the  other  hand, 
there  is  nothing  in  the  record  to  indicate 
what  statements  defendant's  counsel  made, 
nor  that  he  was  prejudiced  thereby.  The 
error  was  without  prejudice. 

5.  One  Jack  Naoi  was  called  as  a  witness 
by  the  prosecution,  and  upon  the  county  at- 
torney's statement  that  the  witness  was  a 
citizen  of  Japan,  and  could  not  speak  the 
English  language,  an  interpreter  was  pro- 
duced. Defendant's  counsel  objected  to  the 
witness  being  sworn  for  the  alleged  reason 
that  Japan  Is  a  heathen  country,  that  prima 
facie  the  witness  was  not  qualified  to  take 
an  oath,  and  that  the  state  ought  to  remove 
that  presumption  t>efore  the  oath  was  admin- 
istered. The  objection  was  overruled,  the 
witness  sworn,  and  his  testimony  given 
through  the  medium  of  an  interpreter. 
Counsel  for  defendant  cites  Speer  v.  See 
Yup  Co.,  13  CaL  73,  but  that  case  is  not  in 
point.  The  opinion  therein  was  controlled 
by  a  statute  absolutely  disqualifying  Indians 
as  witnesses,  and  In  People  v.  Hall,  4  Cal. 
399,  the  same  court  had  construed  the  word 


"Indian"  as  including  the  Mongolian  race. 
Section  828  of  the  Civil  Code  (Cobbey's  Ann. 
St  1907,  I  1313)  provides  that  every  human 
being  with  certain  named  exceptions  of  suf- 
ficient capacity  to  understand  the  obligations 
of  an  oath  is  a  competent  witness  in  all  cas- 
es, civil  and  criminal.  Among  the  exceptions 
are  "Indians  and  negroes  who  appear  inca- 
pable of  receiving  Just  Impressions  of  the 
facts  respecting  which  they  are  examined,  or 
of  relating  them  intelligently  and  truly." 
We  are  not  Inclined  to  adopt  the  reasoning 
of  the  California  court  that  the  Legislature 
Intended  to  include  the  Japanese  in  the  fore- 
going exception,  but  if  such  were  the  case, 
the  answers  of  the  witness  to  the  questions 
propounded  through  the  Interpreter  clearly 
take  him  without  the  exception.  Section  365 
of  the  Code  (Cobbey's  Ann.  St.  1907,  }  1350) 
provides:  "Before  testifying  the  witness 
shall  be  sworn  to  testify  the  truth,  the  whole 
truth,  and  nothing  but  the  truth.  The  mode 
of  administering  an  oath  shall  be  such  as  Is 
most  binding  upon  the  conscience  of  the  wit- 
ness." It  is  urged  that  the  witness  was  an 
idolater,  and  would  not  be  bound  by  an  ap- 
peal to  the  "invisible  God"  of  the  Christians. 
In  Priest  v.  State,  10  Neb.  393,  399,  6  N.  W. 
468,  469,  we  approved  Bouvler's  definition  of 
an  oath  as  "an  outward  pledge  given  by  the 
person  taking  it  tliat  his  attestation  or 
promise  is  made,  under  an  Immediate  sense 
of  his  responsibility  to  Ood."  In  that  case 
an  Indian  was  held  to  be  incompetent  to  tes- 
tify. The  Japanese,  however,  are  a  civilized 
people,  and  tiave  at  least  three  recognized 
religions — Buddhism,  Shlntoism,  and  Chris- 
tianity. No  efforts  were  made  by  defend- 
ant's counsel  to  prove  that  the  witness  was 
not  a  Christian,  nor  did  they  examine  him 
to  ascertain  whether  he  understood  the  ob- 
ligations of  the  oath  that  was  thereafter  ad- 
ministered to  him.  The  rule  seems  to  be 
well  established  that,  unless  an  adult  wit- 
ness comes  within  some  exception  to  the  gen- 
eral rule,  the  presumption  Is  that  he  is  com- 
petent to  testify,  and  the  burden  is  upon  the 
objecting  party  to  establish  the  contrary. 
This  may  properly  be  done  by  preliminary 
questions  propounded  to  the  proposed  wit- 
ness, or  by  any  other  of  the  known  methods 
of  establishing  a  fact  The  issue  will  then 
be  determined  by  the  court  Section  778,  2 
Elliott  on  Evidence ;  Arnd  v.  Amling,  53  Md. 
192,  197;  Donnelly  v.  State,  26  N.  J.  Law, 
4G3,  500;  Territory  v.  I'ee  Shun,  3  N.  M. 
(Gild.)  100,  2  Pac.  84.  Counsel  for  defendant 
not  having  established  that  the  oath  admin- 
istered was  not  in  form  to  bind  the  con- 
science or  awaken  the  apprehension  of  the 
witness,  this  assignment  of  error  must  be 
overruled. 

6.  Defendant  testified  in  his -own  behalf. 
His  counsel,  after  leading  him  up  to  the  as- 
sault upon  Ham  Pack,  the  deceased,  request- 
ed witness  to  go  on  and  relate  the  transac- 
tion.    The  county  attorney  objected  to  an 


Digitized  by  VjOOQ  l€ 


Xeb.) 


WABA8KA  BLECTRIO  CO.  v.  CITY  OP  BLUE  SPRINaS. 


21 


answer  In  narratlTe  form,  and  the  court  com- 
pelled defendant's  coansel  to  proceed  by 
questions  and  defendant  by  answers  there- 
to, and  error  is  assigned  npon  this  ruling  Of 
tbe  court  The  subject  was  one  within  tlie 
court's  discretion  and  it  had  authority  to 
compel  the  investigation  to  continue  by  ques- 
tions and  answers,  so  that  the  county  attor- 
ney mlgbt  exclude  Incompetent  and  irrele- 
Tant  testimony  by  interposing  objections  to 
questions  rather  than  to  break  in  upon  a 
long  statement  of  fact  to  object  to  irrelevant, 
hnmaterial,  or  incompetent  testimony  volun- 
tarily stated  by  the  witness.  The  trial  Judge 
must  be  permitted  to  exercise  an  almost  un- 
fettered Judgment  in  controlling  this  element 
of  practice,  and  Its  action,  unless  plainly  a 
gross  abuse  of  discretion  prejudicial  to  the 
complaining  litigant,  will  not  be  reviewed  in 
this  court  Clark  v.  Field,  42  Mich.  S42,  4  N. 
W.  19.  In  the  Instant  case  the  witness  gave 
his  version  of  the  crime  clearly  and  succinct- 
ly, and  he  was  not  in  any  manner  prejudiced 
by  an  orderly  course  of  trial. 

7.  The  instructions  given  were  fair.  Those 
requested  by  defendant  and  not  given  were 
properly  refused,  and  the  modification  of  In- 
struction numbered  5,  requested  by  defend- 
ant, was  proper.  Although  we  have  not  spe- 
cifically mentioned  every  error  assigned  in 
the  petition  In  error,  we  have  examined  all 
of  them,  and  find  that  none  of  those  not  re- 
ferred to  in  detail  in  this  opinion  present 
any  serlona  question  for  consideration. 

&  It  is  urged  that  the  probabilities  are  en- 
tirely favorable  to  defendant's  innocence. 
The  testimony  is  in  hopeless  conflict  That 
Ham  Pack  was  murdered  and  robbed  in  the 
county  of  Douglas  during  the  night  of  July 
10,  1907,  is  established  by  the  evidence  of  de-' 
fendant  and  that  of  the  witness  MuUln. 
Each  accuses  the  other  of  committing  the 
crime.  Tbere  Is  considerable  evidence  in  the 
record  corroborating  defendant,  but  there 
are  also  facts  and  circumstances  shown  by 
the  evidence  that  corroborated  Mur'°Vs  tes- 
timony. It  is  unfortunate  that  defendant's 
Impeaching  witnesses  were  all  Inmates  of 
the  state  penitentiary,  although  he  was  not 
responsible  for  their  duress,  and  probably 
none  others  were  available  for  his  purpose. 
If  the  jurors  believed  Mullln,  as  they  had  a 
right  to,  they  could  not  conscientiously  do 
otherwise  than  to  find  defendant  guilty.  The 
questions  of  fact  having  been  determined  by 
the  tribunal  whose  solemn  duty  It  was  to  as- 
certain them,  and  there  being  sufflcient  com- 
petent evidence  to  sustain  the  verdict,  we 
cannot  Interfere.  The  rulings  of  the  court 
were  not  favorable  to  defendant,  but  were 
not  prejudicially  erroneous. 

The  defendant  has  received  a  fair  trial 
within  the  meaning  of  the  law,  and  the  judg- 
ment of  the  district  court  is  afiSrmed. 


WABASKA    EJLECTRIO   CO.    v.    CITY    OP 

BLUE  SPRINGS  et  al.    (No.  15,595.) 
(Supreme  Court  of  Nebraska.    June  11,  1900.) 

1.  JUnOMENT  ff  506*)— COIXATESAL  ATTACK— 

Judgment  bt  Consent— Aobeemert—Val- 

IDITT. 

Where  a  court  having  jurisdiction  of  the 
subject-matter  of  an  action  obtains  jurisdiction 
of  the  parties  by  due  service  of  process,  or  upon 
appeal,  and  after  issue  joined  renders  judgment 
upon  an  agreement  made  in  court,  the  insuffi- 
ciency of  such  agreement,  or  the  want  of  au- 
thority of  the  attorneys  making  the  same,  will, 
at  most,  make  the  judgment  erroneous,  but  not 
void  and  subject  to  collateral  attack. 

[Bid.  Note. — For  other  cases,  see  Judgment, 
Dec  Dig.  S  505.*] 

2.  Appeal  and  Erbob  (§  1227*)— Liabilities 
ON  Bonds  —  Dibchabqe  op  Surety  —  En- 

IJLBOEMENT  OP  OBLIOATIOR. 

The  liability  of  a  surety  upon  an  appeal 
bond  is  not  enlarged  because  the  appellate  court 
adds  to  the  amount  of  the  judgment  below  in- 
terest at  the  legal  rate  from  the  date  of  its 
entry. 

[Ed.  Note. — For  otbi>r  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  4741 ;   Dec.  Dig.  S  1227.*] 

S.  Appeal  and  Ebbor  ((  1227*)— LiABiLrriES 

ON  Bonds— DiscHABOE  or  Surety— Change 

IN  Obligation. 

An  agreement  between  the  parties  to  an 
appeal  pending  in  the  district  court  without 
the  knowledge  or  consent  of  the  surety  on  the 
appeal  bond,  to  the  effect  that  judgment  be 
entered  against  the  appellant  for  a  specified 
sum,  with  costs,  based  upon  valuable  consider- 
ations moving  to  each  of  the  parties,  outside  of 
the  matters  involved  in  the  appeal,  operates  as 
a  release  of  the  surety  on  the  appeal  l>ond. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  %  4740 ;  Dec.  Dig.  i  1227.*] 

(Syllabus  by  the  Court.) 

4.   WOBDB    and    PHBASKS  —  "CONPESBION    OP 
JUDaSCEHT." 

"Confession  of  judgment"  in  its  ordinary 
and  proper  sense,  is  a  voluntary  snbmission  to 
the  jurisdiction  of  the  court  (citing  Words  and 
Phrases,  vol.  2,  p.  1420). 

Appeal  from  District  C!ourt,  Gage  County ; 
Kelllgar,  Judge. 

Action  by  the  Wabaska  Electric  Company 
against  the  City  of  Blue  Springs  and  the 
United  States  Fidelity  ft  Guaranty  Company. 
Judgment  for  plaintiff,  and  the  Guaranty 
Company  appeals.    Reversed  and  remanded. 

E.  O.  Kretslnger  and  E.  J.  Sullivan,  for 
appellant  E.  'N.  Kauffman  and  L.  W.  Colby, 
for  appellee  electric  company.  Hazlett  & 
Jack,  for  appellee  city. 

BARNES,  J.  This  was  an  action  npon 
two  certain  appeal  undertakings,  executed  br 
the  city  of  Blue  Springs,  as  principal,  and 
the  defendant  the  United  States  Fidelity  & 
Guaranty  Company,  as  surety,  to  perfect  ap- 
peals to  the  district  court  from  judgments 
rendered  In  the  county  court  in  favor  of  the 
plaintitr  and  against  the  above-named  city. 
There  was  a  judgment  for  the  plaintlflF,  and 
the  defendant  the  United  States  Fidelity  & 
Guaranty  Company  has  appealed. 

1.  It  appears  that  after  the  appeals  from 


•For  stlMr  easM  tea  Mm*  topic  ud  imUoii  NUMBER  la  Dec.  ft  Am.  Dlfi.  U07  to  dat*.  ft  Raportar  IndezM 


Digitized  by  VjOOQ  l€ 


22 


122  NORTHWESTERN  REPORTER. 


(Nebt 


the  aforesaid  Judgments  were  perfected,  and 
issues  therein  Joined  in  the  district  court, 
Judgments  were,  bjr  the  consent  of  the  par- 
ties, rendered  against  the  city  in  each  case 
in  an  amount  which  equalled  the  sum  of 
the  Judgment  in  the  county  court,  and  in- 
terest thereon  computed  at  the  rate  of  7 
per  cent  per  annum.  The  defendant  the 
United  States  Fidelity  &  Guaranty  Company 
In  Its  arguments  treats  the  stipulations  as  li 
confession  of  Judgment,  and  argues  that 
neither  the  city  attorney,  nor  the  mayor  and 
council  of  the  defendant  city,  had  any  power 
to  confess  Judgment  against  the  city,  and 
that  the  Judgments  are  therefore  void.  It 
may  be  conceded  that,  if  we  use  the  term 
"confession  of  Judgment"  in  Its  ordinary  and 
proper  sense  of  a  voluntary  submission  to 
the  Jurisdiction  of  the  court,  given  by  con- 
sent and  without  service  of  process,  what 
might  otherwise  be  obtained  by  summons, 
complaint,  and  other  formal  proceedings 
(volume  2,  p.  1420,  Words  &  Phrases),  the 
city  attorney  would  have  no  authority  to 
confess  a  Judgment,  and  that  a  Judgment 
rendered  upon  such  confession  would  be 
void,  and  might  be  collaterally  attacked. 
Where,  however,  action  is  commenced  by 
process  duly  served,  or  where,  as  In  the  case 
under  consideration,  the  action  Is  duly 
brought  by  appeal  from  a  court  so  obtaining 
Jurisdiction,  and  Judgment  is  afterwards  en- 
tered by  consent,  the  Jurisdiction  does  not 
depend  upon  such  consent,  and  the  Judgment 
Is  not  in  any  proper  sense  a  Judgment  by 
confession.  After  a  court  having  jurisdic- 
tion of  the  subject-matter  of  the  action  ac- 
quires Jurisdiction  of  the  parties  by  service 
of  process,  no  Irregularity  In  entering  Judg- 
ment deprives  It  of  Jurisdiction  so  as  to 
make  Its  Judgment  void.  As  the  court  had 
power  to  render  Judgment  upon  a  proper 
stipulation,  or  upon  sufficient  evidence,  it 
follows  that,  if  Judgment  Is  rendered  upon 
an  insufficient  stipulation,  or  upon  Insuffi- 
cient evidence — the  result  Is  the  same  In 
each  case — the  Judgment  is  erroneous,  but 
not  void.  Still  further  the  court  has  power 
to  render  a  Judgment  upon  the  pleadings  in 
a  proper  case.  If  It  exercises  this  power 
mistakenly  or  improvldently,  the  Judgment 
Is  not  void,  but  erroneous;  and  It  logically 
follows  that,  if  the  court  renders  Judgment 
without  either  consent  or  evidence,  such 
Judgment  Is  not  void,  however  erroneous  It 
may  be.  George  v.  Dill  (Neb.;  No.  15,568) 
120  N.  W.  447;  Clark  v.  Superior  Court,  65 
Cal.  190 ;  Ex  parte  Bennett,  44  Cal.  84 ;  Gar- 
ner V.  State,  28  Kan.  791;  Van  Fleet,  Col- 
lateral Attack,  §§  096,  697. 

2.  The  appealing  defendant  contends  that 
Its  liability  as  surety  was  enlarged  by  the 
rendition  of  these  Judgments.  The  amount 
of  each  Judgment,  as  we  have  seen,  equaled 
the  sum  of  the  Judgment  below,  and  Interest 
thereon  at  the  rate  of  7  per  cent,  per  annum. 
It  follows  that  no  greater  liability  Is  Imposed 
upon  the  surety  than  was  Involved  in  the 


contingency  that  the  district  conrt  might  ar- 
rive at  the  same  decision  as  the  county- 
court,  and  this  the  surety  was  bound  to  con- 
template. 

3.  In  one  of  the  stipulations  It  was  pro- 
vided that  the  Judgment  to  which  consent 
was  given  should  be  In  full  payment  of  elec- 
tric light  service  up  to  the  Ist  day  of  De- 
cember, 1903,  which  was  a  date  later  than 
that  Included  In  either  suit  This  presents 
the  question  whether  the  fact  that  the  plain- 
tl£F,  in  a  Judgment  brought  by  the  defend- 
ant from  the  county  court  to  the  district 
court  upon  appeal;  by  surrendering  his  right 
to  recover  on  another  claim.  Induces  the  de- 
fendant to  consent  to  a  Judgment  for  the 
amount  recovered  below,  thereby  releases  the 
surety.  It  appears  that,  while  the  cases 
were  pending  In  the  district  court  the  plain- 
tiff and  the  defendant  city  entered  Into  the 
stipulation  above  mentioned,  by  which  the 
city  consented  that  Judgment  be  entered  In 
that  court  the  same  as  In  the  court  below, 
with  Interest  added  for  a  valuable  considera- 
tion, viz.,  the  relinquishment  by  the  plain- 
tiff of  a  claim  for  21  months'  electric  light 
service  to  the  city.  If  plaintiff  was  willing 
to  yield  so  large  a  claim.  It  seems  reasonable 
that  It  must  have  been  on  account  of  some 
inherent  weakness  In  Its  cases  then  pending 
before  the  district  court.  For  th6  purpose 
of  getting  the  judgments  affirmed  In  that 
court  the  plaintiff  waived  Its  aforesaid  claim, 
and  consented  to  surrender  Its  franchise.  So 
far  as  the  surety  was  concerned,  the  effect 
of  that  agreement  was  to  credit  the  city  with 
the  value  of  that  claim  upon  the  Judgments 
which  It  had  appealed  from  the  county  court. 
After  that  was  done,  the  city  might  well 
have  consented  that  plaintiff's  Judgments 
should  be  affirmed. 

A  similar  case  was  before  the  Supreme 
Court  of  Alabama.  Johnson  v.  Flint  34  Ala. 
C73.  In  that  case  the  stipulation  was  as 
follows :  "It  Is  agreed  In  this  case  that 
Judgment  be  affirmed  on  the  following  terms : 
Four  hundred  dollars  shall  be  deducted  from 
the  verdict,  and  the  Judgment  shall  be  af- 
firmed for  $2,332.19,  with  Interest  thereon 
from  the  time  of  Its  rendition — that  Is,  the 
rendition  of  the  verdict — no  other  damages, 
however,  to  be  allowed.  It  Is  further  agreed 
that  the  saw  and  grist  mill,  boilers,  ma- 
chinery, etc.,  be  the  property  of  Kirk,  the 
defendant  and  that  Flint  will  deliver  them 
to  him,  when  called  for  at  the  mills  where 
they  are,  the  affirmance  to  be  at  the  cost  of 
Kirk ;  and,  if  the  mills  should  be  burned  up, 
after  this  time,  without  the  default  of  Flint, 
the  loss  shall  be  Kirk's."  Upon  these  facts 
the  court  said :  "The  appellants  were  the 
sureties  of  Kirk  on  an  appeal  bond,  the  con- 
dition of  which  was  that  Kirk  shall  'prose- 
cute to  effect  his  suit  In  the  Supreme  Court 
and  pay  and  satisfy  such  judgment  as  the 
Supreme  Court  shall  render  in  the  premises.' 
The  obligation  of  the  appellants  was  for  the 
performance  of  certain  acts  by  a  third  per- 


Digitized  by 


Google 


Neb.) 


BRES8LER  v.  COUNTY  OP  WAYNE. 


23 


Hon.  In  reference  to  obligations  of  this  de- 
scription It  is  a  well-settled  principle  thai. 
If  the  nonperformance  of  the  stipulated  acta 
iras  occasioned  by  the  conduct  of  the  credit- 
or, or  was  the  result  of  an  agreement  be- 
tween him  and  the  principal  obligor,  the 
sureties  are  discharged.  This  plain  principle 
Is  conclusive  of  this  case.  The  principal  ob- 
ligor was  prevented  from  proceeding  in  the 
attempt  to  prosecute  his  suit  to  effect  by  the 
agreement  entered  Into  between  him  and  the 
obligee,  without  the  knowledge  or  consent 
of  the  snreties.  By  thus  interfering,  and  be- 
coming a  party  to  an  agreement  binding  Kirk 
not  to  prosecute  his  appeal,  Flint  must  be 
held  to  have  waived  the  obligations  In  his 
favor  Imposed  on  the  sureties  by  the  terms 
of  their  bond.  The  sureties  guaranteed  the 
performance  by  their  principal  of  a  particu- 
lar contract,  and  engaged  for  nothing  more. 
Without  their  consent,  and  by  an  agreement 
between  the  creditor  and  their  principal,  in 
which  mntual  advantages  are  secured  to 
each  other,  the  contract  Into  which  the  sure- 
ties entered  has  been  varied.  Now,  nothing 
Is  more  clear  than  that  the  surety  will  be 
discharged,  at  common  law.  In  all  cases 
where  his  responsibility  Is  merely  for  the 
fnlfillment  by  another  of  a  contract  which 
has  been  varied,  without  the  consent  of  the 
surety,  before  a  breach  has  occurred.  In 
such  case  the  new  or  substituted  obligation 
is  not  that  which  the  surety  undertook  should 
be  performed;  and  the  party  who  seeks  to 
make  him  liable  for  the  breach  of  the  orig- 
inal agreement  has,  by  his  own  act,  prevent- 
ed, or  at  least  waived,  Its  performance  by 
binding  the  principal  obligor  to  do  something 
else  in  place  of  that  for  which  the  surety 
stipulated.  2  Am.  Lead.  Cas.  284;  Watrlss 
T.  Pierce,  32  N.  H.  560;  Woodcock  v.  Ox- 
ford Co.,  21  Eng.  L.  &  Eq.  289;  Sasscer  v. 
Toung,  6  G.  &  J.  243 ;  Mackay  &  McDonald 
v.  Dodge  &  McKay,  5  Ala.  388." 

It  would  seem  that  this  case  should  be 
niled  by  the  decision  Just  quoted.  In  the 
present  case,  before  any  breach  had  taken 
place  In  the  condition  of  the  bonds,  the  cred- 
itor and  the  principal  debtor,  without  the 
consent  of  the  sureties  of  the  latter,  entered 
into  a  new  agreement,  founded  upon  a  suffi- 
cient consideration  for  the  mutual  advantage 
of  each  other,  by  which  they  stipulated  that 
the  act  for  which  the  sureties  had  becoihe 
bound,  viz.,  the  prosecution  of  the  appeals  In 
the  district  court  to  effect  and  without  delay, 
should  not  be  performed.  No  matter  how 
numerous  the  errors  disclosed  by  the  record 
in  those  cases,  this  new  agreement  effectual- 
ly prevented  their  correction  by  the  district 
court  We  are  therefore  of  opinion  that  by 
the  conduct  of  the  parties  the  surety  was 
released  from  any  llablltly  on  the  appeal 
bonds  In  question. 

4.  It  is  strenuously  Insisted  that,  until  It 
be  shown  that  the  city  has  failed  and  refus- 


ed to  levy  each  year  the  amount  authorized 
by  law  for  the  payment  of  the  judgments 
In  question,  there  is  no  breach  of  the  condi- 
tions of  the  appeal  bonds  sued  on  in  thl^ 
action.  It  is  unnecessary  for  us  to  deter 
mine  this  question,  as  the  Judgment  of  the 
district  court  must  be  reversed  for  the  rea- 
son at>ove  stated. 

The  Judgment  of  the  district  court  is  there- 
fore reversed,  and  the  cause  remanded  for 
further  proceedings. 

Reversed  and  remanded. 


BRES8LER  v.  COUNTY  OP  WAYNE, 

(No.  15,332.) 

(Supreme  Court  of  Nebraska.    June  25,  1909.) 

1.  Taxation  (J  367*)  —  "iNVKSXitiuT  Com- 
pany"—What  CoNSTrruTES. 

A  domestic  corx)oration  formed  for  the  pur- 
pose of  buying  real  estate,  and  whose  whole 
capital  is  invested  in  land,  is  not  "an  invest- 
ment company"  under  section  56  of  the  revenue 
law  (section  10955,  Cobbey's  Ann.  St.  1907). 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  {  614;   Dec.  Dig.  §  367.» 

For  other  deSnitions,  see  Words  and  Phrases, 
vol.  4.  p.  375&] 

2.  Taxation   (I  329*)— Pbopertt   Sdbjbct— 
CoBPOBATE  Stock— Duty  to  List. 

It  is  the  duty  of  the  holder  of  shares  of 
stock  of  joint-stock  or  other  companies  to  list 
the  same  for  assessment,  "when  the  capital  stock 
of  such  company  is  not  assessed  in  this  state." 
Section  28,  Revenue  Law  (section  10927,  Cob- 
bey's Ann.  St.  1907). 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  (  549 ;   Dec.  Dig.  (  329.*] 

(Syllabus  by  the  Court) 

On  rehearing.    Former  opinion  vacated  In 
part,  and  Judgment  below  reversed. 
For  former  opinion,  see  118  N.  W.  1034. 

H.  E.  Slman  and  W.  T.  Thompson,  for  ap- 
pellant. Prank  M.  Northrop,  Welch  ft  Davis, 
and  John  L.  Kennedy,  for  appellee. 

LETTON,  J.  The  facts  In  this  case  are 
stated  In  the  former  opinion.  118  N.  W. 
1054.  The  principal  question  decided  in  that 
case  was  that  the  Nebraska  Land  Company 
Is  an  Investment  company,  and  that  Its  prop- 
erty should  be  assessed  under  the  provl- 
slond  of  section  56  of  the  revenue  law  (sec- 
tion 10955,  Cobbey's  Ann.  St  1907).  Upon 
reargument  and  further  consideration,  while 
we  adhere  to  the  principle  laid  down  in  the 
second  paragraph  of  the  syllabus  that  the 
owner  of  shares  of  stock  of  a  domestic  in- 
vestment company  Is  not  required  to  list 
them  for  taxation,  we  are  convinced  that  the 
Nebraska  Land  Company,  the  corporation 
the  taxation  of  whose  shares  to  the  individu- 
al shareholder  was  In  question.  Is  not  em- 
braced within  the  class  of  "Investment  com- 
panies," to  be  assessed  under  section  50.  In 
the  consideration  of  the  case,  we  are  con- 
fined to  an  examination  of  the  pleadings. 


•For  otber  case*  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  Indazaa 


Digitized  by  VjOOQ  IC 


24 


122  NORTHWESTERN  REPORTER. 


(Neb. 


since  tbere  is  no  bill  of  exceptions  properly 
before  us.  Wbile  the  petition  alleges  that 
the  corporation  is  an  investment  company, 
this  is  a  mere  conclusion,  and  the  further 
facts  alleged  that  It  was  formed  for  the  pur- 
pose of  purchasing  a  large  tract  of  land,  that 
all  of  its  capital  is  invested  In  the  land,  and 
that  the  real  estate  constitutes  all  its  assets, 
in  no  wise  tend  to  bring  the  corporation 
within  the  class,  but  rather  remove  it  from 
that  category.  The  fact  that  its  capital 
stock  is  invested  in  land  does  not  make  this 
an  investment  company.  We  are  not  aware 
of  anything  in  the  revenue  law  that  dis- 
tinguishes a  corporation  which  purchases 
land  from  one  which  invests  its  capital  in 
cattle  or  horses  or  in  dry  goods,  or  groceries, 
or  in  any  other  commercial  channel.  There 
is  no  particular  virtue  in  real  estate  which 
makes  a  trading  venture  In  it  an  Investment 
and  a  similar  venture  in  other  proiterty  not 
an  investment. 

In  one  sense  all  corporations  formed  for 
the  purpose  of  profit  are  Investment  compa- 
nies. Their  main  object  and  purpose  is  that 
the  stockholder  may  obtain  a  profit  from  the 
investment  of  his  money  in  the  business  of 
the  company,  but  this  is  not  the  sense  in 
which  the  words  are  used  in  the  statute. 
The  meaning  of  the  words  is  made  clear  by 
a  consideration  of  the  context  The  lan- 
guage of  the  statute,  so  far  as  pertinent,  is 
as  follows:  "The  president,  cashier,  or  other 
accounting  officer  of  every  bank  or  banking 
association,  loan  and  trust  or  Investment 
company,  shall  on  the  first  day  of  April  of 
each  year  make  out  a  statement,"  etc.  The 
"investment  company"  mentioned  In  the  sec- 
tion evidently  belongs  to  a  class  of  financial 
institutions  dealing  in  bonds,  stocks,  notes, 
mortgages,  and  other  instruments,  or  evi- 
dences of  value  representing  invested  cap- 
ital. It  properly  belongs  and  is  classed  with 
banks,  banking  associations,  and  loan  and 
trust  companies  having  a  "cashier"  or  "ac- 
counting officer."  Its  purpose  is  not  to  deal 
with  actual  and  tangible  property  itself,  so 
much  as  with  the  representatives  of  property 
or  mediums  of  exchange  such  as  money, 
notes,  obligations,  and  securities.  It  may  be 
difficult  to  draw  the  line  between  a  concern 
which  is  an  investment  company  and  one 
which  is  a  mere  broker,  but  this  we  are  not 
concerned  with  in  this  case.  There  is  a 
clear  distinction  between  a  company  formed 
to  buy  or  to  deal  In  real  estate  and  an  "in- 
vestment company"  under  the  statute.  So 
far,  then,  as  the  result  at  the  former  hearing 
is  based  upon  the  proposition  that  the  com- 
pany in  question  is  an  investment  campany, 
the  opinion  must  be  vacated. 


Section  28  of  the  revenue  law  (sectton 
10827,  Cobbey's  Ann.  St.  1907)  requires  every 
resident  of  the  state  to  list  all  "his  moneys, 
credits,  bonds,  or  stocks,  shares  of  stock  of 
Joint-stock  or  other  companies,  when  the 
capital  stock  of  such  company  is  not  assess- 
ed in  this  state."  Under  the  law  It  is  the 
duty  of  every  owner  of  capital  stock  of  cor- 
porations not  assessed  in  this  state  to  list 
the  same  for  taxation.  If  he  omits  to  do 
so,  and  the  shares  of  stock  owned  by  him 
are  sought  to  be  placed  upon  the  assessment 
roll  by  the  assessor  or  by  the  board  of  equal- 
ization, he  may  raise  the  issue  of  their  ex- 
emption from  taxation  by  presenting  facts 
to  show  that  the  capital  stock  of  such  com- 
pany is  assessed  in  this  state,  or  any  other 
matter  which  entitles  him  to  be  exempt  from 
assessment  on  such  shares.  A  hearing  can 
then  be  had  and  a  record  made  before  that 
board,  from  which,  and  on  the  particular 
question  there  decided,  an  appeal  may  be 
had  to  the  district  court.  From  the  Judg- 
ment of  that  court  on  an  appeal  to  this  court 
the  proceedings  of  the  district  court  will  be 
examined  in  the  same  manner  and  to  the 
same  extent  as  other  appeals,  and  the  same 
presumptions  will  be  applied  with  respect  to 
the  validity  of  the  findings  and  Judgments  of 
that  court  as  in  other  cases.  Woods  v.  Lin- 
coln Gas  &  Electric  Light  Co.,  74  Neb.  526, 
104  N.  W.  931.  In  the  present  case  both 
parties  seem  to  have  presumed  that  the 
question  in  the  case  was  whether  or  not  the 
Nebraska  Land  Company  was  an  investment 
company,  and  whether  its  lands  lay  In  this 
state  or  in  North  Dakota.  This  it  seems  to 
us  was  not  the  real  issue  in  the  case.  Our 
view  is  that  the  real  matter  to  determine 
was  whether  the  capital  stock  had  been  "as- 
sessed in  this  state."  If  not,  it  was  taxable 
to  the  owner  of  the  shares.  So  far  as  the 
question  of  the  right  to  deduct  the  value  of 
the  real  estate  from  the  assessment  of  the 
capital  stock  of  the  corporation  is  concerned, 
this  was  not  properly  before  the  court,  since 
it  was  a  matter  which  directly  concerned 
the  corporation,  to  which  it  was  the  proper 
party  and  not  the  stockholder.  The  petition 
alleges  that  the  capital  stock  of  the  Nebras- 
ka Land  Company  was  assessed,  not  to  the 
company  Itself,  but  to  the  individual  stock- 
holder, and  this  is  admitted  by  the  answer. 
If  not  assessed  to  the  corporation,  It  should 
have  been  assessed  to  the  individual.  On 
the  facts  pleaded  the  shares  were  properly 
assessed  to  the  plaintiff,  and  the  Judgment 
was  erroneous. 

The  former  opinion  is  vacated  in  so  far 
as  it  holds  that  the  Nebraska  Land  Compa- 
ny is  an  investment  company,  and  the  Judg- 
ment of  the  district  court  1b  reversed. 


Digitized  by 


Google 


Xeb.)    SUNDERLAND  ROOFING  &  SUPPLY  CO.  v.  UNITED  STATES  P.  A  G.  CO. 


25 


BITNDBRLAND  ROOFING  &  SUPPLY  CO. 
T.  UNITED  STATES  FIDELITY  &  GUAR- 
ANTY CO.     (No.  16,678.) 

(Snpreme  Court  of  Nebraska.     Jane  25,  1909.) 

insubance  (5  285*)— indemnitt  insubancb— 
Appucation— Bbeach  of  Wabbantt. 
A  written  statement  made  bj  an  employer 
to  a  bondine  company,  to  the  effect  that  the 
iccounts  of  applicant's  cashier  have  been  exam- 
ined npon  a  certain  date,  and  were  found  to  be 
correct  with  cash  and  securitiea  on  hand  to  bal- 
ance, which  statement  is  intended  to  and  does 
enter  into  a  contract  between  said  parties  in- 
drmnifying  the  employer  against  said  cashier's 
dishonesty,  and  induces  the  execution  thereof,  is 
hi  the  nature  of  a  warranty,  and,  if  false  in  a 
materia]  part,  will  defeat  recovery  on  the  bond 
for  tlie  delinquency  of  such  employs. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  {  657;    Dec  Dig.  |  285.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Douglas  Conn- 
tj;  Redick,  Judge. 

Action  by  tlie  Sunderland  Roofing  ft  Sap- 
ply  Company  against  tlie  United  States  Fidel- 
ity &  Guaranty  Company.  Judgment  for  de- 
fendant, and  piaintlil  appeals.    Affirmed. 

Baldrldge  ft  De  Bord,  for  appellant  Mc- 
Gilton  ft  Gaines,  for  appellee. 

ROOT,  J.  This  Is  an  action  to  recover 
on  a  fidelity  bond  and  a  renewal  thereof. 
The  district  court  directed  the  Jury  to  find 
fbr  defendant,  and  plaintiff  appeals  from 
the  Judgment  rendered  upon  their  verdict 

L  One  Snyder  In  April,  1904,  bad  been  in 
plaintiff's  employ  for  a  year  and  two  months 
88  bookkeeper  and  cashier.  Defendant  had 
guaranteed  Snyder's  '  financial  fidelity  to 
plaintiff  for  the  year  ending  April  1,  1904. 
April  25,  1904,  Snyder  applied  to  defendant 
for  another  bond  for  the  benefit  of  his  em- 
ployer for  the  year  ending  May  1,  1905,  and 
sent  with  his  application  plainturs  certifi- 
cate, stating,  among  other  things,  that  bis 
accounts  were  audited  April  23d,  and  were 
correct  in  every  particular.  Defendant  desir- 
ed further  Information,  and  sent  plaintiff  a 
list  of  printed  questions,  which  were  answer- 
ed, on  the  same  Instrument.  Thereupon  the 
bond  first  described  in  the  petition  was  ex- 
ecuted. In  answer  to  said  questions  plaintiff 
by  its  secretary  stated  that  Snyder  was  Its 
cashier;  that  be  handled  incoming  money 
for  it  and  collected  In  the  city  (Omaha);  that 
he  would  not  be  authorized  to  pay  out  cash 
in  his  custody  in  any  amounts  on  plaintifTs 
account ;  and  that  he  accounted  to  the  secre- 
tary of  plaintiff  daily  for  funds  and  securi- 
ties. The  following  questions  and  answers 
also  appear  in  the  statement  last  referred  to: 
"9,Q.  Is  he  required  to  make  deposits  in 
bank.  If  so,  how  often?  A.  No.  13,  Q.  When 
were  his  accounts  last  examined?  A.  23d. 
14,  Q.  Were  they  at  that  time  In  every  re- 
spect correct,  and  proper  securities  and  funds 
on  band  to  balance?  A.  Yes.  15,  Q.  Is  there 
now  or  baa  there  been  any  shortage  due  you 

*rsr  atlMr  cases 


by  applicant?  A.  No.  16,  Q.  Is  he  now  in 
debt  to  you?  A.  No."  Plaintiff  was  inform- 
ed by  defendant  that  Its  answers  to  said 
questions  would  be  taken  as  the  basis  of  the 
bond  if  issued,  and  as  conditions  precedent 
for  said  undertaking  and  any  renewal  there- 
of. The  bond  recites  that  It  is  issued  in 
consideration  of  the  premium  paid,  and  upon 
the  faith  of  said  statements,  which  plaintiff 
warrants  to  be  true,  and  as  a  condition  prece- 
dent to  the  employer's  right  to  recover  upon 
the  bond;  that,  if  said  written  statement 
is  in  any  respect  untrue,  the  bond  shall  be 
void.  Defendant  alleges  that  the  statements 
made  in  the  certificate  sent  with  Snyder's 
application  were  each  and  all  tmtrue,  and 
that  the  foregoing  answers  were  each  false 
and  untrue,  for  that  at  the  time  said  state- 
ment was  made  and  answers  were  given 
Snyder  was  short  $100  in  his  accounts,  which 
fact  an  examination  of  plaintifTs  books  would 
have  disclosed.  The  evidence  indicates  that 
Snyder's  books  and  accounts  were  correct 
and  his  conduct  honest  up  to  the  month  of 
April,  1904.  On  the  15th  day  of  that  month 
he  falsely  increased  the  footing  of  accounts, 
payable  In  the  cash  book,  $100,  and  failed 
to  account  for  that  sum;  that  subsequent  to 
May  1,  1904,  Snyder  embezzled  continuously 
from  plaintiff  during  that  and  the  following 
year,  and  by  false  entries  in  the  books  under 
his  control,  by  padded  pay  rolls  and  other 
devices,  kept  the  general  ledger  In  balance  so 
that  the  monthly  trial  balances  submitted  to 
his  employers  indicated  a  correct  course  of 
business,  and  that  he  had  accounted  for  the 
funds  In  his  possession  or  under  his  control. 
It  seems  to  have  been  the  course  of  business 
In  plaintiff's  establishment  for  Snyder  to  sub- 
mit to  the  secretary  and  president  trial  bal- 
ances about  the  middle  of  one  month,  to 
exhibit  the  condition  of  the  corporation  at 
the  close  of  the  preceding  month's  business. 
Accompanying  this  trial  balance  were  sheets 
containing  an  analysis  of  plaintiff's  accounts, 
with  individual  customers  which  indicated 
the  name  of  every  purchaser  who  was  in- 
debted to  plaintiff,  and,  in  a  general  way,  the 
age  and  amount  of  each  account.  The  secre- 
tary and  general  manager  would  examine 
those  statements  and  the  general  trial  bal- 
ance. Under  the  circumstances,  it  was  Im- 
possible for  them  during  the  middle  of  the 
month  to  count  the  cash  that  was  on  hand 
the  last  of  the  preceding  month,  and  the  trial 
balance  could  only  be  verified  In  the  improb- 
able event  that  all  cash  received  on  the  last 
day  of  the  month  had  been  deposited  in  the 
bank  that  same  day.  The  transcripts  sub- 
mitted showing  the  condition  of  the  plaintiff's 
affairs  at  the  close  of  business  March  31, 
1904,  were  thus  examined  April  23,  1904. 
But  the  accounts  kept  by  Snyder  between 
those  days  were  not  examined  until  sub- 
sequent to  the  execution  of  the  bond  in  suit 
It  Is  argued  by  plaintiff  that  the  thirteenth 
interrogatory  did  not  call  for  an  examlna- 

SM  iaoM  topie  and  section  NUMBER  In  Dec.  A  Am.  Dlga.  U07  to  date,  *  B«n>rtar  Indezu 

Digitized  by  VjOOQIC 


26 


122  NORTHWESTERN  REPORTER. 


(Neb. 


tlon  of  Snyder's  books,  bat  of  bis  accounts; 
that  plaintiff's  officer  was  not  asked  the  last 
date  in  the  accounts  examined;  and  that 
Edgerly,  the  secretary,  did  not  know  ov  be- 
lieve that  Snyder  was  dishonest  or  that  his 
accounts  were  incorrect;  that  the  statements 
were  representations  merely,  were  believed 
to  be  true,  were  not  relied  upon  by  defendant, 
and  that  the  Jury,  and  not  the  court,  should 
determine  the  good  faith  of  the  secretary,  the 
materiality  of  the  statements  made,  and 
whether  or  not  defendant  relied  thereon.  If 
the  thirteenth  Interrogatory  stood  alone  and 
was  considered  without  reference  to  the  pur- 
pose for  which  the  Information  was  sought. 
It  might  be  construed  as  plaintiff  argues; 
but,  when  contemplated  in  connection  with 
the  fourteenth  interrogatory  and  with  rela- 
tion to  said  purpose,  it  cannot  in  reason  be 
thus  Interpreted.  The  fourteenth  Interroga- 
tory not  only  asks  if  the  accounts  were  cor- 
rect, but  whether  at  "that  time"  there  were 
securities  and  funds  on  hand  to  balance. 
"That  time"  is  the  date  the  examination  was 
made.  The  funds  and  securities  on  band  one 
day  would  rarely,  if  ever,  balance  the  ac- 
counts and  books  of  any  preceding  day.  Nor 
could  an  auditor  ascertain  by  Inspection  and 
computation  on  the  23d  day  of  a  month  the 
funds  and  securities  that  were  on  hand  the 
last  day  of  the  preceding  month.  Further- 
more, If  the  accounts  were  not  to  be  inspect- 
ed down  to  the  date  of  the  examination, 
there  Is  nothing  In  the  language  employed 
to  indicate  that  any  particular  antecedent 
day  should  be  selected  as  the  time  for  strik- 
ing a  balance  and  inspecting  the  cash  and 
securities  on  hands.  However  much  coun- 
sel may  disagree  upon  the  thought  embodied 
in  the  questions  submitted,  we  do  not  think 
it  possible  for  any  unprejudiced  business  man 
to  read  them  and  come  to  any  conclusion  oth- 
er than  that  they  could  not  be  answered 
truthfully,  or  so  as  to  give  the  Information 
requested,  unless  the  accounts  were  examined 
down  to  the  date  of  inspection  and  the  cash 
was  counted  upon  that  day.  This  was  not 
done  by  the  secretary,  nor  by  any  one  else 
for  the  company.  The  thirteenth  and  four- 
teenth questions  do  not  call  for  opinions  only, 
at  least  such  is  not  the  case  so  far  as  .the 
date  of  the  examinatiou  of  the  accounts  and 
cash  are  concerned.  It  may  be  said  that  the 
$100  defalcation  would  not  have  been  dis- 
covered on  the  23d'  if  the  cash  had  been 
counted  and  the  books  examined  that  day. 
This  we  do  not  know,  nor  can  any  individual 
other  than  the  absconding  cashier  inform  us. 
He  may  have  been  short  on  the  23d  more 
than  the  |100  embezzled  on  the  15th.  It  is 
true  that  Rose,  the  expert,  testified  that  there 
were  no  Irregularities  in  the  accounts  be- 
tween the  15th  and  23d  of  April,  but  he  could 
only  follow  the  entries  in  the  books,  and, 
without  knowledge  of  the  actual  cash  on 
hand.  It  would  be  necessary  to  accept  those 
entries  as  reflecting  actual  conditions.  It  Is 
not  Improbable  that  the  false  entries  made 


covered  anterior  pecnlatlona  that  bad  ag- 
gregated an  amount  which  Snyder  thought 
unsafe  to  carry  on  his  books  as  cash  in  tbe 
drawer.  In  any  event,  defendant  was  en- 
titled to  have  an  effort  made  whether  It  was 
successful  or  not  to  have  the  accounts  ex- 
amined down  to  the  date  certified  and  tbe 
cash  counted  on  that  day.  It  Is  doubtless 
true  that  the  rules  applicable  to  the  interpre- 
tation of  life  or  fire  insurance  policies  axe 
pertinent  In  actions  upon  fidelity  bonds,  and 
that,  if  such  an  undertaking  is  reasonably 
susceptible  of  two  constructions,  the  one  most 
favorable  to  tbe  assured  will  be  adopted, 
provided  that  it  is  consistent  with  the  objects 
for  which  the  bond  was  given.  American 
Surety  Company  v.  Pauly,  170  U.  S.  133,  144, 
18  Sup.  Ct.  552,  42  L.  Ed.  977;  American 
Bonding  &  Trust  Ck>.  T.  Burke,  86  Colo.  49, 
85  Pac.  692.  In  the  instant  case  the  parties 
Interested  have  specifically  agreed  that  tbe 
statements  referred  to  shall  become  a  part 
of  their  contract,  the  basis  of  the  bond,  and  a 
condition  precedent  to  a  recovery  thereon. 
With  but  few  exceptions  in  actions  upon 
fidelity  bonds,  such  statements  are  held  to  be 
warranties  upon  the  truth  whereof  depends 
the  right  to  recover.  Rice  v.  Fidelity  &  De- 
posit Co.  of  Md.,  103  Fed.  427,  43  C.  C.  A. 
270;  Carstalrs  v.  American  B.  &  T.  Co.,  116 
Fed.  449,  54  C.  C.  A.  85;  Warren  D.  B.  v. 
Fidelity  &  Deposit  Co.  of  Md.,  116  Ky.  38, 
74  S.  W.  1111;  American  B.  &  T.  Co.  v. 
Burke,  36  Colo.  49,  85  Pac.  692;  Model  Mill 
Co.  V.  Fidelity  &  Deposit  Co.  of  Md.,  1  Tenn. 
Ch.  App.  3C5;  Livingston  &  Taft  v.  Fidelity 
&  Deposit  Co.  of  Md.,  76  Ohio.  St  253,  81 
N.  B.  330.  Counsel,  however,  assert  that  this 
court  is  committed  to  a  contrary  rule.  iBtna 
Ins.  Co.  V.  Simmons,  49  Neb.  811,  69  N.  W. 
125;  Kettenbach  v.  Omaha  Life  Ins.  Co., 
49  Neb.  842,  69  N.  W.  135;  iEtna  Life  Ins. 
Co.  V.  Rehlaender,  68  Neb.  284,  94  N.  W. 
129.  We  are  satisfied  with  the  principles  an- 
nounced in  those  cases  as  applied  to  the  facts 
therein  considered. 

In  ^tna  Ins.  Co.  v.  Simmons,  supra.  It  was 
claimed  that  tbe  assured  in  his  application 
for  fire  Insurance  had  overvalued  the  proper- 
ty thereafter  insured.  In  Kettenbach  v.  Oma- 
ha Life  Ins.  Co.  and  ^tna  Life  Ins.  Co.  v. 
Rehlaender,  supra,  the  court  dealt  with  state- 
ments made  by  the  assured  in  bis  application 
for  insurance  with  reference  to  his  health. 
From  the  very  nature  of  things  the  Insur- 
ance company  In  all  of  those  cases  must  have 
known  that  the  applicant  was  giving  them 
tbe  result  of  bis  judgment,  whereas  in  the 
Instant  one  such  is  not  tbe  case  concernlug 
the  date  upon  which  and  down  to  which  tbe 
cashier's  accounts  were  claimed  to  have  been 
examined  and  found  to  be  correct.  Nor  is  It 
reasonable  to  bold  that  defendant  did  not 
rely  upon  the  information  given,  or  that 
it  was  not  an  Inducement  for  the  execution 
of  the  bond.  Symington,  defendant's  secre- 
tary, superintendent  of  its  fidelity  depart- 
ment, and  the  individual  who  conducted  the 


Digitized  by  VjOOQ  l€ 


Xdn.) 


MoELROT  T.  METROPOLITAN  LIFE  INS.  OO. 


27 


correspondence  with  plaintiff  ooncemlng  the 
bond  In  suit,  teetlfled  that  tbej  relied  partlcu- 
Urly  upon  the  statement  that  Snyder's  ac- 
coonts  were  examined  and  found  to  be  cor- 
rect on  the  23d  of  April,  1904.  There  is 
nothing  in  the  record  that  directly  or  by  In- 
ference contradicts  this  testimony,  and,  If 
the  Jury  had  been  requested  to  find  whether 
defendant  relied  upon  said  answers  and  If  it 
had  found  for  plaintiff,  the  evldenoe  would 
not  have  supiported  the  yerdict.  Counsel  ar- 
gne  that  Symington  did  not  have  authority  to 
pass  upon  the  sufficiency  of  the  showing 
made  by  plaintiff  and  refer  to  section  4,  art 
9,  of  defendant's  by-laws.  The  by-law  Is  a 
grant  of  power  to  certain  executive  officers, 
and  does  not  prohibit  the  superintendent  of 
Its  fidelity  department  doing  just  what  Sym- 
ington did  In  the  Instant  case.  So  far  as  the 
record  advises  us,  the  bond  In  suit  was  Is- 
sued according  to  the  usual  course  of  defend- 
ant's business. 

2.  Concerning  the  renewal  of  the  bond  for 
one  year  from  May  1,  1905,  It  Is  sufficient  to 
say  that  It  was  agreed  between  the  parties 
that  the  statement  made  in  April,  1904,  should 
control,  not  only  the  bond  that  was  Issued 
May  1, 1904,  but  any  renewal  thereof.  Iirad- 
diUon,  plaintiff  In  April,  1905.  certified  that 
the  boolts  and  accounts  of  Snyder  had  t)een 
examined  by  it  on  that  day  and  found  to 
be  correct  in  every  respect  The  same  meth- 
od was  employed  in  1905  as  in  1904  in  In- 
specting the  cashier's  accounts.  The  books 
were  not  examined,  not  even  the  footings  of 
(be  respective  accounts;  but  the  analysis  of 
unpaid  accounts  was  Inspected  to  ascertain 
the  condition  of  the  credits  due  the  com- 
pany, and  the  trial  balance  from  the  general 
ledger  was  examined  to  ascertain  whether 
the  booivs  were  in  balance.  The  actual  cash 
on  band  was  never  ascertained  and  checl^ed 
against  the  transcript  submitted  by  the  cash- 
ier. The  items  in  the  pay  roll  were  never 
footed  and  compared  with  the  check  drawn 
by  Snyder  to  pay  the  employes  for  that 
month,  nor  were  the  vouchers  or  sale  tickets 
ever  compared  with  the  record  made  by  him. 
Snyder  deposited  plaintiff's  cash  and  dis- 
tarsed  the  money  paid  out  for  employes' 
wages,  so  that  his  opportunities  were  ample 
for  the  fraud  and  deception  practiced  by  him. 
Plaintiff  had  represented  to  defendant  that 
its  cashier  was  not  and  would  not  be  au- 
thorized to  perform  either  of  said  functions. 
Under  the  circumstances,  plaintiff  must  have 
known  that  It  bad  not  taken  any  precaution 
whatever  to  protect  itself  against  the  em- 
bezzlement of  its  funds  by  Snyder;  that  the 
cashier's  books  and  accounts  were  examined 
by  him  and  not  it ;  and  that  It  was  not  giving 
defendant  any  substantial  Information  con- 
cerning the  state  of  Snyder's  accounts. 

We  do  not  approve  technical  defenses  in 
cases  like  the  one  at  bar,  but  common  honesty 


dictates  that  the  assured  should  be  neither 
untruthful  nor  negligent  In  answering  ques- 
tions propounded  to  It  for  the  purpose  of  se- 
curing material  information  concerning  the 
risk  that  a  bonding  company  is  asked  to  as- 
sume. If  the  assured  is  either  untruthful 
or  negligent  and  misleads  the  bonding  com- 
pany, the  employer,  and  not  the  surety  com- 
pany, should  stand  the  loss  made  possible 
thereby.  We  have  not  examined  the  defense 
argued  in  defendant's  brief  that  Snyder's  du- 
ties were  increased,  and  that  he  was  perntit- 
ted  to  pay  out  plaintiffs  money  and  deposit 
its  cash  contrary  to  the  statement  made  by 
plaintiff,  because  that  defense  was  not  specif- 
ically pleaded. 

We  do  not  find  any  error  prejudicial  to 
plaintiff  In  the  record,  and  the  Judgment  of 
the  district  court  Is  affirmed. 

BEESE,  C.  J.,  absent 


Mcelroy  v.  metropolitan  life  ins. 

CO.    (No.  15,609.) 
(Supreme  Court  of  Nebraska.    June  25,  1909.) 

1.  insdbanck  ({  147*)— c0ntra01>— place  or 
Contract. 

Where  the  parties  to  an  insurance  contract 
are  in  different  jurisdictions,  the  place  where 
the  last  act  is  done  which  is  necessary  to  the 
validity  of  the  contract  is  the  place  where  the 
contract  is  entered  into. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent.  Dig.  i  293 ;   Dec.  Dig.  {  147.»] 

2.  INSUBANCE    (§    147*)— FOREION    INSUBANO 

Company  — Laws  of  Fobeiqn  State  — Ef- 
fect. 

Insurance  business  transacted  in  this  state 
by  New  York  insurance  companies  without  any 
provision  that  the  New  York  laws  shall  govern 
18  not  subject  to  the  provision  of  the  New  York 
statute  requiring  a  notice  to  be  mailed  to  the 
policy  holder  in  that  state  as  a  condition  of  for- 
feiture for  nonpayment  of  premiums. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent.  Dig.  {  293;    Dec.  Dig.  I  147.*] 

3.  INSCRANCE   (I   376*)— Pbemtitm— Time  fob 
Payment— Extension  by  Agent. 

The  agent  of  an  insurance  company  cannot 
by  oral  contract  with  the  assured  waive  the  ex- 
press terms  of  the  policy  and  extend  tlie  time 
lor  a  premium  when  the  policy  provides  that 
none  of  its  terms  can  l>e  varied  nor  modified  nor 
any  forfeiture  waived  nor  premiums  in  arrears 
received,  except  by  agreement  in  writing  signed 
by  the  president,  vice  president,  secretary,  or 
assistant  secretary, 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent.  Dig.  {{  952-955;   Dec.  Dig.  f  376.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Cass  County; 
Jessen,  Judge. 

Action  by  Maggie  McElroy  against  the 
Metropolitan  Life  Insurance  Company.  Judg- 
ment for  defendant,  and  plaintiff  appeals. 
Affirmed. 

A.  N.  Sullivan,  for  appellant  J.  B.  Strode, 
for  appellee. 


*For  other  eases  t»»  nam*  topic  and  section  NUMBER  Is  Dec.  A  Am.  Digs.  UU7  to  dat«,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


28 


122  NORTHWESTERN  REPORTER. 


(Neb. 


CAIiE^NS,  0.  This  was  an  action  upon  a 
policy  of  life  insurance  Issued  by  tbe  de- 
fendant apon  tbe  life  of  one  Jnlla  McElroy, 
In  wbicb  policy  tbe  plalntlfT  was  named  as 
beneficiary.  The  defense  was  that  the  policy 
bad  been  forfeited  for  nonpayment  of  a  semi- 
annual premium  which  fell'  due  December 
28,  1906,  and  remained  unpaid  at  the  time 
of  the  death  of  tbe  assured,  which  took  place 
February  27,  1907.  Tbere  was  a  trial  to  a 
Jury,  upon  which  the  court  directed  a  verdict 
for  the  defendant,  and,  from  a  judgment  en- 
tered thereon,  the  plalntlfT  appeals. 

1.  It  is  conceded  that,  if  the  contract  Is  to 
be  considered  as  made  in  and  construed  by 
tbe  laws  of  this  state,  tbe  policy  was  by  Its 
express  terms  forfeited  by  the  failure  to 
pay  tbe  premium  In  question,  unless  the  time 
of  such  payment  was  extended  or  such  for- 
feiture waived.  The  defendant  is  a  New 
Xork  corporation,  and  there  was  in  force  in 
that  state  at  the  time  of  the  issuance  of  tbe 
'  policy  in  question  a  statute  regulating  the 
business  of  life  insurance,  which,  amongst 
other  things,  provided  that:  "No  life  insure 
ance  company  doing  business  In  this  state 
shall  within  one  year  after  tbe  default  in 
payment  of  any  premium,  installment  or  In- 
terest declare  forfeited  or  lapsed,  any  policy 
hereafter  Issued  •  •  *  unless  a  written 
or  printed  notice  stating  the  amount  of  such 
premium  •  •  •  due  on  such  policy,  the 
place  where  it  shall  be  paid,  and  tbe  person 
to  whom  tbe  same  Is  payable,  shall  have 
been  duly  addressed  and  mailed  to  person 
whose  life  is  Insured  *  *  •  at  his  or  her 
last  Icnown  post-oflSce  address  In  this  state. 

•  •  •  The  notice  shall  also  state  that  un- 
less such  premium    •    *     •    shall  be  paid 

•  *  •  by  or  before  the  day  it  falls  due, 
the  policy  and  all  payments  thereon  will  be- 
come forfeited  and  void."  There  was  an  at- 
tempt to  give  the  notice  required  by  this 
statute,  but  it  is  claimed  it  was  so  Imper- 
fect as  not  to  amount  to  a  compliance  wltb 
the  above-quoted  provisions.  The  question 
is  therefore  presented  whether  the  rights  of 
the  parties  under  the  policy  sued  on  are  to 
be  determined  by  the  laws  of  this  state  or 
those  of  New  York.  It  is  a  general  princi- 
ple that,  if  tbe  parties  to  ah  Insurance  con- 
tract are  in  different  jurisdictions,  the  place 
where  tbe  last  act  is  done  which  is  neces- 
sary to  give  validity  to  tbe  contract  la  the 
place  where  tbe  contract  Is  entered  into. 
Antes  V.  State  Ins.  Co.,  61  Neb.  55,  84  N.  W. 
412;  Bascom  v.  Zedlker,  48  Neb.  380,  67 
N.  W.  148;  Mutual  Life  Ins.  Co.  v.  Cohen, 
179  D.  S.  282,  21  Sup.  Ct  106,  45  L.  Ed.  181. 
In  the  body  of  tbe  policy  sued  on  It  is  pro- 
vided that  no  obligation  Is  assumed  by  the 
company  until  tbe  first  premium  has  been 
paid,  nor  unless  upon  tbe  delivery  of  the 
policy  tbe  assured  is  living  and  in  sound 
health,  and  in  the  application  which  is  a  part 
of  tbe  policy  there  Is  inserted  the  stipulation: 
"I  further  agree  that  tbe  company  shall  In- 
cur no  liability  under  this  appllcatioc  until 


It  has  been  received,  approved,  and  the  poli- 
cy issued  and  delivered,  and  tbe  premium 
has  actually  been  paid  to  and  accepted  by 
the  company  during'  my  lifetime  and  while 
I  am  in  good  health."  In  this  case  tbe  poli- 
cy was  sent  from  the  company's  home  office 
in  New  York  to  its  agent  In  Nebraska,  who 
delivered  the  same  to  the  assured  upon  the 
payment  by  her  of  the  first  premium  at 
Plattsmouth,  Neb.,  on  the  28th  day  of  Jnly. 
1905.  Applying  tbe  principle  above  quoted 
to  these  facts,  the  contract  of  Insurance  In 
question  must  be  considered  a  Nebraska,  and 
not  a  New  York,  contract. 

2.  The  effect  of  this  statute  upon  policies 
of  insurance  issued  by  New  York  companies 
upon  the  lives  of  i>erson8  residing  in  other 
jurisdictions  has  been  the  subject  of  con- 
sideration in  the  courts  of  California,  Wash- 
ington, Texas,  and  the  SuprMue  Court  of  the 
United  States.  Harrlgan  v.  Home  'Life  Ins. 
Co.,  128  Cal.  531,  58  Pac.  180;  Orlesemer 
V.  Mutual  Life  Ins.  Co.,  10  Wash.  202,  38 
Pac.  1031;  Metropolitan  Life  Ins.  Co.  v. 
Bradley,  98  Tex.  230,  82  S.  W.  1031,  68  U 
R.  A.  509;  Mutual  Life  Ins.  Co.  v.  Cohen, 
179  U.  8.  262,  21  Sup.  Ct  106,  45  L.  Ed.  181 ; 
Mutual  Life  Ins.  Co.  v.  Hill,  193  U.  S.  551, 
24  Sup.  Ct  538,  48  L.  Ed.  788.  In  the  Cali- 
fornia case  above  referred  to,  which  was  de- 
cided in  August  1899,  it  was  held  that  the 
provision  of  the  New  York  statute  prevented 
tbe  forfeiture  of  a  policy  issued  under  such 
circumstances  without  the  notice  therein  pro- 
vided for.  In  each  of  the  other  jurisdictions 
an  opposite  conclusion  was  reached.  In 
Mutual  Life  Ins.  Co.  v.  Cohen,  supra,  there 
was  a  very  full  consideration  of  the  subject 
in  an  opinion  by  Brewer,  J.,  with  the  rea- 
soning of  which  we  are  satisfied.  It  does 
not  appear  that  this  question  has  been  before 
tbe  Court  of  Appeals  of  New  York ;  but  the 
Supreme  Court  has  lately  had  it  under  con- 
sideration in  a  case  where  a  policy  was  is- 
sued and  delivered  in  the  state  of  New  York 
to  a  person  who  resided  in  Chicago,  and  bad 
no  post-office  address  in  New  York.  Napier 
V.  Bankers'  Life  Ins.  Co.,  51  Misc.  Rep.  284, 
100  N.  Y.  Supp.  1075.  The  conclusion  there 
arrived  at  was  that  tbe  provisions  of  the 
statute  only  applied  to  policies  issued  to  per- 
sons residing  and  having  a  post-office  ad- 
dress In  the  state  of  New  York.  Attention 
Is  directed  to  tbe  use  of  the  words  "in  this 
state,"  which  it  appears  were  recently  added 
to  the  statute  by  amendment  and  It  Is  urged 
that  tbe  use  of  these  words  tends  to  show 
that  the  intention  of  the  legislative  act  was 
to  confine  the  provisions  of  this  section  to 
policies  Issued  within  that  state.  We  are 
satisfied  that  the  forfeiture  must  be  governed 
by  the  law  as  it  exists  in  Nebraska,  and, 
while  it  would  be  well  within  the  jurisdic- 
tion of  the  lawmaking  power  of  this  state  to 
enact  a  similar  statute  concerning  policies 
upon  the  lives  of  tbe  residents  thereof,  we 
must  hold  that  the  failure  to  pay  the  semi- 


Digitized  by  VjOOQ  l€ 


Nd)u) 


UNION  PAO.  R.  CO.  ▼.  COLFAX  COUNTY. 


29 


annual  premium  worked  In  accord  with  the 
terms  of  the  policy  a  forfeiture  of  all  claims 
against  the  company. 

3.  It  Is  contended  by  the  plaintiff  that  the 
evidence  established  a  course  of  dealing  be- 
tween the  agents  of  the  company  and  the  as- 
sured which  Justified  the  assured  In  waiting 
until  the  agent  called  at  the  bouse  to  collect 
tbe  premium.  It  appears  that  the  company 
Issued  in  this  locality  a  kind  of  policy  called 
tbe  Industrial  In  amounts  of  $50  to  $200,  up- 
on which  the  premiums  were  paid  by  week- 
ly Installments.  By  the  express  terms  of 
these  Industrial  policies  the  agents  of  the 
company  were  required  to  go  to  the  home  of 
tbe  assured  and  collect  tbe  premium;  and 
tbe  erldence  established  that  tbe  custom  was 
not  to  strictly  enforce  the  rule  requiring  the 
premiums  the  day  they  became  due,  the  as- 
sistant superintendent  having  authority  to 
extend  the  time  provided  that  he  saw  tbe 
assured  personally  and  found  him  in  good 
health.  No  such  custom  nor  practice  was 
established  In  reference  to  tbe  class  of  poli- 
cies sued  upon,  and  the  policy  under  consid- 
eration contained  tbe  provision  that  none  of 
its  terms  could  be  varied  or  modltled  nor 
any  forfeiture  waived  or  premiums  in  ar- 
rears received,  except  by  agreement  In  writ- 
ing signed  by  either  tbe  president,  vice  presi- 
dent, secretary,  or  assistant  secretary,  whose 
authority  for  that  purpose  was  not  to  be 
delegated.    The  evidence  shows  that  all  the 

I  premlnms  paid  on  the  policy  were  paid  to 
agents  of  tbe  defendant  by  Ei:ank  McElroy, 
tbe  father  of  the  assured,  at  his  place  of 

I  bnslness  in  Plattsmoutb.  Only  two  premiums 
were  ever  paid,  and  one  of  these  was  that 
paid  at  the  time  the  policy  was  delivered. 
There  was  no  promise  on  the  part  of  tbe 
agent  to  waive  the  forfeiture  or  postpone  the 
paj-ment,  unless  the  same  might  be  Inferred 
from  the  testimony  of  Frank  McElroy,  which 
shows  that  in  tbe  latter  part  of  January  or 
1st  of  February  he  had  a  conversation  with 
Mr.  Davies,  tbe  agent  of  the  defendant,  in 
which  be  said,  when  asked  what  Mr.  Davies' 
exact  words  were:  "The  way  I  understood 
it  when  I  spoke  to  blm  about  it,  be  said  It 
would  be  all  right  to  keep  the  other  money 
and  give  It  to  blm  altogether.  Afterwards  be 
came  to  tbe  shop,  and  said  he  didn't  know 
about  that,  and  be  asked  me  for  my  daugh- 
ter's address,  and  I  told  blm  I  didn't  have 
It  I  told  blm  then  if  be  insisted  on  tbe  mon- 
ey to  go  up  and  see  my  wife,  as  it  was  no 
benefit  to  me  anyhow.  She  had  money."  It 
appears  that  it  was  tbe  practice  of  the  com- 
pany to  send  receipts  to  its  local  agents  be- 
fore a  premium  became  due,  and  that  tbe 
agent  was  authorized  to  deliver  such  receipt 
upon  payment  of  the  premium  at  any  time 
within  30  days  of  the  date  upon  which  the 
mine  bad  become  due.  In  case  of  nonpay- 
ment of  the  premium  within  that  period, 
tbe  agott  was  required  to  immediately  re- 


turn tbe  receipt  to  tbe  borne  office,  and  was 
without  any  authority  to  accept  the  premium 
thereafter  without  further  instructions.  The 
date  of  the  above  conversation  Is  not  very 
definite,  but  we  will  assume  that  It  was  be- 
fore the  expiration  of  the  SO-day  period. 
The  evidence  does  not  seem  to  us  sufficient 
to  sustain  a  finding  that  tbe  agent  did  agree 
to  give  time  beyond  the  expiration  of  this 
period  for  the  payment  of  the  premium. 
Whether  he  did  or  not,  it  is  clear  that  he 
had  no  authority  to  make  any  such  agree- 
ment We  think  tbe  restriction  upon  tbe 
power  of  agents  to  waive  the  forfeiture  of 
the  policy  is  binding.  Hartford  Fire  Ins. 
Co.  V.  Landfare,  63  Neb.  559,  88  N.  W.  779. 
Tbe  witness  McE3roy  relates  another  con- 
versation with  the  agent  Mr.  Davies  as  fol- 
lows :  "The  next  time  I  seen  him  was  about 
the  18tb  or  19th.  That  was  after  getting  a 
dispatch  from  Chicago  calling  me  there  on 
account  of  my  daughter's  sickness.  I  met 
blm  there,  and,  'Now,'  I  says,  'if  yon  have 
got  that  receipt,  I  have  got  the  money  In  my 
pocket,'  and  he  said  'No,'  but  he  would  get 
my  receipt  the  next  week."  This  conversa- 
tion was  after  tbe  agent  bad  returned  to  tbe 
home  office  the  receipt,  at  the  end  of  the  pe- 
riod of  30  days,  alid  when  he  neither  bad 
nor  pretended  to  have  authority  to  accept 
tbe  payment  of  the  premium.  The  offer  of 
McElroy  to  pay  at  this  time  could  have  no 
effect  unless  the  time  of  payment  of  the 
premium  had  been  extended  by  the  former 
conversation.  As  we  have  seen,  tbe  agent 
had  no  authority  to  make  that  extension. 
The  district  court  did  not  therefore  err  in 
refusing  to  submit  this  question  to  the  jury 
and  In  directing  a  verdict  for  the  defendant. 
We  therefore  recommend  that  tbe  Judg- 
ment of  tbe  district  court  be  affirmed. 

DUFFIB,  EPPERSON,  and  GOOD,  CO., 
concur. 

PER  CURIAM.  For  tbe  reasons  stated  In 
the  foregoing  opinion,  the  judgment  of  the 
district  court  Is  affirmed. 


UNION  PAC.  R.  CO.  V.  COLFAX  COUNTY. 

(No.  15,693.) 
(Supreme  Court,  of  Nebraska.    June  -25,  1909.) 

1.  Appeai,  ano  Ebbob  (J  712*)— Review— In- 
BUFFiciENT  Record. 

Where  tbe  district  court  quashed  a  portion 
of  a  bill  of  exceptions,  and  there  is  notning  in 
the  record  indicating  which  portion  was  quash- 
ed and  which  was  considered,  this  court,  upon 
objection  being  made,  will  not  consider  the  evi- 
dence. 

[EM.  Note.— For  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  i  712.*] 

2.  Appeal  and  Ebbob  ({  618*)— Bux  of  Ex- 
ceptions—Authentication. 

A  bill  of  exceptions  of  proceedings  before 
a  county  Iward  not  identified  either  by  the  cei^ 
tlficate  of  the  county  clerk  or  of  the  clerk  of  the 


•For  other  ca«M  lea  asme  topic  and  laotion  NUMBBR  la  Deo.  *  Am.  Digs.  U07  to  data,  it  Reporter  Indexei 


Digitized  by  VjOOQ  l€ 


30 


122  NORTHWESTERN  REPORTER. 


CNeb^ 


district  court  as  belne  part  of  the  record  is  not 
sufficiently  authenticated. 

[M.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  H  2702-2707;  Dec.  Dig.  f 
613.*] 

3.  Drains  (§  82*)— AssESSiHiNTft— Review. 

When  it  is  sought  to  review  an  apportion- 
ment and  assessment  in  a  drainage  proceeding, 
that  portion  of  the  report  and  apportionment 
made  by  the  engineer  and  county  board  which 
purports  to  charge  the  property  ot  the  appel- 
lant must  appear  in  the  record. 

[Ed.  Note.— For  other  cases,  see  Drains,  Dec. 
Dig.  i  82.»] 

4.  DbaINS   (8    82*)— ASSESSICENTB  —  Appkai- — 

Record. 

When  no  final  order  or  judgment  affecting 
appellant's  property  appears  in  the  record,  the 
appeal  will  be  dismissed. 

[Ed.  Note.— For  other  cases,  see  Drains,  Dec 
Dig.  i  82.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Coart,  Colfax  County. 

Action  by  .the  Union  Pacific  Railroad  Com- 
pany against  the  County  of  Colfax.  Judg- 
ment for  defendant,  and  plaintiff  appeals. 
Dismissed. 

Edsbn  Rich  and  C.  J.  Phelps,  for  appellant 
B.  F.  Farrell  and  J.  A.  Grimlson,  for  appel- 
lee. 

LETTON,  J.  This  is  an  appeal  by  the 
Union  Pacific  Railroad  Company  from  a 
judgment  of  the  district  court  affirming  the 
proceedings  of  the  board  of  county  commis- 
sioners of  Colfax  county  in  establishing  a 
drainage  ditch  In  that  county.  At  the  thresh- 
old of  the  case,  it  is  necessary  to  consider 
objections  made  by  the  appellee  to  its  con- 
sideration upon  the  record  as  presented  to 
this  court.  The  record  shows  that  a  mo- 
tion to  quash  the  bill  of  exceptions  was 
made  in  the  district  court,  and  that  this  mo- 
tion was  sustained  "so  far  as  relates  to  the 
evidence  taken  in  the  month  of  January, 
1907,"  but  "the  court  overrules  the  rest  of 
the  said  motion  to  quash  the  bill  of  excep- 
tions." Following  the  certificate  of  the  clerk 
of  the  district  court  to  the  transcript  is  a 
mass  of  typewritten  matter  paged  from  1 
to  131,  together  with  a  map  or  tracing.  This 
is  headed:  "This  clause  is  the  bearing  of 
the  Union  Pacific  Railroad  Company  upon 
its  exceptions  to  the  apportionment  on  file 
and  made  by  the  surveyor."  No  certificate 
of  any  kind  is  to  be  found  at  the  end  of 
this  and  nothing  beyond  the  above  quotation 
to  show  where,  when,  or  in  what  proceed- 
ing It  was  taken.  It  does  not  even  show 
that  it  was  ever  filed  in  the  office  of  the 
clerk  of  the  district  court,  although  it  is 
bound  up  with  the  transcript.  Following 
this  again  are  111  pages  of  like  matter,  num- 
bered consecutively  from  1  to  111,  entitled: 
"Before  the  board  of  county  commissioners 
of  Colfax  county,  Nebraska.  In  the  matter 
of  the  exceptions  of  the  Union  Pacific  Rail- 
road Company  to  the  assessment  and  appor- 


tionment in  the  Payzant-HuglieB  drainage 
ditch.  Bill  of  exceptions."  At  the  end  of 
these  111  pages  are  two  certificates  by  a 
stenographer,  but  in  neither  certificate  is 
there  anything  to  show  when  this  testimony 
was  taken.  The  certificate  is  sworn  to  on 
the  13th  of  March,  1906.  A  certificate  fol- 
lows'signed  by  the  board  of  county  commis- 
sioners allowing  the  bill.  This  also  falls  to 
show  when  the  testimony  was  taken.  Bat 
there  is  nothing  to  show  how  far  this  cer- 
tificate reaches,  or  whether  it  belongs  to 
both  bundles  of  testimony  or  not.  There  is 
no  certificate  or  filing  mark  showing  that 
the  original  bill  of  exceptions  was  ever  filed 
with  the  clerk  of  the  district  court,  although 
there  is  a  certificate  Immediately  following 
the  transcript  and  preceding  these  papers 
that  "the  above  and  foregoing  is  a  true  and 
correct  copy  of  all  the  record,  Including  the 
final  judgment  and  the  bill  of  exceptions  al- 
lowed by  the  board  of  county  commissioners 
of  Colfax  county,  Nebraska,  in  an  action 
wherein  the  Union  Pacific  Railroad  Com- 
pany was  plaintiff  and  the  county  of  Colfax 
was  defendant  as  the  same  appears  from 
the  flies  and  record  in  the  office  of  the  clerk 
of  the  district  court"  This  is  not  sufficient 
identification.  As  we  have  seen,  the  district 
court  quashed  the  bill  of  exceptions  in  part 
and  sustained  it  In  part,  but  there  Is  abso- 
lutely nothing  on  the  face  of  this  record  in- 
dicating which  part  of  the  bill  of  excep- 
tions was  quashed  by  the  district  court  and 
which  was  allowed  to  stand.  The  whole 
matter  is  typewritten,  Including  signatures. 
In  the  absence  of  a  certificate  identifying 
the  original  bill  as  being  a  part  of  the  rec- 
ord In  the  office  of  the  county  clerk,  these 
papers  could  form  no  part  of  the  record  of 
the  county  board  and  of  the  transcript  to 
the  district  court  and,  in  the  absence  of  any 
certificate  from  the  clerk  of  the  district 
court  definitely  showing  what  portion  of  this 
testimony  was  before  that  court  and  con- 
sidered by  it,  it  Is  impossible  for  this  court 
to  review  its  findings.  Shaffer  t.  Vincent, 
63  Neb.  449,  73  N.  W.  932;  Romberg  v.  Fok- 
ken,  47  Neb.  199,  66  N.  W.  282;  Romberg  v. 
Hedlger,  47  Neb.  201,  66  N.  W.  283.  The 
papers  are  defective  both  as  to  proper  au- 
thentication and  as  to  proper  identification. 
We  must  therefore  disregard  the  purported 
bill  of  exceptions. 

2.  We  are  unable  to  find  in  the  record  the 
final  order  of  judgment  of  apportionment  of 
which  complaint  is  made.  Omitting  much 
redundant  and  Irrelevant  matter  which  has 
been  Improperly  included  In  the  transcript 
and  omitting  the  proceedings  from  the  filing 
of  the  petition  to  tbe  15th  of  January,  1906, 
It  Is  shown  that  on  that  day  the  appellant 
filed  objections  "to  the  apportionment  and 
assessment  made  and  filed  by  the  surveyor 
in  the  above-entitled  matter."  The  record 
shows  that  on  that  day  the  board  met  and 


•For  otiiar  caie*  lee  ■am*  topic  and  section  NDUBBR  la  Dae.  *  Am.  Dig*.  1907  to  dats,  it  Reporter  Indsza* 


Digitized  by  VjOOQ  l€ 


Kd>.) 


CRAM  T.  CHICAGO,  B.  As  Q.  B.  CO. 


81 


fonnd  that  proper  notice  had  been  given 
that  a  hearing  would  be  had  upon  that  day 
upon  the  report  of  the  engineer  in  the  mat- 
ter of  the  Dolph  drainage  ditch,  and  the 
further  hearing  of  the  petition  was  continu- 
ed until  the  24th  of  January.  The  record 
then  8how8  that  the  hearing  of  evidence  and 
arguments  began  on  Jannary  24th,  and  was 
continued  on  the  25tb,  26th,  27tb,  and  29th 
of  that  month  and  that  the  proceedings  con- 
tinued on  February  3d.  6th,  7th,  14th,  15th, 
23d,  24th.  26th,  and  27th;  that  on  March 
9th  a  resolution  was  adopted  reciting  the 
prior  proceedings,  and  that  "an  amended 
schedule  of  all  lots,  lands,  public  and  cor- 
porate roads  and  railroads  that  will  be  bene- 
fitted by  said  improvement,  and  an  appor- 
tionment of  a  number  of  lineal  feet  and 
cubic  yards  to  each  lot  and  tract  of  land, 
public  and  corporate  roads  and  railroads  ac- 
cording to  benefits  which  will  result  to  each 
from  said  Improvement,  which  said  amend- 
ed scbedale  and  apportionment  wajs  filed  In 
the  oflSce  of  the  county  clerk  on  the  9th  day 
of  March,  1906,  and  attested  by  the  signature 
of  the  chairman  and  members  of  tbls  board. 
Therefore  be  it  resolved  that  said  report  and 
said  amended  apportionment  and  said  pro- 
file and  plat  and  said  estimate  of  the  num- 
ber of  cubic  yards  for  each  working  section 
and  said  amended  schedule  of  lots  and  lands, 
roads,  and  railroads  and  said  amended  ap- 
portionment of  lineal  feet  and  cubic  yards  to 
each,  and  said  estimate  for  location  and  con- 
struction to  each,  and  said  specifications  are 
hereby  by  this  board  adjudged  to  be  in  all 
respects  fair  and  just  according  to  the  l>ene- 
fits  and  in  form  as  required  by  law,  and  that 
they  and  each  and  all  of  them  are  hereby 
approved,  confirmed  and  adopted  as  the  final 
act  and  Judgment  of  this  board  In  the  prem- 
ises." The  record  shows  that  the  appellant 
excepted.  These  exceptions,  filed  after  the 
apportionment  was  adopted,  alleged  as 
grounds  thereof  "that  the  apportionment 
and  assessment  is  unfair  and  unjust.  In  that 
said  drainage  ditch  confers  no  benefit  what- 
ever upon  said  railroads,  roadbed  or  any 
real  or  personal  property  owned  by  said 
railroad  company."  A  hearing  was  begun 
on  that  day  on  the  exceptions,  and  continued 
upon  March  12tb  and  13th,  on  which  day  the 
board  found  "that  the  apportionment  made 
a^lnst  the  Union  Pacific  Railroad  Com- 
pany for  the  location  and  construction  of 
said  ditch  in  the  sum  of  $2,550  Is  just  and 
therefore  the  exceptions  are  overruled,"  and 
taxed  the  costs  to  the  appellant. 

From  this  abstract  It  appears  that  there 
U  no  copy  of  that  portion  of  the  report  or 
of  the  apportionment  afFectlng  the  appel- 
lant's property  in  the  record.  The  <Mily 
matter  In  the  form  of  a  final  order  which 
appears  Is  the  ruling  of  the  county  board 
upon  the  exceptions  to  the  report  and  appor- 
tionment filed   after   their   adoption.     The 


resolntion  of  the  board  aaopting  and  con- 
firming the  amended  report  of  the  engineer 
and  the  amended  schedule  and  apportion- 
ment as  the  final  act  and  judgment  of  the 
board  Is  of  no  force  or  effect  with  regard  to 
appellant  In  the  absence  of  any  recital  or 
showing  of  that  portion  of  the  report  and 
apportionment,  if  such  there  be,  which  af- 
fects Its  property  or  which  purports  to  lay 
a  tax  thereon.  All  that  this  record  shows 
may  be  true,  and  yet  appellant's  property 
rights  not  be  Infringed  upon  or  In  any  way 
affected.  It  Is  true  that  afterwards,  on 
March  13tb,  the  board  found  that  the  ap- 
portionment was  Just  and  overruled  the  ex- 
ceptions, but  these  exceptions  were  In  the 
nature  of  a  motion  for  a  new  trial,  and  the 
order  then  made  was  not  the  final  judgment 
which  It  is  sought  to  review.  The  final  or- 
der of  which  the  plaintiff  complains  not  be- 
ing In  the  record  there  la  nothing  before  us 
for  review,  and  the  appeal  Is  therefore  dis- 
missed. 

We  deem  It  our  duty  to  say  that  the  rec- 
ord in  this  case  Is  a  thorough  going  example 
of  everything  which  a  record  ought  not  to 
be.  The  papers  are  attached  together  In  a 
jumbled,  confused,  and  almost  undlstinguish- 
able  manner,  and  It  has  required  unneces- 
sary labor  upon  the  part  of  the  court  to 
bring  order  from  chaos  and  sift  from  the 
confused  mass  enough  to  show  the  manner 
and  order  In  which  the  proceedings  were 
bad. 


CRAM  ▼.  CHICAGO.  B.  ft  Q.  R.  CO. 

(No.  15,148.) 

(Supreme  Ck>urt  of  Nebraska.    June  11,  1900.) 

1.  StaTCTES    (8    139*)— CONSTTTUTIONAI,    LaW 

(S   303*)  —  Amendment  of  Statute  —  Duk 

Pbocess  op  Law. 

Sections  10,600  and  10,607,  Cobbey's  Ann. 
St.  1907,  being  chapter  107,  p.  606,  Laws  Neb. 
1905.  do  not  contravene  sections  11  or  15  of 
article  3  of  the  Constitution  of  Nebraska;  nor 
is  said  legislation  repugnant  to  the  fourteenth 
amendment  to  the  Constitatlon  of  the  United 
States. 

[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent.  EMg.  {  207;  Dec.  Dig.  S  139;*  CoastUu- 
tional  Law,  Dec.  Dig.  t  303.*] 

2.  Questions  Reviewed. 

The  defendant  having  failed  to  prove,  or 
offer  to  prove,  any  affirmative  defense  to  an  ac- 
tion under  said  statute,  save  and  except  that  as 
to  its  delay  in  forwarding  one  car  load  of  stock 
it  did  so  in  deference  to  the  statute  prohibiting 
the  operation  of  trains  on  Sunday,  and  defend- 
ant having  been  given  by  this  court  the  benefit 
of  said  defense,  it  is  unnecessary  to  determine 
whether  the  statute  precluded  any  other  defense 
in  said  action. 

3.  Cabriebs  (S  2*)— Shipment  of  Live  Stock 
— Reg  UI.ATION— Penalties. 

The  Legislature  may  provide  by  general 
law  that  a  shipper  of  live  stock  may  recover 
liquidated  damages   from   a  public  carrier  for 


•For  oUiM'  auum  sae  sama  topic  and  McUon  NUMBER  in  Dec.  A  Am.  Digs.  1907  to  date,  A  Reporter  latexes 


Digitized  by  VjOOQ  l€ 


32 


122  NORTHWESTERN  REPORTER. 


(Neb. 


failare  to  transport  anch  stock  committed  to  the 
carrier  for  transit  between  stations  in  Nebraska. 
[E!d.  Note.— For  other  cases,  see  Carrieis,  Dec. 
r>ig.  {  2.»] 

4.  CaRBIERS   (J   2*)  —  REOOT.ATI0II  —  INCBEAS- 

INO  Common-Law  Liabilitt. 

Section  4  of  article  11  of  the  Constitution 
does  not  prohibit  the  Legislature  from  increas- 
ing the  common-law  liability  of  common  -  car- 
riers, and  in  case  the  Legislature  expands  sucb 
liability  the  courts  will  not  declare  the  stat- 
ute void  on  the  complaint  of  the  carrier,  because 
in  some  hypothetical  case  the  law,  if  applied, 
might  work  to  the  disadvantage  of  a  shipper. 

[Ed.  Note.— For  other  cases,  see  Carriers,  Dec. 
Dig.  {  2.»] 

5.  Commerce  (|  61*)— Interstate  Commerce— 
Reqitlation  or  Carriers. 

The  statute  does  not  interfere  with  or  regu- 
late interstate  commerce. 

[Ed.  Note.— For  other  cases,  see  Commerce, 
Dec.  Dig.  {  61.»] 

6.  Carriers  (|  20*)— Regulation- Penalties 
—Action— Defenses. 

Where  the-  evidence  disclosed  without  dis- 
pute that  as  to  one  cause  of  action  the  delay 
was  occasioned  by  unloading  the  stock  for  feed, 
water,  and  rest  at  the  feeding  pens  of  defend- 
ant at  a  division  point,  and  that  to  have  con- 
tinued the  shipment  to  the  point  of  destination 
would  have  probably  compelled  the  carrier  to 
have  operated  its  trains  on  Sunday  and  have 
resulted  in  the  delivery  of  said  stock  on  the 
Sabbath,  a  Judgment  based  on  said  count  in  the 
petition  will  be  reversed. 

[Ed.  Note.— For  other  cases,  see  Carriers,  Dec. 
Dig.  {  20.»] 

Barnes,  J.,  dissenting. 

(Syllabus  by  the  Conrt.) 

Appeal  from  District  Court,  Garfield  Coun- 
ty; Paul,  Judge. 

Action  by  Wllber  L  Cram  against  the 
Chicago,  Burlington  &  Qulncy  Railroad  Com- 
pany. Judgment  for  plaintiff,  and  defend- 
ant appeals.    Reversed. 

J.  B.  Kelby,  Frank  Bishop,  B.  M.  White, 
and  Fred  M.  Deweese,  for  appellant  B.  J. 
Clements,  for  appellee.  B.  T.  White,  W.  T. 
Thompson,  and  C.  C.  Flansburg,  amicus 
curiae. 

BOOT,  J.  Action  under  chapter  107,  p. 
506,  Laws  Neb.  1905,  being  sections  10,606 
and  10,607,  Cobbey's  Ann.  St  1907.  Judg- 
ment was  rendered  in  favor  of  plaintiff,  and 
defendant  appeals. 

This  case  has  been  elaborately  briefed  and 
exhaustively  argued  by  counsel  for  the  re- 
spective litigants  and  by  friends  of  the  court; 
but  more  attention  has  been  given  to  the 
validity  of  the  statute  than  to  the  facts  in 
the  instant  case.   The  act  is  as  follows: 

"Sec.  10,606.  It  is  herebjr  declared  and 
made  the  duty  of  each  corporation,  individ- 
ual, or  association  of  individuals,  operating 
any  railroad  as  a  public  carrier  of  freight  in 
the  state  of  Nebraska,  in  transporting  live 
stock  from  one  point  to  another  in  said  state 
in  car  load  lots,  in  consideration  of  the 
freight  charges  paid  therefor,  to  run.  their 
train  conveying  the  same  at  a  rate  of  speed 


so  that  the  time  consumed  In  said  Journey 
from  the  initial  point  of  receiving  said  stock 
to  the  point  of  feeding  or  destination,  shall 
not  exceed  one  hour  for  each  eighteen  miles 
traveled  including  the  time  of  stops  at  sta- 
tions or  other  points,  provided,  in  cases 
where  the  initial  point  is  not  a  division  sta- 
tion and  on  all  branch  lines  not  exceeding 
125  miles  in  length,  the  rate  of  speed  shall 
be  such  that  not  more  than  one  hour  shall 
be  consumed  in  traversing  each  twelve  miles 
of  the  distance  including  the  time  of  stops  at 
stations  or  other  points,  from  the  initial 
point  to  the  first  division  station  or  over 
said  branches.  The  time  consumed  in  pick- 
ing up  and  setting  out,  loading  or  unloading 
stock  at  stations,  shall  not  be  Included  in 
the  time  required,  as  provided  In  this  sched- 
ule. Provided,  further,  that  upon  branch 
lines  not  exceeding  125  miles  in  length  live 
stock  of  less  than  six  cars  in  one  consl^rn- 
ment,  each  railway  company  in  this  state 
may  select  and  designate  three  days  in  each 
week  as  stock  shipping  days,  and  publish 
and  make  public  the  days  so  designated  and 
after  giving  ten  days'  notice  of  the  days  so 
selected  and  designated,  shall  be  reqnired 
upon  its  branch  lines  to  conform  to  the 
schedule  in  this  act  provided,  only  upon  said 
days  so  designated  as  stock  shipping  days. 
"Sec.  10,607.  Any  Individual,  corporation, 
or  association  of  Individuals,  violating  any 
provisions  of  this  act  shall  pay  to  the  owner 
of  such  live  stock,  the  sum  of  ten  dollars 
for  each  hour  for  each  car  it  extends  or  pro- 
longs the  time  of  transportation  beyond  tbe 
period  herein  limited  as  liquidated  damages 
to  be  recovered  in  an  ordinary  action,  aa 
other  debts  are  recovered." 

1.  It  is  argued  that  the  Legislature  In 
enacting  said  statute  violated  section  11, 
art.  3,  of  the  Constitution,  because  the  la^r, 
if  given  effect  amends  sections  10,596,  lO,- 
597  and  10,598,  Cobbey's  Ann.  St  1907,  and 
the  act  of  1906  does  not  mention  or  repeal 
the  statutes  thus  amended.  The  act  under 
consideration  is  complete  In  Itself,  and,  al- 
though it  may  conflict  somewhat  with  sec- 
tion 10,597,  supra,  it  will  not  for  that  reason 
be  held  void,  as  the  earlier  act  must  yield 
to  the  later.  State  t.  Omaha  Elevator  Com- 
pany, 75  Neb.  637,  106  N.  W.  979,  110  N.  VV. 
874;  Bryant  v.  Dakota  County,  63  Neb.  755, 
74  N.  W.  313.  The  act  of  1905  does  not  in 
any  manner  modify  sections  10,506  or  10,508, 
supra. 

2.  It  is  next  suggested  that  the  statute  de- 
prives a  railway  company  of  the  equal  pro- 
tection of  the  law,  in  that  it  forecloses  any 
defense  that  might  reasonably  exist  In  the 
carrier's  favor  and  provides  for  the  payment 
of  an  arbitrary  sum  to  the  shipper  under 
certain  conditions  without  regard  to  wheth- 
er he  is  damaged  or  not  and  thereby  pro- 
vides for  the  taking  of  the  railway's  prop- 
erty without  due  process  of  law.    As  to  the 


*Tot  otber  cates  se«  Mine  topio  and  section  NUMBER  In  Dec.  ft  Am.  Diss-  U07  to  data,  &  Beporter  Indaxaa 


Digitized  by 


Google 


Nelv) 


ORAM  ▼.  CHICAGO,  B.  &  Q.  R.  CO. 


33 


first  of  the  last-stated  propositions,  defend- 
ant Is  In  the  peculiar  position  of  urging  that 
It  is  without  a  defense,  the  statute  being  con- 
sidered, and  the  court,  not  having  the  assist- 
ance of  counsel  on  this  branch  of  the  law, 
will  not  exhaustively  consider  the  question. 
The  statute  does  not  contain  any  exceptions, 
and  defendant  argues  that  neither  the  act  of 
God  nor  Ineyitable  accident  would  excuse  it 
for  failure  to  deliver  a  car  load  of  stock 
within  the  time  limit    Although  we  do  not 
agree  with  counsel.  It  Is  unnecessary  to  In- 
qalre  concerning  what  facta  would  be  a  law- 
ful excuse  for  a  carrier  in  a  suit  like  the 
one  at  bar.    A  statute  will  be  read  In  con- 
nection with  all  other  enactments  upon  that 
sabject    State  v.  Omaha  Klevator  Company, 
75  Neb.  637,  106  N.  W.  9T9,  110  N.  W.  874 ; 
In  re  Hastings  Brewing  Company  (Neb.)  119 
N.  W.  27;   section  418,  2  Lewis'  Sutherland, 
Statutory  Construction  (2d  Ed.).    It  is  also  a 
tralsm  that:    "When  statutes  are  made  there 
are  some  things  which  are  exempted  and 
foreprized  out  of  the  provisions  thereof,  by 
the  law  of  reason,  though  not  expressly  men- 
tioned.    Thus,   things   for  necessity's  sake, 
or  to  prevent  a  failure  of  Justice,  are  ex- 
cepted out  of  statutes."     Rule  5  Dwarrls 
Maxims,  p.  123,  Potter's  Dwarrls  on  Stat- 
utes and  Constitutions.    It  was  held  in  Unit- 
ed States  v.  Klrby,  7  Wall.  482,  486,  19  L.  Ed. 
278,  that,  although  the  statute  providing  a 
penalty  for  Interfering  with   the  transmis- 
sion of  the  malls  did  not  contain  any  excep- 
tion, yet  an  ofScer  might  lawfully  arrest  a 
mail  carrier  upon  a  warrant  charging  him 
with  the  crime  of  murder.    See,  also,  Tsoi 
Sim  V.  United  States,  116  Fed.  920.  54  C.  C. 
A.  154;   State  V.  Barge,  82  Minn.  256,  84  N. 
W.  911,  53  L.  R.  A.  428;  State  v.  Rollins,  80 
Minn.  216,  83  X.  W.  141.    In  Sullivan  Savings 
Institution  v.  Sharp,  2  Neb.  (Unoff.)  300,  96 
X.  W.  522,  it  was  held  that  a  mortgagee  was 
not  liable  in  liquidated  damages  for  refusing 
to  cancel  a  mortgage  if  the  right  of  the  per- 
son making  the  demand  was  not  clear.    The 
statute  does  not  deny  the  carrier  the  right 
to  defend   an  action   brought  thereon,   nor 
state  what,  if  any,  defenses  may  or  may  not 
be  available  in  such  a  case.    Defendant  will 
not  be  in  position  to  complain  in  this  par- 
ticular, until,  in  a  concrete  case  wherein  It 
has  presented  and  maintained  or  offered  to 
maintain,  a  I^itlmate  defense,  the  courts 
have  determined  that  the  statute  denies  the 
carrier  that  right.    Whitehead  v.  Wilming- 
ton &  Weldon  Ry.  Co.,  87  N.  C.  255;    Allen 
V.  Texas  &  Pacific  Ry.  Co.,  100  Tex.  525, 101 
S.  W.  792. 

(^nceming  the  claim  that  the  enforcement 
of  the  statute  will  amount  to  the  taking  of 
defendant's  property  without  due  process  of 
law.  It  may  be  broadly  stated  that  the  car- 
rier la  not  situated  with  reference  to  the 
public,  and  the  statute,  as  natural  persons 
engaged  in  the  ordinary  vocations  In  life  are 
with  reference  to  each  other.  A  speed  of  12 
or  18  miles  an  hour  for  defendant's  freight 
122  N.W.--8 


trains  is  not  prima  facte  unreasonable,  be- 
cause defendant's  testimony  shows  that  it 
operated  said  trains  on  some  parts  of  its 
railway  at  the  rate  of  30  miles  pe;  hour. 
It  may  be  expensive  for  the  railway  in  every 
Instance  to  maintain  the  average  speed  de- 
manded by  the  statute.  A  car  of  live  stock 
transported  from  a  branch  line  to  a  division 
may  not  reach  the  latter  station  in  time  to 
be  Included  within  a  freight  train  going  in 
the  desired  direction  on  the  main  line,  and 
to  devote  a  locomotive  exclusively  to  the 
one  car  for  any  considerable  distance  would 
entail  a  considerable  expense  for  the  carrier. 
However,  the  railway  company  is  permitted 
to  charge  remunerative  rates  for  the  trans- 
portation of  freight.  Its  methods  of  book- 
keeping and  of  collecting  and  tabulating 
statistics  are  such  that  it  can  with  reasona- 
ble exactitude  ascertain  the  cost  to  it  and  a 
fair  charge  to  the  shipper  of  transporting 
any  particular  pr(^>erty.  If  the  Legislature 
Iras  by  regulating  the  service  Increased  the 
expense  of  transporting  live  stock  in  Nebras- 
ka, and  to  comply  with  the  statute  will  wipe 
out  a  reasonable  margin  of  profit  for  the 
carrier  on  all  of  its  Intrastate  business,  it 
has  ample  recourse  in  an  increase  of  rates, 
so  that  In  the  end,  viewed  as  a  general  prop- 
osition, the  enforcement  of  the  law  to  the 
extreme  suggested  by  defendant's  learned 
counsel  will  not  deprive  the  carrier  of  any 
Just  profit  nor  take  its  property  without  due 
process  of  law.  In  the  instant  case  the  en- 
forcement of  the  law,  as  we  view  the  rec- 
ord, will  not  deprive  defendant  of  any  con- 
stitutional guarantee,  state  or  national.  De- 
fendant's property  is  affected  by  a  public 
Interest,  and,  having  devoted  that  property 
to  a  use  in  which  the  public  bave  an  in- 
terest. It  must,  to  the  limit  of  the  interest 
thus  acquired  by  the  public,  submit  to  the 
control  of  such  property  for  the  public  good. 
City  of  RushvUle  v.  Rushvllle  N.  &  G.  Co., 
132  Ind.  575,  584,  28  N.  E.  853,  15  L.  R.  A. 
321 ;  Chicago,  B.  &  Q.  Ry.  Co.  v.  Iowa,  94 
U.  S.  155,  24  L.  Ed.  94.  The  public  is  in- 
terested not  only  in  being  permitted  to  have 
its  property  transported  for  a  reasonable 
compensation,  but  also  In  having  that  prop- 
erty, especially  if  subject  to  rapid  deprecia- 
tion, transported  with  reasonable  promptness 
and  care. 

Before  the  enactment  of  this  statute,  the 
carrier  was  liable  in  damages  to  the  shipper 
if  it  unnecessarily  and  unreasonably  delayed 
the  transportation  of  live  stock  committed 
to  its  possession  for  carriage."  Nelson  v. 
Chicago,  B.  &  Q.  Ry.  Oo.,  78  Neb.  57,  110  N. 
W.  741;  Denman  v.  Chicago,  B.  &  Q.  Ry. 
Co.,  52  Neb.  140,  143,  71  N.  W.  967.  The 
Legislature,  in  passing  from  the  subject  of 
compensation  to  that  of  service,  kept  well 
within  its  constitutional  rights,  and  the  In- 
quiry should  be  confined  to  ascertaining 
whether  the  operation  of  the  law  will  im- 
pose such  an  undue  burden  npou  the  carrier 
as  to  take  from  It  something  for  which  the 


Digitized  by  VjOOQ  l€ 


34 


122  NORTHWESTERN  REPORTER. 


(Neb. 


public  will  not  gtTe  an  adequate  return.  It 
is  a  matter  of  common  knowledge  that  live 
stock  confined  in  a  freight  car  deteriorates 
in  condition,  and  that,  If  the  animals  are  to 
be  placed  on  the  market  within  a  short  time 
of  the  termination  of  transportation,  the 
depreciation  Is  not  confined  to  a  shrinkage 
In  weight,  but  to  many  other  factors  difficult 
to  prove,  but  actually  existing  and  seriously 
uSectlng  the  market  value  of  said  property. 
As  the  damage  accruing  from  the  proti^ct- 
ed  confinement  of  stock  Is  difficult  to  prove 
with  reasonable  exactitude,  and  yet  always 
exists,  the  Legislature  has  the  power  to  pro- 
vide for  liquidated  damages.  Such  legisla- 
tion Is  not  unsound  In  principle  and  has  been 
upheld  In  many  courts. 

Section  4966  of  the  Revised  Statutes  of 
the  United  States  (U.  S.  Comp.  St  1001,  p. 
3415)  provides  that  one  who  publicly  per- 
forms a  dramatic  composition  without  the 
permission  of  the  owner  of  the  copyright 
thereof.  If  It  has  been  copyrighted,  shall  be 
liable  In  damages  in  at  least  $100  for  the 
first  performance  and  $50  for  each  subse- 
quent production.  In  Brady  v.  Daly,  175  U. 
S.  148,  20  Sup.  Ot  62.  44  L.  Ed.  109,  the 
statute  was  upheld,  not  as  a  penalty,  be- 
cause It  was  said  only  the  owner  of  the  copy- 
right may  bring  the  action,  nor  as  a  punish- 
ment to  the  wrongdoer,  but  as  a  reasonable 
liquidation  of  the  damages  which  the  pro- 
prietor had  suffered  from  the  wrongful  actg 
of  the  defendant.  So,  also,  where  the  stat- 
ute provided  for  a  flat  recovery  of  a  stipu- 
lated sum  for  the  negligent  killing  of  a  per- 
son, the  act  was  held  not  to  deprive  defend- 
ant of  property  without  due  process  of  law. 
It  might  be  that  substantial  damages  had 
not  accrued  to  the  plaintiff  In  a  particular 
case.  In  some  Instances  the  damage  would 
be  Insignificant,  and  in  others  death  would 
relieve  the  plaintiff  of  a  pecuniary  burden. 
Under  that  statute  It  would  not  avail  tbe 
defendant  to  plead  and  offer  to  prove  that 
the  deceased  was  a  helpless  cripple,  or  in  tbe 
last  stages  of  tuberculosis,  nor  would  It  be 
beard  to  say  that  Its  property  was  In  danger 
of  being  taken  without  due  process  of  law. 
Ooover  v.  Moore  &  Walker,  31  Mo.  574,  676; 
Carroll  v.  Missouri  P.  Ry.  Co.,  8S  Mo.  239, 
57  Am.  Rep.  382.  Counsel  for  defendant 
irgue  that  the  statute  purports  to  give  more 
ihan  compensatory  damages,  and  therefore 
la  controlled  by  Railroad  Company  v.  Baty, 
6  Neb.  37,  29  Am.  Rep.  356;  but  that  case 
vnerely  disapproved  a  statute  that  purported 
lo  give  double  damages,  and,  if  the  act  un- 
der consideration  provided  for  the  recovery 
of  double  or  treble  damages,  we  would  not 
hesitate  to  apply  the  earlier  case  to  the  In- 
stant one.  Such  Is  not  the  case.  On  more 
than  one  occasion  we  have  upheld  the  right 
of  tbe  Legislature  to  liquidate  damages  that 
may  arise  from  the  default  of  a  person  under 
circumstances  which  preclude  the  ascertain- 
ment of  the  actual  damages  suffered  by  tbe 
aggrieved  person.    In  Graham  v.  Kibble,  9 


Neb.  182,  2  N.  W.  4S5,  a  recovery  of  the  stat- 
utory damages  of  $50  against  a  public  of- 
ficer for  collecting  a  greater  fee  for  his  ofll- 
clal  services  than  the  law  prescribed  wns  af- 
firmed. In  Clearwater  Bank  v.  Kurkonski. 
45  Neb.  1,  63  N.  W.  133,  the  statute  permit- 
ting a  mortgagor  to  recover  from  tbe  mort- 
gagee $50  liquidated  damages  for  failing  to 
release  a  chattel  mortgage  after  it  had  been 
fully  paid  was  sustained,  and  in  Hler  v. 
Hutehings,  58  Neb.  334,  78  N.  W.  633,  we 
approved  the  statute  providing  fop  the  re- 
covery of  $500  against  an  officer  if  be  re- 
arrest a  person  that  had  been  discharged  on 
a  writ  of  habeas  corpus  for  the  same  offense 
as  that  described  in  the  officer's  warrant. 
Counsel  distinguish  those  cases  relating  to 
public  officers  for  the  alleged  reason  that  tbe 
Legislature  may  subject  the  occupant  of  a 
public  offlice  to  damages  for  particular  un- 
lawful acts  committed  in  the  conduct  there- 
of. Although  the  Legislature  may  not  pro- 
hibit the  carrier  from  transacting  business, 
yet  it  may  regulate  the  affairs  of  that  public- 
servant,  and  much  of  the  reason  for  sus- 
taining the  power  of  the  Legislature  to  pro- 
vide that  public  officers  shall  pay  a  definite 
sum  as  liquidated  damages  for  acts  of  com- 
mission or  omission  applies  to  like  provi- 
sions in  statutes  passed  to  regulate  public 
carriers  in  the  transaction  of  their  business. 

3.  It  is  argued  that  the  Constitution  of  the 
state  provides  that  the  "liability  of  railroajl 
corporations  as  common  carriers  shall  never 
be  limited,"  that  the  shipper  might  suffer 
a  greater  damage  by  reason  of  delay  in  the 
transportation  of  his  stock  than  he  could  re- 
cover under  the  act  in  question,  that  the 
statute  would  prevent  the  shipper  from  re- 
covering his. actual  damage,  and  therefore  Is 
void  for  that  reason.  Such  a  condition  could 
not  prejudice  the  defendant,  and  it  cannot 
litigate  a  shipper's  rights  in  a  hypothetlcsi  I 
case  tbat  may  never  tie  presented  to  this 
court.  Commonwealth  v.  Wright,  79  Ky.  22. 
42  Am.  R^.  203;  State  v.  Becker,  3  S.  D. 
29,  51  N.  W.  1018;  Lake  S.  &  M.  S.  R.  Co.  v. 
Ohio,  173  U.  S.  285,  308,  19  Sup.  Ct  465,  4:i 
L.  Ed.  702. 

4.  Defendant  asserts  that  many  of  the 
shipments  complained  of  were  carried  in  in- 
terstate trains,  and  that  the  statute  inter- 
feres with  interstate  commerce,  and  cites 
Houston  V.  Mayes,  201  U.  S.  321,  26  Sup.  Ct. 
491,  50  L.  Ed.  772.  Counsel  have  not  refer- 
red to  any  admission  In  the  pleadings  or  to 
a  syllable  of  testimony  that  will  sustain  tlie 
claim  advanced.  All  of  the  stock  was  trans- 
ported between  points  within  the  state,  and 
no  part  of  the  route  traveled  extended  l>o- 
yond  the  borders  of  Nebraska.  The  Unlte<l 
States  Supreme  Court,  in  Houston  y.  Mayes, 
supra,  considered  an  interstate  shipment  and 
only  determined  that  the  Texas  statute  wns 
invalid  in  so  far  as  it  might  be  applied  there- 
to, and  subseiiuently  the  law  was  held  valiil 
as  applied  to  Intrastate  shipments.  Allen  v. 
Texas  &  P.  U.  Co.,  100  Tex.  525.  101  S.  W. 


Digitized  by  LjOOQ  l€ 


Xeb.) 


CRAM  ▼.  CHICAGO,  B.  &  Q.  R.  CO. 


35 


792.  Nor  would  we  concede  that,  by  Includ- 
ing the  can  in  a  train  made  up  partially  of 
cars  which  contained  property  consigned  to 
points  without  the  state  of  Nebraska,  de- 
fendant could  avoid  the  statute  so  far  as  the 
Intrastate  shipments  were  concerned.  Hen- 
Dington  T.  State  of  Georgia,  163  U.  S.  299, 
317.  16  Sup.  Ct.  1086,  41  L.  Ed.  166. 

5.  It  Is  suggested  that  the  statute  is  class 
le^latlon  and  inimical  to  section  15  of  ar- 
ticle 3  of  the  Constitution.  The  act  operates 
oniformly  upon  all  persons  coming  within 
the  class,  and  the  classification  has  reason  to 
justify  its  existence.  The  greater  part  of 
freight  Is  Inanimate.  Much  of  it  will  not  de- 
preciate if  delayed  somewhat  In  transporta- 
tion; but  live  stock,  peculiarly  of  all  perish- 
able freight,  must  be  handled  expeditiously 
to  preserve  its  value.  Vegetables,  If  kept 
warm  in  winter,  will  not  deteriorate  If  lei- 
surely transported,  and  fresh  fruit,  meat,  and 
dairy  products.  If  chilled  and  kept  at  a  prop- 
er temperature,  may  be  delayed  in  transit 
dnriug  the  warm  weather  and  still  arrive 
frpsh  and  wholesome  at  the  point  of  destina- 
tion ;  but,  regardless  of  the  season  or  weath- 
er, speed  is  an  essential  element  in  the  prop- 
er transportation  of  live  stock  by  tlie  car- 
rier. We  conclude  that  the  law  does  not  vi- 
olate said  section  of  the  Constitution.  Cle- 
land  T.  Anderson,  66  Neb.  252,  92  N.  W.  306, 
96  N.  W.  212,  98  N.  W.  1075,  5  L.  R.  A.  (N. 
S.)  136. 

6.  As  to  the  first  cause  of  action,  plain- 
tltr  was  permitted  to  recover  for  a  delay  of 
2i  hours  in  the  shipment  of  one  car  of  stock. 
It  Is  undisputed :  That  said  stock  was  ship- 
ped from  Burwell  In  the  forenoon  of  Satur- 
day, the  first  of  July;  that  In  the  regular 
coarse  of  transit  It  would  pass  through  the 
city  of  Lincoln,  where  defendant  maintains 
eiienslve  yards  and  pens  for  feeding,  water- 
ing, and  resting  stock ;  that  plaintiffs  stock 
srrlved  at  said  point  at  10:30  p.  m.  of  said 
Saturday,  which  was  within  the  time  fixed 
by  the  statute,  and  was  unloaded,  fed,  and 
retained  until  Sunday  night,  when  they  were 
forwarded  to  South  Omaha.  Therefore,  out 
of  the  24  hours'  delay  in  said  shipment  for 
which  plaintiff  recovered  judgment,  23  hours 
and  15  minutes  may  be  accounted  for  by  said 
!>*op  at  the  feedyards.  If  this  time  may  be 
dcdacted,  there  was  less  than  one  hour's  de- 
lay In  said  shipment,  and  plaintiff  would  not 
be  entitled  to  recover  therefor.  The  statute 
only  binds  the  carrier  to  maintain  the  mini- 
mnm  rate  of  speed  between  the  initial  point 
"of  receiving  said  stock  to  the  point  of  feed- 
ing or  destination."  Defendant  was  within 
the  letter  of  the  law.  Furthermore,  the  cat- 
tle were  fed  at  Lincoln,  and  the  time  con- 
somed  there  should  not  in  our  judgment  have 
been  charged  against  the  carrier.  We  are  of 
opinion  that  defendant  was  not  required  to 
•^oDtinue  running  its  train  on  Sunday,  nor 
to  deliver  the  stock  at  or  about  12  o'clock 
Saturday  night,  and  that  It  might  with  pro- 
priety have. refused  so  to  do  without  Incur- 


ring a  bill  for  damages;  to  that  extent,  at 
least,  a  defense  was  presented,  and  plaintiff 
should  not  bare  recovered  on  bis  first  causo 
of  action. 

There  is  some  evidence  in  the  record  to  the 
effect  that  one  car  of  stock  was  transported 
from  Ashland  to  South  Omaha  via  Ft.  Crook, 
a  somewhat  longer  route  than  by  Gretna, 
that  the  grades  on  the  former  line  are  light- 
er than  on  the  latter,  and  this  fact  and  a  con- 
gestion of  trains  on  the  Gretna  route,  impel- 
led the  choice  to  the  Ft.  Crook  line.  Tbo 
pleadings,  however,  do  not  admit  the  consid- 
eration of  this  extra  mileage,  which  we  arc 
of  opinion  might  have  been  considered  had  a 
proper  issue  been  presented.  There  is  also 
some  evidence  that,  at  the  stations  interme- 
diate Burwell  and  South'  Omaha,  some  time 
was  consumed  In  setting  out  and  picking  up 
stock,  for  which  defendant  would  have  been 
entitled  to  credit  bad  there  been  anything 
tangible  and  definite  in  the  testimony  on 
said  point;  but,  in  the  condition  of  the  rec- 
ord, neither  the  district  court  nor  this  court 
can  find  that  on  any  particular  shipment  any 
definite  deduction  should  have  been  made. 

There  is  also  considerable  evidence  tend- 
ing to  show,  as  a  general  proposition,  that 
in  the  management  of  Its  traffic  defendant 
is  compelled  to  side-track  trains  and  watt 
for  passing  trains,  that  defendant  has  instal- 
led a  block  service  on  its  main  line,  and 
must  at  times  delay  a  train  until  the  one  pre- 
ceding it  going  in  the  same  direction  has 
cleared  the  block  before  the  former  may  be 
permitted  to  enter  it ;  but  no  one  can  apply 
this  evidence  so  as  to  find  as  a  matter  of 
fact  that  as  to  any  of  the  shipments  a  de- 
lay for  any  definite  period  was  occasioned 
by  the  natural  results  of  a  careful  opera- 
tion of  defendant's  trains.  It  will  therefore 
be  unnecessary  to  consider  whether  those 
facts,  if  properly  presented,  would  have  con- 
stituted a  defense  to  this  action. 

The  judgment  entered,  to  the  extent  of 
$240,  Is  excessive.  Therefore,  unless  the 
plaintiff  within  30  days  of  the  filing  of  this 
opinion  remits  from  the  judgment  recovered 
in  the  district  court  the  sum  of  $240  as  of 
the  date  said  judgment  was  entered,  this 
case  will  be  reversed,  and  the  cause  remand- 
ed for  further  proceedings;  but.  If  such  re- 
mittitur is  filed  as  aforesaid,  the  judgment 
of  the  district  court  will  be  affirmed,  and  In 
that  event  each  party  will  pay  its  own  cof^ts 
In  this  court. 

F.\WCETT,  J.  (concurring).  I  concur  In 
the  majority  opinion,  but  only  upon  the 
ground  that  we  are  concluded  by  numerous^ 
former  decisions  of  this  court  upon  kindred 
questions.  I  have  always  questioned  the 
power  of  the  Legislature  arbitrarily  to  de- 
termine that  one  party  to  a  civil  contract 
shall,  in  the  event  of  a  failure  on  his  part  to 
perform  some  condition  thereof,  pay  to  the 
other  party  damages  which  such  other  par- 
ty has  not  sustained.    To  my  mind  the  true 


Digitized  by  VjOOQ  l€ 


36 


122  NORTHWESTERN  REPORTER. 


(Neb. 


uH  only  Jnat  measare  In  all  rach  cases  la 
actual  damage ;  tut,  lu  order  to  hold  the  law 
under  consideration  In  this  case  invalid,  we 
would  be  compelled  to  overmle  a  number  ot 
former  decisions  of  this  conrt.  This  a  court 
of  last  resort  should  never  do,  except  in  ex- 
treme cases.  I  know  of  nothing  more  con- 
ducive to  the  well-being  of  a  state  than  a 
settled  state  of  the  law. 

BARNES,  J.  (dissenting).  I  am  unable  to 
concur  in  the  majority  opinion.  As  I  view 
the  act  in  question,  it  is  unconstitutional  for 
several  reasons;  but  for  the  sake  of  brevity 
I  shall  discuss  but  one  of  them. 

It  clearly  appears  from  the  opinion  of 
my  associates  that,  in  order  to  uphold  the 
statute,  they  have  been  compelled  to  read  in- 
to it  certain  exceptions  to  its  operation,  and 
have  intimated  that  the  court  may,  In  a  prop- 
er case,  consider  others.  We  have  thus  en- 
larged and  changed  the  act  by  what  seems 
to  me  to  be  judicial  legislation  to  such  an 
vxtent  as  to  make  a  law  which  is  quite  dif- 
ferent from  the  one  passed  by  the  Legisla- 
ture. It  will  be  observed  that,  by  the  plain 
language  of  the  statute,  common  carriers,  in 
transporting  live  stock  in  car  load  lots  over 
their  lines  In  this  state,  must  maintain  a 
speed  of  18  miles  per  hour  on  their  main  and 
12  miles  per  hour  on  their  branch  lines,  and 
as  a  penalty  for  a  failure  to  maintain  that 
rate  of  epwA  they  must  pay  to  the  shipper 
the  sum  of  $10  per  car  per  hour  for  each  and 
every  hour  consumed  beyond  said  time  limit, 
even  if  no  damages  are  caused  by  the  delay. 
To  the  operation  of  this  law  the  statute  it- 
self contains  no  exceptions  and  permits  of  no 
excuses.  One  of  the  defendant's  contentions 
is  that  the  law  is  unconstitutional  because  it 
contains  no  exemption  from  liability  even 
where  the  delay  is  caused  by  the  act  of  God 
or  the  public  enemy.  I  think,  however,  this 
contention  cannot  be  sustained,  for  It  may 
well  be  said  that  such  an  exception  is  al- 
ways understood  and  will  be  supplied  by  im- 
plication. So  far,  I  am  in  accord  with  my 
associates,  but  such  a  rule  does  not  apply  to 
the  failure  to  operate  trains  on  Sunday  and 
delays  caused  by  unavoidable  accidents  and 
the  unlawful  acts  pf  third  persons. 

It  is  conceded,  in  effect,  by  the  majority 
opinion,  that  without  the  last-named  excep- 
tions the  statute  Is  unconstitutional.  It  will 
be  observed  that  as  to  the  plaintiff's  first 
cause  of  action,  which  was  for  a  delay  which 
occurred  on  Sunday  at  the  feedyards  in  Lin- 
coln, the  defendant  is  held  not  liable.  It 
seems  clear  that  as  to  this  extent  the  opin- 
ion amends  the  law,  and  this  therefore 
amounts  to  Judicial  legislation.  This  should 
not  be  resorted  to  in  order  to  uphold  an  act 
which,  as  it  comes  from  the  L^slature,  In 
effect  deprives  the  carrier  of  his  property 
without  due  process  of  law.  In  Re  Contest 
Proceedings,  31  Neb.  262,  47  N.  W.  923,  10 
L.  R.  A.  803,  It  was  said:  "A  casus  omissus 
in  a  statute  cannot  be  supplied  by  a  court  of 


law,  for  that  would  be  to  make  laws."  Where 
the  words  of  a  statute  are  plainly  expressive 
of  an  intent  not  rendered  dubious  by  the  con- 
text, the  interpretation  must  carry  out  that 
intent  It  matters' not  in  such  a  case  what  the 
consequences  may  be.  It  has  therefore  been 
distinctly  stated,  from  early  times  down  to 
the  present  day,  that  Judges  are  not  to 
mould  the  language  of  the  statute  in  order 
to  meet  an  alleged  convenience,  or  an  alleged 
equity;  are  not  to  be  influenced  by  any  no- 
tions of  hardship,  or  of  what.  In  their  view, 
is  right  and  reasonable.  They  are  not  to 
alter  clear  words,  though  the  Legislature  may 
not  have  contemplated  the  consequences  of 
using  them,  and,  however  unjust,  arbitrary, 
or  Inconvenient  the  Intention  may  be,  the  stat- 
ute must  receive  its  full  effect.  What  is 
called  the  policy  of  the  government  with  ref- 
erence to  any  particular  legislation  Is  too  un- 
stable a  foundation  for  the  construction  of 
a  statute.  The  clear  language  of  a  statute  can 
be  neither  restrained  nor  extended  by  any  con- 
sideration of  supposed  wisdom  or  policy,  and, 
even  when  the  court  is  convinced  that  the 
Legislature  really  meant  and  Intended  some- 
thing not  expressed  by  the  phraseology  of  the 
act,  it  wlU  not  deem  itself  authorized  to  de- 
part from  the  plain  meaning  of  the  language 
which  is  free  from  ambiguity.  It  must  be 
construed  according  to  Its  plain  and  obvious 
meaning,  though  the  consequences  should  de- 
feat the  object  of  the  act  A  construction  not 
supported  by  the  language  of  the  statute  can- 
not be  Imposed  by  the  court  in  order  to  effect- 
uate what  may  be  supposed  to  be  the  Intention 
of  the  Legislature.  Kndlich  on  Interpretation 
of  Statutes,  SS  i,  5,  6.  When  the  words  of  the 
statute  admit  of  but  one  meaning,  a  court  is 
not  at  liberty  to  speculate  on  the  Intention  of 
the  Legislature,  or  to  construe  an  act  accord- 
ing to  its  own  notions  of  what  ought  to 
have  been  enacted.  The  moment  we  depart 
from  the  plain  words  of  the  statute  In  a  hunt 
for  some  intention  founded  on  the  general 
policy  of  the  law,  difficulties  will  meet  us  at 
every  turn.  Indeed,  to  depart  from  the  lan- 
guage of  the  act  is  not  to  construe,  but  to 
alter.  It  and  this  amounts  to  Judicial  legis- 
lation. 

Again,  the  power  of  construction  Is  re- 
strained by  certain  well-settled  rules,  and,  if 
this  were  not  so,  its  use  would  often  amount 
to  usurpation  of  legislative  power,  and,  as 
was  said  in  Gage  v.  Currie,  4  Pick.  (Mass.) 
402:  "A  violation  of  the  Constitution  which 
we  are  sworn  to  support."  In  Hyatt  v.  Tay- 
lor, 42  N.  T.  258,  it  was  held  that  no  rule  of 
public  policy,  no  necessity,  no  policy  of  right, 
no  evidence  of  intent  derivable  from  the 
terms  of  the  statute,  or  from  its  design,  per- 
mits of  a  restriction  of  its  plain  and  explicit 
language.  I  am  therefore  of  opinion  that 
when,  in  order  to  prevent  a  law  from  being 
declared  unconstitutional,  it  is  necessary  to 
amend  it  by  Judicial  construction,  It  is  the 
duty  of  the  court  to  promptly  declare  It 


Digitized  by  VjOOQ  l€ 


Neb.) 


BRUNKB  V.  GRUBBN. 


87 


nDcoDstltutlonal  and  thas  avoid  usurping  leg- 
islative powers. 

For  the  foregoing  reasons,  among  ottaers,  It 
Kerns  clear  to  me  that  the  law  In  question 
ihoald  be  declared  unconstitutional,  and  the 
lodgment  of  the  district  court  should  be 
reversed. 


KYLE  V.  CHICAGO,  B.  &  Q.  R.  CO. 

(No.  15,383.) 

(Sopreme  Court  of  Nebraska.     June  11,  1009.) 

Carbiebs  (J  2*)— Shipment  of  Live  Stock— 

Delay  ik  Dex>ivext 

Sections  10,606  and  10,007,  Cobbey's  Ann. 
SL  1907,  are  ralid,  and  io  an  action  thereun- 
der, where  plaintiff  fully  proves  all  of  the  alle- 
gations of  his  petition,  and  defendant  does  not 
controvert  said  proof  or  establish  any  defense 
to  the  action,  the  judgment  of  the  district  court 
will  be  affirmed. 

ri^.  Note. — ^For  other  cases,  see  Carriers,  Dec. 
Dw.  S  2.*] 

(Syllabus  by  the  Uourt.) 

Appeal  from  District  (Tourt,  Merrick  Coun- 
ty; Reeder,  Judge. 

Action  by  James  M.  Kyle  against  the  (Chi- 
cago, Burlington  &  Qulncy  Railroad  Com- 
pany. Judgment  for  plaintiff.  Defendant 
appeals.    Affirmed. 

J.  B.  Kelby,  Patterson  &  Patterson,  F.  E. 
Bishop,  Fred  M.  Deweese,  and  Halleck  F. 
Rose,  for  appellant  Martin  &  Ayrea,  for 
appellee. 

ROOT,  J.  This  action  was  instituted  to 
recover  liquidated  damages  for  defendant's 
failure  to  transport  plaintiff's  live  stock  as 
rapidly  as  required  by  sections  10,606  and 
10.G07,  Cobbey's  Ann.  St  1907.  Defendant 
did  not  plead  any  defense  other  than  a  gen- 
eral denial  and  the  affirmative  allegation 
that  plaintiff  accompanied  his  stock,  and  any 
damage  sustained  by  said  shipment  was  the 
result  of  bis  own  negligence  and  carelessness. 
On  the  trial  plaintiff  made  proof  of  the  al- 
legations In  his  petition,  and  defendant  did 
not  introduce  any  evidence  whatever.  In 
its  brief  defendant  assails  the  validity  of 
the  Jaw  and  criticises  plaintiff's  testimony  as 
to  the  time  consumed  by  defendant  on  said 
trip  in  setting  out  and  picking  up  live  stock 
not  owned  by  plaintiff. 

None  of  the  instmctions  are  criticised,  and, 
In  the  state  of  the  record,  and  for  the  rea- 
sons stated  In  Cram  v.  Chicago,  Burlington 
k  Quincy  Railway  Company  (decided  this 
term  of  court)  122  N.  W.  81,  the  case  is  af- 
firmed. 


BRTJNKE  V.  GRUBEN  (RUZISKA,  Inter- 
vener).   (No.  15,755.) 
(Snpreme  Court  of  Nebraska.     June  25,  1909.) 

1.  Oaknishkent  (§  218*)— Claoi  or  Thibd 
Pabty— BcKDBN  or  Pboof. 

If  a  garnishee  answers  that  it  is  indebted 
to  tlie  execution  defendant  who  does  not  resist 


the  proceedings  and  a  third  person  intervenes 
and  claims  the  account,  the  burden  Is  upon  tbe 
intervener  to  establish  his  title  to  the  fund  in 
litigation. 

[Ed.  Note.— For  other  cases,  see  Garnishment 
Cent  Dig.  {  411;   Dec.  Dig.  t  218.*] 
2.  EvinENCE  (§  82*)  —  Pbesumptions  —  Om- 

CIAI.  Pbocekdinob. 

Officers  are  presumed  to  act  according  to 
law,  and,  where  an  execution  was  issued  and  re- 
turned "nulla  bona"  on  the  25th,  and  a  sum- 
mons in  garnishment  sued  out  the  same  day,  but 
the  evidence  fails  to  establish  whether  the  first- 
named  writ  was  returned  before  the  latter  one 
was  issued,  it  will  be  presumed  that  the  sum- 
mons in  garnishment  was  sued  out  subsequent 
to  said  return. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  i  105 ;   Dec.  Dig.  {  82.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Nuckolls 
County;   Adams,  Judge. 

Action  by  August  Brimke  against  Albert 
Griiben.  Ed.  P.  Buzlska  Intervenes.  Judg- 
ment for  plaintiff,  and  intervener  appeals. 
Affirmed. 

W.  A.  Bergstresser,  for  appellant  inter- 
vener.   Cole  &  Brown,  for  appellee. 

ROOT,  J.  Plaintiff  caused  the  First  Na- 
tional Bank  of  Lawrence  to  be  garnisbed 
upon  a  judgment  against  defendant  Gruben. 
Ed.  F.  Ruziska  intervened,  claiming  title  to 
tbe  money  deposited  by  defendant  in  said 
bank.  From  a  judgment  In  plalntlfTs  favor 
tbe  intervener  appealed.  The  garnishee  an- 
swered that  it  was  Indebted  to  defendant 
Gruben  did  not  resist  the  garnishment,  but 
testified  in  Ruzlska's  favor,  and  did  not  ap- 
peal from  tbe  judgment.  Tbe  burden  was  on 
Ruziska  to  establish  title  to  tbe  disputed 
property.  Racek  v.  First  National  Bank, 
62  Neb.  669,  87  N.  W.  542.  One  may  draw 
an  inference  in  favor  of  either  plaintiff  or 
Ruziska,  according  to  tbe  credit  given  the 
testimony  of  Gruben  and  Rnziska.  Tbe  for- 
mer had  been  in  tbe  saloon  business  at  Law- 
rence for  two  years.  To  his  application  for 
a  license  for  1907,  a  remonstrance  was  filed, 
and  the  Intervener  thereupon  applied  for  and 
secured  a  license  to  conduct  that  business 
in  the  building  occupied  by  defendant  Gru- 
ben executed  bills  of  sale  to  Ruziska  for  his  . 
stock  of  goods  and  fixtures,  but  continued 
to  manage  the  saloon,  deposited  in  the 
garnishee  bank  to  his  personal  credit  the- 
receipts  of  said  business,  and  paid  there- 
from for  merchandise  used  by  him  and  ex- 
penses incurred  in  operating  the  saloon.  Alii 
goods  were  charged  and  shipped  to  Ruziska. 
Gruben  did  not  check  on  said  account  for  the- 
benefit  of  tbe  Intervener,  but  claims  to  have 
paid  him  cash  from  time  to  time.  Gruben's. 
name  remained  upon  the  saloon  window,  and 
he  disclaimed  any  Interest  In  said  goods  and 
fixtures  when  the  sheriff  threatened  to  levy 
thereon,  but  claimed  the  bank  deposit  under 
consideration. 


•r«r  otHsr  MM!  lea  lam*  topio  and  netion  NUMBER  In  Dec.  *  Am.  Diss.  190T  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


38 


122  NORTHWESTERN  REPORTER. 


(Neb. 


We  win  not  extend  this  opinion  by  further 
reference  to  the  evidence,  but  dUferent  minds 
may  honestly  draw  diverse  conclusions  there- 
from. The  trial  court  probably  knew  the 
witnesses  personally  or  by  reputation,  and 
must  have  observed  their  demeanor  on  the 
witness  stand,  and  bis  findings  are  supported 
by  the  evidence. 

It  Is  urged  that  the  court  did  not  acquire 
jurisdiction  to  try  the  issue  because  the  ex- 
ecution was  not  returned  "Not  satisfied"  be- 
fore the  summons  in  garnishment  was  sued 
out  No  such  issue  was  presented  to  the 
trial  court,  except  In  the  motion  for  a  new 
trial.  The  evidence  in  support  of  said  mo- 
tion was  not  preserved  in  a  bill  of  excep- 
tions. From  an  amended  transcript  filed  In 
response  to  an  order  for  a  diminution  of  the 
record,  we  learn  that  the  execution  was  is- 
sued and  returned  on  the  25tb  of  October, 
and  the  summons  in  garnishment  sued  out 
that  day.  Which  writ  was  first  issued  the 
record  does  not  disclose,  but  we  will  not 
presume  that  the  clerk  of  the  district  court 
did  not  perform  his  duty  according  to  law. 

The  Judgment  of  the  district  court  there- 
fore Is  affirmed. 

REESE,  C.  J.,  al)sent,  and  not  sitting. 


DAVIS  V.  SCHOOL,  DIST.  OF  CITY  OP 

SOUTH  OMAHA.    (No.  15,691.) 

(Supreme  Court  of  Nebraska.     June  25,  1009.) 

1.  Evidence  (§  571*)  — Expebt  Evidence  — 
Binding  Effeot  on  Juky. 

The  opinion  of  expert  witnesses  in  a  case 
involving  the  value  of  the  services  of  an  archi- 
tect, based  upon  facts  in  evidence  before  the 
jury,  need  not  be  substituted  by  such  jury  for 
its  own  deliberate  judgment. 

[Ed.    Note.— For   other   cases,   see   Evidence, 
Cent.  Dig.  {  2305;   Dec.  Dig.  §  571.*] 

2.  Evidence   (§    571  •)— Expebt  Testimont- 
Binding  Effect  on  Jobt. 

Where  a  witness  skilled  in  architecture  tes- 
tifies solely  as  an  expert  regarding  the  value  of 
the  services  of  an  architect,  the  same  rule  will 
)«  applied  to  his  testimony  that  is  ordinarily 
applied  to  the  testimony  of  expert  witnesses  in 
other  professional  employments. 

[E!d.    Note.— For   other   cases,    see    Evidence, 
Cent.  Dig.  §  2305 ;   Dec.  Dig.  i  571.*] 

'  X  Evidence   (§    571*)- Expebt  Testimony- 
Binding  Effect  on  Juby. 

A  jury  piay  decline  to  accept  the  opinion 
of  expert  witnesses  npon  the  value  of  an  archi- 
tect's services,  even  though  uncontradicted,  and 
in  the  light  of  their  own  experience  and  general 
knowledge,  and  in  the  exercise  of  tkeir  inde- 
l)endent  judgment,  may  base  their  verdict  as  to 
the  value  of  such  services  upon  their  own  de- 
ductions from  all  of  the  evidence  before  them  of 
services  performed. 

[Ed.   Note.— For   other   cases,   see   Glvidence, 
fent.  Dig.  {  2305;   Dec  Dig.  t  571.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Douglas  Coun- 
ty;   Estelle,  Judge. 

Action  by  Leonard  A.  Davis  against  the 


School  District  of  the  City  of  South  Omaha. 
From  the  Judgment  In  his  favor,  plalntlflT 
appeals.    Affirmed. 

T.  J.  Mahoney  and  J.  A.  C.  Kennedy,  for 
appellant.  A.  C.  Pancoast  and  A.  H.  Mur- 
dock,  for  appellee. 

DEAN,   J.     Leonard   A.    Davis,   plaintiff 
and  appellant.  Is  an  architect  who  was  em- 
ployed in  that  capacity  by  the  board  of  edu- 
cation of  the  school  district  of  So'uth  Omaha 
to  prepare  plans  and  specifications  for  the 
construction  of  a  high  school  building  for 
the  defendant  school  district  upon  what  is 
known  as  the  "Hoctor  site."    In  pursuance 
of  his  employment,  he  performed  the  serr- 
Ice,  and,  the  defendant  refusing  to  pay  the 
sum  demanded  by  him,  this  suit  was  begun. 
The  plaintiff  alleges  that  the  rate  of  com> 
pensation  which  he  was  to  receive  was  not 
fixed  other  than  that  he  was  to  be  paid  the 
usual,  reasonable,  and  customary  compensa- 
tion for  such  services,  which  is  3%  per  cent, 
of  the  cost  of  labor  and  material  in  the  con- 
struction of  the  proposed  building,  and  that 
the   cost   of  constructing  complete   such    a 
high  school  building  as  that  contemplated 
by  the  plans  and  specifications  (krepared  by 
him,  including  all  labor  and  material  neces- 
sary for   its   occupancy,   would  have  been 
not  less  than  $1G0,000,  and  that  his  compen- 
sation upon  the  basis  of  SMs  per  cent,  of  the 
above   sum   is   $5,000,   which   he   maintains 
is  the  usual,  reasonable,  and  customary  fee 
for   like  services.     He  admitted  having  re- 
ceived $1,900  from  the  school  district,  but 
alleged  there  was  still  due  to  him  a  balance 
of  13,700   for    bis    services,    for   which    he 
prayed  judgment.    The  question  of  services 
as  a  supervising  architect  during  the  course 
of  construction  does  not  enter  into  the  con- 
sideration of  this  case.    The  answer  denied 
generally  and  specifically  the  allegations  of 
the  petition,  and  prayed  for  a  Judgment  of 
dismissal.     Issues   were  Joined,  and,   upon 
the  trial,  the  plaintiff  was  awarded  a  ver- 
dict for  $1,127.48,  upon  which  Judgment  was 
rendered.    The  defendant  took  no  exceptions 
to  the  Judgment,  but  the  plaintiff,  being  dis- 
satisfied with  the  amount  of  the  recovery, 
brings  the  cause  to  this  conrt  for  review. 

Upon  the  question  of  the  probable  cost  of 
the  construction  of  a  high  school  building 
to  be  erected  in  pursuance  of  the  plans  and 
specifications  furnished  by  the  plaintiff  the 
record  discloses  that  the  allegations  of  the 
petition  were  fairly  supported  by  the  testi- 
mony. Upon  the  question  of  compensation, 
the  plaintiff's  testimony  was  supported  by 
that  of  four  or  five  skilled  architects  called 
by  him  as  expert  witnesses,  and  who  testi- 
fied. In  answer  to  hypothetical  questions 
and  from  an  Inspection  of  the  exhibits,  that 
the  customary,  usnai,  and  reasonable  value 
of  an  architect's  services  such  as  those  ren- 
dered by  the  plalntUt  is  Z\i  per  cent,  of 


'Pot  other  caaeB  see  aiima  topio  and  sectioii  NUMBER  in  Dec.  A  Am.  Digs.  1907  to  date,  £  Reporter  iDdexei 


Digitized  by  VjOOQ  l€ 


\ebk) 


DAVIS  V.  SCHOOL  DIST.  OF  CITY  OP  SOUTH  OMAHA. 


39 


the  cost  of  the  entire  building  finished,  com- 
plete and  ready  for  occupancy,  and  that  this 
rite  is  general  throughout  the  country.  The 
testimony  of  some  of  the  expert  witnesses  is 
to  the  effect  that  this  fee  is  prescribed  by 
tiie  "American  Institute  of  Architects,"  one 
or  more  of  them  being  active  members  of 
that  organization.  The  defendant  introduc- 
ed no  direct  evidence  to  contradict  the  tes- 
thnony  offered  on  the  part  of  the  plaintiff 
upon  the  question  of  the  reasonableness  of 
the  rate  of  compensation,  and  the  latter 
maintains  that  for  this  reason,  among  oth- 
ers, the  verdict  of  the  Jury  cannot  be  sus- 
tained under  any  system  of  computation 
that  may  be  adopted,  except  upon  the  theory 
that  the  Jury  limited  the  amount  of  the 
recovery  to  compensation  for  preliminary 
sl^etcbes  and  drawings,  and  contends  that. 
If  this  was  the  theory  of  the  Jury,  no  legal 
jnstification  therefor  can  be  found  in  the 
record.  The  plaintiff  also  charges  that  the 
verdict  may  be  accounted  for  because  of 
prejudice  and  passion  on  the  part  of  the  jury. 

Counsel  for  plaintiff  argue  that,  in  view 
of  the  evidence  and  the  instructions,  the 
Jury  should  have  merely  confined  their  at- 
tention to  the  task  of  computing  3V2  per 
oent.  upon  $160,000,  and  bringing  In  a  ver- 
iliet  for  that  sum  in  favor  of  their  client 
They  complain  and  charge  that.  Instead  of 
doing  this,  the  Jury  arbitrarily  and  In  defi- 
ance of  the  undisputed  testimony  returned 
a  verdict  for  less  than  1  per  cent,  upon 
that  sum.  They  concede  that  expert  or  opin- 
ion evidence  is  not  always  binding  upon  the 
Jury  because  there  are  many  instances  in 
which  there  are  no  fixed  rules  by  which 
the  value  of  services  may  be  determined, 
concerning  which  experts  are  called  upon  to 
testify,  such  as  the  professional  services  of 
attorneys,  but  they  contend  that  it  is  other- 
wise with  reference  to  the  professional  serv- 
ices of  an  architect,  the  value  of  which  they 
>  argue  may  be  almost  as  certainly  establish- 
ed and  computed  aa  the  price  of  the  most 
staple  articles  of  commerce,  and  that  for 
this  reason,  among  others,  the  Jury  in  the 
present  case  were  bound  by  the  expert  evi- 
dence of  skilled  architects  with  reference 
to  the  value  of  the  services  of  a  brother 
architect,  the  same  as  It  would  be  in  a 
case  Involving  the  establishment  of  the  usual 
and  customary  wage  of  brick  layers,  car- 
penters, and  trades  workers  generally,  or 
"the  going  wage"  of  farm  hands,  where  the 
testimony  Is  all  Identical  upon  a  given  point 
and  undisputed.  They  insist  that  the  evi- 
dence upon  this  point  submitted  by  them  in 
behalf  of  their  client's  cause  may  not  prop- 
erly be  designated  opinion  testimony. 

We  have  examined  the  questions  raised 
by  plaintiff's  counsel  and  the  principles  of 
law  applicable  thereto  as  presented  by  the 
record  before  us,  and  are  unable  to  adopt 
their  reasoning  or  to  apply  the  distinctions 
to  the  evidence  for  which  they  contend.    To 


do  so  would  lie  to  ignore  and  to  set  at  nauglTt 
the  functions  of  the  Jurors  In  the  perform- 
ance of  a  solemn  duty  imposed  upon  them  by 
the  law,  by  their  consciences,  and  by  their 
oaths.  All  of  the  facts  In  the  case,  includ- 
ing not  only  those  which  may  properly  be 
denominated  the  strictly  professional  serv- 
ices of  the  plaintiff,  but  also  the  work  that 
was  performed  by  three  or  four  of  his  as- 
sistants and  subordinates  who  were  in  his 
employ,  were  presented  to  the  Jury  in  detail 
by  the  plaintifTs  testimony  upon  the  direct 
and  the  cross  examination,  and  we  are  not 
prepared  to  say  that  the  Jury  were  not  there- 
by fully  enlightened  and  amply  qualified  to 
pass  upon  and  properly  determine  the  issues 
involved,  nor  are  we  disposed  to  say  from 
the  record  presented  to  us  that  they  did  not 
give  to  all  the  material  facts  in  evidence  be- 
fore them  that  careful  and  deliberate  con- 
sideration to  which  they  were  entitled.  The 
testimony  does  not  show  that  the  services 
that  devolved  upon  the  plaintiff  in  pursuance 
of  his  professional  employment  were  unusual- 
ly intricate  or  complicated,  aiud  it  is  disclos- 
ed that  a  part  of  the  work  was  performed 
by  some  of  his  employes  after  the  usual 
working  hours  and  on  holidays.  We  do  not 
discover  anything  in  the  record  to  preclude 
the  Jury  from  the  free  exercise  of  its  Judg- 
ment as  to  the  weight  to  be  given  to  the  ex- 
pert testimony  and  the  other  evidence  sub- 
mitted. It  may  be  that  the  court  from  a  sub- 
mission of  the  same  facts  would  reach  a 
different  conclusion  than  that  arrived  at  by 
the  Jury,  but  that  is  not  the  question  before 
us.  Adapting  the  language  of  Kllpatrick  v. 
Haley,  C  Colo.  App.  407,  41  Pac.  008,  to  the 
present  case:  "Expert  testimony  is  entitled 
to  consideration  in  connection  with  the  facts 
npon  which  It  is  based,  and  Is  intended  to 
assist  the  Jury  In  reaching  a  conclusion  upon 
the  entire  evidence;  but  they  should  give 
it  only  the  weight  to  which  in  the  light  of 
their  own  knowledge  and  experience  they 
may  consider  It  entitled.  Their  Judgment 
upon  the  facts  is  not  to  be  supplanted  by  the 
opinions  of  witnesses." 

It  is  elementary  that  there  is  a  clear  dis- 
tinction in  regard  to  a  verdict  that  is  based 
upon  testimony  concerning  facts  which  are 
within  the  iiersonal  knowledge  of  the  witnexs 
and  a  verdict  based  upon  expert  or  opiuiou  tes- 
timony which  gives  to  the  Jury  the  cuuclusiun 
of  the  witness  or  the  opiuiou  he  may  have 
formed  from  a  given  state  of  facts.  This  dis- 
tinction has  long  been  clearly  recognlzwl  by 
the  courts,  and  we  do  not  believe  the  facts  in 
the  present  case  exclude  It  from  the  applica- 
tion of  this  salutary  rule.  In  a  pro|ier  case 
the  Jury  are  bound  by  the  evidence  adduc«Hl 
in  the  former  class,  but  the  rule  is  not  so  un- 
yielding In  the  latter.  The  trend  of  authori- 
tative expression  upon  the  subject  of  exitert 
testimony  does  not  He  in  the  direction  of  un- 
duly enlarging  the  sphere  of  tlie  exitert  wit- 
ness in  controversies  Involving  facts  tliat  are 


Digitized  by  LjOOQIC 


40 


122  NOETHWESTERN  REPORTEB. 


(Neb. 


sot  nnusoal  or  extraordinary,  as  herein  pre- 
sented, and  for  which  the  experience  of  the 
average  citizen  will  form  a  criterion.  A  rea- 
iion  for  this  may  be  found  In  the  fact  that  with 
the  passing  of  the  years  the  minds  of  men 
are  being  broadened  by  the  difTuslon  of  gen- 
eral'  luiowledge  in  «Tery  department  of  bu- 
man  endeavor.  To  yield  to  the  contention  of 
plaiutUTs  counsel,  and  to  hold  that  the  work 
of  the  Jury  as  argued  by  them  "should  have 
consisted  merely  of  computing  3%  per  cent, 
on  $160,000  which  would  have  given  $5,600, 
deducting  the  $1,900  paid,  and  computing 
Interest  at  7  per  cent,  per  annum  on  $3,700 
from  July  1,  1901,  to  May  6th,  1907,"  would 
be  equivalent  to  a  denial  of  the  right  of  the 
jury  to  exercise  its  Judgment  as  to  the 
weight  to  be  given  to  the  evidence  before  It 
upon  questions  of  fact  that  are  not  unusual- 
ly intricate,  and  to  make  of  that  important 
branch  of  our  Jurisprudence  a  mere  assem- 
blage of  automatons  selected  and  set  apart 
for  the  merely  formal  purpose  of  recording, 
the  opinion  of  the  experts  who  are  called  to 
testify.  To  such  procedure  we  are  not  pre- 
pared to  give  our  approval. 

2  Wharton,  Evidence,  {  454:  "When  ex- 
pert testimony  was  first  introduced,  it  was 
regarded  with  great  respect.  An  expert  when 
called  as  a  witness  was  viewed  as  the  repre- 
sentative of  the  science  of  which  he  was  a 
professor,  giving  impartially  its  conclusions. 

•  •  •  Apart  from  the  partisan  temper 
more  or  less  common  to  experts,  their  utter^ 
ances,  now  that  they  have  as  a  class  become 
the  retained  agents  of  parties,  have  lost  all 
Judicial  authority,  and  are  entitled  only  to 
the  weight  which  a  sound  and  cautious  crit- 
icism would  award  to  the  testimony  itself. 

•  •  *■  In  this  sense  we  may  adopt  the 
strong  language  of  Lord  Campbell  that  'skill- 
ed witnesses  come  with  such  a  bias  on  their 
minds  to  support  the  cause  in  which  they 
are  embarked  that  hardly  any  weight  should 
be  given  to  their  evidence.' "  Head  v.  Har- 
grave,  105  U.  S.  45,  26  L.  Ed.  1028.  Speak- 
ing for  the  court,  Mr.  Justice  Field  says: 
"To  direct  them  [the  Jury]  to  find  the  value 
of  the  services  from  the  testimony  of  the 
experts  alone  was  to  say  to  them  that  the 
issue  should  be  determined  by  the  opinions 
of  the  attorneys,  and  not  by  the  exercise  of 
their  own  Judgment  of  the  facts  on  which 
those  opinions  were  given.  •  •  ♦  Other 
persons  besides  professional  men  have  knowl- 
edge of  the  value  of  professional  services; 
and,  while  great  weight  should  always  be 
given  to  the  opinions  of  those  familiar  with 
the  subject,  they  are  not  to  be  blindly  receiv- 
ed, but  are  to  be  intelligently  examined  by 
the  Jury  in  the  light  of  their  own  general 
knowledge.  They  should  control  only  as  they 
are  found  to  be  reasonable.  *  •  •  The 
Judgment  of  witnesses  as  a  matter  of  law 
Is  in  no  case  to  be  snbstltuted  for  that  of 
the  Jurors."  In  support  of  the  rule  the  court 
in  the  above  case  cites  Anthony  v.  Stlnson, 


4  Kan.  211;  Patterson  v.  Boston,  20  Pick. 
(Mass.)  159,  166;  Murdock  v.  Sumner,  22 
Pick.  (Mass.)  156.  Justice  Field  cites  this 
language  from  the  Murdock  Case  with  ap- 
proval: "The  Jury  were  not  bound  by  the 
opinion  of  the  witness.  They  might  have 
taken  the  facts  testified  by  him  as  to  the 
cost,  quality  and  condition  of  the  goods,  and 
come  to  a  different  opinion  as  to  their  value." 
In  The  Conqueror,  166  TJ.  S.  110,  17  Sap. 
Ct.  510,  41  li.  Ed.  937,  Mr.  Justice  Brown 
states  the  rale:  "Testimony  as  to  value  may 
be  properly  received  from  witnesses  who  are 
duly  qualified  as  experts,  but  the  Jury,  even 
If  such  testimony  be  uncontradicted,  may 
exercise  their  independent  judgment;  and 
there  is  no  rule  of  law  which  requires  them 
to  surrender  their  judgment,  or  to  give  a 
controlling  influence  to  the  opinions  of  sci- 
entific witnesses.  •  •  •  While  there  are 
doubtless  authorities  holding  that  a  Jury 
*  •  •  has  no  right  arbitrarily  to  Ignore 
or  discredit  the  testimony  of  unlmpeached 
witnesses  so  far  as  they  testify  to  facts,  and 
that  a  willful  disregard  of  such  testimony 
will  be  ground  for  a  new  trial,  no  such  ob- 
ligation attaches  to  witnesses  who  testify 
merely  to  their  opinion;  and  the  Jury  may 
deal  with  it  as  they  please,  giving  It  cre- 
dence or  not  as  their  own  experience  or  gen- 
eral knowledge  of  the  subject  may  dictate." 
The  following  additional  authorities  cited  by 
defendant's  counsel  fairly  support  the  rule 
adhered  to  herein:  Guyson  v.  Brooklyn 
R.  R.  Co.,  49  Misc.  Rep.  514,  97  N.  Y.  Supp. 
1038;  McReynolds  v.  Burlington  Co.,  106  liU 
152;  Sioux  City  R.  R.  v.  Finlayson,  16  Neb. 
678,  20  N.  W.  860,  49  Am.  Rep.  724;  Forsyth 
V.  Doollttle,  120  U.  S.  73,  7  Sup.  Ct.  408,  30 
L.  Ed.  586;  Bentley  v.  Brown,  37  Kan.  16, 
14  Pac.  434;  Stevens  v.  City  of  Minneapolis, 
42  Minn.  136,  43  N.  W.  842;  Myers  v.  Greer,. 
96  Mo.  App.  625,  70  S.  W.  914. 

Hull  V.  City  of  St.  Louis,  138  Mo.  618,  40  S. 
W.  80,  42  L.  R.  A.  753:  "An  Instruction  that 
told  the  Jury  that  they  are  not  bound  to  accept 
the  opinion  of  expert  witnesses,  but  may  give 
such  opinions  the  weight  to  which  the  Jury 
may  deem  them  entitled,  'or  may  altogether 
disregard  such  opinions  If  from  all  the  facts 
and  circumstances  In  evidence  they  believe 
such  opinions  unreasonable,*  was  held  on 
rehearing  to  be  proper.  Following  St  Louis. 
V.  Ranken,  95  Mo.  189,  8  S.  W.  249." 

Jones  V.  Fltzpatrlck,  47  8.  C.  40,  24  8.  E. 
1030:  "The  testimony  of  experts  Is  merely 
the  expression  of  opinions,  and  It  Is  not  error 
In  a  circuit  Judge  to  refuse  to  set  aside  • 
verdict  because  the  amount  found  by  th» 
Jury  was  much  less  than  the  experts  (the 
only  witnesses  examined  as  to  the  value  of 
services)  thought  the  services  were  worth." 

We  have  searched  the  record,  and  are  un- 
able to  discover  any  reversible  error  upon 
the  points  complained  of  by  the  plaintiff. 
The  judgment  of  the  district  court  is  there- 
fore affirmed. 


Digitized  by 


Google 


Nelk.) 


TAYLOR  T.  ILLINOIS  COMMERCIAL  MEN'S  ASS'N. 


41 


TAYIiOB  T.  ILLINOIS  COMMERCIAIj 

MEN'S  ASS'N  OF  CHICAGO,  ILL. 

(No.  16,575.) 

(Sopreme  Conrt  of  Nebraska.    June  25,  1909.) 

1.  Insurance  (|  646»)  —  Actions  —  Pbesump- 
Tioxs  AMD  Burden  or  Proof. 

If  an  incorporated  foreign  insnrance  com- 
paoy.  as  a  defense  in  an  action  upon  one  of  its 
Iiolicies,  pleads  that  the  return  of  the  sheriff 
that  he  served  process  upon  its  agent  is  false, 
for  the  reason  that  the  person  named  was  not 
and  is  not  its  agent,  and  plaintiff  in  her  reply 
denies  those  allegations,  the  burden  is  on  de- 
fendant to  negative  the  agency  of  the  individual 
upon  whom  the  process  was  served. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Dec.  Dig.  {  646.*] 

2.  IxsuRAKCR  (S  627*)  — Actions  — Process— 
Service — Agents. 

Defendant's  evidence  negatived  the  fact 
that  it  had  agents  in  Nebraska  for  specific  pur- 
poses, but  did  not  deny  that  the  individual  des- 
ignated in  the  sheriffs  return  as  its  agent  had 
not  performed  such  acts  as  under  section  6407, 
Cobbey's  Ann.  St.  1907,  would  constitute  him 
its  agent.  The  court,  therefore,  did  not  err  in 
not  submitting  said  defense  to  the  jury. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  {  1574;    Dec  Dig.  i  627.*] 

3.  Inbubance   (I  339*)— Accident— "Change 
His  Business" — What  Constitutes. 

The  policy  provided  that,  if  the  assured 
changed  his  business  or  vocation,  he  must  imme- 
diately send  the  secretary  of  the  company  writ- 
ten notice  of  said  fact,  and  that,  unless  the 
board  of  directors  consented  to  such  change,  the 
policy  npon  the  tenth  day  thereafter  would  cease 
and  determine.  Held,  that  the  change  referred 
to  meant  the  substitution  of  one  business  or  vo- 
cation for  the  other  as  the  usual  business  or  vo- 
cation of  the  assured,  and  did  not  refer  to  a  cas- 
oal  or  incidental  resort  to  other  activities  for 
30  days,  where  the  vocation  described  in  the  pol- 
icy was  not  abandoned,  and  it  was  undisputed 
that  the  assured  expected  within  a  few  days  to 
eontinne  his  usual  vocation. 

[Bd.  Note. — For  other  cases,  see  Insurance, 
Cent  Dig.  §879:   Dec.  Dig.  $  339.*] 

(Syllabua  by  the  Court.) 

Appeal  from  District  Cotirt,  Colfax  Coun- 
ty: Beeder,  Judge. 

Action  by  EXta  Taylor  against  the  Illinois 
Commercial  Men's  Association  of  Chicago, 
111.  Judgment  for  plaintiff,  and  defendant 
appeals.     Afllrmed. 

John  J.  Salllvan  and  James  Meher,  for 
appellant  C.  J.  Phelps  and  H.  P.  Peterson, 
for  appellee. 

ROOT,  J.  Action  upon  an  accident  In- 
rarance  policy.  Plaintiff  prevailed,  and  de- 
fendant appeals.  In  May,  1906,  defendant 
issued  an  accident  Insurance  policy  on  the 
life  of  Breffelt  F.  Taylor,  and  plaintiff  Is  the 
beneficiary  in  said  policy.  On  the  6tli  of 
August,  1906,  the  assured  died  as  a  result 
of  Injuries  Inflicted  by  a  stroke  of  lightning. 

1.  Defendant  is  an  incorporated  foreign 
lnsm^nce  company,  and  alleges  that  process 
was  not  served  upon  its  agent.  Plaintiff  re- 
tided  in  Colfax  county,  and,  upon  defend- 
inrs  refusal  to  pay  the  insurance  claimed  by 


her,  a  cause  of  action,  if  any  existed,  arose 
In  that  county.  In  accord  with  section  59  of 
the  Code  of  Civil  Procedure  the  proper  venue 
in  Nebraska  for  this  action  was  Colfax  coun- 
ty. Nebraska  Mutual  Hall  Ins.  Co.  v.  Mey- 
ers, 66  Neb.  657,  659.  92  N.  W.  672.  Defend- 
ant alleged  "that  the  sheriff's  return  to  the 
effect  that  the  summons  in  this  action  was 
served  upon  defendant  by  delivering  a  copy 
thereof  to  its  agent  Leonard  P.  Bauderman, 
in  Colfax  county,  Nebraska,  is  a  false  return, 
and  confers  upon  this  court  no  Jurisdiction," 
etc.  It  is  further  alleged  that  Bauderman 
is  not  and  never  was  defendant's  agent  for 
any  purpose.  Plaintiff's  reply  traverses 
those  allegations.  The  pleadings  thereby 
presented  for  the  Jury's  consideration  the  is- 
sue of  Bauderman'B  agency.  The  burden 
was  upon  defendant  to  negative  the  return 
of  the  sheriff,  and  Its  counsel  evidently  so 
understood,  because  he  demanded,  and  over 
plaintiff's  objection  was  given,  the  opening 
and  closing  in  the  trial  of  the  case.  Neither 
the  summons  nor  the  return  thereto  appears 
In  the  bill  of  exceptions.  All  of  defendant's 
evidence  to  rebut  the  sherUTs  return  may 
be  found  Ih  defendant's  by-laws,  one  ques- 
tion propounded  to  its  secretary  and  his  an- 
swer thereto.  The  by-laws  provide  that  de- 
fendant's business  shall  be  transacted  In 
Chicago,  but  do  not  forbid  its  officers  ap- 
pointing agents.  In  fact,  without  such  rep- 
resentatives, defendant's  business  would 
languish  and  tbe  object  for  which  It  was 
created  would  be  defeated.  The  secretary 
was  asked:  "Q.  Has  the  Illinois  Commercial 
Men's  Association  any  agents,  general,  spe- 
cial, or  of  any  kind,  empowered  to  solicit 
insurance  for  it,  to  accept  members  for  It. 
or  to  receive  assessments  and  dues  for  It?" 
He  answered:  "It  has  not.  All  its  business 
must  be  transacted  at  its  offices  In  Chicago, 
III."  This  testimony  is  insufficient  to  ex- 
culpate defendant.  It  attempts  to  negative 
Bauderman's  agency  for  specific  purposes; 
that  Is,  that  he  did  not  have  authority  to 
solicit  Insurance,  accept  members,  or  receive 
assessments  for  it  The  secretary  did  not 
state  that  Bauderman  bad  not  performed 
any  of  those  acts  in  Colfax  county  for  de- 
fendant, or  that.  If  he  had  attempted  to  do 
so,  it  bad  rejected  the  fruits  of  his  labors. 
The  secretary  testified  to  his  conclusions. 
Just  what  facts  would  constitute  Bauderman 
defendant's  agent  according  to  the  logic  of 
the  witness  we  do  not  know.  Section  6407. 
Cobbey's  Ann.  St.  1907,  provides:  "Any  per- 
son or  firm  In  this  state  who  shall  receive 
or  receipt  for  any  money  on  account  of  or 
for  any  contract  of  insurance  made  by  him 
or  them,  or  for  any  such  Insurance  company 
or  Individual  aforesaid,  or  who  shall  receive 
or  receipt  for  money  from  other  persons  to 
be  transmitted  to  any  such  company  or  in- 
dividual aforesaid,  for  a  policy  or  policies 


'For  otiMr  eaasa  SM  aama  topio  and  section  NUMBER  in  Dee.  ft  Am.  Digs.  1907  to  date,  ft  Keporter  Indexes 


Digitized  by  LjOOQ  IC 


42 


122  NORTHWESTERN  REPORTER. 


(Neb. 


of  Inaorance  or  any  renewal  thereof,  al- 
though such  policy  or  policies  of  insurance 
may  not  be  signed  by  him  or  them,  as  agent 
or  agents  of  such  company,  or  trbo  shall  in 
any  wise,  directly  or  indirectly,  make  or 
cause  to  be  made  any  contract  or  contracts 
of  Insurance,  for  or  on  account  of  such  com- 
pany aforesaid,  shall  be  deemed,  to  all  in- 
tents and  purposes,  an  agent  or  agents  of 
such  company,  and  shall  l>e  subject  and  lia- 
ble to  all  the  provisions  of  this  chapter." 
The  record  la  barren  of  evidence  to  demon- 
strate that  within  the  meaning  of  the  law 
Itauderman  was  not  the  agent  of  defendant 
In  Colfax  county  at  the  time  the  sheriff 
served  process  in  this  action  upon  him.  The 
defense  is  technical,  and  should  not  be  held 
sufficient  unless  It  responds  to  every  fact 
essential  to  establish  the  immunity  sought. 
Defendant  is  in  the  attitude  of  collecting  pre- 
miums from  the  residents  of  Nebraska,  and 
denying  to  the  courts  of  this  state  the  right 
to  protect  its  citizens  and  enforce  defend- 
ant's contracts,  and  its  defense  to  the  Juris- 
diction of  the  district  court  will  not  be  sup- 
ported by  Intendment.  In  the  state  of  the 
record  we  hold  that  the  trial  court  was  right 
in  not  submitting  the  first  defense  to  the 
jury. 

2.  The  defense  upon  the  merits  is  that 
Taylor,  in  order  to  Induce  defendant  to  is- 
sue the  policy  in  suit,  made  the  following 
wiirranty  and  promise  in  his  application  for 
insurance:  "I  understand  that  if  I  shall 
horcafter  change  my  business  or  vocation 
from  that  herein  stated,  that  I  must  imme- 
diately notify  the  secretary  of  the  associa- 
tion of  such  change,  as  provided  in  article 
II,  section  7,  of  by-laws."  The  by-law  Is  as 
follows:  "Whenever  any  member  of  this  as- 
sociation shall  change  his  business  or  vo- 
cation he  shall  immediately  thereafter  send 
to  the  secretary  a  written  notice  of  such 
change,  and  the  association  shall,  at  its  dis- 
cretion continue  or  cancel  the  membership 
of  such  new  member,  and  his  membership 
shall  cease  and  determine  on  the  tenth  day 
after  such  change  without  action  of  the  board 
of  directors,  unless  he  shall  in  the  meantime 
hnre  sent  such  written  notice."  Defendant 
alleges  that,  when  said  policy  was  Issued, 
Taylor's  business  or  vocation  was  that  of  a 
(•ommerclal  traveler,  and  he  was  not  engaged 
in  any  other  business  or  vocation,  and  that 
for  more  than  30  days  preceding  his  death  he 
liiui  entirely  and  permanently  abandoned  his 
s:iid  business  or  vocation,  and,  when  injured, 
was  engaged  exclusively  in  the  business  or 
vocation  of  a  carpenter,  that  notice  was  nev- 
er given  defendant  by  any  one  of  such  change, 
iiiid  that  neither  defendant  nor  any  of  Its  of- 
licers  liad  knowledge  thereof  or  consented 
thereto.  The  policy  was  in  force  at  the  time 
Taylor  died  nnless  forfeited  by  reason  of  his 
unauthorized  change  of  business  or  vocation. 
It  is  unnecessary  to  cite  authorities  to  sus- 
tain the  proposition  that  the  defense  Inter- 


posed must  fail  unless  the  facts  bring  the 
case  within  the  strict  letter  of  the  contract 
upon  this  point,.but  that,  if  by  any  reasonable 
construction  of  the  contract  and  application 
of  the  facts  thereto  the  policy  can  be  held 
valid,  such  construction  should  be  adopted 
and  application  made.    On  the  other  band. 
If  defendant  has  established  its  defense,   it 
should,  and  will,  be  given  the  benefit  there- 
of.   There  is  but  little,  if  any,  conflict  in  tbe 
evidence.    At  the  time  the  policy  was  issued 
and  until   he  died  Taylor's   home   was    In 
Schuyler,  Neb.,  and  he  was  in  the  employ  of 
the  Money  Weight  Scale  Company  as  a  trav- 
eling salesman  selling  computing  scales   on 
commission.     In  his  application  for  the  pol- 
icy in  suit  Taylor  gave  his  vocation  as  a  trav- 
eling salesman,  and  stated  that  he  devoted 
12  months  in  the  year  to  said  business.  About 
July  8d,  while  following  that  vocation,  he  met 
Mr.  Morey,  an  old  acquaintance,  in  Crawford, 
Neb.     Morey  was  foreman  In  charge  of  the 
construction  of  several  buildings  in  said  city, 
and  desired  to  employ  carpenters  to   assist 
him  in  said  work.    Taylor  was  a  carpenter 
by  trade,  ond  told  Morey  that  "the  scale 
business  did  not  pay,  and  be  wanted  a  Job 
to  make  a  raise  for  a  few  days.    Then   he 
was  going  back  to  tbe  road  to  try  it  again." 
Thereupon  Morey  Induced  Taylor  to  work  as 
a  carpenter  on  said  buildings.    Taylor  stor- 
ed his  sample  cases  In  the  hotel  In  Crawford, 
and  borrowed  some  tools  and  worked  with 
them  until  he  sent  for  and  received  his  own 
tools.    It  Is  claimed  by  defendant  that  Tay- 
lor worked  continuously  as  a  carpenter  from 
July  3d  until  his  death  August  6th,  but  this  is 
not  accurate.    Marshall,  the  employer,  states 
that  between  July  7th  and  July  14th  Taylor 
worked  but  three  days  and  eight  hours,  leav- 
ing at  least  three  days  during  which  Tay- 
lor'a  movements  are  not  accounted  for.     Au- 
gust 4tb  Taylor  was  about  to  quit  said  car- 
penter work,  whereupon  Marshall  raised  his 
wages,  and  induced  him  to  promise  that  he 
would   remain   for   another   week.     Taylor 
stated  that  at  the  end  of  that  time  he  would 
return  to  tbe  road.    August  6th,  just  before  n 
storm,  Taylor  sought  shelter  in  an  inclosed 
house,  and  was  there  killed  by  a  stroke  of 
lightning.     Taylor   had   never   resigned    his 
employment  with   the   scales  company,    and 
its   manager   testified   that   Taylor   was    In 
tbe  company's  employ   at  the  time  of   his 
death.     The  question  presented   is  whether 
within  the  meaning  of  the  policy  Taylor  had 
changed  bis  business  or  vocation  10  days  or 
more  preceding  his  death.    Counsel  for   the 
respective  parties  cite  with  assurance  Union 
Mutual  Accident  Ass'n  v.  Frohard,  134    111. 
228,  25  N.  B.  642,  10  L.  R.  A.  383,  23  Am.  St. 
Rep.  G64.     PlalntUTs  counsel  argue  that   we 
should  accept  the  definition  given  by  Judge 
Baker  of  "occupation"  as  "that  which  occu- 
pies or  engages  tbe  time  or  attention,   the 
principal  business  of  one's  life,"  and  apply  It 
to  the  Instant  case,  whereas  counsel  for  de- 


Digitized  by  VjOOQ  l€ 


Xeb.) 


ARMSTRONG  v.  CITY  OF  AUBURN. 


43 


frndant  reason  that  the  opinion  defines  the 
n-ord  as  "the  vocation,  profession,  trade,  or 
■■ailing  in  which  the  assured  was  engaged  for 
hire  or  profit,"  and  that  the  determining  fact 
in  tbe  instant  case  is  that  Taylor  worked 
for  wages.  Most  of  the  cited  cases  are  bas- 
ed upon  conditions  providing  that  the  as- 
sured shall  not  engage  in  any  occnpatlon 
more  hazardous  or  different  from  the  one 
described  in  his  policy.  In  the  instant  case, 
the  condition  Is  against  a  change  of  vocation. 
Now,  a  man  may  liave  more  than  one  voca- 
tion and  engage  in  an  additional  occupation 
without  abandoning  the  one  described  in  his 
policy,  and,  if  he  does  so,  be  does  not  neces- 
sarily change  bis  vocation,  unless  the  one  is 
substituted  for  the  other.  Defendant's  by- 
laws contemplate  that  its  policy  holders  may 
have  more  than  one  occupation.  Membership 
is  confined  to  traveling  salesmen,  "provided 
he  (the  policy  holder)  is  not  also  engaged  in 
nny  other  business  more  hazardous  than 
Those  named."  In  Stone's  Adm'rs  v.  United 
States  Casualty  Company,  34  N.  J.  Law,  371, 
.1  school  teacher  out  of  employment  was  kill- 
ed as  a  result  of  a  fall  from  the  second  story 
<if  a  bam  which  he  was  having  built,  and  the 
c-onrt  held  that  the  words  "changing  bis  oc- 
fnpatlon"  meant  engaging  in  another  employ- 
ment as  a  usual  business.  In  Simmons  v. 
Western  T^ravelers'  Accident  Ass'n,  79  Neb. 
20, 112  N.  W.  363,  the  deceased  had  been  ouf 
of  employment  as  a  traveling  salesman  for 
two  years,  and  during  that  time  had  resided 
on  his  father's  ranches  in  Texas.  He  had 
performed  some  service  for  said  parent,  but 
had  not  received  wages,  and  it  was  held  for 
that  reason  and  because  he  had  written  for 
the  purpose  of  securing  employment  as  a 
trareling  salesman  that  he  had  not  changed 
his  occupation  within  the  meaning  of  his 
policy.  If  Taylor  bad  performed  the  services 
of  a  carpenter jas  a  matter  of  exercise  or  for 
the  accommodation  of  a  friend,  the  Simmons 
Case  would  be  squarely  in  point.  It  does  not 
seem  to  us  that  the  mere  payment  of  com- 
pensation for  the  identical  act  that  otherwise 
would  not  invalidate  the  policy  can  work 
so  great  a  transformation  in  the  rights  of 
the  parties  as  to  forfeit  the  beneficiary's  right 
to  recover  for  her  husband's  death.  That 
Taylor  was  working  for  wages  was  an  Im- 
portant fact  to  be  considered  In  connection 
<rith  all  other  relevant  evidence  in  estab- 
lishing the  vital  and  ultimate  one — whether 
he  bad  changed  bis  vocation.  Defendant 
(vncedes  that  such  change  must  have  been 
|)ermanent  by  pleading  that  "he  (Taylor)  had 
entirely  and  permanently  abandoned  the  busi- 
ness or  vocation  of  commercial  traveler,  and 
had  engaged  in  the  business  or  vocation  of 
a  carpenter."  The  proof  Is  clearly  to  the  con- 
trary, and  the  court  correctly  permitted  the 
jury  to  find  whether  Taylor  had  resorted  to 
i-arpenter  work  as  bis  usual  employment,  or 


merely  casually,  and  properly  Instructed 
them  that,  to  change  his  vocation  within  the 
meaning  of  defendant's  by-laws,  Taylor  must 
have  abandoned  the  vocation  of  traveling 
salesman  for  that  of  a  carpenter.  The  instruc- 
tion did  not  as  counsel  argue  permit  a  recov- 
ery based  upon  Taylor's  secret  intentions 
because  the  evidence  is  tindisputed  from  his 
acts  and  declarations  that  he  had  not  aban- 
doned his  employment  as  a  traveling  sales- 
man, but  expected  to  actively  engage  therein 
within  a  few  days  of  the  date  of  the  acci- 
dent, and  that  'the  carpenter  work  was  a 
mere  casual  incident  to  his  actual  vocation. 
Had  the  jury  found  for  defendant,  we  would 
not  have  disturbed  their  verdict,  nor,  on  the 
other  band,  will  we  vacate  their  finding  upon 
the  evidence  before  us. 

3.  The  complaints  made  concerning  the  in- 
structions other  than  the  one  referring  to 
Taylor's  change  of  vocation  do  not  present 
serious  questions.  They  have  all  been  con- 
sidered and  must  be  resolved  against  defend- 
ant. 

The  judgment  of  the  district  court  there- 
fore is  afflrmert. 


ARMSTRONG   ▼.    CITT    OF    AUBURX. 
(No.  15,750.) 

(Supreme  Court  of  Nebraska.    June  23,  1909.) 

1.  Mdnicipai,     Cobfobatiors     (S     762*)  — 
Streets— Defects— LiABiLrrr. 

"If  a  municipal  corporation  rightfully  caus- 
es an  improvement  to  be  constructed  or  other 
work  to  be  done,  whether  by  an  Independent 
contractor  or  otherwise.  It  Is  bound  to  take  no- 
tice of  the  character  of  the  work  and  its  condi- 
tion, whether  safe  or  dangerous,  and  is  bound 
to  take  notice  of  the  condition,  whether  safe  or 
dangerous,  of  its  streets  and  grounds  as  affected 
by  the  prosecution  or  performance  of  such  im- 
provement or  work."  City  of  Beatrice  v.  Reid, 
41  Neb.  214,  59  N.  W.  770. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  II  1605-1611;  Dec. 
Dig.  I  762.*] 

2.  TbIAL    (I    295*)- IKSTBUCTIONS— CONSTBUC- 

TioN  AS  A  Whole. 

"An  instruction  which,  if  stiinding  alone, 
might  be  erroneous,  may  not  be  so  when  con- 
sidered with  the  other  instructions  upon  the 
same  subject,  given  in  connection  therewith." 
Allen  V.  Chicago,  B.  &  Q.  R.  Co.  (Neb.)  118 
N.  W.  655. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  I  703 ;    Dec.  Dig.  {  293.*] 

8.  Dakaoes   (I   132*)— Pebsonal  Injuries- 
Excessive. 

Evidence  examined  and  referred  to  in  the 

opinion  held  sufficient  to  sustain  the  verdict  of 

the  jury  and  judgment  of  the  court. 
[Ed.    Note. — For   other   cases,   see   Damages, 

Cent.  Dig.  i  377 ;    Dec.  Dig.  {  132.*] 
(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Nemaha  Coun- 
ty; Raper,  Judge. 

Action  by  William  Lester  Armstrong  against 
the  City  of  Auburn.    Judgment  for  plaintilf. 


'i-'or  oth<>r  raeeii  see  tame  topic  and  section  NUMBER  In  D«c.  ft  Am.  Digs.  1907  to  date,  t  Reporter  Indezek 


Digitized  by 


Google 


44 


122  NORTHWESTERN  REPOHTER. 


(Neb. 


and  defendant  appeals.    ASSnned,  on  condi- 
tion. 

E.  Ferneau  and  H.  A.  Lambert,  for  appel- 
lant   E.  B.  Quackenbush,  for  appellee. 

FAWCETTT,  J.  This  action  was  brought 
In  the  district  court  of  Nemaha  county  to  re- 
cover for  personal  Injuries  sustained  by  rea- 
son of  the  negligence  of  defendant  in  remov- 
ing a  bridge,  or  covering  of  a  large  culvert, 
in  Main  street  in  said  city,  and  leaving  the 
same,  during  the  night  following  the  removal 
of  said  bridge,  without  barriers  to  prevent 
persons  traveling  over  said  street  from  walk- 
ing or  driving  into  said  culvert,  and  without 
any  lights  or  signals  to  warn  them  of  its 
dangerous  condition.  The  answer  is  a  gen- 
eral denial.  There  was  a  verdict  for  plain- 
tiff for  $1,500.  From  a  Judgment  on  such 
verdict,  defendant  prosecutes  this  appeal. 
As  the  answer  does  not  tender  any  defense 
of  contributory  negligence,  that  question  is 
eliminated  from  the  case,  leaving  the  only 
questions  to  be  considered  certain  allege^  er- 
rors in  the  admission  of  testimony,  the  in- 
structions given  and  refused,  and  the  suflS- 
ciency  of  the  evidence  to  sustain  the  verdict. 
We  will  consider  these  points  In  the  order 
named. 

The  only  error  In  the  admission  of  testi- 
mony seriously  complained  of  Is  In  permit- 
ting plaintiff's  father,  who  was  the  chief  own- 
er of  the  company  by  which  plaintiff  was  em- 
ployed, to  testify  that,  subsequent  to  the 
time  of  plaintiff's  injury  and  after  his  mar- 
riage, the  witness.  In  behalf  of  his  company, 
denied  plaintiff  a  raise  of  salary,  for  the  rea- 
son that  he  was  not  able  to  perform  the 
work  that  would  Justify  an  Increase  in  his 
salary  from  the  firm,  and  that  the  reason 
he  was  not  able  to  perform  the  work  in  such 
manner  was  on  account  of  his  being  unable 
to  lift  and  do  heavy  work  that  he  should  do. 
We  are  not  prepared  to  say  that  this  was  er- 
ror; but,  even  so,  the  amount  of  the  verdict 
is  such  as  to  satisfy  us  tttat  the  testimony 
could  not  have  Influenced  the  Jury.  The  rea- 
son for  this  holding  will  appear  In  our  discus- 
sion of  the  weight  of  the  evidence. 

The  instructions  given  by  the  court  were 
all  submitted  by  the  parties  to  the  action, 
some  of  them  by  plaintiff,  and  the  others  by 
defendant.  We  do  not  think  any  good  pur- 
pose cguld  be  served,  either  to  the  parties  or 
to  the  profession,  by  setting  out  the  Instruc- 
tions. We  deem  It  sufficient  to  say  that 
two  of  the  instructions  requested  by  plain- 
tiff would  ordinarily,  in  a  suit  for  personal 
injuries  by  reason  of  defects  In  a  public 
street,  be  somewhat  defective;  but,  in  the 
present  case,  they  cannot  be  complained  of, 
because  defendant  tendered,  and  the  court 
gave,  instructions  which  covered  the  Imper- 
fections of  those  requested  by  plaintiff.  In 
such  a  condition  of  the  record,  error  will  not 
lie.  Allen  v.  Chicago,  B.  &  Q.  R.  Co.  (Neb.) 
118  N.  W.  6o5.    Taken  as  a  whole,  we  think 


the  instructions  fairly  submitted  the  case  to 
the  Jury  under  the  pleadings  and  the  evi- 
dence. 

The  evidence  shows  that  the  work  of  re- 
moving the  plank  covering  the  culvert  was 
done  by  the  street  commissioner  of  defendant 
city,  and  that,  when  the  men  quit  work  at 
6  o'clock  on  the  evening  of  the  accident,  they 
did  not  put  up  any  barricades  or  leave  any 
lights  or  danger  signals  of  any  kind  to  warn  . 
people  of  the  dangerous  pitfall  which  bad 
been  created  in  the  middle  of  tbe  public 
street  Counsel  for  defendant  sought  to 
prove  that  the  street  commissioner  Instruct- 
ed the  men  during  the  day  to  do  these  things, 
and  that  the  city  had  no  notice  or  knowledge 
until  after  the  accident  that  the  orders  of  the 
commissioner  had  not  been  obeyed.  This 
evidence  was  properly  excluded.  The  de- 
fendant, having  created  this  dangerous  pit- 
fall In  the  middle  of  the  public  street,  was 
bound  to  see  that  the  public  was  safeguarded 
against  the  same,  and  could  not  escape  re- 
sponsibility by  charging  the  workmen  en- 
gaged upon  the  work  with  that  duty.  The 
same  would  be  true  even  if  the  street  com- 
missioner was  doing  the  work  under  con- 
tract City  of  Beatrice  v.  Reid,  41  Neb.  214, 
59  N.  W.  770.  The  evidence  shows:  That 
it  was  a  dark  night;  that  between  7:30  and  8 
o'clock,  plaintiff,  in  company  with  a  young 
lady,  was  driving  along  the  main  street  in  a 
single-horse  buggy,  and  plunged  into  this 
culvert;  that  the  culvert  was  between  six 
and  seven  feet  deep,  with  loose  rock  at  tbe 
bottom;  that  plaintiff  was  precipitated  up- 
on these  rocks  and  received  severe  Injuries; 
that  he  was  confined  to  his  bed  for  about 
eight  days,  and  had,  at  divers  times  subse- 
quent thereto,  been  confined  to  bis  bed  for 
short  periods  of  time,  and  during  all  the  time 
from  the  date  of  the  injury  to  the  time  of  tlie 
trial,  a  period  of  over  two  years,  tiad  con- 
stantly suffered  pain,  particularly  In  rainy 
weather.  The  testimony  of  the  attending 
physicians  who  had  examined  him  on  differ- 
ent times,  one  of  such  examinations  being 
Just  prior  to  the  commencement  of  the  trial, 
was  that  his  limb  had  become  shortened  about 
three-quarters  of  an  Inch,  that  the  hip  had.  be- 
come atrophied,  and  that  the  Injury  would 
probably  be  permanent.  lie  was  not  able  to 
resume  his  duties  in  the  store  where  be  was 
employed  for  a  period  of  two  months  after 
the  injury,  and  at  different  times  had  been 
compelled  to  lay  off  for  short  periods  of  time. 
The  evidence  of  tbe  serious  character  of  bis 
injuries  is  very  full,  and,  in  our  Judgment, 
quite  conclusive,  so  much  so  that  we  think 
a  verdict  for  even  a  larger  sum  would  have 
been  Justified  thereby.  One  of  tbe  elements 
of  plaintiff's  demand  was  the  sum  of  $79,  for 
which  he  had  become  obligated  for  medical 
services,  medicines  and  appliances.  While 
the  evidence  shows  that  plaintiff  had  obli- 
gated himself  for  such  an  amount  defend- 
ant contends  there  is  no  evidence  In  the  rec- 
ord to  show  that  $79  Is  the  reasonable  value 


Digitized  by  VjOOQ  l€ 


Xcb.) 


PEUIT  DISPATCH  CO.  t.  QILINBKY. 


46 


«f  such  serrices,  medicines,  and  appliances. 
In  tills  contention  we  think  defendant  is 
rlglit,  and,  as  that  sum  may  have  been  al- 
lowed by  tbe  Jury  in  making  np  the  amount 
of  Its  Terdlct,  it  should  be  deducted  there- 
from. 

Finding  no  other  error  in  the  record,  the 
lodgment  of  the  district  court  is  affirmed, 
on  condition  that  plaintiff,  within  30  days 
from  this  date,  file  a  remittitur  for  the  sum 
«f  $T&.  Falling  so  to  do,  the  Judgment  will 
stand  reversed. 

REESB,  C  J.,  absent  and  not  sitting. 


FRUIT  DISPATCH  CO.  t.  0ILIXSKX. 

(No.  15,743.) 

■(Snpreme  Court  of  Nebraska.     June  25,  1909.) 

1.  Contracts  (|  2ft*)— Contbacts  By  Cobbes- 

POKOKNCE. 

By  means  of  letters  exchanged  in  due 
eoTirse  of  mail,  parties  may  make  a  contract  in 
writing,  without  inserting  all  of  its  terms  in  a 
single  instrument ;  and  a  receipt  describing  a 
definite,  printed  aereement,  and  accepting  its 
provisions  may  perform-  the  office  of  a  letter  in 
that  respect 

[Ed.   Note. — For  other  cases,   see  Contracts, 
Cent.  Dig.  {{  119,  120;  Dec  Dig.  {  2a*] 

2.  8ai.Es  (I  397*)— Actions— SnmciENOT  of 
Evidence. 

A  special  finding  of  a  jury  that  a  contract, 
printed  in  the  back  of  a  book  containing  a 
cipher  code,  and  embodying  uniform  conditions 
of  sale,  was  executed  by  an  importer  of  trop- 
ical fruits  and  a  wholesale  dealer  therein  held 
to  be  sustained  by  the  evidence  in  the  record. 

[Ed.  Note. — For  other  cases,  see  Sales,  Dec. 
Dig.  S  307.*] 

3.  Pkincipai,  and  Agent  (8  150*)— Liabiutt 
TO  Third  Pkbsons— Appabbnt  Atjthoritt. 

An  agent,  acting  within  the  scope  of  his  ap- 
parent authority,  though  outside  of  his  actual 
authority,  may  bind  his  principal  by  acts  af- 
fecting innocent  third  parties. 

(Ed.  Note.— For  other  cases,  see  Principal  and 
Agent,  Dee.  Dig.  |  150.*] 

4.  Fbauds,  Statute  of  (J  120*)— Statute  of 
Anotheb  State. 

Where  the  Iowa  statute  of  frauds  is  plead- 
-H  in  Nebraska  to  defeat  an  Iowa  contract,  the 
law  of  that  state  controls  as  to  such  defense. 
[E!d.  Note.— For  other  cases,  see  Frauds.  Stat- 
ute of.  Cent.  Dig.  {  268 ;    Dec.  Dig.  §  120.*] 

5.  Sates  (J  161*)  —  Delivebt  —  Delivebt  to 
Cabbieb. 

Subject  to  exceptions,  a  general  rule  appli- 
cable to  sales  is  that  a  delivery  to  a  carrier  is 
a  delivery  to  the  purchaser  and  consignee. 
[Ed.  Note.— For  other  cases,  see  Sales,  Cent. 
^  Dig.  H  377-380;   Dec.  Dig.  i  161.*] 

ft,  SAIXS     (i     162*)— DEUVEBT— INSEBTION    OF 

Name  In  Biu,  of  Ladino. 

On  a  record  showing  that  a  wholesale  deal- 
er in  tropical  fruits  at  Council  Bluffs  ordered 
I  a  ear  of  Iiananas  from  an  importer,  knowing 

it  was  being  shipped  northward  from  the  sea- 
port at  New  Orleans  under  a  bill  of  lading  not 
disclosing  a  destination  or  consignee,  the  trial 
court  properly  held  that  the  title  was  trans- 
I  ferred    in    the  hands   of   the   carrier,   and   the 

f  bananas  delivered  to  the  purchaser,  as  soon  as 

I  bis  nsme  as  consignee  and  the  proper  destina- 


tion were  Inserted  in  the  bill  of  lading  by  order 
of  the  consignor  after  he  accepted  the  order, 
there  bein^  no  contrary  agreement,  and  the 
proof  showing  that  the  bananas  at  the  time  com- 
plied with  the  order  as  to  quality  and  condition. 
[Ed.  Note.— For  other  cases,  see  Sales,  Cent 
Dig.  §S  381-383 ;  Dec.  Dig.  {  162.*] 

(Syllabus  by  the  C!ourt.) 

Appeal  from  District  Court,  Donglas  Coun- 
ty; Troup,  Judge. 

Action  by  the  Fruit  Dispatch  (Company 
against  Bernard  OUlnsky.  Judgment  for 
plaintiff,  and  defendant  appeals.    Affirmed. 

Baldridge  &  De  Bord,  for  appellant  F. 
A.  Brogan,  for  appellee. 

ROSE,  J.  This  is  a  suit  by  the  Fruit  Dis- 
patch Company  to  recover  from  Bernard  Gil- 
insky  the  purchase  price  of  a  car  load  of  ba- 
nanas, shipped  from  New  Orleans  to  Council 
Bluffs.  The  fruit  weighed  21,500  pounds,  and 
the  price  was  $1.70  a  hundredweight  The 
Jury  rendered  a  verdict  in  favor  of  plaintiff 
for  $396.95,  the  full  amount  of  its  claim  and 
Interest.  From  a  Judgment  for  that  sum  de- 
fendant appeals. 

The  parties  disputed  over  the  terms  of 
their  agreement  Plaintiff's  understanding 
la  that  the  sale  was  controlled  by  the  terms 
of  a  written  contract,  applicable  to  all  sales 
to  defendant,  and  containing  uniform  provi- 
sions, one  of  which  required  bim  to  accept 
the  fruit  when  delivered  to  the  carrier  at 
the  seaboard.  Defendant  denied  the  exist- 
ence of  such  a  contract,  and  insisted  his  on- 
ly obligation  was  to  accept  the  bananas  at 
Council  Bluffs,  and  pay  the  purchase  price, 
if  they  arrived  in  a  green  and  merchantable 
condition.  '  They  did  not  so  arrive,  accord- 
ing to  his  estimate  of  their  condition,  but, 
on  the  contrary,  as  he  alleges,  were  ripe  and 
unmerchantable.  He,  therefore,  refused  to 
accept  the  consignment.  Plaintiff  disclaimed 
ownership  of  the  fruit  at  Council  Bluffs,  and 
It  was  sold  by  the  carrier  to  pay  the  freight 
charges.  The  position  of  each  party  is  dis- 
closed by  facts  fully  and  formally  pleaded. 
Defendant  was  a  wholesale  fruit  dealer  at 
Council  Bluffs.  Plaintiff  was  an  importer 
of  tropical  fruits,  and  its  method  of  doing 
business  is  partially  described  in  its  brief  as 
follows:  "The  fruit  was  brought  by  steam- 
ships from  tropical  countries  to  the  port  of 
New  Orleans,  where  it  was  immediately  load- 
ed by  the  Fruit  Dispatch  Company  in  cars 
of  the  Illinois  Ontral  Railroad,  and*  other 
railroads,  for  shipment  north  and  west.  The 
fruit  being  of  a  character  which  would  per- 
ish and  become  unsalable,  if  not  handled 
promptly,  the  method  of  marketing  and  ship- 
ment was  to  obtain  sales  throughout  the 
territory  in  which  the  company  operated, 
through  Its  agents,  in  advance  of  the  arrival 
of  a  shipment.  If  the  entire  cargo  had  been 
sold  in  advance  in  car  load  lots,  the  cars 
were  Immediately  billed  to  the  different  pur- 


*Fer  other  eaaes  see  nm*  t6plo  and  section  NUMBER  In  D«c  *  Am.  Digs.  U07  to  date,  A  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


4G 


122  XOHTHWESTERN  REPORTEB. 


(Neb. 


ohasfirs,  at  the  time  of  leaving  New  Orleans. 
As  It  could  not  always  be  known  exactly 
wbeu  >a  shipload  would  arrive,  and  as  the 
loaded  cars  were  ready  to  start  from  the 
port  of  New  Orleans  shortly  after  the  ar^ 
rival  of  the  ship,  It  would  frequently  happen 
that  not  all  of  the  car  loads  would  have  been 
sold  when  the  shipment  was  ready  to  leave 
New  Orleans.  In  that  case  the  cars  were 
started  north  without  a  fixed  destination, 
and  for  each  car  a  bill  of  lading  In  duplicate 
was  Issued,  with  the  consignee  and  destina- 
tion left  blank,  but  the  custody  of  these  bills 
of  lading  was  retained  by  the  agent  of  the 
railroad  In  New  Orleans  until  Instructions 
could  be  given.  Cars  shipped  In  this  man- 
ner were  said  to  be  "rolling,"  and  are  so  re- 
ferred to  in  the  testimony.  It  was  the  pur- 
pose of  the  fruit  company  to  find  buyers  for 
these  cars  before  they  reached  the  first  di- 
verting point  of  the  railroad,  and,  when  this 
was  done,  the  office  of  the  fruit  company  In 
New  Orleans  was  notified  by  wire,  and  there- 
upon the  agent  of  therallroad  was  directed  to 
insert  the  name  of  the  purchaser  as  consignee 
and  the  place  of  destination.  Instructions 
would  then  go  from  the  railroad's  office  in 
New  Orleans  to  the  proper  railroad  division, 
to  divert  the  car,  and  deliver  it  according  to 
such  instructions." 

About  5  o'clock  on  the  morning  of  Novem- 
ber 7,  190C,  the  shipment  in  question  left 
New  Orleans  for  the  north  on  the  Illinois 
Central  Railway,  but  at  that  time  the  bill 
of  lading  did  not  disclose  the  destination  of 
the  car  or  the  name  of  the  consignee.  Know- 
ing the  car  was  "rolling,"  as  that  term  has 
been  described,  defendant  by  an  oral  order 
directed  R.  B.  Thompson,  plaintiff's  agent  at 
Omaha,  to  wire  plaintiff  an  offer  of  $1:70  a 
hundredweight,  November  8,  1906,  "if  fruit 
green  and  In  good  condition."  The  order 
was  immediately  accepted  by  plaintiff  at  New 
Orleans,  and  notice  thereof  was  at  once  com- 
municated to  defendant.  By  direction  of 
plaintiff  the  name  of  defendant  as  consignee 
was  promptly  inserted  in  the  bill  of  lading, 
which  had  been  previously  issued,  and  it 
was  then  mailed  to  him  at  Council  Bluffs, 
where  he  received  it  November  12,  1906,  the 
date  of  the  arrival  of  the  car.  There  is 
proof  that  the  bananas  should  have  reached 
their  destination  November  10th,  and  that 
the  delay  In  transportation  may  have  been 
sufficient  to  ripen  the  fmlt.  Plaintiff  Insists 
that  the  sale  was  controlled  by  the  following 
contract,  which  appears  In  the  back  of  a 
book  entitled,  "Cipher  Code  and  Uniform 
Conditions  Governing  Sales  for  Use  In  Writ- 
ing Orders  to  and  Receiving  Notifications 
from  Fruit  Dispatch  Company": 

"In  conformity  with  similar  announce- 
ments heretofore  made,  the  Fruit  Dispatch 
Company  has  established  the  following  uni- 
form conditions  to  govern  all  purchases  of 
bananas  and  other  fruit  from  It: 

''(1)  All  bananas  and  fruit  are  sold  by  the 


Dispatch  Company  delivered  t.  o.  t».  freight 
cars  at  the  seaboard,  with  the  exception  of 
special  sales  provided  for  in  clanse  No.  11 
hereof.  After  delivery  to  the  carrier  at  the 
seaboard  all  bananas  and  fruit  are  at  tDTo 
sole  risk  of  the  purchaser.  Every  order  for 
or  sale  of  bananas  or  fruit  given  or  made 
after  the  same  shall  have  been  shipped  at 
the  sea  board,  shall  relate  back  to  the  time 
of  such  shipment  and  shall  have  the  sam& 
force  and  effect  In  every  respect  as  If  given 
or  made  prior  to  such  shipment 

"(2)  The  certificate  of  the  official  weigher, 
respecting  the  weight  of  the  bananas  or 
fruit  In  any  given  car  upon  shipment  at  the 
seaboard,  shall  be  final  and  conclusive  upon 
both  parties. 

"&)  Unless  the  contrary  is  clearly  speci- 
fied in  writing,  every  order  for  bananas  or 
fruit  given  to  the  Dispatch  Company  shall 
be  understood  to  contain  the  request  that  a 
messenger  be  furnished  to  accompany  the 
banqnas  or  fruit  purchased  for  the  benefit 
of  the  purchaser.  The  Dispatch  Company 
at  all  times  shall  have  the  option  of  provid- 
ing such  messenger  or  not  Whenever  a 
messenger  shall  accompany  a  car  or  cars,  be 
will  be  Instructed  to  look  after  the  Interests 
of  the  purchasers,  and  accordingly  will  be 
subject  to  all  Instructions  of  the  purchasers 
respecting  their  bananas  or  fruit  respective- 
ly. In  the  absence  of  such  instructions,  the 
messenger  will  conform  to  the  general  rule.s 
and  regulations  established  by  the  Dispatch 
Company,  and  to  such  special  orders  as  the 
Dispatch  Company  may  give  on  behalf  of 
the  purchaser  in  any  case.  The  receipt,  cer- 
tificate, or  statement  of  a  messenger  respect- 
ing the  amount,  quality  and  condition  of  the 
fruit  which  he  is  to  accompany  given  in 
writing  and  signed  by  him  at  the  time  of 
shipment  at  the  seaboard,  shall  be  conclu- 
sive and  final  as  to  all  matters  therein  con- 
tained, upon  both  the  Dispatch  Company  and 
the  purchaser. 

"(4)  Any  purchaser  may  furnish  his  own 
messenger  to  accompany  his  bananas  or 
fruit,  and  every  such  messenger  shall  have 
authority  to  accept  bananas  and  fmlt  for 
the  purchaser,  and  all  receipts  and  state- 
ments respecting  such  bananas  and  fruit, 
signed  by  such  messenger,  shall  be  bindlni; 
upon  the  purchaser. 

"(5)  The  Dispatch  Company  will  employ 
and  pay  all  messengers  furnished  by  It  as 
aforesaid  for  account  of  the  respective  pur- 
chasers, and  hereby  guarantees  that  the 
charges  to  the  purchasers  for  the  services 
of  such  messengers  shall  not  exceed  one  dol- 
lar per  car  to  the  respective  diverting  points 
established  by  the  Dispatch  Company,  an<l 
beyond  snch  diverting  points  shall  not  ex- 
ceed five  dollars  a  day  and  extra  railroad 
fares,  any  fraction  of  a  day  la  excess  of 
twelve  hours  being  counted  a  full  day.  Mes- 
sengers may  be  paid  by  the  Dispatch  Com- 
pany, and  such  payments  shall  be  reimbursed 
by  the  purchasers  upon  receipt  of  bills  ren- 


Digitized  by  VjOOQ  l€ 


Xeb.) 


FRUIT  DISPATCH  CO.  v.  GILIKSKY. 


47 


ilered  therefor,  bnt  the  failure  of  the  Dis- 
patch Comptmy  to  render  any  |3uch  bills  or 
to  collect  such  payments  shall  not  Impair  or 
affect  any  of  the  terms  or  conditions  hereof. 
It  is  further  expressly  understood  and 
agreed  that,  without  increasing  the'  cost  of 
inessengGrs  to  the  purchasers  above  the 
amounts  hereinbefore  stated,  the  Dispatch 
Company  may,  for  the  purpose  of  harlng 
suitable  messengers  ready  for  serrlce  at  all 
times,  pay  the  messengers  greater  amounts, 
or  may  employ  them  upon  salary. 

"(6)  The  purchasers  shall  bear  all  loss  on 
account  of  damage  or  deterioration  of  ba- 
nanas and  fruit  after  shipment  at  the  sea- 
board, arising  from  any  cause  whatsoever, 
and  without  altering  or  affecting  this  provi- 
sion, the  messengers  or  the  Dispatch  Com- 
pany may  place  any  cars  of  fruit  in  any  store- 
honse  of  shelter  for  the  purpose  of  regulat- 
ing the  temperature  or  ventilation  thereof, 
or  for  any  other  purpose,  and  in  so  doing, 
the  Dispatch  Company,  may  assume  the  cus- 
tody of  any  bananas  or  fruit,  either  directly 
or  through  instructions  to  any  messenger, 
from  the  carriers  temporarily  without  any 
liability  to  the  Dispatch  Company  for  any- 
thing that  may  happen  or  be  done  to  the 
bananas  or  fruit  In  consequence  thereof. 

"(7)  The  Dispatch  Company  agrees  prop- 
erly to  Investigate  every  claim  made  as  here- 
inafter provided  and  will  make  prompt  and 
fair  adjustment  thereof,  if  fojind  meritori- 
ous. The  purchaser,  however,  shall  in  every 
Instance  pay  to  the  Dispatch  Company  the 
full  amount  of  invoice  without  any  deduc- 
tion whatever,  and  shall  abide  by  the  deci- 
sion of  the  Dispatch  Company  with  respect 
to  any  claim,  and  accept  in  full  satisfaction 
thereof  any  allowance  made  by  the  Dispatch 
Company.  No  such  allowance,  for  whatever 
cause  made,  shall  have  the  effect  of  impair- 
ing or  affecting  any  of  the  provisions  hereof, 
nor  shall  it  constitute  any  precedent  for  any 
future  claim. 

"(8)  Notice  of  every  claim  against  the  Dis- 
patch Company  must  be  given  to  its  resident 
manager  at  the  place  where  the  order  was 
given,  immediately  after  the  arrival  at  its 
destination  of  the  car  containing  the  ba- 
nanas or  fruit  complained  of,  and  a  full 
statement  in  writing  of  the  basis  of  every 
such  claim  must  be  filed  with  such  resident 
manager  within  twenty-four  hours  there- 
after. In  default  of  such  notice  or  written 
statement,  the  Dispatch  Company  shall  have 
the  option  of  disregarding  any  such  claim. 

"(9)  All  notices  of  claims  filed  with  such 
resident  managers  will  be  forwarded  to  the 
Dispatch  Company  in  New  York  City  for  in- 
vestigation and  decision.  No  representation 
rir  agreement  made  by  any  resident  manager 
as  to  the  rejection  or  allowance  of  any  claim 
wUl  be  binding  upon  the  Dispatch  Company. 

"(10)  Purchasers  shall  be  bound  to  pay  all 
freight  and  other  charges  from  shipment  at 
the  seaboard  unless  a  special  arrangement 
i^hall  be  made  respecting  the  payment  of 


such  freight  in  any  given  case,  but  the  as- 
sumption or  payment  of  freight  by  the  Dis- 
patch Company  shall  not  affect  the  delivery 
at  the  seaboard  as  herein  provided. 

"(11)  Special  sales  may  be  made,  after  ar- 
rival of  bananas  or  fruit  at  the  final  destina- 
tion, to  purchasers  personally  inspecting 
and  accepting  the  same  on  the  spot. 

"(12)  EJvery  order  given  to  or  for  the  Dis- 
patch (Company  whether  by  telephone,  tele- 
graph, in  writing,  or  otherwise,  shall  l>e  re- 
garded as  being  made  under  and  subject  to 
the  terms  and  conditions  herein  contained. 
Every  purchase  from  the  Dispatch  Ck)mpany 
of  bananas  or  fruit,  and  every  sale  thereof 
by  it,  shall  be  upon  and  subject  to  all  the 
terms,  conditions,  and  provisions  herein  con- 
tained in  every  respect,  unless  waived  In  a 
writing  signed  by  the  president  or  general 
manager  of  the  Dispatch  Company,  it  being 
expressly  stated  and  understood  that  no 
officer,  employe,  or  representative  of  the  Dis- 
patch Company,  except  only  the  president 
or  the  general  manager,  has  any  authority 
to  make  any  contract  or  sale  of  bananas  or 
fruit  except  upon  and  subject  to  the  said 
terms,  conditions  and  provisions. 

"Fruit  Dispatch  Company, 
"By  John  Evans,  General  Manager. 

"Approved: 

"A.  W,  Preston,  President" 

Receipt. 

"6-28,  1905. 

"Received  from  the  Fruit  Dispatch  Com- 
pany Code  Book  No.  605  containing  the 
terms,  conditions,  and  provisions  governing 
purchases  from  and  sales  by  the  Fruit  Dis- 
patch Company.  The  undersigned  hereby  as- 
sents to  the  same  and  notifies  and  directs 
the  Fruit  Dispatch  Company  that  every  or- 
der hereafter  given  to  it  or  to  any  of  its 
officers  or  employes,  for  the  purchase  of 
bananas  or  fruit,  by  the  undersigned,  shall 
be  deemed  and  construed  to  refer  to  and  con- 
tain the  'Uniform  Conditions  Governing 
Sales,'  as  set  forth  In  the  said  code  book,  on 
pages  55  to  59  thereof,  as  part  of  the  terms 
of  such  order,  without  any  further  reference, 
and  hereby  further  and  expressly  agrees 
with  the  Fruit  Dispatch  Company  that,  in 
consideration  of  the  acceptance  from  the  un- 
dersigned of  any  order  or  orders  for  bananas 
or  fruit,  all  sales  of  bananas  and  fruit  from 
the  Fruit  Dispatch  Company  to  the  under- 
signed, shall  be  under  and  subject  to  the 
said  terms,  conditions,  and  provisions  in 
every  respect  The  undersigned  agrees  to 
return  the  said  code  book  at  any  time  on  de- 
mand. Witness  the  hand  and  seal  of  the  un- 
dersigned the  day  and  year  above  written. 
Signed,  sealed  and  delivered  in  our  presence. 
[Two  witnesses.]  B.  GiUnslty.'' 

Plaintiff  received  the  foregoing  receipt  by 
mall,  when  It  was  detached  from  the  mut- 
ter preceding  it  but  a  copy  In  blank  follows 
the  formal  conditions  of  sale  in  the  back  of 
the  code  book  Introduced  In  evidence.     By 


Digitized  by  VjOOQ  l€ 


48 


122  NORTHWESTERN  REPORTER. 


(Neb. 


definite  proTlslons  in  paragraph  12  the  terms 
of  the  contract  were  made  applicable  to  all 
sales  to  defendant,  and  could  not  be  changed 
or  waived,  except  by  a  writing  signed  by  the 
president  or  general  manager.  There  is  no 
proof  of  such  a  writing.  Defendant  insists, 
however,  that  he  is  not  bound  by  any  of  the 
terms  of  the  document  quoted,  and  that  the 
parties  never  entered  Into  a  contract  under 
which  he  was  compelled  to  "accept  the  ba- 
nanas. The  first  point  argued  in  support  of 
the  propositions  stated,  if  correctly  under- 
-stood.  Is  that  the  signing  and  mailing  of  the 
receipt  did  not  make  the  conditions  of  sale 
contractuaj  obligations  of  defendant.  Plain- 
tiff procured  the  receipt  in  response  to  let- 
ters mailed  to  defendant,  and  the  latter  In- 
sists he  Is  not  bound  by  the  contract,  because 
it  was  concealed  In  the  back  of  the  code  book, 
was  not  mentioned  in  plaintifTs  letters,  and 
'  w^as  not  embodied  In  the  receipt.  The  terms 
of  the  contract  and  the  manner  of  procuring 
it  are  severely  criticised  by  defendant 
PUintiff's  letters,  when  viewed  in  the  light 
of  the  record,  do  not  disclose  any  element 
of  fraud  in  procuring  the  receipt.  The  let- 
ters refer  directly  to  the  code  l)ook,  and  its 
<-ontents  are  indicated  by  the  following  words 
which  appear  in  bold  type  on  the  cover: 
■"Uniform  Conditions  Governing  Sales." 
PlaintifTs  last  letter  to  defendant  on  the  sub- 
ject contains  the  following  request:  "If  you 
are  not  going  to  sign  the  receipt  and  return 
it,  we  will  ask  that  yon  return  both  the  re- 
-celpt  and  the  lK>ok."  During  the  month  of 
June,  1905,  plaintiff  wrote  defendant  three 
letters  in  regard  to  the  code  book,  and  for- 
warded the  book  Itself  by  registered  mail. 
The  hazardous  nature  of  the  business  of 
supplying  northern  markets  with  perishable 
fruits  from  the  tropics  suggests  an  honest 
motive  for  the  repeated  demands  for  the  re- 
•celpt,  and  for  the  exacting  terms  of  the  con- 
tract A  contrary  motive  Is  not  shown  by  any 
fact  proved.  Defendant  was  a  customer  of 
plaintiff.  He  was  a  wholesale  dealer  in  trop- 
ical fruits,  and  can  scarcely  have  been  ig- 
norant of  the  methods  adopted  by  plaintiff 
for  Its  own  protection.  The  receipt  Itself 
Identifies  the  contract,  and  is  an  acknowledg- 
ment that  defendant  received  the  code  book, 
that  It  contained  the  terms,  conditions,  and 
provisions  governing  all  purchases  by  him, 
and  that  he  assented  to  the  same. 

The  position  that  defendant  is  not  bound 
by  the  contract  because  Its  terms  were  not 
made  a  part  of  his  receipt  is  also  untenable. 
Parties  may  make  a  contract  in  writing  with- 
out inserting  all  of  its  terms  In  a  single  In- 
strument A  contract  may  be  made  by  let- 
ter. In  such  a  case  the  material  parts  of  the 
correspondence  constitute  the  agreement  of 
tlie  parties,  and  all  writings  on  the  same 
subject  should  be  construed  as  one  instru- 
ment Collyer  v.  Davis,  72  Neb.  887,  101 
N.  W.  1001.  It  Is  not  necessary  that  both 
parties  act  at  the  same  time.  Esmay  v. 
Oroton,  IS  111.  483.    For  the  purpose  of  iden- 


tifying a  written  Instroment,  and  of  accept- 
ing the  terms  thereof,  a  receipt  may  perform 
the  office  of  a  letter. 

Defendant  further  insists  that  he  never 
saw  the  letters ;  that  he  did  not  know  of  the 
existence  of  the  contract  when  he  was  sued ; 
that  he  never  signed  the  receipt ;  that  he  did 
not  authorize  any  one  to  sign  it  for  him; 
and  that  his  name  was  used  without  author- 
ity. Defendant's  name  was  signed  to  the 
receipt  by  his  son  Sam,  but  It  is  urged  that 
the  latter  acted  without  knowing  the  contents 
of  the'  code  book,  and  without,  the  knowledge 
or  consent  of  bis  father.  That  defendant 
was  bound  by  the  act  of  his  son  was  shovm 
by  a  general  verdict,  as  well  as  by  a  special 
finding.  The  trial  court  submitted  to  the 
Jury  this  interrogatory:  "Do  you  find  from 
the  evidence  that  the  contract  contained  In 
the  code  book  and  the  receipt  for  the  same 
were  executed  by  the  defendant  through  his 
son  Sam  Glllnsky,  as  his  agent?"  "Yes" 
was  the  answer  of  the  Jury,  and  it  settles 
that  question,  If  the  finding  is  supported  by 
sufficient  evidence.  Defendant  could  not 
read  or  write  the  English  language.  Much 
of  his  correspondence  was  intrusted  to  his 
son,  who  was  a  high  school  graduate.  De- 
fendant placed  him  In  his  store,  where  he 
was  permitted  to  open  and  answer  mail, 
and  where  he  participated  In  his  father's 
business.  In  his  own  brief  defendant  says: 
"Sam  was  a.  clerk  in  his  father's  place  of 
business,  buying  a  car  of  fruit  now  and  then, 
and  once  did  write  to  the  Dispatch  Company 
that  he  was  authorized  to  do  some  buying." 
In  the  position  in  which  defendant  placed 
his  son  the  latter  received  and  answered  a 
letter  containing  a  demand  for  the  receipt 
for  the  code  book.  In  that  position  he  signed 
his  father's  name  to  the  receipt.  This  is  at 
least  some  evidence,  in  connection  with  sur- 
rounding circumstances,  that  the  son  had  ap- 
parent authority  to  act  for  his  father  in  the 
manner  in  which  he  did  act.  In  reply  to  let- 
ters directed  to  defendant  at  his  regular 
place  of  business  plaintiff  procured  the  re- 
ceipt by  due  course  of  mall,  and  had  a  right 
to  presume  the  letters  were  answered,  and 
the  receipt  signed,  by  the  person  addressed; 
there  being  nothing  to  indicate  the  contrary. 
Violet  V.  Rose,  39  Neb.  660,  58  N.  W.  216: 
People's  National  Bank  v.  Gelsthardt,  55 
Neb.  232,  75   N.  W.  582;    Helwig  v.  Aula- 

baugh,  83  Neb. ,  120  N.  W.  162.    There  is 

evidence  that  one  of  plaintifTs  agents  was 
informed  by  defendant  that  the  son  was 
"running  the  banana  end  of  the  business." 
In  relating  what  took  place  between  one  of 
plaintiff's  agents  and  defendant  as  to  pur- 
chasing a  car  of  fruit  defendant  testified: 
"I  said  my  son  is  outside.  Go  and  talk  with 
him.  If  he  wants  to  buy,  it  is  all  well  and 
good."  It  was  also  shown  by  documentary 
and  oral  proofs  that,  pursuant  to  the  terms 
of  the  contract  quoted,  a  claim  for  damaged 
fruit  was  made  out  by  the  son  in  the  name  of 
defendant,  and  paid  In  full  by  plaintiff.    An 


Digitized  by  VjOOQ  l€ 


ntbi. 


FEUIT  DISPATCH  CO.  t.  GILINSKY. 


49 


examination  of  the  entire  record  leads  to  the 
conclusion  that  there  Is  sufficient  evidence  to 
costaln  a  finding  that  the  son  had  apparent 
■nthorlty  to  act  for  defendant,  and  that  his 
condact  atTected  plalntifT  as  an  innocent 
third  part7,  within  the  meanlnc  of  the  role 
that  "a  principal  is  bound  by  the  acts  of  his 
■gent,  not  only  when  performed  within  the 
Kope  of  bis  actual  or  implied  authority,  bat 
wben  within  the  scope  of  apparent  author- 
ity conferred  upon  him  by  the  principal." 
Johnston  t.  Milwaukee  &  Wyoming  Invest- 
ment Co.,  46  Neb.  480,  64  N.  W.  1100. 

The  original  contract  in  writing  and  the 
oral  order  for  the  car  of  fruit  were  Iowa 
contracts,  and  to  defeat  a  recovery  defendant 
pleaded,  and  now  urges,  the  Iowa  statute  of 
frands  as  a  defense.  He  also  insists  there 
was  no  delivery  to  him.  These  points  will 
be  considered  together.  Under  the  statute 
of  Iowa  contracts  which  must  be  in  writ- 
ing and  signed  by  the  party  charged  include 
"^oee  in  relation  to  the  sale  of  personal 
property,  when  no  part  of  the  property  la  de- 
livered, and  no  part  of  the  price  is  paid." 
Defendant  did  not  sign  a  written  memoran- 
dom  in  ordering  the  fruit,  and  asserts  there 
was  no  delivery  to  him  within  the  meaning  of 
the  foregoing  provision.  He,  therefore,  con- 
dodes  the  case  Is  within  the  Iowa  statute  of 
frands.  Whether  this  point  is  well  taken 
iepen6a  apon  the  qnestlon  of  delivery.  If 
delivery  to  the  carrier  was  delivery  to  de- 
fmdant,  or  If  the  fruit,  after  delivery  to  the 
carrier,  was  transferred  to  defendant  by  the 
bill  of  lading  when  plalntifT  accepted  the 
order,  the  case  is  not  within  the  Iowa  stat- 
Qte.  In  Leggett  v.  Collier,  89  Iowa,  144,  66 
N.  W.  417,  the  Supreme  Court  of  Iowa  said: 
"In  the  case  at  bar  there  was  no  undertaking 
by  the  vendor  to  deliver  the  goods  at  the 
place  of  business  of  the  defendant  firm,  nor 
did  the  vendee  designate  a  special  carrier  by 
irhom  the  delivery  should  be  made.  In  the 
absence  of  such  designation  and  undertaking 
the  rule  la  that  a  delivery  to  the  common  car- 
rier, in  the  usual  and  ordinury  course  of 
business,  transfers  title  and  possession  of  the 
property  to  the  vendee,  subject,  as  we  have 
said,  to  the  exercise  by  the  vendor  of  the 
right  of  stoppage  in  transit  •  •  •  It  is 
said  that  there  was  no  acceptance  of  the 
goods,  and  hence  the  case  is  within  the  stat- 
ute of  frauds.  Under  our  statute  the  deliv- 
ery of  goods  under  a  contract  of  sale,  to  a 
common  carrier  in  the  usual  course  of  trans- 
portation, is  sufficient  to  take  the  case  out  of 
the  statute.  Code,  {{  3663,  3664.  In  this 
respect  our  statute  seems  to  be  different  from 
that  of  New  York,  where  both  delivery  and 
acceptance  are  required." 

The  statute  and  opinion  cited  were  intro- 
duced in  evidence,  and  control  the  decision  on 
this  branch  of  the  defense.  The  name  of  de- 
fendant as  consignee  was  inserted  in  the  bill 
of  lading  November  8,  1906,  and  it  was 
promptly  mailed  to  him  upon  receipt  of  his 
order.  A  messenger  who  was  in  diarge  of 
122X.W.-4 


the  car  testified  the  bananas  on  that  date 
were  green  and  in  good  condition,  and  that 
the  temperature  of  the  car  was  properly  reg- 
ulated. His  report  was  introduced  in  evi- 
dence, and  shows  the  same  facts.  The  first 
paragraph  of  the  contra«t« -.  containing  the 
uniform  conditions  governing  sales,  provides: 
"After  delivery  to  the  carrier  at  the  seaboard 
all  bananas  and  fruit  are  at  the  sole  risk  of 
the  purchaser.  Every  order  for  or  sale  of 
bananas  or  fruit  given  or  made  after  the 
same  shall  have  been  shipped  at  the  sea- 
board,  shall  relate  back  to  the  time  of  such 
shipment  and  shall  have  the  same  force  and 
effect  in  every  respect  as  If  given  or  made 
prior  to  such  shipment."  The  law  applicable 
to  the  proofs  and  contract  is  well  settled. 
Mobile  Fruit  &  Trading  Co.  v.  McGulre,  81 
Minn.  232,  83  N.  W.  833,  was  a  suit  to  recover 
the  balance  of  the  purchase  price  of  a  car  of 
bananas  shipped  from  Mobile,  Ala.,  to  St. 
Paul,  Minn.  Green  and  fancy  bananas  were 
ordered  by  wire.  When  delivered  to  the  car- 
rier at  Mobile,  the  fruit  was  green  and  fancy, 
but  did  not  arrive  at  St  Paid  in  that  condi- 
tion. The  consignee  refused  to  pay  the  pur- 
chase price  in  full,  on  the  ground  that  hta 
order  required  delivery  of  the  fmit  In  a  green 
and  fancy  condition  at  St  PauL  The  con- 
signor insisted  that  delivery  to  the  carrier  at 
Mobile  was  delivery  to  the  consignee.  In 
sustaining  a  recovery  for  the  balance  of  the 
purchase  price  the  Supreme  Court  of  Minne- 
sota announced  the  following  rule:  "If  no 
place  of  delivery  is  specified  in  the  contract 
of  sale,  and  there  are  no  circumstances  show- 
ing a  different  intent,  the  general  rule  Is 
that  the  articles  sold  are  to  be  delivered  at 
the  place  where  they  are  at  the  time  of  the 
sale,  and  that  their  delivery  to  the  proper 
carrier  Is  a  delivery  to  the  buyer,  and  that 
the  title  passes  to  him  subject  to  his  right  of 
inspection  and  rejection  of  the  goods  on  ar- 
rival, if  found  not  to  be  in  accordance  with 
the  contract  The  buyer,  however,  unless 
otherwise  agreed,  assumes  the  risk  of  deterio- 
ration in  the  goods  necessarily  Incident  to 
the  course  of  transportation." 

The  general  rule  that,  in  absence  of  an 
agreement  to  the  contrary,  a  delivery  to  the 
carrier  is  a  delivery  to  the  consignee  has 
been  announced  by  this  court?  Butts  v.  Hen- 
sey,  73  Neb.  421,  102  N.  W.  1011;  McKee  v. 
Wild;  62  Neb.  9,  71  N.  W.  ■958;  Havens  v. 
Grand  Island  Light  ft  Fuel  Co.,  41  Neb.  153, 
69  N.  W.  681.  It  follows  that  plaintiff's  re- 
covery was  not  defeated  by  the  Iowa  statute 
of'  frauds,  and  that  the  facts  proved  In  con- 
nection with  the  agreements  of  the  parties 
warrant  the  conclusion  that  there  was  a  de- 
livery to  defendant  as  early  as  November  8, 
1906,  when  the  fruit  was  green  and  In  a  good 
condition,  as  ordered. 

Some  of  the  instructions  are  criticised  as 
confilctlng,  and  others  as  containing  repeti- 
tion prejudicial- to  defendant.  Other  rullng.s 
of  the  court  In  giving  and  in  refusing  instruc- 
tions are  also  assigned  as. error.    A  discus- 


Digitized  by  VjOOQ  l€ 


50 


122  NORTHWESTEUN  REPOKTER. 


(Neb. 


Kiou  of  these  questions  separately  would 
make  tbe  oplDlon  too  long,  but  all  such  rul- 
ings have  been  carefully  coosidered  in  con- 
nection with  tbe  entire  charge-  Tbe  result 
of  tbe  investigation  is  tbat  no  error  requiring 
a  reversal  of  tbe  judgment  of  the  trial  court 
has  been  found. 
Affirmed. 


PITCH  T.  MARTIN.    (No.  15,863.) 
(Supreme  (Tourt  of  Nebraska.    June  23,  1909.) 

1.  Evidence  (|  99*)— Appeal  and  Esbor  (J 
970*)  —  Rexevancy  —  Collatebal  Facts  — 
Discretion  or  Loweb  Coubt— Review. 

The  relevancy  of  a  collateral  fact,  to  be 
used  as  the  basis  of  legitimate  argument,  is  not 
to  be  determined  by  the  conclasTveness  of  the 
inferences  it  may  afford  with  reference  to  the 
litigated  tect.  If  it  tends  in  a  reasonable  de- 
gree to  elucidate  the  inquiry,  it  is  relevant,  but 
the  exercise  of  the  trial  court's  discretion  in 
excluding  such  evidence  as  too  remote  will  rare- 
ly be  overruled. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  {  123 ;  Dec.  Dig.  S  99  :*  Appeal  and 
Error,  Cent  Dig.  {  3849;   Dec.  Dig.  §  970.»] 

2.  Trial  (f  4S*)— Reception  or  Evidence- 
Evidence  Inadmissible  in  Past. 

Where  counsel  offer  "each  and  every  mem- 
orandum shown"  in  several  books  concerning 
transactions  covering  several  years,  unless  all 
of  the  entries  are  competent  and  relevant,  they 
should  be  excluded  if  opposing  counsel  interpose 
a  proper  objection. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  i  120;  Dec.  Dig.  |  4&*] 

3.  Evidence  (J  555*)- Examination  of  Ex- 
perts— Knowledge  of  Facts. 

If  an  expert  witness  testifies  that,  unless 
certain  facts  are  known  to  him,  his  opinion  upon 
the  subject  concerning  which  he  is  about  to  tes- 
tify will  not  be  accurate,  it  is  not  error  to  re- 
ject that  opinion,  where  it  a6Srmatively  ap- 
pears that  some  of  those  facts  are  unknown  to 
the  witness. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Ont.  Dig.  i  2376;    Dec.  Dig.  S  353.»] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Douglas  Coun- 
ty;   Sutton,  Judge. 

On  motions  by  each  party  for  a  rehearing. 
Motions  overruled. 

For  former  opinion,  see  119  N.  W.  26. 

McGllton  &  Gaines,  for  appellant.  A.  S. 
«'hurcbill  and  Byron  O.  Burbank,  for  appel- 

PER  CURIAM.  Each  party  to  tbls  record 
requested  a  reversal  of  the  Judgment  of  tbe 
district  court,  and  it  was  not  thought  neces- 
sary to  determine  every  question  presented 
in  tbeir  respective  briefs.  Each  party  asks 
for  a  rehearing  to  the  end,  that  alleged  er- 
rors in  our  opinion  may  be  corrected,  and 
certain  assignments  and  cross-assignments 
of  error  considered.  PlaintlET  suggests  tbat 
we  determine  the  admissibility  of  the  testi- 
mony of  Walker,  Clarkson,  Bastedo,  Raller, 


Walcott,  and  Judge  Estelle  concerning  cer- 
tain transactions  with  Major,  wherein  Fitch 
was  not  known.  Walker  was  a  real  estate 
broker.  Clarkson  represented  Major  as  his 
attorney  when  the  latter  was  arrested  on  a 
charge  of  embezzlement  Judge  Estelle  was 
counsel  for  the  deceased  in  a  lawsuit,  and 
Haller  represented  the  defendants  in  saia 
action.  Bastedo  is  a  builder  and  contractor, 
and  constructed  two  houses  in  Omaha  for 
Major,  and  also  knew  about  the  transfer  of 
stock  in  the  Delphlne  Mining  Company  tu 
the  deceased.  Walcott  was  associated  witU 
said  mining  company  as  its  attorney,  whiU* 
Major  was  Interested  therein,  and  also  ai*- 
peared  for  htm  In  a  lawsuit  All  of  saiU 
transactions  occurred  during  the  time  plain- 
tiff claims  tbat  he  was  employed  by  the  year 
as  Major's  attorney.  Plaintiff  relies,  in  some 
degree,  upon  proof  of  continued  professional 
services  for  tbe  deceased  to  establish  an  an  - 
nual  renewal  of  tbe  contract  he  claims  to 
have  made  years  before  with  Major,  to  serve 
him  professionally  for  a  stipulated  sum  per 
annum.  Tbe  evidence  upon  the  main  issue 
is  not  conclusive  and  competent  evidence  of 
collateral  facts  or  circumstances  reasonably 
tending  to  establish  the  probability  or  Im- 
probability of  the  fact  In  issue,  if  not  too 
remote,  is  relevant.  Farmers'  State  Bank 
of  Central  City  v.  Yenney,  73  Neb.  338.  lOJ 
N.  W.  617;  Blomgren  v.  Anderson,  48  Neb. 
240,  67  N.  W.  186.  It  is  largely  within  tbe 
discretion  of  the  trial  court  to  say  what 
proof  of  collateral  facts  is  or  is  not  too  re- 
mote in  a  particular  case. 

In  Stevenson  v.  Stewart,  11  Pa.  307,  de- 
fendant asserted  that  his  signature  had  been 
forged  to  the  bill  in  suit.  The  plaintiff  was 
tbe  administrator  of  tbe  deceased  payee.  1 1 
was  held  competent  for  plaintiff,  in  rebut- 
tal, to  prove  tbat  about  the  date  of  the  note 
defendant  had  borrowed  money  from  other 
persons.  Mr.  Justice  Bell  reasons  tbat  the 
competency  of  a  collateral  fact,  to  be  usikI 
as  the  basis  of  a  legitimate  argument,  is 
uot  to  be  determined  by  the  conclusiveness 
of  the  Inference  It  may  furnish  with  refer- 
ence to  a  'litigated  fact,  but  that,  if  it  tends 
In  a  slight  degree  to  elucidate  tbe  Inquiry, 
or  to  reasonably  assist  in  a  determination 
probably  founded  on  truth,  it  should  be  re- 
ceived. See,  also,  section  61,  Gillet  on  In- 
direct and  Collateral  Evidence.  It  does  not 
require  argument  to  demonstrate  that  if 
Fitch  were  employed  by  the  year  as  Major's 
attorney.  Major  Clarkson,  Judge  Btetelle,  and 
Mr.  Walcott  would  not  ordinarily,  during; 
tbat  period,  be  attending  to  Major's  litiga- 
tion. Of  course  the  inference  would  not  be 
conclusive;  the  circumstances  would  be  sub- 
ject to  explanation,  and  different  minds 
might  honestly  draw  diverse  conclusions 
from  the  facts  stated. 

We  are  not  inclined  to  substitute  our  Judg- 
ment for  that  of  tbe  trial  court  in  paaslne 


•For  otiior  cages  se«  ume  tople  and  section  NUMBBR  In  D«c.  ft  Am.  Digs-  U07  to  date,  t  Reimrter  lodeXM 


Digitized  by 


L-oogle 


Neb.) 


FITCH  V.  MARTIN. 


61 


upon  the  relevancy  of  tbis  collateral  evi- 
dence. If  the  case  were  on  trial  before  ns, 
we  would  not  receive  the  testimony  of  Mr. 
Haller,  because  it  merely  corroborates  Jndge 
KsteUe  apon  an  admitted  fact.  The  trans- 
actions proved  by  Bastedo  did  not  necessa- 
rily Involve  the  services  of  a  lawyer,  and  the 
testimony  of  that  witness  with  propriety 
might  be  excluded.  So  much  of  Walker's 
testimony  as  did  not  refer  to  the  examina- 
tion of  abstracts  of  title  for  Major,  or  con- 
tradict in  some  manner  plalntlfTs  testimony 
with  reference  to  the  services  he  claims  to 
hjive  rendered  the  deceased  with  reference 
to  specific  tracts  of  land,  might,  with  profit, 
be  excluded.  Upon  the  next  trial  of  this 
oase  the  evidence  may  assume  such  a  form 
as  to  make  relevant  some  of  the  evidence 
tliat  now  seems  irrelevant,  but  sufficient 
has  been  said  to  guide  the  trial  court  in  the 
disposition  of  this  feature  of  the  case. 

2.  It  is  urged  that  the  question  referred 
to  in  the  second  subdivision  of  the  opinion 
was  not  answered  by  the  witness.  The  opln- 
loD  does  not  so  state.  The  trial  court  did 
not  sustain  defendant's  objections  to  the 
interrogatory.  The  question  was  not  with- 
drawn, and  the  ruling  referred  to  permitted 
tbe  witness  to  answer  subsequent  questions 
on  the  assumption  that  the  services  testified 
to  were  performed  for  Major.  Questions 
lilce  the  following  were  thereafter  propound- 
ed: "You  may  now  answer  the  original 
qnesti<m  with  reference  to  lots  in  Credit 
Ponder  addition,"  etc.  The  Interrogatories 
referred  back  to  the  quoted  question,  and 
we  remain  of  the  opinion  that  error  was 
committed  in  the  examination  of  plaintiff. 

It  is  argued  that  plaintiff  had  been  cross- 
examined  upon  all  of  the  entries  in  the 
memorandum  books,  which  were  received 
In  evidence  over  defendant's  objections.  We 
have  t>een  unable  to  find  any  cross-examina- 
tion with  reference  to  the  following  entry 
Id  the  1894  memorandum:  "Monday  17. 
Agreement  with  Major  to  reduce  contract 
iiervlces  to  $400.00  per  year  to  begin  Jan. 
1,  "OS."  To  the  suggestion  that  defendant's 
counsel  should  have  severed  their  objections 
so  as  to  refer  only  to  the  entries  concern- 
ing which  plaintiff  had  not  been  cross-exam- 
ined, it  Is  sufficient  to  «ay  that  plaintiff's 
offer,  although  purporting  to  be  several  as 
to  each  item,  was  omnibus  In  character.  Op- 
posing counsel  would  have  been  compelled 
to  check  each  item  in  several  books  pur- 
porting to  record  as  many  years'  transac- 
tions, if  they  were  to  direct  their  objections 
specifically  to  the  Incompetent  or  irrelevant 
evidence  included  in  the  offer.  The  law 
does  not  place  that  bnrden  upon  the  cross- 
examiner.  It  was  the  duty  of  plalntUTs 
cooDsel  to  include  within  his  offer  only  com- 
petent evidence.  If  he  did  not,  the  objec- 
tion should  have  been  sustained.  Hldy  v. 
Mnrray,  101  Iowa,  65,  08  N.  W.  1138;  Ham- 
berg  V.  St.  Paul  Fire  &  Marine  Ins.  Co.,  68 
Minn.  335,  71  N.  W.  388. 


3.  Defendant  argues  that  the  evidence 
does  not  justify  instmctlou  numbered  9. 
which,  in  substance,  informs  the  Jurors  that 
if  they  find  from  the  evidence  that  about 
August  17,  1896,  Major  Indorsed  his  name  on 
a  certain  note,  and  delivered  it  to  plaintiff 
to  be  applied  on  tbe  claim  in  suit,  the  trafts- 
actlon  would  toll  the  statute  of  limitations. 
It  is  shown  by  the  testimony  of  Karbnch 
that  some  time  preceding  July,  18SC,  iro 
heard  a  conversation  in  plaintiff's  office  bi>- 
tween  Fitch  and  Major  concerning  said  note: 
that  he  noticed  Major's  name  on  the  back  of 
said  Instrument,  which  was  thereafter  trans- 
ferred by  plaintiff  to  Karbach's  father  for 
office  rent,  and  later  returned  to  Fitch  n» 
worthless.  Plaintiff  was  familiar  with  \ti> 
jor's  signature,  and  testified  that  it  was  writ- 
ten upon  the  back  of  the  note.  He  did  not 
say  that  he  saw  Major  sign  his  name  there- 
to, and  his  testimony  was  admissible.  Miii- 
nls  V.  Abrams,  105  Tenn.  662,  58  S.  W.  Gi5. 
80  Am.  St.  Rep.  913.  The  note  is  credited 
under  date  of  August  17,  1896,  in  Fltcti's 
account  against  Major,  and  is  charged  bacli 
to  the  latter  December  12,  1900.  Mrs.  Dun- 
ham also  testified  that  she  heard  Fitch  and 
Major  talk  about  the  note,  and  subsequent 
to  August,  1896,  saw  the  latter  looking  over 
Fitch's  book  account,  against  him,  and  that 
he  expressed  satisfaction  therewith.  Coun- 
sel refer  to  facta  and  circumstances  touch- 
ing the  credibility  of  plaintiff  and  Mrs.  Dun- 
ham, but  that  argument  is  for  the  jury, 
and  not  this  court,  to  consider.  The  Instnu-- 
tion  responded  to  the  evidence,  and  is  not 
erroneous. 

Instruction  numbered  11,  with  respect  to 
the  $30  credit,  is  correct,  unless  it  Is  conced- 
ed that  plaintiff  and  Mrs.  Dunham  are  nor 
to  be  believed.  The  jury,  and  not  tbis  court, 
should  pass  upon  the  credibility  of  the  wit- 
nesses. 

4.  It  Is  urged  that  the  district  court  should 
have  admitted  a  transcript  of  plaintiff's 
claim  as  it  appeared  in  the  county  court,  b<>- 
cause  by  comparison  with  the  petition  here- 
in It  will  be  found  that  items  are  Includeil 
in  the  petition  that  were  not  brought  to  the 
county  court's  attention.  Reliance  is  plac- 
ed on  Paxton  v.  State,  60  Neb.  460,  81  N.  W. 
383,  80  Am.  St.  Rep.  689,  to  support  this  as- 
signment. In  the  cited  case  a  suit  bad  been 
instituted  in  Douglas  county  upon  a  bond  of 
a  former  state  treasurer,  and  in  Lancaster 
county  a  like  suit  was  commenced  upon  an- 
other bond  given  by  that  official.  Tbe  state- 
ments in  the  petition  filed  in  Lancaster  couit- 
ty  amounted  to  an  admission  that  part  of 
the  claim  made  in  the  Douglas  county  suit 
was  unfounded,  and  hence  it  was  held  that 
the  defendants  in  the  last-named  case  should 
have  been  permitted  during  the  trial  to  in- 
troduce in  evidence  a  certified  copy  of  the 
petition  filed  in  Lancaster  county.  Although 
there  is  an  allegation  in  the  petition  in  the 
instant  case  that  the  services  plaintiff  allegCK 
he  {performed  for  Major  were  worth  more 


Digitized  by  VjOOQ  IC 


62 


122  NORTHWESTERN  REPORTER. 


(Ketk 


than  the  snms  charged  therefor,  the  action 
did  not  proceed  as  one  npon  a  quantum  mer- 
uit, nor  to  recover  separately  for  each  Item 
of  said  services,  but  to  recover  a  Judgment 
for  services  alleged  to  have  been  performed 
during  several  years  upon  an  employment 
to  pay  Pitch  therefor  by  the  year.  Proof  of 
services  rendered  was  admitted  to  prove 
that  something  was  actually  done  by  plaln- 
ticr  for  Major,  and  for  the  purpose  of  rais- 
ing the  presumption  that  such  employment 
continued  according  to  alleged  preceding  ar- 
rangements between  the  parties  for  payment 
by  the  year  for  professional  services.  In 
view  of  the  issues  actually  presented,  there 
was  bnt  little  probative  value  in  the  facts 
referred  to,  and  the  exclusion  thereof  was 
not,  and  their  admission  would  not  have 
been,  prejudicial  error  to  either  party. 

6.  Defendant  argues  with  much  earnest- 
ness that  we  should  determine  whether  the 
court  erred  in  excluding  the  deposition  of 
Ross,  the  chemist  It  was  shown  by  the 
witness'  preliminary  examination  that  he 
bad  taken  a  course  in  chemistry  in  the  Uni- 
versity of  Pennsylvania,  and  had  associated 
with,  and  worked  under,  a  consulting  chemist 
residing  in  Chicago,  who  gave  his  attention 
to  legal  and  manufacturing  interests.  Ross 
had  also  studied,  and  had  practical  expe- 
rience with  reference  to  determining  from 
tests,  the  age  of  handwriting,  and  whether 
or  not  dissimilar  Inks  had  been  used  in  trac- 
ing different  writings.  It  was  shown  that 
the  witness  had  subjected  entries  on  eadi 
page  of  the  Major  account  In  plaintiflT's  book 
to  chemical  tests,  and  had  applied  the  same 
reagent  to  entries  in  corresponding  years  Vu 
the  accounts  in  the  same  book  against  oth- 
er people.  The  court  refused  to  permit  the 
witness  to  testify  that  in  his  opinion  the  en- 
tries for  the  various  years  in  the  Major  ac- 
count were  all  made  with  the  same  ink  and 
at  or  about  the  same  time,  and  that  in  some 
instances,  for  corresponding  years,  the  en- 
tries in. the  other  accounts  in  the  same  book 
were  made  with  different  ink.  Defendant 
argues  that  the  Major  account  was  all  pre- 
pared at  the  same  time  for  the  purpose  of 
furnishing  false  evidence  to  bolster  up  plain- 
tiff's claim,  and  that  the  testimony  of  Ross 
tends  strongly  to  establish  that  fact 

It  is  stated  by  some  writers  that  chemical 
testa  .furnish  infallible  evidence  of  tbe  iden- 
tity OK  dissimilarity  of  inks  employed  in 
tracing  different  writings.  Psge  270,  Ames 
on  Forgery.  Proof  of  this  collateral  fact 
as  compared  with  the  further  one  that  tbe 
entries  in  other  accounts  were  made  with 
different  colored  ink,  in  the  discretion  of  the 
court  was  proper  to  go  to  the  Jury;  but,  if 
Id  tb*  court's  opinion  thtt  evidence  was  too 


remote,  or  the  proper  foundation  as  to  the 
skill  of  the  witness,  or  the  conditions  sur- 
rounding the  test  had  not  been  shown,  it 
was  not  error  to  exclude  it  We  are  of  opin- 
ion that  sufficient  foundation  was  not  proved 
to  admit  the  witness'  opinion  as  to  the  age 
of  the  entries  considered.  The  witness' 
cross-examination  was  before  the  court  when 
it  ruled  on  the  offers  made,  and  it  was  advis- 
ed therefrom  that  a  heavy  stroke  would  fade 
sooner  than  a  lighter  one;  that  an  entry 
made  with  a  corroded  pen  would  differ  from 
one  inscribed  with  a  bright  instrument; 
writings  exposed  to  the  light  would  fade 
much  more  rapidly  than  those  contained  in 
a  closed  book;  and  tJiat  the  witness  could 
not  arrive  at  a  satisfactory  and  an  accurate 
conclusion  unless  he  had  knowledge  of  all 
of  the  facts  tending  to  preserve  or  deterio- 
rate the  writings.  None  of  the  aforesaid 
facts  were  shown.  Mr.  Ames,  in  his  work 
on  Forgery,  pp.  265,  266,  states  that  it  is 
impossible  to  determine  with  accuracy  the 
age  of  writings  by  chemical  tests.  That  one 
may  determine  approximately,  "but  to  tell 
by  the  ink  which  of  two  writings  is  tlie  old- 
er, when  one  is  but  two  months  and  the  oth- 
er two  years,  is,  as  a  rule,  impossible." 

Counsel  for  defendant  request  us  to  de- 
termine assignments  numbered  132,  133,  and 
134  in  their  petition  in  error.  They  relate  to 
the  testimony  of  plaintiff  identlfjrlng  his  col- 
lection register  and  the  entries  therein.  It 
l)ecame  material,  during  tbe  trial,  to  estab- 
lish tbe  dates  upon  which  plaintiff  received 
money  on  a  Judgment  recovered  by  Larimore 
against  Mickel  Bros.  Plaintiff  was  attorney 
for  Larimore,  and  the  evidence  developed  a 
claim  that  Major  was  surety  for  costs  and 
owned  the  Judgment  in  that  case.  The  col- 
lection register  exhibits  a  history  of  said  liti- 
gation and  the  dates  that  payments  were 
made  on  the  Judgment  All  of  the  entries  in 
said  register,  save  and  except  those  refer- 
ring to  Major,  could  be  lawfully  identified 
by  plaintiff,  and,  if  relevant,  be  received  in 
evidence.  Labaree  v.  Klosterman,  33  Neb. 
160,  40  N.  W.  1102.  The  record  gives  some 
countenance  to  the  thought  that  counsel  con- 
strue the  opinion  filed  in  this  case  in  74  Neb. 
538,  104  N.  W.  1074,  to  hold  that  an  Interest- 
ed witness,  in  his  suit  against  tbe  represen- 
tative of  a  deceased  person,  may  testify  to 
facts  we  held  be  was  Incompetent  to  testify 
to  in  Martin  v.  Scott  12  Neb.  42,  46,  10  N. 
W.  632.  No  such  construction  should  be 
placed  on  Judge  Letton's  opinion.  We  still 
adhere  to  the  principles  of  law  stated  in 
Martin  v.  Scott,  supra. 

Having  disposed  of  those  assignments 
counsel  insist  should  be  determined,  the  mo- 
tions'for  a  rehearing  are  overruled. 


Digitized  by  LjOOQIC 


Neh) 


WILBBR  T.  REED. 


63 


WILBER  T.  REED  et  al.     (No.  16,062.) 
(Sapreme  Court  of  Nebiaska.    'June  25,  1909.) 

L  COBSTITUTIOHAI,   LAW    (8    281*)— DUE   PSO- 

CE68  or  Law— EmNEiTT  Domain. 

That  part  of  section  8605  of  chapter  37 
«f  Cobbey's  AnnoUted  Statutes  of  1007  au- 
theminc  the  citj  council  of  cities  of  the  first 
cIms  to  appoint  a  second  set  of  assessors,  which 
requires  them  to  proceed  on  the  daj  following 
their  appointment  to  meet  at  the  place  desig- 
nated for  the  meeting  of  the  first  board  of  as- 
sessors, and  proceed  without  farther  notice  to 
appraise  the  damages  to  the  owners  of  prop- 
erty condemned  for  park  purposes,  is  unconsti- 
tatlonai,  because  it  amounts  to  the  taking  of 
private  property  for  public  nse  without  due 
process  of  law. 

[Ed.  Note.— For  other  cases,  see  Constitution- 
al Law,  Dec.  Dig.  I  281.*] 

2.  EiiiSBHT  Domain   (J  273*)— Injunction- 
Due  Process  of  Law. 

ProceedingB  for  the  condemnation  of  prop- 
erty under  the  provisions  above  set  forth  may 
be  enjoined. 

(Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  Sf  743-764;  Dec.  Dig.  {  27.3.«1 

(Syllabus  by  the  Court.) 

3.  CONSTITCTIONAL   LAW    (J    251*)— DUK   PBO- 

CE88  or  Law. 
Due  process  of  law  in  the  most  compre- 
hensive sense  implies  the  right  of  the  person  af- 
fected thereby  to  be  present  before  the  tribunal 
which  pronounces  judgment  upon  the  question 
of  life,  liberty,  or  property,  to  be  heard  by 
testimony  or  otherwise,  and  to  have  the  right 
of  controverting  by  proof  every  material  fact 
which  bears  on  the  question  of  right  in  the  mat- 
ter involved. 

[Ed.  Note.— For  other  cases,  see  Constitution- 
al Law.  Cent.  Dig.  §  732 ;   Dec.  Dig.  i  251.» 

For  other  definitions,  see  Words  and  Phrases, 
ToL  8,  pp.  2227-2256;    vol.  8,  p.  7644.] 

Appeal  from  District  Court,  Gage  County; 
Pemberton,  Judge. 

Action  by  Eunice  H.  Wllber  against 
Charles  L  Reed  and  others.  Judgment  for 
defendants,  and  plaintiff  appeals.  Reversed 
and  judgment  entered. 

Hazlett  &  Jack,  for  appellant  A.  H.  Kldd 
and  R.  W.  Sabln,  for  appellees. 

BARNES,  J.  This  action  was  brought  in 
the  district  court  of  Gage  county  against 
Charles  L.  Reed,  mayor  of  the  cl^  of  Bea- 
trice, and  the  other  defendants  as  members 
of  the  city  council,  to  enjoin  tbem  from  ap- 
propriating the  plaintilTs  property,  to  wit, 
lot  4,  block  36,  of  said  city,  for  park  pur- 
poses. When  the  action  was  commenced,  a 
temporary  restraining  order  was  Issued  which 
was  kept  In  force  until  the  final  hearing,  at 
which  time  the  district  court  upon  the  Issues 
joined  found  generally  in  favor  of  the  de- 
fendants, dissolved  the  restraining  order, 
and  dismissed  the  plaintiff's  petition.  From 
that  judgment,  plaintiff  has  appealed. 

The  grounds  urged  for  a  reversal  are: 
First,  lack  of  jurisdiction  to  make  the  ap- 
praisement, for  the  reason  that  the  apprais- 
ers were  not  disinterested  freeholders;    sec- 


ond, want  of  notice  to  the  plaintiff  of  the 
appointment  of  the  second  set  of  appraisers, 
and  of  the  time  and  place  at  which-  they 
were  to  meet  and  appraise  the  plaintiff's 
property;,  third,  the  unconstitutionality  of 
the  provision  of  the  city  charter  authorizing 
the  mayor  and  council  to  reject  the  appraise- 
ment of  property  taken  for  park  purposes, 
and  appoint  a  second  set  of  appraisers  to  act 
without  further  notice  to  the  landowner; 
fourth,  the  Invalidity  of  the  ordinance  under 
which  the  defendants  acted;  fifth,  because 
the  city  had  no  available  funds  to  pay  for 
the  land  in  question.  An  examination  of 
the  record  satisfies  us  that  the  proceedings 
of  the  city  council  were  regular  and  conform- 
ed substantially  to  the  provisions  of  the  city 
charter,  and  that  a  fund  was  provided  for 
the  payment  of  plaintiff's  damages.  There- 
fore plaintiff's  right  to  the  relief  prayed  for 
by  her  petition  depends  entirely  upon  the 
question  of  the  validity  of  the  statute  above 
mentioned.  The  record  discloses  that  the 
city  council,  after  considering  several  loca- 
tions for  a  public  park,  decided  to  locate 
the  same  on  the  north  half  of  block  36,  and 
by  resolution  appropriated  and  set  apart  lots 
1,  2,  3,  and  4  of  that  block  for  that  purpose. 
A  committee  was  appointed  by  the  council 
to  purchase  the  above-described  lots,  if  pos- 
sible, and  It  appears  that  they  succeeded  in 
purchasing  all  of  the  property  except  lot  4, 
which  Is  owned  by  the  plaintiff.  They  were 
unable  to  come  to  an  agreement  with  her, 
and  therefore  recommended  that  an  ordi- 
nance be  passed  appropriating  her  property 
for  park  purposes.  The  ordinance  was  regu- 
larly passed,  and  appraisers  or  assessors,  as 
they  are  designated  by  the  statute,  were  ap- 
pointed to  assess  the  value  of  the  plalntifTs 
property.  One  of  the  assessors  refuse4  to 
serve,  and  another  was  appointed  in  his  place. 
The  appraisers  met  at  the  time  and  place 
named  Id  the  ordinance,  and  were  about  to 
proceed  with  their  appraisement,  when  they 
were  restrained  from  so  doing  by  an  order 
of  the  district  court.  It  further  appears 
that  the  restraining  order  was  thereafter  dis- 
solved, and  the  city  council  thereupon  acting 
under  the  provisions  of  section  8605  of  Cob- 
bey's  Annotated  Statutes  of  1907,  appoint- 
ed three  other  assessors  to  appraise  plain- 
tiff's damages ;  that  sncb  appraisement  was 
made ;  and  that  the  plaintiff  thereafter  com- 
menced this  suit  to  restrain  the  defendants 
from  taking  ber  property  under  the  proceed- 
ings above  set  forth. 

Section  8605,  supra,  which  is  a  part  of  the 
charter  of  the  defendant  city,  provides,  in 
substance,  that  when  it  shall  become  neces- 
sary for  the  city  to  appropriate  private  prop- 
erty for  the  use  of  parks,  etc.,  such  appropri- 
ation shall  be  made  by  ordinance,  and  there 
shall  be  appointed  by  the  council  in  the  ordi- 
nance making  the  appropriation  three  dis- 


*ror  other  cases  see  same  toplo  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  LjOOQ  l€ 


G4 


122  NORTHWESTERN  REPORTER. 


(Nel.. 


Interested  freeholders  of  tbe  city  to  assess 
the  damages,  who  after  taking  an  oath  to 
discharge  their  duty  faithfully  and  impar- 
tially shall  on  the  day  provided  In  said  ordi- 
nance view  the  property  appropriated,  and 
oa  the  same  day,  or  as  soon  thereafter  as 
practicable,  shall  vaa.ke,  sign,  and  return  to 
the  council  in  writing  a  Just  and  fair  as- 
sessment of  the  damages  for  each  piece  or 
'lot  of  property,  which  in  whole  or  in  part  is 
so  appropriated.  It  also  provides  that  the 
ordinance  appropriating  property  shall  be 
iMiblished  in  a  newspaper  published  in  the 
<-ity  and  of  general  circulation  therein  as 
much  as  80  days  before  the  meeting  of  the 
assessors;  that  such  publication  shall  be 
sufficient  notice  'to  nonresident  owners  and 
parties  interested,  but,  where  the  owners  in 
fee  reside  In  the  city,  the  clerk  shall  deliver 
to  each  of  them,  or,  when  the  owner  cannot 
be  found,  to  some  persons  at  their  respective 
residences,  the  newspaper  containing  the  or- 
dinance, and  shall  at  the  same  time  call  tbe 
attention  of  the  iiersou  to  whom  the  same  Is 
delivered  to  the  ordinance  published  in  the 
paper;  and  that  these  facts  shall  be  certl- 
tled  to  by  the  city  clerk  upon  the  book  in  bis 
office  in  which  tbe  ordinance  Is'  recorded. 
The  charter  further  provides,  as  follows: 
"At  the  next  regular  meeting  of  the  council 
after  such  assessment,  the  council  may  va- 
cate such  assessment,  if  unjust,  and,  if  so 
vacated,  or  In  case  of  a  failure  to  obtain  the 
assessment,  for  any  cause,  the  city  council 
Ity  resolution  may  appoint  three  other  as- 
sessors; and,  In  that  case,  such  new  assess- 
ors shall,  on  the  day  following  their  appoint- 
ment, without  further  notice,  meet  at  the 
place  fixed  by  the  ordinance  for  meeting  of 
the  assessors,  and  *  *  •  shall  proceed 
ns  provided  for  the  first  board  of  appraisers." 
It  is  plaintiff's  contention  that  the  provision 
of  the  charter  above  quoted  is  unconstitu- 
tional and  void,  because  no  notice  of  the 
nppointment  of  the  second  set  of  appraisers 
or  the  time  and  place  of  their  meeting  is  re- 
quired thereby,  and  that  a  compliance  with 
this  provision  without  notice  would  deprive 
her  of  her  property  without  due  process  of 
law.  A  like  question  was  betore  the  Supreme 
C!6urt  of  New  York  in  the  case  of  the  People 
V.  Tallman,  36  Barb.  222.  There  a  commis- 
sioner of  higuways  instituted  proceedings 
for  a  reassessment  of  the  damages  sustained 
by  a  person  whose  land  had  been  taken  for  a 
public  road.  It  was  there  held  that  tbe  land- 
owner was  entitled  to  notice  of  the  Impan- 
eling of  the  Jury,  and  of  the  subsequent 
proceedings  before  them,  and  it  was  said: 
"The  spirit  and  Intention  of  the  act  in  di- 
recting the  Jury  to  hear  the  parties  and  their 
witnesses  require  that  the  parties  should 
have  notice  of  the  proceedings;  and,  inde- 
pendent of  anything  in  the  statute,  no  pro- 
ceeding affecting  Judicially  the  rights  of  an- 
other occurring  In  his  absence  without  notice 
cnn  be  valid."  In  Rathbun  v.  Miller,  6  Johns. 
(N.  Y.)  281,  an  admeasurement  of  dower  was 


set  aside  because  the  tenant  had  no  notice 
of  the  application  to  tbe  surrogate  for  com- 
missioners, although  the  statute  did  not  pro- 
vide for  or  require  any  such  notice.  It  is 
contended  by  defendant's  counsel  that  the 
proceeding  Is  a  continuous  one ;  and  that  as 
the  plaintiff  had  the  notice  required  by  stat- 
ute of  the  first  steps  he  is  to  be  presumed 
to  have  notice  of  all  subsequent  steps.  It  Is 
manifest  that,  If  this  reasoning  be  sound,  the 
application  of  the  wholesome  principle  of 
general  Jurisprudence  above  stated  would  be 
of  no  avail  in  such  a  case.  It  would  be  of  lit- 
tle or  no  advantage  to  a  party  to  be  notified 
when  the  first  set  of  appraisers  would  meet 
if  be  was  not  to  be  informed  when  the  sec- 
ond set  of  appraisers  would  meet  so  that  be 
might  present  his  proof  and  be  heard  before 
them.  In  point  of  fact,  however,  this  Is  not 
one  continuous  Judicial  proceeding.  The  pas- 
sage of  the  ordinance  of  which  the  plaintiff 
was  notified  was  merely  the  first  step  to- 
wards constituting  the  tribunal  which  was 
to  pass  upon  her  rights.  Now,  the  statute 
makes  no  provision  for  notice  of  the  pro- 
ceeding to  constitute  the  second  tribunal, 
which  was  to  determine  a  question  affecting 
her  property,  and  requires  no  notice  of  the 
proceedings  of  the  second  tribunal  towards 
a  Judicial  examination  and  determination  of 
that  question.  In  this,  therefore,  the  statute 
seems  to  be  fatally  defective.  In  City  of 
Brooklyn,  87  Hun,  54,  83  N.  Y.  Supp.  8G9, 
It  was  said:  "Brooklyn  City  Charter,  tit.  14. 
i  51,  providing  that  any  bnilding  In  violatiou 
of  the  provision  as  to  fire  limits  may  be  re- 
moved, but  not  requiring  notice  to  be  given  to 
the  owner  of  such  building.  Is  void,  as  au- 
thorizing the  taking  of  private  property  with- 
out due  process  of  law,  and  the  objection  is 
not  obviated  by  giving  notice  to  the  owner." 
The  deprivation  of  property  without  duo 
process  of  law  is  Inhibited  by  both  the  fed- 
eral Constitution  and  tbe  Constitution  of  tliis 
state.  While  the  term  "due  process  of  law" 
niny  not  be  susceptible  of  a  precise  definition, 
which  will  include  all  cases,  yet  It  has  ever 
been  held  to  require  an  opportunity  to  bo 
heard.  Notice  of  some  kind  is  essential,  and 
because  there  is  no  provision  in  the  statute 
in  question  for  notice  or  an  opportunity  to 
be  heard  it  Is  violative  of  the  constitution- 
al provisions  for  the  protection  of  property 
rights. 

A  like  question  w^ns  before  the  Supremo 
Court  of  Wisconsin  in  Selfert  v.  Brooks,  34 
Wis.  443.  The  village  charter  of  the  village 
of  Wanpun  contained  provisions  attempting 
to  regulate  the  proceeding  to  determine 
whether  land  sought  to  be  condemned  for  a 
street  in  the  village  was  necessary  for  that 
purpose.  It  made  no  provision,  however,  for 
notifying  the  owner  of  the  time  and  place 
of  the  assembling  of  the  Jury.  It  was  held 
that  the  oml.sslon  rendered  the  act  as  to  that 
subject  unconstitutional,  and  that  the  pro- 
ceedings taken  under  it  were  wholly  void.  In 
deciding   the   question   Chief   Justice   DIxoii 


Digitized  by  VjOOQ  l€ 


Xeb.)     FARMERS'  CO-OP.  SHIPPING  ASS'N  v.  GEORGE  A.  ADAMS  GRAIN  CO.        53 


said:  "Ab  determined  in  Lamsden  ,t.  Mil- 
waukee, 8  Wis.  485,  the  proceeding  is  strictly 
iidversary;  the  corporation,  r^resenting  the 
imbllc,  being  the  party  on  the  one  side,  and 
the  person  whose  property  it  is  proposed  to 
take  the  party  on  the  other.  Where  such  is 
the  character  of  the  proceeding,  the  law  la 
most  Justly  unrelenting  in  its  abhorrence  and 
unalterable  in  its  condemnation  of  every  act 
or  step,  in  its  nature  final,  which  shall  be 
ilone  or  taken  ex  parte,  or  without  notice  to 
the  other  party,  where  such  notice  can  be 
f^iven.  It  will  not  tolerate  such  act  or  step, 
but  unhesitatingly  declares  it  void  upon  the 
broadest  and  most  obTious  grounds  of  natural 
reason  and  Justice.  •  ♦  •  That  every  man 
is  entitled  to  his  day  in  court,  and  must  hare 
It,  and  cannot  be  affected  in  bis  person  or  his 
property,  unheard  or  without  the  privilege 
!<ecnred  to  him  of  appearing  or  being  repre- 
wnted  in  his  own  defense,  If  he  so  desires,  is 
a  maxim  the  force  and  importance  of  which 
every  good  lawyer  appreciates,  and  one  which 
no  court  ever  surrenders."  State  ex  rel. 
Flint  V.  City  of  Fond  du  Lac,  42  Wis.  287, 
was  a  case  where  the  property  of  the  relator 
had  been  assessed  by  the  respondent  for  bene- 
fits resulting  from  a  certain  street  improve- 
ment. The  assessment  was  contested  on  the 
ground  that  the  statute  which  failed  to  pro- 
vide for  the  giving  of  personal  notice  to  the 
property  owner  was  unconstitutional,  and 
the  proceedings  were  therefore  void.  In  the 
opinion  in  that  case  we  find  the  following: 
"It  follows  from  these  views  that,  on  ac- 
oount  of  the  failure  of  the  charter  to  provide 
for  the  giving  of  personal  notice  to  the  owner 
of  the  property  of  the  time  and  place  of  the 
appointment  and  'meeting  of  the  Jury  to  in' 
quire  into  and  determine  the  necessity,  the 
proceedings  were  void,  and  were  properly 
vacated  by  the  circuit  court."  Due  process 
of  law  in  the  most  comprehensive  sense  im- 
plies the  right  of  the  person  affected  thereby 
to  be  present  before  the  tribunal  which  pro- 
nounces Judgment  upon  the  question  of  life, 
liberty,  or  property,  to  be  heard  by  testimony 
or  otherwise,  and  to  have  the  right  of  con- 
troverting by  proof,  every  material  fact  which 
bears  on  the  question  of  right  in  the  matter 
involved.  This  is  a  right  of  which  the  prop- 
erty owner  caimot  be  deprived  by  courts,  city 
i-ouncll,  or  even  by  the  Legislature  itself,  for 
any  act  which  authorizes  an  appropriation 
or  the  damaging  of  property  for  public  use  In 
any  manner,  or  by  any  person  or  persons, 
must  further  provide  for  compensating  the 
owner  of  the  proiwrty,  and  a  notice  of  the 
time  and  place  where  he  may  be  heard  upon 
the  question  of  the  amount  of  his  damages. 
McGavock  V.  City  of  Omaha,  40  Neb.  64,  58 
-N.  W.  543. 

It  is  insisted  that  the  provision  for  an  ap- 
peal contained  in  the  statute  in  question 
obviates    the   constitutional    objection,    and 


amounts  to  due  process  of  law.  To  our  minds, 
however,  this  provision  renders  it  ail  the 
more  necessary  that  the  property  owner 
should  have  notice  of  the  time  and  place  of 
the  appraisement,  for,  without  such  notice,  he 
might  by  lapse  of  time  and  without  his 
knowledge  be  deprived  of  the  right  of  appeal, 
and  in  such  case  he  would  have  no  redress. 
We  are  therefore  of  opinion  that  so  much 
of  section  8C05  as  provides  that  the  second 
set  of  assessors  appointed  to  appraise  the 
damages  to  proijerty  condemned  for  park 
purposes  shall  on  the  day  following  their  ap- 
pointment, without  further  notice,  meet  at 
the  place  fixed  by  the  ordinance  for  the  meet- 
ing of  the  assessors  and  proceed  to  appraise 
the  damages  to  such  property,  is  unconstitu- 
tional and  void.  We  are  satisfied  that  the 
provision  above  mentioned  does  not  affect  the 
remainder  of  the  section,  which  we  hold  to 
be  a  valid  exercise  of  legislative  power.  It 
follows  that,  in  order  to  lawfully  condemn 
the  plaintiff's  property,  the  mayor  and  city 
council  must  institute  new  proceedings  for 
that  purpo&e. 

For  the  foregoing  reasons,  the  Judgment  of 
the  district  court  is  reversed,  and  the  de- 
fendants are  enjoined  from  appropriating 
plaintiff's  property  under  the  proceedings 
complained  of. 

Judgment  accordingly. 


FARMERS'  CO-OP.   SHIPPING   ASS'N  v. 

GEORGE   A.    ADAMS    GRAIN    CO. 

(No.  15.763.) 

(Supreme  Court  of  Nebraska.    June  2o,  1909.) 

1.  COBPOBATIONS   (§  399*)— MAN  AG  EB   OF  COR- 
PORATION— Apparent  Authobitt. 

The  agent  or  manager  of  a  corporation, 
organized  under  the  laws  of  this  state  for  the 
purpose  of  buying  grain  and  live  stock  direct 
from  producers  and  selling  and  shipping  the 
same  to  the  general  markets  and  the  operation 
of  grain  elevators  to  be  used  incidentally  for 
that  purpose,  has  no  apparent  authority  to  en- 
gage in  speculations  in  grain  and  mess  pork  up- 
on the  Chicago  Board  of  Trade,  and  where  the 
evidence  shows  that  no  actual  authority  was 
given  the  agent  to  engage  in  such  transactions, 
and  they  were  carried  on  without  the  knowl- 
edge or  consent  of  any  of  the  officers  of  the  cor- 
poration, it  will  not  be  bound  thereby. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent  Dig.  i  1602;    Dec.  Dig.  {  399.*] 

2.  Corporations  (S  382*)— Corporate  Pow- 
ers—Speculativk  Transactions. 

A  corporation  so  organized,  with  an  au- 
thorized capital  stock  of  $10,000  and  a  limitn- 
tiou  to  the  amount  of  its  indebtedness  to  $2,000. 
has  no  power  to  engage  in  speculative  transec- 
tions in  mess  pork  and  grain  upon  the  Chicago 
Board  of  Trade  amounting  in  a  single  day  to 
more  than  $40,000,  and  such  transactions  are 
ultra  vires  and  void. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent.  Dig.  {  1515 ;    Dec.  Dig.  {  382.*] 

3.  Gambling  TRANSACnons. 

The  transactions  in  question  examined,  and 
held,  to  be  gambling  transactions  within  the 


•For  otber  eases  sm  aam*  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  190T  to  date,  &  Reporter  Indexes 


Digitized  by  LjOOQIC 


66 


122  NORTHWESTERN  REPORTER. 


(Netn 


rule  announced  in  Rogen  Broa.  r.  Marriott,  69 
Neb.  759,  82  N.  W.  21. 

(Syllabus  by  the  Court) 

4.  Pkincipal  and  Agent  ({  99*)— "Appabent 

authobitt." 

The  "apparent  authority"  of  an  agent  ia 
inch  authority  as  the  acta  or  declarations  of  the 
principal  give  the  agent  the  appearance  of  pos- 
sessing. 

[Ed.  Note.^For  other  cases,  see  Principal  and 
Agent,  Cent.  Dig.  {  254;   Dec,  Dig.  {  99.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  1,  p.  441.] 

Appeal  from  District  Court,  Douglas  Coun- 
ty:  Sears,  Judge. 

Action  by  the  Farmers'  Co-operative  Ship- 
ping Association  against  the  George  A. 
Adams  Grain  Company.  Judgment  for  plain- 
tiff, and  defendant  appeals.    Affirmed. 

W.  J.  Council  and  W.  P.  Thomas,  for  ap- 
pellant   T.  J.  Mahoney,  for  appellee. 

BARNES,  J.  Action  to  recover  a  balance 
alleged  to  be  due  plaintiff  from  defendant 
on  account  of  grain  sold  and  delivered. 
There  was  a  Jury  trial,  and  at  the  close  of  aQ 
of  the  evidence  the  court  directed  the  Jury  to 
return  a  verdict  for  the  plaintiff,  and  the 
defendant  has  appealed. 

As  to  the  following  facts  there  is  no  con- 
flict in  the  evidence,  and  they  are  establish- 
ed beyond  dispute:  The  plaintiff  was  incor- 
porated according  to  the  laws  of  this  state, 
and  its  articles  of  incorporation  provided 
that  its  place  of  business  should  be  at  Gretna 
in  Sarpy  county.  Its  business  should  be  the 
buying,  selling,  and  shipping  of  grain  and 
live  stock  and  the  doing  of  such  things  as 
were  necessarily  incident  thereto.  That  its 
total  authorized  capital  stock  was  $10,000, 
and  that  the  amount  of  indebtedness  which 
it  was  authorized  to  contract  at  any  time 
was  limited  to  $2,000.  On  the  1st  day  of  De- 
cember, 1903,  plaintiff  employed  one  O.  C. 
Higbec  to  operate  and  manage  Its  grain  ele- 
vator situated  at  Gretna  and  to  perform  all 
work  iucldent  thereto;  the  contract  of  em- 
ployment specifying  the  incidents  and  details 
of  the  management  of  the  elevator.  That 
no  express  authority  was  ever  given  to  Hlg- 
l>ee  beyond  what  is  found  in  his  written 
contract  of  employment.  That,  although  the 
articles  of  incorporation  authorized  the  plain- 
tiff to  deal  in  live  stock,  it  never  availed  it- 
self of  that  power  and  never  dealt  in  any- 
thing but  grain.  That,  aside  fro^n  the  specu- 
lative transactions  in  question  herein,  plain- 
tiff never  dealt  in  futures,  margins,  or  board 
of  trade  transactions  of  any  kind  whatever 
and  never  transacted  any  business  except  the 
buying,  shipping,  and  handling  of  grain 
through  its  elevator  at  Gretna.  That  from 
the  12th  day  of  December,  1903,  to  the  10th 
day  of  August,  1904,  the  plaintiff  shipped 
and  sold  to  the  defendant  large  amounts  of 
grain  out  of  Its  elevator  at  Gretna  aggre- 
gating in  value  more  than  $18,000.     That 


against  those  shipments  the  plaintiff  mada 
drafts  on  the  defendant  from  time  to  time 
as  the  grain  left  its  elevator,  and  these  drafts 
were  paid;  but  whatever  amounts  the  grain 
realized  In  excess  of  the  drafts  were  not 
remitted  by  the  defendant  to  the  plaintiff 
except  the  sum  of  $19.48,  which  was  remit- 
ted about  the  last  of  August,  1904,  and  that, 
if  the  account  between  the  parties  is  limited 
to  the  grain  shipped  by  the  plaintiff  to  the 
defendant  and  the  money  received  by  draft 
or  otherwise  for  such  grain,  an  accounting 
between  them  would  leave  the  defendant  in- 
debted to  the  plaintiff  in  the  amount  for 
which  a  verdict  was  directed' and  Judgment 
was  entered  in  this  case. 

It  appears,  however,  that  the  defendant 
attempted  to  set  off  the  amount  which  it  ow- 
ed on  account  of  actual  shipments  of  g^ain 
by  another  account  growing  out  of  specula- 
tive transactions  on  the  board  of  trade,  some 
of  which  were  conducted  with  Higbee  in  bis 
own  name  and  others  with  him  in  the  name 
of  the  plaintiff.  It  further  appears:  That 
the  board  of  trade  transactions  commenced 
more  than  a  month  after  the  first  actual 
shipment  of  grain  by  the  plaintiff  to  the  de- 
fendant, and  that  they  were  originally  com- 
menced by  Higbee  in  his  own  name,  and  not 
in  the  name  of  the  plaintiff.  The  account 
shows  losses  to  Higbee  aggregating  $2ti8.To, 
and  this  accouQit  appears  to  have  been  bal- 
anced by  transferring  Higbee's  losses  to  the 
account  of  the  plaintiff.  In  this  manner  Hig- 
bee's accounts  were  squared  and  his  losses 
were  all  charged  on  the  defendant's  books 
against  the  plaintiff.  That  this  was  done 
without  Higbee's  consent,  but  later  on  such 
'Consent  was  obtained  from  him  ostensibly  in 
the  plaintiff's  name  and  for  the  plaintilTs 
account.  Thereafter  Higbee,  without  the 
knowledge  of  the  plaintiff,  conducted  a  large 
number  of  speculative  board  of  trade  deals 
with  the  defendant  In  the  name  of  the  plain- 
tiff. In  these  transactions  there  appears  to 
have  been  various  profits  and  losses  which 
the  defendant  carried  into  its  general  account 
with  the  plaintiff,  intermingling  such  items 
with  actual  shipments  of  grain  from  plain- 
tiff's elevator  at  Gretna.  A  great  many  of 
the  board  of  trade  transactions  were  in  mess 
pork,  while  the  others  were  in  grain.  The 
net  result  of  the  transactions  was  a  loss  of 
$2,544.48,  which  the  defendant  charged  on 
its  books  against  the  plaintiff.  This  net  item 
of  loss,  added  to  the  $268.75  lost  by  Higbee 
in  his  own  name,  amounts  to  a  total  of  $2,- 
813.23,  which  defendant  attempted  to  set  off 
against  the  amount  which  It  owed  the  plain- 
tiff for  actual  shipments  of  grain  which.  If 
set  off,  would  balance  the  account,  tad  this 
is  the  exact  amount  for  which  the  court 
directed  the  Jury  to  return  its  verdict,  plus 
Interest  from  the  date  of  the  commencement 
of  the  action. 

The  questions  which  are  presented  by  the 


*For  otber  cues  see  same  topic  and  lectlon  NUMBER  In  Dec.  t  Am.  Dig*.  1907  to  date,  ft  Reporter  Indexea 


Digitized  by  LjOOQIC 


Keb.)    FARMERS'  CO-OP.  SHIPPING  ASS'N  v.  GEORGE  A.  ADAMS  GRAIN  CO.        67 


record  are:  First,  did  HIgb«e  have  any  ac- 
tual or  apparent  authority  to  emhark  In 
the  board  of  trade  transactions  for  and  on 
bebalf  of  the  plaintiff,  such  as  would  estop 
It  from  repudiating  them?  Second,  were  the 
board  of  trade  transactions  within  the  scope 
«t  the  platntUTs  powers,  or  were  they  ultra 
Tires  and  void?  Third,  were  the  board  of 
trade  transactions  bona  fide  lawful  contracts, 
or  were  they  mere  gambling  transactions, 
(peculations  on  the  rise  and  fall  of  the  price 
of  grain  upon  the  future  market? 

As  bearing  upon  the  first  inquiry,  it  ap- 
pears beyond  dispute  that,  throughout  all  of 
the  transactions  above  described,  the  agent, 
Higbee,  concealed  from  his  employer,  the 
plaintiff,  the  fact  that  such  transactions  were 
taking  place.  It  further  appears  that  the 
plaintiff  had  an  auditing  committee  which 
met  regularly  every  month  and  went  over 
HIgbee's  books,  but  found  thereon  no  trace 
or  record  of  any  of  the  board  of  trade  trans- 
actions in  question,  that  Higbee  kept  a  reg- 
ister account  in  which  appeared  only  the 
transactions  growing  out  of  the  actual  ship- 
ments of  grain  from  the  Gretna  elevator,  and 
that  no  entry  of  any  kind  was  made  therein 
relating  to  said  speculative  deals.  It  also 
appears  that  Higbee  absconded  in  the  latter 
part  of  August,  and  on  the  25th  day  of  that 
month,  in  the  year  1904.  just  a  day  or  two 
before  he  left  the  state,  he  entered  upon  the 
plaintiff's  books  a  lump  credit  to  the  defend- 
ant of  $2,890.55,  which  was  the  first  entry 
of  any  of  the  transactions  in  question  whlch- 
appeared  upo&  the  plaintiff's  books.  After 
Higbee  absconded  he  sent  by  mail  the  key 
to  the  box  In  which  plaintiff's  books  of  ac- 
count were  kept  to  the  president  of  the  cor- 
poration, and  none  of  its  officers  or  directors 
had  any  knowledge  of  any  of  the  transactions 
In  dispute  until  they  opened  the  box  and  ob- 
tained possession  of  their  books  of  account. 
Now,  the  authority  given  by  the  plaintiff  to 
Higbee  is  found  In  his  written  contract  of 
employment.  The  language  of  this  contract 
is:  "The  party  of  the  second  part  [Higbee] 
has  this  day  covenanted  and  agreed  with  the 
party  of  the  first  part  [plaintiff]  to  operate 
and  manage  the  elevator  of  said  party  of  the 
first  part  situated  in  Gretna,  Xeb.,  and  to  per- 
form aU  work  Incident  to  said  operation  and 
management  *  *  * "  It  thus  appears 
that  the  plaintiff  never  gave  Higbee  any  ac- 
tnal  authority  to  engage  in  the  transactions 
in  dispute.  Under  this  contract  his  author- 
ity was  limited  to  managing  the  grain  ele- 
vator sitoated  at  Gretna,  and  as  incident  to 
tliat  management  be  would  have  the  power 
to  buy  grain  for  future  delivery  at  said  ele- 
vator and  advance  a  part  of  the  purchase 
price  thereon  to  responsible  parties;  but 
tbia  would  not  include  the  buying  of  grain 
on  margins  with  advancements  through  a 
br(Aer  to  parties  whose  identity,  as  well  as 
their  solvency,  would  be  utterly  unknown  to 
him.  The  contract  is  clear,  specific,  and  un- 
ambigaooB,  and  containa  all  of  Hlgbee's  ac- 


tual authority.  It  limited  that  authority  to 
the  management  and  operation  of  the  plaln- 
tllTs  elevator  at  Gretna.  It  gave  him  no  per- 
mission to  engage  in  speculations  on  the 
board  of  trade,  even  if  such  trades  had  been 
bona  fide  transactions.  The  authority  of  an 
agent  does  not  extend  to  any  matter  or  trans- 
action which  is  not  properly  incident  to  the 
management  of  the  ordinary  business  of  his 
principal.  Clark  &  Marshall  on  Private  Cor- 
porations, p.  2119.  We  are  therefore  of  opin- 
ion that  Higbee  had  no  actual  authority  to 
engage  in  the  transactions'  in  question  for 
and  on  behalf  of  the  plaintiff. 
/  This  brings  us  to  the  question  of  Hlgbee's 
(apparent  authority.  It  is  well  established 
that  the  authority  of  an  agent  cannot  be  es- 
tablished by  his  own  acts  and  declarations. 
Thus,  If  A.  declares  himself  the  agent  of  B., 
and  then  proceeds  to  enter  into  contracts  in 
B.'s  name,  this  Is  not  a  holding  out  by  B.  of 
A.  as  his  agent.  The  holding  out  is  done  by 
the  agent  himself.  Consequently,  when  we 
speak  of  the  apparent  authority  of  ait  agent 
as  binding  his  principal,  we  mean  such  au- 
thority as  the  acts  or  declarations  of  the 
principal  give  the  agent  the  appearance  of 
possessing./  Closely  related  to  this  doctrine 
of  apparent  authority,  and  really  a  part  of  it, 
is  the  doctrine  of  estoppel  under  which  a 
party  who  has  knowingly  permitted  others 
to  treat  one  aa  his  agent  will  be  estopped  to 
deny  the  agency.  Now,  what  did  plaintiff  do 
to  give  Higbee  any  appearance  of  authority  to 
embark  in  the  board  of  trade  deals?  The  evi- 
dence shows  that  it  hired  him  to  operate  and 
manage  its  elevator  at  Gretna  and  put  him  in 
charge  thereof,  and  that  is  all  that  it  did  in 
the  way  of  affirmatively  giving  him  an  ap- 
pearance of  authority.  Authority  to  operate 
the  elevator,  as  we  have  already  stated,  was 
no  authority  to  engage  in  the  transactions  in 
question.  It  is  elementary  that  an  estoppel 
to  question  the  acts  of  an  agent  can  arise 
only  from  a  knowledge  of  his  acts.  Now,  the 
evidence  in  this  case  shows  that  Higbee  kept 
an  account  with  the  defendant  on  the  books 
of  plaintiff.  That  account  dealt  with  the 
grain  actually  shipped  from  the  Gretna  ele- 
vator and  the  money  received  by  drafts 
against  that  grain,  'and  does  not  contain  a 
single  item  referring  to  the  board  of  trade 
transactions  until  the  25th  day  of  August, 
1904,  when  be  was  preparing  to  abscond. 
He  then,  for  the  first  time,  credited  the  ap- 
pellant with  $2,890.55  on  those  matters.  The 
books  also  show  that  he  carefully  concealed 
all  of  those  ventures  from  the  plaintiff.  It 
further  appears  that  the  plaintiff  had  never 
engaged  in  buying  grain  for  delivery  any- 
where except  at  its  elevator  at  Gretna,  or  in 
selling  any  grain  except  such  as  was  to  be 
delivered  out  of  that  elevator.  Again,  the 
plaintiff's  articles  of  Incorporation,  which 
were  open  to  public  Inspection,  disclosed  the 
full  extent  of  its  powers  and  showed  upon 
their  face  tliat  the  plaintiff  was  not  organiz- 
ed for  the  purpose  of  speculating  on  the 


Digitized  by  VjOOQ  l€ 


ns 


122  NORTHWESTERN  REPOBTER 


(Neb. 


board  of  trade;  that  Its  principal  buslneBS 
was  the  buying  and  selling  of  grain  and  the 
building  and  conducting  of  country  elevators 
nnd  the  business  incident  thereto.  The  plain- 
tiff's stationery 'used  by  Higbee  In  conduct- 
ing his  correspondence  with  the  defendant 
disclosed  the  fact  that  its  capital  stock  was 
only  $10,000.  and  that  the  amount  of  indebt- 
edness which  it  could  contract  at  any  time 
was  limited  to  $2,000,  and  yet  we  find  from 
the  evidence  that  the  deals  between  the 
plaintiff  and  the  defendant  entered  into  on 
the  4th  day  of  July,  1004,  If  consummated, 
would  amount  to  $44,487.50,  and  this  in  the 
name  of  a  concern  that  the  defendant  knew 
had  a  gross  capital  of  $10,000  and  whose  ar- 
ticles of  incorporation  limited  its  indebted- 
ness to  $2,000.  It  therefore  seems  clear  that 
Higbee  had  no  apparent  authority  to  engage 
in  the  transactions  in  question,  and  that  the 
defendant  was  chargeable  with  knowledge  of 
the  want  of  such  authority  on  his  part  For 
this  reason  alone,  if  for  no  other,  the  district 
c-ourt  properly  directed  the  verdict  for  the 
plaintiff. 

Our  determination  of  the  foregoing  ques- 
tion renders  it  unnecessary  for  us  to  decide 
any  of  the  other  questions  presented  by  the 
record.  We  may  say,  in  passing,  however, 
that  it  seems  quite  apparent  that  the  plaln- 
tiff,  under  its  articles  of  incorporation,  had 
no  power  to  engage  in  the  board  of  trade 
transactions  in  question;  that  they  were  ul- 
tra vires,  and  therefore  void.  We  may  fur- 
ther say  that  we  have  examined  the  question 
of  the  validity  of  those  transactions,  and  are 
satisfied  that  they  fall  clearly  within  the  rule 
announced  In  Rogers  v.  Marriott,  69  Neb. 
759,  82  N.  W.  21,  and  cases  there  cited,  and 
therefore  are  void  as  against  good  morals 
and  public  policy. 

For  the  foregoing  reasons,  the  Judgment 
of  the  district  court  is  atfirmcd. 

REESE,  C.  J.,  absent. 


STEVENS  V.  STATE.     (No.  15,990.) 
(Supreme  Court  of  Nebraska.    June  25,  1909.) 

1.  Indictment  and  Infobmation  (§  132*)— 
Election  Between  Counts  —  Same  Of- 
fense. 

Where  an  information  contains  two  counts 
charging  but  one  offense,  the  prosecutor  will 
not  be  required  to  elect  on  which  count  be  will 
rely  for  a  conviction.  Candy  v.  State,  8  Neb. 
485,  1  N.  W.  454- 

[Ed.  Note.— For  other  cases,  see  Indictment 
and  Information,  Cent.  Dig.  i  434;  Dec.  Dig. 
i  132.*] 

2.  Assault  and  Battebt  ({  85*)— Cbiminai, 
liesponsibiutt  —  evidence  —  admissi- 
BILITY. 

Where  one  charged  with  assault  and  stab- 
bing with  intent  to  wound  pleads  and  attempts 
to  prove  self-defense  as  a  justification,  the  state 
may  prove  the  relative  size  and  physical  strength 
of    the    parties,    together    with    the    weakened 


physical  condition  of  the  complaining  witness, 
as  tending  to  show  that  the  defendant  had  no 
reason  to  believe  himself  in  imminent  danger  of 
death  or  great  bodily  harm  at  the  time  he  com- 
mitted the  aasanlt. 

[Eid.  Note.— For  other  cases,  see  Assault  and 
Battery,  Cent  Dig.  t  133 ;   Dec.  Dig.  i  So.*] 

3.  ASSATTLT  AND  Battbbt  ({  86*)— Cbimihai. 
Responsibiutt  —  Eviokhcb  —  Admissi- 
BiLTrr. 

It  is  proper  In  such  a  prosecntion  to  ex- 
clude evidence  of  collateral  transactions  which 
do  not  warrant  or  justify  the  defendant  in  mak- 
ing the  assault. 

{EA.  Note. — For  other  cases,  see  Assault  and 
Battery,  Cent  Dig.  S  131 ;  Dec.  Dig.  %  86.*] 

4.  Assault  and  Battebt  ({  90*)— Cbiminai. 
Law  (I  1169*)— Cbiminal  Responsibilitt 
— Evidence  —  Admissibiutt  —  Habi(i.ess 
Ebbob. 

It  is  not  error  to  permit  the  physician  who 
attended  the  complaining  witness,  and  minister- 
ed to  him  after  he  was  stabbed  by  the  defend- 
ant, to  testify  as  to  the  nature  and  extent  of 
the  wound  inflicted,  together  with  his  treatment 
of  the  same. 

[Ed.  Note. — For  other  cases,  see  Assault  and 
Battery,  Cent.  Dig.  {  135;  Dec.  Dig.  I  90;* 
Criminal  Law,  Cent  Dig.  {  3137;  Dec.  Dig. 
I  1169.*] 

6.  Assault  and  Batteby  ((  85*)— Cbiminal 
Rerfonsibilitt  —  Evidence  —  Admissi- 
bilitt— Chabacteb  of  Pabtieb. 

In  such  a  case  the  defendant  Is  entitled  by 
way  of  justification  to  prove  the  general  repu- 
tation of  the  prosecuting  witness  in  the  com- 
munity where  he  resided  as  a  violent,  quarrel- 
some, and  dangerous  man;  but  he  is  not  en- 
titled to  prove  specific  acts  occurring  more  than 
10  years  previous  to  the  alleged  assault,  with 
which  the  defendant  had  no  concern. 

[Ekl.  Note.— For  other  cases,  see  Assault  and 
Battery,  Cent  Dig.  {  133;   Dec.  Dig.  {  85.*] 

6.  Cbiminal  Law  (J  830*)— Tbial— Request- 
ed Instbuctions— AppLiCABiLrrr. 

It  is  not  error  to  refuse  an  instruction 
which  is  not  a  correct  statement  of  the  law  ap- 
plicable to  the  theory  of  the  defense. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  g  2012;   Dec.  Dig.  {  830.*] 

7.  Assault  and  Battebt  (S  85*)— Cbiminal 
Responsibilitt  —  Evidence  —  Admissi- 
bility —  Chabacteb  of  Pasties. 

In  such  a  prosecution,  where  the  defendant 
attacks  the  reputation  of  the  prosecuting  wit- 
ness, and  introduces  evidence  tending  to  show 
that  his  reputation  In  the  community  where  he 
resides  as  a  peaceable  and  law-abiding  citizen 
is  bad,  the  prosecution  is  entitled  to  contradict 
such  testimony  by  the  evidence  of  competent 
witnesses. 

[Ed.  Note.— For  other  cases,  see  Assault  and 
Battery,  Cent  Dig.  {  133 ;    Dec.  Dig.  {  85.*] 

8.  Instbuctons  Not  Ebboneous. 

Instnictions  examined,  and  found  to  con- 
tain no  prejudicial  error. 

(Syllabus  by  the  Court) 

Error  to  District  Court,  Harlan  County ; 
Dungan,  Judge. 

Oliver  Stevens  was  convicted  of  a  violation 
of  Cr.  Code,  {  16,  declaring  that  a  i)erson  who 
shall  stab  or  cut  another  with  intent  to  kill 
or  wound  shall  be  Imprisoned  as  therein  pre- 
scribed, and  he  brings  error.  Judgment 
modified,  and,  as  modified,  affirmed. 


•For  other  cases  see  aame  topic  and  section  NUMBER  in  Dec.  *  Am.  Diss.  1907  to  date,  ft  Reporter  Indazea 


Digitized  by 


Google 


Xeb.) 


STEVENS  V.  8  PATE. 


69 


John  Ererson,  for  plaintiff  in  error.  W.  T. 
Tbompson  and  Grant  6.  Martin,  for  the 
State. 

BARNES. .  J.  Oliver  Stevens,  who  will 
hereafter  be  called  the  defendant,  was  con- 
victed In  the  district  court  of  Harlan  county 
nf  a  violation  of  section  16  of  the  Criminal 
Code.  He  was  sentenced  to  a  term  of  two 
years  in  tlie  state  penitentiary,  and  brings 
the  case  here  for  review. 

Tlie  information  contained  two  counts. 
The  first  charged  that  on  the  27th  day  of 
.\prll,  1908,  the  defendant  did  feloniously  as- 
!<aalt  one  Benjamin  Coe  with  a  certain  knife, 
with  intent  him,  the  said  Coe,  then  and  there 
unlawfully,  maliciously,  and  feloniously  to 
liill.  The  second  count  charged  that  the  as- 
sault npon  tlie  said  Benjamin  Coe  was  made 
with  intent  to  wound.  The  defendant  filed  a 
motion  to  require  the  state  to  elect  upon 
which  count  of  the  information  it  would 
prosecute  mm.  The  court  overruled  his  mo- 
tion, and  he  assigns  error.  The  rule  is  well 
settled  in  this  state  that,  where  an  informa- 
tion contains  two  counts  charging  one  of- 
fense, the  prosecutor  is  not  obliged  to  elect 
npon  which  count  he  will  rely  for  a  convic- 
tion. Hurlburt  v.  State,  52  Neb.  429,  72  N.  W. 
471;  Korth  V.  State,  46  Keb.  631,  65  N.  W. 
T92;  Candy  v.  State,  8  Neb.  485,  1  N.  W.  454. 

!•       In  the  case  last  above  cited  the  identical 

I  question  here  presented  was  involved.  The 
indictment  in  that  case  contained  two  counts ; 
but  as  a  matter  of  fact  charged  but  one  of- 
fense, to  wit,  malicious  assault  and  shooting 
with  intent  to  kill,  and  malicious  assault  and 

^  shooting  with  intent  to  wound.  It  was  said: 
"The  only  difference  between  the  two  counts 

I  uf  the  Indictment  in  this  case  consists  in  the 
(iUterence  In  the  Intent  with  which  it  is  alleg- 
ed the  shooting  is  done.  Such  intent  could 
only  be  gathered  from  the  facts  and  circum- 
stances surrounding  the  parties  at  the  dme, 
and  the  prosecutor  might  well  be  in  doubt  as 
to  what  might  be  the  effect  of  the  testimony 
before  the  trial  Jury,  and  we  think  the  law 
|)ennitted  him  to  frame  two  counts,  so  that 
whether  the  Jury  believed  the  defendant  guilty 
of  having  maliciously  shot  the  person  named 
in  the  indictment  with  intent  to  kill,  or  only 
with  intent  to  wound,  in  either  case  they 
might  find  him  guilty."  And  it  was  held  that 
the  state  wouiti  not  be  required  to  elect  upon 
which  count  of  the  indictment  it  would  rely 
for  a  conviction.  So  in  the  case  at  bar  the 
•listrict  court  did  not  err  in  overruling  the 
defendant's  motion. 

Before  discussing  the  other  assignments  of 
Tror,  It  Is  proper  for  us  to  state  the  facts 
which  are  clearly  established  by  the  undis- 
puted testimony  contained  in  the  bill  of  ex- 

I  '-eptions.  The  defendant  and  the  complain- 
ing witness,  Benjamin  Coe,  resided  on  ad- 
joining farms  In  Harlan  county.  Neb.    At  one 

I  time  they  had  been  on  quite  friendly  terms, 
bat  for  about  eight  years  prior  to  the  com- 
ailsslon  of  the  offense  charged  In  the  infor- 


mation the  relations  between  them  had  been 
so  strained  that  they  rarely,  if  ever,  spoki- 
to  one  another  when  they  met.  On  April  27. 
1908,  the  defendant  was  working  In  his  field 
about  20  rods  from  the  public  highway.  Be 
saw  the  complaining  witness  passing,  and 
quit  his  work  and  went  to  the  side  of  the 
-fence  next  to  the  road  along  which  Coe  was 
traveling.  He  climbed  over  the  fence  Into 
the  road,  and  thereupon  some  words  were 
exchanged  l>etween  them,  and  he  struck  Cot- 
with  a  knife,  inflicting  a  wound  upon  the  ab- 
domen, which  was  at  least  seven  inches  In 
length  and  of  considerable  depth.  The  de- 
fendant himself  was  uninjured.  As  above 
stated,  there  is  no  dispute  In  regard  to  any 
of  the  foregoing  facts.  The  defendant  ad- 
mits that  he  stabbed  Coe,  but  claims  that  he 
stabbed  him  in  self-defense.  Coe,  on  the 
other  hand,  denied  that  he  attempted  or  was 
about  to  assault  the  defendant,  and  testified 
that  at  the  time  of  the  assault  he  was  In  a 
weakened  condition  physically,  not  having 
fully  recovered  from  a  serious  Illness  from 
which  he  had  suffered  the  previous  winter. 
It  will  thus  be  seen  that  the  only  question  In 
dispute  between  the  parties  was  whether  or 
not  the  defendant  was  Justified  in  making  the 
assault  which  he  committed  upon  the  prose- 
cuting witness.  With  this  statement  of  facts, 
we  come  now  to  consider  the  defendant's  re- 
maining assignments  of  error. 

He  contends  that  the  court  erred  in  allow- 
ing the  complaining  witness  to  testify  as  to 
his  alleged  physical  condition.  The  defend- 
ant having  admitted  that  he  stabbed  Coe,  and 
claimed  that  the  act  was  done  in  self-defense, 
the  physical  health  and  strength  of  the  prose- 
cuting witness  at  the  time  he  was  stabbed 
was  a  proper  matter  for  the  consideration  of 
the  Jury  In  determining  whether  the  defend- 
ant was  In  such  real  or  apparent  danger  at 
the  time  he  inflicted  the  wound  complained 
of  as  to  Justify  his  action.  In  25  Am.  &  Eng. 
Eucy.  of  Law  (2d  Ed.)  p.  282.  It  Is  said: 
"Evidence  of  the  relative  physical  strength 
of  the  deceased  and  the  accused  Is  admissible 
when  self-defense  is  the  Justification."  In 
Hlnch  v.  State,  25  Ga.  609,  where  the  prison- 
er wos  on  trial  for  murder,  and  where  self- 
defense  was  pleaded.  It  was  held  that  it  was 
competent  to  prove  on  the  part  of  the  prose- 
cution that  the  prisoner  was  a  large,  and  the 
deceased  a  small,  man.  It  appears  that  the 
defendant  himself  recognized  this  rule,  for  ho 
testified  as  to  bis  own  weight  and  age,  and 
brought  out  on  the  cross-examination  the  age 
and  weight  of  the  complaining  witness. 
Again,  his  counsel  in  his  brief  refers  to  the 
relative  size  of  the  two  men,  evidently  con- 
sidering that  he  strengthened  his  theory  of 
self-defense  when  he  showed  that  Coe  was 
the  younger  and  heavier  man.  Without 
doubt  he  bad  a  right  to  show  those  things, 
and,  on  the  other  band,  the  state  had  a  right 
to  show  that  the  prosecuting  witness  at  the 
time  he  was  stabt)ed  was  In  a  weakened  phy- 
sical condition,  and  had  not  recovered  fiom 


Digitized  by 


Google 


60 


122  NORTHWESTERN  REFOHTER. 


(Neb. 


a  severe  attack  of  typhoid  fever.  This  rale 
is  too  well  settled  to  require  further  discus- 
sion, and  we  are  therefore  of  opinion  that 
this  evidence  was  properly  received.     ' 

Defendant  also  contends  that  the  trial 
court  erred  In  sustaining  certain  objections 
to  the  cross-examination  of  the  complaining 
witness.  This  assignment  strikes  at  the  rul- 
ing on  the  following  question:  "Q.  You 
knew  that  Mr.  Stevens  had  signed  that  road 
petition?"  The  state  objected  to  the  evi- 
dence as  immaterial,  Irrelevant,  and  improp- 
er cross-examination.  The  record  shows 
that  the  prosecuting  witness  had  stated  to 
some  one  that  the  persons  who  signed  a  cer- 
tain petition  for  the  establishment  of  a  road 
which  he  opposed  were  liars,  or  words  to 
that  effect.  Even  if  this  were  true,  which 
Is  strenuously  denied,  it  would  constitute  no 
justification  for  the  defendant's  attack  up- 
on the  complaining  witness,  and  therefore 
the  matter  was  properly  excluded  from  the 
consideration  of  the  jury. 

It  is  further  contended  that  the  court  erred 
in  overruling  defendant's  objection  as  to  the 
testimony  of  one  Dr.  Conklin.  It  appears 
that  Dr.  Conklin  was  one  of  the  physicians 
called  to  attend  the  complaining  witness  aft- 
er he  had  been  stabbed  by  the  defendant 
It  was  proper  and  competent  to  prove  by  him 
the  nature  and  extent  of  the  Injury  as  a  cir- 
cumstance tending  to  show  the  Intent  with 
which  the  assault  was  committed.  It  Is 
claimed,  however,  that  he  should  not  have 
been  permitted  to  testify  as  to  what  he  did 
In  the  way  of  treating  the  wound  which  he 
found  upon  the  person  of  the  prosecuting 
witness.  We  think  this  testimony  was  com- 
petent, and,  in  any  event,  we  are  unable  to 
discover  how  the  defendant  could  In  any 
manner  have  been  prejudiced  thereby.  It 
appears  that  one  Chester  Keith  was  called 
as  a  witness,  and  Interrogated  as  to  the  gen- 
eral reputation  of  the  prosecuting  witness  as 
to  being  a  violent  and  quarrelsome  man.  In 
answer  to.  the  question  as  to  what  bis  repu- 
tation was,  he  said:  "A  very  quarrelsome 
man.  He  would  quarrel  with  anybody  that 
would  say  one  word,  or  give  him  any  chance 
at  all."  The  last  clause  of  the  answer  was 
stricken  out  on  motion  of  the  state,  but  the 
words,  "very  quarrelsome  man,"  were  allow- 
ed to  stand.  Defendant  assigns  error  In 
striking  out  the  clause  above  mentioned.  To 
our  minds  the  ruling  of  the  district  court 
was  correct  The  answer  should  have  been 
confined  to  the  general  reputation  of  the  com- 
plaining witness,  and  the  evidence  thus  vol- 
unteered was  certainly  incompetent 

Defendant  further  complains  of  the  order 
striking  out  the  testimony  of  the  witness 
Goodban  as  to  the  reputation  of  the  defend- 
ant himself  as  a  peaceable  and  law-abiding 
citizen.  It  appears  that  the  witness  testi- 
fied as  follows :  "Q.  Are  you  acquainted  with 
Mr.  Stevens  there,  and  his  reputation  as  to 
being  a  peaceable  and  law-abiding  citizen? 
A.  I  think  80.    Q.  What  is  It,  good  or  bad? 


A.  Why,  nothing  was  ever  spoken  against 
htm  until  this  affair  come  up  tliat  I  know 
of."  The  state  moved  to  strike  out  the  an- 
swer of  the  witness  as  not  responsive  to  the 
question,  and  the  motion  was  sustained ;  but 
the  defendant  was  not  prejudiced  thereby, 
for  the  witness  was  permitted  to  answer  the 
question,  and  stated  that  defendant's  repu- 
tation was  good. 

The  defendant  assigns  error  in  excluding 
his  own  evidence  that  the  complaining  wit- 
ness some  10  or  12  years  before  the  assault 
In  question  was  committed  threatened  to  as- 
sault one  Arthur  Garrison.  We  think  that 
this  evidence  was  properly  excluded.  With- 
out doubt  the  defendant  was  entitled  to  prove 
the  gtoeral  reputation  of  the  complaining 
witness  as  a  violent,  quarrelsome,  and  dan- 
gerous man,  and  it  is  equally  clear  that  the 
testimony  should  be  confined  to  such  general 
reputation.  It  should  not  be  extended  to 
specific  acts,  especially  those  occurring  more 
than  10  years  previous  to  the  alleged  assault, 
and  with  which  defendant  had  no  concern. 
In  Thomas  v.  People,  67  N.  Y.  218,  the  pris- 
oner offered  to  prove  that  the  deceased  had 
been  engaged  In  several  fights  with  other 
parties,  in  each  of  which  he  used  a  knife  find 
cut  his  opponent  also  declarations  of  the  de- 
ceased as  to  his  cutting  people  with  razors, 
and  that  all  these  matters  had  been  com- 
municated to  the  prisoner.  The  offers  were 
overruled,  and  it  was  held  that  by  the  rul- 
ing the  trial  court  committed  no  error. 

Defendant  further  assigns  as  error  the  r&> 
fusal  of  the  court  to  give  the  Jury  Instruc- 
tion No.  4  asked  for  by  him.  Without  quot- 
ing the  Instruction  tendered,  it  is  sufficient 
to  say  that  it  assumed  that  the  complaining 
witness  was  a  man  of  violent  temper,  and 
had  on  previous  occasions  attempted  to  use 
a  knife  upon  an  opponent  in  a  quarrel. 
Whether  Coe  was  a  man  of  violent  temper 
or  not  was  a  question  of  fact  There  Is  some 
testimony  in  the  record  tending  to  show  that 
he  was,  and,  on  the  other  hand,  there  Is  con- 
siderable evidence  that  he  was  not  There- 
fore, the  court  was  not  warranted  in  giving 
an  instruction  which  virtually  Informed  the 
jury  that  the  fact  of  the  complaining  wit- 
ness' violent  temper  might  be  considered  as- 
established.  The  instruction  was  further  ob- 
jectionable, because  It  assumed  that  the  de- 
fendant had  seen  Coe  on  previous  occasions 
attempt  to  use  a  knife  upon  an  opponent  in 
a  quarrel,  for  there  is  no  evidence  in  the  rec- 
ord to  that  effect  Some  testimony  was  giv- 
en by  the  defendant  himself  tending  to  show 
that  he  had  seen  the  complaining  wltnesa- 
draw  a  knife  when  engaged  in  a  quarrel,  not 
a  fight  with  another;  but  there  is  none  to 
the  effect  that  he  ever  saw  him  attempt  to 
use  his  knife  upon  another.  Again,  the  con- 
cluding sentence  of  the  instroctlon  inform- 
ed the  Jury  that,  if  they  believed  from  all  of 
the  facts  and  surrounding  circumstances  tluit 
the  defendant  struck  Coe  in  the  honest  beller 
that  he  was  In  imminent  danger  of  being  at- 


Digitized  by  VjOOQ  l€ 


Nek) 


BENTON  T.  8IKYTA. 


61 


tacked,  then  he  would  not  be  suilty.  Nothing 
iras  said  therein  with  regard  to  the  nature 
of  the  attack  or  the  danger  to  be  apprehend- 
«d  therefrom.  To  Justify  the  wounding  of 
the  complaining  witness  by  the  defendant  up- 
on the  ground  of  self-defense,  it  was  neces- 
sary that  M  should  appear  that  the  defend- 
ant in  inflicting  the  wound  was  acting  upon 
the  reasonable  belief  that  it  wa,s  necessary 
to  use  the  force  he  did  in  order  to  save  his 
life,  or  prevent  the  complaining  witness  from 
doing  him  serious  bodily  injury.  The  In- 
struction was  therefore  properly  refused. 

Defendant  complains  of  the  ruling  of  the 
trial  court  admitting  the  evidence  of  certain 
of  the  state's  witnesses  tending  to  show  that 
the  general  reputation  of  the  complaining 
vitness  as  a  peaceable  and  law-abiding  cltl- 
len  In  the  community  where  he  resided  was 
good.  It  appears  that  on  the  trial  the  de- 
fendant attacked  the  reputation  of  the  pros- 
ecating  witness,  and  this  evidence  was  prop- 
er to  contradict  the  testimony  which  had 
been  produced  by  the  defendant  on  that  ques- 
tion. 

Defendant  complains  of  several  of  the  in- 
structions given  by  the  trial  court  on  his  own 
motion.  To  consider  each  of  them  separate- 
ly would  render  this  opinion  much  too  long. 
It  is  sufllcient  to  say  that  a  careful  examina- 
tion of  the  Instructions  taken  together  as  a 
whole  clearly  shows  that  the  Jury  was  prop- 
erly and  carefully  instructed  upon  the  law 
of  this  case.  In  fact  the  Instructions  were 
more  than  favorable  to  the  defendant.  His 
theory  of  the  case  was  so  fairly  presented  to 
the  Jury  that  he  has  no  reason  to  complain. 

A  careful  examination  of  the  record  sat- 
isfies us  that  the  defendant  was  accorded  a 
fair  and  impartial  trial,  and  that  the  ver- 
dict is  amply  sustained  by  the  evidence.  We 
are  of  opinion,  however,  that  the  facts  and 
circumstances  surrounding  the  transaction 
require  us  to  reduce  the  punishment  in  this 
case  to  imprisonment  In  the  penitentiary  for 
the  term  of  one  year.  The  Judgment  of  the 
district  court  to  that  eztept  Is  modified,  and 
as  80  modified  is  affirmed. 

Judgment  accordingly. 


BENTON  T.   SIKTTA.     (No.  16,762.) 

(Supreme  C!onrt  of  Nebraska.    June  25,  1909.) 

1.  Biixs  AifD  Notes  (§  335*)  —  Bora  Fids 
PuBCHASEBS— Patent  Rioht  Note. 

The  indonee  of  a  promissory  note,  which 
waj  given  in  consideration  for  a  right  to  make, 
nse,  or  vend  a  patented  invention  or  one  claim- 
ed by  the  payee  to  be  patented,  takes  the  paper 
■abject  to  all  defenses  between  the  original  par- 
ties, if  at  the  time  of  his  purchase  he  had 
knowledge  of  the  consideration  aforesaid,  and 
none  of  the  parties  through  whom  he  claims 
were  in  ignorance  of  that  fact,  even  though  the 
Bote   was   not   indorsed    "Given    for  a    patent 


right"  and  be  paid  value  for  and  purchased  it 
before  maturity. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent.  Dig.  t  817;   Dec.  Dig.  {  33o.*] 

2.  Evidence    (J  235*)— Declaration s— Pay- 
ee OF  Note. 

In  a  suit  upon  such  an  instniment,  after  it 
has  been  shown  that  plaintiff  and  his  predeces- 
sors in  title,  before  or  at  the  time  they  acquired 
title  thereto,  had  knowledge  of  the  considera- 
tion for  which  it  was  given,  the  defendant  may 
prove  by  a  third  party  declarations  of  the  pay- 
ee made  while  in  possession  of  the  note  and 
tending  to  Impeach  its  validity. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  a  873^75 ;    Dec.  Dig.  i  233. •] 

3.  Bnxs   AND    Notes    (t    101*)— Validity- 
Intoxication. 

A  iiromissoiy  note,  sipied  while  the  maker 
Is  intoxicated  so  that  he  is  incapable  of  know- 
ing or  understanding  the  nature  or  quality  of 
his  act,  if  not  thereafter  ratified  by  him,  but, 
on  the  contrary,  promptly  repudiated  after  he 
had  recovered  his  senses  and  appreciated  what 
had  been  done,  is  voidable  at  his  election,  in  the 
hands  of  an  indorsee  who  is  not  an  innocent 
bolder  thereof. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  {  214;  Dec.  Dig.  i  101.*] 

4.  Biixa  AND  Notes  (t  337*)— Bona  Fide 
PuBCHASEBS— "Bad  Faith." 

Section  9255,  Cobbey's  Ann.  St  1907,  has- 
not  changed  the  law  as  announced  in  Dobbins 
V.  Oberman,  17  Neb.  163,  22  N.  W.  356. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  |  818;  Dec.  Dig.  i  337.*] 

5.  Evidence  (S  441*)— Pabol  Evidence— Ar- 
FECTiNQ  Wbitings— Notes. 

"Parol  evidence  is  inadmissible  to  estab- 
lish an  oral  agreement  contemi>oraneous  with 
the  making  of  a  negotiable  instrument  whereby 
said  instrument  was  not  to  be  negotiated. 
Waddle  v.  Owen,  43  Neb.  489,  61  N.  W.  731. 
[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  {  2043 ;  Dec  Dig.  {  441.*] 

6.  Bnxs  AND  Notes  (J  363*)- Indobsekent 
AS   Collatebal— Amount  of  Recoveby. 

If  a  note  is  valid  between  the  original  par- 
ties, an  indorsee  who  holds  it  as  collateral  may 
recover  the  face  thereof  with  accrued  interest, 
retaining  any  surplus  as  trustee  for  the  party 
beneficially  entitled  thereto,  after  his  own  claim 
is  satisfied;  but,  if  tbe  note  Is  invalid  between 
the  immediate  parties,  one  who  holds  it  as  col- 
lateral security  may  only  recover  the  amount 
of  his  claim  to  which  said  note  is  collateral. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  {  961 ;   Etec.  Dig.  {  363.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Johnson  Coun- 
ty ;  Pemberton,  Judge. 

Action  by  Arthur  H.  Benton  against 
Frank  Slkyta.  Judgment  for  defendant,  and 
plaintiff  appeals.    Reversed  and  remanded. 

A.  W.  Lane  and  Baxter  &  Van  Dusen,  for 
appellant  Jay  C.  Moore  and,  Hugh  La  Mas- 
ter, for  appellee. 


ROOT,  J.  Suit  upon  a  negotiable  instru- 
ment by  an  indorsee  thereof.  There  was 
Judgment  for  defendant,  and  plaintiff  ap- 
peals. 

Defendant  alleges:  That  the  payee's  agent 
Induced  him  to  become  so  intoxicated  that 


•For  other. esMS  ■••  nune  topio  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by 


Google 


62 


122  NORTHWESTERN  REPORTER. 


(Neb. 


be  wns  incapable  of  UDderstanding  tbe  legal 
effect  of  said  Instrument,  and  wbile  in  that 
condition  be  signed  the  note  without  luow- 
ing  or  comprehending  its  force  or  nature; 
that  the  note  was  given  for  a  pretended  right 
to  vend  a  patented  invention,  but  does  not 
contain  the  statement  that  it  was  "Given  for 
a  patent  right,"  as  required  by  law,  and  was 
and  is  void  and  without  consideration;  and 
that  plaintiff  at  the  time  he  took  said  note 
and  received  an  assignment  thereof  bad 
knowledge  of  tbe  aforesaid  facts.  Tbe  reply 
is  a  general  denial. 

1.  Upon  the  trial  of  the  case  defendant, 
over  plaintiff's  objections,  was  permitted  to 
testify  that  Fordyce,  the  payee's  agent,  rep- 
resented to  defendant  that  tbe  note  would 
net  be  negotiated  but  held  simply  as  sccur- 
rity,  and  that  testimony  was  submitted  in  an 
instruction  by  the  court  as  a  defense  to  the 
suit,  provided  the  jury  found  that  plaintiff 
was  not  an  Innocent  holder.  No  such  defense 
was  pleaded  in  the  answer,  nor  should  it 
have  been  considered  if  incorporated  there- 
in.   Tbe  note  is  payable  to  bearer,  is  nego- 

.  tiable  by  delivery,  and  that  quality  cannot  be 
impaired  by  a  contemporaneous  parol  agree- 
ment. The  exact  principle  was  announced 
by  this  court  in  Waddle  v.  Owen,  43  Neb. 
489,  61  N.  W.  731.  See,  also.  Van  Etten  v. 
Howell,  40  Neb.  850,  59  N.  W.  389.  There 
was  error  in  tbe  admission  of  the  testimony 
and  in  tbe  instruction  referred  to. 

2.  Plaintiff  received  tbe  note  as  collateral 
to  secure  the  payment  of  Pordyce's  note  for 
a.  smaller  sum.  At  plaintiff's  request  the 
court  instructed  tbe  jury  that,  If  he  was  an 
innocent  bolder,  be  ought  to  recover  tbe  face 
of  the  note  In  suit  with  interest.  The  court 
on  its  own  motion  instructed  the  jury  that, 
if  Benton  was  an  Innocent  holder  of  tbe  col- 
lateral, but  it  was  secured  from  defendant 
while  he  was  so  intoxicated  that  he  did  not 
know  or  understand  what  he  was  doing,  the 
verdict  ought  not  to  exceed  the  Fordyce  note 
with  interest.  It  is  suggested  that  the  in- 
structions conflict.  The  criticism  is  merit- 
ed, but  the  instructions  only  relate  to  the 
amount  of  the  verdict  The  jury  did  not 
find  that  plaintiff  was  entitled  to  recover 
anything,  and  hence  tbe  error  is  without 
prejudice.  Gullion  v.  Traver,  64  Neb.  51, 
89  N.  W.  404.  For  the  future  guidance  of  the 
parties  it  may  be  said  tliat,  as  plaintiff  in 
bis  petition  asserts  title  by  virtue  of  an  as- 
signment of  the  note  made  on  February  7, 
1907,  and  not  by  purchase,  his  rights  are 
those  of  a  holder  of  collateral  only.  Under 
tbe  issue  presented  by  plaintiff  he  ought  not 
to  recover  in  any  event  more  than  the  face 
of  the  note  to  which  the  one  In  suit  is  col- 
lateral, with  interest.  Haas  v.  Bank  of  Com- 
merce, 41  Neb.  754,  60  N.  W.  85;  Barmby  v. 
Wolfe.  44  Neb.  77,  62  N.  W.  318.  Section 
!»'i50,  Cobbey's  Ann.  St.  1907,  cited  by  coun- 
sel, was  not  intended  to  abrogate  the  settled 
law  of  this  state  with  respect  to  the  rights 
of  the  bolder  of  collateral  securities. 


3.  The  court  charged  tbe  Jury,  as  request- 
ed by  defendant,  that:  "If  the  Jury  Ijelieve 
from  the  evidence  that  the  plaintiff,  before 
he  purchased  the  note  sued  upon  in  this  ac- 
tion, knew,  or  as  an  ordinarily  prudent  man 
had  reason  to  I)e1ieve  from  circumstances 
brought  to  his  knowledge  before  he  purchased 
It,  that  the  defendant  had  or  claimed  to  have 
a  defense  to  tbe  note,  then  the  plaintiff  is  not 
an  innocent  holder  of  said  note."  The  in- 
struction is  erroneous  In  permitting  the  Jury 
to  consider  what  an  ordinarily  prudent  man 
might  l>elieve  from  the  facts  brought  t<> 
plaintiff's  knowledge,  and  does  not  confine 
Iheir  deliberations  to  the  good  or  Imd  faith 
of  the  plaintiff,  whose  rights  are  not  to  be 
determined  by  reference  to  that  fictitious  in- 
dividual- the  "ordinarily  prudent  man." 
Prior  to  the  enactment  of  the  present  nego- 
tiable instrument  statute,  the  law  was  settlecl 
that,  to  constitute  bad  faith  on  the  part  of 
tbe  purchaser  of  a  negotiable  promissory  note 
transferred  to  him  for  value  before  maturity, 
he  must  have  acquired  it  with  knowledge  of 
tbe  infirmities  inhering  In  tbe  original  trans- 
action or  with  a  belief  based  on  the  circum- 
stances known  to  him  that  there  was  a  de- 
fense to  the  instrument,  or  the  evidence  muse 
show  that  he  acted  in  bad  faith  or  dishon- 
estly. Dobbins  v.  Oberman,  17  Neb.  163,  21! 
N.  W.  856;  Myers  v.  Healer,  30  Neb.  280,  46 
N.  W.  479;  First  State  Bank  of  Pleasant 
Dale  V.  Borchers  (Neb.)  120  N.  W.  142.  Sec- 
tion 9255,  Cobbey's  Ann.  St  1907,  supra,  pro- 
vides that;  "To  constitute  notice  of  an  in- 
firmity in  tbe  instrument  or  defect  in  tbe 
title  of  the  person  negotiating  the  same,  tbe 
person  to  whom  it  is  negotiated  must  have 
bad  actual  knowledge  of  the  infirmity  or  de- 
fect, or  knowledge  of  such  facts  that  his  ac- 
tion in  taking  tbe  instrument  amounted  to 
bad  faith."  The  statute,  in  our  Judgment,  in 
no  manner  relaxes  the  rule  of  law  decided 
in  the  cited  cases.  Of  course,  if  the  consid- 
eration for  the  note  is  the  right  to  vend  a 
patented  Invention,  and  plaintiff  knew  that 
fact  when  he  became  the  holder  thereof,  the 
element  of  notice  of  any  other  fact  material 
to  tbe  defense  is  ImmateriaL  On  tbe  other 
hand,  if  it  is  conceded  that  Benton  did  not 
have  that  knowledge,  we  are  of  opinion  that 
the  evidence  does  not  justify  a  finding  or  In- 
ference that  plaintiff  knew  that  defendant 
was  intoxicated  when  he  signed  tbe  note  in 
suit 

4.  It  is  argued  that  tbe  evidence  does  not 
sustain  the  verdict,  and  that  the  admission 
of  Benton's  testimony  to  prove  Fordyce's 
statements  was  error.  For  the  benefit  of  the 
litigants  we  will  consider  those  assignments. 

The  note  in  suit  is  payable  to  the  Leader 
Fence  Machine  Manufacturing  Company,  or 
bearer,  and  Fordyce  seems  to  have  been  the 
general  manager  of  that  company.  Tbe  evi- 
dence tends  to  prove  that,  about  a  week  be- 
fore tbe  note  was  signed,  Fordyce  Induced 
defendant  to  sign  two  contracts  wherein  he 
agreed  to  purchase  ^veral  fence  machines 


Digitized  by  VjOOQ  IC 


Xeh.) 


STONE  V.  KEBRASKA  CITY. 


63 


<ivm  said  company  and  to  act  as  its  exduslre 
ssent  for  at  least  a  year  for  the  sale  of  said 
machines  in  three  townships  in  Johnson  coun- 
ty.   Each  -writing  recites  tliat  the  defendant 
has  given  his  obligation  to  pay  for  the  ma- 
•-hines  purchased.    Defendant  refused  to  give 
his  notes,  but  later,  in  Sterling,  was  piled 
by   Fordyce  with   whisky  until   intoxicated, 
and,  -while  incapable  of  understanding  what 
he  was  doing,  was  Induced  by  Fordyce  to  sign 
the  Instrument  in  suit.     Section  9395,  Cob- 
hey's  Ann.  St.  1007,  provides  that  there  shall 
!«>  written  or  printed  above  the  signature 
.•I  ud  across  the  face  of  ail  notes  given  in  con- 
sideration of  the  right  to  make,  use,  or  vend 
u  patented  invention,  or  an  Invention  claim- 
ed to  be  patented,  the  words  "Given  for  a 
[latent  right,"  and  that  such  an  instrument 
«ba11  at  all  times  be  subject  to  all  defenses 
ivailable  against  the  payee  thereof,  and  If 
any  such  notes  are  not  thus  Indorsed,  but  a 
subsequent  holder  thereof  has  knowledge  of 
the  consideration  therefor,  be  shall  bold  it 
subject  to  said  defenses.    The  Legislature  in 
the  exercise  of  the  police  power  may  enact 
statutes  like  the  one  quoted,  and  Individuals 
dealing  in  negotiable  instruments  must  take 
notice  of  the  law.     Tod  v.  Wick  Bros.,  36 
Ohio  St.  370;    Allen  v.  Riley,  203  U.  S.  347, 
•-T  Sup.  Ct.  93,  51  L.  Ed.  216;    John  Woods 
&  Sons  T.  Carl,  203  U.  S.  358,  27  Sup.  Ct. 
'i!>,  31  L.  Ed.  219.    The  proof  is  not  as  satls- 
f:»ctory  as  a  court  might  desire  to  establish 
that  tlie  machine  referred  to  In  the  contract 
was  patented,  tliat  Fordyce  claimed  It  to  be 
patented,  or  that  plaintiff  knew  either  fact 
at  or  before  the  date  he  took  the  note  in  suit 
as  collateral;  but  the  evidence  is  not  entire- 
ly without  probative  value  to  support  those 
issues.    If  therefore  the  note  was  given  for 
the  right  to  use  or  vend  a  patented  invention, 
or  one  that  Fordyce  claimed  to  be  patented, 
and  plaintiff  knew  that  fact  at  or  before  the 
time  he  purchased  the  instrument,  defendant 
bad  the  right  to  have  the  Jury  consider  his 
defense  that,  at  the  time  he.  signed  said  in- 
strument, he  was  so  intoxicated  by  Fordyce's 
procurement  that  he  did  not  know  or  under- 
stand the  character  or  consequences  of  his 
act,  and  that  be  had  repudiated  the  note 
within  a  reasonable  time  after  recovering  his 
senses.    Between  the  original  parties,  or  one 
not  a  bona  fide  liolder,  that  defense  iB  legiti- 
mate.   Gore  V.  Gibson,  13  M.  dc  W.  623 ;  J.  I. 
Case  Threshing  Machine  Company  v.  Meyers, 
78  Neb.  685,  111  N.  W.  602,  9  L.  R.  A.  (N.  S.) 
1I70.    It  should  t>e  borne  in  mind,  however, 
that  plaintiff  is  not  to  be  defeated  l>ecause 
the  facts  may  satisfy  the  trier  of  fact  that 
Benton  had  constructive  notice  that  the  note 
iras  given  in  consideration  of  a  right  to  use 
or  vend  a  patented  invention.    The  language 
of  tlie  statute  Is  that  the  indorsee  Is  not  an 
innocent  holder  if  he  purchased   the  note 
"knowing  it  to  have  l>een  given  for  the  con- 
sideration aforesaid." 


Over  defendant's  objections  it  was  shown 
that  Fordyce,  about  15  to  30  days  after  he 
secured  the  note  from  defendant,  told  the 
witness  that  he  (Fordyce)  "got  SIkyta  drunk 
when  he  signed  the  note,  ♦  •  ♦  so  drunk 
that  he  could  scarcely  move  or  handle  himself 
at  all."  At  the  time  the  note  was  executed, 
Fordyce  was  the  payee's  agent,  and,  unless 
he  owned  the  note  when  he  made  that  state- 
ment, it  ought  not  to  have  been  received  ex- 
cept for  Impeachment  purposes,  if  Fordyce 
had  testified  and  the  proper  foundation  had 
been  laid.  Gale  Sulky  Harrow  Co.  v.  Laugli- 
lln,  31  Neb.  103,  47  N.  W.  638.  The  evidence 
does  not  fix  with  any  degree  of  certainty 
Just  when  Fordyce  became  the  owner  of  the 
paper.  He  transferred  it  before  maturity, 
and  the  Jury  might  infer,  from  all  of  the  cir- 
cumstances developed  from  the  evidence,  that 
his  title  antedated  the  declaration  made;  but 
we  think  that  the  Jury  should  have  been  ad- 
vised that,  unless  they  found  that  fact  to 
exist,  they  should  disregard  Benton's  testi- 
mony on  this  point.  The  courts  are  not  In 
harmony  upon  the  admissibility  of  such  evi- 
dence in  any  event ;  but  the  dictum  of  Judge 
Sullivan  in  Zobel  v.  Bauersachs,  55  Neb.  20, 
75  N.  W.  43,  indicates  the  inclination  of  this 
court  to  hold  such  evidence  competent  where 
the  litigant  claims  title  through  the  declarant 
and  Is  not  an  innocent  holder,  and  such  we 
hold  to  be  the  law.  Fisher  v.  Leland,  4 
Cush.  (Mass.)  456,  50  Am.  Dec.  805;  Reed  v. 
Vandeve,  27  N.  J.  Law,  352,  72  Am.  Dec.  SO) ; 
Thorp  V.  Goewey.  Adm'r,  85  111.  Oil;  Romy  v. 
Duffee,  4  Ala.  365.  The  authorities  cited  on 
this  point  by  plaintiff  all  support  the  proposi- 
tion that  the  statements  made  by  one  who 
theretofore  owned  a  negotiable  Instrument 
will  not  be  received  to  impeach  the  bill,  and 
they  are  sound,  but  do  not  apply  to  the  case 
before  us. 

For  the  errors  referred  to,  the  Judgment 
of  the  district  court  is  reversed,  and  the 
cause  remanded. 

Reversed  and  remanded. 

REESE,  C.  J.,  absent 


STONE  et  al.  v.  NEBRASKA  CITY  et  al. 
(No.  16,022.) 

(Supreme  Coutt  of  Nebraska.     June  25,  1909.) 

HioHWATS  (§  42*)— Establishment  ob  Va- 
cation—Decision OF  County  Board— Con- 
clusiveness. 

"The  decision  of  the  necessity  or  expedien- 
cy of  establishing,  maintaining,  or  vacating  a 
public  road  is  committed  exclusively  to  count.v 
boards  and  otiier  like  legislative  and  govern- 
mental agencies,  and  is  not  subject  to  Judicial 
review."  Otto  v.  Conroy,  76  Neb.  517,  107  N. 
W.  752. 

[Ed.  Note. — For  other  cases,  see  Highways, 
Cent.  Dig.  {  132;   Dec.  Dig.  {  42.*] 

(Syllabus  by  the  Court.) 


for  otter  csMS  ■••  nm*  topic  and  Mctlon  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


«4 


122  NORTHWBSTERN  REPORTEB. 


(Keb. 


Appeal  from  District  Court,  Otoe  County; 
Travis,  Judge. 

Action  by  Henry  M.  Stone  and  otliers 
against  Nebraslia  City  and  otliers.  Judg- 
ment for  defendants,  and  plaintiffs  appeal. 
Affirmed. 

John  C.  Watson,  for  appellants.  D.  W. 
Livingston,  A.  A.  Blschof,  and  O.  O.  Leidigh, 
for  appellees. 

LETTON,  J.  This  action  was  brought  to 
restrain  defendants  from  closing  and  vacat- 
ing a  public  road.  The  petition  alleged,  in 
substance,  that  a  public  county  road  had  run 
In  front  of  the  tract  of  land  belonging  to  the 
plaintiffs  tor  more  than  30  years;  that  the 
buildings  and  structures  upon  the  property 
of  plaintiffs  had  been  erected  with  reference 
to  the  road;  that  the  defendants  threatened 
to  vacate  and  close  said  road ;  and  that,  If 
this  is  done,  the  means  of  access  to  plain- 
tiffs' premises  will  be  much  impaired,  and 
the  value  of  their  property  greatly  dimin- 
ished in  a  manner  and  to  an  extent  not 
susceptible  of  admeasurement  in  damages. 
The  answer,  in  substance,  admits  the  inten- 
tion to  vacate  the  road,  pleads  that  the  sub- 
ject-matter of  the  action  is  entirely  within 
the  Jurisdiction  of  the  board  of  county  com- 
missioners, and  not  within  the  Jurisdiction 
of  the  district  court,  and  further  sets  forth 
a  justification  of  the  proposed  action  of  the 
board  by  reason  of  local  circumstances.  The 
court  found  generally  for  the  defendants,  and 
-dismissed  the  petition. 

The  proceedings  of  the  board  looking  to 
the  vacation  of  the  road  are  fully  set  forth 
in  the  petition,  and  It  appears  that  all  the 
preliminary  requbrements  have  been  com- 
plied with  sufficiently  to  give  the  board 
Jurisdiction  to  act  The  simple  question  Is 
presented  whether  a  court  of  equity  has 
power  to  control  by  injunction  the  discretion 
of  the  proper  officers  of  a  county  in  the  es- 
tablishment or  vacation  of  public  highways. 
This  is  not  a  new  question  to  this  court  We 
are  of  the  opinion  that  the  court  has  no  such 
power,  the  Jurisdiction  or  matter  of  the  es- 
tablishment or  vacation  of  county  roads  has 
been  committed  by  the  Legislature  exclusive- 
ly to  the  discretion  of  the  proper  officers  of 
the  county,  and  with  this  discretion  the 
courts  cannot  interfere.  "The  decision  of 
the  necessity  or  expediency  of  establishing, 
maintaining,  or  vacating  a  public  road  Is 
committed  exclusively  to  county  boards  and 
other  like  legislative  and  governmental  agen- 
cies, and  Is  not  subject  to  Judicial  review." 
Otto  v.  Conroy,  76  Neb.  617,  107  N.  W.  752, 
and  cases  cited;  Throener  v.  Board  of  Su- 
pervisors (Neb.)  118  N.  W.  92. 

It  may  be  true,  as  plaintiffs  allege,  that 
the  closing  of  the  highway  will  be  a  great 
disadvantage  to  them  and  Inflict  an  injury 
upon  them  greater  than  that  suffered  by  any 


other  person,  and  more  than  to  counter- 
balance the  public  advantage  which  may  fol- 
low from  the  opening  of  a  new  road,  but 
these  matters  are  for  the  consideration  of 
the  county  officers  alone.  It  is  their  power 
and  duty  to  consider  the  relative  advantages 
and  disadvantages  to  the  public  and  to  in- 
dividuals of  the  proposed  vacation.  The  law 
has  conferred  this  power  and  duty  solely 
upon  them,  and  not  upon  the  courts.  It  Is 
only  in  cases  where  the  county  board  has 
not  acquired  Jurisdiction  of  the  subject-mat- 
ter that  a  court  of  equity  will  Interfere  to 
prevent  the  opening  or  closing  of  a  public 
highway.  No  case  has  been  cited  to  us  hold- 
ing otherwise,  nor  do  we  believe  that  such 
an  one  can  t>e  found.  In  the  case  of  Leather- 
man  V.  Hauser,  77  Neb.  731,  110  N.  W.  745, 
relied  upon  by  the  plaintiffs,  the  opinion 
shows  that  an  essential  jurisdictional  fact 
which  must  affirmatively  appear  upon  the 
record  of  the  proceedings  vacating  the  road 
did  not  appear,  and  that  the  record  of  the 
vacation  proceedings  was  therefore  fatally 
defective  In  falling  to  show  any  jurisdiction 
In  the  board  to  act  Of  course,  In  such  a 
case  Injunction  would  lie. 

Under  the  facts  shown  In  the  present  case, 
the  district  court  properly  held  that  the 
county  board  had  Jurisdiction  to  act  and 
that  there  was  no  equity  In  the  bill.  Its 
judgment  therefore  is  aflEbrmed. 


STATE  ex  rel.  JOHNSTON  v.  BARTON, 

State  Auditor.     (No.  16,305.) 

(Supreme  Court  of  Nebraska.     June  25,  1009.) 

States  (I  130*)— Appkopbiations— Specitio 
—"State  Pijblio  School  roa  Dependent 
Childbed." 

The  State  Public  School  for  Dependent 
Children  referred  to  in  Senate  File  No.  350 
(Laws  Neb.  1909)  is  identical  with  the  "Home 
tor  the  Friendless,"  and  the  appropriations 
made  by  the  Legislature  for  said  school  are 
specific  appropriations  for  the  support  of  said 
institution,  whether  described  as  the  Home  for 
the  Friendless  or  the  state  public  school. 

[Ed.  Note.— For  other  cases,  see  States,  Cent 
Dig.  {  128;  Dec  Dig.  S  130.*] 

Rose,  J.,  dissenting. 
(Syllabus  by  the  Court.) 

Original  application  for  mandamus  by  the 
State,  on  relation  of  Emma  C.  Johnston, 
against  Silas  R.  Barton,  as  State  Auditor, 
to  compel  him  to  draw  a  warrant  for  wages 
due  employes  of  the  Home  for  the  Friend- 
less. Peremptory  writ  awarded,  unless  with- 
in 10  days  of  the  filing  of  the  opinion  re- 
spondent sign  the  warrant  referred  to  in 
tlie  application. 

Clark  &  Allen,  for  relator.  W.  T.  Thomp- 
son, for  respondent 

ROOT,  J.  The  early  history  of  the  Home 
for  the  Friendless  may  be  found  In  58  Neb. 


•For  other  cases  see  same  topic  and  section  NUMBER  In  Doc.  ft  Am.  Diss.  U07  to  data,  *  Reporter  Indaxaa 


Digitized  by  LjOOQ  IC 


Neb.) 


STATE  V.  BARTON, 


C5 


417,  78  N.  W.  726.  The  Leglslatora  Oming 
ItB  Thirty-First  seaslon  repealed  secttoos  4, 
6,  and  6  of  chapter  35  of  the  Compiled  Stat- 
utes of  Nebraska  of  1907,  and  proTided  for 
a  state  public  school  for  dependent  children 
to  be  located  at  the  Home  for  the  Friend- 
less. Laws  Neb.  1900.  There  is  no  emer- 
gency clause  to  this  act,  and  it  will  not  be- 
come effective  until  July  1,  1909.  The  ap- 
propriations made  by  the  Legislature  in 
1907  for  maintenance  of  the  Home  for  the 
Friendless  and  the  payment  of  its  officers 
terminated  April  1,  1909.  The  Legislature 
In  1909  did  not  make  an  appropriation  re- 
ferring in  so  many  words  to  the  Home  for 
the  Friendless,  but  did  provide  In  the  ap- 
propriation made  for  the  current  expenses 
of  the  state  government  for  the  years  end- 
ing March  31,  1910,  and  March  31,  1911,  for 
the  maintenance  of  said  state  public  school. 
Provision  is  thereby  made  for  employes' 
wages,  for  general  repairs,  for  school  sup- 
plies and  traveling  expenses,  and  for  "the 
care  of  indigent  women  now  residents  of 
the  Institution,"  board,  clothing,  and  care  of 
children  placed  in  private  homes,  etc  In 
the  bill  appropriating  money  for  the  pay- 
ment of  the  salaries  of  state  officials  for  the 
bienninm  commencing  April  1,  1909,  may  be 
found  items  for  the  payment  of  salaries  for 
the  officers  contemplated  for  said  school. 

Each  of  said  appropriations  carried  an 
emergency  clause.  The  Auditor  has  allow- 
ed a  dalm  for  wages  due  employes  of  the 
Home  for  the  Friendless  for  the  month 
of  April,  1909,  but  refuses  to  draw  a  war- 
rant therefor  on  the  ground  that  the  Leg- 
islature did  not  make  any  appropriation 
for  the  support  of  said  institution,  and 
jastlfles  bis  conduct  by  reference  to  sec- 
tion 22,  of  article  8  of  the  Constitution, 
which  states  that:  "No  money  shall  be 
drawn  from  the  treasury  except  in  pursu- 
ance of  a  specific  appropriation  made  by 
law,  •  •  •  and  no  money  shall  be  di- 
verted from  any  appropriation  made  for 
any  purpose  or  taken  from  any  fund  what- 
ever, either  by  Joint  or  separate  resolution." 
The  appropriations  considered  are  specific, 
each  item  therein  referring  to  a  definite  sub- 
ject The  Legislature  evidently  intended 
to  change  the  name  but  continue  the  institu- 
tion of  the  Home  for  the  Friendless.  The 
statute  creating  the  state  public  school  does 
not  refer  to  adult  dependents,  but  the  gener- 
al appropriation  bill  does  appropriate  mon- 
ey for  the  support  of  indigent  women  now 
resident  at  that  institution.  It  Is  Incredible 
that  the  Legislature  intended  to  leave  the 
dependent  children  and  aged  women  in  the 
Home  for  the  Friendless  without  means  of 
Support  for  three  months,  and  expected  the 
employes  and  officers  necessary  for  the  trans- 
action of  the  business  of  that  institution  to 
labor  for  the  state  three  months  without 
compensation,  or,  in  default  of  such  gratuit- 
ous services,  that  the  institution  should  be- 
come a  derelict  during  the  second  quarter 
122N.W.-5 


of  1909.  The  appropriations  for  said  school 
wltli  the  exception  of  the  item  for  the  plac- 
ing out  agent,  whose  office  is  created  by 
Senate  File  No.  350,  are  Identical  as  to  of- 
ficials and  amounts  with  the  appropriations 
made  by  the  1907  Legislature  for  the  Home 
for  the  Friendless.  It  certainly  was  not  the 
intention  of  the  Legislature  that  the  su- 
perintendent, matron,  physician,  head  teach- 
er, nurse,  and  engineer  in  the  state  public 
school  should  receive  24  months'  salary  for 
21  months'  work,  and  yet  such  will  be  the 
case  if  respondent's  theory  be  adopted.  The 
appropriations  are  for  the  blennlum,  and 
yet,  because  the  change  in  the  name  of  the 
Institution  will  not  become  effective  till  July 
1st,  respondent  reasons  that  the  money  ap- 
propriated cannot  be  used  in  three  out  of 
24  months  of  the  blennlum.  It  is  clear  that 
the  Legislature  appropriated  money  to  main- 
tain the  institution  known  as  the  Home  for 
the  Friendless,  which  subsequent  to  July  1, 
1909,  will  be  described  as  the  State  Public 
School  for  Dependent  Children.  The  Au- 
ditor under  the  circumstances  was  Justified 
in  not  acting  unless  advised  by  the  court 
that  it  was  his  duty  to  do  so. 

If  within  10  days  of  the  filing  of  this 
opinion  respondent  signs  the  warrant  re- 
ferred to  In  the  application,  the  writ  will 
not  issue,  and  the  costs  will  be  taxed  to  re- 
lator, but,  if  he  falls  to  do  so,  a  peremptory 
writ  will  at  the  end  of  said  10  days  issue  as 
prayed  for  and  relator  will  recover  her  costs. 

ROSE,  J.  (dissenting).  I  concur  In  the 
spirit  of  kindness  In  which  the  writ  is  al- 
lowed, but  dissent  from  the  propositions  of 
law  on  which  the  Judgment  is  based.  Rela- 
tor is  superintendent  of  the  Home  for  the 
Friendless,  and  as  such  applied  for  a  per- 
emptory writ  of  mandamus  to  compel  the 
Auditor  of  Public  Accounts  to  issue  a  war- 
rant on  the  State  Treasurer  for  $428  to  pay 
the  wages  of  the  employes  of  that  institu- 
tion for  the  month  of  April,  1909.  The  Au- 
ditor approved  relator's  voucher,  because 
the  employes  rendered  the  services  for  which 
compensation  is  demanded,  but  declined  to 
Issue  a  warrant  for  want  of  an  appropria- 
tion. Under  the  name  of  the  "Home  for 
the  Friendless,"  the  Legislature  at  its  last 
session  made  no  appropriation  for  the  em- 
ployes of  that  Institution.  In  the  act  making 
appropriations  for  current  expenses  of  the 
state  government  for  the  present  blennlum, 
there  is,  however,  an  appropriation  in  the 
following  language:  "For  State  Public  School 
at  Lincoln:  Employes'  wages,  $0,500." 
Though  this  item  was  appropriated  for  the 
"State  Public  School  at  Lincoln,"  an  institu- 
tion not  now  In  existence,  the  Auditor  of 
Public  Accounts  is  directed  to  draw  a  war- 
rant against  it  to  pay  wages  of  employes  at 
the  Home  for  the  Friendless  for  the  month 
of  April.  The  Justification  for  this  order, 
as  announced  in  the  opinion  of  Hie  court,  is 
that  legislative  appropriations  for  the  State 


Digitized  by  VjOOQ  IC 


122  NORTHWESTERN  REPORTER. 


(Netn 


Public  School  at  Lincoln  are  specific  appro- 
priations for  the  Home  for  the  Friendless. 
This  conclusion,  as  I  understand  the  stat- 
utes, is  wholly  unwarranted.  The  statutes 
tlicmselres  do  not  say  that  the  Institutions 
are  ideutlcal,  that  the  superintendent  of  the 
Home  for  the  Friendless  is  the  superintend- 
ent of  the  State  Public  School,  or  that  the 
employes  of  one  institution  are  employes  of 
the  other.  Except  by  mere  inference  from 
the  pleadings,  there  is  nothing  In  the  record 
to  show  such  facts.  The  purpose  of  the  new 
legislation  was  to  change  the  existing  order 
of  things  at  the  Home  for  the  Friendless. 
The  new  act  to  which  the  court  adverts  in 
the  opinion  shows  that  the  name,  purpose, 
and  management  of  the  old  Institution  are 
to  be  changed.  Formerly  the  mission  of  the 
Home  for  the  Friendless  was  to  aid  and  sup- 
port destitute  and  dependent  women  and 
children.  In  describing  its  purpose  Judge 
Sullivan  in  Home  for  the  Friendless  v.  State, 
68  Neb.  447,  78  N.  W.  72G,  said:  "The  home 
contemplated  by  the  Legislature  was  a  phy- 
sical home — a  place  where  the  unfortunates 
of  society,  the  Jetsam  and  flotsam  of  life's 
restless  sea,  might  find  a  temporary  refuge, 
clothing,  and  food,  and  shelter  and  rest" 
One  of  the  declared  purposes  of  the  new  act 
is  to  change  the  institution  from  a  home  to 
a  school.  This  is  shown  by  the  title,  which 
is  as  follows:  "An  act  providing  for  the 
creation  and  location  of  a  state  public  school 
for  dependent  children  and  providing  for 
the  government  of  the  same,  and  providing 
for  the  care  and  custody  of  all  the  depend- 
ent children  within  the  state  and  repealing 
sections  4,  5  and  6  of  chapter  35  of  the  Com- 
piled Statutes  of  Nebraska."  This  title  lim- 
its to  dependent  children  the  benefits  of  the 
State  Public  School  to  the  exclusion  of  the 
aged  women  now  In  the  Home  for  the  Friend- 
less. For  them  no  provision  is  made  in  the 
new  act  The  first  section  is  as  follows: 
"There  is  hereby  created  and  established  a 
state  public  school  for  dependent  children 
to  be  located  at  the  Home  for  the  Friendless 
in  the  city  of  Lincoln,  which  said  school 
shall  have  charge  of  all  the  dependent  chil- 
dren within  the  state  as  herein  defined  and 
provided." 

The  State  Public  School  is  thus  located  at 
the  Home  for  the  Friendless,  but  neither  the 
section  quoted  nor  any  other  provision  of 
the  act  abolishes  its  present  statutory  name 
or  repeals  that  part  of  the  original  act  es- 
tablishing the  original  home.  The  board  of 
public  lands  and  buildings,  in  so  far  as  It 
now  has  control  of  dependent  children,  will 
be  superseded  by  the  Governor.  In  at  least 
three  material  respects,  therefore,  the  State 
Public  School  will  differ  from  the  Home  for 
the  Friendless:  (1)  The  names  of  the  insti- 
tutions will  be  different    (2)  Aged  and  de- 


pendent women  will  be  excluded  from  the 
State  Public  School  under  the  provisions  of 
the  act  creating  it,  though  they  found  at  the 
old  home  "a  temporary  refuge,  clothing  and 
food,  and  shelter  and  rest."     (3)  In  so  far 


as  the  Institution  protected  and  controlled 
dependent  children,  the  board  of  public  lands 
and  buildings  will  be  superseded  by  the  Gov- 
ernor. The  recent  legislation  will  change 
the  name,  purpose,  and  management  of  the 
Home  for  the  Friendless.  It  will  put  Into 
the  hands  of  the  Governor  power  to  change 
the  officers  and  employes.  The  general  ap- 
propriation bill  which  contains  Items  for 
the  current  expenses  of  the  State  Public 
School  and  the  salary  bill  which  contains 
items  for  the  salaries  of  officers  of  the  same 
I  Institution  show  that  both  bills  were  drawn 
I  with  reference  to  the  changed  conditions  of 
i  the  institution,  and  that  the  Legislature  in- 
;  tended  that  those  funds  should  be  drawn  un- 
'  der  the  new  management  only.  It  was  with- 
in the  power  of  the  Legislature  to  abandon 
the  Home  for  the  Friendless,  to  change  the 
character  of  the  Institution,  or  to  suspend  Its 
functions  by  failure  to  make  appropriations. 
The  intention  to  preserve  its  Identity,  to 
continue  Its  functions,  or  to  make  appropria- 
tions for  Its  support  can  only  be  found  in 
the  language  of  legislative  enactments.  I  do 
not  find  such  intentions  in  existing  legisla- 
tion. The  making  of  appropriations  for  state 
institutions  la  within  the  exclusive  province 
of  the  Legislature.  The  Intentions  of  the 
lawmakers  in  exercising  that  power  must  be 
determined  from  their  language.  The  courts 
can  neither  supply  intentions  of  the  Legis- 
lature nor  add  language  to  legislation.  The 
appropriation  for  the  State  Public  School 
for  the  entire  biennium  may  indicate  a  leg- 
islative intention  to  pass  with  an  emergency 
clause  the  act  creating  that  Institution,  and 
thus  make  the  law  effective  upon  its  approv- 
al by  the  Governor,  but  it  does  not  show  a 
purpose  to  appropriate  money  for  employes 
at  the  Home  for  the  Friendless  for  the 
month  of  April.  In  my  judgment  the  Au- 
ditor properly  refused  to  issue  the  warrant 
on  the  ground  that  there  was  no  appropria- 
tion to  pay  it  within  the  meaning  of  the  con- 
stitutional provision  that  "no  money  shall  be 
drawn  from  the  treasury  except  In  pursu- 
ance of  a  specific  appropriation  made  by- 
law." No  specific  appropriation  was  made 
under  the  head  of  the  "State  Public  School 
at  Lincoln"  to  pay  the  wages  of  the  present 
employes  at  the  Home  for  the  Friendless 
for  the  month  of  April,  1909.  Strict  adher- 
ence to  the  constitutional  provision  quoted 
is  necessary  to  the  proper  fiscal  management 
of  the  state  government  I  fear  the  prece- 
dent established  will  be  cited  In  the  future 
to  Justify  the  misapplication  of  public  funds 
and  the  wrongdoing  of  public  officers. 


Digitized  by 


Google 


Neba 


MoCLATCHEY  t.  ANDERSON. 


67 


McCXiATCHET  t,  ANDERSON.    (No.  16,754.) 
(Sapieme  Court  of  Nebraska.    Jnne  25,  1909.) 

1.  Sales  (H  430,  442*)  — Breach  of  Wab- 
BANTT— Measure  of  Daiiaoes— Defenses.  ' 

Where  a  breach  of  warranty  occurs  and 
the  sale  had  not  been  rescinded,  the  usual 
measure  of  damages  is  the  difference  between 
the  actual  market  value  of  the  warranted  chat- 
tel and  its  market  value  if  it  had  been  as  war- 
ranted and  represented  to  be.  The  fact  that 
the  purchaser  had  in  turn  sold  the  chattel  with 
a  warranty,  and  had  not  been  compelled  to  re- 
spond in  damages  for  a  breach  thereof,  does  not 
furnish  anv  ground  for  refusing  to  submit  the 
<inestion  of  damages  for  the  breach  of  the  orig- 
inal warranty  to  the  jury. 

[Ed.  Note. — For  other  cases,  see  Sales,  Cent. 
Dig.  H  1284-1301;    Dec.  Dig.  (8  430,  442.*] 

2.  Evidence  ({  271*)— Self-Sebvinq  Decxa- 

BATION. 

In  an  action  for  breach  of  warranty  of  a 
stallion,  the  plaintiff  testified  in  effect  that 
he  rescinded  the  sale  and  returned  the  horse 
to  the  defendant,  bat  that  at  the  defendant's 
request  he  kept  the  hoise  in  his  stable,  and  that 
while  in  his  possession  the  horse  was  sold  by 
the  defendant  to  one  Gallagher.  Defendant  in- 
troduced the  testimony  oi  Gallagher  and  him- 
self to  the  effect  that  the  horse  was  purchased 
by  Gallagher  from  the  plaintiff  and  not  from 
defendant.  Plaintiff  then  offered  to  prove  that 
ar  the  time  that  Gallagher  purchased  and  took 
the  horse  he  told  Gallagher  that  the  horse  did 
not  belong  to  him,  but  belonged  to  the  defend- 
ant. This  evidence  was  excluded  by  the  court 
upon  objection.  Beld.  that  the  offered  evidence 
was  a  self-serving  declaration  of  the  plaintiff 
made  after  the  fact,  and  was  properly  excluded. 
[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent.  Dig.  H  10C8-1079,  1081-1104;  Dec.  Dig. 
f  271.*] 

3.  Appeai.  awd  Ebhor  (J  216*)- Pbesenta- 
•nos  AWD  Reservation  of  Gbodnds  of 
Review— Instructions. 

If  a  party  believes  that  the  Instructions  of 
the  court  are  not  sufficiently  definite  or  specific 
to  properly  present  the  issues  to  the  Jury,  it 
is  his  duty  to  request  or  tender  more  definite 
and  specific  instructions,  and,  failing  in  this,  he 
cannot  assign  the  indefiniteness  of  the  court's 
instructions  as  grounds  for  reversal. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error.  Dec.  Dig.  J  216:*  Trial.  Cent.  Dig.  ti 
(527,  628.  630-C41,  660,  662-676.] 

4.  Appeal  and  Ebbob  (§  1002*)— Review— 
Questions  of  Fact. 

When  questions  of  fact  are  decided  by  a 
jury  upon  conflicting  evidence,  the  verdict  will 
not  be  set  aside  on  the  ground  of  insufficient 
evidence,  unless  it  is  manifestly  wrong. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error.  Cent  Dig.  S§  3935-3937;  Dec.  Dig.  8 
1002.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Seward  Coun- 
ty;   Good,  Judge. 

Action  by  Joseph  H.  McClntchey  against 
John  S.  Anderson.  Judgment  for  defend- 
ant, and  plaintiff  appeals.    Affirmed. 

France  &  France  and  Landls  &  Schick,  for 
appellant  J.  J.  Thomas,  M.  D.  Carey,  and 
Edwin  Vail,  for  appellee. 

LETTON,  J.  This  action  was  brought  by 
the  plaintiff  to  recover  damages  for  breach 


of  warranty  npon  a  stallion  named  Tnplter, 
which  he  procured  from  tbe  defendant  in 
exchange  for  a  stallion  named  Stobal  and 
$300  In  money.  The  defendant  admits  the 
exchange  of  stallions  and  the  receipt  of  the 
money,  but  denies  the  warranty.  He  also 
alleged  that  the  plaintiff  warranted  the 
stallion  Stobal,  that  there  was  a  breach  of 
tbls  warranty,  and  prayed  for  damages  for 
the  breach.  In  reply,  the  plaintiff  admits 
the  warranty  of  the  stallion  Stobal,  and  de- 
nies a  breach.  There  was  a  verdict  for  tbe 
defendant  on  the  plaintiff's  cause  of  action, 
and  for  the  plaintiff  on  the  counterclaim. 
Appellant's  first  contention  is  that  the  court 
erred  in  submitting  the  counterclaim  of  the 
defendant  to  the  Jury  for  tbe  reason  that 
shortly  after  he  acquired  the  stallion  Stobal 
he  sold  him  to  one  Wertman,  with  a  -warran- 
ty that  he  was  a  sure  breeder  and  foal  get- 
ter; that  Anderson  had  not  been  compelled 
to  pay  anything  to  Wertman  on  account  of 
a  breach  of  this  warranty,  and  therefore, 
cannot  recover  against  McClatchey  until  be 
has  been  compelled  to  respond  to  Wertman 
in  damages.  We  believe  this  to  he  an  erro- 
neous idea  as  to  law.  Tbe  breach  of  war- 
ranty, if  any,  occurred  at  the  time  of  tbe 
sale,  and  tbe  purchaser  upon  discovery  of 
tbe  breach  was  entitled  to  recover  tbe  dif- 
ference between  the  actual  market  value 
of  tbe  animal  and  Its  market  value  had  ft 
been  as  warranted  and  represented  to  him. 
Young  v.  Fllley,  19  Neb.  543,  26  N.  W.  266 ; 
(Jlark  V.  Deerlng,  29  Neb.  293,  45  N.  W.  456; 
Burr  V.  Redhead,  52  Neb.  617,  72  N.  W. 
1058;  Sutherland  on  Damages  (3d  Ed.)  } 
670.  The  fact  that  Anderson  had  sold  tbe 
horse  In  no  wise  affected  his  right  to  recover 
upon  the  warranty,  and  It  was  proper  to 
submit  tbe  question  to  the  Jury.  In  any 
event  no  prejudice  to  the  pltflntiff  is  shown 
because  the  Jury  found  In  bis  favor  on  this 
issue.  It  is  insisted  that  because  of  the 
counterclaim  the  Jury  set  off  tbe  damages 
for  this  breach  against  the  damages  prop- 
erly accruing  to  the  plaintiff,  but  this  Is  a 
mere  speculation  which  we  are  not  at  lib- 
erty to  consider  or  treat  as  of  any  weight 
In  the  way  of  argument 

2.  The  alleged  error  most  strenuously  com- 
plained of  was  tbe  rejection  by  the  court  of 
the  plaintiff's  offer  to  prove  that  he  told  one 
Gallagher  that  the  stallion  Jupiter  did  not 
belong  to  him,  but  belonged  to  Anderson  at 
the  time  that  Gallagher  became  tbe  owner 
of  tbe  horse.  The  plaintiff  testified  that 
be  returned  this  stallion  to  tbe  defendant, 
but  that  defendant  requested  him  to  keep 
the  horse  at  plaintiff's  barn  in  York  until 
he  could  dispose  of  him,  and  that  defend- 
ant afterwards  sold  him  to  Gallagher.  This 
was  denied  by  the  defendant,  who  introduc- 
ed evidence  to  show  that  Gallagher  dealt 
with  the  plaintiff  for  the  stallion  Jupiter  and 
purchased  the  horse  from  him  and  not  from 


*For  otlMr  cases  le*  cams  toplo  and  section  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  IC 


68 


122  NORTHWESTERN  REPORTER. 


(Neb. 


defendant  We  think  the  court  was  clearly 
right  in  excluding  this  testimony.  The  dec- 
larations were  self-serving  statements  made 
after  the  transaction,  In  the  absence  of  the 
opposite  party.  Under  no  rule  of  evidence  of 
which  we  are  aware  could  they  have  proper- 
ly been  received.  Commercial  Nat.  Bank 
V.  Brill,  37  Neb.  62G,  56  N.  W.  382;  Zobel  v. 
Baueraachs,  65  Neb.  20,  75  N.  W.  43.  It  is 
argued  that  the  rejected  evidence  should 
have  been  received  In  order  to  meet  the  evi- 
dence of  Gallagher,  but  It  is  clearly  incom- 
petent. 

3.  The  plaintiff  testified  that  he  bred  the 
horse  Jupiter  to  between  45  and  50  mares; 
that  with  one  or  two  exceptions  each  <was 
served  three  times,  but  that  the  horse  was 
useless.  During  the  trial  plaintiff  was  per- 
mitted to  amend  his  petition  so  as  to  claim 
$250  damages  for  expenses  in  keeping  the 
horse  Jupiter  during  the  season  of  1905. 
Following  this  amendment,  the  plaintiff  re- 
turned to  the  witness  stand  and  testified 
that  he  kept  a  record  of  the  mares  served. 
This  record  was  offered  In  evidence,  but 
was  objected  to  as  incompetent  and  imma- 
terial and  not  being  a  book  account  such  as 
the  statute  permits  to  be  Introduced  as  orig- 
inal evidence.  The  court  sustained  the  ob- 
jection, but  permitted  the  plaintiff  to  refresh 
his  recollection  by  using  the  book,  and  per- 
mitted counsel  to  use  It  upon  cross-examina- 
tion. This  ruling  Is  complained  of.  The  dis- 
trict court  did  not  err  in  refusing  to  admit 
this  book  in  evidence.  It  does  not  fall  with- 
in the  statutory  requirements  as  to  books  of 
original  account,  neither  was  it  admissible 
as  an  Independent  memorandum,  the  prop- 
er foundation  not  being  laid  by  proof  that 
the  entries  were  true  and  correct  The 
plaintiff  was  allowed  to  refresh  his  memory 
by  Its  use,  and  we  think  this  was  all .  he 
was  entitled  to. 

4.  A  large  number  of  errors  are  assigned 
with  respect  to  the  reception  or  rejection  of 
evidence.  To  take  up  each  complaint  In  de- 
tali  would  extend  this  oplulou  to  an  unnec- 
essary length,  but  we  find  no  prejudicial  er- 
ror in  the  rulings  of  the  court  thereon.  There 
is  a  direct  conflict  In  the  testimony  with  ref- 
erence to  the  conversation  between  the  par- 
ties at  the  time  of  the  purchase  of  the  horse 
Jupiter.  The  plaintiff  testifies  to  a  positive 
warranty,  while  the  defendant  testifies  that 
the  horse  was  unsound,  that  he  so  Informed 
plaintiff  at  the  time  of  purchase,  that  If  the 
horse  had  been  sound  he  would  have  been 
worth  from  $1,500  to  $2,000,  but  being  In  the 
condition  that  he  was  his  price  was  only 
$S00,  that  the  plulnUff  Inspected  a  number 
of  other  stallions  which  the  defendant  had 
for  sale,  but  because  Jupiter  was  an  especial- 
ly fine  horse  In  size,  style,  and  breedhug,  the 
low  price  at  which  he  was  offered  Induced 
the  plaintiff  to  purchase,  although  not  war- 
ranted. There  Is  also  a  direct  conflict  of 
evidence  with  regard  to  the  transaction  with 
Gallagher;    plaintiff  asserting  that  the  de- 


fendant disposed  of  the  horse  Jupiter  to 
Gallagher,  while  the  defendant  testified  that 
he  merely  informed  plaintiff  that  Gallagher 
bad  brought  some  horses  from  the  west  that 
he  would  like  to  trade  for  the  horse  Jupiter, 
and  that  he  had  nothing  to  do  with  the 
transaction  between  Gallagher  and  McClatch- 
ey  further  than  to  bring  the  parties  together. 

5.  Complaint  is  made  that  the  court  erred 
in  permitting  the  affidavit  of  the  defendant 
for  continuance  to  be  read  in  evidence  to  the 
Jury.  The  record  shows  that  a  motion  for  a 
continuance  was  made  by  the  defendant  for 
the  purpose  of  procuring  the  testimony  of 
Gallagher,  that  the  same  was  overruled,  and 
that  an  agreement  was  made  by  the  plaintiff 
In  open  court  that  the  witness  Gallagher,  If 
present  would  testify  as  stated  In  the  affida- 
vit, and  that  it  might  be  read  In  evidence 
at  the  trial.  When  the  affidavit  was  offered 
the  plaintiff  objected  on  the  ground  that  the 
plaintiff  consented  to  the  reading  of  this  af- 
fidavit In  evidence  upon  the  condition  that 
the  case  should  be  tried  upon  the  26th  of  De- 
cember. The  court,  however,  recited  the 
agreement  made  of  record  as  above  set  forth 
and  joverruled  the  objection.  After  making 
an  unconditional  agreement  of  record  that 
this  affidavit  should  be  read  in  evidence,  the 
plaintiff  was  in  no  position  at  the  trial  to  ob- 
ject to  Its  Introduction,  and  has  no  standing 
In  this  court  to  complain  of  the  action  of 
the  district  court  in  permitting  It  to  be  read 
In  evidence. 

6.  Complaint  Is  made  of  the  giving  of  in- 
structions 3  and  4  by  the  court  In  these  in- 
structions the  jury  was  told,  in  substance, 
that  the  material  facts  In  the  petition  were 
the  warranty,  reliance  thereon,  a  breach  of 
the  warranty,  that  the  plaintiff  was  damaged 
thereby,  and  also  that  the  defendant  took 
back  the  horse  Jupiter  and  traded  him  for 
western  horses  and  $200  In  cash,  and  that  if 
they  found  such  facts  to  be  true  the  defend- 
ant would  be  liable  to  the  plaintiff  in  dam- 
ages, but  that  if,  on  the  contrary,  they  be- 
lieved that  the  defendant  did  not  warrant  the 
stallion,  but  told  the  plaintiff  before  the  ex- 
change that  the  horse  was  unsound,  and  ex- 
pressed his  opinion  that  it  was  an  average 
foal  getter,  then  the  expression  of  opinion 
would  not  constitute  a  warranty,  and  the 
plaintiff  cannot  recover.  The  court  further 
Instructed  the  Jury  that  if  they  tound  for  the 
plaintiff  they  should  allow  him  the  difference 
between  the  value  of  the  horse  Jupiter  if  be 
bad  been  warranted  and  his  real  value  as 
shown  by  the  evidence  at  the  time  of  the  ex- 
change, together  with  expenses  of  keeping 
and  standing  the  horse  for  the  season  of 
1905,  and  that  from  this  sum  they  should  de- 
duct the  value  of  the  western  horses  as  found 
from  the  evidence  and  the  $200  in  cash  paid 
by  Gallagher,  and  the  difference  between 
these  two  latter  sums  and  the  first  will  be  the 
amount  of  plaintiff's  damages.  These  In- 
structions were  based  upon  the  Issues  as 
made  by  the  pleadings.    If  the  plaintiff  had 


Digitized  by 


L-oogle 


Neb^ 


BRIG6S  ▼.  ROYAL  HIGHLANDERS. 


established  the  anegatlons  of  hia  peUtlon  to 
the  satlsfactloii  of  the  Jnry,  be  would  have 
been  entitled  to  recover  the  difference  be- 
tween the  value  of  the  horse  Jupiter  as  he  ac- 
tually was  and  what  be 'would  have  been 
worth  had  he  been  as  warranted;  but  If,  as 
he  alleged,  the  defendant  had  taken  back  the 
horse  and  given  the  plaintiff  $200  in  money 
and  horses  of  the  value  of  $300  in  exchange, 
the  plaintlfTs  recovery  would  be  the  differ- 
ence in  value  less  the  amount  which  be  had 
thus  received.  No  Instruction  was  requested 
or  tendered  by  plaintiff  asking  a  morb  definite 
statement  The  plaintiff  framed  his  petition 
so  as  to  present  these  two  questions  to  the 
jury,  and  while  the  instructions  might  have 
distinguished  the  Issues  more  clearly,  the 
plaintiff  having  failed  to  request  more  defi- 
nite or  specific  instructions  and  having  pre- 
sented the  Issues  in  such  manner  cannot  now 
complain  that  they  were  Imperfectly  stated. 
&  a  &  P.  R  R.  Co.  V.  Finlayson,  16  Neb.  578, 
20  N.  W.  860,  49  Am.  Rep.  724;  BrowneU  v. 
Fuller,  60  Neb.  558,  83  N.  W.  669;  Barney  T. 
Pinkham,  37  Neb.  6G4,  56  N.  W.  323. 

7.  Lastly  It  Is  insisted  that  the  evidence 
does  not  support  the  verdict.  Where  there 
is  a  direct  conflict  in  the  testimony,  there  Is 
sufficient  to  have  supported  a  verdict  for  ei- 
ther party.  It  is  impossible  that  the  stories  of 
all  the  witnesses  can  be  true.  This  being  the 
case,  the  jury  are  the  judges  of  the  facts,  and 
we  have  repeatedly  held  that,  where  quee- 
tions  of  fact  are  decided  by  a  jury  upon 
conflicting  evidence,  the  verdict  will  not  be 
set  aside  on  the  ground  of  insufllclent  evi- 
dence unless  it  la  manifestly  wrong.  While 
there  Is  room  for  considerable  difference  of 
opinion  as  to  the  merits  in  this  case,  the  ver- 
dict is  not  manifestly  wrong,  and  this  court 
would  not  be  justified  in  setting  it  aside. 
The  jury  evidently  considered  that  this  was 
a  case  of  "diamond  cut  diamond."  We  are 
not  able  to  say  that  they  did  not  reach  a  cor- 
rect result 

The  judgment  of  the  district  court,  there- 
fore, is  affirmed. 


BBI60S  V.  ROYAL  HlGEffiANDERS. 
(No.  15,57a) 

(Supreme  Court  of  Nebraska.    June  25,  1909.) 

L  iHSUBAifCE    (I    693*)— Mdtdai,   BENErny- 
.   Bt-La.w— Stwct  COWBTBUCnOW. 

A  by-law  providing  for  a  forfeiture,  adopt- 
ed by  a  fraternal  beneficiary  association  sub- 
■equent  to  the  Issuance  by  it  of  a  benefit  certif- 
icate, will  be  strictly  construed  against  the  aa- 
Mciation,  and,  if  passed  in  contravention  of  the 
provisions  of  the  statnte  governing  such  asso- 
ciation, it  will  be  held  void  and  of  no  effect. 
Lange  v.  Royal  Highlanders,  75  Neb.  188,  106 
N.  W,  224,  110  N.  W.  1110,  10  L.  R.  A.^.  SJ 
666,  121  Am.  St  Rep.  786.  ' 

[Ed.  Note^— For  other  cases,  see  Insurance. 
Cent   Dig.  |  1833;  Dee.  Dig.  g  693.*] 


2.  INSORARCE  (f  693*)— MtJTtlAI,  BiwiEFrr— 
CBAROK  in  TUUfS  OF  CERTlriCATE. 

"Where  a  fraternal  benefit  association  has 
not  complied  with  the  provisions  of  section  1, 
p.  260,  c.  47,  of  the  Acts  ot  1897,  and  adopted 
a  representative  form  of  government,  its  gov- 
erning body  is  without  power  to  adopt  an  edict 
or  by-law  changing  the  terms  and  obligations 
of  a  mutual  benefit  certificate  theretofore  issued 
to  one  of  its  members."  LAnge  v.  Royal  High- 
landers, 75  Neb.  106,  106  N.  W.  224,  110  N. 
W.  1110,  10  L.  R.  A.  (N.  S.)  660,  121  Am.  St. 
Rep.  786. 

[Ed.   Note.— For  other  cases,  see  Insurance, 
Dec.  Dig.  8  693.*] 

3.  INSCBANCE  (§  693*)— Mutual  Benefit  So- 
CIBTT— Repbesentativb  Fobu  o*  Govebn- 
uent. 

Where,  under  the  provisions  of  the  consti- 
tution and  by-laws  of  a  fraternal  beneficiary  as- 
sociation, the  delegates  to  the  governing  body 
thereof,  regularly  elected  by  the  members  ot 
said  association,  cannot  of  themselves,  and  with- 
out the  participation  of  members  of  committees 
appointed  from  members  outside  of  such  dele- 
gates, legally  and  of  right  adopt  alter,  or  amend 
*'"•   edicts  and   laws   of  such   association   and 


the 


absolutely  control  the  government  of  the  same, 
such  governing  body  is  not  a  representative 
body,  and  an  association  so  constituted  and  gov- 
erned cannot  be  said  to  have  a  representative 
form  of  government 

[Bd.  Note.— For  other  cases,  see  Insurance. 
Dec.  Dig.  f  693.*) 

4.  INSUBANCE   (I   788*)— MuTDAi,   Benefit^ 

Suicide. 

Suicide  will  not  defeat  a  recovery  upon  a 
benefit  certificate  in  a  fraternal  beneficiary  as- 
sociation unless  such  certificate,  together  with 
the  lawfully  enacted  laws  and  edicts  of  such  as- 
sociations, so  provide  in  express  terms. 

[Ed.  Note.— For  other  cases,  see  Insurance. 
Cent.  Dig.  f  1956;   Dec.  Dig.  f  78&*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court  Cuming  Coun- 
ty; Graves,  Judge. 

Action  by  Myra  B.  Briggs  against  the  Roy- 
al Highlanders.  Judgment  for  plaintiff,  and 
defendant  appeals.     Affirmed. 

Halner  &  Smith,  for  appellant  A.  R.  Ol- 
son, for  appellee 

FAWCETT,  J,  On  June  5,  1897,  Robert  N. 
Briggs,  whom  we  will  hereinafter  designate 
as  the  "assured,"  became  a  member  of  a  local 
castle  of  defendant  society,  and  under  that 
date  received  from  defendant  a  benefit  cer- 
tificate upon  his  life  in  the  sum  of  $3,000, 
payable  at  bis  death  to  his  wife  (plaintiff) 
and  son.  In  April,  1905,  the  assured,  for 
the  sole  purpose  of  changing  his  beneficiary, 
surrendered  his  certificate  of  June  5,  1897, 
and  received  from  defendant  as  a  substitute 
therefor,  the  benefit  certificate  in  suit  De- 
fendant wrote  on  the  face  of  such  later  cer- 
tificate the  words:  "The  date  of  certificate 
No.  1,741  [the  former  certificate]  shall  be  the 
date  on  which  the  settlement  of  this  certifi- 
cate shall  be  based."  In  Its  answer  defend- 
ant admits  that  the  later  certificate  "was  is- 
sued in  lieu  of  said  first-named  certificate." 
The  defense  pleaded  is  suicide.  It  is  con- 
ceded that,  at  the  time  the  assured  became 


•For  otlMT  CSMS  SM  sua*  topis  aad  secthrn  NUMBER  U  Deo.  *  Am.  Dlgi.  1907  to  dat«,  *  Reporter  Indww 

Digitized  by  VjOOQ  l€ 


70 


122  NORTHWESTEEU  REPORTKH. 


(Neb. 


a  member  of  defendant  society  and  obtained 

his  original  certificate,  there  was  nothing  In 
the  edicts  and  laws  of  the  society  malclng 
suicide  a  defense;  but  defendant  alleges: 
That  in  June,  1901,  its  edicts  and  by-laws 
were  amended  by  Inserting  the  following  pro- 
vision: "The  beneQt  certificate  Issued  to  a 
member  shall  become  void,  and  all  benefits 
thereunder  shall  be  forfeited  in  case  the 
member  shall  die  from  suicide,  felonious  or 
otherwise,  sane  or  insane."  And  that  in  Sep- 
tember, 1005,  they  were  again  amended  so 
as  to  provide:  "In  case  of  the  suicide  of  a 
member,  either  sane  or  insane,  the  amount 
of  all  contributions  of  a  member  to  the  fidel- 
ity fund  of  the  fraternity  only  shall  be  paid 
to  the  beneficiary  named  in  the  certificate." 
And  that  the  amount  contributed  by  assured 
during  bis  lifetime  to  the  fidelity  fund  is  the 
sum  of  I10C.27,  which  amount  It  tendered 
plaintiff,  and  which  plaintllf  refused,  and 
that  It  has  kept  the  tender  good  by  depositing 
the  same  in  court  for  the  use  and  benefit  of 
the  plaintiff.  The  reply  admits  that  the  as- 
sured committed  suicide,  and  alleges:  That 
the  acts  of  defendant  in  attempting  to  amend 
its  edicts  and  by-laws  in  June,  1901,  and  in 
September,  1905,  are  void,  for  the  reason 
that  defendant  did  not,  at  either  of  said 
times,  have  a  representative  form  of  govern- 
ment; that  the  body  designated  "executive 
castle,"  which  is  the  governing  body  of  de- 
fendant, is  not  a  representative  body;  that 
it  is  not  elected  by  the  members  of  said  de- 
fendant nor-  by  delegates  chosen  thereby; 
and  that  the  same  is  an  arbitrary  self-per- 
petuatlng  body,  not  representative  in  form, 
and  not  authorized  or  empowered  by  defend- 
ant to  enact  by-laws,  rules,  or  edicts  for  the 
government  of  the  members  of  defendant,  or 
to  revise  or  amend  the  same.  There  was  a 
trial  to  the  court  •without  the  intervention 
of  a  Jury,  and  Judgment  for  the  plaintiff  for 
the  full  amount  of  her  certificate,  with  in- 
terest, from  which  Judgment  this  appeal  is 
prosecuted. 

The  motion  for  a  new  trial  in  the  court 
below  is  as  follows:  "(1)  That  the  findings 
of  the  court  are  not  sustained  by  the  evi- 
dence In  the  case,  but  are  contrary  to  tbe 
manifest  weight  thereof.  (2)  The  findings 
and  Judgment  of  the  court  are  contrary  to 
the  law  of  the  case.  (3)  That  the  finding 
and  Judgment  of  the  court  should  have  been 
for  the  said  defendant  instead  of  for  the 
said  plaintiff."  This  motion  raises  but  the 
one  question :  Is  the  Judgment  of  the  dis- 
trict court  sustained  by  the  evidence?  If  we 
give  any  consideration  whatever  to  the  sec- 
ond paragraph  of  the  moMoD,  then  the  ques- 
tion would  simply  be :  Can  a  Judgment  bas- 
ed upon  the  evidence  actually  received  be 
sustained? 

Some  point  Is  made  by  defendant  that  the 
amendment  of  its  edicts  and  laws  In  1901 
was  prior  to  the  Issuance  of  tbe  certificate  In 
suit,  and  that  tbe  issuance  and  acceptance 
of  such  certificate  was  subject  to  the  edicts 


as  so  amended.    Tbfa  contention  Is  without 
merit    The  mere  substitution  of  the  certifi- 
cate in  suit  for  the  one  first  issued,  for  tbe 
sole  purpose  of  changing  the  beneficiary,  did 
not  constitute  such  certificate  a  new  and  in- 
dependent contract     We  think   it  is  clear 
that  the  certificate  in  suit  must  be  consider- 
ed, so  far  as  its  date  and  the  rights  and  lia- 
bilities  of  the  respective   parties   are   con- 
cerned, as  if  it  had  been  Issued  upon  the 
date  of  the  issue  of  said  first  certificate,  viz., 
the  date  of  assured's  admission  into  the  so- 
ciety.   That  the  alleged  change  in  the  edicts 
and  laws  of  defendant  by  Its  convention  of 
June,  1001,  was  ineffectual  and  void,  has  al- 
ready  been    determined   by   this   court    In 
Lange  y.  Royal  Highlanders  (this  same  de- 
fendant)  75  Neb.  188,  IOC  N.  W.  224.  110  N. 
W.  1110,  10  L.  R.  A.  (N.  S.)  C06,  121  Am.  St. 
Rep.  786.    The  opinion  in  that  case  so  fully 
and  fairly  sets  out  tbe  history  of  defendant 
from  its  organization  down  to  and  Including 
its  convention  of  June,  1901,  and  its  attempt- 
ed amendment  of  its  edicts  and  by-laws  at 
that  convention,  that  it  need  not  be  restated 
here.     Tbe  defense  in  that  case,  as  In  this, 
was  suicide.     We  there  held  that  defendant 
down  to  and  including  Its  convention  of  June, 
1901,  had  not  adopted  a  representative  form 
of  government,  and  that  its  attempted  change 
of  the  by-laws  at  that  convention  was  there- 
fore null  and  void.    Down  to  that  time  there- 
fore the  rights  of  the  parties  in  this  case 
must  be  considered  as  having  been  determin- 
ed by  our  decision  in  that  case. 

This  leaves  for  our  consideration  the  sole 
question  as  to  wuether  or  not  the  action  of 
defendant  in  September,  1905,  was  of  such 
a  character  as  to  relieve  it  of  liability  in  this 
action.  The  convention  of  September,  1905, 
was  composed  of  25  delegates  elected  from 
25  districts,  tbe  number  of  boundaries  of 
which  districts  were  determined  by  an  exec- 
utive committee,  which  had  been  selected  by 
the  unrepresentative  body  of  1901,  together 
with  13  officers,  also  elected  by  that  body, 
and  10  committeemen  apiiolnted  by  the  presi- 
dent elected  at  that  convention.  Did  this 
constitute  a  representative  government?  It 
is  claimed  by  defendant  that  when  the  by- 
laws were  voted  upon  at  the  conveution  of 
September,  1905,  the  10  committeemen,  by  re- 
quest of  the  president,  refrained  from  voting, 
and  that  the  change  in  the  edicts  at  that 
convention  was  voted  for  by  all  of  the  dele- 
gates. The  fact  remains,  however,  as  admit- 
ted by  the  secretary  of  defendant  upon  the 
witness  stand,  that  these  10  committeemen 
had  a  legal  right  to  vote:  "Q.  Now  this  state- 
ment of  the  president  requesting  the  mem- 
bers of  tbe  committee,  who  were  not  dele- 
gates, not  to  vote  upon  the  adoption  of  these 
edicts,  was  a  mere  voluntary  request  was 
it  not?  A.  Well,  I  should  say  it  was.  At 
least  they  did  not  aslc  him  to  make  any  such 
provision.  Q.  But  under  the  edicts  under 
which  that  executive  castle  bad  convened, 
theft  members  of  the  committees  were  entitl- 


Digitized  by  VjOOQ  l€ 


Nell.) 


BRIGOS  y.  ROTAL  HIGHLANDERS. 


71 


ed  to  T»to  thereon?  'A.  They  were;  hot  he 
woald  not  have  appointed  them  committee- 
men had  they  Insisted  npon  voting."  The 
president  does  not  confirm  the  assertion  made 
In  the  latter  clause  of  this  answer.  More- 
over, the  rolumlnous  journal  of  the  proceed- 
ings of  that  convention,  introduced  In  evi- 
dence, does  not  show  tnat  the  president  ever 
made  such  a  request  or  imposed  any  such  re- 
striction upon  the  committeemen.  The  jour- 
nal does  show,  however,  that  none  of  the 
members  of  that  convention  voted  on  any 
change  of  the  by-laws.  The  chairman  of  the 
committee  on  edicts  made  a  lengthy  report  to 
the  convention,  recommending  a  number  of 
changes  of  certain  specific  sections  in  the 
edicts  and  by-laws  theretofore  existing, 
among  which  was  one  recommending  a 
change  In  section  141,  designating  the  condi- 
tions which  should  thereafter  be  a  part  of 
every  certificate  Issued  by  defendant,  which 
proposed  amendment  provided:  "That  in 
case  of  the  suicide  of  a  member,  either  sane 
or  insane,  the  amount  of  all  contributions 
of  the  member  to  the  fidelity  fund  of  the  fra- 
ternity only  shall  be  paid  to  the  beneficiary 
named  In  this  certificate."  The  journal  then 
^ows  that,  after  a  short  discussion  of  that 
proposed  change,  the  president,  who  Is  desig- 
nated by  the  order  as  "most  Illustrious  pro- 
tector," asked:  "Are  there  any  other  sugges- 
tions? If  not,  the  section  will  be  passed." 
This  Is  the  only  record  of  any  action  taken 
npon  the  proposed  amendment.  We  hardly 
think  this  sustains  defendant's  contention 
tliat  an  of  the  delegates  at  that  convention 
voted  for  the  proposed  change. 

The  laws  of  the  order  provide  that:  "The 
edicts  of  the  Royal  Highlanders  shall  not  be 
altered  or  amended  except  when  two  thirds 
of  all  the  members  of  the  executive  castle 
favor  snch  changes."  Section  203,  Edicts  of 
1001.  This  language  is  plain  and  unamblgu- 
ons.  and  prohibits  any  change  of  the  edicts  of 
the  society  except  when  two-thirds  of  all  its 
manbers  favor  such  change.  Under  the 
wording  of  this  section  of  the  edicts,  any 
member  of  the  executive  castle  who  refrained 
from  voting  on  any  proposed  change  of  the 
edicts  would  thereby  In  eCtect  vote  against 
It  It  Is  conceded  that  there  were  48  mem- 
bers of  that  executive  castle,  viz.,  25  dele- 
gates, 13  officers,  and  10  committeemen.  The 
executive  castle  being  composed  of  that  many 
members,  its  edicts  could  not  be  changed  un- 
less 36  of  those  members  voted  for  such 
change.  The  fact  therefore  that  the  presi- 
dent might  request  the  10  committeemen  to 
refrain  from  voting,  or  that  the  10  commit- 
teemen and  the  13  officers  should  all  refrain 
from  voting,  would  not  add  to  the  powers  of 
the  regnlarly  elected  delegates  to  amend  any 
of  the  edicts  of  the  society.  If  we  exclude 
the  committeemen,  the  result  is  the  same. 
It  Is  not  dalmed  that  the  13  officers  elected 
by  the  convention  of  June,  1901,  promised,  or 
were  even  requested,  to  refrain  from  voting. 


Their  right  to  vote  Is  not  questioned.  Ex- 
cluding then  the  10  committeemen.  It  would 
still  be  impossible  for  the  25  delegates,  alone, 
to  make  any  change  in  the  edicts  and  laws 
which  previously  Jiad  been  adopted  by  the  un- 
representative body  of  1901.  There  being  25 
delegates  and  13  officers,  a  total  of  38,  in  the 
convention  of  1905,  it  would  require  26  votes 
to  change  any  of  the  edicts  and  by-laws  of 
the  society,  bo  that  the  officiary  of  this  so- 
ciety .elected  at  a  convention  in  June,  1901, 
composed  of  0  delegates  and  16  officers,  could 
at  the  convention  of  1905  effectually  balk  any 
attempt  at  amendment  on  the  part  of  the 
delegates.  As  we  view  the  matter,  the  ques- 
tion of  whether  the  committeemen  or  the  of- 
ficers, or  both,  refrained  from  voting  on  the 
single  question  of  amending  the  edicts,  Is  Im- 
material. The  test  of  whether  or  not  defend- 
ant had  a  representative  form  of  government 
Is  not  whether  certain  members  of  its  govern- 
ing body  refrained  from  voting  on  some  par- 
ticular question,  but,  rather,  whether  they 
had  a  voice  and  the  right  to  vote  on  all 
questions  of  government.  That  the  officers 
and  committeemen  elected  and  appointed  as 
herein  shown  did  have  such  right  is  beyond 
dispute. 

It  is  insisted  by  defendant  that  the  conven- 
tion of  September,  1905,  amended  section  9 
of  Its  laws  and  edicts  by  adding  the  words, 
"provided,  however,  only  elected  officers  and 
the  accredited  delegates  from  representative 
castles  shall  be  entitled  to  vote,"  and  that 
by  such  amendment  appointive  officers  and 
committeemen  would  not  thereafter  be  en- 
titled to  that  right  If  this  change  In  section 
9  would  have  the  effect  of  subsequently  giv- 
ing defendant  a  representative  form  of  gov- 
ernment, which  we  do  not  decide,  it  cannot 
avail  defendant  in  this  case,  for  two  reasons : 

(a)  The  statute  under  which  defendant  is 
operating  provides  that:  "Every  such  so- 
ciety Shan  file  with  the  auditor  of  public 
accounts  a  copy  of  Its  constitution  and  by- 
laws duly  certified  to  by  the  secretary  or 
corresponding  officer  and  before  any  amend- 
ment, change  or  alteration  thereof  shall  take 
effect  or  be  in  force  a  copy  of  such  amend- 
ment, change  or  alteration,  duly  certified  to 
by  its  secretary  or  corresponding  officer,  shall 
l>e  filed  with  the  auditor  of  public  accounts." 
Oobbey's  Ann.  St  1907,  $  6656.  The  record 
shows  that  a  copy  of  the  amendment  of  the 
edicts  and  by-laws  of  the  convention  of  Sep- 
tember, 1905,  was  not  certified  by  the  chief 
secretary  and  filed  with  the  auditor  of  public 
accounts  until  December  1,  1905,  so  that  they 
did  not  become  effective  until  long  after  the 
adjournment  of  the  convention  which  It  is 
claimed  made  the  change  in  regard  to  suicide. 

(b)  It  further  appears  from  the  testimony  of 
the  chief  secretary  that  when  the  change 
was  made  by  the  convention  of  September, 
1905,  the  rules  and  regulations  provided  for 
by  the  convention  of  June,  1901,  were  follow- 
ed. It  also  appears  in  the  record  that  the  of- 
ficers elected  at  the  convention  of  Septem- 


Digitized  by  VjOOQ  l€ 


72 


122  NORTHWESTERN  REPORTER. 


(Neb. 


ber,  1905,  were  not  Installed  In  office  until 
the  closing  act  of  that  convention  on  the 
last  day  of  its  session.  It  therefore  appears 
that  that  convention,  during  its  entire  ses- 
sion, was  subject  to  the  control  of  officers 
and  committeemen  which  rendered  its  pro- 
ceedings, as  to  any  amendment  of  its  laws 
and  edicts  at  least,  unrepresentative  in  char- 
acter and  void. 

It  seems  useless  to  pursue  this  matter  fur- 
ther. Viewed  from  any  standpoint,  the  exec- 
utive castle*  as  It  existed  In  September,  1905, 
was  not  a  representative  body,  and  as  so 
constituted  the  defendant  did  not  have  a 
representative  form  of  government.  It  fol- 
lows therefore  that  the  attempted  change  of 
the  by-laws  in  September,  1905,  was  as  Inef- 
fectual as  the  attempted  change  thereof  in 
June,  1901. 

There  being  nothing  in  the  certificate  of 
membership  Issued  to  the  assured,  or  in  the 
edicts  and  by-laws  of  the  defendant  as  they 
existed  at  the  time  he  was  admitted  Into 
membership  and  received  his  certificate, 
which  exempted  the  defendant  from  liability 
in  the  event  of  suicide,  we  must  hold  that 
the  Judgment  of  the  district  court  was  right, 
and  It  is  affirmed. 


BOCHE  V.  STATE.     (No.  15,610.) 
(Supreme  Court  of  Nebraska.     June  25,  1909.) 

1.  WrrwEssEs  (i  344*)  —  Impeachment  —  Spe- 
cific Instances. 

Proof  of  specific  acts  is  not  ordinarily  per- 
missible upon  the  question  of  general  reputa- 
tion. 

(Ed.  Note.— For  other  cases,  see  Witnesses, 
Cent.  Dig.  {{  1120-1125;    Dec.  Dig.  f  344.»] 

2.  CmMiNAL  Law  (|  822»)—Tria1/— Instruc- 
tions. 

The  instructions  discnssed  In  the  opinion 
held  to  be  without  prejudice  to  the  rights  of 
tbe  accused. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  g§  1990,  1091,  1994,  1995, 
8158;   Dec.  Dig.  {  822.*] 

8.  Witnesses  (§  308*)— Cboss-Examination— 

BlNOINQ  EFTECT. 

A  cross-examiner  Is  not  bound  by  the  an- 
swer of  a  witness  to  a  question  upon  a  sub- 
ject that  is  germane  to  the  main  issue. 

[Ed.  Note. — For  other  cases,  see  Witnesses, 
Cent.  Dig.  |  1275;   Dec.  Dig.  S  398.*] 

4.  Witnesses  (J  398*)  —  Impeachment— Col- 

latebal  Matter. 

A  witness  testified  to  a  fact  material  to 
and  in  support  of  one  of  the  defenses  inter- 
posed by  the  defendant,  and,  on.  cross-examina- 
tion, stated  that  he  had  communicated  the  fact 
in  question  to  A.  and  B.  The  state,  over  ob- 
jections, was  allowed  to  show  by  A.  and  B. 
that  the  witness  had  never  made  such  state- 
ments to  them.  Held,  that  tbe  court  in  tbe 
exercise  of  a  sound,  judicial  discretion  properly 
admitted  the  evidence. 

[Ed.  Note.— For  other  cases,  see  Witnesses, 
Cent  Dig.  {  1275 ;  Dec.  Dig.  $  398.*] 

(Syllabus  by  the  Court.) 


5.   HOUIOinE    (I    31*)— "MAHStAUOHTER." 

"Manslaughter"  Is  the  unlawful  killing  oC 
another,  without  malice,  upon  a  sudden  heat, 
or  inadvertently,  bat  in  the  commission  of  some 
unlawful  act. 

[Ed.  Note.— For  other  cases,  see  Homicide, 
Dec.  Dig.  S  31.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  5,  pp.  4338-4342 ;   vol.  8,  p.  7715.] 

Root,  J.,  dissenting. 

Error  to  District  Conrt,  Madison  County: 
Welch,  Judge. 

Herman  Boche  was  convicted  of  man- 
slaughter, and  he  brings  error.    Affirmed. 

William  V.  Allen,  Burt  Mapes,  and  M.  D. 
Tylor,  for  plaintiff  In  error.  W.  T.  Thomp- 
son, Grant  G.  Martin,  Jack  Koenlgstelu,  and 
N.  D.  Jackson,  for  the  State. 

DEAN,  J.  Herman  Boche,  who  is  herein- 
after called  the  defendant,  was  charged  witli 
murder  in  the  first  degree,  tried  and  convict- 
ed of  manslaughter,  and  sentenced  to  serve 
10  years  in  the  penitentiary.  To  reverse  the 
judgment,  he  prosecutes  error  to  this  court. 
The  record  la  voluminous  and,  among  ottt- 
ers,  discloses  these  facts:  The  defendant  Is 
a  farmer  who,  at  the  time  of  the  trial  and 
for  many  years  prior  thereto,  resided  within 
about  three  miles  of  Norfolk.  He  was  an 
Intimate  friend  of  Frank  Jarmer,  the  de- 
ceased, who  was  a  saloon  keeper  in  that  city, 
and  is  shown  to  have  been  a  man  in  moder- 
ate circumstances,  while  the  defendant  is  a 
man  of  considerable  means.  In  the  after- 
noon of  April  30,  1907,  the  defendant  was  in 
Norfolk' and  visited  the  saloon  of  Jarmer 
where  he  drank  some  liquor.  He  then  re- 
turned to  his  home,  and  after  supper  return- 
ed to  Norfolk  on  foot  and,  he  testifies,  with 
about  $800  In  currency  on  his  person,  out  of 
which  it  was  his  intention  to  loan  to  Jarmer 
$750,  in  pursuance  of  a  former  arrangement 
or  understanding  between  them,  to  procure 
a  liquor  license  for  the  fiscal  year  then  about 
to  begin,  provided  the  latter  would  give  him 
sufficient  security  for  the  loan.  The  defend- 
ant's son  Walter  corroborates  tbe  defend- 
ant's testimony  in  that  he  says  he  saw  his 
father  getting,  as  he  expressed  it,  "quite  a 
big  bunch"  of  money  at  home  before  he  left 
for  Norfolk  in  the  evening,  but  he  does  not 
know  how  much,  and  the  defendant's  wife 
testifies  that  she  missed  the  money  the  next 
day  from  the  place  where  it  was  usually 
kept.  It  Is  In  evidence  that  the  defendant, 
before  leaving  home  to  go  to  Norfolk  in  the 
evening  of  April  30th,  procured  a  revolver 
and  took  it  with  him.  The  fiscal  year  of  1006 
was  about  to  close,  and  the  testimony  tends 
to  show  that  the  deceased  was  fearful  that 
he  would  be  unable  to  raise  the  sum  of  $750, 
which  would  be  necessary  to  procure  a  liq- 
nor  license  for  tbe  ensuing  year,  and  that 
the  deceased  was  under  tbe  Impression  that 
his  saloon  license  for  1906  would  expire  on 


•rer  other  caaas  ae*  sam*  topis  and  soctlon  NUUBER  In  Dec  *  Am.  Digs-  UOT  to  data,  ft  Rapoitar  Indazas 


Digitized  by  VjOOQ  l€ 


Neb.) 


BOOHS  V.  STATE. 


78 


May  1,  180T,  tlios  necessitating  Immediate 
pajm^it  of  his  Ucenae  fee  or  tlie  closing  up 
of  bis  saloon  in  Norfolk.  The  proof  also 
shows  that  the  defendant  remained  in  Jar- 
mer's  saloon  nntil  about  midnight,  when  the 
place  was  closed,  and  the  deceased  and  the 
accused  went  to  a  restaurant  to  procure  a 
loncb.  The  defendant  testified  that  soon 
after  arrlTlng  at  the  restaurant  be  left  the 
room  for  a  few  minntes,  and  retnmlng  and 
partaking  of  some  coffee  complained  to  de- 
ceased that  it  was  not  good  and  "tasted  aw- 
fnl  bitter  and  bad,"  but  no  other  witnesses 
testified  to  this  effect  After  they  partook 
of  the  refreshments  Jarmer  procured  a  back 
driven  by  one  Lee  Vroman,  who  drove  the 
defendant  aid  the  deceased  to  a  notorious 
resort  kept  by  one  Edna  Ingham  just  outside 
the  city  limits,  where  they  remained  until 
about  5  o'clock  the  next  morning.  The  evi- 
dence shows  that  the  defendant  was  so  badly 
intoxicated  when  he  arrived  at  the  resort 
that  he  could  not  control  his  movements.  It 
Is  shown  that  he  expended  something  like 
$iO  In  that  place,  purchasing  a  large  amount 
of  beer  at  $1  a  bottle  for  the  use  of  the  in- 
mates and  visitors,  and  that  he  continued  to 
drink  beer  during  the  night,  and  at  5  o'clock 
in  the  morning  was  In  a  state  of  profound 
■tnpor. 

The  testimony  of  the  state  is  to  the  ef- 
fect that  at  about  5  o'clock  in  the  morning 
of  May  1st,  Eldna  Ingham,  desiring  to  close 
np  her  place,  the  visitors  prepared  to  depart, 
and  that  Boche  at  that  hour  was  sitting  In  a 
chair  in  the  front  room,  and,  while  he  was 
apparently  in  a  condition  of  extreme  intox- 
ication, Jarmer  pulled  him  from  his  chair 
onto  the  floor  and  dragged  him  across  the 
room,  through  the  door  and  across  the  porch, 
and  tried  to  place  him  In  Vroman's  back  that 
was  in  waiting  there,  and  that  the  defendant 
resisted  but  finally  was  overpowered  and 
placed  therein.  It  is  shown  that  he  got  out 
and  started  away,  and  that  the  defendant 
wanted  to  walk  and  the  deceased  wanted  to 
ride,  and  that  the  former  refused  and  resist- 
ed the  attempts  of  the  deceased  to  Induce 
him  again  to  get  into  the  back.  Boche  then 
drew  his  revolver,  and  deliberately  shot  Jar- 
mer down,  exclaiming  as  he  did  so:  "God 
damn  yon,  I  fix  you,  God  damn  son  of  a 
bitch."  He  completed  the  tragedy  while  his 
companion  and  friend  was  helpless  on  the 
ground  begging  for  mercy.  Jarmer  was  un- 
armed and  died  within  an  hour.  After  his 
death  but  a  small  amount  of  money  was 
found  upon  his  person,  perhaps  not  to  exceed 
$ia  The  defendant  testified  that  he  could 
not  remember  what  transpired  after  be 
drank  the  coffee  at  the  restaurant  until  he 
regained  consciousness  outside  of  the  lewd 
resort  early  the  following  morning,  and  that 
even  then  his  mind  was  cloudy,  and  his  pres- 
ent recollection  of  the  transaction  Is  uncer- 
tain, but  lie  testified  that  he  remembers  that 
tie  was  attacked  by  two  men  who  choked 


blm  and  put  their  bands  in  his  pockets,  and 
that  he  then  learned  that  bis  money  was 
gone,  and  that  upon  making  this  discovery 
he  at  once  drew  his  revolver  and  fired  in 
self-defense,  and  only  remembers  that  he 
was  then  relieved  from  further  attack  and 
started  for  home,  and  does  not  know  where 
he  went  other  than  that  he  found  himself 
the  following  night  in  a  pig  pen,  and  from 
thence  went  home. 

One  theory  advanced  by  the  defendant  was 
that  Jarmer,  knowing  that  he  bad  a  large 
amount  of  money  on  his  person,  plied  him 
with  Intoxicating  liquors  at  the  saloon,  and 
drugged  his  coffee  at  the  restaurant  and  in- 
duced him  to  drink  large  quantities  of  liquor 
at  the  resort  where  they  spent  the  remainder 
of  the  night,  and  in  the  morning,  in  com- 
pany with  the  hack  driver,  assaulted  and 
robbed  him.  The  state  produced  two  eye- 
witnesses to  the  homicide,  Vroman,  the  hack 
driver,  and  Eidna  Ingham,  the  keeper  of  the 
resort.  Dr.  Mackay  testified  for  the  defense 
that  shortly  before  the  shooting,  possibly 
a  day,  he  was  In  Jarmer's  saloon,  and  that 
while  Boche  was  in  there  drinking  Jarmer 
called  him,  the  witness,  aside,  and  said, 
referring  to  the  defendant,  he  knew  a  fel- 
low that  had  money  that  "I  can  get,  if  you 
give  me  some  drops,"  but  that  at  the  time 
be  thought  Jarmer  was  either  Joking  or 
Intoxicated,  and  did  not  give  him  any  drugs 
as  suggested.  On  cross-examination  the 
witness  was  asked  If  he  had  told  any  one 
about  Jarmer's  statement,  and  he  named 
several  persons  to  whom  he  said  he  thought 
he  bad  repeated  what  Jarmer  had  said  to 
him.  Two  of  those  individuals  were  called 
by  the  state  on  rebuttal,  and  over  defend- 
ant's objections  permitted  to  testify  that 
Mackay  never  made  the  statements  to  them. 
The  defendant  Insists  the  court  erred  in 
permitting  this  testimony  to  go  to  the  Jury, 
and  argues  that  it  is  collateral  to  the  main 
issue.  The  rule  is  elementary  that  where 
a  cross-examiner  asks  a  question,  and  the 
answer  elicited  is  a  response  that  is  wholly 
collateral,  he  is  bound  by  the  answer,  and 
cannot  call  another  witness  to  contradict 
him.  The  enforcement  of  the  rule  is  in  con- 
sonance with  reason,  and  to  relax  It  would 
tend  to  interminably  protract  the  trial  of 
even  the  most  trivial  case.  As  to  what  is 
or  Is  not  collateral  to  the  issue  in  the  im- 
mediate case  on  trial  must  then,  in  the  ex- 
ercise of  a  sound,  Judicial  discretion,  deter- 
mine the  application  of  the  rule.  This  point 
owing  to  Its  Important  bearing  in  this  case, 
has  given  us  some  perplexity,  but  after  a 
careful  examination  we  conclude  the  trial 
court  did  not  err  in  permitting  the  testimony 
complained  of  by  the  defendant  to  go  to 
the  Jury  for  the  reasons  herein  shown.  The 
inquUry  did  not,  strictly  speaking,  relate  to 
collateral  matter.  Its  purpose  was  to  turn 
a  light  directly  upon  certain  testimony  ad- 
duced upon  a  vital  point  to  test  its  proba- 
tive value.    It  was  competent  for  the  Jury 


Digitized  by  VjOOQ  l€ 


74 


122  NORTHWESTERN  RBPORTER. 


(Neb. 


to  have  before  It  erery  circumstance  obtain- 
able tbat  would  aid  In  tbe  discovery  of  the 
truth  upon  every  material  feature  of  the  case. 
As  we  view  it,  the  testimony  of  Mackay  on 
this  point  was  Important,  and,  in  view  of 
the  weight  of  authority,  it  was  competent 
for  the  trial  court  In  the  exercise  of  a  sound 
Judicial  discretion  to  permit  the  evidence 
complained  of  to  be  introduced.  One  of  the 
reasons  for  the  adoption  of  the  rule  for  ex- 
cluding inquiry  Into  purely  collateral  mat- 
ter, besides  the  commendable  one  of  brevity, 
is  that  the  Juror's  mind  may  not  be  diverted 
from  the  consideration  of  the  main  issue. 
The  holding  that  the  district  court  did  not 
err  In  permitting  the  witnesses  to  testify 
In  rebuttal  on  tbe  part  of  the  state,  tbat 
Mackay  did  not  tell  them  about  Jarmer's 
request  for  "knock-out  drops,"  Is  in  no 
sense  a  departure  from  the  rule,  nor  a  viola- 
tion of  any  of  the  reasons  for  its  adoption. 
2  Wharton,  {  5G1:  "It  has  been  held  that  a 
witness  may  be  asked  whether  be  had  not 
a  strong  bias,  or  interest,  in  tbe  case,  and, 
if  be  denies  such  Interest  or  bias,  that  he 
may  be  contradicted  by  evidence  of  bis  own 
statements,  or  of  other  implicatory  acts. 
•  *  *  It  Is  true  that  we  uave  cases  dis- 
puting this  conclusion,  but  It  Is  hard  to  see 
how  evidence  which  goes  to  the  root  of  a 
witness'  credibility  can  be  regarded  as  col- 
lateral to  the  issue." 

Smith  V.  State,  5  Neb.  181,  is  a  murder 
case  tbat  was  twice  before  this  court  One 
Crowell,  a  witness  for  the  state  at  the  sec- 
ond trial,  was  asked  if  he  did  not  testify 
on  the  former  trial  that  at  the  time  of  the 
shooting  he  was  only  10  or  15  rods  at  tbe 
most  from  the  parties.  He  answered  in 
effect:  "I  said  It  was  ten,  fifteen,  twenty, 
or  maybe  thirty  rods."  The  defense  called 
a  witness  who  was  present  at  the  former 
trial,  and  ofTered  to  prove  that  Crowell  then 
testified  be  was  10  or  15  rods  from  tbe  par- 
ties at  the  time  of  the  shooting.  This  court 
held  the  offer  was  properly  denied,  because, 
"so  far  as  appears  from  the  record,  Crowell 
could  see  what  transpired,  and  hear  the  con- 
versation of  the  parties,  as  well  at  thirty 
as  at  ten  or  fifteen  rods.  The  question  of 
tbe  distance,  at  which  the  witness  stood. 
Is  not  a  material  inquiry  in  the  case;  at 
the  most  it  is  a  mere  expression  of  opinion." 

George  v.  State,  16  Neb.  318,  20  N.  W.  311, 
is  a  cnse  wherein  the  defendant  was  charged 
with  having  committed  the  offense  of  rob- 
bery upon  the  person  of  one  Louis  Brown  on 
November  19,  1883.  Upon  his  cross-exami- 
nation the  defendant  was  asked,  in  substance, 
if  he  had  not  said  to  one  Mamy  In  tbe  Tlv- 
oli  garden  last  August,  in  the  hearing  of 
one  Frankie  Driscoll:  "This  feller  has  got 
money,  come  and  get  Into  the  hack,  and  I 
will  drive  you  out,  and  we  will  have  a 
chance  to  get  It,  or  fix  him,  or  anythiog  of 
that  sort?"  The  defendant  answered  "No, 
sir."  After  tlie  defense  rested,  the  state 
called  Frankie  Driscoll,  and  proved  by  her 


tbat  tbe  defendant  had  used  tbe  language 
attributed  to  him.  The  case  was  reversed 
on  the  ground  the  defendant  was  being  tried 
for  tbe  commission  of  an  alleged  offense 
which  occurred  November  19,  1883,  and 
was  interrogated  and  contradicted  concern- 
ing a  statement  purporting  to  have  been 
made  by  him  In  August  of  the  same  year,  tbe 
court  properly  holding  that  testimony  In 
regard  to  the  August  Incident  was  collateral 
matter. 

Myers  v.  State,  51  Neb.  517,  71  N.  W.  33, 
is  a  case  where  the  defendant  was  charged 
with  the  offense  of  statutory  assault.  One 
Phena  Thams,  a  witness  for  the  defense,  on 
her  cross-examination  was  interrogated  with 
reference  to  five  or  six  alleged  occasions  of 
Immodest  conduct  on  her  part  with  one 
Thompson,  a  negro.  This  question,  as  tbe 
last  of  the  series,  was  then  put  to  her:  "I 
will  ask  yon  if  Frank  Cross  did  not  over- 
take you  or  find  you,  and  one  Charles  Bum- 
ham  on  tbe  public  highway  right  north  of 
Utica,  embracing  each  other?"  The  ques- 
tions were  all  objected  to,  but  the  witness 
being  required  to  answer  denied  each  of  tbe 
charges.  The  state  in  rebuttal  called  a  wit- 
ness and  proved  by  him  the  snbstance  of  the 
charge  conveyed  In  tbe  last  question,  and  this 
court,  speaking  by  Irvine,  C,  held  that  the 
Inquiry  was  concerning  collateral  matter,  and 
therefore  erroneous. 

Gulf  Ry.  Co.  V.  Matthews,  100  Tex.  63,  93 
S.  W.  1068:  "In  an  action  against  a  railroad 
company  for  negligently  causing  the  death 
of  a  person  walking  on  Its  tracks,  a  witness 
for  plaintiff  testified  that  deceased,  or  a  per- 
son of  the  same  name  and  answering  hia 
description,  had  registered  at  the  hotel  where 
witness  was  clerk  tbe  night  before  the  acci- 
dent, and  had  left  there  tbe  following  morn- 
lug,  going  in  the  direction  of  the  place  where 
deceased  was  killed.  On  cross-examination, 
the  witness  testified  that  he  bad  told  but  one 
person  of  these  facts  prior  to  being  examined 
as  a  witness.  Held  that,  to  affect  his  credi- 
bility, it  was  competent  to  ask  him  on  cross- 
examination  if  he  had  not  read  newspaper 
reports  and  heard  rumors  to  the  effect  tbat 
deceased  had  been  killed,  and  tbat  It  waa 
suspected  tbat  be  had  been  foully  dealt  with, 
and  also  to  introduce  evidence  that  the  per- 
son whom  the  witness  claimed  to  have  told 
about  his  knowledge  of  the  whereabouts  of 
deceased,  was  at  the  time  the  witness  made 
tbe  statements,  reported  to  be  dead." 

Evansich  v.  G.  C.  &  S.  P.  R.  R.  Co.,  61 
Tex.  24:  "While  the  rule  that  only  such  evi- 
dence as  is  relevant  to  the  matter'in  Issue 
is  admissible  applies  to  the  cross-examina- 
tion as  well  as  the  examination  in  chief  of  a 
witness.  It  Is  not  applied  with  tbe  same 
strictness  to  a  cross-examination."  "Any 
fact  which  bears  on  the  credit  of  a  witness  is 
a  relevant  fact;  and  this,  whether  it  goes  to 
his  lndi8]x>sitton  to  tell  the  truth,  bis  want 
of  opportunity  to  know  tbe  truth,  his  bias 


Digitized  by  VjOOQ  l€ 


NdlL) 


BOCHE  T.  STATE. 


75 


interest  want  of  memOTy,  or  other  like  fact." 
State  ▼.  McKlnney.  31  Kan.  670,  8  Pac.  836, 
is  a  case  wherein  the  court  speaking  by 
Brewer,  J.,  says:  "Where,  on  the  trial  of  a 
person  charged  with  murder,  more  than  a 
year  after  the  homicide  a  witness  for  the  de- 
fendant had  testifled  to  certain  material 
facts,  •  •  •  held,  that  the  state  might  on 
cross.ezamlnatlon  ask  the  witness  whom  he 
told.  If  any  one,  of  these  facts;  and,  upon 
-certain  persons  being  named,  might  also.  In 
the  discretion  of  the  court,  prove  by  such 
persons  that  nothing  of  the  kind  was  ever 
told  them." 

From  the  reasoning  in  the  foregoing  deci- 
sions, as  applied  to  the  facts  In  the  present 
case,  we  are  of  opinion  that  the  matter  in 
qnestlon  was  not  collateral  to  the  Inquiry. 
And  it  seems  clear  to  us  that  the  facts  In 
the  present  case  are  distinguishable  from 
those  In  Smith  v.  State,  George  v.  State,  and 
Myers  t.  State,  supra.  And  they  are  also 
distinguishable  from  the  facts  In  Frederick 
V.  BalJnrd,  16  Neb.  559,  20  N.  W.  870,  Car- 
ter V.  State.  36  Neb.  481,  54  N.  W.  853,  and 
Johnston  v.  Spencer,  51  Neb.  198.  70  N.  W.  982. 
The  Instructions  given  by  the  court  are 
vigorously  assailed  and  the  refusal  to  give 
Instructions  submitted  by  the  defendant  Is 
assigned  as  error.  The  motion  for  new  trial 
first  filed  did  not  specifically  complain  of 
those  rulings  of  the  court,  but  an  amendment 
to  the  motion  was  filed  by  leave  of  court. 
Defendant's  counsel  made  a  showing  that 
they  were  unavoidably  prevented  from  filing 
the  amendment  within  three  days,  and  it 
seems  to  have  satisfied  the  district  court.  We 
will  therefore  treat  the  amendment  as  If  It 
bad  been  filed  In  time. 

Complaint  Is  made  with  reference  to  the 
court's  Instructions  on  the  subject  of  man- 
slaughter, which  Is  as  follows:  "If  you  fall 
to  find  the  defendant  guilty  of  murder  in  the 
second  degree,  and  do  find,  beyond  a  reason- 
able donbt  from  a  consideration  of  all  the 
evidence  in  this  case  and  the  instructions 
given  yon,  that  the  defendant  at  the  time 
and  place  charged  in  the  Information  did  un- 
lawfully kill  the  said  Frank  H.  Jarmer,  with- 
out malice,  upon  a  sudden  quarrel,  then  you 
will  find  the  defendant  guilty  of  manslaugh- 
ter, and  80  say  by  your  verdict."  The  stat- 
ute defines  manslaughter  as:  "If  any  per- 
son shall  unlawfully  kill  another  without 
malice,  either  upon  a  sudden  quarrel,  or  un- 
intentionally, while  the  slayer  is  In  the  com- 
mission of  some  unlawful  act,  every  such 
person  shall  be  deemed  guilty  of  manslaugh- 
ter, and,  upon  conviction  thereof,  shall  be 
imprisoned  In  the  penitentiary  not  more  than 
ten  years  nor  less  than  one  year."  As  we 
understand  counsel  for  defendant,  they  argue 
that,  unless  the  slayer  is  engaged  in  an  un- 
lawful act  independent  of  the  homicide,  he 
cannot  be  found  guilty  of  manslaughter.  The 
statute  as  we  view  it  dous  not  change  the 
common  law  which  defines  that  crime  as: 
-'The  unlawful  kUllug  of  another,  without 


malice,  upon  a  midden  heat,  or  Inadvertent- 
ly, but  In  the  commission  of  some  unlaw- 
ful act."  Black  Com.  191.  The  Ohio  Code 
on  this  subject  Is  the  same  as  that  of  Nebras- 
ka. Both  the  state  and  the  defense  rely  on 
Sutcllffe  V.  State,  18  Ohio,  469,  51  Am.  Dec. 
459,  as  sustaining  their  respective  positions. 
The  question  determined  in  that  case  was 
concerning  the  sufficiency  of  one  count  in  an 
information  which  purported  only  to  charge 
manslaughter,  and  does  not,  as  we  under- 
stand It,  support  the  defendant's  contention 
herein.  In  the  case  at  bar,  although  the 
charge  of  manslaughter  is  not  set  out  in  the 
Information  in  apt  words,  yet  it  is.  as  a  mat- 
ter of  law,  contained  in  the  charge  of  mur- 
der in  the  first  degree.  In  Weller  v.  State, 
19  Ohio  Cir.  Ct.  R.  166.  in  considering  the 
Ohio  statute,  it  was  held  that  to  convict  a 
defendant  of  manslaughter  it  must  be  proved 
either  that  the  killing  was  done  In  a  sudden 
quarrel,  or  while  the  slayer  was  in  the  com- 
mission of  some  unlawful  act,  and  such  we 
consider  to  be  the  law  of  Nebraska.  In  the 
first  class  of  cases  referred  to  in  the  statute 
the  homicide  must  have  been  intentional,  but 
in  sudden  passion  or  beat  of  blood  9aused  by 
a  reasonable  provocation  and  without  malice ; 
in  the  latter  clause  the  killing  must  have 
been  unintentional,  but  caused  while  the 
slayer  was  committing  some  act  prohibited 
by  law  and  other  than  rape,  arson,  rol>bery, 
or  burglary.  Section  6,  Cr.  Code;  section 
2i>3  et  seq.,  Clark  &  Marshall  on  l.avr  of 
Crimes  (2d  Ed.).  It  may  be  that  in  some 
cases  the  mere  use  of  the  word  "unlawful," 
in  defining  the  crime  of  manslaughter,  might 
leave  the  Jury  to  conjecture  what  was  or 
was  not  unlawful,  but  we  do  not  think  there 
was  or  could  have  been  any  misapprehension 
on  the  part  of  the  Jurors  in  the  present  case, 
because  they  were  fully  instructed  as  to  self- 
defense,  insanity,  and  intoxication,  and  a  con- 
sideration of  all  of  the  instructions  together 
would  advise  them  fully  concerning  the  al- 
leged unlawful  killing  of  Jarmer.  An  In- 
struction very  like  the  one  considered  in  the 
present  case  was  commended  in  Savary  v. 
State,  62  Neb,  16C,  178,  87  N.  W.  34;  Bi)han- 
an  V.  State,  15  Neb.  209,  215.  18  N.  W.  129. 

The  defendant  complains  of  the  instruc- 
tions upon  "reasonable  doubt"  The  question 
was  perhaps  more  elaborately  discussed  In 
the  Instructions  than  was  net-essary,  but  we 
fall  to  find  anything  upon  this  point  which 
could  work  to  the  prejudice  of  the  defend- 
ant, and  they  do  not  present  conflicting 
views.  If  the  question  had  already  been  suf- 
ficiently elaborated  the  instruction  asked  by 
the  defense  should  have  been  withheld.  The 
Jury  were  correctly  instructed  upon  this 
point 

Proof  of  specific  facts  was  attempted  to 
be  Introduced  by  the  defendant  to  show  that 
Grace  Cole,  who  is  shown  to  be  a  courtesan 
and  inmate  of  the  Ingham  resort  and  Lee 
Vroman,  to  whom  she  was  engaged  to  be 
married,  had  t>oUi  testified  falsely  in  a  dl- 


Digitized  by  LjOOQ  l€ 


76 


122  NORTHWESTERN  REPORTER. 


(SOk 


Torce  proceeding,  -wherein  the  Cole  woman 
was  a  party,  to  the  effect  that  she  was  pure 
and  chaste.  Ckjmplaint  Is  made  by  the  de- 
fendant that  he  was  not  i>ermitted  to  Intro- 
duce this  testimony.  He  also  complains  be- 
cause the  trial  court  sustained  an  objection 
to  the  following  question  propounded  to  the 
witness  Mackay  "tending  to  show  the  vicious 
character  and  habits  of  Jarmer;"  and  that 
the  deceased  was  "Irritable,  Quarrelsome,  and 
persistent":  "You  may  state  one  Instance, 
or  Instances,  of  assaults  or  affrays  In  which 
Jarmer  was  engaged  which  came  under  your 
observation  a  short  time,  say  within  a  year 
or  less,  before  the  alleged  shooting  in  this 
case."  It  Is  elementary  that  ordinarily,  and 
as  a  rule,  It  Is  not  permissible  In  a  proceed- 
ing that  has  for  its  end  the  Impeachment  of 
the  veracity  of  a  witness  or  the  Impeachment 
of  hlB  general  reputation  as  a  peaceable  and 
law-abiding  citizen  to  prove  specific  facts  or 
Instances. 

It  appears  to  ns  from  a  careful  examina- 
tion of  the  record  that  the  Jury  may  have 
conduded  from  all  the  evidence  that  Boche, 
Inflamed  with  Intoxicants,  was  piqued  and 
annoyed  because  his  companion  Interfered 
with  his  personal  liberty  in  bis  endeavor  to 
persuade  him  to  quietly  leave  the  scene  of 
their  midnight  revel,  and  slew  his  friend  in 
resentment  for  bis  interference.  The  Jury 
tempered  their  verdict  with  mercy,  and  in 
view  of  the  record  we  are  not  disposed  to 
disturb  it  The  defendant  has  assigned  238 
errors,  and  we  liave  examined  all  of  them 
with  care,  but  must  decline  to  discuss  them 
all  specifically,  as  It  would  extend  this  opin- 
ion to  an  unwarranted  length. 

We  find  no  reversible  error  In  the  record, 
and  the  Judgment  must  be,  and  it  hereby  is, 
affirmed. 

ROOT,  J.  (dissenting).  I  cannot  assent  to 
the  holding  In  this  case.  It  seems  to  me  that 
the  state  ought  not  to  have  been  permitted 
to  contradict  Mackay's  testimony  on  cross- 
examination  to  the  effect  that  he  had  repeat- 
ed to  certain  Individuals  the  statements  he 
claimed  Jarmer  had  made  to  blm  preceding 
the  tragedy.  The  cross-examination  was  up- 
on a  subject  collateral  to  the  Inquiry,  and 
the  state  was  bound  by  the  answers  given. 
The  principle  is  stated  in  Attorney  Qeneral 
V.  Hitchcock,  L.  Exch.  90,  98:  "That  the 
test  whether  the  matter  Is  collateral  or  not 
is  this :  If  the  answer  of  a  witness  is  a  mat- 
ter which  you  would  be  allowed  on  your  part 
to  prove  In  evidence,  *  •  •  if  It  have 
such  a  connection  with  the  issoe,  that  you 
win  be  allowed  to  give  it  in  evidence,  •  ♦  • 
then  it  Is  a  matter  on  which  you  may  contra- 
dict him."  Proof  that  Mackay  had,  or  had 
not,  repeated  out  of  court  those  statements 
would  In  no  manner  prove  or  tend  to  prove 
their  existence,  nor  to  establish  the  witness' 
temper  or  disposition  towards,  or  interest  in, 
Boche  or  the  prosecution.  The  rule  has  been 
recognized  and  adopted  in  this  court  In  Car- 


ter T.  State,  Se  Neb.  481,  64  N.  W.  853 ;  John- 
ston V.  Spencer,  51  Neb.  198,  70  N.  W.  982; 
Myers  v.  State,  81  Neb.  617,  71  N.  W.  33. 
Text-writers  and  courts  generally  hold  that. 
If  a  witness  is  interrogated  on  cross-examina- 
tion upon  a  subject  collateral  to  the  issue, 
counsel  will  not,  over  objection,  be  permitted 
to  prove  that  the  witness  had  not  answered 
truthfully  In  respect  to  said  collateral  sub- 
ject Rosenbaum  v.  State,  83  Ala.  354 ;  Coke- 
ly  V.  State,  4  Iowa,  477,  480;  Fogleman  v. 
State,  32  Ind.  145 ;  Welch  v.  State,  104  Ind. 
347,  3  N.  E.  850;  Ruber  v.  State,  126  Ind. 
185,  25  N.  B.  904 ;  State  v.  Benner,  64  Me. 
267,  287;  Davis  T.  State,  85  Miss.  416,  37 
South.  1018;  Stokes  v.  People,  63  N.  Y.  164^ 
176,  13  Am.  Rep.  492 ;  State  v.  Patterson,  24 
N.  C.  346,  38  Am.  Dec.  690 ;  State  v.  Roberts, 
81  N.  C.  605 ;  State.v.  Davidson,  9  S.  D.  564. 
70  N.  W.  879 ;  Oreenleaf  on  Evidence,  f  462, 
vol.  1,  Redfleid's  Edition;  Olllett  on  Indi- 
rect and  Collateral  Evidence,  {  90;  Starkle 
on  Evidence,  g  200;  Stephen,  Digest  of  the 
Law  of  Evidence  (Beers)  art  130,  p.  450; 
Underbill  on  Criminal  Evidence,  p.  297; 
Wharton's  Criminal  Evidence,  |  484  (8th  Ed.) 
This  rule  which  has  heretofore  been  recogniz- 
ed by  this  court  is  simple,  easy  to  under- 
stand, expedites  trial,  and  serves  the  ends 
of  Justice.  Jarmer's  Intention  to  rob  defend- 
ant and  his  preparations  to  that  end  were 
material  facts  for  the  defense,  and  any  rul- 
ing that  permitted  Mackay  to  be  Improperly 
contradicted  by  incompetent  evidence  was 
prejudicial  error. 

2.  The  thirteenth  Instruction  given  by  the 
court  on  its  own  motion  is  to  all  Intents 
Identical  with  the  one  criticised  by  this  court 
h)  1905  in  LilUe  v.  State,  72  Neb.  228,  100  N. 
W.  316,  and  with  those  condemned  thereafter 
in  Mays  v.  State,  72  Neb.  723,  101  N.  W.  979. 
Junod  V.  State,  73  Neb.  208,  102  N.  W.  462. 
119  Am.  St.  Rep.  890,  Keeler  v.  State.  73 
Neb.  441,  103  N.  W.  64,  and  Clements  v. 
State,  80  Neb.  818,  114  N.  W.  271.  Although 
none  of  those  cases  were  reversed,  it  was 
held  that  the  instruction  criticised  should 
not  have  been  given.  In  the  Instant  case  the 
trial  court  on  its  own  motion  also  gave  two 
other  lengthy  Instructions  upon  the  same  sub- 
ject snd  therein,  as  the  writer  understands 
them,  cautioned  the  Jurors  not  to  give  any- 
considerable  weight  In  their  deliberations  to 
the  principle  of  a  reasonable  doubt  Those 
Instructions  are  In  addition  to  the  one  givea 
at  defendant's  request  to  which  reference  Is 
made  in  the  opinion  of  the  court  Defend- 
ant's testimony  Is  In  many  particulars  in 
sharp  confilct  with  that  of  the  witnesses  pro- 
duced by  the  state,  and  It  was  material  for 
him  that  the  Jurors  should  have  been  per- 
mitted to  give  the  principle  of  a  reasonable 
doubt  such  weight  as  it  was  entitled  to  In 
the  exercise  of  their  unhampered  Judgment 
Especially  Is  this  true  when  we  consider  that 
the  witnesses  who  were  present  when  Jarmer 
was  shot  and  who  testified  for  the  state, 
are  a  notorious  prostitute  and  an  Impecuni- 


Digitized  by  VjOOQ  l€ 


MldL) 


LEMON  T.  HACELEM. 


TJ 


owa  procurer  who  had  theretofore  subalsted 
In  part  upon  the  earnings  of  lewd  women, 
but  shortly  after  the  tragedy  had  negotiated 
for  the  purchase  of  a  hack  line  In  Norfolk, 
and  offered  to  make  a  considerable  cash  pay- 
ment down  to  bind  the  bargain. 

The  trial  court  was  In  most  respects  emi- 
nently fair  and  exceedingly  patient,  but  nev- 
ertheless, through  Inadvertence  evidently,  he 
did  not.  It  seems  to  the  writer,  accord  de- 
fendant a  fair  trial  In  the  particulars  above 
referred  to,  and  therefore  a  new  trial  should 
be  granted. 


LEMON  V.  MACELEM. 
(Supreme  Court  of  Michigan.     July  6,  1900.) 
Bkokebs  (S  65*)  —  Compensatiobt  —  Miscon- 
duct   or   BBOKKB— RKPBESKNTIirQ    Advebse 
iKTNOSI. 

A  broker  does  not  forfeit  his  right  to  com- 
missions on  a  sale  of  real  estate  that  ho  was 
instmmental  in  bringing  about  because  he  had 
other  real  estate  for  sale  belonging  to  other  per- 
sons which  he  tried  to  sell  to  the  same  pur- 
chaser. 

fEd.  Note.— For  other  cases,  see  Broken, 
Dec  Dig.  i  65.»] 

Error  to  Circuit  Court,  Wayne  County; 
Peter  F.  Dodds,  Judge. 

Action  by  Hallett  W.  Lemon  against  Wil- 
liam E.  Macklem.  Judgment  for,  defendant, 
and  plaintiff  brings  error.    Reversed. 

Argued  before  GRANT,  MONTGO.MERT, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Thomas  Klssane  and  Lehman,  Rlggs  St 
Lehman,  for  appellant  Merrlam,  Terkes  & 
Simons,  for  appellee. 

OSTRANDER,  J.  This  action  Is  brought 
to  recover  a  commission  which  the  plaintiff 
claims  he  earned  In  conducting  certain  nego- 
tiations for  a  sale  of  real  estate.  His  de- 
mand Is  stated  In  his  bill  of  particulars  as 
follows:  "For  commission  for  services  ren- 
dered In  sale  of  real  estate  known  as  lot  12 
and  easterly  20  feet  In  width  of  lot  11,  sub- 
division of  Cass  Farm,  being  70  feet  front- 
ing on  Fort  Street  West,  and  located  at  the 
northwest  comer  of  Third  Street  and  Fort 
Street  West,  to  one  Dlnan,  for  the  sum  of 
$21,000,  by  virtue  of  a  certain  verbal  con- 
tract or  agreement  entered  into  on  or  about 
the  4th  day  of  April,  1907,  whereby  the  de- 
fendant agreed  to  pay  to  the  plaintiff  a  com- 
mission of  three  (3%)  per  cent,  on  the  pur- 
chase price,  $630.00."  At  the  trial  no  tes- 
timony was  Introduced  by  defendant,  upon 
whose  motion  the  trial  Judge  directed  a  ver- 
dict and  Judgment  for  the  defendant.  The 
court  gave  no  reason  for  directing  a  verdict. 
The  reason,  and  the  only  reason,  asserted  by 
counsel  in  making  the  motion,  was  that  It 
appeared  from  the  testimony  that  plaintiff 
acted  "without  the  defendant's  knowledge 
In  a  capacity  which  Is  adverse  and  antago- 


nistic to  the  defendant's  intereit  and  In  bad 

faith." 

The  testimony  on  the  part  of  plaintiff  tend- 
ed to  prove  that  he  was  a  real  estate  broker ; 
that  the  defendant  Is  also  a  real  estate  bro- 
ker; that  In  March,  1907,  plaintiff  told  de- 
fendant he  was  trying  to  sell  some  property 
to  people  who  wanted  downtown  property — 
looking  up  downtown  property  for  them. 
The  defendant  replied  that  he  had  several 
pieces  of  property,  of  which  he  gave  the 
plaintiff  the  descriptions,  who  made  a  mem- 
orandum of  them.  One  parcel  was  250  feet 
on  the  corner  of  Fort  and  Third  streets,  and 
Included  the  land  described  In  the  bill  of  par- 
ticulars, the  price  of  which  defendant  said 
was  $300  a  foot  Plaintiff  said  he  would  see 
what  he  could  do  and  would  let  defendant 
know.  Plaintiff  gave  the  Information  he  had 
received  from  defendant  to  a  man  named 
Van  Syckle,  who  also  did  some  real  estate 
business,  and  later  told  defendant  that  Van 
Syckle  thought  he  would  be  able  to  sell  the 
piece  of  property  on  Fort  and  Third  streets, 
saying  also  to  defendant,  "I  will  tell  you  at 
the  start  who  his  party  Is,"  and  that  It  was 
Dlnan  Bros.  Defendant  said:  "You  cannot 
do  anything  with  Dlnan  Bros.  I  offered  them 
that  property  some  time  ago,  and  they  won't 
pay  enough  for  It;  but,  If  Mr.  Van  Syckle 
thinks  he  can  do  anything,  yon  can  go  ahead 
•  •  •  and  I  will  treat  you  right"  Con- 
versation then  passed  to  the  subject  of  com- 
missions, and  defendant  said  that  he  thought 
there  would  be  3  per  cent  all  right.  Plain- 
tiff reported  this  conversation  to  Van  Syckle. 
Very  soon  thereafter  plaintiff  went  to  de- 
fendant, saying  he  wanted  a  more  definite 
understanding  about  the  commission,  stat- 
ing that  the  regular  commission  for  selling 
vacant  property  was  6  per  cent,  and  the 
talk  ended  with  an  agreement  to  pay  a  com- 
mission of  8  per  cent.  Van  Syckle  took  the 
matter  up  with  Dlnan  Bros.,  who  offered  to 
buy  50  feet  on  the  corner  of  the  property  at 
$300  a  foot  This  was  reported  to  defend- 
ant, who  said  that  was  ridiculous;  If  they 
wanted  50  feet,  they  must  pay  $300  a  foot 

Nothing  came  of  this;  but  defendant 
agreed  to  see  Mr.  Avery,  the  owner  of  the 
property,  and  learn  whether  he  would  sell 
less  than  the  whole  piece,  and  at  what  fig- 
ures, and  he  later  reported  that  he  had  seen 
Mr.  Avery,  produced  a  memorandum,  stated 
that  he  had  called  upon  John  Dlnan,  one  of 
Dlnan  Bros.,  and  that  the  best  he  could  do 
was  to  sell  50  feet  for  $400  a  foot  70  feet 
for  $350  a  foot,  150  feet  for  $300  a  foot,  or 
the  whole  250  feet  at  $250  a  foot  He  told 
plaintiff  to  take  a  memorandum  of  these 
prices,  and  asked  that  he  and  Van  Syckle  go 
ahead  and  get  Dinan  Bros,  to  take  all  they 
could.  Van  Syckle  did  not  succeed  In  get- 
ting the  Dlnan  Bros,  to  change  their  offer, 
and  on  reporting  this  to  defendant  he  agreed 


•For  otlier  eases  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  19u7  to  date,  &  Ueporter  Indexes 


Digitized  by  LjOOQIC 


78 


122  NORTHWESTERN  REPORTEB. 


(Micb. 


to  again  see  Mr.  Avery.  Plaintiff  testified: 
"After  that  1  took  Mr.  Van  Syckle  over  to 
meet  Mr.  Macklem.  Mr.  Macklem  had  never 
met  Mr.  Van  Syckle,  and  I  Introduced  him, 
and  we  had  a  nice  friendly  talk,  but  could 
not  bind  him  down  to  anything  about .  com- 
mission. That  was  before  the  deal  was  clos- 
ed, as  far  as  I  know.  He  kept  saying  all 
the  time:  'Boys,  I  will  treat  you  right  I 
will  treat  you  right.  I  won't  do  anything 
until  you  are  satis'fled.'  He  would  not  say  be 
would  pay  3  per  cent,  or  5  per  cent.,  or  1  per 
cent.  I  thought  it  was  no  more  than  right 
we  should  know,  because  I  know  they  were 
figuring  together,  of  coarse.  He  said  he 
would  see  Mr.  Avery  as  soon  as  he  came 
back,  and  be  would  do  the  best  be  could. 
That  is  about  all  there  was  of  it"  Later 
on  plaintiff  learned  that  defendant  bad  sold 
Dluan  Bros.  TO  feet  of  the  property  at  $300 
a  foot.  He  called  upon  defendant,  who  said 
he  had  closed  the  deal,  when  plaintiff  ask- 
ed about  the  commission.  Defendant  replied 
that  John  (Dlnan)  did  not  have  enough  mon- 
ey, Jim  (Dlnan)  bongbt  it,  and  the  check 
came  from  Matt  (Dlnan) ;  that  there  was 
nothing  in  it ;  that  the  man  plaintiff  and  Van 
Syckle  were  talking  to  (John  Dlnan)  did  not 
buy  it;  that  three  or  four  other  fellows 
wanted  commissions,  and  he  was  not  going 
to  pay  anybody  a  commission  until  he  saw 
John.  The  commission  was  never  paid.  Ui>- 
on  cross-examination  of  the  plaintiff  and  of 
Mr.  Van  Syckle  it  was  made  to  appear  that 
while  Van  Syckle  was  negotiating  with  Dl- 
nan Bros,  be  also  offered  them  another  piece 
of  property  owned  by  Richmond  &  Backus, 
about  two  blocks  distant  from  the  property 
in  question  on  the  same  street  This  proper- 
ty plaintiff  authorized  Van  Syckle  to  try  to 
sell  to  DInnn  Bros.,  and  be  took  them  to  see 
It  and  made  some  effort  to  sell  it  to  tbem. 
Defendant  had  no  connection  with  this  other 
proi)erty. 

A  reasonable  inference  from  all  of  the  tes- 
timony Is  that  defendant,  If  he  had  not  aban- 
doned the  Idea  of  selling  the  property  to 
Dlnan  Bros.,  at  least  thought  It  unlikely  that 
any  such  sale  could  be  made.  The  reason- 
able conclusions  to  be  drawn  from  the  tes- 
timony of  the  plaintiff  are  that  plaintiff  was 
not  employed  as  agent  of  the  owner  of  the 
property,  or  as  the  agent  of  defendant,  to 
sell  the  particular  property  for  as  much  as 
be  could  get,  but  that  he  did  undertake  to 
negotiate  a  sale  of  it,  if  he  could,  for  a  fixed 
price.  It  is  a  common  practice,  and  we 
know  no  legal  objection  to  It,  for  real  es- 
tate brokers  to  list  for  sale  many  different 
pieces  of  property  which  they  are  authoriz- 
ed to  sell  at  prices  determined  by  the  owners 
of  the  property.  It  Is  not  to  be  expected 
that,  if  an  intending  purchaser  Is  dissatisfied 
with  one  piece  of  property  which  he  has  for 
sale,  the  broker  will  decline  to  show  him 
other  pieces  of  property.    To  earn  his  com- 


mission, a'  broker  must,  of  coarse,  make  the 
sale  or  be  Instrumental  In  making  It;  but 
it  would  be  a  hard  rule  which  would  deprive 
a  broker  of  commission  on  account  of  a  sale 
made  because  he  had  exhibited  to  the  Intend- 
ing purchaser  several  different  pieces  of  prop- 
erty belonging  to  different  clients,  endeav- 
oring to  sell  that  particular  piece  which  he 
found  would  suit  the  buyer  or  that  piece 
which  the  buyer  was  able  to  buy. 

Assuming,  as  we  must,  that  the  learned 
trial  Judge  proceeded  upon  the  theory  that 
the  agency  of  plaintiff  was  of  such  a  char- 
acter that  a  rule  of  public  policy  forfeits  bis 
right  to  recover  his  commission,  and  no  at- 
tempt being  made  in  this  court  to  sustain  the 
Judgment  upon  any  ground  other  than  that 
the  plaintiff  acted  in  bad  faith,  we  are  oblig- 
ed to  say  that  the  court  was  In  error,  and 
to  reverse  the  Judgment  and  order  a  new 
trial. 


SCAHILL  ▼.   JETNA   IXDEMNITT   CO. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

1.  Intoxicating  Liquors  (J  88*)— Civil  Dam- 
ages—Actions AOAINST  SUBETY  ON  LiQUOB 

Bond. 

Uoder  Comp.  Lews  1S07,  {  5398,  making  the 
principal  and  surety  in  a  liquor  dealer's  ~Soiiii 
linlile  severally  and  jointly  tor  unlawful  sales 
of  liquor,  dn  action  for  damages  for  ao  unlaw- 
ful sale  of  liquor  lies  against  the  surety  alone. 

[EJd.  Note.— For  other  cases,  see  Intoiionting 
Liquors,  Cent  Dig.  S  91;    Dec.  Dig.  $  88.*] 

2.  intoxicatinq  liquoss  (|  88*)— deaters* 
Bonds — Actions— Instructions. 

Where,  in  an  action  against  the  surety  on 
a  liquor  dealer's  bond,  the  evidence  showed  that 
the  bond  became  effective  and  continued  until 
the  disBolution  of  the  firm  of  liquor  dealers  on 
June  24th,  when  a  partner  continued  tiie  bu.<ii- 
ness  alone,  that  between  May  Ist  and  June  24th 
plaintiff's  minor  son  was  almost  daily  in  tlie 
saloon  and  drank  intoxicating  liquors  to  excess, 
and  that  on  November  6th  following,  while  in- 
toxicated, he  committed  larceny  in  the  saloon, 
for  which  be  was  convicted,  an  instruction  that 
the  surety  was  liable  for  the  result  of  saloa 
between  May  1st  and  June  24th,  but  that  plain- 
tiff could  not  charge  the  surety  tor  sales  of  in- 
toxicants after  June  24th,  unless  her  son  sub- 
sequently drank  liquor  as  the  result  of  his  hab- 
its prior  to  June  24th,  etc.,  sufficiently  protect- 
ed the  rights  of  the  surety. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  §  95;    Dec.  Dig.  |  88.*] 

3.  Intoxicating  Liquobs  ({  813*)-Civii, 
Damages— Unlawful  Sales— Exbmplabt 
Damages. 

Under  Comp,  Ijaws  1897,  $  5.398,  providing 
that  every  person  seHing  intoxicating  liqpor  to 
any  minor  shall  be  liable  for  both  actual  and 
exemplary  damages,  exemplary  damages  may  be 
awarded  for  the  sale  ot  liquor  to  a  minor, 
though  the  liquor  dealer  did  not  know  of  the 
minority. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  !  456 ;   Dec.  Dig.  (  813.*J 

Error  to  Circuit  Court,  St  Clair  County; 

Eugene  F.  Law,  Judge. 

Action  by  Mary  Scahill  against  the  ^tna 
Indemnity    Company.     There    was    a   Judg- 


•For  other  cues  sea  sama  topic  and  aectlon  NUMBER  la  Dec  A  Am.  Diss.  1907  to  date,  A  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Mich^ 


60AHILL  ▼.  -STNA  INDEMNITY  OO. 


79 


ment  for  plaintiff,  and  defendant  brings  er^ 
ror.    Affirmed. 

Ar^ed  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  MOORE,  and  McALVAY, 
13. 

John  B.  Mcllwaln,  for  appellant  Frank 
R.  Schell,  for  appellee. 

MONTGOMERY,  J.  TbiB  Is  an  action 
brooght  under  tbe  civil  damage  act  to  re- 
cover damages  for  tbe  sale  of  liquor  to  tbe 
plalntifTs  minor  son.  Tbe  defendant  was 
nirety  upon  tbe  bond  of  Troy  &  Tokarskl, 
whicb  bond  became  effective  May  1,  1906. 
The  firm  continued  in  business  until  tbe  24tb 
of  June,  1906,  wben  Tokarskl  ceased  to  be 
connected  wltb  the  business,  and  It  was  con- 
tinued by  John  Troy  alone.  Three  conten- 
tions are  made :  First,  that  tbe  court  erred 
In  holding  that  this  action  could  be  main- 
tained against  tbe  surety  company  alone; 
lecond,  that  the  court  erred  In  allowing  the 
jnrjr  to  find  damages  against  the  defendant 
resulting  from  tbe  minor's  drinking,  lar- 
ceny, and  arrest  after  defendant's  liability 
on  the  bond  had  terminated  by  the  dissolu- 
tion of  tbe  partnership;  third,  that  the 
court  erred  In  allowing  tbe  jury  to  find  ex- 
emplary damages. 

1.  Tbe  statute  (Comp.  Laws,  S  6398)  reads 
In  part  as  follows:  •■  •  •  *  And  the 
principal  and  sureties  to  the  bond  hereinbe- 
fore mentioned  shall  be  liable  severally  and 
Jointly  with  the  person  or  persons  so  selling, 
giving,  or  furnishing  any  spirituous,  Intoxi- 
cating, or  malt  liquors,  as  aforesaid,  and  In 
an  action  provided  for  In  this  section  tbe 
plaintiff  shall  have  a  right  to  recover  actu- 
al and  exemplary  damages."  If  the  surety 
is,  as  the  statute  provides,  severally  liable, 
it  Is  difficult  to  conceive  why  an  action  may 
not  be  brought  against  him  alone.  Language 
could  not  well  be  plainer  than  that  employ- 
ed in  tbe  statute  Itself,  and  we  need  not  en- 
large upon  it. 

2.  As  to  tbe  second  contention  of  the  de- 
fendant tbe  evidence  disclosed  that  for  tbe 
period  wben  Troy  &  Tokarskl  were  still  run- 
ning tbe  business,  from  May  1st  to  June 
24tb,  tbe  plaintiff's  son,  who  was  a  minor 
about  18  years  of  age,  was  almost  dally 
hi  their  place  of  business  drinking  Intoxi- 
cating liquors,  and,  as  he  himself  testified, 
was  intoxicated  in  that  place  about  an  aver- 
(ge  of  twice  a  week,  and  that  after  he 
was  intoxicated  they  would  continue  to 
famish  him  liquor.  This  continued  all  sum- 
mer, and  there  was  evidence  tending  to 
■bow  that  on  the  6tb  of  November,  while 
tbe  son  was  intoxicated,  he  committed  a  lar- 
ceny in  this  same  saloon,  and  was  arrested 
therefor  and  convicted.  The  circuit  judge 
charged  tbe  jury  that,  as  the  evidence  show- 
ed that  the  partnership  of  Troy  ft  Tokarskl 
was  dissolved  on  the  24th  of  June,  tbe  de- 
fendant company  would  not  be  liable  for  Il- 
legal sales  of  liquor  to  plaintUTs  minor  son 


after  June  24,  1906,  bat  that  the  defendant 
would  be  liable  for  the  result  of  sales  be- 
tween May  1,  1906,  and  June  24,  1906,  if 
any  damage  resulted  from  such  sales;  and 
It  was  competent  for  the  plaintiff  to  show 
that  her  son  drank  intoxicants  after  June 
24,  1006,  but  that  she  could  not  charge  tbe 
surety  company  with  responsibility  therefor 
unless  tbe  jury  should  find  that  he  subse- 
quently drank  liquor  as  the  result  of  his 
habits  formed  previous  to  June  24,  1906. 
The  court  added:  "In  other  words,  the  de- 
fendant, .9:tna  Indemnity  Company,  is  not 
at  all  responsible  for  sales  to  plaintiff's 
minor  son,  unless  such  sales  were  made  by 
Troy  &  Tokarskl  between  May  1  and  June 
24,  1906,  and  for  the  bad  habits  and  charac- 
ter of  the  minor  son  that  can  be  directly  trac- 
ed to  such  sales,  If  any  bad  habits  and  char- 
acter can  BO  be  traced  by  you."  In  reference 
to  the  arrest  of  the  minor  son,  the  court  said: 
"Now,  before  you  can  consider  this  matter 
at  all  as  bearing  upon  plaintiff's  damages, 
you  must  first  find  that  the  liquor  sold  or 
furnished  to  tbe  minor  son  by  Troy  ft  To- 
karskl, or  either  of  them,  or  their  bartend- 
ers, between  May  1  and  June  24,  1006,  has 
some  part  In  causing  the  said  minor  to  com- 
mit the  crime,  through  causing  him  to  form 
bad  habits  and  a  bad  character."  We  think 
these  Instructions  fully  guarded  the  rights 
of  the  defendant  It  was  tbe  theory  of  the 
plaintiff  that  during  this  period  of  time, 
namely  from  May  1st  to  June  24th,  the  acts 
of  the  defendants  Troy  &  Tokarskl  bad  con- 
tributed at  least  to  form  the  habits  wblcb 
resulted  in  all  the  damages  that  followed. 
Had  tbe  subsequent  sales  been  by  an  en- 
tirely distinct  party,  as  in  legal  effect  they 
were,  tbe  contribution  to  the  downfall  of 
tbe  young  man  by  tbe  firm  of  Troy  ft  Tokar- 
skl would  have  rendered  the  Indemnity  com- 
pany liable.  See  Merrlnane  v.  Miller  (Mlch.> 
118  N.  W.  11,  and  cases  cited. 

3.  As  to  the  question  of  exemplary  dam- 
ages: The  court  charged  the  jury,  carefully 
defining  the  term  "exemplary  damages,"  and 
tbe  only  contention  made  against  his  in- 
struction Is  that  exemplary  damages  should 
not  be  awarded  at  all,  for  tbe  reason  that 
there  was  a  want  of  evidence  that  Troy  ft 
Tokarskl  knew  that  the  plaintiff's  son  was 
a  minor.  The  young  man  was  a  witness  up- 
on the  stand.  He  was  in  fact  about  18  years 
of  age  at  the  time  this  liquor  was  served 
him,  and  it  Is  hardly  conceivable  that  there 
would  not  have  been  something  In  bis  ap- 
pearance to  have  indicated  his  minority. 
But  independent  of  this,  the  statute  re- 
lating to  minors  fixes  no  such  condition. 
Again  referring  to  section  5398,  we  find  it 
provided:  "Every  person  who  shall  by  him- 
self, or  by  any  clerk,  servant  agent  or  em- 
ploy6,  sell,  give  or  furnish  •  •  •  any 
Intoxicating,  spirituous,  malt  brewed  or 
fermented  liquors  •  ♦  •  to  any  minor 
*  *  *  shall  in  addition  to  all  other  pen- 
alties provided  therefor  by  this  act  be  11- 


Digitized  by  VjOOQ  l€ 


80 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


able  for  both  actual  and  exemplar?  damages 
therefor,  to  the  father,  mother,  guardian  or 
master,  or  any  person  standing  In  place  of 
a  parent  to  Buch  minor.  In  such  sum,  not 
less  than  fifty  dollars  In  each  case,  as  the 
court  or  Jury  shall  determine."  This  stat- 
ute was  construed  and  its  validity  affirmed 
In  Cramer  t.  Danlelson,  99  Mich.  631,  58  N. 
W.  476.  See,  also.  Sterling  t.  Callahan,  94 
Mich.  5.36,  54  N.  W.  495. 

No  error  appears  in  the  record.    Judgment 
will  be  affirmed. 


PEOPLE  ▼.  CONNELIiT. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

1.  Witnesses  (|  350*)— CBOSS-ExAUiNATion— 
Cearacteb  of  Accused. 

Where,  in  a  prosecution  for  killing  accus- 
ed's husband,  accused  did  not  raise  the  issue 
of  her  character  for  chastity  before  her  mar- 
riage, the  state  could  not  raise  it  by  showing 
on  accused's  cross-examination  that  she  was  a 
prostitute  before  her  marriage. 

[Ed.  Note.— For  other  cases,  see  Witnesses, 
Cent.  Dig.  {§  1140-1149 ;   Dec.  Dig.  |  350.*] 

2.  Homicide  (J  838*)  —  Appeal  —  Harmless 
Ebbor— Admission  or  Evidence— Pbejudi- 
G^L  ErFEcrr. 

In  a  prosecution  for  killing  accused's  hus- 
band, where  accused  claimed  that  her  husband 
compelled  her  to  support- him  by  prostitution, 
and  that  the  quarrel  out  of  which  the  killing 
arose  was  caused  by  her  refusal  to  receive  a 
man,  error  in  admitting  evidence  that  accused 
was  a  common  prostitute  before  her  marriage 
wag  prejudicial  to  her. 

[Ed.  Note.— For  other  cases,  see  Homicide, 
Dec.  Dig.  i  338.*] 

Hooker,  Grant,  and  Montgomery,  JJ.,  dissent- 
ing. 

Error  to  Superior  Court  of  Grand  Rapids ; 
WUllam  J.  Stuart,  Judge. 

Clara  Connelly  was  convicted  of  man- 
slaughter, and  she  appeals.  Reversed,  and 
new  trial  ordered. 

Argued  before  BLAIR,  C.  J,  and  OS- 
TRANDER,  MOORE,  HOOKER,  GRANT, 
McALVAY,  and  MONTGOMERY.  JJ. 

John  E.  Bird,  Atty.  Gen.,  John  W.  Powers, 
Pros.  Atty.,  and  Colin  P.  Campbell,  Asst.  Pros. 
Atty.,  for  the  People.  A.  A.  &  H.  A.  Ellis 
and  Bert  Hayes,  for  defendant 

McALVAY,  J.  From  a  conviction  of  man- 
slaughter respondent  seeks  a  reversal  upon 
several  alleged  errors,  but  one  of  which  is 
considered  necessary  to  discuss.  The  alter- 
cation during  which  the  shooting  which  re- 
sulted in  death  occurred  commenced  by  an 
unjustifiable  assault  by  deceased  upon  re- 
spondent, bis  wife.  She  claimed  that  he 
knocked  her  down  twice,  and  that  she  crawl- 
ed on  her  hands  and  knees  to  her  bed,  where 
she  got  a  revolver,  and,  when  he  violently 
assaulted  her  again,  she  was  put  in  fear  of 
great  bodily  injury,  and  shot  in  self-defense. 
There  was  evidence  besides   her  testimony 


which  raised  an  Issue  of  fact  as  to  wbetber 
or  not  the  shooting  was  Justifiable.  In  ttae 
submission  of  this  question  to  the  Jury,  an 
examination  of  the  record  satisfies  us  that 
no  error  was  committed. 

The  details  of  the  lives  these  people  bad 
led  since  a  short  time  after  their  marriage 
are  of  such  a  character  that  In  this  opinion 
they  are  omitted  as  much  as  possible.    Her 
testimony  shows  that  at  her  husband's  solic- 
itation she  received  men  who  were  procured 
by  him,  and  that  both  were  supported  from 
the  proceeds   of  such  traffic.     She  claims 
that,  having  been  seriously  sick  for  several 
days  and  stlU  In  that  condition,  her  refusal 
to  receive  a  man  procured  by  her  husband 
was  the  real  cause  of  their  last  quarrel.    On 
rebuttal  by  the  prosecution,  the  court,  over 
the  objection  of  respondent's  counsel,    ad- 
mitted the   testimony  of  several   witnesses 
tending  to  prove  that  respondent  was  a  com- 
mon prostitute  before  her  marriage  to  Con- 
nelly.   It  was  admitted  by  the  court,  as  is 
claimed  on  behalf  of  the  people,  to  meet 
respondent's  claim  that  prior  to  such  mar- 
riage she  had  led  a  virtuous  life.    The  rec- 
ord does  not  show  that  on  direct  examination 
she  made  any  such  claim.    On  cross-exam- 
ination, in  answer  to  questions  propounded 
by  the  prosecutor,  and  which  were  objected 
to  by  her  counsel,  she  did  so  testify.    This 
testimony,  which  was  brought  out  by  the 
prosecution,  is  made  the  basis  for  the  Intro- 
duction of  the  testimony  of  these  witnesses 
to  contradict  her.     The  testimony  objected 
to.  If  not  admissible  upon  the  ground  claimed 
for  it,  was  not  material  to  the  Issue.     As 
already  stated.  It  was  admitted  u])on  a  false 
assumption  as  to  what  respondent's  direct 
examination  contained,  and  for  the  purpose  of 
contradicting  It.    Respondent  bad  not  made 
her  character  for  chastity  before  her  mar- 
riage to  Connelly  an  issue  In  the  case.    The 
rule  tn  this  criminal  prosecution  Is  that  she 
alone  could  make  that  issue.    To  allow  the 
prosecutor  to  make  It  by  Improper  cross-ex- 
amination would  abrogate  the  well-settled 
rule  above  stated.    We  conclude  that  both 
the  cross-examination  above  referred  to,  and 
the  testimony  of   the  witnesses   introduced 
to  contradict  such  cross-examination,  were 
Improperly  admitted.     This  testimony  was 
prejudicial  to  respondent,  and  could  have 
been  offered  for  no  other  purpose.    The  court 
was  In  error  in  not  sustaining  respondent's 
objections  to  all  this  testimony.    There  are 
some  minor  propositions  which  do  not  re- 
quire consideration.    Upon  a  new  trial  they 
will  doubtless  be  avoided. 

For  the  error  pointed  out,  the  conviction 
and  Judgment  are  reversed  and  set  aside, 
and  a  new  trial  is  ordered. 

BLAIR,  C.  J.,  and  OSTUANDER  and 
MOORE.  JJ.,  concurred  with  McALVAY.  J. 


•For  other  cases  gee  same  topic  and  aectlon  NUMBER  in  Dec.  &  Am.  Digs.  1907  to  data,  &  Reporter  ludcxci 


Digitized  by 


Google 


lUdL) 


PEOPLE  V.  CONNELLY. 


81 


HOOKEB,  J.  (dissenting).  The  defendant 
was  convicted  of  manslaughter  upon  an  in- 
formation charging  murder.  The  testimony 
offered  on  behalf  of  the  prosecution  showed 
that  the  defendant  and  her  husband  engaged 
In  a  qnarrel,  and  that  he  had  knocked  her 
down,  that  she  lay  there  groaning,  and  said 
that,  "when  she  should  get  up,  she  would 
fix  blm";  that  she  soon  got  up  and  went  to 
tbe  bed  and  procured  a  revolver.  He  turned 
around,  apparently  -  to  see  what  defendant 
was  doing,  and  the  witness,  "seeing  them 
stand  close  together,  and  (as  she  stated) 
knowing  that  there  was  going  to  be  some- 
thing doing,  was  Just  going  to  run  out  of 
the  door,  when  she  heard  a  shot  fired,  and 
when  she  got  nearly  a  block  off  sbe  heard 
two  more."  Death  of  tbe  husband  soon  fol- 
lowed from  the  effect  of  the  shots. 

The  defendant  testified  In  her  own  behalf, 
HBiffflng  provocation  and  shooting  In  self- 
defense.  Her  counsel  saw  fit  to  Introduce 
through  her  testimony  evidence  that  the  de- 
fendant's husband  bad  Induced  her  to  engage 
in  prostitution  to  support  them,  that,  of 
course,  she  did  not  want  to  do  this,  but  after 
discussing  it  two  or  three  days  she  consent- 
ed, and  (4>parently  sbe  continued  tbe  prac- 
tice up  to  the  time  of  the  shooting.  On 
cross-examination  she  practically  admitted 
being  arrested  and  fined  as  a  prostitute  in 
Jackson,  but  denied  many  questions  designed 
to  ibow  that  she  was  a  common  prostitute 
before  her  marriage  to  tbe  deceased,  among 
other  testimony,  evidence  that  sbe  kept  a 
boose  of  bad  repute  while  she  lived  with  a 
former  husband,  who  secured  a  divorce  from 
ber.  The  prosecution  admitted  that  his  tes- 
timony was  admissible  only  to  meet  defend- 
ant's claim  that  sbe  was  a  moral  woman 
until  corrupted  by  her  husband's  infiuence. 
On  cross-examination  sbe  was  Interrogated 
at  length  upon  ber  conduct,  and  with  regard 
to  having  and  threatening  ber  husband  and 
other  people  with  a  revolver,  and  denied 
having  a  revolver  or  doing  so.  Much  of  this 
testimony  came  in  without  exception.  More- 
over, tbe  whole  subject  was  Introduced  with- 
out Its  having  any  close  connection  with  the 
altercation,  which  apparently  arose  over  the 
breaking  of  the  whisky  bottle.  Counsel  evi- 
dently thought  It  was  Important  testimony 
for  the  defendant,  and,  If  so,  it  was  proper 
to  show  that  the  claim  that  defendant  was 
responsible,  for  her  Immorality  was  untrue. 

Counsel  allege  error  upon  tbe  prosecutor's 
refusal  to  examine  a  witness  who  was  sub- 
poenaed at  defendant's  request  Tbe  prose- 
cutor produced  the  witness,  who  was  fully 
examined  by  cotmsel  for  defendant.  She 
was  not  present  at  the  shooting,  though 
beard  some  of  tbe  quarrel  and  testified  to  it. 
Tbe  defendant  was  not  Injured,  even  If  tbe 
prosecutor  should  have  been  required  to  do 
more  than  to  produce  the  witness,  wblcb  we 
do  not  decide. 

As  to  remarks  of  the  prosecuting  attorney, 
tbey  will  compare  favorably  with  those  of 

122  N,W.— 6 


defendant's  counsel,  and  do  not  call  for  « 
reversal  of  tbe  case. 

Counsel  contend  that  the  learned  Judge  of 
the  superior  .court  omitted  necessary  instruc- 
tions relating  to  Justifiable  or  excusable 
homicide.  We  think  otherwise.  After  in- 
structing the  Jury  regarding  murder  and 
manslaughter,  he  discussed  at  some  length 
counsel's  claim  of  self-defense,  and  he  used 
this  language:  "It  must  appear  that  tbe 
circumstances  were  sufficient  to  excite  tbe 
fears  of  a  reasonable  man  or  woman  under 
the  circumstances  In  the  case,  and  that  she 
acted  under  tbe  Influence  of  those  fears. 
But,  If  you  find  that  the  respondent  honestly 
believed  at  tbe  time  that  sbe  fired  this  shot 
that  Connelly  intended  to  assault  her  and 
do  her  grievous  harm,  or  that  her  life  was 
In  danger  at  that  moment,  and,  acting  under 
that  belief  as  the  circumstances  appeared 
to  her,  fired  the  Shot  which  kiUed  the  de- 
ceased, then  It  would  not  be  murder,  but 
Justifiable  or  excusable  homicide.  •  •  • 
And  It  is  not  a  question  in  this  case  whether 
Sweeney  ought  to  have  been  killed  on  gener- 
al principles  or  not  But  did  the  respondent 
honestly  believe  at  the  time  sbe  fired  tbe 
shot  that  be  fully  intended  to  kill  ber  or  do 
her  great  bodily  barm,  and  was  in  a  position 
to  do  it  and.  If  you  find  that  she  did  so 
honestly  believe  and  acted  under  that  be- 
lief, then  It  would  be  Justifiable  homicide. 
You  must  take  the  facts  and  circumstances 
as  they- appeared  to  her.  •  •  •  I  have  a 
request  on  that  point  on  the  part  of  tbe  de- 
fendant that  I  will  give:  "Tbe  danger  or  ap- 
parent danger  Is  that  that  appeared  to  tbe 
defendant  at  the  time  and  not  the  danger 
or  lack  of  danger  that  might  appear  to  one 
afterwards.  She  was  to  be  the  Judge,  and 
all  that  tbe  law  required  of  her  was  to  act 
honestly.  And,  If  you  find  she  honestly  be- 
lieved that  she  was  In  danger  of  great  bodi- 
ly barm  or  death  she  bad  a  right  to  protect 
herself,  4nd,  if  it  was  necessary  for  that 
purpose  to  resort  to  the  use  of  the  revolver 
if  she  honestly  believed  at  that  time  that 
she  was  In  danger  of  death  or  other  bodily 
harm,  she  bad  a  right  to  do  so."  This  was 
quite  as  broad  a  statement  of  the  rule  as 
defendant  was  entitled  to.  We  think  that 
be  also  made  all  necessary  explanation  of 
the  subject 

We  are  asked  to  reverse  the  cause,  for  the 
reason  that  the  trial  Judge  neglected  and  re- 
fused to  charge  tbe  Jury  that  there  was  no 
evidence  of  murder.  Counsel  do  not  point 
out  such  a  request  or  a  refusal,  and,*  If  there 
was  such,  we  do  not  find  it  We  do  find, 
however,  that  assignment  of  error  No.  40 
under  which  the  statement  in  the  brief  is 
made  omits  to  claim  the  refusal  of  such  a 
request  The  brief  Is  therefore  misleading, 
and  has  compelled  a  search  to  ascertain  the 
true  situation.  We  point  It  out  because 
statements  of  that  degree  of  inaccuracy  in- 
evitably make  much  unnecessary  labor  un- 
less relied  upon  without  question.  In  which 


Digitized  by  VjOOQ  l€ 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


case  they  may  easily  lead  to  Improper  re- 
versal. An  unreliable  brief  should  have  no 
place  In  a  court  of  Justice,  and  care  should 
be  taken  to  arold  such  mistakes,  as  that 
pointed  out  The  defendant  was  convicted 
of  manslaughter,  and  might  under  the  tes- 
timony have  been  convicted  of  murder  In  the 
second  degree  If  not  the  first  She  has  no 
reason  for  complaint  upon  the  ground  men- 
tioned. 

Complaint  is  made  of  the  statement  that, 
when  a  homicide  Is  committed  by  the  use  of 
a  dangerous  weapon,  malicious  Intent  may 
be  presumed.  With  the  quallflcatlon  which 
accompanied  the  statement  made  there  was 
no  error. 

We  have  found  no  error  in  the  record,  and 
the  conviction  should  be  affirmed. 

GRANT  and  MONTGOMERY,  JJ.,  concur- 
red with  HOOKER,  J. 


DORFP  y.  ST.  ADELBERT'S  AID  SO- 
CIETY. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

Beneficiai.  Associations  (S  18*)— Sick  Ben- 
efits— By-  Laws — Waiveb. 

Where  an  aid  society  by  constitution  and 
by-laws  prohibits  its  members  from  belouging 
to  another  society  not  approved  by  the  Catho- 
lic Church,  It  waives  the  provisions  by  accept- 
ing dues  from  a  member  knowing  of  his  member- 
ship in  an  unapproved  societj^ 

[Ed.  Note.— For  other  cases,  see  Beneficial 
Associations,  Cent  Dig.  |  42 ;   Dec.  Dig.  |  1&*] 

Error  to  Circuit  Court  Kent  County ;  Wil- 
lis B.  Perkins,  Judge. 

Action  by  Paul  Dorff  against  the  St  Adel- 
bert'8  Aid  Society  to  recover  sick  benefits. 
From  a  Judgment  for  plaintiff,  defendant 
brings  error.    Affirmed. 

Argued  before  BLAIR,  C  J.,  and  GRANT, 
MONTGOMERY,  McALVAY,  and  BROOKE, 
JJ. 

McKnigbt  &  McAllister,  for  appellant 
Charles  A.  Watt  for  appellee. 

BROOKE,  J.  The  plaintiff  In  this  case 
for  many  years  prior  to  October,  1901,  was  a 
member  of  the  Aid  Society,  which  is  a  cor- 
poration organized  under  the  laws  of  the 
state  of  Michigan,  having  a  constitution  and 
by-laws,  collecting  dues  from  its  members, 
and  in  case  of  sickness  of  a  member  the  by- 
laws provide  for  the  payment  of  $3  a  week 
for  sick  benefits.  Under  the  terms  of  the  by- 
laws no  member  of  the  St  Adelbert's  Aid  So- 
ciety can  belong  to  any  society  that  is  not 
approved  by  the  Roman  Catholic  Church. 
Section  12  of  article  XII  of  Its  constitution 
provides:  "That  no  member  of  the  St  Adel- 
bert's ^id  Society  can  be  a  member  of  any 
society  that  is  not  approved  by  the  Roman 
Catholic  Church."  The  plaintiff  bad  been  a 
member   of   the   Polish   American   Alliance 


from  the  year  1896,  and  continued  bis  mem- 
bership in  said  society  up  to  the  time  of 
bringing  this  suit  An  effort  seems  to  have 
been  made  by  the  defendant  In  this  case  to 
have  all  its  members  leave  the  Pollsb  Alli- 
ance. Plaintiff,  however,  did  not  do  so.  His 
dues  In  defendant  society  were  refused  in 
February,  1901,  upon  the  ground  that  he  was 
a  member  of  the  other  society;  but  at  tbe 
end  of  six  months  he  was  notified  of  bis  re- 
instatement and  paid  the  dues  for  the  back 
six  months,  and  continued  as  a  member  in 
good  standing,  the  defendant  company  ac- 
cepting dues  for  the  months  of  October  and 
November  of  1902.  On  May  25,  1902,  tbe 
plaintiff  became  HI.  Defendant's  sick  com- 
mittee was  notified,  and  defendant  was  paid 
$6  for  two  weeks'  benefit  in  June,  when  it 
refused  to  pay  further  upon  the  ground  that 
the  plaintiff  was  working.  Defendant  paid 
$12  for  four  weeks'  sick  benefit  in  the  montb 
of  September.  There  is  no  doubt  that  tbe 
plaintiff  continued  to  be  ill  from  September 
1,  1902,  up  to  the  time  of  the  commencement 
of  suit  a  period  of  63  weeks. 

The  learned  circuit  judge,  who  tried  tlie 
case  without  a  Jury,  found  as  a  matter  of 
law  that  the  defendant  society  had,  by  ac- 
cepting dues  from  the  plaintiff  with  full 
knowledge  of  bis  membership  in  the  otlier 
society,  waived  the  provision  In  the  consti- 
tution and  by-laws  relative  to  membership, 
and  that  tbe  plaintiff  was  entitled  to  re- 
cover the  sum  of  $211.80,  with  costs.  In  this 
conclusion  we  think  the  circuit  Judge  was 
correct  The  record  discloses  the  fact  that 
the  plaintiff  had  paid  dues  In  tbe  defendant 
society  for  28  years,  and  since  1896,  at  any 
rate,  had  been  a  member  of  the  Polish  Alli- 
ance as  well.  It  would  be  grossly  Inequita- 
ble to  permit  this  defendant  society  to  con- 
tinue collecting  dues  from  members  known 
by  it  to  be  Ineligible  to  membership  under  its 
constitution  and  by-laws,  and,  when  such 
members  by  reason  of  Illness  bad  become  en- 
titled to  the  benefits  provided  by  the  organi- 
zation, to  allow  it  to  shield  itself  behind  the 
provision  in  tbe  constitution  in  order  to  avoid 
its  obligation. 

The  Judgment  is  affirmed. 


MERRINANE  v.  MILLER  et  al 
(Supreme  Court  of  Michigan.     July  6,  1909.> 

Intoxicatino   Liquobs   ({   88*)  —  Dkaxbbs' 

Bonds— Actions — Judoueni. 

A  plaintiff  suing  under  the  civil  damage  act 
a  liquor  dealer  and  three  sets  of  sureties,  and 
recovering  a  verdict  against  all  for  $5,925,  while 
two  sets  of  sureties  had  executed  bonds  for  on- 
ly $3,000,  may,  on  consenting  to  a  discontin-* 
nance  of  the  action  against  such  sureties,  obtain 
judgment  against  the  liquor  dealer  and  the  otli- 
er surety  who  had  given  bonds  aggregating  SG  ~ 
000. 

[Ed.  Note.— For  other  cases,  see  IntoxicatinK 
Liquors,  Dec.  Dig.  §  88.*] 


•ror  otber  < 


I  M*  same  tople  and  Mctlon  NUMBER  la  Dae.  *  Am.  Bis*.  UOT  to  data^  ft  Raportar  Indaxa 


Digitized  by 


Google 


UldL) 


FITZPATRICE  t.  MANHEIMBR. 


83 


On  motion  for  rebearlng.  Granted.  Judg- 
ment conditionally  affirmed. 

For  former  opinion,  see  118  N.  W.  11.  See, 
also,  14S  Mich.  412,  111  N.  W.  1050. 

Argned  before  BLAIR,  G.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDER.  HOOKER, 
MOORE,  McAIiVAY,  and  BROOKE,  JJ. 

MONTGOMERY,  J.  This  case  was  deter- 
mined at  the  October  term,  1908,  and  is  re- 
ported In  118  N.  W.  IL  A  motion  for  a  re- 
hearing was  granted  npon  the  application  of 
the  plaintiff,  it  being  contended  that  this 
coart  waa  in  error  in  requiring  a  remittitur 
from  the  Judgment  down  to  $3,000  as  against 
all  the  defendants,  for  the  reason  that  it  ap- 
peared that  the  plaintiff,  on  defendant's  ap- 
plication for  a  new  trial  in  the  circuit  court, 
consented  that  the  court  might  grant  a  new 
trial  to  the  defendants  Gorwln  and  Rank, 
who  were  limited  in  their  andertaking  to  the 
amonnt  of  $3,000,  and  also  that  the  plaintiff 
subsequently  asked  the  circuit  court  to  enter 
an  order  discontinuing  the  case  as  to  Corwln 
and  Rank,  who  had  signed  for  only  $3,000. 
Under  these  circumstances,  it  is  claimed  that 
the  Judgment  sbond  stand  as  against  the 
principal  and  the  surety,  Teufel,  who  was  a 
surety  on  two  bonds  amounting  in  the  ag- 
gregate to  $6,000,  a  sum  less  than  the  amount 
of  the  rerdict  and  Judgment. 

Our  attention  is  directed  to  the  case  of 
Moreland  t.  Dnrocher,  121  Mich.  398,  80  N. 
W.  284,  as  bearing  upon  this  question.  It 
most  be  admitted  that  the  importance  of  this 
case  as  bearing  upon  the  question  under  con- 
sideration escaped  the  attention  of  the  court 
at  the  former  hearing.  That  case  was  an 
action  against  two  liquor  dealers  and  their 
bondsmen,  and  Judgment  was  had  against 
all  the  defendants  in  the  sum  of  $1^200,  and, 
upon  a  motion  of  one  of  the  sureties  and  his 
bondsmen,  a  motion  for  a  new  trial  was 
granted,  and  the  Judgment  allowed  to  stand 
as  to  the  other  principal  and  his  bondsmen. 
In  principle  the  case  Is  not  to  be  distinguish- 
ed from  the  present.  The  finding  of  the 
Jury  In  the  present  case  is  that  all  the  de- 
fendants are  liable  for  the  amount  of  the 
Terdlct,  and  it  is  true  in  this  case,  as  it  was 
in  that,  that  the  plaintiff  might  have  proceed- 
ed against  the  defendants  as  to  whom  she 
now  clainos  that  the  Judgment  should  stand 
or  might  hare  discontinued  as  to  the  code- 
fendants  at  any  stage  of  the  proceedings.  In 
the  language  of  the  court  in  that  case:  "It 
Is  not  easy  to  perceive,  therefore,  where  the 
action  is  thus  severable  as  well  as  Joint,  and 
where  the  right  exists  to  proceed  against  a 
portion  or  ail  of  the  defendants,  why  the 
plaintiff  should  be  compelled  to  lose  her  Judg- 
ment against  a  portion  because  It  appears 
that  the  others  are  entitled  to  a  new  trial." 
It  is  claimed  that  to  penult  a  discontlnnanee 
M  to  a  portion  of  the  defendants  would  be 
iDcqultable  and  the  case  of  Albright  v.  Mc- 


Tlgbe  (C.  0.)  49  Fed.  817,  Is  cited  as  a  case 
in  point.  In  that  case  the  court  was  exer- 
cising a  discretion  In  refusing  to  grant  a  new 
trial.  It  differs  from  the  present  case  in 
that  respect.  In  the  present  case  the  ques- 
tion is  as  to  whom  the  Judgment  as  entered 
Is  erroneous,  and  as  to  them  only  is  a  new 
trial  Justified. 

We  are  constrained  to  hold  that  we  were 
In  error  in  directing  a  reduction  of  the  Judg- 
ment. 

The  Judgment  will  be  reversed,  unless  the 
plaintiff  shall  elect  to  discontinue  as  to  the 
defendants  Gorwln  and  Rank,  and.  If  she 
shall  so  elect,  the  Judgment  will  stand  af- 
firmed. 


FITZPATRICK  v.  MANHEIMER  et  al. 
(Supreme  Court  of  Michigan.     July  6,  19U0.) 

1.  Principal  ano  Agent  ({  146*)— Contracts 
—Parties  Liable— Aoent  Contractino  as 
Principal. 

A  party  to  a  contract  may  sue  the  one 
contracting  aa  principal,  though,  in  fact,  he  is 
merely  an  agent. 

[Ed.  Note.— For  other  cases,  see  Principal  and 
A  pent,  Cent  Dig.  fj  621-527;  Dec.  Dig.  I 
148.*] 

2.  Sales  (|  446*)— Action  on  Wahrantt— 
Declaration— iNSTRncTiONS. 

Where  the  declaration  was  framed  on  a 
warranty  given  by  defendant  on  a  sale  b^  him 
of  l)ook  accounts  to  plaintiff,  and  tbe  evidence 
showed  that  a  third  person  bad  bought  the  ac- 
counts and  assigned  them  to  plaintiff,  an  in- 
struction that  if  defendant  sold  tbe  accounts  to 
the  third  person,  and  to  aid  the  latter  to  sell 
them  made  representations  to  plaintiff  regard- 
ing them,  defendant  was  liable,  wns  erroneous 
for  failing  to  submit  the  Issue  whether  plaintiff 
dealt  witn  the  third  person  as  principal,  and 
not  with  defendant. 

[Ed.  Note.— For  other  cases,  see  Sales,  Dec. 
Dig.  I  446.*] 

Error  to  Circuit  Court,  Hillsdale  County; 
Guy  M.  Chester,  Judge. 

Action  by  Merton  Fltzpatrlck  against  San- 
ford  Manhelmer  and  another.  There  was 
a  Judgment  for  plaintiff,  and  defendants 
bring  error.  Reversed,  and  new  trial  or- 
dered. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  MOORE,  and  McAL- 
VAY,  JJ. 

Corvis  M.  Barre  (B.  E.  Sheldon,  of  coun- 
sel), for  appellants.  Merton  FItzpatrick  and 
Grant  Fellows,  for  appellee. 

MONTGOMERY,  J.  This  action  was 
brought  for  a  breach  of  warranty  on  the  sale 
of  book  accounts.  The  declaration  alleges 
that  the  plaintiff  bargained  with  the  defend- 
ants to  buy  of  them,  the  said  defendants, 
certain  accounts  against  numerous  and  di- 
vers parties,  and  that  the  said  defendants 
then  and  there  knowingly,  falsely,  and  fraud- 
ulently represented  and  warranted  that  the 
total  sum  of  said  accounts  amounted  to  the 


•Fn  other  casas  sea  same  topic  and  section  NUMBER  la  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


84 


122  KOBTHWESTBBN  BEPORTEB. 


(Mlcb. 


sam  of  $4,139.37.  The  declaration  avers  that 
these  representations  were  false  as  to  the 
amount  of  the  accounts.  The  second  count 
is  not  dltferent  in  substance.  On  the  trial 
plaintiff  gave  testimony  showing  that  he 
was  approached  by  one  Frank  Masters,  who 
suggested  that  he  buy  the  Manbeimer  ac- 
counts. He  testified  that  he  understood  that 
the  Manheimers  still  owned  the  accounts. 
As  a  matter  of  fact,  when  the  sale  was  con- 
cluded, both  the  Manheimers  were  present 
and  two  assignments  were  drawn,  one  from 
Manheimer  Bros,  to  Ma.sters,  who,  it  seems, 
had  previously  purchased  the  accounts  of 
Manheimer  Bros.,  and  the  following  assign- 
ment to  the  plaintiff:  "Hillsdale,  Michigan, 
March  22d,  3900.  In  consideration  of  ?2,000, 
I  hereby  sell,  assign,  transfer,  and  set  over 
to  Merton  Fltzpatrick  all  accounts  this  day 
)oId  to  me  by  Manheimer  Bros.,  hereby 
;;iving  to  said  Fltzpatrick  the  power  to  col- 
lect said  accounts  the  same  as  I  could  do. 
Frank  L.  Masters."  The  plaintiff  testified 
that  he  supposed  he  was  buying  the  accounts 
of  Manheimer  Bros.,  and  that  Masters  was 
helping  him.  He  further  testified  on  cross-ex- 
amination: "I  didn't  know  until  the  accounts 
were  figured  up,  and  I  didn't  know  then 
what  I  was  going  to  do,  whether  Mr.  Mas- 
ters was  going  to  sign  a  note  with  me,  run- 
ning to  Manheimer  Bros.,  or  how  it  would 
be  fixed.  I  didn't  know  anything  about 
how  it  would  be;  but,  when  it  come  to  that. 
Masters  said  to  me,  'Draw  an  assignment  of 
these  accounts  to  me,'  and  I  did,  and  I  sat 
right  there  and  did  it,  and  I  also  drew  one 
from  Mr.  Masters  to  myself.  And  I  gave 
Mr.  Masters  my  note  for  $2,000,  and  he  took 
care  of  the  Manheimers.  Q.  And  still  you 
say  now  that  you  don't  know  who  you 
bought  them  of,  whether  you  bought  them 
from  Masters  or  Manheimers?  A.  Well, 
tecbnicaliy  speaking,  I  don't.  I  gave  my 
note  to  Masters."  The  plaintiff  recovered 
Judgment,  and  the  defendants  bring  error. 
The  assignments  of  error  are  very  gen- 
eral, but  it  is  conceded  by  plaintiff's  coun- 
sel that  assignment  of  error  No.  6  is  suffi- 
cient to  raise  the  question  of  whether  this 
action  could  be  maintained  against  the  de- 
fendants, even  though  the  sale  was  a  sale 
from  Masters  to  the  plaintiff.  The  charge 
of  the  court  excepted  to  was  as  follows: 
"If  these  defendants  did  sell  these  accounts 
to  'Mr.  Masters,  but,  for  the  purpose  of  aid- 
ing him  to  sell  them,  they  made  representa- 
tions to  this  plaintiff  regarding  the  accounts 
as  to  their  accuracy,  or  what  they  were, 
then  I  think  they  would  be  liable  the  same 
as  if  they  had  sold  them  direct  to  Mr.  Fltz- 
patrick, if  you  find  that  these  representa- 
tions are  not  true,  I  mean."  It  is  urged  by 
plaintiff's  counsel  that  the  case  of  an  un- 
-dlsclused  principal  appears,  and  that  the 
party  to  a  contract  may  sue  the  one  con- 
tracting as  principal,  although,  in  fact,  he 


may  be  an  agent  merely.  This  Is  undoubted- 
ly true,  and  it  also  may  be  true  that,  as 
contended,  for  a  tortious  wrong  the  agent 
himself  may  be  liable  with  the  principal. 
But  the  Infirmity  In  this  Instruction  Is  thai 
it  did  not  leave  to  the  jury  the  question, 
of  whether  the  plaintiff  knew  of  the  sale 
to  Masters  and  was  dealing  with  Masters. 
There  was  enough  upon  the  face  of  the  pa- 
pers themselves — that  is,  the  transfers — to 
raise  a  question  of  fact  at  least  as  to  wheth- 
er the  plaintiff  did  not  deal  with  Masters 
as  principal,  and  not  with  the  Manheimers. 
The  declaration  was  framed  upon  a  war- 
ranty. The  warranty  was  alleged  to  have 
been  given  by  defendants  upon  a  sale  by 
them  to  the  plaintiff.  There  was  nothing  to 
apprise  the  defendants  of  any  claim  that 
the  defendants  were  guilty  of  a  tortious 
wrong  not  resting  upon  contract  such  as 
was  averred  In  the  declaration,  and  the  aver- 
ment as  to  the  contract  under  which  the 
plaintiff  purchased  was  a  matter  of  essen- 
tial description,  and  could  not  be  Iptnored  in 
the  proofs.  We  are  constrained  to  hold  that 
this  assignment  of  error  is  well  taken. 

We  do  not  pass  upon  the  other  questions 
presented,  nor  do  we  pass  upon  the  motion 
to  amend  the  assignments  of  error,  for  the 
reason  that  a  new  trial  must  result  from 
this  holding,  and  the  case,  if  presented  for 
a  new  trial,  may  not  make  a  consideration 
of  the  other  questions  necessary.  Upon  the 
record  as  presented,  the  assignments  are  too 
general  to  be  considered  without  amend- 
ment. 

The  Judgment  will  be  reversed,  and  a  new 
trial  ordered. 


HEATH  V.   CAtKINS. 

(Supreme  Court  of  Michigan.     July  6,  1900.) 

1.  NEaLiGENCB  (8  134*)  — Evidence— Suffi- 
ciency. 

One  suing  for  a  personal  injury  negligent- 
ly inflicted  by  another  cannot  recover  on  proof 
of  facta  whicli  are  equally  consistent  with  the 
absence  of  negligence  on  the  part  of  the  defend- 
ant. 

[Ed.  Note.— For  other  oases,  sec  Negligence, 
Cent.  Dig.  §§  267-273 ;    Dec.  Dig.  §  134.»] 

2.  Masteb  awd  Servant  (8  286*)— Injttby  to 
Servant  —  Neoliqence  —  Evidence  — 
Question  for  Jury. 

In  an  action  for  injury  to  a  servant  by 
the  explosion  of  a  flash  light  mixture,  evidence 
held  to  require  submission  to  the  jury  of  the 
issue  of  negligence  of  the  master  in  substitut- 
ing an  explosive  material  in  place  of  magnesium, 
forming  a  part  of  the  mixture. 

(Ed.  Note;— For  other  cases,  see  Master  and 
Servant,  Dec.  Dig.  {  286.*J 

Grant,  3.,  dissenting. 

Error  to  Circuit  Court,  Washtenaw  Coun- 
ty;   I'Viward  D.  Klnne,  Judge. 

Action  by  Homer  U  Heath  against  Elea- 
zer  E.  Calkins.    There  was  a  Judgment  for 


•Fur  other  caucs  see  same  topic  and  secllon'NUMBER  In  Dec.  &  Am.  Ulga.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


MldL) 


HBATH  V.  CALKINS. 


85 


defendant,  and  plaintiff  brings  error.     Re- 
versed, and  new  trial  ordered. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Frank  A.  Stivers  and  Homer  R.  Mallow 
(M.  J.  Lehman,  of  counsel),  for  appellant 
Blum  &  Sample  (Arthur  Brown  and  Edson 
S.  Sunderland,  of  counsel),  for  appellee. 

HOOKER,  J.  The  defendant  was  a  drug- 
gist. He  was  also  engaged  In  the  business 
of  photography,  especially  that  of  talcing 
flash  light  pictures.  The  pictures  were  gen- 
erally taken  by  one  Thomas,  assisted  by  the 
plaintiff,  who  usually  operated  the  flash 
light  Both  were  employ&i  of  the  defend- 
ant On  the  occasion  of  the  accident  which 
led  to  this  action,  the  defendant  procured 
some  flash  light  powder  supposed  to  be  sim- 
ilar to.  If  not  Identical  with,  that  generally 
nsed  by  him.  The  manufacturer  testlfled 
that  It  was  Identical  with  It  and  there  is  no 
testimony  aside  from  the  fact  of  the  acci- 
dent tending  to  contradict  such  statement, 
nnless  It  be  the  fact  that  It  was  called 
by  a  different  name,  which  was  explain- 
ed. It  appears  to  be  conceded  that  the 
flash  light  powder  theretofore  used  had  nev- 
er appeared  unsafe.  It  had  been  the  prac- 
tice to  mix  magnesium  with  such  powder, 
which  was  usually.  If  not  always,  furnished 
by  the  defendant,  "or  whoever  was  In  his 
store,"  to  Thomas,  who  mixed  It  with  the 
powder.  This  was  to  get  a  maximum  amount 
of  light  and  they  were  mixed  in  equal  pro- 
portions. It  was  the  practice  to  mix  It  In 
the  store  on  the  scales.  There  was  evidence 
that  the  addition  of  magnesium  to  the  pow- 
der would  not  tend  to  make  It  explosive,  that 
it  would  give  no  such  property  to  the  flash 
light  powder,  and  this  testimony  was  uncon- 
tradicted. Thomas  testiiied  that  on  this  oc- 
casion the  defendant  personally  gave  him  the 
powder.  He  does  not  say  who  gave  him  the 
magnesium  unless  It  Is  to  be  Inferred  from 
the  statement:  "Mr.  Calkins  furnished  me 
the  powder  which  I  nsed  in  making  my  prep- 
aration for  the  flash  light.  He  furnished 
it  to  me  personally,  and  I  mixed  It  in  the 
store  as  usual.  •  •  *  I  took  this  pow- 
der and  mixed  It  exactly  the  same  way  as 
I  bad  always  done,  equal  parts  of  the  mag- 
nesium and  the  powder."  This  was  uncon- 
tradicted. The  use  of  this  powder  was  ac- 
companied by  a  violent  explosflon,  and  plain- 
tiff lost  his  hand.  The  defendant  claims 
that  this  is  conclusively  shown  to  have  been 
a  safe  powder;  that  magnesium  was  used 
with  it;  that  magnesium  could  not  cause 
the  mixture  to  be  explosive.  His  counsel 
therefore  contend  that  the  explosion  is  a 
mystery,  and  that  it  is  not  shown  that  be 
has  been  negligent  It  is  also  said  that  In 
furnishing  powder  procured  from  a  reputable 
dealer  he  discharged  his  whole  duty.  The 
trial  Judge  directed  a  verdict  for  the  defend- 
ant, and  plaintiff  has  appealed. 


It  is  a  self-evident  proposition  that  this 
mixture  exploded.  It  is  therefore  a  natural, 
though  perhaps  not  an  inevitable,  Inference 
that  the  explosive  property  should  be  sought 
in  the  powder  Itself,  or  in  the  ingredient 
Itself,  or,  if  in  neither  alone  could  It  be 
found,  then  in  the  combination  of  the  two 
ingredients.  Was  there  any  evidence  from 
which  an  inference  could  be  drawn,  which 
it  was?  Under  the  evidence,  the  powder  was 
not  explosive,  the  magnesium  was  not  ex- 
plosive, and  the  combination  of  the  two  In 
equal  parts  would  not  be  and  never  had 
been  within  the  parties'  experience  explosive. 
If  the  jury  were  convinced  of  these  things, 
they  would  naturally  suspect  that  some  mis- 
take was  made,  and  that  magnesium  or  flash 
light  powder  was  not  used,  but  some  other 
powder  or  mixture  more  harmful.  The  tes- 
timony on  this  subject  might  be  more  sat- 
isfactory. If  Thomas'  testimony  will  bear 
the  construction  that  defendant  personally 
delivered  to  him  both  ingredients  about 
which  minds  might  differ,  it  does  not  un- 
equivocally show  that  one  was  magnesium, 
while  the  defendant  Is  silent  upon  the  sub- 
ject. We  are  of  the  opinion  that  there  is 
evidence  in  this  case  from  which  the  Jury 
may  have  found  that  this  explosion  was  due 
to  the  flash  light  powder,  though  the  weight 
of  the  testimony  on  this  record  was  clearly 
and  strongly  against  It  Whether  the  de- 
fendant could  be  said  to  be  negligent  in 
view  of  the  source  from  which  he  purchas- 
ed we  need  not  decide,  because  it  was  com- 
petent for  the  Jury  to  find  that  the  explo- 
sion was  caused  by  the  other  ingredient,  and 
that,  magnesium  not  being  explosive,  or  ca- 
pable of  making  the  mixture  explosive,  it 
must  have  been  something  else,  and,  if  so, 
and  it  was  negligently  furnished  by  defendant 
himself,  or  bis  drug  clerk,  he  might  be  li- 
able, while,  if  procured  by  Thomas  himself, 
the  question  of  negligence  of  a  fellow  serv- 
ant might  perhaps  be  controlling  a  point  we 
do  not  decide. 

Counsel  contend  that  this  explosion  might 
bare  been  due  to  other  causes,  as  that  the 
bottle  with  powder  in  it  might  have  been 
left  in  the  pan,  and,  being  confined,  an  explo- 
sion resulted,  while,  had  it  been  properly 
used,  there  would  have  been  no  explosion, 
and  that  color  is  given  to  this  theory  by  the 
fact  that  the  bottle  was  never  found.  Oth- 
er causes  are  suggested,  such  as  that  too 
much  powder  was  used,  or  the  wrong  bottle 
taken  by  Thomas  by  mistake.  If  there  was 
evidence  tending  to  show  any  of  these  they 
were  legitimate  inquiries  for  the  jury,  and 
If  each  of  these  causes  was  as  probable  as 
any  of  the  others,  the  learned  circuit  Judge 
was  right  Whether  there  was  evidence 
tending  to  prove  all  of  these  we  cannot  say. 
We  think  not  but  we  do  think  that  there 
is  testimony  from  which  a  Juror  might  rea- 
sonably believe  that  a  substitute  for  magne- 
sium .was   used   through   defendant's   error 


Digitized  by  VjOOQ  l€ 


86 


122  NORTHWESTERN  REPORTER. 


OSicb. 


or  that  of  hto  clerk,  and  It  was  for  the  Jnry 
to  say  whether  under  the  proof  this  was  the 
more  probable  theory.  If  they  could  not 
say  that,  they  would  be  unable  to  reach  a 
verdict  for  plaintiff  on  that  theory  for  the 
plaintiff  should  not  recover  upon  proof  of 
facts  equally  as  consistent  with  the  absence 
of  negligence  on  the  part  of  defendant  as 
with  it.  In  some  cases  we  can  say  that  of 
testimony.  In  others  It  is  of  necessity  a 
question  for  the  Jury.  W^  think  that  this 
case  belongs  to  the  latter  class. 

The  Judgment  Is  reversed,  and  a  new  trial 
ordered. 

GRANT,  J.  I  am  unable  to  concur  In  tue 
result  reached  by  my  Brother  HOOKER. 
There  is  little,  if  any,  conflict  in  the  evi- 
dence. The  cause  of  this  explosion,  like 
many  another  Involving  the  use  of  explosive 
chemicals,  rests  in  doubt  There  is  no  evi- 
dence by  which  a  Jury  can  fasten  the  re- 
sponsibility therefor  upon  any  one.  The 
powder  purchased  was  a  standard  article 
of  commerce,  used  in  taking  flash  light 
photographs.  It  was  purchased  from  a  rep- 
utable flrm  in  CUcago.  It  was  manufactured 
by  one  Drake,  who  had  manufactured  the 
same  article  for  years.  The  manufacturer 
sold  it  in  the  name  of  "Magic  Powder." 
The  Chicago  flrm  desired  to  use  it  in  the 
name  of  "Ideal  Powder,"  and  had  made  ar- 
rangements with  the  manufacturer  to  so  use 
it  The  testimony  was  undoubted  that  it 
was  the  same  as  that  sold  under  the  label 
"Magic  Powder."  No  Instance  is  shown  that 
the  powder  ever  betore  exploded  with  such 
force.  The  manufacturer  testified  that  he 
had  always  tested  the  powder,  that  it  was 
ready  for  use,  and  that  no  further  test  by 
the  photographer  was  necessary.  There  was 
therefore  nothing  to  Indicate  that  this  Identic- 
al t>ox  of  the  material  was  composed  of 
any  other  than  the  usual  chemicals  In  the 
proper  proportions,  except  the  fact  that  it 
exploded.  The  evidence  is  equally  explicit 
and  conclusive  that  the  defendant's  employ^, 
Mr.  Thomas,  mixed  nothing  with  it  except 
magnesium,  which  does  not  add  to  the  ex- 
plosive character  of  the  powder,  and  that  he 
used  It  In  the  usual  manner  as  he  had  so 
often  done  before.  Did  Mr.  Thomas  make 
a  mistake  and  mix  some  dangerous  explosive, 
instead  of  using  the  magnesium?  There  is 
nothing  to  show  that  he  did,  except  the  mere 
fact  of  the  explosion.  There  is  not  even  any- 
thing to  show  that  there  were  any  dangerous 
explosive  chemicals  in  the  store  which  might 
acciientally  have  been  used.  No  duty  rest- 
ed upon  the  defendant  to  test  every  package 
or  charge  of  this  powder  before  using  it 
It  was  manufactured,  advertised,  and  label- 
ed as  ready  for  use  and  safe,  and  experience 
had  shown  that  it  was.  In  buying  and  using 
It  defendant  exercised  all  the  care  the  law 
requires.  Slegel  v.  United  Electric  Heating 
Co.,  143  Mich.  484,  106  N.  W.  1127.  Neither 
was  It  customary  for  the  users  thereof  to 


make  such  testa  One  Juror  might  guess  that 
the  trouble  was  with  the  powder,  and  might 
base  the  guess  upon  the  fact  that  the  powder 
marked  "Ideal"  was  withdrawn  from  market 
thereafter  because  defendant  tried  to  buy 
some  after  the  accident  in  order  to  make 
tests,  but  could  not  find  any.  Another  Juror 
might  guess  that  it  was  most  likely  that 
something  else  besides  magnesium  was  used 
by  Thomas,  the  defendant's  clerk,  in  mix- 
ing the  powder.  As  above  stated,  there 
Is  nothing  to  support  either  theory  except 
the  fact  of  the  explosion.  Another  Juror 
might  guess  that  some  one  had  tampered 
with  the  powder.  Others  might  have  differ- 
ent theories. 

I  think  the  learned  circuit  Judge  correctly 
summed  up  the  situation  In  directing  a  ver- 
dict, when  he  said:  "No  evidence  has  been 
Introduced  establishing  either  the  proximate 
or  remote  cause  of  this  unfortunate  accident 
If  there  is  any  person  who  can  explain  the 
mystery  of  this  accident,  he  has  not  been 
produced,  or  at  least  he  has  given  no  testi- 
mony upon  that  subject  It  therefore  re- 
mains a  mystery  how  or  what  caused  this 
explosion."  It  Is  certainly  as  reasonable 
to  suppose  that  in  some  way  there  was  a 
defect  in  the  powder  of  the  package  used 
caused  by  some  neglect  on  the  part  of  tbe 
manufacturer  as  it  would  be  to  suppose  that 
the  defendant  by  mistake  furnished  a  dan- 
gerous explosive  rather  than  the  innocent 
material  magnesium,  or  that  in  some  manner 
some  dangerous  explosive  had  become  mixed 
with  the  magnesium  used.  The  former 
seems  to  me  the  more  reasonable  supposition, 
because  the  manufacturer  used  dangerous 
explosives  in  the  manufacture  of  the  powder, 
while  there  is  no  evidence,  or  attempt  to  in- 
troduce any,  that  the  defendant  kept  or  used 
any  dangerous  explosive  which  could  by  any 
possibility  have  become  mixed  with  the  mag- 
nesium or  have  been  supplied  Instead  of  it. 
There  is  no  preponderance  of  evidence  in  fa- 
vor of  any  theory  advanced.  To  submit  sucb 
a  case  to  a  Jnry  would  be  to  turn  them  loose 
into  a  field  of  mere  speculation  with  no  evi- 
dence to  guide  them  to  the  cause  of  the  ex- 
plosion, or  the  responsibility  for  it. 

Furthermore,  I  think  the  declaration  is 
clearly  based  upon  the  idea  that  the  fault 
lay  in  the  powder  which  the  defendant  had 
purchased  and  furnished  for  use  on  this  oc- 
casion, and  not  upon  any  idea  that  the  de- 
fendant had  mixed  a  dangerous  explosive 
with  that  purchased.  It  appears  from  the 
record  as  above  stated  that  this  "Ideal  Pow- 
der" was  the  same  as  that  known  as  "Magic 
Powder,"  but  that  defendant  did  not  know 
this  when  he  stated  to  plaintlfTs  mother 
that  the  powder  was  a  new  one  which  he  had 
never  used  before,  and  that  he  thought  there 
was  something  the  matter  with  the  powder. 
The  declaration  contains  no  Intimation  of  a 
charge  that  the  defendant  had  himself  mixed 
some  dangerous  explosive  with  the  commer- 


Digitized  by  VjOOQ  l€ 


MldL) 


BOTTJB  T.  GRAND  BAPIDS,  0.  H.  A  H.  BY.  00. 


87 


dal  artlde^  wblcb  he  had  a  right  to  pur- 
chase and  sell  without  testing,  and  there  is 
no  evidence  that  he  did  so. 

Evidently  the  case  was  tried  upon  the  the- 
ory that  the  fault  lay  In  the  original  pow- 
der, and  not  In  the  magnesium  with  which  It 
was  mixed. 

The  Judgment  should  be  affirmed. 


BOTTJB  T.  GRAND  RAPIDS,  G.  H.  &  M. 

RY.  CO. 
(Supreme  Court  of  Michigan.     July  6,  1900.) 

Stxmt  Railboads  (S  87»)— Collisions  with 
Akimals  OB  VEHtcLES— Liability. 

While  plaintiff  was  driving  along  a  street 
hj  the  side  of  defendant's  track,  and  at  a  suffl- 
ci«nt  distance  from  the  track  to  enable  a  car 
to  pass,  a  car  came  up  t>ehind  him  and  fright- 
ened his  hotse,  which  Jumped  to  one  side  in 
front  of  the  car  and  was  injured.  Held,  that 
defendant  was  not  liable  for  the  Injury. 

[Ed.  Note.— For  other  cases,  see  Street  Rail- 
roads, Cent.  Dig.  f  181 ;   Dec.  Dig.  |  87.*] 

Error  to  Circuity  Court,  Ottawa  County; 
Philip  Padgbam,  Judge. 

Action  by  Edward  A.  Bottje  against  the 
Grand  Rapids,  Grand  Haven  &  Muskegon 
Railway  Company.  Verdict  was  directed  for 
defendant,  and  plaintiff  appeals.     Affirmed. 

Argued  before  MONTGOMERY,  OSTRAN- 
DER,  HOOKER,  MOORE,  and  BROOKE,  JJ. 

Walter  I.  LUIle,  for  appellant  Carroll, 
Kirwin  &  Hollway,  for  appellee. 

MONTGOMERY,  J.  The  defendant  is  an 
Intemrban  railway;  its  line  extending  from 
Grand  Haven  to  Grand  Rapids.  On  the  20th 
of  May,  1908,  while  plaintiff  was  driving 
alongside  of  the  track  In  the  highway,  a  col- 
lision occurred,  causing  fatal  Injuries  to  the 
horse  of  plaintiff,  and  damaging  the  buggy 
and  harness.  The  present  action  originated 
In  Justice's  court,  and  on  appeal  to  the  cir- 
enlt,  at  the  conclusion  of  the  plaintlflTs  case, 
a  verdict  iwas  directed  In  favor  of  the  de- 
fendant. The  declaration  was  oral,  and,  as 
It  is  brief  we  quote  the  same  at  length: 
"Plaintiff  declared  orally  for  damages  for 
negligence  on  the  20th  day  of  May,  1908,  on 
the  pabllc  highway  between  Spring  Lake 
and  Grand  Haven,  Mich.,  while  driving  horse 
from  Spring  Lake  to  Grand  Haven  on  7th 
street.  Just  east  of  the  bridge,  east  of  the 
Challenge  Refrigerator  Company,  was  struck 
by  car  coming  to  Grand  Haven  behind  the 
plaintiff  and  in  full  view  of  him  for  a 
great  many  feet  They  failed  to  ring  a 
bell  or  to  warn  the  plaintiff  or  to  slack  up 
the  speed  of  the  car,  which  was  backing  in. 
And,  as  tbe  plaintiff  tamed  out  to  pass  anoth- 
er rig  and  turned  close  to  the  rail,  the  car 
came  upon  him.  His  horse  became  frlght- 
eoed,  and  Jumped  onto  the  track  or  towards 
It,  and  was  struck  or  Injured  so  it  had  to  be 
killed.    Buggy  Injured,  and  plaintiff  thrown 


from  buggy.  All  to  the  plaintiffs  damage  of 
$100."  The  evidence  shows  that  on  the  day 
in  question  the  defendant's  car  was  being 
backed  along  the  street ;  that  this  was  made 
necessary  by  the  fact  that  certain  streets 
of  the  city  of  Grand  Haven  were  torn  up 
on  account  of  improvements  being  made. 
The  plaintiff's  description  of  the  collision 
is  that  as  he  was  driving  along  the  highway 
he  had  occasion  to  pass  a  rig  being  driven 
by  one  Staap;  that  he  turned  out  to  go  by 
this  rig,  and  after  driving  by,  his  own  bug- 
gy was  far  enough  from  the  track  so  that 
a  car  could  have  passed  him  without  Injury, 
but  that  aa  the  car  approached,  the  horse 
became  frightened  at  the  noise  in  the  rear 
and  Jumped  In  front  of  the  car,  and  received 
the  injuries  complained  of.  We  quote  from 
tbe  record.  He  testified  "that  be  had  just 
accomplished  the  turn— right  about  there — 
and  passed  that  right  and  was  pulling  on 
his  left  line  pulling  the  pony  back  in  the  cen- 
ter of  the  traveled  portion  of  the  highway; 
that  the  wheel  of  his  bugficy  was  nearer  the 
track  than  was  the  pony  when  the  car  came 
on;  that  he  does  not  know  how  far  the  same 
projects  over  the  rail,  but  it  does  project 
some;  that  the  buggy  was  smashed,  and  he 
don't  know  whether  tbe  car  did  it  or  not; 
that  the  car  struck  the  horse  first ;  that  the 
suddenness  of  the  car  coming  up  caused 
the  car  to  hit  the  horse;  that  the  suddenness 
of  the  car  coming  up  caused  the  horse  to 
Jump,  frightened  the  pony  and  she  Jumped, 
not  knowing  which  way  to  jump  to  get  out  of 
the  way;  that  It  was  the  noise  and  sudden- 
ness of  the  car  coming  up  that  made  the  pony 
jump;  that,  if  she  had  not  Jumped  In  front  of 
the  car,  'I  hardly  think  it  would  have  taken 
place';  that,  {f  there  had  not  been  any  car 
there,  she  wouldn't  have  been  killed;  that  the 
cause  of  the  accident  was  the  pony  jumping 
in  front  of  the  car  having  become  frightened 
at  the  noise  and  suddenness  of  the  approach- 
ing car;  the  car  coming  up  and  the  pony 
jumping  all  occurred  very  suddenly,  an  In- 
stant of  time;  that  the  car  went  about  a  car's 
length  after  the  pony  was  struck  before  It 
stopped."  The  circuit  Judge  was  of  the  opin- 
ion that  no  negligence  was  shown  on  tbe 
part  of  the  defendant.  He  said  In  determin- 
ing tbe  case:  "There  was  no  distance  back 
of  this  place  where  this  accident  occurred 
where  It  would  seem  under  this  testimony 
that  the  servants  of  this  company  could  have 
acted,  or  that  their  attention  could  have 
been  called  to  any  danger,  because  the  plain- 
tiff here  himself  says  that  It  It  had  not 
been  for  the  Jumping  of  the  horse,  there 
would  not  have  been  any  danger,  he  thinks, 
and,  of  course,  if  that  is  so,  there  could  not 
have  been  any  negligence  on  the  part  of 
the  employes.  They  could  not  have  foreseen, 
which  way  that  horse  was  going  to  Jump. 
Of  course,  if  he  had  jumped  the  other  way, 


•For  other  caaes  see  same  topic  and  lectlon  NUMBER  la  Dec.  *  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  LjOOQ  l€ 


88 


122  NORTHWESTERN  REFORTEB. 


(Ulch. 


he  would  have  been  safe,  or.  If  he  had  kept 
straight  ahetld,  he  would  hare  been  safe." 

We  think  this  fairly  states  the  case,  and 
the  application  of  well-settled  rules  of  law 
rendered  It  necessary  for  the  circuit  judge 
to  reach  the  conclusion  announced.  The 
case  Is  unlike  the  case  of  Montgomery  v. 
Lansing  City  Electric  By.  Co.,  108  Mich.  46, 

61  X.  W.  543,  29  h.  R.  A.  287,  and  also  unlike 
Blftkeslee  v.  Consolidated  Street  Ry.  Co.,  lOD 
Mlcb.  462,  63  N.  W.  401.  In  the  first  case, 
the  Injured  party,  who  was  directly  In  line 
with  the  car,  was  known  by  the  motorman 
to  be  in  a  position  where  he  would  receive  an 
injury  if  the  car  proceeded  without  halting, 
and  in  the  Blakeslee  Case  the  horse  was 
turned  In  in  front  of  the  car  far  enough  in 
advance  of  the  collision  to  have  enabled  the 
motorman  to  bring  the  car  under  control.  In 
the  present  case  there  was  nothing  to  give 
notice  to  the  defendants'  employes  that  a 
collision  was  liable  to  occur.  The  plalntlfTs 
carriage  and  horse  were  both  a  sufficient 
distance  from  the  track  to  enable  the  car  to 
pass  without  causing  Injury.  The  case  is 
ruled  by  Fritz  v.  Railway  Ca,  105  Mich.  50, 

62  N.  W.  1007.  As  we  said  in  that  case:  "So 
long  as  the  plaintiflC  was  traveling  In  the 
same  direction,  and  at  such  a  gait  as  would 
not  result  in  collision,  it  cannot  be  said  that 
the  motorman  had  any  occasion  to  sound  the 
gong,  as  he  wpuld  have  no  reason  to  appre- 
hend that  the  plaintiff  would  come  to  a  stop 
or  make  a  short  turn  across  the  track." 

The  judgment  is  affirmed. 


ALLEN  V.  MASER  et  al. 
(Supreme   Court  of  Michigan.     July  6,   1909.) 

Appeai,  and  Ersob  (S  iocs*)— Findings  by 

Court. 

Whether  a  deed  under  which  complainant 
claims  was  actually  made  and  doliverrd  to  him 
was  a  question  of  fact  for  the  trial  court. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  {  1008.*] 

Appeal  from  Circuit  Court,  Ingham  Coun- 
ty, in  Chancery;    Howard  Wlest,  Judge. 

Action  by  Frederick  D.  Allen  against  John 
J.  Maser  and  others.  Judgment  for  defend- 
ants, and  plaintiff  appe.als.     Affirmed. 

Arprued  before  GRANT,  MONTGOMERY. 
OSTUANDKR,  HOOKER,  and  MOORE,  JJ. 

Jason  E.  Nichols,  for  appellant  Charles 
F.  Hammond,  for  appellees, 

MOORE,  J.  The  complainant  is  a  nephew 
of  William  S.  Allen,  who  died  in  April,  1005, 
leaving  no  children.  It  Is  the  claim  of  com- 
plainant that  his  uncle  deeded  certain  real 
estate  In  Lansing  to  him,  which  the  defend- 
ant claims  as  owner  through  a  deed  from 
William  S.  Allen.  The  bill  of  complaint  in 
this  case  is  filed  to  have  the  property  decreed 
to  belong  to  complainant,  or.  If  that  cannot 


be  done,  that  It  be  found  to  belong  to  the  es- 
tate of  the  said  William  S.  Allen.  The  case 
was  heard  In  open  court,  and  the  bill  of 
complaint  was  dismissed  because  the  trial 
judge  was  of  the  opinion  that  complainant 
failed  to  show  the  making  and  delivei7  of  a 
deed  to  himself,  and  that  defendant  had  es- 
tablished in  himself  the  title  to  the  land  in 
controversy. 

The  record  is  quite  long.  The  case  has 
been  argued  fully  in  the  briefs  and  orally. 
The  question  involved  Is  purely  one  of  fact. 
It  would  profit  no  one  to  recite  in  this  opin- 
ion the  evidence.  A  careful  consideration 
of  it  satisfies  us  that  the  decree  made  in  the 
court  below  was  the  proper  one  to  make. 

It  is  affirmed,  with  costs. 


LAWRENCE  ▼.  VINKEMULDER. 

(Supreme  Court  of  Michigan.     July  6,  1909.) 

Vendob  and  Ptjbchaseb  (J  343*)— Sale  or 
HouESTEAD — Failure  of  Wife  to  Sion — 
Action  fob  Damages.    \ 

A  vendee  in  a  land  contract,  not  signed 
by  the  vendor's  wife,  for  the  purchase  and  sale 
or  a  house  and  lot,  valued  at  from  $8,000  to 
$9,000,  constituting  their  homestead,  may  not 
maintain  an  action  at  law  for  damages  against 
the  vendor  for  failure  to  carry  out  bis  contract. 
(Affirmed  by  divided  court.) 

[Ed.  Note. — For  other  cases,  see  Vendor  and 
Purchaser,  Dec.  Dig.  f  343.*] 

Error  to  Circuit  Court,  Kent  County;  Wil- 
lis B.  Perkins,  Judge. 

Action  by  Wilbur  B.  Lawrence  against 
Henry  J.  Vinkemulder,  for  damages  for 
breach  of  a  land  contract.  From  a  judgment 
for  defendant,  plaintiff  brings  error.  Af- 
firmed. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

McKnIght  &  McAllister,  for  appellant. 
Smedley  &  Corwln,  for  appellee. 

McALVAY,  J.  Plaintiff  brought  suit 
against  defendant  to  recover  damages  aris- 
ing on  account  of  defendant's  failure  to  per- 
form an  agreement  in  writing  to  sell  and 
convey  to  him  a  certain  house  and  lot  situ- 
ated In  the  city  of  Grand  Rapids.  The  facts 
in  the  case  are  not  in  dispute.  The  value 
of  the  property  appears  to  be  from  $8,000  to 
?0,(KK).  The  price  plaintiff  agreed  to  pay  was 
!?7,500.  He  has  performed  in  all  respects  on 
his  part,  and  made  tender  of  the  final  pay- 
ment. Defendant  agreed  upon  performance 
by  plaintiff  to  surrender  possession  and  con- 
vey the  premises  to  him  by  a  good  and  suffi- 
cient conveyance  in  fee  simple,  free  and 
clear  from  all  Hens  and  incumbrances.  This 
he  refused  to  do,  on  the  ground  that  the 
premises  were  his  homestead,  and  the  con- 
tract was  not  signed  by  his  wife,  and  that 
she  refused  to  join  In  a  deed.  That  this  was 
his  homi'stond  is  not  disputed,  and  there  is 


•For  other  cases  see  same  topic  and  seclion  NUMBER  in  Dec.  &  Am.  Digs.  1907  to  date,  &  Rcportor  Indexes 


Digitized  by  VjOOQ  l€ 


Micb.) 


LAWRENCE  v.  VINKEMULDEtt. 


89 


no  claim  that  tbe  contract  was  entered  Into 
tbrougb  fraud.  At  the  trial,  after  the  proofs 
were  closed,  defendant  requested  the  court 
to  instruct  a  verdict  in  his  favor.  This  mo- 
tion was  granted;  the  court  holding  that 
plaintiff  could  not  recover  damages  on  ac- 
count of  failure  and  refusal  to  perform  this 
contract  on  the  part  of  defendant  Plaintiff 
has  assigned  error  ni>on  such  action  of  tbe 
court,  and  asks  us  to  reverse  the  judgment 
entered  upon  such  instructed  verdict 

It  is  agreed  that  the  case>  presents  but  one 
question.  Can  damages  in  an  action  at  law 
be  recovered  against  one  who  has  agreed  in 
writing  to  sell  and  convey  certain  real  estate 
by  warranty  deed,  at  a  future  time,  for  his 
refusal  to  perform  on  the  groimd  that  the 
property  was  his  homestead,  and  that  tbe 
agreement  was  not  signed  by  bis  wife?  The 
defense  relies  upon  the  prohibition  of  section 
2,  i  16,  of  our  state  Constitution,  and  tbe 
decisions  of  this  court  which  it  is  claimed 
hold  that  sucb  an  agreement  Is  absolutely 
void  for  all  purposes.  Tbe  constitutional 
provision  is  as  follows:  "Every  homestead 
of  not  exceeding  forty  acres  of  land  •  •  • 
or  Instead  thereof,  at  the  option  of  the  own- 
er, any  lot  in  any  city,  village  or  recorded 
town  plat  or  sucb  part  of  lots  as  shall  be 
equal  thereto,  and  the  dwelling  house  there- 
on and  its  appurtenances,  both  owned  and 
occupied  by  any  residents  of  the  state,  not 
exceeding  in  value  fifteen  hundred  dollars, 
shall  be  exempt.  *  •  *  Such  exemptions 
shall  not  extend  to  any  mortgage  thereon, 
lawfully  obtained,  but  such  mortgage,  or 
other  alienation  of  such  land  by  tbe  owner 
thereof,  if  a  married  man,  shall  not  be  valid 
without  the  signature  of  the  wife  to  the 
same." 

'  An  examination  of  the  case  of  Dlkeman 
V.  Arnold,  78  Mich.  455,  44  N.  W.  407,  shows 
that  the  question  has  been  once  before  con- 
sidered by  this  court  That  case  was  twice 
before  the  court  It  is  first  reported  in  71 
Mich.  (556,  40  N.  W.  42.  This  action  at  law 
was  brought  to  recover  damages  for  a  re- 
fusal to  convey  lands,  including  a  homestead, 
under  a  written  agreement  not  signed  by  the 
w^ife.  From  .the  original  record  in  the  case, 
reported  In  78  Mich.  455,  44  N.  W.  407,  it 
appears  that  the  defense  was  the  same  as 
in  the  case  at  bar.  In  that  case  other  lands 
were  included  in  the  agreement  The  par- 
ties agreed  to  make  an  exchange  of  proper- 
ties on  certain  terms.  The  principal  disput- 
ed question  of  fact  was  whether  defendant 
bad  received  and  accepted  a  certain  deed 
of  premises  which  plaintiff  Dlkeman  agreed 
to  furnish  as  part  of  the  transaction.  If 
this  deed  had  been  delivered  and  excepted, 
then  the  question  whether  the  contract  on 
Arnold's  part  was  a  valid  one  was  the  ques- 
tion of  vital  Importance.  Claiming  that  this 
contract  was  void,  defendant  assigned  error 
upon  the  following  portion  of  the  charge  of 
the  court :  "The  contract  offered  in  evidence 
by  which  It  Is  claimed  that  the  defendant 


agreed  to  convey  his  property  to  tbe  plain- 
tiff was  perfectly  valid,  without  the  signa- 
ture of  his  wife."  Also  to  this:  "It  is  not 
the  duty  of  the  plaintiffs  to  obtain  the  con- 
sent of  Mrs.  Arnold  to  the  contract  in  ques- 
tion. If  the  defendant  accepted  the  deed, 
and  made  this  contract,  not  knowing  wheth- 
er bis  wife  would  sign  or  not,  he  was  bound 
by  such  acceptance."  This  was  argued  at 
length  in  defendant's  brief,  in  which  it  was 
stated :  "The  theory  of  the  plaintiffs  is  that 
this  contract  was  valid  and  binding  on  Ar- 
nold, and  that  he  failed  to  perform  it  and 
that  they  are  therefore  entitled  to  recover 
for  such  breach,  eveu  though  Mrs.  Arnold 
did  not  sign  it."  The  court  was  requested 
to  direct  a  verdict  for  defendant  upon  this 
ground.  In  the  opinion  (when  tbe  case  was 
last  before  the  court)  It  was  said :  "The  de- 
fendant requested  the  court  to  instruct  tbe 
Jury  that  this  suit  was  to  recover  the  pur- 
chase price  of  the  land,  and  not  for  damages 
for  not  deeding,  and  that  tbe  fact  that  Ar- 
nold had  made  the  written  contract  and  re- 
fused to  carry  it  out  would  not  sustain  the 
action.  This  was  not  given  as  requested. 
•  •  •  We  think  the  court  committed  no 
error  in  this  regard.  He  fairly  put  the  is- 
sue to  the  Jury  as  to  whether  or  not  the 
plaintiff's  deed  was  delivered  to,  and  accept- 
ed by,  defendant  on  tbe  16th  of  June.  If  the 
Jury  found  that  it  was  not  accepted,  the 
case  was  ended,  and  the  contract  cut  no  fig- 
ure in  it  It  they  found  the  deed  was  ac- 
cepted, then  the  fact  that  Arnold  bad  made 
this  contract  and  refused  to  carry  it  out  was 
material  and  important  in  tbe  case."  The 
opinion  then  discusses  the  question  of  dam- 
ages, and  refers  to  the  amendment  of  the 
declaration  to  conform  with  the  ruling  of 
the  trial  court  on  the  first  trial  according 
to  defendant's  theory  of  damages.  Then  the 
court  proceeds:  "It  is  now  strenuously  insist- 
ed that  the  plaintiffs  cannot  recover  In  this 
action  as  now  entered  as  to  damages,  be- 
cause the  contracts  of  the  11th  and  16th  of 
June  are  absolutely  void,  for  tbe  reason  that 
part  of  tbe  premises  mentioned  in  said  con- 
tracts is  the  homestead,  and  that  tbe  same 
could  not  be  deeded  or  contracted  without 
the  signature  of  Mrs.  Arnold."  The  court 
then  discussed  further  as  to  damases,  and 
the  rule  In  Plerson  v.  Spaulding,  01  Mich. 
90,  27  N.  W.  863,  applied  to  the  case  on  Its 
first  hearing,  was  adhered  to.  Coming  back 
to  defendant's  claim  that  the  contracts  were 
absolutely  void,  the  court  said  that  Arnold's 
contracts  could  not  be  considered  absolutely 
void ;  that  they  must  be  held  good  to  the  ex- 
tent of  lands  not  embraced  in  the  homestead 
(citing  Michigan  cases),  and  then  proceeding: 
"In  Phillips  V.  Stanch,  20  Mich.  SCO,  where 
a  specific  performance  was  denied  In  a  case 
where  a  portion  of  the  premises  was  a  home- 
stead, and  the  wife  did  not  join  in  the  bond 
for  a  deetl  given  by  the  husband,  the  bill 
was  dlsml.ssed  without  prejudice  to  any  pro- 
ceedings at  law  which  the  complainant  might 


Digitized  by 


L-oogle 


DO 


122  NORTHWESTERN  REPORtKE. 


(liUcb. 


'be  advised  to  Institute  upon  the  bond  for  a 
deed  mentioned  In  the  pleadings.'  See  pages 
381,  384.  This,  in  view  of  the  reasoning  of 
the  opinion  In  the  case,  is  an  intimation  that 
the  complainant  could  sue  upon  the  bond 
at  law  for  damages.  We  think  the  contract 
was  good  as  between  Arnold  and  the  plain- 
tiff. He  knew  when  he  made  It  that  he  could 
not  perform  it  without  the  signature  of  his 
wife  to  the  deed.  He,  in  effect,  bound  him- 
self to  procure  such  slgrnature.  It  in  no  wise 
differs  In  this  respect  from  a  contract  to  sell 
lands  which  one  does  not  own  at  the  time  he 
makes  such  contract.  The  fact  that  one  did 
not  have  the  legal  title  at  the  time  he  made 
the  contract,  and  could  not  procure  it  after- 
wards, has  never  been  regarded  as  a  legal 
defense  to  an  action  for  a  breach  of  the  con- 
tract The  rule  of  damages  was  the  prop- 
<fT  one  under  the  declaration  in  this  case  and 
the  theory  of  the  plaintiff."  Considerable 
time  has  been  devoted  to  the  consideration 
of  the  above  case  because  of  the  claim  that 
the  question  In  the  case  at  bar  has  never 
been  before  the  court. 

Not  only  in  Phillips  v.  Stanch,  referred 
to  in  the  above  opinion,  but  also  in  Hall 
v.  Loomls,  63  Mich.  711,  80  N.  W.  874,  was 
the  bill  of  complaint  dismissed  without  prej- 
udice to  proceedings  at  law.  In  both  cases 
the  bills  were  filed  to  enforce  specific  per- 
formance of  the  contracts.  It  is  well  settled 
In  this  state  that  such  contracts  will  not 
be  specifically  enforced.  The  numerous 
Michigan  cases  cited  and  relied  upon  by 
defendant  are  all  cases  brought  to  enforce 
specific  performance.  As  there  is  no  dispute 
as  to  what  question  of  law  was  involved  In 
those  cases,  it  will  be  unnecessary  to  give 
the  citations.  The  statements  of  the  court 
In  these  cases  that  such  contracts  were 
"wholly  invalid,"  "a  nullity,"  "absolutely 
void,"  etc.,  must  be  considered  as  made  with 
reference  to  the  question  Involved,  and,  when 
applied  to  the  question  now  under  discussion, 
or  any  other  questions,  are  mere  dicta. 

In  the  case  at  bar  no  divestiture  of  title  to 
a  homestead  is  sought  by  enforcement  in 
chancery  or  otherwise.  The  prohibition  of 
the  Constitution  does  not  make  the  sale  of 
a  homestead  by  both  husband  and  wife  In- 
valid, nor  an  agreement  signed  by  both  to 
sell  the  same.  Nor  is  a  husband  or  wife  pro- 
hibited from  soliciting  the  other  to  sell.  If 
he  makes  an  agreement  to  sell  and  convey 
In  the  future,  and  is  unable  to  perform,  the 
law  protects  the  wife  and  family  in  the 
homestead,  but  in  Dikeman  v.  Arnold  this 
aoxiTt  has  held  that  an  action  for  damages 
sustained  will  lie  against  the  husband  for 
breach  of  bis  contract  In  Iowa,  Minnesota, 
Kansas,  Nebraska,  and  North  Dakota  a  con- 
trary rule  prevails  The  Texas  courts  are  in 
harmony  with  Michigan.  Dikeman  v.  Arnold, 
supra,  has  never  been  overruled  by  this  court. 
It  Is  therefore  controlling  in  this  case.  The 
circuit  court  was  in  error  In  Instructing  a 
verdict  for  defendant 


The  Judgment  should  be  reversed,  and  a 
new  trial  ordered. 

GRANT,  MONTGOMERY,  and  BROOKE, 
JJ.,  concur. 

BLAIR,  C  J.  This  case  presents  the  single 
question  whether  the  vendee  in  a  land  con- 
tract not  signed  by  the  vendor's  wife,  for 
the  purchase  and  sale  of  a  house  and  lot, 
valued  at  from  18,000  to  $9,000,  constituting 
their  homestead,  may  maintain  an  action  at 
law  for  damages  against  the  vendor  for  fail- 
ure to  carry  out  his  contract  This  court  has 
uniformly  held  that  a  contract  to  convey  the 
homestead  Is  not  merely  voidable,  but  void. 
Phillips  V.  Stanch,  20  Mich.  8U9;  Hall  t. 
Loomls,  63  Mich.  709,  30  N.  W.  874 ;  Eugle 
V.  White,  104  Mich.  15,  62  N.  W.  154 ;  Gads- 
by  V.  Monroe,  115  Mich.  282,  73  N.  W.  3«7 ; 
Rogers  V.  Day,  116  Mich,  mi,  74  N.  W.  190, 
69  Am.  St.  Rep.  693;  Webster  v.  Warner, 
119  Mich.  461,  78  N.  W.  552 ;  Stem  v.  Wing, 
135  Mich.  831,  97  N.  W.  791;  Lett  v.  Lott, 
146  Mich.  680,  109  N.  W.  1126,  8  L.  R.  A. 
(N.  S.)  748.  It  being  settled  that  a  contract 
to  sell  and  convey  the  homestead,  signed 
by  the  husband  only,  is  a  mere  nullity,  it 
logically  follows  that  no  rights  whatever  can 
be  predicated  upon  it  Ex  nlhilo  nihil.  To 
this  effect  is  the  overwhelming  weight  of  au- 
thority. 15  Am.  &  Eng.  Ency.  of  Law,  070; 
Lichty  V.  Beale,  75  Neb.  770,  100  N.  W.  1018; 
Weltzner  v.  Thingstad,  65  Minn.  244,  56  N. 
W.  817 ;  Bamett  v.  Mendenhall,  42  Iowa,  296 ; 
Cowgell  V.  Warrington,  66  Iowa,  666,  24  N. 
W.  266;  Thlmes  v.  Stumpff,  83  Kan.  53,  5 
Pac.  431;  Hodges  v.  Famham,  49  Kan.  777, 
31  Pac.  606;  Sllander  v.  Gronna,  15  N.  D. 
552,  108  N.  W.  644;  Mundy  v.  Shellaberger 
(0.  C.)  163  Fed.  219. 

The  case  of  Dikeman  v.  Arnold,  78  Mich. 
456,  44  N.  W.  407,  is  not  inconsistent  with 
this  conclusion.  That  case  differs  from  this 
in  that  the  contract  covered  lands  not  em- 
braced within  the  homestead.  Mr.  Justice 
Morse,  in  the  course  of  the  opinion,  said: 
"But  the  contract  was  not  void  as  far  as  the 
land  was  concerned  not  embraced  within  the 
homestead;  and,  If  he  had  deeded  in  con- 
formity with  it,  such  deed  would  have  con- 
veyed his  title  to  the  excess  over  and  above 
the  homestead.  Stevenson  v.  Jackson,  40 
Mich.  702 ;  Dye  v.  Mann,  10  Mich.  291 ;  Wal- 
lace V.  Harris,  32  Mich.  380;  Shoemaker  ▼. 
Collins,  49  Mich.  605,  597,  14  N.  W.  5o9.  In 
Phillips  V.  Stanch,  20  Mich.  3C9,  where  a  spe- 
cific performance  was  denied  in  a  case  where 
a  portion  of  the  premises  was  a  homestead, 
and  the  wife  did  not  Join  in  the  bond  for  a 
deed  given  by  the  husband,  the  bill  was  dis- 
missed without  prejudice  to  any  proceeding 
at  law  which  the  complainant  might  'be  ad- 
vised to  institute  upon  the  bond  for  a  deed 
mentioned  in  the  pleadings.'  See  pages  381, 
384.  This,  in  view  of  the  reasoning  of  the 
opinion  in  the  case,  is  an  intimation  that  the 
complainant  could  sue  upon  the  bond  at  law 


Digitized  by  VjOOQ  IC 


MldL) 


BANNEY  REFRIGERATOR  CO.  t.  SMITH. 


91 


for  damageiu  We  tblnk  the  contract  was 
good  between  Arnold  and  the  plaintiffs.  He 
knew  when  he  made  It  that  he  could  not  per- 
form It  without  the  signature  of  his  wife  to 
the  deed.  He,  In  effect,  bound  himself  to 
procure  such  signature.  It  in  nowise  differs 
In  this  respect  from  a  contract  to  sell  lands 
which  one  does  not  own  at  the  time  he  makes 
snch  contract  The  fact  that  one  did  not 
bave  the  legal  title  at  the  time  he  made  the 
contract,  and  could  not  procure  it  afterwards, 
has  never  been  recognized  aa  a  legal  defmse 
to  an  action  for  breach  of  the  contract" 
Clearly,  what  was  meant  in  saying  that  "the 
contract  was  good  between  Arnold  and  the 
plaintiffs"  was  that  it  was  good,  as  to  the  ex- 
cess. Just  as  It  had  been  said  that  a  deed 
"wonld  hare  conveyed  bis  title  to  the  excess 
over  and  above  the  homestead."  See  Sam- 
mon  V.  Wood.  107  Mich.  506,  65  N.  W.  529. 
This  la  DO  different  than  the  rule  which  pre- 
vails In  equity  in  this  state.  Engle  T.  White, 
nipra ;  Lott  v.  Lott,  supra. 
The  Judgment  la  affirmed. 

OSTRANDER,    HOOKER,    and    MOORB, 
JJ..  concur. 


RANNET  REFRIGERATOR  CO.  T. 

SMITH  et  aL 

(Sapieme  Court  of  Michigan.     July  6,  1909.) 

1.  Drains  (|  26*)— Petitiow— JnRi.sDicnoN. 

Where  nnder  the  drainage  act,  the  petition 
is  in  due  form,  the  commissioners  have  Juris- 
diction regardless  of  subsequent  irregularities. 
[Ed.  Note.— For  other  cases,  see  Diains,  Cent 
D«.  J  18;   Dec.  Dig.  !  26.*] 

2.  Drains  f|  28*)— PErrriow— Description. 

A  petition  to  establish  a  drain  is  sufficient 
as  to  description  if  it  gives  a  general  descrip- 
tion of  the  beginning,  the  roote,  and  the  ter- 
minns  of  tlie  diain. 

TEd.  Note. — For  other  cases,  see  Drains,  Cent 
Dig.  I  21 ;   Dec.  Dig.  {  2&*] 

3.  Drains  (i  26*)— OoiniissioNERa— Order  ot 
DETEBinNATioN— Delay. 

Where  a  petition  for  the  establishment  of 
a  drain  is  filed  with  a  drain  commissioner  on 
July  24,  1903,  and  this  commissioner  is  suc- 
ceeded in  office  on  January  1,  1904,  by  another 
commissioner,  to  whom  the  petition  comes  with 
other  official  papers  at  that  time,  a  delay  of  such 
latter  commissioner  in  not  making  the  first  or- 
der of  determination  until  September  9,  1904, 
doe*  not  affect  the  jurisdiction  of  the  proceeding. 
[Ed.  Note. — For  other  cases,  see  Drains,  Cent. 
D»J  18;  Dec.  Dig.  |  26.*] 

4.  Drains  (»  76*)- Right  of  Wat— Beneftm. 

Under  the  drainage  act,  the  proceedings  to 
acquire  the  right  of  way  and  those  to  appor- 
tion l)enefit8  are  separate  and  distinct. 

[Ed.  Note.— For  other  cases,  see  Drains,  Dec. 
dW.  (  76.*] 

5.  Drains    (I    74*)— Release    of   Right   of 
Wat— Vauditt— Necessity  of  Review. 

A  corporation  releasing  its  right  of  way. 
contrary  to  its  by-laws,  for  the  construction  of 
a  drain,  may  not  object  after  the  final  order 
of  determination  has  been  made  by  the  drain 
commissioner  that  no  ateessment  for  benefits 
should  be  made  against  it  because  the  release 


Is  void,  as  it  should  have  reviewed  the  proceed- 
ings before  the  final  determination. 

[Ed.  Note.— For  other  cases,  see  Drains,  Cent 
Dig.  i  82;   Dec.  Dig.  J  74.*]       . 

6.  Drains  ($  26*)- Proof  of  Notic»— Appor- 
tionment. 

In  drainage  proceedings,  the  .making  of  the 
apportionment  before  proof  was  filed  of  notice 
of  the  time  and  place  appointed  by  the  commis- 
sioners for  apportionment  and  review  is  an  ir- 
regularity not  fatal  to  the  proceedings,  where 
proper  notice  is  actually  given. 

[Ed.  Note.— For  other  cases,  see  Drains,  Cent 
Dig.  {18;  Dec.  Dig.  |  26.*] 

7.  Drains  (|  85*)— Spbbadino  Tax— Posititz 
Recobo. 

Though  a  drainage  tax  is  spread  before  the 
record  has  been  deoosited  with  the  county  clerk, 
contranr  to  the  provisions  of  Comp.  Laws  1897,  § 
4314,  there  can  oe  no  recovery  of  the  tax,  though 
paid  under  protest  as  the  statute  would  be  con- 
sidered directory,  and  not  to  a  Sect  the  validity 
of  the  apportionment,  especially  where  the  req- 
uisite papers  are  afterwards  filed. 

[Ed.  Note.— For  other  cases,  see  Drains,  Dec. 
Dig.  I  85.*] 

8.  Dra:ins  (I  85*)— Excessive  Tax. 

Where  a  drainage  tax,  as  spread.  Is  less 
than  the  law  permits  the  commissiioner  to  im- 
pose, a  taxpayer  cannot  recover  such  tax  paid 
under  a  protest  on  the  gronnd  that  the  tax  is 
excessive. 

[Ed.  Note.— For  other  cases,  see  Drains,  Dec. 
Dig.  I  85.*] 

Error  to  Circuit  Court  Bay  County ;  Ches- 
ter L.  Collins,  Judge. 

Action  by  the  Ranney  Refrigerator  Com- 
pany against  Jacob  Smith  and  another  to  re- 
cover back  a  drainage  tax.  From  a  Judg- 
ment for  defendants,  plaintiff  brings  error. 
AfiSrmed. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
HOOKER,  MOORE,  and  McALVAY,  JJ. 

O.  L.  &  C.  B.  Harden  and  Oeorce  E.  Nich- 
ols, for  appellant  Campbell  &  Foster,  for 
appellees. 


HOOKER,  J?  The  plaintiff,  a  corporation, 
has  brought  this  action  against  a  township 
treasurer  and  a  drain  commissioner  to  re- 
cover certain  drain  taxes  paid  under  pro- 
test It  Is  brought  under  the  provisions  of 
Comp.  Laws,  i  4359,  which  provides:  "All 
drain  taxes  assessed  under  the  provisions  of 
this  act  shall  be  subject  to  the  same  interest 
and  charges,  and  shall  be  collected  In  the 
same  manner  as  state  and  other  general  tax- 
es are  collected,  and  collecting  officers  are 
hereby  vested  with  the  same  power  and  au- 
thority In  the  collection  of  such  taxes  as 
are  or  may  be  conferred  by  law  for  collect- 
ing general  taxes.  In  all  cases  where  suit 
Is  brought  against  the  collector  arising  out 
of  the  collection  of  any  drain  tax,  the  county 
shall  defend  such  officer  in  the  same  manner 
that  he  has  now  the  right  to  be  defended  In 
the  collection  of  general  taxes.  No  suit  shall  be 
Instituted  to  recover  any  drain  tax  or  money 
paid  or  property  sold  therefor,  or  for  damages 
on  account  thereof,  unless  brought  within  thlr- 


•For  other  eases  sea  sams  topic  and  section  NUMBER  la  Dae  ft  Am.  Oixs.  1907  to  data,  *  Raportar  Indazss 


Digitized  by  VjOOQ  l€ 


92 


122  NORTHWSSXBBN  BEPORTER. 


(Midi. 


ty  da^  from  the  time  of  payment  of  tmch  mon- 
ey  to,  or  sale  of  such  property  by,  the  collect- 
ing officer ;  and  If  such  tax  shall  be  paid  un- 
der protest  the*reasons  therefor  shall  be  spec- 
ified, and  the  same  procedure  observed  as  is 
or  may  be  required  by  the  general  tax  law.  All 
taxes  levied  under  the  provisions  of  this 
act,  or  of  act  number  two  hundred  and  sixty- 
nine  of  the  session  laws  of  eighteen  hundred 
and  eighty-one,  with  all  lawful  costs,  inter- 
est and  charges,  shall  be  and  remain  a  per- 
petual Hen  upon  the  lands  upon  which  they 
are  assessed  and  a  personal  claim  against 
the  owner  or  owners  of  such  lands  until  they 
are  paid."  FlalntifF  claims  that  the  tax  was 
void  for  two  reasons,  viz:  (1)  There  was 
no  jurisdiction  to  levy  or  spread  said  tax. 
(2)  The  tax  was  void  because  excessive.  The 
drain  has  been  constructed  and,  we  under- 
stand, mostly  paid  for. 

The  alleged  want  of  Jurisdiction  Involves 
the  following  questions:  (1)  The  sufficiency 
of  the  petition.  (2)  The  lapse  of  nearly  a 
year  between  the  time  of  filing  the  petition 
for  the  drain  and  the  first  order  of  deter- 
mination. (3)  The  failure  to  lawfully  ac- 
quire a  right  of  way  across  plalntifTs  land. 
(4)  The  failure  to  file  or  make  proof  of  pub- 
lication or  posting  of  notice  before  the  letting 
and  review  of  the  assessment.  (5)  The  fail- 
ure to  file  the  proceedings  in  the  county 
clerk's  office  before  the  taxes  were  spread. 

Jurisdiction  of  Commissioner. 

A  petition  In  due  form  confers  Jurisdiction 
on  the  drain  commissioner,  regardless  of  sub- 
sequent irregularities.  Hall  v.  Slaybaugh,  69 
Mich.  484,  37  N.  W.  54o ;  Lannlng  v.  Palmer, 
117  Mich.  529,  76  N.  W.  2 ;  Selbert  v.  Lovell, 
92  Iowa,  507,  61  N.  W.  197;  14  Cyc.  1029, 
1030;  10  Cur.  Law,  1G35 ;  Ilinkley  v.  Bisliopp, 
152  Mich.  250,  114  N.  W.  670 ;  10  Cur.  Law, 
1C35. 

Description. 

It  is  contended  that  the  petition  was  void 
by  reason  of  the  vagueness  of  the  description 
of  Its  course,  viz.,  "thence  In  a  southwester- 
ly course  about  CO  rods."  This  language  pre- 
cedes the  following:  "Thence  west  to  the 
Cedar  Creek."  This  description  was  suffi- 
cient under  the  rule  of  Hinkley  v.  Blsht)pp. 
supra.  It  "gave  a  general  dLscription  of  the 
boglunini;.  the  route  and  the  terminus  of 
the  proposed  drain." 

Delay. 

The  petition  for  the  drain  was  filed  with 
C.  W.  Van  Valkenbert,  then  drain  commis- 
sioner of  Gladwin  county,  on  July  27,  1003. 
He  was  succeeded  in  ollico  on  January  1, 
1904,  by  Snell,  to  whom  the  petition  came 
with  other  oflldal  papers  at  that  time.  Snell 
made  the  first  order  of  determination  on 
September  9,  1904.  Appellant's  brief  states 
that  "no  explanation  of  tills  delay  is  shown." 
This  action  is  within  the  rule  of  Davison  v. 
Otis,  24  Mich,  23.    We  are  satisfled  that  the 


commissioner  had  Jurisdiction  to  proceed  to 
lay  out  the  drain. 

Right  of  Way. 

It  is  contended  that  the  commissioner  lost 
Jurisdiction  by  reason  of  the  alleged  failure 
to  obtain  a  legal  release  of  the  right  of  way. 
The  plaintitr  Is  a  corporation  owning  a  par- 
cel of  land  traversed  by  the  drain.  The  first 
order  of  determination  was  made  on  Sep- 
tember 9,  1904,  after  a  survey.  The  commis- 
sioner proceeded  to  get  releases  of  the  right 
of  way,  among  them  one  upon  plaintiff's  land, 
signed  and  acknowledged  by  plaintiff's  presi- 
dent and  secretary,  and  under  the  seal  of 
the  corporation.  It  Is  contended  that  this  re- 
lease was  void,  for  the  reason  that  the  board 
of  directors  had  not  authorized  It  in  the 
way  provided  by  plaintiff's  by-laws,  viz. :  "No 
real  estate  shall  be  conveyed,  mortgaged,  or 
leased  except  by  resolution  of  the  board  of 
directors  passed  at  a  meeting  of  said  board, 
and  duly  recorded  in  the  records  of  said 
company."  On  July  28,  1905,  the  commis- 
sioner made  his  final  order  of  determination. 
It  stated  that  aU  damages  by  reason  of  the 
construction  had  been  released  by  all  the 
owners  of  land  traversed  by  the  drain.  A 
notice  of  letting  followed,  the  plaintiff  being 
served  with  the  notice.  As  was  said  in 
Hinkley  v.  Bishopp:  "No  person  owning 
land  traversed  by  the  drain  undertook  to 
review  the  proceedings  by  certiorari  (see 
And.  Gen.  v.  Crane,  152  Mich.  94,  115  N.  W. 
1041),  and  no  such  person  asks  relief  from 
the  appropriation  of  the  land  for  the  drain. 
We  may  add  that  this  plaintiff  did  not  at- 
tempt to  prevent  or  stop  the  construction 
of  the  drain,  of  which  it  must  have  been  In- 
formed. No;  It  attempts  to  escape  its  propor- 
tion of  the  cost  by  this  action.  Were  It  some 
other  person  whose  land  had  been  irregularly 
appropriated,  this  plaintiff  could  not  make 
such  irregularity  the  basts  of  this  action. 
The  proceedings  to  acquire  the  right  of  way. 
and  these  to  apportion  benefits  are  separate 
and  distinct.  See  Hinkley  v.  Bishopp,  mi- 
pra;  Hoffman  v.  Shell,  151  Mich.  009.  115  N. 
W.  979.  Were  this  a  proceeding  to  overturn 
the  condemnation  of  plaintiff's  land,  plain- 
tiff's right  to  relief  would  be  doubtful  under 
And.  Gen.  v.  Crane,  152  Mich.  91,  115  N.  W. 
1011.  But  It  is  not,  and  we  need  only  say 
that  we  are  concerned  only  with  the  ques- 
tions relating  to  the  apportionment  and  as- 
sessment of  benefits. 

Levy  and  Spreading  of  Tax. 

These  alleged  defects  are :  (1)  The  making 
of  the  apportionment  before  proof  of  service 
of  notice  was  made.  (2)  The  spreading  of 
the  tax  before  the  filing  of  the  papers  In  the 
proceeding  with  the  county  clerk.  (3)  An 
excessive  amendment  These  proceedings 
are,  at  most.  Irregularities. 

Proof  of  Notice  Before  Apportionment 

The  record  shows  the  service,  posting,  and 
publication  of  the  notice  of  the  time  aud 


Digitized  by  VjOOQ  l€ 


MldL) 


TREAT  V.  DETROIT  UNITED  RY. 


93 


idace  appointed  by  tbe  commlsrioner  tor  ap- 
portionment and  review.  Proof  thereof  was 
not  made  at  nor  previous  to  the  review.  That 
was  not  fatal  to  the  proceedings,  provided 
notice  was  actually  given.  Murphy  v.  Dob- 
ben,  137  Mich.  565.  100  N.  W.  891. 

Spreading  Tax. 

The  tax  was  spread  before  the  record  had 
been  deposited  with  the  county  clerk.  This 
was  contrary  to  the  provisions  of  Comp. 
Laws,  S  4314.  While  we  have  held  that  a 
mandamus  will  not  Issue  to  compel  the 
spreading  of  a  tax  under  such  drcumatances 
(see  Conley  v.  Supervisors,  88  Mich.  245,  50 
N.  W.  140),  we  have  also  held  that.  If  spread, 
such  tax  Is  not  necessarily  recoverable 
though  paid  under  protest  (Matrau  v.  Thomp- 
klns,  99  Mich.  528,  58  N.  W.  472).  We  under- 
stand that  this  was  In  effect  holding  the  pro- 
vision against  spreading  the  tax  to  be  di- 
rectory. The  apportionment  was  not  neces- 
sarily invalid  because  the  tax  was  premature- 
ly spread,  and,  the  requisite  papers  being  aft- 
erward filed,  plaintiff's  claim  Is  technical,  and 
It  shonld  not  be  allowed  to  recover  on  that 
ground.  See  Gratwick  v.  Oscoda,  07  Mich. 
221,  56  N.  W.  600;  Minor  lium.  Co.  v.  Alpena, 
97  Mich.  499,  56  N.  W.  926;  Matrau  v.  Tomp- 
kins, supra.  See,  also,  Comp.  Laws,  §{  4359, 
4304,  4365.  As  the  record  shows  that  the 
tax  as  spread  was  less  than  the  law  permit- 
ted the  commissioner  to  impose,  plaintiff  has 
no  cause  of  complaint  on  this  ground. 

The  Judgment  Is  affirmed. 


TREAT  ▼.  DETROIT  UNITED  RT. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 
Bailboads   (8  82*)— Right  of  Wat— Cove- 

HANTS— FOBFErrURE. 

Where  a  railway  company  in  good  faith 
takes  possession  of  a  right  of  way,  granted  on 
wrtaln  conditions  as  to  construction,  no  time 
of  performance  being  stated,  the  grantor  may 
not  declare  a  forfeiture,  and  recoTer  the  land  in 
ejectment  without  notice  to  the  company  of  the 
particular  breach  of  which  it  is  guilty,  and  with- 
out giving  it  time  to  remedy  the  breach. 

[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent.  Dig.  Sf  213-219;    Dec  Dig.  {  82.*] 

Error  to  Circuit  Court,  Oakland  County; 
George  W.  Smith,  .Judge. 

Ejectment  by  Joseph  A.  Treat  against  the 
Detroit  United  Railway.  From  a  Judgment 
for  plaintiff,  defendant  brings  error.  Re- 
versed, and  new  trial  ordered. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McADVAY,  and  BROOKE,  JJ. 

Brennan,  Donnelly  &  Van  De  Mark  and 
James  H.  Lynch,  for  appellant.  Aaron  Per- 
ry, for  appellee. 


BROOKE,  J.     Plaintiff,  on  June  24,  1900, 
and  for  some  years  prior  thereto,  was  the 


owner  of  certain  lands  situated  on  section 
35  of  the  township  of  Oxford.  On  that  day 
he  entered  into  the  following  agreement 
with  the  Detroit,  Rochester,  Romeo  &  Lake 
Orion  Railway: 

"This  contract,  made  this  twenty-fourth 
day  of  May,  in  the  year  of  our  Lord  one 
thousand  nine  hundred,  between  Joseph  A. 
Treat,  of  Stuart,  state  of  Iowa,  party  of 
the  first  part,  and  the  Detroit,  Rochester, 
Romeo  &  Lake  Orion  Railway,  a  corpora- 
tion, existing  under  the  laws  of  the  state 
of  Michigan,  party  of  the  second  part,  wlt- 
nesseth,  that  said  party  of  the  first  part, 
in  consideration  of  the  sum  of  one  dollar 
to  him  duly  paid,  hereby  agrees  to  sell  unto 
the  said  party  of  the  second  part,  all  that 
certain  piece  or  parcel  of  land  lying  and 
being  situate  In  the  township  of  Oxford, 
county  of  Oakland,  and  state  of  Michigan, 
and  more  particularly  known  and  described 
as  follows: 

"Part  of  the  southwest  quarter  of  the 
southwest  quarter  of  section  thirty-five  (35), 
commencing  at  a  point  on  the  south  bound- 
ary line  of  said  township  sixteen  and  one- 
half  feet  west  from  where  the  fence  on  the 
west  side  of  Lapeer  Road  now  is,  and  run- 
ning thence  northerly  to  a  point  two  feet 
east  from  the  southeast  black  walnut  tree 
now  standing  on  said  forty;  thence  north- 
erly keeping  two  feet  east  along  the  black 
walnut  row  of  trees  now  standing  nearest 
said  road  to  the  north  line  of  said  forty; 
thence  east  along  said  north  line  to  the  road 
fence  aforesaid;  thence  southerly  along 
said  road  fence  to  the  said  south  township 
line;  thence  westerly  along  said  line  to  tbe 
place  of  beginning,  reserving  to  said  first 
party  the  crossings  hereinafter  mentioned, 
for  the  sum  of  one  dollar,  which  the  said 
party  of  the  second  part  hereby  agrees  to 
pay  the  party  of  the  first  part,  as  follows, 
at  this  date.  Said  second  party  shall  build 
and  maintain  a  good  and  sufficient  woven 
wire  fence  fifty-four  Inches  high,  with  cedar 
posts  set  not  to  exceed  one  rod  apart,  along 
the  above-described  west  line,  with  three 
suitable  gates  and  gateways  therein,  one 
large  one  in  front  of  the  south  tenant  house 
where  the  road  or  lane  now  is,  one  small 
gate  in  front  of  the  north  tenant  house,  and 
one  field  gate  further  south,  and  for  en- 
trance to  the  field.  It  shall  also  make  and 
maintain  suitable  crossings  from  said  high- 
way across  said  second  party's  tracks,  of 
plank  or  coarse  gravel  to  and  through  said 
gateways  to  be  filled  In  if  necessary  so  as 
to  make  a  good  drive  and  passenger  way 
and  of  easy  grade  with  a  load;  they,  sec- 
ond party,  shall  construct  sewers  or  bridges 
so  as  not  to  impede  the  flow  of  water  where- 
ever  any  and  all  ditches  or  water  courses 
now  are  or  which  may  be  crossed  by  second 
party's  roadbed. 

"Said  party  of  the  second   part  hereby 


•Tor  other  cuei  lee  lame  topic  and  ■ectlon  NUMBER  la  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


04 


122  NORTHWESTERN  RBPOSTEB. 


^lich. 


agrees  to  do  and  perform  the  same.  And 
to  build  and  operate  a  line  of  railway  across 
said  lands  propelled  bj  electricity  or  other 
motlre  power  than  steam. 

"And  the  said  party  of  the  first  part,  on 
receiving  such  payment,  and  the  fulfilling  of 
all  other  conditions  mentioned  at  the  time 
and  In  the  manner  mentioned,  shall  at  his 
own  proper  cost  and  expense,  execute  and 
deliver  to  the  said  party  of  the  second  part, 
or  to  its  assigns,  a  good  and  sufficient  con- 
veyance In  fee  simple,  of  said  lands,  free 
and  clear  of  and  from  all  Hens  and  incum- 
brances, except  such  as  may  have  accrued 
thereon  subsequent  to  the  date  hereof  by  or 
through  the  acts  or  negligence  of  said  party 
of  the  second  part,  or  Its  assigns,  said  rail- 
way to  be  bniit  and  In  operation  within  six 
months  from  the  date  hereof. 

"It  Is  mutually  agreed  between  said  par- 
ties that  the  said  party  of  the  second  part 
shall  have  possession  of  said  premises  on 
the  delivery  of  these  presents  and  shall  keep 
the  same  until  the  said  terms  shall  be  paid 
and  fulfilled  as  aforesaid;  and  If  said  par- 
ty of  the  second  part  shall  fail  to  perform 
this  contract,  or  any  part  of  the  same,  said 
party  of  the  first  part  shall,  Immediately 
after  sncb  failure,  have  a  right  to  declare 
the  same  void  and  retain  whatever  may 
have  been  paid  on  such  contract,  and  may 
consider  and  treat  the  party  of  the  second 
part  as  his  tenant  holding  over  without  per- 
mission, and  may  take  Immediate  posses- 
sion of  the  premises,  and  remove  the  party 
of  the  second  part  therefrom  and  said  lands 
shall  revert  to  said  first  party. 

"And  It  Is  agreed  that  the  stipulations 
aforesaid  are  to  apply  to  and  bind  the  heirs, 
executors,  administrators  and  assigns  of  the 
respective  parties  hereto." 

The  real  estate  mentioned  In  the  foregoing 
contract  lies  on  the  westerly  side  of  the  high- 
way. The  grantee  entered  Into  possession  of 
the  land  described,  constructed  its  railway, 
and  began  operation  within  the  time  mention- 
ed In  the  contract.  It  also  constructed  a 
fence  along  the  westerly  side  of  the  lands  oc- 
cupied by  It;  crossings  leading  to  the  north 
and  south  tenant  houses  and  a  ditch.  In  Au- 
gust, 1901,  plaintiff  caused  to  be  served  upon 
the  grantee  a  notice  as  follows:  "To  the 
Detroit  United  Railway:  Take  notice.  You 
are  hereby  notified  that  the  contract  dated 
May  24,  A.  D.  1900,  for  a  right  of  way,  made 
between  the  Detroit,  Rochester,  Romeo  &  Lake 
Orion  xiailway  and  myself,  for  the  following 
described  lands,  viz:  Part  of  the  southeast 
quarter  of  the  southwest  quarter  of  section 
thirty-five,  township  of  Oxford,  Oakland  coun- 
ty, and  state  of  Michigan,  commencing  at  a 
point  on  the  south  boundary  line  of  said 
township  sixteen  and  one-half  feet  west  from 
where  the  fence  on  the  west  side  of  the  La- 
peer Road  now  Is,  and  running  thence  north- 
erly to  a  point  two  feet  east  from  the  south- 
east black  walnut  tree  now  standing  on  said 
forty;  thence  northerly  keeping  two  feet  east 


along  the  black  walnut  row  of  trees  standing 
nearest  said  road  to  the  north  line  of  said 
forty;  thence  along  said  north  line  of  said 
forty  to  the  road  fence  aforesaid;  thence 
southerly  along  said  road  fence  to  said  south 
township  line;  thence  west  along  said  line 
to  the  place  of  beginning,  has  not  been  per- 
formed or  fulfilled  by  and  on  the  part  of  said 
Detroit,  Rochester,  Romeo  &  Lake  Orion 
Railway.  Therefore,  I  hereby  declare  said 
contract  void.  And  I  hereby  demand  posses- 
sion of  the  lands  above  described,  and  that 
you  yield  and  surrender  up  quiet  and  peacea- 
ble possession  of  said  lands  pursuant  to  the 
provisions  of  the  statutes  In  such  case  made 
and  provided.  Dated  this  fifth  day  of  Au- 
gust, A.  D.  1901,  at  Orion,  Michigan.  [Signed.] 
Jos.  A.  Treat." 

In  August,  1906,  a  second  notice  was  served 
upon  the  defendant  herein,  which  had  in  the 
meantime  become  the  owner  of  the  property 
of  the  Detroit,  Rochester,  Romeo  &  Lake 
Orion  Railway  Company.  The  second  notice 
was  as  follows:  "Whereas,  On  or  about  the 
24th  day  of  May,  1900,  a  certain  land  contract, 
of  which  the  annexed  Is  substantially  a  true 
copy,  was  executed  and  delivered  by  the  un- 
dersigned, Joseph  A.  Treat,  by  Wm.  E.  Llt- 
tell,  his  agent  in  fact,  and  by  Detroit,  Roches- 
ter, Romeo  &  Lake  Orion  Railway,  a  corpora- 
tion, by  Harry  M.  Lau,  its  attorney,  and  the 
said  corporation  has  refused  and  neglected  to 
perform  each  and  every  one  of  the  terms, 
conditions,  acts,  obligations,  and  things  re- 
quired to  be  done  or  performed  by  it,  under 
and  by  the  terms  of  said  contract,  of  all  of 
which  the  undersigned  has  heretofore  given 
you  and  said  last,  above  named  corporation 
notice,  and  the  said  corporation  having  failed, 
as  aforesaid,  to  perform  said  contract  and 
every  part  thereof,  therefore:  The  under- 
signed, Joseph  A.  Treat,  who  has  heretofore 
declared  the  said  contract  to  be  void,  does 
hereby  again  declare  the  same  to  be  void  and 
he  has  therefore  and  does  now  hereby  give 
you  and  said  corporation  notice  of  all  said 
facts  and  of  his  determination  and  election  to 
declare  said  contract  void:  And  you  are 
hereby  also  notified  and  required  Immediately 
to  quit  and  surrender  up  to  the  undersigned, 
all  the  lands  and  premises  described  in  the 
said  contract;  and  you  have  also  wrongfully 
taken  possession  of  certain  lands  belonging  to 
the  undersigned  and  lying  westerly  of  and 
adjoining  said  above  mentioned  and  described 
lands;  you  are  hereby  further  notified  and 
required  to  immediately  quit  and  surrender 
up  to  the  undersigned  all  the  following  lands 
and  premises,  to  wit:  Part  of  the  southeast 
quarter  pf  the  southwest  quarter  of  section 
thirty-five  and  bounded  as  follows:  On  the 
south  by  the  south  line  of  said  section;  on 
the  north  by  the  north  line  of  the  said  south- 
east quarter  of  the  said  southwest  quarter  of 
section  thirty-five;  on  the  west  by  the  wire 
fence  running  northerly  and  southerly  and 
being  the  first  fence  westerly  from  the  track 
of  the  electric  railway  now  passing  through 


Digitized  by  VjOOQ  l€ 


Micb.) 


STEELE  V.  CULVER 


95 


said  section ;  and  on  the  easterly  Bide  of  the 
westerly  line  of  the  Lapeer  Boad,  so  called, 
where  It  passes  across  said  section  as  it  ex- 
isted on  the  said  24th  day  of  May,  1900,  be- 
ing the  line  of  the  fence  along  the  westerly 
line  of  said  highway,  as  the  same  existed  on 
the  said  last-named  date;  said  parcel  of  land 
being  In  the  township  of  Oxford,  Oakland 
county,  Michigan.  Dated  this  6th  day  of 
Angust.  1906.    [Signed.I   Joseph  A.  Treat." 

Plaintiff  brought  suit  in  ejectment  for  the 
mtire  strip  of  ground  described  In  the  con- 
tract, claiming  the  right  to  forfeit  the  same 
because:  (1)  The  defendant  was  in  posses- 
sion of  more  land  than  was  described  In  the 
contract  (which  is  not  denied);  (2)  that  the 
defendant  had  failed  to  properly  perform  Its 
covenants  In  respect  to  the  construction  of 
the  crossings  and  drains ;  and  (3)  that  in  set- 
ting the  fence  provided  for  In  the  contract  too 
far  wept,  the  defendant  had  mutilated  the 
tops  of  certain  walnut  trees  and  excavated 
abont  the  roots  of  the  same  in  such  a  manner 
as  In  Itself  to  constitute  a  material  ond  in- 
jorions  violation  of  the  contract,  warranting 
its  forfeiture.  Between  August,  1901,  and 
Angast,  1906,  no  negotiations  were  had  be- 
tween the  parties,  nor  did  the  plaintiff  at 
any  time  before  suit  notify  the  defendant,  or 
Its  predecessor,  in  what  particular  it  had 
failed  to  perform  the  contract.  It  will  be 
noticed  that  the  contract  is  silent  as  to  the 
time  within  which  the  fence,  the  drain,  and 
the  crossovers  are  to  be  constructed.  Never- 
theless the  defendant  or  Its  predecessor  in 
title  proceeded  seasonably  to  comply  with  the 
contract  provisions,  presumably  In  good  faith. 
We  are  of  opinion  that,  before  a  forfeiture 
could  be  declared  by  plaintiff,  he  was  bound 
to  give  notice  of  bis  intention  to  claim  a  for- 
feiture, coupled  with  a  notice  to  defendant 
of  the  particular  default  of  defendant  relied 
opon  by  blm.  After  such  notice  the  defend- 
ant should  have  reasonable  time  in  which  to 
comply,  and  thus  avoid  forfeiture.  See  War- 
velle  on  Vendors  (2d  Ed.)  §i  138,  256,  815, 
and  cases  there  dted;  Getty  v.  Peters,  82 
Mich.  661,  46  N.  W.  1036,  10  L.  E.  A.  465. 
It  follows,  therefore,  that  in  the  action  at 
bar  the  plaintiff  should  have  been  limited  In 
his  recovery  to  so  much  of  the  land  occupied 
by  the  defendant  as  is  In  excess  of  the  de- 
scription contained  in  the  contract  The  fact 
that  plaintiff  from  1901  to  1906  gave  no  notice 
to  defendant  of  his  dissatisfaction  with  the 
method  of  performance  used  by  defendant, 
and  pointed  ont  no  particular  in  which  it 
was  Improper,  is  significant  If  after  due 
notice  and  a  reasonable  time  for  compliance 
defendant  neglects  or  refuses  to  remedy  the 
alleged  defects,  the  plaintiff  will  be  in  posi- 
tion to  maintain  his  action. 

Judgment  reversed,  and  a  new  trial  or- 
dered. 


STEELE  et  al.  t.  CTULVER  et  al. 
(Supreme  Court  of  Michigan.    July  6,  1909.) 

1.  EQurrr   (§   219*)  —  Pleading  —  Demurbbb 
Raisino  Collatekal  Questions  of  Fact. 

In  so  far  as  a  demurrer  to  a  bill  attempts 
to  raise  collateral  questions  of  fact  It  is  not 
good  pleading. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent. 
Dig.  I  496 ;   Dec.  Dig.  {  219.*]  • 

2.  JuDOMENT  (I  444*) — Restbaininq  Collec- 
tion— Perjuby. 

Injunction  will  not  be  granted  to  restrain 
collection  of  judgment  on  the  ground  that  it  was 
obtained  by  perjuiy,  notwithstanding  the  bill  al- 
leges an  admission  thereof  by  the  judgment 
plaintiff. 

lEd.  Note.— For  other  cases,  see  Judgment 
Cent  Dig.  {  839;    Dec.  Dig.  {  444.*] 

Appeal  from  Circuit  Court  Van  Buren 
County,  in  Chancery;  L.  Burget  Des  Volgnes, 
Judge. 

Bill  by  Frederick  M.  Steele  and  others 
against  William  Culver  and  others.  From  a 
decree  for  defendants,  complainants  appeal. 
Affirmed. 

Argued  before  MONTGOMERY,  OSTRAN- 
DER.  HOOKER,  MOORE,  and  BROOKE,  J  J. 

Elmest  Dale  Owen  and  Angell,  Boynton, 
Stevens,  McMillan  &  Bodman,  for  appellants. 
T.  J.  Oavanaugh  and  L.  A.  Tabor,  for  ap- 
pellees. 

MONTGOMERY,  J.  This  is  a  bill  filed  on 
the  equity  side  of  the  court  to  set  aside  and 
restrain  the  collection  of  a  Judgment  obtain- 
ed by  the  defendant  William  Culver  against 
the  plaintiff  railroad  company  for  personal 
injuries  amounting  to  the  sum  of  $19,200.  ■ 
The  bin  alleges  that  such  Judgment  was  ob- 
tained in  the  circuit  court  for  the  county  of 
Van  Buren;  that  an  appeal  was  taken  to 
this  court  from  such  Judgment  where  the 
same  was  affirmed;  that  the  complainant 
the  Fidelity  &  Deposit  Company  of  Mary- 
land became  surety  on  the  bonds  given  on 
such  appeal;  that  subsequently,  upon  a  sale 
of  the  complainant  railroad  company  to  an- 
other railroad  system,  the  complainant  Steele 
entered  Into  an  obligation  to  pay  whatever 
sum  might  eventually  be  recovered  against 
the  company  In  said  action  by  said  Culver. 
The  bin  further  alleges  certain  proceedings 
taken  in  the  federal  court  to  restrain  the  col- 
lection of  this  Judgment  which,  however,  re- 
sulted in  a  dismissal  of  the  case  on  the  ground 
of  want  of  Jurisdiction  In  the  federal  court. 
The  bill  alleges  that  on  the  trial  of  the  case 
of  Culver  against  the  railroad  company,  said 
Culver  and  some  of  his  witnesses  knowingly 
and  willfully  testified  falsely  upon  the  ma- 
terial and  determining  question  in  the  case, 
and  that  he  and  his  attorney.  Tabor,  suborn- 
ed said  witnesses  to  swear  falsely ;  that  the 
officers  of  the  railroad  company  and  those 
In  charge  of  such  litigation  knew  in  practi- 
cal effect  that  such  testimony  was  false,  but 
that  with  all  due  diligence  they  were  unable 


•For  other  eases  see  auue  topic  and  mcUoq  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  &  Reporter  Indexea 


Digitized  by  VjOOQ  l€ 


96 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


to  make  proof  of  such  fact,  as  the  same  was 
kept  secret  and  was  clandestinely  done ;  that 
after  the  rendition  of  said  Judgment  and  aft- 
er the  appeal  thereof,  and  preceding  the  de- 
termination of  such,  appeal,  in  an  eCCort  to 
make  a  settlement  of  the  case  without  the  in- 
tervention of  his  lawyers,  the  said  Culver 
made  a  full  and  complete  statement  and  con- 
fession to  the  complainant  Steele  that  he, 
the  said  Culver,  had  testified  falsely  In  such 
cause  on  a  material  and  controlling  point 
therein,  and  that  he  and  his  attorney,  Tabor, 
had  suborned  witnesses  to  swear  falsely  in 
corroboration  of  his  testimony.  The  prayer 
of  the  bill  is  that  the  collection  of  the  Judg- 
ment be  forever  restrained  and  enjoined,  and 
for  such  further  relief  as  equity  may  require. 
To  this  bill  of  complaint  a  demurrer  was  fil- 
ed, and,  upon  hearing  by  the  court,  was  duly 
sustained.  The  complainant  appeals  the  case 
here. 

Attention  is  called  In  the  brief  of  defend- 
ants' counsel  to  proceedings  had  upon  mo- 
tions for  new  trial  and  to  proceedings  in  this 
court,  which  would  have  an  important  bear- 
ing upon  the  merits  of  the  case  if  properly 
within  the  issue.  But,  in  so  far  as  the  de- 
murrer attempts  to  raise  these  collateral 
questions  of  fact,  we  think  it  Is  not  good 
pleading.  Both  connsel,  however,  seem  to  be 
agreed  that  the  question  presented  is  wheth- 
er the  bill  makes  a  case  for  equitable  relief, 
and  that  question  we  proceed  to  consider. 

It  is  contended  by  complainant's  counsel 
that  the  question  in  the  precise  form  here 
presented  has  never  been  determined  by  this 
court  It  is  true  that  no  case  presenting  pre- 
cisely the  facts  averred  In  this  bill  has  been 
called  to  our  attention,  but  we  think  that  in 
principle  the  question  is  stare  decisis.  The 
question  arose  in  Gray  t.  Barton,  62  Mich. 
186,  28  N.  W.  813,  whether,  after  a  Judgment 
at  law  had  been  obtained,  a  court  of  equity 
would  interfere  to  restrain  the  collection  of 
the  Judgment  and  to  award  a  new  trial, 
where  the  bill  averred  that  the  defendant  in 
the  chancery  case  (plaintiflF  in  the  law  case) 
had  committed  perjury  upon  the  trial,  and 
that  the  complainant  was  not  at  the  time  of 
the  trial  of  the  suit  at  law  In  possession  of 
the  evidence  with  which  to  prove  the  falsity 
of  the  defendant's  testimony,  but  had  since 
been  able  to  procure  testimony  by  which  he 
could  establish  the  real  truth.  In  negativ- 
ing the  right  to  maintain  the  bill  it  was  said: 
"The  weight  of  authority  is  decidedly  against 
the  granting  of  a  new  trial  in  a  court  of 
equity  to  impeach  the  testimony  of  witness- 
es, or  because  a  party  has  committed  per- 
jury, or  even  suborned  a  witness  to  commit 
perjury."  It  was  added:  "It  might  be  that 
a  Judgment  at  law  might  l>e  so  manifestly 
against  conscience  that  a  new  trial  would  be 
granted  in  equity,  as  in  a  case  where  per- 
jury was  established  by  some  instrument  or 
document  in  writing,  or  where  a  witness  for 
the  prevailing  party  has  been,  subsequent 
to  the  trial,  convicted  of  false  swearing  in 


the  case."    The  case  of  Miller  v.  Morse,  23 
Mich.  368,  was  approved.  In  which  case   a 
.new  trial  was  asked  in  a  court  of  equity  to 
relieve  against  a  Judgment  at  law  alleged  to 
have  been  obtained  by  conspiracy  and  false 
swearing  of  the  plaintift.     In  disposing  of 
that  case,  the  court  said,  speaking  througb 
Mr.  Justice  Cooley:  "We  do  not  see  why.  If 
this  bill  should  be  sustained,  the  defeatea 
party  might  not  maintain  a  similar  one  In 
nearly  every  case  which  the  courts  at  law 
dispose   of."     The  question  again  was  pre- 
sented to  this  court  in  Codde  v.  Mahlat,  lOO 
Mich.  186,  66  N.  W.  1093.     In  that  case  It 
was  averred  that  the  verdict  was  obtained 
by  perjury  on  the  part  of  the  defendant. 
Complainant  averred  in  his  bill  that  he  had 
now  discovered  evidence  to  the  effect  that 
the  defendant  stated  to  other  parties  that 
she  was  not  engaged  to  complainant,  had  no 
love  or  afTection  for  him,  and  would  not  mar- 
ry him.     Again,  the  claim  was  made  that 
these  were  made  controlling  questions  in  the 
case.     But  in  a  very  brief  opinion  by   Mr. 
Justice  Grant  it  was  held  that  the  case  was 
ruled  by  Gray  t.  Barton.    It  is  undoubted 
that  cases  may  be  found  which  are  not  in  ac- 
cord with  the  views  expressed  in  these  two 
cases,   and   in   which    exceptions  are   intro- 
duced which  might  Justify  the  maintenance 
of  the  bill  in  the  present  case.    But  we  think 
the  rule  is  best  stated  in  United  States  ▼. 
Throckmorton,  98  U.  S.  61,  25  L.  Ed.  93.    In 
an  able  opinion  by  Mr.  Justice  Miller  the 
rule  is  stated  to  be  that,  if  in  the  trial  of  a 
suit  at  law  a  mistake  has  been  made  in  the 
law,  there  is  a  remedy  by  writ  of  error.    "If 
the  Jury  has  been  mistaken  in  the  facts,  the 
remedy  is  by  motion  for  new  trial.    If  there 
has  been  evidence  discovered  since  the  trial, 
a  motion  for  a  new  trial  will  give  appropri- 
ate relief.     But  all  these  are  parts  of  the 
same  proceeding,  relief  is  given  in  the  same 
suit,  and  the  party  is  not  vexed  by  another 
suit  for  the  same  matter.     So  in  a  suit  in 
chancery  on  proper  showing  a  rehearing  la 
granted.    If  the  injury  complained  of  is  an 
erroneous  decision,  an   appeal  to  a  higher 
court  gives  opportunity  to  correct  the  error. 
If  new  evidence  Is  discovered  after  the  de- 
cree has  become  final,  a  bill  of  review  on 
that  ground  may  be  filed  within  the  rules 
prescribed  by   law   on   that   subject.     Here, 
again,  these  proceedings  are  all  part  of  the 
same  suit,  and  the  rule  framed  for  the  re- 
pose of  society  is  not  violated.    But  there  is 
an  admitted  exception  to  this  general  rule  In 
cases,  where,  by  reason  of  something  done 
by  the  successful  party  to  a  suit,  there  was, 
in  fact,  no  adversary  trial  or  decision  of  the 
issue  in  the  case.     Where  the  unsuccessful 
party  has  been  prevented   from   exhibiting 
fully  bis  case  by  fraud  or  deception  practiced 
on  him  by  his  opponent,  as  by  keeping  him 
away  from  court,  a  false  promise  of  a  com- 
promise, or  where  the  defendant  never  had 
knowledge  of  the  suit,  being  kept  In  Igno- 


Digitized  by  VjOOQ  l€ 


Mlcb.) 


STEELE  T.  CULVER. 


97 


ranee  by  the  acts  of  the  plaintiff,  or  where 
an  attorney  fraudulently  or  without  authori- 
ty assumes  to  represent  a  party  and  connives 
at  his  defeat,  or  where  the  attorney  regular- 
ly employed  corruptly  sells  out  his  client's 
Interest  to  the  other  side — these,  and  similar 
cases  which  show  that  there  has  never  been 
a  real  contest  in  the  trial  or  hearing  of  the 
case,  are  reasons  for  which  a  new  suit  may 
be  sustained  to  set  aside  and  annul  the  for- 
mer Judgment  or  decree,  and  open  the  case 
for  a  new  and  a  fair  hearing.  *  *  *  In 
all  these  cases  and  many  others  which  have 
been  examined  relief  has  been  granted  on  the 
ground  that  by  some  fraud  practiced  direct- 
ly upon  the  party  seeking  relief  against  the 
Judgment  or  decree  that  party  has  been  pre- 
vented from  presenting  all  of  his  case  to  the 
court.  On  the  other  hand,  the  doctrine  is 
equally  well  settled  that  the  court  will  not 
set  aside  a  Judgment  because  it  was  founded 
on  a  fraadnloit  instrument,  or  perjured  evi- 
dence, or  for  any  matter  which  was  actually 
presented  and  considered  in  the  Judgment  as- 
sailed." In  our  view,  this  rule  Is  the  only 
one  which  can  be  applied  and  the  sanctl^ 
of  a  Judgment  be  maintained.  It  was  fur- 
ther said  by  Mr.  Justice  Miller:  "The  mis- 
chief of  retrying  every  case  In  which  the 
Judgment  or  decree  rendered  on  false  testi- 
mony given  by  perjured  witnesses,  or  on  con- 
tracts or  documents  whose  genuineness  or 
validity  was  in  issue,  and  which  are  after- 
wards ascertained  to  be  forged  or  fraudulent, 
would  be  greater,  by  reason  of  the  endless 
nature  of  the  strife,  than  any  compensation 
arising  from  doing  Justice  in  individual  cas- 
es." As  was  said  by  Chief  Justice  Shaw  in 
Greene  v.  Greene,  2  Gray  (Mass.)  361,  61  Am. 
Dec.  454,  referred  to  by  Mr.  Justice  Miller  in 
U.  S.  ▼.  Throckmorton:  "The  maxim  that 
fraud  Tltiates  every  proceeding  must  be  tak- 
en, like  other  general  maxims,  to  apply  to 
cases  where  proof  of  fraud  is  admissible. 
But  where  the  same  matter  has  been  actually 
tried,  or  so  In  issue  that  it  might  have  been 
tried.  It  Is  not  again  admissible.  The  party 
Is  estopped  to  set  up  such  fraud  because  the 
Judgment  Is  the  highest  evidence,  and  cannot 
be  contradicted." 

The  case  of  Edson  v.  Edson,  108  Mass.  590, 
11  Am.  Rep.  393,  is  cited  by  complainant's 
counsel.  As  we  read  that  case,  however.  It  In 
no  way  militates  against  the  decision  of  Mr. 
Justice  Shaw  in  Greene  v.  Greene.  That 
case  iB  reviewed  at  length,  and  the  substance 
of  the  decision  stated  as  follows:  "Strictly 
speaking,  the  decision  Is  an  authority  only 
for  the  proposition  that  a  decree  of  divorce 
cannot  t>e  called  in  question  or  invalidated, 
on  the  ground  of  fraud  in  Its  procurement, 
in  a  separate  and  independent  libel,  subse- 
quently brought  between  the  same  parties, 
when  it  appears  that  the  first  decree  was  en- 
tered after  due  notice  to  the  adverse  party, 
followed  by  an  adjudication  upon  evidence 
offered  in  support  of  the  allegations  in  the 
llbeL  To  this  extoit  there  can  be  no  doubt 
122  N.W.— 7 


that  the  decision  is  In  harmony  with  sound 
principle  and  with  adjudicated  cases."  It 
is  then  shown  that  the  case  under  considera- 
tion is  quite  different,  in  that  It  appeared 
that  the  proceeding  was  instituted  by  an  In- 
nocent party  without  notice,  who  was  ag- 
grieved by  a  Judgment  or  decree  obtained 
against  her  without  her  knowledge  by  the 
fraud  of  the  other  party.  The  following  cas- 
es are  in  harmony  with  the  rule  laid  down  in 
this  state,  and  to  which  we  adhere:  Pico  v. 
Cohn,  91  Gal.  129,  25  Pac.  970,  27  Pac.  537, 
IS  L.  R.  A.  336,  25  Am.  St  Rep.  159 ;  Frieze 
V.  Hummel,  26  Or.  145,  87  Pac.  458,  46  Am. 
St.  Rep.  610.  In  Little  Rock,  etc.,  Ry.  Co.  v. 
Wells,  61  Ark.  354,  33  S.  W.  208,  30  L.  R.  A. 
560,  54  Am.  St.  Rep.  233,  it  is  stated,  and  we 
think  it  is  an  accurate  summary  of  the  au- 
thorities, that,  while  there  are  a  few  deci- 
sions which  are  defensible  only  on  the  theory 
that  an  allegation  of  perjury  or  subornation 
of  perjury  may  be  sufficient  to  Invoke  the  ac- 
tion of  the  court  against  a  Judgment  .claimed 
to  be  due  thereto,  these  decisions  are  con- 
trary to  the  great  weight  of  authority  on  the 
subject.  See,  also,  Graves  v.  Graves,  132 
Iowa,  199,  109  N.  W.  707,  10  L.  R.  A.  (N.  S.) 
216,  and  accompanying  note. 

It  Is  contended  that  the  authority  of  Unit- 
ed States  V.  Throckmorton,  98  U.  S.  61,  25 
L.  Ed.  93,  has  been  shaken  by  the  case  of 
Marshall  v.  Holmes,  141  U.  S.  689,  12  Sup. 
Ct.  62,  35  L.  Ed.  870.  Without  reviewing  at 
length  this  latter  decision,  we  think  the  best 
answer  to  this  contention  Is  contained  in  the 
opinion  of  Judge  Lacombe  in  United  States 
V.  Gleeson,  90  Fed.  778,  33  C.  C.  A.  272.  The 
precise  question  of  whether  Marshall  v. 
Holmes  had  overturned  the  doctrine  of  Unit- 
ed States  V.  Throckmorton  was  there  consid- 
ered, and  the  court  held,  on  the  contrary, 
that  the  rule  laid  down  in  the  Throckmorton 
Case  was  stare  decisis.  As  before  intimated, 
the  Michigan  rule  is  established  by  the  two 
cases  of  Gray  v.  Barton  and  Codde  v.  Mahl- 
at  The  only  possible  distinction  between 
those  cases  and  the  present  is  that  in  this 
case  there  is  an  averment  that  the  complain- 
ant has  secured  an  admission  of  the  perjury 
from  the  party.  This,  however,  only  goes 
to  the  character  of  the  proof  by  which  the 
perjury  is  to  be  established.  The  same  ob- 
jection to  a  retrial  of  a  question  foreclosed 
by  a  trial  and  Judgment  at  law  would  arise 
and  the  same  considerations  which  would 
preclude  a  party  from  proving  by  evidence 
of  other  witnesses  the  fact  of  perjury  would 
be  quite  as  persuasive  to  deny  the  right  to 
rest  upon  alleged  admissions  of  a  party.  We 
think  to  Ingraft  such  an  exception  on  the 
rule  would  open  the  door  to  abuse  and  render 
a  Judgment  obtained  after  a  full  trial  on  the 
merits  precarious,  and  Impose  upon  the  suc- 
cessful party  the  burden  of  unbearable  ex- 
pense in  maintaining  a  right  already  adjudi- 
cated. 

The  decree  of  the  court  below  dismissing 
the  bill  of  complaint  is  affirmed,  with  costs. 


Digitized  by  VjOOQ  l€ 


98 


122  NORTHWESTERN  REPORTER. 


(Mich. 


PEOPLE  ▼.  ANDRE. 
(Saprem«  Court  of  Michigan.     July  6,  1909.) 

1.  Falsb  Pbetxhses  (§  51*)— Pbosecutiow— 
Qdkstion  or  Fact— Tbxjth  of  Statement 
OF  Resoubces. 

In  a  prosecution  for  obtaining  goods  by 
false  pretenses,  whether  a  statement  of  ac- 
cused's pecuniary  circumstances  filed  with  a 
banlc  was  true  held,  under  the  evidence,  to  be 
for  the  Jury. 

[Ed.  Note.— For  other  cases,  see  False  Pre- 
tenses, Dec.  Dig.  {  51.*] 

2.  False  Pbetehses  (J  43*)— Pkosecution— 
Admissibility  of  Evidence. 

In  a  prosecution  for  obtaining  goods  by 
false  pretenses,  evidence  of  a  conversation  over 
the  phone,  between  complainant  and  a  banlc  to 
which  accused  had  referred  him  for  informa- 
tion as  to  his  financial  condition,  in  which  com- 
plainant was  informed  that  accused  had  made 
a  certain  statement  as  to  his  finances,  was  ad- 
missible to  show  that  the  fact  that  accused  had 
made  such  a  statement  was  communicated  to 
complainant. 

[Ed.  Note.— For  other  cases,  see  False  Pre- 
tenses, Dec  Dig.  S  43.*] 

8.  Cbiminai,  Law  ({  1170*)— Wbit  of  Ebbob— 

Harmless  Ebbob— Evidence. 

Though  the  evidence  was  not  competent 
proof  of  the  fact  that  a  statement  had  been 
made,  it  was  not  error  to  refuse  to  strike  the 
statement  from  the  case,  where  it  was  proved  by 
otiier  competent  testimony. 

[Ed,  Note.— For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  §{  3145-3153;    Dec.  Dig.   { 

4.  False  Pretenses  (8  8*)— Inducement  to 

Act— LiABiLiTT. 

Where  a  person  obtained  goods  on  the 
strength  of  a  financial  statement,  furnished  to 
a  bank  to  which  he  referred  the  seller,  the 
fact  that  the  bank  informed  the  seller  that  the 
statement  placed  the  buyer's  resources  over  his 
debts,  etc.,  at  $18,000,  while  the  amount  claim- 
ed in  the  statement  was  $18,900,  would  not 
affect  the  buyer's  liability  for  the  falsity  of 
the  statement. 

(Ed.  Note.— For  other  cases,  see  False  Pre- 
tenses, Dec.  Dig.  (  &,*] 

Error  to  Circuit  Court,  Eaton  County ; 
Clement  Smith,  Judge. 

William  Andre  was  convicted  of  obtaining 
goods  under  false  pretenses,  and  he  brings 
error.    Affirmed. 

See,  also,  153  Mich.  531,  117  N.  W.  55. 

Argued  before  MONTGOMERY,  OSTRAN- 
DER,  HOOKER,  MOORE,  and  BROOKE,  JJ. 

Frank  A.  Dean  and  George  Huggett,  for 
appellant.  John  E.  Bird,  Atty.  Gen.,  and  El- 
mer N.  Peters,  Pros.  Atty.,  for  the  People. 

HOOKER,  J.  Defendant,  being  engaged  in 
the  purchase  of  butter  and  eggs  at  Grand 
Ledge,  and  the  owner  of  an  alleged  cold  stor- 
age plant  there,  made  a  contract  with  the 
complainant,  living  at  Eaton  Rapids,  to  pay 
him  a  stipulated  price  for  those  commodities, 
f.  o.  b.  car  at  Eaton  Rapids,  under  which 
arrangement  complainant  shipped  him  a 
quantity  of  each  on  the  11th  and  12th  days  of 
May,  1906.  Not  receiving  payment  for  the 
same,  he  caused   defendant's   arrest,  on  a 


charge  of  obtaining  the  same  under  false  pre- 
tenses. Being  convicted,  the  defendant  has 
appealed  to  this  court 

A  former  verdict  in  tliis  cause  was  revers- 
ed. See  153  Mich.  «531,  117  N.  W.  55,  where 
the  facts  are  stated  at  length.  The  informa- 
tion charged  the  following  representations, 
viz.:  (1)  That  defendant  was  owner  of  the 
Grand  Ledge  storage  plant;  (2)  that  he  de- 
sired to  purchase  eggs  for  the  purpose  of 
storage;  (3)  that  he  intended  to  store  said 
eggs  in  the  East;  (4)  that  he  was  springing 
the  price  in  order  to  secure  early  eggs  for  the 
purpose  of  storage ;  (5)  that  he  referred  com- 
plainant to  the  Grand  Ledge  State  Bank  for 
information,  and  that  complainant  was  in- 
formed by  said  bank  tliat  he  had  made  a 
statement  of  property  showing  that  he  was 
worth  $18,000  over  and  above  debts,  llabiU- 
tles,  and  exceptions.  The  evidence  showed 
that  defendant  did  own  the  cold  storage 
plant  at  Grand  Ledge,  and  the  court  bo  in- 
structed the  Jury. 

There  was  testimony  tending  to  show  that 
the  defendant  issued  and  mailed  cards  ofifer- 
tng  a  price  named  for  butter  and  eggs,  cue 
of  which  came  to  the  complainant.  That  the 
price  so  stated  was.  In  the  opinion  of  the 
complainant,  higher  than  he  (the  complain- 
ant) could  afford  to  pay.  He,  therefore,  went 
to  see  defendant,  and  offered  to  sell  produce 
to  him.  That  the  representations  made  grew 
out  of  the  complainant's  proposal  to  ship 
butter  and  eggs  to  defendant,  with  draft  at- 
tached to  bill  of  lading,  which  defendant  ob- 
jected to,  for  reasons  stated,  and  made  the 
representations  aforesaid,  except  that  he  did 
not  state  directly  to  complainant  that  he  was 
worth  $18,000  over  and  above  his  debts,  liabil- 
ities, and  exemptions,  but  referred  complain- 
ant to  the  Grand  Ledge  State  Bank  as  a  source 
of  Information.  That  on  May  11,  and  May 
12,  1906,  complainant  made  shipment  to  de- 
fendant ;  May  12th  being  Saturday.  That  aft- 
erwards he  received  information  leading  him 
to  distrust  defendant's  solvency,  and  he  called 
up  the  Grand  Ledge  State  Bank,  and  had 
talk  by  telephone  with  a  person  who  stated  to . 
him  that  he  was  the  cashier  of  said  bank,  and 
that  defendant  had  some  weeks  before  filed  a 
statement  of  his  pecuniary  circumstances.  In 
which  he  stated  that  his  property  amounted 
to  $18,900  over  and  above  his  debts,  liabili- 
ties, and  exemptions.  That  there  was  no  oth- 
er evidence  of  the  identity  of  the  person  so 
talking  as  the  cashier,  except  that  he  said 
he  talked  to  persons  often  by  phone  about 
defendant,  and  there  was  evidence  that  such 
a  statement  had  been  filed  as  stated  by  such 
person.  There  was  evidence  to  the  effect  that 
this  Inr^rmatlon  came  to  the  complainant  in 
time  for  him  to  have  stopped  said  produce 
before  its  delivery  to  the  defendant,  and  that 
he  refrained  from  doing  so,  for  the  reason 
that  he  believed  said  statement.  There  was 
also  testimony  tending  to  show  that  the  de- 


•For  other  cues  ■••  same  topic  and  aectlon  NUMBER  In  D«c.  A  Am.  Digs.  1907  to  data.  4k  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Mlcb.) 


OVID  CARRIAGE  CO.  t.  PARSILLB. 


99 


fendant  was  InBOlvent  at  that  time;  fbat  he 
knew  that  he  wai :  that  he  Isaoed  said  cards, 
and  paid  a  high  price,  with  the  design  of  ob- 
taining large  conslgnmenta  of  produce,  and 
afterwards  settling  with  his  creditors  at  10 
cents  on  the  dollar,  as  he  had  heard  that  an- 
other person  had  done.    It  Is  contended  that 
the  court  shonid  have  directed  a  verdict  for 
the  defendant  upon  the  ground  that  the  state- 
ment made  to  the  bank  was  substantially 
true.    There  was  testimony  that  this  was  a 
statement  of  the  Cold  Storage  Company,  and 
that  William  Andre,  the  defendant,  was  the 
sole  proprietor.    The  value  of  the  plant  was 
stated  by  him  to  be  $25,000,  and  there  was 
other  testimony  to  that  effect,  but  there  was 
also  testimony  of  a  lower  value,  which  made 
it  a  disputed  question  of  fact.    It  was  there- 
fore proper  to  submit  the  question  to  the  Jury. 
Error  is  assigned  upon  the  admission  of 
testimony  regarding  the  conversation  by  tele- 
pIioDe.     The  Importance  of  this  testimony 
was  the  bringing  to  the  knowledge  of  com- 
plainant the  fact  that  defendant  had  made 
such  a  statement     It  is  true  that  this  was 
not  competent  proof  of  the  fact  that  a  state- 
ment had  been  made,  bnt  that  fact  was  prov- 
ed by  other  witnesses,  and  it  was  competent 
to  show  that  die  fact  was  communicated  to 
comiriainant    The  testimony  was  admissible 
for  that  purpose,  as  It  tended  to  prove  that 
complainant  learned  an  existing  fact  from  an 
at^iarently    anthentlc    source   which    might 
well,  and  be  stated  did,  influence  his  action. 
The  testimony  was  admissible,  and  It  was  not 
error  to  refuse  to  strike  the  statement  from 
the  case,  as  it  was  proved  by  other  compe- 
tent testimony. 

Error  is  also  assigned  on  the  refusal  of  the 
circuit  Judge  to  give  a  number  of  requests 
to  charge.  The  first  three  have  been  covered 
by  what  has  been  said.  The  fourth  is  based 
on  an  alleged  variance  between  the  allega- 
tion that  the  cashier  of  the  state  bank  in- 
formed complainant  that  defendant  had  made 
a  statement  tliat  he  was  worth  $18,000  over 
and  above  his  debts,  etc.,  and  the  proof  which 
showed  that  such  statement  was  that  he  had 
118.900.  over  debts,  etc.  There  Is  no  merit 
In  this  claim.  The  fact  that  the  statement 
was  $900  larger  than  the  amount  stated  to 
complainant  does  not  militate  against  the 
people's  claim.  He  made  the  statement,  and 
the  ram  stated  by  the  cashier  Is  within  that 
in  the  statement  No  question  Is  raised  over 
the  Information. 

The  other  requests  were  Bufflcieritly  covered 
by  the  charge  of  the  learned  circuit  Judge, 
which  was  clear  and  fair. 

There  are  a  few  assignments  relating  to  the 
introduction  of  testimony,  but  they  are  un- 
important 

We  find  no  error  In  the  record,  and  the  pro- 
ceedings are  aCBrmed. 


OVID  CARRIAGE  CO.  T.  PARSILLH. 
(Supreme  Coart  of  Michigan.     July  6,  1909.) 

AsSIOnUERTS    FOB    BiNKFIT    OF    CBIDITOBS    (| 

278*)— TiTLB  OF  AssiQNEB— Sufficiency  of 

EVIDXNCX. 

In  an  action  against  a  common-law  as- 
signee for  beneSt  of  creditors,  to  recover  goods 
claimed  to  belong  to  plaintiff,  evidence  held 
to  show,  either  that  the  goods  were  sold  to 
the  assignor  under  a  contract  reserving  title 
in  the  plaintiff,  or  tliat  the  goods  were  sold 
on  the  credit  of  another,  from  whom  the  as- 
signor got  no  title,  so  that  the  assignee  had  no 
title  to  the  goods. 

[Ed.  Note.— For  other  cases,  see  Assignments 
for  Benefit  of  Creditors,  Dec.  Dig.  {  278.*] 

Appeal  from  Circuit  Court  Chippewa 
County,  In  Chancery;  Joseph  H.  Steere, 
Judge. 

Petition  by  Ovid  Carriage  Company,  a  cor- 
poration, against  William  K.  FarslUe,  receiv- 
er, etc.,  to  recover  goods  held  by  receiver. 
From  a  Judgment  for  petitioner,  respondent 
appeals.    Affirmed. 

Argued  before  BLAIR,  0.  J.,  and  MONT- 
GOMERY, HOOKER,  BROOKE,  and  Mc- 
ALVAY,    JJ. 

Davidson  ft  Hudson,  for  appellant.  Law- 
rence H.  Brown  (B.  S.  B.  Sutton,  of  counsel), 
for  appellee.' 

MONTGOMERY,  J.  The  respondent  Is 
the  assignee  of  the  Chippewa  Produce  & 
Supply  Company  under  a  common-law  as- 
signment and  is  administering  the  trust  un- 
der the  direction  of  the  circuit  court  for 
the  county  of  Chippewa,  in  chancery.  The 
petitioner  intervenes,  and  asks  to  be  declar- 
ed the  owner  of  certain  carriages  In  the  pos- 
session of  the  Chippewa  Produce  &  Supply 
Company  at  the  time  of  the  assignment. 
The  relief  prayed  for  was  granted  by  the 
circuit  court  and  from  this  order  the  re- 
spondent appeals. 

The  facts  in  the  case  are  that  on  the  9th 
of  March,  1906,  a  written  order  was  given 
by  the  Chippewa  Produce  ft  Supply  Com- 
pany for  the  buggies  in  question.  This  or- 
der reserved  title  In  all  the  goods  to  be  ship- 
ped in  the  Ovid  Carriage  Company  until 
they  should  be  paid  for  in  cash.  It  appears 
that  when  this  order  was  first  tendered  to 
the  carriage  company,  it  was  refused.  But 
the  agent  of  the  carriage  company,  a  Mr. 
Boughey,  being  anxious  to  effect  a  sale, 
called  upon  Charles  A.  Nelson,  the  secretary 
of  the  Chippewa  Produce  ft  Supply  Com- 
pany, and  after  a  conversation  with  him  the 
goods  were  shipped.  The  petitioner  asserts 
that  these  goods  were  shipped  under  the 
first  order,  but  the  respondent  contends  that, 
the  first  order  having  been  refused,  It  can- 
not be  revived  to  measure  the  rights  of  the 
parties. 

The  conversation  with  Nelson,  as  testified 
to>by  Boughey,  was,  in  substance,  as  fol- 


•Tor  otlMT  CMOS  SM  sam*  topto  and  sactlon  NUMBER  In  Dee.  ft  Am.  Diss.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  IC 


100 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


lows:  It  appears  that  one  Henry  H.  Wyatt,  | 
an  entirely  responsible  person,  was  to  some 
extent  Interested  In  the  Chippewa  Produce 
&  Supply  Company.  Mr.  Boughey  testified 
that  he  met  Mr.  Nelson  at  Northport,  and 
the  latter  wanted  to  know  whether  the  com- 
pany was  going  to  accept  the  Chippewa  Prod- 
uce &  Supply  Company's  order.  He  re- 
plied that  It  was  not.  "Well,  then  he  said 
for  me  to  go  to  work  and  write  the  order, 
and  If  they  would  ship  the  goods  to  Wyatt 
&  Nelson,  that  they  would  look  after  the 
payment  of  the  same,  and  I  asked  him  If  be 
had  any  such  authority  from  Mr.  Wyatt,  and 
he  said,  'I  have  given  you  the  order  for  bug- 
gies and  have  signed  Wyatt  &  Nelson's  name 
to  It,  which  ought  to  be  evidence,'  so  I  took 
It  that  way,  and  wrote  the  company  to  that 
effect"  He  further  testified:  "Q.  Well,  you 
gathered  that  there  had  been  an  understand- 
ing with  Wyatt  regarding  the  Ovid  deal  ?  A. 
Yes,  sir;  I  supposed  there  had  been  when 
the  other  three  orders  were  signed  that  way. 
That  is  what  Nelson  was  down  there  for  as 
much  as  anything.  Q.  When  you  asked  blm 
whether  or  not  he  had  this  authority,  he  Just 
simply  said,  'I  am  signing  his  name,  ain't 
I'?  A.  That  is  the  only  answer  he  made. 
Q.  And  you  let  it  go  at  that?  A.  Yes;  I  let 
It  go  at  that"  It  Is  not  claimed  that  Mr. 
Wyatt  had  In  fact  given  authority  to  Mr. 
Nelson  to  make  this  purchase  In  the  name  of 
Wyatt  &  Nelson.  The  respondent  testifies 
that  the  goods  still  on  hand  are  worth  $650; 
that  he  does  not  know  of  any  transfer  from 
Mr.  Wyatt  or  Mr.  Nelson,  or  both  of  them 
to  the  Chippewa  Produce  &  Supply  Compa- 
ny; that  he  found  the  goods  there  when  be 
took  possession,  ana  Included  them  in  the 
Inventory.  The  goods  were  In  fact  shipped 
either  to  Wyatt  &  Nelson,  or  to  Nelson,  just 
which  is  not  made  very  clear,  were  placed 
in  the  stock  of  the  Chippewa  Produce  A 
Supply  Company,  and  to  the  amount  of  |650 
were  on  band  at  the  time  the  assignment 
was  made. 

It  seems  to  be  the  theory  of  the  defend- 
ant that  In  some  way  the  title  to  this  prop- 
erty vested  in  Nelson,  and  that  he  turned  It 
over  to  the  Chippewa  Produce  &  Supply 
Company,  and  that  therefore  the  provision 
contained  In  the  original  order  reserving  title 
In  the  petitioner  Is  not  operative.  We  are 
unable  to  find  in  the  record  any  evidence 
whatever  of  a  sale  to  Nelson  of  these  goods. 
If  the  credit  was  extended  to  any  one  other 
than  the  Chippewa  Produce  &  Supply  Com- 
pany, it  was  extended  to  Wyatt  &  Nelson, 
and  this  upon  the  supposition  that  Nelson 
had  authority  to  bind  Mr.  Wyatt  in  the 
transaction,  which  turns  out  not  to  have 
been  a  fact  Possession  thus  obtained  would 
be  obtained  by  virtue  of  legal  fraud,  and 
the  title  would  not  have  passed  to  the  con- 
signee. If.  on  the  other  band,  the  goods 
were  shipped  under  the  first  order,  the  order 


Itself  contained  a  sufficient  reservation  of 
title.  So  that  In  either  case,  it  is  evident 
that  there  came  into  possession  of  this  as- 
signee property  to  the  value  of  $650  or  there- 
abouts, title  to  which  was  originally  in  tbe 
petitioners,  and  which  had  never  passed 
from  them. 

The  order  awarding  this  sum  to  the  peti- 
tioners, to  be  paid  out  of  the  funds  of  tbe 
estate.  Is  affirmed,  with  costs. 


FETZ  v.  LEYENDECKER. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

1.  Jttdohent  (fi  921*)— Actions  on  Judgment 
—Questions  fob  Jubt. 

In  an  action  to  enforce  two  judgments 
against  defendant,  which  was  defended  on  the 
ground  of  payment  to  the  attorney  of  record 
for  the  prevailing  party  in  both  judgments,  tbe 
questions  whether  the  attorney  had  authority  to 
settle  the  judgments,  and  whether  there  was 
valid  consideration  for  the  acceptance  of  an 
amount  less  than  the  amount  due  in  settlement 
thereof,  were  questions  of  fact 

[Ed.  Note. — For  other  cases,  see  Judgment 
Cent.  Dig.  g  1752;    Dec  Dig.  g  921.»] 

2.  Attobnet  and  Client  (§  100*)— Adthob- 
ITT  o»  Attobney— Payments. 

The  payment  of  a  judgment  to  the  attor- 
ney of  record  for  the  prevailing  party,  made 
over  three  years  after  the  judgment  was  ren- 
dered, is  not  a  satisfaction,  if  the  attorney  had 
no  authority  to  settle  for  the  sum  paid,  which 
was  less  than  tbe  amount  of  the  judgment. 

[Ed.  Note.— For  other  cases,  see  Attorney 
and  CUent  Cent  Dig.  S  204 ;  Dec.  Dig.  {  100.*J 

Error  to  Circuit  Court  Kent  County;  Wil- 
lis B.  Perkins,  Judge. 

Action  by  John  P.  Fetz  against  Peter  Ley- 
endecker.  Judgment  for  plaintiff,  and  de- 
fendant appeals.    Affirmed. 

Argued  before  MONTGOMERY,  OSTRAN- 
DER,  HOOKER,  MOORE,  and  BROOKE. 
JJ. 

Charles  A.  Watt,  for  appellant  Frank 
W.  Hine,  for  appellee. 


HOOKER,  3.  This  cause  was  appealed  by 
the  defendant  The  findings  filed  by  the 
trial  judge,  are.  In  substance,  that:  (1)  Plain- 
tiff recovered  a  circuit  court  judgment  for 
$52  damages,  costs  $37.07,  against  the  de- 
fendant on  February  17,  1894;  (2)  on  tbe 
same  date  Brenner  recovered  a  circuit  court 
judgment  against  defendant  for  costs  taxed 
at  $37.92 ;  (3)  on  June  9,  1903,  Brenner  as- 
signed bis  judgment  to  plaintiff;  (4)  on  Au- 
gust 6,  1897,  one  Averill,  claiming  to  repre- 
sent Henry  J.  Felker,  the  attorney  of  record 
for  the  prevailing  party  in  both  of  said  cas- 
es, accepted  from  tbe  defendant  $12  in  full 
settlement  of  both  judgments,  giving  his  re- 
ceipt therefor;  (6)  later  said  Felker  stated 
to  defendant  that  all  matters  between  them 
were  settled.  He  afterwards  denied  to  tbe 
plaintiff  that  he  had  received  payment  on 
said  judgments,  and  that  they,  or  either  of 


*For  otiier  cmm  fee  same  topic  and  section  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


UldL) 


OOVELL  V.  BRIGHT. 


101 


them,  were  settled.  He  held,  as  condn- 
slons  of  law,  that  the  $12  received  by  Aver- 
111  was  part  payment  In  the  Jndgments,  and 
that  there  was  no  consideration  for  the 
agreement  of  settlement,  and  that  plaintiff 
was  entitled  to  Jadsment  for  the  balance 
thereof  with  Interest  and  gave  judgment 
accordingly. 

Exceptions  were  taken  to  the  refusal  to 
find  (1)  that  the  Judgments  were  taken  by 
default  when  defendant  was  absent  from 
the  stale;  (2)  that  he  made  preparations  to 
reopen  the  cases  and  set  aside  the  default 
and  that  Felker  was  duly  authorized  to  and 
did  settle  the  Judgments  to  avoid  litigation. 
Exception  was  also  taken  to  the  finding  that 
Felker  denied  to  plaintiff  that  he  had  re- 
ceived payment  upon  or  had  settled  the 
Judgments;  also  to  his  refusal  to  find  as  a 
conclusion  of  law  that:  "I  find  that  both 
Judgments)  mentioned  in  plaintiff's  declara- 
tion were  default  Judgments,  and  that  steps 
were  being  taken  to  set  aside  said  defaults, 
and  that,  to  avoid  litigation,  the  parties  set- 
tled the  same,  and  that  same  are  in  l»w  dis- 
charged, and  that  a  Judgment  of  no  cause  of 
action  should  be  entered  in  said  cause,  with 
costs  to  the  defendant  to  be  taxed."  There 
was  a  dispute  in  the  testimony  as  to  the 
authority  of  Felker  to  settle  these  Judg- 
ments, and  the  learned  circuit  Judge  refus- 
ed to  find  that  he  had  such  authority.  He 
also  found  that  there  was  no  valid  consid- 
eration for  the  acceptance  of  $12  in  settle- 
ment thereof.  Both  were  questions  of  fact 
Defendant  could  not  prevail  unless  he  estab- 
lished the  fact  that  Felker  was  authorized  to 
settle  the  case.  The  court  refused  to  so  find, 
and  defendant  coold  not  prevail,  although  it 
were  found  that  the  agreement  with  Aver- 
ill  was  upon  a  valid  consideration.  But  the 
court  said  it  was  not  The  only  considera- 
tion claimed  is  that  defendant  told  Averill 
that  he  would  rather  reopen  the  case  than 
pay  more  than  $10.  In  view  of  the  fact  that 
the  Judgments  were  then  three  years  old  or 
thereabouts,  the  Judge  might  well  hesitate 
to  find  that  such  suggestion  was  any  induce- 
ment to  the  settlement  or  so  considered. 
He  found  the  contrary,  and  we  think  It  <was 
not  error.  Even  If  It  were,  the  failure  of 
the  court  to  find  authority  was  fatal  to  the 
defense.  There  Is  no  occasion  to  discuss 
other  questions. 

The  Judgment  is  affirmed. 


COVELIi  V.  BRIGHT  et  al. 
(Snpreme  Court  of  Michigan.     July  6.  1S09.) 
L  Watrs  Awn   Wateb  Courses   (J   126*)— 

ABTinCIAL  DBAIR8  —  PBESCBIPTIVE  RIGHTS 
— EVIDERCB. 

Evidence  AM  to  show  that  the  right  to 
discharge  watera  from  one  tract  of  land  on  an- 
other through  an  artificial  drain  was  a  pre- 
scriptive right   and  an   interference  with   the 


drain  was  not  an  interference  with  tlrt  flow- 
age  of  a  natural  water  course,  or  with  the  flow- 
age  of  larface  waters. 

[Ed.  Note.— For  other  cases,  gee  Waters  and 
Water  Courses,  Dec.  Dig.  {  126.*] 

2.  Basekentb  ({  16*)  —  Right  as  AoAinsT 

PUBCHASEB   OF   SBBVIENT  BSTATB. 

To  entitle  a  grantor,  conv^inR  a  part  of 
his  land  by  warranty  deed,  with  full  covenants, 
to  claim  an  easement  therein  for  the  benefit  of 
his  remaining  land,  he  must  show  that  the 
servitude  was  apparent  continaona,  and  strict- 
ly necessary  to  the  enjoyment  of  his  remain- 
ing land. 

[Ed.  Note.— For  other  cases,  see  Easements, 
Cent  Dig.  8  43;  Dec.  Dig.  §  16.*] 

3.  Easeiients  (S  36*)— Evidence. 

Evidence  held  not  to  show  that  the  exist- 
ence of  an  easement  on  the  land,  conveyed  by 
deed  for  the  benefit  -ot  other  land  of  the  gran- 
tor, was  80  apparent  that  the  grantee,  obtain- 
ing a  warrantv  deed  with  full  covenants,  was 
chargeable  with  notice  thereof,  or  that  it  was 
necessary  to  the  enjoyment  of  the  grantor's 
other  land. 

[Ed.  Note.— For  other  cases,  see  Elasements, 
Dec  Dig.  t  86.*] 

Appeal  from  Circuit  Court  Kent  County,  in 
Chancery;  Willis  B.  Perkins,  Judge. 

Suit  by  Chester  F.  Covell  against  Garrison 
S.  Bright  and  others.  From  a  decree  of  dis- 
missal,   complainant   appeals.     Affirmed. 

Argued  before  BLAIR,  C.  J.,  and  MONT- 
GOMERT,  HOOKER,  McALVAY,  and 
BROOKE.  JJ. 

Colin  P.  Campbell,  for  appellant  Smedley 
&  Corwln,  for  appelleea. 

BliAIR,  C.  J.  The  facts  in  this  case  were 
agreed  upon  by  counsel  for  the  respective 
parties,  pursuant  to  the  proviso  in  section 
3,  No.  840,  p.  498,  Pub.  Acte  1907.  Complain- 
ant's mother,  being  the  owner  of  certain 
lands  on  section  15  in  the  township  of  Walk- 
er in  Kent  county,  died  in  1893,  and  the  title 
thereto  descended  to  complainant  Complain- 
ant upon  the  death  of  his  father  In  1895, 
succeeded  to  the  title  to  certain  lands  on  sec- 
tion 22  in  said  township.  Before  the  con- 
struction of  any  drain,  a  depression  which 
might  be  called  a  swale  originated  on  section 
22  in  the  township  of  Walker,  Kent  county, 
Mich.,  about  16  rods  west  of  the  north  and 
south  quarter  line  dividing  that  section,  and 
about  16  rods  south  of  the  north  section  line 
^vidlng  sections  22  and  15.  This  swale 
from  this  point  of  origin  ran  to  the  north, 
then  broadened  out  into  a' small  pond  about 
6  rods  across.  West  of  said  point  there  was 
a  slight  rise  in  the  ground,  and  further  west 
there  was  another  swale  about  26  rods  west 
of  the  pond  aforesaid.  In  times  of  high  wa- 
ter the  water  from  the  east  ran  westward 
into  the  west  pond,  which  extended  north- 
ward to  the  section  line,  and  at  that  point 
was  about  8  rods  wide.  This  swale  continued 
at  about  the  same  width  across  the  section 
line  to  the  north  and  northeast,  and  terminat- 
ed about  10  rods  north  of  the  section  line 
in  a  pond,  or  swamp,  about  6  rods  across. 


•For  otlicr  cases  see  lama  topic  and  sectloa  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  *  Reporter  Indezea 


Digitized  by 


Google 


102 


122  NORTHWBSTERN  REPOBTEB. 


(Mlcb. 


This  swamp  was  on  section  15,  and  has  no 
surface  outlet  whatsoever.  The  swale  was 
surrounded  on  all  sides  by  hills,  with  a  con- 
siderable elevation  above  the  bottom  of  the 
swale.  The  only  ways  water  disappears  Is 
by  evaporation  and  by  percolation,  or  soak- 
ing through  the  ground.  -  There  Is  not  now, 
and  never  has  been,  so  far  as  the  evidence 
showed,  a  living  stream  at  this  point,  nor  are 
there  springs  in  this  swale.  These  swales, 
or  swamps,  have  no  defined  banks,  or  banks 
at  all.  The  land  from  the  margin  of  the 
swale  sloped  to  a  considerable  elevation, 
making  large  hills;  and  there  Is  no  stream 
and  no  flowage  of  water  except  In  cases  of 
heavy  rain,  when  it  naturally  runs  to  the 
lowest  spot.  At  times  of  rain  moderately 
heavy,  and  In  the  spring  when  the  snow 
melts,  large  quantities  of  water  have  always 
accumulated  in  the  swale,  and  this  water  has 
settled  in  the  sag,  or  side  swale,  on  the  south 
side  of  the  section  line,  and  part  of  it  passed 
to  the  north  across  the  section  line  from 
section  22  to  section  15,  drained  Into  the 
swamp,  and  there  disappeared,  partially  by 
evaporation  and  partially  by  percolation. 
The  result  has  been  that  Into  this  swamp 
«n  sections  22  and  16  the  surface  drainage 
from  about  100  acres  on  sections  15  and  22 
lias  been  wont  to  gather,  and  for  this  surface 
drainage  and  the  waters  flowing  on  this  area 
there  is  no  other  way  of  escape  save  by 
the  swale  and  by  percolation  and  by  evapo- 
ration. 

Prior  to  1860  a  house  had  been  built  on 
section  22,  on  the  premises  now  owned  by 
complainant,  about  30  rods  south  of  the  sec- 
tion line,  and  about  midway  between  the  east 
and  west  ponds,  south  of  said  section  line, 
and  about  15  rods  south  thereof.  A  highway 
had  previously  been  built  on  the  line  be- 
tween sections  15  and  22,  and  this  highway 
was  graded  between  these  swales  a  few  inch- 
es above  the  general  surface  of  the  soil.  In 
grading  this  highway  a  log  culvert  was  put 
in,  so  that  the  water  might  pass  off  from 
section  22  to  the  north  into  the  swale  on 
section  15.  In  times  of  high  water  the  road 
was  inundated,  and  people  were  compelled  to 
go  through  the  fields,  or  to  drive  through 
considerable  water.  This  water,  however, 
passed  off  In  a  few  days  from  both  sides  of 
the  highway  by  percolation  and  evaporation, 
but  more  rapidly  on  the  north  side  of  the 
section  line.  Between  1860  and  1870  com- 
plainant's father  put  in  a  tile  drain  between 
his  house  and  the  highway,  extending  from 
one  swale  or  pond  to  the  other — that  is, 
from  what  is  called  the  east  swale,  or  pond, 
to  the  west  swale,  or  pond — so  as  to  carry  the 
water  from  the  swale  or  pon4  northeast  of 
the  dwelling  bouse  to  the  swale  or  pond 
northwest  of  the  dwelling  house.  This  tile 
extended  under  the  driveway,  which  ran 
from  the  public  highway  to  the  dwelling 
house.  Complainant's  father  then  filled  in 
♦he  ravine  in  front  of  what  is  now  the  com- 
plainant's bouse,  making  a  lane  and  driveway 


there.  The  tile  drain  extended  under  the 
highway,  which  was  subsequently  graded  to 
a  height  of  four  or  five  feet.  Witnesses  tes- 
tified that  s  plank  culvert  was  put  in  at  the 
time  that  the  road  was  graded  higher,  but 
this  seems  to  have  disappeared,  and  the  wa- 
ter has  followed  the  tile  drain  laid  by  com- 
plainant's father.  The  faU  in  this  tile  drain 
is  4  or  6  feet  In  S5  rods.  This  tile  drain 
remained  substantially  undisturbed  until 
1902,  when  the  Grand  Rapids,  Grand  Haven 
&  Muskegon  Railway  Company  built  its  road 
on  section  15,  north  of,  and  Immediately 
adjoining,  the  highway.  This  road  was  grad- 
ed to  about  level  with  the  highway,  and  a 
large  tile  culvert  was  put  through  the  em- 
bankment northerly  over  the  earlier  tile 
drain. 

In  1904  complainant  laid  off  his  land  on 
section  15,  for  residence  purposes  and  subur- 
ban homes,  Into  tracts  of  five  acres  each. 
One  of  these  parcels,  which  contained  the 
swale  or  pond  in  controversy,  was  sold  to 
Emery  Toogood.  On  this  parcel  sold  to  Too- 
good  there  was  a  high  and  dry  building  spot, 
and  Toogood  built  a  house  there.  The  land 
was  dry  at  the  time,  end  there  were  no  in- 
dications of  any  tile  running  under  the  rail- 
way track  on  this  land.  The  tile  was  below 
the  surface  of  the  ground,  and  the  ground 
had  been  cultivated,  but  the  end  of  said 
tile  drain,  and  the  last  tile  thereof,  extended 
into  an  open  ditch  some  6  Inches  or  a  foot 
l)eyond  the  earth  covering  the  remainder  of 
said  tile,  and  the  open  ditch  ran  to  the  north 
10  or  15  feet.  At  the  time  Mrs.  Dempsey 
bought  there  was  snow  on  the  ground,  and  at 
the  time  Mr.  Toogood  bought  this  swale  or 
pond  was  filled  with  quite  a  rank  growth  of 
vegetation.  At  the  time  of  the  purchase 
Toogood  did  not  go  down  into  the  low  ground, 
as  nothing  was  said  by  the  complainant 
about  the  tile  running  under  the  highway, 
and  part  of  bis  water  south  of  the  highway 
on  section  22  coming  onto  the  land  on  the 
north  side  of  the  highway  on  section  15;  nor 
was  anything  said  about  this  by  Mr.  Covell, 
the  complainant,  or  anybody  else,  and  Mr. 
Toogood  made  no  Inquiry  in  regard  to  it,  and 
therefore  Mr.  Toogood  knew  nothing  about 
it.  Mr.  Toogood  afterwards  cultivated  this 
land  and  plowed  it,  but  the  tile  was  below 
the  surface,  and  he  never  discovered  it.  Mr. 
Toogood  subsequently  sold  three  acres  of 
these  five  acres  to  Ida  May  Dempsey,  and  Ida 
May  Dempsey  subsequently  sold  one  acre  to 
Mrs.  Richards,  and  one  acre  to  Mrs.  Emma 
McCarthy.  Subsequently  Mrs.  Dempsey  oral- 
ly agreed  to  sell  the  parcel  of  one  acre  in 
which  the  tile  drain  ends,  and  in  which  a  por- 
tion of  the  swale  lies,  to  defendant  Bright, 
who,  after  this  oral  contract,  began  hauling 
sand,  and  succeeded  In  partially  filling  the 
tile  so  that  the  water  was,  to  a  large  extent, 
prevented  from  running  through,  before  the 
service  of  the  injunction  In  this  case.  Bright 
subsequently  abandoned  his  oral  contract  of 
purchase   with    Mrs.    Dempsey,    and    after 


Digitized  by 


Google 


MIchJ 


HUMPHREY  T.  HOLDEN. 


103 


micb  abandonment  Mrs.  Dempaey  went  upon 
tbe  premises  and  plugged  the  til9  with 
cement  concreta 

There  la  no  system  of  public  drainage  of 
any  sort  nor  any  pablic  sewer,  and  the  wa- 
ter gathers  in  these  two  swales  or  ponds  or 
swamps,  one  on  the  south  side  of  tbe  high- 
way, and  one  on  the  north  of  the  highway, 
and  the  swamp  on  the  north  side  of  tbe 
highway  being  a  little  lower  than  the  one 
on  tbe  south  aide,  if  not  interrupted,  would 
gather  more  water  when  tbe  tile  is  stopped 
np,  and  the  stopplng-up  of  the  tile  prevents 
tbe  water  from  the  south  side  from  coming 
onto  tbe  north  side  of  the  highway  to  a  cer- 
tain extent,  but  when  the  water  gets  high 
enough  to  pass  through  the  tile  under  tbe 
right  of  way  of  the  Interurban  railway  com- 
pany, it  still  continues  to  flow  onto  tbe  north 
elde  onto  the  land  owned  by  tbe  said  Ida 
May  Dempsey,  but  the  stopping  of  the  tile 
baa  caused  the  water  to  stand  in  the  swamp 
on  the  south  side  of  the  highway  longer 
than  it  otherwise  would,  but  both  pieces  of 
land  become  dry  during  tbe  summer.  The 
complainant,  Covell,  knew  at  the  time  be 
sold  to  Elnery  Toogood  that  said  property 
was  bought  for  the  purpose  of  building  there- 
on suburban  homes.  He  gave  to  said  Too- 
good  a  warranty  deed,  with  full  covenants, 
and  free  and  clear  from  all  incumbrances. 

The  court  dismissed  complainant's  bill  for 
an  injunction  and  damages,  and  complain- 
ant has  appealed  to  this  court  It  Is  clear 
that  this  record  does  not  present  a  case  of 
interference  with  tbe  flowage  of  a  natural 
water  conrse  or  with  the  natural  flowage 
of  surface  waters.  Tbe  right  to  discbarge 
tbe  waters  from  section  22  upon  section  15 
through  tbe  artificial  drain  was  a  prescrip- 
tlve  right  The  question,  therefore,  for  our 
considerati<m  is  whether  defendant  Toogood, 
notwithstanding  his  full  covenant  warranty 
deed,  took  the  lands  conveyed  burdened  with 
this  prescriptive  right  To  entitle  the  com- 
plainant to  a  decree  tbe  burden  was  upon  him 
to  establish  that  tbe  servitude  was  apparent 
continnotis,  and  strictly  necessary  to  tbe  en- 
joyment of  bis  lands.  14  Cyc.  1169;  Carbrey 
V.  Willis,  7  Allen  (Mass.)  364,  83  Am.  Dec. 
6S8:  White  y.  Chapln,  97  Mass.  101;  Cros- 
land  V.  Rogers,  32  S.  C.  130,  10  S.  E.  874; 
Dolllft  V.  By.  Co..  68  Me.  173;  Butterworth 
v.  Crawford,  46  N.  Y.  349,  7  Am.  Rep.  352; 
Treadwell  v.  luslee,  120  N.  Y.  458,  405,  24  N. 
E.  651;  Wells  ▼.  Garbutt,  132  N.  Y.  430,  435, 
30  N.  E.  978.  We  are  of  tbe  opinion  that 
complainant  did  not  establish  by  a  prepon- 
derance of  the  evidence,  either  that  the  ex- 
istence of  the  subterranean  drain  was  so  ap- 
parent that  defendant  Toogood  was  charge- 
able with  notice  thereof,  or  that  it  was  neces- 
sary to  the  enjoyment  of  his  property. 

The  decree  is  affirmed,  with  costs  to  de- 
fendants. 


HUMPHREY  ▼.   HOUJEN   et   al. 

(Supreme  Court  of  Michigan.     July  0,  1009.) 

SaI.es    (J   75*)— COKTBACTS— CONSTBTJCnON. 

Defendant  purchased  the  plant  and  all  the 
assets  of  a  corporation  at  a  receiver's  sale,  and 
agreed  to  sell  plaintiff  all  bookcases  made  by 
the  plant  plaintiff  to  pay  for  such  articles 
10  per  cent,  above  the  cost  of  manufacture, 
said  cost  to  include  cost  of  raw  material,  riin- 
ning  of  plant,  management,  labor,  and  salaries, 
etc.  Held,  that  the  contract  covered  the  actual 
cost  of  the  manufacture,  and  did  not  give  plain- 
tiff the  benefit  of  the  purchase  made  by  defend- 
ant at  the  receiver's  sale. 

[Ed.  Note.— For  other  cases,  see  Sales,  Dec 
Dig.  i  75.  •] 

Appeal  from  Circuit  Court  Wayne  County, 
in  Chancery;  Henry  A.  Mandell,  Judge. 

Action  by  Edwin  H.  Humphrey  against 
Ellsworth  A.  Uolden  and  another.  Judgment 
for  defendants,  and  plaintiff  appeals.  Af- 
firmed. 

Argued  before  GRANT,  MONTGO.MERY, 
OSTRAXDER,  HOOKER,  and  MOOUE,  JJ. 

Standlsh  Backus  and  Richard  G.  Kirchner 
(Otto  Kirchner,  of  counsel),  for  appellant. 
RolUn  H.  Person  and  Raudabaugh  &  Per- 
son, for  appellees. 


MOORE,  J.  Prior  to  1004  the  Peninsular 
Manufacturing  Company,  Limited,  was  en- 
gaged in  the  manufacture  of  sectional  book- 
case.s  at  Ann  Arbor,  Mich.  The  complain- 
ant in  tbls  case  handled  Its  output  He  also 
loaned  it  some  money,  Tbe  defendant  Hol- 
den  also  loaned  money  to  said  company  until 
It  owed  him  about  $10,000.  The  company 
bad  financial  difficulties  and  passed  Into  the 
hands  of  a  receiver,  who  continued  for  a 
time  to  operate  the  plant  Later  the  plant 
and  all  of  tbe  assets  of  tbe  company  wei-e 
sold  by  the  receiver,  and  Mr.  Holden  bid 
in  tbe  property  at  the  sum  of  $6,300.  Nego- 
tiations were  had  between  the  complainant 
and  Mr.  Holden  for  tbe  purchase  of  tbe  out- 
put of  the  plant  by  complainant  in  the  ex- 
pectation that  a  company  would  be  organiz- 
ed to  continue  the  manufacture  of  tbe  goods. 
In  July,  1004,  a  written  proposition  was 
made  by  Mr.  Holden  to  Mr.  Humphrey  offer- 
ing to  sell  him  all  tbe  sectional  bookcases 
made  by  the  plant  This  offer  was  accepted 
in  writing.  The  parties  acted  under  the 
contract  Later  differences  arose  as  to  the 
construction  of  the  contract,  and  this  litiga- 
tion was  commenced.  Upon  the  trial  of  the 
case  the  following  stipulation  was  entered 
into:  "The  parties  to  this  suit  have  agreed 
upon  the  items  which  should  be  charged  un- 
der the  contract  set  out  In  paragraph  3  of 
complainant's  bill  in  this  case  as  'cost  of 
manufacture'  therein  mentioned  of  all  sec- 
tional bookcases  furnished  by  the  manufac- 
turer under  said  contract  and  referred  to  in 
the  pleadings  in  this  suit  except  as  to  the 
two  items  entering  therein   and  mentioned 


•For  other  cases  see  saiii*  topic  and  section  NUMBER  in  Dec.  *  Am.  Digs.  1907  to  date,  A  Raporter  ladext* 


Digitized  by 


Google 


104 


122  NORTHWESTERN  REPORTER. 


(Micb. 


In  the  schedules  of  paragraph  2  of  complain- 
ant's bill,  to  wit,  "raw  material  In  stock'  and 
'merchandise  (Peninsular  bookcases),'  and 
it  was  agreed  between  the  parties  that  If  the 
two  items  sbonld  be  charged  In  said  'cost  of 
manufacture'  at  a  proportionate  part  of  the 
purchase  price  at  receiver's  sale  as  set  out 
In  the  second  schedule  in  paragraph  2,  to 
wit,  'raw  material  on  hand,'  at  $651.45  and 
'merchandise'  (Peninsular  bookcases)  at 
$901.68,  as  claimed  by  complainant,  then 
there  has  been  paid  to  the  manufacturer  the 
sum  of  $2,565.15  above  the  'cost  of  manufac- 
ture,' with  ten  per  cent,  added  thereto.  On 
the  other  hand.  If  such  two  items  Rhould  be 
charged  in  'cost  of  manufacture,'  at  their 
inventory  value,  as  set  forth  In  said  para- 
graph 2  (which  defendants  claim  should  be 
done),  then  there  is  yet  due  to  the  manufac- 
turer, in  order  that  the  payments  should 
amount  to  ten  per  cent  above  the  'cost  of 
manufacture,'  the  sum  of  $2,637.26.  It  is 
further  admitted  that  the  complainant  is  en- 
titled to  a  decree  against  the  defendant  for 
the  sum  of  $560.32,  which  must  be  added  to 
the  amount  of  the  decree,  if  any,  in  his  fa- 
vor, and  must  be  deducted  from  the  amount 
of  any  decree  which  may  be  entered  ftgalnst 
him.  The  above  Items  include  Interest  to 
date."  The  language  of  the  contract  causing 
the  trouble  is  as  follows:  "You  to  pay  for 
such  articles  at  ten  per  cent,  above  cost  of 
manufacture,  f.  o.  b.  at  Ann  Arbor.  The 
said  cost  Is  to  Include  cost  of  raw  material, 
running  of  plant,  management,  labor  and 
salaries,  taxes,  Insurance,  etc." 

It  Is  the  contention  of  the  complainant 
that  the  contract  should  be  so  construed  as 
to  give  him  the  benefit  of  the  purchase  made 
by  Mr.  Holden  at  the  forced  sale  made  by 
the  receiver.  It  Is  the  contention  of  defend- 
ants that  the  contract  should  be  so  construed 
as  to  cover  the  actual  coat  of  the  manufac- 
ture. The  circuit  Judge  before  whom  the 
case  was  tried  found  In  favor  of  the  conten- 
tion of  defendant,  and  dismissed  the  bill. 
The  case  is  brought  here  by  appeal. 

The  case  presented  to  us  does  not  call  for 
any  extended  discussion.  We  think  it  very 
clear  from  the  language  of  the  contract  that 
a  proper  decree  was  entered  in  the  court  be- 
low. 

The  case  Is  affirmed,  with  costs. 


HAMILTON  V.   DEINZER  et  al. 

(Supreme  Conrt  of  Michigan.    .July  6,  1900.) 

Appeal   and   Ebbob    (J    1001*)— Findings— 

Conclusiveness. 

The  findings  supported  by  a  preponderance 
of  the  evidence  will  not  be  disturbed  on  appeal. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  H  3022,  8028-3934;  Dec. 
Dig.  I  1001.*] 

Appeal  from  (Circuit  Court  Wayne  Coun- 
^,  in  Chancery;   Alfred  J.  Murphy,  Judge. 


Suit  by  Jamea  Hamilton  against  FrederidE 
Deinzer  and  others.  From  the  decree  ren- 
dered, complainant  and  defendant  Frederick 
W.  Blederman  appeal.    Affirmed. 

Argued  before  GRANT,  MONTGOMEJRY, 
OSTRANDER,  HOOKER,  and  MOORE,   JJ. 

May  &  Dlngeman,  for  appellant  Hamlltoxi. 
Graves,  Hatch  &  Wasey,  for  appellant  Bled- 
erman. 

OSTRANDER,  J.  The  case  presents  Is- 
sues of  fact  only.  The  situation  as  Indi- 
cated by  the  pleadings  is  a  somewhat  com- 
plicated one,  and  an  analysis  of  the  testimo- 
ny does  not  bring  the  mind  easily  to  satis- 
factory conclusions  respecting  the  rights  of 
the  parties  litigant  The  contention  wblcb 
the  complainant  as  appellant  makes  Is  that 
the  court  below  should  have  concluded  that 
the  defendants  Deinzer  are  stockholders  (In 
excess  of  one  share  each),  and  are  not  cred- 
itors of  the  Excelsior  Manufacturing  Com- 
pany. Defendant  Blederman  appeals  from 
that  portion  of  the  decree  which  adjudges 
him  to  be  a  stockholder  In  said  company, 
and  requires  him  to  pay  for  the  shares  actu- 
ally subscribed  for  by  him.  It  will  profit  no 
one  to  set  out  the  testimony. 

We  find  a  preponderance  in  support  of  the 
conclusions  reached  below,  and  affirm  the 
decree.  The  defendants  Deinzer  will  recov- 
er of  complainant  the  cost  of  printing  their 
brief  and  the  usual  solicitor's  fee.  The  cost 
of  printing  the  record  will  be  equally  divided 
between  the  appellants  Hamilton  and  Bleder- 
man.   No  other  costs  are  awarded. 


STEGER  v;  IMMEN. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

NEOLIOENOE    ({     67*)— CONTBIBUTOBT    NBGLI- 
OENCE. 

A  person,  visiting  a  tenant  on  the  fourth 
floor  of  a  flat  building,  had  previously  used  a 
water  closet  on  the  floor  below,  andi  borrowing 
a  key  from  the  tenant,  assumed  without  in- 
qoiries  that  there  was  a  closet  on  that  floor 
also,  in  the  same  relative  position  as  the  one 
below,  groped  his  way  into  a  dark  corridor, 
and,  finding  a  door  unlocked,  opened  it,  and 
stepped  into  the  dark  opening  falling  down 
a  shaft  to  the  basement  H»ld,  that  ne  was 
negligent,  barring  recovery. 

[Ed.  Note.— For  other  cases,  see  Negligence, 
Dec  Dig.  S  67.*] 

Error  to  Superior  Qourt  of  Grand  Rapids; 
William  J.  Stuart  Judge. 

Action  by  Otto  F.  Steger  against  Loraine 
Immen,  special  administratrix  of  Frederick 
Immen.  A  demurrer  to  the  declaration  was 
sustained,  and  plalntlll  brings  error.  Af- 
firmed. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Dunham  &  Dunham,  for  appellant  Car- 
roll &  Nichols,  for  appellee. 


•For  oUier  cues  le*  same  toplo  and  section  NUMBER  la  Dec.  ft  Am.  Digs.  VXn  to  data,  ft  Reportar  InduM 


Digitized  by 


Google 


HlClL) 


<8TE0ER  V.  lUUEN. 


106 


MONTGOMERT,  X  This  actios  was 
brought  against  Frederick  Immen  In  his  life- 
time, and  has  been  revived  In  the  name  of 
the  special  administratrix.  The  case  was 
disposed  of  on  demurrer  to  the  declaration. 
The  demurrer  having  been  sustained,  the 
plalntUC  brought  error.  The  action  was  to 
recover  damages  for  a  personal  Injury,  al- 
leged to  have  resulted  from  the  defendant's 
negligence. 

In  brief  the  declaration  avers  that  the  de- 
fendant was  owner  of  a  building  In  the  city 
of  Grand  Rapids,  known  as  "The  Loralne." 
It  was  a  flve-story  tenement  flat.  From  the 
npper  story  to  the  basement  there  was  a 
shaft  of  about  2  feet  by  2^  feet  in  size,  In 
which  was  a  dumb  waiter,  used  for  the  pur- 
pose of  transporting  Ice  and  other  products 
from  the  basement  of  the  building  to  the  sev- 
eral floors  of  the  block.  On  the  third  floor 
of  this  buUdlng  there  was.  Immediately  ad- 
jacent to  the  shaft,  a  water  closet,  which,  on 
previous  visits  to  the  building,  the  plaintiff 
had  made  use  of  by  borrowing  a  key  from 
the  occupant  On  the  fourth  floor  there  was 
no  such  water  closet  The  plaintiff  avers 
that  on  the  23d  of  August,  he  was  a  visitor 
at  the  rooms  of  one  of  the  occupants  of  the 
block  on  the  fourth  floor,  a  tenant  of  the 
defendant  and  that,  having  occasion  to  visit 
the  water  closet,  he  borrowed  the  key  to  the 
closet  and  without  inquiry,  so  far  as  it  ap- 
pears, as  to  where  the  water  closet  was  lo- 
cated which  this  key  was  to  fit,  assumed  that 
he  would  flnd  one  on  the  fourth  floor.  In  the 
same  relative  position  as  that  which  he  had 
used  on  the  third  floor.  He  went  to  the  vi- 
cinity where  such  water  closet  would  be  lo- 
cated, according  to  his  assumption,  and,  flnd- 
ing  a  door,  which  in  fact  is  described  as 
about  2  feet  by  6  feet  6  inches,  he  attempted 
to  open  the  same  with  the  key,  but,  discover- 
ing that  the  same  was  unlocked,  he  opened 
the  door,  stepped  through  the  doorway,  and 
fell  into  this  shaft  to  the  basement  and  re- 
ceived injuries.  The  declaration  avers  that 
the  hall  on  the  fourth  floor  where  this  shaft 
was  located  was  not  properly  lighted ;  "that 
It  was  dark;  that  he  entered  said  short  hall 
extending  from  the  main  hall  on  said  fourth 
floor  to  the  west  side  of  said  building,  as  he 
supposed  that  there  was  a  water  closet  In 
said  hallway  directly  over  the  one  on  the 
third  floor,  and,  coming  to  a  door  in  the  wall 
of  said  small  hall,  and  nearly  directly  above 
the  door  in  the  water  closet  In  the  hall  be- 
low, undertook  to  insert  the  key  so  given 
him  by  said  tenant  into  the  lock  of  said  door, 
believing  it  to  be  the  door  of  a  water  closet, 
and  found  said  door  unlocked  and  open,  and 
in  no  manner  fastened,  and  plaintiff  took 
hold  of  the  knob  of  said  door,  and  pulled  It 
open  so  he  could  step  in,  plaintiff  believing 
that  he  was  at  the  door  of  a  water  closet 
but  Instead  thereof  stepped  into  said  open 
well  or  shaft  known  and  used  as  a  dumb 
waiter,  and  in  so  doing  fell  down  said  fourth 
floor  to  the  basement  of  said  building,  a  dis- 


tance of  about  50  feet"  The  declaration  fur- 
ther avers  that  the  plaintiff  was  in  the  build- 
ing at  the  Invitation  of  one  of  the  tenants, 
who  was  occupying  room  O  on  said  fourth 
floor. 

The  two  questions  which  are  presented  are: 
First,  whether  the  defendant  owed  the  plain- 
tiff any  duty  In  the  premises,  or  whether  he 
is  to  be  treated  as  a  mere  licensee;  and,  sec- 
ond, whether  the  declaration  shows  that  the 
plaintiff  was  himself  wanting  in  due  care. 
We  tnlnk  the  case  should  be  controlled  by  a 
determination  of  the  latter  question.  Assum- 
ing for  the  purposes  of  this  case,  without  de- 
ciding, that  the  plaintiff  was  under  these  cir- 
cumstances entitled  to  the  rights  of  one  In- 
vited upon  the  premises,  we  are  agreed  In 
the  opinion  that  he  was  himself  guilty  of 
such  want  of  care,  under  the  circumstances 
shown  lo  this  declaration,  as  to  preclude  re- 
covery. He  had  no  knowledge  that  there  was 
in  fact  any  water  closet  on  the  fourth  floor, 
and  indeed  such  was  not  the  fact  We  flnd  a 
case,  then,  where  he  assumed  that  to  exist 
which  did  not  exist,  and  groped  his  way  in 
the  dark,  found  a  closet  door,  which  he  open- 
ed without  taking  the  trouble  of  striking  a 
match  or  making  any  investigation,  and  step- 
ped into  darkness,  which  resulted  in  his  In- 
Jury. 

The  case  of  Gaffney  v.  Brown,  160  Mass. 
479,  23  N.  B.  233,  Cited  in  defendant's  brief, 
is  very  much  in  point  In  that  case  a  plain- 
tiff, who  had  entered  the  dining  room  of  de- 
fendant by  the  usual  door  to  which  she  was 
accustomed,  who  had  dined  at  a  table  far- 
ther in  the  rear  of  the  apartment  in  which 
she  took  her  meals,  opened  a  door  in  the 
side  of  the  apartment  for  the  purpose  of  re- 
tiring therefrom.  This  door  was  not  in  any 
way  indicated  as  a  mode  of  egress;  and, 
without  observing  whither  she  was  going, 
or  paying  any  heed  to  her  steps,  she  walked 
directly  over  the  threshold,  and  was  thus  pre- 
cipitated down  a  flight  of  stairs  leading  to 
the  cellar,  to  which  the  doorway  directly 
led.  The  court  say:  "While  there  was  no 
sign  Indicating  that  this  door  was  not  to  be 
used,  and  that  no  person  was  to  enter  or  de- 
part thereby,  the  plaintiff  must  have  been 
aware  that  such  an  apartment  would  proba- 
bly have  doors  leading  to  closets,  to  upper  or 
other  apartments,  or  even  the  cellar.  She 
had  been  in  the  apartment  before,  and  knew 
the  usual  egress  therefrom.  If  she  thought 
it  possible  that  the  door  which  she  opened 
might  lead  to  the  hall  or  entry,  and  be  in- 
tended as  a  mode  of  egress.  It  was  certainly 
her  duty  to  look  where  she  was  stepping  be- 
fore she  advanced  across  the  threshold.  She 
had  no  right  to  act  unreservedly,  upon  the 
belief  that  the  door  would  necessarily  be 
locked,  unless  intended  for  egress.  According 
to  common  knowledge  and  experience,  her 
conduct,  in  this  respect  was  careless." 

The  case  of  Massey  v.  Seller,  45  Or.  267, 
77  Pac.  397,  is  still  more  strongly  in  point. 
In  that  case  it  appeared  that  the  plaintiff, 


Digitized  by  VjOOQ  l€ 


106 


122  NORTHWESTERN  REPORTER. 


(Micbu 


approaching  the  onter  door  of  defendant's 
premises,  observing  "this  dark  place,"  as  he 
termed  It,  and  wanting  to  find  a  water  closet 
walked  Into  an  elevator  shaft,  without  knowl- 
edge of  its  existence.  He  testified:  "It  was 
a  dark,  desolate  looking  place.  It  was  a 
dark  corner,  and  1  went  back  once  before  to 
Just  about  such  a  place,  and  found  a  water 
closet,  *  *  •  and  I  thought  from  the 
looks  of  it  there  might  be  a  closet  there. 
•  •  •  I  was  not  looking  for  a  trapdoor  to 
fall  In,  but  I  could  see  nothing."  The  court 
say:  "If  it  was  so  dark  in  there  that  he 
could  'see  nothing,'  it  was  certainly  an  act 
of  folly  on  his  part  to  enter  on  a  cruise  of  ex- 
ploration and  discovery  without  stopping  to 
determine  whether  it  was  safe  to  proceed. 
To  bolt  headlong  into  a  place  little  known, 
and  where  the  senses  cannot  take  note  of  it, 
is  not  the  act  of  a  prudent  man,  and  there 
Is  no  chance  for  any  other  inference  or  de- 
duction concerning  it  Reasonable  minds 
could  not  come  to  any  other  conclusion  touch- 
ing It,  so  that  there  is  nothing  for  the  Jury 
to  determine,  and  the  trial  court  very  prop- 
erly declared  the  result  as  a  matter  of  law." 
The  case  was  certainly  as  strong  for  the 
plaintiff  as  is  the  present  In 'the  present 
case  there  was  no  knowledge  on  the  part  of 
the  plaintiff  that  there  was  a  water  closet  in 
the  vicinity  of  this  shaft.  In  fact  there  was 
none.  Bis  exploration  was  based  upon  the 
assumption  that  because  such  a  closet  was 
to  be  found  on  the  floor  l>elow,  he  would  be 
likely  to  find  one  In  this  place.  Finding 
himself,  therefore,  in  the  vicinity  of  where 
the  assumed  water  closet  was  supposed  to 
be  located,  he  opened  this  door  in  the  dark, 
stepped  Into  darkness,  and  received  the  in- 
Jury.  A  dearer  case  of  contributory  negli- 
gence could  not  well  be  stated.  See,  also, 
Bedell  v.  Berkey,  76  Mich.  435,  43  N.  W.  308, 
15  Am.  St  Rep.  370,  and  Hutchins  v.  Priest- 
ly, 61  Mich.  252,  28  N.  W.  85. 

The  correct  conclusion  was  reached  by  the 
trial  court  and  the  Judgment  Is  affirmed. 


ROBINSON  ▼.   HARMON. 
(Supreme  Court  of  Michigan.     July  6,  1900.) 

Statutes  (§§  241,   243*)  —  Constroction  — 
Remedial  and  Penal  Statute. 

A  statute  which  is  remedial  as  well  as 
penal  may  receive  a  liberal  construction  as 
lor  the  purpose  of  the  remedy,  hut  to  the  ex- 
tent that  it  operates  against  the  offender,  it 
must  be  construed  strictly. 

[Ed.    Note.— For    other    cases,    see    Statutes, 
Cent.  Dig.  {f  322-324;   Dec.  Dig.  §§  241,  243.*] 
McAlvay,  J.,  dissenting. 

On  rehearing.  Former  opinion  and  Judg- 
ment below  affirmed. 

For  former  opinion,   see  117  N.  W.   6G4. 

Argued  before  BLAIR,  C.  J.,  and  GRANT. 
MONTGOMERY,  OSTRANDER,  HOOKER, 
MOORE,  McAI^VAY,  and  BROOKE,  JJ. 


OSTRANDER,  J.  The  former  opinion  of 
this  court  In  this  case  Is  reported  in  117 
N.  W.  664.  A  rehearing  was  granted,  and 
the  case  has  again  been  carefully  consider- 
ed. The  statute  (Comp.  Laws,  {  6234,  subd. 
7)  establishes  a  maximum  rate  for  transport- 
ing freight  by  the  car.  A  violation  of  this 
provision  is  asserted  by  plaintiff,  whose 
right  to  maintain  this  suit  is  based  upon  the 
succeeding  section  of  the  statute,  whi'cli 
reads:  "(6235)  Sec.  10.  Every  such  corpora- 
tion shall  furnish  sufficient  accommodation 
for  the  transportation  of  all  such  passengers 
and  property  as  shaU,  within  a  reasonable 
time  previous  thereto,  offer  or  be  offered 
for  transportation  at  the  place  of  starting, 
and  the  Junctions  of  other  railroads,  and  at 
siding  and  at  stopping  places  established 
for  discharging  and  receiving  way  passen- 
gers and  freight;  and  shall  take,  transport 
and  discharge  such  passengers  and  proper- 
ty at  from,  and  to  such  places,  on  the  due 
payment  of  toll,  freight,  or  fare,  legally  au- 
thorized therefor;  and  every  such  corpora- 
tion shall  transport  merchandise,  wood,  luna- 
ber,  and  other  property,  and  persons  from 
the  various  stations  upon  said  road,  with- 
out partiality  or  favor,  when  not  otherwise 
directed  by  the  owner  of  said  property,  and 
with  all  practicable  dispatch,  and  In  the 
order  in  which  such  freight  and  property 
shall  have  been  received,  under  a  penalty 
for  each  violation  of  this  provision,  of  one 
hundred  dollars,  to  be  recovered  by  the 
party  aggrieved,  in  an  action  of  debt  against 
such  corporation:  Provided,  That  perishable 
or  explosive  freight  and  property  shall  have 
the  preference  over  all  other  classes  of  mer- 
chandise. In  case  of  the  refusal  by  such 
corporation  or  agents  so  to  take  and  trans- 
port any  such  passenger  or  property,  as 
aforesaid,  or  to  deliver  the  same,  or  either 
of  them,  without  a  legal  or  Just  excuse  for 
such  default  such  corporation  shall  pay  to 
the  party  aggrieved  all  damages  which  shall 
be  sustained  thereby,  with  costs  of  suit 
or  the  penalty  prescribed  In  this  section,  at 
the  election  of  the  party  aggrieved."  The 
defendant  Is  a  receiver  of  the  railroad  ap- 
pointed by  a  federal  court  We  are  satis- 
fled  that  no  legal  or  Just  excuse  for  the 
overcharge  complained  about  was  made, 
and  that  the  single  question  presented  is 
whether  the  receiver  Is  liable  to  the  penalty 
Imposed  by  the  statute.  It  Is  said  in  the 
former  opinion  that  this  "is  not  a  penal 
statute,  strictly  speaking,  but  is  remedial 
in  its  effect";  and  this  is  held  to  distinguish 
the  case  at  bar  and  U.  S.  v.  Harris,  177 
U.  S.  305,  20  Sup.  Ct  C09,  44  L.  Ed.  780. 
It  Is  also  said  in  the  opinion  that  "the  stat- 
ute is  no  more  penal  in  its  natui-e  than  those 
which  provide  for  the  doubling  of  damages 
in  case  of  stock  injured  by  railroad  cor- 
porations, which  have  neglected  to  properly 
fence  their  right  of  way."    It  was  said  by 


•For  otber  cases  see  same  topic  and  section  NUMDER  In  Dec.  &  Am.  Digs.  1907  to  date,  &  Ueporter  Indexes 


Digitized  by  VjOOQ  l€ 


MldL) 


MoQUISTBN  ▼.  DETROIT  CITIZENS'  ST.  BY,  CO. 


107 


tbia  coart  of  a  statute  doubling  damages: 
"Tbe  language  and  spirit  of  the  act  exclude 
the  supposition  that  tbe  Legislature  Intended 
compensation  or  anything  of  the  nature  of 
recompense  to  tbe  Injured  party  In  allowUig 
the  extra  amount,  since  the  single  damages 
provided  for  were  'all  tbe  damages  done,' 
and  tf,  as  single  damages,  the  party  obtained 
'all  tbe  damages,'  his  recovery  beyond  that 
must  embrace  something  not  strictly  dam- 
ages at  all.  Tbe  name  given,  therefore,  to 
this  excess  by  the  statute  cannot  alter  its 
intrinsic  character  and  transform  a  penalty 
for  punishment,  Into  a  mere  recompense; 
neither  can  the  circumstance  that  the 
amount  above  the  whole  damages,  when  re- 
covered, would  pass  to  the  plaintiff,  and  not 
to  the  public,  alter  Its  nature  and  convert 
It  Into  a  private  personal  claim  absolutely 
inextinguishable  by  repeal  before  judgment." 
Bay  City,  etc.,  R.  R.  Co.  v.  Austin,  21  Mich. 
330,  411.  And  in  Crosby  v.  Pere  Marquette 
B.  R.  Co.,  131  Mich.  288,  91  N.  W.  124,  and 
in  Van  Camp  v.  Michigan  Cent.  R.  R.  Co.,  137 
Mich.  467,  100  N.  W.  771,  the  statute  we  ore 
conslderldg  is  called,  and  treated  as,  a  penal 
statute.  It  Is  evident  that  the  sum  of  $100 
which  may  be  recovered  for  violation  of  the 
statute  may  bear  no  relation  whatever  to 
the  actual  damage  suffered  by  the  plaintiff. 
The  case  is  unlike  U.  8.  v.  Harris,  supra, 
in  this:  In  that  case  the  penalty  was  im- 
posed by  a  statute  entitled  "An  act  to  pre- 
vent cruelty  to  animals  while  in  transit  by 
railroad  or  other  means  of  transportation 
wltliin  the  United  States."  It  was  recov- 
erable by  the  United  States  from  "any  com- 
pany, owner  or  custodian  of  such  animals 
wbo  knowingly  and  willingly  falls  to  comply 
with  the  provisions.    '•    •    * " 

It  was  held  that  receivers  were  not  with- 
in tlie  letter  of  the  statute,  and  not  necessa- 
rily within  its  purpose  or  spirit.  The  stat- 
ute we  are  considering  is  the  charter  of  the 
company  which  tbe  receiver  managed  and 
coatrolled.  The  penalty  Is  recoverable  by 
and  is  for  the  benefit  of  a  party  aggrieved. 
Tbe  statute  gives  a  private  right  enforced 
by  a  private  cItU  action.  In  this  respect  it 
is  remedial  as  well  as  penal.  The  public 
is  not  concerned.  A  liberal  construction 
for  the  purpose  of  tbe  remedy  may  be  in- 
dulged, but  to  the  extent  that  it  operates 
against  the  offender  it  must  be  construed 
strictly.  Sutherland,  Stat  Cons,  i  532  et 
seq.  The  penalty  Is  by  tbe  terms  of  the 
statute  imposed  upon  tbe  corporation,  and 
is  recoverable  in  an  action  of  debt  brought 
against  it.  The  receiver  is  not  tbe  corpora- 
tion nor  its  agent,  but  is  upon  the  theory  of 
tbe  plaintiff  the  one  who  has  incurred  tbe 
penalty.  It  cannot  be  said  as  matter  of 
la^  that  tbe  receiver  may  charge  the 
amount  of  this  penalty  in  bis  accounts,  and 
bave  tbe  same  allowed  by  tbe  court  ap- 
polntlug  him.    An  act  of  Congress  provides 


that  a  receiver  appointed  by  a  federal  court 
shall  operate  property  committed  to  bis 
cliarge  according  to  the  requirements  of  tbe 
valid  laws  of  the  state  in  which  such  prop- 
erty shall  be  situated,  in  tbe  same  manner 
that  the  owner  or  possessor  thereof  would 
be  bound  to  do  if  in  possession  thereof. 
A  penalty  is  provided  for  violating  this 
provision  which  is  made  a  misdemeanor. 
We  are  unable  to  distinguish  the  case  in 
principle  and  the  case  of  U.  S.  t.  Harris, 
supra.  We  reach  the  conclusion  that  the 
receiver  is  not  liable,  and  that  the  judgment 
against  him  should  be  reversed,  and  no  new 
trial  granted.  This  conclusion  is  supported 
by  authority.  M.,  K.  &  T.  Ry.  Co.  v.  Ston- 
er,  5  Tex.  Civ.  App.  50,  23  S.  W.  1020; 
Campbell  v.  Wless  (Tex.)  25  S.  W.  1076; 
16  Am.  &  E.  Ency.  PI.  ft  Pr.  263. 

BLAIR,  C.  J.,  and  GR.4.NT,  MONTGOM- 
ERY, HOOKER,  MOORE,  and  BROOKE, 
JJ.,  concurred  with  OSTRANDER,  J. 

McALVAY,  J.  I  adhere  to  my  former 
opinion  for  affirmance. 


MoQUISTBN  T.  DETROIT  CITIZENS'   ST. 

BY.  CO. 
(Supreme  Court  of  Michigan.     July  9,  1909.) 

Appkal  and  Ebbob  (§  1195*)— Law  of  the 
Case— (}ONTBIBUT0BT  Neouobnce. 

Where  an  action  for  personal  injuries  has 
been  twice  reversed  on  the  theory  that  the 
question  of  contributory  negligence  was  for 
the  jury,  on  a  third  trial  in  which  the  evi- 
dence is  Bubstantially  the  same  that  contribu- 
tory negligence  was  for  the  jury  is  the  law 
of  tbe  case. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  4661 ;   Dec.  Dig.  i  1193.*] 

Error  to  CJlrcuit  Court,  Wayne  County; 
George  S.  Hosmer,  Judge. 

Action  by  William  D.  McQulsten,  adminis- 
trator of  the  estate  of  Peter  Trudell,  de- 
ceased, against  the  Detroit  Citizens'  Street 
Railway  Company.  From  a  judgment  for 
plaintiff,  defendant  brings  error.     Affirmed. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRAKDETR.  HOOKER,  and  MOORE,  JJ. 

Brennan,  Donnelly  &  Van  De  Mark,  for 
appellant    William  Look,  for  appellee. 

GRANT,  J.  This  case  is  before  us  for  the 
third  Ume.  147  Mich.  67,  110  N.  W.  118; 
150  Mich.  332,  113  N.  W.  1118.  Upon  the 
first  trial  the  case  was  considered  so  doubt- 
ful by  the  trial  judge  that  It  was  agreed 
that  the  judge  might,  if  the  jury  should  find 
for  tbe  plaintiff,  set  aside  the  verdict  and 
render  judgment  for  defendant  if  upon  fur- 
ther consideration  he  concluded  that  judg- 
ment should  have  been  rendered  for  the  de- 
fendant That  case  was  reversed,  holding 
that  the  question  of  contributory  negligence 


•For  otber  cue*  a«e  (ame  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  U07  to  date,  &  Reporter  IndexA* 


Digitized  by  VjOOQ  l€ 


108 


122  NORTHWESTERN  REPORTER. 


(MIciL 


was  for  the  Jury.  The  judgment  then  ren- 
dered In  this  court  was  so  modified  as  to 
permit  a  review  of  the  questions  raised  up- 
on writ  of  error.  This  court  again  held  that 
the  question  of  contributory  negligence  was 
for  the  Jury,  although  It  was  said  that  the 
evidence  of  contributory  negligence  was  so 
strong  that  the  trial  Judge  might  well  con- 
sider it  near  the  line  of  cases  holding  that 
contributory  negligence  Was  conclusively  es- 
tablished. 

The  record  now  before  us  contains  the 
same  evidence  as  that  produced  on  the  first 
trial,  and,  In  addition,  that  of  two  witnesses, 
not  sworn  upon  the  first  trial,  one  of  whom 
was  produced  by  plaintiff  and  the  other  by 
defendant  The  Jury  again  rendered  a  ver- 
dict for  the  plaintiff  for  $2,750.  Again  coun- 
sel for  the  defendant  contends  that  contrib- 
utory negligence  was  conclusively  established. 
The  additional  witness  for  plaintiff  was  a 
teamster,  driving  a  team  on  the  road  about 
60  feet  ahead  of  the  others,  who  stopped  be- 
side the  well  to  water  their  horses.  He  lo- 
cated the  car  300  feet  or  more  away  when 
the  deceased  started  with  his  pail  of  water 
across  the  track,  and  testified  that  the  de- 
ceased was  hit  almost  Instantly  as  he  step- 
ped upon  the  track.  The  other  was  a  wit- 
ness for  the  defendant,  and  testified  that 
he  was  a  passenger  on  the  car,  and  stood 
looking  out  of  the  front  window  as  the  car 
approached  the  place  of  the  accident  He 
testified  that  the  car  was  within  about  16 
feet  of  deceased  when  he  picked  up  the  pall 
of  water,  and  made  two  or  three  steps  onto 
the  tra(&.  The  testimony  of  these  two  wit- 
nesses, placed  in  the  most  favorable  light 
for  the  defendant,  is  merely  cumulative.  The 
two  do  not  agree  as  to  the  position  of  the  car 
when  the  deceased  started  to  cross.  Their 
evidence  does  not  differ  materially  from  that 
given  by  the  other  witnesses.  We  cannot  con- 
sider it  of  sufficient  strength  to  Justify  us  In 
now  saying  that  the  deceased's  contributory 
negligence  was  conclusively  established.  The 
law  of  contributory  negligence,  as  stated  in 
the  two  former  opinions,  is  the  law  governing 
this  case,  and  it  was  submitted  to  the  Jury 
upon  the  law  as  there  stated.  This  new 
testimony  is  of  the  same  general  character 
as  the  other,  and  does  not  materially  change 
the  circumstances  and  facts  as  they  appeared 
upon  the  first  trial.  If  the  evidence  upon  the 
former  trial  left  the  question  of  contributory 
negligence  in  doubt,  this  cumulative  evidence 
has  not  conclusively  removed  it. 

The  Judgment  must  therefore  be  affirmed. 


LYIiB  V.  CITY  OF  DETROIT. 

(Supreme  Court  of  Michigan.     July  6,  1909.) 

1,  MnniciPAi.  CoBPOBATioNs  (8  816*)— Peb- 
80NAI.  Injuries— Notice— Evidence. 

Under  Detroit  City  Charter  1904,  {  279, 
providing    that    no    action    shall    be    brought 


against  the  city  for  any  negligent  injury,  un- 
less notice  be  given  in  writing  within  three 
months  of  injur;  of  the  nature  of  the  injury, 
etc.,  where  a  notice  showed  that  plaintiff  had 
a  &11,  that  her  right  knee  was  Sruised,  and 
that  she  received  a  severe  shaklng-np,  which 
resulted  in  an  injury  to  her  nervous  system, 
but  the  declaration  counted  on  the  other  knee, 
and  did  not  connt  on  injury  to  plaintiff's  ner- 
vous system,  proof  of  a  pnysical  wound,  and 
of  an  allegation  of  the  declaration  that  plain- 
tiff became  sick,  sore,  lame,  and  disordered,  was 
inadmissible. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1720;    Dec.  Dig.  | 

2.   PLEADinO   ({  248*)— AlIENDMERTB— GHAITQ- 

INO  Cause  or  Action. 

Detroit  City  Charter  1904,  S  279,  provides 
that  no  action  shall  be  brought  agamst  the 
city  for  any  negligent  injury,  unless  written 
notice  of  its  nature,  etc.,  is  ^iven  within  three 
months  of  the  time  of  the  mjory,  etc.  Held 
that,  where  in  an  action  for  personal  injuries 
plaintiff's  notice  showed  that  she  received  a 
severe  shaking-up,  resulting  in  a  shock  to  her 
nervous  system,  an  amendment  to  the  declara- 
tion by  the  addition  of  the  allegation  that 
plaintiff  received  a  severe  shock  to  her  nervous 
system,  etc.,  did  not  introduce  a  new  cause  of 
action. 

[Ed.  Note.— For  other  cases,  see'  Pleading, 
Cent  Dig.  «  69S-700;    Dec.  Dig.  {  24a*] 

Error  to  Circuit  Court,  Wayne  County; 
Morse  Rohnert  Judge. 

Action  by  Minnie  Lyle  against  the  City  of 
Detroit  Judgment  for  defendant  and  plain- 
tiff brings  error.  Reversed,  and  new  trial 
granted. 

Argued  before  MONTGOMERY,  OSTRAN- 
DER,  HOOKER,  McALVAY,  and  BROOKE, 
JJ. 

Edward  Donnelly  and  William  Van  Dyke, 
for  appellant  Edmund  Atkinson  (P.  J.  M. 
Hally,  of  counsel),  for  appellee. 

HOOKER,  J.  The  plaintilTs  declaration 
alleges  that  she  was  injured  on  April  22, 
1905,  through  a  fall  upon  defendant's  side- 
walk, at  a  designated  point  upon  Jay  street, 
and  that  it  was  caused  by  defects  described. 
The  nature  of  her  Injuries  were  described 
in  the  declaration  as  follows:  "The  plaintiff 
then  and  there  became  and  was  greatly  hurt, 
cut,  and  bruised  and  wounded  in  and  about 
her  left  knee,  and  became  and  was  sick, 
sore,  lame,  and  disordered,  and  so  remained 
and  continued  for  a  long  space  of  time  to 
wit,  three  months,  the  next  following,  dur- 
ing all  of  which  time  the  plaintiff  was  de- 
prived of  social  enjoyment  with  her  friends, 
and  suffered  great  bodily  pain  and  mental 
anguish,  and  was  obliged  to  undergo  medical 
and  surgical  treatment  And  plaintiff  avers 
that  she  has  continued  up  to  the  present 
time  to  suffer  bodily  pain,  though  In  a  less 
degree  than  during  the  three  months  next 
following  the  date  of  the  accident  afore- 
said. And  plaintiff  avers  that  she  has  con- 
tinually  since  said  occurrence  of  said  acci- 
dent been  hindered  and  prevented  from  per- 
forming and  transacting  her  lawful  and  cus- 


•For  other  cues  SM  same  topic  and  lacUon  NUMBER  in  D«c.  *  Am.  Digs.  1907  to  dsts,  *  Reporter  Indszas 


Digitized  by  VjOOQ  l€ 


Mich.) 


LYLE  V.  CITY  OF  DETROIT, 


109 


tomary  busloesa  and  occupation,  to  wit,  tbe 
business  and  occupation  of  a  dressmaker  and 
seamstress,  whereby  she  lost  great  gains 
and  profits  which  would  otherwise  have  ac- 
crued to  and  been  earned  by  her.  And  by 
reason  of  tbe  premises  also  the  plaintiff  was 
put  to  the  expense,  cost,  and  charges  In 
tbe  whole,  amounting  to  a  large  sum,  to 
wit,  $200,  In  procuring  medicines  and  med- 
ical attendance,  nursing  and  care  In  and 
about  endeavoring  to  be  cured  of  tbe  said 
wounds,  sickness,  lameness,  and  disorder 
so  occasioned  as  aforesaid.  And  plaintiff 
avers  that  by  reason  of  tbe  said  negligent 
acts  of  tbe  defendant,  she,  the  plaintiff,  has 
been  permanently  Injured,  and  will  suffer  In 
tbe  future  great  bodUy  pain  and  great  in- 
convenience and  annoyance  to  tbe  following 
particulars:  Her  left  knee  has  been  perma- 
nently weak^ed,  and  the  strength  thereof 
impaired  to  such  a  degree  that  she  has  been 
deprived  of  the  full  and  free  use  thereof  In 
walking  and  standing,  and  said  knee  has  be- 
come permanently  stiff  and  sore,  and  by 
reason  thereof  plaintiff  has  become  perma- 
nently Incapacitated  from  operating  the  ma- 
chine customarily  used  in  tbe  business  of 
a  dressmaker  and  seamstress."  The  statute 
(Detroit  Charter  1904,  i  279)  provides:  "No 
action  shall  be  brought  against  said  city, 
nor  any  of  Its  boards,  commissioners  or  of- 
ficers for  any  negligent  Injury  unless  it  be 
commenced  within  one  year  from  the  time 
when  the  Injury  was  received  nor  unless 
notice  shall  be  given  in  writing  within  three 
months  from  the  time  of  such  injury  to  tbe 
bead  of  the  law  department  or  to  his  chief 
assistant  of  tbe  time,  place  and  cause  of 
such  injury,  and  of  tbe  nature  thereof." 
The  cause  came  on  for  trial  on  October  9, 
1907,  when  plaintiff's  counsel  asked  leave  to 
amend  bis  declaration  by  adding  the  fol- 
lowing: "By  reason  of  tSie  premises  the 
plaintiff  received  a  severe  shock  to  the  ner- 
vous system,  and  has  since  tbe  date  of  tbe 
injury,  and  because  of  It,  suffered  great  and 
severe  headache,  and  will  continue  to  suffer 
so  for  the  rest  of  her  life."  Tbe  motion 
was  denied.  Tbe  cause  proceeded,  and 
counsel  having  proved  her  fall  and  its  cause, 
and  that  her  left  knee  was  hurt,  objection 
was  made  on  tbe  part  of  tbe  defendant  that 
the  notice  served  under  the  statute  stated 
tbe  iqjury  to  have  been  to  the  right  knee. 
Tbe  court  excluded  all  testimony  of  Injury  to 
the  left  knee.  Tbe  notice  to  the  city  attor- 
ney is  as  follows:  "Timothy  Tarsney,  Esq., 
Corporation  Counsel  of  the  City  of  Detroit, 
Detroit,  Mich.— Sir:  Please  take  notice  that 
<Hi  Saturday,  the  22d  da^  of  April,  A.  D. 
1905,  Miss  Minnie  Lyle,  of  316  New  Orleans 
street.  City  of  Detroit,  was  Injured  on  tbe 
north  side  of  Jay  street  between  Gratiot  ave- 
nue and  Orleans  street  and  about  20  or  30 
feet  from  the  comer  of  Gratiot  avenue  and 
Jay  street,  at  about  the  hour  of  10:50  o'clock 
snntime,  in  tbe  morning;  said  Injuries  be- 
ing caused  by  reason  of  tbe  defective  side- 


walk; the  boards  of  said  sidewalk  being  in 
a  broken  and  rotten  condition,  which  caused 
Miss  Minnie  Lyle  to  fall  heavily  to  said 
sidewalk,  and  she  then  and  there  sustained 
tbe  following  injuries,  to  wit:  Her  right 
knee  was  severely  bruised  and  the  blood 
vessels  and  ligaments  of  said  knee  were 
ruptured,  and  she  received  a  severe  shaking- 
up,  which  resulted  In  Injury  to  her  nervous 
system.  Tou  will  further  take  notice  that 
said  Miss.  Minnie  Lyle  intends  to  seek  legal 
redress  agabist  tbe  city  of  Detroit  for  tbe 
Injuries  she  sustained  at  tbe  time  and  in 
the  manner  aforesaid.  Wm.  Van  Dyke.  Ed- 
ward Donnelly."  Her  petition  to  tbe  council 
was  substantially  the  same.  Counsel  renew- 
ed his  application  to  amend  the  declara- 
tion, and  also  asked  to  be  allowed  to  prove: 
"That  she  has  suffered  In  this  accident  an  In- 
Jury  to  her  left  knee,  and  as  a  consequence 
of  that  injury  that  she  was  severely  shaken 
up,  and  that  it  was  a  severe  shock  to  her 
nervous  system,  and  that  since  the  accident 
she  bas  suffered  pain  and  injury  because  of 
this  nervous  condition  brought  on  by  the 
shock.  In  addition  to  that  she  has  suffered 
pain  which  came  directly  from  the  fall,  no- 
tice of  which  fall  was  given  to  the  city,  and 
tbe  location  >wlth  regards  to  it  as  set  up  In 
tbe  declaration.  Tbe  court  seems  to  be  of 
the  opinion  that  It  is  not  proper.  Court:  You 
proposed  to  show  an  injury  to  tbe  left  knee, 
and  not  to  the  right  knee.  You  pr<^ose  to 
show  a  nervous  shock.  Mr.  Donnelly:  As 
a  result  of  this  fall,  according  to  tbe  decla- 
ration and  the  great  pain  she  bas  suffered 
since  that  time,  and  at  that  time,  and  In 
tbe  future  as  well"  This  was  denied,  and 
the  learned  circuit  judge  directed  a  verdict 
for  the  defendant  The  charge  was  Inter- 
rupted by  an  offer  on  the  part  of  plaintiff's 
counsel  to  show  that  the  right  knee  was  in- 
jured as  well  as  tbe  left,  whereupon  tbe 
court  stated  that  no  such  proof  bad  been 
offered.  Counsel  had  previously  answered, 
"That  is  all,"  in  response  to  tbe  court's  ques- 
tion, "Is  that  all?"  referring  to  tbe  testi- 
mony.   Tbe  defendant  has  appealed. 

In  an  opinion  denying  a  motion  for  new 
trial  the  following  reasons  for  the  denial 
were  stated,  viz.:  The  proposed  amendment 
would  have  added  a  new  cause  of  action  a 
year  after  it  accrued,  and  tbe  statute  of 
limitations  bad  run  against  It  Notice  of  an 
Injury  to  a  right  knee  precluded  proof  of 
injury  to  the  left.  Inasmuch  as  the  plain- 
tiff's notice  of  physical  injury  was  limited  to 
tbe  right  knee,  and  her  declaration  mention- 
ed only  an  injury  to  tbe  left  knee.  It  was 
held  that  she  could  make  no  proof  of  any 
injury,  and  as  a  consequence  there  could  be 
no.  recovery.  We  have,  then,  a  case  where 
tbe  notice  showed  that  she  had  a  fall,  etc.; 
that  her  right  knee  was  bruised,  and  its 
ligaments  were  ruptured,  and  she  received  a 
severe  sbaklng-up,  which  resulted  In  an  in- 
jury to  her  nervous  system.  The  declara- 
tion counted  upon  the  other  knee,  and  It 


Digitized  by  VjOOQ  l€ 


no 


122  NORTHWESTERN  REPORTER. 


(Mich. 


did  not  count  npon  a  shaklng-np  wtalcb  re- 
sulted In  an  injury  to  her  nerrons  aystem. 
Under  the  rule  followed  In  Rldgeway  v.  Ea- 
canaba,  154  Mich.  08,  117  N.  W.  660,  proof 
of  a  physical  wound  or  hurt  could  not  be 
admitted  for  want  of  a  proper  notice,  and 
the  allegation  of  the  declaration  that  she  be- 
came sick,  sore,  lame,  and  disordered  was 
Inadmissible  for  the  same  reason.  The  on- 
ly theory  upon  which  a  recovery  could  have 
been  had  under  the  notice  was  that  she 
fell,  and  suffered  a  severe  shaklng-up,  which 
resulted  In  Injury  to  her  nervous  system; 
and,  as  already  stated,  this  was  not  alleg- 
ed In  the  declaration.  Had  the  declaration 
alleged  the  fall  and  shaklng-np,  and  that  In 
consequence  she  suffered  an  Injury  to  her 
nervous  system.  It  would  have  supported 
proof  of  such  an  Injury,  and  we  are  of  the 
opinion  that  such  an  amendment  would  not 
have  been  the  Introduction  of  a  new  cause  of 
action.  Jones  v.  Pendleton,  151  Mich.  442, 
115  N.  W.  468.  Connsel  asked  to  make  an 
amendment,  as  already  stated.  While  a  tech- 
nical construction  of  what  occurred  might 
Justify  us  in  saying  that  the  amendment  of- 
fered did  not  exactly  accord  with  the  notice, 
we  are  of  the  opinion  that,  had  the  allega- 
tion appeared  in  the  declaration  in  the  first 
instance,  we  should  say  that  it  would  have 
supported  the  proof  offered  of  a  shaking-up 
by  the  fall  and  resultant  injury  to  her  ner- 
vous system. 

Apparently  the  application  was  refused 
upon  another  and  untenable  ground;  and, 
assuming,  as  we  think  that  we  should,  that 
the  learned  circuit  Judge  would  have  allowed 
the  amendment  but  for  his  opinion  that  it 
would  have  introduced  a  new  cause  of  ac- 
tion, we  feel  constrained  to  reverse  the  Judg- 
ment and  grant  a  new  trial. 


SPEAR  et  al.  v.  HANSON. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

Sales    (S    348*)  —  Skt-Of»  —  Unliquidated 

Damages. 

In  an  action  for  the  price  of  bay  sold  with- 
out a  warranty  of  quality  and  accepted  by  de- 
fendant, her  demand  for  unliquidated  damages 
resulting  from  the  alleged  wortblessness  of 
the  bay  was  unavailable  as  a  set-off. 

[E5d.  Note.— For  other  cases,  see  Sales,  Cent. 
Dig.  a  «73-978:  Dec.  Dig.  (  348.*] 

Error  to  Circuit  <3ourt,  Marquette  Conntj; 
John  W.  Stone,  Judge. 

Action  by  Frank  B.  Spear  and  others 
against  Karen  Hanson.  From  a  Judgment  for 
plaintiff  denying  defendant's  set-off,  she 
brings  error.     Affirmed. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

C.  F.  Button,  for  appellant  Hill  &  Smith, 
for  appellees. 


OSTRANDER,  J.  The  cause  was  begun  in 
Justice's  court,  where  the  plaintiff  declared 
upon  the  common  counts  in  assumpsit  for 
the  price  and  value  of  certain  personal  prop- 
erty furnished  to  defendant  The  plea  was 
the  general  Issue,  with  notice  that  defendant 
would  set  off  against  the  demand  of  the  plain- 
tiff a  sum  of  money  paid  by  defendant  to 
plaintiff  as  the  purchase  price  of  other  i)er- 
sonal  property,  viz.,  a  car  load  of  hay  which 
was  of  no  value,  the  feeding  of  which  in- 
jured defendant's  cows  and  their  milk.  In 
the  circuit  court,  to  which  the  case  was  ap- 
pealed, it  was  admitted  that  defendant  was 
Indebted  to  plaintiff  in  the  sum  of  $243.60, 
subject  to  any  set-off  defendant  might  estab- 
lish. It  appeared  that  defendant  had  fed  her 
cattle  from  the  hay  in  question  from  No- 
vember 14th  to  December  1st  usli^  three 
bales  of  It  daily,  each  bale  contatnlng  about 
100  pounds.  In  a  colloquy  between  the  court 
and  counsel  for  defendant  the  following  oc- 
curred: "Court:  It  seems  to  me  that  the 
evidence  shows  that  some  portion  of  the 
hay  was  received  and  used,  and  upon  that 
evidence  it  seems  to  me  that  It  could  not 
be  said  that  it  was  of  no  value.  Mr.  Button : 
This  is  the  point  where  the  disagreement 
comes  In.  I  claim  ttiat  we  would  still  have 
the  right  to  show  that  the  hay  used  was  of  no 
value,  notwithstanding  the  fact  that  It  had 
been  used.  Court :  Yes;  I  think  I  understand 
your  position  about  that  Mr.  Button:  So 
that  your  honor's  ruling  means  that  it  makes 
no  difference  what  we  could  show,  as  to  the 
wortblessness  of  it;  that  fact  that  the  hay 
was  used—  Court :  It  appearing  undisputed 
that  the  hay  was  used,  a  considerable  por- 
tion of  it,  and  fed  to  the  cattle  that  it  was 
bought  to  feed,  it  seems  to  me  that  It  can- 
not be  said  that  it  was  entirely  worthless 
and  of  no  value.  The  evidence  tends  to  show 
that  it  sustained  the  life  of  these  cattle  for 
several  weeks,  or  some  period  of  time,  and 
the  evidence  tends  to  show  that  the  remain- 
der of  it  has  some  value,  or  might  have, 
for  bedding  or  other  use.  Mr.  Button:  We 
claim  that  the  hay  was  of  no  value  even 
for  bedding,  and  we  have  evidence  upon  that 
point,  and,  if  I  could  make  It  a  question  of 
fact  whether  this  hay  had  any  value  what- 
ever or  not,  It  seems  to  me  I  ought  to  have 
the  privilege  of  doing  it  Court:  It  seems 
to  me,  unless  you  expect  to  change  the  tes- 
timony of  the  defendant  Mrs.  Hanson,  that 
some  hay  was  used  and  fed  out  Mr.  Button : 
We  admit  some  of  It  was  fed  out,  but  we 
claim  that  it  was  worthless,  and  was  an  ac- 
tual damage,  and  gave  no  consideration. 
Court:  It  appearing  that  the  hay  was  placed 
there  in  your  barn,  and  as  It  was  used  its 
condition  became  apparent  to  the  defendant 
and  she  continued  to  use  it  for  some  time, 
it  seems  to  me  It  takes  it  outside  of  the  doc- 
trine of  set-off.  You  do  not  feel,  of  course, 
like  withdrawing  your  claim  of  damages  here 


•For  otbsr  caiw  sea  lam*  topic  and  lection  NUMBER  In  Dec.  &  Am.  OiK<.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  LjOOQ  l€ 


Mich.) 


GILLIQHAM  ▼.  RAY. 


Ill 


and  bringing  a  separate  snlt  Yon  do  not 
vant  to  take  that  position.  Yon  may  want 
to  go  ap  on  this  qneetlon.  Mr.  Button :  I 
do  not  want  to  take  that  position.  As  yonr 
Honor  suggests,  I  might  want  to  take  this 
case  ap,  and  I  do  not  want  the  records  for 
the  Supreme  Court  In  such  shape  that  it 
would  say  that  I  did  not  offer  enough  tes- 
timony. We  hare  further  testimony  on  the 
question  of  value  if  that  would  change  the 
position  as  a  matter  of  law.  Court:  Not 
unless  It  would  change  the  fact  as  it  now 
appears  that  a  portion  of  the  hay  was  re- 
ceiyed  and  used.  I  understand  you  do  not 
expect  to  change  that  Mr.  Button:  We 
do  not  expect  to  change  that  Court:  Then 
I  am  willing  to  take  the  course  I  bare,  and 
therefore  1  direct  the  jury  to  render  a  ver- 
dict In  favor  of  the  plaintiffs  for  the  sum  of 

The  errors  assigned  are:  "(I)  The  court 
erred  In  holding  that  the  fact  that  the  hay 
was  delivered,  and  some  of  It  used,  was  con- 
clusive evidence  of  value.  (2)  The  court 
erred  in  refusing  to  receive  evidence  tend- 
ing to  show  that  the  hay  involved  was  of 
no  value  whatever,  and  that  some  of  It  was 
an  actual  injury  to  any  animals  eating  It 
(3)  The  court  erred  in  holding  that  under  the 
evidence  in  the  case,  and  the  evidence  of- 
fered to  be  shown,  that  the  defendant  was 
not  entitled  in  this  action  to  oBaet  the 
amonnt  paid  by  her  for  the  hay  in  question 
as  money  paid  without  consideration." 

It  does  not  appear  upon  the  record  that 
counsel  for  defendant  claimed  the  hay  was 
sold  with  warranty  of  its  quality,  or  that 
the  bay  was  not  accepted  by  defendant  It 
does  not  appear  that  defendant  desired  to 
produce  or  was  denied  the  right  to  produce 
testimony  upon  either  proposition.  Her  de- 
mand, therefore,  appears  to  be  one  for  un- 
liquidated damages,  and  the  court  was  not 
in  error  in  directing  a  verdict  and  judgment 


GILLIQHAM  ▼.  RAY  et  al. 
(Supreme  Court  of  Michisan.     July  6,  1009.) 
iHjuiicnow  «  114*)— Right  to  Sue— Privity 

— ^MOVINO    PiCrDBES. 

Where,  by  contract  with  the  owners,  a 
person  has  the  ezclusive  right  to  exhibit  moving 
pictares  of  a  certain  event  in  a  town,  such  per- 
son may  sne  to  restrain  their  exhibition  in  the 
same  town  by  others  having  no  rights  to  do  so. 
[Ed.  Note.— For  other  cases,  see  Ininnction, 
Cent.  Dig.  «  205.  206;   Dec.  Dig.  (  114.»] 

Appeal  from  Circuit  Court,  Muskegon  Coun- 
ty, in  Chancery;  Clarence  W.  Sessions, 
Judge. 

'  Suit  by  Albert  J.  Ollllgham  against  Carl 
Ray  and  another  to  restrain  the  exhibition 
of  moving  pictures.  From  an  order  over- 
ruling the  demurrer  to  the  complaint,  de- 
fendants appeal.  Affirmed,  with  leave  to  an- 
swer. 


Argued  before  BLAIR,  O.  T.,  and  GRANT, 
MONTGOMERY,  HOOKER,  and  MOORE,  JJ. 

James  E.  Sullivan  and  R.  J.  MacDonald,  for 
appellants.  Cross,  Lovelace  &  Ross,  for  ap- 
pellee, 

BLAIR,  C.  J.  Defendants  appeal  from  nn 
order  overruling  their  demurrer  to  the  com- 
plainant's bill  of  complaint  The  bill  of  com- 
plaint sets  up  that  under  a  contract  with  the 
Chicago  Film  Exchange,  the  owner  and  con- 
troller of  "the  original  Nelson-Gans  fight  film 
pictures  taken  at  Colma,  Cal.,"  complainant 
acquired  the  exclusive  right  to  show  said 
pictures  on  or  before  the  26th  day  of  Novem- 
ber, 1908;  that  complainant  had  made  ar- 
rangements at  great  expense  to  exhibit  said 
pictures  at  the  Grand  Opera  House  at  Muske- 
gon on  Thursday  afternoon  and  evening,  No- 
vember 26,  1908,  and  that  no  one  else  had  a 
right  to  exhibit  said  pictures  on  or  before 
said  day ;  "that  your  orator  is  informed  and 
believes  that  films  of  the  said  original  Nel- 
son-Gans fight  film  pictures  were  rented  by 
said  Chicago  Film  Exchange  to  Walter  But- 
terfield  of  Battle  Creek,  Mich.,  for  use  in 
Benton  Harbor,  Mich.,  on  November  23,  1906. 
and  November  24, 1008,  and  that  said  original 
Nelson-Gans  pictures  were  surreptitiously 
and  without  authority  or  right  brought  to 
the  city  of  Muskegon,  and  your  orator  fur- 
ther avers  upon  positive  knowledge  that  said 
films  are  now  being  exhibited  by  said  defend- 
ants Carl  Ray  and  W.  S.  Waterman  at  the 
five  cent  picture  theater  known  as  the  'Lyric,' 
located  on  Western  avenue,  in  Muskegon, 
Mich.,  without  the  consent  of  said  Chicago 
Film  Exchange,  and  without  any  right  or  au- 
thority whatsoever,  and  without  the  consent 
of  your  orator,  and  in  violation  of  the  rights 
of  your  orator  in  the  premises;  that  after 
your  orator  had  learned  that  said  original 
Nelson-Gans  Fight  pictures  of  September  9, 
1908,  were  being  exhibited  In  Muskegon,  he 
called  up  one  Max  Lewis,  manager  of  said 
Chicago  Film  Exchange,  at  Chicago,  111.,  and 
talked  with  him  over  the  long  distance  tele- 
phone, advising  him  of  what  was  being  done 
in  Muskegon  as  aforesaid,  and  your  orator 
was  thereupon  informed  by  said  Max  Liewis, 
manager  of  said  Chicago  Film  Exchange, 
that  no  one  other  than  your  orator  had  any 
right  to  exhibit  said  original  Nelson-Gans 
fight  film  pictures  of  September  9,  1908,  in 
Muskegon  on  or  before  November  26,  1908. 
Your  orator  further  shows  unto  the  court 
that  said  defendants  are  extensively  adver- 
tising their  exhibition  of  said  picturjes  as 
aforesaid  by  handbills  and  otherwise,  one  of 
said  handbills  being  hereto  annexed,  marked 
'Exhibit  B,'  and  made  a  pert  of  this  bill  of 
complaint;  that  your  orator  has  personally 
Interceded  with  said  Carl  Ray  and  W.  S. 
Waterman,  defendants  aforesaid,  informing 
them  of  bis  rights  in  the  premises,  and  ex- 


•r«r  otJier  ( 


I  MS  MUM  topio  snd  (MUon  NUMBER  in  D«c.  *  Am.  Oisi.  U07  to  date,  ft  Reporter  Indsxe* 


Digitized  by  VjOOQ  l€ 


112 


122  NORTHWESTERN  REPORTER. 


(Miclk 


blbltlDg  the  telegram  as  aforesaid,  and  re- 
quested said  defendants  to  discontinue  the 
exhibiting  of  said  pictures,  which  said  de- 
fendants thereupon  refused  to  do;  that,  if 
said  defendants  are  permitted  to  continue 
the  exhibition  of  said  pictures  In  violation 
of  the  rights  of  your  orator,  your  orator  will 
suffer  irreparable  loss  and  injury,  and  that 
your  orator  has  no  adequate  remedy  other 
than  by  the  injunction  of  this  honorable 
court;  •  •  *  that  the  said  defendants 
Carl  Ray  and  W.  S.  Waterman,  and  each  of 
them,  may  be  restrained  and  enjoined  by  the 
order  and  decree  of  this  court  from  exhibit- 
lug  said  original  Nelson-Gans  fight  film  pic- 
tures, taken  at  C!olma,  Cal.,  September  9, 
190S,  on  or  before  November  26,  1008 ;  that, 
upon  the  filing  of  this  bill  of  complaint,  a  re- 
straining order  or  a  temporary  injunction 
may  be  issued  in  accordance  with  the  prac- 
tice of  said  court  restraining  said  defendants 
Carl  Ray  and  W.  S.  Waterman  and  each  of 
them  from  exhibiting  said  original  Nelson- 
Gans  fight  film  pictures  of  September  9, 1906, 
in  Musk^on,  Mich.,  at  any  time,  prior  to 
November  27,  1908."  The  reasons  stated  as 
the  basis  for  the  demurrer  are  as  follows: 
"It  appears  from  the  allegations  of  said  bill 
that  there  Is  no  privity  between  complainant 
and  defendants,  and  that  complainant  has 
no  such  Interest  in  the  subject-matter  of  this 
suit  as  would  entitle  him  to  maintain  the 
same  in  a  court  of  equity." 

As  was  said  in  Township  of  Merrltt  v. 
Harp,  181  Mich.  174,  91  N.  W.  156 :  "Under 
chancery  rule  9a,  we  need  not  look  further 
to  the  substance  of  the  bill  than  to  ascer- 
tain whether  It  is  open  to  the  specific  objec- 
tions raised  by  the  demurrer."  "A  general 
demurrer  challenges  the  equity  of  the  case 
made  by  the  bill,  and  will  be  overruled  if  a 
case  for  equitable  relief  is  set  out  however 
imperfectly."  Greenley  v.  Hovey,  115  Mich. 
604,  73  N.  W.  80a  The  Chicago  Film  Ex- 
change, so  far  as  the  bill  shows,  owed  no 
duty  to  complainant  to  protect  him  against 
the  unlawful  or  fraudulent  use  of  their  film 
by  others.  If  complainant  had  any  cause  of 
action  whatever,  it  was  against  defendants. 
Having  obtained  the  exclusive  right  to  ex- 
hibit this  film  in  Muskegon,  he  had  the  same 
right  of  action  against  any  person  unlaw- 
fully or  fraudulently  Invading  that  exclusive 
right  that  the  Film  Exchange  Company  Itself 
would  have  had  in  the  absence  of  the  con- 
tract It  would  hardly  be  contended  that 
the  corporation  owning  and  controlling  the 
use  of  this  film  could  not  protect  its  rights 
by  suit  to  prevent  the  unauthorized  use  there- 
of. No  good  reason  is  perceived  for  denying 
the  same  right  to  the  assignee  of  the  corpora- 
tion's exclusive  rights  within  the  contract 
limits  of  time  and  place.  The  argument  of 
defendants'  counsel  is  principally  in  support 
of  other  grounds  of  demurrer,  which  are 
not  open  for  our  consideration.    Considering 


only  the  reasons  assigned  in  the  demurrer. 
It  was  properly  overruled. 

The  decree  is  affirmed,  with  leave  to  an- 
swer in  accordance  with  the  rules  and  prac- 
tice of  the  court 


LACY  V.  PIATT  POWER  &  HEAT  CO.  et  «1, 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

1.  Mbchanics*  Liens  (S  158*)— Amendment 
OF  Statement  op  Lien— Oonsibdction  of 
Statute. 

Comp.  Laws  1897,  (  10,736^  provldhig  that 
amendments  to  any  process,  pleadings,  or  pro- 
ceedings to  enforce  mechanics'  liens,  either  in 
form  or  snbstance,  shall  be  allowed  at  any  time 
before  final  decree,  refers  merely  to  process, 
pleadings,  or  proceiedings  in  an  action  to  en- 
force aacn  a  hen,  and  gives  no  right  to  amend 
the  statement  of  lien. 

[Ed.  Note.— For  other  cases,  see  Mechanics* 
Liens,   Cent   Dig.   {{   275-278;    Dec.    Dig.    f 

2.  Mechanics'  Liens  (§  167*)— Statement  or 
Lien  —  Naming  Owneb  —  Effect  of  Mis- 
take. 

Where  a  mechanic's  lien  claimant  proceeds 
against  a  certain  person  as  the  owner  and  posi- 
tively swears  in  his  claim  that  he  is  the  owner, 
he  cannot  excuse  the  mistake  by  pleading  ig- 
norance, unless  the  ignorance  is  chargeable  to 
the  owner  himself. 

[Ed.  Note.— For  other  cases,  see  Mechanics* 
Liens,  Dec  Dig.  I  157.*] 

Appeal  from  Circuit  Court,  Ingham  Coun- 
ty, in  Chancery ;  Howard  Wlest,  Judge. 

Bill  by  Philo  E.  Lacy  against  the  Piatt 
Power  &  Heat  Company  and  others.  De- 
cree for  defendants,  and  complainant  ap- 
peals.   Affirmed. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Morse  &  Davis,  for  appellant  Rollln  H. 
Person,  for  appellees. 

BROOKE,  3.  In  Novouber,  1905,  com- 
plainant fumshed  110  loads  of  gravel  and 
55%  barrels  of  Portland  cement,  which  were 
used  in  repairing  defendants'  dam  In  the  city 
of  Lansing,  or  for  filling  in  a  hole  below  the 
dam  caused  by  the  falling  waters.  On  Jan- 
uary 12,  1906,  he  filed  his  sworn  statement 
of  lien,  asserting  therein  that  he  furnished 
the  said  materials  in  pursuance  of  a  contract 
between  himself  and  the  Hydro-Electric  De- 
velopement  Company,  the  contractor.  On 
the  6th  day  of  May,  1906,  the  dam  was  sold 
by  the  defendants,  the  Piatt  Power  &  Heat 
Company,  to  the  defendant,  the  Michigan 
Power  Company,  and  a  bond  was  given  to 
release  said  mechanic's  lien.  Some  time  aft- 
er the  filing  of  said  claim  of  lien  by  the  com- 
plainant, he  learned  that  there  was  no  such 
corporation  as  the  Hydro-Electric  Develope- 
ment  Company,  and  that  the  contractor  with 
whom  he  had  done  business  was  Frank  Mc- 
Kean.  In  August,  1906,  he  filed  his  bill  of 
complaint  in  the  present  cause,  praying  that 
he  be  declared  to  have  a  valid  Hen  upon  the 


•For  other  cue*  >e*  same  topic  and  section  NUMBER  In  Dae.  *  Am.  Digs.  1907  to  date,  ft  Reportsr  Indaxes 


Digitized  by  VjOOQ  l€ 


MldL) 


PEOPLE  V.  BLAES. 


U3 


PTCjtartj  described  In  hla  statement  of  lien 
for  tbe  Bom  of  $203.53.  His  fifth  prayer  for 
relief  Is  as  follows:  "That  your  orator  may 
be  allowed  to  amend  hlg  said  statement  of 
lien  by  striking  out  the  name  'Hydro-Electric 
I>eTeIoi)ement  Company'  now  named  therein 
as  contractor  and  Inserting  In  Its  place  and 
stead  the  name  'Frank  McKean'  as  contract- 
or." Ajb  authority  for  making  the  desired 
amendment,  complainant  relies  upon  section 
10,736,  Comp.  Laws  1897,  which  reads  in  part 
as  follows:  "This  act  is  hereby  declared  to 
be  a  remedial  statute  and  to  be  construed  lib- 
erally to  secure  the  beneficial  results.  In- 
tents, and  purposes  thereof;  and  a  substan- 
tial compliance  with  its  several  proTlsions 
shall  be  saflaclent  for  the  validity  of  the  lien 
or  liens  hereinbefore  provided  for,  and  to 
give  Jurisdiction  to  the  courts  to  enforce  tbe 
same.  Amendments  to  any  process,  plead- 
ings, or  proceedings  in  such  actions  to  en- 
force the  Hens  given  by  this  act,  either  In 
form  or  substance,  shall  be  allowed  at  any 
time  before  final  decree  Is  rendered,  on  ap- 
plication of  either  party  upon  such  terms  and 
conditions  as  Justice  may  require."  In  dis- 
cussing the  efTect  of  the  statute  in  the  case 
of  Smalley  v.  Northwestern  Terra-Cotta  Co., 
113  Mich.  141,  71  N.  W.  466,  this  court  said: 
"It  seems  to  me,  however,  that  the  rule  is 
correctly  stated  in  2  Jones,  Liens,  {  1554, 
where  It  is  said:  'The  rule  of  construction 
applicable  to  questions  arising  under  these 
liens  may  be  strict  at  one  stage  of  the  pro- 
ceedings, and  liberal  at  another.  Mechan- 
ics' liens  are  In  derogation  of  the  common 
law,  depending  for  their  existence  wholly  up- 
on statutes,  and  therefore,  upon  the  question 
whether  a  Hen  attaches  at  all,  a  strict  con- 
struction is  proper.'  Section  1556  of  the 
same  author  reads :  'But,  after  the  lien  has 
once  attached,  a  liberal  construction  should 
be  put  upon  the  statute  for  the  purpose  of 
fulfilling  its  objects.  Tbe  statute  is  highly 
remedial  In  its  nature,  and  should  receive  a 
practical  and  reasonable  construction  to  ef- 
fect its  objects.'  "  The  last  portion  of  section 
10,736,  supra,  refers.  In  our  opinion,  not  to 
tbe  statement  of  lien,  but  by  its  very  terms 
relates  to  the  process,  pleadings,  or  proceed- 
ings In  an  action  for  Its  enforcement.  Again, 
In  Waters  v.  Johnson,  184  Mich.  436,  96  N. 
W.  504,  where  the  lienor  claimant  had  nam- 
ed another  person  as  the  owner  of  the  prop- 
erty, it  is  said:  "The  statute  in  our  Judg- 
ment imperatively  requires  that  said  owner 
be  named  In  the  claim,  save  when  his  name 
Is  unknown,  in  which  case  it  need  not  be 
stated,  and  that  service  be  made  upon  said 
owner  within  10  days.  It  follows,  therefore, 
that  when  the  lien  claimants  proceed  against 
a  certain  person  as  tbe  owner,  and  positive- 
ly swear  In  their  claim  that  he  is  the  owner, 
tbey  win  not  be  permitted  to  excuse  this  mis- 
take by  pleading  ignorance,  unless,  as  here- 


inafter pointed  out,  that  ignorance  Is  Justly 
chargeable  to  the  owner  himself."  Upon 
principle  we  are  unable  to  distinguish  the 
case  of  Waters  v.  Johnson,  supra,  from  the 
case  at  bar.  The  notice  of  the  lien  in  ques- 
tion served  upon  the  defendant  Piatt  Power 
&  Heat  Company  served  no  purpose,  because 
It  conveyed  no  information  to  them  that  the 
complainant  was  furnishing  labor  or  materi- 
al for  any  person  or  corporation  with  whom 
it  held  contractual  relations. 
Decree  affirmed. 


PEOPLE  V.  BLAKE. 
(Supreme  Court  of  Michigan.     July  6,   1909.) 

1.  Homicide  (J  169»)— Admissibility  or  Evi- 
dence—Cibcumsttanoes  Pbecediho  Act. 

Accused  shot  and  killed  an  officer  who  was 
trying  to  arrest  him  for  a  burglary  commit- 
ted a  short  time  before.  HeU,  that  evidence 
that  a  burglary  had  been  committed  and  of  the 
details  thereof,  and  that  the  officer  had  reason- 
able grounds  for  believing  that  accused  was 
implicated  in  the  burglary,  and  the  incidents 
or  the  attempted  arrest,  were  admissible  in  the 
prosecution  for  murder. 

[Ed  Note -For  other  cases,  see  Homicide, 
Gent  Dig.  {{  341-850;    Dec.  Dig.  §  169.*] 

2.  Cbimihal  Law  (|  687»)-Tbiai>-Reopen- 
iwa  Case  fob  Admission  of  Testimony. 

A  trial  court  may  in  the  exercise  of  a 
sound  discretion  reopen  a  case  to  hear  testi- 
mony on  behalf  of  either  side,  and  there  is  no 
abuse  of  such  discretion  in  permitting  during 
argument  the  formal  introducUon  in  evidence 
of.  exhibite  which  bad  been  in  use  during  the 
trial,  where  the  defendant's  rights  were  fully 
protected  by  allowing  him  to  object,  and  offer- 
ing him  bme  to  put  in  any  evidence  thereby 
rendered  necessary. 

[Ed.  Note.--For  other  cases,  see  Criminal 
L^^Cent.  Dig.  «{  1621,  1622,  1625;  Dec  Dig. 

3.  Cbiminal  Law  (|  1216*)— Indetekminatb 
Sentence— Mazimttm  and  Minimum  Tebm. 

where  accused  was  tried  upon  the  charge 
of  murder,  and  was  convicted  of  murder  in 
the  second  degree,  the  court  can  sentence  him 
to  life  imprisonment,  and  it  is  not  necessary 
to  give  him  an  indeterminate  sentence,  and  fix 
the  maximum  and  minimum  terms. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Dec.  Dig.  f  1216.*]  ■w  "»i  uoi 

Error  to  Circuit  Court,  Jackson  County; 
James  A.  Parkinson,  Judge. 

John  Blake  was  convicted  of  murder  In 
the  second  degree,  and  appeals.     Aflirmed. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  McALVAY,  and  BROOKE, 
JJ. 

Forrest  C.  Badgley  and  John  E.  Shekell, 
for  appellant  Benjamin  Williams,  Pros. 
Atty.,  and  A.  O.  Reece,  Asst  Pros.  Atty.,  for 
tbe  People. 

BROOKE,  J.  In  May,  1906,  the  defendant 
was  tried  upon  the  charge  of  murder,  and 
was  by  the  Jury  convicted  of  murder  in  the 
second  degree.  He  was  thereupon  sentenced 
to  life  imprisonment  In  the  Marquette  prison. 


•Kw  other  caset  lee  mum  topic  and  secUon  NUMBER  In  Dec.  &  Am.  Dlg8. 1,t07  to  date,  ft  Reporter  Indexea 
122N.W.-8 


Digitized  by  VjOOQ  l€ 


lU 


122  NOBXHWESXEKN  BEPOBTEB. 


(Ulcli. 


It  appears  that  npon  the  night  of  March 
•  18,  or  the  early  morning  of  March  19,  1906, 
the  post  office  in  the  Tillage  of  Brooklyn,  lo- 
cated about  16  miles  south  of  Jaclcson,  had 
been  broken  open  and  a  burglary  <x>mmltted. 
On  the  morning  of  the  19th  B.  H.  Parish, 
then  sherUr  of  Jackson  county,  received 
news  of  the  Brooklyn  burglary,  and  at  about 
the  same  hour  Sergeant  Booth,  a  police  of- 
ficer of  the  city  of  Jackson,  likewise  heard 
of  the  burglary,  and  further  received  infor- 
mation that  three  men  had  been  seen  driv- 
ing north  from  Brooklyn  toward  Jackson. 
A  little  later  Booth  called  up  Parish  by  tele- 
phone, and  stated  that  three  suspicious  look- 
ing men  had  been  seen  at  Farrell's  or  Mer- 
riman's  saloon,  whom  he  thought  likely  were 
the  parties  they  wanted.  He  further  asked 
Parish  to  hitch  up  his  horses  to  a  double 
carriage  and  drive  him  (Booth)  and  another 
police  officer  by  the  name  of  Mclncrney  out 
to  the  saloon  in  question.  This  was  done 
by  Parish.  On  the  way  out  to  Merriman's 
saloon  Sergeant  Booth  told  Parish  and  the 
other  officer  that  there  was  no  question  In 
his  mind  from  what  he  had  heard  that  the 
three  men  were  the  parties  wanted.  Upon 
arriving  at  Farrell's,  the  horses  were  turned 
over  to  a  Mr.  Acion,  and  the  officers  alight- 
ed. On  inquiry  they  were  told  that  the  three 
men  wore  at  breakfast  at  a  nearby  boarding 
house.  In  a  short  time  the  three  men,  Blake, 
the  defendant,  Hamilton,  and  Walpole,  came 
out  on  the  porch  of  the  boarding  house,  and, 
after  standing  there  for  perhaps  a  minute, 
started  to  walk  rapidly  away.  The  three 
officers  went  after  them,  and,  when  they 
came  very  near  Sergeant  Booth  said,  "We 
are  officers,  and  want  you,"  at  the  same 
time  passing  Hamilton  and  Walpole  and 
grappling  with  Blake,  the  defendant,  by  the 
shoulder.  Mclnerney  grappled  with  Hamil- 
ton and  Parish  with  Walpole.  Almost  im- 
mediately the  respondent  Blake  Jerked  away 
from  Booth,  drew  a  revolver  and  fired,  the 
shot  taking  effect  in  Booth's  head,  and  caus- 
ing instant  death.  After  the  shooting  of 
Booth  by  Blake,  Hamilton  drew  a  revolver 
on  Mclnercriy,  and  succeeded  In  making  his 
escape  together  with  Blake.  They  were  cap- 
tured late  in  the  afternoon  of  the  same  day 
in  a  barn  about  three  miles  west  of  Jackson. 
All  three  men  were  heavily  armed,  having 
also  upon  their  persons  dynamite  caps,  fuse, 
and  nitroglycerine,  and  had  further  the  prop- 
erty stolen  from  the  Brooklyn  post  office. 
The  respondent  urges  five  separate  grounds 
for  reversal,  as  follows:  "(1)  It  is  the  con- 
tention of  the  respondent  that  the  court  err- 
ed in  admitting  testimony  as  to  all  that  oc- 
curred at  the  village  of  Brooklyn.  (2)  The 
court  erred  in  permitting  the  people  to  show 
the  conversations  which  occurred  between 
Booth  and  various  witnesses  not  in  the  pres- 
ence of  the  respondent.  (3)  The  court  erred 
in  opening  the  case  after  the  proofs  had 
been  closed  by  both  parties,  and  while  the 
prosecuting  attorney  was  making  his  argu- 


ment and  In  putting  Into  the  record,  at  that 
time,  on  his  own  motion,  without  the  re- 
quest of  the  prosecuting  attorney,  or  his  as- 
sistant, a  very  large  number  of  exhibits 
which  had  been  identified  in  the  course  of 
the  trial,  but  had  not  been  offered  in  evi- 
dence. (4)  The  court  erred  in  his  remarks 
made  to  counsel  for .  respondent  after  the 
proofs  had  been  closed  and  at  the  time  the 
case  was  opened  by  the  court  on  its  own 
motion  and  the  exhibits  put  la  evidence.  (5) 
The  court  erred  in  not  fixing  the  maximum 
and  minimum  sentence." 

The  first  and  second  objections  will  be 
considered  together.  The  record  discloses 
that  the  prosecution  went  very  fully  Into 
the  evidence  concerning  the  burglary  on  the 
night  prior  to  the  murder.  It  will  be  borne 
in  mind  that  Sergeant  Booth  tn  his  capacity 
as  a  peace  officer  was  In  the  act  of  making 
the  arrest  of  the  respondent  without  a  war- 
rant. It  was  therefore  incumbent  upon  the 
prosecution  to  show,  first,  that  information 
that  a  felony  had  been  committed  had  reacn- 
ed  Booth;  and,  secondly,  that  he  had  rea- 
sonable grounds  for  believing  that  Blake  and 
his  companions  were  the  men  who  had  com- 
mitted that  felony.  It  is  true  that  the  pros- 
ecution might  have  contented  Itself  with 
merely  showing  the  fact  that  a  felony  had 
been  committed,  that  information  of  its  com- 
mission had  reached  Booth,  and  that  Booth 
had  reasonable  grounds  for  believing  Blake 
to  be  one  of  its  perpetrators  In  order  to 
have  Justified  Booth  in  attempting  to  make 
the  arrest  without  a  warrant  In  going  into 
the  details  of  the  burglary  at  Brooklyn,  how- 
ever, we  fail  to  see  how  the  respondent  was 
in  any  wise  prejudiced.  Touching  this  mat- 
ter and  in  passing  npon  the  objection  of  re- 
spondent's counsel,  the  learned  circuit  Judge 
said:  "The  Jury  ought  to  understand  the 
purpose,  and  perhaps  I  ought  to  state  spe- 
cifically to  the  Jury  that  this  man  is  not  on 
trial  for  blowing  a  safe,  or  breaking  and 
entering  an  office,  or  committing  burglary. 
The  evidence  is  permitted  simply  to  show 
what  had  been  done  as  bearing  upon  the 
right  of  Mr.  Booth  to  attempt  the  arrest. 
I  admit  it  for  the  purpose  of  showing  a 
crime  had  been  committed  which  would  Jus- 
tify arrest  without  a  warrant,  provided  Mr. 
Booth  had  such  information  of  it  as  would 
lead  an  officer  reasonably,  with  good  rea- 
son and  properly  alert,  to  attempt  to  do  what 
he  did  do."  We  thluk  upon  the  ground  stat- 
ed the  testimony  was  admissible.  See  Peo- 
ple V.  Wilson,  55  Mich.  606,  615,  21  N.  W. 
905.  See,  also,  Firestone  v.  Rice,  71  Mich. 
387.  38  N.  W.  885.  15  Am.  St  Rep.  266. 

After  the  proofb  were  closed  and  counsel 
for  the  people  was  addressing  the  Jury,  ref- 
erence was  made  by  him  to  an  exhibit, 
whereupon  respondent's  counsel  objected  to 
such  reference  upon  the  ground  that  the  ex- 
hibit had  not  been  introduced.  The  court 
said;  "Now,  gentlemen,  those  tilings  were 
here.    They  were  displayed  In  the  presence 


Digitized  by  VjOOQ  l€ 


Mich.) 


PEOPLE  V.  BLAEB. 


115 


of  Uie  Jnry,  were  talked  about  and  testimony 
given  In  reference  to  them  and  cross-examin- 
ed upon.  The  testimony  wouldn't  be  Intel- 
ligible without  it  referred  to  them.  It  may 
be  that  the  prosecuting  attorney  omitted  in 
reference  to  acme  of  them  or  all  of  them  to 
formally  pot  them  in  evidence,  and.  If  he 
did,  I  will  permit  him  now  to  pnt  them  In 
evidence.  Mr.  Shekell:  Walt  a  minute. 
Let's  see  whether  the  court  ought  to  do 
that.  Mr.  Badgley:  We  should  have  offered 
testimony —  The  Ciourt:  Very  well,  we  will 
open  the  case,  and  you  may  offer  the  testi- 
mony now.  Mr.  Shekell:  Perhaps  our  tes- 
timony isn't  available.  The  Court:  Isn't 
available?  You  may  get  the  testimony  that 
Isn't  available.  Will  it  be  available  to-mor- 
row morning?  Mr.  Shekell:  I  submit  this 
defendant,  on  trial  in  a  criminal  case,  has 
some  rights  that  should  b6  observed.  If  I 
read  the  Constitution  correctly,  those  things 
are  guaranteed  to  him;  and  that  is,  the 
people  must  make  out  their  case.  We  rest- 
ed our  case  after  they  rested  theirs.  We  rest 
our  ease  upon  the  proof  they  had  introduced. 
Now,  we  are  not  to  blame  because  they 
didn't  put  In  their  evidence.  It  was  no  part 
of  our  duty.  Now,  they  come  into  this  court, 
and  the  court  Is  going  to  permit  them  In  the 
course  of  the  argument  to  Introduce  testi- 
mony they  should  have  put  In.  I  want  to 
say  this  much — if  the  court  thinks  It  Is  right, 
but  no  knowing  where  it  may  lead  us.  We 
may  have  considered  It,  and  we  may  not 
have  considered  it.  We  rested  our  case  on 
the  testimony  as  they  rested.  [Continuing]: 
We  object — and  shall  be  content  with  the 
ruling  of  the  court — ^we  object  at  this  time 
to  the  court  opening  this  case  and  permit- 
ting the  prosecution  to  put  in  any  of  that 
testimony,  because  it  will  be  unfair  to  this 
defendant,  and  to  the  statement  of  the  court 
he  will  permit  them  to  do  It.  The  prosecu- 
tion hasn't  asked  for  it — at  this  time,  as 
being  unfair  to  the  defendant  and  not  giv- 
ing him  the  trial  that  should  be  given  him 
by  law.  The  Court:  Now,  gentlemen,  the 
objection  I  regard  as  one  of  the  most  tech- 
nical character.  The  stuff  produced  here 
was  here  on  several  days.  It  was  handled. 
It  was  handled  by  the  various  witnesses  and 
talked  about,  and  testimony  had  with  ref- 
erence to  It  And  I  think  It  Is  practically  In 
evidence.  Mr.  Shekell:  Supposing  they  had 
offered  It  In  evidence  and  we  had  objected 
to  It,  we  would  have  had  a  right  to  be  heard 
at  that  time.  The  Court:  Certainly.  Coun- 
sel well  says.  If  It  had  been  formally  offered, 
they  would  have  had  a  right  to  object,  and 
I  now  permit  the  prosecutor  to  formally  of- 
fer, and  I  will  listen  to  the  objections,  and 
I  will  stop  this  trial  and  allow  any  evidence 
to  be  pnt  In  that  has  not  been  put  In  or 
would  have  been  put  In  had  the  exhibits  been 
offered  at  the  proper  tftne.  If  necessary,  I 
will  susi>end  the  trial  of  this  case  for  such 
time  as  may  be  necessary  to  get  Just  such 
evidence  as  counsel   for  defendant  would 


have  got.  I  consider  them.  In  fact,  for  all 
practical  purposes,  actually  in  the  case.  Mr. 
Shekell:  Some  of  these  statements  I  be- 
lieve your  Honor  makes  hastily.  I  don't 
think,  for  all  purposes,  until  the'  prosecu- 
tion has  Introduced  them,  they  are  lu  evi- 
dence. I  understand  we  have  a  right  to  ob- 
ject to  them  and  keep  them  out.  The  Court: 
I  understand  your  object.  Mr.  Shekell: 
Does  the  court  say  because  the  plaintiff  or 
people  brings  things  Into  the  courtroom,  and 
doesn't  offer  them  In  evidence,  that  they 
are  In  evidence  and  the  defendant  has  waiv- 
ed his  right  to  object  to  them?  The  Court: 
They  have  been  talked  about  and  shown  to 
the  Jury.  We  will  not  argue  any  further, 
and  I  will  suspend  this  trial  for  the  rest  of 
the  day,  until  to-morrow  morning,  if  you 
need  the  time  In  order  to  get  witnesses  be- 
cause these  exhibits  are  offered.  Mr.  Badg- 
ley: I  think,  before  they  get  them  in,  they 
need  a  couple  of  days  to  get  them  around 
in  shape  to  put  them  In.  There  haven't  any 
of  them  been  marked,  and  nobody  can  tell 
which  witness  identified  that  thing  and 
which  witness  Identified  that.  The  Court; 
We  won't  argue  It  any  further,  gentlemen. 
Tou  may  suspend  your  argument.  Mr.  Shek- 
ell: I  would  like  to  put  another  objection 
on  the  record.  I  object  to  their  going  in  as 
one  entire  lot,  because  there  is  no  chance  for 
the  defendant  to  object  to  each  and  every 
one,  and  some  may  be  admissible,  and  some 
may  not  be  admissible.  The  Court:  If  you 
want  to  take  testimony,  the  prosecuting  at- 
torney must  produce  them.  He  may  have 
them  marked  and  each  one  identified,  and 
you  will  have  your  opportunity  to  get  your 
testimony,  If  you  want  It.  I  will  leave  It 
to  you,  gentlemen,  if  you  want  that  done  we 
will  do  It.  Mr.  Shekell:  I  have  made  my 
objection.  Mr.  Badgley:  And  the  stuff  Is  In 
evidence?  The  Court:  Exactly.  You  may 
take  it  and  classify  each  one  specifically 
marked,  if  you  ask,  so  far  as  it  is  practica- 
ble to  mark  some  of  the  stuff.  It  can  be 
Identified.  If  you  desire  that  done,  I  will 
suspend  for  you  to  get  your  evidence.  Mr. 
Shekell:  You  needn't  suspend  for  us  to 
make  our  case.  The  prosecution  can  make 
the  case.  Mr.  Badgley:  Your  Honor  has 
opened  the  case  on  account  of  them.  They 
may  take  action.  The  prosecutor  hasn't  said 
he  wants  to  do  anything.  He  hasn't  said  he 
wants  this  stuff  in  evidence.  Your  Honor  has 
put  that  in  voluntarily.  The  Court:  Very 
well.  I  will  take  the  responsibility  of  dl^ 
rectlng  It  put  In  evidence.  I  will  wait  to  see 
whether  In  consequence  the  defense  wishes 
to  open  the  case  and  put  in  testimony.  Mr. 
Badgley:  I  don't  know  of  any  rule  of  law 
that  will  permit  the  reopening  of  a  criminal 
case.  The  Court:  Never  mind.  I  have  op- 
ened It.  Whether  there  is  any  law  for  It  or 
not.  It  can't  hurt  you.  Mr.  Badgley:  I  take 
an  exception  to  that  remark.  Not  only  the 
respondent,  but  the  attorneys,  have  some 
rights  in  a  case.    The  Court:    Mr.  Badgley, 


Digitized  by  VjOOQ  l€ 


116 


122  NORTHWESTBBN  BEIPOBTEB. 


(Mich. 


the  conrt  has  exercised  and  allowed  great 
latitude.  There  are  things  due  to  the  court. 
If  the  court  is  wrong,  you  have  the  benefit 
of  your  exception.  I  am  not  going  to  be 
lectured  by  any  attorney  at  this  bar  at  any 
time.  I  want  that  understood.  Now,  I  opoi 
this,  not  for  the  prosecution,  but  for  you. 
I  don't  think  there  Is  any  favor  extended 
to  eithrer  side.  Mr.  Badgley:  Does  your 
Honor  say  you  have  a  right  to  open  our 
case  for  us  when  we  haven't  requested  it? 
The  Oourt:  I  say  I  have  a  right  to  wheth- 
er you  ask  it  or  not.  Mr.  Badgley:  Your 
Honor  said  you  did  open  it.  The  Court:  It 
means  the  same  tiling.  I  permit  it  to  be 
opened  if  you  want  it  opened.  That's  all 
there  Is  of  it  And  it  may  go  on  record  that 
counsel  for  defense  don't  ask  to  put  in  any 
further  testimony  or  for  any  time  in  which 
to  put  in  any  further  testimony,  and  your 
argument  may  proceed." 

That  a  trial  court  may  in  the  exercise  of 
a  sound  discretion  reopen  a  case  for  the  pur- 
pose of  admitting  testimony  on  behalf  of  ei- 
ther the  prosecution  or  defense  is  not  open 
to  question.  See  People  v.  Klndra,  102  Mich. 
147,  eo  N.  W.  468;  Thompson  v.  Ellsworth, 
39  Mich.  719.  For  other  states,  see  12  Cyc. 
pp.  5S9-561.  In  exercising  his  discretion  in 
reopening  the  case,  the  trial  Judge  seems  to 
have  taken  the  greatest  possible  care  to  pro- 
tect every  substantial  right  of  the  respond- 
ent. Upon  the  introduction  of  the  exhibits, 
his  counsel  were  ofFered  the  opportunity  to 
object  or  put  in  any  testimony  which  the 
admission  of  the  exhibits  might  make  neces- 
sary. No  advantage  was  taken  of  this  of- 
fer by  respondent's  counsel,  and  we  must 
conclude  that  no  such  testimony  would  have 
been  ottered  by  respondent  had  the  exhibits 
been  offered  at  the  time  of  their  identifica- 
tloB  by  the  various  witnesses. 

It  Is  unnecessary  to  consider  the  fourth 
contention  of  respondent 

The  fifth  Is  ruled  by  the  determination  of 
this  court  in  th»  case  of  People  v.  Vitall,  120 
N.  W.  10<^ 

The  conviction  Is  affirmed. 


STARKWEATHEB   v.   THOBINGTON'S 
ESTATE. 

(Supreme  Court  of  Michigan.     July  6,   1909.) 

Appeal  and  Esbob  (g  787*)— Writ  of  Ebbob 
— DisMissAi/— Want  or  Pboskcution. 

Verdict  for  proponent  of  a  will  was  en- 
tered on  April  16,  1908.  Time  for  moving  for 
a  new  trial  or  to  settle  bill  of  exceptions  was 
extended  to  December  7,  1908.  On  October 
26.  1908.  the  Judge  denied  the  motion  for  a 
new  trial  and  filed  his  reasons.  No  full  tran- 
script of  the  testimony  was  made,  though  one 
was  ordered  and  countermanded.  A  writ  of 
error  was  issued  on  April  16,  1909,  returnable 
May  25tb.  No  motion  was  made  for  an  ex- 
tension of  time  within  which  the  writ  of  er- 
ror might  be  returned,  but  the  appellant  moved 
to  remand  to  the  lower  court  to  hear  certain 


motions.  Held,  that  the  writ  of  error  should 
be  dismissed  for  want  of  prosecution,  as  th« 
facts  showed  neither  diligence  nor  good  faith. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {{  3129,  8180;  Dec  Dig.  f 
787.*] 

Action  by  John  L.  Starkweather  against 
the  estate  of  Maria  S.  Thorlngton,  deceased. 
From  a  Judgment  rendered,  plaintiff  brings 
error.  Motion  to  dismiss  writ  of  error. 
Oranted. 

Argued  before  BLAIB,  C.  J.,  and  MONT- 
GOMEBY,  GBANT,  OSTBANDEB,  and 
BBOOKE,  JJ. 

James  G.  Tucker,  for  the  motion.  John  It. 
Starkweather,  opposed. 

BBOOKE,  J.  This  Is  a  motion  to  dismiss 
a  writ  of  error  Issued  out  of  this  court  in 
the  above-entitled  cause  on  April  16,  1909, 
for  want  of  prosecution.  Attached  to  the  m<v 
tlon  is  a  sworn  copy  of  the  Journal  entries 
in  the  circuit  court  for  Macomb  county,  front 
which  it  appears  that  a  verdict  for  the  pro- 
ponent of  the  will  was  entered  on  the  16th 
day  of  April,  1908.  The  time  for  moving  for 
a  new  trial  or  settle  a  bill  of  exceptions  ac- 
cording to  said  entries  appears  to  have  been 
extended  to  December  7,  1908.  In  the  mean- 
time a  motion  for  a  new  trial  had  been  made 
to  the  circuit  Judge,  and  upon  October  26. 
1908,  said  motion  was  denied.  From  the 
Journal  entries  it  is  apparent  that  the  trial 
lasted  from  April  1  to  16,  1908,  inclusive. 
The  affidavit  of  the  stenographer  is  attached 
to  the  motion,  and  shows  that  up  to  the  pres- 
ent time  no  full  transcript  of  the  testimony 
has  been  mad&  One  was  ordered  by  the  con- 
testant in  the  spring  of  1908,  but  said  order 
was  later  countermanded.  Some  excerpts 
thereof  have  been  made,  and  have  been  sent 
to  the  court  The  writ  of  error  issued  on 
April  16,  1909,  was  made  returnable  on  May 
25,  1909.  No  motion  has  been  made  on  be- 
lialf  of  the  contestant  for  an  extension  of 
time  within  which  the  writ  of  error  might  be 
returned,  which  might  have  l)een  done  under 
rule  7.  On  the  contrary,  he  has  made  a  mo- 
tion "to  remand  this  cause  to  the  circuit 
court  Macomb  county,  and  for  Judge  Erskine 
to  hear  and  determine  the  motion  and  peti- 
tions pending  before  the  circuit  court  of  said 
county  at  the  end  of  the  year,  which  by  the 
practice  Is  the  time  allowed  for  a  motion  for 
a  new  trial  for  settling  a  bill  of  exceptions 
(said  Circuit  Judge  Erskine  being  in  Europe 
at  the  end  of  the  year)."  As  before  noticed, 
the  circuit  Judge  had  already  on  October  26, 
1908,  formally  denied  the  contestant's  mo- 
tion for  a  new  trial,  filing  written  reasons 
for  said  denial.  So  far  as  it  Is  possible  to 
understand  the  contestant's  position  from 
the  papers  before  us.  It  Is  apparent  that  he 
desires  the  case  remanded  to  the  circuit  court 
for  the  purpose  of  ebtalnlng  the  decision  of 
the  circuit  Judge  upon  bis  supplemental  peti- 


•For  other  caiei  see  lame  topic  and  section  NUMBER  In  Dec.  *  Am.  Diss.  1907  to  date,  *  Reporter  Indeza 


Digitized  by  VjOOQ  l€ 


lUcfaj 


BOARD  OF  SUP'BS  ▼.  MUNSON. 


U7 


tions  for  a  rehearing  or  Ms  motion  for  a 
new  trial.  Taking  Into  account  the  circuit 
court  Journal  entries  which  are  before  us 
Indicating  the  failure  of  contestant  to  have 
his  time  properly  extended  to  settle  bill  of 
ezceptiona,  his  failure  to  order  a  copy  of 
the  testimony,  and  the  further  fact  that  up 
to  the  present  time  no  proposed  bill  of  ex- 
ertions has  been  settled  or  even  served  on 
the  attorney  for  the  estate,  we  are  of  opinion 
that  It  cannot  be  said  that  contestant  Is  at- 
tempting to  prosecute  his  appeal  with  dili- 
gence or  In  good  faith. 

The  motion  to  remand  of  contestant  will  be 
denied,  and  the  motion  on  the  part  of  the 
estate  for  a  dismissal  of  the  writ  of  error 
Is  granted,  with  costs. 


BOABD  OF  SUP'RS  OF  QBATIOT  COUN- 
TY T.  MDNSON,  County  QTreasarer. 
(Supreme  Conrt  of  Michigan.    July  6,  1909.) 

1.  PAKtnS    (f    96*)— BlOHT    TO    Sue— AlCXND- 


An  objection  that  mandamus  to  compel  a 
county  treasurer  to  deposit  public  moneys  with 
the  designated  depository  shonld  liave  been 
brought  m  the  name  of  the  county,  instead  of 
the  board  of  supervisors,  could  be  cured  by 
amendment. 

[Ed.  Note.— For  other  cases,  see  Parties,  Dec. 
Dig.  i  95.»] 
2.  CxBnoBAXi  (I  4*)  —  SooFB  or  Wbit  — 

AXENDABLB  DlFBOr. 

Certiorari  will  not  be  granted  to  vacate  an 
order  which  might  be  corrected  by  amendment, 
bnt  the  record-  would  be  remanded  for  cor- 
rection. 

[Ed.  Note. — For  other  cases,  see  Certiorari, 
Dec  Dig.  S  4.*] 
8.  GoirantiTDTioHAi.  Law   d  102*)  — Vxsted 

RiOBTS— PCBLIO    OfFICEBS. 

No  existing  or  vested  right  of  a  county 
treasurer  was  impaired  by  Loc.  Acts  1907,  p. 
3ffi2,  No.  461,  requiring  the  supervisors  of  O. 
county  to  designate  a  county  depository,  and 
requiring  coun^  ofiSceis  to  deposit  county  funds 
therein,  where  such  act  was  m  force  before  the 
county  treasurer  took  office. 

[EM.  Note.— For  other  cases,  see  Constitution- 
al Law,  Dec  Dig.  {  102.*] 

4.  DCPOSRABIKS  «  8*)— COUHTT  FlTMDS— ClTB- 

Tonr. 

The  fact  that  the  office  of  county  treasurer 
Is  a  constitutional  one,  and  that  he  Is  required 
to  insure  the  safety  of  county  funds  deposited 
in  his  hands,  does  not  entitle  liim  to  the  arbi- 
trary custody  of  the  funds  at  all  times,  nor 
prevent  the  Legislature  from  requiring  him  to 
deposit   them  with  a  county  depository. 

[Ed.  Note.— For  other  cases,  see  Depositaries, 
Dec  Dig.  f  &*] 

&  DEFOSITABin   (t  8*)  —  COUNTT   FUITDB  — 

Statotzs— CoifSTBtrcnoii- "Aix  OzmcB  Or- 

Loc  Acta  1907,  p.  362,  No.  461,  makes  the 
county  treasurer  of  G.  county,  except  in  cer- 
tain cases,  the  custodian  of  public  funds  of 
the  county,  and  requires  those  into  whose 
hands  funds  come  to  turn  them  over  to  the 
treasurer.  Section  6  makes  it  the  dutv  of  the 
county  treasurer  and  "all  other  officers"  of  the 
county  having  county  funds  in  their  possession 
or  under  their  control  to  deposit  them  In  the  de- 


positories designated  by  the  board  of  supervisors. 
Beld,  that  the  words  "all  other  officers"  should 
be  construed  to  inclnde  deputies  of  the  treas- 
urer and  persons  appointed  to  perform  the  du- 
ties of  treasurer,  as  authorized  by  Comp.  Laws 
1897,  8  2537,  but  who  are  not  designated  as 
treasurer. 

[Ed.  Note.— For  other  cases,  see  Depositaries, 
Dec.  Dig.  i  8.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  1.  p.  S3&1 

6.  Banks  and  Bankiro  ({  260*)— Nationai, 
Banks — Secubitt  fob  Deposits. 

The  execution  of  a  bond  by  a  national  Iiank 
to  secure  county  deposits  does  not  constitute 
an  Increase  of  tte  bank's  liability,  in  violation 
of  Rev.  St  i  6202  (U.  S.  Comp.  St.  1901,  p. 
3494),  declaring  that  no  national  banking  as- 
sociation shall  at  any  time  be  indebted  or  liable 
to  an  amount  exceeding  its  capital  stock  ac- 
tually^  paid  in,  except  on  account  of  moneys 
deposited  with  or  collected  by  the  association. 

[Ed.  Note.— For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  |  260.*] 

7.  Depositaries  ({  7*)— Countt  Funds— S»- 
OUBITT  or  Depobitobt. 

Where  a  bond  executed  by  a  designated 
county,  depository  gave  full  security,  not  only  of 
the  principal,  but  of  the  sureties  for  the  deposit, 
the  county  treasurer  could  not  refuse  to  deposit 
county  funds  with  the  bank  because  it  did  not 
appear  that  the  president  and  cashier  had  au- 
thority to  sign  the  bond. 

[Ed.  Note.— For  other  cases,  see  Depositaries, 
Dec.  Dig.  I  7.*] 

Certiorari  to  Circuit  Court,  Oratlot  Coun- 
ty ;  William  O.  Cage,  Judge. 

Mandamus,  on  relation  of  the  Board  of  Su- 
pervisors of  Oratlot  County,  against  Harvey 
R.  Munson,  county  treasurer,  to  compel  the 
deposit  of  public  money  In  a  designated  de- 
pository. From  a  Judgment  granting  the 
writ,  defendant  brings  certiorari.    Affirmed 

Argued  before  MONTGOMERY,  OSTRAN- 
DER,  BOOKER,  MOORE,  and  McALVAY,  JJ. 

Lyon  &  Moinet  (M.  R.  Salter,  of  counsel), 
for  appellant  John  M.  Bverden,  Pros.  Atty., 
and  William  A.  Bahlke,  for  appellee. 

MONTGOMERY,  J.  This  is  certiorari  to 
review  a  mandamus  proceeding  instituted  by 
the  relator  in  the  circuit  conrt.  Mandamus 
was  asked  to  compel  the  respondent,  who 
was  county  treasurer,  to  deposit  the  public 
moneys  belonging  to  the  county  In  the  de- 
pository designated  by  the  board  of  super- 
visors under  the  provisions  of  Loc.  Act 
1907,  No.  461,  p.  362.  The  circuit  Judge 
granted  the  writ  as  prayed.  The  respondent 
contended  In  that  court  and  In  this,  first, 
that  the  proceedings  were  not  properly 
launched  and  should  have  been  In  the  name 
of  the  county  rather  than  in  the  name  of  the 
board  of  supervisors,  and  on  the  merits  of 
the  case  contended  that  the  act  in  question 
was  unconstitutional  for  various  reasons. 
The  objection  that  the  suit  should  be  brought 
in  the  name  of  the  county  is  purely  technical, 
as  the  title  is  very  clearly  subject  to  amend- 
ment See  Johr  v.  St  Clair  Supervisors,  38 
Mich.  682.    And  we  should  not  use  the  writ 


•Tor  oUisr  eases  s«*  sasM  topic  and  section  NTJUBBR  In  Dsc  *  Am.  Dig*.  VXn  to  date,  *  Reportsr  Index** 


Digitized  by  VjOOQ  l€ 


118 


122  NORTHWESTERN  BBPOfiTER. 


(lilch. 


of  certiorari  to  racate  an  order  which  might 
be  corrected  bj  amendment.  The  most  that 
we  should  feel  called  upon  to  do  In  any  event 
would  be  to  remand  the  record  for  correc- 
tion. We  therefore  proceed  to  consider  the 
merits  of  the  case. 

Loc.  Act  No.  461,  above  referred  to,  Is  an 
act  entitled  "An  act  authorizing  and  requir- 
ing the  board  of  supervisors  of  Oratlot  coun- 
ty to  designate  a  local  bank  or  banks  as  the 
depository  or  depositories  of  Gratiot  county 
moneys,  and  prescribing  the  duties  of  cer- 
tain oflScers  relative  thereto."  The  act  pro- 
vides for  receiving  bids  for  the  deposits  from 
the  banks  in  the  county,  for  the  awarding  of 
the  contract  to  the  most  favorable  bidder, 
and  for  the  giving  of  security  by  such  banks, 
and  provides  that  all  interest  moneys  earned 
shall  be  credited  to  the  contingent  fund  of 
the  county,  and  contains  a  further  provision 
that  "it  shall  be  the  duty  of  the  county  treas- 
urer and  all  other  officers  of  the  county  hav- 
ing said  funds  or  any  part  thereof  In  their 
possession  or  under  their  control,  to  deposit 
the  same  In  the  depositories  so  designated  by 
the  board  of  supervisors."  Various  reasons 
are  assigned  why  this  act  is  unconstitution- 
al :  First,  it  is  allied  that  it  impairs  the  ob- 
ligation of  contract,  and  an  elaborate  discus- 
sion is  had  to  maintain  this  proposition.  So 
far  as  the  act  affects  the  respondent,  it  may 
be  said  that  it  was  is  force  before  he  took 
office.  No  existing  or  vested  right  in  the  re- 
spondent therefore  could  be  said  to  have  ac- 
crued which  was  impaired  by  this  act. 

It  Is  also  contended  that  the  office  of  coun- 
ty treasurer  is  a  constitutional  office,  and 
we  infer  from  the  argument  that  It  Is  the 
understanding  of  counsel  that  the  control  of 
the  public  funds  by  the  Legislature  is  in 
some  way  restricted  by  this  fact.  It  is  urg- 
ed that  the  county  treasurer,  who  gives  a 
bond  required  by  law,  is  an  insurer  of  the 
money  deposited  in  his  hands,  and  that, 
therefore,  control  of  the  same  cannot  be  tak- 
en from  him  and  placed  in  another  deposi- 
tory. The  case  of  Perley  v.  County  of  Musk- 
egon, 32  Mich.  182,  20  Am.  Rep.  037,  is  re- 
lied upon  to  sustain  this  view.  But  under  sec- 
tion 1197  et  seq.,  Comp.  Laws,  comprising  an 
act  entitled,  "An  act  to  provide  for  the  safe- 
keeping of  public  moneys,"  the  segregation 
of  such  public  funds  is  provided  for,  and  It 
is  clearly  within  the  power  of  the  Legisla- 
ture to  insure  the  safety  of  such  funds.  See, 
upon  this  subject,  Board  of  Supervisors  of 
Kent  C!onnty  v.  Verkerke,  128  Mich.  202,  87 
N.  W.  217,  92  Am.  St.  Rep.  450,  in  which 
these  sections  are  construed,  and  in  which 
case  it  was  held  that  the  interest  on  moneys 
deposited  in  a  designated  depository  belong 
to  the  county,  and  not  to  the  treasurer. 

It  is  also  contended  that  the  act  is  broad- 
er than  Its  title,  and  this  contention  is  based 
upon  the  provisions  of  section  5,  which  make 
it  the  duty  of  the  county  treasurer  of  said 


county,  "and  all  other  officers  of  said  coun- 
ty having  said  funds  or  any  part  thereof  in 
their  possession  or  under  their  control,  to 
deposit  the  same  in  the  depositories  so  desig- 
nated by  the  board  of  supervisors."  This  act 
Is  to  be  construed  In  connection  with  other 
provisions  of  the  statute.  Repeals  by  impli- 
cation are  not  favored.  The  treasurer,  ex- 
cept in  certain  cases,  is  made  the  custodian 
of  public  funds  of  the  county,  and  the  duty 
Is  Imposed  upon  those  into  whose  hands 
funds  come  to  turn  them  over  to  the  treasur- 
er. We  do  not  ttiink  the  purpose  of  the  Leg- 
islature as  manifested  by  this  provision  was 
to  amend  or  repeal  these  other  provisions. 
As  pointed  out  by  the  learned  circuit  Judge, 
"all  other  officers  of  said  county"  may  be 
held  to  have  Included  deputies  of  the  treas- 
urer and  persons  "appointed  under  Comp. 
Laws,  {  2537,  to  perform  the  duties  of  the 
treosurer,  but  who  are  not  designated  as 
treasurer."  This  construction  does  no  vio- 
lence to  the  other  provisions  of  the  statute, 
and  gives  effect  to  the  provisions  quoted. 

It  is  next  contended  that  the  contract  and 
bond  of  the  Ithaca  National  Bank,  the  desig- 
nated custodian,  is  ultra  vires  under  the  na- 
tional bank  act.  Section  5202,  Rev.  St  (U. 
S.  Comp.  St.  1901,  p.  8494),  which  reads: 
"No  association  shall  at  any  time  be  Indebt- 
ed, or  in  any  way  liable  to  an  amount  ex- 
ceeding the  amount  of  its  capital  stock  at  sucb 
time  actually  paid  In  and  remaining  undi- 
minished by  losses  or  otherwise,  except  on 
account  of  demands  of  the  nature  following : 
First  Notes  of  circulation.  Second.  Moneys 
deposited  with  or  collected  by  the  associa- 
tion. Third.  Bills  of  exchange  or  drafts 
drawn  against  money  actually  on  deposit  to 
the  order  of  the  association,  or  due  thereto. 
Fourth.  Liabilities  to  the  stockholders  of 
the  association  for  dividends  and  reserved 
profits."  The  second  exception  above  quoted 
would  seeni  to  be  sufficiently  broad  to  cover 
a  bond  given  to  secure  deposits.  The  lia- 
bility of  the  bank  is  not  increased  by  the 
fact  that  it  enters  Into  a  written  agreement 
to  pay  money  deposited.  It  has  not  under- 
taken in  excess  of  the  amount  of  Its  capital 
stock  except  in  this  form.  It  Is  urged  that 
the  record  falls  to  show  the  authority  of  the 
president  and  cashier  to  sign  the  bond  given 
by  the  Ithaca  National  Bank.  This  objection 
is  purely  technical.  The  bond  given  con- 
tained the  provision  that  "the  liability  of  the 
sureties  on  this  bond  shall  be  independent 
of  the  liability  of  the  principal  thereon  In 
accordance  with  the  terms  and  provisions  of 
said  contract  and  the  rules  and  regulations 
under  which  the  same  is  prepared  and 
adopted."  It  is  unnecessary  to  determine 
whether  the  authority  of  the  president  and 
cashier  to  execute  this  bond  is  implied  from 
the  bid  which  it  made  to  the  county  and  the 
receipt  of  deposits.  The  county  has  the  full 
security,  not  only  of  the  principal,  but  of  the 
sureties  for  the  deposit    The  defendant  la 


Digitized  by 


Google 


Mich.) 


BIXLER  y.  FET. 


119 


not  In  a  poBltloii  to  complain  of  any  tedinl-. 
cal  irregularity,  If  any. 

The  order  of  the  circuit  court  will  be  af- 
firmed. 


BIXLEB  T.  FfeT. 
(Sapreme  Court  of  Michigan.     July  6,  1909.) 

1.  Fkaudulewt    Convetawces    (I    239*)    — 

SAI.E8    OF    MEBCBANOISE     IN     BULK — REME- 
DIES or  Cbeditob— Statutes. 

Pub.  AcU  190o,  p.  322,  No.  223,  regulating 
the  sale  of  merchandise  in  balk,  and  making 
tales  not  in  accordance  therewith  void  as 
against  the  creditors  of  the  seller,  does  not  give 
a  creditor  of  the  seller  an  exclusive  remedy, 
and  does  not  exclude  equitable  interference 
where  warranted  under  the  general  rules. 

[Ed.  Note. — For  other  cases,  see  Fraudulent 
Conveyances,  Cent.  Dig.  {{  tt81-(!83;  Dec.  Dig. 
{239.*] 

2.  Fraudttlewt  Convbtances  (|  255*)— Ac- 
tions—Pabtibs. 

In  a  suit  by  a  creditor  of  one  who  sold 
merdtondise  in  bulk  without  complying  with 
Pub.  Acts  1905,  p.  322,  No.  223,  regulating  such 
sales,  the  seller  is  a  necessary  party. 

[Ed.  Note.— For  other  cases,  see  Fraudulent 
Conveyances,  Cent  Dig.  |  743;  Dec.  Dig.  f 
255.*] 

3.  Fbaudux,ent  Conveyances  (J  241*)- Rem- 
edies of  Cbeditobs— Judgment  Cbeditors. 

Only  a  judgment  creditor  can  attack  a  sale 
of  merchandise  in  bulk,  made  by  his  debtor 
without  complying  with  Pub.  Acts  1905,  p.  822, 
No.  223,  regulating  such  sales. 

[Ed.  Note.— For  other  cases,  see  Fraudulent 
Conveyances,  Cent.  Dig.  S  697:  Dec.  Dig.  S 
241.»] 

4.  Equity  (S  43*)  —  Adequate  Legal  Rem- 
edy. 

Equity  will  ordinarily  deny  relief  where 
complainant  has  an  adequate  remedy  at  law. 

[Ed.  Note. — For  other  cases,  see  Equity,  Cent. 
Dig.  S  121 ;   Dec  Dig.  i  43.*] 

5.  Fbauduxent  Conveyances  (§  239*)— Set- 
TiNO  Aside— Adequacy  op  Legal  Remedy. 

Where  a  sale  of  merchandise  in  bulk  is 
made  without  complying  with  Pub.  Acts  1905, 
p.  322,  No.  223,  regulating  such  sales,  a  creditor 
of  the  seller  cannot  resort  to  eaiiity  to  avoid 
the  sale  and  for  a  receiver  without  showing 
that  his  remedy  at  law  is  inadequate. 

[Ed.  Note. — For  other  cases,  see  Fraudulent 
Conveyances,  Cent.  Dig.  }$  681-683 ;  Dec  Dig. 
1239.*] 

Moore  and  Brooke,  JJ.,  dissenting. 

Appeal  from  Circuit  Court,  Leelanan  Coun- 
ty, In  Chancery ;  Frederick  W.  Mayne,  Judge. 

Suit  by  Miles  F.  Bizler  against  John  Fry. 
JVom  a  decree  overruling  a  demurrer  to  the 
bin,  defendant  appeals.  Reversed  and  re- 
manded. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDEB,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

John  J.  Tweddle,  for  appellant  Amil  F. 
Nerllnger,  for  appellee. 


OSTRANDER,  J.  Complainant  charges  In 
his  bill  of  complaint  that  he  is  a  creditor  of 
R.  S.  Drew,  and  tliat  there  are  other  creditors 


of  said  Drew  wbose  names  and  the  amount 
of  whose  demands  he  is  unable  to  state ;  that 
said  Drew  sold  bis  stock  of  merchandise  to 
the  defendant,  who  claims  to  have  paid  the 
purchase  price,  without  complying  with  the 
provisions  of  Act  No.  223,  p.  322,  of  the  Pub- 
lic Acts  of  1905;  that  the  sale  was  void  as 
to  creditors  of  Drew,  who  has  no  other  prop- 
erty or  effects  or  means  out  of  which  credit- 
ors can  secure  their  demands.  In  behalf  of 
himself  and  of  all  other  creditors  of  said 
Drew,  he  prays  that  a  receiver  of  said  goods 
may  be  appointed,  an  accounting  h&d,  the 
property  disposed  of,  and  the  proceeds  dis- 
tributed to  creditors.  It  Is  not  charged  that 
the  complainant  Is  a  Judgment  creditor  of 
Drew.  It  Is  not  charged  that  defendant.  Fry, 
Is  pecuniarily  Irresponsible.  To  this  bill  de- 
fendant. Fry,  Interposed  a  demurrer,  the 
third  groimd  of  which  Is  the  nonjoinder  of 
Drew  as  a  party  defendant,  the  fourth  ground 
that  complainant  has  not  recovered  a  Judg- 
ment at  law  against  Drew,  and  the  fifth 
ground  that  the  complainant  has  an  adequate 
remedy  at  law.  It  was  held  In  Musselman  v. 
KIdd,  etc.,  Co.,  151  Mich.  478,  115  N.  W.  409, 
that  a  purchaser  may  be  garnished  by  the 
creditor;  expressly  overruling  the  contention 
that  a  receiver  must  be  appointed  to  hold  the 
property  sold  for  the  benefit  of  all  creditors 
of  the  seller.  This  ruling  necessarily  dispos- 
ed of  the  contentions  that  the  statute  itself 
provided  for  or  Indicated  a  proceeding  In 
rem  or  for  the  exclusive  Jurisdiction  of  a 
court  of  equity.  This  construction  of  the 
statute  also  excludes  the  Idea  that  In  the  stat- 
ute Itself  is  found  provision  for  the  co-ordin- 
ate Jurisdiction  of  courts  of  equity  and  of 
law.  The  most  that  can  be  said  is  that  the 
statute  does  not  necessarily  exclude  equitable 
Interference,  If  such  Interference  Is  warrant- 
ed under  general  rules.  It  Is  one  of  the  ele- 
mentary rules  of  equity  pleading  that  neces- 
sary parties  shall  be  brought  upon  the  rec- 
ord. The  debtor,  the  person  against  whom 
the  demand  of  the  complainant  Is  asserted, 
the  party  to  the  contract  which  Is  the  founda- 
tion of  complainant's  right  to  proceed  at  all, 
the  person  charged  with  making  a  void  sale 
of  his  property.  Is  a  necessary  party  defend- 
ant. But,  further  than  this,  we  are  referred 
to  no  rule  which  permits  the  maintenance  of 
the  bill,  even  with  proper  parties,  by  one 
who  Is  not  a  Judgment  creditor.  The  right 
to  attack  a  void  sale  or  transfer  of  property 
Is  no  other  or  different  tban  the  right  to  at- 
tack a  sale  or  transfer  voidable  merely.  A 
court  of  equity  Is  open  to  a  Judgment  creditor 
to  attack  and  set  aside  transfers  of  property 
made  by  his  debtor.  If  It  appears  that  com- 
plainant has  an  adequate  remedy  at  law.  Ju- 
risdiction will  ordinarily  be  denied.  That 
complainant  here  has  a  remedy  at  law  must 
be  admitted.  It  Is  not  made  to  appear  that 
the  remedy  Is  Inadequate.  The  learned  trial 
court  was  of  opinion  that  to  delay  the  ap- 


•Por  other  cues  see  ■am*  topic  aod  aection  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  data,  *  Reporter  Indexes 


Digitized  by 


Google 


120 


122  NORTHWESTERN  RBPORTEB. 


(Mich. 


polntment  of  a  receiver  until  creditors  had 
recovered  Judgments  might  render  the  stat- 
ute of  no  benefit  to  creditors,  and,  without 
passing  upon  the  contention  that  Drew  is  a 
necessary  party  defendant,  acted  upon  what 
was  deemed  the  necessity  of  the  case  In  over- 
ruling the  demurrer. 

We  are  of  the  opinion  that  the  bill  makes 
no  case  for  the  appointment  of  a  receiver  and 
that  the  demurrer  thereto  should  be,  for  the 
reasons  given,  sustained.  Order  overruling 
the  demurrer  Is  reversed,  with  costs  of  both 
courts.  The  record  will  be  remanded  for 
further  proceedings  as  complainant  may  be 
advised. 

BLAIR,  0.  X,  and  GRANT  and  HOOKER, 
JJ.,  concurred  with  OSTRANDER,  J.  MONT- 
OOMERY,  X,  concurred  on  the  ground  of 
want  of  parties.  McALVAY,  J.,  concurred 
with  MONTGOMERY,  X 

MOORE,  X  (dissenting).  The  material 
portions  of  the  bill  of  complaint  filed  in 
this  case  are  in  substance  as  follows: 

"Your  orator,  Miles  F.  Blxler,  files  this 
bill  of  complaint  In  behalf  of  himself  and 
all  other  creditors  of  one  R.  S.  Drew,  whose 
Christian  name  Is  unknown ;  that  R.  S.  Drew 
became  indebted  to  your  orator  in  the  sum 
of  one  hundred  twenty-eight  dollars,  no 
part  of  which  has  ever  been  paid;  that 
the  said  R.  S.  Drew  also  became  Indebted 
to  other  creditors,  the  amounts  and  names 
of  which  your  orator  is  unable  to  give; 
that  on  or  about  the  14th  day  of  January, 
1007,  the  said  R.  8.  Drew  sold  to  one  John 
Fry  all  his  interest  and  the  entire  stock  of 
goods,  furniture,  and  fixtures  in  pc»session 
of  R.  S.  Drew;  that  said  stock  was  worth 
about  five  hundred  dollars,  and  about  one 
hundred  twenty-eight  dollars  thereof  was 
merchandise  sold  him  by  your  orator;  that 
the  sale  of  said  stock  of  merchandise  and 
the  said  fixtures  pertaining  to  the  said 
business  of  R.  S.  Drew  was  In  bulk,  and 
the  whole  thereof  transferred  to  the  said 
John  Fry  at  once,  and  was  not  sold  In  the 
ordinary  course  of  trade;  that  the  said  R. 
S.  Drew  or  John  Fry  or  either  of  them  had 
not  made  an  Inventory  of  said  stock  and 
fixtures,  and  the  said  John  Fry  did  not  de- 
mand and  receive  from  the  said  R.  S.  Drew 
any  written  list  and  names  and  addresses 
of  the  creditors  of  the  said  R.  S.  Drew 
with  the  amount  of  indebtedness  due  or 
owing  to  each  creditor  and  certified  by  the 
said  R.  S.  Drew,  under  oath  to  be  a  full, 
accurate  and  complete  list  of  his  creditors 
and  of  his  Indebtedness,  and  that  the  said 
John  Fry  had  not  at  any  time  before  taking 
possession  of  said  stock  of  merchandise, 
furniture  and  fixtures,  notified  personally,  or 
by  registered  mall  or  in  any  mann«'  what- 
ever, the  creditors  of  said  R.  S.  Drew,  or 
any  of  them,  of  the  proposed  sale,  of  the 
prices,  terms,  and  conditions  thereof  as  re- 
quired by  Act  No.  223,  p.  322,  of  the  Laws 


•f  the  state  of  Michigan  of  1905,  altfaougti 
'said  act  was  then  in  full  force  and  effect; 
that  said  sale  is  void  by  the  terms  of  said 
act;  that,  at  the  time  of  said  sale  as  your 
orator  Is  informed  and  believes,  the  said 
R.  S.  Drew,  had  no  property  or  means 
wherewith  to  pay  bis  creditors  the  amounts 
due  them,  or  out  of  which  their  several 
claims  or  any  of  them  could  be  collected, 
except  said  stock  of  goods  and  fixtures 
which  was  sold  as  aforesaid.  Your  orator, 
therefore,  in  behalf  of  himself  and  all  other 
creditors  of  said  R.  S.  Drew,  asks  the  aid 
of  this  court  In  the  premises,  he  being  reme- 
diless In  the  courts  of  the  common  law; 
that  said  John  Fty  be  decreed  to  hold  all 
of  said  stock,  furniture^  and  fixtures  as  re- 
ceiver and  in  trust  for  the  creditors,  etc., 

•  •  •;  that  your  orator  and  any  other 
creditors  of  said  R.  S.  Drew  may  have  such 
other  or  further  relief  in  the  premises  aa 
shall  be  agreeable  to  equity  and  'good  con- 
science." 

The  defendant  demurred  to  the  bill  for 
the  following  reasons:  "(1)  Because  the  mat- 
ters stated  and  charged  in  complainant's 
bill  of  complaint  do  not  entitle  complainant 
to  the  equitable  relief  therein  prayed  for. 

•  •  •  (3)  Because  of  the  nonjoinder  of 
B.  S.  Drew,  as  a  defendant  in  said  cause, 
(4)  Because  the  complainant  never  has  re- 
covered a  Judgment  against  said  R.  S.  Drew 
or  had  his  claim  otherwise  adjudicated.  (5) 
Because  said  complainant,  under  the  claim- 
ed facts,  has  a  full  and  adequate  remedy 
at  law  against  said  R.  S.  Drew,  and  Is  not 
entitled  to  commence  or  maintain  a  suit 
in  equity.  •  •  •  (7)  Because  under  the 
laws  and  practice  in  the  state  of  Michigan, 
where  the  distinction  between  the  law  and 
equity  cases  are  treated  separately  andt  dis- 
tinctly, a  court  of  chancery  has  no  power 
to  adjudicate  and  determine  the  validity 
and  legality  of  the  claim  arising  upon  con- 
tract" 

The  demurrer  was  overruled,  and  the  case 
is  brought  here  for  review.  Counsel  argue 
at  length  each  of  the  reasons  assigned  in 
the  demurrer.  The  complainant  Insists  that 
he  is  entitled  to  maintain  his  bill  under  the 
provisions  of  the  "Sales  in  Bulk  Act,"  so 
called,  being  Act  223,  p.  822,  Pub.  Laws 
1805.  Some  provisions  of  this  act  were 
construed  In  Sptirr  T.  Travis,  145  Mich.  721, 
108  N.  W.  1090,  116  Am.  St  Rep.  830;  Mus- 
selman  Grocer  Co.  v.  Kldd,  Dater  &  Price 
Co.,  151  Mich.  478,  115  N.  W.  409.  The 
questions  raised  by  this  record  have  not 
been  passed  upon  by  this  court  and,  so  far 
as  we  are  advised,  by  any  court  The  ef- 
fect of  the  demurrer  to  the  bill  is  to  admit 
the  truth  of  Its  averments.  These,  In  sub- 
stance, aver  a  sale  to  a  creditor  who  is  now 
Insolvent  and  who  has  sold  all  his  property 
to  the  defendant  under  circumstances  which 
makes  the  sale  void.  The  case  is  unlike 
the  two  cases  already  cited,  which,  were 
proceedings  In  behalf  of  a  single  creditor. 


Digitized  by  VjOOQ  IC 


Mlcb.) 


BAUER  T.  BOARD  OF  DENMARK  TP. 


121 


The  Ull  la  filed,  not  only  in  behalf  of  the 
complainant,  but  In  behalf  of  all  the  other 
credltota.  It  calls  for  an  accounting  and 
for  a  recelTership.  It  is  not  necessary  to 
quote  the  proTlslons  of  Act  No.  223,  p.  S22, 
Pub.  Laws  1906,  as  they  are  so  easily  access- 
ible, but  we  think  a  reading  of  them  es- 
tablishes the  authority  of  a  court  of  equity 
to  interfere  in  such  a  case  as  is  stated  in 
the  bill  of  complaint. 

The  decree  of  the  court  below  should  be 
afflnned. 

BROOE^,  X,  concurred  with  MOORB^  J. 


BATJHR  r.  BOARD  OF  DENMARK  TP. 
(Supreme  Court  of  Michigan.     July  6,   1909.) 

iKTOziCATHfG  Liquors  (i  88*)— Local  Op- 
noH— B^Ecnoit— NonoE— Sdfficienct. 
The  fact  that  the  county  clerk  published 
the  fint  notice  of  a  local  optioa  election  four 
days  short  of  the  period  prescribed  by  Corap. 
Laws  1807. 1 5417.  did  not  iuTalidate  the  election, 
where  it  appeared  that  few,  if  any,  electors  did 
not  TOte  the  proposition,  that  the  issue  was  dis- 
enased  throughout  the  territory,  and  that  a  ma- 
Jori^  <^  all  the  voters  voted  for  prohibition. 

IBi.  Note. — For  other  cases,  see  Intoxicating 
Luinors,  Cent.  Dig.  i  41 ;  Dec.  Dig.  g  83.*] 

Mandamus  by  Fred  Bauer  to  compel  the 
Township  Board  of  the  Township  of  Den- 
mark, Tuscola  County,  to  accept  bis  bonds 
as  a  liquor  dealer.    Petition  dismissed. 

The  relator,  a  saloon  keeper  in  the  town- 
ship of  Denmark,  Tuscola  county,  filed  bonds 
with  the  respondent  for  its  approval  under 
the  general  liquor  law  of  the  state.  The  re- 
spondent refused  to  accept  the  bonds,  for 
the  reason  that  at  the  last  election  the  ques- 
tion of  prohibition  under  the  so-called  local 
option  law  was  submitted  to  the  electors  of 
the  county  and  adopted.  The  relator  has 
applied  for  a  writ  of  mandamus  to  compel 
the  acceptance  of  bis  bonds,  claiming  that 
prohibition  was  not  legally  adopted  in  the 
county.  The  objection  made  to  the  validity 
of  the  election  is  that  notices  of  the  election 
were  not  published  for  three  successive 
weeks  prior  to  the  election,  as  required  by 
section  5417,  Comp.  laws.  The  facts  estab- 
lished by  the  petition  and  answer  are  as  fol- 
lows: "The  notices  were  published  in  the 
required  number  of  newspapers  on  March 
19th  and  26th  and  on  April  2d  previous  to 
the  election,  which  occurred  on  April  6th. 
They  were  also  duly  served  upon  the  town- 
ship clerks  on  March  15th,  16th,  and  17th. 
The  total  number  of  votes  cast  upon  the 
question  were  7,229,  of  which  4,406  were  for 
prohibition.  It  was  the  largest  vote  ever 
cast  in  the  county,  and  larger  than  the  total 
vote  cast  for  any  officer,  state  or  local,  at 
that  election,  which  was  a  general  one,  for 
state  and  township  officers.  Meetings  were 
held  in  every  township  for  and  against  the 


proposition.  It  was  also  discussed  for  weeks 
before  the  election  In  the  various  newspapers 
In  the  county,  and  In  the  chhrches,  and  the 
electors  were  well  Informed  as  to  the  time, 
place,  and  manner  of  the  election."  The 
first  publication  of  notice  was  four  days 
short  of  the  three  weeks  required  by  the 
statute.  Does  the  failure  to  publish  the  first 
notice  three  weeks  prior  to  the  election  In- 
validate it? 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Geer,  Williams  &  Halpin,  for  relator.  T. 
0.  Qulnn  (Felton  &  McGee,  of  counsel),  for 
respondent. 

GRANT,  J.  (after  stating  the  facts  as 
above).  No  question  is  or  can  be  raised  but 
tliat  all  electors  of  the  county  were  as  well 
informed  of  the  time,  place,  and  manner  of 
the  election,  and  of  the  issue  Involved,  as 
they  would  have  been  if  the  first  publication 
had  been  four  days  earlier.  Probably  no 
issue  before  the  people  was  ever  more  fully 
discussed  and  more  thoroughly  understood 
by  the  electors.  The  answer  of  the  respond- 
ent shows  that  there  were  but  few  of  the 
electors  of  the  county  who  did  not  vote  on 
the  question,  and  that  those  voting  In  the 
affirmative  constituted  a  majority  of  all  the 
qualified  voters  of  the  county.  The  answer 
of  the  respondent  avers  that  those  voting  iu 
the  affirmative  constituted  a  majority  of  all 
the  qualified  voters  of  the  county.  An  ex- 
amination of  previous  elections,  and  of  the 
one  now  in  controversy  on  state  and  local 
offices,  establishes  beyond  doubt  the  truth 
of  the  assertion.  It  is  not  questioned  In  the 
relator's  brief,  and,  as  the  case  is  heard  up- 
on pleadings,  the  answer  must  be  taken  as 
true.  The  majority  In  favor  of  prohibition 
was  1,583.    No  fraud  Is  charged. 

If  such  an  election  Is  to  be  held  invalid, 
and  the  decisive  will  of  the  people  thwarted 
by  the  mistake  of  the  county  clerk  in  falling 
to  publish  the  notice  for  the  exact  time,  It 
must  be  because  the  rules  of  law  are  so  In- 
exorable that  they  will  never  tolerate  a 
harmless  error  or  mistake  of  a  ministerial 
officer.  Probably  no  case  can  be  found  la 
the  books  which  shows  a  >vlder  publicity,  a 
more  thorough  and  open  discussion,  and  a 
more  complete  knowledge  of  the  Issue  to  be 
voted  upon.  A  canvass  was  made  In  every 
township  to  secure  the  requisite  number  of 
petitioners,  the  requisite  petitions  were  ob- 
tained, were  presented  to  the  board  of  super- 
visors. That  board,  more  than  five  months 
preceding  the  election,  duly  made  proclama- 
tion that  the  requisite  number  of  petitions 
had  been  filed,  and  that  tbe  proposition 
would  be  voted  upon  at  the  next  general 
election  to  be  held  on  April  5th.  This  proc- 
lamation was  duly  spread  upon  the  public 
records  of  the  board  of  supervisors,  and  the 


•Tor  other  caiw  m*  same  topic  and  lection  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


122 


122  NORTHWESTERN  REPORTER. 


(Ulcb. 


record  thereof  published  In  the  newspapers 
of  the  county.  There  were  but  few,  If  any, 
electors  who  did  not  vote  upon  the  proposi- 
tion. There  Is  no  showing  or  claim  that  any 
voter  In  the  county  did  not  understand  the 
Issue  and  was  not  afforded  an  opportunity 
to  vote.  A  ministerial  officer — ^the  county 
clerU — failed  in  his  duty  to  publish  the  first 
notice  within  the  exact  time  required  by  the 
statute.  It  must  be  conceded  that  a  four 
days'  earlier  notice  would  have  been  of  no 
benefit  to  the  electors.  A  technical  violation 
on  the  part  of  a  ministerial  ofllcer  Is  the  sole 
ground  for  setting  aside  the  deliberate  deci- 
sion of  the  people  of  a  county,  after  the  full- 
est and  freest  discussion  possible. 

We  choose  to  rest  our  decision  In  this 
case  upon  the  fact  that  a  strict  compliance 
with  the  law  as  to  notice  would  have  made 
no  difference  with  the  result  of  the  election, 
Inasmuch  as  a  majority  of  all  the  voters  of 
the  county  voted  for  prohibition.  Under 
snch  circumstances,  omissions  of  duty  by 
ministerial  officers  In  giving  notice  will  not 
Invalidate  the  election.  Seymore  v.  Tacoma, 
6  Wash.  427,  33  Pac.  1059;  State  v.  Doherty, 
16  Wash.  382,  47  Pac.  958,  58  Am.  St.  Rep. 
89;  Irving  v.  Gregory,  86  Ga.  605,  13  8.  R 
120.  See,  also.  People  v.  Highland  Parl£,  88 
Mich.  C53,  60  N.  W.  660;  Dlshon  v.  Smith,  10 
Iowa,  212. 

The  petition  will  therefore  be  dismissed, 
with  costs. 


WIGHTMAN  V.  VILLAGE  OP  TECUMSEH 

et  al. 
(Supreme  Court  of  Michigan.    July    6,  1909.) 

1.  MUNICIPAI.    CORPOBATIONS    (J    918*)— BOHO 

Issue— EuECTioN . 

The  notice  of  a  special  villaKe  election 
showed  that  It  was  to  be  held  for  the  purpose 
of  voting  on  the  question  whether  the  village 
should  issue  bonds  for  the  construction  of  sew- 
ers, and  it  appeared  that  there  was  a  full  dis- 
cussion of  tne  subject  precedine  the  election. 
Held,  that  the  fact  that  the  ballots  instead  of 
reading  "Shall  a  village  loan  «  «  ♦  for  sew- 
er purposes  be  autliorized?"  as  prescribed  by 
the  council,  omitted  the  words  "for  sewer  pur- 
poses" did  not  invalidate  the  election. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  SS  1919-1023;  Dec. 
Dig.  i  918.*] 

2.  MuNiciPAi.  Corporations  (S  918*)- Bond 
Issue— Election. 

Votes  cast  at  a  village  election  to  deter- 
mine the  question  of  a  bond  issue,  which  were 
illegal  because  of  distinguishing  marks,  could 
not  be  counted  to  determine  whether  the  requi- 
site two-thirds   vote   had   been  cast. 

[E!d.  Note.— For  other  cases,  see  Municipal 
Corporations,  Dec.  Dig.  {  018.*] 

3.  MuNiciPAi,  Corporations   ({   863*)  — Iw- 

DEBTEDNKSS— LiKITATION. 

Comp.  Laws  1897,  i§  2852-2857,  provide 
for  village  taxes  for  different  purposes,  prescrib- 
ing a  limit  in  each  case,  and  section  2873  pro- 
vides that,  should  any  greater  amount  be  re- 
?[Uired  in  any  year  for  the  purchase  of  grounds 
or  erecting  public  buildings  or  other  necessary 


corporate  purposes  than  can  l>e  raised  "under  the 
foregoing'  provisions,"  such  amount  may  be 
raised  by  tax  or  loan,  and  that  "the  amount 
that  may  be  raised  in  any  year,  under  this  sec- 
tion, shall  not  exceed  two  per  cent,  of  the  as- 
sessed valuation."  Held,  that  the  limit  in  sec- 
tion 2873  applies  merely  to  the  purposes  provid- 
ed for  in  that  section. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  i  1826;  Dec.  Dig.  S 
863.*] 

Appeal  from  Circuit  Court,  Lenawee  Coun- 
ty, in  Chancery;  Harry  A.  Lockwood,  Judge. 

Suit  by  James  W.  Wlghtman  against  tbe 
Village  of  Tecumseb  and  others.  From  a 
decree  dismissing  tbe  bill,  complainant  ap- 
peals.   Affirmed. 

Complainant,  a  taxpayer  and  owner  of 
real  estate  in  the  defendant  village,  filed 
the  bill  of  complaint  In  this  case  to  enjoin 
tbe  village  and  the  other  defendants,  its  trus- 
tees, from  constructing  certain  sewers,  from 
Issuing  bonds  for  that  purpose,  and  from 
entering  Into  a  contract  for  their  construc- 
tion. The  case  was  heard  upon  pleadings 
and  proofs  taken  In  open  court,  and  decree 
entered  dismissing  the  bill.  The  proposi- 
tion to  raise  $29,000  by  tbe  Issue  of  bonds 
for  the  construction  of  tbe  sewers  was  sub- 
mitted to  tbe  vote  of  tbe  electors  of  tbe 
village.  All  the  proceedings  until  the  day 
of  election  were  regular  and  In  accordance 
with  tbe  statute.  The  following  form  of 
tbe  ballot  was  prescribed  by  the  council: 
"Shall  a  village  loan  of  twenty-nine  thou- 
sand dollars  for  sewer  purposes  be  authoriz- 
ed?" By  the  mistake  either  of  the  clerk  in 
copying  the  form  of  tne  ballots,  or  of  tbe 
printer  In  printing  them,  the  words  "for 
sewer  purposes"  were  omitted  from  the  bal- 
lots, so  that  they  read  "Shall  a  village  loau 
of  twenty-nine  thousand  dollars  be  autho- 
rized?" The  total  number  of  legal  votes 
cast  was  506.  Of  these,  364  were  for  the 
loan  and  142  against  It.  Fifty-five  votes 
were  rejected  as  Illegal  because  of  disting- 
uishing marks.  Of  these,  32  were  for  tbe 
loan,  and  23  against  it.  Ui>on  receiving  tbe 
return  of  tbe  election  the  council  determined 
that  the  proposition  was  carried  by  tbe 
requisite  two-thirds  vote,  and  were  making 
preparations  to  issue  the  bonds  and  make  a 
contract  when  this  bill  was  filed.  It  is  con- 
ceded that  the  following  notice  was  publish- 
ed for  two  weeks  preceding  tbe  election  In 
the  two  village  newspapers,  and  posted  in 
six  of  the  most  public  places  in  the  village: 

"Notice  Is  hereby  given  that  a  special 
village  election  will  be  held  at  the  council 
building  In  the  village  of  Tecumsdi  on  the 
23d  day  of  September,  A.  D.  1907,  the  polls 
being  open  at  7  o'clock  in  the  morning  of 
that  day,  or  as  soon  thereafter  as  may  be, 
and  kept  open  until  5  o'clock  In  tbe  after- 
noon, for  the  purpose  of  determining  wheth- 
er a  loan  of  twenty-nine  thousand  dollars 
on  the  faith  and  credit  of  said  village  for 


•Kor  oUier  Jssaa  (e«  same  topic  and  aectioo  NUUBEiR  la  Dec.  ft  Am.  Digs.  1907  to  data,  ft  Rsporter  Icdezti 


Digitized  by  LjOOQ  l€ 


MIrb.) 


WIGHTMAN  V.  VILLAGE  OP  TECUMSEH. 


123 


the  purpose  of  constructing  a  sanitary  sew- 
er system  therein,  shall  be  antborlzed,  in 
accordance  with  the  resolution  adopted  by 
the  village  council  of  said  village  at  an 
adjourned  meeting,  held  on  the  4th  day  of 
September,  A.  D.  1907,  of  which  the  follow- 
ing is  a  true  copy: 

"•Resolved,  That  the  proposition  to  raise 
the  sum  of  twenty-nine  thousand  dollars, 
\fj  loan  on  the  faith  and  credit  of  this  vil- 
lage, for  the  purpose  of  constructing  a  sani- 
tary sewer  system  In  said  village,  accord- 
ing to  the  plans  and  specifications  prepared 
by  Kiggs  &  Sherman,  and  now  on  file  in  the 
office  of  the  clerk  of  this  village,  be  and 
the  same  hereby  is  submitted  to  the  vote 
of  the  electors  of  this  village  at  a  special 
village  election  now  and  hereby  called  for 
that  purpose,  to  be  held  at  the  council  build- 
ing in  said  village  on  the  23d  day  of  Septem- 
l)er.  A.  D.  1907,  at  which  election  the  vote 
stiall  be  by  ballot,  the  contents  of  which 
shall  be  as  follows,  viz.: 

"The  ballot  for  those  voting  to  authorize 
said  loan  to  read  as  follows: 
Q  Shall  a  village  loan  of  twenty-nine  thou- 
and  dollars  for  sewer  purposes  be  authoriz- 
ed:   Yes. 

"The  ballot  for  those  voting  not  to  au- 
thorize said  loan  to  read  as  follows: 
n  Shall  a  village  loan  of  twenty-nine  thou- 
and  dollars  for  sewer  purposes  be  authoriz- 
ed:   No. 

"That  said  village  election  be  conducted 
to  every  respect  in  the  manner  provided  by 
law  for  special  elections,  and  that  the  vil- 
lage clerk  is  hereby  directed  to  give  notice 
of  said  election  by  having  a  copy  of  this 
resolution  published  in  each  the  Tecumseh 
Herald  and  the  Tecumseh  News  at  least 
twice  before  said  election,  and  by  posting 
notices  of  said  election,  containing  copies  of 
this  resolution,  in  six  of  the  most  public 
places  in  this  village  at  least  two  weeks 
betore  the  date  of  said  election." 

The  election  was  a  special  one,  and  no 
other  question  was  before  the  electors.  Te- 
cumseh is  a  village  of  about  2,500  inhabi- 
tants. The  election  was  once  postponed  by 
the  council  at  the  verbal  request  of  some 
of  the  electors  in  order  to  give  the  electors 
farther  time  for  discussion  and  considera- 
tion. It  was  also  shown  that  there  was  a 
very  fnll  discussion  of  the  proposed  loan 
preceding  the  election. 

Three  questions  are  presented:  (1)  Is  the. 
election  void  because  the  ballots  did  not 
state  the  purpose  for  which  the  indebtedness 
vras  to  be  incurred?  (2)  Did  the  proposition 
receive  the  necessary  two-thirds  vote  of  all 
electors  voting  at  said  election?  (3)  Did  the 
amoimt  proposed  to  be  raised  exceed  the 
amonnt  authorized  by  the  statute  to  be  rais- 
ed npon  the  assessed  valuation  of  the  vil- 
lage exclusive  of  the  taxes  of  the  same 
year? 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 


MONTGOMERY,  OSTRANDEB,  and  HOOK- 
ER, JJ. 

James  W.  Wightman  and  Wallace  Wester- 
man,  for  appellant  Frederick  B.  Wood 
and  Bird  &  Sampson,  for  appellees. 

GRANT,  J.  (after  stating  the  facts  as 
above).  1.  The  proceedings  of  the  council 
were  regular.  The  resolution  published  dis- 
tinctly stated'  the  proposition  upon  which 
the  voters  were  to  cast  their  ballots.  It  was 
a  special  electioir.  Mo  other  proposition  was 
before  the  voters.  It  had  been  fully  dis- 
cussed in  newspapers  and  by  citizens.  Every 
voter  who  went  to  the  polls  must  have  known 
that  the  sole  proposition  for  him  to  vote  up- 
on was  the  authorization  of  a  loan  of  $29,000 
for  sewer  purposes.  The  voters  did  not  see 
the  ballots  until  election  day  and  probably 
at  the  polling  places  when  they  went  to  vote. 
The  ballot  then  placed  in  their  hands  inform- 
ed them  that  in  accordance  with  the  resolu- 
tion of  the  common  council  they  were  to  vote 
for  a  loan  of  $29,000.  The  purpose  for  which 
that  loan  was  to  be  made  did  not  appear  np- 
on the  ballots.  It  cannot  be  conceived  that 
the  words  "for  sewer  purposes"  would  have 
given, the  voters  any  Information  other  than 
that  already  possessed  by  them  before  going 
to  the  polls.  That  provision  of  the  charter 
above  quoted,  requiring  the  ordinance  or  res- 
olution of  the  council  to  distinctly  state  the 
purpose  of  the  expenditure,  was  fully  com- 
piled with.  By  mistake  of  gome  one  the  ex- 
act form  of  the  ballot  was  not  followed. 
There  Is  no  possibility  or  claim  that  any 
voter  was  misled  or  prejudiced  by  the  mis- 
take. The  object  of  the  above  provision  of 
the  statute  is  to  notify  the  voters  of  the 
proi>ositlon  to  be  voted  upon  at  the  future  spe- 
cified time  so  that  they  may  have  ample  time 
for  consideration  and  discussion.  The  money 
to  be  received  from  the  loan  was  for  one  pur- 
pose only,  and  could  not  be  diverted  to  any 
other  purpose.  The  omission  of  the  words 
"for  sewer  purposes,"  from  the  ballot  must, 
under  the  circumstances,  be  held  not  to  have 
vitiated  the  election.  People  v.  Township 
Board  of  Woodhull,  14  Mich.  28,  is  not  in 
point  here.  The  circumstances  in  that  case 
are  entirely  different.  The  petition  was  held 
to  be  too  general.  It  did  not  enable  the  court 
by  a  statement  of  the  specified  purpose  for 
which  the  advances  were  made  to  Judge 
whether  they  came  within  the  provisions  of 
the  act.  This  disposed  of  the  case.  The 
court  used  the  following  language:  "The 
question  voted  upon  goes  back  over  the  whole 
time  from  the  beginning  of  the  war,  without 
any  of  the  restrictions  or  limitations  provid- 
ed in  the  act,  and  would  apply  as  well  to 
moneys  advanced  for  Iwunties  to  drafted 
men,  and  to  the  eases  prohibited  by  the  pro- 
viso, as  to  any  others.  It  would  cover  any 
incidental  expenses  in  going  to  the  provost 
marshal's  office  and  returning,  and  the  time 
spent  there  In  getting  the  rolls  corrected,  or 


Digitized  by  VjOOQ  l€ 


124 


122  NORTHWESTERN  REPORTER. 


(Mich. 


any  other  Incidental  expenses  as  to  bounties 
or  advances  for  bounties.  This  yote  affords, 
therefore,  no  evidence  what  the  vote  of  the 
electors  would  have  been  upon  the  question 
really  authorized  to  be  submitted."  In  the 
present  case  the  statute  of  the  state  has  been 
fully  complied  with  by  the  common  council, 
and  there  Is  no  room  for  any  uncertainty 
from  the  defect  in  the  ballot.  See  also  Thom- 
as V.  Kent  Circuit  Judge,  116  Mich.  106,  74 
N.  W.  881,  and  authorities  cited  in  Bauer  v. 
Township  Board  of  Denmark  (handed  down 
herewith)  122  N.  W.  121. 

2.  It  would  be  uimecessary  in  this  case  to 
decide  the  other  two  questions,  but  as  they 
may  again  arise,  and  are  fully  discussed,  we 
will  determine  them.  The  proposition  was 
carried  by  the  required  two-thirds  vote  of 
the  l^al  votes  cast  Complainant  does  not 
contend  that  the  66  votes  were  Improperly  re- 
jected, but  insists  that  the  legal  electors  voted 
these  ballots,  and  therefore  they  should  be 
counted  in  estimating  the  two-thirds  vote.  In 
other  words,  he  insists  that  these  votes  were 
valid  for  one  purpose,  but  void  for  all  oth- 
ers. The  position  is  untenable.  The  stat- 
ute makes  all  such  votes  void.  A.  void  vote  Is 
of  no  more  effect  than  no  vote.  The  case  is 
the  same  as  It  would  be  if  only  606  electors 
had  voted. 

8.  The  statute  contains  five  sections  provid- 
ing taxes  for  different  purposes,  and  prescrib- 
ing a  limit  of  taxation  in  each  case.  Comp. 
Laws,  U  2852-2857,' inclusive.  Section  2873 
reads  as  follows:  "Should  any  greater 
amount  be  required  In  any  year  for  the  pur- 
chase of  grounds  for  erecting  public  build- 
ings or  for  other  necessary  corporate  pur- 
poses than  can  be  raised  by  the  council  under 
the  foregoing  provisions  of  this  chapter,  such 
amount  may  be  raised  by  tax  or  loan,  or  part- 
ly by  tax  and  partly  by  loan.  If  authorized 
by  a  two-thirds  vote  of  the  electors  voting 
upon  the  question  at  any  annual  or  special 
village  election.  The  amount  that  may  be 
voted  or  raised  In  any  year,  under  the  provi- 
sions of  this  section,  shall  not  exceed  two 
per  cent,  of  the  assessed  valuation  of  the 
property  in  the  village  as  shown  by  the  last 
preceding  tax  roll  made  therein."  >Tbe  2 
per  cent  limit  in  this  section  applies  to  the 
purpose  provided  in  that  section.  That  lim- 
it had  not  been  reached.  The  2  per  cent  does 
not  include  all  the  taxes  mentioned  in  the 
other  sections. 

The  decree  is  affirmed. 


BUCKEYE  BREWING  CO.  v.  EYMEHl. 

(Supreme  Court  of  Mlchlgaa.     July  0,  1909.) 

1.  Saucb  (I  866*)— Actions  rox  Pbics— Is- 
sues AND  Paoor. 

In  an   action   for  the  price  of  beer  sold, 
where  the  plea  was  tbe  general  issue  with  no- 


tice of  a  special  defense  that  the  beei  was  de- 
fective, and  that  on  a  certain  date  after  its 
sale  plaintiff  agreed  with  defendant  to  deduct  so 
mach  per  barrel  from  future  pardiases  nntii 
the  price  of  the  defective  beer  was  paid,  de- 
fendant could  show  that  the  agreement  was 
made  at  a  later  dat^  than  that  alleged. 

[E^.  Note. — For  other  cases,  see  Sales,  Cent 
Dig.  S  1035 ;   Dec.  Dig.  {  855.*] 

2.  Tbial  ({  121*)— ABaxTifENT  or  CotmsEi.— 

MaTTEBS  or  COUKXNT. 

In  an  action  for  tbe  price  of  beer  sold,  the 
plea  was  the  general  issue  with  notice  of  a 
special  defense  that  the  beer  was  defective,  and 
that  in  April,  1803,  thereafter  plaintiff  agreed 
that  if  defendant  continued  buying  from  him, 
he  could  deduct  so  much  per  barrel  from  future 
purchases  until  the  price  of  the  defective  beer 
was  paid.  Defendant's  evidence  was  that  the 
agreement  was  made  in  December,  1893,  when 
there  was  due  for  defective  beer  more  than  was 
due  in  April.  Held  that,  under  Circuit  Court 
Rule  7,  subd.  "e,"  permitting  any  statement  of 
facts  In  a  notice  accompanying  the  plea  to  be 
treated  as  an  admission  by  defendant  which 
need  not  be  proved  by  plaintiff,  plaintiff,  being 
entitled  to  read  defendant's  notice  to  the  jury 
without  introducing  it  in  evidence,  could  com- 
ment thereon  to  show  the  variance  between  the 
dates  of  the  agreement  as  alleged  and  proved 
as  bearing  upon  the  credibility  of  defendant's 
testimony. 

[E^d.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  i  296;  Dec  Dig.  (  121.*] 

Error  to  Circuit  Court  Saginaw  County; 
William  G.  Gage,  Judge. 

Action  by  the  Buckeye  Brewing  Company 
against  Andrew  Eymer.  Judgment  for  de- 
fendant and  plaintiff  brings  error.  Revers- 
ed, and  new  trial  granted. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTQOMEBY,  McALVAY,  and  BROOKE, 
JJ. 

Miles  J.  Purcell  and  Henry  E.  Naegely, 
for  appellant    Beach,  O'Keefe  &  Rockwlth, 

for  appellee. 


BROOKE,  J.  This  action  was  brought  to 
recover  tbe  sum  of  $3,502.63  for  beer  sold  by 
the  plaintiff  to  the  defendant  Plaintiff  Is 
a  brewing  company  in  the  city  of  Toledo, 
and  the  defendant  has  been  a  Jobber  of  tbe 
plaintiff's  beer  in  the  city  of  Saginaw  for  up- 
wards of  25  years,  during  which  period  he 
has  handled  large  quantities  of  plaintiff's 
beer.  The  defendant  in  making  payments  on 
his  account  to  the  plaintiff  for  the  beer 
which  it  furnished  has  for  a  period  of  20 
years  past  paid  to  a  collector  or  agent  of  tbe 
plaintiff  who  called  on  the  defendant  for  tbe 
pui^ose  of  making  collections  at  tbe  city  of 
Saginaw.  At  the  times  plaintiff's  collector 
called,  and  when  payments  were  made  by  the 
defendant  the  collector  gave  the  defendant 
credit  upon  the  bill  which  he  presented,  and 
the  defendant  signed  his  name  to  the  state- 
ment These  statements  were  introduced  by 
the  plaintiff  and  covered  a  period  from  April 


•For  other  cases  n%  same  topic  and  ••ctloa  NUMBER  in  Deo.  *  Am.  Digs.  1907  to  date,  ft  Raporter  Indexes 


Digitized  by 


Google 


Mich.) 


BUCKBTE  BREWING  CO.  ▼.  EYMBE. 


125 


17,  1883.  down  to  July  6,  1907.    The  state- 
ment under  the  last  date  Is  as  follows: 

Balance     $3,127  44 

210  barrels 1,470  00 

CoTerine  ice  $    6  25 

Leakage.  2-2,  2-4 10  60 

Donation,  3-2   10  50 

Uennins.  2  notes  272  00 

Henning,  2  notes   312  50 

Cash     350  00 

Rebate.  207  barrels 414  00 

Fieicht    1  20 

Caah     28  49    1,405  44 

Balance    $3,192  00 

The  last  car  not  included.  A.  Eymer. 

The  transactions  between  the  parties  be- 
tween Jnly  6,  1907,  and  October  26,  1907, 
were  set  forth  in  Exhibit  B,  and  starting 
wltb  tbe  balance  shown  In  Exhibit  A.,  as 
abore  set  forth,  of  $3,192,  and  debiting  the 
account  with  the  shipments  and  giving  cred- 
it for  the  payments,  a  net  balance  was  reach- 
ed of  $3,502.63,  for  the  recovery  of  which 
this  salt  was  broaght. 

The  defendant  pleaded  the  general  Issue, 
and  thereunder  gave  notice  of  a  special  de- 
tense,  which  was,  in  effect  that  daring  the 
years  1891,  92,  and  93,  the  beer  he  had  re- 
ceived was  damaged,  spoUed,  and  of  Inferior 
qoality;  that  on  the  11th  day  of  April  of 
that  year  he  would  have  owed  the  defendant 
the  sum  of  $3,200  if  the  beer  furnished  had 
been  of  good  quality ;  that  be  refused  to  pay 
the  plaintiff  the  amount  of  money  claimed 
to  be  due  for  tbe  rea^n  that  the  beer  was 
damaged,  etc.;  that  he  had  informed  plain- 
tiff that  he  would  not  continue  to  handle  its 
beer  in  the  city  of  Saginaw  longer ;  that  the 
plaintiff  Insisted  on  defendant  handling  its 
product;  that  it  wonld  cancel  the  claim  of 
indebtedness  of  $3,200  claimed  to  be  owing 
said  plaintiff  by  defendant  in  the  following 
manner:  The  said  defendant  was  to  con- 
tinue purchasing  beer  from  said  plaintiff, 
and  plaintiff  was  to  deduct  the  sum  of  25 
cents  a  barrel  for  each  and  every  barrel  of 
beer  purcbased  by  said  defendant,  to  wit, 
after  the  Ilth  day  of  April,  1893,  and,  when 
said  defendant  had  purchased  a  sufHcIent 
number  of  barrels  of  beer  so  that  tbe  total 
amonnt  equaled  $3,200,  giving  a  credit  of  25 
cents  on  each  barrel  of  beer  purchased,  then 
tbe  plaintiff  was  to  cancel  its  claim  of  indebt- 
edness of  $3,200.  Further,  that  it  was  agreed 
between  the  plaintiff  and  defendant  that  the 
sum  of  $3,200  would  be  carried  on  the  plaln- 
titTs  books  as  a  charge  against  tbe  defend- 
ant, and  that  he  sbonld  sign  settlement 
sheets  Showing  the  amount  of  the  claim  of 
indebtedness,  and  that  said  defendant  did 
sign  settlement  sheets,  which  said  plaintiff 
now  has  in  Its  possession  under  and  by  tbe 
agreement  which  said  plaintiff  and  defend- 
ant had  as  aforesaid.  Further,  that  said  de- 
fendant since  April  11,  1893,  up  to  October 
28,  1907,  purchased  from  said  plaintiff  18,- 
062^  barrels  of  beer,  and  by  the  terms  of  the 
agreement  made  and  entered  Into  between 
said  plaintiff  and  defendant  defendant  is  en- 


titled to  have  a  reduction  of  25  cents  on  each 
and  every  barrel  of  beer  purchased  by  him, 
and  have  said  claim  of  indebtedness  of  $3,- 
200  canceled,  as  the  same  has  all  been  paid  as 
aforesaid.  Testimony  offered  on  behalf  of 
the  defendant  tended  to  show  that  the  al- 
leged agreement  in  -reference  to  the  rebate 
was  made  In  December,  1893,  Instead  of  April 
of  that  year.  In  the  closing  argument  of  the 
attorney  for  the  plaintiff,  he  read  from  the 
defendant's  notice  attached  to  the  plea  as 
follows:  "  "That  said  defendant  was  to  con- . 
tlnue  purchasing  beer  from  said  plaintiff, 
and  was  to  deduct  the  sum  of  25  cents  a  bar- 
rel for  each  and  every  barrel  of  beer  pur- 
chased by  said  defendant,  to  wit,  after  the 
11th  day  of  April,  1893,  and  when  said  de- 
fendant had  purchased  a  sufficient  number 
of  barrels  of  beer  so  that  the  total  amount 
equaled  $3,200.00,  giving  a  credit  of  25  cents 
on  each  barrel  of  beer  purchased,  then  the 
plaintiff  was  to  cancel  its  claim  of  indebted- 
ness of  $3,200,'  and  then  further  argued  to 
the  Jury  that  his  claim  now  was  that  the 
contract  was  made  In  December,  1893;  that 
in  April,  1893,  there  were  only  $3,000  due 
the  plaintiff;  and  that  he  had  changed  his 
testimony  because  in  December,  1893,  it  was 
$3,200."  Upon  this  point  the  learned  circuit 
judge  Instructed  the  Jury  as  follows:  "I  in- 
struct you,  gentlemen,  that  In  this  case  the 
pleadings  not  having  been  Introduced  in  evi- 
dence, you  are  not  to  consider  them  at  all. 
They  must  be  Introduced  in  evidence  in  order 
to  be  binding ;  that  is,  for  the  purpose  of  en- 
abling the  opposite  party  an  opportunity  to 
furnish  any  explanation  he  may  desire,  ei- 
ther by  evidence  or  argument  of  his  counsel, 
In  order  to  make  the  matter  admissible  for 
your  consideration,  and  you  will,  therefore, 
not  take  Into  consideration  any  statements 
that  have  been  made  here  In  reference  to  the 
inconsistency  of  the  pleadings,  and  the  de- 
fense of  counsel."  In  this  ruling  we  think 
the  learned  circuit  Judge  was  In  error.  Cir- 
cuit Court  Rule  7,  subd.  "e,"  is  as  follows: 
"Any  statement  of  facts  set  forth  in  a  notice 
added  to  a  plea  shall  be  treated  as  an  ad- 
mission by  the  defendant  and  need  not  be 
proved  by  the  plaintiff."  It  is  doubtless  true, 
as  argued  by  defendant's  counsel,  that  under 
the  plea  defendant  could  show  the  making 
of  the  alleged  contract  at  a  date  later  than 
that  stated  in  the  notice.  But  the  fact  of 
tbe  variance  between  the  testimony  and  the 
statement  in  the  plea  as  to  the  date  was  a 
matter  of  proper  comment  by  plaintiff's  coun- 
sel, and  one  which  might  very  well  be  con- 
sidered by  the  Jury  in  passing  upon  the  cred- 
ibility of  the  defendant. 

Error  is  assigned  because  of  the  exclusion 
of  a  press  copy  of  a  letter  claimed  to  have 
been  sent  by  plaintiff  to  defendant's  agent 
Beat.  Under  the  evidence  as  disclosed  by  tbe 
record,  we  are  of  opinion  that  the  court  prop- 
erly excluded  the  letter.  See  Lowry  v.  Sagi- 
naw Specialty  Co.,  128  Mich.  246,  87  N.  W. 
194. 


Digitized  by  LjOOQIC 


126 


]22  NORTHWESTERN  REPORTER. 


(Mich. 


The  otber  errors  asBighed  need  not  be  no- 
ticed, as  tbey  are  not  likdy  to  arise  on  an- 
other trial. 

For  tlie  error  pointed  out,  the  Judgment 
will  be  reversed,  and  a  new  trial  granted. 


DUNKLEY  T.  McCarthy  (CITY  OF  MAR- 
QUETTE, Garnishee). 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

1.  Appbai.  and  Bbbob  ((  711*)  —  Record  — 
Questions  Presented— Questions  in  In- 
teruediate  coubt. 

Where,  so  far  as  the  record  on  appeal  from 
the  circuit  court  discloses,  garnishment  pro- 
ceedings in  justice  court  appear  to  be  regular 
and  in  accordance  with  Comp.  Laws  1897,  i 
1017,  and  an  affidavit  of  a  claimant  to  the  fund 
paid  into  court  by  the  garnishee,  on  which  the 
claimant  based  her  special  appeal  to  the  cir- 
cuit court,  is  not  included  in  such  record,  the 
Supreme  Court  is  not  able  to  determine  wheth- 
er an  assignment  of  error  to  a  finding  that 
the  validity  of  the  Judgment  in  justice  court 
against  the  claimant  could  not  be  raised  on 
her  special  appeal,  but  should  have  been  raised 
by  certiorari,  is  well  grounded. 

[Ed.  Note.— For  otber  cases,  see  Appeal  and 
Error,  Dec.  Dig.  {  711.*] 

2.  Assignments  ({  15*)— Vauditt  or  As- 
signuent  Of  Future  Salabt  of  Citt  Of- 
fices. 

An  assignment  of  a  city  officer's  salary  to 
be  earned  after  the  assignment  is  void  as 
against   public  policy. 

[Ed.  Note.— For  other  cases,  see  Assignments, 
Cent.  Dig.  {  23;   Dec.  Dig.  {  15.*] 

3.  Gabnishkent  (I  17*)  —  Pboceedinos 
Against  Municipai,itt--Oftioeb8  ob  Em- 
ployes Subject  Thebeto. 

Laws  1849,  p.  157.  No.  137,  {  25,  as  amend- 
ed by  Pub.  Acts  1899,  p.  414,  No.  257,  pro- 
viding that  "all  corporations  of  whatsoever 
nature,  whether  foreign,  domestic,  municipal  or 
otherwise,  except  counties,  may  be  proceeded 
against  as  garnishees  in  the  same  manner  and 
with  like  effect  as  individuals  under  the  provi- 
sions of  this  act,"  etc.,  authorizes  garnishee  pro- 
ceeding against  municipal  corporations  where 
the  principal  defendant  is  an  officer  or  employ^ 
of  the  municipality. 

[Ed.  Note. — For  other  cases,  see  Garnishment, 
Cent  Dig.  §§  32-34,  44 ;  Dec.  Dig.  {  17.*] 

4.  OABNISHUENT  (§  17*)— POWEB  OF  LBGISI.A- 

TUBE  to  Authorize  Pbocebdings  Against 

Municipal  Cobpobations. 

Laws  1849,  p.  157,  No.  137,  §  25,  as  amend- 
ed by  Pub.  Acto  1800,  p.  414,  No.  267,  author- 
ising garnishee  proceedings  against  municipal 
corporations  where  the  principal  defendant  is 
an  officer  or  employ^  of  the  municipality,  is 
within  the  legislative  power. 

[Ed.  Note.-^For  other  cases,  see  Garnishment, 
Dec.  Dig.  f  17.*] 

Affirmed  by  an  equally  divided  court. 

Error  to  Circuit  Court,  Marquette  Coun- 
ty; John  W.  Stone,  Judge. 

Action  by  Joseph  Dunkley  against  Shields 
McCarthy  In  Justice  court.  Plaintiff  recover- 
ed a  Judgment,  and  garnished  the  City  of 
Marquette,  which  paid  an  admitted  indebted- 
ness to  defendant  into  court,  and  from  a 
Judgment  adverse  to  the  claim  of  Elizabeth 
Kitts  to  the  fund  she  appealed  to  the  circuit 


court  The  Judgment  of  the  Justice  court 
was  affirmed,  and  the  claimant  brings  error. 
Affirmed. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMBUY,  OSTRANDER,  HOOKEK, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

J.  L.  Heffernan,  for  appellant  W.  S.  Hill, 
for  appellee. 

BROOKE,  J.  This  Is  an  action  of  assamp- 
slt  brought  by  the  plaintiff  against  the  de- 
fendant McCarthy  before  a  Justice  of  the 
peace  of  Marquette  county.  The  declaration 
was  on  the  common  counts,  and  Judgment 
was  rendered  by  said  Justice  in  favor  of 
said  plaintiff  and  against  said  defendant. 
Shields  McCarthy,  for  the  sum  of  ?89.S."> 
damages  and  $3  costs,  on  February  26,  190S. 
On  the  29th  of  February  a  summons  in  garn- 
ishment was  issued  to  the  city  of  Marquette, 
and  duly  served.  On  the  4th  of  March,  1908, 
the  said  garnishee  defendant  filed  with  said 
Justice  its  written  disclosure  setting  forth 
that  It  was  indebted  to  said  Shields  McCar- 
thy, principal  defendant,  for  services  as  city 
comptroller  in  the  sum  of  $125  over  and 
above  all  legal  set-offs,  and  that  said  in- 
debtedness was  for  the  salary  of  said  comp- 
troller of  said  city  for  the  month  of  Febru- 
ary. '  The  disclosure  also  made  note  of  the 
claim  of  Elizabeth  Kltts  as  assh-nee  under  a 
written  assignment  and  the  sum  of  $125  was 
paid  Into  the  hands  of  the  justice.  Thereup- 
on the  said  Elizabeth  kltts  was  served  with 
notice  and  with  a  copy  of  the  disclosure,  cit- 
ing said  claimant  to  appear  before  said  Jus- 
tice at  his  office  In  the  city  of  Marquette  on 
the  2oth  of  March,  1908.  On  March  27,  1908. 
the  parties  appeared  before  said  Justice. 
Plaintiff  declared  on  the  common  counts 
In  assumpsit  and  specially  on  the  judgment 
hereinbefore  mentioned,  <;laiming  damages 
$300,  etc.  Defendant  pleaded  the  genera] 
issue.  Plaintiff  introduced  In  evidence  the 
original  judgment  in  the  principal  cause  and 
the  disclosure  of  the  garnishee  defendant, 
and  all  documents  pertaining  to  the  gar- 
nishee proceedings,  and  It  was  conceded  by 
claimant  that  the  fund  In  court  was  for  sal- 
ary earned  by  the  principal  defendant  as  a 
public  officer  after  the  execution  of  the  as- 
signment to  the  claimant  The  defendant 
offered  no  testimony.  The  trial  of  the  Is- 
sues was  had  by  a  Jury,  which  rendered  a 
verdict  in  favor  of  plaintiff  and  against 
claimant  Kltts  for  $89.85  damages  and  $13 
costs.  Claimant  thereupon  appealed  to  the 
circuit  court  for  the  county  of  Marquette  by 
general  and  special  appeal.  The  circuit 
court  affirmed  the  judgment  of  the  Justice 
court  finding  that  said  claimant  is  not  en- 
titled to  said  fund  or  any  part  thereof,  and 
that  the  same  belongs  to  the  said  plaintiff 
in  said  garnishee  proceedings  to  the  sum  of 
$94.15,  allowing  costs  against  said  claimant 


•For  other  cues  see  samo  topic  and  stctlon  NUMBER  in  Dec.  *  Am.  Ols*.  U07  to  dat«,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


MldL) 


DUNKLEY  ?.  MCCARTHY. 


127 


and  ber  surety,  John  R.  Oordon,  to  be  taxed, 
Inclndlng  an  attorney  fee  of  $12JS0.  Xbere- 
apon  tbe  case  was  brongbt  to  tbl^  court  for 
review,  five  asalgnments  of  error  are  urged 
on  beba]f  of  claimant. 

1.  Tbe  court  erred  In  finding  tbat  tbe  va- 
lidity of  tbe  judgment  In  Justice  court 
against  tbe  claimant  cannot  be  raised  on 
special  appeal,  but  Bbould  bare  been  raised 
by  certiorari  So  far  as  tbe  record  discloses, 
tbe  proceedings  in  tbe  justice  court  appear 
to  bave  been  regular,  and  in  accordance  witb 
section  1017  of  tbe  Compiled  Laws  of 
1897.  Tbe  affidavit  of  tbe  claimant  upon 
wbicb  sbe  based  ber  special  appeal  is  not  in- 
dnded  In  tbe  record,  and  the  court  Is  tbere- 
fore  unable  to  determine  wbether  or  not  this 
assignment  Is  well  grounded. 

2.  The  second  assignment  of  error  is  tbat 
the  court  erred  In  holding  that  the  assign- 
ment of  tbe  said  Shields  McCarthy  to  said 
claimant  was  void  as  against  public  policy 
upon  the  authority  of  Granger  v.  French  et 
al,  152  Mich.  356,  116  N.  W.  181.  We  think 
tbe  learned  circuit  judge  was  justified  in  bis 
ruling  as  to  the  assignment.  The  case  of 
Granger  v.  French,  supra,  received  careful 
attention  by  this  court  and  may  be  deemed 
to  express  tbe  settled  policy  of  tbe  law  touch- 
ing tbe  subject-matter  there  under  considera- 
tion. 

3.  Tbe  third  assignment  of  error  is  that 
tbe  court  erred  In  holding  that  the  claimant 
Is  not  entitled  to  said  fund,  or  any  part 
thereof,  and  tbat  the  same  belongs  to  said 
plaintiff  under  said  garnishee  proceedings 
to  the  amount  of  |94.1o,  being  the  amount  of 
said  damages,  costs,  and  interest.  This  as- 
signment of  error  demands  a  consideration 
of  Act  No.  257,  p.  414,  Pub.  Acts  1899, 
wblch  is  an  act  to  amend  section  25,  Act 
No.  137,  p.  157  of  Laws  1849,  as  amended, 
relative  to  authorizing  proceedings  against 
garnishees,  etc.  Section  23,  as  amended, 
reads  in  part  as  follows:  "All  corporations 
of  whatsoever  nature,  whether  foreign,  do- 
mestic, municipal  or  otherwise,  except  coun- 
ties, may  be  proceeded  against  as  garnishees 
in  the  same  manner  and  witb  like  effect 
as  individuals  under  tbe  provisions  of  this 
act  and  the  rules  of  law  regulating  proceed- 
ings against  coi-poratlons  and  the  summons 
against  tbe  garnishees  In  such  case  may  be 
served  on  the  president  cashier,  secretary, 
treasurer,  comptroller  or  other  principal 
office  of  such  corporation,"  etc.  The  ques- 
tion Is  whether  It  was  tbe  legislative  intent 
to  authorize  garnishee  proceedings  against 
municipal  corporations  where  tbe  principal 
defendant  was  an  officer  or  employ^  of 
such  monidpality.  It  Is  true  tbat  the  stat- 
ute does  not  by  name  make  the  officers  and 
employes  of  municipal  corporations  subject 
to  the  operation  of  garnishment  proceedings 
Bgainst  tbe  municipality,  but  it  is  likewise 
true  that   tbey   are   not  excepted   by  tbe 


terms  of  the  act  We  are  of  opinion,  after 
careful  consideration,  tbat  It  was  tbe  legis- 
lative Intent  to  provide  for  garnishment  pro- 
ceedings against  municipal  corporations  by 
this  legislation,  not  alone  where  tbe  princi- 
pal defendant  was  one  sustaining  simply  a 
commercial  or  contractual  relation  with  the 
municipality,  but  likewise  to  Its  officers 
and  employes  as  such.  As  determined  in 
the  case  of  Granger  v.  French,  supra,  an 
officer  or  employ^  of  a  municipal  corpora- 
tion may  not  assign  by  anticipation  tbe 
salary  and  fees  paid  to  him  for  tbe  purpose 
of  maintaining  tbe  dignity  of  bis  office  and 
securing  tbe  due  discbarge  of  bis  duties. 
We  think,  however,  that  the  voluntary  act 
of  such  officer  or  employe  In  so  depriving 
himself  In  advance  of  tbe  emoluments  of 
bis  office  stands  upon  an  entirely  different 
footing  from  the  taking  of  such  emoluments 
after  they  have  accrued  by  garnishment 
proceedings  under  the  legislation  above  no- 
ticed. But  we  are  not  concerned  vrtth  the 
wisdom  of  the  legislation.  Tbe  act  under 
consideration  was  clearly  within  the  legis- 
lative power,  and  we  think  its  Intent  is 
clear. 

Tbe  other  assignments  need  not  be  dis- 
cussed. 

Judgment  is  affirmed. 

GRANT,  HOOKER,  and  MOORE,  JJ., 
concurred  witb  BROOKE,  J. 

OSTRANDER,  J.  Comp.  Laws.  {  1014, 
was  amended  by  Act  No.  237,  p.  414,  Pub. 
Laws  1899,  and  again  amended  by  Act  No.  73, 
p.  97,  Pub.  Acts  1903.  It  provides  tbat  "all 
corporations  of  whatsoever  nature,  whether 
foreign,  domestic,  municipal  or  otherwise,  ex- 
cept counties,  may  be  proceeded  against  as 
garnishees  in  tbe  same  manner  and  witb  like 
effect  as  individuals  under  the  provisions  of 
this  act,  and  tbe  rules  of  law  regulating  pro- 
ceedings against  corporations,"  etc.  In  view 
of  tbe  settled  and  general  rule  of  public  pol- 
icy applied  by  this  court  In  Granger  v.  French, 
152  Mich.  336,  116  N.  W.  181,  and  in  view 
also  of  tbe  language  of  tbe  statute  in  wbicb 
all  corporations,  domestic  as  well  as  munic- 
ipal, except  counties,  are  placed  upon  the 
same  footing  with  respect  to  their  liability 
as  garnishee  defendants,  I  think  the  stat- 
ute should  be  construed  as  making  munic- 
ipal corporations  liable  as  garnishee  de- 
fendants in  those  cases  only  where  the  prin- 
cipal debtor  Is  an  employe  of  the  municipal- 
ity, or  is  one  to  whom  tbe  municipality  is 
indebted  otherwise  than  for  an  official  sal- 
ary. 

The  Judgment  should  be  reversed,  and  no 
new  trial  granted. 

BLAIR,  C.  J.,  and  MONTGOMERY  and 
McALVAY,  JJ.,  concurred  with  OSTRAN- 
D£R,  J. 


Digitized  by  LjOOQIC 


128 


122  NORTHWESTERN  REPORTER. 


(MidL 


GOOEBIO  LUMBER  CO.  t.  MOORE  et  al. 
(Supreme  CSourt  of  Michigan.     Joly  6,   1009.) 

1.  Taxation  (f  704*)— Tax  Saixs— Nouck  to 
Redeem— FoBM. 

Where  a  notice  to  redeem  from  tax  sales 
contained  two  descriptions,  and  in  the  last  col- 
umn, opposite  both  descriptions,  under  the  head- 
ing "Tax  for  Years,"  contained  the  figures 
1^8,  1890,  1000,  1901,  and  1902,  it  was  not 
defective  for  failure  to  indicate  to  which  de- 
scription such  years  applied,  but  would  be  held 
to  refer  to  all  tliat  appeared  in  the  preceding 
columns,  and  to  mean  that  the  amount  paid 
was  paid  as  to  each  of  the  descriptions  for  the 
taxes  named  in  the  years  enumerated. 

[Ed.  Note.— For  other  caaea,  see  Taxation, 
Dec.  Dig.  I  704.»] 

2.  Taxation  (f  707*)  —  Tax  Sal*  —  Redeup- 
yiON  —  Notice— Retubn  of  Skbtice  — Evi- 
dence—Concxdsiveness. 

A  sheriff's  return  of  service  of  a  notice  to 
redeem  land  from  tax  sale  is  evidence  of  the 
fact  of  service,  though  it  may  be  defeated  by 
proof  that  service  was  not  made  as  alleged. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Dec.  Dig.  S  707.*] 

8.  Taxation  (J  707*)- Notice  to  Rkdeboc— 

Retckn. 

A  statement  in  a  sheriff's  return  that  he 
served  a  notice  on  M.  "of  the  city  of  Mar- 
quette, Marquette  countv,  Mich.,"  justified  an 
inference  that  M.  resided  in  Marquette  county. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Dec.  Dig.  i  707.*] 

4.  Taxation  (I  707*)— Redemption  Notiob— 

Service  bt  MaiI/— Return. 

A  sheriff's  return  that  he  served  a  redemp- 
tion notice  on  E.,  secretary  of  the  0.  land 
company,  b^  depositing  in  the  post  office  at  B., 
for  transmission  through  the  United  States 
mail,  one  registered  letter,  containing  a  true 
copy  of  the  notice,  addressed  to  E.,  secretary  of 
the  O.  land  company,  "Mil.,  Wis.,"  sufficiently 
•  indicated  that  the  abbreviations  quoted  stood 
for  MUwankee,  Wis. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Dec  Dig.  I  707.*] 

6.  Taxation  (8  705*)— Redemption  Notice— 
Service. 

Where  it  appeared  from  an  affidavit  of 
Harry  R.  Edwards  of  Cleveland,  Ohio,  that 
Harry  R.  Edwards  was  the  same  person  to 
whom  land  in  controversy  was  conveyed  by 
deed  to  "Harry  P.  Edwards,"  a  tax  redemption 
notice,  served  oy  registered  letter,  addressed  to 
Harry  P.  EJdwards,  shown  by  the  registry  re- 
ceipt to  have  been  received  by  H.  P.  Edwards, 
per  H.  R.  Edwards,  was  shown  to  have  been 
addressed  to  the  proper  party,  whose  name  ap- 

g eared  as  the  record  owner,  and  was  received 
r  the  person  whose  real  name  was  misnamed 
of  reconi. 

[EM.  Note.— For  other  cases,  see  Taxation, 
Dec.  Dig.  S  705.*] 

Appeal  from  Circuit  Court,  Gogebic  Coun- 
ty, in  Chancery;   Samuel  S.  Cooper,  Judge. 

Bill  by  the  Gogebic  Lumber  Company 
against  George  E.  Moore  and  others.  Judg- 
ment for  defendants,  and  complainant  ap- 
peals.    Affirmed. 

Argued  before  GRANT,  MONTGOMEaiY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Ball  &  Stone,  for  appellant.  Charles  M. 
Humphrey,  for  defendant  George  E.  Moore. 


MONTGOMERY,  J.  This  Is  a  bill  filed  to 
quiet  tlUe  to  the  S  W.  %  of  the  N.  E.  %  of 
section  S,  town  46  N.,  range  43  W.,  Gogebic 
county,  and  to  redeem  from  certain  taxes. 
The  complainant  claims  to  be  the  owner  of 
the  land  by  chain  of  title  from  the  United 
States,  and  the  defendant  George  E.  Moore 
claims  to  be  the  owner  by  virtue  of  certain 
tax  deeds  upon  a  sale  made  by  the  Auditor 
General  for  taxes  of  1808,  1899,  1900,  1901, 
and  1902.  The  case  turns  upon  the  sufficien- 
cy of  notice  to  redeem,  given  by  the  tax  ti- 
tle purchaser  to  the  original  owners  of  rec- 
ord, and  the  sufficiency  of  notice  resolves  It- 
self into  two  questions:  First,  as  to  tbe 
sufficiency  in  form;  and,  second,  as  to  tbe 
proper  service.  Notice  was  served  upon  a 
number  of  parties,  and  Is  apparently  con- 
ceded to  be  sufficient  In  form,  provided  that 
the  description  of  the  land  and  the  designa- 
tion of  the  years  for  which  the  taxes  were 
spread  are  sufficiently  given. 

In  one  instance  the  form  of  tbe  notice  as 
regards  the  statement  of  the  years  for  which 
the  taxes  were  spread  Is  as  follows: 


Description  of  Land 

Sltoated  In  GoKeblc  County, 

SUte  of  Ulchigan. 


Amount 
Paid. 


&  W.  WotK.  E.M- 


h 


46 


r 


Tax  for 
Yean. 


1888,  1899, 
1»U0,  1001, 
and  1808. 


And  in  another  instance  the'  description 
was  as  follows: 


Description  ol  Land. 


put,  Addition, 

or  other  Description. 

Giving  name  of  City 

or  V  lllage,  wben 

necessary. 


M.  B.  }<ofN.  W.  M 

&  W.  X  of  N.  E.  M 

All  In  Gogebic  Coun- 
ty, Ulchlgan. 


i 

a 
it,,- 

&. 

Amount 

^■^ 

et 

Paid. 

1 

i 

& 

8 

t 

40 

a 

23 

42 

t 

M 

41 

2S 

48 

Tax  for 
Yean 


1808, 

18«S,  iwn, 
leui,  and 
1902. 


It  Is  claimed  that  tbese  notices  do  not  in- 
dicate that  the  statement  In  the  last  clause 
applies  to  the  description  of  land  given,  and 
particularly  that  it  applies  to  one  rather 
than  the  other.  We  think  this  is  altogether 
too  technical  a  construction  to  place  upon 
the  notice.  The  numerals  referring  to  the 
year  refer  to  the  beading  under  which  they 
appear,  and,  thus  construed,  apply  to  all  that 
appears  in  the  preceding  columns,  and  must 
mean  that,  as  to  each  of  the  descriptions 
mentioned  In  the  preceding  columns,  the 
amount  paid  was  paid  for  the  taxes  named 


•ror  other  cases  sm  same  topio  and  teetlbn  NUMBER  in  Dec.  &  Am.  Dlga,  ISOT  to  data,  4  Raportar  Indazas 


Digitized  by 


Google 


Mich.) 


GOOEBIG  LUMBER  CO.  v.  MOORE. 


129 


in  the  yean  ennmerated  In  the  last  column. 

As  to  serrlce,  the  evidence  of  this  was  af- 
forded by  the  return  of  the  sheriff,  accom- 
panied by  receipts  of  registered  letters  filed 
with  the  register  of  the  court.  The  conten- 
tion Is  made  that  under  the  rule  laid  down 
In  Winters  ▼.  Cook,  140  Mich.  483,  103  N.  W. 
860,  and  In  Williams  v.  Olson,  141  Mich.  690, 
1<M  N.  W.  1101,  the  return  of  the  sheriff  Is 
not  to  be  treated  as  evidence  of  the  fact  of 
service.  This  is  a  misconstruction  of  what 
Is  decided  in  these  cases.  In  Winters  v. 
Cook  the  question  was  whether  the  return 
of  the  sheriff  could  be  attacked  collaterally 
by  evidence  showing  that  the  purchaser  of 
the  tax  title  interest  bad  not  acted  in  good 
fkith  la  securing  a  substituted  service  in  a 
locality  other  than  tbat  of  the  residence  of 
the  party.  The  qnestlon  involved  in  Wil- 
liams T.  Olson  was  not  dissimilar.  It  Is 
true  it  was  there  said  that,  upon  tbe  applica- 
tion for  a  writ  of  assistance,  the  fact  of  prop- 
er service  Is,  notwithstanding  the  return, 
matter  to  be  proven;  tbe  actual  filing  of  the 
return,  fixing  the  date  from  tbe  period  of 
limitation,  must  be  reckoned.  It  was  not 
Intended  by  this  language  to  hold  tbat  tbe 
purchaser  might  not  comply  with  this  re- 
qnlrement  by  showing  tbe  return  of  tbe 
service  which  tbe  statute  provides.  The 
statute  Is  distinct  in  its  requirements  that 
there  shall  be  a  service  made  in  a  certain 
form,  and  by  an  officer  of  the  court.  It 
would  be  anomalous  to  hold  that  the  return 
of  such  service  is  not  evidence  of  tbe  fact  of 
service,  whatever  may  be  said  of  its  force 
as  evidence  of  tbe  fact  of  residence.  Un- 
questionably it  may  be  shown,  to  defeat  the 
force  of  tbe  return  of  tbe  sheriff,  tbat  serv- 
ice was  not  made  in  a  manner  which  the 
facts  Justified,  and  In  a  proper  case  the  re- 
turn itself  might  be  attacked  as  to  its  truth- 
fulness. But  vee  bold  that  It  is  prima  facie 
evidence  of  the  fact  of  service.  Service  was 
made  upon  one  Michael  Mullally,  and  the  re- 
turn of  service  made  by  the  sheriff  states 
tbat  on  tbe  31st  of  August,  1003,  be  served 
notice  on  Michael  Mullally  of  tbe  city  of 
Marquette,  Marquette  county,  Mich.,  by  per- 
sonally delivering  such  notice  to  him  as 
aforesaid.  The  query  is  propounded  in  the 
brief  of  complainant's  coimsel  as  to  whether 
this  may  be  taken  as  a  statement  tbat  Mi- 
chael Mullally  resides  in  tbe  county  of  Mar- 
quette It  seems  to  us  that  no  other  infer- 
ence could  be  drawn  from  the  language. 
But  further  than  this,  lb  the  plaintiffs  chain 
of  title  Introduced  by  himself,  Michael  Mul- 
lally is  described  as  being  of  the  city  of  Mar- 
quette and  tbe  county  of  Marquette,  so  that 
there  can  be  no  doubt  of  that  being  in  fact 
his  residence. 

A  good  deal  of  criticism  is  made  of  tbe 
service  made  on  tbe  Oazenovia  Land  Com- 
pany. The  evidence  shows  tbat  tbe  Caze- 
novla  Land  Company  was  a  company  doing 
business  in  Milwaukee,  Wis.    This  was  de- 

122N.W,-9 


scribed  in  deeds  Introduced  by  complainant 
Itself.  Tbe  return  of  tbe  sheriff  is  tbat  be 
served  tbe  notice  on  "Louis  Ellis,  Secretary 
of  tbe  Cazenovla  Land  Company,"  by  de- 
positing in  tbe  post  office  at  tbe  city  of  Bes- 
semer, for  transmission  through  tbe  United 
States  mail,  one  registered  letter,  containing 
a  true  copy  of  said  notice,  addressed  to 
"  'Louis  Ellis,  Secretary  of  the  Cazenovla 
Land  Company,  Mil.,  Wis.,'  a  receipt  for 
which  said  registered  letter,  signed  by  tbe 
said  above-named  person  as  secretary,  Is 
hereto  annexed,  and  forms  a  part  of  this  re- 
turn." There  is  appended  to  Ibis  a  receipt  of 
the  postmaster  at  Bessemer  j^4be  letter  ad- 
dressed to  "Louis  ESllls,  Secty.,  Milwaukee, 
Wis.,"  and  there  Is  a  receipt  for  the  letter, 
described  as  a  letter  of  tbe  same  number, 
"No.  262,  from  Bessemer,  Mich.,  addressed 
to  Louis  Ellis,  Sec.  Cazenovla  Land  Co.," 
and  receipted  for  by  "Louis  AUis,  Secty.," 
A.  H.  Green,  addressee's  agent.  It  is  ad- 
mitted that  Louis  AlUs  is  the  secretary  of 
the  Cazenovla  Land  Company.  Tbe  tech- 
nical point  Is  made  that  tbe  return  docs  not 
show  that  this  letter  was  addressed  to  Mil- 
waukee, Wis.,  but  to  Mil.,  Wis.  Tbe  return, 
however,  refers  to  tbe  receipts  appended, 
and,  read  In  connection  with  them,  leaves  no 
doubt  tbat  "Mil."  as  used  is  an  abbreviation 
of  Milwaukee,  Wis.,  and  it  cannot  be  assum- 
ed, either,  that  tbe  letter  was  received  by 
any  one  other  than  the  party  to  whom  It  was 
addressed.  It  appeared  upon  the  receipt  it- 
self that,  when  delivery  Is  made  to  the  agent 
of  the  addressee,  both  addressee's  name  and 
tbe  agent's  must  appear,  and  tbat  a  regis- 
tered article  must  not  be  delivered  to  any 
one  but  the  addressee,  except  upon  the  ad- 
dressee's written  order,  so  that,  according 
to  tbe  rules  of  tbe  post  office  department, 
as  indicated  by  tbe  memorandum  upon  this 
receipt,  this  letter  must  have  reached  its  des- 
tination, and  have  found  Its  way  Into  tbe 
bands  of  Louis  Allis,  secretary  of  tbe  Caze- 
novla Land  Company. 

Another  letter  was  addressed  to  Harry  P. 
Edwards,  of  Cleveland,  Ohio.  The  record  in 
the  office  of  the  register  of  deeds  showed 
some  conveyance  to  Harry  P.  Edwards,  so 
tbat  the  letter  was  properly  addressed  to 
Harry  P.  Edward.  The  registry  receipt  ac- 
knowledges receipt  of  tbe  registered  letter 
"No.  263,  P.  O.  Bessemer,"  addressed  to 
Harry  P.  Edwards.  This  receipt  is  signed 
H.  P.  Edwards,  per  H.  R.  Edwards.  It  is 
said  tbat  there  is  no  evidence  as  to  tbe  band- 
writing  of  Harry  R.  Edwards,  nor  is  there 
any  evidence  that  H.  R.  Edwards,  who  pur- 
ports to  sign  tbe  receipt,  is  Harry  R.  Ed- 
wards or  Harry  P.  Edwards.  This  is  again 
very  technical.  For  If  we  turn  to  tbe  case 
made  by  tbe  complainant,  we  find  that  the 
complainant  saw  fit  to  Introduce  tbe  record 
of  an  affidavit  made  by  Harry  R.  Edwards 
of  Cleveland,  Ohio,  dated  November  29,  1905, 
setting  forth  that  Harry  R.  Edwards  Is  tbe 


Digitized  by  VjOOQ  l€ 


130 


122  NORTHWESTERN  KEPOUTEB. 


(MicU. 


same  person  to  'nrbom  the  land  was  conveyed 
by  Tbomas  Dyer  as  Harry  P.  Edwards.  It 
would  seem,  therefore,  that  the  defendant, 
having  addressed  the  letter  to  the  proper 
party,  namely,  the  one  whose  name  appear- 
ed of  record  as  the  owner,  succeeded  In  get- 
ting It  Into  the  hands  of  the  proper  party, 
namely,  the  one  whose  real  name  was  mis- 
named of  record.  There  is  no  gromid  for 
complaint. 

The  point  is  made  that  the  answer  set 
forth  that  one  of  the  last  recorded  owners  of 
the  title  at  the  time  of  service  was  Mary  I/. 
Dodds.  It  is  stated  in  the  brief  of  defend- 
ant's comisel  that  this  was  a  mistake,  but 
what  is  more,  complainant's  case  shows  a 
complete  chain  of  title,  which  excludes  Mary 
L.  Uodds  from  any  ownerslilp  or  interest  in 
the  property. 

All  parties,  therefore,  appear  to  bare  been 
properly  served,  and  the  circuit  judge  was 
correct  in  holding  that  the  complainant's  ti- 
tle is  cut  off. 

The  decree  is  affirmed. 


DETROIT  UNITED  RY.  v.  LAU  et  al. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 
Estoppel  (§  70»)  —  Equitable  Estoppel— 

I'AiLUiiE  to  assebi  Title— Conveyance. 

Deiesdant's  brother,  a  stockholder  in  a 
construction  company  wuicb  had  the  contract 
to  buiiu  a.  railroad,  and  also  a  stockholder  in 
the  railroad  company  building  the  road,  pur- 
chased a  tract  of  land  at  the  junction  of  the 
road  with  another  railroad  for  the  purpose  of 
a  subway  crossing.  Title  was  taken  in  defend- 
ant as  trustee,  the  vendors  understanding  that 
the  sale  was  to  the  construction  company,  and 
the  final  payment  was  made  by  that  company. 
Subsetiuently  the  railroad  was  sold,  and  shortly 
before  the  purchaser's  land  commissioner  with 
defendant  traveled  over  the  line  to  ascertain 
what  physical  properties  were  owed  by  the  gran- 
tors, and  saw  the  land  purchased  by  defendant's 
brother,  which  was  occupied  by  a  siding  and 
tracks  and  used  as  a  storage  place  for  railroad 
material,  and,  though  defendant  knew  the  pur- 
po:$e  of  the  visit,  he  made  no  suggestion  of  any 
claim  thereto  either  in  himself  or  his  brother. 
'i'he  entire  track  was  needed  by  the  railroad 
and  by  the  purchaser,  and  the  contract  of  sale 
was  sufficiently  broad  to  cover  any  legal  or 
equitable  title  that  the  grantors  had  in  the  land. 
held,  that  defendant  could  not  claim  title  to 
all  of  the  tract  not  required  for  the  railroad 
right  of  way,  car  bouse,  and  station  sites,  but 
that  the  entire  tract  passed  to  the  purchaser. 
[Ed.  Note. — For  other  cases,  see  Estoppel. 
.     Cent.  Dig.  §i  183-187;    Dec.  Dig.  §  70.  •] 

Appeal  from  Circuit  Court,  Oakland  Coun- 
ty, in  Chancery;    George  W.  Smith,  Judge. 

Action  by  the  Detroit  United  Railway 
against  Harry  M.  Lau  and  another.  From 
the  decree,  defendants  appeal.    Affirmed. 

Argued  before  MONTGOMERY,  OSTRAN- 
DER,  HOOKER,  MOORE,  and  BROOKE,  JJ. 

George  M.  Sayles  and  Harry  M.  Lau,  for 
njipellants.  Frank  E.  Jenkins  (Brennao, 
Donnelly  &  Van  De  Mark,  of  counsel),  for 
iippellee. 


MOORE,  J.  The  Detroit,  Rochester,  Rt>- 
meo  &  Lake  Orion  Railway  was  organized 
under  the  laws  of  the  state  of  Michigan  for 
the  construction  and  equipment  of  a  railway 
line  between  the  villages  of  Royal  Oak  and 
Oxford,  Oakland  county,  and  the  village 
of  Romeo,  Macomb  county,  Mich.  The  De- 
troit Construction  Company,  Limited,  also 
organized  imder  the  laws  of  the  state  of 
Michigan,  had  the  contract  for  the  construc- 
tion and  equipment  of  said  railway.  The 
Detroit,  Lake  Orion  &  Flint  Railway,  also 
a  Michigan  corporation,  was  organized  to 
construct  and  equip  a  railway  line  between 
the  village  of  Oxford,  Oakland  county,  and 
the  city  of  Flint,  Genesee  county,  Mich. 
This  company  was  duly  organized,  but  never 
did  any  business  except  acquire  tbe  title 
to  the  right  of  way  between  the  points  for 
which  it  was  organized  to  construct  and 
equip  a  railway.  The  building  oi  the  road 
over  the  right  of  way  of  the  Detroit,  Lake 
Orion  &  Flint  Railway  was  carried  on 
through  the  name  of  the  Detroit,  Rochester. 
Romeo  &  Lake  Orion  Railway  by  the  Detroit 
Construction  Company,  Limited,  as  general 
contractor.  John  Winter,  Oliver  H.  Lau. 
and  Frank  C.  Andrews  owned  all  the  stock 
of  tbe  Detroit  Construction  Company,  Lim- 
ited, and  were  the  principal  owners  of  the 
stock  of  the  Detroit,  Rochester,  Romeo  & 
Lake  Orion  Railway.    On  or  about  July  27. 

1901,  a  contract  to  sell  the  Detroit,  Roches- 
ter, Romeo  &  Lake  Orion  Railway,  Detroit 
Lake  Orion  &  Flint  Railway,  and  certain 
other  railway  properties,  to  the  Detroit  Unit- 
ed Railway,  also  a  Michigan  corporation, 
was  made.  Some  time  after  this  a  new  cor- 
poration was  organized  known  as  the  De- 
troit &  Flint  Railway,  and  the  property  of 
the  Detroit,  Rochester,  Romeo  &  Lake  Orion 
Railway  was  conveyed  to  the  said  Detroit 
&  Flint  Railway,  and  by  it  conveyed  to  the 
Detroit  United  Railway.  At  the  time  of 
the  contract,  July  27,  1901,  the  rayway 
line  bad  not  been  completed  from  Oxford  to 
Flint,  tbe  original  contract  for  construction 
was  surrendered,  and  the  Construction  Com- 
pany, Limited,  continued  in  the  completion 
of  the  line  until  on  or  about  February  10, 

1902,  when,  through  the  failure  of  Frank 
C.  Andrews  and  tbe  City  Savings  Bank  of 
Detroit,  Mich.,  It  bad  to  abandon  tbe  con- 
struction, and  the  same  was  completed  by 
tbe  Detroit  United  Railway.  Up  to  the 
time  of  the  contract  of  July  27,  1901,  Harry 
M.  Lau  was  acting  as  attorney  for  the  De- 
troit, Rochester,  Romeo  &  Lake  Orion  Rail- 
way and  said  construction  company,  and 
a  part  of  his  duties  were  to  procure  rights 
of  way  south  of  Oxford  between  Oxford 
and  Flint  He  had  nothing  to  do  with  the 
right  of  way  except  to  assist  in  the  con- 
demnation proceedings.  November  15,  1900, 
Oliver  H.  Lau  purchased  from  Benjamin  c! 
Moore  and   EHeanor  Moore,   his   wife,   the 


•For  otbtr  cacet  see  sam*  topic  and  ■ection  NUMBER  tn  Dec.  *  Am.  Digs.  1907  to  date,  it  Raporter  Indexes 


Digitized  by  VjOOQ  l€ 


Mich.) 


MARSHALL  v.  SAGINAW  VALLEY  TRACTION  CO. 


131 


property  in  dispute,  la  the  village  of  Ox- 
ford, on  land  contract,  and  took  the  title  In 
tlie  name  of  Harry  M.  Lau,  trustee,  of  De- 
troit, Mich.  On  the  12th  day  of  August, 
1901,  Harry  M.  Lau  obtained  a  deed  of  the 
property  covered  by  the  contract  from  Mr. 
Moore  and  his  wife  to  himself  as  grantee. 
After  tbe  Detroit  United  Railway  took  pos- 
session on  August  1,  1SM)1,  a  controversy 
arose  as  to  what  property  was  covered  by 
said  contract.  Harry  M.  Lau  declined  to 
deed  the  property  to  the  complainant,  and 
this  proceeding  was  commenced  to  compel 
a  conveyance  of  tbe  land  to  complainant. 
Tbe  defendants  answered,  setting  up  the 
purchase  of  the  land  in  dispute  by  Oliver 
H.  Lau  and  disclaimed  any  Interest  there- 
to, except  holding  the  legal  title  in  trust 
for  Oliver  H.  Lau. 

Defendants  contend  that  the  bill  of  com- 
plaint should  be  dismissed,  with  costs  to 
tbem,  for  the  following  reasons:  <1)  The 
complainant  failed  to  prove  the  contract 
alleged  in  the  bill.  (2)  The  bill  prays  for 
the  reformation  of  tbe  deeds,  whidi  can 
be  done  only  on  two  grounds:  (a)  Mistake, 
(b)  Fraud.  (3)  The  cestui  que  trust  was  a 
necessary  party  defendant  to  the  suit.  (4) 
The  allegations  of  the  bill  are  not  sustained 
by  the  proof.  (5)  Tho  proof  shows  the 
complainant  guilty  of  laches  and  negligence. 
The  land  bought  of  Mr.  Moore  is  something 
more  than  181  feet  one  way  and  270  feet 
the  other  way,  and  is  at  the  junction  of  .the 
complainant  railway  with  the  Pontlac.  Ox- 
ford &  Northern  Railroad.  Tbe  complainant 
road  has  a  subway  crossing  upon  this  land, 
which  goes  under  the  Pontlac,  Oxford  & 
Xortbem  Railroad.  The  case  was  heard  in 
open  court  The  trial  Judge  granted  the 
relief  prayed,  but  held  that  Dr.  Lau  had  an 
equitable  lien  upon  the  land  for  $200  of 
the  purchase  price.  The  defendants  have 
appealed.    The  complainant  did  not  appeal. 

Upon  the  bearing  in  this  court  each  of 
the  defenses  urged  in  the  court  below  is 
Insisted  upon.  In  addition  to  the  facts  al- 
ready stated,  tbe  following  facts  are  estab- 
lished by  a  clear  preponderance  of  the  testi- 
mony: 

1.  Tbe  primary  object  In  obtaining  the 
land  was  to  provide  for  a  crossing  of  tbe 
two  roads  and  for  making  the  necessary 
connections  between  them.  Dr.  Lau  claims 
that  all  of  the  land  which  was  not  required 
for  tbe  company's  right  of  way,  car  house, 
and  station  sites  should  remain  his  in  con- 
sideration of  his  services  to  the  company. 
There  is  no  pretense  that,  if  the  railway  had 
not  required  some  of  this  land,  it  would 
have  been  purchased. 

2.  When  the  sale  was  made,  Mr.  Moore 
imderstood  it  was  to  tbe  Detroit  Construc- 
tion Company.  The  first  payment,  $200 
fn  currency,  was  made  to  him  by  Dr.  Lau, 
and  tbe  final  payment,  $300,  was  made  by 


a  cbeck  of  the  Detroit  Construction  Com- 
pany. It  Is  tbe  claim  of  tbe  complainant 
that  all  of  the  funds  used  to  make  tbe 
payment  were  the  funds  of  the  construction 
company,  while  it  is  tbe  claim  of  defendants 
that  the  $200  paid  by  Dr.  Lau  was  never  re- 
funded to  him.  It  Is  not  disputed  that  tlie 
final  payment  was  made  by  the  construction 
company. 

3.  The  record  shows  Mr.  Moore  gave  an 
option  upon  this  land  In  August,  1000,  that 
in  September  of  that  year  grading  was  done, 
tracks,  side  tracks,  and  a  "Y"  were  con- 
structed upon  it,  and  a  good  portion  of  the 
remaining  part  was  used  for  storing  railroad 
material. 

4.  After  the  contract  from  Mr.  Moore  to 
Harry  M.  Lau,  trustee,  was  executed  and 
before  July  27,  1901,  when  the  contract  of 
sale  to  the  complainant  was  made,  Mr.  Rob- 
ert Oakman,  land  commissioner  of  com- 
plainant, for  the  purpose  of  learning  what 
physical  properties  were  owned  by  the  grant- 
ors In  the  proposed  sale,  -went  over  the  line 
of  the  road  and  the  property  -in  question  in 
company  with  the  defendant  Harry  M.  Lau. 
and  saw  the  land  in  dispute  with  its  siding, 
Y,  and  ^acks,  and  used  as  a  storage  place 
for  railroad  material,  and,  though  Mr.  Lau 
knew  the  purpose  of  the  visit  of  Mr.  Oak- 
man,  he  made  no  suggestion  to  bim  of  any 
claim  to  tbe  property  either  in  himself  or 
in  his  brother  Dr.  Lau. 

5.  Tbe  land  In  controversy  is  needed  by 
complainant  and  was  needed  by  its  prede- 
cessors. Tbe  contract  which  the  complainant 
made  for  tbe  purchase  of  the  roads  is  suf- 
ficiently broad  to  cover  any  legal  or  equi- 
table title  that  the  predecessors  of  the  com- 
plainant bad  in  tbe  land  in  question.  If 
any  one  has  occasion  to  complain  of  the  de- 
cree made  in  this  case,  it  is  not  the  de- 
fendants. 

Tbe  decree  Is  affirmed,  with  costs. 


MARSHALL  v.  SAGINAW  VALLEY  TRAC- 
TION CO. 
(Supreme  Court  of  Michigan.     July  6,  1009.) 

1.  Evidence  (§  128*)— Damages— Statements 
TO  Physician— ADMissiBiLiiY. 

In  an  action  for  personal  injury,  stato- 
ments  of  plaintiff  as  to  her  inability  to  sleep, 
made  to  her  physician  while  treating  her,  are 
admisaible. 

[Ed.    Note. — For   other   closes,    see   Evidenoe, 
Cent.  Dig.  H  383-387;  Dec.  Dig.  $  128.*] 

2.  Evidence   (f   555*)— Expert  Testimony— 
Admissibility. 

The  statement  of  the  physician,  who  treat- 
ed plaintiff,  saing  for  a  personal  injury,  that 
he  could  determine  whether  plaintiff  was  tender 
at  a  certain  point  was  admissible  as  against 
the  objection  that  he  did  not  testify  how  lie 
was  able  to  make  such  determination,  since  de- 
fendant could  ascertain  the  source  of  the  pbysi- 
cian's  knowledge  by  proper  examination. 

[Ed.    Note.— For   other   cases,    see    Evidence, 
Cent.  Dig.  §  2376;    Dec.  Dig.  $  555.»] 


*For  otber  casei  lea  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


132 


122  NORTHWESTERN  REPORTER. 


(Mleta. 


8.  Dauaoes   n  ISO*)— Pebsonal  Injubies— 

EZOESSIVX   DAHAOES. 

A  street  car  passenger  was  injured  while 
attempting  to  board  a  car.  She  was  held  down 
under  the  projecting  step  of  the  car,  and  conld 
not  be  released  anal  the  ear  was  backed.  Aft- 
er her  release,  she  was  in  a  dazed  condition, 
suffering  from  the  shock.  She  sustained  bruises 
and  injnry  to  her  back,  confining  her  to  her 
bed  from  10  to  12  days.  At  the  date  of  the 
trial,  several  months  thereafter,  she  complained 
of  recurring  pains  in  the  back.  Held,  that  a 
verdict  for  $2,000,  reduced  by  the  trial  court 
to  $1,500,  was  not  ezcessive. 

[Ed.  Note. — For  other  cases,  see  Damages, 
Cent  Dig.  B  857-867;   Dec  Dig.  f  130.*] 

Error  to  Circnlt  Court,  Saginaw  County; 
Cbauncey  H.  Gage,  Judge. 

Action  by  Eliza  Marshall  against  the  Sag- 
inaw Valley  Trad^on  Company.  There  was 
a  Judgment  for  plaintiff,  and  defendant 
brings  error.   Affirmed. 

Argued  before  OSTRANDER,  HOOKESt, 
MOORE.  McAIiVAY,  and  BROOKE,  JJ. 

Weadock  &  Duffy,  for  appellant  Beach, 
O'Keefe  &  Rockwith,  for  appellee. 

BROOKE,  X  This  action  was  brought  to 
recover  damages  for  injuries  claimed  to  have 
been  sustained  by  plaintiff  In  boarding  one 
of  defendant's  cars  at  the  comer  of  Frank- 
lin and  Genesee  streets  in  the  city  of  Sag- 
inaw upon  the  4th  day  of  November,  1907. 
Plaintiff  claims  that  on  the  above  afternoon 
she  was  at  the  comer  of  Genesee  and  Frank- 
lin streets,  and  was  standing  near  the  rails 
of  the  street  car  track  as  the  car  In  ques- 
tion approached  the  crossing,  and  that  she 
signaled  the  car  to  stop;  that  when  It  stop- 
ped, she  laid  bold  of  the  handle  bar,  placed 
one  foot  upon  the  step,  and  was  about  to 
board  the  car  when  the  conductor  asked  her 
to  wait  a  minute,  whereupon  two  ladles  left 
the  car.  She  claims  that  she  continued  to 
hold  onto  the  handle  bar,  and  that  as  soon 
as  the  alighting  passengers  had  left  the  car, 
she  again  placed  her  foot  on  the  step  in  an 
effort  to  board  the  car.  She  was  carrying 
some  parcels  in  her  left  hand.  It  is  plain- 
tiff's claim  that  while  In  this  position  the 
car  was  started  suddenly.  Jerking  her  vio- 
lently backwards,  and  that  It  was  as  sud- 
denly brought  to  a  standstili,  after  moving 
from  6  to  10  feet  By  this  violent  movement 
plaintiff  claims  she  was  thrown  to  the 
ground,  and  partially  drawn  under  the  pro- 
jecting step  of  the  car,  receiving  the  inju- 
ries complained  of.  It  ivas  the  defendant's 
claim  that  the  plaintiff  did  not  offer  herself 
as  a  passenger  for  carriage  at  the  time  the 
cdr  was  standing  still,  but  attempted  to 
board  the  same  after  It  was  In  motion. 
Plaintiff  recovered  a  verdict  of  $2,000,  which 
was  afterwards  reduced  to  $l,B0O  by  the  cir- 
cuit Judge  when  considering  the  motion  for 
a  new  trial.  This  Judgment  is  brought  to 
this  court  for  review. 

Defendant  assigns  error  npon  the  examina- 


tion of  the  physician.  He  was  examined  in 
part  as  follows:  "Q.  Well,  what  condition 
did  you  find  her  In?  A.  I  found  a  great  deal 
more  of  the  external  evidences  of  this  trou- 
ble. She  BtUl  complained  of  being  unable  to 
sleep,  and  being  more  or  less —  Mr.  Duffy: 
I  move,  If  your  honor  please,  that  that  l>e 
stricken  out,  'still  complained  of  being  un- 
able to  sleep.'  The  Court:  This  was  after 
the  third  visit?  A.  This  was  after  the  third 
visit  I  think  the  question  was,  I  believe, 
after  the  third  visit  The  Court:  Yes. 
Judge  Beach  (counsel  for  plaintiff):  He  said 
he  couldn't  give  the  exact  time.  A.  I  cant 
give  you  the  -exact  days.  I  saw  her  a  num- 
ber of  times  since  that  The  Court:  You  say 
she  still  complained.  You  may  state  when 
she  first  complained  of  Inability  to  sleep. 
Mr.  Duffy:  Exception."  We  are  of  the  opin- 
ion that  this  question  Is  ruled  by  the  de- 
termination of  this  court  in  the  case  of  Will 
V.  Village  of  Mendon,  108  Mich.  251,  66  N. 
W;68. 

The  second  assignment  likewise  relates  to 
the  testimony  of  the  physician  to  the  effect 
that  he  could  determine  whether  she  was 
"tender  at  that  point  or  not";  the  objection 
being  that  the  physician  had  not  testified 
how  he  was  able  to  make  such  determina- 
tion, and  that  he  might  have  reached  his 
conclusions  from  statements  made  to  him 
by  the  plaintiff  rather  than  by  a  physical  ex- 
amination or  observation.  This  objection  Is 
not  tenable.  Counsel  for  defendant  could 
have  ascertained  the  sources  of  the  physi- 
cian's Imowiedge  by  proper  examination,  had 
they  so  chosen. 

The  next  assignment  of  error  relates  to  the 
claim  of  the  defendant  that  the  verdict  was 
against  the  weight  of  evidence.  We  have 
carefully  examined  the  record,  and  we  be- 
lieve that  the  learned  circuit  Judge  was  right 
in  his  disposition  of  this  contention.  We 
are  of  opinion  thav  the  record  shows,  by  a 
fair  preponderance  of  evidence,  that  the  ac- 
cident to  the  plaintlfr  happened  in  the  man- 
ner described  by  her  and  witnesses  oh  her 
behalf. 

Further  assignments  of  error  are  based  up- 
on the  Judge's  charge.  Taken  as  a  whole, 
we  think  the  charge  fairly  states  the  claims 
of  the  contending  parties,  and  the  law  ap- 
plicable thereto. 

The  record  shows  that  the  plaUitlff  was 
held  down  under  the  projecting  step  of  the 
car,  and  that  she  could  not  be  released  after 
It  was  brought  to  a  standstill  until  it  was 
backed  up  some  2  feet;  that*after  her  release 
she  was  In  a  dazed  condition,  suffering  from 
the  shock;  that  she  sustained  a  braise  over 
the  left  temple,  another  braise  over  the  left 
shoulder,  and  another  over  the  left  buttock 
and  the  lower  portion  of  the  back;  that  there 
was  a  swelling  and  abrasion  of  the  skin  over 
the  back  about  one-half  inch  in  diameter; 


•For  other  cue*  M«  Mun*  toplo  and  Metion  NUMBER  in  Deo.  ft  Am.  Dlgi.  1907  to  date,  *  Reporter  bidezw 


Digitized  by 


Google 


Bllch.) 


RODGBR8  SHOE  CO.  v.  COON. 


188 


that  tbe  swelling  was  quite  extensive.  She 
was  confined  to  her  bed  from  10  t«  12  days, 
and  at  the  date  of  the  trial,  several  months 
thereafter,  complained  of  recurring  pains  in 
the  back.  Under  these  conditions  we  are 
asked  to  say  that  a  judgment  for  $1,S00  is 
against  the  Just  rights  of  the  defendant.  We. 
are  unable  to  do  so. 
Jodgment  affirmed. 


RODGERS  SHOE  CO.  v.  COON. 
(Sopreme  Coart  of  Michigan.     July  6,   1909.) 

1.  Pbikcipai.  and  Subeiy  (|  94*)— Contbact 
OF  SusciT— Vasiation  or  Tebms. 

Where  the  principal  in  a  surety  bond  en- 
tered plaintiff's  emplojrment  as  a  salesman,  and 
was  authorized  to  make  collections  for  his  sales 
and  remit  to  a  certain  place,  and  tbe  bond 
was  conditioned  upon  his  paying  to  plaintiff  all 
moneys  or  other  property  received  b^  him  while 
in  plaintiff's  employ,  acts  of  plaintiff  in  allow- 
ing the  principal  to  retain  out  of  collections 
money  for  office  rent,  commissions,  and  ex- 
penses, instead  of  requiring  remittance  of  all 
money  received,  and  in  striking  his  balance 
at  the  end  of  tbe  year,  did  not  vary  tbe  con- 
tract of  suretyship;  and,  where  tbe  principal 
failed  to  turn  over  a  balance  due  plamtitf  at 
the  end  of  the  year,  the  sureties  were  liable 
therefor. 

[Ed,  Note.— For  other  cases,  see  Principal  and 
Surety,  Dec.  Dig.  i  94.*] 

2.  Pbikcipai  and  Sttbett  (|  59*)— Contsaot 
of  subetybhip— constbtjction. 

Contracts  of  suretyship  are  to  lie  strictly 
construed,  and  any  material  variation  is  fatal 
to  an  enforcement. 

[EdL  Note. — For  other  cases,  see  Principal  and 
Surety,  Cent  Dig.  {  103;   Dec.  Dig.  |  59.*] 

Error  to  the  Circuit  Court,  Wayne  County ; 
George  S.  Hosmer,  Judge. 

Action  by  the  Rodgers  Shoe  Company 
against  Henry  F.  Coon.  There  was  a  jus- 
tice's Judgment  for  defendant,  which  tbe  cir- 
cuit court  on  certiorari  reversed,  and  render- 
ed judgment  for  plaintiff,  and  defendant 
brings  error.    Affirmed. 

Argued  before  OSTRANDER,  P.  J.,  and 
HOOKER,  MOORE,  BROOKE,  and  McAL- 
VAY.  JJ. 

J.  Lawrence  Hibbard  (Stevenson,  Carpen- 
ter &  Butzei,  of  counsel),  for  appellant. 
James  6.  McHenry  (John  C.  Bills,  of  counsel), 
for  api)^ee. 

McALVAT,  J.  Plaintiff  brought  an  acUon 
In  debt  in  justice  court  in  the  city  of  Detroit 
against  defendant,  who  was  a  surety  on  a 
certain  bond  given  to  plaintiff  in  July,  1903, 
In  which  George  Piclihaver,  an  agent  of  plain- 
tiff, was  principal.  This.  t>ond  was  in  tbe 
sum  of  9600,  and  was  conditioned  as  follows: 
"Tbe  condition  of  tbe  above  obligation  is 
such  that  if  said  George  Plckbaver  shall  pay 
to  tbe  Rodgers  Shoe  Co.  any  and  all  moneys 
or  other  property  received  by  him  while  in 
the  employ  of  the  Rodgers  Shoe  Co.  belong- 
ing to  said  company  then  this  obligation  to 


I  be  void,  otherwise  to  remain  in  full  force  and 
virtue  in  law."  Plaintiff  declared  upon  this 
bond,  and  defendant  pleaded  the  general  is- 
sue. Upon  the  trial  before  the  justice  with- 
out a  jury  plaintUTs  evidence  consisted  of 
oral  testimony  and  depositions  of  witnesses. 
Defendant  offered  no  evidence.  Judgment 
was  rendered  in  favor  of  defendant,  where- 
upon plaintiff  removed  the  case  to  the  circuit 
court  by  certiorari.  In  that  court  the  Judg- 
ment was  reversed,  and  a  Judgment  entered 
for  plaintiff  for  the  amount  claimed. 

Tbe  case  Is  l>efore  this  court  upon  writ  of 
error  without  a  bill  of  exceptions,  under  Sup. 
Ct.  Rule  11  (T9  N.  W.  vl),  to  review  the  Judg- 
ment of  the  circuit  court.  The  question  rais- 
ed which  should  be  considered  first  is  wheth- 
er there  was  evidence  in  the  case  before  tbe 
justice  showing  an  unpaid  Indebtedness  to 
plaintiff  from  the  principal  in  the  bond,  aris- 
ing out  of  money  received  by  him  belonging 
to  the  plaintiff  while  employed  by  It.  It  will 
not  be  necessary  to  review  the  testimony  In 
the  case  on  the  part  of  plaintiff.  The  jus- 
tice so  found,  and  such  finding  was  based 
upon  abundant  evidence  to  support  It. 

The  remaining  error  assigned  necessary  to 
discuss  relates  to  the  claimed  variation  df 
tbe  suretyship  contract  It  Is  urged  that  a 
material  variation  of  such  contract  is  clearly 
established  by  the  plaintlfTs  evidence  in  tbe 
case.  Plaintiff's  evidence  shows  that  Pidt- 
baver,  tbe  principal  in  tbe  bond,  entered  tbe 
employment  of  plaintiff  in  July,  1903,  selling 
leather  and  rubber  goods  In  Detroit  for  It, 
and  was  authorized  to  make  collections  for 
such  sales,  and  remit  to  Toledo,  Ohio;  that 
he  was  allowed  to  retain  out  of  collections 
money  for  rent  of  office,  commissions,  and  ex- 
penses; that  his  balance  was  struck  annually 
at  the  end  of  the  year ;  that  on  December  31, 
1903,  there  was  a  balance  due  him  of  $102.80, 
and  when  bis  employment  ceased  on  Decem- 
ber 5,  1904,  there  was  found  to  be  a  balance 
due  from  Plckbaver  to  plaintiff  of  $348.15, 
which  is  tbe  amount  in  suit  PicUiaver  died 
before  tbe  commencement  of  this  suit  The 
condition  of  this  bond  is  in  simple  language, 
and  it  would  be  bard  to  express  its  purpose 
In  fewer  or  more  appropriate  words.  We  do 
not  find  that  in  any  respect  the  contract  of 
suretyship  was  varied  by  tbe  acts  of  plaintiff 
in  its  relations  with  tbe  agent,  Plcktiaver; 
That  the  law  requires  strict  construction  of 
these  "social"  contracts  of  suretyship  Is 
recognized,  and  any  material  variation  Is 
fatal  to  an  enforcement.  The  cases  cited  are 
accepted  as  authority  for  the  proposition, 
but  neither  the  rule  of  law  nor  the  autbori- ' 
ties  are  applicable  to  the  case  at  bar.  Pick- 
haver,  during  the  life  of  this  contract,  receiv- 
ed money  belonging  to  plaintiff  while  in  its 
employ,  which  he  did  not  pay  over.  Plain- 
tiff in  its  dealing  with  Its  agent  cannot  be- 
sald    to   have    been   careless    or    negligent 


•For  otbar  case*  lee  same  topic  and  secUon  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  tt  Reporter  Indexes. 


Digitized  by  VjOOQ  l€ 


134 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


Neither  It  nor  Pickhaver  made  any  contract 
with  the  surety  as  to  remittances  or  times  of 
settlement  The  contract  of  suretyship  was 
not  made  with  reference  to  plaintiffs  rela- 
tions to  Pickhaver,  except  as  expressed  by  Its 
terms.  There  Is  abundant  authority  that  the 
surety's  liability  has  not  been  affected  by  the 
dealings  between  plaintiff  and  the  principal 
as  disclosed  by  this  record.  Building  &  Loan 
ABS'n  V.  Glbbs,  110  Mich.  318,  78  N.  W.  138, 
and  cases  cited ;  Lancashire  Ins.  Co.  y.  Calla- 
han, 68  Minn.  277,  71  N.  W.  261,  64  Am.  St 
Rep.  475;  Watertown  t.  Simmons,  131  Mass. 
83,  41  Am.  Rep.  196;  Wllkerson  y.  Crescent 
Ins.  Co.,  64  Ark.  80,  40  S.  W.  465,  62  Am.  St 
Uep.  152;  Fhcenlx  Ins.  Co.  v.  Flndley,  59 
Iowa,  501,  13  N.  W.  738;  Pacific  Fire  Ins. 
Co.  V.  Pacific  Surety  Co.,  93  Cal.  7,  28  Pac. 
&i2. 

The  circuit  court  was  not  In  error  In  re- 
versing the  judgment  of  the  Justice  court 

The  judgment  Is  af&rmed. 


KENNEDY    v.   LONDON   &   LANCASHIRE 

FIRE  INS.  CO. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

1.  Evidence    (|    143*)— Remoteness— Decla- 
BATiONs— Title  of  Pbopebty  Insubed. 

On  an  issue  as  to  whether  an  insurance 
agent  had  notice  of  the  existence  of  taxes 
against  the  property  to  be  insured,  evidence  that 
two  or  three  years  before  the  issuance  of  the 
policy  insured  told  the  agent  about  the  taxes, 
and  thttt  be  expected  to  pay  them,  was  no  evi- 
dence of  the  condition  of  the  title  at  the  time 
of  the  Issuance  of  the  policy. 

[Ed.    Note. — For   other   cases,    see    Evidence, 
Cent.  Dig.  {  434;    Dec.  Dig.  §  143.*] 

2.  INSXTBANCE  (§  283*)— TITLE  OF  PBOPEBTT— 

Notice  to  Company. 

Where  Insured  left  the  matter  of  keeping 
insurance  on  his  property  to  an  insurance  agent, 
who  at  all  times  kept  it  insured,  at  first  in  one 
company,  and  later,  not  being  an  agent  for  that 
company,  of  his  own  motion,  without  any  ap- 
plication being  signed  b^  insured,  transferred 
the  insurance  to  another  company  which  he 'rep- 
resented, and  which  accepted  the  insurance,  the 
company  takes  the  risk  of  undisclosed  taxes  on 
the  property  when  it  issued  the  policy 

[Ed.   Note. — For  other  cases,   see   Insurance, 
Cent.  Dig.  g  643 ;   Dec  Dig.  i  283.»] 

3.  JcDOMENT  (t  720*)— Res  Judicata— Title 
TO  Insubed  Pbopebtt— Taxes. 

Where,  in  an  action  on  an  insurance  pol- 
icy, the  defense  is  that  insured  had  no  title  by 
reason  of  outstanding  tax  titles,  a  decree  ren- 
dered In  a  proceeding  for  writ  of  assistance  by 
purchaser  of  a  tax  title  to  the  insured  premises 
that  the  decree  and  sale  for  taxes  were  void  is 
conclusive  as  to  title. 

[Ed.   Note.— For  other  cases,   see  Judgment, 
Cent.  Dig.  §  1251;    Dec  Dig.  {  720.*] 

'4.  Appeal  and  Ebbob  (§  1031*)— Review— 
IIabmless  Ebbob— Evidence— Insubance. 
Where  a  wife  as  owner  of  the  property 
sued  on  a  fire  insurance  policy,  the  admission 
in  evidence  of  the  proofs  of  loss  as  tending  to 
fihow  amount  of  loss,  though  erroneous.  Is 
liarmless,  where  the  wife  knew  very  little  of 
the  matter  in  issue,  and  her  husband  and  an- 
otlier.    both    being    building   contractors,    testi- 


fied fully  as  to  the  amount  of  the  loss,  and  one 
witness  testified  for  defendant 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error^  Cent  Dig.  {{  4161-4170;    Dec.  Dig.    i 

5.  Appeal  and  Ebbob  (f  1050*)— Re  vie  w^— 
Habulebb  Ebbob — Evidence—Ownebsuip 
oir  Pbopebtt. 

Where  the  basis  of  the  defense  is  that  in- 
sured had  been  the  owner  of  the  property,  but 
her  title  had  been  divested  by  tax  proceed- 
ings, of  which  the  company  had  no  notice,  the 
admission  of  incompetent  evidence  of  plaintiff's 
husband  that  his  wife  owned  the  property  is 
harmless. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  H  415»-4160;    Dec.  Dig.   S 

Error  to  Circuit  Court  Wayne  County; 
Joseph  W.  Donovan,  Judge. 

Action  by  Marian  Kennedy  against  tbe 
Loudon  &  Lancashire  Fire  Insurance  Com- 
pany on  an  Insurance  policy.  From  a  judg- 
ment for  plaintiff,  defendant  brings  error. 
Affirmed. 

Argued  before  BLAIR,  C.  J.,  and  HOOK- 
ER, MOORE,  McALVAY,  and  BROOKE,  JJ. 

Lehman,  Riggs  &  Lehman,  for  appellant. 
Muybury,  Lukclng,  Emmons  &  Helfman, 
for  appellee. 


BLAIR,  C.  J.  Plabitlff  brought  suit  upon 
an  insurance  policy  Issued  by  defendant 
April  1,  1906,  to  recover  her  loss  upon  her 
hotel  property,  luown  as  the  Astor  House, 
in  Bay  City.  Defendant's  local  agent,  Ames, 
had  been  carrying  Insurance  on  this  prop- 
erty In  other  companies  for  a  long  time 
under  an  arrangement  with  plaintiffs  hus- 
band, who  represented  her.  "He  left  it  to 
me  to  carry  $4,000  on  that  property,  and  to 
place  it  in  whatever  company  1  wanted  to. 
and  I  did  so.  I  think  it  tiad  been  carried 
in  the  Atlas,  and,  when  that  policy  expired 
on  tbe  first  of  April,  I  renewed  it  in  the 
defendant  company,  because  I  did  not  then 
have  the  Atlas  In  my  Issues,  and  to  keep 
It  in  my  business  I  transferred  it  to  this 
company.  My  letter  accompanying  the  poli- 
cy would  notify  Mr.  Kennedy  of  the  change. 
My  letter  was  dated  the  second  of  April. 
I  did  not  notify  him  what  company  I  was 
in.  It  was  all  right  so  long  as  It  was  in 
some  good,  reliable  company."  Mr.  Ames 
had  been  familiar  with  the  Astor  House 
proi>erty  since  1876.  tie  usually  kept  plniu- 
tifl's  policies  In  his  own  safe.  The  policy 
in  suit  was  forwarded  to  plaintiff's  husband 
at  Detroit  AprU  2,  1006.  Since  1902  plain- 
tiff and  her  husband  had  lived  in  Detroit. 
No  written  application  was  made.  On  the 
20th  day  of  April,  1904,  the  circuit  court 
for  tbe  county  of  Bay,  In  chancery,  made  a 
decree  and  order  of  sale  on  account  of  de- 
linquent taxes  for  the  year  1901.  The  prop- 
erty covered  by  such  decree  included  the 
insured  property.  On  the  23th  day  of  May. 
1905,    Mary    L.    Farley   of   Flint  purchased 


*For  other  csfes  see  same  topic  and  section  NUMBER  In  Dto.  ft  Am.  Dtsi.  U07  to  date,  St  Reporter  Indexes 


Digitized  by  LjOOQIC 


Mirh.) 


KENNEDY  v.  LONDON  &  LANOASHIRE  FIRE  INS.  CO. 


13.-> 


the  state's  Interest  In  the  property,  and  re- 
f-olved  a  deed  thereof  from  the  Auditor 
t^eneral  on  June  26,  1005.  Proof  of  service 
of  notice  for  reconveyance  was  filed  Novem- 
ber 13,  ISK^.  Petition  for  writ  of  assistance 
was  filed  by  Mrs.  Farley  on  November  22, 
1906,  to  which  Mrs.  Kennedy  filed  her  an- 
swer, claiming  that  the  decree  relied  upon 
was  void.  The  matter  came  on  to  be  beard 
on  pleadings  and  proofs  in  open  court  on 
January  7,  1907,  and  a  decree  was  entered, 
holding  the  decree  and  original  sale  void 
and  dismissing  the  petition  upon  condition 
that  Mrs.  Kennedy  pay  to  the  petitioner 
the  taxes  of  1901,  1902,  and  1903  and  inter- 
est at  12  per  cent  to  date,  and  all  costs  and 
charges  paid  by  petitioner  as  a  part  of  the 
purchase  price.  Mrs.  Kennedy  complied 
with  the  condition  of  the  decree,  and  re- 
ceived a  quitclaim  deed  from  Mrs.  Farley 
on  the  8th  day  of  January,  1907.  The  fire 
occurred  on  April  9,  1906.  On  the  7th  day 
of  June.  1906,  plaintiff  made  and  served 
proofs  of  loss  which  were  returned  to  her 
on  June  24th  by  defendant's  attorney,  with 
notice  that  the  company  declined  to  pay 
said  loss,  for  the  reason  that  the  policy 
was  void  for  various  reasons  specified. 

On  the  subject  of  the  taxes,  Mr.  Kennedy 
testified:  "Q.  Did  you  ever  tell  Mr.  Ames 
that  the  taxes  for  1901,  1902,  and  1903  bad 
l)een  unpaid,  so  as  to  become  a  Men  in  fa- 
vor of  the  government?  A.  He  knew  that 
was  so  at  the  time  he  took  out  this  policy. 
I  did  not  take  out  the  policy.  *  •  *  Aft- 
er the  fire,  I  found  out  about  five  days 
after  the  fire  that  Mrs.  Farley  was  carryhig 
$1300  on  the  same  property.  •  ♦  *  I 
says:  'Ames,  I  have  cleared  up  the  mortgage 
of  fl.500.  and  there  is  some  back  tax  which 
was  some  time  previous  to  this.'  •  •  • 
Q.  How  long  before  this  policy  was  made? 
A.  A  couple  of  years.  Q.  What  did  you  tell 
him  about  the  taxes?  A.  I  told  him  that 
there  were  some  back  taxes,  and  as  soon 
as  I  could  get  around  to  that,  I  would  clear 
them  up.  Q.  Did  he  ever  ask  you  anything 
more  about  taxes?  A.  I  do  not  remember 
of  ever  seeing  him  after  that  Q.  So  that 
the  last  time  yon  bad  a  talk  with  blm  you 
discussed  the  question  of  some  back  taxes 
that  were  unpaid?  A.  Yes,  sir.  Q.  You  told 
liim  you  would  soon  pay  them.  You  were 
a  little  short  in  paying  the  mortgage?  A. 
Yes,  sir.  Q.  Yon  would  clean  them  up  soon? 
A.  Yes.  sir;  something  like  that  Q.  That 
was  how  many  years?  Give  us  your  best 
estimate  the  years  before  you  got  this  poli- 
cy. A.  1  think  two  years.  Q.  Will  you 
svrcar  it  was  not  four  years  before?  A.  I 
would  not."  Mr.  Ames  testified:  "At  the 
time  I  issued  this  policy,  'Exhibit  1,'  I  did 
iiiit  know  there  were  any  back  taxes  on  the' 
property.  1  did  not  know  at  that  time  the 
taxes  for  the  years  1901,  1902,  and  1903 
bad  not  been  paid.  I  did  not  know  at  the 
time  the  policy  was  written  that  Mary  L. 
Farley  bad,  or  claimed  to  have,  any  title 


upon  that  property  and  I  did  not  know  at 
the  time  of  the  fire  or  any  time  before  the 
fire.  I  first  found  out  after  the  German  of 
Peoria  bad  paid  a  claim  to  tbe  Farley  peo- 
ple of  Flint  when  Mr.  McLean  was  making 
an  estimate  of  the  building.  I  think  I 
found  it  out  then.  •  •  •  I  had  some 
conversation  with  Mr.  Kennedy  about  tbe 
mortgage  and  some  taxes.  He  simply  told 
me  that  the  mortgage  was  all  straightened 
up.  He  did  not  at  that  time  tell  me  about 
some  back  taxes.  He  told  me  about  the 
back  taxes  some  time  before  that  when  he 
was  speaking  of  the  taxes  and  the  mortgage, 
and  tbe  amount  due,  etc.,  but  at  the  time 
that  be  told  me  the  taxes  were  paid,  I  sim- 
ply congratulated  him  on  the  fact  that  ev- 
erything was  straightened  up.  I  knew  of 
the  tax  titles,  not  any  back  taxes.  It  might 
have  been  a  year  or  four  or  five  months 
before  that  he  told  me  there  were  some  back 
taxes.  *  •  •  It  was  about  the  time  he 
paid  this  mortgage,  or  shortly  after  the 
mortgage  was  paid,  he  told  me  that  the  tax- 
es and  the  mortgage  and  everything  had 
been  paid,  but  the  year  or  two  previous  to 
that  I  know  that  there  were  some  back  tax- 
es, whether  1901  or  1888,  or  1890,  I  did  not 
Icnow."  The  following  special  question  was 
submitted  to  the  Jury,  and  answered  by 
them  in  the  afllrmative,  viz.:  "Do  you  find 
that  Kennedy  prior  to  the  issuance  of  the 
policy  in  suit  notified  defendant's  agent 
Ames  that  these  taxes  were  delinquent  and 
unpaid?"  The  Jury  found  a  verdict  In  fa- 
vor of  plaintiff.  Defendant  made  a  motion 
to  vacate  and  set  aside  the  answer  to  the 
special  question  for  the  reasons  that  there 
was  DO  competent  evidence  to  warrant  its 
submission,  and  tbe  answer  was  against 
the  weight  of  the  evidence.  1?he  motion 
was  also  for  a  new  trial  for  other  reasons. 
The  court  denied  the  motion,  filing  his  rea- 
sons therefor,  to  which  exceptions  were  tak- 
en and  errors  assigned  thereon.  Defendant 
brings  the  record  to  this  court  for  review 
upon  writ  of  error. 

It  is  undisputed  that  Mr.  Kenuod,v  spoko 
to  Mr.  Ames  about  the  taxes  either  two  or 
three  years  before  the  issuance  of  the  poli- 
cy and  said  that  he  expected  to  pay  thorn 
soon;  and  the  serious  conflict  between  thciu 
is  as  to  whether  he  told  Ames  that  he  ha<) 
paid  tbem.  This  presented  a  question  ot 
fact  for  the  Jury,  and  by  their  answer  to 
tbe  special  question  they  found  that  Keuun- 
dy  did  not  tell  Ames  later  on  that  he  ha<t 
paid  them.  We  agree,  however,  with  the 
contention  of  defendant's  counsel  that  tV»e 
facts  as  stated  by  plaintiff's  husband  were 
no  notice  to  Ames  of  the  condition  of  the 
title  to  the  property  on  April  1,  1906,  but, 
under  the  peculiar  circumstances  of  this 
case,  the  question  of  notice  to  Mr.  Ames  is 
not  very  important  No  application  was 
niiule  for  this  policy  in  writing  or  otherwise 
than  by  the  general  direction  to  keep  tlic 
property  insured.     Plaintiff  had  never  had 


Digitized  by  LjOOQIC 


13G 


122  NORTHWESTERN  REPORTER. 


(Iowa 


a  policy  In  defendant  company  before,  and 
Mr.  Ames  transferred  the  policy  to  defend- 
ant company  because  be  had  lost  the  Atlas, 
in  which  It  bad  been.  Neither  plaintiff  nor 
ber  husband  made  any  representations  what- 
erer  for  the  purpose  of  procuring  this  in- 
surance and,  under  such  circumstances,  the 
company  took  the  risk  of  undisclosed  taxes 
when  it  issued  the  policy.  O'Brien  y.  In- 
surance Co.,  62  Mich.  135,  17  N.  W.  726; 
Brunswick,  etc.,  Co.  v.  N.  Assurance  Co.,  142 
Mich.  29,  106  N.  W.  76.  The  decree  of  sale 
for  the  taxes  In  question  fixed  the  date  of 
the  sale  for  a  day  earlier  than  that  prescrib- 
ed by  the  statute  and  the  sale  was  actually 
made  upon  the  day  fixed  by  the  decree. 
The  same  court  that  entered  the  decree 
held,  and  we  think  correctly,  in  the  proceed- 
ings for  writ  of  assistance  that  the  decree 
and  the  sale  made  under  it  were  void.  De- 
fendant had  no  right  to  be  made  a  party 
to  the  proceedings.  The  proper  parties  were 
before  the  court  and  the  decree  must  be 
held  conclusiTe  in  this  cause.  Spaulding  t. 
O'Connor,  119  Mich.  45,  77  N.  W.  323;  Pen- 
insular Savings  Bank  t.  Ward,  118  Mich. 
87,  76  N.  W.  161,  79  N.  W.  911;  Youngs  v. 
Clark,  120  Mich.  528,  79  N.  W.  803;  Nap- 
per  V.  Pltzpatrlck,  139  Mich.  139,  102  N.  W. 
642;  Watts  V.  Bublitz,  99  Mich.  586,  58 
N.  W.  465.  The  failure  to  disclose  these  out- 
standing taxes  did  not  avoid  the  policy  nor 
did  the  liens  created  thereby.  Brunswick, 
etc.,  Co.  y.  Northern  Assur.  Co.,  supra;  Al- 
kan  V.  Insurance  Co.,  53  Wis.  136,  10  N.  W. 
01;  Insurance  Co.  t,  Plckel,  119  Ind.  155, 
21  N.  E.  546,  12  Am.  St.  Rep.  393;  Read, 
etc.,  V.  Insurance  Co.,  103  Iowa,  307,  72  N. 
W.  CC5,  64  Am.  St.  Rep.  180;  Hosford  v. 
Insurance  Co.,  127  U.  S.  404,  8  Sup.  Ct.  1199, 
32  L.  Ed.  196;  Baley  y.  Insurance  Co..  80 
N.  Y.  21,  36  Am.  Rep.  570. 

The  seventh  and  eighth  assignments  of  er- 
ror are  to  the  efTect  that  the  court  erred  in  re- 
ceiving the  proofs  of  loss  in  evidence  as  com- 
petent for  all  purposes,  and  in  refusing  de- 
fendant's request  for  an  instruction  that  they 
were  not  competent  as  tending  "to  prove  the 
ownership  of  the  property  or  the  fact  of  loss 
or  the  amount  of  the  loss."  We  think  the 
court  erred  in  refusing  this  request,  but  that 
Juch  error  could  not  have  prejudiced  the 
defendant.  The  plaintiff  was  not  sworn  up- 
on the  trial,  and  it  is  apparent  from  the  rec- 
ord that  she  bad  very  little  to  do  with  the 
matter.  Her  husband  and  Mr.  McLean, 
both  of  them  being  building  contractors 
of  long  experience,  testified  fully  as  to  the 
amount  of  the  loss,  and  one  witness  testi- 
fied for  defendant  The  jury  found  in  ac- 
cordance with  the  testimony  of  plaintllTs 
witnesses  and  against  the  testimony  of  de- 
fendant's witness,  and  it  would  be  unreason- 
able to  hold  that  the  statement  of  loss  in 
the  formal  proofs  of  loss  could  have  affect- 
ed their  verdict.     Plaintiffs  husband  testi- 


fied against  objection  that  ttie  evidence  was 
incompetent,  that  she  was  the  owner  of  the 
property  in  question,  and  had  been  for  25 
years.  Defendant  assigns  error  upon  the 
admission  of  this  testimony,  citing  in  sup- 
port of  his  assignment  Hiram  Jennison  et 
al.  V.  John  Haire  et  al.,  29  Mich.  207,  and 
Luman  Jennison  et  al.  v.  John  Haire  et  al.,. 
29  Mich.  220.  In  those  cases  an  objection 
was  sustained  to  the  following  question: 
"State  whether  all  the  logs  were  not  subject 
to  a  lien  of  the  Bendon  Lumber  Company 
for  the  stumpage^  and  whether  that  com- 
pany was  not  the  owner  of  the  lands  from 
which  the  timber  was  cut  by  you."  Tbe 
exclusion  of  the  testimonj  was  sustained 
by  this  court  upon  tbe  ground  that  so  much 
of  tbe  proposed  question  as  required  the 
witness  to  swear  that  the  company  owned 
the  lands  was  subject  to  the  objection  of 
Incompetency.  See  page  216.  Defendant'a 
agent  testified  that  he  had  been  in  the  real 
estate  business  for  20  years,  and  had  been 
familiar  with  this  particular  property  for 
about  the  same  length  of  time  and  had  car- 
ried Insurance  on  it  ever  since  he  had  been 
in  the  insurance  business,  for  12  or  13  years. 
Defendant  put  in  records  showing  that  the 
property  was  assessed  to  plaintiff  bad  been 
sold  by  tbe  state  for  delinquent  taxes  un- 
der a  court  decree,  and  deeded  by  the  Audi- 
tor General  to  Mrs.  Farley.  The  heart  of 
tbe  defense  was  that  Mrs.  Kennedy  had 
been  the  owner  of  the  property,  but  that  her 
title  bad  been  divested  by  tbe  tax  proceed- 
ings, of  which  it  bad  no  notice,  and  that 
thereby  her  policy  was  avoided.  Under  the 
circumstances  disclosed  by  this  record,  we 
think  there  can  be  no  doubt  that  plaintiff 
was  the  owner  of  the  property,  and  it  would 
be  a  reproach  to  tbe  courts  to  reverse  th& 
the  case  for  the  error  in  admitting  tbe  tes- 
timony of  plaintiff's  husband. 

We  have  considered  the  other  errors  as- 
signed, but  do  not  find  any  of  them  so  prej- 
udicial as  to  warrant  a  reversal  of  tbe 
judgment. 

The  judgment  is  aflSrmed. 


MARKLBY   T.   WESTERN   UNION   TELE- 
GRAPH CO.t 
(Supreme  Court  of  Iowa.    July  2,  1909.) 

1.  NoTicB  (S  10»)  —  SsBviCK  —  Pboof— Suffi- 
ciency. 

Under  Code,  {  4681,  providing  that  tbe^ 
service  of  any  notice  required  by  law  may  be 
proved  by  the  affidavit  of  any  competent  wit- 
ness, attached  to  a  copy  of  such  notice,  a  re- 
turn by  the  sheriff  of  service  of  a  notice  of  a 
claim  for  damages,  which  was  not  sworn  to^ 
did  not  sufficiently  comply  with  such  section, 
and   was  inadmissible. 

[Ed.  Note.— For  other  cases,  see  Notice,  Cent. 
Dig.  S  32;    Dec.  Dig.  {  10. ♦] 


•For  Otber  case*  ■«•  sama  topic  and  section  NUMBER  in  Deo.  ft  Am.  Dig*.  U07  to  data,  *  Reportar  Indazea 

t  Rehearing  denied. 


Digitized  by  LjOOQIC 


Iowa) 


MARELEY  v.  WESTERN  UNION  TELEGRAPH  CO. 


13T 


2.   ETIDKROB   (J   4T1*)— COHCLUBIOK    OF   WlT- 
RESS. 

Testimony  of  a  witnen  that  he  served  no- 
tice on  one  C.,  defendant  telegraph  companT'a 
duly  authorized  agent  at  a  certain  point,  wai 
admissible,  as  arainst  the  objection  that  the 
statement  that  C.  was  the  dnly  authorized 
agent  was  the  mere  conclnslon  of  the  witness. 

[Ekl.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  <  2175;  Dec.  Dig.  {  471;*  Witness- 
es, Cent.  Dig.  SI  833-836.] 

S-  Pkinotpal  and  Agent  (|  22*)— Proof  of 

AQKNCY— EVIDEHCB— COKPETKNCT. 

Where,  in  an  action  against  a  telegraph 
company  for  failure  to  promptly  deliver  a  mes- 
sage, there  was  an  issue  as  to  whether  one  C, 
on  whom  notice  of  claim  was  served,  was  de- 
fendant's agent,  testimony  of  plaintiff  that  for 
some  time  he  had  worked  within  one  block  of 
defendant's  office;  that  he  was  frequently  at 
the  depot  where  the  office  was  located,  and  saw 
C.  there;  that  he  knew  the  operator  at  that 
place:  and  that  he  saw  C.  sending  telegrams 
or  delivering  them  from  defendant's  office— was 
admissible. 

[Ed.  Note. — For  other  cases,  see  Principal  and 
Agent.  Cent  Dig.  t  40;    Dec.  Dig.  {  22.*] 

4.  Phircipal  and  Agent  «  19*)— Pboof  of 

AOBNCT. 

Proof  that  one  C.  was  in  charge  of  defend- 
ant telegraph  company's  office  at  a  certain 
place  was  sufficient  prima  facie  proof  of  O.'a 
agency. 

[Ed.  Note.— For  other  cases,  see  Principal  and 
Agent,  Cent  Dig.  t  36 ;  Dec.  Dig.  I  19. «] 

5.  Telbobaphb  and  Telephones  (J  54*) — 
Failure  to  Tbansvit  Pbomptly— Action 
FOB  Damaoes— Pbesentation  op  Claim. 

The  negligent  delay  in  delivery  of  a  mes- 
sage wonld  not  give  rise  to  a  cause  of  action, 
unless  such  negligence  became  a  proximate 
cause  of  the  injury  complained  of;  and,  where, 
if  a  telegram  sent  on  the  28th  of  the  month  had 
been  delivered  on  the  29th,  or  on  the  30th,  no 
injury  to  plaintiff  would  have  resulted,  a  no- 
tice of  claim,  served  on  defendant  within  60 
days  after  the  30th,  sufficiently  complied  with 
Code,  {  2164,  providing  that  a  claim  must  be 
presented  within  60  days  from  the  time  the 
caose  of  action  accrues. 

[Ed.  Note.— For  other  cases,  see  Telegraphs 
and  Telephones,  Cent  Dig.  ^  42;  Dec.  Dig.  { 
54.*] 

6.  Teleqkaphb  and  Telephones  (g  54*)  — 
Failube  to  Transmit  Pbomptlt— Aotioh 
FOB  Damages — Presentation  of  Claim. 

Where  a  jury  might  have  found  that,  if 
defendant  telegraph  company  had  delivered  on 
December  29th  a  message  received  the  preceding 
day,  it  would  not  have  been  guilty  of  negli- 
gent delay,  presentation  of  plaintifTs  claim  on 
Febmary  27th  succeeding  complied  with  Code 
I  2164,  requiring  notice  of  a  claim  for  damages 
to.  be  presented  within  60  days  from  the  time 
tlie  canse  of  action  accrues. 

[Ed.  Note. — For  other  cases,  see  Telegraphs 
and  Telephones,  Cent  Dig.  (  42 ;    Dec.  Dig.  J 

7.  Teleokaphs  and  Telephones  ({  54*)  — 
Failube  to  Transmit  Promptly- Action 
fob  Damages— Presentation  of  Claim. 

A  telegram,  sent  to  plaintiff  on  December 
28th,  notif^ng  him  of  his  mother's  illness,  was 
not  delivered  until  December  31st,  at  which 
time  it  was  too  late  for  him  to  reach  her  bed- 
side before  her  death.  Held  that,  assuming 
that  defendant  was  gnilty  of  negligent  delay 
in  failing  to  deliver  on  December  28tD,  its  neg- 
ligence was  nevertheless  a  continuing  negli- 
gence up  to  December  3l8t,  and  hence  a  pres- 


entation of  plaintiff's  claim  for  damages  for 
mental  suffering  on  February  28th  fallowing 
sufficiently  complied  with  said  section  2164  of 
the  Code. 

[Ed.  Note^For  other  cases,  see  Telegraphs 
and  Telephones,  Cent  Dig.  |  42 ;    Bee.  Dig.  f 

8.  Teleobaphs  and  Telephones  ({  54*)— 
Failube  to  Deliver  Message— Pbesenta- 
tion of  Claim— Evidence. 

Where,  in  an  action  against  a  telegraph 
company     for    damages     through     failure     to 

Sromptly  deliver  a  messagt,  the  contract  in- 
orsed  on  the  back  of  the  blank  form  on  which 
the  message  was  written  was  not  introduced  in 
evidence,  provision  thereof,  calling  for  a  pres- 
entation of  a  claim  for  breach  of  contract  with- 
in 60  days  after  the  message  was  filed  for 
transmission,  was  not  controlling.  . 

[Ed.  Note. — For  other  cases,  see  Telegraphs 
and  Telephones,  Cent.  Dig.  iSf  42,  47;  Dec. 
Dig.   I  54*3 

9.  Teleorafhb  and  Telephones  (|  64*)— 
Failure  to  Deliver  Message— Pbesenta- 
tion of  Claim. 

Where  plaintiff  brought  his  action  against 
a  telegraph  compan:^  for  damages  through  fail- 
are  to  promptly  deliver  a  message  In  tort,  and 
not  on  the  contract,  a  provision  of  the  con- 
tract, calling  for  a  presentation  of  a  claim  for 
damages  within  60  days  after  the  message  was 
filed  for  transmission,  was  not  controlling. 

[Ed.  Note.— For  other  cases,  see  Telegraphs 
and  Telephones,  Cent  Dig.  {f  42,  46;  Dec. 
Dig.  I  64.*] 

10.  Tblegbaphb  and  Telephones  (i  54*)— 
Failure  to  Deliver  Message— Notice  of 
Claim  —  Time  for  Serving  —  Statutory 
Provision. 

Code,  f  2163,  makes  proprietors  of  tele- 
graph lines  liable  for  damages  resulting  from 
failure  to  deliver  messages,  the  provision  of  any 
contract  to  the  contrary,  notwithstanding  sec- 
tion 2164  provides  that  no  action  for  such  dam- 
ages shall  be  maintained  unless  a  claim  there- 
for shall  be  presented  to  the  company  within 
CO  days  from  the  time  the  cause  of  action  ac- 
crues, held,  that  telegraph  companies  were  lim- 
ited, in  this  respect,  to  the  statutory  provision, 
and  that  it  was  not  competent  for  the  company 
to  qualify  such  provision  by  a  contract  requiiv 
ing  the  presentation  of  a  claim  for  damages  to 
be  filed  within  60  days  after  the  message  is 
filed  for  transmission. 

[Ed.  Note.— For  other  cases,  see  Telegraphs 
and  Telephones,  Cent.  Dig.  {|  40,  42 ;  Dec.  Dig.    * 
i  54.*] 

Appeal  from  District  Court,  Carroll  Coun- 
ty; Z.  A.  Church,  Judge. 

The  plalntur  brought  this  action  for  dam- 
ages for  mental  suffering,  caused  by  negli- 
gent delay  in  the  delivery  of  a  telegraphic 
death  message.  At  the  close  of  bis  evidence 
the  trial  court  dismissed  bis  case,  and  enter- 
ed judgment  against  bim  for  costs.  Plain- 
tiff appeals.    Reversed. 

Oeorge  W.  Bowen  and  J.  B.  McCrary,  for 
appellant    Lee  &  Robb,  for  appellee. 

EVANS,  C  3.  The  plaintiff  was  a  resident 
of  Plattsmouth,  Neb.,  at  tbe  time  of  the  oc- 
currences complained  of  herein.  On  Decem- 
ber 28,  1906,  at  about  9:45  p.  m.,  tbe  plain- 
tiff's brother  filed  with  the  defendant  at 
Olldden,  Iowa,  tbe  following  prepaid  mes- 
sage for  immediate  transmission  to  tbe  plaln- 


•For  otber  cases  sea  sams  topic  and  section  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  data,  ft  Reporter  Indexes 


Digitized  by  LjOOQ  IC 


138 


122  XORTnWESTEBN  RBPOHTER. 


(Iowa 


tiff:  "Mother  not  expected  to  live  until  mom- 
iug.  Come  at  once."  Tbla  message  was  Im- 
mediately transmitted  to  defendant's  opera- 
tor at  Plattsmouth,  but  was  not  delivered  to 
tlic  plaintiff  until  0  or  10  o'clock  a.  m.  of 
December  31st.  Thereupon  the  plaintiff  took 
the  first  train,  leaving  his  home  at  5  p.  m., 
on  the  same  day,  and  arriving  at  the  station 
nearest  his  mother's  home  at  11:30  p.  m. 
Upon  such  arrival  be  learned  that  bis  moth- 
er bad  died  at  4  o'clock  that  day.  His  peti- 
tion averred  that  on  February  27,  1907,  he 
presented  his  claim  in  writing  to  the  defend- 
ant company  by  serving  written  notice  there- 
of upon  one  William  Clement,  its  agent  at 
Plattsmouth.  Neb.,  and  that  he  likewise  pre- 
sented his  claim  to  the  defendant  on  Febru- 
ary 28,  1907,  by  serving  written  notice  there- 
of on  one  Flansburg,  the  agent  of  the  de- 
fendant company  at  Glidden,  Iowa.  The  an- 
swer of  the  defendant  was  a  general  denial. 
The  plaintiff  offered  evidence  tending  to  sup- 
port all  the  allegations  of  his  petition.  The 
trial  court  ruled  out  all  evidence  offered  by 
him  tending  to  prove  the  presentation  of  his 
claim  on  February  27th  by  serving  written 
notice  upon  William  Clement  That  such 
claim  was  presented  on  February  28th  by 
serving  written  notice  upon  Flansburg  at 
Olidden  was  conceded  at  the  trial.  At  the 
close  of  the  evidence  the  trial  court  directed 
a  verdict  on  the  ground  that  the  plaintiff 
had  not  proved  a  presentation  of  his  claim 
within  60  days  from  the  time  his  cause  of 
notion  accrued,  as  required  by  section  2164 
of  the  Coda  The  only  controversy  presented 
to  us  turns  on  this  question. 

1.  The  plaintiff  attempted  to  prove  by  C. 
D.  Qulnton,  sheriff  of  Cass  county.  Neb., 
that  he  had  served  the  written  notice  plead- 
ed by  plaintiff  upon  defendant's  agent  at 
Plattsmouth.  The  written  notice  contained 
the  following  indorsement  and  return:  "The 
foregoing  notice  came  into  my  bands  for 
service  on  the  25th  day  of  February.  1907, 
and  on  the  27th  day  of  February,  1907,  I 
duly  served  the  sam^  upon  the  Western  Un- 
ion Telesraph  Company  by  rending  the  same 
to  William  Clement,  their  duly  authorized 
agent  at  Plattsmouth,  Nebraska,  and  deliver- 
ing to  him  a  true  copy  thereof.  All  done  oo 
the  day  and  at  the  place  above  written.  C. 
D.  Qulnton,  Sheriff  Cass  County,  Nebraska." 
This  return  was  not  sworn  to,  and  was  there- 
fore not  a  sufficient  compliance  with  section 
4<J81  of  the  Code,  which  provides  that  such 
proof  of  service  may  he  made  by  affidavit 
within  six  months.  To  avoid  the  necessity 
of  producing  the  sheriff  as  a  witness  the 
plaintiff  procured  a  stipulation  from  defend- 
iint's  counsel,  to  the  effect  "that  if  C.  D. 
Qulnton,  sheriff  of  Cass  county,  Neb.,  were 
present,  he  would  testify  that  on  the  27th 
(lay  of  February,  1907,  he  served  the  notice 
in  question  upon  the  Western  Union  Tele- 
graph Company,  defendant  herein,  by  read- 
ing the  same  to  William  Clement,  their  duly 


authorized  agent  In  Plattsmouth,  Neb.,  and 
delivering  him  a  true  copy  thereof.  Said 
evidence  to  be  subject  to  objections  whicii 
the  defendant  may  press  at  the  time  the  ex- 
hibit is  offered  in  evidence.  The  evidence 
to  have  the  same  force  and  effect  as  though 
the  witness  were  present  on  the  witness 
stand,  testifying  to  the  above  statements." 
The  plaintiff  offered  in  evidence  tbe  written 
notice  referred  to,  together  with  tbe  stipula- 
tion of  counsel  In  reference  to  tbe  testimony 
of  tbe  sheriff.  Thereupon  the  defendant  ob- 
jected to  the  evidence  as  incompetent,  on  tbe 
ground  that>'the  statement  that  "Clement  is 
the  duly  authorized  agent  of  the  defendant" 
Is  a  mere  conclusion  of  the  witness.  This 
objection  was  sustained.  Thereupon  the 
plaintiff  was  recalled,  and  the  following 
questions  were  put  to  him  by  his  counsel, 
each  of  wbicb  was  ruled  out  by  the  court 
upon  objection  that  the  same  was  Incompe- 
tent and  a  conclusion.  "Q.  Now,  Mr.  Mark- 
ley,  you  said  in  your  former  examination 
that  from  the  time  you  commenced  to  work 
.  for  Mr.  PSpenberger  to  the  time  of  receiving 
this  telegram  that  you  were  frequently  at 
the  depot.  I  will  ask  you  If  you  saw  Wil- 
liam Clement  there?  Q.  What  was  this  man 
doing?  Q.  Do  you  know  who  the  operator 
at  Plattsmouth  was  for  the  Western  Union 
Telegraph  Company?  Q.  Did  you  see  any  one 
outside  of  Mr.  Clement  working  at  the  tel«^- 
graph  office  designated  on  or  al)Out  tbe  27th 
of  February,  1907,  and  before  and  after? 
Q.  Have  you  seen  Mr.  Clement  sending  tele- 
grams or  delivering  telegrams  from  the  office 
of  the  Western  Union  Telegraph  Company, 
the  latter  part  of  February,  1907,  at  Platts- 
mouth, Neb.?"  As  already  indicated,  nom' 
of  these  questions  were  permitted  by  the 
court  to  be  answered.  The  trial  court  erred 
in  the  first  instance  in  sustaining  objection 
to  tbe  purported  testimony  of  the  sheriff. 
That  such  testimony  involved  a  conclusion  tu 
some  extent  may  be  conceded.  But  it  was 
such  a  conclusion  as  is  usually,  if  not  neces- 
sarily, Involved  in  tbe  general  knowledge 
obtained  by  the  public  as  to  the  identity  of 
agents  of  corporations  dealing  with  tbe  pub- 
lic. Such  knowledge  Is  usually  a  matter  of 
Inference,  arising  from  the  apparent  agency, 
and  it  Is  sufficient  prima  facie  proof  of  such 
fact.  The  purported  testimony  of  the  sher- 
iff would  have  been  sufficient  in  form  to  con- 
stitute an  official  return  upon  an  original  no- 
tice. It  would  have  been  sufficient  as  a  re- 
turn In  this  case  If  It  had  been  verified  by 
affidavit  within  six  months,  as  required  by 
section  4681.  We  can  see  no  good  reason 
why  the  same  form  of  statement  could  not 
properly  be  included  in  the  form  of  direct 
testimony.  For  the  same  reason  the  ques- 
tions propounded  to  tbe  plaintiff  himself  as 
a  witness  were  proper,  and  he  should  have 
been  permitted  to  answer  them.  In  view  of 
the  then  state  of  the  record.  The  plaintiff 
bad  previously  testified  that  he  had  worked 


Digitized  by  VjOOQ  l€ 


Iowa) 


MARKLEY  v.  WESTERN  UKION  TELEGRAPH  OO. 


139 


for  three  months  within  one  block  of  defend- 
ant's office  at  Plattsmoatb.  It  was  clearly 
(-•ompetent  for  him  to  testify  on  the  subject 
ingiilred  about.  The  questions  clearly  dls- 
olosed  their  purpose,  and  their  evident  tend- 
ency was  to  prove  that  Clement  was  In 
charge  of  defendant's  office  at  Plattsmoutb. 
That  would  be  sufficient  prima  facie  proof 
of  agency,  and  It  was  entirely  immaterial 
whether  the  words  "duly  authorized"  were 
included  or  not 

2.  The  theory  urged  by  the  defendant,  and 
adopted  by  the  trial  court,  was  that  plain- 
lUTs  cause  of  action  accrued  on  December 
2S,  1906,  and  that  the  presentation  of  his 
rlalm  on  February  28,  1907,  was  too  late  to 
comply  with  the  following  provision  of  sec- 
tion 2164:  "But  no  action  for  the  recovery 
of  such  damages  shall  be  maintained  unless 
a  claim  therefor  is  presented  in  writing  to 
such  company,  officer  or  agent  thereof*  within 
4X)  days  from  time  cause  of  action  accrues." 
If  it  were  conceded  that  the  defendant  was 
negligent  as  a  matter  of  law,  in  failing  to  de' 
lirer  the  message  to  the  plaintiff  on  the  night 
of  December  28tb,  It  would  not  necessarily 
follow  that  such  negligence  on  that  date  re- 
sulted In  the  Injury  of  which  plaintiff  com- 
|)lalns.  The  plalutlfrs  claim  for  damages  is 
confined  to  mental  suffering  by  reason  of  his 
failure  to  see  his  mother  before  she  died.  It 
is  manifest  from  the  evidence  that,  if  the 
message  had  been  delivered  on  the  20th  or 
oven  on  the  30th,  the  plaintiff  could  have 
reached  his  mother's  bedside  in  time  to  have 
seen  her  in  life,  and  the  particular  injury  for 
which  he  sues  would  have  been  thus  avoided, 
notwithstanding  negligent  delay  on  the  28th 
or  20th.  Indeed,  for  aught  that  appears  In 
the  evidence,  if  the  telegram  had  been  dellv- 
•■red  a  few  hours  earlier  on  the  3l8t,  such  in- 
jury would  not  have  resulted.  We  know  of 
110  rule  that  would  forbid  the  plaintiff  from 
n-aiving  the  negligence  of  the  first  days,  and 
liasing  his  right  of  recovery  vpon  the  contin- 
uation of  negligence,  to  that  iralnt  of  time 
«Thlch  rendered  it  impoBSible  for  the  plaintiff 
to  reach  his  mother's  bedside.  Be  that  as  it 
may.  It  is  clear  that  the  mere  act  of  negli- 
gent delay  on  the  part  of  the  company  would 
not  give  rise  to  a  cause  of  action  to  the  plain- 
tiff until  such  negligent  delay  became  the 
proximate  cause  of  the  Injury  complained  of. 
Taking  the  Question  from  another  point  of 
view,  it  cannot  be  said  that  the  defendant 
was  negligent  as  a  matter  of  law  in  failing 
to  deliver  the  message  on  the  night  of  De- 
<-cmber  28tb.  At  most  It  was  a  question  of 
inised  law  and  fact  A  Jury  might  well  find 
that,  if  it  had  delivered  the  message  on  De- 
<-emt>er  29th,  it  would  not  have  been  guilty 
of  negligent  delay.  Upon  that  theory  the 
presentation  of  plaintiff's  claim  on  February 
'.r7tb  was  within  the  statutory  time.  But 
there  Is  still  a  third  view  of  the  situation, 
vrbich  is  quite  as  decisive  against  the  de- 
fendant Assuming  the  defendant  to  have 
Iteen  guilty  of  negligent  delay  in  failing  to 


make  delivery  on  Decemt)er  28th,  its  negli- 
gence was  nevertheless  a  continuing-  negli- 
gence up  to  December  Slst  Its  identity  was 
not  lost  by  Its  persistent  continuation.  It 
wW  be  noted  that  the  only  mental  suffer- 
ing for  which  the  plaintiff  claims  damages 
was  such  as  was  caused  by  his  failure  to  see 
his  mother  before  death.  For  this  particular 
injury  he  could  not  have  sued  on  December 
29tb  nor  on  December  30th,  because  on  such 
days  the  opportimity  was  still  open  to  him  to 
reach  the  bedside.  From  whatever  point  we 
view  the  case,  therefore,  we  think  the"  Jury 
could  have  found  that  plaintiff's  presentation 
of  Ills  claim  was  in  time  to  comply  with  the 
requirements  of  section  2164. 

3.  The  defendant  directs  our  attention  to 
the  provisions  of  the  contract.  Indorsed  on 
the  back  of  the  blank  form  upon  which  the 
message  was  written.  This  alleged  contract 
calls  for  a  presentation  of  the  claim  "witthn 
60  days  after  the  message  is  filed  with  the 
company  for  transmission."  It  contends  that 
this  provision  is  controlling,  and  fixes  the 
day  from  which  the  60  days  shall  be  com- 
puted. In  support  of  this  contention  it  cites 
Albers  v.  Western  Union  Telegraph  Com- 
pany, 98  Iowa,  52,  66  N.  W.  1040.  There  are 
several  reasons  why  this  contention  cannot 
be  sustained.  The  first  Is  that  the  contract 
was  not  introduced  in  evidence.  The  plain- 
tiff gave  oral  evidence  of  the  contents  of  the 
message,  and  no  reference  is  made  to  such 
contract  In  his  evidence.  Exhibit  A  is  refer- 
red to  In  the  record,  but  neither  party  offered 
it.  A  second  reason  is  that  the  plaintiff  was 
the  sendee  of  the  message,  and  brings  his  ac- 
tion in  tort,  and  not  on  contract.  This  be 
had  a  right  to  do.  See  Cowan  v.  Telegraph 
Company,  122  Iowa,  3T9,  98  N.  W.  281,  64  L. 
R.  A.  545,  101  Am.  St  Rep.  268.  In  the  Al- 
bers Case,  the  plaintiff,  as  sender,  sued  upon 
his  contract  At  the  time  that  case  was  de- 
cided, the  provision  of  section  2164,  which  we 
have  already  quoted,  was  not  in  effect  Tak- 
ing sections  2163  and  2164,  and  construing 
them  together,  they  create  a  cause  of  action 
in  favor  of  the  plaintiff,  notwithstanding 
"the  provisions  of  any  contract  to  the  con- 
trary." Under  section  2164  such  cause  of 
action  may  be  continued  in  force  by  present- 
ing a  claim  within  60  days  as  therein  provid- 
ed. To  give  effect  to  the  provision  of  the 
contract  which  is  quoted  by  defendant  would 
be  to  render  this  provision  of  the  statute 
nugatory,  and  its  enactment  quite  useless. 
It  would  also  enable  the  defendant  to  deprive 
the  plaintiff  of  a  part  of  the  statutory  time, 
by  the  same  negligent  delay  which  gives  rise 
to  his  cause  of  action,  and  which  would  keep 
plaintiff  in  ignorance  of  such  cause  of  action. 
We  think  it  was  the  Intent  of  the  Legislature 
to  limit  the  right  of  the  telegraph  company 
in  this  respect  to  the  statutory  provision,  and 
that  it  is  not  competent  for  the  defendant  to 
qualify  such  provision  to  the  detriment  of  the 
plaintiff. 

For  the  reasons  pointed  out,  the  Judgment 
below  must  be  reversed. 


Digitized  by  VjOOQ  l€ 


140 


122  NORTHWESTERi^  REPORTER. 


(lown. 


SWIFT  ft  CO.  T.  REDHEAD. 
{Supreme  Court  of   Iowa.     July  1,   1909.) 

1.  Sales    (J   21*)  — Gontbaot— Failtibx   of 

CONSIDEBATION. 

Where  plaintifF  sold  cattle  feed  for.  a  iwr- 
ticular  purpose  upon  representations  that  it 
was  suitable  for  that  purpose,  upon  which  de- 
fendant relied,  if  the  article  was  of  no  value  for 
such  purpo8e,there  was  a  failure  of  considera- 
tion. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent. 
Dig.  S  33 ;    Dec.  Dig.  f  21.»] 

2.  Sales  (g  441*)— Actions  fob  Prick— Suf- 

FICIKNCT    OF    EVIDENOB— FaILUBE    OF    COH- 
8IDGBATI0N. 

In  an  action  for  the  price  of  cattle  feed, 
evidence  held  to  sustain  a  finding  that  the  feed 
was  not  suitable  for  fattening  cattle,  as  rep- 
resented by  the  seller,  but  was  injurious  and 
worthless  for  that  purpose. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent. 
Dig.  I  1279;    Dec.  Dig.  §  441.*] 

3.  Sales  ({  131*) — Remedies  of  Seller- Ac- 
tion   FOB    PbICE  —  I^EFENSES  —  FaILX^E    OF 

Consideration- Rescission. 

Where  cattle  feed,  sold  upon  representa- 
tions that  it  would  fatten  cattle,  was  in  fact 
injurious  to  them  and  worthless  for  the  pur- 
pose sold,  the  seller  could  not  recover  for  a 
part  of  the  feed  not  used,  where  the  buyer  ad- 
vised him  that  it  was  held  subject  to  his  order. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent 
Dig.  §  328;  Dec.  Dig.  f  131.*] 

4.  Sales    ($   261*)  —  Wabbantt  —  Iuplied 
Wabba  NTT— Requisites. 

No  particular  form  of  words  is  necessary  to 
constitute  a  warranty  of  goods ;  it  only  being 
essential  that  the  parties  understood  that  there 
was  a  warranty. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent. 
Dig.  i  729;  Dec.  Dig.  {  261.*] 

5.  Sales  (8  445*)— Action  fob  Pbicb-Jubt 
Question— Wabbanty. 

In  an  action  for  the  price  of  cattle  feed, 
whether  the  seller  warranted  that  it  was  suit- 
able for  fattening  cattle  held  for  the  jury. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent. 
Dig.  §  1304;    Dec.  Dig.  S  445.*] 

6.  Sales  (|  261*)— Wabbantt- Wabbantt  of 
Suitability. 

If  defendant  purchased  cattle  feed  for  the 
purpose  of  fattening  his  cattle,  which  was 
known  to  the  seller,  who  represented  that  it 
was  suitable  for  that  purpose  upon  which  rep- 
resentation defendant  relied,  there  was  a  war- 
ranty that  the  feed  was  reasonably  fit  for  the 
purpose  contemplated. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent 
Dig.  i  732;    Dec  Dig.  g  261.*] 

7.  Sales  (§  442*)  —  Wabbanties  —  Bbeach — 
Damages. 

In  an  action  for  the  price  of  cattle  feed, 
in  which  defendant  counterclaimed  for  breach 
of  warranty  that  the  feed  would  fatten  cattle, 
defendant  could  recover  for  the  damage  natu- 
rally growing  from  the  breach  of  plaintiff's  war- 
ranty, so  that,  while  he  could  not  recover  prof- 
its anticipated  from  using  the  feed,  there  be- 
ing no  representation  as  to  the  amount  thereof, 
he  could  recover^  for  damages  caused  by  feed- 
ing the  cattle  with  the  feed  purchased,  where 
the  evidence  showed  that  they  lost  flesh  when 
fed  ui>on  it  and  normally  gained  flesh  when  fed 
on  ordinary  feed ;  the  cause  of  the  damages  be- 
ing reasonably  certain. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent 
Dig.  i  1291 ;   Dec.  Dig.  f  442.*] 


8.  Dauages  (8  6*)— Cebtaintt- Cebtaintt  as 
to  Cause. 

Where  the  cause  of  damages  is  reasonably 
certain,  recovery  thereof  will  not  be  denied 
merely  because  of  difficulty  in  ascertaining  the 
amount  of  damages. 

[Ed.  Note. — For  other  cases,  see  Damages, 
Cent  Dig.  8  6;   Dec.  Dig.  8  6.*] 

9.  Sales  (8  441*)— Actions  fob  Pbicb— Suf- 
ficiency OF  Evidence— Buyer's  Knowl- 
edge OF  Breach  of  Warranty. 

In  an  action  for  the  price  of  cattle  feed, 
where  defendant  counterclaimed  for  injuries  to 
the  cattle  and  loss  of  profits  caused  by  feeding 
them  with.it,  evidence  held  to  show  that  de- 
fendant learned  of  its  injurious  effects  on  the 
cattle  two  da^s  after  he  began  its  use,  and 
thereafter  continued  to  feed  it  with  such  knowl- 
edge. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent 
Dig.  8  1281 ;    Dec.  Dig.  $  441.*] 

10.  Damages  (8  62*)- Subjects  of  Compen- 
sation—Reduction OP  Loss — Duty  to  Re- 
duce Damage— Breach  of  Contbact. 

In  an  action  for  the  price  of  cattle  feed, 
defendant  could  not  counterclaim  for  damages 
caused  by  feeding  it  to  the  cattle  after  he  had 
fully  learned  of  its  injurious  effect,  and  that 
plaintiff  advised  defendant  to  keep  trying  it, 
and  see  if  he  could  not  get  it  up  to  the  ri^ht 
amount,  did  not  justify  defendant  in  continuing 
to  use  it,  being  merely  advised  to  experiment  on 
the  cattle  with  it. 

[Ed.  Note. — For  other  cases,  see  Damages, 
Cent  Dig.  8  124;   Dec  Dig.  8  62.*] 

11.  Evidence  (8  242*)— Admissions— Admis- 
sions BT  Agent. 

In  an  action  for  the  price  of  cattle  feed, 
in  which  defendant  counterclaimed  for  damages 
for  injury  to  the  cattle  by_  fading  it,  state- 
ments by  plaintiff's  agent,  without  investigating 
the  condition  of  the  cattle  or  examining  the 
feed,  after  defendant  had  discovered  the  in- 
jurious effects,  advising  him  to  continue  feeding 
it,  were  not  binding  on  plaintiff,  not  being  made 
in  the  performance  of  any  duty  in  the  course 
of  the  agent's  employment,  and  being  a  mere 
suggestion  that  defendant  experiment  with  the 
feed. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  8  893 ;    Dec.  Dig.  g  242.*] 

Appeal  from  District  Court,  Polk  County; 
Jesse  A.  Miller,  Judge. 

On  December  24,  1903,  the  defendant  pur- 
ctrnsed  of  plaintiff,  tbrough  its  agent,  Hugb 
Van  Pelt,  about  eight  tons  of  blood  meal  at 
the  agreed  price  of  $383.52.  The  action  was 
brought  for  this  sum.  For  answer  the  de- 
fendant alleged:  That  the  consideration  bad 
wholly  failed,  in  that  the  so-called  merchan- 
dise was  a  prepared  form  of  the  blood  of 
domestic  animals,  represented  by  the  plain- 
tiff to  be  exceedingly  valuable  as  a  food  for 
cattle,  causing  them  to  be  and  remain  healthy 
and  to  rapidly  take  on  fat  and  mature  for 
market;  that  the  same  was  a  new  product 
recently  placed  upon  the  market,  the  quali- 
ties of  which  were  unknown  to  the  defend- 
ant, and  the  plaintiff  knew  at  the  time  that  h» 
ordered  the  same  that  be  was  wholly  unfamil- 
iar therewith,  "and  it  was  distinctly  under- 
stood and  agreed  that  be  was  not  buying  the 
same  upon  his  own  knowledge,  but  upon  the 
knowledge,   representations,  and  warranties 


•For  other  cases  see  •ame  topic  and  lectlon  NUMBER  la  Dec  *  Am.  Digs.  1907  to  date,  *  Reporter  Ii>deze» 


Digitized  by  VjOOQ  l€ 


Iowa) 


SWIFT  &  CO.  V.  REDHEAD. 


Ul 


of  the  plaintiff  that  the  same  was  suitable, 
valuable,  and  profitable  for'  the  use  afore- 
fiaid;  that  the  defendant  attempted  to  make 
such  use  thereof,  carefully  following  the  di- 
rections and  Instructions  of  the  plaintiff  In 
that  behalf,  but  found,  after  giving  the  same 
«  fair  test,  that  the  same  was  not  only  whol- 
ly worthless  for  such  purpose,  but  was  a  posl- 
tlve  Injury  and  damage  to  his  cattle.  Where- 
apon  he  notified  plaintiff  of  such  facts  and 
notified  It  that  the  remainder  of  said  blood 
tneal  was  In  his  custody  subject  to  the  order 
of  the  plaintiff  and  Its  officers,  and  so  re- 
mained." By  way  of  counterclaim,  It  was 
averred:  That  plaintiff  represented  and  war- 
ranted that  said  meal  was  scientifically  pre- 
pared stock  food,  valuable  and  healthful,  and 
would  cause  feeding  cattle  to  become  health- 
ful and  remain  healthful  and  thrifty  and  ac- 
cumulate fat  much  more  rapidly  than  had 
been  possible  as  the  result  of  methods  of 
feeding  and  treatment  that  generally  prevail- 
ed up  to  the  time  of  the  invention  and  manu- 
facture of  such  blood  meal;  that  the  defend- 
ant purchased  said  meal  in  .reliance  upon  said 
representations  and  warranties  for  the  pur- 
pose of  feeding  a  herd  of  some  121  head  of 
cattle  then  being  prepared  for  the  market; 
that  plaintiff  knew  that  such  was  the  object 
of  the  purpose,  and  sold  the  same  on  said 
representations  and  warranties  with  knowl- 
edge that  defendant  was  without  Information 
and  relying  thereon;  that  defendant  in  feed- 
ing said  meal  followed  Instructions,  but  it 
caused  said  cattle  to  sicken,  suffer  from 
scours,  with  the  result  that  it  retarded  the 
acquisition  of  fat;  that  defendant  then  re- 
scinded the  contract  of  purchase;  that  the 
cattle  were  worth  $4,830  less  upon  discontin- 
uing the  feeding  sf  the  meal  than  they  would 
have  been  had  It  not  been  fed  at  all ;  and 
Judgment  was  prayed  for  $1,615.  In  reply 
plaintiff  interposed  a  general  denial  and 
averred  that  both  parties  acted  with  knowl- 
edge of  the  use  and  results  of  said  meal,  and 
there  was  no  warranty  as  alleged.  The  trial 
resulted  In  a  verdict  and  judgment  as  prayed 
.  In  the  counterclaim.  The  plaintiff  appeal^. 
Affirmed  on  condition. 

B.  F.  Taft  and  Sullivan  &  Sullivan,  for 
appellant  Crom  Bowen  and  O.  M.  Brockett, 
for  appellee. 

LADD,  J.  The  defendant  began  feeding 
140  three  year  old  steers  about  December  1, 
1903.  They  were  grade  short  horns,  polled 
Angus  and  Herefords,  taken  from  the  pasture 
in  good  condition.  He  began  feeding  them 
blood  meal  In  the  latter  part  of  the  month, 
up  to  which  time  the  evidence  tended  to  show 
they  were  thrifty  and  doing  well.  Thereaft- 
er, tfaongh  well  cared  for,  they  scoured  badly, 
and  this  continued  as  long  as  the  meal  was 
fed,  which  was  about  until  the  first  of  March, 
and  thereupon  the  scouring  ceased.  Accord- 
ing to  the  evidence,  the  cattle  did  not  in- 
crease in  weight  to  exceed  75  to  100  pounds 
•each  during  the  60  days  they  were  given  the 


blood  meal ;  whereas,  without  such  food,  like 
cattle  ordinarily  Increase  on  full  feed  from 
120  to  160  pounds  a  head  In  that  time.  It 
was  also  made  to  appear  that,  as  such  cattle 
fattened,  they  increase  in  value  per  pound. 
On  this  showing,  in  connection  with  other 
evidence,  which  will  be  referred  to  farther 
on,  defendant  asserted:  (1)  That  the  blood 
meal  bad  proven  to  be  utterly  valueless,  and 
therefore  the  consideration  wholly  failed; 
and  <2)  that  he  was  entitled  to  recover  the 
damages  caused  by  feeding  the  same,  measur- 
ed as  difference  in  the  market  value  of  the 
cattle  at  the  end  of  60  days'  feeding  thereof 
and  such  value  of  the  cattle  had  such  food 
not  been  given  them.  The  Jury  might  have 
found:  That  at  that  time  "blood  meal"  was 
a  comparatively  recent '  preparation ;  that, 
though  defendant  knew  of  It  in  a  general 
way,  he  had  never  used  it  and  bought  It  to 
feed  the  "bunch"  of  cattle  he  then  had  on 
the  recommendation  of  the  plaintiff's  agent; 
that  the  agent  in  selling  it  so  luiew  and  rep- 
resented that  it  was  a  valuable  food  for  cat- 
tle and  would  cause  them  to  continue  healthy 
and  rapidly  take  on  fat  As  the  sale  was 
made  for  a  specific  purpose,  on  the  assurance 
of  the  seller  that  the  commodity  with  which 
the  purchaser  was  unfamiliar,  as  was  well 
known  to  the  seller,  was  suitable  for  the  pur- 
pose for  which  sold,  and  the  purchaser  in 
buying  relied  thereon,  it  goes  without  saying 
that  unless  the  article  was  of  some  value  for 
such  use  there  was  a  failure  of  consideration. 
From  the  evidence  adduced,  the  jury  might 
have  found  not  only  that  the  "batch"  of 
"blood  meal"  shipped  to  defendant  was  not 
suitable  for  cattle  food,  but  that  it  was  in- 
jurious to  them,  and  therefore  worthless  for 
the  purpose  sold.  This  being  so,  the  consid- 
eration as  to  that  fed  failed,  and  no  recov- 
ery can  be  had  for  that  on  band,  as  the  jury 
also  must  have  found  that  defendant  advised 
plaintiff  that  the  portion  not  fed  was  retain- 
ed subject  to  its  order.  The  second  instruc- 
tion was  to  this  effect  and  we  do  not  under- 
stand counsel  in  their  brief  to  challenge  its 
correctness.  If  anything  said  under  the 
heading  "points  in  error"  can  be  so  construed, 
the  point  was  not  argued  nor  authorities  cit- 
ed thereon. 

2.  The  counterclaim  for  damages  was  bas- 
ed on  allegations  of  an  express  warranty, 
and  the  sufficiency  of  the  evidence  to  sustain, 
the  verdict  finding  there  was  such  a  war- 
ranty is  challenged.  No  particular  form  of 
words  is  necessarily  to  be  employed  In  order 
to  constitute  a  warranty.  All  essential  Is 
that  such  was  the  understanding  of  the  par- 
ties. Here  the  evidence  of  defendant  was 
that  the  agent  recommended  the  blood  meal 
very  highly,  and  said  that  it  was  very  fine 
food  for  cattle,  that  many  were  using  it,  that 
It  was  valuable  in  preventing  scours  in 
calves,  that  it  was  a  great  deal  better  than 
cotton  seed  meal  or  oil  meal  and  would  pro- 
duce fiesh  much  quicker,  that  he  had  used  It 
himself  In  feeding,  that  it  would  cause  cattle 


Digitized  by  VjOOQ  l€ 


142 


122  NORTHWESTERN  REPORXEB. 


(Iowa 


to  take  OQ  fat.  much  more  rapidly  and  keep 
them  In  good  condition,  that  lie  figured  out 
"how  much  quicker  they  would  be  ready  for 
market  and  bow  much  more  they  would 
sain."  The  agent  denied  having  stated  what 
offect  the  meal  would  have  on  cattle,  or  hav- 
ing compared  it  with  cotton  seed  or  Unseed 
oil ;  but  he  admitted  that  he  knew  defendant 
was  contemplating  the  purchase  of  cotton 
seed  meal,  that  he  pointed  out  the  excess  of 
protein  in  blood  meal  over  cotton  seed  meal 
and  induced  him  to  purchase  the  blood  meal, 
that  he  said  blood  meal  was  a  preventive 
nud  cure  for  scours,  and  that'  he  had  prac- 
tical knowledge  on  the  subject.  Quoting 
from  his  testimony:  "I  showed  him  where 
the  Iowa  Experiment  Station  had  fed  differ- 
ent bunches  of  steers  with  corn  alone  and 
with  different  commercial  food,  and  In  show- 
ing blm  this  I  showed  him  that  blood  meal 
produced  more  profit  than  any  other  food  fed 
In  conjunction  with  grain,  and  further  show- 
ed him  Swift  &  Co.  guaranteed  87  per  cent,  of 
protein,  which  was  a  great  deal  larger  per 
cent  than  any  other  food  stuff  had,  and  that 
protein  was  evidently  what  he  was  wishing  to 
buy  when  he  bought  cotton  seed  meal  which 
contained  37  per  c&it,  and  blood  meal  con- 
tained 87  per  cent,  and  the  difference  on  the 
total  amount  of  protein  contained  in  a  ton  of 
blood  meal  and  a  ton  of  cotton  seed  meal 
made  blood  meal  the  cheaper  source  of  pro- 
tein at  the  price  at  which  I  was  selling  it  to 
blm  to  be  used  In  connection  with  their  food 
to  produce  and  maintain  a  healthful  condi- 
tion and  facilitate  the  taking  on  of  fat  and 
to  balance  up  the  rations.  Q.  Did  yon  tell 
him  that  the  manufacturers  represented  tnis 
food  contained  this  protein  in  this  proportion 
and  In  such  condition  as  that  it  could  be  used 
In  connection  with  the  other  food  as  to  get 
the  proper  balance  or  proportion  of  food  In- 
t;redients_  and  facilitate  the  maturity  of  the 
cattle  for  the  market?  A.  When  fed  with 
corn.  Q.  Did  you  represent  to  him  as  your 
claim  and  the  claim  of  the  manufacturers 
that  It  was  profitable  to  use  this  food  in  con- 
nection with  the  corn  and  other  cattle  foods, 
l)ecanse  so  used  it  would  cause  the  cattle  to 
Ket  fatter  in  the  same  length  of  time  or  else 
fatten  quicker  for  the  market?  A.  From 
what  I  said  to  him,  he  naturally  would  draw 
that  conclusion.  Q.  That  was  one  way  to 
get  him  to  buy,  was  it  not?    A.  Certainly." 

When  to  this  evidence  is  added  the  circum- 
stance that  the  agent  was  aware  that  de- 
fendant was  without  experience  in  the  use 
of  the  meal,  and  was  relying  on  bis  repre- 
sentations in  making  the  purchase,  It  be- 
comes evident  that  there  was  enough  to 
carry  the  issue  to  the  Jury.  Hughes  v.  Fun- 
ston,  23  Iowa,  257;  Tewkesbury  v.  Bennett, 
31  Iowa,  83;  Conklin  v.  Standard  Oil  Co., 
138  Iowa,  596,  IIC  N.  W.  822.  The  Jury 
might  well  have  found  that  the  purchase  of 
I  he  blood  meal  for  a  particular  use  known  to 
ihe  seller,  and  for  which  the  latter  assured 
tbe  buyer  It  was  suitable,  and  that  the  buy- 


er relied  tber^n,  and,  U  so,  this  amonnted 
to  a  warranty  that  the  article  In  questloti 
was  reasonably  fit  for  tbe  nse  both  contem- 
plated. SO  Am.  &  Eng.  Ency.  of  Law,  144. 
Practically,  this  is  as  far  as  a  warranty  of 
merchandise  ordinarily  goes,  and,  aside  fron> 
estimating  the  advantages  of  the  commodity 
in  detail.  Is  as  far  as  the  plaintiff's  represen- 
tative went  In  this  case.  Tbe  object  to  be  at- 
tained was  the  fattening  of  the  cattle.  The 
agent  represented  thot  the  blood  meal  wohM 
accelerate  the  fattening,  but  did  not  Indi- 
cate bow  much.  So  that  what  be  saia 
amounted  to  no  more  than  a  warranty  that 
It  was  suitable  for  that  purpose.  If  It  was 
not  suitable,  and  we  are  speaking  of  the 
blood  meal  actually  delivered,  and  not  of  tbe 
preparation  generally,  then  his  principal  is 
responsible  for  the  consequences  naturally 
flowing  from  a  breach  of  the  contract  But 
three  of  these  can  be  conceived  of,  namely, 
the  meal  must  have  improved  their  condi- 
tion, have  Injured  them,  or  have  produced  no 
effect  whatever;  and  surely  these  are  conse- 
quences which  the  parties  must  have  con- 
templated in  making  tbe  bargain.  In  other 
words,  the  object  of  the  contract  was  that 
tbe  meal  sold  produce  a  particular  effect. 
I.  e.,  tbe  laying  on  of  fat  by  the  cattle  faster 
than  they  would  without  it  and  thereby  en- 
hance the  defendant's  profits  from  feeding. 
Of  course,  defendant  could  not  recover  for 
loss  of  the  anticipated  increase  In  profits,  for 
there  was  no  assurance  as  to  the  amount, 
and  he  Is  making  no  claim  therefor.  What 
he  is  demanding  Is  the  loss  of  profits  which 
would  have  accrued  from  feeding  In  the  or- 
dinary way,  but  for  the  consumption  of  the 
blood  meal ;  that  is,  for  tbe  Injury  occasion- 
ed by  feeding  an  article  not  as  warranted. 
Appellant  contends  that  the  damages.  If  any. 
are  too  uncertain  and  speculative  for  adju- 
dication. Such  Is  not  the  holding  of  the 
courts  where  Injury  has  resulted  from  the 
use  of  an  article  warranted  to  be  beneficial. 
As  said,  the  claim  is  not  for  profits  lost,  but 
for  damages  due  to  the  interference  with 
the  growth  of  the  animals.  That  they  In 
fact  Increased  in  value  when  on  full  feed  Is 
not  conclusive  that  eating  tbe  meal  did  not 
cause  the  inJury*complaIned  of. 

The  law  does  not  preclude  the  recovery  of 
profits  lost  as  the  result  of  a  breach  of  a 
contract  having  these  as  its  object.  Hlchorn 
v.  Bradley,  117  Iowa,  130,  90  N.  W.  592;  Rule 
v.  McGregor,  117  Iowa,  419,  90  N.  W.  811. 
See  Creamery  Package  Mfg.  Co.  v.  Benton  Co. 
Creamery,  120  Iowa,  584,  95  N.  W.  188.  Nor 
does  It  deny  to  one  who  has  purchased  an  ar- 
ticle for  a  specific  purpose  damages  natural- 
ly consequent  upon  It  proving  not  to  be  as 
agreed.  Thus  in  Kent  v.  Halliday,  23  R.  I. 
182,  49  Atl.  700,  the  petition  alleged  a  war- 
ranty In  the  sale  of  parls  green  that  it  was 
pure  and  would  kill  potato  bugs,  that  upon 
proper  application  It  proved  Impure  and  not 
sufficiently  strong  to  kill  them,  and  that  in 
consequence  thereof  plaintiff's  potato  crop 


Digitized  by  VjOOQ  l€ 


Iowa) 


SWIFT  &  CO.  V.  REDHEAD. 


143 


w«s  destroyed.  The  court  held  that  a  good 
cause  of  action  was  stated;  It  being  a  mat- 
ter for  determination  on  the  trial  whether 
tbe  destmctlon  of  the  crop  was  the  natural 
and  proximate  consequence  of  the  breach  of 
warranty.  White  v.  Miller,  71  N.  Y.  118,  27 
A.m.  Rep.  13,  was  an  action  on  a  warranty 
tluit  a  Quantity  of  cabbage  seed  sold  was 
pure,  and,  as  the  seed  turned  out  to  be  im- 
pure, loss  of  probable  profits  was  allowed; 
the  court  saying:  "Gains  prevented,  as  well 
as  losses  sustained,  may  be  recovered  as 
damages  for  a  breach  of  contract  where  they 
can  be  rendered  reasonably  certain  by  evi- 
dence, and  have  naturally  resulted  from  the 
breach.  •  •  •  The- character  of  the  sea- 
son, whether  favorable  or  onfavorable  for 
production,  the  manner  In  which  the  plants 
set  were  cultivated,  the  condition  of  the 
ground,  the  results  observed  In  the  same  vi- 
cinity where  cabbages  were  planted  under 
similar  circumstances,  the  market  value  of 
Bristol  cabbages  when  the  crop  matured,  the 
value  of  the  crop  raised  from  defective 
seeds,  these,  and  other  circumstances,  may 
be  shown  to  aid  the  jury  and  from  which 
they  can  ascertain  approximately  the  extent 
of  the  damages  resulting  from  the  loss  of  a 
crop  of  a  particular  kind."  The  decision  no 
more  than  confirms  Fasslnger  v.  Thorbum,  34 
X.  Y.  634,  90  Am.  Dec.  753,  where,  In  an  ac- 
tion on  a  breach  of  warranty  on  sale  of  Bris- 
tol cabbage  seed,  complainant  was  allowed 
to  recover  as  damages  the  difference  between 
a  crop  raised  from  the  defective  seed  and  a 
crop  of  Bristol  cabbage  such  as  would  ordi- 
narily have  been  produced  in  the  year  In 
wbich  the  seed  was  to  be  sown.  A  like  hold- 
ing based  on  a  sale  of  seed  barley  was  had 
in  Randall  v.  Roper,  E.  B.  &  E.  84.  See,  al- 
so, Wolcott  v.  Mount,  36  N.  J.  Law,  262,  13 
.\m.  Rep.  438;  Ferris  v.  Comptock,  33  Conn. 
.j13;  Swain  v.  Schieftelln,  134  N.  Y.  471,  31 
N.  E.  1025,  18  Lu  R.  A.  383.  In  Jones  v. 
fieorge,  56  T^z-  149,  42  Am.  Rep.  6S9,  the 
sale  was  of  parts  green  to  kill  cotton  worms, 
:md  the  court,  though  holding  that  recovery 
might  be  had  on  showing  of  breach  of  implied 
warranty  for  cost  In  purchase  and  appllcn 
tlon  to  cotton  anc  loss  of  time  and  all  other 
damages  resulting  as  a  natural  consequence, 
bat  that  what  the  cotton  crop  would  have 
been  bad  the  worms  been  destroyed  was 
purdy  conjectural  and  not  to  be  taken  into 
account. 

Xo  consideration  was  given  to  the  fore- 
going and  other  authorities,  however,  and 
we- need  not  stop  to  determine  whether,  in 
view  of  the  circumstances  of  the  case  the 
conclusion  is  to  be  approved.  It  Is  very 
evident  that  a  showing  of  damages  to  stock 
due  to  a  particular  feed  is  not  involved  in 
tbe  uncertainties  attendant  upon  the  raising 
of  a  crop  of  barley,  cabbage,  potatoes,  or 
cotton.  The  testimony  of  what  cattle  like 
those  of  defendant  on  full  feed  ordinarily 
would  increase  was  undisputed,  as  was  the 
evidence  of  what  they  in  fact  Increased. 


It  was  shown  that  they  bad  not  scoured 
before  eating  the  blood  meal,  that  they  did 
scour  during  the  entire  time  It  was  fed  to 
them,  and  that  they  ceased  scouring  when 
it  was  finally  taken  from  them.  Tbe  care 
and  feed  otherwise  was  not  changed,  so 
that  the  inference  fairly  to  be  drawn  was 
that  their  condition  was  caused  by  this  feed, 
and  that  it  had  interfered  with  their  growth 
to  the  extent  indicated.  As  the  cause  was 
reasonably  certain,  the  mere  diflJculty  in 
ascertaining  or  measuring  the  damage  will 
not  Justify  the  denial  of  the  recovery  thereof. 
3.  Conceding,  however,  that  defendant 
might  recover  on  proof  of  injury  to  the  cat- 
tle, the  evidence  conclusively  showed  that 
he  was  aware  of  tbe  Injurious  effect  due 
to  eating  the  blood  meal  within  two  days 
after  he  began  feeding  it.  He  testified  that 
as  long  as  he  fed  it  the  cattle  scoured. 
and  that  they  "did  not  seem  to  do  any  good 
at  all,"  that  he  kept  "thinking  Jt  would  work 
all  right,  wanted  to  use  the  food  if  be 
possibly  could,  and  thereafter  kept  on  trj- 
ing  it,  giving  them  little,  and  increasing 
it  a  little,  trying  in  every  way  to  get  them 
to  take  the  food  so  that  it  would  do  them 
some  good."  He  testified  further:  "Just 
as  soon  as  tbe  cattle*  got  the  blood  food, 
they  commenced  to  scour.  I  should  say 
within  two  days  afterwards.  I  knew  that 
something  was  acting  bad  with  them  and 
attributed  It  to  the  blood  meal.  We  were 
only  feeding  them  com  and  hay  at  this 
time.  As  I  said,  we  noticed  the  bad  effect 
within  two  days;  but  we  did  not  lessen  or 
stop  the  use  of  the  meal.  In  fact,  we  kept 
increasing  it  gradually.  We  could  not  get 
much  relief  In  Its  effect,  as  they  were  Just 
as  bad  on  the  start  as  they  were  later. 
It  continued  very  bad,  but  I  was  trying  the 
meal.  •  •  •  UnOl  about  the  23d  of 
MarjEh,  we  used  tbe  blood  meal,  increasing 
and  decreasing  it  off  and  on.  It  acted  bad- 
ly all  the  time.  The  only  deleterious  effect 
on  the  cattle  shown  was  causing  them  to 
scour."  This  Is  that  for  which  agent  of 
plaintiff  had  expressly  recommended  tbe 
blood  meal  to  be  a  preventative.  Witliin 
a  few  days  after  receiving  it,  tbe  defendant 
was  as  fully  advised  as  be  was  three  months 
thereafter  that  tbe  blood  meal  had  precise- 
ly the  opposite  effect  Having  information 
that  the  commodity  was  not  as  recommend- 
ed, he  must  be  held  to  have  conducted  the 
series  of  experiments  following  at  his  own 
risk.  Surely  the  seller  cannot  be  held  for 
damages  flowing  from  the  experiments  of 
the  feeder  after  he  has  become  fully  aware 
of  the  breach  of  the  warranty.  Doubt- 
less, defendant  was  Justified  in  continuing 
the  feed  for  a  short  time  reasonably  suffi- 
cient to  ascertain  the  result  of  its  use;  but, 
after  this  was  definitely  known,  the  seller 
ought  not  to  be  held  responsible  for  any 
damage  caused  by  feeding  blood  meal.  The 
record  affords  no  basis  for  a  finding  of  dam- 
ages, if  any,  which  resulted  from  using  the 


Digitized  by  VjOOQ  l€ 


144 


122  NORTHWESTERN  REPORTEa 


(Iowa 


meal  until  the  defendant  knew  of  Its  effect 
on  tbe  cattle;  the  only  proof  bearing  on  the 
measure  of  damages  Indicating  the  differ- 
ence In  the  value  of  the  cattle  about  March 
23d  as  they  were  and  as  they  would  have 
been  but  for  the  use  of  the  meal.  At  the 
most,  under  the  circumstances  disclosed, 
defendant  was  entitled  to  no  more  than  nom- 
inal damages. 

4.  E<vldeuce  of  declarations  by  plaintiff's 
agent,  made  seyeral  weeks  after  the  sale 
was  effected,  was -received  over  objection. 
Upon  defendant's  complaint  that  tbe  blood 
meal  caused  the  cattle  to  scour,  the  agent 
appears  to  have  said  that  something  must 
be  wrong  with  It,  but  advised  defendant 
to  continue  feeding  It.  In  an  Instruction 
tbe  court  limited  the  consideration  of  this 
evidence  to  "determining  the  question  as 
to  what  time  the  defendant,  acting  as  a 
reasonably  prudent  man,  should  have  dis- 
continued the  use  of  said  blood  meal  after 
he  ascertained  how  It  affected  the  cattle." 
What  the  agent  said  was  not  binding  on 
the  plaintiff,  for  he  was  not  then  engaged 
in  the  performance  of  any  duty  within  the 
scope  of  his  employment.  Phelps  v.  James, 
86  Iowa,  398,  63  N.  W.  274,  41  Am.  St  Rep. 
497;  Sweetland  v.  Ttel.  Co.,  27  Iowa,  433, 
1  Am.  Rep.  285;  Metropolitan  Bank  v.  Nat 
Bank,  104  Iowa,  682,  74  N.  W.  26.  It  Is  in- 
sisted, however,  that,  as  bearing  on  the  de- 
fendant's conduct,  what  others  might  have 
said  to  him  would  have  a  material  bearing 
on  whether  he  acted  prudently  In  continuing 
to  feed  the  meal.  Had  the  agent  examined 
tbe  meal,  or  had  he  Investigated  the  condi- 
tion of  the  cattle  and  given  an  opinion  based 
on  information,  the  case  might  have  been 
different;  but  he  bad  done  neither,  and, 
as  he  recognized  the  bad  effects  of  the  meal, 
his  advice  amounted  to  nothing  else  than 
suggesting  to  defendant  that  he  experiment 
with  the  food.  Bis  advice  to  "keep  trying 
it,"  and  see  if  he  could  "get  them  up  to  the 
right  amount,"  furnished  no  Justification  for 
defendant  to  continue  in  the  use  of  the 
blood  meal  two  or  three  months  after  he 
was  fully  aw;are  of  its  injurious  effects.  Aa 
the  advice  of  the  agent  was  that  defendant 
conduct  an  experiment,  and  not  that  -  the 
meal  was  good,  or  that  the  cattle  were  like- 
ly, In  becoming  accustomed  to  it  to  do  as 
had  been  assured  in  making  the  sale,  evi- 
dence thereof  was  not  admissible  for  the 
purpose  mentioned  in  the  instruction  or  any 
other. 

5.  Much  Is  said  in  the  argument  of  appel- 
lant concerning  the  general  character  of 
blood  meal.  We  are  not  concerned  In  this 
case  as  to  whether,  as  an  article  of  food 
for  animals,  It  is  valuable  or  otherwise. 
Plaintiff  was  bound  to  furnish  the  commodi- 
ty in  compliance  with  the  expressed  war- 
ranty, if  such  there  was,  regardless  of  the 
character  of  the  preparation  generally,  and 


this,  aa  tbe  evidence  tended  to  show,  it  did 
not  do. 

Other  matters  argued,  in  view  of  our  con- 
clusion, need  not  be  considered. 

The  result  is  that  the  finding  that  tbe  con- 
sideration failed  is  sustained  by  tbe  evi- 
dence, and  that  the  verdict  in  so  far  as 
based  on  the  counterclaim.  Is  not  so  sustain- 
ed. If  defendant  shall  elect  to  file  a  re- 
mittitur of  the  Judgment  In  his  favor  in 
excess  of  nominal  damages  of  $1  within  30 
days  after  tbe  filing  of  this  opinion,  tbe 
Judgment  will  be  affirmed  with  one-half  of 
the  costs  taxed  to  each  party;  otherwise 
the  Judgment  will  be  reversed. 

Affirmed  on  condition. 


COOPER  et  al.  v.  BROWN  (two  cases). 

COOPER  V.  BROWN  et  aL 

(Snpreme  Court  of  Iowa.     July  2,  1909.) 

1.  Tenancy  in  Common  (§  29*)— Repairs  and 
lupbovements— contbibution. 

At  common  law,  one  tenant  in  common 
could  not  enforce  contribution  from  a  co-ten< 
ant  for  expenses  incurred  for  repairs,  as  dis- 
tinguished from  improvements,  incurred  with- 
out such  co-tenant's  consent. 

[Ed.  Note.— For  other  cases,  see  Tenancy  in 
Common,  Cent  Dig.  t|  89,  90,  92 ;  Dec  Dig.  S 
29.*] 

2.  Tenancy  in   Coukon  (J  36*)— Refaibs — 
Contribution. 

The  remedy  at  common  law  against  a  co- 
tenant  refusing  to  unite  in  making  necessary 
repairs  to  the  common  property  was  not  in 
assumpsit,  but  bv  writ  de  reparatione  facienda. 
sued  out  before  tne  repairs  were  made.  In  which 
proceeding  an  appropriate  order  was  entered, 
requiring  them  to  be  made  at  the  expense  of 
all  the  tenants,  each  in  his  proper  j>roportion. 

[Ed.  Note.— For  other  cases,  see  Tenancy  in 
Common,  Dec.  Dig.  S  36.*] 

3.  Tenancy  in  Comicon  (J  84*)— Rxpaibs— 

ESTOFFEI.. 

A  tenant  in  common  is  not  estopped  to 
deny  liability  for  repairs  by  liis  mere  failure 
to  object  thereto,  where  the  co-tenant  proceeds 
to  make  them  without  notice  or  demand  npon 
him  to  unite  therein.  , 

[EM.  Note.— For  other  cases,  see  Tenancy  in 
Common,  Dec  Dig.  {  34.*] 

4.  Tenancy  in  Common  ({  29*)— Repaibs — 
Notice  to  Co-Tenant. 

That  one  co-tenant  of  water  power,  con- 
sisting of  a  dam,  etc.,  which  had  been  partly 
wash^  out,  stated  to  another  co-tenant  that,  ' 
"We  are  going  to  have  a  meeting  in  our  office 
to  make  arrangements  about  rebuilding  tbe 
dam,"  referring  to  the  speaker's  office,  did  not 
constitute  a  request  or  demand  that  the  other 
co-tenant  join  in  making  repairs,  or  notice  that, 
on  her  failure  to  do  so,  the  other'  co-tenants 
would  make  them. 

[Ed.  Note.— For  other  cases,  see  Tenancy  in 
Common,  Cent  Dig.  $S  89,  90,  92 ;  Dec.  Dig.  i 
29.*] 

5.  Tenancy  in  Common  (J  29*)— Bepaibs— 
Mechanic's  Lien. 

One  tenant  in  common  may  not  alone  pro- 
ceed to  repair  or  improve  the  common  prop- 
erty, and  have  the  benefit  of  the  statutory  me- 
chanic's lien  therefor. 

[Ed.  Note.— For  other  cases,  see  Tenancy  in 
Common,  Dec  Dig.  8  29.*] 


•For  other  case*  see  same  toplo  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  data,  *  Reporter  Indexes 


Digitized  by  LjOOQ  l€ 


Iowa) 


COOPER  V.  BROWN. 


145 


6.  Tkrahct  Uf   CovvoN   (I  S0»)  —  Incum- 

BKAirCKB. 

It  ia  no  more  the  dn'ty  of  one  tenant  in 
common  than  It  is  of  another  to  protect  the 
eommon  ettate  acainat  liens  and  incumbrance* 
bj  which  the  title  may  be  lost 

[EZd.  Note.— For  other  cases,  see  Tenancy  in 
ComiAon,  Cent  Die-  H  86>  86,  98,  99;  Pec 
Dig.  f  30.*] 

7.  Tkkahct  in   Comxor   (f  30*)  —  Inouif- 
BBAHCBS— Taxes. 

A  tenant  in  common  cannot  oust  hla  co- 
tenants  by  acqairing  a  tax  title  to  the  prop- 
erty, and  bis  payment  or  diBcharge  of  any  lien 
or  claim  thereon  operates  for  the  benefit  of 
all,  though  on  partition  his  claim  for  reim- 
bursement will  ordinarily  be  recognized. 

[E}d.  Note.— For  other  cases,  see  Tenancy  In 
Common,  Cent  Dig.  H  9S,  96;    Dec  Dig.  i 

&  JuDOMBirr  ({  726*)— Res  Jttdioata. 

A  final  adjudication  is  conclusive,  not  only 
on  every  matter  in  issue,  but  also  on  all  other 
matters  or  questions  necessarily  involved  there- 
in. 

[EM.  Note.— For  other  caaes,  see  Judgment 
Cent  Dig.  S  1256;    Dec  Dig.  i  725.*] 

9.  Pabtitiow  (§  113»)— Appsait-Beview. 

In  an  action  to  partition  a  water  power 
consisting  of  a  dam,  etc.,  the  court  entered  a 
decree  confirming  the  rights  of  the  respective 
parties  in  the  property,  decreeing  that  each  was 
liable  to  contribute  his  proportionate  part  of 
the  expense  of  maintaining  the  property;  that 
plaintiff  was  entitled  to  partition  so  that  each 
party  should  receive  his  proper  share  of  the 
water  power.  On  appeal  the  decree  was  re- 
▼eraed,  and  the  canae  remanded  for  a  decree 
for  the  sale  of  the  property.  Pending  the  ap- 
peal, part  of  the  dam  was  washed  out,  and 
thereupon,  without  the  consent  of  defendant 
plaintib  repaired  the  dam,  and  thereafter 
brought  an  action  against  defendant  for  con- 
tribution. Heldf  that  the  rights  of  the  parties 
were  to  be  considered,  as  they  would  have  been 
bad  the  trial  court  entered  a  proper  decree  or- 
dering a  sale  of  the  piopertjr,  and  hence  that 
the  matters  involved  came  within  the  doctrine 
of  res  judicata,  and  plaintiffs  were  not  en- 
titled to  recover. 

[Ed.  Note.— For  other  cases,  see  Partition, 
Dec  Dig.  I  113.*] 

Appeals  from  District  Court,  Linn  County; 
F.  O.  Ellison,  Judge. 

The  nature  of  the  controversy  and  the  ma- 
terial facts  are  stated  In  the  opinion.  Re- 
versed. 

See,  also,  98  Iowa,  444,  67  N.  W.  378. 

Dawley  &  Wheeler,  for  appellants.  J.  H. 
Preston  and  Jamison  &  Smyth,  for  appellees. 


WBATEB,  J.  More  than  20  years  ago  Su- 
san Brown  and  her  son,  N.  B.  Brown,  each 
being  part  owner  of  a  mllldam  and  water 
power  at  Cedar  Rapids,  Iowa,  In  which  prop- 
erty the  present  plaintiffs  also  owned  frac- 
tional Interests,  commenced  an  action  In  equi- 
ty for  partition  thereof.  On  August  27, 18S9, 
an  Interlocutory  decree  was  entered  fixing 
their  respective  shares.  These  shares,  so  far 
as  the  present  controversy  Is  concerned,  may 
be  stated  to  have  been  as  follows:  Susan 
Brown,  •»/•«;  N.  E.  Brown,  »/n;  W.  S. 
Cooper,  V«« ;  <u>d  the  Anchor  Mill  Company, 


i/et-  Said  Interlocutory  decree  also  recites 
that  the  several  parties  are.  In  the  same 
proportion,  liable  to  contribute,  erect,  and 
maintain  the  property  In  good  condition.  It 
was  also'  provided  that  the  water  power  and 
property  should  be  so  partitioned  and  ad- 
measured that  each  owner  should  receive  his 
proper  share,  and  no  more,  of  the  water  and 
power,  and  referees  were  appointed  to  set 
apart  the  respective  shares  and  Interests  of 
the  several  owners.  These  referees  reported 
that  there  was  no  practical  scheme  or  plan 
upon  which  an  actual  partition  In  kind  could 
be  accomplished,  and  they  advised  a  sale  of 
the  property,  and  partition  of  the  proceeds. 
Cooper  and  the  Anchor  Mill  Company  object- 
ed to  the  report  of  the  referees,  and  moved  to 
set  it  aside,  while  the  Browns  asked  Its  con- 
firmation, and  a  decree  according  thereto. 
The  district  court  sustained  the  'objections, 
and  set  aside  the  report,  and  other  referees 
were  commissioned  to  make  the  partition. 
They  reported  a  plan  therefor  which  requir- 
ed the  erection  of  adjustable  weirs,  the  re- 
pair of  the  dam,  an  increase  in  its  height, 
and  the  -employment  of  an  Inspector,  who 
should  see  that  the  weirs  were  kept  In  proper 
adjustment  and  operation.  The  objections  of 
the  Browns  to  this  report  being  overruled,  it 
was  confirmed,  and  an  order  entered  for  mak- 
ing the  repairs  and  changes  suggested.  On 
appeal  to  this  court  this  judgment  was  re- 
versed, with  the  conclusion  that  the  partition 
"must  be  accomplished  by  a  sale  rather  than 
a  division  of  the  estate."  Brown  v.  Cooper, 
98  Iowa.  444,  67  N.  W.  378,  S3  U  R.  A.  61, 
60  Am.  St  Rep.  190.  On  March  4,  1894,  and 
while  the  foregoing  appeal  was  still  pending 
and  undetermined,  a  section  of  the  dam 
about  152  feet  In  length,  In  the  middle  of  the 
river,  was  washed  out,  and  an  additional  sec- 
tion of  100  feet  was  so  loosened  and  Injured 
that  to  restore  the  property  to  its  former 
condition  required  a  rebuilding  of  252  feet 
of  the  structure.  Three  days  later  Susan 
Brown  conveyed  her  Interest  In  the  property 
to  Mary  L.  Brown,  wife  of  N.  B.  Brown,  by 
warranty  deed,  but  this  conveyance  was  not 
recorded  until  the  year  1899.  On  May  3, 
1894,  still  pending  the  appeal  aforesaid,  Coop- 
er and  the  Anchor  Mill  Company  made  appli- 
cation to  the  district  court  in  the  partition 
proceedings,  reciting  that  the  dam  had  been 
so  washed  away  that  the  water  power  could 
not  be  utilized,  and  asked  an  order  directing 
the  referees  to  rebuild  or  replace  the  section 
of  the  dam  which  bad  been  destroyed,  and 
that  the  expense  thus  Incurred  be  taxed  as 
costs  in  the  case,  and  paid  by.  the  several 
owners  of  the  property  in  proportion  to  their 
respective  Interests.  The  Browns  resisted 
the  application,  but  their  objections  were 
overruled,  and  the  order  entered  as  prayed. 
While  It  does  not  clearly  appear  from  the 
record.  It  is  Inferrable  at  least  that  an  ap- 
peal was  taken  from  this  order,  and  that  its 


•For  otfcar  cues  Ma  isma  toplo  and  aectlon  NUMBER  In  Deo.  ft  Am.  Dlft.  1907  to  data,  ft  Raporter  Indexes 
122  N.W.— 10 


Digitized  by  VjOOQ  IC 


146 


122  XOUXHWESTORN  REPORTER. 


(Iowa 


reversal  is  involved  in  tbe  opinion  ot  Brown 
V.  Cooper,  supra.  It  is  not  specifically  dis- 
cussed in  tlie  opinion,  but  the  statement  of 
the  case  there  made  recites  that  an  appeal 
was  taken  from  the  decree  or  order  for  parti- 
tion in  kind,  "and  from  a  still  farther  order 
liirecting  certain  repairs  and  improvemento 
to  lie  made"  (which  further  order  we  assume 
to  be  the  one  we  are  here  discussing),  and 
as  the  reversal  of  the  Judgment  of  the  district 
court  is  ordered  In  general  terms,  it  works  a 
reversal  of  the  order  or  judgment  for  a  res- 
toration of  the  dam  by  the  referees  at  the 
expense  of  all  the  parties.  But  plaintiffs 
herein  are  claiming  no  right  or  benefit  under 
said  order,  and  the  question  of  its  reversal  is 
perhaps  not  very  material.  After  the  cause 
was  remanded  from  this  court  to  the  district 
court,  a  decree  was  entered  providing  for  the 
sale  of  the  property  and  division  of  the  pro- 
ceeds; but,  so  far  as  appears  from  the  rec- 
ord, no  sale  bad  been  made  at  the  date  of  tbe 
commencement  of  the  present  actions. 

On  September  22,  1898,  the  plaintiffs  here- 
in instituted  separate  actions  at  law  against 
Susan  Brown  and  N.  B.  Brown,  alleging  in 
each  tbe  washing  away  of  tbe  mllldam  as 
aforesaid,  that  defendants  refused  or  neg- 
lected to  restore  the  same,  as  was  necessary 
in  order  to  have  any  valuable  use  of  the  prop- 
erty, and  that  plaintiffs  had  thereby  been 
compelled  to  furnish  the  materials  and  do 
I  he  work  at  their  own  expense,  wherefore 
they  ask  a  recovery  from  tbe  defendants  sev- 
erally in  the  amount  proportioned  to  their 
respective  interests  In  the  title.  The  amount 
claimed  against  Susan  Brown  is  $3,551.11, 
with  interest  from  October  1,  1894,  and  of 
.v.  E.  Brown  $124.60,  with  like  Interest.  On 
.January  8,  1902,  these  actions  being  pending, 
tbe  plaintiff  W.  S.  Cooper  Instituted  another 
action  In  equity  against  Susan  Brown,  Mary 
I>.  Brown,  and  N.  E.  Brown,  alleging  that,  in 
order  to  have  the  beneficial  use  of  the  water 
power,  it  became  necessary  to  repair  the 
head  gates  and  raceway,  and  that,  being  noti- 
tled  thereof,  and  requested  to  unite  In  mak- 
ing said  repairs,  defendants  failed  to  do  so, 
from  which  facts  It  Is  alleged  there  arose 
an  implied  contract  on  the  part  of  the  de- 
fendants to  pay  to  said  plaintiff  their  pro- 
l)ortion  of  the  expense  of  sncb  necessary  re- 
pairs as  plaintiff  should  make  upon  said  bead 
gates  and  raceway.  He  alleges  that  he  has 
In  fact  thus  incurred  large  expense,  the  de- 
fendants' share  of  which  is  unpaid,  and  be 
claims  a  mechanic's  lien  therefor  on  defend- 
ants' Interest  in  the  common  property,  wblch 
Hen  be  asks  to  have  foreclosed. 

The  pleadings  set  out  in  the  abstract  are 
numerous,  but  we  think  a  sufficiently  compre- 
hensive idea  of  the  issues  may  be  obtained 
when  we  say  that  to  each  of  tbe  actions 
above  mentioned  the  defendants  api)ear,  and 
deny  plaintiffs'  right  to  any  recovery,  or  to 
any  equitable  relief.  They  deny  that  the  ex- 
pense incurred  in  restoring  tbe  dam  was  paid 
by  plaintiffs,  but  say  it  was  paid  by  the 


voluntary    subscriptions    of    other    i>ors<>ns. 
because   of    Incidental    benefits   accruing     to 
themselves  by  tbe  maintenance  Of  tbe  daru. 
They  also  pleaded  the  decision  of  this  court 
in  Brown  v.  C!ooper,  supra,  as  a  prior  adjudi- 
cation adverse  to  tbe  claims  of  the  plaintiCfs. 
Susan  Brown,  for  herself,  denies  that  at  tbe 
time  when  plaintiffs  claim  to  have  incurred 
expanse  in  rebuilding  the  dam,  she  had  any 
Interest  in  the  property,  and  is  in  no  manner 
liable  to  contribute  thereto.    Defendants  al- 
so set  up  a  counterclaim  against  plaintiffs, 
alleging  a  use  of  the  water  power  by  the 
latter    in    excess    of   their   rightful   share. 
Plaintiffs,   replying,  deny  tbe  counterclaim, 
allege  a  prior  adjudication  upholding  their 
right  to  use  tbe  water  without  accounting 
therefor,  and  aver  other  reasons,  which  we 
need  not  here  set  out,  why  the  defenses  re- 
lied upon  by  tbe  defendants  cannot  be  main- 
tained.   The  trial  court  found  the  plalntififs 
entitled  to  recover  from  Susan  Brown  the 
sum  of  $5,753,  from  N.  E.  Brown  the  sum  of 
$201,  and  for  said  sums,  with  costs,  judgment 
was   entered.     It   also   found   the  plaintiff 
Cooper  entitled  to  recover  from  all  tbe  de- 
fendants,   upon   the   equitable   issue  Joined, 
tbe  sum  of  $918,  and  that  the  claim  for  a 
mechanic's  lien  be  established  and  enforced. 
From  each  of  these  adverse  judgments  and 
findings  the  defendants  appeal.    All  tbe  is- 
sues have  been  argued  and  submitted  in  thiis 
court  upon  tbe  same  records,  and  they  wilt 
be  disposed  of  by  us  in  a  single  opinion. 

1.  Can  plaintiffs  enforce  contribution  from 
tbe  Browns  for  repairs  and  Improvements 
made  by  the  former  upon  their  common  prop- 
erty? It  Is  to  be  remembered  at  the  outset 
that  the  common  Interest  of  the  parties  In- 
cludes nothing  but  tbe  dam  and  water  rights, 
and  that  the  different  mills  operated  by  ibis 
power  are  owned  by  them  In  severalty. 
Speaking  of  repairs,  as  distinguished  from 
Improvements  or  betterments,  of  the  common 
property.  It  seems  to  have  been  a  general 
rule  at  common  law  that  one  tenant  In  com- 
mon could  not  enforce  contributions  from  a 
co-tenant  for  expenses  thus  Incurred  without 
his  consent.  Mumford  v.  Brown,  6  Cow.  (N. 
T.)  475,  16  Am.  Dec.  440 ;  Doane  v.  Badger. 
12  Mass.  65;  Taylor  t.  Baldwin,  10  Barb. 
(N.  T.)  590;  Calvert  v.  Aldrich,  99  Mass.  74. 
06  Am.  Dec.  693 ;  Converse  t.  Ferre,  11  Mass. 
325 ;  Kidder  v.  Rlxford,  16  Vt  169,  42  Am. 
Dec.  604;  Davis  v.  Chapman  (C.  C.)  36  Fed. 
42;  Carver  v.  Miller,  4  Mass.  559;  Stack 
able  V.  Stackable's  Estate,  65  Mich.  515.  32 
N.  W.  SOS:  WIggIn  V.  Wlggln,  43  N.  H.  561. 
80  .\ni.  I>>c.  192;  end  see  Mr.  Freeman's 
note  to  Ward  v.  Ward,  52  Am.  St  Rep.  934. 
The  remedy  at  common  law  against  a  co- 
tenant  refu.sing  to  unite  In  making  neces- 
sary repairs  to  common  property  was  not  in 
assumpsit  for  expenses  Incurred,  but  by  a 
writ  de  reparatlone  faclenda,  sued  out  be- 
fore the  repairs  were  made.  In  which  pro- 
ceeding, upon  proper  showing  of  their  neces- 
sity, an  appropriate  order  or  Judgment  was 


Digitized  by  LjOOQ  l€ 


Iowa) 


COOPER  V.  BROWN. 


U7 


entered,  requiring  them  to  be  made  at  the 
expense  of  all  the  tenants,  each  In  his  proper 
proportion.  Bowie's  Case,  10  Coke,  82b; 
Leigh  ▼.  Dickinson,  12  Q.  B.  194 ;  dalvert  t. 
Aldrich,  99  Mass.  74,  96  Am.  Dec.  693.  Many 
of  the  more  modem  precedents  Indicate, 
however,  that  where  repairs  are  unquestion- 
ably necessary  for  the  preservation  of  the 
common  property,  one  tenant,  after  notice 
and  demand  upon  his  co-tenant;  and  refusal 
of  the  latter  to  Join  therein,  may  proceed  to 
do  the  required  work,  and  enforce  contribu- 
tion therefor.  See  cases  already  cited,  and 
Ward  Y.  Ward's  Heirs,  40  W.  Va.  611,  21  S. 
B.  746,  29  L.  H.  A.  449,  52  Am.  St.  Rep.  911 ; 
Stevens  v.  Thompson,  17  N.  H.  103;  Benson 
V.  Thompson,  27  Me.  470,  36  Am.  Dec.  617; 
Green  v.  Putnam,  1  Barb.  (N.  T.)  500.  This 
role  is  usually  hedged  within  quite  narrow 
UmltB ;  and,  in  order  to  support  such  a  claim, 
it  is  not  enough  to  show  that  the  repairs 
made  or  demanded  are  reasonable  and  prop- 
er, but  it  must  further  appear  that  they  are 
necessary  to  the  preservation  of  the  common 
t!state.  Some  courts  say  "absolutely  neces- 
sary." Devlin's  Estate,  5  Pa.  DIst.  R.  125; 
Dedi's  Appeal,  57  Pa.  472;  L«lgh  ▼.  Dick- 
inson, 12  Q.  B.  Div.  60. 

Says  Mr.  Freeman,  in  the  note  above  cit- 
ed: "It  must  be  remembered  that,  even  at 
common  law  no  co-tenant  was  under  any  gen- 
eral duty  to  repair,  but  only  under  obligation 
to  make  such  repairs  as  the  court  having 
jurisdiction  should  deem  to  be  necessary, 
and  then  only  to  make  them  under  the  direc- 
tion of  that  court  While  there  are  many 
.•ases  In  which  the  court  of  equity,  or  a  court 
of  law  administering  some  remedy  which  it 
lias  power  to  administer  upon  equitable  prin- 
ciples, may  take  into  the  consideration  the 
fact  that  one  of  the  parties  has  made  neces- 
sary repairs,  and  may  make  an  allowance 
therefor,  and  deduct  it  fom  a  sum  which  is 
coming  to  the  other  party,  we  do  not  believe 
that  any  action  or  suit  is  maintainable  by 
'>ne  co-tenant  against  another,  either  to  re- 
cover damages  arising  from  the  failure  of 
the  defendant  to  Join  In  necessary  repairs, 
or  to  obtain  personal  Judgment  against  him 
for  moneys  paid  in  making  repairs,  however 
necessary  they  may  have  been,  in  the  absence 
of  any  agreement  to  Join  therein.  •  •  • 
But  there  may  be  circumstances  which  war- 
rant the  inference  of  an  implied  agreement, 
as  where  the  property  was  being  used  for 
the  common  benefit,  and  the  repairs  upon  a 
sudden  contingency  became  necessary,  and 
<ome  of  the  part  owners  were  where  they 
could  not  be  consulted,  and  the  failure  to 
make  the  repairs  at  once  would  have  subject- 
ed the  property  to  great  injury,  and  its  own- 
ers to  a  loss  or  to  a  statutory  penalty. 
*  *  *  If  there  is  any  case  In  which  a  di- 
rect action  may  be  maintained  against  a  co- 
tenant  to  recover  a  share  of  the  expense  of 
I  be  repairs  upon  the  common  property,  and 
to  which  he  has  not  expressly  or  Impliedly 
a^eed  to  contribute,  it  Is  clear  that  It  Is 


only  where,  before  the  making  of  the  repairs, 
he  has  been  requested  to  Join  therein,  and 
has  unjustifiably  refused."  Speaking  to  the 
same  point,  the  Illinois  court  has  said  that 
to  maintain  such  an  action  the  plaintifr 
"must  show  a  request  to  unite  in  the  repara- 
tions, and  a  refusal,  as  well  as  an  actual 
expenditure,  in  making  them."  Louvalle  v. 
Menard,  6  111.  39,  41  Am.  Dec.  161.  It  has 
also  been  held  that  a  promise  by  one  co-ten- 
ant to  pay  another  for  repairs  or  Improve- 
ments upon  the  common  property  will  not  be 
implied  from  the  mere  making  of  them,  or 
from  their  utility  or  necessity.  Freeman's 
Note,  supra.  Nor  can  one  tenant  be  estopped 
to  deny  liability  for  repairs  by  his  mere  fail- 
ure to  object  thereto,  where  the  co-tenant 
proceeds  to  make  them  without  notice  or 
demand  upon  him  to  unite  therein.  Crest^. 
Jack,  3  Watts  (Pa.)  238,  27  Am.  Dec.  K3. 
Most  of  the  cases  cited  by  the  appellees  in 
support  of  their  right  of  action  recognize 
the  necessity  of  notice  and  demand  or  re- 
quest upon  the  co-tenant  before  he  can  be 
held  for  repairs  made  by  another.  In  otii- 
ers  the  rights  of  the  parties  are  governed  by 
statute. 

Applying  this  rule,  we  think  the  plaintiffs 
have  clearly  failed  to  make  a  case  against 
the  defendant  Susan  Brown;  for,  conceding 
for  the  present  that  she  was  a  co-tenant  at 
the  time  the  dam  was  rebuilt,  there  is  no 
evidence  whatever  of  any  notice  to,  or  de- 
mand upon,  her  by  the  plaintiffs  to  unite  in 
that  work,  or  to  pay  any  part  of  such  os- 
pense  after  the  dam  had  been  restored.  The 
utmost  of  the  testimony  In  this  respect  is  the 
testimony  of  a  son  of  the  plaintiff  Cooper 
that  he  had  a  talk  with  Mrs.  Brown  in  which 
he  told  her  of  the  necessity  of  rebuilding  the 
dam,  and  says:  "I  told  her  we  were  going 
to  have  a  meeting  in  10  days  at  our  office  to 
make  arrangements  about  rebuilding  the 
dam."  To  this  information  he  further  says 
that  she  made  no  definite  response.  It  will 
be  observed  that  the  person  who  addressed 
the  defendant  was  not  one  of  the  tenants  in 
common,  and  there  Is  nothing  to  show  by 
what  authority  he  Interviewed  her.  But  con- 
ceding his  authority  to  speak,  what  be  said 
is  In  no  sense  of  the  word  a  request  or  de- 
mand that  she  Join  in  making  the  repairs,  or 
notice  that  upon  her  failure  to  do  so  her  co- 
tenants  would  make  them.  She  was  inform- 
ed that  In  10  days  "we  are  going  to  have  n 
meeting  at  our  office  [presumably  the  office 
at  plaintiffs'  mills]  to  make  arrangements 
about  rebuilding  the  dam."  Defendant  was 
under  no  obligation  to  go  to  plaintiffs'  office. 
The  co-tenants  did  not  together  form'  a  cor- 
poration or  partnership,  and  neither  had 
any  power  to  bind  the  other  by  any  contract, 
agreement,  or  understanding — unless  it  be 
under  circumstances  and  conditions  already 
mentioned  for  strictly  necessary  repairs, 
where  the  defendant,  being  present  and  ca- 
pable of  acting  for  herself,  refuses  upon  no- 
tice and  demand  therefor  to  unite  in  tlie 


Digitized  by 


Google 


148 


122  NORTHWESTBBN  BEFOBTBR. 


(Iowa 


work.  There  Is  In  fact  no  showing  that  the 
proposed  meeting  was  held  at  the  time  and 
place  mentioned.  If  It  was  held,  and  a  con- 
clusion was  reached  bj  the  plaintiffs  that  the 
rebuilding  of  the  dam  was  a  proper  and  nec- 
essary expense,  the  rule  of  law  to  which  we 
have  adverted  required  that  such  conclaaton 
be  communicated  to  the  defendant,  with  a 
demand  for  her  co-operation,  before  the  ex- 
pense was  Incurred,  In  order  to  hold  her  lia- 
ble to  contribute.  There  is  no  pretense  of 
any  such  notice  or  demand.  The  one  wit- 
ness on  the  subject,  speaking  of  the  conversa- 
tion to  which  we  have  referred,  says :  "That 
is  all  the  talk  I  bad  with  her  about  that 
She  Is  the  only  one  of  the  Browns  I  spoke  to 
about  these  repairs."  It  seems  clearly  just 
and.  equitable  to  hold  that,  before  the  owners 
of  a  small  fractional  interest  in  common  prop- 
erty may  impose  such  heavy  burdens  upon 
the  owners  of  the  majority  Interest,  with  com- 
paratively little  expense  to  themselves,  they 
must  at  least  show  full  and  fair  observation 
on  their  own  part  of  all  the  conditions  prece- 
dent to  the  exercise  of  such  extraordinary 
power. 

2.  The  reasons  leading  to  the  condualon 
announced  in  the  foregoing  paragraph  apply 
with  equal.  If  not  greater,  force  to  the  case 
asserted  against  the  defendant  N.  E.  Brown. 
No  notice  was  given  him,  or  demand  made 
upon  him,  to  co-operate  in  building  the  dam. 
He  was  not  at  any  meeting  of  the  owners 
where  the  rebuilding  was  decided  upon,  and 
the  most  that  Is  said  of  him  Is  that  he  "was 
around  the  place  while  repairs  were  going 
on.  He  did  not  make  any  objections  to  me." 
But,  as  we  have  already  suggested,  one  ten- 
ant in  common  cannot  of  bis  own  personal 
motion  proceed  to  make  repairs  upon  the 
common  property,  and  enforce  contribution 
from  his  co-tenant  simply  because  the  latter 
knew  that  the  money  was  being  expended. 
Crest  V.  Jack,  3  Watts  (Pa.)  238,  27  Am.  Dec. 
353.  No  ground  was  shown  for  a  recovery 
against  this  defendant,  and  It  was  error  to 
render  judgment  against  him  on  the  record 
made. 

S.  Nor  are  we  able  to  find  any  ground  upon 
which  the  decree  establishing  a  mechanic's 
lien  upon  the  property  can  be  upheld.  We 
can  now  conceive  of  no  circumstances  un- 
der which  a  tenant  in  common  may  proceed 
alone  to  repair  or  Improve  the  common  prop- 
erty, and  have  the  benefit  of  the  statutory 
lien  therefor.  The  repairs  made  were  re- 
pairs to  plaintiff's  own  property,  and  they 
operate  °to  repair  defendant's  property  only 
because  of  the  undivided  character  of  the 
title  and  ownership.  It  may  well  be  that 
claims  for  repairs  and  Improvements  will, 
under  some  circumstances,  be  recognized  by 
a  court  of  equity  in  partitioning  the  common 
property  and  adjusting  the  conflicting  Inter- 
ests of  all  the  tenants,  but  counsel  cite  no 
authority  or  precedent,  and  we  think  none 
can.be  found,  where  one  tenant  can  enforce 
a  mechanic's  lien  upon  the  share  of  his  co- 


tenant  for  expenses  thus  Incurred.  There- 
is  no  contract,  express  or  implied,  upon 
which  it  can  be  based.  Moreover,  it  is  no 
more  the  duty  of  one  tenant  than  it  is  of 
another  to  protect  the  common  estate  against 
liens  and  Incumbrances  by  which  the  title 
may  be  lost  It  is  an  elementary  proposi- 
tion that  a  tenant  in  common  cannot  oust  his 
co-tenants  by  acquiring  a  tax  title  to  the 
property,  an4  his  payment  or  discharge  of 
any  lien  or  claim  thereon  operates  for  the 
benefit  of  all,  though  upon  partition  his 
claims  for  reimbursement  will  ordinarily  be 
recognized.  For  equally  cogent  reasons  he 
cannot  Impose  a  lien  upon  his  co-tenant's 
Interest  by  his  own  act  To  permit  the 
owner  of  a  small  fractional  interest  to  thus 
repair  or  Improve  the  owners  of  the  greater 
part  out  of  their  estate  would  be  a  clear  de- 
parture from  the  fundamental  principles  of 
the  law  of  co-tenancy.  In  the  case  at  bar 
these  parties  were  Involved  In  a  litigation 
which  even  then  had.  In  one  form  or  an- 
other, been  in  progress  for  20  years  or 
more.  They  were  hostile  In  act  and  In  senti- 
ment and  neither  could  have  been  led  Into 
any  supposition  or  belief  that  the  other  was 
conceding  anything,  or  voluntarily  consent- 
ing to  any  movement  or  act  of  his  adver- 
sary, which  could  be  the  foundation  of  any 
additional  liability.  In  short  there  Is  an 
entire  absence  of  all  the  requirements  for 
the  establishment  of  a  statutory  lien,  and 
the  decree  enforcing  the  same  cannot  be  sus- 
tained. 

4.  While  the  considerations  already  ad- 
verted to  are  sufficient  to  require  a  reversal 
of  the  Judgments  appealed  from,  it  is  proper 
that  we  also  consider  the  plea  of  former 
adjudication  set  up  by  the  defendants.  In 
this  connection  it  Is  well  to  again  recall 
attention  to  the  fact  that  at  the  very  mo- 
ment when  the  dam  was  rebuilt  an  action 
was  then  pending  between  these  parties  for 
the  partition  of  the  property  upon  which 
the  money  was  expended.  A  decree  had  been 
entered  fixing  their  several  shares  in  the 
ownership,  and  providing,  in  effect  for  a  con- 
tinued undivided  ownership  of  the  dam,  with 
a  scheme  or  plan  for  the  actual  partition  of 
the  water  to  be  drawn  therefrom  for  the 
use  of  the  mills  owned  by  the  parties  In  sev- 
eralty. It  was  with  a  view  to  the  situation 
created  or  confirmed  by  this  decree  that  the 
trial  court  ordered  the  rebuilding  of  the 
dam  at  the  common  exi>ense  of  all  the  own- 
ers, and  doubtless  it  was  in  reliance  upon 
the  same  decree  that  plaintiffs  proceeded 
to  the  work  of  rebuilding.  But  the  appeal 
from  that  decree  resulted  later  In  a  finding 
by  this  court  (see  Brown  v.  Cooper,  supra) 
that  there  could  l>e  no  physical  partition, 
and  that  the  entire  property  should  be  or- 
dered sold,  and  partition  be  made  of  the 
proceeds  as  demanded  by  the  Browns.  We 
are  therefore  to  consider  the  rights  of  the 
parties  and  their  relations  to  each  other 
and  to  the  subject-matter  of  their  controversy 


Digjtized  by  VjOOQ  l€ 


Iowa) 


WAPBLLO  STATE  SAVINGS  BANK  v.  OOLTON. 


149 


aa  they  woold  have  been  had  the  trial  court 
entered  a  proper  decree,  ordering  a  sale  of 
the  proper^  Instead  of  the  erroneous  decree 
which  was  entered.  Had  the  court  entered 
a  decree,  as  it  should  have  done,  for  a  sale 
of  the  property  and  distribution  of  the  pro- 
ceeds, and  the  flood  had  destroyed  the  dam 
pending  the  sale  so  ordered,  it  is  very  clear, 
<we  think,  that  neither  tenant  could  have  re- 
built it  at  the  common  expense  without  the 
consent  or  agreement  of  his  co-tenants.  The 
destruction  of  the  dam  was  a  fact  which 
would  naturally  affect  the  price  at  which 
it  could  be  sold,  but  it  was  a  calamity  or 
misfortune  common  to  all,  and  the  loss  would 
bare  been  borne  by  each  in  his  proper  pro- 
portion. Indeed,  with  a  decree  in  the  form 
indicated  by  this  court  in  the  decision  of 
that  appeal,  and  with  nothing  to  do  except 
to  sell  the  property  according  to  the  forms 
of  law,  and  to  distribute  the  proceeds  there- 
of, it  Is  not  conceivable  that  the  trial  court, 
or  the  plaintifis  themselves,  would  undertake 
to'  halt  the  proceedings  and  suspend  the 
sale  until  the  dam  should  be  rebuilt.  Sup- 
pose, for  Instance,  that  the  subject  of  par- 
tition had  been  a  city  lot  having  upon  it  a 
business  block,  and  after  decree  for  its  sale 
the  building  was  destroyed  by  fire,  would 
it  be  competent  for  the  court,  or  one  of  the 
parties,  to  reconstruct  the  building  in  an- 
ticipation of  the  sale,  and  expect  contribu- 
tion from  his  co-tenant  for  the  expense  so  in- 
curred? Certainly  not  True,  in  this  in- 
stance such  a  decree  had  not  been  entered, 
but  it  should  have  been.  These  defendants 
were  demanding  it,  and  on  their  appeal  then 
pending  this  court  sustained  their  position. 
They  can  now  be  placed  in  no  worse  position 
than  they  would  have  occupied  had  a  proper 
decree  been  rendered  as  of  the  date  of  the 
decree  which   was  afterward   reversed. 

A  final  adjudication  is  conclusive  not  only 
upon  every  matter  in  issue,  but  also  upon 
all  other  matters  or  questions  necessarily  In- 
volved therein.  The  partition  proceedings 
brought  the  common  property  within  the 
jurisdiction  of  the  court,  and  a  decree  or- 
dering its  sale  puts  it  beyond  the  power  of 
either  party  to  thereafter  complicate  the 
situation  by  rebuilding  a  destroyed  improve- 
ment thereon,  and  imposing  the  cost  thereof 
npoD  bis  co-tenants.  The  reversal  of  the 
decree  entered  by  the  trial  court,  and  the 
remand  of  the  cause  for  a  decree  for  the 
sale  of  the  property,  we  think  la  so  incon- 
sistent with  the  asserted  right  of  the  plaln- 
tUb  'to  rebuild  the  dam  at  the  cost  of  all 
the  owners,  after  the  defendants  herein  be- 
came entitled  to  a  partition  by  sale,  we  are 
disposed  to  hold  that  such  matters  come  with- 
in the  doctrine  of  res  Judicata,  and  that  the 
defense  made  upon  that  ground  should  be 
sustained. 

5.  The  foregoing  conclusions  are  decisive 
of  the  controveny,  and  we  shall  not  extend 


this  discussion,  already  of  tedious  length, 
to  consider  other  Issues  raised  by  the  answer 
and  argued  by  counsel.  We  enter  no  order 
for  a  new  trial;  for.  If  we  are  correct  in  the 
conclusion  reached  in  the  last  preceding 
paragraph  of  this  opinion,  there  can  be  no 
recovery  by  plaintiff  upon  either  of  the  sev- 
eral claims  in  suit  The  several  Judgments 
and  the  decree  of  the  district  court  from 
which  the  defendants  have  appealed  are 
therefore  reversed,  at  the  plaintUTs  costs, 
Reversed. 


WAPELLO  STATE  SAVINGS  BANK  v. 
COI/TON  et  al. 

(Supreme  Court  of  Iowa.    July  2,  190d.) 

1.  Pleadihq    (|   279*)— Ahxhdkd   ahd    Sup- 
plehkntai.  putadinob. 

Under  Code,  {  3641,  providing  that  either 
party  may  be  allowed  to  file  a  supplemental 
petition,  etc.,  alleging  facta  material  to  the 
case  which  have  happened,  or  have  come  to  bis 
knowledge,  since  the  filing  of  the  former  plead- 
ing, facts  not  material  to  any  issues  affecting 
the  remedy  are  not  appropriate  to  a  supple- 
mental pleading. 

[Ed.  Note.— For  other  cases,  see  Pleading, 
Cent.  Dig.  {  837%;    Dec.  Dig.  |  279.*] 

2.  Judgment  (J  584*)— Res  Adjudicata. 

To  constitute  an  adjudication,  there  moat 
have  been  a  final  judgment  on  the  merits. 
,    [Ed.  Note.— For  other  cases,  see  Judgment, 
Cent  Dig.  {f  1015-1017 ;  Dec.  Dig.  {  564.*] 

8.  Pleading    (f|    214.    352*)  —  Motion   to 

Strike— DEHUBBEB—EFrECT. 

The  effect  of  either  motion  to  strike  or 
demurrer  is  to  admit  truth  of  the  facta  alleged 
in  the  pleading  assailed,  but  to  deny  their  ef- 
ficacy as  justifying  the  relief  prayed. 

[Ed.  Note.— For  other  cases,  see  Pleading, 
Cent  Dig.  H  525-534,  1078;   Dec  Dig.  H  214, 

4.  Pleaoino  (8  189*)— "Demubbeb." 

A  "demurrer"  is  but  a  legal  exception  to 
the  sufficiency  of  the  pleading. 

[Ed.  Note.— For  other  cases,  see  Pleading, 
Dec.  Dig.  f  189.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  2,  pp.  1982-1985.] 

5.  PLKADINO  (i  218*)— DElfUBBEB— DisiassAU 

Where,  in  an  action  on  a  cashier's  bond, 
the  petition  was  held  insufficient  as  to  certain 
items,  and  plaintiff  failed  to  plead  over,  judg- 
ment of  dismissal  might  have  been  entered  as 
to  counts  based  on  such  items. 

[Ed.  Note.— For  other  cases,  see  Pleading, 
Cent  Dig.  K  658,  559;   Dec.  Dig.  i  21&*] 

6.  Judgment  (J  570*)— Bab— Dismibsai.. 

A  judgment  of  dismissal,  entered  on  plain- 
tiff's failure  to  plead  over  after  the  sustaining 
of  a  motion  to  strike,  may  be  pleaded  in  bar  of 
another  action  based  on  substantially  the  same 
facts. 

[Ed.  Note.— For  other  cases,  see  Judgment 
Cent  Dig.  {{  1028-1045 ;    Dec  Dig.  t  670.*] 

7.  CouBTs  (8  99*)— Judgment  on  Demubbeb— 
Conclusiveness. 

Judgment  rendered  on  demurrer  is  as  con- 
clusive as  to  the  material  facts  confessed  by 
the  demurrer  as  though  put  in  issue  and  ea- 
tabliahed  by  a  verdict  but  not  as  to  other  is- 


«r«r  ether  eases  sea  same  topic  and  section  NUMBER  la  Deo.  ft  Am.  Digs.  VWt  to  data,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


150 


122  NORTHWESTERN  REPORTER. 


(Iowa 


sues  raised  by  a  new  pleading  after  ttie  deci- 
sion on  the  demurrer. 

[Ed.  Note.— For  other  cases,  see  Courts,  Cent 
Dig.  i  340 ;   Dec.  Dig.  {  99.*] 

8.  Plkadinq  (8  386*). 

Where  certain  items  were  stricken  from 
the.  petition,  they  were  as  completely  out  of 
the.  case  as  though  a  formal  judgment  of  dis- 
missal had  been  entered. 

[Ed.  Note.— For  other  cases,  see  Pleading, 
Dec.  Dig.  (  S66.»] 

9.  Appeai,  and  Ebbob  (i  1195*)— Law  of 
Case. 

Where,  in  an  action  on  a  tianlc  cashier's 
bond,  plaintiff  set  out  copies  of  entries  In  its 
minutes,  which  the  court  on  appeal  held  to 
show  that  plaintiff's  trustees  had  converted  the 
cashier's  tenure  of  office  from  one  at  pleasure 
td!^ne  for  a  year,  and  that  therefore  his  bond 
wau  not  holden  after  such  time,  such  decision 
was  the  law  of  the  case. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {{  4061-4665;  Dec.  Dig.  | 
1105.*] 

10.  Appeal  and  Ebbob  ({  1201*)— Revebsal 
— sttpplementai,  pleading. 

Where  plaintiff  procured  an  order  to  stay 
proceedings  in  the  district  court  on  an  appli- 
cation representing  that  1'  the  ruling  of  such 
coyrt  on  a  certain  matter  was  affirmed,  no  trial 
of  the  issues  of  fact  in  the  case  would  be 
necessary,  and  obtained  a  postponement  of  the 
trial  of  the  remaining  issues  tor  more  than  a 
year,  it  could  not  after  affirmaoce,  repudiate 
its  representations,  and  demand  relief  on  a 
state  of  facts  contradictory  to  those  alleged,  as 
construed  by  the  Supreme  Court,  even  though 
able  counsel  advised  plaintiff  to  take  the  course 
it  did. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Krror,  Cent  Dig.  iS  4673-4083;  Dec.  Dig.  { 
1201.*] 

11.  Pleading  rt  360*)  —  Supplemental 
Pleading  —  Effect  of  Stbikinq  fbom 
Files. 

Where  a  supplemental  proceeding  was 
stricken  from  the  files,  the  former  pleading  was 
restored,  and  continued  effective. 

[Ed.  Note.— For  other  cases,  see  Pleading, 
Dec.  Dig.  {  360.*] 

12.  Pleading  (i  360*)— Obdeb  Stbikino  fbom 
Files. 

An  order  striking  an  amended  and  supple- 
mental pleading  from  the  files  is  self-executing. 
[Ed.    Note.— For   other   cases,   see   Pleading, 
Cent  Dig.  i  1145 ;   Dec.  Dig.  {  360.*] 

Appeal  from  District  Court,  Louisa  Coun- 
ty; W.  S.  Withrow  and  James  D.  Smyth, 
Judges. 

Action  on  a  bond  executed  by  the  cashier 
of  a  bank.  The  original  petition  at  law  was 
died  March  13,  1005.  An  amended  and  sub- 
stituted petition  was  filed  January  17,  1006. 
.\  motion  to  strike  the  last  25  Items  of  this 
>vas  filed  on  the  following  day,  and  sustain- 
ed. From  this  ruling  the  plaintiff  appealed, 
and  the  order  was  afllrmed  by  the  Supreme 
Court  February  5,  1907.  On  the  3d  day  of 
September  following  plaintiff  filed  an  amend- 
ed and  supplemental  petition  in  equity,  and 
on  motion  of  defendants  this  was  stricken 
from  the  files.  From  this  order  plaintiff  ap- 
ppals.  On  November  9,  1907,  the  defendants 
luored  for  Judgment,  and  It  was  entered  ac- 


cordingly.   From  this  plaintiff  .ilso  appeals. 
Affirmed. 
See,  also,  138  Iowa,  147, 110  N.  W.  450 

H.  O.  Weaver  and  Poor  &  Poor,  for  appel- 
lant. C.  A.  Carpenter  and  Arthur  Springer, 
for  appellees. 

LADD,  J.  The  amended  aod  substituted 
petition  was  at  law,  and  set  out  In  hsec  verba 
the  minutes  of  the  proceedings  of  the  board 
of  directors  of  the  bank  In  so  far  as  tbesA 
related  to  the  employment  of  the  cashier.  On 
the  former  appeal  the  cashier  was  held  to 
have  been  elected  originally  for  an  Indefinite 
period,  but  that  the  minutes  of  the  board  of 
directors  of  January  6,  1897,  reciting  that 
defendant  Colton  "and  E.  G.  Heins  be  em- 
ployed for  the  next  year  as  cashier  and  clerk, 
respectively,  for  the  total  sum  of  $1,200,  to 
be  divided  between  them,"  Indicated  the  elec- 
tion of  the  cashier  for  a  new  term,  "with 
a  fixed  limitation  of  time,  and  beyond  the 
limitation  of  that  appointment  the  orlglpal 
bond  could  be  of  no  force  and  effect."  The 
minutes  of  the  board,  dated  April  7,  1890. 
read:  "It  was  moved  and  seconded  that  W. 
H.  Colton  be  employed  as  cashier  for  the  re- 
mainder of 'the  year  at  a  salary  of  $60  per 
month."  But  the  effect  of  this  was  not  con- 
strued. Wapello  State  Bank  v.  Colton,  133 
Iowa,  147,  110  N.  W.  450.  To  meet  the  rul- 
ing striking  the  last  25  Items  of  defalcation 
from  the  petition  the  plaintiff,  upon  remand 
to  the  district  court,  filed  "an  amended  and 
supplemental  petition  In  equity,"  In  which, 
with  reference  to  the  minutes  first  mention- 
ed. It  was  alleged  that  on  the  6th  of  Janu- 
ary, 1897,  the  subject  of  the  comiiensatlon  of 
W.  n.  Colton,  then  acting  as  cashier,  and 
E.  G.  Helns,  then  acting  as  clerk,  for  plain- 
tiff, being  under  consideration.  It  was  verbal- 
ly agreed  by  and  between  plaintiff's  trus- 
tees and  said  parties  that  they  be  paid  the 
sum  of  $1,200  for  their  services  as  cashier 
and  clerk,  respectively,  for  the  ensuing  year, 
but  It  was  not  then,  or  at  any  time  prior  to 
November  20,  1904,  agreed  or  intended  that 
said  Colton's  then  existing  right  to  be  cash- 
ier during  the  pleasure  of  the  board  should 
terminate  at  any  time,  or  be  In  any  wise  af- 
fected by  the  said  agreement  respecting  his 
salary.  The  said  Colton  undertook  to  record 
the  action  so  taken  by  said  trustees  as  part 
of  the  minutes  of  their  proceedings,  but  the 
record  so  made  by  him  was  as  follows,  viz.: 
"Moved  that  Will  H.  Colton  and  E.  O.  Hetns 
be  employed  for  the  next  year  as  cashier 
and  clerk,  respectively,  for  the  total  sum  of 
twelve  hundred  ($1,200.00)  dollars  to  be  di- 
vided between  them.  Carried."  The  said 
Colton  and  the  said  trustees  then  and  at  all 
times  afterward  until  subsequent  to  the 
commencement  of  this  suit  mistakenly  un- 
derstood and  believed  that  the  record  $si> 
made  related  solely  to  the  salaries  to  be 


,  'For  other  cues  tee  same  topic  and  lectlon  NUMBER  in  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  ladezw 


Digitized  by  LjOOQIC 


Iowa) 


WAPELLO  STATE  SAVINGS  BANK  v.  COLTCX. 


iril 


paid  for  the  period  mentioned,  and  that  it 
did  not  relate  to,  or  in  any  wise  affect,  the 
terms  of  the  election  or  appointment  of  said 
Col  ton  on  August  9,  1892,  to  serve  until  he 
should  resign  or  be  discharged. 

Similar  allegations  were  made  with  re- 
spect to  the  minutes  of  April  7,  1896,  and  it 
was  farther  alleged  that  no  new  term  was 
ever  agreed  upon,  new  bond  exacted,  nor  did 
the  cashier  qualify  anew,  but  that,  notwith- 
standing this,  defendants  are  contending  that 
the  employment  for  an  indefinite  term  was 
•^hown  to  have  been  terminated  by  the  above 
minutes,  and  that  'no  evidence  to  the  con- 
trary is  legally  admissible."  A  schedule  of 
items  said  to  have  been  mlsapproprlnted  by 
the  cashier,  together  with  a  copy  of  the  bond, 
was  attached  to  this  petition,  and  In  an 
amendment  thereto  it  was  averred  that 
plaintiff  and  Colton  treated  the  minutes  as 
written  contracts,  and  their  agreements  were 
•evidenced  In  no  other  writing;  that  the 
plaintiff  contended  that  the  minutes  did  not 
indicate  the  termination  of  the  indefinite 
term  for  which  the  bond  was  given  on  the 
udvloe  of  counsel  In  good  faith,  and  prosecut- 
«'d  the  litigation  promptly.  The  prayer  was 
that  the  minntes  be  reformed  by  amending 
them  so  as  merely  to  fix  the  salary  of  the 
rashler,  for  an  accounting,  and  for  Judgment 
for  such  sum  as  might  be  found  to  be  due. 
The  defendants  moved  to  strike  the  amended 
and  supplemental  petition  on  five  grounds: 

(1)  That  no  facts  are  alleged  which  have 
r-ome  to  plaintiff's  knowledge  since  the 
amended  and  substituted  petition  was  filed; 

(2)  that  the  construction  of  the  minntes  as 
entered  by  this  court  on  the  former  appeal 
is  the  law  of  the  case;  (3)  that  all  matters, 
save  the  first  14  Items  of  defalcation,  have 
been  adjudicated;  (4)  tliat  no  equitable  is- 
sue is  pleaded;  and  (5)  laches  and  estoppel. 
The  motion  was  sustained.  The  three 
grounds  first  mentioned  may  be  considered  in 
the  order  mentioned: 

1.  The  only  matters  transpiring  since  the 
filing  of  the  amended  and  substituted  peti- 
tion were  those  excusing  delay  in  setting  up 
the  facts  peculiar  to  the  amended  and  sup- 
plemental petition.  These  were  not  material 
to  any  issue  affecting  the  remedy,  and  were 
not  appropriate  to  a  supplemental  pleading. 
Section  3641,  Code;  Leach  v.  Germania 
Bldg.  Ass'n,  102  Iowa,  125,  70  N.  W.  1090; 
Foote  V.  Burlington  Gas  Co.,  103  Iowa,  576, 
72  N.  W.  755 ;  Little  v.  Pottawattamie  Coun- 
ty, 127  Iowa,  376,  101  N.  W.  752. 

2.  The  ruling  of  the  court  on  the  former 
apipeal  undoubtedly  is  the  law  of  the  case. 
It  was  based  on  a  motion,  but  as  this  was 
directed  to  the  right  of  recovery  on  the  al- 
legations concerning  the  last  25  items  of  de- 
falcation, it  was  treated  as  a  demurrer.  Ap- 
pellees do  not  question  the  rule  that  to  con- 
stitute an  adjudication  there  must  have  been 
a  final  Judgment  on  the  merits.  See  Wood- 
ward V.  Jackson,  85  Iowa,  432,  52  N.  W. 
358.    Tbelr  contention  la  that  such  a  hearing 


may  be  had  on  motion  or  demurrer,  and  this, 
as  said,  is  true  as  to  specific  facts  Involved. 
The  effect  of  either  motion  or  demurrer  is  to 
admit  the  truth  of  the  facts  alleged  in  the 
pleading  assailed,  but  to  deny  their  efficacy 
as  Justifying  the  relief  prayed.  Whether  the 
ruling  thereon  is  such  an  adjudication  a5> 
will  be  binding  on  the  parties  in  the  same  or 
in  a  subsequent  action  necessarily  depends 
on  the  circumstances  of  each  particular 
case.  A  decision  thereon  determines  no 
more  than  that  such  exception  is  or  is  not 
well  taken.  A  demurrer  may  be  interiK>sed 
to  any  of  several  causes  of  action  alleged  in 
the  petition,  and  the  consequences  of  a  ruling 
thereon  are  definitely  stated  in  section  3560 
of  the  Code:  "The  opposite  party  shall  be 
deemed  to  Join  in  a  demurrer  whenever  he 
shall  not  amend  the  pleading  to  which  It  is 
addressed.  Upon  a  demurrer  being  ovcrrul 
ed,  the  party  demurring  may  answer  or  re- 
ply. Upon  a  decision  of  a  demurrer,  If  the 
adverse  party  fall  to  amend  or  plead  over, 
the  same  consequences  shall  ensue  as  though 
a  verdict  had  passed  agalust  the  plaintiff  or 
the  defendant  had  made  default,  as  the  case 
mny  be."  A  demurrer  Is  but  a  legal  excep- 
tion to  the  sufficiency  of  a  pleading.  Nolton 
V.  Railway,  10  How.  Prac.  (N.  Y.)  97.  So 
that,  when  the  petition  was  held  insufficient 
as  to  the  25  items,  and  plaintiff  failed  to 
plead  over.  Judgment  of  dismissal  might 
have  been  entered  as  to  counts  based  there- 
on. Plummer  v.  Roads,  4  Iowa,  587;  Tyler 
V.  Langworthy,  37  Iowa,  555.  And  this 
might  have  been  pleaded  In  bar  to  another 
action  based  on  substantially  the  same  facts. 
Coffin  V.  Knott,  2  G.  Greene,  582,  52  Am. 
Dec.  537.  Not  so,  however,  where  relief  is 
demanded  on  a  different  state  of  facts.  The 
distinction  is  illustrated  by  Keater  v.  Hock. 
11  Iowa,  236,  and  16  Iowa,  23.  Both  ac- 
tions were  against  the  indorsers  on  a  prom- 
issory note.  In  the  first,  suit  against  the 
makers  was  alleged,  and,  also,  failure  to  col- 
lect and  demurrer  to  the  petition  having 
been  sustained.  Judgment  of  dismissal  was 
entered.  In  the  latter,  demand  on  the  mak- 
er and  notice  to  the  Indorsers  were  alleged, 
and,  owing  to  the  difference  in  the  aver- 
ments, the  Judgment  in  the  earlier  action 
was  adjudged  not  good  as  a  plea  In  bar.  In 
short,  Judgment  rendered  on  demurrer  Is  as 
conclusive  as  to  the  material  facts  confessed 
by  the  demurrer  as  though  put  in  issue  and 
established  by  a  verdict,  but  not  as  to  other 
issues  raised  by  a  new  pleading  after  Oie  de- 
cision on  the  demurrer. 

In  23  Cyc.  1152,  the  law  on  the  subject  is 
thus  concisely  stated  by. Mr.  Black:  "A 
Judgment  rendered  on  a  demurrer  Is  equally 
conclusive,  by  way  of  estoppel  of  facts  con- 
fessed by  the  demurrer,  as  would  be  a  verdict 
and  Judgment  on  demurrer  finding  the  same 
facts.  But  a  Judgment  on  demurrer,  based 
merely  on  formal  or  technical  defects,  and 
raising  only  a  question  of  pleading,  is  no 
bar  to  a  second  action  tor  the  same  cause. 


L^ 


Digitized  by 


Google 


132 


122  NORTHWESTERN  REPORTER. 


(Iowa 


And  where  the  gronnd  of  the  demurrer  is  the 
omlseion  of  a  material  allegation  from  plain- 
tiff's pleading,  a  Jndgment  suatalning  the  de- 
murrer wUl  not  prevent  the  maintenance  of 
a  new  suit  on  the  same  cause  of  action,  in 
which  the  decIarAlon  or  complaint  supplies 
the  missing  averment.  On  the  other  hand,  a 
Judgment  on  a  demurrer  which  goes  to  the 
merits,  raising  a  question  of  substance,  and 
not  merely  one  of  form,  and  disposing  of  the 
whole  cause  of  action,  is  a  complete  bar  to 
a  subsequent  suit  on  the  same  claim  or  de- 
mand." In  the  case  at  bar  the  motion 
which  was  treated  as  a  demurrer  went  to  the 
merits.  The  amended  and  substituted  peti- 
tion alleged  "the  acts  of  the  board,  indicating 
its  desire  ttuit  he  (Colton)  continue  to  hold 
said  office  as  cashier,  are  as  follows,"  and 
then  set  out  copies  of  entries  of  the  minutes 
in  the  record  of  plaintiff  in  11  paragraphs. 
The  next  paragraph  alleged  that  "the  forego- 
ing acts  and  proceedings  were  duly  recorded 
in  writing  in  the  minutes  of  proceedings  of 
said  board  by  said  cashier,  and  the  foregoing 
are  true  copies  thereof."  The  motion  to 
strike  the  last  25  items  was  based  on  the 
contention  that  the  acts  of  the  board  as  re- 
cited had  definitely  converted  Colton's  tenure 
of  office  from  one  at  pleasure  to  one  for  a 
year,  and  therefore  that  his  bond  was  not 
holden  after  the  expiration  of  that  time.  In 
the  amended  and  supplemental  petition  it  was 
averred,  in  effect,  that  the  acts  were  not  as 
formerly  recited,  and  that  the  board  did  not, 
on  January  7,  1897,  or  at  any  other  time 
prior  to  November  26,  1904,  agree  that  Col- 
ton's right  to  the  office  should  be  terminated 
or  affected  by  what  was  then  done;  that  Is, 
In  the  former  pleading  the  minutes  of  the 
board  of  trustees  were  alleged  to  be  the  acts 
of  the  trustees,  and  after  the  courts  have 
taken  the  pleader  at  his  word,  and  declared 
that  one  of  these  acts  terminated  the  term 
of  the  cashier,  otherwise  continuing  at  the 
pleasure  of  the  board,  the  plaintiff,  In  an 
amended  and  supplemental  petition  filed  after 
remand  to  the  district  court,  says  that  the  act 
formerly  alleged  was  not  the  act  of  the 
board  of  trustees  and  Colton,  but  they  had 
agreed  exactly  to  the  contrary,  and  fixed 
no  specified  term  of  service,  and  the  minutes 
formerly  alleged  to  be  the  acts  of  the  board 
were  not  such,  but  should  be  reformed.  It  is 
very  plain  that,  had  judgement  of  dismissal 
been  entered  upon  the  ruling  on  the  motion, 
another  action  could  not  have  been  prosecut- 
ed for  recovery  on  the  items  on  the  grounds 
alleged  In  the  amended  and  supplemental  pe- 
tition. Having  alleged  precisely  what  the 
board  of  trustees  had  done,  plaintiff  would 
not  have  been  heard  to  assert,  In  praying  re- 
covery on  the  same  grounds,  that  it  had  not 
done  as  alleged  in  the  amended  and  substi- 
tuted petition.  A  suiter  will  not  be  permit- 
ted to  experiment  with  the  court  in  that 
way.  He  cannot  first  blow  hot,  and,  if  that 
does  not  succeed,  try  conclusions  on  blowing 
cold.    City  of  Sioux  City  t.  Ry.,  129  luwa. 


694,  106  N.  W.  183,  113  Am.  St.  Rep.  501: 
Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Hemmenway, 
134  Iowa,  523,  111  N.  W.  987;  Zelasky  v.  Ins. 
Co.,  114  Iowa,  616,  87  N.  W.  428.  Or  as  put 
by  Lord  Kenyon:  "A  man  shall  not  be  per- 
mitted to  blow  hot  and  cold  with  reference 
to  the  same  transaction,  or  insist  at  different 
times  on  the  truth  of  each  of  two  confiictine 
allegations,  according  to  the  promptings  of 
his  private  interests."  State  v.  Board  of 
Com'rs,  166  Ind.  162,  209,  76  N.  E.  986. 

Nor  do  we  think  it  material,  in  this  case, 
that  Judgment  of  dismissal  as  to  the  25  items 
was  not  formally  entered.  They  had  been 
Eitrlcken  from  the  amended  and  substituted 
petition,  and  were  as  completely  out  of  the 
case  as  though  a  formal  Judgment  of  dismiss- 
al had  been  entered.  Outhrie  v.  Howland, 
164  Ind.  214,  73  N.  B.  259.  In  affirming  this 
order  it  was  adjudged  by  this  court  that 
these  Items  had  been  rightfully  eliminated 
from  the  Issues  in  this  case.  Had  the  motion 
to  strike  been  overruled,  and  that  order  re- 
versed, the  situation  would  have  been  en- 
tirely different,  for  in  that  event  the  plain- 
tiff, on  remand,  might  very  properly  have 
elected  to  amend  Its  pleading.  But  In  aii- 
pealing  therefrom  it  elected  not  to  amend, 
but  to  stand  on  the  ruling.  After  having  done 
so,  It  is  not  in  a  situation  to  repent  its  elec- 
tion, and  pray  to  amend  by  contradicting  the 
acts  alleged  in  the  pleading  adjudged  by  both 
courts  to  be  insufficient  to  Justify  recovery. 
Especially  is  this  true  where,  as  in  this  case, 
the  appellant  procures  an  order  staying  pro- 
ceedings in  the  district  court  on  an  applica- 
tion representing  that,  if  the  ruling  is  af- 
firmed, and  their  contention  as  to  the  law 
sustained,  "no  trial  of  the  Issues  of  fact  in 
this  case  will  ever  be  necessary."  After  hav- 
ing obtained  the  postponement  of  the  trial 
of  the  remaining  Issues  for  more  than  a 
year  it  is  not  in  a  situation  to  repudiate  the 
allegations  upon  which  this  was  done.  Heat- 
on  V.  Lea  (Iowa)  119  N.  W.  697. 

Our  conclusion  is  not  obviated  by  the  cir- 
cumstance that  able  counsel  advised  plaintiflC 
to  take  the  course  It  did.  It  bad  the  right  to 
"bum  all  bridges  behind,"  and  rely  solely  on 
counsel's  construction  of  the  minutes;  but, 
after  pursuing  such  course,  and  procuring  a 
stay  on  the  representation  that,  should  the 
ruling  on  the  district  court  be  approved,  no 
trial  of  the  claim  Involved  in  the  ruling 
would  be  sought,  it  ought  not  to  be  permitted, 
upon  defeat,  to  repudiate  its  representations, 
and  demand  relief  upon  a  state  of  facts  con- 
tradictory to  those  alleged  as  construed  by 
this  court.  Had  the  trial  proceeded  on  the 
remaining  issues  in  the  district  court,  and 
Judgment  been  entered,  no  one  would  contend 
that  the  pleading  stricken  properly  could 
have  been  filed,  and  yet.  In  view  of  the  rec- 
ord as  made,  the  plaintiff  is  In  no  better  posi- 
tion than  It  would  have  been  had  this  been 
done,  for  it  procured  a  stay  upon  the  repre- 
sentation that  ui>on  affirmance  the  decision 
would  be  flnaL    So  the  trial  court  waa  not 


Digitized  by  VjOOQ  l€ 


Iowa) 


IK  RE  EAST. 


163 


in  error  In  treating  the  mling  as  to  tbe 
25  Items  as  final,  for  all  right  to  plead  over 
had  been  waived.  At  the  most,  permission 
to  file  the  pleading,  as  it  had  been  filed  with- 
out leave,  was  discretionary,  and  there  was 
no  abuse  of  discretion  under  the  drcum- 
Btances  in  striking  It  from  the  files. 

3.  Upon  remand  to  the  district  conrt  trial 
notice  was  filed,  and  upon  the  entry  of  the 
order  by  which  the  amended  and  supple- 
mental i>etltlon  was  stricken,  leave  was  not 
granted  to  plead  farther,  ^ome  days  later, 
and  after  an  appeal  from  such  order  had 
been  perfected,  defendants  moved  for  Judg- 
ment dismissing  the  cause,  and  for  costs,  on 
tbe  grounds,  in  Bul>stance:  (1)  That  no  plead- 
ing of  plalntifl  was  on  file  tendering  an  issue; 
(2)  because  the  pleading  stricken  was  in- 
tended to,  and  did,  8Ui)er8ede  others  on  file, 
and  plaintiff  had  failed  to  plead  farther,  the 
appeal  from  order  strildng  the  pleading  not 
having  stayed  proceedings.  And,  after  recit- 
ing the  filing  and  rulings  in  the  case,  there 
was  added:  "And  defendants  now  by '  this 
motion  call  this  case  for  finql  disposition, 
and  if  plaintiff  still  insists  that  there  is  any- 
thing left  in  tbe  case  to  try  not  Involved 
in  the  last  appeal,  the  defendants  are  ready 
and  willing  to  try  the  same."  This  motion 
was  sustained.  It  may  be  that  it  was  in- 
tended that  the  amended  and  supplemental 
petition  should  supersede  what  was  left  of 
the  amended  and  substituted  petition,  but,  by 
striking  It  from  the  files,  this  was  not  allow- 
ed, and  the  former  pleading  was  restored  and 
contlnaed  effective.  Hill  v.  Jamison,  16  lud. 
12o,  79  Am.  Dec.  414;  Spooner  v.  Cady,  101 
Cal.  xviii,  86  Pac.  104;  Bealle  v.  Day,  28 
6a.  435.  Proceedings  thereon  had  not  been 
stayed  by  the  appeal  or  otherwise.  The  ap- 
peal was  from  the  order  striking  the  amend- 
ed and  supplemental  pleading.  That  order 
was  self-executing.  Allen  v.  Church,  101 
Iowa,  U6,  70  N.  W.  127.  Jurisdiction  was 
lost  by  the  trial  court,  and  acquired  by  the 
Supreme  Court,  with  respect  to  such  order 
and  pleading  only.  The  pleadings  as  they 
stood  before  it  was  filed  were  restored  when 
it  was  stricken,  and  in  no  way  affected  by 
the  appeal,  and  as  to  these,  and  issues  raised 
thereby,  the  district  court  retained  jurisdic- 
tion, and  might  have  proceeded  with  the 
trial.  First  Nat  Bank  v.  Dutcber,  128  Iowa, 
413,  104  N.  W.  497,  1  L.  R.  A.  (N.  S.)  142; 
Bamnm  ▼.  Bamum,  42  Md.  251;  2  Cyc.  909. 
The  causes  of  action  presented  in  tbe  amend- 
ed and  substituted  petition,  based  on  the  first 
14  items  of  defalcation,  as  was  alleged,  on 
which  issue  bad  been  Joined  by  answer,  were 
pending  and  appropriate  for  trlaL  Whether 
it  is  to  be  presumed.  In  support  of  the  ruling 
of  the  trial  court,  that  plalntifl  was  afforded 
an  appoTtanltj  to  proceed  to  trial,  and  be- 
caoM  at  Its  faUnre  or  refusal  the  action  was 
dismissed,  or  the  court  on  such  a  motion  must 


have  denied  the  application  to  dismiss,  and 
assigned  the  cause  for  trial,  without  entered 
Judgment  of  dismissal,  the  members  of  the 
court  are  unable  to  agree. 

Being  equally  divided,  the  Judgment  of  dis- 
missal is  affirmed  by  operation  of  law. 

Affirmed. 


In  re  EAST. 
(Supreme  Court  of  Iowa.     July  2,  1909.) 

1.  Rbcobds  (I  7*)— Fn-iiro  Papebs. 

To  constitute  tbe  filing  of  papers  in  a  court 
of  record,  it  is  not  necessary  that  an  indotse- 
ment  of  filing  of  the  papers  be  made,  and  a 
paper  may  be  filed  without  being  indorsed ;  the 
mdorsement  l>eing  simply  evidence  of  the  fact 
and  time  of  filing. 

[Ed.    Note.— For   other   cases,    see    Records, 
Cent.  Dig.  f  6;    Dec  Dig.  J  7.»] 

2.  Infantc^  (§  19*)  —  Neglected  Childben  — 
CoMuiTitENi   10  Home  —  JaaisDicTioN   of 

COUET. 

Where,  in  proceedings  under  Code  Supp. 
1907,  §  S260-b  et  seq.,  to  commit  neglected  chil- 
dren to  a  children's  home,  it  appeared  that  tbe 
complaint  was  presented  to  the  court ;  that  an 
order  was  made  thereon  for  a  hearing;  that 
return  of  service  was  made  by  the  sherili;  that 
the  mother  of  the  children  appeared,  and  was 
heard — the  fact  that  the  complaint  and  return 
of  service  was  not  marked  "filed"  until  after 
the  order  committing  the  children  to  the  home 
was  made  did  not  affect  the  jurisdiction  of  the 
court  to  make  the  order. 

[E^d.  Note.— For  other  cases,  see  Infants,  Dec. 
Dig.  {  19.*] 

8.  PLEADiiro    a    408*)— CoicPLAnTT— Objec- 
tioks— Waives. 

Where  there  is  an  appearance  by  defendant, 
Qbjections  to  the  complaint  must  be  raised  be- 
fore trial,  or  they  will  be  deemed  waived,  un- 
less the  complaint  states  no  cause  of  action,  in 
which  case  failure  to  object  is  no  waiver. 

[Ed.    Note.— For   other   cases,   see    Pleading, 
Cent.  Dig.  !  1366;    Dec.  Dig.  {  408.*] 

4.  Infants  (I   19*)— ■Nbolroted  Childben— 
CouifiniENT  TO  Hoick— Pbookedinos. 

Code  Supp.  1907,  {  3260-e,  provides  that 
the  proceedings  for  the  commitment  of  neg- 
lected children  to  a  children's  home  shall  be  by 
written  complaint,  stating  the  cause  of  action 
and  the  relief  aslied.  The  complaint,  in  pro- 
ceedings to  commit  neglected  children,  alleged 
the  abandonment  of  the  children  by  the  father, 
and  that  by  his  and  the  mother's  neglect  the 
children  were  in  danger  of  becoming  vicious. 
The  mother  was  served  with  notice  of  hearing, 
and  appeared  and  resisted  the  application.  She 
made  no  objection  to  the  complaint.  The  chil- 
dren were  produced  in  court.  No  service  was 
made  on  the  father,  because  of  the  inability  of 
the  officer  to  find  him  in  the  county.  Held, 
that  the  complaint,  though  defective  for  failing 
to  name  tbe  children,  and  tiecause  it  was  gen- 
eral in  its  statements,  was  sufficient  to  give  the 
court  jurisdiction,  and  an  order  committing  the 
children  was  not  void  for  want  of  jurisdiction. 

[Ed.  Note.— For  other  cases,  see  Infants,  Dec. 
Dig.  {  19.*] 

5.  Infants  (t  19*)— NEautOTBD  Ohujdbkn— 
CoMnrrMENT  to  Home— Notice. 

In  proceedings  under  Code  Supp,  1907,  { 
3260-d   et   seq.,   to  commit  neglect^  cUldren 


•For  otlier  eaaw  ■••  ■■me  topic  and  McUoa  NUMBER  In  Deo.  *  Am.  Diss.  1807  to  data,  *  Reporter  IndazM 


Digitized  by  VjOOQ  l€ 


154 


122  NORTHWESTERN  REPORTER. 


(lotrm 


to  a  children's  home,  the  children  need  not  be 
served   with  notice  of  hearing. 

[Ejd.  Note^ — For  other  cases,  see  Infants,  CenL 
mg.  i  19 ;  Dec.  Dig.  {  19  ;*  Reformatories, 
Cent.  Dig.  {  8.] 

U.  COUBTS    (i     So*)— JUBIBDIOnON— PSKSmiP- 

TIONE(. 

It  will  be  assumed,  in  support  of  the  ju- 
risdiction of  a  court  of  general  jurisdiction, 
that  notice  was  given  to  the  proper  parties,  and 
the  one  attacking  an  order  of  such  court  has 
the  burden  to  show  that  the  order  was  made 
without  jurisdiction. 

[Ed.  Note.— For  other  cases,  see  Courts,  Cent 
Dig.  i  140;    Dec.  Dig.  i  35.*] 

T.  Appkai,   and    Ebbob    (|    034»)— Pbesump- 
TioNs— SnrriciENCY  or  Evidence. 

Where,  on  appeal  from  an  order  commit- 
ting neglected  children  to  a  children's  home  as 
authorized  by  Code  Supp.  1907,  8  3260-b,  the 
evidence  on  which  the  trial  court  acted  was 
not  presented  to  the  Supreme  Court,  it  must 
presume  that  the  evidence  justified  the  order. 
[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  i  3777 ;    Dec.  Dig.  1  934.*] 

8.  Infants  (5   19*)— Neglected  Childben— 
Commitment  to  Home— Pboceedings. 

Where  the  complaint,  in  proceedings  under 
Code  Supp.  1907,  {  3260-b  et  seq.,  to  commit 
neglected  children  to  a  children's  home,  alleged 
that  the  father  had  abandoned  the  children, 
and  the  court  directed  the  service  of  the  com- 
plaint and  the  order  for  hearing  on  the  father 
and  mother,  and  the  sheriff  showed  service  on 
the  mother,  who  appeared,  and  returned  that 
he  could  not  find  the  father  in  the  county,  the 
court  had  jurisdiction  as  against  the  father, 
in  the  absence  of  a  showing  by  him  that  he 
bad  the  custody  and  control  of  the  children  at 
the  time  of  the  commencement  of  the  action  or 
afterwards ;  the  statute  requiring  service  on 
the  parents,  if  the  children  are  in  their  custody 
and  control. 

[Ed.  Note.— For  other  cases,  see  Infants,  Dec. 
Dig.  {  19.*] 

9.  Infants  (S   19*)— Neglected  Childben— 
Pboceedings. 

A  father  who  abandoned  his  minor  chil- 
dren could  not  complain  of  the  insufficiency  of 
the  evidence,  in  proceedings  under  Code  Supp. 
1907,  i  3260-b  et  seq.,  to  justify  the  court 
in  committing  the  children  to  a  children's  home, 
where  he  presented  no  defense,  and  did  not 
show  that,  if  time  was  given,  any  other  result 
could  or  would  be  reached. 

[Ed.  Note. — For  other  cases,  see  Infants,  Dec. 
Dig.  i  19.*] 

Appeal  from  District  Court,  Sac  County; 
F.  M.  Powers,  Judge. 

Appeal  from  an  order  committing  the  six 
children  of  Mr.  and  Mrs.  James  T.  East  to 
the  Iowa  Children's  Home.    Affirmed. 

Cbas.  D.  Goldsmith,  for  appellants.  R.  L. 
McCord,  Jr.,  Co.  Atty.,  for  Sac  County. 

DEEMER,  J.  On  the  5tb  day  of  Septem- 
ber, 1908,  there  was  presented  to  the  district 
court  of  Sac  county,  Iowa,  a  complaint  of 
one,  J.  J.  Harter,  who  was  overseer  of  the 
poor  in  and  for  Sac  City,  in  said  county.  In 
the  following  words:  "J.  J.  Harter,  the 
complainant,  stated  that  he  is  a  citizen  of  the 
state  of  Iowa,  residing  in  Sac  City,  Sac  coun- 
ty, Iowa,  and  that  he  is  overseer  for  the  poor 
in  and  for  Sac  City,  in  said  county ;  that  the 


Iowa  Children's  Home  Society  la  a  society 
l^aily  incorporated  and  existing  under  the 
laws  of  the  state  of  Iowa  for  the  purpose  of 
receiving,  caring  for,  placing  oat  for  adop- 
tion, and  improving  the  condition  of  aban- 
doned, abased,  Ill-treated,  friendless,  and 
orphan  children;  that  the  following  named 
children,  to  wit:  •  »  »  reside  with  their 
mother  in  Sac  City  in  said  county,  and  that 
James  East,  the  father  of  said  children,  has 
abandoned  them,  and  that  by  reason  of  the 
neglect  of  the  said  father,  James  East,  and 
the  said  mother,  the  above-named  children 
are  in  circumstances  tending  to  induce  said 
children  to  lead  dissolute,  vicious,  and  Im- 
moral Uvea.  Wherefore  the  complainant  aslts 
that  such  children  be  taken  from  their  said 
parents  and  committed  to  the  Iowa  Chil- 
dren's Home  Society."  This  complaint  was 
duly  verified,  and  the  trial  court  made  the 
following  order  thereon:  "Now  at  this  time, 
to  wit,  September  5,  1908,  the  complaint  of 
J.  J.  Harter  against  James  East  and  Mrs. 
James  Bast  was  presented  to  the  court,  and, 
the  court  being  fully  advised  in  the  premises, 
it  iB  ordered  that  a  copy  of  said  complaint 
and  this  order  be  served  upon  James  East 
and  Mrs.  James  East,  and  that  the  time  fixed 
for  hearing  such  complaint  shall  be  on  the 
5th  day  of  September,  1908,  at  the  hour  of  4 
p.  m.  at  the  courthouse  in  Sac  City,  Sac  coun- 
ty, Iowa.  It  is  the  further  order  of  the  court 
that  the  sheriff  forthwith  take  Into  his  cus- 
tody all  of  the  said  minor  children  of  the 
said  James  East  and  Mrs.  James  East,  and 
present  them  before  the  said  court  at  the 
time  and  place  above  stated  where  said  cause 
shall  be  heard  and  determined,  and  this 
order  shall  be  his  sufficient  warrant  therefor. 
F.  M.  Powers,  Judge."  Pursuant  to  this 
order  notice  was  served  and  return  thereof 
made  In  the  following  language:  "I,  G.  E. 
Williams,  deputy  sheriff  of  Sac  county,  Iowa, 
being  duly  sworn,  on  oath  say  and  do  hereby 
certify  and  return  that  on  the  6th  day  of 
September,  1908,  1  received  for  service  a  cer- 
tain order  and  copy  of  which  is  hereto  at- 
tached, marked  'Exhibit  A'  and  a  certain 
copy  of  complaint  a  copy  of  which  is  hereto 
attached,  marked  'Exhibit  B,'  and  that  on 
the  5th  day  of  September,  1908,  I  served  the 
said  order  and  the  said  copy  of  complaint  on 
Mrs.  James  East  in  Sac  City,  Sac  county, 
Iowa,  by  reading  to  her,  in  her  presence  and 
hearing,  the  said  order  and  the  said  copy  of 
complaint,  and  by  delivering  to  her  truf 
copies  thereof,  and  that  I  did  not  find  James 
East  within  said  county.  I  further  certify 
and  return  tliat  I  took  into  my  custody  the 
following  named  minor  children  of  James 
East  and  Mrs.  James  East,  namely:  Garnet 
Cedle  East,  Hazel  Aurey  East,  James  Lew 
East,  Blanche  Marie  East,  Arthur  Merle 
East,  Owen  Keir  East — and  presented  them 
before  the  district  conrt  of  Sac  county,  Iowa, 
at  the  courthouse  in  Sac  City,  Sac  county. 


•For  otlisr  case*  we  Mme  topic  and  section  NUMBER  In  Dec.  &  Am.  Dlga.  U07  to  date,  ft  Reporter  ludexn 


Digitized  by  VjOOQ  l€ 


Iowa) 


IN  RE  EAST. 


155 


Iowa,  at  4  o'clock  p.  m.,  September  5,  1908. 
U.  B.  Wllllama,  Deputy  Sheriff  of  Sac  Coun- 
ty, Iowa." 

Mrs.  James  East  appeared  before  tbe  dis- 
trict court  at  4  o'clock  p.  m.  September  5th 
in  response  to  this  notice,  for  the  purpose 
of  resisting  the  applicatlofi,  and,  being  with- 
out counsel,  the  Judge  appplnted  Hon.  Chas. 
D.  Goldsmith  to  appear  for  and  represent  her 
at  said  hearing.  Thereupon  testimony  was 
taken,  and  at  the  conclusion  thereof  the  trial 
court  made  the  following  order:  "Be  it  re- 
membered that  on  this  5th  day  of  September, 
A.  D.  1908,  complaint  having  been  made  to 
me  under  the  provisions  of  chapter  8,  tit.  16, 
Code  of  Iowa,  that  Garnet  CecUe  East,  a, 
minor  child  about  the  age  of  16  years,  born 
July  16,  1892,  Hazel  Aurey  East,  a  minor 
child  about  the  age  of  12  years,  Iwm  October 
16,  1S95,  James  Lew  East,  a  minor  child 
about  the  age  of  10  years,  bom  December  16, 
1897,  Blanche  Marie  East,  a  minor  child 
alMut  the  age  of  8  years,  born  April  16,  1900, 
.\rthnr  Merle  East,  a  minor  child  about  the 
age  of  7  years,  bom  July  5,  1901,  and  Owen 
Keir  East,  a  minor  child  about  the  age  of 
5  years,  bom  June  11,  1903,  by  reason  «f  the 
neglect  of  their  parents,  James  East  and 
Mrs.  James  East,  are  tn  circumstances  tend- 
ing to  Induce  said  children  to  lead  dissolute, 
vicious,  and  immoral  lives,  and  upon  hearing 
it  appears  to  me  that  the  allegations  of  said 
complaint  are  fully  established,  and  that  the 
welfare  of  said  children  requires  that  they 
should  t>e  surrendered  to  the  Iowa  Children's 
Home  Society,  a  corporation  duly  organized 
under  the  laws  of  the  state  of  Iowa  for  the 
purpose  of  caring  for  and  protecting  friend- 
less children.  Therefore,  under  And  by  vir- 
tue of  the  power  and  authority  vested  in  me 
by  chapter  8,  tit  16,  of  the  Code  of  Iowa,  It 
Is  hereby  ordered  that  the  said  children 
above  named  be,  and  they  are  hereby,  sur- 
rendered to  the  care,  custody,  and  control 
of  the  said  Iowa  Children's  Home  Society. 
And  said  Home  Society  is  hereby  made  and 
constituted  the  l^al  guardian  of  the  persons 
of  said  children,  and  authorized  to  have  and 
exercise  all  the  right  and  authority  of  the 
parents  of  said  children,  as  provided  by  chap- 
ter 8,  tit  16,  of  the  Code  of  Iowa." 

Thereafter,  and  on  October  23, 1908,  It  sUli 
being  at  the  regular  term  of  said  court, 
James  T.  East  appeared,  and  filed  a  motion 
to  set  aside  the  foregoing  order,  and  to  grant 
dim  a  new  trial  and  hearing  of  the  matter 
for  the  following  reasons:  "(1)  The  court 
bad  no  Jurisdiction  to  make,  render,  or  enter 
such  order  of  record,  or  otherwise,  for  that 
no  notice  of  the  proceedings  has  ever  been 
served  upon  the  parents  of  such  children,  as 
provided  by  section  5,  c.  133,  p.  101,  of  the 
Acts  of  the  Twenty-Ninth  General  Assembly, 
nor  any  other  notice  whatever;  (2)  there  is 
no  sufBdent  evidence  to  support  such  order ; 
13)  that  there  has  been  no  complaint  filed 
with  the  court,  nor  served  upon  the  parents 
of  sach  children,  as  provided  by  section  5, 


c.  133,  p.  101,  of  the  Acts  of  the  Twenty- 
Ninth  General  Assembly ;  (4)  that  the  parents 
of  the  children  were  taken  by  surprise,  and 
had  no  time  nor  opportunity  to  prepare  for 
trial,  or  present  their  defense.  In  support 
of  this  motion  your  applicant  refers  to  the 
record  made  and  entered  in  this  case."  This 
motion  was  submitted,  and  the  court  made 
an  order  overruling  the  said  motion,  and 
James  T.  East  duly  excepted  to  this  ruling. 
Appeals  were  taken  by  both  Mr.  and  Mrs. 
East,  and  the  case  comes  before  us  for  review 
upon  the  record  so  made.  Appellants  con- 
tend that  the  court  had  no  Jurisdiction  of  the 
matter,  because  there  was  no  notice  to  James 
T.  East  and  his  wife,  Mrs.  James  T.  East, 
that  no  sufficient  complaint  was  ever  filed 
or  served  according  to  law,  that  the  court 
was  in  error  in  denying  the  motion  of  James 
T.  East,  and  in  refusing  lilm  an  opportunity 
to  be  beard  on  the  merits  of  the  controversy, 
and  that  the  entire  proceedings  were  coram 
non  Judlce. 

Under  the  law  as  it  stood  when  these  pro- 
ceedings were  had,  abandoned,  abused,  ill- 
treated,  friendless,  or  orphan  children  may 
be  ordered  surrendered  to  a  legally  incor- 
porated society  for  the  purpose  of  receiving 
or  caring  for  them  by  any  court  of  record,  or 
by  a  Judge  thereof,  upon  complaint  made  and 
proceedings  had  therein  as  by  law  provided. 
Section  3260-d  et  seq.  of  the  Code  Supplement 
specifies  the  procedure  In  such  cases,  and  the 
material  provisions  read  as  follows: 

"Sec.  3260-d.  Whenever  it  shall  be  made  to 
appear  to  any  court.  Judge,  mayor  or  Justice 
of  the  peace,  as  above  provided,  that  any 
child  within  its  Jurisdiction,  by  reason  of  or- 
phanage, or  neglect,  abuse,  crime,  drunken- 
ness, or  gross  immorality  of  one  or  both  of 
the  parents,  or  other  persons  having  custody 
of  such  child,  is  abandoned,  ill-treated,  or 
friendless,  or  in  circumstances  tending  to  In- 
duce such  chUd  to  lead  a  dissolute,  Immoral 
or  vicious  life,  then  It  shall  be  the  duty  of 
such  court  or  magistrate  to  take  such  child 
away  from  Its  parents  or  those  having  control 
thereof,  and  commit  it  to  some  society  incor- 
porated for  that  purpose,  or  to  some  other 
person  or  guardian,  as  may  seem  to  be  for 
the  t>est  interests  of  such  child,  and  the  so- 
ciety or  person  so  adopting  shall  be  required 
to  keep  such  child  if  over  seven  years  of  age 
and  under  fourteen  years  of  age,  in  school 
during  the  school  sessions  of  the  school  dis- 
trict In  which  said  child  is  kept  or  in  some 
parochial  school  for  like  period. 

"Sec.  3260-e.  All  proceedings  under  section 
four  of  this  chapter  shall  be  by  written  com- 
plaint duly  verified,  which  complaint  shall 
state  the  cause  of  action  and  the  relief  ask- 
ed. If  it  shall  appear  that  such  child  Is  in 
the  custody  and  control  of  parents,  guardians, 
or  other  persons,  such  parents,  guardians  or 
other  persona  shall  be  served  with  a  copy 
of  said  complaint,  and  such  notice  of  the 
time  and  place  of  the  hearing  thereof  as  may 
be  ordered  by  the  court  or  magistrate  by 


Digitized  by  VjOOQ  l€ 


156 


122  NORTHWESTERN  REPORTER. 


(Iowa 


whom  the  case  la  to  be  tried;  which  notice 
and  copy  shall  be  served  In  the  same  manner 
as  1b  provided  In  the  service  of  original  no- 
tices. An  appeal  may  be  taken  to  the  dis- 
trict court  from  the  order  of  a  magistrate 
at  any  time  within  twenty  days  thereafter, 
in  the  same  manner  as  appeals  are  taken 
from  Judgments  In  Justice  courts,  except  that 
no  bond  shall  be  required  to  stay  proceedings. 

"Sec.  3260-f.  Upon  filing  of  proper  com- 
plaint, the  magistrate  may,  if  thought  best. 
Issue  a  warrant  directed  to  the  sheriff  or 
other  peace  officer,  requiring  auch  peace  of- 
ficer forthwith  to  take  Into  his  custody  the 
child  described  in  such  complaint,  and  to  re- 
tain possession  of  It  subject  to  the  order  and 
direction  of  the  court" 

The  record  shows  that  the  complaint  which 
we  have  heretofore  set  out  was  not  marked 
filed  until  November  11, 1908,  and  that  it  does 
not  give  the  names  or  ages  of  the  minor  chil- 
dren. The  return  of  service  was  not  marked 
filed  until  November  23,  1908,  and  this  shows 
service  upon  the  mother  alone,  the  father, 
James  East,  not  being  found  within  the  coun- 
ty. This  return  also  shows  that  the  sheriff 
took  six  minor  children  of  Mr.  and  Mrs. 
James  East  into  custody,  and  presented  them 
to  the  district  court  pursuant  to  its  order 
made  on  September  5,  1908.  The  record  fur- 
ther shows  that  Mrs.  James  T.  East  appear- 
ed In  response  to  the  notice,  that  an  attorn^ 
was  appointed  to  represent  her,  and  that  a 
hearing  was  had  resulting  in  an  order  which 
we  have  heretofore  set  out.  The  exact  points 
now  made  are  that  the  complaint  was  insuffi- 
cient both  in  form  and  substance;  that  it  was 
not  filed  until  long  after  the  order  of  commit- 
ment was  made ;  that  not  sufficient  time  was 
given  the  parents  to  resist  the  complaint; 
that  no  notice  was  given  the  father  of  the 
children ;  and  that  the  court  proceeded  under 
a  law  (chapter  8,  tit  16  of  the  C!ode)  which 
had  been  repealed  and  not  under  the  substi- 
tute therefor.  It  is  also  claimed  that  the 
court  was  in  error  in  not  sustaining  the  mo- 
tion of  James  T.  East  to  set  aside  the  order. 
While  It  Is  true  that  neither  the  complaint 
nor  the  return  of  service  was  marked  "filed" 
until  long  after  the  order  was  made,  yet  It 
does  appear  that  the  complaint  was  presented 
to  the  court,  and  order  made  thereon,  and 
that  the  return  of  service  was  made  by  the 
sheriff  In  due  season,  and  that  the  mother 
responded  to  the  service,  was  present  in  court 
in  person  and  by  attorney,  and  was  given  a 
hearing  on  the  original  complaint.  That  both 
the  complaint  and  notice  were  filed,  or  in 
other  words  that  they  were  presented  to  the 
court  received  and  acted  on  by  It  and  left 
in  its  official  custody.  Is  clear  from  the  rec- 
ord presented.  It  Is  not  necessary  that  an 
indorsement  of  filing  be  made  upon  any  paper 
in  order  to  constitute  a  filing.  A  paper  may 
be  filed  without  being  marked  or  indorsed  by 
the  clerk  or  any  other  official.  The  memo- 
randum or  Indorsement  Is  simply  evidence  of 


the  fact  and  time  of  filing,  but  Is  not  essen- 
tial thereto.  In  re  Conant's  Estate,  43  Or. 
630,  73  Pac  1018;  Harrison  t.  aifton,  7S 
Iowa,  786,  88  N.  W.  406. 

In  our  opinion  there  are  but  three  ques- 
tions which  demand  attention,  and  these  are : 
(1)  Was  there  a  sufficient  complaint  present- 
ed to  the  court  to  give  it  Jurisdiction?  (2>- 
Was  notice  thereof  to  the  father,  James  East 
essential  to  give  Jurisdiction?  And  (3)  did  the 
court  err  denying  James  East's  motion  to- 
set  aside  the  order,  and  to  give  him  a  hearing 
on  the  matter?  First,  then,  as  to  the  com- 
plaint. A  reference  to  the  statute  discloses 
that  there  must  be  a  written  complaint  duly 
verified,  stating  the  cause  of  action  and  the 
relief  asked.  The  statute  is  general  in  terms, 
although  it  does  require  that  the  complaint 
must  state  the  cause  of  action  and  the  relier 
asked. 

Turulng  now  to  the  complaint,  we  find  that> 
although  It  does  not  name  the  children,  it 
does  allege  that  the  minor  children  of  Mr. 
and  Mrs.  James  T.  East  had  been  abandoned 
by  the  father,  and  that  both  mother  and 
■father  had  so  neglected  them  as  to  induce 
them  to  lead  dissolute,  vicious,  and  Immoral 
lives.  The  complaint  was  manifestly  defect- 
ive In  that  it  did  not  name  the  children,  and 
was  quite  general  In  its  statements  regard- 
ing the  nature  of  the  charges.  It  was,  of 
course,  subject  to  attack  for  these  reasons, 
but  cannot,  in  view  of  the  appearance  made 
thereto  by  Mrs.  East  and  her  attorney,  be  re- 
garded as  a  nullity.  No  objection  was  rais- 
ed thereto,  but  a  trial  was  had  thereon,  and 
an  order  made,  which  we  have  heretofore  set 
out  It  Is  immaterial  that  the  court  based 
Its  action  upon  a  statute  which  had  been 
repealed,  if  there  was  a  substantial  compli- 
ance with  the  law  as  it  then  existed.  The 
children  were  produced  In  court  pursuant  to 
the  order,  their  names  and  ages  ascertained, 
and  a  finding  made  which  would  Justify  their 
siurrender  to  the  Children's  Home.  The  rule 
which  obtains  everywhere  is  that,  when  there 
is  an  appearance  to  an  information  or  com- 
plaint, all  objection  thereto  must  be  ralse<l 
before  trial,  or  they  will  be  deemed  waived. 
People  V.  Heffron,  63  Mich.  630,  19  N.  W. 
170.  Of  course,  if  the  complaint  states  no 
cause  of  action,  it  Is  nothing  more  than  waste 
paper,  and  failure  to  object  is  bo  waiver. 
See  the  Heffron  Case.  This  complaint  does 
show  an  abandonment  of  the  children  by  the 
father,  and  a  neglect  upon  the  part  of  both 
parents  tending  to  induce  the  children  to 
lead  dissolute,  vicious,  and  Immoral  lives. 
No  service  was  required  upon  the  children, 
and  Mrs.  East  appeared,  and  resisted  the  ap- 
plication without  making  any  objection  to  its 
form  or  substance.  It  will  not  do  to  say,  un- 
der such  drcumstances,  that  the  court  bad 
nothing  before  it  upon  which  to  act,  and  was 
therefore  without  Jurisdiction. 

As  to  the  notice.  While  the  complaint 
showed  an  abandonment  of  the  children  by 
the  father,  the  court  directed  service  of  th* 


Digitized  by  VjOOQ  l€ 


Iowa) 


WILSON  r.  ANCHOB  FIBE  INS.  00. 


167 


complaint  and  of  Its  order  upon  both  father 
and- mother.  The  deputy  sheriff  made  a  re- 
turn that  he  did  not  find  James  East  within 
the  conuty  and  that  he  did  not  serve  him, 
although  he  did  serve  Mrs.  East  The  stat- 
ute requires  service  upon  the  parents  If  the 
children  are  in  their  custody  and  control. 
If  not,  then  upon  the  person  having  their 
custody  and  control  The  complaint  showed 
that  the  father  had  abandoned  the  children, 
and  they  were  not,  therefore,  in  his  control 
and  custody;  and,  while  the  order  directed 
that  he  be  served,  the  sheriff  returned  {hat 
he  did  not  find  him  in  the  county,  thus  indi- 
cating that  he  did  not  have  the  custody  and 
control  of  the  children.  No  objection  was 
made  by  the  mother  to  the  service  of  the 
notice,  and  when  the  father,  James  East,  ap- 
peared and  filed  his  motion  to  set  aside  the 
order  and  grant  a  new  trial,  he  did  not 
show  that  the  children  were  in  his  custody 
and  control,  or  that  he  was  entitled  to  notice 
of  tjie  proceedings.  It  then  became  a  ques- 
tion of  fact  as  to  whether  or  not  the  father 
had  such  custody  and  control  of  his  children 
as  entitled  him  to  notice  of  the  proceedings. 
There  Is  no  such  showing  in  this  record  as 
would  justify  us  in  holding  that  the  trial 
court  was  without  Jurisdiction  because  of 
want  of  notice  to  James  Bast.  It  will  be  as- 
sumed, in  support  of  the  Jurisdiction  of  the 
court,  that  notice  was  given  to  the  proper 
parties,  and  the  burden  is  upon  him  who 
attacks  an  order  of  a  court  of  general  Juris- 
diction to  show  that  the  order  was  without 
Jurisdiction.  There  Is,  as  we  have  said,  no 
showing  that  at  the  time  of  the  commence- 
ment of  the  proceedings,  or  afterwards,  that 
James  Blast  did  have  the  custody  and  control 
of  the  children.  He  afterward  appeared  and 
asked  the  court  to  set  aside  the  order  for  the 
reasons  stated.  The  granting  of  such  a  re- 
quest was  largely  within  the  discretion  of  the 
trial  court,  and  no  abuse  of  that  discretion 
is  here  shown.  For  some  reason  the  testi- 
mony upon  which  the  trial  court  acted  In 
malUng  the  original  order  has  not  been  pre- 
sented to  us,  and  It  must  therefore  be  pre- 
sumed that  there  was  ample  to  Justify  the 
conclusions  of  the  trial  court  James  East 
did  not  claim  in  his  motion  that  be  had  any 
defense  to  the  proceedings.  His  claims  were 
that  the  court  had  no  Jurisdiction  for  want 
of  sufficient  complaint,  and  by  reason  of  the 
fact  that  no  notice  was  given.  He  also 
charged  that  there  was  not  sufficient  testi- 
mony to  support  the  order,  and  that  he  was 
taken  by  surprise,  and  had  neither  time  nor 
opportunity  to  prepare  for  trial  or  present 
his  defense.  No  testimony  was  taken  upon 
this  application,  and  It  does  not  appear  upon 
wtiat  the  court  acted  in  making  its  original 
order.  Mrs.  East  appeared  to  the  application, 
but  took  no  exception  to  its  form,  and  did  not 
ask  for  additional  time.    There  is  no  such 


showing  In  this  record  as  would  Justify  us 
In  finding  that  the  trial  court  abused  its  dis- 
cretion in  overruling  the  application  of  James 
East 

Mrs.  East's  appeal  is  without  foundation, 
save  as  it  may  appear  that  the  court  had  no 
Jurisdiction,  either  because  of  insufficient 
complaint,  or  by  reason  of  want  of  service  of 
notice  upon  her  husband.  She  was  in  fact 
served.  But  even  were  this  not  shown,  she 
voluntarily  appeared  and  went  to  trial  with- 
out raising  any  objection  to  the  form  or  sub- 
stance of  the  complaint  and  without  asking 
for  any  further  time  to  make  her  defense. 
There  is  no  such  showing  as  would  require 
a  notice  upon  her  husband  to  give  Jurisdic- 
tion, and  she  waived  all  defects  in  the  com- 
plaint. James  East  has  no  standing  In  court 
unless  it  appears  that  he  was  a  necessary 
party  to  the  proceeding,  and  was  entitled  to 
notice,  or  that  the  proceedings  were  coram 
non  Judlce.  He  cannot  complain  of  insuffi- 
ciency of  the  testimony,  nor  ask  that  the  or- 
der be  set  aside  for  want  of  time  in  which  to 
resist  the  application,  for  he  presents  no  de- 
fense to  the  order,  and  does  not  show  that 
if  time  were  given,  any  other  result  could 
or  would  be  reached.  The  real  merits  of  the 
matter  are  not  presented  to  us,  for  the  testi- 
mony upon  which  the  order  was  made  has 
not  been  embodied  In  the  record.  We  must 
therefore  assume  that  the  original  order  was 
fully  Justified  by  the  evidence.  The  proposi- 
tions relied  upon  are  all  technical,  and  final- 
ly resolve  themselves  down  to  this:  Was  the 
complaint  although  defective  both  In  form 
and  substance,  sufficient  to  give  the  court  Ju- 
risdiction? We  think  that  it  was,  and  that, 
In  the  absence  of  proper  and  timely  objection, 
it  furnished  a  foundation  upon  which  to  bot- 
tom the  order  mad& 

No  error  appears,  and  the  orders  and  Judg- 
ment are  each  and  all  affirmed. 


WILSON  V.  ANCHOR  FIRE  INS.  CO.  et  al. 

(SPIES,  Intervener). 

(Supreme  Court  of  Iowa.    July  2,  1909.) 

1.  INSUBANCK  (J  143*)— RlETOBUATION  OT  OOR- 
TBAOT— MUTUAI.   MlBTAKXS— EVIDKNCK. 

An  applicant  for  fire  insurance  on  his 
dwelling  and  furniture,  and  the  soliciting  agent 
at  the  time  of  making  the  application,  acted 
under  the  mistaken  belief  that  a  prior  policy 
on  the  dwelling  had  expired.  While  the  agent 
had  the  amplication,  the  applicant  discovered 
that  the  prior  policy  was  in  force,  and  notified 
the  agent  thereof,  but  h«  sent  the  application 
to  insurer,  and  it  issued  a  policy  thereon.  HeUt, 
that  insurer  was  not  entitled  to  a  reformation 
of  the  policy  by'  strildng  out  the  part  insuring 
the  dwelling  on  the  ground  of  mutual  mistake. 
[Eld.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  if  266-272;  Dec.  Dig.  f  143.*] 

2.  iNStTBANCI  (I  95*)— KlIOWUDQB  OV  AOINT 

— Effbot. 

An  insurance  company  is  chargeable  with 
the   knowledge   of  its   soliciting  agent  at  tiie 


-•FDT-otlMr  CKMs  see  same  topic  and  Motion  NUMBER  In  D«a  A  Am.  Digs.  1M7  to  date,  ft  Raportor  ladezos 


Digitized  by 


Google 


158 


122  NORTHWESTERN  REPORTER. 


(Iowa 


time  he  tniumiu  to  it  an  application  for  in- 
surance. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  {  125;   Dec.  Dig.  {  OS.'*] 

3.  INSUBANOK    (i    878*)   —  Knowledqb    of 
Aoemi^-Bffect. 

A  fire  policy  stipulated  that  it  should  be 
void  if  other  insurance  existed.  The  applicant 
and  soliciting  agent  acted  at  the  time  of  mak- 
ing the  application  under  the  mistaken  belief 
that  a  prior  policy  had  expired.  The  applicant, 
on  discovering  that  the  policy  was  in  force, 
notified  the  soliciting  agent,  who  subsequently 
submitted  the  application  to  insurer,  and  it  is- 
sued the  policy.  Held  that  insurer  could  not 
escape  liability  as  for  an  existing  'breach  of 
the  conditions  of  the  policy. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent.  Dig.  if  968-977 ;    Dec.  Dig.  {  378.»] 

4.  iNStTBAKCE    (I   336*)   —   FiBE    INSUBA.NCE  — 
CONTBACTS— VALIDITT. 

The  policy  of- an  insurer,  stipulating  that 
it  shall  be  void  on  additional  insarance  being 
obtained  without  its  written  consent,  indorsed 
on  the  policy,  becomes  invalid  on  insured  pro- 
curing an  additional  insurance  in  the  absence 
of  insurer's  consent  o^  waiver. 

(Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  S!  85G-874;    Dec.  Dig.  f  336.*] 

.5.  INSUBANCE  (S  336»)  —  FiBE  Insubancb  — 

CONTBACTS— VALIDrrT. 

A  fire  policy  stipulated  that  it  should  be 
void  on  insured  procuring  additional  insurance 
without  insurer's  consent.  Insured  procured 
an  additional  policy,  stipulating  that  it  should 
be  void  if  other  insurance  existed.  The  first 
insurer  did  not  consent  to  the  additional  insur- 
ance, hut  was  merely  informed  that  an  applica- 
tion for  additional  insurance  had  been  made  in 
the  belief  that  the  first  policy  bad  expired,  and 
that  insured  had  thereafter  notified  the  agent 
of  the  second  insurer  of.  the  mistake.  Held, 
that  the  additional  insurance  was  obtained 
without  the  consent  of  the  first  Insurer,  render- 
ing the  first  policy  void,  and  authorizing  full 
recovery  on  the  second. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent.  Dig.  SS  856-877 ;   Dec.  Dig.  §  336.*] 

Appeal  from  District  Court,  Pottawatta- 
mie County ;   W.  R.  Green,  Judge. 

This  is  an  action  on  a  policy  of  Insurance. 
There  was  a  decree  for  the  plaintiff,  as  policy 
bolder,  and  for  the  intervener,  Amelia  M. 
Spies,  as  mortgagee.  The  defendant  Anchor 
Fire  Insurance  Company  has  appealed.  Af- 
firmed. 

Edward  H.  McVey  and  W.  8.  Baird,  for 
appellant  J.  J.  Stewart,  for  appellees  Wil- 
son and  Spies.  Sullivan  ft  SnlllTan,  for  ap- 
pellee State  Insurance  Company. 


EVANS,  C.  J.  On  October  24,  1906,  tbe 
.Anchor  Fire  Insurance  Company  Issued  a 
policy  of  Insurance  to  tbe  plaintiff  upon  bis 
dwelling  bouse.  In  tbe  sum  of  $1,000,  and  up- 
on tbe  furniture  therein  In  tbe  sum  of  $400. 
In  September,  1906,  tbe  dwelling  bouse  was 
totally  destroyed  by  fire,  including  furniture 
to  tbe  value  of  $152.75.  The  plaintiff  brought 
bis  action  against  tbe  defendant  company 
for  the  0um  of  $1,152.75.  No  controversy  is 
made  as  to  tbe  extent  of  bis  loss.  It  appears 
from  tbe  record  that  plaintiff's  application 


for  Insurance,  in  pursuance  of  which  the  poli- 
cy In  question  was  Issued,  was  taken  on  Oo- 
tober  10, 1905,  by  one  Sells,  who  was  a  solicit- 
ing agent  for  the  defendant  company.  It 
appears,  also,  that  prior  to  such  date,  and  In 
the  year  1902,  the  State  Insurance  Company- 
bad  Issued  to  the  plaintiff  its  policy  for  $1.- 
000  on  the  same  dwelling  house.  This  poli- 
cy was  made  payable  to  the  Intervener  mort- 
gagee, and  was  In  her  possession,  and  was 
in  full  force  and  effect,  on  October  19,  1905. 
On  .this  latter  date  Sells  and  another  called 
upon  tbe  plaintiff  to  solicit  insurance.  Tbe 
plaintiff  himself  was  in  IH  health,  and  the 
business  In  his  behalf  was  transacted  by  hit> 
wife.  In  her  conversation  with  Sells  she  told 
him  of  the  previous  insurance,  and  stated  her 
belief  that  It  had  expired.  No  question  Is 
made  of  her  good  faith  In  this  statement. 
Thereupon  an  application  for  Insuv.ince  was 
signed  by,  or  on  behalf  of,  the  husband,  plain- 
tiff herein.  On  the  next  day,  Mrs.  Wilson 
called  at  the  oflSce  of  one  Tipton,  who  bad 
been  Instrumental  In  procuring  the  first  poli- 
cy in  1902,  and  ascertained  from  him  that 
such  policy  was  still  in'  force.  She  Imme- 
diately sougbt  out  Sells  and  informed  him  of 
that  fact.  At  the  time  Sells  received  such 
Information,  he  had  not  yet  sent  plaintiff's 
application  to  the  defendant  company,  bat 
had  tbe  same  then  In  his  pocket,  and  so  stat- 
ed to  Mrs.  Wilson.  Notwithstanding  such  In- 
formation, he  retained  the  application  from 
her,  and  sent  It  In  to  the  company,  and  tbe 
company  accepted  the  same,  and  Issued  its 
policy  thereon  on  October  24th,  and  later  col- 
lected its  premium  thereon.  To  this  extent 
the  facts  are  practically  undisputed.  Upon 
this  state  of  facts  tbe  defendant  has  based 
its  defense.  In  its  pleadings  It  has  presented 
a  threefold  defense:  First,  that  the  existence 
of  tbe  previous  insurance  rendered  tbe  policy 
issued  by  tbe  defendant  void,  according  to  its 
express  terms;  second,  that  the  policy  was 
drawn  to  cover  plaintiff's  dwelling  bouse 
through  mutual  mistake,  and  in  the  mistaken 
belief  of  both  parties  that  the  previous  insur- 
ance had  expired,  and  that  the  defendant  is 
therefore  entitled  to  a  reformation  of  the 
policy  striking  out  such  part  thereof,  and 
Ruch  reformation  was  prayed;  third,  that  if 
reformation  be  refused,  and  defendant's  poli- 
cy be  held  valid,  then  under  the  express  pro- 
visions of  tbe  policy  it  is  liable  only  for  its 
pro  rata  share  of  such  loss,  regardless  of 
whether  the  previous  policy  was  valid  or 
void.  Tbe  first  defense  Is  not  seriously  press- 
ed in  argument  Tbe  real  questions  presented 
for  our  consideration,  are:  First,  is  the  ap- 
pellant entitled  to  a  reformation  of  the  poli- 
cy on  the  ground  of  a  mutual  mistake?  Sec- 
ond, if  not  is  it  entitled  to  have  its  liability 
reduced  to  a  prorating  basis,  by  reason  of 
the  existence  of  tbe  previous  policy?  The 
plaintiff  on  hU  part  does  not  claim  to  have 
Intended  to  maintain  double  Insurance.    His 


•For  other  casM  (M  name  topic  uid  soetlon  NUMBER  to  Dee.  ft  Am.  Digs.  U07  to  data,  ft  Reporter  Indcxaa 


Digitized  by  VjOOQ  l€ 


Iowa) 


WILSON  V.  ANCHOK  FIKB  INS.  OO, 


159 


lK>sUion  is  that  the  appellant  l8  liable  for  the 
full  amount  If,  however,  It  should  be  found 
that  the  appellant  Is  entitled  to  a  reforma- 
tion of  the  policy,  then  the  plaintifT  claims 
rhat  he  Is  entitled  to  recover  from  the  State 
Insurance  Company  on  the  former  policy.  If 
it  sbonld  be  held  that  appellant  Is  liable  only 
for  a  pro  rata  share  of  the  loss,  then  the 
plaintiS  claims  likewise  that  the  State  In- 
surance Company  is  liable  for  the  balance. 
To  preserve  his  rights  in  this  respect  the 
iilaintlfr  brought  an  action  against  the  State 
Insurance  Company.  In  the  court  below  the 
appellant  asked  tliat  the  State  Insurance 
'Company  and  the  mortgagee,  Amelia  Spies, 
be  made  parties  defendant  to  this  suit,  and 
that  the  cause  be  heard  in  equity,  and  it  was 
so  ordered.  Later  the  action  brought  by 
plaintiff  against  the  State  Insurance  Com- 
pany was  consolidated  with  this  case,  and 
both  were  tried  together.  The  lower  court 
adjudged  the  appellant  to  be  liable  for  the 
full  amonut  of  the  Insurance  on  the  dwelling 
bouse,  and  dismissed  plalntifTs  case  against 
the  State  Insurance  Company.  From  that 
judgment  the  defendant  has  appealed.  In  or- 
der to  preserve  his  ultimate  rights  the  plaln- 
t  iff  has  appealed  also.  He  does  not,  however, 
ask  a  consideration  of  his  appeal,  unless  re- 
lief be  awarded  to  the  Anchor  Fire  Insur- 
ance Company. 

1.  Is  appellant  entitled  to  a  reformation  of 
the  policy  because  of  mutual  mistake?  That 
the  parties  acted  on  October  19,  1905,  nnder 
a  mistaken  belief  as  to  the  facts  is  undisput- 
ed. The  contract  sued  on,  however,  was  not 
consummated  on  that  date.  The  plaintiff 
signed  an  application.  It  still  rested  with 
the  company  to  accept  or  reject  the  appllca- 
'ion.  Before  such  application  was  accepted 
by  the  company,  and  while  the  application 
was  still  in  the  hands  of  its  soliciting  agent, 
the  mistake  was  discovered  by  the  plaintiff, 
and  Bocb  discovery  was  promptly  communl- 
rated  to  the  soliciting  agent.  The  plaintiff 
doubtless  liad  a  right  at  that  point  to  recall 
bis  application  and  terminate  negotiations. 
.Surely  the  appellant  bad  a  right  to  reject  the 
Application.  It  did  not  do  so.  With  knowl- 
edge of  the  material  fact  it  chose  to  Issue  Its 
policy  in  pursuance  of  the  application,  and 
to  collect  its  premium  therefor.  In  the  Is- 
suance of  such  policy  it  was  not  acting  nnder 
any  mistaken  belief.  This  ground  of  ref- 
ormatton,  therefore,  falls  away. 

It  is  argued,  however,  that  Sells  did  not 
i^mmnnlcate  to  the  home  office  the  Informa- 
tion wblch  be  had  obtained  from  Mrs.  Wilson, 
and  that  the  company  proper  had  no  knowl- 
•Hlge  of  >ncb  information,  and  that  it  relied 
■olely  npon  the  statements  in  the  application. 
If  this  be  so,  then  Sells  perpetrated  a  frand 
upon  bis  principal.  He  was  the  soliciting 
agent  of  this  company.  It  is  the  settled  rule 
in  this  state  that  the  defendant  company  was 
chargeable  with  this  knowledge  on  the  part 
of  Its  soliciting  agent    It  was  a  present  con- 


dition, made  known  to  the  agent  while  the 
application  was  in  his  hands,  and  before  the 
company  had  bound  itself  to  its  acceptance. 
Johnson  t.  Ins.  Co.,  126  Iowa,  565,  102  N.  W. 
502;  Miller  v.  Ins.  Co.,  31  Iowa.  216,  7  Am. 
Rep.  122;  Hagan  v.  Ins.  Co.,  81  Iowa,  325. 
46  N.  W.  1114,  25  Am.  St  Rep.  493;  Inde- 
pendent School  District  v.  Ins.  Co.,  113  Iowa, 
65,  84  N.  W.  966 ;  Padrnoa  v.  Century  Ins.  Co. 
(Iowa)  119  N.  W.  133;  Key  v.  National  Ufe 
Ins.  Co.,  107  Iowa,  446,  78  N.  W.  68;  sec- 
tion 1750,  Code  1897.  See,  also.  Continental 
Ins.  Co.  V.  Chamberlain,  132  U.  S.  304.  10 
Sup.  Ct  87,  33  L.  Ed.  341.  Under  these  hold- 
ings, it  is  clear  that  appellant  cannot  escape 
liability  as  for  an  existing  breach  of  the  con- 
ditions of  the  policy,  and  equally  clear  that 
defendant  has  no  grounds  for  reformation 
thereof. 

2.  The  next  question  is  whether  the  appel- 
lant is  liable  for  the  full  amount  of  the  loss, 
or  for  a  pro  rata  share  thereof  only.  This 
question  necessarily  depends  upon  the  further 
question  whether  the  issuance  of  the  Anchor 
policy  Invalidated  the  previous  policy  Issued 
by  the  Slate  Insurance  Company.  The  ear- 
lier policy  contained  an  express  provision 
that  it  should  become  Invalid  if  additional  in- 
surance were  obtained  upon  the  property 
without  the  written  consent  of  the  company 
indorsed  upon  such  policy.  The  argument  of 
appellant  at  this  point  is  that  the  fact  of 
additional  insurance  was  made  known  to  ono 
Tipton,  an  alleged  agent  of  the  insurance 
company,  and  that  he  made  no  objection 
thereto,  and  that  this  was  in  effect  a  waiver 
of  such  provision  of  the  policy.  Passing  over 
the  question  of  the  authority  of  Tipton  (who 
was  not  a  recording  agent)  to  bind  the  State 
Insurance  Company  by  any  knowledge  or  act 
of  waiver  on  his  part  at  such'  time,  it  is  suf- 
ficient to  say  that  the  evidence  does  not  af- 
ford sufficient  basis  for  this  argument.  The 
most  that  can  be  claimed  under  the  evidence 
is  that  Mrs.  Wilson  ascertained  from  Tipton 
that  the  State  Insurance  Company  policy  had 
not  expired,  and  that  she  Informed  lilm  that 
she  had  made  an  application  for  other  Insur- 
ance in  the  belief  that  the  first  policy  had 
expired,  and  that  she  later  informed  him  that 
she  had  notified  the  other  parties  of  the  mis- 
take. On  the  issue  of  fact  here  involved  the 
finding  of  the  lower  court  was  against  the 
appellant  and  we  agree  with  such  finding. 
In  the  absence  of  consent  or  waiver  on  the 
part  of  the  State  Insurance  Company  Its 
policy  became  Invalid  when  the  Anchor  policy 
became  effective.  Independent  School  Dis- 
trict v.  Fidelity  Ins.  Co.,  113  Iowa,  65,  84  N. 
W.  956;  Zimmerman  v.  Insurance  Ck).,  77 
Iowa,  685,  42  N.  W.  462.  The  conclusion  of 
the  trial  court  was  that  the  appellant  was 
liable  for  the  full  amount  of  the  loss,  and 
that  the  State  Insurance  Company  was  not 
liable.  We  think  there  Is  no  escape  from  that 
conclusion. 

The  rights  of  the  mortgagee  are  Involved 
in  the  case.    In  view  of  the  conclusions  reach- 


Digitized  by  VjOOQ  l€ 


IGO 


122  NORTHWESTERN  REPORTER. 


(Mlno. 


ed  as  to  the  liability  of  appellant  for  the 
full  amount,  we  bare  no  occasion  to  discuss 
them. 

The  Judgment  below  is  In  all  respects  af- 
firmed. 


EVENER  MFO.  CO.  et  al.  t.  FINK  et  al. 
(Supreme  Court  of  Mlnneaota.     July  9,  1909.) 

SPECinC    PSBTOBIIANCX    ({    123*)— FlNDINOS— 

Fraud. 

In  an  action  for  specific  performance  of  a 
contract,  where  defendant  pleaded  that  the 
agreement  was  obtained  by  means  of  fraudulent 
representations,  a  finding  that  the  agreement 
was  obtained  through  representations  which 
were  in  part  untrue  and  promises  which  were 
not  intended  by  the  promisor  to  be  fully  carried 
out,  and  that  there  had  been  no  substantial  per- 
formance of  said  promise,  without  finding  what 
these  representations  or  promises  were,  or 
whether  the  representations  which  were  in  pan 
untrue  and  the  promises  which  were  not  intend- 
ed to  be  substantially  carried  out  were  material, 
and  where  it  is  not  shown  whether  the  failure 
to  perform  was  in  fact  substantial,  Is  insuffi- 
cient on  which  to  t>a8e  an  inference  of  fraud. 

[Ed.  Note.— For  other  cases,  see  Specific  Per- 
formance, Dec.  Dig.  i  123.*] 

Lewis,  J.,  dissenting. 

Appeal  from  District  Court,  St  Louis 
County;  Wm.  A.  Cant,  Jndge. 

Action  by  the  Evener  Manufacturing  Com- 
pany and  others  against  Miles  T.  Fink  and 
others.  Verdict  for  defendants.  From  an 
order  denying  a  new  trial,  plaintifrs  appeal. 
Reversed. 

J.  H.  Whitley  and  H.  J.  Orannls,  for  ap- 
pellants. Reynolds  &  McCleam,  for  respond- 
ents. 


PER  CURIAM.  Prior  to  January  12, 
1902,  two  brothers,  McGregor  by  name,  black- 
smiths by  trade,  Invented  an  evener  for 
vehicles.  About  that  time  they  made  appli- 
cation for  a  patent  on  this  invention.  In 
March  they  learned  that  their  application  had 
been  favorably  acted  upon.  One  Smith,  who 
did  business  In  the  name  of  the  Minnesota 
Loan  Company,  was  applied  to  for  financial 
assistance  to  manufacture  the  Invention. 
An  oral  agreement  was  reduced  to  writing. 
In  accordance  therewith  the  plaintiff  and 
appellant  company  was  organized.  It  was 
then  agreed  In  a  writing  to  be  referred  to  as 
"Exhibit  B,"  that  in  consideration  of  one 
dollar  and  other  valuable  considerations  the 
McGregors  "have  sold,  assigned,  and  trans- 
ferred over,  and  by  these  presents  do  sell, 
assign,  and  transfer"  unto  said  plaintiff  com- 
pany a  full  and  exclusive  right  to  said  in- 
vention, and  that  they  agreed  "that  they 
would  upon  the  Issuance  of  the  letters  pat- 
ent *  •  •  make  and  deliver  to  said  man- 
ufacturing company  a  good  and  sufllclent 
assignment"  to  said  Invention.  Subsequent- 
ly letters  patent  were  Issued  to  defendant 
Fink,  and  were  by  him  assigned  to  defend- 


ant and  respondent  company,  which  be  had 
organized  In  accordance  with  the  agreement. 
Defendant  company  is  a  going  concern,  and. 
has  been  since  the  date  of  its  org^anization. 
Plaintiff  corporation  brought  this  action  for 
specific  performance  of  its  contract  and  for 
Incidental  relief.  After  trial  the  court  found 
facts  consistent  with  this  statement. 

The  particular  finding  of  fact  whose  in- 
sufficiency is  here  challenged  is  the  fifth  and 
was  as  follows:  "That  the  agreement,  E^x- 
hibit  B,'was  obtained  by  the  Evener  Manu- 
facturing Company  from  the  McGregors 
through  and  by  means  of  representations 
which  were  in  part  untrue  and  promises 
which  were  not  intended  by  the  promisors 
to  be  fully  or  substantially  carried  out;  that 
during  all  of  said  times  the  said  McGregors 
were  unskilled  In  business,  and  were  almost 
entirely  without  means,  and  were  compelled 
to  look  to  others  for  such  capital  as  might 
be  necessary  to  enable  them  to  manufacture 
the  device  covered  and  described  In  their 
said  application  for  patent;  that  the  negotia- 
tions leading  up  to  the  execution  of  Exhibit 
B  were  conducted  by  said  McGregors  for  the 
purpose  and  with  the  hope  on  their  part  of 
securing  such  financial  assistance  as  might 
be  necessary  to  enable  them  to  engage  in  the 
manufacture  hereinbefore  referred  to;  that 
the  persons  with  whom  such  negotiations 
were  conducted  knew  the  said  McGregors 
were  without  money  and  that  they  were  un- 
skilled In  business:  that  such  persons  con- 
ceived the  plan  of  organizing  said  Evener 
Manufacturing  Company  as  an  instrumental- 
ity of  their  own,  which  it  was,  and,  through 
the  representations  and  promises  hereinbe- 
fore referred  to,  of  securing  to  themselves, 
without  rendering  any  substantial  considera- 
tion therefor,  a  large  interest  In  said  patent 
and  in  the  benefits  arising  therefrom,  and  of 
wrongfully  depriving  the  said  McGregors 
thereof;  that  said  McGregors  relied  upon 
said  representations  and  promises,  and  were 
thereby  misled  and  induced  to  execute  and 
deliver  said  agreement;  that  there  has  been 
no  substantial  performance  of  the  said  prom- 
ises, which  were  practically  the  only  consid- 
eration to  the  said  McGregors  for  the  execu- 
tion and  delivery  of  said  Exhibit  B." 

As  conclusions  of  law  the  court  directed 
that  judgment  be  entered  In  favor  of  defend- 
ant company  as  the  sole  and  exclusive  own- 
ers of  the  letters  patent,  and  that  none  of 
the  other  parties  were  to  have  any  Interest 
therein  or  lien  thereon.  None  of  the  parties 
who  were  named  In  and  who  signed  the 
original  writing  pursuant  to  which  the  plain- 
tiff company  was  organized  were  expressly 
made  parties  hereto.  None  of  the  defend- 
ants were  innocent  purchasers  for  value 
without  notice. 

A  consideration  of  this  finding  of  fact  has 
satisfied  us  that  it  does  not  state  facts  from 
which,  fraud,  as  that  term  is  used  in  law 


•For  otber  cuei  lee  lame  topic  and  lecaon  N  UMBER  Is  D«c.  ft  Am.  VlK*.  1907  to  date,  ft  Reporter  Indaxw 


Digitized  by  VjOOQ  l€ 


Uinn.) 


GL:NBS  t.  OLIVER  IRON  MINING  CO. 


161 


or  equity,  can  be  Inferred.  Nor  does  It  ap- 
pear from  the  facts  set  forth  In  that  finding 
that  it  vrould  have  been  Inequitable  to  have 
granted  plalntifls  the  relief  they  sought, 
apart  from  the  finding  with  respect  to  plaln- 
tlirs'  failure  to  perform.  The  court  finds 
that  the  agreement  was  obtained  through 
representations  which  were  In  part  untrue 
and  promises  which  were  not  Intended  by 
the  promisors  to  be  fully  or  substantially 
carried  out,  and  that  there  has  been  no  sub- 
stantial performance  of  said  promises.  What 
those  representations  or  promises  were  does 
not  appear.  Whether  the  representations 
which  were  In  part  untrue  and  the  promises 
which  were  not  intended  to  be  fully  or  sub- 
stantially carried  out  wo'e  material  or  not 
cannot  be  determined.  Whether  the  failure 
to  perform  was  In  fact  substantial  can  be 
conjectured  only. 

It  Is  unsatisfactory  and  undesirable  to  de- 
termine litigation,  carefully  conducted  as 
this  has  been,  on  anything  resembling  a 
technicality.  We  have  considered  the  find- 
ing In  the  light  of  the  record,  but  are  con- 
strained to  conclude  that  a  new  trial  must 
be  granted,  without  a  consideration  or  de- 
termination of  the  real  merits  of  the  litiga- 
tion. 

Reversed. 

LEWIS,  J.,  dissents. 


STATU  ▼.  BERMAN. 
(Sapieme  Coart  of  Minnesota.    July  8,  1909.) 
Cbiminai.  Law  (|  1169*) —Appeal  — Habm- 

I.ES8  Ebbob— Reception  of  Evidence. 
Error  in  receiving  incompetent  evidence  is 
withont    prejadice,    where    it    is    sabsequently 
stricken  out  and  the  jury  instructed  to  disre- 
gard it. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Uw,  Cent.  Dig.  |  3141 ;   Dec.  Dig.  {  1169.*] 

Appeal  from  District  Court,  Hennepin 
County;  Andrew  Holt,  Judge. 

Henry  Berman  was  convicted  of  petty  lar- 
ceny, and  from  an  order  denying  a  new  trial 
appeals.    Affirmed. 

Geo.  Harold  Smith,  for  appellant  George 
T.  Simpson,  Atty.  Gen.,  Al.  J.  Smith,  County 
Atty.,  and  John  F.  Bernhagen,  Asst  County 
Atty.,  for  the  State. 

PER  CURIAM.  The  defendant  was  in- 
dicted for  the  crime  of  grand  larceny,  and 
found  guilty  of  petty  larceny.  On  this  ap- 
peal from  an  order  denying  a  motion  for  a 
new  trial,  the  appellant  contends  that  the 
evidence  given  by  certain  accomplices  was  In- 
sufildently  corroborated,  and  that  the  error 
In  receiving  certain  Incompetent  evidence  was 
not  cured  by  the  fact  that  it  was  subsiequent- 
ly  stricken  out  and  the  jury  Instructed  to 
wholly  disregard  the  same.  The  corroborat- 
ing evidence  was  snlficient,  and,  tested  by 


the  rule  stated  in  State  v.  Towers  (Minn.) 
118  N.  W.  361,  the  error  in  receiving  the  in- 
competent evidence  was,  under  all  the  cir- 
cumstances, withont  prejudice. 
Order  affirmed. 


GLINBS  V.  OLIVER  IRON  MINING  CO. 
(Supreme  Court  of  Minnesota.    June  25,  1909.) 

1.  Masteb  and  Scbvant  (8  180*)— Injubies 
TO  Sebvant— NsoLiaENcx  or  Fellow  Sebv- 

ANTS. 

In  an  action  for  personal  injuries  It  is 
held  that  defendant,  in  the  operation  of  its 
railroad,  comes  within  the  statute  abrogating 
the  fellow-servant  rule  as  to  railroad  compa- 
nies. Kline  v.  Iron  Co.,  93  Minn.  63,  100  N. 
W.  681. 

[£2d.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  |  360;  Dec.  Dig.  I  180.*] 

2.  Mabteb  and  Servant  (8  231*)— iNjxniT  to 
Sbbvart— Reliance  on  Rules. 

The  injured  party,  a  brakeman  in  charge 
of  one  of  its  trains,  had  the  right,  while  in  the 
discbarge  of  his  duties,  to  rely  upon  all  warn- 
ings and  signals  required  to  be  given  by  the 
rules  of  the  company  or  adopted  by  common 
custom  for  the  protection  of  those  engaged  upon 
or  about  its  tracks. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  88  675-677 ;  Dec.  Dig.  {  231.*] 

3.  Masteb  and  Sebvant  (8  279*)— Injdbt  to 
Servant— Neqliqence  of  Otheb  EifPL0T£8 
—Evidence. 

The  evidence  sustains  the  charge  of  negli- 
gence on  the  part  of  other  employes  of  defend- 
ant in  not  complying  with  such  custom  and 
rules. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Dec.  Dig.  8  279.*] 

4.  Contributobt    Nkouokncb  —  Instbuc- 

TIONS. 

The  question  of  contributory  negligence 
and  assumption  of  risk  were  properly  suDmitted 
to  the  jury. 

5.  Reversible  Ebbob. 

No  reversible  errors  are  presented  by  the 
record. 

(Syllabus  by  the  Court) 

Appeal  from  District  Court  Itasca  County; 
W.  S.  McClenahan,  Judge. 

Actions  by  Rosanna  Glines  and  by  Archie 
Gllnes  against  the  Oliver  Iron  Mining  Com- 
pany. Actions  consolidated,  and  wrdicts  for 
plaintiff.  Defendant  moved  for  Judgment 
notwithstanding  the  verdicts  or  for  a  new 
trial,  and  from  an  order  denying  the  same 
it  appeals.    Affirmed. 

Joseph  B.  Cotton,  Frank  D.  Adams,  and  C. 
C.  McCarthy,  for  appellant.  John  R.  Helno 
and  Theo  Hollister,  for  respondent. 

BROWN,  J.  Archie  GUnes,  an  Infant  un- 
der the  age  of  21  years,  was  Injured  while 
In  the  employ  of  defendant  and  bis  mother 
brought  two  actions  against  the  company  to 
recover  damages  therefor,  one  In  her  own 
behalf  for  the  loss  of  services,  and  the  other 
as  his  guardian  for  bis  own  benefit  Both 
were  consolidated  and  tried  together  in  the 


•Tor  otbar  eases  ■••  same  topio  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  IWT  to  dato,  4  Baportar  Indexes 
122N.W.-11 


Digitized  by 


Google 


122  NORTHWESTEKN  REPORTEH. 


(Minn. 


court  below,  resulting  in  verdicts  for  plain- 
tiff in  each  case.  Defendant  thereafter  mov- 
ed for  Judgment  notwithstanding  the  ver- 
dicts or  for  a  new  trial,  and  appealed  from 
an  order  denying  the  same. 

The  facts  are  substantially  as  follows:  De- 
fendant, a  mining  corporation,  operated,  in 
connection  with  'the  principal  purpose  for 
which  it  was  Incorporated,  a  railroad  equip- 
ped with  engines  and  cars  suitable  for  the 
purpose.  On  the  occasion  of  the  accident 
complained  of  defendant  was  engaged  in 
stripping  one  of  the  mines  of  the  surface  of 
earth  covering  a  deposit  of  Iron  ore.  In  do- 
ing this  work  the  railroad  tracks  were  laid 
into  and  upon  the  tract  of  land  under  the 
surface  of  which  there  was  a  deposit  of  Iron 
ore,  and  from  thence  to  dumping  groirnds 
two  miles  distant  Two  tracks  were  con- 
structed for  this  purpose,  upon  one  of  which 
trains  loaded  with  earth  were  taken  from  the 
mine  to  the  dumping  ground,  and  upon  the 
other,  a  parallel  track,  empty  trains  were  re- 
turned to  the  mine  to  be  reloaded.  It  em- 
ployed in  this  work  10  trains,  consisting  of 
an  engine  and  from  15  to  20  cars  each, 
and  each  in  charge  of  an  engineer,  a  fire- 
man, and  a  brakeman.  Each  train  made 
in  the  neighborhood  of  10  trips  to  and  from 
the  mine  during  every  24  hours,  an  average 
for  all  trains  of  about  100  during  that  space 
of  time,  and  were  constantly  in  operation, 
both  day  and  night  A  train  would  be  tak- 
en to  the  mine,  there  loaded  by  means  of 
steam  shovels,  and  then  proceed  to  the  dump- 
ing grounds,  where  the  cars  would  be  un- 
loaded and  immediately  returned.  The  cars 
are  designated  In  the  record  as  "dump  cars," 
were  large  and  heavy,  and  carried  many  tons 
of  material.  They  were  so  constructed  that, 
by  raising  one  side  a  proper  distance,  the 
earth  and  material  therein  would  slide  out 
without  other  act  or  effort  on  the  part  of 
workmen.  The  tracks  proceeded  from  the 
mine  in  a  southerly  direction  some  distance, 
when  they  curved  to  the  west  then  curved 
to  the  south,  and  from  thence  on  to  the 
dumping  grounds,  and  were  distant  from 
each  other,  at  least  at  the  point  of  the  acci- 
dent involved  in  tiris  action,  about  nine  feet 
Returning  from  the  dump  each  train  would 
come  to  a  stop  at  a  point  a  short  distance 
from  a  certain  highway  bridge  extending 
over  the  tracks,  designated  In  the  record  as 
"Gayley  Avenue  bridge,"  and  located  near 
rhe  first  curve  In  the  track  as  it  leads  from 
the  mine.  There  a  crew  of  employes  would 
"right"  the  cars — that  is,  readjust  them  prop- 
erly for  reloading — ^after  which  they  would 
proceed  to  the  mine. 

Certain  regulations  designed  to  protect 
employes  from  injury  had  been  adopted  by 
the  company  respecting  the  operation  of 
these  trains.  Each  engine  was  equipped  with 
a  front  headlight,  with  one  also  upon  the 
tender  facing  the  rear  of  the  engine.  Bach 
brakeman  was  required  to  place  a  lantern  or 
red  light  on  the  rear  car  of  his  train,  and  by 


the  rules  of  the  company  was  held  respon- 
sible for  its  presence  at  all  times  during  the 
progress  of  the  work.  It  is  claimed  by  plain- 
tiff that  a  uniform  custom  made  it  the  dut; 
of  the  engineer,  as  he  proceeded  from  the 
mine  with  loaded  cars,  to  sound  the  whistle 
o(  his  engine  as  he  approached  Gayley  Ave- 
nue bridge  as  a  warning  to  trainmen  and' 
those  who  might  be  engaged  on  the  other 
Bide  of  the  bridge  "righting"  cars  of  an  in- 
coming train.  This  custom  was  disputed  by 
defendant  Ollnes,  as  already  stated,  was 
in  the  employ  of  defendant  in  the  capacity 
of  brakeman,  and  as  such  had  charge  of  one 
of  these  trains,  working  nights.  On  the  night 
of  November  10,  1907,  the  train  of  which  he 
had  charge,  after  having  proceeded  with  load- 
ed cars  to  the  dumping  ground,  returned  to 
the  usual  stopping  place  near  Gayley  Avenue 
bridge,  and  came  to  a  stop  for  the  purpose 
of  permitting  the  righting  and  readjusting  of 
the  cars.  Gilnes  immediately  stepped  from 
the  engine,  where  be  was  required  to  be  when 
the  train  was  in  motion,  and  crossed  over 
the  adjoining  track,  upon  which  loaded  trains 
came  from  the  mines,  to  ascertain,  by  look- 
ing back,  whether  the  lantern  was  properly 
lighted  and  in  place  at  the  rear  end  of  his 
train.  This  occupied  bis  attention  but  a  few 
moments.  While  returning  to  his  engine  he 
was  struck  by  the  train  on  the  outgoing 
track  and  severely  injured. 

These  actions  were  thereafter  brought  to 
recover  damages  for  the  Injuries  so  received, 
and  were  predicated  upon  the  alleged  neg- 
ligence of  defendant  in  three  respects,  name- 
ly: "First,  that  in  view  of  the  age  and  in- 
experience of  Gllnes  It  was  defendant's  duty 
properly  to  warn  and  instruct  him  of  the  dan- 
gers of  bis  employment  and  that  it  failed 
so  to  do;  second,  that  the  engineer  of  the 
train  which  ran  into  and  injured  Gllnes  was 
negligent  In  not  sounding  the  whistle  of  his 
engine  as  he  approached  Gayley  Avenue 
bridge,  in  accordance  with  the  custom  uni- 
formly followed;  and,  third,  that  the  brake- 
man  In  charge  of  that  train  was  guilty  of 
negligence  In  falling  to  place  a  red  light  on 
the  end  car  thereof  as  required  by  the  rules 
of  the  company — ^by  reason  of  all  of  which 
Gllnes  received  his  injuries.  Defendant  an- 
swered, denying  the  alleged  negligence,  and 
pleaded  in  defense  that  Gllnes,  at  the  time 
he  entered  Its  service,  was  familiar  with  all 
the  dangers  and  risks  of  the  employment  and 
therefore  assumed  them,  and  that  bis  injury 
was  caused  solely  by  his  contributory  negll- 
grence.  All  questions  and  issues  raised  by  the 
pleadings  were  submitted  to  the  Jury  under 
full  and  carefully  measured  Instructions,  and 
the  verdict  for  plaintiff  affirms  the  n^llgencv 
of  defendant,  and  negatives  assumption  of 
risks  and  contributory  negligence  on  the 
part  of  Gllnes. 

The  principal  question  discussed  by  coun- 
sel for  appellant;  on  the  oral  argument  was 
in  support  of  the  contention  that  the  trial 
court  erred  in  refusing  to  direct  a  verdict  for 


Digitized  by  VjOOQ  l€ 


MinnJ 


QLINE9  T,  OLIVER  IRON  MINIKO  CO. 


163 


tiefendcnt  at  the  conclusion  of  the  trial. 
That  the  court  erred  In  this  respect  la  snp- 
ported  by  an  elaborate  and  earnest  argument 
that  the  evidence  wholly  falls  to  show  action- 
able negligence,  but  does  affirmatively  show 
contributory  negligence  and  assumption  of 
risk  on  the  part  of  Gllnes.  We  have  examin- 
ed the  briefs  and  record  with  considerable 
care,  with  the  result  that  in  our  opinion  the 
questions  referred  to  were  properly  submitted 
to  the  Jury.  The  record  is  very  yoluminous, 
and  it  would  serve  no  useful  purpose  to  enter 
into  an  extended  discussion  of  the  evidence. 
Gllnes,  the  injured  party,  was  at  the  time  of 
the  accident  between  17  and  18  years  of  age, 
and  the  evidence  tends  to  show  that  he  was 
placed  at  this  work  without  previous  warn- 
ings or  Instructions  from  defendant  of  the 
dangers  and  perils  Incident  thereto.  That 
the  work  was  attended  with  extreme  dangers 
to  life  and  limb  is  too  apparent  for  argument. 
Trains  upon  this  road  were  in  constant  oi)er- 
atlon  day  and  night,  and  closely  followed 
each  otber  in  and  out  of  the  mine  at  all 
times.  The  work  was  carried  on  with  haste, 
and  the  expeditious  performance  of  the  du- 
ties of  each  train  crew  was  essential  to  pre- 
vent tying  up  or  delaying  the  whole  enter- 
prise; and,  while  the  evidence  tending  to 
show  the  previous  knowledge  and  experience 
of  Gllnes  Is  strong  and  somewhat  persuasive, 
we  concur  with  the  trial  court  that  whether 
warnings  or  instructions  should  have  been 
given  him  by  defendant  was  a  proper  ques- 
tion for  the  Jury  to  determine. 

Whether  the  defendant's  servants  were  neg- 
ligent in  not  giving  the  usual  signals  of  the 
approach  of  the  train  which  struck  Gllnes 
was  also  for  the  Jury.  That  Gllnes  had  the 
right  to  rely  upon  an  observance  of  the  cus- 
tom of  sounding  the  whistle  of  a  train  ap- 
proaching the  bridge,  and  on  the  exercise  of 
due  care  on  the  part  of  the  brakeman  in 
charge  thereof  to  place  a  red  light  on  the  end 
car,  there  can  be  no  serious  doubt  within  our 
decisions.  Jordan  v.  Railway  Co.,  68  Minn.  8, 
r>9  N.  W.  633,  49  Am.  St.  Rep.  486;  Floan 
r.  Railway  Co.,  101  Minn.  118,  111  N.  W.  957; 
Joyce  v.  Railway  Co.,  100  Minn.  225,  110  N. 
W.  975,  8  L.  R.  A.  (N.  S.)  756;  Hooper  v. 
Railway  Co.,  80  Minn.  400,  83  N.  W.  440.  The 
evidence  tends  to  show  a  custom  of  sounding 
the  whistle  at  the  bridge,  and  a  failure  to 
observe  It,  and  also  tends  to  show  that  a  red 
light  was  not  displayed  on  the  approaching 
train,  as  required  by  the  rules  of  the  com- 
pany. The  engine,  was  pushing  this  train, 
and  a  red  light  should  have  been  displayed 
on  the  front  end  of  the  forward  car.  Gllnes 
testified  that  as  he  alighted  from  his  engine 
be  looked  down  the  track  In  the  direction 
from  which  trains  came  from  the  mine  on  the 
adjoining  track  and  discovered  no  light,  and 
did  not  hear  the  whistle,  though  the  engineer 
of  that  train  testlfled  that  he  sounded  it  at 
the  usual  place.  It  was  a  dark  night,  and 
obviously  It  was  importnnt  to  the  safety  of 
einploy«>s  engaged  upon  or  about  the  rail- 


road tracks  that  the  usual  warning  signals 
be  given ;  and,  though  the  evidence  upon  this 
as  well  as  on  the  other  branches  of  the  case 
was  conflicting,  it  presented  a  question  for 
the  consideration  of  the  Jury. 

Nor  will  the  evidence  justify,  as  a  conclu- 
sion of  law,  the  contention  that  Glines  either 
assumed  the  risks  Incident  to  his  employment 
or  was  guilty  of  contributory  negligence.  We 
discover  no  sufficient  basis  for  the  claim,  .to 
be  declared  as  a  matter  of  law,  that  be  as- 
sumed the  risks,  in  the  evidence  that  the  red 
light  on  the  forward  end  of  the  train  some- 
times became  extinguished,  of  which  fact  it 
1b  claimed  Gllnes  had  notice,  nor  In  the  evi- 
dence that  he  solicited  this  position,  or  in 
that  tending  to  show  the  extent  of  his  experi- 
ence in  other  departments  of  the  work. 
Gllnes  had  the  undoubted  right  to  rely  In  a 
measure  at  least  upon  all  customary  warnings 
and  signals  for  his  protection,  and  It  cannot 
on  the  evidence  before  us  be  held  as  a  matter 
of  law  that  he  voluntarily  waived  or  aban- 
doned his  right  to  such  protection. 

The  contention  that  he  was  guilty  of  con- 
tributory negligence  In  going  upon  the  ad- 
joining track  to  ascertain  the  presence  or  ab- 
sence of  the  red  light  upon  bis  own  train  was 
properly  submitted  to  the  Jury.  He  testified 
that  when  he  left  his  engine,  when  It  stop- 
ped at  the  point  for  readjusting  the  cars  for 
reloading,  he  looked  and  listened  for  an  ap- 
proaching train  on  the  adjoining  track  and 
neither  heard  nor  saw  one ;  and  while  it  ap- 
pears fairly  conclusive  that  the  headlight  on 
the  tank  of  the  approaching  engine,  backing 
up,  was  lighted,  whether  his  view  thereof 
was  obstructed  by  the  string  of  cars  being 
pushed  toward  him  was  clearly  a  question  of 
fact.  He  was  not,  in  imsslng  over  the  oppo- 
site track  to  ascertain  whether  his  red  light 
was  in  order,  outside  of  his  duties,  nor  neces- 
sarily deprived  of  the  right  to  rely  upon  the 
obligation  of  his  fellow  servants  to  warn 
him  In  the  usual  manner  of  their  approach. 
He  could.  It  is  true,  have  proceeded  to  the 
rear  of  his  train  to  gain  the  desired  informa- 
tion; but  it  cannot  be  said  as  a  matter  of 
law  that  he  was  negligent  In  not  adopting 
that  course.  Upon  the  whole  record,  there- 
fore, we  affirm  the  action  of  the  trial  court 
in  sending  the  case  to  the  jury. 

This  brings  us  to  the  assignments  present- 
ing certain  alleged  errors  in  the  admission 
and  exclusion  of  evidence  and  in  the  instruc- 
tions and  refusals  to  Instruct  the  Jury.  To 
discuss  these  assignments  separately — 80  or 
more — would  extend  this  opinion  Into  a  vol- 
ume and  then  be  of  no  practical  value  as  a 
precedent.  We  have  carefully  examined 
them  all,  and  content  ourselves  with  the 
statement  that  no  substantial  or  reversible 
error  Is  presented.  The  charge  of  the  court, 
taken  as  a  whole,  was  a  comprehensive  pres- 
entation of  the  issues  to  the  Jury  in  under- 
standable form  and  language,  and  Included 
every  question  proper  to  be  given  under  the 
pleadings  and  evidence.    There  was  no  error 


Digitized  by  VjOOQ  l€ 


164 


122  NORTHWESTEBN  REPORTER. 


(Minn. 


in  the  charge  to  the  effect  that  defendant  was 
operating  a  railroad  within  the  meaning  of 
our  statutes  abrogating  the  fellow-servant 
doctrine  as  to  railroad  companies.  The  case 
In  this  respect  comes  within  Kline  v.  Minn. 
Iron  Co.,  93  Minn.  63,  100  N.  W.  681. 

The  evidence  sustains  the  verdict  in  both 
cases,  and  the  damages  awarded  are  not  ex- 
cessive. 

Order  aflarmed. 


ST.   JOHN  T.   SINCLAIR. 

(Supreme  Court  of  Minnesota.    June  25,  1909.) 

Logs  and  Loooina  (|  4*)— Pasoi.  Contbaoi 
—License. 

Todd  and  wife  were  owners  as  Joint  ten- 
ants of  certain  land.  Todd,  for  a  valuable  con- 
sideration, and  in  the  presence  of  his  wife,  and 
with  her  express  consent,  granted  to  one  New- 
man a  written  permit  to  enter  upon  the  land 
and  cut  and  remove  therefrom  all  timber  stand- 
ing thereon.  Both  busbaod  and  wife  thereafter 
joined  in  executing  a  written  permit  to  plaintiff, 
thereby  authorizing  him  to  cut  and  remove  the 
timber  theretofore  granted  to  Newman.  Plain- 
tiff had  actual  notice  of  the  Newman  permit. 
It  is  held  that  the  express  assent  of  Mrs.  Todd 
to  the  Newman  i>ermit,  though  not  valid  as  a 
contract  of  sale,  because  not  in  writing,  amount- 
ed to  a  license  from  her,  and  a  protection  to 
Newman  or  his  assignee  for  acts  done  thereun- 
der before  notice  of  its  revocation. 

[EM.  Note. — For  other  cases,  see  Logs  and 
Logging,  Cent  Dig.  {  13;    De&  Dig.  {  4.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Washington 
County;   P.  H.  Stolberg,  Judge. 

Action  by  Edwin  St  John  against  John 
Sinclair.  Judgment  for  defendant,  and  plain- 
tiff appeals.    Affirmed. 

J.  N.  Searles,  for  appellant  J.  0.  Netha- 
way,  for  respondent 

BROWN,  J.  Action  to  recover  the  value 
of  certain  timber  alleged  to  have  been  wrong- 
fully and  unlawfully  cut  and  removed  from 
the  land  described  In  the  complaint  De- 
fendant had  Judgment,  and  plaintiff  appealed. 

The  facts,  as  disclosed  by  the  findings  of 
the  trial  oonrt,  are  as  follows:  Thomas 
Todd  and  Ella  Todd,  husband  and  wife,  were 
the  owners  of  the  land  as  joint  tenants. 
Some  time  prior  to  October  22,  1903,  Thomas 
Todd,  for  a  valuable  consideration.  In  the 
presence  of  his  wife,  and  with  her  express 
consent,  signed  and  delivered  to  one  New- 
man a  logging  permit,  authorizing  him  to 
enter  upon  the  land  at  any  time  prior  to  May 
1,  1904,  and  cut  and  remove  therefrom  for 
his  own  use  and  benefit  "all  the  pine  trees, 
logs,  or  other  timber  suitable  for  logs."  For 
a  better  understanding  of  the  case  we  Insert 
a  copy  of  the  permit:  "In  consideration  of 
the  sum  of  two  hundred  and  twenty-five  dol- 


lars ($225.00)  to  me  In  hand  paid,  the  receipt 
of  which  is  hereby  acknowledged,  I  hereby 
grant,  bargain,  and  sell  unto  F.  A.  Newman 
the  right,  privilege,  and  permission  to  enter 
upon  the  following  described  land,  situated 
in  Pine  county,  Minn.,  to  wit:  The  N.  W. 
\i  of  section  8,  In  town  41,  range  17  west, 
at  any  and  all  times  prior  to  May  1,  1904. 
when  this  permit  shall  cease  and  terminate, 
and  during  said  time  to  cut  and  remove  for 
bis  own  use  and  benefit  all  the  pine  trees, 
logs,  or  other  timber  suitable  for  logs,  stand- 
ing or  being  thereon.  Thomas  Todd.  Wit- 
ness: Maysel  Todd."  On  October  22,  1903, 
Newman,  for  a  valuable  consideration,  as- 
signed all  "his  right,  title,  claim,  and  interest 
in  and  to  the  logs  and  timber  described"  In 
this  permit  to  defendant  herein.  Defendant 
obtained  the  assignment  in  good  faith,  and 
had  no  knowledge  of  any  Imperfections  there- 
in. Defendant  thereafter,  and  acting  under 
the  permit  and  assignment  thereof,  and  prior 
to  the  expiration  thereof,  entered  upon  the 
land  and  during  the  winter  of  1903-04  cut 
and  removed  therefrom  the  logs  and  timber 
for  which  this  action  Is  brought 

Plaintiff  founds  his  action  upon  the  follow- 
ing facts :  On  November  10, 1903,  a  few  weeks 
after  the  execution  and  delivery  of  the  New- 
man permit,  Todd  and  wife  joined  in  the 
execution  of  a  permit  to  plaintiff,  thereby  au- 
thorizing him  to  enter  upon  the  land  and  cut 
and  remove  the  timber  theretofore  granted 
to  Newman.  At  the  time  this  permit  was 
granted  plaintiff  "had  full  knowledge  and 
information"  of  the  outstanding  permit  to 
Newman,  and  of  the  fact  that  it  bad  been  as- 
signed to  defendant.  So  far  as  the  record 
before  us  discloses,  the  findings  are  silent  up- 
on the  subject;  neither  Newman  nor  de- 
fendant was  informed,  prior  to  the  time  the 
timber  was  cut,  of  the  permit  to  plaintiff; 
and  it  must  be  presumed  that  defendant  pro- 
ceeded in  good  faith  in  cutting  and  removing 
the  timber  without  notice  of  plalntlflTs  rights. 
Upon  these  facts  the  trial  court  ordered 
judgment  for  defendant 

Counsel  for  plaintiff  contends  that  inas- 
much as  the  Newman  permit  was  signed  by 
Todd  alone,  and  did  not  upon  its  face  purport 
to  grant. the  Interests  of  his  Joint  owner,  his 
wife,  Newman  acquired  a  half  interest  In 
tiie  timber  only;  that  the  permit  amounted 
to  a  sale  of  an  interest  in  the  land,  and,  the 
wife's  assent  thereto  not  having  been  in 
writing,  was  void  under  the  statute  of  frauds 
as  to  her  Interest ;  and-  therefore,  there  be- 
ing no  question  as  to  the  validity  of  plain- 
tiff's permit,  that  he  is  entitled  to  judgment 
for  the  wife's  Interest,  namely,  one-half  the 
value  of  the  timber  removed.  The  conten- 
tion cannot,  on  the  facts  presented,  be  sus- 
tained. The  Newman  permit,  to  which  Mrs. 
Todd  expressly  assented,  granted  the  right 
to  cut  and  remove  all  the  timber  standing  or 


•For  other  casei  tea  tame  topic  anil  gecUon  NUMBER  bi  Dec.  *  Am.  Dlga.  UOT  to  date,  ft  Reporter  Indexes 


Digitized  by 


Google 


Minn.) 


STATE  V.  IVERSON. 


166 


being  npon  the  land.  Wlthont  stopping  to 
consider  whetber  tbe  sale  by  her  co-owner  of 
all  the  timber  would  bind  her  (Baker  t. 
Wheeler,  8  Wend.  505,  24  Am.  Dec.  66 ;  Brad- 
ley V.  Boynton,  22  Me.  287,  39  Am.  Dec.  682; 
Alford  T.  Bradeen,  1  Nev.  228),  it  is  clear  un- 
der the  authorities  that  her  assent,  though 
not  in  writing,  as  required  by  the  statute  of 
frands,  and  therefore  void  as  a  contract  of 
sale,  amounted  to  a  license  to  enter  the  land 
for  the  purpose  of  severing  and  remoying  the 
timber,  and  as  such  was  valid,  and  a  com- 
plete protection  to  the  licensee  or  his  as- 
signee until  revoked  in  some  manner  author- 
ized by  law  (Keystone  Lumber  Co.  T.  Kol- 
man.  91  Wis.  465,  69  N.  W.  166,  34  L.  R.  A. 
821,  59  Am.  St  Rep.  905;  Drake  v.  Wells, 
93  Mass.  141;  Antrim  Iron  Co.  v.  Anderson, 
140  Mich.  702,  104  N.  W.  319,  112  Am.  St 
Rep.  434;  Welever  v.  Advance  Shingle  Co., 
34  Wash.  331,  75  Pac.  863 ;  Wilson  v.  Fuller, 
58  Minn.  149,  59  N.  W.  988).  Such  licenses, 
t>elng  purely  personal,  are  revocable  at  the 
pleasare  of  the  person  granting  them,  ex- 
cept, perhaps.  In  those  cases  where  granted 
for  a  valuable  consideration,  and  an  Interest 
in  the  Bubject-matter  becomes  vested  in  the 
licensee. 

A  revocatioB,  where  authorized,  results 
from  the  death  of  the  grantor,  or  by  a  sub- 
sequent sale  or  conveyance  of  th^  property 
to  a  third  person,  and  perhaps  from  any  act 
Inconsistent  with  an  intention  that  the  grant- 
ed privilege  should  continue.  Where,  how- 
ever, the  licensee  acts  upon  the  license,  it 
becomes  executed,  and  cannot  thereafter  be 
revoked.  Wilson  v.  Fuller,  68  Minn.  149,  69 
N.  W.  988;  25  Cyc.  650,  and  cases  cited, 
"^he  record  in  this  case  falls  to  show  a  revo- 
cation by  Mrs.  Todd  prior  to  the  time  de- 
fendant altered  upon  the  land  and  severed 
and  removed  the  timber  therefrom.  The  sub- 
sequent valid  permit  to  plaintiff,  executed 
by  both  the  Todds,  would  undoubtedly  have 
constituted  a  revocation,  had  It  been  brought 
to  the  notice  of  defendant  before  he  remov- 
ed the  timber.  But  so  far  as  the  record 
shows  no  notice  of  the  second  permit  was 
ever  communicated  to  him,  and  he  proceeded 
in  good  faith  to  cut  the  timber  without  no- 
tice of  its  existence,  or  of  any  claim  of  right 
on  the  part  of  plaintifT.  While  an  ordinary 
license  to  enter  upon  the  lands  of  the  grantor 
requires  no  prior  notice  of  an  intention  to 
revoke  aa  to  the  future,  a  revocation  rightly 
made  cannot  act  retrospectively,  and  render 
an  act  done  by  authority  of  the  license,  and 
therefore  lawful,  wrongful  and  unlawful. 
Plaintiff  had  actual  notice  of  the  Newman 
permit  and  is  in  no  better  position  than  Mrs. 
Todd  wonld  be,  had  she  brought  this  action. 
Clearly,  under  the  facts  stated,  she  could 
not  recover. 

Jndgment  affirmed. 


STATE  ex  rel.  BOARD  OF  COM'RS  OF 

CARLTON   COUNTY   v.    IVERSON, 

SUte  Auditor. 

(Supreme  Court  of  Minnesota.     July  2,  190^.) 

Taxation  (|  276*)— MANaFACruRiNO  Cobpo- 

RATIORS  —  PEBSONAL    PBOPEBTY  —  PI.ACE    OF 

■  Taxation. 

Certain  property  belonging  to  the  Cloqnet 
Tie  &  Post  Company,  a  Minnesota  corporation 
doing  business  at  Cloquet,  in  Carlton  county, 
held  assessable  for  taxation  In  that  county, 
though  manufactured  in  St.  Louis  county  and 
stored  therein  for  shipment  direct  to  purchasers ; 
it  not  appearing  that  the  owner,  a  manufacturer, 
had  an  established  place  of  business  in  St.  Louis 
county. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  |  467 ;  Dec.  Dig.  |  276.*] 

(Syllabus  by  the  Court) 

Certiorari  by  the  State,  on  the  relation  of 
the  Board  of  Commissioners  of  Carlton  Coun- 
ty, against  Samuel  G.  Iverson,  State  Auditor, 
to  review  an  order.    Judgment  entered. 

Clayton  J.  Dodge,  for  relators.  George  T. 
Simpson,  ClifTord  L.  Hilton,  and  WllUam  J. 
Stevenson,  Special  Counsel,  for  respondents. 

BROWN,  J.  Certiorari  to  review  an  order 
of  the  State  Auditor  fixing  the  taxable  situs 
of  certain  personal  property.  The  facts  are 
as  follows:  The  Cloquet  Tie  &  Post  Com- 
pany Is  a  Minnesota  corporation,  located  and 
doing  business  at  Cloquet,  in  Carlton  county. 
It  Is  engaged  In  manufacturing  and  selling 
on  the  market  railroad  ties,  fence  posts,  tel- 
egraph and  telephone  poles,  and  spruce  pulp- 
wood,  obtaining  timber  and  material  therefor 
from  land  located  in  both  St.  Louis  and  Carl- 
ton counties.  Its  business  is  all  conducted 
from  its  offices  in  Cloquet,  and  all  purchases, 
sales,  and  contracts  are  made  at  that  place. 
It  sends  crews  of  men  upon  Its  lands  in  both 
counties,  who  cut  down  trees  and  manufac- 
ture therefrom  its  products,  ties,  posts,  and 
poles,  which  are  stored  at  or  near  conven- 
ient railroad  facilities.  When  sold,  the  ties, 
posts,  or  poles  are  shipped  directly  to  pur- 
chasers from  the  point  where  prepared,  oi* 
where  piled  or  stored  near  the  railroads.  It 
maintains  no  office,  so  far  as  concerns  this 
case,  for  the  transaction  of  any  business  In 
St  Louis  county,  and  the  only  business  con- 
ducted therein  is  the  cutting  and  finishing 
of  Its  ties,  etc.  During  the  year  for  which 
the  taxes  In  question  were  assessed  It  had 
cut  In  the  manner  here  outlined  a  large  num- 
ber of  ties,  posts,  and  poles  In  St  Louis  coun- 
ty, where  they  were  stored  ready  for  ship- 
ment direct  to  purdiasers.  They  were  as- 
sessed for  taxation  In  St  Louis  county,  an* 
also  In  Carlton  county.  Application  was 
thereafter  properly  made  to  the  State  Audi- 
tor to  determine  their  taxable  situs,  and  he- 
held  that  they  were  properly  assessed  in  St! 
Louis  county,  and  the  assessment  In  Carl- ' 
ton  county  was  ordered  canceled.    The  boardi 


•»or  other  caMs  see  nma  topic  and  section  NUMBER  in  Ote.  k  Am.  Digs.  1907  to  daU,  &  Reporter  Indexes. 

Digitized  by  VjOOQ  l€ 


1C6 


122  NORTHWESTERN  REFOKTEE. 


(Mi  nil. 


of  connty  commlBsIoners  of  that  coanty  then 
«aed  out  this  writ  to  review  the  decision  so 
Jiiade. 

We  are  of  the  opinion  that  the  State  Aa- 
ilitor  erred  in  holding  that  this  particular 
property  was  taxable  In  St.  Louis  county. 
In  all  other  respects  his  decision  was  In  har- 
mony with  the  statutes  and  the  decisions  of 
this  court  In  similar  cases.  Section  822,  Rev. 
Laws  1905,  provides  that  personal  property 
pertaining  to  the  business  of  a  manufacturer 
shall  be  listed  for  taxation  in  the  "town  or 
district  where  his  business  is  carried  on." 
There  Is  no  question  In  this  case^  under  the 
facts  stated  In  the  Auditor's  return,  that  the 
owner  of  this  property,  the  Cloquet  Tie  & 
Post  Company,  carried  on  its  bosiness  at 
Cloqnet,  In  Carlton  county.  Its  office  was  lo- 
cated and  Its  officers  transacted  the  business 
of  the  company  at  that  place.  It  is  not 
claimed  that  it  bad  any  business  office  In  St 
Louis  connty,  except  a  small  general  store 
In  no  way  connected  with  the  property  In 
■jnestion,  or  possessing  authority  to  sell  the 
s.'ime;  but  the  contention  is,  and  this  was 
ilie  theory  of  the  Auditor's  decision,  that  be- 
cause of  the  fact  that  It  sent  crews  of  men 
into  the  woods  of  St  Louis  county,  who  there 
manufactured  the  ties,  posts,  and  poles  from 
the  standing  timber,  leaving  a  finished  prod- 
uct ready  for  the  market  that  the  company 
was  doing  business  in  tliat  county,  as  well 
as  in  Carlton  county,  within  the  meaning  of 
the  statute,  and  therefore  taxable  in  St 
Louis  county,  under  the  rule  stated  In  State 
V.  Clark,  64  Minn.  556,  67  N.  W.  1144.  The 
statute  should  not  be  construed  so  broadly. 
Its  purpose  was  In  the  interests  of  the  tax- 
payer concerned,  and  to  secure  to  manufac- 
turers, so  far  as  practicable,  the  right  to 
have  their  property  assessed  for  taxation  at 
the  place  where  their  business  was  conduct- 
ed, precisely  as  the  individual  has  the  right 
to.  have  his  assessment  made  at  the  place 
of  his  residence.  Manufacturing  concerns 
like  this  company  necessarily  have  property 
located  at  various  places,  and  to  tax  it 
irherever  found  would  work  an  Injustice  and 
hardship.  So  the  statute  says,  in  effect,  that 
It  shall  be  assessed  for  taxation  at  the  place 
of  business  of  the  owner. 

It  Is  quite  true  tbat  such  a  concern  may 
cajRT  on  business  at  different  places  in  the 
state,  in  which  ease  the  property  pertaining 
to  each  establishment  is  taxable  at  that 
(tolnt  Such  was  the  situation  in  State  t. 
Clark.  64  Minn.  556,  67  N.  W.  1144.  It  there 
appeared  tbat  Clark  resided  and  carried  on 
ills  principal  business  at  St  Clond,  though 
he  operated  a  branch  office  at  Minneapolis, 
trbere  logs  were  manufactured  into  lumber 
and  sold  from  an  office  located  in  that  city. 
Such,  however,  is  not  the  case  at  bar.  Here 
the  compan}-'8  whole  business  was  transact- 
ed at  Cloquet  It  cannot  be  said  that  it  car- 
ried on  business  In  St  Louis  county  merely 


because  Its  employes  were  sent  Into  that 
county  to  manufacture  posts  and  poles  from 
the  standing  timber.  These  employes  were 
hired  laborers,  and  it  does  not  appear  either 
that  they  bad  authority  to  or  ever  did  sell 
or  otherwise  dispose  of  any  of  the  products 
of  their  labor.  For  aught  that  appears  from 
the  record,  all  this  was  done  from  the  home 
office  of  the  company  and  at  its  place  of  busi- 
ness in  Cloquet.  This  view  of  the  question  Is 
sustained  by  State  v.  Dunn,  86  Minn.  301, 
90  N.  W.  772.  The  lUinois  and  Michigan 
cases  cited  by  the  state  are  not  opposed  to 
this  conclusion.  The  decisions  in  the  Illinois 
cases  seem  to  be  predicated  upon  the  theory 
of  this  court  in  State  v.  Clarke,  supra,  name- 
ly, that  a  manufacturing  concern  may  have 
two  or  more  "places  of  business"  within  the 
meaning  of  the  statute.  The  Wisconsin  cas- 
es cited  construed  statutes  of  that  state  in 
reference  to  nonresident  property  owners 
and  are  not  in  point 

Our  conclusion  is  that  the  posts  and  poles 
in  question  were  properly  assessed  In  Carl- 
ton county,  and  it  is  ordered  that  the  assess- 
ment there  made  be  restored  to  the  tax  rolls, 
and,  further,  that  the  assessment  of  the  same 
property  in  St  Louis  county  be  canceled  and 
set  aside. 

Let  Judgment  be  entered  accordingly. 


PLEINS  T.  WACHENHEIMER  et  aL 
(Supreme  Court  of  Minnesota.     July  2,  1909.) 

1.  AcnoR  (S  48*)— JoiNDEB  OF  Oauses. 

Several  causes  of  action,  legal  or  etjaitable. 
arising  out  of  the  same  contract  or  transaction, 
and  not  inconsistent,  may,  nnder  sectiou  4154. 
Rev.  Laws  1905,  lie  united  In  the  same  com- 
plaint where  they  affect  all  the  parties  to  the 
action,  though  all  be  not  affected  alike. 

[ESd.  Note.— For  other  cases,  see  Action,  Cent. 
Dig.  {  490;   Dec.  Dig.  |  «ij5] 

2.  EviDENCB   a   459*)  — Pabol   Evidence  — 
Parties  to  Contbact. 

A  person  who  enters  into  a  contract  with 
another  and  causes  it  to  be  reduced  to  writing 
in  the  name  of  his  agent  may  l>e  identified  by 
parol  evidence  as  the  real  party  in  interest  and 
thus  subjected  to  liability  thereon. 

[£>1.  Note.— For  other  cases,  see  Ehridence. 
Cent  Dig.  |  ^112;  Dec  Dig.  t  459.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court  Ramsey  Coun- 
ty ;  William  Louis  Kelly,  J\x6ge. 

Action  by  Rudolph  Pleins  against  Morris 
Wachenhelmer  and  others.  From  an  order 
sustaining  a  demurrer  to  the  complaint, 
plaintiff  appeals.    Revoked. 

Tbos.  J.  McDermott  and  G.  S.  Ives,  for  ap- 

liellant    Ambrose  Tlghe,  for  respondents. 

BROWN,  J.  Defendant  Locke  intcrpostnl 
a  demurrer  to  plaintiff's  amended  complaint, 
specifying  aa  grounds  thereof  (1)  that  several 


•For  other  cases  uee  <am»  topic  and  ■action  NUMBBR  In  D«c.  *  Am.  Dlgr,  U07  to  data,  ft  Reporter  Indexea 


Digitized  by  VjOOQ  l€ 


Minn.) 


PLEINS  V.  WACIIENHEIMER. 


IC" 


causes  of  action  were  Improperly  united,  and 
1 2)  tliat  the  facts  therein  stated  do  not  con- 
stitute a  cause  of  action;  and  plaintiff  ap- 
pealed from  an  order  sustaining  the  same. 

The  action  is  to  recover  damages  for  the 
■■reach  of  a  contract  alleged  to  have  been 
entered  into  between  plaintlfT  and  defendant 
Locke,  which  for  the  convenience  and  at  the 
instance  of  Locke  was  made  In  the  name  of 
defendant  Wacheoheimer,  who  the  complaint 
alleges  was  the  agent  of  Locke.  The  com- 
plaint alleges:  "That  on  the  16th  day  of  Oc- 
tober, A.  D.  lOOG,  a  contract  In  writing  was 
executed  by  this  plaintiff  and  the  defendant 
Wachenheimer,  a  copy  of  which  Is  hereto  an- 
nexed, marked  'Exhibit  A,'  and  made  a  part 
uf  this  complaint  That  all  the  negotiations 
for  said  contract  were  made  between  this 
plaintiff  and  the  defendant  Locke,  acting  in 
bis  own  behalf,  and  that  all  the  matters  stat- 
<>d  in  said  contract  were  agreed  upon  between 
this  plaintiff  and  said  Locke,  acting  in  his 
own  b^alf  aforesaid,  prior  to  the  execution 
of  said  contract  That  thereupon  said  Locke 
•-ansed  said  contract  to  be  prepared  in  ac- 
cordance with  the  terms  of  said  agreement, 
with  the  exception  that  he  cauted  the  name 
of  said  defendant  Wachenheimer  to  be  in- 
serted in  the  same  Instead  of  his  own.  That 
said  Liocke  represented  to  this  plaintiff  that 
he  was  the  president  of  the  Security  Trust 
<;ompany.  That  said  company  was  largely 
and  actively  engaged  in  business  in  St  Paul, 
Minn.,  including  the  administration  of  estates 
of  decedents  and  other  fiduciary  matters,  and 
for  such  reason  he  did  not  think  it  proper 
for  him  as  president  of  such  company  to 
pobllcly  be  known  as  connected  with  or  en- 
gaged in  exploiting  an  invention  or  patent 
right  That  he  would  faithfully  carry  out 
and  perform  all  the  terms  of  said  agreement, 
but  desired  and  requested  this  plaintiff  for 
the  reasons  aforesaid  to  allow  said  contract 
to  be  executed  nominally  in  the  name  of  said 
Wachenheimer,  who  was  at  such  time  as- 
sociated with  said  Locke  In  matters  of  this 
character.  That  In  accordance  with  such  re- 
quest, and  relying  upon  such  statements  and 
liromlses  on  the  part  of  said  defendant  Locke, 
this  plaintiff  executed  the  said  contract  as 
aforesaid.  Plaintiff  farther  alleges  that  in 
the  making  of  such  contract,  and  In  'all  sub- 
sequent proceedings  thereunder,  the  said 
Wachenheimer  acted  and  continued  to  act  as 
the  agent  of  said  defendant  Locke,  and  that 
during  all  said  time  the  said  Locke  was  and 
still  is  the  real  party  in  Interest  therein,  and 
that  said  contract  was  so  made  and  said  busi- 
ness transacted  In  the  name  of  said  Wachen- 
heimer as  a  matter  of  convenience  for  said 
lx)cke,  for  his  accommodation  and  to  avoid 
[lubliclty  as  aforesaid."  The  contract  Is  at- 
tached to  and  made  a  part  of  the  pleading, 
and  the  extract  above  set  out  Is  followed  by 
appropriate  allegations  of  a  breach  of  Its 
proTlsIons.  The  prayer  for  relief  is  that 
plaintiff  have  and  recover  (6,000  damages  for 
failnre  of  defendants  to  carry  out  the  terms 


of  the  contract,  and  that  the  contract  be  re- 
scinded and  delivered  up  for  cancellation. 

1.  If  it  be  conceded  that  the  complaint 
states  two  causes  of  action,  one  for  damages 
and  one  for  the  cancellation  of  the  contract, 
still  it  is  not  demurrable ;' for  section  4154. 
Rev.  Laws  1905,  expressly  permits  a  Joinder 
of  causes  of  action,  legal  or  equitable,  where 
they  arise  out  of  the  same  transaction,  are 
not  inconsistent,  and  affect  all  the  parties  to 
the  action.  Both  causes  of  action  presented 
by  this  complaint  arise  out  of  the  same  con- 
tract or  transaction,  are  not  inconsistent,  and 
affect  all  the  parties  of  the  action.  The  con- 
tract, though  made  with  Locke,  was  In  the 
name  of  Wachenheimer,  and  to  effect  a  can- 
cellation thereof  both  are  necessary  parties. 
Respecting  the  damages,  perhaps,  Wachen- 
heimer is  not  a  necessary  party ;  but  from 
that  fact  a  misjoinder  of  the  causes  of  action 
does  not  follow.  It  Is  not  necessary  that  the 
several  causes  of  action  authorized  to  be 
Joined  under  the  statute  referred  to  affect  all 
the  parties  alike.  Mayberry  v.  N.  P.  Ry. 
C!o.,  100  Minn.  70,  110  N.  W.  356,  12  L.  R.  A. 
(N.  S.)  675.  The  relief  awarded  In  such  cases 
may  affect  them  differently ;  but,  when  all 
are  concerned  in  some  material  part  of  the 
subject-matter  In  litigation,  they  may  be 
Joined.  In  the  case  at  bar  the  contract  may 
be  canceled  as  to  both  defendants,  but  a  re- 
covery of  damages  would  In  all  probability 
be  limited  to  Locke. 

2.  The  argument  in  support  of  the  second 
ground  of  demurrer,  namely,  that  the  com- 
plaint does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action.  Is  that,^  since  the 
contract  Is  in  writing  and  upon  Its  face  au 
agreement  between  plaintiff  and  Wachen- 
heimer, to  permit  evidence  to  connect  Locke 
with  it  as  a  party  in  Interest  would  violate 
the  elementary  rule  that  an  unambiguous 
written  contract  cannot  be  varied  or  changed 
by  parol.  The  question  was  presented  on 
the  oral  argument  mainly  on  the  theory  of 
the  general  principle  that  an  undisclosed 
principal  may,  by  parol  proof,  be  subjected 
to  liability  on  contracts  made  in  his  behalf 
by  his  agent ;  but  that  rule,  except  by  anal- 
ogy, has  no  special  application  to  the  facts 
here  presented.  Its  particular  application  is 
to  cases  where  an  agent  enters  into  a  con- 
tract on  behalf  of  his  principal,  without  dis- 
closing to  the  person  with  whom  he  Is  dealing 
that  he  Is  acting  as  an  agent  In  the  case  at 
bar  the  complaint  alleges  that  the  contract 
In  question  was  In  fact  made  and  entered  into 
between  plaintiff  and  Locke,  that  It  was  put 
in  Wachenhelmer's  name  at  Locke's  request, 
and  that  Wachenheimer  thereafter  in  all  • 
matters  pertaining  to  the  agreement  acted  as 
Locke's  agent  Under  such  circumstances  it 
cannot  well  be  said  that  Locke  was  an  un- 
known principal  within  the  rule  stated.  He 
was  known,  and  personally  made  the  contract 
in  his  own  behalf.  But  on  the  same  principle, 
which  Is  supported  by  all  modern  authorit.v 
(18  Tale  Law  J.  44:>),  Locke  may  be  identi- 


Digitized  by 


L-oogle 


168 


122  NORTHWESTERN  KEPORTEa 


(Minn. 


fled  by  parol  as  the  real  party  in  Interest 
(Llndeke  v.  Levy,  76  Minn.  364,  79  N.  W.  314 ; 
overruling  Rowell  v.  Oleson,  32  Minn.  288, 
20  N.  W.  227).  We  need  not  stop  to  consider 
the  extent  to  which  the  Oleson  Case  was 
overru]eA,  >aior  whether,  where  an  agent  en- 
ters into  a  written  contract  on  behalf  of  his 
principal,  but  In  his  own  name  and  after  ex- 
pressly disclosing  to  the  other  contracting 
party  the  name  of  his  principal,  the  latter 
may  be  subjected  to  liability  thereunder. 
Such  is  not  this  case.  Here,  as  already  stat- 
ed, the  principal  made  the  contract  and  caus- 
ed it  to  be  placed  In  his  agent's  name  for 
reasons  of  his  own.  He  had  the  right  to  do 
business  in  his  own  or  In  the  name  of  his 
agent,  as  he  thought  proper  and  advisable, 
and  parol  evidence  Identifying  him  as  the 
real  party  in  interest  violates  to  no  greater 
extent  the  rule  against  varying  written  con- 
tracts by  extrinsic  evidence  than  by  subject- 
ing to  liability  an  unknown  and  unnamed 
principal  by  similar  means.  Had  liocke  as- 
sumed, in  making  the  contract,  an  artificial  or 
fictitious  name,  it  is  clear  that  he  could  have 
been  identified  as  the  real  party.  The  situa- 
tion is  in  no  essential  way  changed  by  the 
fact  that  he  made  use  of  the  name  of  another 
known  person.  Pease  v.  Pease,  35  Conn.  131, 
95  Am.  Dec.  225. 

While  plaintiff,,  in  bis  amended  complaint, 
apparently  shifted  his  position  as  to  the 
facts,  as  pointed  out  by  respondent,  the 
amended  pleading  is  the  only  one  before  us, 
and  its  sufficiency  must  be  determined  in  the 
light  of  the  facts  therein  set  forth,  without 
reference '%o<  the  allegations  of  the  original 
complaint    Hanscom  v.  Herrick,  21  Minn.  9. 

Order  reversed. 


SAMMONS  V.  PIKE  et  al. 

(SupremtiCotirt  of  Minnesota.     July  2,  1009.) 

On  motion  for  reargnment    Former  opin- 
ion (120  N.  W.  540)  adhered  to. 

JA66ARD,  J.  Defendants'  motion  for  re- 
argument  proceeds  on  the  express  assumption 
that  the  original  opinion  herein  was  based 
on  two  points  not  presented  nor  argued.  In 
point  of  fact,  that  decision  rests  on  two  sim- 
ple and  unmistakable  propositions,  elaborate- 
ly argued  orally  and  on  briefs,  on  which  the 
decision  of  the  trial  court  rests,  viz.:  First, 
that  the  invalid  Dakota  divorce  decree  was 
•  subject  to  collateral  attack;  second,  that  the 
wife's  conduct  subsequent  to  the  decree  did  not 
operate  to  validate  it.  The  opinion  did  set 
forth  that  a  group  of  authorities  in  defend- 
ants' brief  sustained,  not  the  proposition  for 
which  they  were  cited,  but  another  which 
was  there  formulated,  namely,  that  the  con- 
duct of  a  spouse,  including  laches,  subse- 
quent to  the  granting  of  a  divorce  decree  in- 
validated by  fraud  in  the  service  of  sum- 


mons or  in  the  course  of  the  trial,  may  es- 
top representatives  of  such  persons  frona 
claiming  a  distributive  share  in  his  estate. 
Defendants  insist,  however,  that  the  cases 
to  which  reference  will  be  Immediately  made 
sustain  the  position  that  delay  for  a  su(B- 
clent  period  to  attack  a  decree  of  divorce  void 
because  neither  of  the  parties  were  residents 
of  the  Jurisdiction  rendering  the  decree  may 
by  estoppel  prevent  any  question  as  to  its 
validity. 

We  did  not  refer  in  the  original  opinion 
to  In  re  Ellis,  55  Minn.  401.  56  N.  W.  1056. 23 
L.  R.  A.  287,  43  Am.  St  Rep.  514.  because  it 
does  not  purport  at 'all  to  be  of  the  class  of 
cases  to  which  the  Instant  controversy  be- 
longs. There  the  divorce  was  obtained  by 
collusion  to  confer  Jurisdiction.  The  divorc- 
ed husband  died.  The  parties  to  the  contro- 
versy concerning-  his  estate  were  his  divorced 
wife,  who  alleged  the  invalidity  of  the  decree, 
a  woman  whom  he  had  married  after  the 
divorce,  who  asserted  its  validity,  and  a  sis- 
ter and  a  brother,  claiming  under  the  will. 
The  trial  court  found  for  the  second  wife. 
This  was  affirmed.  In  the  case  at  bar  nei- 
ther of  the  parties  had  married  again.  The 
intervening  rights  of  third  parties  were  not 
involved.  Defendants  themselves  called  our 
attention  to  the  principle  that  the  courts,  in 
motions  to  vacate  Judgments,  proceed  with 
great  caution  and  anxious  care  of  the  inter- 
vening rights  of  strangers.  Black  on  Judg- 
ments, 321.  Moreover,  at  page  410  of  55 
Minn.,  page  1058  of  56  N.  W.  (23  L.  E.  A.  287, 
43  Am.  St.  Rep.  514),  Gllfillan,  J.,  says: 
"When,  as  between  whom,  and  to  what  ex- 
tent is  such  determination  [of  residence  of 
the  parties]  binding  in  the  state  in  which  the 
parties  are  in  fact  residents?  •  *  •  First 
in  proceedings  between  the  state  of  the  par- 
ties' actual  residence  and  one  of  the  parties ; 
second,  in  proceedings  tMtween  the  parties 
in  the  state  of  their  actual  residence,  where 
the  divorce  in  the  other  state  was  procured 
on  the  application  of  one  of  them,  the  other 
not  appearing  in  the  action  to  procure  it; 
third,  in  proceedings  between  the  parties, 
when  both  voluntarily  appeared  in  the  action 
in  which  the  divorce  was  granted  and  con- 
sented to  the  Jurisdiction,  or  that  the  court 
might  determine  the  facts  on  which  the  Ju- 
risdiction depended.  In  the  second  class  of 
cases  it  was  settled  that  a  Judgment  of  an- 
other state  can  be  assailed  on  the  ground  of 
want  of  jurisdiction  in  the  court  to  render  it 
The  decisions  have  been  practically  uniform 
that  the  party  who  did  not  submit  to  the  Ju- 
risdiction is  not  bound  by  the  Judgment" 
The  decision  tends  to  sustain  our  original 
conclusion. 

In  Hurley  v.  Hurley,  117  Iowa,  621,  91  N. 
W.  895,  it  did  not  appear  and  was  not  found 
that  the  husband  was  a  nonresident  when  he 
obtained  a  divorce.  Moreover,  the  rights  of 
third  persons  had  intervened.  In  McNeil  v. 
McNeil  (C.  C.)  78  Fed.  884,  the  opinion  wal 
oral  and  rested  on  the  proposition  that,  "Mc- 


Digitized  by  VjOOQ  l€ 


Minn.) 


WILLARD  T.  IOWA  OBKT,  BY.  CO. 


169 


Nell  not  haTing  been  a  resident  of  the  state 
for  a  year  when  he  brought  his  snlt  for  dl- 
Torce,  the  court  had  no  Jurisdiction.  This, 
however,  Is  not  apparent  on  the  record,  and 
hence  a  judgment  cannot  be  said  to  be  void  on 
Its  face  and  therefore  subject  to  attack  at 
any  time."  This  rule,  as  has  appeared  In  the 
original  opinion.  Is  distinctly  not  the  law,  ei- 
ther in  the  federal  courts  or  In  this  court 

For  the  first  time  our  attention  Is  now  call- 
ed to  Reed  v.  Reed,  52  Mich.  117,  17  N.  W. 
720,  50  Am.  Rep.  247.  It  falls,  for  a  number 
of  reasons,  to  support  defendants'  contention. 
It  suffices  for  the  present  to  point  out  that 
the  law  in  Michigan  accords  with  the  opin- 
ion previously  expressed  In  the  original  opin- 
ion. In  O'Dell  V.  GofT,  163  Mich.  643,  117  N. 
W.  59,  the  testator  had  obtained  a  divorce  in 
Indiana  from  contestant's  mother.  The  nn- 
dlspnted  evidence  In  the  case  proved  that  at 
this  time  the  testator  resided  In  Michigan. 
The  Judgment  was  held  to  be  void  ab  Initio, 
and  that  defendant  In  the  proceedings  to  ob- 
tain It  had  a  right  to  disregard  proceedings 
therein  of  which  she  had  notice.  Carpenter, 
J.,  said:  "The  controversy  was  being  tried  by 
a  court  which  possessed  no  Jurisdiction,  and 
she  was  pursuing  a  course  which  she  had  a 
lawful  right  to  pursue  by  paying  no  attention 
to  the  steiw  that  were  taken  therein." 

Former  opinion  adhered  to. 

BROWN,  T.  I  dissent  A  careful  consid- 
eration of  the  merits  of  this  case,  after  re- 
argument,  leads  me  to  the  conclusion  that 
a  reversal  should  be  ordered.  The  opinion  of 
the  court  states  all  the  facts,  and  the  reasons 
for  my  conclusions  are.  In  brief,  as  follows : 

The  Judgment  of  divorce,  though  void  In 
fact,  was  valid  on  Its  face,  and  a  certified 
copy  thereof  was  personally  served  on  Mrs. 
HIgbee  many  years  before  her  death,  yet 
she  took  no  proceedings  to  have  It  set  aside, 
and  to  this  extent  at  least  she  acquiesced 
therein.  If  both  parties  had  voluntarily  ap- 
peared before  the  Dakota  court  In  which  the 
action  for  divorce  was  brought  and  submitted 
to  its  Jurisdiction,  they  would  have  been 
bonnd  by  the  Judgment,  although  the  court 
by  reason  of  the  fact  that  both  were  nonresi- 
dents, had  no  Jurisdiction  of  the  subject-mat- 
ter of  the  action,  the  marital  relations  be- 
tween them.  In  re  EUls,  55  Minn.  401,  56  N. 
W.  1066,  23  I<.  R.  A.  287,  43  Am.  St  Rep.  514. 
If  in  such  a  case  the  parties  conclude  them- 
selves by  their  personal  appearance,  it  is  a 
little  dlfflcnlt  to  see  wliy  a  long-continued  ac- 
quiescence by  one  of  them,  with  full  knowl- 
edge of  a  Judgment  obtained  by  a  court  of  a 
state  tiaving  no  Jnrisdictiou  of  the  subject- 
matter,  but  valid  on  Its  face,  would  not  be 
equally  effective  against  him.  Reed  v.  Reed, 
52  Mich.  117,  17  N.  W.  720,  50  Am.  Rep.  247; 
McNeil  T.  McNeil  (C.  C.)  78  Fed.  834;  Earle 
T.  Earle,  91  Ind.  27« 

In  this  particular  case,  the  parties  had 


resided  apart  for  a  long  number  of  years; 
HIgbee  In  Minnesota,  and  Mrs.  HIgbee  in  New 
Jersey.  The  divorce  Judgment  was  entered 
by  the  Dakota  court  in  1889,  and  the  wife, 
though  Immediately  served  with  notice  there- 
of, permitted  it  to  remain  unchallenged,  and 
never  in  any  proceeding  did  she  question  its 
validity  before  her  death  in  1906,  a  period 
of  16  years.  HIgbee  died  in  1906.  Under 
such  circumstances  it  would  seem  at  least 
equitable  and  Just  that  the  rights  of  the 
heirs,  the  only  jjersons  now  before  the  court, 
should  be  tested  in  the  light  of  and  guided 
by  the  status  of  the  relations  of  the  Hlgbees 
as  fixed  and  settled  by  the  Judgment  for  di- 
vorce, valid  on  its  face,  which  they  volun- 
tarily chose  to  abide  by  and  acquiesce  in  for 
16  years  prior  and  up  to  the  time  of  their 
death,  namely,  not  husband  and  wife.  And 
this  the  Ellis  Case  sustains. 

I  am  authorized  to  say  that  Chief  Justice 
START  concurs  In  this  view  of  the  cas& 


WILLARD  T.  IOWA  CENT.  RT.  CO. 
(Supreme  Court  of  Minnesota.     July  2,  1909.) 

1.  Carriers  (§  320*)— Injubt  to  Passenokrs 
— Qdestiow  fob  Jubt. 

In  a  personal  injury  action,  the  question 
being  as  to  the  proper  construction  to  be  placed 
up9n  certain  train  orders,  it  Is  held  that  the 
writings,  when  read  In  connection  with  the 
rules,  customs,  and  usages  of  the  company,  were 
ambignous,  and  that  the  court  properly  sub- 
mitted the  question  whether  the  engineer  placed 
the  proper  construction  ni>on  them  as  one  of 
fact  to  the  jury. 

[E}d.  Note. — For  other  cases,  see  Carriers, 
Dec  Dig.  S  320.*] 

2.  Cabbiebs  (S  318*)— Irjttbiks  to  Passer- 
sbbs— evidbitcb. 

The  evidence  held  to  be  sufficient  to  sus- 
tain a  finding  of  the  Jury  that  the  engineer  of 
a  train,  in  construing  certain  written  orders, 
was  not  guilty  of  negligence  in  acting  upon  the 
understanding  that  the  orders  gave  his  train 
the  right  of  track  over  a  train  which  was  ap- 
proaching from  the  opposite  direction. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Dec.  Dig.  t  31&*] 

3.  Review  or  Appeai.. 

Certain  rulings  and  instructions  of  the  trial 
court  considered,  and  found  not  to  contain  prej- 
udicial error. 
(Syllabus  by  the  (>>urt.) 

Appeal  from  District  Court,  Freeborn 
County ;  Nathan  Klngsley,  Judge. 

Action  by  Elmma  Willard,  administratrix, 
against  the  Iowa  Central  Railway  Company. 
Verdict  for  plaintiff.  From  an'  order  deny- 
ing a  new  trial,  defendant  appeals.  Af- 
firmed. 

John  I.  Dille,  N.  D.  Peterson,  and  Oeo.  W. 
Seevers,  for  appellant  Dunn  &  Carlson,  for 
respondent 


■ELLIOTT,  J.  On  February  20,  1906,  Eu- 
gene J.  Willard,  an  engineer  in  the  employ 
of  the  Iowa  Central  Railway  Company,  while 


■For  otlMr  casw  sae  nun*  topic  and  sactloa  NCMBRR  in  Dec.  *  Am.  Diss.  UOT  to  dato,  ft  Reporter  IndoxM 


Digitized  by  VjOOQ  l€ 


170 


122  NORTHWESTERN  REPORTER. 


(Minn. 


on  duty,  was  killed  by  bis  train  colliding 
witb  anotber  train  which  was  approaching 
from  the  opposite  direction.  In  this  action, 
brought  by  the  administratrix  of  his  estate, 
it  is  charged  that  the  railway  company  was 
negligent  in  having  another  train  upon  the 
main  line  at  the  time  of  the  collision.  The 
defendant,  in  its  answer,  denied  the  charge 
of  negligence,  and  alleged  that  the  deceased 
came  to  bis  death  through  his  own  negli- 
gence in  not  obeying  the  rules  of  the  com- 
pany and  orders  giving  the  other  train  the 
right  of  way  on  the  track  where  the  collision 
occurred.  The  accident  occurred  in  the  state 
of  Iowa,  and  the  Jury  returned  a  verdict  in 
favor  of  the  plalntitf  for  $9,500.  The  appeal 
is  from  the  order  of  the  court  overruling 
the  defendant's  motion  for  a  new  trial. 

At  the  time  of  the  accident  the  appellant 
owned  and  operated  a  railroad  from  Albert 
Lea,  Minn.,  to  Oskaloosa,  Iowa,  which  ran 
nearly  north  and  south.  There  were  two 
dally  freight  trains  running  between  Albert 
1/ea  and  Oskaloosa — one.  No.  93,  going  north, 
and  the  other,  No.  92,  going  south.  By  the 
time  card  the  south-bound  train  was  the  su- 
perior, and  in  the  absence  of  train  orders  to 
the  contrary,  had  the  right  tts  against  the 
north-bound  train  to  be  on  the  main  track. 
Mason  City,  Hampton,  Ackley,  Abbott,  El- 
<1ora,  Gilford,  and  Marsballtown  are  stations 
between  Albert  Lea  and  Oskaloosa,  in  the 
order  named,  going  south  toward  Oskaloosa. 
On  the  day  of  the  accident  No.  92  going 
south  was  running  In  sections  south  of 
Hampton,  and  under  the  rules  both  sections 
had  the  right  of  way  over  No.  93,  the  train 
which  was  In  charge  of  Willard,  the  deceas- 
ed engineer.  No.  93  proceeded  north  to 
Marshalltown  and  there  waited  for  orders, 
as  without  orders  It  could  not  proceed  be- 
yond that  point  without  trespassing  upon 
the  rights  of  the  superior  train,  No.  92. 
While  at  Marshalltown,  according  to  appel- 
lant's claims.  No.  93  received  the  following 
order,  which  Is  referred  to  In  the  record  as 
"Order  No.  7,"  namely:  "No.  93  has  right 
over  1st  No.  92  Marshalltown  to  Abbott." 
On  this  order  No.  93  proceeded  north  to  Gif- 
ford,  where  It  received  two  orders — the 
first,  referred  to  as  "Order  No.  10,"  reading, 
"No.  93  gets  this  order,  and  will  meet  Ist 
No.  92  at  GUFord;"  and  the  other,  known 
as  "Order  No.  18,"  as  follows:  "No.  93  wIU 
meet  Ist  No.  92  at  Eldora,  Instead  of  Glf- 
ford,  and  has  right  over  No.  90  OUford  to 
Ackley.  This  to  Ist  92  at  Eldora."  The 
first  section  of  No.  92  also  received  the  same 
orders.  In  passing  Gifltord  the  first  section 
of  No.  92  displayed  the  usual  flag  signals 
and  whistled,  indicating  that  its  second  sec- 
tion was  following.  Train  No.  93  proceeded 
to  a  point  about  IV2  miles  north  of  Eldora, 
where  it  collided  with  the  second  section  of 
Xo.  92,  and  the  engineer  of  No.  93  was 
killed. 

One  witness,  Rodgers,  testified  that  be 
saw  Willard  receive  at  Marshalltown  an  or- 


der in  substance  as  follows:  "No.  93  has 
right  of  track  over  No.  02  from  Marshalltown 
to  Abbott."  This  is  evidently  another  read- 
ing of  order  No.  7,  and,  if  that  is  the  way 
the  order  ran,  Willard  was  acting  within  bis 
right.  The  appellant  claims,  however,  that 
Rodgers  was  clearly  mistaken,  and  that  his 
statement  cannot  be  accepted.  Tlie  rules  of 
the  company,  which  were  in  force  before  and 
at  the  time  of  the  accident,  contain  the  fol- 
lowing provisions:  "Superior  Train. — A  train 
having  precedence  oyer  other  trains.  A 
train  may  be  made  superior  by  right,  class, 
or  direction.  Right  is  conferred  by  train 
order;  class  and  direction,  by  time-table. 
Right  Is  superior  to  class  or  direction.  Di- 
rection la  superior  as  between  trains  of  the 
same  class."  The  importance  of  these  pro- 
visions for  oinr  present  purposes  is  found 
in  the  statement  that  "right  is  conferred  by 
train  order,"  _  because  when  train  No.  93 
started  north  it  Is  conceded  that  It  was  act- 
ing under  specific  train  orders. 

1.  The  vital  question  arose  upon  the  prop- 
er construction  of  these  orders.  The  appel- 
lant contends  that  their  meaning  should 
have  been  determined  by  the  court  as  a 
matter  of  law;  but  the  trial  court.  In  view 
of  the  fact  that  the  employ^  of  the  railwa.v 
company  differed  as  to  their  meaning  and 
claimed  that  they  were  to  be  construed  in 
the  light  of  established  usages  and  customs, 
submitted  the  question  to  the  Jury  as  one 
of  fact.  The  refusal  to  give  an  Instruction 
which  embodied  the  construction  contended 
for  by  the  defendant  Is  assigned  as  error. 
That  instruction  was  that:  "The  rights  of 
trains  No.  93  and  second  No.  92  upon  the 
tracks  at  the  time  and  place  of  the  collision 
were  defined  by  the  time-table  and  rules  of 
the  company  and  the  train  orders  that  are 
in  evidence.  The  defendant  contends  that 
train  orders  Nos.  7,  10,  and  13  were  the  only 
orders  g^Iven  that  affected  the  movement  of 
said  trains  at  the  time  of  the  collision,  while 
plaintiflf  claims  that  train  order  described  by 
Fireman  Rodgers,  one  of  plaintifTs  witness- 
es, giving  train  No.  93  right  over  No.  92 
from  Marshalltown  to  Abbott,  was  given 
and  acted  upon  by  Engineer  Willard.  Ton 
are  Instructed  that  train  orders  Nos.  7,  10. 
and  13,  herein  mentioned,  and  the  time- 
table and  rules  of  the  defendant  accompany- 
ing the  same,  were  plain  and  unambiguous, 
and  undw  them  train  second  No.  92  would 
have  had  the  right  to  be  on  the  track  at  the 
time  and  place  of  the  collision,  and  train 
No.  93  had  no  right  to  be  there.  You  are 
therefore  instructed  that  if  said  orders  were 
delivered  to  the  conductor  and  engineer  of 
train  No.  93,  as  claimed  by  the  defendant, 
and  were  not  changed  or  modified  by  any 
other  train  order,  such  conductor  and  en- 
gineer were  both  negligent  in  having  train 
No.  93  upon  the  track  at  the  time  and  place 
of  the  accident,  and  your  verdict  should  be 
for  the  defendant." 

The  south-bound  train  (No.  92)  under  the 


Digitized  by  VjOOQ  l€ 


Minn.) 


WILIiARD  y.  IOWA  CENT.  RY.  00. 


171 


rule  was  tlie  superior  train,  and  all  Its  sec- 
tions  bad  tbe  right  of  track  over  the  north- 
bound train.  Tbe  Tarious  sections  consti- 
tuted but  one  train.  It  was  then  tbe  duty 
of  No.  93  to  yield  the  right  of  way  to  second 
No.  92,  unless  both  sections  of  No.  92  -were 
■leprired  of  the  superior  right  by  a  train 
order.  Order  No.  7  Informed  tbe  men  in 
•  baise  of  No.  93  that  "No.  98  had  right  of 
way  over  Ist  No.  92  Marshalltown  to  Ab- 
tiott,"  and  rule  No.  218  provided  that: 
"'NN'ben  a  train  Is  named  in  a  train  order, 
its  sections  are  all  Included,  unless  particu- 
lar sections  are  specified."  As  order  No.  7 
designated  the  first  No.  92  only,  the  appel- 
lant argues  that  it  left  the  second  .No.  92 
<^ntltled  to  the  right  of  way.  If  such  is  tbe 
correct  construction,  the  second  section  of 
\o.  92  had  the  right  of  way  to  the  main 
frack,  and  the  men  in  charge  of  No.  93  were 
negligent  when  they  started  north  on  tbe 
main  track,  and  the  plaintiff  cannot  recover 
in  this  action.  The  appellant  construed 
order  No.  10  as  simply  a  meet  order,  and 
No.  13  refers  to  train  No.  90,  which  is  not 
in  any  way  involved  in  this  case.  On  the 
other  band  tbe  respondent  contends  tbat 
this  is  not  tbe  construction  which  tbe  en- 
sineer,  Willard,  was  required  to  place  upon 
these  orders,  as  It  would  have  rendered  them 
nugatory  and  prevented  train  No.  93  from 
proceeding  from  Marshalltown  at  all  wlth- 
ont  violating  other  rules  of  the  company, 
because  the  second  section  of  No.  92  was  at 
I  lie  time  running  upon  the  schedule  provided 
in  tbe  time-table  for  No.  93;  that  Is,  the 
second  section  of  No.  92  was  due  at  Mar- 
shalltown when  tbe  order  was  given.  Con- 
■lactor  Russell  testified  that  If  the  order  bad 
specified  that  No.  03  had  the  right  of  way 
over  first  No.  92,  but  not  the  second  No.  92, 
I  rain  No.  93  could  not  have  proceeded. 
Hence  tbe  claim  is  that,  unless  order  No. 
7  conld  be  given  a  construction  which  con- 
ferred a  right  over  the  second  as  well  as 
tbe  first  No.  92,  Wlllard's  train  would  have 
l)een  nnable  to  proceed  from  Marshalltown, 
:ind  tbat  a  construction  which  gave  No.  93 
the  right  to  proceed  as  against  both  sections 
lit  No.  92  was  tbe  one  which  custom  and 
usage  required  to  be  placed  on  the  order. 

Tbe  trial  court  Instructed  the  Jury  very 
fully  on  the  force  of  the  rules  and  orders 
and  tbe  weight  to  be  given  usage  and  cus- 
tom in  their  construction  by  the  employ^. 
The  Jury  was  told  that  it  was  necessary  for 
the  safety  and  operation  of  the  trains  and 
tbe  safety  of  the  public  that  the  company 
should  make  rules  and  issue  orders,  and  "it 
Is  necessary  that  the  trainmen  be  required 
to  observe  and  obey  these  rules  and  regula- 
tions, and  If  they  fall  to  obey  them  when  the 
rules  are  plain  and  unambiguous,  and  there 
is  no  custom  or  practice  that  has  the  effect 
to  change  or  modify  or  supersede  them.  If 
;bey  fall  to  obey  them  then  they  have  failed 
fo  perform  their  duty,  and  if  injury  results 
it  is  their  loss,  and  not  tbe  loss  of  the  com- 


pany. So  that  it  was  the  duty  of  the  engi- 
neer and  condif^tor  of  train  No.  93  to  under- 
stand and  know  and  obey  the  orders  of  the 
train  dispatcher  and  tbe  rules  of  the  com- 
pany according  to  the  ordinary  usages  and 
customs  and  practice  of  the  company  at  that 
time.  If  tbe  ordinary  usages  and  customs  of 
the  company  at  that  time,  as  they  were  ol>- 
served  by  the  trainmen  and  the  company 
authorized  Mr.  Willard  to  construe  this  or- 
der, if  that  was  tbe  order  that  he  received, 
to  proceed  beyond  Eldora  after  having  met 
the  first  section  of  train  No.  92,  then  be  was 
within  bis  rights,  and  was  not  negligent  up- 
on the  occasion  In  question,  and  the  plaintiff 
would  be  entitled  to  recover  in  this  action. 
On  the  other  hand.  If  the  orders  and  rulps 
of  the  company  as  construed  by  the  employes 
of  the  company  and  the  company  Itself  In 
tbe  operation  of  trains  did  not  authorize 
train  No.  93  to  proceed  beyond  Eldora  under 
this  order  and  orders  Nos.  10  and  13,  then 
he  was  not  within  his  right,  and  he  had  no 
right  to  proceed  beyond  Eldora,  and,  having 
done  80,  be,  his  widow,  nor  anybody  else, 
would  have  a  right  of  action  In  his  behalf. 
So,  you  see.  If  you  come  to  this  branch  of  the 
case,  the  question  for  you  to  determine  will 
be  what  was  the  rights  of  train  No.  93  be- 
yond Eldora,  north  of  Eldora,  at  the  time  of 
the  collision,  under  the  orders  which  Mr. 
Willard  had  received  and  under  the  rules  of 
tbe  company  as  customarily  construed  and 
applied  by  tbe  company  in  the  management 
of  its  train  service." 

If  the  written  orders  were  ambiguous,  and 
there  was  any  evidence  reasonably  tending 
to  sustain  the  contention  that  any  customs 
and  usages  existed  in  the  light  of  which  the 
orders  should  be  construed,  and  that  Willard 
acted  In  accordance  therewith,  the  issue  was 
properly  submitted  to  the  Jury.  Then  (1)  ac- 
cording to  the  ordinary  usages  and  practices 
of  tbe  railway  company,  under  which  It  re- 
quired its  servants  to  construe  the  order,  did 
order  No.  7  confer  a  right  on  No.  93  over 
both  sections  of  No.  92  from  Marshalltown 
to  Abbott?  If  so  (2)  did  orders  Nos.  10  and 
13  supersede  order  No.  7  as  to  second  No. 
92?  The  defendant's  witnesses  contlnually 
refer  to  the  usages  and  customs  of  the  com- 
pany as  aids  In  the  construction  of  the  or- 
ders and  rules,  and  they  do  not  at  all  agree 
to  the  construction  which  should  have  been 
placed  upon  order  No.  7.  Mr.  Landfear,  the 
train  dispatcher,  testified  that  under  orders 
Nos.  7,  10,  and  13  train  No.  93  had  no  right 
as  against  second  No.  92  to  proceed  north 
after  meeting  first  No.  02  at  Eldora;  but 
be  also  said  tbat,  assuming  that  order  No. 
7  did  give  No.  93  the  right  of  track  over 
both  sections  of  No.  92  from  Marshalltown  to 
Abbott,  then  No.  93  certainly  had  the  right 
to  proceed  north  from  Eldora  as  against 
both  sections.  Tbat  right  is  exactly  what 
the  superintendent  of  the  railway  company 
testified  was  given  to  No.  93  by  order  No. 
7,  when  read  apart  from  tbe  subsequent  or- 


Digitized  by  VjOOQ  l€ 


172 


122  NORTHWESTERN  REPOBTEB. 


(MlniL. 


ders.  Nob.  10  and  13.  Trainmaster  McCarthy 
also  gave  his  opinion  as  to  the  proper  con- 
struction of  orders  Nos.  7,  10,  and  13,  In  the 
light  of  the  time  card,  rules,  customs,  and 
usages  of  the  company.  He  construed  order 
No.  7  as  giving  No.  93  the  right  over  first 
No.  92  only,  leaving  its  relation  to  the  other 
section  governed  by  the  time-table  and  the 
rules;  but  on  croea-ezamlnatlon  he  said: 
"Q.  So  I  see  that  any  sensllde  or  reasonable 
person  would  Infer  from  that  order  (No.  7) 
as  you  claim  it  to  be  that  they  had  a  clear 
track,  and  that  they  were  expected  to  go 
to  Abbott,  and  they  would  not  meet  any- 
thing? A.  Yes,  sir.  Q.  And  yon  claim  it  is 
only  because  of  some  subsequent  orders  that 
that  thing  is  Interrupted?    A.  Yes,  sir." 

In  determining  whether  WlUard  was  justi- 
fied In  construing  the  order  as  giving  his 
train  right  of  track  over  both  sections  of 
No.  92,  it  seems  reasonable  to  give  weight 
to  the  views  of  the  superintendent  of  the  rail- 
way company  as  to  the  proper  construction 
of  the  orders.  Mr.  Hayden  himself  con- 
strued order  No.  7  as  giving  No.  93  the  right 
of  track  over  both  sections  of  No.  92,  but 
claimed  that  tliis  right  was  terminated  by 
the  subsequent  orders;  that  is,  that  when 
order  No.  10  was  given,  order  No.  7  was  su- 
perseded. "Q.  Now,  yon  say  that  under  that 
order,  that  if  they  got  no  other  orders,  that 
they  were  to  proceed  to  Abbott?  A.  Yes,  sir. 
Q.  Against  all  of  No.  92?  A.  Yes,  sir.  Q. 
Both  sections?  A.  Yes,  sir.  Q.  So  in  ab- 
sence of  any  further  orders — in  absence  of 
these  orders,  that  is — order  No.  7  gave  them 
the  right  of  way  over  all  sections  of  No.  92 
to  Abbott?  A.  If  they  had  not  got  any  or- 
ders contradicting  It.  Q.  Well,  it  gave  them 
a  right  over  the  first  section,  and  the  second 
section  could  not  run  around  the  first  section 
and  proceed  as  the  second  section.  It  would 
necessarily  follow  that  it  gave  them  the  right 
of  way  over  both,  in  the  absence  of  these 
orders?  Necessarily  so?  A.  Yes,  sir.  Q. 
You  contend  that  by  virtue  of  the  meet  or- 
ders that  then  ilf  was  the  rights  of  No.  92 
ceased?  A.  Yes,  sir.  •  *  "  Q,  But  to 
get  back  to  the  other  proposition:  Then, 
first,  order  No.  7  gave  them  a  right  neces- 
sarily over  both  sections  to  Abbott  until  It 
was  changed  by  these  meet  orders?  A.  Yes, 
sir.  Q.  That  is  as  you  would  construe  it 
and  the  customs  or  usages  of  the  road  would 
construe  it?    A.  Yes,  sir." 

Van  Draske,  the  conductor  of  No.  92,  also 
testified  that  he  construed  order  No.  7  as  giv- 
ing train  No.  93  the  right  of  track  over  Iwth 
sections  of  No.  92.  "Q.  That  would  be  the 
custom  and  construction  during  all  the  time 
you  have  been  in  the  service  of  the  road? 
A.  Yes,  sir.  •  •  *  Q.  Now,  then,  armed 
with  an  order  giving  him  the  right  over 
both  sections  to  Abbott,  he  had  a  right  to  go  to 
Abbott  on  that  track  until  he  received  some 
order  which  denied  him  that  right?  A.  Yes, 
sir."    With  reference  to  order  No.  7  the  same 


witness  testified:  "Q.  Mr.  Van  Draske,  mak- 
ing  mention  of  first  No.  92  in  the  first  order 
then,  necessarily,  under  your  testimony,  was 
not  essential  to  the  order  at  all,  was  It?  A.  I 
don't  understand  your  question.  Q.  I  say  that 
order  would  have  been  Just  as  plain  and  meant 
the  same  if  the  word  'first'  had  been  left 
out?  A.  No,  sir.  Q.  I  mean  the  effect  of  it, 
so  far  as  running  to  Abbott?  A.  Yes;  It 
would  have  meant  the  same." 

Anderson,  the  conductor  of  No.  93,  testi- 
fied: "Q.  Now,  you  told  us  a  minute  ago  that 
under  the  custom  of  your  railroad  as  it  ex- 
isted that  this  order  No.  7  gave  you  the  right 
of  track  over  Iwth  sections.  You  remember 
that  testimony,  don't  you?  A.  Yes,  sir.  Q. 
And  you  told  us  that  that  was  the  custom  on 
the  railroad  at  that  time  of  advising  you  that 
you  had  the  right  over  No.  92  and  all  sec- 
tions of  It?  A.  Yes,  sir.  Q.  Now,  then,  if 
that  was  the  custom,  then  you  had  the  right 
over  No.  92  and  over  second  No.  92  to  Ab- 
bott until  that  part  of  the  order  was  in  some 
way  superseded,  didn't  you?  A.  Yes,  sir. 
Q.  When  it  said  first  No.  92,  it  meant  sec- 
ond No.  92,  too,  did  it?  A.  Yes,  sir;  so  far 
as  that  order  was  concerned,  it  did.  •  *  • 
Q.  The  reasons  for  tliat,  to  give  it  any  force  at 
all,  it  would  have  to  be  so.  You  could  not  pro- 
ceed against  first  No.  92,  without  proceeding 
against  second  No.  92  at  the  same  time?  A. 
No,  sir ;  we  could  not  Q.  You  were  trespass- 
ing upon  the  time  of  both  when  you  proceed- 
ed?   A.  Yes,  sir." 

The  Jury  was  entitled  to  accept  this  testi- 
mony of  the  defendant's  witnesses  as  to  prop- 
er construction  of  order  No.  7,  and  the  ques- 
tion then  is  whether  or  not  No.  98  was  de- 
prived of  the  rights  thus  conferred  by  the 
subsequent  orders.  We  have  already  occu- 
pied too  much  space  in  detailing  the  evidence, 
and  must  content  ourselves  with  the  state- 
ment that  there  is  evidence  at  least  reason- 
ably tending  to  show  that  these  subsequent 
orders  as  construed  by  the  practical  men  in 
charge  of  the  work  did  not  deprive  No.  93 
of  the  right  to  proceed  after  it  had  met  the 
first  section  of  No.  92.  Of  course,  the  evi- 
dence is  not  all  one  way ;  but,  as  we  read  It, 
the  trial  court  was  Justified  in  refusing  to 
give  the  requested  Instruction  and  in  sub- 
mitting the  question  to  the  Jury. 

2.  There  Is  no  merit  in  the  claim  that  the 
court  erred  in  permitting  the  witness  Ander- 
son to  be  improperly  cross-examined,  and  to 
testify  to  the  usages  and  customs  of  the  com- 
pany and  the  meaning  of  orders  Nos.  7,  10, 
and  13.  The  different  constructions  placed 
upon  these  orders  by  the  defendant's  own  wit- 
nesses, or  at  least  from  the  conflicting  and 
confusing  reason  given  by  them  for  their  con- 
dusloDS,  it  ia  clear  that  the  orders  were  am- 
biguous. Substantially  the  same  questions 
were  asked  by  the  defendant's  of  certain  of 
its  witnesses,  and  it  is  now  claiming  the  ben- 
efits of  their  answers. 

All  the  other  assignments  of  errors  based 


Digitized  by 


L-oogle 


Jflnn.) 


SMITH  T.  INDEPENDENT  SCHOOL  DIST.  NO.  U 


173 


■on  the  roles  and  Inatrnctlons  of  the  court 
have  been  carefully  considered  and  found  to 
be  without  merit 
The  order  of  the  trial  court  Is  affirmed. 


SMITH  et  al.  v.  INDEPENDENT  SCHOOL 

DIST.  NO.  12,  ST.  LOUIS  COUNTY. 
•(Supreme  Court  of  Minnesota.     July  2,  1909.) 

SCHOOId  AND  SOHOOI,  DlStRICTS  (J  80*)— CON- 

TBACra — Pboposaia  and  Acceptancb. 

A  school  district,  propoEing  to  erect  a 
schoolhonae,  advertised  for  bids.  Certain  con- 
tractors submitted  a  bid.  The  board  TOted  that 
they  be  awarded  the  contract.  The  architect 
drafted  a  proposed  contract,  based  upon  the 
specifications  which  had  been  used  by  the  con- 
tractors in  making  their  bid,  which  was  exhibit- 
ed, but  not  delivered,  to  the  contractors.  The 
attorney  for  the  school  board  thereafter  drafted 
a  new  contract,  which  contained  matters  not 
included  in  the  specifications  upon  which  the 
bid  was  made.  After  various  negotiations  with 
reference  to  the  form  and  substance  of  the  con- 
tract, the  parties  being  unable  to  agree,  the 
board  let  the  contract  to  another  bidder.  The 
contractors  then  brought  an  action  to  recover 
the  money  which  they  bad  deposited  at  the 
time  of  the  making  of  the  bid  as  required  by 
the  advertisement.  The  school  board  claimed 
that  the  money  had  been  forfeited,  and  sought 
to  recover  damages  for  the  refusal  of  the  con- 
tractors to  carry  out  the  contract  Held,  that 
■no  contract  had  been  entered  into,  and  that 
the  trial  court  properly  directed  a  verdict  in 
favor  of  the  plamtiffs. 

[Ed.  Note.— For  other  cases,  see  Schools  and 
School  Districts,  Dec.  Dig.  {  80.*] 

(Syllabns  by  the  Court.) 

Appeal  from  District  Court,  St  Louis  Coun- 
-ty;  J.  D.  Ensign,  Judge. 

Action-  by  George  Smith  and  another,  as 
Smitli  &  Yokes,  against  Independent  School 
District  No.  12,  St  Louis  County.  Verdict 
-directed  for  plaintiffs.  From  an  order  deny- 
ing its  motion  for  judgment  notwithstanding 
the  verdict  or  for  a  new  trial,  defendant  ap- 
peals.   Affirmed. 

W.  G.  Bonham,  for  appellant  Jaques  & 
Hudson,  for  respondents. 

ELLIOTT,  J.  The  plaintUfs  sought  to  re- 
cover the  sum  of  $900  in  an  action  for  money 
bad  and  received.  At  the  close  of  the  evi- 
dence the  court  directed  a  verdict  in  favor 
of  the  plaintiffs,  and  the  defendant  appealed 
from  an  order  denying  its  motion  for  judg- 
ment notwitlistandlng  the  verdict  or  for  a 
new  trial. 

The  primary  question  involved  is  whether 
or  not  a  contract  was  entered  into  between 
the  parties.  If  no  contract  was  made,  the 
•court  properly  directed  a  verdict  In  favor  of 
the  plaintiffs.  We  think  the  court  was  right 
On  Febmary  5, 1908,  the  appellant  advertised 
for  bids  for  the  construction  of  a  proposed 
scboolhouse.  This  advertisement  was  to  the 
following  effect:  "The  undersigned  hereby 
gives  notice  that  sealed  proposals  for  the 
erection  of  a  grade  school  building  at  Ely, 


Minn.,  including  all  labor  and  material,  will 
be  received  by  Henry  Chlnn,  until  the  hour 
of  2  p.  m.  on  the  24th  day  of  February,  1908. 
All  bids  must  be  In  strict  accordance  with 
plans  and  specifications  prepared  by  F.  Ia 
Toung  &  Co.,  201  Palladio  Building,  of  Du- 
luth,  Minn.,  which  may  be  seen  at  the  office 
of  the  architect  on  and  after  February  7, 
1908,  and  may  also  be  seen  on  application  to 
Builders'  Excha'nges  of  Dulutb,  St  Paul,  and 
Minneapolis,  and  office  of  the  school  board  of 
Ely,  Minn.  Excavations  and  concrete  work 
for  footings  must  be  bid  on  separate  from 
the  general  contract.  A  certified  check  for 
2  per  cent  of  the  bid,  payable  to  the  order  of 
M.  E.  Gleason,  treasurer,  must  accompany 
each  bid  as  a  guarantee,  the  same  to  be  re- 
turned to  unsuccessful  bidders  immediately 
on  letting  the  contract  The  party  to  whom 
the  contract  is  awarded  will  be  required  to 
give  satisfactory  bond  in  the  sum  of  the  con- 
tract price  for  the  faithful  performance  of 
the  contract  The  right  is  reserved  to  reject 
any  or  all  bids." 

The  respondents.  Smith  &  Yokes,  saw  this 
notice  and  called  upon  the  architect  referred 
to  therein  to  see  the  plans  and  speciflcations 
of  the  building.  In  order  to  figure  upon  its 
construction.  The  architect  produced  the 
plans  and  speciflcations  and  delivered  them 
to  the  plaintiffs.  Upon  the  basis  of  these 
specifications.  Smith  &  Yokes  submitted  a 
bid  and  deposited  therewith  the  sum  of  $900, 
as  required  by  the  advertisement  On  Feb- 
ruary 24,  1908,  the  school  board  considered 
the  bids,  and  its  records  show  the  following 
proceedings:  "Ely,  Minn.,  February  24,  1908. 
A  meeting  of  school  board  of  district  No.  12 
was  held  in  the  office  of  the  high  school  build- 
ing for  the  purpose  of  canvassing  proposals 
for  the  erection  of  the  new  school  buUdlng. 

•  •  •  The  following  proposals  were  can- 
vassed:   •    •    •    Smith  &  Yokes,  $39,435.00. 

*  •  *  All  proposals  excepting  Smith  & 
Yokes  and  (}.  E.  Welrschke  were  dispensed 
with.  These  two  bidders  were  asked  to  sub- 
mit reduction  from  their  bid  for  certain  por- 
tions of  the  material  specified  which  the 
board  may  decide  to  dispense  with.  Submit- 
ted as  follows:  Smith  &  Yokes,  $2,075.00; 
C.  E.  Welrschke,  $1,887.00.  Motion  support- 
ed and  carried  that  Smith  &  Yokes  being  the 
lowest  bidder,  they  be  awarded  the  contract 
Meeting  adjourned." 

On  the  same  day  F.  L.  Toung,  the  archi- 
tect prepared  a  rough  draft  of  a  building 
contract  upon  an  architect's  form  ordinarily 
used  for  such  purposes,  and  submitted  it  to 
Smith,  who  then  stated  that  be  desired  to 
submit  it  to  his  attorney  before  signing  it. 
This  form  of  contract  provided  that  the  work 
covered  by  the  contract  should  be  done  under 
the  direction  of  the  architect  and  that  his 
decision  as  to  the  true  construction  and 
meaning  of  the  drawings  and  speciflcations 
should  be  final,  that  the  architect  should  have 


-•For  other  cues  leo  samo  topic  and  section  NUMBER  In  Dec.  It  Alf .  Dlga.  1907  to  date,  *  Reporter  Indexei 


Digitized  by 


Google 


174 


122  NORTHWESTEUN  UEPOHlER. 


(Miun. 


the  power  to  condemn  the  materials  and 
work  done,  and  that  the  contractor  should 
remove  such  materials  and  take  down  such 
work  upon  notice  from  the  architect  to  that 
effect.  The  school  board  never  completed  this 
draft  of  contract,  and  it  was  never  sent  by 
tbem  to  the  plaintiffs  for  execution,  or  tor 
tiubmission  to  their  attorney.'  The  specifica- 
tions which  were  submitted  to  Smith  &  Yokes 
by  the  architect,  Young,  are  referred  to  In 
the  record  as  Exhibit  F.  There  was  also  in- 
troduced a  set  of  specifications  which  came 
from  the  architect's  ofllce,  referred  to  as  Ex- 
hibit 10,  and  also  another  set,  which  was  pro- 
duced by  the  school  board  and  is  referred  to 
as  Exhibit  29.  Both  of  the  latter  differ  In 
some  material  respects  from  Exhibit  F,  which 
was  the  one  upon  which  Smith  &  Yokes  made 
their  bid.  For  instance,  Exhibit  10  contains 
a  clause  to  the  effect  that  "the  architects  and 
owners  or  their  authorized  representative 
may  by  written  notice  require  contractor  to 
dismiss  forthwith  any  workman  they  may 
deem  careless  or  incompetent"  There  Is  also 
a  provision  that  "no  contractor  Is  to  sublet 
the  whole  or  any  part  of  this  contract  with- 
out the  consent  of  the  architects  and  the 
school  board."  Exhibit  10  provides  that 
there  "shall  be  blinds  in  all  windows  except 
those  in  the  boiler  and  coal  rooms,  the  win- 
dows below  the  celling  of  the  side  i>orch,  and 
the  three  small  ones  directly  over  the  front 
entrance.  They  are  to  be  of  Bnstwlck  and 
Goodell  Mfg.,  or  their  equal.  The  slats  are 
to  be  2%  Inches,  of  bass  or  white  wood  in 
natural  finish.  The  cord  is  to  be  good,  and 
the  tape  of  the  best  linen."  This  provision 
is  also  found  in  Exhibit  29,  but  not  in  Exhib- 
it F. 

After  the  draft  of  a  contract  had  been  pre- 
pared by  Mr.  Young,  there  was  some  delay, 
and  on  March  11th  J.  W.  Osborn,  who  was 
acting  as  the  attorney  for  the,  school  board, 
mailed  to  Smith  &  Yokes  a  draft  of  a  pro- 
posed contract  which  differed  materially  from 
the  one  drawn  by  the  architect  on  February 
24th.  This  proposed  contract  provided  that 
the  contractors  were  to  construct  the  school 
building  under  the  supervision  and  to  the 
satisfaction  of  the  owner  and  architects,  and 
that  no  alteration  should  be  made  In  the 
work  except  upon  the  written  order  of  the 
architects  "and  owner,"  and  that  the  archi- 
tects "and  owner"  might  condemn  material 
and  work  done  which  might  be  deemed  by  the 
architects  "and  owner"  as  insufficient  or  im- 
proper or  in  any  way  failing  to  conform  to 
the  drawing  and  specifications.  Upon  re- 
ceiving this  proposed  contract.  Smith  & 
Yokes  drafted  a  form  of  contract  which  pro- 
vided that  the  building  should  be  construct- 
ed under  the  supervision  of  the  architect, 
and  that  any  alterations  In  the  work  should 
be  upon  the  order  of  the  architect,  and  that 
the  power  to  condemn  work  and  material  Is 


to  be  in  the  architect,  and  not  in  the  archi- 
tect and  the  owner.  It  is  not  necessary  tu 
refer  In  detail  to  the  variaus  drafts  of  pro- 
posed contracts,  as  it  la  clear  that  the  minds 
of  the  parties  did  not  meet  and  that  no  con- 
tract was  ever  agreed  upon.  Smith  &  Yokes 
never  refused  to  enter  into  the  contract  drawn 
by  the  architect  on  February  24th;  but  It  ap- 
pears that  they  were  at  all  times  willing  to 
execute  such  a  contract,  and  in  fact  were 
willing,  as  a  compromise  measure,  to  enter 
into  the  contract.  Exhibit  28,  which  contain- 
ed some  modifications  thereof.  On  April  11. 
1908,  the  school  board  abandoned  all  pre- 
tense of  awarding  the  contract  to  build  thi' 
schoolhouse  to  Smith  &  Yokes,  and  adver- 
tised for  new  proposals  for  the  construction 
of  the  building.  On  April  22,  1908,  the  board 
entered  Into  a  contract  with  C.  E.  Welrschke 
for  the  construction  of  the  building. 

The  appellant's  claim  is  that  the  contract 
was  completed  by  the  action  of  the  board  ou 
February  24,  1908,  and  that  by  the  refusal  of 
Smith  &  Yokes  to  proceed  according  to  the  un- 
derstanding of  the  board  and  its  representa- 
tives, and  execute  a  written  contract  in  accord- 
ance with  their  views,  the  $900  which  had 
been  deposited  was  forfeited,  and  that  Smith 
&  Yokes  became  responsible  to  the  school 
board  for  damages  resulting  to  the  district. 
It  is  not  necessary  to  consider  the  various  le- 
gal propositions  raised  by  the  appellant,  be- 
cause we  are  clear  that  no  contract  was  made. 

The  order  of  the  trial  court  Is  therefore  af- 
firmed. 


FINNES  V.  SBLOYER,  BATES  &  CO. 
(Supreme  Court  of  Minnesota.     July  2,  190i».) 

1.  Ykndob  and  Pcbchaseb  (S  350*)  —  Ac- 
tions FOB  Bbeach— Evidence. 

In  an  action  for  damages  for  the  breach 
of  a  contract  to  sell  real  estate  it  appeared 
that  the  land  was  to  be  sold  subject  to  certain 
reservations  of  rights  of  way  for  railroads,  of 
coal,  oil,  and  other  minerals,  and  of  rights  of 
ingress  and  egress  to  prospect  for  minerals. 
The  court  instructed  the  jury  that  the  measun- 
of  damages  was  the  difference  between  tho 
value  of  the  land  as  it  was  contracted  to  b<> 
sold  and  delivered  to  him  and  the  amount  of 
the  purchase  price  remaining  unpaid,  with  ac- 
crued interest.  The  evidence  related  to  the 
value  of  the  land  without  reference  to  the  res- 
ervations. Held,  that  there  is  no  evidence  upon 
which  the  jnry  could  determine  the  value  of  th<> 
land  as  it  was  to  be  transferred. 

[Ed.  Note. — For  other  cases,  see  Vendor  and 
Purchaser,  Dec.  Dig.  §  350.*] 

2.  Yendob  and  Pttbchabeb  (J  350*)  —  Ac- 
tions —  BtJBDEN  OF  Pboof. 

The  burden  was  apon  the  plaintiff  to  show 
the  value  of  the  land  as  it  was  to  be  transfer- 
red to  him. 

[Ed.  Note.— For  other  cases,  see  Vendor  and 
Purchaser,  Dec.  Dig.  f  360.*] 

3.  Appeal  and  Ekbob  (§  233*)  —  Presenta- 
tion AND  Rebebvation  OF  Uboonds  OF  Rk- 

VIEW. 

It  appears  from  the  record  that  the  objec- 
tions to  questions  calling  for  value  of  the  land 


•For  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  LjOOQIC 


Minn.) 


FINNES  V.  SELOVER,  BATES  &  CX). 


175 


wpre  indefinite,  and  insuflSdent  to  direct  the 
attention  of  the  court  to  the  question  Involved ; 
but  npon  a  motion  for  a  directed  verdict  the 
pusition  of  the  defendant  was  clearly  stated. 
Held  that,  as  the  conrt  might  then  have  open- 
ed the  case  and  permitted  additional  evidence 
to  be  introdnced,  neither  court  nor  counsel  was 
misled,  and  the  objecting  party  may  avail  him- 
self of  the  fact  oi  the  absence  of  evidence  as 
to  the  value  of  the  land  subject  to  the  reserva- 
tions. 

[EM.  Note.— For  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  $  233.*1 

Start,  C.  J.,  and  Brown,  J.,  dissenting. 
•  Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Hennepin 
County:  David  F.  Simpson,  Judge. 

Action  by  Ole  A.  Flnnes  against  Selover, 
Bates  &  Co.  Verdict  for  plaintiff.  From  an 
'■>rder  denying  a  motion  for  judgment  not- 
withstanding the  verdict  or  for  a  new  trial, 
defendant  appeals.    Reversed. 

See,  also,  102  Minn.  334, 113  N.  W.  883. 

Arthur  W.  Selover,  for  api)ellant.  S.  R. 
Child  and  Benjamin  Drake,  for  respondent 

EULIOTT,  J.  In  this  action  the  plaintiff 
sought  to  recover  damages  for  the  failure 
of  the  defendant  to  carry  out  the  provisions 
of  two  certain  contracts  for  the  sale  of  real 
estate.  The  defendant  demurred  to  the  com- 
plaint, and  from  an  order  overruling  the 
same  appealed  to  this  court,  where  the  order 
of  the  trial  court  was  affirmed.  The  case  was 
then  tried  on  the  merits,  and  the  plaintiff  re- 
covered a  verdict  for  the  sum  of  $6,173.18. 
The  present  appeal  is  from  an  order  denying 
the  defendant's  motion  for  judgment  notwith- 
standing the  verdict  or  for  a  new  trial. 

The  facts  and  the  contracts  are  fully  stat- 
ed and  described  in  the  opinion  on  the  former 
appeal.  102  Minn.  334,  113  N.  W.  883.  The 
appellant  now  contends  (a)  that  the  contract 
set  up  in  the  first  cause  of  action  is  an  op- 
tion contract;  (h)  that  notice  of  the  termina- 
tion of  these  contracts  npon  lands  in  Colorado, 
according  to  the  laws  of  Minnesota,  is  not 
required;  and  (c)  that  the  Minnesota  statutes, 
if  construed  to  apply  to  laws  outside  of  the 
state,  would  be  unconstitutional.  These  ques- 
tions were  all  adjudicated  upon  the  former 
appeal  and  will  not  be  reconsidered. 

The  appellant  contends  that  there  is  no  evi- 
dence In  the  record  of  the  value  of  the  lands 
in  question,  taking  into  consideration  the 
fact  that  they  were  to  be  conveyed  subject  to 
numerous  reservations  of  rights  of  way  for 
railroads,  of  coal,  oil,  and  other  minerals,  of 
rights  of  ingress  and  egress  to  prospect  for 
minerals,  and  to  remove  what  might  be  found 
at  any  time  thereon.  Reservations  of  tbh9 
character  might  substantially  reduce  the  val- 
ue of  the  land,  and  the  measure  of  the  dam- 
ages was  tbe  difference  between  the  price 
which  Finnes  was  to  pay  therefor  and  the 
value  of  the  lands  subject  to  such  reserva- 


tions. The  court  eo  instructed  the  Jury.  The 
contracts  were  in  evidence,  and  disclosed  the 
reservations,  and  the  Jury  was  told  that  "if 
you  find  that  this  contract  was  violated,  and 
the  plaintiff  is  entitled  to  damages  for  Its 
breach,  the  measure  of  the  damage  would  be 
the  value  of  his  contract,  which  would  be 
the  value  of  the  land  as  it  was  contracted  to 
be  sold  and  delivered  to  him,  less  the  amount 
of  tbe  purchase  price  remaining  unpaid,  with 
all  accrued  interest"  WTilIe  the  charge 
might  have  been  more  specific,  it  is  conceded 
by  the  appellant  that  it  states  the  proper 
measure  of  damages;  but  the  claim  is  that 
there  Is  no  evidence  of  the  value  of  the  land 
"as  it  was  contracted  to  be  sold."  The  evi- 
dence is  all  directed  to  the  value  of  an  un- 
qualified fee  title  of  the  land,  without  refer- 
ence to  the  reservations.  The  plaintiff  was 
damaged,  if  at  all,  by  the  breach  of  the  con- 
tract to  sell  the  land  subject  to  all  the  reser- 
vations; but  he  recovered  on  proof  of  the 
value  of  the  land  Itself,  the  unqualified  fee, 
something  which  he  did  not  buy,  and  which 
he  was  not  to  receive.  The  serious  question 
is  as  to  the  burden  of  proof ;  the  respondent 
contending  that  in  the  absence  of  evidence 
to  the  contrary  it  should  be  presumed  that  no 
oil  or  minerals  existed  on  the  laud. 

The  question  of  the  effect  of  reservations  of 
this  character  has  generally  arisen  in  actions 
to  compel  specific  performance  of  contracts  to 
convey  real  estate,  and  the  rule  is  well  es- 
tablished that  a  purchaser  cannot  be  com- 
pelled to  complete  bis  purchase  or  accept  the 
title  If  the  land  is  subject  to  rights  of  way 
or  mineral  reservations.  Maupin,  Marketa- 
ble Title  to  Real  EsUte  (2d  Ed.)  i  305.  "A 
right  to  dig  for  mines  not  disclosed  would  be 
a  ground  to  set  aside  the  contract  at  the 
instance  of  the  purchaser.  But  purchasers 
may  take  tbe  title  with  a  compensation."  1 
Sugden  on  Vendors,  p.  473,  citing  Seaman  v. 
Baudray,  16  Ves.  390.  As  stated  in  Adams 
V.  Henderson,  168  U.  S.  573-580,  18  Sup.  Ct. 
179,  182,  42  L.  Ed.  584:  "A  good  and  inde- 
feasible title  in  fee  imports  such  ownership 
of  the  land  as  enables  the  owner  to  exercise 
absolute  and  exclusive  control  of  it  as  against 
all  others.  That  the  plaintiffs  have  no  such 
title  Is  too  clear  to  admit  of  dispute.  They 
hold  under  the  Union  Pacific  Railroad  Com- 
pany. They  accepted  a  conveyonce  from  that 
company,  which  expressly  reserved,  in  Its 
favor  and  without  limit  of  time,  an  exclusive 
right  not  only  'to  prospect  for  coal  and 
other  minerals  under  the  land  in  question,' 
and  to  'mine  for  and  remove  same  if  found.' 
but  'a  right  of  way  over  and  across  said 
lands  a  space  necessary  for  the  conduct  of 
such  business  thereon  without  charge  or  lia- 
bility for  damage  therefor.'  It  does  not  ap- 
pear that  the  railroad  company  Is  under  any 
legal  obligation  to  surrender  or  waive  this 
reservation.  The  plaintiffs  cannot  compel  it 
to  do  so.    •    •     *     So  that  the  plaintiffs  la 


•For  otlisr  CBa«s  see  same  topic  and  section  NUMBER  in  Dec.  &  Am.  Dlgi.  1907  to  date,  ft  Reporter  Indexei 


Digitized  by 


L-oogle 


176 


122  NORTHWESTERN  REPORTER. 


(Kflnn. 


effect  ask  that,  Instead  of  a  good  and  Inde- 
feasible title  In  fee  simple,  the  defendants 
shall  take  and  pay  for  land  Incumbered  with 
the  right  of  the  railroad  company  for  all 
time  to  pass  over  and  across  It  for  the  pur- 
pose of  prospecting  for  and  mining  minerals 
other  than  coal.  A  court  of  equity  could  not 
compel  the  defendants  to  take  and  pay  for 
land  thus  Incumbered  without  making  for  the 
parties  a  contract  which  they  did  not  choose 
to  make  for  themselves."  If  a  title  sub- 
ject to  such  reservations  Is  not  a  marketable 
title,  it  must  be  because  the  land  is  less  de- 
sirable with  than  without  the  reservations, 
and,  if  so,  its  value  Is  certainly  affected 
thereby.  In  Wlnne  v.  Reynolds,  6  Paige  (N. 
T.)  407,  it  was  held  that  a  reservation  of  min- 
eral rights  is  no  objection  to  the  title,  if  the 
evidence  shows  that  there  is  no  reason  to  be- 
lieve that  there  are  minerals  on  the  land. 
But  no  such  fact  appears  In  this  record,  and 
the  plaintiff,  having  contracted  to  purchase 
the  land  with  the  reservations,  when  seeking 
to  recover  the  value  of  the,  lands  without  the 
reservations,  had  the  burden  of  proving  that 
the  reservations  did  not  decrease  Its  value. 

But  it  is  said  that  no  proper  exceptions 
were  taken  to  enable  the  appellant  to  raise 
this  question.  The  jury  seem  to  have  accept- 
ed the  valuation  placed  upon  the  land  by  the 
witness  Ady,  who,  after  qualifying  as  an  ex- 
pert, placed  the  value  of  one  section  at  from 
f5  to  $6,  and  on  the  other  at  from  $C  to  $7, 
per  acre.  When  the  witness  was  asked  what, 
in  his  judgment,  was  the  value  of  section  13, 
township  15,  In  November,  1906,  the  ques- 
tion was  objected  to  by  the  defendant  as  "in- 
competent, irrelevant.  Immaterial,  no  proper 
foundation  has  been  laid  for  the  testimony, 
and,  further,  it  is  too  indefinite,  as  it  does 
not  name  any  range."  The  objection  was 
overruled,  and  witness  answered,  "My  best 
judgment  would  be  from  $6  to  |7  per  acre." 
To  the  question,  "What,  in  your  judgment, 
was  the  section  in  township  16  worth  in  No- 
vember, 1906?"  the  objection  was  that  it 
was  "Incompetent,  irrelevant,  and  immateri- 
al. But  I  will  say  in  this  case,  also,  it  does 
not  describe  any  particular  land,  and  that  a 
proper  foundation  has  not  been  laid."  Ob- 
jection overruled,  and  witness  answered: 
"From  $5  to  $6  per  acre."  A  few  moments 
later  the  defendant's  attorney  said:  "I  want 
it  understood  here  on  the  record  that  we 
don't  want  to  waive  our  general  objections  to 
the  Incompetency,  irrelevancy,  and  immateri- 
ality, by  omitting  to  object  to  any  one  of 
these  questions;  otherwise,  T  will  have  to 
object  each  time.  On  the  question  of  the  val- 
ue of  this  land,  we  claim  all  this  evidence 
is  irrelevant  and  immaterial.  The  Court: 
That  may  be  understood,  so  far  as  I  am  con- 


cerned, as  going  to  the  whole  deposition. 
Mr.  Selover:  The  whole  deposition;  thatgea- 
eral  objection.  Mr.  Child:  It  is  no  broader 
than  he  has  made  it  The  Court:  No;  on 
the  ground  that  he  does  not  believe  that  any 
evidence  as  to  value  Is  material  or  competent 
in  the  case.  That  particular  objection  may 
go  to  the  whole  deposition,  without  blm  re- 
peating it  each  time." 

It  is  probable  that  these  objections  were 
not  suflSdently  definite  to  direct  the  attention 
of  the  court  to  the  specific  objection  which 
the  defendant  had  In  mind.  The  evidence  of 
the  value  of  the  land  was  then  received,  and, 
being  In  the  case,  the  defendant  was  entitled 
to  controvert  It  by  other. evidence.  The  fact 
that  the  defendant,  when  making  its  case,  of- 
fered evidence  of  the  same  kind,  should  not 
be  considered  as  a  waiver  of  its  right  to  in- 
sist upon  the  objection,  if  It  was  properly 
made.  When  the  evidence  was  all  in,  the  de- 
fendant moved  for  an  Instructed  verdict,  and 
then  made  the  following  statement  to  the 
court:  "Another  ground  for  the  motion  as 
made  is  that  no  damages  have  been  proved  in 
this  action,  and  that  the  plaintiff  has  not 
shown  a  right  to  recover  any  damages  what- 
ever from  the  defendant.  I  wish  the  record 
to  show  the  nature  of  this  claim.  The  de- 
fendant further  claims  that  the  rjarket  value 
of  the  land  is  entirely  irrelevant  to  any  issue 
In  the  case,  and  does  not  prove  that  plaintiff 
has  suffered  any  damage  whatever.  Inasmuch 
as  there  is  no  evidence  whatever  of  the  value 
of  these  lands  at  any  time  subject  to  all  the 
reservations,  restrictions,  and  exceptions  men- 
tioned in  the  respective  contracts,  Exhibits 
A  and  B.  The  Court:  Motion  for  a  directed 
verdict  as  to  each  cause  of  action  by  the  de- 
fendant denied.  As  to  the  last  question,  I 
think  it  is  a  question  for  the  jury,  and  not 
for  the  court,  as  to  the  value."  The  -court 
then  Instructed  the  jury  as  above  stated. 

At  this  time  the  defendant's  position  was 
certainly  clearly  stated,  and,  If  it  had  then 
been  claimed  that  the  plaintiff  had  been  mi» 
led,  it  was  within  the  power  of  the  court  tt- 
have  opened  the  case  and  permitted  addition- 
al evidence  to  have  been  given.  The  jury 
had  no  evidence  before  it  upon  which,  under 
the  instructions  as  given,  it  could  properly 
estimate  the  value  of  the  land  as  contracted 
to  be  sold, -and  thus  determine  the  amount 
of  the  plalntltrs  damages.  It  fairly  appears 
that  defendant  preserved  its  rights.  The  or- 
der of  the  trial  court  is  reversed,  and  a  new 
trial  granted. 

Order  reversed  and  a  new  trial  granted. 

START,  C.  J.,  and  BROWN,  J.  The  ques- 
tion on  which  a  reversal  is  ordered  was  not 
litigated  in  the  court  below,  and  we  therefore 
dissent. 


Digitized  by 


Google 


MlchJ 


PEOPLE  T.  TURJA. 


177 


PEOPLE  V.  TUEJA. 
(Sapreme  Conrt  of  Michigan.    July  6,  1909.) 

1.  CRIUINAI.    LAtr    (t    1018*)  —  CSBTIOBABI — 

Gbounus. 

Although  as  a  general  rale  certiorari  will 
not  lie  from  the  Supreme  Court  to  a  justice 
court,  an  exception  to  the  rule  will  be  made  in 
the  case  of  a  ^irl  14  years  of  age  arrested  on  the 
charge  of  being  a  disorderly  juvenile  offender 
and  sentenced  to  the  reform  school  until  her  ma- 
jority, where  the  remedy  by  certiorari  to  the 
circuit  court  has  been  lost  by  lapse  of  time  and 
no  other  remedy  remains,  as  in  such  a  case  it  is 
necessary  to  allow  the  writ  to  prevent  a  failure 
of  justice. 

[Ed.  Note. — For  other  cases,  see  Criminal 
Law,  Dec.  Dig.  §  1018.*] 

2.  IKVAITTS  (8  16*)— CBiMEft— Punishment. 

Pub.  Acts  1903,  p.  348,  No.  221,  provides 
that  on  a  complaint  against  any  girl  under  17, 
charging  an  offense  not  punishable  with  impris- 
onment for  life,  it  shall  be  the  duty  of  the  mag- 
istrate before  proceeding  further  to  notify  the 
coonty  agent  of  the  state  board  of  corrections 
and  charities,  who  shall  have  opportunity  to  in- 
vestigate the  charge  and  report  to  the  said  mag- 
istrate, and,  if  upon  consultation  it  shall  appear 
to  the  public  interest  and  the  interest  of  the 
child,  summons  shall  issue  requiring  the  per- 
son having  custody  of  the  child  to  appear  with 
the  child,  and  on  return  of  the  summons  the 
conrt  shall  hear  and  dispose  of  the  case.  A 
emnplaint  was  lodged  by  a  father  before  a  jus- 
tice of  the  peace,  cbardng  his  daughter,  who 
was  14  'years  old,  with  neing  "a  disorderly 
juvenile  offender  in  that  she  neglected  and  re- 
fused to  go  to  school  and  was  a  truant  and  is 
an  unmanageable  child."  A  warrant  was  issued 
and  she  was  brought  into  court,  and  the  county 
agent  was  notified.  The  girl  pleaded  guilty,  and 
no  witness  except  her  father  was  sworn.  The 
county  agent  took  part  in  the  hearing  and  ad- 
vised with  and  counseled  the  justice;  the  girl 
was  found  guilty,  and,  on  recommendation  of 
the  coanty  agent,  was  sentenced  to  the  reform 
school  until  she  attained  the  age  of  2l  years. 
Beld.^  that  the  complaint  and  warrant  were  not 
sufficient,  there  being  no  allegation  as  to  the 
age  of  the  fiirl,  nor  that  she  was  not  excused 
from  attending  school,  nor  that  she  was  under 
parental  charge,  and  against  the  command  of 
the  parent  had  willfully  absented  herself  from 
school,  and  the  proceedings  and  requirements 
as  to  procedure  in  Act  No.  221  were  not  com- 
plied with,  and  the  judgment  and  sentence 
should  be  vacated  and  set  aside. 

[Ed.  Note.— For  other  cases,  see  Infants,  Dec. 
Dig.  «  16.*] 

3.  Infants    (|   16*)— Custody   and    Pbotbc- 
TioN — Statutobt  Pbovisionb. 

Pub.  Acts  1903,  p.  348,  No.  221,  providing 
for  the  arrest  of  children  who  have  committed 
offenses  not  punishable  by  law,  and  their  com- 
mitment to  the  reform  school,  must  be  construed 
as  favorably  as  iwssible  in  the  interest  of  the 
children. 

[E^.  Note.— For  other  cases,  see  Infants,  Dec. 
Dig.  i  16.*] 

Hannah  Tnija  was  convicted  of  being  a 
disorderly  juvenile  offender  and  an  unman- 
ageable child,  and  a  writ  of  certiorari  to  the 
jnstice,  before  whom  she  was  convicted,  was 
sned  ont  Jndgmoit  and  sentence  were  va- 
cated. 

Argned  before  BLAIR,  C  J.,  and  GRANT, 
MONTGOMERY,  McALVAT,  and  BR00E:E, 
W. 


William  J.  MacDonald,  Pros.  Atty.,  for  the 
People.    Burrltt  &  Burrltt,  for  defendant 

McALVAT,  J.  Respondent  was  charged 
January  26,  1909,  on  complaint  of  her  fa- 
ther, before  a  justice  of  the  peace,  with  being 
"a  disorderly  juvenile  offender.  In  that  she 
neglected  and  refused  to  go  to  school  and 
was  a  truant  and  is  an  unmanageable  child, 
contrary  to  the  form  of  the  statute." 

She  was  at  the  time  of  the  age  of  14  years 
and  8  months.  A  warrant  was  at  once  Is- 
sued returnable  forthwith,  and  placed  in  the 
hands  of  a  deputy  sheriff.  She  was  taken 
Into  custody  on  January  29th  and  brought 
into  court  The  county  agent  of  the  state 
board  of  corrections  and  charities  was  then 
for  the  first  time  notified  by  telephone,  and 
appeared  before  the  court  The  young  girl 
was  arraigned*  and  her  plea  of  guilty  taken. 
It  does  not  appear  that  any  witness  except 
the  father  was  sworn.  The  county  agent 
took  part  In  the  hearing  and  advised  with 
and  counseled  the  jnstice.  She  was  found 
guilty  as  charged,  and  on  the  recommenda- 
tion of  the  county  agent  she  was  sentenced 
to  the  reform  school  for  girls  at  Adrian  until 
she  attained  the  age  of  21  years.  A  commit- 
ment Issued  February  1,  1909.  The  Justice 
returns  that  the  county  agent  did  not  make 
a  written  report  to  him  until  after  sentence. 
The  respondent  was  taken  to  Adrian,  and  Is 
now  held  in  that  institution  by  virtue  of  this 
commitment  She  was  not  represented  by  an 
attorney  In  this  case,  and  the  attorneys  who 
present  her  case  to  this  court  have  sought 
a  review  by  a  common-law  writ  of  certiorari, 
upon  the  ground  that  a  remedy  by  certiorari 
to  the  circuit  court  was  lost  by  lapse  of  time, 
and  no  other  remedy  remained. 

As  a  general  rule,  certiorari  will  not  lie 
from  this  court  to  justice  courts.  In  cases 
where  It  is  necessary  to  prevent  a  failure  of 
Justice,  an  exception  is  made  and  the  com- 
mon-law writ  allowed.  Wlthington  v.  South- 
worth,  26  Mich.  381,  Adams  v.  Abrams,  38 
Mich.  302;  White  v.  Boyce,  88  Mich.  349,  50 
N.  W.  302.  In  our  opinion,  this  case  comes 
within  the  exception,  and  the  errors  relied 
upon  by  respondent  will  be  considered.  The 
fact  that  in  this  case  a  person  is  under  a 
sentence  which  will  deprive  her  of  her  lib- 
erty for  a  term  of  years  adds  force  to  the 
reasoning  of  the  cases  cited,  in  which  only 
property  of  a  smaU  amount  was  Involved. 

It  is  assumed,  and  not  contradicted  by  the 
representative  of  the  people,  that  this  case 
was  brought  under  the  provisions  of  Act  No. 
221,  p.  848,  Pub.  Acts  1903.  Errors  are  al- 
leged upon  the  insufficiency  of  the  complaint 
and  warrant  in  alleging  no  offense,  and  in 
the  warrant  having  been  Issued  liefore  no- 
tice to  and  a  written  report  by  the  county 
agent,  and  also  In  proceeding  to  a  conviction 
and  sentence  before  such  report  was  made. 
As  the  basis  of  proceedings  to  justify  a  con- 


Vm  other  eaaoa  soa  same  topic  and  section  NTMBER  In  Dec.  A  Am.  Digs.  ISO?  to  date,  &  Reporter  Indexes 
122N.W.— 12 


Digitized  by 


Google 


178 


122  NORTHWESTERN  REPORTER. 


(Micb. 


victlon  and  sentence  to  Imprisonment  for  a 
term  of  years,  tne  complaint  and  warrant 
are  not  sufficient.  The  substance  of  the 
charge  has  already  been  given.  There  Is  no 
allegation  as  to  the  age  of  the  girl ;  that  she 
was  not  excused  from  attending  school ;  that 
she  was  under  parental  charge,  and  against 
the  command  of  the  parent  had  willfully  ab- 
sented herself  from  the  school  she  was  at- 
tending, as  provided  by  the  statutes  which 
define  truancy. 

The  requirements  of  the  statute  relative 
to  the  notice  to  and  report  of  the  county 
agent  were  not  complied  with.  This  statute 
must  be  construed  as  favorably  as  possible 
In  the  Interests  of  these  children.  The  legis- 
lative intent  was  to  have  this  preliminary 
investigation  to  determine  whether  a  war- 
rant should  be  Issued,  and  a'  report  to  the 
justice  before  issuing  it.  It  is  clear  from  the 
record  before  us  that  the  Justice  court  ob- 
tained no  Jurisdiction  over  respondent,  and 
that  the  proceedings  were  void.  Careful 
supervision  by  officers  thereto  authorized,  in 
the  few  counties,  Including  Houghton,  where 
this  act  continues  to  be  operative  since  the 
Juvenile  court  act  was  passed,  will  avoid  a 
recurrence  of  the  errors  found  in  this  case. 

For  the  errors  pointed  out,  the  Judgment 
and  sentence  is  vacated  and  set  aside,  and 
this  young  girl  will  be  released  from  her 
confinement.  She  will  be  returned  to  Hough- 
ton county  in  charge  of  a  woman  appointed 
for  that  purpose  by  the  proper  authority 
and  at  the  charge  of  the  county. 

These  proceedings  will  l>e  without  preju- 
dice to  any  proper  investigation  by  the  prop- 
er authorities. 


STUOHSCHEIN  v.  KUANICH  et  al. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

1.  Judgment  ({  238*)— Actions  —  Pasties — 
Joint  Defendants. 

In  an  action  against  defendants  jointly  on 
a  joint  agreement,  plaintiff  could  not  discon- 
tinue against  part  of  defendants  and  recover 
against  one  of  them  alone. 

[Ed.  Note.— For  other  cases,  see  Judgment, 
Cent.  Dig.  §  416;    Dec  Dig.  §  238.*] 

2.  Justices  of  the  Peace  (|  173*)- Appeai/— 
Scope  of  Remedy— Issues  Tried  Below— 
Cha.\ge  of  Cause  of  Action  on  Appeal,. 

Where  an  action  in  a  justice's  court  was 
against  several  defendants  jointly  on  their  joint 
agreement,  an  appeal  by  only  one  of  defendants 
to  the  circuit  court  did  not  authorize  a  trial 
therein,  on  the  theory  of  an  individual  liability 
by  appellant ;  the  appeal  bringing  up  the  case 
for  tnal  upon  the  issue  made  below. 

[EU.  Note. — For  other  cases,  see  Justices  of 
the  Peace,  Cent.  Dig.  f!  660-664;  Dec.  Dig. 
i  173.*] 

.'{,  Joint  Adventubes  ({  7*)— Contracts — 
Joint  Liability. 

Appellant  purchased  a  third  interest  in  a 
paper  as  an  investment,  and  thereafter  the  own- 
er sold  the  other  two-thirds  to  the  other  de- 
fendants, who  managed  the  businesii,  but  there 
was  no  agreement  between  them  and  appellant 


as  to  sharing  profits,  and  the  latter  never 
agreed  to  pay  any  debts  Incurred  for  the  publi- 
cation of  the  paper,  and  had  no  knowledge  of 
the  account  on  which  plaintiff  sued,  which  was 
for  printing  the  paper,  etc.  Held,  that  appel- 
lant 8  ownership  in  the  paper  under  the  circum- 
stances would  not  make  bim  jointly  liable  with 
the  other  defendants  on  a  contract  made  by 
them  without  his  knowledge  or  consent 

[Ed.  Note.— For  other  cases,  see  Joint  Ad- 
ventures, Dec.  Dig.  i  7.*] 

Error  to  Circuit  Court,  Wayne  County; 
Alfred  J.   Murphy,  Judge. 

Action  by  William  F.  Strohschein  against 
Edward  R.  Kranich,  impleaded  with  others, 
doing  business  as  the  Cement  Era  Publishing 
Company.  Judgment  for  plaintiff  against 
the  defendant  named,  and  he  brings  error. 
Reversed,  and  new  trial  ordered. 

Argued  before  BLAIR,  C.  J.,  and  GRANT. 
MONTGOMERY,  McALVAY.  and  BROOKE. 
JJ. 

James  Swan,  for  appellant  H.  H.  Wait, 
for  appellee. 

McALVAT,  J.  Plaintiff  brought  suit  In 
Justice  court  against  four  defendants,  copart- 
ners, doing  business  under  the  name  of  Ce- 
ment Era  Publishing  Company.  The  action 
was  in  assumpsit  for  goods  sold  and  deliv- 
ered. Plaintiff  recovered  a  judgment  for 
1200.25,  damages  and  costs  of  suit.  Defend- 
ant Kranich  appealed  to  the  circuit  court. 
Before  stating  the  result  of  the  trial  In  that 
court,  it  will  be  helpful  to  the  understanding 
of  the  controversy  to  give  certain  material 
facts.  D.  L.  Curtlss,  on  May  12,  1906,  and 
for  some  time  previous,  was  the  owner  and 
publisher  of  a  certain  publication  In  Detroit, 
call  the  "Cement  Era."  On  that  date,  for  a 
cash  consideration  of  $1,000,  he  sold  to  de- 
fendant Kranich  an  undi\Mded  one-third  in- 
terest in  said  publication,  together  with  good 
will,  accounts,  and  property  belonging  there 
to,  by  a  written  bill  of.  sale  warranting  title 
free  from  all  liens,  and  agreeing  to  pay  all 
claims.  If  any,  of  prior  date.  Afterwards,  on 
the  same  or  the  following  day,  he  entered 
into  a  written  contract  with  the  defendants 
Schmidt,  Wolfrom  &  Sovereign,  who  were  n 
copartnership,  to  sell  them  an  undivided  two- 
thirds  interest  In  said  "Cement  Era,"  and  all 
the  property,  etc.,  belonging  thereto,  for  the 
sum  of  $1,000  to  be  paid  in  monthly  Install- 
ments of  $50  each,  according  to  20  promissory 
notes  executed  by  them ;  title  being  reserved 
In  Curtlss  until  paid,  and  said  parties  tu 
have  possession  and  use  of  the  property  in 
the  ordinary  course  of  business  so  long  as  not 
in  default.  The  firm  of  Schmidt,  Wolfrom 
&  Sovereign  chose  Wolfrom  to  manage  this 
business,  which  duties  be  at  once  assumed 
and  continued  as  long  as  they  were  Interested 
In  the  property.  The  record  shows  that 
Kranich  made  this  purchase  as  an  invest- 
ment, and  that  he  was  never  actively  engaged 
in  the  conduct  of  this  publication,  and  there 


•For  other  cmm  ■••  same  topic  and  leetioa  NUMBER  In  Dec.  tc  Am.  Digs.  190T  to  date,  ft  Reporter  IndezM 


Digitized  by  VjOOQ  l€ 


MiclL) 


HARRIS  V.  BOUTWELL. 


179 


is  no  erideuce  In  the  case  tending  to  show 
oopartnersblp  relations  between  Kranlch  and 
the  other  defendants.  Plaintiff  Is  proprietor 
and  manager  of  a  printing  business  in  De- 
troit, and  his  claim  against  defendants  is 
for  paper,  wrappers,  cuts,  etc.,  fnmlshed  In 
printing  and  mailing  the  Cement  Era  for  the 
months  of  May  and  June,  1006,  amounting 
to  $430.25,  upon  which  Wolfrom  and  Baom- 
gartner,  the  party  who  purchased  the  entire 
property,  June  30,  1906,  made  payments 
amounting  to  $230.  Defendant  Kranlch  was 
mrlously  sick  at  the  time  of  the  trial,  and  not 
able  to  attend  and  testify.  Upon  the  trial 
of  the  case  the  court  Instructed  the  Jury  that 
no  copartnership  relations  between  Kranlch 
and  the  three  other  defendants  had  been 
shown;  nevertheless  the  four  were  Joint  own- 
ers of  the  property,  that  It  appeared  that 
they  Intrusted  active  management  of  the 
property  to  Mr;  Wolfrom,  and  that  there  was 
an  agreement  between  the  four  Joint  owners 
that  they  were  to  share  in  the  profits,  If  any, 
according  to  their  interests,  and  such  agree- 
ments made  them,  as  Joint  owners,  liable  for 
any  goods  furnished  and  used  in  the  publi- 
cation of  their  paper.  He  further  charged 
the  jury  that  Kranlch  was  the  only  defend- 
ant In  the  case,  and,  though  the  only  defend- 
:int,  he  would  be  liable  for  the  amount  and 
value  of  the  items  of  plalntlfTs  claim  which 
were  proved  In  the  case  as  actually  delivered 
and  used  in  the  publication  of  the  paper. 
From  a  Judgment  against  him  alone,  entered 
upon  a  verdict  for  the  amount  claimed  by 
plaintiff,  defendant  Kranlch  brings  the  case 
to  this  court  by  writ  of  error. 

The  errors  assigned  which  will  be  neces- 
sary to  consider  relate  to  the  holdings  and 
charges  of  the  court  above  outlined.  These 
defendants  were  proceeded  against  Jointly, 
upon  a  Joint  agreement  declared  tipon,  and  a 
Judgment  was  entered  in  Justice  court  against 
them  founded  upon  such  agreement.  The 
)!eneral  appeal  of  defendant  Kranlch  was  au- 
thorized by  the  statute,  and  brought  the 
wliole  case  to  the  circuit  court  upon  the  is- 
sue made  and  tried  In  Justice  court.  The  In- 
struction of  the  court  In  this  case  seems  to 
have  gone  upon  the  theory  that,  because  but 
one  defendant  had  appealed,  the  Joint  obliga- 
tion upon  which  a  recovery  was  had,  and 
which  was  asserted  In  the  court  of  original 
jurisdiction,  was  changed  Into  an  Individual 
liability  in  the  circuit  court  Plaintiff  could 
not  in  this  case  have  discontinued  against 
the  other  defendants  and  recovered  against 
Kranlch  alone.  The  only  theory  of  plaintiff's 
case  was  that  of  Joint  liability.  Anderson 
r.  Robinson,  38  Mich.  409;  Fay  et  al.  v. 
Jenks  et  al.,  78  Mich.  312,  44  N.  W.  380,  and 
i-ases  cited.  There  are  some  exceptions  to 
Ibis  rule,  where  disability  of  infancy  or 
bankruptcy,  etc.,  may  exist.  The  action  of 
the  court  was,  in  effect,  doing  what  the  par- 
ties could  not  do.     Wright  v.  Reiuelt,  ^is' 


Mich.  638,  77  N.  W.  246.  The  instruction 
complained  of  was  erroneous. 

The  court  found  that  this  was  not  a  copart- 
nership, and  the  record  sustains  such  find- 
ing. It  also  found  and  Instructed  the  Jury 
"that  defendant  Kranlch  owned  an  undivid- 
ed one-third  interest,  and  the  other  three 
Jointly  owned  an  undivided  two-thirds  in 
this  property,  and  that  the  four  Joint  own- 
ers Intrusted  the  management  of  the  paper 
to  Wolfrom,  and  that  there  was  an  agree- 
ment between  the  four  that  they  were  to 
share  In  any  profits,"  etc  The  record  shows 
that  these  parties  did  own  the  interests  as 
designated,  but  it  does  not  show  that  there 
was  any  agreement  relative  to  sharing  proflte. 
It  appears  that  Kranlch  never  knew  anything 
about  this  account,  or  was  consulted  about  it 
or  any  other  accounts.  There  Is  no  agree- 
ment, express  or  implied,  that  defendant 
Kranlch  ever  agreed  with  the  others  to  pay 
any  accounts.  Kranlch  was  not  known  to 
plaintiff.  The  court  charged  that  these  agree- 
ments made  them  liable  as  Joint  owners  for 
any  goods  furnished  by  plaintiff.  It  alread.v 
appears  that  the  record  does  not  show  th«- 
agreements  the  court  relied  on,  and  th<- 
mere  fact  that  defendant  Kranlch  owned  an 
Interest  in  this  property,  which,  as  far  as  this 
plaintiff  was  concerned,  was  his  only  relation 
to  It  and  to  this  transaction,  would  not  make 
him  liable  upon  contracts  made  by  the  other 
owners.  In  which  he  took  no  part,  and  with 
which  he  was  not  connected.  The  court  was 
In  error  In  so  holding  and  charging  the  Jury. 
and  under  the  evidence  should  have  Instruct- 
ed a  verdict  for  defendant,  as  requested,  on 
the  ground  that  no  Joint  liability  had  been 
shown. 

For  the  errors  pointed  out,  the  Judgment 
is  reversed,  and  a  new  trial  ordered. 


HARRIS  V.  BOUTWELL. 

(Supreme  Court  of  Michigan.     April  28,  1900.) 

1.  Drains    (|    62*)— Establishment— Riguts 
OF  Abuttino  Pbopbietors. 

That  a  drain  was  established  under  the 
statute  along  the  bed  of  a  stream,  except  with 
an  occasional  cut  to  straighten  the  stream  and 
Increase  the  rapidity  of  the  flow,  does  not  affect 
the  rights  of  the  public  or  of  abutting  propri- 
etors along  the  stream,  and  the  abutting  owners 
may  drain  their  land  into  the  drain,  but  tbey 
cannot  deepen  the  channel  of  a  stream  serving 
as  an  outlet  of  a  lake  to  the  damage  of  lower 
proprietors. 

[Ed.  Note.— For  other  cases,  see  Drains,  Dee. 
Dig.  t  62.*) 

2.  Dbains  (S  52*)— Maintknanck. 

Where  a  drain  has  once  been  legally  madv, 
there  is  at  least  a  presumption  that,  if  necex- 
sary  at  all,  it  should  be  kept  in  reasonable  or- 
der. 

[Ed.  Note.— For  other  cases,  see  Drains,  Cent 
Dig.  g  03;   Dec.  Dig.  ^  52.*] 

3.  Dbains  (|  40*)— Establishment. 

A  drain  was  constructed,  under  the  statntc, 
by  widening  and  deepening  the  bed  of  a  stream. 


♦For  other  cmm  —  mm*  topic  sod  ••ctlon  NtJMBKR  fn  Deo.  *  Am.  Dl«».  1907  to  d«te,  A  Reporter  Indexes 


Digitized  by  VjOOQ  IC 


1£0 


122  NORTHWESTBBN  REPORTEB. 


(MIclL 


The  drain  became  obstructed  by  sand  and 
weeds.  A  proposed  drain  would  carry  the  water 
from  a  lake  Into  the  drain.  Beld,  tliat  an  own- 
er of  land  abutting  on  the  existing  drain  was 
entitled  to  restrain  the  construction  of  the  pro- 
posed drain  until  the  existing  drain  had  been 
cleaned  out  to  its  original  deptb  and  width. 

[Ed.  Note.— For  other  cases,  see  Drains,  Dec. 
Dig.  {40;*    Injunction,  Cent.  Dig.  §  150.] 

Appeal  from  Circuit  Court,  Shiawassee 
County,  In  Chancery;  Selden  S.  Miner,  Judge. 

Suit  by  Mary  E.  Harris  against  Joba 
Boutwell.  From  a  decree  dismissing  the  bill, 
complainant  appeals.  ReTersed  and  rendered. 

Complainant  seeks  In  this  suit  to  restrain 
the  construction  of  a  drain  known  as  the 
"Hemingway  Lake  Drain."  The  defendant 
Is  the  county  drain  commissioner.  It  Is  con- 
«eded  In  the  bill  of  complaint  that  the  pro- 
•ceedlngs  to  lay  out  this  drain  are  regular. 
The  sole  ground  upon  which  complainant 
veeks  to  restrain  Its  construction  Is  that  It 
will  precipitate  additional  water  upon  a  por- 
tion of  her  farm,  thereby  causing  her  In- 
Jury.  The  outlet  of  the  proposed  drain  Is 
Into  the  liOoklng-OIass  river,  or  the  Looking- 
Olass  river  drain  above  complainant's  land. 
liOOklng-Glass  river  Is  a  well-defined  and 
meandered  stream,  narrow  In  some  places 
and  wide  In  others.  The  Looklng-Glass  riv- 
er drain  was  constructed  some  years  ago 
along  the  bed  of  the  stream,  except  in  places 
where  It  was  constructed  to  straighten  the 
river.  The  claim  of  the  complaint  Is  that 
the  Looking-Glass  river  drain  has  become 
filled  with,  and  the  fiow  of  water  obstruct- 
ed by,  sand,  grass,  and  weeds  in  Its  bed,  and 
bushes  along  its  aides,  and  will  not  carry  off 
the  additional  water  which  will  flow  Into 
it  through  the  Hemingway  Lake  drain.  The 
Hemingway  Lake  drain  is  constructed  along 
a  well-defined  watershed,  leading  from  Hem- 
ingway Lake  to  the  Looklng-Glass  river,  or 
ttie  Looklng-Glass  river  drain,  which  are 
substantially  the  same  thing,  and  will  be 
herein  referred  to  as  the  "Looking-GIass  Riv- 
er Drain."  The  court  In  Its  decree  required 
that  for  20  rods  the  drain  shall  be  a  covered 
one  with  20-Incb  tile.  Proofs  were  taken  in 
open  court,  and  the  bill  dismissed. 

Albert  L.  Chandler  and  Arthur  E.  Cole,  for 
appellant     O'Dell  Chapman,  for  appellee. 

GRANT,  J.  (after  stating  the  facts  as 
above).  The  land  through  which  the  Look- 
ing-Glass runs  is  low  with  occasional  ele- 
vations on  one  of  which  the  complainant's 
farm  buildings  are  situated.  The  Looklng- 
Glass  river  drain  is  virtually  a  widening  and 
deepening  of  the  bed  of  the  river,  with  an  oc- 
casional cut  for  the  purpose  of  straightening 
and  Increasing  the  rapidity  of  the  flow.  It 
la  a  natural  stream,  The  fact  that  proceed- 
ings were  taken  under  the  statute  to  make  It 
a  drain  does  not  affect  the  right  of  the  pub- 
'11c  or  of  parties  owning  lands  along  it.  Abut- 
ting owners  have  a  right  to  drain  land  Into 


Looklng-Glass  river  drain  (Treatt  t.  Bates, 
27  Mich.  390;  Waffle  v.  N.  T.  CenU.  B.  Co., 
53  N.  y.  11,  13  Am.  Rep.  467),  but  they  can- 
not deepen  the  channel  of  a  stream,  serving 
as  an  outlet  for  a  lake,  to  the  damage  of  the 
lower  owners  (Eauffman  v.  Qrlesemer,  26 
Pa.  407,  67  Am.  Dec.  437 ;  Hyatt  v.  Albro,  121 
Mich.  638,  80  N.  W.  641). 

Some  of  the  complainant's  land  in  times  of 
high  water  is  usually  flooded.  To  what  ex- 
tent the  drain  will  add  to  that  flood  so  as  to 
Injuriously  affect  complainant's  land  is  not 
clear.  Except  in  times  of  high  water,  the 
Looklng-Glass  river  drain  would  afford  a 
sufficient  outlet  The  circuit  Judge  evidently 
found  that  the  additional  flow  of  water  caus- 
ed by  the  Hemingway  Lake  drain  was  not 
sufficient  to  injuriously  affect  her  land,  and 
must  also  have  found  that  the  drain  was  nec- 
essary for  the  public  health.  The  circuit 
Judge  filed  no  opinion.  Upon  a  careful  re- 
view of  the  evidence,  we  conclude  that  in 
times  of  high  water  the  proposed  drain  does 
not  cast  an  additional  quantity  of  water  up- 
on complainant's  land.  This  court  has  said 
that,  "where  a  drain  has  once  been  legally- 
made,  there  is  at  least  a  presumption  that, 
if  necessary  at  all.  It  should  be  kept  in  rea- 
sonable order."  Barker  v.  Township  of  Ver- 
non, 63  Mich.  516,  30  N.  W.  175.  See,  also, 
Sturm  V.  Kelly,  120  Mich.  685,  79  N.  W.  930. 
No  steps  apparently  have  been  taken  to 
clean  out  the  Looking-Glass  river  drain, 
which  as  constructed  carried  off  the  water 
more  rapidly  than  did  the  orl^al  river. 

After  the  parties  had  rested,  the  complain- 
ant, with  her  solicitor,  and  the  defendant, 
witiiout  the  presence  of  his  solicitor,  entered 
into  a  written  stipulation  of  settlement  by 
which  It  was  agreed  that  the  defendant 
should  be  restrained  from  proceeding  with 
the  construction  of  the  Hemingway  Lake 
drain  until  the  Looking-Glass  river  drain 
was  widened  and  deepened  and  made  a  suf- 
ficient outlet;  that  the  complainant  was  to 
pay  $35,  the  commissioner's  expense,  in  lay- 
ing out  the  Hemingway  Lake  drain,  and 
that  each  party  should  pay  their  own  costs. 
The  others  owning  lands  along  the  Looking- 
Glass  river  drain,  and  claiming  that  they 
would  be  injuriously  affected  by  the  con- 
struction of  the  Hemingway  Lake  drain,  had 
combined  to  assist  the  complainant  and  bear 
the  proportionate  share  of  the  expense  of 
the  suit  The  defendant  represented  those 
who  were  Interested  In  the  construction  of 
the  Hemingway  Lake  drain.  This  stipula- 
tion was  subsequently  brought  to  the  atten- 
tion of  the  court,  and  testimony  taken  in  re- 
gard to  it  The  defendant  and  those  he  rep- 
resented appear  to  have  been  satisfied  with 
the  settlement  provided  it  was  legal.  Evi- 
dence was  introduced  showing  the  circum- 
stances under  which  it  was  made.  The 
court  refused  to  ratify  the  stipulation  until 
it  waa  signed  by  all  the  parties  Interested 


'For  oUMr  ea«M  «e«  same  toplo  and  lactlon  NUMBER  In  Dae.  *  Am.  Digs.  VXT!  to  dat*.  *  R«port«r  IndazM 


Digitized  by  VjOOQ  l€ 


Midi.) 


GOBHAM  T.  JOHNSON. 


181 


In  tbe  drain,  holding  that  It  was  not  binding: 
nntll  it  was  so  signed.  Both  parties  in  this 
court  ignore  this  stlpnlatlon,  and  have  treat- 
ed it  as  of  no  effect  We  therefore  have  not 
the  benefit  of  an  argument  upon'  it,  and 
should  not  decide  Its  validity  without  call- 
ing for  additional  briefs.  We  will  therefore 
dispose  of  the  case  without  determining  the' 
validity  of  the  stipulation. 

The  necessity  of  cleaning  out  the  Looking- 
Glass  river  drain  Is  apparent.  The  burden 
of  taking  steps  to  clean  out  that  drain  should 
not  be  cast  upon  the  complainant.  We  think 
she  is  entitled  to  a  decree  restraining  the 
construction  of  the  Hemingway  Lake  drain 
until  the  Looklng-Glass  river  drain  is  clean- 
ed oat  to  its  original  depth  and  width,  and 
that  when  this  is  done  the  defendant  may 
proceed  with  the  constrnction  of  the  Hem- 
ingway Lake  drain. 

A  decree  will  be  so  entered.  Tinder  the 
circumstances,  no  costs  will  be  allowed  to 
either  party  in  this  court  or  in  the  court  be- 
low. 


GORHAM  V.  JOHNSON,  Highway  Com'r. 
(Supreme   Court  of  Michigan.     July  0,1909.) 

1.  Cebtiokabi  ({  70*)— Wbit  of  Ekror— Re- 
view. 

On  writ  of  error  to  review  a  judgment  of 
the  circuit  court  on  certiorari  to  review  the  ac- 
tion of  the  highway  commissioner  in  laying  out 
a  highway;  the  Supreme  Court  will  disregard 
the  uidlnga  of  fact  by  the  circuit  court  and  dis- 
pose of  tbe  case  on  the  return  to  the  writ,  wliich 
must  be  taken  as  true. 

[Ed.  Note.— For  other  cases,  see  Certiorari, 
Cent.  Dig.  {  203;   Dec.  Dig.  i  T0.»] 

2.  HiOHWATB  (S  30*)— Establishment  —  No- 
tice or  Application  —  SnavicE  —  "High- 
way." 

Under  Comp.  Laws  1897,  f  4038,  requiring 
service  of  notice  of  application  for  the  laying 
out  of  a  public  highway,  where  an  application 
prayed  the  establishment  of  a  public  highway, 
uie  omission  of  the  word  "public"  before  the 
word  "highway"  in  the  notice  was  not  fatal, 
where  the  notice  was  personally  served,  and 
there  was  no  claim  that  landowners  on  whom 
it  was  served  did  not  know  the  object  of  the  ap 
plication,  especially  as  the  notice  could  apply 
to  no  other  than  a  public  highway ;  "highways'' 
being  public  ways  as  contradistinguished  from 
private  ways. 

[Ed.  Note.— For  other  cases,  see  Highways, 
Cent.  Dig.  t  63;   Dec.  Dig.  {  30.* 

For  other  definitions,  see  Words  and  Phrases, 
VOL  4,  pp.  8291-3306;  vol.  8,  p.  7678.] 

8.  HioHWATS  ({  80*)— Ebtablishubnt— No- 
tic*  —  Necessitt  fob  PoemNG  —  Statutobt 
Pbovisionb. 

Under  Comp.  Laws  1897,  I  4038,  requiring 
that  notice  of  an  application  for  the  establish- 
ment of  a  highway  shall  be  served  on  the  owners 
or  occupants  of  lands  through  which  it  is  pro- 
posed to  lay  out  the  liighway,  either  personally, 
or  by  a  copy  left  at  the  residence  of  each  owner 
or  occupant,  and  that  if  no  person  resides  on 
the  lands,  and  the  owner  does  not  reside  in  the 
township,  such  notice  shall  be  served  by  posting 
in  three  public  places,  etc.,  where  a  notice  was 

•Vor  wthet  eases  Me  tame  topic  and  eectiOD  NOMBBR  la  Deo.  *  Am.  Diga.  1M7  te  date,  ft  Rcoorter  Indexes 


personally  served,  it  was  unnecessary  te  post 
copies  thereof. 

[Ed.  Note.— For  other  cases,  see  Highways, 
Cent.  Dig.  i  64;   Dec.  Dig.  S  SO.*] 

4.  Highways  (|  30*) — Establishment— No- 
TICK  or  Application— Paoop  of  Sebvice. 

Where  the  record  and  return  of  the  commis- 
sioner in  proceedings  for  the  laying  out  of  a 
highway  contained  a  copy  of  the  notice  of  the 
application,  and  proof  by  the  afBdavlt  of  the 
commissioner  that  the  notice  was  properly 
served,  it  sufficiently  appeared  that  proof  of 
service  was  made,  and  was  before  tbe  commis- 
sioner at  the  time  his  action  was  taken,  though 
such  facts  were  not  stated  in  the  record  and  re- 
turn. 

[Ed.  Note.— For  other  cases,  see  Highways, 
Cent  Dig.  (  69 ;  Dec.  Dig.  {  30.*] 

5.  Highways  (§  60*)— Ebtablishhent— Fxo- 

CEEDINOS    OF    COMICISSIONEBS. 

There  is  no  statute  requiring  that  the  rec- 
ord and  return  of  the  commissioner  in  proceed- 
ings for  the  laying  out  of  a  highway  should 
show  more  than  that,  at  the  meeting  prior  to  the 
commissioner's  proceeding  to  view  the  premises, 
the  commissioner  and  others  assembled,  and 
that  there  was  a  discussion  between  them  about 
the  laying  out  of  the  highway,  after  which  they 
dispersed,  nor  requiring  any  minutes  of  what 
was  said,  or  any  reports  of  the  discussion  to  be 
made. 

lEA.  Note.— For  other  cases,  see  Highways, 
Cent  Dig.  {}  16fr-172;   Dec.  Dig.  i  50.*] 

6.  Highways  (|  60*)— Establishment- Rec- 
ord AND  RErrUBN  OF  COUMISSIONEB — MAP 
AND    SUBVEY— SlONATUBE   OF  COMMIBSIONEB. 

Comp.  Laws  1897,  {  4041,  requires  that, 
within  five  days  after  final  determination  on 
an  application  for  laying  out  a  highway,  the 
commissioner  shall  file  a  full  record  and  return 
of  bis  doings  in  the  premises,  and  that  such  rec- 
ord shall  also  embrace  a  map  of  the  road,  with 
minutes  of  the  survey  signed  by  the  surveyor, 
etc.,  all  of  which  shall  be  signed  by  the  commis- 
sioner. Beld  that,  where  the  map  and  survey 
were  not  signed,  but  were  made  a  part  of  the 
signed  return,  and  filed  and  recorded  therewith, 
they  were  to  be  treated  a^  signed  by  the  com- 
missioner within  the  meaning  of  the  statute. 

[Ed.  Note.— For  other  cases,  see  Highways, 
Cent.  Dig.  IS  169-172 ;   Dec.  Dig.  {  50.*] 

Error  to  Circuit  Court,  Kent  County;  Wil- 
lis B.  Perkins,  Judge. 

Application  by  George  W.  Gorham,  for 
writ  of  certiorari  to  review  the  action  of 
Thomas  C.  Johnson,  Highway  Commissioner 
of  Cascade  Township,  in  laying  out  a  high- 
way. Judgment  for  defendant,  and  plaintiff 
brings  error.    Affirmed. 

Argued  before  BLAIR,  O.  J.,  and  MONT- 
GOMERY, HOOKER,  McALVAT,  and 
BROOKE,  JJ. 

William  B.  Brown,  for  appellant  Smed- 
ley  &  Oorwln,  for  appellee. 

HOOKER,  J.  The  plaintiff  in  error,  an 
owner  of  premises  sought  to  be  taken  for  a 
highway,  took  the  proceedings  of  the  com- 
missioner to  the  circuit  court  by  certiorari, 
and  was  defeated.  The  cause  is  before  us 
on  case-made,  containing  the  affidavit  for 
certiorari,  the  return  to  the  writ  by  the  com- 
missioner— ^whlch  includes  a  certlfled  copy 
of  bis  record  and  return  to  tbe  town  clerk— 
and  statement  of  the  commissioner's  doings 


Digitized  by  VjOOQ  l€ 


182 


122  NORTHWESTERN  REPORTER. 


(Mich. 


in  the  matter,  and  a  finding  of  fact  and  law 
by  the  circuit  judge.  We  are  asked  to  re- 
verse, the  Judgment  of  the  circuit  judge  upon 
14  assignments  of  error  to  the  findings  of 
the  circuit  judge.  In  dealing  with  this  case 
we  must  disregard  the  finding  of  fact,  and 
dispose  of  It  on  the  return,  which  must  be 
taken  as  true.  There  are  14  allegations  of 
error  in  the  nfildavlt  for  certiorari.  Most  of 
these  are  technical  in  their  nature,  and  are 
l)redlcated  on  the  record  and  return,  which 
counsel  claims  falls  to  show  compliance  with 
the  requirements  of  the  statute  In  essential 
particulars. 

1.  Petition. 

The  petition  Is  Included  In  the  report  It 
seems  to  be  regular  In  form  and  substance. 
It  Is  nrged  that  the  report  falls  to  show 
when  It  was  received  by  the  commissioner, 
but  we  think  that  It  sufficiently  appears 
from  Its  own  date  and  the  recitals  and  date 
of  the  notice  which  accompany  the  record 
and  return,  together  with  the  record  and  re- 
turn Itself. 

2.  Notice. 

The  notice  is  criticised  on  sereral  grounds: 
(a)  That  It  did  not  state  that  the  applica- 
tion was  to  lay  out  a  public  highway;  (b) 
that  the  record  and  return  falls  to  show 
that  the  notice  was  posted  In  any  public 
place  in  the  township;  (c)  that  the  record 
and  return  does  not  show  that  proof  of  serv- 
ice was  made,  and  was  before  the  commis- 
sioner at  the  time  his  action  was  taken. 
Plaintiff's  affidavit  shows  and  It  Is  a  fact, 
shown  by  the  record  and  return,  that  the  ap- 
plication prayed  the  establishment  of  a  "pub- 
lic highway."  Comp.  Laws,  {  4038,  requires 
service  of  notice  of  the  application,  and  we 
are  of  the  opinion  that  the  omission  of  the 
word  "public"  was  not  fatal  in  the  case.  It 
was  personally  served,  and  there  is  no  claim 
that  plaintltC  did  not  know  the  object  of  the 
application.  The  return  to  the  writ  shows 
a  subsequent  talk  with  the  commissioner, 
and  a  refusal  to  attend  the  meeting  by  the 
plaintiff.  The  notice  could  apply  to  no  other 
than  a  public  way,  for  highways  are  public 
ways  as  contradistinguished  from  private 
ways.  It  affirmatively  appears  that  it  was 
unnecessary  to  post  any  copies  of  this  notice. 
See  Comp.  Laws,  §  4038.  The  record  and  re- 
turn contains  a  copy  of  the  notice  dated 
February  4th,  and  proof  by  the  affidavit  of 
tlie  commissioner,  sworn  to  on  February 
lOth,  that  it  was  properly  served  on  Febru- 
ary 4tti.  It  does  not  state  these  facts,  but 
by  making  them  a  part  of  the  record  and  re- 
turn, the  same  sufficiently  appears. 

a  Meeting. 

It  Is  contended  that  the  record  and  return 
does  not  show  that  the  commissioner  held  a 
meeting  at  the  time  and  place  appointed.  Of 
this  it  is  enough  to  say  that  plaintiff's  own 
affidavit  states  that  he  did,  and  the  record 
and  return  states  tliat  he  did.     It  It  were 


true  that  this  omitted  to  so  state,  the  affida- 
vit shows  It,  and  It  is  apparent  that  there  Is 
no  injury  to  the  plaintiff  through  want  of  an 
opportunity  to  be  heard. 

4.  Proceedings  at  Meeting. 

The  record  and  return  does  not  state  what 
took  place  at  the  meeting  prior  to  the  com- 
missioner's proceeding  to  view  the  premises. 
The  affidavit  for  certiorari  and  the  return  to 
the  writ  do,  however;  the  former  stating 
that  the  "commissioner  and  others  were 
there  assembled,"  and  that  "there  was  talk 
and  discussion  between  thein  regarding  the 
laying  out  of  the  proposed  highway,"  after 
which  "they  dispersed."  We  are  not  cited 
to  a  statute  requiring  more,  or  prorlding 
that  any  minutes  of  what  was  said,  or  re- 
port of  the  discussion,  should  be  made.  Nei- 
ther was  there  any  way  of  compelling  those 
assembled  to  accompany  the  commissioner 
to  view  the  premises;  and,  as  the  plaintiff 
refused  to  attend,  and  Holt  was  willing  to 
have  the  highway  established,  and  land  of 
no  other  person  was  required,  there  was  no 
Inducement  for  others  to  go.  It  does  not 
appear  that  any  adjournment  was  asked  or 
necessary.  The  record  and  return  Indicates 
that  the  commissioner  immediately  proceed- 
ed to  view  the  premises,  and  that  on  or  be- 
fore the  next  day  he  determined  that  the 
said  highway  (1.  e.,  a  public  highway,  &» 
set  up  In  the  application)  was  necessary,  and 
that  It  be  thereby  laid  out.  The  same  ap- 
pears affirmatively  from  the  return  to  the 
writ 

Record  and  Return. 

The  commissioner  filed  his  record  and  r^- 
tum  on  the  18th  day  of  February,  and  It  is 
dated  on  that  day.  The  law  required  that 
It  be  filed  within  five  days.  (Counsel  argue, 
from  the  fact  that  it  bears  date  February 
18th,  that  we  must  assume  that  the  deter- 
mination was  not  made  on  the  17th.  We 
are  of  the  opinion  that  such  Is  not  a  neces- 
sary Inference,  and,  moreover,  that  the  pro- 
ceedings were  not  rendered  Invalid,  If  he 
did  not  make  such  determination  on  the 
17th,  under  the  facts  appearing  In  this  rec- 
ord. The  return  to  the  writ  shows  that  he 
did.  After  meeting  at  the  regular  time  and 
place,  and  discussing  the  subject  with  all 
who  cared  to  be  heard,  the  commissioner 
proceeded  to  view  the  premises,  and  deter- 
mined the  necessity,  the  land  required,  ap- 
praised the  same,  fixing  the  damages,  and 
established  the  highway,  filing  his  report  the 
next  day.  He  did  not  state  expressly  In  bis 
minutes  that  he  "ascertained  and  determin- 
ed" these  things,  but  It  sufficiently  appears 
that  he  did  so.  It  is  said  that  the  map  and 
survey  were  not  signed  by  the  commissioner. 
The  signature  to  the  record  and  return  was 
all  that  was  required;  and,  although  the 
report  does  not  mention  these  documents, 
they  were  a  part  of  the  return,  and  were  fil- 
ed and   recorded   with   the  same,   and  all 


Digitized  by  VjOOQ  l€ 


Mich.) 


REIMIXK  V.  STRABBING. 


183 


shonld  be  treated  as  signed  by  the  commls- 
sioner,  within  the  meaning  of  the  statute. 
Comp.  lAwa,  i  4041.  See  Page  t.  Boehmer, 
154  Mich.  693,  118  N.  W.  002.  It  la  claimed 
that  the  record  and  return  falls  to  show  that 
the  damages  were  assessed  at  the  value  of 
the  land  taken  for  farming  purposes;  that 
ft  does  not  show  that  the  highway  was  not 
parallel  within  a  half  mile  by  a  pre-ex- 
isting highway;  that  It  contains  a  defective 
description.  In  that  the  word  "feet"  Is  omit- 
ted after  the  figures  "300";  and  that  it  af- 
firmatlTely  shows  the  award  of  excessive 
damages.  The  return  of  the  commissioner 
(o  the  writ  of  certiorari  shows  that  the  dam- 
.iges  were  based  upon  the  farm  value  of  the 
land  taken,  that  the  road  was  not  laid  out  par- 
allel to  another  highway  within  a  half  mile, 
and  that  the  damages  awarded  were  $101, 
but  that  by  arrangement  $1  was  receipted 
for  by  Holt,  who  claimed  no  damage,  and 
that  the  snm  appropriated  was  only  $100. 
This  return  must  be  taken  as  true.  The 
provision  of  section  4041  as  to  value  was 
changed  by  Act  No.  142,  p.  191,  Pub.  Acts 
1901,  and  there  Is  therefore  no  importance 
to  the  question  of  a  parallel  road.  There 
was  an  error  In  the  description  In  one  part 
of  the  record  and  return,  but  It  is  clearly 
Herlcal,  and  is  corrected  by  the  survey  and 
other  papers. 

We  find  no  substantial  error  In  the  pro- 
ceedings, and  the  proceedings  of  the  com- 
missioner are  afiBrmed  with  costs. 


UEIMIXK  V.  STRABBING,  Township  Clerk. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

1.  Statutes  (|  158*)— Repkai  by  Implica- 
tion. 

Repeals  by  implication  are  not  favored. 
[E^.    Note.— For    other    cases,    see    Statutes, 
Cent.  Dig.  J  228;    Dec.  Dig.  {  158.*] 

2.  Brtdoes  (8  5*)— Highways  (|   122*)— Rk- 
PAIBS— Attthobity  or  Officers. 

Pnh.  Acts  1907,  p.  41,  No.  37,  |  3,  amend- 
ing Comp.  Laws  1807,  i  4129,  provides  that  in 
repairing  or  construction  of  bridges  or  roads 
the  highway  commissioner  on  the  approval  of 
the  township  board  may  make  repairs  or  cause 
them  to  be  made  and  may  buy  the  necessary 
material,  and  that,  in  case  of  a  greater  expendi- 
ture than  $500,  on  approval  of  the  board  bids 
shall  be  advertised  for,  etc.  Pub.  Acts  1907.  p. 
125.  No.  108,  provides  that  the  highways  shall 
be  laid  out  and  improved  by  two  money  taxes, 
one  to  be  known  as  the  "road  repair  tax"  and 
one  as  the  "highway  improvement  tax."  Sec- 
tion 9  provides:  "The  road  repair  tax  shall  be 
expended  for  labor,  and  necessary  expenses,  un- 
der the  snpervision  of  the  highway  commission- 
er, on  the  highways  and  bridges  which  will  di- 
rectly benefit  the  property  taxed,  unless  other- 
wise directed  by  the  township  board."  And  sec- 
tion 10  enacts  that:  "The  highway  Improvement 
fand  sliall  be  expended  by  the  township  highway 
commissioner  under  the  direction  of  the  town- 
ship board  in  laying  out,  building  and  perma- 
nently improving  or  repairing  highways  and 
bridges  and  in  the  employment  of  labor,  pur- 
chasing of  material,"  etc.  The  final  section  of 
the   act   expressly   repeals   Comp.    Laws   1897, 


a  4072-4103,  relating  to  highways.  Held,  that 
Act  No.  108  repealM  by  impUcation  Act  No. 
37.  S  3. 

[Ei.  Note.— For  other  cases,  see  Bridges,  Dec. 
Dig.  J  6  ;*   Highways,  Dec.  Dig.  |  122.*] 

3.  Cebtiobabi  (I  71*)— Costs. 

On  certiorari  to  determine  whether  a  stat- 
ute relative  to  the  construction,  etc,  of  bridges 
and  highways  had  been  repealed  by  implication, 
the  question  being  one  of  public  interest,  no 
costs  would  be  allowed  either  party. 

[E!d.  Note.— For  other  cases,  see  Certiorari, 
Dec.  Dig.  {  71.*] 

Certiorari  to  Circuit  Court,  Allegan  Coun- 
ty; Philip  Padgham,  Judge. 

Certiorari  by  Ed.  Reimink  to  review  the 
action  of  the  Allegan  Circuit  Judge  In  com- 
pelling Henry  Strabbing,  as  clerk  of  the 
township  of  Filmore,  to  issue  a  certain  order 
to  relator.  Order  vacated,  and  petition  dls- 
mlaged. 

Argaed  before  BLAIK,  C.  J.,  and  GRANT. 
MONTGOMERY,  MOORE,  and  McALVAY. 
JJ. 

Smedley  &  Corwln,  for  api)ellant  Wllkt.-i 
&  Stone,  for  appellee. 

MOORE,  J.  The  relator,  upon  the  order 
of  the  highway  commissioner,  furnished  ma- 
terial for  bridge  purposes  to  the  amount  of 
more  than  $300.  The  township  board  and 
the  voters  of  tbe  township  authorized  the 
expenditure  for  bridge  purposes  of  more  than 
the  sum  In  question.  A  dispute  has  arisen 
as  to  whether  the  expenditure  when  authoriz- 
ed may  be  made  by  the  highway  commission- 
er, or  whether  it  must  be  made  by  the  town- 
ship board. 

Counsel  are  agreed  that  the  only  questluu 
before  this  court  is  whether  section  4169, 
Comp.  Laws,  as  amended  by  Act  No.  87,  p. 
41,  of  the  Public  Acts  of  1907,  has  been  re- 
pealed by  Act  No.  108,  p.  125,  of  the  same 
session.  That  part  of  Act  No.  37,  supra, 
which  Is  material  here,  reads  as  follows: 
"Sec.  3.  In  ail  cases  Involving  an  expendi- 
ture of  an  amount  over  fifty  dollars  and  not 
exceeding  five  hundred  dollars,  in  the  repair- 
ing or  construction  of  roads  or  bridges.  In 
any  township  of  this  state,  the  commissioner 
shall  submit  the  proposed  expenditure  to  ttie 
township  board,  and  upon  the  approval 
of  the  said  board,  the  commissioner  may 
make  such  repairs  or  cause  them  to  be  made ; 
may  do  the  construction  work  or  cause  it  to 
be  done;  may  buy  the  necessary  material 
and  hire  the  necessary  help,  but  If  the  pro- 
posed expenditure  is  of  an  amount  greatfer 
then  five  hundred  dollars,  tbe  commissioner 
shall  first  submit  the  same  to  the  township 
board,  and  upon  approval  of  the  said  board 
the  commissioner  shall  advertise  for  sealed 
proposals  for  the  doing  of  such  work  and  the 
making  of  such  repairs,  and  together  with 
the  township  clerk,  subject  to  approval  of 
the  township  board,  stiaU  contract  with  tbe 
lowest  bidder  giving  good  and  sufficient  se- 


•ror  other  esse*  u«  same  topic  and  Mctlon  NUMBER  la  Dec.  *  Am.  Digs.  1907  to  date,  li  Report«r  ladexM 


Digitized  by 


Google 


184 


122  NORTEIWESTEBN  REPORTBB. 


(Micli. 


enrity  tor  the  performance  of  the  work/'etc. 

This  act  was  approved  April  3, 1907. 

Section  1  of  Act  No.  108,  supra,  provides 
that  the  highways  In  every  organized  town- 
ship shall  be  laid  ont,  improved,  and  main- 
tained by  two  money  taxes ;  one  tax  shall 
be  known  as  the  "road  repair  tax,"  and  the 
other  tax  shall  be  known  as  the  "highway 
Improvement  tax." 

Section  9  reads  in  part  as  follows:  "The 
road  repair  tax  shall  be  expended  for  labor, 
material  and  other  necessary  expenses,  un- 
der the  supervision  and  by  the  direction  of 
the  townslUp  highway  commissioner,  on  the 
bighwas^s  and  bridges  which  will  directly 
benefit  the  property  taxed,  not  exceeding  one 
hundred  dollars  on  any  one  mile  of  highway, 
unless  otherwise  directed  by  the  townsliip 
board." 

Section  10  reads  as  follows:  "The  high- 
.way  Improvement  fund  shall  be  expended  by 
the  township  highway  commissioner  under 
the  direction  of  the  township  board  in  lay- 
ing out,  building  and  permanently  improving 
or  repairing  highways  and  bridges  and  in 
the  employment  of  labor,  purchasing  of  ma- 
terial, tools  or  machinery  to  be  used  there- 
for." 

The  final  section  of  the  act  repealed  sec- 
tions 4072-4103,  inclusive,  Comp.  Laws,  and 
all  acts  and  parts  of  acts  contravening  the 
provisions  of  this  act. 

Act  No.  108  was  approved  May  22,  1907. 

It  is  the  contention  of  the  relator  that  as 
section  3  of  Act  37  was  not  repealed  in  ex- 
press terms,  and  is  not  inconsistent  with  the 
provisions  of  Act  No.  108,  the  provisions  of 
Act  No.  37  still  stand. 

Repeals  by  implication  are  not  favored. 
See  Hoffman  v.  Loud  &  Sons  Lumber  Co., 
138  Mich.  5,  100  N.  W.  1010,  104  N.  W.  424, 
and  cases  cited. 

Are  the  provisions  of  the  two  acts  incon- 
sistent with  each  other  so  that  the  later  act 
repeals  the  former  one?  It  is  apparent  from 
the  provisions  already  quoted  from  the  later 
act  that,  after  it  became  the  law,  all  taxes 
for  highway  purposes  came  under  one  of 
two  heads,  1.  e.,  one  tax,  known  as  the  "road 
repair  tax,"  and  the  other  tax,  known  as  the 
"highway  improvement  tax."  Explicit  pro- 
visions are  made  as  to  how  each  of  these 
funds  may  be  expended.  These  provisions 
are  different  from  what  they  were  before  the 
enactment  of  the  later  statute,  and  are  in- 
consistent therewith.  See  Wright  v.  Com- 
missioners, 82  Ind.  337;  Shannon  v.  People, 
5  Mich.  71 ;  Felge  v.  R.  R.  Company,  02  Mich. 
1,  28  N.  W.  685 ;  Graham  v.  Muskegon  Coun- 
ty Clerk,  116  Mich.  571,  74  N.  W.  729 ;  Attor- 
ney General  v.  Commissioner,  117  Mich.  477, 
76  N.  W.  69.  See,  also,  Mackey  v.  TownsUp 
of  Columbus,  71  Mich.  227,  38  N.  W.  899; 
Reus  r.  Grand  Baplda,  73  Mich.  237,  41  N. 
W.  263. 

It  follows  that  the  order  of  the  circuit 


judge  compelling  the  issuing  of  the  order 
should  be  vacated  and  relator's  petition  dis- 
missed. As  the  questioD  Is  one  of  public 
interest,  no  costs  will  be  allowed  to  either 
party. 


BUCKHOUT  V.  WITWEB  et  al. 
(Supreme  Court  of  Michigan.    July  6,  1909.) 

1.  CONTBACTS    (I    117*)— LEOAXITT   0»    OBJECT 

— Restbaikt  of  Tbade— Comkoit-Law  Rule. 
A  contract  for  the  sale  of  a  business  includ- 
ine  its  good  will,  with  an  agreement  of  the 
Beller  not  to  re-engage  in  that  business  in  the 
same  city  for  five  years,  would  be  valid  at  com- 
mon law. 

[Ed.  Note. — For  other  cases,  see  Contracts, 
Cen^  Dig.  H  654,  555,  558,  559Vi ;  Dec.  Dig.  I 

2.  Monopolies  ({  12*)— LKGALixr  op  Object 
— Restbaint  of  Tbadb— Cohstbuciion  of 
Statute — "Tbansfebee  of  a  BnsiNESS." 

Pub.  Acts  1905,  p.  507,  No.  329,  {  1,  pro- 
vides that  all  agreements  by  which  a  person, 
partnership,  or  corporation  promises  not  to  en- 
gage In  any  business  shall  be  void.  Section  6 
provides  that  the  act  shall  not  apply  to  any  con- 
tract mentioned  therein  nor  in  restraint  of 
trade,  where  the  only  object  of  the  restraint  im- 
posed is  to  protect  the  vendee  or  transferee  of 
a  business,  etc  Held,  that  a  stockholder  in  a 
corporation  was  an  owner  of  the  corporate  busi- 
ness and  good  will  in  proportion  to  his  shares, 
and  a  person  to  whom  he  sold  his  shares  and 
good  will  in  the  business  was  a  transferee  of  a 
business  within  section  6,  so  that  an  agreement 
of  the  seller  to  refrain  from  re-entering  the 
same  business  for  five  years'  time  in  the  same 
city  would  not  be  prohibited. 

[Ed.  Note.— For  other  cases,  see  Monopolies, 
Dec  Dig.  i  12.*} 

3.  Specific  Pebfobv ance  (|  58*)— Effeoi  of 
Stipulation  fob  Penalty. 

A  contract  for  sale  of  a  business  providing 
that  the  seller  would  not  re-engage  in  the  busi- 
ness in  the  same  city  for  five  years,  and  if  he 
failed  to  tierform  his  contract  he  should  forfeit 
to  the  buyer  $1,000  per  annum  until  the  end  of 
the  five  years,  provided  for  a  i>enalty,  and  did 
not  preclude  the  buyer  from  enforcing  specific 
performance  of  the  contract. 

[Ed.  Note.— For  other  cases,  see  Specific  Per- 
formance, Cent.  Dig.  8}  179,  180;  Dec  Dig.  { 
58.*] 

Appeal  from  Circuit  Court,  Kalamazoo 
County,  in  Chancery;  Frank  E.  Enappen, 
Judge. 

Bill  by  Oscar  K.  Buckhout  against  Benja- 
min F.  Wltwer  and  another.  A  demurrer  to 
the  bill  was  sustained,  and  complainant  ap- 
peals.   Reversed  and  remanded. 

Argued  before  BLAIB,  G.  J.,  and  MONT- 
GOMERY, HOOKER,  McALVAX,  and 
BROOKE,  JJ. 

Osbom  &  Mills,  for  appellant  Marvin  J. 
Schaberg  (L.  T.  Flansburg,  of  counsel),  for 
appellees. 

HOOKER,  J.  The  Wltwer  Baking  Com- 
pany is  a  corporation  doing  business  in  Kala- 
mazoo. It  was  organized  July  18,  1906,  to 
take  over  the  business  of  Benjamin  F.  Wlt- 
wer, of  tiiat  place,  who  bad  eetabllshed  a 


•Far  other  cum  aa*  aama  topio  and  aectlon  NUMBER  la  Dec.  *  Am.  Dlsa.  1M7  to  dats,  *  Reportar  Indazaa 


Digitized  by  VjOOQ  l€ 


Mich.) 


BUCKHOUT  V.  WITWER. 


185 


Incrattre  baking  bnslness.  Its  capital  stodE 
waa  $100,000  of  which  Benjamin  F.  Wltwer 
subscribed  for  $39,000,  Etta  Wltwer  $1,000, 
Ix>renzo  T.  Bennett  $49,000,  and  Oscar  K. 
Bnckhout,  the  complainant,  $11,000.  The 
good  will  of  said  business  was  pat  in  at  $10,- 
000. 

On  Febrnary  28,  1908,  Roy  Wltwer,  a  son 
of  Benjamin  F.  Wltwer,  acquired  100  shares 
of  the  capital  stock  of  said  company.  On 
March  9,  1908,  complainant  purchased  from 
Benjamin  F.  Wltwer,  who  was  authorized  to 
and  did  act  for  Etta  Wltwer,  and  Roy  Wlt- 
wer, his  wife  and  son,  respectively,  all  of 
the  capital  stock  of  said  company  owned  by 
them  for  an  agreed  price  of  $14,000.  Said 
Benjamin  F.  Wltwer,  with  the  knowledge 
and  assent  and  upon  the  behalf  of  his  said 
wife  and  son  as  well  as  himself,  executed  the 
following  writing:  "B.  F.  Wltwer,  President, 
O.  K-  Buckbout,  Vice  President,  L.  T.  Ben- 
nett, Sec'y  and  Treas.  Bakers  of  'Buster 
Brown,*  'Mothers'  and  'Butter  Bread.'  The 
Wltwer  Baking  Company,  Wholesale  Bakers. 
Comer  Chnrch  and  Eleanor  Streets,  Kalama- 
zoo, Mich.,  March  9th,  1908.  Telephone  1629. 
B.  F.  Wltwer.  City — Dear  Sir:  I  will  pay 
yon  thlrty-flTe  cents,  85c,  on  the  dollar,  for 
$40,000  stock  In  The  Wltwer  Baking  Co.  in- 
corporated, which  amounts  to  $14,000,  It  be- 
ing understood  that  the  stock  above  referred 
to  shall  be  all  of  the  stock  now  held  in  your 
name,  also  In  the  name  of  Etta  Wltwer,  said 
stock  shall  be  Indorsed  by  those  whose  name 
it  is  now  in  and  delivered  to  me  free  from 
all  encumbrances  within  five  days  from  date. 
In  making  you  this  otCer  and  purchasing 
your  interest  in  this  company,  it  is  subject 
to  the  condition  that  the  good  will  of  your- 
self and  family  follows  the  purchase;  also, 
that  you  will  not  directly  or  indirectly,  in 
any  way,  shape  or  manner  engage  in  the 
baking  business  in  Kalamazoo  for  a  period  of 
five  years.  If  you  do  so  and  do  not  fulfill  on 
your  part  both  in  the  spirit  and  language  of 
this  letter,  you  shall  forfeit  me  one  thousand 
dollars,  $1,000,  per  annum  until  the  end  of 
the  five  years  from  the  time  you  shall  not 
have  acted  in  good  faith  in  performing  the 
terms  of  this  sale.  Tou  shall  resign  your 
position  as  an  oflScer  of  this  company  at  once 
or  upon  the  delivery  of  stock  in  this  com- 
pany above  referred  to.  Tours  truly,  O.  K. 
Bnckhout.     Accepted  by  B.  F.  Wltwer." 

The  bill  in  this  cause  Is  filed  to  specifical- 
ly enforce  said  contract  to  recover  damage 
for  an  alleged  breach,  and  to  restrain  fur- 
ther breaches  of  said  contract  by  BenJ.  F.  and 
Boy  Wltwer,  for  five  years. 

In  addition  to  the  foregoing  facts,  the  bill 
allies  that  before  said  sale  to  the  complain- 
ant tbe  defendants  were  secretly  arranging 
to  enter  into  a  new  business  similar  to  that 
carried  on  by  the  Wltwer  Baking  Company 
In  competition  with  it,  and  with  the  design 
and  intention  of  undermining  it  for  their 
own  benefit  and  profit,  contrary  to  their  con- 


tract, and  that  in  furtherance  of  such  de- 
sign have  entered  upon  such  a  business,  con- 
trary to  their  said  contract,  and  are  now  con- 
ducting it,  to  the  injury  and  serious  damage 
of  complainant  The  defendants  demurred 
to  said  bill,  and,  the  demurrer  having  been 
sustained,  the  complainant  has  appealed. 

Two  important  questions  arise  upon  this 
record: 

First  Was  the  contract  a  violation  of  sec- 
tions 1,  6,  pp.  507,  508,  Act  No.  329,  Pub. 
Acts  1905,  which  provide: 

"Section  1.  All  agreements  and  contracts 
by  which  any  person,  copartnership  or  cor- 
poration promises  or  agrees  not  to  engage  in 
any  avocation,  employment,  pursuit,  trade, 
profession  or  business,  whether  reasonable 
or  unreasonable,  partial  or  general,  limited 
or  unlimited,  are  hereby  declared  to  be 
against  public  policy  and  illegal  and  void." 

"Sec.  6.  This  act  shall  not  apply  to  any 
contract  mentioned  in  this  act  nor  in  re- 
straint of  trade,  where  the  only  object  of 
the  restraint  Imposed  by  the  contract  Is  to 
protect  the  vendee  or  transferee  of  a  trade, 
pursuit  avocation,  profession  or  business,  or 
tbe  good  will  thereof,  sold  and  transferred 
for  a  valuable  consideration  In  good  faith 
and  without  any  fraud,  intent  to  create, 
build  up,  establish  or  maintain  a  monopoly." 

Second.  Does  the  contract  by  its  terms  pro- 
vide for  stipulated  damages  to  the  exclusion 
of  a  right  to  specific  performance?  It  Is 
contended  by  tbe  appellee  that  this  statute 
expressly  forbids  all  contracts  in  restraint 
of  trade,  except  In  favor  of  the  transferee  of 
a  business,  and  that  the  corporation  was  the 
only  transferee  .of  the  business  here,  com- 
plainant being  only  a  purchaser  of  stock, 
hence  that  he  is  not  within  the  terms  of 
the  statute.  We  should  have  no  doubt  of  tbe 
validity  and  binding  effect  of  this  contract  in 
the  absence  of  the  statute  under  the  cases  of 
Hubbard  v.  Miller,  27  Mich.  15,  15  Am.  Rep. 
153;  Beal  v.  Chase,  31  Mich.  490;  Doty  v. 
Martin,  32  Mich.  463 ;  Tlmmerman  v.  Dever, 
52  Mich.  34,  17  N.  W.  230,  50  Am.  Rep.  240; 
Up  River  Ice  Co.  v.  Donler,  114  Mich.  303, 
72  N.  W.  157,  68  Am.  St  Rep.  480 ;  Adama 
V.  Knapp,  121  Fed.  84,  58  C.  O.  A,  1 ;  Davis 
V.  Booth  Co.,  131  Fed,  81,  65  C.  O.  A.  269;^ 
Kronschnabel-Smlth  v.  Kronschnabel,  87 
Minn.  230,  91  N.  W.  892;  Bradford  v.  Furni- 
ture Co..  115  Tenn.  610,  92  S.  W.  1104,  9 
L.  R.  A.  (N.  S.)  979.  All  of  them  appear  to 
turn  upon  the  common-law  rule.  The  present 
case  involves  a  statute,  which  has  changed 
the  common-law  rule,  and  made  invalid  all 
such  contracts,  with  certain  exceptions,  and 
this  case  must  turn  on  the  question  of  its 
being  within  the  exception,  and  as  said  in 
Merchants'  Ad  Sign  Co.  r.  Sterling,  124  Cal. 
429,  67  Pac.  468,  46  L.  B.  A.  142,  71  Am. 
St  Rep.  94:  "It  is  not  a  question  whether 
the  bolder  of  shares  of  a  corporation  should 
be  permitted  to  enhance  their  vendibility, 
by   agreeing  to   abstain   from   carrying   on 


Digitized  by  LjOOQ  l€ 


186 


122  NORTHWESTERN  REPORTER. . 


(MIcb. 


business  similar  to  tbat  of  tlie  corporation, 
*  *  *  bat  it  is  a  question  wbetber  such 
agreement  is  not  by  law  (1.  e.,  statute)  de- 
clared to  be  void."  The  corporation  succeed- 
ed to  all  of  tbe  defendant  BenJ.  Wltwer's 
rights  in  this  business,  after  which  he  had  no 
right  to  the  good  will  except  as  a  stockholder. 
Mis  wife  and  son  never  had  any  except  as 
owners  of  stock.  At  the  time  of  complain- 
ant's purchase  of  stock,  he  was  not  thereby 
technically  made  a  transferee  of  a  trade,  pur- 
suit, avocation,  or  business  or  the  good  will 
thereof,  but  he  was  made  a  transferee  of  the 
!<ame,  so  far  as  a  stockholder  could  have  such 
interest,  for  the  defendants  did  make  a  sale 
of  their  Interest  in  the  corporation  and  the 
good  will  of  themselves  in  the  business,  and 
defendants  promised  to  refrain  from  engag- 
ing in  such  business  upon  a  consideration 
which  was  adequate. 

Technically,  the  sale  to  the  corporation  did 
curry  the  good  will  to  it,  but  the  stockhold- 
ers who  constituted  the  corporation  became 
the  real  owners  of  the  business  and  good 
will  In  proportion  to  their  shares,  for  they 
were  tbe  owners  of  the  artificial  body  which 
they  were  permitted  to  erect.  That  this  may 
have  been  a  qualified  right,  so  far  as  control 
Is  concerned  may  be  admitted,  but  such  as  it 
was  they  attempted  to  sell  it  to  the  complain- 
ant, and  we  are  of  the  opinion  that  it  was 
within  the  exception  of  the  statute,  reason- 
ably construed.  In  this  we  are  aware  that 
we  are  at  variance  with  the  view  taken  by 
tbe  learned  court  of  California,  and  it  is  not 
without  hesitation  that  we  have  felt  con- 
strained to  reach  a  diCCerent  conclusion. 
Counsel  seek  to  distinguish  that  case  from 
the  present,  but  we  think  that  it  cannot  fair- 
ly be  distinguished.  We  cannot  disapprove 
of  the  logic  of  that  opinion.  If  its  premises 
be  admitted,  but  we  think  that  it  may  rea- 
sonably be  said  that  a  stockholder  in  a  cor- 
poration has  such  an  interest  in  its  business 
and  good  will  within  this  statute,  as  to  make 
a  purchaser  of  such  interest  and  good  will 
a  transferee  of  the  same,  which  appears  In- 
consistent with  the  view  taken  In  that  case. 

We  are  of  the  opinion  that  the  provision  in 
the  contract,  "If  you  do  so  and  do  not  ful- 
fill on  your  part  both  In  the  spirit  and  lan- 
guage of  this  letter,  you  shall  forfeit  to  me 
one  thousand  dollars,  |1,000,  per  annum  un- 
til the  end  of  the  five  years  from  the  time 
you  shall  not  have  acted  In  good  faith  in  per- 
forming the  terms  of  this  sale,"  should  be 
construed  to  provide  for  a  penalty,  and  there- 
fore that  it  does  not  preclude  complainant 
from  filing  a  bill  for  specific  performance. 
It  is  within  the  rule  stated  in  Dally  v.  Litch- 
field, 10  Mich.  29,  followed  In  Powell  v.  Dwy- 
er,  149  Mich.  145,  112  N.  W.  409,  11  L.  R.  A. 
(N.   S.)  978. 

The  other  points  discussed  by  counsel  do 
not   require   elaboration.      It    is   enough    to 


say  that  we  cannot  sastaln  them  upon  this 
record. 

The  order  Is  reversed,  with  costs,  and  tbe 
cause  is  remanded  for  further  proceedings. 


SAGINAW   COUNTY    SAVINGS   BANK    t. 
DUFFIELD. 

(Supreme  Court  of  Michigan.     July  6,  1909.) 

1.  ABAIBKKNT   ARD   RKVIVAL   (t    68*)— DKA.TH 

or  Pabtt — CBEDrroBs'  Prockedings. 

Judgment  was  rendered  against  testator 
before  his  death,  and  execution  returned  unsat- 
isfied, and  a  creditors'  bill  was  filed  for  a  dis- 
covery of  property  to  apply  to  the  satisfaction 
of  the  judgment,  and  for  an  injunction  and  re- 
ceiver, and  an  injunction  containing  the  usual 
prohibitions  was  issued  and  personally  served 
upon  testator,  as  were  copies  of  tbe  complaint 
and  notice  of  the  application  for  receiver,  and 
a  receiver  was  appointed  for  all  of  testator's 
property,  and  he  was  directed  to  appear  for  ex- 
amination and  discovery,  but  the  hearing  was 
adjourned  because  of  testator's  Illness,  and 
never  took  place  because  of  his  death.  Held 
that  either  the  injunction,  or  the  appointment 
of  the  receiver,  before  testator's  deatih  created 
a  lien  on  his  estate,  so  that  tbe  suit  did  not 
abate  upon  his  deatli. 

[Ed.  Note. — For  other  cases,  see  Abatement 
and  Revival,  Cent.  Dig.  i  346;  Dec.  Dig.  g 
68.*] 

2.  Cbeditoss'  Suit  (S  36*)— Lien— Priobitt. 

The  lien  of  judgment  creditors  acquired 
in  a  creditors'  snit  was  superior  to  tbe  rights 
of  the  personal  representative  of  tbe  deceased 
defendant,  except  as  to  property  exempted  by 
tbe  statute  authorizing  creditors'  suit. 

[Ed.  Note.— For  other  cases,  see  Creditors'. 
Suit,  Cent.  Dig.  §{  14G,  149 ;    Dec  Dig.  f  30.*] 

3.  Receivers  (|  70*)— Possession  or  Prof- 
KRtY— Effect  of  Appointment. 

A  receiver's  title  to  property  and  his  right 
to  possession  relate  back  to  the  date  of  the 
Older  appointing  him. 

[Ed.  Note.— For  other  cases,  see  Receivers. 
Cent.  Dig.  {  120;   Dec.  Dig.  i  70.*] 

4.  Creditors'    Suit   (t   32*)  —  Transfxb   bt 
Debtor— Violation  op  Injunction. 

Where,  in  a  creditors'  suit,  the  debtor  was 
enjoined  from  transferring  his  proi>erty,  and 
a  receiver  was  appointed  to  take  charge  of  it. 
the  debtor  would  be  chargeable  as  for  contempt 
of  court  by  thereafter  transferring  his  property. 
[Ed.  Note. — For  other  cases,  see  Creditors' 
Suit,  Cent.  Dig.  i  131;    Dec.  Dig.  §  32.*] 

5.  Creditors'    Suit   (8    39*)— Proceedings- 
Pleading —  SUFFICIENCT   OF    COMPLAINT- 

Dkscription  OF  Property. 

In  a  creditors'  suit,  brought  under  Comp. 
Laws,  §1  436,  437,  authorizing  the  filing  of 
judgment  creditors'  bill  to  compel  a  discover; 
of  property  belonging  to  defendant  in  execution, 
or  money  due  him,  and  to  prevent  its  transfer, 
etc.,  a  compl.iint,  which  aliened  that  defendant 
had'  an  equitable  interest  in  certain  property, 
describing  it,  and  praying  a  discovery,  etc,  suf- 
ficiently described  the  property,  within  the  stat- 
ute and  chancery  rule  30,  to  permit  a  lien  to  at- 
tach thereto  in  favor  of  the  judgment  creditors. 

[Ed.  Note.— For  other  cases,  see  Creditors' 
Suit,  Cent.  Dig.  {  158;    Dec  Dig.  i  39.*] 

6.  Creditors'   Suit  (t   SI*)— Pboceedings — 
Decree— StTFFiciKNCT. 

Tbe  decree  in  a  judgment  creditors'  ac- 
tion against  the  executor,  by  allowing  the  ex- 
ecutor to  pay  tbe  judgment  out  of  the  asseta 


•For  other  casea  see  aame  topic  and  aectlon  NUMBER  Id  Dec.  ft  Am.  Diga.  1907  to  date,  t  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Midi.) 


SAGINAW  COUNTY  SAVINGS  BANK  r.  DUFFIELD. 


187 


of  the  estate,  or,  in  the  alternative,  to  deliver 
"ssets-  to  that  amount  to  the  receiver  appointed 
in  the  action,  was  not  prejudicial  to  the  ex- 
rvutor  ;    the  creditors  having  a  prior  lien  on  the 

rstate. 

[E^d.    Note.— For  other  cases,   see   Creditors' 
Suit,  Cent  Dig.  I  191;   DecWg.  {  81.*] 

T.  Crkditobb'  Strrr  (t  36*)— Lien— Waivbb. 
^Vhere  judgment  creditors  bad  perfected  a 
lien  against  testator's  estate  before  his  death 
by  the  appointment  of  a  receiver  for  his  estate 
and  serving  an  injunction  upon  him,  they  did 
not  release  their  rights  by  filing  their  claim 
with  the  commissioners  on  claims  after  testa- 
tor's death,  giving  a  complete  history  of  the 
proceedings  by  which  they  had  perfected  their 
iien. 

[E:d.  Note.— For  other  cases,  see  Creditors' 
Suit.  Cent  Dig.  (  1S3;  Dec.  Dig.  {  36.*] 

AiH[>eal  from  Circnit  Court,  Wayne  Coun- 
ty, In  Chancery ;  Morse  Rohnert,  Judge. 

Snlt  by  the  Saginaw  County  Savings  Bank 
against  Henry  M.  Duffleld.  From  a  decree 
for  complainant,  defendant  appeals.  Affirm- 
ed. 

Argued  before  BLAIR,  0.  J.,  and  GRANT, 
MONTGOMERY,  McALVAY,  and  BROOKE, 
JJ. 

H.  M.  &  D.  B.  Duffleld,  for  appellant  L. 
T.  Durand  (De  Forest  Paine,  of  counsel),  for 
appellee. 

McALVAY,  J.  Complainant  was  a  Judg- 
ment creditor  of  Thomas  Pitts  and  Frank  W. 
Wheeler  to  the  amount  of  $4,004.06  damagjes 
and  costs  of  suit  taxed  at  $32.20  upon  a  Judg- 
ment rendered  in  the  Wayne  circuit  court 
in  its  favor  January  6,  1906.  An  execution 
duly  Issued  for  the  collection  of  this  Judg- 
ment, was  returned  unsatisfied.  On  or  about 
July  10,  190G,  the  Judgment  creditor's  bill  in 
this  cause  was  filed  against  both  defendants, 
asking  for  a  sworn  answer  from  each,  and  for 
discovery  of  property  to  apply  to  the  satis- 
faction of  the  Judgment,  and  praying  for  an 
injunction  and  a  receiver.  Subpoena  and  in- 
junction were  issued  and  personally  served 
upon  both  defendants.  On  November  20, 
1006,  defendant  Pitts  paid  $2,000,  which  was 
credited.  The  balance  upon  the  Judgment 
remains  unpaid.  On  April  25,  1907,  the  bill 
was  taken  as  confessed  by  each  of  the  de- 
fendants. Copies  of  the  bill  of  complaint 
and  notice  of  the  application  to  appoint  a 
receiver  were  afterwards  served  on  defend- 
ants, Pitts  and  Wheeler,  and  upon  a  hear- 
ing Charles  E.  Hilton  was  duly  and  regular- 
ly appointed  receiver  of  all  the  proiierty  of 
both  Pitts  and  Wheeler.  He  qualified  by 
giving  the  required  l)ond,  and  entered  upon 
the  duties  of  bis  office.  A  summons  was  is- 
sued by  the  circuit  court  commissioner,  di- 
recting each  of  these  defendants  to  appear 
to  be  examined  and  make  discovery,  as  was 
provided  in  the  order  appointing  a  receiver. 
It  was  served  on  defendant  Pitts,  who  was 
in  poor  health,  and  who  through  his  attorney 
.-ippeared  and  obtained  adjournments  of  the 
hearing  from  time  to  time  until  in  July,  1907, 


when  he  was  compelled  to  leave  the  state 
on  account  of  his  health.  He  died  absent 
from  the  state  October  28,  1007.  He  left  a 
will,  which  appointed  defendant  Duffleld  his 
executor.  The  cause  was  revived,  and  pro- 
ceeded against  defendant  Wlieeler  and  the 
executor  of  Pitts.  Complainant  filed  with 
the  commissioners  on  claims  of  the  Pitts  es- 
tate, its  claim  setting  forth  its  history  and 
the  proceedings  had  in  this  cause,  claiming 
that  by  reason  thereof  it  had  a  lien  upon  the 
assets  of  said  estate  prior  to  other  creditors, 
and  that  its  claim  should  be  allowed  as  a 
preferred  claim.  Defendant  Duffleld  filed  a 
plea  in  abatement  to  the  bill  of  complaint 
The  stipulation  allowing  the  amended  plea 
provided  that  upon  filing  the  same  the  cause 
might  be  set  for  argument,  "and,  the  facts 
stated  in  the  bill  and  plea  being  stipulated 
hereby,  the  court  may  make  a  final  decree  in 
the  cause,  and  determine  and  declare  wheth- 
er or  not  the  complainant  has  a  prior  and 
paramount  lien  on  the  assets  of  the  estate  of 
Thomas  Pitts,  deceased,  by  reason  of  the  pro- 
ceedings had  and  taken  on  its  behalf  In  this 
cause."  Under  this  stipulation  a  final  hear- 
ing was  had,  and  a  decree  granted  sustaining 
the  contention  of  complainant,  decreeing  and 
establishing  that  by  the  proceedings  taken 
complainant  acquired  a  good  and  valid  lien 
upon  all  the  property  of  every  nature  belong- 
ing to  the  defendants,  Pitts  and  Wheeler,  to 
secure  the  payment  of  the  Judgment  indebt- 
edness to  said  complainant,  including  all 
costs,  and  the  receiver's  costs  herein,  which 
lien  continues  a  prior  lien  thereon  as  against 
the  general  creditors  of  the  estate  of  defend- 
ant Pitts,  and  decreed  and  established  (mid 
lien,  and  ordered  that  the  same  be  certified 
to  the  probate  court  as  a  Judicially  establish- 
ed and  allowed  claim  against  the  estate  of 
defendant  Pitts,  and  that  an  execution  might 
issue  against  the  property  of  defendant 
Wheeler.  It  was  further  decreed  that  de- 
fendant DuOield  as  executor  discharge  such 
Hen  out  of  the  assets  of  the  estate  of  defend- 
ant Pitts,  or  that  he  deliver  to  the  receiver 
the  assets  of  said  estate,  now  or  hereafter 
in  his  hands,  sufficient  to  satisfy  the  amount 
of  this  lien,  and  further  authorized  the  re- 
ceiver to  institute  all  necessary  proceedings 
to  insure  the  recovery  of  any  assets  of  said 
estate  to  satisfy  the  same,  and  ordered  a 
copy  of  said  decree  to  be  filed  In  said  estate 
in  the  probate  court.  From  this  decree  the 
executor  has  appealed. 

The  questions  raised  by  him  before  this 
court  are:  "First  Had  the  complainant  es- 
tablished a  lien  at  the  time  of  the  death  of 
Pitts  on  all  his  property  of  every  name  and 
nature,  or  did  the  cause  abate  as  to  the  exec- 
utor as  the  representative  of  his  other  credit- 
ors? Second.  In  the  case  the  court  finds 
such  a  Hen  to  have  been  established,  can 
the  receiver  take  aU  the  property  of  the  es- 
tate out  of  the  hands  of  the  executor,  and  out 


•For  other  eaa««  see  same  topic  and  sootloii  NUMBER  In  Dee.  *  Am.  Diss.  1907  to  dato,  *  Reportor  Indexes 


Digitized  by  VjOOQ  l€ 


188 


122  NORTHWESTERN  REPORTER. 


(Mich. 


of  the  control  and  Jnrlfldlction  of  the  protwte 
court,  and  Into  his  possession,  and  collect  the 
complainant's  debt  therefrom?"  Defendant 
executor  urges  that  no  lien  waa  established 
at  the  time  of  the  death  of  defendant  Pitts 
upon  his  property  by  the  proceedings  relied 
upon,  and  contends  that  the  rule  bad  been 
settled  by  this  court  to  that  effect  In  the  fol- 
lowing cases:  Jones  t.  Smith,  Walk.  Ch. 
(Mich.)  115 ;  German  Am.  Seminary  t.  Saenger, 
66  Mich.  249,  33  N.  W.  801 ;  Belth  ▼.  Porter, 
119  Mich.  365,  78  N.  W.  336,  75  Am.  St  Rep. 
402.  It  must  be  conceded  that.  If  the  case 
at  bar  cannot  be  distinguished  from  the  cases 
cited,  complainant  has  no  lien  upon  any  of 
the  assets  of  this  estate,  and  the  decree  in 
his  favor  must  be  reversed  and  the  bill  dis- 
missed. The  proceedings  in  this  case  had 
proceeded  upon  personal  service,  duly  had 
upon  both  defendants,  of  the  subpoena  and  In- 
junction. The  bill  had  been  taken  as  con- 
fessed by  both.  The  receiver  was  appointed 
after  personal  service  of  the  notice  of  the 
application  and  of  copies  of  the  bill  of  com- 
plaint, and  Immediately  after  such  appoint- 
ment the  receiver  qualified  and  entered  upon 
the  duties  of  his  office.  The  summons  to  ap- 
pear for  examination  and  disclosure  was 
duly  served  on  defendant  Pitts,  and  by  Te- 
quest  of  his  attorney,  on  account  of  his  sick- 
ness, adjournments  were  had.  He  never  re- 
covered, and  no  disclosure  was  made. 

The  case  of  Jones  v.  Smith,  supra,  was  a 
petition  to  revive  a  Judgment  creditors'  suit 
against  the  personal  representatives  of  a 
deceased  debtor,  and  It  was  held  that  the' 
filing  of  a  Judgment  creditor's  bill,  without 
answer  or  the  appointment  of  a  receiver, 
creates  no  lien  upon  the  debtor's  property, 
and  the  case  may  not  be  revived  against  the 
personal  representative.  The  court  held  that 
this  was  so  because  "the  suit  had  not  pro- 
gressed so  far  as  to  create  a  lien."  The 
court  said:  "The  statute  does  not  make  the 
filing  of  the  bill  a  lien  on  the  property  of 
the  debtor.  It  authorizes  the  court  to  de- 
cree a  satisfaction  of  the  amount  remaining 
due  on  the  Judgment  out  of  any  personal 
property,  money,  or  thing  in  action  belong- 
ing to  the  debtor,  and  arms  the  court  with 
power  to  compel  a  discovery  of  the  debtor's 
property,  and  to  prevent  his  transferring  it." 
In  German  Am.  Seminary  v.  Saenger,  supra, 
the  case  of  Jones  v.  Smith  was  cited  and 
approved.  The  question  decided  was  wheth- 
er a  lien  had  attached  in  the  case  of  a  Judg- 
ment creditor's  bill  where  no  Injunction  or 
receiver  had  been  prayed  for  or  granted, 
and  whether  the  action  survived.  The  court 
said:  "The  usual  practice  in  suits  by  Judg- 
ment creditors  Is  to  obtain  in  due  season, 
where  the  facts  warrant  it,  the  appointment 
of  a  receiver,  who  is  to  collect  and  apply 
the  assets.  The  statute  does  not,  and  the 
rules  do  not,  declare  any  Hen  to  be  created 
by  merely  filing  a  creditor's  bill.  Until  the 
debtor  is  enjoined  from  dealing  with  his 
property  there  la  nothing  tn  the  law  to  pre- 


vent any  honest  disposition  of  it,  and  until  a 
receiver  la  appointed,  there  is  nothing  which 
will  act  upon  the  property  Itself.  Except 
for  the  statute,  a  Judgment  creditor's  bill  is 
like  any  other  suit,  a  mere  personal  lltlga> 
tion.  Until  the  assets  are  arrested  and  held 
In  some  way,  the  death  of  the  defendant 
leaves  them  subject  to  administration."  In 
Belth  y.  Porter,  supra,  the  question  as  to  the 
abatement  of  a  Judgment  suit  upon  the  death 
of  the  debtor  was  again  before  the  court, 
and  it  was  said,  relative  to  the  two  cases 
Just  discussed:  "If  we  are  to  construe  thos» 
cases  as  authority  for  the  broad  doctrine 
that  all  proceedings  upon  a  creditor's  bill 
abate  upon  the  death  of  the  debtor,  except 
when  execution  has  been  levied,  or  the  prop- 
erty taken  In  charge  by  the  court,  they  are 
conclusive  In  this  case,  and  only  by  over- 
ruling those  cases  can  the  bill  be  sustained." 
In  approving  these  cases  the  court  declared 
that  they  established  the  doctrine  in  thi» 
state.  These  cases  go  to  this  extent,  and 
no  further:  "That  all  proceedings  up<m  a 
creditor's  bill  abate  npon  the  death  of  the 
debtor,  except  when  execution  has  been  ler- 
led,  or  the  property  taken  in  charge  by  the 
court"  In  all  of  them  the  intimation  by  the 
court  is  strong  that  the  issuing  and  service 
of  an  injunction,  or  the  regular  appointment 
of  a  receiver,  would  create  a  lien  upon  the 
assets  of  the  decedent  and  the  suit  would 
survive  his  death.  These  cases  have  been 
considered  somewhat  at  length.  In  order  that 
the  distinction  between  them  and  the  case 
at  bar  may  oe  apparent  In  this  case  the 
proceedings  held  by  the  court  to  be  neces- 
sary to  create  a  lien  upon  assets  and  to 
prevent  the  abatement  of  the  suit  were  had. 
An  Injunction  was  prayed  for,  granted.  Is- 
sued, and  personally  served  upon  defendant 
Pitts.  The  bill  also  prayed  for  a  receiver, 
who  was  appointed  and  qualified  during 
Pitts'  lifetime,  and  of  which  he  had  notice, 
as  well  as  notice  to  appear  for  examination 
and  disclosure  of  assets.  Inferentially  the 
cases  relied  upon  by  the  executor  are  author- 
ity for  holding  that  in  this  case  a  Hen  had 
been  created,  and  the  suit  did  not  abate. 

By  the  Injtmction  defendants  were  jfVh 
hibited  and  restrained  from  interference 
with,  or  making  disposition  of,  any  and  al) 
property  whatever.  The  order  appointing 
the  receiver  established  a  receivership  over 
the  entire  effects,  clothed  him  with  the  usual 
powers  of  a  receiver,  authorized  him  to  take 
immediate  possession  of  such  effects,  and 
commanded  each  of  the  defendants  to  de- 
liver over  to  the  receiver  all  of  such  prop- 
erty, interests,  and  effects.  By  either  or 
both  of  these  proceedings  the  assets  of  the 
defendants  were  impounded  and  held  by 
the  court.  Authorities  need  not  be  cited 
to  the  proposition  that  any  interference  with, 
or  transfer  of,  the  defendants'  assets  hy 
them,  or  either  of  them,  would  be  punish- 
able as  for  a  contempt  of  court    It  is  the 


Digitized  by  VjOOQ  l€ 


Micb.) 


THATEE  LUMBER  CO.  v.  CITY  OP  MUSKSaON. 


189 


law  that  the  title  of  the  receiver  and  bis 
right  to  possession  vest  by  relation  bade  to 
the  date  of  the  M'der  appointing  him.  "It 
is  sufficient  that  the  court  has  assumed  ju- 
risdiction over  the  property  In  controversy 
by  appointing  a  receiver,  and  it  Is  therefore 
as  much  In  the  possession  of  the  court  as 
If  already  in  the  bands  of  its  receiver." 
High  on  Receivers  (3d  Ed.)  t  136. 

It  la  claimed  that,  even  if  a  lien  bad  been 
established  by  the  proceedings  wblcb  com- 
plainant had  taken,  nevertheless  a  lien  would 
not  attach,  because  no  specific  property  and 
assets  were  described  in  the  bill  of  com- 
plaint. These  proceedings  were  taken  under 
our  statute  (sections  436,  437,  Comp.  Laws 
1897),  providing  for  Judgment  creditors'  bills, 
authorizing  filing  the  same  to  compel  tbe  dis- 
covery of  any  property  or  things  in  action 
belonging  to  defendant  or  money,  etc.,  due  to 
bim,  and  to  prevent  the  transfer  of  any  such 
property  (with  certain  exceptions).  Com- 
plainant has  followed  the  requirements  of 
tbe  statute,  and  chancery  rule  30.  This  was 
a  biU  for  a  discovery.  Tbe  bill  set  forth  that 
defendant  Pitts  bad  equitable  interests  in 
certain  property,  giving  a  description  of  a 
long  list  of  the  same,  and  prayed  discovery, 
etc  Tbe  description  was  as  specific  as  would 
be  possible  in  a  majority  of  these  cases. 
The  Btatnte  provides,  not  only  for  compel- 
ling discovery  by  tbe  court,  but  also  power 
to  decree  satisfaction  of  the  Judgment  out 
of  any  pn^erty,  money,  or  other  things  be- 
longing to  defendant  This  authorizes  pay- 
ment out  of  the  property  found.  To  hold 
as  contended  by  defendant  executor  would 
defeat  the  purpose  of  the  suit  and  of  tbe 
disclosure,  and  would  take  from  the  statute 
the  beneficial  effect  it  intended  to  give  suit- 
ors. Under  this  statute  the  lien  would  at- 
tach to  tbe  effects  which  might  be  ascertain- 
ed, to  the  amonnt  of  the  Judgment 

The  lien  of  complainant  upon  tbe  assets 
of  tills  estate  is  certainly  superior  to  tbe 
claims  of  all  unsecured  creditors;  and,  if 
this  property,  upon  disclosure  in  this  case, 
wonld  tiave  been  turned  over  to  the  receiver, 
then  it  logically  follows  that  this  lien  is  su- 
perior to  the  rights  of  the  personal  repre- 
sentative. In  effect  it  can  be  no  different 
from  a  mortgage  lien  on  property.  Death 
of  a  mortgagor,  and  the  administration  of 
his  estate,  would  not  operate  to  make  tbe 
mortgagee  contribute  to  the  expenses  of  last 
sickness,  etc.  In  this  case  the  same  rule 
would  apply,  except  as  to  property  exempted 
by  tills  statute. 

We  do  not  think  that  the  terms  of  the  de- 
cree, in  tbe  alternative,  allowing  the  ex- 
ecntor  to  pay  complainant's  Judgment  out 
of  the  assets  of  the  estate,  or  deliver  the  as- 
sets to  that  amount  to  tbe  receiver,  work 
any  Iiardship  against  the  execator.  If  tbe 
estate  should  prove  to  be  solvent  to  tbe  ex- 
tent  of   complainant's   Judgment   and    tbe 


claims  which  the  execator  would  be  reqnhred 
to  pay  before  distribution,  the  question 
could  not  arise.  If  the  estate  is  not  snffi- 
clent  for  such  purposes,  tbe  court  cannot 
take  from  complainant  that  which  rightful- 
ly belongs  to  it.  By  filing  this  claim  with' 
the  commissioners  on  claims,  giving  a  com- 
plete history  of  it  and  of  all  the  proceedings, 
complainant  released  no  right  The  record 
shows  that  it  gave  a  full  statement  of  the 
Judgment  relied  upon,  the  amount  paid  there- 
on, and  the  history  of  the  proceedings  under 
its  creditor's  bill,  as  herein  fully  set  forth. 
The  decree  of  the  circuit  court  is  affirm- 
ed, with  costs. 


THAYER  LUMBER  CO.  et  al.  v.  CITY  OF 
MUSKEGON  et  al. 

(Supreme  Ck>nrt  of  Michigan.     July  6,  1909.) 

1.  Mdnicipai.  Cobpobations  (I   514*)— PUB- 

UO  IlfPBOVBUERTS— ASSESSKEITT  FOB  BENE- 
FITS —  Resolution    fob    Levy  —  Rkassess- 

UENT — SUFFICIENCT. 

Where  a  special  sewer  assessment  was  held 
void  because  the  resolution  adopted  by  the  city 
council  did  not  designate  the  territory  to  be 
covered  by.  the  sewer  district,  and  t>ecaase  the 
published  notice  of  the  council  meeting  was  in- 
safficient,  that  the  resolution  for  reassessment 
did  not  provide  for  plans  and  diagrams  of  the 
sewer  district  or  estimates  of  cost,  except  by 
reference  to  those  adopted  nnder  the  former 
resolution,  did  not  afFect  the  validity  of  the 
reassessment 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  i  1207;    Dec.  Dig.  | 

2.  MuNioiFAL  Cobpobations  (|  614*) — Pcb- 

UO     IlIFBOVEMENTS— SPEOIAI,     ASSBSSICENTS 

— ^Reassessiients. 

Muskegon  City  Charter,  tit  11,  |  16,  pro- 
viding that  whenever  any  special  assessment 
shall,  in  the  opinion  of  the  council,  be  invalid  by 
reason  of  irregularities  in  the  proceedings,  or 
any  conrt  of  competent  jurisdiction  shall  ad- 
judge the  assessment  illegal,  the  council  may 
cause  a  new  assessment  to  be  made,  authorizes 
a  reassessment  in  two  classes  of  cases,  where 
in  the  council's  opinion  the  assessment  is  in- 
valid by  reason  of  any  irregularity  in  the  pro- 
ceedings, or  where  it  is  adjudged  invalid  by 
any  court  for  any  reason,  and  a  reassessment 
was  proper  where  the  original  assessment  was 
held  void  by  the  Supreme  Court  because  of  the 
insufficiency  of  the  resolution  ordering  it 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations.  Cent  Dig.  S  1207;  Dec  Dig.  { 
614.*] 

3.  Municipal  Cobpobations  (S  514*)— Pub- 
lic IVFBOVEUENTS  —  ASSESSMENTS  —  REAS- 
SESSllENT— PBOCEEDINGS— VALIDITT. 

A  reassessment  of  property  for  sewers  made 
nnder  Muskegon  City  Charter,  tit.  11,  i  15,  au- 
thorizing a  reassessment  by  the  city  council, 
if  any  conrt  shall  adjudge  the  assessment  ille- 
gal, whether  the  improvements  have  been  made 
or  not,  was  not  invalid  because  the  resolution 
did  not  expressly  show  it  was  a  reassessment  it 
having  referred  to  the  former  plans  and  the  con- 
tract made  under  the  former  resolution,  so  as  to 
show  that  the  present  proceedings  were  to  vali- 
date the  assessment  declared  invalid,  nor  did 
the  fact  that  the  resolution  for  reassessment 
reduce  the  assessment,  or  that  the  work  done 
had  been  partially  completed  nnder  a  contract. 


*F»r  other  eaus  see  ume  topic  and  ■action  NUMBER  In  Dae.  4  Am.  Digs.  1*07  to  data,  *  Raportar  Indazaa 


Digitized  by  VjOOQ  l€ 


190 


122  NOKTHWESTERN  RBPORTBH. 


(Micli. 


made   under  the   former  resolution,  affect  the 
validity  of  the  reassessment. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  i  1207;  Dec.  Dig.  { 
ol4.*] 

4.  MUNICIPAI,  CORPOBATIONB  (8  514*)— PUB- 
LIC   IMFBOVEMBNTS  —  ABSESSMKNT  —  REAS- 

SESsuENi^APPEAir— Hab)(u:ss  Ebbob. 
Property   owners  cannot   complain   that  a 
reassessment   of   property    for   sewers   reduced 
the  amount  of  the  original  assessment. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  {  1215;    Dec.  Dig.  { 

5.  M0NIOIPAI.  COBPOBATIONS  ({  514»)— PUB- 
UO  lUPBOVEMENTS  —  ASSESSMENT  —  REAS- 
SESSMENT—CHANGE  IN  Plans. 

Changes  in  the  plans  and  specifications 
for  sewers,  made  in  the  resolution  tor  reassess- 
ment, which  were  of  small  consequence  com- 
pared with  the  magnitude  of  the  work,  would 
not  affect  the  validity  of  the  reassessment. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  {  1207;  Dec.  Dig.  { 
514.  •] 

Appeal  from  Circuit  Court,  Musltegon 
County,  In  Chancery;  Clarence  W.  Sessions, 
Judge. 

Suit  by  the  Thayer  Lumber  Company  and 
others  against  the  City  of  Muskegon  and  oth- 
ers to  enjoin  the  enforcement  of  <t  special  as- 
sessment From  a  decree  for  complainants, 
defendants  appeal.  Reversed,  and  bill  dis- 
missed. 

Argued  before  BLAIR,  C.  J.,  and  MONT- 
GOMERY, HOOKER,  BROOKE,  and  McAL- 
VAl,  JJ, 

James  E.  Sullivan  and  William  Carpenter, 
for  appellants.  Nims,  Hoyt,  Erwln  &  Van- 
(lerwerp,  for  appellees. 

BROOKE,  J.  This  case  is  a  sequel  to  ttie 
case  of  Tliayer  Lumber  Company  v.  City  of 
Muskegon,  152  Mich.  59,  115  N.  W.  957.  In 
1900  the  council  of  the  city  of  Muskegon  de- 
cided to  buUd  an  extensive  system  of  sew- 
ers in  what  was  afterwards  denominated 
"Special  Sewer  District  No.  7."  This  dis- 
trict comprises  a  large  and  thickly  populat- 
ed area  of  the  city.  The  council  adopted 
plans,  plats,  speclflcationg,  and  estimates  for 
n  system  in  this  district,  and  passed  resolu- 
tions designed  to  descrll>e  tbem  and  to  form 
the  sewer  district,  and  let  the  contract  for 
the  construction  of  the  sewer,  and  the  work 
was  partially  performed  thereunder.  On 
March  18tb,  the  proceedings  liad  reached  the 
stage  that  a  resolution  was  adopted  fixing 
the  amount  to  be  levied,  by  special  assess- 
ment, and  ordering  that  It  be  levied  on  the 
district  named  in  the  resolution  and  appoint- 
ed the  board  of  assessors.  A  day  was  fixed 
for  hearing  objections  to  the  same.  Before 
the  arrival  of  that  date,  the  Thayer  Lumber 
Company,  one  of  the  complainants  in  this 
suit,  filed  its  bill  of  complaint  In  the  circuit 
i-ourt  to  enjoin  the  confirmation  of  the  roll 
niid  to  restrain  the  city  from  levying  any 
Hssessment  on  its  lands,  for  the  reason  that 


the  council  Iiad  not  followed  the  charter  pro- 
visions, and  that  the  assessment  roll  as  re- 
ported by  the  council  was  therefore  void. 
The  circuit  court  rendered  a  decree  boldiug 
the  assessment  void  because  of  defects  in  tbe 
resolution  adopted  October  8,  1906,  and  of 
corresponding  defects  in  tbe  notice  given  by 
the  council  of  the  meeting  to  be  held  No- 
vember 5,  1906,  to  hear  objections.  That  de- 
cree was  afiSrmed  in  this  court.  See  Thay- 
er Lumber  Company  v.  City  of  Muskegon, 
supra.  On  tbe  28th  day  of  January,  1907,  a 
contract  bad  been  entered  into  between  tbe ' 
city  and  William  R.  Jones  for  the  construc- 
tion of  the  various  sewers  in  District  No.  7, 
for  the  sum  of  $48,084.64,  and  many  of  tbe 
sewers  in  said  district  had  by  said  con- 
tractor been  constructed  before  the  deter- 
mination of  the  case  in  this  court. 

Section  15,  tit  11,  of  the  Chartor  of  tbv 
City  of  Muskegon,  is  as  follows :  "Whenever 
any  special  assessment  shall,  in  the  opinion 
of  the  council,  be  invalid  by  reason  of  any 
irregularity  or  informality  in  the  proceed- 
ings, or  if  any  court  of  competent  Jurisdic- 
tion shall  adjudge  such  assessment  to  be  Il- 
legal, tbe  cotmcil  shall,  -whether  the  improve- 
ment has  been  made  or  not,  or  whether  any 
part  of  the  assessments  have  been  paid  or 
not,  have  power  to  cause  a  new  assessment 
to  be  made,  for  the  same  purpose  for  which 
the  former  assessment  was  made.  All  pro- 
ceedings on  such  re-assessment  and  for  the 
collection  thereof  sball  be  conducted  in  tbtt 
same  manner  as  provided  for  tbe  original  as 
sessment.  Whenever  any  sum  or  any  part 
thereof,  levied  upon  any  premises,  in  th*- 
assessment  so  set  aside  has  been  paid,  and 
not  refunded,  the  payment  so  made  sball  be 
applied  upon  the  re-assessmeut,  and  the  re- 
assessment shall  to  that  extent  be  deemed 
satisfied." 

On  May  18,  1908,  the  council  acting  under 
tbe  foregoing  provision  passed  tbe  following 
resolution : 

"Resolved,  that  tbe  following  lands  be, 
and  they  are  hereby  constituted  a  special 
sewer  district  to  be  known  and  described 
as  Special  Sewer  District  No.  7.  The  lands 
constituting  said  special  sewer  district  are 
described  as  follows: 

"It  is  further  resolved,  that  the  construc- 
tion within  said  district  of  tbe  sewers  here- 
inafter mentioned  and  described,  for  drain- 
age and  sanitary  purposes,  is  a  necessary 
public  improvement,  and  this  council  deter- 
mines to  make  tbe  same  and  that  cost  and 
expense  thereof  shall  be  defrayed  In  the  fol- 
lowing manner,  viz.,  fifty  per  cent,  of  the 
cost  and  expense  sball  be  paid  from  the 
general  sewer  fund  of  said  city,  and  the 
remainder  of  such  cost  and  expense  shall 
be  defrayed  by  special  assessment  on  all 
the  taxable  property,  lands  and  premises 
included  within  the  said  district  in  propor- 
tion to  the  estimated  benefltg  resulting  to 


•For  other  caaes  see  sani*  topic  and  aectloa  NUMBER  In  Q«c.  *  Am.  Digs.  U07  to  datA.  4  Raportw  Ind«z«a 


Digitized  by  VjOOQ  l€ 


Midi.) 


THAYER  LUMBEE  CO.  v.  CITY  OF  MUSKEGOK- 


191 


euch  parcel   respectively  from   the  coustruc- 
liou  of  said  sewers. 

"It  Is  further  resolved,  that  the  estimates 
of  the  cost  of  said  sewers,  and  the  plats  and 
diagrams  of  said  district,  prepared  and  re- 
vised by  J.  H.  Blomshield,  civil  engineer,' 
heretofore  adopted  by  the  council  of  the 
city  of  Muskegon,  and  by  Its  authority  duly 
filed  with  the  city  recorder  on  the  8th  day 
of  October,  1906,  be  and  they  are  hereby  mod- 
ified In  the  following  particulars:  (Modifi- 
cations follow.) 

"The  said  sewers  are  the  same  that  are 
covered  by  a  contract  heretofore  made  with 
William  R.  Jones  and  have  been  partially 
constructed  by  him.  The  route,  location, 
grade  and  dimensions  of  all  said  sewers  are 
shown  by  the  plats  and  diagrams  herein  ap- 
proved and  adopted,  and  in  case  there  shall 
be  any  variance  between  the  description 
thereof  In  this  resolution  and  the  plats  and 
diagrams,  the  plats  and  diagrams  shall  con- 
trol. 

•'It  is  further  resolved,  that  the  recorder 
give  notice  by  publication  for  at  least  two 
.successive  weeks  in  the  Muskegon  News,  the 
ofScial  newspaper  of  said  city  of  Muskegon, 
of  the  proposed  construction  of  said  sewers, 
and  that  the  plats  and  diagrams  and  esti- 
mates of  the  cost  thereof  may  be  found  for 
►•lamination  In  the  office  of  the  city  recorder, 
and  that  the  council  will  meet  in  the  coun- 
•  il  room  in  the  said  city  of  Muskegon  on  the 
fifth  day  of  June,  1908,  at  eight  o'clock  in  the 
Hftemoun,  to  consider  suggestions  and  objec- 
tions with  respect  to  said  sewers  and  to  the 
♦•vying  of  a  s|)ecial  assessment." 

On  June  5tb,  1008,  the  council  met  at  the 
rime  and  place  mentioned  In  the  notice  and 
.Hlopted  the  following  resolution: 

•'Whereas,  the  council  of  the  city  of  Mus- 
kegon did,  on  the  18th  day  of  May,  1908,  by 
resolution  dnly  adopted,  appoint  the-  fifth 
day  of  June,  1908,  at  eight  o'clock  in  the  aft- 
ernoon, as  the  time  when,  and  the  council 
room  in  the  city  of  Muskegon  as  the  place 
where,  the  council  would  meet  for  the  pur- 
pose of  considering  suggestions  and  objec- 
tions to  the  construction  of  sewers  mention- 
ed and  set  forth  in  said  resolution  and  to 
consider  objections  to  the  levying  of  a  spe- 
cial assessment  therefor  on  the  lands  em- 
braced In  the  sewer  district  created  by  said 
resolution  and  designated  Special  Sewer  Dis- 
trict No.  7. 

"And  whereas,  it  appears  by  due  'proof 
now  before  this  council  that  notice  of  said 
hearing  has  been  dnly  given  as  reaulred  by 
law,  and  full  consideration  and  hearing  of 
all  objections  to  the  construction  of  said 
sewers  and  to  the  levying  of  a  special  as- 
sessment on  the  said  special  sewer  district, 
to  defray  the  cost  and  expense  thereof,  as 
aforesaid,  having  been  had,  and  the  owners 
of  more  than  one-half  of  the  property  to  be 
assessed  therefor  not  having  objected  In 
writing  thereto; 

"Therefore,  be  it  resolved,  that  the  con- 


sti'uction  of  said  sewers  as  determined  in 
said  resolution  be,  and  the  same  is  hereby 
ordered." 

Thereupon  the  complainants  herein  filed 
their  bill  of  complaint  praying  for  an  in- 
junction against  the  defendants  restraining 
them  from  enforcing  said  special  assessment. 
Upon  a  hearing  the  Injunction  was  granted, 
from  which  decree  the  defendants  appeal. 

It  is  the  claim  of  the  complainants  that  the 
proceedings  of  May  18,  1908,  and  those  fol- 
lowing that  date,  by  the  common  council 
cannot  be  sustained  as  a  valid  reassessment 
or  as  a  new  and  original  assessment  The 
learned  circuit  Judge  held  in  part  as  follows : 
"The  resolution  of  May  18,  1908,  contains  no 
provision  for  plats  and  diagrams  of  the  sew- 
er district,  nor  for  an  estimate  of  the  cost 
of  the  sewers  except  by  reference  to  plats, 
diagrams,  and  estimates  adopted  by  the  coun- 
cil and  filed  on  the  8th  day  of  October,  1906. 
The  resolution  of  October  8,  1906,  and  the 
notice  of  the  hearing  of  objections  given 
thereunder  were  particular  objects  of  attack 
in  the  former  suit  and  were  specifically  do- 
creed  by  the  courts  to  be  void  and  of  no  ef- 
fect. Therefore,  no  part  of  that  resolution 
can  be  used  for  any  purpose  in  the  new  pro- 
ceedings, and  the  plats,  diagrams,  and  esti- 
mates which  the  council  then  attempted  to 
adopt  cannot  form  any  basis  for  the  subse- 
quent actions  of  the  defendants.  The  manda- 
tory provision  of  the  city  charter  requiring 
plats,  diagrams,  and  estimates  of  cost  to  be 
made  and  filed  'before  ordering  any  public 
improvement'  and  'before  proceeding  to  the 
construction  of  any  sewer,'  have  not  been 
obeyed.  •  ♦  •  The  validity  and  binding 
force  of  the  contract  for  the  construction  of 
these  sewers,  as  between  the  city  of  Muske- 
gon and  the  contractor,  cannot  and  need  not 
be  determined  in  this  suit,  and  no  opinion 
is  herein  expressed  upon  that  subject.  But, 
as  between  these  parties  and  so  far  as  it 
forms  the  basis  of  levying  a  special  assess- 
ment upon  the  property  of  these  complain- 
ants, such  contract  was  an  essential  and 
integral  part  of  the  former  proceedings  or 
the  defendants,  and  to  that  extent  it  was 
declared  void  by  the  decree  of  this  court  and 
the  Supreme  Court.  So  far  as  this  case  Is 
concerned,  those  former  proceedings  are 
dead,  and  it  is  beyond  the  power  of  the  de- 
fendants to  put  new  life  into  them  or  any 
of  them." 

In  the  foregoing  conclusions  we  think  the 
learned  circuit  Judge  was  in  error.  An  ex- 
amination of  the  opinion  in  Thayer  Lumber 
Co.  T.  City  of  Muskegon,  supra,  shows  that. 
"  'In  accordance  with  the  views  herein  ex- 
pressed a  decree  will  be  made  in  favor  of 
the  complainant  and  against  the  defendants, 
setting  aside  and  holding  for  naught  all  of 
the  proceedings  heretofore  taken,  and  rp- 
stralnlng  any  further  proceedings  to  levy 
the  special  assessment  in  question  upon  and 
against  the  lands  of  complainant.' " 

This  conclusion  was  reached  by  this  court 


Digitized  by  LjOOQ  l€ 


192 


122  NOBTHWESTEKN  REPORTER. 


(Mlcb. 


apparently  (1)  because  the  resolution  adopted 
by  the  council  of  the  city  of  Muskegon  on 
October  8.  1906,  did  not  designate  the  dis- 
trict to  be  covered  by  said  Special  Sewer  Dis- 
trict No.  7;  and  (2)  because  the  published 
notice  of  the  meeting  of  the  council  of  No- 
vember 5,  1906,  to  consider  objections  to  the 
proposed  Improvement  was  not  sufficient.  We 
are  unable  to  discover  where  any  question 
has  heretofore  been  raised  afTecting  the 
plats,  diagrams,  and  estimates  or  the  deter- 
mination of  necessity  for  the  sewer.  Nor  do 
we  think  they  are  subject  to  any  attack. 

Now,  referring  to  the  resolution  of  May 
18th :  (1)  It  designates  the  lands  to  be  as- 
sessed- Section  8,  tit.  11,  of  the  City  Char- 
ter. (2)  It  determines  the  proposed  sewer 
to  be  a  necessary  public  Improvement.  Sec- 
tion 8,  tit  11.  (3)  It  refers  to  estimates, 
plats,  and  diagrams  of  the  work  and  locality 
to  be  improved,  adopts  them,  and  orders  them 
to  be  filed  with  the  city  recorder.  Section 
4,  tit.  11.  (4)  It  determines  what  portion  of 
the  expense  shall  be  borne  by  special  assess- 
ment, and  what  shall  be  borne  by  the  city. 
Section  3,  tit.  11.  (5)  It  provides  the  method 
of  making  the  said  assessment  Section  6, 
tit.  18.  (6)  It  provides :  "The  said  sewers  are 
the  Same  that  are  covered  by  a  contract 
heretofore  made  with  William  B.  Jones  and 
have  been  partially  constructed  by  him.  The 
route,  location,  grade,  and  dimensions  of  all 
said  sewers  are  shown  by  the  plats  and  dia- 
grams herein  approved  and  adopted."  Sec- 
tion 7,  tit  13.  (7)  It  provides  for  notice, 
which  was  given  in  accordance  with  section 
7,  tit  13;  and  thereafter,  on  June  5th,  by 
the  resolution  above  quoted,  ordered  the  sew- 
er to  be  built 

We  are  unable  to  see  how  the  rights  of  the 
complainants  were  in  any  wise  prejudiced 
by  the  fact  that  the  sewer  had  partially  been 
constructed  under  a  contract  with  Jones 
prior  to  this  time.  See  Brevoort  v.  Detroit 
24  Mich.  322.  At  the  time  and  place  set  by 
the  council  for  the  hearing  of  objections  the 
property  owners  in  the  special  district  could 
have  compelled  the  council  to  forego  making 
the  Improvement  at  their  expense  "If  the 
owners  of  more  than  one-half  of  the  property 
to  be  assessed  therefor  should  object  in  writ- 
ing thereto."  Had  this  course  been  taken  no 
special  assessment  could  have  been  made, 
and  the  cost  of  the  sewers  already  construct- 
ed must  have  been  borne  by  the  city  at  large, 
If  the  contract  theretofore  existing  between 
It  and  Jones  were  valid. 

Counsel  for  complainants  lay  much  stress 
upon  the  charter  provisions  with  reference  to 
reassessments,  which  are  as  follows:  "When- 
ever any  special  assessment  shall,  In  the 
opinion  of  the  council,  be  Invalid  by  reason  of 
any  Irregularity  or  Informality  In  the  pro- 


ceedings, or  if  any  court  of  competent  Juris- 
diction shall  adjudge  such  assessment  to  be 
illegal  •.  •  •  the  councU  shall  ♦  •  • 
have  power  to  cause  a  new  assessment  to 
be  made."  It  Is  the  claim  of  counsel  for  the 
complainants  that  the  words  "by  reason  of 
any  irregularity  or  Informality  in  the  pro- 
ceedings" should  be  construed  as  qualifying 
the  subsequent  portion  of  the  phrase  "or  if 
any  court  of  competent  Jurisdiction  shall 
adjudge  such  assessment  to  be  illegal."  This 
construction  would  make  the  last  provision 
read:  "If  any  court  of  competent  Jurisdic- 
tion shall  adjudge  such  assessment  to  be  !!• 
legal  by  reason  of  any  irragularity  or  in- 
formality in  the  proceedings."  This  construc- 
tion is  clearly  unwarranted  and  would  ex- 
clude a  reassessment,  if  the  illegality  of  the 
assessment  rested  upon  Jurisdictional  grounds. 
The  use  of  the  disjunctive  "or"  shows  that 
there  are  two  distinct  classes  of  cases  In 
which  reassessment  may  be  had:  First, 
where,  in  the  opinion  of  the  conncU,  the  as- 
sessment Is  invalid  by  reason  of  any  irregu- 
larity or  informality  In  the  proceedings ;  and, 
second,  where  any  court  of  competent  juris- 
diction shall  adjudge  such  assessment  to  be 
Illegal.  In  the  last' case  it  is  not  necessary 
to  add  the  words  "for  any  reason";  the 
language  itself  is  nnqnalifled.  The  assess- 
ment in  the  case  at  bar  was  in  the  former 
adjudication  held  to  be  Illegal.  It  was  there- 
fore a  proper  case  for  reassessment  See 
Schintgen  ▼.  City  of  La  Crosse,  117  Wis.  158, 
94  N.  W.  84.  We  do  not  think  that  because 
of  the  failure  of  the  council  to  set  up  in  its 
resolution  the  fact  that  it  was  a  reassess- 
ment Is  fatal.  It  did  by  reference  in  the 
resolution  to  the  former  plans  and  specifica- 
tions and  the  contract  with  Jones  clearly  In- 
dicate that  by  the  proceedings  then  undertak- 
en it  sought  to  make  valid  by  due  notice  and 
proper  description  the  assessment  which  bad 
by  this  court  been  declared  invalid.  The  fact 
that  by  the  terms  of  the  resolution  the  special 
assessment  was  reduced  from  76  per  cent  to 
50  per  cent.  Is  a  matter  of  no  consequence, 
and  is  one  of  which  these  complainants  can- 
not in  any  event  complain.  The  changes 
made  in  the  resolution  as  to  the  plans  and 
specifications  were  of  small  consequence  com- 
pared with  the  magnitude  of  the  whole  work, 
and  should  not  be  considered. 

As  the  case  is  now  presented  to  this  court 
the  determination  of  this  court  In  the  case 
of  Tpwnsend  v.  City  of  Manistee,  88  Mich. 
408,  SO  N.  W.  321,  is  controlling.  See,  also, 
French  v.  Lansing,  30  Mich.  378;  Smith  v. 
Detroit  120  Mich.  572,  79  N.  W.  808;  Corliss 
V.  Highland  Park,  132  Mich.  162,  98  N.  W. 
264,  610,  96  N.  W.  416. 

The  decree  of  the  court  below  will  be  re- 
versed, and  the  bill  diamlssed. 


Digitized  by 


Google 


Mich.) 


PEOPLE  ▼,  VAN  ALSTTNB. 


193 


PEOPLE  T.  VAN  ALSTTNB. 
(Sapieme  Court  of  Michigan.     July  6,  1900.) 

1.  Exceptions,  Bux  of  (g  33*)— Dbteois— 
Excuse. 

That  the  preparation  of  a  bill  of  exceptions 
was  done  by  a  stenographer  will  not  excuse  a 
prolix   bill. 

[Ed.  Note.— For  other  cases,  see  Exceptions, 
BiU  of,  Dec.  Dig.  {  33.*] 

2.  Appeaxi  and  Ebbob  (i  758*)— Bbiefs— As- 
sign msnts  or  Ebbob— Statements. 

Under  Sup.  Ct.  Rule  40,  requiring  appel- 
lant's brief  to  state  clearly  and  concisely  the 
errors  relied  on,  the  questions  involved,  and 
the  manner  in  which  they  were  raised,  a  state- 
ment as  to  certain  points  relied  on,  that  these 
and  kindred  subjects  will  be  discussed  in  their 
order,  is  not  a  sufficient  statement  of  the  errors 
relied  on,  as  the  statement  should  enable  the 
court  to  determine  what  errors  are  abandoned. 
[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,   Dec.  Dig.  i  758.*] 

3.  intoxicatirq  llquors  (§  226*)  —  local 
Option  JLaw  —  Cbiminai,  Pbosecutions  — 
Admission  or  Evidence. 

In  a  prosecution  of  a  druggist  for  the  sale 
of  liquor  in  violation  of  the  local  optioa  law, 
by  permitting  it  to  be  drunk  on  the  premises, 
etc.,  accused's  reports  made  to  the  prosecuting 
attorney  as  required  by  the  law,  showing  sales 
actually  made  by  him,  were  admissible  in  con- 
nection with  other  evidence  relating  to  the 
place  where  the  sales  were  made  to  customers, 
and  to  the  frequency  of  the  purchases  and  the 
facility  for  drinking  liquor  upon  the  premises 
without  detection,  which  the  evidence  showed 
could  be  done,  though  none  of  the  sales  reported 
were  shown  to  have  been  unlawful. 

[£ld.  Note.— For  other  cases,  see  Intoxicating 
Liqnois,  Cent  Dig.  H  282-286;  Dec.  Dig.  1 
226.*] 

i.  Ihtoxicatino  Liqvobb  (g  236*)— Cbiminai, 
Prosecutions— Sufficiency  of  Evidence- 
Violation  OF  Local  Option  Law. 

In  a  prosecution  of  a  druggist  for  selling 
intoxicants  in  Tiolation  of  the  local  option  law, 
evidence  held  to  sustain  a  finding  that  accused's 
drug  business  was  merely  a  sham  to  conceal  bis 
principal  business,  which  was  the  sale  of  liq- 
uor in  violation  of  law. 

[E3d.  Note. — For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  i  311;   Dec.  Dig.  {  236.*] 

&.    INTOXIOATINO  LlQITOBS  (i  233*)— CBIMINAL 

Pbosecutions— Violation  of  Local  Op- 
tion Law— Admissibilitt  of  Evidence. 
In  a  proeecution  against  a  druggist  for  the 
sale  of  liquor  in  violation  of  the  local  option 
law,  by  permitting  it  to  be  drunk  on  the  prem- 
ises, etc.,  evidence  was  admissible  that  accused 
maintained  a  room  adjoining  his  salesroom,  and 
that  purchasers  sometimes  drank  liquor  pur- 
chased from  him  therein,  it  not  being  shown 
that  accused  had  no  knowledge  of  how  the  liq- 
nor  sold  by  him  was  used. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  §{  293-297;  Dec  Dig.  § 
233.*] 

6u  CBmnfAL  Law  (8  829*)— Instbuctions— 

BXQUESIS. 

In  a  prosecution  of  accused,  a  druggist  for 
rlolating  the  local  option  law  by  selling  intoxi- 
cants to  be  drunk  on  the  premises,  etc.,  a  re- 
? [nested  charge  that  if  one  purchased  liquor 
rom  accused  and  secreted  himself  in  his  store- 
room or  water-closet  and  drank  the  liquor  with- 
oat  accused's  knowledge,  it  would  not  be  sell- 
ing liquor  to  be  drunk  upon  the  premises  with- 
in the  statute,  was  sufficiently  covered  by  a 
charge  that  by  drinking  liquor  on  the  premises 


was  meant  the  immediate  premises  where  the 
liquor  was  purchased,  and  did  not  include  ad- 
joining lota  over  which  accused  bad  no  control, 
BO  that,  if  accused  sold  beer  in  bis  drug  store 
and  it  was  taken  to  a  lot  adjoining  the  store 
and  drunk  by  the  purchaser  without  accused's 
knowledge  or  consent,  it  would  not  constitute  a 
sale  of  liquor  to  be  drunk  on  the  premises. 

[Ed.    Note.— For    other    cases,    see    Criminal 
Law,  Cent  Dig.  {  2011 ;   Dec.  Dig.  I  829.*] 

7.  Cbiminai  Law    ({   829*)— Instbuctions— 
Requests. 

In  a  prosecution- of  a  druggist  for  selling 
liquor  as  a  beverage  in  violation  of  the  local 
option  law,  where  there  was  evidence  that  ac- 
cused had  a  back  room  in  his  store,  equipped 
with  a  large  refrigerator  for  keeping  beer,  and 
that  many  customers  had  drunk  beer  therein, 
a  requested  charge  that  if  liquor  was  purchased 
from  accused  upon  representations  that  it  was 
for  medicinal  use,  and  the  purchaser  afterward 
used  it  as  a  beverage  without  accused's  knowl- 
edge, accused  would  not  be  liable,  was  suffi- 
ciently covered  by  a  charge  that  the  statute  pro- 
hibited a  druggist  from  selling  intoxicants  to  be 
drunk  on  the  premises,  that  accused  had  several 
rooms  in  his  building,  and  that  the  state  claim- 
ed that  purchasers  of  beer  drank  it  in  accused's 
back  room,  and,  if  they  did  so,  accused  was 
charged  with  notice  of  such  fact  and  could  not 
avoid  liability  by  their  going  into  another  room 
where  he  could  not  see  them  drink. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  {  2011;   Dec  Dig.  |  829.*] 

8.  Cbiminal  Law  (§   1171*)— Habmless  Eb- 
bob—Limitation  OF  Time  of  Aboument. 

Where  accused's  counsel  did  not  use  all  of 
the  time  given  bim  for  argument,  he  was  not 
injured  by  the  court's  action  in  limiting  the 
argument  to  a  certain  time. 

[EM.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  |  3126;   Dec.  Dig.  {  1171.*] 

9.  Cbiminal  Law   (|  814*)— Pbosectitions— 
Instbuctions— Applicabilitt  to  Case. 

In  a  prosecution  of  a  druggist  for  the  sale 
of  intoxicants  in  violation  of  the  local  option 
law,  a  requested  instruction  that  it  was  not 
necessai7,  to  make  the  purchase  of  liquor  one 
for  medicinal  purposes,  tnat  it  be  made  for  the 
purchaser's  personal  use,  as  any  adult  could 
purchase  liquor  for  medicinal  purposes  for  an- 
other, was  properly  refused,  where  there  was  no 
evidence  to  which  it  was  applicable. 

[BM.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  {  1979;   Dec  Dig.  i  814.*] 

Appeal  from  Circuit  Court,  Van  Buren 
County;  Ia  Burget  Des  Volgnes,  Judge. 

Charles  H.  Van  Alstyne  was  convicted  of 
selling  liquor  in  violation  of  the  local  op- 
tion law,  and  he  appeals.    Afldrmed. 

Defendant's  twenty-eighth  request  was: 

"You  are  Instructed  that  It  Is  not  necessa- 
ry for  the  purchase  of  liquor  for  medicinal 
purposes  should  be  made  by  the  purchaser 
for  bis  own  personal  use,  as  any  adult  per- 
son has  a  right  to  purchase  liquor  for  me 
diclnal  purposes  for  another  adult  person  or 
members  of  his  own  family." 

Respondent's  fortieth  and  forty-flrst  re- 
quests were: 

"You  are  Instructed  that  the  statute  pro- 
vides that  it  Is  a  violation  of  law  to  sell  liq- 
uor to  be  dnmk  on  the  premises;  but  I  In- 
struct yon  that  If  any  person  or  persons  pur- 
chased liquor  of  the  respondent  during  the 
time  covered   by  the  information  on   this 


•Tor  other  cues  see  sam*  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  Sc  Reporter  Indexes 
122N.W.-18 


Digitized  by 


L-oogle 


194 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


case,  and  secretly  secreted  themselves  In  the 
storeroom  or  water-closet  of  respondent's 
store  and  drank  said  liquor  without  the 
knowledge  of  said  respondent,  then  the  same 
would  not  be  a  sale  of  liquor  to  be  drank 
upon  the  premises  within  the  meaning  of  the 
statute. 

"You  are  instructed  that  the  statute  pro- 
vides that  the  druggist  sliall  not  make  a 
sale  of  liquor  to  be  used  as  a  beverage,  but 
that  if  the  respondent  made  sales  of  liquor 
to  any  person  or  persons  during  the  period 
covered  by  this  Information  upon  the  state- 
ment of  such  purchaser  that  It  was  for  me- 
dicinal use,  in  good  faith,  and  such  purchaser 
or  purchasers  afterwards  secretly  used  the 
same  as  a  beverage  unbeknown  to  the  re- 
spondent, then  such  use  as  a  beverage  would 
not  make  the  respondent  liable  in  this  case, 
as  the  same  would  not  constitute  a  sale  to 
be  used  as  a  beverage  within  the  meaning  of 
the  statute." 

Argued  before  MONTGOMERY.  OSTRAN- 
DER.  HOOKER,  MOORE,  and  BROOKE,  JJ. 

Barnard  &  Lewis,  for  appellant.  Glenn  H 
Warner,  Pros.  Atty.,  and  Jno.  E.  Bird,  Atty. 
Gen.,  for  the  People. 

HOOKER,  3.  This  cause  is  before  us  on 
103  assignments  of  error,  2  of  which  contain 
38  ditterent  allegations  of  error.  A  large 
proportion  of  these  assignments  and  allega- 
tions are  frivolous,  and  counsel  attempt  to 
excuse  a  needlessly  prolix  bill  of  exceptions 
by  the  statement  that  his  stenographer  pre- 
pared it.  It  should  be,  and  we  think  that 
it  is,  understood  by  the  profession  that  the 
preparation  and  settling  of  a  bill  of  excep- 
tions call  for  a  high  order  of  professional 
skill  and  knowledge,  and  we  cannot  counte- 
nance the  practice  of  turning  the  duty  over 
to  unprofessional  stenographera,  or  Inexpe- 
rienced office  or  clerical  help. 

Counsel  has  also  omitted  compliance  with 
rule  40  of  this  court,  the  general  statement 
of  certain  points  relied  on  with  the  an- 
nouncement that  "these  and  kindred  sub- 
jects will  be  discussed  in  their  order"  not 
being  a  statement  of  the  errors  relied  on,  as 
we  have  heretofore  construed  the  rule.  The 
statement  should  enable  the  court  to  learn 
what  errors  are  abandoned,  which  this  brief 
does  not. 

We  have  gone  through  this  record  and  at- 
tempted to  ascertain  the  more  important  and 
substantial  questions,  and  shall  omit  refer- 
ence to  all  others.  These  points  are:  (1) 
The  introduction  In  evidence  of  defendant's 
reports  of  sales.  (2)  The  admission  of  testi- 
mony regarding  the  disposition  of  liquors 
purchased,  and  the  charge  relating  thereto. 

(3)  The    limitation    of   time   for    argument. 

(4)  The  propriety  of  the  prosecutor's  argu- 
ment. (5)  The  refusal  to  give  defendant's 
11th,  28th,  39tb.  40th,  41st,  and  42d  requests 
to  charge.  (6)  Some  objections  to  the  charge 
as  given. 

A  brief  outline  of  the  facts  in  the  case  will 


be  given,  to  show  the  manner  In  which  the 
legal  questions  arise.  The  defendant  Is 
charged  with  a  continuing  violation  of  the 
local  option  law,  by  keeping  an  alleged  drug 
store  where  it  was  his  habitual  practice  -to 
sell  Intoxicating  liquor  as  a  beverage  and 
contrary  to  law.  There  was  some  testimony 
tending  to  show  that  one  or  more  persons 
purchased  liquor  from  the  defendant,  which 
they  drank  in  his  presence  upon  the  prem- 
ises. The  reports  made  to  the  prosecuting 
attorney  by  defendant,  as  required  by  law, 
were  admitted  In  evidence,  although  there 
was  an  absence  of  direct  proof  that  many, 
if  any,  of  the  sales  therein  listed  were  un- 
lawful. 

There  was  proof  that  defendant's  door  to 
one  of  the  back  rooms  was  equipped  with  a 
"buzzer,"  and  that  persons  were  in  the  hab- 
it of  operating  it,  whereupon  defendant's 
clerk  would  open  the  door  and  ask,  "What 
do  you  want  for  medical  purposes?"  and 
band  out  the  Intoxicating  liquor  demanded. 
It  was  shown  that  a  back  room  was  equip- 
ped with  a  refrigerator  12  or  more  feet  long, 
and  proportionately  wide  and  high,  in  which 
he  kept  beer  upon  ice,  for  bis  customers. 
The  reports  heretofore  alluded  to  showed 
long  lists  of  sales  of  beer,  wine,  gin,  whis- 
ky, and  alcohol,  and  we  append  from  the 
record  a  list  of  such  sales  for  the  period 
covered  by  the  information: 

1907.  Beer.  Whisky.  Wine.  Gin.  Alcohol. 
May.     59  cues.       46  qts.         42  ox.       74  ox.       IS  ox. 


July. 

122 

" 

63 

" 

135 

" 

67  " 

67 

Aug. 

109 

ffl 

74 

M 

120 

M 

49  " 

82 

Sep. 

6S 

M 

59 

M 

S7 

M 

12  " 

S4 

Oct. 

26 

M 

52 

*• 

87 

M 

46  " 

60 

Not. 

23 

M 

63 

f( 

69 

M 

27  " 

68 

Dec. 

30 

U 

64 

M 

49 

■i 

8  - 

28 

1908 

Jan. 

« 

M 

43 

«• 

44 

M 

17  '• 

33 

Feb. 

23 

M 

48 

M 

64 

" 

39  •• 

62 

Mar. 

29 

M 

67 

«• 

7 

M 

SO  " 

16 

Apr. 

43 

M 

63 

" 

176 

M 

17  " 

58 

May. 

30 

M 

35 

'* 

82 

M 

19  " 

28 

Number  ot  sales,  6498. 

Reports  of  Sales. 

Counsel  says  that  the  reports  of  sales  were 
inadmissible,  because  it  was  not  shown  that 
such  sales  were  unlawful.  These  reports 
were  defendant's  admissions  of  sales  not  nec- 
essarily unlawful  sales,  but  of  sales  actually 
made  In  the  course  of  business.  They  were 
competent  evidence  for  this  purpose,  and 
they  were  to  be  considered  in  the  light  of 
the  other  evidence  relating  to  the  place,  the 
customers,  the  frequency  of  their  several 
purchases,  the  quantities  and  nature  of  the 
liquors  purchased,  the  facilities  for  drinking 
upon  the  premises  without  detection,  the 
practice  of  defendant's  patrons  in  that  re- 
gard, and  his  method  of  conducting  his  busi- 
ness. These  things  taken  together  show 
abundant  opportunity  for  a  conscientious  Ju- 
ror to  find  that  defendant's  alleged  drug- 
business  was  a  sham  and  cover  for  a  saloon, 
and  that  his  principal  business  was  the  sys- 
tematic evasion  of  the  liquor  law.  and  we 
fall  to  see  how  any  self-respecting  Juror 


Digitized  by  LjOOQ  l€ 


HlchJ 


PEOPLE  V.  VAN  AL8TTNB. 


195 


conld  have  reached  any  other  conclusion. 
Indeed,  we  should  hesitate  to  reverse_  the 
case  had  a  verdict  been  directed.  There  was 
no  error  In  admitting  and  allowing  the  jury 
to  folly  examine  and  analyze  these  reports. 

Disposition  of  Ltqnor  Purchase. 

The  people  contended,  and  there  was  evi- 
dence tending  to  show,  that  the  defendant 
had  a  toUet  room,  adjoining  what  may  prop- 
erty be  called  his  "taproom,"  In  which  there 
were  toilet  facilities  and  a  sink  with  water, 
and  a  shelf  upon  which  there  was  kept  a 
glass.  This  was  conclusively  proved,  not 
being  denied.  There  was  also  evidence  that 
pnrchasers  sometimes  drank  liquor,  purchas- 
ed there,  in  that  room.  The  defendant's 
brief  states  that  "the  record  shows  that  the 
respondent  was  absolutely  uninformed  as  to 
what  use  the  liquor  was  put  to  after  It  left 
his  place  of  business  after  the  sale  was 
made,"  and  that  It  was  error  to  permit  evi- 
dence that  it  was  used  as  a  beverage  after 
being  taken  away.  How  it  can  be  said  that 
the  record  shows  that  the  defendant  did  not 
know  the  object  of  the  purchase  or  the  dis- 
position made  of  the  liquor,  inasmuch  as  the 
defendant  was  not  a  witness,  is  not  clear  to 
us.  The  testimony  was  proper  as  far  as  it 
went 

Complaint  Is  made  that  the  Judge  refused 
to  give  the  fortieth  and  forty-first  requests  to 
charge,  which  In  effect  were  that  "If  a  per- 
son purchased  liquor  of  the  respondent  and 
secretly  secreted  himself  in  the  storeroom 
and  drank  the  liquor  without  the  knowledge 
of  the  defendant,  the  transaction  could  not 
be  a  sale  to  be  drank  upon  the  premises 
within  the  meaning  of  the  statute,"  and  ar- 
gues that  'If  defendant  made  sales  to  any 
person  upon  the  statement  that  it  was  for 
medldnal  purposes  In  good  faith,  and  the 
purchaser  afterwards  secretly  used  it  as  a 
■leverage  unbeknown  to  defendant,  such  use 
would  not.  constitute  a  sale  of  liquors  to  be 
nsed  as  a  beverage  within  the  meaning  of 
the  statute" 

The  former  request  was  covered  by  the 
charge: 

"Tbe  meaning  of  the  statute,  drinking 
beer  or  other  intoxicating  liquors  on  the 
premises,  means  the  Immediate  premises 
where  the  liquor  Is  purchased,  and  does  not 
include  an  adjoining  lot  or  lots  over  which 
respondent  has  no  control  whatever. 

"(15)  (I  have  aimed  to  make  that  clear  to 
yon,  that  in  the  last  instruction  it  was  con- 
fined to  the  boundaries  in  tbe  storeroom 
wherein  he  did  business.) 

"Hence  if  tbe  respondent  In  this  case  sold 
beer  in  bis  drug  store  or  liquor,  and  the 
same  was  taken  by  the  purchaser  to  the 
back  lot  adjoining  the  drug  store  and  there 
drank  by  the  purchaser,  it  would  not  in  it- 
self constitute  a  sale  of  liquor  to  be  drunk 
on  the  premises,  and  I  charge  you  that  If 
yon  find  that  there  was  a  vacant  lot  back  of 
respondent's  drug  store,  and  that  liquor  sold 


by  the  respondent  to  purchasers  was  actual- 
ly drunk  on  this  lot  without  the  consent  or 
knowledge  of  the  respondent  In  this  case, 
then  I  charge  you  that  the  drinking  of  such 
liquor  or  beer  upon  said  vacant  lot  would 
not  constitute  a  sale  of  liquor  to  be  drunk 
on  the  premises." 

As  to  the  subject  covered  by  the  latter,  the 
learned  circuit  judge  said:  "The  statute  pro- 
hibits a  druggist  from  selling  any  intoxica- 
ting Ilqnors  to  any  person  or  persons  to  be 
drunk  upon  the  premises.  In  this  case  It  Is 
claimed  that  the  defendant  had  in  bis  drug 
store  several  rooms:  First,  the  front  room, 
where  the  general  stock  of  goods  was  kept; 
then  It  is  claimed  by  them  there  was  a  pre- 
scription case  In  the  room,  somewhere  divid- 
ing it,  or  somewhere;  and  It  Is  for  you  to 
remember  where  it  was;  that  near  by  was 
the  toilet  room,  and  off  from  that  another 
room.  Now,  it  Is  for  you  to  find  whether 
that  was  the  location  and  the  situation  of 
the  premises.  It  is  contended  by  the  people 
that  in  this  back  room  or  rooms  of  the  store 
purchasers  of  beer  and  whisky  would  enter 
and  drink  from  bottles  and  glass;  it  Is  not 
disputed  that  these  rooms  were  all  under 
the  control  and  occupancy  of  defendant  I 
have  reference  now  to  the  rooms  contained 
within  the  four  walls  of  this  store;  It  Is  for 
you  to  remember  what  the  witnesses  testi- 
fied to  In  relation  to  the  rooms  that  were 
there.  If  you  find  purchasers  of  intoxicating 
liquors,  after  they  had  purchased  such  liq- 
uors, did  go  to  this  room  or  jrooms  and  drink 
liquors,  then  defendant  is  chargeable  with 
notice  of  what  was  occurring  there;  he 
could  not  make  such  sales  in  such  manner 
and  permit  them  to  go,  if  you  find  he  did 
permit  them  to  go,  in  the  rear  of  the  store, 
or  deliver  them  goods,  Intoxicating  liquors, 
from  the  ice  box,  at  a  point  in  close  proximi- 
ty to  rooms  and  appliances  or  fixtures  so 
furnished  by  him,  easy  of  access,  where  they 
might  enter  to  drink,  and  avoid  liability  by 
going  to  or  remaining  in  the  front  of  the 
store  where  he  could  not  see  them;  it  is  his 
business  to  know  what  Is  occurring  on  his 
premises." 

This  sufficiently  covered  the  question  un- 
der tbe  proofs  in  the  case. 

Limitation  of  Time  for  Argument 

We  are  of  the  opinion  that  a  limitation  of 
an  hour  on  a  side  was  not  error.  Moreover, 
counsel  did  not  use  that  time,  and  there  was 
therefore  no  injury. 

Improper  Argument 

We  find  no  occasion  for  an  objection  to 
the  argument  made. 

Requests  Refused. 

The  eleventh  request  related  to  "reason- 
able doubt"  It  was  sufficiently  covered  in 
the  charge. 

There  was  no  occasion  for  giving  the  2Sth 


Digitized  by  LjOOQ  IC 


196 


122  NORTHWESTERN  RBPORl'ER. 


(Mlcb. 


request,  while  the  39tb,  40tb,  and  4l8t  are 
covered  by  what  has  been  said. 

The  court  Instructed  the  Jury  that:  "In 
this  case  It  Is  claimed  that  defendant  had  In 
his  drug  store  several  rooms;  that  Is,  that 
there  were  compartments:  First,  a  front 
room,  where  his  general  stock  of  goods  was 
kept;  then  a  prescription  case  dividing  the 
room,  or  in  some  portion  of  the  room  which 
is  for  you  to  remember;  near  by  this  a  toilet 
room,  and  off  from  that  another  room.  Now, 
the  court  does  not  desire  to  instruct  yon 
that  that  is  found  from  the  facts;  it  is  for 
you  to  remember;  I  simply  speak  of  this  in 
that  way  so  that  you  miy  apply  the  evi- 
dence; that  In  this  back  room  or  rooms  of 
the  store  purchasers  of  beer  or  whisky  would 
enter  and  drink  from  bottle  or  glass.  It 
Is  not  disputed  that  these  rooms  were  all 
under  the  control  and  occupancy  of  the  de- 
fendant If  you  find  purchasers  of  intox- 
icating liquors,  after  making  their  purchases, 
did  go  to  these  rooms  and  drink  the  liquor 
purchased,  then  defendant  is  chargeable 
with  notice  of  what  was  occurring  there; 
he  could  not  make  such  sale  In  such  manner 
and  permit  them  to  go  In  the  rear  of  the 
store — that  is  in  the  rear  of  the  store  room; 
I  do  not  mean  outside  of  the  building— or 
deliver  them  from  the  ice  box  at  a  point  in 
close  proximity  to  rooms  and  appliances 
furnished  by  him  where  they  might  enter  to 
drink,  If  you  And  that  he  did  have  such 
rooms  and  appliances  so  furnished  to  drink, 
and  thereby  avoid  liability  by  going  to  or 
remaining  In  the  front  of  his  store  where 
be  could  not  see  them;  it  Is  his  business  to 
know  what  is  occurring  upon  his  own  prem- 
ises; and  I  charge  you  that  if  you  find  that 
during  the  time  alleged  In  the  Information 
any  person  or  persons  on  several  occasions 
did  enter  said  room  or  rooms  and  drluk  in- 
toxicating liquors  so  purchased  of  the  de- 
fendant on  different  occasions,  remember, 
drinking  intoxicating  liquors  so  purchased  of 
defendant,  then  defendant  would  b4  guilty 
of  keeping  a  place  In  violation  of  the  local 
option  law,  and  your  verdict  should  be  guil- 
ty."   There  was  no  error  in  this. 

We  have  endeavored  to  satisfy  ourselves 
that  the  defendant  has  no  substantial  cause 
for  complaint  upon  this  record,  because  It  Is 
a  criminal  case,  although,  for  reasons  hereto- 
fore given,  we  would  have  been  warranted 
in  dismissing  the  appeal  under  our  rules  and 
practice. 

The  Judgment  Is  affirmed. 


DELOR  V.  DONOVAN,  Wayne  Circuit  Judge. 
(Supreme  Court  of  Michigan.  July  15.  1909.) 
1.  Divorce  (S  210*)— Final  Dkcbek— Tempo- 

BART   ALIMONT. 

It  is  within  the  discretion  of  the  trial 
court,  in  an  action  for  divorce,  to  include  in  the 
final  decree  provisions  for  the  temporary  suih 


port  of  the  wife  and  children  during  the  period 
following  the  final  decree,  and  before  compli- 
ance with  its  terms  as  to  permanent  alimony. 
[Ed.  Note.— For  other  cases,  see  Divorce, 
Cent   Dig.   i  610;    Dec.  Dig.   8  210.»] 

2.  Appeal   Airn    Ebbob   (|   873*)— Review — 
SuBSBQUKNT  Oboebs— Temfobaby  Obdeb  ih 

DiVOBOE   DEOBEE. 

That  a  temporary  order  in  divorce  to  se- 
cure the  support  of  the  wife  and  children  fol- 
lowing the  final  decree,  and  before  compliance 
with  its  terms  as  to  permanent  alimony,  is  in- 
corporated in  the  final  decree  does  not  make 
that  provision  reviewable  on  appeal,  and  sub- 
ject to  a  stay  upon  filing  an  appeal  bond,  under 
Pub.  Acts  1907;  p.  4977  No.  340,  i  1,  but  the 
enforcement  of  such  temporary  order  is  with 
the  trial  court  under  Pub.  Acts  1907,  p.  498, 
No.  340,  S  S,  providing  that  the  jurisdiction 
of  the  trial  court  shall  continue  for  all  purposes 
□ot  connected  with  the  hearing  of  the  appeal, 
until  the  jurisdiction  of  the  Supreme  Court  at- 
taches after  the  return  is  filed  in  said  court 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  H  3522,  3523;  Dec.  Dig.  i 
87a*] 

Prohibition  proceeding  by  Joseph  Delor 
against  J.  W.  Donovan,  Wayne  Circuit  Judge. 
Writ  denied. 

Argued  before  BLAIR,  C  J.,  and  HOOK- 
ER, MOORE,  McALVAY,  and  BROOKE,  JJ. 

Charles  S.  Hampton,  for  relator.  Thomas 
Hlslop,  for  respondent 

HOOKER,  J.  The  respondent  sitting  In 
chancery  made  a  final  decree  In  a  divorce 
cause  against  the  defendant  Joseph  Delor. 
The  decree  contained  provisions  regarding 
permanent  alimony.  It  also  provided  that 
defendant  should  pay  for  the  support  of  the 
complainant  and  her  children  the  sum  of  $7 
per  week  until  the  provisions  of  the  decree 
as  to  permanent  alimony  should  be  complied 
with,  and  In  case  of  appeal  $8  per  week.  We 
take  this  statement  of  thn  decree  from  the 
petition  filed  In  this  proceeding ;  no  copy  of 
the  decree  appearing  in  this  record.  The  de- 
cree was  entered  on  January  20,  1909.  De- 
fendant filed  a  claim  of  appeal  on  January 
27,  1009,  and  a  bond  as  required  by  law. 
See  Act  No.  340,  p.  497,  Pub.  Acts  1907.  On 
February  4,  1900,  proceedings  for  contempt 
were  begun  before  the  circuit  court  based  on 
defendant's  failure  to  pay  said  sum  of  |7 
per  week,  whereupon  this  proceeding  was  in- 
stituted for  a  writ  of  prohibition,  to  restrain 
the  court  from  allowing  further  steps  in  the 
contempt  matter. 

In  his  final  decree  the  learned  circuit  Judge 
has  thought  it  advisable  to  include  provi- 
sions of  a  temporary  nature,  to  secure  the 
support  of  the  wife  and  children  during  the 
period  following  the  final  decree,  and  before 
compliance  with  its  terms  as  to  permanent 
alimony.  This  we  think  within  his  power, 
and  the  fact  that  the  temporary  order  was 
Incorporated  in  the  final  decree  does  not 
make  that  provision  reviewable  on  appeal, 
and  subject  to  a  stay,  upon  filing  an  appeal 
bond,  under  section  1,  Act  No.  840,  p.  487, 
Pub.  Acts  1907.    See  Ross  v.  Ross,  47  Mich. 


•For  otbar  ease*  le*  nme  toplo  and  (action  NUMBER  in  Deo.  *  Am.  Digs.  UOT  to  date,  *  Reporter  Indozos 


Digitized  by  LjOOQ  IC 


Hicb.) 


FABBELL  y.  HAZE. 


197 


185.  10  N.  W.  193.  It  Bbould  be  treated  as 
a  temporary  order,  the  enforcement  of  which 
Is  \plth  the  circuit  court,  under  the  provl- 
Blons  of  section  5  of  said  Act  No.  840,  at  least 
mitil  the  Jurisdiction  of  the  Supreme  Court 
shall  have  attached,  which  does  not  occur  In 
SQch  cases  until  the  return  Is  filed  In  said 
ooart     Id. 

The  writ  la  denied. 


FARRELL  T.  HAZE. 
(Sapreme  Court  of  Michigan.     July  6,  1909.) 

1.  TUaL  (§  307*)— DXUBXBATIONS  OT  JUBT— 

Takuto   Pafebb  to   Jdbt   Room— Dibcbb- 

TIOIT  of  CoUBT. 

It  is  within  the  discretion  of  the  trial  court 
whether  to  allow  memoranda,  admissible  in  evi- 
dence to  prove  the  facts  recited  therein,  to  be 
by  the  jury  to  their  room. 


[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Wig.  <t  732-737 ;   Dec.  Dig.  |  307.»] 

2.  Tbiai.  ({  307*)— Deubebations  or  Jubt— 
Takiro  Pafebs  to  Jubt  Room- Dibcbe- 
TiON  or  COUBT. 

Memoranda  received  in  evidence  to  cor- 
roborate the  testimony  of  a  party  were  exhibit- 
ed to  the  jury.  There  was  no  agreement  that 
they  might  be  given  to  the  jury  during  their 
dehberations.  The  Jury  requested  that  the 
memoranda  be  sent  to  them.  On  the  court  re- 
fusing to  do  80,  defendant  requested  that  the 
Jury  be  recalled  and  be  i>ermitted  to  examine 
tiie  memoranda  in  the  jury  box.  Held,  that 
the  refusal  to  permit  the  jury  to  either  talie 
the  memoranda  to  the  jury  room  or  to  lie  recall- 
ed to  examine  them  was  not  an  abuse  of  dis- 
cretion. 

[Ed.  Note. — ^For  other  cases,  see  Trial,  Cent. 
Dig.  Si  732-737;    Dec.  Dig.  g  307.*] 

8.  Tbial,  (g  252*)— Evidence— iNBTBUonoNS. 
Where,  in  an  action  for  malpractice,  based 
on  the  improper  treatment  of  a  Potts  fracture, 
necessitating  the  amputation  of  plaintiff's  leg, 
the  undisputed  evidence  showed  that  the  bones 
of  the  foot  and  ankle  became  diseased,  rendering 
amputation  necessary,  and  the  experts  declined 
to  state  that  it  was  probable  that  the  cause  of 
the  diseased  condition  of  the  bones  was  the 
treatment  of  the  physician,  the  refusal  to  charge 
that  the  jury  could  not  take  the  loss  of  the  foot 
into  consideration  or  hold  the  pliysician  liable 
therefor  was  erroneous. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  Sf  596-612;   Dec.  Dig.  g  252.*] 

4.  Phtsicians  and  SuBOEORa  (g  18*)— Ao- 
TioR  FOB  MALPBAcncE— Evidence. 

In  an  action  for  malpractice  it  is  not 
enough  to  show  a  state  of  facts  equally  con- 
sistent with  unskillfulness  and  negligence  of  the 
physician,  and  with  skillfulness  and  due  care. 
[Ed.  Note. — For  other  cases,  see  Physicians 
and  Surgeons,  Cent  Dig.  g  43;  Dec.  Dig.  g 
18.*] 

B.  Evidence  (g   663*)— Opinion  Bvidbnob— 

HTPOTHEnCAI.  QinCBTIONS. 

A  hypothetical  question  put  to  a  physician 
in  an  action  for  malpractice,  based  on  defend- 
ant's improper  treatment  of  a  Potts  fracture, 
necessitating  the  amputation  of  plaintiff's  leg, 
wiiich  embraces  plaintiflTs  theory  of  conditions 
existing  before  and  at  the  time  the  cast  put  on 
the  limb  by  defendant  was  cut,  conditions  ob- 
servable by  defendant  together  with  a  state- 
ment of  subsequent  developments  and  results 
stated  in  such  sequence  as  to  convey  the  idea 
that  conditions  described  followed  one  on  the 


other,  without  stating  the  length  of  time  be- 
tween the  cutting  of  the  cast  and  the  subse- 
quent discoveries  of  the  condition  of  the  bones 
and  the  amputation  of  the  limb,  and  without 
indicating  the  treatment  piven  the  limb  after 
defendant's  discharge,  is  improper. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.   gg  2369-2374;    Dec.   Dig.  g  553.*] 

6.  Phtbicians  and   Suboeons   (g   18*)— Ac- 
tion FOB  MAifBAOTicE— Evidence. 

Where,  in  an  action  for  malpractice,  based 
on  the  improper  treatment  of  a  Potts  fracture, 
necessitating  the  amputation  of  plaintiff's  leg, 
the  evidence  showed  that  portions  of  the  bones 
were  removed  before  amputation,  and  that  the 
condition  of  the  bones  before  and  at  the  time 
of  the  amputation  indicated  a  continuing  dis- 
integration from  some  cause  long  active  after 
defendant  ceased  to  treat  the  injury,  the  bones 
of  the  amputated  limb  could  not  be  received  as 
an  exhibit 

[Ed.  Note.— For  other  cases,  see  Physicians 
and  Surgeons,  Dec.  Dig.  g  18.*] 

7.  Physicians  and  Suboeons  (g  15*)— Qual- 
ifications—Liabiutt. 

A  physician  and  surgeon  who  does  not  pos- 
sess the  requisite  qualifications  is  not  exempted 
from  liability  for  malpractice  because  his  mis- 
,take  was  caused  by  an  error  of  judgment. 

[Ed.  Note.— For  other  cases,  see  Physicians 
and  Surgeons,  Cent  Dig.  g  32;  Dec.  Dig.  g 
15.*] 

8.  Physicians  and  Suboeonb  (g  18*)— Qual- 
ifications—Evidence— Admissibility. 

The  want  of  requisite  qualifications  of  a 
physician  cannot  be  shown  by  proving  that  he 
was  discharged  by  a  patient,  and  that  another 
physician  hired  changed   the  treatment. 

[Ed.  Note. — For  other  cases,  see  Physicians 
and  Surgeons,  Cent  Dig.  {  41;  Dec.  Dig.  g 
18.*] 

Error  to  Circuit  Court,  Ingham  County; 
Selden  S.  Miner,  Judge. 

Action  by  Thomas  Farrell  against  Harry 
A.  Haze.  There  was  a  judgment  for  plaintiff, 
and  defendant  brings  error.  Reversed,  and 
new  trial  granted. 

Argued  before  McALVAY,  OSTRANDER, 
HOOKER,  MOORE,  and  BROOKE,  JJ. 

Harry  E.  Chase  (McArthur  &  Dnnnebaclte, 
Arthur  J.  Tuttle,  and  Rollln  H.  Person,  of 
counsel),  for  appellant  Jason  E.  Nichols 
(L.  B.  Gardner,  of  counsel),  for  appellee. 

OSTRANDER,  J.  Plaintiff,  on  April  2, 
1907,  at  about  10  o'clock  a.  m.,  sustained  an 
injury  to  his  right  foot,  ankle,  and  leg.  It 
was  what  is  known  as  a  "Potts  fracture." 
He  fell  from  a  wagon  to  and  upon  the  pave- 
ment. There  Is  some  testimony  tending  to 
prove  that  the  wagon  seat  fell  upon  and 
across  the  foot  or  ankle.  The  foot  was  turn- 
ed outward  to  a  position  at  right  angles  to 
the  leg,  and  perhaps  It  formed  with  the 
leg  a  more  acute  angle.  The  skin  was  not 
broken.  In  a  fracture  so  described  the  fibula 
is  broken.  In  this  case  the  tibia  was  also 
broken.  The  extent  to  which  the  surrounding 
tissues  were  injured,  and  whether  or  not  the 
artery  or  arteries  nourishing  the  particular 
portion  of  the  anatomy  was  or  were  rnptur- 
ed  or  otherwise  injured,  cannot  be  accurately 
determined  in  such  a  case  except  by  the  con- 


I  sam*  topio  and  ■•ctlon  NUMBER  in  D«o.  *  Am.  Dl(s.  1907  to  data,  *  Raportw  IndazM 


Digitized  by  VjOOQ  l€ 


198 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


sequences.  He  employed  the  defendant,  a 
physlcikn  and  surgeon,  to  treat  the  Injury. 
Defendaut  attended  him  iintll  April  14th, 
when  he  was  discharged  and  another  surgeon 
was  employed.  The  foot  was  opened  by  still 
other  surgeons  on  July  23d,  at  Detroit,  and 
some  dead  bone  was  removed.  Later,  It  was 
found  to  be  necessary  to  amputate  the  leg, 
and  the  operation  was  performed  August  21, 
1907.  After  reducing  the  fracture,  with  the 
assistance  of  another  surgeon,  the  defendant, 
put  the  injured  member  In  a  plaster  of  parts 
cast.  It  is  the  theory  of  the  plaintiff  that 
the  swelling  of  the  limb  and  foot  which  im- 
mediately ensued,  accompanied  by  pain  and 
by  discoloration  of  the  tissue.  Indicated,  and 
ordinary  professional  slciU  and  Icnowledge,  de- 
manded, an  early  cutting  of  this  cast.  It  is 
alleged  that  it  was  kept  In  place  so  that  the 
leg,  ankle,  and  foot  had  no  opportunity  to 
swell,  and  that  the  circulation  of  blood  in 
the  limb  was  cut  off  and  stopped  until  Sun- 
day, April  7th,  at  which  time  the  leg,  foot, 
and  ankle  had  hecome  dead  and  black,  spoil- 
ed and  ruined.  Later  operations.  Including 
the  amputation  of  the  limb,  are  consequences 
attributed  to  the  strangulation  caused  by  the 
cast.  It  is  the  theory  of  defendant  that  the 
cast  was  cut — opened — on  Wednesday,  April 
3d,  and  was  thereafter  for  some  time  oised  as 
a  cradle  for  the  injured  member,  Into  which 
after  daily  dressing  It  was  returned ;  that  In 
any  erent  the  diseased  condition  of  the  limb, 
present  at  the  time  it  was  amputated,  was 
due — or  was  not  shown  not  to  be  due — to 
the  ortginal  Injury,  aided,  perhaps,  by  the 
treatment  of  the  surgeon  who  immediately 
succeeded  the  defendant  These  theories 
present  the  issues  which  the  pleadings  and 
the  testimony  presented  to  the  court  and 
jury.  If  defendant  cut — opened — the  cast  on 
Wednesday,  he  Is  admittedly  without  fault 
If  he  did  not  cut  it  until  Sunday,  and  if  the 
foot  and  leg  were  then  in  the  condition  de- 
scribed by  plaintiff  and  bis  witnesses,  he  did 
not  exercise  ordinary  professional  skill  and 
judgment,  and  for  the  resulting  injury  be  Is 
liable.  What  the  .  resulting  Injury  was,  is 
matter  of  serious  dispute.  Defendant  did  not 
neglect  his  patient.  The  cast  was  applied 
about  noon  on  Tuesday.  lie  visited  plaintiff 
at  his  bouse  three  times  that  afternoon  and 
evening,  and  after  that  twice  each  day  until 
be  was  discharged. 

There  Is  no  material  difference  in  the  views 
of  the  surgeons  who  gave  testimony  in  this 
case  upon  certain  propositions.  The  use  of 
the  cast  was  proper.  The  longer  it  was  left 
in  place,  if  no  complications  developed,  the 
better.  The  danger  to  be  apprehended  was 
strangulation.  To  aid  observation,  the  toes 
were  not  covered  by  the  cast.  Some  inflam- 
mation of  the  foot  and  ankle  as  a  result  of 
the  Injury  was  to  be  expected;  how  much 
there  would  be,  could  not  be  known.  Wheth- 
er the  cast  should  be  opened,  and  when  it 
should  be  opened,  dejiended  upon  the  presence 
or  absence  of  various  symptoms,  among  them 


the  amount  of  swellins  and  the  discoloration 
of  the  foot.  The  temperature  of  the  body,  the 
pain  experienced,  affect  the  judgment  of  the 
surgeon  inr  this  behalf.  Different  surgeons 
will  act  differently  In  cases  presenting  the 
same  symptoms.  There  Is  great  danger.  In 
case  of  an  Injury  such  as  was  suffered  by  the 
plaintiff,  that  troublesome  complications  will 
result  from  the  tearing  or  lacerating  of  tis- 
sue, the  breaking  of  bones,  and  injuries  to  ar- 
teries. Necrosis  often  results  from  traumatic 
injuries — ^from  the  bruising  of  the  bone.  In 
view  of  the  unanimity  of  opinion  of  experts 
upon  these  subjects,  and  the  frankness  with 
which  defendant  admitted  that  If  he  left 
the  cast  In  position  until  Sunday  and  until 
the  limb  was  In  the  condition  described  by 
plaintiff  and  his  witnesses,  he  had  not  exer- 
cised skill,  we  find  It  unnecessary  to  discuss 
many  of  the  errors  assigned  and  relied  upon 
by  counsel  for  appellant.  Those  which  we 
regard  as  demanding  attention  may  be  dis- 
posed of  under  two  general  heads.  They  are: 
First  those  relating  to  the  time  when  the  cast 
was  removed;  second,  those  relating  to  the 
Injuries  consequent  upon  appellant's  failure. 
If  he  did  fall,  to  earlier  cut  the  cast 

First  Defendant  testiSed  that  he  cut  the 
cast  on  Wednesday,  the  next  day  after  the 
Injury.  He  kept  books  and  employed  a  book- 
keeper. It  was  his  practice  to  make  a  mem- 
orandum of  visits  to  patients  upon  prescrip- 
tions blanks,  and  to  h'and  the  memoranda 
to  his  bookkeeper  for  entry  by  her  into  a 
daybook.  She  also  kept  a  ledger.  The  slips, 
daybook,  and  ledger  were  produced  In  court, 
and  were  offered  and  received  In  evidence 
over  the  objection  that  they  were  all  im- 
material, Incompetent,  and  self-serving.  The 
purpose  in  offering  them  was  not  to  show 
the  state  of  an  account  with  plaintiff,  bat  to 
corroborate  defendant's  testimony  concern- 
ing the  date  of  cutting  the  cast  by  a  memo- 
randum made  by  him  at  the  time.  The  par- 
ticular memorandum,  upon  the  particular 
slip,  was  "4-3,"  meaning  fourth  mouth,  third 
day,  "Tom  Parrell  vt"  meaning  visit  "P- 
m.  and  cutting  cast  $1.50."  Various  memo- 
randa made  under  dates  from  the  5th  to  the 
13th,  inclusive,  contain  charges  for  redress- 
ing the  leg.  These  are  supposed  to  corrobo- 
rate defendant's  testimony  that  the  cast  had 
been  cut,  since  it  is  claimed  there  could  be 
no  redressing  of  the  limb  If  It  was  not  cut 
In  the  argument  to  the  Jury,  It  was  claimed 
on  the  part  of  plaintiff  that  a  comparison  of 
the  slips,  the  books,  and  certain  testimony  of 
defendant  would  and  did  show  that  the  entry 
of  the  charge  made  for  cutting  the  cast  on 
the  day  stated  was  spurious.  Much  time  was 
devoted  in  argument  to  the  memorandum 
slips  and  the  books.  They  appear  to  have 
been  exhibited  and  handed  to  the  Jury,  or  to 
some  of  the  jurymen.  Counsel  for  the  plain- 
tiff in  his  argument  to  the  Jury  said  that  so 
far  as  he  was  concerned  the  books  and  slips 
might  lie  taken  to  the  jury  room.  One  of  de- 
fendant's counsel  said,  "Do  we  understand  It 


Digitized  by  LjOOQ  l€ 


Midi.) 


FARRELL  t.  HAZE. 


199 


Is  agreed  that  the  Jury  may  have  the  books?" 
and  the  reply  was,  "I  will  say,  so  far  as  I 
am  concerned,  I  don't  think  there  was  any 
qaestion    about    my    statement.    •    •    ♦" 
Coanael  for  defendant  said,  "All  right"    The 
jury  having  been  Instructed  and  having  re- 
tired,  the  court  inquired   If  it  was  agreed 
tliat  the  books  and  slips  should  be  taken  to 
the  Jury  room.    The  attorney  of  record  for 
plaintiff  declined  to  consent    Upon  the  claim 
being  made  that  It  had  l>cen  agreed  to,  the 
court  said  he  did  not  understand  there  had 
been   any  such  agreement,  and  that  unless 
there  was  such  an  agreement  he  should  de- 
cline to  give  the  books  to  the  Jury.    Later, 
the  Jury,  through  the  officer  in  charge  of 
them,  requested  that  the  exhibits,  the  day- 
t>ook  and  ledger,  be  sent  to  them.    This  the 
court  refused  to  do.    Counsel  for  defendant 
thereupon  requested  that  the  Jury  be  recalled 
and  be  permitted  to  examine  the  slips  and 
books  in  the  Jury  box.    This  was  refused. 

It  appears  from  the  argument  of  counsel 
for  defendant  that  it  was  understood  there 
was  no  agreement  that  the  slips  and  the 
books  might  be  given  to  the  Jury  In  the  Jury 
room.  The  testimony  of  Dr.  Haze,  the  de- 
fendant concerning  the  slips,  or  memoran- 
da, is:  "There  is  no  handwriting  on  them 
not  mine.  They  are  the  tablets  kept  by  me 
at  the  time  of  my  treatment  of  Mr.  Farrell. 
The  entries  upon  these  tablets  were  made  at 
the  dates  they  bear.  I  am  able  to  say  posi- 
tively that  every  visit  and  all  matters  on 
these  various  tablets  occurred  at  the  time 
as  therein  stated.  I  do  not  think  that  I 
could  state  from  memory  alone,  and  without 
the  tablets.  Just  the  day  when  the  accident 
occurred.  The  girl  found  these  tablets  for 
me  about  the  first  of  this  year,  when  they 
were  talking  about  beginning  suit  against 
me.  It  was  before  the  suit  was  brought.  I 
had  never  seen  them  from  the  time  they  were 
made  until  the  time  slie  found  them  for  me." 
Assuming,  but  not  deciding,  tliat  the  memo- 
randa were  evidence  to  the  Jury  of  the  facts 
contained  in  them  (Halsey  v.  Slnsebaugh,  15 
N.  Y.  485;  Fisher  v.  Kyle,  27  Mich.  454. 
Compare  'Reaver  v.  Bromley,  65  Mich.  212, 
31  N.  W.  839;  Collins  v.  Shaw,  124  Mich.  474, 

83  N.  W.  146 ;  Kalamazoo  Novelty  Co.  v.  Mc- 
Allister, 36  Mich.  327),  it  was  within  the  dis- 
cretion of  the  court  to  allow  them  to  be  tak- 
en to  the  Jury  room.    Tubbs  v.  Insurance  Co., 

84  Mich.  646,  655,  48  N.  W.  296;  Bulen  v. 
Granger,  63  Mich.  311,  29  N.  W.  718.  We  do 
not  find  there  was  an  abuse  of  discretion. 

Second.  Counsel  for  defendant  requested 
the  court  to  Instruct  the  Jury  as  follows: 
"The  question  whether  the  loss  of  the  plain- 
tiff's foot  was  attributable  to  anything  that 
the  plaintiff  claims  the  defendant  did  or 
omitted  to  do  Is  a  scientific  question,  which 
the  Jnry  cannot  determine  for  Itself,  and  can 
only  be  answered  by  an  expert;  and  inas- 
much as  no  expert  or  medical  man  or  surgeon 
has  stated  that  the  loss  of  the  foot  in  his 
opinion  game  from  anything  the  defendant 


did  or  omitted  to  do,  therefore  I  charge  yoa 
that  you  cannot  take  the  loss  of  the  foot  into 
consideration  in  this  case  or  hold  the  defend- 
ant liable  therefor."  This  was  refused,  and 
upon  this  point  the  court  instructed  the  Jury, 
using  varying  methods  of  expression,  that 
they  must  find,  by  a  preponderance  of  the 
evidence,  that  the  amputation  followed  the 
alleged  strangulation  of  the  limb  as  effect 
follows  cause;  that  the  diseased  condition 
which  made  amputation  necessary  was  caus- 
ed: by  the  continued  and  improper  use  of  the 
cast.  The  Jury  was  further  Instructed: 
"Several  experts  have  been  produced  who 
have  given  their  testimony  upon  the  part  of 
the  plaintiff  and  upon  the  part  of  the  defend- 
ant This  case  Is  a  case  in  which  it  was 
necessary  that  experts  should  be  summoned 
for  the  purpose  of  determining  certain  of  the 
facts  in  the  case.  And  where  the  experts 
agree  upon  any  fact  which  Is  necessary— 
that  Is,  upon  expert  evidence — you  should 
take  that  as  true.  But  where  they  disagree, 
then  you  should  determine  from  all  the  evi- 
dence in  the  case  where  the  truth  lies." 

It  is  said  in  the  brief  for  appellee,  "I  am 
challenged  •  •  •  to  point  out  in  the  rec- 
ord any  testimony  that  the  cast  was  to  blame 
for  the  subsequent  amputation,"  and  counsel 
directs  attention  to  particular  testimony  of 
particular  witnesses.  The  testimony  so  re- 
ferred to  is  here  set  out: 

Dr.  La  Ferte:  "Q.  And  if  the  cast  was  not 
removed  until  the  Sunday  morning  following, 
what  would  be  the  result?  A.  Well,  I  sup- 
pose It  would  have  resulted  in  Just  what  we 
feared  it  would  if  It  was  not  opened,  morti- 
fication of  the  limb  probably.  In  other 
words,  a  deadening  of  the  limb.  Very  likely 
this  would  h^ve  to  be  cut  off.  Under  ttte ' 
conditions  you  stated.  It  would  be  Improper 
to  leave  the  cast  on  at  that  time." 

Dr.  Barl)er:  "Q.  If  the  hurt  occurred  on 
Tuesday,  and  on  the  afternoon  of  Tuesday 
there  was  pain  and  a  swelling  of  the  toes, 
and  that  pain  increased  in  intensity  and  the 
toes  kept  swelling,  turning  blue,  and  was  left 
there  in  that  condition  without  opening  until 
Sunday,  when  the  toes  were  practically 
black,  would  it  be  proper  treatment  to  leave 
it  that  length  of  time  in  that  cast  or  form? 
A.  It  would  not  •  •  •  I  would  expect  a 
destructive  inflammation  of  the  tissues  under 
the  cast  •  •  •  The  object  of  padding 
the  leg  as  I  have  described  is  for  the  pro- 
tection of  the  circulation  of  the  blood  and 
equalizing  the  pressure.  The  greatest  dan- 
ger in  applying  these  casts  is  in  the  unyield- 
ing nature  of  the  splint  •  •  •  I  have 
never  heard  of  any  cases  that  were  not  open- 
ed at  all  that  you  did  not  have  trouble." 

Dr.  Shank:  "Q.  Suppose  a  foot  was  placed 
in  a  plaster  of  paris  cast  before  the  injured 
limb  had  time  to  swell  except  to  some  ex- 
tent on  the  inner  malleolus — placed  in  the 
cast  at  alKtut  11  o'clock  or  at  12,  and  in  the 
afternoon  the  patient  experienced  extreme 
pain  and  burning  sensations.  In  his  limb  and 


Digitized  by 


Google 


200 


122  NOBTHWESTEBN  BEPORTEB. 


(Hlcfa. 


foot  covered  by  tbe  cast,  and  the  toes  began 
to  swell,  and  within  the  next  day  or  so  they 
kept  on  swelling  and  turned  purple,  I  want 
to  ask  yoH  If  it  would  be  proper  treatment 
to  Inject  morphine  and  allow  that  cast  to  re- 
main without  being  cut  open?  A.  I  do  not 
think  the  morphine  had  much  to  do  with 
the  question,  but  the  cast  should  be  cut  open 
at  once,  because  it  would  be  perfectly  evi- 
dent that  there  was  a  strangulation  of  the 
returning  circulation,  and  If  the  cast  was  not 
cut  open  the  limb  would  probably  l)ecdme 
ruined  and  spoiled ;  if  there  is  too  great  pres- 
sure with  a  persistent  increase  in  the  swell- 
ing of  the  toes  there  will  be  pain.  Q.  Is  it 
not  well,  in  order  to  avoid  undue  pressure 
upon  the  leg,  to  split  tbe  cast  its  entire  length 
before  it  has  quite  hardened?  A.  It  might 
be  well ;  I  have  never  seen  it  done  in  my  life, 
and  it  Is  not  the  common  practice.  They  are 
always  split  by  competent  physicians  as  soon 
as  the  toes  b^n  to  swell  and  turn  blue  or 
show  evidence  of  strangulation.  Q.  If  the 
patient  was  a  young  man  of  thirty  years  of 
age,  strong,  healthy,  robust  laboring  man, 
working  at  paving  brick  and  the  like,  and  he 
should  have  such  a  hurt  as  I  have  described, 
and  the  limb  be  placed  in  a  plaster  of  parls 
cast  before  the  swelling  other  than  I  have 
described,  the  patient  experiencing  such  pain 
Tuesday  afternoon  that  it  becomes  practical- 
ly unbearable,  the  toes  begin  to  swell  and 
keep  on  swelling  until  they  become  almost 
solid,  and  discolored,  as  some  of  the  wit- 
nesses have  said,  black,  and  tbe  ca^t  be  left 
there  until  the  following  Sunday,  would  that 
be  proper  treatment?    A.  No." 

Dr.  Culver:  "It  would  be  bad  practice  not 
to  open  the  cast  under  those  conditions.  I 
would  expect  serious  results  .to  follow  If  It 
were  not  opened.  It  would  endanger  not 
only  the  limb,  but  the  life,  to  let  that  go  on." 

Dr.  Thorns:  "Q.  It  would  not  be  proper  to 
leave  the  limb  there  until  Sunday  morning, 
would  it?  A.  No,  sir.  Q.  It  would  be  bad 
practice,  would  It?  A.  Yes,  sir.  *  •  •  If 
left  on  that  long,  I  would  expect  trouble." 

The  most,  if  not  all  of  this  testimony  as- 
sumes the  truth  of  certain  hypotheses  stated 
by  counsel.  None  of  the  seven  or  eight  sur- 
geons who  testified  expressed  the  opinion 
that  the  diseased  bones,  the  condition  which 
necessitated  amputation,  resulted  from  the 
use  of  the  cast  On  the  contrary,  such  an 
opinion  is  refused  by  several  of  them  who 
saw  and  who  treated  the  plaintiff  after  de- 
fendant had  been  discharged.  The  concen- 
sus of  opinion,  where  opinion  is  expressed, 
Is  that,  if  the  cast  caused  strangulation  of 
the  limb,  the  eftects  would  be  visible  first  In 
the  soft  tissues.  They  would  be  the  first  to 
break  down. 

Dr.  Barber,  a  witness  for  plaintiff,  who 
claimed  that  he  had  examined  the  bones  of 
the  foot  and  leg  after  amputation,  and  who 
gave  testimony  concerning  the  extent  to 
which  portions  of  the  bones  had  been  re- 
moved, testified:  "Q.  Well,  then,  I  will  refer 


to  tbe  hypothetical  question  I  asked  you  this 
forenoon  as  'A.'  Now,  assuming  tbe  facts  In 
'A'  to  be  true,  that,  as  you  will  remember, 
involved  the  whole  question  of  this  treat- 
ment, and  I  am  inclined  to  think  the  treat- 
ment afterwards  and  the  injury,  etc. —  I 
am  asking  you  now  if  from  those  facts,  and 
the  facts  that  have  been  stated  to  you  here 
in  regard  to  asking  you  questions  regarding 
the  condition  of  this  limb.  If  from  those  facts 
you  can  form  an  opinion  as  to  the  cause  of 
tbe  condition  of  the  tibia  or  shin  bone  Just 
below  the  place  where  It  was  amputated? 
A.  Yes.  Q.  What  caused  that  condition  from 
the  premises  that  I  had  stated  in  this  for- 
mer question?  ♦  ♦  •  A.  There  was  noth- 
ing in  the  conditions  of  the  bone,  or  the  mem- 
brane covering  the  bone  In  the  location  In 
question,  that  any  surgeon  could  state  posi- 
tively what  caused  It.  •  •  •  I  think  It 
was  caused  by  the  injury  and  the  Interfer- 
ence of  the  circulation,  possibly  from  the 
cast,  and  the  absorption  or  Infection  that  pro- 
duces perlosteitls  and  osteomyelitis." 

Dr.  Keane,  a  witness  for  plaintiff,  who, 
with  Dr.  La  Ferte,  operated  upon  plaintiff 
in  Detroit,  said:  "Q.  Assuming  that  state- 
ment of  facts  to  be  true  that  I  have  read  to 
you  In  the  question  put"  (the  manner  in 
which  the  Injury  was  caused  and  the  dislo- 
cation reduced),  "and  supposing  that  in  two 
or  three  days  the  toes  began  to  turn  purple 
and  tbe  pain  Increased,  and  It  continued  up 
until  Sunday  following  the  injury,  and  tbe 
cast  was  opened  up,  swelling  Increased,  and 
after  the  cast  was  removed  the  leg  quickly 
filled  to  a  large  size  with  such  a  pressure  that 
the  injured  person  thought  that  tbe  skin 
would  burst,  after  which  formations  of  wa- 
ter blisters  occurred  upon  the  limb,  and  those 
Into  ulcers  which  necessitated  their  being 
lanced,  what  would  you  attribute  that  condi- 
tion to?  A.  Some  interference  either  of  the 
arterial  or  venous  circulation.  Q.  Would  you 
attribute  It  to  the  cast?  A.  It  would  be  due 
to  Interference  of  tbe  circulation  in  some 
way.  I  could  not  attribute  it  to  the  cast  to 
the  exclusion  of  everything  else,  and  would 
not  do  80.  *  *  *  If  the  cast  should  remain 
on  a  great  length  of  time  and  the  toes  should 
become  purple  and  eventually  black,  it  would 
be  probable  that  mortification  had  set  In,  and 
if  that  condition  was  allowed  to  remain  for 
some  hours  or  a  day  it  would  not  be  possi- 
ble to  save  tbe  toes  at  all.  There  was  no 
mortification  or  gangrenous  condition  In  the 
toes  when  I  saw  them,  and  from  my  observa- 
tion of  the  toes  I  would  say  that  there  had 
never  been  any  gangrene  or  mortification  of 
them.  I  think  if  gangrene  was  present  it 
would  have  continued  and  extended  further; 
there  might  have  been  blackness  due  to  ve- 
nous congestion ;  that  would  not  necessarily 
be  mortification.  If  there  had  ever  been  any 
blackness  of  the  toes  indicating  lack  of  cir- 
culation, no  harm  would  have  been  done  If 
the  circulation  was  restored.    •    •    •    The 


Digitized  by  VjOOQ  l€ 


HldL) 


FARRELL  ▼.  HAZE. 


201 


breaking  of  the  bones  and  tbe  Jamming  of 
them,  if  It  took  place  In  the  foot,  would  be 
likely  to  injure  the  arterial  drcnlatlon  in 
tbat  proximity.  If  tbe  arterial  drcnlation 
was  injured  in  tbe  foot,  it  would  not  get  its 
proper  nutrition,  and  mortification  would  be 
liable  to  Bet  in.  Tbe  parts  of  the  foot  that 
were  injured  In  this  case  would  receive  part 
of  their  supply  from  that  artery ;  it  would 
be  possible  for  the  absorption  of  the  waste 
In  tbe  foot  to  cause  swelling.  We  found  the 
bones  there  quite  badly  diseased ;  they  were 
■oft  and  almost  like  sand;  this  would  indi- 
cate that  they  had  been  diseased  for  a  conple 
of  months;  it  would  be  possible  for  such  a 
state  of  the  tone  to  come  from  the  original 
injury  due  to  mortification  caused  by  inter- 
ference with  some  of  the  arterial  supply. 
*  *  *  Where  an  ankle  Is  dislocated  and  a 
Potts  fracture  takes  place,  the  danger  lies  in 
the  pressure  of  the  fragments  on  the  circula- 
tion—on  tbe  artery.  The  danger  where  a 
cast  is  put  on  lies  in  pressure  upon  the  dx- 
cnlation;  this  is  more  apt  to  be  true  of  a 
a  solid  cast  than  of  a  soft  one.  A  cast  of 
this  kind  becomes  solid  within  half  or  three- 
quarters  of  an  hour.  Sores  are  liable  to  re- 
sult where  there  has  been  undue  pressure  with 
a  plaster  parls  cast.  These  sores  would  ap- 
pear at  those  points  where  undue  pressure 
was  placed.  *  *  *  If  the  posterior  tibial 
artery  was  shut  off,  there  would  still  be 
.  branches  here  from  the  anterior  part  that 
would  go  through  those  small  bones  and  sup- 
ply tbe  leg  to  a  certain  extent,  but  it  would 
not  be  a  full  circulation.  If  one  of  the  larg- 
er arteries  was  cut  off  or  stopped  up  and 
the  other  was  doing  its  best  to  supply  the 
blood,  tbe  effect  of  want  of  nutrition  would 
first  appear  in  the  proximity  of  tbe  artery 
tbat  was  impaired  or  stopped.  The  part 
fartherest  from  the  part  where  it  was  stop- 
ped would  be  apt  to  die  quicker;  it  would 
be  largely  a  matter  of  a  short  time  in  either 
Instance.  If  one  of  those  large  arteries  was 
stopped  up,  cut  off,  or  impaired,  I  would  not 
expect  the  other  artery  to  supply  blood 
enongh  to  take  care  of  the  foot  permanently. 
TIte  posterior  tibial  artery  furnishes  the 
most  of  the  blood  to  the  foot;  that  is,  the 
one  near  where  therjs  was  bad  bone  and  near 
the  internal  malleolus,  where  the  fracture 
of  the  tibia  was.  •  •  •  When  I  cut  the 
foot  off  there  was  gangrene  on  the  heel;  I 
don't  believe  there  was  any  gangrene  there 
when  I  first  saw  the  foot  The  posterior 
tibial  artery  supplies  that  part  of  the  foot 
where  the  gangrene  was.  Of  course,  there 
would  be  little  branches  thrown  off  from  the 
tibial  artery  that  supplies  the  soft  skin  parts. 
In  our  Judgment,  the  gangrene  was  due  to 
a  pressure  and  the  lower  vitality  of  the  tis- 
sues at  that  part;  this  may  happen  by  the 
patient  lying  in  bed  without  any  cast  or 
q)Unt  at  all.  Q.  Now,  you  found  that  gan- 
grene in  August,  and  this  accident  occurred 
in  AprlL    There  was  evidently  a  gradual  de- 


cay or  impairment  going  on  there  for  months, 
wasn't  there?  A.  Tes,  sir.  Q.  If  there  had 
been  bat  one  artery  supplying  that  foot,  if 
the  other  had  been  cut  off  at  the  time  of  the 
accident,  wouldn't  it  have  caused  that  sort  of 
a  gradual  impairment  of  that  foot  for  four 
or  five  months  If  either  one  of  the  arteries 
bad  been  cut  off?  A.  I  think  so.  I  think 
there  was  some  interference  with  the  circu- 
lation which  went  on  longer  after  the  cast 
was  removed.  There  was  some  gradual  morti- 
fication there;  this  might  well  have  happen- 
ed If  one  of  the  arteries  had  been  impaired 
in  its  work;  where  It  once  breaks  down  It 
travels  on  and  goes  Into  the  bone  and  unless 
that  bone  is  taken  out  and  got  rid  of  it  ex- 
tends to  other  bones." 

Dr.  La  Ferte  said:  "If  the  toes  were  swol- 
len full  and  black,  that  would  indicate  that 
mortification  had  set  In.  If  mortification 
has  set  In,  we  try  to  save  them,  yon  under- 
stand. If  the  toes  were  black  and  swollen 
full,  they  could  not  be  saved;  you  might 
save  the  foot  and  cut  off  some  of  the  toes. 
We  would  make  an  effort  to  save  them  if 
there  was  any  part  of  them  the  natural  col- 
or. The  part  that  was  black  would  be  dead 
and  would  have  to  be  cut  off.  That  would 
have  to  be  cut  off  Just  as  soon  as  we  made 
up  our  mind  that  they  could  not  be  saved, 
and  we  would  make  up  our  mind  to  this 
Just  as  soon  as  they  were  black.  Q.  From 
tbe  condition  you  saw  when  you  examin- 
ed that  foot,  could  they  have  been  black 
In  April  and  stayed  there  and  been  in  the 
condition  yon  saw  them,  black  from  strangu- 
lation? A.  Why,  I  don't  think  they  could. 
Not  from  April  to  July.  Q.  Wouldn't  they 
have  been  rotted  off  from  their  own  accord 
before  that,  and  the  man  I>een  dead  if  they 
were  in  that  condition  In  April  and  nothing 
done  with  them?  A.  Well,  they  probably 
would  have  shown  signs  of  demarkatlon 
there,  of  course.  Tbe  toes  when  I  saw  them 
were  about  the  same  color  as  the  foot ;  they 
were  kind  of  doughy  and  swollen,  and  pltten 
on  pressure  some.  They  were  not  gangre- 
nous then,  and  I  don't  think  they  were  black. 
Q.  And  you  say  that  from  that  condition 
that  they  would  not  have  been  black  in 
April?  A.  I  didn't  say  that  It  might  have 
been  black  from  venous  circulation,  return 
of  venous  blood  from  the  toes ;  if  there  was 
venous  blood  above  them,  tbat  thing  is  pos- 
sible. It  might  have  been  mortification  of 
the  parts  over  tbe  toes ;  tbe  cuticle  or  scarf 
skin  may  have  l>een  nndermined  or  blisters. 
I  understand  there  was  some  blisters.  Q. 
There  is  no  testimony  there  was  blisters  on 
top  of  the  toes?  A.  It  doesn't  make  any  dif- 
ference; they  might  have  been  black  at  tbe 
time  that  tbe  bandage  would  be  put  on,  for 
Instance,  and  the  toes  might  swell  and  be- 
come black  and  be  blistered,  and  then  If  you 
remove  the  circulation  soon  it  might  be  done. 
The  cast  is  put  on,  a  cast  of  this  kind,  to 
hold  the  foot  In  shape.    The  use  of  the  cast 


Digitized  by  VjOOQ  l€ 


202 


122  NORTHWESTERN  REPORTER. 


(Ml«*ll. 


Is  good,  well-recognlzed  treatment  It  Is  de- 
sirable to  leave  on  tbe  plaster  parls  cast  un- 
til the  foot  has  got  back  Into  proper  shape 
If  you  can  do  so.  It  Is  a  good  -way  to  leave 
the  toes  out  so  that  the  doctor  can  keep 
watch  of  them  and  tell.  With  an  injury  of 
this  kind  the  injured  party  would  suffer 
pain,  probably  a  good  deal  of  pain.  In  treat- 
ing a  case  of  that  kind,  the  doctor  by  Ills 
experience  watches  from  what  he  can  see  to 
tell  when  the  proper  time  is  to  cut  the  cast 
open.  Sometimes  It  is  not  necessary  to  re- 
move It  at  all;  It  will  go  clear  through 
without  removing.  That  Is  desirable  if  ev- 
erything Is  getting  on  all  right.  With  a 
Potts  fracture  of  this  kind,  with  the  inner 
malleolus  broken  off,  and  the  conditions  as 
I  found  them  to  be,  there  Is  always  danger 
unless  the  foot  is  held  carefully  in  shape 
until  It  has  recovered  to  quite  an  extent,  or 
when  it  Is  healed  It  will  be  out  of  shape. 
That  Is  one  of  the  things  the  surgeon  has  to 
guard  against.  The  swelling  la  this  foot 
might  have  resulted  from  absorption  of  the 
waste  material  In  the  foot  due  to  the  condi- 
tion of  the  bone  resulting  from  the  Injury. 
That  would  not  be  at  all  unlikely  to  be  the 
situation  from  the  condition  that  you  de- 
scribe— that  Is,  an  Injury  of  the  artery  or 
cutting  off  of  the  blood  supply  through  that 
portion  of  the  tibia — the  foot  would  be  likely 
to  swell  from  such  an  Injury  without  a  cast 
At  the  time  of  the  operation  by  Dr.  Keane 
there  was  a  good  deal  of  dead  bone  removed 
from  the  ankle,  so  much  In  fact  we  didn't 
get  it  all,  and  I  told  Dr.  Keane  that  it  would 
have  been  a  good  plan  to  cut  it  off,  and  he 
told  me  that  the  people  would  not  consent 
to  It;  that  the  man  said  he  would  rather 
die  than  have  his  foot  cut  off,  but  later  on 
be  finally  consented  to  the  operation.  The 
thing  was  a  mass  of  dead  bone  as  I  remem- 
ber It,  and  a  great  deal  of  swelling  and  In- 
filtration of  the  soft  parts,  and  we  removed 
a  part  of  the  astragalus,  some  of  the  scaph- 
oid, and  this  Internal  cuneiform  bone  as 
near  as  I  can  get  at  It.  It  seems  to  me  the 
astragalus  was  tipped  over  and  we  took  part 
of  that  out  I  think  the  part  of  the  Internal 
malleolus  which  was  removed  was  the  part 
that  had  been  broken  off  by  the  Injury.  Evi- 
dently It  had  not  united,  but  I  am  not  per- 
fectly certain.  •  •  •  Strangulation  of  the 
venous  blood  would  cause  mortification;  it 
would  depend  upon  the  length  of  time  It  had 
been  obstructed.  I  do  not  know  as  it  would 
depend  very  much  on  his  health.  The  blood 
Is  sent  from  the  heart  to  the  body;  after 
coming  from  the  lungs  It  becomes  red  blood ; 
coming  from  the  lungs  It  goes  Into  a  large 
vessel  In  the  abdomen,  and  then  gets  down 
Into  the  thigh,  and  when  It  gets  down  Just 
below  the  knee  it  divides  Into  the  anterior 
tibial  and  postibtal  artery;  it  goes  back 
through  two  sets  of  veins,  a  superficial  set, 
which  are  very  numerous,  and  the  deep  set, 
which  accompanies  the  tibial  arteries.    The 


veins  would  be  more  sensitive  to  the  pres- 
sure like  a  plaster  parls  cast  than  the  arter- 
ies. What  would  obstruct  the  circulation  of 
the  blood  on  its  return  might  not  obstruct  the 
circulation  of  the  blood  going  to  tho  foot, 
because  the  heart  propels  the  blood  through 
the  arteries,  and  they  are  well  covered  by 
muscles  and  so  on.  Q.  Now,  assuming  the 
statement  of  facts  that  I  have  put  Into  the 
hypothetical  question  to  you  to  be  true,  and 
supposing  that  on  Tuesday,  the  day  he  was 
Injured,  the  doctor  came  up  there  about  2 
or  3  o'clock  in  the  afternoon  and  looked  at 
the  foot  and  administered  an  opiate,  and  the 
toes  continued  to  swell,  and  two  or  three 
days  after  that  they  begun  to  turn  purple, 
and  on  Sunday  morning  following  this  they 
looked  black  and  dark,  what  would  you  at- 
tribute that  condition  to?  A.  To  an  Inter- 
ference with  the  return  circulation.  Q.  And 
would  you  or  not  to  the  cast?  A.  Well,  if 
there  was  nothing  else  that  would  Interfere 
with  the  return  circulation.  It  was  the  cast, 
I  presume.  From  the  examination  that  I 
made  I  could  not  determine  whether  the 
posterior  tibial  artery  was  blocked  or  obstruct- 
ed. I  did  not  investigate  that  part  at  all.  A 
Potts  fracture  Is  a  quite  common  fracture.  A 
simple  Potts  fracture  is  not  considered  very 
dangerous.  A  compound  Potts  fracture — that 
Is,  a  fracture  that  protrudes  through  the 
flesh  and  skin — is  a  serious  matter.  I  am  not 
certain  that  I  saw  any  evidence  of  a  com- 
pound fracture.  I  don't  think  there  was.  A 
Potts  fracture  Is  a  fracture  of  the  little 
bone  In  the  ankle  outside  the  leg,  and  It  is 
by  turning  the  foot  over'  that  sometimes 
breaks  the  lower  part  of  the  tibia,  and  some- 
times not  My  recollection  Is  that  In  this 
case  the  lower  part  of  the  tibia  was  broken. 
We  would  call  this  a  simple  Potts  fracture; 
possibly  we  would  call  It  complicated.  •  •  • 
From  my  examination  It  Is  my  recollection 
that  this  was  a  complicated  fracture,  and 
not  a  simple  one.  With  the  breaking  of  the 
internal  malleolus  It  Is  complicated.  This 
makes  It  worse,  as  there  Is  a  tearing  fre- 
quently of  the  ligaments  here.  A  complicated 
fracture  Is  not  nectosarlly  attended  with  an 
Injury  to  the  vessel  and  the  softer  parts.  It 
Is  likely,  perhaps,  to  be- so  attended." 

Dr.  Tyler,  who  succeeded  Dr.  Haze,  said: 
"At  the  time  I  was  called  the  foot  was  swol- 
len about  as  full  as  It  could  up  to  the  toes 
from  the  ankle  up  the  leg.  There  was 
one  sore  around  the  ankle  Joint  some  gen- 
eral sore  condition  over  the  Inner  part  of 
the  Instep  and  down  along  the  hollow  of  the 
foot  here,  quite  a  large  sore  Just  at  the 
base  of  the  toes  at  the  ball  of  the  foot,  a 
sore  on  the  bottom  and  back  of  the  heel,  a 
long  sore  up  and  down  the  outer  side  of  the 
foot  here,  and  on  the  shin  bone  up  about 
here  In  this  locality.  On  the  outer  side  of 
the  foot  extending  along  the  metatarsal  bone 
was  a  long  sore  about  three  or  three  and  a 
half  inches  long  and  possibly  an  Inch  wide. 


Digitized  by 


L-oogle 


Mich.) 


FARRELL  v.  HAZE. 


203 


The  surface  was  black  and  tough,  thick, 
hard  leathery  sabstanceB  on  the  outside;  the 
border  adhered  firmly  to  the  healthier  flesh 
along  the  outside.  The  skin  was  not  broken 
in  any  way.  I  did  not  do  anything  especial- 
ly -with  that  until  the  edge  of  this  unhealthy 
tissue  began  to  let  loose.  I  treated  him 
somewhere  near  three  months  before  tbey 
went  to  Detroit.  The  sore  that  I  described 
commenced  to  loosen  up  nearly  two  weeks 
after  I  commenced  to  treat  him.  I  took  it 
away  in  pieces.  The  outer  part  seemed  a 
bard  substance  like  leather,  and  when  that 
came  away  the  deeper  tissue  was  a  yellow, 
softer  substance.  When  I  got  down  as  far 
as  that  went  I  found  healthy  flesh.  The 
substance  dipped  down  Into  the  edge  of  the 
foot;  when  it  was  finally  cleaned  out  the 
hole  that  was  left  was  all  healthy  flesh 
around  it  Wliat  we  call  g^nulatlon  form- 
ed to  heal  it,  and  it  healed  up.  The  sore  on 
the  back  of  the  heel  was  practically  the 
same  as  I  have  Just  described  on  the  side  of 
the  foot,  simply  a  different  location;  I  re- 
moved that  This  was  somewhere  two  inch- 
es across,  and  possibly  three-quarters  of  an 
Inch  deep.  The  sore  on  the  outer  side  of  the 
foot  was  about  the  same  depth.  When  I 
examined  the  limb  on  April  13th,  there  was 
some  swelling  up  more  than  halfway  to  the 
knee.  The  condition  of  the  tibia  or  shin 
bone  was  an  open  sore;  there  was  no  black 
substance  on  It,  simply  an  open,  raw  sore; 
It  healed  up  and  broke  out  once  after  that; 
the  side  of  the  foot  entirely  healed,  as  I  re- 
member It  The  inner  side  of  the  foot  was 
an  open,  raw  sore  over  the  ankle  bone;  1 
treated  It  with  poultices  and  some  antisep- 
tic dressing  and  washes.  The  swelling  grad- 
ually left  the  upper  part  of  the  foot  that  was 
swollen  full  clear  up  to  the  toes.  In  the 
course  of  a  week  and  a  half  or  two  weeks 
the  swelling  was  out  of  the  upper  part  of 
the  foot,  80  it  was  merely  normal  from  the 
instep  up  here.  So  far  as  the  sore  of  the 
Bide  was  concerned,  there  was  not  yery" 
much  swelling  at  that  part  of  the  foot.  The 
swelling  went  out  of  the  Instep;  the  swell- 
ing on  the  outer  side  of  the  ankle  continued 
until  he  went  to  Detroit;  the  swelling  on 
this  side  was  practically  gone,  and  the  foot 
was  healed.  The  heel  was  practically  all 
healed,  the  outer  side  was  all  healed,  pos- 
sibly a  hair's  breadth  was  not  healed  in  yet. 
The  sore  at  the  inner  malleolus  nearly  closed 
once,  but  later  it  seemed  to  open  or  slough- 
ed a  little  bit  and  opened  up  again;  after 
that  it  never  closed.  The  Inner  ankle  bone 
was  diseased;  I  discovered  there  was  dead 
bone  there,  and  as  soon  as  I  found  that  I 
told  Mr.  Farrell  It  would  have  to  come  out 
before  the  ankle  would  heal;  I  discovered 
this  the  fore  part  of  July — I  don't  remember 
exactly  wliat  time." 

Dr.  Shank,  called  for  defendant,  testified: 
"I  saw  him  on  the  13th  day  of  April,  1907. 
Dr.  Haze  asked  me  to  go  in  consultation 
with  Urn,  and  1  did  so.    I  saw  plaintiff  at 


his  residence  a  little  before  noon.  Dr.  Haze, 
plaintiff's  sisters  and  mother,  were  In  the 
room  at  the  time;  if  there  were  others,  1 
cannot  remember  It.  We  did  not  have  much 
conversation  there  until  after  he  had  taken 
the  leg  out  of  the  cast  and  undone  it;  he 
had  told  me  about  the  case  going  up.  He 
lifted  the  limb  out  of  the  cast,  undid  the 
covering,  and  showed  me  the  limb.  The 
cast  had  been  cut  from  the  top  to  the  bot- 
tom, and  bad  a  bandage  loosely  turned 
around  it.  It  looked  as  though  the  circula- 
tion of  the  blood  was  very  sluggish,  and  I 
immediately  began  to  examine  the  foot  my- 
self to  determine  if  I  could  where  and  what 
was  the  cause  of  the  obstruction  to  the  cir- 
culation. I  felt  of  the  artery  that  goes  down 
over  the  metatarsal  bones  on  top  of  the 
foot — ^the  lower  extremity  of  the  anterior 
tibial,  the  artery  that  supplies  the  toes — and 
I  could  get  pulsation  in  that  as  you  can  in 
the  wrist,  but  not  so  strong.  Then  I  went 
down  back  at  the  lower  angle  of  the  inner 
malleolus  deep  and  hard,  and  I  could  not 
find  any;  there  was  no  pulsation  in  that  ar- 
tery. I  immediately  understood  then,  so  far 
as  I  could  comprehend  the  situation,  why  the 
foot  had  that  peculiar  appearance.  It  was 
not  getting  a  sufficient  amount  of  blood,  and 
I  said  to  Dr.  Haze  that  I  thought  the  foot 
was  in  a  dangerous  condition,  and  that.  If 
there  conld  not  be  some  means  of  instituting 
a  re-establishment  of  the  circulation  in  that 
foot,  I  did  not  think  It  would  live.  Then  I 
examined  his  heart,  and  found  that  decidedly 
weak;  and  we  talked  it  over,  and  I  recom- 
mended a  heart  tonic  to  give  more  force  to 
the  blood.  That  is  all  the  conversation  that 
I  can  recall  there.  The  foot  and  leg  were 
swollen  and  had  a  peculiar  reddish  condi- 
tion, not  a  bright  red,  but  a  sort  of  dusky 
red.  And  it  was  swollen  quite  considerably. 
And  that  Is  another  thing  that  made  me 
think  his  artery  was  at  fault,  because  it 
was  the  parts  of  the  foot  that  are  supplied 
by  his  artery  that  showed  the  dark  color. 
On  the  outside  of  the  foot,  along  very  close 
to  the  back  of  the  little  toe,  running  back 
there,  was  a  dark  colored  spot.  I  cannot 
remember  the  size  of  it  now,  but  it  was 
quite  a  considerable  sized  spot,  perhaps  as 
big  as  my  index  finger  all  together,  and 
there  was  some  more  discoloration.  What 
I  mean  by  discoloration  is  a  darkening  of 
the  skin  around  the  inner  malleolus,  in  front 
and  beneath  the  ankle  bone.  Then  there  bad 
been  some  breaking  of  the  skin  Just  in  front 
of  the  ankle,  and  those  spots  with  the  un- 
comfortable appearance  of  the  foot  were  all 
that  I  noticed.  The  toes  and  the  back  part 
of  the  foot  were  the  best  appearing  by  all 
means.  By  the  back  of  the  foot  I  mean  what 
you  call  the  top  of  the  foot,  as  on  the  hand 
you  call  It  the  back  of  the  hand.  That  had 
a  most  healthful  appearance,  and  there  was 
no  discoloration  of  the  toes  or  anything  of 
the  sort  at  the  time  I  saw  it,  not  so  much 
even  as  there  was  in  some  other  parts  in 


Digitized  by 


L-oogle 


204 


122  NORTHWESTERN  REPORTER. 


(MIcH. 


the  foot  Q.  Explain  what  would  cause  tbe 
front  of  the  foot  to  look  natural  and  get  In 
the  condition  you  have  described,  and  the 
other  portions  of  the  foot  have  the  nasty 
appearance  that  you  have  described.  A.  Tbe 
.  way  I  accounted  for  It  was  that  this  artery 
on  top  of  the  foot  was  doing  some  work, 
taking  some  blood  to  the  foot,  and  tbe  parts 
of  the  foot  that  was  supplied  by  that  artery 
were  in  much  better  condition  than  tbe 
parts  of  the  foot  supplied  by  tbe  posterior 
tibial  that  I  could  not  find.  Therefore  I  at- 
tributed the  better  condition  of  the  top  of 
the  foot  to  the  fact  that  It  was  getting  more 
nourishment  The  place  at  the  front  of  the 
foot  that  I  have  described  was  right  in 
front  of  the  ankle  Joint" 

It  was  one  of  the  undisputed  facts  in  the 
case  that  the  bones  in  the  foot  and  ankle  be- 
came diseased,  and  that  this  condition  ren- 
dered amputation  necessary.  What  caused 
the  bones  to  become  diseased?  No  one  as- 
sumed that  the  known'  facts  which  were  be- 
fore tue  witnesses  and  the  Jury  led  to  any 
certain  conclusion.  Counsel  did  not  and  do 
not  make  such  an  assumption.  What  was  tbe 
probable  cause  of  tbe  diseased  condition  of 
the  bones?  This  Is  the  precise  question  to  be 
answered.  Plaintiff  has  proceeded  upon  the 
theory  that  tbe  premises  from  which  the 
answer  of  the  Jury  to  this  question  must  be 
given  embrace  the  opinions  of  persons  having 
extra  knowledge.  His  contention  }s  that  It  Is 
more  probable  tliat  the  cause  was  the  treat- 
ment received  from  defendant  The  opinions 
of  those  having  extra  knowledge  do  not  sup- 
port this  contention.  It  Is  not  enough  to 
show  a  state  of  facts  equally  consistent  with 
unsklllfulness  and  negligence  and  with  skill- 
fulness  and  due  care.  Pelky  v.  Palmer,  109 
Mich.  661,  665,  67  N.  W.  561.  Tbe  opinions 
of  the  experts  called  by  plaintiff  rest  upon 
observed  conditions,  none  of  them  disputed, 
upon  an  Injury  and  course  of  treatment  un- 
observed by  them,  but  the  details  of  which 
were  stated  to  them  In  accordance  with  tbe 
theory  and  the  testimony  of  tbe  plaintiff. 
They  decline  to  express  tbe  opinion  that  It  Is 
more  probable  that  the  cause  of  the  diseased 
condition  of  the  bones  was  the  treatment  of 
defendant.  They  do  not  disagree  with  the 
expert  witnesses  called  by  defendant  We  are 
of  opinion  tl^at  the  preferred  request  should 
have  been  given. 

As  tbe  case  must  go  down  for  a  new  trial, 
it  Is  proper  to  briefly,  notice  some  errors  as- 
signed upon  the  conduct  of  the  trial.  The 
hypothetical  question  put  to  Dr.  Barber  em- 
braced not  only  plaintiff's  theory  of  condi- 
tions existing  before  and  at  the  time  tbe  cast 
was  cut  conditions  observable  by  defendant 
and  presumably  affecting  bis  Judgment,  but  a 
statement  of  subsequent  developments  and 
results.  His  opinion  was  asked  for  in  these 
words:  "What  would  you  say,  doctor,  as  to 
whether  the  treatment  I  have  described  in 
caring  for  said  leg,  ankle,  and  foot  up  to  tbe 
time  said  cast  was  opened  was  proper?"    The 


various  hypotheses  are  stated  in  such  se- 
quence as  to  convey  the  Idea  that  conditions 
described  followed  one  upon  the  other.  Tbe 
length  of  time  elapsing  betn-een  the  cutting 
of  the  cast  and  the  subsequent  discoveries  of 
the  real  condition  of  the  'bones  was  not  state<l. 
nor  the  time  elapsing  between  the  cutting  of 
the  cast  and  the  amputation  of  the  limb. 
Nothing  wds  said  concerning  the  treatment 
given  the  limb  after  defendant  was  discbars- 
ed.  Opinions  of  experts  are  supposed  to  be 
based  upon  hypotheses  stated  by  counsel. 
Their  value  depends  upon  the  truth  of  tbe 
hyiMtheses  stated.  Tbe  answer  to  this  quea- 
tloa  was  without  any  value  to  tbe  Jury  in 
determining  the  question  of  defendant's  re- 
sponsibility. 

As  the  record  is  understood,  tbe  plaintUT 
produced  in  court  but  under  covering,  what 
were  stated  to  be  the  bones  of  the  amputated 
limb,  and  proposed  to  exhibit  them.  There 
was  considerable  discussion,  in  the  presence 
of  the  Jury,  concerning  the  right  to  exhibit 
the  bones  to  witnesses  and  the  Jury,  and  tbe 
objection  to  their  Introduction  In  evidence 
was  sustained.  It  Is  said  in  the  brief  for 
appellant  that  counsel  for  plaintiff  were  en- 
abled to  parade  tbe  dismembered  limb  in  the 
presence  of  tbe  Jury  and  to  ask  various  in- 
competent and  Irrelevant  questions  with  re- 
spect to  it  It  is  contended  that  the  effect  of 
what  was  said  and  done  was  prejudicial  to 
defendant  As  has  been  stated,  we  do  not 
understand  that  the  bones  were  exhibited  to 
tbe  Jury,  and  do  understand  they  remained  in 
the  covering  or  envelope  In  which  they  were 
produced.  We  are  of  opinion  that  they 
should  not  have  been  produced  or  offered  In 
evidence.  It  Is  conceivable  that  if  they 
were  In  the  same  condition  tbey  were  after 
the  Injury,  and  while  defendant  was  treating 
the  limb,  the  extent  and  nature  of  the  various 
fractures  produced  by  the  Injury  being  in 
question,  their  examination  and  perhaps  their 
production  In  court  would  have  been  of  value. 
But  plaintiff  had  proved  that  various  por- 
tions of  the  bones  were  removed  before  tbe 
amputation  took  place.  He  had  proved  that 
their  condition  before  and  at  tbe  time  the 
limb  was  amputated  indicated  a  gradual  and 
continuing  disintegration  of  the  bones  from 
some  cause  which  was  active  long  after  the 
defendant  ceased  to  treat  the  injury.  It 
could  not  be  apprehended  that  the  Jury  would 
be  enlightened  or  Instructed  by  an. examina- 
tion of  the  remains  by  themselves  or  by  wit- 
nesses in  their  presence.  It  is  often  supposed, 
and  in  many  cases  it  Is  probably  true,  that 
a  party  to  ligltation  Is  prejudiced  in  Jury 
trials  by  making  and  insisting  upon  prop- 
er objections  to  tbe  introduction  of  evidence. 
The  point  is  not  likely  to  be  presented  upon 
a  new  trial. 

Dr.  Shank,  a  witness  produced  by  defend- 
ant testified  that  defendant  possessed  tbe 
skill  of  the  average  surgeon.  On  cross-exam- 
ination be  stated  In  answer  to  interrogatories 
that  be  had  heard  his  aldll  and  his  own 


Digitized  by  VjOOQ  l€ 


Mich.) 


HARRISON  T.  GREEN. 


205 


(wItnesB')  Bklll  questioned.  His  examination 
then  proceeded  as  foUowa:  "Q.  Did  you 
know^  of  his  treating  the  Johns  girl  for  a 
broken  limb  in  which  you  were  called  as 
counsel,  Uving  on  Hillsdale  street?  A.  I  was 
called  in  as  counsel  by  Dr.  Haze  to  see  a 
young  lady  up  there  who  bad  a  broken  leg. 
Q.  Did  yon  know  of  his  treating  a  broken  leg 
for  Salspaugh?  A.  No.  Q.  Did  you  know  of 
Us  treating  John  Bohnet?  A.  Yes,  sir.  Q. 
Did  you  Iinow  tbat  Dr.  Nancrede  from  Ann 
Artor  was  called?  A.  Yes,  sir.  Q.  Did  you 
know  tbat  Dr.  Hase  ^as  discharged  at  once 
and  the  treatment  entirely  changed?  (Object- 
ed to  by  counsel  for  defendant,  and  objection 
sustained.  And  thereupon  counsel  for  de- 
fendant took  exception  to  the  asking  of  the 
question  as  prejudicial  before  the  jury.)  Q. 
There  is  but  one  Nancrede  in  this  state,  is 
there,  to  your  knowledge?  A.  But  one.  A 
surgeon  In  the  medical  department  of  the 
University  of  Michigan."  One  who  is  not 
possessed  of  the  requisite  quallflcatlons  of  a 
physician  and  surgeon  cannot  be  exempted 
from  liability  on  the  ground  tliat  his  mis- 
take was  caused  by  an  error  of  judgment. 
But  want  of  requisite  quallflcatlons  is  not 
shown  by  proving  that  he  was  discharged  by 
a  patient  and  another  physician  hired  who 
changed  the  treatment.  So  much  is  obvious. 
We  can  perceive  no  purpose  in  asking  these 
questions,  except  the  one  of  producing  by  in- 
competent means  and  without  tendering  the 
necessary  issue  the  impression  tbat  defendant 
was  lacking  in  professional  skill  because  he 
had  failed  in  other  cases  to  satisfy  his  pa- 
tients and  the  physician  who  succeeded  him. 
The  judgment  is  reversed,  and  a  new  trial 
granted. 


HARRISON  T.   ORBEN. 
(Supreme  Court  of  Michigan.    July  16,  1909.) 
1.  Tbiai.  (f  41*)— Exclusion  of  Witnesses 

TBOIf    COITBTBOOM— DiSCBETtON    OF    COUBT. 

The  exclusion  of  witnesses  from  the  court- 
toom  dnriog  trial  rests  in  the  discretion  of  the 
•court. 

[Ed.  Note.— For  other  cases,  gee  Trial,  Cent. 
Dig.  U  101-105;    Dec  Dig.  i  41.»] 

Z  Evidence  (|  359*)  —  Doctjmentabt  Evi- 
dence—PHOToasAPHa. 

In  an  action  for  personal  injaries  sustain- 
ed in  the  operation  of  a  meat  chopping  machine, 
there  was  no  error  in  admitting  photographs 
taken  with  two  witnesses  for  defendant  stand- 
ing in  the  position  in  which  they  testified  they 
stood  at  the  time  of  the  accident,  and  with 
plaintiff  standing  at  the  machine  where  the 
evidence  for  defendant  placed  him. 

[Ed.    Note. — For   other   cases,    see    Evidence, 
Cent  Dig.  U  1509-1512;    Dec.  Dig.  §  359.*] 

3.  TBIAL    (S    193*)  —  iNBTBUOnONS— iNVAOINO 

Pbovince  OF  JuBT— Opinion  as  to  Evi- 
dence. 

In  a  case  wherein  it  was  urged  that  the 
judge  clearly  indicated  in  the  charge  his  dis- 
belief in  plaintiff's  evidence,  and  that  it  was 
imDossible  for  defendant's  witnesses  to  be  mis- 
taken, and  impressed  on  the  jury  his  own  opin- 


ion of  the  evidence,  hM  that,  while  the  charge 
might  be  subject  to  criticism,  it  did  not  con- 
tain prejudicial  error  under  the  circumstances. 
[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  H  436-438;   Dec.  Dig.  i  193.*] 

Error  to  Circuit  Ourt,  Oaldand  County; 
George  W.  Smith,  Judge. 

Action  by  William  Harrison,  by  next  friend, 
against  Geralds  T.  Green.  There  was  a  judg- 
ment for  defendant,  and  plaintiff  brings  er- 
ror.   Affirmed. 

Defendant  Is  the  owner  of  a  packing  house 
In  the  city  of  Oxford,  in  which  there  was 
installed  a  p^wer  meat  chopping  macliine, 
driven  by  steam  and  operated  by  means  of 
a  belt  running  over  loose  and  tight  pulleys, 
governed  by  a  hand  lever,  situated  at  or  near 
the  chopper.  The  power  can  also  be  turned 
off  by  means  of  a  valve  in  the  steam  pipe 
situated  quite  bandy  to  the  machine.  The 
chopper  consists  of  a  hopper,  and  attached 
thereto  and  standing  at  a  right  angle  at  one 
side  is  a  cylinder  in  which  Is  inclosed  a  steel 
auger,  revolving  at  a  speed  of  from  200  to 
300  revolutions  per  minute  when  running, 
which  drives  the  meat  thrown  into  the  hop- 
per through  holes  In  steel  plates,  attached  to 
the  front  of  the  cylinder  by  means  of  a  metal 
cap,  against  a  revolving  chopping  knife.  These 
steel  plates  have  different  sized  holes,  and, 
in  order  to  get  satisfactory  results,  it  be- 
comes necessary  to  change  the  plates  In  the 
machine  as.  the  meat  is  desired  chopped  finer. 
After  meat  has  been  run  through  once,  these 
plates  are  apt  to  get  stuck  tight,  and  It  is 
impossible  to  get  the  plates  out  without  loos- 
ening them  from  the  inside.  Plaintiff  was 
working  for  defendant  as  a  butcher,  and  one 
of  his  many  duties  was  to  operate  this  meat 
chopper  whenever  called  upon  by  defendant 
to  do  so.  The  chopping  machine  stands  in 
the  center  of  the  room  with  the  cylinder  part 
pointing  toward  the  North.  On  February  22, 
1908,  defendant  came  to  the  packing  house 
with  a  quantity  of  hamburger  steak,  and  re- 
quested plaintiff  to  run  It  through  the  chop- 
ping machine.  It  was  necessary  to  run  the 
meat  through  twice.  He  had  run  it  through 
once,  and  claims  that,  while  he  was  fixing 
the  machine  preparatory  to  running  the  meat 
through  the  second  time,  the  accident  oc- 
curred. 

Plaintiff  In  his  testimony  described  the  sit- 
uation and  manner  of  the  accident  as  follows: 
"The  machine  stands  in  the  middle  of  the 
floor  against  a  wall  so  that  you  cannot  get 
around  it  The  belt  runs  behind  the  machine 
against  the  wall  toward  the  celling.  In  or- 
der to  get  around  the  machine,  one  must  pass 
in  front  of  it  The  lever  is  on  the  right- 
hand  side  of  the  machine  looking  at  it  from 
the  front  When  I  chop  meat,  I  stand  on 
the  left  side  of  it,  so  does  the  tub  having 
the  meat,  toward  the  l)ack.  I  stand  on  the 
left-hand  in  front  of  the  tub  and  feed  the  ma- 
chine with  both  hands.    In  order  to  turn  the 


•For  other  ewes  see  same  topic  and  section  NVMBEB  in  Dec.  ft  Am.  Digs.  UOt  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQIC 


206 


122  NORTHWESTERN  REPORTER. 


(MIcb. 


power  off  the  machine,  I  reacb  my  band  over 
to  the  left  above  the  machine,  and  turn  off 
the  vahre  which  comes  through  the  wall. 
This  yalve  turns  off  the  steam.  The  belt 
keeps  running  after  you  have  turned  the 
steam  off.  The  belt  can  be  shored  from  one 
pulley  to  another  by  the  lever.  The  lever  Is 
on  the  right  side  of  the  machine.  In  order 
to  turn  the  lever  off,  I  would  have  to  walk 
around  the  machine  to  the  front  of  it.  I 
cannot  turn  off  the  lever  in  any  other  way. 
When  I  was  chopping  the  hamburg  steak, 
Mr.  Green  was  outside  somewhere.  He  came 
in  as  I  stepped  over  to  slow  -the  machine 
down.  I  was  going  to  slow  It  down  with  the 
valvR  He  walked  up  and  pulled  the  lever 
for  me.  He  didn't  touch  the  valve.  He  pull- 
ed the  lever.  That  would  throw  the  belt 
over  on  the  other  pulley.  He  was  on  the 
right-hand  side  of  the  machne.  I  walked 
over  to  the  left-band  side  to  slow  the  ma- 
chine. After  the  machine  stopped,  I  bad  the 
cap  off  from  the  front  of  the  machine,  and 
I  tried  to  pull  the  knives  out,  which  would 
not  come  for  the  meat  stuck  around  them, 
and  I  put  my  hand  in  the  machine  to  loosen 
the  knives  up  and  shove  that  auger  part  out, 
and,  when  I  put  my  hand  in,  Mr.  Green  pull- 
ed the  lever.  He  and  I  were  on  the  same 
side  of  the  machine  at  that  time.  He  was 
standing  toward  the  wall,  and  I  was  In  front 
of  the  machine.  I  was  in  front  of  the  ma- 
chine, then  Green,  and  then  the  wall.  I  saw 
him  turn  the  lever.  •  •  •  I  took  the  cap 
off  the  front  after  I  had  this  machine  slowed 
down.  Mr.  Green  had  stopped  the  machine 
for  me,  and  I  took  the  cap  off  from  the 
front  and  took  the  knives  off,  and  I  put  my 
hand  In  the  machine  to  loosen  the  knives, 
and  he  pulled  the  lever  again.  I  saw  him 
pull  the  lever.  •  •  •  While  I  was  putting 
my  hand  In,  Mr.  Green  pulled  the  lever,  and 
I  was  not  aware  of  It.  •  *  •  He  was 
standing  by  the  lever  when  I  put  my  hand  in. 
He  was  alongsiue  of  me." 

The  claim  on  the  part  of  the  defendant  is 
that  plaintiff  carelessly  pushed  bis  hand 
against  the  knives  while  pressing  the  meat 
into  the  chopper,  and  that  defendant  was  not 
present  when  the  accident  happened.  The 
evidence  to  sustain  this  claim  is  as  follows: 
Defendant  testified  that  he  was  outside  the 
sausage  room  when  tbe  accident  occurred; 
that  he  had  started  towards  the  door  leading 
into  that  room,  and  heard  plaintiff  "holler"; 
that  he  ran  to  his  assistance,  grabbed  the 
belt  and  lever,  and  stopped  tbe  machine  with 
plaintiff's  hand  fast  in  It;  that  Mr.  Burk- 
hardt  came  in,  took  the  rim  off  with  a  wrench; 
that  plaintiff  and  Burkbardt  then  turned  the 
wheel  backwards  to  loosen  It  and  got  his 
band  out;  and  that  he  (plaintiff)  went  to  the 
telephone  and  called  a  physician.  One  Cyrel 
Cole,  a  boy  13  years  old,  testified  that  he  was 
holding  the  rope  that  held  the  pulley;  that 
he  watched  plaintiff  feed  tbe  machine ;  that 
he  was  shoving  tbe  meat  down  with  his 
bands;  that  he  stuck  bis  band  Into  tbe  screw 


and  "hollered";  that  defendant  was  standing 

In  the  door  when  he  "hollered";  and  that 
defendant  ran  up  to  the  machine,  grabbed 
the  belt,  and  put  the  power  off;  and  that  Mr. 
Burkbardt  ran  up,  got  a  wrench,  unscrewed 
the  rim,  and  took  plaintiffs  fingers  out.  One 
Harold  Williams,  a  boy  12  years  of  age,  tes- 
tified that  be  stood  there  watching  plaintiff 
feed  the  meat  into  tbe  machine;  that  plain- 
tiff said  nothing  until  he  got  his  fingers 
caught  in  the  machine,  and  that  he  "holler- 
ed" ;  that  defendant  was  in  tbe  other  room 
or  next  to  tbe  door,  "came  running  in  almost 
immediately,  pushing  me  aside,  grabbed  hold 
of  the  wheel  and  belt,  and  stopped  the  ma- 
chine." The  physician.  Dr.  Macklnnon,  tes- 
tified ttiat  Mr.  Green  asked  plaintiff  how  it 
happened,  and  plaintiff  answered  that  his 
hand  was  caught  while  he  was  pressing  the 
meat  down  into  tbe  machine.  Defendant  also 
testified  to  this  conversation.  Another  wit- 
ness also  testified  that  plaintiff  told  him 
that  he  stuck  his  fingers  in  too  far. 

The  case  was  submitted  to  tbe  Jury,  who 
found  a  verdict  for  the  defendant. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Devine  &  Snyder,  for  appellant  Patterson 
&  Patterson,  for  appellee. 

GRANT,  J.  (after  stating  the  facts  as 
above).  Four  errors  are  assigned:  (1)  That 
the  court  erred  in  refusing  to  exclude  all 
witnesses  from  the  courtroom  upon  plaintiff's 
motion.  (2)  That  tbe  court  erred  In  its  rul- 
ings on  admitting  and  excluding  evidence. 
(3)  That  the  court  erred  in  admitting  a  photo- 
graph. (4)  That  the  court  erred  in  bis  in- 
structions to  the  Jury. 

1.  In  civil  cases  the  exclusion  of  witnesses 
from  the  courtroom  during  trial  rests  In  tbe 
sound  discretion  of  the  trial  court.  Johnston 
V.  Farmers'  Fire  Ins.  Co.,  106  Mich.  98,  64 
N.  W.  5 ;  Mcintosh  v.  Mcintosh,  79  Mich.  198, 
44  N.  W.  692 ;  2  Shinn's  Pi.  &  Pr.  89. 

2.  We  find  no  error  In  the  court's  rulings 
excluding  and  admitting  evidence.  We  do 
not  consider  them  of  suflBcient  importance  to 
require  discussion. 

3.  The  photograph,  to  the  introduction  of 
which  objection  was  made,  was  taken  with 
the  two  boys  standing  in  the  position  in 
which  they  testified  they  stood  at  the  time 
of  the  accident,  and  with  the  plaintiff  stand- 
ing at  the  machine,  where  the  evidence  on 
the  part  of  the  defendant  placed  him.  It 
also  shows  the  defendant  standing  at  the 
door  where  he  testified  that  he  stood.  Plain- 
tiff on  cross-examination  was  shown  this 
photograph,  and  testified  that  it  correctly 
represented  the  Interior  of  the  room  and  tbe 
situation  of  the  machine.  He  then  pointed 
out  on  the  photograph  where  he -stood  and 
where  the  boys  stood.  It  is  claimed  that  tbe 
presence  of  these  parties  in  the  photograph 
rendered  its  admission  Incompetent,  and  that 
It  naturally  tended  to  prejudice  the  Jury  by 
placing  before  them  in  a  vivid  manner  the 


Digitized  by  VjOOQ  l€ 


UldL) 


HARRISON  ▼.  GREEN. 


207 


dalm  of  tbe  defendant    I  tblnk  it  wonld  be 
a  reflectton  upon  the  intelligence  of  tlie  jnry 
to  hold  that  they  were  liable  to  be  misled  or 
unduly  influenced  by  an  examination  of  the 
photograph.    It  represented  the  witnesses  in 
the  exact  position  which  defendant  claims 
they  occupied.    It  is  conceded  that  the  photo- 
graph would  have  been  admissible  without 
the  presence  of  tbe  persons  in  it.    If  such  a 
photograph  had  been  Introduced  and  the  wit- 
nesses   asked  to  mark   in   any   manner  the 
places  where  they  stood,  such  evidence  cer- 
tainly would  have  been  competent.    The  sym- 
bol or  mark  by  which  their  location  is  Indi- 
cated is  wholly  immaterial.    The  authorities 
I  have  t>een  able  to  find  sustain  the  ruling 
of  the  court    Shaw  v.  State,  83  Ga.  92,  9  8. 
E.  "68;  Glazier  v.  Town  of  Hebron,  62  Hun, 
137.  16  N.  Y.  Supp.  503;  State  v.  O'Reilly, 
126  Mo.  597,  29  S.  W.  577;  State  T.  Kelley, 
46  S.  C.  55,  24  S.  E.  60.    In  Shaw  t.  State 
tbe  facts  are  substantially  the  same  as  in 
tbe  present  case.    In  that  case  persons  were 
placed  in  the  same  positions  said  to  have 
been  occupied  by  the  defendant  and  his  ac- 
complices.   It  was  held  not  error  to  admit  it ; 
the  court  saying  that  they  had  examined  tbe 
photograph,  and  did  not  see  in  what  respect 
it  was  calculated  to  inflame  tbe  Jury.    The 
case  was  reversed  on  other  grounds.    It  ap- 
peared that  the  evidence  did  not  exactly  lo- 
cate the  position  of  the  defendant  and  tbe 
court  suggested  that  upon  the  new  trial  the 
state  prove  more  certainly  that  the  photo- 
graph represented  the  defendant's  position  at 
the  time   of   the    homicide.    In    Glazier   v. 
Town  of  Hebron  a  photograph  was  taken  of 
tbe  place  after  a  fence  had  been  erected,  and 
the  photograph  was  held  properly  admitted. 
In  State  v.  O'Reilly  three  prearranged  flgures 
were  grouped  in  the  photograph  to  indicate 
the  actors  in  a  homicide.    It  was  held  admis- 
sible.   In  State  v.  Kelley  the  prosecutor  was 
shot  through  a  window  while  on  his  bed. 
Tbe  charge  was  assault  and  battery  with  in- 
tent to  kill.    The  photograph  was  taken  the 
next  day  with  tbe  prosecutor  sitting  on  the 
bed  with  his  head  bound  in  clottis  in  the 
position  the  state  claimed  be  was  in  at  the 
time  of  the  shooting.    The  photograph  was 
held  admissible.     See  Dedrichs  v.  Salt  Lake 
City  R.  Co.,  14  Utah,  137,  46  Pac.  656,  35  L. 
B.  A.  802,  and  note.    Counsel  for  plaintiff 
cites  Fore  t.  State,  75  Miss.  727,  23  South. 
TlO.    In  ttiat  case  neither  the  statement  nor 
tbe  opinion  of  tbe  court  states  what  the 
photographs  showed  or  the  evidence  explain- 
ing them  upon  which  the  ruling  was  made 
that  they  were  inadmissible.    The  court  in 
Its  opinion  npon  tbe  point  said:    "The  pic- 
tures were  not  photographic  representations 
of  tbe  scene  of  the  lamentable  tragedy.    They 
were  artistic  representations   of   situations 
carefully  planned  by  the  state's  chief  wit- 
ness."   If  the  facts  upon  which  the  court  rul- 
ed were  stated,  it  might  appear  that  the  rul- 
ing was  correct 
4.  Tbe  serious  question  in  the  case  arises 


npon  tbe  charge  of  tbe  court  It  Is  urged 
that  the  trial  judge  clearly  indicated  his  dis- 
belief in  the  evidence  of  the  plalntlfF,  and 
that  it  was  impossible  for  tbe  witnesses  for 
the  defendant  to  be  mistaken,  and  that  he 
impressed  upon  the  Jnry  bis  own  opinion  of 
the  evidence.  This  allegation  of  error  is 
based  upon  the  following  excerpts  from  the 
charge:  "I  feel  obliged  to  be  a  little  more 
pointed  than  counsel  were  in  this.  Speaking 
for  myself,  -I  am  unable  to  see  how  all  of 
these  witnesses  could  be  mistaken  about  it." 
To  this  and  as  a  part  of  the  same  sentence 
the  court  added :  "And  in  my  point  of  view 
it  raises  a  square  question  of  veracity  be- 
tween these  witnesses,  and  the  case  has  been 
tried  upon  that  theory,  gentlemen,  by  both 
sides."  Previous  to  this  excerpt  the  conrt 
had  stated  the  theory  of  both  parties,  and 
bad  stated  that  It  raised  a  square  question 
of  veracity.  Complaint  Is  made  to  the  fol- 
lowing excerpt:  "Speaking  for  myself,  I 
do  not  see  bow  there  is  any  room  for  mere 
forgetfulness  or  mistake  as  to  that."  Just 
previous  to  this  excerpt  the  court  bad  stat- 
ed: "Tbe  defense,  both  in  the  opening  state- 
ment of  counsel  and  as  presented  by  witness- 
es, is  upon  the  theory  that  Mr.  Green  was 
not  near  the  machine  at  all.  Now,  gentlemen, 
it  belongs  to  you  to  determine  which  of  these 
witnesses  is  stating  the  truth.  Let  me  re- 
peat." The  Judge  then  made  tbe  statement 
now  complained  of.  The  following  excerpt  Is 
also  complained  of:  "Now,  I  go  out  of  my 
way  to  say  this  to  you,  gentlemen,  because 
the  case  calls  for  it:  Tliat  where  there  are 
an  equal  number  of  witnesses  on  each  side 
and  they  are  of  equal  character,  and  their 
examination  and  cross-examination  are  ap- 
parently equal,  that  then  you  will  find  it 
impossible  to  tell,  who  is  telling  the  truth. 
But  something  like  30  years'  experience  in 
court  I  have  never  found  Just  such  a  case 
as  that  yet"  Immediately  following  this  the 
conrt  said:  "So  it  becomes  necessary  for 
tbe  Jury  to  determine  whether  the  testimony 
of  one  witness  Is  to  be  believed  as  against 
that  of  several.  Of  course.  If  the  testimony 
of  several  appears  to  be  equally  truthful,  the 
witnesses  are  of  equally  good  character,  there 
Is  nothing  about  tbe  case  that  will  inform  you 
or  give  you  any  clue  as  to  whether  the  four 
are  correct  or  tbe  one.  Then  the  four  would 
naturally  be  believed  by  the  Jury,  and  tbe 
preponderance  of  testimony  would  be  with 
the  four.  But  sometimes  it  happens  that 
tbe  Jurors  are  able  to  know  or  determine 
from  the  surroundings  of  the  case  or  from 
some  corroboration  and  from  otber  parts  of 
the  testimony  and  from  witnesses  that  the 
one  is  actually  stating  the  truth  and  the 
three  or  four  or  half  dozen  or  more  are  either 
mistaken  or  willfully  have  stated  an  untruth. 
If  from  the  surroundings  of  the  case  and 
from  the  testimony  in  the  case  the  testimony 
of  tbe  one  witness  convinces  you  that  he  is 
telling  tbe  truth,  you  feel  it  and  know  It  or 
there  is  a  greater  probability  of  his  telling 


Digitized  by  VjOOQ  l€ 


208 


122  NORTHWESTERN  REPORTER. 


(Micb. 


the  trutb,  so  much  so  that  yon  have  a  belief 
that  the  other  number  are  mistaken  or  have 
stated  an  untruth,  then,  of  course,  you  do  be- 
lieve the  testimony  of  one  as  against  the 
testimony  of  several,  and  in  such  an  event  as 
that  you  are  to  receive  the  testimony  of  one 
and  act  upon  it,  and  it  will  create  a  prepon- 
derance of  the  evidence.  Why,  because  the 
term  of  preponderance  of  itself  does  not  de- 
pend upon  the  number,  but  It  is  a  term  usual- 
ly rather  as  denoting  the  character  and 
weight  of  the  testimony,  and  would  be  a  pre- 
ponderance of  evidence  because  you  believe 
it  in  your  own  minds  as  Jurors,  and  disbe- 
lieve the  testimony  of  the  other  witnesses 
that  are  opposed  to  it."  Complaint  is  also 
made  of  the  following  excerpt:  "So  In  this 
case,  gentlemen,  if  you  can  fairly  and  truth- 
fully say  that  you  believe  the  testimony  of 
the  one  witness  as  against  the  larger  num- 
ber of  the  other  side,  then  you  may  receive 
it  and  act  upon  it,  and  you  will  be  warranted 
in  saying  that  you  find  a  verdict  for  the 
plaintiff  based  upon  preponderance  of  evi- 
dence. But  If,  on  the  contrary,  gentlemen, 
you  do  not  believe  the  testimony  of  this 
young  man  as  against  all  of  these  witnesses, 
then  you  cannot  fairly  say  that  he  has  proven 
bis  case  by  a  fair  preponderance  of  evi- 
dence, and  he  would  not  be  entitled  to  any 
verdict  at  your  bands,  but  If  yon  do  believe 
it,  and  do  not  believe  the  testimony  of  the 
witnesses  opposing  it,  then,  as  I  stated  at 
the  outset,  be  Is  entitled,  not  to  a  mere  beg- 
garly sum  because  the  defendant  may  be  able 
to  pay,  but  he  is  entitled  to  a  substantial, 
fair,  and  full  compensation  for  the  Injury." 
Complaint  Is  also  made  because  the  judge 
said  to  the  jury  that  they  might  take  into 
account  the  fact  that  the  testimony  of  the 
plaintiff  was  net  corroborated  by  any  person, 
and  stands  alone.  At  the  request  of  the 
plaintiff,  the  court  Instructed  the  jury  that, 
If  the  testimony  of  the  plaintiff  was  found  to 
be  true,  he  was  entitled  to  recover,  and  the 
question  of  contributory  negligence  was  not 
in  the  case.  At  the  close  of  his  charge,  the 
court  correctly  stated  the  Issue  to  the  jury, 
saying,  In  substance,  that.  If  the  plaintiff 
had  established  his  claim  by  a  preponderance 
of  the  evidence,  he  was  entitled  to  recover, 
but  that,  if  they  could  not  fairly  and  truth- 
fully say  that  plaintiff  had  established  his 
case  by  a  fair  preponderance  of  evidence,  they 
must  find  for  the  defendant  Plaintiff's  case 
rested  upon  his  own  testimony  alone.  He 
was  uncorroborated  by  a  single  witness  or  a 
single  circumstance.  His  version  that  de- 
fendant stood  by  his  side,  and,  knowing  what 
he  was  doing  and  the  danger  that  he  was  in 
If  the  machine  were  In  operation,  and  de- 
liberately turned  on  the  power,  is  Improbable. 
It  appears  from  the  Instruction  of  the  circuit 
judge  that  the  case  was  submitted  to  the 
jury  by  the  attorneys  for  both  sides  on  the 
veracity  of  the  witnesses.    This  statement  by 


the  court  la  unchallenged.  The  Instruction 
must,  therefore,  be  criticised  In  the  light  of 
this  fact  There  was  no  room  for  court  or 
jury  to  find  that  either  the  plaintiff  or  tbe 
witnesses  for  the  defense  were  mistaken.  It 
is  a  dear  case  of  deliberate  falsehood  on  the 
one  Bide  or  upon  the  other.  Five  witnesses, 
only  one  of  whom  had  any  Interest  in  the 
result  of  the  suit,  directly  and  positively 
contradicted  the  uncorroborated  statement 
of  tbe  plaintiff.  The  charge  of  the  court  can- 
not be  construed  into  the  expression  of  a 
belief  In  tbe  witnesses  for  the  defendant 
He  was  referring  in  that  portion  of  the 
charge  to  the  plaintiff's  witness  upon  one 
side  and  the  defendant's  witnesses  upon  the 
other,  and  said  to  the  jury,  in  substance^ 
there  is  no  room  for  an  honest  mistake.  Ei- 
ther the  plaintiff  tells  the  truth  and  the  de- 
fendant's witnesses  have  falsified,  or  the 
plaintiff  has  falsified  and  the  defendant's 
witnesses  have  told  the  truth.  That  was  the 
issue  and  the  sole  issue  before  the  jury. 
Counsel  had  argued  the  case  upon  that 
theory,  and  the  court  submitted  it  to  them 
upon  the  same  theory.  While  the  charge 
of  the  court  may  be  subject  to  criticism,  I 
do  not  think  that  it  contains  any  prejudicial 
error  under  the  drcimistances.  and  that  the 
Judgment  should  be  affirmed. 


PLUMB  V.  HECLA  CO.  et  aU 
(Supreme  Court  of  Michigan.    July  15,  1909.) 

1.  Railboads  (8  260*)— Companies  Liablb— 
Injukt  to  Servant  ot  Anothxb  —  Acts 

CONSTITCTINO    NEOLIGENCK. 

Plaintiff,  a  vard  conductor,  in  the  employ  of 
the  M.  Railroaa  Company,  while  passing  with 
an  engine  over  tracks  of  the  H.  Belt  Line  Com- 
pany, in  order  to  switch  cars  up  to  tbe  plant 
of  defendant,  was  injured  bv  the  spreadingof 
the  rails  and  the  ditching  of  the  engine.  The 
declaration  charged  that  at  the  time  of  the 
accident  tbe  H.  Belt  Ldne  Company,  including 
tbe  track  on  which  he  was  injured  and  its 
maintenance  and  repair,  was  under  the  charge 
and  control  of  defendant,  H.  Company,  and 
that  plaintiff's  employer  was  at  the  time  using 
said  road  at  tbe  invitation  and  request  of  the 
H.  Company  for  the  purpose  of  delivering  cars 
at  its  plant,  and  that  it  was  its  duty  to  main- 
tain such  track  in  a  reasonably  safe  condi- 
tion for  such  purposes.  Held  that,  in  order  to 
charge  defendant  with  liability  for  his  injury, 
he  must  show  that  at  tbe  time  tbe  management 
and  maintenance  and  repair  of  the  H.  Belt  Line 
Company's  track  was  under  the  control  of  de- 
fendant, and  that,  at  the  time  he  was  injured, 
the  engine  and  train  crew  were  using  the  road 
at  the  invitation  or  request  of  defendant  for 
its  purposes  and  benefit. 

[Ed.   Note.— For  other  cases,   see   Railroads, 
Cent  Dig.  i  818;   Dec.  Dig.  (  2C0.»] 

2.  Railboads  (i  272*)— Companies  Liablb— 

INJDBT    TO     SeBVANT    OF    ANOTHER— SUFFI- 

ciENCY  OF  Evidence. 

Evidence  in  an  action  by  a  yard  conductor 
employed  by  the  M.  Railroad  Company  for  in- 
juries received  while  attempting  to  switch  can 
to  defendant's  plant  over  the  track  of  the  H. 
Company  by  the  spreading  of  the  track  tteld 
to  warrant  a  finding  that  plaintiff,  at  the  time 


•ror  other  ewes  see  seme  topic  and  section  NUMBER  In  Dec.  ft  Am.  Dig*.  U07  to  date,  ft  Reporter  Indexet 


Digitized  by  VjOOQ  l€ 


Hlcb.) 


PLUUB  ▼.  HECLA  00. 


209 


of  his  injonr,  iraa  vuAug  the  road  at  the  is* 
Titation  of  defendant  H.  Company,  and  for  its 
DDrpcaea  and  benefit. 

[Ed.    Note.— For  other  cases,   see   Railroads, 
Cent  Dig.  $  867;    Dec.  Dig.  f  272.*] 

3.  RAIUtOADS    (I   273*)— COMPANIBB    LlABLB— 

Injxtbt   to    mbvakt   ot   Anothkb— Qum- 

TIOHB     rOB    JXJBT. 

In  snch  an  action,  evidence  held  sufficient 
to  go  to  the  jury  on  the  question  whether  de- 
fendant was  responsible  for  the  control  and 
maintenance  of  the  track  at  the  place  of  injury. 
[Ed.  Note.— For  other  cases,  see  Railroads, 
Dec.  Dig.  i  273.*] 

4.  RArLBOADS  (I  268*)— GoitPARiES  Liable— 

INJUBT    TO    SeBVAWT   OF    ANOTHEB— PLKAD- 

nia — Vabianck. 

In  an  action  by  a  railroad  yard  conductor 
for  injnries  caused  by  the  ditclung  of  his  en- 
gine by  the  spreading  of  the  rails  while  passing 
over  a  transfer  traclc  under  defendant's  control, 
the  declaration  charged  that  it  Was  defendant's 
doty  to  maintain  the  track  in  a  safe  condition, 
to  provide  and  equip  it  with  rails  connected 
by  fish  joints  secumy  bolted  to  them  with 
the  rails  spiked  to  the  ties,  and  not  to  main- 
tain said  track  in  an  unsafe  condition  owing 
to  their  atisence,  and  to  warn  plaintiff  that 
the  track  was  defective  owing  to  the  absence 
of  fish  joints,  and  that  the  rails  were  not  se- 
curely uatened.  Held,  that  evidence  that  the 
fish  plates  had  been  unbolted  and  taken  off 
and  were  on  the  ground,  and  that  the  spikes 
had  been  drawn  from  one  rail  and  that  this 
loose  rail  caused  the  accident,  and  that  no 
warning  of  the  danger  had  been  given,  is  within 
the  allegations  of  the  declaration. 

[Ed.    Note.— For   other  cases,  .see   Railroads, 
Dec  Dig.  S  268.*] 

6.   RAIX.BOADS    (S    271*)— COlfPAKIBS    LIABLE— 

Injury  to  Sebvant  or  Anotheb— Admis- 

siBiLnT  OP  Evidence. 

In  an  action  by  a  railroad  yard  conductor 
in  the  employ  of  the  M.  Railroad  Company  for 
injuries,  caused  by  the  ditching  of  his  engine 
while  passing  over  the  track  of  the  H.  Com- 
pany in  trauferring  cars  to  the  plant  of  de- 
lendant,  plaintiff  alleged  that  the  track  of  the 
H.  Company  was  under  the  control  of  defend- 
ant Held,  that  evidence  to  show  the  use  of 
the  H.  Company's  tracks  b^  the  M.  Company 
and  other  railroad  companies  was  admissible 
as  bearing  on  the  question  of  the  use  of  the 
track,  and  the  consent  by  defendant  to  such 
Qse,  and  as  showing  for  whom  the  work  was 
being  done  at  the  time  of  the  accident 

[Ed.   Note. — For  other  cases,   see  Railroads, 
Cent  Dig.  {  866;    Dec.  Dig.  {  271.*] 

6.  Railboads  (§  271*)— Companies  Liable— 
I5JUBT  to  Sebvant  or  Anotheb— Aduissi- 
BiLiTT  o»  Evidence. 

Evidence  as  to  the  warning  or  notice  given 
when  the  fastenings  of  a  rail  were  taken  off 
vas  material,  plaintiff  alleging  that  it  was  de- 
fendant's duty  to  warn  plaintiff  of  the  con- 
dition of  the  track,  and  the  evidence  showing 
that  the  rail  had  been  loosened. 
^[Ed.  Note.— For  other  cases,  see  Railroads, 
Dec  Dig.  i  271.*] 

7.  Appeal  and  Ebbob  Q  293*)— Resebvation 

IN  LOWXB  COTJBT  of  OBOUNDS  OF  REVIEW— 

MonoNS  TO  Set  Aside  Vebdict. 
The    appellate    court,    except    in    extreme 
cases,  will  not  voluntaril:^  disturb  the  verdict  of 
a  jury,    where    no    motion    to    set    aside    the 
Verdict  has  been  made  in  the  court  below. 

[Ed.  Note. — For  other  rases,  see  Appeal  and  Er- 
»r,  Cent  Dig.  H  1700-1706;  Dec  Dig.  J  293.*] 

8.  Appkal  and  Ebbob  ({  730*)- Assionmentb 
or  Ebbob— Specification  of  Ebbobb. 

Where  the  charge  as  to  the  question  of 
damages  fills  two  printed  pages,  an  assignment 


of  error  that  "the  court  erred  in  instructing 
the  jur^  as  to  the  measure  of  damages  that 
plaintiff^  could  be  entitled  to,  in  case  they  found 
in  his  favor,"  is  a  challenge  to  eveir  utterance 
of  the  court  upon  the  subject,  and  is  not  soffi- 
ciently  specific, 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  i§  3013-^16;  Dec  Dig.  i 
730.*] 

Appeal  from  Circuit  Court,  Bay  County; 
Chester  L.  Collins,  Judge. 

Action  by  Edward  Plumb  against  the  Hec- 
la  Company,  Impleaded  with  the  Hecla  Belt 
Line  Railroad  Company.  Judgment  for 
plaintiff  against  the  Hecla  Company,  and  it 
appeals.    Affirmed. 

Argued  before  MONTGOMBRT,  OSTRAN- 
DER,  HOOKER,  MOORB;  and  McAL- 
VAY,  JJ. 

Morris  L.  Courtright,  and  Miller,  Smith, 
Paddock  &  Perry,  for  appellant  De  Vere 
Hall,  for  appellee. 

McALVAX,  J.  This  was  an  action  by 
plaintiff  against  the  Hecla  Company,  im- 
pleaded with  the  Hecla  Belt  Line  Railroad 
Company,  defendants,  for  damages  for  per- 
sonal injuries  received  on  account  of  claim- 
ed negligence  of  defendants.  Defendants 
offered  no  evidence,  but  at  the  close  of  plain- 
tiff's case  asked  the  court  to  instruct  a  ver- 
dict in  their  behalf,  and  in  behalf  of  each 
of  them  for  several  reasons,  which  will  be 
considered  later.  This  motion  was  denied, 
and  defendant  makes  such  denial  the  basis 
of  its  principal  assignment  of  error.  Plain- 
tiff recovered  a  substantial  Judgment  against 
defendant  Hecla  Company  only.  The  Jury 
found  a  verdict  in  favor  of  defendant  Hecla 
Belt  Line  Railroad  Company. 

The  following  facts  are  material,  and  their 
statement  necessary  to  an  Intelligent  consid- 
eration of  the  case:  Plaintiff  was,  at  the 
time  of  his  injury,  a  yard  conductor,  employ- 
ed by  the  Michigan  Central  Railroad  Compa- 
ny, in  charge  of  the  switching  crew  and  the 
switching  and  distributing  of  cars  In  Its  Bay 
City  yard.  He  had  been  in  the  employ  of 
the  company  doing  switching  since  1892. 
Defendant  Hecla  Belt  Line  Railroad  Com- 
pany is  a  Michigan  corporation  organized 
under  the  general  railroad  laws.  It  is  a 
very  short  line,  used  for  bringing  to  and  tak- 
ing away  from  the  plant  of  the  defendant 
Hecla  Company's  cement  plant  empty  and 
loaded  cars.  It  is  the  only  road  over  which 
cars  may  come  to  this  plant,  and  this  man- 
ufactory is  the  only  one  situated  on  the  line 
of  this  railroad.  A  short  piece  of  this  road, 
674  feet  long,  called  the  "transfer  track,"  is 
used  for  the  purpose  of  transferring  and 
switching  cars  over  it  to  and  from  the  Mich- 
igan Central  and  other  roads  which  cross  or 
are  connected  by  this  part  with  defendant 
road,  and  also  to  bring  cars  to  and  from  the 
Hecla  Company  plant  This  transfer  track 
Is  built  on  a  sharp  curve  from  the  point 
where  It  leaves  the  Hecla  Belt  Line  main 


•For  other  eases  see  sam*  topic  and  SMtlon  NUltBBR  la  Dec.  £  Am.  Digs.  U07  to  date,  &  Reporter  Indexes 
122N.W^14 

Digitized  by  VjOOQ  IC 


210 


122  NORTHWESTERN  REFOBTER. 


(Micb. 


track  nntil  It  connects  with  the  Detroit  & 
Mackinac  Road.  Plaintiff  was  well  acquaint- 
ed with  the  situation,  having  (or  two  years 
done  switching  OTer  tliis  transfer  line,  and 
placed  and  hauled  out  cars  and  done  other 
work  over  it  and  over  the  main  line  of  the 
Hecld  Belt  Line  Company  for  the  Hccia 
Company  and  the  Michigan  Central  Rail- 
road Company,  going  over  the  ground  twice 
each  day.  On  June  17,  1907,  plaintiff,  under 
orders  of  the  yardmaster,  left  the  Michigan 
Central  yard  about  the  middle  of  the  after- 
noon, with  a  switch  engine,  going  east,  push- 
ing 31  freight  cars,  6  of  which  were  for  the 
Hecia  Company  and  26  for  the  Detroit  te 
Mackinac  Railroad.  The  cars  for  the  Hecla 
Company  were  on  the  east  end  of  the  train 
convenient  to  cut  off  and  leave  on  the  main 
line  of  the  Hecla  Belt  Line,  while  the  Detroit 
&  Mackinac  cars  were  being  transferred. 
When  the  engine  had  run  east  of  the  point 
where  the  transfer  track  left  the  Belt  Line 
to  connect  with  the  Detroit  &  Mackinac,  it 
whistled  for  the  target  at  the  transfer  which 
was  operated  by  a  towerman,  and  when  the 
train  stopped  the  plaintiff  cut  off  the  five 
cars  for  the  Hecla  Company.  When  they 
got  the  target  they  ran  the  train  over  the 
transfer  track  onto  the  Detroit  &  Mackinac 
Road,  leaving  plaintiff  at  the  depot,  and  tak- 
ing the  26  cars  for  that  road  beyond  the 
deiMt  into  its  yard.  When  the  engine  had 
left  these  cars  and  come  back  plaintiff  got 
on  again,  and  rode  on  the  footboard  of  the 
engine  on  the  fireman's  side.  The  engine 
was  headed  east,  going  back  to  finish  the 
work  to  be  done  for  the  Hecla  Company. 
TUey  got  the  target  for  the  transfer  track, 
and  while  passing  back  over  it  on  the  curve, 
a  rail  from  which  the  spikes  and  fish  plates 
had  been  removed  spread  and  threw  the  en- 
gine from  the  track.  Plaintiff  was  caught 
under  the  footboard,  and  his  leg  was  crush- 
ed. No  warning  of  the  dangerous  condition 
of  the  track  was  given  to  plaintiff  or  the 
engine  crew.  Plaintiff  charged  in  his  dec- 
laration that  at  the  time  of  the  accident  the 
Hecla  Belt  Line  Railroad  including  this 
transfer  track  and  Its  maintenance  and  re- 
pair was  under  the  charge  and  control  of 
the  Hecla  Company  and  the  Michigan  Cen- 
tral Railroad  was  at  the  time  using  said 
road  at  the  invitation  and  request  of  the 
Hecla  Company  for  the  purpose  of  delivering 
and  placing  cars  for  it  at  its  plant,  and  that 
it  was  its  duty  to  maintain  such  track  in  a 
reasonably  safe  condition  for  such  purposes, 
and  also  In  case  of  repairs  to  warn  and  no- 
tify plaintiff  of  the  unsafe  condition;  which 
duties  it  neglected,  and  on  account  of  which 
neglect  plaintiff  was  injured. 

In  order  to  charge  defendant  Hecla  Com- 
pany with  liability  for  his  injury  as  claimed 
in  his  declaration  there  must  have  been  fur- 
nished by  him  in  the  case  evidence  tending 
to  show  (a)  that  at  this  time  the  manage- 
ment, maintenance,  and  repair  of  the  Hecla 
Belt  Line  Railroad  was  under  the  control  of 


the  Hecla  Company;  (b)  that  the  Michigan 
Central  engine  and  the  train  crew  were  at 
the  .time  using  this  road  and  Its  transfer  at 
the  Invitation  or  request  of  said  defendant 
company,  and  for  its  purposes  and  benefit 
Defendant  Insists  that  these  propositions  are 
not  proven,  and  relies  upon  such  absence  of 
proof  as  the  basis  of  its  motion  for  an  in- 
structed verdict.  An  examination  of  plain- 
tiff's proofs  shows  that  the  Michigan  Central 
Railroad  engines  and  employes  went  over 
this  road  daily  for  the  purposes  and  benefit 
of  the  Hecla  Company,  and  for  the  purpose 
of  transferring  and  switching  cars  to  other 
roads.  Plaintiff  was  there  twice  a  day  with 
the  engine  and  crew,  and  did  ail  the  work 
required  by  the  Hecla  Company  under  the 
direction  of  Its  officers  and  agents.  The 
work  for  the  Hecla  Company  was  not  con- 
fined to  bringing  cars  in  and  out,  but  it  ap- 
pears that  plaintiff  hauled  cars  loaded  with 
cinders  from  the  boiler  house  to  and  npou 
this  transfer  track  to  be  there  unloaded  and 
used  to  repair  and  ballast  the  roadbed. 
There  is  sufficient  proof  to  warrant  a  finding 
of  express  invitation,  as  to  some  things  done 
for  the  defendant  company  on  this  road, 
and  from  its  constant  use  for  other  purposes 
of  said  company  the  jury  would  be  justified 
in  finding  an  implied  invitation.  This  evi- 
dence is  strengthened  by  the  fact  that  nei- 
ther of  these  defendants  owned  or  possessed 
engines  or  other  motive  power.  We  do  not 
think  that  the  claim  can  be  made  that  the 
Hecla  Company  had  no  knowledge  of  the 
ordinary  uses  of  the  track  by  the  Michigan 
Central  Railroad  In  view  of  the  undisputed 
record.  Nor  do  we  find  in  the  record  that 
any  extraordinary  or  peculiar  use  was  made 
of  any  of  the  tracks  of  the  Belt  Line  Rail- 
road, and  if  the  record  shows,  as  plalntlCF 
charges,  that  the  Hecla  Company  was  man- 
aging and  controlling  this  road.  It  would  be 
charged  with  notice  of  the  purposes  for 
which  it  was  used  by  those  who  were  con- 
stantly using  It. 

Upon  the  question  of  management  and  con- 
trol of  the  Hecla  Belt  Line  Railroad  there 
is  proof  which  shows  that,  besides  the  track 
and  roadbed,  its  properties  consisted  of  some 
cars,  which  we  infer  were  flat  cars,  froni 
which  its  name  at  the  time  was  being  erased 
and  the  name  of  the  Hecla  Company  substi- 
tuted. Plaintiff  In  his  dally  work  In  connec- 
tion with  this  road  for  over  two  years  never 
received  orders  from  any  officer  or  agent  of 
the  corporation,  but  always  transticted  his 
business  with  and  received  his  orders  from 
the  officers  and  employes  of  the  Hecla  Com- 
pany. This  company  had  no  office  or  place 
of  business  known  to  plaintiff. 

Plaintiff  testified  "the  Hecla  Belt  Line 
Railroad  Company  has  no  engine  of  their 
own  employed  upon  that  railroad,  and  no 
trainmen  or  sectionmen  as  far  as  I  know, 
and  had  no  employes  that  I  know  of  that 
did  work  either  operating  trains  or  main- 
taining the  track.    The  tracks  of  this  road 


Digitized  by  VjOOQ  l€ 


UldL) 


PLUMB  V.  HECLA  CO. 


211 


were  not  maintained  and  repaired  by  the 
Michigan  Central  Ballroad  or  tlie  connecting 
road  whlcb  used  tbem.  The  foreman  of  sec- 
tlonmen  wlio  were  employed  to  maintain 
and  rq;)alr  these  tracks  was  employed  by  the 
asalstant  saperintendent  of  the  Hecla  Com- 
pany." This  man  testlfled  that  he  was  sec- 
tion boss  on  this  road,  that  he  supposed  he 
was  paid  by  the  Hecla  Company  as  he  got 
his  pay  at  tbe  same  time  with  the  rest  of 
the  men  at  the  plant;  that  his  crew  worked 
on  this  transfer  track,  and  was  the  only  crew 
working  on  this  road  to  his  knowletige.  The 
sectionmen  were  paid  at  tbe  Hecla  Company 
office  at  the  same  time,  in  tbe  same  manner, 
and  by  the  persons  who  paid  tbe  rest  of  the 
m«i  employed  In  the  cement  plant  of  the 
Hecla  Company.  Mr.  Hanson  an  employ^ 
of  tbe  Hecla  Company  and  tbe  section  fore- 
man of  the  section  crew  at  work  at  the  time 
of  the  accident,  were  the  persons  who  told 
plaintiff  to  haul  the  cinders  put  on  the  road- 
bed, and  this  crew  at  this  time  were  doing 
this  work  on  the  transfer,  and  there  Is  proof 
tending  to  show  that  the  spikes  and  fish 
plates  were  removed  by  them  and  that  they 
left  the  rail  in  that  condition  without  warn- 
ing or  notice  of  tbe  danger.  We  find  that 
there  was  evidence  to  go  to  the  Jury  upon 
the  question  of  tbe  control  and  maintenance 
of  tbe  road  by  defendant  Hecla  Company. 

Defendant  contends  that  there  is  no  evi- 
dence to  show  that  at  tbe,  time  of  the  acci- 
dent this  road  was  being  used  for  tbe  pur- 
poses and  benefit  of  defendant  Hecla  Com- 
pany. Tbe  argument  is  based  upon  the  fact 
tliat  the  accident  occurred  upon  tbe  trans- 
fer track,  while  plaintiff  was  returning  from 
placing  the  cars  on  tbe  Detroit  &  Mackinac 
track  to  finish  tbe  work  of  placing  the  cars 
for  defendant  Hecla  Company,  and  did  not 
occur  upon  the  main  track  of  the  Hecla  Belt 
Une;  and  that  while  upon  the  transfer 
track  no  act  was  done  for  the  benefit  of  tbe 
Hecla  Company.  This  distribution  and  plac- 
ing of  cars  was  done  In  the  usual  course  of 
business,  and  In  the  most  convenient  man- 
ner. No  complaint  is  made  that  this  is  not 
so.  That  the  placing  of  Its  cars  was  for  tbe 
benefit  of  the  Hecla  Company  is  not  disput- 
ed; but  t>ecause  plaintiff  was  coming  back 
over  tbe  only  track  possible  to  use  to  com- 
plete this  work,  after  disposing,  in  the  ordi- 
nary manner,  of  cars  necessary  to  be  trans- 
ferred before  being  able  to  do  so,  it  is  claim- 
ed that  he  cannot  I>e  held  to  have  been  en- 
gaged in  work  for  this  company's  benefit. 
It  is  further  claimed  that  the  evidence  af- 
firmatively sustains  defendant's  contention. 
This  claim  is  based  upon  plaintiff's  cross-ex- 
amination relative  to  tbe  exact  thing  he  was 
doing  at  the  time  of  his  injury.  The  im- 
portance claimed  for  this  testimony  and  its 
brevity  is  the  excuse  for  quoting  It.  "Q. 
The  Hecla  Company  had  no  dealings  with 
yon  In  relation  to  that  track  had  it?  A. 
Tes,  sir.  Q.  Wliat  dealings  did  they  have 
with  yoa  in  relation  to  the  track?    A.  Why, 


I  am  over  to  do  their  work  there.  Q.  Yon 
were  not  on  that  track  doing  their  work 
were  you?  A.  They  used  that  track  for  that 
work.  Q.  You  were  not  on  that  track  do- 
ing their  work?  A.  I  was  coming  over  that 
track  to  do  tbeir  work.  Q.  To  get  to  do  tbeir 
work?  A.  Yes,  sir.  Q.  To  get  to  tbe  track 
that  was  used  for  tbe  work,  but  you  were 
not  on  their  track  doing  tbeir  work?  A.  I 
was  going  to  do  tbeir  work.  Q.  Were  yoa 
doing  any  work  for  tbem  on  that  track  that 
day  at  the  time  of  the  injury?  A.  I  was  com- 
ing over  to  do  their  work  is  what  I  said.  Q. 
You  were  going  to  do  it  in  tbe  future?  A. 
Yes." 

This  testimony  does  not  contradict  or 
change  the  direct  examination.  It  in  fact 
makes  it  more  specific.  We  have  already 
held  that  there  was  evidence  in  the  case  to 
go  to  the  Jury  tending  to  show  the  charge 
and  control  over  this  road  in  the  Hecla  Com- 
pany. The  transfer  track  was  a  part  of  the 
road.  Plaintiff  testified  that  this  was  used 
for  defendant  Hecla  Company's  work,  and 
he  repeats  that  in  tbe  testimony  above  quot- 
ed. It  is  clear  to  us  that  tbe  question  was 
one  to  be  submitted  to  tbe  Jury,  and  that  in 
doing  so  the  court  was  not  in  error.  Tbe 
argument  of  appellant  that  no  liability  at- 
tached to  defendant  on  account  of  plaintitTs 
injury  because  it  owed  him  no  duty.  Is  the 
conclusion  drawn  from  defendant's  construc- 
tion of  the  evidence  In  the  record,  relative 
(a)  to  the  use  of  tbe  track  by  Invitation ;  (b> 
the  control,  maintenance  and  repair  of  tbe 
road ;  and  (c)  the  use  of  tbe  transfer  track 
for  tbe  Hecla  Company  at  the  time  of  tbe 
injury.  The  court  not  agreeing  with  such 
construction  as  herein  expressed,  there  is  no 
necessity  for  a  discussion  of  the  proposition. 
Defendant's  argument  concedes  that  if  a  du- 
ty bad  been  violated,  tbe  negligence  claimed, 
if  established,  could  be  imputed  to  tbe  de- 
fendant Hecla  Company. 

On  the  motion  for  an  instructed  verdict  it 
was  claimed  that  there  was  a  fatal  variance 
between  the  allegations  of  tbe  declaration 
and  tbe  proofs,  in  that  plaintiff  alleged  In 
bis  declaration  "that  defendants  had  failed 
to  furnish  fish  plates,  and  the  evidence  shows 
that  they  have  been  furnished,  that  they 
were  lying  at  the  side  of  the  track  at  the 
time  of  tbe  accident,  and  bad  been  tempora- 
rily removed  by  some  one."  The  above  quo- 
tation from  defendant's  brief  does  not  cor- 
rectly state  tbe  allegations  of  the  declara- 
tion criticised. 

The  declaration  charges  that  It  was  de- 
fendant's duty  to  keep  and  maintain  the 
transfer  track  in  a  reasonably  safe  condi- 
tion for  use;  to  provide  and  equip  it  with 
rails  connected  by  fish  Joints  securely  bolted 
to  tbem  with  such  rails  spiked  to  tt>e  ties, 
and  not  to  keep  and  maintain  said  track  in 
an  unsafe  condition  owing  to  tbeir  absence; 
to  warn  and  inform  plaintiff  that  tbe  track 
was  defective  and  unsafe  owing  to  tbe  ai>- 
sence  of  fish  Joints,  and  that  the  rails  wer* 


Digitized  by  VjOOQ  l€ 


212 


122  NOBTHWESTEBN  BBPOBTEB. 


(Mlcb. 


not  secnrely  fastened.  A  continuing  duty  la 
charged  as  resting  upon  defendants  to  keep 
and  maintain  this  track  by  certain  means 
reasonably  safe,  and  a  failure  so  to  do.  This 
is  not  a  charge  of  a  duty  to  furnish  the 
equipment  and  of  a  failure  In  that  regard, 
but  of  a  duty  to  keep  and  maintain  a  safe 
condition  and  a  neglect  In  that  they  care- 
lessly, negligently,  and  wrongfully  kept  and 
maintained  such  track  In  a  defective  and  un- 
safe condition  owing  to  the  absence  of  such 
flsh  Joints,  and  also  failed  to  warn,  plaintiff 
of  such  danger. 

The  proofs  showed  afflrmatlvely  that  the 
flsh  plates  had  been  unbolted  and  taken  off, 
and  were  there  on  the  ground,  and  that  the 
spikes  had  been  drawn  from  one  rail;  that 
this  loose  rail  caused  the  accident,  and  no 
warning  of  the  danger  had  been  given.  The 
proofs  tended  to  show  that  the  rail  had  been 
loosened  In  this  manner  by  the  section  gang, 
between  the  time  the  train  went  over  this 
track  to  place  the  cars  on  the  Detroit  & 
Mackinac  track,  and  its  return  to  the  place 
of  the  accident  The  proofs  as  to  the  cause 
of  the  Injury,  and  the  neglect  causing  the 
same,  are  within  the  allegations  of  the  dec- 
laration. 

Assignments  of  error  relative  to  the  ad- 
mission of  evidence  may  be  grouped.  The 
court  permitted  evidence  wlilch  was  object- 
ed to,  relative  to  the  use  of  the  Hecia  Line 
Company  tracks  by  the  Michigan  Central. 
This  was  material  as  bearing  upon  the  ques- 
tion of. general  railroad  use  and  of  permis- 
sion and  consent  by  defendants  to  such  use, 
and  also  to  show  for  whom  the  work  was 
done  at  the  time  of  the  accident  The  evi- 
dence of  the  use  of  these  tracks  by  the  De- 
troit &  Mackinac  was  material  as  tending  to 
show  that  the  use  of  the  track  was  a  gen- 
eral railroad  use. 

Exceptions  were  taken  to  evidence  allowed 
relative  to  warning  or  notice  given  when  a 
rail  is  in  the  condition  of  the  one  In  ques- 
tion. This  evidence  was  material,  and  prop- 
erly admitted. 

The  remaining  errors  claimed  are  assign- 
ed upon  the  charge  of  the  court  In  the 
principal  brief  defendant  discusses  but  one 
of  these,  viz.,  that  portion  of  the  charge 
relative  to  the  m.easure  of  damages.  Upon 
the  oral  argument  the  following  error  In  the 
charge  was  discussed:  "Because  the  court 
Iiavlng  charged  the  Jury  that  *if  they  found 
that  at  the  time  of  the  accident  the  Michi- 
gan Central  Railroad  was  using  the  trans- 
fer track  for  its  own  purposes,  and  not  for 
the  benefit  of  the  cement  company,  then  the 
cement  company  is  not  liable,'  the  jury 
should  have  found  a  verdict  of  no  cause  of 
action  against  the  Heda  Company  under  the 
evidence  in  the  case." 

The  portion  of  the  charge  quoted  In  this 
assignment  of  error  was  given  at  the  re- 
quest of  appellant.    In  the  argument  of  de- 


fendant in  its  reply  brief  It  Is  contended  that 
this  was  inconsistent  with  other  portions  of 
the  charge.  No  such  contention  is  apparent 
from  the  assignment  Itself,  to  which  the 
court  can  alone  give  attention.  The  objection 
cannot  be  that  It  was  error  to  give  it  as  tliat 
would  be  a  denial  of  its  own  request;  and 
as  no  errors  were  assigned  upon  the  other 
portions  of  the  charge  discussed,  we  will  not 
consider  them.  The  claim,  then,  must  be 
that  under  the  evidence  this  request  as  given 
amounted  to  an  Instructed  verdict  and  the 
court  should  have  set  the  verdict  of  the  Jury 
aside.  Mo  motion  to  set  aside  this  verdict 
was  made.  Courts  except  in  extreme  cases 
do  not  voluntarily  disturb  verdicts  of  Ju- 
ries, and,  under  the  views  herein  expressed 
by  us,  there  would  have  been  no  Justlficatloa 
for  such  action.  The  argument  presented  is 
not  germane  to  the  error  assigned. 

There  remains  the  question  of  the  cor- 
rectness of  the  charge  by  the  court  upon  the 
measure  of  damages.  The  assignment  of 
error  reads  as  follows:  "The  court  erred  In 
Instructing  the  Jury  as  to  the  measure  of 
damages  that  plaintiff  could  be  entitled  to^ 
in  case  they  found  In  his  favor."  In  the 
charge  the  portion  which  considers  the  ques- 
tion of  damages  fills  about  two  printed  pages. 
This  assignment  is  in  effect  a  challenge  to  ev- 
ery utterance  of  the  court  upon  the  subject 
The  rule  that  assignments  of  error  must  be 
specific  Is  well  settled.  It  was  held  in  Wan- 
ner V.  Mears,  102  Mich.  554,  61  N.  W.  2,  that 
an  assignment  "that  the  circuit  Judge  erred 
in  charging  the  Jury  and  In  giving  the  re- 
quests of  plaintiff  found  on  pages  134-140 
of  record"  cannot  be  considered  where  the 
pages  cited  contain  any  statements  by  the 
court  In  which  the  law  is  correctly  stated 
whatever  may  be  said  of  the  rest.  The  as- 
signment in  this  case  is  within  that  decision. 
It  Is  not  claimed  by  the  appellant  that  all  of 
the  charge  of  the  court  upon  the  subject  of 
damages  was  erroneous,  yet  if  the  assign- 
ment is  held  good,  error  could  have  been 
claimed  upon  any  of  the  several  propositions 
of  law  contained  In  It.  This,  we  think,  was 
the  very  fault  which  was  sought  to  be  rem- 
edied by  requiring  such  assignments  to  be 
specific,  and  Is  for  the  protection  of  both 
court  and  counsel.  We  cannot  consider  this 
assignment  of  error,  for  the  reason  that  it  is 
too  general.  A  strict  compliance  with  all 
the  rules  of  practice  must  be  required. 

The  Judgment  of  the  circuit  court  la  af- 
firmed. 


In  re  RICE'S  ESTATE. 

(Supreme  Court  of  Michigan.    July  15,  1900.) 

1.  ExECUTOBS  AND  Admikibtbatobs  (8  35*)— 
Removing  Executor— Estoppel. 

One  petitioning  the  probate  court  to  ap- 
point as  executor  a  person  who  spent  a  part  of 
his  time  in  a  sister  state,  but  who  had  not  tak- 


•Vor  othar  cuu  ms  uma  topic  and  lectton  NUMBBS  in  D«o.  *  Am.  Dici.  U07  to  data,  *  Reportar  Indazas 


Digitized  by  VjOOQ  l€ 


MldL) 


IN  BE  EICE'S  ESTATE. 


213 


en  up  Ms  residence  there,  la  not  estopped  from 
•sking  for  the  removal  of  the  executor  on  proof 
that  he  changed  his  residence  to  the  sister  state 
and  withdrew  the  funds  from  the  jurisdiction  of 
the  court,  and  had  for  more  than  two  years  fail- 
ed to  file  with  the  court  any  account. 

[E>d.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  8  248 ;  Dec.  Dls. 
I35.*J 

2.  EXECUTOBS   AND   ADMINISTRATORS    (g   85*)— 

Eemotai.  07  BxBCUTOB— Grounds. 

Tile  coart  may  remove  an  executor  who 
become*  a  nonresident  and  withdraws  from  the 
Jurisdiction  of  the  court  the  funds  of  the  estate, 
and  who  for  more  than  two  years  has  failed  to 
file  with  the  court  any  account. 

[Eld.  Note.— For  other  cases,  see  Executors, 
and  Administrators,  Cent  Dig.  U  241,  243; 
Dec.  Dig.  i  3S.*] 

8.  Exxavroaa  and  Adunistkatobs  (i  87*)— 
Apfointusnt  of  Administratob. 

The  appointment  of  an  administrator  to 
■uooeed  an  executor  removed  for  good  cause  will 
not  be  disturbed,  where  the  appointment  is  sat- 
isfactorr  to  one  entitled  to  more  than  four- 
fifths  of  the  estate. 

IBH.  Note. — For  other  cases,  see  ESxecutors 
and  Administrators,  Cent.  Dig.  t  276 ;  Dec.  Dig. 
•  87.*] 

Certiorari  to  Circuit  Court,  Musk^on 
County;  Clarence  W.  Sessions,  Judge. 

In  the  matter  of  tbe  estate  of  Robert  Rice, 
deceased.  Certiorari  to  review  an  order  of 
the  circuit  court  afSrmlng  an  order  of  tbe 
probate  court  removing  Robert  B.  Rice  as 
executor,  and  appointing  Stephen  H.  Clink 
as  administrator.    Affirmed. 

Argued  before  OSTRANDER,  HOOKER, 
HcALVAT,  MOORE,  and  BROOKE,  JJ. 

Nlms,  Hoyt,  ErwlD,  Vauderwerp  &  Foote, 
(or  appellants.  Stephen  H.  Clink,  for  appel- 
lee. 

BROOKE,  J.  This  la  certiorari  to  review 
an  order  made  by  tbe  circuit  court  for  tbe 
county  of  Muskegon  affirming  an  order  of 
tbe  probate  court  removing  Robert  B.  Rice  as 
executor  of  tbe  will  of  Robert  Rice,  deceas- 
ed, and  appointing  Stephen  H.  Clink  as  ad- 
ministrator of  the  estate. 

Robert  Rice  died  November  23,  1904,  leav- 
ing a  will,  whereby  bis  estate  was  devised  to 
his  five  children.  Emily  O.  Darby,  one  Of  his 
children,  petitioned  the  probate  court  for 
letters  testamentary  to  be  issued  to  her 
brother,  Robert  B.  Rice.  The  will  was  pro- 
bated in  April,  1905.  At  that  time  Robert  B. 
Bice  bad  some  business  Interests  in  Oregon, 
and  spent  part  of  bis  time  there.  Later,  he 
removed  his  family  to  Oregon,  and  became  a 
resident  of  that  state.  Tbe  estate  was  by 
him  converted  Into  cash,  and  the  money  re- 
fTEltlug  therefrom  was  withdrawn  by  tbe 
executor  from  tbe  Muskegon  Bank  and  de- 
posited in  an  Oregon  bank,  which  failed 
shortly  after  such  deposit  was  made.  It  ap- 
pears that  Emily  Q.  Darby,  a  widow,  had 
resided  with  her  father  and  mother  for  five 
years  prior  to  the  death  of  her  father,  and 
had  taken  such  care  of  them  as  their  age  and 
infirmities  demanded.  Tbe  mother  died  about 


one  year  before  tbe  death  of  the  fatber. 
Mrs.  Darby  filed  a  claim  In  the  probate  court 
for  her  services,  which  was  allowed  in 
March,  1906,  at  tbe  sum  of  $3,558.91.  This 
claim,  with  interest,  now  amounts  to  about 
$4,000,  the  estate,  to  about  $5,000.  The  ex- 
ecutor has  never  filed  an  account  in  the  pro- 
bate court  and  has  never  paid  tbe  said  claim 
or  any  part  thereof.  The  learned  circuit 
Judge  filed  written  findings  of  law  and  fact. 
He  held  that  the  order  of  tbe  probate  Judge 
removing  Robert  B.  Rice  as  executor  and  ap- 
pointing Stephen  H.  Clink  as  administrator 
was  properly  made  and  should  be  affirmed. 

Connsd  for  the  executor  urge  four  reasons 
for  reversing  the  action  of  tbe  court  below, 
as  follows:  (1)  The  circuit  Judge  did  not  de- 
cide the  case  as  upon  a  hearing  and  trial  de 
novo,  but  decided  it  upon  the  question  as  to 
whether  the  probate  court  bad  the  right  and 
authority  to  remove  the  executor,  and  as  to 
whether  the  order  of  removal  was  rightfully 
made,  and  as  to  whether  the  appolntmmt 
made  by  the  probate  court  should  be  disturb- 
ed. (2)  No  showing  was  made  in  the  circuit 
court  for  tbe  removal  of  tbe  executor,  as  Mrs. 
Darby  was  estopped  from  asking  for  tbe  re- 
moval on  the  ground  of  nonresidence.  (8) 
There  was  no  other  showing  before  the  cir- 
cuit court  authorizing  the  executor's  removaL 
(4)  If  tbe  executor  should  have  been  remov- 
ed, some  one  other  than  Mrs:  Darby's  attor- 
ney should  have  been  appointed. 

The  first  contention  is  answered  by  the 
return  to  tbe  writ  wherein  the  learned  circuit 
Judge  says:  "This  respondent  further  re- 
turns that  the  Judgment  in  this  cause  was 
made  and  entered  by  him  upon  the  testimony 
and  showing  made  upon  the  trial  of  tbe  ap- 
peal of  said  matter  on  behalf  of  tbe  petition- 
er Emily  O.  Darby,  and  that  he  did  try  said 
matter  de  novo  ^nd  entered  Judgment  accord- 
ingly." 

We  are  of  tbe  opinion  that  the  second 
ground  Is  untenable.  It  Is  true  that  at  the 
time  the  will  was  admitted  to  probate  Robert 
B.  Rice  spent  a  part  of  his  time  in  Oregon, 
but  the  record  shows  that  be  did  not  take 
up  his  residence  there  with  bis  family  until 
some  time  after  he  became  executor.  We 
think  that  bis  change  of  residence,  coupled 
with  the  fact  that  tbe  funds  of  the  estate 
were  by  him  withdrawn  from  tbe  Jurisdiction 
of  tbe  court,  and  tbe  further  fact  that  for 
more  than  two  years  be  bad  failed  to  file 
with  the  probate  court  any  account  of  his 
dealings  with  the  estate,  afiForded  ample 
ground  for  his  removal  as  executor. 

As  to  the  third  reason  urged,  we  are  of  the 
opinion  that  no  good  reason  is  shown  why 
the  appointment  of  Stephen  H.  Clink  should 
be  disturbed.  He  Is  attorney  for  Emily  G. 
Darby,  who  is  entitled  to  somewhat  more 
than  four-fifths  of  the  estate,  nearly  all  of 
which  belongs  to  her  in  her  character  as  sole 
creditor  of  the  estate.    She  being  the  one 


•Far  Mliar  eaaaa  ■«•  same  topic  and  MCtloo  NUMBER  In  Dec.  *  Ain.  Dlgi.  U07  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


214 


122  NORTHWESTERN  REPORTER. 


(Illcb. 


most  largely  beneficially  Interested,  and  the 
appointment  of  Clink  being  satisfactory  to 
ber,  it  should  stand  in  the  absence  of  other 
treasons  militating  against  it  See  In  re 
Sprague  Estate,  125  Mich.  357,  365,  84  N.  W. 
293,  and  cases  cited  of  that  opinion. 
Judgment  affirmed. 


WYOMING  TP.  et  al.  ▼,  STUART,  Judge. 
(Supreme  (Tourt  of  Michigan.    July  15,  1909.) 

1.  Injunction  (5  135*)  —  PaixnaNABT  In- 
junction—Discbetion  OF  Ck)UBT. 

The  allowance  of  a  preliminary  injunction 
ia  within  the  discretion  of  the  trial  judge. 

lEA.  Note.— Fox  other  cases,  see  Injunction, 
CSt.  Dig.  f  304;    Dec.  Dig.  {  135.*] 

2.  MaNDAUUS  (§  37*)— COMPELUNO  GSANTINO 

OF  Temfobabt  Injunction. 

Mandamus  does  not  lie  to  compel  the  trial 
Judge  to  grant  a  temporary  injunction  in  a 
■ait  to  restrain  a  city  from  continuing  to  dis- 
charge its  sewage  through  existing  sewers  into 
a  river. 

(Ed.  Note.— For  other  cases,  see  Mandamus, 
Cent.  Dig.  {  81;   Dec.  Dig.  %  37.*] 

Mandamus  by  the  Township  of  Wyoming, 
represented  by  Nlchol  D.  Emmons,  Bupei> 
Tlsor,  and  others,  against  William  J.  Stuart, 
Judge  of  the  Superior  Court  of  Grand  Rap- 
Ids,  to  compel  respondent  to  grant  a  tempo- 
rary Injunction.    Denied. 

Argued  before  BLAIR,  C.  J.,  and  HOOK- 
ER, MOORE.  McALVAT,  and  BROOKE,  JJ. 

Roger  I.  Wykes,  for  relators.  Moses  Tag- 
gart  and  Raymond  Ferguson  (Taggart  & 
Toggart,  of  counsel),  for  respondent 

HOOKER,  J.  The  Attorney  General,  up- 
on the  relation  of  the  officers  of  the  town- 
ship of  Wyoming  and  two  private  persons, 
residents  of  said  township,-  filed  an  infor- 
mation to  restrain  the  city  of  Grand  Rapids 
from  making  use  of  a  sewer  recently  con- 
structed In  said  city  for  the  purpose  of  con- 
Teying  garbage  and  night  soil,  systematical- 
ly collected  by  said  city  from  districts  not 
provided  with  sewers,  and  from  extending 
its  sewer  system,  and  to  restrain  it  from 
continuing  to  discharge  its  sewage  through 
existing  sewers  Into  Grand  river.  The  in- 
formation prayed  a  temporary  injunction, 
which,  upon  the  hearing  of  an  order  to  show 
cause,  the  learned  judge  of  the  recorder's 
court  denied.  Counsel  for  the  Informant 
ask  a  mandamus  to  compel  the  judge  of  the 
recorder's  court  to  vacate  such  order,  and 
allow  an  injunction  preventing  the  further 
extension  of  sewera  and  the  use  of  said 
Prescott  sewer  for  the  purpose  mentioned 
pending  this  litigation. 

Counsel  for  the  informant  contend  that 
his  clients  are  entitled  to  the  allowance  of  a 
preliminary  injunction  as  matter  of  right: 
arguing  that  the  preservation  of  the  status 
quo  is  no  hardship.     A  preliminary  injunc- 


tion Is  In  no  sense  a  writ  of  right  Its  al- 
lowance is  a  matter  within  the  discretion  of 
the  trial  judge,  and  as  was  said  by  Mr.  Jus- 
tice Campbell  in  Torrent  t.  Muskegon,  47 
Mich.  115,  10  N.  W.  132,  41  Am.  Rep.  715, 
and  quoted  approvingly  In  the  late  case  of 
Slegel  v.  Wayne  Circuit  Judge,  119  N.  W. 
645:  "We  feel  it  our  duty  to  refer  to  the 
danger  of  interfering  In  the  outset  of  a  caae 
by  Injunction  where  delay  may  work  great 
damage  without  making  full  provision  for 
redress  by  an  adequate  bond.  Defendants 
ought  not  to  be  subjected  by  the  machinery 
of  law  to  Irreparable  mischief."  And  In  the 
latter  case  Mr.  Justice  Brook  said  that  "the 
discretion  of  a  Circuit  Judge  In  the  iBsnance 
and  continuance  In  toTCfi  of  a  temporary  In- 
junction ought  not  to  be  lightly  interfered, 
with."  While  we  have  Interfered  to  compel 
the  vacation  of  orders  allowing  injunctions, 
where  the  discretion  was  clearly  abused,  the 
cases  have  been  rare  in  which  we  have 
compelled  the  allowance  of  such  writs.  But 
aside  from  this  question,  the  effect  of  the 
allowance  of  this  Injunction  would  subject 
the  people  of  Grand  Rapids  to  a  most  seri- 
ous Inconvenience,  and  we  agree  with  the 
learned  judge  who  denied  the  order  that  the 
relief  prayed  should  not  have  been  granted, 
and  he  did  not  err  in  denying  It. 

The  writ  Is  denied,  with  costs  against  the 
relators. 


SEELET  V.  CHICAGO,  D.  &  C.  G.  T.  J.  RT. 
CO.  et  al. 

(Supreme  Court  of  Michigan.    July  15,  1909.) 

Railboads  (J  276*)— Injubies  to  Tbespass- 
EBS- Children  Plating  in  Yards. 

While  a  switch  crew  was  switching  cars  in 
a  railroad  yard,  the  engine  pulling  two  loaded 
cars  and  pushing  a  flat  car  eastward,  three  boys, 
including  deceased,  who  was  eight  years  of  age, 
got  OQ  the  flat  car.  One  of  the  boys  got  on  top, 
and  the  other  boy  and  deceased  stood  on  the 
southwest  end  with  their  fpet  on  the  brake 
beam,  and  grasping  the  handholds.  After  pla- 
cing a  coal  car,  the  engine  started  to  back  up, 
and  deceased  in  attempting  to  .lump  fell  under 
the  wheels,  and  was  killed.  Beld,  that  there 
could  be  no  recovery  for  his  death. 

[Ed.  Note. — For  other  cases,  see  Railroads, 
Cent.  Dig.  §§  8S0-883;   Dec.  Dig.  i  27(5.*] 

Error  to  Circuit  Court,  St  Clair  County; 
Harvey  Tappan,  Judge. 

Action  by  William  H.  Seeley,  administrator 
of  Charles  H.  Seeley,  deceased,  against  the 
Chicago,  Detroit  &  Canada  Grand  Trunk 
Junction  Railway  Company  and  another  for  a 
wrongful  death.  There  was  a  judgment  for 
plaintiff,  and  defendants  bring  error.  Re- 
versed. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Harrison  Geer  (W.  K.  Williams,  of  coun- 
sel), for  appellants.  William  H.. Simpson,  for 
appellee. 


*ror  otber  casei  aee  same  topic  and  section.  NUMBER  IB  Dec.  *  Am.  Dtt*.  1907  to  date,  ft  Reporter  IndezM 


Digitized  by  VjOOQ  l€ 


Ulcb.) 


PATTINSON  V.  FLAYER. 


215 


GRANT,  J.     Plaintiff's  decedent,   a   boy 
eight  years  and  tbree  months  old,  was  play- 
ing with  four  other  boys  in  a  puddle  ot  water 
on  Stone  street,  in  the  city  of  Port  Huron, 
opposite  the  yard  of  the  defendants'  tracks. 
Stone  street  runs  north  and  south.    The  rail- 
road tracks  cross  the  street  diagonally  In  an 
easterly  and  westerly  direction.   Tbree  tracks 
cross  the  street.     These  tracks  east  of  the 
road  immediately  branch  ofT  into  side  tracks, 
reaching    manufactories    located    along    the 
tracks  to  the  eastward.   The  boys  were  in  the 
road  south  of  the  track.    A  switch  crew  was 
engaged  in  switching  cars.     The  switch  en- 
gine was  pulling  two  loaded  cars  and  shov- 
ing a  flat  car  to  the  eastward.    Three  of  the 
boys.  Including  the  deceased,  ran  to  the  fiat 
car  in  the  attempt  to  get  a  ride.    One  of  the 
boys  testified  that  he  got  on  top  of  the  car. 
The  other  boy  and  the  deceased  stood  with 
tbelr  feet  on  the  brake  beam,  grasping  the 
handholds  on  the  southwest  end  of  the  car. 
The  distance  from  the  handholds  to  the  brake 
beam  was  two  feet  and  ten  inches.     After 
placing  a  coal  car  for  the  Minnesota  Coal 
Company,  the  engine  started  to  back  up.    The 
boy  on  the  flat  car  Jumped  off,  one  upon  the 
brake  beam  Jumped  off  safely,  bat  the  de- 
ceased in  attempting  to  Jump  fell  under  the 
wheels,  and  was  killed. 

Extended  discussion  is  unnecessary.  The 
case  Is  expressly  ruled  against  the  plaintiff 
by  Katzinskl  t.  Railway  Co.,  141  Mich.  75, 
1(H  N.  W.  409,  and  Hamilton  v.  D..  G.  H.  & 
M.  Ry.  Go.,  142  Micb.  56,  105  N.  W.  82,  and 
authorities  there  cited.  Bee,  also,  Chicago, 
etc.,  Ry.  Co.  V.  Smith,  46  Mich.  604,  9  N.  W. 
830,  41  Am.  Rep.  1T7;  Peninsular  Trust  Co. 
T.  aty  of  Grand  Rapids,  131  Mich.  571,  02 
N.  W.  3& 

Judgment  reversed,  and,  inasmuch  as  no 
different  state  of  facts  can  be  shown  upon 
a  new  trial,  none  will  be  ordered. 


PATTINSON  V.  FLATER. 
(Supreme  Court  of  Michigan.     July  15,  1900.) 

1.  Justices   or  the  Peace  (|   140*)— Judg- 
ment—Execittion— Appeal. 

Comp.  lAws,  i§  860,  861,  providing  for  the 
immediate  issue  of  execution  after  judgment  is 
(Dtered  in  certain  cases,  do  not  cut  oS  the  ri^ht 
of  appeal  from  a  justice's  judgment  on  which 
(xecntion  is  issued,  given  by  the  general  statute. 
[Ed.  Note.— For  other  cases,  see  Justices  of 
the  Peace,  Cent.  Dig.  {  4C6;   Dec.  Dig.  i  140.*] 

2.  StATtrrKS   (|   163*)— Inconsistent   Pbovi- 
Bions— Okneral  and  Local  Act. 

Where  there  is  inconsistency  between  a  gen- 
enl  law  and  a  later  local  act,  the  latter  will  be 
regarded  as  a  modification  of  or  exception  to 
the  earlier  one. 

IKd.    Note.— For   other   cases,    see    Statutes, 
Cent  Dig.  S  238;  Dec.  Dig.  i  163.*] 

3.  JcsncBS  OT  THE  Peace  (8  163*)— Appeal— 
Judomeht—tTbanscbipt— Vacation. 

Loc.  Acto  1903,  p.  543,  No.  475,  relating  to 
the  JQstices  of  the  peace  in  the  city  of  Detroit, 


section  21  provides  for  motions  for  a  new  trial 
within  five  days  after  a  verdict  or  judgment,  and 
declares  that  the  time  for  an  appeal,  if  such  mo- 
tion be  not  granted,  shall  run  from  the  time  the 
motion  is  overmled,  and  that  the  pendency  of 
such  motion  shall  not  stay  the  issue  and  levy  of 
an  execution,  but,  if  the  levy  is  made  pending 
such  motion,  no  sale  of  the  property  levied  on 
shall  be  made  until  the  final  determination  of 
the  motion.  Held  that,  where  a  transcript  is 
taken  from  a  justice's  judgment,  and  an  execu- 
tion issued  before  the  time  for  a  new  trial  has 
expired,  such  transcript  may  be  vacated  when 
an  appeal  is  taken  under  such  act. 

[Ed.  Note. — For  other  cases,  see  Justices  of 
the  Peace,  Cent.  Dig.  i  606 ;   Dec.  Dig.  S  163.*] 

Certiorari  to  Circuit  Court,  Wayne  Coun- 
ty;  Alfred  J.  Murphy,  Judge. 

Action  by  Nellie  M.  Pattlnson  against  Sol- 
omon P.  Flayer.  A  Justice's  Judgment  in 
favor  of  plaintiff  was  set  aside  on  uppesil  to 
the  circuit  court,  and  plaintiff  brings  cer- 
tiorari.   Affirmed. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE;  JJ. 

O.  Lewis  Carter  (A.  W.  Sempllner,  of 
counsel),  for  appellant  Friedman  &  Smil- 
ansky,  for  appellee. 

MOORB,  J.  Plaintiff  sued  the  defendant 
in  the  Justice's  court  for  the  city  of  Detroit, 
and  obtained  judgment  for  $109.25  on  the 
21st  day  of  January,  1908.  On  the  2Sth  day 
of  January,  1908,  she  filed  a  proper  affidavit 
under  the  general  statute,  and  obtained  a 
transcript  of  said  Judgment,  which  was 
docketed  with  the  clerk  of  the  circuit  court 
for  the  county  of  Wayne.  Upon  the  25th 
day  of  January,  1908,  a  motion  for  a  new 
trial  was  made  in  the  Justice's  court  in  said 
cause  by  defendant,  which  motion  was  on 
January  31,  1908,  denied.  On  January  31, 
1908,  the  defendant  appealed  said  cause  to 
the  circuit  court  for  the  county  of  Wayne. 
An  execution  and  an  alias  execution  were 
issued  under  said  transcript,  but  no  proceed- 
ings were  had  thereunder,  OB  action  was 
stayed  by  the  circuit  court.  Two  motions 
were  made  to  stay  the  execution,  and,  under 
a  stipulation  filed,  they  were  regarded  as  a 
motion  made  to  vacate  the  Judgment  entered 
upon  the  transcript,  and  the  said  Judgment 
transcript  and  the  transcript  were  vacated. 
It  is  sought  to  review  this  action  in  this  pro- 
ceeding. Counsel  for  plaintiff  say  the  only 
question  in  issue  is  whether  a  valid  tran- 
script could  be  taken  on  January  28th,  and. 
If  taken,  should  have  been  set  aside. 

Counsel  for  defendant  suggests  that  there 
is  another  question,  to  wit:  Can  a  transcript 
of  a  Justice  court  Judgment,  Issued  by  virtue 
of  section  845  of  the  Michigan  Compiled 
Laws  of  1807,  cut  off  the  right  to  appeal  or 
render  nugatory  an  appeal  even  though  tak- 
en by  virtue  of,  and  in  strict  accordance 
with.  Act  No.  475  of  the  Local  Acts  for  1903? 

The  provisions  of  the  general  law  in  rela- 
tion to  transcripts  from  Justice's  court  which 
have  been  In  force  a  great  many  years  are 


fit  atber  ease*  lee  >ame  topic  and  section  NUMBER  In  Dec.  ft  Am.  Dlg'a.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  LjOOQ  IC  . 


216 


122  NORTHWESTBBN  REPORtEB. 


(Mlcb. 


to  be  found  In  Bectlons  845,  846,  847,  C!omp. 
L>aw8. 

Sections  756,  860,  861,  C!omp.  Laws,  pro- 
vide for  the  immediate  Issue  of  execution 
after  the  Judgment  is  entered  In  certain 
cases.  Our  attention  has  not  been  called  to 
any  case  holding  that  the  sections  of  the 
statute  last  at)ore  named  would  cut  ofC  the 
right  of  appeal  given  by  the  general  Statute. 

Act  No.  475,  p.  543,  of  the  Local  Acts  of 
1903,  relates  to  the  justices'  courts  in  the 
city  of  Detroit  Section  21  provides  as  fol- 
lows: "The  Justice  before  whom  any  case 
has  bem  tried,  and  verdict  or  Judgment  ren- 
dered, shall  have  the  same  power  and  au- 
tbori^  to  set  aside  the  verdict  or  Judgment, 
and  grant  a  new  trial  therein  upon  legal 
cause  shown  therefor,  as  the  circuit  courts 
of  the  state  possess:  Provided,  that  a  mo- 
tion in  writing  be  made  and  filed  with  the 
clerk  of  said  Justices'  courts  within  five  days 
after  the  rendition  of  verdict  or  Judgment  In 
said  case.  Said  motion  shall  briefly  and 
plainly  set  forth  the  reasons  and  grounds 
upon  which  It  Is  made.  Affidavits  upon 
which  the  motion  is  founded  shall  also  be 
filed  at  the  time  of  filing  said  motion,  and 
notice  of  the  hearing  of  such  motion,  with 
a  copy  of  the  motion,  and  affidavits  filed  as 
aforesaid,  shall  be  served  upon  the  adverse 
party,  or  his  attorneys  at  least  two  days  be- 
fore the  hearing  thereof.  Such  motion  shall 
be  determined  within  two  days  after  the 
same  shall  have  been  heard  and  submitted, 
and  such  motion  shall  be  submitted  within 
one  week  after  the  same  shall  have  been 
filed.  The  time  for  taking  an  appeal  from 
judgment  In  case  such  motion  be  not  grant- 
ed, shall  begin  to  run  from  the  time  when 
such  motion  shall  be  overruled.  In  no  case 
shall  the  pendency  of  such  motion  stay  the 
issuing  and  levy  of  an  execution  In  such 
case;  but  in  case  of  a  levy  under  execution 
pending  such  motion,  no  sale  of  the  property 
so  levied  on  shall  be  advertised  or  made  un- 
til the  final  determination  of  such  motion." 

There  is  no  ambiguity  In  this  language. 
The  contention  of  the  plaintitT  Involves  the 
holding  that  there  is  an  Inconsistency  be- 
tween the  provisions  of  the  general  law  and 
of  the  local  act  which  Is  the  later  act  In 
such  a  case  the  later  statute  would  be  re- 
garded as  a  modification  or  exception  to  the 
earlier  one.  See  Sutherland  on  Statutory 
Construction  (2d  Ed.)  at  page  465:  "Incon- 
sistency between  two  statutes  or  special  pro- 
visions in  order  to  avoid  a  repeal  by  Impli- 
cation Is  sometimes  so  treated  that  the  later 
statute  or  provision  Is  regarded  as  modifying 
the  earlier  in  some  particular  respect,  or 
taking  certain  things  out  of  its  operation,  as 
an  exception  to  it  •  •  •  Upon  the  ground 
of  clearly  express  Intention,  It  Is  obvious 
that  the  terms  of  a  later  special  act  must 
contral  those  of  a  prior  general  one,  and 
that  where  they  are  positively  repugnant  not 
merely  cumulative  or  auxiliary,  the  former 


must  repeal  the  latter  to  the  extent  of  such 
repugnancy  and  within  the  limits  asslsned  to 
the  operation  of  the  special  law."  EJndllcb 
on  Int  of  Stat  {»  215-216. 

It  Is  not  necessary  to  say,  and  we  do  not 
say,  that  a  transcript  from  the  Justice's 
court  In  Detroit,  taken  according  to  the 
terms  of  the  general  law,  and  before  the 
time  in  which  a  motion  for  a  new  trial  might 
be  made  and  decided,  is  prematurely  taken, 
but  we  do  hold  that  a  Judgment  based  upon 
such  transcript  may  be  vacated  when  an  ap- 
peal Is  taken  within  the  terms  of  the  local 
act 

The  order  made  by  the  circuit  Judge  is  af- 
flfmed* 


SDCHOCKI  V.  CALUMET  INS.  CO. 
(Supreme  Court  of  Micblgan.     July  15,  1909.) 
Appeal  ano  Ebrob  (§  654*)— Aiibrdiieitt  or 

Biix  or  Exceptions  in  Appellate  Coubt. 
In  an  action  on  a  fire  policy,  a  verdict  was 
directed  for  defendant  because  of  the  conveyance 
by  bin  of  sale  of  an  interest  in  the  property  to 
secnre  payment  of  a  loan  after  the  policy  was 
Issued,  uud  before  the  fire.  The  bill  of  sale  was 
desiKiiatod,  when  offered  in  evidence  as  "Exhib- 
it B,"  and  an  affidavit  attached  thereto  as  "Ex- 
hibit D."  The  trial  judge  refused  to  certify  the 
bill  of  exceptions  wiuiout  the  bill  of  sale  whif^h 
plaintifJE  in  error  agreed  to  incorporate,  where- 
upon the  judge  signed  a  certificate  with  the 
words  "With  entire  Exhibit  D  attached."  Plain- 
tiff in  error  attached  the  affidavit,  but  failed  to 
attach  the  bill  of  sale.  Held,  that  defendant  in 
error  was  entitled  to  have  the  bill  of  exceptions 
amended  so  as  to  bring  up  the  bill  of  sale. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  i  2819:   Dec  Dig.  |  654.*] 

Action  by  Wladlslaus  Suchockl  against  the 
Calumet  Insurance  Company.  Judgment  for 
defendant,  and  plalntUT  brings  error.  On 
motion  to  amend  bill  of  exceptions.    Granted. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McALVAX,  and  BROOKE,  JJ. 

Russel,  Campbell,  Bulkley  &  Ledyard,  for 
the  motion.    Dohany  &  Dohany,  opposed. 

OSTRANDER,  J.  This  is  a  motion  made 
by  the  appellee  to  compel  the  plaintiff  and 
appellant  to  add  to  the  return  of  the  writ 
of  error  and  to  the  printed  record  a  bill  of 
sale,  copy  of  which  is  attached  to  the  motion. 
In  the  court  below  a  verdict  was  directed 
for  the  defendant  It  was  directed  because 
the  bill  of  sale  in  question  had  been  given 
by  the  plaintifF  and  his  wife  after  the  pol- 
icy was  issued,  and  before  the  fire ;  It  being 
a  conveyance  of  some  of  the  Insured  prop- 
erty to  secure  the  payment  of  a  loan.  When 
the  bill  of  exceptions  was  presented  for  set- 
tlement counsel  for  appellee  objected  to  its 
settlement  unless  the  bill  of  sale  was  indnd- 
ed.  Counsel  for  both  parties  were  heard 
upon  the  subject,  and  the  circuit  Judge  re- 
fused to  sign  the  bill  of  exceptions  unless 
said  bill  of  sale  was  incorporated  therein. 
Thereupon  counsel  for  the  appellant  agreed 


•For  other  casM  ie«  urn*  topic  and  aecUon  NUMBER  In  Deo.  tt  Am.  Digs.  1907  to  dat«,  *  Reporter  IndexM 


Digitized  by  VjOOQ  IC 


Mlcb.) 


NICHOLS  V.  BUELU 


217 


to  Incorporate  the  bill  of  sale  in  tbe  bill  of 
exceptions,  relying  npon  which  the  drcnit 
Judge,  in  hla  certificate  to  the  bill  of  excep- 
tions, employed  the  words:  "With  entire 
Exhibit  D  attached" — meaning,  and  counsel 
could  not  have  misunderstood  it,  the  bill  of 
Bale  and  the  affidavit  attached  thereto.  The 
record  has  been  brought  into  this  court  by 
the  writ  of  error,  and  has  been  printed. 
The  said  bill  of  sale  does  not  appear  In  the 
return  or  In  the  printed  record.  An  affldayit 
which  was  attached  to  a  copy  of  the  bill  of 
■ale,  and  which  was  marked  "Exhibit  D"  by 
the  stenographer  in  the  court  below  does  ap- 
pear in  the  printed  record,  and  it  Is  claimed 
that  the  agreement  of  counsel  to  attach  all  of 
E<xbibit  D  to  the  bill  of  exceptions  has  been 
performed  by  attaching  the  affidavit.  It  is 
true  that  the  bill  of  sale  to  which  the  affi- 
davit was  attached  was  marked  in  the  court 
J>elow  "Exhibit  B,"  and  that  the  plaintUT, 
upon  its  being  exhibited  to  him,  declined  to 
admit  that  It  was  an  instrument  executed  by 
himself,  but  did  admit  his  signature  to 
the  affidavit  marked  "Exhibit  D"  attached 
to  the  said  instrument 

The  merits  of  the  case  ar&  not  befbre  us. 
We  are  satlsfled  that  the  bill  of  exceptions 
returned  to  this  court  and  printed  is  not 
the  bill  of  exceptions  which  the  circuit 
judge  settled.  We  are  satisfied,  also,  that 
counsel  for  the  appellant  understood  that  in 
nsing  the  term  "Exhibit  D"  in  the  certificate 
to  the  bill  of  exceptions  the  court  meant,  not 
tiie  affidavit  alone,  but  the  affidavit  and  the 
bUl  of  sale  to  which  it  was  attached. 

The  motion  is  granted,  with  costs. 


NICHOLS  V.  BUELL  et  al. 
(SnpKme  Court  of  Michigan.    July  15,  1909.) 

1,  PARTREB8HIP  (t  42*)— ObGANIZAHON— LlA- 

BiLrrr  of  Pbomotebs. 

Promoters  of  a  partnership  association,  lim- 
ited, who  executed  articles  of  association,  which 
were  not  recorded  as  reqnired  by  law,  are  lia- 
ble as  partners  for  fraud  in  the  furtherance  of 
the  scheme. 

[Ed.  Note.— For  other  cases,  see  Partnership, 
Cent  Dig.  §  57 ;   Dec.  Dig.  ^  42.*] 

2.  JoiwT- Stock  Coufaniks  (S  6*)— Oboaniza- 
noK— Fraud  of  Pbomotebs— Evidence. 

Evidence  held  to  show  that  the  promoters  of 
a  limited  partnership,  who  executed  articles  of 
association  which  were  not  recorded  as  required 
by  law,  were  guilty  of  fraud  in  inducing  one  to 
•nbacribe  and  pay  for  stock,  authorizing  relief. 

[Bd.  Note. — For  other  cases,  see  Joint-Stock 
Companies,  Dec.  Dig.  S  6.*] 

8.    joiHT- Stock  Coicpariks  (i  6*)— Oboaniza- 
noH— Fbaud  of  Pbouotebs— Estoppel. 
One  dealing  with  individuals  as  a  partner- 
ship association,  limited,  is  not  estopped  from 
denying  the  existence  of  the  association  because 
of  ue  failure  to  record  the  articles  of  associa- 
tion, and  he  may  sue  the  individuals  for  fraud 
In  inducing  him  to  subscribe  and  pay  for  stock. 
[Bid.  Note.— For  other  cases,  see  Joint-Stock 
Companies,  Dec.  Dig.  S  6.*] 


4.  JomT-STOcK  CoifFAims  (i  7*)— Oboaniza- 
TiON— Fbaud— JuBiBDicTiON  or  Equitt. 
Eqnity  may  cancel  a  certificate  of  stock  in 
an  alleged  partnership  association,  limited,  on 
the  ground  of  fraud,  and  award  damages  for 
the  fraud  as  between  complainant  and  defend- 
ants, who  were  the  promoters  of  the  partner- 
ship, without  determining  the  rights  of  existing 
creditors. 

[Ed.  Note.— For  other  cases,  see  Joint-Stock 
Companies,  Dec.  Dig.  {  7.*] 

Appeal  from  Circuit  Court,  Branch  County, 
in  Chancery;   Qeorge  L.  Yaple,  Judge. 

Suit  by  Morey  A.  Nichols  against  Darlua 
D.  Buell  and  others.  From  a  decree  for  com- 
plainant, defendants  appeal.    Affirmed. 

Argued  before  BLAIR,  O.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDER,  and  HOOK- 
ER. JJ. 

Frank  B.  R^nolds  (John  B.  Sbipman  and 
Mark  S.  Andrews,  of  counsel),  for  appellants. 
Jonathan  Palmer,  Jr.  (Elbridge  F.  Bacon 
and  Campbell  &  Johnson,  of  counsel),  for  ap- 
pellee. 

HOOKER,  J.  Defendants  associated  in  a 
common  enterprise  at  the  suggestion  of  John- 
son, one  of  their  numl)er.  The  scheme  was 
to  form  a  partnership  association,  limited, 
for  the  manufacture  and  sale  of  yeast  cakes. 
On  June  6,  1902,  they  held  a  meeting,  and  ex- 
ecuted alleged  articles  of  association.  These 
were  never  filed  or  recorded  as  required  by 
law,  and  have  been  lost  or  suppressed,  prob- 
ably by  Johnson,  who  was  named  as  secre- 
tary, and  with  whom  they  remained  after 
the  meeting.  Oral  testimony  of  the  contents 
was  given  by  a  lawyer  who  drew  them.  The 
capital  stock  was  made  $400,000,  divided 
into  shares  of  $100  each,  $115,000  of  which 
was  said  to  be  "paid  in,  and  to  be  paid"  as 
follows;  1.  e.,  all  of  the  $115,000  was  stated 
to  be  paid  in,  in  personal  property,  except 
$5,250,  which  was  to  be  paid  in  cash,  when 
It  should  be  called  for.  The  personal  proper- 
ty was  set  forth  as  follows:  "Schedule  A, 
heretofore  referred  to,  and  which  is  made  a 
part  of  these  articles,  is  as  follows,  to  wit: 
Trade-marks,  processes  and  devices,  chemical, 
mechanical  and  scientific,  for  the  manufac- 
ture of  pure  food  and  dry  yeast  cakes  and 
other  cereals.  Inventions,  mechanical  and 
scientific,  of  machinery  and  appliances  and 
combinations  of  the  same,  for  the  manufac- 
ture of  pure  food  and  dry  yeast  cakes  from 
cereals.  Certain  machinery,  rollers,  cookers, 
bakers,  dryers,  etc.,  now  in  the  city  of  De- 
troit, Michigan,  completed  and  in  process  of 
completion.  A  certain  contract  of  employ- 
ment for  five  years  with  an  expert  manufac- 
turer of  pure  food  and  dry  yeast  cakes  from 
cereals,  ail  of  the  collective  value  of  one 
hundred  and  nine  thousand  seven  hundred 
and  fifty  dollars  ($109,750.00).  The  total 
paid-up  capital  is  one  hundred  and  fifteen 
thousand  dollars  ($115,000.00),  the  remaining 
two  hundred  and  eighty-five  thousand  dol- 


•For  other  oasai  bm  lam*  topic  Bud  lecUon  NITUBER  In  Deo.  *  Am.  Digs.  U07  to  data,  *  Reporter  Indexei 


Digitized  by  VjOOQ  l€ 


218 


122  NORTHWESTERN  REPORTER. 


(Hlcb. 


Ian  ($285,000.00)  of  the  capital  sto(&  of  rbU 
association  remains  in  the  treasury  to  be 
disposed  of  from  time  to  time,  and  to  be  ap- 
plied to  the  purposes  of  and  for  the  promo- 
tion of  the  Interests  of  the  association.  The 
value  hereby  placed  on  the  property  placed 
in  the  schedule  Is  the  agreed  and  appraised 
value  of  such  property  collectively  by  all  the 
members  subscribing  to  the  capital  stock  of 
this  association,  and  the  subscriptions  of  said 
parties  to  said  capital  stock  signifies  their 
approval  of  said  value."  The  $115,000  of 
stock  was  divided  between  the  defendants 
In  lots  of  $10,000.  Geol  Oakes  (not  a  party 
to  this  record  for  some  unexplained  reason) 
received  $6,000. 

The  plan  of  these  defendants  was  to  ob- 
tain this  stock  at  a  cost  of  5  per  cent,  par 
value,  vrhlch  was  all  they  paid  or  contribut- 
ed, and  depend  upon  sales  of  treasury  stock 
for  a  working  capital,  and  they  proceeded  to 
make  such  sales  forthwith.  A  glowing  ac- 
count of  the  new  company  and  its  prospects 
was  published,  and  within  a  few  days  sales 
were  made,  complainant  subscribing  for  50 
shares  in  writing  as  follows:  "Union  City, 
Mich.,  June  10,  1902.  I  hereby  subscribe  for 
fifty  (50)  shares  of  $100  each  of  the  capital 
stock  of  the  'Peerless  Teast  Company,  Ltd.' 
of  Union  City,  Michigan,  and  agree  to  pay 
$25.00  per  share  for  same  to  the  treasurer 
of  said  company  when  called  upon  by  the 
treasurer  for  such  payments.  M.  A.  Nichols." 
He  paid  $1,250  in  cash  therefor,  and  received 
a  certificate  as  follows:  "Incorporated  under 
the  Laws  of  the  State  of  Michigan.  No.  21. 
Shares  50.  The  Peerless  Yeast  Company, 
Limited,  Union  City,  Mich.  Capital  Stock, 
$400,000.  This  certifies  that  Morey  A.  Nich- 
ols Is  the  owner  of  fifty  shares  of  one  hun- 
dred dollars  each  of  the  capital  stock  of  the 
Peerless  Teast  Company,  Limited,  fully  paid 
and  nonassessable  transferable  only  on  the 
books  of  the  corporation  by  the  holder  here- 
of in  person  or  by  attorney  upon  surrender 
of  this  certificate  properly  Indorsed.  In  wit- 
ness whereof,  the  said  corporation  has  caus- 
ed this  certificate  to  be  signed  by  its  duly 
authorized  ofilcers  and  to  be  sealed  with  the 
seal  of  the  corporation  at  Union  City,  Mich. 
This  Cth  day  of  August,  A.  D.  1902.  The 
Peerless  Teast  Company,  Ltd.,  Union  City, 
Michigan.  [Seal.]  D.  D.  Buell,  President. 
Holmes  W.  Johnson,  Secretary.  Shares  $100 
each." 

Complainant  filed  the  bill  in  this  cause  for 
a  cancellation  of  this  Instriiment,  and  to  re- 
cover the  amount  paid  by  him,  on  discover- 
ing that  articles  were  not  filed,  upon  the 
ground  that  he  was  defrauded  by  the  de- 
fendants in  this  transaction,  alleging  and 
producing  testimony  tending  to  prove  that 
the  defendants  represented  to  him  that  they 
paid  25  per  cent,  of  the  par  value  of  their 
stock  "the  same  as  he  did,"  and  that  they 
were  a  partnership  association  limited ;  that 
they  had  each  subscribed  for  stock  in  the 
Identical  form  asked  of  him,  and  the  sub- 


scriptions were  exhibited  to  him  by  Johnson. 
His  subscription  was  made  June  10,  1902. 
The  learned  clrcnlt  Judge  sustained  his  con- 
tention and  granted  him  the  relief  prayed, 
and  the  defendants  (with  the  possible  excep- 
tion of  Johnson,  against  whom  the  bill  is 
taken  as  confessed)  have  appealed. 

The  proofs  show  that  all  of  the  defend- 
ants Joined  In  the  promotion  and  attempted 
organization  of  the  company.  Johnson,  who 
professed  to  own  the  property  mentioned  in 
Schedule  A,  arranged  with  his  codefendants 
for  the  floating  of  the  project,  and  It  was 
agreed  that  they  should  subscribe  for  their 
respective  shares,  that  but  25  per  cent,  of  the 
par  value  should  be  assessed,  and  that  of 
this  20  per  cent  of  the  par  value  should  be 
credited  upon  such  subscriptions  as  their  re- 
spective shares  of  the  property  and  rights 
included  in  Schedule  A,  which  he  was  to 
furnish.  There  Is  testimony  showing  that 
Johnson  led  complainant  to  believe  that  the 
defendants  had  paid  the  same  price  for  stock 
that  he  was  asked,  and  he  had  no  intimation 
that  but  5  per  cent,  had  been  paid  In  cash. 
The  property  mentioned  In  Schedule  A  Is 
shown  to  have  been  of  very  little,  if  any, 
value.  There  was  no  machinery  belonging 
to  Johnson,  no  trade-marks  or  devices  of  any 
value.  It  is  claimed  that  Johnson  had  a 
fonnnla  for  making  yeast  cakes,  but  it  was 
never  communicated  to  any  one  else,  and 
there  Is  reason  to  believe  that  all  there  was 
of  this  was  In  the  mind  of  a  person  whom 
he  proposed  to  employ  for  the  concern,  un- 
der an  alleged  contract  with  such  person 
which  he  claimed  to  have,  but  which  never 
was,  transferred  to  the  defendants  or  said 
proposed  association.  Furthermore,  no  form- 
ula was  mentioned  in  the  articles,  unless  it  is 
covered  by  the  terms  "processes  and  devices" 
for  the  manufacture,  etc.  Schedule  A  was  a 
fiction  by  which  to  make  It  appear  that  cer- 
tain stock  was  paid  for  by  the  transfer  of 
personal  property ;  and,  if  It  were  good  be- 
tween the  parties  to  it,  it  was  a  fraud  upon 
purchasers,  who  were  led  to  buy  stock  through 
the  misrepresentation  that  the  original  stock- 
holders had  paid  for  their  stock  at  the  same 
price  charged  them.  There  was  ample  evi- 
dence from  which  the  learned  circuit  Judge 
might  Infer  that  these  defendants,  knowing 
that  they  paid  a  nominal  sum  for  their  stock, 
expected  that  later  purchasers  of  stock  wonld 
be  misled  as  to  the  >'alue  of  the  assets,  which 
plainly  were  grossi'y  exaggerated,  if  not 
known  to  all  of  them  to  be  purely  fictitious. 
See  Wood  V.  Sloman,  150  Mich.  177,  114  N. 
W.  317. 

At  the  time  this  subscription  was  made, 
these  defendants  were  not  a  partnership  as- 
sociation, limited;  for,  although  it  bo  con- 
ceded that  they  had  executed  articles  of  as- 
sociation, they  had  not  been  recorded,  and 
the  claim  that  they  had  then  become  a  de 
facto  pnrtneri'hip  association,  limited,  has  no 
substantial  foundation  at  that  time,  if  such 
claim  could  relieve  defendants.  In  a  case  Ilk* 


Digitized  by  VjOOQ  l€ 


Ulcfa.) 


F0R9YTHB  ▼.  THOMPSON'S  ESTATE. 


219 


this,  In  any  case  where  the  statute  as  to  fil- 
ing articles  had  not  been  complied  with — 
a  question  we  do  not  pass  upon.  See  Elgin 
Nat  Watch  C!o.  v.  Iioveland  (C.  O.)  132  Fed. 
41;  Fredenbnrg  v.  M.  B.  Church,  87  Mich. 
476;  and  note  Doyle  v.  Mlzner,  42  Mich. 
332-337,  3  N.  W.  06&  In  the  original  enter- 
prise these  defendants  were  copartners,  and 
each  was  responsible  for  what  was  done  in 
the  furtherance  of  the  original  scheme.  They 
were  all  liable  for  the  damages  resulting 
from  the  fraud  in  the  furtherance  of  their 
common  enterprise,  the  results  of  which 
they  were  to  share  in  common. 

It  was  contended  on  their  behalf  that  com- 
plainant, having  dealt  with  defendants  ,  as 
a  partnership  association,  limited,  should  be 
estopped  from  denying  Its  existence  as  such, 
and  therefore  that  bis  suit  should  have  been 
planted  against  it  as  such,  and  that.  If  there 
Is  any  liability  at  all.  It  is  not  against  the 
defendants  personally.  This  contention  is 
practically  covered  by  what  has  been  said. 
At  the  time  of  his  purchase,  there  was  no 
lawful  partnership  association,  limited,  and 
the  rights  which  then  accrued  have  not  been 
lost  He  accepted  his  certificate  of  stock, 
and  retained  It  in  the  honest  belief,  not  only 
that  there  was  a  limitation  upon  his  liability 
as  a  partner,  but  In  ignorance  of  the  facts 
of  Its  organization.  As  soon  as  ascertained, 
he  toolc  steps  to  protect  himself  from  the 
consequences  of  being  a  copartner  in  the 
concern,  and  therefore  liable  for  its  past  or 
prospective  debts  as  a  general  copartner  or 
otherwise,  and  to  recover  the  damages  sus- 
tained. We  think  equity  has  Jurisdiction  for 
both  purposes.  How  far  any  existing  credit- 
ors may  be  affected  by  this  litigation  we  need 
not  inquire,  as  they  are  not  parties;  but 
as  against  these  defendants,  the  complain- 
ant is  entitled  to  have  the  certificate  cancel- 
ed, and  to  recover  his  damages.  The  other 
defendants  in  this  case  were  undoubtedly 
imposed  upon  by  Johnson,  who  led  them  into 
a  losing  venture,  but  that  does  not  Justify 
their  building  a  company  on  air  to  the  In- 
Jury  of  others  wlio,  relying  upon  the  known 
character  and  standing  of  those  connected 
with  and  managing  the  enterprise,  are  in- 
duced to  put  in  their  money  in  Ignorance  of 
facts  which,  to  say  the  least,  the  defendants 
participated  in,  with  a  view  to  profit  at  the 
expense  of  others. 

The  decree  of  the  learned  circuit  Judge  is 
in  all  things  affirmed,  with  costs. 


FORSTTHE  v.  THOMPSON'S  ESTATE. 

(Supreme  Court  of  Michigan.     July  15,  1909.) 

1.  EXECUTOBS  AND  Administkatohs  (§  221*)— 
Allowance  of  Claims— Services  Rekdeb- 
ED  Deoedent— EvinENCB— Vabiance. 

In  a  proceeding  to  establish  a  claim  against 
the  estate  of  a  decedent  for  nonfulfillment  of  a 
contract  that,   if  claimant   woald   live   in   the 


family  of  decedent  and  peifonn  services  nntU 
his  death,  he  would  give  his  farm  or  its  value 
in  money,  it  was  not  error  to  admit  evidence, 
though  not  in  the  exact  terms  of  the  contract 
set  out  by  claimant,  tending  to  show  that  there 
was  a  contract  between  decedent  and  claimant 
whereby  decedent  had  agreed  "to  do  well  it 
her"  if  claimant  would  remain  with  him  until 
his  death. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  f  902;  Dec. 
Dig.  i  221.*] 

2.  ElXECUTOBS  AND  Administbators  (!  221*)— 

Allowance  of  Claivs — Services  Rendeb- 
ED  Decedent— Evidencb—Admissibilitt. 
In  a  proceeding  to  establish  a  claim  against 
the  estate  of  a  decedent  for  nonfulfillment  of 
a  contract  tliat,  if  claimant  wonld  live  in  the 
family  of  decedent  and  perform  services  nnti! 
his  death,  he  would  give  her  a  farm  or  its  value 
in  money  evidence  that  decedent  bad  asked 
witness  if  he  did  not  think  that  if  decedent 
gave  claimant  one  of  his  farms  and  certain 
stock,  she  would  always  have  an  income,  was 
not  erroneously  admitted  as  necessarily  im- 
plying that  no  contract  had  theretofore  been 
made  between  decedent  and  claimant,  but  rather 
tended  to  indicate  an  anxiety  by  decedent  to 
provide  for  claimant  in  a  manner  possibly  more 
to  her  advantage  than  he  had  by  his  previous 
contract  agreed. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  {  902;  Dee. 
Dig.  i  221.*] 

3.  New  Tbial  (|  44*)— Grounds— Readino 
OF  Nbwspapeb  Abticles  by  Jubt. 

The  fact  that  dnrinf;  the  trial  of  a  pro- 
ceeding to  establish  a  claim  against  the  estate 
of  a  decedent  for  nonfulfillment  of  a  contract 
that  if  claimant  would  live  in  the  family  of 
decedent  and  perform  services  until  his  death, 
decedent  would  ^ive  her  his  farm  or  its  value,  a 
numl>er  of  the  jurors  read  newspaper  articles, 
somewhat  colored,  giving  the  amount  of  dece- 
dent's estate  at  more  than  double  what  it  ac- 
tually was,  and  stating  that  the  commissioners 
on  claims  were  favorable  to  claimant,  but  were 
nnable  to  agree  upon  the  sum  she  should  re- 
ceive, is  not  gronnd  for  a  mistrial,  as  it  can- 
not be  presumed  that  the  jurors  would  be  in- 
fluenced by  the  articles  to  render  a  verdict 
contrary  to  the  sworn  evidence. 

[Ed.  Note.— For  other  cases,  see  New  Trial, 
Cent.  Dig.  i  80;    Dec  Dig.  {  44.*] 

4.  ExxcuTORS  and  Aduinistrators  (I  2.T4*)— 
Allowance  of  Claims— Services  kendeb- 
kd  Decedent— Amount  of  Recovery. 

Claimant  entered  the  home  of  decedent  as  a 
domestic,  his  household  at  the  time  consisting 
of  an  aged  brother  and  sister  and  himsplf,  and 
it  was  subsequently  agreed  that,  if  claimant 
would  remain  with  decedent  and  perform  serv- 
ices until  his  death,  he  would  give  her  his  farm 
or  its  value  in  money.  Claimant  then  remained 
with  decedent  until  his  death  about  three  years 
and_  one-half  thereafter,  having  been  in  his 
family  in  all  about  six  years,  during  which 
time  she  had  the  care  ot  the  household  for  all 
three.  When  claimant  first  entered  his  serv- 
ice, she  received  $2  a  week,  but  after  a  time 
$3  a  week,  and  during  the  last  two  years  $4 
a  week.  Claimant  devoted  herself  to  the  care 
of  the  three  aged  people,  and  occupied  a  posi- 
tion in  the  family  apart  from  that  of  either 
a  domestic  or  nurse,  but  which  services  she 
also  rendered.  Held,  that  a  verdict  of  M.OOO 
was  excessive,  and  should  he  reduced  to  $7,000. 
[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  |  906:  Dec. 
Dig.  i  254.*] 

Error  to  Circuit  Court,  Macomb  County; 
Byron  R.  Erskine,  Judge. 


•For  other  caMs  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs,  vm  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


220' 


122  NORTHWESTERN  REPORTER. 


(Mich. 


Proceedings  for  the  allcwance  of  the  claim 
of  Anna  Forsythe  against  the  estate  of  James 
Tbompson,  deceased.  Tbe  commissioners  on 
claims  appointed  by  the  probate  court  re- 
ported a  failure  to  agree,  and  upon  appeal 
from  the  probate  court  claimant  recovered 
a  Judgment  of  $9,000,  and  the  estate  brings 
error.  Reversed,  unless  claimant  remit  $2,- 
000,  In  which  case  Judgment  affirmed. 

Argued  before  BLAIR,  C.  J.,  and  HOOK- 
ER, MOORE,  McALVAT,  and  BROOKE,  JJ. 

Henry  J.  McKay  (J.  G.  Tucker  and  O.  C. 
Lungershausen,  of-  counsel),  for  appellant. 
William  T.  Hosncr  and  Seth  W.  Knight,  for 
appellee. 

BROQKB,  3.  The  claimant  filed  the  fol- 
lowing claim  against  the  estate  of  James 
Thompson,  deceased:  "County  of  Macomb— 
Bs.:  The  estate  of  James  Thompson,  deceas- 
ed, debtor  to  Anna  Forsythe.  Said  Anna 
Forsythe  avers  and  claims  damages  in  the 
sum  of  $15,000  for  nonfulfillment  of  a  con- 
tract made  and  entered  into  by  and  between 
herself  and  the  deceased,  James  Thompson, 
In  substance  and  effect  as  follows:  Said 
claimant  avers  that  upward  of  six  years  be- 
fore the  death  of  said  James  Thompson  she 
went  to  live  in  the  family  of  the  said  James 
Thompson,  and  remained  In  said  family  con- 
stantly up  to  and  a  short  time  after  his 
death;  that  during  the  time  she  remained 
in  the  borne  of  and  resided  with  said  Thomp- 
son she  had  the  exclusive  charge  of  the 
household,  and  did  all  the  duties  connected 
therewith,  and  also  did  business  for  the  said 
James  Thompson  upon  his  request  and  under 
his  direction  i>ertalnlng  to  his  vast  property 
Interests;  and  that  during  a  portion  of  the 
time  it  was  necessary  for  her  to  be  up  a 
portion  of  and  sometimes  nearly  all  night 
administering  to  his  wants  and  those  of  bis 
brother  and  Bister  who  lived  with  him.  This 
claimant  ftirther  avers  and  Claims  that  a 
short  time  after  going  to  the  home  of  the 
said  James  Tbompson  be  promised  her  that 
if  she  would  remain  with  him  until  his  death 
that  he  would  do  well  by  her,  and  that  in 
addition  to  paying  her  so  much  a  week,  if 
she  would  refrain  from  marrying  and  stay 
in  his  home,  and  look  after  bis  wants  and 
necessities  until  his  death,  that  he  would  ei- 
ther deed  her  the  farm  on  which  he  lived  at 
the  time  of  his  death  or  leave  her  the  value 
of  the  farm  in  money.  Said  claimant  avers 
and  claims  that  said  farm  is  worth  upwards 
of  $15,000,  and  that  she  has  performed  her 
part  of  the  agreement  with  the  said  James 
Thompson  in  every  respect  acting  on  the 
promise  to  leave  her  the  farm  aforesaid  or 
its  equivalent  in  money,  fully  believing  and 
expecting  that  on  his  death  that  said  farm 
would  belong  to  her,  and  she  went  to  work 
on  good  faith  under  said  contract  or  agree- 
ment with  tfaie  said  James  Thompson  with 
all  her  energy  and  perseverance  and  manag- 
ed his  household  affairs  and  administered  to 
his  wants  the  same  as  though  he  had  been 


her  father,  with  all  the  energy,  skill,  and 
economy  that  she  possessed  and  administer- 
ed as  best  she  could  to  the  comfort,  happi- 
ness, and  needs  of  the  said  James  Thompson 
during  his  lifetime.  Said  claimant  farther 
avers  and  claims  that  a  short  time  prior  to 
his  death  tlie  said  James  Thompson  made  ar- 
rangements to  carry  out  his  promise  to  her 
as  set  forth  above  by  executing  a  deed  of 
the  farm  where  he  lived,  and  was  prevented 
from  so  doing  by  reason  of  the  fact  that  he 
suffered  a  stroke  which  resulted  in  his  de- 
mise. Claimant  further  claims  for  services 
performed  by  her  for  said  James  Thompson 
during  the  time  that  she  was  in  his  employ 
the  sum  of  fifteen  thousand  dollars."  Tbe 
commissioners  on  claims  appointed  by  the 
probate  court  reported  a  failure  to  agree  as 
to  the  foregoing  claim.  Upon  appeal  from 
the  probate  court  claimant  recovered  a  Judg- 
ment in  tbe  sum  of  $9,000.  The  case  Is 
brought  here  for  review  by  the  estate. 

It  appears  that  the  claimant  in  September, 
1900,  then  a  girl  of  19  years  of  age,  entered 
the  home  of  tbe  decedent,  James  Thompson, 
as  a  domestic.  At  that  time  the  household 
of  decedent  consisted  of  himself,  age  70 
years,  his  brother  Isaac,  age  81  years,  and 
his  sister  Abble,  age  82  years.  None  of  the 
three  had  ever  married.  They  had  lived 
together  upon  a  farm,  called  the  "home 
farm,"  for  a  great  many  years.  This  farm 
consists  of  240  acres,  and  is  valued  at  about 
$20,000.  When  claimant  first  entered  the 
service  of  James,  she  received  the  sum  of  f  2 
per  week.  After  a  time  her  wages  were  rais- 
ed to  $3  per  week,  and  during  the  last  two 
ye'ars  she  received  $4  per  week.  She  contin- 
ued to  reside  in  the  home  of  decedent  from 
September,  1900,  until  his  death  in  August, 
1906.  During  this  entire  period  of  six  years 
claimant  had  tbe  care  of  the  household  for 
these  three  very  old  people.  Isaac,  the  elder 
brother,  died  about  one  month  before  the  de- 
cease of  James.  The  title  to  the  home  farm 
was  in  Isaac  and  James  as  tenants  in  com- 
mon. About  three  years  prior  to  the  death 
of  James  Thompson  he  suffered  a  painful  ac- 
cident, brealcing  one  arm  and  injuring  the 
other  severely.  For  several  weeks  he  was 
unable  to  use  his  arms,  and  was  confined  to 
the  house  from  three  to  four  months.  Dur- 
ing this  period  the  claimant,  when  necessa- 
ry, dressed,  washed,  and  fed  him. 

Tbe  claimant  offered  the  following  testi- 
mony to  establish  the  contract  between  her- 
self and  the  decedent:  Her  mother,  Elmira 
Forsythe,  testified  that  about  a  year  and  a 
half  after  claimant  went  to  live  with  dece- 
dent he,  decedent,  desired  to  adopt  claim- 
ant, and  that  witness  objected  to  the  adop- 
tion; that  about  a  year  later  she  had  a  con- 
versation with  decedent  in  which  be  said: 
"If  she  would  stay  with  him  and  do  for  htm 
like  she  had  done,  that  he  would  deed  her 
■the  farm  that  they  lived  on  because  there 
would  be  nobody  else  do  for  him  like  she 
had  done."    Daniel  Wltmer,  merchant  of  Ro- 


Digitized  by  VjOOQ  l€ 


MIdL) 


POBSYTHB  ▼.  THOMPSON'S  ESTATE. 


221 


meo,  testified  oa  foUo^re:  "I  was  talking 
irith  Mm  and  Miss  Forsythe  was  there  and 
aboat  there  and  through  the  yard,  and  I  says 
to  Mr.  Thompson,  'Yoa  bare  got  quite  a  good 
looking  housAeeper  there";  and  he  says, 
*¥es';  and  I  bbjs,  'It  Is  a  wonder  she  will 
stay  here,  old  people  here  and  no  company, 
younger  people';  and  he  says.  There  Is  an 
object  of  her  atayli^  here.  I  promised  If 
she  would  stay  here  as  long  as  I  live  I  will 
4o  well  by  her.*  And  tliat  was  practically 
all  that  he  said,  that  he  would  do  well  by 
her.  She  was  a  good  worker,  she  was  a 
good  housekeeper,  and  such  as  that"  Allan 
Hosner  testifled:  "He  always  spoke  well  of 
the  girl.  He  claimed  she  was  a  nice  smart 
girl,  good  girl  to  work  and  keep  things  up 
In  nice  shape,  and  made  a  better  home  than 
they  had  before,  made  quite  a  difference  in 
the  home.  He  said  it  made  quite  a  big  dif- 
ference In  their  home.  •  •  •  He  most  al- 
ways had  something  to  say  in  favor  of  the 
girl.  •  •  •  I  told  him  some  fellow  would 
come  along  and  get  her  away  from  him, 
might  He  might  live  quite  a  spell.  She 
might  not  want  to  tie  herself  up  there  too 
long.  WeU,  be  said  she  had  agreed  to  stay 
and  be  bad  agreed  to  do  well  by  hnr  if  she 
did  stay.  Well,  one  time,  I  don't  know 
whether  it  was  that  time  or  not,  I  told  him 
probably  he  would  give  her  something  extra, 
maybe  ^  or  ^.  He  said,  'Yes,'  If  she  stay- 
ed he  would  give  her  more  than  $4,000  or 
15,000."  Mortimer  HUliker,  a  laboring  man 
who  worked  for  decedent  on  the  farm  about 
eight  years  off  and  on,  testifled:  "Well,  we 
was  there  in  tbe  bam,  and  the  girl  came  out 
to  go  to  the  garden  for  something.  I  don't 
know  what  And  he  says,  'There  has  been 
a  good  girl  here';  and  he  says,  'I  promised  a 
good  thing  If  she  stay  here  during  our  lives, 
my  life.'  He  says:  'And  I  am  going  to  do 
It'  And  be  says:  'She  has  promised  to 
stay.' "  John  P.  Wolcott,  a  business  man  of 
Mt  Clemens,  testified:  "He  said  that  if  Anna 
stayed  tliere  and  was  a  good  girl,  stayed 
with  him  while  he  lived,  that  she  would  be 
well  provided  for,  or  something  to  that  ef- 
fect." Harry  H.  Llppincott,  a  business  man 
of  Borneo,  testifled:  "I  said  something  to 
Anna  in  a  Joking  way,  and  I  said  to  him: 
"She  is  regular  sunshine  here,  ain't  she,  Jim?' 
1  was  as  familiar  with  him  as  that  Tea,' 
he  said,  'she  is.'  I  snld  she  had  been  with 
him  quite  a  time.  He  said,  'Yes,'  ind  'she 
is  going  to  stay  with  me  or  has  promised  to 
stay  with  me  as  long  as  I  live  and  I  have 
agreed  to  do  something  handsome  by  her.' " 
George  Forsythe,  father  of  claimant,  testi- 
fied as  to  a  conversation  had  with  decedent 
a  few  days  before  his  death:  "The  conversa- 
tion was  that  he  expected  a  Mr.  Webster 
down.  He  agreed  to  come  down  in  atiout 
two  weeks;  but  he  hadn't  come  down,  and 
that  he  said  that  he  wanted  to  fix  matters 
or  papers,  some  papers  up.  He  didn't  think 
he  would  live  a  great  while,  and  he  wanted 
to  make  a  deed  of  that  farm  to  Anna,  my 
daughter."    John  BL  Ooope,  wool  buyer  and 


grain  buyer,  testifled:  "Why  he  told  me  that 
the  girl — I  told  him,  I  says:  'Jim,  you  don't 
want  to  let  as  good  a  girl  as  that  go.'  He 
says:  'I  ain't  going  to.'  He  says,  'She  has 
agreed  to  stay  with  me  as  long  as  I  live'; 
and  he  says,  'I  am  going  to  give  her  the 
farm.  I  am  going  to  see  that  she  gets  It — 
the  home  farm.'  This  farm,  that  was  the 
farm  that  he  was  talking  about  •  •  • 
I  asked  him  then,  I  says:  'Have  you  ever 
fixed  up  with  Anna  what  you  told  me  yon 
was  going  to  do?  He  repeated  It,  you  know. 
I  says:  'Have  you  ever  fixed  it  up?"  He 
says:  'No.'  But,  be  says:  'Just  da  soon  as  I 
can  get  down  town  I  am  going  to  a  lawyer 
and  have  It  fixed  up,  and,  well,'  he  said,  'Just 
now  don't  you  think  if  I  would  give  Anna 
one  of  the  farms  over  west  and  this  thresher 
stock  and  then  she  would  always  have  an  in- 
come?* 'Why,'  I  says,  'Jim,  it  is  your  own. 
It  Is  none  of  my  business,'  I  says:  'It  Is  all 
your  own.  Do  what  yon  mind  to  with  it'  I 
says:  'It  is  nobody's  business.'  The  threslier 
stock  was  between  $10,000  and  $11,000.  I 
cannot  state  the  exact  amount"  On  cross- 
examination:  "Why,  as  he  sat  there,  I  says: 
'It  is  more  like  living?*  He  says,  Tes.'  I 
says,  'You  have  got  a  good  girl  there,  Jim. 
Yon  want  to  keep  her.'  He  says,  'I  am  going 
to.*  He  says,  'I'll  teU  you  C!oope,'  be  says, 
'she  has  agreed  to  stay  and  take  care  of  me 
as  long  as  I  live;  and  I  have  agreed  to  give 
her  a  deed  of  this- farm,  and  I  am  going  to 
see  that  she  gets  it'  **  William  H.  Chapman, 
undertaker,  testifled:  "I  had  charge  of  tbe 
funeral  of  Isaac  Thompson.  James  told  me 
to  order  what  flowers  Anna  thought  necessa- 
ry, and  I  asked  him  if  I  should  limit  her  in 
regard  to  the  amount.  He  said,  'No,'  to  let 
her  use  her  own  Judgment,  as  be  thought  her 
taste  in  such  matters  was  very  good.  He 
said  he  wanted  Iter  to  sit  with  him  as  he 
considered  her — ^he  considered  she  had  lived 
there  so  long  that  he  considered  her  as  one  of 
the  family.  He  said  be  wanted  her  to  ride 
in  the  flrst  carriage  with  him."  Harry 
Gray,  grocer  of  Romeo,  testifled:  "Miss  For- 
sythe settled  all  accounts  excepting  the  last 
account  that  was  made,  and  Mr.  Chamberlain 
settled  that."  Testimony  on  behalf  of  tbe 
estate  was  Introduced  tending  to  show  that 
claimant  after  the  death  of  decedent  ac- 
knowledged she  bad  no  claim. 

Assignments  of  error,  1,  2,  3,  4,  5,  43,  and 
47  relate  to  statements  of  deceased  admitted 
against  objection,  and  which  it  is  claimed 
had  no  tendency  to  prove  the  speciflc  agree- 
ment or  contract  which  is  made  tbe  basis  of 
the  claim.  These  assignments  relate  par- 
ticularly to  the  testimony  of  the  witness 
Witmer  and  Ilosner.  It  Is  true,  as  urged  by 
the  counsel  for  the  estate,  that  neither  of 
these  witnesses  testifled  to  the  contract  in 
the  exact  terms  set  out  by  the  claimant,  but 
we  do  not  think  it  can  be  said  that  this  tes- 
timony has  no  tendency  to  prove  such  a  con- 
tract. It  cannot  be  supposed  that  the  dece- 
dent would  go  over  in  detail  tbe  terms  of  his 
contract  with  the  claimant  with  every  casual 


Digitized  by  VjOOQ  l€ 


222 


152  NORTHWESTERN  REPORTER. 


(Mich. 


acquaintance.  These  witnesses'  testimony, 
bowever,  tends  to  show  that  there  was  a  con- 
tract between  decedent  and  claimant,  by  the 
terms  of  which  claimant  had  agreed  to  stay 
with  decedent  until  his  death,  in  considera- 
tion of  which  he,  decedent,  had  agreed  to  "do 
well  by  her." 

Assignment  43  relates  to  the  question  asked 
of  witness  Coope,  whose  testimony  has  been 
quoted  above,  and  which  was  received  over 
objection  by  the  defendant  estate.  It  is  the 
claim  of  the  attorneys  for  the  estate  that 
these  statements  of  deceased,  not  only  fall 
to  substantiate  the  contract  set  up  In  the 
claim,  but  show  that  no  such  contract  had 
been  made.  We  cannot  agree  with  the  coun- 
sel for  the  estate  In  this.  The  query  of  the 
decedent  of  witness  Coope,  "Just  now  don't 
yon  think  if  I  would  give  Anna  one  of  the 
farms  over  west  and  this  thresher  stock,  and 
then  she  would  always  have  an  Income?" 
does  not  necessarily  carry  the  Inference  that 
no  contract  bad  theretofore  been  made  be- 
tween decedent  and  claimant,  but  rather 
tends  to  Indicate  on  the  part  of  the  decedent 
an  anxiety  to  provide  for  claimant  in  a  man- 
ner possibly  more  to  her  advantage  than  he 
had  by  his  contract  agreed  to  do. 

Error  is  assigned  upon  the  Judge's  charge 
We  have  examined  the  charge  with  care,  and 
believe  that  it  fairly  states  the  law  govern- 
ing the  case. 

A  motion  for  a  new  trial  was  made,  only 
two  grounds  for  which  we  will  examine. 
The  seventh  is  as  follows:  "Because  during 
the  trial  of  said  cause,  and  before  the  same 
had  been  finally  submitted  to  the  jury,  a 
number  of  jurors  saw  and  read  certain  art- 
icles concerning  said  cause,  published  In  the 
Mt.  Clemens  Monitor  and  Daily  Leader  on 
January  10,  1908,  two  papers  published  and 
circulated  in  the  county  of  Macomb,  said  art- 
icles containing  many  immaterial  and  grossly 
prejudicial  statements  to  defendant's  case." 
The  fourth  Is  as  follows:  "Because  said  ver- 
dict was  grossly  and  unreasonably  excessive." 
With  reference  to  the  seventh  reason  above 
quoted,  It  Is  apparent  from  the  record  that 
the  articles  published  In  Mt.  Clemens  dally 
papers  were  read  by  some  of  the  jurors  prior 
to  the  rendition  of  the  verdict.  The  articles 
themselves  are,  as  is  frequently  the  case, 
somewhat  colored.  They  give  the  amount  of 
the  decedent's  estate  at  more  than  double 
what  It  actually  was  as  testified  to  In  the 
record.  They  likewise  assume  to  state  that 
the  commissioners  on  claims  were  favorable 
to  the  claimant,  but  were  unable  to  agree  up- 
on the  sum  she  should  receive.  We  cannot 
presume  that  the  jurors  would  be  Influenced 
by  the  reading  of  these  articles  to  render  a 
verdict  contrary  to  the  sworn  testimony  In 
the  case.  Jurors  of  Intelligence  usually  read 
the  newspapers  In  their  respective  localities, 
and,  if  every  trial  is  to  be  a  mistrial  because 


of  the  fact  tliat  misinformation  reaches  the 
Jurors'  hearing  during  the  trial  of  a  case  out- 
side the  courtroom,  there  would  be  no  end  to 
litigation.  A  somewhat  similar  assl^nmeut 
of  error  was  considered  by  this  court  in  the 
case  of  Sherwood  v.  Chicago  &  West  Michi- 
gan R.  R.  Co.,  88  Mich.  108,  60  N.  W.  101, 
where  this  court,  through  Mr.  Justice  Grant, 
In  commeuting  upon  the  publication  of  the 
amount  of  a  former  verdict,  said:  "It  Is  in- 
deed desirable  tliat  such  things,  so  far  as 
possible,  should  be  kept  from  the  luiowledge 
of  the  jury,  but,  however  unwise  It  may  be 
to  publish  them  at  the  time  of  the  trial,  no 
violation  of  law  Is  committed  In  so  doing, 
nor  will  the  reading  of  them  by  jurors  ren- 
der them  incompetent."  As  to  the  fourth 
ground  urged  as  a  reason  for  a  new  trial, 
we  think  that  the  learned  circuit  judge  er- 
red In  his  determination  that  the  verdict 
was  not  grossly  and  unreasonably  excess- 
ive. The  record  we  think  shows  by  a  fair 
preponderance  of  the  evidence  that  the  de- 
cedent made  the  contract  relied  upon  by 
the  claimant  After  the  making  of  the  con- 
tract, the  claimant  spent  about  three  years 
and  a  half  In  the  society  of  the  decedent  and 
his  aged  brother  and  sister.  It  is  quite  clear 
that  for  her  manual  labor  her  weekly  stipend 
may  have  been  adequate,  but  It  Is  equally 
true  that  such  compensation  might  not  have 
been  sufficient  to  Induce  a  young  woman  to 
forego  the  ordinary  activities  common  to  ber 
age  and  sex  and  devote  herself  to  the  care 
of  three  aged  people.  The  comfort  and  pleas- 
ure which  the  decedent  received  by  reason 
of  her  society  and  ministration  cannot  read- 
ily be  valued.  The  making  of  the  contract 
relied  upon  affords  some  testimony  of  the 
value  decedent  placed  upon  them.  The  value 
of  the  services  of  an  ordinary  domestic  or  a 
trained  nurse  may  be  readily  ascertained,  but 
this  record  details  many  Incidents  which 
show  that  the  claimant  occupied  a  position 
in  the  family  of  the  decedent  quite  apart 
from  either  of  these  relations.  The  value  of 
claimant's  services  is  the  true  measure  of 
her  recovery,  those  services  Include,  however, 
more  than  mere  manual  labor  or  expert  nurs- 
ing. 

We  are  nevertheless  of  the  opinion  that  the 
verdict  was  an  excessive  one.  As  pointed  out 
by  counsel  for  the  estate,  the  verdict  gives 
claimant  $50  per  week  for  the  entire  period 
of  her  service  after  the  contract  was  made 
in  addition  to  what  she  had  already  received. 
This  sum  under  all  the  circumstances  dis- 
closed by  the  record  in  this  case  we  hold  to 
be  too  great 

The  judgment  will  be  reversed  and  a  new 
trial  ordered  unless  the  claimant  remits  the 
sum  of  $2,000,  in  which  event  the  Judgment 
will  stand  affirmed  at  the  sum  of  $7,000. 
No  costs  of  this  appeal  will  be  allowed  to 
either  party. 


Digitized  by 


Google 


Mich.) 


TEREE8  V.  SMITH. 


223 


TERKES,  PrOB.  Atty.,  ▼.  SMITH,  Police 

Com'r. 

(Sapreme  Court  of  Michigan.     July  15,  1009.) 

1.  Sunday  (|  29»)— Penalxies  fob  Viola- 
noNB  OF  Law — Oivil  Action. 

The  playing  of  baseball  on  Sunday  does 
not  amonnt  to  a  misdemeanor,  and  cannot  be 
proKcated  by  Indictment,  the  only  remedy  beioK 
a  civil  action  under  Comp.  Laws  1807,  {  9797 
et  seq. 

[Ed.  Note. — For  other  cases,  see  Sunday, 
Cent.  Dig.  f  C7;  Dec.  Dig.  §  29.*] 

2.  Akbest  ({  62*)  —  Violation  of  Sundat 
liAWB— SumiABT  Abbest. 

A  summary  arrest  to  prevent  violation  of 

the  Sunday  observance  law  (Comp.  Laws  1897, 

i  5912)  is  neither  contemplated  nor  authorized. 

[Ed.  Note. — For  other  cases,  see  Arrest,  Cent. 

Dig.  I  144;    Dec.  Dig.  f  62.*] 

3.  Abkest  (I  62*)— Bbeach  of  the  Pkacb— 
Sunday  Basebai.!.. 

A  mer«  assemblage  of  persons  to  play  and 
witness  a  game  of  baseball  on  Sundav  is  not 
of  itself  and  necessarily  a  breach  of  the  peace 
sufficient,  without  overt  acts  of  violence  or  dis- 
order, to  authorize  a  summary  arrest. 

[E^  Note. — For  other  cases,  see  Arrest,  Cent. 
D«.  i  144;    Dec.  Dig.  {  62.*] 

4.  Mandamus  (I  66*)— Officeb  Subjeot  to 
Mandamus— Obdeb  to  Dispebse— Officebs 
Entitled  to  Give. 

The  police  commissioner  of  a  city  is  not 
one  of  the  officers  named  by  Comp.  Laws  1897, 
I  11,334,  providing  that,  if  any  persons  to 
the  number  of  30  or  more  shall  be  riotously 
or  tnmultuonsly  assembled,  it  shall  be  the  duty 
of  the  mayor  and  aldermen  of  the  city,  the  su- 
pervisor of  the  township,  the  president  and  the 
members  of  the  common  council  of  such  village, 
and  of  every  justice  of  the  peace,  and  also  of 
the  sheriff  and  his  deputies  to  command  such 
persons  immediately  to  disperse,  who  are  re- 
quired to  command  a  dispersal,  and,  not  being 
such,  he  should  not  be  compelled  by  mandamus 
to  take  such  action. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Cent  Dig.  |  131 ;   Dec.  Dig.  {  66.*] 

Certiorari  to  Circuit  Court,  Wayne  Coun- 
ty; FlavluB  li.  Brooke,  George  S.  Hosmer, 
Monse  Rohnert,  and  Joseph  W.  Donovan, 
Judges. 

Certiorari  by  George  B.  Terkes,  Prosecut- 
ing Attorney  of  Wayne  County,  to  review 
the  action  of  the  Circuit  Court  for  Wayne 
County  In  denying  a  writ  of  mandamus  to 
compel  Frederick  W.  Smith,  Commissioner 
of  Police  of  the  City  of  Detroit,  to  enforce 
the  law  against  the  playing  of  baseball  on 
Sunday.     Order  affirmed. 

Argued  before  BLAIR,  C.  J.,  and  MONT- 
GOMERY, OSTRANDER,  MOORE,  HOOK- 
ER, and  McALVAY,  JJ. 

James  H.  Pound,  for  appellant.  George  P. 
Codd  (Michael  P.  Bourke,  of  counsel),  for 
api)ellee. 

HOOKER,  J.  The  petition  for  certiornrl 
in  this  cause  shows  that  this  proceeding  is 
a  continuation  of  an  effort  by  certain  clergy- 
men, and  perhaps  others,  to  stop  the  playing 
of  baseball  upon  Sunday  In  Detroit  The 
matter  was  before  as  In  the  case  of  Sweet  t. 


Smith,  153  Mich.  674,  117  N.  W.  89,  upon 
a  writ  of  certiorari  to  review  the  denial  by 
the  circuit  court  of  a  writ  of  mandamus  to 
compel  this  same  respondent  "to  execute  and 
enforce  all  laws  pertaining  to  the  preserva- 
tion of  the  Sabbath,  *  *  *  at  the  base- 
bifll  park  of  the  Detroit  Club — ^1.  e.,  the  De- 
troit Baseball  Club."  We  held  in  that  case 
that  the  grievance  complained  of  was  purely 
a  public  grievance,  and  relief  would  not  be 
granted  at  the  Instance  of  a  private  relator. 
Said  petition  shows  that  falling  In  the  former 
proceeding  the  same  persons  have  applied 
to  the  prosecuting  attorney,  who  signed  the 
petition  for  mandamus  In  this  case,  and  aft- 
erwards the  petition  for  certiorari  herein- 
before mentioned.  The  cause  Is  presented 
here  by  private  counsel,  relator's  active  con- 
nection with  the  case  apparently  extending 
no  farther  than  to  lend  his  name  to  per- 
sons seeking  to  compel  respondent  to  en- 
force the  Sunday  laws  by  stmimary  measures, 
although,  If  the  claim  In  this  cause  Is  sound, 
respondent  was  liable  to  prosecution  for  a 
misdemeanor  and  punishment  to  the  extent 
of  $300.  Comp.  Laws,  1 11,337.  The  writ  was 
denied  In  the  circuit  court — four  Judges  sit- 
ting— and  is  before  us  by  writ  of  certiorari. 

The  playing  of  baseball  on  Sunday  Is  an 
act  prohibited  and  punishable  by  law,  the 
penalty  being  a  fine  of  $10.  It  does  not 
amount  to  &  misdemeanor,  and  cannot  be 
prosecuted  by  indictment,  the  only  remedy 
being  a  civil  action.  See  Comp.  Laws,  $  9797 
et  seq.;  Pettinger  v.  People,  20  Mich.  336. 
The  action  sought  to  be  enforced  by  this  pro- 
ceeding Is  primarily  the  prevention  of  a 
game  of  baseball,  advertised  for  August  30th 
last,  and  of  games  that  are  said  to  have  been 
contemplated  on  Sundays  of  later  dates.  We 
suppose  that  relator  expects  such  games  to 
be  prevented  by  arrest  of  those  engaged  In 
them.  The  law  has  prescribed  another  meth- 
od for  preventing  Infractions  of  this  law, 
viz.,  a  penalty  to  be  collected  through  judi- 
cial proceedings,  and  a  summary  arrest  even 
after  a  violation  of'  the  law  is  not  contem- 
plated, and  Is  not  authorized  by  law,  as  a 
means  of  preventing  the  violation  of  this 
statute.  Comp.  Law^s,  i  5912.  See  authorities 
supra. 

We  understand  that  counsel  does  not  con- 
tend otherwise,  and  that  he  rests  his  right  to 
a  writ  upon  the  claim  that  under  Comp. 
Laws,  i  11,334,  and  succeeding  sections,  a 
game  of  baseball  played  In  the  presence  of  30 
or  more  persons  Is  per  se,  and  necessarily, 
a  breach  of  the  peace,  and  an  assemblage 
of  persons  to  the  number  of  30  or  more,  for 
the  purpose  of  playing  and  witnessing  such 
a  game  In  Detroit  on  Sunday,  la  such  an  "un- 
lawful, tumultuous  or  riotous  assemblage"  as 
to  make  It  the  duty  of  this  respondent  to  be 
present  In  person,  or  by  policemen  under  his 
control,  and  prevent  the  game  and  the  al- 
lied consequent  breach   of  the  peace,   by 


•Far  other  eases  see  same  topic  and  section  NUMBSR  In  Dee.  *  Am.  Digs.  1907  to  dsts,  *  Reportar  IndazM 


Digitized  by  VjOOQ  l€ 


224 


122  NORTHWESTBRN  BEPORTEB. 


(Mich. 


commanding  Bald  assemblage  to  immediately 
and  peaceably  disperse,  enforcing  snch  com- 
mand by  the  arrest  of  all  such  persons  as 
may  fall  to  obey.  Before  tbe  respondent 
could  be  required  to  arrest  any  one,  there 
must  have  been  either  a  breach  of  the  peace 
already  committed,  or  a  failure  to  comply 
with  a  lawful  order  to  disperse.  Taking  the 
answer  as  true,  we  must  assume  a  willing- 
ness on  tbe  part  of  this  respondent  to  cause 
warrants  to  issue  for  the  arrest  of  all  per- 
sons violating  section  5912,  and,  acting 
through  his  subordinates,  summarily  to  ar- 
'  rest  all  persons  who  should  be  guilty  of  a 
breach  of  tbe  peace,  but  that  he  refused  to 
assume  that  all  baseball  games  played  on 
Sunday  required  his  personal  attendance  or 
would  Justify  a  command  by  him  to  dis- 
perse, and  subsequent  arrest  under  tbe  stat- 
ute cited,  if  such  command  should  not  be 
obeyed. 

We  have  said  that  the  mere  playing  of  a 
game  of  baseball  upon  Sunday  is  not  of  it- 
self and  necessarily  a  breach  of  the  peace, 
Justifying  arrest  and  indictment  In  a  sense 
a  game  of  baseball  on  Sunday  may  often  be 
a  breach  of  the  peace,  perhaps  usually  is, 
but  it  cannot  be  said  that  it  Is  necessarily 
so,  and  before  a  summary  arrest  can  be 
made  for  a  breach  of  the  peace,  not  only 
must  overt  acts  be  committed  in  the  presence 
of  the  officer,  but  they  must  be  violent  and 
dangerous  acts  of  some  sort  The  constitu- 
tional immunity  from  arrest  is  discussed  by 
tbe  late  Mr.  Justice  Campbell  in  Robison  v. 
Miner,  68  Mich.  557,  37  N.  W.  25.  "So  far  as 
arrests  are  concerned,  a  similar  principle 
applies.  Under  our  system  we  have  repeat- 
edly decided,  in  accordance  with  constitu- 
tional principles  as  construed  everywhere, 
that  no  arrest  can  be  made  without  warrant 
except  in  cases  of  felony,  or  in  cases  of 
breaches  of  the  peace  committed  in  the  pres- 
ence of  the  arresting  officer.  This  exception, 
in  cases  of  breaches  of  the  peace,  has  only 
been  allowed  by  reason  of  the  immediate 
danger  to  the  safety  'of  the  community 
against  crimes  of  violence,  and  it  was  con- 
fined, even  in  such  cases,  to  Instances  where 
the  violence  was  committed  in  the  presence 
of  the  officer.  There  are  not  many  such 
cases.  The  common  and  statute  law  provide 
for  very  few  specified  breaches  of  the  peace, 
and  there  are  none  that  are  not  specified. 
An  Indictment  charging  a  person  as  a  peace- 
breaker,  and  not  with  any  specified  crime, 
would  be  good  for  nothing.  Assaults  and  ri- 
otous conduct  make  up  tbe  largest  part  of 
the  list.  But  there  can  t>e  no  breach  of  the 
peace  within  the  meaning  of  the  law  that 
does  not  embrace  some  sort  of  violent  as 
well  as  dangerous  conduct.  The  manifest 
purpose  of  this  statute  is  to  bring  certain 
things  that,  are  not  breaches  of  the  peace 
within  that  denomination  to  avoid  the  ne- 
cessity of  a  warrant.    But  as  already  sug- 


gested, tbe  Constitution  cannot  be  so  evaded." 
See,  also,  Qninn  v.  Heisel,  40  Mich.  576.  It  is 
clear  that  a  mere  assembling  of  persons  to 
play  and  witness  any  Sunday  game  is  not 
sufficient  without  overt  acts  of  violence  or 
disorder  to  authorize  an  officer  to  make  a 
summary  arrest 

This  being  so,  relator's  claims  must  be  left 
to  rest  upon  the  statute — section  11,334 — 
which  has  been  held  to  be  applicable,  where 
a  game  of  baseball  on  Sunday  in  a  public 
place  was  attended  by  several  hundred  as- 
sembled, unlawfully  and  tumultuously,  to 
witness  it  Scougale  v.  Sweet  124  Mich. 
315,  82  N.  W.  1061.  Before  an  arrest  can  be 
required  under  this  statute,  there  must  t>e 

(1)  a  condition  of  things  Justifying  a  com- 
mand to  disperse,  by  tbe  proper  officer,  des- 
ignated by  law ;  (2)  disol>edience  of  the  com- 
mand. Tills  statute  is  apparently  based  up- 
on the  common-law  duty  of  sheriffs  and  oth- 
ers to  read  the  riot  act  and  command  a  dis- 
persal of  persons  at  a  time  of  riot 

The  statute  may  perhaps  be  said  to  have 
enlarged  the  common-law  rale.  It  has  cer- 
tainly made  it  an  offense  to  disobey  a  law- 
ful command.  But  before  one  can  be  con- 
victed of  such  an  offense,  there  must  have 
been :   (1)  An  occasion  for  such  a  command. 

(2)  Tbe  command  must  have  been  made  by 
one  of  the  statutory  officers.  (3)  The  com- 
mand must  tiave  been  disobeyed. 

It  is  sufficient  to  say  in  the  present  case 
that  respondent  is  not  one  of  the  officers 
named  in  the  statute,  who  are  required  to 
command  a  dispersal  and,  not  being  sucH,  the 
citizens  would  not  have  t>een  subject  to  ar- 
rest for  disobedience  of  his  command  if  made. 
It  follows  that  he  should  not  be  compelled 
to  take  such  action  by  a  writ  of  mandamus. 

In  this  disposition  of  the  case  before  us,  it 
is  not  intended  to  imply  that  the  writ  of 
mandamus  may  properly  Issue  In  similar 
cases.  No  opinion  la  expressed  upon  that  or 
any  other  of  the  many  questions  that  natural- 
ly suggest  themselves  in  the  case. 

The  order  of  the  circuit  court  is  affirmed. 

MONTGOMERY  and  OSTRANDER,  JJ., 
concurred  with  HOOKER,  J.  BLAIR,  C.  J., 
and  MOORE  and  McALVAY,  JJ.,  concurred 
in  the  result 


SPEER  V.   NAI.DRBTT. 
(Supreme  Court  of  Michigan.     July  15,  lOOD.) 

Appeal  Awn  Ebbob  (f  1002*)—Rbvkw— Con- 
flicting Evidence. 

Where  the  evidence  was  direc^tly  conflicting 

and  no  reversible  error  appears,  tbe  Judgment 

will  be  affirmed. 
[Ed.  Note.— For  other  cases,  see  Appeal  and 

Error,  Cent  Dig.  {  3935 ;  Dec.  Dig.  {  1002.*] 

Error  to  Circuit  Court   Gratiot  Coimty; 
Kelly  S.  Searl,  Judge. 
Action  by  James  H.  Speer  against  William 


•For  otbar  eaaet  lea  Mma  topic  and  Mction  MUUBBR  la  Dec.  *  Am.  Dlsa.  UOT  to  date,  *  Reporter  IndezM 


Digitized  by  VjOOQ  l€ 


Mlcb.) 


MAZWELIi  T.  ilLE  CEMENT  &  LIMB  C!0. 


225 


T.  Naldrett    Judgment  for  plaintiff,  and  de- 
fendant brings  error.    Affirmed. 
Ai^ued  before  BLAIR,  C.  J.,  and  OSTRAN- 
.  VEB,   UOORE,   McALVAY,   and  BROOKE, 
JJ.      1 

JoKn  T.  Mathews,  for  appellant  William 
'A.  Bahlke,  for  appellee. 

HOORE,  J.  The  parties  to  this  litigation 
made  a  contract  reading  as  follows: 

"This  agreement  made  this  14th  day  of  Oc- 
totter,  1898,  between  J.  H.  Speer  of  Clarence, 
and  W.  T.  Naldrett  of  Ithaca,  that  first 
party  agrees  to  deliver  on  cars  at  Clarence, 
all  the  Hemlock  logs  be  has  on  Sec.  35,  in 
town  of  Reading,  Glare  Co.,  at  $3.50  per  M, 
the  logs  to  be  cnt  12  to  24  ft.  long,  as  second 
party  may  direct  from  time  to  time,  and  all 
logs  must  be  of  good  quality,  to  be  well  load- 
ed by  first  party  and  scaled  one  half  with 
Scribner  rule  and  one  half  with  Doyle  rule, 
•  *  •  on  skids  in  woods,  the  second  party 
to  pay  ($1.00)  when  scaled  &  $1.60  more  when 
to  the  R.  R.  track,  and  the  balance  when 
loaded  or  within  60  days  &  to  give  a  good  fair 
scale,  and  If  parties  cannot'  agree  on  scale 
they  are  to  have  a  disinterested  party  to  scale ; 
that  second  party  Is  to  take  200  M  feet  as 
fast  as  got  out — the  balance  to  be  loaded  as 
the  second  party  may  direct  during  the  month 
of  April  and  May  1899.  Except  what  first 
party  may  want  to  peel,  and  they  must  all 
be  loaded  on  or  before  the  16th  of  June  1899, 
to  be  loaded  in  coal  cars  If  second  party 
wishes.  J.  H.  Speer. 

"W.  T.  Naldrett" 

Mr.  Speer  cut  and  delivered  all  the  logs. 
Tbey  were  all  scaled  by  the  Doyle  scale,  and 
If  that  scale,  under  all  the  proofs  shown  by 
the  record.  Is  to  control,  plaintiff  has  been 
paid  in  full.  It  Is  his  daim,  however,  that 
half  of  them  were  to  be  scaled  according  to 
the  Scribner  rule,  and  that  he  has  never  done 
anything  to  waive  ^Is  right  to  have  them  so 
scaled.  ' 

This  case  originated  in  Justice  court  It 
was  appealed  to  the  circuit  court  Plaintiff 
recovered  a  Judgment  for  $124.27.  The  case 
Is  brought  here  by  writ  of  error.  We  quote 
from  the  brief  of  counsel  for  appellant: 

"The  main  contentions  of  the  defendant  up- 
on the  trial  were  two,  viz. : 

"(1)  That  as  a  matter  of  law  the  plaintiff 
by  his  statements  and  conduct  waived  his 
right  to  have  any  other  or  different  scale 
of  logs  in  question  than  was  accorded  to  him 
while  the  logs  were  in  the  woods  on  the  skids, 
and  is  estopped  from  claiming  any  other 
scale. 

"(2)  That  the  differences  between  the  par- 
ties were  finally  settled,  compromised,  and 
closed  by  the  payment  admitted  to  have  been 
made  January  8,  1900,  which  was  by  the  giv- 
ing of  a  check,  upon  which  was  written,  'Pay- 
ment in  full  for  logs.' 

"These  questions  are  raised  upon  the  record 


in  a  variety  of  ways;  by  exceptions  and  as- 
signments of  error  to  rulings  upon  motions 
to  direct,  requests  to  charge,  and  In  the 
charge  as  given,  which  will  be  discussed  in 
their  order,  under  a  classification  of  the  as- 
signments. 

"Beyond  these  two  questions  there  are 
many  assignments  of  error  upon  the  rulings 
of  the  court  as  to  the  admissibility  of  evi- 
dence, and  motions  to  strike  out  evidence, 
wblch  will  also  be  discussed  in  their  order." 

Counsel  then  proceed  to  discuss  at  length 
the  63  assignments  of  error  under  9  heads. 
The  briefs  and  the  330  pages  of  printed  rec- 
ord have  been  examined  with  care.  Nothing 
occurred  after  the  written  contract  was  made 
about  which  the  parties  are  agreed.  The 
testimony  in  relation  to  the  controlling  facts 
is  In  direct  conflict.  It  would  profit  no  one 
to  take  up  in  detail  the  questions  raised  by 
counsel  and  discuss  them.  The  circuit  Judge 
directed  the  conduct  of  the  trial  with  great 
care.  He  submitted  the  conflicting  claims  of 
the  parties  fully  and  fairly  to  the  Jury. 
We  find  no  reversible  error  In  the  record. 

Judgment  is  affirmed. 


MAXWELL  V.  ELK  CEMENT  ft  LIMB  CO. 
(Supreme  Court  of  Michigan.     July  16,  1909.) 

MaSTEB    and    SEBVANT    (g    190*)— iNJXrBIKS   10 

Sebvar't— Fellow  Sebvants. 

Plaintiff  was  directed  by  R.,  defendant's 
master  mechanic,  whose  orders  it  was  bis  duty 
to  obey,  to  ponr  water  on  a  burning  friction 
clutch  in  defendant's  mill.'  Plaintiff  procured 
the  water,  but  refused  to  put  out  the  nre  until 
the  machinery  was  stopped.  R.  went  Into  an- 
other room,  after  which  the  machine  stopped, 
and  plaintiff,  beinz  assured  that  it  wonld  be 
still,  stepped  one  foot  on  a  concrete  pier  and 
the  other  on  the  shaft,  and  began  nouring 
water  onto  the  clutch.  R.  was  stanaing  in 
front  of  plaintiff,  and,  pltUntifl  having  put  oat 
as  much  of  the  fire  as  he  could,  he  readied  the 
pail  to  R.,  and,  as  he  was  takine  the  pail, 
the  shaft  started,  and  plaintiff  was  thrown  mto 
the  gear  and  his  arm  crushed.  Held,  that  R. 
and  plaintiff  were  fellow  servants,  and  that  de- 
fendant company  was  not  liable  for  R.'s  as- 
surance that  the  machinery  would  be  still  while 
plaintiff  was  at  work  thereon. 

[Ed.  Note.— For  other  cases,  gee  Master  and 
Servant,  Cent  Dig.  i  438;  De«.  Dig.  |  190.*] 

Error  to  Circuit  Court,  Emmet  County; 
Frank  Shepherd,  Judge. 

Action  by  Asa  O.  Maxwell  against  the  Elk 
Cement  Sc  Lime  Company.  Judgment  for 
defendant,  and  plaintiff,  ]^ring8  error.  Af- 
firmed. 

Argued  before  MONTGOMERY.  OSTRAN- 
DER,  HOOKER,  MOORE,  and  BROOKE,  JJ. 

W.  S.  Mesick  and  A.  B.  Dougherty,  for  ap- 
pellant Bundy,  TraTis  &  Merrick  (Fitch  R. 
Williams,  of  counsel),  for  appellee. 

MOORE,  J.  The  plaintiff  was"  Injured 
while  in  the  employ  of  the  Elk  Rapids  Port- 
land Cement  Company.     The  defendant  Is 


•For  otber  cam  sea  (sme  toplo  and  geotlon  NUMBER  in  Das.  &  Am.  Digs.  1907  to  date,  t  Reporter  Indexes 
122N.W.r-15 


Digitized  by  VjOOQ  l€ 


226 


122  NORTHWESTERN  REPORTER. 


(low* 


the  successor  to  that  company,  and  It  is  con- 
ceded that,  if  the  former  company  was  lia- 
ble to  the  plaintiff,  he  is  entitled  to  a  Judg- 
ment against  defendant  The  plaintiff  was 
hired  by  Mr.  Bunce,  the  general  superintend- 
ent of  the  mill.  He  worked  at  various  things 
about  the  plant,  blaclcsmitbing,  putting  up 
buildings,  making  repairs,  millwork,  and 
such  things  as  he  was  directed  to  do  either 
by  Mr.  Bunce  or  by  Mr.  Ranldn. 

It  is  the  claim  of  plaintiff  that  he  was 
told  by  Mr.  Bunce  that  Mr.  Rankin  was 
master  mechanic,  and  to  obey  his  orders. 
His  account  of  the  accident  is  as  follows: 

"On  the  30th  day  of  December,  1902,  in 
the  afternoon  of  that  day,  I  went  into  the 
annex  north  of  the  mill.  At  the  beginning 
we  had  done  a  little  work  there  Just  before 
dinner,  something,  I  don't  remember  Just 
what  now.  But  I  had  some  tools  there  that 
I  had  left  there,  and  I  went  back  in  the 
afternoon  after  them,  and  saw  this  fric- 
tion clutch.  It  bad  been  working  a  little  too 
tight,  and  it  'bet'  and  was  burning.  I  could 
not  say  whether  it  was  blazing  or  not  at 
that  time.  It  was  smoking  at  least,  and  it 
had  to  be  put  out.  And  he  Instructed  me  to 
get  a  pail  of  water.  At  that  time  I  think  the 
water  was  all  shut  off  around  the  plant.  It 
was  in  the  winter  time,  and  the  pipes  had 
burst  and  everything,  but  I  knew  where 
there  was  a  pail,  and  I  went  out  and  got 
that.  There  was  a  ladder  standing  out  there 
from  the  concrete  pier.  It  would  be  hard 
for  me  to  explain  it  to  you  without  a  draw- 
ing or  something.  I  walked  up  on  this  lad- 
der until  I  got  up  nearly  to  the  top  of  the 
pier,  and  I  saw  that  I  couldn't  do  anything 
in  that  position  with  the  machinery  running, 
and  I  stopped  there,  and  when  Mr.  Ran- 
kin came  back —  He  had  stepped  out  and 
was  gone  a  minute  or  so,  and  he  came 
back  and  aaked  me  why  I  did  not  get  up  and 
put  the  fire  out.  Q.  H6  had  first  told  yon 
to  put  out  the  fire?  '  A.  He  told  me  to  go 
up  and  put  out  the  fire — get  a  pail  of  water 
and  put  out  the  fire.  But  I  could  not  reach 
the  fire  from  the  floor.  It  was  too  high  up. 
It  ran  over  my  head,  and  I  could  not  stand 
on  the  floor  and  take  the  pail  of  water  and 
get  the  water  on  the  burning  parts.  As  I 
only  tiad  one  pail  to  work  with,  my  idea 
was  to  make  the  water  go  as  far  as  I  could. 
It  would  be  troublesome  to  get  another  pail 
of  water  at  that  time.  Mr.  Rankin  asked  me 
while  I  stood  in  that  position  on  the  ladder 
there  why  I  did  not  get  up  and  put  out  the 
flre.  And  I  told  him  that  I  could  not  do 
anything  with  the  machinery  running.  He 
stood  there  and  looked  at  me  for  a  minute. 
I  told  him  that  if  he  would  stop  the  engine 
I  would  put  it  out  in  a  minute.  And  he 
disappeared  and  went  in  the  direction  of 
the  engine.  The  machinery  stopped  shortly 
afterwards,  but  I  did  not  step  over  until  he 
came  back  into  the  door  of  the  annex,  and 


then  he  asked  me  why  I  was  not  putting 
out  the  flre.  And  then  I  told  him  that  I 
wanted  to  know  that  the  machinery  was 
going  to  stand  still.  He  said:  'She's  all 
right  She  wiU  lay  still  now.'  At  that  I 
stepped  one  foot  on  the  concrete  pier  and 
the  other  on  the  shaft  and  began  pouring 
water  onto  the  clutch  to  put  out  what  I 
cotild  reach.  And  even  from  that  position 
I  could  not  reach  it  all.  Mr.  Rankin  at  that 
time  was  standing  right  in  front  of  me.  I 
didn't  see  any  one  else.  I  didn't  notice  any 
one.  After  I  had  done  what  I  could  I  reach- 
ed out  the  pail  for  him,  and  he  was  Just  in 
the  act  of  taking  It  when  the  shaft  started, 
and  it  threw  me  into  gear,  and  I  was  caught 
and  my  arm  was  crushed  to  pieces." 

No  other  eyewitness  to  the  accident  was 
sworn.  It  was  shown  t)iat  the  shaft  coul' 
be  stopped  either  by  stopping  the  engine  or 
by  throwing  a  clutch,  the  latter  method  be- 
ing very  easy  and  very  simple.  Neither  the 
engine  nor  the  clutch  was  in  the  room  where 
the  accident  happened.  It  is  very  clear 
the  shaft  was  not  started  by  any  act  of 
Mr.  Rankin,  tot  plaintiff  testified  that  Mr. 
Rankin  was  standing  Just  in  front  of  him 
when  the  shaft  started.  There  is  no  evi- 
dence in  the  record  as  to  what  started  the 
shaft  to  revolving  after  it  was  stopped.  No 
testimony  was  offered  on  the  part  of  de- 
fendant The  Judge  directed  a  verdict  in 
its  favor. 

It  is  the  claim  of  the  plaintiff  that  error 
was  committed  In  not  admitting  certain  tes- 
timony. We  do  not  think  these  assignments 
of  error  are  well  taken.  The  Important 
question  is  whether  the  case  should  have 
been  submitted  to  the  Jury.  It  Is  the  claim 
of  plaintiff  that  it  should  have  been,  be- 
cause he  followed  the  direction  of  Mr.  Ran- 
kin, who  was  the  alter  ego  of  defendant.  A 
comparison  of  the  record  in  this  case  witli 
that  of  Guest  v.  Illuminating  Co.,  150  Mich. 
438.  114  N.  W.  226,  will  make  It  difficult  to 
distinguish  them.  See,  also,  Amoe  v.  En- 
gineering Works,  151  Mich.  212,  114  N.  W. 
1010;  Corey  v.  Bridge  and  Iron  Co..  161  Mich. 
558,  115  N.  W.  737. 

Judgment  is  affirmed. 


MILLER  et  al.  v.  CITY  OF  DBS 
MOINES  et  al. 

(Supreme  Court  of  Iowa.     July  2,  1908.) 

1.  Municipal  Cobpobatxons  (|  241*)— Pdb- 
ucATioN  or  Council  Pboceedino8-*Bids 

rOB    WOBK— DiSCBIlIINATION    IJt    FAVOB    OF 

Union  Pbintebs. 

That  neither  in  the  notice  to  bidders  for 
the  votk  of  publishing  proceedings  of  a  city 
council.  In  the  resolutions  of  the  council  in  re- 
lation thereto,  nor  in  the  contract  for  the  work 
is  there  any  mention  of  union  shops  or  tbf 
use  of  the  union  label  is  not  decisive  of  the 
question  as  to  vhether  or  not  discrimioation 
was  made  in  favor  of  the  anion  printers,  if  it 


•For  othar  csica  see  same  topic  and  lectlon  NUMBER  In  Dec.  *  Am.  Dig*.  1907  to  data,  *  Beporter  Indas* 


Digitized  by  VjOOQ  l€ 


Iowa) 


KILLER  V.  CITY  OF  DBS  MOINES. 


227 


farther  appeared  with  reasonable  certainty  tbat 
thia  test  was  bn  tact  applied  in  awarding  the 
contract. 

(Bd.  Note. — ^BV>r  other  cases,  see  Municipal 
Oorporationa,  Gent  Dig.  i  673;    Dec.  Dig.  { 

2.  MlTRICIPAI,  OOBPOBAITOira  ({  211*)— PCBLI- 

CATion  OF  CoxTNCii.  PB0CEEDj,Nas— Bids  pob 

■WOBK    —    DlSCBIKINATION     <N     FAVOB     01 

Union  PBiirrKBa. 

In  letting  a  contract  for  publisliing  the  pro- 
ceedings of  a  city  council  to  tne  lowest  responsi- 
ble bidder  pursuant  to  city  ordinances,  a  discrim- 
ination in  favor  of  union  printers  is  an  abuse 
of  the  couneU's  legal  discretion  and  unlawful, 
whether  authorised  by  ordinance  or  not;  such 
diacrimination  tending  to  monopoly,  and  in- 
▼olring  the  denial  of  the  equality  of  right  and 
opportunity  to  which  every  bidder  is  entitled. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  {  673;  Dec.  Dig.  i 
24t.»J 

3.  MUNICIPAI,  COBPOBATIONS  (§  990*)— Rek- 
»DT  OF  TAXFATKB— TE8TINO  VALIDITr  OF 
CONTBAOT. 

A  city  taziMiyer  may  sue  to  test  the  validi- 

3'  of  contract  awarded  on  bids  arbitrarily  con* 
dered  in  determining  the  lowest  responsible 
bidder,  and  the  amount  by  which  the  tax  on  his 
indlvidaal  property  may  be  increased,  if  at  all, 
is  immaterial  to  his  right  to  sue. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Oorporations,  Cent  Dig.  |  2151;  Dec.  Dig.  f 
990.  J 

4.  MuNICIPAI,  COBFOBATIONB  {§  1000*)— REM- 
BDT  OF  TAXPATEB— TiSTMO  VALIDITT  OF 
CONTBACT. 

A  contract  for  city  printing  was  let  in  good 
faith  at  a  reasonable  price  to  the  lowest  respon- 
sible bidder  employing  union  labor,  and  before 
an  equitable  action  by  taxpayers  was  Gnally 
determined  in  their  favor,  on  appeal  from  a 
decree  upholding  the  contract,  the  work  had 
been  done  and  accepted  by  the  city,  a  tempora- 
ry injunction  against  performance  not  having 
been  sued  out,  and  the  printing  l>eing  required 
by  current  and  immediate  demands.  Held,  that 
it  would  be  manifestly  unjust  and  unconscion- 
able to  decree  repayment  of  the  money  paid 
for  the  work,  and  plaintiffs  were  not  entitled 
to  such  relief,  though  the  contract  was  held  to 
be  void. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Dec.  Dig.  f  1000.*] 

Appeal  from  District  Court,  Polk  County; 
Hugh  Brennan,  Judge. 

Action  In  equity  for  an  injunction  to  re- 
strain the  performance  of  a  contract  en- 
tered  Into  by  the  city  and  for  other  relief. 
Bill  dismissed,  and  plaintiffs  appeal.  The 
material  facts  are  stated  in  the  optuion.  Re- 
versed In  part,  and  affirmed  in  part. 

Bowen  &  Bremner  and  Parrish  &  Dowdell, 
for  appellants.  Wm.  H.  Bally,  C.  O.  Holly, 
and  W.  E.  Miller,  for  appellees. 

WEAVER,  J.  Ordinance  No.  452  of  the 
city  of  Des  Moines,  passed  December  17, 
1888,  and  amended  April  17,  1899,  enacts  and 
establishes  certain  regulations  concerning 
supplies  procured  or  purchased  for  the  use 
of  the  city.  So  far  as  Is  material  to  this 
case  said  ordinance  Is  in  the  following  words: 

"Advertising  for  Supplies.  Section  1.  The 
city  derk  la  hereby  required  to  advertise  In 
at  least  two  newspapers  published  In  the 


city  of  Dee  Moines  for  three  weeks,  two  In- 
sertions each  week,  for  bids  for  furnishing 
all  supplies  of  every  kind  for  the  several 
departments  of  the  city  not  required  to  be 
advertised  for  by  the  board  of  public  works. 
Whenever  such  supplies,  together  with  the 
printed  matter  required  to  be  advertised  for 
by  the  board  of  public  works.  Includes  print- 
ed stationery,  printed  blanks,  printed  re- 
ports or  other  printed  matter,  the  same  shall 
have  printed  thereon  the  Allied  Printing 
Trades  Covmcll  Label. 

"Statement  of  Supplies  Needed.  Sec.  2. 
Each  officer  or  board  in  charge  of  any  de- 
partment shall  furnish  and  flle  In  the  city 
clerk's  office  thirty  days  before  the  first  day 
of  each  fiscal  yeaf,  a  sworn,  detailed  state- 
ment of  the  supplies  necessary  for  bis  or 
their  department  during  the  next  fiscal  year. 

"Penalties.  Sec.  3.  Any  person  violating 
any  of  the  provisions  of  this  ordinance  shall 
be  subject  to  a  fine  of  not  less  than  ^  nor 
more  than  $10." 

On  December  19,  1699,  an  ordinance,  No. 
lOGO,  was  enacted  providing  that  all  pro- 
ceedings, ordinances,  and  resolutions  of  the 
city  council  shall  be  published  in  pamphlet 
form  under  such  regulations  as  may  be  im- 
posed by  the  council.  It  was  also  further 
provided  that  the  contract  for  the  production 
of  such  pamphlets  shall  be  let  to  the  lowest 
bidder  after  a  i>erlod  of  advertising  for 
proposals.  On  July  18,  1906,  Ordinance  No. 
1383  was  passed,  amending  section  3  of  Or- 
dinance 1060,  to  make  the  same  read  as 
follows:  "The  city  clerk  shall  each  year,  at 
the  time  of  advertising  for  bids  for  sup- 
plies, advertise  by  two  Insertions  In  each  of 
two  dally  papers  for  sealed  proposals  for 
publishing  said  pamphlets  for  the  next  year. 
Said  bids  when  received  shall  be  submitted 
to  the  council  at  their  first  meeting  after  bids 
are  received,  the  contract  shall  be  made  with 
the  lowest  responsible  bidder,  but  the  council 
may  reject  all  bids  and  direct  the  clerk 
to  advertise  for  uew  proposals;  each  bid 
shall  be  accompanied  by  a  certified  check  In 
the  sum  of  $50,  payable  to  the  order  of  the 
treasurer  as  security  that  the  bidder  will  en- 
ter Into  contract  for  doing  the  work,  and  give 
the  bond  required.  The  contract  shall  1)6 
prepared  by  the  solicitor  and  executed  by  the 
mayor  on  behalf  of  the  city,  and  shall  be  ac- 
companied by  a  bond  in  the  penalty  of  $500, 
with  a  corporate  surety,  conditioned  for  the 
faithful  performance  of  the  contract  Said 
contract  and  bond  shall  be  filed  with  the  city 
clerk,  but  the  city  shall  not  be  bound  there- 
by until  the  contract  and  sureties  in  the  bond 
have  been  approved  by  the  city  council.  All 
ordinances  and  parts  of  ordinances  Inconsist- 
ent herewith  are  hereby  repealed." 

Pursuant  to  the  terms  of  the  last-mention- 
ed ordinance  the  city  clerk  advertised  for 
proposals  for  the  work  of  publishing  the 
council  proceedings  for  the  year  beginning 


*rw  oOmt  easn  ■«•  lama  topic  and  lectlon  NUMBER  la  Dm.  *  Am.  Dtgt.  1907  to  date,  *  Reporter  Index** 


Digitized  by  VjOOQ  l€ 


228 


122  NORT&WESTBRN  BBPOBTER. 


(Iowa 


Aprfl  1,  1908.  Responding  to  this  call  bids 
were  tendered  by  eight  different  firms  or 
companies  doing  business  as  Job  printers  in 
tlie  city  of  Des  Moines,  as  follows: 

Bischard  Bros. SI  12  per  page. 

Welch  PrinUng  Company...  1  01  "  *' 

Iowa  Printing  Company 97  **  " 

Register  &  Deader  Company  95  "  " 

Kenyon  Printing  Company..  93  "  " 

Homestead  Company. 92  "  " 

O.  A.  Miller  Printing  Compa- 
ny    89^  "  " 

Globe  Publishing  Company..  89  "  " 

On  May  14,  1908,  the  conndl  voted  to 
award  the  work  to  the  Register  &  Leader 
Company,  and  directed  the  mayor  to  enter 
Into  a  contract  with  said  company  on  the 
terms  of  its  bid.  The  contract  was  executed 
accordingly  on  or  about  the  date  last  men- 
tioned, and  the  printing  of  the  council  pro- 
'ceedings  for  the  fiscal  year  has  been  done 
by  the  Register  &  Leader  Job  ofllce  nnder 
the  terms  of  said  agreement  On  May  10, 
1908,  this  action  was  instituted.  The  plain- 
tiffs are  taxpayers  in  Des  Moines,  and  are 
severally  engaged  in  business  as  Job  print- 
ers in  said  city.  The  mayor,  the  city  auditor, 
clerk  and  treasurer,  and  the  Begister  &  Lead- 
er Company  are  impleaded  with  the  city  as 
defendants.  The  petition  alleges  that,  of  the 
eight  bidders  for  the  work  of  printing  the 
council  proceedings  as  hereinbefore  shown, 
the  four  whose  bids  were  lower  than  the  bid 
of  the  Riglster  &  Leader  Company  conducted 
what  is  known  as  nonunion  oflSces — that  is, 
the  said  bidders  did  not  employ  exclusively 
what  is  known  aa  "^nlon  labor" — and  for 
that  reason  none  of  them  was  authorized 
to  mark  its  work  with  the  "union  label," 
for  which  reason,  as  they  allege,  the  city 
council  wrongfully  and  without  authority 
of  law  excluded  the  bids  of  such  nonunion 
competitors  from  consideration  In  awarding 
the  contracts  and  awarded  it  to  the  Register 
&  Leader  Company,  not  because  it  was  the 
lowest  responsible  bidder  in  fact,  but  because 
it  was  the  lowest  bidder  among  the  union 
ofiBces  competing  for  the  Job.  The  petition 
proceeds  to  aver  that  each  of  the  nonunion 
bidders  Is  the  proprietor  of  a  well-establish- 
ed Job  printing  business,  with  an  oflSce  well 
Burolied  with  all  facilities  to  do  good  work 
of  the  kind  required,  and  was  and  Is  at  all 
times  ready,  able,  and  willing  to  do  such 
work.  Each  is  also  alleged  to  be  pecuniarily 
responsible,  able  to  provide  the  bond  re- 
quired by  the  ordinances,  and  is  in  all  re- 
spects as  able  and  as  well  qualified  to  do  and 
perform  said  work  as  are  any  of  the  compet- 
ing union  offices,  save  only  in  the  right  to 
attest  their  printed  matter  by  the  use  of  the 
onion  label.  Plaintiffs  also  allege  that  0> 
dinance  No.  452,  as  amended  by  No.  966,  is 
void  and  of  no  effect  as  an  attempt  to  au- 
thorize an  unlawful  dlBcrlmination  between 
bidders  of  equal  qualification  and  merit, 
thereby  unreasonably  restricting  competition 
jUDong   bidders,   and   imposing   undue   bur- 


dens upon  the  taxpayers  of  the  dty.  They 
allege  that  the  council  did  follow  and  observe 
the  provisions  of  said  void  ordinance  in  let- 
ting the  contract  in  question,  whereby  the 
contract,  as  made,  calls  for  an  expenditure 
of  the  public  funds  largely  In  excess  of  the 
sum  which  would  have  been  required  had  it 
been  let  to  the  lowest  responsible  bidder 
as  in  law  and  in  right  it  should  have  been. 
On  this  showing  it  is  asked  that  a  decree 
be  entered  adjudging  said  Ordinance  No. 
452  to  be  void,  and  that  the  city,  its  council 
and  officers,  be  enjoined  from  carrying  out 
the  contract  made  with  the  Register  & 
'L«ader  Company,  and  from  issuing  or  paying 
any  warrants  upon  the  city  treasury  for  work 
done  under  said  contract,  and  for  general 
relief.  Answering  the  petition,  the  defend- 
ants say  that  the  contract  was  let  to  the 
Register  &  Leader  Company  because  it  was 
the  lowest  responsible  bidder  for  the  work; 
that  the  use  of  the  union  label  is  a  guaranty 
of  the  character  of  the  work  to  which  it  Is 
attached,  and  of  the  skUl  and  labor  employ- 
ed therein,  and  that  said  label  is  copyrighted, 
but  the  use  thereof  is  free  to  all  persons  who 
comply  with  certain  reasonable  conditions. 
They  also  deny  that  plaintiffs  have  any  such 
interest  In  the  matter  of  said  contract  for 
printing  the  council  proceedings  as  enables 
them,  to  maintain  this  action,  and  allege  that 
the  difference  in  expenditure  between  the 
cost  of  the  printing  at  the  contract  price  and 
the  cost  computed  on  the  basis  of  the  low- 
est bid  therefor  is  only  about  $120 — a  merely 
nominal  sum  as  compared  with  the  taxable 
value  of  property  within  the  city — and  that 
It  is  therefore  impossible  that  plaintiffs 
should  be  irreparably  injured  l>ecanse  of  the 
alleged  wrong  or  Irregularity  in  the  manner 
of  letting  the  contract  They  also  deny  eacli 
and  every  allegation  of  the  petition  Imput- 
ing to  them  any  wrongful  or  unlawful  act 
or  purpose  in  the  consideration  of  the  bids 
or  in  awarding  the  work  to  the  successful 
competitor.  No  preliminary  Injunction  was 
issued,  and  some  six  months  after  the  com- 
mencement of  this  action  plaintiffs  filed  an 
amendment  to  their  petition  alleging  that 
during  all  the  time  since  the  filing  of  the  peti- 
tion the  city  and  the  Register  &  Leader  Com- 
pany have  been  carrying  out  the  contract 
made  as  aforesaid,  in  that  in  compensation 
of  the  work  so  done  the  city  has  paid  the 
said  company  considerable  sums  of  money, 
for  a  return  of  which  Judgment  is  demanded. 
The  Register  &  Leader  Company  answer 
these  complaints  by  alleging  that  it  was  duly 
adjudged  by  the  council  to  be  the  lowest  bid- 
der, and  that  no  consideration  other  than  the 
amount  and  character  of  the  work  and  the 
price  to  t>e  paid  entered  Into  or  was  con- 
sidered in  awarding  to  it  the  contract;  that 
relying  on  said  contract,  and  carrying  ont 
its  terms  in  good  faith,  it  has  performed  the 
work  demanded  by  the  city,  and  received  its 
pay  therefor,  and  that  the  price  paid  la  rea- 


Digitized  by  VjOOQ  l€ 


Iowa) 


MILLER  y.  CITT  OF  DES  UOINEa 


!229 


Bonable  and  Just.  It  also  avers  that  the 
use  of  the  nnlon  label  on  the  printing  done 
was  not  considered  or  in  any  manner  re- 
ferred, to  In  the  bid  of  said  company  or  In 
the  contract  entered  into  between  It  and  the 
city  for  the  said  work.  All  the  defendants 
aver  that  Ordinance  No.  452  was  repealed 
by  Implication  In  enacting  Ordinance  No. 
1383. 

1.  The  controversy  presented  by  this  ap- 
peal is  complicated  by  very  few  disputes  of 
fact,  while  the  questions  of  law  Involved, 
though  not  entirely  easy  of  solution,  are  not 
difficult  to  state.  The  fact  with  which  we 
are  at  this  time  principally  concerned  has 
reference  to  the  manner  and  method  pur- 
sued by  the  city  councU  in  passing  upon  the 
proposals  tendered  by  the  several  bidders 
already  named,  and  the  considerations  upon 
which  the  award  was  made.  The  evidence  la 
undisputed  that,  with  the  possible  exception 
of  one,  each  of  the  bidders  whose  offer 
was  lower  than  that  of  the  Register  &  Lead- 
er Company  was  amply  able,  ready,  and  will- 
ing to  accept  the  contract  on  the  basis  of 
their  several  bids,  and  to  perform  the  same 
promptly  In  an  efficient  and  workmanlike 
manner.  Nor  is  there  any  dalm  that  the 
sufficiency  of  their  qualifications  in  this  re- 
spect was  unknown  to  any  member  of  the 
counclL  They  were  well-known  proprietors 
of  job  printing  offices  in  the  city,  or,  If  not 
well  known,  there  Is  not  the  slightest  evidence 
of  any  attempt  on  the  part  of  any  member 
of  the  council  to  Inquire  into  the  facts  and 
ascertain  whether  they  or  any  of  them  could 
perform  the  work  If  awarded  the  contract 
The  council  at  the  Ume  in  question  consisted 
of  a  mayor  and  four  members  as  follows: 
Mayor  A.  J.  Mathis  and  Ck>uncllmen  McVicar, 
Ash,  Hamery,  and  Schramm.  Of  these,  the 
first  four  were  called  as  witnesses  by  the 
plaintiff,  and,  upon  being  interrogated  as  to 
the  awarding  of  the  contract  and  the  rea- 
sons controlling  the  same.  Mayor  Mathis, 
after  saying  that  he  speaks  only  for  himself, 
proceeds  as  follows:  "I  Investigated  far 
enough  to  know  that,  at  the  time  this  reso- 
lution was  passed,  that  the  company  the 
contract  was  awarded  to  used  the  union  label 
In  accordance  with  the  ordinance  passed  some 
years  ago.  That  was  as  far  as  I  went  when 
I  determined  that  the  Register  it  Leader 
Company  was  the  lowest  bidder  who  used 
the  union  label.  In  addition  to  that  I  was 
fully  satisfied  that  they  would  do  good  work. 
•  •  •  I  carried  my  investigation  far 
enough  to  determine  that  the  Register  & 
Leader  Company  nsed  the  union  label,  and 
that  was  as  far  as  I  went  They  had  done 
good  work  for  me.  I  knew  that  they  were 
prompt  In  those  things.  *  *  *  I  made  no 
investigation  whether  the  Kenyon  Printing 
Company,  the  George  A.  Miller  Printing  Com- 
pany, the  Homestead,  or  the  Globe  Publish- 
ing Company  could  do  the  work  in  a  prompt 
aod  efficient  manner."    Mr.  Ash  having  tes- 


tified that  he  had  Inquired  as  to  the  kind  of 
work  done  by  the  Register  &  Leader  Com- 
pany, and  found  that  It  had  a  good  reputa- 
tion for  promptness  and  quality  of  work, 
further  says  that  the  provisions  of  Ordinance 
No.  452  were  talked  of  between  him  and  the 
city  clerk,  and,  while  he .  had  no  personal 
knowledge  on  the  subject,  he  understood  that 
the  Kenyon  Printing  Company,  the  George 
A.  Miller  Printing  Company,  the  Homestead, 
and  the  Globe  Publishing  Company  were  non- 
union offices.  It  was  not  his  understanding 
when  the  vote  was  taken  that  the  council 
intended  to  let  the  work  to  the  lowest  union 
bidder  without  regard  to  the  quality  of  the 
work,  but  "to  the  lowest  responsible  un- 
ion bidder  whose  work  came  up  to  the 
standard."  Mr.  Hamery  testifies  that  he 
made  some  Investigation  prior  to  the  award, 
and  found  that  there  was  some  objection  to 
the  Globe  Publishing  Company  on  account  of 
the  quality  of  some  work  It  had  done  for  the 
city  on  a  former  occasion.  He  further  says: 
"I  ascertained  that  the  Register  &  Leader 
Company  was  the  lowest  union  bidder.  In 
my  observation  I  have  always  found  that 
union  labor  is  the  best  labor  that  can  be 
obtained  for  the  money,  and,  consequently, 
I  gave  my  vote,  thinking  they  would  use 
the  best  labor.  I  did  not  make  any  inquiry 
to  ascertain  whether  any  of  the  companies 
bidding  lower  than  the  Register  &  Leader 
were  paying  higher  wages  than  the  union 
scal&  My  idea  was  to  get  the  best  respon- 
sible bidder,  and  get  the  best  work  for 
the  money,  and  get  it  out  In  a  short  time, 
and  my  conclusion  as  to  this  being  the  best 
bid  was  because  union  labor  supplies  the 
best  work."  Mr.  McVidtr  being  called  to  the 
stand  was  asked  whether  the  provisions  of 
Ordinance  452,  requiring  the  nnlon  label  on 
matter  printed  by  the  city,  was  taken  Into 
consideration  by  the  council  in  awarding  the 
contract,  answered:  "It  was  a  consideration, 
but  not  the  only  consideration."  On  cross- 
examination  he  added  that  the  council  took 
into  consideration  the  responsibility  of  the 
bidder,  its  equipment  for  the  work,  and  its 
promptness  in  performing  Its  contracts.  It 
was  Important  that  the  proceedings  be  pub- 
lished accurately  and  promptly  and  at  a  rea- 
sonable price.  These  things  were  of  equal 
or  greater  Importance  than  union  labor.  On 
redirect  examination  as  to  his  Investigation 
and  knowledge  of  the  ability  of  the  lower 
bidders,  he  said:  "I  had  experience  with 
the  Kenyon  Company  when  it  was  a  union 
shop — when  it  was  a  reliable  firm.  Have 
had  no  experience  with  it  when  It  was  an 
open  shop.  Its  bid  of  03  cents  per  page 
was  a  reasonable  price  for  the  work.  Had 
no  experience  with  the  Homestead  Company 
and  knew  nothing  to  the  contrary  of  their 
being  a  reliable  sh*^.  Did  not  know  but  they 
were  perfectly  reliable,  efficient,  and  prompt 
Had  no  fact  on  which  to  determine  that  they 
were  not,  except  they  were  employing  m^n- 


Digitized  by  VjOOQ  l€ 


230 


122  NORTHWESTERN  REPORTER. 


(Iowa 


union  labor.  When  tbe  George  A.  Killer 
Company  was  a  union  shop  their  work  was 
all  rlgbt  I  have  no  fact  on  which  to  con- 
clude that  they  were  not  a  reputable  shop 
now.  or  on  May  7th  except  their  employment 
of  nonunion  labor.  And  the  same  Is  true  of 
the  Kenyon  Company.  The  prior  work  of  the 
Ulobe  Company  had  not  been  acceptable,  and 
it'  was  not  properly  equipped  to  handle  the 
work.  My  experience  is  that  there  is  a  dif- 
ference In  union  and  nonunion  printing,  and 
I  would  give  the  union  shop  the  preference 
Ijecause  I  think  I  would  get  better  work. 
In  awarding  the  contract  I  took  nothing  Into 
consideration  except  those  things  I  regarded 
necessary  tor  tbe  best  interests  of  the  city, 
and  I  think  the  same  considerations  control- 
ted  the  other  members  of  the  council."  The 
fourth  councilman,  Mr.  Schramm,  was  not  a 
witness  on  the  trial. 

We  shall  not  take  time  for  an  extended 
discussion  of  this  evidence.  Considered  In 
the  light  of  all  tbe  facts  developed  on  the 
trial  it  Is  Impossible  to  escape  the  conclusion 
that,  whether  Ordinance  No.  452  was  or  was 
not  regarded  by  the  council  as  of  any  pres- 
ent force  or  validity,  the  nonunion  bidders 
for  this  work  were  excluded  from  the  compe- 
tition, not  because  they  lacked  financial  re- 
sponsibility, business  facilities,  office  equip- 
ment, experience,  or  reliability,  but  because 
they  employed  nonunion  labor,  and  the  con- 
tract was  awarded  to  a  higher  bidder  be- 
t'iiuse  it  was  the  lowest  among  those  bidders 
employing  union  labor.  It  may  be  true  that 
Vn  the  absence  of  union  bidders,  or  possibly 
in  the  absence  of  any  competition  between 
union  bidders,  the  ^uncil  would  have  felt 
at  liberty  to  award  the  contract  to  a  non- 
union shop,  but,  with  both  present  and  bid- 
ding, there  is  here  exbiblted  a  set  purpose 
to  give  the  preference  to  a  union  bidder  even 
at  a  larger  price,  so  long  at  least  as  there 
was  reason  to  believe  the  latter  able  to  per- 
form the  required  service  satisfactorily.  It 
is  said  by  appellees,  and  correctly,  that  nei- 
ther in  the  notice  to  bidders,  the  resolutions  of 
the  city  council,  nor  in  the  contract  with  the 
iteglstcr  &  Leader  Company  is  there  any  men- 
tion of  union  shops  or  of  the  use  of  the  union 
1al>el ;  but  this  is  not  decisive  of  the  question 
at  issue,  if  it  further  appear  with  reasonable 
certainty  that  this  test  was  in  fact  applied  in 
.awarding  the  contract,  and  discrimination 
jnade  between  the  bidders  upon  that  ground. 
That  such  discrimination  was  made  Is  blunt- 
ly admitted  by  the  mayor,  tbe  official  head  of 
the  council.  The  testimony  of  the  three 
counclimen  on  this  point  is  somewhat  more 
diplomatic  in  expression,  but  i>oInts  not  less 
unerringly  to  the  same  conclusion.  In  other 
words,  with  eight  equally  competent  and  re- 
sponsible bidders  seeking  the  contract,  com- 
)>etitIon  was  limited  by  the  council  to  the 
four  highest  upon  the  list,  because  they  or 
some  of  them  were  privileged  to  use  the  un- 
ion label,  while  the  four  others,  whose  bids 


were  lower  than  tbe  lowest  union  bidder, 
were  excluded  because  of  their  employment 
of  nonunion  labor.  We  have  then  to  Inquire 
whether  such  discrimination  is  within  the 
discretion  which  the  laws  of  the  state  and 
the  ordinances  of  the  city  gave  to  the  coun- 
cil. No  attempt  is  made  in  argument  to  up- 
hold the  validity  of  Ordinance  No.  452.  That 
it  is  an  unwarranted  excess  of  the  legislative 
power  vested  in  the  council  is  too  clear  for 
argument  Government  is  instituted  for  the 
benefit  of  all  the  people  and  not  for  the 
benefit  of  any  one  class  to  the  exclusion  of 
others.  City  officials  are  charged  with  the 
collection  and  disbursement  of  vast  sums  of 
money  to  which  all  the  people  must  contritH 
ute  in  proportion  to  their  estate  without  re- 
gard to  social  position,  political  affiliation, 
religious  belief,  or  economic  theories.  Ex- 
perience has  shown  that  the  Interests  of  tbe 
taxpayers  are  best  conserved  by  offering  con- 
tracts for  public  work  to  the  competition 
of  all  persons  able  and  Willing  to  perform 
it  When  the  opportunity  to  compete  is  fair- 
ly and  openly  ouered,  and  contracts  are  fair- 
ly awarded,  there  Is  ordinarily  no  room  for 
official  or  private  graft  at  public  expense; 
but  Just  in  proportion  as  competition  Is  re- 
stricted, and  the  award  is  hedged  about 
with  express  or  implied  conditions  by  which 
a  favored  person  or  a  favored  class  is  in- 
sured a  preference  over  others  of  equal  abili- 
ty and  capacity,  public  rights  are  imperiled 
and  public  interests  are  sacrificed.  Such 
discrimination  tends  to  monopoly,  and  in- 
volves a  denial  of  the  equality  of  right  and 
of  opportunity  which  lies  at  the  foundation 
of  republican  institutions.  Appellees  argue 
that  this  ordinance  was  impliedly  repealed 
by  the  subsequent  ordinance  whidi  requires 
printing  contracts  to  be  let  to  the  lowest 
responsible  bidder,  and  that  its  validity  or 
its  invalidity  is  not  a  material  consideration 
here.  That  the  members  of  tbe  city  council 
did  not  regard  it  as  repealed  is  very  clear 
from  a  reading  of  the  record,  but  whether 
they  believed  it  of  binding  force  or  effect  is  a 
subject  into  which  we  do  not  stop  to  inquire, 
so  long  as  it  is  perfectly  apparent  that  they 
did  make  the  distinction  and  exclude  one- 
half  of  the  bidders  from  equal  opportunity 
and  consideration  in  the  competition.  Deal- 
ing with  a  very  similar  situation  tbe  Su- 
preme Court  of  Illinois  has  well  said:  "It 
is  immaterial  whether  there  was  any  at- 
tempted ordinance  as  a  basis  for  such  action, 
or  whether  it  had  been  approved.  The  stat- 
ute and  the  ordinance  required  the  contract 
to  be  let  to  the  lowest  bidder,  and  this  im- 
plied equal  opportunity  and  freedom  to  all 
who  might  choose  to  bid.  The  Sentinel  Demo- 
crat Printing  Company  could  not  claim  to  bo 
the  lowest  bidder  when  another  and  lower 
bid  was  rejected  under  such  an  arrangement 
to  prevent  other  persons  from  competing." 
Holden  v.  Alton,  179  III.  818,  53  N.  E.  556. 
If,  then,  as  tacitly  conceded  In  argument. 


Digitized  by  VjOOQ  l€ 


Iowa) 


MILLER  y.  CITY  OF  DBS  MOINES. 


231 


The  enactment  of  Btidi  an  ordinance  la  be- 
yond the  leglalatlve  aatborlty  of  the  city 
council.  It  followa  aa  a  matter  of  necessity 
that  It  cannot  indnlge  In  sndi  discrimina- 
tion in  its  admlnistratlTe  capacity.  The 
citizen  may  be  rich  or  poor  in  parse ;  anion 
or  nonunion  upon  the  labor  question ;  Catho- 
lic, Protestant,  Jew,  or  Infidel  in  matters  of 
religion;  Bepubllcan,  Democrat,  or  Prohlbl- 
tionlat  in  political  affiliation;  bat,  by  the 
stand  of  constltntlonal  and  statutory  right, 
be  la  neither  more  nor  less  than  a  citizen  of 
The  state,  entitled  to  an  equal  opportunity 
therein  according  to  the  capacity  and  ability 
with  which  nature  may  have  endowed  him. 
In  denying  him  that  opportunity  a  double 
wrong  is  i)erpetrated,  first,  upon  the  Indi- 
vidual who  Is  entitled  to  be  considered  upon 
his  personal  merits  uninfluenced  by  these 
extrinsic  conslderationB ;  and,  secondly,  up- 
on the  state  at  large,  whose  expenses  are 
multiplied,  and  whose  Integrity  Jeopardized 
Uy  a  system  of  favoritlsni,  the  demoralizing 
effect  of  which  is  patent  to  every  thought- 
ful student  of  public  affairs.  It  is  not  ma- 
terial that  the  sum  of  money  Involved  in 
this  controversy  Is  insignificant  as  compared 
with  the  city's  revenue  or  its  ability  to  pay. 
The  mischief  is  not  so  much  In  the  particu- 
lar case  under  review,  as  in  its  tendency  and 
in  the  far-reaching  consequences  of  legitimi- 
zing a  system  or  practice  so  pregnant  with 
evil  possibilities.  As  strikingly  in  point  in 
this  discussion,  we  quote  again  from  the  Il- 
linois court  In  passing  upon  an  order  of  a 
local  board  of  education  requiring  its  work 
to  be  done  by  union  labor:  "It  is  plain  that 
the  rule  adopted  by  the  board  and  Included 
Ip  this  contract  Is  a  discrimination  between 
different  classes  of  citizens  and  of  such  a 
nature  as  to  restrict  competition  and  to  In- 
r-rease  the  cost  of  work.  It  is  unquestionable 
that  If  the  Legislature  should  enact  a  stat- 
ute containing  the  same  provision  as  this 
contract  in  regard  to  any  work  to  be  done 
for  boards  of  education,  or  if  they  should  by 
a  statute  undertake  to  require  this  board  as 
an  agency  of  the  state  to  adopt  such  a  rule 
or  Insert  such  a  clause  in  its  contracts,  or 
should  undertake  to  authorize  it  do  so,  the 
provision  would  be  absolutely  null  and  void 
aa  In  conflict  with  the  Constitution  of  the 
state.  •  •  •  There  seems,  however,  to  be 
a  dalm  that  the  board  of  education,  al- 
though it  could  not  be  lawfully  required  or 
authorized  to  make  such  a  contract  may 
have  some  sort  of  discretion  so  to  do,  and 
the  only  question  In  the  case  on  the  subject 
is  whether  the  board  possesses  power  beyond 
that  of  the  Legislature,  in  which  is  vested 
the  entire  legislative  power  of  the  state. 
•  •  •  There  can  be  no  greater  power  of 
the  board  to  act  of  its  own  motion  than  by 
virtue  of  positive  law..  The  results  in  either 
case  are  equally  in.  conflict  with  organic 
law,  and  such  legislation,  contract,  or  action, 
whatever  form  it  may  take,  la  void.    Nor  can 


the  fact.  If  It  be  a  fact,  that  aa  Individual 
might  make  such  a  bargain  authorize  these 
officers  exercising  a  public  tmat  to  do  ao. 
The  individual  may,  if  he  chooses,  give  his 
money  away,  but  the  public  officer  acting  as 
a  trustee  has  no  such  liberty,  and  no  right 
to  surrender  to  a  committee  or  to  any  one 
else  the  rights  of  those  for  whom  he  acts." 
Adama  v.  Brenan,  177  111.  194,  52  N.  E.  814, 
42  L.  B.  A.  718,  69  Am.  St.  Rep.  222.  It  Is 
true  that  In  the  cited  (;ase  the  dlBcriminatiou 
condemned  by  the  opinion  was  expressly 
stipulated  for  In  the  contract,  but  the  prin- 
ciple is  no  less  applicable  to  a  case  where 
the  discrimination  is  actually  applied  in 
awarding  the  contract,  for,  the  right  and 
power  to  make  it  being  wholly  wanting  in  the 
Legislature  or  In  the  city  council,  the  result 
Is  the  same,  and  the  action,  "whatever  form 
it  may  take,  is  void." 

For  the  purposes  of  this  action  it  may  be 
freely  conceded  that  the  council  and  its  mem- 
bers acted  in  perfect  good  faith,  influenced 
by  the  belief  that  in  giving  the  contract  to 
the  lowest  union  bidder  they  were  in  some 
way  serving  the  best  Interests  of  the  city,  but 
the  question  here  presented  is  not  one  of 
good  faith,  but  of  power  and  Jurisdiction. 
Undoubtedly  there  is  good  authority  for  the 
proposition  that  in  selecting  or  ascertaining 
the  "lowest  responsible  bidder"  the  council 
may  take  into  consideration  the  comparative 
ability  and  qualification  of  the  several  bid- 
ders for  the  proposed  work,  and  that  the  low- 
est price  bid  is  not  In  every  instance  a  con- 
trolling factor.  But  this  rule,  if  adopted, 
presupposes  that  all  bidders  are  given  an 
equal  opportunity,  and  that  there  is  ap- 
plied to  them  no  arbitrary  classification  by 
which  those  of  one  class  are  to  receive  no 
consideration  so  long  aa  a  satisfactory  bidder 
can  be  found  in  the  other  class.  An  award 
BO  made  la  not  the  result  of  the  exercise  of 
legal  discretion.  It  is  manifest  abuse  of 
discretion.  Holden  v.  Alton,  supra;  Atlanta 
V.  Stein,  111  Ga.  789,  36  S.  B.  932,  51  L.  R. 
A.  335;  Attorney  General  v.  Detroit,  26 
Mich.  263;  Avery  v.  Job,  25  Or.  512,  36 
Pac.  293;  Falst  v.  Mayor,  72  N.  J.  Law, 
361,  60  Atl.  1120;  State  v.  Board,  57  N.  J. 
Law,  580,  31  Atl.  613;  State  v.  Toole,  26 
Mont.  22,  66  Pac.  496,  55  L.  R.  A.  644,  91 
Am.  St.  Rep.  386 ;  '  People  v.  Gleason,  121 
N.  Y.  631,  25  N.  E.  4 ;  Lewis  v.  Board,  139 
Mich.  306,  i02  N.  W.  756;  Inge  v.  Board. 
135  Ala.  187,  33  South.  678,  93  Am.  St  Rep. 
20;  Goddard  v.  Lowell,  179  Mass.  496,  61 
N.  B.  53.  That  a  taxpayer  may  maintain 
an  action  to  test  the  validity  of  contracts 
awarded  upon  bids  thus  arbitrarily  consid- 
ered and  other  contracts  in  excess  of  authori- 
ty is  also  well  settled.  The  amount  by  which 
the  tax  upon  his  individual  property  may 
be  increased.  If  at  all,  will  not  be  Inquired 
into.  The  case  so  presented  will  be  heard  on 
its  merits,  not  alone  to  protect  the  rights 
and  interest  of  the  individual  plaintiff,  but 


Digitized  by 


Google 


232 


tg2  MORTHWESTBBN  REPOBTEB. 


(Iowa 


to  safeguard  the  rights  of  the  general  public 
of  which  be  la  In  a  sense  the  representative 
in  the  action.  Inge  v.  Board,  supra ;  North- 
ern Co.  V.  Snyder,  113  Wis.  516,  89  N.  W. 
460,  90  Am.  St  Rep.  867;  Heath  t.  Albrook, 
123  Iowa,  559,  98  N.  W.  619;  Dunham  v. 
Fox,  100  Iowa,  131,  69  N.  W.  436;  Holden 
V.  Alton,  179  111.  318,  53  N.  B.  556.  ■  Finding 
as  we  do  that  the  award  of  the  contract  was 
made  arbitrarily,  and  not  in  the  exercise 
of  the  legal  dlscretlpn  of  'the  council  upon 
consideration  of  the  comparative  merits  of 
all  the  bids  presented,  we  must  hold  the 
action  void,  and  that  the  suit  to  adjudicate 
its  invalidity  Is  maintainable  by  the  plain- 
tiffs as  taxpayers  of  the  city. 

2.  We  have  left  us  to  consider  the  effect  of 
these  conclusions  upon  tiie  rights  of  the  party 
to  whom  the  contract  was  awarded.  There 
is  nothing  in  the  record  to  indicate  that  this 
bidder  or  any  other  of  the  competitors  em- 
ploying union  labor  acted  in  bad  faith,  or 
brought  to  bear  any  improper  Influence  upon 
the  council  to  secure  a  preference  in  the 
award,  but,  as  already  remarked,  the  good 
faith  of  any  or  all  of  the  parties  cannot  avail 
to  give  life  to  the  contract  when  it  Is  once  de- 
termined that  the  council  had  no  authority  to 
make  it  in  the  manner  in  which  it  was  at- 
tonpted  to  be  made.  If  the  contract  be  void 
as  we  have  found  it  to  be,  it  must  be  held 
void  as  to  all  parties  thereto.  In  anticipation 
of  this  holding  the  appellants  have  asked 
that  we  adjudicate  the  Register  ft  Leader 
Company  not  entitled  to  receive  payment  for 
the  work  it  has  done  under  this  contract,  and 
that  the  amount  paid  for  such  service  be  re- 
covered for  the  benefit  of  the  city  treasury. 
If  this  were  an  action  at  law,  and  the  holder 
of  the  cpntract  were  in  court  asking  a  recov- 
ery thereon  against  the  city,  the  demand 
would  be  denied  as  a  matter  of  course  and 
under  some  circumstances  a  return  of  the 
money  already  paid  could  well  be  adjudged. 
But  plaintiffs'  action  is  an  equity.  It  was  be- 
gun at  or  about  the  opening  of  the  fiscal  year. 
A  temporary  injunction  against  the  execution 
of  the  CQntract  was  not  sued  out,  nor  was 
any  measure  taken  to  prevent  the  parties 
from  proceeding  thereunder  except  as  to  pend- 
ency of  the  suit  might  act  as  a  deterrent  un- 
til after  the  cause  had  been  decided  In  the 
trial  court  and  its  decision  was  brought  here 
for  'review  upon  appeal.  Meanwhile,  the 
wheels  of  municipal  government  could  not 
stand  still,  and  public  printing  could  not  t>e 
suspended  pending  the  outcoqjie  of  slow  mov- 
ing litigation.  A  contract  was  outstanding 
which  if  finally  upheld,  would  render  the  city 
liable  to  the  contractor  for  withholding  the 
work  and  the  contractor  liable  to  the  city  for 
refusing  to  do  the  work  when  tendered.  The 
judgment  of  the  district  court  affirmed  the 
validity  of  the  contract,  and  from  that  date 
the  parties  had  apparent  judicial  sanction 
for  continuing  to  observe  its  apparent  obliga- 
tion. Under  such  circumstances  the  city 
could  not  well  readvertise  and  let  the  work 


to  another  contractor,  thud  adding  confusion 
to  a  situation  already  sufficiently  complicated. 
No  bond  had  been  put  up  by  the  plaintiffs  to 
indemnify  the  city  in  case  the  bill  was  dis- 
missed.    Er&x  had  a  temporary  Injunction 
issued  against  further  performance  of  the 
contract  it  was  probably  witiiln  the  general 
powers  of  the  city  to  procure  from  some 
source  the  printing  required  i»y  current  and 
immediate  demands  and  In  such  case  there 
was  nothing  to  prevent  its  applying  to  the 
same  company  so  long  as  the  woj*  was  prop- 
erly done  at  reasonable  ratM,-  In  any  event 
the  work  has  been  done ;   itnas  been  accept- 
ed by  the  city;    it  is  of  a  character  which 
cannot  be  returned  to  the  contractors  and 
thus  place  them  in  statu  quo;    it  is  work 
which  If  not  done  by  this  contractor  would 
have  to  be  done  by  some  other  person;   the 
prices  charged  are  not  shown  to  be  unreason- 
able;   the  Invalidity  of  the  contract  is  not 
chargeable  to  any  wrong  or  omission  on  the 
part  of  the  contractor,  but  solely  to  the  act  of 
the  city  through  its  council.    To  say  that  the 
party  doing  such  work  must  receive  no  remun- 
eration therefor,  and  must  return  the  compen- 
sation already  received,  is  to  impose  all  the 
penalty  upon  an  innocent  party  for  the  profit 
of  the  only  party  chargeablq  with  the  wrong. 
We  are  not  disposed  to  so  order.    Courts  of 
equity  often  refuse  to  enforce  a  naked  legal 
right  where  the  results  would  be  manifestly 
unjust   or   unconscionable.     An   illustrative 
case  Is  found  in  Pickett  v.  School  District, 
25  Wis.  551,  3  Am.  Rep.  105,  Involving  a  con- 
tract Improperly  made  by  the  governing  board 
with  one  of  its  members  for  the  building  of  a 
schoolhouse.    Before  the  building  was  entire- 
ly completed  litigation  arose,  and  the  district 
sought  to  have  the  contract  declared  void. 
The  court  there  approves  the  doctrine  that. 
In  cases  where  the  thing  contracted  for  is  It- 
self against  public  policy,  no  right  of  recov- 
ery exists  either  upon  the  contract  or  upon 
quantum  meruit ;  but  where  the  subject-mat- 
ter of  the  contract  is  itself  lawful  and  bene- 
ficial, and  the  objection  goes  only  to  the  man- 
ner or  method  in  which  it  has  been  awarded 
or  made,  it  is  inequitable  to  allow  the  party 
entitled  to  avoid  it  to  receive  and  retain  the 
benefit  without  any  compensation  at  all.    Un- 
der somewhat  similar  circumstances  the  Min- 
nesota court  has  said  that  if  property  which 
a  board  of  public  officers  is  authorized  to  pur- 
chase is  accepted  and  retained  by  the  munic- 
ipality it  is  just  and  reasonable  that  it  be 
held  for  the  reasonable  value  thereof,  al- 
though the  contract  of  purchase  under  which 
they  were  delivered  was  unauthorised  or  un- 
ratified.   "The  corporation  could  not  be  per- 
mitted to  repudiate  the  contract  and  retain 
the  fruits  of  it"  Currie  v.  District  85  Minn. 
163,  27  N.  W.  922.    In  point  also,  is  Gardner 
V.  Butler,  80  N.  J.  Eq.  702. 

We  apply  the  principle  to  the  case  before  us 
the  more  readily  from, the  fact  that  the  ap- 
peal was  not  submitted  to  this  court  for.  deci- 
sion before  the  expiration  of  the  term  for 


Digitized  by  LjOOQ  l€ 


Iowa) 


OOULTHAED  v.  MoINTOSH. 


233 


which  the  disputed  contract  was  made.  We 
might  perhaps  be  Jnstlfled  ia  refusing  to  pass 
upon  the  merits  of  the  controversy,  because, 
by  the  lapelng  of  the  contract,  the  dispnte 
over  Its  validity.  Is  to  a  great  extent  reduced 
to  a  discussion  of  academic  propositions.  In 
Tlew,  however,  of  the  Importance  of  the  case 
aa  a  precedent  we  have  felt  it  our  duty  to 
Ignore  that  feature.  Indeed,  we  assume  that 
appellant's  motive  In  bringing  the  action  was 
not  so  much  to  save  the  comparatively  trifling 
B<un  Involved  In  setting  aside  this  contract  as 
It  was  to  have  the  invalidity  of  the  proceed- 
ings by  which  the  award  was  made  adjudi- 
cated and  determined  as  a  protection  to  them- 
selves and  to  the  public  against  similar  irreg- 
ularities In  the  future.  That  end  is  attained 
by  oar  decision  as  already  announced.  With- 
out, ther^ore,  attempting  to  define  wtiat  rights 
at  law,  if  any,  the  city  may  have  with  re- 
spect to  do  so  mnch  of  the  contract  compen- 
■ation.  If  any,  as  remains  unpaid,  the  record 
as  It  stands  does  not  call  for  equitable  Inter- 
ferenca  For  the  reasons  stated,  the  decision 
of  the  district  court  dismissing  plaintiffs'  de- 
mand for  judgment  against  the  contractor  is 
affirmed,  and  in  aU  other  respects  reversed. 
Decree  will  be  entered  in  this  court  at  the 
option  of  the  appellants,  ezerdsed  within  80 
days;  otherwise,  the  cause  will  be  remanded 
to  the  trial  court  for  decree  not  Inconsistent 
with  the  views  here  expressed. 
Reversed  in  part.    Affirmed  In  part 


COULTHARD   v.  McINTOSH   et   al. 

(Supreme  Court  of  Iowa.     July  2,   1909.) 

1  TBIAI.    (I    199*)  —  iHSTBUCnONS  —  Sdbmis- 

sioR  or  QuEarnons  or  Law. 

In  an  action  to  recover  possession  of  a 
part  of  an  abandoned  riverbed  granted  to  plain- 
tiff by  the  state,  which  defendant  claimed  was 
not  within  the  state  when  the  grant  was  made, 
an  instruction  that,  if  the  river  had  gradaaily 
shifted  so  far  ont  of  its  channel  as  shown  by  a 
survey  that  the  land  in  controTersy  was  not 
on  the  Iowa  side  of  the  middle  thread  of  the 
stream  when  an  avnision  occurred  which  chang- 
ed its  course,  the  Jury  must  find  for  defendant, 
as  the  validity  of  the  patent  to  plaintiff  depend- 
ed on  whether  the  land  was  on  the  Iowa  side  of 
the  abandoned  bed,  was  not  objectionable  as 
Iiermitting  the  jnry  to  pass  npon  legal  ques- 
tions involving  the  validity  of  the  patent,  but 
only  stated  the  facts  which  would  render  the 
patent  Invalid,  nor  was  its  effect  to  permit  the 
jnry  to  determine  a  boundary  line  between 
states,  as  both  the  court  and  the  jury  assumed 
that  the  line  was  the  center  thread  of  the  main 
channel  of  the  river. 

[Ed.  Note.— For  other  cases,  see  Trial,  Dec. 
Dig.  i  199.*] 

Z  PuBUO   Lands   (I   116*)— Patents— Con - 

0LXT8IVBNE88. 

As  a  general  rule,  there  can  be  no  adju- 
dication of  title  to  property  so  conclusive  as 
to  prevent  a  showing  of  want  of  jurisdictional 
facta  so  as  to  make  the  adjudication  void,  so 
that  a  patent  granted  by  the  state  under  Acts 
30th  Qen.  Assem.  1904,  p.  166,  c.  1S3,  approv- 
ed April  11,  1904,  providln|  for  the  survey  and 
sale  of  abandoned  riverl>eas  within  the  juris- 


diction of  the  state,  is  only  presumptive  evi- 
dence that  the  land  granted  was  within  the 
state,  and  the  grant  may  he  rendered  void  by 
showing  the  contrary. 

[Ed.  Note. — For  other  cases,  see  Public  Lands, 
Dec  Dig.  i  lie.*] 

3.  Public  Lands   (S  113*)  —  Patents  —  Va- 
lidity—Ownebsrif   or  Land  Obantkd. 

Under  Acts  30th  Gen.  Assem.  1904,  p. 
166,  c.  185,  approved  April  11,  1904,  provid- 
ing for  the  survey  and  sale  of  abandoned  river- 
beds within  the  jurisdiction  of  the  state,  a  pat- 
ent of  land  within  the  jurisdiction  of  another 
state  wonld  t>e  void. 

[Ed.  Note.— For  other  cases,  see  Public  Lands, 
Dec.  Dig.  {  113.*] 

4.  Ejectment  (|  9*)— BintDEN  or  Paoor. 

An  action  to  recover  possession  of  land 
being    analogous    to    the    action    of    ejectment, 

Slaintiff  cannot  recover  on  the  weakness  of  the 
efendant's  title,  even  though  the  latter  be  a 
mere   trespasser. 

[Ed.  Note.— For  other  cases,  see  Ejectment, 
Cent.  Dig.  §  18;   Dec.  Dig.  t  9.*] 

5.  States  (|  12*)— Bocndabies— Rivebs. 

Where  the  thread  of  the  channel  of  a  nav- 
igable river,  which  is  the  houndaiy  line  between 
two  states,  gradually  shifts,  the  bonndarr  line 
shifts  with  the  river,  but  it  does  not  follow 
sudden  or  violent  changes  In  the  center  of  the 
stream  as  by  avulsion. 

[Dd.  Note.— For  other  cases,  see  States,  Cent. 
Dig.  I  8 ;  Dec.  Dig.  f  12.»] 

6.  BviDENOB  (I  144*)- Best  Evidence. 

In  an  action  to  recover  land  granted  by 
the,  state  as  a  part  of  an  abandoned  riverbed, 
which  was  the  dividing  line  Iietween  this  state 
and  another,  where  defendant  claimed  that  the 
center  of  the  stream  gradnally  shifted  before 
the  bed  was  abandoned  by  an  avulsion,  testi- 
mony of  old  settlers  who  had  known  the  stream 
for  more  than  60  years  was  competent  to  show 
the  shifting  of  its  course,  being  the  best  evi- 
dence the  circumstance  permitted. 

[Ed.   Note.— For  other  cases,   see   Evidence, 
Dec  Dig.  {  144.*] 

7.  Appeal   and  Ebbob   (f   930*)— Pbesuup- 
noNs  IN  Aid  or  Vebdict. 

On  an  appeal  from  a  judgment  for  defend- 
ant, on  the  ground  that  the  verdict  was  not 
supported  by  the  evidence,  the  Supreme  Court 
must  give  the  testimony  the  most  favorable 
construction  which  it  will  reasonably  b«ar  in 
support  of  the  verdict. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  i  3755;    Dec.  Dig.  §  930.*] 

8.  States  (§  12*)— Boundabies— R^vebs. 

While  property  owners  on  navigable 
streams  only  own  to  the  water's  edge,  states 
which  are  separated  by  such  a  stream  respec- 
tively extend  to  the  middle  thread  of  the  stream, 
so  that,  in  case  of  sudden  avulsion  causing  the 
stream  to  abandon  its  bed,  each  state  would 
own  the  abandoned  bed  up  to  the  middle  thread 
of  the  stream  before  the  avulsion. 

[Ed.  Note.— For  other  cases,  see  States,  Cent 
Dig.  I  8;    Dec.  Dig.  I  12.*] 

9.  Navigable    Watbbb    (|    44*)  — Rivkbs  — 
Avulsion. 

The  abandoned  channels  of  riverbeds,  re- 
ferred to  by  Acts  30th  Gen.  Assem.  1904,  p. 
166,  c.  185,  approved  April  11,  1904,  provid- 
ing for  the  survey  and  sale  of  abandoned  river- 
beds within  the  jurisdiction  of  the  state,  are 
not  such  as  are  created  by  accretions  and  re- 
lictions, but  by  sudden  avulsions. 

W'Ed.   Note.— For  other  cases,   see  Navigable 
aters,  Dec  Dig.  |  44.*] 


•FW  other  eases  see  same  topic  and  aectlon  NUMBER  is  Dec.  a  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  LjOOQ  l€ 


234 


122  NOBTHWESTSRN  BEPORXEB. 


(Iowa 


10.  Kttcmaxn  (I  86*)— Aohoks— Bvbdkr  of 

Pboov. 

In  an  action  to  recorer  land  franted  plain- 
tiff as  part  of  an  abandoned  riverbed,  puna- 
ant  to  Acts  SOtb  Oen.  Aasem.  1004,  p.  166, 
c.  185,  approved  April  11,  190i,  providing  for 
the  survey  and  sale  of  abandoned  riverbeds 
within  the  jurisdiction  of  the  state,  the  burden 
is  on  defendant,  who  claims  that  the  land  grant- 
ed was  not  within  the  jurisdiction  of  the  state, 
to  show  that  fact. 

[Ed.  Note.— For  other  rases,  see  Ejectment, 
Cent.  Diff.  U  23»-245;   Dec.  Dig.  i  86.*] 

Appeal  from  District  Conrt,  Harrison 
Connt7;    W.  B.  Green,  Judge. 

Action  at  law  to  recover  possession  of  a 
tract  of  land.  Verdict  and  judgment  for 
defendants,  and  plaintUf  aK>eal8.    Affirmed. 

J.  E.  Dewell  and  Boadifer  &  Arthur,  for 
appellant    8.  H.  Cochran,  for  appellees. 

WEAVEB,  J.  The  land  in  controversy  Is 
upon  or  near  the  western  boundary  of  the 
state,  and  the  dispute  to  be  here  -settled 
is  only  another  phase  of  the  confusion  In 
titles  whldii  has  arisen  from  the  frequent 
shiftings  of  the  channel  of  the  Missouri  riv- 
er. The  land  along  the  eastern  border  of 
the  river  was  surveyed  by  the  Cnited  States 
government  in  the  year  18S1  or  1862.  That 
survey  showed  township  79  N.  of  range  45 
W.  to  be  less  than  the  standard  measure- 
ment of  six  miles  square,  being  abbreviated 
to  some  extent  on  both  its  western  and  south- 
em  borders  by  the  river.  Section  34  of  this 
township  was  one  of  the  sections  which 
were  made  fractional  because  of  the  river 
on  the  south.  The  testimony  tends  to  show 
that  from  the  date  of  the  survey  for  a 
l)eriod  of  years  the  river,  which  at  this 
point  flowed  in  an  easterly  direction,  gradu- 
ally encroached  upon  the  Iowa  shore,  until 
practically  all  of  fractional  section  34,  with 
other  lands  on  the  east  and  west  were  erod- 
ed away,  the  river  channel  shifting  in  the 
same  direction  until  its  banlt  on  that  side 
nearly  or  quite  coincided  with  the  north  line 
of  said  section;  the  stream  being  at  ordinary 
stages  about  a  half  mile  wide.  After  reach- 
ing the  eastern,  or  rather  northeastern,  lim- 
it In  the  year  1^7  the  river,  by  some  flood 
ur  avulsion,  suddenly  develt^ptied  a  new  chan- 
nel a  mile  or  more  to  the  south  or  south- 
west, leaving  the  old  channel  practically 
i>rap^.  About  the  same  time  a  stream  known 
as  Soldier  river,  which  had  before  emptied 
into  the  Missouri  just  to  the  northwest  of 
section  34,  declined  to  follow  the  Missouri 
iu  its  recession  to  the  southwest,  and  sent 
its  waters  along  the  channel  abandoned  by 
the  larger  stream  until  it  joined  the  main 
river  several  miles  further  down  its  course. 
In  the  course  of  time  the  abandoned  chan- 
nel, except  so  far  as  it  bad  been  appropriated 
by  the  Soldier  river,  became,  in  part  at  least, 
dry  and  of  value  for  agricultural  purposesL 
The  land  now  in  question  Is  part  of  that 
which  was  uncovered  by  the  avulsion  or  sud- 


den change  in  the  river's  course,  wbldi  we 
have  referred  to  as  taking  place  In  the 
year  1857.  Some  14  years  prior  to  the 
commencement  of  this  proceeding  the  de- 
fendants, or  one  of  them,  entered  upon 
said  tract  under  a  dalm  of  right  of  some 
nature,  and  have  since  maintained  such  pos- 
session. By  an  act  of  the  Thirtieth  General 
Assembly  of  Iowa,  approved  April  11,  1904. 
provision  was  made  for  the  survey  and  sale 
of  abandoned  riverbeds  "within  the  Juris- 
diction of  the  state  of  Iowa"  (Acts  1904,  p. 
166,  c.  185>.  Thereafter,  on  application  by 
the  plaintiff,  a  survey  was  made  of  the 
lands  lying  Immediately  south  and  west  of 
the  Iowa  bank  of  the  abandoned  channel  here 
in  controversy.  By  this  survey  there  were 
platted  several  lots,  claimed  to  be  within 
the  area  of  said  channel,  and  on  the  Iowa 
side  of  the  central  thread  thereot  Of  these 
tracts  it  is  alleged  that  lot  No.  8  covers  In 
part  the  land  occupied  and  claimed  by  the 
defendants.  After  the  survey  had  been  com- 
pleted, plaintiff  received  from  the  state  of 
Iowa  a  patent  or  deed  of  conveyance,  which 
instrument,  after  reciting  the  statate^  the 
survey,  the  application  by  the  plaintiff,  the 
appraisement  of  the  land,  and  the  payment 
by  plaintiff  of  his  accepted  bid  therefor,  and 
the  grant  made  to  him  in  pursuance  of  said 
saie^  adds  thereto  the  following  clause:  "This 
deed  or  patent  Is  for  the  purpose  of  con- 
veying such  tiUe  and  Interest  in  the  above- 
described  tracts  of  land  as  the  state  owns  or 
possesses  and  has  the  right  to  convey."  It 
Is  under  this  patent  that  plaintiff  asserts  Utie 
and  right  of  possession.-  The  defendants  de- 
ny that  plaintiff  ever  acquired  any  Utie  to 
the  tract  In  controversy,  allege  that  it  lies 
within  the  territory  and  jurisdiction  of  the 
state  of  Nebraska,  and  that  they  are  the 
rightful  owners  thereof  by  adverse  posses- 
sion. 

In  submitting  the  case  for  a  verdict  the 
court  instructed  the  jury,  in  effect,  that 
the  issue  between  the  parties  turned  en- 
tirely upon  the  question  whether  the  land 
in  question  lies  upon  the  Iowa  side  of  the 
boundary  line,  and  therefore  within  the 
jurisdiction  and  authority  of  the  state  to 
make  tttie  thereto  to  the  plaintiff.  As  to 
the  rules  of  law  governing  the  considera- 
tion of  this  question  the  court  instructed 
as  follows: 

"(5)  The  law  with  reference  to  changes 
in  river  boundaries  la  this:  That  when  the 
banks  of  a  navigable  stream  or  river,  such 
as  the  Missouri,  change  by  slow  process  not 
visible  to  ordinary  observation,  the  river  still 
continues  to  mark  the  boundaries  of  the  re- 
spective states  along  Its  banks;  but,  when  by 
some  sudden  avulsion  of  the  stream  what 
is  known  as  a  cut-off  is  created,  so  that  a 
body  of  land  is  detached  in  such  a  way  that 
it  is  capable  of  being  identified,  the  bounda- 
ry lines,  whether  they  be  those  of  the  state 


•For  other  casea  see  same  topic  and  section  NUMBER  in  Dec.  A  Am.  Digs.  1907  to  date,  A  Reporter  Indexei 


Digitized  by  VjOOQ  IC 


Iowa) 


COULTHARD  v.  MclNTOSH. 


235 


or  of  property  owners,  remain  unchanged. 
There  is,  however,  tbls  important  difference 
to  be  kept  in  mind  between  the  boundaries 
of  a  state  and  those  that  limit  the  rights 
of  ptopecty  owners,  in  that  property  own- 
ers on  banks  of  navigable  streams  own  only 
to  the  water's  edge,  whereas  each  state  ex- 
tends up  to  the  middle  thread  of  the  stream ; 
and,  in  case  of  such  sudden  avulsion  of  the 
river,  the  respective  states — in  this  case  the 
states  of  Iowa  and  Nebraska — each  become 
the  owner  of  the  riverbed  so  abandoned,  to 
the  extent  of  the  middle  thread  of  the  stream 
as  It  formerly  flowed,  opon  its  respective  side 
thereof. 

"(Q  The  abandoned  diannels  of  riverbeds, 
referred  to  in  the  laws  of  the  Thirtieth  Gen- 
eral Assembly,  are  not  such  as  are  created 
by  slow  and  Imperceptible  accretions  upon 
one  side  and  wearing  away  upon  the  other, 
even  though  the  place  where  the  river  for- 
merly flowed  may  be  by  these  processes  en- 
tlrdy  deserted  by  Its  waters.  This  statute 
refers  only  to  riverbeds  abandoned  by  sud- 
den changes  or  avulsions  of  the  river,  such 
as  I  have  before  referred  to. 

"(7)  The  plaintiff  of  necessity  claims  that 
there  was  such  an  avulsion;  for,  If  there  was 
no  such  avulsion,  there  would  be  no  land 
to  which  he  could  claim  title  under  this 
statnt&  The  defendant  also  claims  there  was 
an  avulsion,  or  sudden  change  in  the  chaimel 
of  the  river,  about  1857,  but  the  parties  do 
not  agree  as  to  the  time  when  this  avtil- 
slon  occurred. 

"(8)  The  state  having  issued  to  the  plain- 
tiff a  patent  to  this  land  is  presumptive  evi- 
AeacB  that  the  land  conveyed  thereby  was 
part  of  an  abandoned  riverbed  or  channel 
which,  nnder  the  laws  above  stated,  belong- 
ed to  the  state  of  Iowa.  But  this  presump- 
tion is  not  conclusive,  and  ought  not  to  pre- 
vail if  a  preponderance  of  the  evidence  shows 
that  such  is  not  the  fact 

"9)  If  the  defendant  has  established  by  a 
lireponderance  of  the  evidence  that  the  land 
occupied  by  him  was  not  on  the  Iowa  or 
left  side  of  the  middle  thread  of  the  Missouri 
river  as  it  ran  at  the  time  the  avulsion  or 
cnt-off  in  question  occurred,  then  he  will  be 
entitled  to  yonr  verdict;  but,  if  he  has  fail- 
ed to  show  such  a  state  of  facts  by  a  pre- 
ponderance of  the  evidence,  then  your  ver- 
dict should  be  for  the  plaintiff. 

"(10)  The  plat,  which  has  been  offered  in 
evidence  by  the  plaintiff,  shows  that  the  lands 
claimed  by  him  are  situated  within  the  me- 
ander lines  of  the  Missouri  river  as  located 
by  the  survey  of  1852;  but  the  defendant 
claims  that  after  this  survey  was  made,  the 
channel  of  the  river  gradually  shifted  to  the 
north  until  In  1857,  when,  as  defendants 
claim,  the  avulsion  occurred  which  affected 
this  land  in  controversy.  If  the  river  at  the 
point  in  question  was  so  far  out  of  Its  chan- 
nel as  marked  by  the  survey  of  1852  that  the 
land  occupied  by  defendant  could  not  have 
been  within  its  bed,  and  on  the  Iowa  side  of 


the  middle  thread  of  the  stream,  when  the 
avulsion  occurred,  then  the  defendants  will 
be  entitled  to  your  verdict,  for  the  validity  of 
the  patent  issued  to  plaintiff,  must  depend  on 
whether  the  land  embraced  therein  was  in 
fact  on  the  Iowa  side  of  an  abandoned  l>ed  of 
the  Missouri  river,  as  the  term  'abandonment' 
is  defined  and  explained  in  these  instruc- 
tions. But,  as  before  stated,  the  burden  of 
proof  Is  upon  the  defendant  to  make  out 
such  Invalidity  of  the  patent  by  the  prepon- 
derance of  the  evidence." 

The  appellant  challenges  the  correctness  of 
these  instructions,  as  well  as  the  sufficiency 
of  the  evidence  to  sustain  the  verdict 

1.  It  iB  said  that  the  court  erred  in  permit- 
ting the  Jury  to  pass  upon  the  validity  of  the 
patent  The  charge  of  the  court  is  not  vul- 
nerable to  this  objection.  The  Jury  were 
not  permitted  to  determine  the  legal  prop- 
osition involved  In  this  case,  but  were  told 
what  facts,  if  proven,  would  render  the  pat- 
ent of  no  effect  upon  the  title  to  the  land. 
Whether  these  facts  had  been  established  by 
the  evidence  was  clearly  a  Jury  question. 
While  It  may  be  true,  and  the  court  so  in- 
structed the  Jury,  that  the  survey,  plat  and 
patent  by  the  state  authorities,  acting  osten- 
sibly under  the  statute  referred  to,  made  a 
presumptive  or  prima  facie  case  that  the 
land  described  in  said  proceedings  was  an 
abandoned  riverbed  within  the  state  of  Iowa, 
such  presumption  is  clearly  not  conclusive  up- 
on the  party  who  alleges  that  in  fact  the  land 
was  on  the  Nebraska  side  of  the  boundary, 
and  therefore  wholly  beyond  the  authorltj' 
and  Jurisdiction  of  the  state  officers  or  of  the 
state  itself.  Generally  speaking,  there  can  be 
no  adjudication  or  determination  of  the  title 
to  property  so  final  or  conclusive  that  a  par- 
ty adversely  interested  may  not  avoid  it  by 
showing  an  entire  absence  of  an  essential 
Jurisdictional  fact  And  certainly  If  the  land 
In  controversy  be  on  the  Nebraska  side  of 
the  I>oundary,  It  does  not  come  within  the 
contemplation  of  chapter  185,  p.  166,  of  the 
Laws  of  the  thirtieth  General  Assembly  of 
1904,  and  any  survey  of  the  riverbed  under 
the  authority  of  that  statute,  which  by  mis- 
take or  otherwise  extends  beyond  the  central 
thread  of  the  abandoned  channel  into  the 
territorial  domain  of  another  state,  is,  to  the 
extent  of  such  intrusion,  and  upon  the  most 
familiar  principles,  to  the  same  extent  void 
and  of  no  effect 

2.  Appellant  also  contends  that  defendants 
are  at  best  mere  trespassers  upon  the  land, 
and  therefore  not  entitled  to  defend  the  ac- 
tion now  before  us.  The  action  here  pending 
is  one  of  right — ^the  equivalent  of  the  ancient 
action  in  ejectment  Tne  defendants  are  in 
possession  acquired  by  them  long  before  ap- 
pellant acquired  the  alleged  title  under  which 
he  demands  possession  for  himself.  It  Is  a 
time-honored  rule  that  the  defendant  In  such 
proceedings,  even  though  a  trespasser  will  not 
be  ousted  at  the  suit  of  another  who  cannot 
show  right  of  title  In  himself.     In  other 


Digitized  by  VjOOQ  IC 


236 


122  NORTHWESTERN  REPORTER. 


(towa 


words,  to  use  a  familiar  expression,  he  muBt 
recover.  If  at  all,  on  the  strength  of  bis  own 
claim  of  right  or  title,  and  not  upon  the  weak- 
ness of  the  defense.  It  Is  therefore  the  right 
of  the  defendant  to  stand  npon  bis  prior 
possession,  with  or  without  claim  of  right, 
and  put  In  Issue  the  claim  of  the  plaintiff,  on 
whom  rests  the  burden  of  showing  a  supe- 
rior right  Reed  v.  Wright,  2  G.  Greene,  15; 
Lathrop  V.  Emigrant  Co.,  41  Iowa,  547;  Me- 
Carty  v.  Rochel,  85  Iowa,  427.  52  N.  W.  361; 
Hurlby  t.  Street,  29  Iowa,  429 ;  Schjosser  v. 
Crulckshank.  96  Iowa,  414,  65  N.  W.  344; 
Glenn  v.  Jeffrey,  75  Iowa,  20,  39  N.  W.  160. 
It  was  therefore  the  legal  right  of  the  defend- 
ants to  contest  the  validity  of  the  patent  held 
by  the  appellant  so  far  as  It  affected  the  title 
to  this  land ;  and,  if  the  showing  made  by  them 
was  sufBclent  to  sustain  a  finding  in  their 
favor,  it  is  final  as  to  all  parties.  Nor  is  the 
effect  of  this,  as  counsel  claim,  to  make  the 
jury  an  arbiter  to  settle  a  vexed  question  of 
state  botindarles.  Both  court  and  Jury  as- 
sume that  the  boundary  has  already  been  set- 
tled by  proper  authority  to  be  the  central 
thread  of  the  main  channel  of  the  river,  and 
whether  a  given  point  or  location:  Is  on  the 
Iowa  side  or  the  Nebraska  side  of  the  line 
is  a  simple  question  of  fact,  the  decision  of 
which  does  not  operate  In  the  least  to  unset- 
tle or  change  or  modify  the  territorial  limits 
or  authority  of  either  of  the  sovereign  states 
between  whose  jurisdictions  such  line  has 
been  drawn.  If  a  man  be  charged  with  crime 
in  this  state,  and  upon  his  trial  Introduces 
evidence  tending  to  show  that  the  act  charged 
against  him  was  done  in  another  state,  and 
not  in  the  state  of  Iowa,  this  defense  could 
not  be  ruled  out  on  the  ground  that  the  Jury 
Is  not  a  competent  body  to  settle  boundaries 
between  states. 

Nor  is  there  any  merit  In  the  claim  that  the 
verdict  without  substantial  support  in  the 
evidence.  The  boundary  line  being,  as  we 
must  assume,  the  middle  of  the  main  channel 
of  the  river,  and  the  river  being  peculiarly 
subject  to  gradual  encroachment  upon  its 
banks,  resulting  in  a  like  gradual  swaying 
of  such  channel  from  right  to  left,  or  vice 
versa,  followed  perhaps  by  a  like  similar  re- 
cession In  the  direction  of  its  former  bed,  it 
follows  upon  general  principles  of  the  law 
of  riparian  rights,  as  applied  both  to  individ- 
ual landowners  and  to  sovereign  states  rec- 
ognizing the  stream  as  a  common  boimdary, 
that  the  location  of  the  division  line  moves 
with  the  movement  of  the  channel ;  and  such 
line  as  it  existed  when  the  avulsion  of  1867 
occurred  may  not  have  been  coincident  with 
the  line  as  it  existed  at  the  date  of  the  gov- 
ernment survey  in  1852.  The  defendants  as 
we  have  seen  assert  that  between  1862  and 
1857  a  change  did  in  fact  take  place,  and  that 
the  river  had  eaten  its  way  into  the  Iowa 
shore  along  the  water  front  of  section  34, 
with  a  corresponding  movement  in  the  same 


direction  of  the  central  thread  of  the  channel. 
This  claim  has  support,  as  we  have  said,  in 
the  testimony  of  several  witnesses,  among 
whom  are  early  settlers  who  have  known  the 
stream  at  this  point  for  more  than  half  a 
century.  In  the  very  nature  of  things  the 
changes  which  have  marked  the  region  dur- 
ing this  prolonged  period  are  such  as  serve  ta 
envelop  all  statements  made  from  memory 
with  some  degree  of  uncertainty,  but  the  tes- 
timony offered  was  competent,  the  best  which 
the  circumstances  of  the  case  afforded,  and 
it  gives  reasonable  grounds  for  the  conclusion 
reached  by  the  Jury.  Under  the  evidence  the 
Jury  was  Justified  in  finding  that  the  river  at 
ordinary  stages  was  then  about  a  half  mile 
in  width,  and  that  the  median  line  of  the 
channel  (and  therefore  the  state  boundary) 
was  in  general  within  about  a  fourth  of  a 
mile  of  the  north  line  of  said  section  34,  a 
location  which  Is  very  considerably  north  and 
east  of  the  channel  as  retraced  by  the  survey 
under  which  the  appellant  claims  in  this  ac- 
tion. Wherever  the  channel  then  ran  its  cen- 
tral thread  constitutes  the  state  line;  for,  as 
we  have  already  seen,  while  said  line  follows 
the  gradual  variations  of  the  course  of  the 
stream.  It  does  not  follow  It  in  Its  sudden  or 
violent  changes.  In  support  of  the  verdict 
we  are  in  duty  bound  to  give  to  the  testimony 
the  most  favorable  construction  of  which  it  is 
reasonably  capable  for  the  defense,  and,  doing 
so,  it  is  very  clear  that  the  land  claimed  by 
the  defendants  is  on  the  Nebraska  side  of  th& 
state  boundary  as  left  by  the  avulsion  of  1857, 
and  that  the  patent  held  by  plaintiff  had  n» 
effect  to  convey  to  him  any  right  or  title 
therein.  The  law,  as  stated  by  the  trial 
court  and  approved  in  this  opinion,  finds  am- 
ple support  in  Nebraska  v.  Iowa,  143  U.  S. 
359,  12  Sup.  Ct.  396,  36  L.  Ed.  186.  Missouri 
V.  Nebraska,  196  U.  S.  23,  25  Sup.  Ct  155, 
49  L.  Ed.  372,  and  Coulthard  ▼.  Davis,  101 
Iowa,  625,  70  N.  W.  716. 

We  find  no  error  In  the  record,  and  the 
Judgment  of  the  district  court  is  affirmed. 


DELFS  V.  DUNSHEB. 
(Supreme  Court  of  Iowa.    July  2,  1909.) 

1.  EvinENCE    (J    536*)  —  COltPETKNCY    OF    EX- 
PERT —  CHABACTEBISTICS  '  AND    HABITS    OV 

Horses. 

A  witness  who  has  handled  horses  for  20 
years  and  has  observed  their  habits  and  conduct, 
especially  when  frightened,  is  competent  to  tes- 
tify as  an  enert  concerning  the  diaracterlatics 
and  habits  of  horses. 

[Ed.  Note.— For  other  cases,  see  Evidence. 
Cent  Dig.  §  2343 ;   Dec.  Dig.  {  536.*] 

2.  MaNiciFAi.  CoBPOKATioRs  ({  706*)— UsE  or 
Stbebts— Fbighteninq  Hobsb— Evidence. 

In  an  action  wherein  defendant's  liability 
tamed  on  the  question  of  frightening  the  plain- 
tiff's horse  on  tne  street  with  an  automobile,  evi- 
dence as  to  the  characteristics  and  habits  of 
horses  was  admissible. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  |  1518;  Dee.  Dig.  f 
706.*] 


•For  otiMT  CUM  sea  saiiM  topic  and  loctloii  NUMBER  in  Dec.  A  Am.  Dlgi.  1907  to  dat*.  *  Reporter  I&ilexe» 


Digitized  by  LjOOQ  IC 


Iowa) 


DELF8  ▼.  DU17BHBB. 


237 


8.  E^rIDE]ICB  d  471*)— Opijaow  Bvidknoe— 

CONCI.TrBI0R   OF  WlTHMS. 

In  an  action*  for  injuries  claimed  to  haTe 
been  canaed  hj  the  frlghtenine  of  a  horse  with 
an  automobile,  defendant,  after  testifying  to 
what  occnned,  was  asked  whether  there  was 
anything  in  the  appearance  of  the  horse  or  the 
position  of  the  driver  to  indicate  that  the  latter 
might  lose  control,  or  that  there  was  danger  of 
tronble.  Beld  properly  excluded  as  calling  for 
the  conclusion  of  the  witness. 

[Ed.  Note.— For  other  cases,  see  EMdence, 
Cent.  Dig.  {  2160;   Dec.  Dig.  |  471.*] 

4.  Evidence   (i  471^}— Opihioh  Btidekce— 

COMFOTATIOir   BY  WITNESS. 

In  an  action  for  injuries  claimed  to  have 
been  caused  by  frightening  a  horse  with  an  au- 
tomobile which  was  driven  past-  it  from  behind 
on  the  street,  which  was  sQown  to  be  60  feet 
wide  between  cnrbings  and  paved  with  a  double 
street  car  track,  the  inside  rail  being  23  feet 
from  the  curbing,  an  objection  to  a  question  to 
defendant  as  to  whether  in  passing  he  could 
have  gotten  farther  from  plaintifi's  cart  without 
coming  on  the  street  car  track  was  rightly  sus- 
tained, since,  as  the  width  of  the  automobile 
and  the  distance  of  plaintiff's  cart  from  the 
curb  were  shown,  Uie  Inquiry  merely  called  for 
computation. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  {  2160;    Dec.  Dig.  {  471.*] 

6.  municipai,  cokpobations  (j  70e*)— use  of 
Streets— Fbiohtenino  Hobse— Evidence. 

In  an  action  for  injuries  claimed  to  have 
been  caused  by  frightening  a  horse  with  an  au- 
tomobile ■whlca  was  driven  i>ast  it  from  behind 
on  the  street,  an  objection  to  a  question  to  de- 
fendant, as  to  whether  in  passing  he  could  have 
gotten  farther  from  the  cart  which  the  horse 
drew  without  getting  on  the  street  car  track, 
was  rightly  sustained,  because  there  was  no  ap- 

Iiarent  reason  for  avdding  the  track,  the  trol- 
ey  posts  being  in  the  center  of  the  street. 

[E^  Note.- For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  f  1618;  Dec.  Dig.  | 
706.»] 

8.  Municipal  Cobpobations  (S  706*)— Driv- 

INO    MOTOB    yEHICI.EB    ON    STBEETB— STATU- 
TOBT  RE0tn.ATI0NB. 

Acts  30th  Gen.  Assem.  1904,  p.  47,  c.  6S,  I 
8  (Code  Supp.  1907,  {  1671h).  prohibits  a  speed 
in  a  closelv  built  portion  of  the  city  of  more 
than  a  mile  in  six  minutes,  and  section  9  of 
the  same  chapter  (Code  Supp.  1907,  i  16711), 
provides  that  "any  person  operating  a  motor 
vehicle  shall  at  request,  or  on  signal  by  put- 
ting op  the  hand,  from  a  person  driving  a  rest- 
ive horse,  or  other  draft  or  domestic  animal, 
bring  such  motor  car  immediately  to  a  stop, 
and,  if  traveling  in  the  opposite  direction,  re- 
main stationary  long  enough  to  allow  such  horse 
or  animals  to.  pass,  and  it  traveling  in  the  same 
direction,  nse  reasonable  caution  in  passing  such 
animal."  Held,  that  this  only  defined  the  duty 
of  an  automobile  operator  on  request  or  signal, 
and  did  pot  relieve  him  from  the  obligation  on 
all  travelers  to  exercise  ordinary  care  for  the 
safety  of  others,  or  from  the  du^  of  exercising 
reasonable  caution  in  passing  a  horse  or  other 
animal  in  the  absence  of  any  request  or  signal. 
[Ed.  Note.— For  other  cases,  see  Municipal 
Corporationa,  Cent  Dig.  |  1616;  Dec.  Dig.  S 
705.»] 

7.  MiTNiciPAi,  Cobpobations  (§  705*)— Care 
REQtnBED— Use  of  Stbeet  bt  Motob  Vehi- 

CLES. 

One  ma^  travel  in  a  motor  vehicle  on  the 
itreets,  biit  in  doing  so  the  care  exacted  neces- 
nrily  depends  somewhat  on  the  rate  of  speed, 
size,  and  appearance,  manner  of  movenient, 
noise,  and  the  like  of  such  vehicle,  as  well  as 


the  means  of  locomotion  of  others  on  the  high- 
way. 

[Ed.  Note.-^For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  i  1616;  Dec.  Dig.  § 
706.»] 

8.  Municipal  Cobpobationb  (|  706*)— Use  of 
Streets— ATnoMOBiLES — Speed  Ldot. 

To  move  an  automobile  in  a  city  street  at 
a  higher  speed  than  lO  miles  an  hour,  in  viola- 
tion of  Acte  30th  Gen.  AasenL  1901,  p.  47,  c. 
53,  I  8,  is  negligence. 

[Eld.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  i  1616;  Dec.  Dig.  { 
705.*] 

9.  MnwioiPAL  Corporations  (|  705*)  — Use 
of  Streets— AtrT0M0BrLE&— Signals. 

Whether  a  signal  by  a  bom  warning  of 
the  approadi  of  an  automobile  in  a  dty  street 
is  essential  to  the  exercise  of  ordinary  care, 
must  l>e  determined  from  the  circumstances  of 
each  case. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  |  1515;  Dec.  Dig.  § 
706.*] 

10.  Municipal  Cobpobations  ({  706*)— Use 
of  Streets— Fbiohtenino  Horses  — Ques- 
tion FOB  JUBT. 

In  an  action  for  Injuries  claimed  to  have 
been  caused  by  negligence  in  frightening  a  horse 
with  an  automobile  in  a  street  evidence  held  to 
present  a  question  for  the  jury  whether  defend- 
ant, in  passing  the  horse  from  behind,  as  he  did, 
exercised  the  caution  an  ordinarily  prudent  man 
would  in  like  circumstances. 

(Ed.  Note.— For  other  cases,  see  Mui^eipal 
Corporations,  Cent  Dig.  |  1618;  Dec.  Dig.  | 
706.*] 

11.  Municipal  Corporations  (t  706*)— Use 

OF      STBEETS  —  FBlaUTENINO      HOBSES  —  IN- 
STRUCTIONS. 

To  come  up  behind  a  team  with  an  automo- 
bile moving  at  excessive  speed,  and  pass  within 
a  few  feet  of  it  without  any  warning,  may  be 
negligent  and  hence,  in  an  action  for  injuries 
diumed  to  have  been  caused  by  frightening  a 
horse  in  a  street  with  an  automobile,  exceptions 
are  not  well  taken  to  instructions  submitting  to 
the  jury  defendant's  negligence  in  passing  the 
horse  at  an  excessive  rate  of  speed,  coupledwith 
the  condition  that  the  automobile  was  moving  so 
close  as  to  frighten  the  horse  and  cause  it  to 
shy  onto  the  curbstone  and  run  away. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1518;  Dec.  Dig.  8 
706.*] 

12.  Municipal  Corporations  (t  706*)— Use 
OF    Streets  —  Fbiobteninq    Horses  —  In- 

STBDCTIONS. 

In  an  action  for  injuries  claimed  to  have 
been  caused  by  frightening  a  horse  in  a  street 
with  an  automobile,  there  was  no  error  in  an 
instruction  submitting  the  question  whether  de- 
fendant was  negligent  after  passing  the  horse 
from  behind,  in  turning  in  front  of  it  -so  close 
as  to  frighten  it  the  evidence  being  such  that 
the  jur^  might  have  found  that  the  automobile 
turned  in  front  of  the  horse  within  a  few  feet 
after  it  passed,  and  the  driver  having  testified 
that  had  he  been  warned  of  its  approach  he 
might  have  controlled  the  animal. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  |  1518;  Dec.  Dig.  § 
706.*] 

13.  MuNioiPAi.  Cobpobations  (|  706*)— Use 

OF  STBBETS— AuTOlfOBILES. 

The  omission  to  sound  the  signal  bom  or 
give  otber  warning,  together  with  the  nearness 
of  an  automobile  in  passing,  from  the  rear,  a 
horse  and  vehicle  in  the  street,  are  proper  to  be 
considered    in    connection    with    the    speed   at 


*rsr  oUicr  eases  ■••  same  topic  and  uetloa  NUUBBR  la  Dec  *  Am.  Dls«.  1907  to  data,  *  Reporter  Indezei 


Digitized  by  LjOOQIC 


238 


122  NORTHWESTERN  BEPORTBB. 


(lows 


which  the  car  is  moving  in  determining  negli- 
gence  in  its  operation. 

[Ed.  Note.— For  other  cases,  see  Monieipel 
Corporations.  Cent  Dig.  {  1515;  Dec  Dig.  { 
708.»] 

14.  MimiCIPAI.   CORPORATIONB    (I    706*)— USE 

or    Stbeets— Fbiobtenino    Houses— In- 

SIBVCnONS. 

In  an  action  for  injuries  claimed  to  have 
been  caused  by  frightening  a  horse  with  an  an- 
tomobile,  the  evidence  was  such  that  the  jury 
might  have  fonnd  that  after  the  car  passed  the 
driver  regained  his  balance  and  such  partial 
control  of  the  horse  as  to  direct  its  course  in  the 
street,  when  defendant,  hearing  its  approach, 
stopped  his  machine  some  30  feet  ahead,  and 
thereby  added  to  its  fright,  causing  it  to  run 
against  a  telegraph  post,  and  the  court  directed 
the  jury's  attention  to  this  evidence,  with  the 
statement  that  it  was  for  the  jury  to  say 
"whether  the  defendant  in  thus  stopping  his  car 
was  guilty  of  negligence."  Held  that,  inasmuch 
as  the  court  bad  correctly  defined  negligence  in 
another  instruction,  no  exception  could  be  taken 
to  this  as  not  indicating  the  care  defendant  was 
bound  to  exercise. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  }  1518;  Dec.  Dig.  { 
706.  •] 

15.  MCNIOIPAI,    CORPOBATIORS    (|    70S*)— USB 

or  Streets— Stoppirq  in  STitEin<. 

Ordinarily  a  person  may  stop,  at  any  point 
on  a  street  where  he  chooses,  provided  he  does 
not  unduly  obstruct  the  way ;  but,  in  an  emer- 
gency involving  the  safety  of  property  and  per- 
son, that  course  is  exacted  which  an  ordinary 
prudent  man  would  exercise  for  their  protec- 
tion. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  |  1611;  Dec.  Dig.  S 
703.*] 

16.  Municipal  Cobpobations  (§  705*)- Use 
OF  Stbeets— Atttomobii.es— Cake  Requibbo. 

Where  defendant,  sued  for  frii^htening  a 
horse  with  an  automobile,  had  passed  the  horse, 
and  was  aware  of  the  fright  caused  thereby,  and 
that  it  was  running  toward  the  receding  car 
with  the  driver  still  in  the  cart,  it  was  incum- 
bent on  him  to  exercise  care  commensurate  with 
the  situation  in  which  he  found  himself,  so  as 
not  to  interfere  with  the  driver's  efforts  to  re- 
gain control  and  save  the  horse  and  himself  from 
injury. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1516;  Dec  Dig.  { 
705.»] 

17.  MuHiciPAi,  CoRPOBATions  ({  706*)— Use 
OF  Stbeets— Fbightenino  Hobses  — Qces- 

TION  rOB  JUBT. 

In  an  action  for  injuries  claimed  to  have 
been  caused  by  frightening  a  horse  in  a  street 
with  an  automobile,  evidence  held  to  present  a 
question  for  the  jnry  whether  defendant,  after 
passing  and  frightening  the  horse,  exercised  due 
care  so  as  not  to  interfere  with  the  driver's  ef- 
forts to  regain  control,  so  as  to  save  the  horse 
and  himself  from  injury. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  f  1518;    Dec  Dig.  t 

18.  Municipal  Cobpobations  (I  706*)— Use 
or  Stbeets  —  Fbightenino  Bosses  —  1n- 
stbcctions. 

In  an  action  for  frightening  a  horse  with 
an  automobile  in  a  street,  an  instmction  exact- 
ing of  defendant  knowledge  that  a  horse  of  or- 
dinary disposition  would  become  frightened  at 
nn  automobile  passing,  under  the  circumstances 
disclosed  in  the  evidence,  was  more  favorable  to 
defendant  than  required,  as  all  that  was  neces- 


sary was  that  as  an  ordinarily  prudent  man  he 
should  have  known  if  such  were  the  facts. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1518;  Dec.  Dig.  S 
706.*] 

19.  Tbiai,  ({  143*)— Submission  or  Ibbues— 
CoNFiJcrTino  Testikort. 

An  issue  raised  by  the  testimony  of  two 
witnesses  was  properly  submitted  to  the  jury, 
though  their  testimony  was  not  in  harmony  with 
that  of  two  other  witnesses  in  the  case. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  I  342;   Dec.  Dig.  |  143.*] 

20.  MuNioiPAi,  Cobpobations  (5  703*)— Use 
or  Stbbet— Dbivino  neab  Cubbing. 

The  driver  of  a  well-broken  horse  which 
was  frightened  bv  a  passing  automobile  was  en- 
titled to  drive  it  anywhere  in  the  street  he 
might  choose,  and  it  was  not  negligence  to  drive 
close  to  the  curbing. 

[Ed.  Not<>.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  |  1509;  Dec  Dig.  { 
703.*] 

21.  MuNioiPAt  Cobpobations  (S  TOo*)— Use 
or  Stbeet— Case  Requibed. 

One  driving  in  the  street  is  not  bound  to 
keep  a  lookont  backwards,  and  is  entitled  to  rely 
on  the  exercise  of  ordinary  care  by  those  ap- 
proaching from  the  rear. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1515;  Dec.  Dig.  | 
705.*] 

22.  Municipal  Cobpobations  (J  705*)- Use 
OF  Stbeets— Assumption  of  Risks. 

Because  a  street  is  frequented  by  automo- 
biles, one  driving  thereon  does  not  assume  ail 
the  risk  of  having  his  horse  frightened  thereby, 
but  only  the  risk  incident  to  their  operation  in 
a  reasonably  careful  manner. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  i  1615;  Dec  Dig.  { 
705.*] 

23.  Municipal  Corporations  (5  705*)— Use 
of  Stbeets— Frightening  Horses. 

The  unlawful  speed  of  an  automobile  in 
passing  a  horse  in  the  street  from  the  rear  does 
not  alone  warrant  a  recovery  for  injuries  caus- 
ed by  its  taking  fright  and  running  away. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1616;  Dec  Dig.  { 
705.*] 

24.  Trial  (|  260*)— Requests— Instbuotions 
Alreadt  Given. 

No  error  can  be  predicated  on  the  refusal 
of  instructions  which  were  included  in  those  giv- 
en, so  t&t  as  they  contained  correct  statements 
of  the  law. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  i  651;   Dec  Dig.  i  260.*] 

Appeal  from  Superior  Court  of  Cedar  Rap- 
ids; J.  H.  Rothrock,  Judge. 

Action  for  damages  resulted  in  a  judgment 
against  the  defendant  and  from  It  he  ap- 
peals.   Affirmed. 

Jamison  &  Smyth,  for  appellant  S.  K. 
Tracy,  W.  B.  Steele,  and  Jno.  A.  Seed,  for 
appellee. 

LADD,  J.  One  Nelson  was  driving  plain- 
tifTs  horse,  hitched  to  a  Frater  cart,  in  an 
easterly  direction  on  the  south  side  of  First 
avenue.  The  Inside  wheel  was  one  or  two 
feet  from  the  curbing,  and  the  horse  was 
moving  at  the  speed  of  about  seven  miles  an 
hour.    When  halfway  between  Eleventh  and 


•For  other  esse*  •««  lame  topic  and  lectlon  NVllBBR  ta  Dee.  A  Am.  Digs.  1907  to  date,  4b  Reporter  Indexm 


Digitized  by 


Google 


lowi^ 


DBLFS  T.  DUX6HGB. 


Tn-elfth  streets,  the  defendant's  automobile, 
operated  by  himself  and  moving  in  the  same 
direction  at  the  speed  of  from  10  to  14  miles 
an  honr,  came  opposite  Nelson  without  warn- 
ing of  its  approacli.  The  estimated  distance 
of  Its  inside  wheel  from  the  outside  wheel 
of  the  cart  varied  from  2  to  10  feet,  and, 
when  some  little  distance  past  the  horse, 
some  of  the  witnesses  testified  that  the  au- 
tomobile turned  south  in  front  of  the  horse, 
while  one  says  it  moved  straight  forward. 
Neither  the  horse  nor  its  driver  was  aware  of 
the  approach  of  the  automobile  until  it  was 
opposite  the  latter,  when  the  horse  became 
frightened  and  turned  to  the  south,  drawing 
the  cart  wheel  on  the  curbing.  This  threw 
the  driver  out  of  balance  and  he  lost  partial 
control  of  the  horse.  It  ran  forward  until 
seeing  the  automobile,  which  had  been  stop- 
ped ahead  of  him,  when  it  swerved  to  the 
north  side  of  the  avenue,  running  against  a 
telephone  pole,  and  his  shoulder  was  broken. 
According  to  the  driver,  the  automobile  turn- 
ed to  the  south  In  front  of  the  horse  when 
about  10  feet  ahead,  and  stopped  when  80 
feet  from  It;  while  defendant  testified  that 
the  automobile  moved  straight  on  and  was 
250  feet  from  the  horse  when  it  stopped. 
There  was  also  a  conflict  In  the  testimony  as 
to  whether  the  driver  had  regained  control 
of  the  horse  when  the  automobile  stopped, 
and  whether  it  again  took  fright  at  the  ma- 
diinev  and  because  of  this  ran  into  the  tele- 
l)hone  pole.  Appellant  relies  on  80  points 
only  for  reversal,  but  these  are  condensed  in 
argument  Into  20  divisions.  It  would  bave 
been  helpful  had  the  process  of  elimination 
been  so  far  continued  as  to  leave  none  other 
than  the  propositions  in  dispute.  These  only 
aeed  be  considered.  Several  questions  were 
propounded  to  Nelson  concerning  the  charac- 
teristics and  habits  of  a  horse  to  which  ob- 
jections were  interposed  and  overruled.  As 
he  had  been  handling  horses  for  20  years  and 
bad  observed  their  habits  and  conduct,  es- 
pecially when  frightened,  he  was  rightly 
held  competent  to  testify  as  an  expert.  Such 
evidence  was  admissible.  HeinmiUer  v.  Win- 
ston Bros.,  181  Iowa,  82,  107  N.  W.  1102,  6 
L.  R.  A.  (N.  S.)  160,  117  Am.  St  Rep.  405; 
Uoreland  ▼.  Mitchell  Co.,  40  Iowa,  394.  But 
see  Kraus  v.  By.,  55  Iowa,  338,  7  N.  W.  598. 
The  defendant,  after  testifying  to  what  oc- 
curred, was  asked  whether  there  was  any- 
thing In  the  appearance  of  the  horse  or  the 
position  of  the  driver  to  indicate  that  the 
latter  might  lose  control  or  that  there  was 
danger  of  trouble.  This  clearly  called  for 
the  conclusion  of  the  witness,  and  the  objec- 
tion on  this  ground  was  rightly  sustained,  as 
vas  also  a  like  objection  to  the  Inquiry  as 
to  whether  be  could  have  gotten  farther  from 
the  cart  In  passing  without  getting  on  the 
street  car  track.  The  street  was  60  feet  wide 
between  curbings  and  paved  with  a  double 
street  car  track,  the  inside  rail  being  23  feet 
from  the  curbing.  As  the  width  of  the  auto- 
mobile was  shown,  the  inquiry  merely  called 


for  computation.  Besides,  as  the  trolley 
posts  were  in  the  center  of  the  street,  there 
was  no  apparent  reason  for  avoiding  the 
track. 

2.  Much  of  appellant's  argument  Is  on  the 
theory  that  no  duty  is  owing  the  driver  of 
a  team  by  the  operator  of  an  automobile 
about  to  pass  him,  save  as  prescribed  by  sec- 
tions 8  and  9  of  chapter  53,  p.  45,  of  the 
Acts  of  the  30th  General  Assembly  of  1904 
(sections  15711,  1571h,  Code  Supp.  1907).  The 
first  of  these  prohibits  a  speed  in  a  closely 
built  portion  of  a  city  of  more  than  a  mile  in 
six  minutes,  and  the  last  provides  that  "any 
person  operating  a  motor  vehicle  shall  at  re- 
quest, or  on  signal  by  putting  up  the  hand, 
from  a  person  driving  a  restive  horse,  or  oth- 
er draft  or  domestic  animal,  bring  such  mo- 
tor car  immediately  to  a  stop,  and,  if  travel- 
ing In  the  opposite  direction,  remain  station- 
ary so  long  as  may  be  reasonable  to  allow 
such  horse  or  animals  to  pass,  and  if  travel- 
ing in  the  same  direction,  use  reasonable  cau- 
tion in  passing  such  horse  or  animal."  This 
does  no  more  than  define  the  duty  of  the 
operator  of  an  automobile  upon  request  or 
signal.  It  in  no  way  relieves  bim  fr^m  the 
obligation  resting  upon  all  travelers  on  the 
highway  to  exercise  ordinary  care  for  the 
safety  of  others.  It  in  no  way  relieves  him 
from  the  duty  of  exercising  reasonable  cau- 
tion in  passing  a  horse  or  other  animal,  in 
the  absence  of  any  request  or  signal.  One 
may  travel  in  a  motor  vehicle  on  the  streets, 
but,  in  doing  so,  the  care  exacted  necessarily 
depends  somewuat  on  the  rate  of  speed,  size, 
and  appearance,  manner  of  movement,  noise, 
and  the  like  of  such  vehicle,  as  well  as  the 
means  of  locomotion  of  others  on  the  high- 
way. House  V.  Cramer,  134  Iowa,  374,  112 
N.  W.  8,  10  U  R.  A.  (N.  S.)  655.  As  the  part 
of  the  city  in  question  was  closely  built,  de- 
fendant was  negligent  in  moving  the  automo- 
bile at  a  higher  speed  than  10  miles  an  hour, 
as  this  was  in  violation  of  the  statute  quot- 
ed. The  evidence  tended  to  show  that  a 
horse  though  well  broken  is  likely  to  be- 
come frightened  by  an  automobile  or  other 
vehicle  coming  from  the  rear  in  close  prox- 
imity to  it  in  passing,  unless  some  warning 
is  given.  For  'this  reason,  these  machines 
are  supplied  with  a  signal  horn  with  which 
to  sound  a  warning  of  their  approach. 
Whether  such  signal  is  essential  in  the  exer- 
cise of  ordinary  care  must  be  determined 
from  'the  circumstances  of  each  case.  Pos- 
sibly had  the  motor  vehicle  passed  on  the 
other  side  of  the  street,  there  might  have 
been  no  occasion  for  giving  warning  of  Its 
approach,  for  it  would  have  been  more  like- 
ly to  have  been  noticed  and  the  horse  less 
likely  to  have  been  frightened.  But  there 
was  evidence  tending  to  show  that  it  was 
approaching  from  directly  behind  the  cart, 
that  it  turned  out  barely  enough  to  avoid 
colliding  with  it,  and  was  within  a  few  feet 
from  the  horse  when  passing,  and  tnrned  in 
when  no  more  than  10  feet  beyond.    No  ar- 


Digitized  by  VjOOQ  l€ 


240 


122  NOHTHWESTBRN  BBPOBTBa 


(Iowa 


gnment  Is  required  to  demonstrate  that  an 
automobile,  making  little  noise  In  moving  as 
In  this  Instance,  and  passing  as  the  evidence 
tended  to  show  this  did,  would  be  likely  to 
frighten  an  ordinarily  well-broken  horse; 
and  whether  the  defendant,  In  operating  It 
as  he  did  In  passing,  exercised  the  caution 
an  ordinarily  prudent  man  would  In  like  dr- 
cumstances,  was  for  the  Jury  to  determine. 

S.  Several  Instructions  are  criticised  for 
submitting  to  the  Jury  whether  the  defendant 
was  negligent  in  passing  the  horse  at  an  ex- 
cessive rate  of  speed.  This  was  coupled  with 
the  condition  that  the  automobile  was  moved 
so  close  to  the  horse  as  to  frighten  and  cause 
it  to  shy  onto  the  curbstone  and  run  away. 
Enough  has  been  said  to  indicate  that,  In 
our  opinion,  to  come  up  behind  a  team  with 
an  automobile  moving  at  excessive  speed, 
and  pass  within  a  few  feet  of  It  without  any 
warning,  may  be  negligent,  and  the  excep- 
tions are  not  well  taken.  In  other  Instruc- 
tions, the  court  added  the  circumstance  of 
turning  in  front  of  the  horse  so  close  as  to 
cause  him  to  become  frightened.  The  evi- 
dence was  such  that  the  Jury  might  have 
found  that  the  automobile  turned  In  front 
of  the' horse  within  a  few  feet  after  it  had 
been  passed,  and  that  this  might  have  In- 
creased the  fright  of  the  animal,  already 
turned  toward  or  on  the  curbing.  The  driv- 
er had  testified  that  had  he  been  warned  of 
the  approach  of  the  car  he  might  have  con- 
trolled the  animal,  and  the  circumstances  of 
the  omission  to  sound  the  signal  horn  or  give 
other  warning,  together  with  the  nearness  of 
the  aatomobile  in  passing,  were  properly  to 
be  considered,  in  connection  with  the  speed 
at  which  the  automobile  was  moving.  In  de- 
termining whether  defendant  was  negligent 
in  Its  operation. 

4.  The  evidence  was  such  that  the  Jury 
might  have  found  that  after  the  automobile 
had  passed  the  driver  regained  his  balance 
and  such  partial  control  of  the  horse  as  to 
direct  Its  course  in  the  street,  when  the  de- 
fendant, hearing  its  approach,  stopped  his 
machine  some  30  feet  ahead  and  thereby 
added  to  the  frlgbt  of  the  horse,  causing  it 
to  turn  to  the  left  and  run  against  the  tele- 
graph pole.  The  attention  of  the  Jury  was 
directed  to  this  evidence  In  connection  with 
the  circumstances,  shown  with  the  state- 
ment, that  it  was  for  the  jury  to  say  "wheth- 
er the  defendant  in  thus  stopping  his  car 
was  guilty  of  negligence."  In  another  in- 
struction, the  court  had  correctly  defined 
negligence,  so  that  no  exception  can  well  be 
taken  to  this  In  not  Indicating  the  care  de- 
fendant was  bound  to  exercise.  In  under- 
taking to  stop,  he  was  aware  that  the  horse 
had  become  frightened  by  the  automobile, 
and  had  not  recovered  therefrom,  and  it 
was  for  the  Jury  to  say  whether,  as  an  ordi- 
narily prudent  man,  he  ought  not  to  have 
known  that  in  bringing  the  vehicle,  which 
had  scared  the  horse,  to  a  stop  but  a  short 


distance  In  front  of  the  frenzied  animal  ap- 
proaching directly  from  behind,  he  would 
Increase  its  fright  and  render  it  more  diffi- 
cult of  control;  if  so,  in  what  he  did  tibe 
Jury  might  have  found  him  to  have  been 
negligent.  Had  the  horse  been  given  the 
street,  it  would  seem  that  the  driver  might 
have  regained  control,  at  least  the  jary 
might  so  have  found.  The  natural  effect  of 
stopping  the  thing  which  tiad  frightened  it 
but  a  short  distance  away  was  to  fumlsli 
an  obstacle  to  hla  progress  which  it  natural- 
ly would  attempt  to  avoid,  and  this  might 
have  been  found  to  have  turned  the  horse 
from  its  course,  and  therefore  to  have  con- 
tributed to  its  injury.  Ordinarily  a  person 
may  stop  at  any  point  on  the  street  where  he 
chooses,  provided  he  does  not  unduly  ob- 
struct the  way;  but  in  an  emergency  like 
this  the  safety  of  property  and  person  is 
Involved,  and  that  course  Is  exacted  which 
an  ordinarily  prudent  man  would  exercise 
for  their  protection.  Having  passed  the 
horse  Immediately  before,  and  being  aware 
of  the  fright  caused  thereby,  and  that  the 
horse  was  then  running  toward  the  receding 
automobile  with  the  driver  still  in  the  cart, 
it  was  incumbent  on  blm  to  exercise  care 
commensurate  with  the  situation  in  whldi 
he  found  himself,  to  the  end  that  no  act  of 
bis  should  interfere  with  the  efforts  to  re- 
gain control  and  save  the  horse  and  driver 
from  Injury.  Whether  he  so  did  was  fairly 
an  Issue  for  the  Jury  to  decide. 

6.  C!ompIaint  Is  made  of  Instruction  No. 
10,  tn  that  it  exacted  knowledge  of  the  de- 
fendant that  a  horse  of  ordinary  disposition 
would  become  frightened  at  an  automobile 
passing  -under  the  circumstances  disclosed  in 
the  evidence.  It  was  more  favorable  than 
required,  as  all  that  was  necessary  was  that 
defendant,  as  an  ordinarily  prudent  man, 
should  have  known  if  such  were  the  fact. 
Instruction  No.  9  is  based  on  the  testimony  of 
two  witnesses,  and,  though  what  they  testi- 
fied to  was  not  in  harmony  with  that  of  the 
driver  or  defendant,  it  was  in  the  case,  and 
the  issue  raised  thereby  properly  submitted 
to  the  Jury.  Other  exceptions  to  Instructions 
are  disposed  of  by  what  has  been  said. 

6.  Appellant  Insists  that  driving  the  cart 
so  close  to  the  curbing  was  in  Itself  negli- 
gent We  do  not  think  so.  The  horse  was 
well  broken,  and  the  driver  had  the  right 
to  drive  it  anywhere  In  the  street  he  might 
choose.  Nor  was  he  bound  to  keep  a  lookout 
backwards.  He  had  the  right  to  rely  upon 
those  approaching  from  the  rear  to  do  so 
In  the  exercise  of  ordinary  care.  It  also  ap- 
pears that  First  avenue  was  frequented  by 
automobiles,  and  lb  Is  urged  that  be  driver 
assumed  all  the  risk  of  having  bis  horse 
frightened  when  driving  on  that  street  He 
did  so .  assume  the  risk  incident  to  their 
operation  In  a  reasonably  careful  manner, 
but  no  more.  Otherwise  those  manipulating 
these  machines  might  approi^iate  any  street 


Digitized  by 


Google 


loira) 


STATE  V.  JONES. 


241 


to  tbelr  own  use,  for.  If  other  travelers  must 
assume  the  risk,  they  could  only  go  thereon 
It  their  peril. 

The  fourteenth  instruction  is  purely  oega- 
tlre,  and,  even  though  not  comprehensive, 
It  was  correct  as  far  as  it  went. 

Instruction  Na  16  is  not  inconsistent  with 
previous  instructions,  but  rather  in  explana- 
tion that  the  unlawful  speed  of  the  car  alono 
did  not  warrant  a  verdict  for  the  plaintiff. 
Instructions  requesting  this  were  included  in 
those  given.  In  so  far  as  containing  correct 
statements  of  the  law.  The  ruling  on  the 
motion  to  strike  portions  of  the  petition 
was  without  prejudice.  The  evidence  was 
sufficient  to  carry  the  case  to  the  Jury. 
The  judgment  is  affirmed. 


STATE  V.  JONES  et  al. 

(Supreme  Court  of  Iowa.    July  2, 1909.) 

1  Public  Lands  (|  58*)— Swamp  Lands— Ti- 

TLK    IN    ObNERAI.    GOVERNMENT    TiLI,    ISSU- 
ANCE OF  Patent. 

Until  a  patent  is  isaued  from  the  United 
States  to  the  state  for  swamp  land,  the  legal  ti- 
tle remains  in   the  general  gOTemment. 

[Ed.  Note. — For  other  cases,  see  Public  Lands, 
Cent  Dig.  }  181 ;   Dec.  Dig.  {  5&»] 

2.  Watebb  and   Water  Coubses   ({  108*)  — 

••xonnavigable  lake." 

A  lake  within  the  description  of  bodies  of 
water  to  be  meandered  nnder  the  rules  of  the 
Interior  Department,  and  decided  by  the  Sec- 
retary, on  an  application  for  a  survey  of  its  bed, 
not  to  be  public  lands  and  to  have  been  properly 
meandered,  should  be  regarded  as  a  nonnaviga- 
ble  lake. 

[Ed.  Note.— For  other  cases,  see  Waters  and 
Water  Conrses,  Dec.  Dig.  g  108.*] 

8.  Watebs  and  Wateb  Coubses  (S  108*)— 

"XONNAVIOABLK  LaKE." 

To  constitute  a  nonnavigable  lake,  no  par- 
ticular depth  is  essential,  nor  is  it  necessary 
that  the  water  cover  the  entire  bed  at  all  sea- 
sons, and  it  is  enough  if  the  bod^  of  the  water 
has  well-defined  banks,  filled  during  portions  of 
the  year. 

WEd.  Note. — For  other  cases,  see  Waters  and 
ater  Courses,  Dec.  Dig.  |  10&*] 

4.  Watebs  and  Wateb  Codbses  (§   114*)— 
Dbainaoe  or  Lake. 

Unless  the  state  has  title  to  or  control  of 
the  bed  of  a  lake  or  the  water  covering  it,  it 
cannot  enjoin  its  drainage  by  a  defendant  hav- 
ing no  tide  thereto. 

[Ed.  Note.— For  other  cases,  see  Waters  and 
Water  Courses,  Dec.  Dig.  |  114.*] 

5.  BOUNDABIEB     (8     18*)— MBANDEBED    liAKK— 

Extent  of  Rifabian  Rights. 

^e  owner  of  land  bordering  on  a  nonnavi- 
gable lake  in  this  state  meandered  by  govern- 
ment surveyors  has  title  to  the  water's  edge  and 
not  to  the  center. 

[Ed.  Note.— For  other  cases,  see  Poundaries. 
Cent.  Dig.  i«  121,  122 ;  Dec.  Dig.  §  18.*] 

6.  WoBDS  AND  Pitbases— "Lands." 

The  word  "lands"  includes  the  beds  of  non- 
navigable  lakes  and  streams,  and  lands  are  none 
the  leas  land  for  being  covered  with  water. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  vol.  6,  pp.  3975-3984 :  vol.  8,  pp. 
T70O-77O1.]  .  °.  Pi- 


7.  Navigable  Watzbs  ({  4*)— Lands  tjndkb 
Wateb— OwNEBSHTP  and  Contbol. 

Navigable  waters  in  the  territories  ate  held 
as  highways  of  travel  and  commerce  by  the  gov- 
ernment, bnt  with  the  soil  beneath  them  they 
pass  to  the  new  states  on  their  admission  to  the 
UnioA  in  virtue  of  their  sovereignty,  subject  to 
the  r^pilation  of  commerce  by  Congress. 

[SJd.  Note.— For  other  cases,  see  Navigable 
Waters,  Cent  Dig.  |  1 ;  Dec.  Dig.  i  4.*] 

8.  Watebs  and  Wateb  Cotjbses  (|  114*)— 
Dbainagk  of  Lake— Right  of  State. 

The  federal  government,  in  reserving  the 
ntuneroas  small  lakes  in  the  state  from  sale, 
intended  them  for  public  use,  and,  having  treat- 
ed them  as  under  the  control  and  sovereignty  of 
the  state,  the  state  has  such  an  interest  in  such 
a  lake  as  will  support  an  action  to  restrain  per- 
sons without  title  from  draining  the  waters 
therefrom  or  otherwise  exercising  proprietary 
control  over  it 

[Eld.  Note.— For  other  cases,  see  Waters  and 

Water  Courses,  Dec.  Dig.  {  114.*] 

Appeal  from  District  Court,  Greene  Coun- 
ty; Z.  A.  Church,  Judge. 

Action  to  enjoin  the  defendants  from  drain- 
ing water  from  Goose  Lake  resulted  in  a  de- 
cree as  prayed.  The  defendants  appeal.  Af- 
firmed. 

B.  B.  Evans  and  0.  L.  Nourse,  for  appel- 
lants. H.  W.  Byers,  Atty.  Gen.,  and  George 
Cosson,  Asst  Atty.  Gen.,  for  the  State. 

LADD,  J.  Goose  Lake  is  tliat  portion  of 
sections  1  and  12  in  township  84,  and  of  sec- 
tion 36  in  township  85  N.,  of  range  No.  31 
W.  of  the  fifth  P.  M.,  and  of  sections  6  and 
7  In  township  84  of  range  80  W.  of  the  fifth 
P.  M.,  meandered  by  the  government  survey 
of  1863.  It  is  several  hundred  acres  in  ex- 
tent, and,  as  the  evidence  shows,  has  a  well- 
defined  bank  or  rim.  The  water  is  and  al- 
ways has  been  shallow,  varying  in  depth 
with  the  falling  of  rain  and  the  melting  of 
snows.  It  is  surrounded  by  high  lands  which 
drain  into  it,  and  has  no  outlet  save  a  swale . 
through  which  the  water  flows  out  when  the 
t>ed  fills.  Much  of  the  time  a  large  portion 
of  the  bed  is  overgrown  with  rushes,  water 
lilies,  and  other  vegetation,  so  that  not  more 
than  one-fifth  of  the  water  in  it  is  clear.  In 
1907,  when  the  surveyor  employed  by  defend- 
ants surveyed  it,  he  found  much  of  the  bed  so 
dry  that  he  excavated  at  several  places,  find- 
ing the  vegetable  mould  on  tlie  bottom  from 
20  to  30  inches  deep,  underlaid  with  1  to  G 
inches  of  sand,  with  clay  below.  The  sur- 
veyor employed  by  the  plaintiff  thought  much 
of  the  bed  covered  with  water  when  he  ex- 
amined It  during  the  same  year.  The  evi- 
dence indicates  that  during  tne  dry  portions 
of  the  season  the  water  in  the  lake  is  from 
18  inches  to  6  or  6  feet  deep,  and  grass  cov- 
»s  much  of  the  bed,  and  that  when  the  bed 
fills  so  as  to  overflow  it  is  from  3  or  4  to  11 
to  16  feet  deep.  Boats  and  skiffs  have  been 
kept  on  the  lake  for  hunting  and  fishing  pur- 
poses since  the  early  days  of  settlement  It 
cannot  be  said  with  any  degree  of  accuracy 
from  the  photographs  from  how  much  of  the 


«»or  other  cues  SM  same  topl«  and  SMtlon  NUMBER  In  Dec.  *  Am.  Dl»i.  1S07  to  <Ut»,  *  Reporter  IndexM 
122N,W.— 16 


Digitized  by  LjOOQ  l€ 


242 


122  NORTHWESTERN  REPORTER. 


Qawti 


bed  the  water  recedes,  bat  the  condltloii  of 
vegetation  on  tbe  bottom  indicates  much  of 
it  becomes  dry  during  the  dry  season. 

The  Marshall  Dental  Manafacturlng  Com- 
pany obtained  a  conveyance  of  the  lake  bed 
in  controversy  through  several  mesne  convey- 
ances from  the  American  Immigrant  Com- 
pany, to  whom  Greene  county  had  conveyed 
all  the  swamp  lands  within  its  borders,  but 
no  patent  has  ever  issued  from  the  United 
States  to  the  state  therefor,  and  for  this  rea- 
son the  legal  title  thereto,  if  a  part  of  the 
swamp  lands,  remains  in  the  general  govern- 
ment. Toung  V.  Charnqulst,  114  Iowa,  110, 
86  N.  W.  205;  Ogden  v.  Buckley,  116  Iowa, 
352,  89  N.  W.  1115.  An  application  was 
made  by  this  company  to  the  General  Land 
Office  In  1903  for  the  survey  of  the  lake  bed, 
and  the  Secretary  of  the  Interior,  In  a  care- 
ful opinion  reviewing  the  evidence,  including 
the  field  notes  of  the  government  survey, 
found  that  insufficient  proof  has  been  sub- 
mitted to  impeach  the  correctness  of  the  sur- 
vey by  which  Goose  Lake  was  meandered, 
"thereby  determining,  so  far  as  lies  in  the 
power  of  the  department,  that  the  lands  in 
controversy  are  not  public  lands."  This  was 
put  upon  the  ground  that  "the  department 
has  power  to  correct  surveys  upon  a  proper 
showing,  but,  as  has  been  frequently  said, 
the  proper  rule  is  to  refuse  to  disturb  the 
public  surveys  except  on  tbe  clearest  proof 
of  accident,  fraud,  or  mistake,  where  a  re- 
survey  may  affect  the  rights  or  claims  of  any 
one  resting  upon  the  original  survey."  The 
Secretary  pointed  out  that,  inasmuch  as  the 
department  declined  to  do  anything,  a  rem- 
edy in  the  courts  might  be  open  to  the  appli- 
cant under  the  doctrine  of  Railroad  Co.  v. 
Smith,  9  Wall.  95,  19  L.  Ed.  599,  as  construed 
in  French  v.  Fyan,  93  U.  S.  169,  23  L.  Ed. 
812,  and  observed  that  "the  title  to  the  beds 
of  all  lakes  that  were  properly  meandered 
vest  in  the  state  by  virtue  of  its  sovereignty, 
and  no  reason  can  be  perceived  why  the  state 
cannot  assume  control  of  this  land  and  re- 
claim it  by  drainage  or  make  any  other  dis- 
position It  may  see  proper,  in  view  of  this 
decision  holding  that  the  lake  bed  is  not 
public  land  left  unsurveyed."  In  view  of 
this  decision  by  the  department  of  the  gov- 
ernment empowered  to  pass  upon  the  ques- 
tion, as  has  been  held  in  numerous  cases,  we 
are  not  prepared  to  say  that  this  lake  bed 
passed  under  the  terms  of  what  is  known  as 
the  "Swamp  Act"  of  Congress  (Act  Sept  28, 
1850,  c.  84,  9  Stat  519).  One  of  the  rules 
promulgated  by  the  department  for  the  guid- 
ance of  surveyors  is  the  following:  "Yon  are 
also  to  meander,  in  the  manner  aforesaid,  all 
lakes  and  deep  ponds  of  the  area  of  twenty- 
five  acres  and  upwards;  also  navigable  bay- 
ous; shallow  ponds  readily  drained  or  likely 
to  dry  are  not  to  be  a  meander."  Surely  this 
lake  comes  within  the  description  of  bodies 
of  water  to  be  meandered,  and,  in  view  of 
the  decision  of  the  Secretary  of  the  Interior, 
it  should  be  regarded  a  nonnavlgable  lake. 


To  oonstitate  such  a  lake,  no  particular  de^th 
of  water  is  essential,  nor  is  it  necessary  that 
the  water  cover  the  entire  bed  at  all  seasons 
of  the  year.  It  is  at  least  enough  if  tbe 
body  of  water  has  well-defined  banks  which 
are  filled  during  portions  of  the  year.  It  is 
apparent  that  the  company  has  no  legal  title, 
although  it  was  proceeding  at  the  time  tbe 
injimction  was  sued  out  to  drain  tbe  waters 
from  this  lake  by  the  excavation  of  ditches 
and  the  laying  of  tll&  The  mere  fact  how- 
ever, that  it  had  no  title,  will  not  alone  Jus- 
tify restraining  defendants  from  making  this  ' 
improvement  Unless  the  state  has  title  to 
or  control  over  the  bed  of  the  lake  or  the  wa- 
ter covering  it,  it  may  not  interfere.  The 
law  is  settled  in  this  state  that  the  owner  of 
land  bordering  on  a  nonnavlgable  body  of 
water  meandered  by  government  surveyors 
has  title  to  the  water's  edge,  and  not  to  the 
center  of  the  lake,  as  is  held  in  some  states. 
Wright  V.  Council  Bluffs,  130  Iowa,  274,  104 
N.  W.  492,  114  Am.  St  Rep.  412;  State  t. 
Thompson,  134  Iowa,  25,  111  N.  W.  328.  And 
the  Supreme  Court  of  the  United  States  has 
]aid  down  the  rule  that  this  question  is  pe- 
culiarly for  tlie  decision  of  tbe  respective 
states.  Hardin  v.  Jordan,  140  U.  S.  371,  11 
Sup.  Ct  808,  35  L.  Ed.  428.  In  many  states 
the  riparian  owner  Is  held  to  take  title  in  the 
bed  of  the  lake  to  its  center,  and  such  ap- 
pears to  have  been  the  rule  at  common  law. 
See  Hardin  v.  Jordan,  supra ;  Brlstow  v.  Oor- 
mican,  L.  R.  8  App.  Cas.  641 ;  Cobb  v.  Daven- 
port 32  N.  J.  Law,  369 ;  Shell  v.  Matteson.  81 
Minn.  38,  83  N.  W.  491;  Clute  v.  Fisher,  65 
Mich.  48,  31  N.  W.  614 ;  Hodges  v.  Williams, 
95  N.  C.  831,  59  Am.  Rep.  242;  Webster  v. 
Harris,  111  Tenn.  668,  69  S.  W.  782,  59  L.  R. 
A.  324 ;  Poynter  v.  Chlpman,  8  Utah,  442,  32 
Pac.  690. 

The  rule  in  tills  state,  as  will  appear  from 
the  decisions,  is  well  supported  by  authority, 
and  the  Inquiry  arises.  What  becomes  of  the 
title  to  the  bed  of  the  lake  when  the  riparian 
owner  takes  to  the  water's  edge  only?  Is  it 
retained  by  tbe  United  States,  or  does  It 
pass  to  the  state  in  wtiich  the  body  of  water 
is  located?  The  question  has  been  raised  In 
this  court  several  times,  but  never  determin- 
ed. In  Rood  V.  Wallace,  109  Iowa,  6,  79  N. 
W.  449,  a  readiness  to  assume  title  to  be  in 
the  state  was  expressed,  and  this  was  assum- 
ed in  State  v.  Thompson,  134  Iowa,  25,  111 
N.  W.  328.  In  Carr  v.  Moore,  119  Iowa,  162, 
93  N.  W.  62,  97  Am.  St  Rep.  292,  in  stating 
that  riparian  owners  take  to  high-water 
mark  only,  tbe  court  added,  "tbe  title  being 
in  the  state."  But  this  was  mere  dictum, 
and  the  suggestion  in  State  v.  Thompson  that 
"the  state  became  the  owner  of  all  lands 
forming  the  l>ed  of  the  inland  lakes  within 
its  borders  which  had  been  meandered  by 
government  survey  and  excluded  from  pub- 
lic lands  as  was  the  lake  in  question"  was  Of 
a  proposition  not  controverted,  and  not  as  the 
finding  of  the  court.  If  title  Is  within  the 
state,  when  and  how  was  it  acquired?    Un- 


Digitized  by 


Google 


Iowa) 


STATE  V.  JONBa 


243- 


der  the  treaty  of  1S03  (Act  April  80,  1803. 
8  Stat  200),  with  the  French  Republic. 
throDgh  which  the  Louisiana  territory,  out 
of  which  this  state  was  carved,  was  acquired, 
all  vacant  lands,  not  privately  owned,  were 
expressly  ceded  to  the  United  States.  These 
had  been  obtained  by  France  from  Spain  un- 
der treaty  of  three  years  previous.  The  act 
of  Ck>ngreas  approved  March  3,  184S,  for  the 
admission  of  Iowa  as  a  state,  provided  that 
"It  shall  never  Interfere  with  the  primary 
disposal  of  the  public  lands  lying  within  its 
borders."  Act  March  3,  1843,  c.  48,  |  7,  5 
Stat  743.  And  this  condition  was  accepted 
by  the  state  in  an  act  of  the  General  Assem- 
bly dated  January  15,  1849,  to  the  effect  that 
it  would  not  "interfere  with  the  primary  dis- 
posal of  the  soil  within  the  same  by  the  Unit- 
ed States  nor  with  any  regulations  Congress 
may  find  necessary  for  securing  the  title  in 
such  soil  to  bona  fide  purchasers  thereof." 
Laws  1848-49.  p.  121,  c.  91.  The  title  to  said 
lands  In  the  United  States  became  perfect 
and  complete  as  to  any  others  of  the  public 
domain.    1  Kent  Com.  257. 

As  remarked  in  Irvine  t.  Marshall.  20 
How.  558,  15  L.  Ed.  994:  "It  cannot  be  de- 
nied that  all  the  lands  In  the  territories,  not 
appropriated  by  competent  authority  before 
they  were  acquired,  are  in  the  first  Instance 
the  exclusive  property  of  the  United  States, 
to  be  disposed  of  to  such  persons,  at  such 
times,  and  in  such  modes  and  by  such  titles 
as  the  government  may  deem  most  advanta- 
geous to  the  public  or  in  other  respects  most 
politic"  And  the  word  "lands"  includes  the 
beds  of  nonnavlgable  lakes  and  streams. 
"Lands  are  not  the  less  land  for  being  cover- 
ed with  water."  Queen  v.  Leeds  &  L.  Canal 
Co.,  7  Ad.  &  Bl.  671,  685;  Illinois  Cen.  Ry. 
Co.  v.  Chicago,  176  U.  S.  646,  20  Sup.  Ct  509, 
44  Ii.  Ed.  622;  Hardin  v.  Jordan,  140  U.  S. 
371,  11  Sup.  Ct  808,  35  L.  Ed.  428. 

Prior  to  the  admission  of  Iowa  as  a  state 
the  title  to  this  lake  bed  was  in  the  United 
States,  and  it  was  not  thereby  divested.  Nav- 
igable waters  in  the  territories  are  held  as 
highways  of  travel  and  commerce  by  the  gov- 
ernment, but  with  the  soil  beneath  them  pass 
to  the  new  states  upon  their  admission  to  the 
Union  In  virtue  of  their  sovereignty,  subject 
to  the  regulation  of  commerce  by  Congress. 
Barney  v.  Keokuk,  04  U.  S.  324,  24  L.  Ed. 
224. 

In  niinois  C.  R.  Co.  ▼.  Illinois,  146  U.  S. 
387,  425, 13  Sup.  Ct  110,  36  L.  Ed.  1018,  1036, 
the  court  speaking  through  Mr.  Justice  Field, 
said:  "It  is  the  settled  law  of  this  country 
that  the  ownership  of,  and  dominion  and 
sovereignty  over,  lands  covered  by  tide  wa- 
ters, within  the  limits  of  the  several  states, 
t>elong  to  the  respective  states  within  which 
they  are  found,  with  the  consequent  right  to 
use  or  dispose  of  any  portion  thereof  when 
that  can  be  done  without  substantial  Impair- 
ment of  the  interest  of  the  public  In  the  wa- 
ters, and  subject  always  to  the  paramount 
right  of  Congress  to  control  their  navigation 


so  far  as  may  be  necessary  for  the  regula- 
tion of  commerce  with  foreign  nations  and 
among  the  states.  This  doctrine  has  been 
often  announced  by  this  court,  and  is  not 
questioued  by  counsel  of  any  of  the  parties. 
Pollard  V.  Hagan,  8  How.  212,  11  U  Ed. 
665;  Weber  v.  State  Harbor  Com'rs,  18  Wall. 
57,  21  L.  Ed.  70a  The  same  doctrine  is  in 
this  country  held  to  be  applicable  to  lands 
covered  by  fresh  water  in  the  Great  Lakes, 
over  which  is  conducted  an  extended  com- 
merce with  different  states  and  foreign  na- 
tions. These  lakes  irassess  all  the  general 
characteristics  of  op«i  seas,  except  In  the 
freshness  of  their  waters,  and  In  the  ab- 
sence of  the  ebb  and  flow  of  the  tide.  In 
other  respects  they  are  inland  seas,  and 
there  is  no  reason  or  principle  for  the  asser- 
tion of  dominion  and  sovereignty  over  and 
ownership  by  the  state  of  lands  covered  by 
tide  waters  that  Is  not  equally  applicable  to 
its  ownership  of  and  dominion  and  sovereign- 
ty over  lands  covered  by  the  fresh  waters 
of  these  lakes."  Manifestly  nonnavlgable  wa- 
ters are  not  within  this  doctrine,  and  upon 
what  theory  it  may  be  said  that  title  to  the 
beds  of  nonnavlgable  lakes  pass  from  the  gov- 
ernment to  the  state  upon  its  admission  to  the 
Union,  courts  so  holding  have  not  taken  the 
trouble  to  explain. 

The  whole  subject  is  exhaustively  exam- 
ined by  Mr.  Justice  White  In  the  dissenting 
opinion  filed  In  Kean  v.  Calupiet  Canal  A 
Imp.  Co.,  190  U.  S.  452,  23  Sup.  Ot.  651,  47 
L.  Ed.  1134.  See,  also,  that  In  Hardin  t. 
Sfaedd,  190  U.  S.  508,  23  Sup.  Ct  685,  47  L. 
Ed.  1156.  Nothing  In  the  majority  opinions 
In  these  decisions  conflicts  with  the  view  that 
title  remains  in  the  government,  but  these 
proceed  apparently  on  the  theory  that  the 
matter  is  purely  one  to  be  determined  by  lo- 
cal rules  of  conveyancing.  In  the  last  case, 
the  court,  speaking  through  Mr.  Justice 
Holmes,  said:  "When  land  is  conveyed  by 
the  United  States  bounded  on  a  nonnavlg- 
able lake  belonging  to  it,  the  grounds  for 
the  decision  must  be  quite  different  from 
the  considerations  affecting  a  conveyance  of 
land  bounded  on  navigable  water.  In  the  lat- 
ter case,  the  land  under  the  water  does  not 
belong  to  the  United  States,  but  has  passed  to 
the  state  by  Its  admission  to  the  Union. 
Nevertheless,  it  has  become  established  al- 
most without  argument  that  in  the  former 
case,  as  In  the  latter,  the  effect  of  the  grant 
on  the  title  to  adjoining  submerged  land  will 
be  determined  by  the  law  of  the  state  where 
the  land  lies.  In  the  case  of  land  bounded 
on  a  nonnavlgable  lake,  the  United  States  as- 
sumes the  position  of  a  private  owner  sub- 
ject to  the  general  law  of  the  state,  so  far 
as  its  conveyances  are  concerned.  When  land 
under  navigable  water  passes  to  the  riparian 
proprietor  along  with  the  grant  of  the  shore 
by  the  United  States,  it  does  not  pass  by  force 
of  the  grant  alone,  because  the  United  States 
does  not  own  it  but  it  passes  by  force  of  the 
declaration  of  the  state,  which  does  own  U, 


Digitized  by 


L-oogle 


244 


122  NORTHWESTERN  REPDHTER. 


(lOWE 


that  It  Is  attached  to  tbe  shore.  The  role  as 
to  conveyances  bounded  on  nonnavlsalile 
lakes  does  not  mean  that  the  land  under  such 
water  also  passed  to  the  state  .on  Its  admis- 
sion or  otherwise,  apart  from  the  swamp  land 
act,  but  is  simply  a  convenient,  possibly  the 
most  convenient,  way  of  determining  the  ef- 
fect of  a  grant.  We  are  particular  in  calling 
attention  to  this  difference,  because  we  fear 
that  there  has  been  some  misapprehension 
With  regard  to  the  point"  There  seems  no 
ground  for  saying  that  the  state  acquired 
title  to  the  nonnarlgable  lakes  upon  admis- 
sion of  the  state  to  the  Union.  But  as  seen  in 
the  matters  of  conveyancing,  the  government, 
with  respect  to  lands  bounded  on  them,  as- 
sumes the  position  of  a  private  owner.  Rec- 
ognizing the  public  utility  of  such  waters  for 
the  purposes  of  fishing,  boating,  hunting,  and 
the  like,  uplands  have  not  been  surveyed, 
platted,  or  sold  by  the  government  beyond  the 
high-water  mark.  Tbe  waters  and  the  soil 
beneath  have  been  withheld  from  private  ap- 
propriation by  tbe  government  for  tbe  benefit 
of  all  the  people.  And,  since  the  earliest 
settlements,  the  people  have  contlnned  un- 
molested in  the  enjoyment  of  the  benefaction. 
The  policy  of  the  state  in  stocking  these  small 
bodies  of  water  with  game  fish,  and  their 
protection  by  law,  has  obtained  for  many 
years.  These  lakes  afford  means  of  recrea- 
tion. They  supply  food  of  inestimable  value. 
The  conclusion  Is  unavoidable  that  the  gov- 
ernment, in  reserving  the  numerous  small 
lakes  of  the  state  from  sale,  Intended  them 
for  the  public  use.  No  attention  has  been 
bestowed  thereon  since  by  the  government, 
and  in  all  respects,  save  In  the  regulation 
of  commerce,  nonnavigable  lakes  like  those 
which  are  navigable,  have  been  treated  as 
under  the  control  and  sovereignty  of  the 
state.  Effect  to  patents  of  the  shore  lands 
as  to  the  beds  of  lakes  of  either  character, 
according  to  the  construction  of  state  courts, 
has  been  given  t>y  the  federal  courts.  The 
only  tenable  ground  for  these  decisions  is 
that  the  state,  either  as  owner  of  the  beds 
or  entitled  to  control  the  beds  and  the  wa- 
ters in  them,  should  determine  whether 
these  or  parts  of  them  shall  pass  under  con- 
veyance of  the  shore  lands.  That  the  reserva- 
tion of  nonnavigable  meandered  lakes  by  the 
United  States  has  been  for  the  state  in  trust 
for  all  the  people  seems  to  have  been  the 
opinion  of  tbe  courts  of  Wisconsin  and  Illi- 
nois. The  Supreme  Court  of  Wisconsin  so 
declared  in  Nee-Pee-Nank  Club  v.  Wilson,  96 
Wis.  290,  71  N.  W.  661,  saying  that  the  soU 
under  tbe  lake  "is  owned  by  the  state.  The 
right  of  fishing  and  fowling  upon  such  waters 
is  in  the  owner  of  tbe  soil  which  is  under  the 
water."  See  Mendota  Club  v.  Anderson,  101 
Wis.  479,  78  N.  W.  185.  In  Hammond  t. 
Shepard,  180  111.  235,  57  N.  E  867,  78  Am. 
St.  Rep.  274,  the  court  remarked:  "The  law 
of  this  state,  as  repeatedly  announced,  Is 
that  the  shore  owner  on  meandered  lakes, 


whether  navigable  or  nonnavigable,  takes  title 
only  to  the  water's  edge,  tbe  bed  of  the  lake 
being  In  the  state."  In  Schulte  v.  Warren, 
218  111.  108,  75  N.  E.  783,  18  L.  R.  A.  (N.  S.) 
745,  it  Is  said:  "The  ownership  of  the  bed 
of  tbe  lake  is  in  the  state  In  trust  for  all  tbe 
people  for  the  purpose  of  fishing,  boating. 
and  the  like."  And  in  Fuller  v.  Shedd,  161 
111.  462,  44  N.  E.  286,  33  L.  R.  A.  146,  52  Am. 
St  Rep.  380,  tbe  court,  speaking  through 
Phillips,  X,  said:  "The  policy  of  the  state, 
of  recent  years  has  been  to  stock  its  water, 
both  streams  and  lakes,  with  fish,  as  a  means 
of  giving  cheap  and  valuable  food  to  our  citi- 
zens, and,  with  this  purpose,  regular  appro- 
priations and  expenditures  are  made.  If  we 
depart  from  the  reasonable  rule  we  have  es- 
tablished, tbe  smaller  nonnavigable  lakes 
would  become  the  private  waters  of  riparian 
owners,  pertinent  to  their  lands,  with  exclu- 
sive rights  thereon  as  to  boating,  fishing,  and 
the  like,  from  which  the  body  d  the  people 
would  t>e  excluded,  a  principle  inconsistent 
with  and  not  suited  to  the  condition  of  out 
people,  nor  called  for  as  a  rule  of  law. 
•  *  •  We  are  asked  to  overrule  the  lat- 
ter case  (Trustee  v.  SchroU,  120  111.  609,  12 
N.  E.  213,  60  Am.  Rep.  575)  and  hold  that  the 
grant  to  the  riparian  owner  conveys  the  bed 
of  a  nonnavigable  lake  and  makes  its  waters 
mere  private  water.  We  decline  to  do  so. 
By  such  holding,  so  long  as  such  meandered 
lakes  exist,  over  their  waters  and  bed,  when 
covered  with  water,  the  state  exercises  con- 
trol, and  holds  the  same  in  trust  for  all  the 
people,  who  alike  have  benefit  thereof  In 
fishing,  boating,  and  the  like.  By  the  adop- 
tion of  this  principle,  which  applies  alike  to 
all  meandered  lakes,  streams,  and  rivers, 
there  is  no  conflict  with  that  applying  to  tbe 
sea;  and  littoral  proprietors  and  riparian 
owners  alike  have  all  the  benefits  and  rights 
of  such  ownership,  and  take  accretions  to 
their  lands."  This  case  again  appears  as 
Hardin  v.  Shedd,  177  111.  123,  62  N.  E.  380, 
from  which  the  appeal  was  taken  to  the  Su- 
preme Court  of  the  United  States.  Like  de- 
cisions are  to  be  found  in  Massachusetts  and 
Maine,  but  as  these  are  based  on  an  ordinance 
of  the  former,  enacted  In  1647,  which  made 
every  lake  of  more  than  10  acres  in  extent 
public,  they  are  not  pertinent  West  Roxbnry 
V.  Stoddard,  7  Allen  (Mass.)  158;  Bradley  r. 
Rice,  13  Me.  198,  29  Am.  Dec.  601. 

We  are  not  now  concerned  with  the  in- 
quiry as  to  whether  the  state  may  dispose  of 
these  lake  beds  In  a  manner  inimicable  to 
the  purposes  of  their  reservation  by  the  gen- 
eral government  It  is  enough  to  dispose  of 
the  case  at  bar  to  decide,  as  we  do,  that  tbe 
state  has  such  an  interest  in  Ooose  Lake  as 
will  support  an  action  to  restrain  defendants, 
who  are  without  title,  from  draining  the  wa- 
ters therefrom,  or  otherwise  exercising  pro- 
prietary control  over  the  same. 
The  decree  of  the  trial  court  is  affirmed. 


Digitized  by 


Google 


K-D.) 


DEAN  T.  DIMMICE. 


245 


DEAN  T.  DIMMICK,  Connty  Auditor,  «t  al. 
(Saprenw  Court  of  North  Dakota.     Oct.   27, 

1908.    On  Rehearins,  Jane  29,  1909.) 
CoHsnnjTioNAi.   Law    (8   42*)— Determina- 
tion OF  CONBTTrnTIONAI,  Civsffapj^B. 

In  a  mandamoa  proceeding,  instituted  by 
a  private  party  against  county  oflScers  to  com- 
pel them  to  change  the  location  of  their  ofSces 
as  such  officeis,  such  proceeding  not  being  main- 
tained in  the  name  of  the  state,  or  on  behalf 
of  the  citizens  of  such  county,  the  court  will, 
not  determine  the  constitutionality  of  an  act 
of  the  Legislature  providing  for  a  vote  npon 
the  relocation  of  the  county  seat 

[Ed.  Note.— For  other  cases,  see  Constitution- 
al Law,  Cent.  Dig.  iS  89,  40:   Dec.  Dig.  i  42.*] 
(Syllabus  by  the  Court) 

Appeal  from  District  Court,  McKenzle 
County;  Winchester,  Judge. 

Application  by  Thomas  H.  Dean  for  writ 
of  mandamus  against  B.  W.  Dimmlck,  Coun- 
ty Auditor,  and  others.  Judgment  for  de- 
fendants, and  plaintiff  appeals.    Affirmed. 

Engerud,  Holt  &  Frame,  for  appellant. 
T.  S.  Becker  and  Geo.  A.  Bangs,  for  respond- 
ents. 

SPALDING,  J.  This  proceeding  was  In- 
Btitnted  by  the  plaintiff,  a  private  party,  by 
the  service  upon  each  of  the  defendants  of 
the  petition  and  a  notice  of  application  to 
the  district  court  for  an  order  directing  the 
Issuance  of  a  peremptory  writ  of  mandamus, 
commanding  the  defendants  to  forthwith  re- 
move their  respective  offices,  namely,  the 
offices  of  Judge  of  the  county  court,  register 
of  deeds,  and  auditor  of  McKenzle  county, 
from  Schafer  to  Alexander  In  said  county. 
The  petition  set  out  the  holding  of  an  elec- 
tion under  the  provisions  of  chapter  77,  p. 
159,  Laws  1905,  and  that  at  such  election 
Schafer  received  a  majority  of  the  votes 
cast,  and  was  duly  declared  to  be  the  coun- 
ty seat  of  said  county  by  the  issuance  and 
publication  of  a  proclamation  by  the  county 
commissioners,  as  required  by  said  chapter. 
It  further  alleges  that  said  officers  removed 
their  said  offices  to  Schafer,  and  still  con- 
tinue to  maintain  them  at  that  place.  We 
are  asked  to  decide  on  the  constitutionality 
of  said  chapter.  The  petition  was  demurred 
to  by  the  defendants,  and  the  district  court 
sustained  such  demurrer,  and  It  is  In  this 
court  by  appeal. 

We  are  met  by  several  claims  of  error. 
The  decision  of  one  of  such  claims  wUl  dis- 
pose of  the  appeal.  The  proceeding  Is  not 
Instituted  by  or  on  behalf  of  the  state,  either 
on  the  relation  of  the  Attorney  General,  or 
of  any  citizen  of  McKenzle  county,  and  It 
Is  not  alleged  that  any  application  was  made 
to  the  Attorney  General  for  leave  to  pro- 
ceed in  the  name  of  the  state.  It  is  con- 
tended that  the  proceeding  cannot  be  main- 
tained by  a  private  individual,  and  tbtlt  the 
constitutionality  of  a  law  will  not  be  deter- 


mined upon  an  application  for  a  writ  of 
mandamus  made  by,  and  In  the  name  of, 
a  private  party,  when  the  subject-matter  1» 
one  of  a  public  nature.  On  the  other  hand, 
it  Is  maintained  that  such  doctrine  applies 
only  to  the  writ  when  Issued,  and  that,  pre- 
liminary to  the  Issuance  of  a  writ,  it  is  un- 
necessary to  entitle  the  proceedings,  and  that 
the  constitutionality  of  a  law  can  be  ques- 
tioned In  any  proceeding.  We  have  given 
the  question  Involved  very  careful  consid- 
eration, and  while  Its  pn^ier  solution  Is  not 
without  doubt,  have  arrived  at  the  conclu- 
sion that  the  plaintiff  has  not  placed  him- 
self In  a  position  to  demand  this  writ  Tha 
question  is  one  of  public  concern.  In  which 
all  the  citizens  of  McKenzle  county  are  in- 
terested. The  plaintiff  shows  no  Interest 
further  or  other  than  that  possessed  by  all 
citizens  of  the  county.  While  the  mere 
entitling  of-  a  proceeding  may  be  a  matter 
of  slight  Importance,  and  In  some  cases  a 
formality,  yet  In  this  proceeding  the  title 
is  used  to  Indicate  who  the  moving  party 
is,  and,  having  been  used,  it  shows  that 
the  move  Is  not  being  made  by  the  public, 
and  the  petitioner  does  not  even  allege  that 
It  Is  made  on  behalf  of  other  citizens  sim- 
ilarly situated. 

In  State  ez  rel.  Dakota  Hall  Ass'n  v.  Ca- 
rey, 2  N.  D.  86,  49  N.  W.  164,  it  is  said  that 
the  required  affidavit  may  be  properly  made 
by  any  citizen  of  the  locality  affected,  where 
the  controversy  does  not  concern  the  state 
as  such,  but  does  concern  a  large  class  of 
citizens  in  common.  This  statement,  how- 
ever, refers  only  to  the  competency  of  a 
private  Individual  to  make  the  affidavit,  and 
does  not  determine  who  may  institute  the 
proceeding,  or  In  whose  name  it  may  be 
brought.  It  Is  said  In  the  same  case  "that 
the  name  of  the  state  should  be  inserted 
in  the  writ,  In  connection  with  the  name  of 
the  relator.  In  all  cases,  whether  the  matter 
is  one  In  which  the  state  as  such  is  strictly 
a  party  in  interest  or  not,  or  whether  the 
question  Is  one  of  public  concern  or  purely 
private  dispute."  But  In  this  proceeding 
It  is  not  attempted  to  show  that  the  right 
which  the  petitioner  seeks  to  secure  Is  one 
which  affects  him  In  any  way  peculiar  to 
himself,  and  from  the  nature  of  the  con- 
troversy we  must  assume  that  It  only  af- 
fects him  In  the  same  manner  as  It  affects 
all  other  taxpayers  and  citizens  of  the  coun- 
ty, all  of  whom  are  Interested  In  the  loca- 
tion of  the  county  seat.  In  such  a  case  we 
think  the  matter  should  not  be  litlented  in 
this  manner.  The  public  has  a  right  to  be 
heard;  and,  if  we  were  to  determine  the 
constitutionality  of  the  statute  In  question, 
and  on  which  the  result  may  depend,  we 
should  have  to  pass  upon  the  rights  of  the 
public  at  the  instigation  of  a  private  cit- 
izen, in  his  personal  capacity  as  a  private 
Suitor.    In  the  meantime  other  proceedings. 


•Fior  other  cases  ■««  wm«  topic  and  lectlcn  NUMBER  in  Dec.  ft  Am.'Dlgs.  1907  to  dat«,  ft  Reporter  Indue 


Digitized  by  VjOOQ  l€ 


246 


122  NORTHWESTERN  REPORTER. 


(N.n 


by  other  {ffivate  IndlTidnals,  might  be  In- 
atltuted,  tbe  rights  of  none  of  whom  would 
be  settled  by  the  decision  in  this  case. 
Kach  citizen  of  the  county  might  see  some 
additional  reason  wliy  the  law  should  be 
held  constitutional  or  nnconstitutlonal,  and 
desire  to  present  it  to  the  court  Several 
authorities  are  cited  on  this  and  analagous 
questions,  which  we  consider  as  not  being 
in  point 

It  is  contended  that  mandamus  proceed- 
ings cannot  I>e  maintained  -  In  any  case  to 
determine  the  constitutionality  of  a  law. 
This  does  not  follow  from  our  holding  In 
this  case,  and  there  are  few,  if  any,  of  the 
authorities  cited  which  on  close  analysis  sus- 
tain this  principle.  Most  of  them  are  to 
the  effect,  when  closely  scrutinized,  that 
courts  will  not  entertain  an  application  for 
a  writ  of  mandamus  for  the  purpose  of  test- 
ing the  constitutionality  of  a  statute  when 
not  presented  to  the  court  long  enough  be- 
fore action  Is  necessary  to  gire  it  an  op- 
portunity to  thoroughly  consider  the  ques- 
tion involTed.  This  we  think  is  a  Tery 
sound  rule,  but  it  is  not  applicable  to  the 
proceeding  at  bar. 

In  addition  to  the  authority  from  our  own 
court  which  we  have  cited,  we  call  atten- 
tion to  Fraser  et  al.  v.  Freelon,  Judge,  53 
Cal.  644,  and  Davis  ▼.  Superior  Court,  63 
Cal.  581. 

The  appellant  asked  leave,  on  the  hear- 
ing in  the  district  court  to  amehd  forthwith 
by  substituting  the  state  as  plaintiff.  Per- 
mission to  do  so  was  denied  for  the  time 
being,  but  In  the  order  sustaining  the  de- 
murrer permission  was  granted  to  amend 
on  payment  of  costs.  Appellant  declined  to 
comply  with  the  terms  imposed,  which.  In 
our  Judgment,  were  reasonable  under  the 
circumstances. 

By  reason  of  the  foregoing  conclusion,  it 
would  be  improper  to  pass  upon  the  ques- 
tion raised  by  the  respondent  as  to  the  ef- 
fect of  delay  In  commencing  the  proceed- 
ing. 

The  order  of  the  district  court  is  affirmed. 

MORGAN,  C.  J.,  concurs. 

FISK,  J.  (concurring  specially).  I  concnr 
in  the  conclusion  arrived  at  in  the  majority 
opinion  that  the  order  appealed  from  should 
be  affirmed,  but  I  desire  to  place  my  deci- 
sion upon  the  ground  that  the  demurrer  was 
properly  sustained  for  the  reason  that  relator 
falls  to  show  a  clear  legal  right  to  the  writ. 
His  right  depends  on  a  holding  that  chap- 
ter 77,  p.  159,  I^ws  1905,  is  unconstitution- 
al. Under  the  provisions  of  said  statute  the 
electors  of  McKenzie  county,  assuming  the 
validity  of  such  law,  held  an  election  for 
the  purpose  of  permanently  locating  the 
county  seat,  which  election  resulted  in  fa- 
vor of  the  village  of  Schafer.  A  proclama- 
tion was  issued  and  published  by  the  com- 
missioners pursuant  thereto,  declaring  Scha- 


fer to  be  the  county  seat  Respondents,  who 
are  mere  ministerial  officers,  acted  In  ac- 
cordance with  such  proclamation  by  remov- 
ing their  offices  to  Schafer.  Therefore,  In 
maintaining  their  offices  at  the  latter  place. 
they  acted  under  color  of  legal  authority  con- 
ferred and  duly  imposed  by  a  statute  pre- 
sumed to  be  valid.  Schafer  has  been  recog- 
nized by  the  people  of  that  county  as  the 
county  seat,  and,  under  the  foregoing  facts. 
it  is,  and  has  been  since  such  proclamation 
was  issued  and  published,  at  least  the  de 
facto  county  seat  of  the  county,  and  in  my 
opinion  a  writ  of  mandamus  ought  not  to 
Issue  on  the  application  of  a  private  relator 
to  compel  them  to  remove  their  offices  to 
another  place  claimed  by  the  relator  to  be 
the  de  Jure  county  seat  when  the  correct- 
ness of  such  contention  depends  wholly  up- 
on the  question  whether  a  certain  act  of 
the  Legislature  is  or  is  not  constitutional. 
In  support  of  my  views  see  19  Am.  &  Bng. 
Bnc.  of  Law,  763,  26  Cyc.  156,  and  cases 
cited,  where  the  rule  is  announced  as  fol- 
lows: "It  is  rarely,  if  ever,  proper  to  award 
mandamus  in  a  case  in  which  it  can  be  done 
only  by  declaring  an  act  of  the  Legislature 
unconstitutional." 

On   Rehearing. 

8PALDINO,  J.  A  reargument  was  grant- 
ed in  this  case.  We  have  carefully  con- 
sidered the  argument  so  made,  and  find  few, 
if  any,  of  the  authorities  cited  in  point 
The  appellant  strenuously  insists  that  a  de- 
cision ought  to  be  had  on  the  merits  to  end 
litigation.  There  would  be  more  force  In 
this  suggestion  if  it  were  likely  to  do  so, 
but  for  the  reasons  above  suggested,  it  can- 
not be  assumed  that  a  different  decision 
would  result  in  ending  litigation  over  the 
county  seat  We  find  no  reasons  for  chan- 
ging our  decision.  In  this  connection,  for  the 
information  of  the  bar  of  the  state,  we  de- 
sire to  call  attention  to  rule  32  of  this  court, 
found  in  10  N.  D.  Ivl,  91  N.  W.  xU,  pre- 
scribing the  practice  relating  to  applications 
for  rehearlngs.  In  nearly  every  instance  at- 
torneys so  applying  overlook  the  rule,  or 
disregard  it  and  submit  arguments  of  the 
questions  already  considered  and  determined 
and  new  briefs.  It  is  not  intended  to  pro- 
vide for  a  reargument  of  the  whole  case  on 
a  petition  for  rehearing,  but  only  that  coun- 
sel may  show  that  some  question  decisive  of 
the  case,  and  duly  submitted  by  counsel,  has 
been  overlooked  by  the  court  or  that  the 
decision  is  in  conflict  with  an  express  stat- 
ute or  controlling  decision,  to  which  the 
attention  of  the  court  was  not  called  either 
on  the  original  brief  or  oral  argument,  or 
which  has  been  overlooked  by  the  court: 
and  arguments  and  briefs  are  prohibited. 
Many  attorneys  have  adopted  the  custom  ol 
submitting  In  a  petition  for  rehearing  a 
complete  brief  of  all  the  questions  original- 
ly raised.    This  compels  the  court  either  to 


Digitized  by  VjOOQ  l€ 


S.  D.) 


BALDWIN  T.  BOHL. 


247 


ignore  the  petition  entireiy,  or  to  re-examine 
the  questlouB  prerlonsly  submitted  and  pass- 
«Hl  upon.  This  practice  is  contrary  to  the 
purpose  of  the  rule.    All  concur. 

MORGAN,  C  J.,  not  participating. 


BALDWIN  T.  BOHL. 

(Supreme  Court  of  Sooth  Dakota.     June  26, 
1909.) 

1.  FORCIBI.K  ENTBT  AlTD  Detaineb  (I  80*) — 
Whbt  Libs. 

Bev.  ar.  Code,  |  2322,  provides  that  in 
actions  for  forciUy  ejecting  or  excluding  a 
party  from  poaaesaion  of  real  property,  the 
measure  of  damages  is  three  times  such  a  sum 
as  would  compensate  for  the  detriment  caused 
to  bim  by  the  action  complained  of.  Held  that, 
where  defendant  was  holding  the  possession  of 
property  under  a  claim  of  right,  he  was  not 
liable  nader  such  section. 

rE^  Note.— For  other  cases,  see  Forcible 
Entry  and  Detainer,  Dec.  Dig.  S.30.*] 

2.  Use  ard  Ocottpation  ({  1*)— Comfensa- 
now. 

Under  Rev.  CIt.  Code,  {  2313,  providing 
that  the  detriment  caused  by  the  wrongful  oc- 
oapation  of  real  property,  etc.,  is  deemed  to  be 
the  value  of  the  use  of  the  property  for  the  time 
of  such  occupation,  etc.,  one  occupying  real 
property  wrongfully,  and  not  under  lease  or 
agreement  to  pay  rent,  is  required  to  compen- 
sate the  owner  and  to  pay  him  therefor  the 
damage  or  detriment  caused  by  such  occupa- 
tion and  use  of  the  premises. 

[EM.  Note.— For  other  cases,  see  Use  and  Oc- 
cupation, Gent  Dig.  {f  1-11;    Dec  Dig.  |  1.*] 

3.  Use  and  Occupatiow  (|  1*)— Recovbbt  of 

CbxTENSATION. 

Under  said  section,  the  owner  in  such  ease 
may  waive  the  tort  or  trespass,  and  recover 
the  actual  value  and  use  of  the  property  dur- 
ing the  time  its  possession  is  withheld  from  him. 
[E2d.  Note.— For  other  cases,  see  Use  and  Oc- 
cupation, Cent.  Dig.  H  l-U ;   Dec.  Dig.  S  !•*] 

4.  Use  ahd  Occupation  (|  10*)— Akotint  or 
Recovxbt. 

Under  said  section,  where  the  evidence 
showed  that  defendant  unlawfully  occupied 
plaintiff's  property  and  cropped  the  same,  and 
that  the  value  of  plaintifTs  interest  in  the  crop 
or  rental  was  by  custom  one-fourth  of  the  val- 
ue of  the  crop,  a  judgment  for  such  sum  in 
plaintiiTs    favor   was    properly    rendered. 

[Ed.  Note. — For  other  cases,  see  Use  and  Oc- 
cupation, Cent.  Dig.   {  26;    Dec.  Dig.  |  10.*] 

Appeal  from  Circuit  Court,  Spink  County. 

Action  by  Emma  B.  Baldwin  against  Emll 
a.  BohL  Judgment  for  plaintiff,  and,  from 
an  order  denying  a  new  trial,  defendant  ap- 
peals.    Affirmed. 

W.  F.  Corrlgan  and  Taubman,  William- 
son &  Herried,  for  appellant  Sterling  ft 
Clark,  for  respondent. 

CORSON,  J.  This  case  la  before  us  on 
appeal  from  a  Judgment  entered  upon  a  di- 
rected verdict  In  favor  of  the  plaintiff,  and 
from  the  order  denying  a  new  trial.  The 
action  was  instituted  by  the  plaintiff  to  re- 
cover of  the  defendant  treble  the  value  of 
the  use  and  occupation  of  a  certain  quarter 


section  of  land  situated  in  Spink  county. 
It  is  alleged  In  the  complaint.  In  substance, 
that  the  plaintiff  la  the  owner  of  sold  prem- 
ises ;  that  about  the  2d  day  of  AprU,  1006,  the 
defendant,  without  right,  leave,  or  authority 
so  to  do,  entered  upon  the  possession  of  said 
premises,  and  has  ever  since  used  and  culti- 
vated and  cropped  the  same  for  his  own  use 
and  benefit,  and  against  her  demand  for  pos- 
session; that  about  the  25th  day  of  April, 
1906,  plaintiff  sought  to  enter  upon  said  prem- 
ises for  the  purpose  of  cultivating  and  crop- 
ping the  same,  but  that  thereupon  defendant, 
without  reason  or  cause,  forcibly  ejected  and 
excluded  her  from  the  possession  of  said 
real  property;  that  ISO  acres  of  said  land 
was  cultivated  by  the  said  defendant,  who 
kept  and  retained  the  entire  crop  there- 
from, and  converted  the  same  to  his  own  use 
and  benefit;  that  the  premises  yielded  dur- 
ing the  year  1006,  1,920  bushels  of  wheat 
and  2,450  bushels  of  barley,  and  that  the 
plaintiff  was  entitled  to  the  value  of  one- 
fourth  thereof,  being  |476.65,  and  that  by 
reason  thereof  plaintiff  is  entitled  to  Judg- 
ment for  treble  damages  for  which  she  prays 
Judgment  for  $1,420.65,  and  costs  and  dis- 
bursements in  this  action.  The  defendant 
In  his  answer  denied  the  allegations  of  the 
complaint,  and  for  a  second  defense  alleg- 
ed that  about  the  month  of  April,  1905,  BenJ. 
J.  Baldwin,  the  husband  of  the  plaintiff,  was 
in  possession  of  said  real  estate  and  prem- 
ises described  in  the  complaint,  claiming 
to  own  the  same;  that  on  or  about  said 
month  of  April,  1005,  the  said  defendant 
and  the  said  Baldwin  entered  into  an  oral 
agreement  wherein  and  whereby  it  was 
agreed  that  the  defendant  should  trade  to 
the  said  BenJ.  J.  Baldwin  a  certain  quarter 
section  of  land  described  for  the  real  estate 
described  In  the  complaint;  that.  In  pursu- 
ance of  said  agreement,  said  Baldwin'  did 
enter  upon,  and  take  possession  of,  and  did 
farm  the  said  quarter  section  of  land  during 
the  years  1905  and  1906,  and  that  said  BenJ. 
J.  Baldwin,  as  the  defendant  is  Informed 
and  believes,  was  the  real  and  actual  owner 
of  the  real  estate  described  In  the  complaint 
At  the  conclusion  of  the  evidence,  the  de- 
fendant moved  for  the  direction  of  a  verdict 
in  his  favor,  and  thereupon  the  plaintiff  mov- 
ed for  the  direction  of  a  verdict  in  her  favor. 
The  court  denied  the  defendant's  motion, 
but  granted  the  motion  of  the  plaintiff, 
and  directed  a  verdict  in  her  favor  for  the 
sum  of  one-fourth  of  the  value  of  the  wheat 
and  barley  amounting  to  the  sum  of  $381, 
for  wliich  Judgment  was  duly  entered  in 
favor  of  the  plaintiff  and  against  the  de- 
fendant. 

It  appears  from  the  abstract  and  addition- 
al abstract  that  an  action  was  commenced  by 
the  defendant  against  BenJ.  J.  Baldwin  to  en- 
force the  specific  performance  of  said  al- 


•For  otliar  cuei  le*  wme  topic  and  tectlon  NUMBER  is  Deo.  *  Am.  Dlfi.  1907  to  date,  Jb  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


248 


122  NORTHWESTERN  RBFORTBB. 


(S.D. 


leged  coDtract  betwem  the  defendant  and 
tbe  said  Baldwin,  and  that  prior  to  the 
commencement  of  this  action  that  action  had 
been  dismissed,  a  demurrer  to  the  complaint 
having  tteen  sustained  by  the  court  It  is 
disclosed  by  the  evidence  that  said  BenJ. 
J.  Baldwin,  the  husband  of  the  plaintfT,  had 
never  become  the  owner  of  the  quarter  sec- 
tion of  land  which  It  .was  alleged  by  the  de- 
fendant he  had  agreed  to  exchange  with  him 
for  the  quarter  section  of  land  owned  by  the 
plaintiff  in  this  action,  but  that  he  had  an 
agreement  by  which  said  premises  was  to  t>e 
conveyed  to  him  from  Its  owner,  but  which 
agreement  was  never  carried  into  ettect,  and 
the  property  was  purchased  and  paid  for  by 
the  piaintur.  It  is  stated  In  the  brief  and  ar- 
gument for  the  dpQellant  that  the  only  ques- 
tion In  this  case  is.  Was  the  defendant  lia- 
ble for  the  use  of  the  premises  during  the 
cropping  season  of  1906?  It  is  contended  by 
the  appellant  that  as  the  defendant  had  gone 
into  possession  of  the  real  estate,  under  a 
verbal  contract  of  trade  with  the  husband  of 
of  the  plaintifF,  and  that  when  the  fee  of  the 
real  estate  passed  to  the  plaintifF,  she  had 
full  knowledge  of  defendant's  possession  and 
of  his  claim  under  the  agreement  with  her 
husband,  she  therefore  took  the  real  estate 
with  the  full  knowledge  of  the  rights  of  the 
defendant,  and  consequently  could  not  recov- 
er in  this  action  for  the  value  of  the  use 
and  occupation  of  the  premises ;  that  this 
action  Is  essentially  to  recover  rent,  and  that, 
in  order  to  recover  rent,  plaintiff  must  show 
an  agreement,  express  or  implied,  to  pay 
rent,  and  that  the  record  In  this  case  shows 
that  there  was  no  such  intention  of  defend- 
ant to  agree  to  pay  rent,  and  therefore  the 
plaintiff  was  not  entitled  to  recover  rent  in 
this  action. 

It  Is  contended,  however,  by  the  respond- 
ent that  the  undisputed  facts  show  that  the 
plaintiff  Is  the  owner  of  the  land,  and  has 
been  at  all  times  the  owner  thereof,  since 
October  9,  1905 ;  that  defendant  used  it  dur- 
ing the  cropping  season  of  1906,  and  took 
therefrom  $1,524.14,  In  value,  of  produce; 
that  the  usual  and  customary  rent  for  farm 
lands  that  year  in  that  neighborhood  was 
one-fourth  share  delivered  at  the  elevator, 
and  that  the  rent  due  the  plaintiff  for  the 
crop  during  the  year  of  1906  was  the  sum 
of  $381.04 ;  that  defendant  had  not  paid  any- 
thing for  the  use  of  the  land,  and  absolutely 
refused  to  pay  to  any  one,  denying  liability 
therefor;  that  the  claim  upon  which  the 
defendant  based  his  rights  to  possession  of 
the  land  during  1906  was  litigated  result- 
ing adversely  to  bis  contention,  and  the  ac- 
tion terminated  before'  the  commencement 
of  the  present  action.  The  court,  in  di- 
recting a  verdict,  seems  to  have  adopted  the 
contention  of  the  respondent  in  directing  a 
verdict  in  favor  of  the  plaintiff.  There  were 
no  buildings  or  other  improvements  upon  the 
premises  in  controversy,  and  it  is  disclosed 


by  the  evidence  that  In  the  spring  of  1906 
the  plaintiff  forbade  the  defendant  from  en- 
tering upon  the  said  land  or  cropping  the 
same,  unless  he  accepted  a  farm  lease  from 
her,  which  he  refused  to  do,  but  proceeded 
to  cultivate  and  crop  the  premises,  raising 
the  crop  heretofore  referred  to. 

It  is  provided  by  section  2313  of  our  Re- 
vised Civil  Code  that:  "The  detriment  caus- 
ed by  the  wrongful  occupation  of  real  prop- 
erty, in  cases  not  embraced  in  sections  2314, 
2320,  2321  and  2322,  is  deemed  to  be  the  val- 
ue of  the  use  of  the  property  for  the  time 
of  such  occupation,  not  exceeding  six  years 
next  preceding  the  commencement  of  the 
action  or  proceeding  to  enforce  the  rights 
to  damages,  and  the  cost,  if  any,  of  recover- 
ing the  possession."  Section  2314  provides 
for  damages  for  the  willful  holding  over  of 
property.  Section  2320  provides  for  the  fail- 
ure of  a  tenant  to  give  up  possession  of  the 
premises.  Section  2321  provides  for  willfully 
holding  over.  And  section  2322  provides  that 
in  actions  for  "forcibly  ejecting  or  excluding 
a  party  from  the  possession  of  real  proper- 
ty, the  measure  of  damages  is  three  times 
such  a  sum  as  would  compensate  for  the 
detriment  caused  to  him  by  the  act  complain- 
ed of."  This  action  therefore,  if  maintain- 
able. Is  maintainable  under  the  provisions  of 
section  2313  above  quoted,  as  the  court  very 
properly  found  that  as  the  defendant  was 
holding  possession  of  the  property  under  a 
claim  of  right,  he  was  not  liable  for  the 
treble  damages  provided  for  in  section  2322. 

In  18  Am.  &  Eng.  Ency.  of  Law,  265,  the 
rule  as  to  Implied  contract  to  pay  rent  is 
thus  stated:  "When  the  entry  by  the  defend- 
ant was  peaceful,  though  without  any  agree- 
ment with  the  owner,  as  where  at  the  time 
of  the  defendant's  entry  the  premises  were 
vacant,  it  has  been  held  that  the  owner 
could  acquiesce  In  such  entry  and  treat  the 
occupier  as  his  tenant,  so  as  to  enable  him 
to  recover  in  assimipslt  for  use  and  occupa- 
tion." We  are  of  the  opinion  that  the  facts 
as  disclosed  by  the  record  in  this  case  bring 
the  same  within  the  rule  above  stated. 

It  will  be  observed  that  by  section  2313 
the  owner  of  the  real  property  is  entitled 
to  recover  for  the  detriment  or  damage  caus- 
ed by  the  wrongful  occupation  of  real  prop- 
erty, and  that  there  Is  no  condition  therein 
limiting  the  recovery  to  cases  In  which  there 
is  an  agreement  for  rent,  express  or  im- 
plied. If  a  party  therefore  occupies  real 
property  wrongfully,  and  not  under  a  lease 
or  agreement  to  pay  rent,  he  is  still  required 
to  compensate  the  owner,  and  to  pay  him 
therefor  the  damage  or  detriment  caused  by 
such  occupation  and  use  of  the  premises. 
The  owner  in  such  case  may  waive  the  tort 
or  trespass  and  recover  the  actual  value  and 
use  of  the  property  during  the  time  its  po»- 
session  is  withheld  from  lilm.  Section  2318 
of  our  Code  is  a  literal  copy  of  section  1861 
of  the  proposed  Code  of  New  Zork,  and  the 


Digitized  by  VjOOQ  l€ 


S.DO 


miijEs  v.  penn  mutual  life  ins.  oo. 


24» 


commiaslonera  in  their  note  to  that  section, 
dte  as  authority,  upon  which  the  same  la 
based,  Jackson  t.  Wood,  2i  Wend.  (N.  Y.)  443. 
That  case  was  an  action  In  ejectment  to  re- 
cover possesalon  of  property,  and  was  decided 
in  favor  of  the  plaintiff.  Thereupon,  under 
the  proceedings  in  the  old  common-law  prac- 
tice, a  suggestion  was  made  that  the  plaintiff 
was  entitled  to  |20,CMX),  for  the  use  and  oc- 
cuitatlon  of  the  premises.  The  court  In 
sustaining  the  plalntlfTs  contention,  and  as 
to  the  manner  of  ascertaining  the  amount 
of  detriment  caused  by  the  wrongful  occupa- 
tion of  the  property,  says:  "As  rents  In  the 
city  of  New  York,  where  these  premises  are 
situate,  are  payable  at  the  usual  quarter 
days,  I  think  the  referees.  In  ascertaining 
the  value  of  the  mesne  profits,  were  war- 
ranted in  adding  to  the  annual  rent  the  in- 
terest quarterly.  So  much  the  plaintiff  has 
lost,  and  the  defendant  enjoyed,  by  means 
of  the  wrongful  possession."  In  the  case 
at  bar  it  was  clearly  established  by  the  evi- 
dence that  the  plaintiff  was  the  owner  of 
the  property;  that  the  defendant  occupied 
and  cropped  the  same  during  the  year  1906, 
and  that  the  value  of  the  plaintiffs  Interest 
in  the  crop  or  rental  for  that  year  by  custom 
was  one-fourth  of  the  value  of  the  crop 
raised,  which  seems  to  be  conceded  amounted 
to  1381.04,  and,  these  facts  being  undis- 
puted, the  court  was  clearly  right  in  direct- 
ing a  verdict  In  favor  of  the  plaintiff  for 
the  value  of  one-fourth  of  the  crops  so  rais- 
ed by  the  defendant  upon  the  premises,  as 
the  detriment  caused  by  the  defendant's  un- 
lawful occupation  of  the  same.  McDermott 
V.  Carroll,  11  S.  D.  823,  77  N.  W.  579 ;  Olson 
V.  Huntamer,  6  S.  D.  375,  61  N.  W.  479. 

In  the  view  we  have  taken  of  the  case,  and 
the  construction  we  have  given  to  the  sec- 
tion of  the  Code  relating  to  the  recovery 
of  damages  for  the  wrongful  occupation  of 
property,  we  have  not  deemed  it  necessary 
to  review  the  authorities  cited  on  the  part 
of  the  defendant,  nor  to  review  the  evidence 
In  the  case,  nor  to  reproduce  It  in  this  opin- 
ion, as  the  evidence  Is  undisputed  as  to  the 
main  facts  Involved  In  the  case,  and  the 
court  ruled  with  the  defendant  as  to  plain- 
tUTs  daim  for  treble  damages. 

The  Judgment  of  the  circuit  court  and  or^ 
der  denying  a  new  trial  are  affirmed. 

WHITINO,  X,  taking  no  part  in  this  de- 
dsloD. 


MILB8  v.  PENN  MUTUAIi  UPB  INS.  CO. 
OP  PHILADELPHIA. 

(Snpreme  Conrt   of   South  Dakota.     June  26, 
1909.) 

1.  TaiAi,  (I  260*)— iNSTBUOTioNs— Requests. 
It  is  not  error  to  refase  a  requested  charge 
folly  covered  by  instructions  given. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  (I  651-659;    Dec.  Dig.  §  260.  •] 


2.  Tbial  rt  329*)— VEBDior— Cebtaihtt. 

Plaintiff  sued  on  a  policy  on  her  husband's 
life  by  which  defendant  agreed  to  pay  $6,000 
on  the  event  of  her  husband's  death  unless  he 
died  from  suicide  within  a  year,  when  its  lia- 
bility was  limited  to  the  first  premium  amount- 
ing to  $72  and  interest  The  sole  issue  tried 
was  whether  deceased  came  to  his  death  by 
suicide.  The  jury  returned  a  verdict,  "We, 
the  fniy,  in  the  above-entitled  action  find  all 
the  issues  in  favor  of  plaintiff,  and  assess  her 
damages  at  the  sum  of  $77."  Held  that  the 
verdict  constituted  a  finding  that  the  insflred 
died  from  suicide,  and  was  sufficient  to  sus- 
tain a  judgment  for  plaintiff  for  the  amount 
stated. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  I  775;   Dec.  Dig.  {  329.*] 

Haney,  P.  J.,  dissenting. 

Appeal  from  Circuit  Court,  Minnehaha 
County. 

Action  by  Nora  M.  Miles  against  the  Penn 
Mutual  Life  Insurance  Company  of  Philadel- 
phia. .  Judgment  for  defendant,  and  plain- 
tiff appeals.    Afllrmed. 

Joe  Klrby,  for  appellant  Bailey  &  Voor^ 
hees  and  Aikena  &  Judge,  for  respondent 

WHITING,  J.  This  action  was  brought 
by  plaintiff  and  appellant  to  recover  of  the 
defendant  and  respondent  upon  a  policy  of 
insurance,  in  the  sum  of  $5,000,  Issued  by 
defendant  to  Milton  W.  Miles,  and  payable 
to  his  wife,  the  plaintiff  herein.  Said  policy 
contained  a  provision  whereby  in  case  of 
suicide  of  insured  within  a  period  of  one 
year  from  its  date  the  liability  of  the  de- 
fendant should  be  limited  to  the  amount  of 
premium  paid  thereon.  After  having  paid 
premium  to  the  amount  of  $72  and  within 
one  year  from  date  of  policy  the  said  Mil- 
ton W.  Miles  died.  The  defense  was  that 
the  insured  committed  suicide,  and  the  sole 
Issue  on  the  trial  was  this  question  of  wheth- 
er deceased  came  to  his  death  by  suicide. 
The  Jury  returned  the  following  verdict: 
"We,  the  Jury,  In  the  above-entitled  action, 
find  all  the  Issues  in  favor  of  the  plaintiff, 
and  assess  her  damages  at  the  sum  of  sev- 
enty-seven dollars."  Plaintiff  excepted  to 
this  verdict  on  the  ground  that  It  was  con- 
tradictory, in  that  it  finds  on  the  Issue  of 
suicide  against  the  defendant  and  then  as- 
sesses plaintiff's  damages  at  only  $77,  when 
she  claims  she  would  be  entitled  to  $5,000 
and  Interest  The  verdict  being  received 
and  Judgment  entered  thereon,  and  the  tri- 
al court  having  denied  a  new  trial,  the  plain- 
tiff brings  this  appeal,  and  assigns  several 
errors,  which  assignments  are  properly 
grouped  under  five  headings,  to  wit:  Refus- 
al to  give  certain  instructions  asked  for; 
the  giving  of  certain  Instructions  excepted 
to;  sustaining  objections  to  certain  state- 
ments made  by  plaintiff's  counsel  in  address- 
ing the  jury;  insufficiency  of  evidence  to 
sustain  verdict:  receiving  the  above  ver- 
dict over  plaintiff's  exception. 

Plaintiff    asked    for   certain   instructions 


'For  other 


■M  Mun*  topic  and  laction  NUMBEH  Is  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 

Digitized  by  VjOOQ  IC 


250 


122  NORTHWESTERN  RBPORTBR. 


(S.D- 


which  were  certainly  proper  in  tbemselves 
and  stated  correct  legal  proposltiona  appli- 
cable to  the  case  at  bar,  bat  Inasmuch  aef 
the  Instructions  asked  are  fully  covered  by 
those  given,  with  the  exception  of  one  clanse, 
and  which  clause  we  do  not  think  material  In 
view  of  other  Instructions  given,  the  plaintiff 
could  not  possibly  have  been  prejudiced  by 
the  court's  refusal  to  give  the  instructions 
In  the  words  as  asked  for  by  plaintiff. 

The  plaintiff  complains  that  certain  in- 
structions given  by  the  court  were  contra- 
dictory, also,  that  they  were  argumentative 
In  their  nature,  and  that  they  tended  to  pre- 
sent the  defendant's  theories  while  with- 
holding those  of  plaintiff  and  that  from  such 
Instructions  the  Jury  would  gather  the  views 
of  the  court  as  to  the  facts.  We  do  not 
feel  it  proper  to  incumber  this  opinion  with 
a  full  statement  of  the  instructions  given, 
but  to  us  they  seem,  imder  the  Issue  in  this 
case  and  evidence  that  had  been  received 
thereon,  to  be  very  fair  to  both  parties. 

In  addressing  the  Jury  platntifT's  counsel 
departed  from  a  discussion  of  the  evidence 
In  a  couple  of  instances,  defendant's  coun- 
sel objected  to  bis  statements,  and  the  court 
ruled  with  defendant,  cautioning  plalntiflTs 
counsel  as  to  his  line  of  argument  We  do 
not  see  anything  in  the  statements  that 
could  have  been  very  dangerous  to  the  de- 
fense, yet  they  certainly  were  subject  to  ob- 
jection, and  plaintiff  cannot  complain  be- 
cause the  trial  court  disapproved  of  same. 

The  plaintiff  strenously  contends  that  the 
evidence  received  was  insufficient  to  prove 
that  the  deceased  committed  suicide.  The 
evidence  is  quite  voluminous,  and  no  useful 
purpose  could  be  subserved  by  statement  of 
.same.  To  us  it  seems  to  admit  only  of  the 
conclusion  that  deceased  killed  himself,  and 
we  cannot  conceive  how,  under  this  evi- 
dence, any  Juror  could  have  the  slightest 
doubt  as  to  what  his  verdict  should  be. 

The  most  Important  question  in  this  casp 
arises  from  the  wording  of  the  verdict,  but. 
when  we  consider  the  only  issue  in  this 
case,  together  with  the  whole  record,  we  be- 
lieve the  trial  court  was  Justified  In  receiv- 
ing the  verdict  and  entering  Judgment  there- 
on. The  trial  court  gave  the  following  as  a 
part  of  its  Instructions:  "Gentlemen  of  the 
jury,  take  this  case  fairly  and  honestly,  an<'' 
very  carefully  consider  the  evidence  submit- 
ted to  you,  and  determine  the  question:  Did 
Mr.  Miles  intentionally  take  his  own  life? 
If  you  find  that  he  did,  your  verdict  should 
be  for  the  defendant  If  you  find  that  he 
did  not  then  your  verdict  should  be  for 
the  plaintiff.  If  you  find  for  the  plaintiff, 
she  will  be  entitled  to  recover  the  sum  of 
$•'5,000,  with  Interest  at  7  per  cent  from 

the .    [Counsel  agree  as  to  the  amount 

of  Interest]  If  you  find  in  favor  of  the  de- 
fendant— that  is,  that  Mr.  Miles  came  to 
his  death  by  suicide — then  the  plaintiff  will 
be  entitled  to  recover  only  the  amount  of 
the  first  premium  paid  by  the  assured,  with 


added  InterMt  thereon.  Verdicts  will  be 
sent  out  with  yon  to  cover  the  conditions 
of  either  state  of  facts,  as  you  may  find 
them." 

Take  this  Instruction  as  a  whole,  and  it 
directs  the  Jurors  that  If  they  find  the  de- 
ceased committed  suicide  their  verdict  should 
be  for  the  plaintiff  for  the  $72  and  interest; 
and,  in  case  they  did  not  so  find,  their  ver- 
dict should  be  for  the  plaintiff  for  $5,000 
and  interest  We  think  we  can  fairly  pre- 
sume, in  view  of  the  words  of  the  instruc- 
tions, that  two  verdlcta  fully  written  out 
were  sent  out  with  the  Jury,  and  that  in  se- 
lecting the  one  providing  damages  in  the  sum 
of  $77  they  paid  no  attention  to  the  recital 
"all  the  issues";  but  even  presuming  that 
the  Jury  wrote  out  its  own  verdict  and  put 
In  these  words,  yet  under  the  circumstances, 
they  cannot  be  controlling.  Can  there  be 
the  slightest  question  whatever  as  to  the 
Intent  of  the  Jury?  Is  It  possible  for  one  to 
doubt  that  the  Jury  found  the  Issue  of  sui- 
cide in  favor  of  the  defense?  Suppose  there 
had  been  a  general  verdict  in  favor  of  the 
plaintiff  for  $5,000  and  a  special  findlnir  that 
deceased  committed  suicide,  the  special  find- 
ing would  control -and  Judgment  enter  ac- 
cordingly. The  verdict  as  rendered  was,  to 
our  mind,  as  certain  in  favor  of  defense  on 
question  of  suicide  as  a  direct  finding  could 
have  been.  Plaintiff  has  cited  several  cases, 
but  we  think  they  can  readily  be  distinguish- 
ed from  the  case  at  bar.  We  have  care- 
fully considered  all  of  these  anthorltles,  and 
find  none  which  in  any  way  apply  to  the 
proposition  before  the  court  which  prop- 
osition to  onr  mind  is  simply  whether  or 
not  from  the  verdict  as  rendered  in  con- 
nection with  the  issue  before  said  Jury  and 
instruction  of  the  court  it  can  be  ascertain- 
ed without  question  what  the  decision  of 
the  Jury  was  upon  the  Issue  before  them. 
In  the  case  of  Leftwich  v.  Day  (Minn.)  21 
N.  W.  731,  the  court  said:  "Verdicts  are 
to  have  a  reasonable  intendment  and  receive 
a  reasonable  construction,  and  are  not  to 
be  avoided  unless  for  necessity.  However 
Informal,  a  verdict  is  good  if  the  finding  of 
the  matter  in  issue  may  be  concluded  from 
it  and  the  court  can  clearly  understand  it." 
This  same  legal  proposition  has  been  ad- 
vanced In  this  court  in  the  cases  of  Kelsey 
V.  O.  &  N.  W.  Ry.  Co.,  1  S.  D.  80,  45  N.  W. 
204,  and  Jeansch  v.  Lewis,  1  S.  D.  609,  4S 
N  W.  128.  While  the  facts  in  none  of  these 
cases  are  similar  to  what  we  find  in  the 
case  at  bar,  yet  we  think  the  legal  proposi- 
tion laid  down  in  these  cases  is  clearly  ap- 
plicable to  the  situation  In  this  case,  and, 
when  we  apply  the  same  to  this  case,  the 
Judgment  of  the  lower  court,  must  be  af- 
firmed. 

It  is  therefore  ordered  that  the  Judgment 
of  the  trial  court  and  order  denying  a  new 
trial  be,  and  the  same  are,  affirmed. 

HANEY,  P.  X,  dissents. 


Digitized  by  VjOOQIC 


Minn.) 


COOEE  ▼.  IVERSON. 


251 


OOOKB  T.  IVERSON,  State  Andltor. 
{Snpreme  Coart  of  Minneiota.    July  9,  1009.) 
1-  ConsnTunoRAi.  Law  (|  78*)— Distribu- 

TIOR      OF     OOVEBNMENTAL     POWXBB  —  EN- 
CBOACiUIKHT  OR   EJXECtmVX. 

Courts  cannot,  by  injunction,  mandamos, 
or  other  process,  control  or  direct  the  head  oi 
the  executive  department  of  the  state  In  the 
duchaiKe  of  any  executive  duty  involving  the 
exercise  of  his  discretion;  but  where  duties 
purely  ministerial  in  diaracter  are  conferred 
upon  the  chief  executive,  or  any  member  of  the 
executive  department,  as  defined  by  oar  Con- 
stitution, and  he  refuses  to  act,  or  where  he 
aasnmes  to  act  in  violation  of  the  Constitution 
and  laws  of  the  state,  he  may  be  compelled  to 
act  or  restrained  from  acting,  as  the  case  may 
be,  at  the  suit  of  one  who  is  injured  thereby  in 
his  person  or  bis  property,  for  which  he  has  no 
other  adequate  remedy. 

[Ed.  Note.— For  other  cases,  see  Constitu- 
tional Law.  Cent.  Dig.  {|  134-137;  Dec.  Dig. 
{  73.*] 

2.  States   (§    119*)  —  APPBOPBlATloua  —  Ew- 

eAQIRO       IN       INTXSNAI.       IlfPBOVEMEHTS  — 
"WOKKS  or  INTEBRAI,  lUFBOVEVENT." 

Chapters  91.  505,  pp.  82,  638,  Laws  1909, 
jmrporting  to  appropriate  money  out  of  the 
general  revenue  fund  of  the  state  for  the  build- 
ing and  repairing  of  roads  and  bridges,  are  un- 
constitutional, for  the  reason  that  they  violate 
section  5.  art.  9,  of  the  state  Constitution,  for- 
bidding tne  state  to  be  a  party  to  the  carrying 
on  of  "woiks  of  internal  improvement,"  and  sec- 
tion 16,  art.  9,  prescribing  the  manner  and  lim- 
iting the  extent  of  state  aid  in  the  construc- 
tion of  public  highways  and  bridges. 

[Ed.  Note.— For  other  cases,  see  States,  Dec. 
Dig.  {  119.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Ramsey  Coun- 
ty;  Hascal  R.  Brill,  Judge. 

Action  by  L.  A.  Cooke  against  Samuel  O. 
Iverson,  State  Auditor.  From  an  order  over- 
rollug  a  demurrer  to  the  complaint,  defend- 
ant appeals.    Affirmed. 

George  T.  Simpson  and  Lyndon  A.  Smith, 
for  appellant  W.  B.  Douglas,  for  respond- 
ent 

START,  O.  J.  This  action  was  brought 
in  the  district  court  of  the  county  of  Ram- 
sey to  enjoin  the  defendant,  as  State  Auditor, 
from  Issuing  any  warrants,  payable  out  of 
the  general  revenue  fund  of  the  state,  pur- 
suant to  chapter  91,  p.  82,  and  chapter  505, 
p.  638,  of  the  Laws  of  1909.  The  defendant 
demurred  to  the  complaint  and  appealed 
from  an  order  overruling  his  demurrer.  The 
record  presents  two  constitutional  questions 
for  our  decision. 

1.  The  first  one  la  whether  this  action  can 
be  maintained  against  the  State  Auditor. 
This  involves  a  consideration  of  the  general 
proposition  whether  the  Judiciary  has,  in 
tny  case.  Jurisdiction  to  control  or  direct 
the  chief  executive,  or  any  of  the  other  of- 
flcera  constituting  the  executive  department 
of  the  state,  as  defined  by  article  6,  f  1,  of 
the  state  Constltntlon.  Judicial  decisions  on 
this  question  in  the  different  states  are  In 


hopeless  conflict  Nor  are  the  decisions  of 
our  own  court  relevant  to  the  subject  en- 
tirely consistent  This  has  resulted  In  some 
uncertainty  as  to  what  the  rule  Is  In  this 
state,  which  ought  to  be  set  at  rest  It  is 
settled  beyond  all  controversy  that  courts 
cannot  by  Injunction,  or  mandamus,  or  oth- 
er process,  control  or  direct  the  head  of  the 
ezecutlTe  department  of  the  state  in  the  dis- 
charge of  any  executive  duty  involving  the 
exercising  of  his  discretion.  This  necessa- 
rily follows  from  the  constitutional  division 
of  the  state  government  into  three  co-ordi- 
nate, distinct,  and  independent  branches — 
legislative,  executive,  and  judicial.  Neither 
is  responsible  to  the  other  for  the  manner 
In  which  it  exercises  Its  discretion  in  the 
performance  of  duties  which  are  govern- 
mental or  political  in  their  character.  Thus 
far  there  Is  no  conflict  of  judicial  authority. 
The  conflict  arises  upon  the  question  wheth-  - 
er  the  rule  stated  is  subject  to  the  qualifica- 
tion that  where  duties  porely  ministerial  In 
character  are  conferred  upon  the  chief  execu- 
tive, and  he  refuses  to  act,  or  when  he  as- 
sumes to  act  in  violation  of  the  Constitution 
and  laws  of  the  state,  he  may  be  compelled 
to  act  or  restrained  from  acting,  as  the  case 
may  be,  by  the  courts  at  the  suit  of  one  In- 
jured thereby  in  his  personal  or  property 
rights,  for  which  he  has  no  other  adequate 
remedy. 

This  court,  in  the  case  of  Chamberlain  t. 
Sibley,  4  Minn.  309  (OIL  228),  recognized  this 
exception  to  the  general  rule  of  the  immunity 
of  the  chief  executive  from  Judicial  process, 
and  stated  the  rule  and  the  exception  in  these 
words:  "This  court  will  not  nndertalte  to 
compel  the  Governor  of  the  state  to  the  per- 
formance of  any  duty  devolving  upon  him  as 
the  chief  executive,  and  properly  pertaining 
to  such  office.  In  all  such  matters  the  execu- 
tive Is  of  necessity  independent  of  the  Judi- 
ciary. But  when  some  official  act  iiot  nec- 
essarily pertaining  to  the  duties  of  the  execu- 
tive of  the  state,  and  which  might  be  per- 
formed as  well  by  one  officer  as  another.  Is 
directed  by  law  to  be  done,  then  any  per- 
son who  clearly  shows  himself  entitled  to  its 
performance,  and  has  no  other  adequate 
remedy,  may  have  a  writ  of  mandamus 
against  such  officer,  even  although  the  law 
may  have  designated  the  chief  executive  of 
the  state  as  a  convenient  officer  to  perform 
the  duty."  In  Rice  v.  Austin,  19  Minn.  103 
(Gil.  74)  18  Am.  Rep.  830,  the  court  without 
referring  to  the  case  of  Chamberlain  v.  Sib- 
ley, held.  In  efTect  that  the  rule  that  the 
courts  could  not  enforce  the  performance  of 
official  duties  by  the  Governor  Included  du- 
ties of  a  purely  ministerial  character  Involv- 
ing no  discretion.  The  duty  sought  to  be  en- 
forced In  that  case  was  not  purely  a  ministe- 
rial one,  and  what  was  said  as  to  such  du- 
ties was  not  necessary  to  the  decision.  The 
case  of  Rice  ▼.  Austin  was  followed  In  the 


•Por  otliar  cases  ue  uum  topic  and  lectlon  NUMBER  Id  Dec.  ft  Am.  Diga.  1907  to  date,  &  Reporter  Indsxes 


Digitized  by 


L-oogle 


262 


122  NORTHWESTERN  BEPOBTEB. 


(Minn. 


case  of  State  y.  Dike,  20  Minn.  363  (OIL  814), 
and  It  was  held  that  the  rule  Included  all  of 
the  ofBcera  named  In  article  6,  i  1,  of  the 
state  Constitution,  which  provides  that :  "The 
executive  department  shall  consist  of  a  Qov- 
emor.  Secretary  of  State,  Auditor,  Treasur- 
er, and  Attorney  General."  It  was  again 
broadly  stated  In  Western  By.  Co.  v.  De 
GrafT  et  al.,  27  Minn.  1,  6  N,  W.  841,  fol- 
lowing the  cases  we  have  referred  to,  that 
no  act  done  or  threatened  to  be  done  by  any 
member  of  the  executive  department  of  the 
state.  In  his  official,  but  not  in  his  Individual, 
capacity,  could  be  brought  under  Judicial  con- 
trol or  Interference,  even  where  such  acts 
were  purely  ministerial  in  their  character. 
The  duties  enjoined  upon  the  Governor  un- 
der consideration  in  that  case  were  not  min- 
isterial in  their  character,  but  involved  the 
exercise  of  discretion  oo  Us  part  The  rule, 
without  the  qualification  as  to  purely  min- 
isterial duties,  was  stated  and  applied  to  the 
State  Auditor  In  the  cases  of  State  v.  Whit- 
comb,  28  Minn.  fiO,  8  N.  W.  902,  and  State  v. 
Braden,  40  Minn.  174,  41  N.  W.  817. 

In  the  case  of  Hayne  v.  Trust  Co.  and 
Others,  67  Minn.  246,  69  N.  W.  916,  this  court 
was  confronted  with  the  question  whether 
a  member  of  the  executive  department  of 
the  state  was  subject  to  judicial  control  as 
to  purely  ministerial  duties.  In  that  case 
certain  securities  had  been  deposited  with 
the  State  Auditor  for  the  security  of  the 
policy  holders  by  an  insurance  company, 
which  became  insolvent,  and  for  which  a 
receiver  was  appointed.  The  receiver  de- 
manded of  the  State  Auditor  a  delivery  of 
the  securities,  to  the  end  that  they  might 
be  marshaled  for  the  benefit  of  their  real 
owners,  the  policy  holders.  The  demand 
was  refused,  and  the  action  was  brought  to 
compel  the  State  Auditor  to  comply  with  the 
demand.  He  demurred  to  the  complaint  on 
the  ground  that  the  court  had  no  jurisdiction 
over  him  as  a  member  of  the  executive  de- 
partment of  the  state.  His  contention  was 
sustained  in  the  district  court,  but  on  ap- 
peal this  court  held  otherwise,  on  the  ground 
that  the  Auditor  was  holding  the  securities. 
In  which  the  state  had  no  interest,  as  cus- 
todian, a  ministerial  duty,  and  that  in  re- 
spect to  their  disposition  he  was  subject  to 
the  Jurisdiction  of  the  courts.  In  reaching 
this  conclusion  the  court  said:  "This  court 
has  undoubtedly  gone  further  than  any  oth- 
er in  holding  executive  officers  of  the  state 
exempt  from  the  control  of  the  courte  in 
the  performance  of  their  official  duties.  This 
is  especially  true  as  to  executive  officers  oth- 
er than  Governor.  It  will  be  found,  however, 
that  in  many  of  these  cases  what  was  said 
went  further  than  what  was  decided. 
*  *  *  It  cannot  be  that  because  this 
trust  fund,  in  which  the  state  has  not  a 
dollar's  interest,  happens  to  be  in  the  pos- 
session— and  unlawfully  at  that — of  an  exec- 
utive officer  of  the  state,  be  can  refuse  to  sur- 
mnder  the  property,  continue  to  hold  it  un- 


lawfully, and  thus  deprive  the  policy  hold- 
ers of  what  belongs  to  tbem,  and  yet  the 
courts  can  give  tibem  .no  relief,  because  an 
executive  officer  of  the  state  Is  not  subject 
to  the  control  of  the  Judicial  department  of 
the  state  government" 

In  the  cases  of  Hlgglns  v.  Berg,  74  Minn. 
11,  76  N.  W.  788,  42  L.  E.  A.  245,  Davidson 
V.  Hanson,  87  Minn.  211,  91  N.  W.  1124,  92 
N.  W.  93,  and  State  v.  Hanson,  93  Minn.  178, 
100  N.  W.  1124,  102  N.  W.  209,  this  court 
entertained  proceedings  against  the  Secre- 
tary of  State  to  direct  him  with  reference 
to  the  making  up  of  the  official  state  ballote, 
as  provided  by  the  statute  (Gen.  St  1894,  f 
48).  This  the  court  clearly  could  not  have 
done  If  the  Constitution  forbade  the  control 
by  the  courta  of  any  member  of  the  executive 
department  of  the  state  in  the  discharge  of 
ministerial  duties.  These  election  cases  and 
the  case  of  Hayne  v.  Trust  Co.  necessarily 
hold  that  such  officer  may  be  controlled  by 
the  courts  in  the  discharge  of  purely  min- 
isterial duties.  They  well  Illustrate  the  ne- 
cessity and  Justice  of  such  controL  If  the 
action  or  nonaction  of  the  Secretary  of  State 
in  making  up  the  official  ballots  is  beyond 
the  control  of  the  courts,  because  the  statute 
giving  courts  jurisdiction  in  such  cases  is 
unconstitutional,  then  he  has  the  absolute 
power,  practically,  to  say  for  whom  the  elec- 
tors may  or  may  not  vote.  Such  a  proposi- 
tion is  an  unthinkable  one;  for,  as  said  by 
this  court  in  McConaughy  v.  Secretary  of 
State,  106  Minn.  416,  119  N.  W.  417:  "Ev- 
ery officer  under  a  constitutional  government 
must  act  according  to  law  and  subject  to  its 
restrictions,  and  every  departure  therefrom 
or  disregard  thereof  must  subject  him  to  the 
restraining  and  controlling  power  of  the 
people,  acting  through  the  agency  of  the 
judiciary;  for  it  must  be  remembered  that 
the  people  act  through  the  courte,  as  well 
as  through  the  executive  or  the  Legislature. 
One  department  is  just  as  representative  aa 
the  other,  and  the  Judiciary  is  the  depart- 
ment which  is  charged  with  the  special  duty 
of  determining  the  limitations  which  the 
law  places  upon  all  official  action." 

If  a  member  of  the  executive  department 
of  the  state  Is  subject  to  the  control  of  the 
judiciary  In  the  discharge  of  purely  ministe- 
rial duties.  It  logically  follows  that  he  la 
subject  to  such  direction  if  he  is  threaten- 
ing to  execute  an  unconstitutional  statute, 
to  the  Irreparable  injury  of  a  party  in  his 
person  or  property.  Rlppe  v.  Becker,  66 
Minn.  100,  57  N.  W.  331,  22  L.  R.  A.  857.  If 
a  statute  be  unconstitutional  it  is  as  if  it 
never  had  been.  Rights  cannot  be  built  up 
under  it  and,  if  an  executive  officer  at- 
tempts to  enforce  it  his  act  is  his  individu- 
al and  not  his  official  act  and  he  la  subject 
to  the  control  of  the  courte  as  would  be  a 
private  individual.  Cooley's  Constitutional 
Limitations,  250;  Ex  parte  Young,  200  U.  S. 
123,  28  Sup.  Ct  441,  62  L.  Ed.  714.  Upon 
principle,  and  a  full  consideration  of  the 


Digitized  by  VjOOQ  l€ 


Minn.) 


OOOKE  V.  lYBBSON. 


253 


preTloua  declalona  of  this  court  relevant  to 
tbe  question,  we  hold  that:  Courts  cannot, 
by  Injunction,  or  mandamus,  or  other  pro- 
cess, control  or  direct  the  bead  of  the  ez- 
«cutlye  department  of  the  state  In  the  dis- 
charge of  any  executive  duty  Involving  the 
exercise  of  bis  discretion;  but  where  duties 
pnrely  ministerial  In  character  are  conferred 
upon  tbe  chief  executive,  or  any  member  of 
the  executive  department,  as  defined  by  our 
Constitution,  and  be  refuses  to  act,  or  when 
he  assumes  to  act  in  violation  of  the  Con- 
stitution and  laws  of  the  state,  be  may  be 
compelled  to  act,  or  restrained  from  acting, 
as  the  case  may  be,  by  the  courts  at  the 
snlt  of  one  who  Is  injured  thereby  In  his 
perscMi  or  property,  for  which  he  has  no  otb- 
«r  adequate  remedy. 

It  follows  that  the  district  court  had  Ju- 
risdiction of  the  State  Auditor  In  this  case 
for  tbe  purpose  of  determining  the  constitu- 
tionality of  tbe  statutes  be  was  threatening 
to  execute,  and  to  restrain  him  If  they  were 
found  to  be  unconstitutional. 

2.  This  brings  us  to  a  consideration  of  tbe 
«e<^nd  question,  tbe  constitutionality  of 
chapters  91  and  505  of  tbe  I/aws  of  1909. 
Chapter  91  purports  to  appropriate  the  sum 
«f  $300,000  annually  out<of  the  general  reve- 
nue fund  of  tbe  state  to  aid  in  building  and 
repairing  highways  and  bridges,  to  be  ex- 
pended In  such  places  and  under  £he  super- 
vision of  such  persons  as  the  Legislature 
may  designate.  Chapter  505  provides  for 
the  distribution  of  the  appropriation  for  the 
fiscal  years  ending  July  81,  1910  and  1911, 
respectively,  to  tbe  several  counties  of  tbe 
state  to  aid  in  tbe  construction  and  repair 
of  highways,  and  designates  the  officers  and 
persons  under  whose  supervision  the  money 
is  to  be  expended  in  each  county.  Section 
5,  art.  9,  of  our  state  Constitution,  provides 
that:  "The  state  shall  never  contract  any 
debts  for  works  of  Internal  improvement, 
or  be  a  party  in  carrying  on  such  works, 
except  In  cases  where  grants  of  land  or  oth- 
er property  shall  have  been  made  to  tbe 
state,  especially  dedicated  by  grant  to  spe- 
cific purposes;  and  in  such  cases  the  state 
shall  devote  thereto  the  avails  of  such  grants 
and  may  pledge  or  appropriate  tbe  revenues 
derived  from  such  works  in  aid  of  their 
■completion."  It  may  be  fairly  Inferred  that 
the  exception  in  this  section  refers  to  grants 
of  land  or  other  property  made  by  Congress 
to  tbe  several  states  to  aid  In  works  of  In- 
ternal Improvement 

In  1872,  section  82b,  art.  4,  of  tbe  Con- 
stitution was  adopted  (Laws  1872,  p.  62,  c. 
14,  I  1),  providing  for  the  sale  of  all  lands 
-donated  to  the  state  under  the  act  of  Con- 
gress approved  September  4,  1841  (Act  Sept 
4,  1841,  c.  16,  5  Stat.  463),  to  be  anpUed  "to 
-objects  of  internal  Improvement,  •  •  • 
iukmely,  roads,  railways,  bridges,  canals,  and 
improvements  of  water  courses  and  drain- 
age of  swamps,"  and  that  the  money  arising 
from  such  sale  should  constitute  the  internal 


Improvement  land  fund  which  should  not  be 
appropriated  for  any  purpose  whatever  with- 
out tbe  approval  of  tbe  electors  of  the  state. 
In  1898  (Laws  1897,  p.  600,  c.  333)  provision 
was  made  by  an  amendment  to  the  Consti- 
tution (section  16,  art  9)  for  the  appropria- 
tion of  this  fund  to  the  improvement  of  pub- 
lic highways  and  bridges  by  transferring  it 
to  the  road  and  bridge  fund,  and  for  the  in- 
crease of  that  fund  by  a  limited  tax  upon 
all  the  property  of  the  state.  The  provi- 
sions of  section  16  are  as  follows:  "For  the 
purpose  of  lending  aid  in  tbe  construction 
and  Improvement  of  public  highways  and 
bridges  there  is  hereby  created  a  fund  to  be 
known  as  tbe  'State  Road  and  Bridge  Fund' 
Said  fund  shall  include  all  moneys  accruing 
from  the  Income  derived  from  investments  in 
the  Internal  improvement  land  fund  or  that 
may  hereafter  accrue  to  said  fund,  and  shall 
also  include  all  funds  accruing  to  any  state 
road  and  bridge  fund  however  provided. 
Tbe  Legislature  is  authorized  to  add  to  such 
fund  for  the  purpose  of  constructing  or  Im- 
proving roads  and  bridges  of  this  state  by 
providing  In  its  discretion  for  an  annual 
tax  levy  upon  tbe  property  of  this  state, 
of  not  to  exceed  in  any  one  year  one-twen- 
tieth of  one  mill  on  all  the  taxable  property 
within  the  state.  Tbe  Legislature  is  also 
authorized  to  provide  for  the  appointment 
by  tbe  Governor  of  the  state  of  a  board  to 
be  known  as  the  'State  Highway  Commis- 
sion' consisting  of  three  members,  who  shall 
perform  such  duties  as  shall  be  prescribed 
by  law,  without  salary  or  compensation  oth- 
er than  their  personal  expenses.  Such  com- 
mission shall  have  general .  superintendence 
of  state  roads  and  bridges  and  shall  use 
such  fund  in  tbe  construction  thereof  and 
distribute  the  same  In  tbe  several  counties 
in  tbe  state  upon  an  equitable  basis.  Pro- 
vided further,  that  no  county  shall  receive 
in  any  one  year  more  than  3  per  cent  or 
less  than  one-half  of  1  per  cent  of  tbe  total 
fund  thus  provided  and  expended  during 
such  year;  and  provided  further,  that  no 
more  than  one-third  of  such  fund  accruing 
in  any  year  shaU  be  expended  for  bridges, 
and  in  no  case  shall  more  than  one-third  of 
the  cost  of  constructing  or  improving  any 
road  or  bridge  be  paid  by  the  state  from 
such  fund."  This  section  16  was  amended 
in  1906  (Laws  1906,  p.  280,  c.  212)  by  omit- 
ting the  provision  for  a  State  Highway  Com- 
mission, and  the  one  limiting  the  amount 
that  might  be  expended  for  bridges  in  any 
year,  and  by  increasing  the  authorized  tax 
levy  for  tbe  construction  and  repair  of  roads 
and  bridges  to  one-fourth  of  a  mill. 

It  is  a  significant  fact  that  from  the  adop- 
tion of  our  Constitution  to  tbe  year  190T. 
with  only  sporadic  exceptions  (see  Sp.  Laws 
1868,  p.  446,  c.  140),  no  appropriations  were 
made  from  the  general  revenue  fund  of  the 
state  for  tbe  construction  or  repair  of  roads 
and  bridges,  but  that  all  appropriations  for 
such  purpose  were  made  from  funds  accru- 


Digitized  by  VjOOQ  l€ 


264 


122  NORTHWESXEBN  RBPORIEB. 


(Mlpn. 


ing  from  grouts  of  land  and  other  property 
donated  to  the  state  in  aid  of  works  of  Inter- 
nal improvement  within  the  state;  or,  in 
other  words,  for  nearly  half  a  centnry  after 
the  adoption  of  the  Constitution  the  work  of 
constructing  and  repairing  of  roads  and 
bridges  was  left  to  the  counties,  towns,  and 
other  municipalities  of  the  state,  as  was  the 
case  when  the  Constitution  was  framed  and 
adopted.  This  practical  construction  of  sec- 
tion 5,  art  9,  of  the  Constitution  and  the 
subsequent  amendments  we  hare  referred 
to  are  entitled  to  great  weight  in  consider- 
ing the  validity  of  the  statutes  here  in  ques- 
tion. It  is  obvious  from  a  mere  reading  of 
section  5  that  if  the  term  "works  of  internal 
Improvement,"  used  therein,  includes  public 
roads  and  bridges,  the  statutes  are  void,  for 
they  make  the  state  a  party  in  carrying  on 
a  work  of  internal  Improvement  which  is 
forbidden  by  the  Constitution.  If  one  fur- 
nishes the  money  and  directs  the  execution 
of  an  enterprise,  he  is  a  party  In  carrying  it 
on.  Now,  when  our  Constitution  was  fram- 
ed and  adopted,  the  term  "works  of  internal 
improvement"  was  well  understood  by  the 
people,  statesmen,  and  jurists  to  Include, 
whatever  else  was  embraced  therein,  the 
construction  of  public  highways.  Rlppe  t. 
Becker,  56  Minn.  112,  57  N.  W.  331,  22  L. 
R.  A.  857.  This  proposition  Is  substantially 
conceded  by  the  Attorney  General  in  his 
brief  in  these  words:  "It  therefore  clearly 
appears  that  the  words  'wwks  of  internal 
Improvement' — at  least  in  the  general  sig- 
nification of  the  same — originally  did  in- 
clude, not  only  those  works  in  which  the 
state  might  and  did  engage  for  profit  or  loss, 
but  also  included  the  ordinary  paths  of  in- 
tercourse, commonly  known  as  the  'public 
highways.'"  It  Is,  however,  his  contention, 
in  effect,  that  the  words  in  which  the  pro- 
hibition was  expressed  were  not  used  in 
their  broad  signification,  and  that  It  was  not 
Intended  to  Include  therein  free  public  high- 
ways. 

The  pivotal  question  then  Is:  Can  the 
language  of  this  constitutional  prohibition  be 
fairly  construed  as  excepting  therefrom  the 
building  by  the  state  of  free  highways.  In- 
cluding bridges?  If  It  can  be.  It  Is  our  duty 
so  to  construe  It  But  it  cannot  be  assumed 
that  ttie  framers  of  the  Constitution  and 
the  people  who  adopted  it  did  not  intend 
that  which  is  the  plain  import  of  the  lan- 
guage used.  When  the  language  of  the  Con- 
stitution is  positive  and  free  from  all  ambi- 
guity, courts  are  not  at  liberty,  by  a  resort  to 
the  refinements  of  legal  learning,  to  restrict 
its  obvious  meaning  to  avoid  the  hardships 
of  particular  cases.  We  must  accept  the 
Constitution  as  It  reads  when  its  language  is 
unambiguous,  for  it  is  the  mandate  of  the 
sovereign  power.  State  t.  Sutton,  63  Minn. 
147,  65  N.  W.  262,  30  It.  R.  A.  630,  56  Am. 
St.  Rep.  459;  LIndberg  t.  Johnson,  83  Minn. 
•Ml,  101  N.  W.  74.  Is  there  any  ambiguity 
in  the  language  of  the  prohibition  in  sec- 


tion 5  which  will  Justify  us  In  reading  into 
It  by  construction  an  exception  of  free  pub- 
lic highways?  There  Is  none,  for  the  com- 
mon and  approved  usage  of  the  words  used 
Included  them.  Again,  the  framers  of  the 
Constitution  were  cautious,  and  they  consid- 
ered the  exceptions  that  ought  to  be  made  to 
the  general  prohibition,  and  they  made  one. 
and  only  one,  namely:  "The  cases  where 
grants  of  land  or  other  property  shall  have 
been  made  to  the  state  especially  dedicated 
by  grant  to  specific  purposes."  The  express 
mention  of  one  thing  Implies  the  exclusion 
of  another.  It  is  true,  as  suggested  by  coun- 
sel for  .the  defendant,  that  the  framers  of 
the  Constitution  knew  that  free  public  high- 
ways were  an  absolute  necessity,  and  that 
an  intention  to  prohibit  their  construction 
and  repair  at  the  public  charge  cannot  be 
imputed  to  them.  But  it  cannot  be  Inferred 
from  this  that  the  intention  was  that  the 
state  should  be  a  party  to  this  work  of  in- 
ternal improvement,  for  it  was  then  bein;; 
carried  on  by  and  at  the  charge  of  the  towns 
and  counties  of  the  state,  pursuant  to  the 
then  existing  statutes,  which  were  contin- 
ued In  force  by  the  Constitution  until  altered 
or  repealed  by  the  Legislature.  Again,  coun- 
ties and  towns  were  given,  by  section  5  of 
article  11  of  the  Constitution,  such  powers  of 
local  taxation  as  might  be  prescribed  by  law. 
It  is  true  that  towns  and  counties  are  mere 
governmental  subdivisions;'  but  it  does  not 
follow  from  this  concession  that  if  the  state 
is  Itself  prohibited  from  engaging  in  the 
work  of  building  and  repairing  public  high- 
ways, the  Legislature  cannot  grant  the  towns 
and  counties  the  power  to  do  so. 

The  sense  of  the  need  and  the  wisdom  of 
local  self-government  was  strong  at  the  time 
the  Constitution  was  framed,  and  It  Is  quite 
clear  from  the  provisions  of  the  Constitu- 
tion and  the  statutes  to  which  we  have  re- 
ferred that  It  was  the  purpose  to  continue 
the  town  and  county  system  of  public  high- 
ways. It  was  expressly  decided  by  this 
court  in  Davidson  v.  Ramsey  Co.  Com'rs,  18 
Minn.  482  (GU.  432),  that  the  prohibition  of 
section  5,  art  9,  of  the  Constitation  did 
not  include  towns  and  counties,  and  in  do- 
ing so  said:  "It  is  sufficient  to  say  that  the 
prohibition  is,  in  terms,  expressly  confined 
to  the  state,  and  does  not  extend  to  cities. 
counties,  and  towns.  •  •  •  There  are 
obvious  reasons  why  the  people  might  see  fit 
to  deny  to  the  state  at  large  authority  in 
this  respect  which  they  would  not  withhold 
from  counties,  cities,  and  towns.  This  would 
be  but  one  more  Illustration  of  the  familiar 
fact  that  the  people  have  a  great  deal  more 
confidence  In  themselvea,  as  personal  man- 
agers of  public  affairs  near  at  home,  than  in 
the  delegated  management  of  the  same  by 
their  representatives  at  a  distance." 

The  amendment  to  the  Constitution  In 
1888  (section  16,  art  9)  Is  a  recognition  that 
free  public  highways  were  not  excepted 
from  the  prohibition  of  section  5;  for,  if  the 


Digitized  by  VjOOQ  l€ 


MUUO.) 


STATE  ▼.  N0LAI7. 


255 


problbitlon  did  not  Include  free  public  bigh- 
'Ways,  then  the  state  had  a  free  hand,  and 
might  Itself  aid  In  their  construction  and  re- 
pair to  any  extent  the  Legislature  might 
deem  wlae.  If  such  were  the  case,  there 
vrsia  no  necessity  for  the  amendment.  It  Is 
manifest  on  the  face  of  this  amendment  that 
Its  purpose  was  to  authorize  the  state  to  aid 
In  the  construction  of  highways  and  bridges 
by  a  tax  levy  upon  all  the  taxable  property 
of  the  state  to  the  extent  of  one-twentieth 
of  one  mill,  which  was  increased  by  the 
amendment  of  1906  to  one-fourth  of  a  mill. 
This  amendment  determines  the  manner  In 
which  the  state  Itself  may  aid  In  the  work 
of  constructing  and  Improving  public  high- 
ways, and  fixes  the  limit  of  general  taxation 
for  such  purpose.  The  manner  cannot  be 
changed  nor  the  limitation  enlarged  by  con- 
struction. If  there  was  any  fair  doubt  as 
to  the  prohibition  of  the  state  by  section  5 
to  aid  in  the  building  of  public  highways,  it 
was  put  at  rest  by  section  16. 

It  was  suggested  on  the  argument  of  this 
case,  but  not  In  the  brief  of  defendant's 
counsel,  that  this  amendment  (section  10) 
is  void,  because  it  is  a  violation  of  the  state's 
contract  with  the  federal  government  The 
act  of  Congress  authorizing  the  formation 
of  a  state  government,  the  enabling  act  (Act 
Feb.  26,  1857.  c.  60,  11  Stat  167),  by  section 
5,  provided  that  5  per  centum  of  the  net  pro- 
ceeds of  the  sale  of  public  lands  lying  with- 
in the  state  should  be  paid  to  the  state  for 
the  purpose  of  making  public  roads  and  in- 
ternal improvements  as  the  Legislature 
should  direct  The  donation  and  condition 
were  accepted  by  the  adoption  of  the  state 
Constitution.  It  is  urged  that  the  amend- 
ment (section  16)  devotes  the  whole  of  the 
fond  arising  from  the  sale  of  public  lands  to 
public  roads,  to  the  exclusion  of  other  in- 
ternal improvements,  and,  further,  that  it 
takes  the  control  of  the  fund  from  the  Leg- 
islature. We  have  no  occasion  to  construe 
the  provisions  of  the  enabling  act  referred 
to,  or  determine  whether  the  state  has  kept 
faith  with  the  general  government;  for  it 
will  be  time  enough  for  the  proper  tribunal 
to  consider  that  question  when  the  federal 
government  makes  complaint.  We  are  here 
only  concerned  with  the  question  of  the  ef- 
fect of  section  16  on  the  right  of  the  Legis- 
lature to  appropriate  money  raised  by  gener- 
al taxation  to  the  building  and  repair  of  pub- 
lic highways,  which  is  purely  a  state  mat- 
ter. 

We  hold  that  free  public  highways  are  in- 
cluded In  the  prohibition  contained  in  sec- 
tion S,  art  9,  of  our  Constitution,  to  the  ef- 
fect that  the  state  shall  not  be  a  party  to 
the  carrying  on  of  works  of  internal  improve- 
ment and  that  the  power  of  the  Legislature 
to  aid  In  the  construction  of  such  highways 
by  appropriating  moneys  raised  by  a  gen- 
eral tax  levy — that  is,  from  the  general  rev- 


enue fund  of  the  state — Is  limited  to  the 
manner  and  the  amount  prescribed  by  sec- 
tion 16,  art  9,  of  the  Oonstltutlon,  and,  fur- 
ther, that  chapters  91  and  606,  Laws  1909, 
are  unconstitutional. 
Order  affirmed. 


STATE  ex  rel.  GREENWOOD  t.  NOLAN. 

(Supreme  Court  of  Minnesota.    June  15,  1909. 
Supplemental  Opinion,  July  9,  1909.) 

Constitutional   Law    (g|   206,   207,   230*)— 

EqTTAI.    PKOTECnON    OF    THJt    LAWS  —  PWVI- 

usGEs  AND  Immunities. 

An  ordinance  of  the  city  of  Hastings,  enact- 
ed fer  the  regulatioa  and  control  of  hawken 
and  peddlers  within  the  city,  which  discriminates 
between  resident  and  nonresident  citizens,  ex- 
pressly excluding  from  its  operation  bona  fide 
residents  of  the  city,  contravenes  both  state  and 
federal  Constitutions,  in  that  it  denies  to  the 
nonresident  citizen  the  equal  protection  of  the 
law  and  deprives  him  of  a.  privilege  and  immu- 
nity enjoyed  by  the  resident  citizen. 

[Ed.  Note. — For  other  cases,  see  Constitutional 
Law,  Cent  Dig.  H  632,  687;  Dec  Dig.  {{  206, 
207,  230.»] 

(Syllabus  by  the  Court.) 

Appeal  from  District  CJourt,  Dakota  Coun- 
ty; Wm.  C.  WilUston,  Judge. 

Application  by  the  State,  on  the  relation 
of  A.  A.  Greenwood,  for  wMt  ot  habeas  cor- 
pus to  William  Nolan.    Relator  discharged. 

Geo.  O.  Sudhelmer,  for  relator. 

PER  CURIAM.  The  court  having,  after 
due  consideration,  reached  the  conclusion 
that  the  ordinance  of  the  city  of  Hastings 
prohibiting  peddling  therein  by  nonresident 
citizens,  and  under  which  relator  was  con- 
victed and  is  now  restrained  of  his  liberty,  is 
unconstitutional  and  void,  it  Is  ordered  that 
the  order  of  the  court  below  discharging  the 
writ  of  habeas  corpus  herein  be  and  it  is 
hereby  reversed,  and  relator  discharged  from 
custody.  An  opinion  stating  reasons  for  the 
conclusion  will  be  filed  within  due  time. 

Supplemental  Opinion. 

BROWN,  J.  Relator  was  prosecuted  and 
convicted  before  the  police  Justice  of  the 
city  of  Hastings  of  peddling  therein  con- 
trary to  the  ordinances  of  the  city,  and  sen- 
tenced to  pay  a  fine  of  $15  and  costs  or 
stand  committed  to  the  dty  Jail  for  a  term 
not  exceeding  15  days.  Upon  his  refusal  to 
pay  the  fine,  he  was  committed  to  the  custody 
of  respondent  as  keeper  of  said  Jail.  He 
thereafter  sued  out  a  writ  of  habeas  corpus 
for  his  release,  which,  after  consideration 
by  the  court  below,  was  in  all  things  dis- 
charged, and  relator  remanded  to  prison.  He 
then  appealed  to  this  court. 

The  motion  of  the  Attorney  General  to 
dismiss  the  appeal  is  not  passed  upon,  for 
the  reason  that  we  are  unable   from  the 


•For  other  cue*  see  same  topic  and  section  NUMBER  io  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  Indexu 


Digitized  by  VjOOQ  l€ 


256 


122  NORTHWBSTEEN  RBPOETBR. 


(Minn. 


confused  record  to  determine  with  certainty 
tbat  his  point  is  well  taken.  The  point  U 
that  the  appeal  pnrports  to  be  from  an  or- 
der in  habeas  corpus  proceedings  In  the  dis- 
trict court  of  Dakota  county,  whereas  the 
only  such  proceeding  disclosed  by  the  record 
was  one  pending  in  the  district  court  of 
Goodhue  county.  As  suggested,  we  are  un- 
able, from  the  confusion  of  papers  contain- 
ed In  the  record,  to  determine  this  question, 
and  we  pass  it  without  fnrther  remark. 

The  record  discloses  tbat  relator  was  con- 
Tlcted  under  an  ordinance  of  the  dty  of 
Hastings,  entitled  "An  ordinance  to  license 
and  regulate  the  sale  of  merchandise  and 
other  personal  property,  by  itinerant  mer- 
chants and  transient  yendors,"  the  first 
two  sections  of  which  are  as  follows: 

"Section  1.  The  words  'itinerant  merchants 
and  transient  vendors'  shall  within  the 
meaning  of  this  ordinance  include  persons 
not  being  actnal  and  bona  fide  residents  of 
the  city  of  Hastings, '  who  sell  or  offer  to 
sell,  or  contract,  solicit  or  take  orders  for 
the  sale  by  sample  or  otherwise,  for  Imme- 
diate or  future  delivery  of  merchandise  or 
other  personal  property  to  consumers.  •  •  • 
Provided  that  this  ordinance  shall  not  ap- 
ply to  vendors  of  farm  and  garden  produce, 
nor  to  persons  soliciting  orders  from  or  sell- 
ing at  wholesale'  to  merchants  or  dealers. 

"Sec.  2.  It  shall  be  unlawful  for  Itinerant 
merchants  or  transient  vendors  as  defined  in 
section  1  of  this  ordinance  to  sell  or  offer  for 
sale,  or  contract,  solicit  or  take  orders  for 
the  sale  by  sample  or  otherwise  for  imme- 
diate or  future  delivery  of  merchandise  or 
other  personal  property  to  consumers,  within 
.  the  limits  of  the  city  of  Hastings,  without 
first  having  obtained  a  license  so  to  do." 

These  sections  are  followed  by  appropriate 
provisions  for  the  issuance  of  licenses  and 
Imposing  penalties  for  the  violation  of  sec- 
tion 2.  It  is  the  contention  of  relator  that 
the  ordinance  violates  both  the  state  and 
federal  Constitutions,  in  that  it  denies  to 
him  and  others  In  his  situation  the  equal  pro- 
tection of  the  law,  and  Is  therefore  void, 
and  his  conviction  and  imprisonment  there- 
under consequently  unlawful.  Section  2  of 
article  1  of  the  state  Constitution  declares, 
among  other  things,  tbat  no  member  of  this 
state  shall  be  deprived  of  any  of  the  rights 
or  privileges  secured  to  any  of  the  citizens 
thereof.  Section  2  of  article  4  of  the  Consti- 
tution of  the  United  States  provides  that  the 
citizens  of  each  state  shall  be  entitled  to  all 
the  privileges  and  Immunities  of  citizens  of 
the  several  states.  The  fourteenth  amend- 
ment declares  that  no  state  shall  make  or 
enforce  any  law  which  shall  abridge  the 
privileges  of  citizens  of  the  United  States, 


nor  deny  to  any  person  within  its  jurisdic- 
tion, the  equal   protection  of  the  law. 

That   the   ordinance   under  consideration 
contravenes   all    these   gnarantles    Is    quite 
clear.    There  can  be  no  controversy  respect- 
ing the  power  of  the  state,  or  of  any  of  Its 
municipal  subdivisions  upon  which  the   au- 
thority Is  conferred  by  legislation,  to  enact 
and  enforce  laws  regulating  and  controlling; 
the  business  of  hawking  and  x>cddllng;   but 
such  laws  must  be  general,  and  apply  uni- 
formly to  all  citizens,  irrespective  of   resi- 
dence.    They    must   conform    to   state    and 
federal  Constitutions,  and  not  be  based  upon 
class   distinctions,   or   deny   to  any   citizen 
the  equal  protection  of  the  law.     This   Is 
elementary,  and  requires  no  reference  to  au- 
thorities.   But  this  ordinance  does  not  meet 
the  requirements.    It  expressly  exempts  from 
Its  operation  residents  of  the  city  of  Hast- 
ings, and  applies  only  to  those  who  reside 
outside  Its  corporate  limits.    This  is  a  dis- 
crimination between  citizens  of  the  state  and 
the  United  States,  and  not  warranted.    Slm- 
Oar  ordinances  and  statutes  embodying  sub- 
stantially the  same  restrictive  operation  have 
come  before  the  courts  In  numerous  instances, 
and  have  almost  without  exception  been  de- 
clared '  unconstitutional  and  void.    State  ex 
rel.  V.  Wagener,  69  Minn.  206,  72  N.  W.  67, 
38  I*  R.  A.  677,  65  Am.  St  R^.  665;  Brown- 
back  V.  North  Wales,  194  Pa.  609,  45  Ati. 
600,  49  Ia.  R.  a.  446;  Comm.  v.  Hana,  195 
Mass.  262,  81  N.  E.  149,  11  L^  R.  A.  (N.  S.) 
799,  122  Am.  St  Rep.  251,  11  Am.  &  Eag. 
Ann.  Cas.  514;  State  v.  Whltcom,  122  Wis. 
110,  99  N.  W.  468;  GrafCty  v,  RushvUle,  107 
Ind.  502,  8  N.  E.  609,  57  Am.  Rep.  128;  Mor- 
gan V.  Orange,  50  N.  J.  Law,  389,  13  AtL  240; 
Beckett  v.  Savannah,  118  Ga.  58,  44  S.  B. 
819;  Comm.  v.  Snyder,  182  Pa.  630,  38  Atl. 
356;  City  v.  Blum,  58  Iowa,  184,  12  N.  W. 
266,  43  Am.  Rep.  116;  In  re  Camp,  88  Wash. 
303,  80  Pac.  647.    The  Wagener  Case,  supra, 
would  seem  to  settle  the  question,  so  far  as 
this  state  is  concerned,  in  harmony  with  the 
uniform     trend     of     decisions     elsewhere. 
Though   that   case   did  not  Involve  a  dis- 
crimination between  resident  and  nonresident 
citizens,  the  principle  controlling  the  deci- 
sion applies  equally  to  the  case  at  bar.    We 
follow   and  apply   It     The  question  Is  so 
clearly  settled  by  that  and  the  other  au- 
thorities cited  that  we  deem  It  wholly  un- 
necessary, a  work  of  supererogation,  to  ex- 
tend  this  opinion  by  a  further  discussion 
of  the  subject. 

The  ordinance.  In  so  far  as  discrimination 
between  resident  and  nonresident  citizens, 
Is  unconstitutional  and  void,  and  relator's 
conviction  and  Imprisonment  thereunder  un- 
lawful, and  he  is  discharged. 


Digitized  by 


Google 


MIcb.) 


DALU  V.  BRYANT  PAPER  CO. 


257 


In  n  FISCHER'S  ESTATE, 
(Supreme  Conrt  of  Michigan.     Jniy  13,  1809.) 

1.  EXECUTOBS  AWD  ADiaNISTTBATOBS  (|  601*)— 

Extra  CoifPBRaATiOR— Bvidencb— ADinssi- 

BII.ITT. 

It  is  proper  for  a  cirenlt  Jadge  piissing 
on  an  administrator's  acconnt  to  possess  him- 
self of  all  the  information  obtainable  as  to  the 
manner  of  Ills  administration  as  iiearing  on  his 
right  to  extra  compensation. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  {  2143;  Dec. 
Dig.   I  501.*] 

2.  JuBT  (§  17*)— Right  to  Jubt  Tsiait-Ap- 
PEAI.S  iv  Pbobate  Cases. 

An  allowance  to  an  administrator  for  ex- 
tra compensation  being  dependent  on  the  dis- 
cretion of  the  jndge  of  probate  nnder  Comp. 
Laws  1897,  (  9438,  providing  for  such  allow- 
ances as  he  shall  deem  reasonable,  there  was 
no  error  in  not  permitting  a  jury  trial  on  an 
appeal  from  an  order  allowing  an  administra- 
tors final  account  presenting  the  single  question 
of  the  snfSciency  of  extra  compensation  allowed. 
[Ed.  Note.— For  other  cases,  see  Jury,  Cent 
Dig.  S  97;  Dec  Dig.  |  17.*] 

3.  EXECnrOBS  and  ADIflNISTBATOBS  (S  601*)— 

ExTBA  CoHFERSATiOR  — Allowance  — DiB- 

CBETION  OF  TbIAL  COURT— REVIEW. 

Except  in  the  case  of  an  abuse  of  discre- 
tion, the  amount  of  an  allowance  of  extra  com- 
pensation for  an  administrator  Is  a  question 
for  the  trial  conrt 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  I  2147;  Dec. 
Dig.  {  501.*] 

Error  to  Circuit  Court,  Wayne  County; 
Henry  A.  Mandell',  Judge. 

In  the  matter  of  tbe  estate  of  Emma  Fisch- 
er, deceased.  From  an  order  of  the  circuit 
conrt  on  appeal  from  the  probate  court,  al- 
lowing the  final  account  of  Alexander  T. 
Fisclier,  administrator,  he  appeals.    Afiarmed. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

William  Look,  for  appellant  Russell, 
Campbell,  Bulkley  &  Ledyard,  for  appellee. 

MONTGOMERY,  J.  This  Is  an  appeal 
from  an  order  allowing  the  final  acconnt  of 
the  administrator.  The  probate  court  allow- 
ed tbe  administrator  bis  statutory  commis- 
sion of  $108.77,  and  for  extra  compensation, 
$74.71.  The  claim  of  appeal  states  the 
ground  of  appeal  to  be  that  the  probate  court 
disallowed  the  sum  of  1300  for  extra  com- 
pensation to  which  he  was  justly  entitled. 
The  circuit  court  on  appeal  increased  this  ex- 
tra compensation  to  $150;  but,  it  appearing 
tbat  the  administrator  bad  used  the  funds  of 
tbe  estate  in  bis  own  business,  as  a  condition 
of  such  allowance  charged  him  interest  at 
the  rate  of  S  per  cent 

Some  errors  are  assigned  upon  rulings  re- 
lating to  the  admission  of  testimony ;  but  no 
reason  is  pointed  out  in  the  brief  of  counsel 
why  these  rulings  were  erroneous,  and  none 
occurs  to  us.  It  is  entirely  proper  for  the  cir- 
cuit Judge  to  possess  himself  of  all  tbe  in- 
formation obtainable  as  to  the  manner  of  the 


administration  of  the  estate  as  bearing  upon 
the  question  of  the  administrator's  right  to 
additional  compensation.  But  two  points  are 
really  pressed  upou  the  argument  Tbe  first 
is  that  the  court  was  in  error  not  to  permit 
a  trial  of  the  question  on  this  appeal  by  a 
Jury.  As  before  stated,  the  appeal  present- 
ed tbe  single  question  of  the  sufficiency  of 
the  allowance  for  extra  compensation.  This 
question  is  peculiarly  a  question  depending 
upon  the  discretion  and  Judgment  of  the  trial 
court ;  the  statute  (Comp.  Laws.  {  9438)  pro- 
viding that  in  all  cases  such  further  allow- 
ances may  be  made  as  the  Judge  of  probate 
may  deem  just  and  reasonable,  for  any  ex- 
traordinary services,  not  required  of  an  exec- 
utor or  administrator  in  the  common  course 
of  his  duty.  The  question  is  not  new  in  this 
state.  As  was  said  in  Mower's  Appeal,  48 
Mich.  441, 12  N.  W.  646,  referring  to  this  stat- 
ute, it  was  never  contemplated  that  when  tbe 
case  reaches  the  circuit  court  the  Judgment 
of  a  jury  might  be  substituted  for  the  dis- 
cretion of  the  judge  In  respect  to  such  allow- 
ances. This  case  is  followed  in  Loomis  v. 
Armstrong,  63  Mich.  355,  29  N.  W.  867,  Wis- 
ner  v,  Mabley  Estate,  70  Mich.  271,  88  N.  W. 
262,  and  In  re  Brewster's  Estate,  113  Mich. 
661,  71  N.  W.  1085. 

It  is  urged  that  upon  this  record  the  allow- 
ance is  inadequate.  This  question  was  lllce- 
wise  a  question  for  the  trial  court,  except  in 
case  of  abuse  of  discretion.  See  Mower's  Ap- 
peal, supra ;  Bacon  v.  Judge  of  Probate,  100 
Mich.  183,  68  N.  W.  835;  In  re  Brewster's 
Estate,  supra.  We  unhesitatingly  say  that 
this  is  not  a  case  of  abuse  of  discretion 
on  the  part  of  the  trial  court,  but,  on  the 
contrary,  that  the  allowance  was  liberal  un- 
der tbe  circumstances  presented  by  this  case. 

The  judgment  is  affirmed,  with  costs. 


DALM  V,  BRYANT  PAPER  CO. 

(Supreme  Court  of  Michigan.    July  16,  1909.) 

1.  Appeal  and  Ebbob  ({  1033*)— Habmless 
Ebbob, 

Apoellant  may  not  assign  error  on  rulings 
favorable  to  him. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  Sf  4032-4002;  Dec.  Dig.  | 
1033.*] 

2.  Masteb  and  Sebvant  (i  95*)- Statutes- 
Employment  OK  Minors. 

Pub.  Acts  1901,  p.  157,  No.  113,  |  3,  pro- 
vides that  no  child  under  16  years  of  age  snail 
be  employed  in  any_  factory  at  employment 
whereby  life  or  limb  is  endangered.  Held,  that 
the  employment  of  a  boy  to  take  up  paper  which 
broke  while  going  through  tbe  rollers  of  a  pa- 
per mill,  an  occupation  in  which  there  was  dan- 
ger of  the  hands  of  the  servant  being  caught  in 
the  rollers,  was  within  the  statute. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant  Cent  Dig.  {  141;   Dec.  Dig.  i  05.*] 

3.  Master   and   Servant   ({   190*)- Fellow 
Servants. 

The  tender  of  a  machine  in  a  paper  mill, 
who  Instructed  a  "winder  boy"  to  take  up  paper 


•For  oUiar  cases  see  sams  topic  and  section  NUMBER  In  Dec.  &  Am.  Dlga.  1907  to  data,  &  Reporter  Indexes 


122N,W.-17 


Digitized  by  VjOOQ  l€ 


258 


122  NORTHWESTERN  REPORTER. 


(Sllch. 


that  broke  In  passine  through  the  rolls  of  a 
machine,  in  so  directing  the  box,  ^B^  "ot  his 
fellow  servant. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  §i  449-174;    Dec.  Dig.  { 

4.  Trial  (J  192*)— Instbuctions. 

Where,  in  an  action  for  injuries  to  a  boy 
employed  in  a  paper  mill  while  taking  up  pa- 
per that  broke  in  passing  through  the  rolls, 
defendant  claimed  that  such  work  was  no  part 
of  his  duties,  and  there  was  no  mention  of  tak- 
ing up  such  paper  in  defendant's  evidence  in 
relation  to  instructions  to  plaintiff,  the  state- 
ment by  the  court  in  instrucLing  the  jury  that 
it  was  admitted  that  defendant  gave  no  instruc- 
tions as  to  the  danger  in  removing  broken  pa- 
per was  warranted. 

[Ed.  Note.— For  other  cases,  see  Trial,  Dec. 
Dw.  I  192.«] 

5.  THIAL  (J  232*)— lN8TROCTj;ONS.  * 

The  court  instructed  that  the  jury  should 
not  take  as  true  anything  that  the  attorneys 
bad  stated  as  to  what  the  evidence  was.  Held, 
that  it  was  not  error ;  the  court  having  stat- 
ed that  it  was  for  the  juiy  to  judge  of  the  evi- 
dence, and  that  they  should  be  governed  by 
the  testimony,  and  not  by  the  statements  of 
counsel. 

[Ed.  Note.— For  other  cases,  see  Trial,  Dec. 
Dig.  {  232.*] 

6.  Masteb  and   Sebtant  (|  225*)— Assuuf- 
TiON  OF  Risk. 

Where  a  "winder  boy"  employed  in  a  pa- 
per mill  was  instructed  to  remove  broken  pa- 
per after  it  had  passed  through  the  rolls  of 
the  machine,  which  was  not  a  part  of  his  reg- 
ular duties,  he  did  not  assume  the  risk  of  in- 
jury in  removing  the  paper,  as  assumption  of 
risk  is  always  contractual. 

[Ed.  Note. — For  other  cases,  Master  and  Serv- 
ant, Cent.  Dig.  H  65&-«58 ;   Dec.  Dig.  f  225.*] 

Error  to  Circuit  Court,  Kalamazoo  Coun- 
ty;  John  W.  Adams.  Judge. 

Action  by  Jacob  Dalm,  by  William  F.  Mon- 
tague, blB-next  friend,  against  the  Bryant  Pa- 
per Company.  From  a  Judgment  in  favor  of 
plaintiff,   defendant  appeals.     Affirmed. 

Argued  before  GRANT,  C.  J.,  and  BLAIR, 
HOOKER,  MOORE,  and  McALVAY,  JJ. 

E.  M.  Iris^  and  Fred  L.  Yandeveer,  for  ap- 
pellant.   D.  O.  French,  tor  appellee. 

McALYAY,  J.  Plaintiff,  by  his  next  friend, 
brought  this  action  for  damages  against  de- 
fendant, a  paper  manufacturing  corporation, 
for  personal  injuries  received  while  in  its 
employment.  Plaintiff  was  between  15  and 
16  years  of  age.  He  was  employed  on  a  pa- 
per machine  In  the  plant  of  defendant,  April 
30,  1907,  as  a  "winder  boy."  His  Injury  oc- 
curred on  May  13th  following,  while  he  was 
between  what  is  Icnown  as  the  "calender 
stacks,"  taking  out  "broke"  paper,  which 
breaks  while  going  through  the  rollers  of 
the  calender  stacks,  and  becomes  torn,  tan- 
gled, and  sometimes  cut  into  pieces,  and  falls 
upon  the  floor  between  them.  In  this  part 
of  defendant's  plant  were  three  paper  ma- 
chines, the  one  in  question  being  a  machine 
extending  nearly  the  entire  length  of  the 
building  which  at  the  "wet"  end  receives  the 
pulp,  and,  carrying  it  along  over  and  through 


the  machinery  in  a  continuous  sheet,  finally 
delivers  it  at  the  calender  stacks  for  the  pur- 
pose of  finishing.  These  stacks  consist  of 
rollers,  one  above  the  other  to  the  height  of 
about  12  feet.  The  machine  manufactures 
about  200  feet  of  paper  per  minute.  The 
stacks  are  5  feet  apart.  The  paper  passes 
be'tween  the  several  rollers  of  the  first  stack, 
and  then  across  to  the  second  stack,  and 
through  its  rollers,  where  it  is  ironed  smooth 
and  finished.  After  passing  through  the  last 
calende;;  stack.  It  Is  slit  the  required  widtb, 
and  goes  upon  the  winders,  and  is  wound 
into  rolls.  The  alleged  duties  of  a  "winder 
boy"  are  to  watch  the  rolls,  and  see  that  they 
wind  evenly.  He  is  provided  with  a  sticfe 
to  press  upon  the  paper  rolls  for  that  purpose. 
Plaintiff  was  injured  between  the  calender 
stacks  where  he  had  gone  to  remove  "broke." 
He  had  taken  up  an  armful  to  bring  it  out, 
and  the  rollers  caught  the  paper,  and  sud- 
denly Jerked  his  hands  between  them  and  in- 
jured them  severely  and  permanently,  where- 
by he  lost  one,  and  the  other  was  rendered 
almost  useless.  At  the  time  plaintiff  was 
employed,  Mr.  Mllham  was  the  manager  of 
the  plant.  Mr.  Buss  was  general  superintend- 
ent. Mr.  Camp  was  under  Mr.  Buss,  and  had 
general  supervision  and  charge  of  tbia  de- 
partment containing  three  paper  machines, 
including  the  one  in  question.  Plaintiff  was 
hired  by  Camp.  He  recently  had  come  from 
Holland,  and  understood  little  of  the  English 
language.  Mr.  Camp  instructed  him  in  bis 
duties  relative  to  the  winding  machine.  He 
also  attempted  to  explain  to  him  danger  of 
injury,  from  getting  his  fingers  between  the 
rollers  in  the  calender  stacks.  On  this  par- 
ticular paper  machine  Martin  Nolan  was  ma- 
chine tender  In  charge.  The  crew  consisted 
of  himself,  his  son,  John  Nolan,  as  first  ten- 
der, his  son,  Wm.  Nolan  as  second  tender, 
and  plaintiff  as  winder  boy.  The  trial  result- 
ed in  a  substantial  verdict  for  plaintiff. 

Defendant  asks  for  a  reversal  upon  errors 
assigned.  The  first  error  relied  upon  is  the 
refusal  of  the  court  to  grant  defendant's  mo- 
tion (or  an  Instructed  verdict,  upon  the 
ground  that  there  was  no  evidence  in  the  case 
shovTing  any  negligence  on  the  jiart  of  de- 
fendant. The  declaration  as  first  filed  In  the 
case  alleged  that  plaintiff  was  employed  as 
a  winder  boy  by  defendant,  and  was  called 
from  his  work,  and,  contrary  to  statute,  or- 
dered to  take  "broke"  from  between  the  cal- 
ender stacks,  which  was  employment  danger- 
ous to  life  and  limb,  without  instruction  or 
warning  as  to  the  dangers  attending  such 
work.  An  amended  declaration  was  filed, 
charging  that  the  hiring  was  prohibited  by 
statute,  and  the  employment  dangerous  to 
life  and  limb,  and  charged  gross,  wiUful,  and 
wanton  negligence  in  requiring  the  plaintiff 
to  take  "broke"  from  between  the  calender 
stacks,  without  instructions  or  warning  as  to 
dangers.    The  case  on  the  part  of  the  plaln- 


*For  other  cMa«  sse  lama  topic  and  Mctlon  NUMBER  in  Deo.  A  Am.  Digs.  1S07  to  date,  t  Reporter  Indexei 


Digitized  by  VjOOQ  l€ 


Mich.) 


DALM  V.  BRYANT  PAPER  CXI. 


269 


tiff  was  tried  upon  the  theory  of  amended 
declaration,  above  briefly  stated.  The  theo- 
ty  and  claim  of  the  defendant  was  that  the 
hiring  waa  lawful,  and  made  after  the  father 
had  furnished  the  statutory  8tatem«it  of 
plalntlfT's  age,  that  the  employment  of  a 
winder  boy  Is  not  dangerous  to  life  and  limb, 
and  that  he  went  between  the  calender  stacks 
contrary  to  InstmctlonB,  and  without  the  di- 
rection, knowledge,  or  consent  of  any  one  in 
aathorlty,  upon  the  order  of  a  fellow  servant, 
and  with  knowledge  of  the  danger.  The  plain- 
tiff's testimony  was  that  he  was  first  told  to 
go  between  these  stacks  and  take  out  the 
"broke"  by  Martin  Nolan,  hla  "boss,"  and  later 
bT^  Noten  and  his  Bona^  wba  twimiged  to  the 
mscblne  crew.  He  testified  that  no  person 
except  Nolan,  the  tender  In  charge  of  this 
paper  machine,  or  the  two  men  (his  sons) 
next  under  him,  ever  told  him  to  do  this 
work,  and  that  he  was  ordered  to  do  that 
work  several  times. 

It  Is  urged  by  defendant  that  the  negli- 
gence. If  any,  was  that  of  a  fellow  servant, 
and  consequently  defendant  cannot  be  held 
liable.  The  trial  court  held  that  the  Nolans 
were  fellow  servants  with  plaintiff.  While 
such  holding  was  favorable  to  the  contention 
of  defendant,  and  no  error  could  be  assigned 
upon  it,  yet  if  the  question  of  the  negligence 
of  a  fcjlow  servant  is  not  in  the  case,  and 
Nolan,  the  head  tender  on  this  machine,  was 
giving  orders  to  plaintiff  as  to  the  work  to  be 
done  by  him,  as  the  representative  of  defend- 
ant, the  court  was  mistaken  in  classifying 
Martin  Nolan  as  a  fellow  servant  of  plaintiff. 
The  testimony  of  the  general  manager  phows 
that  Martin  Nolan  had  general  charge  of 
this  machine  and  those  employed  on  the  ma- 
chine, and  told  them  what  to  do.  It  is  con- 
tended by  plaintiff  that  this  employment  was 
prohibited  by  the  statute  referred  to,  being 
section  3,  Act  No.  113,  p.  157,  Pub.  Acts  1901, 
which  provides:  "No  chUd  under  the  age 
of  sixteen  years  shall  be  employed  by  any 
person,  firm  or  corporation  conducting  any 
manufacturing  establishment  In  this  state  at 
employment  whereby  its  life  and  limb  is  en- 
dangered. •  •  * "  The  requirements  of 
this  statute,  the  duty  resting  upon  the  em- 
ployer under  it,  and  the  liability  for  neglect 
of  such  duty  are  discussed  in  the  cases  cited 
below. 

PlalntifTs  case  as  made  tends  to  prove  that 
Martin  Nolan,  three  or  four  days  after  plain- 
tiff went  to  work,  ordered  him  to  take  the 
"broke"  out  from  between  the  calender 
stacks,  and  that  one  of  his  sons  then  took  him 
by  the  arm  and  led  him  In  there  and  showed 
him  what  was  meant  by  the  order.  This  Is 
disputed,  but  It  makes  it  a  question  of  fact 
for  the  Jury,  if  material.  It  is  clear  from  the 
record  that  this  was  work  dangerous  to  life 
and  limb.  No  instructions  were  given  to 
plaintiff  as  to  dangers  attending  this  partlc- 
tdar  worl(.  Mr.  Camp  on  the  second  day  had 
shown  him  danger  from  injury  U  his  fingers 
sot  between  these  rollers,  but  nothing  what- 


ever relative  to  taking  out  "broke."  In  fact 
it  is  contended  that  taking  out  "broke"  was 
not  within  the  scope  of  his  employment  as  a 
"winder  boy."  Under  the  statute  he  could 
not  be  employed  at  such  work  by  reason  of 
his  age.  Can  it  be  said,  even  if  the  work  of 
the  winder  boy  In  this  manufactory  was 
without  danger  to  life  and  limb,  which  we  do 
not  determine,  that  he  can  be  required  to  do 
this  dangerous  work,  and  thereby  become 
a  fellow  servant  with  the  person  ordering 
him  to  do  it?  See  Syneszewski  v.  Schmidt, 
153  Mich.  438,  116  N.  W.  1107,  15  Detroit 
Leg.  N.  509.  If  it  may  be  done,  then  the 
duty  imposed  by  the  statute,  and  liability 
for  neglect  of  such  duty,  may  in  every  case 
be  avoided.  Nor  could  plaintiff  be  held 
to  have  assumed  the  risk,  for  the  reason 
that  assumption  of  risk  is  always  predicat- 
ed upon  a  contractual  relation.  It  follows, 
from  the  showing  upon  the  record,  that 
Martin  Nolan  in  his  capacity  as  tender  In 
charge  of  this  machine  and  its  entire  crew. 
In  giving  orders  to  plaintiff  to  do  this  work 
at  which  he  was  Injured,  acted  as  the  repre- 
sentative of  the  defendant  The  order  of 
Nolan  was  an  act  of  authority,  exercised  con- 
cerning a  positive  duty  which  could  not  be 
delegated.  These  conclusions  are  supported 
by  previous  decisions  of  this  court.  See  Sy- 
neszewski V.  Schmidt,  supra;  Slpes  v.  Mich. 
Starch  Co.,  137  Mich.  258,  100  N.  W.  447; 
Sterling  v.  Union  Carbide  Co.,  142  Mich.  284, 
106  N.  W.  755;  Beghold  v.  Auto  Body  Co., 
149  Mich.  14,  112  N.  W.  691.  14  Ii.  R.  A.  (N. 
S.)  609.  The  fellow  servant  question  is  then 
eliminated  from  the  case.  The  court  was  not 
In  error  in  denying  defendant's  motion  for 
an  instructed  verdict 

This  conclusion  makes  It  unnecessary  to 
consider  the  error  assigned  to  the  admission 
of  the  testimony  of  witness  Liggett  relative 
to  the  duties  of  a  "winder  boy,"  and  also  up- 
on all  the  other  rulings  of  the  court  upon  the 
rejection  of  certain  testimony  of  defendant's 
witnesses  relative  to  the  duties  of  the  opera- 
tors of  this  machine,  and  who  of  them  could 
give  orders.  Such  rulings  were  without  prej- 
udice to  defendant.  The  requests  to  charge, 
which  were  not  given  under  our  holding, 
become  immaterial. 

It  is  claimed  that  the  court  erred  in  charg- 
ing the  jury :  "It  Is  admitted,  I  think.  In  the 
case  that  the  defendant  gave  the  plaintiff  no 
instructions  as  to  the  dangers  which  he 
would  be  liable  to  meet  in  removing  the 
'broke,'  etc.  •  •  • "  The  position  taken  by 
defendant  on  the  trial  warranted  such  charge. 
Its  claim  was  that  taking  out  "broke"  was 
not  a  duty  of  plaintiff ;  that  he  had  no  right 
to  be  between  the  calenders.  In  the  testi- 
mony of  defendant's  witnesses  no  mention  is 
made  of  taking  out  "brtAe"  when  instruc- 
tions were  given  plaintiff.  These  instruc- 
tions, as  far  as  the  calenders  were  concerned, 
in  giving  them  their  broadest  signification 
only  notified  plaintiff  of  danger  in  getting  his 
fingers  between  the  rollers,  and  to  keep  away 


Digitized  by  LjOOQ  l€ 


260 


122  NORTHWESTBBN  BEPORTBR. 


(Mlcb. 


from  the  stacks.  The  later  order  to  plaintiff, 
by  the  representative  of  defendant,  to  go  In 
there  and  take  out  "broke"  also  eliminates 
this  contention  of  defendant  as  to  this  por- 
tion of  the  charge. 

The  court  in  one  sentence  of  bis  charge 
said :  "You  are  not  to  take  as  true  anything 
that  the  attorneys  have  stated  as  to  what  the 
evidence  is  in  the  case."  Error  Is  assigned 
upon  it.  No  discussion  is  required,  for  the 
reason  that  the  court  proceeding  said:  "It 
is  for  you  to  say  what  it  is.  It  has  been  re- 
ported to  you.  You  are  the  judges  of  it,  and 
you  are  to  use  your  own  Judgment  as  to 
what  it  Is  whether  the  attorneys  have  stated 
It  correctly  or  not  If  they  have  not,  you  are 
to  disregard  it.  In  other  words,  you  are  to 
be  goremed  by  the  testimony  in  the  case,  not 
by  what  counsel  say  the  evidence  is.  That 
applies  to  counsel  on  both  sides."  The  plain- 
tiff made  out  a  case  to  be  submitted  to  the 
Jury,  and  defendant  cannot  complain  on  ac- 
count of  holdings  of  the  court  which  were  too 
favorable  in  its  behalf.  We  find  no  preju- 
dicial error  in  the  case. 

The  Judgment  is  afBrmed. 


ATTORNEY  GENERAL  ex  rel.  MAGTJIRB 
V.  MURPHY,  Circuit  Judge. 

(Supreme  Court  of  Michigan.    July  16,  1009.) 

1.  MCN<CIPAL  CORPOBATIONS  (§  860*). 

Detroit  city  charter  not  conferring  on  the 
mayor  power  to  make  extensive  investigations 
requiring  the  examination  of  witnesses  and  the 
expenditure  of  large  sums  of  money  for  the 
purpose  of  eqalpping  himself  to  recommend  ac- 
tion to  the  common  council,  the  common  coun- 
cil cannot  confer  such  power,  and  hence  a  reso- 
lution appropriating  and  placing  at  the  dispos- 
al of  the  mayor  a  certain  sum  to  investigate 
the  street  railway  question  of  the  city,  and 
directing  the  city  controller  to  pay  any  bills 
presented  and  approved  by  the  mayor  ont  of 
the  appropriation,  was  nnautborized. 

[E2d.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  |  1815;  Dec.  Dig.  { 
860.*] 

2.  MUNTCIPAI,    COBFORATIONS    (J    60*)  —  COM- 
MON CouNcn.. 

The  common  council  of  the  city  of  De- 
troit may  choose  its  own  method  of  collect- 
ing information  to  guide  its  legislative  discre- 
tion, and  may,  if  it  chooses,  conduct  its  inves- 
tigation through  a  committee  of  outsiders  or 
through  the  mayor,  providing  the  investigation 
is  made  in  Its  behalf,  in  accordance  with  its 
directions,  and  subject  to  its  control,  and  the 
results  are  reported  to  it  for  its  action. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  130;  Dec  Dig.  { 
60.»] 

3.  Mdnicipai,  Corporations  (J  860«). 

A  resolution  of  the  common  council  of  the 
city  of  Detroit,  directing  the  city  controller  to 
pay  any  bills  presented  and  approved  by  the 
mayor  out  of  a  certain  appropriation  made  for 
the  purpose  of  investigating  the  street  railway 
question,  being  in  contravention  of  mandatory 
provisions  of  the  city  charter,  was  illegal  and 
void,  and  was  not  validated  by  the  fact  that 
the  mayor  intended  to  pursue  the  charter  course 
for  the  allowance  of  his  bills,  since  the  reso- 


'  lution  mnst  speak  for  itself  unaffected  by  un- 
disclosed intentions. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  |  1815;  Dec.  Dig.  i 
860.*] 

Brooke,  Hooker,  and  Moore,  JJ.,  dissenting. 

Petition  by  the  Attorney  General,  on  re- 
lation of  Matthew  J.  Magulre,  for  writ  of 
mandamus  against  Alfred  J.  Murphy,  Wayue 
Circuit  Judge.     Writ  granted. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDER,  HOOKER, 
MOORE,    McALVAY,    and    BROOKE,    JJ. 

Bishop  tc  Sullivan,  for  relator.  P.  J.  M. 
Hally,  for  respondent 

• 
BROOKE,  J.  On  the  9th  day  of  February, 
1909,  the  common  council  of  the  city  of  De- 
troit passed  the  following  resolution:  "Re- 
solved: That  the  sum  of  Ave  thousand  dol- 
lars be  and  is  hereby  appropriated  from  the 
moneys  in  the  contingent  fund  and  placed 
at  the  disposal  of  his  honor,  the  mayor,  to 
investigate  the  street  railway  question  of 
the  city  of  Detroit;  and  the  city  controller 
be  and  he  is  hereby  directed  to  pay  any  bills 
presented  and  approved  by  his  honor,  tbe 
mayor,  out  of  said  appropriation."  On  the 
12th  of  February,  1909,  the  Attorney  Gener- 
al, on  the  relation  of  Matthew  J.  Magulre,  a 
resident  citizen  and  taxpayer  of  the  city  of 
Detroit  filed  a  bill  of  complaint  in  the  cir- 
cult  court  of  Wayne  tounty  for  tbe  purpose 
of  securing  an  injunction  against  the  com- 
mon council  of  the  city  of  Detroit  "from 
authorizing  the  city  controller  to  issue  his 
warrant  or  any  warrant  upon  the  said  city 
treasurer  of  the  said  city  of  Detroit  for  tbe 
payment  of  said  sum  of  $5,000  or  any  part 
thereof,  for  tbe  payment  of  any  bill  or  ex- 
pense of  the  said  committee  of  60  out  of 
said  contingent  fund  or  any  fund  of  the  city 
of  Detroit  or  bill  or  expense  incurred  or  to 
be  Incurred  by  the  said  mayor  under  said 
resolution  of  February  9,  1909,  or  any  simi- 
lar resolution  theretofore  or  hereafter  adopt- 
ed by  the  said  common  council,"  for  an  in- 
junction against  the  mayor  "from  approving 
said  resolution  adopted  by  the  common  coun- 
cil of  Detroit  on  February  9,  1909,  and  that 
he  be  temporarily  and  perpetually  enjoined 
from  approving  any  bill  or  expense  under 
and  by  virtue  of  said  resolution,  and  from 
expending  any  sum  which  may  be  paid  to 
him  under  and  by  virtue  of  said  resolution 
of  February  9,  1909,  In  the  payment  of  any 
bin  or  expense  incurred  and  to  be  Incurred 
by  the  said  committee  of  50,  and  in  the  event 
of  any  or  all  of  said  appropriation  of  $5,000 
having  been  paid  to  him,  the  said  mayor,  that 
he  be  temporarily  and  perpetually  enjoined 
from  paying  or  expending  said  money  so 
collected  by  him  for  any  purpose  whatever, 
and  that  he  be  ordered,  adjudged,  and  de- 
creed by  this  court  If  any  of  said  money 


•For  other  casea  see  samo  topio  and  section  NUMBER  In  Dae.  ft  Am.  Digs.  U07  to  data,  ft  Reportar  Indazea 


Digitized  by  VjOOQ  l€ 


MldL) 


ATTOENET  GENBRAL  v.  MURPHY, 


261 


bas  been  paid  to  him,  to  account  for  and 
turn  back  Into  the  treasury  of  tbe  city  of 
Detroit  the  same";  against  Frank  E.  Dore- 
mus,  city  controller,  "from  issuing  his  war- 
rant or  any  warrants  upon  the  city  treasurer 
of  tbe  city  of  Detroit  for  the  payment  of 
said  sum  of  $5,000,  or  any  part  thereof,  as 
provided  for  in  said  resolution  of  February 
9,  1900,  for  the  liquidation  of  any  bill  or  ex- 
pense, presented  and  approved  by  the  mayor 
of  Detroit,  under  said  resolution  of  Febru- 
ary 9,  1909,  out  of  said  contingent  fund  or 
any  fund  of  tbe  city  of  Detroit,  and  from 
making  and  Issuing  any  warrant  upon  the 
said  treasurer  for  payment  of  any  bill  pre- 
sented and  approved,  the  purpose  of  which 
being  to  defray  any  bill  or  expense  of  the 
said  committee  of  SO";  against  Max  C.  Koch, 
city  treasurer  of  tbe  city  of  Detroit,  "from 
paying  out  any  money  from  the  contingent 
fund  or  any  other  fund  of  said  city  upon 
any  warrant  or  warrants  executed  by  tbe 
city  controller  under  and  by  virtue  of  the 
resolution  adopted  by  the  common  council 
of  tbe  city  of  Detroit  on  February  9,  1909, 
bereinbefore  s^t  forth." 

The  bin  of  complaint  avers,  among  other 
things,  that  the  mayor  of  the  city  of  De- 
troit has  assumed  to  create  a  So-called  "com- 
mittee of  50,"  composed  of  private  Individ- 
uals unconnected  with  the  administration 
of  the  city  government  and  not  authorized 
or  created  by  the  Constitution  of  the  state 
or  any  law  of  the  state,  for  the  purpose  of 
acting  with  the  mayor  in  investigating  the 
street  railways  of  said  city  and  their  rights 
in  and  to  the  streets  therein,  with  the  view 
of  advising  the  mayor  and  common  council 
as  to  what  action  should  be  taken  In  refer- 
ence thereto.  The  city  by  Its  answer  admit- 
ted the  passage  of  said  resolution  and  ap- 
pointment of  the  committee  of  50  by  the 
mayor  and  its  purpose  to  use  the  fund  appro- 
priated by  said  resolution  in  defraying  the 
expenses  Incurred  by  said  committee  In  in- 
vestigating the  street  car  question  in  the 
city  of  Detroit.  Further  answering.  It  avers: 
"That  the  dty  of  Detroit  Is  a  city  covering 
many  miles  of  territory  with  a  population, 
to  wit,  400,000  inhabitants.  Tbat  in  the  year 
1862  certain  rights  were  granted  In  tbe 
streets  In  the  city  of  Detroit  to  certain  gen- 
tlemen who  afterwards  organized  the  Detroit 
City  Railway  Company.  Tbat  in  the  year 
1879  these  rights  were  extended  for  a  period 
of  30  years.  That  these  grants  by  the  city 
of  Detroit  were  made  under  the  laws  of  the 
state  of  Michigan.  That  on  the  14th  day 
of  November,  1909,  the  period  of  extension 
granted  In  tbe  year  1879  will  have  been  com- 
pleted. That  for  a  number  of  years  tbe 
street  railway  question  has  agitated  tbe  pub- 
lic mind,  and  bas  been  the  subject  of  dis- 
cussion in  political  campaigns.  That  these 
defendants  are  Informed  and  believe  that  the 
character  of  the  population,  tbe  manner  In 
which  tbe  city  bas  been  built.  Is  such  that 


street  railway  service  is  essential  in  order 
to  accommodate  the  people  from  day  to  day. 
That  It  is  necessary  to  take  steps  to  continue 
the  street  car  service.  That  tbe  city  of  De- 
troit as  a  municipality  is  powerless  to  en- 
gage In  this  enterprise  itself,  and  that  it  is 
Incumbent  upon  the  officers  of  the  city  of 
Detroit  to  make  on  Investigation  and  ascer- 
tain, if  possible,  upon  what  terms  and  upon 
what  conditions  the  city  may  continue  to 
enjoy  street  railway  facilities.  And  that  tbe 
expenditure  of  money  for  this  purpose  Is  the 
expending  of  money  for  a  public  purpose." 
The  answer  denies  that  It  was  the  purpose 
of  tbe  common  council  to  deprive  Itself  of 
the  right  to  audit  and  allow  the  various  items 
of  expense  according  to  tbe  usual  manner, 
but  concedes  that  It  Is  the  purpose  to  de- 
fray the  proper  expenses  of  the  committee 
of  50  in  and  to  tbe  investigation  of  the  street 
car  question.  An  order  to  show  cause  was 
Issued  by  the  circuit  court  for  the  county  of 
Wayne  upon  the  return  of  which  a  prelim- 
inary injunction  was  denied.  The  case  is 
here  on  an  application  tor  mandamus  to  com- 
pel the  circuit  Judge  to  Issue  the  Injunction 
prayed  for  in  the  bill. 

There  being  no  final  order  or  decree  In 
this  case,  and  the  writ  sought  being  a  discre- 
tionary one,  it  might  readily  be  determined 
that  the  relief  prayed  should  be  denied  with- 
out a  consideration  of  tbe  merits.  See  Kel- 
sey  V.  Wayne  Circuit  Judge,  120  Mich.  457, 
79  N.  W.  694;  Fletcher  &  Sons  v.  Circuit 
Judge,  136  Mich.  511,  99  N.  W.  74a  But  in- 
asmuch as  the  matter  presents  a  question  of 
unusual  importance,  and  as  tbe  denial  of  tbe 
temporary  writ  Is  In  effect  the  denial  of  ail 
the  relief  sought  In  the  bill,  we  will  consider 
the  case  as  if  It  were  here  on  appeal  from  a 
final  decree. 

Three  objections  to  the  action  of  the  dty 
are  urged  by  the  complainant:  (1)  That  tbe 
resolution  was  too  vague.  (2)  That  it  was 
unlawful  to  expend  the  money  for  this  pur- 
pose. (3)  The  resolution  seeks  to  appropri- 
ate moneys  out  of  the  contingent  fund  to  de- 
fray  expenses    which   are   not   contingent. 

We  do  not  think  tbat  the  flrat  objection 
urged  by  the  petitioner  Is  tenable.  It  is  a 
well-known  fact  of  which  the  court  may  take 
Judicial  cognizance  that  the  investigation 
of  the  street  railway  question  involves  a  vast 
amount  of  inquiry  In  many  directions.  The 
physical  value  of  the  property  of  the  rail- 
way company  now  upon  the  streets  of  the 
defendant  city  where  franchises  are  soon 
to  expire,  the  necessity  to  provide  for  the 
present  and  future  demands  of  the  city  by 
additional  trackage,  the  proper  and  remu- 
nerative rate  of  fare  to  be  charged  for  the 
service  to  be  rendered,  the  proper  control 
of  such  service  and  tbe  making  of  It  ade- 
quate, a  Just  and  equitable  system  and  rate 
of  taxation,  together  with  many  other  mat- 
ters which  are  clearly  of  tbe  highest  Import- 
ance to  the  city  of  Detroit  but  could  scarce- 


Digitized  by 


Google 


262 


122  NORTHWESTERN  REPORTER. 


(Mlda. 


ly  be  ennmerated,  all  of  which,  however,  are 
clearly  within  the  expression  '*to  Investigate 
the  railway  question."  It  may  be  supposed 
that  the  common  comicll  used  the  general 
language  for  the  purpose  of  allowing  such 
freedom  as  the  character  of  the  subject  and 
the  necessities  of  the  situation  might  there- 
after properly  develop. 

As  to  the  other  point  raised,  we  condnde 
that  there  was  no  such  knowledge  on  the 
part  of  the  city  at  the  time  the  budget  of 
1908  was  passed  upon  by  the  common  council 
and  the  board  of  estimates  as  to  make  it  im- 
proper or  unlawful  for  this  appropriation 
to  be  made  from  the  contingent  fund.  It  is, 
as  stated  by  the  complainant,  true  that  the 
city  of  Detroit  knew  In  1908  that  certain  of 
the  franchises  of  the  Detroit  United  Railway 
would  expire  in  Nctvember,  1909;  but  the  ex- 
act manner  in  which  it  might  thereafter  be 
determined  wise  to  enter  upon  an  investiga- 
tion of  the  rights  and  duties  of  the  city  and 
the  railway  company  as  to  each  other  could 
not  have  been  known.  The  contingent  fund, 
as  its  name  implies,  Is  one  designed  for  the 
purpose  of  giving  elasticity  to  the  finances 
of  a  municipality  and  to  provide  for  emer- 
gencies such  as  may  arise,  a  fair  example 
of  which  is  afforded  by  the  case  at  bar. 

The  most  important  question,  however, 
and  the  one  which  has  given  us  most  trouble, 
Is  that  which  arises  from  the  placing  of  the 
money  in  the  bands  of  the  mayor  for  the 
designated  purpose,  but  concededly  and  no- 
toriously to  be  used  by  him  in  the  defraying 
of  the  expenses  incurred  by  a  body  of  men 
sustaining  no  official  relation  to  the  city  of 
Detroit,  and  being  responsible  to  no  one  for 
the  proper  and  honest  discharge  of  the  obli- 
gations it  has  assumed.  A  consideration  of 
these  facts  at  first  seems  to  present  insuper- 
able obstacles  to  the  carrying  out  of  the  proj- 
ect as  designed  by  the  comojon  council;  but 
upon  further  reflection  it  would  seem  that 
the  action  may  be  sustained  upon  broad 
grounds  of  public  policy.  The  history  of  the 
case  discloses  the  fact  that  the  common  coun- 
cil originally  passed  a  resolution  placing  the 
fund  in  question  at  the  disposal  of  the  com- 
mittee itself,  but  upon  advice  of  the  corpora- 
tion counsel  rescinded  that  resolution  and 
passed  the  one  here  in  question.  There  is 
no  doubt  that  the  common  council  by  a  com- 
mittee of  Its  own  body  could  employ  and 
properly  compensate  experts  for  the  gath- 
ering and  placing  before  the  council  all  In- 
formation absolutely  necessary  to  enable 
it  to  intelligently  execute  the  trust  reposed 
in  it  by  the  municipality  with  reference  to 
this  most  important  question.  By  its  action 
in  the  present  case  we  are  disponed  to  the 
conclusion  that  It  has  said  in  ^ect  that  It 
desires  for  Its  guidance  information  to  be 
gathered  by  experts  selected  by  and  under 
the  direction  of  the  committee.  In  other 
words,  it  has  merely  entered  into  a  con- 
tract with  those  experts  upon  the  advice  and 


recommendation  of  a  committee  of  gentle- 
men in  whose  Judgment  It  has  confidence. 

The  subject  of  the  right  of  a  munidpallty- 
to  deal  with  matters  of  purely  local  moment: 
In  the  manner  dictated  by  the  Judgment  of 
its  properly  constituted  authorities  has  been, 
before  this  court  on  more  than  one  occasion. 
In  the  case  of  Attorney  General  v.  Detroit, 
26  Mich.  264.  It  Is  said:  "It  is  the  unwarrant- 
ed use  of  the  money  that  Justifies  the  Inter- 
ference, and  the  pretense  upon  which  It  was 
raised  is  not  Important  to  the  question  of 
Jurisdiction.  •  •  •  It  should  appear  that 
the  public  has  a  substantial  interest  In  the 
question;  the  right  Involved  should  be  a  pub- 
lic right,  or  at  least  not  a  private  right  mere- 
ly ;  the  wrong  done  or  attempted,  If  It  consist 
soIeTy  in  a  misuse  or  misappropriation  of 
funds,  should  be  either  one  involving  ques- 
tions of  public  policy,  or,  where  that  Is  not 
the  case,  the  amount  involved  should  be  some- 
thing more  than  merely  nominal."  In  tor- 
rent V.  Muskegon,  47  Mich.  116, 10  N.  W.  132, 
41  Am.  Rep.  715,  it  is  said:  "But  in  saying 
this  we  do  not  assume  that  it  belongs  to  this 
court,  or  any  other,  to  dictate  to  the  city 
bow  it  shall  spend  its  money.  The  council 
must  use  its  own  discretion  where  It  will 
save  and  where  It  will  spend ;  and  the  case 
must  be  a  very  dear  one,  and  the  subterfuge 
very  plain,  before  that  discretion  can  be  re- 
garded as  having  been  exceeded  so  as  to 
show  an  excess  of  power  under  a  pretense  of 
keeping  within  it.  It  Is  not  the  business  of 
courts  to  act  as  city  regulators,  and,  unless 
the  authority  of  the  representatives  of  the 
dtizens  has  been  exceeded,  their  action  can- 
not be  interfered  with  merely  because  It  may 
not  seem  to  other  persons  to  be  as  wise  as  It 
might  be."  In  Port  Huron  v.  McCall,  46 
Mich.  565,  10  N.  W.  23,  the  court,  through 
Mr.  Justice  Cooley,  spoke  as  follows :  "There 
is  a  principle  of  law  that  municipal  powers 
are  to  be  strictly  Interpreted,  and  it  Is  a  Just 
and  wise  rule.  Municipalities  are  to  take 
nothing  from  the  general  sovereignty  except 
what  Is  expressly  granted;  but  when  a  pow- 
er is  conferred  which  in  its  exerdse  con- 
cerns only  the  municipality,  and  can  wrong 
or  injure  no  one,  there  is  not  the  slightest 
reason  for  any  strict  or  literal  Interpretation 
with  a  view  to  narrowing  Its  construction. 
If  the  parties  concerned  have  adopted  a  par- 
ticular construction  not  manifestly  erroneous, 
and  which  wrongs  no  one,  and  the  state  is 
in  no  manner  concerned,  the  construction 
ought  to  stand.  That  is  good  sense,  and  it 
is  the  application  of  correct  principles  In 
municipal  affairs." 

Upon  a  review  of  the  whole  case,  consid- 
ering the  magnitude  and  Importance  of  the 
Issues  Involved  as  affecting  the  rights  of  the 
city  of  Detroit  and  the  future  of  Its  citizens, 
we  are  of  opinion  that  the  case  presented  Is 
not  such  an  one  as  would  compel  this  court 
to  say  that  in  the  denial  of  the  Injunction 
sought  by  the  complainant  the  learned  dr- 


Digitized  by 


Google 


MichO 


CLEMENT  V.  CROSBY  &  00. 


263 


cult  JDdge  abused  a  discretion  with  which 
be  Is  clothed. 
The  writ  should  be  denied. 

HOOKER  and  MOORE,  JJ.,  concurred 
with  BROOKE,  J. 

BLAIR,  O.  X  I  am  unable  to  concur  in 
the  result  reached  by  Mr.  Justice  BROOKE 
In  this  matter.  The  solution  of  the  street 
railway  question  for  the  city  of  Detroit  Is 
unquestionably  a  legislative  problem  for  the 
determination  of  the  common  council.  It 
only  concerns  the  mayor  in  his  official  capac- 
ity as  all  questions  of  municipal  government 
concern  the  chief  executive  charged  with  the 
duty  of  informing  himself  as  to  them  and 
recommending  action  thereon  from  time  to 
time.  The  investigations  which  the  mayor 
makes  are  for  the  purpose  of  enabling  him 
to  properly  discbarge  the  duties  of  his  office 
and  are  compensated  by  the  salary  provided 
for  the  office.  It  is  not  contemplated  by  the 
charter  of  Detroit,  in  my  opinion,  that  the 
mayor  shall  make  extensive  investigations 
requiring  the  examination  of  witnesses  and 
the  expenditure  of  large  sums  of  money  for 
the  purpose  of  equipping  himself  to  recom- 
mend action  to  the  common  council,  and  the 
powers  essential  to  make  the  invest^satlon 
eftective  are  not  given  him  therein.  Such 
investigations  fall  within  the  domain  of  leg- 
islative action,  and  the  local  tieglslature  Is 
given  the  necessary  powers  to  make  them 
effective.  The  charter  not  conferring  this 
power  upon  the  mayor  but,  by  implication, 
negativing  it,  the  common  council  cannot, 
In  my  opinion,  confer  it.  Cooley's  Const 
LIm.  (4th  Ed.)  248-250;  28  Cyc.  463,  4C4; 
Union  Depot  Co.  v.  Smith,  16  Colo.  3C1,  27 
Pac.  329;   Dillon,  Municipal  Corp.  g  CO. 

I  Iiave  no  doubt  that  the  common  council 
may  choose  Its  own  method  of  collecting  In- 
formation to  guide  its  legislative  discretion. 
F.  &  P.  P.  R.  Co.  V.  Woodhull,  25  Mich.  99, 
12  Am.  Rep.  233.  It  may,  if  it  chooses,  con- 
duct its  investigation  through  a  committee  of 
outsiders  or  through  the  mayor,  providing 
the  investigation  is  made  in  its  behalf,  in 
accordance  with  Its  directions,  and  subject 
to  its  control,  and  the  results  reported  to  it 
for  its  action.  State  Tax  Law  Cases,  54 
Mich.  350,  20  N.  W.  493. 

The  resolution  under  discussion  was  not 
for  the  purpose  of  aiding  the  local  Legisla- 
ture to  perform  its  duty,  but  to  assist  the 
chief  executive  to  perform  his  duty.  The 
resolution  directs  the  city  controller  "to  pay 
any  bills  presented  and  approved  by  his  hon- 
or, the  mayor,  o;;t  of  said  appropriation." 
This  provision  is  in  contravention  of  manda- 
tory provisions  of  the  city  charter  and  Is 
therefore  illegal  and  void.  McCormIck  v. 
Bay  City,  23  Mich.  457.  The  fact,  as  alleged, 
that  the  mayor  intends  to  pursue  the  charter 
course  for  the  allowance  of  his  bills,  cannot 


validate  this  invalid  resolution.    The  resolu- 
tion must  speak  for  Itself  unaffected  by  un- 
disclosed intentions. 
The  writ  will  be  granted. 

GRANT,  MONTGOMERY,  OSTRANDBR, 
and  McALVAT,  JJ.,  concurred  with  the  Chief 
Justice. 

HOOKER,  J.  I  concur  with  the  Chief  Jus- 
tice in  the  opinion  that  the  council  has  power 
to  investigate  existing  conditions  and  neces- 
sities, as  regards  the  street  railway  of  De- 
troit, and  to  obtain  and  pay  for  professional 
and  expert  assistance  therein;  and  I  am 
not  prepared  to  say  that  it  may  not  call  to 
Its  aid  the  business  Judgment  of  its  citizens, 
for  whose  use  It  may  procure,  or  cause  to 
be  procured,  such  assistance,  and  may  pay 
the  necessary  expenses  of  such  persons.  I  al- 
so think  it  may  provide  for  the  payment  of 
the  expenses  of  such  persons,  whose  selec- 
tion ma,v  be  made  by  the  counclT  itself,  a  com- 
mittee thereof,  or  confided  to  the  mayor, 
through  whom  It  may  make  its  investigation. 
I  find  nothing  in  the  resolution  indicating 
that  the  Information  sought  to  be  acquired 
was  not  for  the  benefit  of  the  council,  as  well 
as  the  mayor,  and  I  am  not  satisfied  that  the 
council  has  not  power  to  provide  for  the  le- 
gitimate expense  of  the  office  of  mayor,  espe- 
cially in  the  performance  of  duties  imposed 
on  him  by  the  council.  It  appears  to  be  con- 
ceded by  counsel  that  it  could  not  confer  up- 
on the  controller  the  authority  to  pay  money 
upon  the  certificate  of  the  mayor  alone,  and 
the  learned  circuit  judge  has  found  that  there 
is  no  cause  for  apprehension  that  he  will.  I 
therefore  concur  in  the  denial  of  the  writ 


CLEMENT  V.  CROSBY  4  CO. 
(Supreme  Court  of  Michigan.    July  15,  1909.) 

1.  Explosives  (8  9*)— Sale  of  Dangerous 
Sdbstancks— Evidence  to  Wabbant  Find- 
in  o. 

In  an  action  for  injuries  caused  by  the  Ig- 
nition of  stove  polish  manufactured  by  defend- 
ant, testimony,  held  to  warrant  a  finding  that 
it  was  negligent  to  place  it  on  tlie  marl<et  for 
sale  for  common  use  without  notifyiug  the  pub- 
lic by  proper  label  or  otherwise  of  its  danger- 
ous character. 

[Ed.  Note.— For  other  cases,  see  Explosives, 
Dec.  Dig.  (  9.*] 

2.  Explosives  (§  9*)— Sale  of  Danogrocs 
Substances— Action  fob  Injuries— Vabi- 
ANCE  in  Pleading  and  Proof. 

In  an  action  against  a  manufacturer  for 
injuries  caused  by  putting  on  the  market  a  dan- 
gerously inflammable  stove  polish,  wbich  ignit- 
ed when  plaintiff  was  using  it,  a  variance  be- 
tween the  declaration  and  proof,  as  to  iiow  ig- 
nition was  caused,  is  not  vital  to  plaintiff's  re- 
covery, if  she  was  using  it  as  directed  and 
without  negligence. 

[Ed.  Note.— For  other  cases,  see  Explosives, 
Dec.  Dig.  i  9.*] 


•For  otber  uaw  see  same  topic  and  leeUon  NUMBER  in  Dec.  &  Am.  Dig*.  1907  to  date,  ft  Reporter  Isdexea 

Digitized  by  VjOOQ  l€ 


264 


122  NOBTHWKSTBRN  REPOBTEB. 


CMlcb. 


3.  Expix>siTES  (S  8*)— SAI.E  or  Danoeboub 
Substances— Action  foe  Injuries— Tbial 
—Special  Questions  to  Jury. 

In  an  action  for  injuries  caused  bj  the 
tue  of  a  dangerously  inflammable  stove  polish 
put  on  the  market  by  defendant,  the  manufac- 
turer, special  questions  to  the  jury,  as  to  how 
it  was  Ignited  when  used  by  plaintiff,  were  in- 
conclusive of  the  real  issue,  and  there  was  no 
error  in  not  submitting  them  for  that  reason. 

[Ed.  Note.- For  other  cases,  see  Explosives, 
Dec.  Dig.  i  9.*] 

4.  Appeai,  and  Error  (J  231*)— Review— Ne- 
cEsaiTT  OF  Pointing  Out  Errors  in 
Cbaboe. 

A  charge  as  to  wliich  no  error  is  pointed 
ont  will  not  be  considered  on  a  writ  of  error. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Dec  Dig.  {  231;*  Trial,  Cent  Dig.  U 
689,690.] 

6.  Appeai.  and  Error  ({  1060*)— Hariclebs 
Error— Argument  of  Counsex,. 

Where,  in  an  action  for  personal  injuries, 
testimony  leads  but  to  the  one  conclusion,  which 
was    reached    in    a   verdict   and   judgment   for 

Elaintiff,  extravagant  remarks  of  the  attorney 
or  plaintiff,  which  with  a  single  exception  ap- 
peared to  be  based  on  testimony,  should  not  be 
said  to  prejudice  defendant. 

[E3d.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  §  4135;    Dec.  Dig.  §  1060.*] 

Error  to  Circuit  Court,  Wayne  County; 
George  S.  Hosmer,  Judge. 

Action  by  Alice  D.  Clement  against  Crosby 
&  Co.  There  was  a  Judgment  for  plaintiff, 
and  defendant  brings  error.    Affirmed. 

See,  alSo,  148  Mich.  293,  111  N.  W.  745; 
149  Mich.  595,  113  N.  W.  286. 

Plaintiff  was  putting  stove  polish  or  enam- 
el upon  her  gas  range  with  a  brash  when, 
In  some  way,  it  ignited,  and  she  was  severe- 
ly burned.  She  brought  her  action  for  dam- 
ages against  both  the  manufacturer  of  the 
compound  and  the  merchant  who  sold  it  to 
her.  An  order  overruling  the  demurrer  of 
the  manufacturer  to  the  declaration  was  af- 
firmed. Clement  t.  Crosby  &  Co.,  148  Mich. 
293,  111  N.  W.  745,  10  L.  R.  A.  (N.  S.)  588. 
An  order  sustaining  the  demurrer  of  the  mer- 
chant was  affirmed.  149  Mich.  595,  113  N. 
W.  286,  13  L.  B.  A.  (N.  S.)  382,  119  Am.  St 
Rep.  695.  A  reference  to  the  opinions  of  this 
court  In  these  cases  will  discover  the  nature 
of  the  alleged  duties  of  the  defendants.  Later 
plaintiff  filed  an  amended  declaration,  in 
which  Crosby  &  Co.  Is  made  sole  defendant, 
which  contains  the  added  averment  that  the 
sale  was  in  violation  of  Act  No.  181,  Pub. 
Acts  1899.  The  testimony  on  the  part  of  the 
plaintiff  tended  to  prove  that  the  composi- 
tion was  some  pigment,  probably  carbons, 
and  volatile  matter  consisting  almost  entirely 
of  naphtha.  The  volatile  matter  was  66  per 
cent  of  the  whole.  It  was  volatile  at  an  or- 
dinary temperature,  produced  vapor,  and 
that  vapor,  mixed  with  air,  is  explosive.  She 
had  no  notice,  knowledge,  or  warning  of  the 
dangerous  nature  of  the  preparation.  As  to 
the  manner  In  which  the  Injury  occurred,  she 
testified:  That,  having  applied  the  polish 
to  the  top  and  to  three  sides  of  the  range,  she 


was  on  her  knees  by  the  side  of  the  range 
applying  the  polish  with  a  brush.    That  the 
brush  seemed  to  "flame  right  up."    "Q.   Was 
there  any  flame,  or  what  was  the  first  thing 
that  you  discovered  about  it?    A.  Why,   the 
flame.    *    •    *    I  don't  know  when  It  light- 
ed.   I  don't  know  If  I  went  to  put  It  back 
near  the  can  or  not;   but  the  first  thing   I 
was  all  burning,  my  hair  and  clothes.      Q. 
You  were  burning,  and  how  about  what  you 
had  on;    was  the  range  Itself,  was  that  on 
fire?   A.  Yes,  It  was  burning  all  over  the  top 
of  the  stove,  burning  all  over.    Q.  Did  the 
can  Itself  burn,  or  not?    A.  Oh,  yes,  the  can 
went  right  up  to  the  celling.    It  fiamed  right 
up.    *    *    *    Q.  And   you   claimed   it    was 
from  the  friction?     A.  Yes,  sir.     Q.  There 
was  no  flame  anywhere  near  it?    A.  No,  sir. 
Q.  No  red  hot  Iron?    A.  No,  sir.    Q.  There 
was  no  Iron  perceptibly  hot?    All  you  claim 
for  it.  It  was  warm?    A.  Yes,  sir;  the  whole 
of  that  side  of  the  stove  was  warm.    I  had 
covered  about  half  of  that  stove  when  I  no- 
ticed the  brush  Ignite.     Up  to  that  time  I 
had  not  noticed  that  the  heat  of  the  stove 
had  caused  any  flame  or  burning,  nor  was 
there  any  odor.    I  used  the  brush  the  same 
as  I  would  In  painting  the  floor,  Just  spread 
it  on.    I  used  Just  enough  pressure  to  spread 
on  the  enamel,  the  same  as  I  done  all  over 
the  sitove.    •    *    *    Q.  There  was  a  little 
flame  at  flrst  came  from  the  brush?    A.  Yes, 
sir.     Q.  Then  what  did  It  do,  spread?     A. 
I  don't  remember  whether  I  went  and  put 
the  brush  back  near  the  can;  but  the  next 
thing  I  was  all  In  flame.    *    *    *    Q.  As  a 
matter  of  fact,  Mrs.  Clement,  you  do  not 
know  how  you  caught  afire,  do  yon  your- 
self?   A.  I  don't  know.     It  was  the  polish 
that   ignited   me.    *    *    *    Q.  As   near   as 
you  can  get  to  it,  and  what  you  want  us  to 
understand  is  that  the  friction  of  the  brush 
on  the  stove  Itself  caught  fire?    A.  Yes,  sir. 
Q.  Now,  as  a  matter  of  fact,  and  Is  It  not 
true  this  stove  was  lit?    A.  No,  sir.    Q.  And 
that  you  got  the  brush  and  the  enamel  close 
to  the  fiame?    A.  No,  sir.     Q.  And  in  that 
way  ignited  it?    A.  No,  sir;    there  was  no 
flame  near  the  enamel,  and  the  stove  was 
not  lit,  and  there  was  no  fiame  there,  and  the 
brush  became  ignited  by  friction.    Q.  Is  there 
any  chance  of  your  being  mistaken  on  that? 
A.  No,  sir ;  there  Is  not  the  slightest    There 
was  not  sufficient  beat  on  that  part  of  the 
stove  to  even  cause  smoke  up  to  the  time  I 
saw  the  fiame,  and  there  was  no  odor  or  any 
evidence  of  burning  whatever;  but  suddenly 
there  was  a  flame." 

The  plaintiff  Introduced  the  testimony  of 
two  chemists,  one  of  whom  made  an  exam- 
ination of  the  compound  known  as  6-5-4  In 
the  fall  of  1906  and  determined  approximate- 
ly the  constituent  parts  In  it  He  testified: 
That  naphtha  will  not  Ignite  if  rubbed  od  a 
piece  of  iron  on  a  brush ;  that  anything  rais- 
ed above  a  low  red  heat  or  lighted  match  or  a 


•For  other  cues  see  same  topic  and  section  NUMBER  In  Dec.  *  Am.  Digs.  1807  to  data,  ft  Repertar  IsdeiM 


Digitized  by 


Google 


UlchO 


CLEMENT  T.  CROSBY  &  CO. 


263 


flame  wonld  Ignite  It ;  that  If  there  wag  no  fire 
In  the  stove  It  would  not  catch  fire ;  that  mere 
friction  on  an  ordinary  stove  with  a  brush 
would  not  Ignite  it.    The  other  chemist  testi- 
fied that  brushing  the  compound  on  the  side 
of  a  cold  stove  would  not  ignite  it,  and  he 
did   not  think  It  would  ignite  if  it  was  a 
warm  stove.     It  appears  that  certain  tests 
were  made  during  the  progress  of  the  trial  in 
the  basement  of  the  building  in  which  court 
was  held,  in  which  a  can  of  the  compound 
known  as  6-5-4  was  used,  of  some  of  the 
results  of  which  experiment  one  of  the  wit- 
nesses  for   the   plaintiff,    recalled,   testified 
that  It  required  a  naked  flame  to  ignite  it. 
"Q.  You  saw  what  we  did  down  there  this 
morning?    A.  Yes,  sir!     Q.  Took  a  red  hot 
iron  and  painted  it  on  with  a  brush?    A. 
Yes,  sir.    Q.  And  it  did  not  ignite?    A.  No. 
Q.  And  you  saw  a  fiame  held  over  it  wltliln 
two  Inches  of  it  for  a  considerable  length 
of  time  and  It  would  not  Ignite?    A.  Finally 
it  Ignited  after  it  had  a  chance  to  volatilize. 
Q.  It  was  held  and  wared  back  and  forth 
nntU  It  got  close  enough  to  light,  or  Igulte? 
A.  About  an  inch  and  a  half.    Q.  And  that 
was  quite  a  flame  like  on  a  torch?    A.  Yes, 
sir.    Q.  A  pretty  good  sized  flame?    A.  Well, 
that  is  immaterial,  a  match  would  ignite  it 
the  same  distance.     Q.  Well,   the  fiame  is 
not   as  large?     A.  It  does  not  matter.     Q. 
Well,  It  was  a  good  sized  torch  flame?    A. 
It  would  ignite  more  readily;   it  would  vol- 
atilize a  little  more  readily  on  account  of  the 
beat  from  the  torch.    Q.  How  long  do  you 
think  you  could  wave  that  torch  a  distance  of 
four  inches  from  that  without  lighting  it? 
A.  It   depends    upon    the    temperature.     Q. 
Take  the  temperature  such  as  we  have  in 
this  room,  72?    A.  I  don't  know  bow  readi- 
ly It  woald  volatilize,  I  never  tried  it    Q.  It 
depends  upon  the  temperature  of  the  room, 
and  the  proximity  of  the  flame  to  it?    A. 
Yes,  sir.     Q.  But  it  Is  volatile  considering 
Its   constituent   elements?     A.  Yes,   sir.     Q. 
Pare   naphtha  will   volatilize  more  quickly 
than  that  mixture  as  this  is?    A.  Yes,  sir." 
The   testimony   for   defendant   tended   to 
prove  that  the  composition  or  enamel  had 
been  manufactured  for  several  years,  that 
the  manufacturers  regarded  it  as  safe,  had 
never  heard  of  Its  exploding,  or  that  it  would 
ignite  from  the  friction  caused  by  spreading 
it  on  Iron  with  a  brash — that  it  would  not 
ignite  unless  in  contact  with  a  fiame.    A  dis- 
tributor of  the  product  for  the  manufacturers 
testified  to  sales  of  10,000  cans  In  a  period  of 
three  years   without   having   heard   a   com- 
plaint.   A  motion  to  direct  a  verdict  for  de- 
fendant was  denied ;    the  court  saying:     "I 
think  I  will  let  it  go  to  the  Jury  on  the  ques- 
tion of  whether  the  composition  which  is  sub- 
stantially two-thirds  naphtha  is,  or  Is  not,  a 
dangerous  article,  or  ought  to  be  sold  upon 
the  market.     Mr.   Henderson:     They   have 
cut  ont  of  the  declaration  that  which  would 
allow  us  to  show  that  she  was  guilty  of  con- 
trlbntory  negligence.     The  Court:     I  don't 


care  what  the  declaration  Is,  I  will  decide 
that  It  should  go  to  the  Jury  on  that  theory. 
I  will  let  It  go  to  the  Jury  upon  whether 
its  character  ought  to  have  been  expressed 
upon  the  box.  .  The  only  way  you  can  rid 
of  it  is  by  the  verdict  of  the  Jury  or  a  deci- 
sion of  the  Supreme  Court.  If  she  knew 
from  the  smell  of  It  that  naphtha  was  one  of 
its  constituent  parts,  and  the  Jury  find  that 
the  proximate  causd  of  the  injury  was  her 
own  carelessness,  that  Is  the  end  of  this  case. 
If  I  had  opened  that  box,  or  you  had  opened 
that  box,  I  think  either  one  of  us  would  have 
recognized  the  fumes  of  naphtha.  I  think  the 
Jury  are  warranted  from  the  testimony  in 
finding  that  there  was  fiame  around  there 
somewhere.  Mr.  Henderson:  Supposing  she 
had  stepped  on  a  match  and  set  fire  to  her 
dress,  and  then  set  fire  to  this,  we  would 
not  be  liable.  •  *  •  The  Court:  Well,  I 
am  going  to  let  it  go  to  the  Jury.  •  •  • 
The  theory  on  which  I  let  it  go  to  the  Jury 
Is  the  question  of  whether  it  was  negligence 
to  put  up  an  article  which  was  composed  of 
two-thirds  naphtha,  because  the  evidence  is 
that  about  two-thirds  of  it  was  naphtha,  with- 
out making  upon  the  box  something  to  indi- 
cate the  presence  of  such  a  product.  That  Is 
the  substance  of  the  theory,  and  whether  the 
fact  that  that  was  not  marked  on  the  box 
was  really  the  efficient  caase  of  the  acci- 
dent." 

The  Jury  was  Instructed:  "That  by  the 
common  law,  itself,  the  unwritten  law  of  this 
land,  it  is  essential  that  a  manufacturer  who 
puts  up  an  article  which  is  liable  to  cause 
injury  to  the  ignorant  must  of  necessity  put 
upon  his  package  proper  information  of  the 
danger  which  is  to  be  apprehended  by  the 
party  who  uses  the  article,  and  if  you  find 
In  this  case,  gentlemen  of  the  Jury,  that  the 
article  in  question  was  liable,  when  mixed 
with  air,  to  explode  or  to  ignite  under  cir- 
cumstances which  would  l)ecome  a  menace  to 
those  ignorant  of  its  properties,  then  I  charge 
you,  gentlemen  of  the  Jury,  that  It  was  the 
duty  of  the  manufacturer  of  the  article  to 
put  a  proper  and  sufficient  warning  as  to  its 
contents  upon  the  can.  Now,  there  are  some 
of  us,  gentlemen  of  the  Jury,  I  think,  on 
opening  of  that  can,  would  have  been  aware 
of  its  contents.  Those  who  have  used  naph- 
tha for  any  purpose,  doubtless,  have  recogniz- 
ed the  odor  of  naphtha,  or  known  that  it  was 
one  of  the  lighter  constituents  of  crude  pe- 
troleum, and  perhaps,  gentlemen,  we  might 
not  have  used  the  article  in  such  a  manner 
as  to  produce  an  injury ;  but  unless  you  find 
In  this  case,  gentlemen  of  the  Jury,  that  the 
plaintiff  had,  or  ought  to  have  had,  that 
knowledge,  then  unquestionably,  if  she  was 
injured  in  the  Innocent  use  of  the  article,  in 
the  manner  in  which  the  counsel  has  clalme<\ 
in  this  case,  under  those  circumstances,  geii 
tiemen,  she  would  be  entitled  to  recover  such 
damages  as  would  compensate  her  for  the  in- 
juries which  she  has  sustained.  Now  I  do 
not  mean  to  say,  from  what  I  have  said, 


Digitized  by 


Google 


266 


122  NORTHWESTERN  BE70RTEB. 


(Mlcb. 


that  the  accident  occurred  in  the  manner  in 
which  she  has  detailed,  because,  I  think,  I 
would  be  intruding  upon  yonr  province,  if 
I  did.  It  is  possible  that  yon  should  find 
in  this  case,  gentlemen  of  the  Jury,  that  the 
explosion  may  have  come  from  a  leakage 
In  the  can  itself,  and  that  that  was  the  proxi- 
mate cause  of  the  injury.  It  Is  possible,  gen- 
tlemen of  the  Jury,  tbaf  you  may  disbelieve 
the  testimony  of  the  plalntifT  as  to  the  meth- 
od of  the  injury,  and  so,  gentlemen  of  the 
Jury,  find  that  the  defendant  Is  not  responsi- 
ble In  any  way  for  the  damage  which  occur- 
red ;  but  I  think  it  belongs  to  you,  from  the 
evidence  which  has  been  adduced  before  you. 
to  say,  if  In  your  Judgment  you  see  fit,  that 
she  was  injured  by  reason  of  the  fact  that 
no  warning  was  given  of  the  nature  of  the 
contents  of  the  package — that  is,  of  the  dan- 
gerous  nature — I  may  say,  if  you  find  it  to 
be  dangerous,  of  the  contents  of  the  package, 
and  you  may  find  that,  without  negligence 
on  her  part,  sh?  was  injured  in  the  manner 
in  which  she  has  detailed.  *  *  *  If  the 
defendant  be  liable  for  negligence,  and  it 
occurs  either  from  friction,  or,  as  I  say — 
you  have  beard  the  testimony  that  It  could 
not  occur  in  that  way — or  from  the  striking 
of  a  match,  or  from  the  gas  which  still  re- 
mained lit  upon  the  stove,  then  I  say  to  you, 
no  matter  if  it  occurred  in  those  ways.  If  you 
find  that  the  sale  of  the  article  without  prop- 
er warning  was  the  proximate  cause  of  the 
injury,  and  she  did  not  contribute  thereto, 
whether  it  occurred  in  any  of  these  ways, 
still  the  defendant  would  be  liable." 

Errors  are  assigned  upon  the  instructions 
so  given.  Errors  are  assigned  upon  the  con- 
duct of  the  attorney  for  plaintiff  and  upon 
statements  made  by  him  to  and  in  the  pres- 
ence of  the  Jury.  Three  special  questions, 
viz.:  "First.  Was  there  any  Ignition  of  the 
compound  known  as  6-5-4  by  friction  or 
through  spontaneous  combustion,  at  the  time 
plaintiff  alleges  she  was  injured?  If  so, 
which?  Second.  Was  the  compound  6-6-4, 
while  being  used  In  the  manner  described  by 
plaintiff  in  her  testimony,  Ignited  by  fric- 
tion? Third.  Does  the  Jury  know  how  the 
compound  6-5-4  was  ignited  when  being  used 
by  plaintiff  at  the  time  she  claims  she  was 
injured?" — were  framed  by  counsel  for  de- 
fendant "The  Court:  I  am  asked  to  sub- 
mit three  special  questions  to  the  Jury.  I 
think  they  are  inclusive,  and  refuse  them  for 
that  reason.    Note  an  exception." 

Counsel  for  defendant  presented  requests 
to  charge,  which  were  refused ;  the  sixth  and 
seventh  of  them  being:  "(C)  I  charge  you  In 
this  case  that  there  Is  no  evidence,  except  that 
given  by  Mrs.  Clement  and  her  sister,  Mrs. 
Hawkins,  as  to  how  the  accident  occurred. 
Mrs.  Hawkins  testified  that  previous  to  wash- 
ing the  dishes  she  went  to  the  gas  stove  for 
the  purpose  of  turning  off  the  gas  because 
she  found  the  water  hot  enough.  When  she 
examined  the  stove,  she  found  that  the  gas 
had  already  been  turned  off  and  positively 


swore  that  there  was  no  flame.  Mrs.  Cle- 
ment, the  plaintiff,  has  testified:  That  she 
turned  off  the  gas  before  nsing  the  enamel  or 
compound  6-5-^  That  after  turning  off  the 
gas  she  opened  the  can  and  then  proceeded 
to  spread  a  portion  of  the  contents  on  the 
stove,  covering  two  or  three  sides  before 
there  was  any  difllculty.  That  the  stove  was 
not  even  hot.  That  she  purposely  refrained 
from  spreading  the  mixture  on  that  part  of 
the  stove  closest  to  which  the  fire  had  been, 
in  order  to  give  it  a  chance  to  cool.  That 
while  spreading  the  mixture  or  compound  she 
did  not  notice  any  heat  Both  she  and  her 
sister  were  positive  in  their  statements-  re- 
garding it  That  while  spreading  the  mix- 
ture or  enamel  In  this  manner,  through  fric- 
tion, there  was  a  flre  or  flame  or  explosion. 
That  the  contents  of  the  can  that  she  was 
holding  in  her  hand  burst  into  a  flame  that 
reached  either  to  or  near  the  ceiling  of  the 
room.  Unless  you  believe  this  testimony  of 
the  plaintiff  and  her  Bister,  I  charge  you  that 
your  verdict  must  be  for  the  defendant.  (7) 
I  charge  you  that  the  theory  of  the  plaintiff 
in  this  case,  as  evidenced  by  her  testimony 
and  that  of  her  sister,  the  only  persons  pres- 
ent and  in  the  bouse  when  the  accident  oc- 
curred on  the  date  in  question.  Is  that  while 
using  the  compound  or  mixture  6-5-4  on  a 
stove  which  was  not  red  hot,  that  It,  the  mix- 
ture, or  compound,  ignited  or  exploded  and 
caused  her  to  be  burned.  If  you  find  that 
this  theory  is  not  sustained  by  the  proofs  in 
this  case  by  a  fair  preponderance  of  the  evi- 
dence, then  your  verdict  shall  be  for  the  de- 
fendant 'No  cause  of  action"* — and  errors 
are  assigned  upon  the  refusal  of  the  court 
to  give  the  same. 

Argued  before  MONTGOMERY.  OSTRAN- 
DER,  HOOKER,  MOORE,  and  BROOKE,  JJ. 

Edwin  Henderson  and  Alex  J.  Groesbeck, 
for  appella'nt  James  H.  Pound,  for  appel- 
lee. 

OSTRANDER,  X  (after  stating  the  facta 
as  above).  There  was  testimony  which  war- 
ranted the  Jury  in  finding  that  it  was  neg- 
ligent for  defendant  to  place  upon  the  mar- 
ket for  sale,  for  coumon  domestic  use,  the 
particular  compound  or  composition,  with- 
out notifying  the  public,  by  a  proper  label  or 
otherwise,  of  its  dangerous  character.  The 
applicable  rule  of  law  is  sufficiently  stated  in 
the  opinion  In  Clement  t.  Crosby  &  Co.,  148 
Mich.  293,  296,  297,  111  N.  W.  745.  10  L.  R. 
A.  (N.  S.)  588. 

The  single  meritorious  question  remaining, 
affecting  the  right  to  a  recovery  by  plaintiff, 
is  whether,  having  testified  without  qualifi- 
cation that  there  was  no  flre  or  flame  or  hot 
iron  in  the  range,  and  that  friction  caused 
the  compound  to  Ig^nlte,  she  bos  failed  to 
prove  that  defendant's  negligence  was  the 
cause  of  her  injury.  We  shall  assume  (I 
think  are  required  to  assume)  that  the  Jury 
did  not  believe  that  the  mere  friction  arising 
from  spreading  the  enamel  on  iron  with  a 


Digitized  by 


Google 


MidL) 


HUNTER  V.  DWIGHT  TP, 


267 


brusb  caused  the  bmsb  or  the  compound  to 
ignite,  and  that  they  did  belieye  that  the 
brush,  or  vapor  from  the  compound,  reached 
and  was  Ignited  by  a  flame.  It  Is  a  matter 
of  common  knowledge  with  those  who  have 
ased  gas  ranges  that  a  very  small  Jet  of 
burning  gas,  not  easily  observed,  will  some- 
times be  found  In  a  burner  from  which  the 
supply  of  gas  Is  supposed  to  be  completely 
turned  off.  It  Is  true  that.  In  the  only  count 
of  the  declaration  under  which  we  consider 
the  plaintiff  has  the  right  to  recover,  she 
avers  that,  while  putting  the  composition  up- 
on the  range  "In  a  careful,  prudent,  and 
gentle  manner,  with  a  flat  bristle  brush,  the 
composition  or  substance  suddenly  ignited 
from  the  friction  of  spreading  It  and  sudden- 
ly became  a  burning  flame,  shooting  out  and 
np  from  plalntUTs  gas  range  aforesaid."  She 
also  avers  that  the  compound  was  a  highly 
inflammable,  volatile,  dangerous  mixture,  and 
avers  the  duty  of  defendant  to  have  been  not 
to  place  the  substance  upon  the  market  with- 
out warning  as  to  its  dangerous  character. 
The  pleading  Is  Inartificial  and  loose ;  but  in 
essence  it  avers  a  speclflc  duty,  a  negligent 
breach  of  that  duty,  and,  as  a  consequence, 
an  injury.  The  averment  that  the  flame  was 
caused  In  a  particular  way  and  the  testi- 
mony tn  support  of  the  averment,  when  con- 
sidered In  connection  with  the  testimony,  pro- 
duced by  plaintiff,  that  the  compound  could 
not  have  so  ignited,  might  well  have  induced 
a  belief  that  plaintiff  was  not  truthful.  On 
the  contrary,  and  depending  upon  the  multi- 
tude of  things  which  affect  the  judgment  as 
to  the  truthfulness  of  a  witness,  the  belief 
might  be  engendered  that  plaintiff  honestly 
supposed  there  was  no  flame  In  or  about  the 
range,  that  the  vapor  Ignited,  and  that  she- 
was  truthfully  describing  the  occurrence  as 
It  appeared  to  her.  Assuming  there  was  a 
variance  between  the  declaration  and  the 
proof  upon  the  point  of  how  ignition  was 
caused.  It  Is  not  vital.  The  duty  of  plain- 
tiff is  the  same,  the  breach  of  that  duty,  as 
alleged,  and  resulting  Injury  to  the  plaintiff — 
matters  to  be  proven  to  the  satisfaction  of 
the  Jury.  There  is  no  claim  made,  and  In 
view  of  all  the  allegations  of  the  declaration 
It  cannot  be  supposed,  that  the  defendant 
was  not  properly  Informed  concerning  the 
real  issue  to  be  tried.  No  defense  which 
would  have  been  open  If  the  declaration  had 
alleged  that  plaintiff  supposed  there  was 
no  flame  in  the  stove,  but  that  there  must 
have  been  an  unobserved  flame  which  ignit- 
ed the  vapor  or  compound,  was  denied  or 
abridged.  Indeed,  she  waa  not  bound  to  aver 
or  to  prove  Just  what  caused  the  compound 
to  Ignite  If  she  was  using  it  as  directed  and 
without  negligence  on  her  part  It  is  not 
claimed  that  plaintiff  was  guilty  of  any  neg- 
ligence contributing  to  her  Injury.  The  point 
la  ruled.  In  principle,  by  McCaslin  v.  Railway 
Co.,  93  Mich.  553,   55C.  557,  53  N.  W.  724. 


The  case  la  unlike  Schlndler  r.  Hallway  Co., 
77  Mich.  136,  43  N.  W.  911.  The  opinion 
delivered  In  the  case  last  referred  to  con- 
tains, beginning  on  page  152  (page  916),  a  dis- 
cussion which  is  pertinent  here.  The  court 
should  not  have  directed  a  verdict  The 
special  questions  proposed  were  Inconclusive 
of  the  real  issue.  No  error  is  pointed  out 
In  the  charge  of  the  court. 

We  have  given  careful  consideration  to 
the  remarks  made  by  the  attorney  for  plain- 
tiff to  which  exceptions  were  taken.  Many 
of  them  were  extravagant  With  a  single 
exception,  there  appears  to  have  been  some 
foundation  for  them  in  the  testimony.  The 
statement:  "She  brings  this  suit,  and  de- 
murrer after  demurrer  comes  in,  and  twice 
we  have  gone  to  Lansing  in  regard  to  this 
matter,  and  now  we  are  down  here;  it  took 
all  those  Journeys  to  come  here,  gentlemen 
of  the  Jury,"  etc. — is  one  which  cannot  be 
defended.  Plaintiff  herself,  unsuccessfully, 
appealed  from  the  order  sustaining  the  de- 
murrer Interposed  by  the  merchant  of  whom 
the  polish  was  purchased.  It  Is  presumed 
that  such  remarks  made  to  a  Jury  are  made 
for  the  purpose  of  influencing  them.  The 
plaintiff  was  badly  Injured.  She  recovered 
a  verdict  for  $1,500.  The  testimony  leads 
to  but  one  conclusion,  and  that  the  one  which 
was  reached.  Under  the  circumstances.  It 
may  be  and  should  be  said  that  defendant 
waa  not  prejudiced  by  the  remarks  of  coun- 
sel. 

The  Judgment  Is  affirmed. 


HUNTER  V.  DWIGHT  TP. 
(Supreme  Court  of  Michigan.    July  15,  1909.) 

1.  Appeal  ano  Error  (|  753*)— Confohmitt 
OF  Briefs  to  Rule  op  Codrt. 

An  appellant's  brief  should  conform  to  Su- 
preme Court  Rule  40  (C3  N.  W.  viii)  in  stat- 
ing the  errors  relied  on. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  S  3003 ;   Dec.  Dig.  i  758.*] 

2.  Bridges  (§  39*)— Failure  to  Repair— Li- 
ABiLiTT  OF  Township. 

A  town,  which  has  agreed  with  an  adjoin- 
ing township  to  divide  a  line  road  for  the  pur- 
pose of  repair,  and  afterwards  takes  charge  of 
Its  part  of  the  way  and  maintains  a  bridge 
thereon  for  many  years,  is  liable  for  neglect 
to  repair,  though  it  failed  to  properly  record 
evidence  of  the  contract,  as  required  by  the 
statute  in  force  at  the  time. 

[Ed.  Note.— For  other  cases,  see  Bridges,  Dec. 
Dig.  :  39.»] 

3.  Bridges  (|  46*)— Question  for  Jubt— No- 
tice OF  Dangerous  Condition. 

In  an  action  against  a  township  for  In- 
juries sustained  on  a  bridge,  evidence  as  to 
notice  of  its  dangerous  condition  lield  sufficient 
to  require  submission  to  the  jury. 

[Ed.    Note.— For    other    cases,    see    Bridges, 
Cent  Dig.  S  120 ;   Dec.  Dig.  §  46.*] 

4.  Bridges  (J  46*)- Actions  fob  Injuries- 
Variance  IN  Pleading  and  Proof. 

In  an  action  against  a  township,  the  dec- 
laration alleged  that  a  bridge  maintained  by  it 


*For  otlier  cases  sea  saina  toplo  and  section  NUMBER  In  Dee.  it  Am.  Digs.  1907  to  date,  &  Reporter  IndezM 


Digitized  by  LjOOQIC 


268 


122  NOBTHWESTERN  BEPORTEB. 


(UlCBL 


was  M  defeedTe  becanae  of  loose  and  brcAcn 
planka  that  plaintiff's  horse  in  stepping  on 
them  became  frightened,  and  because  of  the 
condition  of  the  planks  the  horse  jumped,  and 
the  wagon  was  suddenly  checked,  and  plain- 
tiff was  thrown  oat  The  evidence  showed  that 
the  horse's  feet  went  through  the  floor  by  rea- 
son of  the  defects  in  the  planking,  and  that  be 
plonged  and  fell.  Held,  that  the  declaration 
sufficiently  alleged  the  nature  and  cause  of  the 
accident,  and  the  fact  that  the  evidence  did  not 
show  that  the  horse  sprang  forward  as  alleged 
was  not  fatal ;  there  being  evidence  that  the 
wagon  was  suddenly  checked  and  that  the  in- 
jury was  due  to  the  negligence  alleged. 

(Ed.  Note.— For  other  cases,  see  Bridges,  Cent. 
Dig.  I  114;   Dec.  Dig.  i  46.*] 
S.  Bbidoes  a  46*)— Action  fob  Injubies— Ih- 

BTBucnons. 

In  an  action  for  injuries,  tbe  declaration 
alleged  that  plaintiff  was  relying  on  the  fright 
of  bis  horse  arisitig  from  the  defective  plank- 
ing of  a  bridge.  The  proof  showed  that  the 
horse's  feet  went  through  the  planking  causing 
tbe  injury.  The  court  instructed  that  tbe  dec- 
laration alleged  broken  planks  and  a  hole  in 
the  bridge,  so  that  when  the  horse  passed  over 
tliem  tbe  planks  would  sink  down,  and  that 
from  this  condition  plaintiff's  horse  was  caught 
and  plunged,  and  that  by  tbe  action  of  the 
horse  in  those  conditions  he  was  thrown,  and 
tbe  injury  resulted.  Held,  tliat  an  instruction 
tliat  plaintiff  must  by  a  preponderance  of  evi- 
dence sustain  bis  theory  of  tbe  manner  in  which 
be  was  injured,  and  that  any  radical  departure 
from  that  theory  would  relieve  defendant  from 
liability  because  it  had  had  no  notice  of  any 
other  claim,  was  not  prejudicial  to  defendant. 

[Ed.  Note.— For  other  cases,  see  Bridges, 
Cent  Dig.  I  121 ;    Dec.  Dig.  i  46.*] 

Error  to  Circuit  Court,  Huron  County; 
Watson  Beacli,  Judge. 

Action  by  William  H.  Hunter  against  tbe 
Township  of  Dwight.  There  was  a  judg- 
ment for  plaintiff,  and  defendant  brings  er- 
ror.   Afflrmed. 

Argued  before  BLAIR,  0.  J.,  and  MONT- 
GOMERY, OSTRANDER,  HOOKER,  and 
BROOKE,  JJ. 

James  H.  Hall  (Edward  Cablll,  of  coun- 
sel), for  appellant.  George  M.  Clark  (Wil- 
bur J.  Beach,  of  counsel),  for  appellee. 

HOOKER,  J.  The  plaintiff  recovered  a 
verdict  for  $1,000  against  the  defendant  town- 
ship for  Injuries  sustained  upon  a  bridge,  and 
defendant  has  appealed. 

The  appellant's  brief  does  not  conform  to 
the  requirement  of  Supreme  Court  Rule  40 
(68  N.  W.  vlil)  In  the  matter  of  stating  the 
errors  relied  on.  See  Ferguson  t.  Wilson,  122 
Mich.  88,  80  N.  W.  1006,  80  Am.  St  Rep.  543 ; 
Carmer  v.  Hubbard,  123  Mich.  336,  82  N.  W. 
64;  Jones  t.  C!ody,  132  Mich.  14,  92  N.  W. 
495,  62  li.  R.  A-  160;  People  v.  Cole,  139 
Mich.  317,  102  N.  W.  856,  and  cases  cited; 
People  V.  Peck,  139  Mich.  680,  103  N.  W.  178; 
Monger  t.  New  Era  Ass'n,  145  Mich.  684, 
108  N.  W.  1111 ;  Eberts  v.  Detroit,  151  Mich. 
204,  116  N.  W.  43;  Haden  v.  Closser,  153 
Mich.  182,  116  N.  W.  1001.  As  we  have  of- 
ten said,  such  omissions  are  productive  of 
much  inconvenience  to  the  court  and  are 
hazardous  to  the  Interest  of  appellants. 


Tbe  plaintiff  was  a  man  carrier,  and  the 
bridge  in  question  was  upon  a  liigfaway  upon 
the  township  line  between  the  townships  of 
Dwight  and  Huron.  The  action  was  brought 
against  the  defendant  upon  the  theory  that  it 
was  under  obligation  to,  and  did  nndertaka 
to,  keep  the  way  in  r^mir,  and  was  liable  for 
neglecting  to  do  so.  The  defendant  denied 
such  duty  and  liability,  and  this  raises  the 
first,  question  discussed.  Tbe  defect  In  the 
bridge,  as  all^^ed  In  tbe  declaration,  was 
that:  "On,  to  wit.  tbe  22d  day  of  May,  A.  D. 
1905,  and  for  a  long  space  of  time  prior  to 
said  date,  carelessly  and  negligently  caused 
said  bridge  and  allowed  said  bridge  to  be 
and  remain  in  a  condition  out  of  repair 
and  In  a  condition  not  reasonably  safe  and 
fit  for  public  travel,  in  this,  the  top  of  said 
bridge,  liefore  the  time  last  above  mention- 
ed, having  been  made  of  boards  or  planks 
supported  by  stringers  of  wood,  the  said 
defendant,  at  the  time  of  the  committing 
of  tbe  grievance,  herein  mentioned,  and  for 
a  long  space  of  time  prior  to  said  date, 
carelessly  and  negligently  permitted  and  al- 
lowed a  part  or  all  of  the  planks  on  said 
bridge  to  l>ecome  and  be  loose  from  the 
stringers,  and  carelessly  and  negligently  al- 
lowed a  part  of  the  planks  on  said  bridge  to 
become  and  be  broken  and  dlq>Iaced  so  that 
said  plank  so  broken  and  displaced  was 
not  properly  supported  by  tbe  stringers  of 
said  bridge  leaving  the  loose  ends  of  said 
plank  so  broken  and  displaced  not  supported 
by  the  stringers  of  said  bridge  and  not  fas- 
tened to  the  stringers  of  said  bridge,  careless- 
ly and  negligently  allowed  a.  part  of  the 
planks  on  said  bridge  to  be  loose  and  unsup- 
ported so  tliat  in  public  travel  when  subject- 
ed to  the  weight  of  horses,  one  end  of  said 
planks  would  go  down  and  the  other  end  fly 
up,  carelessly  and  negligently  allowed  holes 
or  openings  to  be  and  remain  unprotected  di- 
rectly In  the  traveled  part  of  said  bridge." 
A  second  count  states  that:  "On  account  of 
the  loose  and  broken  plank  and  the  danger- 
ous condition  of  said  bridge,  the  horse  in 
attempting  to  cross  over  said  bridge  liecame 
frightened  and  sprang  violently  forward,  and 
then  and  there,  and  because  of  the  entangle- 
ment and  obstacles  to  free  passage  over  said 
bridge,  constituted  by  the  loose,  broken,  and 
projecting  condition  of  said  plank,  plaintiff's 
wagon  was  suddenly  checked,  and  plaintiff 
thereby  pitched,  jerked,  or  thrown  forward 
in  his  mail  wagon  with  great  violence."  The 
plaintiff  testified  to  the  condition  of  the 
bridge  at  the  time, of  the  accident  (May  22, 
1905)  that  It  was  the  same  as  in  September 
and  Octolier,  1904,  and  that  he  informed  th« 
officials  of  the  township  that  it  was  danger- 
ous In  September,  1904,  and  it  Is  contended 
in  plaintiff's  behalf  that  tliere  was  testimony 
tending  to  show  actual  and  constructive  no- 
tice. This  is  the  second  question  raised. 
Appellant's  counsel  contend  that  the  tes- 


•For  other  eases  see  lama  toplo  and  lecUon  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  data,  *  Raportar  ladeza 


Digitized  by  LjOOQIC 


Mlcb.) 


HUNTER  V.  DWIGHT  TP. 


2G9 


Umony  fails  to  show  that  the  Injury  was  dae 
to  the  negligence  alleged,  and  that  the  trial 
Jud^  should  have  directed  a  verdict  for  the 
dei'eudant  They  also  assign  error  upon  the 
following  language  of  the  charge:  "Now  the 
plaintlfT  has  charged  in  his  declaration  cer- 
tain acts  of  negligence  and  given  a  descrip- 
tion of  the  manner  in  which  the  bridge  was 
defective  and  the  manner  in  which  he  claims 
that  it  caused  his  injury.  He  must  be  held 
In  his  proofs  to  something  approximating  the 
condition  which  he  states  in  his  declaration." 
This  should  be  read  in  connection  with  what 
followed  it  in  the  charge:  "As  I  understand 
the  declaration,  he  alleges  that  there  was  a 
broken  plank  and  a  hole  in  the  bridge,  and 
that  the  bridge,  the  planks  of  the  bridge,  and 
the  sleepers  were  in  that  condition  that  when 
a  vehicle  and  horse  passed  over  them  they 
would  sink  down.  The  plaintiff  alleges  that 
from  this  condition  his  horse  was  caught, 
and  plunged,  tipped  up  the  plank,  and  first 
his  front  leg  and  then  his  hind  leg  went  into 
the  hole,  and  that  in  the  plunging  and  the 
violence  of  the  horse's  actions  in  those  con- 
ditions, and  In  his  attempt  to  save  himself 
and  control  him,  he  was  thrown  in  the  man- 
ner In  which  he  describes  in  his  testimony, 
and  that  as  a  result  he  discovered  immediate- 
ly after  that  he  was  ruptured.  Now  I  have 
said  to  you  that  the  plaintilT  must  be  held, 
if  he  is  to  recover,  to  produce  to  you  a  pre- 
ponderance of  the  testimony  sustaining  that 
theory  of  the  manner  In  which  he  was  injur- 
ed. Any  radical  departure  from  that  theory 
would  not  entitle  him  to  recover  because  the 
township  would  have  no  notice  of  any  other 
claim  as  to  the  manner  in  which  the  injury 
occurred."  A  motion  for  new  trial  was  de- 
nied, and  counsel  assign  error  upon  the  or- 
der. 

1.  Defendant's  duty  to  keep -bridge  in  re- 
pair: 

As  already  stated,  the  bridge  in  question 
was  upon  a  line  of  road  between  two  town- 
ships which  was  in  existence  in  1879.  At 
that  time  the  law  provided:  "Upon  laying 
out,  altering  or  discontinuing  a  highway  on 
the  line  between  adjoining  townships,  or  up- 
on determining  what  part  of  such  highway 
shall  be  made -and  repaired  by  each  town- 
ship, the  commissioners  of  such  adjoining 
townships  shall  act  jointly,  and  application 
may  be  made  to  the  commissioners  of  either 
township,  who  shall  notify  the  commission- 
ers of  the  adjoining  township  of  the  time  and 
place  of  meeting;  and  said  commissioners 
of  adjoining  townships  shall  proceed  as  be- 
fore provided  and  their  return  shall  be  filed 
In  the  oflice  of  the  township  clerk  of  each 
township,  and  each  township  shall  have  all 
the  right  and  be  subject  to  all  the  liabilities, 
in  relation  to  the  part  of  such  highway  to  be 
made  and  repaired  by  such  township,  as  if 
tl'e  same  was  located  wholly  in  such  town- 
ship." The  clerk  of  the  defendant  township 
of  Dwight  produced  a  record  from  his  ofiice 
containing  the  following:    "March  25,  1879. 


We  the  undersigned  commissioners  of  the 
township  of  Dwight,  and  the  township  of 
Huron,  county  of  Huron,  state  of  Michigan, 
do  hereby  divide  the  town  line  Into  half-mile 
beats  commencing  at  the  north  end  of  the 
township  line  between  Dwig&t  and  Huron 
running  south  six  miles,  which  is  the  extent 
of  said  road,  Dwight  taking  the  first  half 
mile  commencing  at  the  northeast  comer  of 
section  1  running  southward,  Huron  the  next 
half  mile,  and  thence  each  alternate  half 
mile  afterwards.  Thomas  Sullivan,  Com- 
missioner of  Highways."  The  brief  of  plain- 
tiff states  that  this  writing  conformed  to  an 
oral  agreement  made  at  the  time  between  the 
commissioners  of  the  townships  of  Huron  and 
Dwight,  and  that  under  such  arrangement  de- 
fendant township  took  charge  of  and  main- 
tained its  portion,  including  the  bridge.  The 
brief  omits  any  reference  to  the  record,  and 
we  take  the  opportunity  of  saying  that  such 
omissions  are  productive  of  much  annoyance 
and  trouble  to  the  court,  and  to  request  the 
exercise  of  greater  care  by  counsel  in  this 
particular. 

Shark  v.  Evergreen,  67  Mich.  443,  36  N.  W. 
67,  is  a  similar  case  to  this.  There  a  state 
road  upon  a  town  line  was  divided  by  com- 
missioners by  agreement,  and  each  town- 
ship afterwards  cared  for  its  allotted  share 
for  more  than  20  years,  although  the  agree- 
ment was  never  recorded.  It  was  held  that 
the  road  was  within  the  statutes  following: 
"Whenever  a  line  road  shall  have  been  laid 
out  and  established  pursuant  to  the  last  two 
preceding  sections,  the  officers  or  authori- 
ty having  Jurisdiction  in  the  premises  shall 
forthwith  Jointly  determine  as  to  the  time 
when  the  same  shall  be  opened  and  improved, 
and  shall  at  the  same  time  determine  and  al- 
lot what  portion  shall  be  opened.  Improved 
and  maintained  by  either  of  such  townships 
or  municipalities;  and  such  township  or  mu- 
nicipality shall  have  all  the  rights,  and  be 
subject  to  all  the  liabilities,  in  relation  to  the 
part  of  such  road  so  allotted,  as  If  the  same 
was  located  wholly  in  such  township  or  mn- 
nldpality,  and  the  damages  which  may  be 
assessed  in  any  case,  together  with  the  costs 
and  expenses  of  the  proceedings,  shall  be  ap- 
portioned by  the  Joint  action  of  such  authori- 
ties to,  and  paid  by,  the  townships  or  munic- 
ipal corporations  on  the  line  t>etween  which 
said  line  road  may  be  located,  in  proportion 
to  the  benefit  to  be  derived  therefrom  by  such 
townships  or  municipal  corporations."  How. 
Ann.  St.  i  1307.  "All  state  roads,  which  are 
now  or  may  hereafter  be  laid  out  in  this 
state,  shall  be  under  the  care  of  the  commis- 
sioner of  highways  of  the  several  townships, 
through  which  the  same  shall  pass,  and  sub- 
ject to  be  by  them  opened  and  kept  in  repair 
in  the  same  manner  as  township  roads,  but 
such  state  roads  shall  be  altered  or  discon- 
tinued only  by  the  boards  of  supervisors  of 
the  counties  In  which  they  may  be  situated." 
How.  Ann.  St.  (  1321.  How.  Ann.  St.  { 
1442:    "Any  person  or  persons  sustaining  bodi- 


Digitized  by  VjOOQ  IC 


270 


122  NORTHWESTEEN  REPORTER. 


(Mich. 


ly  Injury  upon  any  of  the  public  highways  or 
BtreetB  In  this  state,  by  reason  of  neglect  to 
keep  such  public  highways  or  streets,  and 
all  bridges,  cross-walks,  and  culverts,  on  the 
same.  In  good  repair,  and  in  a  condition  rea- 
sonably safe  and  fit  for  travel,  by  the  town- 
ship, village,  city  or  corporation,  whose  cor- 
porate authority  extends  over  such  public 
highway,  street,  bridge,  cross-walk,  or  cul- 
vert, and  whose  duty  It  Is  to  keep  the  same 
in  good  repair,  such  township,  village,  or 
city  or  corporation  shall  be  liable  to  and 
shall  pay  to  the  person  or  persons  so  Injured 
or  disabled  just  damages,  to  be  recovered  In 
an  action  of  trespass  on  the  case  before  any 
court  of  competent  jurisdiction."  The  only 
substantial  difference  between  that  case  and 
this  Is  the  requirement  that  such  agreement 
shall  be  recorded. 

Whether  this  agreement  was  In  duplicate, 
each  township  recording  a  copy  signed  only 
by  Its  own  commissioner,  was  not  shown; 
but  such  an  Instrument,  signed  only  by  Its 
own  commission,  was  recorded  In  Dwlght 
township,  and  It  afterwards  took  charge  of 
Its  part  of  the  way.  We  are  of  the  opinion 
that  It  should  be  held  liable  for  derelictions 
of  duty  In  regard  to  repairs.  Sharp  v.  Ever- 
green, supra ;  Brophy  v.  Schlndler,  126  Mich. 
350,  85  N.  W.  1114;  Blgelow  v.  Brooks,  119 
Mich.  216,  77  N.  W.  810;  Delta  Lum  Co.  v. 
Auditors,  71  Mich.  672,  40  N.  W.  1 ;  Wrought 
Iron  Bridge  C!o.  t.  Jasper,  68  Mich.  441,  86 
N.  W.  213.  The  townships  not  only  had  the 
right,  Jt>ut  It  was  their  duty  (through  their 
commissioners),  to  divide  the  road.  They  did 
this  by  agreement  and  proceeded  to  carry 
out  Its  terms.  Dwlght  has  maintained  this 
bridge  ever  since,  and  now  seeks  to  take  ad- 
vantage of  Its  own  failure  to  properly  make 
record  evidence  of  the  contract.  If  It  be 
said  that  the  contract  was  not  binding,  be- 
cause not  made,  It  does  not  help  defendant, 
for  It  was  then  jointly  liable  with  Huron, 
Delta  C!o.  v.  And.,  71  Mich.  672,  40  N.  W.  1 ; 
Blgelow  T.  Brooks,  119  Mich.  209,  77  N.  W. 
810. 

2.  Notice: 

We  are  of  the  opinion  that  there  was  evi- 
dence of  notice  sufficient  to  require  submis- 
sion to  the  jury.  There  was  certainly  con- 
structive notice  that  the  planking  was  in 
bad  condition. 

8.  Variance: 

The  negligence  diarged  in  this  declaration 
Is,  In  substance,  that  defendant  maintained 
a  bridge  which,  by  reason  of  the  settling  of 
Its  foundations,  caused  some  of  the  stringers 
to  drop  down  from  two  to  six  inches,  so  that 
the  loose  plank  of  which  the  floor  of  the 
bridge  was  made  would  teeter  and  rattle 
when  a  horse  or  vehicle  went  over  them, 
and  that  there  was  a  bole  or  boles  In  the 
traveled  track  upon  said  bridge,  and  broken 
and  displaced  plank  In  the  floor  of  said 
bridge.  The  cause  of  the  Injury  appears  to 
be  (as  set  up  in  the  first  count)  that,  on  ac- 
count of  the  loose  and  broken  plank  and  dan- 


gerous condition  of  said  bridge  (as  hereinbe- 
fore described,  we  suppose),  the  horse  "be- 
came frightened  and  sprang  suddenly  for- 
ward with  great  violence,  and  because  of  his 
springing  suddenly  forward  as  aforesaid,  and 
before  plain  tlfC  could  regain  control  of  said 
horse,  and  because  of  the  loose  and  broken 
condition  of  said  plank  and  bridge,  the  plain- 
tiff's wagon  was  suddenly  checked,  and  the 
plaintiff  then  and  there  was  jerked,  pitched, 
or  thrown  forward"  and  injured.  The  proof 
failed  to  show  that  plaintiff's  horse  was 
frightened  and  sprang  forward;  but  It  did 
show  that  his  feet  went  through  the  bridge 
floor  by  reason  of  a  plank  breaking  or  tip- 
ping when  he  stepped  upon  it,  and  it  was 
possible  to  find  that  the  horse  got  both  fore 
and  back  feet  through,  that  he  fell  down,  and 
that  in  consequence  the  buggy  was  checked, 
which  would  not  have  been  the  effect  of  a 
spring  forward.  That  would  not  have  check- 
ed the  wagon  and  would  have  thrown  plain- 
tiff backward  Instead  of  forward.  The  im- 
portant allegation  Is  that  the  buggy  was  sud- 
denly checked,  throwing  plaintiff  forward. 
The  declaration  does  not  fully  explain  how 
this  was  done;  but  it  does  say  that  it  was 
due  to  the  broken  and  loose  plank  and  holes. 
We  are  of  the  opinion  that  this  declaration 
might  well  have  been  more  specific  In  the  de- 
scription of  the  accident,  but  think  it  alleg- 
es in  substance  the  nature  and  the  cause  of 
the  accident  The  fact  that  the  proof  does 
not  clearly  show  that  the  horse  first  became 
frightened  and  sprang  forward  is  not  fatal ; 
there  being  testimony  that  the  wagon  was 
suddenly  checked,  which  of  Itself  necessari- 
ly Implies  some  momentum,  and  an  obstacle 
to  Its  progress.  Perhaps  fright  is  inferable 
from  the  foUowlng:  Plaintiff  testified  that, 
as  the  horse  went  on  the  bridge,  he  got  a 
tight  hold  upon  the  lines,  that  the  horse 
seemed  to  watch  a  hole  in  the  bridge,  that 
when  she  stepped  on  the  plank  opposite  the 
hole  her  feet  went  down  by  reason  of  Its  giv- 
ing way,  and  in  another  place  plaintiff  stat- 
ed that  the  plank  turned  upon  edge  and  the 
horse's  feet  went  through,  her  head  down  to 
the  plank,  that  she  plunged  and  fell,  and  that 
occasioned  him  to  go  forward  against  the 
cover  of  the  rig.  The  horse  .rolled  over  and 
got  up. 

It  seems  clear  that  the  declaration  fairly 
apprised  defendant  that  plaintiff  was  relying 
upon  an  Injury  arising  from  the  fright  of  the 
horse  arising  from  the  existence  of  holes  and 
loose  plank.  The  proof  conclusively  showed 
that  the  horse's  feet  went  through  the  plank, 
causing  It  to  fall  and  plunge,  thus  causing  the 
Injury.  The  court  charged :  "Now  the  plain- 
tiff has  charged  in  his  declaration  certain 
acts  of  negligence  and  given  a  description  of 
the  manner  In  which  the  bridge  was  defect- 
ive, and  the  manner  in  which  he  claims  that 
It  caused  his  injury.  He  must  be  held  In  his 
proofs  to  something  approximating  the  con- 
dition which  he  states  in  his  declaration.  As 
I  understand  the  declaration,  he  alleges  that 


Digitized  by 


Google 


Mich.) 


LA  CHANCE  t.  MACHIA. 


271 


there  was  a  broken  plank  and  a  hole  In  the 
bridge,  and  that  the  bridge,  the  planks  of 
the  bridge,  and  the  sleepers  were  in  that  con- 
dition that  when  a  Tehicle  and  horse  passed 
over  tbem  they  would  sink  down.  The  plaln- 
tiCC  alleges  that  from  this  condition  his  horse 
was  caught  and  plunged,  tipping  up  the 
plank,  and  first  his  front  leg  and  then  his 
hind  leg  went  into  the  hole,  and  that  in  the 
plunging  and  the  violence  of  the  horse's  ac- 
tions in  those  conditions,  and  in  his  attempt 
to  saTO  himself  and-  control  him,  he  was 
thrown  in  the  manner  which  he  describes  in 
his  testimony,  and  that  as  a  result  he  dis- 
covered immediately  after  that  be  was  rup- 
tured. Now,  as  I  have  said  to  you,  the  plain- 
tiff must  be  hdd,  if  he  is  to  recover,  to  pro- 
duce to  you  a  preponderance  of  the  testimo- 
ny sustaining  that  theory  of  the  manner  in 
which  he  was  injured.  Any  radical  depar- 
ture from  that  theory  would  not  entitle  him 
to  recover  because  the  township  would  have 
no  notice  of  any  other  claim  as  to  the  man- 
ner in  which  the  injury  occurred."  We  think 
defendant  was  not  injured  by  this  instruc- 
tion. 

4.  Motion  for  new  trial : 

We  find  no  error  in  the  denial  of  the  mo- 
tion for  a  new  trial. 

The  Judgment  Is  affirmed. 


IiA  CHANCB  T.  MACHIA  et  al..  Board  of 

Canvassers. 
(Supreme  Court  of  Michigan.    July  15,  1909.) 
Mahsaitus  (§  3»)— Quo  Wabbanto  (8  11*)— 

TSIAI.    OF   TlTUt   DO    OlTICJt— EXJ^TENCB   OF 

Otheb  Rehedt. 

Quo  warranto,  not  mandamoa,  is  the  propr 
er  remedy  to  detennlne  the  title  to,  and  po»- 
session  oi,  a  public  office. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Cent.  Dig.  §  23;  Dec.  Dig.  J  3;*  Quo  War- 
ranto, Cent  Dig.  {  13;    Dec  Dig.  i  11.*] 

Certiorari  to  Circuit  Court,  Mackinac 
County;  Frank  Shepherd,  Judge. 

Application  for  mandamus,  on  the  rela- 
tion of  Benoni  La  Chance,  against  Charles 
Machla  and  another.  Board  of  County  Can- 
vassers of  Macldnac  County.  A  peremptory 
writ  was  granted  to  relator,  and  respond- 
ents bring  certiorari.    Reversed. 

Argued  before  BIAIR,  C.  J.,  and  GRANT, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Pallthorp  &  Hackney,  for  relator.  Reilley 
tc  McPhee  and  James  J.  Brown,  for  respond- 
ents. 

MOORB,  J.  This  case  is  brought  to  this 
court,  and  writ  of  certiorari  issued  for  the 
purpose  of  reviewing  the  order  of  the  lower 
coort  granting  a  peremptory  writ  of  manda- 
mus to  relator.  The  petition  shows  that  re- 
lator was  a  candidate  for  the  office  of  Judge 
of  probate  at  the  last  general  election  held 
in  Mackinac  county,  and  one  David  W.  Mur- 


ray was  the  opposing  candidate.  There  were 
no  other  candidates  for  said  office.  It  also 
shows  Mr.  Murray  asked  for  a  recount  wliicb 
was  granted.  The  petition  states  that  at  the 
time  said  David  W.  Murray  so  filed  his  said 
petition,  as  aforesaid,  with  the  said  board  of 
county  canvassers  praying  for  such  recount 
of  said  votes,  he  failed,  neglected,  and  re- 
fused to  deposit  the  sum  of  $10  for  each 
and  every  township,  ward,  and  voting  district 
in  which  he  petitioned  said  board  of  county 
canvassers  to  recount  the  votes  cast  for  said 
office  of  Judge  of  probate  with  the  clerk  of 
said  Mackinac  county  as  required  by  the 
statute  in  such  case  made  and  provided, 
and  at  no  time  did  the  said  David  W.  Mur- 
ray, or  did  any  other  person  for  him  and  In 
his  behalf,  ever  deposit  said  sum  of  money 
with  said  clerk  of  said  county,  or  any  other 
sum  or  sums  of  money  whatever,  for  the 
purpose  of  securing  a  recount  of  said  votes 
by  said  board  of  county  canvassers.  It  fur- 
ther states  that  the  said  lx>ard  of  county 
canvassers  did  proceed  to  recount  the  votes 
cast  in  the  townships  and  voting  precincts  re- 
ferred to  in  the  said  petition  of  said  David  W. 
Murray,  and  that  it  threw  out  the  votes  cast 
In  Hudson  township.  "And  said  board  of  coun- 
ty canvassers  did  unlawfully,  Illegally,  and 
wrongfully  issue,  or  cause  to  be  issued,  to  said 
David  W.  Murray  a  certificate  of  election  to 
the  said  office  of  Judge  of  probate,  and  did 
unlawfully,  wrongfully,  and  Illegally  refuse 
to  issue,  or  cause  to  be  issued,  to  your  pe- 
titioner the  certificate  of  election  to  said 
office,  as  he  was  rightfully  entitled  to  so  have 
Issued  to  him,  although  often  requested  by 
your  petitioner  so  to  do."  There  are  many 
other  things  stated  in  the  petition  to  which  it 
is  not  necessary  to  refer.  The  answer  of  the 
respondents,  among  other  things,  states  the 
following:  "Respondents  deny  that  at  the 
time  said  David  W.  Murray  so  filed  his  peti- 
tion David  W.  Murray  'failed,  neglected,  and 
refused'  to  deposit  the  sum  of  $10,  for  each 
and  every  township,  ward,  and  voting  dis- 
trict in  which  he  petitioned  the  board  of  can- 
vassers to  recount  the  votes  cast  for  said  of- 
fice of  Judge  of  probate,  with  the  clerk  of 
Mackinac  county,  and  avers  that  said  David 
W.  Murray  did  not  fail,  neglect,  or  refuse 
to  deposit  said  sum  of  money,  but  that  at  the 
time  of  filing  his  petition  for  a  recount  he 
proposed  and  offered  to  the  clerk  of  said 
board  to  deposit  the  sum  of  |50  for  the  five 
townships  in  which  he  had  asked  for  a  re- 
count; that  he  then  and  there  endeavored 
to  obtain  in  and  about  the  courthouse  where 
said  board  of  county  canvassers  were  con- 
vened a  blank  check  with  which  to  fill  in  the 
requisite  amount  for  the  purpose  of  signing 
and  delivering  to  the  said  clerk  as  the  de- 
posit required  by  the  statute  in  such  case 
made  and  provided,  but  could  obtain  none, 
whereupon  he  was  advised  by  said  clerk  that 
he  would  accept  of  said  David  W.  Murray's 


•For  otber  cases  •••  sun*  topio  ana  section  NUMBER  In  Deo.  *  Am.  Digs,  vm  to  date,  A  Reporter  ladazes 


Digitized  by 


Google 


272 


122  NORTHWESTERN  REPORTER. 


(Mich. 


promise  as  a  deposit  of  said  money,  and  that 
the  deposit  would  be  considered  as  made,  he, 
the  said  clerk,  treating  the  credit  of  said 
David  W.  Murray  the  same  as  the  actual 
deposit  of  said  money ;  that  said  David  W. 
Murray  then  stated  to  said  clerk  that  he 
wanted  to  be  sure  and  have  no  misunder- 
standing of  the  matter,  and  said  clerk  then 
and  there  stated  there  would  be  none,  and 
that  the  credit  and  word  of  said  David  Mur- 
ray, wblch  was  then  and  there  given  by  the 
said  David  W.  Murray  and  accepted  by  said 
clerk,  would  be  considered  and  treated  as  a 
deposit;  that  the  said  clerk  reported  the 
above  facts  to  the  board  of  county  canvas- 
sera,  and  all  the  members  thereof  expressed 
themselves  as  satisfied  with  the  arrangement, 
and,  considering  and  acting  upon  the  assump- 
tion and  theory  of  the  deposit  being  made, 
proceeded  with  the  recount  In  which  the  re* 
lator  then  and  there  participated  and  took 
part."  They  return  that  they  rejected  the 
ballots  cast  in  Hudson  township  because  they 
were  not  properly  initialed.  They  further 
return:  "That  they  have  duly  met  as  county 
canvassers  of  said  county,  and  that  said  re- 
lator duly  appeared  aud  took  part  in  the 
proceedings  In  reference  to  recount  on  the 
petition  of  the  said  David  W.  Murray  for 
the  ofllce  of  judge  of  probate  of  said  county, 
and  that  such  recount  was  duly  made,  and 
that  the  result  of  said  recount  was  pnbllcly 
stated,  and  that  the  return  was  made,  and 
that  a  certificate  of  election  was  duly  issued, 
or  caused  to  be  Issued  to  the  said  David  W. 
Murray,  and  that  the  said  David  W.  Murray 
has  In  pursuance  of  said  election  duly  taken 
possession  of  said  office  of  Judge  of  probate 
of  said  county,  and  Is  still  in  possession  of 
same,  and  is  reputed  to  be  Judge  of  probate 
of  said  county,  and  that  respondents  as  such 
county  canvassers  duly  adjourned  sine  die, 
and  that  they  have  no  authority  to  reconvene, 
and  that  they  have  become  functus  officio." 
A  hearing  was  had  before  the  circuit  Judge, 
who  was  of  the  opinion  that  the  failure  to 
deposit  the  fee  with  the  cl^rk  was  fatal,  and 
granted  a  writ  of  mandamus. 

It  will  be  olwerved  from  the  foregoing  that 
the  board  of  county  canvassers  actually  met, 
made  the  recount.  Issued  a  certificate  of  elec- 
tion, and  by  vlrtue'thereof  Mr.  Murray  enter- 
ed upon  the  duties  of  Judge  of  probate,  and 
is  now  acting  as  such  Judge.  Mr.  Murray 
is  not  made  a  party  to  this  proceeding.  A 
great  many  interesting  questions  are  pre- 
sented and  argued  by  counsel.  In  view  of 
the  situation  disclosed  by  the  record  the 
following  q,uotatlon  is  germane:  "In  deter- 
mining the  extent  to  which  the  courts  may 
properly  interfere  by  mandamus  with  ques- 
tions relating  to  the  title  to,  and  possession 
of,  public  offices,  it  Is  necessary  to  recur  to 
an  imi)ortant  principle,  frequently  asserted 
throughout  these  pages,  and  which  may  be 
properly  termed  the  controlling  principle  gov- 


erning the  entire  Jurisdiction  by  mandamus. 
It  is  that,  in  all  cases  where  other  adequate 
and  specific  remedy  exists  at  law  for  the 
grievance  complained  of,  the  writ  of  man- 
damus is  never  granted.  Applying  this  prin- 
ciple to  cases  where  relief  has  been  sought  to 
determine  disputed  questions  of  title  to,  and 
possession  of,  public  otdces,  the  courts  have 
almost  uniformly  refused  to  lend  their  aid 
by  mandamus,  since  the  remedy  by  informa- 
tion in  the  nature  of  a  quo  warranto  Is  Just- 
ly regarded  as  the  most  appropriate  and  effi- 
cacious remedy  for  testing  the  title  to  an  of- 
fice, as  well  as  the  right  to  the  possession 
and  exercise  of  the  franchise.  And  the  rule 
may  now  be  regarded  as  eetabllshed  by  an 
overwhelmihg  current  of  authority  that, 
when  an  office  is  already  filled  by  an  actual 
incumbent  exercising  the  functions  of  the 
office  de  facto  and  under  color  of  right,  man- 
damus will  not  lie  to  compel  the  admission 
of  another  claimant,  or  to  determine  the  dis- 
puted question  of  title.  In  all  such  cases  the 
party  aggrieved,  who  seeks  an  adjudication 
upon  his  alleged  title  and  right  of  posses- 
sion  to  the  office,  will  be  left  to  assert  hla 
rights  by  the  aid  of  an  information  in  the 
nature  of  a  quo  warranto,  which  is  the  only 
efficacious  and  specific  remedy  to  determine 
the  question  in  dispute.  And  whenever  it  is 
apparent  on  the  face  of  the  pleadings  that 
the  issue  presented  involves  a  determination 
as  to  the  person  properly  elected  to  an  office 
or  entitled  to  exercise  its  functions,  the  writ 
of  mandamus  will  be  withheld."  High  on 
Ex.  Leg.  Rem.  |  79.  See,  also.  People  v. 
Common  Council,  18  Mich.  338;  Schoo>  Dis- 
trict V.  Root,  61  Mich.  373,  28  N.  W.  132; 
Parlseau  v.  Board  of  Education,  96  Mich.  302, 
to  N.  W.  799;  Keeler  v.  Deo,  117  Mich.  1. 
76  N.  W.  145;  Ashwell  v.  Bullock,  122  Mich. 
620,  81  N.  W.  577;  Didclnson  t.  Board  of 
Canvassers,  148  Mich.  513,  111  N.  W.  1075. 

We  think  these  decisions  show  that  the 
order  granting  the  writ  of  mandamus  should 
be  vacated.    It  is  so  ordered. 

Reversed. 


POPPLETON  et  al.  r.  POPPLETON. 
(Supreme  Court  of  Michigan.    July  16,  1909.) 

1.  Wills  (g  82*)  —  Pbobate  —  Unbeasonabli 
DisposrriON  op  Pboperty. 

That  a  codicil  to  a  will  disinherits  the 
daughter  of  testatrix  does  not  show  an  iinrfv 
sonable  disposition  of  the  property,  where  the 
dauKbter  will,  on  the  codicil  being  admitted  to 
probate,  receive  about  as  much  as  the  oclier  chil- 
dren of  testatrix. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  S  208;   Dec  Kg.  {  82.*] 

2.  Wills  (§  330*)— Pbobate— Evidence— Iw- 

BTBUCTIONa. 

In  proceedings  to  contest  the  probate  of 
a  will  for  undue  influence  and  mental  incapac- 
ity, the  evidence  showed  that  testatrix  consid- 
ered a  trust  provision  therein  necessary  as  to 
the  contestant,  and  that  the  contestant  had  re- 


*I'3r  oUier  cases  see  same  topic  aod  section  NUMBBR  In  Dec.  A  Am.  Digs.  1S07  to  data,  *  Roportar  Indexes 


Digitized  by 


Google 


Mlcb.) 


POPPLETON  V.  POPPLETON. 


273 


moved  certain  personal  property  from  testatrix's 
bouse  before  the  making  of  a  <wdicil,  which  dis- 
inherited her  in  part.  The  court  instructed  that 
the  conduct  of  contestant  might  furnish  a  mo- 
tive for  the  making  of  the  codicil,  and,  if  pro- 
ponent of  the  will  was  a  trustee  of  the  trust 
fund  referred  to,  and  on  the  request  of  con- 
testant that  the  trust  provision  should  be  ab- 
rogated, and  for  the  return  of  certain  prop- 
erty, attempted  to  poison  the  mind  of  testa- 
trix, and  the  latter  disinherited  contestant  on 
the  ground  that  her  claim  to  certain  property 
was  unwarranted,  that  the  testatrix  was  uuder  | 
such  a  mental  delusion  as  would  avoid  the  codi- 
cil.   Held  not  prejudicial  to  contestant. 

TBd.  Note.— For  other  cases,  see  Wills,  Dec. 
Dig.  I  330.*] 

8.  Wills  (J  332*)— Probate— Contests— Un- 
due Influence— Instructions. 

Where,  in  proceedings  to  contest  the  probate 
of  a  will  and  codicils  on  the  ground  of^  undue 
influence,  the  evidence  showed  a  bitter  feeling 
between  contestant  and  proponent ;  that  pro- 
ponent was  the  dominating  influence  in  the  fam- 
ily; that  a  codicil  confirmed  proponent's  title 
to  a  portion  of  the  estate,  while  contestant  and 
another  had  to  take  their  chance  of  being  sub- 
sequently cot  off,  and  the  failure  of  proponent 
to  testify  to  show  his  own  good  faith  was  not 
excused — it  was  error  in  the  instructions  to  ar- 
gue to  the  jury  that,  because  of  the  small  inter- 
est of  proponent  under  the  codicil,  it  was  unjust 
to  charge  him  with  exercising  undue  influence. 
[Ed.  Note.— For  other  cases,  see  Wills,  Dec. 
Dig.  S  332.»J 

Error  to  Circuit  Court,  Oakland  County; 
George  W.  Smith,  Judge. 

Proceedings  by  Edgar  C.  Poppleton  and  an- 
other for  the  probate  of  the  will  and  codicils 
of  Sarah  Poppleton,  deceased,  in  which  Ella 
Poppleton  appeared  as  contestant  There 
was  a  Judgment  admitting  the  will  and  codi- 
cils to  probate,  and  contestant  brings  error. 
Reversed  and  new  trial  granted. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTaOMEKY,  McALVAT,  and  BROOKE, 
33. 

Robert  M.  Brownson,  for  appellant  John 
E.  Patterson  and  Beaumont  Smith  &  Har- 
ris, for  appeHees. 


BLAIR,  C.  J.  Sarah  Poppleton  died  at  her 
home  in  the  village  of  Birmingham,  Oakland 
county,  on  June  3,  1907,  at  the  age  of  92  i 
years.  She  left  a  will,  executed  March  4, 
1891,  to  which  had  been  added  three  codi- 
cils. By  the  will  testatrix  gave  one-fourth 
of  her  estate  to  her  son,  Edgar  Poppleton,  in 
trust  to  pay  the  net  Income  thereof  to  the 
contestant,  her  daughter  Ella,  during  her 
lifetime ;  the  principal,  after  Ella's  death,  to 
go  to  Edgar  and  his  brother,  Herbert  The 
remaining  three-fourths  of  her  estate  she 
willed  to  Edgar  and  Herbert  equally. 

The  first  codicil,  executed  February  5, 1895, 
reads  as  follows:  "Up  to  this  date  I  have 
given  my  son  Edgar  C.  that  portion  of  my 
estate  which  I  wish  him  to  have.  What  Is 
left  he  will  report  faithfully,  and  that  part 
I  wish  divided  according  to  the  full  terms  of 
this  will  among  the  other  two  children.  But 
this  Is  not  Intended  to  deprive  said  son  Ed- 


gar C.  from  heirship  right,  in  case  of  the 
death  of  Herbert  or  Ella." 

The  second  codicil,  executed  December  26, 
1896,  provided,  in  substance,  that  if  Ella  or 
Herbert  should  contest  the  will  or  codicils, 
or  if  Ella  should  attempt  to  remove  the  trus- 
tee named  therein,  their  share  or  shares 
thereunder  should  be  revoked  and  go  to  oth- 
ers. December  1,  1004,  testatrix  execiited  a 
third  codicil  containing  the  following  provi- 
sions : 

"First.  I  hereby  revoke  such  provisions  of 
my  said  last  will  and  testament  as  gives  to 
my  daughter,  Ella,  any  share  or  portion  of 
my  property  and  I  hereby  leave  her  nothing 
by  my  last  will  and  testament. 

"Second.  All  the  property  which  my  daugh- 
ter, Ella,  would  have  been  entitled  to  at  my 
death  under  the  provisions  made  for  her  in 
my  said  last  will  and  testament  if  the  same 
were  not  hereby  revoked,  I  give  and  bequeath 
to  my  sons,  Edgar  C.  Poppleton  and  Herbert 
A.  Poppleton,  In  equal  shares. 

"Third,  I  have  already  delivered  my  securi- 
ties to  Edgar  C.  Poppleton  with  Instructions 
to  make  such  a  division  between  himself  and 
my  son,  Herbert  A.  Poppleton. 

"Fourth.  I  request  that  my  said  sons  pay 
to  my  said  daughter  Ella,  such  a  sum  of  mon- 
ey annually  as  each  may  deem  best  on  or 
about  the  first  of  January  of  each  year  dur- 
ing her  life,  but  this  is  a  request  merely  and 
it  is  not  obligatory  upon  my  said  sons  nor 
a  condition  of  this  Instrument." 

At  the  time  of  her  death  testatrix's  estate 
amounted  to  about  $80,000,  and  was  handled, 
and  had  been  for  many  years,  by  Edgar  as 
her  confidential  adviser  and  business  agent 
Many  years  before  contestant  had  received, 
under  the  will  of  her  aunt,  $13,000,  which, 
under  her  father's  management,  had  increas- 
ed to  $42,000,  and  after  the  death  of  her 
father  was  handled  for  her  by  her  brother 
Eklgar.  In  September,  1893,  Mrs.  Poppleton 
transferred  to  contestant  $5,000  In  mortgages, 
about  the  character  of  which  transfer  a  dis- 
agreement later  arose  between  Ella  and  the 
other  members  of  the  family.  The  facts  with 
reference  to  this  matter  will  be  found  suffi- 
ciently stated  In  our  opinion  in  the  case  of 
Poppleton  V.  Poppleton,  143  Mich.  208,  106  N. 
W.  703,  where  we  held  that  the  evidence  es- 
tablished a  gift  of  the  securities  themselves 
as  claimed  by  Ella,  and  not  merely  of  the 
Interest,  as  claimed  by  the  other  members  of 
the  family.  The  will  and  codicils  were  con- 
tested In  "e  probate  and  circuit  courts,  on 
the  grounds  of  mental  Incompetency  of  the 
testatrix,  and  fraud  and  undue  Influence 
practiced  upon  her  by  her  son  Edgar.  The 
papers  were  admitted  to  probate,  in  both 
courts,  and  to  reverse  the  Judgment  of  the 
circuit  court  contestant  prosecutes  her  writ 
of  error  In  this  court 

The  greater  portion  of  contestant's  brief  is 
devoted  to  the  discussion  of  the  errors  as- 


*For  other  eases  see  same  toplo  and  section  NUMBER  in  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Heporter  Indexas 
122  N.W.— 18 


Digitized  by 


L-oogle 


274 


122  NORTHWESTERN  REPORTER. 


(Mich. 


signed  upon  fbe  refusal  of  the  trial  Judge  to 
grant  her  motion  for  a  new  trial,  for  the  rea- 
sons :  First,  that  the  verdict  was  against  the 
clear  weight  of  the  evidence;  second,  that 
In  view  of  Kdgar's  confidential  relations  with 
testatrix  the  burden  rested  upon  proponents 
to  show  that  there  was  no  undue  Influence 
exerted,  and  proponents  failed  to  show,  by  a 
preponderance  of  the  evidence,  that  the  codi- 
cils were  not  the  result  of  undue  Influence. 
Our  examination  of  the  record  has  satisfied 
us  that  the  trial  Judge  did  not  err  In  refusing 
a  new  trial  upon  the  grounds  urged.  It 
would  serve  no  useful  purpose,  and  unduly 
extend  this  opinion,  to  enter  upon  a  discus- 
sion of  the  voluminous  testimony.  A  suflS- 
clent  motive  for  the  third  codicil  might  well 
be  found  In  contestant's  treatment  of  her 
mother,  and  the  methods  she  adopted  to  se- 
cure evidence  for  future  use.  There  was  tes- 
timony also  to  the  effect  that  she  thought 
Ella  had  enough.  Mrs.  Dane  Poppleton  tes- 
tified: "She  frequently  spolie  to  me  about 
her  property,  and  about  the  way  in  which  she 
wished  It  to  be  divided.  She  said  that  what 
she  had  left  she  wished  Edgar  and  Herbert 
to  have.  She  considered  Ella  had  had 
enough."  It  was  not  necessary,  however, 
that  testatrix  should  have  any  motive  for 
making  her  will  as  she  thought  fit,  apart 
from  her  own  desire.  The  record  Indicates 
that  if  the  last  codicil  stands,  contestant 
will  have  had  about  as  much  as  her  brothers. 
Under  such  circumstances,  there  was  nothing 
unnatural,  or  even  unreasonable,  about  her 
final  disposition  of  her  property. 

The  principal  witness  as  to  facts  implying 
undue  Influence  was  the  contestant  herself, 
whose  testimony  the  Jury  might  have  consid- 
ered seriously  Impeached  by  the  disappear- 
ance from  her  diary  of  sentences  which  she 
had  read  therefrom  In  probate  court,  and  by 
the  appearance  of  passages  therein  which  did 
not  appear  in  her  testimony  in  the  probate 
court  She  also  contradicted  herself  in  im- 
portant particulars.  The  preponderance  of 
the  evidence  Is  strongly  in  favor  of  the  men- 
tal competency  of  the  testatrix  at  the  time 
she  executed  the  third  codicil;  that  she  was 
a  woman  of  strong  will,  and  Insistent  upon 
having  her  way,  and  her  changed  attitude 
towards  contestant  can  be  reasonably  ex- 
plained by  the  methods  adopted  by  contes- 
tant in  endeavoring  to  secure  her  property. 

The  seventeenth  assignment  of  error  chal- 
lenges the  correctness  of  the  following  por- 
tion of  the  charge :  "If  you  believe  from  the 
testimony  in  this  case  further  that  Sarah 
Poppleton  was  influenced  to  make  the  codicil 
December  1,  1904,  by  reason  of  the  actions  or 
conduct  of  her  daughter  with  reference  to 
having  the  trusteeship  removed  from  her 
father's  estate,  or  by  her  actions  with  ref- 
erence to  obtaining  the  $5,000  fund,  claimed 
by  Sarah  Poppleton  to  have  been  created  for 
Ella  to  have  the  use  and  interest  thereon 
during  her  life,  or  by  reason  of  Ella  Popple- 
ton removing  things  from  her  mother's  house, 


or  taking  the  silver  away,  without  her  knowl- 
edge, or  of  talking  to  her  mother  in  such  a 
manner  as  no  daughter  should  talk  to  a  par- 
ent,  and  leaving  her  mother  agitated  and  in 
tears  after  at  least  one  interview  with  her, 
then  you  jnay  find  that  these  things,  or  any 
of  them,  might  be  sufflcient  motive  for  the 
making  of  such  a  codicil."  Properly  inter- 
preted, we  find  no  prejudicial  error  In  this 
portion  of  the  charge.  There  is  abundant  ev- 
idence In  the  wills  themselves  of  both  par- 
ents, as  well  as  In  extraneous  testimony,  that 
they  regarded  the  trust  provisions  thereof  as 
essential,  and  the  efforts  of  contestant  to  se- 
cure a  discharge  of  the  trust  provisions  might 
properly  be  considered  by  the  Jury  on  the 
question  of  motive.  We  do  not  understand 
the  reference  to  the  $5,000  fund  to  mean 
that  the  bringing  of  suit  by  contestant  to  en- 
force her  Just  rights  would  furnish  a  suflB- 
cicnt  reason  for  disinheriting  her,  but  that 
the  course  pursued  by  contestant  In  prepar- 
ing for  the  bringing  of  suit  might  furnish 
such  reason.  This  is  made  evident  by  a  pre- 
ceding portion  of  the  charge,  in  which  the 
court  said:  "I  further  charge  you  that  this 
contestant  had  the  right  to  make  such  de- 
mand upon  her  brother  for  the  return  to  her 
of  this  property;  and,  if  you  find  as  a  mat- 
ter of  fact  from  the  evidence  in  the  case,  that 
at  the  time  of  the  execution  of  this  last  cod- 
icil, on  December  1,  1904,  Edgar  O.  Popple- 
ton did  make  use  of  this  demand  of  the 
contestant  for  the  return  of  her  property  to 
poison  the  mind  of  his  mother  against  her, 
and  that  the  testatrix  came  to  believe  that 
the  dalm  of  the  contestant  so  made  was  an 
unjust  and  unwarrantable  claim,  and  that 
she  acted  upon  that  belief,  and  that  it  was 
the  cause  of  her  disinheriting  her  daughter, 
then  I  charge  you  that  was  such  a  mental  de- 
lusion as  would  avoid  this  codicil,  and  your 
verdict  should  be  for  the  contestant  as  to 
this  codicil."  Counsel  for  contestant  seem 
to  confine  the  reference  to  removing  things 
from  her  mother's  house  to  the  furniture 
removed  some  months  after  the  making  of 
the  third  codicil.  There  was  other  property 
taken  before  that  date,  which  the  court  may 
have  referred  to. 

There  was  testimony  to  sustain  the  portion 
of  the  charge  covered  by  the  twenty-fifth  as- 
signment of  error,  and  It  was  for  the  Jury  to 
find  where  the  preponderance  of  the  evidence 
was. 

The  twenty-sixth  and  twenty-seventh  as- 
signments of  error  relate  to  the  following 
portions  of  the  charge:  "Now,  I  think  you 
will  find  it  Impossible,  gentlemen,  to  satis- 
factorily get  at  the  proofs  of  these  conten- 
tions, except  by  a  review  of  the  history  of 
this  family.  In  May,  1887,  although  it  has 
not  been  spoken  of  directly,  but  still  I  think 
nobody  will  dispute  it,  that  in  May,  1887,  ei- 
ther Orrin  Poppleton,  or  one  of  the  boys,  or 
all  of  them,  had  a  store  at  Birmingham. 
Finding  a  burglar  In  the  store  at  1  or  2 
o'clock  in  the  morning  in  May,  1887,  Edgai 


Digitized  by  VjOOQ  l€ 


MlchO 


POPPLBTON  T.  POPPLBTON, 


2ltfi 


Poppleton  proceeded  to  try  to  capture  tbe 
burglar.  He  went  to  the  rear  entrance  of 
tbe  store  where  the  burglar  bad  entered,  with 
his  rerolver  in  hand,  and  called  to  him  to 
come  out.  and  he  came  out.  Instantly  on  ax>- 
proaching  the  door  he  flred  at  Edgar,  with- 
out hitting  him.  Edgar  immediately  flred 
and  killed  the  bnrglar,  bnt  the  excitement 
and  shock  of  tbe  encounter  resulted  In  what 
counsel  on  both  sides  say  is  his  total  deaf- 
ne».  •  •  •  On  February  5,  1895,  when 
the  first  codicil  was  made  Mrs.  Poppleton 
uses  this  language — I  quote  from  the  codi- 
cil, verlwtlm — 'Up  to  this  date  I  have  given 
my  son  Edgar  C.  that  portion  of  my  estate 
which  I  wish  him  to  have.'  The  language  is 
very  brief,  you  will  notice,  gentlemen,  so  that 
Edgar's  share  is  not  now  entirely  dependent 
upon  this  will,  but  the  allowance  of  the  will 
may  strengthen  his  title  to  his  share,  bnt  ac- 
cording to  this  codicil  he  has  already  receiv- 
ed it,  and  received  it  back  prior  to  1895.  So 
that  he  now  has  no  such  Interest  in  this  will 
as  his  brother  Herbert,  yet  counsel  denounces 
him  as  bringing  about  the  making  of  this 
will.  The  petition  for  the  probating  of  this 
will.  If  I  recall  correctly,  was  not  made  by 
Edgar,  but  by  Herbert.  Edgar  as  her  ex- 
ecutor contends  for  the  allowance  of  the  will, 
and  he  may  have  some  other  interest  In  the 
estate,  I  know  not  how  much,  but  from  ap- 
pearances, gentlemen,  of  these  papers  appar- 
ently he  has  no  such  Interest  in  their  allow- 
ance as  his  brother  Herbert."  Of  these  as- 
signments counsel  for  proponents  say  In  their 
brief:  "It  is  respectfully  submitted  that  the 
charges  covered  by  these  assignments  were 
entirely  proper.  But  whether  so  or  not,  the 
error.  If  any,  was  so  immaterial  and  trivial 
that  It  could  not  possibly  have  influenced 
the  verdict."  We  are  nnable  to  take  the  view 
expressed  by  counsel.  Standing  alone,  the 
statement  of  the  court  as  to  the  cause  of 
Edgar's  deafness,  though  nowhere  mention- 
ed In  the  testimony,  might  be  of  no  impor- 
tance, bnt  when  read  in  connection  with  the 
other  portion  of  tbe  charge  quoted,  its  effect 
might  be  considerable.  The  heroic  conduct  of 
Edgar  as  described  by  the  court  would  natu- 
rally inspire  sympathy  and  admiration  In  the 
minds  of  the  jurymen,  which  would  not  at- 
tach to  deafness  alone  occasioned  by  a  more 
prosaic  canse.  Considering  this  in  connec- 
tion with  the  statement  of  Edgar's  minor  In- 
terest compared  with  that  of  Herbert,  "yet 
counsel  denounces  him  as^brlnglng  about  the 
making  of  this  will,"  we  cannot  say  that  the 
description  could  have  had  no  prejudicial  ef- 
fect. In  another  place  the  court  said:  "By 
tbe  original  will  of  Sarah  Poppleton  she  [El- 
la] was  given  In  trust  during  her  lifetime  tbe 
use  of  one  quarter  of  the  mother's  estate; 
later  tbe  use  during  life  of  |5,000  in  securi- 
ties, being  the  $5,000  spoken  of  here.    This 


she  has,  as  I  have  stated,  succeeded  in  se- 
curing absolutely."  If  these  passages  in  the 
charge  were  not  designed  to  create  prejudice 
against  contestant,  who  submitted  herself  as 
a  witness,  and  a  friendly  regard  for  Edgar, 
who  did  not,  nor  did  Herbert,  take  the  wit- 
ness stand,  they  were  certainly  admirably 
calculated  to  create  such  an  impression. 

The  court  charged  the  Jury  upon  the  sub- 
ject of  undue  influence — which.  In  reality, 
was  the  important  issue  before  the  Jury — 
"It  appears  from  the  testimony  in  this  case 
that  Edgar  C.  Poppleton,  since  the  death  of 
Orrln  Poppleton  in  March,  1893,  had  had 
complete  charge  of  the  property  and  securi- 
ties of  his  mother,  and  that  since  that  time 
he  has  acted  as  her  confidential  adviser  and 
business  agent,  and  that  by  the'  terms  of  the 
instruments  here  presented  as  the  last  will 
and  testament  of  tbe  testatrix,  he  and  his 
brother,  Herbert,  are  named  as  the  chief  ben- 
eficiaries. I,  therefore,  charge  you  that  In 
this  case  the  burden  of  the  proof  Is  upon  the 
proponent  and  his  brother,  Edgar,  to  show 
that  there  was  no  undue  influence  exercised 
in  the  execution  of  each  one  of  the  codicils 
to  this  win,  and  also  to  show  full  delibera- 
tion and  freedom  to  act  on  the  part  of  the 
testatrix,  and  good  faith  upon  the  part  of 
Eidgar  C.  Poppleton."  As  stated  by  counsel 
for  proponents  In  their  brief,  there  is  no 
testimony  "indicating  any  attempted  undue 
Influence  on  the  part  of  Herbert  Poppleton." 
There  was  testimony  tending  to  show  a  bit- 
ter feeling  between  contestant  and  Edgar  and 
that  he  was  the  dominating  Influence  In  tbe 
family.  The  codicil  of  1895  gave  to  him  writ- 
ten evidence  of  a  completed  gift,  which,  if 
actually  made,  without  such  evidence  it 
might  have  been  difficult  for  him  as  his 
mother's  confldenttal  agent  to  establish.  The 
codicil  also  left  it  to  Edgar  to  designate  the 
portion  of  the  estate  which  she  had  given 
him,  and  to  report  faithfully  what  was  left. 
The  codicil  was  a  part  of  the  will  and  con- 
firmed Edgar's  title  to  his  portion  of  the  es- 
tate beyond  recall  by  his  mother,  while  bis 
brother  and  sister  had  to  take  their  chances 
of  being  subsequently  cut  off.  No  excuse  is 
furnished  by  this  record  for  the  failure  of 
Edgar  Poppleton  to  take  the  stand  to  repel 
the  presumption  which  the  court  told  the 
Jury  existed,  and  to  show  his  own  good  faith. 
We  think  It  was  prejudicial  error  for  the 
trial  Judge  to  argue  to  the  Jury'that,  because 
of  the  alleged  small  iiiterest  of  Edgar  under 
the  codicil  of  1895,  it  was  unjust  to  charge 
him  with  exercising  undue  influence.  An  im- 
partial Jury  might  believe  that  the  codicil  of 
1895  was  one  of  the  links  in  the  chain  of  evi- 
dence establishing  undue  influence  In  the 
making  of  the  last  codicil. 

For  the  errors  referred  to,  the  Judgment  la 
reversed,  and  a  new  trial  granted. 


Digitized  by  LjOOQIC 


276 


122  NORTHWESTERN  REPORTER. 


(BUcb. 


McDUFFEB    et   al.   t.    FELLOWS,    County 

Drain  Com'r,  et  aL 
(Supreme  Court  of  Michigan.    Jn\j  15,  1009.) 

1.  Eminent  Domain  (§  222*)— Damaqe&— As- 
sessment BY  JuBY— Instructions. 

Const.  1850,  art.  18,  i  2,  provides  that,  when 
privnte  property  is  taken  for  public  use,  the 
nece.'-'Bity  for  usins  the  iMroperty  and  the  just  com- 
pensation to  be  paid  sbail  be  ascertained  by  a 
jury  residing  in  the  vicinity,  or  by  not  less 
than  three  commissioners,  appointed  by  a  court 
of  record.  Held,  that  a  jury  appointed  under 
such  provision  was  a  special  tribunal  to  deter- 
mine the  law  and  the  facts,  and  that  the  pro- 
bate judge  having  charge  of  the  proceedings  was 
therefore  not  required  to  instruct  them. 

[Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  {  5G2;   Dec  Dig.  {  222.*] 

2.  Eminent  Domain  (i  224*)— Assessment  of 
Damages — Misconduct  of  Counsel. 

In  the  absence  of  e^'ideDce  of  bad  faith,  a 
contention  of  counsel  before  the  jury,  in  con- 
demnation proceedingSj  for  an  erroneous  rule 
of  law,  was  not  sufficient  to  vacate  the  jury's 
determination. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  {  574;    Dec.  Dig.  {  224.*] 

Case  Made  from  Circuit  Court,  Ottawa 
County;  Philip  Padgbam,  Judge. 

Certiorari  proceeding  by  Daniel  McDuffee 
and  others  against  Edwin  Fellows,  County 
Drain  Commissioner,  and  Edward  P.  Klrby, 
Judge  of  Probate.  Judgment  dismissing  the 
writ,  and  affirming  the  order  of  the  probate 
court,  and  plaintiffs  seek  -  review  by  case 
made.    Affirmed. 

Argued  before  BLAIR,  C.  J.,  and  MONT- 
GOMERY, HOOKER,  BROOKE,  and  Mc- 
ALVAY,  JJ. 

Lombard  &  Hext,  for  appellants.  Smed- 
ley  &  Corwin,  for  appellees. 

MONTGOMERY,  J.  This  is  a  case  made 
to  review  the  decision  of  the  circuit  court 
for  the  county  of  Ottawa  in  a  proceeding  In- 
stituted by  certiorari  by  the  plaintiffs  and 
appellants  to  review  proceedings  had  before 
the  probate  judge  In  a  condemnation  proceed- 
ing under  the  drain  law,  in  which  proceeding 
the  necessity  for  taking  property  of  the  plaln- 
ttfts  In  error  was  determined  by  a  Jury  duly 
impaneled. 

Two  reasons  were  urged  before  the  circuit 
court  for  setting  aside  the  proceedings  had  in 
probate  court  The  first  was  that  the  pro- 
bate Judge  had  refused  to  give  a  request  to 
charge  preferred  by  the  plaintiffs  in  error  on 
the  ground  tbat  it  was  not  part  of  his  duty 
to  charge  the  Jury;  second,  that  counsel  for 
the  drain  commissioner  erroneously  stated  the 
law  applicable  to  the  case  in  his  argument  to 
the  Jury.  The  question  presented  by  the 
first  point  Is  whether,  under  section  2  of 
article  18  of  the  Constitution  of  1850,  which 
reads  as  follows:  "When  private  property  is 
taken  for  the  use  or  benefit  of  the  public, 
the  necessity  for  using  such  property  and  the 
Just  compensation  to  be  made  therefor,  ex- 
cept when  to  be  made  by  the  state,  shall  be 


ascert'ained  by  a  Jury  of  twelre  freeholders, 
residing  in  the  vicinity  of  such  property,  or 
by  not  less  than  three  commisslouers,  ap- 
pointed by  a  court  of  record,  as  shall  be  pre- 
scribed by  law" — the  Jury  provided  for  Is  in 
every  sense  of  the  word  an  adjunct  of  a 
court  of  record,  and  whether  the  parties  in- 
terested have  a  right  to  have  the  Jury  in- 
structed as  in  other  cases.  It  is  assumed  by 
counsel  for  plaintiff  in  error  tbat  a  Jury  trial 
at  the  common  law  Involved  in  every  case  a 
separation  of  the  duties  of  the  court  from 
those  of  the  Jury,  that  it  was  the  duty  of  the 
court  to  determine  all  questions  of  law,  and 
the  duty  of  the  Jury  to  decide  questions  of 
fact,  and  from  this  premise  it  la  ingeniously 
argued  that,  when  the  Constitution  provided 
.for  a  determination  of  the  question  of  neces- 
sity by  a  Jury  of  12  freeholders,  it  clearly 
Implied  that  such  determination  should  be 
had  by  the  common-law  methods  and  under 
the  instruction  and  direction  of  a  court 

It  may  be  open  to  question  as  to  whether. 
In  the  case  of  a  strictly  common-law  Jury,  In 
a  trial  by  Jury  as  such,  it  might  not  be  with- 
in the  legislative  power  to  dispense  wholly 
with  any  instructions  to  the  Jury;  but.  In 
view  of  the  decisions  of  this  court  interpret- 
ing the  section  in  question,  we  think  it  must 
be  held  as  established  that  the  tribunal  con- 
templated by  this  section  of  the  Constitution 
Is  a  special  tribunal,  and  that,  while  the 
tribunal  when  consisting  of  a  Jury  has  some 
of  the  Incidents  of  a  common-law  Jury,  the 
requirement  that  such  Jury  shall  be  instruct- 
ed by  the  court  Is  not  one  of  those  incidents. 
Trial  by  Jury  was  not,  before  the  adoption 
of  the  Constitution,  a  prerequisite  to  con- 
demnation of  property  for  public  use  under 
the  power  of  eminent  domain,  and  even  under 
the  Constitution  of  1850  the  assessment  of 
damages  for  property  thus  taken  may  be  by 
commissioners,  and  not  by  jury.  See  Mc- 
Manus  v.  McDonough  et  al.,  107  III.  95. 

In  Michigan  Air  Line  Railroad  t.  Barnes, 
44  Mich.  222,  6  N.  W.  651,  the  court  said: 
"When  the  law  provided  how  the  tribunal 
should  be  constituted  in  these  cases,  and  pre- 
scribed a  method  to  be  observed.  It  obviously 
contemplated  that  the  practice  respecting  the 
admission  of  testimony  should  be  as  simple 
as  a  due  regard  to  substantial  Justice  would 
permit  It  was  not  intended  to  leave  the 
fate  of  the  determination  had  In  view  to  any 
fine-spun  theories,  or  to  the  refinements 
which  are  not  uncommon  in  trials  at  the  cir- 
cuit They  were  not  suppof^ed  to  be  neces- 
sary to  the  fundamental  purpose  or  beneficial 
working  of  inquests  of  this  nature,  and  no 
provision  was  made  for  the  certain  attend- 
ance of  any  one  presumptively  qualified  to 
deal  with  them.  Tlie  statute  plainly  assumes 
that  the  Jury  may  conduct  the  inquiry  with- 
out the  aid  of  any  legal  expert,  and  under 
circumstances  in  which  it  would  be  difficult 
if  not  impracticable,  to  preserve  technical  or 


•For  other  cases  see  same  topic  and  aectlon  NUMBER  In  Dec.  A  Am.  01(i.  1907  to  data,  ft  Reporter  Indexei 


Digitized  by  VjOOQ  l€ 


Mich.) 


MoDUFFEE  v.  FELLOWS. 


277 


hair-drawn  questions  In  a  shape  to  be  rerlew- 
ed.  And,  were  the  niceties  of  nisi  prins  to  be 
liislsted  on,  the  proceeding  would  speedily 
break  down  under  the  perplexities  and  em- 
ban-assments  due  to  Its  own  methods." 

In  Toledo,  Ann  Arbor  &  Grand  Trunk  Rail- 
road Company  t.  Dunlap,  47  Mich.  45t>,  11 
X.  W.  271,  It  was  said:  "The  judge  formed 
DO  part  of  this  special  tribunal.  The  statute 
Indeed  allows  the  judge  to  'attend  said  jury, 
to  decide  questions  of  law  and  administer 
ooths  to  witnesses';  but  the  same  statute 
which  allows  this  allows  him  to  designate  a 
circuit  court  commissioner  for  the  same  pur- 
pose, and  also  allows  the  jury  to  proceed 
without  either.  Whatever  the  language  of 
this  statute  literally  construed  may  mean,  It 
Is  very  clear  that  any  such  functions  must 
at  most  be  advisory.  The  jury  will  undoubt- 
edly be  r^arded  as  accepting  and  doing  what 
they  permit  to  be  done ;  but  in  all  such  cases 
the  Constitution  as  well  as  the  principles  of 
the  common'  law  makes  them  judges  of  law 
and  fact.  Their  conclusions  are  not  based 
entirely  on  testimony.  They  are  expected  to 
use  their  own  judgment  and  knowledge  from 
a  view  of  the  premises,  and  their  experience 
as  freeholders,  quite  as  much  as  the  testi- 
mony of  witnesses  to  matters  of  opinion." 

In  Grand  Rapids,  Lansing  &  Detroit  Rail- 
road Company  v.  Chesbro,  74  Mich.  466,  42 
N.  W.  66,  it  was  said:  "But  the  proceedings 
before  the  Jury  appear  to  have  been  conduct- 
ed in  a  peculiar  method,  not  within  the  prop- 
er rules  governing  such  cases,  and  appear  to 
have  led  to  conclusions  that  cannot  be  main- 
tained. The  probate  judge  acted  throughout 
as  if  be  had  been  a  nisi  prius  Judge,  presid- 
ing over  a  common-law  Jury,  and  assumed 
the  whole  responsibility  of  directing  what 
testimony  should  go  before  them,  and  on 
what  theories  of  damages.  Whether  he 
charged  them  or  not  does  not  appear;  but 
his  rulings  on  evidence  had  practically  the 
same  effect  Whether  the  Constitution  will 
suffer  the  Jury  or  commission  of  Inquest  to 
act  In  a  court  of  common-law  Jurisdiction 
under  the  conditions  applicable  to  other  ju- 
ries is  a  very  serious  question ;  but,  so  far  as 
we  knew,  it  has  not  been  attempted.  The 
•Constitution  in  such  cases  as  the  present  al- 
lows either  commissioners  appointed  by  a 
court  of  record  or  a  jury  of  freeholders  to 
determine  the  necessity  of  public  use,  and  to 
ascertain  the  damages.  Commissioners  form 
no  part  of  the  machinery  of  a  court,  and  a 
jury  of  inquest  Is  not  a  court.  •  •  •  We 
held  in  Toledo,  etc.,  Railway  Co.  v.  Dunlap, 
47  Mich.  456,  11  N.  W.  271,  where  the  jury 
was  impaneled  In  a  circuit,  that  the  only 
functions  of  the  court  were  to  set  the  pro- 
ceedings In  motion  by  organizing  a  Jury  or 
appointing  commissioners,  and  affirming  or 
vacating  the  award;  and  we  held,  further, 
that  the  Jury  were  Judges  of  law  and  fact, 
and  not  subject.to  Interference  by  the  judge, 
should  he  undertake  to  accompany  them. 
The  statute,  which  probably  was  In  this  re- 


spect borrowed  from  some  other  region,  while 
it  does  authorize  a  judge  to  go  with  and  de- 
cide questions  of  law  and  swear  witnesses, 
also  allows  him  to  deputize  a  circuit  court 
commissioner  to  do  the  same  thing.  It  would 
be  absurd  to  consider  such  action  as  valid 
judicial  action.  It  was  held  there,  as  It  has 
been  uniformly  held,  that  the  jury  cannot 
be  made  subject  to  any  such  instruction,  and 
must  act  on  their  own  judgment.  When  the 
award  comes  up  for  confirmation,  it  may  be 
attacked  for  irregularity  or  impeached  on  the 
merits  in  various  ways,  as  It  may  be  on  ap- 
peal ;  but  the  award  is  and  must  be  the  jury's 
award,  and  reached  in  the  jury's  own  way. 
•  •  •  This  difficulty  Is  still  more  appar- 
ent when  the  application  is  made  to  a  probate 
court  Under  our  constitutional  system  that 
court  Itself  is,  for  most  purposes,  at  least,  a 
prerogative,  and  not  a  judicial,  court,  and  has 
no  jurisdiction  over  persons  or  property,  ex- 
cept In  such  proceedings  as  relate  to  the  es- 
tates of  deceased  persons,  or  those  under  dis- 
ability and  liable  to  wardship."  See,  also, 
Detroit  &  Toledo  Shore  Line  Railroad  Co.  v. 
Campbell,  140  Mich.  384,  103  N.  W.  856; 
Flint  &  Pere  Marquette  Railroad  Company 
V.  Detroit  &  Bay  City  Railroad  Company,  64 
Mich.  350,  31  N.  W.  281. 

It  must  be  deemed  as  settled  in  this  state 
that  the  Jury  contemplated  by  this  section 
of  the  Constitution  of  1850  is  a  special  tri- 
bunal, and  that  they  are  Judges  of  the  law 
and  fact,  and  It  is  not  error  for  the  probate 
judge  to  refuse  to  give  them  instructions. 

It  is  claimed  that  the  determination  should 
be  set  aside  for  the  reason  that  counsel  for 
the  drain  commissioner  contended  for  a 
wrong  rule  of  law  before  the  Jury.  It  ap- 
pears that  counsel  for  the  drain  commission- 
er argued  that  if  the  jury  found  any  por- 
tion of  the  drain  necessary  and  conducive  to 
public  health,  they  should  then  determine  the 
whole  of  said  drain  as  laid  out,  and  the  tak- 
ing of  plaintiffs'  land  to  be  necessary,  and 
that,  as  plaintiffs  conceded  the  necessity  of 
said  drain  below  a  certain  highway  bridge, 
the  jury  should  determine  the  entire  drain 
as  laid  out  and  the  taking  of  plaintiff's  land 
to  be  necessary. '  It  appears,  on  the  other 
hand,  that  respondent's  counsel  conceded 
that  the  drain  from  the  highway  bridge  to 
its  terminus  was  necessary  and  conducive  to 
the  public  health,  but  argued  that  from  the 
commencement  of  said  drain,  to  the  point 
where  the  same  leaves  the  land  of  plaintiffs, 
there  was  no  necessity  for  said  drain  on  any 
consideration  of  the  public  health,  and  that 
unless  the  Jury  should  find  that  some  consid- 
eration of  the  public  health  rendered  neces- 
sary the  taking  of  some  portion  of  the  land 
along  the  course  of  said  drain  above  the 
point  where  the  same  leaves  the  land  of 
plaintiffs,  then  they  must  find  said  drain  as  a 
whole,  and  the  taking  of  plaintiff's  land  for 
the  purpose  thereof,  not  to  be  necessary. 

We  cannot  assume  that  the  jury  was  mis- 
led by  the  contention  of  counsel.    There  la 


Digitized  by  VjOOQ  IC 


278 


122  NORTHWESTERN  REPORTER. 


(Hlcb. 


no  eTidence  of  bad  faith,  and  It  would  be 
establishing  a  new  precedent  to  hold  that  a 
contention  of  counsel  for  an  erroneous  rule 
of  law  was  sufficient  to  vacate  a  proceeding 
of  this  character. 

The  judgment  of  the  circuit  court  will  be 
affirmed,  with  costs. 


In  re  CAMERON'S  ESTATE. 
(Supreme   Court  of  Michigan.     July  6,  1909.) 

Insaits  Persons  (§  42*)  —  Guabdianshif — 

Rbvocation— AOCOUNTIIia. 

An  alleged  incompetent  may  require  a  de 
facto  guardian  to  account,  without  admitting 
the  regularity  of  the  appointment,  and  may  in 
the  same  proceeding  ask  for  tlie  revocation  of 
the  letters  of  guardianship  became  of  irregu- 
larities in  the  proceedings  in  which  the  guard- 
ian was  appointed. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons,  Dec.  Dig.  I  42.*] 

Error  to  Circuit  Court,  Newaygo  County; 
Lewis  O.  Palmer,  Judge. 

In  the  matter  of  the  estate  of  Hiram 
Cameron,  an  alleged  mentally  Incompetent 
person.  From  an  order  of  the  circuit  court 
revoking  the  letters  of  guardianship  to  Mrs. 
Susie  Smith,  and  requiring  her  to  account, 
she  appeals.    Affirmed. 

Argued  before  MONTGOMERY.  OSTRAN- 
DEE,  HOOKER,  McALVAY,  and  BROOKE, 
JJ. 

Turner  ft  Turner  (Cross,  Lovelace  ft  Ross, 
of  counsel),  for  appellant  George  Luton  (A. 
O.  Day,  of  counsel),  for  appellee  Cameron. 

MONTGOMERY,  J.  This  is  a  proceeding 
Instituted  by  petition  of  Hiram  Cameron, 
which  alleges  that  he  was,  at  the  date  of 
filing  the  petition,  S6  years  of  age;  that 
on  the  11th  of  March,  1901,  he  was  the  own- 
er of  a  certain  description  of  land  In  Neway- 
go county,  and  was  also  the  owner  of  certain 
personal  property  of  the  value  of  $440;  that 
on  the  11th  of  March,  1901,  Ida  Fortune,  a 
sister  of  petitioner,  filed  In  the  probate  court 
a  petition  praying  that  she  be  appointed 
guardian  of  the  personal  estate  of  Cameron; 
that  an  order  was  made  on  the  9th  of  April 
appointing  one  Susie  Smith  as  guardian  of 
the  petitioner,  and  without  stating  in  the 
order  that  she  was  to  be  guardian  of  the 
estate,  as  he  Is  Informed  and  believes;  that 
on  May  25,  1901,  the  then  Judge  of  probate 
Issued  an  appraiser's  warrant  to  certain 
named  parties,  directing  them  to  appraise  the 
estate ;  that  the  warrant  and  inventory  were 
filed,  from  which  it  appears  that  Susie  Smith 
did  not  verify  the  Inventory  of  property  as 
required  by  law;  that  on  the  4tb  of  April, 
1901,  Susie  Smith  was  required  by  the  or- 
der of  the  court  to  file  a  bond  with  sufficient 
sureties  in  the  penal  sum  of  $800,  and  that 
said  Susie  Smith  filed  a  bond  with  only  one 
surety,   as  your  petitioner  Is  advised  and 


believes ;  that  said  Susie  Smith  has  not 
since  her  appointment  as  guardian  rendered 
an  account  on  oath  of  the  property  in  her 
hands  which  she  was  required  to  do  once 
each  year  after  her  appointment  as  such 
guardian;  that  said  Susie  Smith  has  not 
furnished  the  petitioner  to  exceed  the  sum 
of  $76,  and  that  during  the  last  three  years 
she  has  only  furnished  blm  with  one  suit 
of  clothing,  a  hat,  and  pair  of  shoes,  and 
he  has  had  to  sapport  himself  as  a  common 
laborer,  and  that  she  makes  It  so  disagree- 
able and  unpleasant  that  he  cannot  live  wltb 
her ;  that  your  petitioner  is  not  now  saentally 
incompetent,  but  on  the  contrary  Is  mentally 
competent  to  have  the  charge,  custody,  and 
management  of  his  person  and  estate.  Tbe 
prayer  of  the  petition  is  that  Snale  Smith,  as 
such  guardian  as  aforesaid,  be  required  tt> 
render  to  said  court  a  full  and  complete 
account  of  her  receipts  and  disbursements,, 
and  of  the  manner  In  which  she  has  per- 
formed her  said  trust;  that  for  tbe  reasons- 
above  set  forth  concerning  the  same,  said 
Susie  Smith  be  removed  as  such  guardian, 
her  appointment  to  such  trust  be  vacated,  and 
her  letters  of  guardiansbip  be  revoked  and 
canceled.  The  probate  court,  and  on  appeal 
the  circuit  court,  entered  an  order  that  the 
letters  of  guardianship  to  Mis.  Smith  be  re- 
voked and  canceled.  From  that  order  an 
appeal  Is  taken  to  this  court 

It  Is  the  contention  of  tbe  appellant  tbat 
the  proceedings  taken  by  the  ward  should  be 
construed  as  instituted  nnd«  section  8724  of 
the  Compiled  Laws,  and  that  under  the  case 
of  Comett  V.  Comett  122  Mich.  685,  81  N. 
W.  920,  no  question  was  open  except  that  ot 
the  present  mental  capacity  of  tbe  ward. 
In  tbat  case,  however,  It  appeared  that  the 
proceeding  taken  by  the  ward  was  distinctly 
under  the  section  quoted,  and  tbat  no  ques- 
tion of  the  jurisdiction  of  tbe  probate  court 
was  raised,  but  thiereafter  the  ward  filed  a 
bill  In  chancery  to  impeach  the  proceedings 
In  the  probate  court,  regular  on  their  face. 
What  was  held  In  tbat  case  was  that,  hav- 
ing Invoked  tbe  jurisdiction  of  the  probate 
court  under  section  8724,  with  full  knowledge 
of  all  the  facts,  the  complainant  should  be 
held  estopped  from  complaining  of  fraud  or  ' 
jurisdictional  defects  set  up  In  the  bill. 
There  was,  so  far  as  the  record  shows,  no  at- 
tempt to  raise.  In  the  proceedings  instituted 
by  tbe  ward  In  the  probate  court,  any  ques- 
tion of  tbe  regularity  of  the  proceedings  by 
which  the  guardian  was  appointed.  That 
case  dlfTers  from  the  present  in  this  essen- 
tial particular.  In  this  case  it  is  set  out 
that  there  nas  no  order  appointing  Susie 
Smith  guardian  of  the  estate  of  the  petition- 
er. It  was  held  In  North  v.  Joslln,  59  Mich. 
647,  26  N.  W.  810,  that  it  was  essential  that 
the  adjudication  concerning  both  person  and 
estate  should  appear  of  record.  This  was 
reaffirmed  in  Re  Geo.  Bassett,  68  Mich.  S53, 


•For  other  cues  see  same  topic  and  section  NUUBBR  In  Deo.  ft  Am.  Diss.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  LjOOQIC 


Ulctu) 


CITT  OP  FLINT  ▼.  STOCKDALB'S  ESTATE. 


279 


36  N.  W.  97.  In  GlUett  ▼.  Needham,  37  Mich. 
143,  it  was  held  that  whatever  may  be  the 
immnnlty  of  letters  of  administration  from 
attacks  from  strangers,  parties  interested 
may  always  take  advantage  of  a  want  of 
Jnrlsdictlon  in  the  conrt  which  issued  them. 
This  was  reaffirmed  in  Breen  v.  Pangbom. 
51  Mich.  29,  16  N.  W.  188.  In  the  present 
case  there  is  no  question  that  Snsle  Smith 
was  de  facto  guardian  of  this  ward.  This 
gave  him  the  undoubted  right  to  have  an  ac- 
counting of  ber  administration,  if  he  saw 
fit  to  invoke  the  aid  of  the  court  which  had 
assumed  to  make  tne  appointment  This  he 
might  do  without  admitting  the  regularity  of 
the  appointment.  We  see,  therefore,  no  im- 
propriety in  the  form  of  the  petition  which 
asks  tliat  the  letters  of  guardianship  be  re> 
Toked  and  canceled,  and  also  that  an  account- 
ing be  had.  Such  order  was  made,  and  tbe 
accounting  lias  been  bad,  which  is  before  us 
for  consideration  in  the  case  of  Smith  v.  Cam- 
eron. 122  N.  W.  664. 

The  order  In  the  present  case  will  be  af- 
firmed. 


CITI    OP    FLINT   T.    STOCKDALB'S   ES- 
TATE. 

(Supreme  Court  of  Michigan.    Jaly  15,  1909.) 

1.  Appeai.  and  Kbbob   (i  1029*)— Hakicless 
Erbob— Pabties  Not  Entitled  to  Succeed. 

A  case  ghould  not  be  reversed  for  errors 
against  a  party  not  entitled  to  succeed  in  any 
event 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {§  4035,  4036;  Dec.  Dig.  { 
1029.*] 

2.  Wiixs    (i    324*)— Lost   Will— Pbobate— 
Question  roB  Jubt. 

In  a  proceediDg  to  establish  an  alleged  lost 
will,  evidence  held  to  authorize  submission  to 
tbe  jury. 

[Ed.  Note.— For  other  cases,  see  Wills,  Dec. 
Dig.    {    324.*] 

3.  Wills   (S   432*)  —  Meboeb   and   Bab   of 
Jddoment— Probate  of  Will. 

A  judgment,  pursuant  to  a  stipulation  be- 
tween the  legatees  and  heirs  at  law  admitting 
a  will  to  probate,  was  not  conclusive  upon  pro- 
ponent of  an  alleged  lost  will,  whose  proceedmgs 
to  probate  the  same  were  pending  at  that  time, 
and  who  was  not  a  party  to  the  stipulation. 

[Ed.  Note.— For  other  cases,  see  Wills,  Dec. 
Dig.  {  432.*] 

4.  Trial   (S   29*)— Conduct  of  Judqk— Ex- 
amination OF  Witness. 

While  the  judge  may  question  witnesses  to 
bring  the  facts  properly  before  the  jury,  it  is 
his  duty  in  so  domg  to  so  frame  his  questions  as 
not  to  indicate  his  own  opinion,  and.not  to  lay 
nndne  stress  on  particular  features  of  the  wit- 
ness' testimony  tending  to  impeach  him ;  and, 
where  tbe  examination  clearly  showed  the 
judge's  opinion  on  the  question  of  credibility. 
It  was  ground  for  reversal. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  i  82;    Dec  Dig.  {  29.*] 

8.  Wills  (S  302*)— Probate— Weight  of  Ev- 
idence. 

In  a  proceeding  to  probate  an  alleged  lost 
or   suppressed   will,    an   Instruction    that    pro- 


ponent's proof  must  clearly  and  unquestionably 
preponderate  in  his  favor  was  erroneous. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  t  700;    Pec.  Dig.  (  302.*] 

8.  Trial  (S  296*)— Instructions— Construc- 
tion AS  A  Whole. 

In  a  proceeding  to  probate  an  alleged  lost 
or  suppressed  will,  an  instruction  requiring  pro- 
ponents  proofs  upon  every  point  to  establish 
clearly  and  unquestionably  each  proposition 
was  not  cured  by  earlier  instructions  in  the 
same  charge,  correctly  stating  the  rule. 

[Ed.  Note.— For  other  cases,  see  Trial,  Dee. 
Dig.  I  206.*] 

Error  to  Circuit  Court,  Genesee  County; 
Charles  H.  Wisner,  Judge. 

Proceedings  by  the  City  of  Flint  for  the 
probate  of  an  alleged  lost  will  of  Mary  Stock- 
dale,  deceased.  From  a  judgment  against 
proponent,  it  appeals.    Reversed. 

Argued  before  BLAIB,  C.  J.,  and  OSTRAN- 
DER,  HOOKER,  MOORE,  and  McALVAT, 
JJ. 

De  Yere  Hall  (Homer  3.  McBrlde  and  Har- 
rison Oeer,  of  counsel),  for  appellant.  John 
J.  Carton,  Mark  W.  Stevens,  Brennan  &  Cook, 
Brown  &  Farley,  and  Black  &  Roberts,  for 
appellees. 

BLAIR,  O.  J.  The  writ  of  error  in  this 
case  Is  prosecuted  to  set  aside  the  Judgment 
entered  upon  the  verdict  of  the  Jury  therein, 
finding  that  the  said  Mary  Stockdale  did  not 
execute  a  certain  alleged  will  propounded  by 
proponent  as  a  lost  will.  Mrs.  Stockdale 
died  on  April  26,  1905,  at  her  home  on  her 
farm  Just  outside  the  city  limits  of  Flint,  and 
the  only  will  found  after  ber  decease  was  a 
will  drawn  by  Wm.  Stevenson,  and  properly 
executed  by  her  on  the  10th  day  of  Septem- 
ber, 1883.  This  will  appointed  Wm.  Steven- 
son and  Charles  T.  Bridgman  executors; 
was  filed  for  probate  on  April  29,  1905 ;  con- 
tested by  the  heirs  at  law ;  and  was  decreed 
by  the  probate  court  not  to  be  the  last  will 
and  testament  of  Mrs.  Stockdale,  for  the  rea- 
son that  she  had  revoked  It  by  another  will 
containing  a  revocation  clause.  From  the 
decree  disallowing  the  will  Charles  T.  Bridg- 
man, as  executor,  and  the  Harper  Hospital  of 
Detroit  as  a  legatee,  appealed  to  the  circuit 
court 

On  the  11th  day  of  December,  1906,  in  pur- 
suance of  a  stipulation  to  that  effect,  entered 
into  by  Brown  &  Farley  and  Black  &  Rob- 
erts, attorneys  for  tbe  heirs  at  law,  Carton  & 
Bray,  attorneys  for  the  legatees,  and  Bren- 
nan ft  Cook,  attorneys  for  Charles  T.  Bridg- 
man, appellant,  an  order  was  entered  in  the 
circuit  .court  dismissing  the  appeal  of  said 
Bridgman.  On  the  5th  day  of  April,  1906,  an 
agreement  was  entered  into  between  the  lega- 
tees and  heirs  at  law  settling  the  estate  on 
the  basis  of  40  per  cent  to  tbe  legatees  and  60 
per  cent  to  tbe  heirs  at  law,  and  authorizing 
their  respective  attorneys  "to  take  such  steps 
and  proceedings  as  may  be  necessary,  and 
which  in  their  Judgment  may  be  expedient 


•For  other  ease*  u«  »ama  topic  and  section  NUMBBB  In  Dee.  A  Am.  Dlga.  1907  to  date,  A  Reporter  Indexes 


Digitized  by 


Google 


280 


122  NORTHWESTERN  REPORTER. 


(Micb. 


either  to  admit  Bald  will  to  probate,  or  to 
disallow  the  same,  so  that  administration  of 
tsald  estate  may  be  had,  and  said  estate  dis- 
tributed and  settled  either  as  a'  testate  or  as 
an  Intestate  estate."  On  the  10th  day  of  De- 
cember, 190C,  Judgment  was  entered  In  the 
circuit  court  In  the  Harper  Hospital  appeal 
upon  a  directed  verdict,  adjudging  the  will  of 
September  10,  1883,  to  be  the  last  will  and 
testament  of  said  Mary  Stockdale,  and  re- 
mitting the  cause  for  further  action  to  the 
probate  court.  On  February  19,  1906,  David 
D.  Aitken,  as  mayor,  filed  his  petition  In  be- 
half of  the  city  of  Flint  for  the  probate  of 
the  alleged  lost  will  In  Issue  In  this  cause. 
The  petition  was  denied  by  the  probate  court, 
and  appeal  taken  to  the  circuit  court,  where 
the  appeal  was  dismissed.  The  petitioner 
thereupon  applied  to  this  court  for  a  writ  of 
mandamus  to  require  the  circuit  Judge  to 
vacate  his  order  dismissing  the  appeal.  The 
writ  of  mandamus  was  denied  bv  fhls  court, 
November  24,  1906,  upon  the  ground  that  the 
appropriate  remedy  was  by  writ  of  error. 
City  of  Flint  v.  Circuit  Judge,  146  Mich.  439, 
109  N.  W.  709.  The  record  having  been 
brought  before  this  court  for  review  upon 
writ  of  error,  the  order  dismissing  the  ap- 
peal was  vacated,  the  appeal  reinstated,  and 
the  cause  remanded  for  further  proceedings. 
City  of  Flint  v.  Stockdale's  Estate,  149  Mich. 
214,  112  N.  W.  710. 

On  the  10th  day  of  December,  1906,  notice 
of  issuance  of  a  writ  of  error  and  a  copy  of 
assignments  of  error  were  served  upon  con- 
testants' attorneys.  In  the  brief  for  con- 
testants it  was  set  up  that  the  pendency  of 
the  appeal  of  the  Harper  Hospital  and  the 
Judgment  entered  therein  were  conclusive  of 
proponent's  rights.  On  January  26,  1907,  an 
order  to  show  cause  why  proceedings  in  the 
Harper  appeal,  both  In  the  probate  and  cir- 
cuit courts,  should  not  be  stayed  was  enter- 
ed, and  on  the  18th  day  of  March,  1007,  an 
order  was  entered  staying  all  proceedings  un- 
til the  further  order  of  this  court,  except  as 
to  matters  necessary  to  conserve  and  protect 
the  estate.  On  the  26th  day  of  December, 
1900,  contestants  moved  to  dismiss  the  writ 
of  error  Issued  on  December  10th,  for  the 
reason,  among  others :  "First.  That  the  sta- 
tus of  the  estate  of  the  testatrix  and  Its 
testacy  having  been  fully  adjudicated  and  es- 
tablished by  the  verdict  and  Judgment  of  the 
circuit  court  for  the  county  of  Genesee,  and 
said  Judgment  being  final  and  binding  upon 
the  petitioner  and  appellant  In  this  cause, 
said  writ  of  error  was  Improvldently  Issued, 
and  the  proceedings  had  thereunder  of  no 
force,  and  said  writ  should  be  recalled  and 
dismissed." 

The  principal  witness  for  proponent  was 
Howard  Taylor,  who  testified  that  he  drew 
a  will  for  Mrs.  Stockdale  on  November  12, 
1898,  at  the  probate  office  In  the  city  of 
Flint,  he  being  at  the  time  probate  register, 
and  his  father.  George  Taylor,  Judge  of  pro- 
hate  for  Genesee  county;    that  Mrs.  Stock- 


dale  executed  the  will  in  the  presence  of  him- 
self and  father,  and  they  signed  It  in  her 
presence  as  witnesses,  whereupon  he  placed 
the  will  in  a  blue  envelo])e,  wrote  upon  It, 
"Last  will  and  testaineut  of  Mary  Stockdale," 
and  delivered  It  to  her.  He  also  testified  to 
the  contents  of  the  will.  In  part,  and  that  his 
recollection  was  that  It  was  drawn  upon  a  cer- 
tain blank  form  which  be  had  had  prepared, 
and  which  was  put  In  evidence.  This  blank 
contained  figures  showing  It  was  printed  In 
September,  1899.  He  had  testified  In  probate 
court  that  the  blank  used  was  a  duplicate  of 
the  blank  put  In  evidence.  Later  on,  being 
recalled,  he  testified :  "Q.  Do  you  know  wheth- 
er these  blanks  you  first  acquired,  such  as 
Exhibit  A,  were  republished  during  tbe  years 
that  you  were  In  office?  A.  Several  times. 
Q.  Who  published  them  for  you?  A.  Well, 
different  ones,  depending  on  who  to  be  order- 
ing goods  from.  Q.  Do  you  know  what  these 
figures  '9-99'  means  on  the  top  of  the  Ex- 
hibit A?  A.  Tes.  Q.  What  is  It?  A.  That 
means  the  date  the  blank  was  printed.  Q. 
Had  you  used  this  form  prior  to  that  time? 
A.  I  should  Judge  about  five  years  before 
that,  four  or  five." 

Mr.  Taylor  testified  on  the  trial  In  the 
circuit  court,  concerning  the  blank  form 
used,  as  follows:  "Q.  What  did  you  use  In 
the  draughting  of  this  w^Ill,  a  blank  paper 
written  entirely  by  you,  or  a  blank  filled 
by  you?  A.  My  memory  Is  it  was  a  blank 
filled  by  me.  Q.  Did  you  have  and  keep 
blanks  for  that  purpose  In  your  office?  A. 
Yes,  sir.  Q.  I  show  you  a  blank  form,  and 
ask  you  how  the  form  which  you  employed 
agreed  with  the  form  which  I  show  you?  A. 
My  memory  is  I  used  that  form,  but  I  would 
not  swear  to  that  positively.  Q.  Did  you 
have  more  than  one  blank  form  around? 
A.  I  could  not  swear  to  that.  Q.  The  blank 
form  which  you  used,  where  did  you.  procure 
It?  A.  It  was  naturally  laying  around  on 
some  of  the  desks  there.  Q.  I  mean  who 
constructed  It?  A.  The  one  I  usually  used 
I  constructed  myself;  had  It  printed.  Q. 
What  have  you  to  say  as  to  whether  your 
best  recollection  is  that  the  will,  the  form 
which  I  show  you,  Is  the  form  employed 
by  you  In  draughting  the  will?  A.  I  would 
not  say  anything  more  definitely,  Mr.  Hall, 
than  I  have  already  said  on  that  subject 
Q.  Just  repeat  It  again,  please.  A.  I  said 
my  Impression  Is  I  used  that  form.  *  »  • 
Q.  You  stated.  I  think,  Mr.  Taylor,  that  Ex- 
hibit 3  Is  the  form  of  will  which  you  draught- 
ed for  Mrs.  Stockdale,  November,  1898? 
A.  No,  I  didn't  make  any  such  statement  I 
said  I  thought  It  was.  Q.  Well,  that  Is  your 
best  Judgment?  A.  That  Is  my  best  Impres- 
sion It  was.  It  might  have  been  a  blank 
form  that  was  lying  around  the  office  there. 
Q.  I  mean  so  far  as  the  material  and  sub- 
stantial parts  of  a  will  are  concerned,  wheth- 
er the  one  which  you  made  differed  material- 
ly from  Exhibit  3?    A.  No;  it  did  not  differ 


Digitized  by  VjOOQ  l€ 


MlchO 


CITY  OP  FLINT  v.  STOCKDALE'S  ESTATE. 


281 


materially.  Very  probably  that  Is  the  form. 
•  *  *  Q.  Is  It  your  recollection  that  the 
enrller  blanks  were  the  same  as  this?  A. 
That  Is,  no  special  recollection,  a  comparl- 
EOQ  of  the  two  blanks  of  different  Issues 
would  show  what  that  means.  I  haven't 
any  recollection  of  that.  Q.  Have  you  any 
recollection  of  material  change  In  the  blank? 
A.  No  recollet-tlon  at  all  as  to  the  fact.  All 
I  have  any  knowledge  that  any  Issue  has  the 
time  It  Is  printed  on  It.  Q.  I  do  not  mean 
as  to  the  change  In  this;  I  mean  as  to  the 
substantial  part  of  the  blank?  A.  No,  sir. 
Q.  I  will  ask  you,  Mr.  Taylor,  If  you  can 
remember  of  drawing  any  will  upon  any 
blank  other  than  the  blank  marked  '9-99'? 
A.  I  would  not  answer  that  question  either 
yes  or  no,  because  I  testified  here  before. 
It  might  possibly  have  been  on  a  sample 
blank  that  was  In  the  office.  Q.  Will  you 
swear  that  you  ever  did  draw  any  will  upon 
any  blank  other  than  blank  9-99  prior  to 
September— prior  to  Mrs.  Stockdale's  death? 
A.  Yes,  sir;  I  will  swear  that  I  have  sev- 
eral. Q.  Now,  did  yon  ever  draw— will  you 
swear  that  you  have  ever  used  a  blank  In 
drawing  a  will  prior  to  the  time  of  getting 
the  blank  marked  '9-99'?  A.  Yes,  sir;  sev- 
eral. Q.  Can  you  give  me  the  names  of 
any  of  them?  A.  If  I  could,  you  haven't 
any  right  to  ask  that.  Q.  You  can,  but  you 
would  not?  A.  I  don't  say  that;  but,  If  I 
could  remember— I  don't  pretend  to  say  I 
can  remember  what  kind  of  an  Individual 
blank  I  used  for  every  paper  I  drew.  Q. 
Then  you  had  been  using  blanks  for  several 
years  prior  to  September,  1899?  A.  That  Is 
my  recollection.  Q.  How  many?  A.  I  would 
not  undertake  to  state,  Mr.  Hall,  a  matter  of 
recollection;  I  couldn't  swear  to  the  num- 
ber. Q.  Now,  In  your  former  testimony,  yon 
stated  that  you  had  used  them  for  a  period, 
of  four  or  five  years  prior  to  1899?  A.  In 
that  language?  Q.  The  substance  of  that. 
A.  I  win  say  probably  that  Is  true  now,  but 
I  wotild  not  swear  the  exact  number  of 
years.  Q.  You  also  stated  on  your  former 
examination,  as  I  remember  from  reading  It, 
that  you  had  this  blank  marked  '9-09'  re- 
published several  times?  A.  Yes,  sir.  Q. 
You  are  sure  about  that?  A.  I  can  state 
the  circumstances  If  I  have  got  to,  but  I 
would  rather  not  Q.  How  many  did  you 
have  published  each  time?  A.  That  would 
depend  on  the  generosity  of  the  traveling 
men  that  happened  to  take  the  order.  Q. 
As  a  rule,  how  many?  A.  Probably  from 
two  to  four  quires.  *  •  •  Q.  During  what 
period  of  time  was  you  using  those  quires? 
A.  There  you  are,  going  back  where  I 
wouldn't  undertake  to  swear  again.  Q.  Was 
it  during  that  period  of  four  or  five  years 
you  mention?  A.  Yes,  sir.  Q.  Those  blanks 
were  used  In  all  wills  that  you  drew?  A. 
No;  I  will  not  undertake  to  say  that.  Q. 
Well,  it  was  your  custom  to  use  blanks? 
A.  Usually  that  was  true  that  is  all  I  could 


think  to  use  them  for,  probably  I  used  them." 
Another  witness,  Betsey  Lincoln,  testified 
to  taking  the  will  out  of  the  blue  envelope 
and  reading  It,  In  the  spring  of  1902,  and 
that  It  disposed  of  property  as  follows :  "Mo- 
rey  Andrews,  city  of  Flint,  $50,000;  Louisa 
A.  Dlnturff,  Syracuse,  New  York,  her  niece, 
$1,000;  Carrie  Campbell,  city  of  Flint,  $1,- 
000;  Walter  White,  home  farm,  west  side 
of  the  road,  and  all  the  rest  of  the  real  es- 
tate, personal  was  to  be  left  to  the  city  of 
Flint,  for  a  hospital  to  be  known  and  called 
the  'Hartshorn  Hospital.' "  Dr.  Sarah  Allen 
also  testified  to  seeing  the  blue  envelope,  and 
that  Mrs.  Stockdale  told  her.  In  effect,  that 
it  contained  a  will  drawn  by  Howard  Tay- 
lor, and  that  she  bad  submitted  It  to  his 
father,  Judge  Taylor,  and  it  would  "stand 
•law."  There  was  other  testimony  tending  to 
show  the  presence  of  the  blue  envelope  In 
Mrs.  Stockdale's  safe  down  to  within  a  few 
weeks  of  her  death,  and  that  It  could  not  be 
found  after  her  death.  Mr.  Rundell,  one  of 
the  special  administrators,  testified  that  the 
day  following  Mrs.  Stockdale's  death  Mrs. 
Dlnturff,  one  of  the  heirs  at  law,  came  to 
bis  office,  and  said,  "This  Is  an  awfnl  thing. 
Isn't  It,  this  will  leaving  this  property  away 
from  us,"  and  offered  him  $25,000  If  he 
would  make  a  will,  and  she  would  look  after 
It;  that  she  could  "write  enough  like  Aunt 
Mary  [Mrs.  Stockdale]  so  that  no  one  could 
tell  the  difference."  She  also  said  that  she 
could  get  witnesses.  lie  said  to  her  that  she 
might  find  the  will  "when  we  come  to  ex- 
amine her  papers."  She  said,  "I  know  you 
won't"  That  she  had  the  keys  of  the  safe 
at  that  time,  and  delivered  them  to  him  the 
next  day  at  the  Stockdale  house,  and  he 
had  had  them  ever  since.  After  the  1st  of 
April,  1905,  he  went  to  the  safe  In  Mrs. 
Stockdale's  house,  and  Mrs.  Holton,  a  niece 
of  Mrs.  Stockdale,  got  the  keys  to  open  the 
safe.  She  said  that  she  expected  "she  would 
have  to  look  after  the  keys  from  now."  That 
he  saw  a  blue  envelope  there  at  that  time. 
Mrs.  Dlnturff  came  to  Mrs.  Stockdale's  home 
two  weeks  before  her  death  and  remained 
there  till  some  time  afterwards.  She  learn- 
ed of  the  1883  will  the  day  of  her  aunt's 
death. 

Samuel  Evans  testified  that  on  the  Sunday 
following  Mrs.  Stockdale's  death  Mrs.  Dln- 
turff called  him  into  the  sitting  room,  and 
wanted  to  know  if  be  could  not  recall  signing 
a  will,  saying,  "If  you  could  remember  of 
signing  a  will  that  was  witnessed  by  some- 
body else  that  Mr.  Andrews  had  drawn, 
there  would  be  $10,000  In  it  for  yon,  and  It 
would  be  easier  than  working  for  It."  That 
he  suggested  calling  Mr.  White  In,  She  said 
It  was  no  use  because  "he  was  told  Mrs. 
Stockdale  had  no  will."  On  May  11th  Mrs. 
Dlnturff  wrote  and  mailed  the  following  un- 
signed letter  addressed  to  Mr.  Evans: 
"Friends  Mr.  &  Mrs.  Evans:  I  have  to  leave 
here  to-day— had  hoped  to  see  you  again,  but 


Digitized  by  VjOOQ  l€ 


282 


122  MOBTHWESTBBN  BEPORTEB. 


(Ulcb. 


If  the  paper  yon  saw  was  not  the  one  we 
were  looking  for,  of  course  it  Is  no  use.  This 
Is  a  hard  thing  to  come  on  us.  Say  noth- 
ing to  any  one  of  what  I  said  and  talked 
to  you  both— for  there  is  lota  of  talk,  and 
we  don't  know  what  next,  so  better  keep 
out  of  it  altogether.  I  trust  yon  as  a  friend. 
Good-by — shall  come  again."  Mrs.  Dlnturff 
denied  absolutely  the  conversation  with  Mr. 
Rundell,  or  that  she  was  at  his  office,  or  had 
the  keys  as  he  stated.  She  also  denied  offer- 
ing any  money  to  Mr.  Evans,  though  she 
admitted  talking  with  him  on  the  subject  of 
whether  be  had  signed  any  will,  and  admit- 
ted writing  the  anonymous  letter. 

At  the  close  of  the.  voluminouB  testi- 
mony, which  is  in  irreconcilable  conflict  on 
nearly  every  material  point,  the  contestants 
moved  the  court  to  instruct  a  verdict  In  their 
favor,  which  was  denied,  and  the  case  went 
to  the  Jury,  who  found  a  verdict  against  the 
alleged  will. 

Contestants'  counsel  insist  In  this  court, 
as  they  did  In  the  circuit  court,  that  a  ver- 
dict should  have  been  directed  in  their  favor 
for  the  reasons :  "(1)  There  was  no  evidence 
to  go  to  the  Jury  that  the  alleged  will  of 
November  12,  1898,  had  been  destroyed  by 
anybody  other  than  Mrs.  Stockdale  during 
the  lifetime  of  Mrs.  Stockdale,  or  had  been 
destroyed  or  suppressed  by  anybody  after 
her  death;  <2)  because  the  witnesses  sworn 
by  the  proponent  to  prove  the  contents  of 
the  will  differ  materially,  and  even  dispute 
each  other  as  to  what  those  contents  were; 
(3)  that  Judgment  having  been  rendered  in 
the  circuit  court  for  the  county  of  Genesee 
on  December  10,  1906,  sustaining  the  will 
of  September  10,  1883,  and  admitting  It  to 
probate  as  the  last  will  and  testament  of 
Mary  Stockdale,  deceased,  that  Judgment  de- 
termined the  status  of  the  estate  of  Mary 
Stockdale,  deceased,  and  became  final  and 
conclusive  upon  all  persons  Interested  in 
said  estate,  so  long  as  the  same  stood  unre- 
versed." It  is  true  that  a  case  should  not 
be  reversed  for  errors  committed  against  a 
party  who,  it  is  apparent,  is  not  entitled  to 
succeed  In  any  event,  and  where  upon  the 
whole  record  be  has  not  made  out  a  cas& 
3  Cyc.  385,  {  6,  and  notes;  Bamum  v.  Stone, 
27  Mich.  332;  Richards  v.  Tozer,  27  Mich. 
451;  Bewick  v.  Fletcher,  41  Mich.  626,  3  N. 
W.  162,  32  Am.  Rep.  170;  Louden  v.  B.  Sagi- 
naw, 41  Mich.  18,  2  N.  W.  182.  An  examina- 
tion of  the  record  in  this  case,  however, 
has  satisfied  us  that  the  circuit  court  did 
not  err  in  submitting  the  questions  of  fact  to 
the  Jury  as  to  the  destruction  of  the  will 
and  its  contents,  and  that,  under  the  deci- 
sion of  this  court  reinstating  the  appeal  and 
the  order  staying  proceedings,  the  Judgment 
of  December  10,  1006,  which  in  reality  was  a 
mere  ratification  of  the  agreement  of  the 
parties,  was  not  conclusive  upon  proponent, 
whose  proceedings  to  probate  the  alleged  lost 
wUl  the  contestants  were  actively  combat- 


ing at  the  time.  As  we  have  reached  the 
conclusion  that  errors  were  committed  for 
which  the  case  must  be  reversed,  we  shall 
only  discuss  the  assignments  relating  to  soCb 
errors. 

Prejudicial  Condact  of  Trial  Judge. 

At  the  request  of  the  court,  Mr.  Taylor 
was  recalled,  and  examined  by  the  court,  as 
follows:  "Q.  I  understood  yon  to  say,  some 
time  during  your  examination  here  in  this 
case,  that  yon  had  had  published  a  numbe' 
of  orders  of  blank  wills?  A.  Why,  that 
would  be  my  memory,  your  honor.  Q.  Previ- 
ous to  1809?  A.  That  would  be  my  memory; 
yes,  sir.  Q.  And  I  think  you  stated  that 
those  orders  consisted  from  two  to  four  or 
five  quires  in  accordance  as  to  whether  the 
agent  might  be  liberal  or  otherwise — ^is  that 
the  substance  of  the  testimony?  A.  No;  I 
did  not  say  five.  It  might  be  two  or  four. 
Q.  Two  or  four  quires?  A.  I  should  say  so. 
Q.  That  Is  48  or  double—  A.  Or  06,  or 
three  quires.  Q.  And  when  you  got  out  of 
blanks,  you  gave  another  orde?  and  have 
some  more  printed?  A.  Why,  that  would  be 
my  memory.  Q.  Well,  now  in  the  interest 
of  Justice,  I  want  you  to  tell  me  the  name 
of  a  single  person  for  whom  you  drew  a  will 
on  a  blank  previous  to  September,  1899? 
A-  Well,  I  can't  tell  anything  about  those 
things;  I  don't  remember.  Q.  You  don't, 
out  of  all  those,  out  of  all  those  blanks,  you 
cannot  give  a  single  name  of  a  person  for 
whom  you  drew  a  will?  A.  Not  at  present, 
I  am  not  able  to.  I  may  be  able  to  find  one. 
Q.  Well,  now,  this  case  is  liable  to  last  four 
or  five  days  yet  I  want  you  to  investigate, 
and  be  able  to  tell  this  Jury  and  this  court 
If  you  can  the  name,  of  a  solitary  individual 
for  whom  you  drew  a  will  on  a  blank  previ- 
ous to  1899?  A.  Xes,  sir.  The  Court:  That 
Is  all  at  the  present  time.  A.  I  want  to 
make  a  statement  that  I  don't  swear  that  I 
drew  this  will  on  this  blank.  I  don't  re- 
member that  The  Court:  Well,  the  testi- 
mony is  here;  that  Is  for  the  Jury.  The 
Court :  That  Is  all.  Mr.  Hall :  I  will  take 
an  exception  to  the  examination  of  this  wit- 
ness by  the  court  The  Court :  That  is  all." 
Later  in  the  trial  the  following  occurred: 
"The  Court:  You  have  got  Mr.  Taylor  here 
to-day,  have  yon,  Mr.  Hall?  Mr.  Hall:  I 
suppose  he  is  here.  The  Court:  Well,  yon 
remember  I  examined  him,  and  I  want  to 
examine  him  again  before  this  case  closes. 
Mr.  Hall:  I  want  to  take  an  exception  to 
the  attitude  and  statement  of  the  court  in 
regard  to  Mr.  Taylor.  He  Is  a  subscribing 
witness  to  this  will,  called  by  necessity.  The 
Court :  The  court  wishes  to  place  on  the  rec- 
ord that  here  is  the  most  Important  case  that 
was  ever  tried  In  Genesee  county,  and  I 
want  this  Jury  to  have  every  last  bit  of  evi- 
dence that  can  be  produced,  and  I  want  my- 
self to  know  every  last  bit  of  evidence  that 
can  be  produced,  that  this  Jury  may  be  en- 


Digitized  by  VjOOQ  l€ 


Jlich.) 


CITY  OP  FLINT  r.  STOOKDALB'S  ESTATE. 


283 


abled  to  determine  wbo  is  telling  the  trntb  i 
among  the  witnesses  in  this  case,  and  that 
they  may  be  able  to  arrive  at  a  verdict 
which  shall  be  Just  and  right  between  the 
parties.  That  is  the  only  desire  this  court 
has.  Mr.  Hall:  Yes,  I  appreciate  that,  and 
I  accept  it,  if  it  is  a  criticism  on  me,  the 
suggestion  of  the  court;  but  It  has  been  di- 
rected unfortunately  to  our  witness.  The 
Court:  Well,  the  record  will  disclose  what 
has  occurred,  and  further  why  the  court  has 
seen  fit  to  examine  the  witness  himself.  It 
Is  not  a  question  of  fortune  or  misfortune. 
It  la  a  question  of  justice.  Mr.  Hall:  Note 
an  exception  to  the  statements  of  the  court" 
At  the  dose  of  the  testimony  Mr.  Taylor  was 
recalled  at  the  Instance  of  the  court,  and 
the  following  occurred:  "By  the  Ck>urt:  Q. 
Since  you  were  here  the  other  day,  Mr.  Tay- 
lor, have  you  been  able  to  recall  the  name 
of  any  person  for  whom  you  drew  a  will  up- 
on this  blank?    A.  No,  sir." 

Pablishers  of  legal  blanks  and  their  rep- 
resentatives were  called  with  reference  to 
this  particular  blank  to  show  that  it  had  not 
beoi  published  prior  to  September  9,  1890, 
nor  had  one  like  it  been  published  prior  to 
that  time.  Their  testimony  also  tended  to 
show  that  they  had  printed  no  special  will 
blanks  for  Judge  Taylor  or  his  son  prior 
to  that  time.  There  was  also  evidence  that 
the  orders  for  blanks  for  each  month  were 
placed  in  an  envelope,  and  the  envelopes  for 
the  year  filed  in  books,  and  that  the  envel- 
opes of  the  year  1890,  which  would  Iiave 
shown  exactly  what  Mr.  Taylor's  order  was, 
were  lost.  In  the  course  of  his  argument  to 
the  Jury,  Mr.  Farley,  one  of  the  attorneys  for 
the  heirs  at  law,  said:  "Of  course  Howard 
Taylor  may  have  drawn  a  will  for  Mrs. 
Stockdale,  bnt  I  don't  belleve'he  knows  what 
was  in  It,  and  I  don't  know  as  Mrs.  Stock- 
dale  ever  signed  it  My  theory  of  that  mat- 
ter is  that  Howard  Taylor  probably  drew  a 
will  at  the  Instance  of  Morey  Andrews,  and 
that  Morey  Andrews  took  that  document  np 
to  Mrs.  Stockdale  and  submitted  it  to  her, 
and  she  was  considering  the  question  of 
whether  she  should  sign  It,  because  you  re- 
memba  Howard  says  that  Morey  went  to 
the  ofDce  with  Mrs.  Stockdale  and  came  aft- 
er her.  Now,  if  Morey  knew  that  she  was 
drawing  her  will,  he  would  not  have  told 
Mr.  Evans  that  Mrs.  Stockdale  bad  not  made 
a  wilL  He  would  not  have  told  Mr.  Evans 
that  she  was  considering  a  paper  that  she 
might  want  him  to  sign  as  a  witness.  Now, 
tliat  is  my  theory  of  the  case.  •  •  •  Now, 
it  Is  true,  as  Mr.  Hall  will  say  to  you,  that 
this  evidence  of  Mr.  Taylor  was  evidence 
upon  which  we  believed  to  some  extent, 
when  we  started  in  with  this  contest  against 
this  will  of  1883,  but  since  I  have  heard  the 
testimony  in  this  case,  gentlemen,  since  I 
liave  heard  the  gentlemen  from  Detroit  and 
Kalamazoo  come  np  here,  and  say  that  Mr. 
Taylor,  when  he  drew  a  wUl  upon  a  blank  of 


tliat  kind,  I  thank  my  lucky  stars  tliat  we 
made  that  settlement  with  those  institutious 
down  there  In  Detroit  and  Buffalo,  because 
I  should  feel  very  shaky  for  the  clients  that 
I  represent  if  we  hadn't  done  It."  The  Jury 
reported  the  following  verdict:  "We  find 
that  Howard  Taylor  never  drew  a  will  for 
Mrs.  Stockdale,  and  such  a  will  never  ought 
to  be  probated,  and  the  Stevenson  will  is 
the  only  legal. will  she  ever  drew." 

The  form  of  the  questions  put  by  the  cir- 
cuit Judge  being  that  of  a  hostile  cross-ex- 
aminer; the  singling  out  of  Mr.  Taylor  and 
recalling  him  after  his  examination  and 
cross-examination  by  opposing  counsel  had 
been  finished  and  other  wltoesses  had  testi- 
fied; the  reference  to  the  interests  of  Justice 
and  the  importance  of  the  case — all  tended 
to  indicate  to  the  Jury  the  opinion  of  the  cir- 
cuit Judge  that  the  testimony  as  to  the  blank 
was  of  the  greatest  importence;  that  If  the 
witness  were  testifying  to  the  truth,  he 
would  be  able  to  name  some  person  for  whom 
he  had  drawn  a  will  on  a  blank  previous  to 
1880;  and  that  unless  he  could  remember 
some  other  will  for  which  he  used  a  blank, 
his  testimony  should  be  discredited.  An  in- 
telligent Juryman  could  hardly  have  failed 
to  believe  that  the  Judge  regarded  the  failure 
of  Mr.  Taylor  to  name  a  single  person  for 
whom  be  drew  a  will  upon  a  form  previous 
to  September,  1899,  as  a  serious  Impeach- 
ment of  his  testimony.  The  course  of  the 
circuit  Judge  also  tended  to  unduly  empha- 
size this  question.  Whether  Mr.  Taylor  drew 
the  will  was  the  principal  question,  and  his 
failure,  after  the  lapse  of  eight  or  nine  years, 
to  be  able  to  name  a  person  for  whom  be 
had  drawn  a  will  upon  a  blank,  was  only  ma- 
terial as  it  affected  his  credibility.  Aside 
from  his  testimony  as  to  the  blanks,  at  least, 
Mr.  Taylor  appears  to  have  been  a  fair  and 
impartial  witness.  He  testified  to  the  most 
damaging  facts  in  the  case  against  the  pro- 
ponent He  also  squarely  contradicted  Mrs. 
Lincoln,  the  principal  witness  as  to  the  con- 
tents of  the  will,  as  to  the  devise  of  the  home 
farm  to  White,  and  contradicted  other  wit- 
nesses for  proponent  He  was  able  to  rec- 
ollect very  little  of  the  contents  of  the  will, 
and,  apart  from  his  testimony  that  he  drew 
the  will,  his  testimony  was  favorable  to  the 
contestanta  Mr.  Taylor  was  first  called  as 
a  witness  by  Messrs.  Black  &  Roberts  and 
Brown  &  Farley  on  the  contest  between  the 
heirs  at  law  and  legatees  over  the  probate 
of  the  will  of  1883,  for  the  purpose  of  prov- 
ing that  the  will  of  1883  had  been  revoked, 
and,  based  upon  his  testimony,  in  part  at 
least  the  probate  court  decreed  that  that 
win  bad  been  revoked  by  "making  and  pub- 
lishing another  will  conteining  a  revocation 
clause  expressly  revoking  all  former  wills." 
The  legatees  conceded  to  the  heirs  at  law  60 
per  cent  of  the  large  estate,  carefully  pro- 
tecting the  percentage  contracts  of  the  attor- 
neys for  both  sides,  rather  than  take  the  risk 


Digitized  by 


Google 


284 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


of  further  contest,  and  both  sides  now  make 
common  war  upon  the  principal  witness, 
who  testified  to  the  existence  of  the  revolting 
will.  We  do  not  question  the  right  or  the 
duty  of  the  circuit  Judge  to  question  wit- 
nesses, and  to  see  that  the  facts  are  properly 
brought  before  the  jury,  but  In  so  doing  It  Is 
his  duty  to  so  frame  his  questions  as  not  to 
indicate  his  own  opinion,  and  not  to  lay  un- 
due stress  upon  particular  features  of  a  wit- 
ness' testimony  tending  to  Impeach  him.  We 
think  that  the  course  pursued  by  the  trial 
judge  in  this  Instance  constituted  reversible 
error.  Spalding  v.  Lowe,  56  Mich.  307,  23 
N.  W.  46;  R.  R.  Co.  v.  Martin,  41  Mich.  667, 
3  N.  W.  173;  Chase  v.  Buhl  Iron  Works,  55 
Mich.  139,  20  N.  W.  827;  Wheeler  v.  Wal- 
lace, 63  Mich.  356,  364,  19  N.  W.  33,  37; 
Wilson  V.  Hotchklss'  Est.,  81  Mich.  172,  45 
N.  W.  838;  Sterling  v.  Callahan,  94  Mich. 
536,  54  N.  W.  495;  Cleveland  Stove  Co.  v. 
Mallery,  HI  Mich.  43,  69  N.  W.  75;  Abbott 
V.  Detroit,  160  Mich.  245,  113  N.  W.  1121; 

.Williams  V.  West  Bay  City,  119  Mich.  395, 
78  N.  W.  328;  Buell  v.  Adams  (Mich.)  121  N. 
W.  752;  Hlne  v.  Bank,  119  Mich.  448,  78  N. 
W.  471. 

Assignment  No.  81  challenges  the  correct- 
ness of  the  following  portion  of  the  charge: 
"While  this  is  a  proceeding  to  probate  an 
alleged  lost  or  suppressed  will,  as  stated  In 

•  the  requests  I  have  given  you,  at  proponents' 
request,  it  Is  more  than  that,  gentlemen.  It 
Is  a  proceeding  to  probate  an  alleged  lost 
will  depending  on  the  verbal  testimony,  char- 
acter, honesty  and  memory  of  men  and  wo- 
men to  take  the  place  of  a  written  will  and 
testament,  visible  before  your  eyes;  and,  be- 
fore yon  wipe  It  out  by  verbal  proof,  you 
should  be  satisfied  that  truth  and  Justice 
alone  impel  yon  to  act,  and  that  proponents' 
proofs,  upon  every  point  necessary  for  him 
to  establish  clearly  and  unquestionably,  pre- 
ponderate in  favor  of  each  proposition  I  have 
charged  you  It  is  necessary  for  proponents 
to  establish."  This  Instruction  was  clearly 
erroneous  under  repeated  decisions  of  this 
court  Hoffman  v.  Loud,  111  Mich.  156,  69 
N.  W.  231;  Ewlng  v.  Mclntyre,  141  Mich. 
606,  104  N.  W.  787;  Walsh  v.  Taltt,  142  Mich. 
127,  105  N.  W.  544.  Counsel  for  contestants 
contend,  however,  that  the  error  of  this  In- 
struction was  obviated  by  correct  statements 
of  the  rule  in  earlier  portions  of  the  charge. 
We  are  unable  to  agree  with  this  contention. 
The  instruction  complained  of  constituted 
the  last  paragraph  but  one  In  the  charge, 
and  was  the  final  rule  of  law  delivered  to  the 
Jury  by  the  court  upon  this  subject.  It  im- 
mediately followed  the  following  eloquent 
and  Impressive  language:  "Next  to  those  in- 
alienable rights  to  enjoy  life,  liberty,  and 
the  pursuit  of  happiness,  for  which  our  fa- 
thers fought,  Is  that  sacred  right  to  have, 
hold,  and  enjoy  the  material  fruits  of  the 


labor  of  the  hand  or  brain,  and  as  life's  short 
day  declines,  and  the  shadows  deepen  around 
one,  and  that  mysterious  darkness  falls,  and 
the  hand  Is  stretched  forth  to  grasp  the 
blessed  hope  and  promise  of  the  ages,  and 
all  material  things  are  laid  aside  forever, 
the  right  to  know  that  all  earthly  Interests 
are  settled  and  disposed  according  to  the  dic- 
tates of  that  mind  and  conscience  whose 
only  right  It  was  to  will  the  same  is  such  a 
precious  right  that  he  who  seeks  to  pervert 
It.  and  to  that  end  Is  infiuenced  by  any  con- 
sideration whatsoever,  other  than  the  very 
act  of  the  testatrix,  whether  such  act  meets 
with  his  approval  or  not,  Is  a  robber  of  the 
living  and  a  defrauder  of  the  dead."  In 
view  of  this  solemn  adjuration  and  the  con- 
trast between  the  written  and  the  verbal 
proof.  It  cannot  be  said  that  the  instruction 
could  not  have  been  prejudicial.  It  would 
be  more  reasonable  to  hold  that  the  Instruc- 
tion that,  before  the  Jury  would  be  Justified 
In  "wiping"  out  the  written  will  "visible  be- 
fore your  eyes,"  they  should  be  satisfied 
"that  proponent's  proofs,  upon  every  point 
necessary  for  him  to  establish,  clearly  and 
unquestionably  preponderate  In  favor  of 
each  pn^Ktsltion,"  must  have  been  prejudicial. 
The  Judgment  Is  reversed,  and  a  new  trial 
granted. 


WILSON  V.  CLEVELAND  et  al. 
(Sapreme  Court  of  Michigan.     July  6,   1009.) 

1.  Mandamus  (J  22*)— Scope  of  Wbtt— Pub- 
lic Officebs— Public  Duties. 

Mandamus  will  not  be  granted  to  compel 
performance  of  public  duties  by  public  officers, 
except  where  a  specific  rieht  is  involved,  not 
possessed  by  citizens  generally. 

FEd.  Note.— For  other  cases,  see  Mandamus, 
Cent.  Dig.  IS  54,  55 ;   Dec.  Dig.  S  22.*] 

2.  Mandamus  (§  147*)— Vill.aqb  Officers — 
councii.— nonattendancb  bt  members — 
Matob— Right  to  Sue. 

Under  the  statute  making  the  mayor  chief 
executive  officer  of  a  village,  requiring  him  to 
preside  at  council  meetings  and  exercise  super- 
vision over  the  affairs  of  the  village  and  pub- 
lic property,  the  mayor  of  a  village  is  not  vest- 
ed with  a  sperific  right,  distinguishnble  from 
the  rights  ot  citizens  generally,  to  enforce  the 
attendance  of  members  of  the  city  council  at 
meetings  .by  mandamus. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Dec.  Dig.  §  147.*] 

3.  Mandamus  (8  81*)— Villaoe  Council  — 
Members— Meetings— NONATTENDANCE. 

Where  members  of  a  village  council  com- 
bined to  absent  themselves  from  meetings  in 
order  to  prevent  the  attendance  of  a  quorum, 
and  the  council  had  passed  no  ordinance  to 
compel  the  attendance  of  its  members  at  its 
meetings,  such  attendance  could  not  be  enforced 
by  mandamus,  the  remedy  being  legislative  and 
not  judicial. 

[Ed.  Note.— For  other  cases,  see  Mandamos, 
Dec.  Dig.  i  81.*] 

Certiorari   to    Circuit   Court,   Kalamazoo 
County;  Frank  E.  Knappen,  Judge. 
Mandamus,  on  the  relation  of  John  W. 


•For  otIxtT  GUM  s«e  sama  topic  and  leoUon  NUMBER  In  Dso.  It  Am.  Dig*.  U07  to  data,  ft  Reportar  Indaxaa 


Digitized  by  VjOOQ  l€ 


Mlcta.) 


WILSON  V.  CLEVELA^■D. 


283 


Wilson,  against  George  Cleveland  and  others. 
From  an  order  granting  the  writ,  defendants 
bring  certiorarL  Reversed,  and  proceedings 
dismissed. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  McALVAX,  and  BROOKE, 
JJ. 

Harry  C.  Howard,  for  appellants.  Osbom 
it  Mills,  for  appellee. 

BROOKE,  3.  John  W.  Wilson,  president 
of  the  Tillage  of  Climax,  began  these  man- 
damus proceedings  against  the  three  re- 
spondents, who  were  three  trustees  of  said 
Tillage,  and  members  of  the  village  council, 
duly  elected  in  March,  1909,  and  qualified  as 
Buch,  charging  that  these  trustees  have  per- 
sistently and  purposely  absented  themselves 
from  regular  and  other  meetings  of  said 
council,  although  duly  notified  of  such  meet- 
ings, and  have  not  attended  any  meetings  of 
the  council  since  their  election ;  that  re- 
spondent Hoyer  bias  filed  his  resignation,  up- 
on which  no  action  has  been  or  could  be 
taken  because  of  the  Impossibility  of  hold- 
ing a  meeting;  that  the  whole  dumber  of 
trustees  is  six  and  by  the  refusal  and  neg- 
lect of  respondents  to  attend  meetings  of  the 
council  it  is  impossible  to  transact  business 
for  want  of  a  quorum ;  that  urgent  public 
business  requires  action  by  said  council,  and 
that  municipal  affairs  are  at  a  standstill; 
that  the  bond  of  persons  desiring  to  sell  in- 
toxicating liquors,  a  druggist's  bond,  and 
also  the  bonds  of  the  village  clerk  and  treas- 
urer, hare  been  presented  for  approval;  that 
action  by  the  council  relative  to  levying  the 
taxes  assessed  for  the  current  year  must  be 
taken;  that  bills  and  accounts  must  be  au- 
dited and  allowed.  Petltoner  alleges  "that  be 
is  a  taxpayer  of  said  village,  and  makes  this 
petition  as  such,  and  as  president  of  said 
village,  on  his  own  part  and  behalf,  and  on 
the  part  and  behalf  of  the  village  of  Climax 
as  Its  president"  He  asked  for  a  peremptory 
mandamus  against  respondents  requiring 
them  to  attend  the  next  regular  meeting  of 
the  council  of  said  village  to  be  held  on  a 
date  and  hour  named,  "to  perform  the  said 
several  duties  and  the  duties  devolving  upon 
them  as  trustees  of  said  village."  An  order 
to  show  cause  was  Issued,  and,  after  a  bear- 
ing before  said  court,  a  writ  of  mandamus 
was  granted. 

It  has  become  the  settled  policy  of  this 
court  to  deny  the  writ  of  mandamus  to  com- 
pel the  performance  of  public  duties  by  pub- 
lic officers,  except  where  a  specific  right  is 
Involved  not  possessed  by  citizens  generally. 
People  V.  Whipple,  41  Mich.  548,  49  N.  W. 
922;  People  v.  Ihnkcn,  129  Mich.  466,  89 
N,  W.  72. 

It  Is  contended  by  relator  that  the  case 
at  bar  is  distinguishable  from  the  cases  cit- 
ed. If  this  is  so,  it  must  be  l>ecause  the  pe- 
titioner has  made  It  appear  that  he  has  a 
speclflc  right  involved,  as  distinguished  from 
the  right  of  citizens  generally.    This  must  be 


on  account  of  his  official  position,  for  as  an 
ordinary  citizen  he  makes  no  showing  of  any 
specific  right.  It  Is  urged  that  under  the 
statute  he  Is  chief  executive  officer  of  the 
village,  required  to  preside  at  council  meet- 
ings, and  be  deemed  a  member,  but  shall  have 
no  right  to  vote  upon  any  question  except 
In  case  of  a  tie;  that  It  is  his  duty  to  give' 
the  council  Information  as  to  the  affairs 
of  the  vlllnge  and  make  recommendations,  to 
exercise  supervision  over  the  affairs  of  the 
Tillage  and  over  public  property,  and  see  that 
the  laws  relating  to  the  village  and  the  or- 
dinances and  regulations  of  the  council  are 
enforced.  He  is  not  by  this  statute  vested 
with  any  specific  right,  distinguishable  from 
the  rights  of  citizens  generally,  which  will 
bring  him  within  the  decisions  of  this  court 
and  entitle  him  to  relief  by  mandamus  in  this 
case 

A  general  violation  of  a  public  duty  Is 
charged  against  respondents,  and  the  case 
is  not  distinguishable  from  the, cases  cited, 
supra.  The  statute  referred  to  provides  that 
the  council  may  provide  by  ordinance  for 
compelling  the  attendance  of  its  members 
at  its  meetings.  No  action  has  ever  been 
taken  uuder  this  provision.  It  is  evident 
that  these  respondents  have  combined  to  pre- 
vent a  quorum  of  the  council  from  meeting. 
We  do  not  find  in  this  record  any  justifica- 
tion for  such  contract;  but  as  we  said  in 
the  Whipple  Case:  "Courts  are  not  created 
to  conduct  municipal  affairs.  •  •  •  xhe 
remedy,  If  there  is  one,  is  not  judicial." 

The  judgment  of  the  circuit  court  is  re- 
versed. The  order  granting  a  writ  of  man- 
damus Is  vacated  and  set  aside^  and  the  man- 
damus proceedings  dismissed. 

BLAIR,  0.  J.,  and  MONTGOMERY  and 
McALVAY,  JJ.,  concurred  with  BROOKE,  J. 

GRANT,  J.  I  concur  In  the  result  reached 
by  my  Brother  BROOKE  In  this  case,  for 
the  sole  reason  that  the  power  to  control 
and  compel  the  attendance  of  members  of  de- 
liberative and  legislative  bodies  and  their 
officers  Is  lodged  in  those  bodies  and  not  in 
the  courts.  In  the  present  case  it  appears 
that  this  power  Is  by  the  municipal  charter 
lodged  In  the  common  council.  This  is  not  a 
case  of  an  officer,  municipal  or  other,  upon 
whom  Is  expressly  Imposed  the  duty  to  en- 
force legislative  enactments.  There  may  be 
many  cases  where  a  minority  of  a  legislative 
body  may  feel  Justified  in  preventing  a  quor- 
um by  their  absence,  and  thus  prevent  the  ac- 
complishment of  enactments  or  the  adoption 
of  policies  which  they  deem  unwise.  Where 
such  bodies,  the  creatures  of  the  Legislature, 
are  not  expressly  endowed  with  the  power 
to  compel  the  attendance  of  their  members, 
the  power  is  nonexistent  and  courts  cannot 
supply  It.  Such  I  understand  to  be  the  basis 
of  the  cases  of  People  v.  Whipple,  41  Mich. 
548.  49  N.  W.  922,  and  People  v.  Ihnken,  129 


Digitized  by  LjOOQ  l€ 


286 


122  NORTHWESTERN  REPORTER. 


(Mich. 


Mlcb.  468,  89  N.  W.  72.  To  snpply  thl8  power 
by  court  decisions  would  be  an  act  of  ludidal 
legislation. 


GOWAN  T.  SMITH,  PoUce  Com'r. 
(Supreme  Court  of  Michigan.     July  6,  1909.) 

1.  MnNICIPAL     COBPOBATIONB      ((      181*)— PO- 
LICE   COMUISSIONERS — POWEBS. 

Comp.  Lawa  1897,  §  5395,  requires  police 
officers  to  close  all  saloons,  bouses,  or  places 
which  shall  be  found  open  after  plosing  hours, 
and  to  report  forthwith  all  such  violations  to 
the  prosecuting  attorney,  whose  duty  it  shall  be 
to  immediately  prosecute  for  such  violations. 
Any  person  found  violating  the  section  is  de- 
clared guilty  of  a  breach  of  the  peace  and  pun- 
ishable accordingly,  and  may  be  arrested  with- 
out process.  All  officers  authorized  to  make  ar- 
rests for  breach  of  the  peace  may  make  arrestii 
under  such  section  as  in  any  other  case  of 
breach  of  the  peace.  Held,  that  a  police  com- 
missioner under  such  section  is  only  authoriz- 
ed to  collect  evidence  against  offending  saloon 
keepers,  and  if  such  evidence  is  sufficient  to 
warrant  a  complaint,  then  to  make  same  and 
proceed  In  the  ordinary  prosecution  thereof,  and 
has  no  authority  to  summarily  close  any  saloon 
found  open  in  violation  of  law. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Dec.  Dig.  i  181.*] 

2.  Mandamus  (t  99*)  — Pubuo  Opticials  — 
Enfobceuert  or  Cbdunal  Law. 

While  mandamus  may  issue  against  a  pub- 
lic official  to  compel  performance  of  a  specific 
ministerial  act,  it  will  not  lie  to  compel  omcialb 
to  enforce  the  criminal  law  by  making  com- 
plaint for  its  violation  and  obtaining  the  arrest 
of  the  offender,  such  being  a  discretionary  ex- 
ecutive power  not  subject  to  control  by  the 
courts. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Dec.  Dig.  i  99.*] 

3.  MANDAinrs  (I  28*)— Scope  of  Wbit— Liq- 
xroB    Law— Enfobceicent — Pbivatb    Rela- 

TOB. 

^When  a  physician,  the  owner  of  a  sanita- 
rium, whose  business  was  Injured  by  the  open 
violation  of  law'  by  an  adjoining  saloon  keeper, 
ai>plled  without  success  to  the  city  police  com- 
missioner to  vacate  a  rule  made  by  him  permit- 
ting saloons  to  remain  open  on  Sunday  between 
12  o'clock  noon  and  8  o'clock  p.  m..  In  viola- 
tion of  the  laws  of  the  state,  and  to  close  the 
saloon  in  question,  and  had  been  denied  the  use 
of  the  name  of  the  prosecuting  attorney  to  in- 
stitute mandamus  proceedings  to  compel  the  po- 
lice commission  to  enforce  the  law,  be  could  not 
maintain  such  proceeding  on  his  own  relatioiyP, 

[EXi.  Note.— For  other  cases,  see  Mandamus, 
Cent.  Dig.  SI  &4,  65;   Dec.  Dig.  |  23.*] 

Grant,  J.,  dissenting. 

Certiorari  to  Circuit  Court,  Wayne  Coun- 
ty;  Joseph  W.  Donovan,  Judge. 

Mandamus,  on  relation  of  William  B.  Ck>w- 
an,  against  Frederick  W.  Smith,  Police  Com- 
missioner of  the  City  of  Detroit  Prom  an 
order  denying  the  writ,  relator  brings  cer- 
tiorari.   Affirmed. 

The  purpose  of  this  proceeding  Is  to  re- 
view by  the  writ  of  certiorari  the  action  of 
the  respondent  in  refusing  an  order  to  show 
cause  upon  a  petition  by  the  relator  for  a 
peremptory  mandamus  to  compel  Frederick 
W.  Smith,  police  commissioner  of  the  city  of 


Detroit,  to  enforce,  generally  and  In  a  specif- 
ic Instance  a  statute  and  an  ordinance  of  the 
city  controlling  and  regulating  the  liquor 
saloons  In  that  city,  which,  according  to  the 
brief  In  behalf  of  the  respondent,  number 
1,780,  and  to  set  aside  his  order  or  Instruc- 
tion permitting  saloons  to  keep  open  on  Sun- 
days from  12  o'clock  noon  to  8  o'clock  p.  m. 
So  far  as  material  to  the  questions  Inyolved, 
the  statement  of  the  petition  is  as  follows: 

The  relator  la  a  physician  and  a  citizen 
of  Detroit;  in  1902  he  established  a  sani- 
tarium and  residence  for  himself  and  family 
at  No.  7C>-77  East  High  street ;  he  has  since 
conducted  his  business,  whidi  has  become 
successful  and  profitable ;  at  the  time  he  es- 
tablished said  sanitarium  no  saloons  existed 
in  the  vicinity;  two  years  ago  one  Snook 
opened  a  saloon  adjacent  to  this  sanltariom ; 
said  saloon  has .  been  conducted  In  constant 
and  open  violation  of  the  statute  and  ordi- 
nance; SQch  open  violations  have  greatly 
Injured  the  relator's  business,  and  threaten 
Its  ruin ;  he  applied  to  said  police  commis- 
sioner, both  orally  and  In  writing,  to  enforce 
the  statute  and  ordinance,  and  to  Tacate  the 
order  which  said  commissioner  had  made 
permitting  saloons  to  remain  open  on  Sun- 
days between  12  noon  and  8  o'clock  p.  m.,  in 
violation  both  of  the  law  of  the  state  and 
the  ordinance  of  the  city ;  said  commissioner 
not  only  refused  to  take  any  action  In  the 
matter,  bnt  promptly  ordered  the  relator 
from  his  office;  he  applied  to  the  prosecut- 
ing attorney,  asking  for  the  use  of  his  name 
as  relator  in  this  petition,  and  said  prose- 
cuting attorney  absolutely  declined  the  use  of 
his  name  for  that  purpose.  The  petition  was 
accompanied  by  affidavits  sustaining  the  al- 
legations in  the  petition.  These  affidavits,  if 
true,  show  that  commissioner  Smith,  the 
head  of  the  police  department  in  Detroit,  has 
ignored  both  the  law  of  the  state  and  the 
city  ordinance,  and  assumed  to  control  mat- 
ters which  are  exclusively  within  the  prov- 
ince of  the  Legislature  and  the  common  coon- 
dl. 

The  petitioner  prays  "that  a  peremptory 
.writ  of  mandamus  may  be  Issued  out  of  and 
under  the  seal  of  this  honorable  court  com- 
manding the  said  Frederick  W.  Smith,  police 
commissioner  of  the  city  of  Detroit,  his  sub- 
ordinates and  agents,  to  obey  and  enforce 
the  law  and  ordinances  as  aforesaid,  as  it  is 
the  duty  of  the  said  Smith  and  his  subor- 
dinates, which  they  owe  to  your  petitioner 
and  to  the  public  generally  as  public  officials 
under  and  by  virtue  of  their  respective  of- 
fices, which  they  hold,  and  that  the  said 
Smith  vacate  his  said  rule  and  order  permit- 
ting the  saloons  in  the  city  of  Detroit  to  I>e 
open  and  transact  business  from  12  o'clock 
noon  on  Sundays  until  8  o'clock  in  the  after- 
noon of  said  days,  and  particularly  command- 
ing the  said  Smith  to  close  or  cause  to  be 
closed  the  said  Snook's  saloon  aforesaid,  in. 


•For  oUmt  cum  see  tame  topic  and  •ecUon  NUMBEB  la  Deo.  t  Am.  Digs.  U07  to  dato,  A  Reportor  IndozM 


Digitized  by  VjOOQ  l€ 


HldL) 


GOWAN  T.  SMITH. 


287 


accordance  with  the  state  law  and  the  city 
ordinance  aforesaid." 

It  la  nnnecessary  to  farther  refer  to  the 
facts  set  forth  in  the  petition  and  affidavits 
attached  thereto.  The  respondent  refused 
to  issue  an  order  to  show  cause,  In  the  fol- 
lowing language: 

"The  legal  questions  involved  in  this  pe- 
tition, nnder  a  similar  state  of  facts,  have 
already  been  before  this  court  for  Judicial 
determination.  The  writ  of  mandamtis  is  an 
extraordinary  writ,  to  be  granted  only  when 
the  facts  submitted  are  not  in  controversy 
and  the  l^al  right  is  clear  and  certain.  This 
petition  seeks  to  transfer  the  enforcement  of 
a  criminal  statute  within  the  city  of  Detroit 
to  the  circuit  conrt  from  the  courts  express- 
ly given  such  Jurisdiction  by  the  laws  of  this 
state.  It  is  by  no  means  clear  from  the  peti- 
tion that  adequate  remedy.  Is  not  afforded 
in  such  courts,  nor  is  the  Jurisdiction  of  this 
court  over  the  subject-matter  so  clear  as  to 
Justify  this  court  at  this  time  In  granting 
the  petition  prayed. 

"In  view  of  the  further  facts  that: 

"(1)  A  test  case  Involving  a  similar  condi- 
tion is  now  before  the  Supreme  Court  of  this 
state  on  appeal  from  the  circuit  court  for 
Wayne  county ; 

"(2)  Four  of  the  judges  of  this  court  sit- 
ting en  banc  have  refused  to  assume  Juris- 
diction of  a  similar  application — 

"I  decline  to  grant  the  order  herein 
prayed." 

In  his  return  he  gives  as  a  farther  reason 
that  the  respondent,  Mr.  Smith,  "bad  never 
been  served  with  process  or  had  a  day  in 
court  in  this  proceeding." 

Argued  before  BLAIR,  C  3.,  and  GRANT, 
MONTGOMERY,  OSTRANDER,  HOOKER, 
MOOBB,  McALVAY,  and  BROOKE,  JJ. 

Proctor  K.  Owens,  for  appellant.  James 
0.  Marfln,  William  L.  Carpenter,  and  Hln- 
ton  E.  Spalding,  for  appellee. 

GRANT,  J.  (after  stating  the  facts  as 
above).  1.  The  defense  that  the  respondent. 
Smith,  "bad  never  been  served  with  process 
or  had  a  day  in  court  in  this  proceeding," 
was  not  made  upon  the  hearing  in  the  court 
below.  It  Is  true  that  the  prayer  of  the  peti- 
tlon  is  for  a  peremptory  writ  of  mandamus. 
This  does  not  mean  that  the  petitioner  asks 
for  the  writ  without  giving  the  respondent 
an  opportunity  to  show  cause  against  its  is- 
suance. Neither  this  court  nor  any  circuit 
court  In  this  state  within  my  knowledge 
and  experience  ever  issued  a  peremptory  writ 
upon  the  mere  flllng  of  the  petition.  In  some 
instances  courts  have  issued  an  alternative 
order  directing  the  action  prayed  for  to  be 
taken,  or  that  the  respondent  show  cause 
why  he  should  not  take  It  The  presumption 
is  that  public  officers  perform  their  duty.  It 
would  be  unseemly  and  grossly  unjust  for 
a  Judge  to  assume,  without  evidence,  that  an 
officer  has  not  only  disregarded  hl^  duty. 


but  has  assumed  to  supplant  a  law  of  the 
state  by  an  edict  of  his  own.  Only  after 
an  answer  admitting  the  facts  alleged,  or 
upon  proof  thereof  after  its  denial,  should 
a  court  determine  that  an  officer  has  re- 
fused to  perform  his  duty  and  issue  the 
peremptory  writ  If,  therefore,  a  case  was 
made  upon  the  face  of  the  petition  for  the 
action  of  the  court  thereon,  the  court  should 
have  Issued  an  order  to  show  cause.  It  goes 
without  saying  that  the  respondent  was  enti- 
tled to  his  day  in  court  The  Issuance  Of  an 
order  to  show  cause,  service  of  the  same,  and 
a  copy  of  the  petition  upon  him  constitute 
due  process  of  law,  giving  him  his  day  in 
court  We  must  regard  the  ordejr  of  the 
court  as  one  denying  an  order  to  show  cause, 
and  determine  the  case  upon  that  basis. 

Z  It  is  next  urged  that  the  proper  party 
is  not  before  the  court,  as  the  relator  is  a 
private  individual  and  is  therefore  not  en- 
titled to  coerce  the  performance  of  a  pub- 
lic duty  by  a  public  officer;  citing  Sterling 
V.  Regents  of  the  University,  110  Mich.  368, 
68  N.  W.  253,  34  L.  R.  A.  150,  and  Ayres  v. 
State  Auditors,  42  Mich.  422,  4  N.  W.  274. 

In  Sterling  v.  Regents  of  the  University, 
the  point  was  not  raised  by  counsel.  The 
court,  however,  referred  to  it  and  stated  that 
"the  petitioner  does  not  in  his  petition  show 
any  interest  In  the  matter,  or  the  right  to 
question  the  action  of  the  Board  of  Regents, 
or  that  he  was  a  citizen  of  the  state,  or  that 
he  was  in  any  manner  injured  by  the  action 
of  the  board."  The  court  then  proceeded  to 
dispose  of  the  question  in  the  case  upon  the 
merits. 

In  Ayres  v.  State  Auditors,  the  Attorney 
General  had  placed  himself  in  opposition  to 
the  petitioner,  and  appeared  as  attorney  for 
the  respondents.  The  court  stated  the  gener- 
al rule  In  regard  to  the  necessary  party  in 
such  proceedings,  and  said  that  the  court 
in  certain  decisions  (citing  them)  had  taken 
pains  to  "guard  against  any  decision  that 
would  prevent  complaint  by  a  private  re- 
lator, where  the  public  Interests  require 
prompt  action,  and  where  the  public  prose- 
cutors will  not  interfere."  The  court  re- 
tained Jurisdiction,  proceeded  to  dispose  of 
the  question  involved,  and  granted  the  per- 
emptory writ 

In  this  case  the  relator,  a  private  citizen, 
shows  not  only  bis  Interest  and  injury  as  a 
citizen  common  to  all  others  resulting  from 
the  nonenforcement  of  the  law,  but  also 
shows  a  direct  injury  both  to  his  property, 
his  business,  and  the  health  of  his  family. 
He  shows  that  his  application  to  the  respond- 
ent to  enforce  the  law  in  this  specific  case 
met  with  a  denial,  and  that  his  application 
to  the  prosecuting  attorney  for  the  use  of 
his  name  was  denied.  Under  the  clear 
weight  of  authority,  and  in  reason,  the  pe- 
titioner was  in  position  to  launch  this  suit 
Merrill  on  Mand.  g  230 ;  People  v.  Board  of 
Education,  127  111.  613,  21  N.  E.  187 ;  Chum- 
asero  t.  Potts,  2  Mont  242;    13  Enc.  PL  & 


Digitized  by  VjOOQ  IC 


288 


122  NORTHWESTERN  REPORTER. 


(Mich. 


Pr.  623  et  seq. ;  State  v.  Xakey,  43  Wash.  15, 
85  Pac.  990 ;  9  Am.  &  Eng.  Ann.  Cas.  1071 ; 
Benibe  v.  Wheeler,  128  Mich.  32,  87  N.  W. 
60 ;  Glddlngs  v.  Secretary  of  State,  93  Mich. 
1,  52  N.  W.  944,  J6  L.  R.  A.  402. 

"The  true  distinction  seeois  to  be  that 
where  the  right  or  duty  in  question  affects 
the  state  in  its  sovereign  capacity,  as  dis- 
tinguished from  the  people  at  large,  the  pro- 
ceedings must  be  Instituted  by  the  proper 
public  oflScer;  but  that  if  the  general  pub- 
lic, as  distingnished  from  the  state  in  its 
sovereign  capacity,  is  affected,  any  member 
of  the  state  may  sue  out  the  writ."  26  Cyc. 
402,  403. 

See,  also,  2  Cur.  Law,  783;  8  Cur.  Law, 
825 ;  Van  Horn  v.  State,  61  Neb.  232,  70  N. 
W.  941. 

3.  We  now  come  to  the  meritorious  ques- 
tion in  the  case,  naoMli-,  Does  the  petition 
present  a  state  of  facts  whicb,  If  admitted  or 
proven,  Justify  the  Issuance  <tf  the  writ  to 
compel  the  respondent:  First,  to  set  aside 
an  order  or  instruction  (the  name  la  imma- 
terial) directing  the  police  officers  under  his 
control  to  permit  saloons  to  keep  open  in  di- 
rect violation  of  the  law  of  the  state  and  of 
the  ordinance;  second,  to  compel  the  re- 
spondent to  enforce  the  law  In  the  particu- 
lar case?  The  use  of  the  writ  to  compel  the 
performance  of  official  duty  and  to  restrain 
illegal  official  action  is  old  and  too  well  es- 
tablished to  require  the  citation  of  authori- 
ties. The  cases  wherein  writs  have  been  is- 
sued against  officers  are  numbered  by  the 
thousands,  from  the  early  case  of  King  and 
Montague,  and  others,  1  Bam.  72,  wherein 
the  writ  was  Issued  to  compel  three  justices 
of  the  peace  to  put  into  execution  the  stat- 
ute of  forcible  detainer,  down  to  the  pres- 
'  ent  time. 

The  courts  of  this  state  have  Issued  the 
writ  against  all  state  officers  (aside  from  the 
executive),  county  and  township  officers,  sher- 
iffs, police  boards,  boards  of  health,  etc.  The 
decisions  of  this  court  are  collated  in  Ste- 
vens' Mich.  Pr.  S  4(50.  The  exercise  of  this 
power  by  the  courts  is  essential  to  good  gov- 
ernment. It  is  said  by  the  Supreme  Court 
of  Massachusetts,  in  Strong,  Petitioner,  20 
Pick.  484:  "In  every  well-constltuted  govern- 
ment, the  highest  Judicial  authority  must 
necessarily  have  a  supervisory  power  over 
all  inferior  or  subordinate  tribunals,  magis- 
trates, and  all  others  exercising  public  au- 
thority. If  they  commit  errors,  it  will  cor- 
rect them.  If  they  refuse  to  perform  their 
duty,  it  will  compel  them;  in  the  former 
case  by  writ  of  error,  in  the  latter  by  man- 
damus." 

Are  police  officers,  upon  refusal  to  execute 
a  specific  law,  or  to  enforce  it  in  specific  cases 
arising  under  it,  exempt  from  this  jurisdic- 
tion of  the  courts?  The  enforcement  of  the 
law  by  police  officers  is  Just  as  Important 
and  essential  to  good  government  as  is  the 
enforcement  of  the  law  by  other  public  offi- 
cials.   A  police  officer  has  no  more  right  to 


refuse  to  perform  his  duty  than  has  a  so- 
pervlsor,  a  health  officer,  a  pure  food  com- 
missioner. Secretary  of  State,  Auditor  (Jener- 
al,  or  any  other  of  the  numerous  officers  elect- 
ed and  appointed  to  carry  out  the  provisions 
of  the  laws  which  the  people  have  enacted 
for  their  government  and  the  public  good. 

The  learned  counsel  for  rcsi)ondent  says 
In  his  brief :  "It  is  as  much  the  duty  of  the 
relator,  having  personal  knowledge  of  the 
facts,  to  lodge  a  complaint  before  the  police 
courts,  as  it  would  be  the  duty  of  the  pros- 
ecuting attorney  or  the  police  department 
if  they  had  knowledge  of  the  facts."  This,  in 
my  Judgment,  is  not  the  law.  It  is  not  the 
legal  or  moral  duty  of  the  private  citizen  wno 
has  knowledge  or  Information  of  a  violation 
of  the  law  by  a  saloon  keeper,  or  gambler, 
or  keeper  of  a  house. of  prostitution  to  aban- 
don his  work,  go  to  the  police  court,  and 
make  a  complaint.  In  doing  so  he  would  In- 
cur not  only  the  hostility  of  the  lawbreaker 
and  his  patrons,  but  would  run  the  risk  of 
personal  violence  .and  Injury  to  his  proi)erty. 
Such  attacks,  injuries,  and  threats  have  not 
bren  uncommon.  No  such  duty  is  lmi)osed 
upon  the  private  citizen  by  law  or  by  any  de- 
cision of  any  court  These  lawbreakers  are 
wont  to  as-sume  that  the  private  citizen  is 
acting  lu  such  prosecutions  without  any  legal 
duty,  that  their  violations  of  law  do  not  con- 
cern him,  and  thaVv^o  long  as  police  officers 
permit  lawbreaklng  the  private  citizen  has 
no  business  to  lnterfert\  The  private  citizen, 
as  a  part  of  his  moral  ifluty  to  the  public, 
should  undoubtedly  conv^^o  the  police  of- 
ficers any  information  he  maX  have  In  regard 
to  a  crime  believed  to  have  oBp  committed, 
and  the  perpetrator  thei«of.  Sq^h  communi- 
cations are  al)soIuteiy  prlvilegel^-     Shingle- 


meyer  v.  Wright,  124  Mich. 


,82  N.  W. 


887,  50  L.  K.  A.  129.  We  there V*"'^  *''"* 
the  officials  were  under  legal  as  well V*  moral 
obligation  to  keep  such  communica\°°*  **■ 
cret.  I  submit  that  this  is  upon  the  Y^*"'^ 
that  these  officers  of  the  law  are  clV'^^ 
with  the  legal  duty  to  investigate  crimelM"*' 
make  complaints  when  they  have  be?*""' 
satisfied  from  their  investigation  that  a  ^'" 
tain  party  Is  the  guilty  one.  It  is  not  r* 
theory  of  this  government  that  private  c 
zens  shall  take  care  that  those  laws  be  e.if*" 
cnted  in  which  all  the  people  are  Interesti'* 
and  which  concern  the  whole  body  of  cl4 
zens.  The  people,  through  their  Constitutlo^ 
and  laws,  have  provided  officers  whose  dut' 
it  Is  to  see  that  the  laws  are  executed.  ii( 
many  cases  the  duty  is  specifically  imposed  by 
statute  law;  in  other  cases  it  is  necessarily' 
Implied.  In  either  case  the  duty  is  ImperaV 
tive.  The  law  in  this  case  specifically  imposJ 
es  that  duty  upon  the  respondent.  It  Is  ex/ 
pressly  made  "the  duty  of  sheriffs,  marshalsi' 
constables  and  police  officers  to  close  all  s  J' 
loons,  houses  or  places  that  shall  be  foui  i?^ 
open  in  violation  of  the  provisions  of  tlJ ''' 
section,  and  to  report  forthwith  all  such  v;  *" 
latioQS  to  the  prosecuting  attorney  whose  (<  '"* 


DigitzedbyLiOOgle        f 


Mlcb.) 


OOWAN  ▼.  SMITH. 


289 


ty  it  shall  be  to  Immediately  prosecute  for 
such  Tiolations."    Comp.  Laws,  S  5395. 

By  section  5400  It  is  made  "the  duty  of  vil- 
lage and  city  marshals,  and,  in  cities  having 
no  marshal,  of  the  chief  of  police,  or  some 
subordinate  appointed  by  such  chief,  to  visit, 
at  least  once  in  each  week  all  places  within 
their  req>ectlve  Jurisdictions  where  any  of 
said  liquors  are  sold  or  Icept,  to  learn  if  any 
of  the  provisions  of  this  act  have  been  or  are 
being  violated ;  and  whenever  any  of  the  offi- 
cers above  mentioned  shall  learn  of  a  viola- 
tion of  any  of  the  provisions  of  this  act.  It 
shall  be  Ms  duty  to  enter  complaint  before 
some  Justice  of  the  peace  of  the  proper  town- 
ship or  city,  or  police  Justice,  as  the  case  may 
be,  and  to  do  whatever  shall  be  necessary  to 
bring  the  offender  to  Justice." 

The  duty  could  not  be  more  explicitly  or 
forcibly  expressed.  If  the  Legislature  bad 
intended  to  impose  a  like  duty  upon  private 
citizens,  it  certainly  would  have  expressly 
enacted  a  provision  so  declaring,  for  no  sncb 
duty  Is  imposed  by  the  common  law.  The  im- 
position of  such  duty  upon  the  private  citi- 
zen would  be  absurd  and  of  doubtful  consti- 
tutionality. Where  a  discretion  is  vested  in 
the  officer  or  an  Inferior  tribunal,  courts  can- 
not interfere  with  the  exercise  of  this  discre- 
tionary power,  unless  that  power  is  exercised 
with  manifest  Injustice  and  the  discretion 
Is  abused.  State  v.  Public  Schools,  134  Mo. 
296,  35  S.  W.  617,  5ii  Am.  St.  Eep.  503. 

The  petition  In  this  case  presents  two  dis- 
tinct propositions:  (1)  That  the  respondent 
has  made  an  order  suspending  the  law  of  the 
state,  and  directing  that  saloons  may  be  kept 
open  contrary  to  Its  provisions.  (2)  That  he 
refuses  to  enforce  the  law  generally  and  in 
a  specific  case. 

Upon  the  first  proposition,  I  think  there  is 
DO  doubt  of  the  Jurisdiction  and  power  of  the 
court  to  issue  the  writ  The  power  of  courts 
to  compel  by  their  mandates  ministerial  offi- 
cers and  Inferior  tribunals  to  vacate  Illegal 
orders  made  by  them  cannot  be  doubted.  The 
necessity  of  such  a  Jurisdiction  and  power  is 
obvious.  Upon  this  point  we  are  not  without 
precedent  Where  the  police  commissioners 
of  a  city  made  an  order  directing  its  chief  of 
police  not  to  interfere  with  the  sale  of  wine 
and  beer  upon  Sunday,  the  court  issued  the 
writ  compelling  the  setting  aside  of  such  an 
order.    State  v.  Francis,  95  Mo.  44,  8  S.  W.  1. 

While  tbe  petition  In  this  case  prays  for 
an  order  to  compel  the  general  enforcement 
of  the  law,  It  also  prays  for  an  order  to  com- 
pel tbe  respondent  to  investigate  and  pro- 
ceed to  enforce  tbe  law  In  a  particular  In- 
stance^ Where  a  county  treasurer  Issued 
tax  receipts  to  saloon  keepers  without  re- 
quiring tbe  statutory  bond,  a  petition  was 
presented  to  this  court  alleging  a  general  vio- 
lation of  the  law,  without  specifying  any  par- 
ticular instance,  and  this  court  Issued  tbe 
writ  of  mandamus  to  compel  performance  of 
duty  on  his  part.  Attorney  General  v.  Hueb- 
ner,  91  Mich.  436,  61  N.  W.  1072. 

122  N.W.-19 


So,  where  it  was  alleged  that  the  police 
Justice  refused  to  accept  second  complaints 
against  violators,  of  the  liquor  law,  this  court 
held  that  "it  is  the  clear  duty  of  the  police 
Justice  to  receive  and  act  upon  complaints 
regularly  offered  for  a  violation  of  the  liquor 
law,  whether  the  offense  is  charged  to  have 
been  committed  by  a  party  against  whom 
one  complaint  is  pending  or  not."  The  man- 
damus In  that  case  was  denied,  for  the  sole 
reason  that  the  respondent  returned  that  he 
was  willing  to  receive  the  complaints  and  act 
upon  them.  Sadler  v.  Sheahan,  02  Mich.  630, 
62  N.  W.  1030. 

Should  tbe  dairy  and  food  commissioner, 
or  the  game  warden,  or  the  fish  commission- 
er, or  the  railroad  commissioner,  or  the  in- 
surance commissioner,  or  the  State  Board  of 
Health,  either  perversely  or  through  misap- 
prehension of  the  law,  issue  an  order  permit- 
ting violations  of  the  law,  would  not  the 
courts  have  Jurisdiction  to  compel  the  officers 
to  rescind  such  action,  and  Inform  them  as 
to  their  duty  under  the  law?  Certainly  a 
police  officer  is  not  hedged  alwut  with  any 
sacredness  of  person  or  prerogative  which 
exempts  him  from  the  like  mandate  of  the 
court  when  he  assumes  to  permit  by  his  or- 
der violations  of  tbe  law.  Tbe  books  furnish 
many  cases  where  officers  have  been  put  in 
motion  by  the  writ  of  mandamus  when  their 
duties  went  unperformed. 

Under  circumstances  almost  parallel  wltb 
those  In  this  case,  the  Supreme  Court  of  New 
Hampshire  issued  the  writ  of  mandamus  to 
compel  police  officers  to  perform  their  duty. 
In  that  case,  as  in  this,  the  claim  was  made 
that  courts  would  not  Issue  tbe  writ  where 
It  Involved  a  long  series  of  continuous  acts 
and  virtually  amounted  to  a  supervision  by 
tbe  courts  of  the  enforcement  of  the  law 
by  municipal  officers.  The  court  said:  "Con- 
ceding that  mandamus  may  not  be  an  appro- 
priate remedy  to  compel  a  long  series  of  con- 
tinuous acts,  there  Is  no  reason  to  apprehend 
that  such  acts  will  be  necessary  In  tbe  pres- 
ent case,  but  quite  tbe  contrary.  Neither  the 
petition  nor  the  order  of  the  court  necessari- 
ly requires  continuous  action  by  tbe  defend- 
ant He  is  merely  required,  and  in  accord- 
ance with  his  legal  duty,  to  enforce  the  pro- 
visions of  section  16  (Pub.  St  1901,  c.  112) 
against  the  specific  parties,  but  in  no  partic- 
ular way ;  in  other  words,  'to  put  himself  In 
motion,'  to  substitute  action  for  nonaction, 
prohibition  for  permission,  and  to  do  a  spe- 
cific thing  which  experience  has  shown  to 
be  so  efficacious  against  violators  of  that  sec- 
tion that  repeated  prosecutions  of  them  are 
rarely  found  to  be  necessary."  Ooodell  v. 
Woodbury,  71  N.  H.  878,  62  AO.  855. 

It  was  there  also  held  that  the  remedy  by 
removal  of  tbe  officer  was  not  an  adequate 
one.  The  court  said:  "It  is  a  fundamental 
rule  that  a  remedy  which  does  not  compel 
specific  performance  Is  Inadequate,  and  con- 
stitutes no  bar  to  a  writ  of  mandamua." 


Digitized  by  VjOOQ  IC 


290 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


See,  also,  19  Am.  &  Eng.  Enc.  Law  (2d 
Ed.)  747.       ' 

The  public-spirited  citizen  or  the  citizen 
Buffering  special  damages  Is  entitled  to  the 
shortest  route  to  Justice  and  enforcement  of 
law.  It  is  too  apparent  to  require  argument 
that  that  route  is  afforded  by  the  use  of  the 
speedy  writ  of  mandamus.  It  does  not  lie  in 
the  mouth  of  an  officer,  charged  with  this 
duty,  to  say  to  such  private  citizen:  "Make 
the  complaint  yourself,  or  resort  to  the  meth- 
od, if  any  is  provided,  to  have  me  removed 
from  office,  or  make  complaint  against  me 
in  the  courts  for  violation  of  my  duty,  as  Is 
provided  by  section  5390  of  the  liquor  law." 
The  removal  of  the  officer,  or  his  conviction 
for  refusal  or  neglect,  at  the  end  perhaps 
of  a  long  trial,  may  not  accomplish  the  result. 
His  successor  may  take  the  same  position  as 
did  his  predecessor.  Meanwhile  the  violation 
of  the  law  and  consequent  Injury  continue. 
Probably  in  most  cases,  where  the  writ  of 
mandamus  has  been  used,  the  law  makes 
some  provision  for  the  removal  of  the  offi- 
cer, or  provides  a  penalty  for  his  neglect  of 
duty.  It  Is  for  the  citizen  to  choose,  not 
for  the  officer  to  dictate,  the  remedy  he  will 
pursue. 

Where  the  mayor  and  common  council 
authorized  licensed  venders  to  vend  their 
wares  upon  the  streets  and  sidewalks  con- 
trary to  the  law,  and  the  officers,  author- 
ized to  keep  the  streets  clear,  were  requested 
to  remove  the  obstructions  and  refused,  the 
writ  of  mandamus  was  Issued  to  compel  the 
officers  to  perform  their  duty  and  remove 
the  obstructions.  People  v.  Mayor,  etc.,  59 
How.  Prac.  (N.  Y.)  277. 

Where  It  was  the  duty  Imposed  by  the  law 
upon  the  mayor  and  common  council  of  a 
city  to  keep  Its  streets  free  from  obstructions 
for  the  beneflt  of  the  public,  held,  that  the 
performance  of  such  duty  may  be  compelled 
by  a  citizen  through  mandamus,  without 
showing  that  he  had  any  legal  Interest  in  the 
suit.  People,  etc.,  v.  Harris,  203  111.  272,  67 
N.  E.  785,  96  Am.  St  Rep.  304.  In  that  ease 
there  may  have  been  as  many  obstructions 
in  the  street  in  proportion  to  the  Inhabitants 
as  there  are  saloons  in  the  city  of  Detroit. 
The  relator  in  that  case,  as  In  this,  selected 
one  Instance  of  an  open  violation  of  the  law 
and  the  refusal  of  the  officers  to  perform 
their  duty. 

In  State  of  Ohio  v.  Police  Board,  19  Wkly. 
Law  Bui.  (Ohio)  347,  the  police  board  was 
compelled  by  mandamus  to  enforce  the  law 
in  a  case  precisely  like  the  one  here  involved. 
While  that  case  was  in  a  nisi  priiis  court,  a 
portion  of  the  opinion  is  worthy  here  to  be 
quoted:  "Three  defenses  were  made  In  this 
ease.  The  first  Is  one  of  law,  challengmg 
the  Jurisdiction  of  this  court  The  other 
two  cannot  be  classified.  They  are  remarka- 
ble. They  are  reprehensible.  One  Is  that  the 
execution  of  the  law  was  not  practicable, 
and  that  was  one  of  the  reasons  why  nothing 


had  been  done;  and  to  sustain  that  view- 
It  was  said  that  a  number  of  cases  iuvolvlug 
violations  of  the  Sunday  law,  and  sent  to 
court  by  a  former  mayor,  have  been  riollie<i. 
This  court  takes  Judicial  notice  of  the  fact 
that  those  cases  are  still  on  Its  docket  and 
have  not  been  tried  for  want  of  time,  since 
the  present  incumbent  has  been  on  the  bench. 
Neither  the  board  nor  the  mayor  had  the 
right  to  decide  that  the  execution  of  the  law 
is  not  feasible.  They  should  do  their  duty, 
and  let  the  failure  to  execute  the  balance  of 
the  law,  if  any  should  occur,  rest  whore  it 
shall  belong.  Besides,  In  certain  contingen- 
cies and  certain  cases,  the  mayor  has  the 
power  to  try  the  cases  under  this  law,  and, 
with  or  without  the  aid  of  a  jury,  determine 
them  finally.  The  other  defense  mentioned 
is  that  the  law  had  not  been  enforced  be- 
cause there  was  a  diversity  of  sentiment 
touching  the  wisdom  and  rightfulness  of  the 
law.  But  whence  does  the  board  or  the 
mayor  derive  the  power  to  decide  that  the 
laws  may  be  repealed,  as  it  were,  because 
they  think  some  people,  even  a  large  number 
of  people,  are  opposed  to  their  execution? 
Nowhere  does  such  power  exist  Upon  a 
parity  of  reasoning,  nearly  every  law  might 
be  nullified  by  executive  and  judicial  officers. 
It  would  be  a  suspension,  a  repeal  of  law, 
by  those  who  have  not  the  power  to  do  such 
a  public  act,  by  those  whose  duty  it  Is  to 
enforce  the  law.  I  know  of  only  two  cases 
where  even  judicial  officers  have  a  right  to 
confine,  to  limit,  the  laws  in  the  enforcement 
of  them.  That  Is  where,  as  I^ord  Bacon  said, 
penal  laws  are  'sleepers  of  long,'  or  where 
they  have  'grown  unfit  for  the  time.'  But 
the  law  sought  to  be  enforced  here  Is  not 
of  either  class.  It  was  enacted  In  nearly 
its  present  form  a  few  years  ago,  and  only 
a  few  weeks  ago  re-euacted  by  the  supreme 
lawmaking  authority  of  this  state.  The 
logic  of  these  two  last-named  defenses  Is  the 
logic  of  nullification,  though  I  do  not  use 
this  term  In  a  political  sense  at  all.  The 
personal  or  private  opinions  of  the  judge 
of  this  court,  or  of  the  mayor,  or  of  the  mem- 
bers of  the  board  touching  the  expediency 
of  the  Sunday  law  under  consideration  ought 
to  have  no  Influence  upon  their  official  action. 
Where  their  duty  Is  dear,  they  forswear 
themselves  if  they  do  not  perform  it  They 
have  taken  an  oath  to  faithfully  discharge 
their  duty;  one  of  these  duties  is  to  carry 
Into  effect  the  laws  of  the  state  and  enforce 
their  solemn  mandates." 

Where  the  ordinance  of  a  city  required 
the  marshal  to  report  to  the  city  council  ev- 
ery month  the  names  of  all  engaged  In  the 
liquor  traffic,  and  to  notify  any  unlicensed 
liquor  dealers  to  cease  the  traffic,  and  to 
make  complaint  against  all  those  selling 
without  license,  the  relator,  a  school  district, 
filed  its  petition  for  the  writ  of  mandamus 
to  compel  the  icspondent.  the  city- marshal, 
to  enforce  this  law,  alleging  that  numerous 


Digitized  by  VjOOQ  l€ 


Mich.) 


QOWAN  V.  SMITH. 


291 


persons  and  firms  violated  It.  Issne  was 
Joined,  and  the  violation  of  the  law  estab- 
lished by  proof.  The  writ  was  Issued  to 
compel  the  performance  of  the  dnty.  State 
T.  Cnmmlngs,  IT  Neb.  311,  22  N.  W.  545. 

The  same  court  In  1904  (Moores  v.  State, 
71  Neb.  522,  99  N.  W.  249,  116  Am.  St.  Rep. 
605),  Issued  the  writ  of  mandamus  to  compel 
the  mayor  and  chief  of  police  to  enforce  the 
law  against  gamBUng,  the  petition  designat- 
ing the  name  of  the  alleged  offender  and  his 
place  of  business.  The  statute  law  In  that 
case  as  to  duties  of  oflScers  was  no  more 
specific  than  in  this.  The  court  said:  "It 
seems  clear  that  it  Is  the  duty  of  both  the 
chief  of  police  and  the  mayor  to  Interfere 
for  the  prevention  of  the  public  violation  of 
the  laws,  and  that  seems  to  be  all  which  is 
required  of  the  officers  by  this  mandamus. 
They  are  to  see  that  the  police  officers  under 
their  charge  Investigate  the  alleged  open 
violation  of  the  law  at  a  given  place,  and 
arrest  such  parties  as  are  found  in  the  act 
of  violating  It,  and  are  to  take  measures  for 
their  prosecution.  If  it  be  granted,  as  the 
trial  court  found,  that  an  open  and  public 
violation  of  the  law  Is  going  on  there,  it 
would  seem  that  It  is  clearly  within  the  pre- 
scribed duties  of  these  officers  to  take  such 
steps." 

In  the  unreported  case  of  Dakin  v.  Byrne, 
In  the  New  York  Court  of  Appeals,  decided 
In  1879,  a  petition  for  the  writ  of  manda- 
mns  was  filed  to  compel  the  closing  of  liquor 
saloons  upon  Sunday.  The  answer  denied 
the  allegations  of  the  writ,  viz.,  that  the  de- 
fendant intentionally  permitted  a  violation 
of  the  law.  Issue  was  Joined,  and  a  spe- 
cial verdict  was  rendered  "that  the  defend- 
ant had  failed -and  neglected  to  close  and 
keep  closed  certain  saloons  during  a  specif- 
ic period  of  time."  It  was  held  that  there 
was  no  finding  that  the  failure  to  enforce 
the  law  resulted  "from  a  design  to  allow 
the  law  to  be  systematically  violated,"  and 
the  peremptory  writ  was  denied  and  a  new 
trial  ordered.  This  was  affirmed  by  the 
Court  of  Appeals,  approving  the  opinion 
of  the  trial  court.  The  opinion,  which  was 
afilrmed  by  the  Court  of  Appeals,  is  found 
in  Mnndy  v.  Excise  Com'rs,  9  Abb.  N.  C. 
(N.  y.)  127. 

The  law  of  New  York  required  all  places, 
where  liquor  Is  sold,  to  be  closed  between 
the  hours  of  1  and  5  o'clock  In  the  morning. 
Certain  citizens  applied  for  the  writ  of  man- 
damus to  compel  the  officers  to  perform  their 
duty.  It  was  held:  "The  mandamus  may 
be  applied  for  by  any  citizen,  or  class  of 
citizens,  taking  an  interest  In  the  observance 
and  enforcement  of  that  part  of  the  law  re- 
quiring the  policemen  and  officers  of  the 
police  to  enforce  the  law,  and  require  the 
place  of  the  licensee  to  be  closed  during 
these  forbidden  hours.  People  v.  Daley, 
37  Ilnn,  4fil.  But,  to  entitle  the  applicants 
to  the  suit,  they  must  show  that  the  police 


commissioners,  or  the  superintendent  of  the 
police  force,  do  not  intend  to  secure  the  ob- 
servance of  the  law.  On  that  subject  their 
proof  is  materially  defective.  It  Is  not  to  be 
presumed  that  the  officers  mentioned  in  the 
statute  will  be  in  any  respect  delinquent 
in  the  performance  of  their  duty  by  this 
statute  so  clearly  enjoined."  In  re  Whitney 
(Sup.)  3  N.  y.  Supp.  838. 

Where  a  sheriff  refused  to  execute  a  writ, 
he  was  compelled  by  mandamus  to  do  so ;  the 
court  saying:  "Neither  a  remedy  by  criminal 
prosecution,  nor  by  action  on  the  case,  for 
neglect  of  duty,  would  supersede  that  by 
mandamus,  since  it  cannot  compel  a  specific 
act  to  be  done,  and  is,  therefore,  not  equally 
convenient,  beneficial,  and  effective."  Free- 
mont  V.  Crippen,  10  Cal.  211,  70  Am.  Dec. 
711. 

Where  the  excise  commissioners,  upon  the 
complaint  of  a  private  party,  for  which  the 
statute  expressly  provided,  heard  the  tes-- 
tlmony  but  did  not  decide  the  case,  the  writ 
was  issued  to  compel  them  to  decide  it.  The 
court  in  its  opinion  said:  "Of  what  avail 
to  the  people  would  be  the  complaints  of  pub- 
lic-spirited citizens,  residents  of  the  city, 
seeking  to  enforce  the  law  for  the  benefit  of 
all.  If  sudi  complaints  are  deemed  to  be  le- 
gally passed  upon  by  contemptuous  silence?" 
Saperstein  v.  UUman,  49  App.  Dlv.  446,  63  N. 
Y.  Supp.  626. 

The  writ  was  Issued  to  compel  school  trus- 
tees to  enforce  the  order  of  boards  of  health 
requiring  all  children  to  be  vaccinated  before 
they  were  permitted  to  attend  public  schools. 
It  was  there  held  that  "mandamus  is  the  prop- 
er remedy  to  compel  an  officer  to  perform 
a  public  duty  clearly  Imposed  by  law."  State 
V.  Bell,  157  Ind.  23,  60  N.  B.  672. 

Mr.  High  says  that  mandamus  lies  "to  com- 
pel a  public  officer  to  perform  a  duty  which 
is  imposed  upon  him  either  by  express  enact- 
ment, or  which  results  from  the  official  sta- 
tion which  he  holds,  and  that,  where  the 
officer  is  vested  with  no  discretion,  the  writ 
will  command  the  doing  of  the  very  act  it 
self."    High's  Ext.  Leg.  Rem.  H  33a,  34. 

Sec,  also,  5  Words  &  Phrases  Jud.  Def. 
4326. 

The  lodgment  in  an  officer  of  the  power  to 
enforce  a  law  necessarily  implies  the  duty 
of  enforcement. 

On  the  question  of  the  remedy  of  the 
private  citizen  by  mandamus  or  injunction, 
see.  In  addition  to  the  above  authorities,  In- 
gersoU  V.  Rousseau,  35  Wash.  92,  76  Pac 
513,  1  Am.  &  Eng.  Ann.  Cas.  *3.5;  Haggard 
V.  Stehlln  et  al.,  137  Ind.  45,  33  N.  E.  997, 
22  L.  R.  A.  577. 

We  have  not  discussed  those  authorities 
which  hold  that,  where  the  petitioner  asks 
the  court  to  compel  the  general  course  of 
conduct  of  officers,  and  the  case  requires  a 
general  supervision  of  official  conduct,  the 
writ  will  not  lie.  That  question  Is  not  nec- 
essarily involved  in  this  case. 

The  relator  has  brought  to  the  knowledge 


Digitized  by  LjOOQ  l€ 


292 


122  NORTHWBSTEBN  BBPOBTER. 


(Ulcb. 


of  the  respondent  a  particular  Infraction  of 
the  law  by  a  particular  Individual.  If  It  Is 
the  officer's  duty  then  to  Investigate,  and  If, 
having  found  that,  In  bis  opinion,  the  crime 
has  been  committed,  It  then  becomes  his  duty 
to  prosecute,  the  petition  presents  a  case  for 
the  Issuance  of  an  order  to  show  cause. 
This,  I  submit,  is  the  usual  proceeding  where 
an  ofllcer,  through  willfulness  or  an  honest 
belief  as  to  his  duty,  neglects  entirely  to  en- 
force the  law.  Be  is  first  called  upon  to 
enforce  the  law  in  a  specific  case ;  he  re- 
fuses, and  the  court  is  then  Invoked  to  com- 
pel action.  Having  been  informed  as  to  his 
duty  in  a  specific  case,  it  is  to  be  presumed 
that  he  wUl  inforce  it  as  to  all.  This  is  the 
course  pursued  ever  since  the  writ  of  man- 
damus was  first  Issued,  except  as  in  some  of 
the  cases  above  cited,  and  in  others  where 
a  general  refusal  to  enforce  the  law  at  all 
has  been  held  sufficient.  Courts  have  then 
set  the  officer  in  motion  without  determining 
the  methods  he  should  adopt  in  the  perform- 
ance of  his  duty. 

I  think  the  order  of  the  court  below  should 
be  reversed,  Lnd  the  case  remanded  with  the 
direction  to  grant  the  usual  order  to  show 
cause. 

The  importance  of  this  case  is  my  sole  jus- 
.tiflcation  for  so  extended  an  opinion  and  so 
many  quotations  from  the  authorities. 

This  case  was  originally  submitted  on 
briefs.  The  above  opinion,  covering  the 
points  raised  by  such  briefs,  was  written 
shortly  thereafter,  and  copies  served  upon 
my  associates  who  sat  in  the  case.  So  great 
was  the  importance  of  the.  case  that  it  was 
deemed  advisable  to  order  an  oral  argu- 
ment before  the  full  bench.  Additional  briefs 
have  been  filed  by  counsel  for  the  respondent 
and  a  full  oral  argument  had. 

Some  purely  technical  objections,  which 
would  be  proper  on  demurrer,  are  now  raised 
for  the  first  time  against  the  petition.  These 
objections  may  be  summed  up  under  two 
heads:  (1)  That  there  Is  no  allegation  in 
the  petition  that  the  respondent  Issued  an 
order  or  Instruction  permitting  saloons  to  be 
kept  open  on  Sunday.  (2)  That  the  prayer 
of  the  petition  asks  only  that  the  respondent 
be  directed  to  close  the  saloon  kept  by  Mr. 
Snook  and  arrest  him  without  warrant,  as 
the  statute  provides.  These  objections  -were 
not  raised  in  the  court  below,  or  in  the  orig- 
inal briefs  of  counsel.  A  demurrer  to  the 
petition  on  these  grounds  might  very  proper- 
ly have  been  sustained  on  account  of  the 
ind^nite  allegations.  Respondent,  however, 
saw  fit  through  his  counsel  to  base  his  de- 
fense upon  the  grounds  discussed  in  the 
above  opinion.  It  is  now  too  late  to  raise 
these  technical  objections.  It  has  been  ma- 
ny times  decided  that  in  suits  at  law,  brought 
to  this  court  upon  writs  of  error,  points  not 
raised  below  will  not  be  considered  in  this 
court;  neither  will  objections  t>e  considered 
that  are  not  raised  in  the  original  briefs. 
This  is  a  proceeding  on  the  law  side  of  the 


court,  and  the  same  rale  of  pleading  ought 
to  prevail.  Especially  should  technical 'ob- 
jections be  readily  cast  aside  In  a  matter  of 
such  Importance,  where  the  Interests  of  the 
public  are  concerned,  unless  they  are  season- 
ably made  and  the  pleader  given  an  oppor- 
tunity to  promptly  amend  or  commence  a 
new  proceeding.  The  petition  is,  in  my 
Judgment,  sufilcient  without  demurrer  to 
cover  the  question  raised.  •As  to  the  Sunday 
order,  the  petition  sets  forth: 

'Tour  petUIoner  further  shows  that,  not- 
withstanding said  state  law  and  said  city 
ordinance,  said  Frederick  W.  Smith,  police 
commissioner  aforesaid,  absolutely  and  in 
violation  of  law,  knowingly,  willfully,  wan- 
tonly, maliciously,  and  intentionally,  and  in 
face  of  the  statute  aforesaid,  has  evolved, 
adopted,  promulgated,  and  by  himself  and 
ail  bis  subordinates,  several  hundred  in  num- 
ber, have  supplanted  said  ordinance  and  stat- 
ute by  a  commissioner-made  law  which  per- 
mits the  said  saloons  in  the  said  city  of  De- 
troit to  remain  open  and  transact  business  on 
all  first  days  of  the  week,  commonly  called 
Sunday,  from  twelve  o'clock  noon  on  said 
days  until  eight  o'clock  in  the  afternoon  on 
said  days." 

The  prayer  of  the  petition  is  that  "said 
Smith  vacate  his  said  ruling  and  order  per- 
mitting the  saloons  in  the  city  of  Detroit  to 
be  open  and  transact  business  from  twelve 
o'clock  noon  on  Sundays  until  eight  o'clock 
in  the  afternoon  of  said  days." 

Can  any  other  reasonable  conclusion  b« 
drawn  from  this  language  than  that  the  re- 
spondent has  made  such  an  order,  and  that 
it  is  being  carried  out?  It  is  true  the  plead- 
ing Is  crude,  inartificial,  and  not  creditable 
to  the  one  who  drew  it  I  think,  however, 
that  it  is  sufficient  in  the  absence  of  a  de- 
murrer. 

It  is  true  that  the  pleader  says  that  he  can 
obtain  no  adequate  remedy  by  instituting 
proceedings  in  the  courts  against  Mr.  Snoolc 
because  of  the  crowded  condition  of  the 
court's  dockets,  and  asks  the  application  of 
the  other  remedy  by  arrest  without  warrant, 
as  provided  in  the  liquor  statute.  The  stat- 
ute, however,  provides  another  remedy  and 
furnishes  to  the  respondent  another  method 
of  enforcing  the  law,  which  It  is  equally  his 
duty  to  adopt.  By  the  statute  above  quoted 
it  is  his  duty  to  make  complaint  before  the 
proper  magistrate.  The  facts  set  up  In  the 
petition  in  this  respect  and  the  prayer  are 
sufficient  to  Justify  the  court  in  requiring 
him  to  pursue  that  method,  and  the  court. 
In  my  Judgment,  can  and  ought  to  aflFord  that 
remedy,  although  the  petitioner's  counsel 
should  think  the  other  to  be  the  sole  remedy. 
A  mistake  or  Ignorance  of  the  law  on  the 
part  of  counsel  should  not  In  this  proceeding 
be  permitted  to  defeat  Justice.  Perhaps,  how- 
ever, the  counsel  for  petitioner,  as  claimed 
In  the  brief  filed  by  him  since  the  oral  argu- 
ment, understood  when  he  drew  the  petition 
I  that  the  case  of  Robinson  t.  Miner,  68  Mich. 


Digitized  by  LjOOQ  l€ 


UldL) 


QOWAN  T.  SMITH. 


293 


648,  87  N.  W.  21,  was  overruled  by  Bnr- 
rougbs  T.  Eastman,  101  Mlcb.  419,  69  N.  W. 
817,  24  li.  R.  A.  859,  45  Am.  St.  Rep.  419. 
There  appears  to  be  good  reason  for  such 
belief.  It  is,  however,  unnecessary  now  to 
determine  whether  the  latter  has  overruled 
the  former  case. 

We  are  not  called  upon  now  to  determine 
whether  a  general  allegation  of  neglect  of 
duty  on  the  part  of  the  officer,  without  speci- 
fying any  particular  Instance  and  asking  re- 
lief therein.  Is  sufficient  to  Justify  the  in- 
terposition of  the  court  and  the  issuance  of 
the  writ.  One  specific  case  is  set  forth,  that 
of  Mr.  Snook,  and  the  court  requested  to  act 
In  that  particular  case.  Counsel  for  re- 
qtondent  dte  In  support  of  their  contention 
State  v.  Brewer,  39  Wash.  66,  80  Pac.  1001, 
lOe  Am.  St.  Rep.  858 ;  People  v.  Dunne,  219 
ni.  346,  76  N.  B.  570;  Alger  v.  Seaver,  138 
Mass.  331;  People  v.  Llstman,  84  App.  Dlv. 
633,  82  N.  T.  Supp.  784. 

In  State  v.  Brewer  a  petttloh  was  filed  for 
a  writ  of  mandamus  to  compel  the  sheriff 
of  a  county  and  marshal  of  a  city  to  enforce 
all  the  criminal  laws  of  the  state  requiring 
saloons,  cigar  stands,  ftnd  all  places  of  busi- 
ness to  be  closed  on  Sundays;  all  keepers 
of  houses  of  prostitution;  all  who  gamble  or 
run  gambling  houses;  and  to  complain  of 
and  prosecute  persons  who  commit  offenses 
against  the  criminal  laws  of  the  state.  No 
specific  act  was  alleged.  It  was  held  that 
the  remedy  sought  was  too  general  to  be  at 
aU  practical.  That  decision  does  not  touch 
the  specific  allegations  of  refusal  to  enforce 
the  law  In  this  case. 

Alger  V.  Seaver  has  no  application  here. 
That  was  a  proceeding  to  compel  the  mar- 
shal to  station  a  policeman  at  a  certain  place 
in  accordance  with  an  order  passed  by  the 
board  of  aldermen.  The  mayor  declined  to 
recognize  the  order  as  valid,  and,  the  marshal 
being  under  his  control,  refused  to  Instruct 
him  to  carry  out  the  order.  Various  reasons 
are  given  for  lefusal  to  grant  the  order, 
among  them  being  the  serious  one  that  the 
petition  sought  to  deal  with  a  subordinate 
officer.  This  case  deals  with  the  chief  offi- 
cer. It  furthermore  appeared  in  that  case 
that  the  subordinate  officer  was  ready  to 
comply  with  the  direction  of  the  board  upon 
the  assent  of  the  mayor,  under  whose  super- 
vision he  was. 

The  petition  In  People  v.  Dunne  is  nearly 
as  generaL  It  cites  no  specific  Instance  of 
violation,  or  of  a  demand  for  the  perform- 
ance of  his  duty  In  a  particular  case. 

In  People  v.  Listman,  the  petition  asked 
that  the  commissioner  of  public  safety  be 
required  to  enforce  the  law  against  Sunday 
concerts.  It  is  significant  that  the  commis- 
sioner was  ready  to  and  did  perform  his  du- 
ty. He  made  complaints  before  the  proper 
magistrate,  but  the  magistrate  refused  to 
Issue  the  warrants.  The  purpose  there  was 
to  have  the  commissioner  cause  the  arrest 
of  all  persons  violating  the  law,  without  a 


warrant,  which  it  was  held  he  did  not  have 
the  power  to  do.  The  court  in  no  uncertain 
language  held  that  it  was  the  plain  duty  of 
the  commissioner  to  see  that  the  laws  of  the 
state  were  enforced.  The  commissioner  had 
done  all  that  he  could  do,  and  all  that  the 
law  required.  The  responsibility  then  rested 
upon  the  court. 

I  submit  that  those  cases  do  not  control 
this.  This  is  not  an  attempt  to  enforce  by 
mandamus  the  general  criminal  laws  of  the 
state  as  to  common-law  crimes,  such  as  hom- 
icide, burglary,  larceny,  rape,  forgery,  ar- 
son, ,etc.  Prosecutions  In  these  cases  are 
governed  in  this  state  by  the  commou-law 
procedure,  which  has  proved  amply  suffi- 
cient for  the  purpose.  When,  however,  the 
state,  through  Its  lawmaking  body,  has  made 
certain  acts  and  conduct,  legal  at  the  com- 
mon law.  Illegal,  it  has  provided  a  means  for 
the  enforcement  of  such  laws,  and  Imposed 
the  duty  of  enforcement  upon  specified  offi- 
cers named  in  the  statute.  Such  statutes 
must  necessarily  provide  means  for  enfor- 
cing them,  otherwise  they  would  be  of  no 
avail.  These  officers  specifically  charged 
with  that  duty  have  been  generally  compel- 
led by  the  courts  of  the  United  States  and 
of  the  states  through  the  writ  of  mandamus 
to  enforce  the  law  in  accordance  with  the 
statute,  whenever  they  willfully  or  through 
misconception  of  their  duty  have  refused  or 
neglected  to  do  so. 

I  have  above  mentioned  some  oft  the  offi- 
cers upon  whom  the  duty  is  imposed,  and  a 
few  of  the  cases  where  they  have  been  com- 
pelled to  act  I  know  of  no  reason  why  a 
police  officer,  charged  with  the  duty  to  en- 
force a  specific  laiw  in  a  specified  manner, 
should  be  exempt  from  the  wholesome  super- 
vision and  direction  of  the  court  If  the 
writ  should  issue  against  the  county  treasur- 
er, as  in  Attorney  General  ▼.  Huebner,  supra, 
to  compel  him  to  act  in  1,500  or  2,000  saloon 
cases  involving  the  giving  of  bonds,  wliy,  for 
the  same  reason,  should  not  this  respondent 
be  compelled  to  Investigate  honestly  and 
make  complaint  against  these  sa£ae  saloon 
keepers  for  a  violation  of  the  law?  If  the 
writ  should  issue,  as  in  Sadler  v.  Sheahau, 
92  Mich.  630,  52  N.  W.  1030,  to  compel  courts 
to  accept  complaints,  why,  for  the  same  rea- 
son, should  it  not  compel  the  officers  to  make 
them?  The  duty  In  the  one  case  is  no  more 
specific  than  in  the  other. 

Something  Is  said  about  a  discretion  lodg- 
ed in  the  respondent  The  only  discretion 
lodged  in  him  is  to  refuse  to  make  com- 
plaints when,  after  proper  and  honest  inves- 
tigation, he  has  become  satisfied  that  no 
offense  has  been  committed.  He  has  no  dis- 
cretion to  refuse  to  enforce  the  law.  To 
hold  that  he  has,  would  be  subversive  of 
government  by  law,  and  place  in  the  hands 
of  officials  the  ttower  to  set  any  law  of  the 
state  aside,  as,  according  to  the  allegations  of 
the  petition,  the  respondent  lias  done  in  this 


Digitized  by 


L-oogle 


291 


122  NORTHWESTERN  REPORTER. 


(Mich. 


case.  No  case  cited  In  bebalf  of  respondent 
intimates  that  there  is  any  discretion  In  tills 
particular  lodged  In  the  officer. 

It  is  conceded  by  counsel  for  respondent, 
and  stated  in  some  of  the  authorities  they 
cite,  that  "Cases  may  arise  where  the  neg- 
lect of  the  municipal  officer  Is  so  flagrant, 
where  the  wrong  is  of  so  great  a  character, 
and  where  the  public  Interests  Involved  are 
so  important,  that  the  courts  will  not  hesi- 
tate to  resort  to  this  remedy"  (Mandamus). 
The  effect  of  the  nonenforcement  of  this  and 
similar  laws,  and  the  unrestricted  saloon,  is 
shown  in  Kurtz  v.  People,  33  Mich.  278,  Klein 
V.  Pollard,  149  Mich.  200,  112  N.  W.  7i7,  10 
L.  R.  A.  (N.  S.)  1008,  119  Am.  St.  Rep.  670, 
and  In  Crowley  v.  Chrlstensen,  137  U.  S.  80, 
11  Sup.  Ct  13,  34  L.  Ed.  620.  If  there  is 
a  more  flagrant  neglect  of  duty  on  the  part 
of  a  municipal  ofllcer  than  that  alleged  in 
the  petition;  if  there  is  a  case  where  the 
public  Interests  Involved  are  more  import- 
ant, or  where  the  wrong  perpetrated  is  of 
greater  character — I  have  failed  to  note  It 
in  any  of  the  many  decisions  which  X  have 
examined.  I  am  unable  to  conceive  a  case 
of  greater  Importance  to  the  morals  and  wel- 
fare of  the  people  in  protecting  young  men 
and  young  women  as  well  from  evil  Influ- 
ences and  in  preventing  crime. 

In  People  v.  Llstman,  supra,  relied  upon 
by  respondent,  it  Is  said:  "When  a  plain 
and  Imperative  duty  is  specifically  imposed 
upon  Bucb  officers,  so  that  In  its  performance 
they  act*  merely  in  a  ministerial  capacity, 
without  being  called  upon  to  exercise  their 
own  judgment  as  to  whether  the  duty  shall 
or  shall  not  be  performed,  the  writ  of  man- 
damus may  be  used  to  set  them  in  motion." 

For  reasons  which  I  have  stated  In  Wil- 
son V.  Cleveland,  122  N.  W.  284,  handed  down 
herewith.  People  v.  Whipple,  41  Mich.  548, 
49  N.  W.  922,  and  similar  cases  have  no  ap- 
plication here.  That  case  was  an  attempted 
Interference  with  acts  of  members  of  a  legis- 
lative body. 

It  is  stated  as  an  objection  to  Issuing  the 
writ  In  this  case  that  It  would  Impose  a 
heavy  burden  upon  the  courts  by  the  Insti- 
tution of  many  suits.  This  argument,  if  it 
may  properly  be  called  one,  is  based  upon 
the  false  theory  that  when  the  respondent 
performs  his  duty,  makes  complaints  and  ar- 
rests, the  carnival  of  violation  of  law  will 
continue.  This  is  not  in  accord  with  human 
experience.  The  presumption  Is  that  when 
the  respondent  performs  his  duty  in  the  case 
of  Snook,  and  informs  others  In  the  like 
business  that  they  will  receive  like  treat- 
ment, the  open  violations  of  law  will  sub- 
stantially cease. 

When  public  officers  refuse  to  perform 
their  statutory  duties,  and  not  only  sanction 
but  openly  permit  the  violations  of  law,  to 
the  detriment  of  public  morals,  public  decen- 
cy, and  gobd  government,  and  to  the  special 
Injury  of  those  living  in  the  vicinity  of  the 
open  violation,  has  such  injured  citizen  no 


remedy  except  a  civil  suit  against  the  viola- 
tor of  the  law,  or  a  prosecution  of  the  officer, 
or  a  proceeding  to  remove  him  from  offlceT 
There  are  several  hundred  policemen  in  the 
city  of  Detroit  under  the  control  of  the  re- 
spondent. The  petitioner  and  other  good 
citizens  pay  taxes  to  support  this  body  of 
men.  What  for?  Why  should  the  private 
citizen  l>e  required  to  leave  his  business  and 
prosecute  at  his  own  expense  when  he  has 
been  taxed  to  pay  officers  to  perform  that 
duty?  To  deny  the  citizen  the  writ  of  man- 
damus under  such  circumstances  vt^ould,  in 
my  opinion,  be  a  reproach  to  tbe  law. 

BROOKE,  J.  I  am  unable  to  agree  with 
the  conclusions  reached  by  my  Brother 
GRANT  In  this  matter.  The  petition  for 
mandamus  sets  out  substantially  that:  (1) 
One  Snook,  a  saloon  keeper  on  John  R.  street, 
habitually  violates  the  law  by  keeping  bis 
saloon  open  after  11  o'clock  at  night  and  up- 
on Sundays.  (2)  That  tbe  relator,  a  physi- 
cian who  conducts  a  private  sanitarium  Id 
the  neighborhood,  has  been  specially  dam- 
aged, through  the  disturbance  of  his  family 
and  business,  by  the  noise  and  disturbance 
incident  to  Snook's  violations  of  the  law.  (3) 
That  the  relator  notified  the  police  commis- 
sioner twice  by  mall  of  such  violation  of  the 
law ;  that  no  reply  was  received  to  the  letters, 
and  that  the  violation  continued.  That  the  po- 
lice commissioner  has  adopted  and  promulgat- 
ed "a  commissioner-made  law"  which  permits 
saloons  in  tbe  city  of  Detroit  to  remain  open 
and  do  business  on  Sundays  between  noon 
and  8  in  the  evening.  (4)  That  many  com- 
plaints for  the  violation  of  law  against  open- 
ing saloons  after  11  o'clock  at  night  and  upon 
Sundays  have  been  filed  in  the  Detroit  police 
court  against  various  saloon  keepers,  and 
have  been  pending  for  some  months,  and  that, 
because  of  the  volume  of  business  of  said 
court  and  other  suits  therein  taking  prec^ 
dence  over  those  for  violations  of  the  saloon 
law.  It  would  be  almost  impossible  for  the 
petitioner  to  get  relief  by  the  ordinary  pro- 
cess l>efore  the  destruction  of  his  business. 
The  prayer  was  for  a  peremptory  writ  of 
mandamus  requirlfig:  (a)  That  the  police 
commissioner  obey  and  enforce  the  closing 
law,  as  is  his  duty,  (b)  That  the  commission- 
er vacate  his  rule  and  order  permitting  sa- 
loons to  be  open  and  do  business  on  Sundays 
between  n09n  and  8  in  the  evening,  (c)  That 
the  commissioner  close  Snook's  saloon;  or 
cause  it  to  be  closed,  as  the  law  requires. 

Attached  to  the  petition  were  the  affidavits 
of  the  relator,  of  Mr,  Watt,  Mr.  Flower,  and 
Mr.  Owens,  relator's  counsel.  Relator's  affi- 
davit reiterates  In  effect  the  statements  con- 
tained in  the  petition.  The  affidavits  of  Mr. 
Watt  and  Mr.  Flower  show  that  on  Septem- 
ber 20th  they  found  several  saloons  open, 
and  that  they  asked  certain  policemen  to 
close  them;  that  one  of  them,  in  company 
with  Mr.  Owens,  visited  the  police  commis- 
sioner, and  called  his  attention  to  tbe  fact 


Digitized  by  VjOOQ  l€ 


Mich.) 


GOWAN  V.  SMITH. 


295 


of  saloons  being  open  and  doing  business  In 
riolatlou  of  law;  that  Mr.  Owens  called 
the  commissioner's  attention  to  section  6393 
of  the  Compiled  Laws,  and  demanded  of  the 
commissioner  that  he  close  the  saloons  in  ac- 
cordance therewith.  Mr.  Owens  further  de- 
poses that  be  asked  Mr.  Yerkes,  the  prosecu- 
ting attorney,  for  the  use  of  his  name  in  the 
proceedings,  which  was  refused  by  Mr.  Yerk- 
es, because  a  case  embracing  all  the  facts 
set  up  In  the  petition  was  now  pending  In 
the  Supreme  Court,  and  because  the  facts 
set  up  in  the  petition  only  Involved  the  Inter- 
est of  a  private  individual,  and  was  matter 
for  a  civil  action  only. 

It  is  apparent  that  the  plalntifT  in  certio- 
rari proceeds  upon  the  theory  that  the  police 
commissioner,  through  his  subordinates,  has 
the  right  to  summarily  close  any  saloon 
found  open  by  the  officer  at  times  forbidden 
by  law ;  relying  for  this  authority  upon  sec- 
tion 5%^,  Comp.  Laws  1897,  which  makes 
it  the  duty  of  police  officers  to  "close  all  sa- 
loons, houses,  or  places  which  shall  be  found 
open  In  violation  of  the  provisions  of  this 
section,  and  to  report  forthwith  all  such  vio- 
lations to  the  prosecuting  attorney,  whose 
duty  It  shall  be  to  Immediately  prosecute  for 
such  violations.  •  •  »  Any  person  found 
in  the  act  of  violating  any  of  the  provisions 
of  this  section  shall  be  deemed  guUty  of  a 
breach  of  the  peace  and  punished  according- 
ly, and  the  arrest  tj^erefor  may  be  without 
process.  And  this  punishment  shall  be  taken 
to  be  in  excess  of  all  other  manner  of  pun- 
ishment in  this  act  providing  for  violations  of 
this  section.  All  officers  authorized  to  make 
arrests  for  breach  of  the  peace  shall  have 
like  power  to  make  arrests  under  the  pro- 
visions of  this  section  as  In  other  cases  of  a 
breach  of  the  peace." 

This  section  received  Judicial  construction 
in  the  case  of  Robinson  v.  Miner,  68  Mich. 
549,  37  N.  W.  21,  wherein  the  court  said: 
"^his  statute  is  practically,  If  carried  out,  a 
general  warrant  itself,  directing  all  officers 
to  visit  houses  and  business  places  without 
other  authority,  and  make  searches  and  ar- 
rests, and  close  up  places  of  business  on 
their  own  well  or  111  founded  notion  that  the 
law  has  been  violated." 

See,  also.  Burroughs  v.  Eastman,  101  Mich. 
419,  59  N.  W.  817,  24  L.  R.  A.  859,  45  Am. 
St.  Rep.  419;  Klein  v.  Pollard,  149  Mich. 
200,  112  N.  W.  717,  10  L.  R.  A.  (N.  S.)  1008, 
119  Am.  St.  Rep.  670. 

In  commenting  on  section  5395,  supra.  In  the 
case  of  Burroughs  v.  Eastman,  this  court  said: 
"These  provisions  are  peculiar  and  Incon- 
gruous. It  seems  to  have  been  an  attempt 
on  the  part  of  the  Legislature  to  confer  the 
power  of  arrest  by  a  process  of  first  declaring 
that  to  be  a  breach  of  the  peace  which  is  not 
such  in  fact,  and.  by  further  providing  that 
a  party  might  be  punished  for  such  breach  of 
the  peace  in  addition  to  and  beyond  the  pun- 
ishment provided  by  the  same  statute.  The 
conclusion  that  tbese  provisions  could  not 


be  maintained,  in  view  of  the  constitutional 
provision  that  no  persons  shall  twice  be  put 
In  Jeopardy  for  the  same  offense,  was  un- 
doubtedly correct." 

It  is  quite  clear,  therefore,  that  the  only 
action  which  the  plaintiff  In  certiorari  can  de- 
mand from  the  police  commissioner  is  that  he 
proceed  to  collect  evidence  against  the  offend- 
ing saloon  keeper,  and  if  such  evidence  is 
found  by  him  to  be  sufficiently  conclusive 
to  warrant  the  making  of  a  complaint,  then 
to  make  such  complaint,  and  to  proceed  in 
the  ordinary  orderly  prosecution  thereof. 
This,  however,  is  not  what  plaintiff  in  cer- 
tiorari desires.  Indeed,  by  the  very  terms 
of  his  petition  he  avers  that  by  such  a  course 
"It  would  be  almost  Impossible  for  this  peti- 
tioner to  get  relief,"  and  the  reason  that 
such  a  course  would  be  barren  of  results  to 
the  petitioner  Is  that  many  such  complaints 
are  now  awaiting  trial  In  the  recorder's 
court,  and  because  of  the  volume  of  business 
In  that  court,  and  other  suits  therein  taking 
precedence  over  those  of  violations  of  the 
saloon  law.  The  averments  of  the  petition 
clearly  indicate  that  the  police  commissioner 
of  the  city  of  Detroit  does  not  refuse  to  en- 
force the  law  in  the  only  manner  in  which 
he  can'  legally  enforce  it,  1.  e.,  by  complaint 
and  prosecution,  but,  on  the  contrary,  that 
he  has  made  so  many  complaints  for  liquor 
violations  that  the  same  have 'been  pending 
In  the  recorder's  court  without  trial. 

While  it  is  true  that  a  writ  of  mandamus 
will  issue  commanding  a  public  official  to 
perform  a  specific  ministerial  act,  it  does  not 
lie  against  officials  to  compel  the  enforce- 
ment of  the  criminal  law  by  obtaining  com- 
plaint for  Its  violation  and  by  arrest.  This 
is  a  discretionary  executive  power,  and 
should  not  be  subjected  to  the  control  of 
the  courts  except  in  cases  of  gross  and  mani- 
fest abuse.  Without  going  over  In  detail  the 
cases  cited  by  Mr.  Justice  GRANT  In  sup- 
port of  bis  conclusions,  the  assertion  is  ven- 
tured that,  upon  a  careful  examination  of 
the  facts  upon  which  the  action  was  predi- 
cated in  each  case,  they  will  be  found  dis- 
tinguishable from  the  case  at  bar.  Upon 
the  other  hand,  there  Is  abuqdant  authority 
as  well  as  reason  for  the  contrary  conclu- 
sion. See  People  v.  Listman,  84  App.  Div. 
633,  82  N.  Y.  Supp.  784,  where  that  court 
said:  "But,  after  all,  the  writ  of  mandamus 
is  an  extraordinary  remedy,  and  whether  it 
shall  or  shall  not  be  granted  In  a  specific 
case,  rests  largely  In  the  sound  discretion  of 
the  court.  •  •  •  It  might  well  be  that 
cases  would  arise  where  the  neglect  of  the 
municipal  ofllcer  is  so  flagrant,  where  the 
wrong  is  of  so  great  a  character,  and  where 
the  public  Interests  Involved  are  so  im- 
portant, that  the  court  will  not  hesitate  to 
resort  to  this  remedy.  But  It  should  be 
used  with  caution.  Ordiufirlly  It  is  far  bet- 
ter that  the  usual  course  be  pursued.  The 
interference  of  the  Supreme  Court  with  the 
details  of  municipal  administration  la  not 


Digitized  by  LjOOQ  l€ 


296 


122  NORTHWESTERN  REPORTER. 


(Mich. 


to  be  encoaraged.  These  details  are  In- 
trusted by  the  people  to  officers  chosen  di- 
rectly or  Indirectly  by  themselves.  Those  of- 
ficers are  criminally  responsible  for  a  will- 
ful neglect  of  their  duties,  and  upon  them 
the  responsibility  for  the  government  of  our 
cities  should  usually  be  allowed  to  rest 
The  Supreme  Court  Is  not  so  organized  as  to 
enable  It  conveniently  to  assume  a  general 
supervisory  power  over  their  acts;  and.  In- 
deed, such  an  assumption  by  It  would  be 
contrary  to  the  whole  spirit  and  Intent  of 
our  government.  And  yet  If  the  application 
of  the  relator  is  granted,  it  Is  difficult  to  see 
where  the  line  Is  to  be  drawn.  Every  per- 
son aggrieved  by  the  breach  of  any  law  or 
ordinance  will  attempt  to  secure  its  enforce- 
ment by  mandamus,  rather  than  by  the 
methods  i)olnted  out  by  the  Code  of  Crim- 
inal Procedure.  •  •  •  There  may  be 
times  when  the  power  of  the  court  should  be 
used.  *  *  •  But  it  should  be  reserved 
for  extreme  cases." 

Again,  In  People  v.  Dunne,  219  111.  S46,  76 
N.  W.  570.  The  relief  prayed  was  a  man- 
damus commanding  the  mayor  to  use  the 
power  given  him  for  the  enforcement  of  this 
law  (the  liquor  law),  and  to  secure  the  prose- 
cution of  all  persons  violating  It,  and  the 
revocation  of  the  license  of  saloon  keepers 
violating  the  law.  That  court  said:  "The 
remedy  by  mandamus  is  one  which  Is  al- 
lowed to  compel  the  performance  of  some 
duty  owing  to  an  individual  or  the  public. 
The  duty  must  be  specific  in  its  nature,  and 
of  such  character  that  the  court  can  pre- 
scribe a  definite  act  or  series  of  acts  which 
will  constitute  a  performunce  of  the  duty, 
so  that  the  respondent  may  know  what  be 
is  obliged  to  do  and  may  do  the  act  required, 
and  the  court  may  know  that  the  act  has 
been  performed  and  may  enforce  its  per- 
formance. It  is  not  necessary,  In  all  cases, 
that  the  performance  of  the  duty  should  con- 
sist of  a  single  act.  It  may  be  a  succession 
of  acts,  If  the  duty  is  specific  and  the  acts 
are  of  such  a  nature  that  the  court  can  su- 
pervise the  performance  of  the  duty  and  the 
execution  of  the  mandate.  For  example,  the 
courts  may  require  a  railroad  company  to 
relay  a  portion  of  its  tracks  which  have  been 
taken  up,  and  operate  it,  to  operate  its 
railway  as  a  continuous  line,  to  deliver 
freight  to  a  certain  elevator,  to  run  a  dally 
passenger  train  for  the  accommodation  of 
passengers  over  its  road  in  place  of  a  mixed 
stock  and  passenger  train,  or  to  stop  all  of 
its  passenger  trains'  at  a  certain  station; 
but  the  writ  has  never  been,  made  use  of, 
and  does  not  lie  In  this  state,  at  least,  for 
the  purpose  of  enforcing  the  performance  of 
duties  generally.  It  will  not  lie  where  the 
court  would  have  to  control  and  regulate  a 
general  course  of  official  conduct  and. en- 
force the  performance  of  official  duties  gen- 
erally. In  such  a  case  the  court  conid  not 
prescribe  the  particular  acts  to  be  performed 
and  enforce  their  performance.    It  is  plain 


that  in  this  case^  where  the  conrt  to  asked 
to  require  the  defendant  to  adopt  a  course 
of  official  action,  although  it  Is  a  course  re- 
quired by  the  statute,  and  imposed  upon  him 
by  the  law,  it  would  be  necessary  for  the 
court  to  supervise,  generally,  his  official  con- 
duct, and  to  determine  In  very  numerous  in- 
stances whether  he  had  persistently,  and  to 
the  extent  of  his  power  and  the  force  in  his 
hands,  carried  out  the  mandate  of  the  court 
and  performed  bis  official  duty.  It  is  mani- 
fest that  where  there  are  about  7,000  sa- 
loons in  a  city  which  are  kept  open  on  the 
Sabbath  day  in  violation  of  law,  as  is  al- 
leged in  this  case,  the  court  would  not  only 
have  to  enforce  a  general  course  of  official 
conduct  on  the  part  of  the  mayor,  but  mnst 
also  determine  in  numerous  Instances  wheth- 
er ground  existed  for  the  revocation  of  li- 
cense, whether  there  bad.  been  violations  of 
law,*and  to  what  extent  he  bad  endeavored 
to  perform  his  duty  with  the  force  and  fa- 
cilities at  his  command  for  doing  it  The 
writ  will  not  lie  .for  any  such  purpose.  For 
the  conrt  to  assume  the  management  of  mu- 
nicipal affairs  in  the  city  of  Cbicago  would 
be  to  depart  from  its  proper  sphere  and  as- 
sume governmental  functions,  which  are  out- 
side of  the  Jurisdiction  of  the  court  and  not 
within  the  remedy  by  writ  of  mandamus." 

In  People  v.  Busse,  238  111.  593,  87  N.  E3. 
840,  the  prayer  of  the  petition  is  that  the 
mayor  be  commanded  to  use  his  authority 
to  enforce  this  statute  (the  liquor  statute) 
against  Kenna  by  compelling  him  to  keep 
his  saloon  closed  on  Sunday;  that,  if  Kenna 
refuse  to  obey  the  law,  he  secure  his  prose- 
cution therefor  and  revoke  his  license.  The 
writ  was  denied,  and  the  court  said :  "Coun- 
sel for  appellant  confuse  the  functions  of 
the  executive  and  Judicial  departments  of 
government  If  their  contention  was  to  pre- 
vail, the  mandate  of  the  court  would  be  sub- 
stituted for  the  statute  which  denounces 
misfeasance  and  malfeasance  in  office.  *  •  * 
It  is  not  here  sought  to  have  the  mayor  com- 
manded to  do  a  specific  thing  in  reference  to 
a  violation  of  the  law  which  has  already 
taken  place,  but  the  purpose  is  to  have  him 
commanded  to  enforce  the  statute  above  set 
out,  which  he  might  do  in  any  one  or  all 
of  several  ways  against  Kenna,  in  reference 
to  his  two  dramshops,  so  far  as  future  vio- 
lations of  that  statute  are  concerned." 

gee,  also.  State  v.  Brewer,  89  Wash.  6S, 
80  Pac.  1001,  109  Am.  St  Rep.  858;  Alger  v. 
Seaver,  138  Mass.  831. 

I  am  clearly  of  the  opinion  that  In  the 
case  at  bar  the  writ  should  be  denied.  While 
It  is  true  that  the  relator  claims  to  be  spe- 
cially damaged  by  the  particular  infraction 
of  the  law  by  Snook,  it  is  equally  true  that 
there  are  in  the  dty  of  Detroit  more  than 
1,500  saloons,  many  of  which  unquestionably 
would  afl'ord  a  private  relator,  living  In 
the  vicinity,  reasons  quite  as  strong  as  are 
the  relator's  in  the  case  at  bar  for  the  re- 
lief demanded.    Tliis  court  ia  not  constltut- 


Digitized  by  VjOOQ  IC 


Mlcb^ 


PEOPLE  ▼.  WILSON. 


297 


ed  to  properly  take  cognizance  of  anch  is- 
fractions  of  the  law  by  the  nse  of  the  ex- 
traordinary writ  of  mandamus,  nor  would 
It  be  effectlTe  If  used.  Should  this  court 
Issue  the  writ.  It  could  only  command  the 
police  commissioner  to  proceed  to  enforce 
the  law  as  to  Snook's  saloon.  In  which  event 
the  commissioner  would  gather  evidence  of 
Snook's  Infraction  of  the  law,  make  com- 
plaint before  the  proper  officer,  and  proceed 
to  prosecute  through  the  prosecuting  attor- 
ney. In  obejrlng  the  mandate  of  this  court 
In  this  respect,  the  commissioner  is  bound  to 
dSe  the  discretion  with  which  he  is  clothed. 
He  is  charged  not  alone  with  the  execution 
of  the  liquor  laws  of  the  state  within  the 
dty  of  Detroit,  but  he  is  likewise  charged 
with  the  suppression  of  all  crime  and  the 
conservation  of  the  peace.  To  enable  him 
to  perform  the  duties  Imposed  upon  him  by 
law,  be  is  supplied  with  certain  limited 
means.  It  is  entirely  obvious  that  he  must 
exercise  a  sound  discretion  as  to  how  those 
means  shall  be  applied  for  the  good  of  the 
community.  He  cannot  withdraw  the  en- 
tire force  at  his  command  from  their  ordi- 
nary duties  and  detail  them  to  collect  evi- 
dence against  lawbreaking  saloon  keepers, 
lest  other  crimes  should  multiply.  That  a 
certain  portion  of  his  force  was  so  employ- 
ed is  apparent  from  the  averments  of  the 
petition.  The  writ  should  not  issue  unless 
this  court  Is  prepared  to  exercise  a  constant 
or  recurring  supervision  over  the  daily  acts 
of  the  police  commissioner,  and  a  deflolte 
control  of  the  discretion  with  which  he  is 
clothed  by  law.    This  cannot  be  done. 

In  the  case  of  Fitzgerald  v.  Whipple,  41 
Mich.  648,  49  N.  W.  822,  this  coui-t  said :  "A 
mandamus  would  be  entirely  inefficient  in 
reaching  the  mischief  complained  of,  as  no 
court  by  such  means  could  keep  up  a  con- 
tinuous or  repeated  attendance.  Courts  are 
not  created  to  conduct  the  municipal  afTairs 
of  cities,  and  nothing  short  of  any  such  gen- 
eral supervision  would  reach  such  cases  as 
the  present"  This  language  is  peculiarly 
pertinent  when  applied  to  the  facts  at  bar. 

If,  as  averred  In  relator's  petition,  the 
acts  of  Snook  constitute  a  nuisance  to  rela- 
tor, he  has  a  complete  remedy  in  equity,  as 
determined  by  this  court  in  a  very  recent 
case.  See  Detroit  Realty  Co.  v.  Bamett,  120 
N.  W.  804.  It  cannot  be  said  that  the  peti- 
tion makes  out  such  a  case  of  gn^oss  abuse 
of  discretion  on  the  part  of  the  commissioner 
as  would  warrant  Judicial  interference. 

The  writ  was  properly  denied. 

MONTGOMERY,  HOOKER,  and  McAL- 
VAY,  JJ.,  concurred  with  BROOKE,  J. 

BLAIB,  O.  3.    I  concur  in  the  result 

OSTRANDER,  3.  If  the  averments  of  the 
petition  showed  that  relator  was  affected. 


otherwise  than  as  one  of  the  public,  by  the 
alleged  "commissioner-made  law,"  I  should 
agree  that  an  order  to  show  cause  should  be 
issued.  But  he  makes  no  such  showing,  and 
therefore  I  favor  an  affirmance  of  the  order 
of  the  circuit  court 


MOORE. 
DER,  J. 


J.,    concurred    with    OSTRAN- 


PEOPLE  V.  WILSON. 
(Supreme  Court  of  Michigan.    July  15,  1909.) 

1,  ElMBEZZLEUENT    ((    44*)— PBOOT   07    CoSFCS 

Delicti— EviDEWCE. 

On  a  trial  for  embezzlement,  evidence  held 
to  sufSciently  establish  the  corpus  delicti  inde- 
pendent of  the  admissions  of  accused,  justify- 
ing a  conviction. 

[Ed.  Note.— For  other  cases,  see  Embezzle- 
ment, Dec.  Dig.  I  44.*] 

2.  Statutes  (§  80*)— Special  Laws— Cbea- 
tioh  of  cobpobation. 

A  statute  authorizing  the  incorporation  of 
a  fraternal  society  composed  of  grand  and  sub- 
ordinate lodges  is  Dot  in  conflict  with  Const 
1850,  art  IS,  i  1,  prohibiting  the  creation  of 
corporations  by  special  act.    ' 

[Ed.  Note. — For  other  cases,  see  Statutes, 
Cent  Dig.  {{  8&-89;    Dec.  Dig.  i  80.*] 

Error  to  Circuit  Court,  St  Clair  County; 
Watson  Beach,  Judge. 

William  L.  Wilson  was  convicted  of  em- 
bezzlement, and  he  brings  error.    Affirmed. 

Argued  before  MONTGOMERY,  OSTRAN- 
DER,  HOOKER,  MOORE,  and  BROOKE,  JJ. 

Joseph  Walsh,  for  appellant  Alex.  Moore, 
Pros.  Atty.,  for  the  People. 


MONTGOMERY,  J.  The  respondent  was 
convicted  of  the  crime  of  embezzlement  of 
the  funds  of  the  Supreme  Lodge  of  the  United 
Home  Protectors'  Fraternity,  a  corporation 
organized  under  Act  No.  68,  p.  68,  Pub.  Acts 
1893,  being  sections  7607-7617,  Inclosive, 
Comp.  Laws. 

Two  contentions  are  made  by  the  respond- 
ent in  this  court:  The  first  is  that  there  was 
no  proof  of  the  corpus  delicti;  the  second, 
that  the  statute  under  which  the  United 
Home  Protectors'  Fraternity  was  incorpor- 
ated is  unconstitutional  and  void,  and  that 
the  respondent  and  his  associates  were  there- 
fore copartners,  and  that  one  partner  could 
not  be  guilty  of  embezzling  the  funds  be- 
longing to  a  copartnership. 

The  funds  which  respondent  was  charged 
with  embezzling  consisted  of  the  amount  of 
certain  orders  or  warrants  drawn  upon  the 
Commercial  National  Bank  by  the  officers  of 
the  association  in  favor  of  Warner  Cornell, 
Dr.  Frederick  Lohrstorfer,  Guy  Kimball,  A. 
D.  McLaren,  Walter  Shields,  and  A.  J. 
Simms.  There  were  kept  in  the  bank  four 
accounts.  The  Home  Protectors'  Fraternity 
maturity  benefit  fund,  the  Home  Protectors' 


*For  other  eases  (m  lam*  topic  and  icetlon  NUMBER  In  Dec.  *  Am.  Diss.  IWT  to  data,  A  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


298 


122  NORTHWESTERN  REPORTER. 


(Mich. 


general  fand,  the  Inrestment  fund.  United 
Home  Protectors,  and  the  United  Home  Pro- 
tectors' Fraternity.  The  latter  account  was 
commonly  referred  to  as  the  "Secretary's 
Fund  Account"  The  withdrawals  from  the 
investment  fund  account  could  be  made  only 
by  check  signed  by  the  president  and  secre- 
tary, and  countersigned  by  the  treasurer. 
Claims  In  favor  of  each  of  the  parties  above 
named  were  audited,  and  warrants  drawn 
duly  signed  by  the  president  and  secretary 
and  countersigned  by  the  treasurer.  These 
warrants  were  made  payable  to  the  respective 
parties  in  whose  favor  the  accounts  were  au- 
dited, but  the  evidence  showed  that  the  re- 
spondent deposited  the  same  In  the  bank  with 
an  indorsement  as  follows:  "For  deposit, 
to  take  care  of  checks  drawn  on  the  United 
Home  Protectors'  Fraternity.  W.  L.  Wilson, 
Supreme  Secretary."  It  Is  contended  that 
ns  the  record  shows  that  on  the  various 
dates  when  these  orders  were  deposited  there 
was  withdrawn  from  the  secretary's  fund, 
and  placed  in  the  Investment  fund,  an  amount 
equal  to  or  greater  than  the  amount  of  the 
several  orders,  there  is  no  proof  of  embez- 
>:lemeut  of  these  particular  funds.  We  do  not 
agree  with  this  contention.  These  transfers 
were  made  from  time  to  time  covering  a 
period  from  November  30,  1907,  to  March, 
1908,  and  it  appeared  by  testimony  that  the 
records  of  the  corporation  as  kept  under  the 
direction  of  the  respondent  showed  a  balance 
of  cash  on  hand  of  |17,898,  while  the  bank 
records  showed  on  that  date  that  practically 
all  the  funds  had  been  withdrawn  from  the 
bank;  the  aggregate  balances  being  not  to 
exceed  in  all  $400.  In  addition  to  this, 
proof  was  made  of  the  demand  of  these  vari- 
ous holders  of  warrants  on  the  respondent 
and  of  his  statements  from  time  to  time 
that  there  was  no  money  at  hand  to  meet 
the  demands.  This  testimony  certainly  had 
some  tendency  to  show  a  misappropriation  of 
these  funds,  and  does  not  rest  upon  the  ad- 
mission of  the  respondent  alone.  The  funds 
had  in  fact  disappeared,  and  they  were  with- 
in the  control  of  the  respondent  The  fact 
that  transfers  of  other  funds  from  the  sec- 
retary's account  to  the  investment  account 
occurred  does  not  necessarily  meet  this  proof. 
It  would  be  open  to  inference  that  the  funds 
so  transferred  proi)erly  belonged  In  the  in- 
vestment fund,  and  the  fact  that  these  funds 
which  were  transferred  to  the  secretary's 
fund  were  used  up  without  payment  to  the 
parties  for  whom  the  funds  were  intended  is 
some  evidence  of  misappropriation. 

It  becomes  unnecessary,  therefore,  to  deter- 
mine whether  the  respondent's  admissions  of 
the  fact  of  misappropriation  of  these  funds 
would  be  sufficient  proof  of  corpus  delicti, 
for  we  think  there  was  enough  proof  of 
substantive  facts  independent  of  his  admis- 
sions to  carry  the  case  to  the  Jury. 

As  to  the  second  question,  the  prosecution 


is  predicated  upon  Act  No.  102,  p.  149,  Pub. 
Acts  1905,  which  provides:     "If  any  offlcer, 
agent,   clerk  or   servant,   of  any   voluntary 
association,  limited  partnership  association  or 
Incorporated  company,  or  of  any  city,  town- 
ship, incorporated  town  or  village,  school  dis- 
trict or  other  public  or  municipal  corporation, 
or  if  any  clerk,  agent  or  servant  of  any  pri- 
vate persons,  or  of  a  copartnership,  except 
apprentices  and  other  persons,  under  the  age 
of  sixteen  years,  shall  embezzle  or  fraudu- 
lently dispose  of  or  convert  to  his  own  use, 
or  shall  take  or  secrete  with  intent  to  embez- 
zle and  convert  to  his  own  use,  without  cod- 
sent  of  his  employer  or  master,  any  money  or 
other  property  of  another,  which  shall  have 
come  to  his  possession,  or  shall  be  under  Iiis 
charge  by  virtue  of  such  office  or  employment, 
he  shall  be  deemed  by  so  doing,  to  have  com- 
mitted the  crime  of  larceny.".    We  do  not 
consider  this  act  unconstitutional.    The  act 
providing  for  the  incorporation  of  this  com- 
pany is  an  act  entitled  "An  act  to  provide  for 
the  Incorporation  of  supreme,  grand  and  sub- 
ordinate lodges  of  the  'United  Home  Pro- 
tectors' Fraternity,'  a  co-operative  fraternal 
building  and  loan  society  or  order."     The 
first  section  provides:    "That  a  supreme  lodge 
and  grand  and  subordinate  lodges  of  the 
'United  Home  Protectors'  Fraternity'  may  be 
Incorporated  in  pursuance  of  the  provisions 
of  this  act"     The  second  section  provides 
for   the   incorporation   of   members  of  the 
supreme  lodge.    Section  10  provides  for  the 
incorporation  of  subordinate  lodges.    The  con- 
stitutional provision  which  is  invoked  is  sec- 
tion 1  of  article  15  of  the  Constitution  of 
1850,  which  provides  that  corporations  may 
be  formed  under  general  la«-s,  but  shall  not 
be  created  by  special  act  except  for  munic- 
ipal purposes.     We  are  not  dealing  with  a 
case  in  which  a  single  corporation  Is  author- 
ized by  statute.     Under  this  title  and  the 
provisions  of  sections  1  and  10,  grand  and 
subordinate  lodges  may  incorporate.    To  hold 
that  this  is  the  creation  of  a  corporation  by 
special  act  would  be  equivalent  to  holding 
that  fraternal  societies  which  have  a  supreme 
head  could  not  under  any  circumstances  or 
under  any  authority  be  authorized  to  incor- 
porate.    This  would  be  far-reaching  In  Its 
results.    Other  statutes  confer  similar  powers 
to  incorporate  upon  other  fraternal  beneflt 
societies,  notably  the  Ladies  of  the  Macca- 
bees (Comp.  Laws,  8034),  grand  temple  and 
subordinate    temples    of    Rathbone    Sisters 
(Comp.  Laws,  8010),  and  Knights  of  Pythias 
(Comp.  Laws,  8001).     We  think  it  is  no  in- 
fraction of  this  constitutional  provision  to 
confer  upon  stKh  society  the  right  to  incor- 
porate under  a  law  which  provides  for  an  un- 
limited number  of  corporations,  including  the 
one  corporation  which  is  supreme  in  the  so- 
cial relations  of  the  society. 

The   respondent   was   properly   convicted, 
and  the  conviction  ia  affirmed. 


Digitized  by  LjOOQIC 


Mich.) 


POURNIBR  V.  DETROIT  UNITBD  ET. 


299 


FOURNIEB  y.  DETROIT  UNITBD  RT. 
(Supreme  Court  of  Micbigan.     July  15,  1909.) 

Pleading   (J   248*)— Declaration  —  Amend- 
ment—Different  Causes  of  Action. 

A  declaration,  alleging  damages  sustained 
through  an  injury  resulting  from  defendant's 
n^ligence,  cannot  be  so  amended,  after  plain- 
tiff's death  and  the  revival  of  the  action  m  the 
name  of  his  administrator,  as  to  authorize  a  re- 
covery of  damages  for  wrongful  death,  author- 
ized by  Pub.  Acts  1905,  p.  120,  No.  89;  the 
amendment  being  a  new  and  different  cause  of 
action. 

[Ed.  Note.— For  other  cases,  see  Pleading, 
Cent.  Dig.  U  686-709;    Dec.  Dig.  S  248.*] 

Error  to  Circuit  Court,  Wayne  County; 
G«orBe  S.  Hosmer,  Judge. 

Action  by  George  Fournler,  as  administra- 
tor of  the  estate  of  Mary  Fournler,  deceased, 
ngainst  the  Detroit  United  Railway.  Judg- 
ment for  plalntlfT,  and  defendant  brings  er- 
ror.   Reversed. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDER,  and  HOOK- 
ER, JJ. 

Corliss,  Leete  &  Joslyn  (Paul  B.  Moody,  of 
counsel),  for  appellant  Dobany  &  Doliany, 
for  appellee. 

HOOKER,  J.  I  am  of  the  opinion  that  a 
declaration  filed  as  commencement  of  suit, 
whereby  the  plaintiff  alleges  damages  sus- 
tained through  an  Injury  caused  by  defend- 
ant's negligence,  cannot,  after  death  of  the 
plaintiff  and  revival  by  and  In  the  name  of 
the  administrator,  be  so  amended  as  to  au- 
thorize proof  of  damages  under  the  provi- 
sions of  Act  No.  89,  p.  120,  Pub.  Acts  1005, 
for  the  reason  that  It  is  the  Introduction  of 
a  new  and  different  cause  of  action. 

The  Judgment  should  be  reversed,  and  a 
new  trial  ordered. 

GRANT,  MONTGOMERY,  and  OSTRAN- 
DER, JJ.,  concur. 

BLAIR,  0.  J.  On  December  24, 1906,  Mrs. 
Mary  Fournler  commenced  suit  against  de- 
fendant by  declaration  to  recover  damages 
for  Injuries,  pain,  suffering,  etc.,  alleged  to 
hare  been  received  on  October  27,  1906, 
through  the  negligence  of  defendant's  con- 
ductor in  causing  a  certain  electric  car  to 
be  suddenly  started  while  she  was  attempt- 
ing to  board  the  same.  A  plea  of  the  gen- 
eral issue  was  duly  filed,  and  afterwards, 
on  February  6,  1907,  Mrs.  Fournier  died, 
leaving  a  husband,  George  Fournler,  and 
several  children.  On  March  28,  1907,  George 
Fournler  was  appointed  administrator  of  bis 
wife's  estate,  and  on  April  3.  1907,  an  order 
was  entered  reviving  the  cause  in  the  name 
of  George  Fournler  as  administrator.  On 
February  21,  1908,  a  Jury  was  Impaneled  and 
sworn  in  the  case,  and  plaintiff's  counsel 


opened  the  case  to  the  Jury.  On  February 
24th  counsel  for  plaintiff  asked  leave  to  file 
ap  amended  declaration,  which  the  court 
permitted,  saying:  "The  Court:  I  doubt  my- 
self, as  I  said  the  other  day — I  will  let  coun- 
sel put  his  statement  on  the  record;  but  in  a 
case  like  this,  where  it  survives,  and  the 
declaration  w;as  filed,  I  think  that  is  all  that 
Is  necessary;  but  if  counsel  wants  to  put  an 
amended  declaration  In,  in  view  of  alleged 
things  which  happened  subsequent  to  the  be- 
ginning of  the  suit,  I  think  I  will  let  him  do 
it.  1  do  not  understand  it  changes  the  alle- 
gations of  negligence.  It  only  changes  the 
matter  with  reference  to  tlie  damages.  Mr. 
Dohany:  Yes,  that  Is  all,  your  honor.  Mr. 
Moody:  It,  In  our  Judgment,  entirely  changes 
the  cause  of  action.  Will  your  honor  give 
me  the  benefit  of  an  exception?  The  Court: 
You  may  have  the  benefit  of  an  exception." 
The  amended  declaration,  after  setting  up 
the  plalntlfTs  representative  capacity  and 
other  formal  matters  and  allegations  of  du- 
ties and  negligence  substantially  iu  the  lan- 
guage of  the  original  declaration,  averred 
Mrs.  Foumler's  death  as  a  result  of  her  in- 
juries, and  that  In  consequence  of  said  In- 
juries she  suffered  great  pain  continually. 
The  declaration  further  averred  that  plain- 
tiff, as  husband,  and  several  children,  naming 
them,  were  entitled  to  Intestate's  personal 
estate  under  the  statutes  of  distribution  and 
were  entitled  to  bring  an  action  for  the  pe- 
cuniary injuries  suffered  by  them  in  conse- 
quence of  her  decease.  In  submitting  the 
case  to  the  Jury,  the  court  instructed  them 
that,  if  Mrs.  Foumler's  death  was  due  to  the 
fall  from  the  car,  plaintiff  would  be  enti- 
tled to  recover  for  pecuniary  injuries  con- 
sequent thereon.  The  court  thereupon  fur- 
ther instructed  the  Jury,  as  follows:  "Under 
the  other  circumstances,  if  you  find  that  to 
be  true,  then,  gentlemen  of  the  Jury,  as  sur- 
vivor of  his  wife,  the  plaintiff  would  be  en- 
titled to  recover  in  this  case  at  your  hands 
such  damages  as  you  find  would  compensate 
her  for  the  suffering  that  she  endured  by 
reason  of  the  fall  on  the  27tb  day  of  Ocfo- 
ber  up  to  the  time  of  her  death.  I  cannot 
lay  down  any  rules,  gentlemen  of  the  Jury, 
for  guiding  you  in  reaching  that.  Tliat,  gen- 
tlemen of  the  Jury,  is  a  matter  for  your  com- 
mon sense,  and  you  must  reach  it  lu  that 
way,  and  so,  gentlemen,  for  all  the  sufferings 
that  she  endured  (I  do  not  mean  to  say  the 
suffering  from  the  pneumonia  Itself),  if  you 
find  that  the  fall  was  not  the  proximate 
cause  of  that,  but  all  the  suffering  and  in- 
convenience and  discomfort  resulting  to  her 
from  that  fall  for  as  long  as  you  find  that 
that  lasted.  Now,  I  have  prepared  a  ques- 
tion here,  gentlemen  of  the  Jury,  to  submit 
to  you,  because  there  might  not  perbaps  be 
the  same  distribution  of  those  damages  in 
the  one  case  as  in  the  other,  and  so  to  aid 


•For  other  ca*ei  kee  same  toslc  and  tectioa  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  ft  Reoorter  Indaxw 


Digitized  by  VjOOQ  l€ 


300 


122  NOBTHWESTEEN  RBPORTEB. 


(Mich. 


me,  gentlemen,  In  the  determination  of  this 
matter,  I  ask  yon  to  answer  this  qnestlon 
either  yes  or  no,  as  you  will  find  it.  frgm 
the  evidence  which  has  been  submitted  to 
yon:  'Was  the  fall  from  the  car  Mrs.  Four- 
nier  received  on  October  27,  1906,  the  direct 
or  proximate  cause  of  the  pneumonia  which 
resulted  in  her  death?'  I  wish  you  to  take 
that,  gentlemen  of  the  Jury,  to  your  room 
and  answer  it,  according  as  your  Judgment 
shall  dictate,  yes  or  no,  by  simply  writing 
the  word  yes  or  no  in  answer  to  that  qnes- 
tlon." The  Jury  answered  the  special  ques- 
tion in  the  affirmative  and  returned  a  verdict 
of  $1,600  la  favor  of  plaintiff. 

Defendant  brings  the  record  to  this  court 
for  review  upon  writ  of  error,  assigning  as 
error,  among  other  assignments,  that  the 
court  erred  "in  permitting  the  plaintiff  to 
die  an  entirely  new  declaration  setting  up  a 
new  and  distinct  cause  of  action."  We  are 
of  the  opinion  that  this  assignment  is  well 
founded.  The  court,  as  evidenced  by  the 
above  quotations  from  the  charge,  regarded 
the  declaration  as  warranting  a  recovery  for 
different  species  of  damages  to  be  awarded 
by  the  Jury  as  they  should  determine  that 
the  death  did  or  did  not  result  proximately 
from  the  injuries.  If  the  Jury  found  that 
death  did  not  result  immediately  from  the 
injuries,  but  from  entirely  Independent  caus- 
es, we  think  that  Act  No.  86,  p.  120,  of  the 
Public  Acts  of  1905,  would  not  apply.  The 
title  of  that  act  is  "an  act  to  prescribe  the 
measure  of  damages  in  actions  for  negligent 
injuries  to  persons  where  deaths  result  and 
where  the  actions  are  prosecuted  under  the 
survival  act,"  etc.  Section  1  provides  that: 
"In  all  actions  for  negligent  injury  to  per- 
sons hereafter  prosecuted  by  the  executor 
or  administrator  of  an  injured  person,  under 
the  statute  which  declares  that  said  actions 
shall  survive,  the  measure  of  damage  in 
each  case,  shall  be  such  a  sum  as  the  court 
or  Jury  shall  deem  fair  and  Just  with  refer- 
ence to  the  pecuniary  injury  resulting  from 
the  death  of  the  injured  person.  •  •  •" 
The  reasonable  interpretation  of  this  act 
from  its  title  is  that  it  was  designed  to  es- 
tablish a  measure  of  damages  for  n^ligent 
injuries  resulting  in  death,  where  such  death 
was  not  immediate,  and  the  body  of  the  act 
is  consistent  with  this  view.  If  the  Jury 
found,  on  the  other  hand,  that  the  injuries 
were  the  proximate  cause  of  death,  Act  No. 
89  would  apply  and  would  fix  the  measure  of 
damages.  The  declaration  as  amended,  if 
valid,  would  warrant  a  recovery  for  either 
class  of  damages,  and  the  evidence  put  in 
would  have  supported  a  negative  answer  by 
the  Jury  to  the  special  finding.  We  are  there- 
fore of  the  opinion  that  the  trial  Judge  erred 
in  permitting  the  amendment  Hurst  v. 
RaUway  Co.,  84  Mich.  539,  48  N.  W.  44;  Dol- 
Bon  T.  Railroad  Co.,  128  Mich.  444,  87  N.  W. 


829;   Walker  v.  Traction  Co.,  144  Mich.  685, 
108  N.  W.  90. 

The  Judgment  is  reversed,  and  a  new  trial 
granted. 


SARIN   T.    NORTHWESTERN    LEATHER 

CO. 
(Supreme  Court  of  Michigan.    July  15,  1909.) 

1.  Masteb  and  Servant  (f  157*)— Machines 
— Opkbatioh-^-Dutt   to    Instkuot. 

Where  plaintiff  was  instructed  generallr 
as  to  the  operation  of  a  hide  polisher  In  a  tan- 
nery, the  master  was  not  bound  to  give  further 
instruction,  unless  there  was  somethins  peculiar 
about  the  machine,  or  in  the  manner  of  its  oper- 
ation, which  necessitated  further  instruction 
than  was  required  to  be  given  to  one  operating 
a  like  machine  in  good  repair. 

[Ed,  Note. — For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  i  303;   Dec.  Dig.  |  157.*] 

2.  Masteb  and  Sebvant  ({  288*)— Injubiks 
to  Sebvant— Defective  Macuinb— Asstrii- 
■D   Risk. 

Where  plaintiff,  a  youth  of  16,  without' 
previous  experience,  was  set  to  operate  a  hide 
polisher,  and,  after  having  been  given  general 
mstructions,  only  operated  the  machine  six 
days,  during  which  he  discovered  that  the  ma- 
chine had  a  tendency  to  jerk  the  leather  out  of 
his  hands  when  polishing  over  rough  places, 
and  there  was  also  evidence  that  the  machine 
was  erratic,  and  required  frequent  adjustment, 
and  plaintiff's  hand  was  drawn  into  the  ma- 
chine and  injured  by  a  sudden  jerk  of  the  hide 
more  intense  than  before,  plaintiff  did  not  as- 
sume the  risk  as  a  matter  of  law. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  §§  1079-1082;  Dec  Dig. 
§  288.*i 

Error  to  Circuit  (3ourt,  Chippewa  County ; 
Joseph  H.  Steere,  Judge. 

Action  by  Roy  Sabin,  by  Sarah  J.  Sabln, 
his  next  friend,  against  the  Northwestern 
Leather  Company.  Judgment  for  plaintltT, 
and  defendant  brings  error.  -  Affirmed. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Fred  L.  Vandeveer  (Horace  M.  Oren,  of 
counsel),  for  appellant  Sharpe  &  Handy, 
for  appellee. 

OSTRANDER,  J.  There  are  two  counts  In 
the  declaration.  In  the  first  it  is  alleged  that 
the  defendant  "negligently  set  the  plaintiff 
to  work  on  said  machine  without  instruction 
as  to  the  safest  and  best  methods  of  handling 
such  work  and  neglected  to  warn  liim  of  the 
dangerous  condition  of  the  said  machine, 
and  unreasonably  required  the  plaintiff  to 
finish  1,000  hides  per  day,  and  failed  and  neg- 
lected to  keep  said  machine  in  reasonable 
repair,  but  permitted  the  same  to  get  out 
of  repair  in  such  a  manner  that  the  usder- 
surface  of  said  polisher  was  uneven  and 
rough,  and  the  pressure  of  the  polisher  n^iion 
the  leather  as  it  passed  through  the  said  ma- 
chine varied  greatly,  and  became  much  great- 
er at  some  times  than  at  others,  with  (the 
result  that  the  motion  of  the  said  poUsIfaer 
and  its  coming  in  contact  with  the  leatlier 


•For  otbcr  casM  «••  same  toplo  and  section  NUMBER  lo  Dee.  *  Am.  Olii.  1S07  to  dat«,  *  Reporter  Iade.'xM 


Digitized  by  LjOOQIC 


Mich.) 


SABIN  ▼.  NORTHWESTERN  LEATHER  CO. 


301 


In  the  bands  of  the  plaintiff  had  the  effect  to 
Jerk  the  leather  violently,  by  reason  of  which 
on,  to  wit,  the  day  and  year  aforesaid,  with- 
out any  fault  or  negligence  on  the  part  of 
tlie  plaintiff,  and  while  he  was  carefnlly  at- 
tending to  his  duties  as  usual,  the  leather  In 
the  hands  of  plaintiff  suddenly  received  a 
rioleut  jerk,  and  plaintiff  was  jerked  or 
thrown  suddenly  forward,  and  his  left  band 
wag  caught  by  the  said  machine,"  etc.  In 
the  second  it  is  alleged  that:  "The  machine 
on  which  plaintiff  was  put  to  work  consisted 
of  a  flaf  surface  or  table,  and  above  and  sus- 
pended over  such  table  an  iron  smoothing 
and  polishing  apparatus,  hereinafter  called 
the  polisher,  attached  to  and  operated  by  an 
arm  so  connected  as  to  give  such  polisher 
a  rapid  rotary  motion,  such  motion  raising 
the  polisher  from  the  table  a  few  Inches, 
bringing  It  forward  towards  the  person  In 
charge,  then  dropping  it  upon  the  leather  as 
it  lay  upon  the  table  and  then  drawing  the 
polisher  away  from  the  operator  along  tbe 
surface  of  the  leather,  the  friction  drawing 
such  leather  gradually  through  and  under 
8ucb  polisher,  and  by  means  of  the  person  in 
charge  holding  such  leather  in  bis  hands 
and  guiding  the  same,  such  leather  was 
gradually  exposed  to  the  action  of  such  pol- 
isher until  the  whole  surface  thereof  was 
smoothed  and  polished,  when  It  was  removed 
and  another  hide  substituted.  It  was  well 
known  to  defendant  that  the  machine  on 
which  plaintiff  was  put  to  work  was  not  in 
good  repair,  and  was  defective  In  its  con- 
struction, so  as  to  render  It  dangerous  to 
work  upon,  and  would  frequently  get  out  of 
repair  very  suddenly  In  such  a  manner  that 
the  friction  of  the  polisher  upon  the  leather 
in  the  hands  of  the  operator  was  suddenly 
greatly  Increased,  and  the  machine  would 
jerk  the  leather  violently  and  suddenly,  so 
that,  either  the  leather  would  be  jerked  out 
of  the  operator's  bands,  or,  If  the  operator 
bad  a  firm  hold  upon  such  leather,  he  would 
l.o  jerked  forward  towards  such  machine. 
Plaintiff  alleges  that  It  was  the  duty  of  the 
defendant  to  repair  or  rebuild  such  machine, 
and  to  place  the  same  in  reasonably  safe 
condition  to  operate,  and  to  warn  the  plain- 
tiff of  the  dangerous  condition  of  such  ma- 
chine, and  Instruct  him  bow  to  operate  the 
game  safely,  and  warn  bim  of  the  danger  of 
being  jerked  forward  by  such  machine,  and 
getting  bis  hands  Into  said  machine,  yet  the 
said  defendant,  well  knowing  the  premises, 
failed  and  neglected  to  perform  its  said  du- 
ty to  plaintiff,  and  failed  and  neglected  to 
rebuild  or  repair  the  said  machine  so  as  to 
render  it  safe  for  use,  and  failed  to  warn 
plaintiff  of  tbe  dangerous  condition  of  said 
machine,  and  failed  to  warn  plaintiff  of  the 
danger  of  being  jerked  towards  or  Into  said 
machine,  and  how  to  guard  against  tbe  dan- 
ger of  being  drawn  or  jerked  into  said  ma- 
chine, by  reason  of  which  the  plaintiff,  with- 
out any  fault  or  negligence  on  his  part,  and 
while  engaged  in  his  usual  duties  in  running 


such  machine,  was  suddenly  jerked  forward 
by  the  unusual  friction  of  such  machine,  and 
plaintiff's  fingers  of  his  left  hand  were  caught 
In  such  machine,"  etc. 

If  defendant  was  negligent  in  not  instruct- 
ing the  plaintiff,  It  was  because  there  was 
something  peculiar  about  the  particular  ma- 
chine, something  In  its  condition,  or  In  the 
manner  In  which  It  performed,  which  raised 
the  duty  to  give  other  or  further  instructions 
than  were  required  to  be  given  to  one  operat- 
ing a  like  machine  in  good  repair.  It  is 
therefore  necessary  to  examine  with  care  tbe 
testimony  concerning  the  condition  of  tbe 
machine  and  the  way  It  performed  in  opera- 
tion. 

There  Is  no  testimony  tending  to  prove  that 
tbe  "undersurface  of  said  polisher  was  un- 
even and  rough."  There  is  no  testimony 
tending  to  prove  that  the  machine  was  de- 
fective In  construction,  or  that  it  was  out 
of  repair  In  the  sense  that  any  necessary  part 
was  wanting  or  was  Imperfect  Tbe  ma- 
chine, called  a  jack,  was  one  of  seven;  was  of 
standard  make;  adapted  to  tbe  purpose  for 
which  it  was  used.  It  was  used  to  smooth 
and  polish  hides  of  leather  called  "splits."  In 
its  operation  an  arm  carrying  at  its  head  a 
plate  called  the  polisher  moved  towards  tbe 
front  of  the  machine,  descended  to  and  struck 
an  inclined  bolster,  and  was  drawn  backward 
and  downward  for  a  distance,  when  it  was 
lifted  and  the  movement  was  repeated.  The 
movement  was  constant,  and  is  described  as 
at  a  rate  of  160  revolutions  a  minute.  A  hide 
was  thrown  by  tbe  openitor  over  tbe  bolster, 
and  over  a  table  which  surrounded  It  on 
three  sides,  and  the  pressure  of  the  polisher 
upon  the  leather  smoothed  It  The  operation 
Involved  such  movement  and  manipulation  of 
the  hide  when  the  arm  was  lifted  and  was  ad- 
vancing that  its  entire  surface  was  passed 
over  the  bolster  and  under  tbe  polisher. 
Some  hides  were  rougher  than  others ;  in 
some  were  holes,  rough  spots,  and  some  hides 
were  from  branded  cattle.  The  pressure  of 
tbe  polisher  upon  the  hide  being  otherwise 
constant,  tbe  friction  caused  by  the  passing 
of  the  head  or  polisher  over  the  leather 
would  be,  in  some  degree,  variable  as  thick 
and  rough  places  in  the  leather  were  encoun- 
tered. The  tendency  at  all  times  was  to  pull 
tbe  hide  away  from  the  operator  towards  the 
back  of  the  table  in  tbe  line  of  the  descend- 
ing, polishing  strokes  of  the  arm.  With  a 
perfect  machine,  perfectly  adjusted,  there 
was  tile  danger,  the  principal  and  obvious 
risk,  of  tbe  employment,  that  the  swiftly  mov- 
ing polisher  would  be  brought  Into  contact 
with  a  rough  spot,  a  brand  or  scar,  or  a  hole 
In  the  leather,  jerking  tbe  operator  If  he 
maintained  his  hold  upon  the  hide  towards 
the  machine,  and,  according  to  the  position 
in  which  he  stood,  towards  tbe  moving  arm. 

Plaintiff  testified:  "Some  of  the  leather 
would  be  rough.  Sometimes  there  would  be 
a  hole  or  place  where  It  was  branded.  Tf 
the  polisher  happened  to  get  on  that,  that 


Digitized  by  VjOOQ  l€ 


302 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


would  Jerk  It.  When  that  would  Jerk,  I  had 
to  let  It  go,  and  go  around  and  pick  it  up. 
The  reason  that  I  would  let  It  go  was  be- 
cause It  would  Jerk  away  from  me,  It  would 
flop  out  of  my  hands.  •  •  •  If  the  leath- 
er was  jerked,  I  would  turn  loose  of  it,  so  as 
not  to  get  caught.  This  would  happen  occa- 
sionally every  day,  and  sometimes  two  or 
three  times  an  hour.  When  I  first  started  to 
do  this  work,  I  did  not  try  to  hold  on  to  the 
leather.  I  did  not  try  because  there  was  too 
much  power  there.  I  could  not  hold  it,  be- 
cause it  was  being  pulled  away  with  so  much 
strength,,  and  my  strength  was  not  equal  to 
holding  it.  I  realized  that  I  would  have  to 
turn  loose  of  it,  and  simply  turned  around 
and  picked  it  up.  I  realized  that,  if  I  held 
on,  I  might  be  drawn  in,  and  for  that  rea- 
son I  turned  loose.  I  knew  of  this  before 
the  accident.  •  •  •  This  work  that  I  was 
doing,  feeding  this  in,  was  a  comparatively 
simple  operation.  You  had  to  be  quick  about 
it  and  dexterous.  As  soon  as  I  got  through 
with  one  hide,  I  would  take  another.  You 
wonld  have  to  place  it  on  the  horse  and  reach 
over  on  the  other  side  and  get  another  one. 
Outside  of  the  fact  that  occasionally  one  of 
these  wonld  be  pulled  out  of  my  hands,  I  got 
along  all  right."  Describing  the  manner  of 
his  injury,  he  said:  "I  think  at  the  time  I 
received  the  injury,  I  had  a  bide  al>out  half 
dressed,  half  polished.  There  was  not  any- 
thing at  all  on  that  hide  in  the  way  of  pecu- 
liar places  that  I  saw.  I  do  not  know  why 
this  machine  Jerked  at  that  particular  time. 
It  Jerked  a  good  dehl  harder  on  that  occa- 
sion than  I  had  ever  had  it  Jeife  before.  I 
had  no  preliminary  warning  before  that.  The 
Jerking  had  not  increased  before  that,  lead- 
ing up  to  this.  It  had  been  running  about 
as  usual.  I  do  not  know  now  as  to  Just  what 
caused  that  Jerking.  I  know  that  the  ma- 
chine previously  had  acted  so  that  it  would 
Jerk  away  a  hide,  and  had  to  be  adjusted. 
I  never  had  my  fingers  pinched  before. 
•  •  •  At  the  time  that  I  got  hurt  I  was 
working  the  leather  around.  I  bad  a  side 
of  leather  in  the  machine.  When  I  was 
working  this  leather  around  in  the  machine, 
this  Jack  gave  a  Jerk,  and  I  had  a  grip  on  it, 
and  it  Jerked  so  hard  and  Jerked  my  weight 
over  on  it,  and  I  did  not  have  time  to  get 
l)ack  out  of  the  road,  and  it  caught  my  two 
fingers,  and  it  pulled  them  two  fingers  off, 
and  pulled  my  arm  In  front  of  the  machine, 
and  it  came  back  again,  and  smaslied  my 
arm,  and  in  coming  back  my  head  was  right 
beside  it,  and  it  shoved  me  about  10  feet 
away  from  the  nwchine."'  Plaintiff  also  tes- 
tified that,  upon  being  told  that  he  might  op- 
erate this  machine,  he  oiled  it,  set  it  in  mo- 
tion, and  operated  it  for  some  45  minutes, 
putting  through  25  hides,  before  the  foreman 
had  opportunity  to  Instruct  him  in  its  use. 
lie  said :  "I  knew  that  the  Jeather  did  Jerk 
occasionally.  I  found  that  out  from  my  ex- 
perience In  the  first  45  minutes.  After  he 
gave  me  that  Instruction,  I  still  liad  some 
trouble  by  it  still  Jerking  before  I  caught  on 


Just  how  to  operate  it.  I  have  no  idea  hoTV 
many  bides  it  Jerked  with  me  that  day. 
There  were  several  times  every  boar.  The 
longer  I  worked  at  it  the  more  proficient  I 
t>ecame." 

Plaintlil  was  16  years  old,  and  had  no  pre- 
vious experience.     He  began  work  on  Mon- 
day, March  11th,  and  was  injury  on  Mon- 
day, March  18th,  at  about  11  o'clock  In  the 
forenoon.     He  operated  no  Jack  other  than 
the  one  at  which  he  was  set  to  work.     He 
bad  put  through,  when  injured,  about  5,00O 
hides.    The  testimony  for  plaintiff  also  tends 
to  prove  (what  would  seem  to  be  a  self-evi- 
dent proposition)  that  in  operating  the  other 
jacks  the  same  dlflSculty,  in  kind  if  not  in  de- 
gree, was  met  with.    The  hides  were  pulled 
away  from  the  operator  by  the  descending, 
polishing  stroke  of  the  arm.    There  is  testi- 
mony tending  to  prove  that  the  bolsters  on 
all  of  the  machines  worked  up,  causing  an  in- 
creasing pressure  of  the  polisher  upon  tlie 
hides.    This  was  remedied -by  some  adjust- 
ment of  the  machines.    There  is  also  testi- 
mony  that  the   particular   machine  Jerked 
worse    than    the   other    machines,    required 
more  frequent  adjustment,  and  that  the  ad- 
justments made  after  plaintiff  began  to  oi>- 
erate  the  machine  were  made  at  Irregular  In- 
tervals.   Upon  this  subject  the  plaintiff  testi- 
fied, in  part,  as  follows:   "There  were  times 
when  this  machine  Jerked  so  much  thnt   I 
went  to  the  foreman  and  asked  him  to  fix  it. 
He  repaired  this  machine  on  Monday,  the 
first  day  I  was  there.    He  took  it  apart,  and 
I  think  on  Tuesday  be  adjusted  the  screw, 
and  he  did  not  touch  it  again  until  Thurs- 
day, and  he  took  and  adjusted  the  screws 
again.    From  Thursday  until  the  day  I  was 
hurt,  it  was  not  touched,  was  not  changed  at 
all,  as  I  recollect.     He  made  these  repairs 
when  I  went  to  him  and  told  him  about  its 
jerking.     The  time  I  went  to  him  and  told 
him  al)out  this  the  machine  was  acting  rough 
and  jerking  away  from  me,  Jerking  so  hard 
that  I  could  not  do  anything  with  It.     •    •    • 
I  went  over  to  Mr.  Faulkner,  and  made  some 
complaint  to  him  about  the  maciilne.    The 
nature  of  my  complaint  was  that  It  was  Jerk- 
ing from  me.    It  Jerked  so  that  I  could  not 
hold  it  at  all,  and  strong  enough  to  Jerk  It 
away  from  my  hands.     Mr.  Faulkner  went 
over  and  made  some  adjustment  on  the  bol- 
ster.   He  did  not  do  anything  to  the  arm  or 
polisher.    The  only  adjustment  he  made  was 
to  the  bolster  underneath.    On  Monday  he  re- 
paired it,  and  on  Tuesday  he  adjusted  it,  and 
I   think   it  was  the  following  Thursday  he 
adjusted   it   again.      He   handled   some  'set 
screws   underneath.     The  last   time  he  did 
that  was  Thursilay  In  the  forenoon,  al>out  10 
or  11  o'clock,  or  sometliing  like  that.    I  work- 
ed on  the  machine  all  the  rest  of  Thursday 
and  Friday  and  Saturday  and  up  until  11 
o'clock  Monday  morning.     During  that  time 
I  made  no  complaint  about  It.     It  was  all 
right   up   until   I   got   hurt,   when   suddenly 
something  happened,  and  the  jerk  occurred 
and  my  hand  was  pulled  in." 


Digitized  by  VjOOQ  IC 


Mich.) 


PERE  MARQUETTE  R.  CO.  v.  WEILNAU. 


303 


Plaintiff  was  not  taught.  Indeed  was  for- 
bidden, to  adjust  the  machine.  He  also  tes- 
tified, not  always  consistently:  "If  there 
was  a  rough  place,  and  I  tried  to  polish  It, 
the  leather  would  be  Jerked.  I  knew  that  If 
the  leather  was  Jerked,  and  I  had  hold  of  It 
and  did  not  turn  loose,  iny  hand  would  be 
Jerked  too.  I  knew  If  my  hand  was  Jerked 
forward.  It  might  be  caught.  •  •  •  Some- 
times this  leather  would  be  Jerked  out  of  my 
hands  when  It  would  get  caught  on  rough 
places;  that  is,  when  the  polisher  would 
catch  on  rough  places.  I  never  bad  it  catch 
on  a  brand.  I  do  not  mind  of  Its  catching  on 
a  rough  place.  Sometimes  when  I  had  a 
smooth    piece    of    leather    it    would    Jerk. 

*  *  *  I  did  not  get  any  instruction  as  to 
what  to  do  about  rough  places  being  In  the 
leather,  how  to  polish  those.  When  there 
were  rough  places  to  get  around  them,  I  had 
to  skip  them.  I  had  to  do  so  because  I  could 
not  iwlish  them,  it  would  pull  out  of  my 
hands.  When  I  got  a  piece  of  leather  with 
rough  places  In  It,  and  the  polisher  was  over 
them,  it  would  pull  it  out  of  my  hands.  I 
do  not  know  whether  it  did  this  the  first  day 
I  worked  the  Jack.  It  happened  a  number  of 
times  before  I  got  hurt,  so  I  came  to  the 
couclnslon,  I  could  not  polish  the  rough 
places.  The  reason  I  could  not  was  because 
the  polisher  would  Jerk  It  out  of  my  hands. 

•  •  •  When  the  polisher  would  Jerk,  my 
hand  would  not  go  forward.  It  would  Jerk  It 
out  of  my  hands.  My  bands  would  go  a 
trifle  forward.  I  knew  without  being  told 
that  I  was  not  able  to  polish  the  rough 
places;  that  the  leather  would  be  Jerked 
away  from  me.  At  some  times  my  hands 
would  be  within  four  inches  of  the  polisher. 
I  did  not  realize  that  If  I  did  try  to  do  one 
of  those  rough  places  and  was  caught,  and 
my  hands  were  within  four  Inches,  there  was 
a  possibility  of  my  hands  being  drawn  In  If 
I  did  not  let  loose.  I  knew  that  I  could  not 
do  It  I  did  not  realize  that,  if  I  held  on  to 
it,  and  that  If  my  hands  were  within  four 
inches  of  the  polisher,  my  hands  would  get 
in.  I  did  not  think  there  was  any  danger  of 
that  at  all.  •  •  •  I  f(>und  out  from  using 
this  machine  that  It  Jerked  the  leather  oc- 
casionally and  quite  often,  and  sometimes  It 
jerked  quite  hard.  Sometimes  I  could  not 
Jack  a  hide  and  I  had  to  give  It  to  the  boy 
next  to  me." 

It  will  be  perceived  that,  accepting  plain- 
tiff's version  of  the  facts,  the  case  is  a  very 
close  one.  But  we  are  not  able  to  say,  as 
matter  of  law,  that  the  testimony  falls  to 
show  that  this  machine  had  habits,  peculiari- 
ties, of  which  the  employer  was,  or  ou^ht  to 
have  been,  aware,  with  respect  to  which  the 
plaintiff  should  have  been  advised.  It  Is  said 
in  argument  that  In  the  six  days  he  operated 
the  machine  successfully  plaintiff  had  run 
the  gamut  of  experience,  and. had  learned, 
without  being  told,  the  habits  of  the  machine. 
We  do  not  assent  to  this  because  we  think 


there  IB  testimony  supporting  the  conclusion 
that  the  machlue  was  eccentric,  erratic.  No 
other  reason  is  suggested  for  the  fact  that 
plaintiff  was  sometimes  obliged  to  give  tO'  an 
operator  of  a  like  machine  a  hide  which  he 
had  tried  unsuccessfully  to  treat  with  his 
own  machine.  Nor  can  the  age  and  Inexpe- 
rience of  the  plaintiff  be  wholly  Ignored  In 
determining  whether,  with  the  Instructions 
and  demonstrations  which  were  given  him, 
he  appreciated  the  risks  attending  the  op- 
eration of  this  machine. 

We  bold,  though  with  considerable  re- 
luctance, that  the  court  was  not  In  error  In 
refusing  to  direct  a  verdict  for  the  defend- 
ant. No  other  question  Is  raised  by  the  as- 
signments of  error.  The  Judgment  is  af- 
firmed. 


PERE  MARQUETTE  R.  CO.  ▼.  WEILNAU, 

Drain  Com'r. 
(Supreme  Court  of  Michigan.    July  15,  1909.) 

1.  Drains  (|  2*)  —  Excavation  —  Railboad 
culvebts. 

Comp.  Laws  1897,  {  4334,  provides  that 
whenever  it  is  necessary  to  run  a  drain  across 
a  railroad  right  of  way  the  same  proceedings 
shall  lie  had  as  for  obtaiaing  private  lands  for 
drain  construction,  except  that  the  railroad 
company,  when  notified  by  the  drain  commis- 
sioner  so  to  do,  shall  make  and  maintain  the 
necessary  opening  through  the  roadbed  and 
build  and  maintain  suitable  culverts.  Held, 
that  such  section  should  be  read  in  connection 
with  section  9,  providing  for  the  assessment  of 
just  compensation  for  the  taking  of  private 
property,  and  construed  to  authorize  the  con- 
struction of  a  drain  across  a  railroad  right  of 
way,  malting  the  construction  of  a  suitable  cul- 
vert or  bridge  a-  part  of  the  expense  of  con- 
structing the  drain,  the  statute  bemg  invalid  in 
so  far  as  it  attempts  to  impose  the  burden  of 
constructing  the  culvert  on  the  railroad  com- 
pany  without  compensation. 

[BM.  Note.— For  other  cases,  see  Drains,  Cent. 
Dig.  {  17 ;   Dec.  Dig.  {  2.*] 

2.  Dbains  (§  57*)— EsTABLiSHUENT— Damag- 
es—AWABD. 

Award  to  a  railroad  company  for  the  con- 
struction of  a  drain  through  its  fill,  to  wit,  "for 
excavating  2-100  acres,  and  to  deposit  excava- 
tions, 4-100  acres,  seventy-five  dollars,"  did  not 
include  an  award  for  the  construction  of  a  cul- 
vert, and  hence  the  drain  commissioner  had  no 
authority  to  attempt  to  construct  the  drain 
through  the  railroad  fill  without  providing  fbr 
a  culvert  and  protecting  the  railroad's  prop- 
erty. 

.  TEd.  Note. — For  other  cases,  see  Drains,  Cent. 
Dig.  §§  67-69;    Dec.  Dig.  {  57.*] 

3.  Dbains  (S  26*)— Dbainaqe  Coumissioneb 
—JUBisDicTioN— "Drain." 

Where  a  railroad  originally  maintained  an 
open  culvert  over  a  water  course  and  after- 
wards filled  up  the  culvert  and  inserted  an  iron 
pipe  for  drainage,  after  which  the  drainage 
commissioner  established  a  new  drain,  crossing 
the  railroad's  right  of  way  at  the  point  of  the 
culvert,  the  commissioner  could  invoke  the  aid 
of  tlie  court  to  assist  him  in  opening  a  culvert 
through  the  railroad  fill,  under  Comp.  Laws 
1897,  §  4309.  defining  the  word  "drain"  to  in- 
clude any  water  course  or  ditch,  opened  or  pro- 
posed to  be  opened  and  improved  for  the  pur- 
pose of  drainage  and  any  artificial  ditch  pro- 


•For  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


304 


122  NORTHWESTERN  REPORTER. 


(Ulcb. 


posed  or  constnicted  for  such  purpose,  and  sec- 
tion 4312  declared  that  the  county  drain  com- 
missioner shall  have  jurisdiction  over  all  drains 
within  his  county. 

[Ed,  Note.— For  other  cases,  see  Drains,  Cent. 
Dig.  i  18;   Dec.  Dig.  |  26.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  3,  pp.  219ft-2197.] 
4.  Dbainb  (I  47*)— Railboad  Right  of  Wat 

— CBOSSINGS— CONBTBtrCTION. 

Where  a  railroad  substituted  an  iron  pipe 
in  a  natural  water  course  for  an  open  culvert, 
and  the  drain  commissioner  thereafter  estab- 
lished a  drain  across  the  railroad  fill  at  the 
point  of  such  culvert,  the  railroad  company  was 
required  to  provide  an  opening  equivalent  to 
that  which  existed  before  the  construction  of 
the  drain,  and,  if  the  commissioner  found  it 
necessary  to  lower  the  drain  beyond  the  depth 
maintained  before  the  institution  of  the  pro- 
ceedings, the  railroad  company  was  entitled  to 
have  the  drain  constructed  and  its  roadway 
maintained  by  a  suitable  culvert  at  the  expense 
of  the  county. 

[Ed.  Note.— For  other  cases,  see  Drains,  Cent. 
Dig.  i  57 ;   Dec  Dig.  {  47.*] 

Appeal  from  Circuit  Court,  Monroe  Coun- 
ty, In  Chancery;  Harry  A.  Loclrwood,  Judge. 

Suit  by  P«re  Marquette  Railroad  Company 
against  Oeorge  A.  Wellnau,  Drain  Commis- 
sioner. Decree  for  complainant,  and  defend- 
ant .appeals.    Modified  and  affirmed. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Willis  Baldwin,  for  appellant  McPher- 
son,  Bills  &  Streeter,  for  appellee. 

MONTGOMERY,  J.  Complainant's  right 
of  way  and  track  as  originally  laid  out  and 
built  through  Monroe  county  crossed  a  natur- 
al water  course  on  section  19,  In  town  8 
soutb,  of  range  8  east.  Complainant's  pred- 
ecessors In  title  constructed  the  roadbed 
wltli  an  open  culvert  where  it  crossed  the 
natural  water  course.  On  January  29,  1907, 
an  Iron  pipe  was  laid  to  take  the  place  of 
the  open  culvert,  and  the  culvert  filled  up. 
On  January  10,  1907,  the  defendant,  as  drain 
commissioner,  caused  a  survey  to  be  made 
for  the  purpose  of  laying  out  and  establish- 
ing a  drain  which  would  cross  complainant's 
right  of  way  at  the  point  of  the  culvert  over 
the  natural  water  course.  Complainant  had 
no  knowledge  of  the  proceedings  to  lay  out 
the  drain  until  after  the  Iron  pipe  had  been 
substituted  for  the  open  culvert.  The  drain 
as  laid  out  by  the  defendant  was  more  than 
two  feet  deeper  than  the  natural  water 
course  where  it  crossed  complainant's  right 
of  way.  Complainant  offered  to  release  a 
right  of  way,  but  refused  to  pay  the  cost  of 
constructing  a  new  culvert  or  of  putting  in 
Iron  pipes  on  the  level  of  the  bottom  of  the 
drain.  Defendant  proceeded  to  condemn  a 
right  of  way  for  the  drain  across  complain- 
ant's right  of  way.  The  commissioners' 
award  reads  as  follows: 

"To  the  Pere  Marquette  Railroad  Compa- 
ny, owner  of  right  of  way  through  the  east 
^  of  southwest  fr.  V*  of  section  19,  T.  8  S., 


R.  8  B.,  from  which  right  of  way  there  is 
taken  a  strip  of  land  lying  three  rods  wide 
on  each  side  of  the  center  line  of  said  drain, 
except  where  said  drain  crosses  the  track 
bed  of  said  railroad  company,  where  lor  a 
distance  of  thirty  feet  a  strip  of  land  lying 
five  feet  wide  on  each  side  of  the  center  line 
of  said  drain  Is  taken  for  excavating  and 
to  deposit  excavations,  according  to  the  sur- 
vey thereof;  for  excavating  2-100  acres, 
and  to  deposit  excavations,  4-100  acres,  sev- 
enty-five dollars." 

On  November  8,  1907,  defendant  tendered 
complainant  $75,  and  served  upon  complain- 
ant a  notice  in  terms  requiring  the  com- 
plainant to  construct  a  culvert  In  its  road- 
bed for  a  drain.  Complainant  refused  to  ac- 
cept the  $76,  and  refused  to  construct  the 
culvert  Thereupon  an  application  was  made 
to  the  circuit  court  for  the  county  of  Monroe 
for  a  mandamus  requiring  complainant  to 
construct  a  culvert  In  compliance  with  the 
order  which  defendant  had  served  upon  com- 
plainant Upon  hearing,  the  writ  of  manda- 
mus was  denied.  The  drain  commissioner 
thereupon  claimed  the  right  to  proceed  to 
open  this  drain  without  making  any  provi- 
sion for  a  culvert  or  bridge  to  sustain  the 
complainant's  rails  and  ties,  and  commenced 
digging  through  complainant's  right  of  way 
at  the  point  where  the  drain  crossed  com- 
plainant's roadbed,  and  declared  that  unless 
restrained  by  an  Injunction,  he  would  con- 
tinue to  dig  the  drain  through  complainant's 
roadbed,  and  would  leave  complainant  to 
protect  its  track  in  such  way  as  it  might 
think  best  Complainant  thereupon  filed  this 
bill  praying  that  defendant  be  permanently 
restrained  from  interfering  with  complain- 
ant's roadbed  without  providing  complainant 
with  a  suitable  and  safe  bridge  or  culvert 
to  enable  complainant  to  continue  the  opera- 
tion of  Its  road  without  loss  or  damage  on 
account  of  the  construction  of  the  drain. 
Upon  hearing  of  the  case,  complainant  was 
granted  the  relief  prayed  for,  and  the  de- 
fendant appeals  to  this  court 

The  drain  law  (section  8  of  chapter  3,  be- 
ing Comp.  Laws,  §  4327)  provides:  "The  said 
jury  or  special  commissioners  shall  hear  the 
proofs  and  allegations  of  the  several  parties 
In  interest,  and  shall  ascertain  and  deter- 
mine the  necessity  for  such  drain,  and  tor 
the  taking  of  such  private  property  for  the 
use  and  benefit  of  the  public  for  the  purpose 
thereof,  and  the  Just  compensation  to  be 
made  therefor  In  each  case,  which  compen- 
sation shall  be  determined  without  reference 
to  any  benefits  that  may  accrue  to  the  land 
in  consequence  of  the  construction  of  such 
proposed  drain." 

Section  16  (section  4334)  provides:  "When- 
ever it  Is  necessary  to  run  a  drain  across 
the  right  of  way  or  road  bed  of  any  railroad, 
the  same  proceedings  shall  be  had  through- 
out In  all  respects  as  in  cases  provided  In 


•For  oUier  ca<«a  see  same  topic  and  section  NUMBKR  In  Dec.  *  Am.  Digs.  1907  to  data,  *  Reporter  Index* 


Digitized  by 


Google 


Mlch4) 


BROWN  T.  BENNETT. 


805 


this  act  tor  obtalslng  private  lands  for  the 
construction  of  drains,  except  as  hereinafter 
provided.  It  shall  be  the  duty  of  the  rail- 
road company,  when  notified  by  the  connty 
drain  commissioner  so  to  do,  to  make  and 
maintain  the  necessary  opening  through  said 
road  bed,  and  to  build  and  maintain  a  suit- 
able culvert  Notice  in  writing  to  make 
such  opening,  and  to  construct  such  culvert, 
shall  be  served  upon  snch  company  by  leav- 
ing a  copy  thereof  with  the  ticket  or  freight 
agent,  or  general  o£Scer  of  snch  railroad  com- 
pany, at  least  thirty  days  before  such  rail- 
road company  shall  become  liable." 

This  section  was  before  the  court  for  con- 
sideration in  the  case  of  Chicago  .&  Grand 
Trunk  Ry.  Co.  v.  Chappell,  124  Mich.  72,  82 
N.  W.  800.  It  was  there  held  that  this  sec- 
tion manifested  a  legislative  intent  to  re- 
quire the  company  to  make  such  improve- 
ment without  compensation,  and  it  was  de- 
termined that  under  the  Constitution  the 
Legislature  had  not  the  power  to  do  this. 
The  defendant  contends  that,  although  the 
Legislature  under  this  decision  could  not  im- 
pose the  burden  upon  the  railroad  company 
to  construct  its  culvot  at  Its  own  expense, 
the  statute  should  be  construed  as  imposing 
apon  the  company  the  duty  of  constructing 
and  maintaining  a  culvert,  and  that  the  ex- 
pense thereof  is  to  be  considered  as  a  part  of 
the  award,  and  it  must  be  inferred  was  in- 
cluded In  the  award. 

We  do  not  think  this  construction  is  open. 
Tbe  duty  which  is  Imposed  by  section  16 
(section  4334)  upon  tbe  railroad  company  is 
tbe  duty  to  make  and  maintain  the  necessary 
opening  through  said  roadbed  and  to  build 
and  maintain  a  suitable  culvert  The  duty 
of  constructing  the  ditch  itself  is  therefore 
as  imperatively  asserted  as  that  of  maintain- 
ing the  culvert.  In  our  view,  these  two 
sections,  when  read  together,  authorize  the 
construction  of  a  drain  across  a  railway 
right  of  way,  but  from  the  very  necessity  of 
tbe  case,  the  construction  of  such  drain  must 
include  provision  for  the  track  of  the  rail- 
way, and  this  includes  the  construction  of  a 
culvert  or  bridge.  This  should  be  included 
In  the  estimate  for  the  drain,  and  is  a  part 
of  the  necessary  expense  of  constructing  the 
drain.  In  the  present  case,  it  is  clear  that 
tbe  award  did  not  intend  to  include  the  ex- 
pense of  constructing  a  bridge.  In  fact  it 
excludes  It  If  tbe  concluding  clause  of  the 
award,  namely,  "for  excavating  2-100  acres, 
and  to  deposit  excavations,  4-ipO  acres,  sev- 
enty-five dollars,"  is  meant  to  Include  the 
award  to  the  company  for  tbe  service  of  ex- 
cavating, this  excludes  anyawai^  for  the 
construction  of  a  culvert  If  these  words 
of  the  award  are  Intended  to  designate  the 
area  of  land  taken,  which  Is  more  probable, 
It  likewise  excludes  the  idea  that  an  award 
for  services  by  the  railroad  company  was  in- 
tended.    It  follows  that  the  defendant  was 


in  the  wrong  in  attempting  to  construct  this 
drain  without  making  provision  for  con- 
structing a  culvert  and  protecting  the  prop- 
erty of  the  defendant 

It  is  suggested  In  defendant's  brief  that  In 
any  event  the  complainant  should  be  enjoin- 
ed from  obstructing  this  water  course,  on 
the  ground  that  the  30-inch  iron  pipe  was  not 
sufficient  to  carry  the  wdter  of  the  drain 
even  before  it  was  deepened.  On  the  other 
hand,  if  is  asserted  by  the  complainant  tbat 
any  obstruction  of  this  water  course  canliot 
be  made  the  subject  of  complaint  by  the 
county  drain  commissioner.  We  do  not 
agree  with  this  view.  The  drain  law  (chap- 
ter 106,  I  2,  Oomp.  Laws  1897;  compiler's 
section  4300)  provides:  "The  word  'drain' 
whenever  used  in  this  act  shall  be  deemed 
to  include  any  water  course  or  ditch,  opened 
or  proposed  to  be  opened  and  improved  for 
the  purpose  of  drainage,  and  any  artlflcial 
ditch  or  drain,  levee,  dyke  or  barrier,  or  tile 
drain  proposed  or  constructed  for  such  pur- 
pose." And  by  section  3  of  chapter  2  (being 
compiler's  section  4312)  it  is  provided:  "The 
county  drain  commissioner  shall  have  Juris- 
diction over  all  drains  within  his  county. 
•     •     *■■ 

We  think,  therefore,  that  the  drain  com- 
missioner has  such  an  interest  in  this  mat- 
ter as  to  authorize  him  to  Invoke  the  aid  of 
the  court  At  the  time  this  iron  pipe  was 
put  in.  It  was  a  drain  under  process  of  con- 
struction, legal  proceedings  for  the  enlarge- 
ment of  the  water  conrse  having  already 
been  instituted.  The  complainant  should  be 
required  to  provide  an  opening  equivalent  to 
that  and  of  the  depth  of  tbat,  which  existed 
before  the  construction  of  this  drain.  If  the 
defendant,  however,  finds  It  necessary  to 
lower  the  drain  l>eyond  the  depth  wliicb  it 
had  before  the  institution  of  the  proceedings, 
the  complainant  will  be  entitled  to  have  the 
drain  constructed  at  the  expense  of  tbe 
county,  and  this  roadway  maintained  by  a 
suitable  cnlv^t 

No  costs  of  this  court  will  be  awarded  to 
either  party. 


BROWN   V.   BENNETT   et   al. 
(Supreme  Court  of  Michigan.    Jaly  15,  1009.) 

1.  Phtsicians  and   Surgeons  (J  "16*)— Ac- 
tions FOB  Malpbacticb— Joint  Liability. 

In  an  action  against  two  physicians  for 
malpractice,  held,  that  there  was  no  joint  under- 
takmg  by  them,  and  that  want  of  skill  or  care 
on  the  part  of  one  in  leaving  a  surgical  sponge 
in  the  wound  was  not  imputable  to  tbe  other. 

[Ed.  Note.— For  other  cases,  see  Physicians 
and  Surgeons,  Cent  Dig.  i  81;  Dec.  Dig.  { 
16.*] 

2.  Pbocess  (I  62*)— CoDEFENDANTB— Nonres- 
idents. 

Comp.  Laws,  |  10,010  (Pub.  Acts  1901,  p. 
3M,  No.  226),  provides  that  where  an  action 
for  trespass  on  the  case  is  brought  in  any  cir- 
cuit court  against  two  or  more  joint  defendants, 


■For  other  ease«  sse  same  topic  and  section  NUMBER  is  Dee.  ft  Am.  Dig*.  19OT  to  date,  &  Reporter  Indexes 


122  N.W.-20 


Digitized  by 


Google 


306 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


one  or  more  of  whom  shall  not  reside  in  the 
county  or  be  found  therein,  and  service  of  pro- 
cess shall  be  made  in  such  county  upon  one  or 
more  of  such  defendants,  the  plaintiff  may  sue 
out  one  or  more  writs  to  the  sheriff  of  the  coun- 
ty where  the  nonresident  defendants  may  be 
found  for  service.  In  an  action  commenced  in 
V.  county  against  two  physicians,  service  was 
made  on  one  of  the  defendants  in  K.  county, 
where  he  resided.  The  declaration  charged  de- 
fendants generally  with  negligence  in  perform- 
ing the  operation,  but  did  not  allege  any  particu- 
lar negligence  on  the  part  of  the  noq^esident 
defendant  after  the  operation  was  concluded. 
Held,  that  the  court  did  not  acquire  jurisdic- 
tion of  him;  any  cause  of  action  against  him 
being  several,  and  not  joint 

[Ed.  Note. — For  other  cases,  see  Process, 
Cent.  Dig.  I  70 ;   Dec.  Dig.  §  62.»] 

Error  to  Circuit  Court,  Van  Buren  County; 
L.  Burgett  Des  Volgnes,  Judge. 

Action  by  Bertha  K.  Brown  against 
Charles  L.  Bennett  and  another.  Judgment 
for  plaintiff,  and  defendants  bring  error. 
Reversed,  and  no  new  trial  granted. 

.The  action  is  trespass  on  the  case.  It  Is 
averred,'  in  substance  and  effect,  in  each  of 
the  four  counts  of  the  declaration  that  the 
defendants,  professing  to  be  skilled  physi- 
cians and  surgeons,  undertook  for  reasonable 
reward  to  be  paid  to  them  to  skillfully 
treat,  care  for,  and  to  perform  upon  the 
plaintiff  a  certain  operation,  and  that  they 
so  negligently,  unsklllfully,  and  carelessly 
performed  it  that  by  reason  thereof  the 
plaintiff  was  injured.  The  suit  was  begun 
by  summons.  Service  was  made  upon  de- 
fendant Bennett  in  Van  Buren  county,  and 
upon  defendant  Smith  in  Kent  county.  De- 
fendant Smith  pleaded  in  abatement  that  he 
was  not  a  resident  of  Van  Buren  county 
when  the  suit  was  begun,  nor  was  he  found 
or  served  with  process  in  that  county;  that, 
on  the  contrary,  he  was,  and  before  that 
time  continuously  had  been,  a  resident  of 
the  county  of  Kent,  and  the  summons  was 
served  upon  him  in  the  county  of  Kent;  that. 
If  any  right  of  action  existed  as  set  forth  In 
plaintiff's  declaration  against  him,  the  cir- 
cuit court  for  the  county  of  Kent  had  sole 
jurisdiction  thereof,  and  the  circuit  court 
for  Van  Buren  county  had  no  jurisdiction; 
that,  if  any  cause  of  action  existed,  it  was 
several,  and  not  joint;  that,  if  any  liability 
existed,  defendant  was  not  liable  Jointly 
with  defendant  Bennett;  and  that  no  such 
joint  liability  as  is  set  forth  In  the  declara- 
tion exists.  The  plea  was  verified,  there 
was  joinder,  and  It  was  stipulated  by  counsel 
for  each  of  the  parties  that  the  issue  raised 
by  the  plea  should  be  heard  and  determined 
with  the  Issues  raided  by  the  plea  of  the 
general  issue,  and  that  such  disposition 
should  not  be  construed  as  a  waiver  of  any 
rights  insisted  upon  in  said  plea,  but  that 
both  parties  should  have  the  same  rights  in 
all  respects  in  the  hearing  of  the  case  on  a 
motion  for  a  new  trial,  or  on  writ  of  error, 
as  though  the  issue  raised  by  the  plea  In 


abatement  had  been  heard  and  determined 
before  the  determination  of  the  issues  raised 
by  the  plea  of  the  general  Issue.  The  cause 
was  tried  in  November,  1907,  and  resulted  in 
a  verdict  for  the  plaintiff  against  both  de- 
fendants for  $025,  upon  which  verdict  there 
was  Judgment  The  court  was  requested 
to  direct  a  verdict  in  favor  of  each  of  the 
defendants,  and  also  requested  to  instruct 
the  jury  that  defendants  could'  not  be  held 
to  any  joint  liability  for  any  act  charged  In 
the  plaintiff's  declaration.  These  requests 
were  refused  and  exceptions  followed.  It  Is 
the  theory  of  the  plaintiff  that  defendants 
jointly  undertook  to  perform  the  operation; 
that  they,  or  one  of  them,  left  in  the  abdomi- 
nal cavity  one  of  the  gauze  pads  or  laparo- 
tomy sponges  used  in  performing  the  opera- 
tion; that  it  remained  there  for  10  months; 
that  this  was  negligence,  and  that  for  the  ef- 
fects of  such  negligence  both  defendants  are 
liable.  In  this  court  appellants  have  waived 
the  benefit  of  all  assignments  of  error  except 
those  involving  the  propositions  (1)  that 
there  was  no  evidence  of  joint  liability;  and 
(2)  that  each  was  entitled  to  a  peremptory 
instruction  in  his  favor  because  the  testi- 
mony wholly  failed  to  show  that  either  was 
negligent. 

Argued  before  MONTGOMERY,  OSTRAN- 
DER,  HOOKER,  MOORE,  and  BROOKE,  JJ. 

Butterfleld  &  Keeney  and  Thomas  J.  Cava- 
naugh,  for  appellants.  Russell  M.  Chase, 
for  appellee. 

OSTRANDER,  J.  (after  staUng  the  facts 
as  above).  We  do  not  find  in  the  record  any 
testimony  tending  to  prove  a  joint  undertalc- 
ing  of  the  defendants.  On  the  contrary,  up- 
on this  point  the  case  for  plaintiff  stated 
most  favorably  to  her  is  that  she  was  ad- 
vised by  her  physician,  Bennett,  who  hud 
treated  her  for  certain  disorders,  that  the 
remedy  for  her  ailment  was  a  surgical  op- 
eration. The  family  of  plaintiff.  Including 
her  husband,  knew  of  this  advice,  consented 
that  an  operation  should  be  performed,  and 
that  defendant  Bennett  should  select  and 
arrange  with  some  burgeon  to  perform  the 
operation.  They  were  told  that  Dr.  Smith 
had  been  selected;  that  a  trained  nurse 
would  be  selected  by  Dr.  Smith;  that  it  was 
proposed  that  there  should  be  present  Dr. 
Smith,  who  was  to  receive  $75,  and  Drs. 
Bennett,  Crosby,  and  Ransom,  who  were  to 
be  paid  $10  each.  The  husband  or  father  of 
plaintiff,  or  both,  agreed  to  procure  and 
did  procure  $100  and  gave  it  to  Dr.  Bennett, 
and  took  bis  receipt  therefor.  Afterwards 
they  paid  him  $5.  This  money  Dr.  Bennett 
distributed  as  above  indicated,  receiving  him- 
self $10.  The  husband  of  plaintiff,  or  some 
one  for  him,  also  paid  the  nurse.  Every 
one  understood  that  Dr.  Smith  would  per- 


•For  otber  caiei  lea  ume  toplo  and  lecUoa  NUMBER  in  Dae.  *  Am.  Digs.  1907  to  date,  *  Reirartar  IndezM 


Digitized  by  VjOOQ  l€ 


uictg 


GERO  V.  ABBOTT. 


307 


form  the  operation,  assisted  by  the  other 
phystcians.  There  Is  some  testimony  to  the 
effect  that  the  contract  made  not  by  plain- 
tiff,  but  by  her  husband  and  father,  was 
made  with  defendant  Bennett,  and  that  he 
was  to  see  that  the  operation  was  properly 
performed,  and  would  guarantee  a  cure. 
But  this  does  not  tend  to  prove  a  Joint  un- 
dertaking by  these  defendants  to  perform 
the  operation.  It  Is  said  In  the  brief  for 
plaintiff  that  "the  husband  of  plaintiff 
agreed  to  employ  Dr.  Bennett  and  Dr.  Smith 
to  perform  this  operation."  It  Is  the  not 
uncommon  case  of  a  practicing  physician  ad- 
Tlslng  a  patient  to  submit  to  a  surgical  op- 
eration to  be  performed,  not  by  himself,  but 
by  some  surgeon  of  reputation,  skill,  and 
experience,  for  which  operation,  with  the 
consent  of  his  patient,  he  makes  the  neces- 
sary arrangements,  in.performing  which  he 
assists  the  operating  surgeon  as  directed  or 
advised.  The  operation  was  not  performed  by 
these  defendants  Jointly. .  Dr.  Smith  perform- 
ed it,  as  his  owp  testimony  and  that  of  each 
of  the  physicians  and  of  the  nurse  conclusive- 
ly shows.  In  accordance  with  modem  meth- 
ods, the  operation  was  an  organized  per- 
formance Dr.  Crosby  administered  the  an- 
esthetic. That  was  his  duty  and  responsibil- 
ity. Drs.  Bennett  and  Ransom  assisted  the 
operating  surgeon.  "They  stood  with  me," 
Dr.  Smith  testified,  "at  the  side  of  the  pa- 
tient and  assisted  me  as  I  directed;  that  is, 
they  retracted  the  sides  of  the  wound  when 
it  was  open,  pulled  them  apart,  the  sides  of 
the  wound.  They  helped  in  regard  to  spong- 
ing up  blood,  and  perhaps  occasionally 
caught  a  spurting  vessel  when  it  was  cut, 
and  that  is  about  all  generally.  I  perform- 
ed the  operation.  The  duty  of  Dr.  Ransom 
was  practically  the  same  as  Dr.  Bennett" 
The  nurse  had  charge  of  the  sponges  before 
and  after  they  were  used,  and  counted  them 
before  and  after  the  operation.  That  was 
her  duty.  The  operating  surgeon,  having  in- 
serted the  large  sponges  or  pads,  and  having 
removed  all  of  them  in  the  immediate  field 
of  operation,  relied  upon  the  nurse  and 
her  assurances  that  all  sponges  were  ac- 
connted  for,  and  closed  the  wound.  Un- 
doubtedly each  case  of  this  nature  must 
stand  upon  Its  own  facts.  The  length  of 
time  required  to  perform  the  operatlqn,  the 
nature  of  the  operation  itself,  as  whether 
the  field  is  deep  in  the  abdomen,  the  numbei 
of  pads  or  sponges  used  to  keep  the  field  of 
operation  clear,  the  opportunity  or  chance 
for  one  or  more  of  the  pads  to  be  displaced, 
rolled  upon  itself,  and  hidden,  all  of  these 
and  other  considerations  measure  the  requir- 
ed skUi  and  care  of  the  surgeon.  It  must  be 
considered  as  established  in  this  case  that 
a  sponge  or  pad  was  left  in  the  abdomen, 
and  that  an  injury  to  plaintiff,  was  the  con- 
wqaence     It  is  not  claimed,  and  is  not  to 


be  supposed,  that  any  one  was  intentionally 
at  fault  Both  defendants  are  men  whos» 
general  professional  knowledge  and  skill  are 
unquestioned  and  undoubted.  They  were  not 
engaged  in  a  trespass.  Neither  was  employ- 
ed by  the  other.  Each  was  required  to  ex- 
ercise ordinary  skill  and  care.  But  dlrec 
tlon  and  control  of  the  operation  were  with 
one  man.  Whether  responsibility  for  what 
occurred  is  rested  upon  contract  or  upon 
negligent  performance  of  duty,  there  is  no 
rule  of  law  which  under  the  undisputed  facts 
Imputes  want  of  skill  or  care  on  the  part  of 
Dr.  Smith  to  Dr.  Bennett  The  Jury  should 
so  have  been  instructed. 

The  statute  (Comp.  Laws,  |  10,010;  Pub. 
Acts  1901,  p.  854,  No.  225)  provides  that 
where  an  action  of  trespass  on  the  case  shall 
be  brought  in  any  circuit  court  against  two 
or  more  defendants,  one  or  more  of  whom 
shall  not  reside  In  the  county  or  be  found 
therein,  and  service  of  the  process  shall  be 
made  In  such  county  upon  one  or  more  of 
such  defendants,  the  plaintiff  may  sue  out 
one  or  more  writs  directed  to  the  sheriff  of 
the  county  where  the  nonresident  defendants 
may  be  found,  and  it  shall  be  the  duty  of 
such  sheriff  to  serve  such  process  and  make 
return  to  the  court  issuing  the  same.  It  is 
by  virtue  of  this  statute  and  the  service  of 
process  pursuant  thereto  that  Jurisdiction  of 
the  court  over  defendant  Smith  Is  asserted. 
It  must  be  held  that  the  court  did  not  ac- 
quire Jurisdiction.  See  Rosenthal  v.  Rosen- 
thal et  al.,  134  Mich.  533,  118  N.  W.  la  It 
is  said  In  the  brief  for  plaintiff  that  the 
declaration  not  only  charges  defendants  with 
negligence  in  the  performance  of  the  opera- 
tion, but  also  charges  them  with  negligence 
in  the  treatment  of  plaintiff  at  the  time  of 
and  following  the  operation  and  her  treat- 
ment and  care  thereafter.  Words  of  this 
general  import  are  employed  in  the  declara- 
tion. But  neither  in  the  declaration  nor  in 
the  brief  are  we  advised  of  any  particular 
neglect  or  want  of  care  after  the  operation 
was  concluded.  What  duty  defendant  Smith 
owed  to  plaintiff  after  performing  the  opera- 
tion is  not  apparent. 

The  conclusions  which  have  been  stated  re- 
quire a  reversal  of  the  Judgment,  and  no 
new  trial. 


GERO   V.    ABBOTT. 

(Supreme  Court  of  Michigan.    July  15,  1909.) 

Husband    and    Wifb    (|    25*)— Agency    of 
Husband  fob  Wife— Evidence. 

Evidence  that  a  husband  buying  an  auto- 
mobile told  the  seller  at  the  time  of  the  pur- 
chase that  he  proposed  to  give  it  to  bis  wife  a» 
a  present,  that  the  receipted  statement  of  sale 
stated  that  the  wife  was  the  debtor  of  the  seller 
for  the  automobile,  and  that  the  wife,  to  the 
seller's  knowledge,  knew  of  the  transaction,  did 


*FoT  otbar  ewM  se*  same  toplo  and  secUon  NUMBER  In  D«o.  *  Am.  Diss.  1M7  to  dat*.  *  Reporter  Index** 


Digitized  by 


L-oogle 


308 


122  NORTHWESTERN  REPORTER. 


OUcb. 


not  show  that  the  «ale  was  to  the  wife  throngh 
the  husband  as  agent. 

[Ed.  Note.— Foi  other  caaes,  see  Hasband  and 
Wife,  Dec.  Dig.  ^  25.*] 

McAiray,  Moore,  and  Broolce,  JJ.,  dissenting. 

Error  to  Circuit  Ck>tirt,  Chippewa  County; 
Joseph  H.  Steere,  Judg& 

Action  by  Benjamin  Oero  against  Jennie 
li.  Abbott  There  was  a  judgment  for  plain- 
tiff, and  defendant  brings  error.  Beversed, 
without  grant  of  a  new  trial. 

Argued  before  BLAIB,  C.  J.,  and  GRANT, 
MONTGOMERY,  OSTBANDBR,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ, 

Warner  &  SuUlran,  for  appellant  h.  C. 
Holden,  for  appellee. 

McAIiVAY,  J.  This  case  involves  the  sale 
of  an  automobile  claimed  by  plaintiff  to  have 
been  made  by  him  to  defendant  through  her 
husband.  It  is  an  action  In  assumpsit  com- 
menced by  attachment  against  defendant  and 
Samuel  G.  Abbott  Plaintiff  later  dlscontiii- 
ued  as  to  Samuel  G.  AbtMtt,  and  declared 
against  defendant  This  case  was  tried  be- 
fore the  court  without  a  Jury,  and,  upon  re- 
quest of  defendant  the  court  filed  findings  of 
fact  and  his  conclusions  of  law,  ordering  a 
judgment  to  be  entered  in  favor  of  plaintiff 
for  the  purchase  price  of  the  automobile.  To 
these  findings  of  fact  and  conclusions  of  law 
defendant  proposed  amendments.  Upon  due 
considerfttion  the  court  amended  the  findings 
of  fact  but  refused  to  amend  the  conclusions 
of  law  upon  which  judgment  was  rendered. 
The  amended  findings  of  fact  and  the  conclu- 
sions of  law  are  as  follows: 

"Amended  Findings. 
"The  findings  heretofore  filed  herein  are 
hereby  amended  to  read  as  follows: 

"Facts, 

"(1)  This  Is  a  suit  in  assumpsit  brought  to 
recover  the  value  of  an  automobile  claimed 
to  have  been  sold  by  plaintiff  to  defendant 
through  her  husband,  acting  as  her  agent 

"(2)  Plaintiff  was  and  Is  a  resident  of  Man- 
istlque,  and  defendant  was  and  Is  a  resident 
of  Sault  Ste.  Marie,  residing  at  said  place 
with  her  husband. 

"(3)  In  the  early  spring  of  1&36,  March  or 
April,  S.  O.  Abbott  defendant's  husband,  who 
was  engaged  in  the  sale  of  mining  stock,  vis- 
ited Manlstique  for  the  purpose  of  selling 
stock  In  the  Cobalt  Sliver  &  Copper  Mining 
Company,  Limited,  of  Ontario.  He  had  a  let- 
ter of  Introduction  to  plaintiff  from  George  V. 
McCallum,  a  mutual  acquaintance,  who  was 
also  interested  In  the  mining  company,  and 
was  its  secretary  and  treasurer.  Abbott  suc- 
ceeded In  getting  plaintiff  interested  in  the 
mine,  selling  him  2,000  shares  of  stock  at  50 
cents  per  share;  the  par  value  being  $1  per 
share.  There  were  also  negotiations  between 
the  parties  looking  to  plaintifTs  assisting  Ab- 


bott in  selling  the  stock  nnder  an  arrange* 
ment  for  appointing  special  agents  for  its 
sale  In  various  cities  in  the  upper  peninsula 
of  Michigan,  and  elsewhere,  and  it  was  pro- 
posed that  they  divide  the  commission. 

"(4)  Plaintiff  was  a  business  man,  located 
at  Manlstique,  Interested  In  the  electric  light 
and  hardware  business,  and,  amongst  other 
things,  in  selling  Oldsmobiles ;  he  having  sev- 
eral on  hand.  Including  a  new  touring  car 
which  he  bad  recently  purchased,  costing  hina 
$2,000  wholesale. 

"(5)  Abbott  and  plaintiff  in  the  progress  of 
their  interviews,  amongst  other  things,  nego- 
tiated a  trade  of  this  large  touring  car  for 
stock  In  the  Cobalt  Sliver  &  Copper  Mining 
Company,  Limited.  The  price  of  the  car  at 
retail,  with  extension  top,  was  $2,375,  and  It 
was  agreed  between  plaintiff  and  Abbott  to 
exchange  this  car  with  the  top  for  5,250 
shares  of  stock  in  the  mining  company;  Ab- 
bott telling  plaintiff  he  was  buying  the  ma- 
chine for  his  wife.  These  negotiations  were 
begun  in  the  spring  of  1906,  on  Abbott's  first 
visit  to  Manlstique,  and  were  consummated 
in  October,  1906,  at  a  time  when  Abbott 
again  visited  Manlstique  accompanied  by  his 
wife,  the  defendant  in  this  case. 

"(6)  Abbott  informed  plaintiff  that  the 
stock  he  was  to  exchange  for  the  machine 
was  not  available,  being  then  in  the  hands  of 
the  treasurer  of  the  company  at  Sault  Sta 
Marie  under  a  pooling  agreement,  and  be 
could  not  get  it  until  the  following  May, 
when  he  would  procure  the  same  and  deliver 
it  to  plaintiff. 

"(7)  When  the  deal  was  consummated  in 
October,  1906,  Abbott  Instructed  plaintiff  to 
make  out  the  bill  of  It  to  his  wife,  the  de- 
fendant in  this  case,  stating  lie  was  buying 
the  car  for  her,  instructed  him  to  deliver  it 
to  her  at  Sanlt  Ste.  Marie,  and  to  send  a  man 
with  it  to  Instruct  her  in  running  it  when 
delivered.  She  was  In  Manlstique  at  that 
time  with  her  husband,  and  was  cognizant 
of  the  transaction.  She  was  told  by  ber  hus- 
band. In  plalntlfTs  presence,  tliat  he  bad 
bought  this  ante  from  Mr.  Gero  for  her,  and 
had  traded  him  mining  stock  fbr  It  She 
asked  If  Mr.  Oero  had  got  his  stock,  and  ber 
husband  said  'No' ;  it  was  in  a  pool  now.  She 
acquiesced  in  what  bad  been  done,  and  re- 
ceived from  the  plaintiff  the  following  paper: 

'"Benjamin  Gero,  agent  for  Oldsmobiles, 
Manlstique,  Mich.    October  1,  06. 

Mrs.  S.  G.  Abbott,  Sanlt  Ste.  Marie,  to  Ben- 
jamin Gero,  Dr. 
To  Model  S.  Palace  Touring  Car. ...  |2,250  00 
To  one  extension  top 125  00 

¥2,376  00 

"  'Received  payment  Benjamin  Gero.' 
"Her  husband  gave  to  plaintiff  the  follow- 
ing paper:  'October  1st  1906.  I  hereby  sell 
to  Benjamin  Gero  and  authorize  the  Cobalt 
Silver  and  Copper  Mining  Company,  Ltd.  to 
transfer  on  their  books  five  thousand  two 


•For  other  caaes  gee  uune  topic  and  lecUon  NUMBER  In  Dec  *  Am.  Dig*.  1!H)7  to  date,  *  Reporter  IndazM 


Digitized  by  LjOOQ  l€ 


MlchJ 


6EBO  T.  ABBOTT. 


809 


hundred  fifty  shares  (6,250)  of  my  stock.  8. 
G.  Abbott' 

"(8)  On  the  Sd  of  October,  1906,  plaintiff 
showed  the  document  he  had  received  from 
Abbott  respecting  the  sale  of  this  stock  to 
George  P.  McCallum,  treasurer  of  the  mining 
company,  at  Milwaukee,  Wis.,  and  inquired 
If  he  would  honor  a  transfer  of  the  stock 
from  Abbott  Mr.  McCallum  told  him  he 
would  not,  but  that  after  May  Ist  the  pooling 
agreement  would  expire.  Abbott  did  not  re- 
turn bis  pooling  receipt  to  the  treasurer,  and 
did  not  ask  for  his  stock.  Neither  did  plain- 
tiff present  the  agreement  to  the  treasurer  or 
demand  his  stock  at  any  time  afterwards. 

"(8)  In  July,  1907,  this  stock  was  seized  in 
Canada  by  the  sheriff  of  a  Canadian  court 
under  some  writ  from  said  court  issued  in 
proceedings  against  Abbott,  and  afterwards 
sold  on  July  27,  1907,  for  the  sum  of  |8. 

"(10)  Plaintiff  previously  delivered  the  car 
to  Mrs.  Abbott  at  Sault  Ste.  Marie,  and  sent 
a  man  to  instruct  her  to  operate  It,  and  on 
August  6,  1907,  after  the  seizure  and  sale  of 
the  stock  on  the  Canadian  writ,  plaintiff 
made  written  demand  on  S.  O.  Abbott  for  his 
stock. 

"(11)  Learning  later  of  the  fate  of  this 
stock  which  he  was  to  receive,  and  being  un- 
able to  get  pay  for  the  car,  having  in  the 
meantime  heard  that  defendant  had  made  a 
bill  of  sale  of  It  to  some  one  else,  plaintiff  l>e- 
gan  suit  by  writ  of  attachment  against  S.  O. 
Abbott  and  defendant  Jointly.  He  later  dis- 
continued the  proceedings  against  Abbott, 
and  declared  against  the  defendant  herein 
individually. 

"(12)  All  files  and  records  and  exhibits  are 
hereby  made  a  part  of  tbese  findinga" 

The  conclusions  of  law  already  filed  were 
ordered  to  stand  without  amendment 

"Conclusions  of  Law. 

"The  touring  car  was  purcl^ased  from 
plaintiff  by  defoidant  through  ber  husband 
acting  as  her  agent  This  is  not  a  case  where 
property  was  purchased  by  one  and  ordered 
deltvered  as  a  present  to  another,  who  was 
ignorant  of  the  details  of  the  transaction,  and 
never  authorized  or  ratified  the  deal.  She 
knew  the  price  at  which  it  was  sold,  received 
the  bill,  accepted  title  to  the  property,  as  well 
as  sabsequent  delivery  of  same,  ratifying  her 
husband's  agency  in  every  particular,  and  ac- 
cepting the  benefits  of  the  transactions  with 
full  knowledge.  The  title  passed  from  plain- 
tiff to  ber.  This  would  be  true  under  the 
facts  In  the  case  at  bar  even  if  her  husband 
had  paid  the  price  at  the  time.  'Where  A., 
with  B.'B,  assent  boys  goods  (in  his  own 
name)  for  B.,  but  pays  the  price  out  of  his 
own  money,  the  property  will  vest  in  him, 
and  will  not  be  divested,  though  a  bill  of  sale 
be  afterwards  executed  (by  the  vendor)  to 
B. :  but  if  the  bill  of  sale  had  been  so  eze- 
cnted  at  the  time  of  the  sale  to  B.,  the  prop- 
erty In  the  goods  would  have  vested  In 
blm.'    12  Modern  Report  344.    At  the  in- 


stance of  her  husband,  with  her  knowledge 
and  approval,  the  sale  was  made  to  her,  the 
title  was  passed  to  her,  and  the  delivery  of> 
the  article  was  also  made  to  her.  She  receiv- 
ed and  accepted  the  benefit  of  It.  Manifest- 
ly it  was  the  understanding  and  expectation 
that  her  husband  would  pay  for  it  and  make 
her  a  present,  not  of  the  car,  for  she  already 
had  title  to  that,  but  of  the  purchase  price. 
The  expectation  that  another  will  pay  for  an 
article  does  not  relieve  the  actual  purchaser 
from  that  obligation.  Judgment  will  be  en- 
tered In  favor  of  plaintiff  -for  the  purchase 
price  of  the  touring  car." 

Defendants  excepted  to  these  findings  and 
conclusions,  and  have  assigned  errors  there- 
on, and  also  upon  rulings  of  the  court  on  evi- 
dence. In  the  brief  filed  two  propositions 
are  relied  upon:  (1)  That  the  testimony  of 
plaintiff  concerning  statements  of  the  hus- 
band were  not  admissible  to  establish  agency 
without  further  proof.  (2)  That  the  essential 
findings  of  fact  and  conclusions  of  law  were 
not  warranted  by  the  evidence.  We  find 
from  the  record,  which-  is  certified  to  contain 
all  the  evidence  in  the  case,  that  there  was 
other  evidence  In  the  case  of  the  husband's 
agency  besides  plaintiff's  testimony  as  to  the 
husband's  statement  as  appears  from  defend- 
ant's testimony,  also  from  the  receipted  bill 
in  her  name  received  by  her,  and  the  transfer 
of  stocks  from  the  husband  to  the  plaintiff, 
both  made  on  the  date  when  she  was  present 
with  her  husband  and  plaintiff,  and  the 
transaction  was  rehearsed  In  her  presence, 
and,  as  she  testifies,  "The  final  deal  for  this 
automobile  was  concluded."  It  is  not  neces- 
sary to  quote  from  the  record.  The  fact  up- 
on this  question  as  found  by  the  court  Is 
supported  by  evldeace.  It  was  not  error  to 
refuse  defendant's  motion  to  strike  out  plain- 
tiff's testimony,  and  to  refuse  to  find  for  de- 
fendant as  requested.  The  rule  is  so  well 
settled  that  the  findings  of  fact  are  conclu- 
sive where  supported  by  any  evidence  that 
the  citation  of  cases  is  unnecessary.  An  ex- 
amination of  all  the  evidence  in  the  record 
shows  that  all  the  facts  found  by  the  court 
were  supported  by  evidence,  and  that  the  con- 
clusions of  law  are  warranted  by  such  find- 
ings. 

We  find  no  errors  in  the  case.  The  judg- 
ment should  be  affirmed. 

MOORE  and  BROOKE,  JJ.,  concurred  with 
McALVAY,  J. 

OSTRANDER,  J.  It  seems  to  me  that 
the  testimony,  all  of  which  appears  In  the 
bill  of  exceptions,  tends  to  establish  one 
fact,  which  Is  that  defendant's  husband  pur- 
chased from  the  plaintiff  an  automobile  In 
his  own  behalf  upon  his  own  credit  There 
was  no  testimony  tending  to  prove  that  in 
purchasing  the  automobile  he  was  acting  as 
agent  for  his  wife.  The  fact  that  he  told  the 
vendor  he  proposed  to  give  the  automobile 


Digitized  by  VjOOQ  l€ 


310 


122  NORTHWESTERN  REPORTER. 


(Mlnn- 


to  his  wife  as  a  present  has  no  probative 
force  In  establishing  agency.  The  fact  that 
at  the  request  of  the  husband  a  statement 
was  made  on  a  billhead  used  by  plaintiff, 
reading,  "Mrs.  S.  G.  Abbott  •  •  •  to 
Benjamin  Oero,  Dr.,"  etc.,  is  not  significant 
of  agency  in  view  of  the  further  fact  that  the 
bill  was  receipted  by  the  plaintiff.  The  fact 
that  the  wife  to  the  vendor's  knowledge  knew 
of  the  transaction  Is,  in  view  of  other  testi- 
mony, conclusive  of  the  other  fact  that  plain- 
tiff sold  the  machine  to  the  husband,  and  not 
to  the  wife,  and -not  to  the  husband  for  the 
wife. 

The  Judgment  should  lie  reversed,  and  no 
new  trial  granted. 

BLAIR,  C.  J.,  and  GRANT,  MONTGOM- 
ERY, and  HOOKER,  JJ.,  concurred  with  OS- 
TRANDER,  J. 


WOODWORTH  ELEVATOR  CO.  r.  THEIS 

.  et  al. 
(Supreme  Court  of  Minnesota.    July  23,  1909.) 

TbOVEB  and  CONVEBSION   (I  66*)— SUTFIOIEN- 
OT   OF    EVIDENOX. 

Evidence  considered,  and  held,  that  It  was 
BuflScient  to  require  the  submission  of  the  case 
to  the  jury. 

[Ed.  Note.— For  other  cases,  see  Trover  and 
Conversion,  Cent  Dig.  {{  28S-291;  Dec.  Dig. 
I  66.*] 

(Syllabus  by  the  0>urt) 

Appeal  from  District  Court,  Otter  Tall 
County ;  h.  L.  Baxter,  Judge. 

Action  by  the  Woodworth  Elevator  Com- 
pany against  F.  A.  Thels  and  others.  The 
action  was  dismissed,  and  from  an  order  de- 
nying its  motion  for  a  new  trial,  plaintiff  ap- 
peals.   Reversed. 

How,  Butler  &  Mitchell  and  Geo.  Hoke,  for 
appellant  Gunderson  &  Leach,  for  respond- 
ents. 

START,  0.  J.  Appeal  by  the  plaintiff  from 
an  order  of  the  district  court  of  the  county 
of  Otter  Tall  denying  its  motion  for  a  new 
trial  In  an  action  for  the  conversion  of  a  car 
load  of  wbeat  The  only  issue  made  by  the 
pleadings  was  whether  the  defendants  con- 
verted the  wheat.  The  trial  court,  when  the 
plaintiff  rested  its  case,  dismissed  the  action 
on  defendants'  motion  on  the  ground  that 
plaintiff  had  failed  to  make  out  a  case. 

The  question  for  our  decision  Is  not  wheth- 
er the  evidence  is  sufficient  to  have  sustain- 
ed a  verdict  for  the  defendant  If  the  case 
bad  been  submitted  to  a  Jury  and  a  verdict 
found  In  their  favor.  The  question  is  wheth- 
er the  evidence  was  such  as  to  require  as  a 
matter  of  law  a  verdict  against  the  plaintiff. 
If  not,  the  case  should  have  been  submitted 
to  the  Jury.  Our  conclusion,  based  upon  a 
full  consideration  of  the  record.  Is  that  the 
case  should  have  been  submitted  to  the  Jury. 


There  was  no  direct  evidence  that  the  defend- 
ants, or  either  of  them,  converted  the  wbeat, 
and  the  agent  in  charge  of  the  defendants' 
elevator,  on  being  called  for  cross-ezamtna- 
tlon  by  the  plabitlff,  denied  that  he  ever  bad 
anything  to  do  with  plaintiff's  wheat  We 
are  of  the  opinion  that  the  credibility  of  this 
witness  was  a  question  for  the  Jury  under  the 
circumstances  disclosed  by  the  record.  Haw- 
kins V.  Sauby,  48  Minn.  69,  60  N.  W.  1015; 
State  V.  Halverson,  103  Minn.  265,  114  N.  W. 
957,  14  L.  R.  A.  (N.  S.)  947,  123  Am.  St  Rep. 
326. 

The  evidence  and  stipulations  of  the  par- 
tics  show  that  the  elevators  of  the  respec- 
tive parties  are  located  on  the  same  elevator 
track  of  the  Soo  Railway  at  Parker's  Prairie, 
this  state,  and  that  they  are  about  160  feet 
apart ;  that  on  the  evening  of  March  2,  1908, 
an  empty  car  was  standing  on  the  track  in 
front  of  the  defendant's  elevator,  and  that 
the  next  morning  It  was  standing  on  the 
track  directly  In  front  of  a  spent  of  plain- 
tiff's elevator,  loaded  with  wheat;  and,  far- 
ther, that  the  defendant  elevator  company  re- 
ceived the  wheat  in  the  car  and  applied  it 
to  Its  own  use.  There  was  also  evidence  tend- 
ing to  show  that  on  the  same  night  approxi- 
mately a  car  load  of  wheat  was  drawn  out 
of  one  of  the  bins  of  the  plaintiff's  elevator 
without  its  knowledge  or  authority.  The 
agent  in  charge  of  the  defendant's  elevator 
testified  that  the  car  in  question  was  loaded 
from  his  own  elevator;  but  there  was  evi- 
dence of  circumstances  as  to  his  conduct  and 
statements  proper  for  the  consideration  of 
the  Jury  in  connection  with  the  other  evi- 
dence. 

As  there  must  be  a  new  trial,  we  refrain 
from  discussing  the  evidence  or  expressing 
any  opinion  as  to  its  force,  except  to  state 
our  conclusion  that  It  was  sufficient  to  re- 
quire the  submission'  of  the  question  of  the 
conversion  of  the  wheat  by  the  defendants 
to  the  Jury. 

Order  reversed,  and  a  new  trial  granted. 


WTMAN  V.  PIKE  et  al. 
(Supreme  Court  of  Minnesota.    July  23,  1909.) 

Damages  (J  132*)— Personal  Injuries— Vkb- 

DicT  Not  Excessive. 

In  this,  a  personal  Injury  case,  it  is  held 
that  the  evidence  sustains  a  verdict  for  the 
plaintiff  for  $4,000  damages  on  account  of  in- 
juries to  his  head  caused  by  the  negligence  of 
the  defendants. 

[Ed.  Note.— For  other  cases,  see  Damages, 
Cent.  Dig.  {  374;    Dec.  Dig.  |  132.»] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Hennepin 
County;  Horace  D.  Dickinson,  Judge. 

Action  by  Otto  Wyman  against  Willard  C. 
Pike  and  another,  doing  business  as  Pike  & 
Cook.  Verdict  for  plaintiff.  From  an  order 
denying  their  motion  for  Judgment  notwitb- 


•For  other  caies  see  same  topic  and  secUon  NUMBER  In  Dec.  ft  Am.  Digs.  l$Ot.to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Ulnn.) 


WYMAN  T.  PIKB. 


811 


standing  the  Terdlct  or  for  a  new  trial,,  de- 
fendants appeal.    Affirmed. 

Brown,  Albert  &  Guesmer,  for  appellants. 
GJertsen  &  Lund,  for  respondent. 

START,  G.  J.  The  plaintiS  herein,  who 
was  48  years  old,  and  a  carpenter  'earning 
$3.40  per  day  prior  to  bis  injury,  was,  on 
November  8,  1008,  In  the  employ  of  the  de- 
fendants, who  were  then  engaged  as  builders 
and  contractors  in  the  construction  of  the 
Catholic  Procathedral  In  the  city  of  Min- 
neapolis. The  work  assigned  to  him  was  the 
making  and  repairing  of  wooden  forms  to  be 
used  In  placing  the  concrete.  Near  by,  the 
defendants  had  erected  and  were  operating 
a  wooden  derrick  for  the  hoisting  and  plac- 
ing of  concrete  material  by  means  of  a  buck- 
et, harlng  a  capacity  of  a  cubic  yard  of  con- 
crete, hung  from  the  boom  of  the  derrick 
and  carried  by  It,  when  loaded,  to  the  point 
where  the  concrete  was  to  be  used.  On  the 
day  named  the  plaintiff  was  engaged  in  put- 
ting some  braces  between  the  forms  Into 
which  concrete  was  to  be  poured.  The  buck- 
et, with  concrete  In  It,  was  being  swung  by 
the  boom,  when  the  derrick  broke  and  fell ; 
the  boom  striking  some  planks,  which  knock- 
ed the  plaintiff  down,  whereby  he  was  seri- 
ously injured.  This  action  was  brought  by 
the  plaintiff  in  the  district  court  of  the  coun- 
ty of  Hennepin  to  recover  damages  for  the 
injuries  so  sustained,  on  the  alleged  ground 
that  they  were  caused  by  the  defendants' 
negligence.  The  negligence  alleged  in  the 
complaint  was  to  the  effect  that  the  wood- 
work of  the  derrick,  especially  the  left  leg 
or  brace  thereof,  was  rotten,  out  of  repair, 
and  of  insufficient  strength,  which  caused  the 
derrick  to  fall,  whereby  the  plaintiff  was  in- 
jured. The  answer  denied  that  plaintiff's  In- 
juries were  caused  by  any  negligence  on  the 
part  of  the  defendants.  The  Issue  was  sub- 
mitted to  the  Jury,  and  a  verdict  returned 
for  the  plaintiff  for  $4,000.  Defendants  ap- 
pealed from  an  order  denying  their  alter- 
native motion  for  Judgment  or  a  new  atrial. 

The  record  presents  for  our  conaljieratlon 
only  the  question  whether  the  evidence  sus- 
tains the  verdict.  The  rule  "res  Ipsa  loqui- 
tur" does  not  apply  to  this  case,  and  the 
burden  was  upon  the  plaintiff  to  establish  the 
alleged  negligence  of  the  defendants  and  that 
It  was  the  proximate  cause  of  his  Injury. 
The  evidence  Is  amply  sufficient  to  establish 
the  tact  that  the  derrick  was  rotten  and  of 
insufficient  strength;  that  the  defendants 
might  have  ascertained  its  condition  by  the 
exercise  of  due  care;  and,  further,  that  they 
were  negligent  in  using  it  in  its  defective 
condition.  The  only  fairly  debatable  ques- 
tions arising  upon  the  evidence  relate  to  the 
cause  of  the  accident  and  the  amount  of  dam- 
ages awarded.  The  claim  of  the  defendants 
is  that  the  fall  of  the  derrick  and  the  result- 
ing injury  was  caused  by  overloading  the 
bucket  with  concrete  by  the  negligence  of  a 
fellow  servant,  contrary  to  the  orders  of  the 


defendants.  The  trial  court  submitted  the 
question  to  the  Jury,  with  the  express  direc- 
tion that,  if  they  found  that  the  fall  of  the 
derrick  was  caused  by  the  disobedience  of 
orders  as  to  the  filling  the  bucket  by  the  man 
who  was  loading  the  bucket,  then  their  ver- 
dict must  be  for  the  defendants.  The  verdict 
for  the  plaintiff  necessarily  includes  a  finding 
that  the  fall  of  the  derrick  was  not  caused 
by  overloading  the  bucket 

The  trial  Judge,  In  denying  the  motion  for 
a  new  trial,  approved  this  finding  as  sustain- 
ed by  the  evidence;  but  counsel  for  defend- 
ants claim  in  their  brief  that  it  appears  with- 
out dispute  that  at  the  time  of  the  accident 
the  bucket  was  loaded  to  Its  full  capacity, 
and  refer  us.  In  support  of  the  claim,  to  folios 
51, 173,  S64,  S72,  and  1053  of  the  record.  The 
first  and  fourth  relate  to  the  testimony  of 
August  Gustafson,  which  is  as  follows:  "Q. 
Do  you  know  how  much  it  would  carry — how 
much  concrete?  Was  it  a  large  or  small 
bucket?  A.  It  was  large.  Q.  A  large  buck- 
et? A.  Yes;  yes,  sir.  Q.  At  the  time  when 
the  derrick  broke  and  fell,  was  there  a  loaded 
bucket  on  the  arm?  A.  Yes.  *  •  •  Q. 
You  noticed  the  bucket  coming  around?  I 
say,  you  noticed  the  bucket  coming  around? 
A.  No ;  I  didn't  look  at  It  all  the  time.  Q.  I 
don't  mean  all  the  time.  You  saw  the  bucket 
stopped?  A.  Yes.  Q.  And  you  told  Mr. 
GJertsen  that  the  bucket  was  full  of  con- 
crete? A.  No;  I  haven't  said  anything  about 
that  Q.  I  understood  you  to  say  that  It  was 
full  of  concrete.  Mr.  GJertsen:  Olson  said 
it  was  full.  Mr.  Brown:  Well,  was  it  Ol- 
son? I  thought  he  was  the  man.  Mr.  Olson 
testified  that  it  was  full  of  concrete?  Mr. 
GJertsen:  They  all  said  It  was  loaded.  Mr. 
Brown:  But  Olson  said  It  was  full?  Mr. 
GJertsen:  Yes.  Mr.  Brown:  All  right  That 
is  all."  The  second  and  third  relate  to  the 
testimony  of  John  Olson,  which  was  this: 
"•  ♦  *  Q.  Now,  counsel  asked  you  in  re- 
gard to  the  weight  of  these  two  arms  when 
the  derrick  was  in  operation.  This  derrick, 
you  say,  came  with  a  loaded  bucket?  A. 
Yes,  sir.  •  •  •  Q.  At  the  time  when  the 
boom  fell,  the  bucket  was  loaded  with  con- 
crete? A.  Yes,  sir;  it  was.  Q.  As  I  under- 
stand you,  the  bucket  was  substantially  full 
of  concrete?  A.  It  was  off  a  ways.  I 
couldn't  say  substantially  full;  but  it's  al- 
wayl  full  when  I  see  it.  Q.  But  on  this  oc- 
casion it  was  full?  A:  Well,  I  couldn't  say. 
It  was  swinging,  and  I  was  quite  a  distance. 
But  standing  there,  you  could  see  It  loaded. 
As  a  general  rule.  It  was  always  full,  whefi  I 
observed  the  bucket. 

The  last  reference  has  no  relation  to  the 
condition  of  the  bucket  when  the  derrick 
fell,  but  to  the  order  given  by  one  of  defend- 
ants to  their  foreman  to  the  effect  that  the 
bucket  should  be  only  half  filled  with  con- 
crete. This  is  all  the  evidence  upon  which 
the  claim  Is  made  that  it  conclusively  ap- 
pears that  the  bucket  was  loaded  to  Its  full 
capacity.    The   fair   import  of   Gustafsou's 


Digitized  by  VjOOQ  l€ 


312 


122  NORTHWESTERN  RBPORIEH. 


(^inn. 


testimony  is  that  the  bucket  was  loaded  at 
the  time  of  the  accident— that  Is,  it  was  not 
empty — and  of  Olson  that  the  bucket  was 
loaded,  whether  It  was  full  at  the  time  he 
could  not  say,  but  as  a  general  rule,  when  he 
obserred  it,  the  backet  was  always  full.  It 
is  quite  apparent  that  counsel  for  plaintiff 
had  reference  to  this  testimony  when  be 
admitted  that  "Olsod  said  It  was."  It  is  ob- 
'Tlous  that  the  finding  of  the  Jury  tliat  the 
fall  of  the  derrick  was  not  caused  by  over* 
loading  the  bucket  is  n(yt  contrary  to  the  un- 
disputed evidence.  It  was  a  fair  question 
for  the  Jury  uiwn  the  evidence.  The  verdict, 
tlien,  eliminates  the  overloading  of  the  bucket 
as  a  cause  of  the  fall  of  the  derrick,  leaving 
only  the  question  whether  the  finding  of  the 
Jury  that  it  was  caused  by  its  rotten  condi- 
tion  and  insufficient  strength  Is  supported  by 
the  evidence.  The  claim  of  the  defendants  Is 
that.  If  the  overloading  the  bucket  be  elimi- 
nated, the  cause  of  the  fall  of  the  derrick  is 
left  by  the  evidence  a  mere  matter  of  conjec- 
ture and  speculation.  If  this  be  true,  the 
verdict  must  be  set  aside.  We  have  accord- 
ingly attentively  considered  the  record  with 
reference  to  this  claim,  and  have  reached  the 
conclusion  that  this  finding  of  the  Jury  is  also 
sustained  by  the  evidence. 

The  last  contention  of  the  defendants  Is 
that  the  damages  are  so  excessive  as  to  in- 
dicate that  they  were  given  under  the  in- 
fluence of  passion  or  prejudice.  The  evi- 
dence on  the  part  of  the  plaintiff  tends  to 
show  that  he  was  knocked  senseless  by  the 
blows  he  received  and  did  not  recover  con- 
sciousness until  after  he  was  taken  to  the 
hospital ;  that  he  was  then  bleeding  from  a 
wound  on  the  left  side  of  his  head  and  from 
one  on  the  front  of  his  head ;  the  skull  was 
not  fractured,  but  all  the  tissues  were  cut 
down  to  the  bone,  which  was  depressed;  he 
received  a  blow  on  the  left  eye,  and  a  severe 
one  back  of  his  left  ear  upon  the  mastoid 
process,  and  another  blow  over  bis  ribs  which 
rendered  it  difficult  for  him  to  breathe  and 
developed  pleurisy;  that  as  a  result  of  his 
injuries  his  nervous  system  has  been  serious- 
ly Impaired,  his  eyesight  Injured,  and  hearing 
impaired;  that  at  the  time  of  the  trial  he 
was  troubled  with  shooting  pains  through  his 
bead,  making  him  dizzy,  and  he  was  suffering 
from  a  general  nervous  breakdown,  which 
has  prevented  him  from  doing  any  work 
since  his  Injury ;  that  he  was  sound  mentally 
and  physically  before  his  injury,  and  earning 
$85  a  month ;  that  his  loss  of  wages  and  bills 
incurred  for  medical  attendance  up  to  the 
date  of  the  trial  aggregated  some  $1,700 ;  and, 
further,  that  the  chances  are  against  his  per- 
manent recovery  from  the  results  of  the  in- 
Jury  to  his  bead.  On  the  other  hand,  there 
was  evidence  on  the  part  of  the  defendants 
tending  to  show  that  the  plalntlfTs  injuries 
were  not  permanent,  nor  specially  serious, 
which  Is  made  the  basis  of  a  claim  that  he 


was  malingering.  We  are  of  the  opinion 
tliat  the  award  of  damages  Is  not  excessive^ 
and  that  it  is  fairly  sustained  by  the  evi- 
dence, taking,  as  we  must,  the  most  favorable 
view  of  It  for  the  plaintiff. 
Order  affirmed. 


HORTON    ▼.    CROWLEY    ELECTRIC    CO. 
et  al. 

(Supreme  Court  of  Minnesota.    July  23,  1909.) 

Hdnicifai,    Gobpobations    ft    847*)  — Cow- 
TBACTOB'a  BoRi>— Pdbuo  Wobk— Suboon- 

TBAOTOB. 

Laws  1895,  pp.  757,  758,  c.  354,  H  1,  4. 
relating  to  bonds  of  contractors  for  public 
works,  as  amended  (Laws  1897,  pp.  566,  567,  c. 
307,  II  1,  2;  Laws  1901,  p.  635,  c.  321,  |  1), 
construed. 

Beld,  that  one  who  furnishes  materials  and 
labor  in  the  performance  of  a  contract  for  any 
public  worlu  as  a  subcontractor,  pursuant  to  a 
contract  between  him  and  the  original  contiact- 
or  therefor,  is  entitled  to  the  benefit  of  the  oon- 
tractor's  bond  required  by  the  statute. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  |  877;  Dec.  Dig.  | 
347.»] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Folk  County ; 
William  Watts,  Judge. 

Action  by  Horace  TSi.  Horton,  trading  under 
the  name  of  the  Chicago  Bridge  &  Iron 
Works,  against  the  Crowley  Electric  Com- 
pany, the  Empire  State  Surety  Company 
of  New  York,  and  others.  The  trial  court 
as  a  conclusion  of  law  directed  Judgment 
for  plaintiff,  and  the  surety  company  ap- 
peals from  an  order  denying  its  alternative 
motion  to  amend  the  conclusions  of  law  or 
for  a  new  trial.    Affirmed. 

M.  H.  Bontelle  and  N.  H.  Chase,  for  ap- 
pellant   W.  B.  Rowe^  for  respondent 

START,  C.  J.  The  short  facts  of  this 
case  are  these:  The  defendant  Crowley  Elec- 
tric Company,  in  May,  1905,  entered  into 
a  contract  with  the  village  of  Bagley  for 
the  construction  of  a  system  of  waterworks 
for  the  village.  The  contract  price  was  $5,- 
868,  and  the  electric  company,  as  principal, 
and  the  defendant  surety  company,  as  surety, 
executed  a  bond  in  that  sum  to  the  village 
as  required  by  statute  then  in  force.  The 
plaintiff  furnished  the  materials  and  labor 
and  erected  the  steel  frame  of  a  tower,  which 
was  a  part  of  such  system,  for  which  the  elec- 
tric company  promised  to  pay  him  the  sum 
of  $1,850,  the  reasonable  value  thereof,  no 
part  of  which  has  ever  been  paid.  Such  ma- 
terials and  labor  were  furnished  by  the  plain- 
tiff, as  a  subcontractor,  under  a  contract 
between  him  and  the  electric  company  there- 
for. This  action  was  brought  In  the  district 
court  of  the  county  of  Polk  to  recover  of  the 
surety  company  on  its  bond  the  value  of  the 
materials  and  labor  so  furnished  In  the  per- 


•For  other  cm«  sm  tame  topic  and  lectlon  NUMBuR  In  Dec.  A  Am.  Dlgi.  1M7  to  date,  *  Beportor  ladaxM 


Digitized  by  VjOOQ  l€ 


Minn.) 


HORTON  T.  OBOWLBT  BLEOTRIO  00, 


813 


formance  of  the  contract  by  the  plaintiff. 
The  trial  court  found  In  detail  the  facts  we 
bare  briefly  Indicated,  and  as  a  conclusion 
of  law  directed  judgment  for  the  plaintiff 
against  the  surety  coinpany,  who  appealed 
from  an  order  denying  its  alternative  motion 
to  amend  the  conclnslon  of  law  or  for  a  new 
triaL 

This  appeal  is,  in  legal  effect,  one  from 
an  order  denying  a  motion  for  a  new  trial. 
NlkannlB  Go.  t.  City  of  Dulutb  (Minn.)  121 
N.  W.  212 ;  Wolf  ▼.  State  Board  of  Medical 
Examiners  (Minn.)  121  N.  W.  895.  The  rec- 
ord presents  only  the  question  whether  the 
trial  court's  conclnslon  of  law  is  justified  by 
the  facts  found;  or,  to  state  It  concretely, 
whether  one  who  famishes  materials  and 
labor  In  the  performance  of  a  contract  for 
a  public  work  as  a  subcontractor,  pursuant 
to  a  contract  between  him  and  the  contractor 
for  the  whole  thereof ,  is  within  the  protection 
and  benefit  of  the  statute  providing  for  bonds 
by  contractors  for  public  works.  The  statu- 
tory provisions,  in  force  when  this  action 
bad  Its  inception,  relevant  to  this  question, 
are  sections  1  and  4,  c.  354,  pp.  757,  750,  Laws 
1895,  as  amended  by  sections  1,  2,  c.  307,  pp. 
566,  667,  Laws  1897,  and  section  1,  c.  821, 
p.  535,  I.aw8  1901. 

The  here  material  provisions  of  section  1 
are  to  the  effect  following :  Before  any  con- 
tract for  the  construction,  alteration,  or  re- 
pair of  any  public  works  shall  be  valid  for 
any  purpose,  the  contractor  shall  enter  into 
a  bond,  with  the  municipality  for  which  the 
work  is  to  be  done,  "for  the  use  of  the  same, 
and  also  for  the  use  of  all  persons  who  may 
perform  any  work  or  labor  or  furnish  any  skill 
or  material  In  the  execution  of  such  contract, 
conditioned  to  pay  as  they  become  due  all 
Jnst  claims  for  all  work  and  labor  perform- 
ed, and  all  skill  and  material  furnished  in 
the  execution  of  such  contract,  and  also  to 
save  the  obligee  named  In  such  bond  harmless 
from  any  cost,  charge  and  expense  that  may 
accrue  on  account  of  the  doing  of  the  work 
specified  in  such  contract."  The  bond  must 
be  in  an  amount  not  less  than  the  contract 
prices  The  provisions  of  section  4  are  to 
the  effect  that:  Whoever  performs  any  work 
or  furnishes  any  material  in  the  execution 
of  SQch  contract  at  the  request  of  the  con- 
tractor or  subcontractor,  or  tbelr  respective 
agents,  heirs,  personal  representatives  or 
assigns,  shall  be  considered  a  party  In  inter- 
est in  the  lM>nd  and  may  bring  an  action 
thereon  for  the  reasonable  value  or  agreed 
price  of  such  material  furnished  and  labor 
performed  In  the  execution  of  such  contract 

The  claim  of  the  surety  company  is  that 
the  plaintiff  is  not  within  the  statutory  pro- 
visions referred  to,  because  the  materials 
and  labor  furnished  by  him  In  the  execution 
of  the  work  were  furnished  by  him  as  a  sab- 
Gootractor  under  a  contract  between  him  and 
the  electric  comjMiny,  the  contractor.  This 
dalm  necessarily  Implies  that  the  statute  can- 
not reasonably  be  construed  so  as  to  Include 


such  a  snbcontractor  In  the  list  of  those 
entitled  to  the  benefit  of  the  bond.  Avery  v. 
Ionia  Co.,  71  Mich.  638,  89  N.  W.  742,  which 
was  followed  in  People  v.  Cotteral,  119  Mich. 
27,  77  N.  W.  812,  construing  a  somewhat  simi- 
lar statute,  and  holding  that  It  was  for  the 
benefit  of  laborera  and  materialmen,  and  not 
subcontractors,  is  cited  in  support  of  this 
claim.  The  statute  construed  in  the  case 
cited  provided  that  the  condition  of  the 
bond  should  be  "for  the  payment  by  the  con- 
tractor and  all  subcontractors  for  the  labor 
performed  or  the  materials  furnished";  that 
is,  contractors  and  subcontractors  were  ex- 
pressly placed  in  the  same  clastf  by  the  stat- 
ute. It  would  seem,  then,  that  the  case 
cited  was  correctly  decided,  but  that  it  is  not 
here  In  point.  However  this  may  be,  we  can- 
not construe  the  statutory  provisions  here  In 
question  as  claimed  by  counsel  for  the  appel- 
lant. 

The  argument  in  support  of  the  construc- 
tion claimed  is  summarized  in  their  brief  as 
follows:  "No  right  of  action  upon  the  bond 
thus  furnished  Inures  to  the  benefit  of  the 
contractor,  who  is  supposed  to  look  to  the  mu- 
nicipality for  his  pay  and  to  be  amply  se- 
cured, ui)on  the  theory  that  all  munlclpalltlee 
are  solvent.  No  right  of  action  on  the  bond 
accruing  In  favor  of  the  contractor,  It  Is 
difficult  to  see  how  a  subcontractor,  or  as- 
signee of  the  principal  contractor,  could  pos- 
sess any  higher  or  greater  rights  or  privi- 
leges. If  such  was  the  case,  the  principal 
contractor  could  sublet  the  entire  contract 
to  a  subcontractor,  who,  by  bringing  action 
upon  the  bond,  would  not  only  subvert  the 
sole  purpose  and  intent  of  the  statute,  but, 
under  a  set  of  facts  easily  supposable,  render 
the  act  absolutely  .unavailable  for  the  very 
purposes  for  which  It  was  enacted." 

It  is  true  that  no  right  of  action  inures 
to  the  benefit  of  the  contractor,  for  he  Is 
the  obligor  in  the  bond.  It  would  be  absurd 
to  require  a  man  to  give  a  bond  to  pay  him- 
self for  materials  and  lalwr  furnished  by 
him.  Nor  is  there  any  necessity  for  any  pro- 
vision in  the  law  to  secure  him,  for  If  he  per- 
forms ills  contract  all  the  taxable  property 
of  the  municipality  is  pledged  for  the  pay- 
ment of  the  contract  price.  But  It  does  not 
follow,  from  this  concession,  that  one  who 
furnishes  materials  and  labor  in  the  per- 
formance of  the  contract  as  a  subcontractor, 
under  a  contract  between  him  and  the  con- 
tractor, is  excluded  from  the  benefits  of  the 
bond ;  for  he  is  not  one  of  the  obligors  there- 
of, nor  has  he  any  contractual  relations 
with  the  municipality,  nor  any  lien  for  his 
labor  and  materials,  nor  any  claim  upon  the 
municipality  for  their  payment.  If  the  ma- 
terials and  labor  In  this  case  had  been  fur- 
nished upon  the  simple  request  of  the  con- 
tractor, there  could  be  no  question  that  he 
was  not  within  the  letter  and  spirit  of  the 
statute;  and  it  is  difficult  to  suggest  any 
good  reason  why  he  should  be  excluded  from 
the  benefits  of  the  t>ond  because  the  contract 


Digitized  by  VjOOQ  l€ 


314 


122  NORTHWESTERN  REPORTER. 


(Minn. 


under  which  they  were  furnished  was  an  ex- 
press one,  Instead  of  an  Implied  one. 

It  is  suggested  that  the  contractor  might 
sublet  the  entire  contract,  and  the  subcon- 
tractor, by  bringing  an  action  on  the  bond, 
could  subvert  the  purpose  of  the  statute.  It 
Is  not  suggested  how  such  a  result  could  rea- 
sonably follow.  If  the  entire  contract  was 
sublet,  then  the  contractor  would  not  furnish 
any  labor  or  material  for  the  execution  of 
the  contract,  and  there  could  be  in  such  a 
case  no  claimants  to  an  Interest  in  the  bond 
by  reason  of  an  act  of  the  contractor.  The 
only  claimants  in  such  a  case  would  be  those 
who  furnished  materials  and  labor  at  the 
request  of  the  subcontractor.  If  the  subcon- 
tractor did  not  pay  such  claimants,  they 
would 'be,  by  the  express  provisions  of  the 
statute,  protected  by  the  bond.  If  the  con- 
tractor sublet  the  entire  contract,  and  It 
was  entirely  completed  by  the  subcontractor, 
who  paid  in  full  for  all  materials  and  labor, 
and  the  contractor  collected  the  contract 
price  from  the  municipality,  but  failed  to  pay 
the  subcontractor,  would  it  not  subvert  the 
purposes  of  the  statute  to  deny  him  the  bene- 
fit of  the  bond?  Can  such  benefit  be  denied 
hlui  without  amending  the  statute  by  con- 
struing It  so  as  to  except  subcontractors  from 
Its  positive  and  unambiguous  provision  that 
the  bond  shall  be  for  the  use  of  all  per- 
sons who  may  furnish  materials  or  labor  in 
the  execution  of  the  contract?  The  provi- 
sions of  sections  1  and  4  must  be  construed 
together,  and  liberally;  for  they  are  all 
found  In  the  same  remedial  statute,  the  pur- 
pose of  which  is  the  protection  of  those  who 
furnish  materials  and  labor  in  the  execution 
of  a  contract  for  public  works,  to  which  the 
mechanic's  lien  law  does  not  apply.  Wilcox 
Lumber  Co.  v.  School  District,  103  Minn.  43, 
114  N.  W.  262. 

Clearly  a  subcontractor  is  within  the  let- 
ter, spirit,  and  purpose  of  the  provisions  of 
section  1;  for  he  furnishes  labor  and  ma- 
terial, or  both,  for  the  execution  of  the  con- 
tract at  the  request  of  the  contractor.  We 
find  no  trouble  in  so  construing  the  statute; 
for  section  1  exi^ressly  provides  that  the  bond 
shall  be  for  the  use  of  all  persons  who  may 
perform  work  or  furnish  material  in  the  ex- 
ecution of  the  contract,  and  that  the  condi- 
tion of  the  bond  shall  be  the  payment  of  all 
Just  claims  as  they  become  due  for  such  ma- 
terials and  work.  This  language  is  so  clear 
and  specific  that  there  la  no  room  for  con- 
struction. 

It  Is  obvious  that  the  provisions  of  section 
1  Include  subcontractors  In  the  list  of  those 
entitled  to  the  benefit  of  the  bond,  unless  the 
provisions  of  section  4  modify,  In  this  partic- 
ular, section  1.  The  only  provision  of  sec- 
tion 4  which  can  possibly  be  claimed  to  ex- 
clude subcontractors  la  the  one  which  pro- 
vides, in  enumerating  those  entitled  to  the 
benefit  of  the  bond,  that  those  who  furnish 
materials  or  perform  labor  in  the  execution 


of  the  contract  at  the  request  of  any  sub- 
contractor shall  be  considered  a  party  in  In- 
terest In  the  bond.  This  provision  must  be 
read  in  connection  with  the  provisions  of 
section  1,  giving  subcontractors  who  furnish 
materials  and  labor  an  interest  in  the  bond. 
So  reading  and  construing  the  provision,  it  is 
clear  that  its  purpose  was  not  to  restrict  the 
operation  of  section  1,  but  to  remove  any  un- 
certainty as  to  the  right  of  one  who  furnish- 
ed labor  and  material  at  the  request  of  the 
subcontractor,  which  might  otherwise  arise 
from  the  fact  that  by  section  1  a  subcon- 
tractor was  given  an  interest  in  the  bond. 

We  so  construe  the  provisions  of  sections 
1  and  4,  and  hold  that  one  who  furnishes  ma- 
terials and  labor  in  the  performance  of  a  con- 
tract for  any  public  works  as  a  subcontractor, 
pursuant  to  a  contract  between  him  and  the 
original  contractor  therefor,  is  entitled  to  the 
benefit  of  the  contractor's  bond  required  by 
the  statute  in  such  cases. 

Order  aflirmed. 


STATE   ex   rel.    BACKUS-BROOKS   CO.   v. 

DISTRICT  COURT  OF  FOURTH 

JUDICIAL  DIST. 

(Supreme  Court  of  Minnesota*    July  16,  1909.) 

Mandamus  ({  3*)— Cancellation  of  Tax 
Jvdohent--Otber  Adequate  Rehedt. 
Where  a  personal  tax  judgment  has  been 
entered  after  failure  to  serve  notice  on  the 
judgment  debtor,  application  for  relief  mast  be 
made  in  the  district  court  in  which  judgment 
Ib  docketed,  and  this  practice  is  adequate  and 
sufficient,  so  that  a  writ  of  mandamus  to  can- 
cel the  judgment  will  not  issue. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Cent  Dig,  U  8-34 ;   Dec.  Dig.  !  3.*] 

Application  by  the  State,  on  the  reltftion 
of  the  Backus-Brooks  Company,  for  writ 
of  mandamus  to  the  District  Court  of  the 
Fourth  Judicial  District.    Writ  denied. 

Harris  Richardson  and  Harold  0.  Kerr, 
for  relator.  Al.  J.  Smith,  Oo.  Atty.,  and  E. 
W.  Gray,  Asst.  Co.  Atty.,  for  respoudeut. 

PER  CURIAM.  The  relator,  Backus- 
Brooks  Company,  petitioned  this  court  for 
a  writ  of  mandamus  upon  the  following 
facts:  A  personal  property  tax  judgment 
regular  on  its  face  was  entered  and  docket- 
ed on  the  14th  day  of  May,  1909,  in  favor 
of  the  state  of  Minnesota  and  against  the 
relator,  for  $1,785.79.  No  citation  was  ever 
issued  to  or  served  on  relator  on  account  of 
the  personal  property  tax.  The  relator  owned 
real  property  upon  which  the  judgment  was 
an  apparent  lien.  The  district  court  is  threat- 
ening to,  and  is  about  to,  and  will,  unless 
said  Judgment  be  canceled  and  set  aside, 
issue  an  execution  and  sell  said  property. 
The  relator  had  no  adequate  remedy,  at  law 
or  otherwise.  Upon  this  petition  this  court 
granted  an  order  to  show  cause  why  the  writ 
should  not  issue. 


•For  other  cases  see  same  topic  and  lectton  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Minn.) 


8ANFORD  T.  FLINT. 


8J5 


In  this  state  personal  property  taxes  are 
collected  by  proceedings  wbicb,  so  far  as  here 
Involved,  are  strictly  judicial  In  nature.  Be- 
fore Judgment  is- entered,  a  prescribed  cita- 
tion must  have  been  personally  served  on 
the  owner  of  the  property  taxed.  He  Is  giv- 
en an  opportunity  to  appear  and  assert  what- 
ever defense  he  may  have.  In  consequence, 
where  a  personal  tax  judgment  has  been  en- 
tered after  failure  to  serve  notice  on  the 
Judgment  debtor,  the  practice  current  In  or- 
dinary civil  actions  controls.  Application 
for  relief  must  be  made  in  the  district  court, 
in  which  the  Judgment  is  docketed.  This  has 
been  the  invariable  practice  in  this  state, 
established  for  many  years.  It  is  adequate 
and  sufficient  It  is  as  "speedy"  as  is  re- 
quired of  Judicial  proceedings  by  the  Con- 
stitution. It  is  true  that  it  Is  not  as  "speedy" 
as  mandamus.  The  present  is  one  of  the 
many  constantly  recurring  instances  In 
which  it  is  improperly  sought  to  use  manda- 
mus as  a  Judicial  short  cut  Its  applica- 
tion to  cases  of  this  kind  would  Inundate 
this  court  with  original  bearings  in  default 
Judgment  cases,  which  in  natural  and  or- 
derly procedure  should  come  first  before 
the  various  district  courts.  We  have  exam- 
ined the  authorities  to  which  relator  refers 
us.  and  find  nothing  in  them  to  change  this 
conclusion. 

The  court  declines  to  issue  the  writ 


SANFORD  V.  FLINT. 
(Sapreme  Court  of  Minnesota.    July  16,  1909.) 

1.  Attobnet  and  Client  (J  12.i*)— Confi- 
OENTiAi,  Relations— Use  of  Knowledge 
AcquiBED  BY  Attobnet. 

The  plaintiff  claimed  title  to  the  land  here 
in  question  by  adverse  possession ;  but  the 
defendant  claimed  that  the  plaintiff  was  under 
disability  so  to  assert  title  thereto  by  reason  of 
his  relations  as  attorney  to  former  owners  of  tlie 
land,  through  whom  the  defendant  claimed  title. 
Held,  the  obli^nition  of  fidelity  which  an  attor- 
ney owes  to  his  client  is  a  continuing  one,  and 
be  cannot  make  use  of  any  knowledge  acquired 
throngh  his  client,  or  through  his  professional 
relations,  for  his  own  advantage,  adverse  to  the 
interests  of  his  client  or  those  claiming  through 
him,  even  after  the  confidential  relations  have 
ceased. 

fEd.  Note,— For  other  rases,  see  Attorney  and 
Client  Cent  Dig.  §i  250-263;  Dec.  Dig.  { 
125.*] 

2.  Attobnet  and  Client  (8  12.")*)— Confi- 
dential Relations- Adverse  Possession. 

The  findings  and  decision  of  the  trial  court 
that  the  plaintiff  was  not  under  such  disability, 
and  tliat  he  had  acquired  title  to  the  land  by 
adverse  possession,  are  sustained  by  the  evi- 
dence. 

[Bd.  Note.— For  other  oases,  see  Attorney  and 
Client  Cent  Dig.  tS  250-263;  Dec.  Tiig.  { 
125.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Ramsey  Coun- 
ty;  Oscar  Hallam,  Judge. 
Action  by  David  Sanford  against  George 


O.  Flint   Judgment  for  plaintiff,  and  defend- 
ant appeals.     Affirmed. 

W.  H.  Yardley,  for  appellant  F.  W.  Zoll- 
man,   for  respondent 

START,  0.  J.  Appeal  by  the  defendant  from 
the  judgment  of  the  district  court  of  the 
county  of  Ramsey  In  this  an  action  to  de- 
termine adverse  claims  to  the  land  described 
in  the  complaint.  The  subject-matter  of  the 
action  is  a  portion  of  lot  3,  in  block  28, 
of  Kittson's  addition  to  St.  Paul,  consist- 
ing of  a  strip  of  land  6.2  feet  wide  on  the 
front  and  9.35  feet  wide  on  the  rear,  and  ly- 
ing alongside  of  lot  4  in  the  same  block.  The 
record  title  to  lot  3  is  in  the  defendant,  Flint, 
and  that  of  lot  4  in  the  pialntifT,  who  claimed 
title  to  the  strip  in  question  by  adverse  pos- 
session. The  trial  court  found  that  the  plain- 
tiff bad  been  in  the  actual,  open,  hostile,  and 
adverse  possession  of  the  strip  for  more  than 
15  years  next  l>efore  the  commencement  of 
the  action,  and  as  a  conclusion  of  law  that 
be  was  entitled  to  judgment  that  be  is  the 
owner  of  the  land  in  fee  simple  and  that  the 
defendant  has  no  title  to  or  interest  therein. 

The  defendant's  assignments  of  error  raise 
the  question  whether  the  trial  court's  find- 
ing of  fact  on  the  issue  of  adverse  possession 
is  sustained  by  the  evidence.  The  evidence 
is  practically  conclusive  that  the  plaintiff 
was  in  the  actual  possession  of  the  land  for 
more  than  15  years,  claiming  to  be  the  owner 
thereof;  but  it  is  the  contention  of  the  de- 
fendant that  the  plaintiff  was  under  disa- 
bility to  acquire  or  assert  title  thereto  in 
himself  by  adverse  possession,  by  reason  of 
bis  relations  as  an  attorney  with  the  for- 
mer owners  of  the  land,  through  whom  the 
defendant  claims  title.  It  is  well  settled 
that  the  obligation  of  fidelity  which  an  at- 
torney owes  to  his  client  is  a  continuing  one, 
and  that  he  cannot  make  use  of  any  knowl- 
edge acquired  from  his  client  or  through  his 
professional  relation,  for  his  own  advantage, 
adverse  to  the  interests  of  his  client,  or  those 
claiming  through  him,  even  after  the  confi- 
dential relations  have  ceased. 

It  is  here  urged  on  the  part  of  the  defend- 
ant that  the  undisputed  evidence  brings  this 
case  within  the  rule  stated;  hence  the  find- 
ing of  fact  as  to  the  plaintiff's  adverse  pos- 
session is  wholly  unsupported  by  the  evi- 
dence. The  record  does  not  sustain  this 
contention.  It  may  fairly  be  Inferred  from 
the  evidence  that  the  adverse  possession  of 
the  plaintiff  had  its  Inception  In  a  mistake 
as  to  the  true  boundary  line  between  lots  3 
and  4.  The  evidence  shows  that  the  plaintiff 
acted  at  different  times  from  1859  to  1^6  as 
attorney  of  the  respective  owners  of  the  lots; 
that  such  services  consisted  in  forei>losing 
a  mortgage  on  the  lots  in  1859.  in  probating 
the  will  of  the  person  who  died  seised  of  the 
lots  in  1867,  whereby  the  title  thereto  was 
vested  in  the  daughter  of  the  testator,  Mrs. 


•Var  qther  easM  ■«•  um*  topic  Uld  sscUon  MUMBGR  In  Dec.  ft  Am.  Digs.  1907  to  data.  It  Reporter  Indexe* 


Digitized  by  VjOOQ  l€ 


316 


122  NOBTHWESXEBN  REPORTEB. 


(Mlmi. 


Murphy,  In  renting  the  property,  preparing 
leases  therefor,  and  collecting  the  rents  from 
1883  to  1886,  and  in  conducting  an  action  to 
quiet  her  title  to  the  lots  in  1885.  Such,  in 
brief,  was  the  general  character  of  the  serv- 
ices rendered  by  the  plaintiff  to  the  sever- 
al owners  of  the  lots.  The  last  service  was 
the  preparation  of  a  deed  In  1886  whereby 
Mrs.  Murphy  conveyed  lot  4  to  the  plaintiff's 
grantor,  who  conveyed  it  to  the  plaintiff  in 
1887,  when  he  went  Into  possession  thereof. 

The  record  discloses  no  evidence  that  the 
plaintiff  was  ever  consulted,  as  an  attor- 
ney or  otherwise,  in  reference  to  the  bound- 
ary line  between  the  lots  by  any  owner  of 
the  land;  nor  is  there  any  evidence  tend- 
ing to  show  that  In  purchasing  lot  4  and 
going  Into  possession  thereof.  Including  as 
a  part  thereof  the  strip  of  land  here  la  ques- 
tion, be  violated  his  duties  or  obligations  as 
an  attorney  to  any  of  the  former  owners  of 
the  land.  The  fact  that  he  acted  as  attor- 
ney for  them  in  matters  wholly  disconnected 
with  the  boundary  line,  a  matter  which  did 
not  arise  until  after  he  ceased  to  be  their  at- 
torney, did  not  preclude  him  from  subse- 
quently acquiring  title  to  the  strip  of  land 
here  In  dispute  by  adverse  possession.  The 
fact  that  a  lease  of  the  southerly  30  feet  of 
lot  4,  and  running  back  to  the  fence  the  whole 
width  of  the  lot,  was  made  and  executed 
in  1883  by  the  plaintiff  for  the  then  owner 
thereof,  is  not  particularly  significant,  either 
in  itself  or  in  connection  with  other  leases; 
for  at  this  time  no  controversy  had  arisen  as 
to  the  true  boundary  line  between  the  lots. 

We  are  of  the  opinion  that  the  evidence 
amply  sustains  the  findings  and  decision  of 
the  trial   court 

Judgment  affirmed. 


DOTLB  et  al.  v.  WAGNER  et  al. 
(Supreme  Court  of  Minnesota.    July  16,  1909.) 

1.  Sufficiency  or  Evidknob. 

Action  to  foreclose  a  mechanic's  lien  on 
the  land  of  the  defendants.  Defense  was  a 
decree  registering  the  title  under  the  Torrens 
system,  which  did  not  recognize  and  establish 
toe  allesed  lien.  Held,  the  findings  and  de- 
cision of  the  trial  court  that  the  registration 
proceedings  were  regular  and  the  decree  was 
obtained  without  fraad  are  sustained  by  the 
evidence. 

2.  Records  (}  9*)— Reoi^tbation  of  Titles 

TO    IjAND— CONCLDSIVENESS. 

Section  27,  c.  305,  p.  466,  Laws  1905,  pro- 
viding for  the  foreclosuie  of  liens  not  recog- 
nized and  established  by  the  decree,  applies  on- 
ly to  parties  not  bound  by  the  decree.  The 
plaintiffs  are  bound  by  the  decree. 

[Eid.  Note.— For  other  cases,  see  Records, 
Dec.  Dig.  {  9.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  C!ourt,  Ramsey  Coun- 
ty ;  Orier  M.  Orr,  Judge. 

Mechanic's  lien  foreclosure  by  J.  H.  Doyle 
and  others  against  Luella  T.  Wagner  and 


others.  There  was  a  Judgment  for  defend- 
ants, and  both  parties  moved  for  a  new  trial. 
From  the  respective  orders  denying  the  same, 
they  appeal.  Order  appealed  from  by  plain- 
tiffs affirmed,  and  defendants'  appeal  dis- 
missed. 

Thos.  O.  Daggett,  for  plalntifffe.     W.   H. 
Williams,  for  defendants. 

START,  C  J.  Action  to  foreclose  a  me- 
chanic's lien  on  the  property  of  the  defend- 
ants Wagner,  commenced  in  the  district 
court  of  the  county  of  RamsQy  on  December 
22,  1905.  The  defendants  demurred  to  the 
amended  complaint,  and  upon  appeal  to 
this  court  from  an  order  sustaining  the  de- 
murrer it  was  held  that  the  complaint  stated 
a  cause  of  action.  Doyle  t.  Wagner,  100 
Minn.  380,  111  N.  W.  275.  The  defendants 
then  answered,  alleging,  with  other  defenses, 
that  proceedings  were  duly  instituted  in  the 
district  court  of  the  county  of  Ramsey  to 
register  under  the  Torrens  system  the  title 
to  the  lot  upon  which  the  plaintiffs  claim  a 
lien;  that  a  decree  of  registration  was  duly 
made  and  entered  on  August  28,  1905,  regis- 
tering the  title  to  the  lot  In  the  name  of  the 
defendant  Luella  T.  Wagner;  that  a  certifi- 
cate of  registration  was  duly  Issued  to  her; 
and,  further,  that  neither  In  the  decree  nor 
in  the  certificate  was  there  any  exception  of 
the  alleged  Hen  of  the  plaintiffs.  The  reply 
alleged  that  the  plaintiffs  were  not  made 
parties  to  the  registration  proceedings;  that 
the  defendants  then  knew  of  the  plaintiffs' 
lien  upon  the  property,  and  fraudulently  and 
secretly  instituted  and  presented  the  regis- 
tration proceedings  to  defeat  their  rights. 

The  trial  court  found.  In  effect  that  the 
plaintiffs,  as  subcontractors,  furnished  ma- 
terials and  labor  for  the  construction  of  a 
bouse  upon  the  defendants'  lot  of  the  rea- 
sonable value  of  $750,  of  which  |550  remain- 
ed unpaid;  that  the  contractor  failed  to 
pay  such  balance,  and  the  plaintiffs  on 
March  17,  1905,  filed  a  lien  statement  In 
the  office  of  the  register  of  deeds.  In  which  it 
was  stated  that  they  had  furnished  materi- 
als and  labor  for  a  dwelling  house  on  lot 
18,  block  18,  of  Anna  E.  Ramsey's  addition 
to  St.  Paul,  known  as  No.  1153  Ashland 
avenue,  which  was  not  the  number  of  any 
house  on  lot  18,  but  was  the  number  of  the 
defendants'  house  on  lot  16,  in  the  same 
block,  and  that  the  property  to  be  charged 
with  the  Hen  was  lot  18;  that  the  defend- 
ant LueUa's  title  to  lot  IG  was  duly  regis- 
tered, as  alleged  in  the  answer;  that  nei- 
ther the  abstract  nor  the  examiner's  report 
filed  in  the  registration  proceedings  made 
any  reference  to  plaintiffs'  alleged  lien  on 
defendants'  property;  that  she  did  not  at 
any  time  during  the  pendency  of  the  regis- 
tration proceedings  have  any  notice  or  knowl- 
edge of  the  existence  of  the  plaintiffs'  alleged 


»rot  otber  casM  u*  Mm*  topic  and  mcUob  NUMBER  in  U«c.  *  Am.  Digs.  U07  to  dat*.  *  Raportar  Indezu 


Digitized  by  VjOOQ  l€ 


Minn.) 


KIPP  V.  HAGAN. 


317 


lien;  and,  further,  that  the  allegations  of 
frand  In  the  reply  were  not  true.  The  trial 
roort'a  concluslona  of  law  were  to  the  ef- 
fect that  the  defendant  Luella  was  the  owner 
of  the  proi)erty  free  and  clear  of  the  lien 
claimed  by  the  plain  tiff  a. 

Both  parties  made  a  motion  for  a  new 
trial,  each  motion  was  denied,  and  each  party 
appealed  from  the  order  denying  his  motion. 
The  plaintiffs'  aaalgnments  of  error  raise 
two  anestions. 

1.  The  first  one  is  whether  the  finding  of 
fact  of  the  trial  court  as  to  the  knowledge 
of  the  defendants  of  the  alleged  lien  and 
the  allegations  of  fraud  in  the  reply  Is  sus- 
tained by  the  evidence.  We  are  of  the 
opinion  that  the  evidence  was  not  sufficient 
to  require  a  finding  for  the  plaintiffs  upon 
the  allegations  of  knowledge  and  fraud,  and, 
further,  that  the  evidence  fairly  sustains  the 
finding  made. 

2.  The  other  question  is  whether  the  court's 
condualou  of  law  is  justified  by  the  facts 
foand.  This  depends  upon  the  effect  to  be 
given  to  the  registration  proceedings.  The 
statute  under  which  the  registration  pro- 
ceedings were  had  is  chapter  303,  p.  4'A, 
Laws  1905,  Sections  14,  15,  and  21  provide 
that  all  persons  shown  by  the  report  of  the 
examiner  to  l>e  in  possession  of  the  land, 
or  to  have  any  title  to  or  interest  therein, 
or  lien  or  Incumbrance  thereon,  shall  be  nam- 
ed in  the  summons  as  defendant,  with  all 
other  persons  or  parties  unknown  claiming 
any  right,  title,  estate,  lien,  or  Interest  there- 
in or  thereon ;  that  by  the  phrase  "all  other 
persons  or  parties  unknown"  all  the  world 
are  made  parties  defendant,  and  shall  be 
bound  and  concluded  by  the  decree  of  regis- 
tration; and,  further,  that  the  decree  shall 
be  binding  and  conclusive  upon  all  persons, 
whether  mentioned  by  name  or  included  in 
the  phrase  "all  persons  or  parties  unknown." 
Sections  22,  24,  and  25  provide  that  the  de- 
cree of  registration  shall  set  forth  all  liens 
on  the  land,  and  that  the  person  receiving 
a  certificate  title  pursuant  to  such  decree, 
and  every  subsequent  purchaser  of  registered 
land,  who  receives  a  certificate  of  title  In 
good  faith,  shall  hold  the  same  free  from 
all  liens,  except  those  noted  thereon,  and, 
further,  that  any  party  not  actually  served, 
who  had  no  notice  of  the  pendency  of  the 
proceedings,  may  apply  to  the  court  at  any 
time  within  60  days  after  the  entry  of  the 
decree  for  leave  to  answer.  Section  28  pro- 
vides that  an  appeal  may  be  taken  from  the 
Judgment  within  6  months  from  the  date 
thereof. 

In  the  case  of  Reed  v.  Siddall,  94  Minn. 
216,  102  N.  W.  433,  this  court,  in  construing 
similar  statutory  provisions,  held  that  the 
existence  and  validity  of  liens  must  be  es- 
tablished in  the  registration  proceedings,  or 
they  are  barred,  but  not  their  foreclosure. 


In  Baart  v.  Martin,  99  Minn.  197,  108  N.  W. 
945,  116  Am.  St.  Rep.  394,  it  was  held  that  a 
duly  registered  land  title  was  indefeasible, 
unless  obtained  by  fraud,  in  which  case  the 
defrauded  party  was  not  bound  by  it  In 
the  case  at  bar  the  plaintiffs  were  not  named 
in  the  summons  as  defendants,  nor  was  it 
personally  served  on  them,  presumably  for 
the  reason  that  the  defendants'  lot  was  not 
described  in  the  lien  statement  filed;  hence 
no  reference  was  made  to  it  in  the  abstract 
and  examiner's  report  filed  In  the  registra- 
tion proceedings.  The  plaintiffs  were,  never- 
theless, parties  to  the  proceedings  by  virtue 
of  the  provisions  of  section  15.  The  regis- 
tration proceedings  were  regular,  and  there 
was  no  fraud  in  obtaining  the  decree.  It 
follows  that  the  plaintiffs  were  bound  by  the 
decree,  although  it  did  not  recognize  or  es- 
tablish their  lien. 

It  is,  however,  the  contention  of  the  plain- 
tiffs that  they  are  entitled  to  maintain  this- 
action  to  foreclose  their  alleged  lien,  which 
was  brought  within  six  months  from  the 
date  of  the  decree,  t)^  virtue  of  section  27, 
the  here  material  provisions  of  which  are 
these:  "No  action  or  proceeding  for  the  en- 
forcement or  foreclosure  of  any  lien  or 
charge  upon  or  against  registered  land,  in 
exV,tence  at  the  date  of  any  original  decree 
of  registration  hereafter  entered,  and  which 
is  not  recognized  and  established  by  such  de- 
cree, shall  be  maintained,  unless  such  action 
or  proceeding  is  commenced  within  six 
months  from  the  date  of  such  original  de- 
cree. No  such  action  or  proceeding  shall  be 
commenced  by  any  person  who  is  bound  by 
the  decree."  It  is  clear  that  this  section 
applies  only  to  parties  who  are  not  bound 
by  the  decree,  and  authorizes  them  to  fore- 
close their  liens  within  six  months  from  the 
date  of  decree,  although  such  liens  were  not 
recognized  and  established  by  the  decree. 
The  plaintiffs  are  l>ound  by  the  decree,  and 
provisions  of  section  27  referred  to  have 
no  application  to  this  case.  Therefore  the 
conclusion  of  law  of  the  trial  court  is  sus- 
tained by  the  facts  found. 

It  follows  that  it  is  not  necesssai-y  to  con- 
sider the  defendants'  appeal,  arid  that  it 
should  be  dismissed,  and  that  the  order  ap- 
pealed from  Ijy  the  plaintiffs  should  be  af- 
firmed.   So  ordered. 


KIPP  V.  HAGAN. 

(Supreme  Court  of  Minnesota.    July  9,  1909.) 

1.  Advebse  Possession  (§  47*)  —  Entby  bt 
IIOI.DEB  OF  Legal  Title— B»teot. 

The  entry  into  actual  possession  of  land 
by  the  holder  of  the  legal  title,  or  person  claim- 
ing under  him,  before  the  expiration  of  the  stat- 
utory period  for  acquirin|;  title  by  adverse  pos- 
session, arrests  the  mnning  of  the  statute. 

[Ed.  Note. — For  other  cases,  see  Adverse  Pos- 
session, Cent.  Dig.  i  235;   Dec.  Dig.  (  47.*] 


•For  other  eases  see  wme  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  dat^  *  Reporter  Ibdezea 


Digitized  by  VjOOQ  l€ 


318 


122  NORTHWESTEHN  REPORTEH. 


(Mian. 


2.  Advebse   Possession   ({   115*)— Question 

FOB  JUBT. 

Evidence  held  insufficient  to  take  to  the 
jury  the  question  of  defendant's  alleged  title 
by  adverse  possession,  and  that  the  court  right- 
ly directed  a  verdict  for  plaintiff. 

[Ed.  Note.— For  other  cases,  see  Adverse  Pos- 
session, Dec.  Dig.  f  115.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Sherburne 
County ;   Arthur  E.  Glddings,  Judge. 

Action  by  Sylvester  Kipp  against  Catherine 
Eagan.  Verdict  for  plaintiff.  From  an  order 
denying  a  new  trial,  defendant  appeals.  At- 
flrmed. 

S.  R.  Child  and  BenJ.  Drake,  for  appellant 
P.  J.  McLaughlin,  for  respondent 

BROWN,  J.  Action  In  ejectment  in  which, 
at  the  conclusion  of  the  trial,  a  verdict  was 
directed  for  plaintiff,  and  defendant  appealed 
from  an  order  denying  a  new  trial. 

1.  The  evidence  sufficiently  showed  the  le- 
gal title  to  the  property  in  plaintiff,  and  con- 
sequently the  right  of  iKmsession,  and  a  ver- 
dict was  properly  directed  in  bis  favor,  un- 
less the  defendant's  claim  of  title  by  15  years' 
adverse  possession  was  supported  by  suffi- 
cient competent  evidence  to  require  the  sub- 
mission of  the  question  to  the  jury.  Plaintiff 
claimed  title  through  the  original  patentee, 
Hannah  Kuslck,  and  to  prove  It  offered  In 
evidence  deeds  from  the  heirs  of  Hannah, 
signed  under  the  name  of  McKuslc.  The  evi- 
dence fully  explains  the  variance  in  the 
names.  A  daughter  of  the  patentee  testified 
that  the  family  was  known  by  and  used  both 
names.  Deeds  by  the  heirs,  sons  and  daugh- 
ter, purported  to  convey  the  land  to  plain- 
tiff's predecessor  In  title  as  heirs  at  law  of 
the  patentee,  Hannah  Kusick,  deceased. 

2.  The  facts  In  reference  to  defendant's  ad- 
verse possession  are  as  follows:  Defendant 
and  William  Hagan,  her  husband,  owned  and 
resided  upon  a  tract  of  land  adjoining  the 
land  in  controversy,  and  in  1891  claim  to 
have  taken  possession  of  this  land,  and  there- 
after continued  In  the  open,  exclusive,  and 
notorious  occupancy  thereof  until  the  death 
of  William  in  1907,  since  which  time  the  de- 
fendant has  continued  the  exercise  of  act's  of 
ownership  and  possession.  Neither  defend- 
ant nor  her  husband  ever  resided  upon  this 
land,  but  upon  their  own,  the  adjoining  tract, 
though  the  evidence  tends  to  show  that  they 
cropped  a  few  acres  of  it,  cut  hay  from  other 
parts,  and  used  a  portion  thereof  for  pasture 
purposes.  It  is  claimed  that  this  situation 
continued  down  to  the  time  of  the  commence- 
ment of  this  action,  a  period  of  over  15  years, 
and  that,  though  the  original  occupancy  of 
the  land  was  by  Wllliara  Hagan,  defendant's 
husband,  she  continued  it  after  his  death,  and 
is  entitled  to  the  benefit  of  the  preceding  acts 
of  ownership  by  blm.  The  Hagans  had  a 
daughter,  an  only  child,  named  Anna,  who 


about  1891  married  a  man  named  Eight  by 
whom  she  had  a  son.  She  subsequently  mar- 
ried a  man  named  Zimmerman,  by  whom  she 
had  children.  At  the  time  of  the  trial  of 
this  action  she  was  the  wife  of  one  Chubb. 
Between  1891  and  1904  the  daughter's  chil- 
dren resided  with  their  grandparents  on  their 
home  farm,  and  the  daughter  made  her  home 
with  them  at  Intervals,  frequently  remalnius 
for  months  at  a  time.  In  1885,  the  daughter, 
then  Mrs.  Zimmerman,  entered  into  a  con- 
tract for  the  purchase  of  the  land  m  contro- 
versy from  the  then  owners,  upon  the  con- 
summation of  which  she  took  possession 
thereof  and  made  certain  improvements, 
namely,  the  construction  of  a  fence  and  grub- 
bing and  breaking  about  five  acres  thereof. 
During  the  time  of  her  possession  under  the 
contract  she  paid  the  taxes  assessed  against 
the  land  for  the  years  1887  to  1897,  to  the 
amount  of  $114.  Plaintiff  and  Orrin  Kipp 
became  the  owners  of  the  land  in  1901,  and 
they  brought  an  action  to  quiet  title  to  the 
same  agaiust  Mrs.  Zimmerman,  wiio  held  un- 
der the  contract  just  mentioned,  and  others 
claiming  or  appearing  to  claim  some  estate  or 
interest  therein.  Mr&  Zimmerman  answered, 
setting  up,  first  a  claim  of  ownership  under 
her  contract  with  the  former  owners;  and, 
second,  a  claim  for  permanent  improvements 
made  to  the  land  while  occupying  under  the 
contract  of  the  value  of  $250.  That  cause 
was  duly  brought  to  trial,  and  the  court 
found  as  facts  therein  that  Mrs.  Zimmerman 
entered  into  the  possession  of  the  land  In 
1805  under  the  contract  of  purchase,  and  ever 
thereafter,  by  herself,  employes,  or  members 
of  her  family,  remained  in  tne  exclusive  oc- 
cupancy thereof.  But  she  was  found  In  de- 
fault in  her  payments  and  the  contract  was 
canceled.  Defendant  In  this  action,  mother 
of  Mrs.  Zimmerman,  and  with  whom  the  lat- 
ter and  children  made  their  home,  was  a 
witness  on  the  trial  of  tbat  action  on  behalf 
of  her  daughter,  and  testified  that  she  knew 
of  the  improvements  for  which  Mris.  Zimmer- 
man made  claim,  that  they  were  made  by 
Mrs.  Zimmerman,  and  were  worth  $32.  Judg- 
ment was  ordered  and  entered  quieting  Kipp's 
title,  subject  to  the  claim  of  Mrs.  Zimmerman 
for  Improvements  made  and  taxes  paid, 
amounting  in  all  to  $336.45.  This  was  paid, 
and  the  judgment  satisfied. 

Thereafter  defendant  claiming  under  the 
alleged  continuous  possession  of  herself  and 
husband,  asserted  ownership  of  the  land,  took 
actual  possession  thereof,  and  plaintiff,  hav- 
ing become  the  sole  owner  of  the  legal  title, 
brought  this  action  to  recover  its  possession. 
As  already  stated,  defendant  claimed  in  de- 
fense title  by  adverse  possession.  At  the 
conclusion  of  the  trial,  plaintiff  requested  an 
instructed  verdict  on  two  grounds:  (1)  That 
the  defendant's  evidence  failed  to  show  that 
she  had. been  in  the  continuous,  actual,  and 
adverse  possession  for  the  period  required  by 


•For  otber  cues  see  same  topic  and  aectlon  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  data,  *  Reporter  Indexw 


Digitized  by  LjOOQ  l€ 


Miun.) 


STATE  V.  WHITTIEa. 


319 


law;  and  (!9  that  defendant,  by  her  appear- 
ance as  a  witness  In  the  trial  of  the  Zimmer- 
man action  In  support  of  the  latter's  claim 
to  Improvements,  upon  which  plaintiff  relied 
in  paying  the  judgment  rendered  in  that  ac- 
tion, estopped  herself  from  now  claiming  ad- 
verse possession  during  the  period  of  Mrs. 
Zimmerman's  occupancy.  The  court  granted 
the  motion,  but  without  stating  upon  which 
ground. 

Oar  conclusion,  after  a  somewhat  careful 
examination  of  the  record,  is  that  a  verdict 
was  properly  directed  for  plaintiff  on  the 
first  stated  ground,  in  view  of  which  we  do 
not  consider  the  merits  of  the  second.  In 
oar  opinion,  the  evidence,  taken  as  a  whole, 
with  its  side  lights,  will  not  justify  a  verdict 
in  defendant's  favor,  and  the  court  rightly 
disposed  of  the  case  by  directing  a  verdict 
for  plaintiff.  There  was  no  such  adverse 
possession  and  occupancy  shown  as  would 
warrant  the  legal  conclusion  of  title  by  lapse 
of  time.  It  wholly  falls  to  show  a  possession 
In  either  of  the  Hagans  for  the  statutory  pe- 
riod of  15  years.  They  both  Icnew  that  the 
land  belonged  to  others  in  fact,  and  their 
original  entry  was  a  trespass.  They  paid  no 
taxes,  and  the  record  falls  short  of  showing 
an  exclusive,  continuous  possession,  but  does 
show  to  the  contrary.  Both  apparently  rec- 
ognized the  rights  of  Mrs.  Zimmerman,  and 
defendant  appeared  In  court  and  gave  evi- 
dence In  support  of  those  rights,  which  arose 
during  the  period  covered  by  the  possession 
now  asserted  by  her.  If  it  be  conceded  that 
the  Hagans  entered  into  possession  of  the 
land  in  1S81,  as  now  claimed,  it  is  quite 
clear  that  the  possession  so  taken  was  Inter- 
rupted by  the  appearance  of  Mrs.  Zimmer- 
man. 1  Cyc.  1009,  and  cases  cited.  She  en- 
tered into  a  contract  for  Its  purchase  in 
lSd5,  made  improvements  thereon,  and  claim- 
ed, and  the  court  in  the  other  action  found 
that  she  thereafter,  for  a  number  of  years, 
by  herself  or  members  of  her  family,  retain- 
ed possession  and  control  of  the  same.  She 
was  at  this  time  residing  with  her  mother, 
defendant  herein,  and  it  would  be  a  severe 
strain,  in  view  of  the  relation  existing  be- 
tween the  parties  and  the  situation  of  the 
property,  adjoining  that  of  defendant,  to  hold 
that  the  latter  during  this  same  period  was 
occupying  and  in  possession  of  the  land  ad- 
verse to  the  claims  of  the  daughter.  The 
only  legitimate  inference  from  the  circum- 
stances disclosed  is  either  that  defendant 
never  Intended  to  claim  the  exclusive  right 
to  the  land,  or,  if  she  did,  that  she  and  her 
liusband  surrendered  the  same  to  the  d.iugh- 
ter  at  the  time  she  contracted  to  purchase  it. 
The  evidence  and  circumstances  disclosed  by 
the  record  point  irreslstibl?  to  the  latter  con- 
clusion. At  any  rate,  the  entry  by  Mrs.  Zim- 
merman, under  the  circumstances  stated,  ar- 
rested the  running  of  the  statute  in  favor  of 
tbe  Hagans.     Hood  v.   Hood,  25  Pa.  417; 


Brickett  v.  Spofford,  14  Gray  (Mass.)  514; 
1  Cyc.  1009. 

We  have  examined  all  of  defendant's  as- 
signments of  error,  challenging  rulings  on  the 
admission  and  exclusion  of  evidence,  and  dis- 
cover no  substantial  error.  The  exclusion  of 
the  testimony  of  Mrs.  Nichols,  to  the  effect 
that  Mrs.  Hagan  said  to  her  in  1S91  that  she 
(Mrs.  Hagan)  owned  this  land,  was  not  re- 
versible error.  Confessedly,  Mrs.  Hngan  did 
not  own  the  land  at  that  time,  nor  bad  she 
then  any  claim  of  right,  possessory  or  other- 
wise. And  though  in  cases  of  this  kind  dec- 
larations of  title  by  one  in  adverse  possession 
of  land  may  be  admissible  as  characterizing 
the  possession,  on  the  whole  record  in  this 
case  the  ruling  of  the  court  was  not  prejudi- 
cial. The  possession  taken  by  tbe  Hagans  in 
1S91  was  broken  and  interrupted  In  1805,  and 
no  rights  have  accrued  since  that  time.  The 
judgment  roll  In  the  Zimmerman  action  was 
properly  received  in  evidence,  not  as  conclud- 
ing defendant,  for  she  was  not  a  party  to 
that  action,  but  as  tending  to  controvert  the 
claim  of  continuous  possession  by  her.  Her 
relations  with  Mrs.  Zimmerman,  her  knowl- 
edge of  the  pendency  of  the  action,  and  that 
her  daughter  had  contracted  to  buy  the  land 
In  1895,  and  that  she  was  claiming  title  to 
the  land  In  defense  of  that  action,  made  the 
record  therein  admissible  as  an  element  tend- 
ing to  defeat  defendant's  asserted  exclusive 
occupancy. 

Order  affirmed. 


STATE  ex  rel.  SLATTON  v.  WHITTIER. 
(Supreme  Court  of  Minnesota.    July  16,  1909.) 
Habeas  Cobpits  (S  22*)— Procedtjbi— Juog- 

ife-nt— collatebai.  attack. 

A  judfonent  entered  in  proceedings  under 
chapter  2S.'5,  p.  418,  Gen.  I^aws  190.1,  authoriz- 
ing tile  committal  of  incorriKible  minors  to  the 
State  Traininj;  School,  which  recites  all  neces- 
sary juriRdictional  facts,  cannot  be  impeached 
or  contradicted  collaterally  on  the  writ  of  ha- 
beas corpus. 

[Ed.  Note.— For  other  cases,  see  Habeas  Cor- 
pus, Cent.  Dig.  SS  19%.  20;   Dec.  Dig.  i  22.»] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Goodhue  Coun- 
ty; W.  C.  wnilston.  Judge. 

Application  by  the  State,  on  the  relation 
of  E}va  A.  Slayton,  for  writ  of  habeas  cori>us 
to  P.  A.  Whlttler.  Writ  discharged,  and  re- 
lator appeals.    Affirmed. 

Schmidt  &  Newman,  for  appellant.  Geo. 
T.  Simpson,  Atty.  Gen.,  and  Wm.  M.  Eric- 
son,  Co.  Atty.,  for  respondent. 

BROWN,  J.  Genevieve  Slayton,  under  the 
age  of  10  years,  was  on  the  Ist  day  of  Oc- 
tober, 1907,  under  authority  of  the  provisions 
of  chapter  285,  p.  418,  Gen.  Laws  1905,  duly 
committed  by  the  district  court  of  Ramsey 
county  to  the  State  Training  School  at  Red 


•For  other  eaaai  ■«•  tama  topic  and  ■•ctlon  NUMBER  in  Dec.  *  Am.  Disi.  1907  to  date,  A  Reporter  indexes 


Digitized  by  VjOOQ  l€ 


320 


122  NORTHWESTERN  REPORTER. 


(Mian. 


Wing.  Thereafter,  on  March  20,  1909,  rela- 
tor, the  foster  mother  and  duly  constituted 
guardian  of  the  said  Genevieve,  sued  out  a 
writ  of  habeas  corpus  in  the  district  conrt  of 
Ooodbue  county  for  her  release  and  dis- 
charge from  custody.  Upon  the  hearing  in 
that  court  the  writ  was  discharged,  and  rela- 
tor appealed. 

It  Is  contended  by  relator  that  the  commit- 
ment of  her  ward  was  Illegal  and  void,  for 
the  reason  that  no  summons  or  other  notice 
of  the  proceedings  by  which  the  girl  was 
committed  was  ever  Issued  or  served  upon  re- 
lator, as  required  by  section  6  of  the  act  un- 
der which  the  court  below  proceeded.  In  her 
petition  for  the  writ  she  alleges  that  this  sec- 
tion of  the  statute  was  not  compiled  with, 
and  she  Insists,  therefore,  that  the  commit- 
ting court  had  no  Jurisdiction.  The  return 
of  respondent  admits  the  custody  of  the  girl, 
and  sets  out  a  copy  of  the  judgment  of  com- 
mitment, which  recites:  "And  it  appearing 
that  all  persons  interested  have  had  due  no- 
tice, it  is  ordered  and  adjudged  that  she  be 
committed,"  etc.  The  return  also  alleges 
that  the  relator  voluntarily  appeared  in  court 
at  the  time  of  the  commitment  and  took  part 
in  those  proceedings. 

Without  stopping  to  consider  whether  rela- 
tor's presence  in  court  at  the  time  her  ward 
was  committed  to  the  school  by  the  court  be- 
low would  obviate  the  necessity  of  a  formal 
summons  or  notice  to  her,  as  required  by  the 
statute  referred  to,  we  dispose  of  the  case 
on  the  ground  that  the  recital  in  the  Judg- 
ment of  commitment  that  due  notice  was  giv- 
en all  interested  parties  cannot  be  impeached 
in  this  collateral  proceeding.  State  ex  rel.  ▼. 
Sheriff,  24  Minn.  87 ;  State  ex  rel.  v.  Phillip, 
78  Minn.  77,  75  N.  W.  1029 ;  State  ex  rel.  v. 
Bailey,  106  Minn.  138,  118  N.  W.  076.  The 
court  bad  Jurisdiction  of  the  subject-matter 
and  of  the  person  of  one  committed  to  the 
school,  and  it  recites  notice  to  all  others  in- 
terested. The  Judgment  Is  therefore  fair  on 
its  face,  and  not  open  to  indirect  attack. 

Order  affirmed. 


STRAUCH  ▼.  FLYNN. 
(Supreme  Court  of  Minnesota.    July  2,  1909.) 

1.  Pleading  (§  180*)— Replt— Departure. 

An  allegation  in  a  reply  of  a  cause  of  ac- 
tion in  deceit  for  fraudulently  inducing  plain- 
tiff to  lend  defendant  money  on  a  promissory 
note  is  inconsistent  with  a  complaint  to  recover 
a  money  judgment  on  that  note. 

[Ed.   Note. — For   other   cases,    see    Pleading, 
Cent.  Dig.  §  369;    Dec.  Dig.  i  180.*] 

2.  Bahkbcptcy    (J   433*)  —  Pleading   Dis- 

CHABQB— Ria'LT. 

The  fact  that  the  answer  set  up  a  discharge 
of  defendant  in  bankruptcy  after  the  execu- 
tion of  the  note  and  before  the  commencement 
of  the  suit  does  not  render  such  a  reply  proper. 
[Ed.  Note.— For  other  cases,  see  Bankruptcy, 
Cent.  Dig.  }  833;    Dec.  Dig.  {  435.*] 

(Syllabus  by  the  Court.) 


Appeal  from  Municipal  Court  of  St  Paul; 
John  W.  Finehout,  Judge. 

Action  by  H.  E.  Straucb  against  Michael 
S.  Flynn.  From  an  order  striking  out  cer- 
tain allegations  in  the  reply,  plaintiff  appeals. 
Affirmed. 

John  C.  Mangan,  for  appellant  D.  B. 
Dwyer,  for  respondent 

JAGMSARD,  J.  The  complaint  of  plaintiff 
and  appellant  set  forth  the  terms  of  a  prom- 
issory note  executed  to  plaintiff  by  defend- 
ant and  respondent,  its  nonpayment  and 
prayed  a  money  Judgment  in  the  amount  of 
the  note,  with  interest.  Defendant's  answer 
alleged  his  discharge  In  bankruptcy  after  the 
execution  of  this  note  and  before  this  action 
was  begun.  Plaintiff's  reply  stated  that  the 
note  sued  on  was  a  liability  for  obtaining 
property  by  false  pretenses  and  representa- 
tions, that  defendant  wholly  failed  to  sched- 
ule the  note  sued  on,  and  that  therefore  it 
was  excepted  by  section  17  of  the  bankruptcy 
act  (Act  July  1,  1898,  c.  541,  30  Stat.  550 
[U.  S.  Comp.  St  1901,  p.  3428])  from  the  ef- 
fect of  the  discharge.  The  court  on  defend- 
ant's motion,  struck  out  the  allegations  in 
the  reply  as  to  fraud.     Plaintiff  appealed. 

It  will  here  be  assumed  that  plaintifTs 
reply  was  correct  as  to  form.  Bankr.  Act 
March  2,  1867,  c.  176,  {  33,  14  Stat  633  (Rev. 
St  U.  S.  I  6117)  excepted  from  the  discharge 
by  the  decree  in  bankruptcy  "a  debt  creat- 
ed by  fraud."  See  Crawford  v.  Burke,  195 
U.  S.  176-189,  25  Sup.  Ct  9,  49  L.  Ed.  147. 
The  act  of  1898  (U.  S.  Comp.  St  1901,  p. 
3428)  excepted  "Judgments  in  an  action  for 
fraud."  Loveland  on  Bankruptcy  (3d  Ed.) 
838;  Goodman  v.  Herman,  172  Mo.  344,  72 
S.  W.  546,  GO  L.  R.  A.  885;  Barnes  Cycle 
Co.  V.  Haines,  69  N.  J.  Law,  651,  61  AO.  515 ; 
In  re  Bhutassel  (D.  C.)  96  Fed.  507,  699; 
Morse  &  Rogers  v.  Kaufman,  100  Va.  218, 
40  S.  E.  916.  The  amendment  of  1903  (Act 
Feb.  5,  1903,  c.  487,  i  5,  32  Stat  798  {U.  S. 
Comp.  St  Supp.  1907,  p.  1026])  to  that  act 
being  section  17,  excepted  "all  liabilities  for 
obtaining  money  by  false  pretenses  or  false 
representations."  That  section  applies  to 
the  facts  in  this  case. 

If  plaintiff  had  sued  on  the  fraud — that 
is,  to  recover  damages  for  deceit — a  plea  of 
discharge  by  the  decree  In  bankruptcy  would 
not  have  availed  defendant.  He  saw  fit 
however.  In  the  complaint  which  he  actual- 
ly served,  to  waive  the  fraud  and  to  sue  on 
the  contract  as  valid  and  existing.  If  no  an- 
swer had  been  interposed  thereto,  and  Judg- 
ment bad  been  duly  entered,  that  Judgment 
would  have  barred  another  action  by  plain- 
tiff against  defendant  for  damages  In  de- 
ceit The  new  matter  In  the  reply  was  ob- 
viously Inconsistent  with  the  theory  plaintiff 
adopted  in  his  complaint  It  asserted  fraud 
in  obtaining  the  contract    It  was  inherently 


•For  other  caics-  see  same  topic  and  isctloa  NUMBBR  in  Dec.  ft  Am.  Digs.  1907  to  data,  ft  Reporter  Indexee 


Digitized  by  VjOOQ  l€ 


MUuU 


MAR  T.  SHEW  FAN  QUL 


821 


repagnant  to  the  complaint,  whfSh  songht 
recovery  on  the  contract.  The  trial  pourt 
tberetore,  properly  struck  It  out  Common-law 
principles  of  pleading  necessitated  Its  order. 
The  statutes  of  this  state  lncori>orate  the  cob>- 
mon  law.  Section  4134,  Rev.  Lews  1005,  pro- 
vides  In  part:  "If  the  answer  contain  new 
matter  not  demurred  to,  the  plaintiff  shall  re- 
ply thereto,  denying  the  averment  controverted 
by  him,  or  averring  that  he  has  not  luowl- 
edge  or  Information  thereof  sufficient  to  form 
a  belief,  or  alleging  any  new  matter,  not 
Inconsistent  with  the  complaint,  constituting 
a  defense  thereto."  That  the  case  arose  out 
of  the  bankruptcy^  act  does  not  change  the 
niles  of  pleading.  Plaintiff  was  bound  by  his 
allegations  in  his  complaint  on  the  contract 

The  authorities  to  which  plaintiff  has  re- 
ferred us  justify  no  change  In  this  reasoning 
or  condnslon.  A  nnmber  of  them  Involved 
different  proceedings.  Thus  in  Ooodman  v. 
Herman,  172  Mo.  344,  72  S.  W.  546,  60  I* 
R.  A.  885,  the  proceeding  was  to  revive  a 
Judgment.  So  in  Johnson  v.  Joslyn,  45  Wash. 
310.  88  Pac.  824,  it  was  held  that  a  Judg- 
ment on  a  note  alleged  to  have  been  obtained 
by  fraud  was  a  debt  proceeding  under  the 
bankruptcy  act.  So  in  Lee  v.  Tarplln,  194 
Mass.  47,  79  N.  E.  786  It  was  said:  "The 
original  liability  [on  a  Judgment]  was  for 
obtaining  property  under  false  pretenses." 
In  a  number  of  other  cases  the  action  itself 
was  in  deceit  Thus  in  Rowell  v.  Rlcker, 
79  Vt  552,  66  Atl.  569,  the  declaration  pre- 
sented a  case  containing  all  the  elements  of 
fraud.  And  see  Katzenstein  v.  Reid,  41 
Tex.  Civ.  App.  106,  91  S.  W.  369.  In  Schroe- 
der  V.  Frey,  60  Hun,  53,  14  N.  Y.  Supp.  71, 
the  action  was.  to  recover  goods  furnished 
which  were  alleged  to  have  been  obtained  by 
fraud.  In  Mackel  v.  Rochester,  14  Am. 
Bankr.  Rep.  429,  135  Fed.  004,  the  action  was 
brought  by  a  trustee  and  was  based  upon  al- 
leged fraud.  Remington  on  Bankruptcy,  p. 
1618,  {  2750,  cites  on  this  point  the  case 
last  named  only  and  Is  not  inconsistent  with 
the  conclusion  here  reached.  In  Nelson  ▼. 
Petterson,  131  111.  App.  448,  the  action  was 
in  the  form  of  assumpsit,  but  was  construed 
to  have  been  on  the  original  tort  for  the  al- 
leged swindling  of  plaintiff  by  defendant.  In 
the  Matter  of  New  York  T.  Co.,  20  Am. 
Bankr.  Rep.  25,  159  Fed.  688,  86  O.  C.  A.  556, 
the  complaint  sought  to  recover  damages  be- 
cause of  death  by  wrongful  act  In  Brown  & 
Adams  V.  United  Button  Co.,  149  Fed.  48,  79 
C.  C.  A.  70,  8  L.  R.  A.  (N.  S.)  961,  the  claim 
litigated  was  for  unliquidated  damages  in 
connection  with   a   contractual   relationship. 

Of  the  cases  most  nearly  sustalnhig  plain- 
tiffs claim,  ArgaU  v.  Jacobs,  87  N.  Y.  110. 
41  Am.  Rep.  357,  Involved  a  declaration  set- 
ting forth  two  promissory  notes,  and  an  an- 
swer alleging  a  discharge  in  bankruptcy.  No 
reply  was  necessary  under  the  statute.  No 
application  was  made  in  accordance  with  the 


legislative  provisions  on  that  anbject  The 
difference  in  statutory  requirement  differenti- 
ates this  case.  In  Bank  of  N.  A.  T.  Crandall, 
87  Mo.  208,  there  was  complaint  answer,  and 
reply  similar  to  the  one  at  bar.  The  question 
of  pleading  here  argued  does  not  appear  to 
have  been  there  considered  or  determined.  In 
Blackman  v.  McAdams,  131  Mo.  App.  408,  111 
S.  W.  599,  the  complaint  was  on  a  promissory 
note ;  the  answer,  a  discharge  in  bankruptcy ; 
the  reply,  that  the  note  was  a  liability  aris- 
ing out  of  defendant's  fraud.  The  court 
held  that  the  note  was  not  obtained  by  false 
pretenses  or  representations.  The  other  au- 
thorities to  which  we  are  referred  do  not  ap- 
pear relevant  It  follows  that  the  order  of 
the  trial  court  must  be  and  hereby  Is,  af- 
firmed. 
Affirmed. 


MAR  V.  SHEW  FAN  QUI  et  al. 
(Supreme  Court  of  Minnesota.    July  16,  1909.) 

1.  Tbiai.    (I    814*)  —  Uboino    OB    COEBCUrO 

AOBEEIIENT  BT  JuBT. 

Though  the  trial  court  in  its  discretion  may 
urge  upon  a  disagreeing  jury  a  further  consid- 
eration of  the  case,  in  the  hope  that  an  agree- 
ment may  be  reached,  it  exceeds  proper  limits 
when  it  attempts  to  coerce  a  verdict  by  undue 
means. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  {{  747,  748;  Dec.  Dig.  f  314.»] 

2.  Tbial    (I    314*)  — Ubqing    ob    Coebcing 

AORKEUZNT  BT  JUBT. 

The  jury  reported  their  inability  to  agree, 
whereupon  toe  court  said  to  them,  among  other 
things:  "The  facts  are  plain.  There  is  no  law 
in  this  case.  •  *  *  and  I  do  not  feel  that 
I  can  let  you  go  until  you  return  a  verdict." 
Held,  an  improper  coercion  of  the  jury. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  fS  747,  748;   Dec.  Dig.  |  314.*] 

(Syllabus  by  the  Court.) 

Appeal  from  Municipal  Court  of  Minneapo- 
lis;  Charles  L.  Smith,  Judge. 

Action  by  James  L^  Mar  against  Shew 
Fan  Qui  and  others,  doing  business  as  Quan 
Lee  Lung  Kee  &  (?o.  Verdict  for  plaintilT, 
and  from  an  order  denying  a  new  trial,  de- 
fendants appeal.    Order  reversed. 

Hall  &  Kolllner,  for  appellants.  Bardwell 
&  Levy,  for  respondent 

BROWN,  J.  Action  to  recover  money  al- 
leged to  have  been  lost  by  plaintiff  at  gam- 
bling rooms  operated  by  defendant  In  the 
city  of  Minneapolis.  Plaintiff  had  a  verdict 
and  defendant  appealed  from  an  order  deny- 
ing a  new  trial. 

A  large  number  of  errors  are  assigned  and 
discussed  in  the  briefs.  One  in  particular, 
charging  irregularities  in  the  proceedings 
below,  received  the  greatest  attention  on  the 
argument  and  in  the  briefs.  This  related  to 
efforts  on  the  part  of  the  court  and  counsel, 
acting  under  section  4664,   Rev.  Laws  1905, 


•For  other  cases  see  same  topic  and  section  NUMBIiR  In  Dec.  ft  Am.  Digs.  1907  to  dat«,  t  Reporter  Idezas 
122N.W.-21 


Digitized  by 


Google 


322 


122  NORTHWESTERN  REPORTER. 


(Mlniu 


and  occupying  nearly  two  days,  to  discover 
the  form  of  oath  administered  nnder  the 
laws  of  China,  on  the  theory  that  It  was 
more  binding  on  the  conscience  of  Chinamen 
than  our  own.  Many  of  the  assignments 
present  unimportant  matters  and  will  receive 
no  separate  consideration.  The  error  pres- 
ently to  be  mentioned  reverses  the  case,  so 
we  deem  it  unnecessary  to  determine  wheth- 
er the  proceedings  relative  to  a  Chinese  oath 
constituted  such  Irregularity  as  to  Justify  a 
new  trial.  We  may  say  In  passing,  however, 
that  If  the  method  of  administering  the  oath 
to  witnesses  In  some  foreign  country  cannot 
be  ascertained  in  less  than  two  days'  effort, 
the  court  would  be  fully  Justified  In  declin- 
ing to  make  It,  In  admonishing  the  witnesses 
in  an  emphatic  way  of  the  consequences  of 
perjury  under  the  laws  of  this  state,  and 
proceeding  with  the  trial  according  to  our 
own  forms  of  procedure. 

The  principal  Issue  in  the  case,  namely, 
whether  plaintiff  had  lost  money  at  the  de- 
fendanf  8  gaming  table,  was  closely  contest- 
ed on  the  trial,  and  the  evidence  was  sharp- 
ly conflicting.  The  case  was  given  to  the 
Jury  under  proper  Instructions,  and  they  re- 
tired for  deliberation.  After  being  out  some 
time,  the  record  does  not  say  how  long,  the 
Jury  reported  to  the  court  that  they  were  un- 
able to  agree  upon  a  verdict,  whereupon  the 
court  gave  theih  the  following  instructions: 
"Gentlemen,  I  don't  know  any  more  about 
bow  you  stand  In  this  matter  than  some  for- 
eigner in  a  foreign  land;  but  I  wish  to  say 
this:  It  is  your  duty  to  act  honestly  and 
conscientiously  in  your  delilierations.  No 
one  or  two  men  have  a  right  to  get  off  in  a 
comer  and  deliberately  refuse  to  discuss  and 
argue  the  testimony  presented  to  you.  One 
or  two  Jurors  are  not  Justified  in  holding 
out  and  blocking  a  Jury,  unless  they  feel 
morally  certain  that  they  are  right.  You  are 
sent  there  to  deliberate,  and  to  discuss  and 
argue  with  each  other,  and  try  conscientious- 
ly to  come  to  a  conclusion.  This  is  not  a 
case  where  you  should  not  come  to  a  verdict 
The  facts  are  plain.  There  is  no  law  in  this 
case.  It  is  a  plain,  simple  question  of  fact, 
and  you  are  Just  as  able  to  decide  that  ques- 
tion as  any  12  men  we  can  get;  and  I  do 
not  feel  that  I  can  let  you  go  until  you  return 
a  verdict"  The  Jury  again  retired,  and  soon 
thereafter  brought  In  a  verdict  for  plaintiff, 
assessing  bis  damages  at  $250.  Plaintiff 
brought  his  action  to  recover  $500,  and  testi- 
fied that  he  lost  that  amount  at  defendant's 
place  of  business.  Bo  that  the  verdict  was 
evldoitly  a  compromise,  and  the  result  of 
the  court's  statement  that  he  would  not  dis- 
charge the  Jury  until  they  agreed  upon  a 
verdict 

This  action  and  instruction  of  the  court  is 
assigned  as  error.  We  are  clear  that  it  is 
fatal  to  the  verdict  This  was  strictly  a  Ju- 
ry case,  depending  upon  conflicting  evidence. 


and  in  view  of  the  record  before  us  it  is  not 
at  all  surprising  that  the  Jury  could  not 
agree.  Both  parties  had  the  right  to  a  con- 
scientious verdict  from  the  Jury,  free  from 
undue  influence  or  coercion  by  the  court; 
and  though  it  is  a  thoroughly  settled  practice 
that  the  court  may,  in  the  exercise  of  its 
discretion,  where  Jurors  report  their  inabili- 
ty to  agree,  urge  upon  them  a  further  con- 
sideration of  the  case  in  the  hope  that  an 
agreement  may  be  reached  (Watson  v.  Rail- 
way Co.,  63  Minn.  551,  55  N.  W.  742;  Gib- 
son V.  Railway  Co.,  55  Minn.  177,  66  N.  W. 
686,  43  Am.  Bt  Rep.  482),  it  exceeds  proper 
limits  in  bringing  about  an  agreement  by 
threats  of  long-continued  confinement  in  the 
Jury  room,  or  other  undue  or  coercive  meth- 
ods. That  the  Jury  felt  constralued  to  report 
a  verdict  of  some  kind  in  this  case  is  quite 
clear,  and  that  it  was  produced  by  the  re- 
mark of  the  court  that  the  case  was  a  sim- 
ple one,  and  that  the  Jury  would  not  t>e  dis- 
charged until  they  had  returned  a  verdict.  Is 
equally  clear.  Green  v.  Telfair,  11  How, 
Prac.  (N.  Y.)  261;  Slater  v.  Mead,  63  How. 
Prac.  (N.  Y.)  57;  Brooks  v.  Berth,  98  Mo. 
App.  89,  71  8.  W.  1008;  Twiss  v.  Railway 
Co.,  61  App.  Div.  288,  70  N.  Y.  Supp.  241; 
Hagan  v.  Railway  Co.,  79  App.  DIv.  526,  80 
N.  Y.  Supp.  680;  Phoenix  Ins.  Co.  v.  Moog, 
81  Ala.  335,  1  South.  lOS;  Hancock  v.  Elam, 
3  Baxt  (Tenn.)  83.  For  this  error  a  new  tri- 
al Is  granted. 
Order  reversed. 


In  re  BUZALSKY'S  ESTATE. 

BUZALSKY  et  al.  v.  BDZALSKY  et  al. 

(Supreme  Court  of  Minnesota.    July  16,  1900.) 

1.  NkW  TBIAI.  (§   lie*)— Tll£E  roB  Apfuca- 
TION. 

Where,  in  an  equitable  action,  certain  of 
the  isBues  presented  oy  the  pleadings  are  sub- 
mitted to  a  jury,  and  they  return  a  verdict 
thereon,  the  defeated  party  may  apply  for  a 
new  tnal  of  the  issue  or  luues  so  submitted, 
without  waitine  for  findings  by  the  court  upon 
the  remaining  Issues,  where  the  verdict  Is  de- 
cisive of  the  case. 

[E>d.  Note.— For  other  cases,  see  New  Trial, 
Cent  Dig.  {  238 ;   Dec.  Dig.  I  116.*] 

2.  AppEAi    AND    £:bbob    (JS    977*)— Revibw— 

DiSCBETIOK    OF    CODBTP— ObAHTINO    OF   NEW 

Tbial. 

Evidence  held  not  so  clearly  in  favor  of 
the  verdict  as  to  justify  the  reversal  of  an  or- 
der granting  a  new  tnal  on  the  ground  that 
the  evidence  did  not  sustain  it 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  I  3860;    Dec.  Dig.  ^  977.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Steele  County; 
Thomas  S.  Buckfaam,  Judge. 

In  the  matter  of  the  estate  of  Jacob  Bnzal- 
sky,  deceased.  From  an  order  allowing  the 
probate  of  the  will  on  the  application  of  Ja- 
cob Bnzalsky  and  others,  Theodore  Basal- 
sky  and  others  appeal.    Affirmed. 


•For  other  cssm  u«  tame  topic  anV  ■•ctlon  NUMBER  In  Dec.  *  Am.  Dls*.  1907  to  data,  *  Reporter  laducM 


Digitized  by 


Google 


Minn.) 


IN  RE  BUZALSEY'S  ESTATE. 


823 


John  Moonan  and  F.  A.  Alexander,  for  ap- 
pellantB.    Leacb  &  Belgard,  for  respondents. 

BROWN,  J.  Jacob  Buzalsky  died  In  Jan- 
nary,  1908,  leaTlng  what  purported  to  be 
his  last  will  and  testament,  which  disposed 
of  all  property  posBessed  by  him  at  the  time 
of  his  death.  He  settled  In  Steele  county 
about  the  year  ISSO,  with  his  wife  and  four 
children.  One  child  subsequently  died,  so 
that  three  only  of  these  children  surrived 
talm.  He  brought  with  him  and  installed  In 
his  home,  at  the  time  of  his  location  In  Steele 
connty,  a  woman,  named  Frances  Jowltzky, 
by  whom  he  had  four  other  children,  one  of 
whom  also  died,  and  three  survived  at  his 
death.  His  lawful  wife  died  in  May,  1904, 
and  on  June  14th  of  the  same  year  he  mar- 
ried the  woman  Frances,  who  survived  him 
and  Is  one  of  the  beneficiaries  under  the  will. 
Ab  we  understand  the  record,  all  children 
by  this  woman  were  bom  before  the  death 
of  the  lawfnl  wife  and  while  she  was  a  mem- 
ber of  deceased's  household.  At  the  time 
of  his  death  deceased  was  the  owner  of  a 
farm,  consisting  of  160  acres,  equipped  with 
fanning  utnislls  and  live  stock  of  the  yal- 
ne  of  several  thousand  dollars,  and  about 
$1,900  cash  on  deposit  in  one  of  the  Owa- 
tonna  banks.  By  bis  will  he  made  ample 
provision  for  his  widow,  the  second  wife, 
gare  to  each  of  the  children  by  the  first  wife 
$25,  and  the  balance  of  his  estate  he  divid- 
ed between  the  children  by  the  woman, 
Frances  Jowitzky,  with  whom  he  intermar- 
ried, as  already  stated,  after  the  death  of 
his  lawful  wife,  and  after  the  birth  of  these 
children.  ' 

The  will  was  duly  presented  to  the  probate 
court  for  allowance,  and  the  children  by  the 
first  wife,  now  full  grown  and  married,  inter- 
posed a  contest  and  objected  to  its  allow- 
ance on  the  grounds  (1)  that  the  Instrument 
was  not  the  last  will  of  deceased;  (2)  that 
it  was  not  executed  as  required  by  law;  (3) 
if  It  was  deceased's  will,  and  properly  exe- 
cuted, that  Its  execution  was  procured  by 
nndne  inflnence;  and  (4)  that  deceased  was 
not  at  the  time  of  sound  and  disposing  mind. 
The  probate  court  allowed  the  will,  where- 
upon contestants  appealed  to  the  district 
conrt  In  that  court  only  two  questions  were 
raised:  (1)  Whether  the  will  was  properly 
executed;  and  (2)  If  so,  whether  its  execu- 
tion was  procured  by  undue  Influence.  The 
second  question  was  submitted  to  a  jury;  the 
first  being  reserved  for  determination  by  the 
court  The  Jury  found  that  the  will  was 
procured  by  undue  influence,  whereupon  the 
proponents  moved  for  a  new  trial  on  sever- 
al grounds,  among  others  that  the  verdict 
was  not  Justified  by  the  evidence.  The  mo- 
tion was  granted  expressly  upon  the  ground 
just  m«itloned.  From  this  order  contestants 
appealed  to  this  conrt 

It  is  contended  by  appellants  (1)  that  the 
motion  for  a  new  trial  was  premature,  as  It 
could  not  properly  be  made  until  after  the 


court  had  disposed  of  the  reserved  question, 
viz.,  whether  the  will  was  in  fact  that  of  de- 
ceased, and  findings  of  fact  and  conclusions 
of  law  had  been  made  and  filed;  and  (2)  that 
the  CTldence  conclusively  shows  that  the  will 
was  procured  by  undue  Influence,  and  that  it 
was  error  to  set  aside  the  verdict  so  flndlng. 

1.  There  was  no  error  in  entertaining  the 
motion  for  a  new  trial  of  the  issue  submit- 
ted to  the  Jury  before  findings  and  order  for 
Judgment  were  made  and  filed.  The  ver- 
dict that  the  will  was  procured  by  nndne  in- 
fluence completely  disposed  of  the  case  ad- 
versely to  the  contestees,  and  the  case  was 
in  precisely  the  situation  of  an  ordinary  ac- 
tion after  verdict  rendered.  The  court  was 
bound  by  the  verdict  and  could  not  Ignore 
it  Niggeler  v.  Manrln,  84  Minn.  118,  24  N. 
W.  369;  Relder  v.  Walz,  93  Minn.  399,  101 
N.  W.  601.  No  further  flndings  were  neces- 
sary to  a  flnal  Judgment,  and  the  motion  for 
a  new  trial  was  properly  made.  In  some  of 
the  states,  under  the  old  chancery  practice, 
where  the  verdict  in  cases  of  this  kind  is 
merely  advisory,  and  not  conclusive  upon 
the  court  flndings  and  order  for  Judgment 
would  be  necessary  before  a  new  trial  could 
be  applied  for;  but  under  our  statutes  the 
verdict,  unless  set  aside,  is  final,  and  may 
be  proceeded  against  as  in  other  actions. 
Such  was  the  practice  followed  In  Marvin 
V.  Dutcher,  26  Minn.  891,  4  N.  W.  685.  We 
discover  nothing  In  Meighen  v.  Strong,  6 
Minn.  177  (Gil.  Ill)  80  Am.  Dec.  441,  indi- 
cating irregularity  In  this  practice. 

2.  The  question  whether  the  evidence  Is  so 
far  condnsive  In  favor  of  the  verdict  as  to 
Justify  a  reversal  of  the  order  granting  a 
new  trial  requires  no  extended  discussion. 
Motions  for  new  trials  on  the  ground  that 
the  verdict  is  not  sustained  by  the  evidence 
are  addressed  to  the  discretion  of  the  trial 
court  to  be  interfered  with  by  this  court 
only  when  the  decision  of  that  court  is  clear- 
ly and  palpably  against  the  evidence.  We 
have  examined  the  evidence  In  this  case  with 
care,  and,  though  we  find  some  strong  items 
tending  to  show  the  exercise  of  undue  in- 
fluence over  deceased  by  his  second  wife,  yet 
we  cannot  say  that  taken  as  a  whole,  the 
evidence  palpably  sustains  the  verdict  of  the 
Jury.  The  learned  trial  Judge  had  the  wit- 
nesses befbre  him,  and  was  in  better  position 
to  weigh  the  evidence,  In  connection  with  the 
circumstances  shown,  than  members  of  this 
court  with  only  the  cold  record  before  them. 
It  appears — at  least  there  is  evidence  tend- 
ing to  show — that  deceased  in  his  lifetime 
made  substantial  provision  for  two  of  the 
children  by  his  first  wife,  and  that  he  in 
fact  neglected  only  his  daughter,  who,  it  is 
claimed,  married  against  his  will.  To  her  by 
his  will  he  gave  $25.  But  mere  discrimina- 
tion between  children  in  the  distribution  of 
property  by  will  is  no  ground  for  setting  the 
will  aside.  Deceased  was  under  natural  ob- 
ligations to  the  children  by  the  second  wife, 
whether  bom  before  or  after  his  marriage  to 


Digitized  by  VjOOQ  l€ 


524 


122  NORTHWESTERN  REPORTER. 


{HUnn- 


.ber,  and  the  fact  that  he  was  partial  to  them 
furnishes  no  ground  for  Invalidating  hU  will. 
The  case  Is  wholly  unlike  Tyner  v.  Varien, 
97  Minn.  181,  106  N.  W.  898.  There  a  sec- 
ond wife  persuaded  her  weak-.mlnded  hus- 
band to  will  all  his  property  to  her  relatives, 
having  no  claim  upon  him,  to  the  entire  ex- 
clusion of  hlB  chlldi-en.  A  conclusive  case  of 
gross  undue  influence  was  there  made  out 
Not  BO,  however,  In  the  case  at  bar.  The 
most  that  can  be  said  in  this  case  is  that  the 
evidence  is  su£Bclent  to  support  the  claim  of 
undue  influence,  if  approved  by  the  trial 
court,  but  Is  far  from  conclusive. 
Order  affirmed. 


GRUENBERG   v.   HEYWOOD   MFG.   CO. 
(Supreme  Court  of  Minnesota.    'July  16,  1009.) 
Master  and  Sebvant  (§8  286,  288,  289*)— In- 

JUBT  TO  Sebvant— Quest;ion8  fob  Jubt. 
In  a  personal  injury  action,  it  is  held  that 
the  evidence  made  a  case  for  the  jury  upon  the 
issues    of    negligence,    contributory    neglieence, 
and  assumption  of  risk. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  Si  1010-1050,  1068-1132; 
Dec  Dig.  8$  286,  288,  289.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Hennepin  Coun- 
ty;  John  Day  Smith,  Judge. 

Action  by  Isidore  Grueuberg  against  the 
Heywood  Manufacturing  Company.  Verdict 
for  plaintiff.  From  an  order  denying  motion 
for  Judgment  notwithstanding  the  verdict  or 
for  a  new  trial,  defendant  appeals.    Affirmed. 

Brown,  Albert  &  Guesner,  for  appellant 
H.  E.  Fryberger,  for  respondent 

ELLIOTT,  J.  In  an  action  to  recover  dam- 
ages for  personal  injuries  alleged  to  have 
been  caused  by  the  negligence  of  the  defend- 
ant, plaintiff  recovered  a  verdict  for  $1,000, 
and  the  defendant  appealed  from  an  order 
denying  its  motion  for  Judgment  notwith- 
standing the  verdict  or  for  a  new  trial.  The 
case  presents  the  usual  questions  of  negli- 
gence, contributory  negligence,  and  assumpr 
tion  of  risk. 

The  plaintiff,  a  young  man  about  18  years 
of  age,  was  In  the  employ  of  the  defendant, 
and  at  the  time  the  accident  occurred  was  en- 
gaged in  feeding  a  printing  press,  which  had 
been  adapted  to,  and  was  being  tjsed  for  the 
purpose  of,  cutting  material  for  making  box- 
es. The  injury  was  caused  by  the  operator's 
hand  being  caught  between  the  platen  and  the 
bed  of  the  press  which  he  was  feeding,  and 
the  claim  is  that  the  accident  was  due  to  the 
negligence  of  the  employer  in  falling  to  fur- 
nish the  employs  with  a  reasonably  safe 
place  to  work  and  with  reasonably  safe  and 
suitable  appliances  and  tools.  More  Bpeclflc- 
ally  stated  it  is  claimed  that  the  machine 
was  defective  and  out  of  repair,  that  it  was 
tfelng  run  at  a  high  rate  of  speed,  that  the 


light  was  insufficient,  and  that  the  employs 
was  not  warned  and  properly  iDstmcted  as 
to  the  dangers  of  the  work  under  the  existing 
conditions.  There  was  evidence  tending  to 
show  that  the  employs  was  ordered  by  the 
foreman  to  do  the  work  in  the  particular  way 
in  which  he  was  doing  it  at  the  time  of  the 
injury. 

As  to  the  negligence  of  the  defendant,  the 
evidence  made  out  a  case  which  Justified  the 
court  in  submitting  the  issue  to  the  Jury,  and 
the  same  is  true  as  to  the  issue  of  contribu- 
tory negligence.  It  appeared  that  because  of 
the  defective  condition  of  the  machine  the 
cardboards,  after  being  cut,  adhered  to  the 
bed,  so  that  it  was  necessary  to  remove  them 
by  hand.  The  plaintiff  testifled  that  he  call- 
ed the  attention  of  the  foreman  to  this  fact, 
and  was  Instructed  to  use  his  hand  for  that 
purpose.  Whether,  under  the  circumstances 
and  conditions,  it  was  negligent  for  him  to  do 
so,  was  a  fair  question  for  the  Jury  to  decide. 

A  more  serious  question  arises  upon  the 
claim  that  the  young  man  assumed  the  risks 
incident  to  the  work.  The  claim  is  made  that 
a  short  time  before  the  injury  occurred  the 
attention  of  the  foreman  was  called  to  the 
defective  condition  of  the  machine,  and  that 
he  then  directed  the  employs  to  continue 
working  with  it  until  the  closing  hour  and 
that  he  would  then  have  it  repaired.  It  is  not 
very  clear,  however,  that  this  promise  or 
statement  was  made  In  view  of  the  fact  that 
It  was  dangerous  for  the  employs  to  continue 
the  work  under  the  conditions.  The  defend- 
ant claims  that  neither  party  had  the  ques- 
tion of  danger  to  the  employs  in  mind,  and 
that  the  repairs  were  to  be  made  for  the  pur- 
pose of  preventing  the  destruction  of  stock. 
The  evidence  is  not  very  conclusive;  bnt,  as 
the  issue  was  submitted  under  proper  instruc- 
tions, we  will  not  interfere  with  the  conclu- 
sion which  was  reached  by  the  Jury  and  ap- 
proved by  the  trial  court 

There  is  nothing  In  the  case  which  requires 
extended  discussion.  The  Issues  were  for 
the  Jury  to  determine,  and  we  find  no  errors 
of  law  that  would  Justify  the  reversal  of  the 
decision  of  the  trial  court 

The  order  is  therefore  affirmed. 


MICHAUD  et  al.  v.  ERICKSON  et  al. 

(Supreme  Court  of  Minnesota.     July  9,  1909.) 

1.  Bonds   (§   52*)— Pabttes— Aqbeement  fob 
Benefit  of  Third  Pebson. 

The  owners  in  common  of  a  certain  block, 
through  one  of  their  number,  acting  on  behalf 
of  all,  entered  into  a  contract  with  E.,  where- 
by the  latter  agreed  to  grade  said  block  and  de- 
posit a  stipulated  amount  of  dirt  taken  there- 
from upon  another  block  owned  by  two  of  the 
owners  of  the  block  from  which  the  dirt  was 
to  be  taken.  The  one  in  whose  name  the  iK>n- 
tract  was  made  bad  do  interest  in  this  blocli. 
To  secure  the  performance  of  the  contract,  a 
bonding  company  issued  a  bond,  running  to  the 
person  in  whose  name  the  contract  was  made. 


•For  other  case^  see  saoK  toplo  and  aectlon  NUMBER  la  Dec.  tc  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  LjOOQ  IC 


mniL) 


UICHAUD  T.  ERICSSON. 


325 


E.  did  a  part  of  the  gradins;  but,  instead  of 
placing  the  dirt  npon  the  block  in  question,  as 
required  by  his  contract,  he  appropriated  the 
■ame  to  his  own  nse.  Demand  hieing  made  up- 
on the  bonding  company,  it  placed  an  agent  in 
charge  of  the  work  and  completed  the  same,  but 
refused  to  comply  with  that  part  of  the  contract 
which  required  the  dirt  to  be  placed  upon  the 
blocli  in  qnestion.  In  an  action  by  the  owners 
of  the  lot  upon  which  the  dirt  was  to  be  placed 
against  B.  and  the  bonding  company,  these  facts, 
among  other  matters,  were  alleged.  The  trial 
court  properly  oTerruled  a  demurrer  to  the  com- 
plaint. 

[Ed.  Note.— For  other  cases,  see  Bonds,  Dec. 
IMg.  {  52.«] 

2.  AaBKEUXiri  fob  Bknkfit  or  Third  Peb- 

80N. 

The  complaint  states  facts  sufficient  to 
sihow  that  the  contracts  were  made  for  the  ben- 
efit of  the  plaintiffs,  that  their  interest  appear- 
ed on  the  face  of  the  first  contract,  that  the  paiv 
ty  in  whose  name  the  contracts  with  E.  and  the 
bonding  company  were  made  was  under  obliga- 
tion to  the  plaintiffs,  and  that  the  plaintiffs,  for 
whose  benefit  the  contract  was  made,  were  en- 
titled to  maintain  the  action. 

3.  AcTioic  (ft  27*)— Natubk  ahd  Fobm— Con- 

TBACT  OB  TORT. 

If  the  bonding  company,  after  placing  its 
agent  in  charge  of  the  work,  refused  to  comply 
with  the  contract,  and  appropriated  the  earth, 
aa  alleged  in  the  complaint,  it  became  liable  in 
tort  to  the  owners  of  the  lot  which  was  to  be 
filled  np. 

[Ed.  Note.— For  other  cases,  see  Action,  Cent 
Dig.  Si  160-162 ;    Dec.  Dig.  {  27.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Ramsey  Coun- 
ty;  Olin  B.  Lewis,  Judge. 

Action  by  Desire  H.  Mlcband  and  anoth- 
er against  Nils  Erlckson  and  the  American 
Bonding  Company  of  Baltimore.  From  an 
order  overruling  a  demurrer  to  the  com- 
plaint, defendants  appeal.    AflSrmed. 

Fltzhngh  Bums  and  John  D.  O'Brien,  for 
appellants.  Walter  L.  Chapin,  for  respond- 
ents. 

ELLIOTT,  J.  This  is  an  appeal  from  an 
order  OTermling  a  general  demurrer  Inter- 
posed by  the  American  Bonding  Company 
to  each  of  two  causes  of  action  alleged  in 
tbe  complaint  The  action  was  bh>ught  by 
D.  H.  Mlchaod  and  E.  S.  Warner  against 
Nils  Erlckson  and  tbe  American  Bonding 
Company  of  Baltimore,  and  the  complaint 
alleges.  In  substance,  as  a  first  cause  of 
action:  That  on  or  about  the  28th  day  of 
February,  1906,  the  defendant  Erlckson  and 
one  Wm.  C.  Read,  who  acted  therein  on  be- 
half of  himself  and  tbe  plaintiffs  and  cer- 
tain other  parties,  entered  into  a  written 
contract  which  contained  the  following  pro- 
visions: "This  agreement,  made  and  en- 
tered into  on  the  28th  day  of  February,  1906, 
by  and  between  Wm.  C.  Read  and  Nils 
Erlckson,  both  of  St.  Paul,  Minnesota,  wit- 
nesseth:  The  said  Erlckson,  for  the  con- 
sideration hereinafter  agreed  to  be  paid 
him,  shall  grade  the  following  described  par- 
cels of  land,  located  In  the  city  of  St  Paul, 


Ramsey  county,  Minnesota,  namely:  All  of 
block  37  of  Summit  Park  addition  to  said 
city  of  St  Paul,  except  lot  one  (1)  and  lots 
ten  (10)  to  nineteen  (19),  Inclusive,  of  said 
block — and  shall  haul  the  material  excavated 
for  the  purposes  of  said  grading  and  deposit 
the  same  as  follows:  About  four  thousand 
(4,000)  cubic  yards  thereof  shall  be  deposited 
on  lots  seven  (7),  eight  (8),  nine  (9),  and  ten 
(10),  of  block  25,  of  said  Summit  Park  addi- 
tion to  the  city  of  St.  Paul,  namely,  the 
property  belonging  to  said  William  C.  Read; 
about  fourteen  thousand  (14,000)  cubic  yards 
thereof  he  shall  haul  and  deposit  on  lots  six 
(6),  seven  (7),  and  eight  (8),  of  block  89,  of 
«aid  Summit  Park  addition,  namely,  the 
property  belonging  to  Mlchaud  &  Warner; 
and  3,000  cubic  yards,  more  or  less,  shall  be 
deposited  on  the  property  of  Smith  &  Taylor 
on  the  northwest  corner  of  Goodrich  and 
Lexington  avenue,  namely,  •  •  • — as  di- 
rected by  the  owners;  It  being  Understood 
that  the  grading  of  the  lots  In  said  block  37 
shall  be  done  In  accordance  with  the  speci- 
fications and  grade  stakes  set  by  Jens  Peter- 
son, engineer,  who  shall  fix  the  grade  to 
which  said  property  shall  be  lowered."  Aft- 
er stating  the  character  of  tbe  work,  and  the 
amount  of  consideration,  and  the  manner  of 
its  payment,  the  contract  provides  that  It  Is 
further  agreed  that  said  work  shall  be  com- 
menced within  ten  days  from  this  date  and 
completed  within  four  months,  and  that  said 
Erlckson  shall  at  the  time  of  signing  this 
contract  furnish  and  deliver  to  said  Read  a 
bond  executed  by  some  responsible  surety 
company  in  the  sum  of  at  least  f  1,000  to  in- 
demnify said  Read  against  any  loss  Incurred 
for  failure  on  tbe  part  of  said  Erlckson  to 
perform  the  contract.  The  complaint  alleg- 
es: That  on  February  28,  1906,  the  defend- 
ant Erlckson,  as  principal,  and  the  American 
Bonding  Company,  as  surety,  executed  and 
delivered  to  said  Wm.  C.  Read  a  written  ob- 
ligation, which  is  set  forth  In  full  In  the 
complaint,  by  the  terms  of  which  Eh-ickson 
and  tbe  bonding  company  became  held  and 
bound  Jointly  and  severally  to  Wm.  C.  Read 
In  the  sum  of  $1,000,  subject  to  the  condition 
that  Erlckson  should  fully  and  faithfully 
perform  the  said  contract  with  Read,  which 
Is  described  In  the  bond,  within  the  time  and 
according  to  the  terms  which  were  prescrib- 
ed, and  to  pay  as  they  became  due  all  Just 
claims  for  labor  performed  and  materials 
furnished  in  the  execution  of  the  contract, 
and  save  the  said  Wm.  0.  Read  harmless 
from  all  costs,  charges,  and  expenses  that 
may  accrue  on  the  doing  of  the  work  speci- 
fied in  the  contract  That  the  plaintiffs 
were  at  all  the  times  mentioned  the  owners 
of  lots  6,  7,  and  8,  in  block  39,  of  Summit 
Park  addition,  and  part  owners  In  common 
with  Wm.  C.  Read  and  other  parties  of  all  of 
block  37.  That  Erlckson  excavated  from 
part  of  block  37,  specified  In  the  contract  to 


•For  other  eases  see  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  IndeMS 


Digitized  by  VjOOQ  l€ 


326 


122  NORTHWESTERN  REPORTER. 


(Minn. 


be  graded,  at  least  23,000  cubic  yards  of 
eartb,  but  diverted  and  sold  for  other  pur- 
poses a  large  portion  thereof,  Instead  of 
placing  the  entire  amount  of  earth  on  said 
lots  6,  7,  and  8.  That  said  lots  front  on  Sum- 
mit avenue,  and  are  much  below  grade. 
That  all  of  said  14,000  cubic  yards  of  earth 
Is  needed  to  raise  them  to  the  grade  con- 
formable to  the  grade  of  Summit  avenue. 
That  there  Is  a  great  deficiency  of  eartb  In 
the  neighborhood  of  lots  6,  7,  and  8,  and  that 
It  will  be  impossible  to  secure  and  place  on 
said  lots  the  quantity  of  earth  equal  to  the 
difTerence  between  the  14,000  cubic  yards 
required  by  said  contract  and  the  7.684  cubic 
yards  placed  thereon  by  Elrlckson  without 
expense  amounting  to  the  sum  of  $4,952.20. 
That  Erickson  entered  upon  the  performance 
of  the  contract,  but  failed  to  complete  the 
same,  to  the  damage  of  the  plalntlfTs  In  the 
sum  of  $4,962.20.  That  In  December,  1907, 
the  plaintiffs  demanded  of  the  American 
Bonding  Company  that  It  pay  to  them  the 
sum  of  $1,000,  provided  for  In  said  bond,  on 
account  of  the  damages  caused  by  the  failure 
of  Erickson  to  perform  his  contract,  but  that 
the  bonding  company  refused  to  pay  the 
same. 

For  a  second  cause  of  action  the  plaintiflFs 
realleged:  The  making  of  the  contract  be- 
tween Erickson  and  Read,  as  hereinbefore  re- 
cited, the  failure  of  Erickson  to  complete  the 
contract,  and  a  demand  upon  the  bonding 
company  that  It  perform,  or  cause  Erickson 
to  perform,  his  contract  according  to  Its 
terms;  that  thereupon  the  said  bonding  com- 
pany placed  in  charge  of  said  work,  in  connec- 
tion with  Erickson  and  as  its  representative, 
one  Maurice  P.  Morlarty,  and  assumed  through 
said  Morlarty  to  direct  the  performance  of 
said  work ;  that  thereafter  said  bonding  com- 
pany through  Its  representative,  Morlarty, 
assumed  charge  and  control  of  the  perform- 
ance of '  the  work  under  said  contract, 
with  the  assent  of  Erickson,  and  directed 
how  it  should  be  done,  and  what  should 
be  done  thereunder,  and  exerted  full  con- 
trol over  Erickson  In  such  respect,  and  that 
the  said  bonding  company,  through  Its  rep- 
resentative, Morlarty,  then  and  there  refus- 
ed to  allow  any  of  the  earth  excavated  from 
block  37  to  be  placed  upon  lots  0,  7,  and  8, 
of  block  39,  beyond  the  total  quantity  of  7,- 
864  cubic  yards,  and  did  willfully  and  unlaw- 
fully prevent  said  Erickson,  by  virtue  of  the 
control  It  exercised  over  his  work,  and  by  Its 
counsel,  advice,  and  Instructions,  from  plac- 
ing more  than  that  number  of  cubic  yards  of 
said  earth  on  lots  6,  7,  and  8,  of  block  39,  al- 
though these  plaintiffs  at  all  times  demanded 
of  said  Erickson  and  said  bonding  company 
that  there  be  placed  upon  said  lots  the  full 
quantity  of  14,000  cubic  yards  called  for  by 
said  contract;  that  there  was  excavated  by 
said  Erickson*  from  that  part  of  block  37  spec- 
ified in  the  contract  to  be  graded  at  least 
23.000  cubic  yards  of  the  earth,  at  least  7,000 
cubic  yards  of  which  was  Excavated  by  said 


Erickson  while  said  bonding  company  was 
controlling  him  In  the  performance  of  his 
work,  and  was  actually  engaged  In  the  prose- 
cution thereof  with  said  Erickson,  and  said 
Erickson  and  said  bonding  company  wrong- 
fully and  willfully  diverted,  and  caused  to  be 
sold  for  other  purposes,  at  least  the  quantity 
of  6,236  cnbic  yards  of  earth,  which  was 
available  and  required  by  said  contract  to  be 
placed  upon  lots  6,  7,  and  8,  of  block  39, 
owned  by  these  plaintlffB ;  that  the  plaintiffs 
at  all  times  demanded  of  said  Erickson  and 
said  bonding  company  that  the  full  quantity 
of  14,000  cubic  yards  should  be  placed  upon 
said  lots,  but  that  said  Erickson  and  said 
bonding  company  wrongfully  and  unlawfully 
refused  to  place  thereon  more  than  7,864  cu- 
bic yards;  that  said  lots  are  below  grade, 
and  that  ail  of  said  14,000  cubic  yards  of 
earth  was  and  Is  needed  to  raise  them  to 
grade;  that  there  is  a  great  deficiency  of 
earth  In  the  neighborhood  of  these  lots,  and 
that  It  win  be  impossible  to  procure  and  place 
on  said  lots  a  quantity  of  eartb  equal  to  the 
difference  between  the  14,000  cubic  yards  and 
the  7,864  cubic  yards  placed  thereon  by  Erick- 
son without  great  expense,  amounting  In  all 
to  $4,952.20.  It  Is  then  alleged  that  the  plain- 
tiffs have  been  damaged  to  that  amount  by 
the  action  of  said  Erickson  and  the  bonding 
company  In  refusing  and  falling  to  fill  said 
lots  as  aforesaid.  Judgmmt  was  then  de- 
manded against  Erickson  and  the  bonding 
company  for  the  sum  of  $4,952.20. 

The  first  cause  of  action  as  against  the 
bonding  company,  is  upon  the  contract  con- 
tained In  the  bond.  The  block  from  which 
the  earth  was  to  be  removed  belonged  to 
Read,  MIchaud,  Warner,  and  other  parties. 
Both  Read  and  the  plaintiffs,  therefore,  had 
an  Interest  and  ownership  in  the  earth  which 
was  to  be  and  was  in  fact  removed.  Erick- 
son contracted  with  Read,  and  the  allega- 
tion is  that  Read  acted  as  agent  for  MIchaud 
and  Warner.  The  obligation  of  Erickson  and 
the  bonding  company  was  directly  to  Read; 
but  the  contract  discloses  that  MIchaud  and 
Warner,  who  were  part  owners  of  the  block, 
were  to  receive  a  benefit  from  the  perform- 
ance of  the  contract  by  having  their  individ- 
ual lots  graded  through  the  deposit  thereon  of 
this  earth  in  which  they  were  Interested. 
The  contract  Is  with  Read;  but  these  third 
parties  were  to  receive  a  benefit  therefrom, 
and  under  the  rule  in  Jefferson  v.  Asch,  63 
Minn.  446,  55  N.  W.  004,  25  L.  R.  A.  257,  39 
Am.  St  Rep.  018,  and  Kramer  v.  Gardner, 
104  Minn.  370,  116  N.  W.  925,  they  are  enti- 
tled to  maintain  the  action,  providing  there 
was  an  obligation  to  them  on  the  part  of 
Read.  Such  an  obligation  Is  disclosed  by 
this  record,  and  the  demurrer  to  the  first 
cause  of  action  was  therefore  properly  over- 
ruled. 

The  demurrer  to  the  second  cause  of  ac- 
tion was  olso  properly  overruled.  The  com- 
plaint states  a  cause  of  action  in  tort, .  Inde- 
I  pendent  of  the  contract  by  which  the  bonding 


Digitized  by  VjOOQ  l€ 


Minn.) 


PBET  T.  CITY  OF  BAST  GRAND  FORES. 


827 


company  obligated  Itself  to  the  extent  of 
$1,000.  If,  after  assmnlog  cliarge  of  the  com- 
pletion of  the  work.  It  refused  to  comply  with 
the  contract,  and  appropriated  the  earth  as 
alleged  in  the  complaint.  It  Is  liable  for  the 
damages  resulting  to  the  plalntlCts  therefor. 
Order  affirmed. 


PBBT  ▼.  OITT  OF  EAST  GRA^D  FORKS. 
(Snpreme  Conrt  of  Minnesota.  July  16,  1909.) 
Mttnicipal   Cobpoeatiows   (I   874*)— Public 

IMPBOVESIENTS  —   CONTBACTS  —  ACTIONB  — 
QCTESTIOK    FOB    JTTET— KVIDENCB. 

In  an  action  to  recover  on  an  estimate  of 
work  done  by  a  contractor  under  a  contract  to 
lay  certain  pavement,  it  is  held  that  whether 
the  contractor  was  justified  in  stopping  work 
•ad  whether  the  work  actually  performed  was 
done  substantially  aa  required  by  the  contract 
were  for  the  jury  to  determine.  Upon  both  ia- 
6ues  the  evidence  sustains  the  verdict. 

(EM.  Note.— For  other  cases,  see  Municipal 
Corporations,  Dec.  Dig.  |  374*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Polk  Coun- 
ty:  William  Watts,  Judge. 

Action  by  William  F.  Peet  against  the 
City  of  East  Grand  Forks.  Verdict  for  plain- 
tiff. From  an  order  denying  motion  for 
Judgment  notwithstanding  the  verdict  or  for 
a   new  trial,  defendant  appeals.     Affirmed. 

G.  C.  H.  Corliss  and  D.  T.  Collins,  for  ap- 
pellant M.  D.  Munn  and  Ambrose  TIghe, 
for  respondent 

ELLIOTT,  J.  This  case  presents  anoth- 
er phase  of  the  litigation  which  has  result- 
ed from  the  attempt  of  the  city  of  East 
Grand  Forks  to  grade  Its  public  streets.  Mer- 
chants' Bank  t.  City  of  East  Grand  Forks,  94 
Minn.  246,  102  N.  W.  703;  Peet  v.  City  of 
E.  G.  Forks,  101  Minn.  518,  112  N.  W.  1003 ; 
Peet  V.  City  of  East  Grand  Forks,  101  Minn. 
523,  112  N.  W.  1005;  Thornton  t.  City,  ICC 
Minn.  233,  118  N.  W.  834.  In  1902  P.  H. 
Thornton  entered  into  a  contract  with  the 
city  of  East  Grand  Forks  to  grade,  macada- 
mize, and  curb  its  streets.  The  contract 
covered  five  pieces  of  work,  and  provided 
that  each  piece  should  impose  a  separate 
obligation  on  Thornton,  Independent  of  and 
without  reference  to  any  other  part  of  the 
work.  This  writing  constituted  five  separate 
contracts.  According  to  the  terms  of  the 
general  contract  and  the  plans  and  spcclflca- 
tions,  the  character  of  the  work  and  the 
kind  of  material  required  to  be  used  were 
particularly  specified,  and  the  contractor's 
compensation  fixed  at  a  definite  price  per 
cubic  yard  for  excavation,  a  definite  price 
per  square  yard  for  paving,  and  a  definite 
price  per  lineal  foot  for  curbing.  A  party 
by  the  name  of  Lawson  was  named  as  en-, 
gineer  and  charged  with  the  general  super- 
vision of  the  work,  and  upon  his  monthly  esti- 


mate of  the  work  performed  the  city  agreed 
to  pay  Thornton.  Thornton  entered  upon  the 
performance  of  contract  Ko.  3,  made  ex- 
tensive excavations,  and  performed  other 
acts  In  execution  of  the  contract  and  the  en- 
gineer Issued  to  him  an  estimate  of  the 
amount  and  value  thereof.  This  estimate 
was  presented  to  the  city  council,  and  by 
that  body  approved ;-  but  no  warrant  was  is- 
sued for  Its  payment,  because  there  was  no 
money  in  the  city  treasury  available  for  that 
purpose.  Thornton  then  abandoned  the  work 
and  assigned  and  transferred  the  estimate 
to  William  F.  Peet  who  is  the  respondent  in 
the  present  action. 

In  an  action  by  Peet  against  the  city  th9 
defense  was  interposed  that  Thornton,  hav- 
ing abandoned  his  contract  and  refused  to 
complete  the  same,  was  not  entitled  to  re- 
cover for  the  work  performed,  and,  further, 
that  the  work  so  far  as  It  had  progressed 
was  not  In  accordance  with  the  contract  or 
plans  and  specifications.  The  trial  court 
found  as  a  fact  that  the  work  to  where 
abandoned  was  In  all  respects  in  substan- 
tial compliance  with  the  contract,  and  that 
the  failure  of  the  city  to  pay  the  amount 
of  the  estimate  at  the  time  provided  by 
the  contract  Justified  Thornton  in  abandon- 
ing the  work.  The  defendant  moved  to 
have  the  findings  amended  by  incorporating 
therein,  among  other  matters  findings  to 
the  effect  that  Thornton  violated  the  provi- 
sions of  the  contract  by  falling  to  make  proiK 
er  excavations  for  the  foundation  of  the 
street  and  that  the  engineer's  estimate  was 
fraudulently  issued.  The  motion  was  de- 
nied, and  upon  appeal  to  this  court  It  was 
held  that  as  there  was  evidence  to  suBtaln 
the  finding  of  the  trial  court  to  the  effect 
that  the  work  actually  performed  was  in 
substantial  compliance  with  the  terms  of  the 
contract,  there  was  no  error  In  refusing  to 
make  the  additional  findings,  and  that  the 
failure  of  the  city  to  pay  the  installments  at 
the  time  agreed  upon  justified  the  contractor 
in  abandoning  the  contract  and  entitled  him 
to  recover  the  value  of  the  work  actually  per- 
formed thereunder.  Peet  v.  City  of  East 
Grand  Forks,  101  Minn.  518,  112  N.  W.  lOOIi, 
following  Newton  v.  Highland  Imp.  Co.,  02 
Minn.  436,  C4  N.  W.  114G. 

The  present  action  was  commenced  by  Peet 
to  recover  upon  the  engineer's  estimate  Is- 
sued under  contract  No.  1  which  covered  a 
piece  of  work  to  be  performed  under  the 
general  contract  above  referred  to.  The 
amount  certified  by  the  engineer  to  be  due 
was  $11,701.84,  and  the  action  was  brought 
by  the  assignee  of  the  contractor  to  recover 
this  amount  The  city  Interposed  the  defense 
that  the  contractor  bad  failed  to  substantial- 
ly perform  his  contract  In  the  respect  point- 
ed out  In  the  answer,  and  that  the  estimate 
was  fraudulently  Issued  by  the  engineer  with 
full  knowledge  and  connivance  of  the  con- 


•For  other  evet  see  lanie  topic  and  SMstlon  NUMBER  la  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  ludexee 


Digitized  by  VjOOQ  l€ 


328 


122  NOHTHWESTERN  RBPORTEB. 


(Mlno. 


tractor.  The  case  was  tried  without  a  Jury, 
and  the  court  found  both  defenses  true,  but 
ordered  Judgment  in  favor  of  the  plaintiff  for 
the  difference  between  the  amount  certlQed 
and  the  damage  found  to  have  been  occasion- 
ed to  the  city  by  the  failure  of  the  contract- 
or to  substantially  perform  his  contract  On 
appeal  to  this  court  the  Judgment  was  re- 
versed. Feet  y.  City  of  East  Grand  Forks, 
101  Minn.  523,  112  N.  W.  1005.  The  case  was 
then  retried,  and  the  questions  whether 
Thornton  was  Justified  in  abandoning  the 
work,  and  whether  the  work  actually  done 
was  substantially  done  as  required  by  the 
contract,  were  submitted  to  the  Jury,  which 
found  in  favor  of  the  plaintiff  on  both  Issues, 
and  rendered  a  verdict  against  the  city  for 
$11,432.73.  The  present  appeal  Is  from  an 
order  denying  defendant's  motion  for  Judg- 
ment notwithstanding  the  verdict  or  for  a 
new  trial. 

As  originally  drawn  the  complaint  stated 
a  cause  of  action  upon  the  contract.  After 
the  case  was  remanded,  the  court,  upon  the 
application  of  the  plaintiff  and  over  the  ob- 
jection of  the  defendant,  allowed  the  com- 
plaint to  be  amended  so  as  to,  it  Is  claimed, 
allege  the  right  to  recover  upon  a  quantimi 
meruit,  and  to  allege  a  waiver  by  the  city  of 
strict  performance,  and  also  facts  Justify- 
ing the  application  of  the  doctrine  of  equi- 
table estoppel.  As  we  read  the  original  and 
amended  complaints,  there  is  little.  If  any, 
substantial  difference  between  them;  but, 
however  that  may  be,  the  error.  If  any.  In 
allowing  the  amendment.  Is  not  assigned  as 
error,  and  cannot  be  considered. 

The  claim  that  the  city  Is  estopped,  or 
waived  its  right,  to  assert  that  the  contract 
was  not' strictly  performed  requires  no  con- 
sideration, because  it  was  taken  from  the  Ju- 
ry. As  stated  by  the  appellant  in  its  brief, 
the  court  Instructed  that  "there  was  no  ques- 
tion of  waiver  or  estoppel  In  the  case."  The 
issues  presented  were  thus  clearly  defined, 
and  were  submitted  to  the  Jury  under  in- 
structions which  correctly  stated  the  law. 
The  Jury  were  told  that  the  city  claimed  that 
Thornton  bad  abandoned  the  work  without 
cause,  and  that  In  so  far  as  the  work  was 
done  it  was  not  done  In  substantial  perform- 
ance of  the  contract  Whether  the  contract 
was  abandoned  without  cause  was  left  for 
the  Jury  to  determine,  with  the  Instructions 
that  "failure  by  the  defendant  city  to  make 
payment  according  to  the  terms  of  the  con- 
tract as  the  city  charter,  whether  it  had 
available  funds  or  not,  was  a  breach  of  the 
contract  on  Its  part,  and  Justified  the  aban- 
donment of  the  contract  by  the  contractor." 

The  question  whether  the  work  so  far  as 
performed  was  substantially  as  required  by 
the  contract  was  also  properly  submitted. 
The  evidence  Is  quite  conclusive,  and  need 
not  be  reviewed.  We  have  read  It  all  care- 
fully, and  think  that  It  fully  Justifies  the 
finding  of  the  Jury.  The  court  Instructs 
t^at:    "Substantial  performance  of  a  con- 


tract is  bad  when  a  contractor  gives  the 
other  party  to  the  contract  in  substance  what 
he  bargained  for.  The  rule  as  to  the  sub- 
stantial performance  of  a  contract,  where  of 
necessity  the  owner  of  the  thing  must  retain 
the  benefits  of  the  contract  so  far  as  it  has 
been  {wrformed.  Is  well  settled  in  this  state. 

*  *  *  When  a  contractor  has  In  good  faith 
made  substantial  performance  of  the  terms 
of  a  contract  but  there  are  some  slight  omis- 
sions or  defects,  which  are  readily  remedied, 
so  that  an  allowance  therefor  out  of  the  con- 
tract price  will  give  the  other  party  sub- 
stantially waat  he  bargained  for,  the  con- 
tractor may  recover  the  contract  price,  less 
the  damages  on  account  of  the  omissions. 
But  this  rule  of  substantial  compliance  does 
not  apply  when  the  omissions  or  deviations 
from  the  terms  of  the  contract  and  its  per* 
formance  are  so  substantial  that  an  allow- 
ance out  of  the  contract  price  would  not  give 
the  owner  susbtantially  what  he  contracted 
for.  *  *  <  In  determining  whether  the 
contract  was  substantially  performed,  the 
question  Is  not  whether  the  work  as  done 
was  as  good  or  better  than  It  would  have 
been  If  done  according  to  the  contract  for 
the  defendant  had  a  right  in  law  to  insist 
upon  having  the  contract  carried  oat  in  sub- 
stance according  to  the  contract  and  the  spec- 
ifications, and  was  not  obliged  to  accept  the 
Judgment  of  the  contractor  as  to  whether  an- 
other mode  of  carrying  out  the  contract 
would  produce  as  good  or  better  results. 

*  *  *  Even  If  Thornton  had  made  a  far 
better  Job  of  paving  than  the  contract  called 
for,  •  •  •  Btlll  he  could  not  recover  for 
that,  because  that  would  only  be  a  substan- 
tial compliance  with  the  contract"  This 
seems  to  cover  the  law  as  contended  for  by 
the  appellant  and  If  the  question  of  substan- 
tial performance  was  for  the  Jury  It  was 
submitted  under  instructions  which  are  sub- 
stantially correct 

But  the  appellant  contends  with  much  ear- 
nestness that  the  estimate  of  the  engineer 
was  fraudulent  and  did  not  represent  the 
honest  Judgment  of  that  official,  and  that  the 
doctrine  of  substantial  performance  is  not 
therefore  available  to  the  plaintiff.  That 
would  be  true  if  it  was  shown  that  Thornton 
was  a  party  to  the  fraud,  and  that  the  fraud 
affected  the  work  actually  done.  Fraud  In 
inducing  the  making  of  the  contract  would 
not  necessarily  prevent  the  contractor  from 
collecting  for  work  actually  done  in  good 
faith  under  the  contract  and  In  sul>stantlal 
performance  of  the  contract  according  to  its 
terms;  but.  If  there  Is  a  willful  or  fraudu- 
lent failure  to  strictly  perform  the  contract 
as  actually  made,  the  contractor  cannot  claim 
the  benefits  of  the  equitable  doctrine  of  sub- 
stantial performance.  Hence,  if  the  esti- 
mate was  fraudulent,  and  Thornton  was  not 
aware  of  the  fact,  he  should  recover  if  he 
substantially  performed  the  work  according 
to  the  contract  The  court,  therefore,  correct- 
ly instructed  the  Jury  that:   "It  makes  no 


Digitized  by  VjOOQ  l€ 


Iflnn.) 


BTATE  y.  FOURNIEK. 


829 


difference  If  the  eBtlmate  was  fraudulently 
issued  and  waa  not  by  honest  Judgment  of 
tbe  engineer.  If  the  contract  was  substan- 
tially complied  wltb  in  putting  down  the 
pavement,  then  Thornton  was  justified  In 
abandoning  tbe  contract;  •  •  *  and  the 
fact  that  the  estimate  was  false  could  be 
considered  only  as  bearing  upon  the  amount 
of  paving  actually  laid." 
The  judgment  Is  afiirmed. 


STATE  V.  FOURNIER. 
^Supreme  Court  of  Minnegota,    July  16,  1900.) 

1.  Cbiminal  Law  ({  368*)  —  Evidence  or 
OmKB  Offenses— Admissibilitt. 

To  permit  a  witness  to  testify  to  a  conver- 
sation with  the  defendant,  in  which  defendant 
stated  that  he  had  conunitted  a  crime  in  no  wav 
connected  with  the  one  for  wUch  be  is  on  trial, 
is  reversible  error. 

[Ed.  Note.— For  other  cases,  see  Criminal 
liBW,  Cent.  Dig.  I  822-824 ;   Dec.  Dig.  S  368.*] 

2.  Cbiminai,  Law  (8  700*)— Tbial— Conduct 
OF  County  Attobnet  —  Iufbofeb  Ques- 
tions. 

The  i>er8istent  asking  by  tbe  county  attor- 
ney of  incompetent  and  improper  queBtions  with 
reference  to  matters  which  are  of  a  nature  to 
create  prejudice  in  tbe  minds  of  the  jurors  and 
prevent  the  defendant  from  having  a  fair  trial 
w  such  improper  conduct  as  to  require  the 
granting  of  a  new  trial. 

[£^.  Note.— For  other  cases,  see  Criminal 
Law.  Cent  Dig.  {  1861 ;   Dec  Dig.  f  T06.*] 

(Syllabos  by  the  Court) 

Appeal  from  District  Court,  Beltrami 
County;    M.  A.  Spooner,  Judge. 

Paul  Fournier  waa  convicted  of  murder 
in  tbe  first  degree,  and  from  an  order  deny- 
ing a  new  trial,  be  appeals.  Reversed,  and 
new  trial  ordered. 

Cbas.  W.  Scrutchin,  for  appellant  Geo. 
T.  Simpson,  Atty.  Oen.,  and  C.  Louis  Weeks, 
8p.  Atty.,  for  tbe  State. 

ELLIOTT,  J.  Tbe  appellant,  Paul  Four- 
nier, was  indicted  by  tbe  grand  Jury  of  Bel- 
trami county,  charged  with  the  murder  of 
N.  O.  Dahl.  He  was  convicted  of  murder 
In  the  first  degree,  and  sentenced  to  life  Im- 
prisonment From  an  order  denying  a  mo- 
tion for  a  new  trial,  the  defendant  appealed 
to  this  court 

As  we  have  reached  the  conclusion  that  a 
new  trial  must  be  granted,  it  is  not  advis- 
able to  discuss  tbe  evidence,  or  necessary  to 
consider  many  of  the  questions  raised,  as 
tbey  will  doubtless  be  eliminated  upon  the 
second  trial.  Consideration  of  tbe  rulings 
made  by  the  trial  court  In  the  reception  of 
evidence  and  the  course  of  conduct  pursued 
by  the  county  attorney  In  persisting  In  ask- 
ing Incompetent  and  prejudicial  questions 
should  be  premised  by  the  statement  tnat  this 
record  does  not  show  conclusively  that  the 
defendant  was  guilty  of  the  crime  charged. 

It  appears  that  an  old  man  named  N.  O. 


Dahl  and  his  daughter,  who  were  living  on 
a  claim  in  the  northern  woods,  were  murder- 
ed and  their  bodies  concealed,  so  that  they 
were  not  found  for  nearly  three  months. 
Foumler  and  another  man  were  arrested, 
charged  with  the  crime,  and  convicted. 
Fournier's  case  only  Is  now  before  tbe  coxttt 
The  evidence  (except  as  to  an  alleged  con- 
fession or  admission  by  Fournier,  which  was 
testified  to  by  his  brother)  was  entirely  cir- 
cumstantial. Without  this  admission,  the 
remaining  evidence  would  have  been  totally 
inadequate  to  sustain  a  conviction.  The  de- 
fendant denied  having  made  the  admission, 
and  tbe  credibility  of  the  witnesses  was  a 
vital  question.  This  being  true,  and  tbe  is- 
sue being  of  life  or  death,  the  defendant 
was  entitled  to  be  tried  according  to  the  es- 
tablished rules  of  evidence,  and  not  to  have 
the  jury  prejudiced  by  testimony  relating  to 
other  alleged  crimes  and  misdoings  on  bis 
part 

1.  A  witness  by  the  name  of  Rood  testi- 
fied that  after  the  disappearance  of  the 
Dahls  he  visited  their  cabin  and  found  that 
a  mirror  had  been  turned  to  tbe  wall.  Upon 
this  slender  foundation  a  witness,  Florence 
Melquist,  was  permitted  to  testify,  over  de- 
fendant's objection,  as  follows:  "Q.  During 
the  time  that  you  were  at  Paul  Fournier's, 
did  you  ever  hear  him  say  anything  about 
turning  a  looking  glass  to  the  wall?  A.  I 
did.  •  •  »  Q.  What  did  be  say?  *  •  • 
A.  Well,  he  said  that  be  went  to  rob  a  ware- 
house— I  don't  know  where  it  was,  but  It 
was  a  warehouse  that  he  went  to  rob — and 
they  turned  the  looking  glass  to  the  wall, 
and  they  put  one  light  In  the  fellow's  eyes, 
the  watchman  who  laid  In  the  camp.  He 
gave  reasons  for  this.  I  don't  remember. 
I  know  he  told  tbe  story  more  than  once — 
held  tbe  gun  on  the  man  while  they  were 
taking  the  things  they  wanted.  Q.  Turned 
the  looking  glass  toward  tbe  wall  while  do- 
ing this?  A.  Yes,  sir."  This  evidence  was 
clearly  Inadmissible.  State  v.  Yates,  89 
Minn.  461,  109  N.  W.  1070;  People  v.  Kllse 
(Mich.)  120  N.  W.  888.  But  in  view  of  the 
fact  that  the  defendant  took  the  stand  and 
subsequently  on  cross-examination  admitted 
that  he  had  been  connected  with  the  robbing 
of  a  warehouse,  It  is  possible  that  the  error 
In  receiving  tbe  evidence  above  quoted  would 
not  itself  Justify  a  reversal. 

2.  Error  is  assigned  upon  the  conduct  of 
the  county  attorney  in  persistently  asking 
improper  questions.  Tbe  defendant  being  on 
the  stand  and  having  previously  testified 
that  he  had  never  been  married,  tbe  record 
discloses  the  following  proceedings:  "Q. 
Where  are  your  children  now?  A.  I  don't 
know  as  I  have  any  children.  Q.  You  don't 
know  as  you  have  any?  A.  I  don't  Q. 
Where  is  your  boy  now?  A.  I  don't  know  as 
I  have  a  boy.  •  •  •  I  don't  know  wheth- 
er he  Is  my  boy  or  not    Q.  You  called  him 


•For  otber  cases  sea  aam*  toplo  and  section  NUMBER  In  De(.  ft  Am.  Diss.  1907  to  data,  &  Raporter  Itadazai 


Digitized  by  VjOOQ  l€ 


330 


122  NORTHWESTEBN  BEPORTEB. 


CN.DI. 


your  son?  A.  I  did  call  him  my  son.  I 
don't  know  whether  he  is  my  boy  or  not — 
my  son  or  not  He  goes  by  the  name  of 
Jc^n  Howard.  Q.  Who  was  bis  mother? 
Mr.  Scrutchln:  Objected  to  as  Incompetent, 
irrelevant,  and  immaterial.  The  Court: 
What  is  the  purpose  of  this?  Mr.  Funkley: 
I  want  to  show  that  he  called  him  bis  own 
son,  and  always  recognized  bim  as  bis  son. 
The  Court:  Is  that  a  material  feature  In 
this  case  at  all?  Mr.  Martin:  I  want  to 
say,  your  honor,  a  man  may  call  many  boys 
bis  son.  That  don't  make  any  difference.  It 
Is  a  very  common  expression.  The  Court: 
I  don't  see  how  it  is  material  here.  You 
cannot  impeach,  except  upon  material  mat- 
ters. Is  that  material?  Mr.  Funkley:  It 
goes  to  the  credibility  of  his  testimony.  Q. 
Was  this  son  of  partly  Indian  blood?  Mr. 
Scrutchln:  Objected  to  as  incompetent.  Irrel- 
evant, and  Immaterial.  The  Court:  Will 
you  tell  me  how  It  will  throw  any  light  un 
on  this  case  at  all?  Mr.  Funkley:  It  cer- 
tainly will  go  to  the  credibility  of  his  testi- 
mony. He  says  be  wasn't,  when  be  actuallv 
was  married  and  bad  children.  The  Court: 
I  do  not  see  bow  it  is  material.  Q.  Did  yci 
know  George  Barclay?  A.  Yes,  sir.  Q. 
Where?  A.  Pine  River.  Q.  What  became  of 
bim?  A.  He  got  shot.  Q.  How?  Shot 
through  the  window,  wasn't  he?  A.  Yes,  sir. 
Q.  Did  you  do  It?  A.  No,  sir.  Q.  Do  you 
recollect  camping  on  Leech  Lake  some  time 
after  Barclay  was  shot,  and  when  your 
squaw  said  that  if  you  didn't  give  her  mon- 
ey she  was  going  to  tell  who  killed  Barclay? 
Mr.  Scrutchln:  Objected  to  as  incompetent 
Irrelevant  and  immaterial,  not  proper  cross- 
examination,  and  assuming  a  fact  that  has 
not  been  proven.  The  Court:  Objection 
sustained.  Q.  Didn't  you  then  give  her  mon- 
ey? (Same  objection  and  ruling  as  last 
above.)  Q.  And  wasn't  she  the  next  morn- 
ing found  dead,  with  a  knife  blade  sticklni; 
in  her  side?  (Same  objection  and  ruling  as 
last  above.)  Q.  Who  was  with  you  In  this 
hold-up  on  the  Big  Fork  river?  A.  Well,  It 
was  no  hold-up  that  I  could  see.  We  walked 
Into  the  warehouse.  We  didn't  bold  up  any- 
body. Q.  Didn't  you  have  a  gun  with  you? 
A.  Yes.  Q.  And  didn't  you  aim  the  gun  at 
the  man?    A.  No,  sir." 

We  do  not  intend  to  limit  or  restrict  the 
rule  with  reference  to  proper  cross-examina- 
tion which  was  applied  in  State  v.  Quirk. 
101  Minn.  335,  112  N.  W.  409;  but  the  limit 
is  clearly  reached  and  passed  when  ques- 
tions are  asked  manifestly  for  the  purpose 
of  creating  prejudice  in  the  minds  of  the 
jurors,  or  the  examination  is  carried  on  In 
such  a  manner  or  to  such  an  extent  as  to  be- 
come oppressive,  and  is  not  warranted  b^ 
anything  In  the  case.  Malone  v.  Stephenson. 
9i  Minn.  222,  102  N.  W.  372;  Buel  v.  State, 
104  Wis.  132.  80  N.  W.  78;  Elliott  v.  State. 
34  N(>b.  48,  51  K.  W.  315.     For  the  purpose 


of  affecting  credibility,  the  statutes  author- 
ize the  state  to  show  that  a  witness  has  been 
previously  convicted  of  a  crime;  but  the  ex- 
amination must  be  confined  to  the  fact  of 
conviction.  The  court  ruled  properly  upon 
these  particular  questions;  but  the  county 
attorney  should  have  been  prevented  from 
continuing  such  a  course  of  examination,  as 
the  result  would  inevitably  prejudice  the 
Jurors  against  the  defendant 

3.  Error  is  also  assigned  upon  the  instruc- 
tions of  the  court  in  reference  to  the  weight 
the  Jury  was  entitled  to  give  the  evidence 
relating  to  the  admission  by  the  defendant 
that  be  bad  committed  the  crime.  The  fact 
of  the  admission  rested  on  the  testimony  of 
one  witness.  It  was  denied  by  the  defend- 
ant, and  the  court  should  not  have  singled 
out  this  particular  Item  of  evidence  and 
placed  unusual  stress  upon  It  The  defend- 
ant was  entitled  to  have  all  the  evidence 
considered,  and  the  credibility  of  witnesses 
established  according  to  well-known  rules. 

The  Judgment  and  order  appealed  from 
are  reversed,  and  in  accordance  with  thp 
statute  a  new  trial  Is  directed.  The  case  is 
remanded  to  the  district  court  to  that  end, 
and  the  warden  of  the  Minnesota  State  Pris- 
on is  hereby  directed  to  deliver  the  said  de- 
fendant to  the  sheriff  of  Beltrami  county,  to 
be  taken  to  Beltrami  county  for  such  new 
trial. 

Beversed,  and  new  trial  ordered. 


STATE  ▼.   MAOILIi. 

(Supreme  Court  of  North  Dakota.     June  12, 
1009.) 

1.  Cbiminai,  Law  (5  449*)— Evidence— Rip- 

tJTATION. 

In  cases  where  evidence  of  the  good  char- 
acter or  reputation  of  a  person  is  admissible, 
the  evidence  must  be  as  to  his  general  reputa- 
tion in  the  community  in  which  ne  resides,  and 
before  a  witness  is  competent  to  testify  thereto, 
he  must  disclose  a  knowledge  of  the  person's 
general  reputation,  and  should  not  be  i>ermit- 
ted  to  give  his  own  opinion  as  to  it. 

[EM.    Note.— For    other   cases,    see   Criminal 
Law,  Dec.  Dig.  {  449.»] 

2.  Assault  and  Battebt  (8  85*)— Evidknm 
— Character. 

Under  the  evidence  in  this  case,  evidence 
of  the  good  character  or  reputation  of  the  com- 
plaining  witness   is  inadmissible. 

[Ed.  Note.— For  other  cases,  see  Assault  and 
Battery,  Cent  Dig.  }  133 ;   Dec  Dig.  $  8o.*J 

8.  Assault  and  Battebt  (J  48*)— "Battkbt" 

Defined. 

An  instruction  that  a  battery  is  any  un- 
lawful or  willful  use  of  force  or  violence  upon 
the  person  of  another  is  incorrect,  as  the  force 
or  violence  used  mast  be  both  willful  and  un- 
lawful. 

[Ed.  Note.— For  other  cases,  see  Assault  and 
Battery,  Cent  Dig.  i  68;    Dec.  Dig.  J  48.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  1.  pp.  719,  721;   vol.  8,  p.  7588.] 

(Syllabus  by  the  Court.) 


*For  otber  case*  lee  same  topio  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1S07  to  date,  ft  Reporter  Indexes 


Digitized  by 


Google 


N.D.) 


8TATB  T.  MAQILU 


831 


Appeal  from  District  Conrt,  Bansom  Coun- 
ty;  Frank  P.  Allen,  Judge. 

Roland  Maglll  was  convicted  of  assault 
and  battery,  and  appeals.    Reversed. 

W.  D.  Lynch  (O.  W.  Davis,  of  counsel),  for 
appelant  T.  A.  Curtis  and  Andrew  Miller, 
Atty.  Gen.  (Rourke  &  Kvello,  of  counsel), 
for  tlie  State. 

CARMODY,  J.  On  the  3d  day  of  Decem- 
ber, 1907,  the  defendant  was  informed  against 
by  Alfred  M.  Kvello,  state's  attorney  of 
Ransom  county,  for  the  crime  of  assault  and 
battery  with  a  dangerous  weapon,  upon  tlie 
person  of  one  Claude  Bearfleld.  The  jury 
returned  a  verdict  finding  the  defendant 
guilty  of  assault  and  battery.  Judgment  was 
entered  on  the  verdict,  and  this  appeal  taken 
therefrom. 

The  defendant  claimed  whatever  be  did 
was  in  self-defense,  and  that  Bearfleld  was 
the  aggressor.  Error  is  assigned  upon  the 
admission  of  testimony  ottered  by  the  state 
as  to  the  reputation  of  Claude  Bearfleld.  J. 
P.  Martin  testified  as  follows:  "t  live  north 
of  town  here  about  six  miles.  I  am  ac- 
quainted with  Mr.  Bearfleld.  I  have  known 
him  since  about  1898  or  '09,  I  guess.  I  am 
a  farmer,  and  have  been  farming  all  that 
time.  Bearfleld  worked  for  me  about  three 
years,  several  times,  you  know,  since  I  got 
acquainted  with  him.  He  stayed  at  my 
house.  I  am  a  married  man,  and  have  a 
family.  He  was  a  member  of  my  family 
during  that  time.  From  my  knowledge  of 
Mr.  Bearfleld,  I  know  what  his  reputation 
for  being  a  peaceful  man  is;  be  is  a  peaceful 
man.  I  never  bad  any  trouble  with  him  on 
the  farm;  never  knew  of  him  having  trouble 
or  a  figbt  with  anybody.  I  think  he  is  kind 
and  peaceful  as  I  say.  I  never  heard  him 
say  a  word  out  of  the  way,  only  be  kind.  I 
don't  know  anything  at  all  about  his  bttdness 
of  any  kind;  never  saw  him  use  Intoxicants 
of  any  kind."  On  cross-examination  by  de- 
fendant's attorney  be  testified  as  follows:  "1 
have  heard  nothing  about  his  quarreling 
with  others.  My  folks  made  remarks  lots 
of  times  bow  good  he  was.  What  I  know 
at>out  him  and  what  I  am  testifying  is  from 
my  own  personal  knowledge  and  observa- 
tions. I  am  not  pretending  to  testify  about 
his  general  reputation  in  the  community." 
A  motion  was  then  made  to  strike  oat  the 
testimony  of  this  witness  as  to  reputation, 
both  as  a  peaceful  citizen  and  for  truth  and 
veracity,  upon  the  ground  that  the  testimony 
now  given  is  not  from  bis  knowledge  of  the 
general  reputation  of  the  witness,  but  from 
bis  individual  experience  and  opinion  of  the 
witness  Bearfleld,  therefore  not  admissible. 
No  ruling  was  made,  and  an  exception  was 
taken  by  defendant  In  our  opinion  the  tes- 
limony  should  have  been  stricken  out.  Even 
If  in  tills  case  the  state  might  properly  in- 
troduce proof  as  to  the  general  reputation 
-or  cliaracter  of  the  complalBlng  witness,  nev- 


ertheless, the  proof  offered  was  not  compe- 
tent for  the  reason  that  it  was  not  as  to  the 
general  reputation.  The  witness  did  not 
pretend  to  know  or  testify  to  his  gener&l 
reputation.  The  rule  of  the  cases  is  stated 
in  5  A.  &  E.  Enc.  of  Law  (2d  Ed.)  879.  880. 
as  follows:  "Character  must  be  proved  by 
witnesses  who  know  the  general  reputation 
of  the  person  In  question;  and  l>efore  evi- 
dence as  to  character  is  admissible,  this 
knowledge  must  appear.  •  *  *  A  witness 
as  to  character  should  not  be  allowed  to 
speak  as  to  his  own  knowledge  of  the  acts 
and  transactions  from  which  the  character  or 
reputation  of  the  person  whose  character  Is 
being  investigated  has  been  derived,  but  he 
must  speak  from  his  own  knowledge  of 
what  is  generally  said  of  such  person  by 
those  among  whom  he  resides,  and  with 
whom  he  is  chiefly  conversant  The  mere  in- 
dividual opinion  of  the  witness  as  to  charac- 
ter which  is  the  subject  of  inquiry  is  not  ad- 
missible." State  V.  Thoemke,  11  N.  D.  387, 
92  N.  W.  480.  In  the  case  at  bar,  however, 
evidence  of  the  reputation  of  the  prosecuting 
witness  for  truth  and  veracity  and  peaceful- 
ness  was  inadmissible.  Before  such  evi- 
dence is  admissible,  the  defendant  must  flrst 
attack  the  character  of  the  prosecuting  wit- 
ness. It  is  never  competent  for  the  prosecu- 
tion to  show.  In  the  first  instance,,  against  the 
defendant  that  the  person  assaulted  was  of 
good  or  peaceable  character.  2  Bishop  on 
Criminal  Law  (3d  Ed.)  {  612,  and  cases  there 
cited;  Bowlus  v.  State,  130  Ind.  227,  28  M. 
B.  1115;  Pound  v.  State,  43  6a.  88;  State  v. 
Potter,  13  Kan.  414;  Ben  v.  State,  37  Ala. 
103. 

Several  errors  are  assigned  to  the  charge 
of  the  court  only  one  of  which  we  shall  no- 
tice, which  is  as  follows:  "A  battery  is  any 
unlawful  or  willful  use  of  force  or  violence 
upon  the  person  of  another."  Battery  is  de- 
fined by  our  Code  to  be  any  willful  and  un- 
lawful use  of  force  or  violence  upon  the  per- 
son of  another.  The  error  urged  In  this  In- 
struction Is  the  use  of  the  disjunctive  "or" 
instead  of  the  conjunctive  "and"  between 
the  words  "unlawful"  and  "willful."  This 
Instruction  was,  we  think,  erroneous.  The 
assault  and  battery,  to  constitute  the  crime, 
must  be  both  willful  and  unlaw'ful,  not  ei- 
ther willful  or  unlawful.  Alston  v.  Stat6, 
109  Ala.  51,  20  South.  81.  In  that  case  the 
court  said:  "An  instruction  that  'the  least 
touching  of  another  person,  willfully  or  in 
anger.  Is  a  battery'  is  vitiated  by  the  disjunc- 
tive 'or,'  since  touching  one  willfully  is  dot 
sufl[lcient  to  constitute  a  battery."  The 
charge  to  the  Jury  must  include  every  ele- 
ment of  the  offense.  If  not  defined  in  the 
language  of  the  statute,  the  other  language 
used  must  set  forth  the  essential  constitu- 
ents of  the  offense  to  which  the  charge  ro- 
lates.  12  Cyc.  612;  Goldsberry  v.  State,  GQ 
Neb.  312,  92  N.  W.  900;  Llndley  v.  State,  8 
Tex.  App.  44S. 


Digitized  by 


Google 


332 


122  NORTHWESTERN  REPORTER. 


(N.D. 


On  account  of  the  errors  hereinbefore  stat- 
ed, the  Judgment  is  reversed,  tbe  verdict  of 
the  jury  set  aside,  and  a  new  trial  awarded 
the  defendant.  All  concur,  except  MORGAN, 
O.  J.,  not  participating. 


WESTERN  MFG.  CO.  t.  PBABODT. 

(Supreme  Court  of  North  Dakota.     June  22, 
1909.) 

1.  Appeal  and  Ebbob  (§  265*)— Exceptions 
— SuFFioiENCT  OP  Findings. 

The  sufficiency  of  findings  of  fact  to  sup- 
port the  conclosions  and  judgment  may  be  chal- 
lenged by  asaignmenta  of  error  upon  tbe  record 
proper,  without  exceptions  having  been  taken  to 
such  findings. 

[E^.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  t  1536;   Dec.  Dig.  §  265.*] 

2.  Tkial  (8   395*)— Tbial  bt  Oodbt— Find- 
ings   OP   FACT--SDF)riOIBNCT, 

A  recovery  under  defendant's  counterclaim, 
based  upon  an  alleged  cause  of  action  arising 
under  a  contract,  whereby  plaintiff,  who  sold 
certain  jewelry  to  defendant,  agreed  that  if  de- 
fendant failed  to  sell  enough  of  such  jewelry 
within  one  year  to  equal  1%  times  the  purchase 
price,  he  (plaintiff)  would  redeem  or  purchase 
back  from  defendant  the  unsold  portion  at  the 
invoice  price,  cannot  be  sustained,  where  the 
findings  totally  fall  to  find  that  any  rach  con- 
tingency has  arisen.  So  far  as  the  findings 
disclose,  defendant  may  have  sold,  at  retail 
prices,  enongb  of  such  jewelry  to  equal  I14 
times  tbe  wholesale  price  of  the  entire  consign- 
ment. Hence  the  findings  are  insufficient  to 
support  the  Judgment  on  any  theory  of  law. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  {  927;   Dec.  Dig.  i  393.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Foster  Coun- 
ty;  Edward  T.  Burke,  Judge. 

Action  by  the  Western  Manufacturing  Com- 
pany against  George  F.  Peabody.  Judg- 
ment for  defendant,  and  plaintiff  appeals. 
Reversed. 

W.  E.  Hoopes  (Engerud,  Holt  &  Frame,  of 
counsel),  for  appellant  C.  B.  Craven,  forVe- 
apondent 

FISE,  J.  This  action  originated  in  Justice 
court,  and  was  brought  to  recover  upon  a 
promissory  note  for  $32,  executed  and  deliv- 
ered by  defendant  to  tbe  plaintiff  as  a  part 
of  the  purchase  price  of  a  certain  consign- 
ment of  Jewelry,  sold  and  delivered  by  plain- 
tiff to  defendant  on  or  about  February  10, 
1905.  The  answer  admits  the  execution  of 
the  note  sued  upon,  but  alleges,  by  way  of 
counterclaim,  that  at  the  time  the  same  was 
executed  and  delivered,  defendant  purchased 
a  consignment  of  jewelry  from  plaintiff  at 
tbe  wholesale  invoice  price  of  $192,  under 
an  express  agreement  that,  if  the  defendant 
should  fall  to  sell,  within  one  year  from  the 
date  thereof,  at  retail  price  an  amount  of 
such  Jewelry  equal  to  1^  times  the  total 
amount  of  such  contract,  to  wit  $192,  the 
plaintiff  would  redeem  or  purchase  back  from 


defendant  the  unsold  portion  of  such  Jewel- 
ry  remaining  In  defendant's  possession  at  the 
expiration  of  said  year,  paying  therefor  the 
wholesale  invoice  price  thereof.  The  answer 
further  alleges  that  defendant  had  on  band, 
at  the  expiration  of  said  year,  according  to 
the  wholesale  Invoice  price  thereof,  jewelry 
thus  purchased  from  plaintiff  aggregating  In 
value  ^$153.51,  which  he  had  failed  to  sell, 
and  that  defendant  requested  plaintiff  to  re- 
deem or  purchase  back  from  him  said  jewelry 
pursuant  to  the  terms  of  such  contract,  but 
that  plaintiff  has  refused  so  to  do,  and  de- 
fendant prays  for  Judgment  in  his  favor  for 
the  sum  of  $131.51.  The  answer  also  prays 
that  plaintiff  be  adjudged  to  be  the  owner 
of  such  Jewelry,  but  that  defendant  be  award- 
ed the  possession  thereof  until  such  time  aa 
the  plaintiff  shall  have  complied  with  lt8 
agreement  to  redeem  said  property,  and  that 
if  the  plaintiff  shall  not  redeem  the  same 
within  30  days  from  the  date  of  tbe  entry 
of  judgment,  such  property  be  sold  by  the 
sheriff  or  any  constable  under  execution. 
Defendant  recovered  an  affirmative  Judg- 
ment in  the  justice  court  for  the  sum  of  $152.- 
90,  and  costs,  from  which  an  appeal  was  taken 
to  the  district  court,  where  a  new  trial  was 
had,  a  Jury  being  waived.  At  the  conclusion 
of  the  trial  the  court  made  findings  of  fact 
and  conclusions  of  law,  in  substance,  as  fol- 
lows: (1)  That  defendant,  on  or  about  the 
11th  day  of  February,  1905,  purchased  of 
the  plaintiff  a  consignment  of  Jewelry  at 
the  wholesale  invoice  price  of  $192;  (2) 
that  such  purchase  was  made  upon  a  written 
contract,  which  provided  that  if  the  defend- 
ant should  fail  to  sell  an  amount  of  such  Jew- 
elry equal  to  1%  of  the  total  amount  of  such 
Jewelry,  plaintiff  would  remit  to  defendant 
the  balance  of  the  price  of  the  jewelry  re- 
maining at  tbe  expiration  of  said  contract, 
at  the  wholesale  price  thereof;  (3)  that  the 
total  amount  of  such  Jewelry  sold  by  the  de- 
fendant at  the  wholesale  price  thereof 
amounted  only  to  the  sum  of  $38.49;  (4)  that 
the  total  amount  of  such  jewelry  remaining 
unsold  at  the  expiration  of  one  year,  accord- 
ing to  the  wholesale  invoice  price,  is  $153.51, 
and  that  defendant  has  demanded  of  the 
plaintiff  that  it  redeem  or  repurchase  such 
property,  and  the  plaintiff  refuses  so  to  do. 
From  such  facts  the  court  made  conclusions 
of  law,  In  substance,  as  follows:  That  de- 
fendant is  entitled  to  recover  of  the  plaintiff 
the  sum  of  $131.51,  and  interest  thereon  from 
February  11,  1905,  at  the  rate  of  7  per  cent 
per  annum;  that  plaintiff  Is  the  owner  of 
all  of  the  Jewelry  remaining  in  tbe  possession 
of  defendant  on  February  11,  1906.  Pursu- 
ant to  such  findings  and  conclusions  the 
trial  court  ordered  that  defendant  have  and 
recover  from  the  plaintiff  the  sum  of  $131Jil, 
with  Interest  as  aforesaid,  together  with  his 
costs  and  disbursements,  and  that  plaintiff 
within  10  days  after  the  service  of  said  order 


*For  Btber  eww  sm  same  toplo  and  lecUoa  NUMBER  in  Deo.  *  Am.  Digs.  1807  to  date,  *  Ssportar  Ind«s«a 


Digitized  by  VjOOQ  IC 


N.D.) 


ST.  PAUL,  M.  &  U.  B.  CO.  ▼.  BLAEE&tORIi. 


833 


opon  It,  shall  deposit  snch  jewelry  with 
tlie  clerk  of  the  district  conrt.  Judgment 
was  entered  pursuant  to  snch  order,  from 
which  plaintiff  has  appealed  to  this  oonrt 
Mo  statement  of  case  was  settled,  and  the  sole 
errors  assigned  relate  to  the  face  of  the  Judg- 
ment roll  proper. 

Appellant  assigns  error  as  follows:  (1)  The 
findings  and  conclusions  do  not  conform  to 
the  issues  presented  by  the  pleadings.  (2) 
The  findings  and  conclusions  are  too  oh- 
score  to  snstain  the  Judgment.  (3)  The  con- 
clusions and  Judgment  are  not  supported  by 
the  findings  of  fact,  because  (a)  the  recovery 
awarded  Is  greater  In  amount  than  is  war- 
ranted by  the  facts  pleaded  and  found;  (b) 
the  findings  do  not  show  that  plaintiff's  ob- 
ligations to  redeem  ever  became  operative; 
(c)  the  facts  pleaded  and  found  do  not  war- 
rant a  recovery  of  the  invoice  value-  of  the 
goods  remaining  unsold,  neither  do  they 
warrant  a  reoovery  for  damages  for  the 
breach  of  plaintiff's  agreement  to  redeem  or 
a.  Judgment  for  the  foreclosure  of  a  vendor's 
lien  and  a  recorery  of  a  deficiency  arising 
on  sale  of  the  goods  as  a  pledge.  (4)  The 
judgment  is  too  Indefinite  and  ambiguous  to 
constitute  a  final  determination  of  the  rights 
of  the  parties,  and'  is  not  warranted  by  the 
facts  pleaded  and  found.  It  is  entirely  clear 
that  the  conclusions  of  law  and  Judgment 
are  not  supported  by  the  findings  of  fact,  and 
hence  the  Judgment  is  erroneous,  and  must  be 
reversed.  This  conclusion  renders  it  unneces- 
sary to  notice  any  of  the  assignments  other 
than  the  third,  and,  in  view  of  the  admls- 
Bton  of  respondent's  counsel  that  the  amount 
of  the  recovery  is  in  excess  of  that  warrant- 
ed by  the  facts  as  pleaded  and  found,  we 
Bball  merely  notice  the  second  and  third 
grounds  or  reasons  relied  on  in  support  of 
such  assignment,  and  these  will  be  considered 
together,  and  but  briefly. 

The  stipulation  of  facts  set  out  in  respond- 
ent's brief,  even  if  it  contained  a  sufiScient 
statement  of  facts  to  support  respondent's 
counterclaim,  cannot  be  considered,  as  it 
lias  not  been  incorporated  In,  and  made  a 
part  of,  the  record  by  the  settlement  of  a 
statement  of  the  case.  This  was,  of  course, 
essential  to  bring  the  same  properly  to  our 
attention.  Nor  does  the  fact  that  appellant 
saved  no  exceptions  to  the  findings  of  the 
trial  court  In  any  manner  deprive  him  of 
the  right  to  attack  their  sufficiency  to  support 
the  conclusions  and  Judgment.  It  is  well 
settled  that  error  may  be  assigned  upon  the 
record,  without  exceptions,  when  the  only 
question  is  whether  the  facts  found  support 
the  Judgment  The  findings  are  treated  as 
a  special  verdict  in  such  cases.  M'organ  v. 
Botsford,  82  Mich.  153,  46  N.  W.  230 ;  Sauk- 
viUe  V.  Grafton,  68  Wis.  102,  31  N.  W.  719 ; 
Seeberger  t.  Schleslnger,  152  y.  S.  581,  14 
Sup.  Ct  729,  38  L.  Ed.  560;  8  Encyc.  of  PI. 
&  Pt.  pp.  273,  274,  and  cases  cited.    Our  rea- 


sons for  saying  that  the  conclusions  of  law 
and  Judgment  are  without  support  in  the 
findings  are  briefly  the  following:  Such  con- 
clusions and  Judgment  award  a  recovery  to 
respondent  upon  his  alleged  counterclaim, 
but  the  findings  fail  absolutely  to  show,  or 
to  find  as  a  fact,  that  a  cause  of  action  on 
such  counterclaim  ever  accrued  to  respond- 
ent under  the  terms  of  the  contract.  By  its 
terms  appellant  obllg&ted  itself  to  purchase 
or  redeem  from  respondent  at  the  end  of  one 
year  such  portion  of  the  goods  as  should  re- 
main unsold  in  respondent's  possession  "if 
the  defendant  should  fail  to  sell  an  amount 
of  such  Jewelry  equal  to  one  and  one-half 
of  the  total  amount  of  such  Jewelry."  In 
other  words.  If  defendant  failed  within  a  year 
to  sell  enough  of  such  goods  to  equal,  at 
retail  prices,  1%  times  the  total  invoice 
price  thereof,  appellant  agreed  to  redeem 
or  purchase  back  from  respondent  the  un- 
sold portion  at  the  wholesale  invoice  price 
thereof.  The  findings  totally  fail  to  disclose  * 
that  any  such  contingency  ever  arose.  The 
third  finding  is  to  the  effect  that  defendant 
sold  enough  of  such  Jewelry  to  equal,  at  the 
wholesale  price  thereof,  the  sum  of  only 
$38.49.  What  he  received  for  it  at  retail 
prices  is  nowhere  disclosed.  It  was  incum- 
bent upon  him,  in  order  to  substantiate  a 
cause  of  action  under  the  counterclaim,  to 
allege  and  prove  that  be  failed  to  receive  for 
the  portion -sold  by  him  a  sum  equal  to  1^^ 
times  the  total  invoice  price  of  all  such  Jew- 
elry. Hence  the  findings  are  insufficient  to 
support  a  recovery  on  the  counterclaim  un- 
der any  theory  or  rule  of  law. 

It  follows  that  the  Judgment  must  be,  and 
the  same  Is  hereby,  reversed,  and  a  new 
trial  ordered.  All  concur,  except  MORGAN, 
O.  J.,  not  participating. 


ST.  PAUL,  M.  &  M.  R.  CO.  v.  BLAKEMORE 
et  al. 

(Supreme   Conrt   of   North    Dakota.     May   1, 
1909.     RebeatiDg   Denied   June  29,   1909.) 

1.  Pabties  (§  52*)— Bbinqinq  in  Additional 
Parties — Time. 

Section  6824,  Rev.  Codes  1905,  does  not 
authorize  the  bringing  in,  by  order  of  court,  of 
additional  parties  after  entry  of  judgment  in 
a  pending  action.  The  judgment  being  in  it- 
self a  complete  determination  of  the  contro- 
versy and  of  the  rights  of  all  parties  thereto, 
there  is  neither  warrant  nor  necessity,  after 
its  entry,  for  the  presence  of  additional  parties. 
[Ed.  Note.— For  other  cases,  see  Parties,  Cent. 
Dig.  §  83 ;    Dec.  Dig.  §  52.»] 

2.  Pabties   (§   42*)  —  Intebvention  —  When 
Allowed. 

Section  6825,  Rev.  Codes  1905,  authorizes 
the  intervention  and  interpleader  in  a  pending 
action  only  before  the  trial  of  parties  whose 
rights  are  undetermined.  The  provisions  of 
this  section  wilt  not  sustain  an  order  permit- 
ting the  intervention,  after  judgment,  of  a  par- 
ty whose  petition  to  intervene  does  not  show  a 


•For  other  caiei  see  lame  topic  and  uctioa  NUMBER  in  D«c.  &,Am.  Dig*.  U07  to  date,  4.  Reporter  l«dex«* 


Digitized  by  LjOOQIC 


334 


122  NORTHWESTERN  REPORTER. 


(N.D. 


clear,  unmistakable,  or  adjadicated  interest  in 
the  judgment  rendered. 

[Ed.  Note.— For  other  cases,  see  Parties,  Cent 
Dig.  I  69;  Dec  Dig.  {  42.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Cass  Coiinty; 
G.  A.  Pollock,  Judge. 

Action  by  tlie  St  Paul,  Minneapolis  &  Man- 
itoba Railroad  Company  against  Robert  B. 
Blalcemore  and  others,  to  condemn  certain 
real  estate,  and  an  award  was  made  to  de- 
fendants in  judgment  after  entry.  Cass 
county  was  permitted  to  intervene,  and  In- 
terplead as  defendant,  and  from  such  order 
defendants  appeal.    Reversed. 

See,  also,  114  N.  W.  730. 

Engerud,  Holt  &  Frame,  for  appellants. 
Murphy  &  Duggan  and  Lee  &  Fowler,  for 
respondent 

ELLSWORTH,  J.  The  appeal  In  this  case 
arises  out  of  an  action  commenced  by  the 
respondent  railroad  company  against  the  de- 
fendants and  appellants  for  the  condemnation 
of  two  lots  in  the  city  of  Fargo  as  station 
grounds  for  the  use  of  respondent  The  de- 
fendants made  answer  in  the  action,  claiming 
title  in  fee  to  the  lots  which  respondent 
sought  to  have  condemned.  The  action  was 
tried  In  the  district  court  of  Cass  county  to 
a  Jury,  which  rendered  a  verdict  in  favor  of 
the  defendants  and  against  the  plaintiff  tor 
the  sum  of  $900  as  the  actual  value  of  the 
lots  In  question.  A  judgment  In  accordance 
with  this  verdict  was  entered  In  the  district 
court  on  January  18,  1906.  On  the  same  day 
respondent  deposited  with  the  clerk  of  the 
district  court  the  sum  of  $959.70,  the  amount 
of  the  award  of  the  jury  with  taxable  costs. 
On  the  same  day  the  district  court  made  Its 
final  order,  whereby  it  vested  title  to  the  lots 
In  plaintiff  for  the  uses  and  purposes  for 
which  the  same  were  condemned,  "free  and 
clear  of  all  right,  title,  claim,  and  interest  of 
the  defendants  in  or  to  the  same."  On  the 
same  day  the  state's  attorney  of  Cass  county 
presented  to  the  district  court  a  petition  of 
Cass  county  to  Intervene  in  the  condemnation 
suit.  In  which  was  alleged,  as  ground  for 
such  Intervention,  the  fact  that  In  prior 
years,  beginning  with  the  year  1893  and  end- 
ing with  the  year  1905,  taxes  had  been  assess- 
ed and  levied  upon  the  lots  condemned,  which 
bad  become  delinquent  and  were  unpaid,  and 
which  at  that  date,  with  accrued  penalty  and 
interest,  amounted  to  the  total  sum  of 
1439.13;  that  pursuant  to  the  state  laws  the 
taxes  for  the  years  1893  to  and  including  the 
year  1901  had  been  duly  certified  to  the  clerk 
of  the  district  court  for  judgment  and  sale 
of  the  premises  Involved  in  satisfaction  of 
these  taxes.  The  petition  further  recited  the 
condemnation  proceedings  and  the  award  of 
the  jury  of  $900  as  compensation  for  the  tak- 
ing by  respondent,  the  entry  of  judgment  on 
the  award  in  the  sum  of  $959.70,  and  "that 


the  said  judgment  Is  for  the  full  value  of 
said  premises,  and  stands  In  Ueu  of  said 
premises,  and  these  petitioners  and  inter- 
veners are  entitled  to  resort  to  said  Judg- 
ment for  the  satisfaction  of  the  liens  afore- 
said, and  are  entitled  to  have  said  judgment 
paid  to  them  to  the  extent  of  their  said  lien 
claims.  Wherefore  petitioners  and  intervoi- 
ers  ask  that  an  order  be  entered  by  this  court 
distributing  the  moneys  aforesaid  as  in  tblo- 
petition  prayed  for."  The  respondent  rail- 
road company  joined  with  the  Intervener  ln> 
Its  petition  that  the  moneys  paid  into  court 
by  it  as  plaintiff  in  the  action  be  distributed 
as  the  petition  requested.  The  district  court 
Issued  an  order  to  show  cause  on  this  peti- 
tion to  Intervene,  and  upon  a  formal  hearing 
had  pursuant  thereto  made  an  order  as  fol- 
lows: "At  this  time  the  above-entitled  mat- 
ter, coming  before  the  court,  having  been  un- 
der advisement,  the  question  arises  whether 
the  money  now  In  the  hands  of  the  clerk  or 
this  court  to  the  extent  of  the  taxes  due  on 
the  property  In  question  shall  be  retained  b^ 
the  court  awaiting  the  final  determination 
of  the  action  of  Cass  county.  North  Dakota; 
against  said  property,  and  the  court,  btHag. 
fully  advised  In  the  premises,  directs  that 
the  same  be  retained  to  the  extent  of  $439.13^ 
and  the  remainder  thereof  be  forthwith  paid- 
over  to  the  defendants  Blakemore  and  Ked- 
ney,  executors.  The  court  at  this  time  also 
makes  an  order  interpleading  the  county  of 
Cass  as  a  party  defendant  In  the  condemna- 
tion proceedings,  and  this  order  is  made 
nunc  pro  tunc  as  of  December  16,  1906."  This 
order  is  now  the  subject  of  an  appeal  by  the 
defendants  to  the  condemnation  suit. 

Appellant  contends  that  the  district  court 
committed  error  by  the  entry  of  the  order 
above  quoted  in  tiie  following  particulars: 
First.  The  trial  court  ought  not  to  have  made 
the  order  interpleading  Cass  county  after  the 
case  had  been  tried,  judgment  entered  on  the 
verdict,  and  that  Judgment  had  been  paid. 
Second.  The  trial  court  ought  not  to  have 
made  an  order  the  effect  of  which  was  to 
modify  a  final  Judgment  The  proper  proce- 
dure was  to  open  up  or  set  aside  the  final 
Judgment  entered,  determine  the  rights  of 
the  Intervener,  and  enter  a  new  Judgment 
giving  therein  to  the  intervener  such  relief 
as  it  might  be  entitled  to.  Third.  The  order 
was  void  because  It  was  an  attempt  to  en- 
force delinquent  taxes  in  a  manner  not  au- 
thorized by  statute.  From  a  comparison  of 
the  prayer  of  the  petition  of  Cass  county 
with  the  order  made  by  the  district  court.  It 
is  apparent  that  the  order  obtained  is  much 
broader  than  the  request  of  the  county.  It 
prayed  for  a  distribution  of  the  fund  created 
by  the  award  in  the  condemnation  suit  It 
obtained  an  order  Interpleading  It  as  a  party 
defendant  In  the  condemnation  proceedings, 
and  directing  that  a  portion  of  ute  award  be 
retained  by  the  court  until  the  final  deter- 


•Fw  etlier  easM  n«  urn*  topic  ud  mcUob  NUMBER  In  Ow.  *  Am.  Dlft.  UOT  to  data,  *  RcpoHor  Indezoi 


Digitized  by 


Google 


N.  D.) 


ST.  PAUL,  H.  &  M.  R.  CO.  t.  BLAEEMORB. 


835 


mlnatlon  of  the  tax  proceeding  brought  by 
Cass  connty  against  the  property  In  question. 
As  the  scope  of  the  order  is  not  made  the 
rabject  of  exception  by  appellant,  It  will  be 
presumed  that  all  matters  Included  In  its 
provisions  were  either  within  the  purview  of 
the  order  to  show  cause,  or  were  suggested 
and  duly  considered  on  the  hearing. 

This  brings  us  to  a  consideration  of  the 
first  point  made  by  appellant  that  the  dis- 
trict court,  on  the  procedure  instituted  by  the 
county,  was  not  authorized  to  make,  after 
Judgment  In  the  action,  an  order  interplead- 
ing Cass  county  and  making  it  a  defendant  in 
the  condemnation  suit.  Respondent  contends 
that  authority  for  such  an  order  is  contain- 
ed in  sections  6824,  6825,  Rev.  Codes  1905. 
The  section  first  mentioned  reads  as  follows: 
"The  court  may  determine  any  controversy 
between  the  parties  before  it,  when  it  can 
be  done  without  prejudice  to  the  rights  of 
others,  or  by  saving  their  rights ;  but  when  a 
complete  determination  of  the  controversy 
cannot  be  had  without  the  presence  of  other 
parties,  the  court  must  cause  them  to  be 
brought  in."  This  section  is  simply  the  codi- 
fication of  a  familiar  rule  of  equity,  provided 
for  the  purpose  of  bringing  before  the  court 
any  person  whose  interest  is  so  interwoven 
with  the  matter  In  controversy  that  a  full 
and  complete  determination  cannot  be  had  in 
his  absence.  In  all  cases  where  full  adjudi- 
cation can  be  had  without  the  presence  of 
additional  parties  the  express  mandate  of 
the  statute  forbids  that  they  be  brought  in. 
Northwestern  Telephone  Ezch.  Co.  t.  N.  P. 
By.  Co.,  9  N.  D.  339,  83  N.  W.  216. 

The  Judgment  in  a  case  is  a  final  deter- 
mination of  all  controversies  presented,  as 
well  as  of  the  rights  of  all  parties  to  the  ac- 
tion. If  the  presence  of  Cass  county  as  a 
party  was  necessary  to  a  full  determination 
of  the  controversy,  then  Judgment  could  not 
have  been  entered  without  its  being  brought 
in.  The  fact  that  the  condemnation  suit 
was  fully  determined  in  its  absence  is  the 
best  evidence  of  the  fact  that  its  presence 
was  not  necessary.  It  is  true  that  Cass  coun- 
ty claimed  a  lien  upon  the  property  involved 
In  the  condemnation  suit  This,  of  itself, 
however,  does  not  require  its  presence  as  a 
defendant.  Neither  mortgagees  nor  lienors 
are  necessary  parties  to  a  condemnation  suit 
Chicago,  etc.,  R.  R.  Co.  T.  Sheldon,  63  Kan. 
189,  35  Pac.  1106;  2  Lewis,  Eminent  Domain, 
f  325. 

Section  6825,  Rev.  Codes  1906,  is  as  fol- 
lows: "Any  person  may  before  the  trial  in- 
tervene in  an  action  or  proceeding,  who  has 
an  interest  in  the  matter  in  litigation  in  the 
success  of  either  party,  or  an  Interest  against 
both.  An  Intervention  takes  place  when  a 
third  person  is  permitted  to  become  a  party 
to  an  action  or  proceeding  between  other 


persons,  either  by  Joining  the  plaintiff  in 
claiming  what  is  sought  by  the  complaint,  or 
by  uniting  with  the  defendant  in  resisting 
the  claims  of  the  plaintiff,  or  by  demanding 
anything  adversely  to  both  the  plaintiff  and 
the  defendant,  and  is  made  by  complaint  set- 
ting forth  the  grounds  upon  which  the  inter- 
vention rests,  filed  by  leave  of  the  court  and 
served  upon  the  parties  to  the  action  or  pro- 
ceeding who  have  not  appeared,  and  upon  the 
attorneys  of  the  parties  who  have  appeared, 
who  may  answer  or  demur  to  it  as  if  it  was 
an  original  complaint"  It  will  be  noted  that 
the  right  to  Intervene  in  a  pending  action,  as 
provided  for  in  this  section,  exists,  if  at  all, 
only  before  the  trial.  The  reason  for  this  Is 
readily  apparent  The  rights  of  a  party  who 
intervenes  after  trial  cannot  be  determined 
by  the  Judgment.  His  presence  at  such  a 
time  would  be  prejudicial  to  both  parties  t» 
the  suit.  As  the  existence  and  extent  of  his 
right  is  wholly  undetermined,  he  cannot  then 
ask  to  be  permitted  to  have  the  same  relief 
as  the  other  plaintiffs  against  the  defend- 
ants ;  neither  is  he  entitled  to  share  with  the 
parties  who  have  taken  part  in  the  trial  the 
fruits  of  the  litigation.  If  the  petition  in 
intervention  clearly  established  the  fact  that 
the  intervener  has  an  adjudicated  or  unques- 
tioned Interest  in  the  Judgment  which  bad 
been  recovered,  a  different  case  would  be  pre- 
sented. In  the  case  at  bar,  however,  a  con- 
vincing and  undisputed  claim  to  such  an  In- 
terest does  not  appear  in  the  procedure  in 
intervention.  Whether  or  not  in  a  proper 
action  Cass  county  may  be  able  to  eetablisb 
its  right  to  transfer  its  lien  for  taxes  from 
the  property  taxed  to  the  award  in  the  con- 
demnation suit,  and  to  have  a  portion  of  the 
award  held  by  the  court  to  await  the  deter- 
mination of  its  proceeding  to  perfect  its  tax 
lien,  is  not  necessary  for  this  court,  upon  this 
appeal,  to  decide.  It  is  only  necessary  to 
say  that  In  the  procedure  adopted,  such  right 
does  not  clearly  and  unmistakably  appear. 
In  its  application  to  intervene  Cass  county 
must  be  regarded  simply  as  a  party  who  asks, 
after  Judgment  In  an  action,  for  leave  to 
have  its  rights  litigated.  It  is  clear  that  no 
authority  exists  for  jpermittlng  a  party  under 
such  conditions  to  Intervene  or  Interplead. 
It  is  equally  clear  that  Cass  county  is  not 
a  party  whose  presence  was  necessary  to  a 
full  determination  of  the  controversy.  Noth- 
ing stated  herein  in  any  manner  affects,  or  Is 
intended  to  affect,  the  order  made  in  the  tax 
case ;  that  order  not  being  before  us  for  con- 
sideration. 

The  order  appealed  from  is  therefore  re- 
versed, and  the  district  court  directed  to 
vacate  the  same.    All  concur. 

MORGAN,  a  J.,  did  not  parttdpate. 


Digitized  by 


Google 


33ft 


122  NOBTHWESTBRN  BEPORTEB. 


(N.D. 


HODGSON  r.  STATE  FINANCE  CO.  et  al. 

(Supreme  Court  of  North  Dakota.     June  12, 
1909.) 

1.  Taxation  (J  420*)— Dbscbiption  of  Pbop- 

XBTV. 

A  sufficient  description  of  the  property  in- 
tended to  be  assessed  and  taxed  is  essential  to  a 
valid  tax. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  |  711;   Dec.  Dig.  g  420.*] 

2.  Taxation   (J    703*)— Redemption— Notice 
—Service. 

Service  of  the  notice  of  the  time  when  the 
period  for  redemption  from  a  tax  sale  will  ex- 

£ire  on  the  bolder  of  a  void  tax  deed  as  owner 
I  not  effectual  for  any  purpose. 
[Ed.    Note.— For   other   cases,   see   Taxation, 
Cent.  Dig.  i  1424;    Dec.  Dig.  |  703.*] 

8.  Taxation    ({    703*)— Redeuftion— Notice 

— Sebvice. 

Service  of  the  notice  of  the  time  when  the 
period  for  redemption  from  a  tax  sale  will  ex- 
pire must  be  made  upon  the  owner  of  the  land 
personally,  if  linown  to  be  a  resident  of  the 
state ;  but  if  the  owner  be  a  nonresident,  serv- 
ice shall  be  made  by  registered  letter,  addressed 
to  tbe  owner's  last  known  post  office  address, 
and  must  also  be  served  personally  on  the  per- 
son in  possession. 

[Ed.  Note. — For  other  cases,  see  Taxation, 
Cent.  Dig.  {  1424;    Dec.  Dig.  S  705.*] 

4.  Taxation  (§  G86*)— Tax  Sale  Cebtificate 

— Lien. 

Tax  sale  certificates,  barred  by  the  provi- 
sions of  chapter  103,  p.  220,  Laws  1901,  are 
not  liens  on  the  land. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  i  1377;    Dec.  Dig.  {  686.*] 

6,   MOBTGAOEB  ({  338*)— FOBECLOSUBE  BT  AD- 

vebtisement- Injunction. 

The  purchaser  of  land  at  a  tax  sale  cannot 
avail  himself  of  the  ex  parte  remedy  provided 
by  section  7454  of  the  Revised  Codes  of  1905  to 
enjoin  the  foreclosure  of  a  mortgage. 

[Ed.  Note. — For  other  cases,  see  Mortgages, 
Cent.  Dig.  H  1020-1033;    Dec  Dig.  {  338.*] 

6.  Laches. 

Under  the  evidence  in  this  case,  the  plain- 
tiff cannot  complain  of  the  laches  of  the  de- 
fendant and  its  predecessors  In  interest  prior  to 
the  mortgage  foreclosure. 

7.  Taxation    (S    739*)  —  Sales  —  Rights   of 
PuRCHASEB— Rents. 

The  purchaser  at  a  mortgage  foreclosure 
is,  under  the  facts  in  this  case,  entitled  to  tbe 
rents  and  profits  during  tbe  period  of  redemp- 
tion. 

[EM.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  g  1470;    Dec.  Dig.  i  739.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Sargent  Coun- 
ty;  Frank  P.  Allen,  Judge. 

Action  by  Mnr-  S.  Hodgson  against  the 
State  Finance  Company  and  another.  Judg- 
ment for  tbe  finance  company,  and  plaintiff 
appeals.    Modified  and  afflrmed. 

C.  E.  Wolfe,  J.  E.  Bishop,  and-  C.  D.  Aus- 
tin, for  api)ellant  Wicks,  Paige  &  Lamb,  for 
respondent. 

CARMODT,  J.  This  case  is  here  for  trial 
de  novo  of  all  the  issues  pursuant  to  an  ap- 
peal by  plaintiff,  who,  claiming  to  be  the 


owner  in  fee  of  the  S.  E.  ^  of  section  22  la 
township  131  N.,  of  range  66  in  Sargent  coun- 
ty, N.  D.,  brought  this  action  Ita  statntorr 
form  to  determine  adverse  claims.  Defend- 
ant State  Finance  Company  answered,  claim- 
ing to  be  the  owner  and  holder  of  a  certifi- 
cate of  mortgage  foreclosure  sale,  which  cer- 
tificate was  based  upon  the  foreclosure  of  a 
first  mortgage  of  the  premises,  and  denying 
that  the  plaintiff  had  any  title,  right,  estate, 
lien,  or  interest  in,  or  upon  said  land,  or  any 
part  thereof.  The  plaintiff  claims  title  to 
said  land  by  virtue  of  three  tax  deeds;  one 
running  to  J.  H.  Devenney,  based  on  tbe 
1895  tax  sale  for  the  taxes  of  1894 ;  a  special 
warranty  deed  from  said  Devenney  to  E.  J. 
Hodgson,  husband  of  the  said  plaintiff;  a 
warranty  deed  from  E.  J.  Hodgson  and  Mary 
S.  Hodgson,  bis  wife,  to  Lucille  Hodgson; 
and  a  deed  from  said  Lucille  Hodgson  to 
the  plaintiff,  and  also  by  virtue  of  two  cer- 
tain other  tax  deeds,  running  to  plaintiff, 
dated  September  16,  1904,  one  for  the  taxes 
of  1897,  and  one  for  the  taxes  of  1898.  Plain- 
tiff is  the  owner  of  tax  sale  certificates  l>ased 
on  sales  for  the  taxes  of  1887, 1892, 1893, 1895, 
1896,  and  1900,  and  holds  receipts  for  the 
taxes  of  1888,  1889,  1890,  1891,  1899,  and  1901 
paid  under  said  sales.  The  defendant,  hav- 
ing obtained  a  sheriff's  deed  before  the  trial 
of  this  action  on  account  of  tbe  mortgage 
foreclosure  sale  mentioned  In  its  answer, 
claims  to  be  the  owner  of  the  patent  title  to 
said  land  under  said  mortgage  foreclosure. 
On  July  24,  1885,  one  Sarah  E.  Bowen,  who 
was  the  owner  of  said  land,  made  and  deliver- 
ed to  one  A.  P.  Blunt  her  certain  mortgage 
deed  of  said  land  to  secure  her  note  to  said 
Blunt,  of  even  date  for  the  sum  of  $300.  That 
some  time  during  the  year  1896  she  abandon- 
ed said  land,  and  removed  from  this  state. 
That  in  tbe  year  1900  she  died,  leaving  four 
minor  children.  The  said  A.  P.  Blunt  died 
intestate,  at  Manchester,  in  the  state  of  New 
Hampshire,  which  was  the  place  of  his  resi- 
dence. On  the  Ist  day  of  November,  1889, 
Mary  A.  Blunt  was  appointed  administra- 
trix of  bis  estate,  and  was  on  tbe  16th  day 
of  February,  1904,  tbe  duly  appointed  and 
acting  administratrix  of  the  said  estate,  and 
on  that  date,  as  sncb  administratrix,  assign- 
ed by  an  instrument  in  writing  the  mortgage 
hereinbefore  mentioned,  and  the  indebtedness 
evidenced  thereby,  to  this  defendant.  Said 
mortgage  and  assignment  are  both  recorded 
in  tbe  office  of  the  register  of  deeds  in  and 
for  the  said  county  of  Sargent  On  May  2, 
1904,  the  defendant  duly  foreclosed  said 
mortgage,  and  became  the  purchaser  of  the 
mortgaged  premises  at  the  foreclosure  sale, 
and  obtained  a  sheriff's '  certificate  of  sale 
thereof,  which  said  certificate  of  sale  is  re- 
corded in  the  office  of  tbe  said  register  of 
deeds.  That  no  redemption  was  made  from 
said  foreclosure  sale,  and  on  May  3,  1905,  a 
sheriff's  deed  was  duly  issued  to  said  defend- 


•For  other  cases  see  same  topic  and  section  NUMBER  in  Deo.  t  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  LjOOQIC 


N.D.) 


HODGSON  V.  STATE  FINANCE  CO. 


38*r 


ant  The  plalntlfF  and  her  predecessor  un- 
der said  tax  deeds  and  certificates  of  sale 
were  In  possession  of  said  premises  by  tenant 
for  a  period  of  about  six  years,  and  col- 
lected about  flOO  as  rental  for  said  premises. 
On  the  23d  day  of  April,  1904,  the  district 
court  of  Sargent  county  made  an  order  en- 
joining the  foreclosure  of  the  mortgage  here- 
in mentioned,  -which  order  was,  without  no- 
tice to  plalntur,  vacated  on  the  2d  day  of 
May,  1904.  The  trial  court  made  flndlnRS  of 
fact  and  conclusions  of  la-w,  on  which  Judg- 
ment was  entered  adjudging  and  decreeing 
that  the  defendant  State  Finance  Company  Is 
the  owner  in  fee  simple  of  said  land,  and  that 
plaintiff  has  no  estate  or  Interest  In,  or  lien  or 
Incumbrance  upon,  said  premises,  except  that 
she  holds  tax  sale  certificates  for  the  taxes 
of  1896,  1897,  1898,  and  1900,  with  1899  and 
1901  taxes  paid  as  subsequent  thereto,  which 
are  liens  on  said  land.  From  which  taxes 
and  tax  sales  the  said  defendant  la  authorized 
to  redeem,  and  to  be  allowed,  as  credit  on  the 
legal  amount  required  to  redeem,  the  sum 
of  JlOO  collected  by  plaintiff  and  her  grantor 
as  rent  for  said  land,  from  which  Judgment 
this  appeal  is  talcen. 

Appellant  asks  a  reversal  or  modification  of 
the  judgment,  on  the  grounds  that  the  tax 
deeds  mentioned  are  valid,  but.  If  Invalid,  that 
she  is  at  all  events  entitled  to  an  equitable 
lien  upon  the  land  for  the  total  amonnt  paid 
on  the  tax  sales,  and  other  taxes  paid  against 
the  land;  that  the  defendant  is  not  In  any 
event  entitled  to  the  rents  of  said  land,  or  to 
have  the  amount  thereof  credited  to  It  on 
account  of  redemptions  from  the  tax  sales 
of  said  land;  that  the  statute  of  limitations 
bad  run  against  the  Blunt  mortgage,  and 
foreclosure  of  said  mortgage  had  become  bar- 
red in  law  and  equity  by  the  laches  of  de- 
fendant and  its  predecessors  In  Interest  prior 
to  the  alleged  foreclosure,  and  the  foreclo- 
sure sale  of  the  Blunt  mortgage  was  enjoin- 
ed by  an  order  of  the  Judge  of  the  district 
court,  which  was  in  force  at  the  time  of  the 
alleged  foreclosure  sale,  because  of  which  or- 
der said  alleged  sale  Is  void.  The  tax  deed 
to  John  H.  Devenney  based  on  the  taxes  of 
1894,  runs  in  the  name  of  the  county  of  Sar- 
gtot  as  grantor,  instead  of  the  state  of  North 
Dakota,  and  was  absolutely  void  for  that 
reason.  State  Finance  Comm.  v.  Beck,  15  N. 
D.  374,  109  N.  W.  357 ;  Beggs  v.  Paine,  15  N. 
D.  436,  109  N.  W.  822.  The  tax  deeds  issued 
for  the  taxes  of  1897  and  1898  are  void. 
There  was  no  proper  service  of  the  notice  of 
the  expiration  of  redemption.  Section  1289 
of  the  Revised  Codes  of  1899  requires  notice 
to  be  addressed  to  the  person  in  whose  name 
the  land  was  assessed,  and  it  requires  that 
this  notice  be  served  upon  the  owner  of  the 
land  personally,  if  Icnown  to  be  a  resident  of 
the  state ;  but.  If  the  owner  be  a  nonresident, 
service  shall  be  made  by  registered  letter,  ad- 
dressed to  the  owner's  last  known  post  of- 
fice address.  This  service  by  registered  mall 
is  required  in  aU  cases  where  the  owner  Is  a 
122N.W.-22 


nonresident,  in  addition  to  service  by  pub- 
lication, and  In  addition  to  service  upon  the 
person  in  possession.  The  notice  was  not 
mailed  to  the  then  record,  owner,  nor  to 
Sarah  E.  Bowen,  or  her  heirs;  it  appearing 
on  the  trial  of  this  action  that  she  was  not 
living  at  the  time  the  notice  was  given,  but 
was  survived  by  four  minor  children.  There 
was  no  service  made  upon  Frank  Anderson, 
the  person  in  poesession  of  the  land.  The  on- 
ly service  made,  or  attempted  to  be  made  by 
registered  mall,  was  upon  John  H.  Devenney. 
The  auditor,  in  serving,  or  attempting  to 
serve,  the  notice  on  John  H.  Devenney  by 
registered  mail,  undoubtedly  proceeded  on  the 
theory  that  he  having  the  tax  deed  was  the 
owner  of  the  land,  and  the  only  person  en- 
titled to  notice.  His  tax  deed  was  void  on 
its  face,  and  notice  to  him  was  insufficient. 
State  Finance  Comm.  v.  Beck  et  al.,  supra; 
State  Finance  Comm.  y.  Mulberger,  16  N.  D. 
214,  112  N.  W.  986. 

Frank  Anderson  was  the  person  in  posses- 
sion within  the  meaning  of  the  law,  and  no- 
tice should  have  l>een  served  upon  him. 
Bradley  v.  Brown,  75  Iowa,  180,  39  N.  W. 
258;  Hlntrager  v.  McElhinny,  112  Iowa,  325, 
82  N.  W.  1008,  83  N.  W.  1063.  The  taxes  for 
the  years  1887,  1888,  1889,  1890,  and  1891 
were  void  on  their  face.  They  described  no 
land.  The  only  attempted  description  is  the 
"S.  E.  4."  This  court  has  held  several  times 
that  such  description  makes  the  taxes  Jurls- 
dlctlonally  void.  Power  v.  Larabee,  2  N.  D. 
141,  49  N.  W.  724;  O'Nell  v.  Tyler,  8  N.  D. 
47,  63  N.  W.  434 ;  Roberts  v.  Bank,  8  N.  D. 
504,  79  N.  W.  1049;  Sheets  v.  Paine,  10  N.  D. 
103,  80  N.  W.  117 ;  Eaton  v.  Bennett,  10  N. 
D.  346,  87  N.  W.  188;  State  Finance  Comm. 
V.  Beck  et  al.,  16  N.  D.  375,  109  N.  W.  357 ; 
State  Finance  Comm.  v.  Mather,  16  N.  D.  386, 
109  N.  W.  350 ;  State  Finance  Comm.  v.  Mul- 
berger, 16  N.  D.  214,  112  N.  W.  986;  State 
Finance  Comm.  v.  Trimble,  16  N.  D.  199,  112 
N.  W.  984.  Plaintiffs  holds  three  other  cer- 
tificates, one  Issued  In  1893  for  the  taxes  of 

1892,  one  issued  in  1894  for  the  taxes  of 

1893,  and  one  issued  in  1896  for  the  taxes  of 
1895,  which  were  disallowed  by  the  district 
court,  and  we  think  correctly.  These  certifi- 
cates are  barred  by  the  provisions  of  chapter 
165,  p.  220,  Laws  1901.  State  Finance  Comm. 
V.  Mather,  15  N.  D.  386,  109  N.  W.  350.  The 
injunction.  Issued  at  the  request  of  appellant 
restraining  the  foreclosure  of  the  mortgage 
by  advertisement,  was  Improvldently  Issued. 
The  plaintiff  was  not  the  mortgagor,  and  was 
not  claiming  title  to  the  mortgaged  premises 
under  and  in  privity  with  the  original  mort- 
gagor. Her  only  title  to  the  premises  was 
by  tax  deed,  and  she  was  not  entitled  to  avail 
herself  of  the  ex  parte  remedy  provided  by 
section  7454,  Rev.  Codes  1905,  to  enjoin  the 
foreclosure  of  a  mortgage,  and  cannot  com- 
plain of  its  dissolution.  Scott  &  Wheeler  t. 
District  Court,  15  N.  D.  259,  107  N.  W.  61, 
The  appellant  admits  that  there  was  no  stat- 
utory limitation  applicable  to  this  mortgage, 


Digitized  by 


Google 


338 


122  NORTHWESTERN  REPORTER. 


(N.I>. 


limiting  the  time  within  which  It  might  be 
foreclosed  by  adTertlsement.  We  do  not 
think  that  the  plaintiff  can  complain  of  the 
laches  of  the  defendant  and  Its  predecessors 
In  Interest  prior  to  the  mortgage  foreclosure. 
State  Finance  Comm.  y.  Halstenson  (N.  D.) 
114  N.  W.  724. 

But  one  other  qnestlon  remains. .  The  trial 
court  allowed  defendant,  as  an  offset  to  plain- 
tiff's tax  Hens,  $100,  being  the  rent  collected 
by  the  plnintUF  and  her  predecessor  In  In- 
terest B.  Hodgson.  This  was  error,  as  the 
most  It  was  entitled  to  was  the  rent  for  the 
years  of  1904,  1905,  and  1906,  being  several 
dollars  In  oU.  which  was  collected  after  the 
foreclosure  of  the  mortgage.  The  district 
court  is  directed  to  modify  Judgment  in  this 
particular.  No  costs  will  be  allowed  either 
party  in  this  court. 

Modified  and  affirmed.    All  concur. 

*  MORGAN,  C.  J.,  not  participating. 


BOSCHKER    T.    VAN    BBEK. 

(Supreme  Court  of  North  Dakota.     June  22, 
1909.) 

1.  MOBTOAOBS  (S  538*)— MOBTOAQBK  lit  POS- 
SESSION—INVALID     FORECLOSUBB. 

The  holder  of  a  sheriff's  certificate  of  sale, 
or  of  a  sheriff's  deed  under  an  Invalid  foreclo- 
sure of  a  real  estnte  mortgage  by  advertisement, 
in  possession  of  the  mortgaged  premises,  with 
at  least  the  implied  consent  of  the  mortgagor, 
is  a  mortgagee  in  possession. 

(Ed.   Note.— For  other  cases,  see  Mortgages, 
Dec.   Dig.  {  63&*] 

2.  Limitation  of  Actions  (§  165*)— Opera- 
tion AND  Effect. 

A  grantee  of  the  mortgagor  cannot  main- 
tain an  action  to  cancel  the  sheriff's  certificate 
and  deed,  as  against  the  mortgagee  in  posses- 
sion, witnout  paying  the  mortgage  debt,  even 
though  the  statute  of  limitations  has  run 
against  the  mortgage. 

[Ed.  Note.— For  other  cases,  see  Limitation  of 
Actions,  Dec.  Dig.  {  165.*] 

8.  EXECUTOBS  AND  Aduinistbatobs  (8  43*)— 

PEBSONAI.    PBOPEBTT— CKBTinCATK  OF  FOBE- 

CLOSURE  OF  Sale. 

A  sheriff's  certificate  of  sale,  under  fore- 
closure by  advertisement,  is  personal  property 
and  transferable  by  the  executor  of  the  deceased 
mortgagee  in  whose  name  the  certificate  was 
issued  by  assignment  under  the  laws  of  Massa- 
chusetts. 

[Ed.   Note.— For  other  cases,   see   Executors 
and  Administrators,  Dec.  Dig.  t  ^•*] 

4.  Executors  and  Administbators  (|  107*) 
—Admissions  bt  EzEcirroB— Fobeclosube 
Ckbtificatb— Validitt. 

It  not  appearing  in  this  case,  definitely, 
whether  the  sheriff's  certificate  of  sale  referred 
to  in  the  preceding  paragraph  was  held  in 
Massachusetts  or  in  this  state,  but  the  will  of 
the  deceased  certificate  holder  having  also  been 
probated  in  this  state,  and  the  assignment  of 
such  certificate  for  a  valuable  consideration 
paid  the  executor  having  been  approved  by  the 
probate  court  and  acquiesced  in  by  the  devisees. 
It  transferred  the  interests  of  the  deceased 
holder  and  the  devisees  to  the  assignee  of  the 


executor,  in  case  it  was  held  by  sncfa  executor 
in  this  state. 

[Ed.  Note.— For  other  cases,  see  Executor* 
and  Administraton,  Dec  Dig.  I  167.*J 

(Syllabus  by  the  Court,) 

Appeal  from  District  Court,  Bmmona 
County;  Winchester,  Judge. 

Action  by  Peter  Boschker  against  Henry- 
Tan  Beek.  Judgmoit  for  plaintiff,  and  de- 
fendant appeals.    Reversed. 

H.  A.  Armstrong  and  John  H.  Perry,  for 
appellant  George  W.  Lynn  and  G.  N.  Wil- 
liamson, for  respondent. 

SPALDING,  J.  Action  to  cancel  a  sher- 
IfTs  certificate  of  sale  on  foreclosure  of  real 
estate  by  advertisement  and  the  sheriff's 
deed  Issued  thereunder,  and  to  enjoin  the 
defendant  from  asserting  any  .interest  In 
the  premises  described.  Plaintiff  had  Judg- 
ment, and  defendant  appeals.  It  is  unnec- 
essary to  quote  the  pleadings. 

It  appears  by  uncontradicted  evidence  that 
one  Hannah  K.  Lorlng,  a  resident  of  Massa- 
chusetts, made  a  loan  of  $425  to  one  Homme 
Boschker,  and  took  as  security  therefor  a 
mortgage  upon  the  N.  E.  %  o'  section  22  in 
township  129  N.  of  range  76  W.,  In  Emmons 
county,  N.  D.  This  mortgage  was  executed 
and  delivered  by  Boschker  to  Lorlng  about 
the  16th  day  of  June,  1889,  and  recorded  In 
the  oflSce  of  the  register  of  deeds  of  Em- 
mons county  on  the  2d  day  of  August,  1889. 
The  mortgagor  is  dead,  and  the  plaintiff  and 
respondent  is  his  son.  The  appellant  signed 
the  mortgage  note  and  two  others  given  by 
other  parties  to  Hannah  K.  Lorlng,  as  guar- 
antor. Little  or  nothing  was  ever  paid  on 
the  interest  or  taxes  by  the  mortgagor,  and 
no  part  of  the  principal  has  been  paid.  On 
the  9th  day  of  September,  1898,  the  firm  of 
Herreld  &  Williamson,  of  South  Dakota,  hav- 
ing been  employed  by  the  mortgagee  for 
that  purpose.  Issued  a  notice  of  foreclosure 
sale  by  advertisement  to  foreclose  such  mort- 
gage, claiming  that  there  was  then  due  there- 
on the  sum  of  $1,092.08.  Due  publication 
was  made,  and  the  premises  were  sold  on 
the  5th  day  of  November,  1898,  and  struck 
off  to  Hannah  K.  Lorlng,  the  mortgagee,  for 
the  sum  of  $550,  and  a  sherUTs  certificate  is- 
sued in  her  name  and  delivered  to  her  at- 
torneys. This  certificate  was  duly  recorded 
In  the  office  of  the  register  of  deeds  of  Em- 
mons county,  N.  D.,  on  the  14th  day  of  No- 
vember, 1808.  While  the  notice  of  sale  was 
running  in  the  newspaper,  Hannah  K.  Lor- 
lng died.  It  docs  not  appear  from  the  rec- 
ord whether  her  attorneys  were  ignorant  of 
her  death  at  the  time  of  the  sale;  but  we 
presume  they  were.  She  left  a  will  appoint- 
ing one  Batcbelder  executor,  and  in  due  time 
he  qualified  as  such  in  the  state  of  Massa- 
chusetts, and  Herreld  &  WllUamBon  there- 
after acted  as  his  attorneys  In  relation  to 


•For  otliar  cue*  see  saio«  topic  and  section  NUMBEB  In  Deo.  &  Am.  Diss.  U07  to  dkU,  *  Reportor  laUczw 


Digitized  by  LjOOQ  IC 


N.D.) 


BOSCHEBB  T.  VAN  BEEE. 


339 


the  mortgage  In  qnestloo  and  the  notes  on 
which  appellant  'waa  guarantor.  Iliey  sued 
appellant  in  South  Dakota  to  recover  the 
balance  due  on  such  notes  after  foreclosure 
and  be  paid  such  balance  and,  among  other 
things,  took  an  assignment  of  the  sberift's 
certificate  of  the  Boschker  mortgage  at 
figures  amounting  to  something  over  $700; 
the  land  then  being  worth  from  $700  to 
$800.  This  assignment  bore  date  March  29, 
1900,  and  was  duly  recorded  in  Emmons 
county.  At  the  time  of  the  assignment  of 
the  certificate  to  appellant,  Williamson  rep- 
resented to  him  that  it  was  perfectly  good. 
The  money  received  by  Williamson  from 
appellant  was  transmitted  to  the  executor  of 
Lorlng's  will  and  by  him  paid  to  her  devisees 
and  heirs,  and  his  account  showing  such  pay- 
ment was  approved  by  the  probate  court  in 
Massachusetts.  The  Loring  will  was  subse- 
quently probated  in  Emmons  county  and  the 
sale  of  the  certificate  approved  by  the  court. 
May  6,  1906,  the  land  not  having  been  re- 
deemed, the  sheriff  of  £mmons  county  ex- 
ecuted his  deed  therefor  to  appellant  as  as- 
Bignee  of  the  certificate  of  sale,  and  this  deed 
was  duly  recorded.  February  8, 1904,  George 
W.  Lynn,  an  attorney  residing  at  Linton,  N. 
D.,  wrote  a  letter  to  Batchelder,  the  executor, 
as  follows:  "Linton,  N.  D.,  Feb.  8,  1904. 
John  M.  Batchelder,  HoUiston,  Mass. — 
Kind  Sir:  Tour  favor  of  the  2d  Inst  receiv- 
ed and  contents  noted,  and  your  promptness 
in  answering  my  former  letter  is  appreciat- 
ed. A  client  of  mine  has  requested  that  I 
pass  upon  the  title  of  certain  tracts  of  land 
in  this  county  in  which  the  late  Hannah  K. 
Loring  bad  an  estate  prior  to  her  death.  I 
wish  to  state  at  this  time  that  the  purpose 
of  my  correspondence  with  you  is  not  ad- 
verse in  any  manner  to  the  interests  of  your- 
self or  of  the  heirs  and  devisees  of  the  said 
Hannah  K.  Loring;  but  is  for  the  purpose  of 
perfecting  a  good  and  unquestionable  title  to 
the  said  tracts.  To  this  end  I  have  advised 
that,  in  order  to  obtain  such  title,  he  should 
secure  a  certified  copy  of  the  will  which  has 
been  probated  in  yotir  state,  together  with 
quitclnlms  from  the  heirs  and  devisees  of  the 
late  Hannah  K.  Ix>ring,  all  of  which  should 
be  placed  of  record  in  this  state.  Will  you 
undertake  to  secure  the  quitclaims,  and  in 
your  opinion  what  will  be  the  cost  of  secur- 
ing tbem,  including  your  services,  providing 
I  prepare  all  papers  according  to  the  laws 
of  our  state,  and  you  attend  to  having  the 
same  executed?  I  have  this  day  written  the 
register  of  probate  to  ascertain  the  cost  of 
securing  the  certified  copy  of  the  will,  and 
-when  I  have  heard  from  you,  and  if  every- 
thing is  satisfactory  to  my  client,  I  will  send 
yon  the  papers,  together  with  a  draft  for 
the  amount  An  early  reply  will  be  appre- 
ciated, and  In  any  event  I  will  compensate 
you  for  yonr  trouble.  Yours,  Geo.  W.  Lynn. 
rDic.)"  And  in  response  thereto,  and  for  the 
sum  of  $2.50  each,  the  cost  of  executing 
deeds,   be  received   quitclaim   deeds   from 


the  devisees  under  the  will  of  Hannah  K. 
Loring  to  the  premises  In  question,  wlilcb 
were  recorded  in  Elmmons  county  on  the 
25th  day  of  June,  1904.  The  executor  testi- 
fies: That  he  paid  the  money  received  for 
the  certificate  to  the  devisees  under  the  will; 
that  no  objection  was  made  by  tbem  to  the 
sale  and  assignment  of  the  sheriff's  certif- 
icate or  the  amount  realized  therefrom;  that 
in  response  to  Lynn's  letter  he  procured  the 
deeds  mentioned,  after  having  referred  the 
matter  to  Herreid  &  Williamson  and  receiv- 
ing their  approval;  that  such  deeds  ran  to 
L.  A.  Wetherby;  that  none  of  the  devisees 
claimed  any  right  title,  or  interest  or  estate 
in  the  land  described  at  the  time  tbey  ex- 
ecuted such  deeds;  that  be  forwarded  them 
to  Lynn  at  Linton,  N.  D.;  and  that  none  of 
such  devisees,  since  the  distribution  of  the 
estate  of  Hannah  K.  Loring,  have  made 
any  claim  to  any  estate,  right  title,  or  In- 
terest in  the  land  in  controversy.  Shortly 
after  appellant  purchased  the  sheriff's  certif- 
icate of  sale,  be  made  a  contract  with  re- 
spondent agreeing  to  sell  him  the  certificate 
of  sale  on  his  making  payment  tlierefor  of 
something  over  $700,  and  under  such  con- 
tract respondent  went  into  and  retained 
possession  of  the  premises  until  April  16, 
1905,  when  be  called  on  appellant  and  rep- 
resented to  him  that  as  the  land  was  quite 
a  distance  from  bis  home,  he  would  rather 
sell  it  back  to  appellant  After  some  dis- 
cussion respondent  executed  an  Instrument 
relinquishing  bis  claim  to  tbe  land  under 
the  contract  with  appellant  In  consideration 
of  $948.50,  being  about  $200  more  than  be 
had  agreed  to  pay  appellant  for  it  At  tbe 
same  time  appellant  leased  him  tbe  land  for 
the  season  of  1005.  It  appears  from  the  evi- 
dence: That  a  few  days  prior  to  the  last 
transaction  described,  respondent  had  learn- 
ed of  the  quitclaim  deeds  procured  by  Lynn 
in  the  name  of  Wetherby ;  that  the  land  had 
Increased  very  materially  in  value;  that  be 
called  upon  Lynn  and  had  a  talk  with  him 
and  Wetherby  with  reference  to  the  title; 
that  Lynn  told  him  to  go  and  make  a  settle- 
ment witb  Van  Beek,  the  appellant  and  of- 
fered bim  a  warranty  deed  of  tbe  land  at 
the  same  price  be  was  to  pay  Van  Beek;  that 
he  took  such  deed  later;  that  Lynn,  advised 
him  that  he  could  prolNibly  get  a  deed  from 
Homme  Boschker,  and  drew  up  such  a  deed 
ready  for  execution;  and  that  he  went  home 
and  took  his  father  before  a  notary  and  had 
him  execute  the  deed.  It  appears  that  these 
negotiations  with  Lynn  and  Wetherby  oc- 
curred a  few  days  before  respondent  saw  ap- 
pellant and  surrendered  his  contract  to  tbe 
land,  and  that  he  surrendered  it  witb  a  view 
to  consummating  this  deal  with  Lynn,  or 
with  Lynn  and  Wetherby,  but  disclosed  to 
Van  Beek  nothing  regarding  It,  but  as  we 
have  shown,  gave  entirely  different  reasons 
for  surrendering  his  contract.  The  deed 
from  Homme  Boschker  to  respondent  was 
executed  on  tbe  19th  day  of  April,  1905, 


Digitized  by  LjOOQ  l€ 


340 


122  NORTHWESTERN  REPORTER. 


(N.  D. 


without  consideration,  and  on  the  same  day 
Wetberby  quitclaimed  to  Lynn  an  undivided 
one-half  of  the  premises,  and  on  the  next 
day,  April  20,  1905,  Wetherby  and  Lynn  gave 
a  warranty  deed  thereof  to  respondent,  and 
on  the  2Ctb  day  of  May,  1905,  Lynn,  evident- 
ly In  conjunction  with  Williamson,  brought 
this  action.  Respondents  contend  that  the 
foreclosure  is  invalid,  and  that  the  sheriffs 
deed  executed  thereunder  conveyed  no  title 
to  appellant 

The  power  of  sale  in  the  mortgage  fore- 
closed Is  a  peculiar  one,  quite  unlike  the 
usual  power  contained  in  mortgages.  It  runs 
to  Hannah  K.  Lorlng,  or  agent  On  the 
death  of  Mrs.  Lorlng,  no  one  was  left  quali- 
aed  under  the  terms  of  the  power  to  continue 
or  complete  the  foreclosure,  and  for  the  pur- 
poses of  this  case  we  may  assume  that  the 
attempted  foreclosure  was  Invalid.  We  have 
held,  in  Winterberg  ▼.  Van  De  Vorste,  122 
N.  W.  806,  that  a  sheriff's  certificate  Is  per- 
sonal property,  and  assignable  by  Mrs.  Lor- 
ing's  executor.  It  does  not  definitely  ap- 
pear whether  the  sheriff's  certificate  of  sale 
was  held  by  the  executor  In  Massachusetts 
or  in  this  state,  or  whether  it  was  assigned 
by  him  as  executor  under  the  will,  in  Massa- 
chusetts or  In  this  state;  but,  in  either  event, 
his  assignment  transferred  the  interests  of 
the  deceased  bolder  and  the  devisees.  The 
purchaser  of  the  certificate  and  those  hold- 
ing under  him  became  equitable  assignees  of 
the  mortgage,  and,  having  taken  possession 
with  at  least  the  implied  consent  of  the  mort- 
gagor, the  appellant  is,  at  least,  a  mortgagee 
In  possession,  and  the  only  remedy  against 
him  Is  by  a  suit  In  equity  and  an  offer  to  re- 
deem. Nash  V.  Land  Company,  15  N.  D.  566, 
108  N.  W.  792.  The  plaintiff  and  respondent 
has  neither  offered  to  redeem,  nor  does  he 
tender  into  court  the  amount  necessary  to 
redeem  from  the  mortgage  given  to  Mrs. 
Lorlng. 

The  respondent  is  not  in  position  to  In- 
voke the  aid  of  a  court  of  equity  to  cancel 
the  mortgage,  or  the  sheriff's  certificate  of 
sale  and  the  deed  issued  thereunder,  or  to 
enjoin  the  mortgagee  in  possession  from  as- 
serting his  rights  in  the  premises,  without 
pnylng.  or  offering  to  pay,  the  amount  due 
tilm.  He  not  only  does  not  come  into  this 
court  with  clean  hands;  but  his  hands  are 
reeking  with  filth.  He  is  attempting  to  avail 
himself  of  the  good  ofiices  of  a  court  of  eq- 
uity while  showing  no  disposition  on  his  own 
part  to  follow  the  plain  paths  of  equitable 
procedure  long  marked  out.  He  appears  to 
be  wholly  destitute  of  the  most  ordinary 
principles  of  fair  play  in  his  and  his  attor- 
neys' dealings  with  appellant  This  case  is 
squarely  within  the  rule  announced  in  Tracy 
et  al.  V.  Wheeler  et  al..  15  N.  D.  248,  107  N. 
W.  68,  6  L.  R  A.  (N.  S.)  516,  and  needs  no 
further  considprntion.  The  appellant  has  not 
sncceeded  in  establishing  a  clear  title  in  him- 


self. Hence  we  cannot  quiet  title  as  prayed 
for  in  his  counterclaim.  See  Winterberg  ▼. 
Van  De  Vorste,  supra. 

The  Judgment  is  reversed,  and  the  district 
court  directed  to  dismiss  the  action.  Ail 
concur. 

MORGAN,  a  J.,  not  participating. 


LEISTIKOW  ▼.  ZUELSDORF. 

(Supreme   Court  of  North  Dakota.     June  29, 
1909.) 

1.  Sales  ({  363*)— Actions  fob  Psice— Ques- 
tion rOB  JUBT. 

Evidence  examined,  and  held  that  the  issue 
Trhetber  defendant  became  primarily  liable  to 
plaintiff  for  the  payment  of  certain  merchandise 
'by  reason  of  bis  having  purchased  the  same 
from  plaintiff,  or  whether  such  sale  was  made 
to  one  U.,  and  the  payment  of  the  purchase 
price  merely  guaranteed  by  defendant,  was 
properly  submitted  to  the  jury. 

[Ed.  Note>— For  other  cases,  see  Sales,  Cent 
Dig.  {  1004 ;   Dec.  Dig.  {  303.*] 

2.  Witnesses  (8  267*)— Cross-EScamination. 

The  origiDal  complaint,  which  was  veri- 
fied by  plaintiff's  attorney,  contained  allegations 
inconsistent  with  the  amended  complaint  upon 
.which  the  case  was  tried,  and  also  inconsistent 
with  plaintiff's  version  of  the  transaction  as 
testified  to  by  him.  Upon  cross-ezamination  of 
plaintiff,  defendant's  counsel  offered  in  evidence 
such  original  complaint  as  a  part  of  such  cross- 
examination,  which  offer  was  objected  to,  and 
the  objection  sustained.  Held,  not  error,  as 
the  offered  proof.  If  admissible,  was  not  proper 
cross-examination,  but  was  a  part  of  defend- 
ant's case,  and  its  reception  at  such  time  was 
discretionary  with   the   trial  court. 

[Ed.  Note. — For  other  cases,  see  Witnesses, 
Cent  Dig.  {  023;    Dec.  Dig.  i  267.*] 

3.  Appeai  and  Ebeob  ({  256*)— Witnesses 
(J  198*)  —  Pbivileoed  Communicatioks  — 
KuLiNos  OF  Pleadings— Necessity  of  Kx- 
ceptions. 

Certain  other  assignments,  based  upon  rul- 
ings in  the  admission  and  rejection  of  testi- 
mony, examined,  and  such  rulings  held  not  prej- 
udicial to  appellant. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  i  1489;  Dec.  Dig.  i  250:* 
Witnesses,  Cent.  Dig.  i  749;  Dec  Dig.  i  lOS.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Walsh  Coun- 
ty;  A.  G.  Burr,  Sl)eclal  Judge. 

Action  by  William  C.  Lelstlkow  against 
Frank  C.  Zuelsdorf.  Judgment  for  plaintiff, 
and  defendant  appeals.    Affirmed. 

Skulason  &  Burtness,  for  appellant  My- 
ers &  Myers  and  E.  R.  Slnkler,  for  respond- 
ent 


FISK,  J.  Action  to  recover  a  balance  of 
$930.47  and  interest,  claimed  to  be  due  plain- 
tiff from  defendant,  on  account  for  flour, 
feed,  and  other  mill  stuffs  sold  and  delivered 
to  defendant  at  his  special  instance  and  re- 
quest The  amended  complaint  upon  which 
the  action  was  tried  alleges  that  such  mer- 
chandise was,  at  defendant's  special  request 


•FM  other  cases  se*  inoie  topii-  and  lection  NUMBER  in  Dee.  A  Am.  Diss.  U07  to  dat*,  *  Reportsr  IndaxM 

Digitized  by  VjOOQ  l€ 


N.D.) 


LEI8TIK0W  V,  ZUBLSDORF. 


841 


dellrered  to  one  Rolcycinskl,  and  charged  to 
the  latter  upon  plainticr's  books,  but  that 
the  same  was  thus  sold  and  delivered  upon 
defendant's  sole  credit  The  defense,  brief- 
ly stated,  is  that  such  goods  were  sold  to 
Rolcyzinskl,  and  not  to  defendant,  and  that 
defendant  never  agreed  to  become  primarily 
liable  for  the  payment  of  the  purchase  price; 
that  any  promise  on  defendant's  part  to  pay 
for  the  same  was  merely  collateral  and  con- 
ditional; that  It  constituted  merely  an  oral 
guaranty  for  the  payment  of  Rolcyzinski's 
Indebtedness,  without  consideration,  and 
hence  is  void  under  the  statute  of  frauds. 
The  Issues  thus  framed  were  submitted  to  a 
Jury,  and  a  verdict  returned  In  plaintUTa 
favor,  pursuant  to  which  a  Judgment  was 
dnly  rendered,  from  which  the  appeal  is 
prosecuted. 

The  first  two  assignments  of  error  are 
predicated  upon  the  rulings  of  the  trial  court 
in  denying  appellant's  motions  for  a  peremp- 
tory Instruction,  made  at  the  close  of  plaln- 
tifTs  case,  and  also  at  the  close  of  the  en- 
tire testimony.  These  are  the  only  assign- 
ments argued  at  any  length  by  appellant's 
counsel.  It  is  of  course  obvious  that  the 
correctness  of  such  rulings  depends  wholly 
upon  the  state  of  the  proof.  If  there  was 
any  evidence  reasonably  tending  to  support 
plaintUT's  version  of  the  transaction,  then 
the  rulings  complained  of  were  eminently 
proper.  A  careful  examination  of  the  rec- 
ord serves  to  convince  us  that  the  state  of 
the  proof  was  such  as  to  necessitate  a  sub- 
mission of  the  case  to  the  Jury.  We  are  not 
concerned  with  the  weight  of  the  testimony, 
nor  the  credibility  of  the  witnesses.  These 
were  questions  for  the  Jury.  Without  at- 
tempting a  review  of  the  testimony  at  length, 
we  will  briefly  refer  to  It  in  support  of  our 
conclusion  that  a  substantial  conflict  exists, 
and  that  there  Is  sufiBcient  testimony,  if 
worthy  of  credence,  to  Justify  the  verdict 
rendered. 

Plaintiers  cause  of  action  Is  based  upon 
sales  alleged  to  have  been  made  to  defendant 
between  January  6,  and  March  20,  1905.  It 
is  uncontradicted  that  for  some  time  prior 
thereto  defendant  had  furnished  to  Rolcy- 
zinskl similar  merchandise  for  sale  on  com- 
mission, that  until  about  September,  1004, 
defendant  was  engaged  himself  in  the  mill- 
ing business  at  Minto,  and  that  after  such 
date  and  up  to  January  6th  thereafter  he 
continued  to  supply  Rolcyzinskl  with  mill 
products  for  sale  on  commission,  purchasing 
the  same  from  plaintiff.  It  is  plaintiff's  con- 
tention, and  such  contention  finds  support  in 
his  testimony,  that  he  continued  to  sell  such 
mill  stuffs  to  defendant  under  the  Identical 
arrangement  and  understanding  theretofore 
existing,  except  that  at  defendant's  request, 
and  for  certain  reasons  stated  by  defendant, 
such  merchandise  was  charged  on  plaintiff's 
books  to  Rolcyzinskl.  Plaintiff  is  corroborat- 
ed by  the  witnesses  Dunn,  who  was  formerly 


manager  of  plalntitTs  mill,  and  Rolcyzinskl. 
Among  other  things,  plaintiff  testified :  "Mi. 
Zuelsdorf  said,  *I  will  buy  the  flour  and  pay 
you  for  it,  and  let  Mr.  Rolcyzinskl  handle  It' 
He  wanted  him  to  continue  in  the  flour  busi- 
ness. *  *  *  We  delivered  no  flour  to  Rol- 
cyzlnskL  We  had  nothing  to  do  with  blm. 
*  •  *  Zuelsdorf  bought  car  load  after  car 
load  that  fall,  and  sent  up  payments  until 
some  time  in  January.  He  called  me  up  by 
phone  one  evening,  and  he  said  Rolcyzinskl 
would  rather  know  what  the  flour  cost,  and 
on  account  of  him  having  the  handling  he 
would  like  to  have  me  send  the  bills  direct 
to  Rolcyzinskl,  and  open  up  an  account  with 
him,  but  be  said,  'I  will  keep  ordering  the 
flour  and  I  will  pay  for  it,'  and  it  was  so 
done  from  that  time  on.  I  delivered  no  flour 
to  Rolcyzinskl  until  this  arrangement  was 
off.  About  the  1st  of  May  Zuelsdorf  called 
me  up  one  evening  by  phone,  and  said  that 
he  had  trouble  with  Rolcyzinskl,  and  be 
says,  'I  will  buy  no  more  flour  for  him, 
and  whatever  I  have  got  for  him  now,  that 
setUes  it  I  wUl  settle  for  that'  •  •  • 
He  came  up  some  little  time  after  that  He 
came  to  the  mill,  and  we  figured  up,  and  be 
says,  'Now,  you  can  charge  that  to  my  ac- 
count and  I  will  pay  It'  •  ♦  ♦  Zuels- 
dorf requested  us  to  charge  bis  personal  ac- 
coimt  with  it  and  credit  Rolcyzinskl.  We 
did  so  at  his  request  •  •  •  Zuelsdorf 
subsequently  paid  something  on  this  ac- 
count" 

The  witness  Dunn,  among  other  things, 
testified  that  he  was  present,  and  overheard 
the  conversation  between  plaintiff  and  de- 
fendant referred  to  by  the  plaintiff  in  his 
testimony,  and  fully  corroborates  plaintiff's 
testimony.  Among  other  things  he  testified : 
"It  is  pretty  hard  to  remember  the  exact 
day  back  at  that  time.  The  only  way  1 
have  of  fixing  It  is  the  fact  of  the  charge  to 
the  other  man  at  ZuelsdorT s  request  There 
Is  no  question  about  that,  and  Mr.  Zuelsdorf 
was  to  pay  the  account  That  fact  is  more 
especially  in  my  mind  than  dates.  •  •  » 
I  didn't  understand  Zuelsdorf  to  say  that 
he  wasn't  going  to  handle  any  fiour  himself. 
He  had  been  buying  from  Leistlkow  for 
some  time,  and  there  was  to  be  some  change. 
My  understanding  was  that  he  wanted  Lels- 
tikow  to  ship  Rolcyzinskl  the  flour  instead 
of  to  him,  BO  that  he  could  keep  a  check  of 
what  this  other  man  got  in  that  way.  We 
hadn't  any  dealings  with  Rolcyzinskl  at  all. 
I  didn't  know  him  personally.  I  was  not 
aware  that  he  had  been  having  business 
dealings  with  Zuelsdorf.  It  was  no  surprise 
to  me  when  Zuelsdorf  made  this  request  It 
Was  only  a  proper  request  to  charge  the 
flour  to  the  other  man,  and  Zuelsdorf  would 
pay  for  It.  There  was  nothing  that  I  know 
of  disclosed  In  that  conversation  giving  any 
reason  for  this  peculiar  way  of  charging  this 
flour  to  the  stranger.  As  I  understood  It, 
Mr.   Leistikow   wouldn't  charge  this  other 


Digitized  by  LjOOQ  l€ 


342 


122  NORTHWESTERN  RBPORTKR. 


(N.D. 


man  with  flonr.  I  didn't  tinderatand  tbat. 
ZnelBdorTs  first  proposition  was  that  he 
wouldn't  boy  any  more  flonr  himself,  but 
that  Lelstikow  might  charge  flour  to  Rolcy- 
ElnskL  It  was  something  like  this:  Lelsti- 
kow said  he  wouldn't  charge  flour  to  Rol- 
cyzlnskl  because  be  didn't  know  him." 

Rolcyzinskl  testified,  In  effect,  that  from 
1900  until  March,  1005,  he  was  engaged  In 
handling  flour  and  feed  for  the  defendant 
upon  an  agreed  commission  per  sack,  and 
that  during  this  time  there  never  was  but 
the  one  arrangement  between  them.  Under 
such  arrangement  he  would  turn  over  any 
money  he  collected  on  sales  to  Zuelsdorf. 
He  never  made  any  arrangement  with  Lelsti- 
kow to  handle  his  flour  until  some  time  in 
March,  1906.  It  Is  nowhere  contended  that 
Rolcyzinskl,  prior  to  March,  1905,  ever  had 
any  direct  dealings  with  the  plaintiff,  and 
he  testified  that  Znelsdorf  never  at  any 
time  was  authorized  to  make  any  arrange- 
ment with  Lelstikow  by  which  flonr  was 
to  be  charged  to  him.  This  testimony,  If 
true,  completely  refutes  defendant's  version 
of  the  transaction,  and  overcomes  the  some- 
what strong  presumption  In  defendant's  fa- 
vor arising  from  the  fact  that  plaintiff  charg- 
ed such  merchandise  to  Rolcyzlnskl's  ac- 
count. There  is  other  evidence,  both  direct 
and  drchmstantlal,  tending  to  corroborate 
plaintiff's  testimony,  but  the  foregoing  suf- 
flces  to  demonstrate  that  the  court  did  not 
err  In  refusing  to  hold,  as  a  matter  of  law, 
that  no  recovery  could  be  had. 

This  brings  us  to  a  consideration  of  the 
appellant's  assignments  based  upon  alleged 
erroneous  rulings  in  the  admission  and  re- 
jection of  testimony.  As  a  part  of  the  cross- 
examination  of  plaintiff  appellant's  coun- 
sel offered  In  evidence  the  original  com- 
plaint, the  allegations  of  which  are  Incon- 
sistent with  plaintiff's  testimony;  the  same 
having  evidently  been  drawn  on  the  theory 
that  the  facts  were  as  contended  for  by  de- 
fendant. The  same  was  objected  to,  and 
the  objection  sustained,  upon  the  ground, 
among  others,  that  It  was  not  proper  cross- 
examination.  In  tbls  we  think  there  was  no 
error.  The  same  was  not,  strictly  speaking, 
proper  cross-examination.  It  should  have 
been  offered  as  a  part  of  defendant's  case. 
Its  Introduction  at  that  time  was  within  the 
discretion  of  the  trial  court  Romertze  v. 
Bank,  49  N.  T.  577;  Gemmlll  v.  State,  16 
Ind.  App.  154,  43  N.  B.  909;  2  Wlgmore  on 
Ev.  {  1261,  and  cases  cited;  Peyton  v.  Mor- 
gan Park,  172  111.  102,  49  N.  E.  1003;  Hen- 
nessy  v.  Insurance  Co.,  74  Conn.  699,  52  Atl. 
490;  Haines  v.  Fire  Insur.  Co.,  52  N.  H.  467. 
The  original  complaint  ceased  to  be  a  plead- 
ing in  the  cause  when  the  amended  complaint 
was  interposed.  Hence  any  admissions  con- 
tained therein  are  not  conclusive  against  the 
plaintiff,  and  the  allegations  In  such  original 
complaint  can  be  treated  as  admissions  only 
by  the  introduction  of  such  pleading  in  evi- 


dence. 1  Enc.  of  Ev.  437,  and  cases  dted.  It 
seems  to  be  the  prevailing  rule  that  such 
former  pleading  Is  competent  evidence  by  way 
of  admission  when  properly  Introduced  in  evi- 
dence, but  it  is  competent,  not  as  a  pleading, 
but  as  any  other  written  Instrument  contain- 
ing an  admission  against  interest.  If  the  same 
is  signed  or  acquiesced  in  by  the  party,  or 
signed  and  filed  by  an  attorney  having  au- 
thority to  bind  him  by  statements  so  made. 
Some  courts  have  held  such  pleading  not  com- 
petent evidence  as  an  admission,  but  the 
great  weight  of  authority  is  to  the  contrary. 
See  1  Ency.  of  Evidence,  437-440,  Inclusive, 
and  cases  cited.  For  a  valuable  discussion  of 
the  question  as  to  the  admissibility  of  such 
original  complaint,  see  the  able  opinion  of 
Mitchell,  J.,  in  Vogel  v.  Osborne  t»  Ck>.,  32 
Minn.  167,  20  N.  W.  129,  wherein  the  Min- 
nesota court  reached  the  conclusion  that, 
where  there  is  nothing  to  show  that  the  ad- 
mission In  the  original  pleading  was  made 
with  the  knowledge  or  by  the  direction  of  the 
party,  such  original  pleading  was  Inadmis- 
sible in  evidence.  We  shall  assume,  with- 
out deciding,  that  the  original  complaint  was 
admissible,  but  we  hold  It  not  an  abuse  of 
discretion  to  refuse  to  receive  the  same  as  a 
part  of  the  cross-examination  of  the  plain- 
tiff. Defendant  did  not  offer  the  same  as  a 
part  of  his  case.  This  he  should  have  done. 
The  order  of  proof  is  always  largely  within 
the  discretion  of  the  trial  court 

Errors  are  assigned  upon  the  rulings  sus- 
taining plaintiff's  objections  to  certain  ques- 
tions put  to  plaintiff  on  cross-examination 
as  to  whether  he  Informed  his  counsel,  at  the 
time  he  employed  them,  of  certain  facts 
theretofore  testified  to  by  him.  We  think 
snch  rulings  were  correct  as  the  questions 
called  for  the  disclosure  of  confidential  and 
privileged  communications  between  attorney 
and  client  and  bis  privilege  was  properly 
claimed  by  the  objections.  See  10  Enc.  of 
Ev.  205,  212,  328. 

The  next  assignment  challenges  the  ruling 
of  the  court  below  in  sustaining  plalntUTs 
objection  to  the  following  question,  asked 
the  witness  Dunn  on  cross-examination: 
"Now  did  Mr.  Lelstikow  pay  Zuelsdorf  any- 
thing for  assiunlng  the  $1,143.16  on  the  Rol- 
cyzinskl account?"  The  ground  of  the  ob- 
jection was  that  the  question  called  for  a 
conclusion  of  the  witness,  and  also  assumed 
facts  not  in  evidence.  We  fall  to  discover 
any  prejudicial  error  in  such  ruling.  There 
was  nothing  in  the  prior  testimony  to  justify 
the  assumption  that  Zuelsdorf,  at  the  time 
the  account  was  transferred  from  Rolcyzinskl 
to  his  account,  assumed  any  new  liability. 
Plaintiff  introduced  the  testimony  of  such 
transfer  of  the  account  merely  as  evidence 
tending  to  corroborate  bis  version  of  the 
transaction,  to  the  effect  that  Zuelsdorf  itur- 
chased  such  merchandise  on  his  own  account, 
and  was  primarily  liable  for  its  payment  at 
all  times.  Neither  in  the  complaint  nor  in 
plalntltTs  proof,  was  any  contrition  made 


Digitized  by 


Google 


8.D.) 


OHICAGO  &  N.  W.  BY.  CO.  t.  ROLP80N. 


843 


that  defendant  assumed  any  new  liability 
by  the  transfer  of  such  account. 

Immediately  after  the  last-mentioned  rul- 
ing defendant's  counsel  moved  to  strike  par- 
agraph 4  from  the  amended  complaint  as  be- 
ing redundant  and  Irrelevant  matter  and  a 
pleading  of  evidentiary  facts.  This  motion 
was  denied,  but  we  fall  to  perceive  how  such 
ruling  could  have  been  prejudicial  to  defend- 
ant. If  such  motion  had  been  made  In  time, 
It  occurs  to  ns  that  it  should  have  been  grant- 
ed, as  the  facts  pleaded  were  merely  eviden- 
tiary In  character.  A  complete  answer,  how- 
ever, to  such  assignment  is  the  fact  that 
defendant  preserved  no  exception  to  the  rul- 
ing, and  hence  the  same  Is  not  before  us  foi 
review. 

We  deem  it  unnecessary  to  notice  tn  detail 
the  few  remaining  assignments,  all  of  which 
relate  to  rulings  as  to  the  admissions  and 
exdnslon  of  testimony.  We  have  carefully 
examined  the  same,  and  find  no  prejudicial 
error  in  the  rulings  complained  of. 

The  Judgment  appealed  from  Is  accordingly 
affirmed. 

MORGAN,  0.  J.,  not  participating. 


CHICAGO  &  N.  W.  BT.  CO.  T.  BOLFSON, 

Treasurer,  et  al. 

(Supreme  Court  of  South  Dakota.     June  26, 
1909.) 

1.  TAZAnoN  (f  642*)— Becovebt  of  Taxxs 
Paid. 

Ad  illegal  personal  property  tax,  paid  un- 
der protest,  may  be  recovered  back. 

[Ed.  Note. — For  other  cases,  see  Taxation, 
Cent  Dig.  {  1003 ;    Dec.  Dig.  §  642.*] 

2.  Taxation  (|  608*>— Remedies  fob  Weonq- 
rtn:.    Bnfobcement — Injunction. 

Injunction  does  not  lie  to  restrain  the  col- 
lection of  an  illegal  personal  property  tax,  in 
the  absence  of  a  sbiowing  that  the  taxpayer 
cannot  pay  the  tax  under  protest,  and  recover 
it  back,  or  that  be  cannot  recover  at  law  the 
damages  resulting  from  the  seizure  of  bis  prop- 
erty for  the  tax,  the  remedy  at  law  not  being 
shown  to  be  inadequate. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  {  1231;    Dec.  Dig.  i  608.*] 

Appeal  from  Circuit  Court,  Kingsbury 
County. 

Action  by  the  Chicago  &  Northwestern 
Railway  Company  against  J.  H.  Rolfson,  as 
Treasurer,  and  others.  From  a  Judgment 
for  defendants,  plaintiff  appeals.    Affirmed. 

R.  W.  Stewart  and  A.  W.  Burtt,  for  appel- 
lant.   C.  P.  Warren,  for  respondents. 

McCOT,  J.  The  plaintiff  claims  that  In 
October,  1905,  two  written  notices  and  de- 
mands for  payment  of  personal  property  tax- 
es were  caused  to  be  issued  by  defendant 
Peterman,  as  sheriff  of  Kingsbury  county, 
one  of  which  notices  and  demands  required 
that  plaintiff  pay  the  sum  of  $469.45,  tax, 


14.89,  penalty  and  Interest,  $19.96,  expenses, 
total  $494.10,  for  personal  property  taxes 
charged  against  plaintiff  in  De  Smet  town- 
ship, for  the  year  1904,  and  which  other  no- 
tice and  demand  required  plaintiff  to  pay 
$95.44,  tax,  $7.64,  penalty  and  Interest,  $5.12, 
expenses,  total,  $108.20,  charged  against 
plaintiff  In  De  Smet  township,  for  road  tax- 
es for  the  year  1904,  and  both  which  no- 
tices and  demands  recited:  'This  sum  I 
will  collect  forthwith  as  provided  by  chapter 
48,  Laws  of  1901,  and  unless  you  pay  said 
taxes  before  I  call  It  will  be  necessary  for 
me  to  charge  you  mileage,  expense  of  levy 
and  keeping  and  other  expenses,  which  fees 
must  be  turned  Into  the  county  treasury. 
You  will  save  trouble  and  expense  by  paying 
at  once.  This  notice  is  sbnt  to  give  you  an 
opportunity  to  avoid  costs,  as  the  law  directs 
me  to  levy  on  your  property" — ^and  both  of 
which  notices  were  signed  by  W.  E.  Peter- 
man,  sheriff  of  Kingsbury  county.  The 
plaintiff  further  claims  that  the  said  tax  of 
$469.45  was  the  second  Installment  of  a  per- 
sonal property  tax  of  $938.91,  charged  against 
plaintiff  in  said  De  Smet  township,  and  that 
plaintiff  duly  paid  the  first  installment  there- 
of, and  that  in  September,  1905,  plaintiff  of- 
fered and  tendered  to  defendant  Rolfson  as 
treasurer,  the  second  Installment  of  $469.46, 
but  that  said  Rolfson  refused  to  receive  and 
accept  the  same,  for  the  alleged  reason  that 
there  was  a  further  tax  of  $05.44,  charged 
against  plaintiff  for  a  road  tax  in  said  town- 
ship, but  which  road  tax  plaintiff  claims  is 
illegal  and  void  in  not  having  been  author- 
ized by  the  township  electors,  as  provided  by 
law,  and  that  said  road  tax  was  never  legal- 
ly levied  or  assessed  by  the  board  of  super- 
visors of  said  township.  The  plaintiff  com- 
menced this  action  in  circuit  court  to  re- 
strain the  collection  of  the  said  taxes  men- 
tioned and  referred  to  In  the  said  notices 
and  demands,  and  In  Its  complaint.  In  su]> 
stance,  alleged  the  foregoing  statement  of 
facts.  Defendants  answered,  admitting  the 
service  of  said  notices  and  demands  for  pay- 
ment, and  admitted  that  plaintiff  htid  offered 
and  tendered  said  $469.45,  and  that  defend- 
ant Rolfson  refused  to  receive  and  accept  the 
same,  for  the  alleged  reason  that  there  was 
charged  against  plaintiff  the  further  sum  of 
$95.44,  road  tax.  Defendants  denied  the  Il- 
legality of  said  road  tax,  and  alleged  that  the 
same  had  been  duly  authorized  by  the  town- 
ship electors,  and  that  said  road  tax  had 
been  duly  and  legally  levied  and  assessed. 
There  was  trial  by  the  court,  without  Jury, 
on  the  Issues  thus  presented,  and  findings 
and  Judgment  in  favor  of  defendants. 

At  the  outset  we  are  met  with  the  proposi- 
tion that  the  remedy  of  injunction  will  not 
lie  to  restrain  the  collection  of  a  personal 
property  tax  under  the  circumstances  of 
this  case.  The  respondents  contend  that  in- 
junction should  not  lie,  because  plaintiff  had 


•Tot  oOtet  cases  sea  same  topic  and  lectlon  NUMBER  In  D«c.  A  Mm.  Digs.  1997  to  date,  &  Reporter  Indexea 


Digitized  by  VjOOQ  l€ 


344 


122  NOUTHWESTEBN  RBPORTEB. 


(&D. 


adequate  remedy  at  law,  and  should  not  be 
permitted  to  resort  to  the  equity  aide  of  the 
court  It  Is  the  contention  that  plaintiff 
should  have  first  paid  said  tax  under  protest, 
and  then  brought  action  to  recover  back  the 
portion  alleged  to  have  been  Illegal  or  irreg- 
ularly charged  against  plaintiff;  that  plain- 
tiff might  have  waited  until  Its  property  had 
been  seized  for  such  tax,  and  then  maintain- 
ed an  action  for  damages  in  the  nature  of 
trespass.  In  this  contention  we  believe  re- 
spondents are  in  the  right  The  general  rule 
seems  to  be  thus  stated  in  Cooley  on  Taxa- 
tion (page  772):  "When  a  tax  as  assessed  is 
only  a  -personal  charge  against  the  party  tax- 
ed, or  against  his  personal  property,  it  is  dif- 
ficult in  most  cases,  to  suggest  any  ground 
of  equitable  Jurisdiction.  Presumptively  the 
remedy  at  law  is  adequate.  If  the  tax  Is 
illegal,  and  the  party  makes  payment  he  Is 
entitled  to  recover  back  the  amount.  The 
case  does  not  differ  in  this  regard  from  any 
other  case  in  which  a  party  is  compelled  to 
pay  an  Illegal  demand.  The  illegality  alone 
affords  no  ground  for  equitable  interference, 
and  the  proceedings  to  enforce  the  tax  by 
distress  and  sale  can  give  none,  as  these 
only  constitute  an  ordinary  trespass.  To  this 
point  the  decisions  are  numerous.  The  ex- 
ceptions to  this  rule,  if  any,  must  be  of  cases 
which  are  to  be  classed  under  the  bead  of  ir- 
reparable Injury ;  as,  when  the  enforcement 
of  a  tax  might  destroy  a  valuable  franchise, 
or  when  property  is  levied  upon  which  pos- 
sesses a  peculiar  value  to  the  owner  beyond 
any  possible  market  value  it  can  have,  and 
other  like  cases  where  the  recovery  of  dam- 
ages would  be  Inadequate  redress.  A  case 
would  be  exceptional,  also,  if  under  the  law 
no  remedy  could  be  had  to  recover  back  the 
moneys  paid."  This  appeals  to  us  as  being 
the  true  rule,  although  we  are  aware  that  in 
some  Jurisdictions  the  remedy  by  injunction 
is  sustained  in  all  cases  of  illegal  taxation. 
Under  the  complaint  and  under  the  evidence 
there  is  nothing  to  bring  the  case  within  any 
of  the  exceptions  to  the  general  rule.  There 
is  no  reason  why  plaintiff  could  not  have 
been  paid  these  taxes,  under  protest,  and 
then  recovered  back,  if  they  were  illegal. 
Under  the  circumstances  of  this  case  taxes 
paid  under  protest  could  have  been  recover- 
ed back.  St  Anthony  &  Dak.  El.  Co.  v.  Bot- 
tineau Co.,  0  N.  D.  346,  83  N.  W.  212,  CO  L. 
R.  A.  202;  Baltimore  v.  Lefferman,  4  6111 
(Md.)  425,  45  Am.  Due.  145,  and  cases  cited  in 
note.  There  is  no  reason  shown  why  plain- 
tiff could  not  have  maintained  an  action  for 
damages  In  case  of  seizure  of  any  of  its  prop- 
erty, in  case  the  said  tax  was  illegal.  There 
is  nothing  to  show  that  any  possible  irrepa- 
rable Injury  might  have  occurred  by  reason 
of  a  seizure,  or  that  any  property  was  threat- 
ened with  seizure  that  possessed  any  pecu- 
liar value  to  plaintiff  that  damages  would 


not  redress.  The  rule  laid  down  In  Frost  t. 
Flick,  1  Dak.  126,  46  N.  W.  508,  is  applicable 
to  the  circumstances  of  this  case.  In  that 
case  it  is  held  that  the  courts  of  equity  will 
not  interfere  by  injunction  to  restrain  the 
enforcement  of  tax  proceedings  on  the  ground 
of  irregularities  in  the  assessment  of  the 
tax,  or  In  executing  the  power  conferred  on 
taxing  officers,  unless  it  Is  shown  that  fraud 
has  been  practiced  by  the  taxing  officers,,  or 
unless  there  Is  something  to  show  that  the 
injury  resulting  from  such  enforcement 
would  be  irreparable.  Numerous  cases  hold 
to  the  same  view.  M.,  St  P.  &  S.  S.  M.  By.  v. 
Dickey  County,  11  N.  D.  107,  00  N.  W.  260; 
Schaffner  v.  Toung,  10  N.  D.  245,  88  N.  W. 
733;  Chicago  ft  N.  W.  Ry.  v.  Ft  Howard,  21 
Wis.  44,  01  Am.  Dec.  458;  Schurmeier  v.  St 
Paul  Ry.,  8  Minn.  113  (Gil.  88),  83  Am.  Dec 
770;  Odlln  v.  Woodruff,  31  Fla.  160,  12 
South.  227,  22  L.  R.  A.  609,  note;  Whiting  v. 
Boston,  106  Mass.  88;  Milwaukee  v.  Eoeffler, 
116  U.  S.  219,  6  Sup.  Ct  372,  29  I*  Ed.  612; 
Greene  v.  Mumford,  6  B.  I.  472,  73  Am.  Dec. 
79.  It  Is  not  necessary  to  pass  upon  other 
questions  presented  by  the  briefs,  as  we  are 
of  the  opinion  plaintiff  cannot  maintain  the 
remedy  by  Injunction  to  test  the  legality  of 
the  said  road  tax. 

The  Judgment  of  the  circuit  court  is  af- 
firmed. 

WHITING,  J.,  took  no  part  In  this  deci- 
sion. 


JEROME  et  al.  t.  RUST  «t  •!. 

(Supreme  Court  of  South   Dakota.     June  26, 
1009.) 

1.  Action  (J  1*)— "Cause  of  Actior." 

A  "cause  of  action"  is  a  wrong.  It  may 
arise  from  the  refusal  to  respond  to  an  obliga- 
tion. It  is  also  defined  as  a  matter  for  which 
an  action  may  be  brought ;  -the  ground  on  which 
an  action  may  be  sustained,  and  the  fact,  or 
combination  of  facts,  which  give  rise  to  a  right 
of  action. 

[Ed.  Note.— For  other  cases,  see  Action,  Cent 
Dit.  i  1  :  Dec.  Uig.  i  l.» 

For  other  definitions,  see  Words  and  Phrases, 
vol.  2,  pp.  1015-1019;    vol.  8,  p.  7588.] 

2.  Acnow  ({  38*)— Causes  of  AcrrioN-Jom- 

DEB. 

J.  recovered  a  Judgment  which  he  assigned 
pending  appeal;  the  judgment  defendant  giving 
a  single  bond  on  the  appeal  for  costs  and  to  pay 
the  judgment  if  affirmed.  After  affirmance,  J. 
recovered  a  judgment  for  costs  on  the  appeal. 
Held,  a  complaint  on  the  bond  by  J.  and  the 
assignees  to  recover  the  amount  of  both  Judg- 
ments stated  a  single  canse  of  action  only,  and 
was  therefore  not  demurrable  for  misjoinder  of 
causes  of  action. 

rE!d.  Note.— For  other  cases,  see  Action, 
Dec.  Dig.  {  38.»] 

3.  Parties  (t  35*)^JoiwnEB. 

Where  pending  appeal  a  judgment  creditor 
assigned  his  judgment,  and  later,  on  affirmance, 
recovered  a  judgment  for  costs,  if  he  was  un- 
willing to  join  as  a  plaintiff  in  an  action  by  the 
assignees   on    the   supersedeas   and   cost   bond. 


•For  otber  ease*  sm  asm*  topic  and  sectKh  MUUBBR  In  Dae.  *  Am.  Digs.  1907  to  data,  *  Reportar  ladazaa 


Digitized  by 


Google 


S.D.) 


JEROME  V.  RUST, 


345 


which  was  in  one  instrnment,  he  could  be  made 
a  defendant  in  the  action  by  the  assignees  as 
authorized   by  Code  Civ.  Proc.  {  90. 

lEd.  Note.— For  other  cases,  see  Parties,  Cent. 
Dig.  {{  54,  5o ;   Dec.  Dig.  {  35.*] 

4.  Appeal  and  Krror  (}  1244*)— Bonds— Ac- 
tion—Intervention. 

Where  a  coat  snd  supersedeas  bond  were 
in  one  instrument,  and  the  judgment  was  aa- 
sitmed  l>efore  affirmance,  the  assignees  conld 
intervene  to  enforce  their  assigned  judgment, 
in  an  action  by  the  judgment  creditor  on  the 
bond  to  enforce  his  judgment  (or  costs  on  the 
appeal. 

lEd.  Note.— For  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  {  1244.*] 

Corson,  J.,  dissenting. 

On  rehearing.    Rehearing  granted.    Form- 
er oniiilon  overruled,  and  Judgment  afflnned. 
»   For  former  opinion,  see  21  8.  D.  191,  110 
N.  W.  780. 

'WHITING,  X  This  cause  la  one  before 
tbe  court  upon  «  rehearing ;  the  former  opin- 
ion of  this  court  being  found  in  21  S.  D.  191, 
110  N.  W.  780.  The  complaint  herein  alleges 
tbe  following  (acts:  Tbe  plaintiff  Jerome 
obtained  a  Judgment  against  one  H.  W.  Rust 
In  tbe  county  court  of  Minnehaha  county. 
After  such  judgment  was  obtained,  Jerome 
assigned  the  same  to  the  plaintiffs  MuUer 
and  Conway  as  security  (or  an  indebtedness. 
After  such  assignment  the  said  defendant 
Rust  appealed  said  cause  to  this  court,  and 
niton  such  appeal  gave  tbe  usual  b(md  upon 
appeal,  conditioned  both  (or  the  payment 
o(  the  Judgment,  and  also  (or  the  payment 
o(  the  costs  on  the  appeal,  limiting  the  last 
nndertaklng  to  the  sum  o(  $250.  This  un- 
dertaking on  appeal  was  glren  by  said  Rust 
as  principal,  with  the  defendant  Western 
Surety  Company  as  surety. '  Thereafter  this 
court  affirmed  the  appeal  (rom  said  county 
court,  and  Judgment  (or  costs  was  entered 
in  such  county  court  Execution  was  issued 
upon  the  original  county  court  judgment, 
and  also  (or  the  cost  Judgment,  and  return- 
ed unsatisfied.  Then  the  plaintiffs,  Jerome, 
Muller,  and  Conway,  bring  this  action  upon 
such  nndertaklng  on  appeal,  and  In  their 
prayer  (or  relief  they  ask  Judgment  (or  (ull 
amount  of  the  two  Judgments  above  men- 
tioned. The  appellant  Western  Surety  Com- 
pany demurred  to  said  complaint,  which  de- 
murrer was  overruled,  and  it  Is  from  such 
order  overruling  demurrer  that  appellant 
appeals.  In  the  former  opinion  of  this  court 
Justice  Corson  reversed  the  order  overruling 
such  demurrer. 

The  demurrer  stated  three  grounds,  but 
appellant  is  relying,  upon  this  appeal,  upon 
one  of  these  grounds  only,  to  wit,  that  sever- 
al causes  of  action  have  been  Improperly 
united.  We  are  inclined  to  the  view  t^at  the 
trial  court  was  correct  In  overruling  such 
demurrer,  and  that  the  former  judgment  of 
this  court  cannot  be  sustained.     It  is  the 


theory  of  the  respondents  that  there  !a  only 
one  cause  of  action  alleged,  and  furthermore 
that,  even  if  It  could  be  held  that,  owing  to 
tbe  fact  that  the  undertaking  is  security  for 
both  judgments,  there  are  two  causes  of  ac- 
tion alleged,  one  upon  each  judgment,  yet 
under  the  assignment  to  Muller  and  Con- 
way tliey  take  the  same  interest  in  the  cost 
judgment  that  they  do  In  the  original  county 
court  Judgment,  and  that  therefore  the  two 
causes  o(  action  would  be  properly  united. 
This  not  being  a  demurrer  on  ground  o( 
misjoinder  of  parties,  we  do  not  find  it  nec- 
essary to  pass  on  this  last  contention,  and 
do  not  wish  to  Intimate  any  view  thereon, 
but  we  are  of  tbe  opinion  that  the  respond- 
ent is  right  in  the  first  contention,  namely, 
that  but  one  cause  of  action  is  set  forth  in  tbe 
complaint. 

Justice  Corson  in  the  former  opinion  of 
this  court  takes  the  view  that  the  respond- 
ents Muller  and  Conway  have  no  interest 
in  the  cost  Judgment,  and,  further,  as  we  un- 
derstand bis  views,  that  there  are  two  sepa- 
rate causes  of  action.  He  cites,  as  sustain- 
ing his  view,  Nagel  et  ai.  t.  Lutz  et  al.,  41 
App.  DiT.  193,  58  N.  Y.  Supp.  816.  By  refer- 
ring to  bis  opinion,  or  to  such  case  Itself,  as 
reported,  It  will  be  found  that  this  was  an 
action  brought  by  Nagel  and  one  Callahan 
against  Lutz  and  others  upon  an  instrument 
in  words  and  figures  as  follows:  "Buffalo, 
N.  Y.  May  19,  1898.  On  demand,  after  30 
days,  we  promise  to  pay  to  tbe  order  of  John 
F.  Nagel  seven  hundred  fifty  ($750)  dollars, 
also  to  Charles  H.  Callahan  the  sum  of  seven 
hundred  fifty  ($750)  dollars,  with  use."  The 
above  Instrument  was  signed  by  Lutz  and 
others.  It  will  readily  be  seen  that  this  in- 
strnment contained  in  Itself  two  entirely  sep- 
arate and  distinct  contracts,  either  one  of 
which  could  be  broken  without  In  any  man- 
ner, affecting  the  other.  It  will  also  be  seen 
that  these  contracts  were  agreements  to 
make  payments  not  to  one  person,  but  to  two 
different  parties.  If  In  the  case  at  bar  the 
plaintiffs  and  respondents  were  suing  the  de- 
fendant Rust  upon  the  two  judgments,  there 
would  be  some  analogy  between  such  action 
and  the  New  York  case,  because  In  such  case 
there  would  be  two  separate  causes  of  action. 
Judge  Oorson  cites  several  authorities,  which 
were  cited  In  the  above  New  York  ease.  We 
have  examined  all  of  these,  and  found  none 
In  any  wise  analogous  to  the  case  at  bar. 

Bliss,  In  his  work  on  Code  Pleading  (2d  Ed.) 
I  113,  says:  "We  have  defined  an  action  to 
be  a  judicial  proceeding  for  the  prevention  or 
redress  of  a  wrong.  The  cause  of  action, 
then,  la  the  wrong."  In  tbe  same  section, 
in  speaking  of  what  may  be  considered  a 
wrong,  be  states  that  "tbe  wrong  jnay  be 
done  by  the  refusal  to  respond  to  an  obliga- 
tion." Among  the  definitions  o(  a  cause  of 
action  in  6  Cyc.  705,  are  the  following:    "Mat- 


•For  other  caiet  se*  same  topio  and  aectlon  NUMBER  In  Dec.  A  Am.  Digs.  1907  to  date.  A  Reporter  Indexes 


Digitized  by  LjOOQIC 


346 


122  NORTHWESTBKN  REPORTER. 


<8D. 


ter  for  which  an  action  may  be  brought ;" 
'"the  ground  on  which  an  action  may  be  sus- 
tained;" "the  fact  or  combination  of  facts 
which  give  rise  to  a  right  of'action."  Bliss, 
In  8e<;tlon  118,  says:  "It  is  a  mie  that  the 
cause  of  action — as  one  springing  from  a 
single  contract— cannot  be  so  split  as  to  au- 
thorize more  than  one  action."  Further  Bliss 
cites  the  words  of  Jndge  Cowen,  in  the  case 
of  Bendemagle  v.  Cocks;  19  Wend.  (N.  T.) 
207,  wherein  he  says:  "All  damages  arising 
from  a  single  wrong,  though  at  dlfTerent 
times,  make  but  one  cause  of  action ;  and  all 
debts  and  demands  already  dne  by  the  same 
contract  make  one  entire  cause  of  action." 
Bliss  also  refers  to  the  test  stated  by  Judge 
Strong  of  the  New  York  Court  of  Appeals, 
in  the  case  of  Secor  t.  Sturgis,  16  N.  Y.  648: 
"The  case  of  a  contract  containing  several 
stipulations,  to  be  performed  at  different 
times,  is  no  exception." 

If  the  respondent  Jerome  alone  were  suing, 
we  would  apprehend  that  there  would  have 
been  no  claim  by  any  one  that  two  causes  of 
action  were  united  in  the  complaint  It  is 
true  that  two  difTerent  matters  were  secured 
by  this  one  undertaking,  but  this  undertaking 
runs  to  one  person,  and  a  breach  thereof 
gives  but  one  cause  of  action.  The  amount  of 
relief  which  may  be  recovered  depends  upon 
the  extent  of  the  breach,  to  wit,  as  to  wheth- 
er the  matters  secured  by  such  undertaking 
had  been  in  part  paid  or  not  Undoubtedly, 
under  section  90  of  the  Code  of  Civil  Proce- 
dure, if  the  plaintiff  Jerome  had  been  un- 
willing to  Join  as  plaintiff,  be  could  have 
been  made  a  defendant;  and,  furthermore, 
If  Jerome  bad  brought  this  action  alone  as 
plaintiff,  under  section  96  of  the  Code  of 
Civil  Procedure,  Mnller  and  Conway  would 
have  had  a  right  to  Intervene  to  protect  their 
rights. 

It  being  therefore  clear  that  but  one  cause 
of  action  is  set  forth  in  the  complaint  here- 
in, and  the  only  groupd  of  demurrer  before 
us  being  that  claiming  misjoinder  of  causes 
of  action,  the  order  of  the  trial  court  over^ 
ruling  the  demurrer  should  be,  and  the  same 
Is,  affirmed,  and  the  former  opinion  of  tills 
court  is  overruled. 

CORSON,  J.,  dissents. 


EMPSON   T.   RELIANCE   GOLD    MINING 
CO. 

<Snpreme  Conrt  of  South  Dakota.     June  26, 
1809.) 

1.  Appeal  and  Bbbob  ({  1008*)— Firdinob— 
cokclusivenbss. 

The  findings  of  the  trial  court  will  not  be 
disturbed  on  appeal,  unless  the  evidence  dearljr 
preponderates  against  them. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  S  3955;   Dec.  Dig.  {  1008.*] 


2.  Master  and   Sebvart  (|  80*)— SravicnEB 

AND    COliPENSAHOH— 8 UFFIUIENOT   OV   BVI- 
DKIfCE. 

In  an  action  for  service!  rendered  as  min- 
ing encrineer  and  assayer  under  a  contract  evi- 
dence held  to  support  findings  in  favor  of  plain- 
tiff. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  i  118;   Dec.  Dig.  S  80.*] 

Appeal  from  Circuit  Court,  Lawrence 
County. 

Action  by  John  B.  Empson  against  the 
Reliance  Gold  Mining  Company.  From  a 
Judgment  for  plaintiff,  and  from  an  ordef 
denying  a  new  trial,  defendant  appeals.  Af- 
firmed. 

R.  P.  Stewart,  for  appellant  Granville  G. 
Bennett  for  respondent 

4 

CORSON,  J.  This  case  is  before  vm  on 
appeal  by  the  defendant  from  a  Judgment  in 
favor  of  the  plaintiff,  and  order  denying  a 
new  trial.  The  action  was  Instituted  by  the 
plaintiff  to  recover  of  the  defendant  the  sum 
of  $2,398  claimed  to  he  due  him  for  services 
under  a  contract  entered  into  by  the  de- 
fendant with  the  plaintiff,  which  is  stated 
in  the  complaint  substantially  as  follows; 
That  on  or  about  the  2d  day  of  October,  1903, 
plaintiff  entered  into  a  contract  and  agree- 
ment with  the  defendant,  whereby  he  under- 
took and  agreed  to  render  certain  services, 
and  perform  work  and  labor  for  the  defend- 
ant In  taking  charge  of  defendant's  mining 
ground  and  property,  in  superintending  and 
directing  prospecting  and  development  work 
of  said  ground,  and  in  sampling  and  assaying 
ore  taken  therefrom,  In  acting  as  consulting 
engineer  in  and  about  the  work  and  develop- 
ment of  said  property ;  that  for  said  services 
plaintiff  agreed  to  accept  the  sum  of  $218  per 
month,  which  said  defendant  corporation 
stipulated,  promised,  and  agreed  to  pay  plain- 
tiff therefor.  The  plaintiff  further  alleges 
that  he  entered  upon  the  employment  under 
the  said  agreement,  and  continued  constantly 
to  do  and  perform  all  and  singular  the  du- 
ties devolved  on  him  by  the  terms  and  condi- 
tions of  said  agreement,  until  the  2d  day  of 
September,  1904,  and  for  which  defendant 
is  Indebted  to  plaintiff  In  the  sum  of  $2,398, 
with  interest  thereon  from  the  2d  day  of  Sep- 
temtter,  1904.  There  were  also  added  allega- 
tions claiming  a  miner's  Hen  upon  the  min- 
ing property  owned  by  the  defendant,  but 
at  the  trial  this  claim  for  a  lien  was  abandon- 
ed. It  was  proven  upon  the  trial  that  the 
contract  was  entered  into  on  the  2d  day  of 
Jnly,  Instead  of  the  2d  day  of  October,  and 
the  plaintiff  was  allowed  to  amend  his  com- 
plaint accordingly,  as  It  was  shown  upon 
the  trial  that  the  plaintiff  had  been  paid  for 
his  three  months'  services  from  July  2d  to 
October  2d,  and  the  mistake  in  the  date  as 
to  the  time  the  contract  was  entered  into 
was  not  material.  The  defendant's  answer 
was  in  effect  a  general  and  specific  denial  of 


•For  other  cum  le*  lam*  topic  and  ucUon  NUMBER  In  Deo.  *  Am.  Dlxi.  UOT  to  date,  *  Reporter  IndaxM 


Digitized  by  VjOOQ  l€ 


S.D.) 


EHPSON  T.  RELIANCE  GOLD  KINING  00. 


847 


the  allegations  of  the  complaint  The  case 
was  tried  to  the  court  wltbont  a  Jury,  and  the 
court  found:  "(1)  That  on  or  about  the  2d 
day  of  July,  1003,  plaintiff  entered  the  em- 
ploy of  said  defendant  company  under  a 
verbal  contract,  under  and  by  the  terms  of 
which  he  was  to  receive,  and  said  defendant 
company  was  to  pay  him  as  compensation, 
the  Bum  of  $218  per  month.  (2)  That  for 
the  months  of  July,  August,  and  September, 
plaintiff  was  paid  by  defendant  company  at 
the  rate  stipulated  In  said  contract,  to  wit: 
The  sum  of  $218  per  month."  (3)  That  with 
the  exception  of  said  payments  above  stated, 
plaintiff  has  received  from  said  defendant 
company  no  payments  whatever  under  said 
contract  or  otherwise.  That  plaintiff  remain- 
ed In  the  employ  of  said  defendant  company 
from  said  2d  day  of  July,  1903,  until  the  2d 
day  of  September,  1904,  when  he  quit  the 
same,  having  served  said  defendant  company 
for  the  term  or  period  of  11  months  for 
which  be  had  received  no  compensation. 
That  during  the  months  of  March  and  April, 
1904,  the  plaintiff  performed  services  with 
the  consent  of  the  defendant  company  for  the 
Gilt  Edge  Maid  Mining  Company,  for  which 
he  was  paid  the  sum  of  ^18  per  month. 
That  the  plaintiff  did  not,  by  reason  of  his 
employment  with  said  Gilt  Edge  Maid  Mining 
Company,  abandon  or  quit  the  employ  of  said 
defendant,  but  was  at  all  times  during  said 
months  of  March  and  April,  in  readiness  to 
proceed  with  his  work  and  labor  under  said 
contract,  which  he  did  on  or  about  the  1st 
day  of  May,  1904,  and  continued  in  said 
employ  until  the  2d  day  of  September,  1904. 
That  plaintiff  was  never  discharged  from  the 
services  of  said  company.  That  daring  all 
of  aald  11  months  of  service  rendered  by  said 
plaintiff  for  defendant,  to  wit,  from  October 
2,  1903,  to  September  2,  1904,  the  said  de- 
fendant carried  plaintiff  on  its  books  as  an 
employfi  of  said  company,  and  each  month 
credited  him  with  the  sum  of  $218  for  one 
month's  service.  That  neither  said  company, 
nor  any  of  its  ofBcers  or  agents,  ever  at  any 
time  disputed  plaintiff's  right  to  payment 
for  said  11  months'  service,  until  after  this 
action  was  brought  That  after  plaintiff  had 
quit  the  onploy  of  defendant  company,  and 
his  account  was  presented  at  the  office  of  the 
company  for  payment  by  plaintlfTs  attorney 
and  agent  the  claim  was  at  no  time  question- 
ed or  disputed  by  said  company  or  its  of- 
ficers, but  payment  was  not  made  for  the 
reason  stated  by  the  officers  of  said  company 
that  there,  were  no  funds  with  which  to  pay 
the  same.  From  these  findings  the  court  con- 
cludes that  the  plaintiff  was  entitled  to  Judg- 
ment for  0  months'  services  (the  two  months 
for  which  be  was  paid  by  the  Gilt  Edge  Com- 
pany being  deducted),  at  the  stipulated  sum 
of  $218  per  month,  with  Interest  at  the  rate 
of  7  per  cent  per  annum  from  September  2, 
1904,  amounting  In  all  to  the  sum  of  $2,293.92. 
It  is  contended  by  the  defendant  that  it  Is 


not  shown  by  the  evidence  that  the  contract 
as  alleged  by  the  plaintiff  was  performed 
by  him,  and  that  the  court  erred  in  not  find- 
ing the  facts  as  proposed  by  the  defendant 
which  are  substantially  as  follows :  That  the 
plaintiff  was  employed  by  the  defendants  to 
perform  the  following  services  for  said  com- 
pany (specifying  in  detail  the  services),  and 
that  during  the  11  months  between  October. 
1903,  and  August  1904,  the  period  sued  for  In 
this  action,  the  plaintiff  failed  and  refused 
to  assay  the  ore  from  the  mine  of  the  de- 
fendant and  he  failed  and  refused  to  make 
chemical  tests  of  the  same,  and  he  failed  and 
refused  to  ascertain  the  process  and  method 
of  treating  the  same;  that  he  failed  and 
refused  to  assist  in  the  sale  of  stock  of  the 
defendant  company;  that  he  failed  and  re- 
fused to  design  and  plan  the  mill  of  the  de- 
fendant; that  he  failed  and  refused  to  ac- 
company Investors  to  the  mining  property  of 
the  defendant  and  that  he  failed  and  re- 
fused to  check  up  the  mine  superintendent 
and  report  the  same  to  the  defendant;  that 
the  plaintiff  failed  and  refused  to  perform 
each  and  every  term  and  condition  of  his  said 
contract  with  the  defendant  company;  that 
the  plaintiff  left  the  employ  of  the  defendant 
company  of  his  own  volition  and  accord  In 
the  month  of  September,  1904.  The  defend- 
ant therefore,  claimed  in  effect  that  the  find- 
ings of  the  court  are  not  supported  by  the  evi- 
dence. 

Presumptively  the  findings  of  the  court  are 
correct  and  unless  the  evidence  clearly  pre- 
ponderates against  such  findings,  they  will 
not  be  disturbed  by  this  court  Randall  t. 
Burke  Twp.,  4  8.  D.  837,  67  N.  W.  4;  Peld- 
man  v.  Trumbower,  7  a  D.  408,  64  N.  W.  189 ; 
Reagan  v.  McKlbben,  11  S.  D.  270,  7«  N.  W. 
943;  Llttlejohn  v.  Creamery  Co.,  14  S.  D. 
312,  85  N.  W.  BSa  We  are  clearly  of  the 
opinion  In  this  case  that  the  findings  of  the 
court  are  not  only  presumptively  correct  but 
are  clearly  established  by  the  preponderance 
of  the  evidence.  As  will  be  observed,  the 
making  of  a  contract  between  the  defendant 
and  the  plaintiff  is  substantially  conceded  by 
the  proposed  findings  of  the  defendant  and 
the  payment  to  the  plaintiff  for  the  3  months 
between  the  2d  of  July  and  the  2d  of  October 
is  practically  conceded.  The  fact  that  he 
was  carried  upon  the  pay  roll  of  the  defend- 
ant, and  credited  monthly  with  $218  per 
month,  is  clearly  established  by  the  books  of 
the  defendant  It  was  also  shown  by  two 
witnesses  that  nearly  a  year  subsequent  to 
the  time  the  plaintiff  left  the  employ  of  the 
defendant  the  defendant's  officers  admitted 
that  the  amount  claimed  by  the  plaintiff  was 
due  him,  but  as  fohnd  by  the  court,  gave  as 
a  reason  for  the  nonpayment  of  his  claim 
that  they  had  not  the  funds  on  hand  to  pay 
him,  and  the  testimony  of  the  plaintiff  as  to 
the  making  of  the  contract  of  the  perform- 
ance of  the  services  required  by  him  under  It 
was  clear  and  explicit 


Digitized  by 


Google 


348 


122  NORTHWESTERN  REPORTER. 


C3.D. 


By  fhe  first  paragraph  of  the  complaint 
it  is  allied  that  the  defendant  was  the  own- 
er of  some  15  or  20  mining  dalms  in  Wliite- 
wood  mining  district,  Lawrence  county,  and 
that  by  the  second  paragraph  of  the  com- 
plaint, heretofore  quoted,  the  plaintiff  was  to 
take  charge  of  defendants'  mining  ground 
and  properties,  superintend  and  direct  the 
prospecting  and  development  work  on  the 
same,  sampling  and  assaying  ore  therefrom, 
acting  as  consulting  engineer  in  and  about 
the  work,  and  the  plaintiff's  evidence  was 
that  be  did  perform  all  the  work  required  of 
him  by  the  defendant  in  his  capacity  as  as- 
sayer  and  mining  engineer,  and  that  with  the 
exception  of  the  2  months  that  he  performed 
services  for  the  Oilt  Edge  Mining  Company, 
which  were  paid  for  by  that  company,  he  was 
engaged  in  performing  the  services  for  which 
he  was  employed  by  the  defendant,  and  that 
during  the  2  months  he  was  in  the  employ 
of  the  Gilt  Edge  Company,  be  was  at  all 
times  ready  and  willing  to  perform  any  of 
the  services  that  might  be  required  of  him 
by  the  defendant  company.  Certificates  of 
assay,  plans  for  reduction  works,  classifica- 
tion of  the  different  ores,  and  letters  of  the 
president,  before  and  after  the  plaintiff  left 
the  company's  employ,  in  effect  promising  to 
pay  him,  were  Introduced  in  evidence  on  the 
part  of  the  plaintiff.  It  is  clear,  therefore, 
that  the  plaintiff  under  the  evidence  intro- 
duced by  him  was  entitled  to  Judgment 
against  the  company  for  the  foil  amount 
awarded  to  him  by  the  court  On  the  trial 
the  learned  circuit  court,  over  the  objections 
of  the  plaintifTs  counsel,  permitted  officers  of 
the  defendant  company  to  testify  that  the 
plaintiff  had  not  complied  with  his  contract, 
and  that  he  had  not  performed  the  services 
required  by  them  imder  the  contract 

It  is  contended  by  the  respondent  that  this 
evidence  was  clearly  inadmissible,  for  the 
reason  that  the  answer  was  simply  a  general 
denial,  and  that  no  set-off,  counterclaim,  or 
facts,  stated  by  way  of  a  special  defense  to 
the  action,  were  pleaded.  But,  assuming  that 
the  evidence  of  the  defendant  was  admissible 
under  the  pleadings,  we  are  of  the  opinion 
that  the  trial  court  was  clearly  Justified  in 
finding  that  there  was  a  preponderance  of 
the  evidence  in  favor  of  the  plaintiff,  as  the 
claim  of  the  defendant  that  the  plaintiff  bad 
not  performed  the  duties  required  of  him,  and 
therefore  was  not  entitled  to  recover  against 
it,  was  clearly  in  confiict  with  the  conduct 
and  admissions  of  defendant's  officers,  prior 
to  the  commencement  of  the  action,  and  was 
disproved  by  a  clear  preponderance  of  the 
evidence  on  the  part  of  the  plaintiff.  In  the 
view  we  take  of  the  testimony,  we  do  not 
deem  it  necessary  to  review  the  many  points 
made  by  defendant's  counsel,  or  determine 
the  question  as  to  the  admissibility  of  the 
evidence  on  the  part  of  the  defendant  on  the 
pleadings. 


Finding  no  error  in  the  record,  the  Judg- 
ment of  the  court  below  and  order  denying 
a  new  trial  are  affirmed. 

WHITINO,  J.,  taking  no  part  in  the  de- 
cision. 


BREEDEN  ▼.  .aSTNA  LIFE  INS.  CO. 

(Supreme  Court  of  South  Dakota.    June  20, 
1900.) 

1.  Insurance  (|  5o5*)— Accident  Insubanck 
—Notice  and  Pboof  op  Injury— Waiveb. 

Failure  to  furnish  notice  of  an  accident  or 
proof  thereof  within  the  time  fixed  by  an  acci- 
dent policy  may  be  waived  by  insurer  or  its  gen- 
eral agent 

[Ed.  Note. — For  other  eases,  see  Insurance, 
Cent.  Dig.  f  1368;   Dec  Dig.  {  555.*] 

2.  IRSUBANCE  ({  558*)— Accident  Insubancb 
—Notice  and  Pboof  op  Injubt— Waiveb. 

Waiver  of  failure  to  furnish  notice  and 
proof  of  an  Injury  within  the  time  fixed  by  an 
accident  policy  may  consist  of  some  act  of  insur- 
er or  its  general  agent  inconsistent  with  the 
claim  that  the  policy  has  become  inoperativa 
throueb  such  failure,  such  as  retaining  withoat 
objection  the  proof  furnished,  or  requiring  addi- 
tional proof. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  g  1382 ;   Dec  Dig.  S  558.*] 

3.  Insubance  (I  146*)- Accident  Insubanck 
—Stipulations— CoNSTBUCTioN. 

A  clause  in  an  accident  policy  limiting  the 
time  for  tUe  giving  of  notice  and  the  furnishing 
of  proof  of  an  accident  covered  by  the  policy 
must  l>e  strictly  construed  against  insurer. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  f  295;    Dec  Dig.  {  146.*] 

4.  Insubanck  (|  665*)— Accident  Insubancb 
—Pboof  or  Injubt— Waives— BJvidence. 

Where  timely  notice  of  an  accident  covered 
by  an  accident  policy  was  given,  and  insurer 
had  every  reason  to  believe  that  insured  intend- 
ed to  present  his  claim,  and  insurer  could  not 
be  prejudiced  by  delay  in  furnishing  proof, 
slight  evidence  of  waiver  of  failure  to  furnish 
proof  within  the  time  fixed  will  be  sufficient 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  S  1725;  Dec.  Dig.  $  685.»] 

5.  Insubance  (S  558*)— Accident  Insubancb 
—Pboof  of  Injury- Waiveb. 

Where  the  proof  of  an  injury  covered  by  an 
accident  policy  was  retained  by  insurer  with- 
out objection,  though  furnished  after  the  time 
limited  in  the  policy,  and  the  general  agent  sub- 
sequently wrote  to  a  local  agent  to  procure  ad- 
ditional proof  and  to  fill  in  blanks  furnished,  a 
finding  of  waiver  of  failure  to  furnish  proof 
within  the  time  fixed  was  authorized. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent  Dig.  {  1388;   Dec  Dig.  {  558.*] 

6.  Insurance  (8  556*)— Accident  Insubanck 
—Pboof  -Waiver— Poweb  of  Agent. 

An  insurer  is  bound  by  the  acts  of  his 
general  managing  agent  waiving  a  failure  to 
furnish  proof  of  an  injury  within  the  time  fixed 
by  the  policy,  though  it  provides  that  no  agent 
has  authority  to  waive  any  condition  thereof. 

[Ed.  Note. — ^For  other  cases,  see  Insurance, 
Cent  Dig.  {  1376;  Dec.  Dig.  {  650.*1 

Appeal  from  Circuit  Court,  Hughes  County. 

Action  by  James  K.  Breeden  against  the 
JEtna  Life  Insurance  Company.  From  a 
Judgment  for  plaintiff,  defendant  appeals. 
Affirmed. 


•For  otber  cum  sea  tame  topic  and  section  NUMBER  So  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


S.D.) 


BREEDKN  v.  ^TNA  LIFE  INS.  CO. 


349 


Goodner  &  Goodner,  for  appellant.  Cbas. 
E.  De  Land  and  James  K.  Breeden,  for  re- 
spondent 

McCOY,  J.  From  the  record  in  this  case 
It  appears  tbat  in  March,  1904,  the  defendant, 
ilStna  Life  Insurance  Company,  Issued  to 
plaintiff,  James  K.  Breeden,  Its  policy  of  ac- 
cident insurance,  and  that  thereafter  while 
said  policy  was  In  force,  on  the  lltb  day  of 
November,  1904,  the  plaintiff  met  with  an  ac- 
cident, being  thrown  fretn  bis  buggy  and  In* 
Jured,  and  rendering  plaintiff  wholly  help- 
less for  the  space  of  eight  weeks,  from  No- 
rember  11,  1904,  to  January  6, 1905,  and  that 
from  the  7tb  day  of  January,  1905,  to  July  7, 
1905,  plaintiff  for  a  period  of  26  weeks  was 
partially  disabled,  and,  under  the  provisions 
of  said  policy,  plaintiff  became  entitled  to 
Indemnity  in  such  stated  sums  per  week  as 
were  therein  provided.  On  February  26, 
190C,  plaintiff  made  and  fnmlshed  to  defend- 
ant written  proofs  of  his  disability  and  the 
duration  thereof.  Clause  16  of  said  policy 
provides  as  follows:  "Immediate  notice  In 
writing  of  any  accident  or  injury  shall  be 
given  to  said  company  at  Hartford,  Conn., 
with  full  particulars  and  name  and  address 
of  the  insured,  and  unless  affirmative  proof 
of  the  partial  or  total  disability,  and  that  the 
same  was  the  result  of  external  violence  or 
accidental  means.  Is  so  furnished  within  two 
months  from  the  termination  of  total  or  par- 
tial disability,  the  said  company  shall  be  re- 
leased from  all  liability  for  the  payment  of 
any  claim  based  on  said  Insurance  policy." 
The  defendant  contends  that,  by  reason  of 
the  plaintiff  having  failed  to  fnmlsh  proof 
ot  disability  within  the  time  specified  in 
said  clause  16,  It  has  become  released  from 
all  obligation  to  pay  plaintiff.  Plaintiff  con- 
tends that,  under  the  evidence  in  this  case, 
defendant  should  be  held  to  have  waived  the 
time  limit  provision  of  said  clause  16. 

It  appears  in  the  evidence :  That  one  James 
Door  at  the  time  of  the  issuance  of  said  pol- 
icy, and  up  until  April,  1906,  was  acting  as 
the  general  managing  agent  of  defendant, 
and  that  one  Gleckler  during  the  years  1904, 
1905,  and  1906  was  adtlng  as  local  agent  of 
defendant  at  Pierre,  where  plaintiff  resided. 
That  the  policy  was  solicited  by  and  the  pre- 
miums paid  to  Gleckler,  and  that  the  policy 
was  Issued  by  defendant  and  countersigned 
by  Door,  general  agent.  It  appears  that  Door 
and  defendant  were  duly  notlfled  In  writing 
of  the  accident  immediately  after  Its  occur- 
rence. It  also  appears  that  plaintiff  wrote 
to  Door  prior  to  August  14,  1905,  and  again 
on  that  date  for  blanks  on  which  to  make 
pivof  of  claim,  thus  indicating  to  defendant 
tbat  he  Intended  to  present  his  claim  under 
this  policy,  and  that  Door  immediately  sent 
the  blanks,  and  that  on  February  26,  1906, 
plaintiff  furnished  to  defendant  formal  writ- 
ten proofs,  which  were  retained  by  defendant 
without  objection,  and  that.  Immediately  aft- 
er the  receipt  of  such  proofs.  Door  wrote 


Gleckler  to  further  investigate  plaintitTs  dis- 
ability, and  the  duration  thereof,  and  inclos- 
ed to  Gleckler,  with  the  letter,  a  blank  proof 
filled  out,  except  as  to  length  of  time  of  dis- 
ability, and  requested  Gleckler  to  ascertain 
the  length  of  time  of  the  disability  and  fill 
in  the  blank,  and  Gledcler,  upon  receipt  of 
this  letter,  immediately  saw  plaintiff  and  as- 
certained the  length  of  time,  and  also  pro- 
cured from  the  attending  physician  a  certifi- 
cate as  to  the  duration  of  plaintiff's  disabil- 
ity, and  forwarded  the  same  to  Door  during 
the  month  of  March,  1906.  The  position  is 
not  tenable  that  the  writing  of  this  letter  by 
Door  to  Gleckler  Immediately  after  the  fur- 
nishing of  proofs  by' plaintiff  was  Independ- 
ent investigation  on  the  part  of  defendant 
About  April  7,  1906,  defendant  through  its 
agent  Door  notified  plaintiff  that  payment 
was  refused  on  the  ground  that  proof  had  not 
been  furnished  within  two  months  after  the 
termination  of  the  partial  disability.  A  fail- 
ure to  furnish  the  notice  of  accident  or 
proofs  of  injury  within  the  required  time 
may  be  waived  by  the  Insurer  or  its  gener- 
al agent.  Waiver  may  consist  of  some  act  on 
the  part  of  the  Insurer,  or  its  general  agents. 
Inconsistent  with  Its  claim  that  the  policy 
has  become  Inoperative  through  the  failure 
to  furnish  the  proof  of  loss  within  the  time 
required,  such  as  retaining  the  proofs  fur- 
nished without  objection,  or  requiring  fur- 
ther Information  or  additional  proofs.  1  Cyc. 
278 ;  Standard  Ins.  Co.  v.  Davis,  59  Kan.  621, 
53  Pac.  856 ;  Peabody  v.  Fraternal  Ace.  Soc, 
89  Me.  96,  35  Atl.  1020;  Moore  v.  Wildey 
Casualty  Co.,  176  Mass.  418,  57  N.  E.  673; 
Hohn  V.  Inter-State  Casualty  Co.,  115  Mich. 
79,  72  N.  W.  1105;  Martin  v.  Manufacturers' 
Indemnity  Co.,  151  N.  Y.  94,  45  N.  E.  377; 
Trlppe  V.  Provident  Fund  Soc,  140  N.  T.  23, 
35  N.  E.  316,  22  L.  R.  A.  432,  37  Am.  St.  Rep. 
529 ;  Meyers  v.  Maryland  Cas.  Co.,  123  Ma 
App.  682,  101  S.  W.  124;  Young  v.  Railway 
Mall  Ass'n,  126  Mo.  App.  325,  103  S.  W.  557 ; 
Spring  Garden  Ins.  Co.  v.  Whayland,  103  Md. 
699,  64  Atl.  925.  Conditions  as  to  time  lim- 
it such  as  contained  in  clause  16  of  the  pol- 
icy In  qnestlon  should  be  strictly  construed 
against  the  insurer.  Odd  Fellows  Ace.  Soc. 
v.  Earle,  70  Fed.  16,  34  U.  S.  App.  285,  16  C. 
C.  A.  696 ;  Edge  v.  St.  F.  &  M.  Ins.  Co.',  20 
8.  D.  190,  105  N.  W.  281.  In  a  case  like  this, 
where  there  could  have  been  no  possible  prej- 
udice to  any  right  of  the  insurer  by  reason 
of  the  delay  In  furnishing  proofs,  where  the 
notice  of  the  accident  was  timely  given,  and 
where  the  insurer  had  every  reason  to  know 
and  believe  that  plaintiff  Intended  to  present 
his  claim,  slight  evidence  of  waiver  should 
prevail.  National  Masonic  Ace.  Ass'n  v.  Mc- 
Brlde,  162  Ind.  379,  70  N.  E.  483.  When  gen- 
eral managing  agent.  Door,  wrote  Gleckler 
to  procure  further  Information  and  additional 
proofs  and  fill  in  blanks,  after  the  two 
months  time  limit  had  expired,  and  when  the 
proofs  sent  in  by  plaintiff  were  retained  by 
defendant  without  objection,  these  were  all 


Digitized  by  VjOOQ  l€ 


350 


122  NORTHWESTERN  REPORTER. 


(IS.D. 


acts  Inconsistent  with  tbe  contention  and 
theory  of  defendant  that  the  policy  had  be- 
come Inoperative  through  plaintiff's  failure 
to  furnish  the  proofs  within  two  months  aft- 
er termination  of  disability.  Door  being 
general  managing  agent  of  defendant,  the  de- 
fendant was  bound  by  his  acts  notwithstand- 
ing the  fact  that  the  policy  provided  that  "no 
agent  has  authority  to  waive  or  change  any 
condition  of  this  policy."  Reed  v.  Conti- 
nental Ins.  Co.  (Del.  Super.)  65  Atl.  609 ;  Ind. 
River  Bank  v.  Hartford  Ins.  Co.,  46  Fla.  283, 
35  South.  228;  Ohio  Farmers'  Ins.  Co.  v. 
Vogle,  166  Ind.  239,  76  N.  E.  977,  8  L.  R.  A. 
(N.  S.)  960,  117  Am.  St.  Rep.  S82;  Peters  t. 
Piano  (S.  D.)  110  N.  W.  783. 

Finding  no  error  In  the  record,  the  Judg- 
ment of  the  lower  court  Is  affirmed. 


MAAO  V.  STUVBRAD. 

(Supreme  C!ourt  of  South  Dakota.     June  26, 
1909.) 

Appeal  and  Ebbob  ({  671*)— Rkview— Reo- 

OBD— Effect   of  Ohissiors. 

Where  tlie  only  assifrnments  of  error  are 
to  the  refusal  to  admit  evidence,  and  to  errors 
in  instnictioDs,  and  the  only  exception  in  the 
record  is  to  the  overruling  of  the  motion  for 
new  trial,  there  is  nothing  which  the  appellate 
court  can  review. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  i  2867;   Dec.  Dig.  {  671.f] 

Appeal  from  Circuit  Court,  Codington 
County. 

Action  by  Fred  Maag  against  Ounder  H. 
Stuverad.  From  a  Judgment  for  plaintiff, 
and  an  order  denying  a  new  trial,  defendant 
appeals.    Affirmed. 

Glass  &  Snyder,  for  appellant  Hanten  & 
Hanten,  for  respondent 

SMITH,  3.  This  Is  an  appeal  from  a  Judg- 
ment and  an  order  overruling  a  motion  for 
a  new  trial.  Tbe  action  was  brought  to  re- 
cover possession  of  a  disputed  strip  of  land, 
and  tbe  rights  of  plaintiff  and  defendant  de- 
pend upon  the  correct  location  of  the  quar- 
ter section  corner  on  the  east  line  of  section 
31,  township  119,  range  53  W.  of  the  fifth  P. 
M.  The  plaintiff  owned  the  E.  %  of  the  N.  E. 
%,  and  tbe  defendant  the  S.  E.  ii,  of  said  sec- 
tion 31.  An  issue  of  fact  raised  by  tbe  plead- 
ings, as  to  whether  the  original  government 
quarter  section  comer  was  located  at  a  cer- 
tain point  claimed  by  the  plaintiff,  or  at  a 
certain  other  place  located  by  tbe  county 
surveyor  and  claimed  by  defendant  to  be  tbe 
proper  point,  was  tried  to  a  Jury,  who  appear 
to  have  found  for  the  plaintiff  under  the  evi- 
dence. Judgment  was  thereafter  entered  for 
plaintiff. 

Three  assignments  of  error  are  presented 
by  the  record,  viz.:  "Tbe  court  erred:  First, 
In  refusing  to  admit  defendant's  Exhibit  A; 
second,  in  refusing  to  admit  defendant's  Ex- 


hibit B;  third,  errors  In  Instructing  the 
Jury."  Appellant's  counsel  have  filed  a  pur- 
ported abstract,  which  consists  of  more  than 
100  printed  pages.  An  examination  of  this 
abstract  does  not  disclose  a  single  objection 
by  appellant,  or  a  ruling  of  the  court,  or  an 
exception  entered  during  the  trial.  Nor  does 
it  disclose  an  exception  to  the  charge  of  the 
court,  nor  to  the  giving  of  any  charge  nixtn 
request,  nor  to  the  refusal  of  any  request 
by  appellant  The  only  exception  la  tbe  rec- 
ord is  to  the  order  overruling  the  motion  for 
a  new  trial.  In  this  state  of  the  record  there 
Is  nothing  before  this  court  for  review,  as  the 
assignments  of  error  do  not  even  cover  the 
order  overruling  the  motion  for  a  new  trial. 
The  Judgment  of  the  trial  court  Is  affirmed. 


CITY  OP  CENTERVIUA  v.  TURNER 
COUNTY. 

(Supreme  Court  of  South  Dakota.    June  26, 
1909.) 

1.  Taxation  (S  540*)— CoiXKcmoR— Compest- 

BATION. 

Sesa.  Laws  1890,  p.  293,  c.  184,  provides 
that  the  county  treasurer  shall  receive  a  stated 
salary,  and  that  all  fees  and  commissions  re- 
ceived by  him  shall  be  turned  into  the  salary 
fund,  and  that  the  excess  of  such  salary  fund 
shall  be  turned  into  the  county  general  fund. 
Comp.  Laws,  I  1417,  provides  that  each  county 
treasurer  shall  receive  for  his  services,  on  all 
money  collected  by  him  4  per  cent.  Rev.  Pol. 
Code,  (  12UQ,  pasE^  as  a  part  of  chapter  87,  p. 
112,  Sess.  Laws  1800,  provided  that  the  conn^T 
treasurer  shall  collect  city  and  school  taxes  In 
the  same  manner  as  other  taxes,  and  shall  re- 
tain 1  per  cent,  as  his  commission  for  collecting 
the  same.  Sess.  Laws  1890,  p.  112,  c.  37,  pro- 
vides that  "all  acts  and  parts  of  acts  inconsist- 
ent with  this  act  are  hereby  repealed."  Comp. 
Laws  1903,  §  1417,  which  was  carried  into  the 
Revised  Political  Code  as  section  1836,  provides 
that  "each  county  treasurer  shall  receive  for  his 
services  on  all  money  collected  by  him  for  eadk 
fiscal  year  four  per  cent.,  except  as  is  otherwise 
expressly  provided  by  law."  Held,  that  a  coun- 
ty treasurer  was  entitled  to  retain  but  1  pet 
cent,  for  tbe  collection  of  the  city  taxea  of  a 
city  of  the  third  class. 

[Ed.   Note.— For  other   cases,   see  Taxation, 
Dec.  Dig.  {  549.*] 

2.  LivrrATion  of  Actions  ({  66*)— Pabtiou- 
LAB  Actions  —  Liabilities  Cbeated  bt 
Statute. 

Under  Rev.  Code  Civ.  Proc.  {  60,  subd.  2, 
fixing  a  limitation  of  six  years  for  an  action  up- 
on a  liability  created  by  statute,  other  than  a 
penalty  or  forfeiture,  a  city  must  bring  a  suit 
against  a  county,  to  recover  an  excessive  amount 
of  the  city  taxes  retained  by  the  county  treas- 
urer as  collection  fees,  within  six  years  after 
the  statutory  time  when  the  taxes  shall  be  paid 
by  tbe  county  treasurer  to  the  city,  although  no 
demand  for  payment  was  made  on  the  county 
treasurer  within  the  terms  of  Rev.  Pol.  Code,  | 
126u,  providing  that  the  city  taxes  collected  by 
the  county  treasurer  shall  t>e  paid  over  to  the 
city  treasurer  on  the  first  day  of  every  month 
on  demand,  as  the  city  cannot  take  advantage 
of  its  own  failure  to  make  a  demand,  and  thus 
stay  the  running  of  the  statute. 

[EA.  Note.— For  other  cases,  see  limitation  of 
Actions,  Cent  Dig.  8  360;    Dec.  Dig.  {  66.*] 


*ror  othw  easM  see  sam*  topic  and  smUoii  NUMBBR  in  D«o.  *  Am.  Digs.  1M7  to  data,  &  Raportar  Indazas 


Digitized  by 


Google 


S.D.) 


CITY  OP  OBNTBEVILLE  v.  TURNER  COUNTY. 


851 


Appeal  from  Circuit  Court,  Turner  County. 

Action  by  the  City  of  CentervUle  against 
Turner  County.  Judgment  for  plaintiff,  and 
defendant  appeals.    Modified  and  affirmed. 

Ll  Ll  Fleeger,  for  appellant  Alan  Bogne, 
Jr^  for  respondent. 

McCOT,  J.  Trial  was  had  In  the  lower 
court  upon  an  agreed  statement  of  facta,  from 
which  It  appears  that  the  plaintiff  below  and 
respondent  here  is  a  city  of  the  third  class, 
situated  within  the  defendant.  Turner  coun- 
ty ;  that  between  the  20tb  day  of  November, 
1894,  and  the  Ist  day  of  December,  1906,  the 
duly  elected,  qualified,  and  acting  county 
treasurers  of  defendant  county,  as  officers 
thereof,  collected  from  plaintiff  the  sum  of 
138,621.86  In  taxes,  as  the  city  tax  for  the 
said  city,  and  that  the  said  amount  of  taxes 
was  paid  to  the  respective  treasurer^  of  said 
county  by  the  taxpayers  of  said  city ;  that  at 
several  times  during  each  year,  from  Novem- 
ber, 1804,  to  the  1st  day  of  December,  1906, 
tbe  resi>ective  treasurers  of  said  county  re- 
mitted to  said  city  the  city  taxes  so  collected 
during  said  period,  less  4  per  cent,  of 
the  total  amount  of  said  taxes  so  collected, 
which  the  said  treasurers  retained  as  a  com- 
mission for  collecting  the  said  taxes;  that 
the  total  amount  retained  by  said  treasurers 
during  the  said  period  was  $1,544.73,  or  4 
per  cent,  of  the  total  amount  so  collected; 
that  tbe  said  treasurers  during  said  period 
deposited  the  said  sum  of  $1,544.73,  so  re- 
tained as  such  commissions,  in  the  special 
salary  fund  of  tbe  said  county;  that  out  of 
the  said  salary  fund  certain  officers'  salaries 
were  paid,  and  tbe  balance  remaining  In  said 
fund,  at  the  end  of  each  fiscal  year,  was  de- 
posited by  the  proper  county  officer  In  the 
general  fund  of  the  county,  for  the  use  and 
benefit  of  the  said  county;  that  on  the  4th 
day  of  January,  1907,  tbe  plaintiff  presented 
to  the  said  county  a  duly  verified  account 
showing  the  receipts  and  disbursements  of 
said  taxes,  and  the  amount  retained  by  said 
county  as  commissions,  viz.,  |1,544.73,  being 
4  per  cent  of  the  total  tax  so  collected,  and 
demanded  that  said  county  account  for,  and 
pay  to,  plaintiff  city  $1,158.54,  the  difference 
between  1  per  cent  and  4  per  cent  of  the 
total  tax  so  collected,  and  the  defendant  re- 
jected and  disallowed  the  whole  of  said  de- 
mand, and  refused  to  pay  to  plaintiff  the 
said  $1,158.54,  or  any  part  thereof. 

The  trial  court  made  findings  of  fact  em- 
bracing the  foregoing  statement  of  fact.  The 
trial  court  also  made  conclusions  of  law ;  the 
third,  fourth,  and  fifth  being  as  follows:  "(3) 
That  the  defendant  is  made  by  law  tbe  agent 
of  tbe  plaintiff  to  collect  and  enforce  the 
collection  of,  the  said  taxes,  and  the  relation- 
ship  existing  between  the  plaintiff  and  de- 
fendant Is  a  fiduciary  one,  and  the  said  taxes 
when  so  collected  by  the  county  became,  and 
is,  a  trust  fund  in  the  possession  of  the  said 
county  acting  as  a  trustee  of  an  express 
trust    (4)  That  the  defendant  county  is  now 


holding  and  retaining  the  sum  of  $1,158.54  as 
taxes  belonging  to  the  plaintiff  (being  tbe  dif- 
ference between  1  per  cent  and  4  per  cent 
of  tbe  total  taxes  so  collected),  for  which  de- 
fendant must  account  to  plaintiff.  (5)  That 
the  plaintiff  is  entitled  to  Judgment  against 
the  defendant  for  tbe  sum  of  $1,158.54,  with 
interest  thereon  at  tbe  rate  of  7  per  cent  per 
annum  from  January  8,  1907,  and  for  costs. 
Let  Judgment  be  entered  accordingly."  To 
each  of  the  foregoing  conclusions  of  law  the 
defendant  duly  excepted,  and  judgment  was 
thereafter  rendered  and  entered  In  accord- 
ance with  the  foregoing  conclusions.  Tbe  ap- 
pellant contends  that  the  trial  court  erred  in 
making  conclusions  of  law  numbered  3,  4, 
and  5,  and  also  erred  in  entering  Judgment 
in  accordance  with  such  findings.  Tbe  appel- 
lant contends  that  the  fourth  conclusion  of 
law  Is  erroneous,  for  the  reason  of  the  pro- 
visions of  section  1417,  Comp.  Laws,  provid- 
ing that  each  county  treasurer  shall  receive 
for  his  services,  on  all  money  collected  by 
him  for  each  fiscal  year,  4  per  cent  and  the 
provisions  of  chapter  134,  p.  293,  Sess.  Laws 
1890,  providing  that  the  county  treasurer 
shall  receive  for  his  services  a  stated  salary, 
and  that  all  fees  and  commissions  received 
by  him  shall  be  turned  into  tbe  county  salary 
fund,  and  that  the  excess  of  such  salary 
fund,  if  any,  after  paying  designated  sal- 
aries, shall  be  turned  Into  tbe  county  gen- 
eral fund,  entitled  the  defendant  to  retain  4 
per  cent  of  tbe  said  taxes  so  collected  for 
the  said  city.  On  the  other  band,  the  re- 
spondent contends  that,  under  section  1263, 
Rev.  Pol.  Code,  passed  as  a  portion  of  chap- 
ter 37,  p.  62,  Sess.  Laws  1800,  providing  that 
the  county  treasurer  shall  collect  and  enforce 
the  collection  of  the  city  and  school  tax  with, 
and  in  the  same  manner  as  other  taxes,  and 
shall  pay  over  to  the  city  treasurer,  on  the 
first  day  of  every  month  on  demand,  all  such 
taxes  so  collected  during  the  preceding 
month,  retaining  1  per  cent  of  such  taxes 
as  his  commission  for  collecting  the  same, 
tbe  county  was  authorized  to  retain  only  1 
per  cent  of  tbe  said  taxes  so  collected  for 
the  city.  In  this  <^ntention  we  believe  re- 
spondent is  in  the  right  Next  to  the  last 
section  of  chapter  37,  p.  112,  Laws  1890,  pro- 
vides that  "all  acts  and  parts  of  acts  incon- 
sistent with  this  act  are  hereby  repealed," 
and  we  are  of  the  opinion  that  this  provision 
operated  to  repeal  section  1417,  Comp.  Laws, 
to  the  extent  and  in  so  far  only  as  it  relates 
to  the  collection  of  city  and  school  taxes  in 
cities  organized  under  the  general  law.  This 
seems  to  have  been  the  opinion  of  tbe  com- 
mission, who  revised  tbe  laws  of  this  state 
in  1903,  as  section  1417,  Comp.  Laws,  which 
was  carried  into  the  Revised  Code  as  section 
1836,  Rev.  Pol.  Code,  now  reads:  "Bach, 
county  treasurer  shall  receive  for  his  services 
on  all  money  collected  by  bim  for  each  fiscal 
year,  four  per  cent  except  as  is  otherwise 
expressly  provided  by  law."  Therefore  the 
county  treasurer  was  authorized  to  retain 


Digitized  by  VjOOQ  l€ 


352 


122  NORTHWESTERN  REPORTER. 


(&D. 


from  the  city  and  school  tax  of  plaintiff  only 
1  per  cent,  thereof  for  commissions,  and  that 
when  4  per  cent  was  retained  the  city  would 
have  the  right  to  maintain  suit  and  recover 
the  excess  so  retained  over  1  per  cent. 

The  appellant  further  contends  that,  in 
the  event  the  plaintiff  should  recover  the  ex- 
cess of  1  per  cent  that  had  been  retained  by 
defendant  the  portion  of  the  said  taxes  which 
were  collected  by  the  said  county  treasurers 
for  the  period  of  time  between  the  20th  day 
of  November,  1894,  and  more  than  six  years 
prior  to  the  date  of  the  commencement  of 
this  action,  are  barred  by  the  statute  of  limi- 
tations, and  that  it  was  error  to  render  Judg- 
ment for  the  full  amount  for  the  entire  time 
from  November  20,  1894;  this  action  having 
been  commenced  on  January  10,  1907.  In 
this  contention  we  believe  appellant  is  right. 
Appellant  properly  pleaded  the  statute  of  lim- 
itations as  to  this  portion  of  plaintiff's  claim. 
It  is  contended  on  the  part  of  plaintiff  that 
inasmuch  as  the  trial  court  found  that  the 
defendant  is  made  by  law  the  agent  of  the 
plaintiff  to  collect  the  said  taxes,  and  that 
the  relationship  between  plaintiff  and  defend- 
ant was  a  fiduciary  one,  and  that  said  taxes, 
when  collected,  were  a  trust  fund  in  the 
hands  of  the  defendant,  in  the  execution  of 
an  express  trust,  the  statute  of  limitations 
will  not  run.  This  seems  to  be  the  general 
rule  In  some  Jurisdictions  where  there  has 
been  a  misappropriation  of  trust  funds ;  but, 
even  in  those  Jurisdictions,  It  seems  to  be 
held  that,  where  the  public  officer  or  munici- 
pality retains  the  money  under  claim  or  color 
of  right,  as  in  the  case  at  bar,  then  the  stat- 
ute of  limitations  applies,  and  that  the  claim 
will  be  barred  after  the  statutory  limit  has 
expired.  25  Cyc.  1164;  Newsom  v.  Bartholo- 
mew, 103  Ind.  526,  3  N.  E.  103;  Churchman 
v.  Indianapolis,  110  Ind.  259,  11  N.  E.  301; 
Jasper  Twp.  v.  Wheatland  Twp.,  62  Iowa,  62, 
17  N.  W.  205.  But  whatever  the  rule  may  be 
in  other  Jurisdictions,  we  are  of  the  opinion 
that  section  CO,  subd.  2,  Rev.  Code  Civ.  Proc, 
providing:  "Within  six  years:  An  action 
upon  a  liability  created  by  statute,  other  than 
a  penalty  or  forfeiture" — is  conclusive  of  this 
question.  The  right  to  recover  in  this  action 
is  upon  a  liability  created  by  statute.  Oth- 
er Jurisdictions  having  a  similar  statute  of 
limitations  on  this  point  uniformly  seem  to 
hold  that  it  applies  to  this  very  character  of 
action,  and  that  authorities  in  Jurisdictions 


without  such  a  statute  are  not  applicable 
even  in  trust  cases.  25  Cyc.  1052,  and  cases 
there  cited  under  notes  29  and  30. 

It  will  be  observed  that  section  1265,  Rev. 
Pol.  Code,  provides  that  the  city  and  school 
taxes  collected  by  the  county  treasurer  shall 
be  paid  over  to  the  city  treasurer  on  the  first 
day  of  every  month  on  demand;  and,  al- 
though the  fact  that  a  suit  might  not  be 
maintainable  against  the  treasurer  of  the 
county  before  demand  made  (a  question  which 
it  is  not  necessary  to  decide  in  this  case), 
still  that  would  avail  the  plaintiff  nothing 
in  the  case  at  bar.  "Although  a  demand 
may  have  been  necessary  before  cause  of  ac- 
tion could  accrue,  a  party  cannot  take  advan- 
tage of  his  own  failure  to  make  a  demand  in 
order  to  prevent  the  running  of  the  statute, 
where  the  period  of  limitatibD  has  already 
elapsed.*  To  hold  otherwise  would  put  it  in 
the  power  of  the  party  to  destroy  the  benefi- 
cial effect  of  the  statute."  Newsom  v.  Board 
of  Com'rs,  103  Ind.  526,  3  N.  E.  163;  25  Cyc. 
1207.  And  where  the  demand  is  a  prelim- 
inary step  referring  only  to  the  remedy,  and 
not  to  the  right,  the  action  will  be  barred 
if  the  demand  is  not  made  within  the  statu- 
tory period.  This  rule  is  applicable  to  suits 
against  public  ofilcers  and  municipalities. 
Easton  v.  Sorenson,  63  Minn.  309,  55  N.  W. 
128 ;  25  Cyc.  1209.  Again,  where  the  statute 
fixes  the  time  when  the  demand  stiall  be 
made,  the  claim  is  barred,  unless  the  demand 
is  made  within  the  statutory  period.  This 
section  1265  provides  that  the  county  treasur- 
er shall  pay  over  to  the  city  treasurer  on  the . 
first  day  of  each  month  on  demand,  thus  flx> 
ing  a  time  at  which  the  demand  should  be 
made. 

Each  one  of  the  payments  required  to  be 
made  under  section  1265  being  a  cause  of  ac- 
tion In  itself,  and  all  such  payments  made 
prior  to  January  10,  1901,  being  barred  by 
the  statute  of  limitations.  It  is  ordered  that 
this  action  be  remanded  to  the  circuit  court, 
with  directions  to  ascertain  by  evidence  the 
amount  of  said  taxes  paid  to  Turner  county, 
or  its  treasurers,  after  January  10,  1901,  and 
modify  and  enter  Judgment  in  favor  of  plain- 
tiff for  such  amount  as  shall  l>e  found  to 
have  been  so  imid  after  said  date,  with  costs 
in  favor  of  plaintiff  in  the  circuit  court,  and 
that  appellant  be  awarded  costs  on  this  ap- 
peal. 

SMITH,  J.,  took  no  part  la  this  decision. 


Digitized  by 


Google 


Mich.) 


PEOPLE  V.  BANKERS'  SUBETY  CO. 


353 


PEOPLB     r.     BANKERS'     SURETY     CO. 

SAME  T.  PEDBRAIi  UNION  SURETY  00. 

SAME  ▼.  UNITED  STATES  FIDELITY  & 

GUARANTY  CO. 
(Supreme  Coart  of  Michigan.    July  16,  1909.) 

1.  Depobitakieb  (8 14*)  —  Action  on  Bond  — 
SuFRciBRCY  or  Declasation. 

In  an  action  on  the  bond  of  a  depositary  of 
the  State  Treasurer,  the  declaration  set  out  the 
contract  between  the  treasurer  and  depositary, 
and  the  bond  given  pursuant  thereto,  and  al- 
leged that  after  the  making  of  the  agreement, 
the  treasurer  deposited  the  funds  of  the  state 
to  the  certain  amount;  that  on  a  certain  date 
after  the  expiration  of  the  treasurer's  first 
term  of  office,  the  depositary  was  indebted  to  the 
state  for  such  deposits  in  a  certain  amount; 
that  on  snch  date  demand  was  made  on  the  de- 
positary for  repayment  of  such  amount ;  and 
that  the  demand  was  refused.  Held,  that  the 
declaration  sufficiently  alleged  the  funds  to 
have  been  deposited  during  the  treasurer's  term 
of  office  covered  by  the  agreement. 

[Ed.  Note. — For  other  cases,  see  Depositaries, 
Dec.  Dig.  i  14.»] 

2.  Depobitabieb  (|  14*)— Vauditt  of  Con- 
TBACT— Action  on  Bond. 

That  a  State  Treasurer  contracted  with  a 
bank  as  depositary,  of  which  he  was  president, 
does  not  affect  the  state's  cause  of  action  against 
the  bank  and  its  sureties  to  recover  the  deposits. 
[Eli.  Note.— For  ottier  cases,  see  Depositaries, 
Dec.  Dig.  I  14.*] 

Certiorari  to  Circuit  Court,  Ingham  Coun- 
ty;   Howard  Wiest,  Judge. 

Separate  actions  by  the  People  of  the  State 
of  Michigan  against  the  Bankers'  Surety 
Company,  the  Federal  Union  Surety  Compa- 
ny, and  the  United  States  Fidelity  &  Guar- 
anty Company.  To  review  a  Judgment  for 
plaintiff  in  each  case  on  demurrer  to  the  dec- 
laration, defendants  bring  certiorari,  and  the 
several  cases  were  heard  together.    Affirmed. 

Argued  before  BIAIR,  C.  J.,  and  GRANT, 
HOOKER,  McALVAY,  and  BROOKE,  JJ. 

John  E.  Bird,  Atty.  Gen.,  and  George  S. 
Law,  Asst  Atty.  Gen.,  for  the  People.  Shaw, 
Warren,  Cady  &  Oakes  and  Moore  &  Moore 
(Carson,  Thompson  &  Dowden,  of  counsel), 
for  defendants. 


BLAIR,  C  J.  Proceedings  by  writs  of  cer- 
tiorari to  review  the  orders  entered  In  the 
above-entitled  causes,  overruling  the  respec- 
tive demurrers  to  plaintiff's  declarations  filed 
therein.  The  demurrers  In  the  several  caus- 
es raising  substantially  the  same  questions, 
the  records  were  consolidated  into  one. 

Mr.  Glazier's  first  term  as  State  Treasurer 
commenced  January  1, 1905.  He  was  elected 
to  a  second  term  at  the  general  November 
election  in  1906.  The  declaration,  filed  pur- 
suant to  section  10,050,  Comp.  Laws,  is  In 
assumpsit  upon  an  express  contract,  and  sets 
up  the  following  facts:  "For  that  whereas, 
heretofore,  to  wit,  on  the  26th  day  of  Jan- 
uary, A.  D.  1905,  Frank  P.  Glazier,  as  Treas- 
urer of  the  State  of  Michigan,  and  the  Chel- 
sea Savings  Bank,  of  Chelsea,  Mich.,  a  cor- 


poration organized  and  existing  under  and 
pursuant  to  the  laws  of  the  state  of  Mich- 
igan, entwed  into  a  certain  agreement  in 
writing  and  under  seal,  and  to  the  court  now 
here  shown,  in  words  and  figures  following: 
This  agreement,  made  the  26tb  day  of 
January,  A.  D.  one  thousand  nine  hundred 
five,  by  and  between  Frank  P.  Glazier,  as 
Treasurer  of  the  State  of  Michigan,  party 
of  the  first  part,  and  Chelsea  Savings  Bank, 
Chelsea,  Michigan,  party  of  the  second  part, 
wltnessetb  as  follows:  First,  the  party  of 
the  first  part  agrees  to  make  cihelsea  Savings 
I  Bank,  Chelsea,  Mich.,  aforesaid,  a  depository 
of  a  part  of  the  surplus  funds  belonging  to 
the  state  of  Michigan  aforesaid,  as  author- 
ized by  law;  second,  the  said  Chelsea  Sav- 
ings Bank  agrees  to  receive  and  safely  keep 
all  such  surplus  funds  of  said  state  of  Mich- 
igan, as  may  be  offered  or  deposited  by  said 
State  Treasurer,  and  to  reimburse  and  pay 
the  same  to  said  State  Treasurer,  or  his 
successor  in  office,  or  whoever  may  be  law- 
fully entitled  to  receive  the  same,  whenever 
called  for;  and  to  pay  interest  on  such  sur- 
plus funds  so  deposited  with  said  Chelsea 
Savings  Bank  at  such  rate  as  shall  from 
time  to  time  be  designated  by  the  State 
Treasurer,  not  to  exceed  three  per  cent,  per 
annum;  to  be  computed  on  daily  balances, 
j  and  paid  on  the  twenty-fifth  day  of  each 
;  month,  or  at  any  other  time  when  the  ac- 
I  count  may  be  closed;  third,  it  is  mutually 
I  agreed  by  and  between  the  respective  par- 
!  ties  hereto  that  the  said  Chelsea  Savings 
Bank  shall  at  all  times  keep  a  true  and  Just 
account  of  all  moneys  and  funds  deposited 
by  the  said  Frank  P.  Glazier,  as  treasurer, 
as  aforesaid,  and  render  to  him  monthly 
statements  thereof;  and  that  the  said  (Chel- 
sea Savings  Bank  shall  at  all  times  honor 
and  pay  all  drafts  and  diecks  of  the  said 
Frank  P.  Glazier  as  treasurer,  as  aforesaid, 
]  to  the  amount  of  the  funds  so  deposited  by 
him  as  aforesaid.'"  That  on  January  26, 
1906,  the  said  bank,  as  principal,  executed 
and  delivered  to  said  Glazier,  as  treasurer, 
bonds  executed  by  said  defendants,  respec- 
tively, as  sureties,  with  the  following  condi- 
tions: "The 'condition  of  the  aI>ove  obliga- 
tion is  such  that,  whereas,  the  above-named 
l>ank,  principal  herein,  has  been  designated 
by  the  said  Frank  P.  Glazier,  as  Treasurer 
of  the  State  of  Michigan,  as  one  of  the  depos- 
itories of  the  surplus  funds  belonging  to  the 
state  of  Michigan;  and  whereas,  the  said 
Frank  P.  Glazier,  as  said  Treasurer,  has  en- 
tered Into  a  certain  contract  with  siild  bank, 
principal  herein,  with  reference  to  the  said 
surplus  funds  so  to  be  deposited  with  it,  a 
copy  of  which  is  hereto  attached,  and  made 
a  part  hereof:  Now  therefore,  if  the  above- 
bounden  bank  as  principal  shall,  in  accord- 
ance with  the  said  contract,  safely  keep  and 
reimburse  and  pay  over  upon  debiand  all 


•For  other  caaei  lee  lame  topic  and  ■ection  NUMBER  In  Dec.  &  Am.  Dlgt.  1907  to  date,  &  Reporter  Indezn 
122  N.W.-23 


Digitized  by  VjOOQ  l€ 


354 


122  XORTUWESTEUN  REPOKTEE. 


(MIcta. 


moneys  belonging  to  tbe  said  state  of  Micli- 
igan,  and  deposited  -with  it  by  tlie  said  State 
Treasurer  in  accordance  with  the  said  con- 
tract, to  the  said  State  Treasurer,  his  suc- 
cessor or  successors  in  office,  or  to  any  other 
person  lawfully  entitled  to  receive  the  same, 
and  shall  in  -all  things  perform  the  conditions 
of  said  contract,  then  this  obligation  to  l>e 
void,  otherwise  to  remain  in  full  force  and 
effect  It  is  mutually  understood  and  agreed 
between  the  parties  hereto  that  if  the  said 
surety  shall  so  elect,  its  liability  for  future 
actions  or  omissions  of  said  principal  may 
be  terminated  by  giving  thirty  (30)  days'  no- 
tice in  writing  to  the  said  Frank  P.  Glazier, 
as  treasurer  as  aforesaid,  or  his  successor 
or  successors  in  office,  and  a  like  notice  to 
the  Secretary  of  State  and  Auditor  General 
of  said  state;  and  the  liability  of  said  sure- 
ty for  the  future  actions  or  omissions  of  said 
principal  shall  cease  at  the  expiration  of 
said  thirty  (30)  days,  the  said  surety  remain- 
ing liable  for  all  or  any  acts  of  commission 
or  omission  covered  by  this  bond  or  said  con- 
tract, up  to  and  Including  the  date  of  expira- 
tion of  said  thirty  (30)  days'  notice.  The 
said  surety  shall,  upon  the  termination  of 
this  bond,  and  its  release  from  all  liability 
hereunder,  upon  request  refund  the  premium 
paid,  less  a  pro  rata  part  thereof  for  the 
time  this  bond  shall  have  been  In  force.  It 
Is  mutually  understood  and  agreed  that  the 
said  surety  shall  be  liable  hereunder  for  only 
such  proportion  of  the  total  loss  sustained 
by  the  said  Frank  P.  Glazier,  as  Treasurer 
of  the  State  of  Michigan,  or  bis  successor  or 
successors  in  office,  as  the  penalty  of  this 
bond  shall  bear  to  the  total  penalties  of  all 
bonds  furnished  by  said  Chelsea  Savings 
Bank  as  principal,  in  favor  of  said  State 
Treasurer,  and  in  no  event  shall  the  surety 
hereon  be  liable  hereunder  for  any  sum  in 
excess  of  the  penalty  of  this  bond.  •  »  • 
That  after  the  said  agreement  was  made  and 
entered  Into  as  hereinbefore  set  forth,  the 
said  Frank  P.  Glazier,  as  Treasurer  of  the 
State  of  Michigan,  from  time  to  time  de- 
posited with  the  said  Chelsea  Savings  Bank 
surplus  funds  of  tbe  state  of  Michigan,  and 
that  on,  to  wit,  the  18th  day  of  December,  A. 
D.  1007,  and  while  tbe  said  agreement  and 
the  said  writing  obligatory  hereinbefore  set 
forth  were  In  full  force  and  effect,  there 
became  and  was  due  to  the  state  of  Mich- 
igan from  the  said  Chel!<ea  Savings  Bank 
the  sum  of  six  hundred  elghty-flve  thou- 
sand five  hundred  and  eighty-seven  dollars 
and  seventy-nine  cents  ($685,587.79),  the 
same  being  surplus  funds  of  the  state  of 
Michigan  deposited  with  the  said  (Tbelsea 
Savings  Bank  by  tbe  said  Frank  P.  Gla- 
zier, a.s  Treasurer  of  the  State  of  Michi- 
gan, pursuant  to  the  terras  nnd  ooudltlons 
of  KUid  agreement.  That  on,  to  wit,  the  said 
181  h  day  of  I>ecember  A.  D.  1907,  and  while 
tlto  said  agreement  and  the  said  writing 
obligatory  hereinbefore  set  forth  were  In  full 
force  and  effect,  payment  of  the  said  sura  of 


six  bundled  eigbty-flve  thousand  five  hundred 
eighty-seven  dollars  and  seventy-nine  cents 
($685,587.79)  so  aue  the  state  ot  AXichiguu 
from  tbe  said  Chelsea  Savings  Bank,  as 
aforesaid,  was  demanded  of  and  from  the 
said  Chelsea  Savings  Bank,  by  the  said 
Frank  P.  Glazier,  as  Treasurer  of  the  State 
of  Michigan,  and  payment  thereof  refused, 
and  that  the  said  Chelsea  Savings  Bank  has 
not  paid  the  said  sum  of  six  hundred  eighty- 
five  thousand  five  hundred  eighty-seven  dol- 
lars and  seventy-nine  cents  ($685,587.79)  or 
any  i>art  thereof,  to  the  said  Frank  P.  Gla- 
zier, Treasurer  of  tbe  State  of  Michigan,  or 
to  his  successor  in  office,  or  to  any  other  per- 
son lawfully  entitled  to  receive  the  same, 
but  has  hitherto  wholly  neglected  and  refus- 
ed and  still  neglects  and  refuses  so  to  do." 

The  grounds  of  demurrer  relied  upon  are: 
First,  because  the  bond  set  up  in  tbe  declara- 
tion, if  valid,  would  only  cover  deposits 
made  during  the  first  term  of  office  of  Frank 
P.  Glazier  as  State  Treasurer,  and  since  tbe 
declaration  contains  no  allegation  that  any 
such  funds  were  deposited  within  such  time, 
no  cause  of  action  against  the  defendants  is 
set  up  in  tbe  declaration;  second,  because 
the  contract  sued  upon  is  an  illegal  contract, 
and  cannot  be  made  the  basis  of  a  suit. 

First  Accepting  as  correct,  for  the  purpos- 
es of  these  cases,  defendants'  construction 
of  the  State  Treasurer's  agreement  with  the 
bank,  that  agreement  related  to,  and  tbe 
bond  covered,  only  such  deposits  as  were 
made  by  blm  during  bis  first  term  of  c^cc, 
beginning  January  1,  1905,  and  terminating 
December  31,  1906.  Under  this  construction 
the  agreement  and  bond  are  to  be  treated 
precisely  the  same  as  though  Mr.  Glazier 
had  served  but  the  one  term,  and  another 
person  bad  held  the  office  for  the  term  be- 
ginning January  1,  1907.  The  declaration 
sets  out  the  agn'^ement  and  bond  in  extenso. 
It  alleges,  in  effect,  that  after  the  muking  of 
tbe  agreement  of  January  26,  1905,  the  said 
Glazier  deposited  with  said  bank,  as  State 
Treasurer,  from  time  to  time,  "pursuant  to 
tbe  terms  and  conditions  of  said  agreement,'' 
surplns  funds  of  the  state;  that  on  tbe  IStli 
day  of  December,  1907,  tbe  bank  was  in- 
debted to  tbe  state  for  surplus  funds  so  de- 
posited pursuant  to,  and  then  covered  by. 
the  agreement  and  bond  In  tbe  amount  of 
$(i8o,587.79 ;  that  payment  was  demanded  of 
the  bank  on  said  I8th  day  of  December  by 
said  Glazier  as  State  Treasurer  (of  whose 
election  to  succeed  himself  this  court  will 
take  Judicial  notice),  and  such  demand  was 
refused.  We  are  of  the  opinion  that  the  dei- 
laratlon,  construing  the  agreement  in  ac- 
cordance with  defendants'  contention,  alleg- 
ed, in  effect,  that  the  funds  sought  to  Ik' 
recovered  were  deposited  from  time  to  time 
during  bis  term  of  office  covered  by  the 
agi-eement.  We  sec  no  good  reason  for 
reading  into  the  declaration  a  claim  to  re- 
cover funds  deposited  b,T  another  treasurer 
succeeding  Mr.  Glazier.    Whether  under  tlils 


Digitized  by  VjOOQ  l€ 


Mlc^O 


BARENDSEN  v.  WILDEK. 


355 


declaration  the  plaintiff  may  recover  for 
fands  deposited  during  Mr.  Glazier's  second 
term  is  a  serious  question,  whlcli  we  do  not 
find  it  necessary  to  determine. 

Second.  Assuming  that  the  agreement  was 
executed  by  Mr.  Glazier  as  State  Treasurer, 
In  behalf  of  the  state  and  in  behalf  of  the 
bank,  as  president  thereof,  such  illegality 
-would  not  affect  the  state's  cause  of  action. 
The  case  in  this  aspect  falls  directly  within 
tlie  reasoning  of,  and  is  ruled  by,  the  case 
of  Buhrer  ▼.  Baldwin,  137  Mich.  203,  100  N. 
•w.  46a 

Ibe  order  of  the  circuit  Judge  is  aflSrmed, 
and  the  record  remanded  for  further  pro- 
ceedings. 


PEOPLE  T.  TITLE  GUARANTY  &  SURETY 

CO.  OF  SCRANTON,  PA. 
(Supreme  Court  of  Michigan.     July  15,  1900.) 

Depositabiks  (I  14*)— Action  on  Bond— Suf- 
ficiency OF  DBCLABATION. 

Where  one  of  the  bonds  of  a  state  deposi- 
tary provided  that  the  surety  should  be  liable 
for  only  such  proportion  of  the  total  loss  sustain- 
ed by  the  State  Treasurer  as  the  penalty  of  the 
bond  bore  to  the  total  penalties  of  all  the  bonds 
furnished  by  said  depositary,  as  principal  in 
favor  of  the  State  Treasurer,  tbe  declaration 
thereon  for  the  full  amount  of  $2S,000  is  suffi- 
cient if  it  alleges  the  defnult  to  be  over  $600,- 
UOO,  and  the  total  penalties  of  all  the  bonds  to 
be  $200,000. 

[Ed.  Note. — For  other  cases,  see  Depositaries, 
Cent  Dig.  §  27 ;    Dec  Dig.  S  14.»] 

Certiorari  to  Circuit  Court,  Ingham  Coun- 
ty;   Howard  Wlest,  Judge. 

Action  by  the  People  of  the  State  of  Mich- 
igan against  tbe  Title  Guaranty  &  Surety 
Company  of  Scranton,  Pa.,  on  a  bond.  Plain- 
tiff had  judgment  on  demurrer  to  the  dec- 
claration,  and  defendant  brings  certiorari. 
Affirmed. 

Argned  before  BLAIR,  C.  J.,  and  GRANT, 
HOOKER,  McALVAY,  and  BROOKE,  JJ. 

John  E.  Bird,  Atty.  Gen.,  and  George  S. 
r^w,  Asst.  Atty.  Gen.,  for  the  People.  Lu- 
naan  W.  Goodenough  (Alexis  C.  Angell,  of 
i-onnsel),  for  defendant. 

GRANT,  J.  This  is  a  companion  suit  to 
I'eople  V.  Bankers'  Surety  Co.,  People  v. 
Federal  Union  Surety  Co.,'  and  People  v. 
United  States  Fidelity  &  Guaranty  Co.,  122 
N.  W.  353,  In  which  an  opinion  has  been 
written  by  Chief  Justice  Blair  and  is  hand- 
ed down  herewith.  The  sole  ground  of  de- 
murrer in  this  case,  not  disposed  of  in  the 
opinion  In  those  cases,  is  "that  it  appears 
in  the  bond  declared  upon  that  the  liability 
of  the  defendant  is  limited  to  such  propor- 
tionate share  of  the  total  los.s  sustained  by 
Franlc  P.  Glazier,  as  Treasurer  of  the  State 
of  Michigan,  or  his  successor  or  successors 
In  otiice,  as  the  penalty  of  this  bond  shall 
bear  to  the  total  penalties  of  all  bonds  fur- 


nished by  tbe  said  Chelsea  Savings  Bank 
as  principal  in  favor  of  the  said  State  Treas- 
urer, and  the  amount  of  the  total  loss  sus- 
tained by  the  said  Frank  P.  Glazier,  as 
Treasurer  of  the  State  of  Michigan,  or  his 
successor  or  successors  in  office,  is  not  al- 
leged in  the  declaration."  The  clause  of 
defendant's  contract  on  which  the  question 
arises  is  stated  In  full  in  the  declaration,  and 
reads  as  follows:  "It  is  mutually  under- 
stood and  agreed  that  the  said  surety  shall 
be  liable  hereunder  for  only  such  proportion 
of  the  total  loss  sustained  by  the  said  Frank 
P.  Glazier,  as  Treasurer  of  the  State  of 
Michigan,  or  his  successor  or  successors  in 
office,  as  the  i>enalty  of  this  bond  shall  bear 
to  the  total  penalties  of  all  bonds  furnished 
by  said  Chelsea  Savings  Bank  as  principal, 
in  favor  of  said  State  Treasurer,  and  In  no 
event  shall  the  surety  hereon  be  liable  here- 
under for  any  sum  in  excess  of  the  penalty 
of  this  bond."  The  declaration  alleges  the 
deposit  of  surplus  funds  of  the  state  In  the 
bank;  that  on  December  18,  1007,  there  was 
due  from  the  bank  to  the  state  the  sum 
of  $G85,587.79;  that  on  that  date  demand  of 
payment  was  made  and  refused;  that  the 
total  penalties  of  all  the  bonds  given  to  se- 
cure the  state  Is  $200,000.  The  declaration, 
therefore,  alleges  liability  for  the  total  pen- 
alty of  the  defendant's  bond,  to  wit,  $25,000. 
and  claims  that  amount  in  full.  If  the  de- 
fendant is  entitled  to  any  deductions,  or  can 
sustain  any  defense  to  the  entire,  or  any  por- 
tion of  the,  amount  claimed,  those  questions 
are  open  to  it  upon  the  trial,  provided  that 
the  state  gives  evidence  of  tbe  case  set  forth 
in  Its  declaration. 
The  judgment  Is  affirmed 


BARENDSEN  v.  WILDER. 
(Supreme  Ck>urt  of  Michigan.     July  15,  1009.) 

1.  Bbokebs   (I    86*)— Actions  fob   Couvis- 
siONS— Evidence. 

In  an  action  by  a  broker  to  recover  com- 
missions for  sending  a  purchaser  to  defendant, 
evidence  for  defendant  held  to  contradict  plain- 
tiff's assertion  that  be  knew  tbe  purchaser  and 
had  sent  him  to  defendant's  place. 

[Ed.  Note. — For  other  cases,  see  Brokers,  Dec. 
Dig.  i  80.*] 

2.  Tbial  (S  194*)— iNSTBDcnoNs— Opinion  op  . 
Judge  as  to  Facts. 

In  an  action  by  a  broker  for  commissions, 
tbe  issue  was  whether  plaintiff  had  sent  the 
purchaser  to  defendant,  and  there  was  evidence 
for  defendant  that  plamtiff  had  told  defendant 
that  he  did  not  know  the  purchaser.  The  court 
instnictcd  the  jury  that,  it  they  found  any  testi- 
mony to  tbe  contrary  of  plaintiff's  assertion  that 
he  sent  the  purchaser  to  defendant,  they  were 
at  liberty  to  find  it,  but,  if  they  could  not,  then 
they  were  bound  to  take  the  testimony  as  it 
stood,  and  that  they  were  to  examine  tbe  evi- 
dence and  find  wherein  or  whereby  there  was 
any  testimony  to  the  effect  that  the  purchaser 
did  not  go  to  defendant's  house  under  the  direc- 
tion of  plaintiff,  and,  if  they  found  any  such  tes- 
timony, to  consider  it,  but,  if  they  found  no 
such    testimony,    that    their   duty    was    plain. 


•For  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  £  Am.  Digs.  1907  to  date,  &  Reporter  Indezea 


Digitized  by  VjOOQ  l€ 


356. 


122  NORTHWESTERN  BBPORTEB. 


(Mlcb. 


Held,  that  tiie  diam  wu  erroneous  u  an  ex- 
pression of  opinion  by  the  court  that  there  was 
no  testimony  In  the  record  contrary  to  plain- 
tiff's assertion  that  he  sent  the  purchaser  to  de- 
fendant. 

[Ed.  Note.— For  other  cases,  see  Trial,  Dec. 
Dig.  i  194.»] 

Error  to  Circuit  Conrt,  Kent  County ;  Wil- 
lis B.  Perkins,  Judge. 

Action  by  Benjamin  F.  Bareodsen  against 
Edward  M.  Wilder.  Judgment  for  plalntifl, 
and  defendant  appeals.    Reversed. 

Argued  before  OSTRANDER,  HOOKER, 
MOORB,  McALVAT,  and  BROOKE,  JJ. 

Maher  &  Barnard,  for  appellant  Mc- 
Knight  &  McAllister,  for  appellee. 

BROOKE,  J.  Plaintiff  recovered  a  Judg- 
ment for  $27.60  In  Justice's  court  for  Kent 
county  against  defendant  as  a  commission  up- 
on the  Bale  of  a  piece  of  real  estate.  The 
defendant  appealed  the  case  to  the  circuit 
court,  where  a  trial  by  Jury  was  had  resulting 
in  a  verdict  and  Judgment  of  no  cause  of  ac- 
tion. The  plaintiff  then  moved  for  a  new 
trial,  which  was  granted.  The  third  trial 
resulted  in  a  verdict  for  plaintiff  for  $27.50, 
upon  which  Judgment  was  entered.  This 
Judgnent  is  now  here  for  review. 

After  the  trial  Judge  had  submitted  the 
case  to  the  Jury,  and  it  had  deliberated  tor 
some  time  thereon,  it  was  brought  Into  court 
by  the  learned  Judge  (apparently  upon  his 
own  motion),  and  the  following  additional 
charge  was  given:  "The  Court:  Gentlemen, 
what  seems  to  be  the  difficulty?  Do  you  re- 
quire any  further  instructions  In  this  case? 
The  Foreman :  There  has  not  been  any  asked, 
your  honor.  In  any  way.  The  Court:  No 
further  Instructions  have  been  asked?  The 
Foreman:  No;  not  yet.  The  Court:  I  do 
not  see  why  you  take  such  a  long  time  in  de- 
ciding it  It  is  a  simple  question.  Yon  must 
consider  the  interest  of  the  parties,  and  I 
cannot  understand  why  you  were  so  long  In 
determining  this  case  unless  it  was  because 
some  of  you  need  some  further  instructions. 
The  facts  are  that  this  property  was  placed 
In  the  plaintltTs  hands  to  sell,  not  exclusive- 
ly, but  to  sell  or  to  secure  a  purchaser  there- 
for, and  the  simple  question  Is  whether  or  not 
I  this  man  Armstrong  who  testified  In  behalf 
of  the  plaintiff  went  to  Mr.  Barendsen's  of- 
fice In  response  to  an  advertisement,  and  was 
sent  by  Mr.  Barendsen  to  the  defendant's 
home,  and  was  left  to  negotiate  with  the  de- 
fendant for  the  purchase  of  these  premises. 
That  is  all  there  Is  to  It  The  defendant  tes- 
tified that  Armstrong,  when  he  came  to  his 
house,  told  him  that  Mr.  Barendsen  had  not 
sent  him.  These  two  ladies,  the  wife  of  the 
defendant  and  the  other  lady,  testified  to  sub- 
stantially the  same  thing.  I  told  you  that 
that  testimony  only  bore  upon  the  credibility 
of  Armstrong's  testimony.  It  is  not  substan- 
tive proof.    It  would  be  wholly  Inadmissible 


except  aa  bearing  upon  the  credibllltr  of 
Armstrong's  story.  It  would  not  make  any 
difference  to  Barendsen,  the  plaintiff,  what 
Mr.  Armstrong  might  tiave  believed  Armstrong 
said.  The  question  la:  Did  Armstrong  go 
there  under  the  direction  of  the  plaintiff? 
That  la  all  there  la  of  it  Now,  if  you  find 
any  testimony  in  the  record  to  the  contrary 
of  the  plaintlCTs  assertion,  why,  you  are  at 
liberty  to  find  It;  but,  If  you  cannot  then 
you  are  bound  to  take  the  testimony  as  it 
stands.  You  examine  this  evidence  and  find 
wherein  or  whereby  there  is  any  testimony  to 
the  effect  that  Armstrong  did  not  go  to  Wild- 
er's  house  under  the  direction  of  the  plain- 
tiff. If  you  find  there  Is  any  such  testimony, 
then  you  can  consider  it;  but  If  you  find 
there  Is  not  any  such  testimony,  your  duty  Is 
plain.  You  may  retire  with  the  officer."  To 
which  charge  the  defendant  excepted.  The 
defendant  assigns  error  upon  this  action  of 
the  clrcnlt  Judge.  The  record  shows  that  the 
defendant  testified  as  follows:  "I  told  Mr. 
Barendsen  before  the  papers  were  made  out 
that  the  property  was  sold,  and  I  showed 
him  the  $25  that  I  got  down.  I  told  him  who 
I  sold  it  to.  Q.  Did  he  at  that  time  say  any- 
thing about  Mr.  Armstrong  or  his  wife  being 
the  customer?  A.  He  said  he  did  not  know 
the  man."  This  la  certainly  testimony  tend- 
ing to  contradict  the  plalntlflTs  assertion  that 
he  knew  Armstrong,  and  had  sent  him  to  de- 
fendant's place.  Its  value  as  evidence  should 
have  been  determined  by  the  Jury  under  prop- 
er Instructions.  We  are  of  the  opinion  that 
the  last  paragraph  of  the  charge  above  quot- 
ed must  have  carried  the  conviction  to  the 
minds  of  the  Jury  that  in  the  opinion  of  the 
court  there  was  no  testimony  in  the  record 
contrary  to  the  plaintiff's  assertion.  This 
was  error.  See  Cronkhite  v.  Dlckerson,  51 
Mich.  177,  16  N.  W.  371 ;  Letts  ▼.  Letts,  91 
Mich.  596,  52  N.  W.  64;  Valln  V.  McKerreg- 
han,  104  Mich.  213,  62  N.  W.  340. 

Judgment  reversed,  with  costs  and  a  new 
trial  granted. 


PERE  MARQUETTE  R.  CO.  v.  KALAMA- 
ZOO, L.  S.  &  C.  RY.  CO. 

(Supreme  Court  of  Michigan.     July  15,  1009.) 

Raiuoads  (§  134»)— Leases— CoKSTRUCTION— 
TAXES—"yEAB." 

A  railroad  lease  which  took  effect  April  1.5, 
1907,  provided  that  the  lessee  should  pay  the 
full  amount  of  the  taxes  assessed  on  the  leased 
line  for  the  "year"  1907,  but  should  be  reim- 
bursed by  lessor  a  pro  rata  portion  thereof  to 
cover  the  period  of  1907  prior  to  the  taking  ef- 
fect of  the  lease.  Comp.  Laws,  g  60,  par.  10, 
provides  that  the  word  'Vear"  shall  mean  a  cal- 
endar year,  and  Pub.  Acts  1905.  p.  441,  No.  28*2, 
i  6,  requires  railroad  companies  annually,  be- 
tween the  Ist  day  of  July  and  the  31st  day  of 
August  in  each  year,  to  file  a  return  for  taxation 
with  the  state  board  of  assessors.  Held,  that 
since  the  tax  law  provides  for  taxes  for  each 
calendar  year,  and  the  taxes  for  one  year  are 
not  fixed  or  payable  until  the  first  of  the  follow- 


*For  other  cases  ««•  same  topic  and  section  NUMBER  in  Dec  *  Am.  Digs.  U07  to  date,  *  Reporter  Indues 


Digitized  by  VjOOQ  l€ 


Midi.) 


DEROSIA  V.  LOREE. 


357 


iDg  year,  rack  eection  6  did  not  contemplate  a 
fiscal  year  for  the  asaesament  of  nUlroaa  taxes 
extending  from  July  let  to  June  30tb;  and 
hence  tlie  word  "year,"  as  used  in  the  lease, 
meant  a  calendar  year  for  which  the  lessee  was 
entitled  to  reimbunsement,  and  not  an  alleged 
fiscal  year  extending  from  Joly  Ist  to  June 

aoth. 

iBH.  Note. — For  other  cases,  see  Railroads, 
Cent  Dig.  i  427 ;   Dec.  Dig.  |  134.* 

For  other  definitions,  see  Words  and  Phrases, 
TOL  8,  ppw  7551-7554,  7839.] 

Error  to  Circnit  Court,  Kalamazoo  Coun- 
tj;   Frank  E.  Knappen,  Judge 

Action  by  the  Pere  Marqnette  Railroad 
Company  against  the  Kalamazoo,  Lake  Shore 
ft  Chicago  Railway  Company.  Judgment  for 
plaintiff,  and  defendant  brlnga  error.  Af- 
firmed. 

TUB  caae,  an  action  in  assumpsit,  was 
tried  before  the  court  without  a  jury  upon 
stipulated  facts.  The  facts  material  to  the 
single  question  involved  are  these:  On 
March  23,  1907,  plaintiff  executed  to  the  de- 
fendant a  lease  of  that  portion  of  its  road 
lying  between  South  Haven  and  Lawton  for 
a  period  of  25  years.  The  lease  took  effect 
April  15,  1907,  and,  after  providing  that  the 
lessee  should  pay  the  taxes  during  its  life, 
It  contains  the  following  clause:  "As  to  the 
taxes  on  the  leased  property  for  the  year 
1907,  payable  in  May,  1908,  the  lessee  shall, 
in  the  same  case,  pay  the  full  amount  there- 
of to  the  proper  public  authorities,  but  shall 
be  re-lmbursed  by  the  Pere  Marquette  a  pro 
rata  portion  thereof  to  cover  the  period  of 
1907  prior  to  the  taking  effect  of  this  lease." 
On  April  80,  1908,  defendant  paid  the  taxes, 
$4,406.59.  These  taxes  were  spread  upon 
the  rolls  in  February,  1908.  Plaintiff  claims 
that  it  is  liable  only  for  its  proportion  of 
the  taxes  from  January  1,  1007,  to  April  15, 
1907.  Defendant  claims  that  plaintiff  is 
liable  for  the  taxes  from  July,  1906,  to  April 
15,  1907.  The  drcnlt  Judge  held  in  favor 
of  plaintiff,  and  entered  Judgment  accord- 
ingly. 

Argned  before  BLAIR,  O.  J.,  and  GRANT, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Osbom  &  Mills,  for  appellant.  McPherson, 
Bills  ft  Streeter  (Boudeman,  Adams  &  Wes- 
ton, of  counsel),  for  appellee. 

GRANT,  3.  (after  stating  the  facts  as 
above).  The  statute  (Comp.  Laws,  i  50,  par. 
10)  provides  that  "the  word  'month,'  shall  be 
construed  to  mean  a  calendar  month;  and 
the  word  "year,'  a  calendar  year;  and  the 
word  'year'  alone,  shall  be  equivalent  to  the 
words  'year  of  our  Lord.'"  The  lease  con- 
tains no  language  to  Indicate  that  any  other 
time  than  the  calendar  year  1907  was  in- 
tended. The  learned  counsel  for  defendant 
bases  his  contention  upon  the  language  of 
section  6,  No.  282,  p.  441,  Pub.  Acts  1905, 
providing  for  the  assessment  and  collection 
of  taxes  of  railroad  and  certain  other  cor- 


porations. That  section  reads  as  follows: 
"Sec.  6.  The  several  corporations  enumerated 
In  this  act,  doing  business  In  this  state,  shall 
annually,  between  the  first  day  of  July  and 
the  thirty-first  day  of  August  In  each  year, 
under  oath  of  their  president,  secretary, 
treasurer,  superintendent  or  chief  officer  of 
such  company,  make  and  file  with  the  State 
Board  of  Assessors,  In  such  form  as  said 
board  may  provide,  upon  blanks  to  be  fur- 
nished by  said  board,  a  statement  containing 
the  following  facts,"  etc  It  then  provides 
that  such  statement  by  railroad  companies 
shall  contain  t  description  of  its  real  and 
personal  property,  the  value  thereof,  and  cer- 
tain other  things  unnecessary  to  mention. 
Counsel  insists  that  the  statute  contemplates 
a  fiscal  year  extending  from  July  1st  to  June 
30th.  This  contention  cannot  be  sustained. 
The  sole  purpose  of  this  statement  is  to 
furnish  information  to  the  assessing  ofllcers 
as  a  basis  for  the  assessment  of  the  calendar 
year  In  which  it  is  made.  By  section  13 
of  the  same  act  It  Is  the  duty  of  the  state 
board  of  assessors  not  later  than  the  16th  of . 
January  to  review  the  assessment,  determine 
the  cash  value  of  the  property,  and  correct 
Its  computation  of  the  average  rate  as  there- 
in provided.  By  section  14  It  Is  the  duty  of 
said  board  to  fix  the  amount  of  the  tax  and 
extend  It  upon 'the  assessment  roll,  and  by 
the  same  section  the  taxes  are  made  pay- 
able on  the  first  day  of  April  following.  Our 
entire  tax  law  provides  for  taxes  for  each 
calendar  year.  This  was  true  of  corporations 
when  they  paid  specific  taxes.  By  page  236, 
No.  173,  Pub.  Acts  1901,  these  specific  taxes 
were  abolished,  and  railroad  corporations 
brought  under  the  ad  valorem  system.  Sec- 
tion 17  of  that  act  expressly  provided  that 
the  first  assessment  under  It  should  be  made 
in  1902,  and  that  the  law  as  to  specific  taxes 
should  continue  in  force  for  the  collection  of 
the  specific  taxes  "for  the  year  nineteen  hun- 
dred and  one  and  previous  years."  Section 
6  of  that  act  and  section  6  of  the  act  now 
under  consideration  are  identical  In  lan- 
guage. The  act  of  1901  clearly  did  not  pro- 
vide a  fiscal  year  from  July  1st  to  June  80th. 
It  provided  a  calendar  year  as  determined 
by  the  statute.  It  is  also  significant  that  the 
taxes  for  one  year  are  not  fixed  or  payable 
until  the  first  of  the  following  year. 
The  judgment  is  affirmed. 


DEROSIA  V.  LOREE,  County  Treasurer. 
(Supreme  Court  of  Michigan.    July  15,  1909.)- 

1.  COCWTIKS  (§  57»)  — CODHTT  BOABD  —  ReC- 
OBDS— COLLATEBAI,  Attack. 

The  official  record  of  the  board  of  supei^ 
visors,  which  has  been  properly  signed  by  the 
clerk,  cannot  l>e  shown,  by  parol  evidence  in 
a  collateral  proceeding,  not  to  have  been  signed' 


•Tttr  ether  cases  see  same  topic  and  aecUon  NUMBER  tn  Dee.  *  Am.  Dlgi.  1M7  to  data,  A  Reporter  Indezm 


Digitized  by  VjOOQ  l€ 


358 


122  NORTHWESTERN  REPORTER. 


(Micb. 


bf  the  clerk  within  the  time  prescribed  by  stat- 
ate  for  such  signing. 

[Ed.  Note.— For  other  coses,  see  Counties, 
Cent.  Dig.  i  75;    Dec.  Dig.  i  57.*] 

2.  Counties    (J   57*)— Countt   Boabd— Reo- 

OBDS— GOLLATEBAL  ATTACK. 

A  county  treasurer  refused  to  receive  a 
liquor  dealer's  bond  and  issue  a  receipt,  on  the 
ground  that  the  sale  of  intoxicating  liquors  had 
been  prohibited  by  a  vote  of  the  electors  of 
the  county,  and  thereupon  the  liquor  dealer 
applied  for  a  writ  of  mandamus,  on  the  ground 
that  such  election  was  invalid,  for  the  reason 
that  the  official  record  of  the  proceedings  of 
the  county  board  of  supervisors  at  the  time 
the  election  was  ordered  was  not  signed  by  the 
clerk  within  the  statutory  time.-  Beld,  that  the 
proceeding  was  a  collateral  attack  upon  the  of- 
ficial record  of  the  county  supervisors. 

[Bid.  Note.— For  other  cases,  see  Counties, 
Cent.  Dig.  f  75;    Dec.  Dig.  f  57.»] 

Hooker,  Ostrander,  and  Brooke,  JJ.,  dis- 
senting in  part. 

Certiorari  to  Circuit  Court,  Sanilac  Coun- 
ty;   Watson  Beach,  Judge. 

Mandamus  proceedings  by  Charles  Derosia 
against  Richard  J.  Loree,  Treasurer  of  the 
County  of  Sanilac.  A  ijeremptory  writ  was 
granted,  and  the  respondent  brings  certiorari. 
Hie  order  is  reversed,  and  writ  denied. 

Argued  before  BL.\IR,  C.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDER.  HOOKER, 
MOORE,  McALVAT,  and  BROOKE,  JJ. 

Charles  F.  Gates  (Harrison  Geer,  A.  F. 
Bunting,  William  C.  Manchester,  and  Fred  A. 
Baker,  of  counsel),  for  relator.  Fred  A.  Farr 
and  W.  H.  Burgess  (Wm.  H.  Aitkin  and 
Pliny  W.  Marsh,  of  counsel),  for  respondent 

BLAIR,  C.  J.  On  the  24th  day  of  April. 
1009,  relator  presented  to  respondent  a  liquor 
dealer's  bond  In  proper  form  and  properly 
approved,  tendered  $500  In  money,  and  de- 
manded the  usual  receipt  In  accordance  with 
Act  No.  313,  p.  445,  Pub.  Acts  1887.  Reispond- 
ent  refused  to  receive  the  bond  and  money, 
or  to  give  the  receipt,  upon  the  ground  that 
the  manufacture  and  sale  of  intoxicating  liq- 
uors had  been  prohibited  after  the  1st  day  of 
May,  1909,  by  a  vote  of  the  electors  of  the 
connty  at  the  local  option  election  held  on 
the  first  Monday  In  April,  1909.  Relator  ap- 
plied to  the  drcuit  court  for  Sanilac  coun- 
ty for  a  writ  of  mandamus,  upon  the  ground 
that  such  election  was  Invaiid.  The  petition 
set  forth,  among  other  things,  the  follow- 
ing: "(9)  That  all  the  proceedings  had  be- 
fore said  board  In  relation  to  said-  petition 
as  to  the  submission  of  the  same  to  the 
voters  of  said  county  of  Sanilac,  and  the  or- 
der or  resolution  made  in  pursuance  thereof 
by  said  board,  were  made  upon  said  21st  day 
of  October,  1908,  as  appears  by  the  record 
of  said  board.  (10)  Your  petitioner  further 
shows  that  the  clerk  of  said  board  did  not 
sign  the  Journal  of  the  proceedings  for  said 
21st  day  of  October,  1908,  where  said  reso- 
lution or  order  was  recorded   at  any  time 


before  the  final  adjournment  of  said  board 
of  supervisors,  as  required  by  section  6  of 
said  act,  and  neither  did  he  sign  said  pro- 
ceedings at  any  time  before  the  expiration 
of  his  then  term  of  office,  and  said  proceed- 
ings were  not  signed  by  any  person  acting, 
or  claiming  to  act,  as  clerk  of  said  board  of 
supervisors  during  any  of  the  aforesaid  time. 
(11)  That  said  Journal  containing  said  pro- 
ceedings remained  unsigned  until,  to  wit,  the 
29th  day  of  March,  A.  D.  1909,  at  which  time 
the  said  Fred  J.  Kemp,  who  bad  been  elect- 
ed at  the  regular  election  held  In  said  coun- 
ty in  November,  1908,  to  succeed  himself  as 
such  clerk,  signed  said  proceedings  as  such 
clerk.  *  •  •  (13)  An  examination  of  the 
records  was  made  in  the  office  of  the  county 
clerk  upon,  to  wit,  the  27th  day  of  March,  A. 
D.  1009,  at  which  time  said  records  were 
still  unsigned  by  any  clerk  or  any  person 
purporting  to  act  as  clerk.  •  •  •  (is) 
Your  petitioner  shows  that  by  reason  of  the 
fnilure  of  suld  clerk  to  sign  the  records  of 
the  proceedings  of  said  board  of  supervisors 
betore  the  final  adjournment  of  said  board  of 
suijervisors,  which  occurred  in  the  mouth  of 
December,  1908,  all  the  proceedings  were 
void,  and  said  so-called  local  option  act  is 
not  in  force,  and  will  not  be  in  force  on  the 
1st  day  of  May,  1909,  but  that  Act  No.  313 
of  the  Public  Acts  of  1887  is  in'force  in  said 
county,  and  will  continue  in  force  after  the 
1st  day  of  May,  1909.  (19)  Your  petitioner 
further  shows  that  the  said  Richard  J.  Loree 
has,  and  did  have  at  the  time  of  the  refusal 
to  accept  said  bond  and  money  and  to  issue 
said  receipt,  good  and  reliable  information, 
and  from  such  Information  the  said  Richard 
J.  Loree  had  knowledge  that  the  said  Fred 
J.  Kemp,  as  such  county  clerk,  did  not  sign . 
said  record  of  the  board  of  supervisors, 
whereon  was  recorded  said  proceedings,  in- 
cluding the  order  and  resolution  submitting 
said  question  of  the  voting  upon  said  pro- 
hibition of  the  manufacturing  and  sale  of 
intoxicating  liquors  In  said  county  of  Sanilac 
until  said  29th  day  of  March,  A.  D.  1909." 
Respondent's  answer  contained,  as  to  the  al- 
legation of  the  petition  above  quoted,  the  fol- 
lowing: "Ninth.  This  respondent  admits 
the  allegations  set  forth  in  paragraph  8  of 
said  petition,  but  be  alleges  that  the  proceed- 
ings referrred  to  therein  were  read,  correct- 
ed, and  approved  by  said  board  on  the  22d 
day  of  October,  A.  D.  1908,  as  also  appears 
by  the  records  of  said  proceedings.  Tenth. 
.\nswcrlug  paragraph  10  of  said  petition,  re- 
spondent says  that  he  has  no  personal  knowl- 
edge of  the  facts  alleged  therein ;  and,  while 
he  has  been  Informed  that  they  are  true,  be 
can  neither  admit  nor  deny  them,  and  will 
leave  petitioner  to  bis  proofs.  Eleventh. 
This  respondent  admits  that  Fred  J.  Kemp 
was  elected  county  clerk  of  said  county  at  the 
regular  election  held  in  November,  1908,  to 


<For  other  cases  see  lame  topic  ana  section  NUHBEiR  in  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by 


Google 


Mich.) 


DEROSIA  V.  LOREE, 


339 


sacceed  hlmaelf  as  sach  clerk ;  and,  while  re- 
spondent has  been  Informed  that  the  record 
of  the  proceedings  of  the  board  of  supervisors 
of  said  county  for  the  21st  day  of  October, 
1908,  was  not  signed  by  said  Kemp  until  the 
29th  day  of  March,  1909,  he  has  no  personal 
knowledge  of  that  fact,  and  since  he  has  also 
been  Informed  that  said  Fred  J.  Kemp,  coun- 
ty clerk,  on  the  22d  day  of  December,  1908, 
under  his  official  seal,  certifled  the  said  pro- 
ceedings of  said  board  for  October  21,  1008, 
as  countersigned  by  him,  he  will  neither  ad- 
mit nor  deny  the  date  when  the  said  pro- 
ceedings for  October  21,  1908,  were  signed 
by  said  Kemp,  and  will  leave  petitioner  to 
the  proofs.  »  ♦  •  Thirteenth.  Answering 
paragraph  13  of  said  petition,  this  respondent 
says  that  be  has  been  informed  that  the 
facts  stated  therein  are  true,  but  he  has  no 
Ijersonal  knowledge  thereof,  and  in  answer 
thereto  he  avers  that  the  official  proceedings 
of  said  board  of  superrisors,  copy  of  which 
is  hereto  attached,  marked  'Exhibit  A'  and 
made  a  part  hereof,  shows  the  signatures  of 
both  the  chairman  and  clerk  of  said  board  to 
said  proceedings  for  October  21,  and  also 
October  22.  1908.  •  •  •  Sixteenth.  An- 
swering paragraph  18  of  said  petition,  this 
respondent  denies  the  allegations  contained 
therein,  and  the  conclusions  drawn  there- 
from as  therein  stated.  Seventeenth.  An- 
swering paragraph  19  of  said  petition,  this 
respondent  admits  that  at  the  time  the  peti- 
tioner presented  his  bond  and  the  said  sum  of 
$500,  as  set  forth  In  paragraph  16  of  said 
petition,  he  had  been  informed  that  Fred  J. 
Kemp,  said  county  clerk,  did  not  sign  the 
record  of  the  proceedings  of  the  board  of 
supervisors  of  said  county,  whereon  was  re- 
corded the  order  and  resolution  submitting 
the  question  of  the  prohibition  of  the  manu- 
facture and  sale  of  Intoxicating  liquors  in 
said  county  to  the  vote  of  the  people,  until 
the  29th  day  of  March,  1909,  but  of  these 
facts  this  respondent  had  no  personal  knowl- 
edge." The  matter  coming  on  to  be  heard, 
the  following  occnrred:  "Court:  The  answer 
as  to  the  material  facts  la  principally  upon 
information  and  belief,  and  probably  ought 
not  to  be  treated  as  admitting  away  the 
rights  tliat  the  public  obtained,  if  they  hare 
obtained  them ;  but  It  admits  enough  so  that 
this  court,  as  a  matter  of  right  and  public 
justice,  ought  to  make  an  inquiry  to  ascertain 
if  there  is  an  undisputed  fact.  If  you  have 
any  testimony  to  offer,  you  may  offer  it  Mr. 
(rates:  We  would  ask  to  call  the  present 
acting  clerk,  the  deputy  clerk,  Mr.  Allen.  Mr. 
Burgess:  Does  the  court  propose  to  take 
up  the  question  of  fact  now?  Court:  Not 
conclusively.  I  permit  them  to  supplement 
their  petition  and  the  answer  with  sufficient 
testimony  from  which,  if  uncontradicted,  the 
court  can  determine  whether  there  Is  a  doubt 
and  an  issue  of  fact  to  be  submitted  to  the 
Jury;  that  is,  the  petition  and  answer  leaves 
the  Impression  witb  the  court  that  there  is 


something  about  that  record  that  ought  to  be 
the  subject  of  public  Inquiry."  In  accordance 
with  the  ruling  of  the  circuit  Judge  testi- 
mony was  taken  with  reference  to  the  date 
of  the  clerk's  signature.  This  testimony  was 
objected  to  by  respondent's  counsel,  and  at 
the  close  of  the  testimony  counsel  moved  to 
strike  out  the  testimony  so  far  as  it  tended 
to  change  or  correct  or  Impeach  the  record. 
The  court  overruled  the  motion,  on  the 
ground  that  the  case  of  Auditor  General  v. 
Hill,  97  Mich.  81,  56  N.  W.  219,  authori7.cd 
such  impeachment  as  to  the  signature  of  the 
clerk.  The  court  granted  the  peremptory 
writ,  and  respondent  brings  the  case  before 
us  for  review  by  writ  of  certiorari. 

Section  29  of  the  act  to  define  the  powers 
and  duties  of  the  boards  of  supervisoi's.  etc. 
(Acts  1851,  p.  242,  No.  156),  being  section 
2502,  Comp.  Laws,  provides  as  follows:  "Ev- 
ery order,  resolution  and  determination  of 
such  board  of  supervisors,  made  in  pursu- 
ance of  this  act,  shall  be  recorded  in  the  rec- 
ords of  such  board,  and  signed  by  the  chair- 
man and  clerk  of  such  board."  It  was  held 
in  Pearsall  v.  Supervisors,  71  Mich.  488.  39 
N.  W.  578,  that  this  section  was  mandatory, 
and  that,  in  the  absence  of  such  authenticat- 
ed record,  the  presuuy>tion  that  public  offi- 
cers perform  their  duty  cannot  sustain  the 
action  taken.  In  Weston  v.  Monroe.  84  Mich. 
341,  47  N.  W.>  446.  It  was  held  that  the  fail- 
ure of  the  chairman  to  sign  the  record  of  the 
proceedings  of  the  board  in  equalizing  the  as- 
sessments and  apportioning  the  state  tax  Is 
fatal  to  the  validity  of  a  tax  deed  based 
thereon.  In  Covert  v.  Munson.  93  Mich.  603. 
53  N.  W.  733,  an  application  for  the  writ  of 
mandamus  to  compel  the  county  treasurer 
to  accept  an  approved  bond  and  the  amount 
of  the  tax,  and  give  the  receipt  therefor,  was 
under  consideration.  In  that  case  it  was  con- 
ceded that  the  statute  had  not  been  complied 
with;  that  the  proceedings  of  the  board 
"were  not  even  entered  upon  the  Journal  un- 
til 'perhaps  in  two  or  three  weeks  after  final 
adjournment,'  and  that  the  chairman  of  the 
board  of  supervisors  did  not  sign,  or  pretend 
to  sign,  the  record  until  May  6,  1892,  which 
was  after  the  time  when  the  petitioner  made 
his  demand  on  the  respondent  in  this  case, 
and  after  the  time  when  the  respondent 
claimed  that  the  local  option  law  was  in 
force  In  Gratiot  county  under  and  by  virtue 
of  these  unsigned  and  unverified  proceedings, 
and  at  which  time  also,  as  appears  from  the 
record,  the  chairman  was  out  of  office,  and 
had  no  authority,  under  any  of  the  provisions 
of  this  act,  to  perform  a  duty  which  the  law 
required  him  to  perform  at  the  very  time  the 
proceedings  were  had,  and  before  the  final 
adjournment  of  the  board."  It  was  held,  up- 
on the  basis  of  the  conceded  and  undlspute<l 
facts,  that  the  local  option  law  was  not  op- 
erative in  the  county. 

In  Thomas  v.  Abbott,  105  Mich.  687,  63  N. 
W.  984,  it  was  held  that  it  was  sufficient  if 


Digitized  by  VjOOQ  l€ 


360 


122  NORTHWESTEBN  RBPORTEB. 


(Micb. 


the  journal  entry  of  the  order  was  signed 
below  tbe  record  of  adjonmment  to  the  next 
day.  In  Sbelden  v.  Township  of  Marlon,  101 
Mich.  256,  59  N.  W/  614,  the  validity  of  the 
state  and  county  taxes  was  assailed  for  want 
of  tbe  signature  of  the  clerk  of  the  board  of 
superrisors  to  the  record  of  the  board  In  re- 
lation to  the  equalization  of  the  assessment 
rolls  and  the  apportionment  of  taxes  for  the 
year  In  question.  At  the  trial  tbe  person 
who  had  been  clerk,  and  was  then  deputy 
clerk,  was  permitted  to  sign  tbe  record  nunc 
pro  tunc,  but  later  on  the  trial  court  held 
that  he  had  no  authority  to  make  such 
amendment  Speaking  upon  this  question,  this 
court  said:  "It  is,  we  think,  generally  held 
that  the  clerk  whose  duty  it  Is  to  make  the 
record  may  make  amendments  of  the  same 
while  in  office,  and  when  no  rights  hare  been 
built  up  on  the  faith  of  the  imperfect  record. 
See  1  Dill.  Mun.  Corp.  |i  294,  295;  Beach, 
Pub.  Ctorp.  i  1300.  See,  also,  Boyce  v.  Audi- 
tor General,  90  Mich.  314,  61  N.  B.  457. 
There  Is  respectable  authority  for  holding 
that  tbe  derk  may  make  such  an  amendment 
after  having  retired  from  office  (Olbson  v. 
Bailey,  9  N.  H.  168;  Klley  v.  Cranor,  61  Mo. 
541) ;  and,  where  this  Is  not  permitted,  it  has 
been  held  that  one  who  has  retired  from  of- 
fice, and  has  been  since  re-elected,  and  has 
custody  of  the  record,  may  properly  make  the 
amendment  Welles  v.  Battelle,  11  Mass. 
477;  Mott  V.  Reynolds,  27  Vt  206.  In  the 
present  case  the  amendment  consisted  simply 
In  affixing  the  signature  of  the  clerk.  He 
was  at  the  time  In  the  sworn  custody  of  the 
records  as  deputy  clerk,  and  could  act  with- 
in the  reasoning  and  principle  of  the  cases 
which  permit  a  clerk  on  re-election  to  amend 
a  record  made  up  during  a  former  term.  He 
was  properly  permitted  to  make  the  amend- 
ment. We  do  not  decide  what  would  be  the 
effect  if  a  third  person  had  acquired  rights 
to  the  property  taxed  before  the  attempted 
amendment  But  such  Is  not  the  case  here. 
As  before  stated,  this  Is  an  equitable  action 
for  money  paid,  and  no  hardship  is  done  to 
plaintiff  in  permitting  the  amendment  In 
Boyce  v.  Auditor  General,  supra,  we  held 
that  the  chairman  and  clerk  could,  while  still 
in  office,  affix  their  signatures.  The  case  of 
Auditor  General  v.  HlU,  97  Mich.  80,  56  N. 
W.  219.  Is  cited  as  supporting  the  doctrine 
that  after  having  retired  from  office,  the 
chairman  and  clerk  could  not  properly  affix 
their  signatures  to  the  record.  Such  a  hold- 
ing Is  not  necessarily  in  conflict  with  the 
views  herein  expressed,  but  It  should  per- 
haps be  stated  that  the  point  was  not  argued 
or  considered  In  the  case  of  Auditor  General 
T.  Hill.  On  the  contrary,  as  appears  by  the 
opinion,  it  was  admitted  that  if  the  proceed- 
ings were  not  signed  until  after  the  chairman 
and  clerk  had  retired  from  office,  the  record 
was  void.  The  court  therefore,  determined 
the  case  solely  upon  the  question  of  fact. 
The  case  of  Weston  v.  Monroe,  84  Mich.  342, 


47  N.  W.  440,  was  a  case  In  which  no  attempt 
was  made  to  correct  the  omission,  and  was 
also  a  case  in  which  the  rights  of  third  per- 
sons had  arisen,  which  dlsttngrulshes  it  from 
the  present  The  amendment  here  was  made 
before  the  rights  of  any  third  parties  had 
Intervened,  and  was  made  by  a  lawful  custo- 
dian of  the  record  and  upon  his  own  knowl- 
edge. See,  as  further  bearing  upon  this 
question,  Cooley,  Taxation  (2d  Ed.)  320,  821 ; 
Parish  V.  Golden,  35  N.  Y.  462."  In  the  case 
now  before  us.  It  Is  undisputed  that  the  rec- 
ord was  properly  signed  by  the  chairman,  and 
was  also  signed  by  the  clerk  at  some  time 
during  his  then  or  immediately  succeeding 
term  of  office ;  and,  If  the  rule  of  the  Sbelden 
Case  Is  applicable  to  this  case,  tbe  record 
was  properly  authenticated.  There  Is  much 
force,  however,  In  the  contention  of  counsel 
for  appellee  that  there  is  a  clear  distinction 
between  the  statutes,  which  renders  that 
rule  Inapplicable,  in  that  the  local  option 
statute  limits  the  time  for  signing  the  record 
to  the  time  "before  final  adjournment"  We 
do  not  find  it  necessary,  however,  to  deter- 
mine this  question,  since.  In  our  judgment 
the  case  must  be  determined  against  appellee 
upon  another  point 

The  record  of  the  board  of  supervisors  In 
question  is  fair  upon  Its  face.  The  record 
of  the  board  for  October  21,  1908,  contains 
the  report  of  the  committee  to  whom  the  local 
option  petitions  were  referred;  the  resolu- 
tion submitting  the  question  to  tbe  electors 
and  its  adoption.  Immediately  following  the 
adoption  of  the  report  and  resolution  appears 
the  following:  "Moved  by  Sup.  Bishop,  sec- 
onded by  Sup.  Anslander,  that  we  adjourn 
until  to-morrow  morning  at  8  o'clock.  Mo- 
tion carried  and  board  adjourned.  Read, 
corrected  and  approved,  October  22,  A.  D. 
1908.  Jas.  Curry,  Chairman.  Countersign- 
ed: Fred  J.  Kemp,  Clerk."  In  the  record  of 
the  proceedings  for  Thursday,  October  22, 
1908,  among  other  things,  the  following  ap- 
pears: "Thursday,  October  22,  A.  D.  1908. 
At  a  regular  session  of  the  board  of  super- 
visors of  tbe  county  of  Sanilac,  continued 
and  held  at  the  courthouse,  la  the  city  of 
Sandusky,  on  Thursday,  October  22,  A.  D. 
1908.  Board  called  to  order  by  chairman. 
Roll  called,  quorum  present  Minutes  of  yes- 
terday's proceedings  read  and  approved. 
•  •  •  Moved  by  Sup.  Erwin,  seconded 
by  Sup.  Murphy,  that  we  adjourn  until  to- 
morrow morning  at  eight  o'clock.  Motion 
carried  and  board  adjourned.  Read,  correct* 
ed  and  approved,  Oct.  28,  1908.  Jas.  Curry, 
Chairman.  Countersigned:  Fred  J.  Kemp, 
Clerk."  The  proceedings  of  each  succeeding 
day  of  the  session  are  similarly  authenticated 
up  to  tbe  date  of  final  adjournment  on  De- 
cember 18,  1908.  A  transcript  of  the  record 
as  to  the  proceedings  for  December  18th,  to- 
gether with  the  clerk's  certificate,  were  re- 
ceived In  evidence  against  relator's  objection, 
and  read  as  follows: 


Digitized  by 


Google 


Mich.) 


DEROSIA  T.  LORES. 


361 


"Satorday,  December  18, 1908. 

"At  t  regular  eeaslon  of  the  board  of  ni- 
perrlaors  of  Sanilac  county,  state  of  Michi- 
gan, contlnned  and  held  at  the  courthouse  In 
the  city  of  Sandusky,  on  Saturday  the  18th 
day  of  December,  A.  D.  1908.  Board  called 
to  order  by  the  chairman.  Roll  called,  quo- 
rmn  present  Minutes  of  yesterday's  pro- 
ceedings read  and  approved.  *  •  •  Min- 
utes read  and  approved  in  open  session,  Fri- 
day, December  18,  A.  D.  1908.  Moved  by 
Sup.  Murphy,  seconded  by  Sup.  Beckett, 
that  we  adjourn  sine  die.  Motion  carried, 
and  board  adjourned. 

"Jas.  Curry,  Chairman. 

"Countersigned:    Fred  J.  Kemp,  Clerk. 

"State  of  Michigan,  County  of  Sanilao— as.: 
"I,  Fred  X  Kemp,  derk  of  the  said  county 
of  Sanilac  and  clerk  «f  the  board  of  super- 
visors for  said  county,  do  hereby  certify  that 
I  have  compared  the  foregoing  copy  of  the 
proceedings  of  the  board  of  supervisors  of 
said  county  for  the  year  1908,  with  the  origi- 
nal record  thereof,  now  remaining  in  my 
office,  and  that  It  is  a  true  and  correct  tran- 
script therefrom,  and  of  the  whole  of  such 
original  record.  In  testimony  whereof,  I 
have  hereunto  set  my  hand  and  aflBxed  the 
seal  of  the  circuit  court  of  said  county  this 
22d  day  of  December,  A.  D.  1908. 

"Fred  J.  Kemp,  Clerk." 

Such  being  the  condition  of  the  record,  is 
it  subject  to  collateral  attack  and  Impeach- 
ment by  parol  testimony?  It  is  contended  by 
comiael  for  appellee  that  they  are  not  seek- 
ing to  attack  the  record,  but  leave  it  as  ac- 
tually made.  In  the  language  of  counsel: 
"We  are  not  attempting  to  contradict  the 
record  in  any  respect  We  are  not  seeking 
to  change  one  word  of,  or  to  add  one  word  to, 
the  record.  We  raise  no  question  that  the 
record  of  October  21st  as  produced  is  a  true 
transcript  of  the  proceedings  of  the  board 
for  that  day;  that  the  board  did  on  that 
day  pass  the  resolution  and  order  therein 
recorded.  What  we  claim,  and  all  we  claim, 
is  that  the  record  as  written  up  was  not 
signed  by  the  clerk  within  the  time  prescrib- 
ed by  the  statute;  that  is,  before  the  final 
adjournment  of  the  board."  This  contention 
is  more  specious  than  logical.  The  object  of 
the  authentication  is  to  determine  with  cer- 
tainty what  the  board  actually  did,  and  with- 
out it  the  record  is  a  mere  nullity,  and  no 
evidence  whatever  of  their  action.  We  are 
of  the  opinion,  therefore,  that  the  effect  of 
relator's  proceedings  was  to  attack  the  rec- 
ord, and  seek  to  Impeach  it  in  a  collateral 
matter,  as  against  which  attack  the  record 
Imports  absolute  verity. 

In  Stevenson  v.  Bay  City,  26  Mich.  44,  an 
ofTer  was  made,  and  overruled,  to  show  by 
parol  evidence  that  an  ordinance  was  passed 
by  less  than  a  majority  of  all  the  aldermen, 
and  was  therefore  void.  In  discussing  this 
ruling,  Mr.  Justice  Campbell,  speaking  for 


the  court,  said:  "When  the  law  requires 
municipal  bodies  to  keep  records  of  their  of- 
ficial action  in  the  legislative  business  con- 
ducted at  their  meetings,  the  whole  policy 
of  the  law  would  be  defeated  if  they  could 
rest  partly  In  writing  and  partly  In  parol, 
and  the  true  official  history  of  their  acts 
would  perish  with  the  living  witnesses,  or 
fluctuate  with  their  conflicting  memories. 
No  authority  was  found,  and  we  think  none 
ought  to  be,  which  would  permit  official  rec- 
ords to  be  received  as  either  partial  or  un- 
certain memorials.  That  which  is  not  es- 
tablished by  the  written  records,  fairly  con- 
strued, cannot  be  shown  to  vary  them.  They 
are  intended  to  serve  as  perpetual  evidence, 
and  no  unwritten  proofs  can  have  this  per- 
manence. See  Hail  t.  People,  21  Mich.  456." 
In  Sweet  v.  Gibson,  123  Mich.  699,  83  K.  W. 
407,  one  question  before  the  court  was 
whether  the  filing  date  placed  upon  a  return 
of  the  sheriflf  by  the  clerk  of  the  court  could 
be  contradicted  by  parol  testimony.  In  the 
course  of  the  opinion  it  is  said:  "The  court 
allowed  the  plaintlflT  to  contradict  by  affida- 
vits the  date  of  the  return  of  the  sheriff  and 
the  flliug  made  by  the  county  clerk.  On  one 
side  of  this  issue  is  the  affidavit  of  the  depu- 
ty sheriff  that  he  retained  the  writ  until  Sep- 
tember 2d,  but,  supposing  It  should  have 
been  filed  September  1st  he  requested  the 
clerk  to  file  It  as  of  that  date,  and  it  was  so 
filed.  The  sheriff  also  testified  that  the  writ 
was  In  the  hands  of  his  deputy  on  Septem- 
ber 2d.  On  the  other  hand,  the  return  Is 
dated  by  the  sheriff,  'Sept  1,  1899.'  The  re- 
turn is  Indorsed  with  the  file  mark  of  the 
county  clerk,  'Sept  1,  1899.'  The  county 
clerk  made  an  affidavit  that  the  return  was 
filed  in  his  office  September  1,  1899.  The 
county  derk'B  assistant  made  affidavit  that 
the  file  mark,  'Sept.  1,  1899,'  is  in  her  hand- 
writing, and  that  she  verily  believes  that  the 
return  was  actually  filed  and  indorsed  by 
her  September  1,  1899.  Circuit  court  rule 
No.  38  requires  the  clerk  to  Indorse  on  every 
paper  the  day  on  which  the  same  is  filed. 
As  Is  made  apparent  in  this  case,  it  is  Im- 
portant that  the  evidence  of  when  papers  re- 
lating to  litigation  are  filed  in  the  clerk's  of- 
fice shall  be  of  a  fixed  and  permanent  char- 
acter, and  shall  not  rest  in  the  recollection  of 
interested  parties.  The  filing  placed  upon 
the  papers  by  the  clerk  becomes  part  of  the 
records  of  the  court  and  cannot  be  contra- 
dicted, by  parol.  Stevenson  v.  Bay  City,  26 
Mich.  44;  Mudge  T.  Taples,  S8  Mich.  307,  25 
N.  W.  297;  Weaver  v.  Lammon,  62  Mich.  366, 
28  N.  W.  905 ;  Attorney  General  v.  Rice,  64 
Mich.  385,  31  N.  W.  203 ;  Auditor  General  v. 
Board  of  Supervisors  of  Menominee  Co.,  89 
Mich.  552,  51  N.  W.  483 ;  Toliver  V.  Brown- 
ell,  94  Mich.  677,  54  N.  W.  802;  Holmes  v. 
Cole,  96  Mich.  272,  54  N.  W.  761."  Our  deci- 
sions In  Covert  v.  Munson  and  Auditor  Gen- 
eral V.  Hill,  supra,  are  not  in  conflict  with 
this  opinion.  In  Covert  v.  Munson  the  facts 
were  all  admitted,  and  In  Auditor  General  v. 


Digitized  by  VjOOQ  l€ 


362 


122  XOHTIIWESTERN  REPORTER. 


(Mich. 


Hill,  the  question  does  not  appear  to  have 
been  presented,  and  the  case  was  heard  on 
nppeal  from  the  decree  rendered  in  the  tax 
proceedings.  In  Ball  v.  Fogg,  67  Mo.  481, 
plaintiff  offered  parol  evidence  to  prove  that 
a  certain  ordinance  was  neither  approved 
by  the  mayor,  nor  attested  by  the  clerk,  un- 
til a  month  later  than  the  date  It  purported 
to  have  been  approved.  The  trial  court  re- 
jected the  proof,  and  the  ruling  was  sustain- 
ed by  the  Supreme  Court.  To  the  same  ef- 
fect see  State  v.  Main,  69  Conn.  123,  139,  37 
Ati.  80,  36  L.  R.  A.  623,  61  Am.  St  Rep.  30; 
Weir  V.  State  ex  rel.,  etc.,  96  Ind.  311,  316; 
Street  R.  R.  Co.  v.  Morrison,  etc.,  Co.,  160  111. 
288,  43  X.  B.  393;  Walker  v.  Smith,  50  Ga. 
487;  Bennett  v.  Tiemay,  1  Ky.  Law  Rep. 
312.  We  do  not  Intend  to  intimate  that  di- 
rect proceedings  may  not  be  instituted  In  be- 
half of  the  public  to  correct  the  records  in 
question. 

In  view  of  the  importance  to  the  public  of 
the  questions  Involved,  we  have  felt  it  to  be 
our  duty  to  determine  them  (although  the 
petition  for  the  writ  of  certiorari  does  not 
contain,  nor  is  it  accompanied  by,  assign- 
ments of  error),  following  the  course  we 
have  occasionally  adopted  heretofore.  Thom- 
as V.  Abbott,  105  Mich.  687,  63  N.  W.  984; 
IjCwIs  V.  Board  of  Education,  139  Mich.  306, 
102  N.  W.  756. 

The  order  of  the  circuit  Judge  Is  reversed, 
and  the  virrlt  denied,  but  without  costs  to 
cither  party. 

GRANT,  MOORE,  and  McALVAY,  JJ., 
concurred  with  BLAIR,  C.  J.    HOOKER,  J., 

concurred  in  the  result. 

OSTRANDEB,  J.  (concurring).  I  concur 
in  reversing  the  order  and  determination  of 
the  circuit  court,  and  In  denying  to  relator 
the  writ  of  mandamus.  At  the  time  relator 
tendered  his  money  and  bond  to  the  respond- 
ent and  demanded  his  license,  an  election  had 
1)een  held  in  Sanilac  county,  the  votes  had 
been  canvassed  and  the  supervisors  had  made 
the  determination,  declaration,  and  resolu- 
tion required  by  section  13,  Act  No.  183,  p. 
278,  Pub.  Acts  1899.  By  section  14  of  this 
act  It  is  provided  that  "the  regularity  of  any 
proceedings  prior  to  the  adoption  of  such  res- 
olution by  the  board  of  supervisors  shall  not 
lie  open  to  question  on  the  examination  or 
trial  of  any  person  for  the  violation  of  any 
of  the  provisions  of  section  one  of  this  act." 
.'Section  1  of  the  act  makes  It  unlawful  for 
iiuy  person,  directly  or  indirectly,  to  manu- 
facture, sell,  give  away,  or  furnish  any  liq- 
uors, or  keep  a  saloon  on  and  after  May  1st 
next  following  after  the  adoption  by  the 
board  of  supervisors  of  the  county  of  a  reso- 
lution prohibiting  the  same  as  provided  In 
section  13.  Section  2  of  the  act  provides  that 
after  said  May  1st,  and  after  the  adoption 
of  said  resolution,  the  provisions  of  the  gen- 


eral Uqoor  law  shall  be  suspended  and  super- 
seded in  the  county.  It  Is  evident  that  the 
Legislature  did  not  intend  that  Interested 
persons  might  lie  still  until  after  an  election 
had  been  held  and  the  results  thereof  had 
been  declared,  and  then  avoid  that  result  in  a 
proceeding  between  parties  neither  of  whom 
owed  any  duty,  public  or  private,  except  to 
obey  the  law.  So  long  as  the  law  stood,  the 
respondent  owed  no  duty  to  any  person  un- 
der the  suspended  and  superseded  law.  Sup- 
pose that  the  respondent,  instead  of  refusing, 
had  accepted  relator's  money  and  bond,  and 
had  Issued  to  him  the  red  card — had  done 
Just  what  it  is  sought  in  this  proceeding  to 
compel  him  to  do.  In  a  prosecution  for  vio- 
lation of  the  local  option  law  relator  would 
not  be  permitted  to  show  in  his  defense  the 
matters  now  presented  as  a  reason  for  com- 
pelling respondent's  action.  The  fact  that  ho 
had  paid  the  tax  and  had  possession  of  the 
card  would  be  no  protection.  It  is  clear, 
therefore,  that  until  In  some  proceeding 
brought  for  that  purpose  the  general  law  is 
declared  to  be  operative  and  not  superseded 
In  Sanilac  county,  notwithstanding  the  pro- 
ceedings and  the  election  which  have  been 
had,  respondent  does  not  owe  relator  the  le- 
gal duty  to  comply  with  his  request 

BROOKE,   J.,   concurred   with    OSTllAN- 
DER,  J. 


ROBERGE  V.  DE  LISLE  et  al. 
(Supreme  Court  of  Michigan.     July  15,  1900.) 

1.  Appeal  and  Ebror  (|  837*)— Review- 
Scope —  Mattebs  Considebed  —  Stenoora- 
fheb'8  Tbanscript. 

Where  an  order  denying  defendant's  appli- 
cation for  leave  to  file  a  bUl  of  review  and  a 
petition  for  mandamus  were  not  based  on  the 
stenographer's  transcript  in  a  suit  in  equity, 
such  transcript  could  not  be  considered  on  ap- 
peal from  an  order  denying  such  leave,  and 
on  the  petition  for  mandamus. 

[Ed.  Note.— Per  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  f  837.»] 

2.  Appkai.  and  Ebbob  (§  983*)— Discretion 
OF  Tbiai.  Coubt— Leave  to  File  Bill  of 
Review. 

An  application  for  leave  to  file  a  bill  of  re- 
view is  largely  discretionary,  so  that  the  trial 
court's  action  thereon  will  not  be  overruled  in 
the  absence  of  abuse. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Dec  Dig.  {  983.*] 

3.  EqciTT  (J  447*)  —  Bill  of  Review  — 
Grounds— Newly  Discovered  Evidence. 

Alleged  newly  discovered  evidence  was  not 
ground  for  a  bill  of  review,  where  the  evidence 
might  have  been  discovered  in  time  to  have 
been  presented  by  the  exercise  of  reasonable 
diligence. 

[Ed.  Notp.— For  other  cases,  see  Equity,  Cent 
Dig.  S§  1091-1004;    Dec.  Dig.  {  447.»] 

4.  EQtJiTr  (5  442*)- Bill  of  Review— Dis- 
cretion OF  Court. 

It  is  no  abuse  of  discretion  to  deny  an 
application  to  file  a  bill  of  review,  where  it  is 


•For  otli«r  cases  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  UOT  to  date,  A  Reporter  Index?!, 


Digitized  by 


Google 


Mich.) 


ROBERGE  V.  DE  LISLE. 


3G3 


sought  to  Qse  sach  bill  u  a  mbstltnte  for  an 
nppeaL 

[Ed.  Note.— For  other  cases,  gee  Eqnitr,  Dec. 
l>f«.  I  442.*] 

5.   Afpkal    and    Ebbob    (§    357*)— TiMB    to 
Appkai/—I:zten8io»— Default  of   Solici- 

TOB8. 

Where  defendant  had  her  day  in  conrt,  and 
the  circuit  Jud^e  found  that  the  case  was  care- 
fully and  ably  tried  and  fully  presented  by  de- 
fendant's counsel,  and  that  justice  did  not  re- 
quire a  revision  of  the  case,  the  equities  being 
vrith  complainant,  it  was  not  an  abuse  of 
diacretion  to  refuse  to  extend  defendant's  time 
t*  appeal,  which  defendant's  former  solicitors 
had  negligently  permitted  to  elapse  without  tak- 
ing the  appeal. 

(E^  Note.— For  other  cases,  see  Appeal  and 
Error.  Dec  Dig.  |  857.*] 

Appeal  from  Circuit  Court,  Wayne  County, 
In  chancery;   Joseph  W.  Donovan,  Judge. 

Snit  by  Josephine  Roberge,  as  administra- 
trix,  etc.,  against  Rose  Delema  De  Lisle  and 
another.  From  an  order  denylnR  defendants' 
npplicatlon  for  leave  to  file  a  bill  of  review, 
they  appeal,  and  also  apply  for  mandamus  to 
require  the  circuit  Judge  to  vacate  an  order 
denying  the  petition  of  defendant  Rose  De- 
lema De  Lisle  for  an  extension  of  time  in 
which  to  settle  the  testimony  and  complete 
her  appeal.    Affirmed. 

.\rKned  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  McALVAT,  and  BROOKE, 
JJ. 

James  F.  Hill  (Ward  N.  Choate,  of  coun- 
sel), for  appellants.  Dwyer  &  Dwyer  (Hunt 
&  Altland,  of  counsel),  for  appellee. 

BLAIR.  C  J.  This  case  inrolres.  first,  an 
iippeal  from  the  order  of  the  Wayne  circuit 
•-ourt.  In  chancery,  denying  defendants'  ap- 
plication for  leave  to  file  a  bill  of  review; 
second,  a  petition  for  the  writ  of  mandamus 
to  require  the  circuit  Judge  to  vacate  his  or- 
der denying  the  petition  of  defendant  Rose 
De  Lisle  for  an  extension  of  the  time  in 
which  to  settle  the  testimony  and  complete 
!!er  appeal.  The  bill  of  compiaint  sets  up 
that,  by  the  fraud  and  nndne  Influence  of 
■  defendants,  their  mother.  Rose  Bousqnet.  was 
:Ddnced  to  sell  her  real  property  for  $2,600, 
deposit  the  same  in  bank  in  the  name  of  de- 
fendant Rose  D.  De  Lisle,  and  that  the  said 
Rose,  wttbont  the  knowledge  or  consent  of 
b^  mother,  withdrew  the  money  from  the 
l>anlc  and  invested  It  in  real  estate,  the  title 
to  which  she  took  in  her  own  name.  The  bill 
l>rayB,  among  other  things,  for  an  account- 
ing, and  that  the  defendants  be  decreed  to 
pay  to  complainant  whatever  may  be  fonnd 
•Ine  to  be  distributed  among  the  heirs  of  Rose 
lioosqnet.  The  case  was  heard  npon  plead- 
ings and  proofs  in  open  conrt  and  decree  was 
"utered  In  favor  of  complainant.  September 
I'i,  190S.  Defendants  were  represented  by 
Miner  k  Anbut  as  their  solicitors  until  the 
:  resent  solicitors  were  substituted  in  Febru- 
ary, UJ09.    On  December  10,  190S,  a  prajclpe 


for  enrollment  of  the  decree  was  filed,  and  on 
December  11,  1008,  the  decree  was  enroll- 
ed, a  prteclpe  for  fieri  facias  was  filed,  and 
execution  Issued. 

The  first  petition  for  an  extension  of  time 
was  filed  February  23,  1009,  and  alleges  as 
follows:  "Petitioner  further  shows  that, 
since  the  trial  of  this  cause,  her  couupel, 
Messrs.  Miner  Ic  Anhut,  have  led  petitioner 
to  believe  that  petitioner  had  a  meritorious 
cause,  and  that  the  same  should  be  appealed 
to  the  Supreme  Court,  and  that  they  were 
working  npon  the  appeal,  and  that  there  was 
still  plenty  of  time  in  which  to  complete  said 
appeal ;  that  in  pursuance  with  such  advice 
she  has  gone  to  great  expense  towards  mak- 
ing such  appeal,  obtaining,  and  paying  for 
the  300-page  transcript  of  the  stenographer's 
notes,  besides  other  Tarlous  expenses  there- 
to. Petitioner  further  shows  that,  on  becom- 
ing dissatisfied  with  her  cormsel,  the  said 
Messrs.  Miner  &  Anhut,  she,  on  the  1st  day 
of  February,  1000,  paid  them  in  full  for  their 
services,  obtaining  a  substitution  of  solici- 
tors; that  they,  at  this  time,  still  claimed 
that  there  was  yet  time  in  which  to  appeal. 
Petitioner  further  shows  that,  on  immediate- 
ly taking  the  case  to  her  present  counsel,  she 
la  by  hinr  Informed  that  the  time  for  appeal 
expired  on  the  26th  day  of  October,  1008. 
Petitioner  further  shows  that  she  is  also  in- 
formed by  her  present  counsel  that  she  has  a 
Just  and  meritorious  cause  that  should  be  ap- 
pealed. It  is  further  shown  that  the  decree 
In  this  canse  is  a  lien  npon  certain  real  es- 
tate, so  that  no  harm  can  befall  the  complain- 
ant while  the  appeal  Is  being  taken.  Your 
petitioner,  believing  that  this  honorable  court 
will  not  permit  a  litigant  to  be  imjnstly  de- 
prived of  a  right  to  appeal  through  the  fault 
of  her  connsel,  therefore  prays  that  she  be 
granted  a  reasonable  time  in  which  to  per- 
fect her  appeal  in  this  matter."  Affidavits 
were  filed  in  support  of  and  against  the  peti- 
tion. The  petition  was  denied.  On  March 
18, 1009,  "to  eliminate  any  possible  question" 
as  to  the  filing  of  a  certain  affidavit  of  Feb- 
ruary 23d,  which  was  objected  to  by  com- 
plainant's solicitors,  defendant  Rose  De  Lisle 
filed  a  second  petition  for  an  extension  of 
time,  and  on  the  same  day  the  petition  for 
leave  to  file  the  bill  of  review  was  filed.  The 
petition  for  leave  to  file  a  bill  of  review  was 
denied  for  the  following,  among  other,  rea- 
sons: "(1)  That  the  original  cause  was  care- 
fully and  ably  tried  and  fnlly  presented  by 
counsel  for  petitioner  upon  the  hearing  of 
the  same;  (!9  that  the  opinion,  decision,  and 
the  decree  based  thereon  were  in  accordance 
with  the  testimony  produced  at  the  bearing ; 

(6)  tliat  it  does  not  appear  to  the  court  herein 
that  Justice  requires  a  revision  of  the  case; 

(7)  that  there  is  no  error  of  law  appearing 
on  the  face  of  the  decree  for  which  a  bill  of 
review  should  be  allowed  to  be  filed;    (8) 


•Ter  Mber  eaam  m«  same  topic  and  (ectlon  NUMBER  In  Dee.  ft  Am.  Die*.  UOI  to  date,  ft  Reporter  IndcxM 


Digitized  by 


Google 


364 


122  NORTHWESTERN  REPORTER. 


(Micb. 


that  the  aUeged  new  facts,  claimed  to  have 
been  discovered  fdnce  the  decree  was  entered 
in  this  cause,  are  not  anfficlently  material  to 
Invoke  the  discretion  of  this  court  to  reopen 
the  case  and  permit  the  filing  of  a  bill  of  re- 
view therein ;  (9)  that  It  does  not  appear  to 
the  court  that  It  was  Impossible  tor  the  said 
petitioner  to  produce  the  alleged  new  facts 
at  the  time  the  decree  was  rendered  in  this 
cause ;  (10)  that  the  alleged  newly  discovered 
evidence  was,  or  might  have  been  by  reason- 
able diligence,  known  to  petitioner  and  her 
counsel  at  the  time  of  the  hearing  of  the  orig- 
inal bill ;  (11)  that  the  petition  for  leave  to 
file  a  bill  of  review,  is  being  used  as  a  sub- 
stitute for  an  appeal  in  this  cause."  The  sec- 
ond petition  for  extension  of  time  was  denied 
for  the  reasons,  among  others,  following: 
"(4)  That  the  original  cause  was  carefully 
and  ably  tried  and  fully  presented  by  counsel 
for  petitioner  upon  the  hearing  of  the  cause; 
(5)  that  the  opinion,  decision,  and  the  decree 
based  thereon  were  in  accordance  with  the 
testimony  produced  at  the  hearing ;  (6)  that 
the  showing  made  by  petitioner  in  the  appli- 
cation herein  is  InsuflBcient  in  matter  and 
form  to  warrant  this  court  in  granting  the 
order  asked  for;  (7)  that  it  does  not  appear 
to  the  court  herein  that  Justice  required  a 
revision  of  the  case ;  (8)  that  the  equities  In 
the  matter  herein  are  with  the  complainant, 
and  not  with  the  defendant  petitioner  herein, 
and  that  the  discretion  of  this  court  In  the 
matter  of  this  application,  under  all  the  facts 
and  circumstances  herein,  ought  to  be  exer- 
cised in  favor  of  the  complainant  and  against 
thi!  defendant." 

Counsel  for  appellant  and  relator  presented 
for  our  examination  upon  the  oral  argument, 
and  comment  In  their  briefs  upon,  testimony 
and  rulings  of  the  court  as  shown  by  the 
stenographer's  transcript  The  petitions 
were  not  based  upon  such  transcript,  and  we, 
therefore,  cannot  consider  it  The  power  of 
the  court  In  granting  or  denying  an  applica- 
tion for  leave  to  file  a  bill  of  review  Is  large- 
ly discretionary,  and  his  determination  ought 
only  to  be  overruled  where  such  discretion 
has  been  abused.  Stockley  v.  Stockley,  93 
Micb.  307,  53  N.  W.  528.  The  substantial 
basis  for  the  application  for  leave  to  file  the 
bill  of  review  Is  newly  discovered  evidence, 
and  we  are  satisfied  from  the  affidavits  with 
the  correctness  of  the  court's  determination 
that  the  alleged  newly  discovered  evidence 
might  have  been  discovered  by  the  use  of  rea- 
sonable diligence.  We  also  agree  with  the 
finding  "tliat  the  petition  for  leave  to  file  a 
bill  of  review  is  being  used  as  a  substitute 
for  an  appeal  in  this  cause."  It  was  said  in 
Simmons  v.  Conklln,  129  Mich.  190,  88  N.  W. 
625:  "It  is  unfortunate  that  a  party  should 
lose  his  opportunity  to  appeal  without  his 
own  fault  but  we  cannot  relieve,  in  such  a 
case  as  this,  without  practically  nullifying 
the  statute.    While,  as  shown  in  Barnes  v. 


Kent  Clrcolt  Judge,  97  Mich.  212  OiO  N.  W. 
599),  this  petition  was  seasonably  made,  it !» 
apparent  that  it  Is  being  used  as  a  substitute 
for  an  appeal,  and  it  cannot  be  granted  upon 
such  a  ground.  The  court  ,will  be  slow  to 
grant  a  petition  for  leave  to  file  a  bill  of  re- 
view in  a  case  wliere  the  time  for  taking  an 
appeal  has  been  allowed  to  pass  before  filing 
It"  We  think  there  was  no  abuse  of  discre- 
tion in  this  matter. 

The  principal  ground  for  the  petition  for 
an  extension  of  time  to  appeal  is  the  negli- 
gence or  default  of  defendants'  solicitors  in 
not  taking  the  appeal.  While  we  might  not 
have  been  disposed  to  question  the  exercise 
of  his  discretion  if  the  circuit  Judge  had  grant- 
ed this  petition  on  the  ground  that  defend- 
ant had  been  deprived  of  her  appeal  because 
of  the  default  of  her  solicitors,  and  without 
fault  on  her  part  (see  Merriman  v.  Circuit 
Judge,  96  Mich.  603,  55  N.  W.  1021),  it  does 
not  follow  that  the  court  abused  its  discre- 
tion in  denying  the  application.  Defendant 
has  had  her  day  in  court  The  drcnlt  Judge 
finds  that  the  case  "was  carefully  and  ably 
tried  and  fully  presented  by  counsel  for  pe- 
titioner," that  Justice  does  not  require  a  re- 
vision of  the  case,  and  that  the  equities  are 
with  the  complainant,  and  not  wfth  the  de- 
fendants. Mrs.  Bousquet  left  besides  Mrs. 
Roberge  and  Mrs.  De  Lisle,  four  other  adult 
children,  who,  under  the  decree,  will  share 
alike  in  the  small  estate,  which  Is  likely  to  be 
dissipated  If  this  litigation  continues.  The 
application  for  an  extension  of  time  is  ad- 
dressed to  the  sound  discretion  of  the  court, 
and  we  are  unable  to  find  any  abuse  of  such 
discretion.  By.  Co.  v.  Branch  Circuit  Judge, 
116  Mich.  399.  74  N.  W.  529 ;  Carrier  v.  Em- 
mett  Circuit  Judge  (Mich.)  119  N.  W.  575. 

The  orders  of  the  circuit  court  are  affirmed. 


SKDTT  V.  IONIA  CIRCUIT  JUDGE. 
(Supreme  Court  of  Michigan.     July  15^  1909.) 
iNJUNcnow  (§  148»)— Temporary  iNJUKcnoN 

—Conditions  Pbecedentv-Bonds. 

Comp.  Laws,  §  507,  pTovidiug  that  no  in- 
junction to  stay  a  proceeding  at  law,  "in  any 
action  for  the  recovery  of  lands,  or  the  posses- 
sion thereof,  after  verdict,"  shall  issue,  unless 
the  party  applying  shall  execute  a  bond,  does 
not  req^uire  a  bond  prior  to  the  issuance  of  an 
injunction  to  enjoin  an  action  at  law  to  re* 
cover  lands  before  verdict. 

[Ed.  Note. — For  other  cases,  see  Injunction, 
Cent  Dig.  g§  323-334;    Dec  Dig.  |  148.*] 

Mandamus  by  Henry  Skutt  against  the 
Ionia  Circuit  Judge  to  compel  respondent  to 
dissolve  the  temporary  injunction.    Denied. 

Relator  became  the  purchaser  at  foreclo- 
sure sale  of  certain  lands  the  title  tb  which, 
when  the  mortgage  was  given  November  1, 
1880,  was  in  Jude  B.  Spencer.  After  the 
mortgage  was  given,  Mr.  Spencer  and  his 
wife  conveyed  the  title  to  a  third  party, 
who  reconveyed  the  same  to  Mr.  and  Mrs. 


•For  otUer  cases  im  sam*  topic  and  section  NUKBBR  in  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Mich.) 


BERNSTIEK  v.  THAYER. 


365 


Spencer  and  their  son,  Charles,  as  Joint  own- 
ers of  the  entirety,  with  full  rights  of  siir- 
Tlrorahlp.  The  mortgage  which  was  execut- 
ed by  Mr.  and  Mrs.  Spencer  was  foreclosed 
by  advertisement,  and  the  proceedings  are 
conceded  to  be  regular.  Mr.  Jade  R.  Spencer 
bad  died  before  the  foreclosure  proceedings. 
The  time  of  redemption  having  expired,  the 
sberUF's  deed  given  upon  the  sale  became 
absolute  September  30,  1908.  Relator  de- 
manded possession  of  the  premises,  which 
was  refused.  On  February  8,  1009,  be  com- 
menced summary  proceedings  to  recover  pos- 
session of  the  premises  before  a  circuit  court 
commissioner,  making  the  widow  and  the 
«on,  Charles,  defendants.  On  the  return  day 
the  case  was  adjourned  by  consent  to  Feb- 
ruary 23,  1909.  On  February  17th  of  the 
«ame  month  the  defendants  Sarah  and 
-Charles  filed  a  bill  in  chancery,  making  re- 
lator party  defendant  thereto,  asking  that 
the  foreclosure  sale  be  set  aside,  and  that 
they  be  allowed  to  redeem  from  the  mort- 
gage, and  that  the  suit  at  law  be  enjoined. 
The  court  granted  an  Injunction,  without  re- 
quiring a  bond  to  cover  damages  and  costs  in 
case  the  final  decision  should  be  against 
them.  The  relator  answered,  denying  all  the 
material  allegations  in  the  bill.  The  sole 
defect  In  the  foreclosure  proceedings  relied 
upon  in  the  bill  is  that  the  land,  which  con- 
stituted three  parcels,  was  sold  in  one  body, 
and  not  In  three  parcels.  The  Claim  of  the 
relator  is  that  the  land  constituted  one 
small  farm,  and  that  the  sale  as  one  parcel 
was  legal.  Relator  moved  to  dissolve  the 
Injunction  because  no  bond  was  given,  as 
-w^aa  required  by  the  statute.  This  motion 
was  denied.  Relator  then  made  a  motion 
to  set  aside  the  order  denying  the  first  mo- 
tion, which  was  likewise  denied.  Relator 
now  asks  the  writ  of  mandamus  to  compel 
the  respondent  to  vacate  said  order,  and  to 
dissolve  the  injunction. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Smedley  &  Corwln,  for  relator.  R.  A. 
Hawley,  for  respondent 

GRANT,  J.  (after  stating  the  facts  as 
above).  The  statute  controlling  the  issuing 
of  injunctions  to  stay  suits  at  law  Is  section 
507,  Comp.  Laws,  and  reads  as  follows:  "No 
injunction  shall  issue  to  stay  proceedings  at 
law,  in  any  action  for  the  recovery  of  lands, 
or  the  possession  thereof,  after  verdict,  un- 
less the  party  applying  therefor  shall  ex- 
ecute a  bond,  with  one  or  more  sureties,  to 
the  plaintiff  in  such  action  at  law.  In  such 
sum  as  the  circuit  Judge  or  officer  allowing 
the  injunction  shall  direct,  conditioned  for 
the  payment  to  the  plaintiff  In  such  action, 
and  his  legal  representatives,  of  all  such 
damages  and  costs  as  may  be  awarded  to 
them,  in  case  of  a  decision  against  the  par- 
ty obtaining  such  Injunction."    The  respond- 


mt  contends  that  this  statute  does  not  re- 
quire a  bond  prior  to  the  issuing  of  an  in- 
junction to  enjoin  suits  at  law  before  ver- 
dict Wiere  it  not  for  the  decision  of  Jen- 
ness  ▼.  Smith,  58  Mich.  280,  25  N.  W.  d»l. 
wherein  the  court  said:  "We  are  not  inform- 
ed by  the  printed  record  what  steps  were 
taken  to  give  the  security,  without  which 
proceedings  at  law  cannot  be  enjoined.  The 
statute  is  imperative" — ^we  should  not  hesi- 
tate to  construe  the  statute  as  applicable 
only  to  a  case  where  a  verdict  had  been  ren- 
dered. An  examination  of  the  briefs  in 
that  case  shows  that  the  point  was  not  rais- 
ed, and  that  the  case  was  decided  upon  other 
points.  We  must  therefore  hold  that  it  was 
dictum.  The  punctuation  in  the  statute, 
which  places  a  comma  after  "lands,"  and  an- 
other after  "thereof,"  clearly  indicates  that 
the  words  "after  verdict"  apply  to  both  ac- 
tions for  recovery  of  lands,  and  to  actions 
for  the  possession  thereof.  There  is  no  good 
reason  for  supposing  that  the  Legislature 
did  not  intend  to  apply  the  words  "after 
verdict"  to  both  actions.  Neither  is  there 
any  good  reason  for  providing  that  it  should 
apply  to  one  case  and  not  to  the  other.  We 
are  therefore  constrained  to  hold  that  the 
statute  does  not  apply  to  suits  for  recovery 
of  land  before  verdict 
The  writ  must  therefore  be  denied. 


BBRNSTIEN  v.  THAYER. 
(Supreme  Court  of  Michigan.    July  15,  1909.) 

1.  Justices  of  the  Peace  d  205*)— Cebtioba- 
Bi— Review— Recobd. 

On  writ  of  error  to  review  proceedings  In 
the  circuit  court  on  certiorari  to  a  justice  of 
the  peace,  where  the  justice  by  order  of  the 
court  had  made  a  further  return  to  the  writ,  a 
paper  in  the  record  entitled  with  the  names  of 
the  parties,  stating  that  there  was  a  mistake  in 
the  amended  return,  assuming  to  state  wherein 
the  docket  as  returned  and  certified  to  by  the 
justice  in  his  amended  return  was  inaccurate, 
and  attempting  an  explanation  of  how  the  in- 
accuracy occurred,  being  inconsistent  with  the 
amended  return,  is  not  a  modification  thereof; 
it  being  a  mere  fugitive  paper  not  entitled  to 
otttwdgb  the  official  return. 

[Ed.  Note.— For  other  cases,  see  Justices  of 
the  Peace,  Dec.  Dig.  {  205.*] 

2.  Justices  op  the  Peace  (§  107*)— Pbocb- 
DUBE— Ibbegulab  Adjoubnmeni^waiveb. 

Any  irregularity  of  an  adjournment  by  a 
justice  was  waived  by  defendant^  where,  after 
objecting  thereto,  he  stated  that,  if  an  adjourn- 
ment was  to  be  had,  a  certain  date  would  be 
satisfactory,  and,  adjournment  being  had  to  that 
date,  thereupon  demanded  security  for  costs. 

[Ed.  Note. — For  other  cases,  see  Justices  of 
the  Peace,  Cent  Dig.  i  361 ;   Dec  Dig.  {  107.*] 

3.  Justices  of  the  Peace  (§  107*)— Pboce- 
dube  —  Adjoubnuent  —  Designation  of 
Houa— Sufficiency. 

An  adjournment  by  a  justice  until  2  o'clock 
of  a  certain  day,  sufficiently  showed  that  2 
o'clock  p.  m.  was  meant. 

[Ed.  Note.— For  other  cases,  see  Justices  of 
the  Peace,  Dec.  Dig.  f  107.*] 


-•Fox  otlier  cases  ■«•  sam*  topic  and  section  NUMBSR  in  Dee.  *  Am.  Diss.  1307  to  date,  *  Reporter  IndezM 


Digitized  by  VjOOQ  l€ 


366 


122  NOttXHWESXEIlX  nEPOUTEn. 


(Mlcb. 


Error  to  Circuit  Court,  Kalkaska  County; 
Clyde  C.  Chittenden,  Judge. 

Action  by  Babetta  Bernetien  against  Frank 
Thayer.  From  a  judgment  for  defendant  re- 
versing a  Justice's  Judgment  on  certiorari, 
plaintiff  brings  error.    Reversed. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  McALVAY,  and  BROOKE, 
JJ. 

E.  F.  Sawyer,  for  appellant  Wlthey  & 
Wlthey,  for  appellee. 

MONTGOMERY,  J.  Plaintiff  brought  suit 
in  Justice's  court  before  John  R.  Hudson, 
Justice  of  the  peace,  and  obtained  a  Judg- 
ment in  the  sum  of  $211.50  and  costs.  The 
defendant  thereupon  sued  out  a  writ  of  cer- 
tiorari to  review  the  action  of  the  Justice, 
alleging  numerous  errors.  A  return  was 
made  to  this  writ,  and.  It  being  deemed  un- 
satisfactory to  counsel,  a  further  return  was 
ordered  by  th4  circuit  Judge  requiring  him 
to  make  a  complete  transcript  of  the  docket 
and  of  the  whole  thereof,  and  of  all  the 
entries  therein  made  relative  to  this  cause, 
with  a  certificate  as  to  the  truth  or  falsity 
of  such  entry.  Such  amended  return  was 
made  on  the  lltb  of  April,  1908.  Just  when 
the  case  was  noticed  for  hearing  does  not 
appear;  but,  from  statements  is  the  briefs 
of  counsel  of  both  sides,  the  inference  is 
that  it  was  noticed  for  bearing  for  the  Sep- 
tember term,  190S.  There  appears  In  the 
record  a  paper  entitled  with  the  names  of 
the  parties  to  the  case,  stating  that  there 
was  a  mistake  In  the  amended  return,  and 
assuming  to  state  wherein  the  docket  as  re- 
turned and  certified  to  by  the  Justice  in  his 
amended  return  Is  inaccurate,  and  attempt- 
ing an  explanation  of  how  the  Inaccuracy  oc- 
ciu-red.  This  Is  dated  on  the  21st  day  of 
September.  On  the  2d  of  November,  1908, 
Judgment  was  entered  reversing  the  Judg- 
ment of  the  Justice.  The  plaintiff  thereupon 
removed  the  case  to  this  court  by  writ  of 
error. 

The  question  is  presented  whether  we  can 
consider  this  paper  as  a  modification  of  the 
return  made  upon  the  order  of  the  court.  It 
should  be  stated  that  the  paper  Is  not  mere- 
ly supplemental,  but  is  contradictory  of  the 
return  made  by  the  justice  in  response  to 
the  order  of  the  court.  We  think  this  must 
Ije  treated  as  a  mere  fugitive  paper,  and  not 
entitled  to  outweigh  the  ofllcial  return  made 
by  direction  of  the  court.  Upon  the  applica- 
tion for  filing  such  an  amended  return,  the 
attorney  for  the  plaintiff  in  certiorari  was 
entitled  to  notice.  It  would  have  been  with- 
in the  power  of  the  circuit  Judge  to  have  re- 
quired some  evidence  as  to  the  truth  of  the 
statements  contained  In  this  paper  before 
permitting  It  to  be  filed  as  an  amendment 
10  the  return.  A  similar  question  was  raised 
in  Powers  v.  Russell,  26  Mich.  179,  where  a 
paper  signed  by  the  Justice,  not  purporting  to 
lie  a  part  of  the  return  to  the  writ,  and  not 
dated,  and  not  made  in  obedience  to  any 


order  for  further  return,  and  being  incon- 
sistent and  contradictory  of  the  return  itself, 
was  rejected  as  no  part  of  the  record.  This 
ruling  was  followed  in  Hewitt  v.  Judge  of 
Probate,  67  Mich.  1,  34  N.  W.  248.  We  shall 
treat  the  original  return,  as  modified  by  the 
return  of  the  docket  under  the  order  of  the 
circuit  Judge,  as  constituting  the  record  lit 
the  case. 

The  affidavit  alleges  three  grounds  of  ob- 
jection: First,  because  the  adjournment  of 
the  cause  by  the  Justice  was  against  the 
objection  of  the  defendant  and  without  cause- 
shown;  second,  because  said  adjournment 
without  pleading  and  without  issue  Joined 
or  any  right  reserved  to  plead  later  deprived 
the  Justice  of  Jurisdiction;  and,  third,  be- 
cause no  hour  on  the  1st  of  August  was 
named  to  which  said  cause  was  adjourned, 
and,  no  time  other  than  the  day  to  whlcli 
said  cause  was  adjourned  being  stated  or 
shown  In  said  proceedings,  the  Justice  had 
no  jurisdiction  to  proceed  further. 

As  to  the  first  objection,  the  return  shows 
that  plaintiff  called  for  an  adjournment,  and 
defendant  objected  to  the  same,  but  stated 
that.  If  an  adjournment  was  to  be  had,  Au- 
gust 1st  would  be  a  satisfactory  date.  The 
court  announced  such  adjournment  to  Au- 
gust ^st,  and  the  defendant  thereupon  de- 
manded security  for  costs,  and  plaintiff 
agreed  to  furnish  security  for  costs  on  or 
before  the  Ist  of  August.  Security  for  costs 
was  asked  for  after  the  adjournment  was 
agreed  upon,  as  shown  by  the  return.  Wo 
think  any  Irregularity  in  the  adjournment 
for  want  of  cause  or  as  having  been  mado 
betore  the  pleadings  were  filed  was  waived 
by  this  action  taken  by  the  defendant  In 
the  cause  after,  it  Is  alleged.  Jurisdiction  was 
lost. 

The  remaining  question  is  whether  tho 
Justice  lost  jurisdiction  by  failing  to  state 
the  time  of  the  adjournment.  The  amended 
return  shows  that  the  adjournment  was  had 
until  the  1st  day  of  August,  1907,  at  2  o'clock 
at  the  town  hall  in  the  village  of  Boardmaii. 
The  criticism  of  the  docket  In  this  regard  is 
that  it  fails  to  state  whether  it  was  2  o'clock 
in  the  afternoon  or  2  o'clock  In  the  fore- 
noon. We  think  this  objection  is  not  ten- 
able. An  adjournment  to  2  o'clock  is  an  ad- 
journment equivalent  to  2  o'clock  p.  m.  of 
that  day.  It  is  inconceivable  that  any  one 
could  suppose  It  to  mean  2  a.  m.,  as  that 
would  be  so  far  from  business  hours  as  to 
forbid  such  an  assumption.  Such  an  ad- 
journment would  be  per  se  void  as  un- 
reasonable, and  would  lose  the  court  Juris- 
diction If  the  hour  had  been  named  2  o'clock 
a.  m.  Had  the  hour  been  such  as  to  leavo 
any  uncertainty  as  to  whether  the  forenoon 
or  afternoon  was  meant.  It  might  have  been 
essential  to  designate  it;  bat  this  is  not  such 
a  case. 

We  think  the  Judgment  vacating  the  Jus- 
tice's judgment  should  be  reversed,  and  that 
of  the  Justice  alflrmed. 


Digitized  by 


Google 


MlcliO 


OARBABY  ▼,  DETROIT  UNITED  BY. 


367 


CARBARY  T.   DETROIT  UNITEID   RY. 
(Snpreme  Coart  of  Michigan.    July  15,  1909.) 

1.  ErEXDTOBS  AND  Aduinistbators  ({  51*)— 

Action    (i   40*)— Natubb— Actions   Urdeb 

SuBvivAL  Act  and  Death  Act. 

Rights  of  action  under  the  surriTal  act 
(Comp.  Laws,  {  10,117)  and  the  death  act 
(Comp.  Laws,  }  10,427),  are  assets  of  the  estate 
vested  in  the  administrator,  and  the  acts  do  not 
give  a  double  cause  of  action;  the  existence  of 
one  beine  entirely  inconsistent  with  the  exist- 
ence of  the  other. 

[Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Dec.  Dig.  {  51;*  Action, 
Dec.  Dig.  i  40.*] 

2.  Action   (S   40*)  —  Joindeb  in   Diffebent 

Counts  —  Actions    Undeb   Survival    and 

Death  Acts. 

*  To  meet  the  exigency  of  varying  testimony, 
a  count  for  damages  under  the  survival  act 
(Comp.  Laws,  (  10,117)  and  one  under  the  death 
act  (Comp.  Laws,  S  10,427)  can  be  joined  in  the 
same  action,  though  the  rule  of  damage  would 
Dot  be  the  same  in  both  cases. 

[Ed.  Note.— For  other  cases,  see  Action,  Dec 
nig.  {  40.*] 

3.  .\CTi0N  (I  42*)— Joindeb  in  Diffesent 
Counts  —  Actions  Under  Subvival  and 
Death  Acts. 

Fact  that,  if  recovery  were  had  on  a  count 
under  the  death  act  (Comp.  Laws,  {  10,427),  the 
damages  may  be  distributed  onlv  to  certain  of 
the  next  of  kin  who  should  be  shown  to  be  in- 
jured, while  on  recovery  under  another  count 
under  the  survival  act  (Comp.  Laws,  {  10,117), 
the  damages  would  be  distributed  under  the  gen- 
pral  law  of  distribution,  would  not  preclude 
joinder,  as  the  probate  court  would  have  juris- 
diction to  compel  proper  application  of  damages 
recovered. 

[Ed.  Note.— For  other  cases,  see  Action,  Dec. 
Dig.  I  42.*] 

Certiorari  to  Clrcait  Cotirt,  Wayne  Coun- 
ty; Alfred  J.  Murphy,  Judge. 

Action  by  George  C.  Carbary,  adtnlnlstra- 
tor,  against  the  Detroit  United  Railway.  A 
demurrer  to  the  declaration  was  overruled, 
and  defendant  brings  certiorari.     Affirmed. 

Argued  before  BLAIR,  O.  J.,  and  MONT- 
GOMERY, HOOKER,  McALVAY,  and 
BROOKE,  JJ. 

Corliss,  Leete  &  Joslyn  (Paul  B.  Moody,  of 
counsel),  for  appellant.  Chamberlain,  May, 
Denby  &  Webster,  for  appellee. 


HOOKER,  X  The  plalntUt  brought  an  ac- 
tion in  the  capacity  of  administrator.  The 
declaration  contained  two  counts,  one  under 
what  has  come  to  be  known  as  the  "Surviv- 
al Act"  (Oomp.  Laws,  f  10,117)  and  the  oth- 
er under  the  "Death  Act"  (Comp.  Laws,  | 
10,427),  80  called,  two  statutes  of  this  state 
relating  to  actions  of  negligence.  The  first 
I'ount  alleges  the  negligent  Injury  of  plaln- 
tUTs  intestate,  and  bis  survival  for  a  period 
of  10  minutes.  The  other  alleges  his  in- 
stantaneous death  through  defendant's  neg- 
ligence. From  an  order  overruling  defend- 
iint'8  demurrer  to  this  declaration  it  has  ap- 
liealed,  and  the  crucial  question  is  whether 
the  two  counts  may  be  joined  in  one  action. 


The  contention  of  defendant's  counsel  is 
that  these  two  counts  are  on  tbeir  faces  In- 
consistent, Inasmuch  as  one  alleges  that  the 
Intestate  lived  10  minutes  after  the  accident, 
while  the  other  Is  based  upon  his  instantane- 
ous death,  and,  again,  that  the  two  rights  of 
action  ^do  not  accrue  to  the  plaintiff  in  the 
same  right,  for  the  reason  that  on  the  theory 
of  the  counts  based  on  the  survival  act  tlio 
damages  would  belong  to  the  estate  of  de- 
cedent, to  be  distributed  under  the  general 
law  of  distribution,  while  under  the  other 
count  they  would  be  distributed  to  certain  of 
the  next  of  kin  who  should  be  shown  to  have 
been  injured.  It  Is  also  pointed  out  th.<it  the 
rule  of  damage  would  not  be  the  same  lu 
both  cases.  The  right  of  action  under  the 
survival  act  and  that  under  the  death  act 
are  vested  by  the  law  In  the  administrator. 
That  the  right  of  action  under  the  former 
act  is  an  asset  of  the  estate  does  not  admit 
of  a  doubt,  and  that  the  right  under  the  lat- 
ter is  also  an  asset  of  the  estate  was  held  lu 
the  cases  of  Flndlay  v.  Chicago,  etc.,  R.  Co., 
106  Mich.  700,  64  N.  W.  732;  Jordan  v.  C.  & 
N.  W.,  125  Wis.  581,  104  N.  W.  803.  1  L.  R. 
A.  (N.  S.)  885,  110  Am.  St.  Rep.  805.  They 
are  Irath  actions  by  the  same  plaintiff — 1.  e., 
the  representative  of  an  estate,  authorized' 
to  collect  Its  assets — against  the  same  de- 
fendant. Had  the  laws  (as  contended  in  the 
cases  of  Sweetland,  117  Mich.  329,  75  N.  W, 
1066,  43  L.  R.  A.  568,  and  Dolson,  128  Mich. 
454,  87  N.  W.  629)  given  a  double  cause  of 
action,  it  would  seem  obvious  that  a  right 
to  join  the  two  causes  In  one  action  would" 
violate  no  principle  of  pleading  unless  the 
difference  in  distributive  rights  or  a  differ- 
ence in  the  measure  of  damages  would  be  an 
obstacle;  and  we  cannot  see  that  either  need 
be.  But  it  must  be  admitted  that  there  Is 
not  a  double  remedy,  and  that  the  existence 
of  one  cause  of  action  is  entirely  inconsist- 
ent with  the  existence  of  the  other.  It  is  ob- 
tious,  however,  that  cases  may  arise  where 
the  right  of  recovery  is  certain  but  the  rem- 
edy uncertain,  and  dependent  upon  what  a 
trial  may  disclose,  and  a  jury  conclude,  as  to 
the  conjunction  in  point  of  time  of  accident 
and  death.  Such  a  case  almost  requires  a 
joinder  of  counts;  for  If  two  actions  be  re- 
quired to  try  both  theories,  not  only  does 
delay  and  expense  follow,  but  a  plaintiff  is 
in  danger  of  losing  his  remedy  altogether  by 
"falling  between  two  stools"  through  suc- 
cessive verdicts  in  which  the  Juries  may  dif- 
fer upon  that  single  question.  See  Barton 
V.  Gray,  48  Mich.  164,  12  N.  W.  30;  Berrlng- 
er  V.  Oobb,  68  Mich.  660,  25  N.  W.  491. 

Were  such  a  case  one  where  a  plaintiff 
has  a  choice  of  remedies,  he  would  be  bound 
by  his  election;  but  be  has  no  choice.  Ue 
cannot  recover  on  l>oth,  and  the  defendant 
is  entitled  to  have  the  concurrence  of  all 
the  Jurors  in  a  verdict  based  upon  one  or 
the  other  count,  but  we  see  no  reason  for  a 


•For  other  cases  te«  wm«  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Inde.xes 


Digitized  by  VjOOQ  l€ 


368 


122  NORTHWESTERN  REPORTER. 


(MlclL 


denial  of  the  vigbt  to  Join  sncb  counts,  al- 
tbough  we  are  aware  that  courts  of  some 
states  hare  denied  the  right.  It  seems  to 
OS  that  the  case  Is  within  the  rule  followed 
in  the  cases  of  Glover  t.  Radford,  120  Mich. 
842,  79  N.  W.  803;  McLaughlin  v.  Austin, 
104  Mich.  491,  62  N.  W.  719;  Ohaddock  v. 
Taber,  116  Mich.  S3,  72  N.  W.  1096;  Dolson 
V.  L.  8.  R.  Co.,  128  Mich.  444,  87  N.  W.  629. 
The  wisdom  of  Joining  several  counts  to 
meet  the  exigency  of  varying  testimony  has 
been  often  vindicated  and  sanctioned.  Wat- 
son V.  Watson,  49  Mich.  640,  14  N.  W.  489; 
Rawlinson  v.  Shaw,  117  Mich.  5,  76  N.  W. 
138;  Loudon  v.  Carroll,  180  Mich.  79,  89  N. 
W.  678;  Velthouse  v.  Alderlnk,  163  Mich. 
223,  117  N.  W.  78,  18  L.  R.  A.  (N.  S.)  687. 
The  fact  that  the  damages  to  be  recovered 
may  be  distributed  to  some  and  not  to  others 
of  the  next  of  kin  should  not  be  held  to  pre- 
clude such  Joinder,  as  the  probate  court 
would  have  Jurisdiction  to  compel  their  prop- 
er application. 

Neither  Is  the  question  raised  as  to  the 
measure  of  damage  important,  for  in  many 
instances  of  Joinder  of  several  counts  dUfer- 
«nt  rules  as  to  the  measure  of  damage  would 
apply. 

The  judgment  is  afDrmed. 


McQUATER   v.   MANDELL,   Wayne   Circuit 

Judge. 
(Supreme  Court  of  Michigan.    July  15,  1909.) 

1.  Mandamtts  ({  164*)— Retubr  of  Respond- 
ent—Conclusiveness. 

The  Supreme  Court,  in  mandamus  to  com- 
pel a  circuit  judge  to  vacate  an  order  dissolv- 
ing a  temijorary  injunction,  and  to  reinstate 
the  injunction,  must  accept  the  return  of  tlie 
judge  averring  that  he  exercised  discretion  in 
dissolving  the  injunction. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Cent.  Dig.  i  355 ;   Dec.  Dig.  {  164.*] 

2.  Pabtnebship  (J  324*)  —  Accounting  —  Iw.- 

JUNCTION— DlSCBETION    OF   TBIAL   COURT. 

Wtiere,  in  a  suit  for  a  firm  accounting, 
plaintiff  alleged  the  existence  of  a  partnersliip, 
and  defendant  denied  it,  and  it  appeared  that 
plaintiff  had  never  put  any  money  is  the  al- 
leged firm,  nor  contributed  anything  to  the 
operating  expenses,  and  tbe  court  found  that  it 
was  unreasonable  to  believe  that  a  firm  existed 
as  alleged  by  plaintiff,  the  court  in  its  discre- 
tion properly  dissolved  the  temporary  Injunc- 
tion. 

[Ed.  Note.— For  other  cases,  see  Partnership, 
Dec.  Dig.  §  324.*] 

Mandamus  by  James  McQuater  against 
Henry  A.  Mandell,  Wayne  Circuit  Judge,  to 
compel  respondent  to  vacate  an  order  dis- 
solving a  temporary  injunction,  and  to  rein- 
state the  Injunction.    Denied. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDER,  and  HOOK- 
ER, JJ. 

Walter  E.  Martin,  for  relator.  Joseph  T. 
Belanger,  for  respondent. 


BLAIR,  C  J.  Relator  filed  his  bill  of  com- 
plaint In  the  Wayne  Circuit  Court,  In  chan- 
cery, against  Fred  W.  Malone  as  defendant, 
alleging,  In  brief,  that  the  parties,  on  Jnly 
25,  1908,  entered  Into  a  copartnership  in  the 
laundry  business  by  verbal  agreement,  where- 
by complainant  put  Into  the  business  his  ex- 
perience "as  an  expert  machinist  and  builder 
of  laundry  machinery,  and  also  agreeing  to 
and  giving  his  entire  time  and  attention  to 
said  business,  and  said  defendant  agreed 
to  and  did  bring  into  said  business  tbe  ma- 
chinery and  fixtures  necessary  to  carry  on 
said  business";  that  complainant  acquired 
by  said  agreement  a  one-half  Interest  In  said 
business,  and  was  to  share  equally  in  tbe 
profits  and  bear  one-half  the  losses  thereof; 
that  the  parties  did  business  under  the  agree- 
ment until  February  2,  1909,  when  defendant 
refused  to  recognize  complainant  farther  as 
a  partner,  and  employed  a  man  to  take 
charge  of  the  business;  that  complainant 
never  drew  more  than  $3  per  week  from  said 
business,  although  he  was  earning  thereto- 
fore at  his  trade  $20  per  week;  that  de- 
fendant refuses  to  account  to  complainant, 
and  has  Informed  him  that  he  Is  going  to 
sell  the  said  machinery  and  fixtures;  and 
that  complainant  Is  In  danger  of  losing  tbe 
amount  due  him  from  said  business.'  Tbe 
bill  prays  for  an  accounting,  a  temporary  In- 
junction, and  a  receiver.  A  temporary  in- 
junction was  Issued,  reserving  the  right  to 
the  defendant  to  move  to  modify  or  dissolve 
it.  Defendant  filed  his  answer,  and  moved 
to  dissolve  the  Injunction.  The  answer  Is 
imder  oath,  and  denies  every  material  alle- 
gation of  the  bill.  As  to  the  verbal  agree- 
ment for  a  partnership,  the  answer  avers 
that,  about  June  25,  1908,  complainant  ap- 
proached defendant  with  a  proposition  to 
purchase  certain  laundry  machines  and  equip- 
ment, and  to  start  a  laundry,  representing 
that  he  would  obtain  $250,  and  that  they 
would  purchase  said  machines  and  start  said 
laundry  together;  that,  relying  upon  this 
representation,  defendant,  on  June  26,  1908, 
purchased  the  machines  for  $250,  and  took 
a  bill  of  sale  thereof  In  his  own  name ;  that 
complainant  never  produced  the  $250,  or  any 
part  thereof ;  that,  on  or  about  July  25,  1908, 
defendant  rented  a  two-story  brick  building, 
and  employed  complainant  to  take  charge 
of  his  engine,  boiler,  and  washing  machines, 
agreeing  to  pay  him  therefor  the  sum  of  $5 
per  week,  and  to  give  blm,  rent  free,  the  use 
of  three  rooms  on  the  second  fioor  of  said 
building  and  bis  artificial  light  and  heat 
free ;  that  complainant  worked  for  defendant 
under  said  agreement  till  February  3,  1909, 
when  he  left  defendant's  employ  voluntarily : 
that  defendant  paid  all  of  the  expenses,  and 
put  in  the  entire  capital  of  the  business; 
that  defendant  told  complainant,  during  the 
entire  period  of  bis  employment,  that  be 


•For  otUer  cases  tea  same  topic  and  sactton  NUMBER  In  Dec.  A  Am.  Digs.  1907  to  date,  *  Raportar  ladaxM 


Digitized  by  VjOOQ  l€ 


Mich.) 


PEOPLE  V.  NOBHAN. 


369 


would  give  him,  at  any  time  he  should  put 
In  capital,  an  Interest  In  the  business  In  pro- 
portion to  the  amount  he  should  luTest,  and 
complainant  repeatedly  told  defendant  he 
was  going  to  put  In  money,  but  never  did; 
that  defendant  is  an  expert  machinist  of  22 
years'  experience,  capable  of  operating  laun- 
dry machinery,  and  gave  his  entire  time  to 
the  business,  frequently  working  18  and  19 
hours  a  day. 

The  circuit  Judge  dissolved  the  injunction, 
and  complainant  applies  for  a  writ  of  manda- 
mus to  compel  him  to  vacate  such  order  and 
reinstate  the  injunction,  alleging  that  In  en- 
tering such  order  the  respondent  "In  no  way 
exercised  his  discretion  In  making  said  order, 
but,  himself  referring  to  the  case  of  Goldman 
V.  Manistee  Circuit  Judge  (Mich.)  118  N.  W. 
600,  stated  that  he  was  bound  by  this  deci- 
sion, and  on  the  strength  of  said  decision 
granted  an  order  dissolving  the  injunction" ; 
that  on  the  hearing  of  the  motion  to  dissolve 
complainant  "agreed  to  consent  that  the  in- 
junction be  modified  so. that  defendant  would 
merely  be  restrained  from  selling,  or  other- 
wise di^Ktslng  of,  the  machinery  used  for 
carrying  on  the  laundry  business";  and, 
further,  that  complainant  would  lose  all  his 
protection  from  loss  If  the  Injunction  were 
dissolved.  Respondent  In  his  return  admits 
that  he  did  state  that,  In  his  opinion,  the  de- 
cision In  the  Goldman  Case  "applied  with 
equal  force  to  the  facts  In  the  case  before 
him,  and  that,  Ind^Dendently  of  the  equities 
and  other  features  in  the  said  case  before 
him,  said  decision  made  it  Incumbent  upon 
him  to  dissolve  said  Injunction,  but  that  he 
exercised  his  discretion  In  making  said  or- 
der, and,  before  making  same,  he  entered  Into 
a  discussion  of  the  merits  of  the  case  with 
the  said  solicitors  for  the  respective  parties, 
and  heard,  considered,  and  discussed  the 
contentions  of  said  McQuater's  solicitor,  the 
same  as  are  set  forth  In  his  brief  filed  here- 
in, and,  in  view  of  the  fact  that  said  Mc- 
Quater  never  put  any  money  into  the  part- 
nership alleged  by  him  to  exist  between  him 
and  said  Malone,  and  never  contributed  any 
money  to  meet  the  expenses  of  operating  and 
maintaining  the  laundry  alleged  by  him  to 
be  the  subject  of  said  alleged  partnership; 
and  the  terms  of  his  alleged  partnership 
agreement  make  no  mention  of  the  contribu- 
tion of  cash  necessary  to  conduct  the  laun- 
dry, pay  the  rent  of  the  premises  occupied 
by  It,  and  the  expenses  of  starting  and  run- 
ning It;  and  the  fact  that  the  alleged  con- 
tribution by  McQuater  of  his  expert  knowl- 
edge of  laundry  machinery  and  his'  entire 
time  and  attention  to  the  business  is  equaliz- 
ed by  the  allegation  of  Malone  that  he,  too, 
is  an  expert  machinist,  and  that  he  has  given 
his  entire  time  and  attention  to  said  busi- 
ness ;  and  the  fact  that  Malone  equipped  said 
laundry  with  all  the  machines  and  equipment 


used  by  It  entirely  at  his  own  expense,  and 
that  said  laundry  represented,  at  the  date  of 
his  answer,  fm  Investment  on  his  part  of  the 
large  sum  of  $1,177.58;  and  the  belief  of 
your  respondent  that  the  acceptance  by  Mc- 
Quater from  Malone  of  the  sum  of  $5  per 
week,  and  the  free  use  of  three  rooms  and 
artificial  light  and  heat  for  his  services 
shows  that  there  was  no  partnership  between 
them,  and,  particularly  under  the  circum- 
stances alleged  in  said  answer.  Is  not  incon- 
sistent with  said  Malone'B  denial  of  the  ex- 
istence of  a  partnership— your  respondent 
is  of  the  opinion  that  the  theory  and  conten- 
tion of  McQuater  are  not  so  probable  as  those 
of  Malone,  and  that  It  is  unreasonable  to 
suppose  that  said  Malone,  entirely  at  his 
own  expense,  would  have  started  said  lauu- 
dry,  equipped  it,  and  operated  and  maintain- 
ed It  this  long  period  of  time  if  he  was  not 
the  sole  owner  of  said  laundry,  and  its  busi- 
ness and  all  the  machines  and  equipment 
used  by  it,  or  that  said  Malone  would  have 
started  said  laundry  under  a  partnership 
agreement  with  said  McQuater  without  any 
provision  made  for  operating  and  mainte- 
nance expenses,  or  without  any  obligation  or 
agreement  on  the  part  of  said  McQuater  to 
furnish  his  share  thereof,  and  without  the 
knowledge  and  certainty  that  said  McQuater 
had  the  necessary  money  so  to  do,  and,  being 
of  such  opinion,  and  exercising  his  dlscretlou 
in  the  matter,  your  respondent  accordingly 
made  the  said  order  dissolving  the  said  in- 
junction." 

We  must  accept  the  return  of  the  respond- 
ent that  he  did  exercise  his  discretion  in  dis- 
solving the  Injunction,  and  we  are  satisfied 
that  there  was  no  such  abuse  of  discretion, 
if  any,  as  to  warrant  us  in  ordering  the  in- 
junction reinstated.  Grand  Rapids  ESec.  Ry. 
Co.  V.  Calhoun  Circuit  Judge  (Mich.)  120  N. 
W.  1004. 


PEOPLB  T.  NORMAN. 

(Supreme  (>>ort  of  Michigan.     July  15,  1909.) 

1.  INTOXICATINQ    LlQUOBS    ({    145*)— CLOSING 
HOUBS. 

The  proprietor  of  a  saloon  Is  absolutely 
bound  to  keep  his  salOon  closed  ob.  Sunday 
and  during  certain  hours  •  of  the  night  - 

[Ed.  Note.-^For  otbeV'  casas,  see  Intoxicating 
Liquors,  Cent.  Dig.  {  158-;.  Dec.  Dig.  8  143.*1 

2.  INTOXJCATINO     LlQUOBS     (|  - 140*)  —  SAIX— 

Regulation   —   Ops^n    ShuoooN   -j-   "Kept 

Closed.',' 

Whore  defendant's  saloon  was  so  a^rranged 
that  bis  boarders  ■  and  employ^)  could  gO  into 
the  barroom  on  Sunday  either  to.  go  in  or 
out  of  the  building,  the  saloon  was  not  kept 
closed,  as  required  by  law. 

[Ed.  Note. — For  other  cases,  see  Intoxicating 
Liquors,  Cent.  Dig.  {  158;   Dec.  Dig.  {  145.*] 

Error   to    Circuit   C!ourt,    Delta    County; 
John  W.  Stone,  Judge. 


•rer  otb«r  cases  m«  wm*  tople  and  (acUaa  NUUBBR  in  Ote.  ft  Am.  Digs.  1907  to  dat«,  *  IUport«r  liidazM 
122N.W.-24 


Digitized  by 


Google 


:!T0 


122  NOUTUWESXKRN  KEPOUXEU. 


(Micb. 


Henry  Noriuan  ^as  conTlcted  of  keeping 
a  saloon  open  on  Sunday,  and  he  brings  er- 
ror.    Affirmed. 

Ai-gued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  McALVAT,  and  BROOKE, 
JJ. 

Cnmmlskey  &  Spencer,  for  appellant.  John 
E.  Bird,  Atty.  Gen.,  and  A.  H.  Byall,  Acting 
Pros.  Atty.,  for  the  People. 

MONTGOMERY,  J.  The  respondent  was 
<-onvlcted  of  the  offense  bf  keeping  his  sa- 
loon open  on  Sunday.  The  people  offered 
testimony  showing  that  the  saloon  was  open 
on  that  day,  and  that  a  number  of  people 
were  In  the  saloon,  and  that  some  person 
was  behind  the  bar  dispensing  liquor  to 
those  assembled.  To  meet  this  case,  the 
respondent  testified  that  he  himself  was 
not  in  the  saloon,  and  that  he  bad  but  one 
man  In  his  employ  as  bartender,  Oscar  John- 
son, who  was  also  called,  and  testified  that 
he  was  not  In  the  saloon  on  that  day.  The 
respondent,  on  cross-examination,  testified 
to  the  arrangement  of  his  saloon  as  fol- 
lows: "This  building  that  I  occupy  as  a 
saloon  is  a  long  narrow  building,  and  faces 
on  Ludington  street,  with  the  main  entrance 
on  Ludlngton  streiet.  There  Is  a  partition 
it  little  ways  ba<^  In  the  building,  about 
six  feet  from  the  front  door.  Back  of  that 
is  the  bar.  There  are  no  stoves,  chairs,  or 
tables  in  the  barroom.  Beyond  the  back 
of  the  bar  there  fs  a  partition  again.  Then 
there  are  tables,  chairs,  and  a  stovB.  Prom 
there  the  stairs  run  upstairs.  Back  of  this 
second  room  Is  where  I  lived,  on  the  ground 
tloor.  The  barroom  enters  Into  this  room 
where  the  chairs  and  tables  and  that  sort  of 
stuff  are.  The  side  door  goes  right  into  the 
barroom.  If  you  wanted  to  go  upstairs, 
you  would  come  from  the  west  side  Into 
the  barroom,  and  step  out  Into  the  other 
room,  if  you  wanted  to  go  upstairs.  I  kept 
boarders  and  roomers  upstairs.  The  dining 
room  was  downstairs  on  the  other  side  of 
the  stairway.  Back  of  the  dining  room  there 
is  a  bedroom,  where  I  lived.  The  next  bed- 
room is  my  bedroom,  and  back  of  that  to 
the  north  is  the  kitchen,  so  that  between 
my  bedroom  and  the  barroom  was  the  big 
room  and  the  stairway.  Then  there  is  the 
dining  room  and  the  kitchen,  and  Oxen  my 
bedroom.  Dr.  Oroos  and  Dr.  Fenelon  were 
there  on  that  Sunday.  My  wife  died  on 
February  Ttb.  I  was  not  out  of  the  build- 
ing at  all  on  that  day.  I  slept  in  the  same 
room  where  my  wife  was  sick.  I  was  In 
her  bedroom  and  In  the  other  part  of  the 
house,  but  not  outside  that  day,  °  I  took  my 
meals  In  the  kitchen.  I  didn't  go  to  the 
(lining  room  to  wt  anything,  and  I  was  not 
upstaiEB  that  day.  .1  was  not  In  the  room 
u-here  these  chairs,  taWeo,  and  tsteve  are 
or  in  the  barroom.  My  wife  had  bjsen  sick 
for  about  a  bmsA  and  a  half  before.     I 


had  been  going  about  my  business  in  tbe 
ordinary  way,  but  this  particular  Sunday  I  . 
stayed  in  ^at  room  all  day.  This  bartender 
had  a  key  to  the  front  door.  On  this  side 
door  I  have  an  iron  bar  put  across.  I  didn't 
have  any  key  for  the  side  door.  I  had 
boarders,  and  the  only  way  they  could  get 
out  was  to  go  down  through  this  room  and 
out  through  the  barroom.  That  day,  of 
course,  my  wife  was  sick,  and  I  don't  know 
where  they  were  keeping  themselves.  At 
that  time  I  had  at  least  two  boarders.  Tbey 
stayed  there  the  night  before.  I  got  a  snap 
lock  on  the  door  that  goes  up  the  stairway, 
so  that  we  can  go  in  that  way  to  and  from 
the  stairway,  right  from  the  dining  room 
into  the  stairway.  There  were  three  out- 
side doors  on  the  west  side.  One  Is  for  tbe 
saloon,  one  is  for  tbe  stairway,  right  into 
the  dining  room,  and  then  one  for  the  kit- 
chen; and  they  are  all  on  the  west  side.  Q. 
But  the  general  way  of  going  out  was 
through  tbe  barroom  and  out  That  was  the 
usual  way?  A.  To  go  into  the  barroom. 
The  side  door,  the  first  door,  on  the  west 
sides  goes  into  tbe  barroom.  The  second 
door  goes  for  tbe  upstairs  and  for  the  dining 
room,  and  Into  this  back  room." 

The  circuit  Judge,  while  not  directing  a 
verdict  for  the  people,  stated  that  the  ca8(> 
made  by  the  prosecution  had  not  been  met 
by  the  prgof  offered  on  tbe  part  of  the  de- 
fendant. There  was  no  error  in  this  if  the 
facts,  taken  as  a  whole,  show  that  the  saloon 
was  not  kept  closed  on  that  day.  See  Peo- 
ple V.  North,  153  Mich.  612,  117  N.  W.  <J3. 
It  is  the  settled  law  In  this  state  that  tbe 
proprietor  of  a  saloon  must  see  that  it  Is 
kept  closed  on  Sunday  and  during  certain 
hours  of  the  night.  See  People  v.  Wald- 
vogel,  49  Mich.  337,  13  N.  W.  620;  People  v. 
Cummerford,  68  Mich.  328,  25  N.  W.  203: 
People  V.  Cox,  70  Mich.  247,  38  N.  W.  235: 
People  V.  Hughes,  97  Mich.  643,  56  N.  W. 
942;  People  v.  Schottey,  116  Mich.  2,  74  X. 
W.  209.  Reading  the  testimony  of  the  re- 
spondent in  the  present  case,  it  is  apparent 
that  this  room  connecting  with  the  barroom 
and  between  which  and  the  barroom  there 
was  no  door  fastened  was  the  usual  means 
of  egress  of  the  boarders.  In  other  words, 
that  it  was  open  and  accessible  to  any  of 
the  boarders  and  employes.  It  is  true  the 
testimony  tends  to  show  that  the  side  door 
was  kept  fastened  by  a  bar,  bnt  the  access 
to  this  room  from  the  other  rooms  of  tbe 
building  la  not  Shown  by  tbe  testimony  to 
have  been  cut  off.  If  it  was  open  so  thnt 
these  boarders  and  employM  could  go  into 
tbe  room,  It  was  not  kept  closed  within  tbe 
meaning  of  tbe  law  as  laid  down  In  the 
cases  cited  above.  The  court  was  therefore 
not  in  error  in  saying  to  the  Jury  that  the 
testimony  of  the  respondent  had  not  over- 
come tbe  testimony  offered  by  tbe  people. 

Tbe  conviction  is  affirmed. 


Digitized  by 


Google 


MichJ 


QARKSBY  V.  BOYCB. 


871 


GARNSBY  T.  BOYOE. 
(Supreme  Court  of  Michigan.    July  15,  1909.) 

1.  Rleadino  (S  248*)  — Couflaikt— Aicekd- 

MXNT. 

Under  Comp.  Laws  1897,  {  10.268,  em- 
Itavrerine  the  court  to  amend  any  pleading  in 
the  fartheraoce  of  justice,  etc,  where,  in  an 
action  for  injuries  to  a  aenrant,  the  complaint 
alleged  that  there  was  no  guard  on  the  macliine 
by  which  platntiit  was  injured,  but  the  case  was 
tried  tlirougbout  on  the  theory  of  a  defective 
gnard,  an  amendment  to  the  complaint  alleging 
that  the  guard  had  become  defective  was  per- 
missible, defendant  not  having  claimed  to  Imlts 
been  taken  by  surprise,  and  there  t>eing  no 
request  to  recall  the  jury,  or  for  further  time. 

(Ed.  Note.— For  other  cases,  see  Pleading, 
Dec  Dig.  f  248.*] 

2.  Master  and  Sebvant  (f  288*)— Injuries 
TO   Servant— AasuHFTion  or  Ribk— Qces- 

TIOH8  >t>B  JUBT. 

In  an  action  for  injuries  to  a  senrant 
through  an  alleged  defective  machine,  whether 
plaintiff  assnmed  the  risk  held,  under  the  evi- 
dence, for  the  jury. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  |f  1068-1088;   Dec.  Dig.  i 

Error  to  Circuit  Oonrt,  Calhoun  County; 
Walter  H.  North,  Judge. 

Action  by  Mtna  B.  Oarnsey  against  Eathet 
U  Boyoe.  Judgment  for  plaintiff,  and  de- 
fendant brings  erroc    Afflmied- 

Defendant  owned  and  carried  on  a  laun- 
dry. Plaintiff,  awomau  28  years  of  age, 
was  her  empIoy&  On  June  12,  1905,  plaiutlfC 
was  feeding  a  mangle,  1.  e.,  was  running 
bntcbos'  aprons  through  It;  heavily  satu- 
rated with  starch.  Her  hand  In  some  way 
got  between  the  rollers,  and  was  so  badly 
lacerated  that  amputation  of  a  large  part  of 
it  became  necessary.  She  instituted  this  suit 
4o  roooirer  damages,  alleging  negllgenoe  on 
the  part  of  the  defendant.  The  declaration 
contains  two  ooonta.  The  first  alleges  the 
dntf  of  the  defmdant  to  give  plaintiff  In- 
structions as  to  the  use  of  the  machine  and 
failure  to  so  do,  and  negligence  In  removing 
the  guard  or  protector  from  said  machine. 
In  the  second  count  she  alleges  that  said  ma- 
<>tilne  was  built  or  constructed  witJi  a  guard, 
that  it  had  been  removed,  and  that  she  had 
110  warning  of  the  danger  of  Its  unsafe  con- 
dition became  of  the  absence  or  displacement 
of  said  guard.  It  appeared  from  her  own 
testimony  upon  the  trial  there  was  a  guard, 
bat  that  it  was  In  an  onaafe  and  defective 
condition.  After  plaintiff  had  rested  her 
«aBe,  defetadiSBt's  counsel  moved  the  court  to 
direct  a  yerdict  for  the  defendant  on  the 
ground  of  a  fatal  variance  between  the  dec- 
laration and  the  proofs.  Tbto  motion  was 
denied.  The  defendant  then  Introduced  Iker 
pnotB,  and,  when  both  parties  had.  rested, 
counsel  for  defendant  again  moved  the  court 
to  direct  a  verdict  f^r  the  same  reason,  and 
also  for  the'  reason  thftt  plaintiff  assnmed 
the  risk;  the  longer  being  obvious.  This 
awtion  Aras  denied,  and  the  case  submitted  to 


the  Jury,  who  reudei'ed'  a  substantial'  verdict 
for  the  i^alntlff.  After  the  jury  bad  retired, 
plaintiff's  counsel  asked  leave  to  amend  tfar<^ 
declaration  by  inserting  a  third  count  as 
f<rilow8 :  "Plaintiff  further  alleges  that  said 
machine  had  at  the  time  of  the  injury  com- 
plained of  become  defective,  in  that  the  ad- 
justment of  said  gnard  had  become  worn  and 
defective  and  loosened  and  misplaced,  there- 
by exposing  the  operator  of  said  machine  to 
great  danger  and  injury  because  of  said  de- 
fect"   The  amendment  was  allowed. 

Argued  before  GRANT,  MONTQOMERT, 
OSTRANDBR,  HCK>KBR,  and  MOORB,  JJ. 

Arthur  B.  Williams  and  Howard  Green, 
for  appellant.  Stewart  &  Jacobs  and  F,  A. 
Kulp,  for  appellee. 

GRANT,  J.  (after  stating  the  facts  as 
above).  1.  The  statute  of  amendments 
(Coup.  Laws,  §  10,268)  Is  very  broad,  and  in 
the  furtherance  of  Justice  has  been  liberally 
construed  by  this  conrt  See  Crose  t.  St. 
Mary's  Canal  Land  Co.,  16S  Mich.  863,  117 
N.  W.  81.  Bow  the  pleader  in  this  case 
rtiould  bare  committed  the  mistake  in  alleg- 
ing that  there  was  no  guard  when  in  fact 
there  was  one  it  Is  dliBcult  to  understend. 
The.  case  was  tried  throughout  upon  the 
theory  of  a  defective  and  nnsaf e  guard. '  De- 
fendant makes  no  claim  to  have  been  taken 
by  surprise.  Thek-e  was  no  request  to  recall 
the  Jury  and  ask  fot  further  time  Under 
the  clrcumstnnoea,  we  think  ths  amefndment 
was  pennisstble. 

2.-  It  Is  dtrenuonsly  urged  on  behalf  of  the 
defendant  that  the  danger  in  feeding  clothes 
Into  this  mangle  wft»  obvious,  that  plaintiff 
had  worked  in  this  and  other  iarnidries,  and 
that  she  dierefore  assnmed  the  risk.  It  ap- 
pears from  her  testimony  tbat  she  had  once, 
some  time  before,  worked  for  a  few  weeks 
in  another  laundry  upon  a  mangle  different 
from  that  of  the  defendant,  ui)on  which  thei« 
Was  (iicarcely  a  possibility  of  the  hands  of  the 
feeder  getting  into  the  rollers.  That  ma- 
chine, she  testified,  had  an  apron  which  car- 
ried the  clothes  Into  the  rollers  and  a  gnard. 
and  she  could  not  get  her  hands  within  about 
a  foot  of  the  rollers.  In  this  case  the  roHern 
were  only  an  Inch  and  a  half  or  two  Inches 
from  the  guard.  She  testified  that  the  starch 
was  sticky,  tbat  the  aprons  were  heavy  with 
It,  and  that  ns  she  gave  the  apron  fthe  fourtli 
one  which  she  fed  to  the  machine)  a  shove, 
as  is  customnty,  her  bands  stuck  to  the 
apron,  went  under  the  guard,  and  into  the 
rollers.  She  also  testified  that  this  was  the 
first  occasion  in  which  she  had  been  called 
upon  to  feed  the  mangle  in  defendant's  laun- 
dry ;■  that  no  Instructions  were  given  h#r  or 
Information  of  any  latent  dangc^r,  or  that 
the  guard  was  defective  or  out  of  repair. 

One  Frank  Dunham,  who  was  at  the  time 
defendant's  forentan,  described  this  machine 


fCte.adMV  «•<•■  ■«■  aaa» topis. an*  SMtMii'NUMBaiR  to  Dm.  &  Am.  Dlc«.  1907  to  d«te,  ^k  Reporter  laMiMl 


Digitized  by  VjOOQ  l€ 


372.    , 


122  NORTHWESTBEN  BEPOBTER. 


(Mich. 


and  the  defect  as  follows:  "There  was  a 
guard  In  front  of  the  first  padded  roll,  prob- 
ably about  two  or  three  Inches  in  front  of 
It,  fastened  to  the  frame  of  the  machine  by 
little  brackets  with  a  slide,  and  conld  be 
raised  or  lowered,  and  the  guard  was  fasten- 
ed to  those  brackets  with  screws.  That 
guard  was  for  two  purposes — one  to  keep 
their  hands  from  between  the  rolls,  and  the 
other  was  to  guide  the  strings  along.  We 
had  to  put  strings  along  the  padded  rolls  In 
order  to  keep  the  goods  from  following  them 
along,  and  there  were  little  eye  screws  In 
the  guard  that  the  strings  ran  through.  If 
the  guard  was  In  the  position  it  ought  to  be, 
It  would  not  be  more  than  one-half  to  flve- 
eighths  of  an  Inch  over  the  feeding  board. 
It  was  kept  In  that  position  by  screws  that 
fastened  it  in  the  slides  In  the  end  of  the 
machine  to  brackets.  Q.  On  this  day  in  ques- 
tion what  was  the  position  of  this  guard  and 
Its  condition?  A.  Well,  the  mangle  was  in 
poor  condition  all  the  way  through.  It  was 
an  old  mangle.  If  the  guard  was  left  to  drop 
down,  as  it  naturally  would,  with  nobody 
touching  it,  it  would  be  pretty  near  in  its 
right  place,  but  we  had  trouble  with  it,  and 
could  not  keep  it  In  place.  We  ;i^ould  hare 
.to  stand  there  with  a  screw-driver  all  the 
time  to  keep  these  screws  tightened  up,  and 
you  could  shove  it  up  by  shoving  your  band 
under  it  The  screws  were  at  either  end  of 
the  mangle  in  those  little  brackets  that  fas- 
tened it  to  the  frame.  It  was  not  possible  on 
the  day  in  question  to  screw  them  so  they 
would  stay  permanently  tight — not  with 
what  we  had  to  do  with.  It  could  have  been 
made  to  stay  there  If  they  had  took  the  prop- 
er method.  It  could  have  been  bolted  there 
BO  that  it  would  have  stayed.  This  guard  I 
know  was  loose  most  of  the  time.  It  was 
loose  when  I  went  there.  It  might  have  been 
tight  once  In  a  while  right  after  we  tighten- 
ed it  up,  but  it  would  come  loose  again  right 
away.  I  went  there  in  February  previous  to 
the  accident  I  couldn't  tell  how  often  I 
tightened  that  up  while  I  was  there.  My 
duties  were  such  that  I  didn't  have  time  to 
keep  watch  of  the  mangle  all  the  time.  I 
had  .other  work  to  do."  Similar  testimony 
was 'given  by  another  employfi,  Mrs.  Finch. 
She  testified  that  the  guard  frequently  be- 
came .  loose,  that  they  did  not  then  use  it 
un^  It  was  tightened,  and.  that,  when  it  be- 
(^me  ilOQse,  they  notified  the  superintendent, 
Mr.  Boyce.  It  .is  manifest  according  to  the 
evidence  on. the  part  of  the  plaintiff,  that,  if 
this  guard  had  been  set  at  the  proper  height 
from  the  mangle  board,  plaintiff's  fingers 
coQid  not  liave  reached  the  rollers.  Uad 
plaintifr.  worked  for  some  time  as  had  the 
plaintiff  in  the  recent  case  of  Butler  t.  Fraz- 
ee,^211  U.  S.  459,  20  Sup.  Ct  136,  63  L.  Ed. 
281,  she  undoubtedly  should  be  held  to  have 
assumed  the  risk.  But  she  had  no  informa- 
tipniPT. knowledge  of  the  defective  condition 


of  the  guard.  Her  experience  in  another 
laundry  with  another  machine  had  taught  her 
that  she  could  not  get  her  hands  past  the 
guard  and  into  the  rollers.  If  the  Jury  be- 
lieved the  testimony  of  plaintlfTs  witnesses, 
this  guard  was  seriously  defective  and  dan- 
gerous, and  neither  the  defect  nor  the  danger 
was  obvious  to  one  placed  to  work  upon 
the  machine  for  the  first  time.  No  complaint 
is  made  of  the  instruction  of  the  court  pro- 
vided there  was  a  case  for  the  consideration 
of  the  jury,  neither  could  there  be,  for  it  was 
exceedingly  clear  as  to  the  circumstances  un- 
der which  it  was  the  duty  of  defendant  to 
instruct  the  plaintiff  how  to  guard  against 
dangers  not  obviously  apparent,  under  what 
circumstances  plaintiff  assumed  the  risk,  and 
when  she  could  not,  and  as  to  the  negligence 
of  defendant  and  the  contributory  negligence 
of  the  plaintiff.  All  the  questions  of  fact 
were  properly  submitted  to  the  Jury. 
The  Judgment  is  affirmed. 


LUND  V.  SARGENT  MPO.  CO. 
(Supreme  Court  of  Michigan.    July  15,  1909.) 

1.  Masteb  and  Servant  ({  289*)— In-tdbiks 

TO    SebVaNT— CJONTBIBUTOBT    NsOUaENCS — 

Qdestjon  roB  Jubt. 

In  an  action  for  injuries  to  a  minor  servant 
by  his  hand  being  drawn  against  the  knives 
of  a  planer  by  the  suction  of  the  shaving  hood, 
aa  he  was  endeavoring  to  remove  a  knot  from 
between  a  roller  and.  the  bed  of  tlie  machine, 
whether  he  was  negligent  held  for  the  juiy. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  §f  1089-1132;  Dec.  Dig. 
i  289.»I 

2.  Masteb  and  Sebvant  (§  296*)— Injubies 

TO    SEBVANXMjONTBIBDTOBT    Neoliqence — 

iNSTBUonoNs— Modification. 

In  an  action  for  injuries  to  a  servant  less 
tlian  16  years  old,  while  removing  a  knot  from 
a  planer,  defendant's  negligence  was  estal)- 
lished  if  the  jury  found  that  plaintiff  was  em- 
ployed at'  a  work  dangerous  to  life  or  limb, 
while  plaintiff  was  not  negligent,  unless  he 
knew,  or  had  reason  to  believe,  that  the  suc- 
tion created  by  the  shaving  hood  made  it  im- 
prudent for  l>im  to  remove  the  knot.  Defend- 
ant requested  the  court  to  chaqpe  tliat,  if  plain- 
tiff's injury  was  the  result  of  defendant's  neg- 
ligence m  hiring  plaintiff  while  under  16  years 
of  age,  and  setting  him  at  work  dangerous  to 
life  or  limb,  still  he  was  not  entitled  to  a 
verdict  if  the  jury  found  that  he  was  guilty  of 
any  negligence,  "even  though  slight,"  which  con- 
tributed to  his  injury,  as  the  doctrine  of  com- 
parative negligence  was  not  recognized  in  this 
state.  Held,  that  a  modification  of  such  dtarge 
by  striking  tlie  words  quoted,  was  not  error. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Dec  Dig.  I  296.*] 

3.  Appeal  and  Erbob  (}  987*)  —  Vebdiot  — 
Beview. 

The  Supreme  Court,  on  writ  of  error,  will 

not  weigh  the  evidence  in  support  of  a  verdict. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 

Error,  Cent  Dig.  SS  3803-3896 ;.  Dec.  Dig.  S 

987.*] 

4.  Damages  (|  132*)  —  Pebsonai.  Injuries  — 

E3(CESSIVENESS. 

Plaintiff,  A  boy  less  than  16  years  of  age, 
was  employed  aa  oil  bearer  from  a  pony  planer. 


•F^fiiv^sr  cues.sM  same  topic  and  section  NUMBBR  in  Dec.  ft  Am^.J)isi.  UOT  to  data,  ft  jt^erter JUulezM 


Digitized  by  VjOOQ  l€ 


UldL) 


LUND  T.  8ABGENT  MFG.  CO. 


873 


While  attempting  to  remove  •  Imot  from  be- 
tireen  the  bed  of  tbe  planer  and  a  roller,  plain- 
tilfa  knuckle*  of  his  right  hand  were  bo  drawn 
against  the  knivea  that  the  middle  finger  was 
amputated,  the  third  finger  was  so  crooked  as 
to  interfere  with  the  normal  use  of  the  hand, 
and  the  first  and  fourth  fingers  cut,  but  not 
permanently  disabled.  Held,  that  a  verdict  for 
$2,947.60  was  not  so  excessive  as  to  require 
reversal. 

[Ed.  Note.— For  other  cases,  see  Damages, 
Cent  Dig.  n  872-385;    Dec  Dig.  i  132.*] 

Error  to  Circuit  Court,  Muskegon  County; 
Clarence  W.  Sessions,  Judge. 

Action  by  Sofus  Lund,  by  his  next  friend, 
against  tbe  Sargent  Manufacturing  Com- 
pany. From  a  Judgment  for  plaintiff  for  $2,- 
847.60v  defendant  brings  error.    Afflrmed. 

Argued  before  OBANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Fred  L,  Vandeveer,  for  appellant  Stephen 
H.  Clink,  for  appellee. 

.  OSTRANDER,  J.  At  tbe  time  the  plain- 
tiff was  injured  he  was  14  years  and  10 
months  old,  and  was  employed  in  the  factory 
of  defendant  to  "tail"  a  pony  planer.  In  the 
revolTlog  knives  of  the  planer  the  knuckles 
of  his  right  hand  were  cut  in  such  manner 
that  the  large  finger  was  amputated,  the 
third  finger  is  crooked,  and  interferes  with 
normal  use  of  the  band,  the  first  and  fourth 
fingers  were  cut,  but  not  permanently  dis- 
abled. He  had  been  In  the  employ  of  de- 
fendant about  three  weeks,  some  of  the  time 
tailing  the  large  planer.  His  duties  were 
simple.  As  boards,  one — the  upper— side  of 
which  was  planed  In  the  operation,  came 
through  the  machine,  he  took  them,  and  laid 
them  upon  a  truck  placed  behind  him.  The 
negligence  of  defendant  which  is  alleged  is 
the  employment  of  plaintiff  in  contravention 
of  Act  No.  118,  p.  167.  Pub.  Acts  1901,  {  3. 
A  motion  to  direct  a  verdict  for  defendant 
was  made  when  plaintiff  rested  his  case,  and 
a  similar  motion  was  made  at  tbe  conclusion 
of  the  proofs.  Both  were  denied.  A  motion 
for  a  new  trial  was  made,  and  was  denied. 
Proper  exceptions  were  taken  to  rulings,  and 
the  errors  assigned  and  relied  upon  present, 
and  counsel  have  argued :  (1)  That  plaintiff, 
as  matter  of  law,  was  guilty  of  contributory 
negligence.  (2)  That  defendant's  seventh  re- 
quest to  charge  should  have  been  given.  (3) 
That  a  new  trial  should  have  been  ordered 
because  (a)  the  verdict  was  against  the 
weight  of  evidence;  <b)  excessive  damages 
were  awarded.  These  matters  will  receive 
attention  In  the  order  stated. 

1.  It  is  the  claim  of  the  plaintiff,  and  his 
testimony  tends  to  prove,  that  he  was  Injur- 
ed while  attempting  to  remove  a  small  piece 
of  wood  which  bad  lodged  between  a  roller 
and  the  bed  of  the  machine.  He  supposed, 
he  says,  that  its  presence  would,  or  might, 
interfere  with  proper  operation  of  the  ma- 
chine, that  although  charged  with  no  duty  in 


that  regard,  he  ought,  in  tbe  Interest  ofbls 
employer,  to  remove  It,  and  that  he  sup- 
posed he  could  remove  It  without  danger  to 
himself.  He  appreciated  the  danger  of  ap- 
proaching his  hand  too.  closely  to  the  reyolv- 
Ing  knives  of  the  planer,  but  did  not  appre- 
ciate—was Ignorant  of— the  force  exested  by 
a  certain  apparatus  connected  with  a  hood 
placed  over  the-  knives,  which  sucked  or 
drew  into  a  pipe,  and  carried  away,  the  dust 
and  shavings  made  by  the  plaaer.t  •  In  de- 
scribing how  he  was  injured,  and  he.  Is  the 
sole  witness  for  plaintiff  upon  this  subject, 
he  says  that  as  he  approached  his  hand  to 
the  piece  of  wood,  which  he  describes  as  a 
knot  or  block  not  quite  the  size  of  a  silver 
dollar  in  circumference,  and  a  little  qiter 
an  inch  in  thickness,  which  lay  some  five 
Inches  from  the ,  nearest  point  reached  by 
the  knives,  and  somewhat  below  them,  his 
hand  was  suddenly  dravm  against  the  knives 
by  the  force  exerted  by  the  dust-colI^ctlng 
apparatus.  He  knew  there  was  some  force 
there,  because  he  saw  it  in  operation,  and 
bad  before  that  time,  when  the  knives  were 
not  revolving,  held  or  tossed  shavings  suf- 
ficiently near  it  to  have  them  drawn  Into 
the  pipe.  He  had  been  advised  of  no  dan- 
ger except  the  obvious  danger  of  coming  in 
contact  with  the  moving  machinery,  and, 
with  or  without  warning,  he  appreciated  the 
necessity  of  keeping  his  hands  away  from 
tbe  revolving  knives.  It  Is  contended  that 
the  case  is  ruled  by  Beghold  v.  Auto  Body 
Co.,  140  Mich.,  16,  112  N.  W.  691,  14  L  R.  A. 
(N.  S.)  609.  If  plaintiff  knew,  or  ought  to 
have  known,  that  the  dust  collector  exerted 
a  force  which  would  pull  or  suck  his  hand 
into  the  knives,  we  think  the  contention 
should  be  allowed.  Assuming  his  Ignorance 
of  this  danger.  It  cannot  be  said,  as  was 
said  of  the  plaintiff  in  that  case,  "he  was 
needlessly,  Inexecusably  careless."  What  he 
did  was  a  natural  thing  for  any  employ^  to 
do,  especially  was  It  tbe  natural  act  of  a 
bright  boy  less  than  16  years  old,  who  was 
Interested  in  his  employer's  affairs,  and  who 
supposed  he  could,  without  any  risk,  accom- 
plish what  be  sought  to  do.  If  he  had  been 
acquainted  with  the  dangerous  character  of 
the  act,  it  may  be  supposed  be  would  not 
have  attempted  it  The  question  of  plain- 
tiff's negligence  was  for  the  Jury. 

2.  Defendant's  seventh  request  was:  "If 
you  find  that  the  injury  which  plaintiff  re- 
ceived was  caused  as  a  result  of  the  negli- 
gence of  the  defendant  In  hiring  him  when 
under  the  age  of  16,  and  setting  him  at 
work  dangerous  to  life  and  limb,  still  you 
cannot  return  a  verdict  In  his  favor  If  you 
find  that  he  was  guilty  of  any  negligence, 
even  though  slight,  which  contributed  to  his 
Injury,  as  tbe  doctrine  of  comparative  negli- 
gence is  not  recognized  in  this  state."  The 
court  gave  tbe  instruction,  modified  by  the 
omission  of  the  words  "even  though  sUght" 


•Fw  etlier  c«m  me  lame  toplo  and  uctioD  NUMBER  la  Dec.  ft  Am.  Dlgi.  1907  to  date,  ft  Reporter  IndaxM 


Digitized  by 


Google 


371 


122  NORTHWESTERN  REPORTER. 


(Mich. 


-The  ciitkism  made  is  that  the  jury  might 
4mTe  concluded  that  they  were  permitted  to 
<-ompare  the  negUgem^  of  plaintiff  with  that 
of  defendant  In  the  same  connection  the 
court  said  to  the  Jury:  "Was  the  plaintiff 
himself  guUty  of  negligence  which  contrib- 
uted to  his  Injury?  If  he  was,  be  cannot 
recover,  and  yonr  verdict  will  be  for  the  de- 
fendant In  this  case."  The  court  had  prevl- 
oosly  Inatructed  them  that:  "Negligence  Is 
the  commission  or  omission  of  some  act  which 
a  reasonably  prudent  person  would  or  would 
not  have  done  under  like  and  similar  cir- 
cumstances." If  plaintiff  was  negligent,  it 
was  because  he  attempted,  as  he  did,  to  pick 
up  or  dislodge  the  knot  If  his  story  Is  be- 
ileved,  this  was  not  an  Imprudent  act,  unless 
tie  knew,  or  had  good  reason  to  believe,  that 
the  suction  created  by  the  fans  in  the  dust 
collector  made  It  imprudent  He  denies  such 
knowledge,  and  denies  that  he  was  Informed 
upon  the  subject  On  the  other  hand,  the 
defendant's  negligence  was  established  If  the 
jury  found' that  the  plaintiff  was  employed 
at  work  dangerous  to  life  or  limb.  Upon 
the  whole,  in  view  of  the  age  of  plaintiff, 
which  the  jury  had  the  right  to  take  into 
iiccount  we  think  the  charge  given  was  a 
better  statement  of  the  applicable  law  than 
it  the  omitted  words  had  been  used.  In  any 
event,  reversible  error  is  not  made  out. 

3.  If  our  judgment  were  to  be  formed  from 
the  testimony  of  the  witnesses,  we  should 
regard  the  correctness  of  the  ruling  refusing 
a  new  trial  as  most  doubtful.  The  weight 
of  evidence,  so  far  as  the  record  discloses  It 
appears  to  be  strongly  against  the  theory 
that  the  force  exerted  by  the  dust  collector 
Kucked  or  drew  plaintiff's  band  to  the  knives. 
But  it  appears  that  at  the  request  of  counsel 
for  both  parties  the  jury  visited  the  defend- 
ant's mill,  and  there  saw  the  planer  in  opera- 
tion, and  conducted  various  experiments. 
We  do  not,  and  cannot  know  how  these  ex- 
)>erlments  affected  the  judgment  of  the  ju- 
rors. It  Is  a  portion  of  the  testimony  sub- 
mitted to  them  which  we  cannot  weigh.  The 
damages  awarded  are  not  so  clearly  exces- 
sive as  to  require  a  reversal  of  the  Judgment 
and  a  new  trial. 

The  judgment  Is  affirmed. 


CH.\POTON  V.  HRENTIS  ct  al. 

UGHTNER  V.  SAME. 

(Supreme  Court  of  Michigan.     July  15,  lOOO.) 

Appeal  and  Ebbob  (J   150*)— Pabties   En- 
titled TO  Appeal. 

If  one  who,  aa  a  party  interested  in  the 
roal  estate  in  question,  thorgh  not  a  party  to 
the  suit,  is  entitled  to  apiienl  under  Pub.  Acts 
1(H)7,  p.  497,  No.  340,  regulating  the  practice 
iin  appeal  in  equity,  he  must  show  that  his  ti- 
tle was  not  acquired  after  the  litigation  was  l>e- 


gnn,  or  that  he  had  a  title  independent  from 
that  of  the  parties  to  the  litigation. 

[Ed.  Note. — For  other  oases,  see  Appeal  and 
Error,  Cent  Dig.  |f  934r.846;  Dec.  Dig.  f 
150.*] 

Appeal  from  Circuit  Court  Wayne  Coun- 
ty, in  Chancery;  Alfred  X  Murphy,  Judge. 

Action  by  Edmund  A.  Cbapoton,  as  execu- 
tor, etc.,  against  John  F.  Prentls  and  oth- 
ers. At  a  sale  made  under  a  decree  in  such 
action  Clarence  A.  Llghtner  purchased,  and 
petitions  for  a  writ  of  assistance.  From  an 
order  directing  the  issuance  of  the  writ 
Browse  T.  Prentis  appeals.    Affirmed. 

Argued  before  GRANT^,  MONTGOMERY. 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Browse  T.  Prentls,  in  pro  per.  Keena, 
Llghtner  &  Oxtoby,  for  appellee. 

GRANT,  J.  After  the  decision  in  this  case 
by  thU  court  (144  Mich.  283,  107  N.  W.  879), 
the  case  was  remanded  to  the  court  below 
for  further  proceedings  in  accordance  with, 
that  opinion.  The  defendant  John  F.  Pren- 
tis did  not  comply  with  that  decree,  and 
the  case  proceeded  to  a  decree  of  sale  there- 
under, and  Clarence  A.  Llghtner  became  the 
purchaser  at  said  sale.  The  sale  was  duly 
reported  to  the  court  was  confirmed,  and 
a  commissioner's  deed  duly  executed  and  de- 
livered to  Mr.  Llghtner  on  March  6,  1908, 
and  duly  recorded.  On  May  8,  1908,  Mr. 
Llghtner  caused  a  demand  for  the  posses- 
sion of  said  premises  to  be  made  upon  one 
Lawrence  Richard,  who  was  then  in  pos- 
session of  the  premises.  Mr.  Richard  re- 
fused to  surrender  possession,  claiming  that 
he  was  a  tenant  of  Browse  T.  Prentls. 
Thereupon  Mr.  Llghtner  filed  a  petition  for 
the  writ  of  assistance  against  Mr.  Richard 
on  October  26,  1908,  and  the  circuit  court 
In  chancery  entered  an  order  that  the  writ 
of  assistance  issue.  From  that  order  Browse 
T.  Prentls,  who  now  claims  to  own  the  prem- 
ises, claims  to  have  appealed.  The  record 
does  not  show  any  claim  of  appeal,  or  bond 
upon  appeal,  or  any  proceeding  looking  to 
an  appeal.  The  record  contains:  The  peti- 
tion of  Mr.  Llghtner  setting  forth  the  trans- 
actions since  the  former  decree  of  tliis  court; 
the  affidavit  of  one  Brown  who  made  the 
demand  upon  Mr.  Richard  in  behalf  of  Mr. 
Llghtner;  an  affidavit  of  Browse  T.  Prentis 
that  he  is  the  present  owner  of  the  land,  and 
that  Mr.  Richard  is  his  tenant  and  that  he  has 
filed  a  bill  In  the  circuit  court  In  chancery 
attacking  the  validity  of  Mr.  Llghtner's  title 
and  asserting  his  own;  the  affidavit  of  Mr. 
Richard  that  he  is  the  tenant  of  Mr.  Prentis, 
and  claims  no  other  rights  therein,  and 
denying  that  Mr.  Brown  exhibited  to  him  a 
deed  of  the  premises  or  an  order  of  the 
court,  and  that  he  did  not  demand  posses- 
sion; a  transcript  of  the  case,  signed  by 
Judge  Murphy,  reciting  that  the  petition  for 
the  writ  of  assistance  came  on  to  be  heard 


•For  otber  cues  iw  Mm*  topic  and  section  NUMBER  in  Dec.  *  Am.  Diss.  UOI  to  dnte,  4fc  Reporter  Indexot 


Digitized  by  LjOOQIC 


Minn.) 


MUNZKR  V.  PARKER. 


875 


October  26,  1908,  fhat  BrowM  T.  Prentls  ap- 
peared for  Mr.  Richard  for  the  purpose  of 
making  an  objection,  and  that  Prentls  fur- 
ther stated  that  if  he  had  the  right  to  ap- 
liear  for  any  one  else  he  did  so  appear,  that 
certain  affldavlts  were  read  and  order  made, 
and  a  copy  of  said  order.  But  the  record 
shows  no  appeal  to  this  court  Mr.  Llght- 
ner,  however,  has  treated  tht  case  as  though 
aa  appeal  were  duly  taken. 

When  the  original  suit  was  commenced 
by  Mr.  Chapoton,  a  lis  pendens  was  recorded 
In  the  office  of  the  register  of  deeds  on 
March  31,  1902.  The  connection  of  Mr. 
Browse  T.  Prentls,  the  present  alleged  own- 
er and  appellant,  with  the  case,  fully  appears 
in  the  opinion  in  144  Mich.,  107  N.  W.  It 
appears  by  that  suit  that  when  it  was  begun 
the  title  was  in  Jolin  F.  Prentls,  the  brother 
of  the  appellant  That  decree,  the  sale,  and 
the  deed  thereunder  are  binding  upon  the 
then  owner  and  all  those  who  subsequently 
obtained  an  interest  in  the  property.  Mr. 
Prentls  does  not  claim  that  he  obtained  any 
title  or  interest  in  the  property  prior  to  the 
Institution  of  that  suit  He  was  not  in  pos- 
session. If  as  a  party  interested  he  was 
entitled  to  take  an  appeal,  though  not  a  par- 
ty to  the  suit,  under  Act  No.  340,  p.  497,  Pub. 
Acts  1907,  It  was  his  duty  to  show  that  his 
title  was  not  acquired  after  this  litigation 
liegan,  or  that  he  had  a  title  independent 
from  that  of  the  parties  to  the  litigation. 
Otherwise  a  party  desiring  to  prolong  litiga- 
tion might  obtain  a  title  or  Interest  from  a 
party  to  the  suit  and  then  claim  an  appeal. 

The  decree  and  sale  were  binding-  upon 
the  parties  and  their  privies.  Mr.  Prentls 
should  have  shown  that  he  was  not  a  privy. 
Not  having  done  so,  he  is  clearly  not  entitled 
to  appeal  from  the  order  allowing  a  writ  of 
assistance. 

The  order  Is  affirmed,  with  costs. 


MUNZER  V.  PARKER. 
(Supreme  Court  of  Minnesota.    July  23,  1900.) 

1.  Laroi^bd  and  Tenant  (J  87*)— Lkasb— 
Habenduu  Repttgnant  to  Term  Obanted. 
Action  npon  a  written  lease  to  recover  the 
stipulated  rent  Defense  that  the  instrument 
was  void  for  nncertainty,  and  that  by  an  oral 
lease  the  lessor  agreed  to  make  certain  repairs 
which  were  not  made.  Findings  of  fact  and 
conclusions  of  law  in  favor  of  the  plaintiff. 

Held,  that  a  statement  in  the  habendum  of 
the  lease  repugnant  to  the  term  granted  is  void, 
that  the  lease  was  not  void  for  uncertainty,  that 
it  evidenced  the  sole  contract  of  the  parties, 
and,  further,  that  the  findinp  of  fact  and  con- 
clusions of  law  are  snstained  by  the  evidence. 

[Ed.  Note. — For  other  cases,  see  Landlord  and 
Tenant,  Dec.  Dig.  {  37.*] 

(Syllabus  by  the  Court) 
"i.  Landlobd  and  Tenant  (|  162*)— Leasb— 

COWSTBDCnON. 

It  cannot  be  held,  from  the  fact  that  it  was 
stated  parenthetically  in  the  lease  that  the  re- 
pair of  the  furnace  by  the  lessor  was  to  be  done 


by  a  person  named,  that  it  was  a  condition 
precedent  that  the  repair  should  be  made  by  tht 
person  named  and  no  one  else. 

[Ed.  Note.— For  other  cases,  see  liSiMllord  and 
Tenant  Dec.  Dig.  I  152.*] 

Appeal  from  Municipal  Court  of  Minneap- 
olis; C.  L.  Smith,  Judge. 

Action  by  Sadie  M.  Munzer,  against  A.  G- 
Parker.  Judgment  tor  plaintiff.  From  an 
order  denying  a  new  trial,  defendant  appeals. 
Affirmed. 

M.  A.  Jordan,  for  appelant  Jonas  Well, 
for  respondent 

START,  C.  J.  This  action  was  commenced 
In  the  municipal  court  of  the  city  of  Minneap- 
olis to  recover  three  months'  rent  claimed 
to  be  due  upon  a  written  lease  to  the  de- 
fendant of  the  plaintitTs  bouse  in  the  city 
of  Minneapolis.  The  complaint  alleged  that 
the  plaintiff  leased  the  premises  by  a  writ- 
ten lease  to  the  defendant  for  two  years, 
for  $35  a  month,  payable  on  the  Ist  day  or 
each  month,  and,  further,  that  the  rent  for 
the  months  of  December,  January,  and  Feb- 
ruary remained  unpaid.  The  answer  alleged 
that  the  only  written  lease  was  one  of  which 
a  copy  was  made  a  part  of  the  answer,  and 
that  it  was  void  for  uncertainty;  that  it 
was  a  condition  precedent  to  the  lease  go- 
ing into  effect  that  the  furnace  in  the  house 
should  be  repaired,  the  work  to  be  done  by 
F.  Moore,  upon  whose  workmanship  the  de- 
fendant relied,  the  dining  room  papered,  and 
the  kitchen  painted,  none  of  which  was  ever 
done  by  any  one;  and,  further,  alleged  a 
counterclaim  for  ^,  a  month's  rent  paid  in 
advance.  The  reply  admitted  that  one 
month's  rent  was  paid,  and  denied  the  other 
new  matter  in  the  answer. 

The  Issues  were  tried  by  the  court  without 
a  jury,  and  findings  of  fact  made  to  the  ef- 
fect following:  The  plaintiff,  on  October  10, 
1907,  leased  his  dwelling  bouse  to  the  de- 
fendant by  a  written  lease  executed  by  the 
parties  for  the  term  of  22  months  from  No- 
vember 1,  1907,  for  the  agreed  rent  of  |35  a 
month,  payable  on  the  Ist  day  of  each 
month;  tliat  the  plaintiff  agreed  to  fix  the 
furnace  and  paper  the  dining  rooni  prior  to 
November  1,  1007;  that  all  repairs  agreed 
to  be  made  by  the  plaintiff  were  substantially 
done  prior  to  the  date  named,  except  putting 
on  a  small  piece  of  molding  In  the  dining 
room,  and  that  he  complied  with  all  the 
conditions  on  his  part;  and,  further,  that 
the  rent  claimed  to  be  due  by  the  complaint 
had  not  been  paid.  The  conclusions  of  law 
were  to  the  effect  that  the  plaintiff  was  en- 
titled to  judgment  for  $105,  with  interest. 
The  defendant  appealed  from  an  order  deny- 
ing his  motion  for  a  new  trial. 

The  first  question  raised  by  the  defendant 
Is  that  the  written  lease  was  void  for  un- 
certainty; hence  evidence  of  an  oral  agree- 
ment as  to  the  extent  of  the  repairs  to  be 


•rot  otJur  eu«a  •••  i«m«  topic  and  ■•ctlon  NUMBER  In  Dao.  *  Am.  Diss.  IMT  to  data,  *  Raporttr  Ind«x«s 


Digitized  by 


Google 


376 


122  NORTHWESTERN  REiPORTBR. 


(Minn. 


made  wa^  admissible.  The  lease  was  dated 
and  executed  by  tlie  parties  on  October  19, 
1907,  and  thereby  the  party  of  the  first 
part,  the  plaintiff,  demised  the  house  to  the 
party  of  the  second  part  "for  the  terms  of  two 
years  from  September  1,  1907,  making  lease 
22  months,  from  October  31,  1907,"  "to  have 
and  to  hold  the  said  premises  Just  as  they 
are,  without  any  linblllty  or  obligation  on  the 
part  of  said  lessor  of  making  any  alterations, 
Improrements,  or  repairs  of  any  kind  on 
or  about  said  premises,  except  as  described 
below  only,  for  the  term  of  two  years  from 
November  1, 1907,  for  the  following  purposes, 
to  wit:  Famtly  dwelling.  Fix  the  furnace 
(work  to  be  dm^  by  F.  Moore).  Paper  the 
dining  room.  I^aintlng  the  house  in  spring 
(fire  words  inserted)."  It  is  quite  obvious  On 
the  face  of  the  lease  that  the  term  was  to 
expire  two  years  from  September  1,  1907, 
Instead  of  two  years  from  November  1,  1907 ; 
but,  as  the  lease  was  actually  executed  near- 
ly two  months  after  September  1st,  and  the 
rent  was  to  be  payable  on  the  1st  of  every 
month,  the  parties  to  the  lease,  to  make 
their  meaning  clear,  inserted  in  the  lease  the 
provision  to  the  effect  that  the  actual  term 
was  for  22  months,  beginning  on  November 
1,  1907.  In  view  of  this  express  provision 
as  to  the  term  granted,  it  Is  evident  that 
the  statement  In  the  habendum  clause  of  the 
lease  that  the  term  was  for  2  years  from 
November  1,  1907,  was  a  clerical  mistake,  and 
that  September  1, 1907,  was  Intended,  as  stat- 
ed In  the  granting  clause  of  the  lease,  and 
that  oral  evidence  was  properly  received  on 
the  trial  explaining  how  the  mistake  occur- 
red. Reeves  &  Co.  v.  Cress,  80  Minn.  466,  83 
N.  W.  443.  Again  it  appears  upon  the  face 
of  the  lease  that  the  term  was  for  22  months 
from  October  31,  1907,  as  stated  in  the  grant- 
ing clause  of  the  lease ;  for  the  statement  in 
the  habendum  of  the  lease  Is  on  its  face  re- 
pugnant to  the  term  granted,  and  therefore 
It  is  void.  4  Kent's  Comm.  468;  13  Oyc.  551. 
It  follows  that  the  written  lease  was  not 
void  for  uncertainty,  and  that  It  was  the 
only  contract  between  the  parties,  and  that 
the  only  repairs  which  the  plaintiff  was  obli- 
gated to'  make  before  the  lease  became  oper- 
ative were,  as  stipulated  in  the  lease,  these : 
"Fix  the  furnace  (work  to  be  done  by  F. 
Moore).  Paper  the  dining  room."  The  trial 
court  found  as  a  fact  that  the  plaintiff  did 
make  such  repairs  prior  to  Noveiiiber  1,  1907. 
The  defendant's  contention  is  that  this  finding 
is  not  sustained  by  the  evidence.  We  have 
explained  the  evidence  as  to  this  finding,  and 
we  are  of  the  opinion  that  it  is  sufficient  to 
sustain  the  finding.  It  is  a  fact  that  the 
furnace  was  not  repaired  by  Mr.  Moore,  but 
by  another  party.  This,  however,  was  not 
a  substantial  part  of  the  contract;  for  the 
essential  matter  was  that  the  furnace  should 
be  repaired.  It  cannot  be  held,  from  the 
fact  that  it  was  stated  parenthetically  in  the 


lease  "work  to  be  done  by  F.  lioore,"  that  It 
was  a  condition  precedent  that  the  repair 
should  be  made  by  him,  and  no  one  else,  even 
if  he  were  111  or  dead,  or  declined  for  any 
cause  to  do  the  work. 

The  other  assignments  of  error  made  by 
the  defendant  are  without  merit,  in  view  of 
the  fact  that  the  written  lease  is  valid  and 
the  only  contract  between  the  parties,  what-, 
ever  might  have  been  the  case  If  the  written 
lease  were  void. 

Order  affirmed. 


CASEZ  V.  MISSISSIPPI  &  RUM  RIVER 

BOOM  CO. 

(Supreme  Coart  of  Minnesota.    July  23,  1909.) 

1.  Navigablb  Waters  (S  39*)— Floatage  of 
Loos — Injuries  to  Riparian  Owners. 

Action  to  recover  damages  to  the  farm  of 
the  plaintiff,  a  riparian  owner,  by  reason  of  its 
overflow,  alleged  to  have  been  caused  by  the 
negligent  acts  of  the  defendant  in  the  control  of 
logs  m  the  Mississippi  river  In  connection  with 
its  booms  and  piers  therein,  at  Durham's  Island. 
Verdict  for  the  plaintiff.  Held,  Sp.  Laws  1862, 
p.  300,  c.  86)  {  15,  providing  that  a  committee 
of  log  owners  ^all  determine  the  time  when  logs 
shall  be  turned  out  of  the  booms,  does  not  ab- 
solve the  defendant  from  the  duty  to  exercise  due 
care  in  controlling  the  movements  of  logs  in  the 
river  in  connection  with  its  booms,  so  as  to  pre- 
vent injury  thereby  to  riparian  owners. 

[Ed.  Note. — For  other  cases,  see  Navigable 
Waters,  Dec  Dig.  {  39.*] 

2.  Navigable  Waters  (|  39*)  —  Ripariah 
Owners— Booms. 

The  defendant,  as  against  the  public,  has 
the  right,  by  virtue  of  its  charter,  to  obstruct 
the  river  with  such  structures,  and  to  maintain 
and  operate  them,  as  are  necessary  to  enable  it 
to  discbarge  its  duty  to  the  public  as  a  carrier 
of  logs  in  the  river;  but  it  has  no  right  to  do 
this  80  as  to  overflow  and  damage  the  land  of 
riparian  owners,  without  compensation. 

[Ed.  Note.— For  other  cases,  see  Navigable 
Waters,  Dec.  Dig.  {  39.»] 

3.  Navigable  Waters  (§  39*)  —  Riparian 
Owners— Booms— Actions— Sufficiency  of 
Evidence. 

The  trial  court  did  not  err  in  Its  instruc- 
tions to  the  jury,  the  verdict  is  sustained  by  the 
evidence,  and  the  award  of  damages  is  not  ex- 
cessive. 

[Ed.  Note.— For  other  cases,  see  Navigable 
Waters,  Dec.  Dig.  {  39.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Anoka  Coun- 
ty;  Arthur  E.  GIddlngs,  Jndge. 

Action  by  James  Casey  against  the  Missis- 
sippi  &  Bum  Blver  Boom  Company.  Ver- 
dict for  plaintiff.  From  an  order  denying  its 
motion  for  Judgment  notwithstanding  the 
verdict  or  for  a  new  trial,  defendant  appeals. 
Affirmed. 

Dodge  &  Tautges,  for  appellant  Will  A. 
Blanchard  and  G.  H.  Wyman,  for  respond- 
ent 

START,  G.  J.  This  is  an  appeal  from  an 
order  of  the  district  court  of  the  county  of 
Anoka  denying  the  defendant's  alternative 


•For  otber  exei  mo  same  topic  and  •ectlon  NUMBER  In  Dec.  &  Am.  Diss.  U07  to  data,  *  Raporttr  Indexes 


Digitized  by 


Google 


Ulnn.) 


0A8ET  ▼.  KI8SISSIPPI  A. BUM  BIYBB  BOOM  CO. 


877 


motion  (or  Jndsment  or  for  a  new  trlaL  The 
complaint  alleged  two  canses  of  action.  The 
lint  one  was  for  the  recovery  of  damasea 
for  permanent  Injuries  to  the  farm  of  the 
plaintiff  by  the  waslilng  away  of  2  acres 
thereof  by  reason  of  the  alleged  negligent 
acts  of  the  defendant.  The  second  one  was 
for  the  recovery  of  damages  for  the  loss  of 
the  use  of  40  acres  of  the  farm  during  the 
year  1907,  by  reason  of  snch  acts  of  the  de- 
fendant There  was  a  verdict  for  the  plain- 
tiff for  washing  away  of  tlie  bank  of  his 
farm,  |100,  and  for  the  loss  of  the  use  of 
the  farm,  1450. 

1.  The  first  contention  of  the  defendant  Is 
that  there  is  no  evidence  to  sustain  the  ver- 
dict as  to  either  alleged  cause  of  action. 
The  evidence  tends  to  show  that  the  plain- 
tiff, in  the  year  1907,  was  in  possession  of  a 
farm  bordering  on  the  river  Mississippi,  some 
three  or  four  miles  above  Durham's  Island; 
tliat  he  was  a  lessee  of  a  part  of  the  farm 
and  in  possession  of  the  balance,  claiming  to 
he  the  owner  thereof.  It  is  admitted  that 
the  defendant  constructed  and  has  maintain- 
ed for  many  years  extensive  works,  consist- 
ing of  booms,  piers,  and  pilings.  In  the  river, 
at  the  Island,  to  facilitate  the  floating  and 
driving  logs  therein,  as  authorized  by  its 
charter.  The  evidence  also  tends  to  show 
that  the  piers  and  booms  so  constructed  by 
the  defendant  extend  entirely  across  the 
river,  from  the  easterly  shore  below  the  foot 
of  the  Island  to  the  westerly  shore  at  the 
north  thereof;  that  late  in  the  fall  of  1906 
the  defendant  drove  large  quantities  of  logs 
down  the  river,  which  were  lodged  In  the 
boom  at  Durham's  Island;  that  the  logs 
filled  the  river  full,  from  bank  to  bank,  from 
the  sorting  gap  below  the  island  for  a  long 
distance  above  it;  that  the  logs  made  a  solid 
jam  or  pack  entirely  across  the  river,  so  that 
any  logs  or  ice  floating  down  the  river  would 
lo^e  upon  the  Jam  or  pack  of  logs  and  re- 
main th»re;  that  on  March  27,  1907,  when 
the  ice  and  logs  came  down,  they  formed  a 
Jam  upon  the  pack,  which  extended  up  to 
the  plaintiff's  farm;  that  by  reason  of  the 
Jam  so  formed  the  water  In  the  river  at  or 
near  the  farm  of  plaintiff  rose  in  a  short 
time  more  than  nine  feet;  and,  further,  that 
such  rise  of  the  water,  so  caused,  resulted 
in  forcing  the  water  back  over  the  plaintiff's 
farm,  carrying  therewith  large  Quantities  of 
the  logs  and  river  debris,  whereby  the  farm 
was  washed  and  damaged  to  some  material 
extent  There  was  neither  evidence  nor 
claim  on  the  part  of  the  plaintiff  that  the 
works  were  Improperly  constructed  or  main- 
tained. It  is  the  claim  of  the  defendant  that 
It  had  no  control  of  the  movement  of  the 
logs  in  the  river  above  its  works,  but  that 
such  control  was  vested  absolutely  In  the 
owners  of  the  logs,  and  that  the  concession 
of  the  defendant  to  the  contrary  in  the  case 
of  Mandery  v.  Boom  Co.,  lOS  Minn.  3, 116  N. 
W.  1027,  1136,  was  inadvertently  made. 

This  claim  Is  based  upon  section  15,  c.  86, 


p.  300,  Sp.  Laws  1862,  providing  for  a  com- 
mittee of  log  owners,  who  shall  determine 
the  times  of  turning  logs  out  of  the  boom. 
This  statute  cannot  be  construed  as  reliev- 
ing the  defendant  as  a  carrier  of  logs  in  the 
river,  from  exercising  due  care  in  controlling 
the  movonents  of  logs  In  the  river  and  there- 
by preventing  the  accumulation  of  logs  in 
the  bed  of  the  stream  above  Its  works  at  the 
close  of  navigation,  so  as  to  form  a  de- 
structive Jam  when  the  spring  floods  come. 
Mandery  v.  Boom  C!o.,  105  Minn.  8,  116  N. 
W.  1027,  1135.  This  seems  to  be  the  view 
of  the  defendant,  for  Its  manager  testified 
as  a  witness  at  the  trial  as  follows:  "Q.  It 
acts  simply  as  a  carrier  of  logs?  A.  Tes. 
sir.  Q.  And  they  have  to  take  care  of  all 
the  logs  placed  In  the  river?  A.  Yes,  sir. 
Q.  Does  the  boom  company  have  any  control 
over  the  time  when  the  logs  are  to  be  deliv- 
ered to  it?  A.  No,  sir."  Or,  In  other  words, 
the  boom  company  has  no  control  over  the 
time  the  logs  are  to  be  delivered  to  it,  but 
It  must  take  care  of  them  after  they  are  once 
placed  in  the  river.  The  reason  assigned  by 
the  defendant  as  testified  to  by  its  manager, 
for  the  accumulation  of  logs  at  Its  Durham 
Island  works  when  the  river  froze  up  in  the 
fall  of  1906,  .was  that  owing  to  the  rising 
of  the  river  late  In  the  fall  the  logs  came 
down  faster  than  they  could  be  sorted,  and 
that  all  were  sorted  that  It  was  possible,  but 
they  came  down  too  late  to  sort  all  of  them. 

The  rights  of  the  defendant  In  the  river 
and  its  liability  to  riparian  owners  for  in- 
Jury  to  their  land  by  its  acts  have  been  so 
often  before  this  court  that  it  is  unnecessary 
to  discuss  the  questions.  The  defendant  as 
against  the  public,  has  the  right,  by  virtue 
of  its  charter,  to  obstruct  the  river  with 
all  reasonably  necessary  plies,  booms,  and 
structures  to  enable  it  to  discharge  Its  duty 
as  a  carrier  of  logs  in  the  river,  and  to  main- 
tain and  operate  them;  but  it  has  no  legal 
right  to  do  this  so  as  to  overflow  and  damage 
the  land  of  a  riparian  owner,  without  first 
acquiring  the  right  and  making  compensation 
therefor.  Weaver  v.  Boom  Co.,  28  Minn.  534, 
11  N.  W.  114;  McKenzle  v.  Boom  Co.,  29 
Minn.  288,  13  N.  W.  123;  Hueston  v.  Boom 
Co.,  76  Minn.  251,  79  N.  W.  92;  Bowers  v. 
Boom  Co.,  78  Minn.  308,  81  N.  W.  208,  79 
Am.  St  Bep.  395 ;  Mandery  v.  Boom  Co.,  105 
Minn.  3,  116  N.  W.  1027,  1135.  The  basis 
of  Its  liability  to  riparian  owners  in  such 
cases  is  not  necessarily  negligence  in  the  con- 
struction of  the  obstructions  In  the  stream; 
hence  the  concession  in  this  case  that  the  de- 
fendant's works  were  properly  constructed 
Is  not  here  relevant 

The  claim  of  the  plaintiff,  briefiy  stated, 
is  that  the  defendant  by  the  exercise  of  ordi- 
nary care  might  have  prevented  the  accumu- 
lation of  such  a  body  of  logs  at  Its  works  at 
the  island,  at  the  time  the  stream  froze  up, 
as  did  accumulate  there,  and  that  it  might 
have  reasonably  anticipated  that  this  would 


•Digitized  by  VjOOQIC 


r.78 


122  XOKTHWESTERN  REPORTER. 


(X.  D. 


be  liable  to  cause  such  a  Jam,  wben  the 
spring  freshets  came,  as  wonld  be  liable  to 
iujure  others,  especially  riparian  owners. 
The  claim  of  the  dtfendant  was  to  the  effect 
that  the  injury  of  the  plaintiff's  farm,  if  any, 
was  not  due  to  any  act  or  omission  on  Its 
part,  but  to  on  extraordinary  and  sudden 
rise  of  the  stream  early  in  the  spring.  The 
trial  couit  submitted  the  respective  claims 
of  the  parties  to  the  Jury.  The  defendant  in- 
sists there  was  no  evidence  of  want  of  care 
on  Its  part;  but  a  consideration  of  the  evi- 
dence leads  as  to  the  conclusion  that  the  evi- 
dence was  sufficient  to  take  the  case  to  the 
Jury,  and  that  it  is  sufficient  to  sustain  a  ver- 
dict for  the  plaintiff  in  some  amount.  The. 
defendant's  motion  for  Judgment  was  proper- 
ly denied. 

2.  The  next  group  of  assignments  of  error 
relate  to  the  rulings  of  the  trial  court  as  to 
the  admission  of  evidence.  There  are  a 
dozen  or  more  of  them,  of  which  counsel  for 
the  defendant  only  says:  "It  would  seem  to 
te  unnecessary  to  argue  these  several  assign- 
ments in  detail,  or  to  dte  authorities.  We 
submit  them  for  the  consideration  of  the 
court  without  further  argument"  This  is 
simply  a  reiteration  of  the  assignments  of 
error,  and  is  a  waiver  of  the  assignments. 
We  decline  to  consider  them.  Peterson  v. 
City  of  Red  Wing,  101  Minn.  82,  111  N.  W. 
840. 

3.  The  defendant  urges  several  alleged  er- 
rors In  the  charge  of  the  court  to  the  Jury. 
The  Instructloas  complained  of  were  to  the 
effect  that  the  plaintiff  Claimed  that  the  de- 
fendant, having  knowledge  of  the  history  of 
the  river,  was  bound  to  take  notice  of  the 
ordinary  operation  of  the  law  of  nature  in 
the  going  out  of  the  ice  in  the  river  when  It 
lireaks  up  In  the  spring,  and  to  exercise  ordi- 
nary care  to  prevent  Injury  from  the  water, 
!c«,  and  logs,  when  the  ice  breaks  in  the 
spring;  that  it  Is  the  claim  of  the  plaintiff 
that  the  defendant  was  negligent  in  allowing 
a  large  quantity  of  logs  to  accumulate  at  its 
works,  and  to  remain  there  during  the  fall 
.ind  winter;  and.  further,  that  it  was  not 
the  intention  of  the  court  to  exclude  from 
the  consideration  of  the  Jury  any  act  of  neg- 
ligence by  the  defendant  in  allowing  logs  to 
accumulate  and  Jam  on  the  piers  and  booms 
iit  the  head  of  the  Island  in  1006,  and  to  re- 
main there  during  the  winter.  The  defend- 
.-int's  objections  to  these  instmctlons  are  that 
tlicre  was  no  evidence  tending  to  support  the 
plaintiff's  claims;  that  the  defendant's  works 
nt  the  Island  were  necessarily  permanent 
:ind  essential  to  enable  it  to  carry  out  the 
purposes  for  which  it  was  organized;  and, 
further,  that  the  defendant  bad  no  control 
rtver  the  number  of  logs  or  the  time  when 
tlioy  should  be  placed  in  the  river  or  releas- 
ed from  bondage  at  its  various  booms  above 
the  plaintiff's  land.    In  view  of  the  legal  du- 


ty and  liability  of  the  defendant  to  riparian 
owners-  for  damages  caused  by  the  placing  of 
their  piers  and  booms  in  the  river,  and  the 
evidence  in  tliia  case,  to  wlilch  reference  has 
been  made,  we  are  of  the  opinion  tliat  it  was 
not  error  to  give  the  Instructions  complain- 
ed of. 

4.  The  last  contmtlon  of  the  defendant  is 
that  the  damages  awarded  are  excessive. 
The  evidence  Justices  the  conclusion  that 
they  are  liberal,  but  not  so  clearly  excessive 
as  to  Justify  any  interference  with  the  ver- 
dict in  this  respect. 

Order  affirmed. 


KIDDER  V.  BARNES  et  al. 

(Supreme  Court  of  North  Dakota.     Jnne  17. 

1009.     Rehearing  Denied  July  1.  1909.) 

MoBTOAOEs  (S   181*)  —  PaiOBrriM  —  CiBcmi - 
STANCES  ArrBcriNO— DiBCHABOE  or  Pbiok 

MOBTOAOE. 

B.  and  son  were  indebted  to  plaintiff  in 
the  sum  of  $40,000,  part  of  which  was  secured 
by  a  mortgage  on  lands  in  North  Dakota  and 
Minnesota,  and  part  of  which  hidebtedness  was 
unsecured.  Being  desirous  of  dividing  this  in- 
debtedness, B.  and  son  made  arrangements  with 
plaintiff,  by  the  terms  of  which  B.  assnmed 
$24,500  of  said  indebtedness,  which  he  secured 
by  a  mortgage  on  land  in  North  Dakota.  The 
son  assnmed  |15,500  of  said  indebtedness,  which 
he  secured  by  a  mortgage  on  the  Minnesota 
lands. 

Plaintiff  canceled  and  surrendered  up  the 
old  notes  and  executed  a  satisfaction  of  the 
mortgage  on  the  Minnesota  lands,  but  did  not 
execute  any  satisfaction  of  the  old  mortgage  on 
the  North  Dakota  lands.  Held,  under  the  evi- 
dence in  this  case,  that  the  old  indebtedness  was 
paid  and  canceled,  and  the  North  Dakota  lands 
were  released  from  the  lien  of  said  mortgage 
executed  by  B.  and  son. 

After,  the  execution  of  the  first  mortgage  by 
B.  and  son  to  plaintiff,  and  before  the  execution 
of  the  second  mortgage  by  B.  to  plaintiff,  he 
executed  a  mortgage  to  W.  H.  &  G.  on  one 
quarter  section  of  the  North  Dakota  land. 
Held,  that  such  mortgage  was  prior  and  su- 
perior to  plaintiff's  mortgage. 

[Ed.  Note. — For  other  cases,  see  Mortgages. 
Cent.  Dig.  I  435;   Dec  Dig.  {  181.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Richland  (boun- 
ty ;  Frank  P.  Allen,  Judge. 

Action  by  WiUard  Kidder  against  Greorge 
B.  Barnes  and  wife,  Williams,  Hallett  &  Grls- 
wold,  and  others.  Judgment  for  plaintiff, 
and  defendants  Barnes  and  wife  and  Wil- 
liams, Hallett  &  Grlswold  appeal.  Modi- 
fled  and  affirmed. 

Engerud,  Holt  &  Frame  and  B.  D.  Town- 
send,  for  appellants.  Purcell  &  Dlvet,  F.  P. 
Lane,  and  Mr.  Nantz,  for  respondent. 

CARMODT,  3.  This  is  an  appeal  by  de- 
fendants from  a  final  Judgment  In  a  foreclo- 
sure suit.  Appellants  seek  a  retrial  of  thi> 
whole  case.  The  complaint  alleges,  In  sub- 
stance, that  defendants  George  B.  Barnec. 
Sr.,   and   wife  and  George  B.   Barnes,  Jr.. 


•For  other  cases  sea  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1(07  to  date,  ft  Rvortar  Indexes 


Digitized  by  LjOOQIC 


N.  D.) 


KIDDER  V.  BARNES. 


379 


and  wife,  gave  a  mortgage  to  plaintiff,  dat- 
ed November  1,  1889,  upon  lands  describ- 
ed lu  the  complaint  and  also  upon  'certain 
lands  In  Wllldn  county,  Minn.,  to  secure  a 
debt  of  $24,000  evidenced  by  five  joint  and 
•several  notes  of  said  mortgagors  to  plaintiff 
bearing  even  date  with  the  mortgage.  After- 
wards, on  May  23,  1904,  these  notes  eviden- 
cing said  mortgage  debt  were  canceled  and 
surrendered  pursuant  to  an  agreement  of  the 
parties  thereto,  but  the  indebtedness  and 
mortgage  remained  In  full  force  and  effect; 
that  pursuant  to  the  same  agreement  Oeorge 
B.  Barnes,  Sr.,  and  wife  executed  to  plaintiff 
on  May  27,  1901,  four  notes  aggregating  $24,- 
.jOO  in  evidence  of  said  mortgage  debt  in  lieu 
of  the  old  notes,  and  also  executed  a  mort- 
sage  further  securing  the  same  upon  the 
North  Dakota  land  described  in  the  previous 
mortgage  and  certain  additional  lands. 
Plaintiff  prays  for  a  personal  Judgment 
against  George  B.  Barnes,  Sr.,  and  wife,  and 
for  a  decree  of  foreclosure.  George  B. 
Barnes,  Sr.,  and  wife  plead  that  the  debt  and 
mortgage  of  November  1, 1899,  was  fully  paid 
and  satisfied  by  the  new  notes  and  mortgage 
of  May  27,  1904,  and  that  the  latter  mortgage 
and  debt  was  thereafter  paid  and  discharged 
on  or  about  January  7,  1905,  by  an  executed 
agreement  made  with  plaintiff  whereby  said 
mortgagors  conveyed  and  released  to  one 
Clinton  B.  Kidder  all  the  mortgaged  lands 
and  other  property  (real  and  personal).  They 
counterclaim  for  the  recovery  of  $G00  which 
they  allege  plaintiff  agreed  to  pay  them  in 
connection  with  the  transfer  above  mention- 
ed. WllUams,  Hallett  k  Grlswold  plead  that 
they  hold  a  mortgage  on  the  southwest  quar- 
ter of  section  32,  township  132,  range  52, 
Richland  county,  given  by  said  George  B. 
Barnes,  Sr.,  and  wife  on  February  18,  1902, 
and  duly  recorded,  securing  a  debt  of  $1,800. 
They  allege  the  discharge  and  satisfaction  of 
plaintiff's  mortgages  as  pleaded  by  Barnes. 
They  further  plead  in  the  form  of  a  counter- 
<-laim  the  existence  of  the  lien  of  their  mort- 
;{age,  and  pray  for  a  Judgment  establishing 
the  same  as  a  lien  superior  to  any  lien  or 
claim  of  the  plaintiff.  The  reply  is  a  general 
deniaL  The  Issues  were  tried  to  the  court 
ivitbout  a  Jury,  and  resulted  in  findings  and 
Judgment  substantially  in  accord  with  the  al- 
legations and  prayer  of  plaintiff's  complaint, 
except  that  no  personal  Judgment  was  ren- 
•lered  against  George  B.  Barnes  and  wife  or 
either  of  them. 

The  findings  and  Judgment  dismissed  the 
counterclaim  of  said  Barnes  and  wife.  The 
plaintiff,  Willard  Kidder,  lived  in  Indiana, 
and  had  for  many  years  been  an  intimate 
friend  of  George  B.  Barnes,  Sr.,  and  his 
ramlly.  Barnes,  Sr.,  was  a  clergyman  liv- 
ing at  Campbell,  Minn.  He  and  bis  son, 
George  B.  Barnes,  Jr.,  owned  and  farmed  a 
large  quantity  of  land  near  W^ndmere, 
known  as  the  "Wyndmere  property."  It  was 
equipped  with  the  necessary  horses,  cattle, 
and  machinery.    They  also  owned  a  section 


or  more  of  land  in  Wilkin  county,  Minn., 
near  Campbell,  known  as  the  "Campbell 
property."  Plaintiff  had  been  for  some  years 
lending  financial  assistance  to  Barnes  &  Son, 
and  on  November  1,  1899,  the  latter  with 
their  respective  wives  Jointly  executed  to 
Kidder  five  notes  dated  that  day,  aggregating 
$24,000.  These  notes  are  in  evidence.  To 
secure  these  notes  the  two  Barneses,  father 
and  son,  and  their  wives,  gave  the  mort- 
gage in  suit,  dated  November  1,  1899,  cover- 
ing the  Campbell  and  Wyndmere  properties. 
Said  mortgage  was  subject  to  prior  incum- 
brances against  the  different  tracts  described 
in  it  One  of  these  tracts  was  the  south- 
west quarter  of  section  32  In  township  132, 
range  62.  The  title  to  this  tract  was  at  that 
time  in  the  Howard  Benevolent  Society. 
Barnes,  Sr.,  merely  had  a  contract  for  the 
purchase  thereof  upon  which  there  was  then 
unpaid  about  $2,000.  Barnes,  Sr.,  obtain- 
ed a  d^  for  this  land  in  March,  1902.  At 
the  time  of  obtaining  this  deed  he  mort- 
gaged the  land  to  defendants  Williams,  Hal- 
lett &  Grlswold  for  $1,800.  The  mortgage 
was  dated  and  executed  February  18,  1902, 
and  was  recorded  before  the  deed  to  Barnes 
was  recorded,  March  15, 1902.  The  proceeds 
of  this  loan  were  used  to  pay  up  the  balance 
due  on  the  contract  so  as  to  enable  Barnes 
to  get  the  deed  of  the  land.  In  the  spring 
of  1904  Barnes  and  bis  son  desired  to  cease 
doing  business  Jointly,  and  agreed  that  the 
son's  share  of  the  property  should  be  set  off 
to  him  subject  to  his  share  of  the  incum- 
brances. Plaintiff,  as  a  friend  of  the  family 
and  creditor,  was  called  in  to  assist  in  this 
settlement  between  father  and  son.  In  the 
settlement  the  Campbell  property  was  as- 
signed to  George  B.  Barnes,  Jr.  The  Wynd- 
mere properties  were  retained  by  Barnes, 
Sr.  This  settlement  was  made  at  Wahpc- 
ton,  and  was  completed  May  27,  1904.  At 
that  time  the  debt  to  plaintiff  secured  by 
the  mortgage  of  November  1,  1899,  was  whol- 
ly impaid,  and  anfouuted  with  accrued  in- 
terest to  $32,694.75.  Barnes  and  sou  also 
then  owed  plaintiff  three  unsecured  notes 
amounting  at  that  time  to  the  sum  of  $7,864.- 
43.  Thus  the  total  debt  due  plaintiff  from 
Barnes  and  son,  secured  and  unsecured,  ag- 
gregated $40,559.18.  Plaintiff  discounted  this 
$559.18,  making  the  total  debt  $40,000,  and 
this  debt  wa^  then  apportioned  between 
Barnes  and  his  son  in  the  ratio  of  about 
60  per  cent,  to  the  father  and  about  40 
per  cent,  to  the  son.  The  father  assumed 
$24,500  thereof,  and  was  released  from  $15,- 
500.  The  son  assumed  $15,500,  and  was 
released  from  the  remainder.  Notes  were 
then  executed  by  the  father  and  son  sepa- 
rately for  their  respective  portions  of  the 
old  debt.  Barnes,  Sr.,  then  gave  plaintiff  a 
mortgage  on  the  North  Dakota  lauds  to 
secure  the  new  notes  amounting  to  $24,500. 
This  new  mortgage  Included  all  the  North 
Dakota  land  covered  by  the  mortgage  of  No- 
vember 1,   1899,  and  also  some  additional 


Digitized  by  VjOOQ  l€ 


380 


122  NORTHWESTERN  REPORTER. 


0X.D. 


tracts.  It  recited  that  It  was  snbject  to 
certain  prior  Incumbrances.  Upon  the  con- 
sammation  of  this  settlement,  plaintiff  can- 
celed and  surrendered  to  the  makers  all  the 
old  notes  evidencing  the  old  debt,  both  se- 
cured and  unsecured.  The  Campbell  prop- 
erty was  released  from  the  old  mortgage  to 
plalntlfl  on  November  1,  1899.  This  settle- 
ment and  rearrangement  of  securities  was 
made  without  the  knowledge  or  consent  of 
Williams,  Hallett  &  Grlswold.  The  financial 
affairs  of  Barnes,  Sr.,  which  had  apparently 
been  In  a  bad  way  for  some  time,  went 
from  bad  to  worse  until  In  the  latter  part 
of  1904  his  situation  became  utterly  hope- 
less. Chattel  mortgages  were  being  fore- 
closed and  attachments  were  levied,  and 
Barnes  contemplated  bankruptcy  proceed- 
ings. At  this  crisis  Barnes  again  turned  to 
plaintiff  for  advice  and  assistance;  the  ob- 
ject, as  claimed  by  Barnes,  being  to  pro- 
tect plalntlfl  as  much  as  possible  and  Inci- 
dentally save  Barnes  from  the  loss  and  annoy- 
ance of  bankruptcy  proceedings.  As  a  result 
of  a  conversation  between  plaintiff  and 
Barnes  in  Indiana,  Clinton  B.  Kidder,  a  son 
of  plaintiff,  was  sent  to  Wahpeton  to  act 
for  and  represent  his  father  In  the  adjust' 
ment  of  his  affairs  with  Barnes,  Sr.  Clinton 
B.  Kidder  went  to  Wahpeton  In  December, 
1904,  accompanied  by  Mr.  Nantz,  a  lawyer 
from  Indiana,  and  Mr.  Lane,  a  lawyer  from 
Minneapolis.  George  B.  Barnes,  Sr.,  and 
wife  conveyed  aU  the  mortgaged  lands  to 
Clinton  B.  Kidder,  and  executed  to  him  a  bill 
of  sale  of  all  the  personal  property  on  the 
Wyndmere  farm.  Also,  according  to  the  tes- 
timony of  Clinton  B.  Kidder,  Barnes  agreed 
to  turn  over  to  him  a  lease  of  a  farm 
in  Sargent  county,  known  as  the  "Bilstad 
farm"  on  which  lease  there  was  two  years' 
unexpired  term.  Clinton  B.  Kidder  redeem- 
ed the  personal  property  from  the  chattel 
mortgage  sales  and  attachments,  and  took 
possession  thereof  and  of  aU  the  lands,  and 
has  had  the  possession  and  use  thereof  since 
about  January  5,  1905,  up  to  the  time  of  the 
trial  of  this  action  on  the  13th  day  of  April, 
1906.  When  the  lands  were  conveyed  and 
chattels  sold  to  Clinton  B.  Kidder,  defendants 
Barnes  and  wife  claim  that  be  agreed  to  ad- 
vance (1,200  In  cash  to  be  used  In  paying  cer- 
tain of  Barnes'  local  debts.  Six  hundred  dol- 
lars of  this  sum  was  not  to  be  repaid  by 
Barnes  and  wife.  The  other  $600  was  to  be  re- 
paid, and  was  treated  as  a  loan,  Barnes  to  give 
his  notes  therefor.  The  defendants  claim  that 
the  real  and  personal  property  was  sold  and 
conveyed  to  Clinton  B.  Kidder  as  the  agent 
or  trustee  and  representative  of  his  father 
in  full  payment  and  satisfaction  of  the  mort- 
gage debt  and  subject  to  all  incumbrances 
thereon.  They  also  claim  that  the  transac- 
tion In  May,  1904,  was  a  satisfaction  and 
discharge  of  the  debt  and  mortgage  of  No- 
vember 1,  1899.  They  also  claim  that  the 
Williams,  Hallett  &  Grlswold  mortgage  was 
a  prior  lien  to  any  lien  of  plaintiff.     De- 


fendant Barnes  and  wife  claim  that  plaintiff 
owes  then!  (600  and  interest  on  account  of 
his  son's  alleged  promise  to  pay  that  sum  In 
consideration  of  the  -  conveyance  and  bill  of 
sale  in  Jansary,  1905. 

The  evidence  In  this  case  la  very  volumi- 
nous. Much  of  It  is  incompetent  We  think 
the  evidence  shows  that  all  the  indebtednes.s 
of  George  B.  Barnes,  Sr.,  and  wife  and 
George  B.  Barnes,  Jr.,  and  wife  was  settled 
and  canceled  by  the  transactions  in  May, 
1904.  The  undisputed  evidence  shows  that 
by  the  terms  of  that  transaction  the  said  In- 
debtedness was  divided  and  George  B. 
Barnes,  Sr.,  and  wife  assumed  |24,500  for 
which  they  executed  their  promissory  notes 
payable  to  plaintiff,  secured  by  a  mortgage 
executed  by  them  on  the  Wyndmere  lands, 
which  mortgage  was  subject  to  all  incum- 
brances of  record,  and  that  afterwards 
George  B.  Barnes,  Jr.,  and  wife  executed  to 
plaintiff  their  promissory  notes  for  $lo.uOO 
secured  by  a  mortgage  executed  by  them  on 
the  CampbelL  lands;  that  plaintiff  canceled 
and  surrendered  all  the  notes  secured  and 
unsecured  that  he  held  against  the  Barneses; 
that  he  executed  a  satisfaction  of  the  mort- 
gage on  the  Campbell  land  which  was  re- 
corded; that  a  satisfaction  of  the  mortgage 
of  November  1, 1899,  on  the  Wyndmere  lands 
was  partially  filled  out,  but  for  some  reason 
was  never  executed.  The  defendants  claim 
for  lack  of  some  necessary  data.  It  Is  undis- 
puted that  at  the  time  the  mortgage  of  date- 
November  1,  1899,  was  given  Barnes,  Sr., 
held  a  contract  of  purchase  from  the  Howard 
Benevolent  Society  for  the  southwest  quar- 
ter of  section  82  In  township  132  of  range 
52  on  which  there  was  due  about  !(2,000.  On 
the  18th  day  of  February,  1902,  Barnes,  Sr., 
and  wife  gave  a  mortgage  on  said  southwest 
quarter  of  said  section  32  to  Williams,  Hal- 
lett &  Grlswold  for  the  sum  of  (1,800,  and 
that  the  $1,800  obtained  from  them  was  used 
to  pay  the  balance  of  the  purchase  price  on 
said  southwest  quarter  of  said  section  S2 
to  the  Howard  Benevolent  Society,  and  that 
Barnes,  Sr.,  procured  a  deed  from  said  so- 
ciety for  said  land.  Plaintiff  by  reason  of 
this  last-mentioned  transaction  Is  in  a  better 
position  than  he  was  In  November,  1899, 
as  to  this  tract  of  land.  Then  there  was 
|2,000  due  the  Howard  Benevolent  Society. 
This  was  reduced  to  $1,800  by  reason  of  the 
mortgage  given  to  Williams,  Hallett  &  Grls- 
wold. We  think  the  evidence  clearly  shows 
that  It  was  the  Intention  and  understanding 
of  the  plaintiff  and  defendants  Barnes  at 
the  time  the  May,  1904,  settlement  was 
made  that  the  mortgage  on  the  southwest 
quarter  of  said  section  32  to  Williams,  Hal- 
lett &  Grlswold  was  prior  and  superior  to- 
that  of  the  plaintiff.  A  chart  was  used  at 
this  settlement  which  shows  on  its  face  that 
there  was  then  a  mortgage  of  $1,800  on  said' 
southwest  quarter  of  said  section  32,  which 
chart  Is  In  evidence.  It  follows  that  the 
mortgage  to  Williams,  Hallett  &  Grlswold: 


Digitized  by  VjOOQ  l€ 


NO.) 


ZBLLMEB  ▼.  PATTERSON. 


381 


Is  prior  to  any  Uen  of  the  plaintiff  on  the 
southwest  quarter  of  section  S2  in  township 
132  of  range  S2,  Richland  county,  N.  D.,  and 
that  the  Judgment  entered  herein  must  be 
modified  by  subjecting  platntlfrs  mortgage 
to  the  mortgage  of  WlUiams,  Hallett  &  Orls- 
wold  on  this  said  last-mentioned  tract  of 
land,  and  that  the  mortgage  dated  November 
1, 1899,  and  the  Indebtedness  secured  thereby 
is  fully  p^d  and  satisfied.  The  evidence 
In  r^ard  to  the  counterclaim  of  defendants 
Barnes  Is  conflicting,  and  we  cannot  say  that 
the  trial  court  erred  In  dismissing  It 

The  case  will  be  remanded  to  the  district 
€0urt  of  Richland  county,  with  directions  to 
modify  its  Judgment  in  accordance  with  this 
opinion,  and  the  Judgment  so  modified  is 
affirmed.  Appellants  will  recover  costs  of 
the  appeal,  and  appellants  Williams,  Hallett 
ft  Griswold  will  recover  costs  in  t)oth  the 
supreme  and  district  courts,  but  neither  ap- 
pellants George  B.  and  Henrietta  A.  Barnes 
nor  respondent  wUl  be  allowed  any  costs  in 
the  distrigt  court  All  concur,  except  MOR- 
GAN, C.  J.,  not  participating. 


ZELIAIER  V.  PATTERSON  et  al. 

(Snpreme  Conrt  of  North  Dakota.     June  20, 
1909.) 

Specific  PEaroBUAHCK  ({  12*}— Actions— D»- 

FENBES. 

This  action  was  brought  for  specific  per- 
formance of  a  contract  to  secnre  title  to  40 
acres  of  land  tbroogh  tlie  location  of  covem- 
ment  scrip,  and  to  enjoin  the  defendant  Fatter- 
son  from  conveying  any  part  of  the  40  acres 
to  the  defendant  Smith  I<aiul  Company,  and  to 
cancel  a  contract  alleged  to  liave  been  made 
by  him  to  convey  some  portion  of  such  tract 
of  land.  The  complaint  alleges  that  he  was 
employed  to  procure  and  locate  scrip  for  plain- 
til^  and  that  he  agreed  to  have  the  power  of 
attorney  which  went  with  the  scrip,  authorizing 
the  holder  of  the  power  to  sell  and  deed,  nm 
to  plaUitiff,  bnt  that  in  violation  of  the  con- 
tract Ite  had  taken  it*  to  himself.  To  a  defense 
which  stated  tltat  defendant  Patterson  had  con- 
veyed •  by  warranty  deed  to  the  plaintiff  37 
acres  of  the  40.  and  that  such  deed  conveyed 
title  in  fee  simple  to  the  plaintiff,  and  had  been 
accepted  hy  iiim,  and  setting  forth  a  contract 
executed  by  plaintiff  and  defendant  Patterson, 
wherein  plamtiff  acknowledged  payment  by 
Patterson  for  three  tracts  of  one  acre  each  in 
snch  40  acres,  and  agreed  to  convey  the  same 
to  Patterson,  plaintiff  demurred. 

Beld,  that  the  allegations  of  the  answer  re- 
ferred to  standing  admitted  on  demurrer  there- 
to show  title  in  plaintiff  to  all  that  part  of  the 
40-acre  tract  belonging  to  him,  and  that  (as 
far  as  the  pleadings  show)  his  only  ground  of 
complaint  is  that  he  received  title  through  Pat- 
terson instead  of  direct  from  the  vendor  of  the 
scrip,  and,  further,  that  a  conrt  of  equity,  look- 
ijig  to  substance  rather  than  to  form,  will  not 
take  co^izance  of  this  variance  in  the  method 
of  obtaining  title  from  that  alleged  to  have  been 
agreed  upon,  and  the  part  of  the  answer  de- 
murred to  states  a  defense. 

[Ed.  Note. — For  other  cases,  see  Specific  Per^ 
formance,  Dec.  Dig.  {  12.*] 

(Syllabus  by  the  Court.) 


Specific  performance  by  Christ  3.  jZellmer 
against  Asa  T.  Patterson  and  another.  From 
an  order  sustaining  a  demurrer  to  a  para- 
graph of  the  answer  of  the  defendant  Fatter- 
son,  he  appeals.    Reversed. 

Newton  &  Dullam,  for  appellant  Nels 
Larson  and  W.  F.  Gorrigan,  for  respondent. 

SPALDING,  3.  This  Is  an  appeal  from 
an  order  sustaining  a  demurrer  to  one  para- 
graph of  defendant's  answer.  Both  the  com- 
plaint and  the  answer  are  of  great  length. 
To  a  complete  understanding  of  the  case, 
it  would  be  necessary  to  set  them  forth  in 
fuU,  but  its  Importance  does  not  warrant 
doing  80.  The  complaint  alleges  the  employ- 
ment of  the  defendant  as  an  attorney  to  pro- 
cure and  locate  scrip  upon  40  acres  adjoin- 
ing the  town  site  of  Gackle.  This  40-acre 
tract  had  already  been  platted.  It  attempts 
to  detail  the  reasons  why  the  respondent 
platted  it  and  -wished  to  obtain  title,  and 
charges  knowledge  on  the  part  of  the  defend- 
ant of  such  reasons.  It  alleges  the  payment 
to  appellant  of  $500  with  which  to  pnrAiase 
the  scrip  and  to  pay  in  full  for  his  legal  serv- 
ices pertaining  to  the  purchase  and  location, 
and  alleges  that  appellant  purchased  the 
scrip  and  located  it  upon  such  40  acres  about 
the  2d  day  of  July,  1904,  but  that  he  was 
negligent  in  performing  the  duties  for  which 
he  was  employed,  and  did  not  attend  to 
having  the  scrip  forwarded  to  the  (General 
Land  Office  in  Washington  or  getting  a  pat- 
ent issued,  by  reason  of  which  negligence  re- 
spondent was  compelled  to  employ  other  at- 
torneys at  great  expense;  that  the  scrip  was 
obtained  from  one  Frank  G.  Reld;  and  that 
in  connection  with  the  scrip  were  two  pow- 
ers of  attorney,  one  authorizing  the  location 
of  the  scrip  and  the  other  authorizing  the 
attorney  in  fbct  to  take  possession  of  the 
land  on  which  the  scrip  was  located  and 
sell  and  convey  the  same,  and  do  all  other 
acts  wUch  the  principal  could  do  had  the 
power  not  been  given,  and  to  do  other  things 
usually  authorized  in  such  powers  of  attor- 
ney. It  is  also  alleged  that  the  name  of  the 
attorney  in  fact  was  left  blank  In  the  last- 
named  power  of  attorney,  and  that  it  was 
understood  between  respondent  and  appel- 
lant that  respondent's  name  should  be  in- 
serted therein  as  attorney  In  fact  for  Reid; 
that  in  violation  of  his  agreement  appel- 
lant inserted  his  own  name  in  snch  power  of 
attorney,  and  refused  to  deliver  the  papers 
relating  to  such  transaction  to  respondent, 
and  recorded  such  power  of  attorney  in  the 
office  of  the  register  of  deeds  in  Logan  coun- 
ty, and  entered  into  a  contract  with  the  de- 
fendant Smith  Land*  Company,  whereby  he 
agreed  to  sell  part  of  such  tract  of  land  to 
said  company,  and  that  said  company  has. 
or  claims  to  have,  some  right  title,  or  inter- 
est therein  which  is  Junior,  inferior,  and  sub- 


•For.otiMf.caMs.sa*  aam*  topic  and  Mctloa  NUMBER  in  Dec.  ft  Am.  Plgi.  1907  Update,  ft  RsporUr  Indszei 


Digitized  by  VjOOQ  l€ 


382 


122  NORTHWESTERN  REPORTER. 


(N.D. 


ordinate  to  the  riglits  of  the  respondent  The 
prayer  for  relief  Is  as  follows:  "Wherefore 
the  plaintiff  demands  Judgment  against  the 
defendant  Asa  T.  Patterson,  decreeing  the 
specific  performance  of  the  contract  entered 
Into  between  said  plaintiff  and  the  defendant 
Asa  T.  Patterson  on  the  28th  day  of  June, 
1904;  that  the  said  power  of  attorney,  placed 
on  file  and  of  record  in  the  register  of  deeds' 
office  in  and  for  the  county  of  Logan  and 
state  of  North  Dakota,  on  the  9th  day  of  Oc- 
tober, 1906,  at  3:30  o'clock  p.  m.,  which  Is 
referred  to  in  this  complaint  as  'Exhibit  G,' 
be  adjudged  and  decreed  to  be  void  and  of 
no  force  and  effect,  and  that  all  deeds,  in- 
struments, contracts'of  every  kind,  name  or 
nature,  which  have  been  signed,  executed, 
or  delivered  by  the  said  defendant  Asa  T. 
Patterson,  or  any  one  acting  under  or  through 
him,  and  for  a  farther  order  and  decree  that 
said  plaintiff's  right,  claim,  and  title  to  said 
premises  is  first  and  superior  to  that  of  the 
defendant  the  Smith  Land  Company,  togeth- 
er with  the  costs  and  disbursements  of  this 
^ctloo,  and  such  other  relief  as  may  be  Just 
and  equitable."  The  answer  of  the  appellant 
admits  the  employment,  but  denies  that  be 
was  ever  employed  in  the  premises  as  an  at- 
torney at  law,  and  asserts  tbat  he  was  em- 
ployed only  to  purchase  and  locate  the  scrip 
as  a  dealer  therein;  denies  that  there  was 
ever  any  understanding  that  respondent's 
name  should  be  Inserted  in  the  power  of  at- 
torney; admits  many  of  the  allegations,  tiut 
contains  a  general  denial  as  to  all  things  not 
admitted,  specifically  denied  or  qualified;  de- 
nies that  he  in  any  way  has  neglected  to  car- 
ry out  the  arrangement  between  him  and 
respondent,  and  alleges  that  the  scrip  was 
purchased  and  received  by  him  in  trust,  not 
for  the  use  of  respondent  alone,  but  for  the 
lienefit  of  all  persons  Interested,  in  the  40-acre 
tract,  including  himself  to  the  extent  of  three 
tracts  of  one  acre  each;  and  alleges  that  he 
was  authorized  to  insert  his  own  name  in 
the  power  of  attorney  mentioned.  Appellant 
in  his  answer'  also  admits  that  he  was  paid 
by  cash  and  check  $500,  the  purchase  price 
of  the  scrip  and  for  his  services  in  procuring 
and  locating  it,  and  that  he  has  contracted 
to  sell  to  the  Smith  Land  Company  three 
tracts  of  one  acre  each  of  said  40  acres. 

Paragraph  13  of  the  answer  reads  as  fol- 
lows: "Alleges:  That  on  the  28th  day  of 
June,  1904,  at  Bismarck,  the  plaintiff  and 
this  defendant  entered  into  an  agreement 
in  writing,  in  the  words  and  figures  follow- 
ing, to  wit:  'For  value  received,  I,  C.  J. 
Zellmer,  of  Kulm,  N.  D.,  hereby  sell  and 
agree  to  convey  to  A.  T.  Patterson,  of  Bis- 
marck, N.  D.,  three  one  acre  tracts  in  such 
location  as  A.  T.  Patterson  may  select  out  of 
the  Northeast  quarter  of  the  Southeast  quar- 
ter of  Section  six  («)  in  Township  One 
Hundred  Thirty-six  (136),  North  of  Range 
Sixty-seven  (67),  West  of  the  5th  P.  M., 
provided  that  such  selection  shall  not  be 
made  for  lands  now  occupied  by  buildings. 


Dated  June  28,  1904.  [Signed]  C.  J.  Zellmer. 
[Signed]  A.  T.  Patterson.'  Which  said  in- 
strument was  then  and  there  duly  acknowl- 
edged before  M.  P.  Skeels,  Esq.,  a  notary  pub- 
lic, and  that,  by  virtue  of  the  provisions  of 
the  said  agreement,  this  defendant  on  or 
about  the  23d  day  of  June,  1906,  made  a  se- 
lection in  writing  of  4he  said  tracts  men- 
tioned in  said  contract,  and  in  accordance 
with  the  terms  thereof,  and  then  and  there 
duly  acknowledged  the  same  so  as  to  entitle 
it  to  be  recorded,  and  thereafter,  on  the 
6tb  day  of  June,  A.  D.  1906,  the  same  was 
duly  recorded  in  the  office  of  the  register  of 
deeds  for  Logan  county,  N.  D.,  and  a  true 
copy  thereof  duly  delivered  to  the  plaintiff 
on  the  7th  day  of  July,  1906.  That  there- 
upon, on  the  24th  day  of  October,  1906,  this 
defendant  duly  conveyed  by  a  deed  of  war- 
ranty to  the  plaintiff  as  grantee  all  of 
said  land  upon  which  said  scrip  bud  there- 
tofore been  located,  except  the  three  tracts 
of  one  acre  each,  as  designated  In  the  agree- 
ment as  hereinbefore  set  forth  relating  there- 
to, and  mentioned  and  described  in  tbls  de- 
fendant's selection  made  in  pursuance  of 
such  agreement,  and  tbat  the  plaintiff  then 
and  there  received  and  accepted  the  same 
and  since  said  time  has  retained  said  deed, 
and  tbat  said  deed  fully  invested  the  fee- 
simple  title  to  the  land  therein  described  and 
conveyed  in  the  plaintiff.  That,  by  reason 
of  the  premises  and  the  facts  hereinbefore  set 
forth  and  shown,  the  plaintiff  Is  estopped 
from  In  any  way  claiming  or  asserting  title 
to  the  said  three  tracts  belonging  to  tbls  de- 
fendant, and  hereinbefore  described."  To 
paragraph  18  respondent  interposed  a  de- 
murrer on  the  ground  that  said  part  of  said 
answer  is  insuflicient  In  law  upon  the  face 
thereof  to  constitute  a  defense  to  the  com- 
plaint herein.  This  demurrer  was  sustain- 
ed. From  the  order  sustaining  It  defendant 
appeals.  There  is  much,  unnecessary  matter 
in  the  complaint  and  likewise  In  the  answer. 
Many  of  the  allegations  in  the  complaint 
would  be  proper  in  pleadings  In  an  action 
for  damages  for  breach  of  contract,  but  seem 
to  US  to  have  no  place  in  this  action  when 
read  in  the  light  of  the  prayer  for  relief. 
From  the  answer  as  a  whole  we  are  unable 
to  determine  whether  paragraph  18  was  in- 
tended as  a  part  of  one  defense  or  as  a  sepa- 
rate defense  distinct  from  the  remainder  of 
the  answer.  Unquestionably  Its  allegations 
would  have  been  properly  included  as  a  part 
of  one  defense  with  the  balance  of  the  an- 
swer; but  inasmuch  as  it  has  been  treated 
by  respondent,  and  evidently  by  the  trial 
court,  as  a  separate  defense,  we  shall  treat 
It  as  though  specifically  so  pleaded.  It  may 
be  noted  tbat  the  demurrer  raises  the  broad 
question  of  a  defense,  and  not  simply  the 
question  as  to  whether  the  facts  pleaded  coh-, 
stltute  an  estoppel. 

Let  US  inquire  what  the  respouduut  was 
seeking  to  secure  if  we  can  determtB«i  thto 
from  the  pleadings.    He  first  asks  for  "spe- 


Digitized  by  VjOOQ  l€ 


N.  D.) 


ZELLMEE  T.  PATTERSON. 


383 


tifte  perfonuance."  We  are  not  perfectly 
clear  as  to  what  be  means  by  tbis  demand; 
but,  when  read  In  connection  with  all  the 
facts  pleaded  and  the  remainder  of  his 
prayer,  we  think  this  part  of  the  prayer  is 
limited  by  the  remaining  portions  of  the 
prayer,  and  that  he  Is  seeking  to  get  the 
liUe  to  the  40  acres  described,  and  that  he 
considers  It  necessary,  in  order  to  do  so,  to 
bare  the  power  of  attorney  which  has  been 
recorded  adjudged  void,  and  that  appellant 
•lellver  to  him  another  In  Its  place.  He  does 
not  charge  appellant  with  having  gilven  deeds 
or  conveyances  of  any  kind  to  any  part  of 
the  premises  except  one  to  the  Smith  lAud 
Company.  We  therefore  Interpret  his  prayer 
rhat  all  deeds.  Instruments,  and  contracts,  of 
orery  name,  nature,  and  description,  which 
may  have  been  signed,  executed,  or  delivered 
by  defendant  Patterson  be  declared  void  and 
of  no  effect,  to  refer  to  the  contract  which 
be  charges  Patterson  with  having  entered 
into  to  convey  a  portion  of  the  40  acres'  to  the 
Smith  Land  Company,  and  that  be  means 
thereby  to  secure  the  cancellation  of  that 
contract  He  next  prays  that  the  defendant, 
by  which  we  suppose  he  means  Patterson, 
execute  and  deliver  such  Instrument,  or  In- 
struments, as  may  be  necessary  to  remove 
any  cloud  upon  the  said  premises  caused  by 
his  acts.  The  contract  to  the  Smith  Land 
CoDopany  must  be  meant  by  tbis  also,  because 
be  pleads  no  facta  showing  any  cloud  upon 
any  part  of  the  premises,  except  the  contract 
to  the  Smith  Land  Company  already  referred 
to.  The  final  prayer  that  his  title  to  the 
premises  be  decreed  to  be  superior  to  that 
of  the  Smith  Land  Company  is  In  harmony 
with  his  prayer  that  the  contract  with  it  be 
sidjndged  void.  These  separate  parts  of  the 
prayer  for  relief  simply  go  toward  the  gen- 
eral object  sought  of  securing  title  to  the 
40  acres  which  resiMndent  claims  belongs 
to  him  under  the  contract.  How  are  these 
facts  and  the  prayer  for  relief  met  by  the 
allegations  of  paragraph  13  of  the  answer? 

1.  A  contract  is  set  out  as  entered  Into 
by  and  between  the  appellant  and  respond- 
ent, not  alleged  to  be  any  part  of  the  consid- 
eration for  appellant's  services — ^In  fact,  any 
such  claim  Is  negatived  by  the  pleadings — but 
wherein  respondent  acknowledges  payment 
for  three  tracts  of  land  of  one  acre  each  in- 
dnded  in  the  40  acres,  and  agrees  to  convey 
the  same  to  appellant,  and  appellant  alleges 
that  he  has  selectied  the  same  In  accordance 
with  the  terms  of  the  contract  On  demur- 
rer these  all^atlons  stand  admitted. 

2.  It  alleges  that  appellant  has  executed 
and  delivered  to  respondent  a  valid  warranty 
deed  conveying  title  In  fee  to  respondent  to 
the  remaining  37  acres,  and  that  respondent 
has  received,  accepted,  and  retained  the  same. 
He  accounts  for  the  title  to  the  whole  40-acre 
tract  by  showing  that  be  has  retained  three 
seres  to  wlilch  be  himself  was  entitled  imder 


the  contract,  and  that  respondent  has  acquir- 
ed and  accepted  title  to  37  acres ;  that  being 
all  that  t>elonged  to  him  or  in  which  be  has 
any  Interest  These  facts  all  stand  admitted 
by  the  demurrer,  and  It  Is  thereby  also  ad- 
mitted that  such  deed  fully  invested  the  fee- 
simple  title  to  the  37  acres  described  in  the 
respondent  The  respondent  was  in  no  way 
interested,  legally  at  least,  by  reason  of  any 
facts  shown  in  the  pleadings,  In  these  three* 
tracts  of  one  acre  each.  He  had  no  ground 
for  complaint  because  the  deed  did  not 
come  directly  from  Reld  to  him  so  as  to 
admit  of  his  redeedlug  the  three  acres  to  Pat- 
terson. If  Patterson  was  satisfied  with  the 
title  which  he  acquired,  or  may  acquire,  to 
the  three  acres  in  this  maimer.  Zellmer  has 
no  reason  to  complain;  neither  had  he.  as 
far  as  tbe  pleadings  show,  of  his  title  to  the 
37  acres.  All  he  shows  in  his  complaint  Is 
that  he  has  a  right  to  the  title  to  the  40 
acres.  Paragraph  13  shows  that  he  has 
received  the  title,  and  accepted  It,  to  37  acres, 
and  that  he  is  no  longer  Interested  in  tbe 
other  3  acres,  and  has  no  equitable  right  to 
the  title  thereto.  The  whole  case  therefore 
resolves  itself  down  to  this:  That  respond- 
ent claims  that  the  power  of  attorney  should 
have  been  filled  In  with  his  name  as  attorney 
in  fact  for  Reld;  that  It  was  completed  by 
inserting  Patterson's  name  as  attorney  in 
fact  for  Reld;  and  that  by  reason  of  the 
latter  fact,  Patterson  will,  if  he  has  not 
already  done  so,  perfect  bis  title  to  the 
three  acres  by  a  deed  from  Reid  by  Patter- 
son, as  Reld's  attorney  in  fact,  to  Patterson 
as  grantee,  or  to  Patterson's  assignees  if 
he  has  assigned  the  contract  Whereas,  if 
Zellmer's  version  of  tbe  transaction  is  cor- 
rect, Reld,  as  grantor,  would  have  deeded 
by  Zellmer,  bis  attorney  In  fact,  to  Zellmer 
as  grantee,  37  acres  or,  and  in  tbe  same 
manner,  Reld  by  Zellmer,  as  grantor.  woulU 
have  deeded  the  three  acres  to  Patterson  as 
grantee.  Tbis  variance,  however.  Is  one  of 
form  rather  than  of  substance,  and.  as  far 
as  the  pleadings  show,  does  not  make  the 
slightest  difference  in  the  character  or  qual- 
ity of  the  title  or  the  quantity  of  land  obtain- 
ed by  Zellmer.  We  are  unable  to  see  that 
Zellmer  has  been  deprived  of  any  substan- 
tial rights  such  as  a  court  of  equity  can  re- 
store to  blm,  and  we  are  of  the  opinion  that 
paragraph  13  states  a  defense  to  the  respond- 
ent's complaint.  If  plalntlfr  has  a  cause  of 
action  against  Patterson  for  damages  for 
breach  of  contract  or  duty  as  an  agent  or  at- 
torney, he  can  seek  relief  in  an  appropriate 
action,  and,  if  he  desires  to  controvert  the 
allegations  of  the  answer,  including  para- 
graph 13,  he  still  has  the  opportunity  to  do 
so.  Our  decision  does  not  stand  in  his  way. 
Tbe  order  of  the  district  court  appealed 
from  Is  reversed.    All  concur. 

MORGAN,  G>  J.>  not  participating. 


Digitized  by  LjOOQIC 


384 


122  NORTHWESTERN  REPORTER. 


(N.D. 


CHRISTIANSON  T.  HUGHES. 

(Supreme  Court  of  North  Dakota.     Jane  29, 
1909.) 

Mechanics'  Lixns  (S  61*)— MATKBiixs  Fub- 
NisHKD— Wife's  Separate  Pbopebtt. 
Where  a  husband,  without  the  consent  and 
against  the  protests  of  the  wife,  contracts  for 
and  purchases  materials  to  paint  a  dwelling 
house  on  land  owned  by  the  wife,  who,  having 
no  knowledge  of  where  he  purchased  the  ma- 
terials, did  not  give  notice  of  her  objection  to 
the  improvements  on  the  dwelling  house  to  the 
party  who  furnished  said  materials,  the  ma- 
terialman, under  the  evidence  in  this  case,  ac- 
quires no  lien  under  section  62&7  of  said  Re- 
vised Codes  of  1905  for  the  materials  furnished. 
[Ed.  Note.— For  other  cases,  see  Mechanics' 
Liens,  Cent  Dig.  f  78;    Dec.  Dig.  I  61.*] 

(Syllabus  by  the  C!ourt) 

Appeal  from  District  Court,  Cass  County; 
Chas.  A.  Pollock,  Jodge. 

Action  by  Lars  Chrlstlanson,  doing  busi- 
ness as  the  Chrlstlanson  Drug  Company, 
against  Kate  Hughes.  Judgment  for  plain- 
tiff, and  defendant  appeals.    Reversed. 

Turner  ft  Wright,  for  appellant  Pierce, 
Tenneson  A  Cupler,  for  reqrandent. 

CARMODX,  J.  This  case,  which  was 
brought  for  the  foreclosure  of  a  mechanic's 
Hen,  Is  In  this  court  for  trial  de  novo.  The 
complaint  alleges  that  the  defendant  is  the 
owner  of  the  premises  against  which  the 
plaintiff  seeks  to  establish  a  lien,  and  also 
the  making  of  the  contract,  on  May  15,  1906, 
with  one  D.  E.  Hughes,  the  husband  of  the 
defendant,  under  which  the  plaintiff  was  to 
furnish  certain  materials  for  the  construc- 
tion, alteration,  or  repair  of  a  certain  build- 
ing, situate  upon  land  belonging  to  the  de- 
fendant, which  was  then  occupied  by  the  said 
D.  E.  Hughes  and  the  defendant  as  a  dwell- 
ing house.  It  alleges  that  between  htnj  15, 
1906,  aqd  June  29,  1906,  at  the  request  of 
the  said  D.  E.  Hughes,  and  by  and  with  con- 
sent of  the  defendant,  the  plaintiff  sold  and 
delivered  to  the  said  D.  E.  Hughes  building 
materials  of  the  value  of  $77.10.  It  further 
alleges  that  said  materials  were  furnished 
for,  and  were  used  in  and  upon,  the  con- 
struction, alteration,  or  repair  of  said  dwell- 
ing house,  and  by  and  with  the  consent  of 
tlu!  said  defendant  The  answer  puts  In  Issue 
every  material  allegation  of  the  complaint, 
except  that  defendant  admits  her  ownership 
of  the  premises  in  dispute,  and  that  the  same 
constitute  the  homestead  of  herself  and  hus- 
band. The  case  was  tried  to  the  court  with- 
out a  Jury,  and  resulted  in  a  personal  Judg- 
ment in  favor  of  the  plaintiff,  and  against 
the  defendant,  for  the  sum  of  $122.02  dam- 
ages and  costs,  adjudging  a  lien  therefor  up- 
on the  premises  in  controversy,  and  directing 
the  foreclosure  thereof.  The  personal  Judg- 
ment was  rendered  Inadvertently. 

The  plaintiff  established  at  the  trial  that 


he  sold  to  D.  E.  Hughes  paint,  oil,  white 
lead,  and  other  material  used  in  painting  the 
said  dwelling  house,  and  states  the  circum- 
stances as  follows:  D.  E.  Hughes,  on  or 
about  Briay  15,  1906,  came  into  the  store 
of  plaintiff  and  said:  "Lars,  I  want  to  get 
some  paint  to  paint  my  house,  and  as  soon 
as  I  get  through,  I  will  come  In  and'  give 
you  a  check  for  It"  The  plaintiff  further 
testified  that  D.  E.  Hughes  at  one  time  was 
running  a  wagon  shop  In  Fargo,  and  that 
he  purchased  from  plaintiff  paints  and  var- 
nishes for  painting  buggies,  also  paint  the 
year  before  to  prime  his  house,  and  that  be 
paid  for  them.  The  testimony  further  shows 
that  $10  worth  of  paint  was  sufllclent  to 
paint  the  house  one  coat ;  that  D.  E.  Hughes 
was  sent  to  the  Insane  asylum  on  the  22d 
day  of  June,  1906;  that  after  his  Incarcera- 
tion in  the  asylum  the  defendant  got  Mr. 
Nelson,  a  painter  In  Fargo,  to  paint  the  house 
one  coat,  and  that  the  paint  then  used  cost 
less  than  $9.  This  last-mentioned  painting 
was  necessary,  on  account  of  the  conditioa. 
of  the  building  after  the  painting  done  by 
D.  E.  Hughes  with  the  materials  he  purchas- 
ed from  plaintiff.  The  plaintiff  does  not 
claim  to  have  ever  had  any  conversation,  un- 
derstanding, or  agreement  with  defendant  on 
the  subject  He  relies  solely  upon  the  Im- 
plied consent  on  her  part  to  use  the  materials 
upon  her  house,  and  to  the  furnishing  of 
them  by  the  plaintiff.  Defendant  testified 
that  she  never  consented  to  the  use  of  the 
materials,  or  of  the  purchase  of  them  for  her 
house.  She  several  times  protested  to  her 
husband  against  painting  the  house  with 
these  materials.  She  told  him  he  had  paint- 
ed the  house  the  year  before,  and  that  it  did 
not  need  painting,  and  that  they  could  not 
afford  It  She  did  not  know,  she  never  knew, 
where  D.  E.  Hughes  was  procuring  the  paint. 
Be  had  money  with  which  he  could  have  paid 
for  the  paint  He  said  he  was  paying  for  It 
She  never  received  any  notice  from  plaintiff 
that  he  was  extending  credit  for  the  materi- 
als. She  testified  that  D.  E.  Hughes  bought 
paint  all  his  life,  and  she  never  paid  any 
attention  to  It.  She  did  not  know  where 
he  bought  It,  or  who  furnished  the  paint  the 
year  before.  She  did  not  give  notice  to  the 
plaintiff  of  her  objection  to  his  furnishing 
the  materials.  The  alleged  lien  was  duly 
filed  on  the  27th  day  of  September,  1906. 

Section  6237,  Rev.  Codes  1905,  Is  as  follows: 
"Any  person  who  shall  perform  any  labor 
upon  or  furnish  any  materials,  machinery  or 
fixtures  for  the  construction  or  repair  of 
any  work  of  internal  Improvement  or  for  the 
erecting,  alteration  or  repair  of  any  build- 
ings or  other  structures  upon  land,  or  in  mak- 
ing any  other  Improvements  thereon,  includ- 
ing fences,  sidewalks,  paving,  wells,  trees, 
grades,  drains  or  excavations  under  a  con- 
tract with  the  owner  of  such  land,  his  agent. 


•For  otbsr  eases  see  same  topic  ana  lectlon  NUMBER  to  Dec.  *  Am.  Dig*.  1M7  to  date,  *  Reporter  ladezes 


Digitized  by  VjOOQ  l€ 


N.D.) 


CHRISTIANSON  v.  HUGHES. 


385 


trustee,  contractor  or  subcontractor,  or  with 
the  consent  of  such  owner,  shall  upon  comply- 
ing with  the  provisions  of  this  chapter  hare 
*  *  *  a  lien  upon  such  building,  erection 
or  Improyement  and  upon  the  land  belonging 
to  such  owner.  •  •  ♦  The  owner  shall  be 
presomed  to  hare  consented  to  the  doing  of 
any  such  labor  or  making  of  any  such  Im- 
provement, If  at  the  time  be  had  knowledge 
thereof,  and  did  not  give  notice  of  bis  objec- 
tion thereto  to  the  person  entitled  to  the 
lien."  The  case  must  tura  largely  upon  the 
construction  to  be  placed  upon  said  section 
6237  of  the  Revised  Codes  of  1905.  It  Is  not 
claimed,  on  the  part  of  the  plaintifT,  that  he 
Iiad  at  any  time,  either  directly  or  indirectly, 
any  contractual  relation  with  the  defend- 
ant, or  that  her  husband  was  either  the 
agent,  trustee,  contractor  or  subcontractor  of 
the  defendant.  He  admits  that  his  contract 
was  with  D.  E.  Hughes,  the  husband  of  the 
defendant  alone.  Be  claims,  however,  that 
the  defendant,  having  had  actual  knowledge 
that  the  Improvements  were  being  made,  and 
having  failed  to  give  the  notice  required  by 
said  section  6237,  must  be  held  to  have  im- 
pliedly consented  to  the  furnishing  of  the  ma- 
terials. He  contends  that  this  Is  the  con- 
struction placed  upon  similar  statutes,  and 
cites  a  large  number  of  cases  to  sustain  his 
contention.  An  examination  of  these  cases 
shows  that  they  were  decided  under  statutes 
unlike  ours.  Section  3509,  Rev.  Laws  Minn. 
1905,  as  far  as  material  here,  reads  as  fol- 
lows: "But  any  person  who  has  not  authoriz- 
ed the  same  may  protect  .his  Interest  from 
sach  liens  by  serving  upon  the  persons  do- 
ing the  work  or  otherwise  contributing  to 
such  improvement,  within  five  days  after 
knowledge  thereof,  written  notice  that  the 
improvement  is  not  being  made  at  his  in^ 
stance,  or  by  posting  like  notice  and  keep- 
ing the  same  posted  in  a  conspicuous  place 
on  the  premises."  The  mechanic's  lien  stat- 
utes of  California  and  Oregon  are  practi- 
cally the  same  as  the  statutes  of  Minnesota 
as  far  as  giving  notice  is  concerned.  In  some 
of  the  other  states  the  statutes  require  the 
owner  to  file  notice  of  his  objection  in  the 
office  of  the  county  clerk. 

In  Wheaton  v.  Berg,  50  Minn.  525,  52  N. 
W.  928,  the  defendant  Nilson  sold  a  vacant 
lot  to  defendant  Berg,  the  purchase  price  to 
be  paid  within  90  days.  The  sale  contract 
did  not  provide  for  the  erection  of  a  building, 
bnt  provided  that  in  case  of  nonperformance 
by  tbe  vendee  "all  the  improvements  on  said 
premises  or  which  may  be  made  thereon" 
should  become  the  property  of  the  vendor. 
Berg  erected  a  house  upon  the  premises.  It 
was  found  as  a  fact  by  the  court  that  he 
purchased  the  lot  for  that  purpose,  and  that 
Nilson  knew  this  when  he  contracted  to  sell ; 
that  he  knew  that  the  house  was  being  con- 
structed from  the  time  when  building  opera- 
tions were  commenced,  and  that  he  never 
made  any  objection  thereto.    Neither  did  he 

122N.W.— 26 


post  any  notice  on  the  premises,  as  required 
by  said  section  3509  hereinbefore  quoted. 
Held,  that  the  parties  who  performed  labor 
on  said  dwelling  house,  or  furnished  material 
therefor,  were  entitled  to  liens  on  the  prem- 
ises. In  Harlan  et  al.  v.  Stufflebeem  et  al., 
87  Cal.  508,  25  Pac.  686,  the  court  found  that 
tbe  owners  of  the  land  knew,  at  the  time, 
of  the  construction  of  the  buildings,  and  of 
all  the  terms  and  conditions  of  the  contract 
between  Stufflebeem  and  the  plaintlfTs  at 
the  time  it  was  made,  and  also  that  on  the 
completion  of  the  work,  he  had  made  a  pay- 
ment to  the  plaintiffs  on  account  thereof. 
The  other  cases  cited  by  plaintifT  hold  that, 
where  the  owner  of  the  land  has  knowledge 
of,  and  consents  to  the  performance  of  the 
labor  and  the  furnishing  of  the  material  by 
the  Hen  claimants  under  a  contract  with  a 
person  other  than  the  owner,  tbe  parties  so 
performing  labor  and  furnishing  materials 
are  entitled  to  liens. 

Plaintiff  does  not  claim  that  defendant  had 
any  knowledge  that  he  was  fumishing  ma- 
terials which  were  used  on  her  bouse.  He 
relies  solely  upon  the  fact  of  her  knowledge 
that  the  house  was  being  painted,  her  knowl- 
edge of  the  improvements,  as  sufficient  to 
charge  her  with  the  duty  of  ascertaining  the 
further  fact  that  plaintiff  was  furnishing  the 
materials,  for  such  improvements,  and  giving 
him  notice  of  her  objection  thereto.  This 
we  do  not  think  Is  the  correct  construction 
of  said  section  6237.  If  it  is,  D.  B.  Hughes 
could  have  procured  the  materials  from  sev-. 
eral  different  persons,  or  could  have  bad 
them  shipped  from  a  foreign  state,  and  the 
defendant  would  have  had  to  hunt  up  the 
different  parties  supplying  the  materials,  or, 
if  they  were  shipped  from  a  foreign  state, 
find  out  who  shipped  them,  and  give  the 
proper  party  notice  that  she  objected  to  the 
making  of  the  improvement  Such  we  do  not 
think  was  the  intention  of  the  Legislature 
in  passing  the  law.  In  the  case  at  bar  the 
defendant  never  consented  to  the  improve- 
ment being  made,  or  to  the  furnishing  of  the 
materials  therefor  by  plaintiff,  or  any  other 
person.  She  objected  to  the  improvements; 
her  hnsband  was  not  her  agent;  the  con- 
tract was  not  made  by  her,  or  in  her  behalf, 
and  she  agreed  to  none  of  the  terms,  condi- 
tions, or  agreements  thereof.  She  believed 
her  husband  to  be,  and  he  was  in  fact,  finan- 
cially able  to  pay  for  tbe  materials,  and  had 
In  fact  bought  paint  from  plaintiff  for  a 
number  of  years,  'and  always  paid  for  it 
She  did  nothing  to  mislead  the  plaintiff.  If 
her  husband  could  be  allowed  to  incumber 
the  estate  of  the  defendant  against  her  will 
and  protest,  such  rights  in  her  separate 
property  granted  to  her  by  law  would  be  of 
little  value,  and  the  husband  could  readily, 
and  in  this  manner,  contract  her  estate  away, 
and  bring  her  to  financial  ruin.  Under  the 
circumstances,  In  this  case  to  allow  a  lien, 
and  thus  permit  her  to  be  stripped  of  the  ti- 


Digitized  by  VjOOQ  l€ 


386 


122  NORTHWESTERN  REPORTER. 


(N,D. 


tie  to  ber  estate,  and  possibly  deprive  ber  of 
a  Bbelter  tor  berself  and  family,  would  be 
contrary  to  equity  and  subverslTe  of  tbat  pro- 
tection which  the  law  intended  should  be 
thrown  around  her  separate  estate. 

We  do  not  think  it  necessary  to  pass  upon 
the  contention  of  appellant  that  the  presump- 
tion mentioned  In  said  section  6237  Is  a  re- 
buttable one,  as  it  has  no  application  to  the 
facts  in  this  case.  We  think  such  presump- 
tion only  applies  where  the  owner  of  the 
premises  has  such  knowledge  of  the  perform- 
ance of  the  labor  and  the  furnishing  of  the 
materials  as  would,  by  her  silent  acquies- 
cence in  such  improvements,  create  an  estop- 
pel against  her  right  to  claim  a  want  of 
consent.  In  the  case  at  bar  defendant  evi- 
dently did  everything  within  reason  In  the 
way  of  protesting  against  the  making  of 
such  improvement  She  did  not  protest  to 
plaintiff  against  furnishing  the  paint,  but 
this  was  not  required,  as  she  had  no  knowl- 
edge that  be  was  furnishing  the  same;  and, 
in  view  of  this  fact,  it  would  be  a  manifestly 
unreasonable  construction  of  the  statute  to 
require  her  to  seek  him  out  in  order  to  give 
him  notice  of  her  objection. 

Section  3314  of  the  Statutes  of  Wisconsin 
of  1898,  as  far  as  material  here,  reads  as  fol- 
lows: "Shall  also  attach  to  and  be  a  lien  up- 
on the  real  property  of  any  person  on  whose 
premises  such  Improvements  are  made,  such 
owner  having  knowledge  thereof  and  con- 
senting thereto."  Section  3314,  supra,  Is 
nearer  like  section  6237  of  the  Revised  Codes 
of  1905  than  the  mechanic's  lien  statutes  of 
any  of  the  states  in  which  the  cases  cited 
by  respondent  were  decided.  We  believe  that 
no  case  can  be  found  in  which  a  lien  was  up- 
held under  facts  similar  to  those  in  the  case 
at  bar.  In  most  of  the  oases  cited  by  re- 
spondent the  owner  not  only  had  knowledge 
of  the  facts,  but  expressly  consented  to  the 
improvements  being  made.  North  t.  La 
Flesh,  73  Wis.  520,  41  N.  W.  633 ;  Lumber  Co. 
V.  Mosher,  88  Wis.  672,  60  N.  W.  264.  In  the 
following  cases  It  has  been  held  that  a  party 
performing  labor  or  furnishing  material  for 
improvements  on  land,  under  a  contract  with 
a  person  not  the  owner,  was  not  entitled  to 
a  Hen:  Coorsen  v.  Zlehl,  103  Wis.  381,  79 
N.  W.  562;  Huntly  v.  Holt,  58  Conn.  445, 
20  Atl.  460,  9  L.  R.  A.  Ill;  De  Klyn  v. 
(Jould,  165  N.  T.  287,  59  N.  B.  95,  80  Am. 
St.  Rep.  719. 

In  Coorsen  v.  Zlehl,  supra,  the  court, 
speaking  through  Justice  Bardeen,  said: 
"The  proof  is  that  she  [the  wife]  was  not 
consulted  before  the  contracts  were  made, 
and  that  she  did  not  in  any  way  sanction  or 
direct  the  work  as  it  progressed.  She  lived 
in  the  building  with  her  husband,  and  un- 
doubtedly knew  of  the  work  as  it  progressed, 
and  from  these  facts  It  is  argued  tbat  she 
is  brought  within  the  terms  of  section  3314." 


He  then  cites  cases  relied  upon  by  counsel 
for  the  plaintiff,  and  continues:  "But  there 
Is  a  clear  distinction  between  these  cases 
and  the  case  at  bar.  In  each  case  there  was 
proof  of  the  express  consent  of  the  owner  to 
the  erection  of  the  building  upon  which  the 
lien  was  claimed.  Here  there  is  not  such 
proof.  •  •  •  Consent  cannot  be  Inferred 
from  mere  silence  under  these  circumstan- 
ces." In  Huntly  v.  Holt,  supra,  the  court 
said:  "Consent  means  the  unity  of  opinion ; 
the  accord  of  mlbds;  to  think  alike;  to  be 
of  one  mind.  Consent  Involves  the  presence 
of  two  of  tuore  persons,  for  without  at  least 
two  persons  there  cannot  be  a  unity  of  opin- 
ion or  an  accord  of  minds,  or  any  thinking 
alike."  When  the  statute  uses  the  words 
"by  the  consent  of  the  owner  of  the  land," 
it  means  that  the  person  rendering  the  serv- 
ice or  furnishing  the  materials  and  the  own- 
er of  the  land  on  which  the  building  stands 
must  be  of  one  mind  In  respect  to  it"  In  De 
Klyn  V.  Goufd,  supra,  the  court  said:  "Mere 
acquiescence  in  the  erection  or  alteration, 
with  knowledge,  is  not  sufficient  evidence  of 
the  consent  which  the  statute  requires.  There 
must  be  something  more.  Consent  is  not  a 
vacant  or  neutral  attitude  in  respect  of  a 
question  of  such  material  interest  to  the 
property  owner.  It  is  affirmative  In  its  na- 
ture. It  should  not  be  implied  contrary  to 
the  obvious  truth,  unless  upon  equitable  prin- 
ciples the  owner  should  be  estopped  from  as- 
serting the  truth."  See,  also,  Clark  v.  North, 
131  Wis.  599,  111  N.  W.  681,  11  L.  R.  A.  (N. 
S.)  764.  and  McClintock  v.  Criswell,  67  Pa. 
183.  True,  the  mechanic's  lien  statutes  of 
Wisconsin  and  other  states  do  not  contain 
the  presumption  mentioned  In  section  6237; 
but,  as  hereinbefore  stated,  we  think  this 
prestmiptlon  has  no  application  to  the  facts 
in  the  case,  at  bar. 

The  trial  court  will  reverse  Its  Judgment, 
and  enter  Judgment  dismissing  the  complaint 
herein. 

FISK    and    ELLSWORTH,    JJ.,    concur;' 
MORGAN,  C.  J.,  not  participating. 

SPALDING,  J.  (concurring  specially).  1 
concur  in  the  reversal,  but  not  for  the  rea- 
sons given  by  my  Associates.  They  work  a 
judicial  repeal  of  the  statute  applicable,  to 
which  I  cannot  assent 


JOHNSON  V.  RICKFORD. 

(Supreme  Court  of  North  Dakota.     June-  2S, 

1909.) 

1.  Animals  (8  50*)  —  Tbespassino  — Feroino 
AND   Fenxe   Laws. 

That  part  of  Bection  1939,  Rev.  Codes  igO.'i, 
originally  passed  as  section  6,  c.  69,  p.  l02. 
Laws  1805,  in  the  words,  "prsvided, .  that  ail 
corral  fence  exclusivfiv  for  the  purposes  of  in- 
closing stacks,  if  outside  of  any  lawful  enclo- 


•For  ottier  caset  see  same  topic  and  aecUon  NUMBER  In  Dee.  *  Am.  Digs.  i!)07  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


N.D.) 


JOHNSON  V.  RICKFORD. 


887 


•are,  ahall  not  b«  less  than  sixteen  feet  dis- 
til ut  from  such  staclc  so  inclosed,  shall  be  snb- 
stantiallr  built  -with  posts  not  more  than  eight 
feet  distant  from  each  othe^,  and  with  not  less 
than  five  strands  of  barbed  fence  wire,  and 
shall  be  not  less  than  five  feet  hieb,"  Is  ap- 
plicable, daring  the  "open  season,**  to  those 
counties  of  the  state  in  which  the  proviaiona  of 
section  1833,  Rev.  Codes  1903,  permitting  live 
stock  to  run  at  large  from  the  Ist  day  of  De- 
cember until  the  Ist  day  of  April  of  each  year, 
have  not  been  abolished  by  an  election  duly 
held  for  that  purpose. 

[Ed.  Note. — For  other  cases,  see  Animals, 
Dec  Di«.  I  50.*] 

2.  Akihals   (I  82*)— Tbespasbiro — FsNcmo 
AND  Fence  Laws. 

In  a  county  of  this  state  in  which  the  pro- 
.  Tisiona  of  section  1933,  Rev.  Ck>des  1905,  are 
operatiTe,  a  party  can  maintain  an  action 
against  the  owner  of  ranging  animals  for  the 
damage  occasioned  by  breach  of  a  lawful  fence, 
onder  the  proviaiona  of  section  1940,  Rev.  Codes 
1905,  only  upon  a  sbowing  that  at  the  time 
of  the  alleged  trespass  he  had  secured  his  prop- 
erty by  a  strong  and  sufficient  fence  against 
the  intrusion  of  live  atock,  and  that,  notwith- 
standing the  protection  afforded  by  such  fence, 
the  animals  have  breached  or  broken  such  fence 
and  destroyed  property  within  the  inclosure. 

[ESd.  Note.— For  other  cases,  see  Animals, 
Dec.  Dig.  i  92.*] 

3.  Animam  (5  50*)— Tbkspassino— Fekcinq 
AND  Fence  Laws. 

A  good  and  sufficient  fence  deemed  in  law 
sufficient  to  exclude  ranging  live  stock,  between 
the  Ist  day  of  December  and  the  1st  day  of 
April  in  each  year,  in  those  counties  in  which 
the  proviaions  of  aection  1933,  Rev.  Codes  1905, 
are  operative,  must  in  height,  strength,  and  dis- 
tance from  inclosed  stacks  comply  with  the  pro- 
visions of  section  1939,  Rev.  Codes  1903,  or 
present  a  barrier  as  effective  for  the  purpose  of 
a  fence  as  that  described  in  that  section. 

[Ed.  Note. — For  other  cases,  see  Animals, 
Dec.  Dig.  g  50.*] 

4.  Animals  (8  92«)—T«E8Passino— Fencing 
AND  Fence  Laws. 

The  party  bringing  an  action  in  damage 
af^ainst  the  owner  of  ranging  animals  during 
the  "open  season"  for  live  stock,  for  breach 
of  an  inclosure  under  the  provUiona  of  section 
1940,  Rev.  Codes  1905,  who  does  not  show  upon 
the  trial  that  at  the  time  of  the  alleged  trespass 
he  has  secured  his  property  against  the  intru- 
sion of  animals  by  a  fence  deemed  in  law  suf- 
ficient to  exclude  them,  fails  to  show  a  liability 
on  the  part  of  the  owner  of  such  animals,  or  to 
establish  a  cause  of  action  against  him. 

[E}d.  Note. — For  other  cases,  see  Animals, 
Dec  Dig.  f  92.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Griggs  Coun- 
ty;  E.  T.  Burke,  Judge. 

Action  by  Emella  Dusbabeck  Johnsoii 
against  Albert  Rlckford.  Judgment  for 
plaintiff,  and  defendant  appeals.  Reversed, 
and  action  dismissed. 

Lee  Combs,  for  appellant  A.  M.  Baldwin, 
tor  respondent 


ELLSWORTH,  J.  As  cause  of  action  the 
plaintiff  and  respondent  alleges:  That  on  and 
prior  to  December,  1905,  she  owned  about  70 
tons  of  hay  stacked  upon  a  tract  of  land  In 
Griggs  county,  which  bay  was  protected  by 


a  good  and  sufficient  fence ;  that  during  tbe 
months  of  December,  1905,  and  of  January 
and  February,  1906,  live  stock  belonging  to 
the  defendant  and  appellant  broke  through 
said  fence  and  destroyed  hay  belonging  to 
plaintiff  to  tbe  amount  of  10  tons  and  of  the 
value  of  $50 ;  that  during  said  period  plain- 
tiff repeatedly  repaired  the  fence  In  question 
and  notified  defendant  that  bis  animals  were 
destroying  her  hay,  and  on  the  12th  day  of 
February,  1906,  caused  notice  to  be  served  on 
defendant  of  the  damage  occasioned  by  his 
stock,  and  the  probable  amount  thereof.  The 
answer  of  defendant  and  appellant  denies 
generally  the  claim  for  damages  of  plaintiff, 
and  as  matter  of  defense  alleges  that  at  all 
times  during  the  months  of  December,  1905, 
and  of  January  and  February,  1906,  his  stock 
were  licensed  by  statute  to  run  at  large,  and 
that  plaintiff  had  not  protected  her  hay  by 
any  proper  or  legal  fence,  as  prescribed  by 
the  laws  of  this  state.  Tbe  action  was  orig- 
inally brought  in  a  Justice  court  of  Griggs 
county,  and  from  a  Judgment  entered  therein 
In  favor  of  plaintiff,  an  appeal  was  taken  by 
the  defendant  and  appellant  to  the  district 
court  of  the  Fifth  Judicial  district  for  Griggs 
county.  In  November,  1907,  tbe  action  came 
on  for  trial  In  the  district  court  and  was 
tried  to  a  Jury.  It  then  appeared,  from  tbe 
evidence  Introduced,  that  In  the  winter  of 
the  year  1905-06,  plaintiff  and  respondent 
had  two  stacks  of  bay,  containing,  as  she  es- 
timated, about  70  tons,  placed  upon  a  certain 
tract  of  land  in  Griggs  county.  Whether  the 
land  on  which  the  stacks  were  placed  belong- 
ed to  plaintiff  does  not  appear.  She  sur- 
rounded the  stacks  by  a  fence  constructed  by 
placing  cedar  posts  17  or  18  feet  apart,  and 
placing  thereon  four  barbed  wires,  the  first 
wire  16  Inches  from  the  ground,  and  the  oth- 
ers above  It  at  Intervals  of  from  8  to  10  Inch- 
es. Tbls  fence  was  placed  at  an  uneven  dis- 
tance from  the  stacks ;  at  some  points  being 
from  1  to  2  rods  distant,  and  at  others  ap- 
proaching to  within  5  feet  and  8  or  10  Inch- 
es of  the  sides  of  the  stacks.  At  these  points 
It  appears,  according  to  the  statement  of  one 
of  the  witnesses  for  plaintiff,  that  the  hay 
could  be  reached  from  outside  tbe  fence  by 
"a  good  strong  bull  or  cow  with  a  long  neck. 
If  he  was  hungry,"  by  putting  bis  head  be- 
tween tbe  wires  and  stretching  them  as  far 
as  the  posts  permitted. 

It  seems  that  cattle  belonging  to°  the  de- 
fendant, at  a  number  of  times  In  the  months 
mentioned,  broke  through  this  fence  and  de- 
stroyed some  of  the  hay  stacked  in  the  in- 
closure. At  another  time  the  snow  drifted 
about  a  portion  of  the  fence  until  it  reached 
above  all  the  wires'  except  one.  As  the  snow 
was  bard  packed,  some  of  tbe  cattle  walked 
upon  the  top  of  the  drift  and  over  the  top 
wire  of  the  fence  and  reached  the  bay  in  this 
way.  After  plaintiff  found  that  stock  was 
breaking  Into  the  Inclosure  about  her  bay- 


•rer  otiMr  easM  sm  same  topic  and  seotlOB  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


388 


122  NORTHWKSTBEN  REPORTER. 


(X.  D. 


stackB,  she  had  stays  placed  between  the 
posts  at  a  distance  of  about  eight  feet  apart 
When  the  snow  accumulated  so  that  the  anl* 
xofkiB  could  walk  over  the  top  of  the  fences 
she  had  it  removed,  or  the  crust  broken  so 
that  the  fence  could  not  be  passed,  except  by 
breaking  It  There  is  also  evidence  that 
plaintiff  on  several  occasions  notlfled  mem* 
hers  of  the  family  of  appellant  that  his  stock 
was  breaking  over  her  fence  and  destroying 
her  hay.  It  further  appeared  that  the  dwell- 
ing of  appellant  was  less  than  one-half  mile 
distant  from  the  haystacks  In  question,  and 
that  appellant  was  accustomed,  during  the 
period  In  question,  to  turn  his  stock  out  up- 
on his  own  premises,  which  adjoined  those  of 
plaintiff,  to  run  at  large  or  "range"  upon  sur- 
rounding unlnclosed  lands.  One  witness  tes- 
tified that,  during  the  winter  of  1905-06,  he 
saw  a  path  in  the  snow  made  by  stock,  which 
started  from  appellant's  yard  and  went  di- 
rectly to  the  haystacks  of  plaintiff. '  None  ot 
the  witnesses  had  at  any  time  seen  appellant 
drive  his  stock  along  this  path  or  by  any  oth- 
er route  upon  plaintiff's  premises  or  to  her 
haystacks,  and  had  not  seen  him  or  any  of 
Ills  employes  driving  his  stock  away  from 
plalntlfT's  stacks.  It  further  appeared  upon 
the  trial  that  there  had  not  been  held  in 
Griggs  county  an  election  by  which  the  provi- 
sions of  section  1933,  Rev.  Ciodes  1905,  or  of 
chapter  44,  Code  Civ.  Proc.  (Rev.  Codes  1905, 
§$  7865-7871),  had  been  abolished  within  that 
county. 

At  the  close  of  plaintiff's  evidence,  the  de- 
fendant moved  the  court  to  direct  the  jury  to 
find  a  verdict  for  the  defendant  upon  the 
ground  "that  the  plaintiff  has  failed  to  estab- 
lish a  cause  of  action  against  the  defendant 
as  alleged  in  plaintiff's  complaint  or  other- 
wise, and  upon  the  further  ground  that  the 
evidence  in  the  case  does  not  establish  any 
liability  on  the  part  of  the  defendant  to  the 
plaintiff,  under  the  facts  and  circumstances 
shown  by  the  evidence  or  alleged  in  plaintiff's 
complaint"  This  motion  being  denied  by  the 
court,  the  defendant  offered  no  evidence,  and 
the  court  submitted  the  case  to  the  Jury  un- 
der an  instruction  that:  "At  the  time  it  is 
alleged  that  this  damage  was  done,  it  was 
law^ful  for  stock  to  run  at  large,  and  during 
these  months  plaintiff  was  required  to  pro- 
tect her  haystacks  against  ranghtg  horses, 
mules,  cattle,  and  sheep."  And  that  It  was 
"the  duty  of  the  plaintiff  to  use  the  ordinary 
precautions  that  common  prudence  would  dic- 
tate to  protect  her  property  from  destruc- 
tion." "The  cattle  of  t;he  defendant  being 
lawfully  at  large  in  this  state,  the  owner  of 
the  cattle  would  not  be  liable  to  the  defend- 
ant, unless  you  believe  from  the  evidence  in 
this  case  that  he  drove  them,  or  caused  them 
to  be  driven,  willfully  onto  the  hay  of  plain- 
tiff. The  law  does  not  contemplate  that  a 
person  who  allows  his  cattle  to  run  at  large, 
under  the  law,  will  willfully  drive  them  onto 
another  person's  grain  or  hay  and  winter 
them  there.    That  is  not  the  intent  ot  the 


law,  and  this  is  the  only  condition  under 
which  you  can  find  for  the  plaintiff  in  this 
case."  The  court  further  instructed  the  Jury 
that  the  provisions  of  law  contained  Jn  sec- 
tion 1939,  Rev.  Codes  1905,  which  has  been 
referred  to  by  counsel  In  this  case,  "does  not 
apply  in  this  cbunty,  so  you  are  Instructed  by 
the  court  that  the  law  in  this  suit  does  not, 
and  did  not,  require  the  plaintiff  to  have  the 
fence  which  was  mentioned  in  the  Code,  aa 
having  posts  set  eight  feet  apart"  The  Jury 
returned  a  verdict  fixing  the  amount  of  plain- 
tiff's damage  at  $40.  Whereupon  Judgment 
was  entered  in  favor  of  plaintiff  and  against 
appellant  for  that  sum,  and  from  such  Judg- 
ment this  appeal  is  taken. 

It  has  long  been  a  settled  rule  of  law  in 
this  state  that  both  the  common-law  principle 
that  the  owner  of  stock  is  liable  in  dam- 
ages for  any  trespass  by  them  upon  the  lands 
of  another,  whether  fenced  or  not  fenced,  as 
well  as  the  statute  declaratory  of  this  prin- 
ciple (section  7865,  Rev.  Codes  1905)  has, 
by  the  provision  of  section  1933,  Rev.  Codes 
1905,  been  abrogated  in  this  state  so  far 
as  it  relates  to  any  such  trespass  committed 
between  the  1st  day  of  December  and  the 
1st  day  of  April,  except  in  those  counties 
in  which  the  provisions  of  section  1933  have 
been  abolished  by  the  voters  of  the  county 
at  an  election  duly  held  for  that  purpose. 
Ely  V.  Rosholt  U  N.  D.  659,  93  N.  W.  8G4. 
As  no  such  election  had  been  held  In  Griggs 
county,  where  this  action  originated,  and  aa 
the  alleged  trespass  occurred  during  the 
months  of  December,  January,  and  February, 
it  is  apparent  even  had  plaintiff  chosen  to 
proceed  by  that  form  of  action,  such  action, 
if  brought  for  damages  occasioned  by  the 
trespass  of  live  stock  upon  unlnclosed  land, 
in  the  absence  of  a  wanton  or  willful  tres- 
pass by  defendant  could  not  be  maintained. 

Judging  from  Its  instructions  to  the  Jury, 
the  trial  court  seems  to  have  entirely  misap- 
prehended the  character  of  the  action.  Plain- 
tiff does  not  complain  of  a  trespass  of  de- 
fendant's live  stock  upon  her  unlnclosed 
land,  and  in  fact  neither  pleads  nor  proves 
that  the  land  where  the  alleged  trespass  oc- 
curred belonged  to  or  was  under  her  control. 
She  states  a  cause  of  action  such  as  is  au- 
thorized by  section  1940,  Rev.  Codes  1905, 
In  favor  of  a  party  who  has  sustained  dam- 
age by  the  breaching  or  breaking  of  a  lawful 
fence  by  cattle  belonging  to  another.  Her 
allegations  that,  her  hay  was  protected  by 
a  good  and  sufficient  fence,  and  that  while 
the  same  was  so  protected,  animals  belong- 
ing to  appellant  broke  through  the  fence 
and  destroyed  the  hay,  places  the  cause  of 
action  upon  very  different  grounds  from  the 
ordinary  suit  for  damage  resulting  from  the 
trespass  of  animals.  As  the  gist  of  such  an 
action  is  the  breach  of  plaintiff's  Inclosure, 
It  necessarily  follows  that  the  plaintiff  in 
bringing  it  must  show  that  he  has  secured 
his  property  by  a  strong  and  sufficient  fence 
against  the  intrusion  of  animals,  and  that, 


Digitized  by  VjOOQ  l€ 


N.D.) 


JOHNSON  V.  RICKFORD. 


before  tbe  owner  of  ttie  cattle  or  animals 
can  be  held  liable  In  damages,  It  must  tie 
shown  that  they  have  broken  a  fence,  deem- 
ed in  law  sufficient  to  exclude  them.  Bly  t. 
Rosholt,  supra;  Chase  v.  Chase,  15  Nev.  2S9; 
Larkln  t.  Taylor,  5  Kan.  434;  N.  0.,  etc.,  R. 
R.  Co.  ▼.  Field,  46  Miss.  573. 

Section  1933,  Rev.  Codes  1905,  was  orig- 
inally enacted  as  part  of  chapter  89,  p.  274, 
Laws  1890.  The  legislative  act  containing 
this  provision  does  not  in  terms  describe  the 
fence  deemed  in  law  necessary  to  protect 
property  against  the  trespass  of  animals  dur- 
ing the  "open  season."  In  1895  a  legislative 
act  was  passed  providing  a  means  whereby 
the  provisions  of  the  general  herd  law  of 
the  state  (now  chapter  44,  Code  Civ.  Proe.) 
might  be  abolished  In  any  of  the  counties 
of  the  state,  and  stock  permitted  to  run  at 
large  therein  during  the  entire  year.  This 
act  provided  that  in  any  county  in  which  an 
election  had  been  held  in  accordance  with 
its  provisions,  and  the  result  of  such  election 
bad  declared  in  favor  of  abolishing  the  herd 
law  "a  fence  constructed  as  hereinafter  de- 
scribed shall  be  sufficient  and  lawful."  Such 
fence,  when  a  "corral  fence  exclusively  for 
the  purpose  of  inclosing  stacks,  If  outside  of 
any  lawful  inclosure,  shall  not  be  less  than 
16  feet  distant  from  such  stacks  so  inclosed, 
shall  be  substantially  built  with  posts  not 
more  than  8  feet  distant  from  each  other, 
and  with  not  less  than  five  strands  of  barb- 
ed fence  wire,  and  shall  be  not  less  than 
five  feet  high.  Any  other  kind  of  fence  or 
barrier  which  is  as  effective  for  the  purpose 
of  a  fence  as  that  above  prescribed  is  here- 
by declared  sufficient  and  lawful."  Laws 
1895.  pp.  102,  103,  c.  69,  U  5,  6,  7;  Rev. 
Codes  1905,  H  1988-1940. 

As  section  1933,  Rev.  Codes  1905,  was  in 
operation  at  the  lime  of  the  passage  of  this 
act,  and  provided  for  an  "open  season"  from 
December  to  April  in  all  c'>nnties  of  the 
state  where  its  provisions  had  not  been 
abolished,  it  is  reasonable  to  suppose  that 
the  Legislature  had  its  provisions  in  contem- 
plation when  passing  the  act  defining  a  law- 
fjil  fence  in  counties  where  cattle  were  per- 
mitted to  run  at  large  throughout  the  year. 
The  language  hereinbefore  quoted  from  sec- 
tions 6,  7,  and  8,  a  69,  pp.  102,  103,  Laws 
1895,  is  general  iq  its  terms  and  applies  to 
,"all  corral  fences  exclusively  for  the  pur- 
pose of  inclosing  stacks."  It  is  expressly 
made  applicable  to  counties  in  which  by  a 
vote  of  the  people  the  provisions  of  chapter 
44,  Code  Civ.  Proc.,  are  abolished.  Section 
1938,  Rev.  Codes  1905.  It  is  therefore  a 
logical  and  reasonable  Inference  that  it  was 
also  intended  to  apply  in  those  counties  in 
which  the  provisions  of  chapter  44  are  abro- 
gated during  a  portion  of  the  year  by  the 
general  operation  of  chapter  1933,  Rev. 
Codes  1905.  It  follows  therefore  that  this 
definition  may  be  regarded  as  a  legislative 
description  of  a  sufficient  and  lawful  corral 
fences   exclnslTely  for   the  purpose   of  in- 


closing stacks,  whether  the  question  of  the 
sufficiency  of  such  fence  arises  in  counties 
having  only  an  "open  season"  for  ranging 
live  stock,  or  In  those  in  which  the  provi- 
sions of  the  herd  law  are  Inoperative  at  all 
seasons  of  the  year.  Under  the  definition  of 
a  "lawful  fence"  contained  in  section  1939, 
Rev.  Codes  1905,  it  is  clear  that  the  fence 
erected  by  plaintiff  around  her  stacks  was 
insufficient  in  several  particulars.  The  posts 
were  17  or  18  feet  apart,  instead  of  8  feet, 
as  required  by  law.  The  fence,  instead  of 
being  at  least  16  feet  from  the  stacks,  ap- 
proached in  places  within  6  feet,  and,  ow- 
ing to  the  long  intervals  between  the  posts, 
presented  a  constant  temptation  to  ranging 
cattle,  which  common  experience  teaches  are 
usually  hungry,  to  press  upon  the  wires  and 
break  it  down.  It  consisted  of  but  4  strands 
of  barbed  wire,  instead  of  5,  and  was  not 
over  46  inches  high,  being  14  inches  short  of 
the  5  feet  prescribed  by  law.  It  is  clear, 
we  think,  that  such  a  fence  In  such  a  situa- 
tion was  not  a  lawful  or  sufficient  fence, 
and  that,  so  far  as  any  trespass  of  appel- 
lant's stock  Is  concerned,  the  stacks  may  be 
regarded  as  unlnclosed. 

Respondent  insists,  however,  that  a  lawful 
and  sufficient  fence  is  to  be  determined  by 
reference  to  section  8231,  Rev.  Codes  1905. 
This  section  is  as  follows:  "In  all  cases 
where  any  law  of  this  state  requires  to  be 
erected  or  maintained  any  fence  or  fences 
for  any  purpose  whatever,  it  shall  be  suffi- 
cient and  a  compliance  with  such  law.  If 
there  shall  be  erected  and  maintained  a 
barbed  wire  fence,  consisting  of  2  barbed 
wires  and  1  smooth  wire,  with  at  least  40 
barbs  to  the  rod,  the  wire  to  be  firmly  fas- 
tened to  the  posts  not  more  than  2  rods 
apart,  with  1  stay  between  the  posts,  the 
top  wire  to  be  not  more  than  52  Inches  high, 
or  less  than  48,  and  the  bottom  wire  not 
less  than  16  Inches  from  the  ground;  or  4 
smooth  wires  with  posts  not  more  than  2 
rods  apart,  and  with  good  stays  not  to  ex- 
ceed 8  feet  apart,  the  top  wire  to  be  not 
more  than  56  Inches  high  nor  less  than  48, 
and  the  bottom  wire  not  less  than  16  inches 
nor  more  than  20  Inches  from  the  ground; 
provided,  that  5  smooth  wires  shall  be  re- 
quired to  constitute  a  legal  partition  fence, 
provided,  that  any  other  fence  authorized  by 
law  shall  also  be  held  a  legal  fence." 

Plaintiff  insists  that  the  fence  around 
her  stacks  was  a  better  fence  than  is  re- 
quired by  this  section,  as  it  consisted  of 
posts  placed  at  intervals  of  about  1  rod,  to 
which  were  attached  4  barbed  wires,  instead 
of  2  barbed  and  1  smooth  wire,  or  4  smooth 
wires,  as  there  provided.  It  will  be  ob- 
served, however,  that  this  section  of  the  stat- 
ute is  not  applicable  to  the  facts  of  this  case. 
It  applies  only  in  cases  where  "a  law  of 
this  state  requires  to  be  erected  or  maintain- 
ed any  fence  or  fences  for  any  purpose  what- 
ever." The  law  providing  for  the  "open 
season"  does  not  define  or  require  any  fence 


Digitized  by  VjOOQ  l€ 


122  NORTHWBSTBBN  BEPORTBH. 


QH.O. 


or  fences;  whereas,  the  law  of  1893,  under 
a  section  of  which  plaintiff  is  proceeding  In 
bringing  her  action,  prorlded  for  a  very 
much  higher  and  stronger  fence.  It  is  ap- 
parent at  a  glance  that  the  fence  provided 
for  by  section  3231  is  entirely  Insufficient  as 
a  eorral  fence  for  the  protection  of  hay- 
stacks, especially  when  placed  within  6  feet 
of  the  stacks.  The  special  provision  for 
fences  of  this  character  contained  In  chap- 
ter 69,  p.  101,  Laws  1895,  is  saved  from  an 
Implied  repeal  by  the  clause  contained  in 
section  3231  "that  any  other  fence  authorized 
by  law  shall  also  be  held  a  legal  fence." 

It  Is  very  apparent,  not  only  from  her  plead- 
ing, but  from  the  evidence  Introduced,  that 
plaintiff  did  not  claim  or  In  any  sense  rely 
upon  an  action  for  damage  against  appellant 
for  trespass  of  his  animals  upon  uninclosed 
premises.  The  question  of  a  willful  driving 
of  the  cattle  to  plaintiff's  land  was  submitted 
by  the  trial  court  to  the  Jury  under  an  er- 
roneous view  of  the  character  of  the  action. 
There  is,  however,  neither  pleading  nor  evl- 
4lence  to  sustain  a  finding  of  the  Jury  against 
Appellant  on  this  point 

As  it  is  the  gist  of  the  action  which  plain- 
tiff has  brought  to  show  that  the  live  stock 
of  plaintiff  have  broken  a  fence  deemed  in 
law  sufficient  to  exclude  them,  It  follows  from 
the  foregoing  premises  that  she,  upon  the 
trial,  failed  to  establish  a  cause  of  action 
against  appellant  as  alleged  in  her  complaint, 
and  that  the  evidence  Introduced  does  not 
establish  a  liability  on  his  part,  and  that 
the  trial  court  should  have  granted  the  mo- 
tion of  defendant  made  at  the  close  of  all 
the  testimony  offered,  for  a  directed  verdict 
in  his  favor. 

The  Judgment  of  the  district  court  Is  re- 
versed, and  it  Is  directed  to  enter  an  order 
dismissing  the  action.  All  concur,  except 
MORGAN,  C.  J.,  who  did  not  participate. 


DMSTED  v.  COLGATE  FARMERS'  ELEVA- 
TOR CO. 

(Supreme  Court  of  North   Dakota.     June  28, 
1909.) 

1.  Masteb  and  Servant  (8S  288,  289*)— In- 

JUBIES   TO  SBTEVANT— OONTBIBUTOBY    NeOLI- 

OENCE — Questions  fob  Jdbt. 

Plaintiff,  a  minor,  between  19  and  20  years 
of  age,  was  injured  while  in  defendant's  em- 
ploy in  attempting  to  operate  a  dangerous  con- 
trivance which  defendant's  manager  bad  caused 
to  be  recently  Installed  for  the  purpose  of  util- 
izing power  from  a  gasoline  engine  used  at  de- 
fendant's grain  elevator  in  pulling  cars  into 
position  for  loading  grain.  Such  contrivance 
consisted  of  a  wooden  drum  or  capstan  which 
was  securely  bolted  to  the  shaft  connecting  the 
engine  to  the  machinery  in  the  elevator,  and  also 
a  long  rope  extending  from  such  drum  or  cap- 
stan to  a  pulley  attached  to  the  rail  of  the 
railroad  track  about  30  feet  distant  and  at  riglit 
angles  therewith  and  thence  along  the  track 
to  the  car  to  be  moved.  The  scheme  was  to  pull 
the  car  by  causing  the  rope  to  wind  upon  such 


capstan  as  the  shaft  revolved,  and,  in  order  to 
operate  the  same,  it  was  necessary  for  some  one 
to  stand  back  of  such  capstan  and  pull  the 
rope  sufficiently  taut  to  create  enough  friction 
to  cause  such  rope  to  wind.  Plaintiff  was  by 
defendant's  manager  assigned  to  such  duty,  and 
he  was  injured  during  the  first  attempt  to  op- 
erate the  contrivance  by  l>eing  caught  by  such 
rope  and  pulled  upon  and  around  such  drum. 
_  Held,  that  the  c|uestionB  of  defendant's  neg- 
ligence, of  plaintiff's  contributory  negligence, 
and  his  assumption  of  the  risks  were,  under  the 
facts,  properly  for  the  Jury. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  H  1068-1132;  Dec.  Dig.  §S 
288,  288.*] 

2.  Master  and  Sebvant  (§8  217,  218,  231.  236, 
24.5,  248*)  —  CoNTBiBtrroBy  Neoligenck  — 
AssxmPTioN  or  Risk. 

The  rules  of  law  relative  to  the  respective 
duties  and  rights  of  master  and  servant  regard- 
ing obvious  risks  of  the  service  and  in  respect 
to  negligence,  assumption  of  risk,  and  contribu- 
tory negligence  are  stated  at  length  in  the  opin- 
ion. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  §8  5T4-609,  675-677.  681, 
682,  723-742,  778-788,  801-804 :  Dec.  Dig.  fi 
217,  218,  231.  238,  245,  248.*/ 

3.  JxjBT  (8  34*)- Bight  to  Jubt  Tbiai/— In- 

FBINOEMENT. 

At  the  close  of  plaintiff's  case,  defendant 
moved  for  a  directed  verdict  which  motion  was 
denied  and  an  exception  taken.'  At  the  close 
of  defendant's  testimony,  and  after  both  par- 
ties had  rested,  such  motion  was  renewed  and 
a  like  ruling  made;  defendant  saving  an  ex- 
ception. Thereafter  plaintiff  asked  the  court 
to  instruct  the  jury  that  the  only  question  for 
them  to  consider  was  the  question  of  the  ex- 
tent of  the  injury,  and  the  amount  of  damage; 
it  being  plaihtiCfs  contention  that  the  evidence 
was  conclusive  in  his  favor  upon  all  other  is- 
sues. Such  request  for  instruction  was  grant- 
ed, and  defendant  excepted. 

JUeld.  that  such  ruling  was  prejudicial  error. 
Defendant  was  improjierly  deprived  of  its  right 
to  a  trial  by  jury  of  all  the  issues,  such  right 
not  having  been  waived,  and  the  trial  court 
was  not  warranted  in  the  assumption  that  de- 
fendant in  making  its  said  motions  thereby 
w&ived  a  jury,  and  submitted  all  issues  to  the 
court  for  decision. 

[Ed.  Note.— For  other  cases,  see  Jury,  Cent 
Dig.  88  233-235;   Dec.  Dig.  8  34.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court  Cass  County; 
CMias.  A.  Pollock,  Judge. 

Action  by  Ray  Umsted,  by  Albert  Umsted, 
bis  guardian  ad  litem,  against  the  Colgate 
Farmers'  Elevator  Company.  Judgment  for 
plaintiff,  and  defendant  appeals.  Reversed, 
and  new  trial  ordered. 

Ball,  Watson,  Young  &  Hardy,  for  appel- 
lant   W.  J.  Courtney,  for  respondent 

FISK,  J.  Plaintiff,  as  guardian  ad  litem 
for  one  Ray  Umsted,  recovered  Judgment 
against  defendant  in  the  court  below  for  the 
sum  of  $5,000  as  damages  for  the  alleged  neg- 
ligence of  the  defendant,  resulting  in  serious 
personal  injury  to  such  minor.  At  the  conclu- 
sion of  the  plaintltTs  testimony,  defendant 
moved  for  a  directed  verdict,  which  motion 
was  denied,  and  an  exception  taken.    At  the 


•For  other  cases  sea  saine  topic  and  tecUon  NUMBER  Id  Dec.  A  Am.  Digs.  190T  to  data,  *  Reporter  Indaze* 


Digitized  by  VjOOQ  l€ 


N.D.) 


UMSTED  ▼.  COLGATE  FARMERS'  ELEVATOR  CO. 


891 


close  of  an  the  testimony,  defendant  renewed 
its  motion  for  a  directed  verdict,  which  was 
also  denied,  tivfi  an  exception  saved.  There- 
after, on  plaintifTs  motion,  the  trial  court, 
over  defendant's  objection,  instructed  the 
Jury  that  the  sole  question  for  them  to  deter- 
mine was  the  extent  of  the  damage  suffered 
by  plaintiff  on  account  of  his  Injuries,  to 
wUch  ruling  defendant  excepted.  On  all  oth- 
er issues  the  trial  court  subsequently  made 
findings  of  fact  favorable  to  plaintiff.  There- 
after defendant  moved  in  the  alternative  for 
Judgment  notwithstanding  the  verdict  or 
for  a  new  trial.  The  latter  motion  was  de- 
nied and  an  exception  taken. 
'  The  facts  necessary  to  a  correct  under- 
standing of  the  questions  presented  by  the 
appeal  are  not  seriously  In  dispute,  and  are 
as  follows:  Defendant  is  a  corporation  own- 
ing and  operating  a  grain  elevator  at  Col- 
gate. The  power  necessary  to  operate  the 
machinery  in  this  elevator  is  generated  by  a 
gasoline  engine  located  some  distance  from 
the  elevator  and  connected  by  a  shaft  which, 
when  in  motion,  makes  about  200  revolutions 
per  minute.  One  Borneman  was  in  charge 
of  said  elevator  as  manager,  and  the  said 
Ray  Umsted,  the  person  injured  and  who  was 
between  19  and  20  years  of  age  at  the  time 
of  the  injury,  was  employed  to  assist  Borne- 
man in  operating  such  elevator.  It  frequent- 
ly became  necessary  to  move  cars  into  posi- 
lion  for  loading  grain,  and  this  was  done  by 
Ray  with  the  use  of  a  crowbar.  Some  time 
prior  to  the  accident  Borneman  and  this 
young  man  on  several  occasions  discussed 
tbe  advisability  and  feasibility  of  providing 
a  contrivance  whereby  power  from  the  en- 
gine which  operated  the  elevator  could  be 
used  In  moving  cars  back  and  forth,  and  the 
following  scheme  was  finally  adopted:  A 
wooden  capstan  or  drum  was  securely  bolted 
onto  the  shafting  between  the  engine  house 
and  the  elevator  building,  and  a  rope  was 
to  be  fastened  to  tbe  car  and  run  through  a 
pulley  to  be  fastened  to  the  rail  on  the  rail- 
road track  opposite  the  capstan,  and  around 
the  latter,  and  was  to  be  operated  by  pulling 
the  rope  sufficiently  tight  to  enable  tbe  drum 
or  capstan,  on  account  of  the  friction,  to 
wind  the  rope  as  tbe  shaft  revolved.  The 
constmction  of  such  contrivance  and  the 
manner  of  its  operation  may  best  be  describ- 
ed by  quoting  from  the  testimony. 

Plaintiff  testified:  "While  I  was  there 
several  improvements  were  made.  Among 
tbese  was  a  car  puller.  H.  B.  Borneman  in- 
stalled it.  Tim  Buss  did  the  work.  I  saw 
him  do  it,  and  was  there  when  be  did  it. 
•  •  •  This  car  puller  was  a  cylinder 
made  out  of  about  4x6  about  3  feet  long  and 
round  in  the  center,  and  put  on  the  main 
shaft  with  eight  bolts,  and  there  was  an  iron 
pulley  fastened  to  the  rail  about  30  feet  from 
tbe  shaft  and  a  rope  went  from  the  drum 
through  the  pulley  and  up  to  a  car,  and  I  was 
to  pull.  *  •  •  I  was  Instructed  to  put 
the  rope  around  the  drum  and  pull  the  slack 


up.  Borneman  Instructed  me.  •  •  •  He 
told  me  to  put  that  rope  around  the  drum, 
and  explained  bow  to  do  it,  and  told  me  to 
stand  back  of  the  drum  and  pull  the  slack 
to  make  the  rope  bind  tight  enough  on  the 
drum  to  pull  the  car.  lie  told  me  to  pull 
that  slack  and  I  did  so,  and  the  drum  slid 
and  burned  the  rope,  and  he  threw  the  en- 
gine out  of  gear  and  told  me  to  take  an- 
other hitch  around  the  drum,  and  Mr.  Foster 
also  told  me,  and  they  both  came  out  and 
showed  me  how  to  do  it,  and  I  did  so,  and 
he  goes  back  to  tbe  elevator  and  threw  the 
engine  in  gear  again,  and  it  started  about  200 
revolutions  a  minute  and  tbe  rope  broke 
instantly,  and  I  was  caught  by  tbe  spring  of 
the  rope  coming  back.  It  caught  me  and 
threw  me  around  this  drum."  Borneman  tes- 
tified: "Ray  Umsted  went  to  work  in  the 
elevator  some  time  in  August  I  had  quite 
a  few  talks  with  him  about  a  car  puller. 
Tbese  talks  came  up  at  intervals,  and  we 
talked  how  we  was  to  make  one,  and  de- 
cided to  get  a  capstan  or  drum.  We  had  a 
cut  or  picture  of  a  puller;  not  like  this  Ex- 
hibit B.  Tbe  puller  was  oral  like,  and  the 
rope  would  stay  inside,  and  there  would  be 
no  chance  for  the  rope  to  catch.  •  *  •  I 
did  not  see  Exhibit  B  put  on.  I  was  away. 
When  I  came  back,  I  got  sight  of  it,  and  im- 
mediately told  Ray  to  take  it  off  at  once.  I 
felt  out  of  patience  that  the  thing  was  on 
there.  Ray  said:  'Can't  we  try  it  before  we 
take  It  off?'  I  said  that  'We  hadn't  better 
try  it;  but  to  satisfy  you  we  will.' "  This 
witness  then  states  that  Ray  was  to  handle 
the  rope  by  standing  back  of  the  capstan  and 
keeping  such  rope  taut.  Among  other  things 
he  says:  "If  it  was  going  too  fast,  he  was 
to.  let  go  of  it  a  little,  and  work  it  off  and 
on  so  as  to  poll  the  car."  This  witness  testi- 
fied that  he  considered  the  contrivance  im- 
practicable, and  he  did  not  want  to  use  It, 
but  Ray  was  anxious  to  try  the  same,  and 
he  gave  him  a  chance  to  satisfy  his  curiosity. 
He  describes  the  manner  of  the  Injury  in- 
substance  as  follows:  "The  rope  was  about 
300  feet  in  length.  The  portion  not  in  use 
was  right  behind  tbe  machine  alongside  of 
Ray  back  of  the  drum.  The  rope  was  wound 
once  around  the  drum.  He  was  back  of  the 
drum  holding  the  rope.  I  fastened  the  rope 
to  the  car.  Umsted  went  to  the  drum.  I 
went  to  the  engine.  The  pile  of  rope  was  lu 
a  coll  Just  at  his  left  I  started  the  en- 
gine which  started  the  shaft  revolving.  Its 
speed  is  iabout  120  revolutions  per  minute.  It 
starts  almost  full  speed.  I  let  it  run  prob- 
ably half  a  minute,  then  put  it  back  on  tbe 
loose  pulley,  stopping  tbe  shaft  from  revolv- 
ing, and  went  out  I  saw  the  contrivance 
was  not  working.  I  went  to  where  Ray 
was.  The  surplus  rope  was  colled  up  on  the 
ground  Just  at  his  left  side  about  a  foot 
high.  I  said  to  him  to  keep  away  from  the 
rope  on  the  ground,  because  it  looked  danger- 
ous. When  I  last  saw  him,  be  was  standing 
there  holding  the  rope  as  I  described.     I 


Digitized  by  VjOOQ  IC 


392 


122  NORTHWESTBBN  REPORTER. 


(N.D. 


went  to  the  engine  room  and  started  the  ea- 
glne  again.  I  saw  tbe  rope  break  Jnst  at  the 
same  time  I  slipped  the  belt  back  onto  the 
loose  pulley.  It  was  all  done  in  an  Instant. 
The  rope  raised  up  about  a  foot  from  the 
ground ;  that  Is,  to  its  natural  height.  I  ex- 
amined the  rope,  and  found  that  it  had  not 
gone  through  the  block,  and  that  it  broke 
right  close  up  to  the  car.  It  was  a  three- 
quarter  inch  rope.  I  helped  take  Ray  out 
and  think  there  were  two  strands  around  his 
ankle;  can't  say  how  much  rope  was  wrap- 
ped around,  the  pulley  when  we  took  Ray  out" 
Ray  wa^  caught  in  some  manner  by  the  rope 
catching  and  pulling  him  onto  the  shaft 
which  caused  his  injury.  The  exact  cause 
of  the  Injury  Is  not  clear  from  the  testimony. 
Both  Borneman  and  the  witness  Foster  agree 
that,  when  Ray  put  the  rope  around  the  cap- 
stan the  second  time,  he  did  not  put  the  en- 
tire coil  of  rope  around  as  be  had  been  in- 
structed to  do,  but  made  a  loop  and  put  that 
over,  and  it  is  the  theory  of  the  defense  that, 
on  starting  the  engine,  tbe  second  time  the 
slack  rope,  which  was  laying  in  the  coil, 
counterwound  on  the  capstan  and  Ray's  left 
foot  became  entangled  in  such  rope  puUlng 
him  upon  the  revolTlng  shaft,  and  this  is  un- 
doubtedly correct,  as  it  is  impossible  to  dis- 
cover from  the  testimony  how  the  Injury 
could  have  happened  in  any  other  way. 

In  disposing  of  this  appeal,  however,  in  so 
far  afr-t^e  errors  assigned  upon  the  ruling  of 
the  trial  court  In  denying  defendant's  mo- 
tions for  a  directed  verdict  and  for  Judgment 
non  obstante  veredicto  are  concerned,  it  is 
our  duty  to  construe  the  testimony  in  the 
most  favorable  light  to  the  plaintiff.  We  will 
therefore  assume  the  correctness  of  his  testi- 
mony as  to  how  the  accident  happened,  which 
is  to  the  effect  that,  after  the  first  attempt  to 
operate  the  contrivance,  he  put  the  entire 
coll  of  rope  around  the  capstan  again  as  di- 
rected by  Borneman,  and  that.  Immediately 
after  the  shaft  commenced  to  revolve  on  the 
second  attempt,  the  rope  broke  between  the 
ear  and  the  pulley,  and  plaintiff  in  some  un- 
known manner  was  caught  by  the  rope  which 
sprang  back,  and  was  thereby  pulled  upon 
the  revolving  shaft  or  capstan,  receiving  the 
injuries  complained  of.  Even  in  the  light  of 
these  facts  we  are  at  a  loss  to  understand 
how  defendant  can  be  held  liable  for  plain- 
tiff's injuries  as  a  matter  of  law.  Plaintiff 
was  about  10%  years  of  age,  and,  so  far  as 
the  testimony  discloses,  possessed  average  in- 
telligence, and  was  capable  of  exercising  the 
discretion  aud  Judgment  of  the  average  per- 
son of  his  age.  So  far  as  the  record  disclos- 
es, he  was  equally  as  well  qualified  to  under- 
stand the  dangerous  character  of  such  contri- 
vance as  the  witness  Borneman,  and  be  cer- 
tainly bad  Just  as  much  opportunity  as  did 
Borneman  to  acquire  knowledge  thereof. 
They  talked  over  together  on  several  occa- 
sions the  advisability  and  feasibility  of  in- 
stalllDg  such  car  puller,  and  plaintiff  was 
partially  Instrumental  In  procuring  the  same 


to  be  installed,  was  present  and  saw  it  In- 
stalled, and  asBisted  Borneman  in  procuring 
and  adjusting  the  rope  to  such  contrivance. 
In  view  of  these  facts,  we  are  forced  to  the 
conclusion  that  although  Borneman  acted  as 
vice  principal  In  installing  such  car  puller, 
and  hence  his  negligence  was  the  negligence 
of  the  defendant,  we  think  It  very  clear  tliat, 
unless  a  Jury  was  waived,  the  questions  as 
to  whether  plaintiff  voluntarily  assumed  tbe 
risk  incident  to  the  operation  thereof,  and  as 
to  whether  he  was  guilty  of  negligence  which 
contributed  proximately  to  cause  his  Injuries, 
were  questions  of  fact  for  determination  by 
the  Jury.  The  doctrine  of  "the  last  dear 
chance"  Invoked  by  respondent's  counsel  has 
no  application  to  the  facts  in  this  case.  Such 
doctrine  applies  only  to  a  case  where  the 
master  knew  of  the  plaintifTs  peril,  and 
might  have  obviated  the  Injury,  but  failed  to 
do  so.  While  the  testimony  discloses  that 
Borneman  had  but  little  confidence  In  tbe 
practicability  of  the  contrivance,  It  does  not 
appear  that  he  possessed  superior  knowledge 
or  Information  to  that  possessed  by  the  plain- 
tiff that  the  same  was  dangerous,  or  that 
plaintiff's  position  near  snch  drum  or  cap- 
stan was  necessarily  perilous.  In  other 
words,  plaintiff  and  Borneman,  so  far  as  the 
record  discloses,  apparently  stood  on  an 
equal  footing  In  this  regard,  and  It  does  not 
appear  that  the  latter  could  have  avoided  the 
Injury  after  learning  of  the  actual  danger 
which  threatened  the  plaintiff.  The  Jury 
would  have  a  right  to  say  that,  if  it  was  an 
act  of  carelessness  and  negligence  on  the  mas- 
ter's part  to  install  and  attempt  to  operate 
such  contrivance,  It  was  equally  an  act 
of  carelessness  and  negligence  on  plaintiff's 
part  to  co-operate  with  Borneman  In  the  in- 
stallation and  attempted  operation  thereof. 
Plaintiff  had  equal  opportunity  with  Borne- 
man for  observing  the  dangerous  character  of 
such  contrivance,  and.  if  he  knew  of  and  ful- 
ly appreciated  the  danger,  he  should  be  held 
to  have  voluntarily  assumed  the  risk  of  at- 
tempting to  operate  the  same;  the  risk  at- 
tendant upon  its  operation  being  as  easily 
discernible  by  him  as  by  Borneman.  The 
rules  of  law  governing  cases  of  this  character 
are  so  well  settled  that  we  deem  it  unneces- 
sary to  do  more  than  to  briefly  refer  thereto. 
The  servant  has  a  right  to  assume  and  to 
rely  upon  the  assumption  that  the  master  has 
provided  a  reasonably  safe  place  for  him  to 
work,  unless  such  place  Is  obviously  and 
necessarily  dangerous;  but  the  master  is 
not  required  to  Instruct  or  protect  the  serv- 
ant against  obvious,  known,  and  necessary 
dangers,  unless  the  servant,  by  reason  of 
his  youth,  inexperience,  and  lack  of  Intelli- 
gence, is  unable  to  fully  understand  and  com- 
prehend the  nature  and  extent  of  such  dan- 
gers. It  Is  the  master's  duty  to  protect, 
warn,  and  Instruct  young  and  Inexperienced 
employes  as  to  the  dangers  of  the  employ- 
ment if  the  work  is  such  that  either  ex- 
perience or  instruction  is  necessary  to  en- 


Digitized  by  LjOOQ  l€ 


N.D.) 


UMSTBD  V.  COLGATE  FARMERS'  ELEVATOR  CO. 


393 


able  them  to  do  It  with  safety.  The  general 
rules  covering  the  questions  of  defendant's 
negligence  and  of  plalntlfTs  contributory 
negligence  and  assumption  of  the  risk  under 
analogous  facts  are  elementary  and  well 
settled.  Eivery  conceivable  proposition  which 
can  arise  In  such  cases  is  very  fully  and  ac- 
curately treated,  and  the  authorities  cited 
in  the  articles  on  Negligence,  Contributory 
Negligence,  and  Master  and  Servant  in  ^ 
Cyc.  400  and  26  Cyc.  921,  respectively ;  also 
In  21  Am.  ft  Eteg.  Ency.  of  Law  (2d  Ed.)  465 ; 
7  Id.  368;  20  Id.  3;  4  Cur.  Law,  640,  See, 
also,  the  valuable  note  on  Assumption  of 
Risks  in  7  A.  &  E.  Ann.  Cas.  436,  and  on  the 
"Right  of  Recovery  by  Employes  Accqitlng 
Extrahazardous  Duties"  in  97  Am.  St.  Rep. 
8S4.  In  the  note  last  referred  to  the  follow- 
ing rules,  among  others,  are  correctly  stated 
with  many  authorities  in  support  thereof 
relative  to  assumption  of  risks  and  con- 
tributory negligence.  After  stating  the  gen- 
eral rights  and  duties  of  the  master,  it  is 
said:  "If  a  master  has  discharged  the  fore- 
going duties  which  the  law  Imposes  upon 
him,  then  a  servant  voluntarily  engaging 
In  a  dangerous  or  extrahazardous  employ- 
ment assumes  the  ordinary  risks  Incident 
thereto  which  are  known  or  obvious  to  him. 
And  this '  doctrine  applies  as  well  to  those 
risks  which  first  arise  or  become  known  to 
the  servant  during  the  service  aa  to  those 
In  contemplation  at  the  original  hiring. 
Moreover,  It  applies  alike  to  all  risks,  wheth- 
er they  arise  from  the  negligence  of  fellow 
servants,  insufflciency  of  workmen,  method 
of  work,  defective  tools,  appliances  and  ma- 
chinery, or  dangerous  premises.  •  •  • 
However,  the  rule  that  a  servant  assumes 
the  ordinary  risks  of  his  employment  pre- 
supposes that  the  master  has  performed  the 
duties  of  caution,  care,  and  vigilance  which 
the  law  casts  upon  him.  It  is  only  those 
risks  which  cannot  be  obviated  by  the  adop- 
tion of  reasonable  measures  of  precaution 
by  the  master  that  the  servant  assumes. 
And  the  doctrine  of  assumption  of  risks  ap- 
plies only  to  known  dangers  or  those  which 
are  so  obvious  as  to  be  readily  perceived. 

*  *  *  It  is  the  duty  of  a  servant  to  use 
reasonable  care  to  Inform  himself  of  the 
hazards    to    which    he    may    be    exposed. 

*  *  *  He  is  bound  to  use  his  eyes  to 
see  that  which  Is  open  and  apparent  to  a 
prudent  man.  •  *  *  But  he  need  not 
Inspect  appliances  and  premises  to  deter- 
mine whether  they  are  safe.  Be  has  a  right 
to  rely  on  his  master's  Inquiry  because  It  Is 
the  tatter's  duty  to  Inquire;  and  he  may  as- 
sume that  his  master  has  discharged  his 
duty  and  made  Inquiry.  The  fact  that  a 
servant  has  as  good  an  opportunity  as  his 
master  to  know  of  defects  Involving  risks 
does  not  necessarily  charge  him  with  their 
assumption  or  with  contributory  negligence. 
Starr  v.  Kreuzberger,  129  OaL  123,  61  Pac. 
787,  79  Am.  St  Rep.  92;  Ehlen  v.  O'Donnell, 
206  111.  38,  68  N.  E.  766.    •    •    *    In  de- 


termining the  Issue  of  assumption  of  risk, 
regard  must  be  had  to  the  age,  experience, 
and  mental  capacity  of  the  employe  with  a 
view  of  ascertaining  whether  be  knew  and 
appreciated  the  danger.  •  •  •  where  a 
servant  in  obedience  to  the  requirements  of 
his  mastw  incurs  the  risk  of  machinery 
which,  though  dangerous,  Is  not  so  much  so 
as  to  threatoi  Immediate  Injury,  or  when 
It  is  reasonably  probable  that  It  may  be  safe- 
ly used  by  extraordinary  caution  or  skill, 
he  Is  not  thus  guilty  of  concurrent  negli- 
gence, and  the  master  Is  liable  for  a  result- 
ing accident.  •  *  *  <A  man  who  enters 
on  a  necessarily  dangerous  employment  with 
his  eyes  open,'  says  Chief  Justice  Cockbum, 
takes  It  with  Its  accompanying  risks.  On 
the  other  hand.  If  the  danger  Is  concealed 
from  htm  and  an  accident  happens  before 
he  becomes  aware  of  It,  *  *  *  he  may 
hold  the  employer  liable.'  The  expression 
Is  often  met  with  In  the  books  that  a  serv- 
ant assumes  the  risks  of  an  employment 
when  they  are  as  apparent  to  him  as  to  the 
master,  or  when  he  has  equal  means  with 
the  master  of  knowing  them.  But,  as  has 
been  very  aptly  observed,  the  master  has 
no  rl^t  to  assume  the  servant  will  use 
such  means  of  knowledge,  because  it  is 
not  part  of  the  duty  of  the  servant  to  in- 
quire into  the  sufficiency  of  these  things. 
The  servant  has  a  right  to  rely  upon  the 
master's  Inquiry,  because  It  Is  the  master's 
duty  so  to  Inquire,  and  the  servant  may 
Justly  assume  all  these  things  are  fit  and 
suitable  for  the  use  he  is  directed  to  make 
of  them.'  Magee  v.  Nor.  Pac.  R.  R.  Co.,  78 
Cal.  430.  21  Pac.  114,  12  Am.  St.  Rep.  69. 
And,  even  when  they  have  equal  knowledge 
of  the  danger,  it  must  be  remembered'  that 
master  and  servant  do  not  stand  on  terms 
of  equality.  The  position  of  the  servant 
is  one  of  sntwrdlnation  and  obedience,  and 
be  has  a  right  tp  rely  on  the  supposed  su- 
perior skill  and  knowledge  of  the  master. 
He  is  not  entirely  free  to  act  en  his  own 
suspicions  of  danger,  and  be  cannot  be 
deemed  guilty  of  contributory  negligence  In 
obeying  an  order,  unless  the  danger  is  so 
glaring  that  a  reasonably  prudent  man  would 
not  Incur  It  Stephens  v.  Hannibal  &  St  J. 
R.  Co.,  96  Mo.  207,  0  S.  W.  689,  9  Am.  St 
Rep.  836;  Halliburton  v.  Wabash  R.  Co., 
58  Mo.  App.  27.  •  •  *  WhQe  an  employ* 
Is  generally  held  to  assume  the  ordinary 
risks  of  the  service  which  are  known  or  ap- 
parent to  hlffl,  still  mere  knowledge  of  a  risk 
or  danger,  without  a  full  appreciation  and 
comprehension  of  it.  Is  not  conclusive  against 
his  right  of  recovery  in  the  event  of  in- 
jury. •  •  *  There  is  a  distinction  be- 
tween knowledge  of  defecte  In  premises 
and  appliances  and  knowledge  of  the  risks 
and  dangers  that  result  from  such  defects. 
If  an  employe  has  knowledge  of  a  defect 
or  is  chargeable  with  notice  of  It  because 
obvious,  but  Is  not  aware  of  the  danger  in- 
cident to  and  attending  it,  he  Is  not  preclud- 


Digitized  by  VjOOQ  l€ 


394 


122  NORTHWESTERN  REPORTER. 


(N.n 


ed  from  recovering  damages  Incurred  by  rea- 
son of  such  defect.  •  »  •  The  assump- 
tion of  risks  must  rest  ui>on  positlTe  knowl- 
edge of  the  precise  danger,  or  upon  reason- 
able means  of  such  knowledge,  and  not  on 
vague  surmise  of  possible  dangers.  A  serv- 
ant occupies  a  position  of  subordination, 
and  may  within  reasonable  bounds  rely  on 
the  presumed  superior  knowledge  and  Judg- 
ment of  his  master.  Obedience  is  his  pri- 
mary duty.  When  ordered  to  perform  work 
which  Is  not  obviously  dangerous  or  which 
Is  of  such  a  character  that  he  cannot  see 
that  it  cannot  be  done  with  safety,  or  about 
which  there  may  be  a  difference  of  opin- 
ion as  to  the  danger,  he  is  not  called  upon 
to  set  up  his  own  Judgment  against  that  of 
his  superior,  but  may  rely  on  his  master's 
Judgment  and  execute  his  orders,  notwith- 
standing suspicions  and  misgivings  of  his 
own.  *  •  •  The  law  would  seem  plain 
where  the  menace  or  danger  is  so  uncertain 
as  to  cause  discussion  between  the  employ^ 
and  the  employer  with  the  result  that  the 
employer  dissuades  the  employ^  of  his  ap- 
prehension that  the  doctrine  of  assumption 
of  risks  cannot  be  Invoked.  Ooldthorp  v. 
Clark-Niekerson  Lbr.  Co.,  31  Wash.  467,  71 
Pac'lOGl;  Harder  Min.  Co.  v.  Schmidt,  104 
Fed.  282,  43  C.  C.  A.  632.  ••  •  There 
may  he  a  modification  of  the  doctrines  of  as- 
sumption of  risk  and  contributory  negligence 
when  a  servant  responds  to  the  direct  and 
express  command  of  the  master  or  his 
agent,  so  that  be  may  recover  for  Injurlea ; 
sustained  when  otherwise  he  would  be  with- 
out a  remedy.  •  *  *  It  is  the  duty  of 
an  employe  to  submit  himself  to  the  reason- 
able demands  of  his  employer,  not  only  as 
to  the  work  to  be  done,  but  as  to  the  man- 
ner of  doing  it;  and  it  is  his  right  to  as- 
sume that  bis  employer  will  take  the  nec- 
essary precautions  to  secure  safety,  and  wlU 
not  expose  him  to  unnecessary  danger. 
*  *  *  But  a  servant  is  not  under  all  cir- 
cumstances and  at  all  hazards  bound  to 
obey  the  orders  of  bis  master.  Obedience 
to  an  order  may  so  manifestly  Jeopardize 
the  safety  of  the  servant  as  to  not  only  Jus- 
tify, but  to  demand,  disobedience.  If  he 
knows  and  appreciates  the  danger  to  which 
obedience  to  an  order  will  subject  him,  if  the 
danger  Is  so  obvious  and  glaring  that  no  per- 
son of  ordinary  prudence  would  choose  to 
encounter  it,  he  cannot  voluntarily  place 
himself  in  Jeopardy  if  he  has  time  to  de- 
liberate, and  then  hold  his  master  answerable 
for  the  consequences.  *  •  • "  We  think 
the  Supreme  Court  of  Ohio  In  Van  Duzen 
Uas.  etc.,  Co.  v.  Schelles,  61  Ohio  St.  298,  55 
X.  E.  098,  announced  a  sound  rule  upon  the 
subject  of  the  assumption  of  known  risks 
by  the  servant  when  It  said:  "The  clear 
result  of  the  best  considered  cases  is  that 
where  an  order  Is  given  a  servant  by  bis 
superior  to  do  something  within  his  employ- 
ment apparently  dangerous,  and  he,  in  obey- 
ing, is  injured  from  the  culpable  fault  of 


the  master,  he  may  recover,  unless  obedience 
to  the  order  involved  such  obvloas  danger 
that  no  man  of  ordinary  prudence  would 
have  obeyed  it."  We  shall  not  attempt  to 
cite  the  vast  number  of  authorities  support- 
ing the  foregoing  rules.  They  may  be  found 
collated  in  the  notes  and  authorities  above 
cited.  To  warrant  a  finding  that  a  servant 
assumed  the  risks  of  his  employment  he  need 
not  have  had  absolute  knowledge  of  the 
risks  if  they  were  such  that  an  ordinarily 
prudent  man  under  the  circumstances  could 
by  reasonable  diligence  have  discovered  them. 
28  Cyc.  1203,  and  cases  cited.  A  servant,  al- 
though under  age,  assumes  all  patent  and 
obvious  risks  of  his  employment  if  he  has 
sufficient  intelligence  to  understand  and  ap- 
preciate them  (26  Cyc.  1220  [E]),  except  where 
the  child  is  so  young  as  to  be  incapable  of 
exercising  Judgment  or  discretion.  The  rule 
of  contributory  negligence  applies  where 
the  person  is  an  infant  the  same  as  where 
he  is  an  adult.  2»  Oyc.  535  (2)  (11).  No 
arbitrary  age  has  been  fixed  at  which  a 
child  Is  required  to  exercise  the  care  de- 
manded of  an  adult.  In  a  few  states  it  is 
held  that  this  question  is  not  'one  of  fact 
for  the  Jury,  but  of  law  for  the  court  (Tucker 
V.  N.  T.  Cent  &  H.  R.  R.  Ca,  124  N.  Y. 
308,  26  N.  B.  016,  21  Am.  St  Rep.  670; 
Nagle  V.  Alleghaney  R.  R.  Co.,  88  Pa.  35,  82 
Am.  Rep.  413),  and  that  an  Infant  over  the 
age  of  12  years  will  be  presumed  to  be  sul 
Juris,  and  chargeable  with  the  same  degree 
of  care  and  caution  as  an  adult  in  the  ab- 
sence of  proof  of  mental  Incapacity.  29  Cyc. 
540,  and  cases  cited.  Such  doctrine  is  re- 
pudiated, however,  by  most  courts  which 
hold  that,  while  a  child  of  12  years  or  over 
may  be  guilty  of  contributory  negligence,  it 
cannot  be  said  as  a  matter  of  law  that  he 
should  be  required  to  exercise  the  same  de- 
gree of  prudence  and  Judgment  as  an  adult, 
and  In  every  case  the  question  of  the  intel- 
ligence of  the  child  and  the  measure  of  his 
capacity  should  be  left  to  the  determination 
of  the  Jury.  29  Cyc  640.  As  said  by  the 
Supreme  Court  of  Wisconsin  in  the  recent 
case  of  Upthegrove  v.  Jones,  etc.,  Coal  <3o., 
118  Wis.  673,  90  N.  W.  385 :  "The  true  test 
as  to  whether  a  minor  has  assumed  the  ordi- 
nary risks  of  his  employment,  or  is  guilty 
of  contributory  negligence,  is  not  whether  he, 
in  fact,  knew  and  comprehended  tbe  danger, 
but  whether,  under  the  circumstances,  he 
ought  to  have  known  and  comprehended  such 
danger.  •  •  •  AVhere  it  appears  from  the 
undisputed  evidence  that  the  defect  or  dan- 
ger is  open  and  obvious,  and  such  as,  under 
the  circumstances,  ought  to  have  been  known 
and  comprehended  by  the  plaintiff,  then  he 
will  be  held  to  have  assumed  tbe  risk  as  a 
matter  of  law.  Upon  this  question,  see,  also, 
the  recent  case  of  Dubiver  v.  City  Ry.  Co.. 
44  Or.  >  227,  74  Pac  915,  76  Pac.  693,  which 
was  a  case  of  an  injury  to  a  minor,  and 
wherein  it  was  held  that,  the  evidence  being 
conflicting,  it  cannot  be  said  as  a  matter  of 


Digitized  by 


L-oogle 


N.D.) 


UMSTED  V.  COLGATE  FARMERS'  ELEVATOR  CO. 


39S 


law  that  the  minor  must  be  charged  with 
that  Judgement  and  prudence  usually  charac- 
teristic of  adults,  and  the  question  of  the 
minor's  contributory  negligence  was  held 
properly  submitted  to  the  Jury.  See,  also, 
Twist  V.  Railroad  Co.,  39  Minn.  164,  39  N. 
\V.  402,  12  Am.  St  Hep.  626;  Railroad  ▼. 
Pettigrew,  82  III.  App.  33;  Verdelll  v.  Gray's 
Harbor,  etc.,  Co.,  115  Cal.  517,  47  Pac.  364, 
778;  American  Malting  Co.  v.  liellrelt,  101 
IIL  App.  320;  Thompson  v.  Edward  P.  Al- 
lis  Co.,  89  Wis.  523,  62  N.  W.  627;  Bowden 
V.  Co.,  185  Mass.  549,  70  N.  B.  1016;  I^ynch- 
bnrg  Cotton  Mills  v.  Stanley,  102  Va.  590, 
46  S.  E.  908;  Canton  Cotton  Mills  v.  Ed- 
wards, 120  Ga.  447,  47  S.  E.  937;  Tenn.  Coal, 
etc.,  Co.  V.  Jarrett,  111  Tenn.  505,  b2  S.  W. 
224;  Williams  v.  Belmont  Coal  &  Colce  Co., 
r>5  W.  Va.  84,  46  S.  E.  802;  Langlols  v.  Dunn 
Worsted  Mills,  25  R.  I.  645,  57  Atl.  910.  See, 
also,  Bailey  on  Personal  Injuries,  i  2766, 
and  Thompson  on  Negligence,  978.  Whether 
the  defendant  through  its  rice  principal, 
Borneman,  was  negligent  in  installing  such 
car  puller  and  in  directing  the  plaintiff  to 
operate  the  same  without  suitable  warning 
of  the  risks  and  dangers  connected  with  its 
operation,  and  whether  the  plalntilf  Icnew  or 
ought  to  have  known  and  appreciated  the 
danger  In  connection  therewith  and  assumed 
the  risk,  and  whether  he  was  guilty  of  con- 
tributory negligence,  are  questions  of  fact 
proper  for  the  Jury  to  determine.  In  ad- 
dition to  the  foregoing  authorities,  see,  also, 
the  recent  cases  of  Kerker  y.  Bettendorf 
Metal  Wheel  Co.  (Iowa)  118  N.  W.  306,  and 
Johnson  t.  Desmond  Chemical  Co.  (Mich.) 
121  N.  W.  269. 

After  a  careful  examination  of  the  forego- 
ing authorities  and  many  others  which  we 
deem  it  unnecessary  to  cite,  we  entertain  no 
doubt  that  the  questions  of  plaintiff's  con- 
trlbntoiy  negligence  and  assumption  of  the 
risks  were  under  the  facts  disclosed  by  the 
record  for  the  Jury  under  proper  Instructions 
by  the  court  It  was  therefore  not  error  to 
deny  defendant's  motions  for  a  directed  ver- 
dict and  for  Judgment  notwithstanding  the 
verdict  This  disposes  of  appellant's  as- 
signments of  error  numbered  1,  2,  4,  and  10. 

The  remaining  assignments  which  it  is  nec- 
essary to  consider  will  be  disposed  of  to- 
gether. They  are  assignments  3,  5,  6,  7,  and 
8.  These  assignments  challenge  the  correct- 
ness of  the  trial  court's  rulings  in  taking 
from  the  Jury,  on  plaintiff's  motion,  all  ques- 
tions except  the  extent  of  plaintifTs  inju- 
ries, and  in  disposing  of  the  case  as  a  court 
case  by  making  findings  of  fact  and  conclu- 
sions of  law  ui>on  all  the  issues  involved. 
At  the  conclusion  of  all  the  testimony,  and 
sifter  the  court  had  denied  defendant's  mo- 
tion for  a  directed  verdict,  the  court  on  mo- 
tion of  plaintifTs  counsel  instructed  the  Jury 
that  the  only  question  for  them  to  consider 
was  the  question  of  the  extent  of  the  injury 
and  the,  amount  of  damage.  Dpfendant's 
counsel  took   an  exception   to  such  ruling. 


and  urge  the  same  as  prejudicial  error.  The 
learned  trial  court  in  granting  such  motion 
evidently  proceeded  upon  the  theory  that  by 
making  said  motions  the  parties  thereby 
waived  the  Jiury  as  to  all  questions  except 
the  one  as  to  the  plaintiff's  damage,  and  con- 
sented in  effect  to  a  determination  of  the  oth- 
er Issues  by  the  court  In  this  we  think  the 
court  committed  error  prejudicial  to  the  de- 
fendant. The  latter  neither  expressly  nor 
impliedly  waived  its  constitutional  right  to 
a  Jury  trial  upon  all  the  Issues  in  the  case. 
The  lower  court  no  doubt  considered  as  ap- 
plicable the  settled  rale  In  this  state  that 
where  both  parties  move  for  a  directed  ver- 
dict at  the  close  of  the  testimony,  and  the 
party  whose  motion  is  denied  fails  thereafter 
to  specially  request  that  certain  questions  be 
submitted  to  the  Jury,  he  will  be  deemed  to 
have  waived  a  Jury  trial,  and-  to  have  con- 
sented to  a  decision  of  all  questions  by  the 
court.  While  it  is  not  entirely  clear  to  our 
minds  that  such  rule  Is  inapplicable  under 
the  facts  here  presented,  we  are  convinced 
that  its  enforcement  would  work  a  manifest 
hardship  to  appellant,  and  we  are  not  dis- 
posed to  extend  the  rule  to  make  it  apply 
to  cases  not  strictly  and  clearly  within  the 
prior  decisions  of  this  court  The  rule  is 
based  upon  the  theory  that  by  moving  for 
a  directed  verdict,  the  attitude  of  the  party 
thus  moving  Is  that  there  is  no  issue  of  fact 
to  be  submitted  to  the  Jury,  and  that  the 
court  should  dispose  of  the  case  as  a  matter 
of  law,  and  by  such  motion  he  is  deemed 
to  have  impliedly  consented  to  a  disposition 
of  the  case  without  the  aid  of  a  Jury,  un- 
less, after  an  adverse  ruling  upon  his  mo- 
tion, he  requests  that  certain  questions  be 
submitted  to  the  Jury.  Failure  to  make  such 
request  is  construed  as  an  election  to  stand 
upon  his  motion,  and  hence  is  an  implied 
waiver  of  a  Jury  trial  and  a  consent  to  the 
submission  of  all  questions  to  the  court  for 
decision,  and  If,  in  disposing  of  the  case,  it 
becomes  necessary  for  the  court  to  determine 
issues  of  fact,  the  moving  party  or  parties 
will  not  thereafter  be  permitted  to  urge  that 
such  issues  should  have  been  submitted  to 
the  Jury.  The  case  at  bar  is  not  strictly 
within  such  rule.  The  record  tends  to  refute 
such  Implied  consent  Counsel  for  defendant 
resisted  plaintiff's  request  for  an  instructiou 
restricting  the  issues  to  t>e  submitted  to  the 
Jury  and  excepted  to  the  giving  of  such  in- 
stnicticm.  This  rebuts  any  presumption  of 
an  implied  waiver  of  the  right  to  have  all  Is- 
sues submitted  to  the  Jury.  Furthermore, 
the  learned  trial  court  incorporated  in  the 
record  a  statement  to  the  effect  that  defend- 
ant's counsel  did  not  intend  to  waive  the  right 
to  have  the  Jury  pass  upon  the  questions  of 
fact  nor  did  they  intend  to  waive  their  ob- 
jection and  exception  to  such  instruction. 
The  case  at  bar  in  this  respect  widely  differs 
from  the  case  of  Bank  v.  Town  of  Norton,  12 
N.  D.  497,  97  N.  W.  800.    In  that  case,  as  stat- 


Digitized  by  VjOOQ  l€ 


396 


122  KOBTHWESTERN  REPORTER. 


(X.D. 


ed  la  Hie  opinion,  "the  Jury  was  dlsdiarged 
because  each  party  consented  that  the  case  be 
decided  by  the  court  Both  parties  made  mo- 
tions for  a  directed  verdict,  and  thereafter 
each  stated  that  he  desired  to  stand  upon  his 
motion,  which  meant  no  more  or  less  than  that 
the  case  was  by  both  parties  deemed  one  for 
the  court  without  a  Jury.  That  such  was 
meant  is  emphasized  by  the  fact  that  neither 
party  objected  to  the  discharge  of  the  |nry 
or  excepted  thereto,  nor  asked  that  the  Jury 
be  allowed  to  pass  upon  all  the  evidence  or 
upon  any  particular  fact  That  such  was  the 
attorneys'  and  the  court's  understanding  at 
the  time  Is  borne  out  by  the  recitals  In  the 
order  for  Judgment,  as  follows:  'Whereupon 
the  defendant  and  the  plaintiff  •  *  • 
made  Independent  motions  to  the  court  for 
a  directed  verdict  In  favor  of  their  respective 
parties,  •  *  •  and,  both  parties  electing 
and  stipulating  In  open  court  to  stand  upon 
the  record,  •  •  •  the  court  thereupon 
dismissed  and  discharged  the  Jury  and  took 
complete  control  of  the  case.'  This  recital 
shows  that  the  trial  court  understood  that 
the  case  was  by  consent  of  the  parties  sub- 
mitted to  blm  for  decision  on  questions  of 
fact  and  questions  of  law,  and  bis  findings  of 
fact  and  conclusions  of  law  show  that  the 
case  was  tried  by  blm  as  a  court  case. 
Nothing  In  appellant's  conduct  or  any  objec- 
tions or  motions  during  the  trial  or  after  the 
trial  when  copies  of  the  findings  were  served 
on  him  indicated  anything  difTerent  than  that 
be  consented  that  the  case  be  tried  as  a  court 
case."  This  precise  question  has  arisen  In 
but  a  few  cases.  Counsel  for  respondent  re- 
lies upon  the  case  of  Galveston,  etc.,  R.  R. 
Co.  V.  Templeton,  87  Tex.  42,  26  8.  W.  1066, 
but  In  that  case  defendant,  at  the  close  of 
plaintiff's  case,  demurred  to  plaintiffs  evi- 
dence, and,  the  plaintiff  having  Joined  in  such 
demurrer.  It  was  held  that  the  question  of 
plalntUTs  right  to  recover  was  withdrawn 
from  the  Jury.  In  that  case,  however,  no 
testimony  was  introduced  in  defendant's  be- 
half, and  it  does  not  appear  that  plaintiff 
made  a  motion,  as  In  the  case  at  bar,  which 
was  granted,  restricting  the  issues  for  sub- 
mission to  the  Jury,  or  that,  if  such  motion 
was  made  and  granted,  defendant  saved  an 
exception  to  such  ruling.  The  question  also 
arose  in  the  Court  of  Appeals  of  New  York, 
and  in  disposing  of  it  the  court  said:  "Up- 
on the  close  of  the  evidence  and  after  a  mo- 
tion for  a  nonsuit  had  been  denied,  the  Judge 
decided  that  there  was  no  question  for  the 
Jury  but  the  question  of  damages,  to  which 
there  was  an  exception,  it  is  questionable 
whether  this  exception  is  available  to  the 
defendants  in  tills  court.  After  the  defend- 
ants had  asked  the  court  to  determine  the 
questions  as  matters  of  law  in  his  favor  on 
a  motion  for  a  nonsuit,  and  they  afterwards 
desired  audi  qnestlons  to  be  submitted  to  the 


Jury  as  questions  of  fact.  It  was  their  duty 
to  have  specified  the  questions  which  they 
desired  to  have  submitted.  O'Neill  v.  James, 
43  N.  Y.  84-93;  Wlnchell  v.  Hicks,  18  N. 
Y.  658.  The  court  might  have  assumed  that 
the  defendants  rested  upon  their  legal  propo- 
sitions and  thus  have  been  misled.  It  would 
be  perhaps  rather  rigorous  to  enforce  this 
rule  in  this  particular  case,  and  we  have  con- 
cluded to  waive  Its  application."  MuIIer  v. 
McKesson,  73  N.  Y.  195,  29  Am.  Rep.  123. 
In  Calder  v.  Crowley,  74  Wis.  157,  42  N.  W. 
266,  a  verdict  was  directed  for  the  plaintiff, 
and  defendant  on  the  appeal  contended  that 
under  the  most  favorable  view  for  the  plain- 
tiff that  could  be  taken  of  the  testimony  it 
was  a  question  for  the  Jury,  saying:  **I 
claim  a  verdict'  should  In  fact  be  directed 
upon  that  point  In  favor  of  the  defendant" 
The  court  said:  "But  be  did  not  submit  any 
motion  to  that  effect.  Had  he  done  so,  how- 
ever, we  should  be  slow  to  hold  that  he  there- 
by waived  his  right  to  have  the  question 
passed  upon  by  the  Jury."  In  Clancey  v. 
Rels,  6  Wash.  371,  Si  Pac  971,  the  defend- 
ants at  the  close  of  plaintiff's  testimony 
moved  for  a  nonsuit,  and,  such  motion  t>eing 
denied,  they  rested  their  rights  upon  an  ex- 
ception to  such  ruling  and  refused  to  put  In 
any  proof,  and  the  court  very  properly  held 
that  the  testimony  presented  on  the  plain- 
tiff's part  being  sufficient  to  establish  all  the 
allegations  of  the  complaint  put  in  issue  by 
the  answer,  the  trial  court  had  a  right  to  as- 
sume such  facts  to  be  proven  for  the  pur- 
poses of  that  case,  unless  the  defendants  In- 
troduced some  proof  tending  to  disprove  the 
prima  facie  case  thus  made  by  the  plaintiff, 
and  it  held  that  an  instruction  to  the  Jury 
to  return  a  verdict  for  the  plaintiff  was  not 
erroneous.  See,  also,  Bartelott  v.  Bank,  119 
111.  259,  9  N.  R  898. 

The  prior  decisions  of  this  court /elating 
to  this  question  of  practice  have,  we*  believe, 
extended  such  rule  to  its  uttermost  limit, 
and  Instead  of  extending  It  still  further,  as 
we  are  asked  to  do  in  this  case,  we  would 
be  rather  disposed,  on  the  contrary,  to  modi- 
fy such  rule  as  thus  established  by  restrict- 
ing Its  application  to  cases  only  coming  with- 
in the  evident  spirit  and  intent  thereof. 

Judgment  reversed,  and  new  trial  ordered. 
All  concur. 

MORGAN,  C.  J.,  not  participating. 


TAYLOR-BALDWIN  CO.  v.  NORTHWEST- 
ERN FIRE  &  MARINE  INS.  00. 

(Supreme  Court  of  North  Dakota.    July  1, 
1909.) 

IRSUBANCE   (S   S95*)  — Policy  — Waivbb  o» 
Conditions. 

Plaintiff,  Taylop-Baldwln  Companv,  a  cor- 
poration,  was    the   owner  of   a   buildliig  and 


*For  other  cue*  lea  uune  topic  and  lectlon  NUMBER  in  Deo.  *  Am.  Digs.  1907  to  date,  A  Reporter  Indexes 


Digitized  by 


L-oogle 


N.  D.)  TAYLOE-BALDWIN  CX).  v.  NORTHWESTERN  FIRE  &  MARINE  INS.  OO.      397 


8to<^  of  Koods  located  in  what  is  called  tbe  old 
town  of  G.,  which  it  insured  In  defendant  com- 
pany. Afterwards,  and  contrary  to  the  provi- 
sions of  the  policy,  it  removed  uie  property  in- 
sured to  the  new  town  of  6.,  fonr  miles  dis- 
tant, obtained  additional  insurance,  and  install- 
ed a  gasoline  lighting  plant.  After  the  removal 
to  the  new  location,  ue  plaintiff  delivered  the 
policy  to  one  Robinson,  who  was  the  legal  so- 
liciting agent  of  defendant,  and  requested  nim  to 
have  the  insurance  company  make  an  indorse- 
ment on  the  i)oIicy  to  cover  the  property  at  its 
new  location.  Through  a  misunaerstanding, 
Robinson  sent  the  policy  to  defendant  at  its 
home  office,  with  the  written  request  that  It 
cancel  the  same,  which  the  company  did,  and 
retained  the  policy,  but  did  not  notify  the  plain- 
tiff. The  building  and  stock  of  merchandise 
were  afterwards  destroyed  by  fire  caused  by  the 
gasoline  lighting  plant.  The  plaintiff  made 
proofs  of  loss  and  sent  them  to  defendant.  The 
proofs  showed  that  the  property  was  destroyed 
at  its  new  location,  the  amount  of  additional 
insurance  obtained,  and  that  the  fire  was  caused 
by  a  defective  gasoline  lighting  plant.  The  com- 
pany returned  the  proofs  with  a  letter  denying 
any  liability  on  the  ground  that  the  policy  had 
been  canceled  before  the  fire. 

Held,  that  tbe  rejection  of  the  claim  on  tbe 
ground  stated  in  defendant's  letter  did  not  con- 
stitute a  waiver  of  the  conditions  of  the  policy. 

[Eid.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  S  1036;  Dec.  Dig.  f  395.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Conrt,  Grand  Forks 
County;  Chas.  F.  Templeton,  Judge. 

Action  by  tlie  Taylor-Baldwin  Company 
against  the  Northwestern  Fire  &  Marine  In- 
surance Company,  Judgment  for  plaintiff, 
and  defendant  appeals.    Reversed. 

Ball,  Watson,  Young  &  Hardy,  for  appel< 
lant.    W.  S.  Stambaugb,  for  respondent 

CARMODY,  J.  This  action  is  based  upon 
a  fire  Insurance  policy.  The  case  was  tried 
by  the  court  without  a  Jury.  The  facts  are 
substantially  as  follows:  The  plaintiff  is  a 
corporation  and  as  such  was  engaged  In  the 
mercantile  business  at  the  old  town  of  Gar- 
rison, in  McLean  county,  until  September  1, 
1905,  and  thereafter  at  the  new  town  of  Gar- 
rison, four  miles  distant  therefrom.  The  de- 
fendant Is  a  corporation  engaged  in  flre  In- 
surance business.  In  April,  1005,  the  plain- 
tiff owned  a  frame  store  buUdlng  and  a  stock 
of  merchandise  contained  therein,  all  situated 
In  the  old  town  of  Garrison.  On  April  17, 
19(6,  the  defendant  Issued  its  policy  of  in- 
surance on  said  property  for  one  year  for 
$2,300,  to  wit,  $2,000  on  the  merchandise  and 
$300  on  the  building.  Tbe  Insurance  was  so- 
licited by  D.  P.  Robinson,  who  was  defend- 
ant's local  soliciting  agent  at  Coal  Harbor. 
In  Augrust  and  September,  1905,  the  store 
bnildlng  and  merchandise  were  moved  to  a 
point  four  miles  distant,  to  what  is  called 
the  "new  town  of  Garrison,"  and  the  store 
building  and  stock  were  located  at  that  point 
npon  lota  11  and  12,  In  block  11;  the  mer- 
chandise being  In  part  In  the  old  store  build- 
ing and  In  part  In  a  new  store  building  ad- 
jacent thereto.    On  November  14,  1905,  after 


its  removal  to  the  new  town  of  Garrison,  tbe 
store  building  and  stock  of  merchandise  were 
destroyed  by  flre  caused  by  a  defective  light- 
ing plant  which  plaintiff  had  Installed  upon 
the  premises,  and  which  was  used  for  light- 
ing the  building.  Tbe  defendant's  policy  of 
Insurance  described  the  location  of  the  prop- 
erty Insured  at  the  old  town  of  Garrison  and 
insured  the  plaintiff  on  said  property  "while 
located  and  contained  as  described  herein  and 
not  elsewhere."  The  property  In  fact  was  de- 
stroyed at  the  new  town  of  Garrison,  four 
miles  distant  The  policy  contained  a  pro- 
vision which  rendered  It  void  In  case  the  de- 
fendant took  out  additional  insurance,  or  If 
Illuminating  gas  or  vapor  was  generated  in 
the  buUdlng  or  adjacent  thereto  for  use  there- 
in. Gasoline  was  generated  for  use  In  the 
building  at  Its  new  location  and  was  the 
cause  of  Its  destruction.  Tbe  plaintiff  also 
took  out  additional  Insurance.  No  permit 
therefor  was  obtained,  and  no  permission 
was  obtained  for  the  use  of  gasoline.  On  Oc- 
tober 3,  1905,  the  plaintiff  delivered  the  poli- 
cy to  Robinson  for  transmittal  to  the  defend- 
ant at  its  home  office.  It  was  its  purpose  to 
have  Robinson  request  an  Indorsement  to 
cover  the  property  at  Its  new  location;  buf 
Robinson  understood  that  the  plaintiff  desir- 
ed to  have  the  policy  canceled,  and  that  it  In- 
tended to  take  out  other  Insurance  at  a  later 
time.  On  October  15,  1905,  Robinson  sent  the 
policy  to  tbe  defendant  at  its  home  ofQce, 
with  a  written  request  that  tbe  defendant 
cancel  the  same.  On  October  18,  1905,  the 
defendant  complied  with  such  request  and 
canceled  the  policy  and  entered  a  record  of 
its  cancellation  upon  its  books,  and  made  out 
a  statement  of  the  return  premium,  and  has 
since  said  date  had  such  canceled  policy  In 
its  possession.  Thereafter,  and  subsequent  to 
the  flre.  It  sent  to  Robinson  the  amount  of 
the  return  premium,  and  the  same  was  ten- 
dered to  plaintiff.  On  January  9,  1906,  the 
plaintiff  sent  a  written  proof  of  loss  to  the 
defendant  Said  proof  of  loss  contained  a 
statement  that  at  the  time  of  the  flre  there 
was  additional  Insurance  upon  said  property 
In  the  Home  Insurance  Ciompany  of  New 
York,  In  the  sum  of  $1,500  on  the  building, 
and  in  tbe  sum  of  $3,600  on  the  stock  of  mer- 
chandise. That  in  said  proof  of  loss  was  con- 
tained the  following  statement:  "Building 
and  stock  moved  to  lots  11  and  12,  block  11, 
Garrison,  McLean  county,  N.  D.,  and  agent  of 
company  notified  on  or  about  October  3, 1903." 
And  also  the  following  In  reference  to  the 
flre:  "Fire  occurred  on  the  14th  day  of  No- 
vember, 1905,  about  the  hour  of  7  o'clock  p. 
m.  Cause  of  fire  defective  gasoline  lighting 
plant"  Defendant  Immediately  returned 
said  proof  of  loss  with  a  letter  stating  that  It 
denied  "any  liability  under  the  policy,  as 
same  was  canceled  on  October  18,  1905,  and 
the  flre  occurred  on  November  14,  1903." 
The  plaintiff  did  not  request  Robinson  to  al- 


•For  other  cas«s  lee  earns  topic  and  i«ctIon  NUMBER  In  Dec.  &  Am.  Digs,  1907  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


398 


122  NORTHWESTERN  REPORTER. 


(N.D. 


ter  the  policy  so  as  to  cover  the  property  at 
its  new  location,  and  he  had  no  authority  to 
make  such  alteration.  No  change  In  the  pol- 
icy as  originally  issued  was  ever  made. 
From  the  foregoing  facts  the  court  conclud- 
ed as  matter  of  law  that  the  defendant  was 
liable  and  directed  the  entry  of  Judgment, 
from  which  this  appeal  was  taken. 

The  only  question  is:  Do  the  facts  herein 
stated  sustain  the  judgment?  Respondent 
contends  that  defendant,  by  returning  to 
plaintiff  its  proof  of  loss  stating  that  It  de- 
nied any  liability  under  the  policy,  as  the 
same  was  canceled  on  October  18,  1905,  and 
the  fire  occurred  on  November  14,  1905,  waiv- 
ed the  following  defenses:  "First,  that  the 
insured  property  was  removed  to  the  new 
town  of  Garrison,  a  distance  of  four  miles, 
and  no  permit  or  Indorsement  upon  said  pol- 
icy was  obtained  from  the  defendant  provid- 
ing that  said  policy  should  cover  the  risk  in 
the  new  location.  Second,  that  the  fire  which 
destroyed  the  property  was  caused  by  a  de- 
fective gasoline  lighting  plant,  which  plaintiff 
had  Installed  upon  the  premises  upon  which 
the  store  building  was  situated,  and  which 
was  used  by  the  plaintiff  in  lighting  said 
building ;  that  the  use  of  such  lighting  plant 
was  prohibited  by  the  provisions  of  the  pol- 
icy, and  no  permission  for^this  use  was  ob- 
tained from  the  defendant  or  indorsed  on  the 
policy  sued  on.  Third,  that  the  plaintiff  had 
obtained  other  Insurance  upon  the  property, 
without  notice  to  the  defendant  and  without 
permission  so  to  do  from  defendant  indorsed 
upon  the  policy."  And  the  only  defense 
available  to  defendant  was  that  the  policy 
had  been  canceled  before  the  fire,  and  says: 
"It  may  be  conceded  that,  unless  defendant 
has  waived  and  is  estopped  to  plead  the  de- 
fenses, each  of  them  Is  a  complete  defense  to 
an  action  on  the  policy."  And  contends  that 
If  an  Insurance  company,  with  knowledge 
of  all  the  circumstances  attending  a  loss,  un- 
dertakes to  give  specific  reasons  for  denying 
liability,  this  will  operate  as  a  waiver  of, 
or  estop  the  company  to  assert,  other  causes 
of  complaint,  and  the  company  cannot,  when 
sued  on  a  policy,  set  up  any  additional 
grounds  of  defense  than  those  specified. 
Thus,  if  a  company  sets  up  one  ground  of 
forfeiture  as  a  defense  to  an  action  on  a 
policy,  and  denies  liability  on  this  ground 
alone.  It  thereby  waives  all  other  known 
grounds  of  forfeiture  or  breaches  of  the  con- 
ditions of  the  policy,  and  cites  the  following 
cases  to  sustain  its  contention:  Brink  v.  In- 
surance Co.,  80  N.  Y.  108 ;  Titus  v.  Insurance 
Co.,  81  N.  Y.  410;  Keiman  v.  Insurance  Co., 
1.50  N.  Y.  190,  44  N.  E.  698;  Smith  v.  Insur- 
ance Co..  107  Mich.  270,  65  N.  W.  286,  80  L. 
R.  A.  368;  Douvllle  v.  Insurance  Co.,  118 
Mich.  158,  71  N.  W.  517 ;  Western  &  Atlantic 
Pipe  Lines  v.  Insurance  Co.,  145  Pa.  346,  22 
Atl.  6^,  27  Am.  St.  Rep.  703;  Geo.  Home 
Ins.  Co.  V.  Allen,  128  Ala.  451,  SO  South.  537 ; 
Moore  T.   Insurance  Co.,  38  Wash.  31,   80 


Pac.  171;  McCormlck  v.  Insurance  Co.,  163 
Pa.  184,  29  Atl.  747;  Johnson  v.  Insurance 
Co.,  1  N.  D.  167,  45  N.  W.  799. 

We  think  most  of  these  cases  are  distin- 
guishable from  the  case  at  bar.  In  Brink  v. 
Insurance  Co.,  supra,  defendant  received  the 
proofs  of  loss  without  objection,  retained 
them,  examined  the  Insured  in  respect  to 
them,  and  refused  to  pay  the  loss  on  the 
ground  of  fraud,  and  so  declared  to  the  in- 
sured. Thereupon  an  action  was  commenced. 
At  the  trial  the  company  failed  to  prove  the 
charge  upon  which  it  relied,  and  then  sought 
to  raise  the  question  of  the  time  of  filing  the 
proofs  of  loss.  The  court  held  it  was  es- 
topped from  so  doing,  and  used  the  following 
language:  "They  may  refuse  to  pay  without 
specifying  any  ground,  and  Insist  upon  any 
available  ground;  but  If  they  plant  them- 
selves upon  a  specified  defense,  and  so  notify 
the  assured,  they  should  not  be  permitted 
to  retract  after  the  latter  has  acted  upon 
their  position  as  announced,  and  Incurred  ex- 
pense In  consequence  of  It  If  a  company  In- 
tends to  avail  itself  of  the  technical  objec- 
tion that  the  proofs  are  not  filed  In  time, 
common  fairness  requires  that  it  should  re- 
fuse to  receive  them  on  that  ground,  or  at 
least  promptly  notify  the  assured  of  their 
determination ;  otherwise  the  objection  should 
be  regarded  as  waived." 

In  Titus  V.  Insurance  Co.,  supra,  there  was 
a  mortgage  on  the  premises  payable  to  plain- 
tiff, who,  without  the  knowledge  of  the  in- 
sured, procured  additional  Insurance.  There 
was  also*a  small  judgment  against  the  in- 
sured which  was  not  disclosed  in  the  appli- 
cation. The  policy  contained  a  provision  that 
it  should  t>e  void  if  foreclosure  proceedings 
should  l>e  commenced  against  the  insured 
property.  The  policy  contained  provisions 
for  its  renewal.  After  the  policy  was  issued, 
and  before  Its  renewal,  the  Judgment  was 
paid.  The  policy  contained  a  provision  that 
the  insured  should,  if  required,  submit  to  an 
examination  or  examinations  under  oath  by 
any  person  appointed  by  the  company,  and 
subscribe  to  such  examinations  when  re- 
duced to  writing.  The  mortgagee  commenced 
foreclosure  proceedings.  The  court  used  the 
following  language:  "After  the  fire,  and  aft- 
er the  defendant  had  notice  of  the  proceed- 
ings, it  required  the  insured  to  appear  before 
a  person  appointed  by  it  for  that  purpose,  to 
be  examined  under  the  clause  In  the  policy 
hereinbefore  mentioned,  and  he  was  there 
subjected  to  a  rigorous  Inquisitorial  examina- 
tion. It  had  the  right  to  make  such  examina- 
tion only  by  virtue  of  the  policy.  When  it 
required  him  to  be  examined,  It  exercised 
a  right  given  to  It  by  the  policy.  It  then  rec- 
ognized the  validity  of  the  policy  and  sub- 
jected the  Insured  to  trouble  and  expense, 
after  it  knew  of  the  forfeiture  now  alleged, 
and  it  cannot  now  therefore  assert  Its  Inva- 
lidity on  account  of  such  forfeiture.  •  •  • 
But  it  may  be  asserted  broadly  that  if,  in 


Digitized  by  LjOOQ  IC 


N.  D.)  TAYLOR-BALDWIN  CO.  v.  NORTHWESTERN  FIRE  &  MARINE  INS.  CO.      399 


any  negotiations  or  transactions  with  the  in- 
sured, after  knowledge  of  the  forfeiture,  It 
recognizes  tbe  continued  validity  of  ttie  pol- 
icy, or  does  acts  based  thereon,  or  requires 
the  Insured  by  virtue  thereof  to  do  some  act 
or  Incur  some  trouble  or  eipense,  the  for- 
feiture is  as  matter  of  law  waived." 

In  Keiman  v.  Insurance  Co.,  supra,  the 
court  said:  "An  election  by  the  company  to 
insist  upon  the  forfeiture  of  a  fire  insurance 
policy  for  a  breach  of  its  conditions  must 
be  asserted  within  a  reasonable  time  after 
acquiring  knowledge  of  the  breach."  In  this 
case  there  was  a  chattel  mortgage  on  a  por- 
tion of  the  property.  After  the  fire,  with  full 
knowledge  of  the  chattel  mortgage,  tbe  insur- 
er had  an  appraisement  made  which  the  In- 
sured refused  to  accept  and  brought  an  ac- 
•Jon  on  the  policy.  The  court  held  the  insur- 
er could  not  set  up  the  chattel  mortgage  as 
a  breach  of  tbe  contract.  The  negotiations 
covered  considerable  time.  The  defendant 
iiade  an  appraisement  of  the  property  de- 
stroyed, made  proofs  of  loss,  and  asked  plain- 
tiff to  swear  to  them,  which  he  refused  to 
do,  and  he  himself  made  proofs  of  loss  which 
he  delivered  to  tbe  defendant,  who  retained 
them  several  months,  made  offers  of  settle- 
ment to  the  plaintiff,  and  raised  no  question 
whatever  as  to  the  chattel  mortgage.  The 
court  said:  "If  the  words  and  acts  of  the 
Insurer  reasonably  Justify  the  conclusion  that 
with  full  knowledge  of  all  the  facts  it  Intend- 
ed to  'abandon  or  not  to  Insist  upon  the 
particular  defense  afterward  relied  upon,' 
a  verdict  or  finding  to  the  effect  establishes  a 
waiver,  which,  if  it  once  exists,  can  never 
be  revoked.  During  all  the  negotiations, 
there  was  neither  act  done  nor  word  spoken 
by  any  officer  or  agent  of  the  company  In- 
dicating an  intent  to  rely  upon  the  breach 
of  warranty,  or  discriminating  in  any  way 
against  the  property  to  which  the  warranty 
related.  The  policy  was  treated  as  valid  in 
every  respect,  and  the  only  questions  raised 
related  to  values.  The  preparation  by  the 
defendant  of  proofs  of  loss,  based  upon  tbe 
award  and  including  the  mortgaged  property, 
showed  an  intention  to  waive  the  forfeiture 
and  to  rely  upon  the  appraisal.  There  was 
no  condition  suggested,  nor  right  reserved, 
nor  even  an  allusion  made  to  tbe  possibility 
that  the  company  might  refuse  to  pay  any- 
thing on  account  of  the  property  in  the  mort- 
gage. It  did  not  deny  its  liability  to  pay 
for  that  property  until  after  all  negotiations 
bad  ceased,  and  this  action  was  about  to 
be  commenced.  The  officer  who  prepared  and 
tendered  the  proofs  of  loss  represented  the 
company,  and  what  he  Intended  at  the  time 
tbe  company  is  presumed  to  have  Intended. 
Unless  his  intention  was  to  pay  the  loss  on 
the  mortgaged  property  as  well  as  the  rest, 
why  did  be  Insert  it  in  the  proofs  of  loss? 
Why  did  he  ask  the  plaintiff  to  swear  to  a 
loss  upon  property  that  he  did  not  Intend 
to  pay  for?  Why  did  he  treat  one  kind  of 
property  the  same  as  another,  unless  he  in- 


tended to  waive  the  breach  of  warranty? 
The  rejection  of  the  proofs  of  loss  solely  for 
the  reason  that  they  were  not  based  upon  the 
award,  without  saying  anything  about  an 
intention  to  forfeit,  indicates  that  no  such 
Intention  existed." 

In  Smith  V.  Insurance  Co.,  supra,  the  policy 
provided  that  it  would  be  forfeited  if  me- 
chanics be  employed  in  building,  altering,  or 
repairing  the  within-described  premises  for 
more  than  15  days  at  any  one  time,  or  if 
there  be  kept,  used,  or  allowed  on  the  above- 
described  premises  benzine,  naphtha,  or 
other  explosives.  Painters  were  employed  to 
paint  the  building  and  used  gasoline  torches 
to  bum  off  the  old  paint  The  gasoline  used 
in:  these  torches  was  kept  in  a  five-gallon 
can  in  the  building.  After  the  fire  and 
proofs  of  loss  the  defendant  refused  to  pay 
on  account  of  the  storage  of  gasoline  in  the 
building.  On  the  trial  the  defendant  attempt- 
ed to  set  up  an  additional  defense  that  me- 
chanics were  employed  In  repairing  the  build- 
ing at  the  time  of  the  fire  in  violation  of  the 
conditions  of  the  policy.  The  court  held,  it 
was  estopped,  and  said:  "Common  painters 
are  not  'mechanics'  within  the  meaning  of 
such  word  in  a  policy  witich  provides  that 
tbe  policy  shall  be  void  if  'mechanics'  be  em- 
ployed ih  repairing  the  building  for  over  a 
certain  length  of  time  without  the  consent 
of  the  Insurer.  •  •  •  where  the  insurer, 
after  thoroughly  examining  the  loss,  and  be- 
ing aware  at  the  time  of  the  loss  that  paint- 
ers were  at  work  on  the  building,  denies  its 
liability  solely  on  the  ground  that  gasoline 
was  stored  in  the  building  without  its  con- 
sent, it  cannot  set  up  as  a  defense  that  the 
policy  was  avoided  by  permitting  painters 
to  work  on  the  building  without  its  consent. 
In  violation  of  the  condition  in  the  policy." 
The  court  further  held:  "The  storage  of 
gasoline  in  the  building  for  the  purposes 
aforesaid  was  not  a  violation  of  the  condi- 
tions of  the  policy."  Hence  It  was  not  nec- 
essary to  a  decision  of  the  case  to  hold  that 
the  company  waived  tbe  defense  that  me- 
chanics were  employed  on  the  building,  and 
it  is  at  most  only  a  dictum. 

In  Douvlile  V.  Insurance  Co.,  supra,  the 
defendant  pleaded  the  general  issue,  and  gave 
notice  that  plaintiff  was  not  the  owner  of  the 
property  described  in  the  Insurance  policy ; 
second,  that  said  policy  had  been  canceled; 
third,  that  the  t)Ollcy  of  insurance  contained 
a  statement  that  there  was  no  incumbrance 
upon  the  property,  when.  In  fact,  there  was 
an  Incumbrance  of  $500.  The  court  held 
that  the  policy  had  been  canceled  and  the 
defendant  was  not  liable,  but  further  said: 
"The  record  discloses  very  clearly  that,  when- 
ever anything  was  said  to  any  of  the  ofllcers 
of  the  company  about  settling  or  adjusting 
the  loss,  they  insisted  the  company  was  not 
liable,  and  assigned  as  a  reason  why  it  was 
not  liable  that  the  policy  had  been  canceled, 
and  were  estopped  from  asserting  any  other 
defense."    And  said:     "Generally,  a  refusal 


Digitized  by  VjOOQ  l€ 


4(10 


122  NORTHWESTERN  REPORTER. 


(X.  D. 


by  the  company  to  pay,  or  a  denial  of  Its 
liability,  before  any  preliminary  proofs  are 
made,  as  required  on  tbe  face  of  a  policy, 
whereby  the  Insured  is  induced  not  to  com- 
ply with  the  conditions  of  the  policy  in  that 
respect,  is  in  law  a  waiver  of  the  conditions 
of  the  policy  requiring  such  proofs  to  be 
made."  It  will  be  readily  seen  from  the 
foregoing  language  that  it  has  no  applica- 
tion to  the  case  at  bar. 

In  Western  &  Atlantic  Pipe  Lines  t.  In- 
surance Co.,  supra,  the  company  insured  oil 
in  an  Iron  tank  on  tbe  premises  of  the  plain- 
tiff which  was  removed  a  distance  of  300  or 
400  feet  by  a  flood.  The  insurer  resisted 
payment  on  the  ground  that  the  oil  was  not 
Insured  at  the  place  it  was  destroyed.  On 
the  trial  It  attempted  to  introduce  another 
defense  that  the  plaintiff  was  not  the  owner 
of  the  oil.  The  court  said:  "The  supplemen- 
tal defense,  afterwards  sprung  upon  the 
plaintiff,  that  It  was  not  the  owner  of  the 
oil,  fuight  well  be  disposed  of  by  saying  it 
came  too  late;  but  it  was  not  necessary  to 
decide  that  question,  the  Jury  having  found 
that  plaintiff  was  the  owner  of  the  oU." 

In  Georgia  Home  Ins.  Co.  t.  Allen,  supra, 
the  defendant  pleaded  a  so-called  "Iron-safe 
clause,"  requiring  the  assured  to  keep  a  set 
of  books  and  inventory  securely  locked  in 
a  fireproof  safe  at  night  and  at  times  when 
the  store  was  not  actually  opened  for  busi- 
ness. The  court  said:  "An  iron-safe  clause 
in  a  policy  of  Insurance,  requiring  the  as- 
sured tp  keep  a  set  of  books  and  inventory 
of  the  stock,  which  shall  be  kept  locked  in  an 
iron  safe  at  night  and  at  other  times  when 
the  store  Is  not  open  for  business,  Is  a  valid 
condition  and  binding  upon  the  assured,  the 
breach  of  which  will  avoid  the  policy  unless 
It  is  waived  by  the  Insurer."  And  further 
said:  "An  adjuster  of  an  Insurance  company, 
with  full  power  to  make  examinations.  In- 
vestigations, and  adjustments  of  a  loss,  has 
authority  to  waive  the  conditions  of  the  poli- 
cy ;  and  if  such  adjuster,  with  full  knowledge 
of  the  breach  of  the  conditions  of  the  policy 
of  the  insured,  enters  upon  the  Investigation 
and  adjustment  of  the  loss,  and  treats  the 
policy  as  valid  and  subsisting,  any  defense 
the  insurance  company  had  to  tbe  policy,  by 
reason  of  the  breach  of  the  conditions,  will 
be  deemed  to  have  been  waived." 

Moore  V.  Insurance  Co.,  supra,  was  an 
accident  policy.  The  company  refused  to 
recognize  the  claim  on  the  ground  that  the 
hisured  did  not  notify  It  of  the  Injury  within 
10  days,  as  provided  in  the  policy.  The 
company  resisted  payment,  and  nonsuit  was 
granted  on  the  ground  that  the  Insured  did 
not  furnish  proofs  of  his  Injury  within  the 
time  limited  after  giving  notice  to  the  com- 
pany that  he  had  received  an  Injury.  There 
was  evidence  introduced  at  the  trial  tending 
to  show  that  the -notice  was  furnished.  Let- 
ters written  by  the  company  were  Introduced 
denying  liability  solely  on  the  ground  that 
notice  was  not  given  of  the  accident    Held, 


defendant  was  estopped  from  urging  tbe 
defense  that  the  plaintiff  did  not  furnish 
proofs  of  his  injury  within  the  period  limited 
after  giving  notice  to  the  company  that  he 
had  received  an  injury.  While  this  case  sus- 
tains somewhat  the  contention  of  the  plain- 
tiff, we  think  It  Is  distinguishable  from  the 
case  at  bar,  as,  by  the  terms  of  the  accident 
policy,  proofs  of  injury  were  to  be  furnished 
after  the  insured  gave  notice  to  the  company 
of  his  injury.  He  claimed  to  have  given  such 
notice.  The  company  denied  having  received 
it  and  refused  payment  on  that  ground. 
Hence  giving  proofs  of  the  injury  when  the 
company  denied  receiving  any  notice  of  it 
would  have  availed  nothing. 

In  McCormIck  et  al.  v.  Insurance  Co., 
supra,  the  policy  provided  that  the  lumber . 
covered  by  the  Insurance  should  not  be  kept 
within  800  feet  of  a  mill.  After  the  fire 
defendant's  adjuster  visited  the  premises  and 
attempted  to  make  a  settlement  with  the  In- 
sured, stated  that  he  was  satisfied  that  the 
lumber  was  kept  300  feet  from  the  mill,  but 
suggested  that  there  was  little  if  any  lumber 
in  the  yard  at  the  time  the  fire  occurred. 
That  thereafter  defendant's  general  agent 
wrote  plaintiffs  saying  he  could  prove  that 
none  of  the  lumber  destroyed  was  plaintiffs'. 
That  plaintiffs,  in  answer,  wrote  that  de- 
fendant's adjuster  had  waived  formal  proofs 
of  loss,  and.  If  defendant  was  not  satisfied 
with  his  action,  to  say  so  now,  so  that  plain- 
tiffs might  put  themselves  In  proper  shape. 
And  that  tbe  general  agent  replied  that  he 
was  satisfied  plaintiffs  had  no  lumber  among 
that  burned  and  that  they  might  sue  at  once. 
Held,  a  waiver  of  the  space  clause  as  a  de- 
fense. Judge  Mitchell,  of  the  Pennsylvania 
court,  dissented  from  so  much  of  the  opinion 
as  implied  there  was  any  sufiiclent  evidence 
of  waiver. 

Johnson  v.  Insurance  Co.,  supra,  was  a 
hall  insurance  policy.  It  provided,  among 
other  things,  that  no  payment  would  be  made 
until  requisite  proofs,  duly  sworn  and  cer- 
tified to  by  the  assured  and  one  disinterest- 
ed party,  were  received  at  the  ofllce  of  the 
company.  The  plaintiff  sent  to  defendant 
by  registered  mail  a  statement  of  bis  losses, 
asked  to  have  tbe  loss  submitted  to  apprais- 
ers, as  provided  in  the  policy;  but  the  de- 
fendant neglected  to  do  so.  The  policy  was 
in  force  for  six  mouths.  Not  having  receiv- 
ed any  answer  to  his  letter  notifying  the 
company  of  his  loss,  he  caused  the  letter 
marked  "Exhibit  A"  to  be  written,  to  which 
the  letter  marked  "Exhibit  B"  is  an  answer. 
They  are,  respectively,  as  follows: 

Exhibit  A :  "Larimore,  Dakota,  Dec.  16, 1883. 
The  Dakota  Fire  &  Marine  Insurance  Co., 
Chamberlain— Gentlemen :  At  the  instance 
of  Mr.  W.  E.  Joluison,  I  write  you  in  refer- 
ence to  his  policy  No.  514  for  hail  insurance 
in  your  company.  Mr.  Johnson  has  complied 
with  the  conditions  Imposed  by  your  agent 
when  here,  and  sent  in  his  papers  quite  a 
long  time  ago.    He  also  saw  your  general 


Digitized  by 


Google 


K.  D.)  TATLOB-BALDWIN  CO.  t.  NORTHWESTERN  FIRE  &  MARINE  INS.  CO.     401 


manaser,  Mr.  English,  In  Orand  Ftorka,  about 
NoTember  10th  last,  who  promlBed  to  let  him 
hear  from  the  company  upon  hla  return.  No 
word  has  yet  been  received  by  Mr.  J.,  and 
the  time,  December  lat,  wherein  the  policy 
promised  final  settlement  for  any  loss  shall 
be  made,  has  passed.  Mr.  Johnson  Is  thus 
kept  in  Ignorance  of  your  Intentions,  and  Is 
without  a  word  of  any  kind  from  yoa  He 
desires  me  to  say,  if  settlement  for  his  loss 
is  not  made  before  January  1st  pros.,  he 
will  enter  suit  to  bring  about  the  same. 
Very  respectfully,  W.  N.  Roach." 

Exhibit  B:  "Cliamberlain,  Dakota,  Dec. 
22,  1885.  W.  N.  Roach,  Esq.,  Larlmore,  Da> 
kota— Dear  Sir:  Replying  to  yours  of  the 
16th  Inst  in  regard  to  loss  under  policy  514, 
Issued  to  W.  B.  Johnson,  we  beg  to  say  we 
are  In  possession  of  some  facts  In  regard  to 
this  insurance  which,  unexplained,  would 
lead  us  to  reject  the  loss,  and  resist  its  pay- 
ment in  court,  if  necessary,  though  this  posi- 
tion we  do  not  yet  take,  and  hope  we  shall 
not  be  compelled  to.  Will  gire  you  definite 
answer  as  soon  as,  in  due  course  of  mall, 
we  can  receive  answer  to  letter  already  writ- 
ten for  further  information  in  reference  to 
this  case.  We  do  not  ask  you  to  wait  on  us, 
bat  suggest  that,  upon  receipt  of  informa- 
tion above  referred  to.  If  our  attorney  ad- 
vises us  that  we  are  probably  liable,  or  even 
that  be  la  In  doubt  as  to  our  liability,  we 
shall  at  once  adjust  and  pay  the  loss.  Yours 
truly,  A.  G.  Kellam." 

The  defendant  did  nothing  further,  and, 
on  suit  being  brought,  set  up  as  defense  fail- 
ure to  make  proof  of  loss.  Held,  the  letter 
of  December  22d,  marked  "Exhibit  B,"  was 
a  waiver. 

We  think  the  correct  rule  Is  laid  down  in 
Cooley's  Briefs  on  Insurance,  vol.  8,  p.  2681, 
Judge  McClaln  on  Fire  Insurance,  and  Kerr 
on  Insurance,  as  hereinafter  quoted:  "As 
stated,  it  is  essential  that  an  insurer  shall 
have  knowledge  of  the  grounds  of  forfeiture 
not  relied  on  In  denying  liability  on  specified 
grounds,  If  the  action  of  the  Insurer  is  to  be 
regarded  as  a  waiver  of  the  unasslgned 
grounds.  And  It  Is  also  essential  that  the 
unasslgned  grounds  be  such  that  they  could 
have  been  remedied  or  obviated  had  the  In- 
sured known  that  the  Insurer  Intended  to 
rely  thereon,  and  that  the  Insured  was  so 
far  misled  or  lulled  Into  security  by  the  si- 
lence as  to  such  grounds  that  to  enforce  them 
subsequently  would  be  unfair  or  unjust,  as 
the  whole  doctrine  depends  on  estoppel,  the 
Important  feature  of  which  is  loss  or  injury 
to  the  other  party  by  the  act  of  the  party  to 
be  estopped."  Judge  McClain,  of  the  Iowa 
Supreme  Court,  says  in  his  article  on  Fire 
Insurance  (19  Cyc.  793):  "It  has  been  gen- 
erally held  that  if  the  Insured,  after  a  loss 
has  occurred,  claims  a  forfeiture  for  non- 
compliance with  certain  conditions  of  the 
policy,  it  cannot  be  heard  afterward  to  as- 
sert further  or  different  breaches  as  a  de- 
fense.    The  authorities  are   by  no  means 

122N.W.-2e. 


nnanlmoua  Other  holdings  are  more  in  ac- 
cord with  general  principles  of  contract  and 
estoppel  In  holding  that  the  assertion  of  a 
forfeiture  upon  one  ground  does  not,  in  the 
absence  of  an  affirmative  statement  that  oth- 
er breaches  are  not  claimed,  amount  to  a 
waiver  of  a  right  to  set  up  such  further 
breaches."  Kerr  on  Ins.  706,  says:  "The 
doctrine  of  waiver,  as  asserted  against  in- 
surance companies,  in  connection  with  in- 
surance contracts,  to  avoid  the  strict  en- 
forcement of  conditions  contained  in  their 
contracts,  is  only  another  name  for  the  doc- 
trine of  estoppel.  It  can  only  be  Invoked 
where  the  conduct  of  the  companies  has 
been  such  as  to  Induce  action  In  reliance 
upon  it,  and  where  it  would  operate  as  a 
fraud  upon  the  assured  If  they  were  allowed 
to  disavow ' 'their  conduct  and  enforce  the 
conditions.  To  a  just  application  of  this 
doctrine  it  is  essential  that  the  party  sought 
to  be  estopped  from  denying  the  waiver 
claimed,  should  be  shown  to  have  been  ap- 
prised of  all  the  facts,  prior  to  or  at  the 
time  of  the  alleged  waiver."  The  follow- 
ing are  some  of  the  authorities  that  tend  to 
sustain  this  rule :  Northern  Ins.  Co.  v.  Ass'n, 
183  U.  S.  806,  22  Sup.  Ct  183,  46  L.  Ed.  213; 
Smith  V.  Continental  Ins.  Co.,  6  Dak.  433. 
43  N.  W.  810;  Hubbard  v.  Mutual  Reserve 
Ufe  Ins.  Co.  <C.  C)  80  Fed.  681;  Insurance 
Co.  V.  Wolff,  95  U.  S.  826,  24  L.  Ed.  387; 
St.  Onge  V.  Insurance  Co.  (C.  C)  80  Fed. 
703;  Devens  v.  Insurance  Co.,  83  N.  T.  168; 
Weed  V.  Insurance  Co.,  116  N.  Y.  106,  22  N. 
B.  229;  Gibson  Electric  Co.  v.  Insurance  Co., 
159  N.  Y.  418,  54  N.  B.  23;  Everett  v.  In- 
surance Co.,  142  Pa.  332,  21  Atl.  819;  Mc- 
Cormick  v.  Insurance  Co.,  163  Pa.  184,  29 
Atl.  747;  Casslmus  v.  Insurance  Co.,  135 
Ala.  256,  33  South.  163;  Robinson  v.  In- 
surance Co.,  135  Ala.  650,  34  South.  18; 
Thompson  v.  Insurance  Co.,  11  N.  D.  274,  91 
N.  W.  75,  8.  C.  13  N.  D.  444,  101  N.  W.  900 ; 
Yandervolgen  v.  Insurance  Co.,  123  Mich. 
291,  82  N.  W.  46;  Keet-Rountree  Dry  Goods 
Store  V.  Insurance  Co.,  100  Mo.  App.  504,  74 
S.  W.  469;  Kerr  on  Ins.  pp.  714-716,  and 
cases  cited;  Clements  on  Ins.  pp.  436,  437. 
Kerr  on  Ins.  p.  715,  supra,  says :  "The  rule 
is  that,  when  an  insurance  company  becomes 
aware  that  all  rights  under  a  policy  have 
been  lost,  it  cannot,  for  an  indefinite  period, 
disguise  its  purpose  to  resist  payment  of  the 
loss  by  affirmative  action  which  would  lead 
the  Insured  to  believe  that  it  admits  its  lia- 
bility, and  Intends  to  discbarge  it  Thus  an 
adjustment  of  a  loss  with  full  knowledge  by 
tbe  insurer  of  the  violations  of  a  condition 
of  the  policy,  and  without  notifying  the  in- 
sured of  an  intention  to  insist  upon  the  for- 
feiture. Is  a  waiver  of  its  rights  to  assert  tbe 
forfeiture;  and  the  collection  of  a  premium 
for  the  Insurance  covering  tbe  loss;  and  the 
requirement  of  original  proofs  of  loss,  or  the 
amendment  of  defective  proofs;  and  a  de- 
mand for  arbitration." 
In    Insurance   Co.    v.    Wolff,    supra,    tbe 


Digitized  by  VjOOQ  l€ 


402 


122  NOBTHWESTBRN  REPORTER. 


(X.  D. 


United  States  Supreme  Court,  through  Mr. 
Jastice  Field,  said:  "The  doctrine  of  waiver, 
as  asserted  against  Insurance  companies  to 
avoid  the  strict  enforcement  of  conditions 
contained  in  their  policies,  is  only  another 
name  for  the  doctrine  of  estoppel.  It  can 
only  be  invoked  where  the  conduct  of  the 
companies  has  been  such  as  to  induce  action 
in  reliance  upon  it,  and  where  it  would  op- 
erate as  a  fraud  upon  the  assured  if  they 
were  Afterwards  allowed  to  disavow  their 
conduct  and  enforce  the  conditions." 

In  Devens  v.  Insurance  Ck).,  supra,  there 
was  Insurance  on  a  boat.  There  was  a 
breach  of  warranty,  in  that  the  owners  kept 
it  at  a  different  place  than  that  specified  in 
the  policy.  The  captain,  while  heating  pitch, 
set  the  boat  on  fire.  When  proof  of  loss  was 
presented  to  the  defendant,  it  refused  to  pay 
on  the  ground  that  the  fire  was  caused  by 
the  carelessness  of  the  captain  of  the  boat. 
On  the  trial  It  relied  on  the  breach  of  war- 
ranty. Held,  not  an  estoppel.  In  speaking 
of  Brink  y.  Insurance  Co.,  cited  by  respond- 
ent, Judge  Andrews  said:  "The  doctrine  of 
waiver  was,  we  think,  properly  applied  in 
that  case;  but  it  should  not  be' extended  as 
to  deprive  a  party  of  his  defense,  merely  be- 
cause he  negligently  or  incautiously  when  the 
claim  is  first  presented,  while  denying  his  li- 
ability, omits  to  disclose  the  ground  of  his 
defense,  or  states  another  ground  than  that 
upon  which  he  finally  relies.  There  must  in 
addition  be  evidence  from  which  the  Jury 
would  be  Justified  in  finding  that  with  full 
knowledge  of  the  facts  there  was  an  Intention 
to  abandon,  or  not  to  insist  upon  the  particu- 
lar defense  afterward  relied  upon,  or  that  it 
was  purposely  concealed  under  .circumstances 
calculated  to,  and  which  actually  did,  mis- 
lead the  other  party  to  his  Injury." 

In  Cassinuis  v.  Insuronce  Co.,  supra,  the  In- 
surance was  on  a  stock  of  merchandise.  The 
policy  provided,  among  other  things,  that,  if 
gasoline  was  stored  In  the  premises,  it  vitiat- 
ed the  Insurance,  or  If  anything  was  kept  on 
the  premises  that  tended  to  Increase  the  haz- 
ard. Upon  receli)t  of  proof  of  loss,  the  com- 
pany denied  liability  on  one  ground,  and 
when  suit  was  commenced  defended  on  two. 
The  Supreme  Court  of  Alabama  said:  "The 
fact  that  the  defendant,  upon  the  receipt  of 
notice  and  proof  of  loss,  denied  any  liability 
under  the  policy,  stating  af  the  time  where- 
in its  conditions  had  been  violated  in  only 
one  particular,  did  not  prevent  it  from  after- 
wards setting  up  in  defense  other  and  dif- 
ferent breaches  of  the  conditions  of  the  poli- 
cy, when  it  is  not  shown  that  the  plaintiff 
was  misled  to  bis  injury  by  the  claim  of  non- 
liability on  the  particular  ground  stated." 

Thompson  v.  Life  Ins.  Co.,  supra,  was  an 
action  on  a  life  insurance  policy.  The  court 
said :  "Waivers  are  sustained  because  the  In- 
sured has  been  misled  to  bis  prejudice." 

In  most  of  the  cases  cited  by  respondent, 
the  insurance  companies,  after  the  fire,  by 
their  acts  led  the  Insurer  to  believe  that  they 


were  liable  and  Intended  to  pay  the  loss.    The 
case  of  Smith  v.  Insurance  Co.  tends  to  sus- 
tain respondent's  contention;  but,  as  hereiu- 
before  stated,  it  was  not  necessary  to  decide 
the  question  of  estoppel  in  that  case,  and  it 
seems  to  have  been  at  least  partially  overrul- 
ed by  the  later  case  of  Vandervolgen  v.  In- 
surance Co.,  123  Mich.  291,  82  N.  W.  40.     It 
is  plain  to  us  that  the  plaintiff  cannot  pre- 
vail in  this  action.    It  could  not  have  beeu 
misled  by  the  letter  of  the  defendant.     Its 
position  was  in  no  way  changed  by  such  let- 
ter.    The  plaintiff  previously   procured   the 
additional  insurance,  had  removed  the  prop- 
erty, and  Installed  the  gasoline  plant,  whlcb 
caused  the  fire.     Defendant  at  the  time  It 
wrote  the  letter  assumed  that  the  policy  bad 
been  canceled,  and,  if  it  had  been,  of  course, 
it  was  not  liable.    At  the  commencement  of 
this  action  It  appeared  from  the  complaint 
that  the  plaintiff  had  no  knowledge  of  the 
cancellation  or  attempted  cancellation  of  the 
I)olicy  of  insurance  by  defendant.    This  the 
defendant  was  not  aware  of  at  the  time  it 
wrote  the  letter  returning  the  proofs  of  loss. 
Hence  it  was  not  estopped  from  pleading  its 
other  defenses  which  the  plaintiff  concedes 
made  the  insurance  void,  but  insists  that  de- 
fendant is  estopped  from  making  these  de- 
fenses by  reason  of  the  letter  hereinbefore 
mentioned.    We  think  not    It  at  all  times  de- 
nied its  liability,  and  plaintiff  has  in  no  way 
been  misled  by  any  act  or  statement  of  the 
defendant     It  has  done  nothing  under  the 
policy;    has  exercised  no  right  by  virtue  of 
it;   nor  has  it  required  the  plaintiff  to  per- 
form any  act  which  it  was  required  by  virtue 
of  the  policy  to  perform.     The  policy  was 
void  before  the  fire  occurred,  and  was  void 
by  acts  knowingly  committed  by  plaintiff; 
and  the  letter  of  defendant  denying  liability 
on  the  ground  that  the  policy  had  been  can- 
celed did  not  revive  it     If  D.  P.  Robinson 
had  carried  out  the  instructions  of  the  plain- 
tiff and  obtained  from  the  defendant  an  In- 
dorsement on  the  policy,  consenting  and  pro- 
viding  that   the   said    policy    of   insurance 
should  cover  the  building  and  personal  prop- 
erty therein  described,  at  its  then  location  on 
lots  11  and  12,  in  block  11,  of  the  new  town 
of  Garrison,  would  not  have  helped  the  plain- 
tiff in  this  action,  as  the  plaintiff  never  asked 
for  any  permission  to  obtain  additional  In- 
surance or  to  use  the  gasoline  lighting  plant, 
which  caused  the  fire.    If  the  defendant  bad 
made  the  indorsement  as  the  plaintiff  intend- 
ed it  should,  it  wduld  have  known  that  the 
policy  was  not  canceled,  and  could,  if  it  desir- 
ed, have  defended  any  action  brought  against 
it  on  the  ground  that  it  had  not  given  plain- 
tiff permission  to  obtain  additional  insurance 
or  install  the  gasoline  lighting  plant 

The  district  court  of  Grand  Forks  county 
will  reverse  its  Judgment  and  enter  a  Judg- 
ment dismissing  the  complaint    All  eoncur. 

MORGAN,  C.  J~  not  participating.  CHAS. 
A.  POLLOCK,  Judge  of  the  Third  Judicial 
District,  sitting  by  request    ^^^i^ 

Digitized  by  VjOOy  Ic 


N.  D.) 


STERX  V.  CITY  OF  FARQO. 


403 


STERN  T.  CITY  OP  FARGO  et  al. 

(Snpreme  Court  of  North  Dakota.     Jane  19, 

1909.) 

1.  MUNlCIPAt  COSPOBATIONS  (S  59*)— POWEBS. 

Cities  have  only  the  following  powers: 

(a)  Those  granted  in  express  woras. 

(b)  Those  necessarily  implied  or  incident  to 
the  powers  expressly  granted. 

(c)  Those  essential  to  the  declared  objects  and 
purposes  of  the  corporation— not  simply  conven- 
ient, but  indispensable. 

[Eid.  Note. — For  other  cases,  see  Municipal 
Coiporatioos.  Cent  Dig.  gj  144,  149 ;   Dec.  Dig. 

2.  MUNICIPAI,  COBFORATIONS  (J  58*)— POWTSS 
— CONSTBUCTION  AGAINST. 

'  Doubtful  claims  of  power,  or.  doubt  or  am- 
biguity in  the  terms  used  by  the  Legislature, 
are  resolved  against  the  corporation. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  g  14o;  Dec.  Dig.  { 
58.*] 

3.  MUNICIPAl,   GOBPORATIONS    (§   907*)— POW- 

iBS— Issuance  of  Bonds— Constitutional 

AND  Statutory  Provisions. 

The  Constitution  and  statutes  providing  for 
the  issuance  of  municipal  bonds  are  more  strict- 
ly construed  in  actions  to  prevent  their  issuance 
than  i^  actions  to  prevent  their  payment  after 
they  have  been  issued  and  negotiated, 

[Ei.  Note. — For  other  cases,  see  Municipal 
Corporations,  Dec.  Dig.  }  907.*] 

4.  Mdnicipai,  Cobpobations  (§8  917,  918*)— 
Bonds— Notice  of  Election. 

Section  2678,  Rev.  Codes  1905,  in  enumer^ 
•ting  the  powers  of  cities,  among  other  things 
provides  how  and  for  what  purpose  bonds  may 
be  issued,  and  requires  that  the  question  of  is- 
suing bonds  for  the  construction  or  purchase  of 
waterworks  shall  be  submitted  to  a  vote  of  the 
electors  of  the  city,  at  an  election,  after  20 
days'  notice  stating,  among  other  things,  the 
puri>ose  for  which  the  bonds  are  to  be  issued, 
and  the  amount  thereof. 

Held,  tliat  a  resolution  of  a  city  council,  pro- 
viding for  the  issuance  of  $100,000  in  bonds,  or 
such  part  thereof  as  may  be  required,  and  a 
notice  of  an  election  to  submit  such  issuance  to 
the  voters,  in  the  same  language  as  the  resolu- 
tion, did  not  state  the  amount  of  bonds  to  be 
voted  upon,  and  that  without  such  statement 
the  question  of  the  issuance  of  bonds  is  not  fair- 
ly presented  to  the  electors,  who  are  entitled  to 
know  definitely  what  is  proposed  in  the  way  of 
increasing  the  indebtedness  of  the  city. 

[EJd.  Note. — For  other  cases,  see  Municipal 
Corporations,  Dec.  Dig.  U  917,  918.*] 

5.  Municipal  Cobpobations  (§  918*)— Bonds 
— Notice  of  Election. 

The  duties  of  tlie  auditor  in  issuing  the  no- 
tice of  such  an  election  are  purely  ministerial, 
and  such  notice  must  follow  the  terms  and  con- 
ditions of  the  resolution  authorizing  the  elec- 
tion. 

[Ejd.  Note. — For  other  cases,  see  Municipal 
Corporations,  Dec.  Dig.  §  918.*] 

C  Municipal  Cobpobations  (S  918*)— Bonds 
— ^PowEB  to  Issue— Delegation. 

The   power    to   authorize    the   issuance   of 

bonds  is  vested  in  the  voters,  and  they  cannot 

delegate  such  power  to  the  city  council. 
[Ed.    Note. — For  other  cases,   see  Municipal 

Corporations,  Dec.  Dig.  S  918.*] 

7.  Mijhicipai,  Cobpobations  (S  918*)— Bonds 
— Notice  of  Election. 

The  object  of  the  notice  of  election,  and 
die  requirement  that  the  amount  of  the  bonds 
be  stated,  is  to  give  the  voters  and  taxpayers 


such  information  as  will  enable  them  to  consid- 
er, weigh,  and  discuss  the  merits  of  the  propo^ 
tion,  and  to  avail  themselves  of  the  opportunity 
ao  given  to  acquire  information  as  to  the  neces- 
sity of  the  proposed  expenditure  and  the  amount 
of  the  indebtedness  necessary  to  incur  to  enable 
the  city  council  to  carry  out  its  plans.  When 
the  notice  fails  to  state  the  amount  of  indebted- 
ness proposed  to  be  incurred  by  the  issuance 
of  bonds,  opportunity  is  not  afforded  the  voters 
to  inform  themselves  so  as  to  be  able  to  vote 
intelligently. 

[E^.   Note. — For  other  cases,   see  Municipal 
Corporations,  Dec.  Dig.  g  918.*] 

8.  MuNiciPAi,  Cobpobations  (g  918*)— Bonds 
—Notice  op  Election. 

An  election  for  the  issuance  of  bonds,  un- 
der the  provisions  of  section  183  of  the  Consti- 
tution and  section  2678,  Rev.  Codes  1905,  for 
the  construction  of  part  of  a  waterworks  sys- 
tem, on  a  notice  which  did  not  state  the  amount 
of  the  bonds  to  be  issued,  is  invalid,  and  the 
council  is  not  authorized  thereby  to  issue  bonds 
voted. 

[E^.   Note.— For  other  cases,   see  Municipal 
Corporations,  Dec.  Dig.  g  918.*] 

9.  Municipal  Cobpobations  (i|  917,  918*)— 
Bonds — Notice  of  Purpose. 

A  resolution  of  a  city  council,  providing  for 
an  election,  and  a  notice  of  such  an  election,  un- 
der section  2678,  Rev.  Codes  1905,  must  state 
the  purpose  for  which  it  is  proposed  to  issue 
bonds. 

[Ed.   Note. — For  other  cases,   see  Manlcipal 
Corporations,  Dec.  Dig.  gg  917,  918. •] 

10.  Municipal  Cobpobations  (g  918*>— Bonds 
—Election— Double  Question. 

The  Legislature,  by  the  provisions  which  it 
has  made  for  the  issuance  of  bonds  by  cities, 
has  not  provided  for  submitting  the  question  of 
their  issuance  to  the  voters  in  such  a  manner  as 
to  permit  only  a  vote  for  or  against  the  issuance 
of  bonds  for  two  or  more  purposes  on  a  single 
vote.  ' 

[Ed.    Note. — For  other   cases,   see   Municipal 
Corporations,  Dec.  Dig.  g  918.*] 

11.  Elections   (g    184*)— Doublb   Questiok. 
Under  our  system  of  -elections,  every  voter 

is  entitled  to  the  opportunity  to  vote  for  or 
against  any  question  submitted,  separately  and 
independently  from  his  vote  for  or  against  any 
other  proposition  submitted. 

[Ed.   Note.— For  other  cases,   see   Elections. 
Dec.  Dig.  §  184.*] 

12.  Municipal     Cobpobations     (|     918*)  — 
Bonds— Bij:CTi0N— Double  Question. 

The  test  whether  questions  submitted  in- 
clude one  purpose  or  more  is  whether  the  ob- 
jects for  which  bonds  are  to  be  issued  have  a 
natural  or  necessary  connection  with  each  oth- 
er; and,  if  they  have  not,  two  purposes  cannot 
be  made  one  by  verbal  connection. 

[Ed.   Note.— For  other  cases,  see  Municipal 
Corporations,  Dec.  Dig.  g  918.*] 

13.  Statutes  (g  181*)— Constbuction— Pub- 
lic Good. 

When  the  meaning  of  a  statute  is  doubtful, 
so  that  either  of  two  constructions  may  with 
propriety  be  adopted  by  the  court,  it  is  the  duty 
of  the  court  to  adopt  that  construction  best  cal- 
culated to  protect  the  public  against  fraud  and 
imposition,  even  though  in  individual  instances 
such  construction  may  work  slight  hardship. 

[Ed.    Note. — For    other   cases,    see    StatuteiL 
Cent  Dig.  g  263;   Dec.  Dig.  g  181.*] 

14.  Elections  (g  184*)— Double  Question. 
The  fact  that  one  construction  of  a  statute 

of  doubtful  import,  if  it  be  conceded  that  the 
meaning  of  the  statute  in  question  is  doubtful, 
would  admit  of  the  submission  of  a  question  de- 


•For  other  cases  l«e  same  topio  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  IndezM 


Digitized  by  VjOOQ  IC 


404 


122  NOBTHWSSTBRN  BEPORTEB. 


(N.D. 


void  of  ment  in  connection  with  another  of 
unQueationed  merit,  and  the  adoption  of  a  weak 
propoaition  by  reason  of  its  aubmission  in  con- 
nection witli  a  meritorious  one,  fumiahea  a 
stronc  reaaon  for  the  rule  of  eonatruction  atated 
in  paragraph  11,  and  this  reaaon  appliea  not- 
withstanding no  qneation  is  made  in  this  case 
aa  to  the  good  faith  or  merita  of  either  proposi- 
tion aubmitted  by  the  city  council. 

[E)d.   Note.— For  other  cases,   see   Eilections, 
Dec.  Dig.  i  184.*] 

15.  MuinOIPAI.     COBFOBATIONS     (|     918*)    — 

BoRDa— Blxotiom— D0UBI.K  Question. 
A  resolution  adopted  by  the  city  council, 
providing  for  an  election  to  vote  on  the  Issuance 
of  bonds,  and  a  notice  by  the  city  auditor  of 
such  election,  which  state  the  purposes  of  the 
proposed  bond  issue  to  be  "to  defray  the  cost  of 

Uding  and   constructing   a   new   waterworlcs 


pumping  atatlon  and  installing  therein  a  new 
high  duty  pump  and  necessary  steam  boilers, 
*     *     *     and  for  the  purpose  of  installing  an 


electric   light    plant   in    connection    with    said 

flumping  station  for  furnishing  street  and  other 
ights  and  power,"  state  two  purposes  and  an 
election  held  pursuant  to  such  resolution  and 
notice  is  lUegai.  and  a  majority  vote  in  favor  of 
issuing  t>ond8  tor  the  purposes  atated  does  not 
authorise  or  empower  the  city  council  to  iasue 
them. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Dec  Dig.  i  918.*] 

16.  MuNiciFAi.  Indebtedness. 

Section  183  of  the  Constitution,  and  the 
statute,  provide  a  debt  limit,  for  general  pur- 
poses of  cities,  of  6  per  cent.,  with  power  to  in- 
cur additional  indebtedness  equaling  3  per  cent, 
of  the  assessed  valuation  on  a  two-thirds  vote, 
making  a  possible  indebtedness  for  general  pur- 
poses of  8  per  cent.  It  is  also  provided  that  a 
city,  when  authorized  by  a  majority  vote,  may 
increase  its  indebtedness,  not  exceeding  4  per 
.'Cent^  without  regard  to  existing  indebtedness, 
for  ue  construction  or  purchase  of  waterworks 
or  constructing  aewers,  and  for  no  other  pur- 
pose whatever. 

Query:  Can  a  city  iasue  bonda  for  the  con- 
struction of  waterworks  or  sewers  in  such  a 
manner  as  to  necessarily  include  the  amount  of 
such  bonds  in  the  9  per  cent,  or  8  per  cent,  debt 
limit  provided  for  ordinary  pnrposes,  or  must 
they  be  issued  in  such  a  manner  as  to  lie  in- 
cluded within  the  4  per  cent,  provision  for  the 
conatniction  of  waterworks  and  sewers?  If 
they  must  be  so  issued  as  to  admit  of  their  being 
included  within  the  4  per  cent,  special  water- 
works provision,  the  connection  of  an  electric 
li^t  plant,  or  of  any  other  subject  except  sew- 
ers, with  waterworks  in  the  issuance  of  bonds 
furnishes  an  additional  reason  for  holding  the 
proposed  iaaue  under  consideration  illegal. 

(Syllabns  by  the  Court) 

Appeal  from  District  Court,  Cass  County; 
Pollock,  Judge. 

Action  by  Max  Stern  to  enjoin  the  city 
of  Fargo,  and  the  Mayor  and  Auditor  there- 
of, from  issuing  bonds  voted  for  the  con- 
struction of  a  pumping  station  and  electric 
light  plant  Judgment  for  defendants,  and 
plaintiff  appeals.  Reversed,  with  directions 
to  enter  a  decree  in  accordance  with  a  pray- 
er of  the  complaint 

E.  H.  Wright,  for  appellant  W.  C.  Res- 
ser  and  Engerud,  Holt  &  Frame,  for  respond- 
ents. Andrew  Miller,  Atty.  Gen.,  for  Board 
of  University  and  School  Lands. 


SPALDING,  J.  Section  130  of  the  Con- 
stitution of  this  state  requires  the  legisla- 
tive assembly  to  restrict  the  powers  of  mn- 
nicipal  coriwratlons  as  to  levying  taxes  and 
assessments,  borrowing  money  and  contract- 
ing debts,  and  prohibits  the  diversion  of 
money  raised  by  taxation,  loan,  or  assess- 
ment for  any  purpose,  to  any  other  purpose, 
except  by  authority  of  law.  Section  183 
provides  that  the  debt  of  any  municipality 
shall  never  exceed  5  per  centum  upon  the 
value  of  the  taxable  property  therein,  but 
permits  any  incorporated  d^,  by  a  two- 
thirds  vote,  to  increase  such  Indebtedness  3 
per  cent  on  such  assesse^^  valuation  beyond 
said  6  per  cent  limit,  and  provides  that  any 
incorporated  city  may  become  indebted  in 
any  amount  not  exceeding  4  per  centum 
of  such  assessed  valuation,  without  regard 
to  the  existing  Indebtedness  of  such  city,  for 
the  purpose  of  constructing  or  purchasing 
waterworks  for  furnishing  a  supply  of  water 
to  the  Inhabitants  of  such  city,  or  for  the 
purpose  of  constructing  sewers,  and  for  no 
other  purpose  whatever. 

The  legislative  assembly,  in  chapter  30 
of  the  Political  Code,  commencing  with  sec- 
tion 2632,  Rev.  Codes  1905,  has  provided  for 
the  organization  and  Incorporation  of  cities. 
Article  4  of  said  chapter,  commencing  with 
section  2678,  enumerates  the  general  pow- 
ers of  city  councils  in  78  paragraplis  or  ar- 
tides.  Paragraph  6  gives  it  power  to  bor- 
row money  on  the  credit  of  the  corporation, 
for  corporation  purposes,  and  to  issue  bonds 
therefor  in  such  amounts  and  forms,  and  on 
such  conditions,  as  it  shall  prescribe,  and 
provides  that  no  such  dty  shall  become  in- 
debted In  any  manner,  or  for  any  purpose, 
to  an  amount,  including  existing  indebted- 
ness, exceeding  5  per  cent  of  the  taxable 
property  therein.  Then  follows  the  proviso, 
contained  in  the  section  of  the  Constitution 
quoted,  relating  to  an  increase  of  sach  in- 
debtedness, on  a  two-thirds  vote,  of  8  per 
cent,  and  the  further  proviso  quoted  relat- 
ing to  indebtedness  in  any  amount,  not  ex- 
ceeding 4  per  cent,  for  the  purpose  of  con- 
structing or  purchasing  waterworks,  with 
the  additional  power  to  issue  bonds  therefor, 
and  the  further  proviso  that  the  city,  beforb 
or  at  the  time  of  issuing  any  of  the  bonds 
mentioned,  or  incurring  the  indebtedness  for 
which  the  same  are  to  be  Issued,  shall  pro- 
vide for  a  direct  annual  tax  sufficient  to  pay 
the  interest  on  such  debt  or  bonds  when  it 
falls  due,  and  to  pay  and  discharge  the  prin- 
cipal when  the  same  becomes  due,  and  that 
such  provisions  shall  be  Irrepealable  until 
such  debt  is  paid.  The  final  paragraph  of 
the  section  provides  "further  that  none  of 
the  hereinbefore  mentioned  bonds  shall  be  is- 
sued, either  for  special  or  general  pnrpo^s, 
except  as  by  law  otherwise  provided  unless  at 
an  election,  after  twenty  days'  notice  in  a 
newspaper  published  in  the  city  stating  the 


fFor  other  cues  see  sam*  topic  and  Bsctton  NUMBER  In  Dec.  ft  Am.  Dlsa.  1W7  to  data,  *  Reporter  Indues 


Digitized  by  VjOOQ  l€ 


N.D.) 


8TEEN  T.  CITY  OP  FARGO. 


405 


purpoM  tor  wblcb  such  bonds  are  to  b*  1*- 
■ned,  and  the  amount  tbereof,  the  legal  Tot- 
era  of  Bald  dty  ahall,  by  a  majority  vote,  de- 
tannine  In  favor  of  laaulnc  BDch  bonds."  Par-, 
agrapb  11  of  section  2878  gives  tbe  oooncQ 
power  to  provide  for  tbe  ligbtlng  of  streets, 
and  to  provide  for  the  fnmlshlng  of  lights  to 
the  Inhabitants  of  the  city,  and  paragraph 
75  to  purchase  and  erect,  lease,  rent,  manage, 
and  malntjiln  any  system,  or  part  of  system, 
of  waterworks,  hydrants,  and  supply  of  wa- 
ter, telegraphing,  fire  signals,  or  fire  appara- 
tus that  may  be  of  use  In  the  prevention  and 
eztlngnlshment  of  fires,  and  to  pass  all  ordi- 
nances, penal  or  otherwise,  that  shall  be  nec- 
essary for  the  full  protection,  maintenance, 
management,  and  control  of  the  property  so 
leased,  purchased,  or  erected. 

The  city  council  of  Fargo  passed,  and  the 
mayor  approved,  on  the  1st  day  of  March, 
1909,  a  resolution  as  follows : 

"Be  it  resolved,  by  the  city  council  of  tbe 
dty  of  Fargo: 

"That,  at  the  annual  election,  for  elective 
officers  for  tbe  city  of  Fargo,  to  be  held  on 
Monday,  the  6th  day  of  April,  1909,  there 
shall  be  submitted  to  the  legal  voters  of  said 
city,  the  question,  whether  or  not  one  hun- 
dred thousand  dollars  ($100,000.00),  or  such 
part  thereof  as  may  be  required,  in  bonds  of 
the  said  city.  In  denominations  of  one  thou- 
sand dollars  ($1,000.00),  each,  to  mature  as 
follows,  to  wit :  Thirty  thousand  dollars  ($30,- 
000.00)  thereof  in  ten  years  from  date  of  is- 
sue; thirty-flve  thousand  dollars  ($35,000.00) 
thereof  in  fifteen  years  from  date  of  issue 
and  thirty-five  thousand  dollars  ($35,000.00) 
residue  thereof  In  twenty  years  from  date  of 
Issue,  and  to  bear  Interest  at  the  rate  of  four 
per  centum  per  annum,  payable  semiannual- 
ly, shall  be  issued  by  tbe  said  dty  of  Fargo 
for  the  sole  purpose  of  defraying  the  cost  of 
building  and  constructing  a  new  waterworks 
pumping  station,  and  installing  therein  a  new 
high  duty  pump  and  necessary  steam  boilers 
and  other  needed  machinery  and  appliances, 
and  for  building,  constructing  and  equipping 
of  a  filtration  plant  In  connection  with  said 
pumping  station,  and  for  paying  such  portion 
of  the  cost  of  constructing  a  water  main  of 
snffident  capadty,  extending  from  the  pres- 
ent location  of  the  waterworks  pumping  sta- 
tion In  Island  Park  to  the  selected  location 
for  tbe  new  pumping  station  in  block  two  (2) 
of  Sooth  Park  addition  to  the  dty  of  Fargo, 
vree  and  above  such  part  of  the  cost  there- 
of as  can  be  assessed  against  the  property 
along  the  route  of  the  said  water  main,  for 
fnmlshlng  to  the  inhabitants  of  tbe  said  dty 
of  Fargo  an  adequate  and  pure  supply  of  wat- 
er; and  for  the  purpose  of  Installing  an 
electric  light  plant  In  connection  with  the 
said  pumping  station  for  furnishing  street 
and  other  lights  and  power. 

"That  the  dty  auditor  be,  and  is  hereby  di- 
rected to  have  printed  on  the  regular  ballots 
for  sndi  annual  election  the  following :  'For 
Issaing  bonds  for  waterworks,  filtration  and 


electric  light  plants  and  ezten^loni^  and 
'Against  issuing  bonds  for  waterworks,  filtra- 
tion and  electric  light  plants  and  extensions.' 

"That  the  dty  auditor  be  and  he  is  hereby 
directed  to  give  legal  notice  that  such  ques- 
tion will  be  submitted  to  the  legal  voters  of 
the  said  dty  of  Fargo  at  such  annual  elec- 
tion, by  publication  of  this  resolution  in  the 
oflSclal  newspaper  of  the  dty  of  Fargo  and  in 
the  other  dally  newspapers  of  the  said  dty, 
for  twenty  days  next  preceding  the  said  elec- 
tion, as  required  by  law." 

And  the  dty  auditor,  in  the  notice  for  the 
annual  election  of  the  dty  of  Fargo,  Induded 
the  following  notice : 

"Notice  is  hereby  given  that  the  annual 
election  In  and  for  the  dty  of  Fargo,  Cass 
county.  North  Dakota,  will  be  held  on  Mon- 
day, the  fifth  day  of  April,  1909,  at  the  fol- 
lowing polling  places  In  the  several  wards  of 
thedty,  to  wit:    •    •    • 

"Said  election  will  be  held  for  the  eledlon 
of  one  alderman  in  each  of  the  seven  wards 
of  the  dty,  and  there  will  also  be  presented 
to  the  electors  of  the  dty  for  their  votes  the 
proposition  of  the  issue  by  the  dty,  of 
$100,000.00  four  per  cent,  bonds,  or  such  part 
thereof  as  may  be  required,  for  the  construc- 
tion of  a  new  waterworks  pumping  station 
and  filtration  plant,  etc.,  and  for  the  purpose 
of  installing  an  electric  lighting  plant  in  con- 
nection with  said  pumping  station,  which 
proposition  is  more  fully  set  forth  in  a  certi- 
fied copy  of  the  resolution  adopted  by  the  city 
council,  which  Is  published  elsewhere  in  this 
issue  of  this  newspaper." 

The  question  so  submitted  received  more 
than  a  majority  of  the  votes  cast  on  the  sub- 
ject of  bonds  at  such  election,  and  thereaft- 
er the  city  council  passed,  and  the  mayor  ap- 
proved, an  ordinance  providing  for  the  Is- 
suance of  such  bonds.  The  ballot  contained 
the  question,  "Shall  the  dty  of  Fargo  issue 
$100,000.00  or  such  part  thereof  as  may  be 
required,  in  bonds  of  said  dty?"  redting  the 
denominations,  dates  of  payment,  rate  of 
interest,  and  the  purposes  stated  in  the  reso- 
lution. The  appellant  brought  this  action, 
setting  out  these  facts,  and  asking  that  all 
the  proceedings'  relating  to  such  bond  issue, 
including  the  tax  levy  which  was  provided 
for  in  the  ordinance  mentioned,  be  adjudged 
null  and  void,  and  for  an  order  enjoining  and 
restraining  the  mayor  and  auditor  from  ex- 
ecuting or  delivering  any  of  the  proposed 
bonds,  and  the  auditor  from  certifying  the 
proposed  tax  levy  to  the  connty  auditor.  The 
respondents,  the  dty  of  Fargo,  the  mayor,  and 
auditor,  interposed  a  general  demurrer  to  the 
appellant's  complaint  The  trial  court  sus- 
tained such  demurrer,  and  plaintiff  appeals 
from  the  order  sustaining  it 

Three  questions  are  presented  for  our  con- 
sideration by  this  appeal  :  (1)  That  the  no- 
tice of  election  does  not  specify  tbe  pur- 
pose for  which  the  bonds  are  to  be  issued: 
(29  that  the  notice  of  election  does  not  state 


Digitized  by  VjOOQ  l€ 


406 


122  NORTHWESTEBN  REPORTER. 


(N.D. 


the  amount  of  bonds  that  are  to  be  Issued; 
(3)  that  by  reason  of  the  constitutional  and 
statutory  provisions  heretofore  quoted,  pro- 
viding for  the  issuance  of  bonds  to  an  amount 
not  exceeding  4  per  cent  of  the  assessed 
▼ainatlon,  for  the  purpose  of  constructing  or 
purchasing  waterworks  or  constructing  sew- 
ers, and  for  no  other  purpose  whatever,  and 
to  issue  btmHa  therefor,  the  proposition  to 
issue  bonds  for  the  construction  of  water- 
works may  not  properly  be, coupled  with  a 
proposition  to  install  an  electric  light  plant. 

We  shall  consider  the  first  and  third  of 
these  propositions  together.  Preliminary  to 
the  cousideration  of  these  objections  we  may 
say  that  it  is  well  settled  that  incorporated 
cities-  have  only  the  following  powers:  (1) 
Those  granted  in  express  words;  (2)  those 
necessarily  implied  or  Incident  to  the  powers 
expressly  granted;  (3)  those  essential  to  the 
declared  objects  and  purposes  of  the  corpora- 
tion— not  simply  convenient,  ,but  indispensa- 
ble; (4)  that  doubtful  claims  of  power,  or 
doubt  or  ambiguity  in  the  terms  used  by  the 
Legislature,  are  resolved  against  the  corpo- 
ration. Voss  V.  Waterloo  Water  Company, 
163  Ind.  69,  71  N.  E.  208,  66  L.  R.  A.  95, 
106  Am.  St.  Rep.  201,  and  cases  cited ;  City 
of  Champaign  v.  Harmon,  98  111.  491 ;  Thomp- 
son T.  Lee  County,  8  W^all.  327,  18  L.  Ed. 
177;  MIntum  v.  Larue,  23  How.  435,  16  L. 
Ed.  574.  It  may  also  be  stated  as  a  rule 
that  in  considering  the  legality  of  a  proposed 
bond  issue  by  a  city,  courts  construe  the 
Constitution  and  statutes  more  strictly  than 
they  are  construed  in  determining  the  va- 
lidity of  Iwnds  already  issued  and  disposed 
of.    21  Am.  &  Eug.  Ency.  of  Law,  33,  45. 

1.  Neither  the  resolution  authorizing  the 
election,  nor  the  notice  published  by  the 
auditor,  states  the  amount  of  the  proposed 
bond  issue.  The  language  is  "|100,000  or 
such  part  thereof  as  may  be  required."  The 
members  of  this  court  are  agreed  that  this 
failure  to  state  the  amount  of  bonds  which 
it  was  proposed  to  issue  invalidates  the  pro- 
ceedings. The  statute  requires  the  notice  to 
state  the  amount  of  the  proposed  issue  of 
bonds.  The  Issuance  of  this  notice  by  the 
auditor  is  a  ministerial  act,  and  he  derives 
his  authority  in  the  premises  from  the  ac- 
tion of  the  city  council,  and  we  conclude  that 
It  is  essential  to  the  legality  of  the  proceed- 
ings that  both  the  resolution  of  the  council 
and  the  notice  of  election  state  definitely  the 
amount  of  bonds,  for  and  against  which  the 
vote  is  to  be  taken.  Without  such  statement 
the  question  is  not  fairly  presented  to  the 
electors.  They  are  entitled  to  know  definite- 
ly what  is  proposed  in  the  way  of  increasing 
the  Indebtedness  of  the  city.  Under  the  no- 
tice published,  based  on  the  resolution  of  the 
council,  that  body  may  decide  to  issue  any 
part  of  the  $100,000  in  bonds.  The  elector 
may  desire  to  oppose  the  proposition  if  the 
amount  so  stated  definitely  were  larger  or 
smaller.    The  proceedings  are  admitted  to  be 


taken  under  a  statute  vesting  an  express 
power  in  the  council.  Its  only  power  to  issue 
bonds  is  derived  from  the  statute,  and  any 
condition  which  the  statute  imposes  prece- 
dent must  be  complied  with  fairly  and  sub- 
stantially, and  the  voters  are  not  empowered 
to  delegate  the  power  to  fix  the  amount  of 
the  issue,  which  belongs  to  them,  to  the  city 
council.  In  Schultze  v.  Manchester,  61  N.  J. 
Law,  513,  40  Atl.  589,  an  election  having  been 
held  at  which  it  was  voted  to  authorize  the 
township  committee  to  issue  bonds  to  an 
amount  not  exceeding  $2,000,  under  a  stat- 
ute In  effect  like  ours,  the  court  held  that 
the  failure  to  specify  the  amount  to  be  is- 
sued was  a  fatal  defect,  and  that  no  such 
resolution,  with  discretionary  power  to  the 
township  committee  as  to  the  amount  to  be 
issued,  could  be  legally  submitted,  or  be  of 
any  effectiveness  if  submitted  and  adopted, 
and  the  court,  among  other  things,  says: 
"The  resolution  clearly  is  not  one  provided 
by  the  statute  to  be  submitted  to  the  legal 
voters.  The  voters  were  to  determine  the 
amount  by  voting  for  a  resolution  definitely 
fixing  the  amount,  or  defeat  any  issue  of 
bonds  by  voting  against  it  They  were  not 
to  be  called  to  delegate  the  power  to  the 
township  committee  to  issue,  in  their  discre- 
tion, bonds  to  the  amount  of  $500  or  $5,000. 
Under  this  statute  no  such  discretionary  pow- 
er could  be  vested  in  the  township  committee. 
The  authorities  fully  bear  out  this  proposi- 
tion that,  when  such  power  exists,  under  the 
statute,  in  the  legal  voters  to  order  any  issue 
of  bonds  to  a  certain  fixed  amount  that  pow- 
er cannot  be  delegated  to  another  body.  The 
power  was  vested  here  solely  in  the  voters, 
and  they  could  not,  as  they  did,  by  voting 
upon  this  resolution  submitted  to  them,  under 
the  statute,  for  their  determination,  dele- 
gate the  power  to  the  township  committee  of 
exercising  a  discretion  as  to  the  amount 
After  the  election,  upon  a  proper  resolution, 
the  action  of  the  township  committee  could 
only  be  ministerial  so  far  as  the  amount  to 
be  issued  was  involved — and  cites  many  au- 
thorities in  support  of  its  conclnsion. 

In  State  ex  rel.  Lexington  &  St.  Louis  R.  R. 
Co.  V.  Saline  Cotinty  Court,  45  Mo.  242,  the 
Supreme  Court  of  Missouri  passed  upon  this 
question.  A  law  authorized  the  court  to 
subscribe  stock  in  a  railway  company,  but 
provided  that  the  subscription  should  not 
be  made  unless  a  majority  of  the  taxpayers 
should  vote  for  it,  specifying  the  amount 
The  court  in  submitting  the  question  called 
on  the  electors  to  vote  for  or  against  an 
amount  not  exceeding  $70,000.  The  court 
held  that  no  amount  was  specified  by  the 
vote;  that  the  question  submitted  left  the 
precise  amount  undetermined.  To  the  same 
effect  see  City  Council  v.  Dawson  Water- 
works Company.  106  Ga.  696,  32  S.  E.  907, 
and  Hillsborough  County  et  al.  v.  Henderson 
et  al.,  45  Fla.  356,  33  South.  997.  In  the  lat- 
ter case  the  law  provided  that  the  resolution 


Digitized  by  VjOOQ  l€ 


N.D.) 


STERN  V.  CITY  OF  FARQO. 


407 


submlttlns  the  qnesdon  of  iBsaing  bonds  to  a 
vote  should  determine  the  rate  of  Interest 
to  be  paid  on  the  bonds.  The  resolution  sub- 
mitted provided  for  a  rate  of  interest  of 
not  more  than  4  per  centum  per  annum.  The 
court  held  that  this  was  not  a  substantial 
compliance  with  the  statute,  and  that  the 
fact  that  the  proposition  was  carried  by  pop- 
ular vote  did  not  cure  the  defect,  and  that 
the  statute  bad  vested  the  board  with  no 
authority  to  ask  a  waiver  by  the  voters.  The 
court  says:  "If  the  l)oard  can  lawfully  re- 
serve for  future  determination  by  itself  the 
interest  which  the  bonds  shall  bear,  so  can  it 
reserve  any  or  all  of  the  other  matters  re- 
quired to  be  fixed  in  the  resolution  wblch  it 
submits  for  ratification."  See  authorities 
cited  in  opinion.  It  may  be  added  that  the 
Florida  court  meets  some  of  the  arguments 
In  favor  of  the  validity  of  the  Iwnds  by 
statements  which  are  apropos  in  the  case  at 
bar.  It  held  that  while  the  maximum  rate 
of  Interest  permitted  by  the  resolution  pro- 
viding for  the  bonds  was  so  low  that  it  was 
possible  that  the  form  of  the  resolution  in 
stating  4  per  cent  as  the  limit,  rather  than 
as  a  fixed  rate  of  interest,  did  not  materially 
affect  the  election;  that  this,  however,  was 
mere  matter  of  conjecture,  and  did  not  af- 
fect the  law  of  the  case;  that  the  fixing  of 
a  maximum  rate  Implies  the  possibility  of  is- 
suing the  bonds  at  a  lesser  rate;  and  that, 
in  principle,  there  was  no  difference  between 
that  resolution  and  one  fixing  a  greater  maxi- 
mum rate,  with  a  correspondingly  greater 
range  of  discretion  In  determining  that  to  be 
adopted.  The  bonds  have  not  been  issued. 
The  rights  of  no  purchaser  for  value  are 
Involved,  and  none  of  those  considerations 
exist  which  compet  courts  to  overlook  Irregu- 
larities In  the  endeavor  to  protect  such  pur- 
chasers. 

In  Smith  et  al.  v.  Mayor  &  Council  of  Dul>- 
lin  et  al.,  113  Oa.  833,  39  S.  B.  327,  an  elec- 
tion, at  which  was  submitted  the  question  of 
issuing  bonds  in  the  aggregate  amount  of 
925,000,  not  more  than  $20,000  of  the  amount 
realized  therefrom  to  be  used  for  building  a 
schoolbouse,  and  not  more  than  $5,000  for 
enlarging  the  light  and  water  plant  of  the 
city,  and  the  surplus,  if  any,  to  be  used  In 
such  manner  as  the  mayor  and  council  might 
see  fit,  was  held  invalid  l)ecause  not  meeting 
the  legal  requirement  that  a  notice  of  this 
character  should  specif^  the  amount  of  bonds 
alwut  to  be  issued,  and  for  what  purpose. 
The  court  held  that  the  notice  neither  stated 
the  amount  nor  the  purpose. 

Among  the  reasons  for  requiring  the 
amount  and  other  particulars  to  be  stated  in 
the  resolution  and  notice,  and  particularly 
in  the  notice,  may  be  mentioned  that  it  is 
from  such  notice  and  resolution  that  both 
the  taxpayers  and  voters  derive  their  icnowl- 
edge  that  the  election  is  to  be  held  on  the 
qnestion  of  Issuing  bonds,  and  they  are  en- 
titled to  such  information  on  the  subject,  in- 
cluding a  statement  of  the  amount  of  the 


proposed  Issue,  as  will  enable  them  to  consid- 
er, weigh,  and  discuss  the  merits  of  the  prop- 
osition, and  to  avail  .themselves  of  the  op- 
portunity so  given  to  acquire  information,  not 
only  as  to  the  necessity  of  the  proposed  ex- 
penditure, but  as  to  the  amount  necessary 
to  carry  out  the  plans  of  the  council  and  to 
accomplish  the  purpose  sought  It  Is  perfect- 
ly clear  that  in  the  absence  of  at  least  as 
specific  information  as  is  required  by  the 
statute,  complete  opportunity  is  not  afForded 
those  interested  to  so  Investigate  the  various 
questions  as  to  enable  them  to  vote  intelli- 
gently. Other  authorities  might  be  cited  in 
support  of  our  conclusion,  but  we  deem  it  un- 
necessary to  cite  them.  Our  attention  is  call- 
ed to  only  one  authority  apparently  holding 
to  the  contrary.  In  Railway  Company  v. 
Village,  63  Neb.  624,  88  N.  W.  661,  the  Su- 
preme Court  of  Nebraska  held  that  a  simi- 
lar submission  of  the  statement  of  the 
amount  was  sufficient.  Respondent  seems  to 
rest  Its  case,  as  relates  to  this  point,  on  that 
authority,  but  the  court  of  Nebraska  express- 
ly states  In  the  opinion  that  it  has  been  un- 
able to  find  any  law  of  that  state  requiring  a 
specific  amount  to  be  stated.  We  find  some 
other  authorities  to  the  same  effect,  but  on 
examination  It  appears  that  they  are,  like  the 
Nebrasloi  Case,  based  upon  statutes  which  do 
not  require  the  amount  to  be  stated. 

2.  Our  decision  might  rest  upon  our  conclu- 
sion on  the  preceding  point  but  other  ques- 
tions have  been  raised ;  and,  inasmuch  as  the 
city  of  Fargo  will  likely  hold  another  elec- 
tion on  the  subject,  and  will  not  wish  to 
proceed  in  the  dark  as  to  such  questions,  we 
will  consider  and  pass  upon  them.  We  do 
so  for  the  further  reason  that  the  state  is 
interested  in  having  these  questions  set  at 
rest  The  board  of  university  and  school 
lands  desires  to  purchase  any  bonds  issued 
by  the  city  of  Fargo,  and  is  in  the  market  for 
bonds  Issued  by  other  municipalities  In  this 
state,  and  at  its  request,  through  the  Gover- 
nor, the  Attorney  General  appeared  in  the 
case,  made  an  argument,  and  submitted  a 
brief. 

With  respect  to  the  resolution  and  notice 
calling  for  the  issuance  of  bonds  for  the 
double  purpose,  namely,  waterworks  and  elec- 
tric light  plant,  and  requiring  a  vote  on  the 
two  subjects  in  one,  and  that  this  is  not  sub- 
mitting it  in  such  a  manner  as  to  permit  the 
voter  to  vote  for  or  against  either  proposi- 
ion  Independently  of  the"  other,  "the  authori- 
ties are  in  apparent  conflict  In  view  of  this 
fact,  and  of  the  further  fact  that  the  bonds 
have  not  been  issued,  and  that  it  is  more 
Important  that  a  safe  rule  should  l>e  an- 
novmced  by  this  court  for  the  guidance  of 
municipalities  In  submitting  such  questions 
than  that  either  line  of  authorities  should  be 
followed,  we  feel  at  liberty  to. adopt  that 
rule,  based  upon  those  principles  which,  to 
us,  appear  most  nearly  in  consonance  with 
the  statute,  the  spirit  of  our  institutions,  and 
which  will  best  protect  the  voter  in  the  ez- 


Digitized  by  VjOOQ  l€ 


408 


122  NORTHWESTEBN  BEFOBTEB. 


(N.D. 


ercise  of  bis  franchise  and  the  municipality 
against  possible  fraud.  The  authorities  are 
nearly  unanimous  to  the  effect  that  a  pro- 
ceeding by  which  two  questions  are  submit- 
ted, when  snch  questions  or  their  subjects 
and  purposes  are  not  naturally  related  or 
connected,  Is  Invalid,  and  renders  any  Sec- 
tion at  which  such  questions  bare  been  so 
submitted  invalid.  21  Am.  &  Eng.  Ency.  of 
Law,  47;  State  ex  rel.  City  of  Bethany  ▼. 
Allen,  186  Mo.  678,  86  S.  W.  631;  People  y. 
Ck>unt7  of  Tazewell  et  al.,  22  111.  147;  WU- 
liams  T.  People,  132  III.  674,  24  N.  B.  647; 
Board  of  Supervisors  v.  Miss.  &  Wabash  By. 
Co.,  21  ni.  838;  Village  of  Hempstead  v. 
Seymour  et  al.,  84  Misc.  Bep.  92,  69  N.  T. 
Sup.  462;  Village  of  North  Tonawanda  v. 
Western  Transportation  Co.,  16  Abb.  Prac. 
(N.  S.  N.  T.)  297 ;  City  of  Denver  et  al.  v. 
Hayes  et  al.,  28  Colo.  110,  63  Pac.  311; 
People  V.  Baker,  83  Cal.  149,  23  Pac.  364, 
1112;  McBryde  v.  Olty  of  Montesano  et-  al., 
7  Wash.  69,  34  Pac  669 ;  Cain  et  al.  v.  Smith 
et  al.,  117  Oa.  902,  44  S.  E.  6;  aty  of  Leav- 
enworth et  al.  V.  Wilson,  69  Kan.  74,  76 
Pac.  400;  Truelsen  y.  Mayor  of  Duluth,  61 
Minn.  48,  63  N.  W.  714;  Gray  et  al.  v.  Mount 
et  al.,  45  Iowa,  691;  Elyrla  Gas  &  Water 
Co.  T.  City  of  Elyrla,  67  Ohio  St.  374.  49  N.  E. 
335 ;  Farmers'  Loan  ft  Trust  Co.  v.  City  of 
Sioux  Falls  et  aL  (C.  C.)  181  Fed.  890— are 
all  squarely  to  the  effect  that  the  submission 
of  double  questions  In  such  a  manner  as  to 
require  a  vote  for  or  against  both  is  illegal. 
We  shall  not  take  the  space  to  review  these 
authorities  at  length,  or  the  reasons  which 
the  several  courts  advance  In  support  of 
their  conclusions.  All  the  reasons  given  by 
them  are  applicable  In  the  case  at  bar. 

The  contention  In  the  case  at  bar  Is  that, 
because  the  resolution  and  notice  read,  "and 
for  the  purpose  of  installing  of  an  electric 
light  plant  In  connection  with  the  said  pump- 
lag  station  for  furnishing  street  and  other 
lights  and  power,"  they  present  only  a  single 
question  or  purpose,  and  do  not  come  within 
the  rule  laid  down  in  most  of  the  authorities 
referred  to  above.  It  is  contended  that  the 
two  purposes  or  objects,  namely,  a  pumping 
station  and  electric  light  plant,  are  made 
one  by  the  use  of  the  phrase  "in  connection." 
No  serious  contention  is  made  that  without 
the  use  of  such  words  an  electric  light  plant 
and  waterworks  or  pumping  station  would  be 
separate  and  distinct  from  each  other.  It 
appears  to  us  that  subjects  which  are  so  dif- 
ferent, and  which  have  no  natural  or  neces- 
sary connection,  omnot  be  made  one,  and 
the  law  and  the  reasoning  of  the  courts 
evaded  by  a  play  upon  words.  A  verbal  Join- 
ing does  not  connect  them  In  fact,  when  they 
are  connected  neither  naturally  nor  by  stat- 
ute. It  Is  contended  that  the  dty  will  be  en- 
abled to  economize  in  its  proposed  enterprise 
by  connecting  the  two;  that  they  may  be 
placed  under  the  same  roof;  that  the  same 
boilers  may  be  used  for  pumping  and  furnish- 


ing light;  or  that,  If  electricity  Is  procured 
from  private  parties  and  transmitted  to  the 
plants,  it  may  be  used  for  power  for  the 
pumping  station.  Courts  are  frequently  re- 
quired to  announce  general  principles  and 
rules  in  construing  statutes,  and  for  the  guid- 
ance of  munldpalltles  as  well  as  private  y' 
parties.  When  the  meaning  of  the  statute  Is  w^^ 
doubtful,  so  either  of  two  constmctlons  may 
be  adopted,  It  Is  the  duty  of  courts  to  fol- 
low those  which  to  them  seem  to  be  the  best  ^ 
reasons,  and  those  best  calculated  to  protect 
the  public  against  fraud  and  imposition,  and 
which  win  best  promote  the  general  welfare. 
Any  such  general  rule  may,  In  individual 
cases,  work  hardship,  but  even  so,  this  fact 
does  not  militate  against  the  wisdom  of  well- 
established  rules  of  construction.  We  have 
no  doubt  that  In  the  present  Instance  It 
might  be  a  little  more  convenient  for  the  aa- 
thoritles  of  the  city  of  Fargo  to  lump  the  ex- 
penditures necessary  for  the  construction  of 
the  two  plants,  and  In  some  measure  com- 
bine them,  without  separating  their  esti- 
mates or  determining  in  advance  the  approx- 
imate amount  necessary  to  Invest  In  each 
project,  in  other  words,  if  not  proceeding  by 
guess  Itself,  permitting  the  voters  to  do  so; 
but,  even  if  they  are  built  in  connection,  even 
If  the  words  "In  connection"  are  considered 
to  mean  something  more  than  a  mere  nominal 
connection,  we  see  no  serious  obstacle  In 
the  way  of  determining  beforehand,  at  least 
approximately,  how  mudi  It  is  necessary  to 
provide  for  investing  In  each  separate  en- 
terprise. After  that  is  done,  and  the  ques- 
tions are  submitted  to  the  voters  and  ap- 
proved, there  Is  ample  time  for  the  council 
to  determine  whether  the  projects  shall  be 
united  or  separated,  and  without  any  materi- 
al prejudice  to  the  city  or  its  inhabitants. 
Among  the  reasons  why  both  propositions 
should  not  be  submitted  to  a  single  vote  are 
that  our  whole  election  system,  whether  it 
relates  to  candidates  or  public  improvements 
or  works,  is  built  up  and  founded  on  the 
fundamental  principle  that  every  elector 
shall  be  given  the  opportunity  to  vote  for  or 
against  any  candidate,  or  any  proposition,  in- 
dependent of  and  separate  from  his  vote  for 
or  against  any  other  candidate  or  proposi- 
tion. No  one  would  seriously  argue  that  an 
election  was  fair  which  only  admitted  of  the 
voter  voting  for  or  against  all  the  candidates 
on  any  one  party  ticket,  and  inclosing  all 
the  names  on  one  party  tl(^et  in  a  bracket 
would  not  make  such  a  proceeding  valid.  It 
is  equally  important  that  the  voter  be  givoi 
the  same  opportunity  in  voting  on  questions 
not  relating  to  candidates.  If  two  proposi- 
tions can  be  Joined  in  snch  a  manner  that 
the  voter  mast  vote  for  or  against  both,  it 
admits  of  the  submission  of  a  question  de- 
void of  merit  in  connection  with  one  for 
which  there  is  a  pressing  demand,  and  of  a 
weak  proposition  being  carried  on  the  strength 
of  a  worthy  one. 


Digitized  by 


Google 


N.D.) 


STERN  v.  CITY  OP  PARQO. 


401) 


In  the  case  at  bar  no  question  la  made  as 
to  good  faltb  or  the  merits  of  either  proposi- 
tion. It  Is  no  part  of  the  province  of  this 
conrt  to  determine  the  merits,  bnt  It  can 
readily  be  seen  that  some  voters  may  feel, 
that  an  argent  necessity  exists  for  an  Im- 
proved water  system,  and  little  or  none  for 
an  electric  light  plant,  or  vice  versa.  Some 
voters  may  think  and  feel  that  increasing  the 
indebtedness  for  the  construction  of  a  pump- 
ing plant  and  filtration  system,  which  are 
naturally  connected.  Is  the  only  burden  which 
should  be,  at  the  present,  added  to  those  al- 
ready being  carried  by  the  taxpayer.  We 
have  no  doubt  that  most  of  the  residents  of 
Faigo  feel  that  some  method  of  filtration  and 
Improvements  In  the  water  system  are  al- 
most qnestloDS  of  life  and  death,  but,  if  so, 
this  only  emphasizes  the  wisdom  and  neces- 
sity of  submitting  the  qnestlons  separately. 
The  statute  requires  the  notice  to  state  the 
purpose  for  whldi  the  bonds  are  to  be  Is- 
sued. We  have  no  doubt  that  a  pumping  sta- 
tion and  a  filter  each  constitute  part  of  one 
purpose,  and  an  "electric  light  plant"  an- 
other purpose;  but,  even  if  they  are  not 
tedmlcally  two  purposes,  the  same  reasons 
are  still  applicable,  and  their  force  is  not 
diminished.  The  question  is,  not  one  of 
connecting  by  words,  but.  Identity  of  purpose, 
or  can  one  naturally  be  operated  without  the 
other?  We  are  satisfied  that  the  legislative 
intent  was  to  separate  those  enterprises  or 
purposes.  This  is  partially  apparent  from 
the  fact  that  they  are,  as  we  have  before 
indicated,  authorized  by  separate  and  dis- 
tinct paragraphs  of  the  section  of  the  Code 
defining  the  powers  of  city  councils,  and 
were  enacted  at  different  sessions  of  the 
Legislature,  and  that  the  power  of  the  coun- 
cil relating  to  waterworks  is  far  broader 
than  Its  power  relating  to  lighting.  See 
paragraphs  11  and  75,  S  2678,  Bev.  Codes 
1906.  Most  of  the  authorities  cited  by  re- 
spondent supporting  the  order  of  the  trial 
court  are  based  upon  statutes  which  in  terms 
connect  the  two  subjects,  or  the  courts,  as 
shown  by  their  opinions,  gave  It  little  or  no 
consideration. 

In  Woodbrldge  v.  City,  57  Minn.  256,  50 
N.  W.  206,  the  dty  charter  provided  for  wa- 
ter and  light  bonds,  and  the  question  does 
not  appear  to  have  been  raised  as  to  wheth- 
er they  could  be  combined.  The  same  la  true 
of  State  ex  reL  Caffery,  40  La.  Ann.  1152,  22 
Soutli.  756.  Coleman  v.  Town  (Ala.)  47  South. 
703,  appears  to  be  in  point,  but  an  examina- 
tion discloses  that  the  subjects  are  connected 
hj  statute.  This  Is  conceded  by  respondent 
It  is  therefore  not  an  authority.  In  Elllng- 
wood  et  al.  v.  City  of  Reedsburg,  01  Wis.  181, 
64  N.  W.  886,  it  was  held  that  the  city  had 
the  right  to  issue  bonds  for  water  and  light 
plants,  bnt  the  question  of  combining  was 
not  raised,  and  the  court  was  passing  upon 
a  far  more  comprehensive  statute  than  our 
own.    la  Heilbron  r.  Onthbert,  06  Qa.  812, 


23  S.  B.  206,  we  find  no  discussion  of  the 
point  People  v.  Counts,  80  Oal.  15,  26  Pac. 
612,  Is  not  an  authority.  The  bonds  were  for 
the  construction  of  two  highways,  bnt  they 
both  united  with  another,  and  therefore  the 
question  presented  related  to  a  single  pur- 
pose, that  of  making  a  continuous  highway. 
Linn  V.  aty,  78  Neb.  562,  107  N.  W.  083, 
holds  an  issue  of  bonds  legal  for  building 
separate  engine  houses  and  buying  sites,  but 
this  only  presents  one  purpose.  The  Tona- 
wanda  and  Hempstead  Cases,  supra,  are  di- 
rectly in  point  In  the  former  the  principle 
is  announced  that  there  must  l>e  a  necessary 
connection  between  the  different  objects  to 
make  their  submission  to  a  single  vote  legal. 
In  the  latter  case  the  court  lays  much  em- 
phasis upon  the  fact  that  the  subjects  of 
waterworks  and  lighting  system  were  dealt 
with  in  the  statute  separately,  and  the  court 
says:  "To  join  in  the  resolution  two  or  more 
objects  by  words,  so  that  they  cannot  be  act- 
ed upon  separately,  compels  the  taxpayer  to 
vote  for  or  against  both,  although  he  may  t>e 
in  favor  of  one  and  opposed  to  the  other. 
He  Is  thus  deprived  of  his  freedom  of  choice" 
— and  holds  that  waterworks  and  a  lighting 
system  are  not  related  of  necessity,  and  that 
without  a  separate  specification  of  the 
amount  to  be  applied  to  each,  the  resolution 
submitting  the  question  of  issuing  bonds  for 
waterworks  and  a  lighting  system  was  indefi- 
nite as  to  purpose,  and  at  variance  with  both 
the  letter  and  spirit  of  the  statute,  which  re- 
quired the  ordinance,  or  the  resolution  under 
which  it  was  proposed,  to  contract  a  debt  for 
village '  Improvements,  to  specify  the  par- 
ticular Improvement  to  be  made  and  the 
amount  to  be  raised  therefor. 

In  the  Leavenworth  Case,  supra,  the  Kan- 
sas court  says:  "The  statute  reserves  a 
large  and  clearly  defined  discretion  in  the 
matter  to  the  people  themselves.  No  plan 
involving  the  issuance  of  bonds  can  be  car- 
ried out  without  their  sanction.  Even 
though  the  mayor  and  council  may  contract 
they  cannot  pay  by  means  of  bonds  unless 
the  people  approve.  Every  arrangement  for 
indebtedness  which  the  mayor  and  council 
may  make  involving  dty  l>6nds  must  in- 
clude an  appeal  to  the  ballot  box,  and  must 
fail  if  the  ballot  box  be  found  to  contain  a 
majority  of  adverse  votes.  This  discretion 
of  the  taxpayer  the  mayor  and  council  can- 
not exercise  and  cannot  control.  Since, 
therefore,  no  bonds  may  ht  issued  for  any 
purpose,  or  tor  any  set  of  purposes,  unless 
the  people  be  consulted  and  give  their  con- 
sent every  voter  must  have  a  fair  opportu- 
nity to  register  an  inteiligent  expression  of 
his  will.  This  the  official  ballot  faUed  to 
provide."  In  Cain  t.  Smith,  supra,  the  court 
says:  "If  the  General  Assembly  was  allow- 
ed to  submit  two,  three,  or  more  propositions 
at  one  time  in  connection  with  the  question 
of  Incurring  a  debt  and  require  the  citizen 
to  vote  for  or  against  all,  the  question  of  In- 


Digitized  by  VjOOQ  l€ 


410 


122  NORTHWESTERN  REPORTER. 


(N.  D. 


currlng  a  debt  would  no  longer  be  left  to 
the  will  of  the  qualified  voters,  but  would 
be  remitted  to  the  subtlety  and  ingenuity  of 
those  interested  and  usually  influential  in 
passing  local  legislation,  in  combining  to- 
gether various  matters,  which  might  have 
the  effect  to  bring  about  a  vote  in  favor  of 
bonds  when  it  might  not  have  been  brought 
about  if  the  single  Issue  had  been  submitted 
to  a  vote."  It  might  well  be  inquired  wheth- 
er, in  the  case  at  bar,  the  city  authorities 
have  not  exercised  considerable  of  the  in- 
genuity referred  to  in  so  wording  the  resolu- 
tion and  notice  as  to  appear  to  submit  only 
one  question  or  proposition,  when  In  fact 
submitting  two,  in  such  a  manner  that  the 
voter  has  no  opportunity  to  exercise  his 
Judgment  on  them  independently. 

In  City  of  Denver  et  al.  v.  Hayes  et  al., 
supra,  the  officers  of  the  city  of  Denver  were 
acting  under  a  law  almost  identical  with 
ours,  and  submitted  the  question  of  issuing 
bonds  for  different  purposes  to  a  vote  in  the 
same'  manner.  It  says:  "That  the  action 
of  the  city  council  was  fundamentally  wrong 
we  have  not  the  slightest  doubt.  The  pur- 
pose of  the  framers  of  the  Constitution, 
which  th«y  expressed  in  the  section  under 
consideration,  and  the  object  of  the  General 
Assembly  which  is  embodied  In  the  city 
charter,  were  to  prohibit  municipal  authori- 
ties from  creating  a  debt  for  municipal  pur- 
poses, and  from  Issuing  bonds,  unless  a  ma- 
jority of  the  legal  electors  of  the  city  gave 
their  consent  thereto.  By  the  proceedings 
under  review  no  opportunity  was  given  by 
the  city  council  to  the  electors  to  express 
their  will  as  to  Incurring  a  debt  for  any 
particular  purpose,  and  the  voice  of  the 
electors  has  never  been  heard.  Neither  the 
constitutional  limitation  nor  the  statutory 
provisions  expressly  declare  that  only  one 
purpose  may  be  submitted  at  the  same  elec- 
tion, nor  that,  if  more  than  one  purpose 
may  be  thus  submitted,  each  shall  be  sepa- 
rately stated.  But  the  object  of  neither 
can  be  attained,  and  effect  to  the  language 
In  which  they  are  expressed  cannot  be  giv- 
en, unless  such  purposes  be  separately  stat- 
ed, and  the  amount  proposed  to  be  applied 
to  each  particular  purpose  designated.  This 
must  be  done,  not  only  in  the  ordinance 
which  provides  for  the  submission,  but  in 
the  election  notice;  and  the  ballots  must  be 
so  prepared  that  every  elector  may  declare 
Ills  choice  as  to  each  purpose,  and  the  amount 
proposed  to  be  applied  thereto  must  also  be 
stated.  To  combine  several  distinct  and 
Independent  purposes  in  one  proposition, 
without  specifying  the  amount  which  is  to 
be  devoted  to  each.  Is  a  clear  evasion  of  the 
law,  and,  if  permitted,  would  fritter  away 
the  safeguards  thrown  around  such  transac- 
tions." 

In  Gray  v.  Mounts,  supra.  Is  found  a  very- 
lucid  explanation  of  this  doctrine,  and  the 
court,  among  Its  observations  on  the  subject, 
re, I  iii'i.s:     "The  next  matter  urged  against 


the  validity  of  the  proceedings  is  the  tinloii 
of  two  objects,   and   two  separate   appro- 
priations for  distinct  objects,  in  one  pr<q;K>- 
sftlon,  BO  that  the  elector  could  not  vote  for 
one  and  against  the  other.    We  think  tbls 
presents  a  fatal  objection  to  the  legality  of 
the  proceedings.    The  question  to  be  submit- 
ted to  the  voters  was  not  simply  whether  It 
was  their  will  to  appropriate  the  fund,  but 
there  must  be  an  object  for  the  appropria- 
tion in  order  to  constitute  the  proposition 
to  be  voted  apon.    The  object  is  of  the  es- 
sence of  the  proposition.    This  cannot  be  de- 
nied.   The  appropriation  for  a  given  object 
is   the  proposition  submitted.     If  there  be 
two  objects,  and  a  specified  amount  of  funds 
to  be  devoted  to  each,  It  is  very  plain  that 
there  are  two  propositions  submitted  at  the 
same  election.     If  they  are  submitted   to- 
gether, It  Is  very  clear  that  the  voter  cannot 
vote  for  one  and  against  the  other.    He  must 
vote  against  both,  whereby  he  may  defent 
one,  the  success  of  which  he  desires,  or  be 
must  vote  for  both,  whereby  he  may  cause 
the  success  of  one  which  he  desires  to  be 
defeated.    If  he  falls  to  vote,  he  may  thus 
aid  in  causing  the  defeat  of  bis  favorite 
measure,  and  the  adoption  of  the  one  be 
opposes.    He  has  thus  no  liberty  of  choice. 
The   plan  of  submitting  the  questions,  for 
there  are  two,  resembles  more  the  common 
device   of   an   auctioneer  in   disposing   of 
worthless  goods,  whereby  a  good  article  is 
mingled  with  them  and  made  to  draw  bids, 
or  the  cunning  tricks  of  gamesters  to  Induce 
wagers  of  the  unwary,  rather  than  the  open, 
direct,  and  fair  manner  that  always  should 
prevail  in  elections  by  the  people.    The  very 
letter,  as  well  as  the  spirit,  of  our  election 
laws  condemns  this  plan.    It  has  never  been 
heard  of  that  electors  were,  by  any  plan, 
denied  the  right  of  choosing  one,  and  re- 
jecting another,   candidate  for  oflice,  to  be 
voted  for  at  the  same  election." 

An  examination  of  the  authorities  satisfies 
us  that  the  conflict  Is  more  apparent  than 
real.  We  are,  in  addition  to  the  reasons  al- 
ready referred  to,  impressed  with  some  oth- 
ers which  we  think  serve  to  reinforce  the  con- 
tention that  they  are  separate  jjurposes. 
These  reasons  may  not  be  controlling,  but 
are  nevertheless  of  considerable  force.  Sec- 
tion 130  of  the  Constitution,  supra,  requires 
the  legislative  assembly  to  prohibit  the  diver- 
sion of  money  raised  by  taxation,  loan,  or  as- 
sessment for  any  purpose,  to  any  other  pur- 
pose, except  by  authority  of  law.  The  sub- 
mission of  the  question  in  the  manner  in 
which  it  was  submitted  necessarily  com- 
mingles the  funds  obtained  by  the  loan  con- 
templated, and  in  spirit  violates  this  con- 
stitutional provision,  without  authority  of 
law.  As  seen,  the  Constitution  and  statute 
provide  for  a  debt  limit  for  general  purposes 
of  5  per  cent,  and  an  additional  amount  equal- 
ing 3  per  cent,  of  the  assessed  valuation 
on  a  two-thirds  vote,  making  a  i)os8ible  In- 
debtedness  for  general   purposes  of  8  per 


Digitized  by  VjOOQ  l€ 


S.D.) 


BOARD  OP  EDUCATION  v.  SCHOOL  DIST.  NO.  19. 


411 


«ent.  It  is  also  provided  that  any  city, 
when  authorized  by  a  majority  vote,  may  in- 
crease the  Indebtedness,  not  exceeding  4  per 
cent^  without  regard  to  existing  Indebted- 
ness, tor  the  construction  or  purchase  of 
waterworks,  or  constructing  sewers,  but  for 
no  other  purpose  whatever.  It  may  well  be 
questioned  whether  this  provision  does  not 
contemplate  that  indebtedness  for  water- 
works or  sewers  must  be  Incurred  in  sucn  a 
manner,  at  least  until  the  4  per  cent  limit 
Is  reached,  as  to  leave  the  city  free  to  ex- 
«rclse  Its  right  to  Incur  the  prescribed  in- 
debtedness for  general  purposes  to  the  full 
limit,  Independent  of  waterworks  or  sewer 
Indebtedness.  It  Is  clear  that  the  combina- 
tion of  indebtedness  for  electric  lights  with 
that  for  waterworks  precludes  its  inclusion 
la  the  4  per  cent,  allowed  for  waterworks 
indebtedness,  and  reduces  to  that  extent  the 
power  of  the  city  given  by  the  Constitntlon 
to  Incur  Indebtedness  for  carrying  on  its 
other  aflfalrs,  and  that  a  state  of  facts  may 
readily  arise  whereby,  by  reason  of  doing 
this,  a  city  might  be  seriously  crippled  In  the 
conduct  of  its  affairs  as  a  municipality  and 
agency  of  the  state.  Let  us  suppose  a  city 
with  an  assessed  valuation  of  $1,000,000.  It 
has  the  right  to  Issue  bonds  for  waterworks 
and  sewers  In  the  sum  of  $40,000.  It  has  the 
power  to  issue  bonds  on  the  vote  of  a  major- 
ity of  the  voters,  for  general  city  purposes. 
In  the  amount  of  $50,000.  It  issues  bonds  in 
the  amount  of  $40,000  for  waterworks  and 
electric  lights.  It  thereby  exhausts  its  con- 
stitutional credit  for  general  purposes,  with- 
out a  two-thirds  vote,  within  $10,000.  The 
assessed  valuation  of  the  city  decreases  $200,- 
000.  It  Is  olear  that  the  city  would  then  be 
left  with  no  power,  except  on  a  two-thirds 
vote,  to  make  use  of  any  of  the  credit  with 
which-  the  Constitution  has  clothed  It,  for 
general  purposes,  and  the  $40,000  created  for 
waterworks  purposes  would  still  be  unused, 
and  the  city  might  be  rendered  powerless  to 
provide  for  its  necessary  running  expenses. 
Such  a  condition  is  entirely  within  the  pos- 
sibilities. It  might  issue  waterworks  bonds 
to  the  full  amount  of  5  or  8  per  cent,  in  the 
first  Instance,  and  leave  nothing  for  general 
I>uri)oses  or  emergencies. 

In  People  v.  Oity  Council,  23  Utah,  13,  64 
Pac.  461,  the  Supreme  Court  of  that  state 
held  that,  under  similar  constitutional  pro- 
visions, the  power  to  incur  an  indebtedness 
for  water,  light,  and  sewer  pm-poses  was  ab- 
solutely within  its  own  limits,  and  that  the 
debt  created  by  virtue  of  a  4  per  cent,  pro- 
vision similar  to  ours  for  the  three  purposes 
named  was  additional  to  that  permitted  for 
general  purposes,  and  that  the  purpose  of  the 
framers  of  the  Constitution,  among  others, 
was  to  separate  the  general  debt  power  from 
the  special  debt  power. 

We  think  it  at  least  questionable  and  wor- 


thy of  consideration  whether  the  city  can  is- 
sue bonds  intended  for  waterworks  that  they 
will  necessarily  fall  within,  or  be  included  in, 
the  ordinary  6  or  8  per  cent,  debt  limit  of 
the  Constitution,  and  In  any  event  until  It 
has  exercised  Its  right  and  power  to  Issue 
them  to  the  limit  provided  of  4  per  cent,  for 
the  special  purpose.  This  is  suggested,  but 
as  it  Is  not  necessary  to  determine  it  in  this 
case,  and  as  counsel  saw  fit  to  leave  the  court 
without  enlightenment,,  we  leave  It  undecided. 
The  order  sustaining  the  demurrer  is  revers- 
ed, and  the  district  court  directed  to  enter 
a  decree  In  accordance  with  the  prayer  of  the 
complaint.    All  concur. 

MORGAN,  C.  J.,  not  participating. 


BOARD  OF  EDUCATION  OF  CITY  OP 

YANKTON  V.  SCHOOL  DIST.  NO. 

19,  YANKTON  COUNTY. 

(Supreme  Court  of  South   Dakota.     June  26, 
1908.) 

1.  Schools  and  School  Distbictb  (8  159*)— 

High  Schools— TniTiON— Statutes. 

Laws  1903,  p.  148,  c.  132,  declares  that 
any  pupil  who  shall  successfully  complete  the 
work  of  the  eighth  grade  may  continue  his  work 
up  to  and  including  the  twelfth  grade  by  at- 
tending any  neighboring  graded  school,  ana  the 
tuition  shall  be  paid  by  the  board  of  his  home 
district,  provided  the  home  district  does  not 
provide  Instruction  in  such  higher  grade.  Held, 
that  where  a  pupil  completed  her  eighth  grnde 
in  her  resident  district,  which  did  not  afford 
higher  instruction,  the  fact  that  such  district 
had  never  authorized  instruction  in  higher 
grades  was  sufficient  reason  why  she  should  not 
attend  school  in  her  home  district,  and  author- 
ized her  attendance  at  a  neighboring  high  school 
to  continue  work  up  to  the  twelfth  grade  at  the 
expense  of  her  resident  district.  . 

[Ed.  Note.— For  other  cases,  see  Schools  and 
School  Districts,  Cent  Dig.  S  331;  Dec.  Dig.  { 
159.*] 

2.  Schools  and  School  Districts  (§  I.'jO*) — 
Tuition  —  Quasi    Contbaotual   Oblioa- 

TION. 

Under  Laws  1903,  p.  148,  c  132,  authoriz- 
ing n  niipil  having  comnlpted  the  pishth  grade  to 
attend  school  in  a  neighboring  district  afford- 
ing a  higher  course  of  study  not  afforded  by  her 
home  district  at  the  expense  of  the  latter,  it 
was  no  defense  to  an  action  against  a  resident 
district  to  recover  tuition  for  instruction  fur- 
nished to  a  pupil  under  such  circumstances 
that  there  was  no  contractual  relation  between 
plaintiff  and  defendant  district;  defendant  />e- 
inp  liable  for  such  tuition  under  quasi  contract. 
[Bid.  Note.— For  other  cases,  see  Schools  and 
School  Districts,  Dec.  Dig.  S  159.*] 

Appeal  from  Circuit  Court,  Yankton  Coun- 
ty. 

Action  by  the  Board  of  Education  of  the 
City  of  Yankton  against  School  District  No. 
19,  Yankton  County.  Judgment  for  plalntifT, 
and  defendant  appeals.    Affirmed. 

N.  J.  Cramer,  for  appellant  French  &  Or- 
vis,  for  respondent 

McCOY,  J.  This  Is  a  suit  to  recover  tui- 
tion brought  by  the  board  of  education  of  the 


•For  other  eases  see  same  topic  and  section  NUMBER  in  Dee.  t  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  IC 


412 


122  NORTHWESTERN  REPORTER. 


(S.D, 


city  of  Xankton  against  school  District  No. 
19  of  Yankton  county.  Edna  Slmonson,  a 
minor,  residing  with  her  parents  in  said 
school  district  No.  19,  havins  snccessfally  com- 
pleted the  work  of  the  etghth  grade  as  es- 
tabllahed  in  the  state  coarse  of  study,  at- 
tended the  high  school  of  the  dty  of  Yank- 
ton for  the  puriXMW  of  continuing  her  school 
work  np  to  the  twelfth  grade.  It  appears 
that  said  school  district  No.  19  did  not  pro- 
vide higher  instmction  above  the  said  eighth 
grade,  and  that  the  high  school  of  the  city 
of  Yankton  maintained  a  higher  course  of 
Btndy  consisting  of  a  four  years'  course, 
known  as  freshman,  sophomore,  junior,  and 
senior  years,  and  that  the  junior  year  of 
said  course  corresponds  to  the  eleventh  grade 
in  the  state  coarse  of  study,  and  that  dur- 
ing the  school  year  of  1905-06  the  said  Ed- 
na Slmonson  attended  said  Yankton  high 
school  as  a  junior,  and  received  instruction 
in  said  eleventh  grade ;  that  the  said  Yank- 
ton high  school  was  the  nearest  neighboring 
school  In  which  the  said  higher  course  of 
study  was  maintained  within  the  said  county 
of  Yankton;  that  the  said  board  of  educa- 
tion daring  the  school  year  1905-06  estab- 
lished a  rule  that  all  pupils  attending  said 
hig^  school  whose  place  of  residence  was  out- 
side the  dty  of  Yankton  should  pay  a  tuition 
of  60  cents  per  week.  This  suit  was  brought 
to  recover  for  86  weeks'  tuition  at  the  rate 
of  60  cents  per  week.  The  case  was  tried  to 
the  court  without  a  Jury,  and  findings  and 
judgment  were  in  favor  of  plaintiff,  the  board 
of  education  of  the  dty  of  Yankton.  The  on- 
ly question  for  consideration  Is  whether  as  a 
matter  of  law  the  plaintiff  was  entitled  to  re- 
cover. 

Chapter  182,  p.  148,  Se88..Iiaws  1908,  among 
other  things,  provides  as  follows :  "Any  pupil 
who  shall  successfully  complete  the  work  of 
the  eighth  grade,  as  established  in  the  state 
course  of  study,  is  privileged  to  continue  his 
work  up  to  and  induding  the  twelfth  grade, 
by  attending  any  neighboring  graded  school 
famishing  a  higher  coarse  of  study,  and  the 
tuition  charge  therefor,  shall  be  paid  by  the 
board  of  his  home  district  Provided  his 
home  district  does  not  provide  instruction  in 
such  higher  grades."  It  is  contended  by  de- 
fendant that,  because  the  electors  of  said  dis- 
trict No.  19  had  never  authorized  by  vote  In- 
struction to  be  given  in  said  higher  grades 
above  the  eighth,  plalntltt  should  not  recover, 
but  we  are  of  the  opinion  that  this  fact  would 
be  a  suffident  reason  why  the  pupil  would  be 
excused  from  attending  school  In  his  home 
district,  and  would  furnish  him  grounds  for 
attending  some  neighboring  school  where  the 
higher  grades  were  maintained.  The  fact  that 
no  provision  for  the  higher  grades  had  been 
made  in  the  home  district  would  furnish 
groimd  for  attending  the  neighboring  school 
within  the  same  county,  regardless  of  what 


caused  such  failure  to  so  provide  In  the  bom» 
district 

It  is  also  contended  by  defendant  that 
there  is  no  contractual  relation  existing  be- 
tween plaintiff  and  defendant  snffldent  to- 
support  a  cause  of  action  for  the  recovery  or 
the  tuition  In  question.  In  this  contention 
we  also  believe  defendant  to  be  In  error.  It 
is  not  necessary  that  there  should  be  any 
contractual  relation  between  the  parties  un- 
der the  circumstances  of  this  case.  The  re- 
lation here  Is  "quasi"  contractual  only,  being- 
an  obligation  Imposed  by  law  without  re- 
gard to  the  intent  or  assent  of  the  party 
bound  thereby,  but  which  is  allowed  to  be- 
enforced  by  an  action  ex  contractu,  and  in- 
cludes all  cases  in  which  an  obligation  to  pay 
money  is  imposed  by  a  statute.  The  obliga- 
tion to  pay  arises  by  virtue  of  the  statute,  al- 
though there  is  no  intention  or  agreement  of 
the  parties  to  create  a  contract  9  Cyc  243 ; 
Milford  V.  Commonwealth,  14i  llass.  fU,  10- 
N.  B.  616;  2  Current  Law,  286. 

Finding  no  error  in  the  record,  the  judg- 
ment of  the  circuit  court  is  affirmed. 

SMITH,  J.,  taking  no  part  in  the  decision.. 


INTERNATIONAL   HARVESTER    CO.    OP 
AMERICA  V.   HAYWORTH. 

(Supreme  Court  of  South  Dakota.     Jane  26> 
1909.) 

1.  Sales  (f  809*)— Refusai.  of  Onsa  or  Di- 
LiVEBT— Action  »ob  Bbeaoh. 

Under  Rev.  Civ.  Code,  i  1169,  providing 
that  the  person  offering  a  thing,  other  than 
money,  by  way  of  penormance,  must,  if  he- 
means  to  treat  it  as  belonging  to  the  creditor,, 
retain  it  as  a  depositary  for  hire  till  the. cred- 
itor accepts  it,  or  till  he  has  given  reasonable- 
notice  to  the  creditor  that  he  will  retain  it 
no  longer,  and  section  1164,  providing  that, 
when  a  debtor  is  entitled  to  performance  of  a 
condition  precedent  or  concurrent  with  per- 
formance on  his  part,  he  may  make  his  offer 
depend  on  the  due  performance  of  such  condi- 
tion, it  Is  only  when  a  seller  unconditionally 
offers  the  property  to  the  buyer  that,  it  being 
refused,  the  seller  may,  retaining  It  for  tbe- 
bnyer,  sue  for  the  price;  and, 'the  offer  being 
on  condition  of  the  buyer  then  paying,  or  giv- 
ing notes,  for  the  property,  in  accordance  with 
the  contract,  the  seller,  on  the  buyer  refosing 
to  accept  and  perform,  can  sue  only  for  dam- 
ages for  breach  of  the  contract. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent 
Dig.  I  1083;    Dec  Dig.  i  869.»] 

2.  Sales  A  871*)— Onxs  or  Dklivxbt— Skpa- 

BATINO  PbOPEBTT. 

Under  Rev.  Civ.  Code,  }  116S,  providing 
that  a  thing,  when  offered  by  way  of  perform- 
ance, most  not  be  mixed  with  other  thinas 
from  which  it  cannot  be  separated  immediately 
and  without  difficulty,  where  defendant  con- 
tracted to  bay  a  machine  of  plaintiff,  to  be  con- 
signed to  the  care  of  plaintiff's  agent  A.,  and 
on  receipt  of  the  machine  to  pay,  or  give  notes, 
therefor,  it  was  necessary,  in  order  to  constitute 
a  valid  offer  of  delivery  to  defendant,  on  re- 
fusal of  which  he  could  be  sued  for  breach  of 
the  contract,  that  It  be  separated  and  set  apart 


•For  other  eases  sm  same  toplo  and  secUoa  NUlf  BBR  in  Dec.  *  Am.  Digs.  IMT  to  date,  *  Reportar  ladexei. 


Digitized  by  LjOOQ  l€ 


8.D.) 


INTERNATIONAL  HAKVE8TBE  CO.  v.  HAYWORTH. 


413 


from  the  other  machinerr  with  which  it  wa« 
mixed  when  received  by  it 

[Ed.  Note.— For  other  caiea,  see  Sales,  Cent. 
Dig.  {  1087;    Dec.  Dig.  {  S71.«] 

Appeal  from  Circuit  Court,  Claris  County- 
Action    by    the    International    Harvester 

C<Hnpany  of  America  against  J.  H.  Hayworth. 

From  a  Judgment  for  platntltt  and  from  an 

order  denying  a  new  trial,  defendant  appeals. 

Reversed. 

Hanten  ft  Loncks,  for  appellant     S.  A. 

Keenan,  for  respcmdent 

CORSON,  J.  This  is  an  appeal  by  the  de- 
fendant from  a  judgment  entered  upon  a  ver- 
dict of  the  jury  and  order>denying  a  new  tri- 
al. The  action  was  instituted  by  the  plain- 
tiff, a  corporation,  to  recover  of  the  defend- 
ant the  contract  price  of  certain  farm  ma- 
chinery alleged  to  have  been  sold  and  de- 
livered by  the  plaintiff  to  the  defendant 
The  complaint  is  liased  upon  a  contract  of 
sale,  the  material  part  of  which  is  as  fol- 
lows: "Gentlemen:  The  undersigned  hereby 
purchases  of  you,  to  be  shipped  in  time  for 
the  coming  harvest,  one  of  your  Deering  7  ft 
Ideal  H.  ft  B.  with  tongue  trucks  to  be  con- 
signed to  the  care  of  Chas.  Aldrich,  agent  at 
Henry,  S.  D.  Upon  receipt  of  the  machine, 
the  undersigned  agrees  to  pay  you  $135.00 
cash  or  execute  and  deliver  to  yon  approved 
notes  as  follows:  .148.00  payable  on  the 
1st  day  of  October,  1904 ;  $4a00  payable  on 
the  Ist  day  of  October,  1905 ;  $49.00  payable 
on  the  iBt  day  of  October,  1906.  Said  notes  to 
draw  Interest  at  the  rate  of  8  per  cent  per 
annnm  from  September  1,  1904,  until  maturi- 
ty, and  10  per  cent  per  annum  from  maturi- 
ty until  paid."  The  plaintiff  alleges:  That 
It  complied  with  the  terms  and  conditions  of 
said  contract ;  that  in  pursuance  of  said  or- 
der, and  relying  entirely  thereon,  It,  on  or 
about  June  15,  1904,  duly  shipped  and  con- 
signed to  said  Charles  Aldrich,  for  said  de- 
fendant, the  said  machinery;  that  on  or 
about  July  1,  1904,  said  plaintiff,  by  and 
ttarougb  said  Charles  Aldrich,  duly  offered 
to  deliver  to  said  defendant  said  machine, 
and  demanded  that  he  pay  said  sum  of  $135, 
or  execute  and  deliver  said  promissory  notes ; 
that  said  defendant  refused  to  execute  and 
deliver  said  promissory  notes,  or  to  make 
said  payment  and  still  refuses  so  to  do; 
that  said  machine  is  still  at  Henry,  S.  D., 
the  property  of  said  defendant 

The  defendant  in  his  answer  denies  any 
Icnowledge  or  information  and  belief  as  to 
plaintiff's  shipment  of  the  machinery  in  con- 
troversy; denies  that  plaintiff  offered  to  de- 
liver to  said  defendant  the  said  machine; 
denies  that  said  plaintiff  demanded  that  said 
defendant  pay  for  the  said  machine  the  sum 
of  $135 ;  denies  that  said  plaintiff  demanded 
of  said  defendant  to  execute  and  deliver  any 
promissory  notes;   denies  that  said  machine 


described  in  paragraph  2  of  plaintiff's  com- 
plaint is  still  at  Henry,  S.  D.;  doiles  that 
said  machine  Is  the  property  of  the  defend- 
ant; denies  that  said  plaintiff  has  perform- 
ed the  conditions  of  said  order ;  alleges  that 
said  plaintiff  never  offered  to  deliver  said 
machine  to  the  defendant;  alleges  that  said 
defendant  canceled  said  order  on  or  about 
July  10,  1904,  and  refused  to  accept  the  said 
machine,  and  so  notified  the  plaintiff  cor- 
poration; alleges  that  said  plaintiff  corpora- 
tion never  accepted  said  defendant's  order, 
or  at  any  time  gave  said  defendant  notice  of 
the  acceptance  thereof;  alleges  that  said 
machine  was  not  in  the  possession  of  the 
said  plaintiff  corporation  at  the  business 
place  of  Charles  Aldrich,  at  Henry,  S.  D.,  at 
the  commencement  of  this  action;  alleges 
that  at  the  time  of  the  giving  of  the  order 
described  in  plaintiff's  complaint,  and  after 
the  signing  of  the  same  by  the  defendant,  be- 
fore delivering  the  same,  he  canceled  said 
contract 

The  evidence  as  to  the  delivery  of  said  ma- 
chlnery  on  the  part  of  the  plaintiff  was  as 
follows:  Charles  Aldrich,  being  called  on 
behalf  of  the  plaintiff,  testified  ^s  follows: 
"My  name  Is  Charles  Aldrich.  My  business 
is  farm  machinery — harvesters  and  binders, 
and  the  like.  I  have  been  agent  for  the  In- 
ternational Harvester  Company  of  America 
during  the  past  year.  •  •  •  Q.  You  may 
state  whether  or  not,  Mr.  Aldrich,  yon  re- 
ceived the  machine  described  in  l^re  from 
the  International  Harvester  Company,  the 
plaintiff  In  this  action.  A.  I  did.  That  was 
before  the  harvesting  season  of  1894  opened. 
I  notified  Mr.  Hayworth,  the  defendant  in 
this  action,  after  the  machine  arrived,  that  I 
bad  the  machine  there  for  him.  He  did  not 
execute  the  notes  described  in  here.  He  did 
not  do  anything  in  regard  to  the  matter.  He 
did  not  take  the  machine.  He  refused  to 
take  it"  On  cross-examination  he  testified 
as  follows:  "This  particular  machine  was 
shipped  to  J.  H.  Hayworth  in  my  care.  It 
was  not  tagged  to  him.  I  said  that  it  was 
not  tagged.  It  was  not  marked  in  any  way 
showing  that  it  had  been  shipped  to  J.  H. 
Hayworth.  There  was  a  car  load  of  mixed 
machinery.  I  think  there  were — I  could  not 
say  now  just  how  many  there  were.  There 
were  four  or  five  seven-foots  and  two  six- 
foots  and  some  twelve-foots  and  one  eight- 
foot.  There  were  not  tank  trucks  on  all  of 
them.  There  was  one  in  the  car  load  with 
tank  trucks.  I  think  there  was  not  more 
than  one.  I  think  there  was  one.  They  were 
all  set  up.  *  •  *  Prior  to  the  commence- 
ment of  this  action,  I  never  had  any  machine 
down  at  Henry,  S.  D.,.  ticketed,  marked,  or 
labeled  J.  H.  Hayworth."  He  was  then  ask- 
ed the  following  question:  "Have  you  at  this 
time  at  Hairy,  S.  D.,  a  machine  of  this  kind 
in  your  warehouse  at  Henry,  S.  D.?"    To 


•For  other  case*  -lee  same  topic  and  secUoD  NUMBER  in  Dec.  &  Am.  Diss.  1907  to  date,  A  Reportar  Indexes 


Digitized  by  VjOOQ  l€ 


ill 


122  KOBTHWESTEBN  REPOBXEB. 


03.  D. 


which  question  the  plaintiff  objected  as  in- 
coiApetent  and  immaterial  and  Inadmissible 
under  the  pleadings,  which  objection  was 
sustained  by  the  court,  and  the  defendant 
excepted.  "Q.  You  did  not  ask  him  for  any 
cash,  any  notes,  or  settlement?"  This  ques- 
tion was  objected  to  by  the  plaintiff  as  in- 
competent, irrelevant,  and  immaterial  and 
not  proper  cross-examination.  The  court  sus- 
tained the  objection,  and  the  defendant  ex- 
cepted. On  re-examinatlon  of  Mr.  Aldrlch, 
he  testified  tlint  he  had  the  machine  in  his 
warehouse  at  Henry.  He  was  then  asked  the 
following  question:  "Q.  Is  It  there  subject 
to  his  paying  the  price  and  taking  possession 
of  it  at  any  time  that  he  wants  to?  A.  It  Is. 
Mr.  Hayworth  has  never  asked  me  for  that 
machine.  It  is  over  there  at  my  warehouse. 
He  can  Tiave  it  at  any  time  that  he  comes  for 
it,  on  payment  of  the  price."  Again  he  testi- 
fied, in  si)eaking  of  his  visit  to  the  defend- 
ant with  Mr.  Glllen,  as  follows:  "We  asked 
for  a  settlement,  not  for  any  cash.  We  ask- 
ed for  a  settlement  for  the  machine,  that 
would  have  been  cash  or  notes.  I  did  not 
have  the  machine  with  me.  We  did  not  offer 
to  turn  over  the  machine  at  that  time. 
•  *  •  Our  order  stated  that  upon  the  re- 
ceipt of  the  machinery  he  was  to  pay  me 
either  cash  or  to  give  roe  approved  notes. 
Q.  Upon  receipt  of  the  machinery,  that  would 
mean  when  the  machine  was  not  In  your  pos- 
session, but  In  his?  A.  No,  sir;  that  Is  not 
what  is  meant.  We  always  take  a  settle- 
ment before  the  machinery  is  delivered."  It 
will  thus  be  seen,  from  the  testimony  of  the 
agent,  that  there  was  no  unconditional  offer 
to  deliver  the  machinery,  and  that  he  did  not 
intend  to  deliver  it  until  the  defendant  ei- 
ther paid  the  contract  price  in  cash,  or  exe- 
cuted approved  notes. 

It  is  contended  by  the  appellant:  (1)  That 
the  contract  was  not  a  binding  contract  up- 
on the  defendant,  for  the  reason  that  he  had 
never  been  notified  that  the  plaintiff  had  ac- 
cepted the  contract.  (2)  That  the  plaintiff 
was  not  entitled  to  recover,  in  this  form  of 
action,  for  the  reason  that  no  delivery  or  of- 
fer was  made.  In  accordance  with  the  provi- 
sions of  our  Code,  as  the  machinery  was  not 
consigned  to  or  In  the  name  of  the  defendant, 
and  had  never  been  separated  from  the  other 
machinery  received  at  that  time  by  plalntlfTs 
agent,  and  never  deposited  as  provided  by  the 
l>rovlslons  of  our  Civil  Code,  and  could  not 
have  been  delivered  by  the  agent  except  upon 
imyment  by  cash  or  notes.  (3)  That,  If  the 
|)lalntiff  had  any  cause  of  action.  It  was  an 
action  for  a  breach  of  the  contract  to  receive 
the  machinery,  and  not  an  action  for  the  val- 
ue of  the  machinery,  as  there  had  been  no 
actual  delivery  or  offer  of  the  property  to  the 
defendant.  (4)  That,  to  entitle  the  plaintiff 
to  maintain  an  action  as  for  the  absolute  sale 
of  the  property,  there  must  be  an  uncondi- 
tional delivery  or  an  unconditional  offer  of 
delivery,  and  that,  in  this  case,  by  the  terms 


of  the  contract,  before  a  delivery  could  be 
made,  the  defendant  was  required  either  to 
pay  for  the  property  in  cash,  or  execute  notes 
acceptable  to  the  plaintiff  for  the  same,  and 
that  the  court  erred  in  excluding  certain  evi- 
dence offered  by  the  defendant,  and  which 
rulings  of  the  court  were  excepted  to  by  the 
defendant 

It  is  insisted  on  the  part  of  the  plaintiff 
that  when  it  shipped  machinery  to  the  care 
of  its  agent  at  Henry,  and  the  same  was  of- 
fered to  the  defendant  and  refused,  the  title 
of  the  property  passed  to  the  defendant,  and 
he  became  liable  for  the  value  of  the  same  In 
this  action.  It  further  Insists  that,  as  the 
defendant  refused  to  accept  the  machinery, 
it  was  not  necessary  for  the  plaintiff  to  ten- 
der the  identical  machinery  to  him;  but  if 
its  agent  In  whose  care  the  machinery  was 
8blpi)ed  bad  the  same  at  Henry,  and  the  de- 
fendant was  notified  that  the  same  was  ready 
there  for  him,  there  was  such  a  sale  and  de- 
livery of  the  machinery  as  entitled  the  plain- 
tiff to  recover  the  contract  price  In  this  ac- 
tion, notwithstanding  the  machinery  was  not 
consigned  directly  to  the  defendant,  or  was 
not  so  marked  that  It  could  be  identified  as 
the  machinery  sold  to  him.  It  will  be  no- 
ticed, by  the.  terms  of  the  contract  or  order, 
that,  upon  receipt  of  the  machine,  the  defend- 
ant agreed  to  pay  $133  cash,  or  execute  and 
deliver  approved  notes  for  the  same,  and  that 
plaintiff's  agent  testified  that  he  would  not 
have  delivered  the  machine  unless  the  condi- 
tions had  been  complied  with  by  the  defend- 
ant 

Section  1169  of  the  Revised  Civil  Code  pro- 
vides: "The  person  offering  a  thing,  other 
than  money,  by  way  of  performance,  must, 
if  he  means  to  treat  it  as  belonging  to  the 
creditor,  retain  it  as  a  depositary  for  hire 
until  the  creditor  accepts  It  or  until  he  has 
given  reasonable  notice  to  the  creditor  that 
he  will  retain  It  no  longer ;  and  If,  with  rea- 
sonable diligence,  he  can  find  a  suitable  de- 
positary therefor,  until  he  has  deposited  It 
with  such  a  person."  Section  1163  provides : 
"A  thing,  when  offered  by  way  of  perform- 
ance, must  not  be  mixed  with  other  things 
from  which  it  cannot  be  separated  immedi- 
ately and  without  difficulty."  And  section 
1164  provides:  "When  a  debtor  is  entitled  to 
the  performance  of  a  condition  precedent  to, 
or  concurrent  with,  performance  on  his  part, 
he  may  make  his  offer  to  depend  upon  the 
due  performance  of  such  condition."  Con- 
struing these  sections  together,  It  is  quite 
clear  that  two  classes  of  cases  are  provided 
for:  One  where  the  property  is  uncondition- 
ally offered  to  the  vendee  with  the  Intention 
of  vesting  the  title  absolutely  in  the  vendee, 
In  which  case.  If  the  offer  Is  properly  made, 
and  the  property  set  apart  for  the  vendee,  the 
vendor  may  recover  the  contract  price,  re- 
taining possession  of  the  property  after  such 
offer  of  performance  as  trustee  or  bailee  of 
the  vendee.    In  the  second  case,  where  there 


Digitized  by  VjOOQ  l€ 


8.  D.) 


LNTKRNATIONAL  HARVESTER  CO.  v,  HAYWORTH. 


415 


18  to  be  a  delivery  opon  the  compHance  of  the 
rendee  with  certain  conditions  as  to  the  pay- 
ment or  securing  the  payment  for  the  prop- 
erty, in  which  case  the  title  remains  in  the 
vendor,  and  be  can  only  maintain  an  action 
for  damages  for  breach  of  the  contract  on 
falling  to  accept  the  property  and  complying 
with  the  conditions  prescribed  in  the  contract 
The  learned  circuit  court  seems  to  have 
overlooked  the  distinction  in  these  two  class- 
es of  cases,  and  took  the  view  that,  as  the 
machine  contracted  to  be  purchased  by  the 
defendant  was  shipped  to  its  agent  at  Henry, 
to  be  delivered  to  the  defendant  upon  pay- 
ment of  the  contract  price,  in  cash  or  ap- 
proved notes,  and  an  offer  made  to  deliver 
the  property  upon  the  defendant  complying 
with  the  conditions  of  the  contract,  the  plaln- 
tlflf  was  entitled  to  recover  the  contract  price 
in  this  action,  and  the  defendant,  having  re- 
fused to  accept  the  same,  was  liable  for  the 
contract  price  to  the  plaintiff,  under  the  de- 
cision of  this  court  in  the  case  of  Dowagiac 
Mfg.  Co.  V.  Higinbotham,  16  S.  D.  647,  01 
X.  W.  330;  but  the  facts  in  that  case  were 
entirely  different  from  those  In  the  case  at 
bar.  In  that  case  it  was  alleged  in  the  com- 
plaint: "That  on  or  about  the  25th  day  of 
October,  1898,  the  plaintiff  and  defendant  at 
Dowagiac,  in  the  state  of  Michigan,  entered 
Into  a  contract,  whereby  the  plaintiff  agreed 
to  sell,  and  the  defendant  agreed  to  purchase, 
certain  farm  machinery,  •  •  *  same  to 
be  delivered  by  the  plaintiff  free  on  board 
cars  at  Dowagiac  in  the  state  of  Michigan,  to 
tie  shipped  on  or  before  February,  1899.  and 
the  defendant  agreed  to  settle  for  the  same 
May  1,  1899,  by  note  payable  on  or  before 
November  10,  1899."  This  allegation  of  the 
complaint  was  admitted  by  the  answer.  It 
will  be  observed  that  in  that  case  the  settle- 
ment for  the  machinery  was  not  to  be  made 
until  several  months  subsequent  to  the  ship- 
ment of  the  machinery,  and  the  plaintiff  ship- 
ped the  machinery  at  Dowagiac,  to  the  de- 
fendant, directly  to  his  home  in  CentervlUe, 
S.  D.,  and  paid  the  freight  thereon  (which 
the  company  was  not  required  to  do  by  the 
terms  of  the  contract,  as  that  provided  that 
!t  should  be  shipped  free  on  board  cars  at 
Dowagiac).  The  delivery  of  the  machinery  at 
Dowagiac  to  the  railroad  company,  consigned 
directly  to  the  defendant,  and  the  freight  pre- 
paid, constituted  an  unconditional  delivery  of 
the  property  to  the  defendant;    there  being 


in  that  case  no  stipulation  as  to  the  payment 
of  any  portion  of  the  price  of  the  property  or 
the  execution  of  any  notes  or  other  securities 
prior  to  Its  receipt  by  him.  This  court  there- 
fore held  that  there  was  a  sale  and  uncondi- 
tional delivery  of  the  property  to  the  defend- 
ant resting  the  title  in  him,  and  that  the 
plaintiff  was  entitled  to  recover  the  contract 
price  of  the  machinery.  That  case  therefore 
came  clearly  within  the  provisions  of  section 
11C9,  in  which  the  title  of  the  property  pass- 
ed to  the  defendant,  and  thereafter  the  plain- 
tiff retained  possession  of  the  same,  only  as 
trustee  or  bailee  for  the  benefit  of  the  defend- 
ant, and  was  entitled  to  recover  the  contract 
price  of  the  property. 

But,  as  we  have  seen  in  the  case  at  bar, 
there  was  no  unconditional  offer  to  deliver 
the  property  to  the  defendant;  but  it  is 
claimed  by  the  plaintiff  that  there  was  an  of- 
fer to  deliver  upon  the  defendant  complying 
with  the  terms  of  the  contract,  by  paying  the 
price  stipulated,  either  in  cash  or  in  approv- 
ed notes,  and  the  machine  properly  segregat- 
ed from  the  other  machinery.  The  title  there- 
fore to  the  property  continued  to  remain  in 
the  plaintiff,  and  the  defendant  was  entitled, 
upon  cross-examination,  to  a  full  disclosure 
of  all  the  facts  attending  the  offer  to  deliver 
the  property  to  the  defendant,  and  the  court 
was  clearly  in  error  in  sustaining  plaintifTs 
objections  to  the  questions  propounded  to 
the  plaintiffs  agent  as  to  what  acts  were 
done  by  him  in  the  way  of  setting  apart  the 
machine  and  separating  it  from  the  other  ma- 
chinery shipped  to  him  at  the  same  time,  and 
as  to  having  the  same  on  hand  at  the  time 
of  the  trial,  for  in  either  case,  to  constitute 
a  valid  offer  of  delivery,  the  property  must 
be  separated  and  set  apart  from  the  other 
machinery  with  which  it  was  mixed  at  the 
time  of  its  receipt,  as  testified  to  by  the  plain- 
tiff's agent  Hamilton  v.  Ganyard,  34  Barb. 
(N.  Y.)  204;  Smith  v.  Loomls,  7  Conn.  110; 
McCormick  Harvesting  Mach.  Co.  v.  Balfany, 
78  Minn.  370,  81  N.  W.  10,  79  Am.  St  Uep. 
303. 

For  the  error  of  the  court  in  sustaining 
plaintiff's  objections  to  the  questions  pro- 
pounded to  the  witness  Aldrlch,  hereinbefore 
referred  to,  the  Judgment  of  the  circuit  court 
and  order  denying  a  new  trial  are  reversed. 

WHITIXG,  J.,  taking  no  part  In  the  deci- 
sion. 


Digitized  by 


Google 


416 


122  NOBTHWBSTERN  BEPOBTEB. 


(S.IX 


EAMMANN  r.  BABTON  et  aL 

(Sapreme  Court  of  Sonth  Dakota.     June  26, 
IQOe.) 

1.  Judgmkut  (i  723«)— Em  Adjudioata— Es- 
toppel. 

In  the  absence  of  proof  that  a  particnlar 
Issne  waa  actually  detennined  in  arriving  at  a 
former  judgment,  it  ia  conclnsive  only  as  to 
those  facts  without  the  existence  and  proof  of 
which  it  could  not  have  l>een  rendered. 

[Ed.  Note.— For  other  cases,  see  Judgment, 
Cent.  Dig.  I  1255 ;  Dec.  Dig.  |  726.*] 

2.  JVDQusm  (I  956*)— Recitals— Etidbnob. 

Recitals  in  a  Judgment  are  not  conclusive 
nor  evidence  of  adjudication. 

[Ed.  Note.— For  other  cases,  see  Judgment, 
Cent.  Dig.  |  1823;    Dec.  Dig.  f  956.*] 

5.  Judgment  (f  731*)  —  Corolubiterebb  — 

MATrEBB  COROLUOED. 

Where,  in  an  action  against  a  mortgagee 
to  quiet  title,  plaintiff  in  hii  reply  set  up  that 
the  limitations  had  run  against  the  mortgage, 
but  there  was  no  evidence  that  the  statute  was 
considered,  a  judment  that  plaintitTs  .title 
was  subject  to  defendant's  mortgage  lien  was 
not  tea  adjudicata  on  the  question  of  the  stat- 
ute in  a  subsequent  action  by  the  mortgagee  to 
foreclose   the   mortgage. 

[Eld.  Note.— For  other  cases,  see  Judgment, 
Cent.  Dig.  i  1269 ;  Dec.  Dig.  |  731.*] 

4.  Limitation  or  Aotiorb  <t  195*)— Tolliro 

OF  Statute— BuBDER  or  Pboof. 

The  burden  is  on  one  relying  on  the  tolling 
of  the  statute  of  limitations  by  the  absence  of 
the  adverse  party  from  the  state  to  show  the 
facts, 

[Ed.  Note.— For  other  cases,  see  Limitation  of 
Actions,  Cent.  Dig.  |  712;   Dec.  Dig.  |  195.*] 

6,  Limitation  or  Actions  (i  25*)  — Limita- 
tion Applicable. 

A  mortgage  not  under  seal  is  barred  in  10 
years  unless  the  statute  is  in  some  manner  tolled. 
[£>].  Note.— For  other  cases,  see  Limitation  of 
Actions,  Dec  Dig.  i  25.*] 

6.  JUDCMBNT  (I  682*)— Ck>NCLUSIVENE8S— PEB- 

80NS  Concluded. 

Where,  in  an  action  by  the  grantee  of  a 
mortgagor  against  the  mortcagee  to  quiet  title, 
the  mortgagor  was  not  made  a  pari?,  a  judg- 
ment that  the  mortgage  was  a  valid  lien  was 
not  res  adjudicata  as  to  the  mortgagor  in  a 
subsequent  action  to  foreclose  the  mortgage, 
since  he  did  not  stand  in  privity  to  his  grantee. 

[Ed,  J^ote.— For  other  cases,  see  Judgment, 
Cent.  Dig.  i  1205 ;   Dec.  Dig.  |  682.*] 

Appeal  from  Circuit  Court,  Spink  County. 

Action  by  Frederick  W.  Kauimann  against 
Lot  Lee  Barton  and  another.  Judgment  for 
plaintiff,  and  defendants  appeal.  Reversed, 
and  new  trial  ordered. 

W.  F.  Corrlgan  and  Taubman,  Williamson 
&  Herreid,  for  appellants.  D.  W.  Folndezter, 
for  respondent 

McCOT,  J.  This  is  an  action  commenced 
by  plaintiff,  F.  W.  Kammann,  against  the 
defendants.  Lot  Lee  Barton  and  H.  F.  Hun- 
ter, to  foreclose  a  real  estate  mortgage.  The 
complaint  is  as  follows:  "Plaintiff  alleges: 
That  on  June  13,  1889,  defendant  ILiot  Lee 
Barton  was  indebted  to  plaintiff  In  the  sum 
of  $237,  evidenced  by  two  promissory  notes 


dated  Miarch  6,  1889,  one  for  |228,  one  for  $9. 
both  due  September  6,  1889,  bearing  interest 
at  12  per  cent  per  annum  after  maturity, 
and  on  Jtme  13,  1889,  dtfendant  Barton,  to 
secure  said  notes,  made  his  mortgage  deed, 
whenby  he  sold  and  cony^ed  to  plalntUC  the 
S.  W.  ^  of  sec.  32-120-63,  to  be  void  upon 
the  payment  of  said  notes.  Tliat  said  mort- 
gage contained  a  power  of  sale  In  the  nsnal 
form,  and  was  recorded.  That  the  plaintiff 
is  stUI  the  owner  of  said  mortgage,  and  the 
same  is  due  and  mpaid.  That  plaintiff  com- 
mmced  foreclosure  by  advertisement,  but  has 
been  compelled  to  foreclose  by  action.  That 
in  August,  1905,  defendant  Hunter  com- 
mence an  action  In  this  court  against  this 
plaintiff  to  quiet  title  In  himself  In  said 
premises.  That  this  plaintiff,  answering,  al- 
leged the  making  of  said  mortgage,  etc.  That 
said  action  was  tried  to  the  court  on  January 
10,  1906.  Said  court  found,  adjudged,  and 
decreed  that  defendant  in  that  action  (the 
plaintiff  in  this  action)  had  a  valid  lieu  on 
said  land  by  virtue  of  said  mortgage  to  the 
amount  of  $701.88  as  more  fully  appears  by 
the  record  and  papers  jn  said  action.  Where- 
fore plaintiff  prays  judgment  against  said 
defendant  (1)  for  $701.88,  and  Interest  on 
said  sum  from  January  10, 1906,  and  $7  dam- 
ages sustained  by  reason  of  suing  out  the 
restraining  order;  (2)  the  usual  decree  for 
the  sale  of  said  premises,"  etc.  The  defend- 
ants made  joint  answer  by  general  denial, 
except  as  to  all  matters  speciflcally  admitted, 
and  alleged  that  said  notes  and  mortgage  de- 
scribed In  the  complaint  were  never  deliver- 
ed to  plaintiff;  that  said  notes  and  mort- 
gage were  executed  by  the  defendant  Barton 
and  delivered  to  the  Bank  of  Ashton  in  es- 
crow, to  be  delivered  to  plaintiff  when  plain- 
tiff delivered  to  Barton  the  sums  of  money 
represented  by  said  notes ;  and  that  the  said 
sums  of  money  represented  by  said  notes, 
nor  any  part  thereof,  were  ever  delivered 
to  Barton,  or  to  any  other  person  for  him, 
and  that  said  notes  and  mortgage  were  whol- 
ly without  consideration ;  and  defendants  also 
pleaded  the  statute  of  limitations,  both  the 
six  and  ten  year  statutes. 

The  only  evidence  offered  by  plaintiff  In 
this  case  In  proof  of  the  allegations  of  the 
complaint  was  the  mortgage  and  the  judg- 
ment roll,  consisting  of  summons,  complaint, 
answer,  reply,  findings,  and  judgment  in  the 
former  action  of  H.  F.  Hunter,  plaintiff,  v. 
F.  W.  Kammann,  defendant  From  this  judg- 
ment roll  it  appears  that  plaintiff  Hunter 
brought  suit  against  the  defendant,  Kam- 
mann,  to  quiet  title  to  S.  W.  %  82-120-63, 
plaintiff  alleging  ownership  and  possession  In 
himself,  and  that  defendant,  Kammann, 
claimed  to  have  some  Interest  In  or  Incum- 
brance upon  said  real  estate  adverse  to  plain- 
tiff. In  that  action  defendant  answered,  al- 
leging that  on  June  13,  1889,  one  Lot  Lee 


•For  other  cases  sea  same  topic  and  leetlon  NUMBER  in  Dec.  t  Am.  Digs.  1M7  to  dat%  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


S.D.) 


EAHMANN  v.  BARTON. 


417 


Barton  was  the  owner  of  aald  premises  and 
being  Indebted  to  defendant  In  the  sum  of 
$237  and  Interest  diie  September  6,  1889,  to 
secure  the  payment  thereof,  executed  and  de 
Ilrered  to  defendant  a  real  estate  mortgage 
upon  said  premises  containing  a  power  of 
sale,  and  to  this  answer  the  plaintiff  in  that 
action  replied  by  a  general  denial  and  also 
by  setting  np  the  statute  of  limitations 
against  the  notes  and  mortgage,  and  also  al- 
leged that  said  notes  were  given  without 
consideration,. and  that  said  notes  were  not 
executed  and  delivered  to  defendant,  Kam- 
mann.  On  the  trial  of  the  former  action 
the  court  found:  "That  the  plaintiff  Hunter 
was  the  owner  of  said  land,  subject,  how- 
ever, to  a  mortgage  lien  thereon  in  favor  of 
defendant,  Kammann ;  that  Hunter  acquired 
title  by  warranty  deed  from  Barton  August 
13,  1898,  and  that  Barton  acquired  title  from 
the  United  States;  that  on  June  13,  1889, 
Barton  executed  a  mortgage  to  defendant, 
Kammann,  to  secure  $237,  evidenced  by  two 
notes  described  in  the  answer,  and  that  said 
mortgage  was  on  June  14, 1889,  duly  filed  for 
record  and  thereafter  duly  recorded;  that 
defendant  Is  still  the  owner  and  holder  of 
said  notes  and  mortgage,  and  that  no  part 
of  said  debt  has  ever  been  paid,  and  that 
defendant  has  a  valid  and  subsisting  Hen  on 
said  lands  superior  and  paramount  to  the 
title  of  plaintiff  to  the  amount  of  $701.88," 
and  thereafter  the  conrt  rendered  Judgment 
"that  plaintiff  Hunter  take  nothing  by  said 
action;  that  the  mortgage  of  defendant  is 
superior  and  paramount  to  the  title  of  plain- 
tiff in  and  to  said  land  in  the  sum  of  $701.88 ; 
and  that  en  the  payment  of  said  amount  to 
defendant  title  to  said  land  be  quieted  in 
him."  In  the  case  at  bar  the  court  found 
'*that  on  June  13,  1889,  the  defendant  Lot 
Lee  Barton  executed  and  delivered  to  plain- 
tiff his  mortgage  on  the  S.  W.  %  of  section 
82  to  secure  the  payment  of  $237,  with  In- 
terest, due  September  6,  1889;  that  said 
mortgage  contained  a  power  of  sale;  that 
said  mortgage  was  duly  filed  for  record; 
that  in  August,  1905,  defendant  Hunter,  as 
plaintiff  therein,  commenced  an  action  in 
this  court  against  this  plaintiff  as  defendant 
therein  to  quiet  title  In  Hunter  to  said  land 
as  the  Immediate  grantee  of  defendant  Bar- 
ton under  a  warranty  deed  of  August,  1898; 
that  this  plaintiff  as  defendant  in  that  action 
answered  and  pleaded  the  making  and  de- 
livery of  said  notes  and'  mortgage;  and  that 
the  title  of  Hunter  was  subject  to  the  said 
mortgage  of  the  said  defendant,  and. to  which 
answer  the  said  Hunter  replied,  denying  the 
allegations  of  said  answer,  and  alleging  the 
statute  of  limitations  against  said  notes  and 
mortgage,  and  alleging  that  said  notes  and 
naortgage  were  never  delivered  to  the  de- 
fendant, Kammann;''  that  on  the  10th  day 
of  January,  1906,  the  said  action  of  Hunter 
▼.  Kammann  was  tried  and  the  court  heard 
the  proofs  and  considered  the  same,  and,  the 
122  N.W.— 27 


records  and  papers  in  the  case  and  argnmentn 
of  counsel  and  said  cause  having  been  submit- 
ted, the  court  found  "that  plaintiff  Hunter 
was  the  owner  of  the  land  subject  to  the  said 
mortgage  of  defendant;  that  Hunter  derived 
title  from  Barton  in  1898,  and  that  prior 
thereto,  in  1889,  Barton  was  indebted  to  de- 
fendant in  the  sum  of  $237,  and  made  said 
mortgage  to  secure  the  payment  thereof, 
and  that  said  mortgage  was  duly  filed  for 
record,  and  that  defendant  is  still  the  owner 
of  said  notes  and  mortgage,  and  that  there 
was  then  due  thereon  $701.88" ;  that  on  said 
findings  the  court  in  that  action  rendered 
Judgment  that  "defendant,  Kammann,  had  a 
valid  subsisting  lien  on  said  land  to  the 
amount  of  $701.88  superior  to  the  title  of 
plaintiff."  In  this  action  the  court  further 
found  that  all  the  Issues  raised  by  the  plead- 
ings in  the  case  of  Hunter  v.  Kammann 
touching  the  making  and  delivery  of  said 
notes  and  mortgage  and  the  question  of  the 
bar  of  the  statute  of  limitations  were  tried 
and  determined  and  adjudicated  in  said  ac- 
tion In  favor  of  defendant,  and  which  Judg- 
ment has  never  been  appealed '^from,  modi- 
fied, or  reversed;  that  Barton  has  made  no 
payments  on  said  mortgage  debt,  and  upon 
these  findings  the  court  in  the  case  at  bar 
rendered  Judgment  "that  the  plaintiff,  Kam- 
mann, recover  of  the  defendant  Barton  the 
sum  of  $752.37  and  costs  and  expenses,  and 
that  said  land  be  sold  at  foreclosure  sale  to 
satisfy  said  Judgment  or  so  much  thereof 
as  the  proceeds  of  such  sale  would  satisfy, 
and  that  the  purchaser  at  such  sale,  in  case 
of  failure  of  redemption,  be  given  a  deed, 
and  that  defendants  and  all  persons  claiming 
under  them  be  forever  barred  and  foreclosed 
of  all  title  to  said  land." 

The  defendants,  the  appellants  In'  this  ac- 
tion, now  contend  that  there  was  no  suflacient 
evidence  to  sustain  the  said  findings  and 
Judgment;  that  there  is  np  evidence  to  show 
the  delivering  of  the  promissory  notes  and 
mortgage  on  which  the  Judgment  is  based; 
that  there  Is  no  evidence  to  support  the  find- 
ing that  "all  the  issues  in  the  former  case 
of  Hunter  v.  Kammann  touching  the  making 
and  delivery  of  said  notes  and  mortgage  and 
the  question  of  the  bar  of  the  statute  of 
limitations  were  tried,  determined,  and  ad- 
judicated In  said  action."  In  this  contention 
we  are  of  the  opinion  that  appellants  are 
correct,  and  especially  as  to  the  question  of 
the  statute  of  limitations.  There  is  absolute- 
ly no  evidence  as  to  what  was  litigated  or  ad- 
judicated in  the  former  action  other  than 
the  natural  Inference  that  arises  from  the 
fact  of  a  Judgment  In  favor  of  the  defendant, 
but  an  inference  of  this  character  must 
arise  as  a  necessity  in  order  to  substantiate 
the  Judgment,  and,  while  the  court  must  have 
found  as  a  matter  of  necessity  that  the  notes 
and  mortgage  were  executed  and  delivered 
to  defendant  Kammann  In  that  action  in  or- 
der that  he  might  recover  in  any  event,  still 
that  Inference  would  not  necessarily  prevail 


Digitized  by  VjOOQ  l€ 


418 


122  NORTHWESTERN  REPORTER. 


^K 


as  to  the  statute  of  limitations.  The  plain- 
tiff in  the  former  action  might  Iiave  ofTered 
no  evidence  at  all  on  tbe  issue  of  tlie  statute 
of  limitations,  or  miglit  hare  abandoned  that 
issue,  and  the  defendant  still  have  been  en- 
titled to  the  same  Judgment  that  was  render- 
ed. It  was  not  necessarily  essential  that 
the  question  of  the  statute  of  limitations  be 
litigated  or  adjudicated  in  order  that  defend- 
ant recover.  In  the  absence  of  proof  that  a 
particular  Issue  was  actually  tried  and  de- 
termined in  arriving  at  a  former  Judgment, 
it  is  conclusive  by  way  of  estoppel  only  as 
to  those  facts  without  the  existence  and  proof 
of  which  it  could  not  have  been  rendered; 
In  other  words,  it  Is  conclusive  evidence  of 
whatever  It  was  necessary  for  the  court  to 
have  found  In  order  to  warrant  the  decision 
in  the  former  action,  and  no  further.  23  Cyc. 
1297-1306-1308-1309,  and  cases  there  cited; 
Hosteller  v.  Holborn  (S.  D.)  114  N.  W.  693; 
Selble  V.  Graham,  18  S.  D.  365,  100  N.  W. 
755.  Recitals  in  the  Judgment  are  not  con- 
clusive, and  are  not  evidence  of  adjudication. 
23  Cyc.  1292.  There  is  no  evidence  or  infer- 
ence that  the  statute  of  limitations  was  con- 
sidered or  determined  in  the  former  action. 
It  Is  not  enough  even  that  it  appears  that  the 
Issue  presented  in  the  later  suit  was  present- 
ed and  ought  to  have  been  litigated  in  the 
former,  but  it  must  appear  further  that  It 
was  litigated  and  decided,  as  well  as  involv- 
ed. It  must  appear  that  the  issue  was  sup- 
ported or  attacked  by  the  evidence  and*  made 
the  subject  of  the  trial  and  pressed  upon  the 
consideration  of  the  court.  Selble  v.  Graham, 
18  S.  D.  365,  100  N.  W.  755;  McPherson  v. 
Swift  (S.  D.)  116  N.  W.  76;  23  Cyc.  1311. 
The  case  of  Teigen  v.  Drake,  13  N.  D.  602, 
101  N.  W.  893,  is  a  very  similar  case  to  the 
one  at  bar,  In  which  It  Is  held  "that  the 
Judgment  In  the  action  to  quiet  title  is  not 
available  as  res  adjudlcata  in  the  trial  of 
the  foreclosure  action.  The  former  Judg- 
ment was  entered  in  July,  1903,  and  this  ac- 
tion was  commenced  September  12,  1903. 
For  aught  we  know,  the  time  limited  by  the 
statute  may  not  have  expired  until  after  the 
entry  of  Judgment  The  record  furnishes  no 
Information  on  that  point  A  former  Judg- 
ment is  not  conclusive  against  defendants 
unless  it  is  made  to  appear  that  all  the  con- 
ditions essential  to  this  defense  were  the 
same  in  the  former  action  as  they  are  in 
the  subsequent  one."  The  same  situation  of 
affairs  exists  In  the  case  at  bar.  On  the 
face  of  the  evidence  It  would  prima  fade 
seem  that  the  statute  of  limitations  had  run 


against  the  notes  and  mortgage.  If  there 
was  any  tolling  of  the  statute  by  the  absence 
of  the  defendants  from  the  state,  the  burden 
was  on  the  plaintiff  to  show  the  facts.  Dlel- 
mann  v.  Bank,  8  S.  D.  263,  66  N.  W.  311; 
Searls  v.  Knapp,  5  S.  D.  S&,  68  N.  W.  807, 
49  Am.  St  Rep.  873.  The  mortgage  in- ques- 
tion appears  from  the  record  to  be  an  in- 
strument not  under  seal  and  would  be  barred 
In  10  years,  unless  the  statute  was  In  some 
manner  tolled.  Bruce  v.  Wanzer,  20  S.  D. 
277,  105  N.  W.  282.  There  is  no  evidence 
in  this  case  Sufficient  to  show  any  tolling  of 
the  statute  of  limitations. 

Again,  in  this  case,  the  plaintiff  by  his 
complaint  demanded  personal  Judgment 
against  defendant  Barton,  and  a  personal 
Judgment  has  been  rendered  against  him  In 
this  action  for  the  amount  of  the  notes  and 
Interest  and  costs.  Barton  was  not  a  party 
to  the  former  action,  and  the  Judgment  In 
that  action  Is  not  res  adjudlcata  as  to  him. 
Barton  does  not  stand  In  privity  to  Hunter. 
He  does  not  olalm  anything  in  this  action 
through  or  under  him.  Oilman  t.  Carpenter 
(S.  D.)  115  N.  W.  659.  A  grantee  of  real 
estate  under  some  circumstances  stands  in 
privity  to  his  grantor,  but  the  grantor  does 
not  stand  in  privity  to  the  grantee.  23  Cyc. 
1257.  The  former  Judgment  in  the  case  of 
Hunter  v.  Kammann  Is  not  evidence  against 
Barton  as  to  the  execution  and  delivery  of 
the  notes  and  mortgage,  and  consequently 
there  Is  no  evidence  In  the  case  that  would 
warrant  any  Judgment  against  Barton.  Re- 
citals In  the  mortgage  are  not  sufficient. 
Bruce  V.  Wanzer,  18  S.  D.  155, 19  N.  W.  1102, 
112  Am.  St  Rep.  788.  If  Barton  in  1898  con- 
veyed by  warranty  deed  to  Hunter,  subject 
to  the  mortgage,  then  Barton  would  have  no 
Interest  in  the  foreclosure  of  the  mortgage 
lien  against  the  land,  as  he  has  parted  with 
all  his  interest  therein  and  could  not  be  heard 
to  complain,  as  he  would  not  be  a  party  In 
Interest  excepting  in  case  the  land  sold  for 
less  than  the  amount  of  the  personal  Judg- 
ment, In  which  case  a  portion  of  the  personal 
Judgment  would  still  stand  against  him.  If 
Barton  conveyed  to  Hunter  free  and  clear  of 
all  incumbrance,  then  Barton  might  be  In- 
terested In  having  the  whole  of  the  Indebted- 
ness eliminated  in  order  to  avoid  liability  on 
the  covenants  in  his  deed. 

The  Judgment  of  the  circuit  court  la  re- 
versed, and  a  new  trial  ordered. 

WHITING,  J.,  took  no  part  in  this  deci- 
sion. 


Digitized  by 


Google 


8.  D.) 


MEADOWS  ▼.  OSTEREAMP. 


419 


MEADOWS  et  al.  t.  OSTEREAMP  et  al. 

(Supreme  Coart  of  South  Dakota.     June  26, 
1909.) 

1.  Evidence  (i  41*)  —  Judicial  Notice  — 
Tekmb  of  Court. 

The  Supreme  Court  will  take  judicial  no- 
tice that  terms  of  court  are  appointed  in  a  cer- 
tain county  to  be  held  on  the  first  Tuesdays  in 
March  and  September. 

[E:d.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  S3  5«-00;    Dec.  Dig.  S  41.*] 

2.  Continuance  (J  9*)— Stipulations. 

An  alleged  stipulation  to  continue  a  cause 
signed  by  attorneys  of  one  of  the  parties,  and 
not  by  the  other,  is  wholly  void. 

[Ed.  Note.— For  other  cases,  see  Continuance, 
Cent.  Dig.  |  12;    Dec.  Dig.  f  9.*] 

3.  Appeal   and   Ebsob   ({   1203*)— Pbocksd- 
INQS  Afteb  Remand— Dibvissal. 

Under  Code  Cii'.  Proc.  $  465,  providing 
that  a  case  remanded  by  the  Supreme  Court 
for  further  proceedings  In  a  trial  court  shall 
be  dismissed  if  no  proceedings  are  had  therein 
within  a  year,  unless,  upon  good  cause  shown, 
the  court  shall  otherwise  order,  an  affidavit  of 
respondent's  attorney  tending  to  show  an  oral 
acireement  for  a  written  stipulation  for  continu- 
ance being  absolutely  void  does  not  constitute 
a  showing  of  good  canae  apon  which  the  court 
could  refuse  to  dismiss. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  i  1203.  •] 

Appeal  from  Circuit  Court,  Sully  County. 

Action  by  George  Meadows  and  another 
against  Lorenze  Osterkamp  and  others. 
From  an  order  denying  defendants'  motion  to 
dismiss,  they  appeal.  Reversed  and  remand- 
ed, with  directions. 


Albert  Gunderson,   for   appellants. 
Sutherland,  for  respondents. 


John 


SMITH,  J.  Action  to  cancel  a  tax  deed 
as  a  cloud  on  plaintiff's  title.  The  issues 
raised  by  the  pleadings  appear  to  have  been 
tried  to  a  jury  and  a  verdict  rendered  Sep- 
tember 14,  1901.  Judgment  was  entered  for 
plaintiffs  March  18,  1903,  from  wtiich  an 
appeal  was  taken  by  defendants,  who  are  ap- 
pellants here.  The  Judgment  of  the  trial 
court  was  reversed  by  this  court  on  May  31, 
1005,  and  a  new  trial  ordered.  Remittitur 
was  sent  down  from  this  court  on  June  30, 
1905,  and  filed  with  the  clerk  of  court  of 
Sully  county  on  July  S,  1905.  A  term  of 
court  was  held  in  Sully  county  after  July  3, 
1805,  and  prior  to  June  30,  1906,  though 
the  record  foils  to  disclose  the  date  said  term 
was  actually  Iield.  It  does  disclose,  however, 
tbat  said  cause  was  not  tried  at  said  term, 
and  ttiat  no  proceedings  have  been  liad  in 
said  canse  since  the  remittitur  was  flied,  and 
no  action  whatever,  except  as  hereinafter 
stated,  has  l>een  had  by  either  party  to  bring 
the  cause  on  for  trial.  On  August  6,  1906, 
appellants  served  on  respondents  a  notice  of 
motion  to  dismiss  this  action  for  want  of 
prosecution  under  the  provisions  of  section 
465,  Code  Civ.  Proc.,  which  motion  was 
bronght  on  for  hearing  September  4,  1006,  at 


a  term  of  court  In  Sully  county.  This  motion 
was  based  on  all  the  records,  flies,  and  pro- 
ceedings theretofore  had  in  said  cause.  On 
August  23,  1906,  respondents*  attorney  served 
on  appellants'  attorney  a  notice  of  trial  for 
the  September  term,  1906,  as  disclosed  by 
the  abstract,  but  it  does  not  appear  that  the 
notice  of  trial  or  any  note  of  issue  was  ever 
filed  with  the  clerk.  Upon  the  hearing  of  the 
motion  to  dismiss  on  September  4,  1906,  re- 
spondents' attorney  appears  to  have  present- 
ed said  notice  of  trial  and  note  of  issue  to 
the  court,  together  with  an  affidavit  sworn  to 
by  respondents'  attorney,  John  Sutherland, 
to  the  effect  that  on  March  31, 1906,  he  enter- 
ed Into  negotiations  for  a  written  stipulation 
for  a  continuance  of  said  cause  to  the  next 
September  term ;  that  he  signed  said  stipula- 
tion and  left  it  with  Gunderson,  appellants' 
attorney,  who  agreed  to  sign  it  but  failed  to 
do  so,  of  which  fact  affiant  had  no  notice 
until  August,  1906;  that  because  of  the  al- 
leged stipulation  and  certain  negotiations  for 
settlement  affiant  did  not  attend  the  April 
term  of  court  in  Sully  county.  To  the  of- 
fer of  this  affidavit  appellants'  counsel  ob- 
jected on  the  ground  that  it  was  not  ad- 
missible under  the  statute  for  the  purpose 
of  proving  a  stipulation  or  any  agreement 
binding  on  the  parties,  and,  without  waiving 
said  objection,  also  offered  in  rebuttal  an  af- 
fidavit absolutely  denying  all  the  allegations 
of  Sutherland's  affidavit  No  ruling  on  this 
objection  is  disclosed  by  the  record,  but  on 
September  4,  1906,  the  trial  court  entered  an 
order  denying  appellants'  motion  to  dismiss 
the  action,  which  was  excepted  to  and  was 
attested  and  filed  on  September  6,  1906.  On 
October  10,  1906,  the  defendants  duly  perfect- 
ed an  appeal  from  the  order. 

We  think  the  trial  court  erred  in  overrul- 
ing the  motion  to  dismiss.  It  is  not  even 
claimed  by  respondents  that  any  written 
stipulation  was  ever  actually  signed  by  the 
parties  to  continue  the  trial  of  the  cause  to 
the  September  term.  This  court  will  take 
judicial  notice  that  terms  of  court  are  ap- 
pointed in  Sully  county  to  be  held  on  the  first 
Tuesdays  in  March  and  September,  and  the 
record  before  us  does  not  show  that  such 
terms  were  not  held.  The  remittitur  from  the 
Supreme  Court  in  this  cause  was  filed  July 
3,  1905.  No  proceedings  appear  to  have  been 
taken  by  plaintiffs  to  bring  the  action  on  for 
trial  at  the  September  term,  1905,  and  noth- 
ing further  appears  to  have  been  done  until 
March,  1906,  when,  as  alleged  in  respond- 
ents' said  affidavit,  certain  oral  negotiations 
were  had  relating  to  a  proposed  written  stip- 
ulation for  a  continuance  to  the  September 
term,  1906.  The  alleged  stipulation  in  writ- 
ing, even  if  signed  by  respondents,  but  not  by 
appellants,  was  wholly  void  and  ineffectual, 
and  could  not  have  been  properly  received  In 
evidence  over  objection  for  any  purpose  what- 


•7sf  oUmt  cum  sm  same  topic  and  section  NUMBER  in  Dec.  *  Am.  Digs.  1907  to  date,  *  Raporter  Indexas 


Digitized  by 


L-oogle 


420 


122  NORTHWESTERN  REPORTER. 


03.  D. 


erer.  The  statute  in  terms  requires  a  dis- 
uissal  of  the  action  where  a  new  trial  la  or- 
dered by  the  appellate  court,  and  no  pro- 
ceedings are  bad  in  the  trial  court  within  one 
year  from  the  date  of  such  order  In  the  Su- 
preme Ck>urt,  "unless  upon  good  cause  shown 
the  court  shall  otherwise  order." 

It  may  be  conceded,  as  held  by  this  court 
In  Root  et  al.  v.  Sweeney,  17  S.  D.  182,  05  N. 
W.  916,  that  the  order  appealed  from  rests  in 
the  sound  discretion  of  the  trial  court,  and 
should  not  be  reversed  unless  it  appears 
that  there  has  been  an  abuse  of  such  discre- 
tion. But,  as  was  said  in  that  case,  "the 
litigation  was  initiated  by  the  plaintiffs  for 
the  purpose  of  obtaining  a  personal  Judg- 
ment. Defendant  was  not  interested  in  hav- 
ing it  properly  prosecuted.  The  plaintiffs 
alone  were  injured  by  the  dismissal.  They 
were  bound  to  proceed  within  the  year,  un- 
less prevented  by  some  cause  for  which  they 
were  not  responsible.  Has  any  such  cause 
been  shown?  We  think  not  *  *  •  An  at- 
torney may  bind  his  client  to  any  agreement 
in  respect  to  any  proceeding  within  the  scope 
of  his  proper  duties  and  powers,  but  no  evi- 
dence of  any  such  agreement  is  receivable  ex- 
cept the  statement  of  the  attorney  himself, 
his  written  agreement,  signed  and  filed  with 
the  clerk,  or  an  entry  thereof  upon  the  rec- 
ords of  the  court.  Comp.  Laws  1887,  S  467. 
In  the  case  at  bar  there  was  no  competent 
evidence  of  an  agreement"  The  authority  of 
the  trial  court  in  the  case  at  bar  to  refuse  to 
grant  the  motion  to  dismiss  the  action  must 
rest  upon  good  cause  shown.  Upon  the  ex- 
piration of  the  year  within  which  further 
proceedings  in  the  action  must  be  had,  "or  in 
default  thereof  the  action  shall  be  dismiss- 
ed," the  moving  party  is  entitled  to  a  dis- 
missal "unless  upon  good  cause  shown  the 
court  shall  otherwise  order."  It  is  true 
the  trial  court  is  vested  with  a  sound  discre- 
tion in  determining  what  shall  constitute 
good  cause.  But  the  law  does  not  authorize 
the  trial  court  to  deny  a  motion  to  dismiss 
when  no  good  cause  is  shown,  much  less  when 
no  cause  whatever  is  shown.  The  afiBdavit 
of  respondents'  attorney,  tending  to  show  an 
oral  agreement  for  a  written  stipulation  for 
continuance  of  the  trial  to  the  September 
term  of  court,  was  absolutely  incompetent 
for  any  purpose  in  the  case,  and  could  no 
more  constitute  a  showing  of  "good  cause" 
upon  which  the  court  could  refuse  to  dis- 
miss than  It  would  constitute  a  good  ground 
for  a  continuance.  No  other  proceeding 
whatever  Is  shown  by  the  record  except  the 
ser^'ice  of  notice  of  trial  by  plaintiffs'  at- 
torney on  August  23,  1906,  but  the  year 
within  which  some  proceeding  in  the  action 
must  be  taken  had  expired  in  July  previous 
to  such  service,  and  such  notice  was  irrele- 
vant upon  this  motion.  The  record  does  not 
disclose  an  acceptance  of  such  service  by  ap- 


pellants' counsel.  Upon  the  whole  record  be- 
fore us,  we  are  unable  to  discover  good 
cause,  or  any  cause,  which  would  Justify  the 
trial  court  In  refusing  to  dismiss  the  action. 
The  order  of  the  court  is  reversed,  and 
the  cause  remanded,  with  directions  to  the 
trial  court  to  enter  an  order  dismissing  the 
action. 


STATE  V.  KAMMEIi. 

(Supreme  Court  of  South  Dakota.     June  2G, 
1909.) 

1.  Cbihinal  Law  (J  1043*)— AppeaI/— Objec- 
tions—Gbounds  OF  Objections— Necessitt 
of  Specific  Objections. 

Where  specific  objections  are  made  to  evi- 
dence below,  other  objections  will  not  be  con- 
sidered on  appeal,  so  that  an  objection  to  the 
admission  of  a  physician's  testimony  as  to  the 
cause  of  a  death,  as  not  being  upon  witness' 
own  knowledge  or  upon  a  hypothetical  state- 
ment of  facts,  will  not  be  considered  on  ap- 
peal, where  that  objection  was  not  made  be- 
low. 

[EM.    Note.— For   other   cases,    see    Criminal 
Law,  Cent  Dig.  {  26o5;   Dec.  Dig.  {  1043.*] 

2.  Cbiminal  Law  (J  479»)  —  Evidence  —  Ex- 
pebt  Testuiort--Quauficationb  of  Ex- 

PEBTS.  « 

It  will  be  assumed  that  members  of  a  pro- 
fession, after  a  reasonable  time,  have  knowledge 
common  to  persons  engaged  therein,  and  a  phy- 
sijcian,  who  had  received  a  medical  education 
and  had  practiced  for  some  eight  years  was  com- 
petent to  testify  as  an  expert  whether  a  death 
was  caused  by  arsenic,  though  he  had  never  liad 
any  cases  of  arsenic  poisoning. 

[Ed.    Note.— For   other   cases,   see   Criminal 
Law,  Cent  Dig.  {  1067;   Dec.  Dig.  i  479.»J 

3.  Cbiminal  Law  (J  479*)- Evidence— Ex- 
febt   Testimony— Qualificationb   of   Ex- 

PEBTS. 

Where  an  expert  testified  as  to  the  canse 
of  decedent's  death  from  the  facts  as  stated  by 
other  witnesses,  his  testimony  was  not  objec- 
tionable l>ecause  he  did  not  make  any  examina- 
tion, and  decedent  had  been  dead  some  time  be- 
fore he  saw  the  l)ody. 

[£U.    Note.— For   other   cases,    see   Criminal 
Law,  Cent  Dig.  I  1067;   Dec  Dig.  {  479.*J 

4.  Cbihinal  Law  ($  476*)— Evidence— Opin- 
ion Evidence— Conclusions. 

A  question  to  a  physician  as  to  the  cause 
of  decedent's  death  was  not  objectionable  on 
the  ground  that  it  called  for  a  conclusion. 

[Ed.    Note. — For    other   cases,    see    Criminal 
Law,  Cent  Dig.  H  1062;    Dec.  Dig.  {  476.*] 

5.  Homicide  (§  169*)— Pbosecution— Admis- 
sion OF  Evidence  —  Incbiuinatino  Cib- 
cumstances. 

Where  the  state  claimed  that  accused  had 
poisoned  his  wife  by  placing  arsenic  in  the  oat- 
meal during  the  absence  of  herself  and  her  son 
from  the  latter's  home,  where  she  lived,  testi- 
mony that  the  day  before  decedent  was  poisoned 
witness  saw  a  man  on  the  road  leading  from 
the  son's  farm  and  near  the  fence  separating 
his  farm  from  accused's  was  admissible  as  tend- 
ing to  prove  that  some  one  was  in  the  vicinity 
of  the  house  occupied  by  decedent  and  her  son 
during  their  absence,  though  he  was  not  identi- 
fied with  accused. 

[Ed.   Note.— For  other  cases,  see  Homicide, 
Dec.  Dig.  {  169.*] 


•For  otber  cases  see  («ma  topio  and  section  NUMBER  in  Dec.  ft.  Am.  Digs.  1907  to  data,  *  Reporter  Indtxa* 


Digitized  by  VjOOQ  l€ 


S.  D.) 


STATE  V.  EAMMCL. 


421 


6.  Cbiminai,  Law  (|  829»)  —  Instructions  — 
Requests  Covebed  by  iNsrauorioN  Giver. 
In  a  prosecution  of  accused  for  poisoning 
his  wife,  a  requested  charge  that  the  evidence 
was  circumstantial,  and  accused  was '  presumed 
innocent  until  the  contrary  appeared  from  the 
evidence,  and,  in  order  to  convict,  the  circum- 
stances must  be  so  strong  as  to  exclude  every 
reasonable  hypothesis  except  guilt,  and,  if  facts 
could  l>e  explained  upon  any  reasonable  hypothe- 
sis consistent  with  innocence,  the  juiy  should 
acquit,  and  the  state  must  not  only  show  be- 
yond a  reasonable  doubt  that  the  facts  were 
true,  but  must  also  show  that  they  were  in- 
compatible with  any  reasonable  hypothesis  of 
Innocence,  and  each  fact  essential  to  show  guilt 
must  be  proven  beyond  a  reasonable  doubt,  was 
sufficiently  covered  by  the  court's  charge  that, 
in  order  to  convict,  the  circumstances  must  be 
so  strong  as  to  exclude  every  reasonable  hy- 
pothesis except  that  of  guilt,  and,  if  the  facts 
proven  upon  any  reasonable  hypothesis  were  con- 
sistent with  innocence,  the  jury  should  acquit, 
which  charge  was  subsequently  repeated  in 
substance. 

[Eld.  Note.— For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  f  2011 ;   Dec.  Dig.  {  829.*] 

7.  Criminai.  Law  (J  834«)— Instructions — 
Requests. 

The  trial  court  need  not  instruct  in  the  ex- 
act language  of  the  request,  though  it  be  cor- 
rect, but  may  use  its  own  language. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law.  Cent.  Dig.  |  2014;  Dec.  Dig.  i  834.*] 

Appeal  from  Circnlt  Court,  Hand  County. 

Gustaye  Kammel  was  convicted  of  man- 
slaughter in  the  first  degree,  and  he  appeals. 
Aflarmed. 

John  Pnsey  and  S.  V.  Ghrist,  for  appellant 

8.  W.  Clark,  Atty.  Gen.,  Cloyd  D.  Sterling, 
Asst  Atty.  Gen.,  and  Harlan  J.  Bushfield, 
State's  Atty.,  for  the  State. 

CORSON,  J.  Upon  an  Information  duly 
filed  by  the  state's  attorney  of  Hand  coun- 
ty, charging  the  defendant  with  the  crime  of 
murder,  he  was  convicted  of  manslaughter 
in  the  first  degree,  and,  from  a  Judgment 
entered-  upon  the  verdict  of  the  Jury,  he  has 
appealed  to  this  court 

It  Is  charged  in  the  information  that  the 
defendant  on  the  13th  day  of  December, 
1907,  did  kill  and  murder  one  Mary  Kammel, 
by  means  of  poison  administered  to  her  by 
him.  It  is  disclosed  by  the  evidence:  That 
the  defendant  and  the  deceased  were  hus- 
band and  wife,  and  for  some  months  prior 
to  the  alleged  homicide  they  had  been  sepa- 
rated; the  deceased  living  with  their  son 
on  bis  farm  about  a  half  mile  distant  from 
the  farm  on  which  defendant  resided.  That, 
on  the  morning  of  the  day  that  the  deceased 
died,  she  and  her  son  made  their  breakfast 
mainly  of  oatmeal.  That,  soon  after  break- 
fast, the  deceased  became  very  ill,  and  also 
the  son,  and  some  time  in  the  afternoon  the 
deceased  expired.  Tliat  the  son,  immediately 
npon  finding  himself  and  his  mother  so  ill, 
went  to  the  home  of  the  defendant  and  in- 
formed lilm  of  the  illness  of  the  deceased; 
the  son  remaining  at  the  home  of  the  de- 
fendant, too  ill  to  further  attend  to  his  moth- 


er. That  the  defendant  several  hours  later 
in  the  day,  went  to  the  village  of  Rockham 
and  requested  Dr.  Seaman,  who  was  a  prac- 
ticing physician  in  that  village,  to  go  and 
visit  the  deceased.  That  Dr.  Seaman  imme- 
diately started  for  the  home  of  the  deceosed, 
three  miles  distant  from  Rockham;  but  up- 
on arriving  at  the  house,  at  about  3  SO  p. 
m.,  he  found  the  deceased  dead.  That  he 
then  prescribed  for  the  son,  who  subsequent- 
ly recovered.  That  the  oatmeal  remaining 
cooked  and  uncooked,  found  in  the  house  of 
the  SOD,  was  found,  upon  examination,  to 
contain  arsenic,  and  the  contents  of  the 
stomach  of  the  deceased,  which  had  been  re- 
moved, was,  upon  examination,  also  found 
to  contain  arsenic  poison.  That  the  day 
preceding  the  death  of  the  deceased,  she  and 
her  son  left  their  home  and  went  to  the 
town  of  Rockham,  and  were  absent  some 
hours.  It  was  also  further  disclosed  by  the 
evidence  that  there  had  been  much  quarrel- 
ing between  the  deceased  and  the  defendant, 
resulting  from  her  refusal  to  sign  a  deed,  or 
Join  in  the  sale  of  the  homestead,  and  that, 
as  a  result  of  their  disagreement,  divorce 
proceedings  were  pending,  in  which  the 
deceased  claimed  quite  a  large  sum  as  ali- 
mony. 

It  was  the  theory  of  the  prosecution  that 
during  the  absence  of  the  deceased  and  her 
son  from  home,  on  the  day  preceding  her 
death,  the  defendant  went  to  the  house  and 
placed  poison  in  the  oatmeal,  which  the  evi- 
dence tended  to  show  caused  the  death  of 
the  deceased,  and  that  the  motive  of  the 
defendant  in  causing  the  death  of  the  de- 
ceased was  to  prevent  her  from  securing  a 
divorce  and  obtaining  a  portion  of  his  prop- 
erty as  alimony,  and  also  to  secure  the  farm 
belonging  to  his  son,  who  was  at  the  time 
unmarried,  and  to  which  the  defendant 
would  succeed  in  the  case  of  the  death  of 
his  son,  as  his  heir.  On  the  trial,  after 
Fred  Kammel,  the  son,  had  testified  as  to 
the  eating  of  the  oatmeal  at  breakfast  by 
the  deceased  and  himself,  and  the  Illness  of 
the  deceased  and  himself,  with  the  symp- 
toms attending  the  name,  and  the  evidence 
of  Prof.  Whitehead  in  regard  to  the  finding 
of  arsenic  in  the  oatmeal,  cooked  and  un- 
cooked, and  in  the  contents  of  the  stomach 
of  the  deceased.  Dr.  Seaman  was  called  a 
second  time  as  a  witness  on  the  part  of  the 
state,  and  was  asked  the  following  ques- 
tions: "Q.  Dr.  Seaman,  did  you  hear  the 
testimony  to-day  of  Fred  Kammel?  A.  Yes, 
sir.  Q.  In  regard  to  the  death  of  his  moth- 
er? A.  Yes,  sir.  Q.  And  the  question  of 
Mr.  Whitehead  in  regard  to  his  examination 
of  the  contents  of  the  stomach  received  by 
blm?  A.  Yes,  air.  Q.  I  will  ask  you  now,/ 
Doctor,  after  hearing  this  evidence  of  the 
death  of  Mary  Kammel  and  the  symptoms 
held  by  her  shortly  prior  to  her  death  and 
after  eating  the  oatmeal,  which  was  testi- 


•Vor  otfcsr  c«MS  ■••  same  toplo  and  sactlon  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,,  ft  Reporter  lodezM 

Digitized  by  LjOOQ  l€ 


422 


122  NORTHWESTERN  REPORTER. 


(S.D. 


fled  to,  what  was  tbe  cause  of  her  death?" 
To  this  question  the  defendant's  counsel  ob- 
jected for  the  reason  that  the  witness  had 
not  shown  himself  competent  to  testify  at) 
an  expert,  and  for  the  further  reason  that 
the  oatmeal  referred  to  had  not  in  any  man- 
ner been  properly  identified  as  the  oatmeal 
she  partook  of,  and  for  the  further  reason 
that  the  witness  had  testified  that  the  de- 
ceased had  been  dead  for  some  time  before 
be  went  to  where  the  body  was,  and  that  he 
did  not  make  any  examination  at  all,  and 
for  the  further  reason  that  it  calls  for  a  con- 
clusion, which  objection  was  overruled,  and 
defendant  excepted.  The  witness,  in  reply 
to  the  question,  testified:  "I  should  say  it 
was  arsenic  poison." 

It  is  contended  by  the  appellant  that,  in 
permitting  the  witness  to  answer  the  above 
question,  the  court  committed  error,  for 
the  reason  that  it  was  calling  upon  the  wit- 
ness to  express  an  opinion  from  the  testimo- 
ny of  other  witnesses,  and  that  the  witness 
neither  testified  from  his  own  knowledge, 
nor  from  the  state  of  facts  stated  In  a  hypo- 
thetical question.  It  will  be  observed  that, 
in  the  objections  made  to  the  admission  of 
the  evidence  of  Dr.  Seaman,  no  objection 
was  made  upon  this  ground  at  the  trial,  and 
hence  is  not  properly  before  us  for  review. 
The  counsel,  having  made  specific  objections 
to  the  introduction  of  the  evidence  in  tbe 
court  lielow,  is  confined  to  the  objections 
specified,  and  therefore  we  do  not  deem  it 
necessary  at  this  time  to  express  any  opin- 
ion as  to  the  admissibility  of  such  testimony, 
when  not  elicited  from  the  expert  by  k  hypo- 
thetical question. 

It  is  also  contended  that  Dr.  Seaman  had 
not  shown  himself  qualified  as  an  expert,  and 
therefore  his  evidence  was  inadmissible.  He 
testified  that  he  had  been  a  practicing  physi- 
cian for  some  eight  years,  the  last  four  years 
of  which  he  had  practiced  in  the  town  of 
Rockham ;  and,  while  it  is  true  that  he  testi- 
fied that  he  had  no  practical  experience  in 
cases  of  arsenic  poisoning,  still  the  fact  that 
he  had  received  a  medical  education,  and 
had  given  the  subject  the  consideration  that 
would  usually  be  given  by  a  physician,  he  was 
clearly  competent  to  give  an  opinion  as  to 
the  cause  of  the  death  of  the  deceased.  In 
17  Cyc.  38,  the  law  applicable  to  this  class 
of  cases  is  thus  stated:  "It  will  be  assumed 
in  practical  administration  that  members  of 
the  profession,  trade,  or  calling,  after  a  rea- 
sonable length  of  time,  have  the  knowledge 
common  to  persons  so  engaged."  In  Siebert 
V.  People,  143  111.  571,  82  N.  E.  431,  the  learn- 
ed Supreme  Court  of  that  state  held :  "A  li- 
censed practicing  physician,  who  is  shown  to 
be  a  graduate  of  a  regular  medical  college, 
and  to  have  practiced  bis  profession  for  many 
years,  is  competent  to  give  his  opinion,  op' 
on  a  hypothetical  question  setting  forth  the 
symptoms  of  a  person  immediately  prior  to 
his  death,  whether  the  death  was  from  the 
eOecta  of  arsenical  poison,  although  he  may 


not  be  shown  to  have  had  any  case  of  sucb 
IMiBoning.  A  medical  witness,  in  giving  bis 
opinion  as  an  expert,  is  not  confined  to  opin- 
ions derived  from  his  own  observation  and 
experience,  but  may  give  an  opinion  based 
upon  information  derived  from  medical 
books."  The  court's  opinion  In  that  case  is 
exhaustive,  and  reviews  the  numerous  cases 
bearing  upon  that  question,  and  arrives  at 
the  conclusion  Indicated  by  the  headnote 
above  quoted.  WhUe  there  Is  some  conflict 
in  the  authorities  upon  this  subject  tbe  rul- 
ing of  the  court  in  the  case  at  bar  is,  in  our 
opinion,  supported  by  the  weight  of  authori- 
ty. People  V.  Thacker,  108  Mich.  652,  66  N. 
W.  S63;  Anastasla  Hardlman  v.  Frank  Q. 
Brown,  162  Mass.  585,  39  N.  E.  192;  Ck>m. 
v.  Thompson,  159  Mass.  .56,  33  N.  E.  1111 ; 
MitcbeU  V.  State,  68  Ala.  417;  Lowe  v.  State, 
118  Wis.  641,  96  N.  W.  417;  Allen  v.  Voje, 
114  Wis.  1,  89  N.  W.  924 ;  State  v.  Wood,  53 
N.  H.  484 ;  Brown  v.  Marshall,  47  Mich.  57C, 
11  N.  W.  392,  41  Am.  Rep.  728 ;  Isenhour  v. 
State,  167  Ind.  617,  62  N.  E.  40,  87  Am.  St. 
Rep.  22& 

It  is  also  contended  by  the  appellant  that 
the  cooked  and  uncooked  oatmeal  and  the 
stomach  of  the  deceased,  which  it  Is  claimed 
was  sent  to  Prof.  Whitehead  at  Brookings  for 
examination,  were  not  sufficiently  identified ; 
but  we  are  of  the  opinion  that  there  Is  no 
merit  in  this  contention.  It  was  clearly 
shown  by  the  evidence  that  the  identical  oat- 
meal, cooked  and  uncooked,  found  In  the  pan- 
try of  the  deceased,  was  forwarded  to  Prof. 
Whitehead.  The  other  objections  were  not 
of  sufficient  merit  to  require  a  special  discus- 
sion. The  contention  of  the  appellant  that  the 
court  erred  in  admitting  the  testimony  of 
Prof.  Whitehead  as  to  the  chemical  examina- 
tion of  the  cooked  and  uncooked  oatmeal  and 
the  stomach  of  the  deceased,  for  tbe  reason 
that  the  same  was  not  sufficiently  iclentlfied, 
is  clearly  untenable  for  reasons  above  stated. 

It  is  also  contended  by  the  appellant  that 
the  court  erred  In  overruling  the  defendant's 
motion  to  strike  out  the  testimony  of  the  wit- 
nesses James  Palmer  and  William  Erb. 
These  witnesses  had  testified  that  on  Decem- 
ber 12tb  they  were  on  the  defendant's  farm 
trapping,  between  the  hours  of  10  and  11  a. 
m.,  while  the  deceased  and  her  son  were  away 
from  home.  Mr.  Erb  testified  he  saw  a  man 
coming  south  on  the  private  road  from  Fred 
Kammel's  place  and  saw  that  It  was  not  his 
partner.  Palmer,  and  Mr.  Palmer  testified 
that  about  the  same  time  he  saw  a  man  on 
the  west  side  of  the  fence,  separating  the  two 
farms  of  the  defendant  and  his  son,  and  that, 
when  he  reached  the  place  opposite  the  place 
where  the  man  was,  he  saw  tracks  across  the 
ice  of  the  creek,  running  across  tbe  two 
farms.  Tbe  witnesses  did  not  pretend  to 
identify  the  man  they  saw  as  the  defendant ; 
but  we  are  of  tbe  opinion  that  the  evidence 
was  clearly  admissible  as  tending  to  prove 
that  there  was  a  person  in  the  vicinity  of  the 
house  occupied  by  the  deceased  and  her  son 


Digitized  by  VjOOQ  l€ 


S.D.) 


UASON  ▼.  FIRE  ASS'M  OF  PHILADELPHIA. 


423 


.durlns  their  absence.  The  evidence  may  not 
haye  been  very  Important ;  but  it  was  proper 
to  be  shown  to  the  Jury. 

It  Is  further  contended  by  the  appellant 
that  the  court  erred  In  Its  refusal  to  give  the 
•defendant's  requested  instruction  to  the  Jury 
which  is  as  follows:  "This  Is  a  case  where 
the  state  seeks  a  conviction  on  circumstantial 
evidence.  The  defendant  is  presumed  to  be 
innocent  until  the  contrary  appears  from  the 
evidence ;  and,  in  order  to  convict,  the  cir- 
cumstances must  be  so  strong  as  to  exclude 
every  reasonable  hypothesis  except  the  guilt 
of  the  defendant  If  the  facts  proven  In  this 
■case  can  be  explained  upon  any  reasonable 
hypothesis  consistent  with  the  innocence  of 
the  defendant,  you  will  then  return  a  verdict 
■of  not  guilty.  And  you  are  further  instruct- 
«d  that  the  state  in  this  case  must  not  only 
show  beyond  a  reasonable  doubt  that  the  al- 
leged facts  and  circumstances  are  true,  but 
■tb{it  they  are  absolutely  incompatible  with 
Any  reasonable  hypothesis  of  the.innocence  of 
the  accused,  and  that  each  fact  necessary  to 
'establish  the  guilt  of  the  accused  must  be 
proven  by  the  evidence  submitted  to  you  be- 
jrond  a  reasonable  doubt."  It  clearly  appears 
from  the  charge  of  the  court  that  the  sub- 
stance of  this  Instruction  was  given  to  the 
Jury.  It  instructed  the  Jury  that:  "In  or- 
der to  convict,  the  circumstances  must  be  so 
strong  as  to  exclude  every  reasonable  hypoth- 
esis, except  the  guilt  of  the  defendant,  and, 
If  the  facts  proven  in  this  case  can  be  ex- 
plained upon  a  reasonable  hypothesis  consist- 
-ent  with  tlie  innocence  of  the  defendant,  you 
will  then  return  a  verdict  of  not  guilty." 
Again  the  court  charged  the  Jury :  "If  you 
-can  reconcile  the  evidence  before  you  upon 
any  reasonable  hypotheslB  consistent  with  the 
defendant's  innocence,  you  should  do  so,  and 
In  that  case  find  him  not  guilty."  It  will 
thus  be  seen  that  the  instruction  requested 
was  embodied  In  the  Judge's  charge,  though 
In  the  court's  own  language.  The  trial  court 
Is  not  required  to  give  an  instruction  in  the 
exact  language  in  which  it  Is  submitted,  al- 
-tbough  It  is  correct  In  every  respect;  but  It 
may  be  refused,  and  such  Instruction  given 
by  the  court  in  its  own  language. 

In  2  Thompson  on  Trials,  {  2352,  that 
learned  author.  In  discussing  this  question, 
■says :  "It  is  not  error  for  the  Judge  to  refuse 
requests  for  instructions  upon  propositions 
which  have  elsewhere  been  sufficiently  cover- 
ed, either  in  his  general  charge  or  in  other 
special  instructions  given;  and  it  is  a  prin- 
-dple  upon  which  appellate  courts  uniformly 
act  that  the  Judgment  will  not  be  reversed 
for  the  refusal  of  Instructions,  If  the  court 
can  see  that  the  case  was  placed  fully,  fairly, 
and  properly  before  the  Jury  by  the  instruc- 
tions which  were  given,  although  the  requests 
refused  may  have  been  correctly  drawn,  in 
point  of  law  and  in  their  application  to  the 


evidence.  Nay,  where  the  Judge  has  suffi- 
ciently instructed  the  Jury,  be  should,  as  a 
rule  of  practice,  refuse  additional  Instruc- 
tions; for,  as  elsewhere  seen,  a  multiplicity 
of  instructions,  although  correct  in  them- 
selves, tends  to  confuse  and  embarrass  the 
Jury."  It  may  be  that  the  instructions  re- 
quested present  the  law  in  a  more  pointed 
manner  than  those  which  the  court  has  giv- 
en; but  it  is  sufficient  that  the  Jury  were 
properly  Instructed  in  substance.  Counsel 
cannot,  by  presenting  special  requests,  dictate 
the  frame  of  language  In  which  instructions 
shall  be  given;  but  "when  several  forms  of 
expression  are  equally  accurate.  It  is  within 
the  discretion  of  the  trial  court  to  choose  that 
form  which  It  deems  best  adapted  to  make 
the  rule  of  law  Intelligible  to  common 
minds."  The  rule  also  rests  upon  the  concep- 
tion "that  courts  will  presume  Jurors  to  be 
men  of  average  Intelligence,  and  capable  of 
understanding  and  bearing  in  mind  a  propo- 
sition of  law  once  fully  and  clearly  stated, 
without  Its  repetition  in-  subsequent  instruc- 
tions." And  that  learned  author,  in  support 
of  the  proposition,  cites  a  very  large  number 
of  authorities,  both  from  the  federal  and 
state  courts. 

It  Is  fnrth^  contended  by  the  appellant 
that  the  court  erred  in  its  refusal,  at  the 
close  of  all  the  evidence,  to  advise  the  Jury 
to  render  a  verdict  in  favor  of  the  defendant, 
and  In  denying  defendant's  motion  for  a  new 
trial  on  the  ground  that  the  evidence  was  In- 
sufficient to  sustain  the  conviction.  A  review 
of  the  evidence,  however,  satisfies  us  that  the 
Jury  was  fully  warranted  in  finding  the  de- 
fendant guilty,  though  the  evidence  was  en- 
tirely circumstantial ;  there  being  no  direct 
or  positive  evidence  as  to  the  defendant's 
guilt 

The  evidence  In  the  case  is  quite  volumi- 
nous, and  no  useful  purpose  would  be  served 
by  a  reproduction  of  the  same  in  this  opinion. 

The  Judgment  of  the  circuit  court  and  or- 
der denying  a  new  trial  are  affirmed. 


MASON  ▼.   FIRE  ASS'N  OF  PHILADEL- 
PHIA. 

(Supreme  Court  of  South  Dakota.     June  21, 
1909.) 

1.  Appeai,  and  Ebbob  a  907*)— Review- 
Questions  01"  Fact— Findings  of  Ooubt 
AND  Jubt. 

The  fiDdiogs  of  a  court  and  jury  are  pVp- 
sumed  to  be  correct;  and,  unless  there  is  a 
clear  preponderance  of  evidence  against  them, 
they  will  not  be  disturbed  on  appeal. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  SI  2911,  3673-3678;  Dec. 
Dig.  i  907.»] 

2.  Insubancb  (S  665*)— Actions  on  Policies 
— Evidence— Pbejudick  of  Appbaibeb. 

Evidence,  in  an  action  on  a  fire  insurance 
policj;  to  recover  for  loss  thereunder,  and  for 
vacating  an  award  made  by  appraisers,  held  to 


•For  other  caus  m*  mud*  topto  and  lactloii  NUMBER  in  t>*e.  A  Am.  Digs.  1907  to  dato,  A  Roportar  Indexes 


Digitized  by 


Google 


424 


122  NORTHWESTERN  REPORTER. 


(&D. 


show  that  the  appraiser  appointed  b^  the  ia- 
snrance  compaoy  was  not  fair  and  impartial. 
[Ed.   Note.— For   other  cases,   see  "  Insurance, 
Cent.  Dig.  g  1727;    Dec.  Dig.  g  665.*] 

3.  INSUBANCE  (8  572*)— Adjustmewt  of  Loss 

— Pboceedingb   on   Appbaisal. 

While  appraisers  appointed  under  the  terms 
of  an  insurance  policy  may  not  be  required  to 
proceed  with  the  strictness  required  in  a  com- 
mon-law arbitration,  they  are  required  to  act 
with  impartiality,  to  fix  tne  time  for  their  meet- 
ing, and  notify  tlie  parties,  to  proceed  in  a  judi- 
cial manner,  to  hear  evidence,  and  investigate 
the  claims  of  insured,  and  arrive  at  a  reason- 
able, just,  and  fair  conclusion,  after  bearing 
evidence,  as  to  the  rights  of  the  respective  par- 
ties, and  should  act  without  regard  to  the  man- 
ner of  their  appointment. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent.  Dig.  8  1429 ;    Dec.  Dig.  §  572.*] 

o.  Insurance  (§  674*)— Adjustment  or  Loss 

— Apfbaisebs. 

The  board  of  appraisers  appointed  under 
the  terms  of  an  Insurance  policy  are  a  quasi 
court,  and  should  be  disinterested  men. 

[EM.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  S  1426;    Dec  Dig.  g  570.  •] 

5.  Insubance  (g  574*)— Adjustment  or  Loss 
— Repobt  of  Appbaisebs— "Sound  Value." 
Appraisers  of  the  loss  on  insured  property 
were  appointed,  by  the  terms  of  the  agreement 
for  submission,  to  estimate  "the  sound  value 
and  loss"  upon  the  property  damaged  and  de- 
stroyed. In  their  award  they  stated  that  they 
had  carefully  examined  the  premises  and  re- 
mains of  the  property  "in  accordance  with  the 
foregoing  appointment,  and  have  determined 
the  loss  and  damage"  to  be  an  amount  speci- 
fied. Held,  that  the  award  was  not  in  accord- 
ance with  the  submission,  as  the  "sound  value" 
of  property  is  "the  cash  value,  making  an  al- 
lowance for  depreciation  due  to  use,  etc.,  at 
and  immediately  preceding  the  time  of  the  fire." 
[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  g  1430 ;    Dec.  Dig.  g  574.*] 

Appeal  from  Circuit  Court,  Union  County. 

Action  by  A.  O.  Mason  against  the  Fire 
Association  of  Philadelphia.  Judgment  for 
plaintiff,  and  defendant  appeals.    Affirmed. 

M.  H.  Boutelle,  N.^H.  Chase,  and  N.  M. 
W^allace,  for  appellant.  Erlcson  &  Stick- 
ney  and  French  &  OrVlQ,  for  respondent 

CORSON,  J.  This  action  was  Instituted  by 
the  plaintiff  to  recover  the  sum  of  $3,000 
upon  an  Insurance  policy  Issued  to  him  by 
the  defendant  npon  the  stock  of  grain  and 
Hour  and  other  milling  products  contained  in 
a  flouring  mill  at  Beresford,  S.  D.,  and  to 
vacate  and  set  aside  an  award  made  by  ap- 
praisers, awarding  to  the  plaintiff  the  sum  of 
$638  for  his  damage  and  loss  in  the  mill 
building  proi)er,  and  also  a  supplemental 
award,  awarding  to  the  plaintiff  $1,000  for 
damage  and  loss  to  property  in  the  building 
annexed  to  the  said  flouring  mill.  Findings 
and  Judgment  being  in  favor  of  the  plaintiff 
for  the  sum  of  $3,000,  and  vacating  and  set- 
ting aside  said  awards,  and  denying  a  motion 
for  a  new  trial,  the  defendant  has  appealed 
therefrom. 

The  complaint  is  in  the  usual  form,  with 
a  copy  of  the  policy  annexed  thereto,  for  the 


recovery  of  the  amount  claimed  to  be  due 
under  the  same.  The  plaintiff  then  proceeds 
at  length  to  state  the  ground  for  vacating 
and  setting  aside  the  award,  and  the  suppler 
mental  award  made  by  the  appraisers  there- 
in. The  defendant  in  his  answer,  among 
other  defenses,  pleaded  the  award  of  the  ap- 
praisers as  conclusive  in  determining  the 
amount  of  loss  and  damage  to  which  the 
plaintiff  was  entitled,  and  also  set  up  as  a 
defense  that  the  destruction  of  the  property 
by  fire  was  caused  by  the  fraudulent  acts 
of  the  plaintiff.  The  case  was  tried  to  the 
court,  and  a  jury  called  by  it  to  assist  it  in 
determining  certain  issues  presented  by  the 
pleadings ;  and,  as  the  court's  findings  found 
substantially  the  facts  as  alleged  in  the  com- 
plaint, the  material  parts  of  these  findings 
upon  the  two  issues  are  given  as  more  sat- 
isfactory than  the  statement  of  the  allega- 
tions contained  in  the  complaint. 

The  questions  submitted  to  the  Jury,  and 
their  answers  thereto,  are  not  contained  in 
the  abstract,  but  the  court,  in  connection 
with  Its  first  findings,  recites  and  finds  that: 
"The  court  submitted  to  a  Jury  certain  ques- 
tions with  reference  to  the  value  of  grain  and 
grain  products  in  plaintiff's  mill  and  addi- 
tion thereto,  at  the  time  of  its  destruction  by 
fire,  and  with  reference  to  whether  the  plain- 
tiff set,  or  caused  to  be  set,  said  fire;  and, 
the  Jury  having  answered  said  questions,  the 
court  adopts  as  a  part  of  its  findings,  the 
findings  of  the  jury,  and  finds  therefrom, 
and  from  the  evidence  adduced  in  the  action, 
the  following  facts:  (1)  That,  in  accordance 
with  the  findings  of  the  Jury,  there  was,  at 
the  time  of  the  destruction  of  the  plalntifrs 
mill  property  By  fire,  in  the  main  part  of 
plaintiff's  mill  building,  grain  and  grain 
products  of  the  value  of  $3,470.06,  and  in  the 
fiourroom  addition  to  said  main  building 
there  was  at  said  time  grain  products  of  the 
value  of  $2,333.70.  That  said  fire  was  not 
set.  or  caused  to  be  set,  by  the  plaintiff,  A. 
O.  Mason." 

The  court,  after  proceeding  to  find  the 
usual  facts  in  connection  with  the  loss  of  the 
plaintiff,  in  its  seventh  finding  flnds  as  fol- 
lows: "That  on  March  31,  1906,  there  being 
a  disagreement  between  plaintiff  and  defend- 
ant as  to  the  amount  of  sound  value  and 
loss  upon  plalntifTs  property  covered  by  said 
policy  of  insurance,  the  plaintiff  and  defend- 
ant (defendant  acting  through  its  adjuster, 
John  B.  Lee,  Jr.)  entered  into  a  written 
agreement,  whereby  it  was  agreed  that  A.  N. 
Hadley,  of  Indianapolis,  Ind.,  who  was  ap- 
pointed by  said  Lee  on  behalf  of  defendant, 
and  L.  N.  Crlll,  of  Elk  Point,  S.  D.,  who  was 
appointed  by  plaintiff,  should  appraise  and 
estimate  the  sound  value  and  loss  upon  the 
property  covered  by  said  policy  of  Insurance, 
and  damage  to  said  property  destroyed  by 
said  fire." 


•For  otiter  cases  ■«•  lame  topic  and  lection  NUMBER  Is  Dec.  *  Am.  Digs.  1907  to  date,  4s  Reporter  Indexee 


Digitized  by 


Google 


8.D.) 


ilAaOV  ▼.  FIRB  ASS'N  OF  PHILADELPHIA. 


426 


The  court  by  findings  0,  10,  11,  14,  16,  18, 
and  17,  finds  as  follows:  "That  thereafter, 
and  on  the  2Sth  day  of  Jnly,  1906,  said  Had- 
ley  and  said  Crlll  selected  and  appointed  S. 
E.  Brookman,  of  Vermillion,  S.  D.,  as  umpire, 
to  act  with  them  in  appraising  the  sound  val- 
ue and  loss  or  damage  of  said  property,  in 
cases  of  dltTerence  between  said  Hadley  and 
CrlU.  (10)  That  at  the  time  of  the  appoint- 
ment of  said  Hadley,  as  an  appraiser,  on  be- 
half of  defendant,  said  John  B.  Lee,  Jr.,  stat- 
ed and  represented  to  plaintiff  that  said  Had- 
ley would  be  a  competent  and  disinterested 
appraiser;  that  he  was  an  old  mlUman,  and 
was  fair  and  impartial;  that  plaintiff  relied 
npon  and  believed  said  representations,  and 
In  consequence  thereof  made  no  objection  to 
tbe  appointment  of  said  Hadley  as  defend- 
ant's appraiser.  (11)  That  said  Hadley  was 
In  fiict  a  machinist,  and  a  man  who  for  many 
years  had  been  employed  by  dlflTerent  insur- 
ance companies  as  arbitrator  and  appraiser 
In  determining  losses  under  policies  Issued 
by  said  companies;  that  said  Hadley  for 
years  had  more  ot  snch  business  than  he  car- 
ed to  do,  and  was  not  a  fair  or  impartial 
appraiser,  at  the  time  of  his  appointment, 
or  at  the  time  he  acted  as  an  appraiser  in 
tills  action."  "(14)  That  on  July  27,  1906, 
said  Hadley,  CrlU,  and  Brookman  were  at 
Sioux  City,  Iowa,  for  the  purpose  of  esti- 
mating and  determining  the  amount  of  sound 
▼alue  and  loss  upon  the  property  of  plaintiff 
damaged  and  destroyed  by  said  fire.  That 
plaintiff  was  also  at  Sioux  City  at  said  time, 
and  bad  with  him  a  book  containing  monthly 
Invoices  of  grain  and  grain  products  taken 
on  or  abont  the  first  day  of  each  month,  from 
tbe  month  of  May  to  the  month  of  December, 
IOCS,  inclusive,  and  also  bad  a  list  contain- 
ing the  names  of  many  persons  residing  at 
Beresford,  who  plaintiff  claimed  knew  about 
tbe  quantity  of  grain  and  grain  products 
which  were  in  said  mill,  and  addition  there- 
to, at  the  time  of  said  fire,  and  would  testify 
with  reference  thereto,  and  stated  to  said 
Hadley  that  he  was  there  to  give  evidence 
as  to  the  quantity -and  value  of  said  property. 
(1.^  That  said  Hadley  refused  to  receive  any 
evidence  from  plaintiff  bearing  upon  the 
amount  of  sound  value  or  loss  of  plaintiff's 
said  property.  •  •  •  (16)  That  one  of  said 
awards  signed  by  said  Hadley  and  Brookman 
stated  that  they  had  carefully  examined  the 
premises  and  remains  of  the  property  de- 
scribed in  said  policy  of  insurance  (being  the 
policy  sued  on  in  this  action),  and  had  de- 
termined plaintlfTs  loss  and  damage  to  be 
$G38,  but  said  award  falls  to  state  what  the 
sound  value  of  said  property  of  plaintiff 
described  in  said  policy  of  insurance  was  at 
tbe  time  of,  and  Immediately  preceding,  said 
Are.  or  at  any  time.  That  an  additioual  or 
supplemental  award,  signed  by  said  Hadley 
and  said  Brookman,  states:  'We,  tbe  under- 
signed, appraisers  of  the  value  and  damage 
caused  by  fire  to  mill  property  of  A.  O. 


Mason,  Beresford,  S.  D.,  find  a  nnmber  of 
Items  which  are  not  mentioned  in  the  differ- 
ent policy  forms  attached  to  the  several  ap- 
praisemeift  agreements,  in  accordance  to 
which  we  were  sworn  to  appraise.  Our  ap- 
praisement ot  their  value  and  damages  are  as 
follows:  •  •  •  On  stock  in  stockhouse — 
$1,000.00.'  (By  'stock  tn  stockhouse'  was 
meant  flour  and  mill  products  In  the  flour- 
room  addition  to  main  portion  of  mill.)  (17) 
That  said  Hadley  and  Brookman  did  not  have 
before  then,  or  receive  any  sworn  evidence 
with  reference  to,  the  sound  valne  or  loss  of 
grain  and  grain  products  destroyed  by  said 
fire,  except  an  affidavit  signed  and  sworn  to 
by  the  plaintiff  and  one  Phlpps,  which  fixed 
the  value  of  said  property  at  a  little  more 
than  $0,000." 

From  its  findings  the  court  concludes  as 
follows:  "(1)  That  the  flourroom  addition  to 
the  main  part  of  said  mill  building  was  a 
part  ot  said  mill,  and  tbe  contents  thereof 
were  covered  by  defendant's  policy  of  Insur- 
ance. (2)  That  the  awards  signed  by  A.  N. 
Hadley  and  S.  E.  Brookman  were  not,  and 
are  not,  binding  npon  plaintiff.  (3)  That 
plaintiff  Is  entitled  to  Judgment  against  de- 
fendant for  13,000,  with  Interest  thereon  at 
7  per  cent  per  annum  from  the  12th  day  of 
February,  1906,  and  for  Ms  costs  In  this  ac- 
Uon." 

It  is  contended  by  the  appellant:  First 
that  tbe  findings  of  the  Jnry  and  court  that 
the  destruction  of  the  property  was  not  caus- 
ed by  the  plaintiff  is  not  supported  by,  and 
Is  contrary  to,  the  evidence  in  the  case; 
second,  that  the  evidence  tending  to  impeach 
the  awards  was  insufficient  and  that  the 
awards  should  bave  been  held  conclusive  as 
to  the  amonnt  of  loss  and  damage  sustained 
by  the  plaintiff.  It  is  Insisted  by  tbe  re- 
spondent In  support  of  the  findings  of  the 
Jury  and  the  court  that  there  was  not  only 
no  preponderance  of  evidence  in  favor  of  the 
appellant  upon  tbe  Issue  as  to  the  cause  of 
the  fire,  but  that  there  was  a  clear  pre- 
ponderance of  the  evidence  In  favor  of  tbe 
respondent  and  bis  claim  that  the  fire  was 
accidental  and  without  his  fault  And  it  Is 
further  Insisted  by  the  respondent  that  the 
evidence  tending  to  prove  that  Hadley,  the 
appraiser  appointed  by  the  appellant,  was 
biased  and  prejudiced  in  favor  of  the  appel- 
lant Is  clearly  sustained  by  the  evidence,  as 
was  also  the  fact  that  the  plaintiff  was  de- 
prived of  an  opportunity  to  present  to  the 
appraisers  bis  evidence  as  to  the  value  of 
the  property  contained  in  the  mill  and  an- 
nex at  the  time  of  the  fire,  and  that  the 
awards  were  made  without  a  proper  ex- 
amination by  them  of  plalntifTs  evidence. 
We  are  inclined  to  agree  with  the  respondent 
in  the  propositions  asserted  by  him.  Pre- 
sumptively the  findings  of  the  court  and 
Jury  are  correct;  and,  unless  there  is  a  clear 
preponderance  of  the  evidence  against  such 
findings,  they  will  not  be  disturbed  by  this 


Digitized  by 


Google 


426 


122  MORTHWESt£;RN  REPOBT£XL 


'(S.D. 


court  The  CTldence  in  this  case  as  to'  the 
cause  of  the  flre  Is  quite  voluminous,  and  no 
useful  purpose  would  be  served  by  Its  re- 
production In  this  opinion.  But  after  a  care- 
ful examination  of  the  same  we  are  of  the 
opinion  that  the  court  and  Jury  were  fully 
justified  In  finding  that  the  flre  was  acci- 
dental, and  was  not,  In  any  manner,  caused 
by  the  acts  of  the  respondent.  The  findings 
of  the  court  also  that  Hadley,  the  appraiser 
appointed  by  the  appellant,  was  not  a  fair 
and  Impartial  appraiser,  at  the  time  of  his 
appointment,  or  at  the  time  he  acted  as  an 
appraiser  In  the  action,  seems  to  be  fully 
sustained  by  the  evidence. 

S.  P.  Grey,  a  witness  on  the  part  of  the 
plaintiff,  whose  deposition  was  taken  at  In- 
dianapolis, Ind.,  testified  that  he  was  man- 
ager of  the  Indianapolis  Machinery  Ex- 
change; that  he  knew  A.  N.  Hadley;  that 
he  knew  Hadley  was  employed  by  different 
insurance  companies  to  act  as  appraiser  and 
arbitrator  of  Insurance  losses  by  flre;  that 
he  flrst  knew  of  his  acting  in  that  capacity 
in  1898,  and  that  he  last  knew  him  as  acting 
in  that  capacity  about  one  year  ago;  that 
he  had  a  talk  with  him,  and  that  he  knew 
that  he  was  acting  for  several  insurance 
companies.  On  bis  cross-examination  he  stat- 
ed that  Hadley  had  told  him  that  acting 
as  insurance  appraiser  was  a  great  part  of 
his  business.  On  his  re-examination  he  tes- 
tified that  Hadley  told  him  he  had  acted  in 
a  great  many  instances  for  insurance  com- 
panies. He  also  testifled  that  said  Hadley 
said  "he  had  more  of  that  kind  of  business 
to  do  than  he  cared  to  have,"  and  that  in 
his  conversation  with  him  Hadley  talked 
over  a  great  many  cases  In  which,  he  stated, 
he  had  acted  for  insurance  companies  at 
different  places.  The  conduct  of  Hadley  as 
an  appraiser  in  this  case  clearly  shows  that 
he  was  biased  and  prejudiced  against  the 
respondent,  as  he  refused  to  allow  the  re- 
spondent to  Introduce  any  evidence  as  to  the 
amount  of  his  loss,  or  to  hear  any  statement 
from  the  plaintiff  himself  as  to  such  loss. 

Plaintiff  and  respondent  testifletl:  "I  was 
never  called  upon  to  give  any  evidence  be- 
fore the  board  of  appraisers,  consisting  of 
Mr.  Hadley,  Mr.  Crlll,  and  Mr.  Brookman. 
I  asked  the  privilege  of  submitting  evidence 
before  this  board  at  Sioux  City,  when  the 
appraisal  was  being  made  there  at  the  West 
Hotel  in  that  city.  *  •  •  I  went  Into  the 
West  Ilotel  with  this  invoice  book,  which  I 
gave  to  Mr.  Crlll,  and  told  him  to  hand  It 
to  Mr.  Hadley,  which  he  did,  and  called  his 
attention  to  It.  Mr.  Hadley  said  he  did  not 
care  anything  about  that,  and  Mr.  Crlll  call- 
ed for  me,  and  I  took  the  book  out  At  the 
time  I  went  up  there,  Mr.  Hadley  came  to 
the  door,  and  looked  out,  and  then  shut  the 
door  in  my  face  ^nd  went  back.  I  think 
Mr.  Hadley  asked  me  if  Mr.  Crill  and  I 
did  not  want  to  consult  together,  and  I  said, 
'No.'    He  stepped  out.  and  Crill  and  I  talk- 


ed about  10  minutes,  and  thto  Ifr.  Hadley 
came  back.  •  •  •  Hadley  further  said: 
'I  am  not  here  for  the  purpose  of  appraising 
with  you.  Mr.  Crlll  and  I  are  doing  this.' 
I  said:  *I  am  here  to  give  any  evidence  as 
to  the  stock  in  the  mill,  and  I  am  prepared; 
but  If  you  will  not  hear  It  I  beg  your  par- 
don, and  I  will  get  out' — and  I  did  get  out 
right  then  and  there." 

It  also  appears  from  the  testimony  of  Mr. 
Crlll  that  the  board  of  appraisers  as  such 
never  had  the  plaintiff  before  it  and  that 
Mr.  Hadley  seemed  quite  angry  at  the  plain- 
tiff's request  to  be  heard  by  himself  and 
his  witness  before  the  appraisers.  No  one  we 
think  can  read  the  testimony  In  this  case 
as  to  the  statements  and  conduct  of  Mr. 
Hadley  without  arriving  at  the  conclusion 
that  he  was  a  biased  and  prejudiced  apprais- 
er, and  that  the  representations  made  to  the 
plaintiff  by  Mr.  Lee,  the  general  agent  of 
the  company,  were  not  an  entirely  truthful 
statement  as  to  the  fairness  and  Impartiality 
of  Mr.  Hadley.  The  proceedings  of  the  ap- 
praisers Hadley  and  Brookman  in  not  noti- 
fying the  plaintiff  of  the  time  and  place  for 
a  hearing,  and  in  refusing  to  hear  him  and 
his  witnesses,  were  certainly  very  extra- 
ordinary, and  are  such  as  cannot  be  sanc- 
tioned by  this  court  While  appraisers  ap- 
pointed under  the  terms  of  an  insurance  pol- 
icy may  not  be  required  to  proceed  with  that 
strictness  required  in  common-law  arbitra- 
tion, they  are  still  required  to  act  with  im- 
partiality, and  to  hear  evidence  and  investi- 
gate the  claims  of  the  plaintiff,  and  to  ar- 
rive at  a  reasonable.  Just  and  fair  con- 
clusion, after  hearing  such  evidence  as  to  the 
rights  of  the  respective  parties.  It  is  true 
that  in  the  articles  of  submission  to  the 
appraisers  In  this  case  it  was  not  stipulated 
that  notice  should  be  given,  or  a  hearing 
had,  but  clearly  justice  requires  that  apprais- 
ers so  appointed  shall  fix  the  time  for  their 
meeting,  of  which  the  parties,  respectively, 
should  be  notified,  and  that  they  should  hear 
and  consider  such  evidence  as  should  be  In- 
troduced by  the  respective  parties  on  such  a 
hearing.  The  award  of  the  appraisers  in 
this  case,  including  both  the  $038  In  the  first 
award  and  the  $1,000  in  the  supplemental 
award,  was  less  than  one-third  of  the  amount 
found  to  be  the  loss  of  the  plaintiff  by  the 
jury  and  the  court  on  the  trial.  Clearly 
such  a  gross  discrepancy  can  only  be  ac- 
counted for  on  the  theory  that  Hadley  and 
Brookman  failed  to  accept  and  consider  the 
evidence  tendered  to  them  by  the  plaintiff; 
and  which  they  refused  to  receive. 

The  board  of  appraisers,  including  the 
umpire,  constitutes  a  quasi  court  governed 
by  rules  applicable  to  common-law  arbltra 
tors,  and  should  constitute  a  body  of  dis- 
interested men,  whose  business  it  is  to  pro- 
ceed in  a  Judicial  and  impartial  manner  to 
ascertain  the  facts  in  controversy,  without 
regard  to  the  manner  in  which  the  duty  boa 


Digitized  by  LjOOQIC 


8.D.). 


UASON  T.  FIRE  ASS'N  OF  PHILADELPHIA. 


42T 


been  devolved  npon  them.  Such  appralsera 
are  bound.  In  the  execution  of  their  trust,  to 
look  to  the  true  merits  of  the  matter  submit- 
ted to  their  Judgment  The  appraisers  and 
umpire  are  alike  the  agents  of  both  parties, 
and  not  of  one  party  alone,  and  are  bound  to 
exercise  a  high  degree  of  Judicial  impartial- 
ity. Under  our  standard  policy,  the  appoint- 
ment of  appraisers  being  compulsory,  it  is 
highly  important  that  the  men  selected  should 
In  every  sense  t>e  disinterested,  and  that  the 
parties  who  are  thus  compelled  to  submit 
the  question  as  to  the  amount  of  the  loss 
or  damage  to  such  appraisers  should  have 
an  opportunity  to  be  fully  heard  before  them, 
and  to  submit  such  proofs  as  may  be  neces- 
sary to  support  their  respective  claims. 
While  possibly  the  appraisers  may  not  be 
1)onnd  to  adhere  to  the  strict  rules  required 
by  a  court,  they  should  nevertheless  be  re- 
quired to  give  the  parties  a  reasonable  and 
fair  opportunity  to  submit  tbe  evidence  that 
may  be  deemed  necessary  by  them  in  support 
of  their  respective  claims  affecting  the 
amount  of  the  loss  and  damage. 

In  8  Cyc.  748,  under  the  head  of  "Irregu- 
larities In  Proceedings,"  the  learned  author 
on  Arbitration  and  Award  says:  "While 
arbitrators  are  not  bound  by  tbe  strict  and 
technical  rules  of  law,  they  must  neverthe- 
less have  a  due  regard  to  natural  Justice  and 
the  rights  of  the  parties;  and  Irregularities 
in  their  proceedings,  whereby  these  things 
are  arbitrarily  disregarded,  constitute  such 
misconduct  as  will  necessitate  the  setting 
aside  of  the  award.  For  example,  an  award 
may  be  set  aside  because  the  arbitrators  pro- 
<-eeded  without  notifying  a  party  or  giving 
him  an  opportunity  to  be  heard;  refused  to 
postpone  the  hearing  when  It  was  plainly 
their  duty  to  do  so;  refused  to  hear  compe- 
tent and  material  evidence;  received  evi- 
dence in  the  absence  of,  and  without  the  con- 
sent of,  a  party;  refused  to  allow  one  of 
the  arbitrators  to  take  part  in  their  deliber- 
ations; improperly  delegated  their  author- 
ity; or  chose  an  umpire  by  lot."  Jackson  v. 
Roane,  90  Oa.  669,  16  S.  E.  650,  35  Am.  St 
Rep.  238;  Shlvely  v.  Knoblock,  8  Ind.  App. 
433,  35  N.  E.  1028;  Hills  v.  Home  Ins.  Co., 
129  Mass.  345;  Produce  Refrigerator  C!o.  v. 
Norwich  Union  Fire  Ins.  Soc.,  91  Minn.  210, 
«7  N.  W.  875,  98  N.  W.  100;  Royal  Ins.  C!o. 
V.  Parlin  ft  Orendorff  Co.,  12  Tex.  Civ.  App. 
572,  34  S.  W.  401 ;  Glover  v.  Rochester  Ger- 
man Ins.  Oo.,  11  Wash.  143,  39  Pac  380; 
Bradshaw  v.  Agriculture  Ins.  Co.,  137  N.  T. 
138,  32  N.  B.  1055;  Redner  v.  N.  T.  Fire  Ins. 
Co.,  92  Minn.  306,  99  N.  W.  886 ;  Chrlstlanson 
V.  Norwich  Union  Fire  Ins.  Co.,  84  Minn. 
526,  88  N.  W.  16,  87  Am.  St  Rep.  379. 

In  Richards  on  Insurance  Law  (3d  Ed.)  421, 
that  learned  author  stated  the  rule,  under  the 
head  of  "Appfaisers,  Competent,  Disinterest- 
ed," as  follows:  "The  appraisers  and  um- 
pire must  be  competent  and  disinterested. 
'Disinterested'  does  not  refer  simply  to  an 


absence  of  pecuniary  Interest  A  disinter- 
ested appraiser  Is  one  who  Is  free  from  bias 
or  prejudice  towards  either  party.  While 
theoretically  the  appraisers,  it  is  said,  are 
supposed  to  act  in  a  quasi  Judicial  capacity, 
and  wholly  without  partisanship,  both  In 
their  selection  of  umpire,  and  in  the  conduct 
of  the  appraisal,  nevertheless  In  practice  each 
appraiser  Is  apt  to  be  a  zealous  advocate  be- 
fore the  umpire  to  the  end  tbat  the  inter- 
ests of  the  party  appointing  him  may  be  ad- 
vanced, and  not  overlooked;  and,  within  lim- 
its, such  an  attitude  seems  to  be  recognized 
by  the  courts  as  legitimate,  and  indeed  un- 
avoidable. He  is,  however,  a  Judicial  officer, 
rather  than  an  agent  and  is  under  obliga- 
tions to  be  fair  and  disinterested.  The  ap- 
pointment of  a  biased  or  unsuitable  apprais- 
er, coupled  with  concealment  of  his  char- 
acter, is  ground  for  vacating  the  award. 
But  if,  with  knowledge  of  his  objectionable 
disposition  or  lack  of  competency,  a  party 
proceeds  with  the  appraisal,  such  conduct 
amounts  to  a  waiver,  and  the  award  will  be 
binding  upon  both  parties."  Hall  v.  Western 
Assur.  Co.,  133  Ala.  637,  32  South.  257 ;  Ins. 
Co.  V.  Hegewald,  161  Ind.  631,  66  N.  B.  902; 
Kleman  v.  Dutchess  County  Mut  Ins.  Co., 
150  N.  T.  190,  44  N.  E.  698;  Canfleld  v.  Wat- 
ertown  Fire  Ins.  Co.,  55  Wis.  419,  18  N.  W. 
252;  Kaiser  v.  Hamburg-Bremen  Fire  Ins. 
Co.,  69  App.  Div.  525,  69  N.  T.  Supp.  344,  and 
Id.,  172  N.  T.  664,  65  N.  B.  1118;  Continental 
Ins.  Co.  V.  Garrett,  125  Fed.  589,  60  C.  C.  A. 
395.  In  Kaiser  v.  Hamburg-Bremen  Fire  Ins. 
Co.,  supra,  tbe  award  of  tbe  appraisers  was 
that  the  plaintifT  was  entitled  to  $3,031,  and, 
in  a  §uit  by  the  Insured  to  have  tbe  award 
set  aside,  where  the  referee  found  the  dam- 
ages amounted  to  $3,930.28,  and  that  the 
evidence  showed  that  the  loss  was  in  excess 
of  the  latter  sum,  it  was  held  tbat  the  award 
was  so  much  below  tbe  loss  as  to  sustain  a 
decision  setting  the  award  aside;  it  appear- 
ing that  the  contention  as  to  the  appraiser 
was  well  taken. 

It  further  appears,  by  an  examination  of 
the  agreement  for  the  submission  to  the  ap- 
praisers, that  they  were  appointed  to  appraise 
and  estimate  "the  sound  value  and  loss"  upon 
the  property  damaged  and  destroyed  by  the 
fire,  and  that  the  term  "sound  value  and  loss" 
Is  repeated  some  three  times  In  the  submis- 
sion. In  the  award,  however,  the  appraisers 
find  as  follows:  "To  the  parties  in  interest : 
We  bave  carefully  examined  the  premises 
and  remains  of  tbe  property  hereinbefore 
speclfled  in  accordance  with  the  forgoing  ap- 
pointment, and  have  determined  the  loss  and 
damage  to  be  $038.  Witness  our  hands  at 
Sioux  City  this  28th  day  of  July,  1906.  A.  N. 
Hidley,  S.  E.  Brookman,  Appraisers."  It 
wll>  *aus  be  seen  tbat  no  statement  Is  made 
therein  tbat  they  had  appraised  tbe  "sound 
value"  of  tbe  property.  Sound  value  of  the 
property  is  defined  to  be  "the  cash  value, 
making  an  allowance  for  depreciation  due  to 


Digitized  by  LjOOQ  l€ 


428 


122  NORTHWESTERN  REPORTER. 


(S.D. 


use,  etc,  at  and  Inunediately  preceding  the 
time  of  the  fire."  Continental  Ins.  Co.  T. 
Garrett,  supra.  This  definition  Is  plainly  im- 
plied by  the  paragraphs  contained  in  the  sub- 
mission. In  the  case  at  bar  the  court  finds 
that  the  award  Is  not  In  accordance  with  the 
submission,  because  the  "sound  ralue"  has 
not  been  estimated  or  appraised.  In  the 
case  last  above  referred  to  it  was  held  that 
this  failure  to  find  "the  sound  value"  of  the 
property  was  a  fatal  defect  in  the  award. 
And  that  learned  court  farther  held  that 
faUure  to  give  notice  to  the  parties  of  the 
time  and  place  of  the  appraisal,  so  as  to  per- 
mit the  Introduction  of  evidence,  rendered 
the  award  void.  The  trial  court  was  dear- 
ly right,  therefore.  In  holding  the  award  void, 
and  vacating  and  setting  aside  the  same. 

The  findings  and  Judgment  of  the  circuit 
court  being  fully  sustained  by  the  evidence, 
its  judgment  and  order  denying  a  new  trial 
are  afllrmed. 


NORTHWEST   THRESHER   CO.    v.    MEH- 
LOFF  et  al. 

(Supreme  Court  of  South  Dalcota.     June  26, 

1900.) 

Sales  (§8   118,   126*)— Rescissioit  bt  Pub- 

CHASEB. 

Plaintiff  sold  defendants  a  threshing  out- 
fit, a  price  being  fixed  for  each  article,  with 
provision  that  breach  of  warranty  as  to  one 
part  should  not  aSect  the  binding  effect  of  the 
contract  as  to  the  other  parts,  that  defendants 
should  have  a  certain  time  to  try  the  machine, 
that  if  it  did  not  worli  properly  during  such 
trial  period  they  should  eive  plaintiff  notice, 
and  that,  on  plaintiff  sending  an  expert  to  as- 
sist in  getting  it  to  work,  it  should  be  given  a 
two  days'  trial,  and  whatever  parts  of  the  ma- 
chinery were  not  as  warranted  defendants 
should  then  return  to  plaintiff,  with  notice,  and 
plaintiff  might  then  furnish  another  part,  or 
require  defendants  to  return  the  other  parts, 
and  then  furnish  other  machinery  in  its  place, 
or  refund  the  cash  and  notes  received  therefor, 
the  furnishing  of  another  machine  or  part  to 
be  a  complete  fulfillment  of  the  warrantv,  and 
the  use  of  the  machine  after  the  secona  trial 
of  two  days  to  be  conclusive  that  it  was  as 
warranted.  Held,  that  defendants,  after  the 
second  or  two  days'  trial,  not  having  notified 
plaintiff  of  a  defect  in  any  part,  and  given 
plaintiff  a  chance  to  replace  defective  parts,  but 
having  continued  to  use  the  machine,  and  sub- 
sequently returned  the  whole  outfit,  though  part 
at  least  of  it  was  all  right,  the  attempted  re- 
scission was  ineffectual,  not  only  because  of 
the  delay,  but  because  they  had  a  right  to  re- 
turn only  the  defective  parts. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent. 
Dig.  IS  293,  813-317;   Dec  Dig.  {{  119,  126.*] 

Appeal  from  Circuit  Court,  McPberson 
County. 

Action  by  the  Northwest  Thresher  Com- 
pany against  John  Meblotf  and  others. 
From  a  judgment  for  defendants  and  from 
an  order  denying  a  new  trial,  plaintiff  ap- 
peals.   Reversed,  and  new  trial  granted. 

Bates  &  Parliman,  for  appellant.  C.  H. 
Barron  and  John  H.  Perry,  for  respondents. 


WHITING,  J.  This  action  was  brought 
In  the  circuit  court  by  the  plaintiff  and  ap- 
pellant, manufacturers  of  threshing  ma- 
chines, against  the  defendants  and  respond- 
ents, purchasers  of  a  threshing  outfit,  to  re- 
cover on  two  of  three  notes  given  to  plain- 
tiff by  defendants;  the  third  note  not  be- 
ing due  at  the  time  of  suit  The  complaint 
was  in  ordinary  form  of  complaint  to  re- 
cover on  notes.  The  answer  admitted  the 
execution,  deliver^,  and  nonpayment  of  the 
notes,  and  then  alleges  that  such  notes  were 
given  In  part  payment  of  threshing  rig,  and 
alleges  an  express  warranty  as  to  such  rig, 
that  there  was  a  breach  of  such  warranty, 
that  such  thi;eshing  rig  was  of  no  value, 
that  by  reason  thereof  defendants  returned 
the  rig  to  plaintiff,  and  that  the  considera- 
tion for  the  notes  had  wholly  failed.  Ver- 
dict was  for  the  defendants,  and,  motion  for 
new  trial  being  denied,  the  plaintiff  appeal- 
ed to  this  court  from  order  denying  new 
trial,  and  from  the  judgment  entered  on  the 
verdict 

There  are  numerous  assignments  of  er- 
ror In  the  record,  but  under  the  view  we 
take  of  the  case.  It  Is  unnecessary  to  note 
them  in  detail,  it  will  be  noted  that  there 
was  no  counterclaim  of  damages  for  breach 
of  warranty,  that  the  defenses  were  plea  of 
rescission  on  account  of  breach  of  warranty, 
and  plea  of  failure  of  consideration.  Under 
the  instructions  of  the  court,  the  case  seems 
to  have  been  submitted  to  the  jury  upon  the 
propositions  of  whether  there  had  been  a 
rescission  by  the  defendants,  and  whether 
they  had  complied  with  all  of  the  conditions 
of  the  contract  necessary  to  entitle  them  to 
rescind.  The  threshing  ontflt  was  sold  un- 
der an  order  or  contract  in  form  similar  in 
many  respects  to  those  that  have  been  be- 
fore this  and  other  courts  frequently,  where- 
in it  is  provided  that  the  purchaser  shall 
have  a  certain  number  of  days  within  which 
to  try  the  machine;  that  If  said  machine  Is 
kept  after  such  period  without  notice  of  de- 
fects, it  Is  a  waiver  of  any  breach  of  war- 
ranty; that  in  case  machine  does  not  work 
properly  during  such  trial  period,  then  the 
purchaser  shall  give  a  certain  notice  to  the 
seller.  The  order  Involved  in  this  case  also 
provided  that  If  notice  was  given  of  defect 
of  machine  or  Its  working  and  an  expert 
was  sent  to  assist  in  getting  the  machine  to 
work,  the  machine  shall  be  given  "a  fair 
trial  of  two  days,  and  whatever  part  at  said 
machinery  is  not  as  warranted  or  represent- 
ed he  (purchaser)  -hall  then  return  such  part 
to  where  he  got  It  giving  the  company  Im- 
mediate written  notice  at  Stillwater,  Minn., 
of  such  return,  and  the  Northwest  Thresher 
Co.  may  either  furnish  another  part  or  may 
require  the  return  by  the  purchaser  of  the 
remainder  of  such  machinery,  and  then  fur- 
nish other  machinery  in  its  place  or  refund 
cash  and  notes  it  received  for  the  same. 


•For  other  cages  see  same  topic  and  lectlon  NUMBER  in  Dec.  *  Am.  Digs.  1907  to  date,  *  Raportar  Iaa«xes 


Digitized  by  VjOOQ  l€ 


aD.) 


NORTHWEST  THRESHER  CO.  ▼.  MEHLOFF. 


429 


thereby  rescinding  the  contract  pro  tanto 
or  In  whole  aa  the  case  may  be,  and  thereby 
rdeaslng  the  company  from  any  further 
liability  whatever  herein;  the  furnishing 
another  machine  or  part  shall  be  construed 
to  be  a  complete  fulfillment  of  this  war- 
ranty." The  order  provided,  also,  that  the 
use  of  the  machine  after  the  "second  trial  of 
two  days"  should  be  conclusive  evidence 
that  the  same  was  as  warranted.  From  the 
evidence  It  appears  that  the  machine  did  not 
work  properly  when  first  tried.  Question  is 
raised  by  appellant  as  to  whether  or  not 
proper  or  any  notice  was  ever  given  it  of 
such  failure  as  required  by  the  order;  but 
while  the  order  in  this  case  Is  In  many  re- 
spects different  from  that  In  Peters  et  al. 
v.  Piano  Mfg.  Co.  (S.  D.)  110  N.  W.  783,  and 
therefore  what  was  held  in  that  case  as  re- 
gards notice  other  than  that  provided  for 
in  the  contract  would  have  little  if  any  ap- 
plication to  the  facts  in  this  case,  yet,  for 
the  purposes  of  this  appeal,  we  will  presume 
that  BUfBdent  notice  of  defects  In  working 
of  the  threshing  rig  was  received  by  the 
plaintifF,  and  that  It  sent  a  man  to  assist  in 
trying  to  get  the  machine  to  work  properly. 
This  occurred  if  at  all  in  the  early  part  of 
September.  The  evidence  shows  that  after 
that  the  rig  failed  to  do  satisfactory  work, 
but  there  is  no  evidence  to  show  that  after 
a  two  days'  trial  or  at  any  later  period  the 
defendants  ever  notified  the  plaintiff  of  a 
defect  in  any  part  of  the  machine.  There 
is  evidence  to  show  that  about  October  13th 
a  local  agent  of  the  plaintiff  notified  it  in  a 
general  way  that  the  machine  did  not  work 
right,  but  nothing  to  show  that  attention 
was  called  to  which  part  of  the  machine 
seemed  to  be  defective.  The  defendants,  ap- 
parently believing  the  trouble  was  mainly 
with  the  horse  power  bought  as  the  motive 
power  for  the  rig,  changed  the  separator  so  as 
to  use,  and  did  use,  an  engine  to  run  the  rig. 
But  still  the  rig  did  not  work  properly,  and 
the  defendants  finally  hauled  the  rig  to  the 
town  where  they  got  it,  and  left  it  with  the 
local  agent.  They,  however,  never  notified 
the  plaintiff  of  any  delivery  of  the  rig  or 
intent  to  rescind  contract,  neither  did  the 
local  agent  send  any  such  notice.  The  local 
agent  called  as  witness  by  defendant  claims 
that  on  the  same  day  the  rig  was  returned 
a  collector  in  plaintiff's  employ  called  on 
blm,  and  that  the  collector  wrote  out  a  full 
report  to  the  plaintiff  in  regard  to  the  re- 
turn of  this  rig,  but  such  agent  did  not  know 
that  such  report  was  ever  mailed  to  the 
plaintiff.  Plaintiff's  testimony  Is  to  the  ef- 
fect that  it  never  received  any  written  no- 
tice from  any  one  of  the  return  of  such  rig. 
Plaintiff  moved  for  directed  verdict  when 
defendants  rested  their  case  and  ftlso  when 
all  the  evidence  was  in,  and  it  has  properly 
preserved  the  record  on  the  error,  If  any,  in 
the  trial  court's  failure  to  so  direct  verdict 


We  are  of  the  opinion  that  the  court  should 
have  directed  a  verdict  as  asked.  The  provi- 
sions of  the  order  in  question  were  valid  and 
binding  on  both  parties,  and,  as  long  as  pur- 
chasers will  sign  these  orders,  they  must 
abide  by  them.  The  right  to  be  notified  of 
the  defects  in  this  machinery  after  the  "sec- 
ond" or  "two  days'  "  trial  was  a  very  material 
right  so  far  aa  plaintiff  was  concerned.  De- 
fendants had  no  right  whatever  at  that  time 
to  rescind  the  sale,  but  were  bound  to  return 
the  defective  rig  or  parts  thereof  to  place 
where  they  got  It  to  notify  the  plaintiff  of 
such  return,  and  then  the  plaintiff  could 
elect  to  return  the  notes  or  replace  defective 
machines  with  others.  The  contract  or  order 
In  this  case  was  divisible  in  its  nature. 
Each  separate  part  of  the  threshing  rig  had 
a  price  fixed  thereon ;  the  items  for  the  sev- 
eral parts  going  to  make  up  the  total  consid- 
eration for  the  rig.  The  order  provided  that 
any  breach  of  warranty  as  to  one  part 
should  in  no  manner  affect  the  binding  effect 
of  the  order  as  to  the  other  parts  of  the  rig, 
and  that,  in  case  part  of  the  rig  was  de- 
fective, that  part  only  could  be  returned  ex- 
cept at  the  option  of  the  plaintiff.  The  con- 
tract in  this  case  in  this  respect  was  almost 
the  counterpart  of  that  In  the  case  of  West- 
brook  V.  Reeves  &  Co.,  133  Iowa,  655,  111  N. 
W.  11,  and  the  facts  are  very  similar,  except 
that  In  the  Iowa  case  the  purchaser  on  re- 
turn of  machinery  gave  notice  thereof  and 
demanded  return  of  notes,  while  in  case  at 
bar  the  defendants  neither  gave  notice  of 
return  as  required  In  order  or  made  any  de- 
maud  for  return  of  notes.  What  was  said  in 
the  Iowa  case  well  applies  here,  for  the  rea- 
son that  in  case  at  bar  it  stood  admitted 
that,  at  least  one  part  of  the  rig  was  all 
right.  The  Iowa  court  said:  "There  is  no 
claim  of  any  defect  save  in  the  engine — at 
least  no  other  defects  can  be  relied  upon  in 
this  case — but  plaintiff.  Instead  of  returning 
the  engine  that  defendant  might  exercise  Its 
option  to  furnish  another  or  to  give  credit 
therefor  upon  settlement,  returned  all  the 
property,  and  defendant  had  no  opportunity 
to  exercise  its  election,  but  was  forced  either 
to  accept  It  all  or  to  decline  all;  and  this 
notwithstanding  the  express  provision  of  the 
warranty  that  defects  or  failure  in  one  part 
should  not  condemn  any  other  part  At  no 
time  did  plaintiff  comply  with  the  terms  of 
the  contract,  and,  had  defendant  accepted  the 
return  of  the  machinery,  It  would  have  been 
required  against  the  plain  provisions  of  its 
engagement  to  have  supplied  a  new  outfit  or 
given  credit  for  the  entire  purchase  price, 
and  to  return  to  plaintiff  all  that  it  received 
from  him.  Indeed,  under  the  terms  of  the 
offer  to  return,  defendant  was  given  no  right 
of  election  to  supply  a  new  outfit  It  had 
no  alternative  except  to  return  the  notes  re- 
ceived from  plaintiff  and  the  old  machinery 


Digitized  by  VjOOQ  l€ 


430 


122  NOBTHWESTKRN  BBPOBTXB. 


^IX 


received  In  exchange.  The  remedy  which 
plaintiff  had  under  the  contract  of  warranty 
was  to  return  the  defective  machine  or  part 
and  to  receive  a  new  one  or  credit  for  the 
spme  upon  settlement  at  defendant's  option. 
Defendant  could  not  be  put  In  default  unless 
plaintiff  made  or  offered  to  make  this  return. 
He  could  not  return  the  entire  outfit  for 
breach  of  warranty  as  to  a  part  and  force 
defendant  to  an  election  to  malce  It  all  good 
or  to  credit  the  purchase  price.  Moreover, 
the  plaintiff  did  not  even  offer  to  defendant 
the  right  to  supply  a  new  outfit.  The  proper- 
ty was  turned  over,  and  plaintiff  demanded 
the  return  of  his  notes  and  property.  Plain- 
tiff made  the  election  for  himself,  and  that 
was  the  return  of  his  notes  and  property. 
This  defendant  was  not  l>ound  to  comply 
with.  Pitts  V.  Spltznogle,  64  Iowa,  36,  6  N. 
W.  Tl;  Davis  v.  Robinson,  67  Iowa,  362,  25 
N.  W.  280 ;  Nichols  v.  Wyman,  71  Iowa,  160, 
32  N.  W.  258;  Russell  v.  Mnrdock,  79  Iowa, 
101,  44  N.  W.  237,  18  Am.  St  Rep.  348.  The 
contract  malces  rescission  or  return  of  the 
defective  machinery,  the  exclusive  remedy 
for  breach  of  warranty,  and  plaintiff  had 
no  right  to  return  the  entire  outfit,  and  de- 
mand the  surrender  of  bis  notes  and  property. 
Aultman  v.  Lawson,  100  Iowa,  569,  69  N.  W. 
865 ;  Fahey  v.  Esterley  Co.,  3  N.  D.  220,  55 
N.  W.  580,  44  Am.  St  Rep.  654.  It  is  well 
settled  that  one  who  is  entitled  to  rescission 
of  part  of  a  divisible  contract  cannot  rescind 
as  to  the  whole.  See  cases  hitherto  cited, 
and  Nichols  &  Sbepard  Co.  v.  Chace,  103  Wis. 
570,  79  N.  W.  772.  That  the  contract  In  suit 
Is  divisible  of  that  the  parties  make  It  di- 
visible in  so  far  as  the  warranty  is  concerned 
is  very  clear.  See  Nichols  v.  Wiedemann,  72 
Minn.  344,  75  N.  W.  408,  76  N.  W.  41;  Ault- 
man V.  Lawson,  supra ;  Young  v.  Wakefield, 
121  Mass.  91;  Barrett  v.  Wheeler,  71  Iowa, 
663,  33  N.  W.  230."  It  will  thus  be  seen  that 
even  had  the  defendants  made  the  return  of 
the  property  within  proper  time  and  given 
due  notice  thereof,  before  they  could  have 
demanded  a  return  of  the  notes,  they  would 
have  had  to  give  plaintiff  a  chance  to  replace 
the  defective  parts  and  continue  the  transac- 
tion; and  in  this  case  where,  long  after  the 
time  provided  for  the  testing  of  the  rig, 
they  had  continued  to  use  It  without  being 
led  so  to  do  by  any  act  of  the  plaintiff,  and 
where,  after  their  right  to  return  even  the 
defective  parts  had  expired,  they  attempted 
to  return  the  whole  rig  without  notice  to  the 
plaintiff,  and  therefore  without  any  oppor- 
tunity given  the  plaintiff  to  replace  the  de- 
fective parts — ^it  must  be  held  that  the  at- 
tempt to  rescind  failed  and  that  under  the 
evidence  the  plaintiff  was  entitled  to  a  direct- 
ed verdict  for  the  amount  due  on  the  notes. 

The  Judgment  of  the  trial  court  and  order 
denying  a  new  trial  are  therefore  reversed, 
and  a  new  trial  granted.  ' 


WATTERS  V.  DANCBT. 

(Supreme  Court  of  South  Dakota.    June  28, 
1909.) 

1.  Bbokebs  (^  48*)— Action  fob  Couuission. 

In  an  action  by  a  broker  for  commissions  on 
the  sale  of  land,  plaintiff,  to  recover,  must  prove 
that  he  tiaa  brought  to  the  owner  a  purchas- 
er willing  and  able  to  contract  for  the  pur- 
chase of  the  land  on  the  pregcrit>ed  terms,  or, 
in  lieu  of  presenting  such  purchaser,  must  show 
that  he  has  obtained,  in  tavor  of  the  uwuer,  a 
contract  from  the  purchaser  which  is  valid  and 
enforceable  by  the  owner  himself;  it  not  suf- 
ficing that  a  contract  be  made  to  purchase  the 
land  from  the  agent 

[£:d.  Note.— For  other  cases,  see  Brokers, 
Cent  Dig.  i  66 ;  Dec.  Dig.  |  48.>J 

2.  Bbokebs  (§  14*)— AumoBTiT  Confebbkd— 
Statctobt  Provisions. 

Where  land  is  simply  listed  for  sale  with  an 
agent,  the  owner  only  can  sell;  the  agent  hav- 
ing no  authority  himself  to  sell  the  land,  unless 
duly  authorized  in  writing,  as  required  by  Uev. 
Civ.  Code,  {  1238,  subd.  5. 

[EM.  Note.— For  other  cases,  see  Brokers, 
Cent  Dig.  f  IS;  Dec  Dig.  {  14.*] 

3.  Bbokebs  (§  54*)— Sale  or  Laud— Acnoii 
FOB  Commission— Evidence. 

A  broker  employed  to  sell  land  for  cash 
must  show,  in  an  action  for  commissions,  that 
the  purchaser  had  cash  in  hand ;  evidence  that 
he  had  an  abundance  of  property  out  of  which 
the  required  payment  might  be  made  not  suf- 
ficing to  show  that  he  was  ready  and  willing  to 
purchase. 

[Ed.  Note.— For  other  cases,  see  Brokers^ 
Cent  Dig.  §  76;   Dec.  Dig.  S  64.*) 

4.  Trial  ($  169*)— Dibection  of  Vebdict. 

A  verdict  is  properly  directed  for  defend- 
ant, where  the  evidence,  with  all  Inferences 
which  can  justifiably  be  drawn  therefrom,  U 
insufiicient  to  support  a  verdict  for  i  iaintiff. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  ft  381-389;    Dec.  Dig.  i  160.*] 

Appeal  from  Circuit  Court,  Spink  County. 

Action  by  G.  M.  Watters  against  K.  K. 
Dancey.  Judgment  for  defendant  and  plain- 
tiff appeals.    Affirmed. 

William  Issenhuth,  for  appellant  Bmell 
&  Morris,  for  respondent 


McCOY,  J.  In  this  case  plaintiff,  who  Is 
also  the  appellant  brings  this  suit  against 
the  defendant  to  recover  $960  commissions 
for  having  found  a  purchaser  for  defendant's 
laod,  who,  as  plaintiff  alleges  in  his  com- 
plaint was  ready,  willing,  and  able  to  pur- 
chase on  the  terms  prescribed  by  defendant 
Defendant  answered,  denying  generally  all 
plaintiff's  allegations,  and  thus  putting  plain- 
tiff upon  proof  as  to  all  the  allegations  of 
his  complaint  At  the  close  of  the  plaintiff's 
testimony  on  the  trial  the  defendant  moved 
the  court  to  direct  a  verdict  In  favor  of  til* 
defendant,  on  the  grounds  that  the  plaintiff 
had  wholly  failed  to  prove  a  cause  of  action 
against  the  defendant  and  for  the  reason 
that  the  undisputed  evidence  showed  that 
if  said  land  was  so  listed,  the  same  had  been 
withdrawn  from  sale  prior  to  the  time  plain- 
tiff had  received  any  notice  that  plaintiff 


•For  other  eaam  le*  same  topic  and  nctlon  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  dat*.  *  R«portar  Iikd«xM 


Digitized  by  LjOOQ  l€ 


S.  D.) 


WATTERS  V.  DAN0E5T. 


431 


claimed  to  bare  sold  tbe  same.  Tbe  court 
granted  tbe  motion,  and  a  verdict  was  ac- 
cordingly directed  In  favor  of  tbe  defendant. 
To  wblcb  ruling  of  tbe  court  the  plaintiff 
duly  excepted.  It  is  no*  contended  by  tbe 
plaintiff  tbat  tbe  trial  court  erred  in  direct- 
ing a  verdict,  but  we  are  of  tbe  opinion  tbat 
tbere  exist  several  plain  and  clear  reasons 
wby  tbls  position  of  tbe  appellant  is  not 
tenable. 

From  plaintiff's  testimony  it  appears  tbat, 
on  about  July  28,  1906,  tbe  plaintiff  and 
defendant  bad  a  conversation  in  tbe  office 
of  plaintiff,  wbereby  tbe  defendant  told 
plaintiff  tbat  be  mlgbt  list  for  sale  bis  land, 
consisting  of  one  one-quarter  section,  for  $34 
per  acre,  net  to  defendant,  payable  all  cash, 
over  and  above  an  Incumbrance  of  $2,100 
tbereon;  tbat  thereafter,  on  tbe  1st  day  of 
Augtist  following,  the  plaintiff  procured  a 
purchaser,  H.  T.  Bell,  for  said  land,  at  $40 
per  acre  cash  over  tbe  $2,100  incumbrance, 
and  tbat  on  tbat  date  plaintiff  and  said  Bell 
entered  into  a  written  contract,  whereby  Bell 
agreed  to  purchase  tbe  said  land  on  tbe  s&ld 
terms,  not  from  the  defendant,  but  from' 
the  plaintiff,  and  by  tbe  terms  of  wblcb  con- 
tract the  said  Bell  also  agreed  to  forfeit  to 
tbe  plabitlff,  G.  M.  Watters,  tbe  $500  cash 
paid  in  case  Bell  defaulted  In  the  terms  of 
said  contract  After  procuring  this  contract 
from  Bell  plaintiff,  on  August  2d,  wrote  to 
the  defendant,  inclosing  a  draft  for  $50  as 
earnest  money,  and  notifying  defendant  tbat 
he  had  sold  the  land  on  bis  terms,  and  again, 
on  August  6th,  tbe  plaintiff  wrote  defend- 
ant: "We  have  sold  your  land  $34.00  net 
to  you."  "Tbls  was  the  price  and  terms  you 
listed  it  to  as.  H.  T.  Bell  has  purchased 
this  land  from  us  at  $40.00  per  acre,  which 
leaves  us  a  profit  of  $060.00  In  tbe  laud." 
These  letters  and  the  draft  were  returned 
to  plaintiff;  the  defendant  having  refused 
to  receive  or  accept  the  same.  On  August  3d 
the  defendant  wired  plaintiff:  "Concluded 
not  to  sell."  In  every  case  of  this  character, 
the  plaintiff  must  prove,  before  be  can  re- 
cover, tbat  he  has  found  and  produced  and 
brought  to  tbe  landowner  a  purchaser  who 
Is  ready,  willing,  and  able  to  enter  into  a 
contract  to  purchase  with  tbe  landowner  on 
tbe  prescribed  terms;  or  in  lieu  of  produ- 
cing and  presenting  such  a  purchaser,  be 
must  show  tbat  be  bas  obtained  from  such 
purchaser  a  valid  and  binding  contract  in 
favor  of  the  landowner,  and  being  a  con- 
tract tbat  might  be  enforced  by  the  land- 
owner himself  in  case  of  a  breach  or  de- 
fault in  tbe  terms  thereof.  McLiaughlin  t. 
Wheeler,  1  8.  D.  498,  47  N.  W.  816;  Hunte- 
mer  v.  Arent,  16  S.  D.  465,  93  N.  W.  653; 
Mattes  V.  Engle,  15  S.  D.  330,  89  N.  W.  651; 
Howie  V.  Bratrud,  14  8.  D.  648,  86  N.  W. 
747;  19  Cyc.  255;  Flynn  v.  Jordal,  124  Iowa, 
457, 100  N.  W.  326;  Johnson  Bros.  v.  Wright, 
124  Iowa,  61,  99  N.  W.  103;  Ormsby  v, 
Graham,  128  Iowa,  202,  98  N.  W.  724;  Wll- 
srai  T.  Mason,  158  lU.  304,  42  N.  E.  134,  49 


Am.  8t  Rep.  162;  Matlingly  v.  Pennie,  105 
Cal.  514,  39  Pac.  200,  45  Am.  8t  Rep.  87; 
Gunn  V.  Bank,  99  Cal.  349,  33  Pac.  1105; 
Hayden  v.  Grlllo,  35  Mo.  App.  647. 

In  Johnson  v.  Wright,  snpra,  the  court 
says:  "Tbe  agency  was  to  find  a  purchaser 
on  certain  terms,  and,  in  order  to  earn  the 
commission,  it  was  Incumbent  upon  plaintift 
to  furnish  a  person  ready,  able,  and  willing 
to  buy  on  the  terms  fixed.  To  accomplish 
this,  where  no  sale  is  actually  made,  either 
a  valid  obligation  to  buy  must  be  procured 
and  tendered  to  the  principal,  or  tbe  vendor 
and  the  proposed  purchaser  must  be  brought 
together,  so  tbat  tbe  vendor  may  secure  such 
a  contract,  if  be  wished  to  do  so."  It  is  not 
sufficient  tbat  a  contract  be  made  to  pur- 
chase tbe  land  from  tbe  agent.  Where  land 
is  simply  listed  for  sale,  the  only  person 
who  can  sell  the  land  is  the  owner.  John- 
son V.  Wright,  supra.  The  agent  has  no 
authority  to  himself  sell  tbe  owner's  land, 
unless  duly  authorized  in  writing.  Rev.  Civ. 
Code,  g  1238,  subd.  5;  Brandrup  v.  Britten, 
11  N.  D.  376,  92  N.  W.  453;  Hickox  v. 
Bacon,  17  S.  D.  563,  97  N.  W.  847.  The 
agent  was  only  authorized  to  procure  a  pur- 
chaser to  whom  the  owner  might  sell.  The 
agent  might  procure  from  the  proposed  buy- 
er a  written  executory  contract,  wbereby 
such  buyer  agreed  t6  purchase  from  the  own- 
er, and  which  contract,  when  presented  and 
tendered  to  the  landowner,  might  be  signed 
by  him,  and  thus  complete  the  transaction. 
Tbe  valid  and  binding  contract  which  the 
agent  was  required  to  obtain  in  order  to  be 
entitled  to  his  commission  was  a  contract 
signed  by  the  proposed  buyer  agreeing  to 
purchase  from  the  landowner  (not  from  the 
agent)  on  tbe  prescribed  terms,  and  being 
such  a  contract  on  which  the  landowner 
might  himself  recover  damages  in  case  of 
breach  thereof.  The  damage,  if  any,  for 
breach  of  the  contract  would  go  to  the  land- 
owner, and  not  to  the  agent. 

Again,  in  tbe  case  of  Hayden  t.  GriUOr 
supra,  tbe  court  said :  "Tbis  contract  on  tbe 
part  of  a  broker  is  complete  when  he  de- 
livers or  tenders  to  the  owner  a  valid  writ- 
ten contract,  containing  tbe  terms  of  tbe 
sale  agreed  on,  signed  by  a  party  able  to 
comply  therewith,  or  to  answer  in  damages 
if  be  shall  fail  to  perform.  This  is  all  tbe 
agent  can  do;  and,  when  this  is  done,  be  is 
entitled  to  bis  commission.  But  the  neces- 
sity of  a  written  contract  of  sale  may  be 
rendered  unnecessary  if  the  agent  bring  the 
vendor  and  vendee  together,  and  tbe  latter 
Is  able  and  willing  and  offers  to  complete  the 
contract,  provided  the  vendor  will  make  the 
conveyance.  In  such  a  case  tbe  agent  has- 
done  all  tbat  he  can  do;  and,  if  tbe  vendor, 
under  such  circumstances,  refused  to  com- 
plete tbe  sale,  he  will  be  compehed  to  pay 
tbe  agent  his  commission.  Tbe  reason  or 
the  rule  is  very  apparent.  The  object  of  the 
vendor  is  to  effect  a  sale  of  bis  property,  and 
wben  tbe  real  estate  broker  produces  a  con- 


Digitized  by  VjOOQ  l€ 


4S2 


122  NOKTHWESTERN  HBPOBTEB. 


(S.D. 


tract  executed  by  a  solvent  purchaser,  he  Is 
then  entitled  to  pay  for  his  services,  wheth- 
er the  trade  Is  finally  consummated  or  not, 
because,  If  the  vendee  refuses  to  take  the 
property,  the  vendor  holds  the  contract, 
which  renders  the  former  liable  for  all  dam- 
ages (Including  commissions  paid  by  the 
vendor  to  the  broker)  for  a  failure  to  com- 
ply." From  the  reason  of  the  rule  given  In 
this  case  It  necessarily  follows  that  the  con- 
tract must  run  In  favor  of  the  landowner, 
and .  be  a  contract  he  could  enforce;  not 
necessarily  a  contract  that  might  be  spedf- 
Ically  enforced,  but  a  contract  sufficient  In 
form  and  provisions  that  the  landowner 
might  recover  the  damages  which  he  might 
sustain  as  a  result  of  Its  breach,  and  Includ- 
ing any  commissions  he  might  be  compelled 
to  pay.  In  this  case  no  contract  was  ever 
obtained  from  the  proposed  buyer,  H.  T.  Bell, 
In  favor  of  defendant,  and  neither  was  such 
a  contract  ever  furnished  or  tendered  to  de- 
fendant. The  contract  made  with  Bell  was 
an  unauthorized  contract,  and  one  which 
plaintiff  had  no  right  or  authority  to  make, 
unless  expressly  authorized  In  writing  so  to 
do,  and  was  a  contract  in  no  manner  binding 
upon  defendant,  unless  he  ratified  and  ap- 
proved the  same. 

The  plaintiff  having  failed  to  furnish  or 
tender  to  defendant  a  contract  of  the  pro- 
posed purchaser,  it  then  became  necessary 
for  plaintiff,  in  order  to  recover,  to  pro- 
duce and  bring  to  the  defendant  a  proposed 
purchaser  who  was  ready,  willing,  and  able 
to  purchase.     There  is  no  evidence  of  any 


kind  that  plaintiff  ever  produced  or  attempt- 
ed to  get  the  defendant  and  Bell  together  so 
that  they  might  contract  There  is  no  evi- 
dence that  Bell  was  ready  and  willing  to 
make  the  purchase.  The  listing  contract 
provided  for  "all  cash  over  the  incum- 
brance." Evidence  that  the  proposed  pur- 
chaser has  an  abundance  of  property,  out  of 
which  the  required  payment  might  be  made, 
is  not  sufficient  evidence  that  he  was  ready 
and  willing  to  purchase.  The  proof  must 
show  that  he  had  the  cash  In  hand.  19  Cyc. 
24tt;  Neiderlander  v.  Starr,  60  Kan.  766,  32 
Pac.  359;.  Dent  v.  Powell,  93  Iowa,  711,  61 
N.  W.  1043.  In  this  case  the  testimony 
showed  that  the  proposed  purchaser.  Bell, 
at  the  time  of  this  transaction  In  August, 
1906,  bad  about  $300  in  cash,  and  about 
16,000  worth  of  personal  property  and  grow- 
ing crops  In  the  state  of  Iowa,  but  which 
was  insufficient  for  the  purposes  of  this 
case. 

There  was  a  total  lack  of  evidence  on  the 
trial  of  this  case  as  to  matters  necessary  to 
be  shown  before  plaintiff  was  entitled  to  re- 
cover. A  verdict  is  properly  directed  for 
defendant  where  the  evidence,  with  all  Infer- 
ences which  can  Justifiably  be  drawn  there- 
from, is  Insufficient  to  support  a  verdict  for 
plalntitr.  McKeever  v.  Mining  Co.,  10  S.  D. 
599,  74  N.  W.  1063. 

Finding  no  error  In  the  record,  the  judg- 
ment of  the  circuit  court  Is  affirmed. 

WHITING,  J.,  took  no  part  In  the  decision 
of  this  case. 


Digitized  by  LjOOQIC 


B.D.) 


EBX  BUGGY  OO.  ▼.  DINNEBN. 


m 


KARPPIXEN  T.  TAMARACK  MINING  CO. 

(Supreme  Conrt  of  MicU^n.     Not.  2,  1908.) 

Masteb  and   Skbvant  (S  185*)— Injubt  to 
Sebtaniv-Neolioenck   of   Fellow    Sebv- 

ANT. 

Where  a  trammer  in  defendant's  iron  mine 
was  injured  by  the  fall  of  ore  from  the  roof 
of  the  room  in  which  he  was  at  work,  and  the 
■pace  had  not  been  put  in  condition  for  the 
timber  men,  If  there  was  any  negligence,  it  was 
either  in  mining  too  large  a  space  before  cut- 
ting oat  the  comers  for  the  sets,  or  in  failing 
to  notify  the  timber  men  if  sets  could  be  put 
in,  and  in  either  case;  if  the  fault  of  the  miner, 
it  was  the  negligence  of  a  fellow  servant. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  S  399 ;   Dec.  Dig.  {  185.*] 

Error  to  Circuit  Court,  Houghton  County ; 
Albert  T.  Streeter,  Judge. 

Action  by  Henry  Karpplnen  against  the 
Tamarack  Mining  Company.  From  a  Judg- 
ment fer  defendant,  plaintiff  appeals.  Af- 
firmed. 

Argaed  before  GRANT,  C.  J.,  and  BLAIR, 
HOOKER,  MOORE,  and  McALVAY,  JJ. 

P.  H.  O'Brien,  for  appellant.  Ball  tc  Stone, 
for  appellee. 

HOOKER,  J.  The  plaintiff  has  appealed 
from  an  adverse  verdict  directed  by  the  tri- 
al judge. 

The  plaintiff  was  Injured  by  the  fall  of 
rock  from  the  banging  wall  of  defendant's 
mine  after  working  therein  as  a  trammer 
for  30  days.  At  the  time  of  the  Injury  he 
was  loading  rock  which  had  been  broken 
down,  shoveling  It  upon  the  tram  car,  which 
stood  at  the  end  of  the  track  in  close  prox- 
imity. The  case  is  substantially  like  that  of 
Petaja  v.  Aurora  Mining  Company,  106  Mich. 
463,  64  N.  W.  835,  66  N.  W.  931,  32  U  R.  A. 
435,  58  Am.  St  Rep.  505,  and  is  clearly  with- 
in the  rule  there  stated,  and  does  not  require 
a  lengthy  discussion. 

The  Judgment  Is  affirmed. 


REX  BUGGY  CO.  v.  DINNEEN, 

(Supreme  Court  of  South  Dakota.     June  26, 
1909.) 

1.  Appeal  and  Ebbob  (J  979*)— New  Tbial— 
dlscbetion  of  coubt— insufficiency  op 
Evidence. 

It  is  within  the  discretion  of  the  trial  court 
to  grant  a  new  trial  for  insufficiency  of  evidence 
to  jnstifir  the  verdict,  and,  where  a  new  trial 
has  been  granted,  a  stronger  case  is  required  to 
secure  a  reversal  than  where  it  has  been  denied. 
[ESd.  Note. — For  other  cases,  see  Appeal  and 
Error,  (>nt  Dig.  {{  3871-3873;    Dec.  Dig.  § 

2.  COJODEBCB   (J  46*) — Intebstate  Couuebce. 

An  Indiana  corporation  had  an  exclusive 
sales  agent  in  Nebraslca,  which  was  in  posses- 
sion of  buggies  belonging  to  the  principal.  The 
contract  ot  agency  expired,  and  another  person 
who  bad  taken  possession  of  the  former  agent's 
warehouse  sold  the  buggies  to '  a  resident  of 
South  Dakota  without   the  owner's  authority. 


Held,,  that  the  Indiana  corporation  after  the  ex- 
piration of  the  contract  of  agency  was  transact- 
ing an  interstate  business  so  far  as  the  buggies 
were  concerned,  and  could  bring  replevin  in 
South  Dakota  to  recover  them  without  comply- 
ing with  Rev.  Civ.  Code,  §{  883,  885,  requiring 
a  foreign  corporation  before  doing  business  in 
the  state  to  file  with  the  Secretary  of  State  its 
articles  of  incorporation  and  to  appoint  a  resi- 
dent agent 

[Ed.  Note. — For  other  cases,  see  Commerce, 
Cent  Dig.  iS  100,  113,  126;  Dec.  Dig.  §  46.*] 

Appeal  from  Circuit  Court,  Beadle  County. 

Action  by  the  Rex  Buggy  Company  against 
Stephen  D.  Dlnneen.  There  was  a  verdict 
for  defendant.  A  new  trial  was  granted, 
and  defendant  appeals.  Affirmed  and  re- 
manded for  new  trial. 

A.  W.  Wllmarth,  for  appellant  Crawford, 
Taylor  &  Falrbank,  for  respondent 

McCOT,  J.  This  is  an  appeal  from  an  or- 
der of  the  circuit  court  granting  a  new  trial, 
where  a  verdict  was  rendered  In  favor  of 
defendant  The  plaintiff  claimed  to  be  the 
owner  of  certain  buggies  stored  In  the  ware- 
house of  Hathaway-Hanson  Company  at 
Sioux  City,  Iowa,  and  that,  while  said  bug- 
gies were  so  stored,  they  were  wrongfully 
and  without  plaintiff's  knowledge  or  consent 
shipped  to  South  Dakota,  and  sold  to  defend- 
ant. The  defendant  contends  that  he  Is  an 
Innocent  purchaser  of  said  buggies  for  value 
from  an  ostensible  agent  of  plaintiff.  Im- 
mediately upon  discovering  the  whereabouts 
of  said  buggies  plaintiff  brought  this  action 
in  replevin.  The  trial  resulted  in  a  verdict 
for  defendant  The  plaintiff  then  moved 
for  a  new  trial  upon  the  ground  of  the  in- 
sufficiency of  the  evidence  to  sustain  the  ver- 
dict, and  a  new  trial  was  granted  on  that 
ground,  the  granting  of  which  new  trial 
Is  now  urged  as  error.  It  Is  clearly  within 
the  discretion  of  the  trial  coftrt  to  grant  a 
new  trial  on  the  ground  that  the  evidence  in 
Its  opinion  was  Insufficient  to  Justify  a  ver- 
dict; and,  where  a  new  trial  has  been  grant- 
ed, a  stronger  case  Is  required  to  secure  a 
reversal  than  where  It  has  been  denied. 
Rochford  v.  Albaugh,  16.  S.  D.  628,  94  N.  W. 
701.  There  Is  nothing  In  the  record  to  show 
that  the  trial  court  abused  Its  discretion  In 
prantlng  the  new  trial. 

It  Is  also  contended  by  the  appellant  that 
by  reason  of  tlie  fact  that  plaintiff  is  a  for- 
eign corporation  and  had  not,  at  the  time 
this  action  was  commenced,  complied  with 
the  laws  of  this  state  requiring  the  filing  of 
Its  articles  of  Incorporation  and  the  appoint- 
ment of  a  resident  agent,  plaintiff  cannot 
maintain  this  action  at  all,  and  that  any 
verdict  other  than  one  In  favor  of  defendant 
la  not  valid,  and  that,  therefore,  the  trial 
court  erred  In  granting  said  new  trial,  no 
matter  what  the  evidence  was,  other  than 
the  evidence  on  the  question  of  foreign  cor- 
poration.   It  appears  from  the  record  that  at 


Tm  other  cases  lee  aame  topic  and  section  NUMBBR  In  Dec.  ft  Am.  Digs.  1907  to  date,  &  ReDOrter  Indezw 
122N.W.-28 


Digitized  by  LjOOQ  l€ 


4M 


122  NORTHWESTERN  REPORTER. 


(S.D. 


the  time  this  suit  was  commenced  plaintiff 
was  a  foreign  corporation,  and  bad  not  com- 
piled with  sections  883,  885,  Rev.  dv.  Code; 
that  plaintiff  Is  engaged  in  the  manufacture 
and  sale  of  buggies  and  vehicles  at  Conners- 
vllle,  Ind.;  that  prior  to  the  1st  day  of  Au- 
gust, 1001,  plaintiff  and  Hathaway-Hanson 
Company  had  entered  into  a  written  contract 
whereby  Hatha  way-Han  son  Company  be- 
came the  exclusive  sales  agent  of  plaintiff  In 
certain  portions  of  Nebraska  and  South  Da- 
kota In  making  job  'lot  sales  to  dealers,  all 
sales  to  be  referred  to  and  approved  by 
plaintiff  before  making  shipment  to  the  deal- 
er. The  contract  between  plaintiff  and  Hatha- 
way-Hanson  Company  by  the  express  terms 
thereof  expired  on  the  81st  day  of  July,  1904. 
At  the  time  of  the  expiration  of  this  con- 
tract, plaintiff  had  a  quantity  of  buggies  and 
vehicles  stored  In  the  warehouse  of  Hatha- 
way-Hanson  Company  at  Sioux  City.  During 
the  first  part  of  August  following  Hathaway- 
Hanson  Company  made  some  disposition  of 
their  warehouse  and  business  to  one  Mentor, 
who  immediately  took  possession  and  as- 
sumed charge  of  said  warehouse,  and  that 
thereafter  the  said  Mentor  and  one  Sears 
sold  the  buggies  in  question  to  defendant, 
but  without  the  knowledge  or  consent  of 
plaintiff.  Mentor  had  prior  to  the  sale  of 
said  buggies  to  defendant  tried  to  make  a 
deal  direct  with  plaintiff  whereby  he  might 
become  authorized  to  sell,  but  had  failed  to 
make  satisfactory  arrangements  with  plain- 
tiff. It  Is  clear  that  after  the  expiration  of 
the  Hathaway-Hanson  contract  plaintiff,  so 
far  as  the  buggies  and  vehicles  in  the  said 
warehouse  were  concerned,  was  transacting 
Interstate  commerce  business,  and  was  not 
amenable  to  the  laws  of  this  state  In  rela- 
tion to  foreign  corporations,  and  had  the 
right  to  pursue  and  regain  possession  of  its 
property  by  suit  without  first  having  com- 
plied with  the  provisions  of  the  statute  in 
relation  to  foreign  corporations.  Flint  t. 
McDonald  (S.  D.)  114  N.  W.  684,  14  I*  R.  A. 
(N.  S.)  673;  Sucker  State  Drill  Co.  v.  Wlrtz 
(N.  D.)  115  N.  W.  844,  18  L.  R.  A.  (N.  S.) 
134,  and  note. 

The  order  appealed  from  Is  afSrmed,  and 
the  case  remanded  for  new  trial. 

WHITING,  X,  took  no  part  in  this  deci- 
sion. 


CHAMBERS  v.  MITTNACHT  et  al. 

(Supreme  Court  of  South  Dakota.    June  26, 
1009.) 

1.  Corporations  (S  99»)— Stock— Issue— Coif- 

SIDEBATION. 

A  contract,  whereby  plaintiff  and  defendant, 
who  bad  an  option  on  certain  mining  property 
at  a  given  pnce,  were  to  sell  the  same  to  a 
corporntioD  at  a  profit,  and  to  receive  money 
and  stock   In  payment,  did  not  violate  Const. 


art.  17,  i  8,  providing  that  no  corporation  shall 
issue  stock  or  bonds  except  for  money,  labor 
done,  or  money  or  property  actually  received, 
and  that  all  fictitious  increase  of  stock  or  in- 
debtedness shall  be  void ;  or  Rev.  Civ.  Code, 
1271,  providing  "that  is  not  lawfnl  which  is: 


k 


.1)  Contrary  to  an  express  provision  of  law ; 
(2)  contrary  to  the  policy  of  express  law,  thougti 
not  expressly  prohibited ;  or  (3)  otherwise  con- 
trary to  good  morals" — or  section  1272,  provid- 
ing that  all  contracts  which  have  for  their  ob- 
ject, directly  or  indirectly,  to  exempt  any  one 
from  responsibility  for  bis  own  fraud,  or  willfnt 
injury  to  the  person  or  property  of  another,  or 
violation  of  the  law,  whether  willfnl  or  negli- 
gent, are  against  the  policy  of  the  law. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent.  Dig.  {9  444-446 ;    Dec.  Dig.  t  99.*] 

2.  Joint  Adventures  (J  4*)— Dissolution. 

Where  plaintiff  and  defendant  entered  into 
a  contract  tor  the  sale  of  mining  property  on 
which  they  held  an  option,  agreeing  to  divide 
the  profits,  defendant  could  not,  without  plain- 
tiff's consent,  dissolve  the  partnership,  and 
transact  the  business  in  bis  own  name,  ^nd  dis- 
regard plaintiiTs  right  to  share  in  the  profits 
of  the  transaction. 

[EM.  Note.— For  other  cases,  see  Joint  Ad- 
ventures, Dec.  Dig.  {  4.*] 

3.  Corporations  ({  513*)— Action  Against— 
Pleading. 

A  complaint  alleged  that  plaintiff  and  de- 
fendant M.  entered  into  a  contract  for  the  sale 
of  mining  property  belonging  to  a  third  per- 
son, the  commission  and  the  profits  of  the  deal 
to  be  shared  between  them ;  that  M.  sold  the 
property  to  defendant  corporation,  and  was 
about  to  receive  a  large  amount  of  money,  and 
also  a  large  amount  of  the  capital  stock  of  the 
corporation,  the  exact  amount  of  which  was 
to  the  plaintiff  unknown,  and  prayed  that  the 
corporation  be  declared  to  hold  one-hnlf  of  the 
stock  for  plaintiff.  Held,  that  the  allegations 
sufficed  to  authorize  the  proceedings  against  the 
corporation  for  the  purpose  of  compelling  it  to 
hold  the  stock  in  trust  for  M.,  to  hold  or  turn 
over  the  same  to  plaintiff,  and  to  advise  the 
corporation  of  the  nature  of  the  plaintiff's  claim 
agamst  it. 

[Ed.  Note. — For  other  cases,  see  Corporations. 
Dec.  Dig.  (  613.*] 

4.  Reference  (5  99*)— Findings  or  Referee 
— Conclusiveness. 

.  Where  a  reference  was  not  the  ordinary  ref- 
erence, under  the  statute,  of  a  case  where  the 
referee  finds  the  facts  and  states  bis  conclusions 
of  law  and  reports  a  judgment,  but  was  sim- 
ply a  reference  for  the  purpose  of  taking  an  ac- 
counting between  the  parties,  the  court  was  not 
concluded  by  the  findings  of  the  referee,  except 
so  far  as  it  adopted  and  approved  them ;  the 
niles  applicable  to  referees  under  the  statute 
having  no  application  to  referees  appointed  by 
the  court  merely  for  the  purpose  of  taking  aa 
accounting  between  the  parties,  to  enable  the 
court  to  prepare  emd  enter  a  decree. 

[Ed.  Note. — For  other  cases,  see  Reference, 
Cent.  Dig.  iS  150-155 ;  Dec.  Dig.  §  99.*] 

Appeal  from  Circuit  Court,  Ouster  County. 

Action  by  W.  H.  Chaml)ers  against  Henry 
Mtttnacht  and  another.  From  a  judgment 
for  plaintiff,  and  from  an  order  denying  a 
new  trial,  defendants  appeal.    Afilrmed 

Charles  W.  Brown  and  James  A.  George, 
for  appellants.  E.  h.  Grantham,  for  respond- 
ent 

CORSON,  J.     This  is  an  action  by  the 

plaintiff  against  the  defendants,  which  was 


•For  other  eases  ses  sam*  toplo  and  section  NUMBER  in  Dec.  *  Am.  Digs.  1907  to  date.  A  Reporter  Ind«z«» 


Digitized  by 


Google 


S.D.) 


CHAMBERS  v.  MITTNACHT. 


435 


tried  to  the  court  without  a  Jury,  and  a  judg- 
ment and  decree  rendered  In  favor  of  the 
plaintiff,  from  which  the  defendants  have  ap- 
pealed. 

It  Is  alleged  la  the  complaint:  "That  the 
defendant  the  Pittsburg  Mining  Company  is 
a  corporation  duly  organized  and  existing 
under  and  by  virtue  of  the  laws  of  the  state 
of  South  Dakota.  That  during  the  year  1902 
the  plaintiff  and  the  defendant  Henry  Sfltt- 
nacht  entered  Into  a  contract  at  the  county 
of  Pennington  In  the  state  of  South  Dakota, 
wherein  and  whereby  the  plaintiff  and  said 
defendant  entered  Into  a  contract  (or  the 
Bale  and  negotiation  of  a  sale  of  the  Lucky 
Boy  and  other  claims  lying  in  the  Ticlnlty 
of  Tlgervllle,  southerly  from  Redfem  In  Pen- 
nington county,  S.  D.  That  the  plaintiff 
prospected  the  ground,  and  made  a  report 
for  said  purpose,  and  took  the  defendant  Hen- 
ry Mlttnacht  to  the  property,  and  said  Mltt- 
nacbt  was  to  secure  the  parties  to  purchase 
the  ground.  That  negotiations  upon  the  prop- 
erty were  made  from  time  to  time  by  the  par- 
ties hereto,  and  finally  the  defendant  Henry 
Mlttnacht  did  perfect  a  deal  for  the  sale 
and  purchase  of  said  property,  organizing 
the  defendant  the  Pittsburg  Mining  Company 
under  the  laws  of  the  state  of  South  Dakota 
for  such  purpose.  That  In  the  sale  and  ne- 
gotiation of  said  property  the  said  defendant 
Henry  Mlttnacht  has  received,  or  Is  about 
to  receive,  a  large  amount  of  money,  the  ex- 
act amount  of  it  to  the  plaintiff  unknown, 
bnt  upon  information  and  belief  plaintiff 
alleges  that  he  Is  to  receive,  or  has  received, 
the  sum  of  $10,000  as  commissions  upon  said 
deal.  And  further  plaintiff  alleges  that  the 
defendant  Henry  Mlttnacht  Is  to  receive,  or 
has  received,  as  commlsBlons  upon  the  sale 
and  negotiations  upon  said  property  a  large 
amount  of  the  capital  stock  of  the  defend- 
ant company.  The  exact  amount  thereof  la 
unknown,  but  upon  information  and  belief 
tbe  plaintiff  alleges  the  amount  thereof  to  be 
$100,000  thereof.  That  the  plaintiff  and  tbe 
defendant  Henry  Mlttnacht  were  to  share 
and  share  alike  the  commissions  and  profits 
of  said  deal,  each  to  bear  his  own  expenses, 
and  the  one-half  of  the  moneys  aforesaid, 
and  the  one-half  of  the  stock  aforesaid,  be- 
longs to  the  plaintiff  herein.  That  the  de- 
fendant falls  and  refuses  to  deliver  to  the 
plaintiff  any  of  the  moneys  or  stock  arising 
from  the  said  deal,  and  refuses  to  recognize 
tbe  rights  of  the  plaintiff  herein,  although 
demand  for  a  statement  thereof  has  b'een 
made  by  the  plaintiff.  That  by  reason  of  the 
failure  to  keep  and  perform  his  said  con- 
tract the  plaintiff  has  been  and  will  be  neces- 
sarily put  to  a  large  expense,  to  wit,  to  the 
expense  of  $1,000  all  to  the  plaintiff's  dam- 
age In  the  sum  of  $1,000.  Wherefore  plaintiff 
prays  for  Judgment  against  the  defendants: 
First,  for  an  accounting  upon  said  contract, 
and  the  delivery  to  the  plaintiff  of  the  one- 
half  of  the  stock  received,  or  to  be  received, 
by  tbe  defendant  Mlttnacht,  and  one-half  of 


the  moneys  resulting  to  the  said  Mlttnacht 
from  said  deal;  second,  that  the  defendant 
corporation  be  declared  to  hold  the  Interest  In 
said  corporation  In  trust  for  the  plaintiff,  and 
that  the  one-half  of  the  stock  coming  to  said 
Mlttnacht  be  by  said  corporation  Issued  to  the 
plaintiff  herein;  third,  for  $1,000  damages, 
and  the  costs  and  disbursements  of  this 
action." 

The  defendant  In  his  ansvrer  admits  that 
his  codefendant  is  a  corporation,  and  that 
the  defendant  has  failed  and  refused  to  de- 
liver to  the  plaintiff  any  money  or  stocks 
arising  from  the  deal,  and  also  refuses  to 
recognize  any  right  in  the  plaintiff  by  rea- 
son of  the  said  transaction.  For  a  second 
defense  the  defendant  Mlttnacht  alleges  that 
on  or  about  tbe  7th  day  of  August,  1003,  this 
defendant  was  instrumental  In  causing  a 
contract  to  be  made  and  entered  Into  between 
one  lievl  W.  Kimball  and  the  said  Pittsburg 
Mining  Company  for  the  sale  of  the  proper- 
ties described,  and  that  the  plaintiff  had 
nothing  to  do  with  the  said  contract  or  trans- 
action, or  with  the  finding  of  a  purchaser  for 
said  mining  claims,  and  that  the  plaintiff 
was  not  in  any  manner  Instrumental  in  se- 
curing the  said  contract  of  property  for  this 
defendant,  or  his  codefendant,  the  Pittsburg 
Mining  Company ;  that,  on  the  contrary,  the 
plaintiff,  at  and  prior  to  the  month  of  Au- 
gust, 1903,  during  the  time  that  negotiations 
were  pending  between  the  defendants  and 
said  Kimball  for  said  mining  company,  was 
negotiating  with  said  Kimball  for  the  sale  of 
said  properties  to  other  parties,  and  was  at- 
tempting to  prevent  the  sale  of  said  mining 
property  by  said  Kimball  to  said  Pittsburg 
Mining  Company.  The  answer  of  the  Pitts- 
burg Mining  Company  Is  substantially  the 
same,  and  all  the  other  allegations  of  the  com- 
plaint not  admitted  by  the  defendants  are 
denied  by  them.  Upon  a  trial  had  before 
the  court  on  the  14th  day  of  April,  1904,  the 
court  found  that  the  plaintiff  and  defendant 
Mlttnacht,  during  the  month  of  July,  1902, 
entered  mutually  Into  a  contract  with  Levi 
W.  Kimball,  wherein  and  whereby  tbe  said 
Chambers  and  said  Mlttnacht  were  to  under- 
take the  negotiation  and  sale  of  certain  min- 
ing properties  of  tbe  said  Kimball  situated 
in  Pennington  county;  that  It  was  agreed 
between  the  parties  to  said  contract  that  the 
said  Kimball  was  to  receive  as  purchase  price 
of  said  property  the  sum  of  $25,000,  and  cap- 
ital stock  in  the  corporation,  to  be  organized 
for  the  purpose  of  holding  and  operating  said 
property,  to  the  amount  of  $5,000,  and  it  was 
further  agreed  that  said  Chambers  and  Mltt- 
nacht should  sell  said  property  at  a  price 
In  advance  of  the  purchase  price  thereof, 
thereby  gaining  for  themselves  a  profit  in  the 
transaction,  which  should  be  divided  equally 
between  them,  and  to  which  arrangement  for 
advance  In  price  the  said  Kimball  assented. 

The  court  further  finds:  "That  under  the 
terms  of  sale  to  the  parties  purchasing  said 
property,  the  defendant  Mlttnacht  was  to  re- 


Digitized  by  VjOOQ  l€ 


436 


122  NORTHWESTERN  REPORTER. 


(KD. 


celve  as  part  of  the  purchase  price  of  said 
property,  In  addition  to  the  contract  price  to 
Kimball,  a  certain  amount  of  the  capital 
stock  of  the  Pittsburg  Mining  Company; 
that  the  same  is  now  held  by  said  corporation 
and  not  Issued,  but  that  when  all  arrange- 
ments and  details  of  the  company's  organi- 
zation shall  have  been  completed,  the  said 
stoelc,  under  an  agreement  between  Henry 
Mittuaciit  and  the  Pittsburg  Mining  Compa- 
ny, is  to  be  issued  to  said  Henry  Mittnacht ; 
that  the  said  Mittnacht  is  to  receive  the  said 
stock  as  aforesaid  as  profits  on  the  sale  of 
said  propert:^,  and  not  otherwise,  and  that 
by  the  terms  of  the  contract  the  one-half 
thereof  belongs  to  the  plaintUF  herein;  that 
the  defendant  the  Pittsburg  Mining  Company 
now  holds  of  said  stock  the  sum  of  75,000 
shares  thereof,  subject  to  the  terms  and  con- 
ditions of  the  contract  between  the  Pittsburg 
Mining  Company  and  said  Henry  Mittnacht; 
that  the  value  of  the  stock  of  the  Pittsburg 
Mining  Company  Is  not  less  than  25  cents 
per  share;  that  the  plaintiff  demanded  of 
the  defendant  Henry  Mittnacht  an  account- 
ing, and  the  said  defendant  refused  to  recogr 
uize  the  rights  or  .claims  of  the  plaintiff  in 
any  manner  whatsoever."  From  which  find- 
ings the  court  concludes  that  the  plaintiff. 
Chambers,  is  entitled  to  one-half  of  the  prof- 
its arising  from  the  sale  of  the  properties 
mentioned;  that  plaintiff  is  entitled  to  an 
accounting  of  all  matters  affecting  the  profits 
and  the  conditions,  agreements,  and  contracts 
of  the  said  Mittnacht  with  other  persons,  re- 
specting his  ownership  of  the  capital  stock  of 
the  Pittsburg  Mining-  Company  contracted  or 
agreed  to  be  delivered  or  issued  to  said  cor- 
poration; that  the  said  accounting  is  necessa- 
ry for  the  information  of  the  court  before  the 
entry  of  final  Judgment  herein.  Thereupon 
the  court  referred  the  matter  of  an  accounting 
to  A.  T.  Feay,  Esq.,  as  sole  referee.  Pursuant 
to  the  order  of  the  court  the  referee  proceed- 
ed to  take  an  account  of  the  transaction  be- 
tween the  parties,  finding  that  Mittnacht,  in 
the  organization  of  said  Pittsburg  Mining 
Company,  by  its  agreement  with  him,  was  en- 
titled to  140,000  shares  of  the  company's 
stock  as  an  advance  or  profit  upon  the  sale 
of  said  mining  properties,  to  one-half  of 
which,  or  70,000  shares,  the  plaintiff  was  en- 
titled, and  that  the  company  held  in  trust 
for  said  Mittnacht  75,000  shares  of  the  stock 
of  said  defendant  the  Pittsburg  Mining  Com- 
pany. The  report  of  the  referee  is  quite  vo- 
luminous; and,  in  the  view  we  take  of  the 
case,  it  will  not  be  necessary  to  insert  It  in 
this  opinion.  Upon  the  coming  in  of  the  re- 
port of  the  referee  the  same  was  approved 
and  adopted  by  the  court. 

On  the  10th  day  of  January,  1905,  the  court 
proceeded  to  make  findings  and  Judgment, 
embodying  substantially  the  findings  of  the 
court  In  its  former  findings,  and  concludes 
therefrom:  "That  the  plaintiff  Is  the  owner 
of  70,000  shares  of  the  capital  stock  of  the 
Pittsburg  Mining  Company,  represented  by 


the  certificate  of  stock  for  75,000  shares 
thereof  Issued  In  the  name  of  Henry  Mitt- 
nacht, and  in  the  custody  of  the  treasurer 
of  the  corporation.  That  the  defendant  the 
Pittsburg  Mining  Company  has  become  li- 
able to  the  plaintiff  for  said  70,000  shares 
of  its  capital  stock,  or  the  value  thereof.  In 
case  delivery  is  not  made  at  the  valuation 
of  25  cents  per  share.  That  the  plaintiff  is 
entitled  to  have  and  recover  of  and  from  the 
defendants,  Henry  Mittnacht  and  the  Pitts- 
burg Mining  Company,  70,000  shares  of  the 
capital  stock  of  the  Pittsburg  Mining  Com- 
pany, or  the  value  thereof,  $17,500,  in  case 
delivery  cannot  be  bad.  [That  plaintiff]  is 
entitled  to  an  order  for  the  defendant  the 
Pittsburg  Mining  Company  to  turn  over  to 
the  plaintiff  said  70,000  shares  of  stock,  and, 
in  case  of  a  refusal,  to  do  so  within  a  rea- 
sonable time,  to  have  process  either  by  con- 
tempt or  otherwise,  or  Judgment  against 
said  defendant  corporation  for  the  value 
thereof,  |17,500.  The  plainUff  is  entlUed 
to  recover  of  and  from  the  defendant  Henry 
Mittnacht  the  sum  of  51,000  damages,  by  rea- 
son of  the  wrongful  acts  of  said  defendant. 
The  plaintiff  Is  entitled  to  recover  his  costs 
and  disbursements  herein  against  the  defend- 
ant Henry  Mittnacht  and  the  Pittsburg  Min- 
ing Company."  And  a  Judgment  was  there- 
upon entered  accordingly.  Subsequently  the 
claim  of  |1,000  damages  was  remitted  by 
the  plaintiff.  It  will  thus  be  seen  that  the 
court,  by  its  findings  and  conclusions  of  law, 
found  that  the  plaintiff  was  entitled  to  the 
70,000  shares  of  stock  as  against  the  defend- 
ant Mittnacht,  and  that  it  found  that  the  de- 
fendant the  Pittsburg  Mining  Company  held 
that  amount  of  stock  in  trust  for  Mittnacht, 
and  that  by  its  Judgment  the  court  decreed 
that  the  said  mining  company  should  turn 
over  the  said  70,000  shares  of  the  75,000 
shares  held  by  it  to  the  plaintiff,  and  that, 
in  case  it  failed  or  refused  to  turn  over  the 
said  stock,  then  that  the  plaintiff  was  enti- 
tled to  recover  the  value  thereof,  at  the  rate 
of  25  cents  per  share  amounting  to  $17,500. 
There  was  a  large  mass  of  evidence  In- 
troduced, both  orally  and  by  way  of  deposi- 
tions, but  the  only  question  necessarily  lit- 
igated was  as  to  whether  or  not  the  plain- 
tiff and  Mittnacht  were  partners  in  the  trans- 
action resulting  in  the  sale  of  the  Kimball 
properties  to.  the  Pittsburg  Mining  Company, 
and  as  to  the  profit  accruing  to  the  parties 
by  reason  of  such  sale,  and  as  to  whether 
or  *not  there  was  held  by  the  mining  com- 
pany 75,000  shares  in  trust  for  Mittnacht; 
or,  in  other  words,  whether  a  profit  had  been 
made  by  the  transfer  of  the  property  to  the 
mining  company  to  the  amount  of  140,000 
shares  as  found  by  the  court,  to  half  of 
which,  or  70,000  shares,  the  plaintiff  was 
entitled.  Upon  a  careful  examination  of  the 
evidence  taken  by  the  court  and  referee, 
we  are  of  the  opinion  that  the  referee  and 
court  were  fully  authorized  to  make  the 
findings  above  quoted  and  fully  set  out  In 


Digitized  by  VjOOQ  l€ 


S,D.) 


CHAMBERS  t.  MITTUACHT. 


437 


the  abstract,  and  that  the  court  was  fully 
Justified  therefrom  In  makhig  Its  conclusions 
of  law. 

It  Is  contended  by  the  appellant  that  the 
contract  found  by  the  court  and  referee,  as 
entered  into  by  the  plaintiff  and  defendant 
Mlttnacht,  was  contrary  to  section  8,  art  17, 
of  the  state  Constitution,  and  to  sections 
1271  and  1272  of  the  ReTised  Civil  Code,  and 
to  good  morals,  and  is  fraudulent,  unlawful, 
and  void.  The  section  of  the  Constitution 
reads  as  follows:  "No  corporation  shall  is- 
sue stock  or  bonds  except  for  money,  labor 
done,  or  money  or  property  actuaUy  received; 
and  all  fictitious  increase  of  stock  or  indebt- 
edness shall  be  void." 

Sections  1271  and  1272  read  as  follows: 
"Sec.  1271.    That  is  not  lawful  which  is: 

(1)  Contrary  to  an  express  provision  of  law; 

(2)  contrary  to  the  policy  of  express  law, 
though  not  expressly  prohibited;  or  (3)  oth- 
erwise contrary  to  good  morals. 

"Sec.  1272.  All  contracts  which  have  for 
their  object,  directly  or  indirectly,  to  exempt 
any  one  from  responsibility  for  his  own 
fraud,  or  willful  injury  to  the  person  or  prop- 
erty of  another,  or  violation  of  law,  wheth- 
er willful  or  negligent,  are  against  the  poli- 
cy of  the  law." 

A  large  number  of  authorities  are  cited 
In  support  of  the  proposition  of  counsel; 
but.  In  the  view  we  take  of  the  case,  the  con- 
tract, as  alleged  and  proven  and  found  by 
the  court,  does  not  come  within  the  inhibi- 
tion of  the  Constitution,  or  in  any  manner 
violate  the  provisions  of  the  Civil  Code.  It 
will  be  noticed  that  the  court  by  its  third 
finding  of  fact  finds  that  "the  said  Mlttnacht 
received  the  said  stock  as  aforesaid  as  prof- 
its on  the  sale  of  said  property,  and  not  oth- 
erwise." It  was  competent  for  the  plaintiff 
and  the  defendant  to  enter  Into  negotia- 
tions with  the  owner  of  the  mining  proper- 
ties to  purchase  the  same  at  a  fixed  sum 
agreed  upon;  and,  in  case  they  could  make 
a  sale  of  the  properties  for  a  larger  sum,  to 
receive  the  amount  In  addition  as  profits  on 
the  venture,  and  divide  the  same  between 
themselves.  It  would  seem  from  the  findings 
of  the  court  and  the  referee  that  after  mak- 
ing the  contract  with  Kimball,  the  owner 
of  the  mining  properties,  Mlttnacht  proceed- 
ed to  make  a  sale  of  the  same,  and  ultimate- 
ly succeeded  In  disposing  of  the  properties 
to  parties  who  were  willing  to  pay  the 
amount  stipulated  to  be  paid  to  Kimball, 
and  some  $18,000  In  addition  thereto,  for 
some  other  properties  not  owned  by  Kimball, 
and  to  Issue  to  Mlttnacht  and  Kimball,  as 
originally  agreed  upon,  each  120,000  shares 
of  the  stock,  but  that  subsequently  this  con- 
tract was  modified,  which  reduced  the 
amount  of  stock  to  be  issued  to  Mlttnacht 
to  140,000  shares,  which  was  to  constitute 
the  profit  on  the  sale  of  the  properties  to 
the  mining  company.  It  cannot  reasonably 
be  claimed  that  the  framers  of  the  Consti- 
tution Intended  to  prohibit  parties  from  con- 


tracting to  purchase  properties,  and  there- 
after reselling  the  same  to  a  corporation, 
and  receiving  in  the  form  of  a  profit  upon 
the  resale  shares  of  stock  in  the  corporation; 
or,  in  other  words  to  prevent  parties  who 
enter  into  contracts  for'mining  or  other  prop- 
erties from  reselling  the  same  at  an  ad- 
vanced price,  and  to  receive  a  portion  of  the 
stock  equivalent  to  such  an  advanced  price 
over  and  above  what  was  to  be  paid  to  the 
original  owner. 

It  will  be  observed  that  the  plaintiff  and 
Mlttnacht  were  not  employed  by  Kimball 
as  his  agents  to  sell  the  properties  at  the 
best  price  obtainable  for  him,  but  that  they 
had  an  option  contract  with  him  for  the  pur- 
chase of  the  property  at  a  fixed  sum.  While 
it  Is  true  that  neither  the  plaintiff  nor  Mltt- 
nacht had  Bufiiclent  funds  of  bis  own  to 
pay  for  the  property  contracted  to  be  pur- 
chased of  Kimball,  they  had  an  option  upon 
the  property  which  they  had  a  perfect  right 
to  dispose  of  at  an  advance,  and  thereby 
secure  a  profit  to  themselves  on  the  trans- 
action. And  such  clearly  was  the  nature  of 
the  transaction  as  disclosed  by  this  record. 
While  it  is  true  that  the  word  "commission" 
is  sometimes  used  in  the  evidence,  and  Is 
used  In  the  complaint,  still  the  court  as  a 
court  of  equity  was  authorized,  after  hear- 
ing the  evidence,  to  find  the  real  transaction 
as  between  the  parties,  and,  having  found 
In  effect  that  there  was  a  resale  of  the  prop- 
erty by  Mlttnacht,  acting  for  himself  and 
the  plaintiff,  to  the  mining  company,  by 
which  he  secured  for  himself  and  the  plain-' 
tiff  140,0CR)  shares  of  the  stock  as  an  advance 
upon  the  amount  to  be  paid  to  Kimball  for 
the  properties,  there  was  clearly  no  viola- 
tion '  of  the  constitutional  provision  or  the 
provisions  of  the  Code.  It  is  an  everyday 
transaction  that  parties  secure  options  on 
mining  properties,  agricultural  lands,  water 
rights,  and  other  properties,  and  then  suc- 
ceed In  finding  a  purchaser  who  Is  willing 
to  take  the  properties,  pay  the  amount  stipu- 
lated in  the  option  contract,  and  pay  to  the 
parties  from  whom  they  purchased,  either 
In  cash  or  part  of  the  capital  stock  (In  case 
the  company  Is  Incorporated),  the  profits  of 
the  party  who  has  originally  secured  the  op- 
tion, and  It  cannot  be  seriously  contended 
that  shares  of  stock  so  Issued  to  the  party 
holding  the  option  as  profit,  or  a  cash  pay- 
ment to  him  as  a  profit  or  advance  upon  the 
price  he  was  to  pay,  constitutes  a  violation 
of  the  constitutional  provision.  To  give  the 
provision  of  the  Constitution  the  construc- 
tion contended  for  by  the  appellant  would 
prevent  parties  who  had  options  upon  prop- 
erties from  selling  the  same  to  Individuals 
or  corporations,  .and  receive  an  advance  on 
the  stipulated  price  specified  In  the  option. 
In  the  case  at  bar  It  Is  disclosed  by  the  evi- 
dence tliat  the  plaintiff  was  engaged  in  the 
mining  brokerage  business  at  Hill  City  in 
Pennington  county,  had  made  an  examina- 
tion of  the  properties  of  Kimball,  and  had 


Digitized  by  VjOOQ  l€ 


438 


122  NOBTHWESTBBN  RBPORTEB. 


(S.D. 


concluded  from  such  examination  and  assays 
made  by  liim  that  they  possessed  great  val- 
ue as  mining  properties,  and  that  they  could 
be  disposed  of  at  an  advance  over  aud  above 
the  price  placed  upon  them  by  Kimball,  and 
that  thereupon  he  entered  Into  a  verbal  con- 
tract with  Kimball  for  an  option  upon  the 
properties  at  the  price  stated,  and  that,  hav- 
ing accomplished  this,  he  brought  the  mat- 
ter to  the  attention  of  Mittnacbt,  who  was  al- 
so to  some  extent  engaged  in  the  sale  of 
mining  properties,  and  it  was  then  agreed 
that  Mlttnacht  should  interest  parties  in  the 
Bast  in  the  properties,  and  make  a  sale  of 
them  if  possible,  and  that  the  plaintiff  was 
to  remain  at  Hill  City  to  show  the  proper- 
ties to  such  parties  as  might  come  to  ex- 
amine them,  or  experts  who  might  be  sent 
for  tliat  purpose,  and  to  attend  to  the  bus- 
iness of  assisting  in  the  sale  of  the  property 
In  Pennington  county;  that  thereupon  Mltt- 
nacht did  present  the  properties  to  various 
parties  in  the  Ebst,  some  of  whom  visited 
the  same,  and  under  the  direction  of  the 
plaintiff  examined,  and  finally  concluded  to 
invest  in  these  properties. 

It  is  admitted  by  Mlttnacht  that  he  entered 
into  the  agreement  as  stated  by  the  plaintiff, 
but  that  some  time  In  February,  1903,  he  be- 
came discouraged,  and  gave  up  his  efforts  to 
dispose  of  the  property  in  connection  with 
the  plaintiff.  So  far  as  the  record  discloses, 
the  plaintiff  never  abandoned  the  enterprise, 
or  consented  that  the  same  should  be  aban- 
doned, and  that  up  to  the  time  of  the  comple- 
tion of  the  sale  by  the  purchase  of.the  prop- 
erties from  Kimball,  and  the  organization  of 
the  mining  company,  the  plaintiff  was  con- 
stantly using  efforts  in  connection  with  the 
defendant  Mlttnacht  to  carry  out  the  original 
transaction,  and  that  when  be  was  Informed 
that  Mlttnacht  had  succeeded  In  making  a 
disposition  of  the  property,  and  organized 
the  mining  company,  he  demanded  of  him  his 
half  of  the  profits  of  the  venture,  and  was 
informed  by  Mlttnacht  that  he  was  not  con- 
nected with  the  deal,  and  had  no  Interests  In 
the  profits.  Clearly  Mlttnacht  could  not, 
without  the  consent  of  the  plaintiff,  dissolve 
the  partnership,  and  transact  the  business  in 
connection  with  the  mining  claims  purchased 
of  Kimball  in  his  own  name,  and  disregard 
the  rights  of  the  plaintiff  to  share  in  the  prof- 
its of  the  transaction.  Such  was  the  view  of 
this  court  in  a  similar  partnership  transac- 
tion. In  which  one  of  the  partners  sought  to 
end  the  partnership  on  his  own  motion,  and 
proceeded  to  transact  the  business  of  the 
partnership  individually.  Goodfellow  v.  Kel- 
sey,  21  S.  D.  241,  111  N.  W.  555.  This  court 
in  that  case  says:  "He  [the  plaintiff],  hav- 
ing entered  into  the  venture  Jointly  with  the 
other  parties  for  the  sale  of  both  tracts,  it 
was  not  competent  for  the  defendants  to  ex- 
clude him  without  his  consent  from  partic- 
ipating in  the  transaction  resulting  in  the 
sale  of  the  land  in  the  'west  township.'    It 


appears  from  the  undisputed  evidence  that 
after  the  conclusion  of  the  transaction  re- 
sulting In  the  sale  of  the  land  in  the  'eaat 
township'  the  plaintiff  continued 'bis  efforts 
to  find  purchasers  for  the  land  in  the  'west 
township,'  and  made  a  trip  to  Iowa  and  ex- 
pended considerable  money  for  that  purpose, 
and  that  he  did  not  cease  bis  efforts  in  that 
direction  until  Informed  by  the  defendant 
Kelsey  that  a  sale  had  been  virtually  made  to 
the  Hatches  of  the  larger  portion  of  that 
tract  *  •  •  And  the  fact  that  the  de- 
fendants closed  the  deal  by  taking  those 
lands  In  their  own  names  does  not.  In  our 
opinion,  affect  the  plaintiff's  right  to  his  pro- 
portion of  the  commissions  earned  by  such 
sales,  subject,  as  before  stated,  to  the  pay- 
ment of  his  share  of  the  expenses  and  losses, 
If  any." 

It  is  further  contended  by  the  appellants 
that  the  Judgment  against  the  mining  com- 
pany Is  not  warranted  or  supported  by  the 
complaint.  Clearly  there  is  no  merit  in  this 
contention,  as  the  only  claim  made  against 
the  defendant  company  Is  that  they  be  de- 
creed to  hold  the  70,000  of  the  76,000  shares 
of  stock  as  trustee  for  the  plaintiff,  and  that 
company  Is  simply  required  to  turn  over  to 
the  plaintiff  the  said  70,000  shares  of  stock ; 
and,  when  it  shall  do  so,  he  has  no  further 
daim  against  the  company.  At  the  time  the 
complaint  was  drawn  all  the  facts  subse- 
quently disclosed  by  the  evidence  were  not 
known  to  the  plaintiff,  and  hence  his  allega- 
tions were  necessarily  somewhat  indefinite, 
as  the  defendant  Mlttnacht  bad  refused  to 
communicate  with  him,  as  he  should  have 
done  as  a  partner,  the  nature  of  the  trans- 
action between  himself  and  the  mining  com- 
pany. There  Is  suflJclent,  however,  in  our 
opinion,  in  the  complaint  to  warrant  the 
court  in  its  findings  and  Judgment,  as  against 
the  defendant  company. 

It  is  alleged  in  the  complaint  "that  in  the 
sale  and  negotiation  of  said  property  the  said 
defendant  Henry  Mlttnacht  has  received,  or 
is  about  to  receive,  a  large  amount  of  money, 
the  exact  amount  of  it  to  the  plaintiff  un- 
known, but  upon  Information  and  belief  plain- 
tiff alleges  that  be  is  to  receive,  or  has  re- 
ceived, the  sum  of  $10,000  as  commissions  up- 
on said  deaL  And  further  plaintiff  alleges 
that  the  defendant  Henry  Mlttnacht  Is  to  re- 
ceive, or  has  received,  as  commissions  upon 
the  sale  and  negotiations  upon  said  property 
a  large  amount  of  the  capital  stock  of  the  de- 
fendant company.  The  exact  amount  thereof 
is  unknown,  but  upon  Information  aad  belief 
the  plaintiff  alleges  the  amount  thereof  to  be 
$100,000  thereof."  The  defendant  company 
was  therefore  advised  that  they  held  money 
and  stock 'Of  Mlttnacht,  and  it  was  required 
to  hold  the  interest  In  said  corx>oration  of  the 
defendant  Mlttnacht  In  trust  for  the  plain- 
tiff, and  that  one-half  of  the  stock  coming  to 
said  Mlttnacht  should  be  by  the  corporation 
Issued  to  the  plaintiff  herein.    We  think  these 


Digitized  by  LjOOQ  l€ 


8.D.) 


SHBRMAIT  T.  SHERMAN. 


439 


allegations  are  aufiSclent  to  authorize  the  pro- 
ceedings against  the  corporation,  for  the  pur- 
pose of  compelling  It,  if  It  held  stock  In  trust 
for  Hlttnacht,  to  hold  or  turn  over  the  same 
to  the  plaintiff,  and  that  the  defendant  was 
fully  advised  by  the  complaint  of  the  nature 
and  character  of  the  plalntifTs  claim  as 
against  it.  If,  as  found  by  the  court,  the  de- 
fendant company  hold  the  75,000  shares  of 
stock,  70,000  of  which  justly  and  rightly  be- 
long to  the  plaintiff,  it  has  no  reason  to  com- 
plain, if  it  refuses  to  turn  over  the  stock  to 
the  plaintiff,  that  it  shall  be  required  to  pay 
him  the  Talne  of  the  same. 

It  is  further  contended  by  the  appellants 
that  the  court  erred  in  modifying  the  report 
of  the  referee.  Also  that  the  report  of  the 
referee  went  beyond  the  referee's  Jurisdiction, 
and  beyond  the  case  made  by  the  complaint, 
and  embraced  within  the  issue  in  the  action. 
But  these  contentions  are  clearly  untenable. 
An  interlocutory  decree  was  entered  by  the 
court,  finding  the  facts  in  favor  of  the  plain- 
tiff, and  stating  its  conclusions  of  law  there- 
on, and  the  court,  haying  found  it  necessary, 
for  the  puriMse  of  a  final  decree,  that  an  ac- 
counting should  be  had  between  the  plaintiff 
and  the  defendant  Mlttnacht,  and  the  rela- 
tion sustained  by  Mlttnacht  to  the  mining 
company,  and  the  mining  company  to  him,  re- 
ferred the  case  to  the  referee  to  take  an  ac- 
count. The  duty  of  the  referee  was  therefore 
to  ascertain  the  state  and  nature  of  the  ac- 
counts between  defendant  Mlttnacht  and  the 
mining  company,  in  order  that  the  court 
might  determine  what  decree  should  be  made 
as  against  those  parties.  The  reference, 
therefore,  as  contended  for  by  the  appellant 
was  not  the  ordinary  reference  under  the 
statute  of  a  case  where  the  referee  finds. the 
facts,  and  states  his  conclusions  of  law  and 
reports  a  Judgment,  but  was  simply  a  refer- 
«nce  for  the  purpose  of  taking  an  accounting 
between  the  parties,  and  the  court  was  not 
therefore  concluded  by  the  findings  of  the 
referee  only  so  far  as  it  adopted  and  approv- 
ed of  the  same. 

It  is 'also  contended  that  there  is  no  evi- 
dence that  the  defendant  Mlttnacht  ever  re- 
ceived, or  by  any  contract  or  understanding 
was  to  have  or  receive,  20,000  shares  of  the 
25,000  shares  of  stock  Issued  to,  and  delivered 
to,  Levi  Kimball,  or  any  part  thereof,  or  any 
Interest  therein,  but  there  was  evidence  as  to 
this  stodc,  submitted  to  both  the  referee  and 
the  court,  and  we  cannot  say  that  there  was 
a  preponderance  of  evidence  against  the  find- 
ing. The  contention,  therefore,  that  there 
was  no  evidence  upon  this  issue,  or  upon  the 
issue  as  to  Mlttnacht  receiving  120  shares  of 
the  stock,  or  is  to  receive  it,  is  not  sustained 
by  the  record.  We  shall  not  attempt  to  re- 
view the  evidence  in  this  opinion,  as  such  a 
review  would  serve  no  useful  purpose.  We 
are  satisfied,  however,  after  a  careful  review 


of  the  evidence,  that  the  findings  of  the  court 
upon  this  question  were  sustained  by  the  evi- 
dence. 

It  is  further  contended  that  the  report  of 
the  referee  went  beyond  its  Jurisdiction,  and 
beyond  the  case  made  by  the  complaint,  but, 
as  before  stated,  the  referee  was  simply  act- 
ing In  aid  of  the  court  in  stating  the  account 
between  the  parties,  in  order  to  enable  the 
court  to  make  proper  findings  and  Judgment 
at  the  final  trial  of  the  case. 

It  is  further  contended  that  the  court  erred 
in  modifying  the  report  of  the  referee ;  bat, 
as  we  have  before  stated,  this  reference  was 
not  made  under  the  statute,  but  was  made 
by  the  authority  of  the  court  as  chancellor, 
and  the  court,  as  a  court  of  chancery,  was 
not  absolutely  bound  by  the  findings  of  the 
referee.  The  rules  applicable  to  referees  un- 
der the  statute  have  no  application  to  refer- 
ees appointed  by  the  court  merely  for  the 
purpose  of  taking  an  accounting  between  the 
parties  to  enable  the  court  to  enter  and  pre- 
pare a  decree. 

Finding  no  error  in  the  record,,  the  Judg- 
ment of  the  circuit  court  and  order  denying 
a  new  trial  are  affirmed. 

WHITING,  J.,  taking  no  part  in  the  deci- 
sion. 


SHERMAN  et  al.  ▼.  SHERMAN  et  al. 

(Supreme  Court  of  South  Dakota.    June  26, 
1900.) 

1.  Deeds  (S  92»)—Construc3tion— Statutes. 

Where  grantors  intended  to  transfer  land 
to  a  railroad  company  nnder  tlie  power  con- 
ferred on  it  to  purchase,  take,  hold,  etc.,  land, 
by  Comp.  Laws  1887,  S  2980,  the  deed  will 
be  construed  in  the  light  of  the  statute,  which 
became  a  part  of  the  contract. 

[Ed.  Note. — For  other  cases,  see  Deeds,  Cent. 
Dig.  S  230;   Dec.  Dig.  {  82.*] 

2.  Railboads  (5  69*)  —  Capacity  to  Hout 
Land— CoNSTBucTioN  of  Statute. 

Comp.  Laws  1887,  {  2980,  gave  a  railroad 
corporation,  authorized  to  maintain  a  railroad 
in  the  territory,  power  to  acquire  by  purchase 
real  estate  and  other  property  necessary  for 
the  construction,  etc.,  or  its  railroad,  stations, 
and  other  accommodations  reasonably  necessary 
to  accomplish  tlie  object  of  its  incorporation, 
to  hold  and  use  it,  to  lease  or  otherwise  dispose 
of  it,  or  sell  it  when  not  required  for  railroad 
uses.  Section  2999  rave  a  railroad  company 
power  to  purchase  and  use  real  property  lot  a 
price  to  be  agreed  upon  with  the  owners.  Sec- 
tion 3002  provided  that,  when  real  property  of 
a  minor  was  taken,  the  guardian  might  agree 
and  settle  with  the  railroad  for  all  damages  and 
claims.  Held,  that  the  legislative  intent  was 
that  a  fee-simple  title  should  pass  to  the  rail- 
rond  comptinv  coextensive  with  the  power  of 
holding  and  disposition  of  the  lands  so  acquired. 
[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent.  Wg.  §§  161-166;   Dec.  Dig.  {  69.*] 

8.  Deeds  (8  25*)— Quttclaim  Deeds— Effect. 

While  the  common-law  quitclaim  was  not 

considered    a    conveyance    in    England,    in    the 

United  States  by  statute  and  common  usage  it 


•For  oUier  cues  SM  same  topic  and  sectios  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


440 


122  NORTHWESTERN  REPORTER. 


(S.D. 


is  recopiized  as  one  of  the  modes  of  real  estate 
conveyance  for  transferring  title. 

[Ed.  Note. — For  otiier  cases,  see  Deeds,  Cent. 
Dig.  §  49 ;   Dec.  Dig.  f  25.*] 

4.  Words  and  Phrases— "Claim." 

The  word  "claim"  is  a  broad  and  compre- 
hensive term,  and  includes  title  and  ownership 
to  real  )>roperty  when  used  in  relation  thereto. 
fEd.  Note.— For  other  definitions,  see  Words 
and  Phrases,  vol.  2,  pp.  1202-1211;  voL  8,  p. 
76W.]  .  ". 

5.  WOBDS    AND    PhBASES — "ReMISE"  —  "RE- 
LEASE"—"QUITCLAIM." 

The  words  "remise,"  "release,"  and  "quit- 
claim" each  mean  to  discharge. 

[Ed.  Note.— For  other  definitions,  see  Words 
and  Phrases,  vol.  7,  pp.  5889,  5890,  6058-COGl ; 
vol.  8,  p.  7783.] 

6.  Words  and  Phrases— "Quit"— "Acquit." 

The  word  "quit"  is  a  contraction  of  the 
word  "acquit,"  meaning  to  discharge. 

[Ed.  Note. — For  other  definitions,  see  Words 
and  Phrases,  vol.  1,  pp.  114,  115:  vol.  7,  p. 
58S9.] 

7.  Deeds  (8  86*)  —  Requisites  —  Fobm  and 
Contents. 

An  agreement  between  the  owners  of  land 

and  a  railroad  company  stated  that,  in  consid- 
eration of  a  certain  sum  paid,  the  owners  "do 
hereby  discharge  and  forever  release"  the  rail- 
road company  from  all  damages  and  claims 
whatsoever  on  account  of  the  taking,  etc.,  of 
the  land,  had  the  same  operative  effect  of  a 
formal  quitclaim  deed,  the  operative  words  of 
which  are  "remise,  release,  and  forever  quit- 
claim," and  served  to  discharge  and  release  the 
railroad  company  from  all  daims  of  ownership 
and  title  to  the  lands,  constituting  the  trans- 
action a  grant  of  real  property,  which  as 
thoroughly  divested  the  grantors  of  their  title 
as  a  warranty  deed  with  full  covenants  of  title 
would  have  done. 

[Ed.  Note.— For  other  cases,  see  Deeds,  Cent. 
Dig.  I  56;    Dec  Dig.  §  36.*] 

8.  Deeds  (|  141*)— Construction- Reskbva.- 
xi,oNS— Bargain  and  Sale. 

Comp.  Laws  1887,  g  2980,  gave  a  railroad 
company,  authorized  to  maintain  a  railroad  in 
the  territory,  power  to  acquire  by  purchase  real 
estate  necessary  for  construction  of  its  railroad, 
etc.,  with  full  power  of  disposition.  Section 
3002  provided  that,  when  real  property  of  a 
minor  was  taken,  the  guardian  might  agree  and 
settle  with  the  railroad  company  for  all  dam- 
ages and  claims.  Section  2854  provided  that 
in  all  cases  where  an  absolute  power  of  dis- 
position was  given,  not  accompanied  by  a  trust, 
and  no  remainder  was  limitea  on  the  estate  of 
the  holder  of  the  power,  he  was  entitled  to  an 
absolute  fee.  Section  3254  provided  that  a  fee- 
simple  title  was  presumed  to  be  intended  to  pass 
by  a  graut  of  real  property,  unless  it  appeared 
from  the  grant  that  a  lesser  estate  was  in- 
tended. Section  3238  provided  that  a  reserva- 
tion in  a  grant  should  be  interpreted  in  favor 
of  the  grantor.  The  owners  or  property  cor\- 
veyed  it  in  1887,  while  the  above  statutes  were 
in  force,  to  a  railroad  company  by  an  instru- 
ment obviously  intended  to  transfer  the  title 
contemplated  by  section  2080;  the  guardian  of 
certain  minor  owners  settling  with  the  railroad 
for  all  claims,  as  provided  by  section  3002. 
No  tmsts  were  mentioned  in  the  agreement. 
The  consideration  was  the  full  value  of  the  fee 
title,  and  the  agreement  recited  that  the  gran- 
tors "do  hereby  discharge  and  forever  release" 
the  railroad  company  from  all  damages  and 
claims  whatsoever  on  account  of  the  taking, 
holdinir,  and  appropriating  of  the  land,  also 
that  the  railroad  deemed  the  land  necessaiT  "for 
the  use  of  its  railroad,  but  for  no  other  pur- 
pose," and  that  the  land  was  conveyed  "for  the 


purpose  aforesaid,  but  no  other."  There  was 
no  reservation  of  any  right  to  re-enter  in  case 
the  grantee  ceased  to  use  the  land  for  the  pur- 
pose specified.  Held,  that  there  was  no  res- 
ervation of  any  right  in  the  grantors,  nor  did 
the  recttals  limiting  the  use  constitute  an  ease- 
ment in  view  of  the  consideration  exacted,  but 
the  transaction  was  one  of  bargain  and  sale 
for  the  transfer  of  the  fee-simple  title. 

[Ed.  Note.— For  other  cases,  see  Deeds,  Cent. 
Dig.  8  463 ;   Dec.  Dig.  {  141.*] 

Corson,  J.,  dissenting. 

Appeal  from  Circuit  Court,  Bllnnebaba 
County. 

Action  by  Abbie  Pbilllps  Sherman  and  oth- 
ers against  P.  F.  Sherman  and  others.  Judg- 
ment of  dismissal,  and  plaintiffs  appeal.  Af- 
firmed. 

Boyce  &  Warren,  for  appellants.  C.  O. 
Bailey,  W.  8.  Kenyon,  and  J.  M.  Dickinson, 
for  respondents. 

McCOY,  J.  This  case  comes  to  this  court 
on  appeal  from  Alinnetaaba  county  circuit 
court.  There  is  no  dispute  about  the  facts. 
Botb  sides  rely  upon  the  flndlugs  of  fact  as 
found  by  tbe  trial  court  From  such  find- 
ings it  appears:  That  tbe  plaintiffs  Abbie 
Phillips  Sherman,  Alice  Phillips  Wilcox, 
Flora  G.  PhUlips,  Charles  A-  Phillips,  Rossle 
C.  Pbilllps,  and  Josle  L.  Phillips  were  min- 
ors, domiciled  in  tbe  county  of  Minnehaha  in 
September,  1887,  and  that  Hattie  C.  Phillips 
bad  been  duly  appointed  the  guardian  of  said 
minors,  and  that  tbe  said  minors  were  at 
that  time  tenants  in  common  with  Annie  C. 
Phillips  of  certain  real  estate  situated  in  tbe 
city  of  Sioux  Falls,  and  consisting  of  5.86 
acres,  and  being  about  719  feet  long  and 
about  842  feet  wide,  and  being  a  little  in  ex- 
cess of  two  ordinary  city  blocks.  That  in 
September,  1887,  tbe  Cherokee  &  Dakota  Rail- 
way Company  was  a  corporation  duly  organ- 
ized and  authorized  to  construct  and  oper- 
ate and  maintain  a  railway  within  tbe  ter- 
ritory of  Dakota,  and  that  In  September, 
1887,  the  said  railway  company  was  engagea 
In  tbe  construction  of  a  line  of  railroad  from 
Cherokee,  Iowa,  to  Sioux  Falls,  and  that 
said  Cherokee  &  Dakota  Railway  Company, 
being  desirous  of  taking,  holding,  and  appro- 
priating the  said  parcel  of  land  for  station 
grounds,  tracks,  side  tracks,  and  switches, 
entered  into  an  agreement  with  tbe  plaintiffs 
to  pay  to  plaintiffs  tbe  sum  of  $6,850,  tbe  then 
market  value  of  tbe  fee  title  of  said  parcel 
of  land,  and  did  then  and  by  virtue  of  such 
agreement  pay  to  plaintiffs  tbe  said  sum  of 
money,  in  full  payment  for  all  damages  and 
claims  whatsoever  by  reason  of  the  taking, 
holding,  and  appropriating  of  said  land  by 
said  railway  company.  That  tbe  said  con- 
tract and  agreement  between  plaintiffs  and 
said  Cherokee  &  Dakota  Railway  Company 
was  evidenced  by  tbe  following  instrument 
in  writing:  "Whereas,  tbe  Cherokee  &  Dako- 
ta Ry.  Co.  deem  it  necessary  to  take,  hold. 


•For  other  cases  see  same  topic  and  asGUou  NUMBKR  in  Dec.  &  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


8.  p.) 


BHERUAN  T.  SHERHAN. 


Ul 


and  flppf«prlate  for  tbe  purpose  of  station 
grounds,  tracks,  side  tracks,  switches,  and  tbe 
location,  construction,  and  convenient  use  of 
Its  railroad,  but  for  no  other  purpose,  the 
following  described  real  estate,  the  property 
of  Annie  C.  Phillips,  Abbie  C.  Phillips,  Alice 
C.  Phillips,  Flora  C.  Phillips,  Charles  A. 
Phillips,  Rossle  C.  Phillips  and  Josie  L.  Phil- 
lips (being  the  two  blocks  above  mentioned), 
and  whereas,  on  the  18th  day  of  October, 
1883,  the  undersigned  Hattie  C  Phillips,  was, 
by  the  probate  court  of  Minnehaha  county, 
aforesaid,  appointed  tbe  guardian  of  the 
persons  and  estate  of  all  said  minors  and 
BtlU  Is  such  guardian,  and,  whereas,  said  An- 
nie O.  Phillips,  in  her  own  right,  and  said 
Hattie  C.  Phillips,  as  such  guardian  of  all 
eald  above-named  minors,  with  the  approv- 
al of  the  judge  of  the  probate  court  of  said 
county,  which  approval  Is  appended  to  and 
made  a  part  of  this  Instrument,  agrted  with 
said  railroad  company  upon  the  sum  of  $6,850 
in  full  payment  for  all  damages  and  claims 
whatsoever,  In  favor  of  said  Annie  C.  Phil- 
lips, •  •  •  and  every  of  them  by  rea- 
son of  the  taking  of  said  real  property,  and 
have  settled  with  said  railroad  company  for 
all  said  damages  and  claims  for  said  sum 
of  money,  and  whereas,  said  railroad  com- 
pany has,  with  authority,  consent,  and  con- 
currence of  said  Annie  C.  Phillips,  and  with 
the  approval  of  said  Judge  of  probate  court, 
paid  to  said  Hattie  C-  Phillips,  as  such  guar- 
dian, for  and  on  behalf  of  said  Annie  C. 
Phillips,  and  said  minors,  the  said  sum  of 
money,  and  said  Hattie  C.  Phillips  as  such 
guardian  has  accepted  and  received  the  same 
in  full  settlement  of  said  damages  and 
claims.  Now  this  Indenture,  made  this  26tb 
day  of  Sept,  1887,  between  said  Annie  C. 
Phillips,  in  her  own  right,  and  said  Annie 
C.  Phillips,  •  •  •  each  and  all  by  said 
Hattie  C.  Phillips,  their  guardian,  as  afore- 
said, parties  of  the  first  part,  and  tbe  said 
Cherokee  &  Dakota  Ry.  Co.,  party  of  the  sec- 
ond part,  witnesseth:  That  the  said  parties 
of  tbe  first  part,  In  consideration  of  the  sum 
of  $6,^0,  to  them  in  hand  paid,  the  receipt 
of  which  is- hereby  acknowledged,  do  hereby 
discharge  and  forever  release  the  said  Chero- 
kee &  D.  Ry.  Co.,  from  all  damages  and  claims 
whatsoever,  on  account  of  the  taking,  holding, 
and  appropriation  of  said  above-described 
land  for  the  purpose  aforesaid,  but  no  other. 
In  witness  whereof,  the  said  Annie  C.  Phil- 
Rps,  In  her  own  right,  and  the  said  Hattie 
C.  Phillips,  as  such  guardian  as  aforesaid, 
have  hereunto  set  their  bands  and  seals  the 
day  and  year  last  above  written.  Annie  C. 
Phillips.  [Seal.]  Hattie  C.  Phillips,  Guardi- 
an. [Seal.]"  And  this  instrument  was  duly 
acknowledged  and  thereafter  duly  recorded 
on  December  12,  1887,  and  has  appended  and 
annexed  thereto  the  approval  of  the  said 
Judge  of  probate  court  That  thereafter,  dur- 
ing tbe  year  1880,  the  said  Cherokee  &  Da- 
kota Railway  Company  conveyed  all  its  right 
title,  and  Interest  to  the  said  premises  to  the 


Dubuque  &  Sioux  City  Railway  Company, 
and  that  thereafter,  about  February,  1801, 
the  said  Dubuque  &  Sioux  City  Railway  Com- 
pany leased  said  premises  to  tbe  Illinois  Cen- 
tral Railroad  Company,  and  that  thereafter, 
in  May,  1893,  the  Illinois  Central  Railway 
Company  leased  a  part  of  said  premises  to 
defendants,  who  thereupon  erected  thereon  a 
machinery  warehouse  used  in  and  about  the 
private  business  of  defendants,  and  that  de- 
fendants ever  since  have  and  now  still  occu- 
py said  portion  of  said  premises  with  their 
said  warehouse.  That  none  of  plaintiffs 
have  ever  occupied  said  premises  since  Sep- 
tember, 1887,  since  the  making  of  said  instru- 
ment. The  plalntlfTs  brought  this  action  to 
quiet  title  and  to  regain  possession  of  the 
portion  of  said  premises  occupied  by  defend- 
ants with  said  warehouse,  and  to  recover 
rents  and  profits.  Judgment  was  entered  in 
favor  of  defendants  dismissing  plaintiffs' 
complaint  upon  the  merits,  from  which  Judg- 
ment plaintiffs  have  appealed,  and  contend 
that  such  judgment  is  not  supported  by  the 
findings  of  fact  and  is  against  law. 

The  vital  question  Is:  What  was  the  ef- 
fect of  tbe  said  written  Instrument  under 
the  laws  of  the  territory  of  Dakota  in  force 
at  the  time  of  its  execution?  Did  said  in- 
strument pass  an  unconditional  fee  title  or  an 
easement  only  to  the  said  Cherokee  &  Dakota 
Railway  Company?  Section  488,  Rev.  Civ. 
Code,  was  formerly  section  2080,  Comp.  Laws, 
and  was  in  force  during  the  year  1887.  This 
section,  among  otber  things,  provided  that 
every  railroad  corporation  authorized  to  con- 
struct, operate,  or  maintain  a  railroad  with- 
in this  territory  shall  have  power  "to  acquire 
under  tbe  provisions  of  this  act  or  by  pur- 
chase, all  such  real  estate  and  other  proper- 
ty as  may  be  necessary  for  the  construction, 
maintenance  and  operation  of  Its  railroad, 
and  the  stations,  depot  grounds,  and  other 
accommodations-  reasonably  necessary  to  ac- 
complish the  object  of  its  incorporation;  to 
hold  and  use  tbe  same,  to  lease  or  otherwise 
dispose  of  any  part  or  parcel  thereof,  or  sell 
the  same  when  not  required  for  railroad  us- 
es, and  no  longer  necessary  to  its  use."  Sec- 
tion 2090,  Comp.  Laws  (section  507,  Rev.  Civ. 
Code),  also  provided  as  follows:  "Any  rail- 
road corporation  may  purchase  and  use  real 
property  for  a  price  to  be  agreed  upon  with 
the  owners  thereof;  or  the  damages  to  be 
paid  by  such  corporation  for  any  real  prop- 
erty taken  as  aforesaid  when  not  agreed  up- 
on, shall  be  ascertained  and  determined  by 
the  circuit  court  •  *  *  in  conformity 
with  the  provisions  of  the  Code  of  Civil  Pro- 
cedure." Section  3002,  Comp.  Laws  (section 
508,  Rev.  CHv.  Code),  also  provided:  "Whenev- 
er any  railroad  corporation  shall  take  any  real 
property  as  aforesaid,  of  any  minor,  •  •  • 
the  guardian  of  such  minor  may  agree  and 
settle  with  said  corporation  for  all  damages 
or  claims  by  reason  of  the  taking  of  such 
real  property,  and  may  give  valid  releases 
and  discharges  therefor  upon  tbe  approval 


Digitized  by  VjOOQ  l€ 


442 


122  NORTHWESTEBN  REPORTEB. 


(&D. 


thereof  by  the  Judge  of  the  probate  court" 
Under  these  sections  of  the  Compiled  Laws 
In  force  in  1887  a  railway  corporation  might 
acquire  real  estate  by  two  methods — by  con- 
demnation or  by  purchase — and  the  provi- 
sions of  section  30Q2  were  applicable  to  either 
method.  It  must  be  remembered  at  all  times 
wbUe  considering  this  case  that  the  Chero- 
kee &  Dakota  Railway  Company  did  not  ac- 
quire the  land  in:  Question  by  virtue  of  con- 
demnation proceedings  against  the  will  and 
consent  of  the  grantors,  but  by  a  contract 
of  purchase,  for  a  fixed  price,  which  was  the 
full  market  value  of  the  fee,  and  which  con- 
tract was  entered  into  by  plaintiffs,  who  were 
the  grantors,  freely  and  voluntarily;  but, 
on  account  of  the  fact  that  some  of  plain- 
tiffs at  the  time  of  the  transaction  were  mi- 
nors, the  approval  of  the  Judge  of  probate  be- 
came necessary  in  order  to  satisfy  the  pro- 
visions of  section  8002.  Neither  do  appel- 
lants contend  that  said  railway  company  ac- 
quired said  land  by  condemnation,  or  the  ez- 
«rclse  of  eminent  domain.  In  the  reply  brief 
appellants  state:  "Since  in  this  case  the  vol- 
untary grant  was  made  no  condemnation 
could  have  taken  place,  and  consequently  we 
are  not  Interested  in  determining  what  title 
would  have  passed  by  condemnation  proceed- 
ings." The  treinsactlon  was  a  grant  based  on 
contract  of  the  parties,  and  from  the  lan- 
guage used  In  the  instrument  it  was  evident- 
ly the  Intention  to  transfer  said  land  to  said 
railway  company  under  the  power  conferred 
on  said  railway  corporation  to  purchase,  take, 
hold,  lease,  and  dispose  of  the  same  under 
the  provisions  of  section  2980,  Comp.  Laws. 
That  being  the  intention  of  the  parties,  then 
the  instrument  should  be  construed  in  the 
light  of  these  provisions  of  the  law,  as,  under 
such  circumstances,  the  provisions  of  this 
law  would  become  a  part  of  the  contract. 
The  power  conferred  on  the  railway  corpora- 
tion by  section  2960  is  to  purchase,  take,  hold, 
lease,  dispose  of,  and  sell  the  whole  or  any 
part  of  the  lands  thus  acquired  when  no  long- 
er required  for  railway  uses,  thus  giving  such 
railway  corporation  full  and  absolute  power 
of  disposition  over  the  property  purchased  un- 
der the  provisions  of  this  statute.  Sections 
2999  and  3002  provide  the  method  or  means 
for  carrying  out  and  making  effective  the 
power  to  purchase,  take,  hold,  lease,  etc., 
conferred  by  section  2980.  Referring  to  the 
language  of  section  3002,  "When  any  railroad 
corporation  shall  take  any  real  property  as 
aforesaid  (that  is,  by  purchase  or  condemna- 
tion) the  guardian  •  •  •  may  agree  and 
settle  with  said  railway  corporation  for  all 
damages  or  claims  by  reason  of  the  taking 
*  *  *  and  may  give  valid  releases  and  dis- 
charges therefor,  upon  the  approval  of  the 
Judge  of  the  probate  court,"  thus  showing 
that  the  framers  of  this  law  had  in  mind  the 
very  form  of  instrument  here  used  as  being 
the  proper  form  of  Instrument  for  transfer- 
ring lands  acquired  by  purchase  under  sec- 
tion 2980.    It  seems  to  be  quite  evident  that 


the  legislative  mind  Intended  that  a  fee  title 
should  pass  to  the  railway  company,  and 
that  there  is  no  way  of  escaping  this  con- 
clusion. It  is  plainly  apparent  from  the 
reading  of  the  statute  that  the  title  to 
be  acquhred  under  these  provisions  is  co- 
extensive and  correlative  with  the  power  of 
holding  and  disposition  of  the  lands  so  ac- 
quired. The  plain  intent  of  the  legislative 
assembly  was  that  a  complete  title  should 
be  vested  in  the  company.  The  very  word- 
ing and  form  of  this  grant  in  question  are 
such  as  to  make  it  clear  that  plaintlfCs  in- 
tended to  convey  and  the  company  to  acquire 
the  full  title  contemplated  by  this  statute 
— a  fee-simple  title.  Some  reference  has 
been  made  on  argument  of  counsel  to  the 
Union  Pacific  Railway  act  (Act  July  2,  1864, 
c.  216, 13  Stat.  356),  and  the  provisions  there- 
of, and  it  Is  assumed,  possibly  correctly, 
that  the  territorial  Legislature  followed  that 
act,  and  that  under  the  Union  Pacific  act 
it  was  provided  that  the  guardian  should 
have  full  power  to  make  and  execute  a  con- 
veyance which  would  "vest  the  title  thereto 
in  said  company,"  and  that  said  provision 
has  been  omitted  from  our  statute,  and  it 
is  contended  from  this  that  the  legislative 
assembly  did  not  Intend  that  title  should 
pass  to  the  railway  company.  If  that  con- 
tention were  correct,  the  Legislature  would 
have  also  omitted  subdivision  3  of  section 
2980.  But,  when  the  Legislature  had  al- 
ready provided  that  the  guardian  might  re- 
lease and  discharge  all  claims  by  reason  of 
the  appropriation,  the  effect  was  to  pass  title 
to  the  company  Just  as  effectually  as  If  the 
language  of  the  Union  Pacific  act  had  been 
all  used.  Further  use  of  the  language  of 
the  Union  Pacific  act  would  have  been  un- 
necessary verbiage.  Under  subdivision  8  of 
section  2980  the  Legislature  intended  that  a 
fee  title  should  pass,  and  the  parties  to  this 
instrument  acted  and  Intended  to  convey 
title  with  that  provision  of  the  statute  In 
view. 

Let  us  next  consider  the  operative  effect 
of  the  instrument  in  question.  The  grant- 
ing portion  of  this  Instrument  Is  as  follows: 
"Wituesseth,  that  the  said  parties  of  the  first 
part  in  consideration  of  the  sum  of  $6,850,  to 
them  in  hand  paid,  the  receipt  of  which  is 
hereby  acknowledged,  do  hereby  discharge 
and  forever  release  the  said  Cherokee  &  D. 
Ry.  Co.,  from  all  damages  and  claims  what- 
soever, on  account  of  the  taking,  holding, 
and  appropriating  of  the  above-described 
land  for  the  purpose  aforesaid,  but  no  other." 
The  specific  operative  words  of  this  Instru- 
ment are,  "discharge  and  forever  release 
from  all  claims  whatsoever."  The  opera- 
tive language  here  used  is  the  exact  equiva- 
lent of  the  common-law  quitclaim  deed.  The 
operative  words  of  the  common-law  quit- 
claim were,  "remise,  release  and  forever 
quitclaim."  2  Bouvler,  808;  23  Am.  &  Eug. 
Ency.  588;  Jones  on  Law  of  Real  Property 
Conveyancing,  209,  811.    While  the  common- 


Digitized  by  VjOOQ  l€ 


S.D.) 


SHERMAN  ▼.  BHEBMAN. 


443 


law  quitclaim  was  not  considered  a  con- 
veyance In  EUigland,  In  the  United  States 
by  statute  and  common  usage  It  Is  recog- 
nized as  one  of  the  modes  of  real  estate  con- 
veyance for  transferring  title,  and  has  been 
so  recognized  in  this  state.  Parker  v.  Ran- 
dolph, 5  S.  D.  549,  59  N.  W.  722,  29  L.  R. 
A.  33.  It  wUl  be  noticed  that  the  operative 
words  of  this  instrument,  "discharge  and 
forever  release,"  not  only  from  all  damages, 
but  also  from  "all  claims  whatsoever"  by  rea- 
son of  the  said  talcing,  holding  and  appropri- 
ation. If  the  word  "damages"  only  had  been 
used  in  this  Instrument,  then  it  possibly 
would  not  have  transferred  any  title  at  all, 
but  it  "discharges  and  forever  releases  from 
all  claims  whatsoever."  The  word  "claim" 
Is  a  broad  and  comprehensive  term,  and  in- 
cludes title  and  ownership  to  real  property, 
when  used  in  relation  thereto.  1  Bouvier, 
332;  6  Am.  A  Eng.  Ency.  97;  7  Cyc.  080; 
United  States  v.  Spaulding,  3  Dak.  93,  13 
N.  W.  857,  638.  The  words  "remise,"  "re- 
lease" and  "quitclaim"  each  mean  "to  dis- 
charge." The  word  "quit"  is  a  contraction 
of  the  word  "acquit,"  meaning  "to  discharge." 
Hence  by  the  use  of  the  words  "discharge 
and  forever  release  from  all  claims  whatso- 
ever" had  the  same  operative  effect  in  the 
instrument  in  question  as  if  used  in  a  formal 
quitclaim  deed,  and  served  to  discharge  and 
release  the  said  railway  corporation  from 
all  claims  whatsoever  of  ownership  and  ti- 
tle to  the  said  lands,  and  thus  constituting 
the  transaction  a  grant  or  transfer  of  real 
property.  It  is  generally  held  that  q  deed 
of  release  and  quitclaim  is  as  efTectual  for 
the  purpose  of  transferring  title  to  land  as 
the  most  skillfully  drawn  warranty  deed. 
Brown  V.  Oil  Co.,  97  111.  214,  37  Am.  Kep. 
106;  Parker  v.  Randolph,  5  S.  D.  649,  59  N. 
W.  722,  29  L.  R.  A  33;  Jones  on  Real  Prop- 
erty Conveyancing,  828.  If  the  words  "dis- 
charge and  forever  release  from  all  claims 
whatsoever,"  used  and  employed  in  the  in- 
strument in  question,  operated  to  create  a 
grant  and  transfer  of  title,  then  the  same 
was  a  broad  and  comprehensive  grant,  re- 
gardless of  the  verbiage  used,  and  as  thor- 
oughly and  completely  divested  the  grantors 
of  their  title  to  said  land  as  would  have  been 
accomplished  by  a  deed  of  warranty,  with 
full  covenant  of  title. 

Under  section  2980,  Comp.  Laws,  the  said 
railway  company  was  granted  power  to  ac- 
quire said  land  by  purchase,  with  full  pow- 
er of  disposition,  viz.,  to  hold,  lease,  dispose 
of,  and  sell  the  whole  or  any  part  thereof. 
Section  2864,  Comp.  Laws  (section  361,  Rev. 
Olv.  Code),  was  in  force  in  1887,  and  pro- 
vides: "In  all  cases  where  an  absolute  pow- 
er of  disposition  is  given  not  accompanied  by 
a  trust,  and  no  remainder  Is  limited  on  the 
estate  of  the  holder  of  the  power,  he  is  en- 
titled to  an  absolute  fee."  Section  8254, 
Comp.  Laws  (section  947,  Rev.  Civ.  Code), 
provides  that:  "A  fee-simple  title  is  presum- 
ed to  be  Intended  to  pass  by  a  grant  of  real 


property,  unless  it  appears  from  the  grant 
that  a  lesser  estate  was  intended."  Section 
3238,  Comp.  Laws  (section  931,  Rev.  Civ. 
Cod^,  provides:  "A  grant  is  to  be  interpret- 
ed in  favor  of  the  grantee,  accept  that  a  res- 
ervation in  a  grant,  and  every  grant  made 
by  a  public  officer,  as  such,  is  to  be  inter- 
preted in  favor  of  the  grantor."  The  terms 
"trust,"  "remainder,"  and  "reservation"  all 
have  well-deflned  meanings  in  conveyancing; 
and  no  trust,  remainder,  or  reservation  are 
included  or  mentioned  in  the  instrument  in 
question.  The  use  of  the  words  "for  railroad 
purposes  only"  will  not  create  a  reservation. 
There  was  no  reservation  of  any  right  to  re- 
enter in  case  the  said  corporation  ceased  to 
use  the  land  for  the  purposes  specified  in  tlie 
instrument  There  is  no  reservation  of  any- 
thing In  this  instrument 

If  the  Cherokee  &  Dakota  Railway  Com- 
pany acquired  a  fee  title  under  the  instru- 
ment in  question,  what  effect,  then,  were 
the  words  therein,  "for  the  use  of  its  rail- 
road, but  for  no  other  purpose,"  and  "for 
the  purpose  aforesaid,  but  no  other"?  The 
decision  of  this  court  in  Huron  v.  Wilcox,  17 
S.  D.  625,  98  N.  W.  88,  106  Am.  St  Rep.  788, 
forecloses  that  question.  It  was  held  in 
that  case  that  the  transaction  was  bargain 
and  sale  under  section  1299,  Rev.  Oiv.  Code. 
In  this  case  the  transaction  was  bargain  and 
sale,  but  the  transfer  of  title  was  accom- 
plished under  the  powers  and  provisions  of 
specific  law  relating  to  transfers  to  railway 
corporations.  In  that  case  it  was  further 
held  that  the  city  of  Huron  was  empowered 
by  law  to  purchase,  hold,  lease,  transfer, 
and  convey  real  property  (and  being  the 
same  power  conferred  by  law  upon  the  rall- 
wa:^  corporation  in  question),  and  that  the 
language  In  the  deed,  "for  city  hall  purposes 
only,"  was  not  sufilclent  to  constitute  a  con- 
dition subsequent  nor  a  restriction  or  res- 
ervation, upon  the  estate  granted,  that  would 
defeat  the  title  granted,  upon  a  showing  that 
the  property  was  not  being  used  for  city 
hall  purposes.  In  rendering  the  decision  in 
Huron  v.  Wilcox  the  court  said:  "A  deed 
will  not  be  construed  to  create  a  conditional 
estate  unless  the  language  used  unequivocal- 
ly indicates  an  intention  on  the  part  of  the 
grantor  to  that  effect.  The  right  is  not  given 
to  the  grantors  to  enter  and  resume  posses-. 
sion  in  case  the  premises  are  not  used  for 
city  hall  purposes,  and  the  expression  ap- 
pears to  be  merely  a  declaration  of  the  pur- 
pose for  which  the  purchase  was  made. 
Without  express  words  relating  to  forfeiture 
or  re-entry,  no  authority  has  been  found  go- 
ing to  the  extent  of  holding  a  conveyance 
conditional  and  subject  to  be  divested  that 
was  executed  for  a  valuable  consideration 
with  a  recital  that  the  laud  conveyed  shall 
not  be  used  for  any  other  purpose  than  that 
specified."  To  the  same  effect  In  Packard  v. 
Ames,  16  Gray  (Mass.)  327;  Vail  v.  Long  I. 
Ry.,  106  N.  Y.  283,  12  N.  B.  607,  60  Am.  Rep. 
449;  Curtis  T.  Board  of  Ed.,  43  Kan.  138,  23 


Digitized  by  VjOOQ  l€ 


Hi 


i22  I^ORTBWBSXBBN  BBPOBTER. 


^D. 


Pac.  98;  Glreene  y.  O'Connor,  18  R.  I.  56,  25 
Atl.  692,  19  L.  R.  A.  262. 

There  are  many  cases  holding  that  recitals 
In  grants  limiting  the  use  of  the  property 
will  constitute  an  easement  An  easement  Is 
created  by  a  conveyance  of  a  right  of  way  to 
a  railroad  company  for  a  nominal  considera- 
tion, where  the  grant  is  expressed  to  be  on 
condition  that  the  land  shall  be  used  for  rail- 
road purposes  only,  and  that.  If  It  shall  cease 
to  be  so  used.  It  shall  revert  to  the  grantor ; 
and,  where  land  was  deeded  for  use  as  an  al- 
ley, but  with  the  further  provision  that  the 
grant  should  be  null  and  void  if  It  ceased  to 
be  used  for  that  purpose,  it  was  held  an  ease- 
ment Jones  on  Real  Property  Conveyancing, 
653.  In  all  this  class  of  cases  there  were 
sufficient  words  used  in  the  granting  Instru- 
ment itself  to  create  the  condition.  No  such 
words  as  "if  it  shall  cease  to  be  so  used  it 
shall  revert  to  the  grantor,"  or  "if  it  shall 
cease  to  be  so  used  It  shall  be  null  and  void," 
are  used  In  the  Instrument  In  question;  and 
it  is  very  apparent  why  authorities  of  this 
class  are  not  applicable.  There  Is  another 
class  of  cases  where  the  Instrument  Itself 
expressly  recites  that  only  an  easement  or  a 
right  of  way  is  Intended  to  be  granted,  but 
that  is  not  this  case  either.  There  Is  still 
another  class  of  cases  holding  that  where 
the  property  is  granted  for  a  specific  purpose, 
and  where  the  language  used  In  the  grant- 
ing Instrument  would  not  be  sufficient  to 
create  a  conditional  estate,  that  it  will  be 
construed  to  grant  an  easement  So  far  as 
we  are  able  to  find,  there  are  but  two  of 
these  cases.  Robinson  y.  Missisquol  R.  Co., 
59  Vt.  426,  10  Atl.  522,  and  Flaten  y.  Moor- 
head,  51  Minn.  518,  53  N.  W.  807,  19  L.  R. 
A.  195.  In  the  Vermont  Case  the  Instru- 
ment recited  "for  the  use  of  a  plank  road." 
The  principal  reasons  assigned  for  hold- 
ing the  grant  an  easement  were  that  the  land 
conveyed  was  a  strip  four  rods  wide  through 
an  entire  farm,  and  that  the  only  use  to 
which  it  could  be  put  was  a  right  of  way, 
and  that  the  consideration  was  grossly  in- 
adequate for  a  grant  in  fee.  In  the  Min- 
nesota case  the  language  of  the  granting  in- 
strument was  "provided  that  said  property 
shall  be  forever  held  for  a  city  park,"  and  in 
construing  that  grant  to  be  an  easement  the 
court  hy  Mitchell,  J.,  said:  "Taking  into 
consideration  that  the  grantee  was  a  munici- 
pality and  that  the  consideration  was  $1,  we 
conclude  that  an  absolute  fee  did  not  pass, 
but  only  an  easement."  In  the  case  of 
Soukup  y.  Topka,  54  Minn.  66,  66  N.  W.  824, 
the  Minnesota  court  later,  by  the  same 
Justice,  Mitchell,  In  considering  a  grant  con- 
taining the  words  "for  a  road  to  and  from 
the  above-described  premises,"  •  in  render- 
ing the  decision  and  after  referring  to  the 
decisions  in  the  case  of  Robinson  v.  Missis- 
quol R.  Co.  and  Flaten  v.  Moorhead,  said: 
"In  the  present  case  all  these  extrinsic  facts 
are  absent.  The  deed  conveys  the  laud  it- 
self, with  an  attempted  restriction  upon.  Ita 


use,  which  is  entirely  consistent  with  the 
passing  of  the  fee.  There  is  nothing  In  this 
deed  reserving  to  the  grantor  any  use  of  or 
dominion  over  the  land,  and  the  rule  Is,  if 
(he  grant  be  of  the  use  and  dominion  over 
the  land,  it  carries  the  land  itself."  In  this 
connection  la  also  section  195,  Rev.  Civ.  Code, 
which  provides:  "The  ownership  of  proj)- 
erty  is  absolute  when  a  single  person  has 
absolute  dominion  over  it  and  may  use  It  or 
dispose  of  it  according  to  his  pleasure  sub- 
ject only  to  general  laws."  If,  under  sec- 
tions 2980,  3002,  Comp.  Laws,  the  said  Chero- 
kee &  Dakota  Railway  Company  acquired 
the  said  land  by  purchase  with  full  power  to 
use  or  lease,  hold,  dispose  of,  or  sell  as  it 
saw  fit,  then  the  ownership  of  the  land  it- 
self passed  by  the  instrument  In  question, 
and  not  an  easement  There  Is  nothing  in 
the  instrument  in  -question  reserving  in  the 
grantors  any  use  of  or  dominion  over  the 
land,  nor  any  provision  whereby  the  grantors 
might  re-enter  or  resume  possession  in  case 
it  was  not  used  for  railway  purposes.  The 
use  of  the  words  therein,  "for  railway  pur- 
poses, and  no  other,"  Is  precisely  the  same 
as  used  in  many  of  the  cases  above  cited, 
which  hold  the  language  not  sufficient  to 
create  a  restriction  or  reservation,  but  simply 
amounted  to  an  attempt  to  restrict  the  use. 
The  land  granted  Is  about  two  city  blocks  In 
extent  indicating  station  and  depot  grounds 
(rather  than  right  of  way  for  tracks),  upon 
which  valuable  terminal  structures  might 
some  time  be  erected,  and  the  full  market 
value  of  the  fee  was  paid  as  consideration. 
All  the  attending  circumstances  indicate  a 
contract  of  bargain  and  sale  and  an  Inten- 
tion to  transfer  the  fee  title,  and  not  an 
easement. 

Finding  no  error  in  the  record,  the  judg- 
ment of  the  circuit  court  should  be  affirmed. 

CORSON,  J.  (dissenting).  I  am  unable  to 
concur  in  the  views  expressed  by  the  ma- 
jority of  the  court  or  In  the  decision  aflirm- 
Ing  the  judgment  of  the  court  below;  and, 
as  the  case  Involves  very  Important  ques- 
tions, I  deem  it  proper  to  state  somewhat 
at  length  my  views  as  to  the  law  applicable 
to  the  case. 

The  contention  of  the  appellants,  briefly 
stated.  Is  that  by  the  release  or  conveyance 
from  Annie  G.  Phillips  and  Hattle  C.  Phil- 
lips as  guardian  in  1887  the  railroad  com- 
pany acquired  an  easement  only  in  the 
premises  so  released,  and  that  the  leasing  to 
Sherman  Bros.  &  Bratager  and  to  the  de- 
fendants was  for  a  purpose  not  included  la 
the  easement  and  therefore  that  the  plain- 
tiffs retained  the  right  to  use  the  property 
for  all  purposes  excepting  those  comprised 
In  the  easement  and  that  they  are  entitled 
to  recover  the  rental  value  of  the  property 
from  the  time  It  was  demised  by  the  Il- 
linois Central  Railroad  Company  to  the 
Sherman  Bros.  &  Bratager,  and  to  the  pres- 
ent defendants.    Appellants  further  contend 


Digitized  by  VjOOQ  l€ 


&D.) 


SHERMAN  T.  SHERMAN. 


443 


that  the  alleged  conveyance  by  Annie  O. 
PhUlipa  and  Hattle  G.  Phillips  as  guardian 
w:js  not  approved  'as  required  by  the  pro- 
bate court,  and  therefore  that  the  convey- 
auee  was  Invalid,  and  not  binding  upon  the 
heirs  of  the  said  J.  I*  Phillips,  deceased.  It 
will  be  observed  that  by  the  terms  of  the  so- 
called  conveyance  the  said  Annie  C.  Phillips 
In  her  own  right,  and  Hattle  C.  Phillips  as 
guardian  of  the  minor  heirs,  made  the  al- 
leged conveyance  as  follows:  "Now  this  In- 
denture witnesseth;  that  the  plaintiffs  do 
hereby  discharge  and  forever  release  the  said 
Cherokee  &  Dakota  Railroad  Company  from 
all  damages  and  claims  whatsoever,  on  ac- 
count of  the  taking,  holding,  and  appropria- 
tion of  said  above-described  land  for  the 
purpose  aforesaid,  but  no  other."  The  conn- 
eel  for  the  defendants  in  support  of  the  con- 
clusion and  judgment  of  the  learned  circuit 
court  contend  that  under  the  laws  of  the 
territory  of  Dakota  as  they  existed  at  the 
time  of  the  so-called  original  conveyance  the 
railroad  company  acquired  a  fee-simple  title 
to  the  premises  In  controversy,  and,  under 
the  law  as  it  then  existed,  the  said  railroad 
company  had  full  power  and  authority  to 
make  a  iease  or  leases,  under  which  defend- 
ants claim,  for  any  purpose  they  might  deem 
proper  as  provided  In  subdivision  3  of  sec- 
tion 2980  of  the  (Compiled  Laws  of  1887, 
which  reads  as  follows:  "Every  corporation 
formed  under  this  article,  and  every  railroad 
corporation  authorized  to  construct,  operate 
or  maintain  a  railroad  within  this  territory 
shall  be  a  body  corporate  by  the  name  des- 
ignated In  its  articles,  shall  have  perpetual 
succession,  shall  have  the  right  to  sue  and 
be  sued,  may  have  a  common  seal  and  alter 
the  same  at  pleasure,  and  shall  also  have 
power:  •  ♦  •  to  acquire  under  the  pro- 
visions of  this  article  or  by  purchase,  all 
such  real  estate  and  other  property  as  may 
be  necessary  for  the  construction,  mainte- 
nance and  operation  of  its  railroad,  and  the 
stations,  depot  grounds,  and  other  accommo- 
dations reasonably  necessary  to  accomplish 
the  objects  of  Its  Incorporation;  to  hold  and 
use  the  same,  to  lease  or  otherwise  dispose 
of  any  part  or  parcel  thereof,  or  sell  the 
same  when  not  required  for  railroad  uses, 
and  no  longer  necessary  to  its  use." 

The  question  is  therefore  clearly  present- 
ed as  to  whether  or  not  the  railroad  com- 
pany acquired  by  the  release  from  the  Phil- 
lips heirs  an  actual  fee  In  the  property,  or 
only  an  easement  therein  for  railroad  pur- 
poses. If  the  railroad  acquired  a  title  in 
fee,  then,  under  the  section  of  the  statute 
above  quoted,  it  was  fully  authorized  to  lease 
or  dispose  of  the  property  owned  by  it,  and 
not  required  by  it  for  railroad  purposes,  to 
any  party  and  for  any  purpose  that  It  might 
deem  proper.  If,  on  the  other  hand,  the 
railroad  company  simply  acquired  an  ease- 
ment or  right  of  way  for  railroad  purposes 
only,  then  the  company  was  not  authorized 
to  lease  or  dispose  of  any  portion  of  the 


property  not  required  by  it  foe  railroad  pur- 
poses, and  the  plaintiffs  would  be  entitled  to 
recover  a  fair  rental  value  of  the  property 
during  the  time  It  was  occupied  and  used 
for  warehouse  purposes  by  the  defendants,  as 
In  such  case  the  use  of  the  property  would 
be  limited  to  its  use  by  the  raUroad  company 
for  railroad  purposes  only.  Prior  to  1877 
Congress  sterns  not  to  have  provided  for 
condemnation  proceedings  or  authorized  the 
territory  to  pass  laws  for  that  purpose.  By 
an  act  approved  March  3,  1875  (Act  March 
3,  1875,  c.  152,  18  Stat  482  [U.  S.  Comp. 
St.  1901,  p.  ISeS]),  by  the  third  section  it  is 
provided :  "That  the  Legislature  of  the  prop- 
er territory  may  provide  for  the  manner  in 
which  private  lands  and  possessory  claims 
on  the  public  lands  of  the  United  States  may 
be  condemned ;  and,  where  such  provision 
shall  not  have  been  made,  such  condemnation 
may  be  made  in  accordance  with  section 
3  of  the  act  entitled  'An  act  to  aid  In 
the  construction  of  a  railroad  and  telegraph 
line  from  the  Missouri  river  to  the  Pacific 
Ocean,  and  to  secure  to  the  government  the 
use  of  the  same  for  postal,  military  and 
other  purposes,  approved  July  first,  eighteen 
hundred  and  sixty-two,'  approved  July  sec- 
ond, eighteen  hundred  and  sixty-four."  In 
1877  the  Legislature  of  this  territory  enact- 
ed a  railroad  condemnation  act  which  pro- 
vides as  follows:  "Any  railroad  corpora- 
tion may  purchase  and  use  real  property  for 
a  price  to  be  agreed  upon  with  the  owners 
thereof;  or  the  damages  to  be  paid  by  such 
corporation  for  any  real  property  taken  as 
aforesaid,  when  not  agreed  upon,  shall  be 
ascertained  and  determined  by  commission- 
ers to  be  appointed  by  the  Judge  of  the  dis- 
trict court  of  the  county  or  judicial  subdivi- 
sion, wherein  such  real  estate  is  situated.  In 
conformity  with  the  provisions  of  this  ar- 
ticle. *  »  •  Whenever  any  railroad  cor- 
poration shall  take  any  real  property  as 
aforesaid,  of  any  minor,  any  person  insane 
or  otherwise  Incompetent,  or  of  any  married 
woman  whose  husband  is  under  guarClan- 
shlp,  the  guardian  of  such  minor,  insane  or 
Incompetent  person,  or  such  married  woman 
with  the  guardian  of  her  husband,  may 
agree  and  settle  with  said  corporation  for 
all  damages  or  claims  by  reason  of  the 
taking  of  such  real  property  and  may  give 
valid  releases  and  discharges  therefor  upon 
the  approval  thereof  by  the  judge  of  the  pro- 
bate court"  Civ,  Code  1877,  S§  451,  454. 
This  act  was  modeled  after  the  Union  Pacific 
Railroad  act  passed  by  Congress  In  18G4  (Act 
July  2,  1864.  c.  216,  13  Stat  356),  and  con- 
tained provisions  almost  Identical  with  those 
of  that  act,  but  a  more  careful  comparison 
of  the  provisions  of  the  two  acts  will  show 
a  manifest  distinction  between  the  two.  In 
the  Union  Pacific  Railroad  act  (section  3),  it 
Is  provided  "that  the  guardian  may  agree 
with  the  company  as  to  the  damages  sustain- 
ed •♦  •  and  ui>on  such  agreement  being 
made  and  approved  by  the  court  having  su- 


Digitized  by  VjOOQ  IC 


446 


122  NOBTHWESTERN  BEPOBTEB. 


(S.D. 


perrislon  of  the  official  acts  of  said  guardian, 
said  guardian  shall  have  full  power  to  make 
and  execute  a  conveyance  thereof  to  said 
company  which  shall  vest  the  title  thereto 
In  the  said  company."  By  the  Dakota  act 
It  is  provided  for  a  like  agreement  and  set- 
tlement, and  then  says :  "That  the  guardian 
may  give  a  valid  release  and  discharge  there- 
for upon  the  approval  thereof  "hy  the  judge 
of  the  probate  court"  It  will  thus  be  no- 
ticed that,  while  by  the  Union  Pacific  Rail- 
road Company  act  the  guardian  Is  authorized 
to  make  and  execute  a  conveyance  of  the 
property  to  said  company  which  shall  vest 
the  title  thereto  In  the  said  company,  by  the 
Dakota  act  It  is  provided  that  the  guardian 
may  grant  valid  releases  and  discharges 
therefor  upon  the  approval  thereof  by  the 
Judge  of  the  probate  court  This  distinc- 
tion Is  very  important  as  by  the  Union 
Pacific  Bailroad  Company  act  the  guardian 
is  authorized  to  vest  the  title  of  the  minors 
in  the  railroad  company,  by  the  Dakota  act 
the  guardian  Is  only  authorized  to  release 
the  damages,  but  no  provision  is  made  for 
the  conveyance  of  the  title  in  fee  to  the 
company. 

It  Is  contended  by  the  appellants  that  the 
distinction  between  the  two  'acts  Is  imiwrt- 
ant.  in  that  the  act  of  1877  enacted  by  the 
Legislature  of  the  territory  of  Dakota  clear- 
ly shows  that  It  was  not  the  intention  of 
that  body  to  vest  in  the  railroad  company 
anything  more  than  an  easement  or  right 
of  way  for  railroad  purposes,  and  that  was 
the  only  effect  of  the  instrument  executed  by 
the  guardian,  Hattle  0.  Phillips,  and  Annie 
C.  Phillips  to  the  company.  There  is  much 
force  in  the  contention  of  the  appellants. 
The  recitals  in  the  release  clearly  show  that 
it  was  not  the  Intention  of  the  Legislature 
that  a  title  in  fee  should  l>e  vested  in  the 
railroad  company.  This  instrument,  as  will 
be  observed,  does  not  purport  to  convey  the 
property  to  the  railroad  company,  or  any  in- 
terest therein,  but  simply  releases  the  com- 
pany from  any  damages  the  parties  may 
sustain  by  reason  of  the  construction  of  said 
railroad.  It  Is  Important  to  notice  the  first 
recital  in  this  Instrument,  which  is :  "Where- 
as, the  Cherokee  &  Dakota  Railroad  Com- 
pany deem  It  necessary  to  take,  hold  and  ap- 
propriate for  the  purpose  of  station  grounds, 
tracks,  side  tracks,  switches,  for  the  loca- 
tion, construction,  and  convenient  use  of  its 
railroad  but  for  no  other  purpose,  the  fol- 
lowing described  real  estate." 

The  release  seems  to  have  been  drawn 
with  great  care  and  with  the  evident  purpose 
of  limiting  the  use  of  the  property  described 
in  the  release  to  railroad  purposes  only,  and 
the  language  used  in  the  instrument  clearly 
Indicates  that  It  was  the  intention  of  Annie 
0.  Phillips  and  Hattle  C.  Phillips  as  guard- 
Ian  to  release  their  Interest  in  the  property 
for  right  of  way  purposes  only.  It  seems  to 
be  the  general  rule  that  such  instruments 
should  be  strictly  construed  in  accord  with 


the  manifest  intention  of  the  parties,  and  it 
seems  to  be  the  general,  if  not  the  universal, 
rule,  unless  the  intention  to  vest  in  the 
company  a  title  in  fee  simple  is  clearly  ex- 
pressed, to  construe  such  instruments  as 
vesting  In  the  company  a  right  of  way  only. 
Washington  Cemetery  v.  Prospect  Park  &  C. 
I.  R.  Co.,  68  N.  Y.  691;  Lyon  v.  McDonald. 
78  Tex.  71,  14  S.  W.  261,  9  L.  R.  A.  295,  and 
note;  New  Jersey  Zinc  &  Iron  Co.  v.  Morris 
Canal  &  Banking  Co.,  44  N.  J.  Eq.  393,  15  Ati. 
227,  1  L.  R.  A.  133-136;  Fltchburg  Ry.  Co.  v. 
Frost,  147  Mass.  118, 16  N.  E.  773;  Heyneman 
V.  Blake,  19  Gal.  579;  Quick  v.  Taylor,  113  Ind. 
640,  16  N.  E.  588;  Williams  v.  Western  Un- 
ion Ry.  Co.,  60  Wis.  71,  6  N.  W.  482;  Heard 
V.  City  of  Brooklyn,  60  N.  Y.  242;  Kansas 
Central  Ry.  Co.  v.  Allen,  22  Kan.  285,  31 
Am.  Rep.  190.  In  such  cases  the  railroad 
company  is  not  authorissed  to  use  the  prop- 
erty taken  by  It  for  any  purpose  other  than 
some  proper  railroad  purpose,  and  where, 
as  in  the  case  at  bar,  it  attempts  to  lease 
portions  of  the  property  to  individuals  or 
companies  to  be  used  for  their  own  private 
purposes,  such  leases  are  absolutely  void, 
and  parties  occupying  the  premises  under 
such  leases  are  liable  to  the  owners  in  fee  for 
the  value  of  the  use  and  occupation  of  such 
premises  while  holding  the  same  under  re- 
lease. Lance's  Appeal,  63  Pa.  25,  93  Am. 
Dec.  722;  Proprietors  of  Locks  and  Canals 
V.  Nashua  &  Lowell  R,  R.  Co.,  104  Mass.  1, 
6  Am.  Rep.  181;  Forney  v.  Fremont,  E:  & 
M.  V.  B.  Co.,  23  Neb.  405,  36  N.  W.  800; 
Lyon  V.  McDonald,  78  Tex.  71,  14  S.  W.  261, 
9  L.  R.  A.  295;  Roby  v.  New  York  Central 
&  Hudson  R.  R.  Co.,  65  Hun,  532,  20  N.  Y. 
Supp.  551;  Cincinnati,  etc.,  R.  R.  Co.  v. 
Gelsel,  119  Ind.  77,  21  N.  E.  470;  Roby  v. 
Yates,  70  Hun,  35,  23  N.  Y.  Supp.  1108.  In 
Lance's  Appeal,  supra,  the  Supreme  Court 
of '  Pennsylvania  in  discussing  this  question 
says:  "The  right  of  the  commonwealth  to 
take  private  property  without  the  owner's 
consent  on  compensation  made,  or  to  author- 
ize It  to  be  taken,  exists  in  her  sovereign 
right  of  eminent  domain,  and  can  never  be 
lawfully  exercised  but  for  a  public  use — sup- 
posed and  Intended  to  benefit  the  public,  ei- 
ther mediately  or  immediately.  •  The  power 
arises  out  of  that  natural  principle  which 
teaches  that  private  convenience  must  yield 
to  the  public  wants.  This  public  interest 
must  be  at  the  basis  of  the  exercise,  or  it 
would  be  confiscation  and  usurpation  to  ex- 
ercise it.  This  l)eing  the  reason  for  the  ex- 
ercise of  such  power,  it  requires  no  argument 
to  prove  that,  after  the  right  has  been  ex- 
ercised, the  use  of  the  property  must  be  held 
in  accordance  with  and  for  the  purpose 
which  Justified  its  taking.  Otherwise  it 
would  be  a  fraud  upon  the  owner,  and  an 
abuse  of  power.  Hence  it  is  that  no  one  can 
pretend  that  a  railroad  company  may  build 
private  houses  and  mills,  or  erect  machinery 
not  necessarily  connected  with  the  use  of 
their  franchise,  within  the  limits  of  their 


Digitized  by  VjOOQ  l€ 


S.D.) 


SHERMAN  T.  SHERMAN. 


447 


Tight  of  way.  If  It  could,  stoies,  taverns, 
shops,  groceries,  and  dwellings  might  be 
made  to  line  the  sides  of  the  road  outside  of 
the  track,  a  thing  not  to  be  thought  of  under 
the  terms  of  the  acquisition  of  the  right  of 
way.  •  •  •  Xhey  were  not  empowered  to 
use  the  exclusive  right  of  way  granted  to 
each  for  any  other  Independent  purpose  than 
that  for  which  it  was  granted.  The  fee  re- 
mained in  the  private  owner,  and  outside  of 
the  authorized  use,  which  must  be  public  or 
incidental  to  the  public  use,  the  proprietary 
rights  are  in  the  original  owner." 

In  the  case  of  Proprietors  of  Locks,  etc., 
y.  Nashua  &  Lowell  R.  R.  Co.,  supra,  104 
Mass.  1,  6  Am.  Rep.  181,  the  railroad  com- 
pany had  taken  by  right  of  eminent  do- 
main, a  right  of  way  across  certain  property, 
and  bad  constructed  thereon  a  freightbouse 
which  they  continued  to  use  for  several 
years  when  they  established  a  freight  depot 
elsewhere,  and  then  leased  to  a  firm  the 
freight  depot  and  grounds  so  formerly  used 
by  it,  to  be  used  by  them  In  their  business  as 
flour  and  produce  dealers.  And  in  the  ac- 
tion by  the  original  owners  of  the  property 
against  the  lessees  to  recover  judgment,  and 
on  appeal,  the  Supreme  Court  of  Massachu- 
setts uses  the  following  language:  "Although 
the  railroad  corporation  may  derive  some 
advantage  In  its  freighting  business  from 
the  carriage  of  goods  for  its  tenants,  and 
from  the  receipt  and  delivery  of  their  goods 
at  these  buildings,  instead  of  its  own  freight- 
houses,  yet  we  think  it  would  be  a  distor- 
tion of  the  agreed  statement  to  regard 
these  circumstances  as  sufficient  to  qualify 
the  character  of  the  occupation  of  the  biilld- 
Ings  so  as  to  bring  It  within  the  range  of  any 
purpose  for  which  the  corporate  franchises 
were  granted.  •  •  •  The  fee  of  the  land 
remains  In  the  original  owners,  notwith- 
standing the  location  of  the  road.  It  is  true 
the  nature  of  the  use  for  which  the  land  is 
taken  Is  such  as  may  require,  and  therefore 
authorize,  complete  possession  and  control 
by  the  railroad  corporation.  The  occupation 
and  use  of  land  which  It  is  entitled  to  enjoy 
is  declared  to  be  'permanent  in  its  nature, 
and  practically  exclusive.'  *  •  •  But, 
however  extensive  the  right  which  the  cor- 
poration thus  takes  by  its  location,  it  Is  not 
a  fee,  nor  a  freehold  estate,  but  an  easement 
only:  not  a  corporeal  Interest,  but  an  incor- 
poreal right.  Its  right  of  occupation,  how- 
ever exclusive,  is  incidental  only,  and  as  a 
means  of  exercising  the  privileges  and  per- 
forming the  functions  dellned  by  its  charter. 
•  •  •  The  owner  of  the  fee  in  the  land 
thus  subjected  to  a  public  easement  may 
maintain  an  action  of  trespass  or  a  writ  of 
entry  against  any  one  whose  entry  or  acts 
upon  the  premises  would  support  the  action, 
unless  he  can  justify  under  the  authority  of 
the  party  having  the  easement  •  •  •  Any 
uses  of  the  land  confessedly  for  other  pur- 
poses, or  not  apparently  for  purposes  per- 
mitted by  its  charter,  are  not  protected  by 


its  authority.  For  such  uses  the  owner  may 
have  his  redress  by  an  appropriate  action. 
♦  •  •  In  the  present  case,  the  occupation 
of  the  buUdings  upon  the  demanded  premises 
for  the  general  purposes  of  trade  and  me- 
chanical or  manufacturing  business  by  les- 
sees having  no  other  connection  with  the 
operations  or  Interests  of  the  corporation 
tliau  as  Its  tenants  paying  rent,  and  the 
conversion  of  those  buildings  by  the  corpo- 
ration from  their  original  design  into  private 
stores  or  shops  for  the  purpose  of  so  chang- 
ing their  use,  placed  them  beyond  the  scope 
of  the  corporate  purposes  and  functions.  It 
Is  such  an  occupation  of  the  land  as,  with- 
out warrant  from  the  public  authority,  in- 
volves an  assumption  of  ownership,  and  en- 
titles the  demandants  to  treat  the  corpora- 
tion as  tenant  of  the  freehold  by  disseisin. 
Ihe  fact  that  the  corporation  has  a  valid 
easement,  which  entitles  it  to  a  greater  or 
less  use  of  the  land  for  other  purposes,  is  no 
impediment  to  a  recovery  by  the  demandants 
In  this  action;  for  the  Judgment  will  be  ren- 
dered subject  to  such  valid  easement  as  the 
tenant  actually  has.  *  •  •  But  they  are 
entitled  to  a  judgment  which  will  establish 
their  title  and  rights  as  owner  of  tlie  fee, 
and  secure  to  them  proper  damages  for  the 
wrongful  use  of  the  land,  as  wSU  as  their 
costs  of  suit.  •  •  •  As  to  the  land  within 
the  limits  of  the  location,  the  tenant  has 
made  use  of  it  for  a  valuable  purpose.  Its 
charter  affords  no  justification  of  that  use, 
and  no  protection  against  the  claim  of  the 
owner  of  the  fee  for  the  mesne  profits  against 
any  disseisor." 

It  is  further  contended  by  respondents  In 
support  of  the  conclusions  and  judgment  of 
the  learned  trial  court  that  the  plaintiffs  are 
now  estopped  from  asserting  any  claim  to  the 
property  by  reason  of  their  laches  in  remain- 
ing so  long  silent,  after  they  attained  their 
majority,  before  taking  any  proceedings  to 
assert  their  rights  as  heirs  of  the  estate  of 
J.  L.  Phillips,  deceased,  as,  if  they  were  not 
bound  by  the  proceedings  resulting  in  the 
release  signed  by  their  guardian,  they  had 
full  knowledge  of  all  the  facts  pertaining  to 
the  occupati«n  of  the  premises  by  the  de- 
fendants for  a  number  of  years  prior  to  the 
commencement  of  the  present  action.  There 
Is  no  finding,  however,  in  the  record  that  the 
defendants  were  in  any  manner  misled  or 
made  any  expenditure  of  money  by  reason 
of  the  omission  of  the  plaintiffs  to  assert 
their  rights  at  an  earlier  date.  All  the  pro- 
ceedings In  regard  to  the  transactions  be- 
tween the  heirs  through  their  guardian  and 
the  railroad  companies  were  matters  of  rec- 
ord and  defendants  had  constructive  notice 
therefore  of  the  rights  they  were  acquiring 
by  reason  of  their  lease  from  the  railroad 
company.  In  order  to  invoke  a  doctrine  of 
estoppel,  it  devolved  upon  the  defendants  to 
show  affirmatively  (1)  "that  the  party  mak- 
ing the  admission  by  his  declarations  or  con- 
duct was  apprised  of  the  true  state  of  his 


Digitized  by  VjOOQ  l€ 


44d 


122  NORTHWESTERN  REPORTER. 


(MtniL 


Own  title;  (2)  tbat  lie  made  the  admission 
witb  the  express  Intention  to  deceive,  or  with 
such  careless  and  culpable  negligence  as  to 
.  amount  to  constructive  fraud;  (3)  that  the 
other  party  was  not  only  destitute  of  all 
knowledge  of  the  true  state  of  the  title,  but 
of  the  means  of  acquiring  such  knowledge; 
and  (4)  thai;  he  relied  directly  upon  sucli  ad- 
mission, and  win  be  injured  by  allowing  its 
truth  to  be  disproved."  BIddle  Boggs  v. 
Merced  Mining  Co.,  14  Cal.  279-^66;  Brant 
V.  Virginia  Coal  &  Iron  Co.,  93  U.  S.  326,  23 
L.  Ed.  927.  The  former  Is  regarded  as  a 
leading  case  upon  this  subject  In  the  latter 
case  the  learned  Supreme  Court  of  the  Unit- 
ed States,  speaking  by  Mr.  Justice  Field,  who 
wrote  the  opinion  in  the  case  of  Biddle  Boggs 
V.  Merced  Mining  Co.,  supra,  says  that:  "It 
Is  difficult  to  see  where  the  doctrine  of  equi- 
table estoppel  comes  In  here.  For  the  appli- 
cation of  that  doctrine  there  must  generally 
be  some  Intended  deception  in  the  conduct  or 
declarations  of  the  party  to  be  estopped,  or 
such  gross  negligence  on  his  part  as  to 
amount  to  constructive  fraud,  by  which  an- 
other has  been  misled  to  his  Injury.  'In  all 
this  class  of  cases,'  says  Story,  'the  doctrine 
proceeds  upon  the  ground  of  constructive 
fraud  or  of  gross  negligence,  which  in  effect 
implies  fraud;  and,  therefore,  when  the  cir- 
cumstances of  the  case  repel  any  such  In- 
ference, although  there  may  be  some  degree 
of  negligence,  yet  courts  of  equity  will  not 
grant  relief.  It  has  been  accordingly  laid 
down  by  a  very  learned  Judge  that  the  cases 
on  this  subject  go  to  this  result  only:  That 
there  must  be  positive  fraud  or  concealment 
or  negligence  so  gross  'as  to.  amount  to  con- 
structive fraud.'  1  Story's  Eq.  891.  To  the 
same  purport  is  the  language  of  the  adjudged 
cases.  Thus  It  Is  said  by  the  Supreme  Court 
of  Pennsylvania  that  'the  primary  ground 
of  the  doctrine  Is  that  it  would  be  a  fraud 
In  a  party  to  assert  what  his  previous  con- 
duct had  denied  when  on  the  faith  of  that 
denial  others  have  acted.  The  element  of 
fraud  Is  essential  either  in  the  intention  of 
the  party  estopped  or  in  the  effect  of  the  evi- 
dence which  be  attempts  to  set.  up.'.  Hill  v. 
Epley,  31  Pa.  334;  Henshaw  v.  Blssell,  18 
Wall.  271,  21  L.  Ed.  835;  Biddle  Boggs 
V.  Merced  Mining  Co.,  14  Cal.  368;  Davis 
V.  Davis,  26  Cal.  23,  85  Am.  Dec.  157  ;  Com- 
monwealth V.  Moltz,  10  Barr  (Pa.)  531,  51 
Am.  Dec.  499 ;  Copeland  v.  Copeland,  28  ile. 
539;  Delplaine  v.  Hitchcock,  6  Hill  (N.  Y.) 
16;  Hawes  v.  Marchant,  1  Curt  136,  Fed. 
Cas.  No.  6,240;  Zuchtmann  v.  Roberts,  109 
Mass.  63,  12  Am.  Rep.  663.  •  •  •  It  Is 
also  essential  for  Its  application  with  respect 
to  the  title  of  real  property  tbat  the  party 
claiming  to  have  been  influenced  by  the  con- 
duct or  declarations  of  another  to  his  Injury 
was  himself  not  only  destitute  of  knowledge 
of  the  tnie  state  of  the  title,  but  also  of  any  I 


convenient  and  available  m&ns  of -acquiring 
such  knowledge.  Where  the  conditions  of  the 
title  are  known  to  both  parties  or  both  have 
the  same  means  of  ascertaining  the  truth, 
there  can  be  no  estoppel.  Crest  v.  Jack,  3 
Watts  (Pa.)  240,  27  Am.  Dec.  353 ;  KnoulT  v. 
Thompson,  16  Pa.  361." 

As  before  stated,  the  defendants  in  the 
case  at  bar  did  or  could  have  ascertained 
from  the  record  all  the  facts  pertaining  to 
this  release  by  the  heirs  of  the  estate  of 
Phillips,  and,  so  far  as  the  record  discloses, 
neither  of  these  plaintiffs  as  the  heirs  of  said 
Phillips  made  any  representations  to  the  de- 
fendants, or  did  any  act  calculated  to  Infio- 
ence  or  mislead  them.  I  am  of  the  opinion, 
therefore,  that  the  contention  of  the  re- 
spondents that  the  plaintiffs  were  estopped 
from  asserting  their  rights  by  reason  of  their 
delay  in  Instituting  this  action  cannot  be 
sustained.  It  may  be  proper  to  remark  tbat 
this  court  has  recently  held  that  the  doctrine 
of  laches  Is  not  applicable  to  actions  at 
law,  but  are  limited  to  actions  in  equity. 
Burleigh  v.  Hecht  et  al.  (S.  D.)  117  N.  W.  367. 
Hence  the  delay  of  the  plaintiffs  in  assert- 
ing their  rights  short  of  the  time  limited  by 
the  statute  of  limitations  cannot  avail  the 
defendants  In  this  action.  Section  7  of  arti- 
cle 17  of  the  Constitution  of  this  state  pro- 
vides: "No  corporation  shall  engage  In  any 
business  other  than  that  expressly  authorized 
In  its  charter,  nor  shall  it  take  or  hold  any 
real  estate  except  such  as  may  be  necessary 
and  proper  for  its  legitimate  business."  By 
section  13,  article  6,  Const.,  it  is  provided: 
"The  fee  of  land  taken  for  railroad  tracks 
or  other  highways  shall  remain  in  the  own- 
ers, subject  to  the  use  for  which  It  is  taken.'* 

These  provisions  of  the  state  Constitution, 
though  adopted  subsequently  to  the  act  of  the 
Legislature,  seem  to  be  in  harmony  with  that 
act,  and  clearly  support  the  construction 
that  I  have  given  to  the  act,  and  my  conclu- 
sion therefore  is  that  the  learned  circuit 
court  erred  in  entering  judgment  in  favor  of 
the  defendants,  and  in  my  opinion  the  judg- 
ment of  that  court  should  be  reversed. 


STATE  V.  WHITBJ. 
(Supreme  Court  of  Minnesota.     July  9,  1909.) 
Embezzlement   (J   44»)  —  Evioence  —  Suffi- 

CIENCT. 

Defendant  was  found  Ruilty  under  an  in- 
dictment charging  him  with  embezzlement  of 
money  intrusted  to  him.  with  felonious  intent 
at  the  time  of  the  appropriation  to  appropriate 
the  same  to  his  own  use.  It  is  held  that  the 
evidence,  tending  to  show  that  the  money  was 
intrusted  to  defendant  to  invest  for  complain- 
ing witness  as  distinguished  from  being  loaned 
to  him,  involves  such  doubt  as  to  require  a  new 
trial. 

[Ed.    Note.— For  other   cases,   see   Embezzle- 
ment, Dec.  Dig.  S  44.*] 

(Syllabus  by  the  Court.) 


•For  otber  cues  see  same  topic  and  section  NUMBER  in  Dec.  A  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  LjOOQ  IC 


Minn.) 


STATE  V.  WHITB5. 


U9 


Appeal  from  District  Court,  Hennepin 
County ;  Andrew  Holt,  Judge. 

Samuel  Wliite  was  convicted  of  embezzle- 
ment. From  an  order  denying  a  new  trial, 
he  appeals.    Reversed.* 

W.  B.  Anderson,  for  appellant  George  T. 
Simpson,  AI.  J.  Smith,  and  John  F.  Bemha- 
gen,  for  the  State. 

JAGGABD,  J.  The  indictment,  under 
which  defendant  was  tried,  charged  that  as 
agent  of  one  Lottie  R.  Sheldon  he  had  in  bis 
possession  $1,020  of  her  money,  and  that  he 
feloniously  appropriated  that  money  to  bis 
own  use  and  eml>ezzled  the  same  without  her 
consent,  with  the  Intention  to  deprive  her  of 
ber  said  property  and  to  appropriate  the  same 
to  bis  own  use.  It  appeared  on  trial  that  a 
civil  action  bad  previously  been  begun  by 
said  Sheldon  against  this  defendant  to  re- 
cover said  money,  and  that  the  money  had 
not  In  fact  been  paid.  The  Jury  returned  a 
verdict  of  guilty.  This  appeal  was  talcen 
from  the  order  of  the  trial  court  denying 
defendant's  motion  for  a  new  trial. 

A  number  of  errors  are  assigned  as  to  rul- 
ings on  evidence,  none  of  which,  upon  the 
record  before  us  and  the  brief  for  defendant, 
would  justify  granting  a  new  trial.  The 
gist  of  this  appeal  concerns  the  sufficiency 
of  the  evidence  to  sustain  the  conviction. 
The  rule  is  clear  that,  If  the  evidence  Is  not 
of  such  character  as  to  show  the  guilt  of  the 
accused  beyond  a  reasonable  doubt,  a  new 
trial  should  be  granted.  Brown  v.  State,  125 
Ga.  8,  53  S.  E.  767.  Defendant  was  charged 
with  embezzlement  of  money  intrusted  to 
him,  with  felonious  Intent  at  the  time  of  the 
allied  appropriation  to  appropriate  the  same 
to  his  own  use.  The  burden  of  proof  rested 
upon  the  state  to  sufficiently  establish  the  ex- 
istence of  that  Intention.  In  the  case  at  bar 
defendant's  son  testified  that  the  money  was 
loaned  to  him  "if  he  woiild  pay  her  [Lottie 
Sheldon]  20  per  cent  interest"  In  this  view 
of  the  facts  be  Is  corroborated  and  contradict- 
ed by  a  number  of  witnesses.  If  this  were  all 
the  record  presented,  the  question  would 
clearly  have  been  one  for  the  Jury.  The  ability 
of  defendant  to  prevail  in  this  appeal  depends 
upon  the  insufficiency  of  the  evidence  of  the 
■tate  to  show  that  defendant  was  intrusted 
with  money  to  invest  for  the  complaining 
witness.  This  Involves  a  consideration  of 
writings  In  the  case,  the  testimony  of  the 
attorney  for  the  complaining  witness,  and 
the  conduct  of  that  witness. 

The  defendant  executed  to  the  complaining 
witness  a  series  of  receipts  at  ditTerent  times 
for  different  amounts,  all  in  essentially  the 
same  form:    "Received  of  Lottie  R.  Sheldon 

$ for  loaning  purposes."    These  were 

all  signed  by  the  defendant  and  delivered  to 
and  retained  by  the  complaining  witness. 
The  language  was  evidently  ambiguous.  It 
was  consistent  with  the  state's  contention 
that  the  money  was  delivered  to  the  defend- 
ant to  be  loaned  by  him  as  agent  of  the  com- 
122  N.W.— 29 


plaining  witness  under  kn  agreement  testi- 
fied to  orally,  that  he  should  pay  her  10  per 
cent  interest.  It  was  also  consistent  with 
defendant's  claim  that  he  never  became  her 
agent  but  received  money  as  a  loan  from  her 
on  his  promise  to  repay  It  when  so  requested 
with  20  per  cent  Interest  which  money  was 
to  be  used  for  loaning.  In  any  view,  the  re- 
ceipts were  not  conclusive  as  to  the  point 
under  consideration. 

The  record,  including  letters  between  de- 
fendant and  the  complaining  witness,  and 
the  testimony  of  the  complaining  witness 
and  of  ber  counsel  In  the  action  brought  on 
the  clvU  liability,  are  significant  in  this:  Nei- 
ther the  complaining  witness  nor  her  attor- 
ney ever  asked  for  any  Information  concern- 
ing persons  to  whom  her  money  had  been 
loaned,  or  concerning  the  time  for  which 
loans  bad  been  negotiated,  or  concerning  pay- 
ments thereon  or  defaults  therein.  No  se- 
curities which  represented  investments  by 
blm  for  her  were  ever  asked  for,  nor  was 
the  subject  ever  referred  to.  She,  never  In 
any  letter  which  appears  In  this  record  re- 
ferred to  Investments  of  loans,  notes,  or 
otherwise  made  by  defendant  for  her.  On 
the  contrary,  she  wrote  him  asking  for 
money.  In  one  letter  she  wrote:  "Will 
you  please  send  me  the  interest  due  me  for 
July  and  August.  •  •  •  I  did  not  think 
I  would  have  to  call  on  you  at  present  but 
find  it  necessary."  In  another  letter  she 
wrote:  "  •  •  •  Also  reckon  my  Interest 
to  date  and  send  me  statement  You  asked 
me  some  time  ago  how  much  I  had  given  you 
this  year."  Again:  "»  •  ♦  Mr.  Brown 
tells  me  you  are  doing  your  best,  he  thinks. 
I  hope  you  can  have  at  least  $500  for  me 
soon,  before  my  chance  is  lost  of  doubling 


my  money.' 


"I  hope  you  have  the  whole 


$500  for  me.  If  not,  must  have  it  very  soon. 
I  am  sorry  I  could  not  have  had  it  sooner, 
as  it  baa  meant  a  loss  to  us  of  $200  or  more. 
I  did  not  think  I  would  have  to  wait  so  long 
after  asking  for  It  or  I  should  not  have  put 
all  I  have  with  you."  These  are  not  letters 
which  would  naturally  be  written  by  a  per- 
son having  Investments  or  securities  In  the 
hands  of  her  agent  It  is  to  be  noted  that 
they  contain  no  request  whatever  to  realize 
on  her  notes.  Her  attorney  testified  that 
he  had  conversations  over  the  telephone  in 
which  he  Insisted  upon  getting  the  money 
and  (defendant)  did  not  refuse  to  pay,  but 
did  not  pay.  No  letters  were  written  by  or  to 
blm.  Defendant  did  not  pay  this  money  after 
demand  was  made  upon  him,  through  the  civil 
action  brought  by  complaining  witness  in  the 
district  court  Defendant's  position  in  the 
matter  was  "that  the  complaining  witness 
should  have  the  money."  It  is  true  that  it 
appears  that  an  accounting  from  defendant 
was  demanded.  "The  defendant  neither  paid 
the  money  nor  accounted."  This  was  am- 
biguous. The  accounting,  so  far  as  it  ap- 
pears, might  have  been  made  by  the  defend- 
ant as  a  debtor  to  his  creditor,  the  complaln- 


Digitized  by  VjOOQ  l€ 


460 


122  NOBTHWESTERN  BEPOBTEB. 


(Minn. 


lug  witness,  qalte  as  well  as  by  blm  as  an 
Investor  for  her. 

Taking  the  testimony  .referred  to  as  a 
whole,  it  has  raised  In  our  mind  such  doubt 
as  to  what  the  relationship  between  the  com- 
plaining witness  and  defendant  really  was 
that  we  feel  constrained  to  grant  a  new  trial. 

Reversed. 


MINNEAPOLIS,  ST.  P.,  B.  ft  D.  ELECTBIC 

TRACTION  CO.  v.  HABKINS. 
(Supreme  Court  of  Minnesota.    July  23,  1909.) 

1.  Eminent   Douain    (S   131*)  —  Raiusoad 
RiGirr  of  Wat— Measure  of  Dauaoes. 

Ttie  landowner,  in  condemnation  proceed- 
inz8  by  a  railway  company,  is  entitled  to  the 
difference  between  the  mai-ket  value  of  bis  land 
at  the  time  the  damages  are  assessed,  without 
any  deduction  or  offset  on  account  of  any  in- 
crease in  its  market  value  In  common  with 
other  lands  in  the  vicinity,  due  to  the  construc- 
tion or  proposed  construction  of  the  railroad 
through  that  locality,  or  other  general  benefits, 
and  the  market  value  of  his  land  with  the  rail- 
road constructed  and  operated  over  it. 

[Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  !  353 ;   Dec  Dig.  $  131.»] 

2.  Erroneous  Measube  of  Dauages. 

It  was  reversible  error  to  instruct  the  jury 
In  this  case  to  the  effect  that  the  measure  of 
the  landowner's  damages  was  the  difference  in 
the  value  of  his  land  with  the  railroad  near  but 
not  on  it  and  its  value  with  the  railroad  upon 
It.  Carii  V.  Railway  Co.,  16  Minn.  260  (Gil. 
234),  and  Morin  v.  Railway  Co.,  SO  Minn.  100, 
14  N.  W.  460,  followed. 
(Syllabus  by  the  Court) 

Appeal  from  District  Oourt,  Dakota  Coun- 
ty ;  F.  M.  Crosby,  Judge. 

Condemnation  proceeding  by  the  Minne- 
apolis, St  Paul,  Rochester,  ft  Dubuque  Elec- 
tric Traction  Company  against  James  Har- 
klns.  From  the  award  of  the  commission- 
ers, the  traction  company  appealed  to  the 
district  court,  where  there  was  an  award  in 
an  increased  amount;  and  from  an  order 
denying  Its  motion  for  a  new  trial,  the  trac- 
tion company  appeals.    Reversed. 

M.  H.  Boutelle  and  R.  T.  Boardman,  for 
appellant  Hodgson  ft  Lowell,  for  respond- 
ent. 

START,  C.  J.  The  Minneapolis,  St  Paul, 
Rochester  &  Dubuque  Electric  Traction  Com- 
pany, herein  referred  to  as  the  "Coaipany," 
instituted  proceedings  In  the  district  court 
of  the  county  of  Dakota  to  secure  a  right  of 
way  for  its  proposed  railway  over  certain 
lands  in  that  county,  including  the  farm  of 
the  respondent  Commissioners  were  ap- 
pointed, who  awarded  the  respondent  $1,000 
damages  for  the  taking  of  his  land,  and  the 
company  appealed  to  the  district  court  of 
the  county  of  Dakota.  The  Jury  in  the  dis- 
trict court  awarded  the  respondent  $1,200 
damages,  and  the  company  appealed  from  an 
order  denying  its  motion  for  a  new  trial. 

The  trial  court  Instructed  the  Jury  that: 


"Now,  the  rule  of  damages  in  this  case  is 

this:  It  is  not  as  has  been  sometimes  stat- 
ed, what  would  be  the  difference  in  value  of 
the  farm,  tract  of  land,  taken  as  a  whole — 
and  this  must  be  considered  as  a  whole.  It 
is  not  merely  the  amount  of  land  that  Is  tak- 
en. It  Is  the  damage  to  the  whole  80  acres, 
taken  as  a  whole,  and  it  is  not  what  would 
be  the  difference  between  the  value  of  the 
land,  the  whole  tract  of  land,  with  the  rail- 
road on  It  and  what  would  be  its  value  with 
the  raUroad  off  of  It  That  Is  not  the  rule, 
because  that  is  charging  up  to  the  landowner 
those  general  benefits.  Those  must  not  be 
charged  up  against  him.  But  the  more  ac- 
curate rule  is  what  would  be  the  value  of 
the  land  without  the  railroad  upon  it  if  the 
railroad  was  built  near  it  and  not  upon  it — 
that  would  give  the  landowner  the  benefit  of 
that  general  rise — and  what  would  be  the 
value  of  the  land  with  the  railroad  upon  U. 
That  gives  him  bis  damages  and  allows  him 
the  benefit  of  the  general  benefit."  This  is, 
in  effect,  an  instruction  that  the  measure  of 
the  respondent's  damages  was  the  difference 
in  value  of  his  land  with  the  railroad  near 
but  not  on  It  and  its  value  with  the  railroad 
upon  it  The  giving  of  this  instruction  is  as- 
signed as  error. 

The  rule  for  measuring  the  damages  of 
the  landowner  In  condemnation  proceedings 
by  a  railroad  company  is  settled  by  the  deci- 
sions of  this  court  to  the  effect'  following: 
The  landowner  is  entitled  to  the  difTerence 
between  the  market  value  of  his  land  at  the 
time  the  damages  are  assessed,  without  any 
deduction  or  offset  on  account  of  any  in- 
crease in  its  market  value  in  common  with 
other  lands  in  the  vicinity,  due  to  the  con- 
struction or  proposed  construction  of  the 
railroad  through  that  locality,  or  other  gen- 
eral benefits,  and  the  market  Talue  of  his 
land  with  the  railroad  constructed  and  op- 
erated over  it  Winona  &  St  Peter  By.  Co. 
V.  Denman,  10  Minn.  267  (Gil.  208) ;  Winona 
&  St  Peter  Ry.  Co.  v.  Waldron,  11  Minn. 
515  (Gil.  392)  83  Am.  Dec.  100;  Weir  v.  Rail- 
way Co.,  18  Minn.  155  (Gil.  139);  Sherwood 
V.  Railway  Co.,  21  Minn.  122;  Union  Depot, 
Str.  Ry.  &  Tr.  Co.  of  Stillwater  v.  Bruns- 
wick, 31  Minn.  297,  17  N.  W.  626,  47  Am. 
Rep.  789;  Sigafoos  v.  Railway  Co.,  39  Minn. 
8.  38  N.  W.  627;  Mantorville  Ry.  Co.  v.  Silu- 
gerland,  101  Minn.  488,  112  N.  W.  1033,  11 
L.  R.  A.  (N.  S.)  277, 118  Am.  St  Rep.  647.  It 
is  obvious  that  the  Instruction  of  the  trial 
court  complained  of  was  not  in  accordance 
with  this  rule,  and  was  reversible  error ;  for 
the  rule  given  as  the  accurate  one  was  that 
the  landowner  was  entitled  to  the  difference 
between  the  value  of  the  land  without  the 
railroad  upon  it,  but  built  near  it  and  its 
value  with  the  railroad  built  upon  it.  CarIi 
V.  Railway  Co.,  16  Minn.  260  (GU.  234) ;  Mor- 
in v.  Railway  Co.,  30  Minn.  100,  14  N.  W. 
460. 


•For  otber  case*  lec  same  topic  and  lactlon  NUMBER  to  Deo.  *  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by 


Google 


Minn.)'    MINNEAPOLIS,  ST.  P.,  E.  &  D.  ELECTRIC  T.  00.  v.  FBIENDSHUH.  ^Sl 


In  the  first  case  cited  the  inatnictlon  was 
as  follows:  "The  Jury  must  estimate  the 
value  of  the  land  taken  upon  the  hypothesis 
that  the  railroad  is  located  near  and  not  up- 
on the  property."  This  court  held  that  it 
was  error  to  give  the  instruction.  In  the 
last  case  cited  it  was  held  erroneous  to  in- 
struct the  jury  "to  consider  what  the  value 
of  the  farm  would  be  if  the  railroad  was  not 
on  it,  but  if  the  railroad  were  in  the  imme- 
diate neighborhood,"  for  the  reason  that  "it 
left  to  them  an  uncertain  standard  as  to  the 
location  and  effect  of  the  road  as  respects 
the  particular  tract,  inasmuch  as  In  some 
cases  the  proximity  of  a  railroad  might  es- 
pecially enhance  the  value  of  the  land,  and 
in  others  it  might,  on  the  contrary,  affect  it 
injuriously ;  so  that,  if  the  jury  were  permit- 
ted to  consider  this  question  in  cases  favor- 
able to  the  landowner,  they  would  also  be 
obliged  to  BO  consider  it  in  cases  prejudicial 
to  lilm.  But  In  ascertaining  the  value  of  the 
land  without  the  road,  the  plaintiff  was  en- 
titled to  show  its  fair  market  value  at  the 
time  sworn  to.  In  so  far,  then,  as  Its  gen- 
eral market  value  had  been  enhanced  by  the 
establishment,  construction,  and  operation  of 
this  railroad  line,  it  would  necessarily  and 
naturally  be  included  in  the  estimate  of  such 
value  by  the  witnesses."  We  can  add  noth- 
ing to  the  force  of  this  reasoning. 

Order  reversed,  and  new  trial  granted. 


MINNEAPOLIS.  ST.  P..  n.  &  D.  ELECTRIC 
TRACTION  CO.  v.  FORSTROM  et  al. 

(Sopretne  Court  of  Minnesota.    July  23,  1909.) 

Appeal  from  District  Court,  Dakota  County; 
P.  M.  Crosby,  Judge. 

Condemnation  proceedinfrs  by  the  Minneapolis, 
St.  Paul,  Rochester  &  Dubuque  Electric  Trac- 
tion Company  against  Betsey  E.  Forstrom  and 
others.  From  an  order  denyinf;  its  motion  for 
a  new  trial,  the  traction  company  appeals.  Re- 
versed. 

M.  H.  Bontelle  and  R.  T.  Boardman,  for  ap- 
pellant.   Hodgson  &  Lowell,  for  resi)ondents. 

PER  CURIAM.  Appeal  by  the  traction  com- 
pany from  an  order  of  the  district  court  of 
the  county  of  Dakota  denying  its  motion  for  a 
new  trial  in  proceedings  to  acquire  a  right  of 
way  over  the  respondents'  farm.  The  only  ques- 
tion submitted  to  the  jury  related  to  tho  amount 
of  damagps  to  be  awaxded  to  the  respondents 
for  the  taking  of  their  land. 

The  trial  court  gave  to  the  jury  this  in- 
stmction:  "Now,  you  will  determine  at  the 
time  the  railroad  took  possession  what  would  be 
the  value  of  the  160  acres  of  land,  taken  as  a 
whole,  without  the  railroad  upon  it,  but  with 
the  railroad  near  it  That,  you  see,  will  give 
the  landowner  the  benefit  of  these  general  ben- 
efits which  he  is  entitled  to  with  his  neighbors 
there  who  didn't  have  the  railroad  nmning 
arross  their  farm.  Determine  that  question. 
Then  determine  the  question  of  what  is  the 
value  of  the  <arm  with  the  railroad  upon  it. 
The  difference  between  those  two  sums  is  the 
true  measnre  of  damages  in  cases  of  this  kind." 

The  giving  of  this  instmction  is  assigned  as 


error.    It  was  MinneaiwUi,  St.  Paul,  Rochester 
&  Dubuque   Electric  Traction  Co.  v.   Harkins 
(opinion  filed  herewith)  122  N.  W.  4.T0. 
Order  reversed,  and  a  new  trial  granted. 


MINNEAPOLIS,  ST.  P.,  R.  &  D.  ELECTRIC 
TRACTION  CO.  v.  FRIENDSHUH  et  al. 

(Supreme  Court  of  Minnesota.    July  23,  1909.) 

1.  Eminent  Douain  (g  134*)— Compensation 
— PEctn-iAB  Value  of  Land. 

In  proceedings  under  chapter  41  (sections 
2520-2642)  Rev.  Laws  1905,  if  the  land  witli- 
oot  the  proposed  railroad  is  enhanced  in  valiu- 
by  reason  of  its  peculiar  location  or  availabil- 
ity, in  whole  or  in  part,  for  some  particular 
purpose,  the  Impairment  of  such  value  by  the 
construction  of  the  railroad  is  a  proper  element 
of  damages. 

[Ed.  Note. — ^For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  |  356;    Dec.  Dig.  {  184.*] 

2.  EuiNENT  Domain  (J  134*)— Compensation 
—Elements  op  Damage. 

Held,  the  existence  of  a  site  for  a  basement 
bam  within  the  right  of  way,  and  the  fact  that 
the  farm  was  naturally  adapted  for  truck  gar- 
dening, and  was  most  available  and  VE^uabie  if 
divided  into  small  truck  farms  fronting  on  the 
highway,  was  all  properly  received  in  evidet;ce 
as  bearing  upon  the  question  of  damages,  and. 
as  limited  by  the  trial  court,  the  evidence  was 
not  speculative. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  (  356;   Dec.  Dig.  §  134.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Hennepin 
County;    Horace  D.  Dickinson,  Judge. 

Condemnation  proceedings  under  Rev. 
Laws  1905.  C.  41  (sections  2520-2542),  by  the 
Minneapolis,  St.  Paul,  Rochester  &  Dubuque 
Electric  Traction  Company  against  Joseph 
Friendshuh  and  others.  From  the  judgment 
for  the  landowners,  the  traction  company 
appeals.    AfiSrmed. 

M.  H.  Boutelle  and  R.  T.  Boardman,  for 
appellant.    Hall  &  KolUner,  for  respondents. 


LpWIS,  J.  This  Is  a  proceeding  under 
chapter  41  (sections  2520-2542)  Rev.  Laws 
1905,  by  appellant  company,  to  condemn  a 
right  of  way  over  respondents'  premises. 
The  property  consisted  of  80  acres  facing  on 
Lyndale  avenue,  about  4%  miles  from  the 
city  of  Mlnneai)olls.  Appellant's  proposed 
railroad  across  the  southeast  comer  cut  oft 
3^i  acres  from  the  rest  of  the  farm. 

The  question  of  damages  being  under  con- 
sideration In  the  district  court,  respondents 
were  permitted  to  show,  over  appellant's  ob- 
jection, that  the  only  available  building  site 
for  a  basement  bam  was  within  the  llmlt<; 
of  the  right  of  way,  and  that  It  was  the 
intention  of  respondents  to  construct  a  bam 
ou  that  site  in  the  Immediate  future;  that 
the  work  had  not  actually  been  commenced, 
but  that  they  had  consulted  with  carpenters, 
and  had  drawn  plans  and  made  estimates  of 
the  materials.    Respondents  were  also  per- 


•For  otbar  cases  tee  tame  topic  aod  lecUon  KUMBER  la  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


452 


122  NORTHWESTERN  REPORTER. 


(Minn, 


mltted  to  show  fhat  the  land  was  moat  de- 
sirable for  track  gardening;  that  20  to  40 
acres  was  as  large  a  track  garden  farm  as 
any  one  Individual  could  successfully  handle; 
and  the  proper  division  of  the  80  acres  Into 
tracts  for  truck  gardening  would  be  to  di- 
vide It  so  that  each  division  woald  front  on 
the  highway. 

The  owner  was  entitled  to  prove  for  what 
general  purposes  the  premises  were  best 
adapted,  and  the  availability  of  any  part  for 
any  particular  purpose.  If,  by  reason  of 
peculiar  location  or  condition,  the  land,  or 
any  part  of  it,  was  enhanced  in  value,  and 
such  value  was  Impaired  by  the  construc- 
tion of  the  road,  then  that  fact  had  a  direct 
bearing  on  the  question  of  damages.  This  is 
the  general  rule,  and,  as  limited  by  the  trial 
court,  the  evidence  referred  to  did  not  in- 
clude prejudicial  elements  of  speculation. 

These  are  the  only  questions  necessary  to 
refer  to,  and  the  order  appealed  from  is  af- 
firmed. 


MINNBAPOMS,  ST.  P.,  R.  ft  D.  ELECTRIC 

TRACTION  CO.  v.  ST.  BJARTIN  et  al. 
(Supreme  Court  of  Minnesota.    July  23,  1909.) 

Eminent  Douair  ((  238*)— Compewbation— 

Absesskent  bt  ComnssioREBS— Appeai.. 
In  proceeding!  commenced  by  appellant 
company  for  the  purpose  of  condemning  a  right 
of  way  acrosB  respondent's  premises,  the  com- 
missioners provided  in  their  award  that  appel- 
lant should  construct  and  perpetually  maintain 
a  cattle  chute  of  certain  dimensions  under  the 
railroad,  and  in  addition  thereto  assessed  the 
damages  at  $350.  Respondents  appealed  to  the 
district  court  from  that  portion  of  the  award 
relating  to  damages  only,  and  recovered  a  ver- 
dict for  $1,025.  ,      ^ 

Held,  the  sufficiency  of  the  cattle  chute  was 
not  an  issue  on  the  trial  in  the  district  court, 
and  evidence  directed  to  that  question  was  inad- 
missible. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Dec.  Dig.  {  23&*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Hennepin 
County;  Andrew  Holt,  Judge. 

Condemnation  proceedings  by  the  Minne- 
apolis, St.  Paul,  Rochester  &  Dubuque  Elec- 
tric Traction  Company  against  Emanuel  S. 
St.  Martin  and  others.  The  landowners  ap- 
pealed to  the  district  court  from  the  commis- 
sioners' award,  and  from  the  Judgment  there 
rendered  the  traction  company  appeals.  Re- 
versed. 

M.  H.  Boutelle  and  R.  T.  Boardman,  for 
appellant    Hall  ft  Kolliner,  for  respondents. 

LEWIS,  J.  Proceedings  by  appellant  com- 
pany for  the  condemnation  of  laud  for  right 
of  way  purposes.  Commissioners  were  ap- 
pointed, and  they  made  a  report  with  re- 
spect to  respondents'  land,  consisting  of  90 
acres.    Ibe  proposed  line  of  railway  divided 


It  Into  nearly  two  equal  portlona,  and  tlie 
commissionos  appraised  the  damages  In  the 
sum  of  $350,  subject  to  the  following  condi- 
tions: "That  the  foregoing  awards  to  said 
above-named  persons  are  made  subject  to 
and  upon  the  following  specific  conditions, 
in  accordance  with  the  map  or  plat  of  said 
described  lands,  which  is  hereto  annexed  and 
herein  filed  as  a  part  of  its  report  namely, 
that  said  petitioner  shall  construct  and  per- 
petually maintain  a  good  and  suitable  farm 
crossing  over  its  right  of  way  at  the  point 
Indicated  on  its  said  map,  and  shall  also 
construct  and  maintain  over  and  across  its 
right  of  way  and  tracks  on  eadi  side  of  said 
crossing  suitable  and  proper  cattle  guards 
without  gates.  That  said  petitioner  shall 
construct  and  perpetnally  maintain  one  'un- 
dershot' cattle  pass  at  the  point  indicated  on 
said  map,  which  cattle  pass  shall  be  six  and 
one-half  (6%)  feet  high  and  four  (4)  feet 
wide,  with  drainage,  if  practicable.  That  It 
shall  also  construct  and  maintain  all  neces- 
sary ditches  and  culverts,  and  in  particular 
those  Indicated  on  said  piatt"  Respondents, 
the  owners,  appealed  to  the  district  court 
from  the  commissioners'  award,  in  part,  in 
the  following  language:  "That  the  ground 
of  respondents'  appeal  Is  that  said  award  is 
inadequate  and  InsufQcIent.  That  the  amount 
awarded  by  said  commissioners  ought  not  to 
have  been  less  than  the  sum  of  $1,561,  to- 
gether with  the  construction  and  perpetual 
maintenance  of  said  cattle  chute  and  grade 
crossing,  and  not  less  than  the  sum  of  $3,- 
000,  provided  that  the  respondents  are  not 
furnished  with  said  cattle  chute,  or  with  any 
grade  crossing,  and  said  respondents  do  here- 
by claim  the  amount  of  $3,0(X>  as  their  dam- 
ages, unless  by  the  judgment  of  said  court 
they  are  furnished  with  a  cattle  chute  and  a 
grade  crossing."  The  Jury  returned  a  ver- 
dict of  $1,025  damages,  and  appellant  raises 
the  question  in  this  court  that  error  was 
committed  at  the  trial  in  permitting  respond- 
ents to  prove  that  the  cattle  chute  provided 
by  the  commissioners  was  inadequate,  and 
that  the  jury  were  permitted  to  assess  dam- 
ages upon  that  ttasls. 

The  law  governing  this  subject  is  fonn'd  in 
chapter  41,  Rev.  Laws  1906.  Section  2527 
defines  the  duties  of  the  commissioners,  and 
among  other  things  pMvides  as  follows:  "In 
proper  cases  they  may  reserve  to  the  owner 
a  right  of  way  or  other  privilege  in  or  over 
the  land  taken,  or  attach  reasonable  condi- 
tions to  such  taking,  in  addition  to  the  dam- 
ages given,  or  they  may  make  an  alternative 
award,  conditioned  upon  the  granting  or 
withholding  of  the  right  specified."  Section 
2532,  with  reference  to  appeals,  provides: 
"At  any  time  within  thirty  days  after  service 
of  the  notice  that  the  report  has  been  filed, 
the  owner  of  lands  taken  may  appeal  to  aaid 
district  court  from  any  award  of  damages 


*For  «tli«r  cases  se«  lam*  topic  and  ■•ctlon  NUUBBR  la  Dec.  *  Am.  Digs.  1M7  to  AkU,  *  Baportar  ladtzM 


Digitized  by  VjOOQ  l€ 


litlUi.) 


BARNUM  V.  JEFFERSON. 


453 


«mbraced  In  eald  report,  or  from  any  omis- 
sion to  award  damages  to  the  appellant  for 
tbe  taking  of  lands  claimed  by  him,  by  filing 
with  the  derk  a  notice  of  such  appeal.  Said 
notice  shall  specify  tbe  particular  award,  or 
failure  to  award,  appealed  from,  the  nature 
and  amount  of  his  claim,  the  lands  to  which 
It  relates,  and  the  grounds  of  his  appeal. 
•    •    •» 

The  statute  authorizes  the  commissioners, 
Is  tbe  exercise  of  their  discretion,  to  make 
such  reservations  and  conditions,  and  to  es- 
timate the  damages  In  addition  thereto,  and 
It  is  clear  that  the  commissioners  fixed  the 
compensation  at  $350  subject  to  the  condi- 
tion and  requirement  that  the  petitioner 
slrauld  construct  and  perpetually  maintain  a 
cattle  chute  of  the  dimensions  specified.  The 
commissioners  might  have  assessed  the  en- 
tire damage  without  any  reservation,  leaving 
the  question  of  crossings  and  passageways 
to  be  settled  under  section  2001  of  the  stat- 
ute, which  provides  that  the  owner  may  con- 
struct and  that  the  railway  company  shall 
maintain  the  same.  The  statute  expressly 
provides  the  two  methods  of  estimating 
damages,  one  with  and  the  other  without  res- 
ervations, and  the  notice  of  appeal  was  suf- 
ficient to  take  to  the  district  court  the  .single 
question  of  damages  with  reference  to  the 
reservations  and  conditions  as  provided  by 
the  commissioners. 

During  the  course  of  the  trial  respondents 
were  permitted,  over  tbe  objection  of  appel- 
lant, to  attack  the  sufficiency  of  the  cattle 
chute,  claiming  that  the  dimensions  were  in- 
adequate for  the  purpose  intended,  and  it 
was  not  of  the  width  usually  constructed  for 
such  purposes.  Respondents  were  at  liberty 
to  appeal  from  the  entire  findings  of  the  com- 
missioners, not  only  as  to  the  amount  of 
damages,  but  as  to  the  sufficiency  of  the  cat- 
tle chute;  but  they  accepted  the  finding  of 
the  commissioners  as  to  the  sufficiency  of 
tbe  chute.  The  appeal  having  been  limited 
to  the  single  question  of  damages,  appellant 
bad  a  right  to  assume  In  the  district  court 
that  the  sufficiency  of  the  chute  was  a  set- 
tled question,  and  not  open  to  dispute.  There 
is  no  authority  In  the  law  permitting  It,  and 
it  would  be  manifestly  unjust  to  allow  the 
landowners  to  notify  the  railway  company 
that  they  were  satisfied  with  the  cattle 
chute  provided  by  the  commissioners,  but 
would  contest  in  the  district  court  the 
amount  of  damages  awarded  with  reference 
to  the  chute  so  established,  and  then,  at  the 
trial,  attack  the  sufficiency  of  the  chute  for 
the  purpose  of  enhancing  the  damages.  For 
these  reasons  the  evidence  was  inadmissible 
under  any  issue  in  the  case,  placing  before 
tbe  Jury  a  wrong  basis  upon  which  to  esti- 
mate the  damages,  and  its  effect  was  preju- 
dlcIaL 

Reversed.    New  trial  granted. 


BARNUM  et  al.  v.   JEIFFERSON  «t  al 
(Snpreme  Court  of  Minnesota.    July  23,  1909.) 

1.  SUITICIENCY    or    EVIDKNCX. 

Action  to  charge  the  defendant  J.  as  the 
trustee  of  the  real  estate  described  in  the  com- 
plaint and  for  an  accounting.  The  court's  find- 
ing of  fact  and  conclusion  of  law  were  in  favor 
of  the  defendants. 

Held,  that  the  facts  found  were  sustained  by 
the  evidence,  and  that  they  sustain  tbe  conclu- 
sion of  law. 

(Syllabus  by  the  Court.) 

2.  Tbiai.  (J  404*)— Tbiai  bt  Coubp— Fimd- 
iKos  or  Fact. 

A  general  findine  that,  other  than  as  ex- 
pressly stated,  the  allegations  of  the  pleadings 
were  not  established  to  the  satisfaction  of  the 
court  and  were  found  to  be  not  true.  Is  equiva- 
lent to  a  special  finding  that  the  contract  al- 
leged was  never  made. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  (  960;  Dec.  Dig.  |  401*] 

3.  Appeal  and  Ebbob  (5   1010»)— Review— 
Questions  or  Fact— Findings  or  Cotjbt.' 

On  a  review  of  the  sufficiency  of  the  evi- 
dence to  support  the  trial  court's  findings,  the 
qnestion  is  whether  there  is  any  evidence  rea- 
sonably tending  to  sustain  them. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error.  Cent.  Dig.  (  3979;    Dec.  Dig.  f  1010.»] 

4.  Appeai.  and  Ebbob  (|  987*)— SarncixNCT 
or  Evidence— Findings  or  Tbiai.  Coubt. 

It  is  not  the  duty  of  an  appellate  court  to 
demonstrate  by  a  review  of  the  evidence  tbe  ab- 
solute correctness  of  the  trial  coort's  findings  of 
fact. 

[Eid.  Note.— For  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  (  987.*] 

Jaggard,  J.,  dissenting. 

Appeal  from  District  Court,  Ramsey  Coun- 
ty; Hascal  R.  Brill,  Judge. 

Action  by  Augustus  Elrby  Bamum  and  oth- 
ers against  Rufus  C.  Jefferson  and  others. 
Judgftent  for  defendants,  and  plaintilTs  ap- 
peal.   Affirmed. 

John  F.  Fitzpatrlck  snd  Fred  M.  Catlin, 
for  appellants.  John  B.  Stryker  and  P.  J. 
McLaughlin,  for  respondents. 

•  START,  C.  J.  Appeal  by  the  plaintiffs 
from  a  Judgment  of  the  district  court  of  the 
county  of  Ramsey  against  them  and  In  favor 
of  the  defendants  In  an  action  to  charge 
the  defendant  Jefl'erson  as  trustee  of  the 
real  estate  described  in  the  complaint,  and. 
for  an  accounting.  Tbe  here  material  al- 
legations of  the  complaint,  briefiy  stated, 
are  to  the  effect  that  In  August,  1899,  the 
plaintiff  Bamum  and  the  defendant  Jeffer- 
son entered  Into  a  contract  whereby  It  was 
mutually  agreed  that  Jefferson  should  ad- 
vance all  money,  not  exceeding  $20,000, 
which  might  be  required  to  pay  and  dis- 
charge all  mortgage.  Judgment,  and  tax. 
liens  on  tbe  land  in  question.  In  which  the,- 
plaintiffs  then  bad  an  Interest,  subject  to 
such  liens ;  that  tbe  legal  title  thereto  should 
be  vested  In  Jefferson  to  secure  Mm  for 
such  advances,  the  land  to  be  reconveyed 
to    the   plaintiffs,    respectively,    when    such 


•ror  otbar  caaes  se*  nme  tople  and  lecUon  NUMBSB  In  Dec.  &  Am.  Digs.  1907  to  daU,  &  Reporter  IsdexM 


Digitized  by  VjOOQ  l€v 


454 


122  NOKTHWESTEBN  HBPOETER. 


(Minn. 


advances  were  paid  In  full;  and,  further, 
fhat  the  legal  title  to  the  land  was  so  vest- 
ed In  Jefferson,  and  that  be  has  received 
from  the  proceeds  of  the  sale  of  a  portion 
thereof  more  than  enough  to  repay  him  in 
fiUl.  The  answer  denied  the  making  of  the 
alleged  contract,  and  averred  that  the  de- 
tendants  were  and  bad  been  the  owners  in 
fee  of  the  real  estate  described  In  the  com- 
plaint ever  since  October  2,  1901,  and  in 
tbe  open  possession  thereof,  claiming  to  be 
the  absolute  owners  thereof  to  the  knowl- 
edge of  tbe  plaintiffs,  who  never,  until  tbe 
commencement  of  this  action  (April  9,  1908), 
claimed  that  they  or  either  of  them  had  any 
interest  therein.  The  trial  court  found  that 
tbe  alleged  contract  was  never  made;  that 
the  defendants  became  the  owners  of  tbe 
land  In  1901,  and  bave  ever  since  l>een  tbe 
absolute  owners  in  fee  simple  tbereof ;  that 
neither  of  tbe  plaintiffs  has  any  right  or  title 
thereto;  and,  further,  that  tbe  defendants 
have,  since  tbey  so  acquired  tbe  land,  been 
In  tbe  actual  possession  and  control,  to  tbe 
knowledge  of  tbe  plaintiffs,  neither  of  whom, 
since  1901,  until  shortly  before  tbe  com- 
mencement of  this  action,  made  any  claim 
or  demand  upon  tbe  defendants  in  respect 
thereto. 

The  only  question  raised  by  the  assign- 
ments of  error  Is  whether  tbe  findings  of 
fact  stated  are  supported  by  the  evidence. 
The  trial  court  found  that,  other  than  ex- 
pressly stated,  "the  allegations  of  tbe  plead- 
ings are  not  established  to  tbe  satisfaction 
of  .the  court  and  are  found  to  be  not  true." 
Counsel  for  plaintiff  suggests  that:  "Upon 
such  a  finding,  none  of  the  collateral  facts 
and  circumstances  can  be  presumed,  one 
way  or  the  other,  and  the  matter  comes  be- 
fore this  court  practically  as  a  suit  In  equi- 
ty upon  original  jurisdiction."  There  was 
no  special  finding  that  tbe  alleged  contract 
was  or  was  not  made,  but  tbe  general  find- 
ing we  have  quoted  Is  the  equivalent  of  a 
special  finding  that  the  alleged  contract  was 
never  made.  Fidelity  &  Casualty  Co.  v. 
Grays,  76  Minn.  450,  79  N.  W.  531.  This 
appeal,  then,  is  to  be  considered  and  de- 
termined in  this  court  as  other  appeals  are 
which  Involve  only  questions  of  fact. 

Tbe  question  is  whether  there  was  any 
evidence  reasonably  tending  to  support  the 
findings  of  tbe  trial  court  Tbe  evidence 
is  voluminous,  consisting  of  more  than  550 
pages  of  tbe  printed  record,  and  this  is  a 
proper  case  for  the  application  of  the  rule 
that  it  is  not  the  duty  of  an  appellate  court 
to  demonstrate  by  a  review  of  the  evi- 
dence the  correctness  of  tbe  findings  of  fact 
by  the  trial  court.  Carver  v.  Bagley,  79 
Minn.  114,  81  N.  W.  757.  We  bave,  however, 
given  to  tbe  evidence  mature  consideration, 
aided  by  tbe  careful  and  comprehensive 
Ijriefs  of  re^ective  counsel,  and  have  reacb- 
«-<l  tbe  conclusion  that  tbe  findings  of  fact 


of  the  trial  court  are  fairly  sustained  by  the 
evidence  within  tbe  rule  applicable  to  cases 
of  this  kind.  We  accordingly  hold  that  tbe 
findings  are  sustained  by  the  evidence  and 
that  they  support  the  conclusions  of  law  of 
the  trial  court  and  tbe  Judgment. 
Judgment  affirmed. 

JAGOARD,  J.  I  respectfully  dissent 
Tbe  pleadings,  the  testimony  of  defendant 
Rufns  C.  Jefferson,  and  tbe  admitted  facts 
appear  to  me  to  necessitate  reversal. 


ENGLUND  V.  MINNEAPOLIS,  ST.  P.  *  S. 
S.  M.  RY.  CO. 

(Supreme  Court  of  Minnesota.     July  9,  1909.) 

Master  and  Sebvant  ((  217*)  —  Injubt  to 
Servant— Assumption  op  Risk— Knowl- 
edge OF  Defeot  and  Danoeb. 

Plaintiff,  as  defendant's  foreman,  was  en- 
gaged in  turning  a  crank  attached  to  a  small 
cog  wheel,  whereby  a  larger  cog  wheel  wound 
round  a  drum  tbe  wire  by  which  steel  buckets, 
fastened  to  it  and  suspended  by  It  from  a  der- 
rick on  a  pivot,  were  raised  or  lowered  from  one 
floor  to  another  of  defendant's  coal  shed.  Metal 
rods  near  tbe  bottom  of  tbe  bucket,  a  part'of 
a  device  for  discharging  coal  by  allowing  the 
bottom  to  drop  down,  projected  beyond  the  sur- 
face of  the  bucket  One  of  these  rods  caught 
in  a  hole  in  the  floor  of  the  second  story.  The 
rrank  in  plaintiff's  hand  reversed  suddenly,  and 
inflicted  the  injury  for  which  recovery  is  sought 
Plaintiff,  in  charge  of  the  coal  bouse,  bad  ac- 
tual knowledge  ot  all  physical  conditions.  It 
Is  held  that  he  assumed  the  risk. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant  Cent  Dig.  H  674-600;  Dec.  Dig.  S 
217.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Becker  Coun- 
ty;  M.  D.  Taylor,  Judge. 

Action  by  Edward  Englund  against  the 
Minneapolis,  St.  Paul  &  Sault  Ste.  Marie 
Railway  Company.  Verdict  for  plaintiff. 
From  an  ordet  denying  motion  for  judgment 
notwithstanding  the  verdict  or  for  a  new 
trial,  defendant  appeals.    Reversed. 

C.  J.  Gunderson,  C.  M.  Johnston,  and  Al- 
fred H.  Bright  (John  L.  Erdall,  of  counsel), 
for  appellant    M.  J.  Daly,  for  respondent 

JAG6ARD,  J.  Plaintiff  and  respondent, 
as  foreman,  bad  charge  of  tbe  coal  bouse  of 
defendant  and  appellant  His  duty  was  to 
coal  engines.  A  derrick  raised  and  lowered 
large  steel  buckets  from  tbe  first  to  tbe  sec- 
ond fioor  of  that  house  by  means  of  an  iron 
cable  wound  round  a  drum  towards  tbe  foot 
of  tbe  derrick.  Tbe  bouse  was  20  by  30  feet 
In  size.  Tbe  drum  was  moved  by  a  large  cog 
wheel,  moved  by  a  small  cog  wheel,  which  in 
turn  was  moved  by  a  crank  operated  by 
plaintiff.  The  derrick  swung  on  a  pivot  at 
Its  base,  so  that  a  bucket  when  raised,  could 
be  placed  on  the  second  fioor  at  any  point 
beyond  the  opening  in  the  second  floor 
through  which  the  derrick  was  constructed. 


•For  other  cases  see  earns  topic  and  sectloo  NUMBER  la  Dm.  *  Am.  Digs.  1M7  to  date,  *  Reporter  Indexes 


Digitized  by 


Google 


Minn.) 


BNQLUND  V.  MINNEAPOLIS,  ST.  P.  &  8.  8.  M.  RY.  CO, 


453 


Tbe  Iron  rods  at  the  bottom  of  the  bucket, 
which  allowed  the  coal  to  be  discharged,  pro- 
jected outside  and  beyond  the  surface  of  the 
bucket  to  the  extent  of  one  or  two  Inches. 
On  the  day  of  the  accident  plalntifC  was  turn- 
ing the  crank  to  bring  down  an  empty  bucket 
on  the  second  floor.  That  bucket  was  being 
dragged  over  the  floor  towards  the  opening 
In  It,  when  one  of  the  projecting  prongs  of 
the  Iron  rod  caught  In  a  bole  hi  the  floor. 
This  caused  the  drum  and  big  cog  wheel  to 
stop  suddenly,  to  shake  plaintitTs  hand  from 
the  handle  of  the  crank,  and  to  throw  it  onto 
the  large  cog  wheel.  The  revolving  crank 
struck  plaintitTs  finger  and  produced  the 
damages  here  sought  to  be  recovered.  De- 
fendant was  charged  with  negligence  in  three 
imrticulars,  namely:  (1)  In  allowing  this 
hole  or  crack  in  the  floor,  in  which  the  bucket 
(■aught,  to  remain  without  being  repaired  for 
a  long  time;  (2)  in  placing  the  crank  on  the 
derrick  dangerously  close  to  the  large  cog 
wheel;  and  (3)  In  failing  to  cover  the  cog 
wheels.  The  defendant  denied  negligence, 
and  insisted  that  plaintiff  assumed  the  risk. 
The  Jury  returned  a  verdict  for  plaintiff. 
This  appeal  was  taken  from  the  order  of  the 
trial  court  denying  the  usual  motion  in  the 
alternative. 

Upon  the  assumption  that  the  master  was 
negligent  in  the  performance  of  its  duty  to 
plaintUC,  the  question  arises  whether  plain- 
tiff was  precluded  from  recovery  of  damages 
because  he  assumed  the  risk.  It  is  evident 
from  the  statement  of  facts  that  the  proxi- 
mate cause  of  the  injury  was  the  fact  that 
the  projecting  rod  of  the  bucket  caught  and 
was  held  by  the  bole  in  the  floor.  The  near- 
ness of  the  crank  to  the  big  wheel  was  prop- 
erly a  condition  having  no  natural  ten- 
dmcy  in  Itself  to  produce  the  accident  This 
may  also  be  true  of  the  failure  to  guard  the 
machine,  the  breach  of  the  duty  of  the  master 
in  respect  to  which  Is  here  assumed;  but  it 
Is  also  to  be  borne  In  mind  that,  for  aught 
appearing  in  the  record,  plaintiff  would  have 
been  as  much  injured  by  having  his  finger 
hit  by  the  crank  If  it  had  been  resting  on  a 
guard  as  when  it  was  resting  on  the  wheel. 
It  Is  to  be  noted  that  plalntllTs  finger  was 
not  shown  to  have  been  caught  in  the  spaces 
between  the  protruding  cogs  of  the  big  and 
little  cog  wheels. 

Plaintiff,  44  years  of  age,  had  worked  In 
the  coal  shed  from  time  to  time  for  more 
than  a  year,  and  after  March  1,  1907,  had 
been  foreman  of  the  shed.  The  accident  oc- 
(■arred  August  2,  1907.  In  substantially  his 
own  words,  he  had  seen  the  hole  in  the  floor 
for  the  first  time  in  April  of  that  year.  He 
could  see  it  from  the  machine  where  he  stood. 
It  seemed  to  be  a  silver  or  something  pushed 
down  Just  between  the  cracks  in  the  boards. 
He  said  nothing  about  the  crack.  He  knew 
that  buckets,  in  being  hauled  over  the  floor 
would  wobble  and  swing  from  one  projection 
of  the  rod  to  the  other,  and  that  they  would 
bit   the    floor.    Plaintiff's   eyes    necessarily 


rested  on  the  crack  and  on  the  cog  wheel. 
The  proximity  of  the  crank  to  the  wheel  and 
the  absence  of  a  guard  on  the  wheel  were 
most  "readily  observable."  Plaintiff  had  act- 
ual knowledge  of  all  the  physical  facts  which 
were  the  necessary  cause  and  conditions  of 
the  accident  His  actual  knowledge  was 
equal  to  that  which  could  have  been  obtained 
by  or  was  attributable  to  the  master.  As  fore- 
man In  charge  of  the  place,  he  was,  indeed, 
the  very  person  best  in  a  position  to  have 
advised  the  master  of  the  defect  in  the  prem- 
ises or  to  have  remedied  It  himself.  An  in- 
spector could  have  told  the  master  no  fact  in 
connection  with  the  plant  or  Its  operation  of 
which  the  plaintiff  did  not  know.  The  condi- 
tion thus  presented,  it  is  true,  suggested  to 
him  no  danger.  But  if,  as  has  been  assumed. 
the  circumstances  should  have  caused  the 
master  apprehension  of  possible  harm,  so  as 
to  have  made  it  his  duty  to  repair  the  floor, 
why  should  not  the  plaintiff  also  have  realiz- 
ed the  danger?  It  does  not  appear  from  any 
testimony  in  the  record  that  the  master  had 
any  greater  experience,  any  greater  reason 
to  anticipate  harm  from  the  conditions  pre- 
sented, than  the  plaintiff.  While  It  is  ele- 
mentary that  the  servant  is  not  required  to 
look  for  danger.  It  is  also  well  settled  that, 
when  he  knows  all  the  conditions  from  which 
harm  to  him  would  naturally  flow,  knowledge 
and  appreciation  of  the  risk  are  not  neces- 
sarily, but  may  be  justly.  Imputed  to  him. 
Rase  V.  Railway  Co.  (Minn.)  120  N.  W.  360. 
It  was  obvious  that  the  projecting  rods  in  the 
bucket  were  likely  to  be  caught  as  the  bucket 
was  "wobbled"  along  the  floor  on  Its  bottom 
near  the  crack.  The  reversal  of  the  crank  In 
such  a  case  was  certain.  The  possibility  of 
harm  did  not  arise  from  any  latent  condi- 
tions. The  sources  of  danger  were  not  only 
readily  observable,  but  had  been  actually  ob- 
served, and  for  a  long  time.  No  more  com- 
plicated, abstruse  law  of  physics  was  involv- 
ed than  In  the  cracking  of  a  whip.  The  dan- 
ger was  not  obscure,  but  plain. 

The  (.use  at  bar  is  within  the  rule  laid 
down  by  Mr.  Justice  Moody  in  Butler  v.  Fra- 
zee,  211  U.  S.  459,  29  Sup.  Ct  136,  03  L.  Ed. 
281  (in  which  the  facts,  however,  bore  no  par- 
ticular resemblance  to  those  in  the  case  at 
bar),  namely:  "Where  the  elements  and  com- 
bination out  of  which  the  danger  arises  are 
visible,  it  cannot  always  be  said  that  the  dan- 
ger Itself  is  so  apparent  that  the  employe 
must  be  held,  as  a  matter  of  law,  to  under- 
stand, appreciate,  and  assume  the  risk  of  it. 
The  visible  conditions  may  have  been  of  re- 
cent origin,  and  the  danger  arising  from  them 
may  have  been  obscure.  In  such  cases,  and 
perhaps  others  that  could  be  stated,  the  ques- 
tion of  the  assumption  of  the  risk  is  plainly 
for  the  jury.  But  where  the  conditions  are 
constant  and  of  long  standing,  and  the  dan- 
ger is  one  that  Is  suggested  by  the  common 
knowledge  which  all  possess,  and  both  the 
conditions  and  the  dangers  are  obvious  to  the 
common  understanding,  and  the  employ^  is 


Digitized  by  VjOOQ  l€ 


466 


122  NORTHWESTERN  REPORTER. 


(lilxin. 


of  foil  age,  Intelligence,  and  adequate  experi- 
ence, and  all  these  elements  of  the  problem 
appear  without  contradiction  from  the  plain- 
tiff'B  own  evidence,  the  question  becomes  one 
of  law  for  the  decision  of  the  court  Upon 
such  a  state  of  tlie  eyldence  a  verdict  for  the 
plaintiir  cannot  be  sustained,  and  It  is  the 
duty  of  the  Judge  presiding  at  the  trial  to  in- 
struct the  jury  accordingly." 

It  follows  that  plaintiff  must  be  held  to 
have  assumed  the  risk  as  a  matter  of  law. 

Reversed,  and  Judgment  for  def aidant  or- 
dered accordingly. 


THOMAS  ▼.   WISCONSIN  CENT.  RT.   00. 
(Supreme  Court  of  Minnesota.    July  23,  1909.) 

1.  Masteb   and    Servant   ({    101*)  —  Safe 
Place  to  Wobk— Independent  Contbact- 

OB. 

Where  a  master  jplaces  upon  his  premises 
in  the  immediate  vicinity  where  his  servants  are 
engaged  at  work  an  independent  contractor  for 
a  specific  purpose,  still  retaining  the  general 
control  of  Uie  premises  and  continuing  the  con- 
duct of  bis  own  business,  his  legal  obligation 
to  provide  bis  servants  with  a  safe  place  in 
which  to  perform  their  duties  requires  of  him 
the  exercise  of  reasonable  care  to  protect  tbem 
from  the  negligence  of  the  independent  con- 
tractor. 

[E>1.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  if  135,  171-184,  192 ;  Dec. 
Dig.  {  101.*] 

2.  Masteb  and  Sebvant  (5  101*)— Dtrrr  of 
Masteb— Safe  Place  in  Which  to  Work. 

The  obligation  of  the  master  to  provide 
his  servants  a  safe  place  extends  to  the  portion 
of  his  premises  on  which  they  are  required  to 
work  and  such  other  places  tliereon  as  they  are 
expressly  or  impliedly  invited  and  permitted  to 
use. 

lEjd.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  |S  135,  171-184,  192 ;  Dec. 
Dig.  i   101.*] 

3.  Masteb  and   Sebvant  (5  88*)- Dutt  •  of 
Master— Noon  Houb. 

The  relation  of  master  and  servant,  in  so 
far  as  involves  the  obligation  of  the  master 
to  protect  bis  servant  while  rightfully  upon  his 
premises,  is  not  suspended  during  the  noon  hour, 
when  the  master  expects,  and  expressly  or  by 
fair  implication  invites,  the  servant  to  remain 
upon  the  premises  in  the  immediate  vicinity  of 
the  work. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  {  IBO;    Dec.  Dig.  !  88.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  St.  Louis 
County;   Homer  B.  Dibell,  Judge. 

Action  by  Harry  Thomas  against  the  Wis- 
consin Central  Railway  Company,  Plaintiff 
had  a  verdict,  and  the  trial  court  granted  a 
new  trial,  but  denied  that  part  of  the  mo- 
tion demanding  a  final  Judgment  for  defend- 
ant, and  defendant  appeals.    Affirmed. 

Orasweller  &  Crasweller,  for  appellant 
Samuel  A.  Anderson  and  Warner  E.  Whipple, 
for  respondent 

BROWN,  J.  Action  to  recover  for  person- 
al injuries,  in  which  plaintiff  had  a  verdict. 


and  defendant  appealed  from  an  order  deny- 
ing its  alternative  motion  fov  Judgment  not- 
withstanding the  verdict  or  a  new  trial.  The 
trial  court  granted  a  new  trial,  but  denied 
that  part  of  the  motion  demanding  a  final 
Judgment  for  defendant.  The  only  question 
presented  on  this  appeal  is,  therefore,  wheth- 
er in  any  view  of  the  evidence  plaintiff  has  a 
cause  of  action  against  defendant 

The  facts  are  as  foUows:  Defendant  Is  a 
railroad  corporation,  organized  under  the 
laws  of  the  state  of  Wisconsin,  and  as  such 
operates  a  line  of  railroad  from  Chicago, 
through  Wisconsin,  to  Duluth  and  other 
points  In  this  state.  At  the  time  of  the  ac- 
cident here  complained  of  it  was  engaged  in 
constructing  certain  shops  and  yards  at 
South  Superior,  in  the  state  of  Wisconsin. 
The  buildings  were  located  near  the  railway- 
tracks,  and  were  being  constructed  by  a  firm 
of  independent  contractors,  who  employed  in 
and  about  the  work  some  60  or  more  men. 
Defendant  in  its  own  l>ehalf  was  engaged  in 
the  same  locality  in  grading  and  excavating 
for  its  roadbed,  and  also  employed  about  50 
men.  One  Roberts  was  engaged  as  an  Inde- 
pendent contractor  in  sinking  a  well  within 
one  of  the  buildings,  and  employed  in  his 
work  an  old  engine  and  boiler,  which,  as 
will  presently  be  mentioned,  exploded,  kill- 
ing several  of  defendant's  employes.  Plain- 
tiff, with  other  of  defendant's  servants,  was 
engaged  In  excavating  a  roadway  immediate- 
ly adjacent  to  the  building  in  which  the  well 
was  located,  on  the  east  side  thereof,  and  by 
means  of  wheelbarrows  conveyed  the  exca- 
vated material  to  a  point  northwest  from 
the  building  a  distance  of  about  75  feet.  The 
boiler  used  by  Roberts  in  sinking  the  well 
was  located  on  the  west  side  of  this  building 
and  was  under  his  exclusive  control;  at 
least,  the  evidence  does  not  show  that  de- 
fendant exercised  any  supervision  in  respect 
to  its  operation.  However,  defendant  had 
not  surrendered  control  of  its  premises  to 
Roberts,  or  the  other  contractors  engaged  In 
the  construction  of  the  buildings,  but  re- 
mained in  possession  thereof,  and  with  its 
employes  ^as  engaged  In  the  track  work 
heretofore  mentioned.  Roberts  was  upon  the 
premises  solely  for  the  purposes  of  the  work 
intrusted  to  him.  The  railroad  employes 
were  under  the  control  of  a  general  foreman 
in  charge  of  the  track  work,  and  were  sub- 
ject to  his  orders  and  directions.  The  men 
were  given  bnt  a  half  hour  for  a  midday  In- 
termission, and  were  expected  to,  and  did, 
take  their  luncheon  with  them  and  eat  it  up- 
on the  premises  in  the  Immediate  vicinity  of 
their  worlc  The  ground  upon  which  the 
work  was  being  carried  forward  was 
swampy  or  marshy,  and  at  the  noon  hour 
the  employes  found  a  convenient  dry  knoll 
or  spot  of  ground  upon  which  to  kindle  a 
small  fire  for  the  purpose  of  heating  their 


•For  other  cases  see  same  topic  and  section  NUMBER  in  Dec.  &  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by 


Google 


Mian.) 


THOMAS  V.  WISCONSIN  CENT.  BY.  CO. 


457 


coffee,  and  upon  -which  to  rest  while  partak- 
ing of  their  Innch.  Though  the  foreman  tes- 
tified that  a  railroad  car  had  been  provided 
for  this  purpose,  he  also  testified  that  it  was 
not  used  by  all  the  men,  who,  with  his  knowl> 
edge,  were  in  the  habit  of  going  upon  the 
premises  wherever  a  dry  place  could  be 
found,  Instead  of  going,  to  the  car.  Plaintiff 
testified  that  he  knew  nothing  about  the  car, 
and  was  not  Informed  that  it  had  been  fur- 
nished for  the  convenience  of  the  men.  Rob- 
erts' boiler,  used  in  the  well-digging  opera- 
tions, was  located  upon  the  only  dry  spot  of 
ground  to  the  west  of  the  building,  and  on 
the  day  of  the  injury  to  plaintiff  he  and  oth- 
er employes  of  defendant  repaired  to  that 
place  for  lunch.  Before  they  had  finished, 
the  boiler  exploded,  killing  several  of  the 
men,  and  severely  Injuring  plaintiff. 

Plaintiff's  theory  of  the  action  at  the  trial 
was  that  defendant  was  under  legal  obliga- 
tions to  provide  its  employes,  Including  plain- 
tiff, with  a  reasonably  safe  place  in  which  to 
do  their  work,  and  to  protect  them  from 
dangers  unknown  to  them  while  rightly  upon 
its  premises,  and  that  it  failed  In  the  pei^- 
formance  of  this  duty,  and  is  liable  for  all 
Injuries  sustained  in  consequence  of  its  fail- 
ure. The  trial  court  sent  the  case  to  the  Jury 
upon  this  theory,  and  they  found  generally 
in  plaintiff's  favor.  It  is  contended  by  de- 
fendant (1)  that  the  evidence  conclusively 
shows  that  Roberts,  the  well  digger,  was  an 
independent  contractor,  over-  whom  It  had 
no  control,  either  respecting  the  manner  of 
doing  his  work  or  the  instrumentalities  used; 
and  (2)  that  plaintiff,  in  going  upon  the  spot 
of  ground  where  the  boiler  was  located,  did 
so  for  his  own  convenience,  without  any  ex- 
press or  implied  invitation  from  defendant, 
and  was  not  then  a  servant  of  defendant,  but 
a  mere  licensee,  and  that  defendant  owed 
him  no  active  vigilance  for  his  protection. 

1.  We  are  unable  to  sustain  either  of  these 
contentions.  Defendant  was  under  legal  ob- 
ligation to  provide  plaintiff,  its  servant,  a 
reasonably  safe  place  in  which  to  do  his 
work,  or,  as  more  accurately  expressed,  to 
exercise  reasonable  care  to  so  provide.  This 
necessarily  Included  protection  from  unknown 
danger  while  ri^tfully  upon  defendant's 
premises,  and  such  as  reasonable  prudence 
on  defendant's  part  would  have  guarded 
against  It  could  not  avoid  the  performance 
of  that  duty  by  delegating  it  to  others,  nor 
shield  itself  by  sending  upon  its  premises, 
still  under  Its  general  control,  and  where  its 
servants  were  employed,  an  independent  con- 
tractor, with  authority  to  set  up  and  operate 
In  the  vicinity  of  Its  own  worlunen  dangerous 
instrumentalltlee.  In  such  case  the  per- 
formance of  the  master's  obligations  to  his 
servants  requires  that  he  exercise  reasonable 
care  In  reference  to  the  work  of  the  Inde- 
pendent contractor,  to  the  end  that  the  place 
provided  for  his  own  servants  may  not  be- 
come unsafe  or  dangerous.    Akin  v.  Mining 


Co.,  103  Minn.  204,  114  N.  W.  654,  887;  Ald- 
rltt  V.  OUlette-Herzog  Co.,  85  Minn.  206,  i8S 
N.  W.  741;  Rait  v.  New  England  Furniture 
Co.,  €6  Minn.  76,  68  N.  W.  729;  Klages  v. 
OUlette-Herzog  Co.,  86  Minn.  458,  00  N.  W. 
1116;  Toomey  v.  Donovan,  158  Mass.  232,  33 
N.  E.  396.  As  remarked  by  the  court  In 
The  Magdaline  (D.  C.)  91  Fed.  798:  "A  mas- 
ter may  not  place  his  servant  at  work  made 
dangerous  by  the  work  of  other  servants,  or 
persons  performing  work  under  contract, 
without  an  effort  to  furnish  adequate  pro- 
tection, and,  when  Injury  arises,  escape  upon 
the  plea  that,  but  for  the  negligence  of  a  co- 
servant  or  third  person  employed  on  the 
premises,  the  injury  would  not  have  happen- 
ed. A  servant  may  expect  thtCt  his  master 
win  not  surround  him  with  dangerous  agen- 
cies, whether  they  are  in  charge  of  the  mas- 
ter's servants  or  of  an  independent"  contract- 
or." See,  also,  Bums  v.  Railway  Co.,  129 
Mo.  41,  31'S.  W.  347;  Sackevritz  v.  Am.  Mfg. 
Co.,  78  Mo.  App.  144;  Woodman  v.  Railway 
Co.,  149  Mass.  335,  21  N.  E.  482)  4  L.  R.  A. 
218,  14  Am.  St.  Rep.  427.  The  duty  to  pro- 
vide a  safe  place  to  work  is  absolute,  non- 
delegable, and  it  is  clear  that  in  a  case  like 
that  at  bar  the  master  cannot  shield  himself 
by  the  plea  that  the  place  provided  by  him 
was  made  dangerous  and  unsafe  by  his  In- 
dependent contractor.  In  a  situation  like 
the  present,  installing  an  Independent  con- 
tractor for  a  certain  specific  purpose,  to  be 
performed  in  and  about  the  place  provided 
for  his  own  servants,  still  retaining  the  gen- 
eral control  over  his  premises,  the  master 
must  either  suspend  his  own  work  or  take 
active  measures  to  protect  his  servants  from 
the  negligence  of  the  Independent  contractor. 
In  no  other  way  can  he  perform  his  duty  to 
his  own  servants  respecting  the  obligation 
to  furnish  them  a  reasonably  safe  place  to 
work.  The  authorities  may  be  somewhat 
confilctlng  upon  this  proposition;  but  the 
views  expressed  are,  it  seems  to  us,  sustain- 
ed by  the  plainest  principles  of  the  law  of 
master  and  servant. 

It  is  further  urged  In  this  connection  that 
there  is  no  evidence  that  defendant  knew  or 
had  reason  to  believe  that  the  contractor's 
boiler  was  unsafe  or  defective.  But  this 
clearly  is  no  answer  to  the  charge  of  neglect 
of  duty.  Had  this  particular  boiler  been 
operated  by  defendant,  its  obligation  to  plain- 
tiff would  have  required  an  Inspection  there- 
of and  an  exercise  of  reasonable  care  to  keep 
It  in  condition  suitable  for  its  work.  4 
Thompson's  Negligence,  3296.  Though  the 
boiler  was  not  an  instrumentality  furnished 
by  defendant  for  use  by  its  employes,  it  per- 
mitted It  to  be  placed  upon  its  premises, 
where  its  servants  were  at  work,  thus,  In  its 
defective  condition,  rendering  the  place  of 
work  unsafe,  and  the  duty  of  inspection  ex- 
isted. The  evidence  shows  that  the  boiler 
was  old  and  out  of  repair,  extremely  danger- 
ous to  the  life  and  limbs  of  those  working  in 


Digitized  by 


Google 


458 


122  NORTHWESTERN  REJ>ORTER 


(Aflnn. 


Its  vicinity,  and  tbat  a  casual  Inspection 
thereof  would  have  disclosed  this  condition 
to  defendant  There  is  no  claim  that  defend- 
ant ever  attempted  to  Inspect  It,  or  otherwise 
protect  its  servants  froip  danger  of  Injury 
from  that  source.  The  evidence  made  this 
u  question  for  the  Jury. 

2.  But  It  Is  further  claimed  tbat  plaintiff 
was  not  at-  the  place  provided  for  the  per- 
formance of  his  work,  but,  on  the  contrary, 
was  at  the  boiler  for  bis  own  convenience; 
tbat  be  was  not  a  servant  of  defendant  at 
the  time,  but  a  mere  licensee,  and  entitled 
to  no  protection  as  a  servant.  A  large  num- 
ber of  cases  are  cited  in  support  of  this  con- 
tention, and,  If  sound,  it  disposes  of  the  case 
adversely  to  "plaintiff's  right  of  action.  The 
position,  however,  does  not  meet  with  our 
view  of  the  law.  The  authorities  are  hope- 
lessly at  variance  upon  this  point,  though, 
as  we  believe,  the  weight  of  reason  is  oppos- 
ed to  the  view  of  defendant.  The  authorities 
are  collected  In  a  note  to  Taylor  v.-  Bush  & 
Sons,  12  L.  R.  A.  (N.  S.)  853.  In  the  case  at 
bar  It  appears  that  defendant's  employes 
were  given  a  half  hour  for  the  noon  rest ; 
tbat  each  employ^  brought  bis  luncheon  with 
him  and  ate  It  upon  defendant's  premises  in 
the  vicinity  of  the  work;  that  the  men  were 
expected  to  remain  upon  the  premises,  and 
did  so  remain  with  the  knowledge,  consent, 
and  upon  the  implied  invitation  of  defendant, 
picking  out  such  dry  places  upon  the  prem- 
ises as  could  be  found,  lighting  a  small  fire, 
beating  their  coffee,  and  partaking  of  their 
lunch.  These  facts  appear,  not  only  from 
the  testimony  of  plaintitTs  witnesses,  but 
also  from  the  testimony  of  defendant's  fore- 
man In  charge  of  tbls  particular  work.  Un- 
der such  circumstances  a  majority  of  the 
I'ourts  bold  that  the  relation  of  master  and 
servant  remains  Intact,  extending  to  the  serv- 
ants the  same  rights  as  when  actually  engag- 
fd  In  their  work.  Railway  C!o.  v.  Martin,  13 
Ind.  App.  485,  41  N.  E.  1051;  Blavelt  v.  Saw- 
yer, 1  K.  B.  271;  Heldmaier  v.  Cobbs,  195 
111.  172,  62  N.  E.  853 ;  Olsen  v.  Andrews,  168 
Mass.  261,  47  N.  E.  90 ;  Boldt  v.  Railway  Co., 
18  N.  Y.  432.  Numerous  other  cases  to  the 
same  effect  are  cited  in  the  note  referred 
to. 

The  case  of  Olson  v.  Railway  Co.,  76  Minn. 
149,  78  N.  W.  975,  48  L.  R.  A.  796,  is  different 
in  Its  facts  from  that  at  bar,  and  is  not  In 
point  In  tbat  case  plaintiff,  a  brakeman, 
left  bis  caboose  at  the  end  of  bis  Journey, 
about  2:50  p.  m.,  went  to  his  boarding  place, 
and  at  about  7  o'clock  in  the  evening  return- 
ed to  the  yards  in  search  of  the  caboose,  in 
which  be  bad  left  his  clothing,  and  he  was 
Injured.  It  was  held  properly  that  the  rela- 
tion of  master  and  servant  did  not  exist 
at  the  time  be  was  looking  for  bis  clothing. 
There  was  neither  express  nor  implied  per- 
mission to  go  upon  the  defendant's  premises 
for  that  purpose.    Neither  Is  the  case   of 


Benson  v.  Railway  Co.,  78  Minn.  303,  80  N. 
W.  1050,  In  point  There  the  railroad  em- 
ployes had  ceased  their  work  and  were  re- 
turning to  their  boarding  cars  on  hand  cam 
furnished  by  the  company,  and  plaintiff 
therein  was  injured  by  the  reckiees  conduct 
of  those  in  charge  of  one  of  the  cars  in  pro- 
pelling It  violently  against  a  preceding  car. 
The  court  held  that  during  the  time  the  men 
were  proceeding  to  their  boarding  place  on 
the  hand  cars  they  were,  "as  between  them- 
selves," not  servants  of  the'  company,  and 
that  there  was  no  liability  for  the  negligent 
conduct  of  those  who  caused  the  accident 
complained  of.  Such  Is  not  this  case.  Here 
the  men  were  still  upon  the  premises  of  de- 
fendant at  their  place  of  work,  with  its 
knowledge,  consent  and  implied  invitation, 
and  within  the  authorities  cited,  as  well  as 
upon  principle,  they  were  servants,  and  not 
licensees.  In  so  far  as  Involves  defendant's 
obligation  to  protect  them.  Parkinson  Sugar 
Co.  V.  Riley,  50  Kan.  401,  31  Pac  1090,  34 
Am.  St.  Rep.  123 ;  Rosenbaum  v.  Railway  Co.. 
38  Minn.  173,  36  N.  W.  447,  8  Am.  St  Rep. 
6.'>3. 

We  have  examined  the  Wisconsin  cases  cit- 
ed by  defendant,  and  find  none  of  them  in 
their  facts  at  all  like  the  case  at  bar.  A 
careful  reading  of  the  opinions  of  that  court 
sustains  the  general  view  here  expressed. 
The  trouble  with  the  particular  cases  was 
that  there  was  no  express  or  Implied  Invita- 
tion to  the  servants  to  remain  upon  the  mas- 
ter's premises,  or  to  be  thereon,  at  the  time 
or  place  of  injury.    TIUs  disposes  of  the  case. 

Order  affirmed. 


ZIEHME  et  al.  v.  SIMMS. 

(Supreme  Court  of  Minnesota.    July  23,  1909.) 

Sales   ({   182*)— Actions   fob   Pbice— Ques- 
tions FOB  JURT— ACCEFTANCK. 

In  an  action  to  recover  the  value  of  certain 
jewelry  alleged  to  have  been  sold  and  delivered  to 
defendant,  in  which  defendant  interposed  the  de- 
fense that  he  had  rescinded  the  contract  of  pur- 
chase on  the  ground  that  the  jewelry  furnished 
did  not  correspond  in  kind  and  character  to  that 
called  for  by  the  contract  it  is  held  that  the 
trial  court  erred  in  directing  a  verdict  for  plain- 
tiffs. 

[Ed.  Note.— For  other  cases,  sec  Sales,  Cent. 
Dig.  IS  492-495;    Dec  Dig.  {  182.*] 

(Syllabus  by  the  Cteurt) 

Appeal  from  Municipal  Court  of  Minne- 
apolis; E.  P.  Walte.  Judge. 

Action  by  A.  El.  Ziebme  and  others  against 
William  SImms.  Verdict  for  piniutlffs. 
From  an  order  denying  his  motion  for  Judg- 
ment notwithstaudlng  the  verdict  or  for  a 
new  trial,  defendant  appeals.     Reversed. 

Robert  G.  Morrison,  for  appellant  Ste- 
vens &  Stevens,  for  respondents. 

BROWN,  J.  Action  to  recover  the  value 
of  certain  Jewelry  alleged  to  have  been  sold 


•For  otber  cases  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  A  Reporter  Indexei 


Digitized  by  LjOOQIC 


Minn.) 


ZIEHHE  ▼.  SIUM8. 


469 


:iud  delivered  to  defendant,  In  whicb  plain- 
tiffs had  a  verdict,  and  defendant  appealed 
from  an  order  denying  Ills  alternative  motion 
for  jud^rment  notwithstanding  or  for  a  new 
trial. 

Xbe  defense  to  the  action  was  that  the  jew- 
elry was  sold  to  defendant  under  a  represen- 
tation, or  guaranty,  that  the  same  was  of  a 
ptartlcnlar  kind  and  character,  viz.,  either 
solid  gold,  gold  filled,  or  rolled  gold  plated; 
ttiat  defendant  gave  a  written  order  there- 
for, whicb  contained  a  description  of  the 
goods  as  to  the  kind  and  character  of  gold 
plate;  that  under  the  order  so  given  plaln- 
tilTs  shipped  to  defendant  the  articles  con- 
tracted for,  which'  he  received  and  placed  on 
sale  in  his  store;  that  the  goods  so  shipped 
and  delivered  to  him  were  not  in  fact  of  the 
kind  and  character  specified  in  the  contract, 
but,  on  the  contrary,  a  very  inferior  article 
and  practically  worthless;  that  immediately 
upon  discovering  the  fact  defendant  resclnd- 
ed.  the  contract  and  offered  to  return  the 
Koods  to  plaintiffs,  who  refused  to  accept 
them. 

It  appeared  at  the  trial  that,  in  addition  to 
the  Jewelry  purchased,  plaintiffs  also  fur- 
nished defendant,  at  the  same  time,  certain 
goods  for  "free"  distribution,  and  other  ad- 
vertising matter,  which  defendant,  after  he 
received  the  same,  but  before  discovering 
that  the  Jewelry  did  not  correspond  in  char- 
acter with  the  Jewelry  ordered,  distributed 
among  the  people  In  the  neighborhood.  A 
show  case  was  also  furnished  by  plaintiffs, 
and  defendant  placed  this  in  bis  store,  and 
displayed  therein  the  Jewelry  to  his  custo- 
mers. Within  two  or  three  weeks  after  re- 
ceiving the  goods,  defendant,  not  being  an 
expert  Jeweler,  had  the  same  examined  and 
tested  by  a  competent  person,  and  learned 
from  him  that  the  Jewelry  was  not  of  the 
kind  or  character  contracted  for,  and  he  re- 
scinded the  order,  as  already  stated.  At  the 
trial  l>elow  the  court  directed  a  verdict  for 
plaintiffs,  on  the  ground  that  it  conclusively 
appeared  ftt>m  the  evidence  that  there  was 
an  acceptance  of  the  goods  by  defendant, 
and  that  his  attempt  to  rescind  the  contract 
came  too  late. 

A  large  number  of  errors  are  assigned  and 
discussed  in  the  briefs,  only  one  of  which, 
the  action  of  the  court  In  Instructing  a  ver- 
dict for  plaintiffs,  will  be  mentioned.  Our 
examination  of  the  record  leads  to  the  con- 
clnsion  that  the  question  of  acceptance  of 
the  goods  should  have  been  left  to  the  Jury 
to  determine,  and  as  this  results  in  a  new 
trial  It  becomes  unnecessary  to  consider  the 
other  alleged  errors.  We  may  say,  however. 
In  passing,  that  the  court  properly  refused 
to  direct  a  verdict  for  defendant  The  whole 
case  should  have  gone  to  the  Jury.  Though 
the  contract  under  which  the  Jewelry  was 
Hold  and  shipped  to  defendant  contained  no 


warranty  as  to  quality,  defendant  was  under 
no  obligation  to  accept  or  retain  goods  not 
of  the  kind  or  character  contracted  for,  and 
be  had  the  undoubted  right,  upon  discovering 
that  the  articles  were  not  of  the  kind  order- 
ed, to  rescind  the  contract  Loveland  v.  Stee- 
nerson,  99  Minn.  14,  108  N.  W.  831.  This  de- 
fendant did,  and  unless  his  conduct  in  plac- 
ing the  goods  on  sale  in  his  store,  distribut- 
ing the  "free  articles"  and  advertising  mat- 
ter, his  efforts  to  sell  some  of  the  Jewelry 
after  being  informed  by  his  brother  that  it 
was  bogus  and  of  no  value,  Is  conclusive,  as 
a  matter  of  law,  that  he  accepted  the  same, 
and  thus  precluded  himself  from  rescinding 
the  contract  after  discovering  the  true  char- 
acter of  the  goods,  the  court  erred  In  direct- 
ing a  verdict  against  him. 

We  held,  in  Loveland  v.  Steeneraon,  supra, 
that  defendant  in  that  case  had  the  right  to 
rescind  upon  discovering  the  bogus  character 
of  the  Jewelry,  and  the  rule  there  laid  down, 
which  is  in  harmony  with  the  general  rule 
on  the  subject  of  rescission  (W.  F.  Main  Co. 
V.  Fields,  144  N.  C.  807,  56  S.  E.  943,  11  L. 
R.  A.  {N.  8.]  245),  applies  to  the  case  at 
bar.  Defendant  was  not  required  to  rescind 
until  he  had  definite  Information  that  the 
Jewelry  was  not  what  he  contracted  for; 
and  he  did  not  as  a  matter  of  law,  lose  his 
right  by  his  conduct  before  discovering  Its 
wortblessness  and  true  character,  or  In  dis- 
tributing the  "free  articles"  and  other  adver- 
tising matter.  These  "free"  goods  were  fur- 
nished by  plaintiffs  for  general  distribution, 
and  defendant  in  no  way  prejudiced  his 
riftht  to  rescind  the  contract  upon  discover- 
ing the  fraud  attempted  to  be  practiced  on 
him,  by  complying  with  the  terms  of  the 
contract  in  this  respect  At  least  we  bold 
that  this  was,  on  the  evidence,  a  question  of 
fact  not  of  law.  Nor  was  defendant's  at- 
tempt at  rescission  defective  because  prompt- 
ed by  grounds  other  and  in  addition  to  the 
fact  that  the  Jewelry  was  worthless.  Al- 
though he  failed  to  assign  the  defective  char- 
acter of  the  Jewelry  as  the  ground  of  re- 
scission in  his  notice  to  plaintiffs,  he  ex- 
pressly gave  this  as  his  reason  to  their  attor- 
ney, and  another  agent  who  had  received 
the  daim  for  collection  against  blm. 

Our  conclusion  on  the  whole  record  is  that 
the  question  of  acceptance,  and  the  other 
questions  In  the  case,  should  have  been  sub- 
mitted to  the  Jury,  and  that  the  court  erred 
In  directing  them  to  find  for  the  plaintiffs. 
North  Baltimore  Oo.  v.  Altpeter,  133  Wis.  112. 
118  N.  W.  435;  W.  F.  Main  Co.  v.  Fields,  .144 
N.  0.  307,  56  8.  E.  943,  11  L.  R.  A.  (N.  S.) 
245;  Columbian  Iron  Co.  v.  Douglas,  64  Md. 
44,  34  Atl.  1118,  :«  L.  R.  A.  103,  57  Am.  St 
Rep.  3t>2;  Hudson  v.  Roos,  72  Mich.  SC8,  40 
N.  W.  467. 

Order  reversed 


Digitized  by 


Google 


480 


122  NOBTHWESTSBN  REPORTER. 


(Minn. 


BALDWIN  T.  CAPITOL  STEAM  LAUNDRY 
CO. 

(Sapieme  Ooort  of  Minneaota.    Joly  80,  1909. 
On  RefaearinK,  Aug.  11,  1909.) 

1.  MAUCIOUa    PB08KOI7TIOH    ({    22*)— ADTICB 
OW  CODKTT  ATTOBNET. 

When  a  full  and  fair  disclosure  of  all  the 
facts  is  made  to  the  county  attorney,  and  a 
criminal  complaint  is  then  filed  upon  his  ad- 
vice, an  action  for  malicions  prosecution  will 
not  lie. 

.  [Ed.  Note.— For  other  cases,  see  Malicious 
ProBecutlon,  Cent  Dig.  H  4!^-48:  Dec.  Dig. 
§  22.*]         »  ••    " 

2.  Mauoioub  Pbosectjtion  (|  71*)— Proba- 
ble Oaubb. 

When  the  facts  are  not  controverted,  the 
question  of  probable  cause  is  one  of  law. 

[Ed.  Note. — For  other  cases,  see  Meliciotis 
Prosecution,  Cent  Dig.  {  161 ;  Dec.  Dig.  {  71.*] 

Lewis  and  Brown,  JJ.,  dissenting. 

(SyllabuB  by  the  Court.) 

Appeal  from  District  Court,  Ramsey  Coun- 
ty; Olln  B.  Lewis,  Judge. 

Action  by  C.  R.  Baldwin  against  the  Capi- 
tol Steam  Laundry  Company.  Verdict  for 
plaintiff.  From  an  order  denying  motion  for 
Judgment  notwithstanding  the  verdict  or  for 
a  new  trial,  defendant  ai^eals.  Reversed 
and  remanded. 

P.  J.  McLaughlin,  for  appellant  Morton 
Barrows,  for  respondent 

ELLIOTT,  3,  In  this  action  for  damages 
the  plaintiff,  Baldwin,  recovered  a  verdict  for 
$800,  and  the  defendant  appealed  from  an  or- 
der denying  Its  motion  for  Judgment  or  for 
a  new  trial. 

There  was  some  controversy  as  to  whether 
or  not  the  complaint  states  a  cause  of  action 
for  false  Imprisonment  or  for  malldous  pros- 
ecution, and  the  submission  of  the  case  on 
the  theory  that  the  action  Is  for  malicious 
prosecution  la  assigned  as  error.  If  the  ac- 
tion was  for  false  ImpriBoumeut  only,  it  is 
clear  that  the  defendant  was  entitled  to  a 
directed  verdict  We  proceed,  however,  to 
consider  the  case  upon  the  theory  that  the 
court  was  right  In  ruling  that  the  complaint 
states  an  action  for  malicious  prosecution. 

Prior  to  April,  1907,  the  plaintiff  was  In  the 
employ  of  the  defendant  under  a  contract 
which  required  him  to  deliver  laundry  bun- 
dles and  make  collections  therefor.  A  con- 
troversy arose  as  to  whether  or  not  he  had 
turned  over  all  the  moneys  collected.  He  was 
discharged,  and  thereafter,  upon  the  com- 
plaint of  the  treasurer  and  manager  of  the 
defendant  company,  a  criminal  complaint 
was  made  against  him  In  the  municipal  court 
of  the  dty  of  St  Paul,  charging  him  with  the 
larceny  of  a  certain  amount  of  money,  ex- 
ceeding $50.  The  complaint  was  sworn  to  by 
John  Keefe,  treasurer  and  manager  of  the  de- 
fendant company,  and  was  filed  or  caused  to 
be  filed  by  the  county  attorney  with  the  clerk 


of  the  court  A  warrant  was  thereupon  Issued 
In  due  form  out  of,  and  under  the  seal  of,  the 
court  Under  this  warrant  the  plaintiff  was 
arrested,  and  after  a  hearing  before  the  mu- 
nicipal court  was  bound  over  to  appear  be- 
fore the  grand  Jury.  Ball  was  fixed  at  $100, 
and  In  default  thereof  the  plaintiff  was  com- 
mitted to  the  county  Jail,  where  he  ranaln- 
ed  for  26  days.  The  grand  Jury  reported  no 
bill,  and  the  plaintiff  was  discharged  from 
custody.  Thereafter  this  action  was  com- 
menced. 

Upon  the  trial  the  defendant  attempted  to 
prove  that  the  plaintiff  was  in  fact  guilty  of 
larceny,  and  almost  the  entire  record  Is  de- 
voted to  testimony  upon  that  Issue,  It  Is  rea- 
sonably clear  to  us,  from  the  examination 
we  have  been  able  to  make  of  the  accounts, 
that  after  giving  the  plaintiff  credit  for  all 
he  demanded  he  was  still  short  In  his  ac- 
counts. But  we  do  not  determine  the  appeal 
upon  that  Issue.  The  complaint  was  made  by 
Mr.  Keefe,  treasurer  and  manager  of  the  ap- 
pellant company.  It  appears  beyond  question 
that  he  placed  the  books  of  account  in  the 
hands  of  the  county  attorney,  and  made  a 
full  and  fair  disclosure  of  all  the  facts  with 
reference  to  the  matter  to  him.  At  the  re- 
quest of  the  county  attorney,  Mr.  Keefe 
brought  his  books  and  records  to  the  county 
attorney's  office,  and  they  were  subjected  to 
examination  by  the  county  attorney.  The 
consultation  lasted  some  two  or  three  hours, 
and  thereafter  the  county  attorney  prepared 
the  complaint  and  had  Mr.  Keefe  sign  and 
swear  to  it  We  find  nothing  In  the  record 
which  suggests  that  Mr.  Keefe  overstated 
anything  to  the  county  attorney,  or  that  he 
did  not  fully  and  truly  state  all  the  facts 
within  his  knowledge,  or  which  he  had  rea- 
son to  believe  existed.  On  cross-examination 
Mr.  Keefe  testified  as  follows :  "Q.  Now,  did 
the  county  attorney  accept  your  statement  as 
to  the  amount  of  shortage,  or  did  he  himself 
go  through  the  books,  to  balanc'e  Mr.  Bald- 
win's accounts  and  himself  determine  the 
amount  he  was  short  on  the  books?  A.  He 
went  through  the  books.  Q.  Made  a  careful 
examination?  A.  Yes;  took  quite  a  while. 
Q.  Yes,  and  drew  his  own  conclusions  from 
them.  That  Is  true.  Is  it?  A.  Yes,  sir;  yes, 
sir.  Q.  Now,  this  conversation  to  which  you 
have  testified,  and  which  you  are  testifying 
about  now,  was  it  with  whom?  A.  Mr.  Ryan 
(assistant  county  attorney).  Q.  And  he  is  the 
one  on  whose  advice  you  acted?  A.  Yes,  sir. 
Q.  He  Is  the  one  whom  you  say  examined  the 
records  and  arrived  at  his  own  results?  A. 
Yes,  sir.  Q.  And  conclusions?  A.  Yes,  sir. 
Q.  About  how  long  was  Mr.  Ryan  In  making 
his  examination  of  the  books  and  reaching 
his  own  conclusions  as  to  the  amount  of  Mr. 
Baldwin's  shortage?  A.  I  should  Judge  about 
two  or  three  hours.  I  know  I  was  up  there 
about  that  time,  anyhow." 


•For  other  cues  tee  same  topic  and  section  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by 


Google 


Hlnit.) 


RELIABLE  MATOH  CO.  ▼.  PRICE. 


461 


This  teetdmony  la  not  challenged.  Upon  the 
Issae  as  to  the  actual  condition  of  Baldwin's 
acconnts  the  books  were  not  concluglve  evi- 
dence; but  we  find  nothing  in  the  record 
which  tends  to  show  that  Mr.  Keefe  did  not 
at  the  time  believe  that  Baldwin  had  appro- 
priated the  money.  The  question  is  not 
whether  Baldwin  was  In  fact  guilty,  but 
whether  Keefe  at  the  time  had  reasonable 
cause  to  believe  that  he  was  guilty.  It  ap- 
pears that  he  placed  all  the  evidence  in  his 
possession  before  the  county  attorney  and 
that  he  made  a  full  and  fair  disclosure  of  the 
facts.  The  facts  not  being  In  dispute,  the 
question  of  probable  cause  was  for  the  court, 
and  not  for  the  Jury,  to  determine.  Moore  v. 
Railway  Co.,  87  Minn.  147,  33  N.  W.  834; 
GilbertBon  v.  Fuller,  40  Minn.  413,  42  N.  W. 
203 ;  Genevey  v.  Edwards,  55  Minn.  88,  56  N. 
W.  578 ;  Shea  t.  Lumber  Co.,  92  Minn.  348, 
100  N.  W.  111. 

The  order  of  the  trial  court  is  reversed,  and 
the  case  remanded,  with  directions  to  enter 
Judgment  for  the  defendant 

LEWIS,  J.  I  dissent  Mr.  Baldwin,  as 
driver,  was  charged  with  all  laundry  accounts 
upon  his  route,  and  It  was  his  duty  to  turn 
into  the  office  all  cash  received,  and  to  return 
bundles  when  cash  was  not  received.  He  was 
allowed  a  commission  on  all  business  In  ex- 
cess of  a  certain  amount ;  but  the  system  of 
bookkeeping  was  imperfect  and  there  were 
many  uncertainties  and  contingencies  growing 
out  of  the  fact  that  disputes  arose  with  cus- 
tomers over  the  amount  due  and  lost  or  dam- 
aged articles.  There  was  a  substantial  con- 
troversy between  Mr.  Baldwin  and  Mr.  Keefe, 
as  manager  of  the  laundry,  over  the  amount 
that  had  been  collected,  on  account  of  which 
Baldwin  was  discharged,  ^d  on  the  follow- 
ing day  he  was  arrested  and  put  into  Jail  on 
the  charge  of  embezzlement.  At  the  close  of 
the  trial  defendant's  attorney  moved  the 
•court  to  direct  a  verdict  for  defendant  upon 
the  ground,  among  others,  that  it  conclusive- 
ly appeared  from  the  evidence  that  plaintiff 
•did  not  pay  over  aU  of  the  money  collected 
In  the  course  of  his  emplojrment  and  that  It 
conclusively  appeared  from  the  evidence  that 
after  a  full  and  fair  statement  of  all  the  facts 
In  the  case,  and  the  books  and  records  upon 
which  the  accounts  were  contained,  the  coun- 
ty attorney  advised  that  the  offense  complain- 
ed of  had  been  committed,  and  that  Keefe 
had  acted  in  good  faith  and  relied  on  such 
advice  In  procuring  Baldwin's  arrest  The 
court  denied  the  motion,  and  charged  the 
Jury  that  the  question  of  the  actual  and  true 
state  of  accounts  was  material,  as  bearing  up- 
on the  question  whether  Keefe  had  probable 
cause  to  believe  that  plaintiff  was  guilty  of 
wrongfully  taking  money  from  the  defendant 
at  the  time  Keefe  commenced  the  prosecution 
In  the  municipal  court  and  upon  the  question 
of  the  advice  of  counsel  that  It  was  the  law 


that  a  prosecution  commenced  In  good  faith 
upon  the  advice  of  competent  counsel,  obtain- 
ed after  a  full  and  exact  statement  of  all  the 
material  facts  known  to  the  prosecutor  and 
which  he  had  reason  to  believe  existed,  was 
a  complete  defense,  and  the  court  left  It  to 
the  Jury  to  determine  whether  or  not  Keefe 
had  stated  to  the  county  attorney  all  the 
facts  bearing  upon  the  guilt  or  innocence  of 
the  plaintiff,  or  which.  In  the  exercise  of  rea- 
sonable diligence,  he  should  have  known,  and 
whether  he  acted  in  good  faith  on  the  advice 
of  the  attorney  In  initiating  the  prosecution. 

In  my  opinion,  the  court  was  correct  in 
submitting  this  question  to  the  Jury.  Under 
proper  instructions  the  Jury  found  that  Bald- 
win was  not  indebted  to  the  laundry  in  any 
amount  and  the  contradictory  statements 
and  claims  of  Mr.  Keefe  as  to  the  amount  due 
and  the  indefinite  method  of  keeping  the  ac- 
counts made  the  good  faith  of  Keefe  in  caus- 
ing Baldwin's  arrest  a  question  for  the  Jury. 
It  does  not  satisfactorily  appear,  to  my  mind, 
that  Keefe  presented  all  the  facts  to  the  coun- 
ty attorney  and  in  good  faith  relied  upon  the 
advice  given  him  as  a  result  of  the  investi- 
gation. 

I  discover  no  other  errors  in  the  case,  and 
am  of  opinion  that  the  order  appealed  from 
should  be  affirmed. 

BROWN,  J.  I  concur  In  the  views  of  Mr. 
Justice  LEWIS. 

On  Rehearing. 

PER  CURIAM.  Having  duly  considered 
the  respondent's  petition  for  a  reargument  of 
this  cause,  it  is  ordered  that  the  petition  be 
and  it  is  hereby  denied;  but  upon  a  fur- 
ther Anslderation  of  the  evidence  the  court 
is  of  the  opinion  that  it  is  not  so  conclusive 
in  defendant's  favor  as  to  entitle  it  to  Judg- 
ment notwithstanding  the  verdict  Therefore 
It  is  ordered  that  the  order  remanding  the 
cauae  be  and  It  is  hereby  amended  so  as  to 
read  as  follows: 

Ordered  that  the  order  appealed  from  be 
and  it  is  hereby  reversed,  and  a  new  trial 
granted. 


RELIABLE  MATCH  CO.  v.  PRICE  et  al. 
(Supreme  Court  of  Minnesota.    July  23,  1909.) 

1.  Evidence  ({  397*)— Pabol  Evidence  At- 
FEOTiNO  Writings— CONTBACT  Entibelt  in 
Wbitino. 

The  contract  referred  to  in  this  opinion 
embraced  the  entire  agreement  of  settlement 
concerning  prior  shipments  of  merchandise. 

[Ed.   Note. — For  other  cases,   see   Evidence, 
Cent  Dig.  {{  1756-1T65;    Dec.  Dig.  {  397.*] 

2,  Sales  (J  82*)— Contbact— Conbtbuotion. 

Accoidinc  to  the  undisputed  evidence  the 
^650  referred  to  in  the  contract  t>ecame  due 
on  appellant's  refasal  to  accept  a  subsequent 
tender  of  merchandise,  and  the  trial  court  was 


•Tar  atkar  caaaa  saa  laina  topic  and  lactton  NUMBER  In  Dae.  *  Am.  Dlga.  1907  to  data,  *  Rapartar  Indazai 


Digitized  by 


L-oogle 


462 


122  NOBXHWBSTERN  REPORTER. 


(MUlU. 


warranted  in  diiectinx  a  verdict  for  respond- 
ent for  that  amount,  less  certain  credits. 

[Ed.  Note.— For  otlier  cases,  see  Sales,  Dec. 
Dig.  i  82.»J 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Ramsey  Coun- 
ty ;  George  U  Bunn,  Judge. 

Action  by  tbe  Reliable  Matcli  Company 
against  A.  A.  Price  and  others.  Judgment 
for  plaintiff,  and  defendants  appeal.  Af- 
firmed. 

Percy  D.  Godfrey,  for  appellants.  Gilbert 
&  Greeuman,  for  respondent 

I;EWIS,  J.  Respondent  brouglit  this  ac- 
tion to  recover  the  sum  of  ^48.80  for  tbe  bal- 
ance claimed  to  t>e  due  on  merchandise,  con- 
sisting of  matches,  sold  between  the  14th  day 
of  November,  1905,  and  the  1st  day  of  Oc- 
tober, 1906.  The  answer  alleged  as  a  de- 
fense that  appellants  had  paid  out  for  the 
account  of  respondent  certain  sums  for 
freight,  and  had  returned  certain  merchan- 
dise not  accounted  for,  and  that  respondent 
had  not  accounted  for  a  certain  credit  allow- 
ed because  of  defective  goods,  and  pleaded  a 
contract  between  the  parties  of  date  June  5, 
1906,  which  reads:  "St.  Paul,  Minn.,  June  5, 
1906.  Price,  Robbins  &  Nevrton,  St  Paul, 
Minn. — Gentlemen:  Our  proposition  to  you 
for  a  satisfactory  adjustment  of  the  losses 
sustained  by  you  In  the  sale  of  our  last  car 
of  matches  shipped  you  is  as  follows:  We 
will  allow  you  to  hold  as  a  guaranty  of  good 
faith  a  balance  due  us  for  $550,  against 
which  we  will  allow  you  a  credit  rebate  on 
the  first  thousand  cases  of  Parlor  Composi- 
tion Magic  Tips  to  be  shipped  you  of  55  cents 
per  case.  It  is  understood  that  you  are  to 
hold  the  $ao0  as  a  guaranty  until  th|  entire 
thousand  cases  have  been  delivered  to  your 
satisfaction,  which  will  wipe  out  this  rebate, 
and  the  amount  of  $550  shall  then  become 
due  with  the  last  Invoice  covering  the  thou- 
sand cases.  If  this  is  satisfactory  to  you, 
your  written  acceptance  hereon  will  consti- 
tute an  agreement  between  us  covering  this 
adjustment.  Tours  truly,  Reliable  Match 
Co.,  per  A.  H.  Landedeh.  (Paid  July  22, 
1907.)  St  Paul,  Minn.  Accepted.  Price,  Rob- 
bins  &  Newton,  per  R.  L.  Robbins."  The 
trial  court  directed  a  verdict  for  respondent 
for  $232.10,  and  appellants  claim  error  on 
the  ground  that  the  court  misconstrued  tbe 
contract,  and  that  according  to  the  evidence 
there  was  a  disputed  question  as  to  the 
amount  due  which  should  have  been  submit- 
ted to  the  Jury. 

The  merchandise  consisted  of  matches 
manufacturd  by  respondent  at  Ashland,  Ohio. 
Four  car  load  shipments  were  made.  The 
first,  on  November  14,  1005,  was  paid  for  In 
full,  and  there  is  no  controversy  in  regard 
to  It  The  second  was  of  diite  February  2i 
1906,  and  the  contract  of  settlement  above 
((uoted  was  executed  with  reference  to  the 


335  cases  of  "Magic  Tips"  matches  coutaiuea 
in  this  shipment  The  third  car  load  wai> 
shipped  July  11,  1906,  and  contained  3SU 
cases  of  "Magic  Tips."  The  fourth  car,  shli>- 
ped  October  1,  1906,  contained  400  cases  of 
"Magic  Tips."  According  to  the  undisputed 
evidence,  api)ellants  made  objection  to  tbe 
quality  of  the  "Magic  Tips"  matches  con- 
tained In  the  second  shipment,  whereupon  a 
controversy  arose,  and  the  contract  of  June 
5,  1906,  was  executed  in  settlement  of  the 
dispute.  Appellants'  position  is  that  the 
$550  mentioned  In  the  contract  was  intended 
to  l)e  a  permanent  credit  conceded  to  tbcui 
on  account  of  the  poor  quality  of  the  "Magic 
Tips"  matches  in  the  second  shipment ; 
whereas,  respondent  claims  that  appeiiant.-i 
were  to  retain  the  sum  of  $550  then  due  as  u 
guaranty  for  the  performance  of  the  contract 
that  respondent  would  allow  a  rebate  of  5'j 
cents  per  case  on  tbe  first  1,000  cases  of 
"Magic  Tips"  to  be  shipped  thereafter,  and 
that,  when  the  1,000  cases  of  the  proper  qual- 
ity had  been  delivered,  then  the  $550  so  re- 
tained as  a  guaranty  should  become  due  and 
payable. 

The  evidence  was  conclusive  that  subse- 
quent to  the  execution  of  this  contract  re- 
spondent delivered  by  the  third  and  fourth 
shipments  780  cases  of  "Magic  Tips"  matclies, 
and  was  ready  and  willing  to  deliver  the 
other  220  cases  (to  make  the  1,000  cases),  but 
that  appellants  refused  to  accept  the  same. 
The  trial  court  construed  the  contract  In  ac- 
cordance with  respondent's  view,  and  held 
that  the  $550  was  not  a  permanent  credit,  but 
was  left  in  the  possession  of  appellants  as  :i 
guaranty  for  the  performance  of  the  agree- 
ment to  deliver  1,000  cases  at  a  rebate  of  5.'> 
cents  per  case,  and  arrived  at  the  amount  due 
by  deducting  55  cents  per  case  on  the  220 
cases  not  delivered,  and  certain  other  undis- 
puted amounts  claimed  to  have  been  paid  by 
appellants. 

It  is  our  opinion  that  the  contract  em- 
bodied the  entire  agreement  between  the  par- 
ties with  reference  to  the  controversy  prior 
to  and  at  the  date  of  Its  execution,  and  hence 
parol  testimony  regarding  the  nature  of  the 
agreement  was  inadmissible.  The  books  of 
account  offered  by  appellants  were  not  ad- 
missible, there  being  no  dispute  as  to  the 
facts.  The  court  correctly  construed  the  con- 
tract and  was  warranted  in  directing  a  ver 
diet  for  tbe  amount  stated. 

Affirmed. 


STATE  ex  rel.  FARRER  t.  MelNTOSH. 

(Supreme  Court  of  Minnesota.    July  30,  1909.) 

1.  Officers  (8  53*)— Term  of  Office— Offi- 
cial Year. 

The  ofliciai  year  comraenres  on  the  first 
Monday  of  January,  at  which  time  all  tenne  of 
office  terminate.  Section  9,  art.  7,  State  Cou- 
stitution;    State  ex  rel.  v.  Friizell,  31  Minu. 


•For  other  caaea  aeo  um*  topic  and  aectlon  NUMBER  In  Dec.  A  Am.  Dlca.  1907  to  data,  ft  ReporUr  Ind«ui 


Digitized  by  VjOOQ  IC 


Minn.) 


STATE  V.  MolNTOSH. 


463 


460.  18  N.  W.  816:    State  ex  rel.  ▼.  O'Leary, 
64  Minn.  207,  66  N.  W.  264. 

[Ed.  Note.— For  other  cases,  gee  OfiBcers,  Cent 
Die.  {  73:    Dec.  Dig.  (  63.»] 

2.  Time  (5§  8,  11»)  —  Days  —  Fractions  or 

DAT.  • 

The  law  doea  not  recognize  fractions  o{  a 
day,  and  the  official  year  begins  with  the  be- 
ginning of  the  day,  12  o'clock  midnight. 

[Ed.  Note.— For  other  cases,  see  Time,  Cent 
Dig.  H  10,  53 ;  Dec.  Dig.  «  8,  ll.»] 

3.  Officebs  (t  85*)  —  Qualification  —  Time 
Fob. 

Bnt  the  Constitution  contemplates  that  the 
new  officers  shall  have  reasonable  opportunity 
to  qnalif^  and  assume  the  duties  of  office  after 
the  opening  of  business  hours  on  that  day,  and 
in  case  of  necessity  may  qualify  at  any  time 
during  the  day. 

[Ed.  Note.— For  other  cases,  see  Officers,  Dec. 
Dig.   (  35.»] 

4.  Officers  ({  63*)  —  Holdino  Over  First 
Official  Day— Jubisdiction, 

Strictly  speaking,  outgoing  officers  do  not 
pass  out  of  office  until  the  close  of  the  first 
day  of  the  official  year,  unless  their  successors 

gualify  at  some  time  during  the  day;  but  such 
olding-over  officers,  pending  the  qualification 
of  the  new  officials,  are  limited  in  jurisdiction 
on  that  day  to  the  closing  np  of  old  business 
and  to  matters  of  necessity. 

[Ed.  Note.*— For  other  cases,  see  Officers,  Dec. 
Dig.  t  53.»] 

5.  Officebs  (|  53*)- First  Officiai.  Day- 
Delay  IN  QuALlriCATION. 

All  business  which  _  naturally  belongs  to 
the  first  day  of  the  official  year  is  within  the 
jurisdiction  of  the  incoming  officials,  although 
there  may  be  some  delay  during  the  day  m 
qualifying  and  assuming  official  duties. 

[EJd.  Note.— For  other  cases,  see  Officers,  Dec. 
Dig-  f  53.»] 

6.  Officebs  (I  52*)— Counties  (J  43*)— Hold- 
ing OvGB  FiBST  Official  Day— Jubisdic- 
tion. 

In  1907  a  board  of  county  commission- 
ers was  appointed  by  the  proclamation  of  the 
Governor,  and  on  toe  0th  day  of  November, 
1908,  such  board  appointed  respondent  to  fill 
the  vacancy  in  the  office  of  sheriff  occasioned 
by  the  death  of  P.  A.  Walsh.  At  1:30  o'clock 
p.  m.  on  Monday,  the  4th  day  of  January  1909, 
the  then  remaining  three  members  of  said  board 
appointed  respondent  to  fill  the  vacancy  in  the 
office  of  sheriff  for  the  term  of  two  years  com- 
mencing on  the  4th  day  of  January,  1009,  to 
which  Mr.  Walsh  bad  been  elected  at  the  No- 
vember election,  1908.  Held,  the  term  of  of- 
fice of  respondent,  by  virtue  of  his  appointment 
in  November,  1908,  did  not  terminate  on  Jan- 
uary 4,  1909,  until  the  successor  of  Mr.  Walsh 
for  the  two-year  term  was  appointed  and  had 
qualified.  The  appointment  oi  such  successor 
to  Mr.  Walsh  for  the  two-year  term  was  new 
business  arising  and  naturally  pertaining  to  the 
first  day  of  the  official  year,  and  the  outgoing 
board  was  without  authority  on  that  day  to  ap- 
point respondent  to  fill  such  office.  Relator, 
having  been  duly  appointed  as  such  successor 
by  the  new  board  of  county  commissionerR,  and 
having  duly  qualified  as  such  official,  is  en- 
titled to  the  office. 

[Bd.  Note.— For  other  cases,  see  Officers,  Dec, 
Dig.  {  52  ;•   Counties.  Dec.  Dig.  (  43.»] 

(SyllabnJB  by  the  Court.) 

Original  proceedings  In  quo  warranto  by 
the  State,  on  relation  of  Henry  W.  Farrer, 
to  test  the  validity  of  the  appointment  of 


Hugh  T.  Mcintosh  as  sheriff  of  Koochich- 
ing county.    Writ  of  onster  issued. 

Oeorge  T.  Simpson,  Atty.  Gen.,  J.  C.  Cham- 
berlain, M.  A.  Spooner,  and  F.  J.  McPartlin. 
for  the  State.  George  H.  Spear  and  Spear 
&  Stone,  for  respondent 

LEWIS,  J.  By  the  Governor's  proclama- 
tion (Gen.  Laws  1907,  p.  Ill)  Ronald  S.  Mc- 
Donald, Nels  L.  Olson,  Fred  Smith,  Charies 
M.  Bowman,  and  Hugh  T.  Mcintosh  were 
appointed  to  constitute  the  first  board  of 
county  commissioners  of  Koochiching  coun- 
ty. P.  A.  Walsh  was  the  sheriff  of  the  coun- 
ty during  1907,  and  at  the  general  election 
held  November  3,  1908,  was  elected  for  the 
term  commencing  on  the  4th  day  of  January. 
1009;  but  he  died  November  4,  1908.  Re- 
spondent, Mcintosh,  resigned  his  office  as 
county  commissioner  on  November  6,  190S. 
and  on  November  9,  1908,  the  remaining 
members  of  the  board  appointed  him  sheriff 
to  "fill  the  vacancy  in  said  office  caused  by 
the  death  of  the  said  P.  A.  Walsh,  for  the 
remainder  of  the  unexpired  term  of  said  P. 
A.  Walsh,  deceased,  and  until  his  successor 
qualifies."  Thereupon  Mr.  Mcintosh  execut- 
ed a  bond  and  entered  upon  the  performance 
of  the  duties  of  the  office.  On  the  first  Mon- 
day in  January,  1909  (January  4th),  R.  S. 
McDonald,  Nels  L.  Olson,  and  Fred  Smith. 
the  then  remaining  members  of  the  board, 
held  a  special  meeting  at  1 :30  o'clock  p.  m. 
in  the  county  auditor's  office,  and  apiH>inted 
Mr.  Mcintosh  sheriff  for  the  term  of  two 
years,  from  the  first  Monday  In  JaBuary. 
1909,  until  the  first  Monday  In  January-. 
1911,  to  fill  the  vacancy  caused  by  the  death 
of  Mr.  Walsh.  Respondent  was  then  present, 
and  executed  a  bond,  and  took  the  oath  of 
office.  Tb&  bond  was  filed  at  1:30  p.  m. 
January  4,  1909,  but  was  not  approved.  Im- 
mediately after  this  act  the  board  of  com- 
missioners, consisting  of  new  members  who 
had  been  elected  at  the  November,  1908, 
election,  qualified  and  entered  upon  their 
term  of  office,  and  at  4  o'clock  p.  m.  Janu- 
ary 4,  1909,  held  their  first  meeting.  On  Jan- 
uary 5,  1909,  the  new  board  held  its  second 
meeting,  and,  on  motion,  laid  the  bond  of 
respondent  on  the  table  without  action.  The 
new  board  held  a  special  meeting,  upon  no- 
tice, on  January  27th,  at  which  time  they 
appointed  the  relator,  Henry  W.  Farrer,  as 
sheriff  to  fill  the  vacancy  caused  by  the 
death  of  P.  A.  Walsh.  Farter's  bond  was 
duly  filed  and  approved,  and  this  action  was 
brought  on  the  relation  of  Farrer  to  test 
the  validity  of  the  appointment  of  respondent 
Mcintosh. 

The  important  question  Is:  Did  the  old 
board  have  authority  to  fill  the  vacancy  for 
the  ensuing  two  years  caused  by  the  deatli 
of  Mr.  Walsh?  By  section  9,  art.  7,  of  the 
state    Constitutloh,    the   official    year   coni- 


•Fsr  other  cues  ae«  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  Indexe* 


Digitized  by  VjOOQ  l€ 


464 


122  NOBTHWESTBRN  RBPORTER. 


Qlinn. 


mences  on  tbe  first  Monday  of  January,  at 
vbich  time  ^11  terms  of  office  termlnata 
State  ex  rel.  Lnll  t.  Frizzell,  31  Minn.  460, 
18  N.  W.  316.  In  that  case,  however,  there 
was  no  occasion  to  consider  whether  the  of- 
ficial year  commenced  at  any  particular  time 
of  the  day.  The  statute,  following  the  Con- 
stitution, defines  the  term  of  office  as  fol- 
lows: "The  term  of  office  of  every  state 
and  county  officer  shall  begin  on  the  first 
Monday  In  January  next  succeeding  his  elec- 
tion, unless  otherwise  provided  by  law." 
Rev.  Laws  1905,  {  155.  The  statute  does 
not  provide  that  county  commissioners  shall 
hold  office  until  their  successors  are  elected 
and  qualified;  but  section  546,  Rev.  Laws 
1905,  provides  that  a  sheriff  shall  hold  office 
for  two  years  and  until  his  successor  la 
elected  and  has  qualified.  Notwithstanding 
the  constitutional  provision  that  the  official 
year  commences,  and  all  terms  of  office  ter- 
minate, on  the  first  Monday  In  January,  it 
seems  to  have  been  generally  the  Impression 
that  outgoing  officers  are  entitled  to  hold 
over  after  the  first  Monday  in  January  and 
until  such  time  as  their  successors  qualify. 
Such  would  no  doubt  be  the  rule,  in  the  ab- 
sence of  constitutional  restrictions.  But, 
when  tlie  Constitution  fixes  the  day  ui>on 
which  the  official  term  shall  begin,  there  is 
no  legislative  authority  to  continue  the  of- 
fice beyond  that  period,  even  though  the 
successor  fails  to  qualify  -within  the  time. 
State  ex  reL  Childs  v.  O'Leary,  64  Minn.  207, 
66  N.  W.  264.  The  day  begins  at  12  o'clock 
midnight,  and  the  law  does  not  recognize 
fractions  of  a  day.  State  ex  rel.  Baxter  y. 
Brown,  22  Minn.  482;  note  in  State  v.  Mi- 
chel, 78  Am.  St  Rep.  364.  It  is  fair  to  as- 
sume, however,  that  it  was  not  intended  by 
the  framers  of  the  Constitution  that  the 
change  in  office  should  take  place  at  12 
o'clock  midnight  The  incoming  officers 
should  have  a  seasonable  and  reasonable 
time  at  the  beginning  of  the  business  por- 
tion of  the  first  official  day  In  which  to  qual- 
ify and  assume  their  duties.  Some  unfore- 
seen circumstance  might  delay  the  oppor- 
tunity to  qualify  until  the  latter  part  of  the 
day;  but  that  fact  could  not  result  In  de- 
priving that  day  of  the  prestige  accorded  to 
It  by  the  Constitution.  It  is  fairly  to  be  in- 
ferred from  the  language  of  the  section  that, 
although  the  whole  of  the  day  belongs  to 
the  new  official  year,  yet  for  convenience, 
and  to  prevent  an  interregnum,  the  qualifica- 
tion of  the  new  officer  may  take  place  at  a 
convenient  hour,  according  to  the  exigencies 
of  the  case.  If  any  business  at  all  be  trans- 
acted on  that  day  by  the  outgoing  board 
prior  to  the  qualification  of  the  new  mem- 


bers. It  should  be  confined  to  the  dosing  up 
of  pending  matters,  or  to  matters  of  neces- 
sity. All  business  which  naturally  pertains 
to  the  new  official  year  Is  within  the  Juris- 
diction of  the  incoming  board. 

Although  the  new  members  of  the  board 
did  not  qualify  until  after  1:30  o'clock  p. 
m.  January  4th,  it  does  not  follow  that  the 
old  board  were  vested  with  authority  in  the 
meantime  during  that  day  to  transact  busi- 
ness which  properly  arose  on  the  first  day 
of  the  official  year.  There  was  no  vacancy 
In  the  office  of  sherUC  at  1 :30  o'clock  p.  m. 
True,  If  Mr.  Walsh,  had  been  living  and  had 
qualified  during  the  morning  of  that  day, 
then  by  virtue  of  such  act  his  official  year 
would  have  commenced  and  the  old  term 
would  have  expired;  but  the  then  incum- 
bent was  entitled  to  hold  by  virtue  of  his 
appointment  until  such  time  during  the  day 
as  the  successor  was  appointed  and  qualified. 
No  vacancy  existed  In  the  office  of  sheriff  at 
1:30  p.  m.,  and  could  not  exist  during  the 
day  until  the  two-year  vacancy  was  filled. 
The  old  board  attempted  to  create  a  vacancy 
by  appointing  respondent  but  the  act  was 
an  unwarranted  assumption  of  authority. 
We  are  aware  that  as  a  general  rule  a  board 
with  continuing  power  has  authority  to  an- 
ticipate the  future  and  make  appointments 
to  take  effect  In  the  future;  but  such  au- 
thority exists  only  where  the  vacancy  occurs 
at  a  time  when  the  board  as  then  constituted 
is  stlU  vested  with  full  legal  authority,  and 
we  know  of  no  case  which  holds  that  outgo- 
ing officers  may  encroach  upon  the  first  day 
of  the  official  year  for  the  purpose  of  tying 
the  hands  of  their  successors  in  this  manner. 
In  the  recent  case  of  Manley  v.  Scott  (Minn.) 
121  N.  W.  628,  the  term  of  office  of  two  of 
the  five  members  of  the  board  of  commission- 
ers of  Hennepin  county  expired  on  the  4tb 
of  January,  at  which  time  they  were  suc- 
ceeded by  two  new  members  elected  at  the 
preceding  election,  and  it  was  held  that  the 
so-called  old  board  had  authority  on  the 
3lBt  day  of  December  to  appoint  a  morgue 
keeper  for  the  year  to  commence  on  the  1st 
day  of  January,  the  term  of  Ids  prior  ap- 
pointment expiring  on  that  day;  but  the 
case  has  no  application  here. 

On  the  admitted  facts  before  us,  no  va- 
cancy existed  on  tbk  4th  day  of  January 
which  the  outgoing  board  could  legitimately 
fill,  and  hence  their  act  in  appointing  re- 
spondent for  the  ensuing  two  years  was  inu- 
tile, and  the  relator,  having  been  legally 
appointed  and  having  qualified.  Is  entitled  to 
the  relief  prayed  for. 

Let  writ  of  ouster  Issue. 


Digitized  by 


Google 


Hlnnu) 


OLOEENEB  v.  HARDWOOD  MFG.  00. 


465 


GLOEKNEB  ▼.  HARDWOOD  MFQ.  CO. 
(Sapreme  Conrt  of  Minneaota.    July  80,  1909.) 

1.  Macteb  aitd  Sebvant  ({  285*)— IRJUBT  to 

SeBVANT— GUABDinO     MACHINBBT— BUBDEN 

OS  PBOor. 

Where  the  pimctieability  of  caaidlng  dan- 
geroas  machinery  ia  in  dispate,  the  burden  is 
opon  the  plaintiff  to  prove  tliat  it  la  practical. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  t  901;    Dec.  Dig.  i  265.*] 

2.  Mabteb  and  Scbvaht  ((  278*)— Injubt  to 
Sebvast  —  GCABDiNO  Machikebt  —  Eri- 

DERCE. 

Respondent  accidentally  tpt  her  hand 
caught  in  the  cylinders  of  a  printing  press.  The 
nippers  and  cylinders  were  conceded  to  be  dan- 
gerous to  the  person  engaged  in  feeding  the 
press,  bat  the  ijracticability  of  guarding  the 
machine  was  denied. 

Held,  in  the  absence  of  any  other  evidence, 
testimony  that  a  ^ard  was  applied  to  a  similar 
press  in  a  competing  factory,  seven  months  aft- 
er the  accident,  wnich  tended  to  lessen  the 
hasard,  was  insufSdent  to  prove  the  practica- 
bility of  applying  a  sufiScient  guard. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  {  961;    Dec.  Dig.  {  278.*] 

(Syllabos  by  the  Cpurt) 

Appeal  from  District  Court,  Hennepin 
Coonty;   Andrew  Holt,  Jadge. 

Action  by  Elizabeth  B.  Gloekner  against 
the  Hardwood  Manufactnring  Company.  Ver- 
dict for  plaintiff.  From  an  order  denying  a 
new  trial,  defendant  appeals.  New  trial 
granted. 

Brown,  Albert  &  Guesmer,  for  appellant 
Evans  &  Peterson  and  B.  F.  Hilton,  for  re- 
spondent 

LEWIS,  J.  Respondent  was  employed  in 
appellant's  factory  as  a  feeder  at  a  print- 
ing press,  and  was  engaged  in  feeding  flour 
.  sacks,  or  sheets,  into  the  press,  when  for 
some  reason  her  left  hand  was  caught  and 
cmshed  between  the  cylinders,  necessitating 
amputation  at  the  wrist  She  recovered  a 
verdict  of  $10,000,  based  upon  the  ground 
that  appellant  was  negligent  in  failing  to. 
maintain  a  proper  guard  in  front  of  the  cyl- 
inders. Appellant  concedes  there  was  no 
guard,  but  claims  there  was  no  evidence 
tending  to  show  that  appellant  was  guilty  of 
negligence  In  failing  to  maintain  a  guard, 
that  the  court  erred  in  admitting  certain  tes- 
timony with  reference  to  the  question  of 
such  negligence,  and  that  respondent  is  guilty 
of  contributory  negligence  and  assumed  the 
risks  connected  with  the  work. 

Appellant  company  iwas  engaged  In  the 
manufacture  of  bags,  and  several  different 
types  of  printing  presses  were  in  common 
use  for  the  purpose  of  printing  names,  etc., 
on  the  bags.  The  press  on  which  the  acci- 
dent occurred  was  one  of  tliree  cylinders,  so 
constructed  that  two  cylinders,  one  above 
the  other,  were  about  8  Inches  distant  from 
the  lower  end  of  the  feed  table.  The  length 
of  the  cylinders  was  3  feet  10  inches.  At- 
tached to  a  rod  running  across  the  lower  cyl- 


inder iwas  located  a  number  of  so-called 
"nippers,"  which  fell  as  the  cylinders  turned 
and  caught  the  material  fed  into  the  press. 
The  width  of  the  feed  bQard  was  4  feet  7% 
Inches,  constructed  on  a  slight  incline  to- 
ward the  cylinders.  A  metal  rod,  about  1 
inch  in  diameter,  was  located,  parallel  with 
the  cylinders,  at  about  2  inches  from  and 
21^  inches  above  the  lower  end  of  the  feed 
table,  and  4  inches  from  the  cylinder,  from 
which  were  suspended  two  guides.  The 
feeding  was  done  by  the  operator,  who  stood 
on  a  step,  2  feet  3  Inches  long  and  14  inches 
wide,  and  took  hold  of  the  bag,  or  sheet, 
with  the  left  hand,  and  by  the  use  of  a 
stick  with  a  point,  held  in  the  right  hand, 
moved  the  bag  down  to  the  guides,  when  it 
was  caught  by  the  nippers  and  passed  be- 
tween the  cylinders.  On  the  28th  of  May, 
1007,  respondent  was  feeding  sheets  30x34^^ 
Inches  in  size,  and  while  so  engaged,  as  she 
claims,  in  some  manner  lost  her  balance,  and 
in  the  attempt  to  save  herself,  got  her  hand 
between  the  cylinders.  She  had  -worked  on 
this  particular  machine  for  Ave  months,  and 
bad  been  thoroughly  Instructed  as  to  her 
duty  to  keep  her  hands  away  from  the  nip- 
pers. In  the  act  of  feeding  It  was  unneces- 
sary to  place  the  hand  below  a  point  3  In- 
ches from  the  end  of  the  table  and  5  inches 
from  the  nippers,  and  8  or  9  inches  from  the 
cylinders,  and  If  her  hand  was  caught  by  al- 
lowing it  to  come  In  contact  with  the  nip- 
pers while  engaged  in  feeding  in  the  usual 
way  she  would  probably  be  precluded  from 
recovering,  considering  her  experience  and 
the  explicit  Instructions  she  had  received. 
If,  however,  for  some  reason  not  owing  to 
negligence  on  her  part,  she  lost  her  balance 
while  engaged  In  feeding,  and  In  trying  to 
regain  It  Inadvertently  threw  her  hand  in 
contact  with  the  nippers  or  cylinders,  then  a 
different  question  would  be  presented.  Her 
account  of  the  manner  In  which  she  was 
caught  is  very  Indefinite  and  unsatisfactory, 
but  for  the  purposes  of  this  appeal  we  shall 
assume  that  her  negligence  and  the  question 
of  assumption  of  risk  were  for  the  Jury. 

The  only  evidence  Introduced  by  respond- 
ent in  support  of  the  charge  that  apx)ellant 
was  negligent  In  falling  to  construct  and 
maintain  a  suitable  guard  was  that  of  three 
pressmen  and  a  mechanic,  to  the  effect  that 
seven  months  after  the  accident  a  guard 
was  Invented  and  placed  on  a  similar  ma- 
chine by  the  Bbmls  Bros.  Bag  Company,  a 
competitor  of  appellants,  in  the  city  of  Min- 
neapolis. The  mechanic  testified  that  be  had 
been  called  upon  by  Mr.  Simmons,  the  super- 
intendent of  the  Bemis  Company,  to  work 
out  a  design  for  guarding  such  presses  at 
the  point  indicated;  that  he  bad  followed  di- 
rections and  constructed  a  guard,  but  had 
no  knowledge  as  to  whether  It  was  practi- 
cable In  the  operation  of  the  machine.  The 
three  pressmen  from  the  Bemis  Company 
testified  that  they  had  operated  presses  with 


toplo  and  secUon  NUMBBR  In  D«c.  A  Am.  Digs.  1907  to  <Ute,  A  Reporter  Indexai 


122M.W.-80 


Digitized  by  VjOOQ  l€ 


466 


122  NORTHWESTERN  REPORTER. 


(Minn. 


and  without  the  guard,  and  that  after  get* 
ting  accustomed  to  feeding  they  could  ac- 
complish about  the  same  amount  of  work 
as  without  It  Mr.  Simmons,  the  superin- 
tendent of  the  Bemis  Company,  testified  that 
he  had  suggested  to  the  mechanic  the  Idea  of 
making  such  a  guard ;  that  It  had  been  con- 
structed and  used  for  a  number  of  months 
on  that  type  of  press;  that  he  regarded  It 
as  a  private  matter  of  his  own  and  the 
company's,  yet  In  the  experimental  stage; 
but  It  was  his  opinion  the  guard  tended  to 
decrease  the  danger,  though  he  did  not  con- 
sider the  device  entirely  completed.  Re- 
spondent also  Introduced  In  evidence  a  model 
representing  the  guard,  and  It  was  used  dur- 
ing the  course  of  the  trial  for  purposes  of 
illustration.  All  this  class  of  evidence  was 
received  over  the  objection  of  appellant,  on 
the  ground  that  it  permitted  the  conduct  of 
appellant  on  the  Issues  of  negligence  to  be 
judged  by  experiments  and  improvements 
which  occurred  long  after  the  accident 

According  to  the  undisputed  evidence,  no 
form  of  guard  had  ever  been  manufactured 
or  used  successfully  on  such  presses,  and  It 
was  conceded  by  all  parties  that  this  partic- 
ular kind  of  press  was  dangerous,  and  ought 
to  be  guarded,  If  practicable.  The  real  ques- 
tion at  issue  was  whether,  at  or  prior  to 
the  time  of  the  accident,  It  was  practica- 
ble to  invent  and  adjust  a  device  which 
would  answer  the  purpose  of  protecting  the 
hands  of  operatives  from  getting  caught  by 
the  nippers  or  cylinders  and  at  the  same 
time  not  materially  interfere  with  the  pro- 
cess of  feeding.  When  a  machine,  or  place, 
defined  by  the  statute  (section  181S,  Rev. 
Laws  1905),  is  dangerous,  and  there  is  no 
question  about  the  practicability  of  applying 
a  guard,  then  the  omission  to  guard  consti- 
tutes negligence  per  se.  Chrlstlanson  y.  N. 
W.  Compo-Board  Oo.,  83  Minn.  25,  85  N.  W. 
826,  85  Am.  St  Rep.  440,  Davidson  v.  Flour 
City  Ornamental  Works,  119  Ni  W.  483,  and 
other  decisions  of  this  court  are  to  this  ef- 
fect But  the  burden  is  upon  the  party 
charging  negligence  to  prove,  not  only  a  dan- 
gerous condition,  but  also  that  it  was  feasi- 
ble to  guard.  The  practicability  of  guarding 
dangerous  machinery  depends  upon  the  char- 
acter of  the  machine,  its  history,  the  difficul- 
ty of  attaching  a  guard  without  Interfering 
with  its  efficiency,  and  upon  all  the  facts  and 
circumstances  surrounding  the  master  at  and 
prior  to  the  time  of  the  accident  There 
was  a  decided  dispute  as  to  the  effectiveness 
of  the  guard  used  by  the  Bemis  Company, 
not  only  on  account  of  its  interference  with 
the  feeding  process,  but  because  of  the  large 
opening  necessary  to  leave  for  the  bags  to 
pass  under,  and  the  ease  with  which  the 
guard  would  slip  up  in  case  the  feeder  should 
permit  his  hand  to  pass  under  it 

On  the  argument  respondent  assumed  that 
because  the  Bemis  Company  produced  a 
guard  which  to  some  extent  decreased  the 


hazard,  the  question  of  practicability  was 
settled  for  all  time,  and  that  the  evidence 
was  sufficient  to  prove  that  appellant  was 
guilty  of  negligence,  seven  months  before, 
in  failing  to  apply  such  a  guard.  The  trial 
court  in  Instructing  the  jury,  limited  this 
class  of  evidence  to  its  bearing  upon  the 
credibility  of  the  witnesses  and  the.  good 
faith  of  appellant  in  attempting  to  devise  a 
guard.  But  the  evidence  was  not  offered  by 
respondent  for  the  purpose  of  attacking  the 
credibility  of  appellant's  witnesses.  It  was 
offered  in  support  of  respondent's  case  in 
chief  to  establish  negligence  in  failing  to 
provide  a  guard.  It  may  be  conceded  that. 
when  a  subsequent  invention  is  so  simple 
in  character  that  it  might  have  occurred  to 
a  prudent  man  at  any  prior  time,  had  he 
g^ven  the  matter  attention,  then  evidence 
of  such  subsequent  invention  may  be  suffi- 
cient for  the  purpose  of  showing  the  practica- 
bility of  guarding  at  a  prior  time.  Such  Is 
not  this  case,  and  in  the  absence  of  any  oth- 
er evidence  the  subsequent  invention  and 
tests  were  not  sufficient  to  establish  negli- 
gence. Under  the  circumstances  the  court 
was  In  error  in  directing  the  jury  that  they 
might  find  from  the  evidence  of  the  subse- 
quent Invention  In  the  Bemis  factory  that 
appellant  was  guilty  of  negligence  in  failing 
to  provide  a  similar  guard,  and  the  court 
erred  in  extending  the  effect  of  that  evidence 
to  Its  bearing  on  the  credibility  and  good 
faith  of  appellant's  witnesses. 
New  trial  granted. 


MINNEAPOLIS  THRESHING  MACH.  CO. 

V.  GILBUTH  et  al. 
(Supreme  Court  of  Minnesota.    July  SO,  1909.) 

Bills  and  Notes  (t  342*)— Bora  Fidx  Pub- 

OHASEBS— Notice. 

Possession  by  the  payee  of  a  pr<»niB8ory 
note  indorsed  to  a  third  party  may  constitute 
prima  facie  evidence  of  title  in  the  payee,  in 
the  absence  of  circumstances  reasonably  tend- 
ing to  show  otherwise ;  but  where  the  name 
of  the  indorsee  has  been  erased,  and  the  evi- 
dence is  conclusive  that  the  erasure  was  a 
forgery,  and  the  claim  of  ownership  by  the 
payee  is  open  to  question,  then  it  is  the  duty 
of  prospective  jinrchasers  to  make  reasonable 
inquiry  concemmg  the  title. 

Held,  under  the  evidence  and  offer  of  proof, 
it  conclusively  appears  that  appellant  was  the 
owner  of  the  notes  in  suit  and  was  entitled  to 
recover. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  {  839;    Dec.  Dig.  S  842.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court  Lincoln  Coun- 
ty;  I.  M.  Olson,  Judga 

Action  by  the  Minneapolis  Threshing  Ma- 
chine Company  against  W.  O.  Gllruth  and 
others.  There  was  a  verdict  for  plaintiff,  and 
from  an  order  granting  a  new  trial.  It  ap- 
peals. Reversed  and  remanded,  with  direc- 
tion to  reinstate  the  verdict. 


•For  other  cues  see  uma  topic  and  soctlon  NUMBER  In  Dec.  t  Am.  Digs.  1907  to  date,  ft  Reporter  Indazat 


Digitized  by  VjOOQ  l€ 


Minn.) 


MINNEAPOLIS  THRESHING  MACH.  CX).  r.  QILRUTH. 


467 


J.  N.  Johnson  and  V.  B.  Seward,' for  appel- 
lant.    Flab  &  McKenzle,  for  respondents. 

LEWIS,  J.  Anderson  &  Swenson,  who 
were  appellant's  agents  for  the  sale  of  ma- 
chinery In  Lincoln  county,  became  Indebted 
to  appellant,  and  Indorsed  and  delivered  to 
appellant  two  certain  promissory  notes,  one 
for  $300  and  the  other  for  $150,  which  were 
executed  by  certain  fanners  in  tliat  locality 
to  Anderson  &  Swenson.  At  tUe  time  of  the 
delivery  of  the  notes  to  appellant's  agent, 
they  were  Indorsed  as  follows:  "Pay  to  the 
order  of  the  Minneapolis  T.  M.  Company. 
Anderson  &  Swenson,  by  0.  M.  Anderson." 
After  the  notes  bad  been  so  indorsed  and 
dellTered,  Mr.  Hlckey,  appellant's  agent, 
gave  them  to  Anderson  for  the  purpose  of  se- 
curing the  cash  on  them  from  the  Ivanhoe 
National  Bank  and  to  send  a  draft  for  the 
amount  to  the  company.  Anderson  testified 
that  be  took  the  notes  to  the  bank  and  told 
Mr.  Gilruth,  the  cashier,  that  Hlckey  want- 
ed the  cash  for  the  notes,  and  that  Ollrutta 
asked  tatan  to  leave  them  there  until  he  could 
see  wliat  could  be  done.  According  to  Ander- 
son's testimony  the  indorsement  remained  on 
tlie  back  of  the  notes  just  as  executed  by  him 
at  the  time  he  delivered  them  to  the  company. 
Gilmth,  on  the  other  hand,  testified  that  at 
the  time  the  notes  were  delivered  to  him  the 
words  "Pay  to  the  order  of  the  Minneapolis 
T.  BI.  Company"  were  crossed  out  in  red  ink, 
and  he  claimed  that  Anderson  presented  the 
notes  as  his  own,  and  that,  noticing  the  era- 
sure in  red  ink,  be  asked  Anderson  about 
it,  to  which  be  replied  that  the  machine 
company  had  proposed  to  take  these  notes, 
but  later  on  had  made  some  kind  of  a  settle- 
ment and  tnrned  the  notes  over  to  him,  and 
that  there  would  be  no  misunderstanding 
as  to  the  notes  being  his  (Anderson's)  own 
property.  The  notes  were  delivered  to  Gil- 
ruth about  the  2d  of  August,  1902,  and  were 
retained  in  bis  possession  until  August,  1003. 
At  that  time  the  First  National  Bank  of 
Lake  Benton,  claiming  to  own  the  notes, 
called  on  GUruth  and  demanded  them,  where- 
upon he  delivered  them  to  the  cashier  of  the 
Lake  Benton  bank,  which  bank  retained  them 
and  collected  the  proceeds.  This  action  was 
brought  against  the  Lake  Benton  bank  by 
the  machine  company  to  recover  the  amount 
of  the  proceeds.  A  verdict  was  returned  for 
appellant  for  the  full  amount  of  the  notes 
and  interest,  but  upon  motion  the  court  or- 
dered a  new  trial  upon  the  ground  that  the 
court  erred  in  ruling  out  an  offer  of  certain 
evidence. 

The  offer  was  In  the  following  words: 
"The  defendant  The  First  National  Bank  of 
Lake  Benton,  Minn.,  offers  to  prove  that  on 
August  IS,  1903,  the  defendant  C.  M.  Ander- 
son represented  and  told  Charles  E.  Lavesson, 
its  cashier,  that  he  was  the  owner  of  the 
notes  in  question  in  this  action,  and  then 
asked  said  Lavesson  to  take  said  notes  and 


give  him  credit  on  bis  Indebtedness  to  said 
bank ;  that  said  Anderson  was  then  indebted 
to  said  bank  in  the  sum  of  $1,881.09;  and 
that  Lavesson  promised  to  see  W.  O.  Gilmth 
and  talk  the  matter  over  with  him,  and  if 
he  thought  it  all  right  that  said  First  Nation- 
al Bank  would  take  said  notes  and  give  him 
said  credit;  that  said  Lavesson  saw  said 
Gilruth  and  the  next  day  thereafter,  and 
on  August  14th  took  said  notes  in  question 
and  gave  said  Anderson  credit  on  his  indebt- 
edness for  the  amount  of  said  notes,  $472.55 ; 
that  said  bank  then  believed  said  notes  be- 
longed to  said  Anderson,  and  so  took  the 
same  from  said  Anderson  in  good  faith,  re- 
lying on  the  statement  of  said  Anderson  that 
he  was  the  owner  of  the  same."  It  was  con- 
clusively established  at  the  trial  that  the 
notes  were  turned  over  to  appellant  company 
in  settlement  of  an  Indebtedness  owing  by 
Anderson  &  Swenson,  and  that  Hlckey,  the 
agent  of  the  company,  gave  the  notes  back  to 
Anderson,  without  any  erasure  of  the  indorse- 
ment, for  the  purpose  of  presenting  them  to 
the  bank  to  get  the  cash  and  send  it  to  the 
company.  There  was  a  controversy,  how- 
ever, between  Anderson  and  the  cashier  of 
the  Ivanhoe  National  Bank  as  to  whether 
the  name  of  the  company  was  erased  from  the 
indorsement  at  the  time  the  notes  were  deliv- 
ered to  the  cashier,  and  whether  Anderson 
represented  that  the  notes  were  his,  and 
not  the  company's. 

For  the  purpose  of  this  appeal  we  assume 
the  following  facts  to  have  been  conclusive- 
ly established  by  the  evidence:  That  the 
notes  were  the  property  of  the  company,  and 
that  Anderson  was  constituted  its  agent  for 
the  purpose  of  receiving  and  remitting  the 
cash  therefor.  We  will  also  assume  that  for 
his  own  purpose  Anderson  erased  the  name 
of  the  company  from  the  indorsement  and 
represented  to  Gilmth  that  the  notes  were 
originally  turned  over  to  the  company  in  set- 
tlement, but  that  he  had  made  another  set- 
tlement with  appellant,  received  back  the 
notes,  and  that  they  were  his  personal  prop- 
erty. It  will  also  be  conceded  that  the  facts 
stated  in  the  offer  of  evidence  were  true,  viz.; 
That  Anderson  told  the  cashier  of  the  Lake 
Benton  bank  that  he  was  the  owner  of  the 
notes  and  asked  him  to  give  him  credit  on 
his  personal  indebtedness  for  the  amount 
thereof;  that  the  cashier  promised  to  see 
Gilruth  and  talk  the  matter  over  with  him, 
and  if  he  thought  it  all  right  then  the 
Lake  Benton  bank  would  take  the  notes 
and  give  him  credit;  that  the  cashier  saw 
Gilruth  and  took  the  notes,  gave  credit  for 
them,  and  believed  they  belonged  to  Ander- 
son. 

In  our  opinion  the  offer  was  incomplete, 
and  in  itself  not  sufficient  to  justify  the 
Lake  Benton  bank  in  receiving  the  notes  as 
the  property  of  Anderson  without  making 
any  inquiry  as  to  the  rights  of  appellant. 
The  condition  of  the  indorsement  on  the  back 
of  the  notes  was  sufficient  to  challenge  the 


Digitized  by  LjOOQ  l€ 


468 


122  NORTHWESTERN  pEPORTER. 


(Minn. 


attention  of  the  bank  and  require  Ita  officers 
to  make  reasonable  inquiry  as  to  the  owner- 
ship thereof.  The  ofter  concedes  that  the 
cashier  considered  the  question  of  title  as 
being  doubtful,  and  reserved  the  right  to 
make  Inquiry  concerning  the  same  from  the 
then  holder  of  the  notes,  Oilruth,  the  cashier 
of  the  other  bank.  The  oCTer  does  not  dis- 
close the  information  secured  from  Qilmtb. 
According  to  Gllruth's  own  testimony,  his 
Buspiclon  had  been  aroused  as  to  the  title 
of  the  notes,  and  he  professed  to  accept 
Anderson's  explanation  that  the  notes  had  be- 
longed to  appellant,  but  bad  been  taken  back, 
and  no  controversy  would  arise  as  to  the 
ownership.  The  Liske  Benton  bank  was 
charged  with  full  knowledge  of  these  facts, 
and  stood  in  no  better  position  than  did 
Oilruth  as  to  the  title  of  the  notes.  So  far 
as  the  evidence  stands,  the  erasure  of  appel- 
lant's name  was  a  forgery,  and  did  not  have 
the  effect  of  changing  title  to  the  notes,  and 
the  Lake  Benton  bank  cannot  excuse  its  neg- 
lect to  inquire  into  the  origin  of  the  title  by 
the  mere  fact  that  Anderson  claimed  to  be 
the  owner  of  the  not^;  he  not  having  pos- 
session of  them.  For  some  purposes,  posses- 
sion by  the  payee  of  a  note  indorsed  specially 
by  him  to  a  third  person  is  prima  facie  evi- 
dence that  such  payee  is  the  owner  of  the 
note.  Kells  v.  Northwestern  Live  Stock  Ins. 
Co.,  64  Mhin.  390,  67  N.  W.  215,  71  N.  W.  5, 
68  Am.  St  Rep.  641.  But  that  rule  has  no 
application  to  a  case  where  the  Indorsement 
has  been  erased  under  circumstances  which 
throw  discredit  upon  the  claim  of  title  by  the 
payee.  We  consider  the  facts  available  to 
the  lAke  Benton  bank  sufficient  to  overcome 
the  evidence  of  title  which  might  be  in- 
ferred from  the  claim  of  ownership  by  An- 
derson. The  evidence  offered  was  incom- 
plete, and  if  it  had  been  accepted,  and  estab- 
lished by  positive  proof,  would  not  have  been 
sufficient  to  Justify  the  Jury  in  finding  that 
Anderson  was  the  owner  of  the  notes,  or  that 
the  bank  was  an  innocent  purchaser  without 
notice. 

Reversed  and  remanded,  with  direction  to 
the  trial  court  to  reinstate  the  verdict 


STATE  BANK  OF  BARNUM  t,  TOWN  OF 
GOODI/AN0. 

(Supreme  Court  of  Minnesota.    July  80,  1909.) 

1.  Towns  ((  37*)— Town  BoAsn— Puboeasb 
OF  Safe. 

Authority  to  purchase  a  safe  in  which  to 
preserve  the  books,  papers,  and  files  of  the 
town  is  conferred  on  town  boards,  under  the 
provisions  of  sections  651-654,  Rev.  Laws  1905. 
[Ed.  Note.— For  other  cases,  see  Towns,  Cent 
Dig.  170;  Dec.  Dig.  J  87.*] 

2.  Towns  (J  26*)— Town  Boabo— Mbxtinos— 

NOTICIB— NECESSrrY. 

Formal  notice  of  a  meeting  of  a  town  board 
is  not  a  prerequisite,  when  all  of  the  members 


of  the  board  are  present  at  the  session  and 
participate  in  the  proceedings. 

[Ed.  Note.— For  other  cases,  see  Towns,  Cent. 
Dig.  8  38;   Dec  Dig.  }  26.*] 

(Syllabus  by  the  0>nrt) 

Appeal  from  District  Court,  Carlton  Coun- 
ty; Homer  B.  Dlbell,  Judge. 

Action  by  the  State  Bank  of  Bamnm 
against  the  Town  of  Gtoodland.  Judgmsit 
for  plaintiff,  and  defendant  appeals  Af- 
firmed. 

J.  W.  Reynolds,  for  appellant  H.  S.  Lord, 
for  respondent 

LEWIS,  J.  Action  to  recover  the  purchase 
price  of  a  safe  alleged  to  have  been  sold  to 
appellant  by  respondent's  assignor.  The 
court  found  at  the  special  instance  and  re- 
quest of  a  majority  of  the  town  board  re- 
spondent's assignor  sold  and  delivered  the 
safe  to  the  board  for  the  town  at  the  pur- 
chase price  of  $126;  that  a  bill  for  the 
amonnt  was  allowed  by  the  board,  and  a 
town  order  on  the  treasurer  duly  issued; 
that  the  same  was  not  paid  for  want  of 
funds;  that  the  order  was  then  sold  and 
transferred  to  respondent  for  a  valuable  con- 
sideration, and  payment  demanded  and  re- 
fused; that  the  agreement  to  purchase  the 
safe  was  made  at  a  session  of  the  town 
board,  all  the  members  being  present  and 
that  all  signed  the  order  for  purchase;  that 
the  safe  was  accordingly  shipped  to  the  town 
clerk,  in  behalf  of  the  town,  who  used  It 
until  his  snccessor  was  qnalifled;  that  the 
electors  at  the  next  town  meeting,  and  at 
all  subsequent  town  meetlngB,  and  all  the 
subsequent  town  boards,  have  refused  to  ac- 
cept the  safe  from  their  predecessors  in  office, 
and  have  refused  to  appropriate  money  in 
payment  therefor,  and  have  attempted  there- 
by to  repudiate  the  purchase. 

Appellant  submits  the  case  upon  two  prop- 
ositions: (1)  "Is  a  contract  valid  and  en- 
forceable against  a  town,  which  is  made  by 
less  then  the  full  board,  at  neither  a  regular 
nor  a  duly  called  special  meeting?"  (2)  "Can 
a  town  board  bind  a  town  for  purchases 
made  without  the  previous  authorization  of  a 
town  meeting,  or  a  subsequent  ratification 
by  the  electors,  and  in  spite  of  their  r^a- 
diatlon  of  the  transaction?" 

In  support  of  the  first  proposition  appellant 
cites  Andrews  v.  School  Dist,  37  Minn.  96, 
33  N.  W.  217.  The  cases  are  not  parallel. 
In  the  Andrews  Case  two  of  the  school  trus- 
tees, without  any  meetings,  and  without  the 
presoice  or  co-operation  of  the  third  trustee, 
assumed  to  purchase  certain  school  supplies. 
In  the  present  case  the  court  found  that  the 
safe  was  ordered  at  a  session  of  the  town 
board  at  which  all  the  members  were  pres- 
ent, and  that  all  of  them  signed  the  order 
of  purchase.  Notice  would  have  added  noth- 
ing in  such  a  case,  and,  all  the  members  hav- 


•For  other  cu«i  see  sam«  topic  and  aectloa  NUMBBB  in  Dec.  *  Am.  Digs.  1307  to  data,  ft  Reportw  IndezM 


Digitized  by 


Google 


ailnn.) 


BROWN  ▼.  EINGDAHL. 


469 


ing  been  present  and  participated  In  the  pro- 
ceedings, notice  will  be  deemed  to  bave  been 
given  or  -waived.  The  evidence  sustains  the 
court's  finding,  and  the  point  is  not  well 
taken. 

As  to  the  second  proposition,  it  Is  sufficient 
to  call  attention  to  the  statute.  Section  661, 
Rey.  Laws  1905,  declares  that  town  boards 
■hall  have  charge  of  all  the  affairs  of  the 
town  not  by  law  committed  to  other  officers, 
and  In  certain  particulars  defines  Its  duties 
and  obligations.  Section  62S  specifically  sets 
forth  the  powers  of  the  electors  at  the  annual 
town  meetings.  When  a  town  board  assumes 
to  porform  those  duties  which  are  reserved 
to  the  electors.  Its  acts  are  at  least  voidable, 
nnless  ratified  by  the  electors.  Town  v. 
Ring,  09  Minn.  286,  109  N.  W.  248.  But  the 
statute  does  not  make  the  town  board  an 
absolute  figurehead.  The  supervisors  are 
oonstltnted  a  board,  having  charge  of  all  of 
the  affairs  of  the  town  not  committed  to  oth- 
er officers  and  not  reserved  to  the  electors. 
The  power  thus  conferred  on  the  board  may 
not  be  extensive;  but  it  embraces  authority 
to  perform  the  incidental,  necessary  acts  to 
accomplish  the  function  of  township  govern- 
ment In  the  performance  of  Its  duties  as  a 
board,  it  is  necessary  to  have  books  of  record, 
paper,  ink,  and  pens,  as  well  as  suitable  fur- 
niture. The  board  is  custodian  of  valuable 
papers,  maps,  and  files,  and  a  proper  place 
to  ke^  them  may  fairly  be  treated  as  one  of 
the  necessities  connected  with  the  proper 
performance  of  its  duties. 

AStrmwL 


BROWN  T.  JUN6DAHL  et  aL,  Board  of 

Control. 
(Supreme  Court  of  Minnesota.    July  23.  1909.) 

1.  Taxation  (|  88*)— Pobpobks. 

EM,  following  Fleckten  v.  Liamberton  et 
al.,  69  Minn.  187,  72  N.  W.  65,  suitalning  the 
constltntlonality  of  chapter  2,  p.  6,  Oen.  Laws 
1883,  providing  for  the  constmction  of  the  new 
State  Capitol,  that  chapter  27,  p.  29,  Gen. 
Laws  19(%),  providing  for  the  constmction  of  a 
new  state's  prison  at  Stillwater,  is  a  valid  en- 
a>'lment. 

[Ed.   Note.— For  other  eases,  see   Taxation, 
Dec.  Dig.  {  8&*] 

2.  States    ({$    116,    187*)  —  Limitation    or 

AHOUNT  or  INOEBTBDNESS. 

The  certificates  of  Indebtedness  thereby  au- 
thorized to  be  issued  do  not  create  obligations  of 
the  state,  independent  of  the  fund  appropriated 
and  provided  for  by  the  act,  and  are  not,  there- 
fore, in  violation  of  section  5  of  article  9  of  the 
Constitution. 

[Ed.  Note.— For  other  cases,  see  States,  Dec. 
Dig.  U  115,  187.*] 

8.  LnoTATioif  or  Amount  or  Inoebtednksb. 
The  certificates  are  payable  out  of  the 
fund  so  appropriated,  and  are  mere  evidence  of 
the  right  of  the  holder  to  demand  and  receive 
the  fnnd  when  collected  and  received  by  the 
State  Treasurer  from  the  tax  levy  directed  to 
be  made  by  the  act. 

Lewi-r  J.,  dissenting. 

(Syllabus  by  the  Court) 


Appeal  from  District  Court,  Ramsey  Oonn- 
ty;  Olln  B.  Lewis,  Judge. 

Action  by  Wilson  C.  Brown  against  Peter 
M.  Rlngdahl  and  others,  as  members  of  the 
Board  of  ControL  From  an  order  sustain- 
ing a  general  demurrer  to  the  complaint 
plaintiff  appeals.    Affirmed. 

Stringer  &  Seymour,  for  app^ant  George 
T.  Simpson,  Atty.  Gen.,  Lyndon  A.  Smith, 
Asst.  Atty.  (3en.,  and  cieo.  H.  Sullivan,  for 
respondents. 

BROWN,  J.  Action  by  a  taxpayer  to  re- 
strain and  enjoin  the  State  Board  of  (Control 
from  issuing  or  negotiating  certificates  of 
Indebtedness  as  authorized  by  chapter  27, 
p.  29,  Gen.  Laws  1909,  providing  for  the  con- 
struction of  a  new  state's  prison  at  Still- 
water. A  general  demurrer  to  the  complaint 
was  sustained,  and  plaintiff  appealed. 

The  action  challenges  the  constitutionality 
of  the  statute  referred  to.  Section  1  of  the 
act  authorizes,  empowers,  and  directs  the 
Board  of  Control  to  complete  the  construc- 
tion of  a  new  state's  prison,  on  a  site  ac- 
quired for  the  purpose  under  Gen.  liBws 
1906,  p.  638,  c.  SS7,  {  19,  and  according  to 
plans  and  specifications  approved  by  the 
prison  warden  and  the  Board  of  Control,  and 
to  equip  it  with  all  necessary  facilities  for 
carrying  on  therein  the  industrial  work  au- 
thorized by  law,  and  so  as  to  provide  for 
the  profitable  employment  of  convicts  con- 
fined in  the  prison,  at  a  cost  not  exceeding 
$2,250,000.  Section  2,  for  the  purpose  of 
raising  the  funds  thus  appropriated,  directs 
the  State  Auditor  to  levy  and  collect.  In 
the  same  manner  as  other  taxes  are  levied 
and  collected,  for  the  year  1909  and  each 
succeeding  year  for  nine  years,  a  tax,  suf- 
ficient to  produce  for  each  of  said  years  the 
sum  of  $225,000  on  all  the  taxable  property 
of  the  state,  and  credit  the  same  to  the 
Board  of  Control  as  a  separate  fund,  known 
as  the  "Prison  Building  Fund,"  "and  said 
amounts  are  hereby  appropriated  for  the 
purpose  aforesaid  for  each  of  said  years." 
This  section  further  authorizes  and  em- 
powers the  Board  of  Control,  If  deemed 
necessary  to  carry  forward  the  work  of  con- 
struction, to  issue  and  sell,  as  funds  are 
needed  for  the  purpose,  certificates  of  indebt- 
edness, to  be  known  and  classed  as  "Minne- 
sota Prison  Certificates  of  Indebtedness," 
bearing  Interest  at  a  rate  not  exceeding  4 
per  cent  per  annum.  Section  3  requires  the 
work  of  construction  to  be  expeditious  and 
that  the  contract  be  awarded  to  the  lowest 
bidder. 

The  contention  of  plaintiff  Is  that  this  act 
contravenes  and  violates  sections  2,  S,  6,  7, 
and  8  of  article  9  of  the  state  Constitution,, 
and  is  consequently  void.  So  far  as  mate- 
rial, section  2  provides  for  an  annual  tax 
levy  for  ordinary  expenses  of  the  state  and* 
such  deficiencies  as  may  from  time  to  time 


•Tor  «th*r  cases  le*  same  topic  and  uctton  NUMBER  la  Deo.  ft  Am.  Disc  1807  to  <Ut«,  *  Reporter  IndcxM 


Digitized  by  VjOOQ  IC 


470 


122  NORTHWBSTBEN  RBPOBTEB. 


(Minn. 


arise.  Section  6  prorldes  that  for  purposes 
of  extraordinary  expenditures  the  state  may 
contract  public  debts,  "but  such  debts  shall 
never  In  the  aggregate  exceed  $250,000." 
Section  6  provides  that  debts  authorized  to 
be  contracted  by  section  5  shall  be  in  the 
form  of  state  bonds  of  not  less  than  $500 
each,  payable  within  10  years.  Section  7 
provides  that  the  state  shall  never  contract 
any  public  debt,  unless  In  the  time  of  war, 
to  repel  Invasion  or  suppress  insurrection, 
except  as  permitted  by  sections  5  and  6. 
Section  8  provides  for  the  expenditure  of 
money  arising  from  an  Issue  of  bonds  for 
the  purposes  only  of  the  act  of  their  author- 
ization. 

Counsel  for  plaintUI,  in  support  of  the  con- 
tention that  the  act  is  unconstitutional,  pre- 
sented his  case  with  so  much  earnestness 
and  ability  as  to  dispel  entirely  the  idea 
that  the  suit  is  a  friendly  one,  brought  to 
bring  about  a  particular  result,  and  to  cause 
the  members  of  the  court  seriously  to  re- 
flect before  announcing  a  conclusion  adverse 
to  his  position  on  the  merits  of  the  question. 
But,  whatever  might  be  the  view  of  the  court 
as  now  constituted,  were  the  question  a  new 
one,  a  majority  of  the  present  members  are 
of  opinion  that  it  was  settled  adversely  to 
plaintifTs  contention  by  the  decision  In 
Fleckten  v.  Lamberton,  69  Minn.  187,  72 
N.  W.  65,  which  we  follow  and  apply.  That 
case  involved  the  constitutionality  of  chap- 
ter 2,  p.  6,  Gen.  Laws  1893,  provlamg  for 
the  construction  of  the  new  State  Capitol. 
The  act  under  consideration  is  conceded  by 
counsel  for  plaintiff,  for  all  practical  pur- 
poses, identical  with  the  one  there  held 
valid,  except  that  this  act  provides  for  the 
issuance  of  certificates  of  indebtedness  in 
anticipation  of  the  collection  of  the  tax 
thereby  directed  to  be  levied,  to  be  nego- 
tiated as  therein  provided,  whereas  the  State 
Capitol  act  contained  no  such  provision. 
However,  by  chapter  96,  p.  118,  Oen.  Laws 
1897,  similar  certificates  were  provided  for, 
and  were  Issued  and  negotiated  by  the  Capi- 
tol Commission,  and  are  now  outstanding. 
Though  this  act  was  not  referred  to  in  the 
Lamberton  decision,  it  was  then,  and  for 
some  time  prior  thereto  had  been,  in  force. 
It  was  passed  by  the  Legislature  on  April  8, 
1897,  and  the  decision  in  the  Lamberton  Case 
was  filed  July  1,  1897. 

Counsel  for  plaintiff  differentiates  the 
Lamberton  Case  by  the  fact  that  no  certifi- 
cates of  indebtedness  were  there  authorized 
to  be  issued,  and  earnestly  insists  that  this 
feature  of  the  act  under  consideration  ren- 
ders it  wholly  void.  We  are  unable  to  con- 
cur in  this  dalm.  The  certificates  In  and 
of  themselves  create  no  indebtedness  against 
the  state.  On  the  contrary,  they  are  mere 
evidence  of  the  holder's  right  to  demand  and 
receive  "from  the  State  Treasurer  the  pro- 
ceeds of  the  tax  authorized  by  the  act  to  be 
levied  and  collected,  and  known  and  classi- 
fied as  the  'Prison  Building  Fund.' "    Fairly 


construed,  the  act  contemplates  their  pay- 
ment from  this  fund  exclusively,  and  they 
are  not  general  obligations  of  the  state. 
Whatever  indebtedness,  if  any,  was  created 
by  this  act.  Is,  within  the  Lamberton  Case, 
found  In  the  provisions  thereof  appropriat- 
ing $2,250,000  for  the  construction  of  the 
new  prison  and  the  levy  of  a  tax  extending 
over  a  period  of  nine  years  to  produce  the 
same,  and  not  by  the  Issuance  of  certificates 
of  Indebtedness  evidencing  the  right  of  the 
holders  thereof  to  the  fund  when  collected. 
If  the  certificates  could  be  construed  as 
creating  an  indebtedness  against  the  state 
payable  from  the  general  revenue  fund,  a 
different  question  would  be  presented.  But 
they  are  not.  They  are  to  be  Issued  In  an- 
ticipation of  funds  provided  for  and  appro- 
priated, rightfully  under  the  Lamberton 
Case,  and  are  valid  only  as  respects  that 
fund  when  paid  Into  the  state  treasury. 

We  need  not  stop  to  consider  whether  a 
subsequent  Legislature  could  rightfully  re- 
peal this  act,  and  thus  leave  outstanding  cer- 
tificates issued  thereunder,  and  so  impair  the 
faith  and  credit  of  the  state,  nor  the  extent 
to  which  the  Legislature  might,  if  so  dis- 
posed, go  in  making  appropriations  of  this 
kind.  No  danger  from  this  source  is  to  be 
apprehended.  At  any  rate,  the  Legislature, 
when  acting  within  constitutional  limits.  Is 
answerable  to  the  people,  and  not  to  the 
courts. 

Our  conclusion,  therefore.  Is  that  the  valid- 
ity of  this  act  is  sustained  by  the  Lamberton 
Case,  and  we  follow  and  apply  it. 

Order  affirmed. 

LEWIS,  J.  I  dissent  Section  1,  c.  27,  p.  29, 
Gen.  Laws  1909,  authorizes  and  directs  the 
State  Board  of  Control  to  complete  the  con- 
struction of  the  new  state  prison  at  Still- 
water at  a  cost  not  exceeding  $2,250,000. 
Section  2  reads:  "To  provide  the  funds 
necessary  for  what  Is  authorized  In  section 
one  (1)  of  this  act,  the  State  Auditor  Is  here- 
by autiiorlzed  and  directed  to  levy  and  collect. 
In  the  same  manner  as  other  state  taxes  are 
levied  and  collected,  for  the  year  1909,  and  for 
each  and  every  of  the  next  succeeding  nine  (9) 
years,  two  hundred  and  twenty-five  thousand 
dollars  ($225,000),  and  the  interest  thereon, 
and  a  tax  levy  sufficient  to  produce  for  each 
of  said  years  that  amount  of  money  shall  be 
levied  on  all  of  the  taxable  property  of  this 
state,  and  credited  to  the  Board  of  Con- 
trol of  state  institutions  In  a  separate  fund 
for  said  purposes,  to  be  known  as  the  'Prison 
Building  Fund,'  and  said  amounts  are  hereby 
appropriated  for  the  purposes  aforesaid  for 
each  of  said  years,  and  pending  the  said 
levy  and  collection  of  the  said  taxes,  the 
said  Board  of  Control  is  hereby  authorized 
and  empowered,  if  said  Board  of  Control 
deems  It  necessary  or  desirable  so  to  do,  to 
issue  and  sell,  as  funds  are  needed  for  con- 
struction purposes,  certificates  of  indebted- 
ness to  be  known  and  classed  as  'Minnesota 


Digitized  by  VjOOQ  l€ 


Minn.) 


BROWN  ▼.  RINGDAHL. 


471 


Prison  Certlflcates  of  Indebtednees,'  at  not 
less  than  par  value  thereof,  earning  Interest 
after  the  issuance  and  sale  thereof,  payable 
annually,  at  a  rate  of  not  greater  than 
four  (4)  per  cent,  per  annum.  In  such  form 
and  on  such  terms  and  conditions  as  the  said 
Board  of 'Control  may  determine,  in  an  ag- 
gregate amount  not  exceeding  the  amount 
herein  authorized  and  directed  to  be  raised 
by  taxation;  provided  that  said  certificates 
shall  be  issued  in  denominations  of  not  less 
than  five  hundred  ($500)  dollars,  and  pro- 
vided that  the  first  right  of  investment  there- 
in Is  reserved  to  this  state,  and  provided 
that  such  of  said  certificates  as  are  not  pur- 
chased by  this  state  shall,  in  such  way  and 
manner  as  said  Board  of  Control  may  deem 
best,  be  offered  to  the  general  public  for  in- 
vestment" Section  3  requires  that  the  com- 
pletion of  the  construction  of  the  prison  be 
done  as  expeditiously  as  possible,  and  under 
contract  duly  made  and  entered  Into  with 
competent  and  responsible  contractors  and 
builders,  who  are  lowest  bidders  therefor. 

In  pursuance  of  this  act,  during  the  month 
of  AprU,  1909,  the  State  Board  of  Control 
advertised  for  proposals  for  the  purchase 
of  Minnesota  state  prison  certlflcates  of  in- 
debtedness to  the  amount  of  $550,000  in  de- 
nominations of  $600  each,  to  be  dated  June 
1,  1909,  and  payable  as  follows:  $225,000 
August  1,  1913;  $225,000  August  1, 1914;  and 
$110,000  August  1,  1915.  At  the  same  time  the 
board  made  It  known  that  it  would  receive 
bids  for  the  purchase  of  Minnesota  state 
prison  certificates  of  indebtedness  aggregat- 
ing $1,675,000,  to  be  Issued  from  time  to  time 
in  such  amounts  as  might  be  required  for 
construction  purposes,  covering  a  period  of 
not  less  than  three  nor  more  than  four  years, 
payable  at  the  rate  of  $225,000  per  aimum, 
exclusive  of  Interest,  beginning  August  1, 
1913.  The  Capital  National  Bank  of  St.  Paul 
having  offered  par  and  accrued  Interest  for 
the  $560,000  Minnesota  state  prison  certif- 
icates above  mentioned,  this  restraining  ac- 
tion was  commenced  against  the  board  in 
order  to  secure  the  sanction  of  the  court  to 
the  validity  of  the  act. 

I  am  decidedly  of  the  opinion  that  chapter 
27,  p.  29,  Gen.  Laws  1909,  is  In  conflict  with 
sections  2,  6,  6,  7,  and  8  of  article  9  of  the 
state  Constitution.  The  act  authorizes  and 
directs  the  State  Auditor  to  levy  and  collect 
annually  as  other  taxes  are  levied  and  collect- 
ed, for  nine  years  commencing  with  the  year 
1909,  $225,000  and  Interest  thereon.  This  tax 
is  to  be  levied  upon  all  the  taxable  property 
of  the  state  and  credited  to  the  Board  of  Con- 
trol In  a  separate  fund  known  as  the  ''Prison 
Building  Fund."  The  majority  of  the  court 
base  their  opinion  on  the  decision  In  Fleckten 
V.  Lamberton,  69  Minn.  187,  72  N.  W.  65,  and 
It  becomes  important  to  determine  exactly 
what  was  decided  in  that  case. 

The  conrt  there  had  under  consideration 
the  constitutionality  of  chapter  2,  p.  6,  Gen. 
Laws  1893,  the  material  part  of  which  reads : 


"There  shall  be  transferred  in  each  of  the 
years  1893  and  1894  from  the  general  fund 
to  the  credit  of  the  Board  of  State  Capitol 
Commissioners  the  sum  of  five  thousand  dol- 
lars, and  in  each  succeeding  year  after  the 
year  1894  until  the  completion  of  said  Capitol 
Building,  not  exceeding  ten  years,  a  sum 
equal  to  the  proceeds  of  a  levy  of  two-tenths 
of  a  mill  upon  the  assessed  valuation  of  the 
state,  for  the  purchase  of  a  site,  or  part 
thereof,  and  the  erection  and  completion  of 
a  new  Capitol  Building,  In  accordance  with 
the  terms  and  provisions  of  this  act;  pro- 
vided that  the  total  amount  so  transferred 
shall  not  exceed  the  sum  of  two  million  dol- 
lars." The  court  held  that  the  appropriations 
provided  by  the  act  were  from  the  surplus 
revenue  in  the  state  treasury  and  from  such 
surplus  as  might  exist  during  each  of  the 
future  years  named;  that  the  constitutional 
provisions  did  not  prevent  the  application  of 
the  surplus  to  such  a  purpose  so  long  as 
such  appropriations  did  not  infringe  upon  the 
amount  available  for  the  ordinary  current 
affairs  of  the  government.  The  court  held 
that  the  Legislature  might  appropriate  the 
prospective  surplus  in  the  treasury  for  a 
given  number  of  years  for  the  purpose  of 
building  a  State  Capitol ;  but  it  was  not  held 
that  the  Legislature  might  Incumber  the  fu- 
ture taxable  property  of  the  state  by  a  com- 
pulsory future  levy.  Observe  the  reading  of 
the  act  of  1893.  It  transferred  from  the  gen- 
eral fund  to  the  credit  of  the  State  Capitol 
Commissioners  a  sum  equal  to  the  proceeds 
of  a  levy  of  two-tenths  of  a  mill,  provided 
that  amount  of  surplus  be  in  the  general 
fund. 

The  appropriation  was  predicated  upon 
the  presumption  that  a  surplus  sufficient 
would  exist  when  the  time  arrived,  but 
made  no  provision  to  create  the  surplus.  So 
considered,  there  was  no  present  debt  In- 
curred, and  no  mortgaging  of  the  future  as- 
sets of  the  state.  Chapter  27,  p.  29,  Gen. 
Laws  1909,  was  constructed  upon  an  entire- 
ly different  principle.  It  does  not  appro- 
priate from  the  general  fund  such  surplus  as 
may  be  found  when  the  time  arrives,  but 
imposes  on  the  State  Auditor  the  duty  to 
make  a  levy  upon  the  taxable  property  of 
the  state  for  the  speciflc  purpose  of  creating 
a  fund  which  shall  be  set  aside  to  the  credit 
of  the  State  Board  of  Control  for  the  erec- 
tion of  the  prison.  In  Fleckten  v.  Lamber- 
ton the  court  was  dealing  with  no  such  prop- 
osition. The  gist  of  that  decision  is  con- 
tained in  the  syllabus,  and  Is  as  follows: 
"The  Constitution  does  not  prohibit  the  Leg- 
islature from  appropriating  the  surplus  reve- 
nues in  the  state  treasury,  or  a  part  of  the 
revenues  collected  each  year,  for  the  erec- 
tion of  a  State  Capitol,  so  long  as  sufficient 
public  funds  applicable  thereto  are  left  to 
defray  the  current  ordinary  expenses  of  the 
state  government.  •  *  ♦ "  Referring  In 
the  opinion  to  the  constitutional  provisions, 


Digitized  by  VjOOQ  l€ 


472 


122  NORTHWESTEBN  RBPORTEB. 


(Wlwn- 


the  court  say:  *mie  object  is  to  preTent  the 
Legislature  from  mortgaging  the  future  at 
all  for  ordinary  expenses,  and  to  prevent  it 
from  mortgaging  the  future  for  extraordi- 
nary expenses,  except  to  a  limited  extent  and 
In  a  restricted  manner."  The  constitutional- 
ity of  the  act  of  1883  was  attaciied  by  the 
plaintlfF  in  that  case  on  the  ground  that  the 
building  of  a  new  State  Capitol  was  in  all 
respects  an  extraordinary  expenditure  and 
could  only  be  provided  for  by  the  issue  of 
bonds.  In  reply  to  this  proposition  the  At- 
torney General  claimed  that  the  act  did  not 
violate  any  of  the  provisions  of  the  Consti- 
tution, because  the  building  of  a  State  Cap- 
itol must  be  considered  as  part  of  the  ordi- 
nary current  expenses  of  the  government, 
and  the  act  dealt  only  with  funds  in  the 
state  treasury  belonging  to  the  general  reve- 
nues. From  the  argument  of  counsel  and 
from  the  carefully  guarded  language  of  the 
court  in  that  decision,  It  is  clear  that  the 
court  did  not  consider  and  did  not  hold  that 
under  the  Constitution  the  Legislature  had 
authority  to  compel  the  levy  of  a  tax  during 
future  years. 

I  concede  that  the  power  of  the  Legisla- 
ture is  not  limited  by  the  Constitution  in  the 
amount  of  money  It  may  authorize  for  the 
running  of  the  government;  but  it  cannot  tie 
the  hands  of  succeeding  Legislatures.  If  the 
building  of  a  new  prison  was  deemed  nec- 
essary to  the  proper  administration  of  the 
government,  the  Legislature  bad  authority 
under  the  Constitution  to  provide  the  whole 
or  any  part  of  the  necessary  funds  in  the 
annual  statement  of  taxes  until  the  next 
Legislature  convened;  and,  if  the  members 
of  that  body  were  of  opinion  that  the  whole 
amount  required  was  too  great  a  burden  to 
be  immediately  borne  by  the  taxable  prop- 
erty, they  were  at  liberty  to  build  so  far 
as  they  deemed  wise.  The  unmlstaltable 
meaning  of  the  Constitution  is  that  the  state 
must  pay  as  it  goes,  and  when  the  call  for 
money  is  so  heavy  or  extraordinary  as  to 
maike  It  Inadvisable  to  raise  the  entire 
amount  by  an  immediate  levy  then  the  tax- 
able property  of  the  future  can  be  burden- 
ed in  one  way  only,  and  that  by  the  issue  of 
bonds  not  to  exceed  $250,000.  By  placing 
its  seal  of  approval  upon  chapter  27,  p.  29, 
Oen.  Laws  1909,  the  State  Auditor  is  direct- 


ed to  collect  from  the  taxable  property  of 
the  state  the  sum  of  $225,000  annually  for 
the  period  of  nine  years,  and  he  must  per- 
form his  duty.  The  debt  has  already  been 
Incurred  and  the  taxpayers  may  now  look 
forward  with  positive  assurance  that  tho 
debt  must  be  paid. 

FYirther,  the  present  case  differs  from 
Fleckten  r.  Lamberton  in  this:  The  act  of 
1893  did  not  provide  for  the  Issuance  and 
sale  of  certificates  of  indebtedness,  and  the 
effect  of  such  an  Issue  and  the  sale  thereof 
was  not  considered;  whereas.  In  this  case, 
that  additional  question  is  directly  involved. 
A  majority  of  the  court  hold  that  the  certif- 
icates do  not  create  obligations  of  the  state 
independent  of  the  fund  provided  by  the 
act,  and  that  the  holder  thereof  merely  has 
the  right  to  receive  his  money  upon  maturi- 
ty out  of  the  special  funds  when  collected 
and  received  by  the  State  Treasurer.  I  am 
unable  to  perceive  the  distinction.  To  my 
mind,  the  certificates  constitute  obligations 
of  the  state,  wliether  general  obligations  or 
limited  to  the  special  fund.  In  either  event, 
the  debt  must  be  paid  by  the  taxable  prop- 
erty of  the  state. 

Again,  assuming  that  the  Legislature  may 
direct  the  future  levy  of  a  tax  to  raise  a 
special  fund,  to  be  available  at  the  time  the 
money  is  collected,  the  majority  hold  that 
the  Legislature  may  provide  for  the  present 
capitalization  of  such  future  conditions  by 
issuing  certificates  of  indebtedness  to  draw 
interest  to  be  sold  to  the  public  upon  the 
assurance  that  the  credit  of  the  state  is  be- 
hind them,  and  that  the  money  will  be  forth- 
coming when  the  certificates  mature.  By 
this  arrangement  the  entire  amount  of  the 
tax  levy  is  anticipated,  and  the  amount  is 
available  for  present  purposes.  Thus  the 
evidence  of  a  present  indebtedness  is  fur- 
nished which  may  l>e  received  with  confi- 
dence in  the  commercial  world. 

The  Constitution  places  the  limit  at  $250,- 
000,  above  which  no  debt  shall  be  incurred 
for  future  taxpayers  to  meet  The  amount 
may  be  too  small  for  a  great  and  growing 
state;  but  the  people  so  provided,  and  there 
is  a  proper  way  to  change  it  In  my  opin- 
ion, chapter  27,  p.  29,  Oen.  Laws  1909,  opens 
wide  the  door  and  renders  the  Constltntloo 
meaningless. 


Digitized  by  LjOOQIC 


N«fe4 


BTATB  T.  JUNEIN. 


473 


HIGHIOAN  CENT.  R.  00.  t.  MILLER  et  al. 

(Snpreme  Gonrt  of  Michigan.    Anr  17,  1000.) 

BiaineNT  Domain  (I  264*)— Pbooeedinos  to 
Taki  Peopkbtt— Rbvikw  or  Cebt^obabi— 
fskmatttbc  issuahok. 

Writ  of  certiorari  to  reriew  a  determina- 
tion OTermling  preliminary  objections  to  a  con- 
demnation proceeding,  and  ordering  a  jury  to 
determine  the  necessity  of  taking,  and  to  fix  tlie 
damages,  will  be  dismissed  as  improTidently 
granted;  no  good  reason  appearing  for  inter- 
fering at  sucli  stage  of  tlie  proceeding. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Dec.  Dig.  {  264.*] 

Clondemnation  proceeding  by  the  Michigan 
Central  Railroad  Company  against  Edwin 
Miller  and  otliers.  Writ  of  certiorari  was 
allowed  said  'Miller.    Writ  dismissed. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McALVAT,  and  BROOKE,  JJ. 

Gray  &  Gray,  for  the  motion.  Albert  Mc- 
Clatch^,  opfOBeA. 

OSTRANDER,  J.  A  writ  of  certiorari  was 
allowed  to  review  the  determination  of  the 
circuit  court  for  the  county  of  Wayne  In  con- 
demnation proceedings  overruling  certain 
preliminary  objections  to  the  proceedings, 
and  ordering  a  jury  to  determine  the  neces- 
sity for  taking  certain  property  and  to  fix 
the  damages  to  be  paid  therefor.  A  motion 
is  now  made  to  dismiss  the  writ  upon  the 
grounds:  (1)  That  It  was  prematurely  la- 
sned;  (2)  because  the  proceedings  are  not 
reviewable  on  certiorari.  Upon  an  examina- 
tion of  the  application  made  for  the  writ  we 
are  agreed  that  no  good  reason  appears  for 
interfering,  at  this  stage  of  the  proceedings 
by  certiorari,  with  the  action  of  the  circuit 
court 

The  writ  will  be  dismissed  as  Improvldent- 
ly  granted,  without  prejudice  to  either  party. 


STATE  ex  rel.  RAOAN  ▼.  JUNKIN,  Secretary 
of  State.    (No.  16,274.) 

(Supreme  Coart  of  Nebraska.  Ang.  18,  1000. 
Dissenting  Opinion,  Aag.  18  and  28,  1000.) 

1.  CoNSTTrnnoNAi.  Law  (§{  00,  01»)— Fbbe- 
DOK  OF  Speech— BiOHT  of  Asseublt  and 
Petition. 

The  legislative  enactment  in  sections  1  and 
10,  c.  63,  Sess.  Laws  1000,  that  candidates  for 
Jndicial  and  edacational  offices  shall  not  be 
"nominated,  indorsed,  recommended,  censured, 
criticised  or  referred  to  in  any  manner  by  any 
political  party,  or  any  political  convention  or 
primary,  or  at  any  primary  election,"  is  a  vlo- 
wtion  of  section  5  of  the  Bill  of  Rights,  declar- 
ing that:  "Every  person  may  freely  speak, 
write,  and  pnblish  on  all  subjects,  being  re- 
sponsible for  the  abase  of  that  liberty ;  and  in 
all  trials  for  libel,  both  civil  and  criminal,  the 
truth  when  published  witli  good  motives,  and 
for  justifiable  ends,  shall  be  a  sufficient  defense" 
—end  of  section  10  of  the  Bill  of  Rights,  de- 
claring tliat:  "The  right  of  the  people,  peace- 
ably,  to  assemble  to  consult  for  the  common 


food,  and  to  petition  the  government,  or  any 
epartment  thereof,  shall  never  be  abridged." 
[Ed.  Note. — For  other  cases,  see  Constitution- 
al Law,  Cent.  Dig.  {{  172,  173;    Dec.  Dig.  {! 
00,  01.  •] 

2.  CONSTTTUTIONAL    LaW     (|    01*)— RIGHT    OF 

AssEUBiiT  —  "Assemblaqb"  —  PounoAL 

Convention. 

A  political  convention  is  an  "assemblage" 
within  the  meaning  of  the  constitutional  provi- 
sion that  the  right  of  the  people  to  assemble  to 
consult  for  the  common  good  shall  never  b« 
abridged. 

[Ed.  Note. — For  other  cases,  see  Constitution- 
al Law,  Dea  Dig.  {  01.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  1,  pp.  544,  545.] 

3.  Elections    (8    120*)   —   Constttutionai. 

GlTABANTIES— EiLECTIVE  FBANCHIBE. 

In  prescribing  a  form  of  official  ballot  which 
limits  toe  printed  names  of  candidates  for  judi- 
cial and  educational  offices  to  nominees  by  pe- 
titions containing  6,000  names  each  and  in  de- 
priving all  electors  except  600  in  each  county 
of  the  right  to  take  part  in  nominating  a  par- 
ticular candidate,  chapter  53,  p.  256,  Sess.  Laws 
1000,  violates  section  22  of  the  Bill  of  Rights, 
declaring  that  "all  elections  shall  be  free,  and 
there  shall  l>e  no  hindrance  or  imiiediment  to 
the  right  of  a  qualified  voter  to  exercise  the  elec- 
tive franchise.** 

[Ed.  Note.— For  other  cases,  see  Elections, 
Dec.  Dig.  (  120.*] 

4.  Statutes  (J   64*)— Invaliditt  in  Past- 
Effect. 

Where  it  appears  on  the  face  of  a  legisla- 
tive act  that  an  indncement  for  its  passage  was 
a  void  provision,  the  entire  act  falls. 

[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent.  Dig.  H  68-66 ;  Dec.  Dig.  $  64.*] 

5.  Statutes  (§  64*)— VALin  in  Pabt  and  In- 
valid IN  Pabt— Effect. 

Where  valid  and  invalid  parts  of  a  legisla- 
tive act  are  so  intermingled  that  they  cannot 
be  separated  in  such  a  manner  as  to  leave  an 
enforceable  statute  expressing  the  legislative 
will,  no  part  of  the  enactment  can  be  enforced. 
[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent.  Dig.  U  68-66;  Dec.  Dig.  f  64.*] 

Dean  and  Letton,  J  J.,  dissenting. 
(Syllabus  by  the  Court) 

Appeal  from  District  Court  Lancaster 
County;   Ck>rnlsh,  Judge. 

Mandamus  by  the  State,  on  relation  of 
John  M.  Ragan,  against  George  C.  Junkin, 
as  Secretary  of  State.  Judgment  for  relator, 
and  respondent  appeals.    Affirmed. 

W.  T.  Thompson,  Grant  G.  Martin,  and 
Arthur  F.  Mullen,  for  appellant  O.  O.  Whe- 
don  and  John  C.  Cowln,  for  appellee. 

ROSE,  J.  Defendant  is  Secretary  of  State, 
and  as  such  was  requested  to  place  the  name 
of  relator  on  the  primary  ballot  as  a  Repub- 
lican candidate  for  Judge  of  the  Supreme 
Court  at  the  primary  election  to  be  held  Au- 
gust 17,  1000,  but  refused  on  the  ground 
that  compliance  would  be  a  violation  of  the 
nonpartisan  Judiciary  act  passed  at  the  last 
session  of  the  Legislature.  Sess.  Laws  1000, 
p.  256,  c.  53.  The  controversy  thus  raised 
was  submitted  to  the  district  court  of  Lan- 
I  caster  county,  where  the  act  In  question  was 


•For  other  eases  sea  sun*  topla  and  section  NUMBBK  la  Dec.  ft  Am.  Digs.  1907  to  data,  t  Reporter  Indaxa* 
122  N.W.-80V4 

Digitized  by  VjOOQ  IC 


474 


122  NORTHWESTERN  REPORTEB. 


(Neb. 


held  void  as  being  an  Invasion  of  tbe  con- 
stitutional right  of  free  assembly,  of  free 
speech,  and  of  a  free  ballot  A  peremptory 
writ  of  mandamus  was  accordingly  allowed, 
directing  defendant  to  place  relator's  name 
on  the  primary  ballot  In  compliance  with  the 
primary  election  law  and  in  disregard  of  the 
nonpartisan  Judiciary  act.  From  the  order 
allowing  the  writ,  defendant  appeals,  and  his 
record  presents  for  review  the  correctness  of 
the  ruling  of  the  trial  court. 

Tbe  first  section  of  the  nonpartisan  Judi- 
ciary act  authorizes  party  nominations  at 
conventions  and  primaries,  and  concludes  as 
follows:  "But  candidates  for  the  follow- 
ing offices,  to  wit.  Chief  Justice  of  the  Su- 
preme Court,  Judge  of  the  Supreme  Court, 
Judge  of  the  district  cottrt,  county  Judge,  re- 
gent of  the  state  university,  superintendent 
of  public  instruction  and  county  superin- 
tendent of  public  instruction  shall  not  be 
nominated.  Indorsed,  recommended,  censured, 
criticised  or  referred  to  in  any  manner  by 
any  political  party,  or  any  political  conven- 
tion or  primary,  or  at  any  primary  election; 
and  no  party  name  or  designation  shall  be 
given  upon  any  ballot  to  any  candidate^  for 
any  of  said  offices,  and  hereafter  all  candi- 
dates for  all  of  said  offices  shall  be  nominated 
only  by  petition,  and  no  candidate  for  any 
of  said  offices  shall  appear  on  any  party  tick- 
et." Sess.  Laws  1909,  p.  256,  c.  53,  {  1.  Ac- 
cording to  this  provision  candidates  for  Ju- 
dicial and  educational  offices  cannot  be  "nomi- 
nated, indorsed,  recommended,  censured,  crit- 
icised or  referred  to  in  any  manner  by  any 
political  party,  or  any  political  convention 
or  primary,  or  at  any  primary  election." 
Does  the  Bill  of  Rights  forbid  such  an  enact- 
ment? It  declares:  "Every  person  may  free- 
ly speak,  write,  and  publish  on  all  subjects, 
being  responsible  for  the  abuse  of  that  lib- 
erty;  and  In  all  trials  for  lil>el,  both  civil 
and  criminal,  the  truth  when  published  with 
good  motives,  and  for  Justifiable  ends,  shall 
be  a  sufficient  defense."  Const,  art.  1,  {  6. 
"The  right  of  the  people,  peaceably,  to  as- 
semble to  consult  for  the  common  good,  and 
to  petition  the  government,  or  any  depart- 
ment thereof,  shall  never  be  abridged."  Const 
art.  1,  {  19.  The  first  provision  quoted  pro- 
tects every  person  in  his  right  to  si>eak, 
write,  and  publish  on  all  subjects,  and  the 
next  permits  him  to  assemble  with  others  to 
consult  for  the  common  good.  A  political 
meeting  or  convention  is  an  "assemblage" 
witbin  the  meaning  of  the  constitutional  pro- 
vision that  the  right  of  the  people  to  assemble 
and  consult  for  tbe  common  good  shall  never 
be  abridged.  The  right  of  a  citizen  to  speak, 
write,  and  publish  on  all  subjects  does  not 
terminate  when  he  enters  a  political  conven- 
tion or  assemblage.  With  good  motives  and 
for  Justifiable  ends  the  members  of  such  a 
body  may  Jointly  speak  and  publish  the  truth 
about  candidates  for  office,  and  this  right 
extends  to  aspirants  for  Judicial  and  educa- 
tional offices. 


Jndge  Cooley,  in  discussing  the  constitu- 
tional liberty  of  the  press  and  of  speech, 
said:  "There  are  cases  where  it  is  clearly 
the  duty  of  every  one  to  speak  freely  what 
he  may  have  to  say  concerning  public  officers, 
and  those  who  may  present  themselves  for 
public  positions.  Through  tbe  ballot  box  the 
electors  approve  or  condemn  those  who  ask 
their  suffrages."  Cooley's  Constitutional  Lim- 
itations (6th  Ed.)  p.  530.  Delegates  and  mem- 
bers of  political  organizations  not  only  take 
with  them  into  their  party  connclls  the  In- 
alienable right  to  spealc,  write,  and  publish  on 
all  subjects,  but  the  full  benefit  of  this  privi- 
lege can  only  be  obtained  by  united  action. 
Political  parties  are  tbe  great  moving  forces 
In  the  administration  of  public  affairs,  and 
their  Influence  in  elections  cannot  be  eliminat- 
ed by  the  Legislature  as  long  as  the  right  to 
assemble  and  speak  the  truth  remains  in  the 
charter  of  our  liberties'.  Published  criticisms 
of  candidates,  officers,  and  policies  are  potent 
factors  In  the  struggle  for  civic  virtue  and 
cannot  be  suppressed  by  legislative  enact- 
ment The  privilege  of  speaking  and  pub- 
lishing the  truth  with  good  motives  and  for 
Justifiable  ends  was  not  Inserted  In  tbe  Bill 
of  Rights  by  accident  The  doctrine  that  the 
truth  as  to  a  man's  conduct  Is  no  Justification 
for  publishing  it  In  the  press  originated  in 
the  Star  Chamber,  and  was  In  high  favor  in 
that  tribunal  when  printing  became  an  ef- 
fective means  of  disseminating  what  honest 
men  said  about  the  abuses  of  official  power 
and  the  conduct  and  policies  of  public  men. 
The  hostility  to  snch  a  restriction  of  free 
speech  and  of  a  free  press  resulted  in  tbe 
adoption  of  section  6  of  the  Bill  of  Rights. 
The  nonpartisan  Judiciary  act  is  void  in  so 
far  as  it  declares  that  candidates  for  Ju- 
dicial and  educational  offices  shall  not  be 
"nominated,  indorsed,  recommended,  censur- 
ed, criticised  or  referred  to  In  any  manner 
by  any  political  party,  or  any  political  con- 
vention or  primary,  or  at  any  primary  elec- 
tion." 

The  act  under  consideration  prescribes  the 
manner  of  nominating  candidates  for  Judi- 
cial and  educational  offices  and  the  form  of 
ballot  to  be  used  at  the  November  election. 
In  this  connection  the  following  provisions 
are  assailed  as  unconstitutional:  "Candidates 
for  public  office  may  be  nominated  otherwise 
than  by  convention,  committee  or  primary 
meeting  in  the  following  manner:  A  cer- 
tificate of  nomination  containing  the  name 
of  the  candidate  for  the  office  to  t>e  filled, 
stating  the  name,  residence,  business  and 
postofflce  address  of  the  candidate,  shall  be 
signed  by  electors  residing  in  the  district  or 
political  division  In  which  the  officers  are  to 
be  elected,  and  filed  with  the  clerk  of  the 
village,  city  or  county,  or  with  the  Secretary 
of  State  as  the  case  may  be.  The  number  of 
signatures  shall  not  be  less  than  5.000,  not 
more  than  500  of  which  shall  be  from  one 
county,  when  the  nomination  is  for  Chief  Jus- 
tice or  Judge  of  the  Supreme  Court"    Sess. 


Digitized  by  VjOOQ  l€ 


Neb.) 


STATE  V.  JUNKIN, 


475 


Laws  1909,  p.  258,  c.  53,  |  3.  Under  the  pro- 
visions quoted  only  500  electors  In  a  connty 
can  lawfully  sign  the  nominating  certificate 
of  a  candidate  for  Judge  of  the  Supreme 
Court,  though  there  may  be  more  than  5,000 
legal  voters  therein.  In  other  words,  500 
electors  In  a  county  may  participate  In  nomi- 
nating a  candidate  for  Judge  of  the  Supreme 
Court,  and  when  they  do  so  the  other  voters 
in  the  same  county  are  deprived  of  the  right 
to  sign  a  nominating  certificate  for  the  same 
candidate.  In  Adams  county,  where  relator 
resides,  nearly  6,000  electors  voted  at  the 
general  election  In  1908.  Only  500  of  them, 
under  the  nonpartisan  Judiciary  act,  can  take 
part  In  nominating  him  for  Judge  of  the  Su- 
preme Court,  and  this  would  be  true,  If  the 
entire  electorate  of  5,000  were  a  unit  In  de- 
manding an  opportunity  to  vote  for  him  as 
a  r^ular  nonpartisan  candidate  at  the  No- 
vember election.  For  want  of  the  signatures 
of  the  supporters  who  are  deprived  of  the 
right  to  sign  the  nominating  certificate  of  the 
candidate  of  their  choice  he  may  not  be  nomi- 
nated. In  such  an  event  his  name  would  not 
be  printed  on  the  official  ballot  for  the  No- 
vember election,  and  their  right  to  vote  for 
him  thereat  as  a  regular  nominee  would  be 
lost  .Under  these  circumstances  the  empty 
privilege  of  writing  on  official  ballots  in 
blank  spaces  the  names  of  persons  who  have 
not  been  nominated,  with  the  prospect  of 
tiavlng  such  votes  classified  In  the  election 
returns  as  "scattering,"  is  not  the  full  meas- 
ure of  an  elector's  rights  within  the  mean- 
ing of  the  Constitution.  Electors  who  desire 
to  vote  for  a  particular  candidate  for  Judge 
of  the  Supreme  Court  at  the  November  elec- 
tion should  be  allowed  to  take  part  in  nomi- 
nating blm  or  in  whatever  preliminary  step 
the  law  requires  as  a  condition  of  allowing 
his  name  to  be  printed  on  the  official  ballot. 
This  privilege  Is  protected  by  the  following 
section  of  the  Bill  of  Rights:  "All  elections 
shall  be  free;  and  there  shall  be  no  hin- 
drance or  impediment  to  the  right  of  a  quali- 
fied voter  to  exercise  the  elective  franchise." 
Const  art  1,  I  22. 

When  the  lawmakers  enter  the  party  cau- 
cus, the  party  convention,  the  party  commit- 
tee, and  the  primary  to  make  regulations, 
they  must  act  -within  the  limits  of  the  fore- 
going provision.  The  elective  franchise  may 
be  invaded  by  such  r^ulatlons,  when  they 
pre8crlt>e  the  forms  of  the  official  ballots  to 
be  used  at  the  general  election  and  establish 
the  methods  of  making  nominations.  These 
forms  and  methods  may  be  as  effective  to 
deprive  the  voter  of  his  rights  as  direct  legis- 
lation relating  to  the  November  election. 
Chief  Justice  Holcomb,  in  discussing  a  pri- 
mary law,  said:  "It  is  a  part  of  the  election 
machinery  by  which  Is  determined  who  shall 
be  permitted  to  have  their  names  appear  on 
the  ofllcial  election  ballot  as  candidates  for 
public  office.  To  say  that  the  voters  are  free 
to  exercise  the  elective  franchise  at  a  gen- 


eral election  for  nominees,  in  the  choice  of 
which  unwarranted  restrictions  and  hindran- 
ces are  interposed,  would  be  a  hollow  mock- 
ery. The  right  to  freely  choose  candidates 
for  public  offices  is  as  valuable  as  the  right 
to  vote  for  them  after  they  are  chosen.  Both 
these  rights  are  safeguarded  by  the  constitu- 
tional guaranty  of  freedom  in  the  exercise 
of  the  elective  franchise."  State  v.  Drexel, 
74  Neb.  790,  105  N.  W.  179.  In  the  case  cited 
Chief  Justice  Holcomb  adopted  the  following 
language  of  Prof.  Wlgmore:  "Nomination  for 
public  office  may  be  considered  in  two  as- 
pects: First,  It  Involves  the  right  of  every 
eligible  person  to  be  voted  for  by  any  elector 
who  desires  to  do  so;  secondly,  it  involves 
the  right  of  each  elector  to  exercise  choice 
among  all  who  are  eligible.  The  two  rights 
may  be  protected  by  the  same  legislation, 
but  it  is  important  to  remember  that  there 
is  Involved  not  merely  the  right  of  an  In- 
dividual to  be  a  candidate,  but  the  right  of 
every  other  person  to  select  him  for  the  of- 
fice; practically  the  feasibility  of  independ- 
ent political  movements  depends  upon  the 
second  right"  23  American  Law  Beview, 
730. 

State  V,  Drexel,  74  Neb.  776,  105  N.  W. 
174,  was  cited  with  approval  by  the  Supreme 
Court  of  Illinois  In  People  v.  Election  Com- 
missioners, 221  111.  9,  77  N.  B.  321,  where  the 
following  language  was  used  by  that  court : 
"When  statutes  are  enacted  which  regulate 
the  form  of  the  ballot  to  be  used,  what  shall 
appear  upon  the  ballot  and  bow  the  candi- 
dates whose  names  shall  so  appear  shall  be 
chosen,  the  provision  of  the  Bill  of  Rights 
applies  to  the  new  condition.  The  right  to 
choose  candidates  for  public  offices  whose 
names  will  be  placed  on  the  official  ballot  is 
as  valuable  as  the  right  to  vote  for  them 
after  they  are  chosen,  and  is  of  precisely  the 
same  nature.  There  is  scarcely  a  possibility 
that  any  person  will  or  can  be  elected  to  of- 
fice under  this  system  unless  he  shall  be  cho- 
sen at  a  primary  election,  and  this  statute, 
which  provides  the  methods  by  which  that 
shall  be  done  and  prescribes  and  limits  the 
rights  of  voters  and  of  parties,  must  be  re- 
garded as  an  integral  part  of  the  process  of 
choosing  public  officers,  and  as  an  election 
law."  The  Supreme  Court  of  Illinois  in  a 
later  case  said :  "The  power  of  the  individ- 
ual voter  at  the  polls  to  cast  his  vote,  un- 
trammeled,  for  the  candidate  of  his  choice,  is 
no  more  sacred  than  the  right  of  the  individ- 
ual member  of  a  political  party  to  express 
his  choice  for  party  candidates  at  a  primary 
election."  Rouse  v.  Thompson,  228  111.  64U, 
81  N.  E.  1115. 

In  depriving  electors  of  the  right  to  partici- 
pate in  nominating  for  Judicial  and  educa- 
tional offices  the  candidates  of  their  choice, 
the  nonpartisan  Judiciary  act  violates  section 
22  of  the  Bill  of  Rights. 

The  duty  to  uphold  all  valid  legislation  has 
led  to  an  earnest  effort  to  find  some  substantial 


Digitized  by  VjOOQ  l€ 


476 


122  NORTHWESTERN  REPORTER. 


(Nelk 


basis  for  sustaining  tliose  proyislons  wbldi 
are  not  directly  Inhibited  by  the  Constitution. 
This  cannot  be  done,  however,  If  either  of  the 
invalid  provisions  was  an  inducement  to  the 
passage  of  the  bill.  The  void  part  of  section  1 
is  repeated  in  section  10  with  the  legislative 
announcement  that  it  Is  "declared  to  be  the 
purpose  of  the  people  of  Nebraska  to  remove 
all  of  said  offices  entirely  from  the  domain  of 
party  politics."  The  leading  provision  for 
carrying  into  eflTect  that  purpose,  the  one  dis- 
closed by  the  act  itself,  is  the  void  provision 
that  candidates  for  those  offices  shall  not  be 
"nominated,  indorsed,  recommended,  censur- 
ed, criticised  or  referred  to  by  any  political 
party,  or  any  political  convention  or  primary, 
or  at  any  primary  election."  It  is  true  the 
Legislature  prescribed  a  form  for  a  nonparti- 
san ballot  and  prohibited  party  designation 
of  candidates  thereon.  This,  however,  did 
not  prevent  party  activity  In  the  election  of 
Judicial  and  educational  officers.  The  legis- 
lative intention  being  to  remove  such  offices 
from  the  domain  of  party  politics,  and  the 
leading  provision  for  carrying  that  purpose 
into  elTect  being  void,  the  bill  necessarily 
(Shows  on  its  face  .that  the  void  part  was  an 
Inducement  to  the  passage  of  the  act. 

Even  If  the  unconstitutional  provisions 
were  not  the  Inducing  cause  of  the  legislation, 
the  entire  act  must  fall,  unless  the  valid  and 
invalid  parts  can  be  separated  in  such  a 
way  as  to  leave  an  independent  statute  capa- 
ble of  enforcement.  The  Intention  of  the  Leg- 
islature must  be  expressed  by  written  lan- 
guage. In  segregating  void  provisions  the 
language  itself  must  be  separated.  "Where  a 
part  of  an  act  Is  unconstitutional,"  wrote 
Chief  Justice  Holcomb,  "because  contraven- 
ing some  provision  of  the  fundamental  law, 
the  language  found  in  the  invalid  portion  of 
the  act  can  have  no  legal  force  or  efficacy  for 
any  purpose  whatever."  State  v.  Insurance 
Co.  of  North  America,  71  Neb.  335,  100  N.  W. 
405.  It  is  equally  true  that  what  remains 
must  repress  the  legislative  will.  Independent- 
ly of  the  void  part,  since  the  court  has  no 
power  to  legislate.  These  propositions  are 
elementary,  and  citation  of  precedents  to  sup- 
port them  is  unnecessary.  For  the  purpose 
of  applying  the  rules  stated,  section  1  of  the 
act  is  here  reproduced:  "Any  convention  or 
primary  meeting,  as  hereinafter  defined,  held 
for  the  purpose  of  making  nominations  for 
public  offices,  and  also  voters  of  the  number 
hereinafter  specified,  may  nominate  candi- 
dates for  public  offices,  to  be  filled  by  election 
within  the  state;  a  convention  or  primary 
meeting  within  the  meaning  of  this  act  is  an 
organized  assemblage  of  voters,  representing 
a  political  party  which  at  the  last  election  be- 
fore the  holding  of  such  conventions  or 
primary  meetings,  polled  at  least  one  per 
cent  of  the  entire  vote  in  the  state,  county, 
or  other  subdivision  or  district  for  which  the 
nomination  is  made.    A  committee  appointed 


by  such  convention  or  primary  meeting  may 
also  maire  nominations  for  public  offices,  and 
authorized  to  do  so  by  resolutions,  duly  pass- 
ed by  the  convention  or  meeting  at  which 
said  committee  was  appointed.  A.  state  con- 
vention of  any  political  party  may  take  ac- 
tion upon  any  constitutional  amendment, 
which  is  to  be  voted  upon  at  the  following 
election,  and  said  convention  may  declare  for 
or  against  such  amendment,  and  such  decla- 
ration shall  be .  considered  as  a  portion  of 
their  ticket  to  be  filed  with  the  Secretary  of 
State  and  by  him  certified  to  the  various 
county  clerks.  But  candidates  for  the  fol- 
lowing offices,  to  wit.  Chief  Justice  of  the 
Supreme  Court,  Judge  of  the  Supreme  Court, 
Judge  of  the  district  court,  county  ]udge,  re- 
gent of  the  state  university,  superintendent 
of  public  instruction  and  county  superin- 
tendent of  public  Instruction  shall  not  be 
nominated.  Indorsed,  recommended,  censured, 
criticised  or  referred  to  in  any  manner  hy 
any  political  party,  or  any  political  conven- 
tion or  primary,  or  at  any  primary  election ; 
and  no  party  name  or  designation  shall  be 
given  upon  any  ballot  to  any  candidate,  for 
any  of  said  offices,  and  hereafter  all  candi- 
dates for  all  of  said  offices  shall  be  nominat- 
ed only  by  petition,  and  no  candidate  fpr  any 
of  said  offices  shall  appear  on  any  party  tick- 
et."   Sess.  Laws  1909,  p.  256,  c.  53. 

In  this  section  the  void  provision  already 
described  limits  the  operation  of  what  pre- 
cedes It  The  first  part  of  the  section  au- 
thorizes nominations  by  conventions  and  pri- 
mary meetings.  This  portion,  with  the  void 
part  stricken  out,  would  authorize  partisan 
nominations  of  candidates  for  Judicial  and 
educational  offices,  which  is  exactly  the  oppo- 
site in  that  respect  of  what  the  Legislature 
intended.  With  the  qualifying  and  void  part 
eliminated,  therefore,  the  first  part  of  the 
section  does  not  express  the  legislative  will. 
These  observations  apply  also  to  section  10, 
where  the  void  provision  in  the  first  sections 
Is  repeated. 

Section  3  makes  provision  for  nominating, 
candidates  for  Judicial  and  educational  of- 
fices by  petition  or  certificate  of  nomination. 
This  section  contains  the  void  provision  which 
deprives  all  electors  in  a  county  except  600 
of  the  right  to  sign  the  nominating  certificate 
of  a  particular  "candidate  by  petition."  The 
petition  described  in  section  3  is  a  substan- 
tive part  of  the  legislation,  and  reference  to 
It  Is  repeatedly  made  throughout  the  act 
With  the  void  provision  stricken  out,  the  pe- 
tition mentioned  by  the  Legislature  in  other 
parts  of  the  bill  would  not  be  the  petition  to 
which  the  Legislature  referred.  It  Is  there- 
fore clear  that,  with  the  unconstitutional 
provisions  eliminated,  the  balance  of  the  act 
would  not  be  what  the  lawmakers  In  fact 
enacted.  There  Is  no  lawful  way  to  sepa- 
rate the  valid  and  Invalid  portions  so  as  to 
leave  an  enforceable  statute  expressing  the 
will  of  the  Legislature. 


Digitized  by 


Google 


Neb.) 


STATE  V.  JDNKIN. 


477 


It  follows  that  no  part  of  tbe  act  can  be 
sustained. 

The  Judgment  of  tbe  district  court  Is  af- 
firmed. 

REOBSE,  C.  J.,  absent  and  not  sitting. 

DEAN,  J.  (dissenting).  I  am  unable  to  con- 
cur in  the  opinion  of  the  majority  of  tbe 
court.  From  the  arguments  of  counsel  and 
the  law  applying  to  tbe  facts  it  does  not 
clearly  appear  that  the  act  In  question  comes 
wltbln  the  inhibitory  provisions  of  the  funda- 
mental law  that  have  been  Invoiced  to  de- 
stroy it.  The  act  is  attacked  solely  on  con- 
stitutional grounds,  and  thus  the  recognized 
rules  of  this  and  other  Jurisdictions,  in 
cases  Inrolving  constitutional  construction, 
should  be  applied  to  determine  the  right 
of  the  act  to  take  a  place  among  the  laws  of 
tbe  state. 

Viewed  from  any  point,  there  is  a  delicacy 
surrounding  the  discussion  of  some  fea- 
tures of  the  case  that  would  be  gladly  avoid- 
ed, but  due  regard  for  the  performance  of  a 
public  duty  otherwise  directs.  The  Iieglsla- 
ture  has  for  many  years  been  modifying  the 
general  election  laws  In  response  to  public 
demand.  It  gave  us  the  Australian  ballot 
system,  and  events  have  proven  its  wisdom. 
It  gave  us  the  state-wide  primary  law,  and, 
while  it  may  be  defective  in  some  respects, 
it  is  within  the  province  of  tbe  Legislature 
to  amend  it  In  any  event  it  is  not  likely 
the  people  will  surrender  their  power  or  that 
a  return  will  be  had  to  the  convention  sys- 
tem of  nominating  candidates  for  public  of- 
fice, The  nonpartisan  Judiciary  act,  with 
but  7  negative  votes  in  the  Senate  and  but 
27  negative  votes  in  the  House  recorded 
against  it,  is  but  an  expansion  of  the  gen- 
eral primary  system.  Its  principle  is  not 
new  to  the  statute  books  of  five  states  or 
more.    It  is  not  an  untried  experiment. 

In  the  preservation  of  the  constitutional 
checks  and  balances  of  our  system  of  gov- 
ernment is  Involved  the  preservation  of  gov- 
ernment Itself.  It  Is  fundamental  that  the 
legislative,  executive,  and  Judicial  depart- 
ments shonid  each  be  free  to  perform  their 
separate  functions  without  interference  from 
either  of  the  others.  Applying  this  principle 
to  a  legislative  act,  the  validity  whereof  is 
attacked  on  the  sole  ground  of  being  repug- 
nant to  the  Constitution,  a  decent  respect 
for  the  legislative  and  executive  depart- 
ments which  have  respectively  passed  and 
approved  it  inculcates  an  abiding  desire  on 
tbe  part  of  tbe  Judiciary  to  refrain  from  dis- 
turbing it,  except  for  the  most  weighty  rea- 
sons. An  act  of  tbe  Legislature  Is  presumed 
to  be  constitutional.  This  presumption  con- 
tinues until  the  contrary  is  affirmatively 
shown  by  the  challenging  party.  The  Legis- 
lature Is  presumed  to  know,  to  interpret,  and 
to  make  effective  by  competent  legislative 
enactment  the  will  of  tbe  people,  and  every 
act  passed  that  is  conformable  to  tbe  Ck>n- 
Btitutlon  has  all  tbe  power  of  that  instru- 
ment behind  it    All  intendments  of  the  law 


fttTor  these  presumptions.  The  Judiciary  la 
not  the  master  of  the  Constitution,  but  mere- 
ly its  interpreter,  and  In  the  exercise  of  this 
prerogative  it  is  not  the  court's  duty  to  de- 
clare an  act  unconstitutional  unless  it  clear- 
ly and  beyond  question  contravenes  some 
provision  of  the  fundamental  law,  and  every 
reasonable  doubt  will  be  resolved  in  favor  of 
sustaining  the  act  By  close  adherence  to 
this  long  familiar  rule  may  the  Judiciary  pre- 
serve itself  from  the  imputation  of  even 
seeming  to  invade  the  legislative  realm.  It 
may  thus  avoid  "bench  legislation,"  an  In- 
sidious Judicial  offense,  and  one  which  may 
in  time,  if  Indulged,  Imperil  tbe  perpetuity 
of  our  Institutions.  Cooley's  Const  LIm.  (7th 
Ed.)  227;  Prof.  Wlgmore,  23  Am.  Law  Re- 
view, 719;  City  of  Topeka  v.  GlUett,  32  Kan. 
431,  4  Pac  800;  Ogden  v.  Saunder*,  12 
Wheat  270,  6  L.  Ed.  606;  Hoover  v.  Wood, 
9  Ind.  286;  Wellington,  Petitioner,  16  Pick. 
(Mass.)  96,  26  Am.  Dec.  631. 

The  majority  opinion  holds:  "Political  par- 
ties are  the  great  moving  forces  in  the  ad- 
ministration of  public  affairs."  That  evil 
Influences  and  impure  motives  should  creep 
into  the  management  of  political  parties  are 
circumstances  that  have  been  long  recogniz- 
ed and  are  everywhere  deplored;  but  tbe  act 
Is  not  aimed  at  the  destruction,  or  even  the 
Impairment,  of  an  exercise  of  the  legitimate 
functions  of  political  parties.  Tbe  relator's 
argument  on  this  point  indicates  he  Is  seiz- 
ed with  this  fear,  and  In  a  manner  his  pro- 
test against  the  act  is  suggestive  of  John's 
protest  at  Runnymede.  The  nonpartisan  act 
leaves  the  solution  of  political  questions  to 
political  parties.  It  appears  to  be  only  a 
well-directed  protest  against  the  domination 
of  nonpolitlcal  departments  of  government 
by  partisan  political  influence.  Justice,  in 
the  proper  application  of  its  principles,  is  no 
respecter  of  party  lines.  Mo  logical  reason 
for  the  domination  of  our  school  system  by 
the  spirit  of  partisanship  can  be  advanced. 
There  is  sufficient  latitude  on  public  ques- 
tions and  public  problems,  that  are  in  their 
nature  purely  political,  to  absorb  the  legit- 
imate attention  of  those  whose  guiding 
hands  would  direct  the  destinies  of  the  polit- 
ical parties  and  thus  indirectly,  but  none 
the  less  potently,  the  destiny  of  state  and 
nation.  In  tbe  d^artments  sought  to  be 
affected,  the  Legislature  has  the  right  within 
the  bounds  of  the  fundamental  law  to  exert 
its  power  to  the  end  that  they  may  be  effect- 
ively removed  by  legislative  enactment  from 
the  domain  of  partisan  politics. 

Who  will  question  the  propriety  of  legis- 
lation to  the  end  the  Judiciary  may  avoid 
even  tbe  appearance  of  securing  place  and 
power  at  the  bands  of  tbe  cunning  cap- 
tains of  political  patronage?  He  was  a  wise 
writer  who  said:  "A  gift  doth  blind  the  eyes." 
Is  the  gift  less  seductive,  and  will  it  less 
effectually  dull  the  eye  of  the  magistrate 
to  the  iniquities  of  the  giver,  because  it  takes 
the  form  of  preferment  in  office?  No  one 
will  question  the  propriety  of  giving  added 


Digitized  by  LjOOQ  l€ 


478 


122  NORTHWESTERN  REPORTER. 


(Neb. 


meaning  to  the  Tital  troth  expressed  In  tbe 
motto  of  our  state,  "Equality  before  the 
'  Law."  By  what  means  may  this  result  be 
the  better  maintained?  Will  it  be  by  an  Im- 
mersion of  the  Judiciary  In  tbe  seethiog  pool 
of  partisan  politics,  or  will  It  be  by  its  sep- 
aration from  that  stirring  feature  of  political 
life  in  the  manner  pointed  out  by  tbe  act  In 
question?  The  Legislature,  coming  from  the 
body  of  the  people,  and  charged  with  legis- 
lative responsibility,  solved  the  problem  in 
a  manner  satisfying  to  Itself  by  the  passage 
of  the  nonpartisan  Judiciary  act.  Who  then 
is  to  pass  upon  the  wisdom  or  the  unwisdom, 
the  expediency  or  the  inexpediency,  that 
may  be  involved  in  Its  declared  purpose? 
Not  the  Judiciary,  for  It  Is  not  within  Its 
constitutional  province,  but  the-  Legislature 
alone  In  the  exercise  of  Its  power  to  amend 
and  Its  power  to  repeal.  Will  It  be  seriously 
urged  that  loyalty  to  party  or  party  leader- 
ship, because  of  past  achievement  or  promise 
of  future  performance,  or  for  any  sane  rea- 
son, Is  always  and  everywhere  and  regard- 
less of  all  else  the  paramount  duty  of  the 
citizen,  whether  in  or  out  of  office?  It  is  to 
be  deplored  that  in  some  instances  In  pub- 
lic history,  in  the  exuberance  of  an  Intense 
partisan  spirit,  loyalty  to  party  leadership 
seems  at  times  almost  to  have  overcome 
loyalty  to  all  else.  Political  parties  will  be 
always  with  us.  They  are  inseparable  from 
our  form  of  government,  but  danger  lies  in 
the  direction  of  the  exercise  of  a  spirit  of 
excessive  and  unreasoning  loyalty  to  party 
or  to  party  leaders.  See  Messages  of  the 
Presidents  (Washington)  p.  54;  Bryce's  The 
American  Commonwealth,  vol.  1,  p.  104. 

Tbe  opinion  holds,  In  effect,  that  because, 
under  the  provisions  of  the  act  In  question, 
only  600  petitioners  In  Adams  county,  the 
home  of  relator,  can  take  part  In  nominating 
him,  he  might  thereby  be  prevented  from  re- 
ceiving a  nomination,  and  the  electorate  of 
his  county,  which  contains  about  5,000  elect- 
ors, would  thus  be  deprived  the  opportunity 
of  voting  for  him.  The  point  does  not  seem 
to  be  well  taken.  It  does  not  appear  reason- 
able to  believe  the  enforcement  of  this  fea- 
ture of  the  act  would  be  fraught  with  results 
so  serious.  There  are  eight  counties  con- 
tiguous to  that  of  relator,  having  a  popula- 
tion In  each  that  Is  not  much,  if  any,  less 
than  that  of  Adams  county.  Thus,  In  bis 
own  and  In  the  eight  neighboring  counties, 
with  one  additional,  the  names  of  the  requi- 
site 5,000  signatures  might  be  obtained  by 
the  relator,  or  by  any  qualified  candidate. 
In  the  state  at  large  the  entire  vote  amounts 
to  approximately  250,000.  Two  per  cent,  of 
that  number  is  the  number  of  signatures 
required  to  place  the  name  of  relator  in 
nomination.  The  most  populous  county  In 
the  state  has  approximately  25,000  voters. 
Two  per  cent,  of  that  number  Is  the  maxl- 
mtun  number  of  signatures  permitted  by  the 
act  in  any  one  county,  so  that  upon  a  per- 
centage basis,  while  it  is  true  no  percentage 
is  named  In  the  act,  It  Is  seen  there  is  no 


distinction  between  the  different  portions  of 
the  state  and  no  distinction  as  to  the  number 
of  signatures  required  of  candidates  for  posi- 
tion in  the  same  class.  The  act  seems  to  im- 
pose no  unusual  or  nnreasonable  burden  or 
restriction  in  the  requirement  that  the  sig- 
natures of  5,000  electors  shall  be  obtained, 
with  the  limit  of  500  in  any  one  county. 
These  are  mere  details  of  the  law,  regula- 
tions that  are  within  the  power  of  the  Legis- 
lature to  prescribe;  By  the  arrangement  of 
the  ballot  provision  Is  made  that  the  voter 
may  write  In  the  names  of  such  additional 
persons  as  may  commend  themselves  to  bis 
choice.  Healey  v.  WIpf  (S.  D.)  117  N.  W. 
521;  23  Am.  Law  Review,  719;  Paine  on 
Elections  (1888)  (  5. 

The  act  is  not  obnoxious  to  the  constitu- 
tional prohibition  against  class  legislation 
because  it  Includes  all  candidates  for  Jadtdal 
position  In  courts  of  record,  and  all  candi- 
dates for  executive  school  positions.  It  adds 
no  new  qualifications  to  the  constitutional  re- 
quirements respecting  the  position  sought  by 
relator.  State  v.  Hunter,  38  Kan.  678,  17 
Pac.  177;  State  v.  Township  Committee  (N. 
J.)  14  Atl.  587;  City  of  Topeka  v.  GlUett,  32 
Kan.  431,  4  Pac.  800;  State  v.  Berka,  20 
Neb.  375,  30  N.  W.  267 ;  State  v.  Irrigation 
Co.,  59  Neb.  1,  80  N.  W.  52.  The  majority 
opinion  cites  State  v.  Drexel,  74  Neb.  776, 
105  N.  W.  174.  There  a  candidate  for  nomi- 
nation was  required  by  the  act  there  In  ques- 
tion to  pay  a  sum  equal  to  1  per  cent,  of  the 
salary  of  the  desired  office,  for  the  term,  to 
entitle  his  name  to  appear  on  the  primary 
ballot  In  brief,  the  act  required  him  to  pur- 
chase the  right  to  submit  his  name  to  the 
electorate  as  a  party  candidate  for  nomina- 
tion. The  act  was  held  to  be  clearly  repug- 
nant to  the  Constitution ;  but  It  does  not  so 
clearly  appear  that  the  rule  there  Invoked 
applies  to  the  facts  In  the  case  at  bar.  Peo- 
ple V.  Election  Commissioners,  221  111.  9,  77  N. 
E.  321,  and  Rouse  v.  Thompson,  228  111.  522, 
81  N.  E.  1109,  are  cited  in  the  majority  opin- 
ion. The  soundness  of  all  that  is  said  In  the 
cited  portions  of  the  cases  may  be  conceded. 
For  the  most  part  they  appear  to  show  a  con- 
nection between  the  primary  election  and 
the  general  election. 

The  opinion  discusses  two  features  that 
were  not  argued  in  the  brief  of  relator.  Ref- 
erence is  had  to  the  feature  limiting  the 
number  of  signatures  that  may  be  obtained 
in  any  one  county  to  600,  and  to  that  other 
feature  which  discusses  freedom  of  speech 
and  the  right  to  peaceably  assemble.  It  is 
an  established  rule  of  this  court  that  assign- 
ments which  are  not  argued  In  the  briefs 
of  the  party  complaining  are  deemed  to  be 
waived  and  will  receive  no  attention  here. 
The  reason  for  the  rule  and  its  application 
is  sound.  It  Is  fair  to  all  litigants,  avoids 
surprise  to  counsel,  and  gives  to  each  party 
an  equal  opportunity  to  be  heard  on  contest- 
ed matter.  In  Brown  ▼.  Dunn,  38  Neb.  52, 
56  N.  W.  703,  the  rule  was  applied  by  Ragau, 


Digitized  by  VjOOQ  IC 


Neb.) 


STATE  T.  JUNKIN. 


479 


C:  "We  will  not  examine  errors  alleged  In 
a  petition  in  error  unless  Buch  errors  are 
specifically  pointed  out  and  relied  upon  In 
the  briefs  filed  in  the  case,  under  the  rules 
of  this  court"  In  support  of  his  ruling  he 
cites  Pbeniz  Ins.  Co.  v.  Reams,  S7  Neb.  423. 
55  N.  W.  1074.  To  the  same  eftect  are  the 
following:  Peaks  v.  Lord,  42  Neb.  15,  60  N. 
W.  349 ;  Madsen  t.  State,  44  Neb.  631,  62  N. 
W.  1081 ;  Blodgett  t.  McMurtry,  54  Neb.  71, 
74  N.  W.  392;  Scott  v.  CJbope,  83  Neb.  41,  49 
N.  W.  90 ;  Glaze  v.  Parcel,  40  Neb.  732,  59  N. 
W.  382;  Gullck  v.  Webb,  41  Neb.  706,  60  N. 
W.  13,  43  Am.  St.  Rep.  720;  Erck  v.  Bank, 
43  Neb.  613,  62  N.  W.  67 ;  Johnson  v.  GuHck. 
46  Neb.  817,  65  N.  W.  883,  50  Am.  St.  Rep. 
629;  Wood  Co.  v.  Gerhold,  47  Neb.  397,  66 
N.  W.  538;  Mandell  v.  Weldin,  59  Neb.  609. 
82  N.  W.  6. 

The  majority  opinion  holds:  "Where  it 
appears  on  the  face  of  the  legislative  act 
that  an  Inducement  for  its  passage  was  a 
void  provision,  the  entire  act  falls."  And 
that:  "Where  valid  and  Invalid  parts  of  a 
legislative  act  are  so  intermingled  that  they 
cannot  be  separated  in  such  a  manner  as 
to  leave  an  enforceable  statute  expressing 
the  legislative  will,  no  part  of  the  enactment 
can  be  enforced."  Even  assuming  that  the  por- 
tions of  the  act  in  question  are  invalid  that 
are  pointed  out  by  the  majority  opinion,  yet  it 
does  not  appear  that  they  are  so  intermingled 
with  the  valid  portions  that  they  cannot  be 
separated  so  as  to  leave  an  enforceable  stat- 
ute. The  act  in  question  would  still  be  en- 
forceable by  omitting  from  its  first  section 
the  following  words:  "Indorsed,  recommend- 
ed, censured,  criticised  or  referred  to  In  any 
manner."  With  these  words  omitted  the 
first  section  would  provide  that  candidates 
for  the  Judiciary  and  executive  school  of- 
fices "shall  not  be  nominated  by  any  political 
party  or  any  political  convention  or  primary 
or  at  any  primary  election."  Applying  the 
same  rule  to  the  feature  of  section  3  of  the 
act,  which  limits  the  number  of  signatures  to 
500  names  in  any  one  county,  and  with  these 
words  omitted,  "not  more  than  five  hundred 
of  which  shall  be  from  one  county,"  the  sec- 
tion would  then  read:  "The  number  of  sig- 
natures shall  not  be  less  than  five  thousand 
•  •  •  when  the  nomination  Is  for  Chief 
Justice  or  Judge  of  the  Supreme  Court."  The 
limitation  of  500  signatures  to  any  one  coun- 
ty Is  not  essential  to  the  practical  operation 
of  the  act.  With  this  feature  omitted,  5,000 
voters  from  any  portion  of  the  state  would 
nominate,  and  thus  the  relator,  by  his  own 
showing,  would  not  be  deprived  of  any  sub- 
stantial right  The  act  would  then  merely 
change  the  place  of  nomination  from  the 
floor  of  the  party  convention,  or  from  the 
party  primary,  to  the  body  of  the  people 
without  regard  to  party  afllllatlon.  Has  a 
political  party  an  Inherent  right  to  nominate 
party  candidates  for  nonpolltlcal  offices?  Are 
not  all  the  people  greater  than  a  mere  party 
subdivision  of  the  people? 


Cooley,  In  bis  Constitutional  Limitations 
([7th  Ed.]  p.  247),  concerning  a  legislative 
act,  says:  "The  constitutional  and  uncon- 
stitutional provisions  may  even  be  contained 
In  the  same  section,  and  yet  be  perfectly  dis- 
tinct and  separable,  so  that  the  first  may 
stand  though  the  last  fall."  In  support  of  this 
view  the  author  cites  many  authorities.  The 
majority  opinion  contains  a  citation  from 
State  V.  Insurance  Co.,  71  Neb.  325.  99  N. 
W.  36,  100  N.  W.  405,  102  N.  W.  1022,  106 
N.  W.  767.  Fairly  construed,  it  reafilrms  the 
rule  laid  down  by  Judge  Cooley.  Blair  ▼. 
Rldgley,  41  Mo.  63,  97  Am.  Dec.  248 :  "Out- 
side of  society,  and  disconnected  with  politi- 
cal society,  no  person  has  or  can  exercise 
the  elective  franchise  as  a  natural  right,  and 
be  only  receives  it  upon  entering  into  the  so- 
cial compact  subject  to  such  qualification  as 
may  be  prescribed  by  the  state  or  any  body 
politic."  People  V.  Barber,  48  Hun,  198,  201: 
"The  elective  franchise  Is  not  a  natural  right 
of  the  citizen.  It  Is  a  franchise  dependent 
apon  law  by  which  it  must  be  conferred  to 
permit  Its  exercise.  Spencer  y.  Board  of 
Registration,  1  McArtbur  (D.  C.)  169,  29  Am. 
Rep.  582." 

That  part  of  the  act  which  provides  that 
candidates  for  Judicial  and  educational  of- 
fices cannot  be  censured  or  criticised  is  evi- 
dently intended  to  be  merely  advisory.  It 
win  not  be  seriously  urged  that  either  Judges 
or  educational  officers  should  be  Immune  from 
deserved  censure  or  criticism  by  any  person 
who  has  or  thinks  he  has  Just  cause  for  com- 
plaint The  Inducement  for  the  passage  of  the 
act  is  not  expressed  in  its  details,  but  Is  found 
in  Its  broader  language,  which  is  expressive 
of  a  laudable  desire  to  separate  the  Judiciary 
and  the  school  system  from  partisan  political 
control  by  nonpartisan  nominations  and  non- 
partisan elections. 

In  the  belief  that  the  Judgment  of  the  tri- 
al court  should  be  reversed,  and  the  act  in 
question  sustained,  this  dissent  Is  submitted. 

LETTON,  J.  (dissenting).     While  1  agree  • 
with  much  that  Is  said  In  the  majorit}'  opin- 
ion, I  must  dissent  from  the  conclusion  reach- 
ed.   That  opinion  holds: 

1.  That  the  provision  of  the  law  under  con- 
sideration which  declares  that  candidates  for 
Judicial  and  educational  offices  shall  not  be 
"nominated,  indorsed,  recommended,  censur- 
ed, criticised  or  referred,  to  in  any  manner 
by  any  political  party  or  any  political  con- 
vention or  primary  or  at  any  primary  elec- 
tion," Is  void  as  being  In  violation  of  the  pro- 
visions of  the  Bin  of  Rights  protecting  liberty 
of  speech  and  the  right  of  free  public  as- 
sembly. So  far  as  the  prohibition  of  free 
speech  by  citizens  assembled  together  In  con- 
ventions Is  concerned,  this  provision  of  the 
act  is  clearly  and  manifestly  void.  Its  en- 
forcement In  this  respect  would  be  an  assault 
of  the  gravest  and  most  heinous  character 
upon  the  liberty  of  the  citizen,  and  one  that 
no  free  people  would  long  endure.  It  is  op- 
posed to  that  spirit  of  liberty  which  Is  our 
dearest  heritage,  and  which  should  be  most 
Digitized  by  LjOOQ  l€ 


480 


122  NORTHWESTEEN  EEPORITEB. 


(Netk 


Jealously  conserved  and  strongly  defended  by 
Leglslfiture,  courts,  and  private  citizen  alike. 
It  cannot  be  defended  aa  a  valid  exercise  of 
legislative  power,  and,  indeed,  counsel  for 
respoudent  laudably  has  made  no  attempt 
to  do>  BO.  But,  perhaps  recognizing  its  in- 
ability and  the  folly  of  attempting  to  curb 
and  limit  free  speech  and  free  assemblage  in 
a  laud  of  liberty,  the  Legislature  wisely  at- 
tached no  penalty  or  punitive  sanction  to  a 
violation  of  its  commands  in  these  respects. 
Since  a  disregard  of  this  provision  can  meet 
no  punishment,  all  that  part  of  the  act  may 
be  treated  as  surplusage.  It  may  be  con- 
sidered as  an  Indication  of  what  the  Legisla- 
tui«  would  have  liked  to  do  If  it  had  the 
power,  or  perhaps  as  advisory  In  its  nature. 
But  I  cannot  go  so  far  as  the  majority  in 
holding  this  whole  provision  void.  Not  all 
of  it  is  obnoxious  to  or  inhibited  by  any 
provision  of  the  Constitution.  The  regulation 
of  primary  elections  Is  concededly  within  the 
province  of  the  Legislature,  and  that  portion 
of  this  provision  which  prohibits  the  nomina- 
tion of  such  candidates  at  any  primary  elec- 
Uon  is  not  in  violation  of  any  constitutional 
provision  and  Is  a  proper  regulation.  The 
Legislature  may,  as  it  did  for  many  years  be- 
fore the  passage  of  the  Australian  ballot  law, 
leave  the  whole  matter  of  the  nomination  of 
candidates  and  the  preparation  of  ballots  to 
be  used  at  the  general  election  to  individual 
or  party  care;  the  only  regulation  at  that 
time  being  that  the  elector  should  deliver  in 
full  view  of  the  people  assembled  at  the 
polls  a  piece  of  paper  with  the  name  of  the 
person  voted  for  written  or  printed  thereon 
and  a  pertinent  description  of  the  office.  Gen. 
St.  1873,  c.  20,  {  29.  Or  it  may  take  into  its 
hands  the  entire  control  and  direction  of  the 
nomination  of  candidates  and  the  prepara- 
tion and  furnishing  of  official  ballots.  Its  ac- 
tion in  regard  to  these  matters,  where  no 
constitutional  right  is  assailed,  is  conclusive 
alike  upon  the  courts  and  upon  the  citizen. 
In  this  state  the  printing  and  furnishing 
•  of  official  ballots  has  for  years  been  assumed 
by  the  state.  No  other  ballots  than  those 
furnished  by  public  authority  can  be  used. 
The  manner  In  which  the  names  of  candi- 
dates shall  appear  upon  such  official  ballot, 
whether  with  or  without  party  designation, 
is  a  matter  entirely  within  the  control  and 
discretion  of  the  Legislature,  provided  only 
that  in  this  respect  no  discrimination  or  par- 
tiality Is  shown  which  will  defeat  the  con- 
stitutional requirements  providing  for  "a  free 
ballot  and  a  fair  count."  Political  parties 
may  or  may  not  be  recognized  by  the  Legis- 
lature In  regulating  the  form  of  ballots,  and 
there  is  no  constitutional  requirement  which 
compels  their  notice.  The  Legislature  has 
the  option  whether  or  not  the  ballots  shall  be 
"ofliclal"  and  printed  at  public  expense,  and 
whether  party  designations  shall  appear  there- 
on; and  it  has  the  power  to  decide  whether 
the  names  of  candidates  printed  upon  the 
"official  ballots"  shall  be  ascertained  by  peti- 
tion, by  convention,  by  primary  election,  or 


by  any  ofixec  maimer  whldi  accomplishes  the 
end  sought,  a  reasonable  limitation  of  the 
number  of  names  necessary  to  print  in  order 
to  attord  every  elector  a  fair  (^portunlty  to 
express  his  preference.  While  at  the  general 
election  the  elector  may  vote  for  whom  he 
pleases  by  writing  any  name  upon  the  bal- 
lot, it  is  manifestly  impossible  f^r  the  state 
to  print  In  advance  the  name  of  every  pos- 
sible candidate,  and  the  exercise  of  some 
method  <^  selection  is  necessary  to  avoid 
needless  expense  and  an  unwieldy  and  cum- 
bersome ballot  The  state,  too,  has  the  ri^ht 
reasonably  to  classify  offices,  and  to  provide 
that  candidates  for  certain  offices  shall  be 
selected  by  primary  election  and  for  bthers 
by  petition.  This  state  having  heretofore 
adopted  the  primary  system  of  nominations 
as  to  certain  offices,  it  has  the  power  to  pro- 
hibit nominations  at  a  primary  election  for 
such  offices  as  to  which  it  is  provided  nomina- 
tion shall  be  by  petition.  In  my  Judgment 
the  prohibition  of  the  nomination  of  candi- 
dates for  Judicial  and  educational  offices  at 
primary  elections  is  a  valid  exercise  of  le^ 
Islatlve  power,  but  the  prohibition  of  free 
speech  and  free  assemblage  contained  In  the 
act  is  not  and  ought  not  to  be  of  more  prac- 
tical or  legal  effect  than  "sounding  brass  or 
tinkling  cymbals"  or  "the  crackling  of  thorns 
under  a  pot" 

2.  Coming,  now,  to  the  provision  limiting 
signatures  to  i)etItlons  for  candidates  for  the 
office  of  Supreme  Judge  to  not  more  than 
500  in  any  one  county:  In  its  practical  opera- 
tion I  seriously  doubt  whether  this  would 
binder  or  obstruct  any  voter  in  the  exercise 
of  the  elective  franchise.  XSvery  one  who  has 
observed  the  degree  of  care  and  discrimina- 
tion, or  rather  lack  of  these  qualities,  which 
the  -average  man  ordinarily  employs  before 
he  affixes  his  name  to  petitions,  must  come  to 
the  conclusion  that,  after  obtaining  600  sign- 
ers in  a  few  counties  in  the  more  densely 
populated  portion  of  the  state,  there  would 
be  little  or  no  difficulty  In  filling  the  quota 
from  the  80  or  more  counties  left  to  canvass. 
But  however  this  may  be,  the  possibility 
exists  that  the  r^utation  of  a  candidate  en- 
tirely fitted  and  qualified  for,  and  who  might 
adorn,  the  position,  may  be  so  purely  local 
that  unless  the  voters  of  his  own  immediate 
locality  furnish  the  5,000  names  necessary 
under  the  law,  thousands  of  voters  in  that 
locality  would  be  placed  at  a  serious  disad- 
vantage, as  compared  with  voters  in  other 
parts  of  the  state,  by  being  compelled  to  write 
the  name  of  their  choice  upon  the  official 
ballot.  Instead  of  Its  being  printed  thereon. 
The  contingency  is  In  my  opinion  remote,  but 
it  may  happen.  The  unexpected  often  hap- 
pens. It  is  the  duty  of  the  courts  to  preserve 
and  uphold  every  constitutional  safeguard 
thrown  around  the  exercise  of  the  elective 
franchise,  and  since  the  view  taken  by  the 
majority  is  In  the  direction  of  promoting  and 
preserving  wider  freedom  of  choice,  and  re- 
moves a  hindrance  or  obstruction  to  the  right 
of  selection,  I  concur  In  the  holding  that  thia 


Digitized  by  VjOOQ  l€ 


Nelk) 


STATE  V.  JUNKIN. 


481 


provision  is  dlBcrlnilnatory  and  TOld.  But 
the  limitation  as  to  500  signatureB  only  ap- 
plies- to  Judges  of  the  Supreme  Ck>urt  No 
such  proviaioB  is  made  as  to  other  candi- 
dates,  and  this  single  provision  certainly  was 
not  the  inducement  for  the  passage  of  the 
act.  As  to  all  other  officers  the  majority 
opinion  condemns  the  act  upon  one  ground 
alone,  that  of  the  empty  and  forceless  inhi- 
bition of  free  speech.  I  am.  firmly  convinced 
that  this  alone  is  mere  redundant  matter, 
and  Is  not  of  sufficient  importance  to  Justify 
setting  the  law  aside. 

This  brings  me  to  the  question  of  what  ef- 
fect on  the  whole  law  Is  had  by  excising  both 
of  these  provisions.  It  is  a  fundamental  and 
elementary  proposition  that  under  our  sys- 
tem of  government  what  laws  shall  be  passed, 
what  political  or  governmental  policy  pur- 
sued, or  what  economic  theory  adopted  in 
the  alTairs  of  government,  are  matters  with 
which  the  Legislature  is  alone  concerned,  and 
for  which  it  is  alone  responsible  to  the  peo- 
ple of  the  state.  It  may  be  as  well  to  say  in 
this  connection  that  whether  the  act  was 
passed  by  a  bare  majority  or  whether  it  was 
unanimously  adopted,  whether  the  policy  Is 
new  or  whether  ancient,  whether  its  intent  is 
wise  or  whether  unwise,  whether  passed 
from  partisan  motives  or  not,  and  whether 
the  result  may  prove  to  l>e  good  or  evil,  are 
matters  with  which  the  court  has  no  con- 
cern. Many  laws,  in  fact,  most  of  great  Im- 
portance, have  a  partisan  origin,  and  are  ob- 
noxious to  many  persons;  but  with  this  we 
have  nothing  to  do.  Does  the  law,  or  do 
any  of  its  provisions,  violate  the  Constitu- 
tion? This  Is  the  sole  question.  If  any  por- 
tion of  the  act  does  so,  is  that  portion  such 
an  essential  and  necessary  element  that  its 
elimination  leaves  a  law  incomplete  and  frag- 
mentary, and  which  does  not  accord  with 
the  legislative  purpose  and  intent  and  which 
Is  Incapable  of  enforcement?  It  is  the  duty 
of  the  court  to  construe  and  Interpret  acts 
passed  by  the  Legislature  so  as  to  uphold 
them  It  their  language  reasonably  admits  of 
such  Interpretation,  and  not  to  set  them  aside 
unless  they  clearly  contravene  the  constitu- 
tional limitations  upon  legislative  power.  All 
doubts  must  be  resolved  in  favor  of  the  stat- 
nte,  and  all  presumptions  are  that  the  Leg- 
islature passed  a  valid  act  and  kept  within 
its  constitutional  powers.  As  a  -corollary,  if 
a  part  of  a  statute  falls  as  being  obnoxious 
to  the  limitations  of  that  Instrument,  if,  aft- 
er the  elimination  of  the  objectionable  part, 
enough  of  the  law  remains  so  that  the  in- 
tention of  the  Legislature  may  t>e  carried 
ont,  and  the  desired  end  and  purpose  of  the 
enactment  accomplished,  the  act  may  stand. 
These  propositions  are  so  elementary  that 
citation  of  anthorities  is  needless;  and,  in- 
deed, these  are  the  canons  recognized  In  the 
majority  opinion.  I  agree  with  the  lan- 
goage  of  Judge  Holcomb,  quoted  in  the  ma- 
jority opinion,  ttmt  "the  language  found  in 
the  invalid  portion  of  the  act  can  have  no 
legal  effect  for  any  purpose  whatever,"  and 
122N,W.-81 


with  the  language  of  the  majority  opinion 
that  "what  remains  must  express  the  legisla- 
tive will,  independently  of  the  void  part, 
since  the  court  has  no  power  to  legislate." 

Tested  by  this  rule,  does  "what  remains 
express  the  legislative  will"?  I  am  convinc- 
ed that  there  Is  no  difficulty  with  the  law  in 
this  respect  After  eliminating  the  prohibi- 
tion of  free  speech  and  the  provision  limiting 
the  number  of  signatures  for  the  office  of 
Supreme  Judge,  we  find  an  act  which  in  sub- 
stance provides  that  candidates  for  Judicial 
and  educational  offices  shall  be  nominated  by 
petition,  and  not  at  primary  elections,  pre- 
scribing the  number  of  signatures  to  entitle 
the  candidate  to  the  printing  of  his  name  up- 
on the  official  ballot,  and  providing  that  the 
names  abali  be  printed  thereon  without  party 
designation.  I  see  no  obstacle  to  the  car- 
rying out  of  these  provisions.  I  am  of  the 
opinion  that  since  the  entire  control  of  the 
printing  of  the  official  ballot  has  been  placed 
in  the  hands  of  the  public  authorities,  and 
since  if  any  candidate  should  "be  nominated, 
indorsed,  recommended,  censured,  criticised, 
or  referred  to"  by  any  political  party  or  i>o- 
iitlcal  convention,  this  could  have  no  possible 
effect  upon  the  printing  of  any  name  or  par- 
ty designation  upon  the  official  ballot,  the 
declared  end  and  purpose  of  the  act  to  re- 
move the  election  of  candidates  for  such  of- 
fices from  the  domain  of  party  politics  may 
be  accomplished  so  far  as  it  may  be  done 
among  a  free  people.  The  Legislature  can- 
not prevent  free  speech;  but  It  can  control 
and  regulate  the  official  ballot  and  the  man- 
ner of  selection  of  names  of  candidates  to 
be  printed  thereon.  It  has  the  right  to  do 
so  In  such  a  manner  as  tcr  remove,  as  far  as 
it  may  consistent  with  constitutional  rights, 
certain  offices,  or  all  offices,  if  It  chooses, 
"from  the  domain  of  partisan  politics,"  if  in 
its  Judgment  It  believes  it  to  be  for  the  best 
interests  of  the  state.  It  cannot  abolish  par- 
ties, nor  prevent  their  formation;  It  cannot 
pi^vent  the  free  and  open  discussion  of  the 
qnaliflcations  and  fitness  for  office  of  candi- 
dates, either  by  newspapers,  individuals,  or 
assemblages  of  citizens,  whether  in  church, 
mass  meeting,  or  political  convention;  but  it 
has  the  undoubted  right  to  mitigate,  if  It 
can,  any  evils  that  it  believes  to  flow  from 
nominations  by  political  parties,  so  long  as 
it  acts  in  such  a  manner  that  there  shall  be 
no  Infringement  upon  the  requirement  of  the 
Constltntlon  that  "ail  elections  shall  be  free; 
and  there  shall  be  no  hindrance  or  impedi- 
ment to  the  right  of  a  quallfled  voter  to  exer- 
cise the  elective  franchise."    Article  1,  |  22. 

I  believe  that,  with  the  excision  of  the  im- 
material and  unessential  provisions  mention-* 
ed,  the  law  is  still  in  accordance  with  the 
legislative  purpose  and  Intent,  and  with  the 
Constitution  of  the  state;  that  these  portions 
may  be  declared  invalid,  and  the  remainder 
of  the  statute  upheld  as  a  valid  exercise  of 
legislative  power.  For  these  reasons,  I  must 
dissent  from  the  conclusion  reached  that  the 
law  Is  altogether  void. 


Digitized  by 


L-oogle 


482 


122  MORTHWBSTBRN  BEFOBTEK. 


(S.D. 


ACME  HARVESTING  MACH.  GO.  t. 
HINKLET  et  al. 

(Supreme  Court  of   South  Dakota.     June  26> 
1909.) 

1.  ExECxmow   a  40*)— Pbopebtt   Subject- 
Judgment— "Pkbsonai,  Pbopebtt." 

A  judgment  is  "personal  property,"  and 
therefore  subject  to  levy  and  sale  on  ezecutinn, 
as  provided  by  Rev.  Code  Ciy.  Proc.  g§  336, 
MO. 

[Ed.  Note.— For  other  cases,  see  Execution, 
Cent.  Dig.  {  65;    Dec  Dig.  {  49.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  6,  pp.  534ft-5358;    vol.  8,  p.  7753.] 

2.  Execution    (8   49*)—Levy— Judgment. 

A  judgment  is  not  subject  to  execntioa 
except  by  authority  of  statute  and  in  strict  ac- 
cordance with  the  method  prescribed. 

[Ed.  Note.— For  other  cases,  see  Execution, 
Cent.  Dig.  t  65;   Dec.  Dig.  i  49.*] 

;t.  Taxation  ((  584*)— Personal  Taxes— Re- 

00  VEBY— Action. 

An  action  will  not  lie  to  recover  personal 
taxes  except  under  Laws  1909,  p.  308,  c.  209, 
providing  for  actions  to  collect  delinquent  taxes 
against  nonresidents  bavine  no  property  with- 
in the  state;  such  personal  taxes  being  other- 
wise collectible  only  by  distress  and  sale,  as 
provided  by  Rev.  Pol.  Code,  i  2162. 

[Ed.    Note.— For   other   cases,    see   Taxation, 
Cent.  Dig.  {  1183;    Dec.  Dig.  g  584.*] 
4.  Taxation  ({  576*)  —  Pebsonal  Taxes  — 

Collection— Levy  on  Judgment. 

A  judgment  in  favor  of  a  taxpayer,  though 
personal  proi>erty,  is  intangible  and  cannot  be 
taken  or  levied  on  in  distress  proceedings  to 
recover  taxes  owing  by  the  judgment  creditor. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  S  1155;    Dec.  Dig.  |  576.*] 

.').  Taxation  (§  576*)^OLLEcnoN— Distbess. 
Distress  for  the  collection  of  taxes  is  not 
a  judicial  process,  and  hence  only  such  prop- 
erty can  be  distrained  as  is  tangible  and  capa- 
ble of  seizure  and  sale. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.   i  1155;    Dec.   Dig.  {  676.*] 

Appeal  from  Circuit  Court,  Marshall 
County. 

Action  by  the  Acme  Harvesting  Machine 
Company  against  W.  L.  Hlnkley  and  others. 
From  an  order  overruling  a  demurrer  to 
plaintiff's  complaint,  defendants  appeal.  Af- 
firmed and  remanded. 

Byron  Abbott  and  Otto  L.  Kaas,  for  appel- 
lants.    Sears  &  Potter,  for  respondent. 

SMITH,  J.  This  is  an  appeal  from  an 
order  overmling .  a  demurrer  to  plaintiff's 
complaint.  The  complaint  alleges,  in  sub- 
stance: That  in  the  month  of  January,  1905, 
'he  Acme  Harvester  Company,  a  foreign 
corporation,  obtained  a  Judgment  in  the  clr- 
<-iiit  court  of  Marshall  county  against  one 
Hlukley  for  $1,071.26;  that  at  the  time  said 
Judgment  was  entered  there  were  unpaid 
personal  property  taxes  for  six  years  preced- 
ing against  the  Acme  Harvester  Company  in 
Marshall  county,  amounting  to  $94.36;  that 
■m  December  6,  1905,  a  warrant.  Issued  out 
of  the  office  of  the  county  treasurer,  was 


placed  in  the  hands  of  the  sheriff,  authoriz- 
ing and  directing  him  to  collect  such  delin- 
quent taxes  ont  of  the  po'sonal  property  of 
the  Acme  Harvester  Company;  that  tbe 
sherlir,  in  tbe  execution  of  said  tax  warrant, 
undertook  to  levy  upon  tbe  said  judgment 
by  serving  a  notice  of  levy  on  the  attorney 
who  recovered  the  Judgment  and  filing  a 
copy  of  such  notice  with  the  clerk  of  the  cir- 
cuit court;  that  on  December  11,  1905,  tbe 
sheriff  sold  said  judgment  to  one  Lee  for 
$50  and  filed  a  certificate  of  such  sale  with 
the  clerk  of  the  circuit  court;  and  that  on 
December  12,  1905,  said  purchaser,  Lee,  filed 
a  satisfaction  of  said  Judgment  in  the  office 
of  the  clerk  of  court.  The  defendants  Kass 
and  Guy  were  sureties  on  an  undertaking 
given  by  Hlnkley  on  appeal,  and  the  defend- 
ants Amphlett  and  Wilson  were,  respective- 
ly, clerk  of  court  and  treasurer  of  Marshall 
county.  The  plaintiff  prays  that  the  satis- 
faction of  the  Judgment  fentered  by  the  pur- 
chaser, Lee,  on  December  12,  1905,  be  set 
aside  to  the  end  that  execution  may  issue 
on  said  Judgment  against  Hlnkley,  the  Judg- 
ment creditor.  All  the  defendants  Join  in  a 
demurrer  to  the  complaint,  which  was  over- 
ruled, and  defendants  appeal. 

The  demurrer  was  based  upon  threo 
grounds;  but  In  the  view  we  take  of  this 
case  it  is  only  necessary  to  consider  the  first, 
viz.,  that  the  attempted  levy  of  the  sherifT 
upon  the  Judgment,  under  the  tax  warrant, 
was  wholly  and  absolutely  void.  That  a 
Judgment  is  personal  property  and  is  subject 
to  levy  and  sale  on  execution  Is  clear.  Sec- 
tions 336,  340,  Rev.  Code  Civ.  Proc;  Mc- 
Laughlin V.  Alexander,  2  S.  D.  226,  49  N.  W. 
99.  But  a  Judgment  is  not  leviable  except 
by  authority  of  such  statute,  and  such  mode 
of  levy  must  be  strictly  pursued.  Section 
98,  c.  28,  p.  65,  Laws  1897  (section  2162,  Rev. 
Pol.  Code),  provides:  "No  demand  of  taxes 
shall  be  necessary  in  order  to  fix  tbe  liabil- 
ity of  tbe  person  against  whom  they  are  as- 
sessed, but  it  shall  be  tbe  duty  of  every  per- 
son subject  to  taxation  under  the  law  to  at- 
tend at  the  office  of  the  treasurer  having 
charge  of  the  collection  of  such  taxes  and 
pay  his  taxes ;  and  if  any  person  neglect  so 
to  attend  and  pay  his  taxes  until  after  the 
first  day  of  February  in  the  year  next  suc- 
ceeding the  levying  of  the  taxes,  such  treas- 
urer is  directed  and  required  to  collect  the 
same  by  distress  and  sale.  •  •  • "  That 
an  action  will  not  lie  for  recovery  of  personal 
taxes  has  be%i  repeatedly  held  by  this  court. 
Brule  Co.  v.  King,  11  S.  D.  294,  77  N.  W.  107; 
Danfortb  v.  McCook  Co.,  11  S.  D.  258,  76  N. 
W.  040,  74  Am.  St.  Rep.  808.  And  in  Hanson 
Co.  T.  Gray,  12  S.  D.  124,  80  N.  W.  175,  76 
Am.  St  Rep.  501,  the  question  was  again  re- 
examined and  the  former  decisions  adhered 
to.  These  cases  fully  establish  the  doctrine 
in  this  state  that  the  collection  of  personal 
taxes  by  distress  and  sale  is  the  only  and 


•For  other  cmm  im  sam*  topic  and  ■•etioo  NDMBKR  in  Doc.  *  Am.  Digs.  1907  to  data,  *  Raportor  Indazu 


Digitized  by  VjOOQ  IC 


S.DO 


ACME  HARVESTlIsG  MAOfl.  CO.  v.  HINKLKY. 


db3 


ezdualTe  method  of  procedure.  It  may  be 
proper  to  note,  however,  that  the  leglsla- 
tive  assembly,  by  chapter  209,  p.  308,  Laws 
1909,  has  expressly  authorized  county  treas- 
urers to  maintain  an  action  in  the  circuit 
court  to  collect  delinquent  personal  property 
taxes  against  any  person  who  Is  not  a  resi- 
dent of  the  county  and  has  no  property  there- 
in, and  this  proceeding  is  applicable  to  all. 
taxes  which  hare  theretofore  been  levied; 
but  this  enactment  in  no  way  affects  the  case 
now  under  consideration. 

It  is  contended  by  appellant  that  the  sale 
of  the  judgment  under  the  tax  warrant  was 
legal  and  valid,  and  that  therefore  the  de- 
murrer to  the  complaint  should  have  been 
sustained.  Respondent  contends  that  such 
levy  and  sale  were  absolutely  void  for  two 
reasons:  First,  that  the  Judgment,  which 
conceded  to  be  personal  property,  Is  intan- 
gible property  and  cannot  be  taken  or  levied 
upon  in  distress  proceedings;  second,  that 
said  levy  is  void  because  not  made  in  the 
mode  provided  for  executions  issued  on  Judg- 
ments. We  are  Inclined  to  believe  respond- 
ent is  right  in  his  first  contention,  and  there- 
fore deem  the  second  point  immaterial.  We 
may,  however,  point  out  that  under  the  de- 
<.-lslon  of  this  court  in  McLaughlin  y.  Alex- 
ander, 2  8.  D.  226,  49  N.  W.  99,  the  levy  of 
an  execution  on  a  Judgment,  by  serving  no- 
tice on  the  attorney  and  filing  same  with 
the  clerk,  would  be  invalid;  but  this  ques- 
tion is  not  before  us  for  the  reason  that  the 
law  relating  to  the  collection  of  delinquent 
taxes  does  not  make  the  provisions  of  the 
law  relating  to  levies  upon  attachments  or 
executions  applicable  to  the  collection  of  de- 
linquent taxes  by  distress  and  sale.  No  provi- 
sion Is  found  prescribing  the  mode  In  which 
choses  In  action  may  be  levied  upon  by  the 
tax  collector.  In  Davis  v.  Arledge,  8  Hill  (S. 
a)  172,  80  Am.  Dec.  861,  in  discussing  a  seiz- 
ure of  books  of  account  upon  distraint,  the 
court  says:  "However,  In  the  origin  of  the 
common-law  remedy  of  distress,  it  was  con- 
sidered only  In  the  light  of  a  pledge,  for  the 
ultimate  security  of  the  rent  in  arrears,  or 
rather  for  the  x>erformance  of  the  feudal 
services.  It  has  long  since  ceased  to  be  re- 
garded in  that  light,  and  it  is  now  become, 
by  numerous  statutes,  merely  a  summary 
mode  of  enforcing  the  payment  of  rent,  by 
sale  of  the  tenant's  effects.  Now  books  of 
account  are  not  susceptible  of  this  process. 
There  is  no  provision  in  any  known  statute 
by  which  tbey  can  be  appraised,  sold,  or  as- 
signed to  the  landlord,  and.  Indeed,  they  are 
not  goods  and  chattels  In  the  ordinary  sense 
of  the  word,  but  merely  evidences  of  debt, 
choses  In  action,  which  we  think  have  nev- 
er been  held  liable  to  distress  for  rent,  any 
more  than  to  be  taken  In  execution." 

A  distress  Is  not  a  Judicial  process.  Ross 
r.  Holtzman,  8  Cranch,  C.  C.  391,  Fed.  Cas. 
N'o.  12.07.'5.     A  tax  collector  derives  his  au- 


thority to  sell  from  the  statute.  No  author- 
ity to  sell  existed  at  common  law.  Caldwell 
v.  Eaton,  6  Mass.  399.  Section  2180,  Rev. 
Pol.  Code,  provides  that  delinquent  taxes 
may  be  collected  "by  seizure  of  personal 
property  of  such  person.  •  •  •  If  the  prop- 
erty so  distrained  cannot  be  sold  for  want  of 
bidders,  the  treasurer  shall  return  a  state- 
ment of  the  fact,  and  return  the  property  to 
the  possession  of  the  person  from  whom  he 
took  the  same.  •  •  •  "  This  statute  plain- 
ly contemplates  the  actual  manual  seizure  of 
the  property  distrained,  and  its  sale,  orTre- 
turn  to  the  person  from  whom  it  was  taken. 
"Distress"  at  common  law  is  said  to  be  "the 
taking  of  a  personal  chattel  out  of  the  pos- 
session of  a  wrongdoer,  into  the  custody  of 
the  party  injured,  to  procure  satisfaction  of 
the  wrong  committed."  "The  act  of  takl^ 
possession  of  personal  property  to  hold  as  a 
pledge  for  the  payment  of  a  debt,  the  dis- 
charge of  a  duty  or  for  reparation  of  some 
Injury  done."  14  Cyc.  623.  Therefore  noth- 
ing can  be  taken  under  a  distress  but  tangi- 
ble property  capable  of  seizure  and  sale. 
Therefore  choses  in  action  cannot  be  taken. 
Mitchell  V.  Coates,  47  Pa.  .202.  "Hence  it 
follows  that  unless  personal  property  Is  of 
that  character  and  so  situated  that  actual 
possession  thereof  can  be  taken,  or  there  Is 
some  statutory  provision  for  distraining  it. 
without  taking  such  possession,  it  cannot  hv 
distrained  at  all."  J.  W.  Barnes  v.  B.  ,C. 
Hall,  65  Vt.  418.  The  same  doctrine  is  e^ual 
ly  applicable  to  a  distress  for  nonpayment 
of  rates  or  taxes.  Smith  y.  Atkins,  18  Vt. 
461.  In  Barnes  v.  Hall,  supra,  an  attempt 
was  made  to  levy  upon  and  sell  bauk  stock 
for  delinquent  taxes.  The  court  says:  "Said 
section  provides  that  the  capital  stock  of  pri- 
vate corporations  may  be  taken  and  sold  on 
execution  like  other  personal  property,  and 
how  it  shall  be  done;  but  it  does  not  include 
tax  warrants  any  more  than  did  the  statute 
providing  for  taking  property  on  'a  writ  of 
attachment  or  execution'  by  leaving  a  cop,v 
in  the  town  clerk's  office.  Although  a  fax 
warrant  Is  In  the  nature  of  an  execution.  It 
Is  not  an  'execution,'  as  the  terms  are  used 
In  our  statute  or  understood  in  common  par- 
lance; and  although  this  court  always  has 
been,  and  still  Is,  desirous  of  upholding  a:nd 
carrying  into  effect, all  laws  for  the  assess- 
ment and  collection  of  taxes,  yet  it  cannot  go 
beyond  the  law  and  commit  the  error  of  Ju- 
dicial legislation.  The  result  Is,  we  regard 
this  as  casus  omissus,  and  that  prior  to  the 
passage  of  St.  1882,  No.  11,  {  2,  expressly 
providing  therefor,  there  was  no  mode  pro- 
vided by  law  for  taking  and  selling  bauk 
stock  on  a  tax  warrant.    •    •    •  » 

The  order  of  the  trial  court  oy»rulIng  the 
demurrer  Is  sustained,  and  the  ease  remand- 
ed. 

McCOY,  J.,  taking  no  part  In  the  decision. 


Digitized  by 


Google 


481 


122  NORTHWESTERN  REPORTEa 


(Minn, 


ORBSSr  T.  REPUBLIC  CREOSOTING  CO. 

et  al. 
(Supreme  Court  of  Minnesota.    July  9,  1909.) 

1.  SuFFiciEMcr  01  Complaint. 

Plaintiff,  appointed  to  inspect  creosoted 
blocks  to  be  furnished  by  defendant  to  a  city, 
was  alleged  to  have  been  assaulted  and  beaten 
by  defendant's  engineer  while  he  was  perform- 
ing his  duties  on  defendant's  premises,  pursuant 
to  a  conspiracy  between  the  master  and  his 
servant  to  make  it  impossible  for  plaintiff  to 
fulfill  his  employment  obligations,  whereby 
plaintiff  lost  his  position.  A  majority  of  the 
court  is  of  opinion  that  the  complaint  was  suf- 
ficient to  justify  a  recovery  from  the  master  for 
assaults  and  assaults  and  batteries  by  the  serv- 
ant 

2.  Mastkb  and  Sebvant  (f  302*)— Liabilitt 

rOB    INJTTBT    TO    THIBD    PEBSONS— ASSAULT 
AND  BATTEBT. 

The  evidence  Justified  the  trial  court  in 
submitting  five  causes  of  action  for  assault  and 
assault  and  battery.  The  place  at  which  plain- 
tiff worked  became  "a  sort  of  suppressed  vol- 
cano," because  of  quarrels  between  him  and 
defendant's  engineer.  Defendant  was  advised  of 
an  assault  and  of  a  battery  upon  plaintiff  by 
the  servant  More  serious  encounters  followed. 
The  trial  court  instructed  the  jury  that  the 
defendant  was  liable  for  the  wrongful  conduct 
of  his  servant  in  the  course  of  his  employment 
and  in  furtherance  of  his  master's  business,  and 
sustained  plaintiff's  verdict  against  the  mas- 
ter for  the  assanlt  of  the  servant  The  concln- 
.sion  of  the  trial  court  is  approved. 

[Ed.  Note.— For  other  cases,  see  Master  and 
:Servant,  Cent.  Dig.  {  1221 ;   Dec.  Dig.  §  302.*] 

3.  A8SAUI,T  AND  BATTEBT   (J   9e*)— ClVIL  BB- 

SPONSiBiLrrT—lNSTBuoTiONS— ''Assault." 
An  instruction  defining  an  actionable  "as- 
sault" as  a  wrongfol  threat  to  do  bodily  vio- 
lence to  another,  with  the  present  ability  of 
the  one  who  threatens  to  cari?  such  threat  into 
effect,  held  sufficient  (citing  1  Words  and  Phras- 
es, ^). 

[Ed.  Note. — For  other  cases,  see  Assanlt  and 
Battery,  Cent  Dig.  {  142;    Dec.  Dig.  i  96.*] 

4.  Appeal    and    Ebbob    (i    215*)— Instbuo- 
TiON— Objections  in  Trial  Coubt. 

The  omission  of  a  proper  qualification  of 
a  statement  of  law  in  an  instruction  is  not 
necessarily  reversible  error;  and,  if  it  is  desired 
to  prevent  possible  misapprehension  by  the  jury 
because  of  such  omission,  the  trial  court's  at- 
tention should  be  specially  called  to  the  matter. 

[Ejd.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  H  1309-1314;  Dec.  Dig.  S 
215;*    Trial,  Cent  Dig.  H  683-685.  695.] 

Jaggard  and  Elliott  JJ.>  dissenting  in  part 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Hennepin 
County;    Andrew  Holt, -Judge. 

Action  by  Charles  R.  Cressy  against  the 
Republic  Creosotlng  Company  and  others. 
Judgment  for  plaintiff,  and  defendant  Re- 
public Creosotlng  Company  appeals.  Af- 
firmed. 

A.  B.  Jackson  and  Oeo.  W.  Armstrong,  for 
appellant.  John  P.  Devaney  and  Oeo.  B. 
Leonard,  for  respondent. 

JAGOARD,  J.  Defendant  and  appellant 
•contracted  to  deliver  to  a  city  certain  creo- 
soted paving  blocks,  subject  to  test,  Inspec- 


tion, and  rejection.  Plaintiff  and  respondent 
was  appointed  Inspector,  to  see  that  the  cre- 
osotlng mixture  In  the  treatment  tank  con- 
formed to  contract  and  that  the  blocks  were 
properly  Impregnated.  In  June  defendant's 
engineer,  Gilmore,  and  Its  manager.  Van  Haf- 
ten,  contended  that  plaintiff's  mode  of  com- 
putation was  not  fair  to  the  company.  This 
and  other  matters  caused  friction  between 
plaintiff  and  Gilmore.  Gilmore  claimed  that 
plaintiff  was  meddlesome,  fault-finding,  sus- 
picious, and  Insulting  In  his  demeanor.  Plain- 
tiff claimed  that  Gilmore  was  violent  In  his 
language  and  hostile  and  threatening  In  his 
conduct  and  attitude  toward  him.  In  the  lat- 
ter part  of  August,  the  fireman  called  Van 
Haf  ten  to  the  plant  by  telephone,  because  Gil- 
more threatened  to  quit,  saying  that  he  "would 
not  stand  for  [plaintiff's]  abuse  and  work 
there."  Van  Haften  told  both  Gilmore  and 
plaintiff  that  "they  must  come  together  and 
agree,  some  way,  as  they  couldn't  interrupt 
the  business."  On  September  10th  plaintiff 
and  Gilmore  came  to  blows.  Each  struck  the 
other  with  Iron  pipe.  According  to  the  plain- 
tiff, whose  version  for  present  purposes  must 
be  accepted,  Gilmore  was  the  aggressor  and 
struck  the  first  blow.  Later  in  the  day  plain- 
tiff returned  with  a  friend.  Gilmore  "grab- 
bed hold"  of  his  friend ;  Gllmore's  son,  of 
flalntlff.  On  being  Informed  of  the  affair. 
Van  Haften  "established  a  modus  vldendl,  or 
laid  down  the  regulation  that  plaintiff  and 
Gilmore  should  not  be  Inside  the  retort  house 
together  without  the  presence  of  a  third  per- 
son." About  September  20th  plaintiff  visited 
the  plant  with  another  student  and  wished 
to  enter  the  retort  house,  for  the  purpose,  he 
says,  of  gauging  the  drip  tank,  and  Gilmore 
refused  him  admission,  whereupon  the  two 
young  men  went  to  the  rear  door,  which  Gil- 
more says  was  nailed  up.  They  opened  the 
door,  and  Gilmore  appeared  with  a  monkey 
wrench  In  his  hand,  which  he  held  in  a 
threatening  maimer  and  told  Cressy  he  could 
not  come  In.  The  place  became  "a  sort  of  a 
suppressed  volcano."  Finally  an  encounter 
took  place  In  which  "guns"  figured  freely. 
Gilmore  struck  plaintiff  with  his  pistol,  one 
blow  on  the  head,  and  another  on  his  raised 
hand,  "to  get  even  on  old  scores,  more  than 
anything  else,  personally."  Plaintiff  then 
sued  defendant  company.  Its  general  mana- 
ger. Van  Haften,  and  Gilmore.  The  Jury  re- 
turned a  verdict  of  $600  against  defendant 
company  and  Gilmore.  This  the  court  re- 
duced to  |200.  Defendant  company  alone  ap- 
peals. °    . 

1.  The  trial  court  held  aa  a  matter  of  law 
that  there  was  no  liability  because  of  a  con- 
spiracy to  Injure  plaintiff  In  his  employment 
It  expressed  "great  doubt  about  the  complaint 
being  sufficient  for  assault  and  battery."  The 
majority  of  the  court  have  concluded  not  to 
disturb  the  determination  of  the  trial  court 
that  the  verdict  should  be  taken,  and,  when 


-*For  other  cues  see  same  topic 'and  section  NUUBER  In  Deo.  ft  Am.  Dlgi.  VXn  to  data,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  IC 


Minn.) 


0RES8Y  V.  REPUBLIC  CRE080TIXG  CO 


485 


rendered,  should  stand.  The  complaint  fully 
alleged  the  assaults,  and  the  assaults  and 
batteries.  The  defendant  Interposed  a  full 
defense.  The  questions  were  fully  litigated 
upon  their  merits.  No  suggestion  has  been 
made  that  any  evidence  was  introduced  which 
could  not  have  been  introduced  if  the  action 
had  been  simply  in  trespass  vi  et  armls. 
]Every  presumption  is  in  favor  of  the  verdict. 
The  objection  is  technical.  It  conforms  to 
the  spirit  of  correct  pleadings,  and  conduces 
to  end  of  litigation,  to  disregard  the  alle- 
gations of  conspiracy,  in  so  far  as  they  ex- 
ceed a  charge  that  the  master  personally 
joined  in  the  wrongdoing  of  defendant's  serv- 
ant; that  is,  in  order  to  make  the  master 
liable,  plaintiff  must  have  alleged  and  shown 
cither  or  both  the  following  facts,  namely: 
(1)  That  the  master  was  an  actual  partici- 
pant in  the  wrong  to  the  plaintiff;  (2)  that 
for  the  conduct  of  his  servant  the  mas- 
ter was  liable,  within  the  rules  of  law  on 
that  subject,  although  not  taking  part  per- 
sonally in  his  servant's  wrongdoing.  The  al- 
legations as  to  conspiracy  tended  to  show 
that  the  master  was  responsible  for  the  serv- 
ant's conduct  because  of  his  personal  wrong, 
not  merely  because  of  the  relationship  in 
force  between  him  and  his  servant 

From  this  conclusion  the  writer  of  this 
opinion  and  ELLIOTT,  J.,  dissent  The  sys- 
tem of  pleading  is  not  to  be  worshipped  as  a 
fetich.  A  lawsuit  Is  designed  to  determine 
the  substantial  merits  of  the  controversy, 
and  not  merely  to  observe  the  requirements 
of  artificial  rules  of  procedure.  None  the 
less  it  is  possible  to  go  too  far  in  abolishing 
orderly  procedure  by  means  of  recognized 
forms  of  pleading.  See  Miner  v.  Bradley,  22 
Pick.  (Mass.)  457.  While  this  is  a  border 
case,  the  complaint  stated  clearly  and  dis- 
tinctly a  cause  of  action  for  cousplracy  to 
maliciously  interfere  with  plaintiff's  employ- 
ment The  allegations  of  assault  must  be 
regarded  as  mere,  but  proper,  incidents  set- 
ting forth  the  means  by  which  the  conspiracy 
was  executed.  To  disregard  the  allegations 
of  conspiracy  does  injustice  to  the  language 
of  the  complaint,  used  intentionally  and  sys- 
tematically. So  to  do  is  at  variance  with  the 
natural  and  proper  rule  that  a  complaint 
must  proceed  upon  a  definite  theory,  and  the 
cause  must  be  treated  upon  the  theory  con- 
structed by  the  pleadings,  and  such  a  judg- 
ment as  the  theory  selected  warrants  must 
be  rendered,  and  no  other  or  a  different  one. 
1  Enc.  P.  &  P.  195.  Defendant  could  not 
have  corrected  the  pleadings  by  motions  or 
have  prevailed  on  demurrer.  Jones  v.  Morri- 
son, 81  Minn.  1,40  at  page  143,  16  N.  W.  854 ; 
Raymond  v.  Sturges,  23  Conn.  134 ;  Van  Horn 
V.  Van  Horn,  52  N.  J.  Law,  284,  20  Atl.  485, 
10  L.  R.  A.  184 ;  Bingham  v.  Lipman,  40  Or. 
3CS,  67  Pac.  98!  Emerick  v.  Cattle  Co.,  17 
S.  D.  270,  96  N.  W.  93;  Oliver  v.  Perkins,  92 
Mich.  304,  52  N.  W.  G09 ;  Miller  v.  Bayer,  94 
TVis.  123,  68  N.  W.  869 :  Hines  v.  Whitehead, 


124  Iowa,  262,  99  N.  W.  1064;  Murray  v. 
McGarlgle,  69  Wis.  483,  34  N.  W.  622;  Plsh- 
er  V.  Schuri,  73  Wis.  370,  41  N.  W.  527. 

2.  The  court  submitted  "five  causes  of  ac- 
tion for  assaults  and  assaults  and  batteries." 
In  three  of  these  instances  no  personal  vio- 
lence was  used.  Defendant  insists  that  they 
were  'lassaultless  assaults" ;  for  example,  as 
to  one  of  them,  "the  complaint  pictures  Gil- 
more  as  standing  for  .nine  days  with  the 
monkey  wrench  brandished  aloft,  enlighten- 
ing plaintiff  as  to  his  danger,  like  the  torch 
of  Liberty  on  Bedloe's  Island,  or  the  flaming 
sword  which  kept  Adam  out  of  the  garden 
of  Eden."  An  examination  of  the  record, 
however,  has  satisfied  us  the  plaintiff  suffi- 
ciently proved  an  assault 

The  charge  of  the  trial  court  In  this  re- 
spect was  not  as  complete  as  It  might 
properly  have  been.  The  learned  trial  Judge 
defined  an  actionable  assault  to  the  Jury  in 
these  words:  "By  an  assault  is  understood 
in  law  a  wrongful  threat  to  do  bodily  vio- 
lence to  another,  and  with  the  present  abil- 
ity of  the  one  who  threatens  to  carry  such 
threat  into  effect"  Defendant  insists  that 
this  definition  omits  the  very  essential  ele- 
ment of  "actual  intention  on  the  defend- 
ant's part  to  carry  the  threat  into  effect," 
or  "the  putting  In  motion  such  physical 
force  as  to  create  a  well-founded  apprehen- 
sion of  physical  injury."  3  Cyc.  1020-1026, 
and  cases  cited.  This  definition  was,  bow- 
ever,  as  full  as  many  statements  which 
have  received  Judicial  sanction.  See  1 
Words  and  Phrases,  532.  Cf.  8  Cyc  1020- 
1026.  So  far  as  the  charge  wen^  it  was 
undoubtedly  correct  The  omission  of  a 
proper  qualification  in  a  statement  of  law  is 
not  necessaWly  reversible  error.  In  such  a 
case,  if  it  is  desired  to  prevent  possible  mis- 
apprehension on  the  part  of  the  Jury  from 
such  omission,  the  attention  of  the  court 
should  be  specially  called  to  the  matter. 
See  Torske  v.  Lumber  Co.,  86  Minn.  276- 
278,  90  N.  W.  532.  This,  defendant  here  did 
not  do. 

3.  The  question  then  arises  whether  the 
defendant  master  was  liable  for  the  wrongs 
of  his  servant  We  are  of  opinion  that 
there  was  no  error  in  the  action  of  the  trial 
court  on  this  point,  nor  in  refusing  to  dis- 
turb the  finding  of  the  jury  pursuant  to 
the  charge  of  the  court  The  trial  court 
charged  that  a  verdict  could  be  rendered 
for  the  servant's  wrongdoing  by  virtue  of 
the  relationship  only  in  case  Gilmore's 
wrongdoings  were  in  the  line  of  the  serv- 
ant's duty  and  the  scope  of  the  servant's 
employment  Subsequently  it  submitted  the 
question  whether  Gilmore's  action^  were  in 
furtherance  of  his  master's  business.  Aft- 
er enumerating  what  the  Jury  should  con- 
sider in  that  connection,  the  court  added: 
"This  includes  such  scope  as  his  employ- 
ment originally  was,  but  also  within  such 
scope  as  you  may  find  from  the  evidence  it 
was  extended  by  reason  of  acquiescence,  of 


Digitized  by  VjOOQ  l€ 


486 


122  NORTHWESTBRN  RBPDRTKR. 


(Minn. 


what  Gdmore  was  doing  after  knowledge 
tUereof  by  the  •  ♦  *  manager."  The  find- 
ing of  the  Jury  waa  therefore  to  the  effect 
that  Oilmore'B  wrongdoing  was  In  the  fur- 
therance of  his  master's  business.  The  case, 
therefore,  on  the  jurisdiction,  does  not  come 
within  the  dictum  In  Merrill  t.  Coates,  101 
Minn.  43,  111  N.  W.  836,  that  "If  the.assault 
'^a  a  purely  personal  quarrel,  and  not  In 
tfiQ  furtherance  of  defendant's  Interests, 
iilaintiff  Is  not  entitled  to  recover,"  but  Is 
within  the  rule  laid  down  In  that  case. 
This  consideration  also  differentiates  Johan- 
•  son  V.  P.  F.  Co.,  72  Minn.  405,  75  N.  W.  719, 
in  which  the  court  held  as  a  matter  of  law 
that  assault  was  as  a  matter  of  law  "purely 
a:  personal  matter"  between  plaintiff  and 
defendant.  In  the  case  at  bar  the  court 
construed,  not  merely  the  allegation  of  the 
complaint,  but  the  testimony  offered,  that 
the  wrong  was  within  the  scope  of  defend- 
ant's employment 

This  conclusion  is  the  more  easily  reached 
In'  view  of  the  testimony  tending  to  show 
knowledge  of  the  defendant  company  of 
danger  to  the  plaintiff  from  violence  by  Its 
servant.  The  authorities  generally  have  lib- 
erally defined  the  rights  of  persons  lawfully 
upon  the  premises  of  another,  and  have 
strictly  enforced  the  duty  of  the  owner  of 
premises  to  protect  such  persons  from  avoid- 
able harm.  More  specifically  have  they  held 
such  owner  or  proprietor  responsible  in  dam- 
ages for  the  infringement  of  such  rights 
find  the  violation  of  such  duties  by  servants 
on  the  premises,  alike  whether  the  servant 
acted  willfully,  maliciously,  or  negligently, 
and  often  when  in  no  natural  sense  of  the 
wprds  was  the  misconduct  of  the  servant 
for  the  master's  benefit  or  in  furtherance 
of  the  master's  business.  A  fortiori  this 
rule  applies  where  the  master  has  notice  of 
proclivity  of  his  servants  to  d6  harm.  This 
has  been  applied  in  cases  of  storekeepers 
(Jjtallach  T.  Ridley,  47  Hun,  638,  9  N.  Y. 
Svipp.  922;  Swlnarton  v.  Le'  Boutilller,  7 
Misc.  Rep.  639,  28  N.  T.  Supp.  53,  affirm- 
ed 148  N.  Y.  752,  43  N.  E.  990;  Geraty  v. 
Sfern,  30  Hun  [N.  Y.]  426;  McDonald  v.  F. 
Bros.,  102  Iowa,  496,  71  N.  W.  427);  rail- 
road stations  (Dean  v.  Depot  Co.,  41  Minn. 
360,  43  N.  W.  64,  5  L.  R.  A.  442,  16  Am.  St. 
Rfep.  703;  Indiana  Ry.  Co.  v.  Cooper,  6  Ind. 
App.  202,  33  N.  E.  219 ;  Houston  Ry.  Co.  v. 
Phililo,  96  Tex.  18,  69  S.  W.  994,  59  L.  R.  A. 
;i92,  97  Am.  St.  Rep.  868;  3  Col.  Law  Rev. 
115;  Christian  v.  Hallway  Co.,  90  Ga.  124, 
15  S.  B.  701);  saloon  keepers  (Brazil  v. 
Peterson,  44  Minn.  212,  46  N.  W.  331;  and 
see  Tway  v.  Salvin,  109  App.  Dlv.  288,  95 
N.  Y.  Supp.  653;  Bergman  v.  Hendrlckson, 
106  Wis.  434,  82  N.  W.  304,  80  Am.  St.  Hep. 
47) ;  restaurant  keepers  (Goodwin  v.  Green- 
wood, 16  Okl.  489,  85  Pac.  1115;  Rabmel  v. 
Lehndorff,  142  Oal.  681,  76  Pac.  659,  65  I* 
U.  A.  88,  100  Am.  St.  Rep.  154;  Wade  v. 
Thayer,  40  Cal.  578);  proprietors  of  theaters 


(Drew  T.  Peer,  93  Pa.  234 ;  but  see,  contra, 
Cobb  V.  Simon,  119  Wis.  597,  97  N.  W. 
276,  100  Am.  St.  Rep.  909;  Fairbanks  t. 
Storage  Co..  189  Mass.  419,  75  N.  E.  737,  IS 
L.  R.  A.  [N.  S.]  422,  109  Am.  St.  Rep.  649). 
Xhat  the  master  may  be  held  responsible  to 
licensees  upon  his  premises  for  the  wrong  of 
an  independent  contractor,  see  Corrigan  t. 
Elsinger,  81  Minn.  42-47, 83  N.  W.  492  (store), 
or  of  a  stranger,  see  Curran  v.  Olson,  88 
Minn.  807,  92  N.  W.  1124,  60  L.  R.  A.  733. 
97  Am.  St  Rep.  517  (saloon),  and  Rommel 
V.  Schambacher,  120  Pa.  679,  11  Atl.  779,  6 
Am.  St  Rep.  732  (same).  That  master  may 
also  be  held  responsible  for  an  assault  by  a 
servant  on  a  trespasser,  see  Schmidt  t. 
Vanderveer,  110  App.  Div.  758,  97  N.  Y.  Supp. 
441. 

We  liave  examined  and  considered  the 
other  assignments  of  error,  and  find  none 
which  Justifies  either  discussion  or  reversal 
of  the  order  appealed  from. 

Affirmed. 


VILLAGE}  OF  EXCELSIOR  v.  MINNEAPO- 
LIS &  ST.  P.  S.  RY.  CO. 

(Supreme  Court  of  Minnesota.    July  16,  1909.) 

Railboadb  (I  227*)— PoLicB  Power— RiotTLA- 
noN— Place  of  Stopping  Cabs— Intebub- 
BAH  Railboads. 

A  writ  of  mandamus  was  issued  to  defend- 
ant 8uburt«n  railroad  company  to  compel  it  to 
stop  its  cars  at  a  point  In  the  plaintiff  village. 
Defendant  was  authorized  to  operate  its  lines 
within  the  limits  of  the  village  under  an  ordi- 
nance provision  that  it  ahould  carry  passeDgers 
within  the  village  limits  on  the  .payment  of  the 
specified  fare.  The  village  subsequently  passed 
an  ordinance  requiring  railroad  and  street  cars. 
which  occupied  public  streets  for  the  purpose  of 
operating  upon  and  along  the  same,  to  stop 
such  cars  at  grade  crossings  of  streets  when 
any  persons  required  to  enter  or  alight  from 
such  cars.  It  is  held  that  mandamus  did  not 
lie  to  compel  defendant  to  stop  at  the  designated 
place  because: 

(1)  The  ordinance  was  not  a  legitimate  exer- 
cise of  the  police  power. 

(2)  Defendant's  lines  did  not  In  fact  occupy  a 
street,  and  were  not  located  upon  and  along  a 
street,  but  were  constructed  upon  its  own  right 
of  way. 

(3)  The  ordinance  was  opposed  to  public  pol- 
icy; under  the  general  law,  defendant  was  not 
a  mere  street  railway  comiMny,  but  had  the  le- 
gal status  of  a  suburban  railway  with  the  pow- 
er to  condemn  lands  (Railway  Co.  v.  Manitou 
Forest  Syn.,  101  Minn.  1.S2,  112  N.  W.  13,  fol- 
lowed) ;  the  requirement  that  a  suburban  rail- 
road should  stop  at  every  street  intersection  to 
take  on  and  discharge  passengers  tended  to  de- 
stroy its  usefulness  as  a  carrier  of  passengers 
and  to  destroy  competition  with  steam  railways ; 
and  the  observance  of  the  ordinance  did  not  sub- 
serve public  convenience. 

[Ed.  Notp.— For  other  cases,  see  Railroads, 
Dec  Dig.  {  227.»] 

(Syllabus  by  the  Court.) 

Appeal    from    District    Court,    Hennepin 
County ;    John  Day,  Smith,  Judge. 
Mandamus   by    the   Village   of   Excelsior 


•For  otbtr  can*  tee  sam*  topic  and  Motion  NUMBER  la  D*c.  ft  Am.  Digs.  1907  to  data,  ft  Raportor  tndazat 


Digitized  by 


Google 


Minn.)       VILLAQB  OP  EXCELSIOR  v.  MINNEAPOLIS  &  ST.  P.  8.  BY.  00. 


487 


against  the  Minneapolis  &  St.  Pan!  Snbur- , 
ban  Railway  Company.    From  an  order  8U»- ! 
talnlng  a  demurrer  to  the  answer  and  re- 
turn, defendant  appeals.     Reversed. 
See,  also,  120  N.  W.  S26. 

N.  M.  Tbygeson  and  John  F.  Dahl,  for  ap- 
pellant   Julius  E.  Miner,  for  respondent. 

JAGGARD,  J.  On  the  petition  of  the 
village  of  Excelsior,  the  district  court  issued 
a  writ  of  mandamus  to  the  defendant  and 
appellant  suburban  railway  company.  To  an 
answer   and   return   of   the  defendant   the 

filalntiff  village  demurred  on  the  ground  that 
t  did  not  state  facts  sufficient  to  constitute 
a  defense.  The  demurrer  was  sustained,  with 
leave  to  defendant  to  amend.  This  appeal 
was  taken  from  the  order  to  tliat  effect 

It  appeared  tliat  defendant  was  authoriz- 
ed by  ordinance  to  operate  its  lines  within 
the  limits  of  the  village  under  provisions 
which  included  the  foUowing:  "Sec.  8.  Said 
.Minneapolis  &  St  Paul  Suburban  Railway 
Company,  its  successors  and  assigns,  shall 
have  the  right  to  charge  and  collect  five 
cents,  and  no  more,  for  each  passenger  trav- 
eling on  any  of  said  lines  of  street  railway  or 
parts  thereof,  within  the  village  limits  of 
the  village  of  Eizcelsior;  provided,  however, 
that  the  payment  of  said  five  cents  shall  en- 
title the  passenger  so  paying  the  same  to 
one  continuous  ride  from  any  point  in  the 
village  limits  in  the  village  of  Excelsior  lo- 
cated along  any  of  said  lines  to  any  other 
point  within  the  village  limits  of  the  village 
of  Excelsior,  located  along  any  of  said  lines ; 
provided,  however,  that  no  fare  shall  be  re- 
quired for  children  under  six  years  of  age 
when  traveling  with  or  attended  by  an  adult 
having  paid  one  full  fare."  Subsequently  to 
the  construction  of  defendant's  lines,  the 
Tillage  passed  an  ordinance  which  Is  as  fol- 
lows :  "Any  person,  company,  or  corporation 
driving  or  propelling,  or  requiring  to  be 
driven  or  propelled,  any  railroad  car  or 
street  car  which  occupies  the  public  streets, 
avenues  or  alleys  of  the  village  of  Excelsior 
for  the  purpose  of  operating  upon  and  along 
same,  shall  stop  such  cars  at  any  and  all  of 
the  intersections  or  crossings  of  streets  when 
any  person  or  persons  require  to  enter  or 
alight  from  such  cars,  provided  such  cross- 
ings are  grade  crossings."  It  was  sought  un- 
der this  ordinance  to  compel  defendant  to 
stop  its  car  at  a  place  where  Its  line  in  plain- 
tiff village  was  Intersected  by  George  street 
In  point  of  fact  defendant  was  willing  to  es- 
tablish a  stopping  place  three-fourths  of  a 
mile  distant,  where  its  lines  divided,  and 
one  line  passed  up  Water  street  Within  the 
village  limits  west  of  this  stopping  place  six 
village  streets  intersected  defendant's  tracks. 

The  plaintiff  contends  that  the  ordinance 
requiring  defendant  to  stop  at  George  street 
was  a  legitimate  exercise  of  i)Olice  power. 
For  present  purposes  it  may  be  conceded  that 
the  village  conncll  had  the  authority  to  pass 
a  proper  ordinance  in  the  exercise  of  such 


power.  Such  an  ordinance  must  have  ref- 
erence, however,  to  public  peace  and  safe- 
ty and  the  good  order  of  persons  or  agaudes 
upon  the  streets.  Upon  the  assumption  that 
such  power  existed,  the  village  had  the  right 
to  pass  reasonable  ordinances  regulating,  in- 
ter alia,  the  speed  of  traffic  and  the  stoppage 
of  cars.  Incidentally  such  qrdinances  would 
conduce  to  the  convenience  and  comfort  of  the 
community.  It  by  no  means  follows,  however, 
that  an  ordinance  designed  entirely  for  the 
comfort  and  convenience  of  the  Inhabitants 
is  a  valid  exercise  of  the  police  power.  The 
ordinance  in  question  cannot  by  any  reason- 
able construction  be  regarded  as  the  re- 
sult of  the  exercise  of  the  police  power.  Un- 
der its  terms  cars  are  allowed  to  operate 
without  restriction,  except  "when  any  per- 
son or  persons  require  to  enter  or  alight 
from  such  cars."  The  element  of  danger  to 
users  of  the  highway  is  effectually  Ignored. 
The  right  to  mandamus  based  upon  the  po- 
lice power  must  therefore  be  eliminated. 

The  question  then  arises  whether  the 
terms  of  the  ordinance  applied  to  the  facts 
in  this  particular  case.  The  defendant  urges 
that  their  fair  construction  compels  the  con- 
clusion that  they  do  not  apply.  They  refer 
expressly  to  lines  of  the  defendant  which  oc- 
cupy and  which  are  located  upon  any  public 
street ,  At  the  place  in  question  defendant 
did  not  occupy  a  street — had  not  constructed. 
Its  lines  along  the  street,  but  on  Its  own  right 
of  way.  On  Water  street  it  had  constructed 
its  lines  along  the  street  The  mandamus. 
however,  did  not  purport  to  affect  Water 
street  It  is  true  that  defendant's  lines  cross- 
ed streets  and  alleys;  but  that  fact  did  not 
bring  defendant  within  the  provisions  of  the 
ordinance,  for  it  was  held  In  Railway  Co.  v. 
Manltou  Forest  Syn.,  101  Minn.  132,  112  N. 
W.  13,  that  "the  crossing  of  streets  and  al- 
leys, Incidental  to  constructing  a  railroad  from 
place  to  place,  does  not  constitute  the  occu- 
pancy of  such  streets  or  alleys  for  the  pur- 
pose of  operating  a  railway  thereon,  within 
the  provision  of  this  section  2841,  Rev.  Laws 
1905,  and  a  railroad  company  has  the  right  to 
acquire  the  right  by  condemnation,  under  sec- 
tion 2916,  Rev.  Laws  1905,  a  right  of  way  over 
the  streets  and  alleys  of  cities  and  villages 
and  over  private  property  within  such  limits, 
without  securing  a  franchise  from  the  munic- 
ipal authorities."  There  is  obvious  cogency  in 
this  argument;  but  in  view  of  the  great  im- 
portance of  the  public  question  Involved  we 
feel  unwilling  to  rest  the  decision  on  this 
ground  alone,  or  to  abstain  from  the  deter- 
mination of  the  larger  questions  involved. 

We  are  of  opinion  that  the  contract  with 
the  village  under  which  defendant  operated 
Its  lines  did  not  authorize  the  ordinance.  It 
is  obvious  that  section  8  must  be  reasonably 
construed.  It  Is  clear  that  the  provisions, 
literally  construed,  would  be  void.  An  ordi- 
nance may  require  under  given  conditions 
that  a  street  car  must  stop  at  the  end  of  any 
block,  or  at  the  middle  of  long  blocks,  or  at 


Digitized  by  VjOOQ  l€ 


488 


122  NORTHWESTERN  REPORTER. 


(Minn. 


railroad  crossings,  or  at  places  where  flre 
engines  may .  suddenly  emerge.  But  a  re- 
quirement .  that  a  car  must  stop  at  every 
point  at  wblcb  a  passenger  may  wisti  to  en- 
ter or  alight  would  be  destructive,  not  only 
of  the  purposes  for  which  the  corporation 
was  authorized  to  transact  business,  but 
would  also  completely  demoralize  traflSc,  and 
would  be,  the  authorities  generally  agree, 
without  legal  force.  It  Is  equally  clear  that 
a  proper  construction  of  the  charter  provi- 
sions must  have  reference  to  the  situation  as 
11  whole,  and  be  determined  with  due  regard 
.to  all  relevant  circumstances.  The  subject 
is  not  to  be  regarded  from  a  narrow  or  local 
point  of  view.  The  reasonableness  of  an 
ordinance,  It  is  elementary.  Is  a  question  of 
public  policy.  Public  policy  necessarily  In- 
volves a  consideration  of  a  number  of  Im- 
portant facts  appearing  on  this  record. 

One  of  these  considerations  Is  that  the  re- 
spondent company  has  a  somewhat  anomalous 
legal  status.  Under  the  charter  provisions 
which  have  been  herein  quoted,  it  would  ap- 
pear to  be  a  street  railroad.  In  Rnilroad 
Company  v.  Manltou  Forest  Syn.,  101  Minn. 
132,  112  N.  W.  13  (supra),  however,  It  was 
held  that  defendant  was  not  a  mere  street 
railroad  company,  but  was  organized  to  con- 
struct and  operate  Interurban  railroads  from 
place  to  place,  and  as  such  had  the  right  to 
exercise  the  power  of  eminent  domain,  A 
construction  which  would  give  to  special  leg- 
islation by  a  village  or  city  an  effect  which 
would  render  nugatory  rights  exercisable  un- 
der general  laws  would  be  subject  to  obvious 
and  substantial  objectlous. 

Another  consideration  is  that  the  princi- 
pal business  of  the  respondent  is  to  furnish 
rapid  transportation  of  passengers  between 
various  points  around  Lake  MInuetonka  and 
the  people  of  cities  to  the  east  and  of  the 
surrounding  district  to  the  west.  In  this 
business  respondent  had  the  competition  of 
two  steam  railroads.  If  the  principle  for 
which  the  village  coptends  would  be  adopted. 


respondents  might  be  compelled  to  stop  at 
so  many  street  crossings  as  to  seriously  ham- 
per, and  possibly  to  destroy,  its  competitive 
power.  It  is  clearly  opposed  to  public  pol- 
icy to  secure  to  steam  railroads  monopoly  of 
local  passenger  traffic.  As  Summers,  J.,  said 
in  Townsend  v.  ClrclevlUe,  78  Ohio,  122,  134, 
84  N.  B.  792,  793,  16  L;  R.  A.  (N.  S.)  914: 
"If  every  city  and  village  through  which  such 
a  railway  [as  the  one  at  bar]  passes  may  re- 
quire Its  cars  to  be  stopped  at  every  street 
intersection  to  take  on  or  to  discharge  pas- 
sengers, and  to  serve  the  purposes  of  a  street 
railway,  then  its  usefulness  as  a  means  of 
interurban  transportation  may  be  very  mudi 
limited,  because  so  much  time  will  be  con- 
sumed In  passing  through  cities  and  villages 
that  It  will  be  no  longer  practicable  for  many 
to  travel  In  that  way." 

A  final  consideration  is  that  the  ordinance 
does  not  subserve  the  public  convenience  in 
the  village.  The  distance  between  the  place 
at  which  the  cars  are  sought  to  be  stopped, 
George  street,  and  the  place  at  which  de- 
fendant offers  to  stop  the  cars,  at  Water 
street,  Is  inconsiderable.  The  population  be- 
tween the  two  points  is  sparse.  How  many 
people  would  use  a  stopping  point  is  con- 
jectural; but  It  is  plain  that  the  number 
would  be  very  small.  The  inconvenience  re- 
sulting to  the  altogether  larger  number  of 
persons  carried  to  more  distant  points  would 
Inevitably  tend  to  decrease  the  extent  of 
train  service.  The  eventual  diminution  in 
the  number  and  speed  of  cars,  especially  if 
the  principle  Invoked  was  applied  to  a  great 
extent,  would  appear  to  more  than  equal  any 
possible  advantage.  The  weight  to  be  given 
to  this  custom  is  undoubtedly  diminished  by 
the  fact  that  this  matter  rests  largely  In 
the  discretion  of  the  village  council. 

After  examination  of  the  question  as  a 
whole,  we  have  concluded  that  the  proper 
course  is  to  reverse  the  decision  of  the  trial 
court 

Reversed. 


Digitized  by 


Google 


Minn.) 


BAIOLO  T.  NORTHERN  PAO.  RY.  CO. 


48» 


RAIOIiO  T.  NORTHERN  PAG  RY.  CO.  et  al. 
(Sapieme  Coart  of  Minnesota.    Jnly  16,  1909.) 

1.  Railboadb  (S  383*) — Accident  to  Pebsok 
oir  Track— CoNTHiBTJTOET  Negiqkncb. 

PlaintifTB  intestate,  intending  to  cross  de- 
fendant's railroad  track  at  a  place  which  ap- 
peared on  the  recorded  plat  as  a  street,  but 
'Which  had  never  been  opened  or  used  as  a 
street,  emerged  from  behind  a  retaining  wall. 
That  wall  obstmcted  his  view.  If,  when  deceas- 
ed reached  the  end  of  the  wall,  6^  or  7  feet 
from  the  track,  he  had  looked  in  the  direction 
from  whidi  defendant's  engine  was  coming,  he 
would  have  seen  it.  He  walked  upon  the  tracks 
in  front  of  an  approaching  engine  and  was  kill- 
ed. It  was  heJd  that  he  was  guilty  of  contribn- 
tory  negligence  as  a  matter  of  law. 

[Ed.  Note.^For  other  cases,  see  Railroads, 
Cent  Dig.  t|  1305-1310;   Dec.  Dig.  {  383.*] 

(Syllabns  by  the  Court) 

2,  WoaDs  AWD  Phkases— "Papeb  Stkebtt." 

A  street  appearing  on  the  recorded  plat,  but 
which  lias  never  been  opened,  nor  prepared  for 
use,  nor  used  as  a  street,  is  known  as  a  ''papei 
street." 

Appeal  from  District  Court,  Ramsey  Coun- 
ty;   Olin  B.  Lewis,  Judge. 

Action  by  Louis  Ralolo  against  the  North- 
ern Pacific  Railway  Coinpany  and  others. 
Verdict  for  defendants.  Ktom  an  order  de- 
nying a  new  trial,  plaintiff  appeals.  Af* 
firmed. 

James  B.  Markham  and  Benjamin  Cal- 
menson,  for  appellant  L.  T.  Chamberlain, 
for  respondent  Northern  Pae.  Ry.  Co.  0.  A. 
Hart,  for  reepondents  SbitCman  and  Ritchie. 

JAG6ARD,  3.  The  Intestate  of  plaintiff 
and  appellant  was  killed  by  an  engine  of  de- 
fendant and  respondent.  He  resided  a  short 
distance  from  a  point  where  a  city  street 
was  intersected  by  defendant's  railroad 
tracks.  The  street  was,  however,  a  "paper 
street"  only;  that  is.  It  appeared  on  the  re- 
corded plat,  but  had  never  been  opened,  nor 
prepared  for  use,  nor  used,  as  a  street  In- 
deed, a  wall  separating  other  railroad  tracks 
from  defendant's  tracks  made  impossible 
such  use  by  vehicles.  Plaintiff,  In  the  em- 
ploy of  another  railroad  company,  had  been 
In  the  dally  habit  of  passing  over  the  inter- 
vening tracks  of  the  defendant  to  meet  a 
south-bound  engine  of  his  employer,  to  be 
carried  by  It  to  his  place  of  work,  about 
three  miles  distant  The  driver  of  that 
engine  customarily  slowed  down  as  he  ap- 
proached this  crossing,  so  as  to  enable  de- 
ceased to  ride  on  it  to  bis  place  of  work. 
On  the  day  of  his  death,  deceased  had  been 
keeping  a  lookout  for  the  approach  of  this 
engine.  Observing  It  In  the  distance,  he  left 
home  for  the  purpose  of  meeting  It  He  ran 
out  hurriedly,  down  the  Incline  on  the  street, 
towards  the  point  where  the  paper  street 
crossed  defendant's  tracks.  A  retaining 
wall,  which  was  on  the  east  boundary  of  de- 
fendant's light  of  way,  and  which  ended 


[about  where  the  street  began,  prevented  a 
view  of  the  tracks  by  a  pedestrian  descend- 
ing the  hill  until  he  had  passed  by  the  north 
end  of  this  high  wall.  From,  the  end  of  the 
wall  to  the  railroad  track  the  distance  was 
6%  or  7  feet  If,  when  the  deceased  bad 
reached  the  end  of  the  wall,  he  had  looked  in 
the  direction  from  which  the  engine  was  com- 
ing. It  is  admitted  he  could  have  observed  It 
He  was  seen,  while  at  a  point  on  a  level  with 
the  top  of  the  wall,  and  before  following  the 
portion  of  the  path  leading  behind  and  around 
the  end  of  the  wall,  to  stop  and  to  apparently 
listen  for  the  customary  signal  by  an  engineer 
or  train  approaching  on  defendant's  tracks. 
This  point  was  about  16  feet  from  the  track. 
Deceased  then  moved  rapidly  down  the  path, 
beyond  the  northerly  end  of  the  wall,  across 
the  Intervening  distance,  and  upon  the  track 
directly  in  front  of  the  approaching  engine, 
by  which  he  was  struck  and  killed.  The 
trial  court  held  that  the  evidence  was  suflB- 
dent  to  make  out  a  prima  facie  case  of  neg- 
ligence on  defendant's  part,  but  that  deceas- 
ed was  guilty  of  contributory  negligence  as 
a  matter  of  law.  The  propriety  of  the  latter 
ruling  Is  the  Issue  presented  by  this  appeal. 
While  the  facts  in  this  case  differ  some- 
what from  all  other  similar  cases  heretofore 
presented  to  this  court,  we  are  of  opinion 
that  the  ruling  of  the  trial  court  was  neces- 
sitated by  many  previous  decialons  not  to  be 
successfully  differentiated.  See  Carney  v. 
Railway  Co.,  46  Minn.  220,  48  N.  W.  912; 
Clark  V.  Railway  Co.,  47  Minn.  380,  50  N.  W. 
365 ;  Magner  v.  Truesdale,  53  Minn.  436,  55  N. 
W.  607;  Schneider  v.  Railway  Co.,  81  Minn. 
384,  84  N.  W.  124;  Greenwood  v.  Railway  Co., 
95  Minn.  284,  104  N.  W.  3;  Carlson  v.  Rail- 
way Co.,  96  Minn.  504,  105  N.  W.  555,  4  L.  R. 
A.  (N.  S.)  849, 113  Am.  St  Rep.  655.  It  is  un- 
doubtedly true  that  there  is  a  group  of  cases 
In  which,  as  to  persons  employed  In  railroad 
yards  whose  duties  frequently  make  it  nec- 
essary for  them  to  go  upon  tracks,  and  the 
exigencies  of  whose  occupation  may  call  up- 
on them  to  do  so  without  premeditation, 
time,  or  opportunity  to  ascertain  whether  it 
is  dangerous  to  do  so,  it  is  held  that  the  act 
of  such  a  person  in  placing  himself  upon  the 
tracks  In  the  discharge  of  his  duties  without 
looking  or  listening  is  not  per  se  negligence, 
but  may  be  negligence  or  not  according  to 
other  clrcumstancea  Almost  always,  in  such 
instances,  the  questions  are  for  the  jury. 
Jordan  v.  Railway  Co.,  68  Minn.  8,  69  N.  W. 
633,  49  Am.  St  Rep.  486;  Graham  v.  Railway 
Co.,  95  Minn.  49,  103  N.  W.  714;  Joyce  v.  Rail- 
way Co.,  100  Minn.  225, 110  N.  W.  975,  8  L.  R. 
A.  (N.  8.)  756;  Floan  v.  Railway  Co.,  101 
Minn.  118,  111  N.  W.  967.  The  facts  of  this 
case,  however,  do  not  bring  it  within  that 
rule.  The  duties  of  deceased  as  a  railroad 
man  did  not  make  it  necessary  for  him  to  go 
upon  the  tracks.  No  exigency  of  his  employ- 
ment was  involved.    For  his  own  convenience 


•For  othar  cum  les  same  topic  and  lectlon  NUMBER  In  Dec.  A  Am.  Digs.  1907  to  date,  *  Reporter  Indeze» 


122  N.W.— 3114 


Digitized  by 


Google 


490 


122  NORTHWESTERN  REPORTEa 


(Minn. 


in  going  to  hi8  work  at  a  distant  place,  be 
was  crossing  ttie  tracks.  He  may  not  have 
been  a  trespasser;  but  he  -was  bound  to  exer- 
cise at  least  the  care  exacted  of  a  person  law- 
fully using  a  public  street 

Upon  the  record  it  may  fairly  be  conceded 
that  defendant's  engine  was  not  only  run- 
ning at  an  unlawful  and  improper  rate  of 
speed,  but  that  the  usual  signals  were  not 
given.  Counsel  for  plalntia  urges  that  the 
deceased  bad  the  right  to  presume  that  In 
handling  its  engine  tbe  railroad  company 
would  act  with  proper  care  and  that  sig- 
nals of  approach  would  be  seasonably  giv- 
en. This  matter  was  recently  considered  in 
detail  In  Carlson  v.  Railway  Co.,  96  Minn. 
r)04-508,  105  N.  W.  555,  557,  4  L.  R.  A.  (N.  S.) 
MQ,  113  Am.  St  Rep.  655.  It  was  there  sald: 
"Negllgence  of  the  defendant's  employes  In 
falling  to  whistle  or  ring  a  bell  at  a  crossing 
is  no  excuse  for  negligence  on  the  part  of 
the  person  about  to  cross  in  falling  to  use 
the  senses  to  discover  danger.  Railway  Co. 
V.  Houston,  95  U.  S.  697,  702,  24  L.  Ed.  542; 
Railway  Co.  t.  Freeman,  174  U.  S.  379,  19 
Sup.  Ct  763,  43  L.  Ed.  1014.  And  see  cases 
collected  In  Judsonv.  Railway  Co.,  63  Minn. 
248,  65  N.  W.  447."  Klotz  t.  Railway  Co., 
(IS  Minn.  341,  71  N.  W.  257,  is  not  necessarily 
inconsistent  It  was  there  said  at  page  349 
of  68  Minn.,  and  page  260  of  71  N.  W.: 
"Negligence  on  tbe  part  of  the  defendant's 
cmployte  would  not  relieve  the  deceased 
from  the  duty  which  the  law  imposed  upon 
him.  He  should  observe  due  care  and 
watchfulness,  and  not  rely  entirely  upon  the 
acts  of  others;  but  this  due  care  depends 
very  frequently  upon  the  facta  of  the  par- 
ticular case."  Inter  alia,  there  were  not 
present  in  this  case  the  distracting  circum- 
stances to  which  the  court  refers  in  the 
Klotz  Case  after  making  tbe  statement  quot- 
ed from  It  In  Palmer  v.  Railway  Co.,  112 
X.  Y.  234,  19  N.  B.  678,  tbe  testator  was  not 
only  crossing  tracks  on  a  village  street  but 
tbe  circumstances  made  it  a  question  for 
tbe  Jury  to  determine  whether,  if  be  bad 
looked  and  listened,  be  would  have  seen  tbe 
machine  on  the  track,  and,  if  be  did,  wheth- 
er by  Its  position  and  appearance  he  was 
informed  that  it  was  an  engine  approaching 
the  crossing,  or  whether,  from  the  situation 
of  tbe  cab  and  the  absence  of  the  signal,  he 
might  have  been  led  to  believe  it  was  going 
from,  and  not  toward,  the  crossing,  and 
whether  wltb  tbe  addition  to  these  circum- 
stances that  tbe  gates  were  open,  be  might 
not  have  reasonably  believed,  and  wltb  or- 
dinary prudence  have  governed  himself  by  the 
belief,  that  whichever  way  the  engine  was 
moving,  it  was  not  Intending  to  pass  tbe 
highway.  In  the  case  at  bar,  tbe  attention 
of  the  Intestate  was  in  no  wise  distracted. 
No  emergency,  presenting  any  dilemma  or  af- 
fording any  reason  for  failure  to  use  his 


senses,  existed,  and  no  circumstances  tended 
to  mislead  blm  concerning  tbe  danger  of  go- 
ing on  the  track. 
Affirmed. 


FLEMING  V.  FOUTS  et  al. 
(Supreme  Court  of  Minnesota.    July  16,  1909.) 

VENDOB     A.RD     PUBCHASBB     (I     231*)  —  BONA 

FiDB  Pdbohaseb— Notice. 

The  owner  of  land  contracted  in  writing  to 
transfer  it  subject  to  a  mortgage  of  $5,700. 
Tbe  j^rt  of  the  consideration  not  paid  in  cash 
bore  mterest  at  6  per  cent.  Tbe  vendee  went 
into  and  remained  in  possession  until  be  assign- 
ed to  his  brother.  The  vendor  conveyed  to  tbe 
Raymond  Bank,  whicb  conveyed  to  Orth.  Ortb 
gave  to  tbe  Rutland  Bank  a  first  mortgac^  of 
$5,000  at  6%  per  cent,  and  used  tbe  proceeds, 
with  $700  additional,  to  satisfy  tbe  previous 
mortgage  to  the  Raymond  Bank,  a  second  mort- 
gage for  the  amount  of  tbe  balance  of  tbe  pur- 
chase price  under  tbe  contract  of  sale,  and  a 
third  mortgage  for  tbe  amount  of  tbe  difference 
in  the  rate  of  interest  between  tbe  first  mort- 
gage satisfied  and  tbe  first  mortgage  placed. 
The  Raymond  Bank  and  Ortb  transferr^  to  a 
son  of  a  brother  of  the  vendee  in  the  original 
contract  title  to  the  land,  subject  to  incum- 
brances in  tbe  sum  of  tbe  three  mortgages,  and 
delivered  notes  ezeCuted  by  tbe  vendee  on  pay- 
ment of  the  second  mortgage  only  by  tbe  broth- 
er. Subsequent  to  this,  tbe  vendee  assigned  his 
contract  to  a  second  brother,  who  paid  bis  neph- 
ew tbe  balance  due  under  tbe  contract  It  ia 
held  that  the  record  of  tbe  various  transfers, 
tbe  recital  in  the  transfers  to  the  nephew  of 
tbe  incumbrances,  and  many  circumstances,  con- 
stituted notice  to  tbe  assignee  of  tbe  vendee  of 
tbe  lien  of  tbe  Rutland  Bank  mortgage,  and 
justified  the  trial  court  in  holding  that  mortgage 
to  be  a  valid  and  subsisting  lien  on  the  prem- 
ises. 

[Ed.  Note.— For  other  cases,  see  Vendor  and 
Purchaser,  Cent  Dig.  SS  513-53D;  Dec  Dig.  8 
231.»] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court  ECandiyobl 
County;  6.  E.  Qvaie,  Judge. 

Action  by  David  E.  Fleming  against 
Charles  E.  Fonts,  and  others.  Judgment  for 
defendants,  and  plalntifC  appeals.     Affirmed. 

James  Schoonmaker,  for  appellant  Daly 
&  Barnard,  for  respondents. 

JAGOARD,  J.  One  Fouts,  owning  land, 
mortgaged  it  to  a  land  credit  company  for 
$5,700.  He  afterwards  contracted  in  writing 
to  sell  the  land  to  Walter  Fleming  for  $7,- 
870,  of  which  $500  was  paid  in  cash.  The 
balance  above  tbe  land  credit  company's 
mortgage  bore  interest  at  6  per  cent  per  an- 
num. Walter  Fleming  went  into  and  re- 
mained in  possession  until  the  assignment 
hereinafter  mentioned  by  him  to  plaintlfT 
and  appellant,  David  Fleming.  Fouts  and 
his  wife  conveyed  the  land  to  the  State  Bank 
of  Raymond,  subject  to  this  mortgage  and 
contract  The  Raymond  Bank  In  turn  con- 
veyed the  land  to  the  defendant  and  respond- 
ent Orth.  Ortb  mortgaged  the  land  to  the 
Rutland  Savings  Bank  for  $5,000  at  5^  per 


•For  other  cans  ■••  same  toplo  and  uutlon  NUMBER  la  Dec.  *  Am.  Diss.  UOT  to  data^  *  Btportw  Ind«xea 


Digitized  by  VjOOQIC 


Minn.) 


FLEMING  ▼.  FOUTS. 


491 


oent  interest  The  trial  court  found  that 
Walter  Fleming  had  notice  and  knowledge  of 
all  these  transactions  and  acqnlesced  In  the 
mortgage  to  the  Rutland  Bank,  that  this 
mortgage  was  negotiated  for  the  purpose  of 
securing  money  with  which  to  satisfy  a 
mortgage  to  the  land  credit  company,  and 
that  the  money  so  secured,  together  with 
$700  additional,  was  In  fact  paid  for  the 
satisfaction  of  the  mortgage.  Ortb  then  ex- 
ecuted a  second  mortgage  to  the  Raymond 
Bank,  representing  the  difference  between 
the  first  mortgage  of  $5,000  and  what  Walter 
Fleming  still  owed  on  the  executory  con- 
tract, namely,  $2,631.75.  Orth  also  executed 
a  third  mortgage  to  the  Raymond  Bank  for 
$248,  being  the  difference  between  the  5^ 
per  cent  Interest  on  the  first  mortgage  and 
the  6  per  cent  Interest  on  the  balance  under 
the  Walter  Fleming  executory  contract  The 
three  notes  aggregated  $7,900.65.  In  nego- 
tiations between  Orth,  who  was  an  ofiScer  of 
the  Raymond  Bank,  and  the  Raymond  Bank, 
on  the  one  hand,  and  G.  A.  Fleming,  an 
attorney  and  brother  of  Walter  Fleming,  on 
the  other  hand.  In  Walter's  presence,  0.  A. 
Fleming  desired  to  be  put  in  the  same  posi- 
tion to  Walter  that  the  Raymond  Bank  then 
occupied.  This  was  agreed  to.  O.  A.  Flem- 
ing paid  the  second  mortgage  and  interest 
and  no  more;  the  bank  deducted  the  third 
mortgage  from  the  consideration  he  paid. 
At  the  request  of  C.  A.  Fleming  the  name  of 
Douglas,  his  son,  a  student  without  means, 
was  inserted  in  conveyances  executed  on 
March  5,  1906,  as  follows:  Ortli  conveyed 
to  Douglas  Fleming,  by  a  warranty  deed  to 
the  land  which  contained  the  following 
clause  concerning  incumbrances:  "And  that 
the  same  are  free  from  all  incumbrances  ex- 
(;ept  mortgages  aggregating  $7,900.65."  The 
Raymond  Bank  also  executed  a  special  war- 
ranty deed,  and  assigned  the  second  and 
third  mortgages.  With  these  instruments 
were  delivered  the  notes  under  the  original 
executory  contract  and  the  Orth  notes  se- 
cured by  the  second  and  third  mortgages. 
On  May  3,  1906,  Walter  Fleming  sold  and 
assigned  to  David  Fleming  all  his  rights  un- 
der the  executory  contract 

The  trial  court  found:  In  the  months  of 
March  and  October,  1906,  the  plaintiff,  acting 
In  concert  with  the  said  C.  A.  Fleming,  pro 
forma  paid  all  of  said  notes  (L  e.,  the  re- 
mainder of  the  purchase  price  on  the  con- 
tract of  sale);  that  notwithstanding  such 
payment  which  plaintiff  claims  to  be  a  bona 
fide  transaction,  be  did  not  then  nor  has 
he  ever  since  demanded  the  conveyance  of 
the  title  to  him  of  said  premises;  that  what- 
ever payment  was  made  of  the  notes  by  the 
plaintiff,  the  same  was  the  concerted  act  of 
himself  and  the  said  C.  A.  Fleming,  and 
was  made  for  the  purpose  of  avoiding  the 
payment  of  the  Hen  of  the  said  $5,000  mort- 
gage owned  and  held  by  the  said  Rutland 
Savings  Bank,  and  to  have  the  lien  of  said 


mortgage  discharged,  If  possible;  that  the 
said  payment  of  said  notes  by  plaintiff  was 
not  a  bona  fide  payment  or  transaction.  As  a 
conclusion  of  law  the  court  found  that  Doug- 
las Fleming,  while  the  title  owner,  really 
held  the  land  In  trust  for  C.  A.  Fleming; 
that  the  mortgage  to  the  defendant  the  Rut- 
land Savings  Bank  of  $5,000,  with  Interest, 
was  a  valid. and  subsisting  lien;  and  that  the 
Rutland  Bank  was  entitled  to  Judgment  ac- 
cordingly. This  appeal  was  taken  from  the 
order  denying  defendants'  motion  to  vacate 
this  decision  and  to  grant  a  new  trial  of  said 
action. 

The  conclusion  of  the  trial  court,  in  so  far 
as  it  involved  0.  A.  Fleming,  is  not  material. 
O.  A.  Fleming  was  not  made  a  party  plain- 
tiff or  defendant  The  substance  of  the  or- 
der for  Judgment  was  that  as  between  the 
plaintiff  and  the  defendant  the  $5,000  mort- 
gage to  the  Rutland  Savings  Bank  had  was 
a  valid  and  subsisting  lien  on  the  premises 
described;  that  is  to  say,  the  fact  that  David 
Fleming,  the  plaintiff,  bad  paid  Douglas 
Fleming  the  amount  due  on  the  executory  con- 
tract did  not  operate  to  vest  la  the  plaintiff 
the  fee  title  free  from  the  said  mortgage,  or 
to  divest  the  mortgage  to  the  Rutland  Bank. 
The  controversy  has  been  elaborately  argued. 
The  plaintiff  has  assigned  62  errors  on  the 
part  of  the  trial  court  No  material  assign- 
ment of  error  has  appeared  to  us.  after  ex- 
amination, to  be  meritorious.  Whether  all 
that  the  court  found  was  necessary  to  its 
conclusion  we  will  not  discuss.  Nor  is  It 
necessary,  as  we  regard  the  case,  to  consider 
whether  the  trial  court  was  correct  in  its 
conclusion  that  the  transaction  was  not  bona 
fide,  but  was  designed  and  executed  to  en- 
able the  Flemings  to  procure  the  land  for 
the  consideration  expressed  and  the  original 
executory  contract,  and  to  entirely  escape 
paying  the  $5,000  mortgage  to  the  Rutland 
Bank.  Nor  is  it  necessary  to  determine  the 
question  of  subrogation. 

As  we  view  the  facts,  plaintltTs  essential 
argument  as  to  the  vendee's  duty  to  a  mort- 
gagee is  not  pertinent  He  urges:  "The 
rights  of  the  parties  to  the  contract,  the  rights 
of  the  parties  to  the  mortgage,  and  the  rights 
between  the  vendee  and  the  mortgagee,  all 
became  vested  as  early  as  July  5, 1905  (being 
the  date  of  the  Rutland  Bank  mortgage). 
They  were  vested  and  valuable  rights,  which 
were  not  subject  to  be  changed  or  divested, 
except  by  acts  of  the  parties,  and  then  only 
in  legal  manner.  Among  these  rights,  his 
right  of  priority  of  contract  and  mortgage — 
that  is,  the  Hen  mortgage — was  subordinate 
to  the  rights  and  obligations  of  the  vendee 
and  of  the  contract"  This  Is  not  a  case  Ic 
which  all  that  appears  Is  that  subsequent 
to  the  execution  of  a  contract  for  the  sale 
of  land,  the  vendor  conveyed  the  land  to  a 
third  person,  who,  having  notice  of  such  con- 
tract executed  a  new  mortgage,  and  in  which 
the  vendee  named  In  the  contract  assigned  his 


Digitized  by 


Google 


492 


122  KOKTHWESTBRN  REPORTER 


(Minn.. 


rights  to  a  third  person  aif  ter  the  record  of 
such  mortgage.  The  situation  is  substan- 
tially different  and  involvea  many  legally 
significant  facts  peculiar  to  itself. 

In  the  first  place,  It  is  clear  that  plain- 
tiff did  not  receive  from  Douglas  Fleming  a 
title  free  from  the  Rutland  Bank  mortgage. 
He  had  no  deed,  and  had  demanded  none. 
He  could  derive  from  his  vendor  only  the 
title  Douglas  Fleming  had.  As  Douglas 
Fleming  bad  an  incumbered  estate,  he  could, 
of  course,  transmit  only  that  incumbered  es- 
tate to  the  plaintiff.  He  had  received  a  deed 
from  Orth,  which  expressly  recited  "that 
the  premises  are  free  from  all  incumbrances 
except  mortgages  aggregating  $7,900.65,"  and 
assignments  of  second  and  third  mortgages 
to  the  amount  of  $2,900.55.  He  had  notice 
of  the  record  that  the  $5,000  mortgage  had 
been  executed  to  the  Rutland  Bank,  and  that 
no  other  mortgage  had  been  executed.  His 
attorney,  at  least,  had  examined  the  deed 
from  Orth  'to  Douglas  Fleming.  He  there- 
fore had  at  least  constructive  notice  of  this 
incumbrance  on  Douglas  Fleming's  estate. 
Corbitt  V.  Clenny,  52  Ala.  480;  Stldham  v. 
Matthew,  29  Ark.  650;  Deason  v.  Taylor, 
53  Miss.  697;  Burch  v.  Carter,  44  Ala.  115. 
And  see  1  Warvelle  on  Vendors,  p.  326,  S  266. 

In  the  second  place,  it  Is  equally  clear  that 
plaintiff  was  entitled  to  no  relief,  by  way 
of  conveyance  or  otherwise,  from  the  orig- 
inal vendor,  Fouts.  Fonts  had  exercised  his 
unquestioned  legal  right  to  sell  his  equity 
in  that  land.  His  deed  had  beeen  recorded. 
Before  plaintiff  took  his  assignment  of  the 
original  contract,  he  had  at  least  construc- 
tive notice  of  that  transfer. 

In  the  tliird  place,  plaintiff  was  entitled 
to  no  relief  as  against  the  Raymond  Bank, 
the  Rutland  Bank,  or  Orth,  who  were  all 
made  parties  defendant  The  new  mortgage, 
the  trial  court  found  and  was  justified  in  find- 
ing, was  executed  and  the  old  mortgage  satis- 
fled  with  the  knowledge  and  acquiescence  of 
Walter  Fleming.  The  new  mortgage  did  not 
fall  due  until  the  expiration  of  10  years.  The 
original  contract  was  payable  on  or  before 
its  dne  date  "in  the  sum  of  $100  or  any  mul- 
tiple thereof."  Moreover,  in  connection  with 
the  transfer  to  Douglas  Fleming,  Walter 
Fleming  was  a  party  to  a  settlement  which 
included  the  cancellation  of  the  tlilrd  mort- 
gage without  payment  and  the  recognition 
of  the  Rntl'and  Savings  Bank  mortgage  as 
a  valid  incumbrance.  Whether  or  not  he 
assumed  and  agreed  to  pay  it  is  not  here  In- 
volved. Plaintiff  was  in  no  stronger  position 
than  Walter  Fleming.  The  trial  court  prop- 
erly found  that  "the  said  plaintiff,  David 
Fleming,  took  said  assignment  of  said  con- 
tract with  actual  and  full  notice  and  knowl- 
edge of  the  said  mortgage  to  the  said  Rut- 


land Savings  Bank  then  resting  upon  said: 
land  and  premises,  as  well  as  the  said  mort- 
gages to  said  State  Bank  of  Raymond,  and 
with  due,  complete,  and  sufficient  notice  and 
knowledge  of  all  the  negotiations  and  trans- 
actions had  between  the  said  Orth  and  said 
State  Bank  of  Raymond,  on  the  one  hand, 
and  0.  A.  Fleming  and  Walter  Fleming,  on 
the  other,  with  reference  to  the  assignments- 
of  the  mortgages  aforesaid,  the  considera- 
tion paid  therefor,  the  transfer  and  convey- 
ance of  the  title,  and  the  incumbrance  there- 
on, and  the  delivery  of  the  said  contract  audi 
notes,  and  how  said  Douglas  Fleming  be- 
came assigned  of  said  mortgages  and  invest- 
ed with  the  record  title  of  said  premises." 
We  have  examined  with  particular  care  the- 
portions  of  the  record  which  tend  to  sus- 
tain this  finding.  Within  the  familiar  rule- 
on  the  subject,  we  see  no  reason  why  that 
finding  should  not  be  sustained,  as  to  con- 
structive notice  at  least  Plaintiff  kuew- 
of  facts  sufficient  to  put  him  on  inquiry, 
which,  if  pursued,  would  have  disclosed  the- 
truth.  1  Warvelle  on  Vendors,  fS  262-264. 
Many  of  these  facts  have  previously  appear- 
ed. It  is  significant  that  plaintiff  resided' 
in  the  same  house  with  his  brother,  C.  A. 
Fleming,  and  that  his  nephew,  Walter  Flem- 
ing, lived  with  them.  He  admits  having  had'< 
knowledge  of  the  record  title,  including  the- 
Rutland  Bank  mortgage,  and  of  the  second' 
and  third  mortgages,  but  insists  that  when- 
he  paid  the  money  to  Douglas  Fleming  he 
said  nothing  to  him  or  his  father  relative  to- 
the  assignment  of  the  second  and  third  mort- 
gages. He  conceded  that  he  had  talked  the 
matter  over  with  C.  A.  Fleming,  and  that 
the  latter  had  told  him  he  had  an  assign- 
ment contract  He  had  also  talked  with 
Walter  Fleming,  and  was  not  clear  wheth- 
er the  latter  had  or  had  not  told  him  that 
C.  A.  Fleming  had  taken  the  contract  sub- 
ject to  the  Rutland  mortgage,  nor  whether 
"he  intended  on  this  deal  to  beat  the  Rut- 
land Bank  out  of  any  money  they  had  loan- 
ed upon  the  land. 

In  brief,  be  sought  to  deny  actual  knowl- 
edge, but  admitted  knowledge  of  facts  upon 
which  constructive  notice  must  be  attributed 
to  him.  It  would  serve  no  useful  purpose  to- 
further  detail  the  facts  upon  which  this  con- 
clnsion  rested,  which  constitute  a  part  of  the- 
evidence  upon  which  the  trial  court  found 
that  the  assignment  of  the  plaintiff  was  in' 
form  only,  and  that  the  transaction  was  not 
in  good  faith. 

This  conclusion  Is  the  more  readily  reach- 
ed because,  from  a  number  of  other  polnts- 
of  view,  we  are  convinced  that  the  validity 
of  the  Rutland  Bank  mortgage  must  eventu>- 
ally  be  sustained. 

Affirmed. 


Digitized  by 


Google 


Minn.)     MINNESOTA  &  DAKOTA  CATTLE  GO.  v.  CHICAGO  &  N.  W.  ET.  CO.      493 


MINNESOTA  &  DAKOTA  CATTLE  00.  ▼. 

CHICAGO  &  N.  W.  RY.  CO. 
<Sapreme  Conrt  of  Minnesota.    Jaly  23,  1908.) 

EviDEWCB  (SS  174,  407*)— Altkbation  of  In- 
BiBiniENTS  (i  2*)— Tbial  (H  62,  6S«>— Ap- 
FBAi.  AND  Bbbob  a  970*)— Best  and  Sec- 
ONDABT  Evidence— Rebuttai.  Evidbnob— 
DiscBETioN  or  COUBT. 

Plaintiff,  a  shipper  o{  cattle,  contended 
that  the  time  within  which  defendant,  a  com- 
mon carrier,  agreed  to  transport  cattle  between 
named  points,  was  30  hours.  This  contract  was 
oral.  Subsequently  plaintiff  signed  a  bill  of  lad- 
ing in  which  defendant  undertook  to  cany  with 
reasonable  dispatch.  Plaintiff's  testimony  tend- 
ed to  show  that  the  cattle  were  transported  in 
about  38  bonis,  whereby  the  cattle  were  in  poor 
condition  when  sold,  to  his  damage.  Defend- 
ant's testimony  tended  to  show  that  al)Out  an 
hour's  less  time  was  consumed  In  the  trans- 
portation and  that  the  time  used  was  reasonable 
for  the  distance.  The  jury  found  for  the  de- 
fendant   In  affirming  that  venlict  it  is  held: 

(1)  The  writing  constituted  the  contract  of  the 
parties.  Possible  errors  of  mling  on  evidence 
pertaining  to  the  oral  contract  are  immaterial. 

(2)  Conductor's  reports  of  train  movements 
made  in  regular  course  of  employment  were  prop- 
erly admitted  in  evidence;  i.  e.,  although  such 
reports  themselves  had  been  separated  from  the 
stubs  or  coupons,  to  which  they  were  attach- 
ed, aloju  a  perforated  line. 

(3)  The  admission  or  exclusion  of  evidence 
which  is  not  strictly  in  rebuttal,  but  which  is 
merely  cumulative  or  confirmatory  of  that  put 
in  in  the  original  case,  rests  primarily  in  the 
discretion  of  the  trial  court  which  will  be  re- 
versed only  in  case  of  gross  abuse  or  clear 
prejudice. 

In  plaintiff's  original  case,  witnesses  testified 
that  30  hours  was  a  reasonable  time  for  the 
transportation  here  involved;  but  plaintiff  in- 
troduced no  testimony  to  show  that  any  freight 
train  "had  ever  made  the  run"  within  that  time. 
Of  defendant's  witnesses,  one  testified  that  he 
had  never  known  the  distance  to  be  covered  in 
that  time,  and  another  "that  yon  might  get  one 
train  in  100  through  like  that."  Plaintiff  then 
songbt  to  prove  that  particular  shipments  of 
cattle  under  similar  circumstances  about  the  time 
in  ciuestion  were  made  within  the  30-hour  limi- 
tation. This  the  trial  court  excluded.  No  re- 
versible error  was  committed. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  SS  1828,  1827;  Dec  Dig.  SS  174. 
407;*  Alteration  of  Instruments,  Dec.  Dig.  S 
2  :•  Trial,  Cent.  Dig.  «  150,  153 ;  Dec.  Dig.  SS 
fi2.  «3;*  Appeal  and  Error,  Cent.  Dig.  SS  8849- 
3S.-)1 ;    Dec.  Dig.  S  970.»] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Brown  Coun- 
ty;  I.  M.  Olson,  Judge. 

Action  by  the  Minnesota  &  Dakota  Cattle 
Company  against  the  Chicago  &  Northwest- 
ern Railway  Company.  Judgment  for  de- 
fendant From  an  order  denying  plaintiff's 
general  motion  for  a  new  trial,  and  also  de- 
nying Its  motion  for  a  new  trial  founded  up- 
on surprise  and  newly  discovered  evidence, 
it  appeals.    Affirmed. 

H.  U  &  J.  w.  Sdimitt  and  Joa.  A.  Eck- 
stein, for  appellant  Brown,  Abbott  &  Som- 
sen,  for  respondent 

JAGGARD,  J.  Plaintiff  and  appellant  com- 
pany  contended,   and  introduced  testimony 


tending  to  show,  that  defendant  orally  agreed 
with  It  to  furnish  special  cattle  trains  and  to 
tranq>ort  certain  cattle  from  Pierre,  S.  D., 
to  Chicago,  111.,  within  a  period  of  30  hours, 
and  guaranteed  "a  30-bour  run."  Defend- 
ant's proof  tended  to  show  that  the  only 
agreement  between  the  parties  was  In  writing,' 
whereby  defendant  agreed  to  transport  the 
cattle  between  said  points  with  reasonable 
dispatch,  and  that  of  this  agreement  defend- 
ant kept  one  copy  and  gave  the  other  to  the 
plaintiff.  Plaintiff  admitted  that  its  agent 
was  given  "some  kind  of  paper,  which  he 
thought  to  be  merely  a  receipt  for  the  cat- 
tle, and  a  permit  for  blm  to  accompany  the 
cattle  to  Chicago,  and  free  passage  back 
from  Chicago  to  Pierre."  According  to  plain- 
tiff, about  38  hours  were  consumed  by  the 
company  In  the  transportation.  The  cattle 
in  consequence  bad  no  chance  to  rest,  eat,  or 
drink.  On  that  account  they  were  In  poor 
condition  to  sell,  and  when  sold  weighed  less 
than  they  would  have  weighed  If  the  con- 
tract for  the  80-hour  run  had  been  fulfilled, 
or  If  the  run  bad  been  made  within  a  rea- 
sonable time.  According  to  defendant,  the 
time  consumed  In  transportation  was  36 
hours  and  65  minutes.  At  the  opening  of  the 
trial  defendant  moved  that  plaintiff  elect 
to  stand  upon  the  alleged  oral  agreement 
to  transport  within  30  hours  or  upon  the 
written  agreement  to  transport  within  a  rea- 
sonable time.  The  motion  was  denied.  While 
the  trial  judge  submitted  to  the  Jury  the 
question  whether  or  not  the  30-hour  agree- 
ment was  made,  he  at  the  same  time  instruct- 
ed them  that  the  written  shipping  bill  con- 
tained no  provision  for  a  30-hour  run,  and 
that  If  the  plalntllTs  officers  signed  such  a 
paper  the  plaintiff  could  not  recover  on  the. 
oral  agreement,  even  if  It  was  made;  but 
if  the  jury  found  that  the  cattle  were  not 
transported  from  Pierre  to  Chicago  within  a 
reasonable  time,  on  account  of  the  negligence 
of  the  defendant,  and  It  appeared  that  the 
plaintiff  suffered  actual  damages  on  account 
of  such  negligence,  then  the  plaintiff  would 
be  entitled  to  recover  such  actual  damages. 
The  jury  returned  a  verdict  In  favor  of  the 
defendant.  This  appeal  was  taken  from  the 
order  of  the  trial  court  denying  plaintiff's 
general  motion  for  a  new  trial,  and  also  de- 
nying plaintiff's  motion  for  a  new  trial 
founded  upon  accident  and  surprise  and  new- 
ly discovered  evidence. 

Two  preliminary  considerations  are  Impor- 
'tant  In  the  first  place,  plaintiff  could  not 
have  properly  recovered  on  the  oral  agree- 
ment to  transport  within  30  hours.  A  writ- 
ten contract  which  provides  for  transporta- 
tion with  reasonable  dispatch  Is  valid  and 
free  from  legal  objections.  Cf.  O'Malley  v. 
Q.  N.  Ry.  Co.,  86  Minn.  880,  90  N.  W.  974. 
The. evidence  is  conclusive  that  such  a  writ- 
ten contract  was  signed,  and  that  one  of  the 


•For  othw  easea  «M  fame  topic  and  lectlon  NUMBER  la  D«o.  *  Am.  Dlgi.  1907  to  data,  *  Raportsr  Icdexei 


Digitized  by  VjOOQ  l€ 


494 


122  NORTHWESTERN  REPORTER. 


(Minn. 


copies  was  delivered  to  plaintiff  and  one  was 
retained  by  defendant  No  fraud  or  mistake 
was  alleged  or  appeared.  PlatntlfTs  presi- 
dent, wlio  signed  the  contract,  was  also  the 
president  of  a  bank,  and  had  had  large  busi- 
ness experience  generally,  and  with  contracts 
In  particular.  If  there  had  been  a  previous 
oral  understanding,  it  was  clearly  not  compe- 
tent to  prove  it  In  evidence,  and  thereby  con- 
tradict the  terms  of  the  written  agreement 
In  the  second  place,  the  testimony,  the  review 
of  which  in  detail  would  serve  no  useful  pur- 
pose, fully  Justified  the  Jury  In  finding  that 
defendant  exercised  due  diligence  In  trans- 
Ijortlng  t^>e  cattle  with  reasonable  dispatch. 
The  merits  of  the  controversy  are  clearly 
with  the  defendant 

The  first  group  of  assignments  of  error 
refers  to  the  exclusion  of  evidence  pertain- 
ing to  the  oral  agreement  Plaintiff  could 
not  have  recovered  upon  that  agreement. 
The  evidence  was  therefore  properly  ex- 
cluded. 

Another  group  of  assignments  raises  the 
question  "as  to  whether  or  not  conductors' 
reports  of  the  movements  of  their  trains, 
transcribed  from  their  tralnbooks,  are  com- 
l)etent  original  evidence  as  to  the  movements 
of  their  trains,  especially  where  it  appears 
that  material  and  Important  portions  of 
such  reports  are  missing  and  not  accounted 
for."  While  in  a  sense  copies,  as  distinguish- 
ed from  duplicates,  the  reports  were  proper 
evidence,  apparently,  within  the  general  rule 
on  the  subject  (Newell  v.  Houlton,  22  Minn. 
19;  Webb  v.  Mlchener,  32  Minn.  48,  19  N. 
W.  48;  Naas  v.  Railway  Co.,  96  Minn.  84, 
104  N.  W.  717),  but  certainly  within  the  ex- 
tremely liberal  rules  applicable  to  records 
kept  In  regular  course  of  railway  manage- 
ment (Railway  Co.  v.  Daniel,  122  Ky.  256,  91 
S.  W.  691,  3  L.  R.  A.  [N.  S.]  1190  [train 
sheet];  Fireman's  Ins.  Co.  v.  Railway  Co., 
138  N.  C.  42,  50  S.  E.  452,  107  Am.  St.  Rep. 
517  [train  sheets] ;  Naas  v.  Railway  Co.,  96 
.Minn.  84, 104  N.  W.  717  [In  which  correct  rec- 
ords were  held  admissible  despite  the  ab- 
sence of  Independent  recollection];  Donovan  v. 
Railway  Co.,  158  Mass.  450,  33  N.  E.  583 
[train  sheets]). 

It  is  quite  clear  that  the  exhibits  were 
not  mutilated  In  the  sense  In  which  that 
term  la  used  in  the  law.  The  original  instru- 
ment consisted  of  two. parts  separated  by  a 
l)erforated  line.  The  larger  sheet  was  pro- 
duced. The  shorter  part  or  the  stub  was  not 
produced.  This  does  not  constitute  mutila- 
tion, Just  as  the  separation  of  a  check  or  a 
receipt  along  the  perforated  line  from  the 
stub  to  which  it  is  attached  does  not  consti- 
tute a  mutilation  of  the  check  or  the  receipt 
.tnd  as  the  certificate  to  the  fact  of  mar- 
riage Is  not  mutilated  when  it  Is  separated 
from  the  marriage  license.  If  plaintiff  de- 
sired to  compare  the  record  produced  with 
the  separated  coupon,  and  to  use  any  dis- 
crepancies between  the  two,  or  to  explain  the 


sheet  produced  by  the  contents  of  the  coupon, 
the  court  should  have  permitted  It  bo  to  do. 
If  on  proper  application  the  court  bad  ig- 
nored plaintiff's  proper  and  adequate  re- 
quest to  this  effect  It  might  have  been  error. 
No  such  error  is,  however,  here  Involved. 

No  reversible  error  appears  In  this  group  of 
errors  for  the  further  reason  that  the  objec- 
tions do  not  appear  to  have  been  adequate. 

It  Is  further  urged  that  "If  It  was  compe- 
tent for  the  defendant  to  show  that  In  mak- 
ing Its  schedule  for  stock  trains  running  be- 
tween Pierre  and  Chicago,  the  shippers  of 
stock  on  that  line  were  first  consulted,  It  was 
proper  on  rebuttal  for  the  plaintiff,  one  of 
these  shippers,  to  show  that  It  was  not  so 
consulted."  In  point  of  fact  the  court  did 
permit  a  witness  to  testify  that  shippers  of 
stock  had  often  been  consulted,  but  sustain- 
ed the  objection  to  the  very  next  question: 
"What  did  you  say  about  the  time  of  arrival 
being  set  or  not,  to  the  stockman?"  The  tes- 
timony was  remote.  We  are  unable,  more- 
over, to  perceive  how  It  could  have  been 
prejudicial.  If  the  trial  court  had  admitted 
the  evidence,  and  If  It  were  the  defendant 
who  was  complaining,  Glassberg  v.  Olson,  89 
Minn.  195,  94  N.  W.  554,  would  have  been  In 
point  The  reasoning  of  that  case,  however, 
would  necessitate  a  present  approval  of  the 
discretion  of  the  trial  court  In  refusing  to 
admit  this  evidence  as  to  collateral  facts. 

Another  group  of  assignments  of  error 
raises  the  question  whether  or  not  under 
the  evidence  and  issues  in  the  case,  it  was 
competent  for  the  plaintiff.  In  rebuttal,  to  In- 
troduce, evidence  tending  to  prove  that  par- 
ticular shipments  of  cattle  by  special  train 
over  the  defendant's  road,  under  similar  cir- 
cumstances and  conditions,  about  the  time 
in  question,  were  made  within  the  SO-hour 
limitation.  Whether,  on  the  theory  that  the 
plaintiff  could  have  recovered  on  the  real 
contract  bis  present  contention  was  error 
need  not  be  considered. 

The  general  principles  governing  the  con- 
troversy are  clear.  Two  classes  of  evidence 
may  be  received  at  the  stage  of  rebuttal: 
(1)  Evidence  strictly  In  rebuttal,  and  (2)  evi- 
dence not  strictly  In  rebuttal,  consisting  usu- 
ally of  evidence  merely  cumulative  or  con- 
firmatory of  that  put  In  on  the  original  case. 
10  Enc.  of  Evidence,  642.  "Whatever  Is  a 
confirmation  of  the  original  case  cannot  be 
given  as  evidence  in  reply;  and  the  only 
evidence  which  can  be  given  as  evidence  In 
reply  Is  that  which  goes  to  cut  down  the 
case  on  the  part  of  the  defense,  without  be- 
ing any  confirmation  of  the  case  on  the  part 
of  the  prosecution."  Rex  v.  Hlldltch,  6  Car. 
&  P.  290,  reiterated  in  Rex  v.  Stlmpson,  2 
Car.  &  P.  415.  The  order  of  proof  Is  slight 
matter.  Blake  v.  Powell,  26  Kan.  320.  As 
in  the  modern  rules  of  pleading  great  liber- 
ality is  allowed,  and  the  object  sought  la  the 
attainment  of  Justice,  so  rules  of  evidence 
are  not  worshiped  as  a  fetich,  but  are  used 


Digitized  by 


Google 


Minn.)     MINNESOTA  <fc  DAKOTA  OATTLK  CO.  v.  CHICAGO  &  N.  W.  BY.  CO.      495 


as  mere  means  to  secure  a  proper  determina- 
tion of  the  merits  ot  a  controversy.  It  Is  not 
necessarily  error  for  the  trial  court  to  re- 
ceive evidence  which  Is  strictly  in  rebuttal. 
The  matter  rests  primarily  in  Its  discretion, 
which  will  be  reversed  only  in  case  of  gross 
abuse.  10  Enc.  of  Evidence,  640,  641.  Prej- 
udicial error  must  lie  made  clearly  apparent 
before  an  appellate  court  will  be  justified 
therein.  Railway  Co.  v.  Phlpps,  125  Fed. 
478,  60  a  C.  A.  814. 

The  burden  rested  on  plaintiff  to  make 
out  as  a  part  of  the  case  in  cliief  that  the 
defendant  failed  to  perform  Its  contract  of 
transporting  with  reasonable  dispatch.  Plain- 
tiff itself,  to  show  this,  Introduced  the  tes- 
timony of  four  witnesses,  who  had  shipped 
stock  for  many  years  over  defendant's  line 
between  the  points  here  In  issue,  to  the  effect 
that  30  hours  was,  at  the  time  of  this  ship- 
ment, a  reasonable  time  for  such  a  train  as 
was  here  Involved  to  make  the  trip  from 
Pierre  to  Chicago.  Plaintiff  says  that  on  be- 
half of  defendant  two  witnesses  testified 
that  it  was  impossible  to  make  the  trip  in 
that  time,  and  that  no  similar  train  had 
made  that  trip  that  year  In  that  time,  and 
that  to  meet  this  evidence,  and  to  rebut  it, 
plaintiff  offered  to  prove  that  similar  shlp- 
ineuts  between  these  points  over  defend- 
ant's road  had  been  made  in  the  fail  and 
summer  of  1902  within  the  30-hour  limita- 
tion. We  have  examined  the  parts  of  the 
record  referred  to.  They  do  not  sustain  plain- 
tiff's position.  The  witness  Johnson  said,  not 
that  it  was  Impossible  to  make  the  trip  in 
tliat  time,  but  that  be  did  not  know  of  any  ex- 
clusive stock  train  which  has  run  from  Pierre 
ro  Chicago  in  less  than  34  hours.  The  witness 
Scbnabel  "figured"  that  to  make  the  distance 
Id  30  hours  would  require  tlit  train,  during 
all  the  time  it  was  moving,  to  run  at  the  rate 
of  32.01  miles  an  hour.  He  testified  that 
tbe  speed  necessary  to  make  the  trip  in  30 
hours  would  be  "extraordinary"  for  a  freight 
train;  that  it  would  not  be  reasonable  in 
his  Judgment;  that  it  would  be  "excessive." 
Asked,  "In  your  Judgment,  would,  it  be  pos- 
sible to  run  a  train  at  that  speed?"  he  an- 
swered: "Oh,  If  your  roads  and  grades — 
Reduce  the  grades  and  supply  heavier  pow- 
er, yon  might  get  one  train  in  a  hundred 
through  like  that;  but  yon  would  be  more 
liliely  to  be  40 — 45  to  60— bours  on  the  run 
by  reason  of  delays  on  account  of  those  hot 
t>oxe8." 

"Within  these  general  principles,  we  are 
at  a  loss  to  perceive  reversible  error  in  this 
record.  The  plaintiff  itself  urges  that  it 
would  not  have  been  permitted  in  its  case  in 
cblef  to  have  proved  that  this  trip  lud  been 
made  in  30  hours.  McCrary  v.  Railway  Co., 
100  Mo.  App.  567,  83  S.  W.  82.  Gamble-Rob- 
inson Co.  V.  Railway  Co.  (Minn.)  119  N.  W. 
1068,  does  not  so  decide.  If,  however.  It  was 
admissible  in  plaintUTs  original  case,  that 


was  the  natural  time  when  the  proof  should 
have  been  introduced.  From  this  point  of 
view,  its  admission  or  exclusion  was  discre- 
tionary. It  was  not  admissible  as  strict  re- 
buttal, because  defendant  did  not  succeed  in 
proving,  or  in  securing  evidence  which  tended 
to  prove,  that  it  was  not  possible  to  have  run 
a  train  between  the  points  in  question  in 
30  hours;  that  is  to  say,  tbe  evidence  did  sot 
deny  some  affirmative  fact  which  the  other 
parties  bad  introduced  evidence  tiding  U> 
prove.  Marshall  v.  Davles,  78  N.  Y.  414. 
Under  ail  circumstances  the  excluded  evi- 
dence was  not  sufficiently  prejudicial  in 
fact  because  of  the  abundance  of  evidence 
appearing  in  the  record  as  holding  that  the 
time  in  which  defendant  transported  the 
cattle  constituted  reasonable  dispatch.  We 
do  not  here  determine  whether  or  not  such 
evidence  would  have  been  admissible  if  in- 
troduced by  plaintiff  in  liis  original  case. 
It  is  evident,  however,  that  it  would  not  have 
been  of  controlling  weight.  Exceptional 
performances  are  not  a  fair  test  of  what  is 
reasonable  dispatch.  Defendant  aptly  says: 
"Proof  that  Dan  Patch  paced  a  mile  in  1:5."> 
does  not  tend  to  prove  that  such  is  the  reason- 
able speed  of  a  horse;  nor  is  proof  that  some 
other  horse  could  not  pace  a  mile  in  4  min- 
utes proof  that  such  is  reasonable  speed." 

The  authorities  to  which  plaintiff  refers 
us  in  particular  are  not  necessarily  incon- 
sistent with  the  conclusion  here  reached,  lu 
Ankersmlt  v.  Tuch,  114  N.  Y.  51,  20  N.  E. 
819,  it  was  held  that  it  was  not  discretion- 
ary with  the  trial  court  to  exclude  evidence 
to  impeach  or  discredit  the  testimony  in- 
troduced by  opponents.  "He  may  contra- 
dict the  testimony  of  a  witness  as  to  any 
matter  upon  which  be  has  been  called  to 
give  evidence  in  chief,  provided  it  is  not 
collateral  to  the  issue.  •  •  •"  In  the 
case  at  bar,  however,  that  other  trains  had 
made  tbe  trip  within  30  bours  did  not  tend 
to  impeach  or  discredit  Johnson,  who  testi- 
fied that  be  did  not  know  that  the  trip  had 
been  made  within  that  time ;  nor  to  impeacii 
or  discredit  Scbnabei,  because  he  did  not 
testify  that  no  such  time  had  or  bad  not 
been  made,  but  merely  that  it  might  be 
made.  In  Commonwealth  t.  'Leach,  156 
Mass.  09,  30  N.  E.  163,  tbe  court  cited  and 
approved  Stephen,  Dig.  on  Evidence,  art. 
60,  that,  "Where  the  opinion  of  an  expert 
is  deemed  to  be  relevant  to  the  issue,  facts 
inconsistent  with  such  opinion  became  rele- 
vant also."  There  experts  had  been  allowed 
to  testify  In  chief  that  it  was  •impossible  for 
anybody  to  do  tbe  particular  thing.  That 
opinion  was  a  matter  material  to  the  issue 
on  trial.  It  was  held  that  such  testimony 
may  be  met  by  calling  a  witness  in  defense 
to  testify  that  to  their  own  knowledge  as  a 
matter  of  fact  the  thing  had  been  done. 
Here,  however,  our  attention  has  been  called 


Digitized  by 


Google 


496 


122  NORTHWESTERN  EBPORTEB. 


(Minn. 


to  no  expression  by  a  witness  that  It  would 
have  been  Impossible  to  have  made  the  trip 
In  30  hours.  In  Throckmorton  v.  Holt,  180 
U.  S.  552,  21  Sup.  Ct  474,  46  U  EJd.  663,  the 
genuineness  of  a  signature  of  Gen.  Sher- 
man was  InvolTOd.  The  trial  court  exclud- 
ed the  testimony  of  bis  son,  offered  on  re- 
buttal, that  certain  characteristics  were  "by 
no  means  an  unusual  feature  in  the  signa- 
ture of  bis  father."  The  Supreme  Court 
said:  "Counsel  for  proponents  could  not  an- 
ticipate what  evidence  would  be  given  by 
the  opponents,  nor  what  reasons  might  be 
offered  by  a  witness  as  the  ground  for  an 
opinion  against  the  genuineness  of  any  sig- 
nature upon  the  paper.  •  •  •  In  such  a 
ease  as  this,  where  there  was  no  evidence 
by  witnesses  as  to  the  signature  of  the  par- 
ty, it  became  of  the  greatest  importance  that 
no  admissible  evidence  would  be  excluded 
when  offered  upon  the  question  of  its  gen- 
uineness." It  was  accordingly  held  that 
the  testimony  was  admissible  as  a  matter 
of  right  The  same  distinction  pointed  out 
previously  serves  to  differentiate  that  case; 
that  is,  In  the  case  at  bar  there  was  no  opin- 
ion for  the  proposition  which,  according  to 
plalntlfTs  own  theory,  the  evidence  exclud- 
ed was  offered  to  rebut. 

Another  group  of  assignments  "raises  the 
question  whether  or  not  It  was  prejudicial 


error  for  the  court  to  instruct  the  jury,  at 
the  request  of  the  defendant,  tibat  plaintiff 
could  not  recover  In  this  action  on  any 
theory,  unless  It  had  proved  actual  dam- 
ages." Plaintiff  argues  "that,  if  the  Jury 
found  that  there  was  an  oral  contract  pro- 
viding for  a  run  not  to  exceed  30  hours,  the 
defendant  was  clearly  in  default,  and  plain- 
tiff would  not  be  entitled  to  a  verdict  for 
at  least  nominal  damages,  carrying  costs." 
He  further  insists  that  the  witness  fees 
amounted  to  over  $250,  and  that  the  error 
was  not  one  for  the  application  of  the  max- 
im "de  minimis."  If  this  be  conceded,  it  is 
none  the  less  clear  that  the  trial  court's  at- 
tention should  have  been  called  to  the  casual 
mistake.  The  case  falls  within  the  rule 
laid  down  in  Stelnbauer  v.  Stone,  85  Minn. 
274,  88  N.  W.  754.  In  any  view,  the  alleged 
error  Is  governed  by  Harvey  v.  Railway  Co., 
129  Iowa,  465,  105  N.  W.  958,  3  L.  R.  A.  (N. 
S.)  978, 118  Am.  St  Rep.  483. 

Finally,  plaintiff  urges  that  under  all  the 
evidence  and  circumstances,  and  upon  af- 
fidavit formed  upon  motion  for  new  trial 
based  upon  surprise  and  newly  discovered 
evidence,  plaintiff  was  entitled  to  a  new 
trial.  The  matter  was  within  the  discre- 
tion of  the  trial  court  That  discretion  was 
not  abused. 

Affirmed. 


Digitized  by 


Google 


Mlno.) 


8PE0E  ▼.  NORTHERN  PAO.  RY.  CO. 


497 


SPECK  T.  NORTHERN  PAa  RT.  00. 

(two  cases). 

(Sapiene  Coart  of  Minnesota.    July  16,  1900.) 

Cabbibbs   (I   333*)— Injttbt  to  FAasXNGEBf— 

OOirTBJB'DTOBT   Neouoeitoe. 

Plaintiff,  a  passenger,  who  had  previously 
been  in  defendant's  station,  by  mistake  opened 
a  door,  which  was  not  marked  as  a  place  for 
use  by  passengers,  and  which  led  Into  a  base- 
ment. Although  it  was  daylight,  she  entered 
without  looking  where  she  was  going  and  fell. 
It  is  held  that  she  cannot  recover  damages  suf- 
fered in  consequence. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent.  Dig.  S  1395 ;   Dec  Dig.  f  333.»] 

(Syllabns  by  the  Court) 

Appeal  from  District  Court,  Carlton  Coun- 
ty ;  Wm.  A.  Cant,  Judge. 

Actions  by  Eunice  Speck  and  by  Joseph  T. 
Speck  against  the  Northern  Pacific  Railway 
Company.  Verdicts  for  plaintiffs.  From  an 
order  denying  motions  for  Judgment  notwith- 
standing the  verdict  or  for  a  new  trial,  de- 
fendant appeals.  Reversed,  and  Judgments 
ordered  for  defendant. 

Washburn,  Bailey  &  Mitchell,  for  appel- 
lant.   John  Jenswold,  Jr.,  for  respondents. 

JA06ARD,  J.  Plaintiffs  are  hnsband  and 
wife.  Two  actions,  brought  to  recover  for 
Injuries  upon  the  person  of  plaintiff  wife, 
were  tried  together.  Plaintiff  wife,  a  pas- 
senger upon  defendant's  train,  alighted  at 
a  station  In  Superior,  which  for  present  pur- 
poset  It  will  be  assumed  belonged  to  and  was 
operated  by  defendant  A  platform  sur- 
rounded the  depot  In  the  south  end  of  the 
building  was  located  a  baggage  room  with 
two  doors,  one  on  the  west  side,  towards 
the  tracks,  and  the  other  opposite  on  the 
east  Bide.  Attached  to  each  was  a  brass  plate 
on  which  was  inscribed  the  word  "Baggage" 
In  large  black  letters.  The  scene  of  the  ac- 
cident was  beyond  the  baggage  room,  on  the 
side  away  from  the  tracks,  at  a  place  where 
a  door  led  to  the  basement  It  was.  not  "la- 
beled." Beyond  this  door  there  were  two 
doors,  separated  by  a  wall,  which  led  Into 
the  waiting  rooms.  To  each  was  attached  a 
brass  plate,  on  which  was  inscribed,  respec- 
tively, the  words  "Men"  and  "Women,"  in 
large  letters.  There  was  testimony  that  the 
door,  the  scene  of  the  accident,  was  like  other 
doors  of  similar  stations  of  the  defendant 
railroad  company.  It  was  different  from  the 
baggage  room  door  and  from  the  waiting 
room  doors.  It  was  single;  the  baggage  and 
waiting  room  doors  were  double.  It  was  of 
wood;  the  waiting  room  doors  were  more 
than  half  glass.  Each  baggage  room  door 
among  other  things,  had  the  usual  brace  of 
planks  In  the  form  of  an  X.  All  the  doors 
bad  transoms.  Plaintiff  wife,  who  for  pres- 
ent purposes  will  be  assumed  to  have  been 
within  the  rights  of  a  passenger,  stood  talk- 
ing to  a  companion  for  a  time  at  this  door. 


with  her  suit  case  in  her  hand  and  with  her 
other  hand  upon  the  latch  of  the  single  door, 
turned,  and,  without  making  any  investiga- 
tion as  to  where  the  door  led  to,  opened  it, 
walked  Into  the  opening,  lost  her  balance, 
fell  to  the  bottom  of  the  basement,  and  was 
injured.  The  threshold  In  the  door,  like  the 
other  thresholds  in  the  depot,  was  of  red 
sandstone.  It  formed  the  first  riser  of  the 
stairs  and  was  seven  inches  high.  There 
was  no  railing  on  the  side  of  the  stairs. 
There  was  no  light  in  the  basement,  but  the 
wall  surrounding  the  space  for  the  stairs 
was  whitewashed.  The  accident  happened 
about  2:30  p.  m.  The  door  was  sometimes 
locked  and  sometimes  unlocked.  The  plain- 
tiff wife  had  passed  through  the  station  a 
number  of  times  on  her  way  to  Dniuth.  She 
was  familiar  with  its  general  appearance. 
She  bad,  at  least  once  in  the  February  pre- 
ceding this  accident,  which  occurred  In  No- 
vember, passed  through  this  station  and  pur- 
chased a  ticket  in  the  waiting  room,  to  which 
she  was  attempting  to  go  when  she  was  hart 
The  Jury  returned  a  verdict  for  both  plain- 
tiffs. This  appeal  was  taken  from  the  or- 
der of  the  trial  court  denying  defendant's 
motion  for  an  order  directing  the  entering 
of  Judgment  for  defendant  notwithstanding 
the  verdict  or  for  a  new  trial.  The  facts 
have  been  stated  upon  the  assumption  that 
all  controversies  except  those  pertaining  to 
defendant's  negligence  and  plaintiff's  con- 
tributory negligence  have  been  resolved  in 
plaintUTs  favor,  inasmuch  as  the  court  is 
convinced  that  within  the  decisions  on  the 
subject  the  plaintiff  wife  cannot  recover,  and 
that  therefore  neither  plaintiff  can  be  award- 
ed damages  within  the  law. 

According  to  some  authorities.  Involving 
similar  but  not  identical  circumstances,  de- 
fendant's negligence'  was  not  made  out.  Thus 
In  McNanghten  v.  Railway  Co.,  136  Iowa, 
177,  113  N.  W.  844,  plaintiff,  a  passenger,  in- 
tending to  enter  a  toilet,  by  mistake  opened 
a  basement  door,  and  was  injured  by  falling 
down  stairs.  These  doors  were  respectively 
labeled  "Basement"  and  "Toilet"  Plaintiff's 
view  of  the  label  "Basement"  was  hidden  by 
people  who  were  gathered  about  The  desti- 
nation of  the  toilet  room  was  obstructed  from 
view  by  Its  location.  Ladd,  J.,  said:  "It  can 
hardly  be  said  that  a  closed  door  to  the  stair- 
way down  to  a  basement,  with  door  knob  and 
catch,  constitutes  a  trap  or  pitfall.  Every 
precaution  had  been  taken,  save  that  of  lock- 
ing it,  against  Its  improper  use.  •  •  •  The 
company  was  not  bound  to  anticipate  that 
passengers  will  assume  that  every  door  from 
the  room  opens  into  a  toilet,  or  that  without 
the  ordinary  use  of  their  senses  they  will 
precipitately  open  the  doors  therefrom  and 
enter  without  thought  as  to  where  they  lead. 
*  *  *  The  fact  that  a  door  is  there  is  a 
warning  that  it  is  a  means  of  exit  or  of  en- 


•For  other  etuum  see  same  toplo  and  section  NUMBER  In  Dec.  A  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 
122N.W.-82 


Digitized  by  VjOOQ  l€ 


498 


122  NORTHWESTERN  REPORTER. 


(Minn. 


trance  from  or  to  some  apartment,  and  a  way 
np  or  down  stairs,  or  to  a  baggage  room,  or 
to  a  closet;  and  no  one  bas  the  right  to  as- 
sume, without  knowledge  or  Its  equivalent, 
the  character  of  the  place  to  which  it  af- 
fords access."  To  the  same  effect,  see  Too- 
mey  v.  Railway  Co.,  S  C.  B.  N.  S.  146 ;  Stur- 
gis  y.  RaUway  Co.,  72  Mich.  619,  40  N.  W. 
914;  Sweeney  v.  Barrett,  151  Pa.  600,  25 
AU.  148. 

Within  the  principle  of  other  authorities, 
plaintiffs  are  unable  to  recover  because  of 
the  wife's  contributory  negligence.  In  Gaff- 
ney  v.  Brown,  150  Mass.  479,  23  N.  E.  233, 
plaintiff  entered  a  public  dining  room  by  a 
side  door  from  the  hall,  and  opened  the  door 
in  the  side  of  the  apartment  for  the  purpose 
of  retiring  therefrom.  This  door  was  not  in 
any  way  indicated  as  a  mod6  of  egress.  As 
in  the  case  at  bar,  without  paying  any  heed 
to  her  steps,  she  walked  directly  over  a 
threshold  and  was  thus  precipitated  down  a 
flight  of  stairs  leading  to  the  cellar,  to  which 
the  doorway  directly  leads.  Devens,  J.,  said: 
"If  she  thought  it  possible  that  the  door 
which  she  opened  might  lead  to  the  hall  or  en- 
try, and  be  intended  as  a  mode  of  egress,  it 
was  certainly  her  duty  to  look  where  she  was 
stepping  before  she  advanced  across  the 
threshold.  She  had  no  right  to  act  unre- 
servedly upon  the  i>elief  that  the  door  would 
necessarily  be  locked,  unless  Intended  for 
egress.  According  to  common  knowledge  and 
experience,  her  conduct  in  this  respect  was 
careless."  To  the  same  effect,  see  Wilkinson 
v.  Fairrie,  9  Jur.  N.  S.  280,  1  H.  4  C.  633 ; 
Hntchins  v.  Priestly  Exp.  W.  &  S.  Ca,  61 
MlCh.  252,  28  N.  W.  85. 

In  this  state  the  authorities  have  held  that 
plaintiff,  under  similar  but  not  identical  cir- 
cumstances, could  not  recover.  In  Swanson 
V.  Boutelle,  95  Minn.  138,  103  N.  W.  886, 
plaintiff,  properly  In  a  store,  having  com- 
pleted his  errand,  started  back,  intending  to 
go  by  the  same  door  through  which  he  had 
entered,  found  it  dosed,  opened  another  door 
by  mistake,  walked  into  the  elevator  shaft, 
and  was  injured.  See  pages  139,  140,  of  95 
Minn.,  page  887  of  103  N.  W.  The  evidence 
was  held  insufiBcient  to  show  defendant's  neg- 
ligence and  to  conclusively  establish  con- 
tributory negligence.  In  Johnson  v.  Ram- 
berg,  49  Minn.  341,  343,  61  N.  W.  1043,  plain- 
tiff sought  to  enter  a  store,  as  it  was  as- 
sumed he  had  a  license  to  do.  He  had  never 
been  there  before.  He  crossed  over  to  a 
door  to  pass  through  it  into  the  store;  but, 
meeting  defendant,  he  stepped  aside  for  him 
to  pass.  In  so  doing  he  stepped  off  the  head 
of  the  stairs  and  fell.  Dickinson,  J.,  said: 
"The  evidence  shows  conclusively  that  the 
room  was  so  light  that  any  one  who  looked 
about  him  would  see  the  open  stairway.  The 
plaintiff  admitted  that  be  could  have  seen 
it  if  he  had  looked,  but  that  he  did  not  look. 
The  verdict  was  held  not  Justlflable." 

Plaintiff  has  cited  us  to  a  number  of  au- 
thorities which,  while  all  in  a  measure  dis- 


tinguishable, as  will  appear  in  tb^  sum- 
mary following,  as  a  whole  tend  to  sustain 
his  contention.  In  Pelton  ▼.  Schmidt,  104 
Mich.  345,  62  N.  W.  552,  53  Am.  St  Rep. 
462,  the  court  distinguished  between  ttiat 
case  in  which  "one  comes  suddenly  upon  an 
unexpected  opening  in  a  passageway"  from 
one  In  which  a  person  walks  directly  forward 
into  an  opening  which  he  could  have  seen  for 
some  distance.  In  Beard  v.  Railway  Co.,  48 
Vt  101,  plaintiff,  attempting  to  pass  down 
stairs  in  the  dark,  fell  to  the  ground.  In  For- 
en  V.  Rodick,  90  Me.  276,  38  Atl.  175.  the  en- 
trances of  a  building  in  which  plaintiff  sought 
the  services  of  a  physician  were  held  to  be 
misleading  and  dangerous.  Seeing  a  doctor's 
sign  on  a  door,  plaintiff  opened  it,  stepped  off 
the  wall,  and  fell  to  the  bottom  of  the  cellar. 
This  was  held  to  have  been  a  dangerous  pit- 
fall. In  Hayward  v.  Merrill,  94  111.  351,  34 
Am.  Rep.  229,  plaintiff,  a  guest  of  a  hotel, 
stepped  through  a  door  he  had  opened  by  mis- 
take, stopped  to  light  a  match,  fell  Into  the 
basement,  and  was  injured.  In  Clopp  v.  Mear, 
134  Pa.  203,  19  Atl.  504,  the  entrances  were 
alike  externally  as  to  size,  shape,  appearance, 
etc.,  and  about  equally  fit,  to  any  one  not  fa- 
miliar with  the  premises  wishing  to  enter  the 
store.  In  Engel  t.  Smith,  82  Mich.  1, 46  N.  W. 
21, 21  Am.  St  Rep.  549,  the  court  regarded  the 
case  as  close  and  difficult,  and  pointed  out 
that  "the  negligence  of  defendant's  employ^ 
was  active."  In  Martin  v.  Railway  Co.,  16 
C.  B.  7,  J.  Scott,  179,  plaintiff  was  running 
to  catch  a  train.  In  view  of  this  fact  It  is 
not  necessary  to  develop  the  criticism  on  that 
decision.  The  significance  of  Gordon  v.  Cum- 
mlngs,  152  Mass.  513,  25  N.  B.  978,  9  L.  R.  A. 
640,  23  Am.  St  Rep.  846,  is  minimized  by 
the  previous  decision  in  Oaffney  v.  Brown, 
supra,  the  facts  of  wbidi  much  more  closely 
resemble  those  here  presented.  Gardiner  v. 
C.  S.  Co.,  134  Iowa,  6,  111  N.  W.  316,  is  dis- 
tinguished in  McNaughten  v.  Railway  Co., 
136  Iowa,  177,  113  N.  W.  844. 

It  is  -evident  that  no  universal  rule  has 
been  laid  down  by  the  decisions.  In  the  na- 
ture of  things  such  a  rule  would  be  almost 
Impossible  of  correct  formulation.  In  a  meas- 
ure each  case  must  be  determined  by  Itself, 
in  view  of  its  own  particular  circumstances. 
Here  defendant  had  done  nothing  actively 
to  induce  plaintiff  wife  to  open  this  door  or 
to  mislead  her.  It  bad  properly  designated 
the  entrance  to  and  exit  from  the  waiting 
room.  It  had  closed,  but  not  locked,  the  en- 
trance she  used.  An  affirmative  act  on  her 
part  was  the  necessary  occasion  of  danger. 
The  entrance  to  the  basement  and  to  the 
waiting  room  were  unlike  externally  as  to 
size,  shape,  and  appearance,  and  did  not  ap- 
pear equally  fit  to  any  one  not  familiar  with 
the  premises  who  wished  to  go  into  any  of 
the  places  designed  for  the  reception  of  pas- 
sengers or  the  public.  The  door  bore  no  re- 
semblance to  an  unexpected  opening  in  a 
way. 

The  plaintiff  wife,  a  resident  of  Dolnth, 


Digitized  by  VjOOQ  l€ 


Minn.) 


MU80LF  T.  DULUTH  EDISON  ELEOTBIO  OO. 


499 


whose  age  was  not  stated,  but  who  bad  been 
married  seven  years,  was,  It  may  be  as- 
sumed, a  mature  woman,  free  from  i>ersonal 
disabilities.,  She  had  limited  knowledge  of 
the  depot  On  this  occasion  she  had  gone  by 
the  unmistakable  baggage  room  door  and  ap- 
proached the  doors  to  the  waiting  room,  which 
were  equally  well  marked.  No  circumstan- 
ces distracted  her  attention  or  caused  haste. 
She  stopped  at  the  door  in  question,  which 
was  plainly  differentiated  in  appearance  from 
the  door  of  the  waiting  room  into  which  she 
Intended  to  go  and  bore  no  sign.  The  thresh- 
old of  that  door  was  a  stone  step  above  the 
level  of  the  pavement  on  which  she  was 
standing.  She  opened  the  door  by  raising 
the  latch.  In  broad  daylight,  without  looking 
ahead,  she  fell  into  the  open  stairway  She 
failed  to  note  that  the  door  was  not  marked 
as  a  place  for  women  or  men,  and  to  ob- 
serve that  the  door  did  not  resemble  the 
doors  marked  as  the  places  where  passengers 
were  to  go  In  or  to  go  ont  of  the  depot, 
through  one  of  which  she  herself  had  previ- 
ously passed  into  and  out  of  the  depot  She 
then  walked  ahead  through  the  door,  without 
looking  where  she  was  going,  at  a  time  and 
place  where  the  most  casual  observation 
would  have  revealed  to  her  the  open  space 
above  the  stairway.  The  slightest  exercise 
of  the  sense  of  sight  would  have  apprised  her 
of  the  danger  before  she  could  have  fallen. 
Under  the  circumstances,  defendant  as  a  mat- 
ter of  law  was  not  liable  in  damages. 
Judgments  for  defendant  ordered. 


ANDREWS  et  aL  v.  NORTHWESTERN 

NAT.  BANK. 

(Snpreme  Court  of  Minnesota.    Feb.  26,  1900.) 

On  rehearing,    ibenied. 

For  former  opinion,  see  107  Minn.  196,  117 
N.  W.  621,  780. 

PER  CURIAM.  A  reargument  upon  this 
Issue  was  granted  in  this  case  and  briefs 
were  duly  filed  by  the  parties.  After  con- 
sidering the  matter  fully,  we  find  no  reason 
for  changing  the  decision  heretofore  filed  in 
this  case,  and  the  same  is  hereby  adhered  to. 


BIUSOLP  T.  DULUTH  EDISON  ELECTRIC 

CO. 
(Snpreme  Court  of  Minnesota.    July  9,  1909.) 

EI.ECTBICITT  (SI  14,  18,  19*)— Rkleasi!  (SJ  7, 
37*) — ^Action  fob  Death — Questions  fob 
JuBT  —  Neglioence  —  Deqbee  of  Cabe  — 
Pboximatb  (Jaube  —  Contbibutobt  Neqli- 
gence — Covenant  Not  to  Sue  as  Release 
— Deduction  of  Conbidebation  fbou  Re- 

COVKBY— BVIDBNCB— ADMISSIBIUTT. 

Deceased,  an  employ^  of  a  telephone  com- 
pany, while  working  on  its  wires  suspended 
between  poles,  was  killed  by  electricity  com- 
municatea  throngh  contact  of  a  heavily  charged 


wire  of  defendant  electric  company  with  a  wire 
of  which  deceased  took  hold  when  it  was  raised 
to  him  by  another  servant    It  Is  held: 

(1)  Defendant's  negligence  was  for  the  jury. 

The  evidence  of  detective  insulation,  unin- 
spected for  six  years,  presented  a  question  of 
fact 

Deceased  was  on  the  premises  of  his  employer, 
and  was  neither  a  trespasser  nor  a  licensee. 

(2)  Defendant  owed  him  the  affirmative  duty 
of  exercising  commensurate  care  to  protect  him 
from  danger  due  to  its  wires  carrying  a  dan- 
gerous current. 

Whether  the  fallare  of  defendant  to  properly 
insulate  its  wire  was  the  proximate  cause  of 
the  damages  was  for  the  jury. 

(3)  Deceased  was  not  as  a  matter  of  law 
guilty  of  contributory  negligence,  nor  was  his 
death  as  a  matter  of  law  dne  to  negligence  of 
a  fellow  servant 

(4)  An  iaatrument  whereby  plaintiff  agreed 
not  to  sue  the  telephone  ccmpaey  unless  it 
should  be  held  as  a  matter  of  law  that  plaintiff 
could  not  recover  damages  against  the  defendant 
company,  and  unless  the  consideration  paid 
should  be  returned  to  the  telephone  company,  is 
construed  to  be  a  covenant  not  to  sue,  and  not 
a  release.  Plaintiff  was  not  precluded  thereby 
from   enforcing   liability   against  defendant. 

(5)  That  instrument  did  not  purport  to  be, 
and  did  not  operate  as,  a  partial  satisfaction. 
Defendant  was  not  entitled  to  deduct  its  con- 
sideration from  the  amount  of  the  verdict 

(6)  Alleged  trial  errors  do  not  justify  reversal. 
[Ed.  Note.— For  other  cases,  see  Electricity, 

Cent  Dig.  n  7,  10,  11;  Dec.  Dig.  U  14,  18, 
19  ••  Release,  Cent  Dig.'  S§  63,  71;  Dec.  Dig. 
i§  7,  37.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  St  Louis 
County ;  J.  D.  Ensign,  Judge. 

Action  by  Lydla  A.  Musolf,  as  administra- 
trix, against  the  Dulutb  Edison  Electric  Com- 
pany. There  was  a  verdict  for  plaintiff,  and 
from  an  order  denying  a  motion  for  Judgment 
notwithstanding  the  verdict  or  for  a  new 
trial,  defendant  appeals.    AfSrmed. 

E.  C.  Kennedy,  for  appellant  A.  E.  Mc- 
Manus,  for  respondent 

JAG6ARD,  J.  This  action  was  brought 
by  plaintiff,  as  administratrix,  respondent 
herein,  of  the  deceased,  to  recover  from  de- 
fendant and  appellant  damages  for  the  death 
of  the  said  deceased  while  in  the  employ  of 
a  telephone  company  on  May  22,  1908.  The 
deceased  was  working  at  the  upper  cable, 
suspended  between  poles  of  the  telephone 
company  some  eight  or  ten  feet  above  defend- 
ant's wires.  All  wires  were  many  feet  above 
the  ground.  His  helper  had  pulled  a  plat- 
form up  to  him  In  accordance  with  custom, 
and  then  at  the  request  of  the  deceased  took 
a  piece  of  wire  from  a  coll  on  the  ground, 
which  was  coiled  up  there  for  that  purpose, 
and  by  means  of  a  rope  drew  it  up  to  deceas- 
ed. The  piece  of  wire  sent  up  was  too  short 
for  its  Intended  purpose.  Deceased  asked 
him  to  send  up  another  and  longer  piece. 
The  assistant  procured  such  a  piece,  coiled  it 
up,  tied  it  to  the  rope,  and  was  pulling  It  up 
to  deceased,  when  the  wire  became  uncoiled. 
One  end  of  It  came  in  contact  with  the  wires 
of  defendant  and  appellant  heavily  charged 


•For  other  eaaw  lee  lamo  topio  and  laction  NUMBER  In  Deo.  ft  Am.  Digs.  IMT  to  date,  *  Roportor  IndoxM 


Digitized  by  LjOOQ  l€ 


500 


122  NORTHWESTERN  REPORTER. 


(Minn. 


with  electricity.  As  It  came  up  to  the  plat- 
form, deceased  reached  over  and,  Instead  of 
grasping  the  rope  to  which  the  wire  was  at- 
tached, took  hold  of  the  wire  Itself  with  his 
left  hand.  The  current  was  grounded  through 
the  deceased,  who  had  put  his  right  hand  on 
some  other  substance,  passed  through  him, 
precipitated  him  to  the  ground,  and  caused 
his  death.  The  negligence  with  which  the 
defendant  was  charged  was  "that  the  defend- 
ant strung  and  maintained  two  wires  through 
which  was  transmitted  a  heavy  electrical  cur- 
rent upon  poles  of  the  telephone  company, 
and  that  the  wires  so  strung  and  maintained 
by  the  defendant  were  negligently  and  im- 
properly insulated;  that  the  electrical  cur- 
rent passing  through  them  was  dangerous 
and  fatal  to  human  life,  and  a  menace  to  the 
public  and  any  one  who  should  come  In  con- 
tact with  or  near  the  wires."  The  jury  re- 
turned a  verdict  of  |5,000.  This  appeal  was 
taken  from  the  denial  of  the  usual  motion  In 
the  altematlye. 

1.  The  defendant  contends  that  It  was  not 
guilty  of  actionable  negligence.  The  testi- 
mony was  sufficient  to  justify  the  jury  In 
finding  that  the  Insulation  on  defendant's 
wires  was  "frayed,"  "bad,"  "burned,"  "rag- 
ged, with  strips  hanging  from  It"  "There 
were  threads  hanging  here  and  there."  The 
wires  had  been  strung  six  years  before  the 
accident,  and  had  not  been  Inspected  since 
that  time.  It  sufficiently  appeared  that  If 
the  wire  had  been  properly  Insulated  the  cur- 
rent could  not  have  "leaked"  In  the  manner 
In  which  it  did,  unless  there  bad  been  "quite 
a  spell"  of  wet  weather.  The  questions  as 
to  immediate  climatic  conditions  and  as  to 
Improper  insulation  were  fairly  of  fact  for 
the  Jury. 

Defendant  urges,  however,  that  deceased 
was  either  a  licensee  or  a  trespasser.  It  in- 
sists: "The  poles,  upon  which  were  strung 
the  wires  of  the  telephone  company  and  the 
wires  of  the  defendant,  were  used  and  oc- 
cupied by  both  companies  by  a  common  un- 
derstanding between  them.  The  electric  com- 
pany had  the  right  to  use  the  poles  of  the 
telephone  company,  and  the  telephone  com- 
pany had  the  right  to  use  the  poles  of  the 
electric  company,  for  stringing  and  operating 
their  wires  for  the  respective  purposes  of  the 
different  companies."  Accordingly,  the  de- 
ceased, while  acting  within  the  scope  of  his 
employment,  was  a  licensee;  but  "if  he  med- 
dled with  the  wires  of  the  defendant,  or 
used  them  for  purposes  other  than  that  for 
which  they  were  intended,  then  he  was  a 
trespasser  in  his  relation  to  the  defendant 
company,  and  In  either  case  of  licensee  or 
trespasser  the  same  degree  of  care  is  not 
charged  upon  the  defendant  company  as 
would  be  in  case  of  a  person  upon  a  public 
highway,  or  one  who  uses  electricity  furnish- 
ed by  it  as  a  commodity,  under  the  rule  an- 
nounced by  this  court  in  Gilbert  v.  Electric 
Co.,  93  Minn.  99,  100  N.  W.  653,  106  Am.  St. 
Rep.  430."    Plaintiff,  on  the  other  hand,  con- 


tends that  deceased  was  neither  a  licensee 
nor  a  trespasser,  but  was  on  the  wires 
stretched  between  the  poles  of  the  telephone 
company ;  that  is,  that  he  was  en  the  prem- 
ises of  his  master.  In  point  of  fact,  the  trial 
court  charged.  In  effect,  that  plaintiff  at  the 
time  of  his  death  was  working  on  the  wires 
of  the  telephone  company,  suspended  from  the 
poles  of  the  telephone  company.  No  exception 
was  taken  to  this  charge,  and  no  assignment 
of  error  is  directed  to  it  It  appears  from 
this,  and,  although  not  so  clearly,  from  other 
parts  of  the  record,  that  the  ownership  of  the 
poles  by  the  employer  of  the  deceased  was  as- 
sumed on  trial.  It  must  therefore  be  so  as- 
sumed here.  It  follows  that  plaintiff  was  up- 
on his  master's  premises,  and  was  not  a  li- 
censee or  a  trespasser. 

Defendant's  duty  under  the  circumstances 
was  clear.  The  use  of  electricity,  a  "silent, 
deadly,  and  Instantaneous  force,"  is  governed 

.  by  the  law  of  negligence,  not  by  the  prin- 
ciples of  insurance  of  safety.  See  New  Oma- 
ha T.  Co.  V.  Anderson,  73  Neb.  84,  102  N.  W. 

I  89.  In  this  respect  it  Is  an  exception  to  the 
general  rule  of  insurance  of  safety  applied 
to  similarly  dangerous  instrumentalities.  The 

I  persons  employing  so  terribly  dangerous  a 
force  can  exonerate  themselves,  however, 
only  by  showing  the  exercise  of  greatest  dili- 
gence. The  exercise  of  commensurate  care 
on  the  part  of  defendant  company,  therefore, 
required  at  least  that  the  insulation  of  the 

.  kind  used  be  In  good  and  operative  condition. 

'  It  appears  from  the  testimony  that  the  as- 
sistant frequently  sent  up  wires  to  the  cable 
splicer  at  different  places,  including  this 
same  place  and  the  same  platform  and  to  the 
deceased  himself.  It  also  appears  that  the 
wires  were  frequently  sent  up,  "generally 
colled,"  and,  "remaining  that  way,"  would 
safely  pass  defendant's  wires.  Our  attention 
has  been  called  to  no  testlhiony  that  this  was, 
however,  the  invariable  custom.  Inferential- 
ly,  they  might  sometimes  have  been  sent  up 
uncoiled.  In  wet  weather — and  It  is  to  be 
remembered  that  defendant  emphasized  the 
fall  of  rain  about  this  time — the  wet  rope 
attached  to  a  coil  would  naturally  be  Inclined 
to  transmit  the  current  to  one  handling  the 
rope  as  deceased  was  doing;  would,  if  the 
coll  of  wire  had  come  in  contact  with  defend- 
ant's wires.  If  "defectively  insulated.  Under 
the  circumstances  it  is  clear  that  the  defend- 
ant owed  to  the  plaintiff  the  affirmative  duty 
to  take  care.  See,  for  example,  Snyder  v.  T. 
Co.,  135  Iowa,  215,  112  N.  W.  T77, 14  L.  R.  A. 
(N.  S.)  321 ;  Cf.  Smith  v.  T.  Co..  102  Mhm.  4, 
112  N.  W.  1001;  Ry.  Co.  v.  Chapman,  145 
Fed.  886-888,  76  C.  C.  A.  418.  The  finding 
of  the  jury  that  defendant  failed  to  exercise 
due  care  in  Insulating  its  wires  and  thereby 
violated  its  duty  to  plaintiff  must  be  sus- 
tained. 

In  none  of  the  authorities  to  which  de- 
fendant directs  our  attention  was  the  per- 
son Injured  upon  the  premises  of  his  master 
as  was  this  deceased.    In  Hector  t.  Electric 


Digitized  by  VjOOQ  l€ 


Bllnn.) 


MUSOLF  T.  DULUTH  BDISON  BLEOTBIO  CO. 


601 


Co.,  161  Mass.  558,  37  N.  B.  773,  25  L.  E.  A. 
554,  the  lineman  was  on  the  roof  of  a  city 
bouse.  It  did  not  there  appear  that  the  de- 
fendant had  iBTited  or  licensed  plaintlft  to 
go  where  he  was  when  be  was  injured.  To 
Rowe  V.  Electric  Co.,  213  111.  318,  72  N.  E. 
711,  the  same  distinction  applies.  It  also 
there  appeared  the  telephone  men  knew  they 
could  not  work  when  the  current  was  on, 
knew  that  the  electric  company's  wires  were 
uninsulated,  and  without  Juatlflcation  relied 
on  the  electric  company's  custom  of  blowing 
a  whistle  before  turning  the  current  on. 
In  Mangan  v.  Transit  Co.,  50  Misc.  Rep.  388, 
100  N.  Y.  Supp.  539,  also,  the  plaintiff  was 
either  a  licensee  or  a  trespasser.  In  Graves 
V.  W.  P.  Co.,  44  Wash.  675,  87  Pac.  956,  11 
L.  R.  A.  (N.  S.)  452,  the  plaintiff  injured  was 
a  part  of  the  general  public  to  whom  the 
company  owed  no  duty  to  insulate  wires. 
And  see  New.  Orleans  T.  Co.  ▼.  Anderson,  73 
Keb.  84,  102  N.  W.  80,  In  which  the  Intestate 
of  the  plaintift  died  as  a  result  of  an  elec- 
tric shock  received  by  him  while  acting  as  a 
fireman  at  a  fire,  and  Cumberland  T.  Co.  t. 
Martin,  116  Ky.  554,  76  a  W.  394,  77  S.  W. 
718,  63  L.  R.  A  469,  105  Am.  St  Rep.  229, 
in  which  deceased  took  refuge  from  an  elec- 
tric storm  under  the  porch  of  a  store.  He 
placed  bis  back  against  an  iron  grating  over 
a  window,  and  was  eubseciaently  killed  by 
lightning  which  struck  one  of  defendant's 
telephones  near  the  store  and  was  conduct- 
ed to  tlie  porch  by  a  wire  negligently  main- 
tained over  the  metal  roof  thereof.  Bennett 
▼.  Railway  Co.,  102  D.  S.  677-586,  26  L.  Ed. 
235  (in  which  plaintiff  fell  Into  a  hatch  hole 
In  depot  floor);  Fredenburg  v.  Baer,  89  Minn. 
241,  94  N.  W.  683  (in  which  plaintiff,  on  his 
way  to  a  closet,  fell  into  an  areaway  on  de- 
fendant's premises);  Schreiner  v.  Railway 
Co.,  86  Minn.  245-248,  90  N.  W.  400,  58  U  B. 
A.  75  (which  involved  a  person  walking  on 
a  railroad  track);  Telegraph  Co.  v.  Spelch- 
er,  59  N.  J.  Law,  23,  39  Ati.  661  (In  which 
a  lineman  in  the  employ  of  a  city  was  In- 
jured by  the  giving  way  of  a  cross-bar  on  a 
telegraph  pole  designed  to  carry  wires  only). 
It  is  to  be  noted,  however,  that  in  Mitchell 
V.  Electric  Co.,  129  N.  C.  166,  39  S.  E.  801, 
55  L.  R.  A.  398,  85  Am.  St.  Rep.  735,  It  was 
held  that,  a  telephone  company  and  a  light 
company  jointly  occupying  the  street,  such 
Joint  occupancy  gave  enough  relationship  be- 
tween the  parties,  so  that  a  telephone  line- 
man, who  was  Injured  because  of  defective 
Insulation  in  the  light  company's  wire,  had 
a  right  of  action. 

In  the  case  at  bar  the  deceased  was  work- 
ing on  his  master's  premises,  in  the  course 
of  his  natural  and  usual  employment,  at  a 
place  where  defendant  knew  he  might  nat- 
urally be  required  to  go.  Defendant  had 
failed  to  inspect  its  insulation  for  six  years. 
The  most  casual  view,  according  to  the  tes- 
timony favorable  to  plaintiff,  would  have 
shown    its   Imperfect  condition.    Defendant 


owed  deceased  a  duty.    Its  violation  of  that 
duty  the  Jury  was  Justified  in  finding. 

2.  Whether  the  negligence  of  defendant 
was  the  proximate  cause  of  the  injury  was 
fairly  a  question  for  the  jury.  The  Imperfec- 
tion of  the  insulation,  in  the  natural  and 
continual  sequence,  unbroken  by  the  act  of 
any  human  wrongdoer,  had  a  natural  ten- 
dency to  produce  the  harm  complained  of. 
Mere  mention  of  the  inclination  of  the  cur- 
rent in  a  wire  to  escape  upon  contact  with 
another  wire  suffices.  The  lack  of  insulation 
in  the  heavily  charged  wire  was  the  efficient 
cause,  the  one  that  necessarily  set  the  other 
causes  In  operation.  See  Mitchell  y.  Electric 
Co.,  129  N.  C.  166,  39  S.  B.  801,  65  L.  R.  A. 
398,  85  Am.  St.  Rep.  735.  It  was  not  inci- 
dental. See  Insurance  Co.  v.  Boon,  95  U.  S. 
117,  24  L.  Ed.  395,  and  Ooodlander  Mill  Co.  T. 
Standard  Oil,  63  Fed.  400,  11  C.  C.  A.  253, 
27  L.  B.  A.  683.  There  Is  no  analogy  be- 
tween the  Instant  case  and  Davis  v.  P.  H. 
B.  Co.,  126  Mich.  429,  85  N.  W.  1125.  The 
plaintiff  in  that  case,  engaged  In  stringing 
the  wire  for  a  call  bell,  went  upon  the  roof 
of  a  building  over  which  a  live  electric  wire 
was  suspended.  The  roof  was  wet  and  slip- 
pery. Plaintiff  slipped,  came  in  contract 
with  the  live  wire,  and  was  injured.  It  was 
naturally  held  that  he  assumed  the  risk  and 
could  not  recover. 

3.  The  Jury  found  that  the  death  of  the 
deceased  was  not  caused  by  his  own  negli- 
gence. No  considerations  have  appeared  in 
the  record  which  would  Justify  ua  In  hold- 
ing that  as  a  matter  of  law  deceased  knew 
of  the  defective  Insulation  of  the  wires.  He 
bad  the  right  to  rely  upon  the  performance 
of  Its  duty  by  defendant  He  was  not  bound 
to  anticipate  defendant's  negligence.  See 
Mitchell  v.  Electric  Co.,  129  N.  C.  166,  39  S. 
E.  801,  56  li.  R.  A.  398,  85  Am.  St  Rep.  735. 
Nor  does  the  record  show  as  a  matter  of 
law  that  plaintiff's  death  was  due  to  the 
negligence  of  the  fellow  servant,  inasmuch 
as  that  negligence  does  not  conclusively  ap- 
pear. 

(4)  Defendant  further  contends  that  an 
instrument  executed  by  plaintiff  and  the 
telephone  company  operated  as  a  discharge 
of  defendant's  liability.  The  English  au- 
thorities are  clear;  that,  if  there  be  a  satis- 
faction and  an  extinguishment  of  a  cause 
of  action  ex  contractu  or  ex  delicto  by  an 
absolute  or  unconditional  release  executed 
to  one  of  a  number  of  persons  Jointly  liable, 
the  cause  of  action  is  released  as  to  all; 
however,  where  it  Is  agreed  that  one  of  the 
parties  is  not  to  be  sued,  the  Instrument  is 
not  a  release.  Such  words  are  quite  as  ap- 
plicable to  a  covenant  not  to  sue  as  to  a 
release.  See  Bateson  y.  Gisling,  L.  R.  7  C. 
P.  9,  per  Williams,  J.,  at  page  14,  and  per 
Keating  and  Brett,  JJ.,  at  page  16.  The 
question  is  one  of  intention.  If  the  Instru- 
ment Is  to  operate  as  a  release,  the  right 
against  a  party  Jointly  liable  cannot  be  re- 


Digitized  by  VjOOQ  l€ 


502 


122  NOBTHWESTBBN  BEPOBTEB. 


(Mlnti. 


served.  Price  t.  Barker,  Bl.  &  Bl.  760-777, 
per  Coleridge,  X  These  two  cases  InTolved 
actions  ez  coutracta.  The  test  they  an- 
nounced for  determining  the  difference  be- 
tween a  covenant  not  to  sue  and  a  release 
was  approved  and  applied  in  an  action  ex 
delicto  in  Dock  v.  Mayean  [1882]  Q.  B.  611. 
The  American  authorities,  defendant  frank- 
ly admits,  have  recognized  the  substance  of 
the  rule.  In  one  of  the  later  cases.  Railway 
Co.  V.  Averlll,  224  IlL  516-522,  79  N.  B.  654, 
656,  Wilkins,  J.,  says:  "The  legal  effect  of 
a  covenant  not  to  sue  is  not  the  same  as  that 
of  a  release.  A  covenant  not  to  sue  a  sole 
tort-feasor  is  considered  in  law  a  discharge 
and  a  bar  to  an  action  against  bim;  but  the 
rale  is  otherwise  where  there  are  two  or 
more  tort-feasors  and  the  covenant  Is  with 
one  of  them  not  to  sue  bim.  In  such  case 
the  covenant  does  not  operate  as  a  release 
of  either  the  covenantee  or  the  other  tort- 
feasor; but  the  frarmer  must  resort  to  his 
suit  for  breach  of  the  covenant,  and  the 
latter  cannot  invoke  the  covenant  as  a  bar 
to  an  action  against  him."  The  principal 
controversy  here  concerns,  not  the  rule  itself, 
but  the  means  by  which  a  covenant  not  to 
sue  Is  to  be  distinguished  from  a  release. 
The  reservation  of  the  right  to  sue  other 
Joint  tort-feasors  is  obviously  necessary  to  a 
covenant  not  to  sue.  Snyder  v.  T.  Co.,  135 
Iowa,  215,  112  N.  W.  776,  14  L.  B.  A.  (N. 
S.)  321. 

The  inclination  of  the  American  cases  is 
to  lay  less  stress  than  the  English  decisions 
upon  the  new  agreement  not  to  sue  and  to 
hold  that  it  is  neither  an  exclusive  nor  a 
conclusive  test  Many  instruments  concern- 
ing such  a  reservation  have  been  held  to  be 
releases.  There  is  not,  however,  the  incon- 
sistency between  the  authorities  on  the  point 
which  is  sometimes  attributed  to  them.  Un- 
doubtedly, general  statements  have  tended  to 
create  doubt  and  confusJon;  but  when  they 
are  limited  to  the  particular  instrument  in  is- 
sue most  apparent  discrepancies  disappear. 
It  is  entirely  consistent  with  giving  effect 
to  the  reservation  of  a  right  to  sue  other 
joint  tort-feasors  to  hold  that  a  clause  in  an 
agreement  that  other  persons  Jointly  liable 
shall  not  be  discharged  by  the  agreement  not 
to  sue  a  particular  Joint  tort-feasor  does  not 
prevent  the  instrument,  construed  as  a 
whole,  from  being  a' release.  If  a  given  In- 
strument, so  construed.  Is  in  law  a  release. 
It  is  not  material  that  the  parties  agreed  that 
It  shall  not  be  a  release.  The  repugnant 
clause  is  void.  Just  as  in  the  case  of  an 
agreement  which  really  creates  a  partner- 
ship a  clause  that  the  parties  shall  not  be 
partners  Is  Ineffectual.  The  law  construes 
such  Instruments,  determines  their  effect, 
and  enforces  the  sequences  which  follow 
from  the  real  intent  Thus  in  McBrlde  v. 
Scott  132  Mich.  176,  93  N.  W.  243,  61  Xj.  R. 
A.  445,  102  Am.  St.  Rep.  416,  1  Am.  &  Eng. 
Ann.  Cas.  61,  and  note,  the  Injured  person 
released  one  Joint  tort-feasor  and  distinct- 


ly and  expressly  reserved  all  righto  and 
claims  against  each  and  all  other  wrong- 
doers for  any  and  all  sums  in  addition  to 
the  sum  paid  by  the  person  released  by  way 
of  reduction  pro  tanto  of  damages  for  whicti 
the  suit  had  in  fact  been  brought  This  was 
with  obvious  propriety  held  to  be  a  release. 
And  see  Abb  v.  Railway  Co.,  28  Wash.  428^ 
68  Pac.  954,  68  L.  R.  A.  293,  92  Am.  St  Rep. 
864;  Ducey  v.  Peterson,  37  Colo.  216,  86  Pac. 
109,  9  L.  R.  A.  (N.  S.)  1066,  119  Am.  St  Bep. 
284,  11  A.  &  E.  Ann.  Cas.  893. 

It  is  not  however,  necessary  here  to  consid- 
er nor  to  determine  the  exact  test  by  which  a 
release  is  to  be  distinguished  from  a  covenant 
not  to  sue.  It  is  well  settled  that  the  distinc- 
tion exists;  that  the  intention  of  the  parties 
controls;  that  if  they  have  in  fact  by  use  of 
consistent  terms,  expressed  an  Intention  not 
to  bring  an  action  against  one  of  a  larger 
number  of  Joint  tort-feasors  and  not  to  dis- 
charge the  others,  the  law  will  give  effect 
to  their  agreement;  and  that  despite  the  ex- 
ecution of  the  agreement  recovery  may  be 
had  against  the  tort-feasors  not  parties  to 
the  Instrument  As  Brown,  C.  J.,  said  in 
Bloss  V.  Plymale,  8  W.  "Va.  393, 100  Am.  Dec. 
752-756:  "A  contract  or  agreement  not  un- 
lawful in  itself  and  plain  and  express  in 
its  terms,  should  not  be  construed  or  made 
to  defeat  the  object  and  intent  of  the  par- 
ties, and  much  less  to  work  a  result  they 
sought  to  avoid." 

In  the  case  at  bar  the  writing,  after  recit- 
ing the  facts  from  which  the  injury  arose 
and  the  payment  of  a  consideration  of  $1,- 
000,  set  forth  that  plaintiff  covenanted  with 
the  telephone  company  that  she  would  never 
prosecute  any  action  against  the  telephone 
company  for  damages  arising  from  the  death 
of  deceased,  that  the  payment  of  the  consid- 
eration should  in  no  wise  debar  or  affect 
any  action  against  other  persons  or  corpora- 
tions arising  out  of  the  death,  and  that  the 
consideration  was  paid  solely  for  said  cov» 
nant  not  to  sue  the' telephone  company  for 
such  damages.  It  also  contained  a  clause  to 
the  effect  that  in  case,  In  an  action  against 
the  present  defendant  the  courts  should 
hold  that  no  cause  of  action  existed  against 
such  defendant  for  such  damages,  the  plain- 
tiff might  remit  the  said  $1,000  to  the  tele- 
phone company,  and  thereafter  commence  an 
action  against  the  telephone  company  at  any 
time  within  the  statute  of  limitations.  The 
clearly  expressed  Intent  was  to  create,  not  a 
release,  but  a  covenant  not  to  sue.  The  in- 
strument contained  no  inconsistencies  In  lan- 
guage. It  was  not  absolute,  but  conditional. 
In  its  terms.  It  did  not  purport  to  be  a  sat- 
isfaction of  the  telephone  company's  liabili- 
ty. It  did  not  finally  extinguish  the  right  to 
sue  against  any  of  the  tort-feasors.  To  hold 
that  it '  operated  as  a  satisfaction  of  the 
cause  of  action  arising  from  the  negligence 
which  it  recited  as  the  cause  of  death  of  de- 
ceased would  be  a  gross  perversion  of  Ita 


Digitized  by  VjOOQ  l€ 


ailnn.) 


HUSOLF  T.  DULUTH  EDISON  ELEOTBIO  CX). 


503 


terms  and  a  mlsappUcatloa  of  tbe  prlndplea 
-nre  have  just  considered. 

&  It  is  further  argued  tbat  the  amount 
paid  by  the  telephone  company  should  be  de- 
ducted from  the  award  of  the  Jury.  Defend- 
ant urges:  "If  a  plaintiff.  In  an  action 
brought  under  section  4503,  Bev.  Laws  1905, 
giving  a  right  of  action  for  death  by  wrong- 
ful act,  could  receive  from  different  ones  an 
amount  of  money  under  agreements  not  to 
sue,  then  in  many  instances  there  would  be 
In  effect  a  recovery  for  much  more  than  the 
limitations  placed  upon  by  the  Legislature." 
In  McBrlde  v.  Scott,  132  Mich.  176,  93  N. 
"W.  243,  61  L.  E.  A.  445,  102  Am.  St.  Rep. 
416,  It  was  said  that,  if  any  other  were  tbe 
rule,  the  plaintiff  in  many  instances  would 
operate  upon  the  fears  of  defendants  and 
get  from  each  full  damages  for  the  trespass 
committed.  While  this  argument  from  In- 
convenience is  In  a  measure  cogent,  it  does 
not  justify  defendant's  conclusion  in  this 
case.  Competent  parties  are  fully  protected 
In  their  freedom  to  make  lawful  contracts. 
Ag^reements  to  avoid  litigation  are  lawful 
contracts.  Negotiations  leading  to  them  are 
protected.  They  are  both  encouraged  and  en- 
forced. When  competent  parties  have  writ- 
ten out  tbe  terms  upon  which  they  have 
agreed,  tbe  contract  must  be  reasonably  con- 
strued, so  as  to  carry  out  tbelr  intentions. 
In  the  particularly  well-considered  case  of 
BIoss  V.  Plymale,  8  W.  Va-  393,  100  Am.  Dec. 
752-754,  Brown,  C.  J.,  said:  "No  release  is 
allowed  by  Implication.  It  must  be  the  ad- 
mitted result  of  the  terms  of  the  instrument 
which  contains  the  stipulation.  Hence  it  is 
that  a  covenant  not  to  sue  one  joint  debtor 
or  trespasser,  although  It  operates  between 
the  admitted  parties,  does  not  extend  to  tbe 
others."  Such  a  covenant  is  an  agreement 
for  the  benefit  of  the  parties  named,  and  for 
tbem  only.  Other  Joint  tort-feasors,  not  par- 
ties thereto,  are  entitled  to  no  contract  bene- 
fit thereunder.  In  a  multitude  of  cases,  this 
general  rule  as  to  covenant  not  to  sue  baa 
been  applied,  and  full  recovery  had  against 
other  persons  jointly  liable.  There  can,  of 
course,  be  but  one  satisfaction  of  a  cause  of 
action.  An  unqualified  release  imports  full 
satisfaction.  Tlierefore  it  avails  to  bar  sub- 
sequent recovery  of  damages  for  a  cause  of 
action  which  bas  been  discharged;  that  is, 
the  release  of  one  is  tbe  release  of  all.  A 
release  which  is  expressly  in  part  satisfac- 
tion only,  by  parity  of  reasoning,  has  been 
held  to  reduce  the  amount  subsequently  re- 
coverable. Defendant  refers  us  to  authori- 
ties which  bave  so  held.  Thus  in  Ellis  v.  Els- 
son,  50  Wis.  138.  6  N.  W.  518,  36  Am.  Rep. 
830,  an  action  for  trespass  to  realty,  to  which 
defendant  especially  refers  us,  the  court  held: 
"In  the  absence  of  any  technical  release  or 
discharge,  under  seal,  of  one  joint  trespasser, 
the  receipt  of  money  from  one,  with  an 
agreement  not  to  prosecute  him,  discharges 
the  others  only  where  such  money  is  received 


as  an  accord  and  satisfaction  for  the  whole 
Injury.  Where  It  Is  received  only  as  part  sat- 
isfaction, It  discharges  the  other  pro  tanto." 
As  to  the  absence  of  merit  In  the  reserva- 
tion appearing  in  that  case,  see  McBride  v. 
Scott,  132  Mich.  176-182,  93  N.  W.  243,  61  L. 
R.  A.  445, 102  Am.  St  Bep.  416.  Other  cases 
involving  the  same  principle  will  be  found 
analyzed  In  a  note  to  Abb  v.  Railway  Co., 
28  Wash.  428,  68  Pac.  954,  58  L.  B.  A.  293- 
301,  "(b)— Partial  Satisfaction."  Cf.  Bren- 
nan  v.  Electric  Co.,  120  111.  App.  461-47& 

In  the  case  at  bar  the  statute  limited  the 
amount  of  recovery  to  $5,000.  The  agree- 
ment, as  has  been  pointed  out,  was  not  a  re- 
lease at  all,  but  an  optional  covenant  not  to 
sue.  The  agreement  was  not  In  the  nature 
of  a  receipt,  of  an  accord  and  satisfaction, 
^or  of  a  settlement  of  a  claim,  in  whole  or  in 
part  It  excluded  the  idea  of  satisfaction, 
either  partial  or  raitire.  It  was  expressly 
conditional.  In  a  named  contingency  plain- 
tiff was  entitled  to  return  the  consideration 
paid  and  to  sue  the  telephone  company.  In 
this  view  it  is  nnnecessary  to  consider  the 
further  questions  whether  the  telephone  com- 
pany and  the  telegraph  company.  In  view  of 
the  absence  of  any  concert  of  action,^  were 
joint  tort-feasors  in  the  technical  sense 
(compare  Chapman  v.  Pittsburg  By.  Co. 
[C.  O.]  140  Fed.  784,  affirmed  Pittsburg  By. 
Co.  V.  Chapman,  145  Fed.  886,  76  C.  C.  A. 
418,  and  Thomas  v.  Railway  Co.,  194  Pa. 
514,  45  Atl.  344,  vrlth  Hartigan  v.  Dickson, 
81  Minn.  284,  83  N.  W.  1091),  and  whether 
tbe  telephone  company  was  or  was  not  in 
fact  or  in  law,  liable  at  all  (see  Snyder  v. 
T.  Co.,  135  Iowa,  215,  112  N.  W.  776,  14  K 
R.  A.  [N.  S.]  321;  Pickwick  v.  McCaulIff,  193 
Mass.  70,  78  N.  B.  730,  8  Am.  &  Eng.  Ann. 
Oas.  1041;  Boblnson  v.  Bail  way  Co.,  80  Vt 
129,  66  Atl.  814,  12  Am.  &  Eng.  Ann.  Cas. 
1060-1065). 

A  number  of  alleged  trial  errors  have  been 
assigned.  Most  of  the  objections  to  rulings 
on  evidence  were  addressed  to  exclusion  by 
the  trial  court  of  testimony  as  to  the  experi- 
ence of  the  deceased.  In  part  at  least,  the 
objections  were  withdrawn.  In  part  they 
were  addressed  to  conclusions  purely  and 
were  properly  excluded.  The  testimony  ful- 
ly showed  the  facts  from  which  the  in- 
ference of  tbe  experience  of  deceased  nec- 
essarily flowed.  Objections  as  to  testimony 
concerning  the  conditions  of  the  insulation 
on  defendant's  wires  the  morning  after  tbe 
accident  were  properly  overruled.  Snyder 
V.  T.  Co.,  135  Iowa,  215,  112  N.  W.  776, 
14  I*  E.  A.  (N.  S.)  321-326.  The  charge 
of  the  court  as  a  whole  laid  down  familiar 
and  correct  principles.  Its  charge  that  the 
testimony  of  the  experts  was  not  binding  on 
the  jury  was  correct,  within  Moratzky  v. 
Worth,  74  Minn.  146,  76  N.  W.  1032  The 
other  assignments  of  error,  we  find,  do  not 
justify  either  special  mention  or  reversal. 

Affirmed. 


Digitized  by 


Google 


504 


122  NOBTHWBSTBfiN  RBPOBTBB. 


(Mich. 


BAWIiINGS  T.  CLYDE  PLANK  &  MACAD- 
AMIZED ROAD  CO. 
(Supreme  Court  of  Michigan.    Sept.  21,  1909.) 

1.  Dau A0E8  (8  34*)  —  Pkhsonal  Injuries  — 

AOORAVATION   OF  EXISTING   TBOUBLE. 

That  plaintiff  had  a  diseased  condition  of 
one  leg  would  not  bar  a  recovery  for  an  injur; 
to  the  other  leg  or  other  parts  of  the  body  caus- 
ed solely  by  and  resulting  from  the  accident, 
though  he  was  more  susceptible  to  suffering  be- 
cause of  other  ailments  or  disease. 

[Ed.  Note.— For  other  cases,  see  Damages, 
Cent  Dig.  i  43 ;   Dec  Dig.  S  34.*] 

2.  Dauages   ($  216*)— Pebsonai.  Injturieb— 
Instbuctions. 

In  an  action  for  negligent  injuries,  where 
it  appeared  that  prior  to  the  injuries  sued  for 

ElaintiG^  had  sustained  other  injuries  from  which 
e  still  suffered,  an  instruction  as  to  defendant's 
liability  for  aggravation  of  existing  trouble  held 
to  fully  protect  defendant's  rights. 

[Ed.  Note. — For  other  cases,  see  Damages, 
Cent.  Dig.  §|  548-555 ;   Dec.  Dig.  i  216.*] 

3.  WiTNKssEs  (J  817*)— Ckedibilitt  —  False 

SWEABINO. 

The  false  swearing  of  a  witness  must  be 
intentional  or  willful  to  justify  a  jury  in  disre- 
garding his  testimony  entirely. 

[fM.  Note. — For  other  cases,  see  Witnesses, 
Cent.  Dig.  I  1081 ;    Dec.  Dig.  i  317.*] 

4.  Negligence  (8  138*)— Febsonal  Injubiss 
— Bubden  of  Pboof— Instbuctions. 

Where,  in  an  action  for  negligent  injuries, 
the  evidence  was  conflicting  on  material  points, 
defendant  was  entitled  to  an  instruction  that 
plaintiff  had  the  burden  of  proving  all  the  mate- 
rial facts  necessary  to  his  recovery  by  a  pre- 
ponderance of  the  evidence. 

[EM.  Note.— For  other  cases,  see  Negligence, 
Cent  Dig.  g  355;    Dec.  Dig.  |  138.*] 

Error  to  Circuit  Court,  St  Clair  County; 
Harvey  Tappan,  Judge. 

Action  by  Harry  Rawllngs  against  tlie 
Clyde  Plank  &  Macadamized  Road  Company. 
Judgment  for  plaintiff,  and  defendant  brings 
error.    Reversed,  and  new  trial  ordered. 

Argued  before  BLAIR,  C.  J.,  and  MONT- 
GOMERY, OSTRANDER,  HOOKER,  and 
BROOKE,  JJ. 

Moore  &  Wilson,  tor  appellant  Jobn  B. 
McIIwain  and  Frank  T.  Wolcott  lor  appel- 
lee. 

BROOKE,  3.  Tbe  plaintiff  in  the  case,  a 
young  man  about  26  years  of  age,  was  in- 
jured on  the  22d  day  of  November,  1905, 
upon  a  toll  road  controlled  by  the  defendant 
company.  It  appears  that  he  was  engaged 
as  salesman  for  tbe  Singer  Sewing  Machine 
Company,  and  was  driving  along  tbe  highway 
late  at  night  Situated  in  the  highway  and 
across  a  ravine  thereon  is  a  bridge  some  30 
feet  long  and  14  or  16  feet  In  width.  The 
ravine  was  approximately  15  feet  in  depth. 
The  defendant  company  had  permitted  the 
railing  upon  the  east  side  of  the  bridge  to 
rot  away  and  become  displaced.  The  railing 
had  been  missing  for  upwards  of  a  year 
prior  to  the  accident  The  night  In  question 
was  very  dark,  and  the  bridge  was  some- 


what overhung  by  trees.  Upon  reaching  the 
bridge,  the  horse,  a  quiet  one,  either  stumbled 
or  shied,  and  the  front  wheel  of  the  wagon  in 
which  the  plaintiff  was  riding  dropped  from 
the  east  edge  of  the  bridge,  precipitating  the 
plaintiff  and  his  companion  to  the  bottom  of 
the  ravine,  where  they  alighted  upon  broken 
timbers  and  planks.  Plaintiff  was  able  to 
reach  the  toll  gate  in  the  vicinity,  and  was* 
from  there  taken  to  the  city  of  Port  Huron, 
where  he  received  medical  treatment  for  his 
bruises.  The  injuries  complained  of  by  the 
plaintiff  caused  pain  in  the  stemach  and  side, 
limbs,  and  in  one  foot  After  being  treated 
in  Port  Huron  for  about  three  weeks,  be 
was  removed  to  bis  father's  home,  where 
he  remained  for  about  three  months,  and  was 
then  removed  to  a  hospital  in  Detroit  where 
he  was  operated  upon.  Both  knees  had  be- 
come very  much  swollen.  Tbe  operation 
performed  in  Detroit  was  that  of  inserting 
rubber  tubes  through  the  affected  part  of 
the  knees  for  tbe  purpose  of  draining  off 
the  fluid  that  had  accumulated  there.  Tbe 
plaintiff  recovered  to  some  extent  but  had 
been  unable  to  perform  any  labor  up  to  the 
time  of  the  triaL 

The  plaintiff  averred  in  his  declaration 
that  at  the  time  of  receiving  said  injuries 
he  was  26  years  of  age  and  in  good  health. 
Upon  cross-examination  he  testified  that  be 
bad  received  an  Injury  about  six  years  prior 
to  the  happening  of  the  injury  complained 
of  in  this  case.  He  testified  that  he  slipped 
through  a  hayrack,  hurting  one  of  bis  legs. 
He  further  gave  testimony  tending  to  show 
that  from  tbe  time  of  the  happening  to  him 
of  this  earlier  injury  he  had  suffered  more 
or  less  constantly  in  tbe  left  knee;  that  it 
would  swell  after  a  day's  work  and  give 
him  pain,  and  the  cords  would  contract  But 
he  likewise  testified  as  follows:  "I  didn't 
experience  any  difficulty  in  other  parts  of 
my  body  as  results  of  that  pain  at  any  time. 
I  bad  no  stomach  trouble  or  difficulties  of 
any  kind  or  character  at  any  time  prior  to 
this  accident.  •  •  •  It  was  my  knee  that 
bothered  me.  •  •  •  My  leg  never  laid 
me  up  a  day."  He  further  gave  testimony 
tending  to  show  that  after  the  receipt  of  the 
injury  complained  of  in  the  case  at  bar  he 
suffered  pain  in  his  arms,  his  right  leg  as 
well  as  his  left  leg— particularly  his  back 
and  bowels.  At  the  close  of  plaintiff's  case, 
defendant's  counsel  moved  for  a  direction  of 
a  verdict  upon  the  ground  that  there  was 
a  fatal  variance  between  the  allegation  of 
tbe  declaration  and  the  proof  offered  on  be- 
half of  tbe  plaintiff.  The  court  overruled 
the  motion,  upon  which  ruling  defendant  as- 
signed error.  We  are  of  opinion  that  the 
court  did  not  err  in  so  holding.  The  fact 
that  plaintiff  had  a  diseased  condition  of  one 
leg  would  not  bar  a  recovery  for  an  injury 
to  the  other  leg  or  other  parts  of  the  body 


•For  other  com*  see  Mm*  topic  and  lecUon  NUMBER  ta  Dae.  4  Am.  Digs.  U07  to  date,  4  Reporter  ladexee 


Digitized  by 


Google 


Mich.) 


RAWLINGS  ▼.  CLTDE  PLANE  &  MACADAMIZED  ROAD  CO. 


605 


"caused  solely  by  and  resulting  from  the 
accident,  although  he  was  more  susceptible 
to  suffering  because  of  other-  ailments  or 
disease."  Hunter  t.  Durand,  1S7  Mich.  63, 
100  N.  W.  191. 

Upon  this  branch  of  the  case  the  trial 
court  Instructed  the  Jury  as  follows:  "In  re- 
lation to  this  branch  of  the  case,  you  are  In- 
structed that  If  you  find  from  the  evidence 
that  rheumatic  or  other  disorders  actually 
existed  In  plalntifTs  legs  or  knees  prior  to 
the  accident,  and  you  also  find  that  the  In- 
juries to  bis  knees  and  legs  received  In  No- 
vember 22,  1905,  by  means  of  the  accident, 
augmented  or  aggravated  or  made  more  a 
pre-existing  disease  or  disorder  or  lameness, 
then  there  can  be  no  recovery  for  any  In- 
juries on  account  of  such  augmented  Injury, 
disease,  or  condition,  nor  on  account  of  pain 
and  suffering  resulting  therefrom.  Now,  let 
me  make  this  matter  plain.  If  the  injuries 
to  the  legs  or  knees  on  November  22,  1905, 
were  in  any  degree  an  aggravation  of  a  for- 
mer injury,  disease,  or  condition  of  either  or 
both  logs  or  knees,  then  there  can  be  no 
recovery  by  plaintiff  on  account  of  such  in- 
juries that  simply  aggravated  the  former 
conditions.  Tou  are  Instructed  further,  gen- 
tlemen, upon  this  branch  of  the  case,  that 
the  fact  that  plaintiff  suffered  an  Injury  to 
his  legs  some  years  prior  to  the  accident, 
and  that  its  effects  had  continued  to  the 
time  of  the  accident  in  the  form  of  lameness, 
rheumatism  or  otherwise,  does  not  deprive 
the  plaintiff  of  a  right  to  recover  for  In- 
juries that  are  directly  and  solely  attributa- 
ble to  the  accident  Itself,  unaffected  by  for- 
mer conditions.  It  Is  your  province  to  con- 
sider all  of  the  evidence  of  those  former  in- 
juries and  conditions,  and  also  the  evidence 
of  the  general  health  of  the  plaintiff,  and  to 
give  It  such  weight  as  you  think  it  deserves 
upon  the  question  of  their  effect  upon  the 
real  Injuries  that  the  plaintiff  now  suffers 
and  their  effect  as  to  mitigating  or  reducing 
damages  to  be  awarded  to  him,  if  any.  But, 
subject  to  these  precautions,  the  question  for 
you  to  determine  Is  this:  What  are  the 
plalntifTs  Injuries,  losses,  and  sufferings  that 
are  directly  and  solely  traceable  and  attribu- 
table to  the  accident?  That  Is  the  meaning 
of  It  And,  If  you  find  from  the  evidence 
that  the  plaintiff  suffered  Injuries  that  are 
the  direct  and  sole  result  of  the  accident, 
then.  If  yon  find  for  the  plaintiff  under  these 
circumstances,  you  will  proceed  to  award  him 
damages  commensurate  with  such  Injuries." 
Under  the  authority  of  Hunter  v.  Durand, 
supra,  we  think  this  charge  was  justified, 
and  that  the  rights  of  the  defendant  were 
fully  protected  thereby. 

Defendant's  fifth  request  to  charge  was  as 
follows:  "If  you  should  find  that  any  wit- 
ness who  has  been  produced  and  sworn  upon 


the  trial  of  this  cause,  has  not  sworn  truth- 
fully to  all  the  material  facts  In  reference  to 
which  be  has  been  interrogated,  then  I  charge 
you  that  you  should  carefully  scrutinize  all 
of  the  testimony  of  said  witness;  and  you 
would  have  a  right  to  entirely  Ignore  the 
testimony  of  any  witness  who  had  not  truth- 
fully testified  as  to  any  of  the  material  facts ' 
in  said  cause."  This  request  is  not  a  proper 
statement  of  the  law,  inasmuch  as  It  Is  silOQt 
upon  the  question  of  intent  As  was  said  by 
this  court  In  the  case  of  Gerardo  v.  Brush, 
120  Mich.  405,  79  N.  W.  646:  "The  false 
swearing  must  be  Intentional  or  willful  to 
justify  a  jury  In  disregarding  the  testimony 
entirely."  The  request  was  evidently  di- 
rected to  the  testimony  of  the  plaintiff  him- 
self, and,  while  under  the  authority  of 
Gerardo  v.  Brush,  supra,  we  cannot  reverse 
the  judgment  because  of  its  refusal,  we  are 
of  the  opinion  that  the  court,  Its  attention 
having  been  directed  to  the  matter,  should 
have  properly  instructed  the  jury  upon  the 
point  raised,  because  of  the  fact  that  the 
plaintiff's  testimony  upon  direct  examination 
was  In  conflict  In  some  respects  with  his 
testimony  upon  cross-examination  and  with 
the  testimony  of  numerous  other  witnesses. 

Error  is  asslg^ned  upon  the  court's  refusal 
to  give  defendants'  eighteenth  request,  which 
was  as  follows:  "I  charge  you  that  the 
burden  of  proof  of  all  the  material  facts 
necessary  to  substantiate  the  plalntifTs  claim 
is  on  the  plaintiff,  and  he  must  prove  each 
and  every  element  of  his  case  by  a  preponder- 
ance of  the  evidence,  and,  if  he  falls  to  do  so, 
yon  must  find  no  cause  of  action."  Upon 
this  point  the  court  charged:  "It  is  also  the 
duty  of  the  plaintiff  to  prove  to  your  satis- 
faction by  a  fair  preponderance  of  all  of 
the  evidence  that  at  the  time  he  was  Injured, 
if  you  so  find,  he  was  himself  free  from  neg- 
ligence that  caused  or  contributed  to  cause 
the  accident"  The  defendant  had  in  effect 
admitted  its  negligence  in  falling  to  keep  the 
bridge  In  reasoilable  repair.  This  admission 
relieved  the  plaintiff  from  proof  upon  that 
point  but  it  did  not  relieve  him  from  the 
necessity  of  proving  all  the  other  elements 
necessary  to  his  recovery  by  a  fair  preponder- 
ance of  the  evidence.  Among  these  elements 
was  the  question-  of  how  far  the  Injury  com- 
plained of  was  the  cause  of  plaintiff's  sub- 
sequent condition,  and  how  far  that  condition 
was  Induced  by  his  earlier  ailments.  Upon 
this  point  there  was  a  sharp  conflict  in  the 
testimony,  and  nowhere  in  the  charge  of  the 
court  is  the  jury  Instructed  that  the  burden 
of  proof  was  upon  the  plaintiff  as  .to  this 
matter.  This  request  should  have  been  giv- 
en. MiUer  V.  D.  U.  R.,  144  Mich.  1,  107  N. 
W.  714. 

The  judgment  Is  reversed,  and  a  new  trial 
ordered. 


Digitized  by  LjOOQIC 


506 


122  NORTHWESTEBN  BBPORTEB. 


(lUcli, 


F.  B.  HOLMES  &  OO.  t.  CITI  OP  DETROIT. 
(Sapieme  Court  of  Michigan.    Sept.  21,  1906.) 

Sales  (J  71*)— Constbuctiok  or  Oontbact. 

Plaintiff  pioposed  to  furnish  defendant  city 
"d,000  barrels  of  cement,  more  or  less,  as  may 
be  required  by  the  department  of  public  works, 
from  the  date  of  contract  to  Jan.  31,  1907,"  at 
a  certain  price,  and  thereafter  by  written  con- 
tract, made  pursuant  to  an  acceptance  of  the 
proposal,  agreed  to  furnish  at  such  price  "all 
the  cement  that  may  be  required  by  the  city 
and  ordered  by  the  department  of  public  worlcs 
in  and  during  the  year  ending  January  31, 
1907,"  said  cement  to  be  deliTered  in  such  quan- 
tities and  at  such  times  as  the  department  might 
direct  Beld,  that  plaintiff  was  bound  to  fur- 
nish all  the  cement  required  by  defendant  dur- 
ing the  year,  and  that  Uie  contract  was  not  com- 
plied with  by  furnishing  5,000  barrels  or  over, 
but  less  than  the  number  required. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent 
Dig.  S  193;   Dec.  Dig.  f  71.»] 

Error  to  Circuit  Court,  Wayne  County; 
Alfred  J.  Murphy,  Judge. 

Action  by  F.  B.  Holmes  &  Co.  against  the 
City  of  Detroit  Judgment  for  plaintiff,  and 
It  brings  error.    Affirmed. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  McALTAY,  and  BROOKE, 
JJ. 

Gray  &  Gray,  for  appellant  Walter  Bar- 
low (P.  J.  M.  Hally,  of  counsel),  for  ap- 
pellee. 

McALVAT,  J.  Plaintiff  brought  suit 
against  defendant  to  recover  for  an  amount 
claimed  to  be  due  for  certain  cement  furnish- 
ed by  It  under  a  certain  agreement  entered 
into  between  the  parties.  Defendant  on  Jan- 
uary 11,  1906,  through  the  department  of 
public  works,  advertised  for  proposals  for 
furnishing  "5,000  barrehs  of  Portland  cement 
more  or  less  as  may  be  required  by  the 
department  of  public  works  from  the  date  of 
contract  to  January  31, 1907,  "to  be  delivered 
In  Backs  at  a  warehouse  within  the  con- 
trol of  the  board  in  a  designated  locality. 
Plaintiff  tendered  a  proposal  In  writing  to 
furnish  the  cement  in  sacks  "as  per  your 
advertisement  of  January  11,  copy  of  which 
is  hereto  attached,"  at  $1.69  per  barrel,  and 
to  repurchase  the  sacks  at  7^  cents  each. 
On  February  loth  following  the  parties  en- 
tered into  a  written  contract,  in  which  plain- 
tiff agreed  "to  furnish  all  the  •  •  •  Port- 
land cement  that  may  be  required  by  the  city 
of  Detroit  and  ordered  by  the  department  of 
public  works  In  and  during  the  year  end- 
ing January  81,  1907,  •  •  •  said  ce- 
ment to  be  delivered  in  such  quantities  and 
at  such  times  as  the  department  of  public 
works  may  direct  •  ♦  •  Tbe  furnishing 
of  said  Portland  cement  to  be  according  to 
the  specifications  and  proposals  hereunto  at- 
tached and  made  a  part  of  this  contract" 
The  agreement  of  defendant  in  this  contract 
was  "to  pay  the  said  first  party  the  com- 
pensation in  the  manner  provided,  that  is 


to  say,  the  sum  of  one  dollar  and  alxty-nine 
cents  ($1.69)  for  each  and  every  barrel  of 
Portland  cement  delivered  and  satisfactory 
to  the  Department  of  Public  Works."  A 
bond  was  required  and  furnished  by  plaintUt 
to  the  defendant  in  the  sum  of  |3,500,  con- 
ditioned that  if  plaintiff,  "who  has  executed 
the  annexed  contract  for  furnishing  all  the 
Portland  cement  that  may  be  required  and 
ordered  by  the  department  of  public  works 
in  and  during  the  year  ending  January  31, 
1907,  •  •  •  shall  in  all  respects  well  and 
faithfully  execute  and  perform,"  etc.  Plain- 
tiff also  furnished  as  required  a  bond  to  the 
people  of  the  state  of  Michigan  in  the  sum 
of  $3,500,  which  recites  that  plaintiff  has 
agreed  "to  furnish  all  the  Portland  cement 
that  may  be  required  and  ordered  by  the 
department  of  public  worlcs  in  and  during 
the  year  ending  with  January  81, 1907."  The 
foregoing  papers,  together  with  the  specifica- 
tions for  Portland  cement,  were  attached  and 
constituted  the  contract  between  the  par- 
ties. Under  this  agreement,  according  to 
Its  terms,  plaintiff  having  furnished  6,242% 
barrels  of  Portland  cement  upon  orders  of 
the  department  of  public  works,  on  Septem- 
ber 4,  1906,  wrote  to  defendant,  as  follows: 
"Mr.  J.  J.  Haarer,  Commissioner  Dept  of 
Public  Works,  Detroit,  Mich.— Dear  Sir:  In 
accordance  with  advertisement  for  Portland 
cement  we  were  to  supply  you  five  thousand 
barrels,  more  or  less,  and  in  this  connection 
would  say  we  have  supplied  up  to  the  first 
of  September  6242%  barrels,  and  since 
then  a  considerable  quantity.  We  think  the 
more  or  less  quantity  should  not  exceed  20 
%  on  the  face  of  the  amount,  and  as  ce- 
ment has  advanced  very  materially  and  we 
are  losing  money  on  every  barrel  of  cement 
we  are  furnishing  to  you  we  tiilnk  that  we 
have  fulfilled 'our  agreement  and  should  not 
be  expected  to  fill  any  more  except  at  an  ad- 
vanced price,  which  we  will  make  to  you 
at  Just  the  cost  of  the  material.  Yours  re- 
spectfully, F.  B.  Holmes  &  Company."  On 
September  6th  plaintiff  refused  an  order  for 
100  barrels  of  cement  given  by  defendant, 
and  on  the  following  day  again  wrote: 
"Dear  Sir:  Under  our  contract  for  the  fur- 
nishing of  Portland  cement  to  the  city  of 
Detroit,  based  upon  your  call  for  proposals, 
dated  January  11th,  1906,  we  have  upon 
your  order  already  delivered  over  6,200  bar- 
rels. This  Is  more  than  20  per  cent  in  ex- 
cess of  the  5,000  barrels  specified  in  your 
call.  We  are  advised  that  we  are  not  under 
obligation  to  furnish  any  more  cement  and 
you  are  notified  hereby  that  we  shall  not 
furnish  any  more  cement  under  said  con- 
tract" On  the  same  date  the  commissioner 
of  public  works  notified  plaintiff  in  writing 
that  the  contract  would  be  enforced,  and 
that  the  cement  required  would  be  purchased 
in  the  open  market,  and  plaintiff  and  Its 


*For  other  esses  see  same  topic  and  section  NUMBER  in  D«o.  4  Am.  DiSK'UOT  to  date,  *  Reporter  Indazei 


Digitized  by  LjOOQ  l€ 


Mlcb.) 


F.  B.  HOLMES  &  CO.  v.  CITY  OP  DETROIT. 


607 


bonding  company  held  responsible  for  excess 
in  cost 

The  following  facts  are  stipulated : 

"First  At  the  time  the  notice  of  Septem- 
ber 7,  1906,  was  given,  the  plaintiff  had  de- 
livered 6,833^  barrels  of  cement  at  the  ag- 
gregate contract  price  of  $10,878.73,  upon 
which  there  had  been  paid  in  sacks  and  mon- 
ey $9361.25,  leaving  unpaid  $1,517.4& 

"Second.  After  September  7,  1906,  and  prior 
to  January  31,  1907,  the  plaintiff  furnished 
and  delivered  to  the  defendant  3,715  barrels 
of  cement  as  set  forth  in  the  notice  attached 
to  defendant's  plea,  all  of  which  has  been 
paid  for  in  full  by  the  defendant  such  pay- 
ment being  $1,079.04,  in  excess  of  what  the 
defendant  would  have  been  required  to  pay 
under  the  prices  named  in  said  contract  of 
February  15,  1906. 

"Third.  That  at  varying  times,  between  the 
13th  and  21st  days  of  September,  1906,  de- 
fendant purchased  in  the  open  market  and 
at  the  market  prices  and  values  from  other 
parties  and  paid  for  1,017%  barrels  of  ce- 
ment at  a  cost  of  $1,966.77,  which  was  $425.- 
97  In  excess  of  what  the  defendant  would 
have  been  required  to  pay  at  the  prices  nam- 
ed In  said  contract  of  February  15,  1906. 

"Fourth.  That  after  September  7,  1906, 
and  prior  to  January  31,  1907,  In  addition 
to  the  amount  delivered  and  paid  for  as  set 
forth  In  paragraph  2,  plaintiff  furnished  and 
delivered  to  defendant  832  barrels  of  cement 
644  barrels  at  $1.68  per  barrel,  and  188  bar- 
rels at  $1.98  per  barrel,  making  a  total  of 
$1,453.17,  being  $242.29  more  than  the  price 
named  in  the  contract  of  February  15th. 
Against  this,  defendant  is  entitled  to  $503.60 
credit  for  sacks  returned,  and  $11.39  for  6% 
barrels  of  cement  returned  to  plaintiff,  which 
had  been  paid  for  in  the  amount  Included 
under  paragraph  2. 

"Fifth.  All  of  the  cement  received  by  the 
defendant  after  September  7th,  as  herein- 
before stipulated,  was  required  by  the  de- 
partment of  public  works.  If,  after  giving 
the  notice  of  September  7,  1906,  the  plaintiff 
was  not  obliged  to  furnish  any  more  cement 
under  the  contract  of  February  15,  1906, 
then  the  plaintiff  is  entitled  to  recover  from 
defendant  (including  Interest)  $2,703.42;  but 
If,  on  the  other  hand,  the  plaintiff  was  bound, 
after  giving  the  notice  of  September  7,  1906, 
to  continue  furnishing  cement  under  the  con- 
tract of  February  15,  1906,  then  there  should 
be  deducted  from  said  amount  the  excess 
cost  of  the  cement  gotten  by  defendant  after 
September  7,  1906,  to  wit  $1,747.32,  leav- 
ing the  net  amount  due  plaintiff  (with  in- 
terest) $781.37." 

Plaintiff  requested  the  court  to  direct  a 
verdict  In  Its  favor  for  the  sum  of  $2,703.42. 
This  request  was  refused,  and  a  verdict  was 
directed  for  plaintiff  for  $781.37.  We  are 
asked  to  reverse  this  Judgment  upon  claimed 
errors  of  the  court,  which  are  assigned  as 
follows: 


(1)  Because  the  court  refused  to  admit 
testimony  as  to  the  amount  of  cement  de- 
livered by  plaintiff  to  defendant  under  the 
contract  of  1905. 

(2)  Because  the  court  refused  to  admit 
testimony  as  to  the  amount  of  cement  which 
plaintiff  provided  for  the  purpose  of  filling 
the  contract  (Exhibit  1). 

(3)  Because  the  court  refused  to  direct  a 
verdict  for  plaintiff  for  $2,703.42. 

There  Is  no  dispute  as  to  the  facts  In  the 
case.  It  turns  upon  the  construction  of  the 
written  agreement  between  the  parties.  The 
contentions  of  the  plaintiff  are  (a)  that  the 
contract  covers  nothing  beyond  5,000  barrels 
"more  or  less"  and  was  fulfilled  when  6,833^ 
barrels  had  been  delivered ;  (b)  that  this  was 
a  mere  offer  by  plaintiff  to  furnish  cement  at 
a  given  price  and  the  offer  was  withdrawn 
before  acceptance  either  for  a  fixed  amount 
or  what  the  city  required ;  (c)  that  the  agree- 
ment was  unilateral.  The  specifications  and 
proposals  were  made  part  of  the  contract 

It  will  not  be  necessary  in  giving  a  con- 
struction to  this  agreement  to  go  outside  of 
the  writings  which  are  attached  to  and  made 
a  part  of  it  The  proposals  solicited. by  the 
advertisement  were  "for  furnishing  and  de- 
livering ♦  ♦  •  according  to  the  specifica- 
tions 5,000  barrels  of  Portland  cement  more 
or  less,  as  may  be  required  by  the  depart- 
ment of  public  works  from  date  of  contract 
to  January  3lBt,  1907."  The  proposal  sub- 
mitted by  plaintiff  under  and  according  to 
the  terms  of  this  advertisement  was  accepted. 
The  plaintiff  and  defendant  entered  into  the 
contract  on  February  15,  1906,  to  furnish 
"all  the  Portland  cement  •  •  •  that  may 
be  required  by  the  city  of  Detroit  and  or- 
dered by  the  department  of  public  works  in 
and  during  the  year  ending  January  31,  1907, 
and  defendant  agreed  to  pay  the  stipulated 
price  for  each  barrel  of  cement  delivered. 
The  department  of  public  works  is  one  branch 
of  the  municipal  government  of  Detroit 
This  department  alone  could  order  the  ce- 
ment which  was  to  be  used  in  the  public 
Improvements  carried  on  by  it  The  depart- 
ment was  not  the  mimlclpality,  so  we  find 
In  the  contract  the  agreement  to  furnish  the 
city  of  Detroit  all  the  Portland  cement  that 
may  be  required  by  it  and  ordered  by  the 
department  of  public  works. 

We  may  eliminate  the  contention  that  this 
was  a  unilateral  contract.  The  proposition 
of  plaintiff  was  accepted  by  defendant  It 
was  certainly  agreed  that  plaintiff  should 
furnish  cement,  and  defendant  would  pay  for 
it  After  the  contract  of  February  15th,  this 
proposition  was  not  subject  to  withdrawal. 
This  contract  covered  all  the  cement  required 
by  defendant  during  the  year  ending  January 
31,  1907,  for  the  use  of  the  department  of 
public  works.  It  was  a  mutual  agreement, 
binding  upon  both  parties.  We  find  no  diffi- 
culty in  ascertaining  the  prime  object  and 
purpose  of  these  parties  as  expressed  In  the 
writings  considered.    They  had  In  mind  so 


Digitized  by  VjOOQ  l€ 


508 


122  NOBTHWESTEBN  REPORTEB. 


(Mich. 


many  barrels  of  cement  as  the  operations  of 
this  department  would  require  during  this 
period.  The  exact  amount  of  cement  which 
would  be  required  could  not  be  known  at  the 
time  of  entering  into  the  contract,  as  the  first 
meeting  of  the  board  of  estimates  does  not 
occur  until  In  March.  The  clause  "5,000  bar- 
rels of  Portland  cement,  more  or  less,"  was 
the  expression  of  an  estimate  subject  to  the 
controlling  object  of  the  agreement  express- 
ed In  the  words  In  the  contract,  "all  the 
Portland  cement  that  may  be  required  by  the 
city  of  Detroit  and  ordered  by  the  depart- 
ment of  public  works,"  the  last  clause  ex- 
pressing the  method  required  to  secure  the 
delivery  of  the  property  to  defendant  This 
Is  not  within  the  line  of  cases  where  the 
agreement  construed  turned  upon  the  accept- 
or's "wish,"  "desire,"  or  other  like  contin- 
gency. There  Is  no  reason  that,  under  this 
contract  with  the  municipality,  the  same  rule 
should  not  be  applied  as  in  the  case  of  an 
established  business  In  construing  the  clause 
"as  may  be  required"  and  the  construction  be 
given  as  If  reading  "all  of  the  Portland 
cement  which  may  be  required."  This  case 
Is  within  the  rules  laid  down  in  the  cases 
relied  upon  and  cited  In  the  opinion  of  the 
trial  court,  viz.:  Brawley  v.  U.  S.,  96  U. 
S.  168,  24  L.  Ed.  622 ;  Merrlam  v.  U.  S.,  107 
U.  8.  437,  2  Sup.  Ct.  536,  27  L.  Ed.  631;  Day 
V.  Gross,  69  Tex.  595.  And  also  the  following 
cases:  Coldblast  Transfer  Co.  v.  Kansas 
City  Bolt  &  Nut  Co.,  114  Fed.  77,  62  O.  a 
A.  25,  57  L.  B.  A.  696;  E.  G.  Dalley  Co.  v. 
Clark  Can  Co.,  128  Mich.  691,  87  N.  W.  761. 
See,  also,  Marx  v.  American  Malting  Co.  (C. 
C.  A.)  169  Fed.  582. 
The  judgment  Is  affirmed. 


MONROE  V.  BUSHNELIi 
(Supreme  Court  of  Michigan.     Sept.  21,  1909.) 

1.  Bankbuptct  (I  278*)— Actions  bt  Tbub- 
TEB— Right  of  Action. 

In  order  for  a  trustee  In  bankruptcy  to  re- 
cover a  debt  on  behaif  of  the  estate,  the  rela- 
tion of  debtor  and  creditor  must  have  existed 
between  the  bankrupt  and  the  defendant,  or 
circumstances  must  have  existed  which  equi- 
ty would  bold  equivalent  to  such  relation. 

[Ed.  Note.— For  other  cases,  see  Bankruptcy, 
Dec.  Dig.  I  278.»] 

2.  Bakkbuptct  (J  803*)— Aotionb  bt  Tbub- 

TBB— SDFFICIEWCY  OF  EVIDBNCK. 

In  an  action  by  a  trustee  in  bankruptcy  of 
a  bank  to  recover  money  furnished  by  the  bank 
to  conduct  a  manufacturing  business  under  a 
contract  with  the  manufacturing  corporation, 
evidence  held  to  show  that  the  money  was  not 
furnished  to  defendant,  who  was  the  manager  of 
the  corporation,  so  as  to  make  him  a  debtor  of 
the  bank,  but  was  procured  by  the  bank's  pres- 
ident for  the  company, 

[Ed.  Note.— For  other  cases,  see  Bankruptcy, 
Dec.  Dig.  i  303.*] 

8.   COBPOBATIONS  (f  842*)— OFFICEBS— LIABIL- 
ITY— Contracts. 

Where  defendant  carried  on  a  manufactur- 
ing business  in  the  name  of  a  manufacturing 


company  and  for  its  benefit,  nnder  an  agreement 
that  he  assumed  no  liability  if  the  business  fail- 
ed, he  was  not  liable  to  the  company's  assignee 
for  money  advanced  and  expended  in  the  busi- 
ness under  an  agreement  between  the  company 
and  a  bank. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Dec.  Dig.  {  342.*] 

Appeal  from  Circuit  Court,  Kalamazoo 
County,  in  Chancery;  John  W.  Adams,  Judge. 

Action  by  Stephen  B.  Monroe,  as  trustee  In 
bankruptcy  of  the  Vlcksburg  Exchange  Bank, 
against  William  E.  Bushnell,  Impleaded  with 
others.  From  a  decree  against  the  defendant 
named,  he  appeals.  Reversed,  and  bill  dis- 
missed. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Jackson  &  Fitzgerald  (W.  J.  Candllsh,  of 
coimsel),  for  appellant  Jesse  B.  Cropsey  and 
Dallas  Boudeman,  for  appellee. 

McALVAT,  J.  Complainant  in  this  case, 
aa  trustee  in  bankruptcy  of  the  Vlcksburg 
Exchange  Bank,  a  copartnership,  and  Charles 
li.  Keep,  Fred  W.  Neasmlth,  Eva  A.  Nea- 
smlth,  and  Ella  Cooley,  as  members  of  said 
copartnership,  and  individually  bankrupts, 
filed  his  bill  of  complaint  against  defendant 
Bushnell  and  the  Vlcksburg  Manufactortog 
Company  asking  for:  (1)  An  accounting  with 
defendant  Bushnell  for  the  sum  of  $4,100  in 
cash  furnished  under  a  certain  contract;  (2) 
an  accounting  for  all  sums  for  which  defend- 
ant Bustmell  would  be  liable  to  aocoiint  to 
the  Vlcksburg  Manufacturing  Company  for 
rents  and  profits  arising  out  of  the  operation 
of  Its  business  from  March  4,  1904;  (3)  for  a 
lien  to  be  decreed  upon  all  property  and  ma- 
chinery defendant  Bushnell  may  have  in  and 
about  the  plant  of  the  Vlcksburg  Manufactur- 
ing Company  purchased  from  moneys  ad- 
vanced to  him  Euid  from  income,  gains,  and 
profits  arising  from  the  operation  of  its  busi- 
ness, also  all  bills  receivable  and  book  ac- 
counts arising  from  sales  of  any  manufactur- 
ed goods,  and  all  moneys  received  upon  such 
sales,  and  also  for  an  Injunction  against  said 
Bushnell  to  restrain  him  from  selling,  assign- 
ing, Incumbering,  or  removing  any  of  the 
tools,  machinery,  stock  or  goods,  property, 
and  accounts  of  said  Vlcksburg  Manufactur- 
ing Company.  Elbert  L.  Page,  who  was  a 
member  of  the  copartnership  doing  the  bank- 
ing business,  was  never  individually  declared 
a  bankrupt  The  trustee  complainant  claims 
to  represent  any  rights  of  said  Page  and  also 
any  rights  of  the  Vlcksburg  Manufacturing 
Company  against  defendant  Bushnell  solely 
through  certain  assignments  by  such  parties 
to  him  as  trustee  In  bankruptcy  of  the  bank- 
ing copartnership.  The  Vlcksburg  Manufac- 
turing Company  is  the  name  of  a  domestic 
corporation  formerly  known  as  "Clark  Bros. 
Company,"  which  under  the  statute  has  been 
changed. 

The  theory  upon  which  the  bill  of  com* 


•For  other  cmos  sm  Mme  topic  and  lectlon  NUMBER  In  Dec.  4  Am.  Diss.  1107  to  date,  *  Reporter  IndaxM 


Digitized  by  VjOOQ  l€ 


Hlcb.) 


UOKROE  T.  BUSHNfiLL. 


609 


plaint  1b  framed,  and  nnder  which  the  relief 
prayed  is  claimed,  is:  That,  under  a  certain 
contract  between  Clark  Bros.  Company  and 
defendant  Bnshnell  dated  March  4,  1904,  as 
conaplalnant  construes  it,  defendant  Buahnell 
was  to  take  charge  of  Clark  Bros.'  plant  and 
run  It  for  hlms^;  that  moneys  should  be 
advanced  to  him  as  a  working  capital  to  the 
amount  of  $3,000,  which  he  would  repay,  ac- 
cording to  the  terms  of  said  contract,  which 
will  be  set  forth  later  in  this  opinion.  It 
Is  further  claimed:  Ttiat  Clark  Bros.  Com- 
pany were  then  Indebted  to  the  Vicksburg 
Bank  to  the  amount  of  $5,500,  secured  and 
unsecured,  and  that  to  he  able  to  advance 
money  to  Bushnell  to  carry  on  hia  business 
the  stockholders  of  Clark  Bros.  Company  en- 
tered Into  an  agreement  with  Page,  as  presi- 
dent of  the  bank,  to  pay  certain  assessments 
upon  their  stock,  to  the  amount  of  $2,500,  to 
reduce  said  indebtedness;  that  these  assess- 
ments were  in  a  large  part  paid;  that  then 
Mr.  Page  furnished  defendant  Bushnell  mon- 
ey to  the  amount  of  $4,100  in  the  following 
miinner:  Page  gave  hla  promissory  notes 
from  time  to  time  to  the  banking  firm,  and, 
although  he  was  insolvent,  received  money 
fof  them  which  he  gave  to  Bushnell  as  it 
was  needed  In  the  business,  taking  receipts 
therefor.  The  bill  of  complaint  alleges: 
That  the  Ylcksbhrg  Bank  closed  its  doora  In 
June,  1905,  and  the  firm  was  adjudged  bank- 
mpt  September  4,  1906;  that  this  tmstee 
found  that  Mr.  Page  was  Indebted  to  said 
banking  firm  in  a  sum  of  over  $12,000,  and 
the  trustees  secured  a  Judgment  against  him 
In  the  circuit  court  for  Kalamazoo  county 
for  over  $10,000,  which  Judgment  Included 
the  notes  of  Page,  for  the  moneys  claimed  to 
have  been  advanced  by  him  to  Bushnell ;  and 
that  the  judgment  Is  not  collectible  The 
bill  then  sets  up  at  length  the  dealings  be- 
tween the  Vicksburg  Manufacturing  Company 
under  the  contract  with  It  in  the  name  of 
Clark  Bros.  Company  and  defendant  Bush- 
nell, claiming  that  out  of  these  transactions 
there  arose  a  large  indebtedness,  on  account 
of  rents  and  profits  of  the  business,  due  from 
blm  to  said  company  as  its  agent,  and  on  ac- 
count of  the  fact  that  the  bank  actually  fur- 
nished the  money  to  Bushnell  through  Page, 
and  Page  Is  now  insolvent,  complainant  trus- 
tee should  be  subrogated  to  his  rights  against 
Bushnell  for  the  money  advanced,  and  also 
to  a  Hen  on  the  machinery,  property,  and 
manufactured  goods  so  far  as  purchased  with 
such  money  and  so  far  as  the  same  repre- 
sents gains  and  profits.  There  are  other  al- 
legations of  threats  by  Bushnell  to  remove 
this  property,  or  some  of  it,  upon  which  the 
prayer  for  Injunction  is  based.  The  Vicks- 
burg Manufacturing  C<Hnpany  was  made  a 
party  defendant  by  amendment  to  the  bill, 
on  the  order  of  the  court,  at  the  hearing. 
Its  answer  is  an  admission  of  all  the  materi- 
al allegations  of  the  bill,  and  its  officers  fur- 
nish the  major  part  of  complainant's  oral 
proofs.  Defendant  Bushnell,  traversing  and 
denying  the  allegations  of  the  bill  upon  which 


recovery  can  be  predicated,  claimed:  That 
by  the  terms  of  the  contract  with  Clark  Bros. 
Company  no  money  was  agreed  to  be  advanc- 
ed to  him  personally,  or  ttiat  he  was  person- 
ally liable  to  pay  the  same,  but  that  he  was 
to  take  charge  of  and  manage  the  business 
of  said  company,  which  he  did;  that  all  the 
money  was  furnished  by  the  bank  to  the  com- 
pany and  was  used  in  its  business;  that  Page 
or  the  Vicksburg  Bank  never  furnished  him 
any  money,  or  took  his  receipts;  that  be  act- 
ed as  manager  of  the  Vicksburg  Manufactur- 
ing Company,  and  in  no  other  capacity;  that 
he  accounted  for  everything  which  came  in- 
to his  bands,  and  is  not  indebted  to  the  com- 
plainant or  the  company.  Issue  was  Join- 
ed and  the  case  heard.  A  decree  for  an 
accounting  was  ordered,  and  later  a  final  de- 
cree entered  against  defendant  Bushnell  for 
the  sum  of  $3,308.45,  from  which  he  has  ap- 
pealed to  this  court 

The  court,  in  the  opinion  directing  the 
decree,  held  that  defendant  "Bushnell  mis- 
represented the  condition  of  his  business  at 
and  about  the  end  of  the  first  year,  and 
thereby  misled  the  stockholders  and  direct- 
ors of  the  Vicksburg  Manufacturing  Com- 
pany and  in  effect  worked  a  fraud  upon  them, 
and  hence  the  legal  situation  created  is  that 
Bushnell  is  a  debtor  to  complainant  for  the 
moneys  furnished  Bushnell,  to  wit,  $4,061.S7. 
What  Bushnell  may  have  used  said  money, 
or  any  part  thereof,  for,  Is  of  no  consequence, 
and  he  Is  obligated  to  pay  the  same  back  to 
the  complainant  as  assignee."  The  opinion 
then  states:  "Bushnell  will  be  charged  with 
$4,061.87.  He  should  then  have  credit  for 
$980.72,  leaving  a  balance  of  $3,081.15.  This 
latter  sum  will  draw  interest  at  6  per  cent 
from  March  4,  1905,  to  date.  From  this 
amount  so  obtained  credit  should  be  given 
for  the  property  Bushnell  left  at  the  plant, 
to  wit,  $359.62,  plus  interest  at  6  per  cent, 
from  March  4,  1904,  to  this  date.  The  re- 
sult BO  obtained  establishes  the  amount  I 
find  said  Bushnell  owes  the  complainant  and 
for  which  decree  is  hereby  directed."  The 
two  items  of  credit  deducted  by  the  court 
are  the  value  of  machinery  Installed  by 
Bushnell,  and  the  value  of  other  property 
left  by  him.  In  the  plant  of  the  Vicksburg 
Manufacturing  Company. 

The  contract  between  defendant  Bushnell 
and  Clark  Bros.  Company,  out  of  which  the 
main  dispute  in  this  case  arises,  being  Elx- 
hiblt  B  of  the  bill  of  complaint  reads  as 
follows:  "This  agreement  made  and  enter- 
ed Into  this  4th  day  of  March,  1904,  between 
the  Clark  Brothers  Company,  a  corporation 
organized  and  operating  under  the  laws  of 
the  state  of  Michigan,  of  Vicksburg,  Mich., 
party  of  the  first  part,  and  W.  B.  Bushnell 
of  Kalamazoo,  Mich.,  party  of  the  second 
part,  witnesseth  That  the  said  parties  agree 
to  and  with  each  other  as  follows,  to  wit: 
(1)  That  said  party  of  the  first  part  Is  the 
owner  of  a  certain  manufacturing  plant 
situated  in  the  village  of  Vicksburg  in  said 


Digitized  by  VjOOQ  l€ 


610 


122  NOBTHWBSTBBN  BBPOfiTEB. 


(Mich. 


county  and  state,  together  with  certain  let- 
ters patent  covering  certain  regulators  and 
low-water  alarm%  and,  the  party  of  the 
second  part  being  a  practical  manufacturer, 
the  said  first  party  agrees  to  turn  over  Its 
said  plant  for  a  term  of  one  year  to  said  se- 
cond party  free  of  rent,  said  second  iJarty 
to  take  charge  of  and  manage  said  plant 
and  manufacture  low-water  alarms  and  reg- 
ulators together  with  certain  railway  sup- 
plies, which  second  party  desires  to  mana- 
facture  and  to  manufacture  such  other  prod- 
ucts as  the  parties  to  this  contract  may 
agree  npon  from  time  to  time.  (2)  The  said 
party  of  the  first  part  agrees  to  furnish  sec- 
ond party  the  sum  of  three  thousand  dollars, 
or  such  part  thereof  as  second  party  shall 
require  as  a  working  capital  upon  which  to 
run  said  business,  and  to  Install  additional 
machinery,  and  it  is  agreed  that,  as  fast  as 
any  funds  are  received  from  the  sale  of 
products  from  this  factory,  whatever  amount 
can  be  spared  after  payment  of  the  running 
exi>en8e8  of  said  plant  shall  be  applied  to  the 
payment  of  said  sum  of  three  thousand  dol- 
lars, or  such  part  thereof  as  may  be  used 
by  the  second  party,  together  with  Interest 
on  said  sum  as  may  l>e  so  used  at  the  rate 
of  6  per  cent  per  annum  for  such  time  as 
any  part  of  the  same  shall  remain  unpaid, 
and  It  is  further  agreed  that  after,  the  repay- 
ment to  said  first  party  of  such  sum  of  three 
thousand  dollars,  or  such  part  of  the  same 
as  may  be  used  by  the  second  party,  tOi 
gather  with  the  interest  thereon  as  herein 
provided,  that  any  profits  arising  from  said 
business  during  the  term  of  the  first  year 
under  the  operation  of  this  contract  shall 
become  the  property  of  the  said  W.  B.  Bush- 
nell  as  a  part  compensation  for  Iiis  services. 
(3)  The  said  party  of  the  second  part  agrees 
that  he  will  take  charge  of  said  plant  and 
faithfully  oversee  and  handle  the  same  to 
the  best  possible  advantage  for  the  said  term 
of  one  year,  and  that  he  will  put  in  his  time 
for  said  term  of  one  year  free  of  charge  ex- 
cept for  actual  expenses  incurred  by  him 
in  traveling  or  selling  goods  for  the  benefit 
of  said  company,' except,  however,  such  com- 
pensation as  may  come  to  him  under  the  pro- 
visions of  the  second  subdivision  of  this 
contract  (4)  It  is  further  agreed  between 
the  parties  that  if  at  the  end  of  one  year 
said  second  party  shall  have  succeeded  in 
placing  said  business  upon  a  profitable  basis, 
said  first  party  will  cause  to  l>e  turned  over 
and  Issued  to  said  second  party  ten  thou- 
sand dollars  of  the  capital  stock  of  said  cor- 
poration free  from  ail  liens  and  incumbrances 
of  every  name  and  nature  whatever,  and 
if  after  said  first  year  said  second  party 
shall  have  succeeded  in  placing  said  business 
on  a  profitable  and  paying  basis,  so  that 
this  agreement  may  be  extended  and  carried 
out  by  first  party  transferring  said  stock 
to  second  party,  then  it  is  hereby  agreed  be- 
tween the  parties  that  the  said  Clark  Broth- 


ers Company  shall  pay  to  the  second  party 
for  the  two  years  next  following  a  reason- 
able salary  based  on  the  profits  of  the  com- 
pany as  shown  by  the  books  of  the  company 
and  to  be  agreed  upon  by  the  parties  hereto 
not  however,  to  exceed  the  sum  of  one  hun- 
dred dollars  per  month.  <5)  If  at  the  aid 
of  one  year  said  business  shall  have  l)een 
placed  on  a  paying  basis,  but  the  parties 
do  not  care  to  continue  this  contract  In  so 
far  as  it  relates  to  the  manufacture  of  regu- 
lators and  low-water  alarms,  then.  In  that 
case,  said  W.  B.  Bushnell  agrees  that  be 
will  release  and  assign  to  the  first  party 
thereto  all.  interest  or  claim  that  he  may 
have  in  and  to  ail  letters  patent  which  are 
owned  by  the  parties  hereto  covering  said 
feed  regulators  and  low-water  alarms;  but 
in  case  said  second  party  shall  not  within 
one  year  succeed  in  placing  said  business  on 
a  paying  and  profitable  basis,  then  this  con- 
tract is  to  be  terminated,  and  the  said  W. 
E.  Bushnell  shall  have  no  claim  against  first 
party  growing  out  of  this  contract  either 
for  lal>or,  service,  or  money  expended.  Nei- 
ther shall  there  be  any  liability  on  the  part 
of  said  W.  E2.  Bushnell  on  account  of  not 
having  placed  said  business  on  a  paying 
basis.  (6)  The  said  second  party  also  agrees 
that  after  one-half  of  the  capital  stock  of 
said  Clark  Brothers  Company  has  been  turned 
over  to  him.  the  remaining  stockholders  may 
l^ave  authority  and.  power  to  make  such  ar- 
rangements by  pledge  of  its  stock  or  other- 
wise as  shall  be  necessary  to  secure  to  the 
yicksbnrg  Exchange  Bank  any  balance  that 
may  be  remaining  due  and  unpaid  on  a  cer- 
tain mortgage  given  by  said  Clark  Brothers 
Company  to  the  said  Vlcksbnrg  Exchange 
Bank;  this  provision  being  inserted  in  order 
that  the  provision  of  this  contract  relative 
to  the  turning  over  by  the  first  party  to 
second  party  one-halt  of  the  capital  stock  of 
said  corporation  free  from  all  liens  or  debts 
it  being  intended  that  the  stockholders  of 
said  corporation  outside  of  the  said  W.  B. 
Bushnell  shall  arrange  for  the  payment  of 
said  mortgage  indebtedness  so  as  to  relieve 
the  stock  and  interest  of  said  W.  B.  Bushnell 
from  any  liability  under  said  mortgage  in- 
debtedness. In  witness  whereof  the  parties 
have  hereunto  set  their  hands  and  seals  this 
4th  day  of  March,  1904.  Cltarles  B.  McKain, 
President  Charles  A.  Morse,  Secretary.  W. 
EL  Bushnell." 

The  following  is  the  agreement.  Exhibit  C 
of  the  bill  of  complaint,  made  l>etween  El- 
bert Ik  Page,  president  of  the  Vlcksburg  Ex- 
change Bank,  and  the  stockholders  of  the 
Vlcksburg  Manufacturing  Company:  "This 
agreement  made  and  entered  into  by  and 
between  Elbert  L.  Page,  as  presldmt  of  the 
Vlcksburg  Exchange  Bank,  party  of  the  first 
part  and  Joseph  W.  Mcllvain,  Elbert  L. 
Page,  Eugene  C.  Rishel,  Charles  B.  Cooley, 
Charles  F.  Mohney,  Charles  A.  Morse* 
Charles  H.  McKaln,  I.  A.  Mills,  Charles  Rosa, 


Digitized  by  VjOOQ  l€ 


Mich.) 


UONBOB  T.  BUSHNELL. 


611 


Leland  H.  Sabin  and  WDIiam  A.  Wood,  of 
the  second  part,  wltnesseth  that  the  parties 
agree  to  and  with  each  other  as  follows,  to 
wit :  Whereas,  the  said  parties  of  the  second 
part  are  stockholders  In  a  certain  corpora- 
tion known  as  the  Clark  Brothers  Company, 
and  said  Clark  Brothers  Company  as  such 
corporation  are  indebted  to  the  said  Vlcks- 
borg  Elxchange  Bank  In  the  sum  of  five  thou- 
sand and  flye  hundred  dollars,  part  of  which 
is  secnred  by  mortgage  coTerlng  the  prop- 
erty of  said  Clark  Brothers  Company  and 
part  of  which  Is  unsecured;  and,  whereas, 
the  said  Clark  Brothers  have  this  day  en- 
tered Into  a  contract  with  one  W.  E.  Buah- 
nell  of  Kalamazoo,  Mich.,  wherein  and 
whereby  the  said  Clark  Brothers  Company 
has  agreed  that  at  the  end  of  one  year  from 
this  date  and  tmder  certain  conditions  that 
they,  the  said  Clark  Brothers  Company, 
would  cause  to  be  assigned  and  turned  over 
to  the  said  W.  BI.  Bnshnell  ten  thousand  dol- 
lars of  the  capital  stock  of  the  said  Clark 
Brothers  Company  free  and  clear  from  all 
liens,  debts  and  charges  of  every  name  and 
nature  whatever:  Now,  therefore^  for  the 
purpose  of  placing  said  corporation  in  a 
position  where  It  can  carry  out  the  provisions 
of  said  contract  whenever  it  becomes  neces- 
sary, we,  tbo  BSid  parties  of  the  second 
part,  agree  with  the  said  first  party,  as  fol- 
lows: First  That  we  will  within  ten  days 
from  the  date  of  this  contract  pay  to  the 
said  first  party  an  assessment  upon  our 
stock  amounting  to  the  sum  of  fifteen  hun- 
dred dollars,  the  same  to  be  paid  in  proper^ 
tion  to  the  amount  of  stock  held  by  each, 
and,  should  any  of  the  second  parties  here- 
to fall  or  refuse  to  pay  their  proportionate 
share  of  said  sum,  then  the  same  shall  be 
made  np  by  the  balance  of  said  stockhold- 
ers herein  named  as  second  parties  so  that 
said  full  sum  of  fifteen  hundred  dollars  shall 
be  raised  and  paid  into  said  first  party  with- 
in the  time  herein  limited.  Second.  That 
the  said  parties  of  the  second  part  will  with- 
in one  year  from  the  date  hereof  pay  to  the 
said  first  party  a  further  sum  of  one  thou- 
sand dollars  on  the  Indebtedness  which  said 
Clark  Brothers  Company  may  be  owing  to 
said  first  party,  the  same  to  be  paid  in  the 
same  way  and  under  the  same  conditions  as 
the  fifteen  hundred  dollars  hereinbefore  men- 
tioned, provided  said  contract  with  W.  E. 
Bustmell  shall  be  carried  out  and  continued 
after  the  first  year.  Third.  That  the  said 
second  parties  will,  after  the  payment  of  the 
said  sum  of  twenty-five  hundred  dollars  as 
herein  provided,  and  should  the  contract  this 
day  entered  into  between  the  said  Clark 
Brothers  Company  and  the  said  W.  E.  Bush- 
nell  be  continued  beyond  one  year  as  provid- 
ed for  In  said  contract,  secure  to  the  said 
first  party  herein  mentioned  by  a  pledge  of 
their  various  amounts  of  stock  the  balance 
of  any  and  all  Indebtedness  which  the  said 
Clark  Brothers  Company  may  at  that  time 
be  owing  to  said  first  party  In  order  that 


said  contract  this  day  entered  Into  may  be 
carried  out,  by  a  transfer  to  said  W.  E. 
Bushnell  of  the  amount  of  stock  which  said 
contract  provides  shall  be  transferred  to  him 
free  of  all  liens  or  debts  existing  against 
said  corporation,  it  being  intended  to  secure 
to  said  Vlcksburg  Exchange  Bank  the  pay- 
ment of  all  Indebtedness  by  a  pledge  of  the 
stock  of  the  second  parties  hereto  in  order 
that  the  mortgage  and  all  other  Indebtedness 
may  be  released  so  far  as  the  corporation 
known  as  the  Clark  Brothers  Company  is 
concerned.  In  witness  whereof  the  parties 
hereto  have  hereunto  set  their  hands  and 
seals  this  4th  day  of  March,  1904.  J.  W. 
Mcllvaln.  Elbert  L.  Page.  Eugene  C.  Rish- 
el.  Charles  F.  Mohney.  Charles  A.  Morse. 
Charles  H.  McKain.  Elbert  L.  Page,  Pt 
Vlcksburg  Exchange  Bank." 

The  Bushnell  contract  was  assigned  to 
complainant  March  28,  1907.  Both  of  these 
contracts  were  assigned  by  Page  to  complain- 
ant April  16, 1907.  The  Clark  Brothers  Com- 
pany, owner  of  the  plant  mentioned  in  the 
above  contract  between  it  and  the  defendant 
Bushnell,  had  been  running  at  a  loss,  to  the 
amount  at  least  of  $5,500,  and  Its  manufac- 
tory had  been  closed  down  for  several 
months  at  the  time  this  contract  was  made. 
The  negotiations  entered  Into  between  the 
parties  were  for  the  purpose  of  finding  a  way 
whereby  this  might  be  made  a  successful 
going  concern.  Defendant  Bushnell  was  to 
make  every  effort  to  do  this  under  this  con- 
tract, ahd  if  it  was  not  made  a  success  with- 
in one  year  the  contract  provides  in  terms 
that  it  Is  "to  be  terminated,  and  the  said 
W.  EL  Bushnell  shall  have  no  claim  against 
the  first  party  growing  out  of  this  contract 
either  for  labor,  services  or  money  expend- 
ed. Neither  shall  there  be  any  liability  on 
the  part  of  the  said  W.  E.  Bushnell  on  ac- 
count of  not  having  placed  said  business  on 
a  paying  basis."*  Defendant  Bushnell  enter- 
ed upon  this  enterprise  under  this  contract 
and  did  take  charge  of  and  manage  the 
plant  in  the  name  of  the  company,  using 
for  the  purposes  of  the  business  the  money 
furnished  by  it,  under  the  terms  of  the  con- 
tract, and  so  continued  for  about  three  years. 
There  Is  evidence  tending  to  show  there 
was  at  the  end  of  the  first  year  some  profit 
realized;  but  it  appeared,  when  the  business 
was  closed,  that  there  had  been  a  loss  of  at 
least  the  amount  of  |3,000,  for  which  re- 
covery is  sought  in  this  suit,  besides  the 
bank  overdraft  of  about  $1,600,  the  amount 
Involved  in  the  suit  at  law  brought  by  com- 
plainant against  Bushnell.  There  is  a  claim 
made  on  the  part  of  complainant  that  de- 
fendant Bushnell  was  guilty  of  fraud  and 
fraudulent  representations  towards  the  stock- 
holders and  officers  of  the  Vicksbnrg  Manu- 
facturing Company. 

The  entire  evidence  bearing  upon  the  ques- 
tion of  fraud  and  fraudulent  representations 
made  by  Bushnell  has  been  examined  with 
care,  and  we  are  satisfied  that  the  cliarge  is 


Digitized  by  VjOOQ  l€ 


612 


122  NORTHWESTERN  RSPORTER. 


aucn. 


not  8ustaliie<L  All  of  the  money  complain- 
ant claims  he  Is  entitled  to  recover  from 
Bushnell,  being  the  cash  furnished  him  by 
the  company  under  the  contract  of  March  4, 
1904,  was  furnished  six  months  before  any 
statement  made  by  Bushnell  which  la  claim- 
ed was  false  and  fraudulent.  Appreciating 
this  fact,  complainant  in  his  reply  brief  has 
abandoned  the  accounting  feature  of  the 
case.  We  quote:  "Complainant  Is  scarcely 
seeking  an  accounting.  He  is  simply  seeking 
to  hare  Bushnell  pay  back  the  $4,100  ad- 
vanced him.  This  the  contract  provided  he 
should  pay  ba<*.  The  contract  also  provided 
Bushnell  might  Install  additional  machinery. 
This  be  did.  and  proofs  were  taken  to  get  at 
that  and  give  him  credit  for  it,  which  Bush- 
nell Is  entitled  to  nnder  the  contract."  An 
interlocutory  decree  for  an  accounting  was 
made  by  the  court  below,  and  testimony  was 
taken;  but  In  the  final  decree  a  general  ac- 
counting was  not  considered  as  already  ap- 
Itears  from  the  opinion  quoted. 

Complainant,  as  trustee  in  bankruptcy, 
must  rest  bis  clatm  for  recovery  upon  the 
proposition  that  the  relation  of  debtor  and 
creditor  existed  between  the  defendant  Bush- 
nell and  the  banking  firm,  or  circumstances 
which  equity  would  recognize  and  declare 
equivalent  to  such  relation.  It  will  not  re- 
quire citation  of  authorities  to  show  that 
otherwise  no  relief  can  be  granted  him.  The 
assignments  to  complainant  by  Page  and 
Vlcksburg  Manufacturing  Company,  unless 
the  relation  above  described  existed,  can  be 
of  no  possible  avail  even  If  free  from  the 
infirmities  claimed  to  render  them  void. 
When  this  money  was  obtained,  Page  was 
president  of  the  banking  firm,  and  also  a 
large  stockholder  in  the  manufacturing  com- 
pany. He  had  full  knowledge  of  the  Bush- 
nell contract  of  March  4,  1904,  In  which  the 
company  agreed  to  furnlstv  $3,000  to  carry 
out  that  contract  In  order  to  make  It  pos- 
sible for  the  company  to  furnish  this  money 
to  carry  out  other  agreements  of  the  contract, 
he,  as  president  of  the  banking  firm,  entered 
into  the  agreement  with  the  stockholders  of 
the  company  to  reduce  their  then  Indebted- 
ness to  his  banking  firm,  about  $2,500.  Bush- 
nell was  not  a  party  to  this  agreement,  or  In 
any  way  privy  thereto.  This  reduction  was 
In  efFect  accomplished,  and  Page  began  to 
borrow  money  from  his  firm  on  his  own 
notes,  and  hand  It  to  Bushnell,  who,  in  writ- 
ing, receipted  to  him  for  each  amount  re- 


ceived, "account  of  Vidcsborg  Mannfactarlng 
Company."  These  recdpta  are  Exhibits  103 
to  115  inclusive,  and  cover  the  $4,100  It  Is 
claimed  Bushnell  received  from  the  banking 
firm.  These  moneys  were  deposited  by  Busb- 
nell  In  the  Vlcksburg  Exchange  Bank  to  the 
credit  of  the  Vlcksburg  Manufacturing  Com- 
pany and  checked  against  by  checks  drawn 
by  Bushnell  on  such  account  all  signed 
"Vlcksburg  Manufacturing  Company.  W.  E}. 
Bushnell,  Mgr."  We  find  In  this  record  a 
list  of  such  checks  amounting  to  $3,662;  bat 
by  reason  of  the  voluminous  record,  and  the 
absence  of  an  Index  of  exhibits,  as  required 
by  rule,  no  more  time  has  been  spent  in 
tracing  this  bank'  account  than  to  determine 
the  above  facts.  From  these  undisputed 
facts  the  conclusion  which  we  draw  Is  that 
Page  and  his  banking  firm  were  dealing  wltb 
the  Vlcksburg  Manufacturing  Company,  that 
Page  at  no  time  was  furnishing  Busbn^  mon- 
ey, but  was  himself  the  debtor  of  the  bank, 
procuring  money  for  the  company,  with  full 
knowledge  of  all  the  facts,  and  as  to  how  the 
money  was  banked  and  drawn  against,  and 
that  Bushnell  was  not  a  debtor  of  the  banlc 
Complainant,  when  the  notes  which  Page 
gave  to  the  bank  for  this  money  were  includ- 
ed in  the  Judgmott,  so  understood  these 
transactions. 

It  is,  howbver.  Insisted  that,  as  Page  ob' 
talned  this  money  when  he  was  Insolvent, 
complainant,  having  acquired  the  rights  of 
the  company,  should  be  subrogated  to  all 
such  rights,  and  recover  from  Bushndl  mon- 
ey Improperly  paid  out  of  the  bank,  and 
which  the  company  coold  recover  from  him. 
Not  passing  upon  the  questions  which  might 
bear  upon  application  of  such  a  proposi- 
tion to  the  case,  it  Is  sufficient  .to  say  that 
nnder  this  contract  Bushn^  in  all  his  rela- 
tions was  carrying  on  the  business  of  tS« 
Vlcksburg  Manufacturing  Company  In  Its 
name,  and  for  Its  b^efit,  npcm  money  fur- 
nished by  it  under  the  contract,  by  which 
provision  was  specifically  made  that  In  case 
of  failure  of  the  enterprise  he  assumed  no 
liability.  The  Vlcksburg  Manufacturing  Com- 
pany had  no  claims  or  demands  upon  Bush- 
nell for  the  money  used  by  him.  It  will  not 
be  necessary  to  discuss  the  record  further. 

Complainant  is  not  entitled  to  the  relief 
granted. 

The  decree  of  the  circuit  court  is  reversed, 
and  a  decree  will  be  entered  in  this  court 
dismissing  his  bill  of  complaint,  with  costs 
to  defendant  Bushnell  of  both  oonrts. 


Digitized  by  LjOOQIC 


MlchO 


SMITH  V.  TOLAN. 


613 


SMITH  T.  TOLAN. 
(Supreme  Court  of  Mldiigitn.     Sept  21,  1909.) 
MAi:.iciot7B  Pbosbcution   (I  22*)— Fausb  Ih- 

PB180NMENT   ({   14*)— PrOBABLZ  CAnM— AD- 
VISE OF  PbOSBCUTINO  OrFICXB. 

In  actions  for  malicious  prosecution,  and 
false  imprisonment,  proof  that  defendant  as 
prosecuting  witness  In  good  faith  fully  and  fair- 
ly stated  all  of  the  material  facts  within  his 
knowledze  to  the  prosecuting  officer  and  acted 
on  his  aavice  establishes  a  case  of  probable  cause. 
[Ed.  Note.— For  other  cases,  see  Malicious 
Prosecution,  Cent.  Dig.  {  46 ;  Dec.  Dig.  J  22  ;* 
False  Imprisonment,  Cent  Dig.  i  78;  Dec.  Dig. 
i  I*.*] 

Error  to  Circuit  Court,  Delta  County ;  John 
W.  Stone,  Judge. 

Action  by  Edward  Smith  against  John 
Tolan.  Judgment  for  plaintiff,  and  defend- 
ant brings  error.  Reversed,  and  new  trial  or- 
dered. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
HOOKER,  MOORE,  and  McALVAY,  JJ. 

John  Power,  for  appellant  Gallup  &  Gal- 
lup, for  appellee. 

McALVAT,  J.  Plaintiff  recovered  a  Judg- 
ment against  defendant  In  an  action  for  mali- 
cious prosecution.  A  motion  for  a  new  trial 
duly  made  by  defendant  was  denied.  A  bill  of 
exceptions  was  settled,  and  the  case  Is  here 
for  review  upon  a  writ  of  error.  These  parties 
were  members  of  the  council  of  the  city  of 
Escanaba  In  Delta  county  in  the  years  1904- 
06,  during  which  time  bids  were  invited  by 
the  council,  and  contracts  were  let  for  street 
Improvements.  The  firm  of  Fleming  &  Sulli- 
van, being  lowest  bidders,  were  awarded  a 
contract  in  August,  1904.  Smith  and  Tolan 
took  opposite  sides  upon  the  awarding  of  this 
contract.  Smith  favoring  it,  and  Tolan  object- 
ing on  account  of  doubt  as  to  reliability  of 
the  bidders  Fleming  &  Sullivan.  Mr.  Sulli- 
van of  this  firm  died  early  in  1005,  and  John 
O.  Zane,  who  was  city  engineer  in  1904  and 
nutil  April,  1905,  secured  his  Interest  In  this 
contract,  and  thereafter  worked  with  Flem- 
ing in  performing  it  On  August  11,  1904, 
Joseph  A.  Gross,  owner  of  a  stone  quarry,  en- 
tered into  a  contract  in  writing  with  Joseph 
Fleming  of  the  firm  of  Fleming  &  SulliTau  to 
furnish  sufBclent  crushed  stone  for  the  above 
contract  at  70  cents  per  cubic  yard  f.  o.  b.  at 
Escanaba,  In  which  the  paving  contract  was 
referred  to,  and  the  sureties  thereon  were  not 
to  be  held  for  such  stone  furnished.  On  March 
3, 1905,  plaintift  Smith,  then  a  member. of  the 
council,  entered  secretly  into  a  contract  In 
writing  with  said  Gross  for  the  entire  out- 
put of  crushed  stone  during  1905  and  1906, 
or  so  much  as  Smith  might  desire  and  or- 
der at  85  cents  per  cubic  yard  f.  o.  b.  cars  at 
Escanaba,  and  for  the  balance  of  contract  let 
by  the  city  in  1904  80  cents  per  cubic  yard. 
Smith  made  a  contract  similar  in  all  respects 
with  John  Bichler,  another  quarry  owner  in 
the  same  vicinity.    These  contracts  for  stone 


made  with  Smith  were  assigned  by  him  to 
Zane  May  3,  1905.  No  other  stone  suitable 
for  street  work  was  obtainable  near  Es- 
canaba. The  fact  that  these  contracts  had 
been  so  made  and  asslfcned  was  kept  a  secret 
by  .Smith  and  Zane  from  the  city  council  and 
officers  and  from  the  public  until  about  April, 
1906.  In  the  summer  of  1905,  a  dispute  hav- 
ing arisen  between  Gross  and  Fleming  and 
Zane  as  to  whether  Gross  should  continue  to 
furnish  stone  at  the  price  fixed  by  the  Sulli- 
van contract.  Smith  voluntarily  agreed  to  pay 
an  advanced  price  therefor  of  10  cents  per 
cubic  yard  over  the  Sullivan  contract  Such 
amount  of  this  stone  as  the  subcontractors 
required  was  sold  to  them  by  Fleming  and 
Zane  at  $1.05  per  cubic  yard.  Early  in  1906 
the  fact  of  the  Gross  contract  with  Smith 
became  known  through  the  press,  and  there 
were  rumors  of  dishonesty  In  connection 
therewith  and  with  the  street  improvement 
Investigation  was  started,  and  defendant 
Tolan  be<'Bme  active  in  that  direction.  He 
consulted  the  prosecuting  attorney  on  several 
occasions  relative  to  the  charges  against 
Smith,  and  was  informed  by  him  that  to 
make  a  case,  it  would  be  necessary  to  offer 
proof  that  Smith  had  received  money  or  oth- 
er valuable  consideration  In  connection  with 
the  stone  contracts.  Later,  acting  upon  such 
advice,  he  brought  a  witness  to  the  prosecut- 
or, who  Bta'ted  that  Smith  told  him  that  he 
(Smith)  had  made  money  out  of  the  contract 
for  stone  which  went  into  the  street  paving. 
This  witness  also  so  testified  upon  the  trial. 
Tolan  testified  that  he  then  said  to  the  prose- 
cutor: "Well,  If  you  think  there  Is  a  cause 
for  action,  I  will  make  the  complaint."  The 
prosecutor  replied,  "All  right,  you  go  ahead," 
and  told  him  to  be  at  a  certain  Justice's  office 
at  2  o'clock,  and  he  would  meet  him  there. 
The  prosecutor  required  the  time  because  the 
complaint  was  a  difficult  one  to  draw,  and 
read  it  to  him  at  the  time  and  place  desig- 
nated and  presented  it  to  him  to  sign,  and  he 
signed  it  He  also  testified  that  be  told  the 
prosecutor  all  the  facts  within  his  knowledge 
concerning  this  matter  before  making  the 
complaint.  On  this  complaint  a  warrant  is- 
sued. Smith  was  arrested,  an  examination 
was  bad.  and  he  was  bound  over  for  trial,  the 
prosecutor  also  so  advising.  A  trial  was  had 
in  the  circuit  court  and  a  verdict  of  not 
guilty  was  rendered.  The  complaining  wit- 
ness, Tolan,  was  not  present  or  called  as  a 
witness  at  said  examination,  but  he  was  pres- 
ent at  the  trial,  and  was  a  witness  for  the 
people.  Out  of  this  criminal  proceeding 
against  the  plaintiff  Smith  the  case  at  bar 
arose. 

Defendant  insists  that  the  record  shows 
that  there  was  probable  cause  for  making 
this  complaint;  that  it  was  made  after  de- 
fendant had  stated,  In  good  faith,  fully  and 
fairly  all  of  the  facts  within  his  knowledge 
to  the  prosecuting  officer,  and  relied  and  act- 


•Vor  otlMr  cases  sea  same  toplo  and  section  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 
122  N.W.-33 


Digitized  by 


Google 


614 


122  NORTHWESTERN  REPORXEB. 


(Micb. 


4!d  upon  his  advice,  and  asslgrns  error  upon  the 
refnBal  of  the  court  to  Instruct  the  Jury  "that 
It  appeared  from  the  evidence  that  defendant 
had  probable  cause  for  making  the  criminal 
complaint,  and  your  verdict  should  be  for 
defendant."  The  record  shows  that  the  prose- 
cutor was  familiar  with  this  case.  He  had 
published  a  statement  concerning  it  in  the 
public  press.  He  advised  publicly  that,  to 
make  a  case,  it  must  appear  that  Smith  re- 
ceived benefit  from  the  stone  contracts.  He 
so  Informed  Tolan,  and  did  not  advise  mak- 
ing the  complaint  until  after  Tolan  brought 
to  his  knowledge  such  proof.  He  testified  on 
direct  examination  as  a  witness  for  plaintiff: 
"Q.  You  were  familiar  with  all  the  facts  as 
they  were  claimed  at  that  time,  and  as  they 
subsequently  developed?  A,  Oh,  yes ;  I  knew 
all  about  the  case  and  facts,  and  talked  the 
matter  over  with  Tolan."  It  is  claimed  that 
the  record  does  not  disclose  what  facts  Tolan 
stated  to  the  prosecutor.  The  substance  of 
his  testimony  is  already  given.  It  appears 
in  the  record  In  narrative  form.  No  objec- 
tion was  made  to  it,  nor  cross-examination 
had  upon  it  It  is  uncontradicted  that  Tolan, 
after  several  interviews  with  the  prosecutor, 
made  Inquiry  in  regard  to  the  only  question 
of  fact  of  which  the  prosecutor  had  no  in- 
formation, and  fully  stated  to  the  prosecutor 
what  the  result  was,  and  produced  the  wit- 
ness who  gave  him  the  Information.  This  is 
confirmed  by  the  prosecutor. 

The  action  of  the  prosecuting  attorney  at 
the  time  in  entertaining  and  drawing  the 
complaint  and  in  advising  the  justice  to  hold 
Smith  for  trial  cannot  be  consistently  con- 
strued other  than  that  from  Tolan's  state- 
ment and  the  evidence  of  a  witness  furnished 
by  him  he  advised  Tolan  to  make  the  com- 
plaint. Tolan  was  a  member  of  the  common 
council.  It  was  his  duty  as  a  public  officer  to 
Investigate  these  charges  which  had  been 
made,  and  proper  for  him  to  place  what  in- 
formation he  obtained  before  the  prosecuting 
officer  of  the  county.  We  do  not  find  any  evi- 
dence in  this  record  that  he  did  not  act  In 
good  faith.  It  is  the  settled  law  in  this  state 
in  actions  for  malicious  prosecution  and  false 
Imprisonment  that,  where  a  prosecuting  wit- 
ness has  in  good  faith  fully  and  fairly  stated 
all  of  the  material  facts  within  his  knowledge 
to  the  prosecuting  officer  and  acted  upon  his 
advice,  proof  of  the  fact  establishes  a  case 
of  probable  cause.  Rogers  v.  Olds,  117  Mich. 
370,  75  N.  W.  933 ;  Doty  v.  Hurd,  124  Mich. 
671,  83  N.  W.  632,  and  cases  cited.  Also 
Cooley  on  Torts,  187.  The  court  was  in  error 
in  re'fuslug  to  charge  as  requested. 

Errors  assigned  upon  the  introduction  of 
evidence  and  certain  portions  of  the  charge 
of  the  court  In  view  of  our  conclusion  need 
not  be  discussed. 

The  Judgment  Is  reversed,  and  a  new  trial 
ordered. 


MASSEY  V.  litTCB  et  al. 
(Supreme  Coart  of  Michigan.     Sept.  21.  1909.) 

1.  CoNSPiBACT  (8  21*)— Actions— SuFFioiEN- 
CT  of  Evidence— Jubt  Question. 

In  an  action  to  recover  money  which  it  was 
claimed  defendants  procured  plaiutiff  to  invest 
in  a  business,  evidence  held  to  make  it  a  jury 
question  whether  defendants  fraudulently  eon- 
spired  to  procure  the  money. 

[Ed.  Note.— For  other  cases,  see  Conspiracy, 
Dec.  Dig.  {  21.»] 

2.  Frauds,  Statute  or  (§  39»)  —  Officebs — 
Fbadd. 

Comp.  Laws  1897,  S  9518,  prohibiting  the 
bringing  of  any  action  charging  any  person  upon 
any  favorable  representation  made  concerning 
the  character,  conduct,  credit,  ability,  trade,  or 
dealings  of  another,  unless  made  in  writing  and 
signed  by  the  person  to  be  charged,  does  not 
apply  to  representations  made  to  enable  the  par- 
ty making  them  to  profit  thereby,  so  that  if 
defendants  falsely  and  fraudulently  represented 
to  plaintiff  that  their  business  was  prosperous, 
not  indebted,  and  that  each  defendant  had  in- 
vested a  certain  sum  in  order  to  induce  plaintiff 
to  invest  in  stock,  he  could  recover  resulting 
damages,  where  defendants  profited  by  the  fraud, 
in  that  part  of  the  money  paid  for  the  stock 
was  used  by  them  to  pay  an  indebtedness,  for 
which  they  were  jointly  and  individually  liable, 
though  the  representations  were  not  in  writing. 
[E!d.  Note.— For  other  cases,  see  Frauds,  Stat- 
ute of.  Cent.  Dig.  §  CI ;   Dec.  Dig.  8  39. 'J 

3.  CoBPORATiONS  (§  3Cl»)—0rFicEES— Fraud. 

In  an  action  to  recover  money  claimed  to 
have  been  paid  into  defendants'  corporate  busi- 
ness because  of  fraudulent  representations  by 
defendants  as  to  the  condition  of  the  business, 
etc.,  plaintifTs  evidence  held  not  inconsistent 
with  the  theory  that  the  fraudulent  represen- 
tations were  made  concerning  the  corporation, 
though  plaintiff  did  not  at  the  time  know  the 
business  was  a  corporation. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Dec.  Dig.  §  861.*] 

4.  Trial  (J  143»)— Direction  of  Verdict. 

Where  the  evidence  made  a  disputed  ques- 
tion of  fact  a  question  for  the  jury,  the  direc- 
tion of  a  verdict  was  properly  refused. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  81  342,  343 ;    Dec.  Dig.  8  143.*] 

5.  Corporations  (8  354*)— Officers— Fraud. 

That  plaintiff  sent  a  check  to  his  attorney 
and  had  it  certified  and  held  until  the  trial, 
which  check  was  sent  to  him  as  bis  interest  in 
a  corporation  on  its  dissolution,  would  not  pre- 
vent him  from  suing  to  recover  damages  caused 
by  fraudulent  representations  which  induced  him 
to  invest  money  in  the  corporate  business. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Dec.  Dig.  8  354.*] 

Error  to  Circuit  Court,  Kent  County;  Clar- 
ence W.  Sessions,  Judge. 

Action  by  Wynter  C.  Massey  against  Mor- 
ton H.  Luce  and  another.  Judgment  for 
defendants.  Plaintiff  brings  error.  Revers- 
ed, and  new  trial  ordered. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  McALVAY,  and  BROOKE, 
JJ. 

Smedley  &  Corwin,  for  appellant  Klein- 
hans  &  Knappen,  for  appellees. 

McALVAY,  X  Plaintiff  brought  an  action 
on  the   case   against  defendants  to   recover 


•For  other  ca<e>  see  tame  toplo  and  section  NUMBER  In  Dec.  &  Am.  Digs.  U07  to  data,  A  Reporter  IndazM 


Digitized  by  LjOOQIC 


MlcbO 


UASSET  V.  LUCK. 


515 


from  them  the  sum  of  $5,000  which  tbey  had 
procured  from  him  by  certain  claimed  false 
and  fraudulent  representations  made  to  him 
for  the  purpose  of  cheating  and  defrauding 
him.  Defendants  in  1906  were  Jointly  en- 
gaged at  Grand  Rapids  In  handling  and  sell- 
ing automobiles.  Each  Invested  equally  from 
October  9,  1906,  to  December  10,  1900,  $1,550, 
and  entered  into  contracts  with  automobile 
manufacturers  October  9  and  November  13, 
1906.  On  December  10th  defendant  Banks 
paid  in  $650,  defendant  Luce  $850,  and  Mrs. 
Luce  $100.  This  business  was  transacted  un- 
der the  name  of  the  Luce  &  Banlis  Company. 
In  this  business  they  needed  money  and  ob- 
tained a  line  of  credit  with  the  Grand  Rapids 
Savings  Bank  of  $5,000.  The  arrangement 
was  made  between  Luce  &  Banks  and  the 
bank  in  November,  1906.  They  were  to  give 
their  personal  indorsement  on  their  paper  or 
bonds,  and  a  bond  was  given  signed  by  tliem 
Individually.  The  first  entry  in  the  bank 
pass  book  was  November  7,  1906.  *  After- 
wards a  corporation  called  the  Luce  &  Banks 
Company  was  organized  and  held  its  first 
meeting  December  20,  190G,  with  a  capital 
stock  of  $5,000,  all  of  which  was  owned  by 
defendants  except  one  share,  which  was 
owned  by  the  wife  of  defendant  Luce.  It  is 
inferred  that  no  change  was  made  in  the 
books  when  the  corporation  was  organized 
and  the  payments  theretofore  made  as  above 
stated  considered  as  payments  of  stock  sub- 
scriptions. There  is  no  evidence  of  any 
other  payments. 

Plaintiff,  a  young  man  28  years  old,  be- 
came acquainted  with  the  defendants  in  Feb- 
ruary or  March,  1907.  He  was  approached 
by  defendant  Luce,  and  asked  bow  he  would 
like  to  go  into  the  automobile  business.  He 
replied  that  he  would  like  It  because  he  was 
mechanically  inclined.  Later,  after  this  busi- 
ness bad  been  removed  to  new  quarters,  de- 
fendant Luce  had  another  talk  with  him,  in 
which  plaintiff  claims  that  he  was  told  that 
the  defendants  each  had  put  $5,000  in  the 
business;  that  they  were  doing  a  good  busi- 
ness; that  the  outlook  was  good  for  busi- 
ness, and  that  tbey  did  not  owe  any  money ; 
that  they  needed  some  money;  and  that,  if 
he  put  in  $5,000,  they  would  give  him  a  one- 
third  Interest  in  the  business  and  a  perma- 
nent salary  of  $20  per  week.  Plaintiff  said 
he  was  satisfied;  that  he  did  not  have  the 
cash,  but  could  get  notes  of  W.  Millard  Pal- 
mer, with  whose  company  he  had  money  in- 
vested. He  got  two  notes  of  Mr.  Palmer  of 
$2,500  each,  and  in  company  with  defendant 
Luce  on  April  5,  1907,  went  to  the  Grand 
Rapids  Savings  Bank,  and  procured  from 
the  cashier  $5,000  by  giving  his  individual 
note  for  that  amount,  secured  by  the  two 
Palmer  notes.  That  this  $5,000  was  paid  at 
this  time  and  in  this  manner  is  not  dis- 
puted. For  this  money  plaintiff  received  no 
receipt  and  no  certificates  of  stock  were 
ever   issued   to  him.    The   Luce   &    Banks 


Company,  of  which  plaintiff  claims  he  had 
no  knowledge  until  October,  1907,  was  in  fact 
on  this  date  indebted  to  this  bank  exceeding 
the  line  of  credit  extended  on  certain  notes, 
none  of  which  were  then  due,  and  for  the 
payment  of  which  defendants  were  individu- 
ally liable  in  the  sum  of  $5,400,  upon  which 
$4,000  of  the  money  paid  by  plaintiff  was  as 
he  claims  without  his  kiiowledge  at  once 
applied,  and  to  that  amount  were  paid  and 
satisfied.  Of  these  notes  $3,850  were  either 
the  originals  or  renewals  of  notes  given  by 
defendants  while  doing  business  together  be- 
fore the  organization  of  the  corporation.  On 
AprU  10,  1907,  five  days  after  plaintiff  had 
paid  in  his  $5,000,  there  was  held  at  its  office 
at  7:30  p.  m.  a  special  meeting  of  the  stock- 
holders of  Luce  &  Banks  Company  without 
notice  to  plaintiff  for  the  purpose  of  increas- 
ing the  capital  stock  and  amending  the  arti- 
cles of  association.  The  defendants  and  Mrs. 
Luce  were  present  On  motion  of  Banks, 
a  resolution  was  unanimously  adopted  in- 
creasing the  capital  stock  from  $5,000  to 
$7,500,  to  be  divided  into  75  shares  of  $100 
each.  Banks  also  offered  the  following  reso- 
lution, which  was  unanimously  adopted: 
"Resolved,  that  the  increased  capital  stock  of 
said  company,  namely,  of  the  face  value  of 
$2,500,  be  sold  to  Wynter  C.  Massey  for  the 
sum  of  $5,000."  Luce  offered  a  resolution 
amending  the  articles  of  association  to  con- 
form with  the  Increased  capital  stock.  No 
other  business  was  transacted.  The  minutes 
are  certified  by  Luce  as  president  and  Banks 
as  secretary.  After  paying  his  money,  plain- 
tiff went  to  work  in  the  business,  selling 
automobiles,  etc.,  at  a  salary  of  $20  per  week, 
and  continued  until  the  latter  part  of  the 
following  October,  when  defendant  Luce  told 
him  that  be  and  Banks  had  put  In  but 
$2,500  each.  Luce  told  him  that  there  was 
a  loss,  and  he,  plaintiff,  must  stand  his  share. 
Plaintiff  said  he  was  willing  to  do  so.  He 
testifies  that  the  amount  of  the  loss  was  not 
mentioned;  that  afterwards  Luce  told  him 
he  must  stand  two-thirds  of  the  loss.  Plain- 
tiff refused,  and  sent  for  his  father,  who 
came  from  Cadillac  in  his  interest.  He  left 
at  once,  and  had  nothing  further  to  do  with 
the  business.  While  be  was  there  he  knew 
of  no  stockholders'  meetings.  It  appeared 
from  the  books  that  defendants  had,  in  fact, 
charged  him  two  for  one  on  stock  claimed 
to  have  been  sold  to  plaintiff,  crediting  profit 
and  loss  with  $2,500.  He  began  this  suit 
directly  after  discovering  the  fact  that  he 
had  been  defrauded. 

On  November  1, 1907,  a  stockholders'  meet- 
ing was  held.  Plaintiff  received  notice,  but, 
having  left,  he  paid  no  attention  to  it.  At 
this  meeting  the  minutes  show  that  the  ob- 
ject was  to  authorize  the  directors  to  sell  all 
the  property  owned  by  Luce  &  Banks  Com- 
pany except  book  accounts,  and  to  transfer 
the  lease  to  W.  S.  Farrant  This  meeting 
voted  the  authority  asked,  and  immediately 


Digitized  by 


Google 


516 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


following  adjournment  the  directors  met  and 
made  the  sale,  but  the  record  of  the  meeting 
does  not  show  the  consideration  paid.  On 
January  17,  1908,  a  special  stockholders' 
meeting  was  held  according  to  claimed  no- 
tice given  to  all  stockholders.  Whether  the 
object  of  the  meeting  was  stiated  In  the 
notice  does  not  appear.  Plaintiff  was  not 
present  They  proceeded  to  dissolve  the  cor- 
poration, and  80  voted.  It  was  stated  that 
$2,550  had  been  realized  from  the  sale  of 
property  and  collections  on  accounts,  and  a 
dissolution  dividend  on  the  capital  stock  of 
34  per  cent  was  declared.  The  directors 
were  authorized  to  convert  all  further  assets 
into  cash,  and  divide  the  same  pro  rata 
among  the  stockholdera  Two  months  after 
issue  joined  in  this  case,  and  after  the  dis- 
solution dividend  above  described  was  de- 
clared, the  amount  of  such  dividend  on  25 
shares  of  stock,  being  what  defendants  claim 
was  his  interest  was  sent  by  mall  to  the 
plaintiff  in  the  form  of  a  check,  with  a  let- 
ter informing  him  of  the  above  facts.  He 
received  the  check  and  sent  It  to  bis  attor- 
nejrs,  who  had  it  certified  and  held  it  until 
the  time  of  the  trial.  Further  reference  to 
this  check  will  be  made  later  In  this  opinion. 
Defendants  denied  that  any  representations 
as  claimed  had  been  made,  and  testified  that 
plaintiff  was  informed  that  the  amount  each 
had  invested  was  $2,500,  and  explained  the 
proposed  increase  of  the  capital  stock,  and 
that,  when  they  discussed  going  out  of  busi- 
ness in  October,  they  offered  to  sell  out  to 
him  for  what  they  had  put  in,  and  told  him 
this  was  $2,500  apiece.  The  annual  report 
of  the  Luce  &  Banks  Company  filed  March 
20th  with  the  Secretary  of  State  shows  assets 
$6,343.03,  and  liabilities  $5,350.  The  case 
was  submitted  upon  the  charge  of  the  court 
to  the  jury,  which  returned  a  verdict  in  favor 
of  defendants  of  not  guilty,  upon  which  a 
judgment  was  duly  entered.  Plaintiff  asks 
a  reversal  of  this  judgment  on  account  of 
claimed  errors  which  are  assigned  to  the 
charge  of  the  court  as  given  to  the  jury,  and 
to  refusals  to  charge  as  requested. 

Error  Is  assigned  upon  that  part  of  the 
charge  of  the  court  given  relative  to  the 
application  of  the  statute  of  frauds  to  the 
case  at  bar.  The  charge  of  the  court  on 
this  point  was :  "For  another  reason :  These 
statements  alleged  to  have  been  made  by  the 
defendant  Luce  concerning  the  prosperity  of 
the  business  as  to  the  company  being  prosper- 
ous and  doing  a  good  business  and  doing 
well,  and  also  the  statement  that  the  com- 
pany was  out  of  debt  if  it  were  made  by 
the  defendant  Luce,  and  if  in  fact  were  un- 
true, or  if  both  of  these  statements  to  plain- 
tiff were  untrue,  they  do  not  form  or  con- 
stitute any  basis  of  recovery  in  this  case. 
And  even  though  you  should  find  that  these 
statements  were  made  by  the  defendant  Luce, 
and  that  they  were  untrue,  and  even  though 
you  should  find  they  were  made  for  the  pur- 
pose of  deceiving  the  plaintiff,  and  that  he 


was  actually  Injured  thereby,  the  plaintiff 
cannot  recover  any  damages  that  he  claims 
to  have  sustained  because  of  such  representa- 
tions or  statements.  The  reason  for  that  is 
this:  That  we  have  a  statute  in  this  state 
which  precludes  the  recovery  for  any  such 
misrepresentations  or  statements,  and  that 
statute  is  as  follows:  'No  action  shall  be 
brought  charging  any  person  upon  or  by  rea- 
son of  any  favorable  representation  or  as- 
surance made  concerning  the  character,  con- 
duct, credit  ability,  trade  or  dealings  with 
any  other  person,  unless  such  representa- 
tions or  assurances  be  made  in  writing  and 
signed  by  the  party  to  be  charged  thereby, 
or  by  some  person  thereunto  by  him  lawfully 
authorized.'  80  that  I  say  as  to  the  repre- 
sentations claimed  to  have  been  made  by  the 
defendant  Luce  to  the  plaintiff  that  the  prof- 
its of  the  business  would  be  larger,  and  as 
to  the  representations  claimed  to  have  been 
niade,by  the  defendant  Luce  to  the  plaintiff 
that  the  business  of  the  Luce  &  Banks  Com- 
pany was  prosperous,  and  doing  well,  and 
as  to  the  representation  that  the  Luce  & 
Banks  Company  was  out  of  debt,  there  can 
be  no  recovery  in  this  case.  The  defendants 
are  not  liable  because  of  any  such  statement 
or  representations,  even  if  it  were  made  and 
if  it  were  false,  and  if  it  deceived  the  plain- 
tiff." It  la  contended  that  in  this  portion  of 
the  charge  the  court  included  all  kinds  of 
representations,  even  though  made  fraudu- 
lently and  to  enable  the  party  making  them 
to  profit  thereby.  In  this  case  plaintiff 
claimed  that  these  representations  were  false 
and  untrue,  and  so  known  to  defendants; 
that  they  conspired  together  to  defraud  and 
deceive  him,  and  succeeded  in  getting  $5,000 
by  means  of  such  fraud  and  deceit;  and 
that  they  profited  by  the  result  of  their 
fraudulent  conduct  We  think  that  there  was 
sufilclent  evidence  in  the  case  upon  that  claim 
to  go  to  the  jury  under  proper  instructions, 
and  that  this  part  of  the  charge  does  not 
conform  with  the  construction  which  this 
court  has  given  to  the  statute  upon  which  the 
court  relied. 

In  construing  and  applying  this  statute  the 
court  has  said:  "The  other  point  suggested 
has  no  support  in  the  statute.  The  legal 
provision  concerning  the  necessity  of  repre- 
sentations in  writing  to  sustain  an  action 
uiKtn  favorable  assurances  concerning  the 
character,  conduct  ability,  trade,  or  dealings 
of  another  person  was  intended  to  reach 
cases  where  the  plaintiff  has  dealt  with  and 
given  credit  to  the  person  favorably  mention- 
ed, and  done  so  on  the  faith  of  the  assur- 
ances. The  statute  cannot  apply  to  conspir- 
acies or  frauds  where  the  representation  is 
made  to  enable  the  party  making  it  to  profit 
by  it"  Hess  v.  Culver,  77  Mich.  602.  43  N. 
W.  994,  6  L.  R.  A.  498,  18  Am.  St  Rep.  421, 
aflirmed  and  cited  in  Clark  v.  Ilurd,  79  Mich. 
130,  44  N.  W.  343.  As  to  whether  in  the 
case  at  bar  defendants  received  a  benefit 
or  profit  from  the  money  plaintiff  claims  was 


Digitized  by  VjOOQ  l€ 


MichO 


MOODY  V.  MACOMBER. 


B17 


gotten  from  him  by  fraud  and  deceit  there 
can  be  little  doubt  The  money  to  the  ex- 
tent of  $4,000  was  at  once  applied  to  the 
payment  of  Indebtedness,  a  part  of  which 
would  appear  to  have  been  primarily  their 
joint  and  Individual  obligations,  and  upon 
all  of  which  they  were  liable  as  Indorsers, 
and  also  upon  their  bond.  The  case  in  this 
respect  Is  distinguishable  from  the  case  of 
Getchell  v.  Dusenberry,  145  Mich.  197,  108 
N.  W.  723,  where  at  the  time  suit  was  begun 
the  notes  indorsed  were  not  paid,  and  the 
plaintiff's  money  had  not  been  used  to  take 
up  the  notes.  The  court  was  In  error  in 
charging  the  Jury  as  above  quoted.  If  these 
representations  were  false  and  fraudulent 
and  made  for  the  purpose  of  defrauding 
plaintiff,  and  he  was  injured  and  defrauded 
thereby,  he  is  entitled  to  recover  bis  damages. 
The  court,  considering  the  law  which  gov- 
erned the  case  as  given  in  the  foregoing  quo- 
tation, submitted  to  the  Jury  l^ut  one  of  the 
fraudulent  representations  charged,  namely, 
that  defendant  Luce  represented  that  each 
of  the  defendants  had  Invested  $5,000  in  that 
business.  It  is  apparent  from  what  has  al- 
ready been  said  tbat  the  jury  should  have 
been  allowed  to  consider  all  of  the  claimed 
fraudulent  statements  upon  which  plaintiff 
relied  except  as  to  the  expectation  of  in- 
creased business  and  profits.  The  view  of 
the  court  was  that  one  only  of  the  false 
representations  claimed  must  have  Induced 
plaintiff  to  part  with  his  money.  The  court 
said  (McDonald  y.  Smith,  139  Mich.  218,  102 
N.  W.  668):  "Nor  is  it  necessary  that  the 
false  representations  should  have  been  the 
sole  cause  or  the  principal  inducement. 
•  •  •  If  it  exerted  a  material  influence 
upon  bis  mind,  although  it  is  only  one  of  the 
several  motives  acting  together  which  pro- 
duced the  result,  the  defendant  would  be 
liable."  Smith  on  Fraud,  p.  S3.  The  evi- 
dence of  plaintiff  Is  not  inconsistent  with 
the  theory  that  the  representations  were 
made  of  and  concerning  the  corporation,  even 
though  the  plaintiff  did  not  know  it  was  a 
corporation  until  October,  1907,  and  did  not 
know  of  the  increase  of  capital  or  that  they 
charged  one-half  of  the  money  they  took 
from  him  to  profit  and  loss.  They  were 
talking  of  the  business,  and  this  was  the 
only  business.  It  was  known  to  all  as  Luce 
&  Banks  Company,  and  defendants  insist 
they  were  selling  him  an  interest  in  the  'cor- 
poration, and  insist  that  all  the  representa- 
tions and  statements  they  made  were  with 
relation  to  the  corporation.  They  cannot 
complain  if  their  testimony  in  that  regard  is 
accepted.  Such  evidence  of  plaintiff  was  ad- 
missible under  the  first  count  of  his  declara- 
tion. The  second  count  was  withdrawn  at 
the  trial.  It  is  contended  that  the  court 
shpuld  have  Instructed  for  defendant,  and 
that  plaintiff   cannot  complain   because  the 


result  could  not  have  been  different  As  we 
understand  the  case,  this  contention  cannot 
be  accepted  for  several  reasons,  which  are 
obvious,  the  principal  one  of  which  is  that 
there  was  abundant  evidence  on  the  part  of 
the  plaintiff  to  require  its  submission  to 
the  Jury  upon  the  disputed  questions  of  fact. 

The  receipt  and  retention  by  the  plaintiff 
of  the  check  which  defendants  caused  to  be 
sent  cannot  operate  to  defeat  his  right  of 
action,  and  we  think  that  the  amount  bears 
simply  on  the  measure  of  damages  in  case 
of  recovery  by  plaintiff. 

No  further  discussion  is  required.  Tbe 
Judgment  of  the  circuit  court  is  reversed,  and 
a  new  trial  ordered. 


village:  of  lake  ODESSA  v.  RANDALL. 
(Supreme  Court  of  Michigan.     Sept.  21,  1909.) 

Cbiminal  Law  ({  1023*)— Appeai/— Necessitt 

of  judomert. 

A  cause  on  exceptions  before  sentence  on  a 
conviction  after  trial  by  jury  must  on  objec- 
tion be  dismissed  because  of  the  absence  of  a 
judgment. 

[BW.  Note.— For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  S  2596;   Dec.  Dig.  8  1023.*] 

Case  Made  from  Circuit  Court  Ionia  Coun- 
ty; Frank  D.  M.  Davis,  Judge. 

Fred  A.  Randall  was  convicted  in  the  cir- 
cuit court  of  violating  an  ordinance  of  the 
village  of  Lake  Odessa,  and  he  appeals  on 
exceptions  l>efore  sentence.     Dismissed. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Laurence  W.  Smith,  for  appellant  Thomas 
Johnson  and  R.  A.  Colwell,  for  appellee. 

HOOKER,  J.  This  cause  was  begun  by 
complaint  and  warrant  in  Justice  court;  de- 
fendant being  charged  with  the  violation  of 
a  village  ordinance.  He  appealed  to  the 
circuit  court  where  he  was  found  guilty, 
but  not  sentenced;  the  cause  being  continued 
for  judgment  A  bill  of  exceptions  was  set- 
tled, and  the  cause  is  before  us  upon  excep- 
tions before  sentence,  and  in  that  respect 
appears  to  be  identical  with  the  case  of 
People  V.  Smith,  146  Mich.  193,  109  N, 
W.  411,  except  that  this  case  was  tried  by 
Jury.  The  case  has  been  fully  briefed,  and 
the  point  is  made  that  it  is  not  properly  here. 

It  follows  tbat  the  cause  must  be  dismiss- 
ed.   It  Is  so  ordered. 


MOODY  V.  MACOMBER. 
(Supreme  Court  of  Michigan.    Sept.  21,  1909.) 

1.  Quieting  Title  (J  13*)  —  Possession  of 

Defendant — Effect. 

A  bill  under  Comp.  Laws  1897,  S  448,  to 
quiet  title,  lies,  only  in  case  defendant  is  not  in 
possession. 

[Ed.  NotP.— For  other  cases,  see  Quieting  Ti- 
tle, Cent  Dig.  i  8;    Dec.  Dig.  §  13.* J 


•For  other  cue*  ■••  sama  topic  and  section  NUMBER  in  Dec.  *  Am.  Diss.  1907  to  date,  A  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


518 


122  NOBTHWESTBEN  KEPOETEE. 


(Mlcb. 


2.  Quieting  Title  (8  35*)  —  Possessiow  of 
Plaintiff— Necessity— Pleading. 

A  bill  under  Comp.  Laws  1897,  {  44S,  to 
quiet  title,  must  aver  actual  or  constructive  dob- 
sesaion  in  complainant. 

[Ed.  Note.— For  other  cases,  see  Quieting  Ti- 
tle, Cent.  Dig.  S  74;  Dec  Dig.  S  35>] 

3.  Equity  (§  47»)— Tbial  op  Titlb  to  Land- 
Remedy  AT  Law— Adequacy. 

Title  to  real  estate  should  not  be  tried  in 
equity  where  the  remedy  of  ejectment  is  open, 
unless  the  case  is  within  some  head  of  equity 
jurisdiction. 

[Bid.  Note.— For  other  cases,  see  Equity,  Cent 
Dig.  {  153;   Dec.  Dig.  i  47.*] 

4.  Account  (|  12*)— Bkmedy  at  Law— Ade- 
quacy. 

A  bill  by  an  executor  alleging  that  the  wid- 
ow of  decedent  caused  to  be  recorded  a  deed 
from  decedent  to  her  of  land  described:  that 
she  subsequently  conveyed  the  land  to  defend- 
ant ;  that  the  deed  to  the  widow  was  never  de- 
livered, was  not  to  become  operative  until  dece- 
dent's death,  and  was  merely  an  attempted  tes- 
tamentary disposition  and  revoked  by  a  later 
will;  that  the  deeds  were  a  cloud  on  title  of 
complainant;  that  defendant  was  a  tenant  of 
the  widow  on  the  land;  that  at  the  time  of 
decedent's  death  the  personalty  on  the  land  be- 
longed to  decedent  and  defendant  in  equal 
shares;  that  by  decedent's  will  the  widow  be- 
came entitled  to  the  use  of  his  interest  for  life; 
that  defendant  claimed  that  the  widow  had  sold 
the  half  interest  in  the  personal  property  to 
him,  and  graying  for  the  removal  of  the  cloud 
on  complainant's  title,  and  that  defendant  ac- 
count for  a  half  of  the  personalty— did  not  state 
a  cause  of  action  in  equity  on  the  theory  that 
an  accounting  was  aslsed,  for  the  rights  of  the 

f>arties  as  to  the  personalty  could  be  tried  at 
aw,  and,  as  the  bill  was  insufficient  as  one  to 
quiet  title,  the  remedy  was  not  in  equity. 

[Ed.  Note. — For  other  cases,  see  Account, 
Cent  Dig.  U  62-70;   Dec.  Dig.  {  12,*] 

Appeal  from  Circuit  Court,  Lapeer  County, 
in  Chancery;    George  W.  Smith,  Judge. 

Suit  by  Paul  B.  Moody,  executor  of  John 
B.  Sntton,  deceased,  against  John  B.  Ma- 
comber.  From  an  order  overruling  a  demur- 
rer to  the  bill,  defendant  appeals.  Eeversed 
and  remanded. 

See  120  N.  W.  358. 

Argued  before  GEANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

B.  F.  Reed,  for  appellant  Geer,  WUliams 
&  Halpln,  for  appellee. 


MONTGOMEEY,  J.  This  is  an  appeal 
from  an  order  overruling  a  demurrer  to  com- 
plainant's bill.  The  complainant  is  executor 
of  the  last  will  and  testament  of  John  B. 
Sutton,  deceased,  and  In  that  capacity  claims 
title  to  130  acres  of  land  of  which  John  B. 
Sutton  was  the  owner  at  one  time  during 
his  lifetime.  The  bill  alleges  that  after  the 
death  of  John  B.  Sutton,  his  widow,  Louisa 
A.  Sutton,  caused  to  be  recorded  in  the  office 
of  the  register  of  deeds  a  warranty  deed 
from  John  B.  Sutton  to  her  of  the  land  de- 
scribed In  the  bin,  and  that  on  the  19th  of 
January,  1008,  she  conveyed  by  warranty 
deed  the  premises  described  in  the  bill  to 


John  B.  Macomber,  the  defendant  In  the  suit 
The  bill  further  alleges  that  the  deed  to 
Mrs.  Sutton  was  never  delivered,  and  that 
by  its  terms  it  was  not  to  become  operative 
until  the  death  of  John  B.  Sutton,  and  was 
in  legal  effect  an  attempted  testamentary  dl»- 
posltlon  of  property,  and  was  revoked  by  a 
later  will.  The  bill  also  alleges  that  these 
conveyances  constitute  a  cloud  upon  the  title 
of  complainant,  but  there  Is  no  averment 
that  the  complainant  is  In  possession  of  the 
land  described  In  the  bill,  either  actually  or 
constructively,  or  that  the  defendant  is  out 
of  possession.  The  bill  alleges  that  the  de- 
fendant was  the  tenant  of  Louisa  A.  Sutton 
on  the  premises  after  the  death  of  John  B. 
Sntton  and  until  the  death  of  Louisa  A. 
Sutton,  who  died  on  the  11th  of  January, 
1908,  and  that  at  the  time  of  the  death  of 
John  B.  Sutton  the  personal  property  on  satd 
premises  belonged  to  John  B.  Sutton  and 
John  B.  Macomber  In  equal  shares,  and 
that  by  the  terms  of  the  will  of  John  B. 
Sutton,  Louisa  A.  Sutton  became  entitled  to 
the  use  of  the  interest  of  his  estate  In  said 
personal  property  for  and  during  her  natural 
life,  but  said  John  B.  Macomber  now  claims 
that  said  Louisa  A.  Sutton  sold  the  one-half 
interest  In  said  personal  property  to  him,  and 
now  claims  to  own  the  whole  of  said  per- 
sonal property  by  reason  of  a  bill  of  sale 
of  the  one-half  Interest  given  to  him  by  the 
said  Louisa  A.  Sutton.  The  bill  prays  that 
the  cloud  upon  complainant's  title  be  re- 
moved, and  also  prays  that  the  defendant 
account  for  one-half  of  the  personal  prop- 
erty on  the  farm  at  the  death  of  Louisa  A. 
Sutton.  We  are  constrained  to  hold  that  the 
court  was  in  error  In  overruling  the  demur- 
rer. The  bill  Is  essentially  a  bill  to  quiet 
title  to  real  estate,  and  to  maintain  such  a 
bill  under  the  statute  (Comp.  Laws,  {  448) 
It  Is  essential  to  aver  possession  In  complain- 
ant, either  actual  or  constructive.  Such  a 
bill  lies  only  In  case  the  defendant  Is  not 
In  possession.  See  Seymour  -v.  Rood,  121 
Mich.  173,  79  N.  W,  1100;  Chandler  v.  Gra- 
ham, 123  Mich.  327,  82  N.  W.  814;  Crosby  v. 
Hutchinson,  126  Mich.  56,  85  N.  W.  255. 

It  is  conceded  that  this  is  the  general  rule; 
but  it  Is  urged  that,  whereas  In  this  case  the 
.question  of  right  depends  upon  the  construc- 
tion of  a  deed  and  there  Is  no  occasion  for 
the  intervention  of  a  jury.  It  Is  Immaterial 
whether  the  Judge  is  sitting  on  the  law  or 
chancery  side  of  the  court,  and  In  such  case 
an  exception  should  be  ingrafted  on  the  rule 
stated  in  the  cases  cited.  We  think  It  far 
tietter  that  the  practice  should  be  adhered 
to,  and  that  the  title  to  real  estate  should 
not  be  left  to  be  tried  In  equity  where  the 
remedy  of  ejectment  Is  open,  unless  the  case 
Is  distinctly  brought  under  some  other  head 
of  equity  jurisprudence.  In  this  case  no 
charge  of  fraud   appears  In  the  bill,   and 


•For  oth«r  ca»M  see  same  toplo  and  secUon  NUMBER  In  Dec.  *  Am.  Dtgi.  1907  to  date,  *  Reporter  Induea 


Digitized  by  LjOOQ  l€ 


Mich.) 


KNUD8EN  T.  OITY  OF  MUSKEGON. 


619 


there  Is  no  reason  for  departing  from  the 
rule  on  that  ground. 

It  Is  urged  In  this  court  that,  as  an  ac- 
counting aa  to  the  personal  property  la  ask- 
ed, equity  would  obtain  jurisdiction  for  that 
purpose.  As  the  bUl  is  framed,  there  Is 
nothing  to  indicate  that  the  title  or  interest 
of  the  executor  is  other  than  an  undivided 
one-half  Interest  In  the  personal  property. 
There  Is  no  averment  of  any  uncertainty  as 
to  what  this  property  consists  of,  and  no 
suggestion  in  the  bill  that  there  has  been  any 
depreciation  of  property  to  be  taken  Into  ac- 
count. We  see  no  reason,  therefore,  why 
the  rights  of  the  parties  as  to  the  personal 
property  may  not  be  tried  at  law.  Nor  does 
the  bill  allege  that  there  has  been  any  de- 
mand for  an  accounting.  We  think  the  case 
is  clearly  one  of  mistaken  remedy. 

The  decree  will  be  reversed,  with  costs  of 
both  courts,  and  the  case  remanded. 


KNUDSEN  V.  CITY  OP  MUSKEGON. 
(Supreme  Onrt  of  Michigan.    Sept  21,  1909.) 

1.  PixAniNo  (S  248*)  —  Akendmbrt  —  New 
Cause  of  Actior. 

In  an  injury  action  against  a  city,  an  orig- 
inal coant  alleged  that  a  water  meter  box  was 
constmcted  by  the  city,  which  was  duly  au- 
thorized to  and  engaged  in  selling  water  to  its 
citizens  in  a  public  street  of  the  city  open  and 
used  for  public  travel,  and  that  the  city  negli- 
gently left  the  meter  box  uncovered,  "and  there- 
by put  the  said  street  in  a  dangerous  condition 
and  unsafe  for  public  travel  all  that  time,"  Into 
which  plaintiff  fell.  An  amending  count  was 
substantially  the  same  as  the  original  except 
as  to  allegations  respecting  the  negligent  uncov- 
ering, as  to  which  it  charged  that  the  opening 
was  negligently  and  carelessly  left  with  inse- 
cure and  improper  covering,  and  in  its  omission 
of  the  quoted  portion  of  the  original  count. 
Held,  that  the  original  count  did  not  charge  neg- 
ligence under  the  statute  permitting  recovery  for 
personal  injuries  upon  a  highway  caused  by  neg- 
ligence of  a  municipality,  since  though  it  alleg- 
ed that  the  condition  permitted  by  the  city  was 
in  a  public  traveled  street,  and  put  the  street  in 
a  dangerous  condition  and  unsafe  for  travel, 
such  statements  were  incidents  of  location  and 
condition,  and  the  count  omitted  material  allega- 
tions of  diity  imposed  or  neglected ;  and  hence 
the  amending  count  did  not  charge  a  new  sub- 
stantive cause  of  action  for  common-law  negli- 
gence. 

[Ed.    Note.— For   other   cases,    see    Pleading, 
Cent.  Dig.  fS  686-709;   Dec.  Dig.  {  248.*] 

2.  PuiADiNG  (§  369*)  —  Ambndment  —  Incon- 
sistent AixEOATioN  or  Neolioence— Elec- 
tion. 

The  allegation  of  negligence  in  the  original 
count  that  the  meter  box  was  not  covered  and 
was  left  uncovered  until  the  accident,  and  the  al- 
legations in  the  amending  count  that  the  city 
failed  to  properly  cover  the  meter  box,  were  not 
inconsistent,  so  as  to  require  an  election. 

[Ed.    Note.— For   other   cases,    see    Pleading, 
Cent.  Dig.  t  1199;   Dec.  Dig.  i  809.*] 

8.   MUNICIPAI,     COBPOBATIONS     <i     812*)— AC- 
TIONS FOB  Injuries— Notice— StTPFiciENCT. 
A  notice  to  a  city  of  a  claim  for  personal 
injuries  Is  not  a  pleading,  and  need  not  specific- 
ally charge  negligence  of  the  city,  and  under  a 


city  charter  providing  that  no  claims  against  the 
city  for  damages  for  negligence  or  default  of 
the  city  shall  be  allowed  unless  it  be  accom- 
panied by  an  affidavit  of  the  persons  injured 
stating  the  time  and  place  and  the  cause  and 
manner  of  the  injuries,  and  the  facts  connected 
therewith,  a  notice  stating  upon  the  question  of 
cause  that  the  opening  into  which  the  person  fell 
and  which  caused  the  Injury,  describing  It  and 
its  purpose,  was  left  uncovered,  and  that  he  did 
not  see  it  in  the  nighttime,  and  did  not  know 
it  was  there,  was  sufficient. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  {  1702:  Dec  Dig.  i 
812.»] 

4.  Dauaoeb  (5  216*)— Action  fob  Injubies— 

Dauaqis. 

In  a  personal  injury  case,  where  there  was 
evidence  that  plaintiff's  injury  resulting  in  a 
serious  stricture,  which  was  permanent,  would 
become  worse  as  time  passed,  and  involve  seri- 
ous results,  a  charge  that  plaintiff  would  be  en- 
titled to  receive  compensation  for  past  physical 
sufferings  and  for  such  as  will  result  in  the 
future  from  his  known  physical  condition  due 
to  his  injury  and  from  operations  for  his  relief 
was  proper. 

[Ed.  Note.— For  other  cases,  see  Damages, 
Cent  Dig.  {{  548-555;  Dec.  Dig.  S  216.*] 

Error  to  Circuit  Court,  Muskegon  County ; 
Clarence  W.  Sessions,  Judge. 

Action  by  John  A.  Knudsen  against  the 
City  of  Muskegon.  ^Judgment  for  plaintiff, 
and  defendant  brings  error.    Affirmed. 

There  was  evidence  that  the  plaintlfTs  In- 
Jury  resulted  in  a  rupture  of  the  urethra,  and 
that  as  a  consequence  a  stricture  formed,  so 
that  a  passage  into  the  bladder  with  even  the 
very  smallest  Instrument  could  not  be  bad, 
that  the  Injury  was  permanent  and  liable  to 
grow  worse  as  time  passed,  with  very  serious 
results  to  a  man  of  plaintiffs  age. 

Argued  before  BLAIR,  C.  J.,  and  MONT- 
GOMERY, HOOKER,  McALVAY,  and 
BROOKE,  JJ. 

James  E.  Sullivan,  for  appellant  William 
Carpenter,  for  appellee. 

McALVAY,  J.  Plaintiff  recovered  against 
defendant  damages  for  personal  injuries 
caused  by  falling  Into  an  uncovered  opening 
which  contained  a  city  water  meter  on  Pros- 
pect street,  in  said  city.  This  street  runs 
nearly  north  and  south.  Plaintiff  lives  on 
the  west  side  of  this  street  The  meter  box 
into  which  he  fell  is  diagonally  across  the 
street,  about  66  feet  further  south.  The  city 
operates  its  waterworks,  selling  water  to 
private  citizens,  and  puts  In  cement  meter 
boxes  in  which  are  located  the  water  meters, 
which  belong  to  the  city  and  are  under  its 
control.  This  box  was  within  two  feet  of 
the  cement  sidewalk,  and  about  in  line  with 
the  shade  trees  in  the  parking  between  the 
sidewalk  and  the  curb.  It  was  6  feet  and 
8  Inches  in  depth,  and  20  Inches  square.  It 
was  completed  by  the  city  employes  June  10, 
1907. 

At  about  9  o'clock  in  the  evening  of  July 
30,  1907,  plaintiff  crossed  this  street  to  go  to 


•For  other  cues  sm  sams  topic  and  section  NUUBER  In  Dec.  t  Am.  Dig*.  1907  to  date,  t  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


520 


122  NORTHWESTERN  REPORTER. 


(Micb. 


a  house  further  south  and  beyond  the  Jen- 
sen property,  which  he  passed  on  his  way. 
He  returned  In  10  minutes.  He  knew  that 
there  was  a  pile  of  lumber  In  the  street  be- 
fore the  lot  where  Jensen  had  been  building, 
but  did  not  know  about  the  meter  box,  or 
any  hole  In  the  ground.  On  his  return  home, 
when  passing  Jensen's  house,  he  saw  a  light 
In  his  own  house,  and  started  to  cross  the 
street.  It  was  too  dark  to  see  where  he  was 
stepping,  and  the  second  step  from  the  side- 
walk he  fell  Into  this  meter  box  and  was  in- 
jured. The  box  was  not  covered  at  the  time. 
Of  the  errors  relied  upon  alleged  to  have 
been  committed  during  the  course  of  the  pro- 
ceedings and  upon  which  a  reversal  of  the 
judgment  is  asked  defendant  first  discusses 
the  amendments  to  the  declaration  allowed 
by  the  court. 

When  the  case  was  first  brought  on  for 
trial  and  the  court  was  about  to  direct  a  ver- 
dict for  defendant,  it  Is  stated  in  both  briefs 
that,  upon  application  of  plaintiff,  he  was  al- 
lowed to  amend  his  declaration,  and  the  case 
was  continued.  Under  such  permission  two 
counts  were  added  to  the  declaration.  De- 
fendant has  in  proper  form  raised  the  ques- 
tion whether  plaintiff  cyi  recover  upon  the 
amended  declaration;  It  being  claimed  that 
a  new  cause  of  action  has  been  alleged.  The 
declaration  upon  which  the  case  was  first 
tried  consisted  of  two  counts.  The  first 
count  alleged  that  this  street  was  at  the  time 
of  the  injury,  and  for  many  years  had  been, 
a  street  open  for  public  travel  and  under  the 
care  and  control  of  defendant,  and  charging  a 
duty  to  keep  the  same  in  reasonable  repair 
and  In  a  condition  reasonably  safe  and  fit  for 
travel,  etc.,  alleging  the  construction  of  this 
meter  box  and  leaving  it  uncovered,  and 
charging  that  it  was  negligent  in  so  doing, 
and  in  not  keeping  the  street  In  the  required 
safe  condition, ,  etc.  The  second  count  set 
forth  that  this  was  done  by  defendant,  duly 
authorized  and  engaged  In  selling  and  fur- 
nishing water  to  its  citizens,  and  the  placing 
of  the  meter  box  "constructed  in  a  public 
street  In  said  city  open  and  used  for  public 
travel  which  defendant  negligently  left  un- 
covered, •  •  •  and  thereby  put  the  said 
street  in  a  dangerous  condition  and  unsafe 
for  public  travel  during  all  that  time,  into 
which  plaintiff  fell."  etc.  In  this  count  no 
duty  is  charged.  The  third  count,  added  by 
amendment,  difl^ered  from  the  first  only  in 
that  It  charged  that  the  opening  was  negli- 
gently and  carelessly  left  with  inseciire  and 
improper  covering.  TJie  fourth  count  also 
added  by  amendment  Is  substantially  the 
same  as  the  second,  except  as  to  the  negli- 
gent covering,  which  is  alleged  the  same  as  In 
the  third  count,  and  It  omits  the  words  above 
quoted :  "And  thereby  put  the  said  street  in 
a  dangerous  condition  and  unsafe  for  public 
travel  all  that  time." 

Defendant  contends  that  the  first,  second, 
and  third  counts  are  all  based  upon  the  stat- 
utory right  to  recover  damages  for  personal 


injuries  upon  a  highway  In  Michigan  caused 
by  negligence  of  the  municipality;'  that  the 
fourth  count  charges  a  new  substantive  cause 
of  action,  charging  and  setting  forth  an  ac- 
tion for  common-law  negligence.  We  do  not 
agree  with  the  defendant  that  the  second 
count  charges  negligence  under  the  statute. 
Although  It  Is  set  forth  that  the  condition 
permitted  by  defendant  was  In  a  public  trav- 
eled street  and  put  the  street  in  a  dangerous 
condition  and  unsafe  for  travel.  It  is  evident 
that  such  statements  are  incidents  of  loca- 
tion and  condition,  and  the  count  as  a  whole 
would  not  be  sufficient  for  a  recovery  under 
the  statute  by  reason  of  the  omission  of  ma- 
terial allegations  of  duty  Imposed  or  neglect- 
ed. Defendant  has  presented  this  question 
learnedly  and  at  length  In  Its  brief.  It  will 
not  be  necessary  further  to  consider  It  or  dis- 
cuss cases  cited  on  either  side.  The  trial 
court  denied  a  recovery  on  the  first  and  third 
counts,  and  submitted  the  case  upon  the  sec- 
ond count  as  amended  by  the  fourth.  The 
court  was  not  In  error  In  allowing  the  amend- 
ments objected  to.  We  are  not  called  upon 
to  say  that  a  recovery  could  not  have  been 
had  under  the  first  and  third  counts  under 
the  facts  claimed  by  plaintiff  and  express  no 
opinion  upon  that  question. 

Objection  was  made  that  the  claim  as  pre- 
sented to  the  council  was  not  sufficient,  in 
that  It  did  not  comply  with  the  requirements 
of  the  city  charter,  which  provides  that  "no 
claims  against  said  city  for  damages  grow- 
ing out  of  the  negligence  or  default  of  said 
city  or  of  any  officer  or  employ^  thereof  shall 
be  audited  or  allowed  unless  It  shall  be  ac- 
companied by  an  affidavit  of  the  persons  sus- 
taining such  Injuries  stating  the  time  and 
place  at  which  and  the  cause  and  manner  of 
sustaining  such  injuries,  and  the  facts  con- 
nected therewith."  The  notice  In  question, 
filed  In  due  time,  detailed  with  particularity 
the  time,  place,  and  manner  of  the  Injury, 
and  upon  the  question  of  cause  stated  that 
this  opening,  describing  It  and  its  purpose, 
was  left  uncovered,  that  he  did  not  see  It  in 
the  night  time,  and  did  not  know  It  was 
there.  The  court  held  the  notice  sufficient. 
The  objection  is  that  the  notice  states  no 
negligence  on  the  part  of  the  city.  It  Is  not 
Intended  that  this  notice  should  charge  negli- 
gence specifically.  This  court  has  said,  "This 
notice  is  not  a  pleading,"  and  in  several  cas- 
es has  held  notices  good  which  were  less  spe- 
cific than  the  one  in  this  case.  Brown  v. 
Owosso,  126  Mich.  91,  85  N.  W.  250 ;  W^heel- 
er  V.  Detroit,  127  Mich.  329,  86  N.  W.  822; 
Wilton  V.  City  of  Flint,  128  Mich.  156,  87  N. 
W.  86.  The  notice  was  sufficient  An  ex- 
amination of  the  record  relative  to  alleged 
misconduct  of  counsel  for  plaintiff  during  the 
trial  discloses  no  conduct  which  warrants  the 
criticism  made  by  counsel  for  defendant,  or 
which  was  prejudicial  to  defendant 

Error  is  assigned  upon  the  refusal  of  the 
court  to  require  plaintiff  to  elect  upon  which 
of  the  counts  that  were  allowed  to  stand  In 


Digitized  by  VjOOQ  l€ 


MldL) 


CAMP  V.  CAMP. 


521 


the  case  he  wonid  proceed  on  the  ground  that 
these  two  counts  were  Inconsistent.  We  have 
already  stated  that  the  second  count  was  not 
on  the  statute  charging  that  the  dty  did  not 
keep  Its  streets  in  reasonable  repair  and  fit 
for  public  travel.  Defendant  claims  that, 
even  if  this  Is  so,  the  charges  of  negligence  in 
the  second  and  fourth  counts  are  contradic- 
tory. This  Is  based  upon  the  fact  that  one 
charges  that  the  meter  box  was  not  covered 
and  was  left  uncovered  until  the  accident, 
and  the  other  (which  Is  an  amendment) 
charges  negligence  in  that  the  defendant  fail- 
ed to  properly  cover  the  meter  box,  placing 
over  it  loose  boards,  eta  The  counts  were 
not  inconsistent. 

The  final  error  assigned  is  upon  the  fol- 
lowing charge  of  the  court  on  the  question  of 
damages:  "He  will  be  entitled  to  receive 
compensation  for  his  physical  suCTerlngs  in 
the  past  and  for  such  as  will  result  tn  the 
future  from  his  known  physical  condition  due 
to  his  injury  and  from  operations  for  his  re- 
lief." This  charge  under  the  evidence  In  the 
case  was  within  the  decisions  of  this  court. 
Seattle  v.  City  of  Detroit,  137  Mich.  319,  100 
N.  W.  574,  and  cases  cited. 

The  Judgment  will  be  affirmed. 


tJNION  TRUST  CO.  et  al.  v.  COMMON 

COUNCIL  OF  CITY  OF  DETROIT 

et  al. 

(Sapreme  Court  of  Michigan.     Sept  21,  1909.) 

MuNiciPAi;   C0BP09AT10N8    (i   801*)— Fiscal 

MaNAOEMENT— ApPBOPRIATIONS— PUBPOSE. 

The  commissioner  of  public  works  asked 
the  city  council  and  board  of  estimates  for  an 
appropriation  for  "constructing  •  *  •  sewer 
and  outlet  $100,000;  for  pumping  station  and 
machinery,  $60,000"— and  the  committee  on  es- 
timates reported  the  appropriation  in  the  same 
language.  The  estimate  of  the  city  engineer  for 
the  pumping  station  did  not  include  the  cost 
of  a  site  therefor ;  he  believing  that  it  would  be 
bnilt  on  city  land  but  it  did  not  appear  that  the 
conncil  or  board  of  estimates  knew  of  the  omis- 
sion of  the  item  for  the  site.  Held,  under  the 
facts,  that  the  appropriation  for  a  pumping  sta- 
tion and  machinery  included  the  cost  of  a  site, 
as  well  as  all  other  things  necessary  to  the  pur- 
pose. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Dee.  Dig.  g  891.*] 

Appeal  from  Circuit  Court,  Wayne  Coimty, 
to  Chancery;  Henry  A.  Mandell,  Judge. 

Suit  by  the  Union  Trust  Company,  Adminis- 
trator of  Joseph  H.  Berry,  deceased,  and  oth- 
ers against  the  Common  Council  of  the  City  of 
Detroit  and  others,  to  enjoin  payment  for  a 
site  for  a  pumping  station.  From  a  Judg- 
ment for  complainants,  defendants  appeal. 
Reversed,  and  bill  dismissed. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Richard  I.  Lawson  (P.  J.  M.  Hally.  of  coun- 
sel), for  appellants.  Angell,  Boynton,  McMil- 
lan &  Bodman,  for  appellees. 


HOOKER,  J.  In  planning  and  providing 
for  sewers  for  that  portion  of  the  city  of 
Detroit  which  was  previously  known  as  Fair- 
view  it  was  found  necessary  to  include  a 
pumping  station  and  pumps.  The  commis- 
sioner of  public  works  asked  the  council  and 
the  board  of  estimates  for  an  appropriation 
In  the  following  language:  "Newly  annexed 
district,  Fairvlew,  for  constructing  to  Con- 
nor's creek,  sewer  and  outlet,  $100,000.  For 
pumping  station  and  machinery,  $60,000." 
This  was  referred  to  the  committee  on  esti- 
raates,  and  it  was  reported  by  said  commit- 
tee In  the  same  language.  This  report  was 
unanimously  adopted  by  the  council,  and  the 
amount  was  raised  by  tax  in  the  year  1907. 
Thereupon  the  commissioner  of  public  works 
entered  Into  a  contract  for  a  site  for  the 
pumphouse,  for  the  sum  of  $20,000,  and  this 
was  confirmed  by  the  council  September  8, 
1908.  Thereupon  the  complainants  filed  the 
bill  In  this  cause,  and  procured  a  decree  re- 
straining the  payment  for  said  site,  and  the 
defendants  have  appealed. 

Oral  testimony  was  given  showing  that  the 
city  engineer  made  the  estimate,  and  that 
from,  such  estimate  remaining  in  his  office  it 
appeared  that  he  did  not  include  any  sum  for 
a  site.  It  also  appeared  by  testimony  that 
the  sums  recommended  were  found  insuf- 
ficient to  pay  for  the  construction  of  the 
sewer  and  the  erection  of  the  pumphouse  and 
machinery,  and  the  city  engineer  has  asked 
for  $102,000  in  addition  to  the  $160,000  rais- 
ed, in  which  be  includes  $20,000  for  a  site. 
The  engineer  testified  that  he  omitted  an  item 
for  site  in  his  first  estimate  because  he  sup- 
posed the  bouse  would  be  built  on  land  then 
owned  by  the  city.  We  do  not  discover  that 
the  cotmcil  was  advised  of  the  engineer's 
omission  to  include  an  item  for  a  site,  or  bis 
supposition  that  the  pumphouse  would  be 
erected  on  land  then  belonging  to  the  city, 
or  that  either  the  council  or  board  of  esti- 
mates supposed  the  site  not  to  be  Included 
in  the  estimate,  or  approved  of  a  location 
on  land  then  belonging  to  the  city.  There 
cannot  well  be  a  pumping  station  without 
a  site,  and  it  would  be  naturally  inferred 
that  an  appropriation  for  a  pumping  station 
and  machinery  included  any  and  all  things 
necessary  for  the  purpose  in  view,  site,  build- 
ing, machinery,  pumps,  and  any  otiier  items 
not  specifically  mentioned.  We  must  so  hold 
in  the  absence  of  clearer  evidence  than  this 
record  afFords  that  the  council  intended  some- 
thing less. 

The  decree  Is  reversed,  and  the  bill  dis- 
missed, with  costs  of  both  courta 


CAMP  v.  CAMP. 

(Supreme  Court  of  Michigan.     Sept.  21,  1909.) 

1.  DivoBCE  (8  303*)— Custody  of  CniLDREN— 
Modification  of  Decree. 

On  petition  by  the  husband  for  the  modifica- 
tion of  a  provision  of  a  divorce  decree,  which 


•Fer  other  caies  se*  laue  topic  and  stcUon  NUMBER  ka  Deo.  *  Am.  Dlga.  1907  to  date,  ft  RsportM  Ind«x«a 


Digitized  by 


L-oogle 


522 


122  NORTHWESTBBN  BSPORTEB. 


(Mich. 


provided  for  a  monthly  allowance,  dnring  mi- 
nority, for  support  of  a  son,  custody  of  wtiom 
was  given  to  the  wife.  charKes  of  misconduct, 
etc.,  which  would  have  denied  the  wife  a  di- 
vorce, and  prevented  defendant  from  having  cus- 
tody of  the  daughter  awarded  to  him,  cannot  be 
considered,  being  settled  by  the  divorce  suit. 

[Ed.  Note.— For  other  cases,  see  Divorce,  Cent. 
Dig.  i  796;    Dec.  Dig.  {  303.»] 
2.  DivoBCK  (S  309*)— Support  of  Chiid— Mod- 

mCATION   OF  DeCBEE— AnXHOBITT. 

Under  Comp.  Laws  1897,  !  8641,  authori- 
zing a  chancery  court  at  any  time,  on  petition 
of  either  party,  to  revise  and  alter  a  divorce  de- 
cree as  to  an  allowance  for  support  of  minor 
children,  whether  the  provision  for  support  was 
incorporated  in  the  decree  by  agreement  of  the 
parties  or  by  determination  of  the  court  is  im- 
material;   the  court  having  jurisdiction  to  re- 


Dlvorce,  Cent. 


vise  it  in  either  case. 

[EM.  Note. — For  other  cases,  see 
Dig.  i  808;   Dec.  Dig.  S  309.*] 

3.  DivoBCE  (§  309*)— SUPPOBT  or  Childbbn— 
Amount  of  Aixowance— Reduction. 

By  a  divorce  decree  the  wife  was  given  81,- 
000  and  most  of  the  household  goods,  together 
with  $50  a  month  allowance,  during  minority 
for  the  support  of  their  son,  upon  her  represen- 
tation that  she  would  have  to  work  to  support 
herself  and  employ  some  one  to  care  for  the 
child,  but  she  immediately  thereafter  provided  a 
home  for  herself  and  child  by  marrying.  When 
the  suit  was  pending  the  husband  believed  be 
would  receive  some  $15,000  out  of  his  father's 
estate,  but  bis  final  share  was  only  $1,500,  and 
the  money  he  paid  his  wife  under  the  decree  was 
borrowed  on  the  security  of  bis  share  of  the  es- 
tate. Held,  that  the  allowance  of  $50  a  month 
for  the  son  8  support  was  unreasonable  in  view 
of  the  altered  conditions ;  $30  being  a  reasonable 
amount 

[Ed.  Note.— For  other  cases,  see  Divorce,  Gent 
Dig.  S  803 ;   Dec  Dig.  {  309.*] 

Appeal  from  Circuit  Court,  Kent  County, 
In  Chancery;  WIIUb  B.  Perkins,  Judge. 

Suit  by  Jessie  May  Camp  against  Talcott 
H.  Camp,  in  which  plaintlfT  was  granted  a 
divorce  and  given  custody  of  a  child,  with 
an  allowance  for  its  support,  after  which  de- 
fendant applied  to  modify  the  decree  as  to 
such  allowance.  From  a  Judgment  denying 
the  application,  defendant  appeals.  Revers- 
ed, and  decree  entered  allowing  a  less 
amount 

Argued  before  BtrAIR,  O.  J.,  and  GRANT, 
MONTGOMERY,  McALVAT,  and  BROOKE, 
JJ. 

Dunham  &  Phelps,  for  appellant  Mc- 
Knlght  &  McAllister,  for  appellee. 

GRANT,  J.  Complainant  and  defendant 
were  married  April  24,  1899,  and  lived  to- 
gether as  husband  and  wife  until  in  August, 
1907.  On  September  18,  1907,  she  filed  her 
bill,  seeking  a  divorce  on  the  ground  of  ex- 
treme cruelty.  He  did  not  appear  to  defend 
the  suit,  and  an  order  pro  confesso  was  en- 
tered. Proofs  were  taken  in  open  court, 
and  a  decree  entered  tn  her  favor  on  No- 
vember 25,  1907.  They  had  two  children,  a 
girl  named  Emily,  seven  years  old,  and  a 
boy  named  Talcott,  three  years  old.  By  the 
decree  the  custody  of  the  daughter  was  com- 


mitted to  the  defendant,  and  the  custody  of 
the  boy  to  the  mother.  Before  the  case  was 
heard  the  parties  made  a  settlement  of  their 
property  rights,  by  which  he  gave  her  $1,000 
in  cash  and  certain  personal  property,  and 
agreed  to  pay  $50  per  month  for  the  support 
and  maintenance  of  the  boy  until  he  attain- 
ed his  majority.  It  was  further  provided  In 
the  decree  that  the  mother  would  have  tbe 
right  to  have  in  her  custody  and  control, 
not  exceeding  three  months  during  any  one 
year,  the  daughter,  and  the  right  to  visit 
her  at  all  other  reasonable  times,  and  that 
the  father  should  have  the  right  to  tbe  cus- 
tody and  control  of  the  son  in  like  manner 
for  the  same  time,  and  the  right  to  yisit 
blm  at  all  other  reasonable  times.  This 
agreement  was  incorporated  In  the  decree, 
as  the  defendant  now  claims,  without  his 
knowledge.  Eight  days  after  the  decree  was 
rendered  complainant  went  to  Chicago,  and 
was  there  married  to  a  man  named  Preble. 
Defendant  married  again  on  February  8, 
1908.  He  was  a  traveling  man,  selling  fur- 
niture upon  commission.  He  paid  the  al- 
lowance for  the  care  of  the  son  until  March 
1,  1908.  On  May  18,  1908,  he  filed  this  pe- 
tition asking  for  a  modification  of  the  decree 
of  the  allowance  for  the  care  of  the  son.  In 
this  petition  he  details  at  length  their  mar- 
ried life;  and,  if  tbe  allegations  be  there 
makes  are  true,  she  was  not  entitled  to  a 
divorce,  and  he  should  have  contested  the 
case.  She  filed  a  long  answer  to  tbe  peti- 
tion, charging  him  with  gross  and  vile  mis- 
conduct In  disregard  of  bis  marital  relations, 
of  which  she  makes  no  claim  that,  she  was 
not  informed  at  tbe  time  she  filed  her  bill. 
To  her  answer  the  defendant  filed  an  an- 
swer, denying  in  detail  all  the  charges  made 
by  her.  If  her  allegations  of  misconduct 
are  true,  the  defendant  was  an  unfit  per- 
son to  have  charge  and  control  of  his  daugh- 
ter, and  no  mother  with  a  proper  regard  for 
her  daughter  would  have  consented  to  com- 
mit to  such  a  man  her  care,  custody,  and 
education.  All  these  charges  and  counter 
charges,  however,  were  settled  In  the  di- 
vorce suit  and  cannot  be  reconsidered  and 
retried  In  this  petition.  Smith  v.  Smith,  139 
Mich.  133,  102  N.  W.  631.  He  now  charges 
that  tbe  settlement  agreement  was  obtained 
by  fraud  and  misrepresentations  on  her  part 
Tbe  chief  charge  of  fraud  is  that  she  false- 
ly represented  that  she  would  be  compelled 
to  go  to  work  to  obtain  money  for  her  sup- 
port and  tliat  of  her  boy;  that  she  had  made 
arrangements  to  do  bo,  and  would  be  com- 
pelled to  employ  a  nurse  to  take  care  of 
him,  whereas  in  fact  she  was  then  engaged 
to  be  married  as  soon  as  the  divorce  was 
obtained,  and,  prior  to  the  granting  of  tbe 
decree,  had  moved  many  of  her  household 
goods  to  tbe  house  of  her  prospective  hus- 
band. 
The  statute  (Comp.  Laws,  t  8641)  author- 


•For  ether  cues  see  ume  topic  and  section  NUMBER  In  Deo.  ft  Am.  Digs.  1907  to  dat^  ft  Reporter  Isdnai 


Digitized  by  LjOOQ  l€ 


Mlcb.) 


FORSYTH  ▼.  CITY  OF  SAGINAW. 


523 


Izes  conrts  of  cbancery  to  at  any  time,  on 
the  petition  of  either  party,  revise  and  alter 
the  decree  as  to  alimony  or  allowance  for 
the  support  of  minor  children.  The  learned 
circuit  Judge  held  that  the  only  remedy  of 
the  defendant  was  by  a  direct  proceeding 
to  set  aside  the  contract  of  settlement.  In 
this  we  think  he  was  In  error.  It  is  imma- 
terial whether  the  decree  for  alimony  and 
the  support  of  children  is  incorporated  in 
the  decree  by  the  consent  of  the  parties,  or 
by  a  determination  of  the  court  When  once 
incorporated  in  the  decree  the  court  obtains 
jurisdiction  to  revise  it  at  any  time  there- 
after. The  sole  question  therefore  is  wheth- 
er the  defendant  by  his  petition  and  evi- 
dence has  made  a  case  entitling  him  to  any 
modification.  In  determining  this  question 
the  court  may  take  into  consideration  the 
altered  condition  of  the  complainant,  the 
conditions  under  which  the  amount  of  ali- 
mony and  allowance  was  fixed  at  the  time 
of  the  decree,  and  the  financial  condition  of 
the  defendant.  By  the  decree  complainant 
obtained  a  thousand  dollars  in  cash,  and 
nearly  all  of  the  household  goods,  under  the 
representation  that  she  would  be  compelled 
to  go  to  work  to  earn  money  for  herself, 
and  would  have  to  employ  some  one  to  take 
care  of  her  child.  Defendant's  father  was 
dead,  and  be  believed  at  that  time  that  he 
would  receive  from  the  estate  about  $15,000, 
but  upon  the  closing  of  the  estate  his  share 
was  only  about  $1,500.  He  borrowed  the 
thousand  dollars  from  his  mother,  and  mort- 
gaged his  share  of  the  estate  as  security.  By 
her  Immediate  marriage  she  was  relieved 
from  her  own  support,  and  was  provided  a 
home  for  herself  as  well  as  her  chUd.  Under 
these  circumstances  and  the  present  condition 
of  the  parties  we  think  $50  a  month  an  unrea- 
sonable allowance.  In  view  of  the  fact  that 
he  has  himself  and  his  daughter  to  support 
Thirty  dollars  per  month  is,  a  reasonable 
allowance. 

The  decree  of  the  court  is  therefore  re- 
versed, and  decree  entered  in  this  court  for 
the  payment  of  $30  per  month  for  the  sup- 
port of  the  child,  until  the  further  order  of 
the  court;  this  allowance  to  date  from  the 
time  of  the  filing  of  the  petition,  May  18, 
1906.    Ko  costs  will  be  allowed. 


FORSYTH  T.  CITY  OF  SAGINAW. 
(Supreme  Court  of  Michigan.     Sept  21,  1009.) 

MONICIFAL  COBPORATIONS  (S  788*)  —  DEFEC- 

TivB  Stbeets— Liability. 

Saginaw  City  Charter,  Loc.  Acts  1905,  p. 
751,  No.  560,  tit  24,  {  24,  providing  tbat  no 
action  shall  be  maiotained  SKainst  the  city  for 
injuries  from  defective  streets,  unless  written 
notice  of  the  defect  was  given  to  the  board  of 
public  works,  and  there  was  a  neglect,  within  a 
reasonable  time  thereafter,  to  remove  the  de- 
fect, applies  to  all  cases  of  civil  action  arising 
under  Comp.  Laws  1897.  {§  3441-3445,  making 


a  city  liable  for  negligently  failing  to  keep  Its 
streets  in  repair,  and  limits  the  liability  of  the 
city  under  the  general  law,  and  the  fact  tbat  the 
city  had  knowledge  of  a  defect  does  not  ex- 
cuse the  failure  to  give  the  written  notice. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {f  1641-1043;  Dec. 
Dig.  i  788.»] 

Error  to  Circuit  Court,  gaglnaw  County; 
William  G.  Gage,  Judge. 

Action  by  Adeline  Forsyth  against  the 
City  of  Saginaw.  There  was  an  order  sus- 
taining a  demurrer  to  the  declaration,  and 
plaintiff  brings  error.     Affirmed. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Herman  Plstorius  and  James  H.  Davltt, 
for  appellant  John  F.  O'Keefe,  for  appel- 
lee. 

OSTRANDER,  J.  The  action  la  brought 
to  recover  damages  for  injuries  which  plain- 
tiff claims  were  sustained  In  tripping  or 
falling  upon  a  defective  sidewalk  In  defend- 
ant city  on  November  28, 1906.  It  is  alleged 
In  the  declaration  that  the  city  had  knowl- 
edge of  the  defective  condition  of  the  walk, 
and  neglected  for  a  year  and  more  to  repair 
It  The  charter  of  the  defendant  city  eon- 
tains  the  following  provision:  "No  civil  ac- 
tion shall  be  maintained  against  the  city  for 
damages  or  injuries  to  persons  or  property 
sustained  in  consequence  of  any  street  high- 
way, bridge,  culvert,  sidewalk  or  crosswalk 
being  defective,  out  of  repair,  unsafe,  dan- 
gerous or  obstructive,  unless  it  appear  that 
written  notice  of  the  particular  defective, 
unsafe,  dangerous  or  obstructed  condition  of 
such  street,  highway,  bridge,  culvert,  side- 
walk or  crosswalk  was  actually  given  to 
the  board  of  public  works;  and  that  there 
was  a  failure  or  neglect  within  a  reasonable 
time  after  the  giving  of  such  notice  to  re- 
pair or  remove  the  defect,  danger  or  obstruc- 
tion complained  of.  All  actions  against  the 
city  of  Saginaw  shall  be  commenced  in  and 
trial  had  in  the  circuit  court  for  the  county 
of  Saginaw."  Act  No.  560,  p.  751,  Loc.  Acts 
1905,  tit  24,  §  24. 

There  is  no  allegation  in  the  declaration 
that  any  written  notice  of  the  defective  con- 
dition of  the  sidewalk  was  given  to  the 
board  of  public  works.  Defendant  demur- 
red to  the  declaration,  and  the  only  ground 
of  demurrer  to  which  the  attention  of  this 
court  is  directed  is  the  failure  to  aver  the 
giving  of  such  notice.  The  demurrer  was 
sustained.  It  is  said  in  the  brief  for  appel- 
lant that,  inasmuch  as  the  fact  that  the  de- 
fendant had  knowledge  of  the  condition  of 
this  sidewalk  is  alleged,  there  is  no  neces- 
sity for  setting  out  in  the  declaration  the 
evidence  relied  upon  to  prove  such  knowl- 
edge. It  is  evident  however,  that  decision 
in  the  court  below  did  not  turn  upon  a  mere 
question  of  pleading.  The  arguments  pre- 
sented involve  both  the  construction  and  th« 


•Fur  othsr  esses  SM  lams  topic  and  ssctloa  NUMBEB  ia  Dao.  *  Am.  Olgi.  1907  to  dats,  *  Reporter  Isdexos 


Digitized  by  VjOOQ  l€ 


524 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


validity  of  the  charter  provision.  It  Is  said 
that,  properly  construed,  It  would  have  no 
application  to  cases  where  the  city  Itself 
created  a  dangerous  condition  of  the  high- 
ways; that  In  many  cases,  as  where  an  Im- 
provement was  carried  on  by  the  city  Itself, 
and  a  dangerous  condition  of  the  highways 
left  unguarded  overnight,  the  city  would  en- 
tirely escape  liability  to  one  Injured  during 
the  night.  The  reasoning  employed  is  that, 
as  in  such  a  case  notice  would  add  nothing 
to  the  linowledge  possessed  by  the  city  au- 
thorities, so  it  would  add  nothing,  and 
should  not  be  required,  In  any  case  where 
the  city  bad  actual  knowledge  of  the  defec- 
tive condition  of  the  streets.  Assuming  that 
the  words  employed  In  the  charter  cover 
every  case  of  dangerous  and  unsafe  condi- 
tion of  the  highways,  however  created,  we 
are  not  now  required  to  determine  whether 
the  Legislature  may  thus  limit  the  common- 
law  liability  of  a  city  to  respond  in  dam- 
ages to  one  injured  because  of  its  acts  of 
misfeasance.  The  case  made  hv  the  declara- 
tion is  one  of  nonfeasance,  of  neglect  to  keep 
a  sidewalk  In  repair.  In  such  a  case  lia- 
bility on  the  p'art  of  the  city  is  created  by 
statute.  C!omp.  Laws,  H  3441-3445.  The 
charter  provision  Is  construed  as  applying  to 
all  cases  of  civil  action  arising  under  the 
general  statute  above  referred  to.  Beyond 
this  we  have  no  occasion  to  go. 

The  question  presented,  then,  is  one  of 
legislative  power.  The  general  statute 
which  has  been  referred  to  applies,  in  terms, 
to  all  cities.  It  Is  assumed  upon  abundant 
authority  that,  notwithstanding  the  general 
law,  the  Legislature  had  power  to  dispose 
of  this  whole  subject  by  a  local  act  applica- 
ble to  the  particular  community.  In  Mac- 
Inm  V.  City  of  Marquette,  148  Mich.  480,  111 
N.  W.  1079,  the  charter  which  was  consid- 
ered provided  that  the  city  should  never  be 
liable  for  any  damages  sustained  by  any 
person  in  consequence  of  the  ueglect  of  any 
person  to  keep  sidewalks  clear  of  snow,  ice, 
dirt,  wood,  or  other  obstruction.  The  char- 
ter was  enacted  in  1871.  At  that  time  there 
was  no  statute  imposition  upon  cities  of  any 
duty  in  the  premises,  and  the  law  of  the 
state  denied  liability  for  mere  neglect  to 
keep  highways  in  safe  condition  for  public 
travel.  If  one  may  Indulge  conjecture,  I 
should  say  that  the  provision  was  Inserted 
in  the  charter  to  save  municipal  responsi- 
bility to  citizens  who  for  any  reason  were 
permitted  to  bring  their  action  for  Injuries 
in  the  federal  courts.  Later  our  general 
statute  was  enactecl.  It  was  held  that  the 
general  law  did  not  repeal  the  charter  pro- 
vision. It  resulted  that  in  the  city  of  Mar- 
quette the  special  local  act  was  controlling 
of  the  subject  to  which  it  was  addressed. 
Beyond  that  the  general  statute  was  opera- 
tive and  controlling.  It  has  also  been  re- 
peatedly determined  that  charter  provisions 


which  bar  the  statute  right  to  a  recovery  for 
injuries  because  of  a  failure,  after  the  fact 
of  injury,  to  give  a  prescribed  notice  or  no- 
tices to  the  municipal  authorities  are  valid. 
The  charter  of  Saginaw  recognizes  the  ex- 
istence of  the  general  law.  It  recognizes 
the  duty  Imposed  by  general  law  to  keep 
highways  in  repair.  It  limits  the  liability 
of  the  municipality,  and  therefore  the  right 
of  the  citizen,  under  the  general  law.  The 
legislative  purpose  is  clear.  Under  the  gen- 
eral law  liability  exists  when,  and  only 
when,  it  is  shown  that  the  city  has  had  rea- 
sonable time  and  opportunity  after  knowl- 
edge or  notice  of  the  defect  to  repair  It,  and 
has  not  used  reasonable  diligence  therein 
after  such  knowledge  or  notice.  Under  the 
charter  written  notice  of  the  defective  con- 
dition of  the  highway  must  be  given  to  the 
board  of  public  works,  and  thereafter  un- 
reasonable delay  in  repairing  must  occur, 
or  else  there  is  no  liability.  Upon  principle 
I  am  not  able  to  distinguish  the  case  pre- 
sented and  Maclam  v.  City  of  Marquette.  If 
the  provisions  of  the  charter  and  of  the 
general  law  may  stand  together  in  one  case, 
there  Is  no  good  reason  why  they  may  not  In 
the  other  case. 

The  order  sustaining  the  demurrer  is  af- 
firmed. 


GERMAIN  ▼.  UNION  SCHOOL  DIST.  OP 
CITY  OF  STANTON. 

(Supreme  Court  of  Michigan.     Sept  21,  1909.) 

1.  CONTBACTB  (§  284*)— Building  Contracts 
— Necessity  fob  Abchitect's  Finai,  Esti- 
mate. 

Where  a  contTa,ct  for  erection  of  a  school- 
house  provided  that,  if  the  architects  were  dis- 
charged, the  school  board  should  act  in  their 
place,  and  the  architects  were  discharged  sev- 
eral months  before  the  contractor  sued  to  re- 
cover on  his  contract,  he  was  not  required  to 
demand  his  final  estimate  from  the  architects 
or  explain  its  absence. 

[Ed.   Note. — For  other  cases,  see  Cmitracts, 
Dec.  Dig.  {  284.»] 

2.  Evidence  (§  213*)— Admissions— Offeb  of 
Compromise. 

It  was  error  to  admit  as  an  exhibit  an  offer 
of  defendant  to  pay  plaintiff  a  certain  amount 
in.  settlement  of  his  claim ;  it  being  an  offer  of 
compromise. 

[Ed.    Note.— For   other   cases,    see    Evidence, 
Cent  Dig.  §§  745-751 ;   Dec.  Dig.  S  213.*] 

3.  contbacts  (j  319»)— bun-dino  contbactb 
—Breach— Measube  of  Damages. 

In  an  action  by  a  contractor  on  his  con- 
tract to  build  a  schoolhouse,  a  charge  that  if 
plaintiff  failed  to  live  up  to  the  terms  of  the 
contract,  and  the  building  furnished  was  not 
such  as  was  contracted  for,  the  jury  should  de- 
duct from  his  claim  such  a  sum  as  to  make  it 
such  a  building  as  he  contracted  to  furnish  in 
value,  or,  in  other  words,  should  require  him  to 
pay  for  doing  what  he  ought  to  have  done  and 
which  the  school  board  had  to  do  to  complete 
the  building,  and  also  such  sum  as  to  make  it 
as  good  as  it  would  have  l)een  under  the  terms 
of  the  contract  had  it  been  complied  with,  was 
erroneous,    as   assuming    that   all    plaintiff   was 


•For  other  cosea  «ee  same  topic  and  section  NUMBER  In  Dec.  *  Am.  Diss.  1907  to  date,  t  Reporter  lodexei 


Digitized  by  VjOOQ  l€ 


Mich.) 


GERMAIN  V.  UNION  SCHOOL  DI8T. 


525 


bound  to  do  was  to  furnish  a  building  worth 
the  contract  price,  whereas  he  was  bound  to 
furnish  a  building  according  to  the  plans  and 
specifications,  though  it  cost  more  than  the 
contract  price. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent  Dig.  U  1498-1507 ;    Dec.  Dig.  S  319.»] 

4.  Work  and  Labob  (g{  14,  2&*)— Botlding 
CoNTBACTs  —  Damages  —  Nonappobtion- 

ABU:  CONTBACT. 

Where  a  building  contract  is  nonapportion- 
able,  and  the  contractor  does  not  complete  the 
building,  his  recovery  must  be  upon  the  quan- 
tum meruit,  and  his  measure  of  damages  would 
be  the  reasonable  value  of  the  building  as  talcen 
I>088ession  of  by  the  other  party  to  the  contract) 
cot  exceeding  the  contract  price  and  the  value 
of  the  extras,  lesa  what  it  would  reasonably 
cost  to  complete  it  and  make  it  comply  with  tlw 
contract  and  specifications. 

(Ed.  Note.— For  other  cases,  see  Work  and  Ia- 
bor,  Cent.  Dig.  {{  31-83,  5G-5S;   Dec  Dig.  {§ 

Error  to  Circuit  Court,  Montcalm  Coun- 
ty;   Frederick  W.  Mayne,  Judge. 

Action  by  George  F.  Germain  against  the 
Union  Seliool  District  of  the  City  of  Stanton. 
Judgment  for  plaintiff,  and  defendant  brings 
error.     Reversed,  and  new  trial  ordered. 

Argued  before  BLAIR,  C.  J.,  and 
GRANT,  MONTGOMERY,  McALVAY,  and 
BROOKE,  JJ. 

F.  A.  Miller  and  R.  A.  Hawley,  for  appel- 
lant   John  J.  Zimmer,  for  appellee. 

BROOKE,  J.  On  September  26,  1905, 
plaintiff  entered  into  a  written  contract  with 
defendant  to  erect  a  large  school  building  for 
the  sum  of  $15,820.  The  building  by  the 
terms  of  the  contract  was  to  have  been  com- 
pleted on  or  before  August  1,  1906,  provided 
that,  "in  case  any  delay  shall  arise  from 
•  •  *  any  strike  in  building  trade  or  other 
cause  clearly  beyond  control  of  the  said  par- 
ty of  the  first  part,  •  •  •  the  penalty 
hereinafter  provided  for  and  to  be  incurred' 
for  not  finishing  said  building  on  or  before 
the  first  day  of  August,  1906,  shall  not  be 
forfeited  or'become  payable  by  the  said  par- 
ty of  the  first  part"  Many  disputes  arose 
between  the  plaintiff  and  the  defendant  or 
its  architects.  White  &  Hussey.  The  glass 
was  condemned  by  the  architects,  was  re- 
placed, and  was  again  in  part  condemned.  A 
very  large  number  of  defects  was  pointed 
out  by  the  architects  after  the  plaintiff 
claimed  to  have  fultiUed  his  contract,  and  he 
was  ordered  to  remedy  them.  This  he  never 
fuUy  did.  On  August  8,  1906,  the  architects 
Inspected  the  school  building,  and  reported 
that  It  was  not  ready  for  acceptance,  and  so 
notified  plaintiff  by  letter  of  that  date.  On 
August  24th  the  architect  served  upon  the 
plaintiff  a  notice  from  the  school  board  to 
complete  the  job  within  10  days.  On  Septem 
ber  4th,  the  building  not  having  been  com' 
pleted  by  the  plaintiff,  the  school  board  took 
possession  of  It  and  proceeded  to  complete 
it.    On  September  10th  the  architects  wrote 


a  letter  to  the  plaintiff  granting  him  an  ex- 
tension of  time  of  11  days  from  that  date. 
On  the  same  day  the  plaintiff  went  to  Stan- 
ton and  found  the  school  board  in  possession, 
which  it  refused  to  surrender  to  plaintiff. 
On  September  13tb  the  board  discharged 
White  &  Hussey  as  arcUtects,  and  upon  tlie 
same  day  plaintiff  brought  suit  in  chancery 
against  defendant,  praying  for  an  injunction 
against  defendant  restraining  it  from  Inter- 
fering with  him  in  the  completion  of  said 
building.  An  answer  and  cross-bill  was  fil- 
ed by  defendant,  and  upon  consideration 
thereof,  together  with  affidavits  thereto  at- 
tached, the  court  found  that  the  defendant 
"was  In  possession  of  the  school  bu'.ldlng, 
constructed  by  complainant,  for  the  purpose 
of  completing  amendments  thereto,  accord- 
ing to  the  judgment  of  the  architects,  after 
the  default  of  the  complainant  In  making 
such  amendments,  and  was  rightfully  in  pos- 
session under  the  terms  of  its  contract" 
The  complainant's  prayer  for  Injunction  was 
denied.  The  school  board  thereupon  proceed- 
ed to  complete  the. building  in  some  respects 
at  a  cost  of  $777.29,  but  still  claim  that  the 
building  is  in  many  respects  faulty,  and  not 
up  to  the  contract  and  specifications.  After 
negotiations  for  an  adjustment  had  failed, 
plaintiff  brought  this  suit  against  the  defend- 
ant, which  resulted  In  a  verdict  and  Judg- 
ment in  his  favor  for  $3,004.17.  Defendant 
brings  the  case  to  this  court  by  writ  of  er- 
ror. 

There  are  a  great  many  assignments  of 
error,  only  a  few  of  which  will  be  consider- 
ed. It  Is  claimed  by  defendant  that  no  tes- 
timony on  the  part  of  the  plaintiff  should 
have  been  received  because  of  the  fact  that 
the  plaintiff  never  received  his  final  estimate 
from  the  architects  or  the  school  board,  and 
neiiher  alleged  nor  proved  that  the  same  was 
fraudulently  withheld  from  him.  In  sup- 
port of  this  position  defendant  cites  Hanley 
V.  Walker,  79  Mich.  607,  45  N.  W.  57,  8  L.  R. . 
A.  207,  and  other  cases.  We  are  of  the  opin- 
ion that  all  the  cases  cited  upon  this  propo- 
sition are  clearly  distinguishable  from  the 
case  at  bar.  As  already  pointed  out,  the  de- 
fendant discharged  the  architects  on  Septem- 
ber 13,  1906,  several  months  before  the  plain- 
tiff instituted  this  suit  It  is  obvious  that 
thereafter  the  plaintiff  was  under  no  obliga- 
tion -to  demand  his  final  estimate  from  them, 
and,  had  It  been  demanded,  the  architects 
could  not  have  furnished  It  During  the 
time  elapsing  between  the  discharge  of  the 
architects  and  the  commencement  of  suit 
many  demands  were  made  by  the  plaintiff 
upon  the  defendant  for  payment  of  the  bal- 
ance he  claimed  to  be  due  which  were  by  the 
defendant  refused.  The  contract  provided 
that,  in  case  the  architects  were  discharged, 
the  school  board  Itself  should  act  in  the 
place  and  stead  of  the  architects.  Under 
these  circumstances,  we  hold  that  the  plaln- 


•For  other  caa««  see  same  topic  and  section  NUMBER  In  Deo.  *  Am.  Digs.  1807  to  date,  ft  Reporter  Indexei 


Digitized  by  LjOOQIC 


626 


122  NORTHWESTERN  KErOUTEK, 


lAIlclL 


tUTB  failure  to  produce  the  architects'  flaal 
estimate  or  explain  Its  absence  was  of  no 
consequence.  The  controversy  was  upon  Its 
face  SQuarely  between  plaintiff  and  defend- 
ant at  the  time  suit  was  brought;  the  de- 
fendant at  that  time  being  clothed  with  all 
the  rights  and  duties  of  the  architects.  Tes- 
timony was  properly  admitted. 

Error  is  assigned  upon  the  admission  of 
Exhibit  No.  24,  which  was  an  offer  on  the 
part  of  the  defendant  to  pay  to  plaintiff 
$750  in  settlement  of  bis  claim.  The  exhib- 
it was  admitted  over  the  specific  objection 
on  the  part  of  the  defendant  that  It  contain- 
ed an  ofTer  of  compromise  and  was  for  that 
reason  Incompetent.  The  court  remarked 
that  the  offer  made  In  the  exhibit  was  not 
binding  on  the  defendant,  but  failed  to  state 
that  It  was  not  an  admission  of  liability.  It 
should  have  been  excluded.  Montgomery  ▼. 
Allen,  84  Mich.  656,  48  N.  W.  153. 

Error  Is  assigned  upon  that  portion  of 
the  charge  of  the  court  covering  the  measure 
of  damages,  which  was  in  part  as  follows: 
"The  plaintiff  claims  $3,Q56.  If  you  find  that 
he  has  failed  to  live  up  to  the  terms  of  the 
contract,  that  the  building  which  he  has  fur- 
nished is  not  such  a  building  as  was  con- 
tracted for,  then  you  will  deduct  from  this 
claim  of  the  plaintiff  such  sum  as  will  make 
It  such  a  building  as  he  contracted  to  fur- 
nish in  value.  In  other  words,  you  will 
require  him  to  do  those  things  which  he 
ought  to  have  done  under  the  terms  of  the 
contract  Not  having  done  the  same,  yon 
will  require  him  to  pay  the  board  for  doing 
those  things  which  he  ought  to  have  done, 
and  which  they  had  to  do  In  order  to  com- 
plete the  building,  and  also  such  sum  as  will 
make  the  building  as  good  as  it  would  have 
been  under  the  terms  of  the  contract  bad 
it  been  complied  with."  The  vice  of  this  In- 
struction is  that  It  assumes  that  all  the- 
plaintiff  was  bound  to  do  was  to  furnish  a 
building  worth  the  contract  price,  whereas 
he  was  bound  to  furnish  a  building  according 
to  the  plans  and  specifications,  even  though 
It  were  worth  many  hundreds  of  dollars 
more  than  the  contract  price.  Where  a 
contract  Is  nonapportionable  as  this  one  is, 
and  the  plaintiff  does  not  complete  as  this 
plaintiff  did  not,  his  recovery  must  be  upon 
the  quantum  meruit.  His  measure  of  dam- 
ages would  be  the  reasonable  value  af  the 
building  as  defendant  took  possession  of  It, 
not  exceeding  the  contract  price  and  the 
value  of  the  extras,  less  what  It  would  rea- 
sonably cost  to  complete  it  and  make  it  com- 
ply with  the  contract  and  specifications. 
Eaton  r.  Gladwell,  121  Mich.  444,  80  N.  W. 
292,  and  cases  cited. 

Many  other  errors  are  assigned,  but  they 
are  not  discussed,  as  they  are  not  likely  to 
arise  upon  another  trial. 

Judgment  reversed,  and  a  new  trial  or- 
dered. 


RUMSET  T.  FOX  et  aL 
(Supreme  Court  of  Michigan.     Sept  21,  1909.) 

1.  Saues   (I    347*)— Action    fob    Pbicb— Dk- 

FBNSES— FBA.UD. 

Parties  to  a  contract  for  the  purchase  of 
personalty  who  never  attempted  to  rescind  the 
contract  cannot,  when  sued  on  the  notes  for  th« 
price,  question  the  validity  of  the  contract  on 
the  ground  of  fraud. 

[Ed.  Note. — For  other  cases,  see  Sales,  Cent 
Dig.  §  971;    Dec.  Dig.  f  347.*] 

2.  Appeal  and  Erbob  (j  927*)— Judgment  oh 
DiBECTED  Vebdict— Review. 

The  Supreme  Court  reviewing  a  judgment 
on  a  directed  verdict  for  defendant  cannot  con- 
sider the  oral  testimony  of  defendant  where  the 
testimony  of  plaintilf  contradicts  it,  but  must 
take  the  testimony  of  plaintiff  as  true. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  3748 ;  Dec.  Dig.  i  927.*] 

3.  Bills  and  Notes  (|  120*)— Joint  ahd  Sev- 

EBAL    LTABILITT. 

Individuals  signed  a  subscription  paper,  re- 
citing that  they  agreed  to  take  the  amount  of 
stock  set  opposite  their  respective  names  for  the 
purchase  of  a  horse  for  a  speciGed  sum,  and 
agreed  to  Rive  their  joint  notes  in  payment 
therefor.  Subsequently  the  subscribers  met  and 
signed  and  delivered  joint  and  several  notes  in 

Sayment.  They  formed  an  association  to  con- 
uct  their  business  in  relation  to  the  horse  in 
accordance  with  a  plan  proposed  by  the  seller, 
who  delivered  to  each  subscriber  a  stock  cer- 
tificate certifying  that  the  subscriber  was  the 
owner  of  a  share  in  the  horse.  Held,  that  the 
subscribers  were  jointly  and  severally  liable  on 
the,  notes. 

[Ed.  Note. — For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  S  257;    Dec  Dig.  {  120.*] 

4.  Evidence  (§  402*)  —  Pabol  Evidbnob  — 
Varying  Notes. 

An  unambiguous  note  cannot  be  altered  by 
parol. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  |  1799;    Dec  Dig.  §  402.*] 

8.  Tbial  ({  143*)— DiBEonoN  of  Vibdict— 

When  Authobized. 

Where  the  testimony  on  an  issue  was  in 
conflict,  it  was  improper  for  the  court  to  direct 
a  verdict. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  81  342,  343;    Dec.  Dig.  §  K3.*] 

6.  Release  ({  28*)— Opebation— Joint  Dkbt- 

OBS. 

A  seller  of  a  horse  to  buyers  who  agreed  to 
take  a  specified  amount  of  stock  for  the  pur- 
chase of  the  horse  and  who  executed  notes  for 
the  price  executed  an  instrument  reciting  that, 
in  consideration  of  one  of  the  buyers  taking  a 
share  in  the  horse,  the  seller  would  agree  to 
hold  him  responsible  only  for  his  one  share.  The 
instrument  was  delivered  to  such  buyer  after  he 
had  signed  the  notes,  and  he  subsequently  in- 
formed his  associates  thereof.  Held,  that  the 
instrument,  treated  as  a  release,  did  not  dis- 
charge the  full  obligation  of  the  buyers. 

[Ed.  Note.— For  other  cases,  see  Release,  Cent 
Dig.  i  57;    Dec.  Dig.  §  28.*] 

Error  to  Circuit  Court,  Ionia  County; 
Frank  D.  M.  Davis,  Judge. 

Action  by  Chauncey  J.  Rumsey  against 
John  P.  Fox  and  others.  There  was  a  Judg- 
ment for  defendants,  and  plaintiff  brings  er- 
ror.   Reversed,  and  new  trial  ordered. 


•For  other  cuw  s««  muss  topie  and  section  NUllBER  la  Doc.  ft  Am.  Digs.  1M7  to  date,  *  fiaportw  IndexM 


Digitized  by 


Google 


MlcbJ 


RUMSEY  V.  POX. 


527 


Argued   before   OSTBANDER,    HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

A.  A.  &  H.  A.  Ellis,  for  appelltint    Royal 
A.  Hawley,  for  appellees. 

HOOKER,  J.  The  defendants  are  farmers 
who  united  In  the  purchase  of  a  horse  from 
J.  Crouch  &  Son,  of  Indiana,  who  advertise 
to  be  Importers  of  horsea  An  agent  of  this 
firm  came  to  the  neighborhood  In  which  de- 
fendants lived,  and  circulated  a  subscription 
paper,  at  the  same  time  exhibiting  the  horse. 
The  paper  which  was  signed  by  most  of  the 
defendants  was  as  follows:  "We,  the  under- 
signed, recognizing  the  necessity  of  improving 
the  stock  of  our  country,. do  hereby  agree  to 
take  the  amonnt  of  stock  set  opposite  our 
respective  names,  for  the  purpose  of  purchas- 
ing the  Imported  German  Coach  Stallion 
Eglnhart,  III,  No.  1983,  now  being  sold  in 
Pewamo,  Michigan,  by  J.  Crouch  &  Son,  of 
Lafayette,  Indiana,  for  the  sum  of  $2,600,  in 
shares  of  f200  each,  and  agree  to  give  our 
Joint  notes  in  payment  for  the  said  stallion, 
due  as  follows:  $600  due  October  1,  1904, 
$1,000  due  October  1, 1905;  $1,000  due  October 
1,  1906,  with  Interest  at  the  rate  of  six  per 
cent  per  annum  from  date  of  the  notes  or 
cash  within  two  days  after  the  stock  Is  sold." 
Subsequently  a  meeting  of  the  subscribers 
was  held,  and  the  notes  now  in  suit  were 
signed  and  delivered,  and  then  or  at  a  8ul>- 
sequent  meeting  an  association  was  formed 
by  the  defendants  to  conduct  their  business 
In  relation  to  the  horse  in  accordance  with 
a  plan  proposed  by  Crouch  &  Son,  or  their 
agents,  and  a  paper  called  a  stock  certif- 
icate was  given  to  each  subscriber,  In  the 
following  form:  "Capital  stock,  $2,600;  No. 
6,  number  of  shares  13.  This  Is  to  certify 
that  Henry  A.  Souder  is  the  owner  of  one 
share  of  $200  In  the  German  Coach  Stallion 
named  E^nhart  No.  1983.  Dated  Pewamo, 
county  of  Ionia,  State  of  Michigan,  this  29th 
day  of  June,  1903.  J.  Crouch  &  Son."  The 
subscription  paper  dropped  out  of  sight  after 
the  giving  of  the  notes,  apparently  being  con- 
sidered by  all  as  a  preliminary  paper.  The 
notes  were  sold  to  the  plaiutlil  soon  after 
they  were  taken,  but  It  is  not  claimed  that 
be  was  a  bona  fide  purchaser  without  notice. 
The  defendants  received  the  horse  and  kept 
him  for  a  year  or  more,  when  he  was  at- 
tached and  sold  on  execution  to  pay  a  debt 
of  the  association.  This  action  was  brought 
upon  the  notes.  The  defendants  pleaded  the 
general  Issue,  and  a  few  of  them  gave  no- 
tice of  special  defences,  and  all  claimed  that 
the  contract  between  the  parties  was  several, 
and  not  Joint  To  maintain  this  it  was  claim- 
ed first  that  all  of  the  papers — i.  e.,  the  sub- 
scription, the  notes,  and  the  certificates  of 
stock — should  be  taken  together,  and  that 
they  Justify  the  construction  that  the  notes 
were  several,  binding  each  signer  for  the 
amonnt  of  his  subscription  only,  and,  if  this 
were  not  so,  the  testimony  given  of  repre- 


sentations that  the  parties  signij^  the  notes 
were  bound  only  for  the  amount  of  the  stock 
subscribed  should  be  considered  In  determin- 
ing the  construction.  There  was  also  a  claim 
of  fraud  (1)  in  regard  to  representations  re- 
garding the  attributes  of  the  horse;  (2)  re- 
garding the  pecuniary  responsibility  of  the 
persons  whom  Crouch  &  Son  would  accept 
as  subscribers;  (3)  the  giving  of  a  release 
(so-called)  by  Crouch  &  Son  to  one  of  the  de- 
fendants, agreeing  not  to  hold  him  respon- 
sible for  more  than  the  amount  of  his  share. 
The  Instrument  reads  as  follows:  "Pewamo, 
Mich.,  July  31/03.  In  consideration  of  O.  G. 
Burns  taking  one  $200  share  In  the  German 
Coach  Stallion  sold  at  Pewamo  Mich.,  we 
agree  to  only  hold  him  responsible  for  his 
one  share  of  $200.  [Signed]  J.  Crouch  & 
Son."  This  was  delivered  to  Burns  after 
he  signed  the  note.  He  Informed  his  asso- 
ciates of  the  fact  some  five  months  later. 
Bums  was  the  last  shareholder  they  secured. 
We  understand  that  the  subscription  paper 
was  not  presented  to  him,  and  that  he  did 
not  sign  It  also  that  several  persons  who 
signed  the  subscription  were  not  acceptable, 
and  were  discarded  either  at  the  suggestion 
of  one  or  another  of  the  defendants  or  Crouch 
&  Son.  We  should  add  that  the  questions  of 
fraudulent  represents tlpn  were  all  disputed 
questions  of  fact,  except  as  relates  to  the  re- 
lease to  Bums,  which  rests  upon  his  uncon- 
tradicted testimony.  Each  party  claimed  the 
right  to  an  instructed  verdict.  The  learned 
circuit  Judge  said  to  the  Jury:  "Both  coun- 
sel, the  counsel  representing  both  sides,  agree 
it  Is  for  the  court  in  this  case  to  constrae 
the  meaning  and  effect  of  the  writings  that 
have  been  brought  into  this  case.  It  is  not 
within  the  province  of  the  court  to  pass  upon 
any  oral  testimony  except  where  It  Is  ad- 
mitted or  undisputed.  The  question  for  the 
court  to  determine  In  this  case,  the  principal 
question,  is  to  decide  whether  these  papers- 
are  the  joint  and  several  undertaking  of  the 
parties  who  have  been  brought  in  here  as 
defendants,  or  whether  they  are  simply  rep- 
resenting the  several  Indebtedness  of  each  of 
them;  they  having  all  signed  these  papers. 
In  order  to  determine  this  question,  it  be- 
comes necessary  to  examine  the  different 
papers  that  are  brought  into  the  case.  It 
seems  there  was  a  general  plan  or  scheme  on 
the  part  of  the  plaintiff  and  also  on  the 
part  of  the  defendant  or  defendants  when 
they  were  bringing  about  the  arrangement 
that  culminated  in  the  giving  of  these  papers. 
Crouch  &  Son— when  I  say  plaintiff,  I  should 
have  said  Crouch  &  Son,  as  the  plaintiff 
really  represents  them — had  a  horse  they 
wanted  to  sell  In  that  vicinity,  and  had 
men  employed  to  work  among  the  farmers 
for  the  purpose  of  engaging  their  attention 
and  directing  their  attention  to  this  particu- 
lar horse,  and  Interesting  themselves  in  this 
horse  as  being  valuable  for  stock  purposes, 
and    their   proposition   to   the   farmers   in 


Digitized  by 


Google 


5^8 


122  NORTHWESTERN  REPORTER. 


(Mich. 


that  vlclnllf  was  to  sell  this  horse  for  $2,600 
and  to  divide  the  $2,600  the  value  of  the 
horse  Into— rather  to  divide  the  value  of  the 
horse  into  thirteen  shares,  each  to  be  sold 
for  $200.  Some  of  the  parties  not  feeling 
able  to  buy  a  full  share,  it  was  agreed  upon 
and  understood  they  could  buy  one-half  a 
share  for  $100  each.  In  connection  with 
this  I  find  a  certificate  of  stock  was  Issued 
to  some  of  these  men,  which  reads:  'Certif- 
icate of  stock.  This  is  to  certify  that  Henry 
Souder  (for  instance)  is  the  owner  of  one 
share  of  two  hundred  dollars  in  the  German 
Coach  Stallion  named  Eglnhart  No.  1983,' 
etc.  'June  29,  1903.  J.  Crouch  &  Son.'  I 
find  in  addition  to  that  a  snl>3crlption  list. 
I  am  now  talking  about  the  subscription  list 
that  it  is  claimed  on  the  part  of  the  plaintiff 
was  entered  into.  There  is  a  dispute  upon 
the  proposition.  The  defendants  claim  there 
was  no  beading  to  the  paper  upon  which 
their  names  were  either  placed  by  themselves 
or  by  the  agent  of  Crouch  &  Son,  but  for 
the  purpose  of  disposing  of  this  motion  the 
plaintiff  is  entitled  to  have  It  considered. 
The  subscription  list  they  have  offered  in 
this  case  reads :  'We,  the  undersigned,  real- 
izing the  necessity  of  improving  the  stock 
of  our  country,  do  hereby  agree  to  take  the 
amount  of  stock  set  opposite  onr  respective 
names  for  the  purpose  of  purchasing  the 
imported  German  Coach  Stallion  Eglnhart 
III  No.  1983,  now  being  sold  at  Pewamo, 
Michigan,  by  J.  Crouch  &  Son,  of  I/afayette, 
Indiana,  for  the  sum  of  $2,609  in  shares  of 
$200  each,  and  we  agree  to  give  our  Joint 
notes  in  payment  for  said  stallion,  due  as 
follows:  First  note,  October  1,  1904  (that  I 
believe  was  changed  as  shown  by  the  testi- 
mony the  notes  were  dated  a  different  time), 
with  interest  at  the  rate  of  six  per  cent 
per  annum,'  etc.  In  addition  to  that  and 
prior  to  the  operation  of  these  so-called 
notes,  and  before  it  was  put  into  circulation 
by  being  delivered,  I  find  this  paper :  'Pewa- 
mo, Michigan,  July  31,  1903.  In  considera- 
tion of  O.  C.  Burns  taking  one  $200  share 
in  the  German  Coach  Stallion  sold  at  Pewa- 
mo, Michigan,  we  agree  only  to  hold  him 
responsible  for  his  one  share  of  $200.  J. 
Crouch  &  Son.'  These  were  the  papers  In- 
cluded in  the  transaction  and  the  scheme  on 
the  part  of  Crouch  &  Son  was  to  dispose  of 
this  horse  for  $2,600.  Under  the  undisputed 
testimony  as  claimed  by  the  plaintiff,  It  was 
to  be  divided  into  these  13  respective  shares 
and  sold  to  the  various  farmers.  From  this 
certificate  it  appears  what  the  intention  was 
on  the  part  of  Crouch  &  Son  to  give  to  the 
party  that  paid  $200  one  share  or  one-thir- 
teenth part  of  the  horse.  The  scheme  or 
plan  on  the  part  of  the  defendants  was  to 
purchase  this  horse  for  $2,600  and  become 
responsible  for  $200  as  evidenced  by  the  ac- 
ceptance of  the  paper  itself,  receiving  that 
paper  and  according  to  the  undisputed  testi- 
mony, and  putting  their  names  down  and 
giving  the  number  of  shares  and  value.    In 


addition  to  that,  there  was  a  bargain  made 
in  writing  according  to  the  testimony  of  the 
plaintiff,  and,  according  to  this  paper,  that 
a  joint  note  should  be  given.  Now,  in  the 
Judgment  of  the  court,  these  papers,  so-call- 
ed notes,  were  not  the  Joint  and  several  un- 
derstanding of  these  defendants  at  the  time 
this  suit  was  brought  Mr.  Crouch  released 
Burns,  one  of  the  makers,  and  had  changed 
the  relations  of  all  the  parties,  had  released 
•one  from  his  liability  if  it  was  ever  a  Joint 
note,  or,  if  intended  by  the  parties  to  be  so, 
they  had  changed  it  voluntarily,  and  should 
find  no  fault  if  the  defendants  desire  to  con- 
tinue the  same  relation  in  which  be  himself 
had  voluntarily  placed  them.  All  of  the  pa- 
pers taken  together  as  a  matter  of  law  ac- 
cording to  the  findings  make  and.  constitute 
this  as  a  several  understanding  on  the  part 
of  these  various  parties,  and  not  a  Joint  con- 
tract or  understanding  or  bargain.  Not  upon 
the  theory  the  defendants  are  to  avoid  or 
evade  the  payment  of  what  belongs  to  them, 
but  that  suit  should  have  been  brought 
against  each  of  J:hem,  and  not  against  all  of 
them  Jointly.  It  must  be  construed  these 
three  papers  are  simply  a  bargain  to  pay  for 
what  they  bought,  and  for  no  more,  and  not 
a  promise  on  the  part  of  each  one  to  pay 
$2,600  and  part  pay  Just  exactly  what  Crouch 
&  Son  certified  they  bought  and  what  they 
were  to  pay  in  the  certificate.  Therefore  the 
Jury  will  be  Instructed  to  return  a  verdict 
of  no  cause  of  action,  or  rather  for  the  de- 
fendants." A  verdict  in  accordance  with 
this  instruction  was  rendered,  Judgment  fol- 
lowed, and  plaintiffs  have  appealed. 

We  can  eliminate  some  of  the  questions 
discussed. 

(a)  The  defendants  cannot  on  this  record 
question  the  validity  of  the  contract  on  the 
groimd  of  fraud,  as  they  have  never  attempt- 
ed to  rescind  the  contract  Hodge  v.  Smith, 
130  Wis.  326,  110  N.  W.  194. 

(b)  We  cannot  consider  the  oral  testimony 
of  the  defendants  in  connection  with  the 
construction,  for  the  reasons  that  all  of  such 
testimony  is  disputed,  and  it  would  therefore 
be  a  question  to  be  submitted  to  the  Jury. 
We  must  take  the  testimony  of  the  plaintiff 
as  true. 

Coming  to  the  question  of  construction, 
we  are  constrained  to  say  that  there  is  noth- 
ing uncertain  in  the  language  used.  Upon 
the  face  of  the  subscription,  the  defendants 
.expressly  and  explicitly  agreed  to  give  their 
Joint  and  several  obligations  for  the  horse, 
and  while  standing  alone  it  was  not  a  con- 
tract, because  not  signed  by  Crouch  &  Son, 
It  was  a  step  in  the  proceeding  showing  the 
preliminary  understanding  upon  which  the 
horse  was  sold.  Had  it  been  signed  by  both 
parties  and  the  horse  delivered  under  It,  it 
woujd  have  created  an  obligation  on  each 
signer  to  sign  a  Joint  promissory  note  for 
the  full  purchase  price.  It  admits  of  but 
one  interpretation.     In  the  present  case  it 


Digitized  by  LjOOQIC 


Micb.) 


POLSOM  V.  STATE  VETERINARY  BOARD. 


£29 


dflea  not  appear  tbat  It  was  signed  by  Crouch 
&  Son,  but  it  Is  one  of  tbe  circumstances  of 
the  bargain  which  was  made  complete  by  the 
giving  of  the  notes  in  question  and  the  de- 
livery of  the  horse.  That  these  defendants 
gave  their  Joint  and  several  notes  in  pay- 
ment for  a  horse  which  was  then  or  subse- 
quently delivered  is  undispnted.  The  notes 
are  unambiguous  and  need  no  explanation. 
Such  instruments  cannot  be  altered  by  parol 
evidence.  Piano  Co.  v.  Ellis,  68  Mich.  101, 
35  N.  W.  841;  Seckler  v.  Fox,  51  Mich.  92, 
16  N.  W.  246;  Dunham  v.  Steele  Packing 
Co.,  100  Mich.  75,  58  N.  W.  627;  Cllne  v. 
Hubbard,  31  Mich.  237;  Jones  v.  Phelps,  5 
Mich.  218;  Spencer  v.  Bowen,  41  Mich.  149, 
1  N.  W.  959;  Johnson  v.  Cranage,  45  Mich. 
14,  7  N.  W.  188;  Baker  v.  Morehouse,  48 
Mich.  334.  12  N.  W.  170;  Cohen  v.  Jacko- 
bolce,  101  Mich.  409,  59  N.  W.  665;  Rough  v. 
Breitung,  117  Mich.  48,  75  N.  W.  147;  Sheley 
V.  Brooks,  114  Mich.  11,  72  N.  W.  37;  Bowlns 
v.  English,  138  Mich.  178,  101  N.  W.  204; 
McEwan  v.  Ortmer,  34  Mich.  325;  Kulen- 
kamp  V.  Groft,  71  Mich.  675,  40  N.  W.  57, 
1  L.  R.  A.  594,  15  Am.  St.  Rep.  283;  Taylor 
Co.  v.  Gorham,  87  Mich.  233,  49  N.  W.  486; 
Hutchinson  v.  Hutchinson,  102  Mich.  635,  61 
K  W.  60;    Phelps  v.  Abbott,  114  Mich.  88, 

72  N.  W.  3;  Bank  v,  Vaughn,'  115  Mich.  156, 

73  M.  W.  143;  First  St  Sav.  Bank  y.  Web- 
ster, 121  Mich,  149,  79  N.  W.  1068;  Cent 
Sav.  Bank  v.  O'Conner,  132  Micb.  578,  94 
N.  W.  11,  102  Am.  St  Rep.  433;  Id.,  139 
Mich.  82,  102  N.  W.  280.  From  the  fore- 
going authorities  it  seems  obvious  that  these 
Joint  and  several  notes  which  are  unam- 
biguous on  their  faces  are  not  subject  to  a 
different  construction  by  reason  of  any  parol 
evidence  In  the  case  tending  to  show  tbat 
the  parties  did  not  so  understand  them. 
Furthermore,  if  they  could  be  differently  con- 
strued In  the  light  of  such  testimony  and  the 
circumstance  (which  we  do  not  Intend  to 
Imply),  such  testimony,  being  contradicted, 
made  it  improper  for  the  court  to  direct  a 
verdict  for  the  defendants.  Counsel  for  tbe 
defendants  have  cited  several  cases  which 
he  claims  to  be  authority  for  tbe  proposition 
that  on  the  face  of  this  contract  the  notes 
were  not  Joint  but  several.  Two  of  them  are 
decisions  of  this  court.  Davis  v.  Belford,  70 
Mich.  120,  37  N.  W.  919;  W.  W.  Scroper  Co. 
v.  Locklln,  100  Mich.  339,  58  N.  W.  1117.  Of 
these  cases  it  is  enough  to  say  that  in  each 
there  was  a  contract  signed  by  both  parties, 
and  suit  was  brought  upon  It  Neither  of 
these  indicated  a  Joint  liability,  and  in  each 
was  found  language  plainly  implying  an  un- 
derstanding that  the  liability  should  be  sev- 
eral and  fully  Justifying  such  a  cotastructlon. 
See,  also,  Davis  &  Rankin  Mfg.  Co.  v.  Mur- 
ray, 102  Mich.  219,  60  N.  W.  437;  B.vrne  v. 
Werner,  138  Mich.  330,  101  N.  W.  555,  69 
L.  R.  A.  000,  110  Am.  St   Rep.  315.     The 


same  may  be  said  of  most  of  the  other  cases 
cited  by  defendant's  counsel. 

There  Is  another  question  In  the  case.  It 
Is  urged  that  the  writing  given  by  Crouch  & 
Son  to  Burns  should  be  treated  as  a  release, 
and  that  for  that  reason  the  direction  was 
right  It  is  enough  to  say  of  this  that  If 
this  contention  Is  sound  (which  we  do  not 
decide),  It  did  not  discharge  the  full  obliga- 
tion. 

The  Judgment  Is  reversed,  and  a  new  trial 
ordered. 


FOIjSOM  t.  state  VETERINARY  BOARD. 
(Supreme  Court  of  Michigan.    Sept  21,  1909.) 

Physicians  anu  Subqeons  (S  4*)— Vetebi- 
NART  Surgeons— Reqistbation—Constkuc- 
TioN  OF  Statute. 

Under  Pub.  Acts  1907,  p.  315,  No.  244.  i 
5,  providing  that  no  person  shall  be  registered 
by  the  State  Veterinary  Board  as  a  vetprinarian 
or  veterinary  surgeon  without  satisfactory  proof 
thqX  he  is  the  lawfal  possessor  of  a  diploma 
fronP  a  resular  Veterinary  college  or  veterinai? 
denartment  of  a  state  institution  of  leamlDg,  or 
college  of  medicine  having  a  curriculom  of  at 
least  three  sessions  of  six  months  each,  etc.,  an 
applicant  must  have  personally  attended  such 
an  institution  and  completed  a  course  of  three 
sessions  of  six  months  each,  and  the  mere  fact 
that  at  the  time  he  received  his  diploma  from  a 
veterinary  college  it  had  adopted  a  course  of 
three  sessions  of  six  months  each  would  not 
qualify  him,  where  he  had  taken  only  tbe  form- 
er two  years'  course. 

[Ed.  Note.— For  other  cases,  see  Pbsrsicians 
and  Surgeons,  Cent  Dig.  }  4 ;  Dec.  Dig.  (  4.*] 

Mandamus  by  Edward  Q.  Folsom  against 
the  State  Veterinary  Board.    Writ  denied. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  McALVAY,  and  BROOKE, 
JJ, 

Silas  B.  Spier,  for  relator.  John  E.  Bird, 
Atty.  Gen.  (Arthur  P.  Hicks,  of  counsel),  for 
respondent 

McAI/VAY,  J,  Relator  asks  for  a  writ  of 
mandamus  to  compel  respondent  l>oard  to  reg- 
ister him  as  a  veterinary  surgeon  In  tblB 
state,  and  tbat  they  Issue  to  him  a  proper 
certificate  of  such  registration,  according  to 
law.  There  seems  to  be  no  dispute  as  to  the 
facts  presented  In  the  case.  Tbe  question  be- 
fore us  is  one  of  construction  of  the  statute 
under  which  relator  claims  he  is  entitled  to 
registration.  He  is  a  -  citizen  of  Michigan 
over  the  age  of  21  years,  and  has  presented 
to  the  board  a  diploma  Issued  direct  to  him 
by  the  "Ontario  Veterinary  College,  Ltd.,*' 
dated  April  4,  1908.  By  certain  exhibits  at- 
tached to  his  petition  it  appears  that  this  col- 
lege, in  October,  1807,  "adopted  a  course  of 
three  sessions  of  six  months  each,  and  that 
said  college  required  personal  attendance  of 
its  pupils."  It  also  appears  that  relator's 
diploma  was  issued  to  him  after  such  require- 
ments went  into  effect  The  relator  urges 
that  this  showing  entitles  him  to  registration 


•For  other  eases  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 
122X.W.— 04  ' 


Digitized  by 


L-oogle 


530 


122  NORTHWESTERN  REPORTER. 


(Micb. 


under  section  5,  Act  No.  244,  p.  315,  Pub. 
Acta  1907.  which  provides:  "•  •  •  No 
person  shall  be  registered  by  the  State  Veter- 
inary Board  as  a  veterinarian  or  veterinary 
surgeon,  until  he  shall  have  furnished  satis- 
factory proof  of  bis  Identity,  and  that  he  Is 
the  lawful  and  regular  possessor  of  a  diplo- 
ma from  a  regular  veterinary  college  or  vet- 
erinary department  of  a  state  Institution  of 
learning  or  college  of  medicine  having  a  cur- 
riculum of  at  least  three  sessions  of  six 
months  each,  and  that  said  diploma  was  Is- 
sued to  him  direct  •  •  •»•  Respondent 
board  answers  "that  relator  did  not  attend  or 
complete  a  course  of  three  sessions  each, 
*  *  *  and  that  tbls  relator  only  attended 
and  completed  the  two  years'  conrbe."  Re- 
lator does  not  dispute  the  truth  of  these  state- 
ments, and  makes  no  showing  by  his  petition 
that  he  personally  attended  and  completed  a 
coarse  of  three  years.  He  relies  entirely  up- 
on the  fact  that,  at  the  time  his  diploma  was 
granted  to  him  by  this  college,  Its  cufflcu- 
Inm  of  three  sessions  of  six  months  each  had 
been  adopted  and  was  In  force.  In  bis  brief 
he  says  that,  "because  of  said  enactment  In 
Michigan,  said  college  in  October,  1907,  chang- 
ed its  curriculum  so  that  Its  college  course 
was  of  three  sessions  of  six  months  pach. 
The  same  stxidles  were  required  in  the  two 
years'  course  as  were  required  In  the  three 
years'  course." 

The  legislative  Intent  In  raising  the  require- 
ments for  registration  was  obviously  for  the 
purpose  of  raising  the  standard  of  proficiency 
of  those  who  should  enter  upon  practice  as 
veterinarians  or  veterinary  surgeons.  Our 
construction  of  the  statute  is  that  it  requires 
of  the  applicant  i)erBonal  attendance  at  a 
reputable  institution,  and  the  completion  of 
a  course  of  three  sessions  of  six  months  each. 
The  action  of  this  institution  in  declaring  the 
courses  of  study  and  sessions  required  is  not 
controlling  in  this  case.  Respondent  board 
under  tbls  statute  must  find  that  an  appli- 
cant is  qualified  for  registration  according  to 
Its  requirements.  Relator's  construction  of 
this  law  would  nullify  the  express  Intent  of 
the  Legislature  to  raise  the  standard  of  eligi- 
bility for  registration.  The  action  of  respond- 
ent board  upon  the  application  presented  was 
Justified,  and  is  approved  by  tbls  court 

The  writ  Is  denied. 


ANKER  r.  SCHREIB  et  al. 

(Supreme  Court  of  Michigan.     Sept.  21,  1909.) 

JODOMENT  ({  682*)— Rbs  JUDICATA. 

A  decree  in  an  action'by  a  landowner,  com- 
menced In  1889,  to  set  aside  taxes  for  1885, 
rendered  after  proofs  taken  in  open  court  and 
after  argument  of  counsel  for  the  parties,  and 
providing  that  the  lien  of  the  taxes  should  con- 
tinue until  sale  of  the  land  thereunder,  could 
not  be  attacked  in  a  subsequent  action  brought 


by  the  grantee  of  the  owner  in  1899  to  set  asidt 
a  tax  deed  issued  in  1896  for  such  taxes  of  188S. 
[Ed.   Note.— For  other   cases,  see   Judgment 
Cent  Dig.  (  1203;   Dec  Dig.  |  682.*] 

Appeal  from  Circuit  Court  Ogemaw  Coun- 
ty, in  Chancery ;  Nelson  Sharpe,  Judge. 

Bill  by  Samuel  Anker  against  Charles  M. 
Scbrelb  and  others.  Decree  for  defendants, 
and  plaintiff  appeals.    Affirmed. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  MOORE,  and  McALVAY, 
JJ. 

William  T.  Yeo,  for  appellant  Bennett  & 
Moore  and  Foster  L.  Snodgrass,  for  appellee 
William  Barber.  E.  M.  Harris,  for  appellee 
Auditor  General. 

MOORE,  J.  In  January,  1898,  the  Auditor 
General  of  the  state  Issued  to  Charles  M. 
Schreib  a  tax  deed  for  the  unpaid  taxes  of 
1882,  1883,  1884,  and  1885.  He  also  Issued  to 
him  on  the  same  day  a  tax  deed  for  the  un- 
paid taxes  of  1886,  1890,  1892,  and  1893.  No- 
vember 14,  1899,  the  bill  in  this  case  was  filed 
to  have  the  two  deeds  declared  void.  No  lis 
pendens  was  filed.  Personal  service  was  had 
on  Mr.  Schreib.  His  default  was  taken  De- 
cember 19,  1899,  but  nothing  further  was 
then  done.  On  February  25,  1904,  Charles 
M.  Schreib  deeded  the  lands  by  quitclaim 
deed  to  William  Barber,  and  it  is  his  claim 
that  he  and  his  grantors  have  been  in  pos- 
session of  the  land  since  the  year  1900.  In 
October,  1907,  tbe  solicitor  for  complainant 
sought  to  place  the  case  on  the  calendar  for 
bearing  when  the  defendant  Barber  was  al- 
lowed to  file  an  answer.  An  answer  was  also 
filed  by  the  Auditor  General.  There  were 
other  proceedings  bad  which  It  Is  not  neces- 
sary to  recite  here.  The  cause  was  beard 
on  pleadings  and  proofs  taken  In  open  court 
The  bill  of  complaint  was  dismissed,  and  the 
case  was  brought  here  by  appeal. 

A  great  many  interesting  questions  were 
presented  by  counsel  which  in  our  view  of 
tbe  case  it  Is  not  necessary  to  discuss.  The 
complainant  obtained  his  title  to  the  land 
from  the  estate  of  Charles  Dease.  The  rec- 
ord discloses  the  following:  "Files  and  rec- 
ords of  the  circuit  court  for  the  county  of 
Ogemaw,  in  chancery,  in  the  suit  entitled 
Charles  Dease,  Complainant  v.  Auditor  Gen- 
eral and  County  Treasurer,  Defendants,  T. 
B.  Tuttel  being  solicitor  for  complainant  and 
De  Vere  Hall  as  solicitor  for  defendants,  dis- 
closes the  following  facts:  October  6,  1887, 
bill  of  complaint  filed  to  set  aside  taxes  of 
year  1885  for  defects  alleged  therein.  March 
12,  1888  defendants'  answer  filed.    March  24, 

1888,  complainant's  replication  to  answer  fil- 
ed. April  16,  1889,  proof  of  service  ot  no- 
tice of  hearing  that  case  will  be  tried  May 
7,  1889,  filed.  May  13,  1880  court  in  session, 
decree  rendered.  June  7,  1889,  notice  of 
signing  and  settling  decree,  filed.    Jan«  7, 

1889,  notice  of  entry  of  decree.    December 


•For  otber  caus  ■«•  same  toplo  and  section  NUUBER  tn  D«c.  *  Am.  Diss.  UOT  to  date,  ft  Reporttr  ladesM 


Digitized  by  VjOOQ  l€ 


MldL) 


BANNIQAN  ▼.  WOODBURY, 


531 


12,  1889,  execntlon  Issued,  returned  not  sat- 
isfied 12-4-1890.  In  the  bill  so  as  above 
filed  It  was  by  said  Charles  Dease  claimed 
that  said  taxes  were  levied  without  authority 
of  law."  The  decree  entered  recites,  among 
other  things,  as  follows:  "This  cause  having 
been  brought  on  for  hearing  on  proofs  taken 
in  open  court,  In  the  circuit  court  for  the 
county  of  Ogemaw,  in  chancery,  and  having 
been  argued  by  counsel  for  the  respective 
parties,  and  due  deliberation  had  thereon,  it 
is  ordered,  adjudged,  and  decreed:  •  •  • 
It  Is  hereby  determined  that  the  lien  created 
against  the  said  lands  of  complainant,  de- 
scribed In  his  bill  of  complaint,  filed  In  this 
canse^  by  the  assessment  and  levy  of  taxes 
In  the  year  1885,  be  and  the  same  Is  hereby 
oontlnned  in  full  force  and  eftect,  said  lien 
to  continue  until  the  said  lands  are  sold  by 
virtue  of  and  under  the  provisions  of  act  Na 
163  of  the  PabUc  Acts  of  the  state  of  HIcM- 
gan  for  the  year  1885,  and  act  No.  17  of  the 
Public  Acts  of  said  state  for  the  year  1887, 
after  properly  advertising  the  same  as  di- 
rected by  said  act  for  the  said  taxes  of 
1885,  and  all  interest,  costs,  office  charges, 
costs  of  advertising  and  collection  fees,  as 
provided  by  said  act  No.  163  or  until  sold 
under  this  decree  as  hereinafter  provided." 
The  lands  were  later  sold  under  this  decree 
and  bid  in  by  the  state.  Counsel  claim  as 
follows:  "It  is  not  disputed  in  this  case  that 
the  taxes  assessed  against  said  lands  for 
year  1885  were  about  to  be  sold  at  the  tax 
sale  of  year  1887,  when  such  sale  was  en- 
joined by  the  circuit  court  for  the  county  of 
Ogemaw,  in  chancery,  at  the  suit  of  Charles 
Dease,  as  complainant,  against  Auditor  Gen- 
eral, et  aL,  as  defendants.  That  the  said 
Charles  Dease  departed  this  life  In  February, 
1889,  while  the  hearing  in  said  suit  was  not 
had  until  May,  1889,  and  no  suggestion  was 
made  therein  of  the  death  of  Charles  Dease, 
or  the  substitution  of  his  representatives  as 
complainants." 

It  is  also  claimed  that  the  notice  was  not 
given  and  the  sale  made  as  to  time  accord- 
ing to  the  terms  of  Act  No.  153,  p.  175,  of 
the  Public  Acts  of  1885,  and  that  nothing 
appears  in  the  files  showing  the  Issuing  of 
an  execution  and  a  return  thereof  before  sale. 
The  last-named  contentlou  Is  shown  to  be 
not  well  taken.  We  have  already  quoted 
enough  from  the  decree  to  show  that  it  was 
rendered  after  proofs  were  taken  in  open 
court  and  after  argument  of  counsel  for  the 
respective  partleiL  Just  what  proof  was  tak- 
en in  open  oourt  Is  not  made  to  appear.  The 
decree  then  made  in  a  case  brought  by  the 
grantor  of  the  complainant  In  this  case  has 
never  been  attacked  in  that  case,  and  we 
think  it  cannot  now  be  attacked  in  this  pro- 
ceeding. The  decree  provided  that  the  lien 
should  continue  until  the  land  was  sold  there- 
under.   We  think  it  now  too  late  to  say  that 


the  taxes  passed  upon  In  that  decree  were 
Irregularly  levied. 
The  decree  Is  affirmed,  with  oosta. 


BANNIOAN  T.  WOODBURT. 
(Supreme  Court  of  Michigan.    Sept  21,  1909.) 

1.  NBOLIGENCK  (I  35»)— INJTTBT  TO  Tbavelib 

ON  Stbeei^-Objectb  Faixiho  fboic  Build- 
ing—Liability  or  OWNEB. 

A  complaint,  alleging  that  defendant  negli- 
gently permitted  the  windows  in  the  thircl  story 
of  a  building  under  his  control  to  become  out  of 
repair,  and  that  the  glass  became  loose  and  fell 
out  of  the  windows  and  injured  plaintiff  while 
she  was  walking  along  the  street  in  front  of  the 
building,  stated  a  good  cause  of  action. 

[Eld.  Note.— For  other  cases,  see  Negligence, 
Cent.  Dig.  i  64;   Dec.  Dig.  {  86.*] 

2.  Executors  and  Aoi«nibtbatobb  ({  119*)— 

LlA  BILITIKS— Tobtb. 

No  aetion  lies  against  the  estate  of  a  dece- 
dent for  injaries  caused  one  after  decedent's 
death,  by  the  falling  of  glass  from  a  building  be- 
longing to  the  estate. 

[E}d.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent.  Dig.  S  483 :  Dec.  Dig. 
I  119.*] 

S.   EXXCUTOBS  AND  AOiaNIBTBATOBS  (i  450*) — 

Possession  of  Land— Pbisuuftion  or  Lk- 

OALITT. 

It  will  be  presumed  that  an  administrator 
in  charge  and  control  of  his  intestate's  building 
is  legally  in  control  and  possession  until  the 
contrary  is  shown. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  {  1858;  Dec. 
Dig.  S  460.*] 

4.  EXKCUTOBS  AND  ADUINIBTBATOBS  (f  119*)— i 
TOBT»— LlABIUTT. 

It  is  the  duty  of  an  administrator  lawfully 
in  possession  of  real  estate  of  bis  intestate  to 
keep  it  in  a  safe  condition  so  as  to  protect  trav- 
elerg  along  the  street  on  which  it  is  situated,  and 
for  negligent  failure  to  do  so,  resulting  in  injury 
to  others,  he  is  individually  liable. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  i  483;  Dec. 
Dig.  S  119.*] 

5.  EXKCnrOBB  and  AoinNIBTBATOBB  ({  444*) — 
NBOUaSNCB— LlABIUTT— Pleadinos. 

In  an  action  against  an  administrator  for 
injuries  to  plaintiff  through  glass  falling  from 
the  windows  of  a  building  negligently  pennitted 
by  defendant  to  become  unsafe,  the  allegation 
that  defendant  is  administrator  and  as  such 
in  possession  of  the  property,  does  not  neces- 
sarily negative  his  personal  liability.  . 

[EM.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  |  1817;  Dec. 
Dig.  {  444.*] 

&  Pbincifal  and  Agent  ({  169*)— Tobts— 

Liabilitt  or  Agent. 

An  agent  in  the  control  of  property  is  re- 
sponsible for  his  own  tortious  acts. 

[EH.  Note. — For  other  cases,  see  Principal  and 
Agent,  Cent  Dig.  S  808;  Dec.  Dig.  {  159.*] 

Error  to  Circuit  Court,  Kalamazoo  County: 
Frank  B.  Knappen,  Judge. 

Action  by  Kathryn  Bannlgan,  by  her  next 
friend,  against  Edward  Woodbury,  individu- 
ally and  as  administrator.  Judgment  for  de- 
fendant, and  plaintiff  brings  error.  Reversed 
and  remanded. 


•rar  ethw  osms  sm  sam*  toplo  and  ■•etlon  NUMBER  la  Dee.  *  Am.  Digs.  IMt  to  datt^  *  Reportw  IndezM 


Digitized  by  VjOOQ  IC 


332 


122  NORTHWESTERN  BEPOBTEIL 


.(Mlcli. 


Plaintiff  in  her  declaration  complains  of 
defendant,  Edward  Woodbury,  administrator 
of  the  estate  of  Jeremiab  P.  Woodbury,  de- 
ceased, and  Edward  Woodbury,  individually. 
Sbe  alleges:  That  defendant  was,  and  had 
been  for  a  long  time,  prior  to  July  7,  1908, 
the  administrator  of  said  deceased;  that  he 
bad  the  charge  and  control  of  a  building  situ- 
ated on  the  west  side  of  Sonth  Burdlck  street 
in  the  city  of  Kalamazoo,  belonging  to  said 
estate;  that  it  is  a  three-story  structure  com- 
posed of  brick,  stone,  and  wood,  used  for  a 
store  and  business  purposes;  that  the  glass 
windows  in  the  third  story  of  said  building 
were  negligently  permitted  by  defendant  to 
become  out  of  repair  and  unsafe;  that  the 
glass  In  said  windows  had  become  loose;  and 
that  on  said  day  while  walking  along  the 
street  glass  fell  out  of  the  windows,  striking 
her  upon  the  head  and  face  and  injuring  her. 
The  declaration  also  alleges  negligence  on 
the  part  of  Woodbury  individually  as  well  as 
in  his  capacity  as  administrator.  The  de- 
fendant demurred  to  the  declaration  on  the 
ground  that  no  Judgment  can  be  obtained 
against  the  estate  under  the  cause  of  action 
set  out  in  the  declaration  or  against  him  in- 
diyldually.    The  demurrer  was  sustained. 

Argued  before  GRANT,  MONTGOMERY, 
OSTBANDER,  HOOKER,  and  MOORE,  JJ. 

Jackson  &  Fitzgerald,  for  appellant  A.  M. 
&  C.  H.  Steams,  for  appellee. 

GRANT,  X  (after  stating  the  facts  as 
above).  The  unsafe  condition  of  the  windows 
is  sufficiently  described  in  the  declaration  and 
constitutes  a  cause  of  action  for  which  some- 
body should  be  held  responsible.  No  action 
can  be  sustained  against  the  estate  because' 
plaintiff's  cause  of  action  arose  after  the 
death  of  Jeremiah  P.  Woodbury.  The  heirs 
are  not  made  parties.  Whether  they  are  lia- 
ble for  the  unsafe  condition  of  the  building 
is  not  before  us.  It  is  true  that  the  adminis- 
trator is  not  usually  entitled,  under  our  stat- 
ute, to  the  possession  of  the  real  estate.  The 
demurrer,  however,  admits  that  he  is  in 
charge  and  control  of  the  building.  It  will 
,be  assumed  that  be  is  legally  in  control  and 
possession  until  the  contrary  is  shown.  An 
administrator  may  be  lawfully  in  the  posses- 
sion of  the  real  estate  of  the  intestate.  If 
so,  it  would  be  his  duty  to  keep  it  in  a  safe 
condition,  so  as  to  protect  travelers  along 
the  streets.  The  allegation  that  he  is  admin- 
istrator, and  that  as  such  he  Is  in  possession 
of  the  property,  diDes  not  necessarily  negative 
his  personal  liability.  Such  allegation  may 
be  treated  merely  as  descrlptio  persons  and, 
surplusage.  Ferrler  v.  Trepanler,  24  Can.  S.| 
C.  8C;  Shepard  v.  Creamer,  160  Mass.  406,  36 
N.  E.  475;  Belvln  t.  French,  84  Va.  81,  8  S.  B.: 
801.  • 

An  agent  in  the  control  of  property  is  re-' 
sponsible  for  his  own  tortious  acts.  Ellis 
V.  McNaughton,  76  Mich.  237,  42  N.  W.  1113, 
15  Am.  St.  Rep.  308.    Ferrler  v.  Trepanler  is 


very  similar  to  this  case.  A  window  fell  and 
killed  a  traveler.  The  cause  of  the  faU  was 
the  same  as  in  this  case.  The  declaration 
was  framed  In  a  similar  manner,  and  the 
court  say:  "They  (the  defendants)  were,  at 
the  time,  In  actual  possession  of  this  build- 
ing. It  was  under  their  exclusive  control  and 
superintendence,  whether  as  trustees  or  ex- 
ecutors, as  depositaries  or  sequestrators,  or 
in  any  other  fiduciary  capacity  whatever, 
does  not  make  the  least  difference,  or  lessen 
in  any  way  their  own  personal  liability  for 
tortious  neglect  by  a  third  party  suffering 
damages."  In  Shepard  v.  Creamer,  suit  was 
brought  against  the  defendant  as  trustee, 
wnere  the  plaintiff,  a  traveler  on  the  high- 
way, was  injured  by  a  fall  of  snow  and  ice 
from  the  roof  on  an  abutting  building  of 
which  the  defmdant  had  control  as  trustee^ 
It  was  held  that  the  description  of  the  de- 
fendant as  trustee  was  surplusage,  and  the 
defendant  was  held  Individually  liable.  In 
Belvin  V.  French^  defendants  were  sued  as 
executors  for  negligence  in  failing  to  keep  a 
hotel  property  in  proper  repair.  Held  that, 
while  they  were  not  liable  as  executors,  they 
were  liable  individually,  and  the  allegation 
that  they  wore  executors  was  held  merely  a 
descriptlo  personse  and  surplusage. 

The  Judgment  should  be  reversed,  and  the 
case  remanded  for  further  proceedings  ac- 
cording to  the  rules  and  practice  of  the  court. 


ROUSE  T.  MICHIGAN  UNITED  RYS.  CO. 
(Supreme  Court  of  Michigan.    Sept  21,  1900.) 

1.  TBIAL    (5    295*)— iNSTKUCnOirS— CONSTBUC- 
TION. 

A  chaise  should  be  considered  as  a  whole, 
and  not  be  judged  by  paragraphs  separated  from 
the  context 

[Ed.  Note.— For  other  cases,  see  Trial,  Ont. 
tMg.  St  703-717;  Dec.  Dig.  t  205.*] 

2.  Appeal  and  Ekeob  (S  216*) —Objections 
Below — Necessity — Insthuctions. 

While  the  trial  court  need  not  give  requests 
the  substance  of  which  is  contained  in  the  gen- 
eral charge,  the  refusal  to  give  any  requests 
which  sh6uld  be  given,  and  omitting  the  prop- 
osition of  law  entirely  from  the  charge,  may  be 
questioned  by  assiepmenta  of  error,  and.  where 
the  proposition  omitted  is  essential  to  the  sub- 
mission of  the  theory  of  either  party,  error  may 
be  assigned  to  the  charge  under  the  statute, 
even  if  the  attention  of  the  court  was  not  spe- 
cifically called  to  the  matter. 

lEd.  Note.— For  other  cases,  see  Appeal  and 
Wrror,  Dec.  Dig.  {  216;*  Trial,  C!ent  Dig.  |( 
627-641.] 

3.  Street  Railboads  (|  99*)— In^ttby  to  Per- 
son Crossing  Track— Gontbibuiobt  Neo- 

LIOBNCE. 

One  who,  knowing  that  a  street  car  was 

following  him  suddenly  turned  his  team  and  at- 
tempted to  cross  the  track  in  front  of  the  car 
when  it  was  about  40  feet  distant  was  guilty  of 
contributory  negligence. 

[Ed.  Note.— For  other  cases,  see  Street  Rail- 
roads, Cent  Dig.  Si  200-216;   Dec.  Dig.  {  99.*] 


•For  otber  coses  sea  sam*  topic  and  section  NUMBKR  In  Deo.  A  Am.  Diss.  1907  to  data,  *  Banortar  InSax** 


Digitized  by  VjOOQ  l€ 


Ulch.) 


ROUSE  V.  MICHIGAN  UNITED  RT8,  CO. 


633 


4.   StBEET    RAII.ItOADB    (t    101*)— INJTJBIES    TO 

Febbon  Cbossino  Track  —  Contbibutoby 

Keglioence. 

Under  the  rule  that  plaintiff  cannot  recover 
If  his  negligence  contributed  to  the  injury,  even 
thoDgfa  defendant's  act  was  in  violation  of  law, 
one  guilty  of  contributory  negligence  cannot  re- 
cover for  injuries  through  being  struck  by  a 
street  car  while  attempting  to  cross  the  tracR, 
though  the  car  was  running  faster  than  permit- 
led  by  a  city  ordinance. 

[£2d.  Note.— For  other  cases,  see  Street  Rail- 
roads, Dec.  Dig.  §  101.*] 

Error  to  Circuit  Court,  Ingham  County; 
Howard  Welst,  Judge. 

Action  by  Albert  Rouse  against -^e  Michi- 
gan United  Railways  Company.  Judgment 
for  plalntlflf,  and  defendant  brings  error.  Re- 
veraed,  and  new  trial  ordered. 

Argued  before  OSTRANDBR,  HOOKER, 
MOORE,  McAIiVAT,  and  BROOKE,  JJ. 

Sanford  W.  Ladd,  for  appellant.  Frank  L. 
Dodge  (R.  H.  Person,  of  counsel),  for  ap- 

McALVAY,  J.  Plaintiff  was  Injured  while 
crossing  the  street  railway  track  of  defend- 
ant In  the  dty  of  Lansing  In  March,  IttOT. 
He  claims  that  this  occurred  on  account  of 
tbe  negligence  of  the  servants  of  defendant. 
Be  was  a  farmer,  and  came  Into  North  Iians- 
Ing  on  the  forenoon  of  tbe  day  of  the  acci- 
dent, where  he  stopped  for  some  time,  and 
then  proceeded  west  on  Franklin  street,  turn- 
ing south  when  be  reached  Washington  ave- 
nue, driving  on  the  east  side  of  defendant's 
tracks,  which  are  laid  In  the  middle  of  that 
avenue.  He  was  driving  a  team  of  horses 
bitched  to  a  wlde-tlred  wagon,  wltb  a  rack 
box  16  feet  In  length  containing  chicken 
crates.  He  proceeded  on  Washington  avenue 
until  he  reached  Madison  street,  which  Inter- 
sects It  at  right  angles,  where  he  attempted 
to  cross  the  track  by  turning  to  the  west 
into  Madison  street  A  street  car  was  follow- 
ing him  going  in  the  same  direction,  1.  e., 
south.  He  knew  this,  having  seen  It  some 
time  before  he  turned  to  cross.  He  claims 
that  at  the  time  be  turned  the  car  was  more 
than  a  block  distant.  In  crossing  the  wagon 
was  struck  and  plaintiff  was  injured.  He 
charges  negligence  In  that  the  car  was  run 
at  a  high  rate  of  speed  without  caution  or 
care  for  plaintiff's  safety,  and  In  not  bringing 
the  car  under  control  In  time  to  avoid  a  col- 
lision. There  Is  a  dilute  as  to  the  distance 
of  the  car  away  at  the  time  plaintiff  made  his 
observation  before  he  began  to  make  tbe 
crossing,  and  also  as  to  the  place  where  he 
attempted  to  cross;  plaintiff  claiming  that 
he  started  to  turn  at  the  north  crosswalk  of 
Madison  street,  and  the  defendant  that  this 
occurred  at  or  south  of  the  south  crosswalk 
of  Madison  street.  There  is  also  a  dispute 
as  to  tbe  time  of  day  the  accident  occurred 
and  the  speed  of  the  car.  The  claim  of 
defendant  was:    That  plaintiff  was  driving 


along  on  this  avenue  at  a  proper  distance 
from  the  track,  and  when  he  got  to  the  south 
crosswalk  of  Madison  street  he  turned  his 
team  abruptly  to  cross  the  track,  when  the 
car  of  defendant  was  so  near  that  an  acci- 
dent was  unavoidable;  that  the  car  was  op- 
erated with  care,  and  not  at  a  high  rate  of 
speed;  that  the  contributory  negligence  of 
the  plalnUff  was  the  cause  of  his  Injury. 
The  Jury  under  the  charge  of  the  court  re- 
turned a  substantial  verdict  for  plaintiff. 
This  court  Is  asked  to  reverse  the  Judgment 
entered  up<m  such  verdict  upon  errors  claim- 
ed to  have  been  committed  upon  the  trlaL 
Of  the  errors  assigned,  but  one  will  require 
consideration.  It  is  claimed  by  defendant 
that  the  court  erred  In  charging  the  Jury 
upon  the  question  of  the  contributory  negli- 
gence of  plaintiff  and  In  refusing  to  charge 
as  requested  upon  that  subject. 

Tbe  following  excerpts  from  the  charge 
give  the  claims  of  the  t>artle8  In  the  case  and 
the  Issue  Involved  as  stated  by  the  court: 
"He  claims  that  before  he  turned  to  cross 
tbe  track  he  looked  to  see  where  the  cars 
were,  and  saw  one  back  of  him  Just  north 
of  Jefferson  street  approaching  Madison 
street,  that  would  be  approaching  in  his  di- 
rection. It  Is  his  claim  that  the  car  was 
being  run  at  a  high  and  prohibited  rate  of 
speed,  and  because  of  that  fact,  before  he 
got  across  the  track.  It  struck  his  wagon  and 
caused  his  Injury.  The  defendant  claims 
that  the  car  was  not  running  at  an  excessive 
or  prohibited  rate  of  speed,  and  that  the  ac- 
cident was  caused  by  plaintiff  carelessly  turn- 
ing to  cross  the  track  so  near  the  car  that 
It  was  not  possible  for  the  motorman  to  stop 
the  car  In  time  to  avert  the  accident  (3) 
The  Issue  In  this  case  Is  not  complicated ;  In 
fact.  It  Is  very  narrow.  There  Is  no  proof 
that  the  motorman  In  charge  of  the  car  was 
Incompetent,  or  that  the  brake  or  appliances 
on  the  car  for  stopping  the  car  or  arresting 
Its  action  was  Insufficient  or  faulty.  There- 
fore tbe  question  submitted  to  you  and  for 
you  to  determine  from  the  evidence  Is:  How, 
In  broad  daylight,  with  a  competent  motor- 
man  with  a  car  fitted  with  proper  appliances, 
did  this  accident  happen?  Was  It  because 
of  the  failure  of  the  motorman,  after  he  in 
fact  observed,  or  should  have  observed,  had 
he  been  paying  attention  to  his  duty,  the 
plaintiff  upon  the  track  at  a  point  where 
had  he  taken  proper  precaution  he  could  have 
averted  the  accident  by  bringing  his  car  to 
a  stop,  or  was  it  because  the  plaintiff  turned 
across  the  track  when  the  car  was  so  near 
that  It  was  not  possible  for  the  motorman 
to  arrest  the  progress  of  his  car  and  avert 
the  accident?  •  •  •  The  plaintiff  claims 
that  defendant  was  negligent  In  running  Its 
car  at  a  high  rate  of  speed,  a  prohibited  rat'j 
of  speed,  and  running  it  upon  him  wh(u 
the  motorman  should  and  could  have  discov- 
ered his  i)06itlon  on  the  track  in  time  to  have 


•ror  otker  caiei  *M  mine  toplo  and  Mctlos  NUMBER  In  Dec.  *  Am.  Digs.  U07  to  data,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


534 


122  NORTHWESTERN  REPORTER. 


(Midi. 


averted  the  accident,  had  he  exercised  ordi- 
nary prudence  In  running  the  car." 

The  portions  ot  the  charge  of  the  court 
upon  the  question  of  contributory  negligence 
complained  of  by  defendant  are  as  follows: 
"If,  on  the  other  hand,  the  plaintiff  turned 
to  cross  the  track  at  a  point  and  place  so 
near  the  approaching  car  that  it  was  not  pos- 
sible, after  his  peril  became  toiown  to  the 
motorman,   or   should  have  been  known   to 
him,  by  the  exercise  of  ordinary  care  and 
prudence,   and  the  motorman   used   all   the 
means  at  his  command  to  arrest  the  progress 
of  the  car  and  avert  the  accident,  and  could 
not  have  averted  the  accident,  bad  the  car 
been  running  within  the  speed  limit  of  16 
miles  per  hour,  then  the  plaintiff's  want  of 
care  and  the  defendant's  exercise  of  ordi- 
nary care  defeats  the  plaintiff's  action,  and 
in  such  event  your  verdict  will  be  for  the 
defendant.    *    *    *    A  violation  of  this  or- 
dinance by  the  railway  company  of  itself 
does  not  give  the  plaintiff  a  right  of  action ; 
but  the  plaintiff  in  attempting  to  cross  the 
track.  If  he  Imew  at  the  time  from  former 
observation  the  rate  of  speed  of  the  cars, 
had  a  right  to  assimie  that  the  car  he  saw 
coming  was  not  exceeding  the  lawful  speed. 
*    *    *    If  he  was  acting  as  a  person  of 
ordinary  care  and  prudence,  what  caused  the 
accident?    Was  It  because  the  car  was  being 
propelled  at  an  excessive  and  unlawful  rate 
of   speed?    Was   it   because  the   motorman 
failed  to  make  the  observation  he  should 
make  to  see  whether  the  track  was  clear? 
If  the  motorman   had  observed,   would  he 
have  discovered  the  position  of  the  plaintiff 
on  the  track  in  time,  bad  the  car  been  pro- 
pelled at  the  legal  rate  of  speed,  to  have 
stopped  his  car  and  have  averted  the  acci- 
dent?   These  are  issues  for  the  plaintiff  In 
this  case  to  establish  by  a  preponderance  of 
the  evidence.    Was  the  accident  caused  by 
the  plaintiff  turning  upon  the  track  in  front 
of  a  car  near  to  him,  so  near  tliat,  had  it 
been  propelled  at  a  legal  rate  of  speed,  the 
motorman  could  not  have  prevented  the  acci- 
dent by  the  exercise  of  care?    If  you  find 
such  to  be  the  fact,  then  the  plaintiff  cannot 
recover."    Defendant's  position  is,  as  his  re- 
quests to  charge  show,  that  the  court  should 
have  charged  that.  If  the  Jury  found  plaintiff 
guilty  of  contributory  uegligence,  then  the 
verdict  should  be  for  defendant,  even  If  the 
car  was  running  at  a  rate  exceeding  the 
speed  limit;   In  other  words,  that  If,  in  this 
case,  plaintiff  was  guilty  of  contributory  neg- 
llgeuce,  he  could  not  recover. 

The  rule  is  well  established  that  a  charge 
should  be  considered  as  a  whole,  and  not 
Judged  by  paragraphs,  separated  from  the 
context,  and  plaintiff  claims  that  the  appli- 
cation of  this  reasonable  rule  shows  that  the 
court  was  not  in  error  in  his  charge  upon 
contributory  negligence.  Applying  this  rule, 
we  find  that  the  charge  nowhere  contains  an 


Instruction  to  the  Jury  such  as  defendant 
urges  should  have  been  given  as  above  stated. 
If  defendant  is  right,  the  court  was  In  error. 
There  can  be  no  doubt  but  that  the  several 
requests  of  defendant  gave  the  court  to  an- 
derstand  its  position  upon  the  question  of 
contributory  negligence,  and  sufflciently  call- 
ed attention  to  what  It  claimed  was  the  law 
upon  that  subject  In  this  case.  The  trial 
court  need  not  give  requests  the  substance  of 
which  is  contained  in  his  general  charge; 
but  the  refusal  to  give  any  requests  which 
should  be  given,  and  omitting  the  pn^ositlon 
of  law  entirely  from  the  charge,  may  be  ques- 
tioned by  assignments  of  error,  and,  where 
the  proposition  of  law  omitted  Is  essential  to 
the  submission  of  the  theory  of  either  party, 
error  may  be  assigned  to  the  charge  under 
the  statute,  even  if  the  attention  of  the  court 
has  not  been  specifically  called  to  the  matter. 

In  his  charge  the  court  in  each  instance 
qualified  the  effect  of  contributory  negligence 
as  defeating  recovery  upon  the  condition  that 
the  speed  of  the  car  did  not  exceed  the  ordi- 
nance limit  In  this  he  was  In  error.  The 
testimony  of  defendant's  witnesses  tended  to 
prove  that  plaintiff  suddenly,  when  the  car 
was  but  a  short  distance  away,  turned  bis 
team  from  a  place  of  safety  to  cross  the 
track  in  front  of  this  car,  which  he  had  seen 
and  Icnew  was  following  him,  that  the  dis- 
tance from  the  car  was  about  40  feet,  and 
that  warnings  were  given  and  the  car  stopped 
as  soon  as  possible.  Defendant  was  entitled 
to  a  charge  that,  if  this  was  true,  plaintiff 
would  be  guilty  of  contributory  negligence. 
The  question  of  contributory  negligence  in 
this  case  was  one  of  fact  and  not  of  law. 
"The  universal  rule  is  that.  If  negligence  on 
the  part  of  the  person  Injured  contributed  to 
the  injury,  he  Is  not  entitled  to  recover."  29 
Cyc.  507.  This  rule  has  been  applied  In  this 
state,  and  this  court  has  held  that  if  plain- 
tiff is  negligent  he  cannot  recover,  nnless  the 
negligence  of  the  defendant  complained  of 
was  wanton  or  willful.  The  weight  of  aa- 
tliorlty  Is  that  if  plaintiff's  negligence  con- 
tributed to  the  injury,  though  the  act  of  the 
defendant  Is  In  violation  of  the  law,  the  plain- 
tiff cannot  recover.  Beach  on  Contrlb.  Neg. 
(3d  Ed.  Rev.)  {  49,  notes  and  cases  cited. 
The  court  was  in  error  In  omitting  from  bis 
charge  as  given  to  state  that  plaintiff  could 
not  recover  if  guilty  of  contributory  negli- 
gence, even  if  the  car  was  running  faster 
than  permitted  by  the  ordinance. 

The  Judgment  is  reversed,  and  a  new  trial 
ordered. 


SCHNIDER  V.  MOXraOSS. 
(Supreme  Court  of  Michigan.     Sept.  21,  1909.) 

1.  False   Imprisonment   (J   7*)— Illeoautt 

OF  Arrest— Arrest  Without  Warrant. 
An  officer  may  arrest  without  warrant  only 
for  felony  or  breach  of  peace,  so  that  the  ar- 


•For  otlier  casea  >ae  same  topic  and  lecUon  NUMB£R  In  Dec.  *  Am.  Dlca.  U07  to  dat«,  *  a«port«r  ladaxaa 


Digitized  by 


Google 


Mich.) 


PEREGO  T.  LAKE  SHORE  &  H.  S.  RT.  CO. 


535 


rest  of  one  withoat  warrant  for  sellinj  meat 
withODt  license  was  illegal,  and  the  officer  is 
liable  to  the  one  arrested  for  actual  damages 
caused  thereby. 

[Ed.  Note. — For  other  cases,  see  False  Impris- 
onment, Cent  Dig.  S  6;    Dec  Dig.  |  7.*] 

2.  FAI.SB    IMPBIBOWMENT     (8    35*)— DAlfAQBB— 

ExEMPT^BT  Damages. 

If  an  officer  acted  wantonly,  recklessly,  or 
malicionsly  in  illegally  arresting  plaintiff  with- 
oat a  warrant,  plaintiff  may  recover  exemplary 
damages  in  an  action  for  false  imprisonment. 

[Bd.  Note.— For  other  cases,  see  False  Im- 
prisonment, Cent.  Dig.  f  112 ;   Dec.  Dig.  I  35.*] 

3.  False  Impbisonment  (§  7*)— Civii,  Liabil- 
ity—tiEOALmr  OF  Abbest. 

An  action  for  false  imprisonment  cannot  be 
based  apon  an  arrest  under  a  warrant  fair  upon 
its  face. 

[Bd.  Note.— For  other  cases,  see  False  Im- 
pnsonment.  Cent.  Dig.  I  8 ;   Dec.  Dig.  I  7.*] 

4.  MALicions  Pbosectttion  (J  24*)— Right  or 
Action— Probable  Cause— Conviotiow  Be- 
FORK  Justice. 

A  conviction  before  a  Justice  of  the  peace, 
though  afterward  set  aside  upon  appeal,  was 
conclusive  proof  of  probable  cause  for  arresting 
plaintiff,  unless  the  conviction  was  procured  by 
unlawful  means,  so  as  to  prevent  him  from  re- 
covering in  an  action  for  malicious  prosecution. 
[E!d.  Note. — For  other  cases,  see  Malicious 
Prosecution,  Cent  Dig.  |  53 ;   Dec  Dig.  I  24.*] 

Ca8«-made  from  Circuit  Court,  Oakland 
County;  George  W.  Smith,  Judge. 

Action  for  false  Imprisonment  and  mali- 
cious prosecution  by  C.  Ralph  Scbnlder 
against  James  Montross.  From  a  Judgment 
for  defendant,  plaintiff  appeals.  Reversed, 
and  new  trial  ordered. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Austin  E.  Richards,  for  appellant  Andrew 
L.  Moore,  for  appellee. 

BROOKE,  J.  The  plaintiff  Is  a  meat  ped- 
dler In  Oakland  county  and  particularly  In 
the  village  of  Leonard,  In  said  county.  The 
defendant  ui)on  the  date  of  the  commission 
of  the  alleged  wrong  to  plalntlft  was  the  pro- 
prietor of  a  butcher  shop  in  said  village.  On 
April  24,  1908,  there  was  in  force  in  said  vil- 
lage Ordinance  No.  26  Vi,  making  it  unlaw- 
fnl  for  any  person  to  "peddle  goods,  wares, 
and  merchandise,  without  a  license."  Upon 
the  same  day  the  village  clerk  issued  to  the 
firm  of  C.  Ralph  Schnlder  &  Co.  license  No. 
4,  authorizing  plaintiff's  firm  to  "sell  meats 
and  meat  products  from  a  wagon  or  other- 
wise" from  July  1,  1908,  to  June  30,  1909. 
The  village  adopted  another  ordinance  (No. 
30)  which  took  effect  July  13,  1908,  by  the 
terms  of  which  the  license  fee  was  raised 
from  $15  to  $50.  On  July  16,  1908,  defend- 
ant at  his  own  solicitation  was  by  the  village 
council  appointed  marshal,  and  on  the  morn- 
ing of  July  17th  the  plaintiff  entered  the  vil- 
lage and  offered  his  meats  for  sale  after  the 
marshal  had  orderod  him  to  desist  under  the 
claim  that  be  had  a  right  to  do  so  by  reason 
of  bis  license  dated  April  24,  1908.    The  de- 


fendant without  a  warrant  arrested  plaintiff 
and  confined  him  In  the  village  lock-up.  In 
the  afternoon  of  said  day  a  complaint  was 
made  by  defendant  before  a. Justice  of  the 
\>eace  upon  which  a  warrant  was  issued  and 
the  plaintiff  was  arraigned  thereon,  charged 
with  violation  of  Ordinance  No.  SO.  He 
pleaded  "not  guilty,"  an  adjournment  was 
taken  for  six  days,  and  he  was  taken  by  de- 
fendant to  the  county  Jail  at  Pontlac,  where 
he  remained  until  the  following  morning. 
Plaintiff  was  convicted  before  the  Justice  of 
the  peace,  and'ui)on  appeal  to  the  circuit 
court  was  discharged.  Thereupon  he  brought 
suit  against  defendant  for  false  Imprison- 
ment and  malicious  prosecution  In  the  clr< 
cult  court  for  Oakland  county  upon  the  trial 
of  which  a  verdict  was  directed  in  favor  of 
defendant. 

The  first  question  presented  is  whether  or 
not  the  original  arrest  without  a  warrant 
was  justified.  This  must  be  answered  in  the 
negative.  It  Is  elementary  that  an  officer 
may  arrest  without  a  warrant  only  in  cases 
of  felony  or  breaches  of  the  peace.  Tillman 
V.  Beard,  121  Mich.  475,  80  N.  W.  248,  46  L. 
R.  A.  215,  and  cases  there  cited.  The  defend- 
ant is  therefore  clearly  liable  to  plaintiff  for 
all  actual  damages  flowing  from  the  priginal 
arrest  to  be  computed  by  the  jury  under  prop- 
er  instructions  from  the  court.  -Those  dam- 
ages may  be  increased  if  defendant  acted 
recklessly  or  wantonly  or  with  a  malicious 
desire  to  Injure  plaintiff.  Is  defendant  lia- 
ble for  the  consequences  of  the  second  arrest 
(under  the  warrant),  the  plaintiff  having  been 
convicted  before  the  justice  of  the  peace  and 
acquitted  upon  appeal?  No  action  for  false 
imprisonm^it  can  be  based  upon  an  arrest 
under  a  warrant  fair  upon  Its  face.  The 
plaintiff  cannot  recover  under  his  count  for 
malicious  prosecution  because  of  bis  convic- 
tion before  the  justice  of  the  peace  that  con- 
viction furnishing  conclusive  proof  of  proba- 
ble cause  unless  procured  by  false  or  fraud- 
ulent testimony  or  'other  unlawful  means. 
The  record  discloses  no  facts  which  would 
take  this  case  out  of  the  operation  of  the 
rule.  Thick  v.  Washer,  137  Mich.  155,  100 
N.  W.  394,  and  cases  there  cited.  The  plain- 
tifTs  recovery  must  therefore  be  limited  to 
the  damages  flowing  from  the  original  arrest 

The  Judgment  is  reversed,  and  a  new  trial 
ordered. 


PEREGO  V.  LAKE  SHORE  &  M.  8.  RT.  CO. 

(Supreme  Court  of  Michigan.     Sept  21,  1909.) 

1.  Carriers  (I  286*)— Injury  to  Pasbenoebs 
— Appboaches  to  Station— Duty  or  Com- 
pany. 

A  railroad  company  whose  depot  platform 
was  near  its  yards  performed  its  full  duty  to 
prevent  passenfcers  and  others  from  crossing 
through  the  yards  by  posting  warning  notices 
and  frequently  warning  pedestrians  not  to  do  so. 
and  by  providing  a  safe  approach  over  its  tracks 


•For  other  cases  see  same  toplo  and  section  NUMBER  In  Dec.  *  Am.  Digs.  UOT  to  date,  ft  Reporter  Indexes 


Digitized  by 


Google 


536 


122  NORTHWESTERN  REPORTER. 


(Mi^l. 


to  its  depot,  BO  tbat  a  passenger  took  tlie  ansafe 
way  through  the  yards  at  his  own  risk. 

[EM.    Note.— For   other   cases,    see    Carriers, 
Cent.  Dig.  {}  1142-1145;  Dec  Dig.  {  286.*] 

2.  CaBBIEBB    (8    286«)— PA88ENGEB»— INJUBIES 

.— Cabbieb's  LiABiLirr— Gbobs  Neqliqknce. 
Where  the  carrier  performed  its  full  duty 
in  providing  a  safe  way  for  passengers  to  ap- 
proach and  leave  its  depot,  without  crossing  the 
tracks  in  its  yards,  it  would  be  liable  for  injury 
to  one  foing  in  a  way  not  provided  .only  if  caus- 
ed by  Its  gross  negligence. 

[EM.  Note.— For  other  cases,  see  Carriers, 
Cent.  Dig.  f  1142 ;    Dec.  Dig.  4  286.»] 

3.  Cabbiehs   (S  303*)— Passerqebb— Injubies 
— Neoliqence. 

Intestate,  an  8%  year  old  boy,  who,  with 
bis  brother  and  ancle,  was  leaving  defendant's 
passenger  platform  after  alighting  from  a  train, 
ran  ahead  of' the  others,  ana,  instead  of  follow- 
ing the  way  provided  by  defendant  for  passen- 
gers to  go  to  the  depot,  went  across  the  yards 
where  notices  were  posted  against  trespassers, 
and  ran  in  front  of  a  backing  switch  engine  as 
it  came  from  behind  some  freight  cars,  and  was 
killed.  The  fireman  saw  the  boy  when  he  came 
around  the  freight  cars  and  was  almost  upon  the 
track,  but  did  not  notify  the  engineer,  thinking 
he  had  time. to  cross  safely.  Boys  frequently  ran 
upon  the  track  in  front  of  approaching  trains 
and  the  engine  bell  was  ringing  at  the  time. 
Held,  that  tne  company  was  not  guilty  of  gross 
negligence  because  the  firemi^n  aid  not  notify 
the  engineer  of  the  boy's  presence,  or  for  its  fail- 
ure to  keep  a  lookout  on  the  front  of  the  back- 
ing engine  and  tender. 

[EM.  Note.->-For  other  cases,  see  Carriers, 
Cent.  Dig.  H  1236,  1237;  Dec  Dig.  I  303.*] 

4.  CABBIEBS     ({    333*)— PAeSENGEBS— IRJUBIXS 
-M30NTBIBDT0BT  NEGLIGENCE. 

A  bright  8%  year  old  boy  was  guilty  of  con- 
tributory negligence,  where,  while  leaving  de- 
fendant's passenger  platform  after  alighting 
from  its  train,  he  ran  ahead  of  adults  who  ac- 
companied him,  and  attempted  to  cross  through 
the  yards,  where  notices  were  posted  against 
trespassers,  instead  of  by  the  regular  way  pro- 
vided, and  ran  before  a  switch  engine  as  it  mov- 
ed from  behind  cars,  the  danger  from  which  was 
apparent  to  those  in  the  vicinity. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent.  Dig.  tf  1385-1397;  Dec  Dig.  I  333.*] 

Error  to  Clrcnlt  Court,  Hillsdale  County; 
Guy  M.  Chester,  Judge^ 

Action  by  Marvin  L.  Perego,  administra- 
tor of  the  estate  of  Ralph  Austin  Perego,  de- 
ceased, against  the  Lake  Shore  &  Michigan 
Southern  Railway  Company.  Judgment  for 
plaintiff,  and  defendant  brings  error.  Re- 
versed. 

Plaintiff's  decedent,  a  boy  8^  years  old, 
was  killed  while  crossing  the  tracks  In  the 
defendant's  yard,  opposite  the  passenger 
house,  being  struck  by  the  tender  of  an  en- 
gine which  was  backing  on  a  switch  track. 
The  boy  lived  in  Chicago.  He  and  his  broth- 
er, about  20  years  old,  had  come  to  visit 
their  uncle,  the  administrator  In  this  case, 
who  lived  in  a  town  some  miles  from  Hills- 
dale. On  the  morning  of  the  accident  de- 
ceased with  his  brother  and  his  uncle  came 
over  the  Ft.  Wayne  branch  of  defendant's 
road  to  Hillsdale  on  their  way  home  to  Chi- 
cago. The  defendant's  depot  grounds  are 
surrounded  on  the  north  by  Monroe  street. 


on  the  south  by  Railroad  street,  on  the  east 
by  Hillsdale  street,  and  on  the  west  by  West 
street.  The  passenger  depot  Is  located  on 
the  north,  fronting  Monroe  street  and  about 
the  middle  of  the  block.  The  first  track 
south  Is  the  main  track  of  the  defendant's 
road,  running  east  and  west.  The  second 
track  is  known  as  the  Ft  Wayne  track. 
The  third  track  Is  the  middle  siding.  The 
fourth  track  Is  known  as  the  House  track. 
South  of  these  four  tracks  are  located  the 
freighthouses.  South  of  the  freighthouses 
are  two  other  tracks,  the  first  one  being  for 
storing  cars,  and  the  last  one,  called  the 
Plug  track,  on  which  cars  were  stationed 
for  unloading.  Track  No.  4,  the  house  track, 
ran  to  the  north  side  of  the  freight-  depot 
which  was  located  south  and  east  of  the  pas- 
senger depot.  The  passenger  platform  ex- 
tended from  the  passenger  depot  across  the 
main  line  track  to  the  Ft.  Wayne  track  for 
the  accommodation  of  passengers  going  to 
and  from  the  Ft.  Wayne  train.  South  of 
the  Ft  Wayne  track  the  tracks  were  not  fill- 
ed level  with  the  rails.  When  the  Ft 
Wayne  train  arrived  on  which  the  deceased, 
his  brother,  and  their  tmcle  were  passengers. 
It  stopped  in  front  of  the  depot  The  main 
line  passenger  train  going  east  was  then 
standing  on  the  main  line  track.  A  passen- 
ger train  for  Lansing,  facing  north,  was 
standing  on  the  spur  track  north  of  the 
main  track  with  its  dead  end  west  of  the 
passenger  depot  A  train  for  YpsllantI  was 
standing  on  another  spur  track,  which  was 
north  of  the  main  line  track,  with  its  dead 
end  east  of  the  passenger  depot.  The  tliird 
track  or  middle  siding  was  occupied  by  a 
solid  string  of  box  cars  extending  beyond 
the  end  of  the  Ft  Wayne  train.  This  track 
was  usually  so  occupied.  A  awltch  engine 
was  at  the  time  engaged  in  switching  on 
the  plug  and  house  tracks.  The  passengers 
of  the  Ft  Wayne  train  disembarked  on  the 
north  side  of  the  train  and  passed  west  in 
a  line  to  go  around  the  rear  of  the  main 
line  passenger  train  to  the  passenger  depot; 
the  deceased,  his  uncle,  and  brother  being 
among  them.  Another  line  of  passengers 
was  coming  from  the  depot  to  take  the  Ft 
Wayne  train.  When  about  opposite  the  ea- 
glne  of  the  Ft  Wayne  train,  they  stopped 
for  the  brother  to  go  back  to  the  car  and  get 
his  handkerchief,  which  he  thought  he  had 
left  there.  On  his  return  they  started  west; 
the  uncle  and  brother  each  carrying  valises. 
The  deceased  then  almost  Immediately  ran 
past  the  uncle  and  brother,  and  went  diag- 
onally across  the  yards  around  the  end  of 
the  box  cars  and  onto  the  fourth  or  house 
track,  where  he  was  run  over  by  the  switch 
engine  backing  out  from  the  plug  or  sixth 
track  to  switch  onto  the  house  tracic  It 
appears  that  a  large  portion  of  the  city  of 
Hillsdale  is  situated  to  the  south  of  the  de- 
pot and  grounds,  and  that  people  were  in 


•For  other  mmi  sm  same  topio  and  lecttoB  MUMBBR  In  Deo.  *  Am.  Digs.  1M7  to  £at«,  A  Rvcrtar  IndesM 


Digitized  by 


Google 


Ulcb.) 


PBREGO  t.  LAKE  SHORE  &  M.  S.  RT.  CO. 


537 


the  habit,  instead  of  coming  out  flpon  Mon- 
roe street  and  going  around  In  the  way  pro^ 
vlded,  t6  tToes  all  th^fee  tracks  to  the  south. 
It  appears  that  this  was  done  to  such  an  ex- 
tent that  there  was  a  beaten  path.  The  un- 
cle and  brother  were  not  intending  to  go 
across  these  tracks,  but  intended  to  go -west 
to  West  street 

Plaintiff  testiaed  as  follows:  "A.  The  first 
I  can  recollect  of  anjthing  occurring  \m- 
nsual,  my  mind,  as  I  think  you  stated,  was 
to  go  to  West  street,  and  I  was  walking  in 
that  direction,  and  by  some  means,  possibly 
— I  don't  know,  I  wouldn't  attempt  to  give 
any  reason,  but  I  think — it  is  my  recollec- 
tion that  the  young  man  sitting  here  was 
ahead  of  me.  and,  as  we  got  up  in  past  the 
engine  that  tiacked  our  train  in  there,  we 
stopped  over  that,  in  front  of  that  engine, 
and  right  at  'that  point  The  first  I  knew 
the  little  boy  passed  me,  and  what  makes 
me  so  positive  that  the  young  man  was 
ahead  of  me  is  that  it  firmly  stamped  in  my 
memory  that  I  saw  htm  make  a  dive  to  grab 
blm,  but  he  had  bis  suitcase,  and  he  slipped 
off,  couldn't  stop  him,  and  he  kept  on  turn- 
ing to  the  left  and  crossing  the  tracks.  I 
was  just  on  the  point  of  saying,  'Don't  cross 
here,'  when  the  imminent  danger  of  the  boy 
Interfered,  and  I  cried  out  to  the  boy  to 
come  back.  He  kept  on.  •  •  •  He  didn't 
seem  to  hear  us,  our  calling.  We  were  both 
calling  to  him,  but  he  seemed  to  see  some- 
thing where  he  was  going,  and  bent  in  that 
direction.  As  he  got  on  the  track,  the  en- 
gine was — shot  out  from  behind  those 
freight  cars,  and  was  right  upon  him,  and 
he  saw  It  saw  his  danger,  and  attempted  to 
come  back,  and  in  his  turning  to  come  back 
he  stumbled  over  the  rails  and  fell  with  his 
right  limb  and  arm  over  the  rail  and  the 
left  hand  under  hlra  apparently.  Judging 
from  the  way  he  was  mangled,  and  the  ten- 
der passed  over  blm  and  threw  him  out,  so 
that  the  balance  of  the  engine,  as  near  as  I 
can  remember,  didn't  hit  him,  threw  him 
aside."  On  cross-examlnatio.i  plaintiff  tes- 
tified that  the  boy  "was  running  Just  as  a 
little  boy  would  start  up  when  he  attempted 
to  run  by  people;  that  when  he  went  by 
me,  I  says,  'We  aren't  to  cross  there.'  but  he 
kept  right  on,  and  at  the  same  time  his 
brother  made  a  grab  for  him."  Again  on 
redirect  examination  he  testified:  "Well,  of 
course,  he  hastened.  He  hastened  by  me.  I 
can't  say  that  he  was  running  as  swift  as  a 
boy  would  run  to  win  a  race,  but  he  did  Just 
like  anybody  when  he  attempted  to  dodge  by 
a  person.  The  first  thing  I  knew  he  flitted 
by  me,  and  was  going  across  the  track." 
Tlie  brother  saw  the  engine  and  the  smoke 
above  the  freight  cars,  and  leallzed  the  dan- 
ger In  which  his  brother  was.  He  also  call- 
ed to  bis  brother  and  warned  him  of  It,  but 
the  boy  continued  in  his  course. 

The  company  bad  posted  three  signs  In 
the  vicinity  warning  people  not  to  cross. 
One  of  those  signs  reads  as  follows:   "No- 


tice. Eallroftd  Grounds.  No  Thoroughfare. 
No  Trespassing  Allowed.  Dangerous." 
Railroad  employes  had  also  repeatedly  warn- 
ed parties  not  to  cross  there,  but  travelers 
persisted  in  doing  so.  The  deceased  had 
never  been  there  before,  had  not  been  invit- 
ed to  go  there,  or  told  by  his  uncle  or  broth- 
er to  go  there.  The  fl  em  an  looked  out  of 
the  cab  and  caught  a  glimpse  of  the  boy  as 
he  was  running  towards  the  track  upon 
which  he  was  switching.  He  did  not  inform 
the  engineer  that  there  was  any  danger.  He 
had  often  seen  boys  run  across  there  before, 
and  testified  that  he  thought  he  had  time  to 
get  across.  The  engineer  was  on  the  op- 
posite side  of  the  cab. 

Counsel  for  plaintiff  conceded  upon  the 
trial  that  it  was  not  the  duty  of  the  com- 
pany to  provide  a  way  for  people  to.  cross 
there,  and  that  they  had  no  right  to  do  so. 
The  declaration  alleges  that  the  boy  "was  a 
bright  strong.  Intelligent,  healthy,  and  ro- 
bust child."  The  evidence  also  shows  that 
he  was  able  to  take  care  of  himself  and 
avoid  danger  on  the  streets  of  Chicago.  His 
brother  testified:  "Q.  Did  you  say  anything 
to  your  brother  about  being  careful,  or  any- 
thing of  that  kind,  give  him  any  caution? 
A.  It  wasn't  necessary  to  caution  him.  He 
was  old  enough  to  take  care  of  himself.  I 
have  seen  him  on  the  streets  at  home,  and 
he  went  out  of  the  way  of  an  approaching 
buggy,  and  I  have  seen  him  do  it  time  and 
again,  automobiles,  and  such  things,  never 
had  any  necessity  for  cautioning  blm."  At 
the  close  of  the  plaintiff's  case  both  parties 
rested,  and  the  court  was  requested  to  di- 
rect a  verdict  for  the  defendant  which  re- 
quest was  denied. 

Argued  before  BLAIR,  C.  J.,  and 
GRANT,  MONTGOMERY,  McALVAY,  and 
BROOKE,  JJ. 

Herbert  R.  Clark,  for  appellant  F.  A. 
Lyon,  for  appellee. 

GRANT,  J.  (after  stating  the  facts  as 
above).  The  defendant  had  performed  its 
entire  duty  to  prevent  parties  crossing  its 
yard  aod  grounds  at  this  place.  It  had 
posted  warning  notices,  and  had  frequently 
notified  travelers  against  crossing  there.  It 
had  provided  a  safe  approach  from  its  tracks 
to  its  depot  and  It  was  the  legal  duty  of 
passengers  to  go  to  and  depart  from  trains 
in  the  way  provided.  Many  trains  were  go- 
ing in  and  out  dally,  both  passenger  and 
freight  and  switching  of  cars  was  contin- 
ually going  on.  The  danger  was  apparent 
A  traveler  choosing  to  depart  from  the  safe 
way  provided  and  taking  a  dangerous  way, 
one  where  he  had  no  right  to  go,  assumea 
all  the  risks  and  dangers  incident  to  the 
work  to  be  done  in  the  ordinary  way. 

Only  in  case  of  gross  negligence  can  the 
defendant  be  held  liable  for  Injury  to  one 
departing  from  the  way  provided  into  one 
not  provided  and  where  he  was  prohibited 
from    going.     PlaiutUTs    counsel,    however. 


Digitized  by  VjOOQ  l€ 


538 


122  NORTHWBSTBRN  BBPOBTEB. 


(MldL 


BtrennonBly  Insists  that  there  was  evidence 
of  groes  negligence.  This  Is  based  solely  np- 
on  the  fact  that  the  fireman  caught  a  gUmpse 
of  the  boy  just  as  he  emerged  from  behind 
the  box  cars,  and  was  almost  upon  the  track, 
and  did  not  notify  the  engineer.  It  Is  quite 
probable  that  if  the  boy  had  not  stopped  and 
turned  around  to  escape,  in  doing  which  he 
fell,  but  had  continued  his  running,  be  would 
have  crossed  in  safety.  Whether  the  boy 
saw  the  approaching  tender  and  stopped, 
or  whether  he  stopped  in  response  to  the 
calls  of  bis  uncle  and  brother  is  a  matter  of 
conjecture.  The  fireman  testified  that  boys 
had  frequently  mn  in  front  of  approaching 
trains  before.  There  is  no  evidence  that 
any  like  accident  had  ever  occurred.  We 
cannot  hold  that  the  fireman  was  guilt} 
of  grossly  Inhuman  conduct  in  not  turning 
and  notifying  the  engineer  tbat  a  boy  was 
trying  to  cross  the  track.  It  Is  no  uncommon 
thing  for  boys  to  run  across  tracks  in  front 
of  approaching  trains,  and  the  evidence 
shows  that  It  was  frequently  done  by  boys 
at  this  place.  If  the  engineers  were  obliged 
to  stop  their  trains  every  time  a  boy  under- 
took to  cross  in  front  of  them.  It  would  serious- 
ly interfere  with  the  running  of  trains.  The 
bell  on  the  engine  was  ringing,  was  heard 
by  others,  and  the  fireman  had  the  right  to 
presume  that  the  boy  heard  it,  and  believed 
he  could  safely  cross  as  also  did  the  fireman. 
Under  these  circumstances,  the  defendant 
cannot  be  held  guilty  of  gross  negligence 
either  in  the  failure  of  the  fireman  to  notify 
the  engineer  or  the  failure  to  keep  a  person 
upon  the  rear  of  the  tender  to  notify  parties 
choosing  to  cross  there.  Defendant  owud 
no  duty  to  travelers  to  station  a  man  at  this 
place  to  prevent  them  from  trespassing,  or 
to  station  a  man  upon  the  rear  of  backing 
trains  to  warn  them  of  their  approach. 

It  was  held  in  Trudell  v.  Grand  Trunk 
By.  Co.,  126  Mich.  73,  85  N.  W.  250,  53  L. 
R.  A.  271,  that  a  railroad  company  was  not 
guilty  of  gross  negligence  In  running  down  a 
boy  seven  years  and  four  months  old  upon 
Its  right  of  way  from  the  fact  that  he  stood 
on  the  track  In  full  view  of  those  in  charge 
of  the  approaching  engine  for  some  two  min- 
utes before  being  struck,  since  the  company's 
agents,  if  they  saw  the  boy,  were  Justified 
in  believing  that  he  would  step  off  the  track 
in  time  to  avoid  the  Injury.  The  same  prin- 
ciple controls  this  case.  There  Is  no  differ- 
ence In  principle  between  a  boy  standing 
upon  the  track  and  one  attempting  to  run 
across  in  front  of  a  train.  We  cannot  hold 
tbat  this  fireman  recklessly  caused  this  boy 
to  be  run  over  on  the  ground  that  be  saw  htm 
In  imminent  danger.  In  the  Trudell  Case 
the  boy  was  held  guilty  of  contributory  neg- 
ligence. If  the  boy  in  that  case  was  guilty 
of  contributory  negligence,  equally  so  was  he 
in  this  case,  ne  was  a  trespasser,  and  for 
some  reason  left  the  company  of  his  guard- 


ians and  rushed  into  danger  which  was  ap- 
parent to  every  one  in  the  vicinity. 

Judgment  reversed,  and  no  new  trial  or- 
dered. 


OASB  T.  GASB. 
(Supreme  Court  of  Midiigan.    Sept  21,  190O.) 

Divorce  (|  124*)— MisconDxror-^ABSKNCB  of 

Coixusion. 

Divorce  dependinfr  on  connubial  wronR,  and 
not  on  mere  incompatibility,  clear  proof  of  mis- 
conduct and  alweDce  of  collusion  is  necessary 
before  a  divorce  will  be  granted  on  the  testi- 
mony of  the  complainant  on  bills  taken  as  con- 
fessed. 

[Ed.  Note.— For  other  cases,  see  Divorce,  Gent. 
Dig.  I  392;    Dec.  Dig.  |  124.*] 

Appeal  from  Circuit  Court,  Oakland  Coun- 
ty, In  Chancery ;  George  W.  Smith,  Judge. 

Bill  for  divorce  by  Jesse  C.'Case  against 
Clara  F.  Case:  From  the  decree  denying  re- 
lief, complainant  appeala    Afiirmed. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKEB.  and  MOORE,  JJ. 

Andrew  L.  Moore^  for  appellant  Perry  & 
Lynch,  for  appellee. 

HOOKER,  J.  This  bill  was  filed  by  the 
husband  against  the  wife  for  divorce,  and 
was  taken  as  confessed,  and  heard  under  a 
stipulation;  an  agreement  being  also  made 
providing  for  the  payment  to  her  of  $2,150 
alimony  contingent  on  complainant's  obtain- 
ing a  decree  of  dIvorc&  lie  records  and  flies 
of  the  court  showed  that  he  had  tieen  pre- 
viously divorced  at  the  suit  of  a  former  wife. 
The  circuit  Judge  caused  the  defendant  to  be 
subpoenaed,  and.ber  testimony  was  taken.  He 
concluded  that  some  of  the  charges  in  the  bill 
were  false,  and  intimates  that  her  refusal  to 
cohabit  with  him  was  due  to  his  expressed 
desire  for  a  divorce.  We  may  add  to  that  the 
fact  that  she  does  not  oppose  the  divorce,  and 
apparently  made  her  testimony  as  nearly 
harmless  to  blm  as  she  could.  We  are  far 
from  certain  that  a  money  consideration  was 
not  the  cause  of  this,  and  that  in  this  sense 
at  least  the  proceeding  was  not  collusive 

The  learned  circuit  Judge  who  saw  and 
heard  the  witnesses  was  In  a  better  situation 
to  Judge  of  the  case  than  we,  and,  while  if  be- 
lieved the  complainant's  testimony  might 
have  Justified  a  decree  in  his  favor,  we  are 
not  BO  sure  that  he  is  so  deserving  as  to  make 
it  Incumbent  upon  us  to  reverse  his  decree. 
The  law  makes  divorce  dependent  upon  con- 
nubial wrong,  not  mere  Incompatibility,  and 
courts  can  only  follow  and  enforce  the  law. 
Owing  to  the  fact  that  in  most  divorce  cases 
the  relations  of  the  parties  have  become  so 
strained  that  there  is  a  mutual  interest  if  not 
a  mutual  desire  that  a  divorce  tie  decreed, 
there  is  frequently  much  difficulty  in  ascer- 
taining the  truth,  and,  so  long  as  the  present 
rifles  of  law  continue,  it  is  In  keeping  with 


•For  other  cum  see  sam*  topic  and  (ecUon  NUMBER  InDcc.  *  Am.  Dig*.  U07  to  data,  ft  Reportar  Indezat 


Digitized  by  LjOOQIC 


Mich.) 


8HEPARD  ▼.  PLATT. 


639 


their  spirit  to  require  dear  proof  of  miscon- 
duct, and  absence  of  collusion  before  granting 
divorces  ai)on  the  testimony  of  the  complain- 
ant on  bills  taken  as  confessed. 
The  decree  la  affirmed. 


8HEPARD  T.  PLATT  et  a). 
(Supreme  Court  of  Michigan.    Sept.  21,  1909.) 

1.  Intoxicating  Liquors  (I  316*)  —  Action 
ON  BoNi>— Injuries  from  TnisD  Person— 
SuinciENCT  OF  Evidence. 

In  an  action  upon  a  liquor  dealer's  t>ond  for 
personal  injuries  alleged  to  have  been  received 
from  an  assault  upon  plaintiff  by  a  person  in 
the  habit  of  becommg  intoxicated,  while  intoxi- 
cated with  liquors  sold  him  bj  the  dealer,  evi- 
dence held  sufficient  to  go  to  the  jury. 

[Kd.  Note. — For  otber  cases,  see  Intoxicating 
Liquors,  Dec  Dig.  i  816.*] 

2.  intoxicatino  liquors  (§  310*)  —  injdbt 
Action  on  Bond— Evidence. 

Evidence  in  an  action  on  a  liquor  dealer's 
bond  for  personal  injuries  from  an  assault  by 
one  in  the  habit  of  getting  drunk,  and  while  in- 
toxicated by  liquor  sold  by  defendant,  held  to 
sustain   a  judE:ment  for  plaintiff. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Dec.  Dig.  |  310.*] 

3.  Trial  (|  114*)— Argument  of  Counsel- 
Scope. 

In  arguing  cases  to  a  jury,  some  latitude 
must  be  given  counsel,  and  where  the  anrument 
is  honestly  made,  and  based  upon  the  testimony, 
the  deductions  drawn  by  counsel  must  be  al- 
lowed to  go  to  the  jury. 

lEd.  Nrtp.— For  other  cases,  see  Trial,  Cent. 
Dig.  H  275-278;    Dec,  Dig.|  114.*] 

Error  to  Circuit  Court,  lyenawee  County; 
John  L.  O'Mealey,  Judge. 

Action  by  John  Sbepnrd  against  Charles 
Piatt  and  others.  Judgment  for  plaintiff,  and 
defendants  bring  error.    Affirmed. 

Argued  before  BLAIR,  C.  J.,  and  MONT- 
GOMERY, HOOKER,  McALVAY,  and 
BROOKE.  JJ. 

Herbert  It.  Clark,  for  appellants.  Smith, 
Baldwin  &  Alexander,  for  appellee. 

McALVAT,  J.  Plaintiff  recovered  a  Judg- 
ment against  defendants  iu  a  suit  brought  un- 
der the  statute,  upon  a  retail  liquor  dealer's 
bond,  wherein  Charles  Piatt  waa  principal 
and  the  other  defendants  were  sureties,  for 
personal  injuries  received  from  an  assault 
made  upon  him  by  Wesley  Kirk,  a  person  In 
the  habit  of  becoming  intoxicated,  while  In- 
toxicated with  liquors  furnished  and  sold 
to  him  by  defendant  Piatt,  his  clerks  and 
agents,  at  bis  place  of  business  in  the  city  of 
Adrian  in  this  state.  In  denying  a  motion 
for  a  new  trial,  the  Judge  presiding  made  a 
statement  of  the  facts  In  the  case  which  Is 
adopted  by  us:  "The  plaintiff  went  to  the 
barroom  in  the  hotel  owned  by  defendant 
Piatt  for  the  purpose  of  securing  a  pint  of 
whisky,  to  be  used  at  his  home  in  the  treat- 
ment of  his  wife,  who  was  then  being  con- 
fined. The  plaintiff  stepped  into  the  bar- 
room and  saw  John  Kirk  standing  by  the 


bar  with  another  man  whom  the  plaintiff  did 
not  know.  The  second  man  was  Wealey  Kirk, 
a  brother  of  John  Kirk.  After  securing  the 
whisky,  the  plaintiff  placed  the  bottle  In  a 
basket  containing  groceries,  which  he  was 
taking  tx>  his  home,  and  started  to  leave  the 
building.  It  appeared  that  the  plaintiff  and 
John  Kirk  had  previously  had  some  dis- 
agreement; that,  as  the  plaintiff  passed  from 
the  barroom  into  the  poolroom,  John  Kirk 
stepped  In  front  of  him  and  engaged  him  in 
a  conversation,  and,  according  to  plaintiffs 
testimony,  be  finally  struck  at  plaintiff;  and 
that  the  plaintiff  held  up  his  arm  with  the 
basket  of  groceries  upon  it  and  attempted  to 
ward  off  the  blow,  and  at  the  same  time  back- 
ed away  from  his  assailant  While  the  plain- 
tiff was  backing  away  from  John  Kirk,  Wes- 
ley Kirk  picked  up  a  blllard  cue  and  struck 
him  from  behind,  over  the  head,  crushing  his 
skull.  The  injury  was  a  very  serious  one. 
The  testimony  showed  that  Wesley  Kirk  had 
no  acquaintance  with  the  plaintiff,  and  did 
not  know  of  the  trouble  between  plaintiff 
and  his  brother  John.  •  •  •  It  was  the 
claim  of  the  plaintiff  that  at  the  time  Wesley 
Kirk  struck  this  blow  he  was  under  the  In- 
fluence of  liquor  purchased  from  defendant, 
and  that  the  defendant  was  liable  for  the 
damages  resulting  because  he  bad  sold  and 
delivered  this  liquor  to  Wesley  Kirk,  who 
was  a  man  In  the  habit  of  becoming  Intoxi- 
cated." Defendants  upon  writ  of  error  ask 
for  a  review  of  the  case  and  a  reversal  of 
the  Judgment  on  account  of  error  committed 
on  the  trial. 

We  will  consider  the  errors  assigned  which 
are  discussed  In  defendants'  brief.  Defend- 
ants contend  that  a  verdict  should  have  been 
Instructed  for  want  of  evidence.  It  appears 
from  the  record  that  the  assault  on  plaintiff 
by  Wesley  Kirk  is  not  a  disputed  fact  in  the 
case.  John  Kirk,  his  brother,  testifies  that 
Wesley  struck  plaintiff.  Two  other  witness- 
es called  by  defendants  testify  that  they  saw 
the  blow  struck.  There  is  also  no  dispute 
but  tbat  the  Injury  was  a  serious  one.  It  is 
admitted  also  that  Kirk  drank  whisky  in 
that  saloon  shortly  before  the  assault.  The 
disputed 'facts  are  that  the  Kirks  were  not 
persons  In  the  habit  of  becoming  Intoxicated, 
that  they  were  not  Intoxicated  on  that  day, 
and  that  the  drinks  they  procured  there  at 
the  time  had  nothing  to  do  with  the  assault 
on  plaintiff.  The  court  would  not  have  been 
justified  In  directing  a  verdict  in  this  case 
for  defendants.  It  was  clearly  a  case  for 
the  jury  to  determine  upon  the  facts. 

The  correctness  of  the  charge  of  the  court 
in  submitting  the  case  to  the  Jury  is  not 
questioned.  The  motion  for  a  new  trial, 
which  was  denied,  was  urged  for  the  reasons 
that  the  verdict  was  against  the  law  and  evi- 
dence, that  it  was  against  the  weight  of  the 
evidence,  and  because  of  prejudicial  argu- 
ment of  plnlntifTs  counsel  to  the  Jury.  We 
have  already  said  that  there  was  evidence  In 


•For  otlier  cases  see  same  topic  and  section  NUMBER  In  Dec  A  Am.  Digs.  1907  to  date,  *  Reporter  Indexei 


Digitized  by  LjOOQIC 


540 


122  NORTHWESTERN  REPORTER. 


(Mich. 


the  case  to  Bubmlt  to  the  Jury,  and  we  add 
that  the  verdict  of  the  jury  was  not  In  our 
opluion  against  the  weight  of  the  eyldence. 
We  have  examined  the  testimony  admitted  to 
which  defendants  except,  and  do  not  find 
that  it  was  erroneously  allowed.  No  ques- 
tion is  Involved  of  sufiiclent  importance  lo 
warrant  giving  It  extended  attention. 

The  remaining  matter  which  requires  at- 
tention relates  to  the  argument  of  plaintiff's 
counsel.  The  matter  was  presented  to  the 
learned  trial  Judge  on  the  motion  for  a  new 
trial.  In  his  written  findings  giving  his  rea- 
sons for  denying  It  he  said,  as  to  this  mat- 
ter: "This  is  not  all  the  argument,  and  some 
of  the  part  given  Is  removed  from  the  con- 
text. I  heard  the  argument,  and  have  read 
that  portion  of  it  set  up  In  the  motion,  and 
while  it  was  a  very  strong  argument,  and 
one  calculated  to  move  the  Jury  to  render  a 
verdict  In  favor  of  the  plaintiff,  I  do  not 
think  it  was  unwarranted,  or  that  it  consti- 
tutes a  sufficient  ground  for  setting  aside  the 
verdict  In  the  case;  •  •  •  but,  so  long 
as  arguments  to  Juries  are  to  be  made,  some 
latitude  must  be  given  counsel,  and  where 
the  argument  is  honestly  made,  and  based 
upon  the  testimony,  the  deductions  and  con- 
clusions drawn  by  counsel  must  be  allowed 
to  go  to  the  Jury."  In  accepting  this  conclu- 
sion of  the  court,  we  take  into  consideration, 
as  he  did,  the  amount  of  the  verdlcl  found 
by  the  Jury.  This  was  an  aggravated  and  un- 
warranted attack  upon  plaintiff  by  a  man  he 
had  never  seen  before,  and  who  was,  with- 
out provocation  to  his  assailant,  knocked 
down  with  a  billiard  cue  which  crushed  the 
skull  on  the  side  of  his  head.  The  verdict 
of  $1,400  returned  by  the  Jury  was  not  a 
large  one  and  indicates  that  the  Jury  was 
not  prejudiced  by  tne  argument  of  counsel. 

The  Judgment  will  be  affirmed. 


DIME  SAVINGS  BANK  v.  FLETCHER  et  al. 

(Supreme  Court  of  Michigan.     Sept.  !?1,  1909.) 

Tbubts  (8  95*)— Constructive  Trttst— Pbop- 
EBTv  Obtained  bt  Fraud— Misbefbesen- 
tation. 

One  F.,  a  director  of  the  K.  Company,  and 
also  secretary  of  the  F.  Company,  which  owned 
stock  in  the  K.  Company,  signed  a  report  to  the 
Secretary  of  State  as  to  the  financial  condition 
of  the  K.  Company.  Thereafter  the  F.  Com- 
pany sold  the  stock  to  the  K.  Company,  which, 
to  pay  therefor,  secured  from  complainant  bank, 
which  relied  in  part  on  statements  of  com- 
mercial agencies  based  on  the  report  to  the  Sec- 
retary of  State,  a  loan,  depositing  the  stock  as 
collateral.  The  representations  in  the  report 
were  absolutely  false,  and  shortly  after  the  loan 
matured  the  K.  Company  became  insolvent  and 
the  stock  became  worthless.  Held,  that  com- 
plainant was  entitled  to  have  the  transaction 
rescinded  and  the  proceeds  of  the  loan  declared 
a  trust  fund  in  the  hands  of  the  F.  Company; 
it  bein^  immaterial  that  the  report  on  which 
complainant  relied  was  not  made  directly  to  the 


commercial  agencies,  but  to  the   Secretary  of 
State. 

[EM.  Note.— For  other  cases,  see  Trusts,  Cent 
Dig.  §i  145-147;    Dec.  Dig.  S  95.*] 

Appeal  from  Circuit  Court,  Wayne  Coun- 
ty, in  Chancery;   Morse  Rohnert,  Judge. 

Bill  by  the  Dime  Savings  Bank  against 
Allan  M.  Fletcher  and  others.  There  was  a 
decree  dismissing  the  bill,  and  complainant 
appeals.    Reversed. 

Argued  before  MONTGOMERY.  OSTRAN- 
DER,  HOOKER,  McALVAT,  and  BROOKE, 
JJ. 

Beaumont,  Smith  &  Harris  (A.  C.  Stell- 
wagen,  of  counsel),  for  appellant.  Rnssel, 
Campbell,  Bulkley  &  Ledyard,  for  appellees. 


BROOKE,  J.  The  bill  in  this  case  la  filed 
to  rescind  and  cancel  a  loan  of  $15,000 
fraudfilently  procured  to  be  made  November 
27,  1905,  by  the  complainant  to  George  F. 
Kenny;  also,  to  cancel  the  notes  given  for 
said  loan  and  to  cancel  an  assignment  of 
certain  certificates  of  corporate  stock  de- 
posited as  collateral  therefor;  also,  to  de- 
clare the  proceeds  of  the  loan  a  trust  fund 
In  the  bands  of  all  defendants  who  receiv- 
ed it,  and  to  obtain  an  accounting  therefor 
and  repayment  thereof;  also,  for  discovery 
by  defendants  Allan  M.  Fletcher  and  the 
Fletcher  Paper  Company  as  to  which  of 
them  finally  received  the  money,  or,  if  both 
received  It,  In  what  proportion.  The  defend- 
ants Allan  M.  Fletcher  and  the  Fletcher  Pa- 
per Company  filed  a  Joint  and  several  an- 
swer denying  the  material  averments  of  the 
bill.  The  defendant  Beach  filed  an  answer 
admitting  some  allegations  of  the  bill  and 
left  complainant  to  its  proofs  as  to  the  re- 
mainder. A  decree  was  entered  dismissing 
the  bill,  from  which  decree  complainant  ap- 
peals. 

The  facts  Involved  In  controversy  are,  in 
brief,  as  follows:  Prior  to  November  14, 
1005,  the  Fletcher  Paper  Company  of  Alpena 
was  the  owner  of  $15,000  par  value  of  the 
stock  of  George  F.  Kenny  Paper  Company  of 
Detroit.  The  Kenny  Paper  Company  was 
also  acting  as  selling  agent  for  the  Fletcher 
Paper  Company  in  marketing  its  products. 
The  current  Indebtedness  between  the  two 
companies  varied  from  month  to  month,  and 
the  relations  between  the  two  companies 
were  not  entirely  satisfactory  to  the  Fletch- 
er Paper  Company  in  November,  1905.  K«J- 
ny  was  slow  in  making  remittances  and  set- 
tlements for  the  various  papers  shipped  to 
his  company  by  the  Fletcher  Paper  Compa- 
ny. Mr.  H.  M.  Campbell,  counsel  for  the 
Fletcher  Paper  Company,  advised  It  that  it 
would  be  wise  to  Investigate  and  see  how 
the  Kenny  Paper  Company  stood.  Conse- 
quently one  Victor,  the  treasurer,  and  Allan 
M.  Fletcher,  the  secretary,  of  the  Fletoher 
Paper  Company,  on  November  14, 1905,  came 
from  Alpena  to  Detroit  for  the  purpose  of 


•For  other  caiei  im  uma  topic  mi  secUoa  NUMBER  In  Dae.  A  Am.  Digs.  U07  to  date.  *  Reporter  Indezee 


Digitized  by  VjOOQ  l€ 


Mich.) 


DIMK  SAVINGS  BANK  v.  FLETCHER. 


641 


making  such  inquiry.  They  went  tQ  the  of- 
fice of  the  Kenny  Paper  Company  and  took 
up  with  Kenny  the  general  conditions  of  bis 
business,  and  during  the  conference  H.  M. 
Campbell,  their  counsel,  was  called  In.  They 
Insisted  upon  an  examination  of  the  books 
of  the  Kenny  Paper  Company,  which  Mr. 
Kenny  refused  to  permit,  giving  various 
evasive  reasons  why  such  au  examination 
could  not  at  that  time  be  made.  Finally 
Kenny  stated  that.  If  the  Fletcher  Paper 
Company  did  not  like  the  way  he  ran  the 
business,  he  would  buy  its  stock  at  par,  |15,- 
000,  letting  the  Fletcher  Paper  Company 
collect  a  13,000  dividend,  and  that  be  would 
sell  the  stock  to  some  other  people  In  the 
paper  business.  After  some  negotiations 
Kenny  agreed  to  add  the  amount  of  the 
dividend  to  the  purchase  price  of  the  Fletch- 
er Paper  Company  stock,  making  the  entire 
price  118,000.  H^ereupon  an  agreement  was 
entered  into  between  the.  Fletcher  Paper 
Company  and  Kenny  to  the  effect  that  he 
should  pay  $18,000  for  the.  1,500  shares  of 
stock  held  by  that  company,,  on  or  before 
November  26,  1905.  On  Monday,  the  27th 
day  of  November,  Kenny  sent  over  to  Mr. 
Campbell  a  certified  check  for  $18,000  and 
received  in.  return  the  Fletcher  Paper  Com- 
pany stock  In  the  Kenny  Paper  Compa- 
ny Indorsed  In  blank.  It  appears  that  be- 
tween the  14tb  day  of  November  and  the 
27tb  Kenny  made  application  to  the  com- 
plainant for  a  loan  of  $15,000  upon  his  In- 
dividual note  for  that  amount  to  be  secured 
by  the  $15,000  of  stock  in  the  Kenny  Paper 
Company  as  collateral.  This  application 
was  refused  by  the  complainant  upon  the 
ground  that  the  Kenny  Paper  Company  was 
a  close  corporation  and  its  stock  not  read- 
ily salable  upon  the  open  market.  The  com- 
plainant demanded,  in. addition  thereto,  an 
Indorser,  which  Indorser  Kenny  secured  in 
the  person  of  defendant  Beach.  After  in- 
yestlgatlon  of  the  commercial  reports  as  to 
the  flnasci^l  standing  of  tbe  Kenny  Paper 
Company  and  Beach,  the  complainant  ac- 
cepted the  loan,  and  on  November  2Tth  Is- 
sued to  Kenny  its.  cashier's  check  for  $15,- 
000,  payable  to  his_  order,  receiving  therefor 
two  promissory  notes  of  $7,500,  each  pay- 
able, respectively.  In  two  months  and  in 
four  months,  indorsed  by.  Beach,  and  later 
the  $15,000  par  value  of  Kenny  Paper  Com- 
pany stock  Indorsed  In  blank  was  deposited 
as  collateral  therefor  with  complainant  At 
tbe  time  of  negotiating  the  said  loan,  Ken- 
ny represented  to  tbe  olficers  of  the  com- 
plainant that  the  stock  he  was  about  to 
purchase  was  really  worth  much  more  than 
par,  to  wit,  about  $4,000,  that  the  business 
of  the  Kenny  Paper  Company  was.  prosper- 
ous, and  that  it  had  a  large  surplus  of  as- 
sets over  liabilities.  These  representations 
were  shown  upon,  the  trial  to  have  been  ab- 
solutely false.  The  notes  were  not  paid  at 
maturity,  and  on  the  following  January  the 
Kenny   Paper   Company  became   insolvent, 


and  its  assets  were  wholly  Insufficient  to 
meet  its  commercial  liabilities,  so  that  Its 
capital  stock  was  of  no  value  whatever. 
Defendant  Allan  M.  Fletcher,  besides  being 
the  secretary  of  the  Fletcher  Paper  Com- 
pany, was  the  vice  president  of  the  Kenny 
Paper  Company,  and  as  such  bad  signed  an 
annual  report  of  the  George  F.  Kenny  Pa- 
per Company,  which  was  filed  May  6,  1904, 
in  which  it  was  represented  that  he  (Allan 
M.  Fletcher)  was  the  owner  of  $15,000  par 
value  of  the  stock  of  said  George  F.  Kenny 
I'aper  Company,  that  the  amount  of  capital 
actually  paid  in  in  cash  was  $80,000,  and  that 
the  then  net  value  of  Its  assets  over  liabili- 
ties was  upwards  of  $70,000.  The  complain- 
ant failed  to  protest  the  notes  at  maturity, 
thereby  releasing  defendant  Beach,  but 
thereafter  Beach  entered  into  a  contract  un- 
dertaking to  pay  the  same  and  arranged 
with  the  bank  to  commence  the  present  suit 
in  Its  name  but  for  his  benefit  Tbe  suit 
was  launched  in  the  name  of  the  bank  by 
counsel  for  Beach;  but  Beach  himself  after- 
wards became  insolvent,  and  it  has  been 
prosecuted  on  behalf  of  the  bank. 

At  the  time  of  the  hearing  In  the  court  be- 
low, the  complainant  showed  the  false  and 
fraudulent  representations  of  Kenny  in  ref- 
erence to  the  value  of  the  stock,  and  that  in 
making  the  loan  it  had  relied  In  part  upon 
said  false  representations.  It  showed  fur- 
ther that  in  part  it  relied  upon  the  statement 
of  the  commercial  agencies  which  gave  the 
Kenny  Paper  Company  a  rating  of  from 
$75,000  to  $100,000;  and.  funher,  that  said 
rating  was  based  In  part  upon  tbe  report 
already- noticed  of  said  company  filed  with 
tbe  Secretary  of  State.  It  further  showed 
that  the  said  report  was  Incorrect  In  several 
particulars,  especially  as  to  the  amount  of 
capital  paid  in  in  cash. .  The  defendants  of- 
fered the  testimony  of  Victor,  treasurer  of 
the  Fletcher  Paper  Company,  and  of  H.  M. 
Campbell,  Its  counsel,  to  the  effect  that  tbe 
defendant  had  no  knowledge  of  the  real 
financial  condition  of  the  Fletcher  Paper 
Company  and  made  the  sale  of  the  $15,000 
of  stock  In  question  in  the  ordinary  course  of 
business.  The  defendant  Allan  M.  Fletcher 
was  in  court  during  the  hearing  of  tbe  case 
below,  but  was  not  placed  upon  the  stand 
by  either  the  domplalnant  or  the  defendants. 
The  third  ground  urged  by  the  complainant 
as  the  reason  why  It  should  prevail  Is  as 
follows:  "Because  the  $15,000  was  loaned 
to  Kenny  In  part  reliance  upon  the  suppos- 
ed truth  of  the  Bradstreet  rating  of  the 
Kenny  Paper  Company,  which  rating  was 
based  upon  an  untrue  financial  statement 
signed  by  Allan  M.  Fletcher."  Other 
grounds  for  relief  are  urged,  but  the  fore- 
going Is  the  only  one  considered  by  the 
cojirt 

As  before  noted,  the  report  set  out  that  the 
capital  stock  of  $80,000  was  paid  in  In  cash- 
The  record  shows  that  in  fact  it  was  paid  as 
follows :  Two  post-dated  checks  aggregating 


Digitized  by  VjOOQ  l€ 


542 


122  KORTHWESTERN  REPORTER. 


(Mich. 


$7,500 ;  notes  of  snbscrlbera  aggregating  $22,- 
600 ;  $25,000  was  paid  by  the  transfer  of  the 
physical  assets  of  the  paper  business  conduct- 
ed by  Kenny  and  $25,000  by  alleged  good  will 
of  that  business.  Subsequently  $7,500  of  the 
$22,500  notes  was  paid;  but  when  the  com- 
pany became  bankrupt  its  reported  assets 
consisted  of  $15,000  of  the  notes  originally 
given  for  capital  stock.  $7,500  of  these  notes 
were  the  notes  of  Kenny  and  were  worthless. 
$5,000  was  the  note  of  one  Armstrong,  and 
was  given  upon  condition  that  it  should  be 
paid  only  out  of  the  earnings.  It  clearly  ap- 
pears from  the  record  that  the  rating  of  the 
Kenny  Paper  Cknnpany  given  by  the  Brad- 
street  Company  was  based  upon  this  report 
This  report  was  obviously  false  and  mislead- 
ing. It  was  signed  by  Allan  M.  Fletcher  as 
one  of  its  directors  and  certified  to  by  him 
as  being  "a  true  statement  of  the  condition 
of  the  company,  together  with  the  names  and 
addresses  of  the  stockholders  and  the  num- 
t»er  of  shares  held  by  each."  We  do  not  at- 
tach much  Importance  to  the  fact  that  the 
report  stated  that  Allan  M.  Fletcher  was  the 
owner  of  the  1,500  shares  of  stock  in  the 
Kenny  Paper  Company;  whereas,  In  fact,  the 
Fletcher  Paper  Company  was  the  owner  of 
1,200  shares  of  the  stock  and  300  shares  still 
stood  In  the  name  of  Kenny,  It  being  appar- 
ent from  the  record  that  the  entire  1,500 
shares  were  owned  beneficially  by  the  Fletch- 
er Paper  Company,  and  that  the  acts  of  Al- 
lan M.  Fletcher  In  the  premises  were  per- 
formed by  him  as  Its  agent  and  for  its  bene- 
fit for  which  it  should  be  held  accountable. 
Representations  made  by  a  person  in  business 
to  a  commercial  agency  are  presumed  to  have 
been  made  for  the  purpose  of  obtaining  cred- 
it, and  we  are  of  opinion  that  the  fact  that 
the  representations  in  the  case  at  bar  were 
made  in  the  report  to  the  Secretary  of  State, 
and  thus  indirectly  to  the  commercial  agency, 
1b  of  no  consequence. 

See '  Emerson  t.  Detroit  Steel  &  Spring 
Company,  100  Mlcb  127,  58  N.  W.  659,  where 
this  court  said:  "It  sufficiently  appears  that 
Dunn's  reports  were  based  upon  the  sworn 
reports  of  the  company  to  the  Secretary  of 
State,  that  both  the  plaintiffs  In  attachment 
extended  credit  ni>on  the  strength  of  these 
reports,  and  we  are  satisfied  tliat  these  state- 
ments of  the  company  were  false  and  could 
have  been  made  with  no  other  purpose  than 
tliat  of  establishing  a  false  credit."  In  Sll- 
berman  v.  Munroe,  104  Mich.  352,  62  N.  W. 
555,  this  court,  In  considering  the  same  ques- 
tion, used  the  following  language:  "The  re- 
port (to  the  Secretary  of  State)  was  very 
clearly  Intended  as  a  means  of  furnishing  in- 
formation to  those  dealing  with  the  creditors, 
and  when  parties  deal  with  the  corporation 
upon  the  strength  of  snch  report,  acquired 
through  the  usual  agencies,  they  have  the 
right  to  rely  npon  the  fairness  and  •honesty 
of  the  statement."  In  Genesee  (Jounty  Sav- 
ings Bank  v.  Michigan  Barge  Company,  52 
Mich.  170, 17  N.  W.  793,  this  court  said :  "We 


think  a  person  famishing  information  to  a 
commercial  agency  as  to  Us  means  and  pe- 
cuniary responsibility  is  to  be  presumed  to 
have  done  so  to  enable  the  agency  to  com- 
municate the  same  to  persons  Interested  for 
their  guidance  in  giving  credit  to  him,  and. 
so  long  as  such  intention  existed  and  the  rep- 
resentations reached  the  persons  for  whom 
they  were  intended,  it  is  immaterial  whether 
they  passed  through  a  direct  agency  or  oHier- 
wise,  provided  they  were  reported  by  the 
agency  as  made  by  the  party."  In  Mooney 
V.  Davis,  75  Mich.  188,  42  N.  W.  802,  13  Am. 
St  Rep.  425,  the  court  said:  "We  further 
think  the  testimony  tending  to  show  defend- 
ant Dudley's  approval  of  these  statements 
were  so  recent  before  the  sale  In  question 
that  he  must  be  held  bound,  or,  at  least  If 
there  had  been  any  material  change  In  bis 
financial  standing  after  the  statemRntH  were 
given,  he  should  have  notified  the  agendes 
to  whom  the  information  was  given,  that  per- 
sons with  whom  he  had  commercial  dealings 
should  not  be  misled  as  to  the  extent  of  the 
credit  they  might  give.  These  agencies  have 
become  almost  a  necessity  Id  the  transaction 
of  a  commercial  business,  and  the  rules  by 
which  they  are  governed  and  the  information 
they  gather  and  impart  are  well  known  to 
business  and  commercial  men  generally,  and 
such  information  is  perhaps  more  frequoitly 
relied  upon  among  such  men  than  that  ob- 
tained from  all  other  sources,  and  the  conrts 
cannot  shnt  their  eyes  to  these  facts,  and  the 
changes  In  Dudley's  business  relations  we  do 
not  think  were  such  as  affect  the  question 
now  under  consideration.  The  responsibility 
and  the  amount  of  assets  over  liabilities 
available  for  business  purposes,  or  from 
which  money  conid  t>e  realized  for  the  ex- 
igencies of  business,  were  the  important  qnes- 
tlons  presented  to  the  creditors,  and  upon 
which  they  made  sale  of  their  property." 
See,  also,  Hindiman  t.  Weeks,  86  Mich,  f&i, 
48  N.  W.  790. 

The  record  does  not  disclose  nnder  what 
circumstances  the  signature  of  Allan  M. 
Fletcher  was  obtained  to  the  false  report  to 
the  Secretary  of  State;  nor  under  the  facts 
in  this  case  is  it  important  whether  the  nn- 
tmthfnl  representations  contained  In  said 
report  were  made  by  bim  with  knowledge  of 
their  falsity  or  a  careless  disregard  as  to 
their  truth  or  falsity.  Such  Information  la 
demanded  by  the  law  from  corporate  officers 
for  the  very  purpose  of  affording  the  general 
public,  or  that  portion  of  it  abont  to  enter 
Into  contractual  relations  with  sudi  corpora- 
tion, with  accurate  and  lionest  information 
respecting  its  financial  standing.  It  must  be 
presumed  that  all  officers  in  making  such  rep- 
resentations know  this  fact  Stripped  of  all 
details,  the  situation  is,  in  brief,  as  follows: 
The  complainant  relying  in  part  upon  the 
false  statements  contained  in  the  report  to 
the  Secretary  of  State,  made  by  an  officer  of 
the  defendant  the  Fletcher  Paper  Company, 
parted  with  fl5,000  and  received  notUng  la 


Digitized  by  VjOOQ  l€ 


Micb.) 


8HEPFKR  V.  FLEISCHER. 


643 


retnm;  whereas,  the  Fletcher  Paper  Com- 
pany, as  a  result  of  the  transaction,  is  the 
possessor  of  |15,000,  for  whicb  it  parted  with 
notlilng  of  value. 

The  decree  of  the  court  below  will  be  re- 
versed, and  a  decree  will  be  entered  In  this 
court  against  the  defendant  the  Fletcher  Pa> 
per  Company  In  accordance  with  the  prayer 
of  the  bill  of  complaint 


BUSS   et  al.  t.   TTLER  et  al.     (CAIUiB 

BROS.   CO.  et  aL,  Garnishees). 
(Supreme  Court  of  Michigan.    Sept  21,  1909.) 

Appeal  and  Ebbob  (i  S54*)— Tuck  or  Tak- 
UfO  Pboceedinos. 

A  writ  of  error  to  review  a  Judgment 
aeainst  a  Kamishee,  issued  nearly  three  ^ears 
alter  the  judgment,  will,  on  motion,  be  dismissed 
because  not  issued  in  time,  notwithstanding  a 
stipulation  between  the  parties  and  an  order  of 
court  entered  thereon,  especially  where  it  was 

Provided  that  neither  part:^  should  use  the  stipn- 
ition  as  evidence  vi  waiver  of  rights  in  the 
litigatiim. 

[EM.  Note. — For  other  cases,  see  Appeal  and 
Error.  Cent  Dig.  {  1293;   Dec.  Dig.  |  354.*] 

Action  by  Allaseba  H.  Bliss  and  another, 
executors  of  Aaron  T.  Bliss,  deceased, 
against  Silas  W.  Tyler  and  others,  principal 
defendants,  in  which  the  Caille  Bros.  Com- 
pany,  Wilber  W.  Steele,  and  another,  co- 
partners, doing  business  as  tbe  Caille  Com- 
pany, and  WUber  W.  Steele  and  others,  -were 
g^amlshees.  There  was  a  judgment  against 
the  principal  defendants  and  against  the 
garnishee  defendants,  and  the  latter  sep- 
arately bring  error.    Dismissed. 

See,  also,  121  N.  W.  292. 

Argued  before  BLAIR,  GRANT,  MOORE, 
McALVAY,  and  BROOKE,  JJ. 

John  A.  McKay  (William  J.  Gray,  of 
counsel),  for  the  motions.  Jonathan  Pal- 
mer, Jr.  (George  W.  Weadock  and  Elbrldge 
F.  Bacon,  of  counsel),  opposed. 

MOORB,  J. .  nils  Is  ft  motion  made  to 
dismiss  the  writs  of  error  Issued  In  the 
above  proceedings.  The  litigation  has  been 
before  this  court  before.  A  reference  to 
Che  opinions  In  Bll%  v.  Caille  Bros.  Com- 
pany, 149  Mich.  601,  113  N.  W.  317,  Caille 
Bros.  Company  v.  Circuit  Judge,  165  Mich. 
4S0,  120  N.  W.  6,  and  Bliss  et  aL  v.  CaUle 
Bros.  O.,  121  N.  W.  756,  will  aid  in  an  un- 
derstanding of  the  case.  The  following  data 
frill  also  be  useful:  Principal  suit  com- 
menced December  28,  1906.  Writ  of  gar- 
nishment issued  February  7,  1906.  Gar- 
nishee defendants  served  February  9  and 
23,  1906.  Writ  of  garnishment  returnable 
February  27, 1906.  Default  uf  garnishee  de- 
fendants entered  February  28,  1906.  De- 
fault of  principal  defendant  entered  June 
80,  1906.  Judgment  against  principal  de- 
fendant entered  July  3,  1906.  Judgment 
against  garnishee  defendants  entered   Sep- 


tember 12,  1006.  Motions  of  garnishee  de- 
fendants to  open  their  defaults  and  vacate 
judgments  against  them  filed  November  27, 
December  6,  and  December  18,  1906. 

The  writs  of  error  which  It  Is  sought  to 
dismiss  were  Issued  May  21,  1909.  It  Is  con- 
tended that  defendants  got  some  rights  with 
reference  to  the  issuance  of  the  writs  of  er- 
ror by  virtue  of  a  stipulation  entered  into 
by  the  parties  and  an  order  of  court  entered 
which  was  based  thereon.  A  reference  to 
the  stipulation  and  order  refutes  the  claim 
of  counsel,  for  it  is  provided  therein  "that 
this  stipulation  shall  In  no  wise  affect  the 
rights  or  claims  of  either  party  to  said  litiga- 
tion with  regard  to  matters  of  substance  or 
matters  of  procedure^  neither  party  being 
at  liberty  to  make  any  use  of  the  stipula- 
tion as  evidence  of  the  waiver  of  rights 
claimed  In  or  arising  out  of  the  litigation." 
The  defendants  seek  by  the  course  now 
taken  to  have  writs  of  error  Issued  nearly 
three  years  after  Judgment  remain  In  this 
court,  and  to  have  the  cases  heard  therein. 
This  cannot  be  done.  Buckley  v.  Sutton, 
38  Mich.  1;  Caille  Bros.  Co.  v.  Circuit 
Judge,  165  Mich.  483,  120  N.  W.  8,  and  cases 
cited;  Bliss  et  aL  t.  CalUe  Bros.  Co.,  121 
N.  W.  766. 

Motion  to  dismiss  Is  granted. 


SHEFFER  V.  FLEISCHER. 
(Supreme  Court  of  Michigan.     Sept  21,  1909.) 

1.  Appeal  and  Ebbob  (|  927*)  —  Review  — 
Pbesuuphonb. 

Where  plaintiff  appeals  on  the  ground  that 
the  trial  court  should  have  directed  a  verdict 
in  his  favor,  the  question  must  be  disposed  of 
on  that  version  of  the  testimony  most  favorable 
to  defendant. 

(Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  |  3748;   Dec.  Dig.  i  927.»] 

2.  BrLLB  and  Notes  <]  63*)— Dbuvebt. 

Where  before  signing  an  order  for  goods, 
defendant  signed  certain  notes  for  the  purchase 
price,  and  wnile  they  lay  on  a  counter,  and  dur- 
ing defendant's  temporary  absence,  the  seller's 
agent  took  them,  there  was  no  delivery,  and  de- 
fendant was  not  liable. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  {  96;  Dec.  Dig.  {  63.*] 

Appeal  from  Circuit  Court,  Charlevoix 
County,  In  Chancery;  Frederick  W.  Mayne^ 
Circuit  Judge. 

Action  by  Allen  Roswell  Sheffet  against 
A.  B.  Fleischer.  Judgment  for  defendant 
and  plaintift  appeals.    Affirmed. 

Argued  before  OSTRANDER,  HOOKER, 
MOORB,  McALVAY,  and  BROOKE,  JJ. 

J.  M.  Harris,  for  appellant  Lisle  Shana- 
han  (Halstead  &  Halstead,  of  counsel),  for 
appellee. 

HOOKER,  J.  The  undisputed  evidence 
shows  that  six  notes,  bearing  the  genuine 
signatures  of  the  defendant  as  maker,  In 
suit  in  this  case,  came  to  the  hands  of  the 


•For  otbar  euci  iM  Mms  toplo  and  Mctloa  NUMBER  in  D«c.  &  Am.  Diss.  1907  to  data,  *  Reportsr  Indexai 


Digitized  by  VjOOQ  l€ 


544 


122  NORTHWESTERN  REPORTER. 


(Micb. 


plaintiff  as  a  bona  fide  purchaser,  for  valae. 
Xlie  defense  made  is  that  the  notes  made 
were  not  delivered  to  the  payee  or  any  oth- 
er person.  The  Jury  found  a  verdict  for 
the  defendant,  and  the  plaintiff  has  ap- 
pealed. 

.  The  transaction  Is  in  dispute,  and,  as 
plaintiff  has  appealed  upon  the  ground  that 
the  circuit  Judge  should  have  directed  a  ver- 
dict in  his  favor,  vre  must  dispose  of  the 
question  upon,  that  version  of  the  testimony 
most  favorable  to  the  defendant.  It  is,  in 
substance,  that  one  Hirschberg  came  into 
hi9  store  and  attempted  to  sell  him  some 
optical  goods,  representing  the  LeMalre  Op- 
tical Company,  of  which  he  testified  that  he 
was  treasurer  and  authorized  to  negotiate 
and  indorse  promissory  notes  owned  by  It 
They  practically  agreed  orally  upon  an  ar- 
rangement, which  Hirschberg  had  or  was 
to  put  in  the  forin  of  a  contract,  but  which 
was  not  signed  by  defendant.  The  defend- 
ant was  to  order  certain,  goods;  but  defend- 
ant says  that  he  had  not  signed  the  order. 
He  had  signed  the  notes,  howeva*,  and  they 
lay  on  the  showcase  or  counter,  and  Hirsch- 
berg was  to  make  a  copy  of  the  order  for 
the  defendant.  The  defendant  was  called 
away  to  wait  on  a  customer,  whereupon,  in 
his  absence,  Hirschberg  took  possession  of 
all  of  the  papers  and  left  the  store.  There- 
upon defendant  Immediately  wrote  the 
payee  repudiating  the  transaction,  and  later 
refused  to  receive  the  goods. 

The  only  question  in  the  case  Is  whether  a 
verdict  should  have  been  directed  for  the 
plaintiff.  The  learned  circuit  Judge  left  but 
one  question  to  the  Jury,  viz.,  whether  there 
had  been  a  delivery  of  the  note,  and  ob- 
viously the  Jurors  found  that  there  was 
not  Plaintiff's  contention  here  is  that  by 
leaving  his  signed  notes  on  the  counter  he 
placed  it  in  the  power  of  Hirschberg  to  pur- 
loin and  negotiate  them.  We  think  the  case 
within  the  rule  laid  down  in  Burson  v. 
Huntington,  21  Mich.  415,  4  Am.  Rep.  497; 
Cresslnger  v.  Dessenburg,  42  Mich.  583,  4 
N.  W.  2G9;  Laprad  v,  Sherwood,  79  Mich. 
625,  44  N.  W.  943;  Portsmouth  Sav.  Bank 
v.  Ashley,  91  Mich.  681,  52  N.  W.  74,  30  Am. 
St  Rep.  511. 

The  Judgment  is  affirmed. 


SIMON  V.  SIMON'S  ESTATE. 

(Supreme  Court  of  Michigan.     Sept  21,  1909.) 

1.  Descent    and    Distbibtttion    (|    68*)  — 
RionTs  or  Expectant  Heibs. 

The  property  of  one  dving  intestate  goes  by 
operation  of  law  by  distribution  or  inheritance 
to  certain  persons  in  certain  shares,  independent 
of  the  wishes  or  actions  of  the  persons  ap- 
pointed by  law  to  take  it,  and.  until  the  death 
of  the  ancestor,  the  heir  as  heir  or  dlstrihutee 
has  no  interest  In  the  estate. 

[Ed.  Note.— For  other  cases,  see  Descent  and 
Distribution,  Cent  Dig.  §  206;  Dec.  Dig.  i  68.*] 


2.  Descent  and  Distbibtttion  (5  70*)  — 
RioHTS  OF  Ueibs  and  Distbibutees  —  Re- 
lease. 

At  common  law  a  release  by  a  child  of  an 
Interest  in  the  estate  of  his  parent  made  during 
the  life  of  the  parent  was  inoperative  because 
all  interest  in  the  estate  was  then  in  the  parent, 
but  in  the  absence  of  statute,  the  heir  could 
during  the  lifetime  of  the  ancestor  bar  his  right 
to  a  share  in  the  estate  by  contract  or  covenant 
not  to  claim  the  interest  when  it  vested. 

[Ed.  Note. — For  other  cases,  see  Descent  and 
Distribution,  Cent  Dig.  I  213 ;  Dec  Dig.  {  70.*] 

3.  Descent  and  Distbibution  (|  106%*)  — 
Rights  or  Heibs  and  Dis^^Jibutees— Re- 
I.EA8B— Advancements. 

Under  Comp.  Laws  1897,  K  9069-9074« 
providing  that  advancements  shall  be  considered 
as  a  part  of  the  estate  of  the  intestate,  and  that 
if  the  amount  of  the  advancements  shall  ezceea 
the  share  of  the  heir,  he  shall  be  excluded  from 
any  further  portion  in  the  distribution  of  the 
estate,  and,  if  the  amount  so  received  shall  be 
less  than  bis  share,  he  shall  be  entitled  to  as 
much  more  as  will  give  him  his  full  share  of 
the  estate,  etc.,  forming  a  part  of  the  statute 
governing  the  devolution  of  estates,  an  heir  of 
full  age  may  accept  from  his  ancestor  presently 
as  an  advancement  his  full  share  of  the  p^tRte 
of  the  ancestor,  and  the  probate  court,  author- 
ized by  section  9457  to  determine  all  questions 
as  to  advancements,  may  give  effect  to  a  re- 
ceipt given  by  an  heir  to  his  ancestor  acknowl- 
edging the  receipt  of  a  specified  sum  under  an 
agreement  that  the  same  shall  be  in  full  for 
his  distributive  share  out  of  the  estate  whatever 
the  same  may  be,  and  adjudge  that  the  heir  is 
not  entitled  to  any  interest  in  the  estate. 

[Ed.  Note. — For  other  cases,  see  Descent  and 
Distribution,  Cent  Dig.  t  213;  Dec.  Dig.  f 
106%.*] 

Case  Made  from  Circuit  Court,  Kent  Coun- 
ty;  Willis  B.  Perkins,  Judge. 

In  the  matter  of  the  estate  of  Joseph  Si- 
mon, deceased.  From  a  Judgment  of  the  cir- 
cuit court  aflSrming  a  Judgment  of  the  pro- 
bate court  barring  Mathias  Simon  from  any 
Interest  in  the  estate  of  the  deceased,  he  ap- 
peals.   Affirmed. 

On  June  29,  1874,  the  day  that  Mathias 
Simon  was  21  years  old,  his  father,  Joseph 
Simon,  paid  to  him  $1,000,  and  Mathias  exe- 
cuted and  delivered  to  his  father  a  writing 
here  set  out:  "Byron,  Kent  County,  Michi- 
gan, June  29th,  1874.  I,  Mathias  Simon, 
of  Jamestown,  Ottawa  County  and  State  of 
Michigan,  do  liereby  acknowledge  to  have 
received  of  my  father  Joseph  Simon  of  By- 
ron, Kent  County,  Michigan,  the  sum  of  one 
thousand  dollars,  which  sum  is  paid  to  and 
received  by  me  under  the  following  agree- 
ment and  understanding,  that  my  father  has 
advanced  the  same  to  me  in  full  for  my  dis- 
tributive share  out  of  his  estate  whatever 
the  same  may  be  at  his  decease.  And  for 
and  in  consideration  of  said  sum  to  me  so 
paid  and  received  as  aforesaid,  I  hereby 
agree  that  neither  myself  nor  my  heirs  will 
take,  claim  or  receive  anything  further  out  of 
the  estate  of  the  said  Joseph  Simon  at  or 
after  his  decease.  This  paper  shall  be  a 
receipt  In  full  in  the  hands  of  the  adminis- 
trator, executor  or  legal  representative  of  the 


*For  otaer  cues  le*  same  topU  and  lectlon  NUMBER  In  Deo.  *  Am.  Digs.  1907  to  data,  A  Raportar  Indazaa 


Digitized  by  LjOOQIC 


lllchj 


BIMON  T.  SIMON'S  ESTATE. 


545 


estate  of  tbe  said  Joseph  Simon  after  bis 
decease,  for  my  right  share  and  Interest  as 
an  heir  of  said  Joseph  Simon,  and  shall  for- 
ever cut  off  any  claim  of  heirship  by  me  or 
my  heirs  forever.  Mathias  Simon.  Witness, 
James  Miller."  Joseph  Simon  died  February 
26,  1906,  intestate,  and  there  survived  him 
his  wife  and  four  children,  of  whom  Mathias 
was  one.  His  real  estate  was  valued  at  $8,- 
000  and  his  personal  estate  at  $15,544.39. 
Disbursements  and  commissions  were  $3,455.- 
03.  Mathias  In  the  probate  coqrt  asked  that 
the  value  of  the  personal  estate  be  Increased 
by  the  sum  of  $1,000  "advanced  to  me  on, 
to  wit,  the  29th  day  of  June  A.  D.  1874, 
by  my  said  father,  Joseph  Simon,"  and  that 
in  the  distribution  of  the  estate  he  be  given 
a  one-fourth  interest  In  the  real  and  personal 
property,  subject  to  the  interest  or  share  of 
the  widow.  "In  other  words,  I  ask  that  in 
the  division  and  distribution  of  the  personal 
estate  left  by  the  said  deceased  that  I  be 
given  such  an  amount  which,  added  to  the 
advancement  already  received  by  me  as 
aforesaid,  will  give  me  my  full  share  of 
said  personal  estate."  In  the  probate  court 
and  in  the  circuit  court  to  which  an  appeal 
was  taken  it  wag  determined  that  Mathias 
was  not  entitled  to  any  share  of  the  estate. 
It  was  found  by  the  circuit  court  that  the 
valae  of  the  estate  of  Joseph  Simon  at  the 
time  of  his  death  was  substantially  three 
times  its  value  at  the  date  of  making  the 
said  advancement.  The  provisions  of  our 
statute  (Comp.  Laws  1897)  upon  the  subject 
of  advancements  here  set  out  are  to  be  fonnd 
also  in  the  Eev.  St.  1838,  pt  2,  tit  2,  c.  1. 

"(9069)  Sec.  6.  Any  estate,  real  or  personal, 
that  may  have  been  given  by  the  intestate 
in  his  lifetime,  as  an  advancement  to  any 
child  or  other  lineal  descendant,  shall  be 
considered  as  a  part  of  tbe  estate  of  the  In- 
testate, so  far  as  it  regards  the  division  and 
distribution  thereof  among  his  issue,  and 
shall  be  taken  by  such  child  or  other  descend- 
ant towards  his  share  of  the  estate  of  the 
Intestate. 

"(9070)  Sec.  7.  If  the  amount  of  such  ad- 
vancement shall  exceed  the  share  of  the 
heir  so  advanced,  he  shall  be  excluded  from 
any  further  portion,  in  the  division  and  dis- 
tribution of  the  estate,  but  he  shall  not  be 
required  to  refund  any  part  of  such  advance- 
ment, and  if  the  amount,  so  received  shall 
be  less  than  his  share,  he  shall  be  entitled 
to  as  much  more  as  will  give  him  bis  full 
share  of  the  estate  of  the  deceased. 

"(9071)  Sec.  8.  If  such  advancement  be 
made  in  real  estate,  the  value  thereof  shall, 
for  the  purposes  mentioned  in  tbe  preceding 
section,  be  considered  a  part  of  the  real  es- 
tate to  be  divided;  and  if  It  be  in  personal 
estate.  It  shall  be  considered  as  part  of  tbe 
personal  estate;  and  if  in  either  case  it  shall 
exceed  tbe  share  of  real  or  of  personal  e» 
tate,  respectively,  that  would  have  come  to 
the  heir  so  advanced,  be  shall  not  refund  any 
122  N.W.— 35 


part  of  it,  but  shall  receive  so  much  less  out 
of  the  otber  part  of  the  estate  as  will  make 
his  whole  share  equal  to  those  of  the  other 
heirs  who  are  In  the  same  degree  with  bim. 

"(9072)  Sec.  9.  All  gifts  and  grants  shaU 
be  deemed  to  have  been  made  in  advance- 
ment, if  they  are  expressed  In  the  gift  or 
grant  to  be  so  made,  or  if  charged  in  writ- 
ing by  the  Intestate  as  an  advancement,  or 
adcnowledged  in  writing  as  such  by  the  child 
or  other  descendant. 

,  "(9073)  Sec.  10.  If  the  value  of  the  estate 
so  advanced  shall  be  expressed  in  the  con- 
veyance, or  in  the  charge  thereof  made  by 
the  Intestate,  or  in  the  acknowledgment  of 
the  party  receiving  it,  it  shall  be  considered 
as  of  that  value,  in  the  division  and  dis- 
tribution of  the  estate;  otherwise.  It  shall 
be  estimated  according  to  Its  value  when 
given,  as  nearly  as  the  same  can  be  aacer- 
tahied. 

"(9074)  Sec.  11.  If  any  child  or  other  lineal 
descendant  so  advanced  shall  die  before  the 
Intestate,  leaving  Issue,  the  advancement 
shall  be  taken  into  consideration,  in  the  divi- 
sion and  distribution  of  the  estate,  and  the 
amount  thereof  shall  be  allowed  accordingly 
by  the  representatives  of  the  heir  so  ad- 
vanced, in  like  manner  as  if  the  advancement 
had  been'  made  directly  to  them." 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Rodgers  &  Rodgers,  for  appellant  Mathias 
Simon.  Lombard  te  Hezt  and  Thompson  & 
Temple,  for  estate. 

OSTRANDER,  J.  (after  stating  the  facts 
as  above).  This  court  has  never  decided, 
and  It  seems  has  not  before  had  presented 
for  decision,  the  precise  question  which  is 
involved.  It  Is  claimed  that  upon  the  au- 
thority of  First  National  Bank  v.  Phlllpotts, 
155  Mich.  831,  119  N.  W.  1,  it  must  be  held 
that  the  instrument  executed  by  Mathias  Is 
ineffectual  to  bar  his  right  to  a  share  of 
the  real  estate.  But  in  that  case  it  did  not 
appear  that  the  alleged  advancement  was 
asserted  in  probate  court,  which  court  is 
expressly  authorized  (Comp.  Laws,  |  9457) 
to  determine  all  questions  as  to  advance- 
ments made  or  alleged  to  have  been  made  by 
the  deceased.  The  estate  was  assigned  to 
the  heirs  as  if  no  advancement  had  been 
made.  The  order  assigning  the  real  estate 
was  recorded.  The  effect  of  an  assignment 
of  the  real  estate  made  In  recognition  of  the 
advancement  upon  a  levy  made  upon  the  In- 
terest of  an  heir  before  the  estate  was  as- 
signed is  not  discussed  In  the  opinion.  Tbe 
legal  effect  of  the  Instrument  executed  by 
one  of  the  heirs  and  claimed  to  evidence  an 
advancement  to  him  in  full  of  his  share  of 
the  estate  is  somewhat  discussed,  but  there 
is  nothing  snld  which  may  be  considered  as 
decisive  of  the  point  presented  in  the  case  at 
bar.  The  property  of  one  dying  Intestate 
goes  by  operation  of  positive  law,  by  dis- 


Digitized  by  VjOOQ  l€ 


646 


122  NORTHWESTERN  REPOUTER. 


(Micb. 


tribntJon,  or  by  inheritance  to  certain  per- 
sons in  certain  shares.  The  devolution  of 
the  property  Is  Independent  of  the  wishes 
or  the  actions  of  the  persons  appointed  by 
law  to  take  it  The  proTisions  of  the  stat- 
ute concerning  advancements  are  a  part  of 
the  law  governing  the  devolution  of  such 
estates.  Until  the  death  of  the  ancestor  the 
heir  as  heir  or  as  distributee  has  no  interest 
in  the  estate.  And  it  was  the  rule  of  the 
common  law  that  a  release  by  a  child  of  an 
interest  in  the  estate  of  his  parent,  If  made 
during  the  life  of  the  parent,  was  inopera- 
tive, because  all  interest  In  the  estate  was 
then  in  the  parent 

I  have  here  stated,  In  substance,  the 
grounds  of  the  argument  made  in  behalf  of 
the  appellant.  In  which  it  Is  contended  that 
the  statute  furnishes  the  exclusive  and  un- 
avoidable rule  for  the  devolution  of  intes- 
tate estates,  as  well  where  advancements 
have  been  made  as  where  they  have  not  been 
made.  It  must  be  conceded  there  is  some 
reason  and  very  respectable  authority  to  sup- 
port this  contention.  At  first  blush,  it  seems 
a  simple  enough  matter  to  say  that  the  stat- 
utes of  descent  and  distribution  are  framed 
so  as  to  secure  equality  of  interest  of  those 
entitled  to  an  intestate  property  that  the 
owner  may,  if  he  chooses,  change  the  statute 
devolution  by  his  will,  but  not  otherwise, 
and  that  if  be  makes  a  gift  and  characterizes 
it  as.  an  advancement,  and  dies  intestate, 
it  must,  by  virtue  Of  mandatory  provisions 
of  the  law,  and  no  matter  upon  what  terms 
the  advancement  is  made,  be  considered  as 
a  payment  pro  tanto  of  the  share  of  the 
child  advanced.  But  such  a  rule  appears 
less  reasonable  when  it  is  considered  that 
advancements  are  not  necessarily  enforced 
according  to  a  theory  of  partial  or  total  non- 
devolution  of  the  estate  to  the  person  ad- 
vanced. The  legislative  conception  of  the 
matter  seems  rather  to  have  been  that  they 
would  be  enforced  as  a  present  payment  for 
that  which  might  otherwise  later  belong  to 
the  heir.  The  estate  actually  belonging  to 
the  Intestate  at  the  time  of  his  death  is  en- 
larged by  the  advancement  theretofore  made. 
It  is  the  actual  estate,  plus  the  advancement, 
which  Is  regarded.  And,  as  an  advance- 
ment is  considered  to  have  been  a  portion  of 
the  patrimony  already  distributed  or  assign- 
ed, the  theory  of  administration  in  such  cas- 
es Is  one  of  set-otr  and  adjustment  rather 
than  one  of  avoidance  either  of  the  statute 
of  descents  or  of  distribution.  To  the  sug- 
gestion that  a  considerable  inequality  of  in- 
terest may  be,  in  fact,  the  result  of  accepting 
an  advancement  as  in  full  for  the  statute 
sliare,  it  may  be  well  replied  that  in  most 
cases  it  win  be  uncertain  whether  any  ad- 
vancement will  not  result  in  inequality.  The 
ancestor,  after  advancing  a  child  or  children, 
may  accumulate  or  may  lose  property.  Oth- 
er children  may  be  bom.  The  statute  does 
not  expressly  forbid  one  to  receive  in  ad- 
vance his  full  share  of  the  estate  and  to  ac-- 


knowledge  it  as  such.  If  he  does  so  receive 
it,  it  is  his  promise  or  agreement  or  cove- 
nant, and  not  the  mere  voluntary  act  of 
the  ancestor,  which  creates  the  bar.  And  If 
it  is  conceded,  as  upon  both  reason  and  the 
weight  of  authority  it  must  be,  that  in  the 
absence  of  the  statute  provisions  concerning 
advancements  the  heir  may,  the  ancestor  liv- 
ing, bar  his  right  to  a  share  in  his  estate,  not 
indeed  by  a  present  release  or  conveyance, 
but  by  a  contract  or  covenant  not  to  claim 
the  interest  when,  if  ever,  it  has  vested,  then 
the  statute  provisions  must  be  construed 
with  reference  to  such  a  right  It  seems  to 
have  been  the  rule  of  the  common  law  that, 
if  an  heir  released  with  warranty.  It  barred 
him  when  the  right  descended.  Ck>.  Lit 
265a.  To  this  effect  are  many  decisions  of 
the  courts,  some  of  which  will  be  later  re- 
ferred to.  No  particular  form  of  words  is 
required  to  constitute  such  a  covenant  and 
it  is  no  longer  Important  that  any  particular 
ceremony  accompany  or  evidence  the  making 
of  such  a  covenant  The  precise  questiou 
Involved  has  been  many  times  decided,  though 
not  always  in  the  same  way.  It  is  unneces- 
sary to  cite  the  large  number  of  authorities 
which  have  been  examined.  They  are  well 
collected  in  S3  L.  R.  A.  266,  278,  note,  and 
in  65  L.  R.  A.  678,  note.  The  subject  of  ad- 
vancements is  treated  in  1  Am.  &  BIng.  Enc. 
L.  (2d  Ed.)  760,  and  In  14  Cyc.  162.  The 
weight  of  authority  recognizes  the  right  of 
the  heir  who  has  attained  majority  to  accept 
presently  in  advancement  his  full  share  of 
the  estate  of  the  parent.  Whether  the  ar- 
rangement is  called  a  contract  not  to  take, 
or  a  release  to  take  effect  In  the  future,  the 
principle  Is  the  same.  When  the  estate  is 
cast  by  the  death  of  the  ancestor,  it  operates 
to  estop  the  heir  to  take  what  he  has  agreed 
he  will  not  claim.  A  leading  case  in  which 
the  rule  Is  announced  is  Quarles  v.  Quarlcs, 
4  Mass.  680.  The  statute  in  force  In  Massa- 
chusetts when  this  decision  was  rendered 
(1808)  was  substantially  the  statute,  orig- 
inally adopted  from  that  state,  now  In  force 
in  this  state.  In  Illinois,  where  a  similar 
statute  is  in. force,  the  same  rule  is  adopted. 
Simpson  V.  Simpson,  114  111.  603,  4  N.  E. 
137,  7  N.  B.  287.  See,  also,  Jones  v.  Jones, 
46  Iowa,  466;  Trull  v.  Eastman,  8  Mete. 
(Mass.)  121,  37  Am.  Dec  126;  Coffman  v.  Coff- 
man,  41  W.  Va.  8,  23  S.  E.  523;  Curtis  v. 
Curtis,  40  Me.  24,'  63  Am.  Etec.  651 ;  Powers' 
Appeal,  63  Pa.  443;  Re  Lewis  Estate,  29 
Out.  609.  We  are  satisfied  that  it  Is  the 
better  rule,  and  that  the  court  below  was 
not  in  error  in  adopting  it  Nor  do  we  need 
to  consider  whether  such  an  undertaking 
may  be  given  effect  in  courts  of  law.  It  has 
been  pointed  out  that  probate  courts  which 
In  the  settlement  of  estates  proceed  largely 
according  to  equitable  theories  of  rights  are 
expressly  authorized  to  determine  all  ques- 
tions concerning  advancements.  In  this  case 
the  receipt  given  by  Mathlas  to  bis  father 
is,  as  he  agreed  it  should  be,  produced  on  the 


Digitized  by  LjOOQIC 


MldL) 


FIRST  NAT.  BANK  v.  UNION  TED8T  CO. 


647 


part  of  the  estate  to  estop  him  from  assert- 
ing any  right  to  share  therein.     There  Is 
no  reason  why  the  probate  court  should  not 
have  determined,  as  It  did,  its  legal  effect 
The  judgment  is  affirmed. 


FIRST  NAT.  BANK  v.  UNION  TRUST  CO. 
(Supreme  Court  of  Michigan.    Sept.  21,  1909.) 

1.  Banks  and  BAitKina  ({  145*)— Cebtifibd 
Chkck. 

A  certified  check  in  the  hands  of  a  bona 
fide  holder  for  yalae  is  valid,  thongh  the  maker 
had  no  funds  in  the  bank  when  the  check  was 
certiiied,  and  the  statute  prohibits  certification 
nnder  such  circnmstances. 

[EA.  Note.— For  other  cases,  see  Banks  and 
Banking,  Cent.  Dig.  {{  419-133;  Dec.  Dig.  { 
145.*] 

2.  CouBTS  (I  92«)—Opinior8— Dicta. 

A  case  is  authority  only  on  the  questions 
actually  decided. 

[Ed.  Note.— For  other  cases,  see  Courts,  Cent. 
Dig.  I  835;    Dec.  Dig.  i  92.*] 

3.  Bawks  and  Baitkino  (S  145*)— Checks— 
Cebtification. 

The  original  holder  of  a  check,  who  pro- 
cares  the  certification  thereof,  may  be  a  bona 
fide  holder  for  value.. 

[EU.  Note.— For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  I  145.^] 

4.  Banks  and  Banking  (8  155*)— Cebtttikd 
Checks  — Action  bt  Pateb  — Burden  o» 
Fboot. 

In  an  action  by  the  payee  of  a  certified 
check  afwinst  the  bank  certifying  the  same, 
the  burden  is  on  plaintiff  to  show  by  a  pre- 
ponderance of  the  evidence  that  he  la  a  bona  fide 
holder  of  the  check  and  the  certification  thereon 
for  value. 

[Ed.  Note.— For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  §  155.*] 

5.  Banks  and  Banking  (§  145*)— Cebtified 
Checks — Bona  F^de  Holdsb. 

The  payee  of  a  check,  who  procures  Its  cer- 
tification with  notice  or  knowledge  of  facts  mak- 
ing the  certification  dishonest,  is  not  a  bona  fide 
holder. 

lEd.  Note. — For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  |  145.*] 

6.  Banks  and  Banking  (J  145*)— Cbbtimed 
Cheoks— Bona  Fide  Holdeb. 

The  payee  of  a  check, .  who  procures  its 
certification  with  knowledge  that  it  is  not  certi- 
fied on  money  actually  deposited  in  the  bank 
to  the  maker's  credit,  but  on  collateral  deposited 
with  the  iMUik,  is  not  a  bona  fide  holder. 

[Eid.  Note. — For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  |  145.*] 

7.  TBIAL   (8   244*)  —  iNBTBXrcnONa— SlNGIJNQ 

Out  Testimont. 

An  instruction  singling  out  certain  testi- 
mony and  stating  its  effect  is  properly  refused. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  ti  577-681 ;    Dec.  Dig.  {  244.*] 

8.  Banks  and  Banking  (8  155*)— Checks— 
IiXEOAL  CEBTiriCATioN— Notice  to  Holdeb 
— ^Evidence. 

Evidence  that  the  vice  president  of  plain- 
tiff bank  kept  a  scrap  book,  in  which  were 
pasted  statements  of  local  banks,  including  that 
of  defendant  bank  for  a  certain  month  and 
showing  a  small  amount  of  outstandinK  certified 
checks,  was  not  competent  as  showing  actual 
notice  to  plaintiff  that  the  certification  bv  de- 
fendant of  a  large  check  payable  to  plaintii  was 


illegal ;  it  not  appearing  that  either  the  vice 
president  or  the  assistant  cashier,  who  procured 
the  certification,  examined  the  book  or  the  state- 
ments. 

[EM.  Note.— For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  |  155.*] 

9.  New  Tbial  (8  102*)— Newit  Discotebbd 

Evidence— Diligence. 

A  new  trial  will  not  be  granted  for  newly 
discovered  evidence,  where  such  evidence  might 
have  been  produced  at  the  trial  with  ordinary 
diligence. 

[Ed.  Note.— For  other  cases,  see  New  Trial, 
Cent.  Dig.  H  210-214;  Dec.  Dig.  |  102.*] 

Error  to  Circuit  Court,  Monroe  County; 
Harry  A.  Lockwood,  Judge. 

Action  by  the  First  National  Bank  against 
the  Union  Trust  Company,  receiver  of  City 
Savings  Bank.  Judgment  for  plaintiff,  and 
defendant  brings  error.    Affirmed. 

Argued  before  BLAIR,  C.  J.,  and  MONT- 
60MERT,  HOOKER,  MOORE,  and  McAL- 
VAY,  JJ. 

Bowen,  Douglas,  Whiting  &  Murfin  (John 
C.  Donnelly  and  Frederick  W.  Whiting,  of 
counsel),  for  appellant  Stevenson,  Carpen- 
ter &  Butzel  (Harrison  Geer,  of  counsel),  for 
appellee. 

McALVAT,  J.  Plaintiff  recovered  a  Judg- 
ment In  this  suit  brought  by  It  against  the 
City  Savings  Bank  of  Detroit  upon  the  cer- 
tification of  a  check  for  the  sum  of  $175,662.- 
50  drawn  on  defendant  bank  by  Frank  C  An- 
drews payable  to  plaintiff.  Frank  C.  An- 
drews was  a  heavy  customer  of  plaintiff  bank. 
He  dealt  largely  in  stocks  and  biands  upon  the 
New  York  and  eastern  markets  through  his 
brokers  in  Detroit,  Cameron  Currie  &  Co. 
Usually,  when  he  made  purchases,  drafts  on 
Detroit  would  be  made  for  the  amount  of  the 
purchase,  and  to  these  drafts  were  attached 
the  certificates  of  stock  purchased,  to  be  de- 
livered to  him  when  the  drafts  were  paid. 
The  transaction  which  occurred  on  February 
5,  1902,  when  this  check  In  suit  was  given 
and  certified,  was  of  this  nature:  The  plain- 
tiff on  that  date  wired  for  Mr.  Andrews  to 
New  York,  cash  to  the  amount  of  $75,000. 
It  delivered  to  him  three  drafts  drawn  by  his 
brokers  amounting  to  $338,162.50,  to  which 
were  attached  certificates  of  stock  of  equal 
value.  Total  $413,162.50.  In  payment  of  this 
indebtedness  it  received  from  Mr.  Andrews: 

Check  of  C.  Currie  &  Co.  oa  First 

Nat.  Bank. $137,600  00 

Check   of    Frank   C.   Andrews   on 

Preston  Nat  Bank 65.000  00 

Check  of  same  on  same  bank 45,000  00 

Check  in  suit  drawn  by  Andrews 

on  City  Savings  Bank 175.062  50 

$413,162  30 

There  Is  no  dispute  about  the  amount  of 
the  cash  and  stock  charged  in  the  above  state- 
ment, or  that  he  delivered  to  plaintiff  the 
checks  credited  to  him.  When  Mr.  Andrews 
parted  with  possession  of  the  check,  it  was 
not  certified.    It  was  immediately  handed  to 


•»or  «at»r  caaes  n*  sam*  topic  and  section  NUMBER  In  Doo.  ft  Am.  Digs.  UOT  to  date,  ft  Reoorter  IndexeT 

Digitized  by  VjOOQ  l€ 


548 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


a  mMsenger  of  the  bank  with  Instractions 
to  procure  Its  certification.  These  Instruc- 
tions were  at  once  obeyed  and  the  certifica- 
tion procured.  These  transactions  were  con- 
ducted between  Mr.  Frank  G.  Smith,  assist- 
ant canhler  of  plaintiff  bank,  and  Mr.  Frank 
G.  Andrews.  Both  were  witnesses  in  the 
case.  They  do  not  agree  as  to  the  time  the 
transaction  occurred,  and  as  to  whether  the 
check  was  certified  when  the  drafts  and  at- 
tached certificates  of  stock  were  delivered  by 
the  bank  to  Mr.  Andrews.  The  assistant 
cashier  testifies  that  the  transaction  occurred 
after  12  o'clock,  noon ;  Mr.  Andrews  that  It 
was  at  H  o'clock  a.  m.  The  assistant  cashier 
testified  that,  in  accordance  with  imperative 
orders  from  the  cashier  of  the  bank,  and  in 
accordance  with  what  plaintiff  claims  is 
shown  by  the  testimony  was  a  custom  known 
to  Mr.  Andrews,  the  check  was  certified  be- 
fore the  drafts  and  stock  attached  were  de- 
livered. Mr.  Andrews  testified  that  the  drafts 
and  certificates  of  stock  were  delivered  to 
him  before  the  check  was  certified.  Trans- 
actions previous  to  the  one  of  this  date,  and 
of  a  similar  character,  in  every  essential 
particular,  had  occurred  between  these  par- 
ties on  each  and  every  banking  day  from 
and  after  December  3, 1901.  The  actual  time 
over  which  they  had  extended  was  longer 
than  this;  but  by  agreement  this  date  was 
fixed  as  covering  a  sufilclent  length  of  time 
for  the  purposes  of  this  case.  The  transac- 
tions during  that  period  were  many  and 
of  large  amounts ;  the  total  aggregating  6^ 
millions  of  dollars.  They  occurred  after 
12  o'clock  noon,  when  the  clearing  house  clos- 
es. They  were  settled  each  day,  usually  by 
checks  of  different  parties,  as  shown  In  the 
transaction  of  February  5th,  above.  The  bal- 
ance of  the  Indebtedness  of  Mr.  Andrews  was 
paid  by  a  check  on  the  City  Savings  Bank, 
which.  If  more  than  $20,000,  was  by  the  or- 
ders of  the  cashier  of  plaintiff  bank  always 
certified  before  the  securities  for  which  it 
paid  were  delivered  to  Mr.  Andrews.  All 
checks  on  local  banks  were  required  by  the 
clearing  house  agreement  to  pass  through  it, 
and  to  be  paid  only  by  taking  that  course. 
All  such  checks  received  after  12  o'clock, 
noon,  would  not  pass  through  the  clearing 
house  until  the  following  day.  If  no  other 
arrangement  waai  made,  eadi  of  the  checks 
referred  to,  so  given  by  Andrews  to  plain- 
tiff bank,  was  passed  through  the  clearing 
house  and  paid  on  the  following  day.  In 
most  Instances  some  other  arrangement 
was  made  on  the  morning  of  the  day  after 
such  checks  were  taken.  During  the  njorning 
of  the  next  day  usually  Andrews  would  call 
at  the  plaintiff  bank  and  make  an  arrange- 
ment to  take  up  the  certified  check  and  pay 
It  to  a  large  extent  by  giving  plaintiff  New 
York  Exchange,  which  was  desirable  and  of 
benefit  to  plaintiff  to  the  amount  of  50  cents 
per  $1,000.  Between  the  dates  above  men- 
tioned plaintiff  remitted  to  New  York  for 
Mr.  Andrews  $6,531,312.10.     It  received  ex- 


change from  him  amounting  to  $5,242,000, 
all  good  and  paid.  The  majority  of  these  certi- 
fied checks  taken  up  by  Andrews  were  return- 
ed by  him  to  the  City  Savings  Bank.  On  the 
day  of  the  transaction  In  dispute  at  12  o'clock 
the  only  check  at  that  time  given  by  Andi-ews 
and  held  by  plaintiff  was  paid  through  the 
clearing  house.  Plaintiff  at  the  time  the  check 
in  this  suit  was  taken  was  not  a  creditor  oi 
Andrews  or  the  City  Savings  Bank.  The  Jury 
to  which  the  case  was  submitted  by  the  court 
returned  a  verdict  for  plaintiff  for  the 
amount  claimed. 

Of  the  errors  claimed  by  defendant  and 
assigned,  the  first  which'  requires  considera- 
tion is  the  refusal  of  the  court  to  direct  a 
verdict  against  plaintiff  upon  the  legal  prop- 
ositions stated  In  the  defendant's  second  re- 
quest to  charge  which  was  denied.  Condens- 
ed by  defendant  in  its  brief,  this  request  Is 
stated  as  follows:  "(1)  That  the  manner  In 
which  the  plaintiff  obtained  the  certification 
of  the  check  under  dispute  made  the  contract 
of  certification  one  solely  between  the  plain- 
tiff, the  First  National  Bank,  and  the  City 
Savings  Bank,  and  that  the  two  banks  are 
the  original  and  only  pai'tles  to  such  contract 
of  certification.  (2)  That,  consequently,  the 
question  of  bona  fide  ownership  of  the  First 
National  Bank  of  the  check,  or  of  the  con- 
tract of  certification,  does  not  arise  In  the 
case.  The  action  brought  by  the  plaintiff  la 
not  based  upon  the  check,  but  is  based  neces- 
sarily upon  the  contract  of  certification  be- 
tween it  and  the  City  Savings  Bank,  and 
therefore  the  circumstances  surrounding  ttte 
making  of  the  contract  of  certification.  In  our 
view  of  it,  control  the  disposition  of  the  case, 
and  the  conduct  of  the  First  National  Bank 
or  its  treatment  of  the  certification  after  the 
completion  of  said  certification  and  their 
dealings  with  Andrews  or  Currie,  or  any  oth- 
er person,  in  relation  to  the  securities,  can- 
not change  the  legal  effect  of  the  contract  of 
certification." 

It  is  asserted  repeatedly  in  defendant's 
brief  that  neither  the  disputed  fact  as  to 
whether  the  stocks  were  delivered  before  or 
after  certification,  nor  the  question  of  the 
bona  fide  ownership  of  the  check  or  certifica- 
tion, have  any  material  tiearlng  upon  the  case. 
In  taking  this  position  it  would  appear  that 
defendant  Is  relying  upon  the  prohibition  of 
the  statute  against  certifying  checks  in  the 
absence  of  funds  to  the  drawer's  credit.  la 
support  of  the  position  taken,  this  statute, 
as  construed  by  this  court  and  authorities 
cited  in  support  of  such  construction,  are 
cited  and  discussed.  Reliance  Is  had  upon 
the  case  of  Union  Trust  Co.,  Rec'r,  v.  Pres- 
ton Nat  Bank,  136  Mich.  460,  00  N.  W.  399, 
112  Am.  St.  Rep.  370.  In  that  case  plalntlCf 
brought  suit  against  defendant  to  recover  a 
balance  claimed  to  be  due.  Defendant  sought 
to  set  off  against  this  Indebtedness  the  sum 
of  $100,000,  represented  by  a  check  of  F.  C. 
Andrews  drawn  on  plaintiff  payable  to  de- 
fendant and  duly  certified.    At  the  time  of 


Digitized  by 


Google 


Mich.) 


FIRST  NAT.  BANK  t.  UNION  TRUST  CO, 


549 


certification  Andrews  was  overdrawn  $405,- 
000.  Defendant  offered  to  show  that  on  the 
day  It  was  drawn,  and  after  certification,  it 
received  this  check  In  the  usutil  course  ot 
business,  and  paid  the  maker  full  value,  and 
at  the  time  had  no  notice  or  knowledge  of 
any  Infirmity,  or  that  Andrews'  account  w&s 
overdrawn.  This  evidence  was  excluded ;  the 
trial  court  holding  that  the  certification  was 
Invalid  in  the  hands  of  a  bona  fide  holder, 
and  directed  a  verdict  for  plaintiff,  for  the 
amount  of  the  deposit  in  defendant's  hands. 
The  opinion  states  "the  sole  question  present- 
ed by  this  record  relates  to  the  correctness 
of  this  holding."  This  was  the  question  de- 
cided. This  court  held  that  a  certified  check 
in  the  hands  of  a  bona  fide  holder  for  value 
Is  valid,  although  the  maker  had  no  funds 
in  the  bank  when  it  was  certified. 

It  Is  claimed  that  the  case  decided  that 
as  between  the  original  parties  to  the  cer- 
tification the  contract  of  certification,  in 
the  absence  of  funds.  Is  absolutely  void.  The 
opinion  discusses  at  considerable  length  the 
construction  of  prohibitory  statutes,  and  the 
legislative  intent  In  enacting  the  section  of 
the  banking  act  construed.  In  the  opinion 
It  is  stated:  "The  fact,  however,  that  the 
certification  Is  forbidden  and  made  a  crime, 
compels  the  inference  that  the  Legislature 
intended  to  avoid  such  certification  between 
the  original  parties,  and  this  It  Is  almost 
necessary  to  say  avoids  it  in  the  hands  ot 
every  one  not  a  bona  fide  holder."  Upon 
the  face  of  the  opinion  it  shows  that  this 
question  was  not  before  the  court.  There  is 
no  rule  better  settled  thah  that  which  holds 
that  no  case  Is  to  be  considered  authority 
e.Tcept  upon  the  questions  actually  decided. 
The  case  relied  upon  settles  the  one  questior 
above  stated.  ' 

It  Is  claimed  by  plaintiff  that  AndrewF 
was  one  of  the  original  parties  to  this  cer- 
tification. E^vldence  was  offered  and  receiv- 
ed, tending  to  show  that,  In  these  dealings 
between  the  parties,  the  securities,  which 
were  to  be  released  to  Andrews  on  the  pay- 
ment of  the  drafts  to  which  they  were  at- 
tached, were  never  released  until  the  checks 
given  in  payment  therefor  were  certified  by 
tlie  defendant  bank,  tending  to  establish  a 
custom  known  to  Andrews,  and  that  such 
custom  was  followed  in  this  case,  and  the 
check  certified  l)efore  the  stocks  were  deliv- 
ered to  Andrews,  the  effect  of  which  evidence 
was  claimed  by  plaintiff  to  show  an  implied 
request  on  the  part  of  Andrews  to  the  plain- 
tiff to  procure  certification  for  him.  The 
Jury  decided  the  question  as  to  the  time  of 
release  and  delivery  of  the  stocks  in  favor 
of  plaintiff.  This  was  a  material  fact  as 
bearing  upon  the  question  of  consideration 
passing,  and  who  were  the  original  parties 
to  the  certification,  and  one  which,  in  view 
of  the  evidence  in  the  case  upon  tiiat  ques- 
tion, could  not  well  have  been  decided  oth- 
erwise. If  the  facts  are  found,  as  claimed 
by  plaintur,  that  It  procured  this  certifica- 


tion for  Andrews,  wherein  can  such  procure- 
mfflit  be '  distinguished  from  a  case  where 
the  certification  is  procured  by  the  maker 
himself.  If  it  is  shown  that  plaintiff  Is  In 
fact  a  bona  fide  holder  for  value?  We  think 
there  can  be  no  distinction  made,  and  that 
the  case  comes  within  the  rule  laid  down  In 
Union  Trust  Co.  v.  Preston  National  Bank, 
supra.  In  such  view  of  the  case  the  ques- 
tion of  bona  fides  is  necessarily  of  the  great- 
est Importance. 

It  is  urged  by  defendant  that,  even  conced- 
ing the  certification  of  the  check  to  have 
been  procured  by  plaintiff  at  the  request  of 
the  maker,  express  or  implied,  such  fact 
would  not  operate  to  change  the  status  of 
plaintiff  as  one  of  the  original  parties  to  the 
certification.  Cases  are  cited  in  support  ot 
this  proposition.  An  examination  of  these 
shows  that  they  were  cases  brought  against 
the  drawers  of  certified  checks,  and  were 
decided  against  the  holders  when  the  cer- 
tifications were  procured  by  them,  and  in 
their  favor  when  procured  by  the  drawers. 
In  other  words,  they  are  some  of  the  leading 
cases,  establishing  and  affirming  the  doc- 
trine indicated,  about  which  there  can  be  no 
dispute  In  this  state  since  the  decision  of 
First  National  Bank  v.  Cameron  Currie  & 
Co.,  147  Mich.  72,  110  N.  W.  490,  9  L.  R.  A. 
(N.  S.)  698,  118  Am.  St  Rep.  537.  In  none 
of  thesd  cases  was  the  suit  against  the  cer- 
tifying bank,  nor  was  there  any  dispute  as 
to  whose  request  procured  the  certification. 
No  cases  are  cited  which  decide  that  the 
original  holder  procuring  the  certification 
may  not  be  a  bona  fide  holder  for  value. 
This  court,  in  First  National  Bank  v.  Camer- 
on Currie  &  Co.,  supra,  has  decided  that  he 
may  be  such  a  holder.  That  case  arose  from 
a  transaction  between  Andrews  and  these 
banks  similar  to  the  transaction  In  the  case 
at  bar  and  on  the  following  day.  The  suit 
was  by  the  holder  against  the  indorser. 
Frank  C.  Andrews  drew  his  check  of  |50.- 
000  payable  to  Currie  &  Co.,  who  indorsed  it 
to  plaintiff  and  secured  its  certification,  and, 
relying  upon  it,  wired  $50,000  to  New  Tork. 
It  was  presented  for  payment  at  the  certify- 
ing bank,  payment  refused,  and  the  indorser 
notified  within  the  time  he  would  have  re- 
ceived notice  if  the  check  had  not  been  cer- 
tified. In  deciding  that  this  certification 
released  the  Indorser,  the  question  now  un- 
der consideration  was  necessarily  involved. 
At  the  time  the  check  was  certifledt  An- 
drews' account  was  overdrawn  $600,000,  and 
the  certification  was  claimed  to  be  fraudulent 
and  criminal.  To  hold  that  contract  legal 
and  binding  it  necessarily  followed  that  the 
payee  and  Indorsee  was  held  to  be  a  bona 
fide  bolder  for  value.  Counsel  for  defend- 
ants cite  this  case  as  correctly  stating  the 
law  upon  the  questions  Involved,  but  do  not 
agree  that  this  question  was  necessarily  de- 
cided. 

It  is  claimed  that  plaintiff  charged  An- 
drews bonuses  and  interest  because  checks 


Digitized  by  VjOOQ  l€ 


560 


122  NORTHWESTERN  REPORTER. 


(Mich. 


were  taken  np  by  blm  Instead  of  going 
through  the  clearing  house.  The  record  does 
not  sustain  the  claim.  No  bonuses  were 
charged  or  Interest  paid  for  that  reason. 
The  items  of  interest  charged  were  upon  the 
Items  of  cash  of  which  he  received  the  Imme- 
diate use  In  exchange  for  checks  which  could 
not  be  cashed  until  the  day  following. 

It  Is  claimed  that  the  court  committed  er- 
ror In  bis  charge  In  submitting  the  question 
of  good  faith  to  the  Jury.  A  careful  exam- 
ination of  this  part  of  the  charge  shows  that 
the  court  stated  the  law  correctly.  The  fol- 
lowing upon  this  question  is  taken  from  the 
charge :  "That  the  burden  is  upon  the  plain- 
tiff in  this  case  to  show  by  a  preponderance 
of  the  evidence  that  It  is  a  lK>na  fide  holder 
of  the  check  and  the  certification  thereon  for 
value.  ♦  ♦  *  If,  after  careful  considera- 
tion of  all  the  evidence,  you  are  satisfied  that 
the  First  National  Bank,  at  the  time  it  took 
the  check,  understood  or  l>e]leved  that  the 
certification  was  not  valid,  but,  on.  the  con- 
trary, that  it  was  made  when  Frank'  C. 
Andrews  did  not  have  money  on  deposit  in 
the  City  Savings  Bank  to  the  credit  of  his 
account  on  the  books  of  the  bank  sufficient 
to  meet  the  amount  of  the  check,  then  your 
verdict  should  be  for  the'  defendant.  ♦  ♦  » 
If  you  are  satisfied  from  all  the  evidence 
in  this  case  bearing  upon  this  question  that 
on  ihe  5th  day  of  February,  1902,  the  First 
National  Banlc,  or  its  ofilcers,  and  more  es- 
pecially Frank  Smith,  its  assistant  cashier, 
had  notice  or  knowledge  of  facts  which 
would  render  the  act  of  taking  the  certifica- 
tion of  the  City  Savings  Bank  with  the  In- 
tention to  rely  upon  it  and  collect  It,  an  act 
of  bad  faith,  or  in  effect  dishonest,  then  the 
First  National  Bank  was  not  a  bona  fide 
bolder  of  the  certified  check,  and  your  ver- 
dict should  be  for  the  defendant  Under 
tliese  circumstances,  a  man  may  take  a  piece 
of  commercial  paper,  relying  upon  its  being 
good,  and  he  is  not  bound  to  Inquire  of  the 
maker  of  said  paper  as  to  the  facts  and  cir- 
cumstances surrounding  its  making,  nor  as 
to  whether  there  are  possible  defenses;  but, 
if  he  have  knowledge  of  facts  and  circum- 
stances which  would  make  it  dishonest  or  an 
act  of  bad  faith  for  him  to  take  the  paper 
with  the  intention  to  enforce  the  collection 
thereof,  then  he  is  not  a  holder  in  good  faith. 
So,  in  this  case,  if  the  oflicers  of  the  First 
National  Bank,  or  either  of  them,  had  knowl- 
edge that  the  City  Savings  Bank  was  certi- 
fying these  checks  of  Frank  C.  Andrews 
simply  because  he  had  deposited  collateral  in 
the  bank,  and  were  not  certifying  upon  mon- 
ey actually  deposited  in  the  bank  and  to 
his  credit  on  its  books,  the  First  National 
Bank  would  not  be  a  bona  fide  bolder  of 
this  certified  check." 

Tiie  complaint  defendant  makes  is,  not  that 
the  law  is  not  correctly  stated,  "but  that 
there  was  failure  in  making  the  proper  ai>- 
pllcatlou  of  the  principle  to  the  case  by  ex- 
plaining to  the  Jury  how  notice  and  knowl- 


edge might  be  eBtabllshed,"  etc.  Complaint 
is  also  made  to  this  part  of  the  charge,  that 
the  court  did  not  charge  as  requested  in  three 
of  the  requests  submitted,  and  that  the  Jury 
were  only  permitted  to  consider  facts  and 
circumstances  which  in  themselves  were  evi- 
dence showing  actual  notice  and  knowledge 
These  requests  were  as  follows:  "(12)  If  the 
jury  find  that,  at  the  time  of  the  certification 
of  the  checks  in  question,  Frank  C.  Andrews 
did  not  have  actually  standing  to  his  credit 
upon  the  books  of  the  bank  the  amount  of 
said  certifications,  but  that,  on  the  contrary, 
at  tlie  times  of  said  certifications  the  account 
of  the  said  Frank  C.  Andrews  in  the  City 
Savings  Bank  was  actually  overdrawn  In  a 
large  amount,  then  the  Jury  are  instructed 
that  the  certification,  under  the  circumstan- 
ces, Is  in  violation  of  the  provision  of  the 
state  banking  law,  and  Is  therefore  illegal 
and  void,  and  there  can  be  no  recovery  there- 
on by  the  plaintiff,  unless  the  jury  find  that 
it  became  the  holder  thereof  in  good  faith, 
for  full  value,  in  the  usual  course  of  business, 
without  notice  of  the  defect  or  Infirmity  of 
the  certification  or  the  illegality  thereof,  and 
the  burden  is  upon  the  plaintiff,  the  First  Na- 
tional Banic,  to  show  by  a  preponderance  of 
proof  that  it  became  a  holder  in  good  faith 
of  the  said  certification,  for  full  value,  in  the 
usual  course  of  business,  without  any  notice 
of  the  illegality  of  the  certification  or  of  any 
defect  or  infirmity  therein,  before  it  la  en- 
titled to  a  verdict  (13)  The  Jury  are  further 
Instructed  that  If  they  find  the  facts  and  cir- 
cumstances attending  the  use  of  certified 
checks,  drawn  by  Andrews  upon  the  City 
Savings  Bank  and  purporting  to  be  certified 
by  it,  and  the  manner  in  which  the  plaintiff 
used  and  treated  such  certified  checks,  were 
such  as  to  invite  inquiry,  they  will  be  sufli- 
cient  upon  which  to  base  a  finding  or  conclu- 
sion that  the  plaintiff  bank  did  not  receive 
the  certification  in  question  in  good  faith, 
providing  the  Jury  think  that  the  plaintiff 
abstained  from  making  the  Inquiry  with 
reference  thereto  from  a  belief  or  a  suspicion 
that  such  inquiry  would  disclose  the  invalid- 
ity and  illegality  of  the  certifications.  (14) 
Notice  and  Imowledge  t>f  the  invalidity  and 
illegality  of  said  certification  do  not  mean 
express  notice  or  direct  knowledge,  but  knowl- 
edge or  the  means  of  knowledge  to  which  the 
party  willfully  shuts  his  eyes,  and  either  ac- 
tual imowledge  of  the  Illegality  of  the  certifi- 
cation, or  a  course  of  conduct  upon  the  part 
of  the  bank  in  its  dealings  with  Andrews,  and 
the  certified  checks,  from  whic.h  the  Jury  may 
find  that  It  remained  willfully  Ignorant  there- 
of, will  defeat  the  claim  of  good  faith  owner- 
ship by  the  plaintiff."  In  so  far  as  the  8ul>- 
stance  of  these  requests  were  refused,  they 
were  not  proper  to  be  given,  as  either  not 
being  in  point,  or  improperly  calling  atten- 
tion to  and  emphasizing  certain  testimony. 

Errors  are  also  alleged  for  the  refusal  to 
give  two  certain  charges  relative  to  a  scrap 


Digitized  by 


L-oogle 


Mich.) 


HACKETT  T.  MoILWAIN. 


-  851 


book  of  plaintllTs  vice  president,  in  which 
were  pasted  statements  of  the  local  banks, 
including  the  December  statement  of  the  City 
Sar<ng8  Bank,  showing  a  small  amount  of 
oatstandlng  certified  checks.  It  did  not  ap- 
pear that  either  the  vice  president  or  Mr. 
Smith  examined  the  book  or  the  statements. 
The  first  of  these  requests  asked  the  court  to 
charge  that  the  Jury  might  consider  this  testi- 
mony as  tending  to  show  notice  of  illegal  cer- 
tification. The  second  request  stated  that  the 
Jury  might  consider  this  testimony  as  show- 
ing actual  notice  of  such  illegal  certification. 
The  first  was  properly  refused  for  the  rea- 
son that  the  request  singled  out  certain  testi- 
mony and  stated  Its  effect  The  second  was 
not  a  correct  statement  of  law  and  ahonld 
not  have  been  given. 

As  to  the  court's  rulings  on  the  admission 
or  exclusion  of  testimony.  It  is  claimed  by 
plaintiff  that  no  exceptions  were  taken  to 
the  rulings  complained  of.  An  examination 
of  the  record,  as  far  as  the  pages  cited  are 
concerned,  confirms  this  claim.  It  Is  not  de- 
nied In  defendant's  reply  brief. 

Error  is  assigned  upon  the  denial  of  the 
motion  for  a  new  trial  upon  the  ground  of 
newly  discovered  testimony,  and  because  of 
improper  publications  in  a  local  newspaper. 
As  to  the  first  ground  it  appears  that  with 
ordinary  diligence  this  evidence  might  have 
been  produced,  as  it  relates  to  matters  which 
were  within  defendant's  knowledge  prior  to 
the  last  trial.  Defendant's  attorneys  were 
then  In  possession  of  transcripts  of  testimony 
of  former  trials  as  to  the  time  when  the 
drafts  were  paid;  the  witness  now  desired 
being  one  of  the  firm  who  drew  the  drafts. 
As  to  improper  and  prejudicial  publications, 
those  printed  in  the  record  were  examined  by 
the  learned  trial  Judge  when  the  motion  was 
decided.  We  agree  with  his  conclusion  that 
the  publication  did  not  Influence  the  Jury. 

The  ludgment  is  affirmed. 


HACKETT  V.  McILWAIN. 
(Supreme  Court  of  Michigan.     Sept  21,  1009.) 

Death  (|  101*)— Actions— Right  to  Amount 
Recovered.  | 

Where  the  widow  of  intestate  who  left  no  i 
children  asreed   that  a  claim   for  the  death  of  \ 
intestate  snould  be  prosecuted  by  defendant,  an  < 
attorney,  for  tlie  sole  benefit  of  the  widow,  any  I 
recovery,  after  payment  of  erpenses,  to  be  di- ' 
▼ided  between   the   widow  and   defendant,   and 
plaintiff,  intestate's  administrator,  expressly  ac- 
qniesced   in   such   arrangement,    he   could    not,  ; 
after  recovery  and  division  of  the  proceeds  un- 1 
der  the  agreement,  recover  of  defendant  for  the 
benefit  of  the  estate  one-half  of  such  proceeds.     | 
[Ed.  Note.— For  other  cases,  see  Deatii,  Cent 
Dig.  H  134-138;   Dec.  Dig.  {  101.*]  , 


Appeal  from  Circuit  Court,  Wayne  County, 
In  Chancery;  George  S.  Hosmer,  Judge. 

Bill  by  Percy  Hackett,  administrator, 
against  John  B.  Mcliwaln.    Decree  for  com- 


plainant and  defendant  appeals.    Reversed, 
and  bill  dismissed. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE.  McALVAT,  and  BROOKE,  JJ. 

Frank  T.  Wolcott  (William  T.  Mitchell  and 
Alex.  J.  Groesbeck,  of  counsel),  for  appellant 
James  Swan,  for  appellee. 

MOORE,  J.  The  bill  of  complaint  was  fil- 
ed in  this  case  August  20,  1907.  In  it  Is  re- 
cited the  appointment  of  the  complainant  as 
administrator  in  May,  1898,  of  the  estate  of 
Ralph  Hackett,  deceased.  It  contains  the 
following  averments:  "Second.  That  part  of 
the  assets  of  said  estate  was  a  claim  for 
damages  arising  out  of  the  death  of  the  said 
Ralph  Hackett,  against  the  Wilson  Transit 
Company.  Third.  That  complainant  employ- 
ed the  defendant  herein,  John  B.  Mcllwain, 
as  his  attorney  for  the  purpose  of  prose- 
cuting a  suit  against  the  said  Wilson  Transit 
Company  under  the  arrangement  whereby  the 
said  Mcllwain  was  to  receive  50  per  cent,  of 
whatever  was  collected  in  said  suit  if  suit 
was  necessary,  and  40  per  cent  if  the  matter 
was  settled  before  a  trial."  It  further  avers 
a  commencement  of  suit,  a  settlement  there- 
of, an  entry  of  Judgment,  its  satisfaction  by 
defendant,  and  his  refusal  to  account  there- 
for. The  Important  parts  of  the  prayer  are- 
"That  this  court  require  an  accounting  to  be 
made  by  him  (defendant)  of  the  moneys  col- 
lected by  him  in  said  cause  and  willfully  ap- 
propriated to  his  own  use.  That  the  court 
decree  how  much  of  the  moneys  so  collected 
by  the  defendant  in  said  cause  shall  be  prop- 
erly payable  to  hiih  as  administrator  of  said 
estate,  and  that  he  be  decreed  by  this  court 
to  pay  the  same."  The  bill  of  complaint  con- 
tains no  averment  as  to  who  constituted  the 
family  of  Ralph  Hackett  at  the  time  of  his 
death,  or  to  whom  or  in  what  proportions  the 
money  obtained  by  the  defendant  should  be 
distributed. 

The  defendant  filed  an  answer.  In  which  he 
denied  that  a  part  of  the  assets  of  the  estate 
of  Ralph  Hackett  was  a  claim  for  damages 
growing  out  of  his  death,  and  averred  that 
the  only  person  pecuniarily  Interested  in  his 
death  and  entitled  to  claim  damages  on  ac- 
count of  his  death  was  his  widow.  The  an- 
swer contains  the  following:  "(3)  Defendant 
denies  that  complainant  emi>loyed  him  as  his 
attorney  for  the  purpose  of  prosecuting  a 
suit  against  the  Wilson  Transit  Company,  as 
set  forth  lu  paragraph  3,  and  says  he  never 
saw  the  said  Percy  Hackett  complainant, 
and  was  never  employed  by  him,  except  as 
hereinafter  set  forth.  The  defendant  says: 
That  he  was  employed  to  prosecute  said  suit 
by  the  widow  of  Ralph  Hackett,  who  was  the 
only  person  pecuniarily  damoged  by  his 
death.  That  the  estate  of  Ralph  Hackett,  de- 
ceased, had  been  subsequently  closed,  and 
whatever  property  he  had  had  been  divided 
under  the  statute.    That  the  widow  desired 


•r«r  otbar  cues  ■«•  same  topic  and  section  NUMBER  In  Dae.  &  Am.  Digs.  U07  to  date,  *  Reporter  Indexe* 


Digitized  by  VjOOQ  l€ 


552 


122  NORTHWESTERN  BBPORTER. 


(Micb. 


to  bring  a  suit  against  the  Wilson  Transit 
Company  for  her  bencSt  for  damages  arising 
out  of  the  negligence  of  the  said  Wiloon 
Transit  Company  and  its  servants,  resulting 
in  a  collision  between  the  boat  of  which  the 
said  Ralph  Hackett  was  master,  and  one  of 
the  boats  of  the  Wilson  Transit  Company  in 
the  St.  Clair  Flats  Canal,  causing  the  death 
of  the  said  Ralph  Hackett,  and  also  of  the 
lookout  That  the  wheelman  on  the  boat 
Torrent,  being  the  boat  on  which  Ralph  Hack- 
ett was  master,  had  disappeared  to  parts  un- 
known, and  the  claim  for  damages  against 
the  Wilson  Transit  Company  could  not  be 
proven  without  the  testimony  of  the  widow 
of  Ralph  Hackett,  who  was  on  board  at  the 
time.  That  considerable  friction  arose  be- 
tween tlie  widow  of  Ralph  Hackett  and  his 
next  of  kin,  including  complainant,  arising 
out  of  the  settlement  of  his  estate,  and  the 
said  widow  refused  to  have  anything  to  do 
with  the  prosecution  of  said  case  against  the 
said  Wilson  Transit  Company  In  case  any  of 
the  next  of  kin  were  In  any  manner  connect- 
ed with  It.  That  this  defendant  advised  the 
widow  that  It  would  be  necessary  to  bring  a 
suit  In  the  name  of  the  administrator  of  the 
estate  to  recover  for  her,  and  this  defendant 
was  advised  by  her  that  the  administrator, 
Percy  Hackett,  complainant,  after  closing  up 
the  matters  of  the  estate,  had  ofCered  to  re- 
sign and  let  her  be  appointed  for  the  pur- 
pose of  prosecuting  her  suit  against  the  Wil- 
son Transit  Company,  in  order  that  she 
might  fully  control  the  same.  This  defend- 
ant advised  her  that  he  could  fully  control 
said  case,  and  that  he  would  guarantee  her 
that,  while  he  would  have  to  bring  the  suit 
in  the  name  of  the  administrator,  he  would 
make  all  settlements  directly  with  her,  as 
said  suit  was  prosecuted  solely  for  her  inter- 
ests, and  with  that  understanding  the  widow 
employed  this  defendant  to  prosecute  said 
suit  under  an  arrangement  by  which  defend- 
ant would  advance  all  moneys  necessary  in 
the  prosecution  of  said  suit,  and  in  case  of 
recovery  the  expenses  were  to  be  deducted 
and  the  balance  divided  equally  between  this 
defendant  and  the  said  widow.  That  this  de- 
fendant advanced  money — all  the  money  la 
the  prosecution  of  said  suit,  and  neither  the 
complainant  nor  any  other  person  contribut- 
ed a  cent  to  the  expense  thereof.  It  further 
avers  that  defendant  then  had  a  talk  with 
the  attorney  for  said  estate,  who  approved  of 
the  arrangement,  and  agreed  that  no  proceed- 
ings should  be  taken  to  discharge  the  admin- 
istrator and  close  the  estate  until  such  time 
as  the  said  suit  could  be  tried  and  determin- 
ed." The  answer  sets  out  In  detail  defend- 
ant's version  of  the  litigation  and  settlement, 
and  avers  that  the  attorney  of  the  estate 
was  advised  of  what  was  done.  It  also  avers 
a  payment  of  all  the  expenses  and  costs  of 
the  litigation  and  settlement  with  the  widow 
and  a  payment  to  her  of  her  full  share  of 


the  Judgment  After  issue  was  joined,  the 
case  was  tried,  and  a  decree  entered  in  favor 
of  complainant  for  $1,250  and  hiterest  The 
case  is  bronght  here  by  appeal. 

There  is  some  conflict  in  the  testimony  giv- 
en by  the  attorney  for  the  estate  and  the  tes- 
timony of  Mr.  Mcllwain  which  can  be  largely 
accounted  for  because  of  the  lapse  of  time. 
There  are  certain  things,  however,  that  are 
clearly  established:  First  that  Ralph  Hackett 
let  a  widow  and  left  no  children,  and  it  is  not 
established  In  the  record  that  at  the  time  of  his 
death  any  one  was  dependent  upon  him  except 
hisVldow.  Second,  that  another  man  was  hurt 
atthetlme  of  his  death,  for  which  suit  was  suc- 
cessfully prosecuted  by  Mr.  Mcliwaln.  Third, 
that  Mr.  Mcllwain  made  a  written  contract 
with  the  widow  for  the  prosecution  of  the  suit 
prior  to  July,  1899.  Fourth,  that  Mr.  Mcllwain 
consulted  with  the  attorney  for  the  estate  be- 
fore the  suit  was  brought  and  received  from 
him  a  letter,  as  follows:  "Detroit  Mich., 
July  13,  '99.  Mr.  Mcllwain,  Atty.,  Port  Hu- 
ron, Mich.— Dear  Sir:  I  to-day  received  a 
letter  from  Mr.  Hackett  the  administrator, 
in  which  he  Informs  me  that  he  has  had  a 
conference  with  the  other  members  of  his 
family,  and  in  which  they  permit  me  to  make 
the  arrangements  with  you  on  the  lines  laid 
down  at  our  conference.  They  expressly  pro- 
vide that  they  will  not  have  to  lay  out  any 
money  in  the  matter  and  will  hot  assume  any 
risk  or  any  liability  for  costs  in  case  the  mat- 
ter is  lost  Xours  respectfully."  Fifth,  that 
after  the  case  was  settled  Mr.  Mcllwain  paid 
all  of  the  expenses  of  the  litigation,  and  paid 
the  balance  over  to  the  widow,  as  he  had 
agreed.  Notwithstanding  the  conflict  In  the 
testimony,  we  think  the  defendant  has  estab- 
lished his  version  of  the  transaction,  and 
that  the  complainant  has  not  shown  a  case 
calling  for  the  Intervention  of  a  court  of 
equity. 

The  decree  of  the  court  is  reversed,  and 
the  bill  of  complaint  Is  dismissed,  with  costs. 


PULPWOOD   CO.   V.   PERRT. 
(Supreme  Court  of  Michigan.    Sept  21,  1909.) 

1.  CoNTBACXs  (I  237*)— Consideration— MoD- 

IFIOATION  OF  OBIOINAL  CONTBACT. 

Where  defendant  contracted  to  deliver  a 
certain  amount  of  wood  to  plaintiff  within  a  rea- 
sonable time,  but  failed  to  do  bo,  a  subsequent 
contract,  made  before  defendant  had  fully  per- 
formed the  original  contract,  which  modified 
that  contract  by  increasing  the  price  per  cord, 
extending  the  time  of  delivery,  etc.,  was  based 
on  a  samcient  consideration. 

[Ed.   Note.— For   other  cases,   see   Contracts, 
Cent.  Dig.  §§  1119-1122 ;    Dec.  Dig.  i  237.»] 

2.  Contracts  (J  246*)  —  Construction— Con- 
ditions. 

Defendant  contracted  to  deliver  to  plaintiff 
a  quantity  of  polpwood  in  certain  years,  plain- 
tin  advancing  large  amounts  under  the  con- 
tract, but  the  contract  was  modified  several 
times,  and  the  last  modification  was  made  when 
defendant  had  not  fully  performed  the  then  ex- 


•For  otHer  cw«a  te«  (am*  toplo  and  McUon  NUMBEK  In  Dec.  &  Am.  Dtgi.  1907  to  data,  ft  Raportar  Indexas 


Digitized  by  VjOOQ  l€ 


Mltib.) 


PULPWOOD  CO.  V.  PERRY. 


653 


Uting  contract  and  provided  that  the  original 
contract  was  thereby  modified  as  to  time  of  de- 
livery, the  price,  etc.,  but  that  the  prior  con- 
tract should  stand  except  as  specified,  and  de- 
fendant should  be  liable  for  all  damages  because 
of  nonfulfillment  of  said  contract,  unless  the 
conditions  thereof  as  modified  were  fulfilled, 
which  should  be  accepted  as  full  performance  oi 
the  original  contract  The  modified  contract,  in 
addition  to  allowing  additional  time  for  perform- 
ance, increased  the  price  a  certain  amount  per 
cord.  held,  that  the  modified  contract  was  con- 
ditional, and  defendant  was  not  entitled  to  the 
increased  price,  unless  be  subsequently  perform- 
ed the  modified  contract 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Dec.  Dig.  S  246.*] 

Error  to  Circuit  Court,  Chippewa  County; 
Joseph  H.  Steere,  Judge. 

Action  by  the  Pulpwood  Company  against 
Frank  Perry.  Judgment,  on  a  directed  ver- 
dict for  plaintiff.  In  a  less  sum  than  tliat 
claimed,  and  it  brings  error.  Reversed,  and 
judgment  entered  for  the  amount  claimed. 

Argued  before  MONTGOMERY,  OSTRAN- 
DER,  HOOKER,  MOORE,  and  McALVAT,  JJ. 

Sharpe  &  Handy  (Moses  Hooper,  of  coun- 
sel), for  appellant.  Warner  &  Sullivan 
(Shaw,  Warren,.  Cady  &  Oakes,  of  counsel), 
for  appellee. 

MOORE.  J.  On  September  25,  1903,  plain- 
tiff and  defendant  entered  into  a  contract 
whereby  defendant  was  to  deliver  40,0(K) 
cords  of  pulpwood  to  plaintiff  between  the 
first  day  of  April  and  the  first  day  of  Novem- 
ber in  each  year,  for  the  years  1904,  1905, 
1906,  1907,  and  1908.  The  Pulpwood  Com- 
pany was  to  pay  therefor  $9  per  cord,  deliver- 
ed on  board  cars  at  the  mills  of  the  Pulp- 
wood Company.  The  Pulpwood  Company 
was  to  advance  $3  per  cord  on  this  pulpwood 
when  it  was  cut  and  piled.  For  the  fulfill- 
ment of  this  contract  Perry  executed  a  bond 
to  the  Pulpwood  Company  in  the  sum  of 
$250,000  with  sureties.  On  April  11,  1904, 
the  contract  was  modified  with  the  assent' 
of  the  sureties.  In  December,  1005,  the  con- 
tract was  agalnr  modified  with  the  assent  of 
the  sureties.  On  April  29,  1907,  the  contract 
was  again  modified.  Mr.  Perry  failed  to 
carry  out  this  contract.  This  action  was 
brought  to  recover  from  Mr.  Perry  money  ad- 
vanced to  him,  and  for  damages  for  failure  to 
deliver  the  pulpwood  according  to  the  con- 
tract. Defendant  gave  notice  of  set-off  and 
recoupment  and  claimed  damages  on  account 
of  an  alleged  violation  of  the  contract  by  the 
Pulpwood  Company.  Before  the  trial  of  said 
cause  a  stipulation  was  signed  by  the  parties 
to  this  suit,  in  which  it  was  agreed  that  the 
following  were  the  undisputed  facts:  "(1) 
Plaintiff  and  defendant  executed  and  deliver- 
ed, each  to  the  other,  the  written  agreements 
set  out  in  the  declaration.  (2)  Prior  to  April 
29,  1907,  defendant  had  failed  to  deliver 
pulpwood  according  to  the  terms  of  the  con- 
tracts, and  plaintiff  had  purchased  approxi- 


mately five  thousand  cords  of  pulpwood  along 
the  line  of  Duluth,  South  Shore  &  Atlantic 
Railway,  between  the  headwaters  of  the  Ta- 
quamenah  river  and  Sanlt  Ste.  Marie,  Mich., 
which  defendant  claimed  to  be  within  the  ter- 
ritory reserved  to  him  under  the  provisions  of 
the  eighth  paragraph  of  the  contract  of  Sep- 
tember 25, 1003.  (3)  After  AprU  29, 1907,  the 
defendant  delivered  to  plaintiff  about  twenty 
one  thousand  (21,000)  cords  of  pulpwood,  and 
no  more.  (4)  After  April  29,  1907,  plaintiff 
credited  defendant  upon  Its  books,  and  Issued 
to  defendant  credit  statements  for  all  pulp- 
wood delivered,  as  fast  as  delivered,  at  the 
price  of  $9.50  per  cord,  with  place  of  de- 
livery at  Long  Tail  Point,  as  provided  in 
the  contract  of  April  29,  1907.  (5)  Plaintiff 
is  entitled  to  judgment  herein  upon  consid- 
eration of  all  the  claims  put  in  issue  by  the 
pleadings  herein,  as  follows:  (a)  In  any 
event,  in  the  sum  of  $120,265.54.  (b)  If  de- 
fendant is  entitled  to  credit  for  pulpwood 
delivered  after  April  29,  1907,  according  to 
the  original  contract  only,  and  not  accord- 
ing to  the  contract  of  April  29,  1907,  then  in 
the  sum  of  $151,147.  Dated  March  1,  A.  D. 
1909."  Upon  filing  this  stipulation  both  par- 
ties rested,  and  the  court  directed  a  verdict 
in  favor  of  the  plaintiff  in  the  sum  of  $12U,- 
265.64. 

The  only  question  is  whether  the  court 
should  have  directed  a  verdict  in  favor  of  the 
plaintiff,  in  the  sum  of  $151,147.  The  an- 
swer to  this  question  will  depend  upon  the 
construction  to  be  given  to  the  contract  as 
modified  April  27,  1907.  It  does  not  appear 
that  the  sureties  were  consulted  as  to  this 
modification.  At  the  time  it  was  made  Mr. 
Perry  had  not  fully  performed  the  agreement 
in  the  existing  contract  Advances  had  been 
made  to  him  in  large  amounts.  The  new 
contract  gave  him  additional  time  in  which  to 
perform  bis  contract  It  modified  in  his 
favor  the  lengths  of  the  pulpwood.  It  in- 
creased the  price  $1.40  a  cord.  It  concluded 
as  follows :  "Otherwise  than  above  specified, 
said  contract  shall  stand  and  be  in  full  force 
and  said  Perry  and  his  sureties  shall  be  li- 
able for  all  damages,  on  account  of  nonfulfill- 
ment of  said  contract,  unless  the  conditions 
of  said  contract,  as  herein  modified  are  ful- 
filled. But  if  said  contract,  as  herein  modi- 
fled,  shall  be  fulfilled,  such  fulfillment  shfili 
be  accepted  as  full  performance  and  dis- 
charge of  said  original  contract"  It  is  the 
contention  of  plaintiff  that  this  made  the  con- 
tract a  conditional  one,  in  that  it  allows  Mr. 
Perry  the  bonus  of  $1.40  per  cord  only  on 
condition  that  he  delivers  the  full  amount 
of  pulpwood  under  the  contract;  that  if  the 
defendant  is  entitled  to  recover  the  addition- 
al amount  of  $1.40  per  cord,  whether  he  de- 
livers the  full  amount  specified  in  the  con- 
tract or  not,  then  there  can  be  no  purpose 
in  inserting  this  paragraph.  It  is  the  conten- 
tion of  defendant  "that  the  necessary  infer- 


•Por  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


554 


122  NOKTHWESTKEN  REPOBTEB. 


(Mlcta. 


ence  is  that  the  modification  does  not  displace 
tlte  original,  In  the  one  particular  of  the  lia- 
bility for  damages,  except  upon  performance ; 
that  the  intent  of  the  sentence  was  to  save 
the  right  to  damages  in  the  event  of  failure, 
and  it  should  be  construed  as  though  there 
were  added  to  it:  'And  said  Perry  and  his 
sureties  shall  thereby  be  released  from  any 
liability  for  damages  for  nonfulfillment  of 
said  original  contract.'  Such  a  construction 
does  no  violence  to  the  language,  is  gram- 
matical, in  harmony  with  the  previous  ex- 
tensions of  the  contract,  which  in  every  in- 
stance have  been  carefully  drawn  so  as  not 
to  release  the  sureties,  and  does  not  work  a 
forfeiture.  In  addition  to  all  this  it  is  ac- 
cording to  the  practical  construction  placed 
upon  it  by  the  parties  themselves."  It  is  fur- 
ther claimed  "that  the  contract  In  question  Is 
divisible;  that  there  has  been  partial  perform- 
ance by  defendant,  accompanied  by  payment 
on  the  basis  of  $10.40  per  cord  for  21,000  cords 
of  pulpwood;  that  the  payment  was  volun- 
tary ;  that  the  defendant  has  relied  upon  such 
payment,  and  plaintiff  is  estopped  from  at- 
tempting to  recover  the  amount  in  dispute^" 
There  is  no  doubt  the  modified  contract  was 
based  upon  sufficient  consideration.  See  Blod- 
gett  V.  Foster,  120  Mich.  392,  79  N.  W.  625, 
and  the  cases  there  cited.  If  it  had  been  fully 
performed,  the  parties  thereto  would  have 
been  bound  by  its  terms.  It  has  not,  how- 
ever, been  performed.  It  was  stated  on  the 
argument,  and  apparently  conceded,  that  Mr. 
Perry  has  abandoned  the  contract  with  a 
large  part  of  its  agreements  unfulfilled.  Is 
be  entitled  to  have  the  modified  agreement, 
though  unperformed  by  him,  so  construed  as 
to  entitle  him  to  receive  $1.40  a  cord  more 
for  the  wood  delivered  by  him  after  the  modi- 
fled  contract  was  made  than  he  would  have 
received  under  the  original  contract?  The 
modified  contract  states:  "Now,  therefore, 
In  consideration  of  the  premises  and  at  the 
request  of  the  said  Perry,  and  in  considera- 
tion of  one  dollar  paid  by  said  Perry  to  said 
Pulpwood  Ctampany,  said  original  contract 
Is  hereby  further  modified  in  respect  to  time 
of  delivery,  price  to  be  paid  and  point  of  final 
scale,  as  follows."  An  examination  of  the 
original  contracts  will  show  that  each  of 
these  modifications  made  it  easier  and  more 
profitable  for  Mr.  Perry  than  did  the  terms 
of  the  existing  contracts.  If  the  last  para- 
jn'aph  of  the  modified  contract  Is  to  be  con- 
strued as  relating  simply  to  the  release  of  Mr. 
Perry  and  his  sureties  from  any  liability  for 
damages  for  nonfulfillment  of  the  original 
contract,  it  would  seem  to  be  a  very  unbusi- 
nesslike contract.  It  is  evident  the  plaintUT 
wanted  pulpwood,  and  was  anxious  to  have 
Mr.  Perry  furnish  the  amount  he  had  agreed 
to  furnish,  and  was  willing  to  give  him  addi- 
tional time  and  an  increased  price  if  he  would 
do  so.  We  think  it  equally  clear  from  the 
Inncruapre   of   the   modified   contract   that   It 


was  not  expected  by  either  of  the  parties 
that  Mr.  Perry  should  have  the  increased 
price  unless  he  substantially  performed  the 
modified  agreement 

The  Judgment  is  reversed,  and  one  may  be 
entered  here  for  the  amount  stated  in  the 
filed  stipulation,  with  legal  Interest  added. 


In  re  PHILLIPS. 
(Supreme  Court  of  Michigan.    Sept  21,  1909.) 

1.  IHSANE    PebSOKS    (I    7*)  —  IWQCISITIOKB — 

Pbocedubx. 

Proceeding  for  an  adjudication  of  insanity 
against  an  Individual  require  the  strictest  com- 
pliance with  statutory  reguiremeutB ;  the  deter- 
mination affecting  his  rights  to  the  enjoyment  of 
life,  liberty,  and  property. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Dec.  Dig.  i  7.»J 

2.  IRSANB  PEBfiONS(5J19,20*)— iNquiaiTION- 

Vaudity. 

Un  May  21st  proceedings  to  have  a  person 
confined  as  an  insane  person  were'begun.  On 
the  same  day,  an  order  was  made  appointing 
two  physicians  to  examine  the  alleged  lunatic, 
and  to  certify  to  her  condition  on  or  before  May 
22d  at  4  p.  m. ;  "that  being  the  time  and  plnce 
theretofore  assigned  for  bearing  the  applica- 
tion.!' On  May  22d,  an  order  was  made  for  the 
hearing  of  the  application  on  May  23d  at  4  p. 
m.,  and  on  the  same  date,  May  22d,  a  hearing 
was  had,  and  an  order  declaring  her  insane  and 
committmg  her  to  an  asylum  was  made.  Held 
that  the  hearing  being  had  24  hours  before  the 
time  fixed  in  the  order,  the  adjudication  of  in- 
sanity and  commitment  was  void  for  want  of 
jurisdiction,  and  it  was  error,  in  a  subsequent 
proceeding  to  have  a  guardian  appointed  of  the 
person  and  property  of  the  alleged  insane  per- 
son, to  admit  the  order  in  evidence. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Dec.  Dig.  H  19.  28.*] 

3.  Insane  Pebsons  ({  2*)— Admission  of  In- 
sanity—Effect. 

No  admission  of  insanity  can  fix  the  status 
of  unsound  mind  in  the  person  making  the  ad- 
mission ;  the  law  prescnbing  the  only  way  a 
determination  of  insanity  may  be  declared. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Dec.  Dig.  %  2.*] 

4.  Insane  Persons  (g  2*)— Evidence  of  In- 
competency— Discontinuance  of  Pboceed- 

INGS    for   RESTOBATION. 

Comp.  Laws  1S97,  {  1942,  providing  for 
proceedings  to  secure  an  order  of  restoration  of 
soundness  of  mind  after  one  has  been  adjudi- 
cated insane,  is  permissive,  and  not  mandatory, 
and  hence  the  fact  that  proceedings  were  begun 
under  the  act  and  discontinued  was  not  ma- 
terial or  relevant  in  a  subsequent  proceeding 
for  the  appointment  of  a  guardian  for  the  al- 
leged insane  person ;  she  not  being  estopped, 
by  the  proceedings  bej^un  and  discontinued,  to 
object  to  the  proceedings  and  order  declaring 
her   insane. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent  Dig.  (§  27,  30;    Dec.  Dig.  {  2.*J 

5.  Evidence  (|  63*)— Pbesttiiptions— Sanfty. 

All  persons  are  presumed  to  be  sane,  and  in 
every  proceeding  the  burden  of  proving  insanity 
rests  upon  the  one  alleging  it ;  the  question  be- 
ing one  to  be  tried  out  in  the  proceeding  then 
pending  where  it  is  raised. 

[Ed.    Note.— For   other  cases,   see   Evidence, 
Cent.  Dig.  S  83 ;  Dec.  Dig.  g  03.*] 


•Far  other  eases  sec  same  topic  and  section  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  *  Reporter  IndezM 


Digitized  by  VjOOQ  l€ 


Mlcb.) 


IN  RE  PHILLIPS. 


655 


6.  JUDGMKNT  (J  493*)— COIXATEBAI,  ATTACK— 

JuBisDiorioHAi.  Defects. 

Jurisdictional  defects  which  appear  upon 
the  face  of  proceedings  may  be  raised  at  any 
time  between  the  parties,  even  in  a  collateral 
proceeding,  when  the  rights  of  Innocent  third 
persons  are  not  concerned. 

[Ed.  Note. — For  other  cases,  see  Judgment, 
Cent.  Dig.  {  831;    Dec  Dig.  |  493.*] 

7.  Insane  Pebsons  (J  7*)— Inquisition— Na- 

TUBE  OF  PBOCEEDINO. 

The  proceeding  leading  to  an  adjudication 
of  insanity  is  not  an  adversary  proceeding,  but 
one  in  the  interest  of  the  public  to  protect  de- 
ficient citizens,  and  hence  is  not  a  proceeding 
where  any  act  or  admission  of  respondent  could 
prejudice  an  adverse  party. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Dec.  Dig.  {  7.*] 

&  Insane  Pebsons  (S  2*)— Inquisition— Evi- 
dence. 

In  a  proceeding  for  the  appointment  of  a 
guardian  for  an  alleged  insane  person,  evidence, 
properly  admitted,  held  not  to  show  insanity. 

[Ed.  Note.— For  other  cases,  see  Insane  Pei^ 
sons.  Cent.  Dig.  f  9;    Dec.  Dig.  (  2.*] 

Error  to  Circuit  Court,  Houghton  County; 
Albert  T.  Streeter,  Judge. 

Application  by  Arthur  Phillips  for  the  ap- 
pointment of  a  guardian  for  Gertrude  O. 
Phillips,  an  alleged  Insane  person.  From  a 
judgment  appointing  a  guardian,  respond- 
ent brlngrs  error.  Reversed,  and  new  trial 
granted. 

See,  also,  154  Mich.  139,  117  N.  W.  630. 

Argued  before  BLAIB,  0.  J.,  and  GRANT, 
MONTGOMERY,  McALVAY,  and  BROOKE, 
JJ. 

Hanchette  &  Lawton,  for  appellant  Ger- 
trude C.  Phillips.  W.  J.  Galbralth,  for  ap- 
pellee Arthur  Phillips. 

McALTAT,  J.  An  application  was  made 
to  the  probate  court  of  Houghton  county  for 
the  appointment  of  a  guardian  of  the  person 
and  property  of  Gertrude  C-  Phillips,  upon 
the  ground  that  she  was  mentally  incom- 
petent, by  reason  of  insanity,  to  hare  charge, 
custody,  and  management  of  her  person  and 
property.  The  petitioner  was  a  son  and  a 
prospective  heir  at  law.  It  was  alleged  that 
the  estate  was  of  considerable  amount.  A 
hearing  was  had,  the  prayer  of  the  petition- 
er granted,  and  the  guardian  of  the  person 
and  estate  appointed.  A  review  of  the  ac- 
tion of  the  probate  court  was  sought  by 
writ  of  certiorari  to  this  court,  and  it  was 
held  in  this  case  not  to  be  the  proper  rem- 
edy. 154  Mich.  139,  117  N.  W.  630.  An  ap- 
peal was  then  had  from  this  order  and  de- 
cree of  the  probate  coiu't,  and  the  cause  was 
heard  in  the  circuit  court  for  said  county 
before  the  court  and  a  Jury.  A  verdict  was 
rendered  that  the  prayer  of  the  petition  be 
granted.  The  case  is  before  us,  upon  writ 
of  error,  for  review. 

The  principal  question  raised  by  the  er- 
rors assigned  is  that  the  court  should  have 
Instructed  a  verdict  for  respondent  on  the 
ground  that  there  was  no  evidence  in  the 


case  showing  insanity.  It  appears  that  on 
May  21,  1902,  proceedings  were  begun  by 
John  Phillips,  the  husband  of  respondent, 
praying  that  she  be  admitted  as  a  private 
patient  to  the  Upper  Peninsula  Hospital  for 
the  Insane,  as  an  insane  person.  On  the 
same  day  an  order  was  made  appointing  two 
reputable  physicians  to  examine  respondent 
as  to  h6r  alleged  insanity,  and  to  certify  to 
her  condition  as  to  sanity  on  or  before  May 
22,  1902,  at  4  o'clock  p.  m.;  '*that  being  the 
time  and  place  heretofore  assigned  for  hear- 
ing the  application."  On  May  22,  1902,  an 
order  was  made  for  hearing  said  application 
on  May  23,  1902,  at  4  o'clock  p.  m.,  and  on 
the  same  date.  May  22,  1902,  a  hearing  was 
had,  and  the  order  was  made  declaring  her 
Insane,  and  committing  her  to  the  hospital 
as  a  private  patient.  She  remained  there 
about  six  months,  and  was  discharged. 
Since  that  time  she  had  been  at  her  home 
without  restraint,  going  about  her  own  af- 
fairs and  transacting  business  for  herself. 

The  record  shows  that  upon  the  trial  of 
this  case  the  only  evidence  offered  by  peti- 
tioner related  to  these  proceedings  had  In 
probate  court,  from  which  this  appeal  is 
taken,  and  the  proceeding  to  commit  re- 
spondent to  the  Hospital  for  the  Insane 
above  described,  and  consisted  of:  (1)  Ex- 
hibit A,  which  was  the  petition,  order  of 
hearing,  the  order  appointing  the  guardian, 
and  the  opinion  and  finding  of  the  probate 
court  in  the  proceedings  appealed  from  In 
the  case  at  bar.  (2)  Exhibit  B,  which  was 
proof  of  service  of  notice  of  appeal  and  no- 
tice of  trial.  These  two  exhibits  composed 
the  material  parts  of  the  flies  and  records 
in  the  case,  and  were  received  in  evidence. 

(3)  Petitioner  also  offered  in  evidence  Ex- 
hibit C,  which  was  a  certified  copy  of  the 
order  of  the  probate  court  made  May  22, 
1902,  declaring  Gertrude  Phillips  insane,  and 
ordering  her  to  be  removed  to  the  hospital 
as  a  private  patient  Counsel  for  respond- 
ent objected  to  the  admission  of  this  order 
because  it  was  not  accompanied  by  the  rec- 
ord of  the  proceedings;  that  it  was  void  be- 
cause no  proper  service  was  had,  and  the 
hearing  was  premature,  and  respondent  was 
not  represented  by  a  guardian  ad  litem.  The 
objection  was  overruled,  and  an  exception 
taken.  -The  record  of  these  proceedings  was 
afterwards  offered  by  respondent  for  the 
purpose  indicated,  and  received  in  evidence. 

(4)  Petitioner  also  offered  in  evidence  Ex- 
hibit D,  being  a  copy  of  a  petition  of  Mrs. 
Phillips  filed  In  probate  court  for  an  order 
declaring  her  to  be  restored  to  soundness  of 
mind,  dated  December  27,  1907,  and  Exhibit 
E,  being  a  copy  of  an  order  made  by  said 
court,  dated  March  10,  1908,  withdrawing 
said  petition  on  her  motion,  and  adjudging 
costs  against  her,  taxed  by  the  court,  at  the 
sum  of  ?72.!50.  Objection  was  made  to  the 
admission  of  both  these  exhibits  because 
they  were  immaterial  and  irrelevant  to  the 


•For  otbar  cases  Me  same  topic  and  section  NUMBER  in  Dec.  ft  Am.  Digs.  UOT  to  dat«,  A  Reporter  Indexes 

Digitized  by  LjOOQ  l€ 


556 


122  NORTHWESTERN  RBPORTER. 


(Mlcb. 


Issue.  The  objections  -were  overruled,  and 
respondent  excepted.  No  further  evidence 
was  offered  by  petitioner,  and  he  rested  his 
case.  The  question  was  again  raised  at  the 
close  of  the  case  by  request  to  charge  the 
Jury  to  return  a  verdict  for  respondent. 

Proceedings  taken  for  an  adjudication  of 
Ipsanlty  against  an  Individual  should  re- 
quire the  strictest  compliance  with-  all  the 
statutory  requirements  provided.  The  de- 
termination affects  the  rights  of  the  in- 
dividual to  the  enjoyment  of  life,  liberty, 
and  property.  Courts  will  ever  protect  tie 
rights  of  the  individual  who  is  so  unfor- 
tunate as  to  be  called  upon  to  make  a  show- 
lug  to  maintain  his  or  her  mental  integ- 
rity. It  Is  apparent  that  the  original  pro- 
ceedings offered  in  evidence  did  not  comply 
with  the  statute.  The  record  shows  that 
the  petition  was  filed  May  21st;  the  order 
for  bearing  was  made  May  22d  to  be  held 
May  23d  at  4  o'clock  p.  m.  This  hearing 
was  had  24  hours  before  the  time  fixed  In 
the  order,  and  the  respondent  was  declared 
insane  and  committed  to  an  asylum. 
Whether  this  was  purposely  done  or  not  we 
cannot  )>ay,  but  It  is  significant  that  this 
order  determining  insanity  was  made  on  the 
date  and  at  the  hour  the  medical  experts 
were  required  to  report,  by  an  order  which 
recited  that  this  was  the  time  fixed  for  the 
hearing  of  the  application.  This  order  is 
shown  to  be  void  because  made  without  Ju- 
risdiction. Respondent  was  declared  Insane, 
and  committed  within  24  hours  after  the 
husband's  petition  was  filed.  To  hold  this 
to  be  an  orderly  Judicial  proceeding  would 
be  a  travesty  upon  the  administration  of 
Justice.  No  reason  for  such  remarkable 
haste  is  even  offered.  This  respondent  was 
not  a  raving  maniac.  Her  husband  in  his 
petition  alleged  "that  [she]  has  delusions; 
thinks  somebody  is  trying  to  kill  her,  and 
worries  about  members  of  the  famiiy; 
thinks  that  they  have  been  injured,  and 
has  other  delusions" — as  the  reasons  for 
applying  to  the  court  for  an  adjudication  of 
Insanity.  The  court  was  in  error  in  not  ex- 
cluding from  the  case  this  order  of  adju- 
dication of  Insanity  and  commitment  to  the 
Hospital  for  the  Insane. 

The  petition  for  restoration  to  soundness 
of  mind  made  by  respondent  in  1907,  and  the 
order  discontinuing  such  proceedings,  were 
offered  in  the  case  at  bar  as  part  of  petition- 
er's showing  of  the  insanity  of  respondent. 
The  objection  made  was  that  they  were  Im- 
material and  irrelevant  Petitioner  insists 
that  they  were  material  and  relevant  to  show 
that  respondent  is  estopped  from  making  ob- 
jection to  the  proceedings  and  order  declar- 
ing her  insane.  An  admission  of  insanity  can 
never  fix  the  status  of  unsound  mind  in  the 
person  making  the  admission.  The  law  pre- 
scribes the  only  way  a  determination  of  in- 
sanity may  be  declared.  It  is  doubtful 
whether  In  any  case,  where  no  rights  of  in- 
nocent third  parties  Intervene,  any  conduct 


of  any  person  will  estop  blm  from  question- 
ing in  any  proceeding  the  regularity  and  de- 
termination of  his  Insanity.  The  statute  pro- 
viding for  proceedings  to  secure  an  order  of 
restoration  of  soundness  of  mind  after  one 
has  been  adjudicated  insane  is  not  manda- 
tory. It  is  permissive  merely.  Section  1942, 
Comp.  Laws.  The  proceedings  begun  and 
discontinued  under  the  restoration  .act  were 
not  material  or  relevant  to  the  issue,  and 
should  not  have  been  admitted.  The  doctrine 
of  estoppel  is  not  applicable.  All  persons 
are  presumed  to  be  sane,  and  in  every  pro- 
ceeding the  burden  of  proving  insanity  rests 
upon  the  one  challenging  the  sanity  of  the  in- 
dividual. It  is  always  a  question  to  be  tried 
out  in  the  proceeding  then  pending  where  it 
was  raised.  It  is  intimated  that  this  was  a 
collateral  proceeding  in  which  the  regularity 
and  validity  of  the  adjudication  of  insanity 
could  not  be  attacked.  Whether  this  is, 
strictly  speaking,  a  collateral  proceeding  we 
do  not  determine.  It  is  sufSclent  answer  to 
the  argument  to  say  that  Jurisdictional  de- 
fects which  appear  upon  the  face  of  the  pro- 
ceedings may  be  raised  at  any  time  between 
the  parties,  even  in  a  collateral  proceeding, 
when  the  rights  of  innocent  third  persons 
are  not  concerned.  Palmer  v.  Oakley,  2 
Doug.  (Mich.)  433,  47  Am.  Dec.  41,  and  cases 
cited  and  digested.  GUlett  v.  Needham,  37 
Mich.  143,  and  footnote;  Breen  v.  Pangbom, 
51  Mich.  29,  16  N.  W.  188.  The  proceeding 
leading  to  an  adjudication  of  Insanity  Is  not 
an  adversary  proceeding.  It  is  a  proceed- 
ing in  the  interest  of  the- public  to  protect  de- 
ficient citizens.  It  Is  therefore  not  a  pro- 
ceeding where  any  act  or  admission  of  re- 
spondent could  prejudice  an  adverse  party. 
The  evidence  objected  to  should  not  have 
been  admitted.  Defendant  then  is  left  to 
rely  entirely  upon  the  cross-examination  of 
respondent  for  any  proof  of  her  alleged  insan- 
ity. There  was  no  proper  evidence  in  the 
case  to  go  to  the  Jury  at  the  time  petition- 
er rested.  At  that  time  a  motion  to  dismiss 
the  proceedings,  if  made,  should  have  been 
granted. 

Unless  we  find  some  evidence  tending  to 
show  respondent  Insane  contained  in  her 
cross-examination,  petitioner  must  fail  in 
these  proceedings.  We  have  examined  her 
testimony  to  discover  such  evidence.  We  find 
her  a  woman  acquainted  with  business  affairs, 
one  who  has  intelligently  dealt  in  stocks, 
and  who  understands  how  and  when  to  buy, 
and  gives  the  reasons  therefor.  She  knows 
her  property  and  her  transactions  relative  to 
it  The  vigorous  cross-examination  by  coun- 
sel for  petitioner  continued  for  several  hours, 
with  the  purpose  of  showing  her  insane  con- 
dition. We  think  that  In  this  there  was  a 
failure.  It  shows  more  knowledfte  of  nffairs, 
better  understanding  of  questions  asked,  and 
less  confusion  in  the  answers,  than  like  ex- 
amination shows  of  the  average  witness  In 
court.  We  do  not  discover  in  this  record  any 
evidence  of  respondent's  mental  incapadtyt 


Digitized  by  VjOOQ  l€ 


Mich.) 


BEATTFE  v.  DETROIT  UNITED  RT. 


557 


and  we  have  all  such  parts  of  tbe  record 
certified  which  are  necessary  to  determine 
the  questions  raised.  Petitioner  produced  no 
lay  witness  or  medical  experts,  and  without 
doubt  the  Jury  was  influenced  hy  this-  im- 
proper proof,  and  felt  as  did  the  Judge  of 
probate  in  his  statement  In  his  finding  of- 
fered by  petitioner  and  received  in  evidence 
In  Exhibit  A.  This  is  quoted  to  show  the 
effect  of  the  adjudteatlon  of  insanity  allowed 
In  evidence  upon  the  ordinary  mind.  He 
said:  "I  find  that  Gertrude  Phillips  at  the 
present  time  has  sufficient  sense  and  Judg- 
ment to  transafit  the  ordinary  business  af- 
fairs of  life,  and  I  should  not  appoint  a 
guardian  for  her  person  and  estate  on  the 
parol  proof  presented  at  this  time;  but  the 
records  of  this  court  show  that  on  May  22, 
1902,  she  was  adjudged  insane,  and  this  de- 
cree has  not  been  set  aside  by  an  order  of 
restitution  as  provided  for  by  statute."  The 
court  was  in  error  In  not  charging  the  Jury 
In  favor  of  respondent  as  requested. 

The  Judgment  of  the  circuit  court  is  re- 
versed, and  a  new  trial  granted.  The  re- 
spondent and  appellant  will  recover  costs  of 
both  courts  against  the  petitioner. 


BEATTIB  V.  DETROIT  UNITED  BX. 
(Supreme  Court  of  Michigan.     Sept.  21,  1009.) 

1.  Cabbiebs  (S  280*)— Cabbiage  or  Passen- 
OEBs— Stbeet  Railroads— Cabe  Requiked. 

The  degree  of  care  required  of  carriers  of 
passengers  upon  street  cars  in  securing  the  safe- 
ty of  passengers  entering  or  aligbtiog  is  the 
highest  care  or  the  care  which  a  very  prudent 
person  would  have  nsed  under  the  circumstances. 
[Ed.  Note. — For  other  cases,  see  Carriers, 
Cent.  Dig.  {  1089;    Dec.  Dig.  i  280.*] 

2.  Cabbiebs  (§  280*)— Cabbiaoe  of  Passen- 
gers—Taking  On  ob  Letting  Off  Passen- 
gers—Duty  TO  Stop  Cab. 

It  is  the  duty  of  a  street  car  company  to 
stop  to  take  on  or  let  off  passengers,  the  time 
of  stoppage  being  such  as  to  enable  the  passen- 
ger to  reach  a  place  of  safety,  either  on  the 
street  or  in  the  car  before  it  is  started,  and  the 
company  is  liable  for  injuries  to  a  passenger 
caused  by  a  disregard  of  the  duty. 

[Ed.    Note.— For    other    cases,    see    Carriers, 
Cent.  Dig.  §  1089;    Dec.  Dig.  §  280.*] 

3.  Carriebs  (8  287*)- Carriage  of  Passen- 
gers—Injury TO  Passengeb— Negligence 
of  Conductor. 

A  street  car  stopped  for  the  sole  purpose  of 
talcing  plaintiff  as  a  passenger.  He  was  incum- 
bered with  a  heavy  grip,  and  there  was  snow  on 
the  ground  and  car  steps.  The  conductor  was 
standing  on  tbe  rear  platform  waiting  for  plain- 
tiff to  get  on.  Plaintiff  had  his  grip  in  his  right 
hand,  and  had  hold  of  the  railing  with  his  left 
hand.  When  he  bad  either  one  or  both  feet  on 
the  first  car  step,  and  before  he  had  time  to 
reach  the  platform,  the  conductor  started  the 
car,  and  he  was  thrown  to  the  ground.  It  did 
not  appear  that  his  fall  was  caused  by  any 
cause  except  the  starting  of  the  car.  Held,  that 
the  conductor  was  negligent  as  a  matter  of  law. 

[Ed.    Note. — For   other    cases,    see    Carriers, 
Cent.  Dig.  §  1159;    Dec.  Dig.  S  28T.*] 


4.  Appbai.  and  Ebbob  (J  1060*)  —  Review — 
Habkless  Ebbob— Admission  of  EvioiNCE. 
In  an  action  against  a  street  railway  com- 
pany for  permanent  personal  injuries,  error,  if 
any,  in  admitting  in  evidence  files  and  records 
in  a  former  suit  by  plaintiff  against  defendant 
in  which  plaintiff  recovered,  and  in  which  the 
declaration  claimed  for  permanent  injuries,  and 
in  escludin^  evidence  offered  by  plaintiff  that 
the  declaration  was  drawn  by  bis  attorney  with- 
out his  knowledge  and  therefore  not  conclu- 
sive upon  him,  and  in  holding  that  plaintiff  was 
concluded  from  questioning  the  allegations  of 
the  declaration,  was  not  prejudicial,  where  it 
appeared  from  the  conrt's  charge  In  the  former 
case  that  the  question  of  damages  for  permanent 
injuries  was  taken  from  the  jury,  and  hence 
that  he  had  not  recovered  for  the  permanent 
injuries  that  he  was  claiming  in  the  present  suit, 
and  the  jury  was  instmcted  to  that  effect. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  §«  4153-4160,  4166;  Dec. 
Dig.  I  1050.*] 

Error  to  Circuit  Court,  Wayne  County; 
James  O.  Murfln,  Circuit  Judge. 

Action  by  Robert  ,Beattle  against  the  De- 
troit United  Railway.  Judgment  for  defend- 
ant, and  plaintiff  brings  error.  Reversed, 
and  new  trial  ordered. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MOORE,  McALVAT,  and  BROOKE,  JJ. 

Thomas  J.  Mahon  and  3.  Emmet  Sullivan, 
for  appellant.  Brennan,  Donnelly  &  Van  De 
Mark,  for  appellee. 

McALVAT,  J.  This  is  an  action  brought 
for  personal  Injuries  received  by  plaintiff 
on  account  of  the  claimed  negligence  of  the 
conductor  of  a  car  of  defendant  which  plain- 
tiff was  attempting  to  board  as  a  passenger. 
He  had  stepped  upon  the  first  step  of  the  rear 
platform,  and  taken  hold  of  the  rail  with  one 
hand,  when  the  car  was  suddenly  started  and 
plaintiff  thrown  off.  The  Jury  found  a  ver- 
dict for  defendant  Plaintiff  urges  that  er- 
rors occurred  during  tbe  trial  on  account  of 
which  the  judgment  against  him  should  be 
reversed,  and  a  new  trial  ordered. 
.  The  facts  In  the  case  are  that  plaintiff,  a 
salesman  of  teas  and  coffees  in  Detroit,  went 
about  this  business  carrying  a  heavy  grip. 
He  was  about  67  years  old,  5  feet  6  Inches 
in  height,  and  weighed  258  pounds.  In  Jan- 
uary, 1907,  at  the  corner  of  Michigan  avenue 
and  Griswold  street.  In  Detroit,  he  undertoolt 
to  board  a  west-bound  Baker  street  car  which 
was  standing  still.  He  carried  this  grip  in 
his  right  hand,  took  hold  of  the  rail  dividing 
the  rear  platform  with  his  left  band,  ana 
stepped  upon  the  lower  step  of  the  car. 
There  was  some  snow  on  the  ground  that 
day  and  some  on  the  car  steps.  The  car  con- 
ductor was  standing  on  the  rear  platform 
waiting  for  plaintiff  to  get  on,  and  when  he 
got  in  tbe  place  and  position  above,  described, 
as  the  conductor  claims,  standing  with  both 
feet  on  the  step,  he  signaled  the  motorman 
to  start  the  car,  which  was  done,  and  there- 
upon plaintiff  was  thrown  or  fell  from  the 
car  step.  The  conductor  testifies  that  plain- 
tiff slipped  down  on  tbe  step  in  a  sitting  pos- 


•For  other  cases  see  same  topic  and  sectioa  NUMBER  In  Dec.  A  Am.  Digs,  190T  to  date,  A  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


558 


122  NOKTHWESTBEN  BBPOBTKR. 


(Micb. 


tore,  and  the  car  went  about  10  feet  when 
he  rolled  off.  The  conductor  stopped  the  car 
and  went  back  after  blm,  assisting  him  on  to 
the  car. 

Plaintiff  has  assigned  error  on  the  refusal 
of  the  court  to  charge  the  Jury  as  requested: 
"The  testimony  in  this  case  shows  that  the 
defendant  through  it?  servant  was  guilty  of 
negligence.  You  will  therefore  have  to  con- 
sider the  question  of  the  amount  of  damages 
only."  But  two  persons  testified  as  eyewit- 
nesses to  the  accident— plaintiff  and  the  con- 
ductor of  the  car.  There  Is  not  any  dispute 
in  their  testimony,  except  as  to  whether 
plaintiff  was  on  the  step  with  one  or  both 
feet  at  the  time  the  car  started.  The  con- 
ductor testified  that  he  was  watching  plain- 
tiff, knew  that  be  was  incumbered  with  a 
heavy  grip ;  that  the  snow  was  likely  to  ball 
up  under  his  feet ;  that  he  was  grasping  the 
rail  with  his  left  hand;  that  plaintiff  was 
a  man  past  60  or  more  years  of  age;  and 
that  a  forward  start  of  the  car  would  like- 
ly tend  to  throw  the  boarding  passenger  to- 
ward the  railing  be  was  grasping.  He  tes- 
tified further  on  direct  examination:  "He 
stepped  oh  the  step.  The  car  started.  It  had 
a  Uttle  snow  on,  and  he  slipped  off.  Q.  His 
foot  slipped?  A  Tes.  He  went  in  a  sitting 
posture  on  the  step,  and  the  car  went  maybe 
10  feet  or  so,  and  then  he  rolled  off  in  the 
snow.  There  was  snow  on  the  ground."  On 
cross-examination  he  said:  "Q.  How  far  bad 
Beattie  got  on  the  step  when  he  fell?  A.  He 
was  standing  on  It  Q.  Which  foot  did  he 
have  on?  A.  Both  feet,  I  guess.  Q.  Which 
step?  A.  First  step.  Q.  One  nearest  the 
ground?  A.  Yes.  U.  That  Is  the  step  that 
had  the  snow  on?  A.  Yes."  The  negligence 
charged  Is  that  the  car  was  started  before 
plaintiff  had  opportunity  to  reach  a  place 
of  safety.  The  degree  of  care  required  to 
be  exercised  by  carriers  of  passengers  upon 
steam  railways  In  securing  the  safety  of.  pas- 
sengers entering  or  alighting  is  "the  highest 
care,  or  the  care  which  a  very  prudent  person 
would  have  used  under  the  circumstances." 
This  rule  Is  also  applicable  to  street  cars.  It 
Is  the  duty  of  the  street  car  to  stop  for  the 
purpose  of  taking  on  or  letting  off  passengers. 
"The  time  of  stoppage  must  be  such  as  to  en- 
able the  passenger  attempting  to  get  on  or 
off  to  reach  a  place  of  safety,  either  on  the 
street,  or  in  the  car,  before  it  Is  started."  6 
Cyc.  611,  615,  616,  and  cases  cited.  Selby  v. 
Detroit  By.  Co.,  141  Mich.  112,  104  N.  W. 
376 ;  Burke  v.  Bay  City  Trac.  Co.,  147  Mich. 
172,  110  N.  W.  524.  The  carrier  is  liable  for 
Injuries  to  a  passenger  caused  by  a  disre^ 
giird  of  this  duty.  We  find  no  authority  to 
the  contrary.  No  question  of  contributory 
negligence  of  plaintiff  is  raised  in  the  case 
at  bar.  On  the  facts  which  are  undisputed 
there  is  no  room  for  such  a  question.  The 
question  to  be  considered  then  is  whether  the 
conductor  was  guilty  of  negligence  under 
these  circumstances  as  a  matter  of  law.  We 
can  arrive  at  no  other  conclusion.    The  car 


was  stopped  for  the  sole  purpose  of  taking 
plaintiff  as  a  passenger.  It  was  started  as 
soon  as  he  got  on  the  lower  step  with  his 
large  grip  in  one  band  and  the  other  holding 
the  railing.  No  time  was  given  for  him  to 
even  get  on  the  platform.  The  car  was  start- 
ed, and  he  was  thrown  off.  There  Is  no  evi- 
dence In  the  case  tending  to  show  that  any- 
thing else  caused  his  falling  from  the  car. 
The  testimony  of  the  plaintiff  and  the  con- 
ductor does  not  warrant  any  other  concln- 
sion.  The  disputed  fact  as  to  whether  one 
or  both  feet  were  on  the  lower  step  Is  of  no 
significance.  The  conductor  had  no  right  to 
start  the  car  as  he  did.  Plaintiff  should  have 
been  given  time  to  get  to  a  safe  place.  Mr. 
Booth,  in  his  work  on  Bailway  Law,  says: 
"It  Is  clearly  negligent  as  a  matter  of  law 
to  start  the  car  with  a  sudden  Jerk  while  the 
passenger  is  on  the  step."  Booth,  Street  Bail- 
way  Law,  §  348,  and  cases  cited.  The  court 
was  In  error  in  refusing  this  request.  As  a 
new  trial  must  be  had,  it  will  be  necessar.v 
to  consider  only  those  questions  which  are 
likely  to  arise  at  that  time. 

It  was  claimed  on  the  part  of  defendant 
that  plaintiff's  claim  was  not  a  bona  fide  one, 
and  also  that  he  was  seeking  to  recover  for 
permanent  injuries.  The  files  and  records 
in  a  former  case  were  offered  in  evidence  to 
show  that  a  recovery  had  been  had  by  the 
plaintiff  against  the  defendant  for  street 
railway  injury  caused  by  defendant's  negli- 
gence, and  that  damages  were  claimed  among 
other  things,  for  permanent  Injuries,  and  that 
the  allegations  in  that  declaration  were  con- 
clusive upon  him.  The  objection  made  by 
plaintiff  was  that  all  the  ali^ations  made 
in  the  declaration  were  not  conclusive  against 
him  in  the  case  at  bar,  and  be  offered  to  show 
that  tbey  were  drawn  by  his  attorney  and  he 
knew  nothing  of  the  language  used.  The 
court  had  admitted  the  files  and  records  in 
the  former  case,  and  held  that  the  evidence 
offered  by  plaintiff  was  inadmissible,  and 
that  he  was  concluded  from  disputing  or 
questioning  any  of  the  allegations  contained 
in  the  declaration.  An  examination  of  the 
charge  of  the  court  to  the  Jury  in  that  case 
disclosed  that  the  question  of  damages  for 
permanent  injuries  was  taken  from  the  Jury 
on  the  ground  that  there  was  no  proof  to 
sustain  the  claim.  This  fact  was  announced 
to  the  Jury  in  the  case  at  bar. 

Discussion  of  the  ruling  of  the  court  in 
admitting  the  files  and  records  of  the  former 
case  is  unnecessary,  as  it  appeared  that  the 
question  of  permanent  injuries  had  been  tak- 
en from  the  Jury,  and  it  appeared  clearly  . 
that  plaintiff  had  not  recovered  in  the  for- 
mer case  for  permanent  injuries  be  was 
claiming  in  the  case  at  bar.  Consequently,  if 
any  error  was  committed  by  the  court  in 
admitting  these  files  and  records  and  deny- 
ing plaintiff  the  right  to  Introduce  the  testi- 
mony offered,  it  was  not  prejudicial.  No 
other  questions  require  consideration.  The 
greater  portion  of  them  cannot  recur,  and  the 


Digitized  by  LjOOQ  IC 


lUdL) 


DBLORIA  T.  ATEINB. 


659 


exercise  of  good  Judgment  on  the  part  of 
defendant's  attorney  In  addressing  the  Jury 
win  aTold  the  others. 

The  Judgment  Is  reversed  and  a  new  trial 
ordered. 


DELORIA  et  aL  t.  ATKINS. 
(Supreme  Court  of  Michigan.     Sept.  21,  1909.) 

1.  CORPOBATIONS     (S     338*)— COKPOBATX     LIA- 
BILITIES—LlABILlTTT  OF  DiRECTOBS. 

Comp.  Laws  1897,  $  6840,  requires  corpo- 
rations organized  thereunder  to  malce  a  report 
in  February,  signed  by  a  majority  of  the  direc- 
tors. Section  teS42  makes  the  directors  jointly 
and  severally  liable  for  all  corporate  debts  con- 
tracted dunng  default,  if  the  directors  inten- 
tionally neglected  to  comply  with  the  provisions 
thereof.  Pub.  Acts  1903,  p.  368  (effective  June 
18,  1903),  Act  No.  232,  being  a  revision  and 
consolidation  of  the  laws  for  the  incorporation 
of  manufacturing  or  mercantile  companies,  re- 
pealed all  inconsistent  laws,  and  by  section  12 
required  annual  reports  from  every  corporation 
subject  to  the  act  and  made  the  directors  liable 
for  all  corporate  debts  incurred  since  the  last 
annual  report  in  case  of  willfnl  neglect  to  re- 
port. Section  12  was  amended  by  Pub.  Acts 
1905,  p.  283,  No.  194,  {  1,  by  requiring  the  an- 
nual report  in  January  and  suspending  the  cor- 
porate powers  of  any  corporation  neglecting  to 
file  a  report  If  the  default  continues  10  days 
after  February  Ist,  and  making  any  director  of 
a  coiporation  so  defaulting  who  has  neglected 
or  refused  to  join  in  such  report  liable  for  all 
corporate  debts  contracted  since  the  filing  of 
the  last  report  of  such  corporation  as  well  as 
liable  to  the  corporation.  Section  37  made  the 
act  apply  to  all  corporations  provided  for  in 
Comp.  Laws  1897,  c.  181,  and  repealed  all  other 
acts  inconsistent  herewith,  but  provided  that 
such  repeals  should  not  dissolve  any  corporation 
existing  under  the  former  acts,  and  continued 
all  rights  and  liabilities  acquired  or  incurred  by 
them  under  snch  repealed  provisions,  or  under 
laws  in  force  not  inconsistent  with  the  act,  and 
made  all  such  corporations  subject  to  the  provi- 
sions of  the  act  as  fnlly  ss  though  they  bad  been 
perpetually  thereunder.  Held,  construing  sec- 
tions 12  and  37  strictly  as  a  penal  statute,  that 
the  acts  of  1003  and  1905  applied  to  corpora- 
tions organized  under  Comp.  Laws  1897,  c. 
l81i  as  weil  as  those  organized  under  such  acts. 
80  that  the  directors  of  a  navigation  corporation 
organized  under  chapter  181  who  neglected  to 
sign  annual  reports  would  be  liable  for  corporate 
debts. 

[Ed.  Note.— For  other  eases,  see  Corporations, 
Dec  Dig.  I  338.»] 

2.  Constitution Ai  Law  (|  126*)— Charter— 

A  \j  V  w  T)  w  F" WT 

Under  Const.  1850,  art.  15,  8  1,  permitting 
corporations  to  be  formed  under  general  laws,  and 
providing  that  all  laws  passed  pursuant  thereto 
may  be  amended,  altered,  or  repealed,  the  Legis-' 
lature  can  impose  upon  corporations  different 
obligations  than  those  imposed  upon  them  by 
the  statute  under  which  they  were  organized. 

[E3d.  Note.— For  other  cases,  see  Constitutional 
I>ow,  Cent.  Dig.  i8  325,  366-369;  Pee.  Dig.  S 
126  ;•   Corporations,  Cent.  Dig.  {  119.J 

3.  Statutes  (J  241*)— Penal  Statutes— Con- 
struction. 

Penal  statntes  are  strictly  construed,  but 
this  rule  only  means  that  it  must  satisfactorily 
appear  that  the  statute  is  applicable  to  the  per- 
son sought  to  be  bound  thereby,  which  must  be 
determined  from  the  provisions  of  the  statute 


taken  in  their  natural  and  ordinary  sense  wlth- 
ont  undue  refinement. 

[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent.  Dig.  }{  822,  823;   Dec.  Dig.  |  241.*] 

4.  Appeal  and  Ebrob  (t  1177*)— Disposition 
—  New  Trial  —  Necesbitt  —  Heabino  on 
Stipctlated  Facts. 

A   new   trial   is   not  necessary   where   the 

appeal  was  heard  on   stipulated  facts. 
[Ed.  Note.— For  other  cases,  see  Appeal  and 

Error,  Dec  Dig.  t  1177.*] 

Error  to  Circuit  CJourt,  Delta  County; 
John  W.  Stone,  Judge. 

Action  by  Fred  Delorla  and  another,  co- 
partners, against  Frank  H.  Atkins.  Judg- 
ment for  defendant  upon  directed  rerdlct, 
and  plaintiffs  bring  error.  Reversed,  and 
Judgment  entered  for  plalntiffa 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MOORE,  McALVAT,  and  BROOKE,  JJ. 

Henry  R.  Dotsch  and  Cummlskey  &  Spen- 
cer, for  appellants.  F.  D.  Mead,  for  appel- 
lee. 

McALVAT,  X  Plaintiff  assigns  error  upon 
a  directed  verdict  In  favor  of  the  defendant, 
and  in  the  rulings  and  holdings  of  the  court 
in  so  doing,  in  a  case  brought  by  him  In 
assumpsit  against  the  defendant.  The  facts 
relied  upon  by  plaintiff  are  stipulated  in 
writing  as  follows:  "That  the  Escanaba 
Transportation  Company,  of  which  Frank  H. 
Atkins  was  a  director  in  the  year  1903  and 
1904,  was  incorporated  under  and  by  virtue 
of  the  provisions  of  chapter  181  of  the  Com- 
piled Laws  of  1897,  governing  corporations 
for  commerce  or  navigation,  on  or  about  the 
12th  day  of  March,  1903;  that  on  the  19th 
day  of  May,  1904,  it  filed  a  report  in  the 
offleo  of  the  Secretary  of  State  for  the  year 
1903,  and  that  no  annual  report  has  been 
filed  by  said  company  since  the  19th  day  of 
May,  1904;  that  the  Escanaba  Transporta- 
tion Company  did  not  file  with  the  Secretary 
of  State  In  the  month  of  January  or  Febru- 
ary, 1905,  a  report  showing  the  condition  of 
said  corporation  on  the  31st  day  of  Decem- 
ber, 1904,  as  was  required  by  section  12,  Act 
232,  of  the  Public  Acts  for  the  state  of  Michi- 
gan for  the  year  1903,  and  as  amended  by 
act  194  of  the  Public  Acts  for  the  state  of 
Michigan  for  the  year  1905,  and  that  the 
said  Frank  H.  Atkins,  as  director  of  said 
company,  did  not  Join  in  the  making  of  said 
report."  It  was  also  stipulated  that  for  hay 
sold  and  delivered  by  plaintiffs  and  others 
who  have  duly  assigned  their  accounts  to 
them  to  the  Escanaba  Transportation  Com- 
pany during  the  last  quarter  of  the  year  1904 
there  was  due  and  unpaid  to  the  plaintiff  a 
balance  of  ^735.  Upon  these  stipulations  and 
admissions  plaintiff  claimed  a  case  was  made 
entitling  him  to  a  recovery.  Defendant  of- 
fered no  evidence.  Both  parties  asked  for 
a  directed  verdict. 

The  action  was  brought  under  the  statute 
which   imposes   liability  upon  directors  for 


*Por  other  case*  tee  tame  topic  and  section  NUMBER  In  Dec.  A  Am.  Digs.  1907  to  date,  A  Reporter  Indexci 


Digitized  by 


Google 


560 


122  NORTHWESTERN  REPORTER. 


(Micb. 


debts  of  certain  corporations  when  sncb  di- 
rectors have  neglected  or  refused  to  sign  the 
required  annual  reports.  The  court  directed 
a  verdict  for  defendant  Plaintiff  claims 
that  the  court  was  In  error  in  such  holding, 
and  has  brought  the  case  to  this  court  for 
review  upon  writ  of  error.  The  errors  as- 
signed all  relate  to  the  construction  of  the 
statute  and  Its  amendments  given  by  the 
court  In  rendering  judgment  In  favor  of  de- 
fendant The  facts  In  the  case  are  undis- 
puted, and  the  question  involved  is  the  con- 
struction of  certain  sections  of  chapter  181, 
Comp.  Laws  1897,  as  amended  and  altected 
by  certain  subsequent  enactments  of  the 
Legislature.  The  corporation  In  question 
was  organized  under  said  chapter  181.  Sec- 
tion 18  of  this  chapter  required  such  corpo- 
ration annually  In  the  month  of  February 
to  make  a  report  containing  certain  required 
Information,  to  be  signed  by  a  majority  of 
the  directors  and  duly  verified,  and  filed 
with  the  county  clerk  and  Secretary  of  State 
Section  20  provided:  "If  the  directors  of 
any  such  corporation  shall  intentionally  neg- 
lect or  refuse  to  comply  with  any  of  the  pro- 
visions of,  and  to  perform  the  duties  re- 
quired of  them  by  this  act  they  shall  be 
Jointly  and  severally  liable  In  an  action 
founded  on  this  statute  for  all  the  debts  of 
such  corporation  contracted  during  the  peri- 
od of  such  neglect  or  refusal."  In  1903  an 
'  act  was  passed  entitled,  "An  act  to  revise 
and  consolidate  the  laws  providing  for  the 
incorporation  of  manufacturing  and  mercan- 
tile companies  or  any  union  of  the  two,  and 
for  the  Incorporation  of  companies  for  car- 
rying on  any  other  lawful  business,  except 
such  as  are  precluded  from  organization  im- 
der  this  act  by  express  provisions,  and  to 
prescribe  the  powers  and  fix  the  duties  and 
liabilities  of  such  corporations."  Act  No. 
232,  p.  368,  Pub.  Acts  1903,  given  Immediate 
effect  June  18,  1903.  Section  12  of  this  act 
prpvlded  for  an  annual  report  to  be  made  by 
the  corporation  In  duplicate  In  the  months 
of  January  or  February,  to  be  made  on 
blanks  furnished  by  the  Secretary  of  State 
and  filed  with  him  within  those  months, 
and,  "if  any  of  the  directors  of  any  such 
corporation  shall  wilfully  neglect  or  refuse 
to  make  and  deposit  the  report  requlrea 
by  this  section  within  the  time  herein  speci- 
fied, they  shall  each  be  liable  for  all  the 
debts  of  such  corporation  contracted  since 
the  filing  of  the  last  annual  or  special  report 
and  subject  to  a  penalty  of  twenty-five  dol- 
lars, and  in  addition  thereto  the  sum  of  five 
dollars  for  each  and  every  secular  day  after 
the  first  day  of  March  In  each  year  during  the 
pendency  of  such  neglect  or  refusal.  •  ♦  ♦  " 
Section  12  was  amended  by  Act  No.  194,  p. 
283,  Pub.  Acts  1905,  by  requiring  the  annual 
report  In  January  and  suspending  the  cor- 
porate powers  of  any  corporation  neglecting 
or  refusing  to  file  such  report  If  the  default 
shall  continue  ten  days  after  February  Ist 
and   prohibiting   the  maintenance   by   such 


corporation  of  any  action  upon  any  contract 
entered  Into  during  such  default  "and  any 
director  of  any  corporation  so  in  default 
who  has  neglected  or  refused  to  Join  in  the 
making  of  such  report  shall  be  liable  for 
all  debts  of  such  corporation  contracted 
since  the  filing  of  the  last  report  of  such 
corporation,  and  shall  also  be  liable  to  such 
corporation  for  any  damages  sustained  by  it 
by  reason  of  such  refusal  or  neglect"  This 
is  the  section  now  in  force.  Section  37  oC 
this  act  provided  that  It  should  include  and 
apply  to  all  corporations  provided  for  in 
chapter  181  and  other  chapters  named, 
"  *  *  *  and  in  addition  shall  repeal  all  oth- 
er acts  and  parts  of  acts  inconsistent  with 
the  provisions  of  this  act"  It  further  pro- 
vided that  the  repeal  of  the  foregoing  acts 
should  not  dissolve  any  corporation  formed 
or  existing  under  them,  and  that  all  such 
corporations  of  this  class  should  "be  deemed 
and  taken  to  be  organizations  under  this 
act  and  all  rights,  obligations,  and  liabili- 
ties contracted,  acquired  or  Incurred  by  any 
of  said  last  mentioned  corporations  there- 
under or  under  the  provisions  of  any  law 
now  In  force  not  Inconsistent  with  the  pro- 
visions of  this  act  shall  continue  of  the  same 
force  and  effect  as  though  such  acts  or  laws 
had  not  been  repealed  and  all  such  corpo- 
rations from  and  after  the  taking  effect  of 
this  act  shall  be  subject  to  all  the  provisions 
hereof  as  fully  as  though  such  organizations 
had  been  perpetual  thereunder,  and  such  or- 
ganizations may  continue  to  carry  on  the 
business  specified  in  their  articles  of  asso- 
ciation under  the  provisions  of  this  act  as 
lawfully  as  U  said  acts  mentioned  were  not 
repealed."  Sections  12  and  87  of  this  act 
are  the  sections  under  which  plaintiff  claims 
a  liability  was  imposed  upon  defendant  Act 
No.  112,  p.  161,  Pub.  Acts  1905,  did  not 
amend  section  87  in  any  respect  material  to 
this  case. 

The  proposition  contended  for  by  defend- 
ant Is,  not  that  the  legislation  under  the  Con- 
stitution might  not  have  amended  the  law 
in  respect  to  the  liability  of  stockholders  in 
this  corporation,  but  that  this  Is  a  penal 
provision  of  the  statute,  and  It  must  be 
strictly  construed,  and  liability  under  •  It 
cannot  be  enlarged  by  implication;  that  the 
revision  of  the  laws  providing  for  the  in- 
corporation of  such  institution  has  repealed 
all  of  chapter  181  which  imposed  a  liability 
upon  directors  and  officers  for  neglect  of 
duty  in  the  matter  of  making  reports;  and 
that  liability  of  directors  and  officers  im- 
posed under  the  acts  of  1903  and  1906  ap- 
plies only  to  corporations  organized  under 
those  acts.  The  learned  trial  Judge  took  this 
view  of  the  statute,  citing  in  support  of  such 
construction  National  Park  Bank  of  New 
York  V.  Remsen,  158  U.  S.  337,  15  Sup.  Ct 
801,  39  L.  Ed.  1008.  That  case  was  an  ac- 
tion on  two  promissory  notes  made  by  a  New 
York  firm  to  the  order  of  themselves  and  in- 
dorsed  In   blank.     Afterwards   these  notes 


Digitized  by  VjOOQ  l€ 


Mich.) 


DELORIA  T.  ATKINS. 


661 


were  Indorsed  by  the  German-American 
Warehousing  &  Security  Company,  a  New 
York  coriK>ratlon.  The  notes  were  discounted 
by  plaintiff.  The  warehouse  company  was 
Incorporated  by  a  special  act,  section  9  of 
wblch  provided  that :  "The  corporation  here- 
by created  shall  possess  all  the  general  pow- 
ers and  privileges,  and  be  subject  to  all  the 
UnbiUtles  conferred  and  Imposed  npon  cor- 
porations organized  under  and  In  pursuance 
of  an  act  entitled,  'An  act  to  authorize  the 
formation  of  corporations  for  manufacturing, 
mining,  mechanical  or  chemical  purposes, 
passed  February  17,  1848  [Laws  1848,  p.  54, 
c.  40],  and  the  several  acts  extending  and 
amending  the  same.'  "  Section  12  of  the  act 
of  1848  -required  certain  annual  reports  to 
be  published  within  a  certain  time,  for  fail- 
ure of  which  tbe  trustees  "shall  be  jointly 
and  severally  liable  for  all  the  debts  of  the 
company  then  existing  and  for  all  that  shall 
be  contracted  before  such  report  shall  be 
made."  Plaintiff  brought  suit  against  tbe 
warehouse  company  as  indorser  and  recover- 
ed judgment,  which  was  reversed  and  a 
new  trial  ordered  by  the  Court  of  Appeals  of 
tbe  state,  on  the  ground  that  the  warehouse 
company  was  an  accommodation  Indorser 
and  plaintiff  was  chargeable  with  notice  of 
the  character  of  the  indorsement  116  N. 
Y.  281,  22  N.  B.  567,  B  r*  R.  A.  673.  Plain- 
tiff then  sued  Remsen,  a  trustee  of  the  ware- 
bouse  company,  in  the  federal  court,  upon 
his  statutory  liability  under  section  12  of 
the  act  of  1848.  The  court  decided  against 
the  plaintiff,  and  tbe  case  was  appealed  to 
the  Supreme  Court  of  the  United  States.  In 
aflirming  the  case  Mr.  Justice  Brewer,  speak- 
ing for  the  court,  relative  to  the  statute  re- 
lied upon  by  appellant,  said:  "Section  12  of 
the  act  of  1848  is  not  in  terms  re-enacted 
In  the  charter  of  the  warehouse  company. 
It  Is,  as  we  have  seen,  a  statutory  provision 
of  a  penal  character,  and,  before  any  party 
can  be  held  bound  by  Us  provisions,  it  must 
satisfactorily  appear  that  the  legislation  of 
the  state  has  rendered  him  subject  thereto. 
The  contention  is  that  section  9  of  the  char- 
ter of  the  warehouse  company  Id  effect  in- 
corporates said  section  12  Into  such  charter, 
but  the  provision  of  section  9.  is  that  the  cor- 
poration shall  possess  all  the  general  pow- 
ers and  privileges,  and  be  subject  to  all  the 
liabilities  conferred  and  imposed  upon  cor- 
porations organized  under  the  act  of  1848. 
It  is  tbe  corporation  which  Is  given  tllie  pow- 
ers and  privileges  and  made  subject  to  the 
liabilities.  Does  this  carry  with  It  an  Im- 
position of  liability  upon  the  trustee  or  other 
officer  of  the  corporation?  The  officer  is 
not  the  corporation.  His  liability  Is  pergonal, 
and  not  that  of  the  corporation,  nor  can  it 
be  counted  among  the  powers  and  privileges 
of  the  corporation.  How,  then,  can  It  be 
contended  that  a  provision  In  a  charter  that 
the  corporation  thus  chartered  shall  assume 
all  the  liabilities  Imposed  by  a  general  stat- 
122N.W.-36 


ute  upon  corporations  carries  with  It  a  fur- 
ther provision  of  such  general  statute  that 
the  officers  of  corporations  also  assume,  un- 
der certain  conditions,  the  liabilities  of  the 
corporation?  Does  one  by  becoming  an  of- 
ficer of  a  corporation  assume  all  the  lia- 
bilities resting  upon  the  corporation?  Is  not 
bis  liability  of  a  distinct  and  Independent 
character  and  dependent  upon  other  prin- 
ciples? •  •  •  So  far,  then,  as  the  deci- 
sions of  the  Court  of  Appeals  go,  they  do  not 
affirm  that  so  much  of  the  act  of  1848  as 
Imposes  a  special  liability  on  trustees  and 
directors  was  Incorporated  Into  the  charter 
of  the  warehouse  company  by  force  of  sec- 
tion 9  or  otherwise;  and,  in  the  absence  of 
any  controlling  decision,  we  are  unwilling  to 
hold  that  a  provision  of  a  general  statute 
imposing  a  personal  liability  on  trustees  or 
other  officers  Is  incorporated  Into  a  special 
charter  by  a  clause  therein  declaring  that 
the  corporation  shall  possess  all  the  general 
powers  and  privileges,  and  be 'subject  to  all 
the  liabilities  conferred  and  Imposed  upon  cor- 
porations Organized  under  such  general  act. 
Something  more  specific  and  direct  is  neces- 
sary to  burden  an  officer  of  the  corporation 
with  a  penalty  for  omission  of  duty."  The 
charter  act  incorporating  the  warehouse  com- 
pany contained  no  requirement  for  making 
reports,  and  no  provision  imposing  liability 
of  any  kind  upon  its  trustees.  The  entire 
act  Is  furnished  to  the  court  In  the  supple- 
mental brief  of  plaintiff.  It  Is  complete  in 
Itself,  describing  the  corporate  powers  of 
the  company,  tbe  duties  of  officers,  liability 
of  stockholders,  etc.  The  section  (9)  which 
was  construed  contains  the  following  words: 
"The  corporation  hereby  created  shall  pos- 
sess all  the  general  powers  and  privileges, 
and  be  subject  to  all  the  liabilities  conferred 
and  imposed  npon  corporations  organized 
under  and  In  pursuance  of  an  act  entitled 
•  •  *."  The  construction  given  to  this 
statute  by  tbe  United  States  Supreme  Court 
is  one  based  upon  reason  and  authority.  A 
comparison  of  the  statute  construed  in  that 
case  with  the  one  now  under  discussion  will 
determine  whether  the  cases  are  distinguish- 
able. 

In  the  case  at  bar  the  act  of  1903  was  a 
revision  and  consolidation  of  the  laws  then 
in  force  providing  for  the  incorporation  of 
manufacturing  and  mercantile  companies  or 
any  union  of  the  two,  and  for  the  Incorpora- 
tion of  companies  for  carrying  on  any  other 
lawful  business,  as  appears  from  its  title. 
It  was  intended  by  Its  terms  to  affect  and 
apply  to  all  corporations  theretofore  organ- 
nlzed  under  the  nlnie  chapters  of  the  Com- 
piled Laws  enumerated  as  well  as  those 
thereafter  organized  under  it.  It  repealed 
all  Inconsistent  provisions  contained  in  such 
chapters,  and  all  other  acts  and  parts  of 
acts  Inconsistent  with  It  It  preserved  the 
lives  of  all  such  existing  corporations,  and 
provided   that  "all  such  corporations  from 


Digitized  by  VjOOQ  l€ 


562 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


and  after  the  taking  effect  of  this  act  shall 
be  subject  to  all  the  provisions  hereof  as 
fully  as  though  such  organization  had  been 
perpetual  thereunder,  and  such  organizations 
may  continue  to  carry  on  the  business  speci- 
fied In  their  articles  of  association  under 
the  provisions  of  this  act  as  lawfully  as  if 
said  acts  mentioned  in  this  section-  were 
not  repealed."  This  act  took  effect  about 
90  days  after  the  Escanaba  Transportation 
Company  was  organized.  An  appreciation  of 
the  magnitude  of  Interests  affected  by  this 
revision  and  consolidation  may  be  had  from 
an  examination  of  the  kinds  of  corporations 
Included  in  the  nine  chapters  repealed.  They 
are  all  the  stock  breeding  associations;  com- 
merce and  navigation  companies;  land  com- 
panies; warehouse  companies;  associations 
for  constructing  and  leasing  buildings;  man- 
ufacturing companies;  gas  light  companies; 
electric  light  companies;  and  printing,  news- 
paper, and  publishing  associations.  The  evi- 
dent intent  of  the  Legislature  in  making  this 
revision  was  to  simplify  these  laws,  and 
bring  all  these  numerous  corporations  under 
one  general  statute.  The  purpose  was  a 
commendable  one,  and  the  operation  of  the 
statute  would  be  for  the  benefit  and  con- 
venience of  all  connected  therewith  and  the 
easier  supervision  by  the  Secretary  of  State. 
The  provisions  of  the  law  were  intended  to 
apply  to  all  corporations  subject  to  it,  which 
would  Include  corporations  organized  nnder 
former  acts  as  well  as  those  organized  under 
it  Section  12  indicates  this  intent  in  terms, 
viz. :  "Every  corporation  subject  to  this  act 
*  •  *  shall  annually  In  the  month  of  Jan- 
uary make  duplicate  reports,"  etc.  The  legis- 
lative intent  in  «iacting  this  law  Is  clear, 
and  a  careful  examination  of  its  provisions 
discloses  that  such  Intent  cannot  be  realized 
as  to  corporations  organized  under  the  chap- 
ters repealed  unless  they  are  to  be  consider- 
ed subject  to  all  of  its  provisions.  The  con- 
tention of  defendant  is  that  its  requirements 
extended  only  to  the  body  corporate  and  not 
to  the  oflScers,  and  that  no  liability  was  im- 
posed upon  such  officers.  Nearly  all  the  stat- 
utes repealed  contained  provisions  that  the 
corporations  should  make  reports  annually, 
and  Imposed  penalties  upon  officers  for  not 
performing  their  duties  in  that  regard.  A. 
different  obligation  is  imposed  by  this  stat- 
ute, sometimes  less  and  sometimes  more 
severe  than  under  the  repealed  chapters. 
This  is  within  the  power  of  the  Legislature 
under  section  1  of  article  15  of  the  Constitu- 
tion of  1830,  which  reads :  "Corporations  may 
be  formed  under  general  laws,  but  shall  not 
be  created  by  special  act  except  for  munic- 
ipal purposes.  All  laws  passed  pursuant  to 
this  section  may  be  amended,  altered  or  re- 
pealed. *  •  • "  The  question,  therefore, 
is  not  one  of  power,  but  of  the  execution  of 
the  power  granted.  The  contention  of  de- 
fendant leaves  this  numerous  body  of  cor- 
porations In  this  state  without  any  require- 


ment to  make  annual  report  of  their  finan- 
cial condition.  That  any  such  Intent  conltf 
have  actuated  the  Legislature  is  beyond  be- 
lief. 

In  Wakefield  v.  Fargo,  80  N.  T.  218,  an  act 
entitled,  "An  act  to  extend  the  operation  an* 
effect  of  the  act  passed  February  IT,  1848, 
entitled,  'An  act  to  authorize  the  formation 
of  corporations  for  manufacturing,  mining, 
mechanical  or  chemical  purposes,' "  was  be- 
fore the  court  for  construction.  The  corpo- 
ration in  question  had  been  organized  under 
this  act,  which  provided  that  such  corpora- 
tions "shall  be  subject  to  all  the  provisions, 
duties  and  obligations"  of  the  original  act 
It  was  held  that  a  provision  of  the  original' 
act  making  stockholders  "liable  for  all  debt» 
that  may  be  due  and  owing  to  their  laborers, 
servants  and  apprentices  for  services  per- 
formed for  such  corporation,"  was  made  ap- 
plicable to  stockholders  of  corporations  or- 
ganized under  the  later  act  'Aiis  case  may 
be  distinguished  from  the  case  of  Park  Bank 
y.  Remsen,  supra,  and  this  distinction  was 
apparent  and  discussed  in  that  case.  The 
act  was  "to  extend  the  operation  and  effect"' 
of  the  act  of  1848.  Mr.  Justice  Brewer,  re- 
ferring to  this,  said:  "And  so  It  may  well 
be  that  the  Court  of  Appeals  considered  the- 
act  of  1848  as  passing  bodily  into  the  act  of 
1863  (Laws  1863,  p.  87,  c.  63),  and  that  all 
the  'provisions'  (in  the  language  of  section 
2)  of  the  former  became  part  of  the  latter 
act"  That  decision,  made  clearer  by  the  fed- 
eral court  in  Park  Bank  v.  Remsen,  may  be- 
cited  in  support  of  plaintiffs  contention  in 
the  case  at  bar.  We  find  the  statute  in  this 
case  to  be  entirely  different  from  the  one- 
construed  in  that  case,  and  that  it  contains 
in  terms  provisions  which  the  federal  court 
declared  were  essential  to  fix  liability  upon  a 
party.  The  case  at  bar  is  distinguishable^ 
from  Park  Bank  v.  Remsen.  That  case  was 
decided  upon  the  proposition  that,  before  any 
party  can  be  held  bound  by  a  statutory  pro- 
vision of  a  penal  character,  it  must  satis- 
factorily appear  that  the  legislation  has  ren- 
dered blm  subject  thereto.  Applying  thl» 
rule  to  the  case  at  bar,  we  can  say  that  It 
satisfactorily  appears  that  the  trustees  of 
corporations  of  the  character  of  the  one  un- 
der discussion  were  rendered  subject  to  this 
legislation.  The  weight  of  authority  favors 
what  is  called  a  strict  construction  of  stat- 
utes of  a  penal  character.  This  means  no- 
more  than  as  above  stated  in  the  paragraph 
condensed  from  Park  Bank  v.  Remsen.  The 
real  sense  of  the  Legislature  is  to  be  found 
in  the  terms  and  arrangement  of  the  statute- 
wlthout  straining  or  refinement  and  the  ex- 
pressions used  are  to  be  taken  in  their  nat- 
ural and  ordinary  sense.  Bohn  t.  Brown,  83 
Mich.  260-261. 

Applying  these  rules  in  construing  the  stat- 
ute of  1903,  if  we  consider  the  purpose  of 
the  act  as  stated  in  the  title,  the  require- 
ments of  section  12  relative  to  annual  reports- 
from  "every  corporation  subject  to  this  act," 


Digitized  by  VjOOQ  l€ 


Micb^ 


ZIMMER  T.  SAIEB. 


663 


imiXMlng  a  liability  upon  officers  neglecting 
or  refusing  to  comply  therewith,  the  number 
and  classes  of  corporationa  organized  under 
former  acta  repealed  by  section  37  and 
brought  subject  to  the  act  and  all  of  its  pro- 
visions by  express  terms  and  continued  as 
though  originally  organized  under  it — we 
must  conclude  that  the  power  admittedly 
granted  by  the  Constitution  to  the  Legislature 
has  been  exercised  by  this  legislation,  and 
the  defendant  in  this  case  has  been  rendered 
subject  thereto.  The  court  was  In  error  In 
directing  a  Terdlct  for  defendant,  and  refus- 
ing to 'direct  one  for  plaintiff  as  requested. 
The  facts  being  stipulated,  no  new  trial  Is 
necessary. 

The  Judgment  of  the  circuit  court  Is  revers- 
ed, and  a  Judgment  will  be  entered  In  this 
court  In  favor  of  plaintiff  for  the  sum  of  $735 
and  Interest  thereon,  with  costB  of  both 
courts  to  be  taxed. 


ZIMMER  V.  SAIER  et  al. 
(Snpicme  Court  of  Michigan.     Sept  21,  1909.) 

1.  Appeai.   awd  Ebbob   (J  816*)— Heabinq — 
CoNsouoATioiT  or  Appeals. 

Where  each  party  sued  out  a  writ  of  error, 
the  appeals  should  have  been  consolidated  anq 
heard  together. 

[ESd.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  §  3197 ;   Dec  Dig.  i  816.*! 

2.  Appeal  awd  Ebbob  (§  601*)— Exceptions— 
NicEssrrr. 

Error  In  snbmitting  the  case  to  the  Jury 
cannot  be  considered  on  appeal  where  the  record 
shows  no  exception  covering  the  assignment  of 
error, 

rEd.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  M  2300-2306;  Dec.  Dig.  | 
501.*] 

3.  Appeai.  and  Ebbob  ({  273*)— Ezceptionb— 
Sutficienct— Genebal  Exceptions. 

Exceptions  to  the  trial  court's  finding  which 
do  not  show  the  objection  are  too  general  to  be 
considered  on  appeal. 

[EVl.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  U  1620-1630:  Dec  Dig.  | 
273.*] 

4.  Appeai.  and  Ebbob  ((  1108*). 

Where  both  the  admmistrator  and  the  con- 
testant sued  out  a  writ  of  error  in  a  proceeding 
for  the  allowance  of  the  administrator's  final 
account  and  the  cases  were  not  heard  together 
on  appeal,  a  decision  on  contestant's  appeal  that 
certain  charges  were  properly  rejected  is  les 
judicata  on  the  appeal  by  tne  administrator. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  4383 ;  Dec.  Dig.  1 1103.*] 

5.  EXECUTOBS  AND   Aduinistbatobs   (ft   104, 
118*)— Accounting— Chabqes. 

An  administrator  is  properly  charged  with 
interest  on  funds  of  the  estate  which  he  failed 
to  deposit  and  commingled  with  his  own  funds, 
thereby  losing  the  estate  3  per  cent  semiannual 
interest  and  with  Interest  on  a  claim  which  he 
neglected  to  pay  as  ordered  by  the  court  •• 
well  as  with  rent  lost  by  his  neglect. 

[Bd.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  {{  423-432,  472- 
482 ;   Dec  Dig.  H  104,  11&*] 


Error  to  Circuit  Court,  Ingham  County; 
Charles  H.  Wisner,  Judge. 

Petition  by  John  J.  Zlmmer,  administrator 
of  Einora  Saier,  deceased,  for  allowance  of 
his  final  account,  contested  by  Charles  Saier 
and  others.  From  the  Judgment  in  the  cir- 
cuit court  on  appeal  from  the  probate  court, 
petitioner  brings  error.  Affirmed  as  modi- 
fied. 

Bee,  also,  155  Mich.  388,  119  N.  W.  433. 

Argued  before  BLAIR,  C.  J.,  and  HOOK- 
ER, MOORE,  McALVAX,  and  BROOKE,  JJ. 

John  J.  Zinuner,  in  pra  per.  Black  &  Rea- 
Boner  and  F.  L.  Dodge,  for  appellant  John 
J.  Zlmmer.  O.  J.  Hood,  for  appellees  Charles 
Saier  and  others. 

McAl^YAT,  J.  The  appeal  In  this  case, 
talcen  by  both  parties  to  the  controversy, 
from  the  order  of  the  probate  court  of  Ing- 
ham county,  was  heard  in  the  circuit  court 
for  said  county  before  Hon.  Ghas.  H.  Wis- 
ner, presiding,  and  a  Jury  which  had  been 
asked  for  by  one  of  the  parties.  After  hear- 
ing all  the  evidence,  the  court  submitted  to 
the  Jury  in  writing  eight  Issues  for  them  to 
find  and  to  answer  each  In  writing.  The 
Jury  agreed  upon  a  verdict,  answering  all 
the  special  questions.  The  several  appeals 
were  consolidated  by  consent  of  the  parties 
and  the  order  of  the  court.  Thereupon  the 
court  made  a  finding  of  the  facts,  restated 
the  account,  and  entered  Judgment  thereon. 
Objections  and  exceptions  were  taken  to 
these  findings  and  determination  of  the 
court,  errors  were  duly  assigned  by  both 
parties,  and  each  has  taken  a  writ  of  error. 
The  cases  should  have  been  consolidated 
and  heard  together  in  this  court  The  ap- 
peal of  those  Interested  In  the  estate  has 
been  heard  and  decided.  It  Is  reported  \n 
155  Mich.  388.  119  N.  W.  433. 

The  facts  there  stated  are  sufficient  for 
the  purposes  of  this  case,  except  such  spe- 
cific matters  as  may  require  statement  as 
they  are  considered.  Reference  is  therefore 
had  to  the  opinion  of  this  court  in  Zlmmer 
V.  Saier,  153  Mich.  388,  119  N.  W.  433.  The 
decision  In  that  case  Is  res  adjudlcata  upon 
certain  matters  In  this  case.  The  cases  are 
in  effect  jHirts  of  the  same  appeal,  and,  as 
Intimated,  should  have  been  heard  and  de- 
cided as  one  case.  Such  would  have  been 
the  action  of  the  court  had  the  situation 
been  understood.  The  court  will  consider 
this  case  and  determine  the  questions  not 
discussed  in  the  former  opinion.  Such 
course  can  work  no  hardship  upon  the  con- 
testants whose  errors  assigned  were  fully 
considered.  In  this  case  the  administrator 
with  the  will  annexed  has  assigned  error  up- 
on the  submission  of  the  case  to  the  Jury. 
We  do  not  find  In  the  record  any  exception 
covering  this  assignment  of  error.  It  there- 
fore cannot  be  considered. 

The  remaining  assignments  of  error  relate 


•Tor  othar  «aiw  ■••  sum  toplo  and  mcUob  NUMBEB  is  Dm.  ft  Am.  Dlga.  1M7  to  daU,  ft  Raportar  Indaxw 


Digitized  by  VjOOQ  l€ 


564 


122  NORTHWESTERN  REPORTER. 


(Mloll. 


to  the  account  In  question,  and  refer  to 
claimed  errors'  of  the  court  In  admitting, 
and  refusing  to  allow,  evidence  relative  to 
certain  items,  to  the  action  of  the  court  in 
refusing  the  administrator  certain  credits, 
and  in  surcharging  his  account  with  certain 
amounts  In  the  restatement  of  the  account 
made  by  the  court,  and  to  the  judgment 
entered  by  the  court  against  the  appellant, 
and  the  sureties  on  his  appeal  lx)nd.  This 
enal  account  of  the  appellant  is  of  great 
length,  and  much  time  has  been  spent  in 
giving  it  and  the  evidence  in  the  record 
relative  to  the  disputed  items,  and  those 
amounts  which  the  appellees  claim  should 
be  charged  to  the  administrator,  such  ex- 
amination as  has  been  necessary  to  a  proper 
understanding  of  the  facts  in  relation  to  the 
questions  raised. 

Some  of  the  exceptions  to  the  findings  of 
the  court  are  too  general.  What  tlie  ob- 
jection may  be  is  not  indicated.  To  go  into 
detail  as  to  the  others  would  be  of  no  l>eneflt 
to  the  profession.  Only  such  as  require  spe- 
cial consideration  will  be  referred  to.  The 
charges  made  by  appellant  for  professional 
services  rendered  by  himself  and  others  dis- 
allowed by  the  trial  court  are  referred  to 
in  the  opinion  in  the  other  case  as  unjust 
and  illegal  charges.  There  is  no  question 
but  that  appellant  had  no  authority  to  make 
them,  and  they  were  properly  rejected. 

The  decision  of  the  court  on  the  other  ap- 
peal disallowing  $400  paid  to  counsel  dis- 
poses of  that  item,  and  is  res  adjudicata  in 
this  case. 

The  trial  court  surcharged  his  account 
with  certain  '.terns  for  uncollected  rent.  In- 
terest on  a  certain  claim,  interest  and 
charges  on  taxes  neglected,  and  interest  on 
semiannual  balances.  We  think  such  find- 
ing was  warranted  by  the  evidence.  Appel- 
lant had  failed  to  make  deposit  as  he  should 
have  done,  and  had  commingled  the  estate 
with  his  own  funds,  and  thereby  lost  to  the 
estate  3  per  cent  on  semiannual  balances. 
The  rent  charged  was  lost  by  ills  neglect, 
and  the  Interest  was  on  a  claim  he  was  or- 
dered by  the  court  to  pay,  which  order  he 
neglected  to  obey.  The  foregoing  shows 
the  character  of  the  items  disallowed  or 
surcharged  in  this  case  by  the  trial  court 
Many  other  items  were  disallowed,  and  in 
tracing  them  in  the  record  we  find  that  in 
each  instance  the  court  was  correct  in  so 
doing.  By  the  restatement  of  the  account 
according  to  his  findings  the  court  charged 
appellant  with  the  sum  of  $6,203.70,  credited 
him  'With  $4,190,  leaving  a  balance  charged 
to  him  of  $2,012.71.  Adding  to  this  balance 
the  amount  of  $400  held  in  the  other  case  to 
have  been  improperly  allowed,  the  balance 
due  the  estate  from  appellant  is  found  to  be 
$2,412.70. 

Tlie  judgment  of  the  circuit  court,  except 


as  modified,  is  in  all  respects  afSrmed,  with 
costs  in  favor  of  the  appellees,  and  against 
the  appellant  personally. 


SMITH  T.  CAMERON. 
(Supreme  Conrt  of  Michigan.     Sept.  21,  1900.) 

1.  Guardian  ano  Ward  ({  6*)— Duties  ahd 
Liabilities  of  De  Facto  Guardian. 

A  de  facto  guardian  will  be  held  subject 
to  all  the  duties  and  liabilities  of  an  ordinary 
guardian. 

[Ed.  Note. — For  other  cases,  see  Guardian  and 
Ward,  Cent  Dig.  i  7;    Dec.  Dig.  §  6.*] 

2.  Guardian   and   Wabd   (t  6*)— De   Facto 
GuABDiAK— Right  to  Credit  fob  Expendi- 

TUBES. 

The  rights  of  a  de  facto  guardian  will  t>e 
recognized  so  far  as  to  entitle  him  to  an  equi- 
table credit  for  expenditures  made  for  the  ward, 
which  would  have  been  allowed  had  the  guard- 
ian been  a  legal  one. 

[Ed.  Note.— For  other  cases,  see  Guardian  aitd 
Ward,  Cent  Dig.  i  7;    Dec.  Dig.  {  6.*] 

3.  Life  Estates  ({  19*)— Dutt  to  Insure. 

Where  no  requirement  is  contained  in  the 
instrument  creating  a  life  estate,  the  life  ten- 
ant is  not  bound  to  insure  the  interest  of  re- 
maindermen in  the  premises,  but  either  party 
may  insure  for  his  own  benefit 

[Ed.  Note. — For  other  cases,  see  Liife  Estates, 
Cent  Dig.  {  40;   Dec.  Dig.  g  19.*] 

4.  Insane  Pebsorb  (t  65*)— De  Facto  Guabd- 
lANs— Claims. 

Where  a  remainderman  as  de  facto  guard- 
ian for  an  incompetent  life  tenant  insured  a 
bam  on  the  premises  for  more  than  the  interest 
of  the  life  tenant  and,  upon  loss,  collected  the 
full  amount  and  expended  it  in  rebuilding  the 
bam  in  the  interest  of  both  the  ward  and  re- 
maindermen, she  made  an  equitable  apportion- 
ment of  the  fundf  and  should  be  credited  upon 
her  accounting  as  guardian  with  the  amount  ex- 
pended In  building  the  bam. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  {  108 ;    Dec.  Dig.  i  65.*] 

6.  Insane  Persons  (g  65*)— De  Facto  Guard- 
ians— Claims. 

Where  a  farm  in  which  an  incompetent 
ward  had  a  life  tenancy  was  mn  down  when  a 
remainderman  took  possession  as  de  facto  guard- 
ian in  good  faith,  and  the  guardian  expended 
$100  per  year  for  repairs,  wells,  etc  which  were 
absolutely  essential  to  the  enjoyment  of  the  life 
tenancy,  and  in  connection  with  good  husbandry 
increased  the  valne  of  the  farm  from  $1,500  to 
$3,000  and  the  rental  value  $100  per  year,  the 
guardian  should  be  allowed  the  expenditures 
upon  her  accounting. 

[EM.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent  Dig.  {  lOS;   Dec.  Dig.  {  60.*] 

&  Insane  Persons  (t  65*)— Dx  Facto  Gdabd- 

lANs— Claims. 

Where  a  remainderman  in  good  faith  took 
possession  of  a  farm  acting  as  de  facto  guardian 
for  the  incompetent  life  tenant,  cultivated  the 
farm  for  the  life  tenant's  benefit  in  a  profitable 
manner,  household  expenses  amounting  to  $20  a 
year  and  a  charge  for  services  of  the  guardian's 
husband  in  working  upon  and  managing  the 
farm  at  $30  a  montn,  the  services  being  neces- 
sary to  tne  proper  working  of  the  land,  should 
be  allowed  as  a  credit  upon  the  guardian's  ac- 
counting. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent  Dig.  <  106;   Dec  Dig.  {  65.*] 


•For  otbor  cases  see  (am*  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  data,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Mich.) 


SMITH  T.  CAMERON. 


565 


7.  INSAKK  PeBSONS  (g  41*)— GOMPEKSATION. 

The  ward,  being  quite  deficient  physically, 
being  deaf  and  nearly  damb,  and  given  to  the 
aa«  of  intoxicants  and  frequently  side,  the  de 
facto  guardian  should  be  allowed  as  compensa- 
tion for  caring  for  him  the  reasonable  charge  of 
$10  per  month  for  62  months'  care. 

{ESA.  Note.— For  other  cases,  see  Insane  Per- 
Bons,  Cent.  Dig.  i  63 ;   Dec.  Dig.  i  41.»] 

8.  INBAHS    PeBSORS    (g   65*)— CLAIMS. 

The  de  facto  guardian  and  her  husband 
working  for  the  ward  were  entitled  to  board  and 
lodging  at  the  ward's  expense,  but  no  such 
charge  should  be  allowed  for  their  children  liv- 
ing with  them,  and  not  so  employed. 

[Ed.  Note. — For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  g  108;    Dec.  Dig.  g  65.*] 

Error  to  Circuit  Court,  Newaygo  County; 
Lewis  6.  Palmer,  Judge. 

In  tbe  matter  of  the  estate  of  Hiram  Cam- 
eron. Appeal  by  Susie  Smith,  de  facto  guard- 
Ian,  from  an  order  of  the  probate  court  made 
on  an  accounting  of  her  administration,  was 
dismissed  by  tbe  circuit  court,  and  she  brings 
error.    Reversed  and  remanded. 

Argued  before  MONTGOMERT,  OSTRAND- 
ER,  HOOKER,  McALVAY,  and  BROOKE,  JJ. 

Turner  &  Turner  (Cross,  Lovelace  &  Ross,  of 
counsel),  for  appellant.  George  Luton  (Al- 
bert 6.  Day,  of  counsel),  for  appellee 

McALVAY,  3.  In  an  opinion  handed  down 
(In  re  Estate  of  Hiram  Cameron,  122  N.  W. 
278)  will  be  found  a  statement  showing  the 
facts  relative  to  this  controversy.  The  ap- 
pellant, as  Is  held  in  that  opinion,  was  guard- 
tan  de  facto  of  Hiram  Cameron,  and  he  had 
the  undoubted  right  to  have  an  accounting  of 
her  administration.  This  case  is  concerned 
only  with  that  accounting.  Such  accounting 
was  had  in  the  probate  court,  and  an  appeal 
was  taken  by  the  acting  guardian  from  the 
order  made  thereon  to  the  circuit  court, 
where  the  small  balance  of  the  account  in 
her  favor  as  found  by  the  probate  court  was 
disallowed,  and  the  appeal  dismissed.  From 
this  order  and  judgment  the  case  is  brought 
to  this  court  ui>on  a  writ  of  error  by  the 
acting  guardian.  In  the  case  above  referred 
to  the  order  of  the  probate  and  circuit  court 
revoking  and  canceling  the  appointment  of 
the  guardian  left  the  matter  of  the  account- 
ing to  be  determined  upon  the  record  in  this 
case.  The  findings  and  Judgment  of  the  cir- 
cuit court  mast  be  considered  as  an  allow- 
ance of  the  account  as  restated  and  allowed 
by  the  probate  court,  except  as  to  the  bal- 
ance of  $24.50  there  found  to  be  due  the  ap- 
pellant Therefore,  In  discussing  the  errors 
which  are  assigned,  we  will  consider  the  orig- 
inal account  and  the  restatement  of  the  pro- 
bate court  as  the  basis  for  the  Judgment  ap- 
pealed from. 

This  appellant  has  already  been  held  by 
this  court  to  have  been  de  facto  guardian  of 
this  estate.  This  de  facto  guardian  will  be 
held  subject  to  all  the  duties  and  liabilities 
of  a  guardian.    There  Is  no  dispute,  but  that 


this  is  the  law  governing  the  acts  of  such 
guardians.  15  Am.  &  Eng.  Eucyc.  of  Law  (2d 
Ed.)  116.  The  theory  of  considering  this 
guardian  a  lessee  from  year  to  year  acted  up- 
on by  the  probate  court  in  stating  and  pass- 
ing upon  her  final  account,  and  which  tbe 
court  below  adopted,  was  one  not  applicable 
to  this  case,  and  one  which  might  work  hard- 
ship to  either  or  both  parties.  The  rule  is 
that  the  rights  of  a  de  facto  guardian  will  be 
recognized  so  far  as  to  entitle  him  to  an 
equitable  credit  for  expenditures  which  were 
made  for  the  ward,  and  which  would  hare 
been  allowed  had  the  guardian  been  a  legal 
one.  15  Am.  &  Eng.  Encyc.  of  Law,  supra. 
It  does  not  appear  that  appellant  in  this 
case  did  not  undertake  the  guardianship  in 
good  faith.  The  Irregularities  which  made 
her  appointment  Invalid  doubtless  were  not 
of  her  making.  She  was  not  a  guardian 
without  any  color  of  right.  Nevertheless  she 
must  be  held  to  a  strict  accounting  of  all  her 
acts  and  doings  relative  to  this  estate.  She 
win  be  charged  with  all  of  the  property  which 
came  Into  her  hands,  all  receipts  from  all 
sources  during  the  period  covered  by  the 
accounting,  and  be  given  credit  for  proper- 
ty on  hand  and  for  all  lawful  disbursements. 
The  guardian's  account  is  Itemized,  showing 
all  receipts  and  all  disbursements,  and  also 
showing  all  personal  property  on  hand.  As 
to  this  part  of  her  accounts,  and  of  their  ac- 
curacy, there  Is  no  dispute.  Immediately  aft- 
er her  supposed  appointment,  she  moved  with 
her  family  upon  the  farm  occupied  by  her 
ward,  and  took  possession  of  the  personal 
property,  of  which  an  Inventory  was  taken. 
The  ward  was  a  tenant  for  life  of  the  real 
estate.  The  bam  situated  on  this  land  was 
destroyed  by  fire  caused  by  lightning.  There 
was  Insurance  in  the  name  of  the  guardian  on 
the  building  and  on  the  contents,  consisting 
of  hay,  grain,  and  other  personal  property. 
The  loss  was  adjusted  and  paid,  $400  total 
loss  on  bam  and  $407.46  loss  on  contents, 
consisting  of  58  tons  of  hay,  200  bushels  of 
oats,  and  87  bushels  of  wheat.  The  amount 
of  this  Insurance  has  been  charged  by  the 
guardian  against  herself  as  cash  received. 

Complaint  is  made  that  the  court  was  In 
error  in  the  disposition  made  of  this  insur- 
ance Item.  It  was  error  upon  the  theory  of 
a  leasing,  for  In  that  case  the  hay,  grain, 
and  produce  belonged  to  the  lessee,  and  she 
would  be  personally  entitled  to  the  insurance 
recovered  npon  her  property  destro,ved.  And 
upon  any  other  theory  we  think  there  was 
error  In  the  disposition  of  this  item.  It  was 
correctly  credited  to  the  estate,  but  the  court 
refused  to  charge  against  the  estate  the 
amount  expended  by  tbe  guardian  In  build- 
ing a  new  bam  with  this  money  on  the 
ground  that  it  went  to  the  benefit  o^the  In- 
heritance. It  is  included  In  a  long  schedule 
of  items  amounting  altogether  to  the  sum 
of  $1,012.08,  all  of  wblch  were  disallowed 


*For  other  tasM  tea  same  topic  and  aectlon  NUMBER  In  Dec.  *  Am.  Digs.  ISOT  to  dat*.  *  Reporter  IndexM 


Digitized  by  LjOOQ  l€ 


666 


122  NORTHWBSTBEtN  BBPOBTER. 


(Mich. 


upon  the  same  ground.  The  argument  Is 
made  In  this  court  on  behalf  of  the  ward 
that  the  entire  Insurance  belonged  to  the  Ufe 
tenant,  and,  although  he  has  not  appealed,  it 
is  asserted  that  the  court  was  In  error  in 
holding  otherwise.  This  Is  a  dispute  be- 
tween the  de  facto  guardian  and  the  ward. 
The  company  paid  the  Insurance  promptly. 
The  barn  was  a  total  loss  and  Insured  for 
more  than  tbe  Interest  of  the  Ufe  tenant 
The  authorities  are  not  harmonious  upon 
ther  question  here  InvolTed.  They  agree 
that,  where  no  requirement  Is  contained  in 
the  instrument  creating  the  life  estate,  tlie 
life  tenant  is  not  ttound  to  insure  the  Inter- 
est of  remaindermen — also,  that  either  party 
may  Insure  for  his  own  benefit.  10  Cyc.  632. 
A  line  of  authorities  holds  that  neither  life 
tenant  nor  remainderman  has  any  claims 
upon  the  proceeds  of  the  policy  of  the  oth- 
er; tliat  the  contract  of  Insurance  is  a  per- 
sonal contract  of  Indemnity  against  loss, 
and  the  sum  paid  is  in  no  proper  or  Just 
sense  the  proceeds  of  the  property.  Harri- 
son v.  Pepper,  166  Mass.  289,  44  N.  B.  222, 
33  L.  R.  A.  239,  65  Am.  St.  Rep.  404,  and 
cases  cited.  A  well-considered  case  taking 
a  contrary  view  of  the  question  is  Green  v. 
Green,  50  8.  C.  614,  532,  et  seq.,  27  S.  E.  939, 
62  Am.  St.  Rep.  851-854,  which  holds  that 
a  trust  arises  in  favor  of  remaindermen 
where  the  life  tenant  recovers  the  value  of 
buildings  destroyed  by  fire.  The  court  said: 
"We  therefore  think  that  sound  public  pol- 
icy requires  that  any  money  collected  by  a 
life  tenant  on  a  total  loss  by  fire  should  be 
used  In  rebuilding  or  should  go  to  the  re- 
mainderman, reserving  the  interest  for  life 
for  the  life  tenant."  8  Ballard  on  B.  E., 
par.  386,  and  cases  cited.  See,  also,  Hop- 
kins V.  Keazer.  89  Me.  347,  36  AW.  015.  In 
the  case  at  bar  the  de  facto  guardian  was 
one  of  the  remaindermen,  and  from  the  rec- 
ord an  Intention  may  be  inferred  that  she  in- 
tended to  provide  protection  for  them.  The 
de  facto  guardian  in  this  case  must  be  con- 
sidered as  trustee  for  the  life  tenant  In  tak- 
ing this  Insurance  as  such  guardian.  She 
received  from  the  Insurance  company  and 
held  the  full  value  of  the  bam  in  her  hands, 
and  put  it  to  a  lawful  and  necessary  use. 
It  would  certainly  be  Inequitable  to  give 
this  money  to  the  ward,  and  much  more  in- 
equitable to  charge  it  to  the  de  facto  guard- 
ian, who  In  good  faith  has  used  It  In  the  In- 
terest of  both  the  ward  ard  remaindermen, 
having  made  an  equitable  apportionment  of 
the  fund  by  her  action.  In  equity  this  cred- 
it should  have  Iieen  allowed  to  her.  See 
Convls  V.  Citizens'  Mutual  Fire  Ins.  Co.,  127 
Mich.  616,  86  N.  W.  994. 

The  other  Items  in  this  schedule  for  which 
she  wag  disallowed  credit  were  for  building 
fences,  hogbouses,  comcrib,  and  digging 
wells,  for  lumber,  brick,  cement,  and  lil;or 
used  and  employed  in  constructing  the  same, 
and  for  some  general  repairs.  The  record 
shows  that,  when  the  guardian  was  appoint- 


ed and  entered  upon  her  supposed  duties, 
this  farm  was  run  down.  There  were  no 
wells,  and  it  was  necessary  to  carry  drink- 
ing water  two  miles.  There  were  no  fences, 
and  no  proper  places  to  keep  and  care  for 
the  stock  and  produce.  About  $100  per  year 
has  been  expended  for  these  purposes,  whlcli. 
In  connection  with  good  husbandry,  has  in- 
creased the  value  of  the  farm  in  an  amount 
from  $1,600  to  $3,000  and  the  rental  value 
$100  a  year.  This  increased  value  has  di- 
rectly benefited  the  ward,  and  will  continue 
to  benefit  him  during  the  remainder  of  his 
life  expectancy  of  81  years.  The  record  also 
shows  that  these  expenditures  were  abso- 
lutely essential  and  necessary  to  the  enjoy- 
ment of  the  life  tenancy.  It  was  good  busi- 
ness judgment  on  the  part  of  the  guardian 
who  acted  in  good  faith,  and  she  should 
have  been  allowed  tbese  disbursements.  The 
court  was  in  error  In  disallowing  ibem.  An 
itemized  schedule  amounting  to  $494.19  was 
disallowed  by  the  court  under  the  theory  of 
a  leasing,  because  they  pertained  to  the  cul- 
tivating and  carrying  on  the  farm  and  in- 
cluded items  of  family  expense.  The  farm- 
ing was  carried  on  for  the  benefit  of  the 
ward.  It  was  his  source  of  income.  It  is 
certain  that  the  record  shows  that  the  farm- 
ing was  conducted  in  a  profitable  manner. 
We  are  to  determine  whether  these  items 
should  be  credited  to  the  guardian.  In  so 
far  as  they  pertain  to  cultivating  the  land 
and  carrying  on  the  farming,  they  are  prop- 
er charges,  and  amount  to  $375.  The  house- 
hold expenses  charged  were  not  heavy,  and 
amounted  to  $20  per  year,  showing  that  but 
little  was  required  outside  of  the  products 
of  the  farm.  This  amount  was  not  unrea- 
sonable to  expend  for  this  purpose,  and  was 
for  flour,  meat,  and  other  necessaries.  They 
should  have  been  allowed. 

There  were  some  items  outside  of  the  gen- 
eral receipts  and  disbursements  In  this  ac- 
count which  were  not  allowed.  These  con- 
sist of  (1)  a  charge  for  services  of  Leon 
Smith,  husband  of  the  acting  guardian,  em- 
ployed by  her  in  working  upon  and  mana- 
ging the  farm  for  72  months  at  $30  per 
month;  (2)  an  Item  charged  for  her  personal 
services  as  guardian  and  for  nursing  and 
caring  for  the  ward  for  62  months  at  $10  a 
month.  The  first  item  was  disallowed  and 
stricken  out  and  the  leasing  theory  substi- 
tuted. There  is  no  dispute  concerning  these 
services  or  the  value  of  them.  It  is  not 
shown  that  like  services  could  have  been 
procured  for  less  money.  Mr.  Smith  used 
his  own  heavy  team  to  do  the  heavy  work, 
and  no  charge  is  made  for  its  use.  These 
services  were  necessary  to  the  proper  work- 
lug  of  the  land.  The  item  was  a  necessary 
expense  and  should  have  been 'allowed.  The 
acting  guardian  should  be  allowed  reasona- 
ble compensation  for  care  of  the  ward,  who 
was  her  brother.  He  was  quite  deficient 
physically,  being  deaf  and  nearly  dumb.  He 
was  given  to  the  use  of  Intoxicants,  and  was 


Digitized  by  VjOOQ  l€ 


HldL) 


CONLEY  T.  SUPREME  COURT,  L  O.  P. 


667 


frequmtly  sick.  She  attended  to  his  wants 
during  tbese  years,  and  the  record  shows 
that  she  did  It  well  and  with  patience  and 
tenderness.  Her  charge  of  only  $10  a  mouth 
Is  reasonable,  and  it  is  allowed. 

It  Is  claimed  that  the  board  of  the  chll- 
dren  of  the  Smiths  should  be  considered  in 
adjusting  the  charge  of  Mr.  Smith  for  his 
services.  The  husband,  acting  as  hired  man, 
and  the  wife,  devoting  her  time  to  her  broth- 
-er  and  the  household  duties,  were  each  en- 
titled to  board  and  lodging.  The  children 
cannot  be  so  considered.  From  the  evidence 
we  determine  that  on  the  average  two  of  the 
children  lived  on  this  farm  during  the  six 
years.  A  fair  charge  for  board  and  lodging 
would  be  at  the  rate  of  $150  per  year  each 
for  two  children  for  the  entire  time,  which 
would  amount  to  $1,800.  From  this  should 
be  deducted  $100  a  year  for  produce  brought 
to  the  farm  by  Mr.  Smith  and  used  In  sup- 
port of  the  family  and  the  ward.  This 
would  leave  $1,200  to  be  deducted  from  the 
Item  of  Mr.  Smith  for  labor  and  services. 
None  of  the  other  items  of  this  account  are 
disputed. 

The  final  account  presented  will  be  stated 
and  allowed  in  accordance  with  the  forego- 
ing opinion,  which,  if  footings  are  correct, 
will  leave  a  balance  to  the  credit  of  the  de 
facto  guardian  of  $1,365.66.  The  personal 
property  on  hand  at  the  time  of  the  account 
rendered,  amounting  to  $1,434.34,  showing 
an  increase  of  $1,124.47  over  the  amount  re- 
ceived, belongs  to  the  ward,  and,  if  not  al- 
ready delivered  to  him,  is  held  by  Mrs. 
Smith  subject  to  bis  order,  or  the  order  of 
the  representative  of  the  ward  duly  'appoint- 
ed by  a  court  of  competent  Jurisdiction,  and 
on  the  order  of  such  court. 

The  Judgment  of  the  circuit  court  is  re- 
versed, and  the  cause  will  be  remanded  to 
the  circuit  court,  where  a  Judgment  will  be 
entered  in  due  form  in  accordance  with  this 
opinion  in  favor  of  the  appellant  for  the 
amount  above  stated  and  against  the  peti- 
tioner and  ward,  Hiram  Cameron,  and  that 
u  certified  copy  of  such  Judgment  be  trans- 
mitted to  the  probate  court  of  Newaygo 
county,  Mich.,  and  that  appellant  recover 
costs  of  the  circuit  and  supreme  courts,  to 
be  paid  out  of  the  estate. 


CONLEW  T.  SUPREME  COURT,  I.  O.  F. 

(Supreme  Court  of  Michigan.     Sept.  21,  1909.) 

1.  INSITBANCK  (I  819*)— Mutual  Benefit  Im- 
suBANcK  —  Actions  —  SumciENCT  of  Bvi- 

DENCK. 

In  an  action  on  a  mutual  benefit  certifi- 
cate, when  the  defenie  was  that  insured's  cer- 
tificate bad  lapsed  under  the  provision  of  the 
by-laws  because  of  his  use  of  morphine,  evidence 
held  not  to  sustain  a  finding  th^t  insured  was 
in  such  a  physical  condition  that  the  habitual 


use  of  morphine  was  necessary  to  prolong  his  life 
or  to  afford  temporary  relief. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  §  2006 ;   Dec.  Dig.  i  819.*] 

2.  Tbiai  (J  168*)— Just  Qubstion. 

It  was  error  to  leave  to  the  jury  a  ques- 
tion not  supported  by  the  evidence. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  i  379 ;   Dec  Dig.  |  168.*] 

3.  Insurance  (S  805*)— Mutual  Benefit  In- 
suBANCE— Actions— Right  to  Sue. 

Where  a  member  of  a  mutual  benefit  com- 
pany was  suspended  at  his  death,  and  his  bene- 
ficiary had  not  appealed  from  the  decision,  so  as 
to  exhaust  her  remedy  within  the  order  before 
suing,  as  required  by  the  by-laws,  which  ipso 
facto  forfeited  all  benefits  in  such  case,  the 
beneficiary  could  not  sue  on  the  claim. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  {{  1987,  1988 ;   Dec.  Dig.  {  805.*] 

4.  New  Trial  (§  68*)  —  Grounds  —  Vebdict 
Against  Evidence. 

Where  the  verdict  was  against  the  testi- 
mony on  a  material  issue  submitted,  a  new  trial 
should  have  l)een  granted. 

[EM.  Note.— For  other  cases,  see  New  Trial, 
Gent.  Dig.  H  185-140;   Dec.  Dig.  g  68.*] 

Error  to  Circuit  Court,  Lapeer  County: 
George  W.  Smith,  Judge. 

Action  by  Mary  Oonley  against  the  Su- 
preme Court,  Independent  Order  of  Forest- 
ers. Judgment  for  plaintiff,  and  defendant 
brings  error.  Reversed,  and  new  trial  or- 
dered. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDBR,  HOOICER,  and  MOORE,  JJ. 

Dickinson,  'Stevenson,  Cullen,  Warren  & 
Butzel  and  Geer,  Williams  &  Halpln,  for  ap- 
pellant   W.  B.  Brown,  for  appellee. 

HOOKER,  J.  The  plaintiff,  a  widow,  re- 
covered a  judgment  against  the  defendant, 
upon  a  certificate  issued  upon  the  life  of  her 
husband,  in  which  she  was  named  as  bene- 
ficiary. The  defendant  has  appealed.  The 
deceased  joined  the  defendant  order  In  1897. 
The  undisputed  testimony  shows  that  in 
1900  or  1901  he  began  taking,  morphine,  and 
as  early  as  1903  he  bad  become  addicted  to 
its  use,  and  that  in  that  year  he  went  to  an 
institution  for  the  cure  of  the  habit,  and  aft- 
er a  stay  of  three  months  he  returned  much 
improved.  The  plaintiff  so  testified,  and 
also  stated  that  he  did  not  use  morphine  for 
about  a  year  after  his  return,  during  which 
period  bis  health  was  much  b«tter,  and  that 
In  1906  be  had  again  become  addicted  to 
the  use  of  morphine,  and  went  to  an  Insti- 
tution at  Dearborn,  at  the  suggestion  of  his 
brothers,  and  afterwards  to  the  hospital  at 
Detroit,  because  he  wanted  to  be  cured  of  It. 
There  is  much'  evidence  justifying  the  con- 
clusion that  the  morphine  habit  is  deleteri- 
ous to  health  generally,  if,  indeed,  we  may 
not  take  Judicial  notice  of.  such  fact 

The  Importance  of  this  testimony  arises 
from  a  provision  (section  154)  of  defend- 
ant's by-laws,  which  provides  that:  "Any 
member  of  the  order  who  shall  engage  In 
or  participate  in  any  unlawful  or  foolhardy 


•for  oUier  cases.  ■«•  sua*  topic  and  lectlon  NUUBER  In  Dec.  &  Am.  Digs.  1907  to  date,  ft  Kaportsr  Indexes 


Digitized  by  VjOOQ  l€ 


S68 


122  NORTHWESTERN  REPORTER 


(Mlcb. 


andertaking,  or  who  shall  nse  intoxicants  or 
opiates  or  other  narcotics  to  such  excess  as 
to  endanger  his  health,  or  to  materially  af- 
fect the  risk  upon  his  life,  or  to  directly  or 
Indirectly  cause  his  death,  »  •  •  shall 
ipso  facto  forfeit  all  claim  of  whatever  na- 
ture which  be  or  his  beneficiaries  might  oth- 
erwise hare  had  upon  the  Supreme  Court, 
and  all  such  claims  shall  ipso  facto  lapse 
and  become  and  be  absolutely  null  and  void, 
and  he  and  hia  beneficiary  or  beneficiaries, 
or  heir  or  heirs,  or  legal  personal  representa- 
tive or  representatives,  shall  not  be  entitled 
to  receive  and  shall  not  be  paid  any  benefit 
whatsoever  by  the  Supreme  Court."  To 
break  the  force  of  the  testimony  mentioned 
above,  counsel  for  defendant  offered  testi- 
mony by  the  plalntifF  tending  to  show  that 
In  1900  or  1901  her  husband  Injured  bis  back, 
and  that  he  afterwards  suffered  great  pain, 
and  that  so  far  as  she  knew  he  always  took 
morphine  for  the  purpose  of  allaying  such 
pain.  Upon  this,  and  professional  evidence 
that  morphine  is  a  drug  given  to  allay 
pain,  and  that  when  the  patient  Is  in  ex- 
tremis its  use  may  prolong  life,  counsel 
claimed  that  It  was  competent  for  the  Jury 
to  find  that  the  deceased  had  no  morphine 
habit  deleterious  to  health,  or  to  materially 
affect  the  risk  upon  his  life;  and  it  is  evi- 
dent that  the  Jury  so  determined. 

The  testimony  also  conclusively  showed 
that  a  short  time  before  the  death  of  Dr. 
Conley,  and  late  in  August,  1906,  the  de- 
fendant first  received  information  that  he 
had  become  addicted  to  the  nse  of  morphine 
to  an  extent  that  It  endangered  his  health 
and  materially  affected  the  risk  upon  his 
life,  and  after  an  Investigation  a  citation 
was  served  upon  him  to  show  cause  to  the 
Executive  Council  of  the  order  on  October 
6,  1006,  why  he  should  not  be  expelled  from 
the  order  for  using  morphine.  He  paid  no 
attention  to  the  citation,  and  the  Executive 
Council  suspended  Dr.  Conley  on  October 
6th.  Notice  to  this  effect  was  sent  to  the 
local  court  on  October  10,  1906,  and  also  to 
Dr.  Conley,  and  on  October  22d  he  signed  a 
letter,  written  by  this  plaintiff,  appealing 
from  the  decision  to  the  Supreme  Court  of 
the  order,  and  this  was  duly  forwarded. 
Dr.  Conley  died  on  October  24,  1906.  The 
appeal  was  not  prosecuted  by  or  on  behalf 
of  the  beneficiary,'  as  it  might  have  been 
under  the  provisions  of  by-laws  No.  196: 
"Sec.  196.  (1)  The  right  of  appeal  shall  be 
vested  In  every  member  of  the  order,  and 
in  case  of  the  death  or  disability  of  a  mem- 
ber the  right  of  appeal  shall  be  vested  In 
his  beneficiary  or  legal  personal  representa- 
tive or  other  person  deriving  legal  rights 
from  him  or  theai  or  any  of  them."  De- 
fendant contends  that  by  reason  of  this  de- 
cision of  the  Executive  Council  the  deceased 
was  not  a  member  In  good  standing  at  the 
time  of  his  death,  and  therefore  no  recovery 
would  be  had  upon  the  certificate. 

Plalutlff  made  several  claims  in  answer  to 


this:  (1)  That  it  was  an  unreasonable  by- 
law, which  required  the  member  to  go  to 
Toronto,  Canada,  to  prosecute  the  appeal, 
and  therefore  that  there  was  no  obstacle  to 
this  suit  (2)  That  the  right  of  the  defend- 
ant to  assert  plaintiff's  habit  and  suspension 
as  a  defense  was  waived  by  accepting  dues 
for  the  month  of  October  after  learning  of 
such  habit  The  testimony  bearing  on  this 
subject  is  in  substance  that  on  September 
30,  and  before  It  was  brought  to  defendant's 
attention  that  Dr.  Conley  had  such  habit, 
the  local  court  collected  $1.19,  the  dues  for 
October.  Of  this  sum  94  cents  was  sent  to 
the  defendant  as  its  share.  .This  reached 
defendant  on  October  23d,  which  was  the 
first  Information  received  by  it  of  such  col- 
lection. On  October  30th  It  returned  the 
fund  to  the  local  court  with  directions  to 
hand  the  money  back  to  the  persons  who 
paid  It,  for  the  reason  that  Dr.  Conley  was 
not  a  member  In  good  standing  at  the  time 
it  was  paid.  As  we  understand  it  the  sura 
of  94  cents  was  tendered  back  twice  by  the 
local  court 

Proofs  of  death  were  filed  by  the  plaintiff. 
The  by-laws  provide  that  "if  the  Supreme 
Chief  Ranger  has  doubt  of  the  validity  of 
the  claim,  he  may  reject  it"  The  by-laws 
(section  201)  provide  further  that:  "Sec.  201. 
(1)  No  member  of  the  order,  nor  his  bene- 
ficiary, nor  his  legal  personal  representative, 
nor  other  person  In  any  way  interested  in 
any  of  his  benefits,  nor  any  one  deriving 
legal  rights  from  him,  or  them,  or  any  of 
them,  shall  be  entitled  to  bring  any  civil  ac- 
tion or  other  legal  proceeding  against  the 
Supreme  Court  or  against  any  other  court 
or  branch  of  the  Supreme  Court  until  he 
shall  have  exhausted  all  the  remedies  pro- 
vided in  the  constitution  and  laws  by  ap- 
peals and  otherwise;  and  any  member  of 
the  order,  or  his  beneficiary,  or  his  legal  rep- 
resentative, or  other  person  In  any  way  In- 
terested In  any  of  his  benefits  or  deriving 
legal  rights  from,  through,  by,  or  under 
him  or  them,  or  any  of  them,  who  shall 
bring  any  civil  action  or  other  legal  proceed- 
ing against  the  Supreme  Court  or  against 
any  court  or  any  other  branch  of  the  Su- 
preme Court,  before  be  shall  have  exhausted 
all  remedies  within  the  order  by  appeals 
and  otherwise,  shall  Ipso  facto  forfeit  all 
benefits  and  all  rights,  claims,  and  demands 
therein  and  thereto  to  which  he  or  they  or 
any  of  them  might  otherwise  hare  been  en- 
titled, and  If  he  be  a  member  of  the  order 
he  shall  Ipso  facto  stand  suspended  from  the 
order.  (2)  Where  the  laws  of  the  province, 
state,  or  country  In  which  a  member  has  a 
fixed  place  of  abode,  or.  If  deceased,  had  a 
fixed  place  of  abode  at  the  time  of  hia  death, 
legally  give  and  recognize  the  right  of  the 
member  or  other  person  claiming  legal  rights 
under  him  to  maintain  an  action  after  th4> 
decision  of  the  Executive  Council  on  appeal 
on  matters  relating  to  the  monetary  benefits 
of  the  order,  the  right  la  hereby  expressly 


Digitized  by  VjOOQ  l€ 


MlcbO 


CONLKY  T.  BUPEEME  COURT,  L  O.  P. 


569 


reserved  to  the  member  himself,  or  to  his 
ben^darr  or  legal  personal  representative, 
or  to  other  persons  deriving  legal  rights 
from  him  or  them,  or  any  of  them,  to  bring 
action  thereon  In  any  civil  court  of  compe- 
tent Jurisdiction;  provided  that  all  the 
remedies  In  section  197  shall  first  be  resort- 
ed to  and  exhausted  by  appeals  and  other- 
wise as  a  condition  precedent  to  the  right 
to  bring  any  such  action  or  maintain  the 
same  In  a  court  of  law  or  equity." 

The  points  discussed  are:  (1)  That  the 
audispnted  testimony  shows  that  deceased 
had  used  morphine  to  such  excess  as  to  en- 
danger his  health  and  materially  affect  the 
risk  on  his  life,  and  the  court  should  have 
directed  a  verdict  for  the  defendant  for  that 
reason.  (2)  That  under  the  contract  the  oc- 
casion of  deceased's  use  of  morphine  was 
immaterial,  and  it  was  error  to  submit  the 
case  to  the  Jury  upon  the  theory  that,  if 
taken  to  'allay  pain.  It  was  not  a  violation 
of  the  contract.  (3)  The  court  should  have 
directed  a  verdict  tipon  the  ground  that  by 
reason  of  bis  suspension  the  deceased  was 
not  a  member  of  the  defendant  order  In  good 
standing  at  the  time  of  his  death.  (4)  That 
a  verdict  should  have  been  directed  in  de- 
fendant's favor  upon  the  ground  that  plain- 
tUT  did  not  appeal  from  the  order  of  the 
Chief  Ranger  disallowing  her  claim.  (9) 
That  the  court  rared  in  denying  a  motion 
for  new  trial. 

The  proof  in  this  cause  that  the  deceased 
was  addicted  to  the  use  of  morphine  to  an 
extent  that  was  injurious  to  and  endangered 
his  health  and  was  material  to  the  risk  is 
overwhelming.  The  learned  circuit  Judge 
must  have  taken  this  view  of  It,  for  be  stated 
that:  "I  feel  very  free  to  say  that,  if  I  were 
to  dispose  of  this  as  a  question  of  fact,  I 
could  not  for  a  moment  give  this  lady  a  Judg- 
ment. From  my  mind  the  facts  are  almost 
overwhelming  that  he  did  have  the  habit  of 
taking  morphine,  and  that  under  the  by- 
laws of  this  order  and  the  provisions  of  the 
sections  that  have  been  read  here  his  benefi- 
ciary could  not  recover;  but  there  is  some, 
and  I  am  not  so  sure  but  there  is  enough, 
testimony  here  so  that  the  plaintiff  is  en- 
titled to  argue  question,  answers  that  the 
doctors  gave  here,  that  the  danger  from  the 
pain  was  greater  than  that  of  the  morphine, 
and  he  did  not  have  the  habit  at  all,  but  be 
was  taking  it  for  the  pain.  I  could  not  be- 
lieve that  at  all ;  but  I  think  it  can  be  argued 
to  the  Jury.  If  he  had  the  habit,  whether  it 
grew  by  administering  morphine  for  the  pain 
in  the  first  place,  or  acquired  the  habit,  the 
insurance  is  void,  or  was  void  when  the 
question  was  raised  by  the  order.  I  have  ' 
more  confidence  in  the  Jury  than  counsel  for 
defendant  has.  If  my  record  and  reputation  ! 
depended  upon  it,  I  think  I  would  take  this 
case  from  the  Jury.  I  think  I  should."  (Rec- 
ord, pp.  123,  124.)  "But  for  one  proposition 
I  should  have  disposed  of  this  case  myself. 
But  it  Is  not  the  province  of  the  court  to  dis- 


pose of  disputed  questions  of  fact  Counsel 
for  the  claimant  present  one  proposition  to 
you  as  an  excuse  by  Dr.  Conley  In  the  use 
of  morphine,  and  I  can  state  it  no  better  than 
reiterate  Senator  Brown's  version  made  in 
your  bearing  a  moment  ago.  He  used  this 
expression:  'Not  a  drop,  mind  you,  not  a 
grain  a  day,  of  morphine  was  used  by  Or. 
Conley,  except  to  allay  pain.'  And  if  the 
Jury  find  this  to  be  so  then  the  plaintiff  is 
entitled  to  a  verdict  The  statement  of  the 
claimant  is,  and  the  theory  presented  for  her 
by  her  counsel  is,  this:  That  Dr.  Conley  bad 
his  back  injured  several  years  before  be 
died,  I  think  by  the  lifting  of  a  tub  and  slip- 
ping at  the  time,  and  that  at  some  subsequent 
period,  I  think  two  or  three  years,  perhaps  I 
am  wrong  about  the  time,  be  sprained  his 
back  again,  and  that  those  sprains  gave  rise 
to  severe— counsel  say,  excruciating — ^paln, 
and  tliat  this  was  continued,  and  that  Dr. 
Conley,  being  a  physician,  took  this  morphine 
entirely  to  allay  pain,  and  that  he  never  did 
indulge  In  it  as  a  habit  at  all ;  that  he  took 
no  more  morphine  than  was  actually  neces- 
sary to  allay  this  excruciating  pain,  and  he 
never  continued  It  any  longer  than  was  nec- 
essary to  allay  the  pain.  Now  If  It  Is  estab- 
lished by  a  fair  preponderance  of  the  evi- 
dence that  those  are  the  facts,  then  you  may 
find  a  verdict  in  favor  of  the  plaintiff.  I 
tiave  given  the  law  to  be  that  unless  Dr. 
Conley  commenced  taking  this  morphine  for 
the  purpose  of  allaying  pain,  that  unless  he 
had  continued  pain  in  the  back  which  made 
It  advisable  to  administer  it  and  that  he 
took  no  more  of  it  than  was  necessary  to 
allay  continued  pain,  so  that  you  can  fairly 
say  that  the  injury  from  the  pain  would  have 
been  as  great  without  the  morphine  as  in  the 
using  of  it  to  allay  the  pain,  your  verdict 
must  be  for  the  defendant  But  If  you  can 
fairly  say  that  this  is  true  from  the  record, 
then  your  verdict  should  be  for  the  plaintiff 
in  the  sum  of  one  thousand  seventy-nine  and 
i»/ioo  dollars." 

Again,  if  there  is  any  testimony  that  tends 
to  show  that  the  morphine  taken  during  this 
long  period  was  In  every  instance  taken  to 
allay  excruciating  and  continuous  pain,  re- 
sulting from  an  injury  to  deceased's  back, 
and  not  only  that  but  that  the  morphine  pro- 
longed rather  than  shortened  his  life,  and 
therefore  was  not  injurious  to  the  risk,  it 
must  be  found  in  the  testimony  of  the  plain- 
tiff, or  the  brother  of  deceased,  snd  that  of 
experts  who  testified  that  cases  might  arise 
where  such  would  be  true.  No  one  testified, 
however,  that  in  his  opinion  this  was  true  in 
this  case,  either  from  knowledge  of  condi- 
tions, or  In  answer  to  hypothetical  ques- 
tions fatrly  covering  the  conclusively  shown 
conditions,  and  the  proof  most  conclusively 
shows  the  contrary.  The  wife's  testimony 
shows  that  her  husband  went  twice  to  be 
cured  of  the  drug  habit,  after  the  alleged 
injury  to  his  back,  which  she  said  had  "so 
grown  on  him  that  in  her  opinion  he  coulJ  not 


Digitized  by  VjOOQ  l€ 


670 


122  NORTHWESVKKN  BEPOBTEB. 


(Mlcb. 


control  himself  in  its  use."  While  she  said 
that  he  was  a  very  sick  man  with  his  back, 
she  also  said  that,  when  he  said  he  was  going 
to  Elolae  to  get  well,  she  supposed  he  meant 
"well  of  the  morphine  habit,"  and  the  only 
way  he  could  get  well  of  that  was  to  go  some- 
where for  treatment"  Moreover,  on  his  re- 
turn he  was  better  as  to  the  habit,  and  his 
general  health  was  "very  much  improved," 
and  for  a  time,  perhaps  a  year,  he  refrained 
from  taking  morphine;  but  In  1906,  he  had 
occasion  to  go  again  at  the  suggestion  of  tiis 
brothers.  She  said:  "He  went  to  the  Be- 
ti«at  because  his  brothers  thought  he  would 
■have  good  care  there.  Se  had  become  ad- 
dicted to  the  use  of  morphine  again,  and 
w^ent  there  for  treatment,  because  he  wanted 
to  be  cured  of  it  I  can't  tell  exactly  bow 
long  he  had  been  taking  morphine  after  he 
«ame  from  Eloise  before  he  went  to  Dear- 
born, and  don't  know  bow  long  he  was  In 
-that  Retreat  at  Dearborn,  and  I  suppose  that 
was  still  a  hospital  for  the  treatment  of  per- 
sons addicted  to  the  morphine  habit  the 
same  as  it  was  before."  The  testimony  of 
John  Conley,  deceased's  brother,  does  not 
«how  that  the  deceased  took  morphine  for 
pain,  or  that  be  did  not  go  to  Detroit  and 
Eloise  to  get  cured  of  the  morphine  habit 
In  fact  there  Is  no  testimony  from  which  it 
«an  be  legitimately  inferred  that  during  this 
period,  from  1900  to  1906,  deceased  was  in  a 
condition  where  morphine  was  necessary  to, 
or  would,  prolong  his  life.  He  was  not  in  a 
critical  condition,  requiring  "temporary  re- 
lief from  morphine,  certainly  not  where  its 
liabltual  and  regular  use  was  required  to 
prolong  his  life.  It  was,  therefore,  error  to 
leave  this  question  to  the  Jury. 

Counsel  for  defendant  also  urged  that  the 
deceased  was  not  a  member  in  good  standing 
At  the  time  of  his  decease,  having  been  sus- 
pended and  bis  appeal  not  having  been  prose- 
cuted by  the  plaintiff  or  deceased's  represen- 
tative; and,  again,  that  plalntifTs  failure  to 
appeal  from  the  rejection  of  her  claim  pre- 
cluded her  from  prosecuting  it  in  a  court  of 
law,  she  not  having  exhausted  her  remedy 
in  the  tribunals  of  the  order  as  required  by 
the  by-laws  (see  by-law  201,  hereinbefore 
quoted);  and,  further,  that  under  the  by- 
laws the  decision  of  the  order  was  final  in 
this  state.  These  propositions  are  supported 
by  many  cases  In  this  state.  Van  Poucke 
T.  De  Paul  Soc.,  63  Mich.  878,  29  N.  W.  863 ; 
Canfield  v.  Maccabees,  87  Mich.  626,  49  N.  W. 
875,  13  I*  B.  A.  625,  24  Am.  8t  Bep.  186; 
Ilembeau  v.  Maccabees,  101  Mich.  161,  59 
N.  W.  417,  49  L.  B.  A.  592,  45  Am.  St.  Bep. 
400;  Fillmore  v.  Maccabees,  103  Mlcb.  437, 
61  N.  W.  785 ;  Id.,  109  Mich.  13,  66  N.  W.  675 ; 
Rose  V.  Patricians,  126  Mich.  577,  85  N.  W. 
1073;  Hoag  V.  Int  Congress,  134  Mich.  88, 
95  N.  W.  996 ;  Derry  v.  Maccabees,  135  Mich. 
494,  98  N.  W.  23 ;  Harris  v.  Typ.  Union,  144 
Mich.  422,  108  N.  W.  362. 


It  is  obvious,  also,  that  the  ooort  erred  In 
denying  the  motion  for  a  new  trial ;  the  ver- 
dict on  the  one  point  submitted  being  against 
the  testimony  in  the  case.  Other  points  dis- 
cussed by  appellee's  counsel  need  not  be  far- 
ther referred  to,  as  they  cannot  affect  tlie 
result 

The  judgment  is  reversed,  and  a  new  trial 
ordered. 


WEIBEB  v.  CITY  Or  DETROIT  et  aL 
(Supreme  Court  of  Michigan.     Sept  21,  1909.) 

1.  OONSTITDTIONAI.  LAW  ({  190*)— SfBCIAI.  IK- 
FBOVBMBNT  ASSESSICBNTS— BBTaOAOTIVK  LiBO- 
ISLATION— VAUDITT. 

The  Le^lature  cannot  by  retroactive  en- 
actment create  a  personal  liability  for  payment 
of  a  special  assessment  levied  for  the  opening 
of  a  street 

[Ed.  Note.— For  other  cases,  see  Constitution- 
al Law,  Cent  Dig.  {  631 ;   Dec.  Dig.  i  190.*] 

2.  Eminent  Domain  (§  223*)— Condemnation 
Proceedinos— Waives  or  Ibbeoulabitt. 

Pub.  Acta  1903,  p.  237,  Mo.  176,  amenda- 
tory of  the  general  village  act  (Pub.  Acts  1885, 
p.  56,  No.  3,  c.  13),  and  relating  to  public  im- 
proTements,  provides  for  condemnation  of  prop- 
erty taken  by  a  jury  of  12.  Section  12  pro- 
vides that,  upon  filing  the  verdict  of  the  jury,  it 
shall  be  entered  upon  the  justice's  docket  and 
that  he  shall  enter  judgment  of  confirmation, 
and  that  all  parties  are  required  to  take  notice 
of  the  confirmation.  The  act  also  makes  such 
judgment  of  confirmation  final  and  conclusive  as 
to  all  parties  not  appealing  therefrom  within  the 
time  therein  provided.  Held,  that  where  no  ap- 
peal was  taken  in  such  a  proceeding,  and  the 
award  was  paid  and  accepted  by  the  parties 
interested,  they  waived  an  irregularity  in  the 
proceedings,  in  that  the  verdict  finding  the  ne- 
cessity was  given  by  only  11  jurors. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do 
main,  Dec.  Dig.  i  223.*] 

3.  MUNICIPAI,  COBFOBATIONS  (S  450*)— PUB- 
LIC IMFBOVEUENTB  —  SPECIAI,  ASSESSMENTS. 

The  general  act  for  incorporation  of  vil- 
lages, providing  (Comp.  Laws,  |  2834)  that  lie- 
fore  oidering  any  public  improvement  any  part 
of  the  expense  of  which  is  to  be  defrayed  b^ 
special  assessment,  the  council  shall  obtam  esti- 
mates of  the  expense,  and  plats,  etc.,  when  prac- 
ticable, and  deposit  them  with  the  clerk,  and 
give  notice  thereof  and  of  the  proposed  improve- 
ment, and  of  the  district  to  be  assessed,  by  pub- 
lication in  a  newspaper  of  the  village,  relates 
to  improvements  ordered  by  the  common  coun- 
cil, and  has  no  reference  to  condemnation  fot 
a  street  opening,  under  Pub.  Acts  1903,  p.  248, 
No.  176,  section  31  of  which  provides  that,  after 
recording  by  the  clerk  of  the  judgment  and  ver- 
dict in  proceedings  to  determine  the  necessit; 
for  taking  private  property  for  an  Improvement 
under  the  preceding  section,  steps  may  be  taken 
by  the  council  for  collection  of  the  sums  award- 
ed by  the  jury,  and  the  council  may  assess  the 
whole  or  any  just  proportion  thereof  upon  own- 
ers or  occupants  of  real  estate  in  the  vicinity 
deemed  to  be  benefited,  and  shall  thereupon  by 
resolution  fix  the  assessment  districts;  no  no- 
tice of  the  fixing  of  the  district  being  required. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1074;  Dec  Dig.  i 
45a*] 


'*For  otber  cum  im  lame  toplo  and  teetioo  NUMBER  in  Dec.  A  Am.  Digs.  UOT  to  data,  A  Raportar  Indexat 


Digitized  by  VjOOQ  l€ 


Mich.) 


WKBBB  V.  CITY  OP  DETROIT. 


571 


4.  MumOIFAL    GOSFOBATIONB    ({    483*)— I^aB- 

uo  IiiFROvnaNT»— Sfbciai.  Absessuehtb— 

Vauditt. 

Pub.  Acta  1903,  p.  248,  No.  176,  {  31,  re- 
lating to  proceedings  for  taking  private  property 
for  public  improTements,  provides  that,  after  the 
necessity  therefor  has  been  determined  by  a 
jury,  the  assessment  shall  be  made  and  the 
amount  levied  and  collected  in  the  same  manner, 
and  by  the  same  officers  and  proceedings,  as  near 
as  may  be,  as  provided  in  the  ceneral  village 
act.  That  act  (Comp.  Laws  1897,  c.  87)  pro- 
vides that,  when  a  special  assessment  is  to  be 
made  pro  rata  upon  premises  in  a  special  dis- 
trict according  to  frontage  or  benefits,  the  coun- 
cil shall  order  it  to  be  made  by  the  board  of 
assessors,  etc.,  who  shall  make  out  an  assess- 
ment roll  describing  all  the  parcels  of  land  to 
be  assessed  and  the  valuation  thereof,  etc.  Held 
that,  where  no  valuation  of  lands  assessed 
against  a  person  was  made  in  the  assessment 
roll,  the  defect  rendered  tlie  assessment  void. 

[£!d.  Note. — For  other  cases,  see  Municipal 
Corporations,  Dec.  Dig.  {  483.*] 

5.  MUNICIPAI.   CORPOBATIONS   (§   514*)  —  PTJB- 
UO  lUFBOVEMENTS— SFECIAI.  ABSEBSUBNTS— 

Void  Assessment— Right  to  Reassess, 
It    being   apparent    that   the   property   so 
assessed  had  been  benefited,  relief  against  the 
void  assessment  should  not  preclude  a  proper 
reassessment. 

[BU.  Note. — ^For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  {  1212;    Dec.  Dig.  t 

Appeal  from  Circuit  Court,  Wayne  County, 
In  Chancery ;   Joseph  W.  Donovan,  Judge. 

BUI  by  Joseph  F.  Weber  against  the  City 
of  Detroit  and  another.  Decree  for  defend- 
ants, and  complainant  appeals.    Reversed. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERT,  McALVAY,  and  BROOKE, 
33. 

Jasper  C  Gates,  for  appellant.  Walter 
Barlow  (P.  J.  M.  Hally,  of  counsel),  for  ap- 
pellees. 

MONTGOMERT,  J.  The  bUl  in  this  case 
was  filed  to  vacate  a  levy  of  a  special  assess- 
ment levied  by  the  authorities  of  the  village 
of  Falrvlew  for  the  costs  and  ezpeuBea  of 
opening  a  portion  of  Taylor  avenue,  in  said 
village.  The  bill  was  originally  filed  against 
the  Tillage  of  Falrvlew,  its  treasurer,  and  the 
present  defendant,  Forbes  Robertson,  county 
treasurer.  After  the  bill  was  filed,  the  vil- 
lage of  Falrvlew  was  annexed  to  the  city  of 
Detroit,  and  the  city  was  substituted  as  de- 
fendant In  place  of  the  village  and  its  treas- 
urer. On  the  hearing  the  circuit  judge  de- 
termined that  the  proceedings  were  irregu- 
lar, but,  apparently  acting  upon  the  author- 
ity of  section  197  of  the  charter  and  laws  of 
the  dty  of  Detroit,  which  provides  that  "no 
special  assessment  or  reassessment  heretofore 
or  hereafter  made  shall  be  vacated,  set  aside 
or  held  Invalid  by  any  court  on  account  of 
any  defect  or  omission  in  the  proceedings 
had  or  taken  In  the  making  of  said  improve- 
ment, or  In  such  assessment  roll,  unless  the 
person  or  persons  complaining  thereof  be  re- 
<inired  to  pay  such  sum  or  sums  as  said  court 
may  find  the  property  assessed  in  said  as- 


sessment roll  shall  have  been  benefited  by 
the  making  of  such  Improvement,"  determin- 
ed the  amount  of  benefit  to  the  property  of 
complainant,  and  entered  a  decree  in  favor 
of  defendant  and  against  complainant  for  the 
amount.  From  this  decree,  complainant  ap- 
peals. 

We  are  not  cited  to  any  section  of  the  law 
which  makes  the  owner  of  the  land  person- 
ally liable  for  an  assessment  of  the  charac- 
ter here  Involved.  If  the  law  annexing  the 
village  of  Falrvlew  to  the  city  of  Detroit 
should  be  given  a  retroactive  effect,  and  the 
attempt  be  made  to  apply  the  curative  sec- 
tion above  quoted,  a  diflBculty  would  be  en- 
countered in  the  Constitution,  as  It  is  beyond 
the  powers  of  the  Legislature  to  create  a  per- 
sonal liability  for  a  claim  of  this  character 
by  retroactive  legislative  enactment.  See 
Mogg  V.  Hall,  83  Mich.  578,  47  N.  W.  553; 
Grand  Rapids  v.  Railroad  Company,  130  Mich. 
238,  89  N.  W.  932,  97  Am.  St  Rep.  473.  It  Is 
open  to  grave  doubt  as  to  whether  the  section 
in  question  can  in  any  case  be  operative.  In 
view  of  the  decision  in  Houseman  v.  Kent  Cir- 
cuit Judge,  68  Mich.  364,  25  N.  W.  369.  It  Is 
obvious  that  the  decree  as  entered  cannot  be 
sustained. 

The  question  as  to  the  relief  to  which  the 
complainant  Is  entitled  Is  one  of  more  dlfi9- 
culty.  The  complainant  attacks  the  condem- 
nation proceedings  by  which  the  city  acquir- 
ed the  street  In  question  upon  several 
grounds.  As  these  proceedings  are  the  basis 
of  the  assessment.  It  becomes  Important  to 
Inquire  whether  fatal  defects  are  shown.  It 
is  first  contended  that  the  verdict  of  the  Jury 
finding  the  necessity  was  given  by  11  Jurors, 
and  that  for  this  reason  the  entire  proceed- 
ing is  void.  The  statute  (Act  No.  176,  p.  237, 
Pub.  Acts  1903)  provides  for  condemnation 
by  a  Jury  of  12.  By  section  12  (Pub.  Acts 
1895,  p.  60,  No.  3,  c.  13,  as  amended  by  Pub. 
Acta  1903,  p.  242,  No.  176)  It  is  provided  that, 
upon  filing  the  verdict  rendered  by  the  Jury, 
same  shall  be  entered  upon  the  docket  of  the 
Justice,  and  that  Judgment  of  confirmation 
shall  be  entered  by  the  justice.  All  parties 
are  required  to  take  notice  of  this  confirma- 
tion, and  the  act  proceeds :  "Any  such  Judg- 
ment of  confirmation  shall  be  final  and  con- 
clusive as  to  all  parties  not  appealing  there- 
from, within  the  time  hereinafter  provided." 
In  the  present  case  no  appeal  was  taken,  and 
it  appears  that  the  award  was  paid  and  ac- 
cepted by  the  parties  interested.  It  must  be 
held  that  the  public  and  those  Interested  in 
the  adversary  proceedings  for  condemnation 
might  waive  the  irregularity  as  to  the  num- 
ber of  Jurors  and  that  they  had  done  so  in 
this  case.  -See  Borgman  v.  Detroit,  102  Mich. 
261,  60  N.  W.  696,  and  Boussneur  v.  Detroit, 
153.  Mich.  685,  117  N.  W.  220. 

It  is  also  contended  that  the  record  shows 
that  17.41  feet  were  taken  from  the  west  side 


•For  other  easw  im  lame  topic  and  lecUon  NUMBER  In  Deo.  *  Am.  Digs.  1907  to  dats,  ft  Reporter  Index«> 


Digitized  by  VjOOQ  l€ 


572 


122  NORTHWESTEBN  RBPOBTBB. 


(Ulcb. 


of  lot  4  and  82.69  feet  from  Qie  easterly  side 
of  lot  5,  and  that  for  this  latter  strip  no  com- 
pensation whatever  was  awarded,  and  that 
this  avoids  the  proceeding.  The  award 
shows  that  the  owners  and  occupants  of  ead> 
of  these  strips  or  parcels  were  identical,  and, 
while  the  compensation  in  the  tabulation  ai>- 
pears  to  have  been  placed  opposite  the  first 
description,  the  Jury  In  terms  find  as  follows : 
"We  find  that  It  Is  necessary  to  take  the  por- 
tions of  lots  4  and  6  as  prayed  for  in  the  pe- 
tition, filed  herein,  and,  as  all  the  respond- 
ents are  interested  in  each  piece  In  the  same 
manner,  way,  and  proportions,  we  have  al- 
lowed to  each  respondent  in  a  lump  sum  all 
the  compensation  each  Is  entitled  to  for  the 
taking  of  the  portions  of  both  of  said  lots  4 
and  5  so  taken  as  aforesaid."  How  the  con- 
tention can  be  seriously  urged  that  there  was 
no  allowance  whatever  for  any  portion  of  lot 
5  taken,  in  view  of  this  finding,  we  are  at  a 
loss  to  understand. 

It  is  next  urged  that  the  assessment  upon 
complainant's  property  was  without  Jurisdic- 
tion, and  numerous  arguments  are  also  urged. 
The  village  of  Fairview  was  incorporated  un- 
der the  general  act  for  the  Incorporation  of 
villages.  1  Comp.  Laws,  c.  87.  It  is  claim- 
ed that  there  was  a  failure  to  comply  with 
section  2834,  which  provides :  "Before  order- 
ing any  public  improvement,  any  part  of  the 
expense  of  which  is  to  be  defrayed  by  special 
assessment,  the  council  shall  cause  estimates 
of  the  expense  thereof  to  be  made,  and  also 
plats  and  diagrams,  when  practicable,  of  the 
work  and  of  the  locality  to  be  improved,  and 
deposit  the  same  with  the  clerk  for  public 
examination;  and  they  shall  give  notice 
thereof  and  of  the  proposed  improvement  or 
work,  and  of  the  district  to  be  assessed  by 
publication  for  two  weeks  a't  least  in  one  of 
the  newspapers  of  the  village,  If  any  be  pub- 
lished therein,"  etc.  It  will  be  noticed  that 
this  section  relates  to  Improvements  to  be  or- 
dered by  the  common  council.  We  think  it 
has  no  reference  to  a  condemnation  for  a 
street  opening  or  other  Improvement  taken 
under  the  authority  of  act  No.  176,  p.  237, 
of  the  Laws  of  1903,  amendatory  of  the  gen- 
eral village  act.  Pub.  Acts  1895,  p.  56,  No. 
3,  c.  13.  Under  this  act,  by  section  3,  it  Is 
provided  that  "whenever  the  council  of  any 
such  village  shall  have  declared  a  public  im- 
provement to  be  necessary  in  the  village,  and 
shall  have  declared  that  they  deem  it  neces- 
sary to  take  private  property,  describing  It, 
for  public  Improvement,"  etc.,  proceedings 
may  be  instituted  to  have  the  question  of 
necessity  determined  by  a  Jury.  Section  81 
of  this  act  provides :  "After  the  recording  by 
the  village  clerk  of  the  final  judgment  and 
verdict  as  provided  in  the  last  preceding  sec- 
tion the  proper  and  necessary  proceedings  In 
due  course  may  be  taken  by  the  Tillage  coun- 
cil for  the  collection  of  the  sum  or  sums 
awarded  by  the  Jury.  If  the  council  believe 
that  a  portion  of  the  village  in  the  vicinity 
tf  the  proposed  improvement  will  be  bene- 


fited by  such  Improvonent,  thejr  may,  by  an 
entry  in  their  minutes,  determine  that  the 
whole  or  any  Just  proportion  of  the  compen- 
sation awarded  by  the  Jury,  and  of  the  costs 
and  expenses  incurred  in  connection  with  the 
proceedings,  shall  be  assessed  upon  the  own- 
ers or  occupants  of  real  estate  deemed  to  be 
thus  benefited,  and  thereupon  they  shall,  by 
resolution,  fix  and  determine  the  district  or 
portion  of  Hxe  village  benefited,  and  specify 
the  amount  to  be  assessed  upon  the  owners 
or  occupants  of  the  taxable  real  estate  there- 
in. ♦•♦"  It  then  provides  that  the 
"amount  of  the  benefit  thus  ascertained  shall 
be  assessed  upon  the  owners  or  occupants  of 
such  taxable  real  estate,  in  proportion,  as 
nearly  as  may  be,  to  the  advantage  which, 
each  such  lot,  parcel  or  subdivision  is  deem- 
ed to  acquire  by  the  improvement,"  and  that 
the  "assessment  shall  be  made  and  the 
amount  levied  and  collected  in  the  same  man- 
ner and  by  the  same  oflScers  and  proceedings, 
as  near  as  may  be,  provided  in  and  1)y  the 
act"  for  the  incorporation  of  villages.  It  is 
apparent  that  the  legislative  intent  was  that 
the  district  should  be  fixed  by  the  common 
council,  not  under  section  2834,  before  order- 
ing any  public  Improvement,  but  after  the 
improvement  had  been  determined  upon  and 
the  condemnation  had  under  the  provisions 
of  the  act  of  1903.  No  notice  of  the  fixing 
of  the  assessment  district  is  required,  font  no- 
tice of  the  filing  of  the  assessment  roll  was 
required,  and  this  appears  to  have  been  given. 
It  appears  that  through  a  clerical  error  the 
assessment  district  as  fixed  by  the  council 
was  not  identical  with  that  adopted  by  the 
board  of  assessors ;  that  by  some  clerical  er- 
ror a  portion  of  one  of  the  pieces  of  proper- 
ty involved  in  this  litigation  was  excluded 
from  the  assessment  district,  but  it  was  in- 
cluded in  the  assessment  by  the  assessors. 
We  need  not  determine  whether  the  assess- 
ment roll,  if  a  full  compliance  with  the  law, 
would  have  cured  this  defect,  as  we  are  con- 
strained to  hold  that  the  assessment  roll  it- 
self was  Jurlsdlctionally  defective.  As  above 
stated,  the  law  of  1903  required  that  the  as- 
sessment should  be  made  and  the  amount  lev- 
ied and  collected  in  the  same  manner  and  by 
the  same  ofScers  and  proceedings,  as  near 
as  may  be,  as  provided  in  the  general  village 
act.  This  act  provides:  "When  any  special 
assessment  is  to  be  made  pro  rata  upon  the 
lots  and  premises  In  any  special  district,  ac- 
cording to  the  frontage  or  benefits,  the  coun- 
cil shall  by  resolution,  direct  the  same  to  be 
made  by  the  board  of  assessors,  and  shall 
state  therein  the  amount  to  be  assessed,  and 
whether  according  to  frontage  or  benefits, 
and  describe  or  designate  the  lots  and  prem- 
ises, or  locality  constituting  the  district  to  be 
assessed.  Upon  receiving  such  order  and  di- 
rections, the  board  of  assessors  shall  make 
out  an  assessment  roll,  entering  and  describ- 
ing therein  all  the  lots,  premises,  and  parcels 
of  land  to  be  assessed,  and  the  valuation 
thereof  with  the  names  of  the  persons,  If 


Digitized  by  VjOOQ  IC 


Iowa) 


GRAHAM  V.  CHICAGO  &  N.  W.  RT.  CO. 


673 


known,  diargeable  with  the  assessments 
thereon.  *  •  • "  section  7.  In  the  pres- 
ent case  no  yaloation  of  the  lands  assessed 
against  the  complainant  was  made.  Upon  the 
authority  of  our  own  cases  It  must  be  held 
that  this  defect  rendered  the  assessment  Told. 
See  Steckert  t.  East  Saginaw,  22  Mich.  104; 
Bledler  Mfg.  Co.  t.  Muskegon,  63  Mich.  44, 
29  N.  W.  678;  and  Walker  v.  Ann  Arbor, 
118  Mich.  251,  76  N.  W.  394. 

It  follows  that  the  complainant  is  entitled 
to  relief  from  this  assessment;  bnt,  as  It  is 
apparent  that  his  property  has  had  some  ben- 
efit, that  relief  should  not  preclude  the  au- 
thorities from  making  a  proper  reassessment. 
We  do  not  feel  ourselves  authorized  to  deter- 
mine the  amount  to  which  this  property  is 
subject  to  assessment;  but  a  decree  will  be 
entered  granting  the  relief  prayed,  but  with- 
out prejudice  ta  any  new  proceedings  which 
may  be  taken  to  reassess  for  the  benefits 
which  the  complainant's  property  has  receiv- 
ed by  this  imprevement. 

Complainant  will  recover  costs. 


GRAHAM  V.  CHICAGO  &  N.  W.  RY.  CO 
(Supreme  Conrt  of  Iowa.     Sept.  28,  1009.) 

1.  Appeal  awd  Ebbob  (g  1062»)— Pleadino— 
Inconsistent  Causes  op  Action  — With- 
DBAWAL  or  Count— Pbejtjdice. 

Where  two  counts  of  plaintitTs  petition 
were  inconsistent,  and  the  establishment  of  one 
necessarily  negatived  the  other,  the  court's  with- 
drawal of  the  second  count  from  the  jury  was 
not  prejudicial  to  plaintiff;  the  jury  having 
found  In  his  favor  on  the  counts  submitted  to 
them. 

[E<d.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  <  4214;  Dec.  Dig.  S  1062.*] 

2.  Tbial  (8  349*)- Speciai,  Finoings-Inoon- 
8I8TENT  Causes  of  Action. 

A  trial  court  should  not  submit  plaintiff's 
case  in  the  alternative  on  inconsistent  causes  of 
action  alleged  without  requirine  a  special  find- 
ing, indicating  on  which  ground  the  verdict  for 
plaintiff  was  rendered. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  I  823 ;   Dec.  Dig.  {  349.*] 

S.  Tbial  (S  145*)- WiTnoRAWAL  of  Issues- 
Inconsistent  Causes  of  Action. 

Where  the  only  evidence  offered  by  plaintiff 
in  support  of  two  inconsistent  charges  of  neg- 
ligence was  that  of  H.,  whose  evidence  directly 
contradicted  the  essential  fact  on  which  the 
charge  of  negligence  in  the  second  canse  of  ac- 
tion was  based,  the  court,  having  permitted  such 
canse  of  action  to  be  added  by  amendment,  had 
power  to  refuse  to  submit  it  to  the  jury  and 
strike  it  from  the  files. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  {  328;    Dec.  Dig.  g  145.*] 

4.  Appeai,  Awn  Ebbob  (J   1097*)— Decision 
ON  FoBiiEB  ApPEAii— Law  of  TnB  Case. 
Decisions  by  the  Supreme  Court  on  prior 

appeals  are  the  law  of  the  case  so  far  as  the 

questions  decided  are  concerned. 
[Ed.  Note.— For  other  cases,  see  Appeal  and 

Error,  Cent.  Dig.  g  4358 ;   Dec.  Dig.  g  1097.*] 

Appeal  from  District  Conrt,  Monroe  Coun- 
ty;   D.  M.  Anderson,  Judge. 


Supplemental  opinion  on  rehearing.  Af- 
firmed on  plaintiff's  cross-appeal  and  revera- 
ed  on  defendant's  appeal. 

J.  C.  Mabry,  A.  A.  McLaughlin,  and  J.  C. 
Davis,  for  O.  A  N.  W.  Ry.  Co.  Chester  W. 
Whltmore  and  N.  E.  Kendall,  for  Graham. 

EVANS.  C.  J.  The  original  opinion  can  be 
found  in  119  N.  W.  70a  The  plaintiff  calls 
our  attention  to  the  fact  that  in  such  opinion 
we  did  not  formally  rule  upon  his  cross-ap- 
peal. What  we  did  say  was  necessarily  de- 
terminative of  the  cross-appeal  adversely 
to  the  plaintiff.  The  plaintiff  urges  upon  us 
a  reconsideration  of  our  former  opinion  in 
so  far  as  its  conclusions  are  fatal  to  his 
cross-appeal.  His  argument  Is  that  upon  the 
testimony  of  Newgren  and  Brundage  and 
Wright  alone,  disregarding  wholly  the  evi- 
dence of  Hooyer,  he  was  entitled  to  go  to 
the  jury  on  the  theory  that  Graham  was 
on  the  steps  of  the  second  or  third  car  from 
the  engine,  and  that  Brundage  saw  him  there. 
This  is  based  (1)  upon  the  testimony  of 
Brundage  that  he  and  Wright  went  through 
the  vestibules  of  the  three  sleepers,  looking 
for  trespassers,  and  discovered  none;  (2)  up-  * 
on  the  testimony  of  Newgren  as  to  where  he 
thought  Graham  was;  and  (3)  upon  the  in- 
ference which  the  jury  might  draw  that 
Brundage  did  see  Graham  on  the  second  or 
third  car  from  the  engine,  notwithstanding , 
his  denial.  The  testimony  of  Newgren  upon 
which  such  reliance  Is  placed  Is  his  following 
cross-examination :  "Q.  What  car  did  you 
say  Roy  Graham  boarded  as  the  train  pulled 
out  of  Oakley  avenue?  A.  I  think  about  the 
second  or  third  car  from  the  front,  from 
the  engine.  Q.  That  would  be  the  first  or 
second  sleeper  on  the  train?  A.  I  don't 
know  how  the  train  was  made  up.  Q.  If  the 
train  was  organized  with  a  buffet  car  and 
three  sleepers,  It  would  be  the  first  or  second 
sleeper  that  he  got  on?  A.  Yes,  sir.  Q.  You 
are  sure  of  that,  are  you?  A.  That  is  as 
near  as  I  know.  Q.  You  testify  to  that  as 
a  fact?  A.  Yes,  sir.  Q.  And  you  are  posi- 
tive of  that  as  you  are  of  everything  that 
you  have  testified  to?  A.  Yes,  sir.  Q.  That 
as  you  boarded  the  train  that  evening  Roy 
Graham  was  on  the  second  or  third  car  from 
the  engine?  A.  To  the  best  of  my  judgment. 
Q.  That  would  be  the  first  or  second  sleeper 
In  the  train?  A.  Yes,  sir."  Newgren  had 
testified  on  direct  examination,  not  only  that 
Graham  was  on  the  second  or  third  car  from 
the  engine,  as  he  believed,  but  that  there 
were  three  cars  between  him  and  Hooyer 
and  Newgren.  Hooyer's  testimony  was  that 
there  was  one  car  only  between  them. 
This  would  put  Graham  on  the  front  end  of 
the  seventh  car  of  the  train.  Plaintiff's  peti- 
tion expressly  alleged  that  Graham  was  on 
"the  forward  end  of  the  seventh  car  from 
the  head  end  In  said  train."    He  never  re- 


•For  otlisr  caMS  sea  same  topic  and  ««ctlon  NUMBER  In  Dec.  &  Am.  Dies.  1907  to  date,  &  Reporter  Indexea 


Digitized  by 


L-oogle 


574 


122  NORTBTVOJSTBBN  RKPORTEB. 


(Iowa 


ceded  from  that  allegation.  The  allegation 
was  sitpported  by  Hooyer's  testimony  and 
the  case  tried  upon  that  theory.  During  the 
trial,  however,  and  after  the  evidence  had 
been  heard,  the  plaintiff  added  to  his  petition 
an  additional  count  wherein  he  alleged  that 
Graham  was  on  the  second  or  third  car,  and 
that  Brundage  saw  him  there,  and  that  Brun- 
dage  was  negligent  in  not  attempting  to 
rescue  blm.  This  count  did  not  purport  to 
withdraw  or  qualify  any  allegation  contained 
in  the  former  count  It  was  apparently  In- 
tended to  state  an  alternative  case  of  negli- 
gence as  a  basis  for  recovery,  so  that,  if 
be  failed  in  hl^  proofs  upon  the  original 
count,  he  might  still  recover  upon  the  addi- 
tional count  on  the  theory  that  Brundage  was 
negligent.  The  two  were  inconsistent,  and 
the  establishment  of  one  necessarily  nega- 
tived the  other. 

Whether  the  plaintiff  was  entitled  to  have 
them  both  submitted  to  the  jury  in  the  al- 
ternative, or  whether  the  court  could  and 
should  have  required  him  to  elect,  at  the  dose 
of  the  evidence,  upon  which  count  he  pro- 
posed to  stand,  we  need  not  now  determine. 
•  The  court  did  withdraw  from  the  considera- 
tion of  the  jury  the  charge  of  negligence 
made  in  the  additional  count  against  Brun- 
dage, and  submitted  the  case  as  made  by  the 
original  count  of  the  petition.  If  the  jury 
had  found  adversely  to  the  plaintiff  upon 
'  this  count,  he  might  be  in  a  position  to  say 
that  he  was  hurt  by  the  refusal  of  the  court 
to  submit  the  other  count,  and  that  the  jury 
might  have  returned  a  verdict  in  his  favor  up- 
on that  count  But  the  jury  found  in  his 
favor  upon  the  original  count  The  finding 
of  the  jury  sustaining  that  charge  of  negli- 
gence was  equivalent  to  a  negative  finding 
on  the  other.  Both  could  not  be  true.  In 
rendering  a  verdict  for  the  plaintiff  on  the 
case  as  submitted  to  it  by  the  instructions  of 
the  court  the  jury  necessarily  found  that 
Graham  was  at  the  front  end  of  the  seventh 
car.  They  found,  therefore,  that  he  was  not 
on  the  second  or  third  car,  Brundage,  there- 
fore, could  not  have  been  found  guilty  of  neg- 
ligence upon  such  finding,  even  though  the 
court  had  submitted  the  issue  of  his  neg- 
ligence to  the  jury  in  the  alternative. 

Plaintiff  argues  on  the  theory  that  the  jury 
had  no  chance  to  pass  upon  Newgren's  tesi- 
mony  in  cross-examination,  and  that  they 
might  have  found  upon  such  testimony  that 
Graham  was  on  the  second  or  third  car, 
instead  of  on  the  seventli.  But  the  court  did 
not  withdraw  such  issue  from  the  jury.  It 
only  withdrew  from  the  jury  the  question 
of  the  alleged  negligence  of  Brundage.  The 
issue  of  whether  Graham  was  on  the  front 
end  of  the  seventh  car  or  whether  he  was 
two  or  more  cars  further  ahead  inhered  in 
the  case  as  made  by  the  original  count,  and 
as  submitted  to  the  jury  by  the  court  The 
jury   bad   the   testimony   of   Newgren   and 


Hooyer  on  that  question.  The  burden  was 
upon  the  plaintiff  to  prove  upon  what  part 
of  the  train  Graham  was.  Unless  it  was- 
proved  that  he  was  on  the  front  end  of  tbe- 
seventh  car,  plaintiff  had  no  case  under  the 
original  count  Newgren  testified  tq  his 
judgment  that  he  was  further  forward  in  the 
train.  If  the  jury  had  accepted  the  testi- 
mony of  Newgren  In  this  respect,  it  would 
have  been  fatal  to  plaintiff's  original  count 
The  verdict  of  the  jury  was  therefore  equiva- 
lent to  a  finding  on  this  specific  fact.  With 
this  finding  of  fact  the  charge  of  negligence- 
against  Brundage  necessarily  went  down, 
and  the  plaintiff  suffered  no  prejudice  by  the 
failure  of  the  court  to  formally  submit  to  the 
jury  the  question  of  such  negligence  on  the 
part  of  Brundage.  Assumhig  for  the  sake 
of  the  argument  that  the  trial  court  could 
properly  have  submitted  plaintUTs  case  la 
the  alternative  upon  inconsistent  allegatlaaa, 
surely  no  trial  court  would  have  done  Do- 
without  requiring  a  special  finding  indica- 
ting upon  which  gn^und  the  verdict  for  plain- 
tiff was  rendered.  Plaintiff's  position  on 
this  record  is  precisely  the  same  as  though 
such  course  had  been  followed.  It  is  mani- 
fest, therefore,  that  even  if  the  court  erred 
in  withdrawing  the  additional  count  from  the 
jury,  the  error  was  cured  by  a  favorable  ver- 
dict upon  the  original  count 
.  2.  We  may  say  further  that  in  our  opin- 
ion the  trial  court  did  not  err  in  withdraw- 
ing the  additional  count  from  the  jury.  We 
must  review  the  action  of  the  trial  court  In 
the  light  of  the  whole  record  before  it,  in- 
cluding the  evidence  of  Hooyer,  which  baa 
been  considered  by  us  in  the  original  opin- 
ion. The  plaintiff's  argument  on  rehearing 
is  based  upon  the  supposition  that  the  evi- 
dence of  Hooyer  has  been  wholly  obliterated 
by  the  conclusions  announced  by  us  in  the 
former  opinion.  We  are  aslced,  therefore,  to 
disregard  It  In  toto,  and  to  consider  the  case 
solely  in  the  light  of  the  testimony  of  New- 
gren, Brundage,  and  Wright  The  part  of 
the  evidence  of  Hooyer  that  was  bdd  to  be 
impossible  in  the  former  opinion  was  ttaat 
part  thereof  wherein  be  claimed  to  have  sera 
Graham  through  the  vestibule  door  at  the 
front  end  of  the  seventh  car,  although  he 
made  no  attempt  to  rescue  him  nor  to  com- 
municate the  fact  to  the  others  who  were 
with  him,  but  went  forward  with  the  con- 
ductor to  the  front  end  of  the  sixth  car 
for  the  purpose  of  rescuing  him  there.  The 
plaintiff,  however,  is  not  entitled  to  have 
his  evidence  disregarded  in  toto,  nor  was  be 
In  a  position  to  ask  the  trial  court  to  disre- 
gard such  testimony  either  in  whole  or  in 
part.  The  only  evidence  offered  by  plain- 
tiff In  support  of  either  charge  of  negligence 
was  that  of  Hooyer.  This  evidence  directly 
contradicted  the  essential  fact  upon  which 
the  charge  of  negligence  in  the  additional 
count  was  based.  Clearly  the  court  had 
power  of  discretion  to  refuse  to  permit  such 


Digitized  by  VjOOQIC 


Iowa). 


J.  L  CASE  THRESHING  HAOH.  CX>.  ▼.  FISHEK  Sb  ANBT. 


576 


an  amendment  to  be  filed,  and  It  had  like 
power  to  strike  the  amendment  after  it  was 
filed.  Whether  the  court  could  properly 
submit  in  the  alternative  two  contradictory 
dalms  or  theories  in  behalf  of  a' party  hav- 
ing the  burden  of  proof  we  do  not  now  deter- 
mine. It  Is  clear  to  us  that  it  was  not  bound 
to  do  so.  It  may  be  that  Its  refusal  to  do 
so  would  entitle  the  plaintiff  to  an  election 
as  to  which  ground  he  would  stand  upon, 
but  there  was  no  offer  or  suggestion  of  an 
election  in  this  case.  In  overruling  defend- 
ant's motion  for  a  directed  verdict,  the  court 
announced  that  it  would  not  submit  to  the 
Jury  the  issue  presented  by  the  amendment 
To  this  announcement  the  plaintiff  excepted. 
In  its  instructions  later  the  court  withdrew 
from  the  Jury  the  charge  of  negligence 
against  the  brakeman,  Brundage.  No  excep- 
tion was  taken  to  this  instruction  by  the 
plaintiff.  It  may  be  that  the  announcement 
of  the  court  ought  to  be  regarded  as  sustain- 
ing defendant's  motion  to  that  extent,  and 
that  an  exception  at  that  point  was  sufficient 
In  any  event,  we  have  assumed  the  ex- 
ception to  be  sufficient  for  the  purpose  of  his 
appeaL  It  Is  evident,  however,  that,  if 
plaintiff  preferred  to  submit  the  case  to  the 
Jury  upon  the  other  theory,  he  bad  abundant 
opportunity  to  so  elect  He  took  a  submis- 
sion of  his  case  upon  the  original  count,  and 
his  position  is  quite  the  same  under  the  cir- 
cnmstances'  of  this  case  as  though  he  had 
formally  elected  to  stand  thereon.  From 
the  verdict  rendered  It  is  manifest  that  he 
must  have  been  beaten  by  the  Jury.U  the 
case  had  been  submitted  upon  the  other  the- 
ory. So  that,  if  we  should  assume  the  cor- 
rectness of  plaintiff's  contention  that  there 
was  sufficient  evidence  to  go  to  the  Jury  in 
the  testimony  of  Brundage  and  Wright  and 
Newgren  alone.  It  could  avail  him  nothing 
In  the  face  of  the  actual  finding  of  the  Jury. 

In  this  discussion  we  have  confined  our- 
selves to  a  consideration  of  the  case  as  it 
was  before  the  trial  court.  Plaintiff's  argu- 
ment on  rehearing  is  somewhat  .anticipatory, 
and  la  directed  to  a  supposed  situation  which 
may  arise  in  the  future.  We  cannot  follow 
the  argument  into  that  field.  Whether  It  is 
possible  for  the  plaintiff  to  recast  his  Issues 
and  his  evidence  for  a  future  trial  Is  a  spec- 
ulation into  which  we  cannot  properly  enter. 
Certain  It  Is  that  the  questions  already  de- 
cided by  this  court  in  the  opinions  on  the 
two  appeals  mast  be  deemed  as  the  law  of 
the  case  for  all  time  so  far  as  those  ques- 
tions are  concerned. 

The  former  opinion  Is  adhered  to  with  this 
modification:  That  it  is  now  formally  or- 
dered that  the  case  be  affirmed  on  the  plain- 
tiff's cross-appeal,  and  reversed  on  defend- 
anf  a  appeaL 

Reversed  and  remanded. 


J.  L  CASE  THRESHING  MACH.  CO.  v. 
FISHER  &  ANBT. 

(Supreme  Court  of  Iowa.    Sept  29,  1909.) 

1,  Contracts  (|  113*)— Inducing  Breach  of 
Confidential  Relations. 

Defendants  sold  stacking  machinery  on  com- 
mission for  both  plamtiff  and  the  R.  Company, 
who  were  both  bound  under  patent  licenses  not 
to  sell  the  machines  for  less  than  a  specified 
price.  Defendants  claimed  to  plaintiff's  agent 
that  they  could  pixxnire  machines  from  the  R. 
Company  on  more  favorable  terms  than  from 
plaintiff,  whereupon  plaintiff's  agent  agreed  to 
allow  defendants  additional  commissions  if  de- 
fendants could  procure  evidence  that  the  R. 
Company  was  selling  at  a  lower  price  and  fur- 
ther agreed  to  pay  defendants  (1,000  for  evi- 
dence of  the  R.  Company's  breach  of  its  li- 
cense. Defendants  thereafter  procured  the  evi- 
dence, and  turned  it  over  to  plaintiffs  agent. 
Held,  that  defendants  occupied  no  position  of 
trust  or  confidence  to  the  R.  Company,  and  that 
such  contract  was  not  illegal  as  a  breach  of 
confidential  relationa 

[Ed.   Note.— For  other  cases,   see  Contracts, 
Cent.  Dig.  S  527 ;   Dec  Dig.  S  113.»] 

2.  Witnesses  (J  196*)— Confidentiai.  Rela- 
tions—Pbincipai.  AND  Agent. 

An  agent  selling  farm  machinery  on  com- 
mission  for  a  manufacturer  could  be  compelled 
to  testify  as  to  his  arrangement  with  his  princi- 
pal relating  to  the  terms  on  which  be  procured 
and  sold  the  machinery,  to  show  that  the  manu- 
facturer was  selling  it  in  violation  of  a  patent 
license  prohibiting,  under  penalty,  the  sale  of 
machines  at  less  than  specified  prices. 

[Ed.   Note. — For  other  cases,   see  Witnesses, 
Cent.  Dig.  |  744;    Dec  Dig.  i  196.*] 
8.  Contracts  (J  113«)  —  Interfebencb  with 

EUPLOTUENT— LeOALITT. 

Where  defendants  sold  stackers  on  commis- 
sion for  both  plaintiff  and  the  R.  Company,  and, 
on  informing  piaintifTs  agent  that  they  were 
able  to  get  better  terms  from  the  R.  Company, 
plaintiff  in  consideration  of  defendants'  furnish- 
ing proof  of  such  fact  agreed  to  add  a  further 
commission  to  defendants'  business  already  done 
for  it  as  an  inducement  to  defendonts  to  aban- 
don further  relations  with  the  R.  Company,  such 
agreement  was  not  illegal,  since,  even  had  there 
been  an  exclusive  agency  between  defendants 
and  the  R.  Company,  plaintiff  could  negotiate 
for  its  abandonment  without  legal  wrong. 

[Ed.   Note.— For  other  oases,   see  Contracts, 
Cent.  Dig.  I  627;   Dec  Dig.  {  113.»] 

4.  Contracts  (§  113*);— Inducino  Breach. 

Where  a  contract  is  by  its  terms  or  nature 
terminable,  there  is  no  wrong  in  offering  induce- 
ments to  a  party  to  terminate  it  in  the  interest 
of  the  person  offering  such  indacements. 

[Ed.   Note.— For  other   cases,   see   Contracts, 
Cent  Dig.  {  627;   Dec  Dig.  t  113.*] 

6.  Contracts    (8    129*)  —  Subject-Matter — 

Pbocurino  Testiuont. 

A  contract  to  pay  defendants  to  procare 
evidence  of  another's  breach  of  contract  regulat- 
ing the  sale  of  farm  machinery  without  refer- 
ence to  the  outcome  of  a  suit  in  which  the  evi- 
dence was  to  be  used  was  not  illegal. 

[Ed.   Note.— For  other  cases,   see  Contracts, 
Cent  Dig.  i  617;   Dec  Dig.  i  129.*] 

6.  Evidence  ({  241*)— AoiassioNS  of  Agent 
— Scope  of  Authority. 

Declarations  of  an  agent  still  in  plaintiff's 
employ  to  another  of  plaintiff's  officers  or  agents 
as  to  his  efforts  to  procure  from  defendants  a 
contract  between  defendants  and  another  com- 
pany  relating  to  the  sale  of  farm  machinery 


•For  otbar  cams  sm  aam*  topic  and  section  NUMBBR  m  Dae.  4k  Am,  Digs.  U07  to  data,  ft  Baportor  Indoxei 


Digitized  by 


Google 


576 


122  NORTHWESTBBN  BEPOBTEB. 


(Iowa 


within  the  scope  of  the  ati^ent's  authority  was 
admissible  against  plaintiff. 

[Ed.    Note.— For   other   cases,    see   Evidence, 
Cent.  Dig.  S  887;    Dec.  Dig.  I  241.»] 

7.  Trial  (§  351*)  —  Speciai.  Verdict  — Rk- 

QDEST. 

Where  no  special  verdict  was  requested  as 
to  each  of  several  items  of  counterclaim  alleg- 
ed, the  court  did  not  err  in  submitting  such 
items  for  a  single  verdict. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  i  837;   Dec.  Dig.  i  351.»] 

8.  New  Trial  (g  9*)- Several  Items— Gen- 
eral Verdict. 

Where  a  counterclaim  alleged  several  items 
and  a  general  verdict  was  returned,  the  court 
did  not  err  in  granting  a  new  trial  as  to  one 
item,  and  deducting  the  amount  thereof  from 
the  general  verdict  in  which  the  item  had  been 
included. 

[Ed.  Note.— For  other  cases,  see  New  Trial, 
Cent.  Dig.  t  12 ;  Dec.  Dig.  S  »••] 

9.  Compromise  and  Settlement  (8  2*)— Ex- 
ecution or  Notes— Intent. 

Notes  given  for  specific  items  of  indebted- 
ness in  the  usual  coarse  of  dealings  between  the 
parties  not  intended  as  settlements  in  full  of 
account  did  not  constitute  an  adjustment  of  all 
claims  between  the  parties. 

[Ed.  Note.— For  other  cases,  see  Compromise 
and  Settlement,  Cent  Dig.  Sg  1-4;    Dec.  Dig. 

10.  Appeal  and  Error  (§  933*)— New  Trial 
—Presumptions. 

There  is  a  strong  presumption  on  appeal 
in  favor  of  the  correctness  of  an  order  granting 
a  new  trial. 

[EM.  Note.— For  other  cases,  see  Appoal  and 
Error,  Cent  Dig.  (  8772;  Dec.  Dig.  S  033.*] 

Appeal  from  District  Court,  Polk  County; 
Jesse  A.  Miller,  Judge. 

Action  on  promissory  notes.  Counter- 
claims for  commissions  on  the  sale  of  ma- 
chines for  plaintiff  and  for  money  agreed  to 
be  paid.  There  was  no  defense  to  the  notes, 
but  on  the  counterclaims  there  was  a  trial 
to  a  Jury  and  verdict  In  defendants'  favor 
for  $950.44.  The  court  sustained  plaintiff's 
motion  for  new  trial  so  far  as  It  applied  to 
one  of  the  items  of  counterclaim,  and  ren- 
dered Judgment  in  defendants'  favor  for 
$577.27.  Plaintiff  appeals  from  this  Judg- 
ment, and  defendants  appeal  from  the  ruling 
granting  a  new  trial  as  to  the  one  Item  of 
counterclaim.  Plaintiff,  having  first  appeal- 
ed, will  be  designated  tbe  appellant  Af- 
firmed. 

Guernsey,  Parker  &  Miller  and  Carey,  Up- 
ham  &  Black,  for  appellant  Read  &  Read, 
for  appellees. 

McCLAIN,  J.  Issues  as  to  the  three  sepa- 
rate counterclaims  were  submitted  to  the 
Jury,  and  the  only  questions  presented  on 
the  appeals  relate  to  the  submission  and  de- 
termination of  these  Issues.  The  facts  which 
were  without  dispute  were  that  from  1900  to 
the  time  of  bringing  suit  defendants  were 
local  agents  for  plaintiff  at  Underwood  for 
the  sale  on  commission  of  wind  stackers  man- 
ufactured by  plaintiff.     Defendants  were  at 


the  same  time  engaged  In  selling  on  com- 
mission for  the  Russell  Wind  Stacker  Com- 
pany similar  maditnes.  Both  plaintiff  and 
the  Russell  Company  were  manufacturing 
these  machines  under  lic^ises  from  the  In- 
diana Manufacturing  Company,  and  were 
bound  under  penalty  not  to  sell  for  less  than 
a  specified  price.  Defendants  made  to  plain- 
tiff's agent  the  claim  that  they  could  procure 
wind  stackers  from  the  Russell  Company  on 
more  favorable  terms  than  those  given  them 
by  plaintiff  for  tbe  sale  of  similar  machines 
of  plaintiff's  manufacture.  The  facts  In  dis- 
pute were  as  to  whether  plaintiff  agreed 
to  allow  defendants  additional  commissions 
for  machines  of  plaintiff  sold  during  1900  and 
1901,  if  defendants  could  procure  evidence 
that  tbe  Russell  Company  were  selling  simi- 
lar machines  at  a  lower  price,  and  further 
agreed  at  a  subsequent  time  to  pay  defend- 
ants $1,000  for  evidence  that  the  Russell 
Company  was  selling  such  machines  on  bet- 
ter terms  than  those  on  which  the  machines 
could  l>e  sold  by  the  plaintiff  under  its  li- 
cense from  the  Indiana  Company. 

1.  Tbe  significance  of  the  alleged  contracts 
to  allow  defendants  additional  commissions 
and  pay  them  a  further  sum  of  money  if 
defendants  could  procure  evidence  that  the 
Russell  Company  was  selling  wind  stackers 
covered  by  the  patent  owned  by  the  Indiana 
Company  will  be  understood  when  it  is  stat- 
ed that  the  plaintiff  company  was  engaged 
in  litigation  with  tbe  Indiana  Company  In 
which  it  was  important  to  plaintiff  to  show- 
that  the  Russell  Company  was  violating  its 
contract  with  tbe  Indiana  Company  to  sell 
such  machines  on  tbe  same  terms  as  tbose 
provided  for  in  the  license  from  the  Indiana 
Company  to  plaintiff.  Tlie  plaintiff  as  ap- 
pellant contends  that  the  alleged  oral  agree- 
ments above  referred  to  were  void  because 
they  contemplated  a  fraud  to  be  committed 
by  defendants  towards  the  Russell  Company, 
and  a  breach  of  trust  between  them  existing 
by  virtue  of  tbe  confidential  relations  of 
principal  and  agent,  also,  because  they  con- 
templated and  provided  for  a  breach  of  con- 
tract between  defendants  and  the  Russell 
Company,  and  because  they  amounted  to  a 
conspiracy  between  defendants  and  plaintiff 
to  bring  about  a  breach  of  such  contract  and 
the  contract  l)etween  the  Russell  Company 
and  tbe  Indiana  Company.  It  is  further  con- 
tended that  these  contracts  relied  on  by  de- 
fendants were  Illegal,  in  that  they  contem- 
plated the  procurement  of  evidence  to  be 
used  by  plaintiff  In  its  suit  against  the  In- 
diana Company.  The  evidence  does  not  show, 
however,  what  the  contract  relations  be- 
tween defendants  and  the  Russell  Company 
were  further  than  that  defendants  called 
themselves  agents  for  the  sale  of  machines 
for  the  Russell  Company,  and  as  such  agents 
ordered  a  machine  for  sale  on  commission, 
agreeing  to  pay  therefor,   which  order,  ac- 


•For  other  caiei  see  same  topic  and  lecUon  NUMBER  in  Dec.  ft  Am.  Digs.  U07  to  datt,  *  Reportsr  Indoxea 


Digitized  by  LjOOQ  l€ 


Iowa) 


J.  L  CASE  THRESHING  MACH.  CO.  v.  FISHER  &  ANBT, 


677 


cepted  by  the  Rnsaell  Company,  was  turned 
over  to  the  agent  of  plaintiff.  These  facts 
do  not  establish  the  breach  of  any  confiden- 
tial relations.  There  Is  no  magic  In  the 
mere  name  of  accent  A  commission  mer- 
chant is  an  agent,  but  be  does  not  neces- 
sarily occupy  a  position  of  trust  and  confi- 
dence to  his  principal.  His  obligation  may 
be  simply  to  act  in  good  faith  with  reference 
to  disposing  of  the  property  of  his  principal, 
and  making  payment  therefor.  There  is  no 
evidence  that  the  Russell  Company  was  to 
be  cheated  out  of  Its  property,  nor  that  the 
price  at  which  it  could  be  sold  was  made 
confidential  as  a  condition  precedent  to  the 
making  of  the  contract  Had  defendants 
been  subpoenaed  as  witnesses  In  the  suit  be- 
tween the  plaintiff  and  the  Indiana  Company, 
they  could  without  question  have  been  requir- 
ed to  testify  as  to  their  arrangement  with 
the  Rnssell  Company,  and  we  fail  to  see 
any  good  reason  why  they  could  not  proper- 
ly furnish  the  plaintiff  the  written  evidence 
as  to  such  arrangement.  There  was  no 
fraud  necessarily  Involved  in  dickering  for 
the  best  terms  to  be  procured,  nor  in  mak- 
ing ase  of  the  terms  secured  in  getting  better 
terms  from  plaintiff.  If,  then,  the  plaintiff, 
on  being  satisfied  that  defendants  were  able 
to  get  better  terms  from  the  Russell  Com- 
pany than  It  was  offering,  saw  fit  to  add  a 
further  commission  on  business  already  done 
for  it  by  defendants  as  an  Inducement  to 
them  to  abandon  further  relations  with  the 
Russell  Company,  there  was  nothing  illegal 
in  doing  so.  It  does  not  appear  that  defend- 
ants had  agreed  to  act  exclusively  as  agents 
for  the  Russell  Company  in  the  sale  of  wind 
stackers;  but,  even  If  there  was  such  ex- 
clusive agency,  the  plaintiff  might  negotiate 
for  its  abandonment  without  legal  wrong. 

The  suggestion  of  illegality  In  an  attempt 
to  Induce  the  Russell  Company  to  violate  its 
contract  with  the  Indiana  Company  Is  whol- 
ly without  force  as  to  defendants'  conduct, 
for  it  does  not  appear  that  they  had  any 
knowledge  of  the  terms  of  such  contract. 
So  far  as  appears,  they  may  properly  have 
assumed  that  the  plaintiff  and  the  Russell 
Company  were  at  liberty  to  compete  as  to 
the  terms  on  which  they  would  sell  stackers, 
and  take  advantage  of  such  competition. 
The  many  authorities  cited  by  counsel  as  to 
the  good  faith  required  from  agents  occu- 
pying a  relation  of  trust  and  confidence  to- 
ward their  principals  need  not  be  specifically 
referred  to.  They  announce  well-recognized 
principles  of  law  which  as  we  think  are 
without  application  to  the  facts  of  this  case. 
Equally  without  application  to  this  case  are 
the  authorities  cited  to  the  effect  that  it  is 
a  legal  wrong  to  conspire  In  an  attempt  to 
Induce  another  to  breach  his  contract.  If 
the  contract  is  one  by  Its  terms  or  in  its  na- 
ture terminable,  there  is  no  wrong  in  offer- 
ing inducements  to  the  party  to  terminate 
it  in  the  interest  of  the  person  offering  In- 
dncemoits  for  such  action  to  his  own  ad- 
122N.W.-87 


vantage.  The  claim  that  defendants  com- 
mitted a  legal  wrong  In  furnishing  evidence 
to  plaintiff  for  use  in  its  suit  against  the 
Indiana  Company  is  also  without  foundation. 
Cases  are  cited  to  the  effect  that  it  is  Illegal 
to  agree  to  furnish  evidence  for  a  considera- 
tion to  be  paid  only  in  the  event  that  the 
party  procuring  the  evidence  is  successful  in 
his  suit.  Glllet  V.  Supervisors,  67  111.  256; 
Quirk  v.  Muller,  14  Mont.  467,  36  Pac.  1077, 
25  li.  R.  A.  87,  43  Am.  St  Rep.  647.  But 
here  there  was  no  Inducement  held  out  to 
defendants  to  procure  evidence  that  should 
accomplish  a  specific  result  Defendants 
agreed  that,  if  they  got  a  contract  with  the 
Russell  Company  for  better  terms  In  the 
sale  of  wind  stackers  than  those  offered  by 
plaintiff,  they  would  disclose  such  fact  with 
evidence  thereof  to  plaintiff  in  return  for  an 
advantage  to  be  given  them  in  that  event, 
and,  when  they  had  instruments  and  letters 
furnishing  such  evidence,  they  turned  them 
over  to  plaintiff  for  an  agreed  sum.  There 
was  nothing  in  these  transactions  tending  in 
the  remotest  way  to  the  corruption  of  jus- 
tice. The  sufficiency  of  the  evidence  to  sup- 
port the  verdict  of  the  jury  is  questioned; 
but  we  need  not  discuss  the.  evidence  in  de- 
tail. It  is  suflicient  to  say  that  there  was 
enough  to  go  to  the  jury,  and  the  lower  court 
did  not  err  in  refusing  to  set  aside  the  ver- 
dict on  this  ground. 

2.  Certain  evidence  as  to  statements  made 
by  the  general  agent  of  plaintiff  with  regard 
to  his  efforts  to  procure  from  defendants  a 
contract  with  the  Russell  .Company  was  ob-  ' 
Jected  to  for  plaintiff,  but  the  overruling  of 
the  objection  was  not  error.  The  agent  was 
stUl  in  the  employ  of  the  company,  and  was 
speaking  to  another  officer  or  agent  of  the 
company  In  regard  to  his  action  in  Its  be- 
half. His  statements  or  admissions  were 
plainly  within  the  scope  of  his  authority  in 
the  matter. 

3.  The  trial  court  did  not  err  In  submitting 
to  the  Jury  for  one  verdict  the  three  items 
of  counterclaim.  There  Is  no  requirement  of 
statute  that  the  Jury  be  required  to  return  a 
separate  verdict  as  to  each  of  several  causes 
of  action  or  counterclaim  unless  a  special 
verdict  is  requested.  Notwithstanding  the 
verdict  was  general  as  to  the  three  items  of 
counterclaim,  the  court  did  not  err  in  grant- 
ing a  new  trial  as  to  one  item  of  counter- 
claim and  deducting  the  amoimt  of  that  Item 
from  the  general  verdict,  for  it  was  plain  un- 
der the  record  that  the  jury  had  Included 
the  amount  of  that  claim  in  their  general 
verdict  and,  as  to  that  Item,  the  only  con- 
troversy was  as  to  whether  anything  was 
due.  If  the  claim  was  found  good  to  any 
amount.  It  must  have  been  allowed  in  fulh 
The  court  might,  therefore.  In  the  exercise 
of  its  discretion,  deduct  the  amount  which 
the  jury  had  included  in  their  verdict  on 
account  of  this  claim  and  render  judgment 
on  the  general  verdict  for  the  balance,  al- 
though it  found  error  to  have  been  commlt- 


Digitized  by  VjOOQ  l€ 


678 


122  NORTHWESTERN  REPORTER. 


(Iowa 


ted  In  the  method  of  submlttlog  that  dalm 
to  the  Jury.  As  to  the  two  items  thus  cov- 
ered by  the  judgment,  there  was  no  preju- 
dice to  plaintiff  in  granting  a  new  trial  on 
the  other  item  of  counterclaim. 

4.  After  the  oral  contracts  on  which  de- 
fendants predicate  counterclaims  were  made 
and  as  defendants  claim  had  been  perform- 
ed by  them,  they  executed  to  plaintiff  the 
notes  sued  on  in  this  action;  and  plaintiff 
asked  an  Instruction  to  the  effect  that  the 
execution  of  the  notes  raised  the  presump- 
tion that  all  accounts  and  claims  then  exist- 
ing between  the  parties  were  settled  and 
adjusted.  There  was  no  error  in  refusing 
this  instruction.  The  evidence  shows  with- 
out the  slightest  conflict  that  the  notes  were 
given  for  specific  items  of  Indebtedness  in 
the  usual  course  of  dealings  between  the 
parties,  and  were  not  intended  to  be  settle- 
ments in  full  of  account.  To  such  a  state 
of  facts  the  rule  embodied  in  the  Instruction 
asked  has  no  application.  Other  assignments 
of  error  on  plaintiff's  appeal  need  not  be  con- 
sidered in  view  of  the  conclusions  already 
indicated. 

5.  The  court  below  granted  a  new  trial  as 
to  one  of  defendants'  claims  allowed  by  the 
jury  on  the  ground  that  there  was  error  in 
the  instructions  of  the  court  relating  to  the 
effect  of  a  subsequent  settlement  It  appears 
that  this  settlement,  made  at  the  end  of 
1901,  related  to  commissions  for  business  of 
that  year,  and  commission  certificates,  so 
called,  were  Issued  to  defendants  for  the 
amount  found  due  on  this  settlement  The 
court  Instructed  the  jury  with  reference  to 
the  effect  of  this  alleged  settlement  as  bear- 
ing upon  the  additional  rebate  subsequently 
agreed  to  be  made,  limiting  its  effect  to  a 
rebate  for  one  sale  made  in  1901.  It  is  not 
clear  from  the  ruling  of  the  court  In  what 
respect  this  instruction  was  thought  to  be 
erroneous.  But  the  presumption  is  strong  in 
favor  of  the  correctness  of  the  action  of  the 
court  in  granting  a  new  trial,  and  we  are 
not  able  to  say  from  the  record  so  far  as 
arguments  of  counsel  throw  any  light  on  it 
that  the  court  erred. 

The  Judgment  is  on  both  appeals  aflbmed. 


In  n  COOK'S  ESTATE. 
(Supreme  Court  of  Iowa.     Sept  28,  1909.) 

1.  Appeal  aitd  Erbob  ((  1201*)— RevebbaI£— 
Amendments  AprES  Remand. 

In  an  ordinary  case  of  reversal  and  remand, 
it  Is  nnnsual  to  permit  amendments  either  to 
the  petition  or  answer;  permission  being  gen- 
erally limited  to  law  cases,  or  by  express  direc- 
tion of  the  Snpreme  Court  in  suits  in  equity. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  ii  4673-4683;  Dec.  Dig.  t 
1201.«1 

2.  Appeal  and  Ebbob  (J  1201*)— Rbvxbsal— 
Amendment  Atteb  Remand. 

In  probate  proceedings  for  the  distribution 
of   a   fund   recovered    for    decedent's   wrongful 


death,  it  was  held  on  appeal  to  the  Supreme 
Court  without  reference  to  the  statutes  ot  Ne- 
braska, which  were  neither  pleaded  nor  cited, 
that  the  widow  took  tlie  entire  fund  under  the 
will  of  her  husband ;  the  case  being  reversed 
and  remanded  for  an  order  in  harmony  with  the 
opinion.  Held  that,  objectors  not  having  relied 
on  the  Nebraska  statute,  could  not,  after  re- 
mand, change  the  issues  by  amending  their  ol>- 
jections,  ana  pleading  the  statute  providing  that 
such  damages  shall  be  for  the  benefit  of  the 
widow  and  next  of  kin. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  ^  4683 ;   Dec.  Dig.  {  1201.*] 

3.  Appeal  and  Ebbob  (§  1097*)— Decision  on 
Appeal— "Rbs  Judicata." 

A  decision  on  appeal  Is  res  Judicata  be- 
tween the  parties,  not  only  as  to  ail  matters 
pleaded,  but  as  to  all  the  matters  necessarily 
mvolved,  and  wUcb  might  have  t>een  pleaded. 

[E!d.  Note.— For  other  cases,  see  Appeal  and 
Error.  Cent  Dig.  H  435S-43G2;  Dec.  Dig.  | 
1097.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  7,  pp.  6128,  6129;    vol.  8,  pp.  7786,  7787.] 

4.  CouBTs  (J  99*)— Decisions— Law  or  thb 
Case. 

Where  the  law  applicable  to  facts  pleaded 
is  once  determined,  it  becomes  the  law  of  the 
case  until  set  aside  or  vacated  by  proper  pro- 
ceedings which  cannot  be  done  by  amendment 
of  the  pleadings. 

[EU.  Note.— For  other  cases,  see  Courts,  Cent. 
Dig.  {  340 ;    Dec.  Dig.  }  90.*] 

Evans,  C.  J.,  dissenting. 

Appeal  from  District  Court,  Harrison  Coun- 
ty ;  N.  W.  Macy,  Judge. 

Appeal  from  an  order  of  the  district  couri 
upon  certain  objections  filed  to  the  final  re- 
port of  the  executrix,  whereby  it  was  held 
that  the  widow  of  the  deceased  was  entitled 
to  but  one-third  of  a  certain  fond  collected 
from  a  railway  company,  and  that  Arthur 
Cook  and  Mabel  Cook  were  each  entitled  to- 
one-third  thereof.  The  executrix  Is  appel- 
lant   Reversed  and  remanded. 

J.  S.  Dewell,  for  appellant  L.  W.  Fallon, 
and  Roadifer  &  Arthur,  for  appellees. 

DEEAIER,  3.  This  case  has  once  been 
before  us,  and  the  opinion  filed  therein  wilt 
be  found  reported  in  126  Iowa,  158,  101  N. 
W.  747.  After  the  remand  to  the  district 
court,  the  objectors,  heirs  of  the  deceased, 
Ludan  S.  Cook,  amended  the  objections  upon 
which  the  case  has  been  tried  and  submitted 
here  by  pleading  the  statutes  of  Nebraska, 
which  provide  that  damages  for  the  death 
of  a  person  shall  be  for  the  exclusive  benefit 
of  the  widow  and  next  of  kin,  and  shall  be 
distributed  to  such  widow  and  next  of  kin 
in  the  proportion  provided  by  law  for  the 
distribution  of  personal  property  left  by  in- 
testates; tliat  is  to  say,  in  equal  shares  to 
the  children.  The  executrix  moved  to  strike 
this  amendment  t>ecause  filed  too  late,  and 
because  all  matters  were  adjudicated  by  the 
decree  of  this  court,  and  for  the  further  rea- 
son that  no  new  issues  could  be  interposed 
after  the  final  order  and  decree  of  this  court 
The  motion  was  overruled  and   the  canse 


•For  othar  eSMi  ■••  sama  topio  and  section  NUUBBR  In  Dec.  &  Am.  Dig*.  19OT  to  data,  ft  Reporter  Indexes 


Digitized  by 


L-oogle 


Iowa) 


IN  RE  CXX)K'8  ESTATE, 


579 


went  to  a  bearing  upon  these  amended  ob- 
Jectionfi,  resulting  In  the  order  stated,  which 
was  a  complete  reversal  of  the  orders  of 
this  court  on  appeal.  The  widow,  both  In- 
dlrldually  and  as  executrix,  appeals. 

On  the  former  api>eal  the  Nebraska  statute 
was  not  relied  upon,  nor  was  It  cited  or  called 
to  our  attention,  and,  under  the  record  then 
before  us,  we  held  that  the  widow  took  the 
entire  fond  under  the  will  of  her  deceased 
husband.  The  cause  was  reversed  and  re- 
manded obviously  for  the  purpose  of  having 
an  order  made  in  harmony  with  the  opinion 
bera  Instead  of  entering  such  order,  the 
trial  court  granted  permission  to  file  the 
amendment  to  the  objections  hitherto  noted. 
If  this  were  an  ordinary  case  either  at  law 
or  in  equity,  no  one,  we  think,  would  earnest- 
ly contend  that  the  order  should  stand.  If 
such  practice  were  permitted,  no  case  would 
ever  be  at  an  end,  for  upon  each  reversal 
here  a  new  decision  or  an  overlooked  statute 
of  a  foreign  state  might  be  Introduced  into 
the  case  with  the  result  that  there  might  nev- 
er be  a  final  adjudication.  Even  in  the  or- 
dinary case  it  is  unusual  to  permit  the  intro- 
duction of  amendments  either  to  the  petition 
or  to  the  answer  after  a  decision  here,  and, 
when  permitted,  they  have  been  In  law  cases 
or  by  express  direction  of  this  court  in  suits 
in  equity.  The  final  order  made  by  the  trial 
court  was  either  a  reversal  of  our  former 
holding,  or  a  decision  based  upon  statutes  of 
a  sister  state  which  were  neither  pleaded  nor 
relied  upon  when  the  case  was  first  before 
us.  As  there  was  no  order  made  by  this 
court  on  the  former  appeal  permitting  a 
change  in  the  issues  or  Indicating  that  there 
should  be  a  retrial,  the  effect  of  the  reversing 
order  was  to  send  the  case  to  the  lower  court 
for  an  order  in  harmony  with  the  opinion 
here.  When  the  case  got  to  that  court,  no 
new  fact  was  presented  save  the  Nebraska 
statutes  relied  upon,  and  no  claim  of  over- 
sight or  misfortune  was  pleaded.  For  aught 
that  appears,  counsel  had  knowledge  of  the 
Nebraska  statutes  from  the  beginning,  but 
for  some  reason  best  known  to  themselves 
they  did  not  see  fit  to  rely  thereon.  That  the 
former  opinion  was  res  adjudlcata,  not  only 
as  to  all  matters  which  were  pleaded,  but  as  to 
all  matters  necessarily  Involved  end  which 
might  have  been  pleaded,  is  fundamental. 
Ingold  V,  Symonds,  134  Iowa,  208,  111  N.  W. 
802;  Bedwell  v.  Gephart,  67  Iowa,  44,  24  N. 
W.  585;  Hanson  v.  Manley,  72  Iowa,  48,  33 
N.  W.  357 ;  Hempstead  v.  City,  63  Iowa,  36, 
18  N.  W.  676;  Keokuk  v.  City  of  Keokuk,  80 
Iowa,  137,  45  N.  W.  565;  Murphy  v.  Cuddi- 
by,  111  Iowa,  645,  82  N.  W.  999;  Zalesky  v. 
Insurance  Co.,  114  Iowa,  516,  87  N.  W.  428; 
Adams  V.  Railroad,  55  Iowa,  94,  2  N.  W.  1054| 
7  N.  W.  471 ;  Hendershott  v.  W.  N.  C3o.,  114 
Iowa,  415,  87  N.  W.  288;  Wood  v.  Hall 
(Iowa)  110  N.  W.  270;  C,  M.  &  St  P.  R. 
R.  v.  Hemenway,  134  Iowa,  626,  111  N.  W. 
«S7.    In  the  Zalesky  Case,  supra,  it  is  said: 


"The  due  and  timely  adjudication  Of  tb» 
rights  of  litigation  demands  that  a  cause 
of  action  or  a  defense  be  submitted  as  a 
whole  when  known,  and  not  by  piecemeal, 
otherwise,  parties  not  offending  as  in  this 
case  may  be  eternally  harassed,  and  the 
courts  constantly  engaged  in  passing  upon 
points  raised  one  at  a  time  in  a  long  course 
of  litigation.  We  cannot  lend  our  sanction 
to  such  a  procedure.  Where  there  is  an 
opportunity  for  full  presentation  of  all  the 
facts  in  the  case,  the  party  relying  thereon 
must  make  a  full  disclosure  thereof  if  known 
to  blm  or  suffer  for  a  failure  so  do  to.  He 
cannot  be  permitted  to  conceal  a  part  of  bis 
action  or  defense,  or  to  negligently  overlook 
it,  and  thus  prolong  Indefinitely  the  final 
settlement  of  the  case.  This  proposition  is 
BO  manifestly  ri^t  that  no  citation  of  au- 
thority in  Its  support  seems  necessary." 
Were  the  case  at  law,  the  objectors  would 
be  bound  by  the  opinion  In  the  former  case, 
and  could  not  amend  by  pleading  the  Neb- 
raska statutes.  This  point  is  definitely  ruled 
by  Adams  v.  Railroad  Co.,  65  Iowa,  94,  2  N. 
W.  1054,  7  N.  W.  471. 

Suggestion  is  made  that  as  the  case  Is  In 
the  probate,  and  the  matter  always  open  untU 
final  discharge  of  the  executrix,  a  different 
rule  should  obtain.  There  might  be  cases 
which  should  be  regarded  as  exceptional  upon 
this  ground  alone;  but  this  Is  not  one  of 
them.  On  the  original  hearing  there  was  a' 
square  issue  between  the  widow  and  the 
heirs  regarding  who  was  entitled  to  the  mon- 
ey in  the  hands  of  the  executrix.  In  no 
other  sense  was  there  an  accounting.  No 
one  was  excepting  to  any  items  of  account, 
either  debit  or  credit  As  the  Issue  of  right 
to  the  money  was  squarely  presented  and  de- 
cided, the  decision  was  as  binding  as  If  it  had 
arisen  in  any  other  form  of  action.  It  was 
a  full  and  complete  adjudication  of  the  rights 
of  the  parties,  and,  when  the  case  went  to° 
decree,  that  decree  became  as  effective  as 
any  other  and  subject  to  the  same  rules  and 
limitations.  Appellees  say  in  argument  that 
"the  question  for  determination  under  the 
objections  was  whether  the  fund  was  dispos- 
ed of  by  the  will  of  decedent;  and  the  question 
still  remains  the  same  under  the  amended 
objections.  This  court  determined  that  un- 
der the  evidence  Introduced  at  the  first  hear- 
ing the  will  controlled  the  fund,  nothing 
more."  With  this  concession  in  mind.  It  be- 
comes very  apparent  that  the  objectors  are 
seeking  to  try  their  case  in  piecemeal.  A 
thorough  discussion  of  the  matter  of  amend- 
ments to  pleadings  after  a  reversal  In  this 
court  will  be  found  In  Allen  t.  Davenport 
115  Iowa,  20,  87  N.  W.  743. 

Having  once  had  their  day  In  court  and 
having  been  defeated,  the  trial  court  had  no 
power  to  reverse  the  action  of  this  court  ot 
to  permit  an  amendment  for  the  purpose  of 
bringing  to  the  court's  attention  a  statute  of 
a  foreign  state  announcing  another  rule  ot 


Digitized  by  VjOOQ  l€ 


680 


122  NORTHWESTERN  REPORTER. 


(Iowa 


law.  The  law  of  the  case  was  settled  In  the 
former  appeal,  and  that  should  have  been  an 
end  of  the  case.  Reed  v.  Howe,  44  Iowa,  303. 
When  the  law  premise  Is  once  determined,  It 
becomes  the  law  of  that  case  to  the  end  of 
time,  unless  set  aside  or  vacated  by  the  prop- 
er proceedings.  This  cannot  be  done,  how- 
ever, by  an  amendment  to  the  pleadings  set- 
ting forth  a  statute  of  another  state.  That 
should  have  been  done  before  the  case  came 
here  for  decision  of  the  legal  proposition. 
Sexton  V.  Henderson,  47  Iowa,  131. 

The  trial  court  was  in  error  in  permitting 
the  amendment  and  In  making  the  order  it 
did.  The  case  will  be  remanded  to  the  dis- 
trict court  for  an  order  In  harmony  with  the 
former  opinion. 

Reversed  aind  remanded. 

EVANS,  C.  3.  (dissenting).  This  is  a  con- 
troversy over  the  final  report  of  the  execu- 
trix, who  is  widow  of  the  deceased.  There 
was  but  one  asset,  and  the  controversy  Is 
over  the  division  of  that  asset.  The  deceas- 
ed was  killed  in  a  railroad  accident.  The 
executrix  received  from  the  railroad  compa- 
ny $3,200  In  compromise  of  damages  for  the 
wrongful  death.  The  deceased  left  a  will 
devising  all  of  bis  estate  to  his  widow.  The 
widow  claimed  the  entire  fund  under  the 
will.  The  objector,  a  son  by  a  former  mar- 
riage and  a  minor,  appeared  by  his  next 
friend,  and  claimed  a  shttre  in  the  fund. 
The  legal  ground  urged  by  him  as  a  basis 
for  his  claim  was  that  the  death  of  the  de- 
cedent was  instantaneous,  and  that  no  cause 
of  action  therefor  arose  in  his  lifetime,  and 
that,  therefore,  it  did  not  pass  by  the  will. 
The  argument  was  that  the  cause  of  action 
was  created  in  favor  of  the  administrator  by 
statute,  and  that  it  arose  after  the  death 
or  at  the  Instant  thereof.  The  trial  court 
sustained  this  view,  and  ordered  the  execu- 
trix to  pay  the  objector  one-third  of  the 
fund.  An  appeal  was  prosecuted  to  this 
court,  and  the  order  was  reversed,  and  the 
case  remanded  without  direction.  The  only 
question  considered  on  the  appeal  was  the 
construction  of  Code,  {  3313.  After  pro- 
cedendo to  the  lower  court,  the  objector 
amended  his  objections  by  pleading  addition* 
al  facts  to  the  effect  that  the  cause  of  action 
against  the  railroad  company  arose  in  Ne- 
braska, and  that  under  the  statute  of  Ne- 
braska, which  gave  rise  to  the  cause  of  ac- 
tion, it  was  expressly  provided  that  the 
damages  recovered  in  such  a  case  should  be 
equally  distributed  among  the  widow  and 
children.  These  facts  being  proved  upon  the 
second  trial,  the  court  ordered  distribution 
In  accordance  with  the  statute  of  Nebraska, 
and  the  executrix  has  appealed  again. 

The  majority  opinion  refuses  to  deal  with 
the  merits  of  the  case  as  made  upon  the  sec- 
ond trial,  but  orders  a  peremptory  reversal 
on  the  ground  that  every  question  I>oth  of 
law  and  fact  was  foreclosed  and  adjudicated 
by  tiie  first  reversing  opinion.    If  this  were 


an  equity  case,  triable  de  novo  In  this  court, 
I  should  find  no  fault  with  the  conclusion 
reached  In  the  majority  opinion,  and  would 
only  dissent  from  that  part  of  the  argument 
therein  which  treats  the  reversal  of  an  ac- 
tion at  law  as  having  the  same  adjudicating 
effect  as  a  reversal  of  an  equity  case.  This 
is  not  an  equity  case.  It  was  not  such  at  the 
time  of  the  first  appeal.  The  appeal  was 
tried  upon  errors  only.  It  was  remanded 
without  direction.  This  left  the  case  in  the 
trial  court  for  retrial.  The  decision  in  this 
court  was  an  adjudication  of  the  legal  ques- 
tion and  nothing  more.  Whether  it  would 
prove  decisive  of  the  case  must  depend  upon 
the  facts  api>earlng  upon  the  second  trial. 
The  Jurisdiction  of  the  trial  court  was  as 
complete  and  broad  upon  the  second  trial  ns 
upon  the  first,  and  its  discretion  to  permit 
amendments  and  its  duty  to  receive  evidence 
was  in  no  manner  different  in  the  second 
trial  that  in  the  first.  It  was  bound  by  the 
legal  question  adjudicated  on  the  first  ap- 
peal, but  it  was  bound  by  no  fact  found  up- 
on the  first  trial.  HoUenbeck  v.  Marshall- 
town,  62  Iowa,  21,  17  N.  W.  155. 

Even  a  question  of  law  adjudicated  upon 
the  first  appeal  may  become  inapplicable  up- 
on the  second  trial  by  reason  of  additional 
facts  and  pleadings  in  the  case.  The  majori- 
ty opinion  applies  the  same  rule  as  would  be 
applicable  If  the  case  had  been  triable  de 
novo  on  the  first  appeal.  The  cases  cited 
therein  In  support  of  this  conclusion  are 
Adams  v.  Railroad  Company,  55  Iowa,  04,  2 
N.  W.  1054,  7  N.  W.  471,  and  Allen  v.  Daven- 
port, 115  Iowa,  20,  87  N.  W.  743.  Both  of 
these  cases  were  equity  cases.  The  distinc- 
tion I  contend  for  was  expressly  recognized 
therein.  I  quote  briefly  from  the  Adams 
Case:  "Of  course,  If  the  facts  change,  the 
rule  of  law  as  announced  may  become  inap- 
plicable. In  such  a  case  It  may  become  nec- 
essary to  apply  a  different  rule.  But,  the 
facts  remaining  the  same,  the  rule  of  law 
as  once  held  must  remain  the  rule  for  the 
case."  It  was  held  in  that  case  that  the  "al- 
lowance of  an  amendment  and  the  tendering 
of  a  new  issue  in  an  equity  case  after  a 
trial  de  novo  in  this  court  and  after  proce- 
dendo should  be  allowed  only  upon  the 
strongest  showing."  It  is  stated  In  the  ma- 
jority opinion  that  "as  there  was  no  order 
made  by  this  court  on  the  former  appeal 
permitting  change  In  the  issues,  or  Indicating 
that  there  should  be  a  new  trial,  the  effect 
of  the  reversing  order  was  to  send  the  case 
to  the  lower  court  for  an  order  In  harmony 
with  the  opinion  here."  That  this  Is  the 
rule  in  an  equity  case  triable  on  ap|)eal  de 
novo  I  grant;  but  this  is  not  the  rule  as 
applied  to  cases  of  appeal  triable  on  errors 
only.  It  Is  also  stated  In  the  majority  opin- 
ion that  in  the  ordinary  case  It  is  unusual 
to  permit  the  Introduction  of  amendments 
"either  to  the  petition  or  tlie  answer  after  a 
decision  here."  My  own  observation  and  ex- 
perience upon  the  trial  bench  and  In  the 


Digitized  by  LjOOQ  l€ 


Iowa) 


GRIFFITH  V.  WAPELLO  COAL  CO. 


681 


practice  Is  the  very  reverse  of  thte  «onten- 
tlon.  There  are  many  pases  In  oar  Beports 
-which  have  come  here  on  successive  appeals, 
and  seldom  twice  upon  the  same  facts,  or 
the  same  pleadings.  In  the  recent  case  of 
Hanson  v.  Cline,  118  N.  W.  754,  the  trial 
court  adopted  the  very  rule  now  announced 
La  the  majority  opinion,  and  refused  to  per- 
mit plaintiff  to  amend  his  pleadings  npon 
the  second  trial  after  a  reversal  in  this 
court  Upon  the  second  appeal  we  reversed 
the  order,  and  held  that  the  amendment 
should  have  been  permitted. 

In  Zimmerman  v.  Robinson,  118  Iowa,  117, 
91  N.  W.  918,  on  the  first  appeal  the  case 
was  reversed  on  grounds  that  were  fatal  to 
the  plaintiff  as  the  case  was  then  ma  da  The 
same  case  came  back  here  on  a  second  ap- 
peal on  different  pleadings  and  on  a  differ- 
ent theory,  and  it  was  affirmed.  See  128 
Towa,  72,  102  N.  W.  814.  The  case  of  Boddy 
V.  Henry  &  Conover,  113  Iowa,  462,  85  N. 
W.  771,  53  L.  'R.  A.  769,  and  128  Iowa,  81, 
101  N.  W.  447,  furnishes  a  similar  illustra- 
tion. It  is  stated  in  the  majority  opin- 
ion "that  the  former  opinion  was  res  adjn- 
dlcata  not  only  as  to  all  matters  which 
were  appealed,  but  as  to  all  matters  neces- 
sarily involved  and  which  might  have  been 
appealed."  That  this  is  the  rule  that  ap- 
plies to  prior  adjudications  In  former  ac- 
tions I  concede.  But,  as  applied  to  the  ef- 
fect of  a  reversing  opinion  In  an  action  at 
law  before  the  termination  of  the  litigation 
in  a  final  judgment,  the  rule  has  never  been 
announced  so  broadly  before.  All  that  has 
been  held  heretofore  Is  that  such  reversing 
opinion  in  a  law  action  adjudicates  the  legal 
questions  passed  upon,  and  nothing  more. 
Nor  are  the  parties  afterwards  precluded 
from  showing  facts  which  may  avoid  the  ap- 
plicability of  the  legal  questions  so  settled. 
The  first  five  cases  cited  in  the  majority 
opinion  in  support  of  this  proposition  all  in- 
volved final  judgments  in  former  actions. 
In  the  Zalesky  Case  the  plaintiff's  pleadings 
had  upon  two  successive  trials  admitted  cer- 
tain facts.  On  the  third  trial  he  amended 
his  pleading  and  denied  such  facts,  and  this 
court  held  that  the  amendment  under  the 
circumstances  should  not  have  been  permit- 
ted. In  the  Hendershott  Case  it  was  express- 
ly stated  that  the  evidence  on  the  second 
trial  was  the  same  as  on  the  first  The  legal 
questions  decided  upon  the  first  appeal  were 
therefore  determinative.  The  case  of  Wood 
V.  Hall  was  an  equity  case  and  involved  a 
question  of  estoppel  against  a  taxpayer  in 
relation  to  public  improvements.  The  effect 
of  an  appeal  to  this  court  was  not  Involved 
In  that  case. 

In  the  case  at  bar  the  question  of  where 
the  cause  of  action  arose  was  not  considered 
at  all,  nor  was  there  any  evidence  upon  tliat 
question  except  possibly  the  fact  that  the 
accident  occurred  In  Nebraska.     The  addi- 


tional facts  proved  are  In  no  sense  Incon- 
sistent with  any  fact  proved  on  the  former 
trial.  They  are  simply  additional  facts 
which  are  made  to  appear  upon  the  second 
trial.  Inasmuch  as  the  majority  opinion 
has  not  considered  the  case  on  its  merits,  I 
do  not  go  into  that  question.  For  the  pur- 
pose of  this  dissent  I  assume  that  the  appel- 
lee presents  here  a  meritorious  case,  and 
that  be  is  entitled  to  maintain  the  judgment 
entered  in  his  favor  In  the  court  below,  pro- 
vided he  can  have  a  hearing  here  on  the 
merits.  I  think  he  is  entitled  to  such  a 
bearing. 


GRIFFITH  V.  WAPELLO  COAL  CO. 
(Supreme  Court  of  Iowa.     Sept.  23,  ld09.) 

Mastkb  and  Servant  (S  286*)  —  Death  of 
Seevant  — Actions  — WiTnoKAWAL  of  Is- 
sues. 

In  an  action  for  the  death  of  a  miner  from 
being  struck  by  loaded  coal  cars  which  had 
broken  loose  from  the  "trips"  of  which  they 
formed  a  part  and  ran  down  an  incline  along 
which  they  were  being  brought  to  the  shaft, 
where  one  of  the  allegations  of  negligence  of  the 
master  was  his  failure  to  maintam  a  derailing, 
switch  on  that  portion  of  the  track  by  which 
cars  approached  the  shaft,  but  there  was  no 
evidence  that  reasonable  prudence  required  the 
installation  of  such  a  switch,  nor  that,  had  it 
been  maintained,  it  could  have  been  operated 
practically  so  as  to  have  prevented  the  injnrjr  to 
decedent,  it  was  not  error  for  the  court  to  with- 
draw the  allegation  of  negligence  from  the  jury. 
[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Dec.  Dig.  i  286.*J 

Appeal  from  District  Court,  Monroe  Coun- 
ty; D.  M.  Anderson,  Judge. 

Action  to  recover  damages  on  account  of 
the  death  of  plaintifTs  intestate,  Arthur  Par- 
ker, from  injuries  received  by  him  while  em- 
ployed In  defendant's  mine.  There  was  a 
verdict  for  defendant  and  plaintiff  appeals. 
Affirmed. 

Mitchell  &  Price  and  Mr.  Hunter,  for  appel- 
lant J.  0.  Mabry  and  Perry  &  Perry,  for 
appellee. 

McCLAIN,  J.  The  questions  presented  on 
this  appeal  relate  entirely  to  the  giving  and 
refusal  of  Instructions;  and  the  facts  and 
circumstances  relating  to  the  accident  caus- 
ing the  death  of  plaintiff's  Intestate  need  on- 
ly be  stated  so  far  as  they  bear  upon  the  ac- 
tion of  the  court  in  this  respect.  While 
plaintiff's  intestate,  Parker,  an  employe  in 
defendant's  mine,  was  waiting  at  the  foot 
of  the  shaft  to  be  elevated  to  the  surface, 
he  was  struck  by  loaded  coal  cars  which  had 
broken  loose  from  the  "trip"  of  which  they 
formed  a  part,  and  ran  down  an  incline  in 
the  track  along  which  they  were  being 
brought  to  the  shaft  The  method  of  propel- 
ling and  controlling  the  cars  on  the  track 
was  by  a  cable  attached  at  fhe  front  and 
rear  ends  of  the  trip  operated  by  means  of 
machinery,  so  that  the  cars  constituting  the 


•For  other  caaas  m«  same  topic  and  aection  NUMBBB  In  Dae.  ft  Am.  Diga.  IMT  to  data,  *  Raportar  Indaxai 


Digitized  by  VjOOQ  l€ 


582 


122  NORTHWESTERN  REPORTER. 


(Iowa 


trip  could  be  pulled  forward  or  held  back 
as  occasion  might  require.  As  this  trip  of 
cars  approached  the  shaft,  it  was  being  held 
back  by  means  of  the  caUe,  when  the  trip 
broke  loose  from  the  restraining  cable  at  the 
rear,  and  ran  down  the  incline  to  the  shaft, 
striking  Parker,  and  causing  his  deatlL 

1.  One  of  the  allegations  of  negligence  on 
the  part  of  defendant  was  in  falling  to  main- 
tain a  derailing  switch  or  "Flying  Dutch- 
man" on  that  portion  of  the  track  down 
which  cars  approached  the  shaft,  and  appel- 
lant assigns  error  in  the  action  of  the 
court  in  withdrawing  from  the  consideration 
of  the  Jury  this  allegation  of  negligence. 
The  only  evidence  on  this  subject  was  found 
in  the  statement  of  defendant's  foreman, 
who  testified  as  a  witness,  that  a  derailing 
switch  is  a  switch  that  can  be  operated  by 
a  lever  placed  at  any  desired  point  in  the 
mine  and  connected  with  the  switch  by 
wire,  by  means  of  which  lever  the  switch 
could  be  so  operated  as  to  wreck  and  stop  a 
train  that  had  broken  loose;  and  that  of 
defendant's  general  manager,  who  testified 
that  he  had  known  of  the  device  called  a 
"derailing  switch"  for  a  good  many  years. 
Plainly  the  statements  of  these  witnesses 
did  not  tend  to  show  that  In  the  practical 
operation  of  the  cars  in  defendant's  mine  a 
derailing  switch  would  have  been  proper  on 
the  portion  of  the  track  down  which  these 
cars  ran  after  they  broke  loose  from  the  ca- 
ble, or  that  such  a  device  bad  It  been  install- 
ed could  have  been  so  operated  as  to  avoid 
the  Injury  to  deceased.  The  incline  in  the 
track  extended  back  from  the  shaft  about 
200  feet  Counsel  for  appellant  concede  that 
the  effect  of  a  derailing  switch  would  be  to 
wreck  the  "trip"  and  cause  peril  to  employes 
who  might  be  riding  thereon.  Whether  this 
danger  would  in  general  be  less  than  the 
danger  Involved  In  allowing  the  cars  to  run 
down  to  the  "sump"  at  the  foot  of  the  shaft 
is  not  indicated  in  the  evidence.  There  is 
nothing  to  show  that  derailing  switches  are 
usual  under  such  circumstances,  nor  on  the 
whole  that  they  are  conducive  to  the  safety 
of  employ^.  In  short,  there  is  not  the  slight- 
est evidence  that  in  the  exercise  of  reason- 
able care  for  the  safety  of  employes  the  de- 
fendant should  have  installed  a  derailing 
switch  on  the  decline  In  the  track  near  the 
shaft  Under  these  circumstances,  it  Is  not 
necessary  to  discuss  the  numerous  author- 
ities cited  by  counsel  in  argument  In  the 
absence  of  any  evidence  whatever  that  rea- 
sonable prudence  required  the  installation  of 
a  derailing  switch,  and  that  had  such  switch 
been  maintained,  it  could  have  been  operated 
practically  so  as  to  prevent  the  injury  to  de- 
ceased, there  was  nothing  to  go  to  the  Jury 
on  this  assignment  of  negligence.    It  is  true 


that  failure  of  other  mineowners  to  employ 
such  a  safety  device  could  not  excuse  de- 
fendant from  doing  so  if  the  device  should 
have  been  employed  by  the  defendant  in  the 
reasonable  operation  of  its  mine  and  the  ex- 
ercise of  reasonable  care  on  the  part  of  de- 
fendant requiring  its  use.  But,  until  it  was 
made  to  appear  by  evid^ce  for  the  plaintiff 
that  defendant  was  bound  in  the  exercise  of 
reasonable  care  to  install  such  a  device,  the 
usage  in  other  mines  was  immaterial.  Such 
usage  might  have  been  proven  for  the  plain- 
tifC  in  order  to  show  that  defendant  was 
negligent  in  not  installing  such  an  appliance; 
but  in  the  absence  of  any  proof  of  negli- 
gence on  the  part  of  defendant  there  was 
no  occasion  for  defendant  to  show  that  sncb 
an  appliance  was  not  in  use  elsewhere  under 
similar  conditions,  and  that  reasonable  care 
did  not  require  its  installation,  and  that  sucb 
installation  was  impractical  or  would  not 
have  averted  the  danger  to  employes  at  the 
foot  of  the  shaft  The  burden  was  on  plain- 
tiff to  show  negligence  on  defendant's  part, 
and,  until  there  was  some  evidence  tending 
to  establish  such  negligence,  there  was  noth- 
ing to  go  to  the  Jury  in  relation  to  the  alleg- 
ed failure  to  maintain  such  safety  device. 

2.  Another  alleged  ground  of  negligence 
was  the  failure  of  defendant  to  use  proper 
care  in  ascertaining  by  reasonable  inspection 
whether  the  draw  bars  and  couplings  of  the 
cars  operated  in  its  mine  were  sufficient  and 
in  good  condition  and  continually  in  repair. 
Appellant  assigns  error  in  the  refusal  to  give 
instructions  asked  on  this  subject.  But  the 
court  did  fully  instruct  the  Jury  with  relation 
to  defendant's  duty  to  inspect  and,  without 
setting  out  at  length  the  instructions  refused 
and  those  given,  it  is  sufficient  to  state  our 
conclusion  after  a  careful  reading  of  them 
that  the  instructions  .given  fully  covered  the 
subject,  and  are  open  to  no  reasonable  objec- 
tion as  applied  to  the  circumstances  disclos- 
ed in  the  evidence.  The  instructions  fully 
detail  the  considerations  which  counsel  for 
appellant  insist  ought  to  have  been  submit- 
ted to  the  Jury  In  determining  whether  un- 
der the  evidence  the  inspection  was  reason- 
ably sufficient  and  are  not  open  to  the  ob- 
jection that  they  only  present  to  the  Jury 
the  circumstances  relied  upon  by  defendant 
to  show  that  there  was  such  Inspection  as 
the  nature  of  the  business  required  to  be 
made  for  the  protection  of  employes. 

The  alleged  errors  which  we  have  consid- 
ered are  the  only  ones  on  which  appellant 
specifically  relies.  There  are  other  general 
criticisms  of  the  instructions  given,  but  read- 
ing the  instructions  as  a  whole,  we  find  them 
to  be  unobjectionable  as  applied  to  the  case 
on  trial. 

Finding  no  error  In  the  record,  the  Judg- 
ment is  affirmed. 


Digitized  by 


Google 


a  DO! 


WOLD  ▼.  SOUTH  DAKOTA  OBNT.  EY.  00. 


683 


STATE  T.  COOK. 

(Sapreme  Court  of  Iowa.     Sept.  28,  1009.) 

Appeal  from  District  Court,  Woodbury  Coun- 
ty:   David  Mould,  Judce. 
"Not  to  be  officially  reported." 
Affirmed. 

Sullivan  &  Griffin,  for  appellant  H.  W.  By- 
eiB,  Atty.  Gen.,  for  the  State. 

PER  CURIAM.  The  defendant  appeals  from 
a  judgment  convicting  him  of  manslaughter. 
The  case  is  submitted  to  us  on  a  short  tran- 
Bcript,  which  shows  no  more  than  the  indict- 
ment, judgment,  and  notice  of  appeal. 

We  find  no  error  in  the  record,  and  the  jud^ 
ment  must  therefore  be  affirmed. 

Affirmed. 


STATE  ▼.  PLOTD. 

(Supreme  Court  of  Iowa.    Sept  28,  1909.) 

Appeal  from  District  Court,  Wapello  County ; 
M.  A.  Roberts,  Judge. 
Affirmed. 

Jaqnea  &  Jaques,  for  appellant.  H.  W.  Byen, 
Atty.  Gen.,  for  the  State. 

PER  CURIAM.  The  defendant  appeals  from 
a  judgment  convicting  him  of  the  crime  of 
nuisance.  We  have  no  record  before  us  but  a 
short  transcript  showing  the  indictment  judg- 
ment and  notice  of  appeal  only.  We  6nd  no 
error  in  the  record  thus  presented,  and  the  judg- 
ment must  therefore  be,  and  it  is,  affirmed. 

Affirmed. 


STATE  T.  BROWN. 

(Supreme  Court  of  Iowa.     Sept  28,  1909.) 

Appeal  from  District  Court,  Woodbury  (boun- 
ty:    David  Mould,  Judge. 
"Not  to  be  officially  reported." 
Affirmed. 

Sullivan  &  Griffin  and  J.  H.  Prlchard,  for 
appellant  H.  W.  Byers,  Atty.  Gen.,  for  the 
SUte. 

PER  CURIAM.  The  defendant  was  convict- 
ed of  an  assault  with  intent  to  commit  rape, 
and  appeals. 

The  case  has  been  submitted  to  us  on  a  short 
transcript  which  shows  only  the  indictment. 
judgment  and  notice  of  appeal.  No  error  in 
apparent,  and  the  judgment  Is  therefore  affirmed. 

Affirmed. 


STATE  y.  WOOLETT. 

(Supreme  Court  of  Iowa.    Oct  2,  1909.) 

Appeal  from  District  Court,  W^P^Ho  Coun- 
ty:   M.  A.  Roberts,  Judge. 
Not  to  be  officially  reported." 

Oilmore  &  Moon,  for  appellant  H.  W.  Byers, 
Atty.  Gen.,  for  the  SUte. 

PER  CURIAM.  This  case  was  submitted  oo 
a  short  transcript,  without  argument  We  havp 
examined  the  record  thus  presented,  and,  find- 
ing no  error  therein,  the  judgment  is  affirmed. 

Affirmed. 


STATE  T.  WORKMAN. 

(Supreme  Court  of  Iowa.    Oct  2,  1909.) 

Appeal  from  District  Conrt,  Woodbury  Coun- 
ty:   David  Mould,  Judge. 
"Not  to  be  officially  reported." 


I.  P.  Murphy,  for  appellant  H.  W.  Byers, 
Atty.  Gen.,  for  the  State. 

PER  CURIAM.  The  defendant  appeals  from 
a  judgment  convicting  him  of  the  crime  of 
forgery.  The  case  comes  to  us  on  a  short  tran- 
script, without  argument.  We  find  no  error  in 
the  record  as  presented  to  us,  and  the  judgment 
is  therefore  affirmed. 

Affirmed. 


STATE  V.  LANE. 

(Supreme  Conrt  of  Iowa.    Oct  2,  1909.) 

Appeal  from  District  0>nrt,  Wapello  County ; 
M.   A.   Roberts,   Judge. 
"Not  to  be  officially  reported." 

W.  W.  Epps,  for  appellant  H.  W.  Byera, 
Atty.  Gen.,  for  the  State. 

PER  CURIAM.  The  defendant  was  convicted 
of  keeping  a  gambling  house,  and  appeals.  The 
appeal  was  submitted  on  a  short  transcript  and 
without  argument  We  find  no  error  in  the  rec- 
ord presented,  and  the  judgment  is  affirmed. 

Amrmed. 


WOLD  v.  SOUTH  DAKOTA  CENT.  RY.  CO. 

(Supreme   Court  of   South   Dakota.      Sept   S, 
1900.) 

1.  Railroads  (|  412*)— Injubieb  to  Animals 
— Fbnceb— Duty  to  Maintain. 

Civ.  Code,  g  642,  provides  that,  whenever 
a  landowner  shall  construct  a  fence  on  all  sides 
of  the  land  except  the  side  abutting  against  a 
railroad,  it  shall  be  the  duty  of  the  railroad  com- 
pany to  construct  a  fence  on  such  side.  Sec- 
tion 543  provides  that,  when  the  owner  has  com- 
pleted his  portion  of  the  fence,  he  shall  notify 
the  railroad  company  to  complete  its  portion  of 
the  fence  within  60  days,  etc.  Held  that,  where 
a  railroad  voluntarily  constructs  a  fence,  that 
no  notice  was  given  does  not  exempt  it  from 
liability  for  injuries  to  cattle  through  allowing 
the  fence  to  become  defective. 

[Ed.    Note.— For  other   cases,   see   Railroads, 
Cent  Dig.  i§  1451,  1452 ;    Dec  Dig.  i  412.*] 

2.  Railhoads  (i  412*)— iNJtTBiES  TO  Animals 
—Fences— Cadsb  or  Injubt. 

Section  544  provides  that,  if  the  railroad 
neglects  or  refuses  to  comply  with  any  of  the 
requirements  of  the  act,  the  landowner  may 
construct  or  repair  the  fence  along  the  line  of 
the  road  and  makes  the  railroad  liable  for  ail 
damages  accruing  by  reason  of  such  neglect  or 
refusal.  Held,  that  the  liability  of  the  railroad 
is  not  confined  to  injuries  to  stock  while  pass- 
ing through  a  defective  fence,  but  extends  to 
injtiries  to  the  stock  through  being  struck  by 
trains  while  on  the  right  of  way, 

[Ed.   Note.— For  other  cases,  see  Railroads, 
Dec.  Dig.  {  412.*J 

3.  Costs  (|  8*)— Natubb  of  Right— Depend- 
ent ON  Statute. 

In  taxing  costs  in  law  cases  the  courts  have 
only  those  rights  expressly  or  impliedly  given  by 
statute. 

[Ed.  Note.— For  other  cases,  see  Costs,  Cent. 
Dig.  {  1 ;  Dec.  Dig.  8  3.*] 

4.  Costs  (8  228*)- Appeal. 

There  being  no  notice  of  trial  on  appeal 
from  a  judgment  of  a  justice  of  the  peace  to 
the  county  court,  no  coats  may  be  taxed  for  pro- 
ceedings after  notice  and  before  trial ;  the  stat- 
ute not  providing  for  the  taxation  of  such  itenL 

[Ed.  Note.— For  other  cases,  see  Costs,  Cent 
Dig.  I  848;   Dec  Dig.  (  22a»] 


«For  othsr  cases  see  sams  toplo  and  section  NUHBEB  In  Dec  A  Am.  Digs.  1S07  to  data,  *  Reporter  Indices 


Digitized  by 


Google 


584 


122  NORTHWESTERN  REPORTEB. 


(S.D. 


Appeal  from  Circuit  Court,  Minnehaha 
Couutj'. 

Action  by  Lars  J.  Wold  against  the  South 
Dakota  Central  Railway  Company.  Judg- 
ment for  plaintiff,  and  defendant  appeals. 
Affirmed,  with  the  exception  that  an  Item 
of  $3  costs  be  strlciien  from  the  Judgment 

Joe  Klrby,  for  appellant  Tore  Telgen,  for 
respondent 

WHITINO,  J.  This  action  was  brought 
In  the  Justice  court  of  Minnehaha  county  by 
the  plaintiff  and  respondent  to  recover  of  I 
the  defendant  and  appellant  damages  which 
plalntiCF  claimed  he  bad  suffered  through 
the  negligence  of  the  defendant  The  Judg- 
ment being  for  plaintiff,  the  defendant  ap- 
pealed to  the  county  court  of  said  Minne- 
haha county  upon  questions  of  law  and  fact; 
and  upon  such  appeal,  there  being  a  review 
of  the  evidence  taken  upon  the  trial  in  the 
Justice  court,  the  said  Judgment  of  the  jus- 
tice court  was  affirmed  with  costs,  and  said 
cause  comes  to  this  court  upon  appeal  from 
the  Judgment  of  such  county  court. 

No  question  Is  raised  on  the  pleadings 
herein;  the  complaint  being  in  conformity 
with  the  following  facts  shown  by  the  tes- 
timony received:  Plaintiff  owned  certain 
land  in  township  103,  range  50,  and  was 
using  same  for  pasture,  when  the  defendant 
company  constructed  this  line  of  jroad  across 
such  pasture  land.  At  the  time  of  building 
the  railroad  through  such  pasture,  defendant 
constructed  a  four-wire  fence  along  said 
right  of  way;  tte  other  three  sides  of  pas- 
ture land  having  been  fenced  by  the  plain- 
tiff. At  the  time  of  the  accident  the  wire  in 
defendant's  fence  had  become  loose  and  the 
fence  insufficient  to  retain  stock.  Plaintiff's 
cow  passed  through  such  fence  across  the 
railroad  track  into  a  clover  field,  and.  In  at- 
tempting to  return,  was  killed  by  defend- 
ant's train.  It  was  admitted  that  there  was 
no  negligence  on  the  part  of  defendant's  em- 
ployes In  the  running  of  said  train.  The 
cow  In  question  was  of  the  value  for  which 
Judgment  was  rendered.  Plaintiff  admits 
that  he  never  gave  any  written  notice  to 
the  defendant  requiring  defendant  to  con- 
struct the  fence  in  question.  No  evidence 
was  offered  on  behalf  of  the  defense,  and  de- 
fendant moved  to  dismiss  the  complaint  for 
the  reason  that  the  facts  proven  showed  that 
plaintiff  was  not  entitled  to  recover,  which 
said  motion  was  denied,  and  Judgment  was 
entered  for  plaintiff.  As  part  of  the  Judg- 
ment in  the  county  court  there  was,  over  de- 
fendant's objection,  taxed  as  costs  a  $3  item 
for  proceedings  after  noMce,  and  before  trial 
on  appeal  in  such  county  court 

Appellant  assigns  the  following  as  errors: 

(1)  In  sustaining  the  decision  of  the  Jus-  | 
tice  court  and  for  the  following  reasons:    (a) 
Because  the  evidence  shows  that  the  plain- ' 
tiff  had  never  notified  the  defendant  to  con-  | 
struct  a   fence  adjoining  its  right  of  way 
through  his  land,    (b)  That  defendant  owed  j 


to  the  plaintiff  no  duty  or  obligation  to 
fence  without  notice,  (c)  That  the  fence  as 
constructed  by  the  defendant  was  and  com- 
prised Its  ovrn  volunteer  act  was  for  Its 
own  benefit,  and  one  that  It  was  neither 
obliged  to  maintain  nor  repair  for  the  plain- 
tiff's benefit  (d)  That  the  evidence  shows 
the  accident  was  unavoidable,  and  that  the 
cow  in  question  was  a  trespasser  on  the  de- 
fendant's track. 

(2)  In  affirming  the  action  of  the  clerk  In 
taxing  $3  for  the  following  reasons:  (n) 
That  there  is  no  notice  of  trial  on  appeal 
from  Justice  court  (b)  That  there  can  be 
no  proceedings  "after  notice  of  trlAl"  on  such 
appeal,  (c)  That  the  statute  does  not  allow 
any  such  Item  of  costs  to  be  taxed  in  this 
kind  of  case,  and  the  court  possesses  no  in- 
herent power  to  allow  it 

From  the  above  assignments  it  appears 
that  appellant  would  so  construe  sections 
542  and  543  of  our  Civil  Code  as  to  make 
them  put  no  duty  upon  a  railroad  company 
to  construct  a  fence  except  after  notice.  We 
cannot  agree  with  such  an  Interpretation 
of  these  statutes.  Section  512  specifically 
and  by  means  of  the  most  direct  language 
makes  It  the  "duty"  of  a  railroad  company 
to  construct  a  fence  under  certain  circum- 
stances, and  the  facts  of  this  case  are  such 
that  it  became  defendant's  duty  to  construct 
the  fence  at  the  time  it  did  so  construct  It. 
While  section  542  makes  it  the  duty  to  build 
the  fence,  yet  the  Legislature,  realizing  that 
ofttlmes  a  company  might  not  know  that 
the  facts  existed  which  rendered  it  its  duty 
to  build  a  fence,  provided  by  section  543 
for  a  notice  to  be  given  to  such  company, 
after  the  giving  of  which  it  had  a  certain 
time  within  which  to  construct  the  fence.  It 
needs  no  argument  to  show  that  when  a 
company  has  performed  its  duty,  no  reason 
exists  for  giving  the  notice,  and  It  seems  to 
us  ridiculous  for  defendant  to  contend  that 
if  it  voluntarily  builds  the  fence  without  no- 
tice, and'  is  not  afterwards  notified  to  do 
what  it  has  already  done,  it  will  forever  re- 
main free  from  any  liability  for  accidents 
caused  through  allowing  the  fence  to  get 
into  defective  condition. 

Defendant  in  bis  argument  takes  the  po- 
sition that  the  defective  fence  was  not  the 
proximate  cause  of  the  accident  and  con- 
tends that  the  only  damage  the  defendant 
can  be  liable  for,  under  this  fence  law, 
would  have  been  his  damage  from  injuries 
received  by  the  cow  in  passing  through  the 
fence;  and  defendant  refers  to  section  544 
In  support  of  this  contention,  calling  atten- 
tion to  the  fact  that  where  a  railroad  com- 
pany neglects  to  repair  a  fence^  the  land- 
owner may  do  so,  and  the  company  will  be 
liable  for  damages  accruing  by  reason  of 
such  neglect  or  refusal.  The  reading  of  sec- 
tion 544  will  show  that  it  is  not  only  the 
repairing  of  fences  that  it  refers  to,  but 
also  the  constructing  of  the  fences.  If  the 
appellant  is  correct  that  it  is  only  damages 


Digitized  by  VjOOQ  l€ 


S.  D.) 


FARRAR  V.  YANKTON  LAND  &  INVESTMENT  CO, 


585 


for  Injuries  occurring  In  the  fence  Itself 
for  which  the  company  could  be  liable,  theu 
It  could  never  be  liable  where  It  had  wholly 
failed  to  construct  a  fence.  It  needs  no 
argument,  we  think,  to  persuade  one  that 
this  fence  law,  found  In  the  sections  refer- 
red to,  was  passed  for  some  purpose,  to  give 
to  the  landowner  some  benefit,  and  to  us  It 
seems  quite  evident  that  the  purpose  was  to 
protect  the  farmer,  not  against  any  Injuries 
that  might  occur  while  his  stock  was  going 
through  a  defectlye  fence,  but  to  protect  the 
farmer  from  the  well-recognized  dangers 
connected  with  live  stock  wandering  on  the 
railroad  right  of  way,  and  which  danger  is 
principally  that  of  injuries  from  moving 
trains.  While  undoubtedly  a  railroad  com- 
pany would  be  liable  in  damages  for  inju- 
ries sustained  by  stock  in  passing  through 
a  defective  fence,  where  such  defect  was 
caused  through  the  negligence  of  the  com- 
pany, yet  It  is  rather  the  dangers  after  the 
stock  has  passed  through  that  the  law  was 
intended  to  guard  against,  and  there  can  be 
DO  .doubt  but  what  cases  such  as  the  one  at 
bar  were  what  the  Legislature  had  In  mind 
in  framing  the  law  In  question,  and  that, 
therefore,  stock  passing  through  such  defec- 
tive fences  cannot  be  considered  as  trespass- 
ers. The  company  was  therefore  clearly  lia- 
ble regardless  of  any  question  of  negligence 
In  the  management  and  running  of  Its  train. 

As  regards  the  question  of  taxation  of 
costs,  it  must  be  conceded  that  the  courts,  In 
the  matter  of  taxing  costs  in  law  cases,  only 
have  those  rights  expressly  or  impliedly  giv- 
en by  statute,  and,  while  we  believe  It  Is 
quite  a  common  custom  to  tax  as  costs  on 
appeal  $3  for  proceedings  after  notice  and 
before  trial,  yet  we  are  Inclined  to  the  view 
that  appellant  is  correct,  and  that,  there  be- 
ing no  notice  of  trial  on  appeal,. it  must  be 
held  that  there  are  no  provisions  to  support 
the  item  taxed. 

The  judgment  of  the  county  court  is  af- 
firmed, with  the  exception  that  the  item  of 
iB  costs  be  stricken  therefrom. 


FARRAR  et  al.  v.  YANKTON  LAND  &  IN- 
VESTMENT CO.  et  al. 
(Supreme   Court   of   South   Dakota.      Sept.   4, 
1909.) 

Appeal  and  Ebkob  (§  655*)— Bill  of  Ex- 
ceptions OB  Statement  op  Cask— Redund- 
ant Mattek— Stkikinq  fbom  Record. 

Rev.  Code  Civ.  Proc.  §  294,  provides  that, 
when  the  exception  is  to  the  verdict  or  decision 
on  the  ground  of  the  insufficiency  of  the  evi- 
dence to  justify  it,  the  objection  must  be  stated 
with  SO  much  of  the  evidence  of  other  matter  as 
is  necessary  to  explain  it,  and  no  more,  and 
that  only  the  snt>stance  of  the  reporter's  notes  of 
the  evidence  shall  be  stated.  Sections  296  and 
303  make  it  the  duty  of  the  judge  in  settling 
a  bill  or  statement  to  strike  out  all  redundant 
and  useless  matter.  Beld,  that  where  no  at- 
tempt was  made  to  comply  with  the  statute,  not- 
withstanding the  attention  of  counsel  for  appel- 


lants and  of  the  court  was  called  thereto  by 
timely  and  proper  objections,  respondunts  were 
entitled  to  have  a  gurported  bill  of  exceptions  or 
statement  of  the  case  consisting  of  the  stenog- 
rapher's transcript  of  the  proceedings,  replete 
with  redundant  and  immaterial  matter,  etc., 
stricken  from  the  record. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {§  2823-2825;  Dec.  Dig.  § 
C55.»] 

Smith,  J.,  dissenting. 

Appeal  from  Circuit  Court,  Pennington 
County. 

Action  by  John  J.  Farrar  and  another 
against  the  Yankton  Land  &  Investment 
Company,  a  corporation,  and  others.  Judg- 
ment for  plaintiffs,  and  defendants  appeal. 
Respondents'  motion  to  strike  from  the  rec- 
ord a  bill  of  exceptions  or  statement  of  the 
case  granted. 

Holman  &  Janousek,  for  appellants. 
Charles  W.  Brown,  for  respondents. 

HANEY,  P.  J.  Respondents  move  to  strike 
from  the  record  what  purports  to  be  a  bill 
of  exceptions  or  statement  of  the  case,  for 
the  reason,  among  others,  that  the  statement 
as  proposed  and  allowed  was  simply  the 
stenographer's  transcript  of  his  notes  of  the 
proceedings  with  an  assignment  of  errors  ap- 
pended thereto.  The  instrument  purporting 
to  be  a  statement  of  the  case  is  simply  the 
stenographer's  transcript  of  the  proceedings 
with  all  the  redundant,  irrelevant,  and  Im- 
materhil  matter  usually  found  in  such  tran- 
scripts. It  Is  replete  with  such  useless  mat- 
ter as  the  following:  "By  Mr.  Wood:  Q. 
Where  do  you  reside,  Mr.  Tripp?  A.  At 
Yankton,  S.  D.  Q.  What  is  your  business  or 
profession?  A.  Engaged  In  the  practice  of 
law.  Q.  How  long  have  you  resided  there? 
A.  I  have  resided  at  Yankton  over  20  years. 
Q.  Of  what  firm  are  you  a  member?  A. 
Member  of  the  firm  of  Gamble,  Tripp  &  Hol- 
man— Robert  J.  Gamble,  Robert  B.  Tripp, 
and  John  Holman.  Q.  Are  you  acquainted 
with  the  plaintiffs,  Farrar  ftJepsen?  A.  Yes, 
sir.  Q.  Now,  was  there  a  time,  Mr.  Tripp, 
during  last  year,  when  Mr.  Farrar.  together 
with  certain  other  parties  to  this  action,  were 
present  In  your  office?  A.  Not  last  year; 
this  year.  Q.  About  what  date  was  it?  A. 
I  would  say  it  was  about  the  middle  or  about 
the  18th  or  19th  of  January  of  this  year.  Q. 
And  was  Mr.  Alexander,  a  witness,  here,  was 
he  present  at  that  time?  A.  Yes,  sir.  Q. 
WIU  you  state  whether  at  that  time  you  had 
any  conversation  with  Mr.  Farrar  and  these 
other  parties,  or  whether  a  conversation  was 
had  In  your  presence  relative  to  the  matter 
now  In  litigation?  A.  I  would  say  that  this 
particular  case  was  not  under  discussion.  Q. 
Did  the  conversation  have  reference  to  the 
alleged  cause  of  action  or  the  transaction  rel- 
ative to  the  purchase  and  sale  of  the  Jay 
ranch?    A.  Yes,  sir;   more  particularly  with 


•7or  otber  cases  tee  same  topic  aod  section  NUMBER  in  Dec.  ft  Am.  Digs.  1907  to  data,  &  Beporter  Indeze* 


Digitized  by 


Google 


586 


122  NOBTHWESTBRN  REPOBTBB. 


(&!>. 


reference  to  the  purchase  of  the  Jay  ranch, 
and  how  much  had  been  paid.  Q.  Give  that 
conversation  as  yon  remember  It" 

"No  particular  form  of  exception  Is  requir- 
ed, but  when  the  exception  Is  to  the  verdict 
or  decision,  upon  the  ground  of  the  Insuffi- 
ciency of  the  evidence  to  Justify  it,  the  ob- 
jection must  specify  the  particulars  in  which 
such  evidence  is  alleged  to  be  insufficient 
•  •  •  The  objection  must  be  stated  with 
80  much  of  the  evidence  or  other  matter  as 
is  necessary  to  explain  it  and  no  more.  Only 
the  substance  of  the  reporter's  notes  of 
the  evidence  shall  be  stated."  Rev.  Code  Civ. 
Proc.  I  294.  "It  is  the  duty  of  the  Judge,  In 
settling  a  bill  to  strike  out  of  It  all  redundant 
and  useless  matter  so  that  the  exceptions 
may  be  presented  as  briefly  as  possible."  Id. 
{  296.  "It  is  the  duty  of  the  Judge  in  set- 
tling the  statement  to  strike  out  of  it  all  re- 
dundant and  useless  matter,  and  to  make  the 
statement  truly  represent  the  case,  notwith- 
standing the  assent  of  the  parties  to  such  re- 
dundant or  useless  matter,  or  to  any  inaccu- 
rate statement"  Id.  i  803.  In  this  case  no 
attempt  was  made  to  comply  with  the  stat- 
ute, notwithstanding  the  attention  of  counsel 
for  appellants  and  of  the  court  was  called 
thereto  by  timely  and  proper  objections.  It 
readily  will  be  conceded  that  -the  trial  court 
in  the  exercise  of  a  sound  legal  discretion 
should  be  allowed  considerable  latitude  in  de- 
termining what  is  necessary  to  properly  pre- 
sent the  exceptions  in  each  particular  case, 
bnt  this  does  not  Justify  an  entire  disregard 
of  the  requirements  of  the  statute.  Counsel 
for  appellants  insists  that  everything  contain- 
ed in  the  stenographer's  transcript  should  be 
Incorporated  into  the  bill  of  exceptions  or 
statement,  leaving  appellant  to  print  so  much 
thereof  as  he  may  deem  necessary,  a  practice 
which  has  frequently  been  condemned  by  this 
court  and  which  usually  devolves  upon  Its 
Judges  the  labor  of  reading  the  entire  tran- 
script with  all  Its  redundant,  irrelevant  and 
useless  matter  in  order  to  decide  upon  the 
issues  raised  by  an  additional  abstract 
Whatever  may  be  the  relative  merits  of  these 
different  methods  of  procedure,  whether  the 
labor  of  eliminating  redundant  and  useless 
matter  should  be  performed  by  the  Judges 
of  this  court  or  by  the  trial  Judges,  need  not 
be  considered.  It  is  enough  that  the  duty 
has  been  Imposed  by  law  upon  the  latter,  and 
its  proper  performance  should  be  insisted  up- 
on so  long  as  the  statute  remains  unchanged. 
Having  several  times  heretofore  suggested  to 
the  profession  that  the  law  relating  to  this 
subject  should  not  be  ignored,  and,  as  timely 
objection  was  interposed  to  the  method  pur- 
sued, this  is  a  case  in  which  effect  should  be 
give  to  a  long-established  and,  as  we  think, 
highly  commendable,  rule  of  procedure. 

The  motion  to  strike  is  granted. 

SMITH,  X,  dissenting. 


STATK  V.  McCAI<LUM. 

(Supreme  Court  of  South  Dakota.     Sept  20. 
1909.) 

1.  Cbihirai.  Law  (i  1091*)— Apfxai/— Bnx 
OF  Exceptions. 

Code  Cr.  Proc.  f  426,  provides  that  the 
bill  of  exceptions  must  contain  so  much  of  the 
evidence  only  as  is  necessary  to  present  the 
questions  of  law  on  which  the  exceptions  were 
taken,  and  that  the  judge  must  on  the  settle- 
ment of  the  bill  strike  otrt  all  other  matters. 
Held,  that  where  there  was  no  attempt  to  com- 
ply with  the  statute,  the  purported  bill  being 
merely  a  transcript  of  the  stenographer's  notes, 
with  a  certificate  of  the  trial  judge  attached 
thereto  by  stimulation  of  counsel,  and  all  the 
testimony  bearing  on  the  assignments  of  error 
could  have  readily  been  condensed  into  one- 
tenth  of  the  contents  of  such  purported  bill, 
the  same  would  not  be  recognized  as  a  bill  of 
exceptions,  though  no  objection  was  made  either 
in  the  trial  or  in  the  Supreme  Court. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  i  2832;  Dec.  Dig.  S  1091.*] 

2.  Cbiminai,  Law  (J  1103*)  —  Appeal  —  Ab- 
erRAcrr  —  Noncompliamce  with  Coubt 
Rules. 

Supreme  Court  rule  12,  providing  the  form 
of  abstract  in  criminal  cases,  directs  counsel  to 
set  out  So  much  of  the  bill  of  exceptions  or  state- 
ment as  is  necessary  to  show  the  rulijifrs  to 
which  exceptions  were  taken,  and  to  epitomize 
the  evidence  so  as  only  to  present  the  matter  as 
to  which  error  is  alleged.  Beld,  that  where  the 
abstract  contained  17  or  18  pages  of  imma- 
terial matter,  and  was  practically  a  complete 
copy  of  a  purported  bill  of  exceptions  consisting 
of  a  tianscript  of  the  stenographer's  notes,  the 
alwtract  would  not  be  considered. 

[Ed.  Note.— For  other  cases,  see  Criminal 
liw.  Cent  Dig.  §  2882;   Dec.  Dig.  §  1103.*] 

Appeal  from  Circuit  Court  Bntte  County. 

Harry  McCallum  was  convicted  of  crime, 
and  appeals.    Affirmed. 

La  Fleicbe  &  Simons,  wnilam  ▼.  Allen, 
and  William  L.  Dowling,  for  appellant  S. 
W.  Clark,  Atty.  Gen.,  and  C  D.  Sterling, 
Asst  Atty.  Gen.,  and  John  R.  Raish,  State's 
Atty.,  for  the  State. 

WHITING,  J.  The  defendant  and  appel- 
lant herein  was  Informed  against  by  the 
state's  attorney  in  the  circuit  court  and 
charged  with  the  commission  of  a  crime. 
He  was  tried  and  convicted,  and  has  ap- 
pealed his  cause  to  this  court 

An  examination  of  the  purported  abstract 
herein  shows  the  following  facts:  There 
was  absolutely  no  attempt  to  settle  a  bill  of 
exceptions,  such  as  contemplated  by  section 
426  of  the  Code  of  Criminal  Procedure.  It 
appears  that  a  transcript  was  secured  from 
the  stenographer,  and,  under  stipulation  of 
counsel,  the  trial  Judge  attached  a  certificate 
to  such  transcript  attempting,  by  so  doing, 
to  convert  such  transcript  into  a  bill  of  ex- 
ceptions; furthermore,  the  al>stract  instead 
of  being  a  condensed  statement  of  such  parts 
of  the  purported  bill  of  exceptions  as  coun- 
sel might  think  important  to  be  brought  to 
the  attention  of  this  court  is,  outside  of  the 
copy  of  the  Information  and  the  plea  thereto 


•For  otli«r  cum  se«  lame  topio  and  ■•ctlon  NUMBER  In  D«c.  ft  Am.  Dig*.  1M7  to  date,  *  Reporter  Indexes 


Digitized  by 


Google 


S.DJI 


GBDDIS  ▼.  NOBTHWESTBBN  TRUST  CX>. 


687 


and  the  verdict  and  proceedings  after  yer- 
diet,  notUng  mote  nor  lees  than  a  complete 
copy,  word  for  word,  of  the  said  purported 
bill  of  exceptions. 

In  tbe  case  of  Farrar  et  al.  t.  Tanktou 
Land  &  Investment  Co.  et  al.,  122  N.  W.  685, 
▼ery  recently  before  this  court,  the  decision 
of  which  Is  not  yet  officially  reported,  there 
■was  a  similar  puri>orted  bill  of  exceptions, 
and  upon  motion  of  respondents  this  court 
Btruck  the  same  from  the  record  therein. 
We  desire  at  this  time  to  r^terate  every- 
thing that  was  said  by  this  court  through 
Its  presiding  Judge  in  the  determination  of 
Bald  case,  and  refer  tbe  bar  of  this  state  to 
such  case,  and  ask  that  It  give  the  same  a 
careful  reading. 

But  In  the  case  now  before  ns  there  arises 
tbe  further  question:  Shall  this  court  rec- 
ognize as  a  bill  of  exceptions  a  paper  that  in 
no  sense  is  a  bill  of  exceptions,  especially 
where  it  la  perfectly  plain  that  there  was  no 
Intent  to,  or  attempt  to,  comply  with  the 
Bpeciflc  provisions  of  tbe  statutes  of  this 
state  tn  regard  to  the  making  of  bills  of  ex- 
ceptions, when,  as,  In  the  case  at  bar,  no  ob- 
jection to  such  method  of  procedure  has 
been  made  either  in  this  court  or  the  lower 
conrt?  In  order  that  there  may  be  no  fur- 
ther chance  for  misunderstanding  as  to  tbe 
position  of  this  court  in  regard  to  Its  rights 
and  the  duties  of  counsel  and  the  trial  court, 
we  desire  to  announce  that  this  court  does 
not  consider  Itself  In  any  wise  bound  to 
treat  such  a  paper  as  a  bill  of  exceptions, 
and  refuses  so  to  do.  L«t  It  be  understood 
that  this  court  does  not  attempt  to  lay  down 
any  hard  and  fast  rule  as  to  what  shall  be 
a  proper  bill  of  exception  where  such  bill 
has  been  prepared  with  an  effort  and  appar- 
ent intent  to  comply  with  the  statute.  That 
it  may  be  understood  how  flagrant  a  case 
tbe  present  one  is,  we  would  say  that  there 
was  no  assignment  to  the  effect  that  the 
evidence  Is  Insufficient  to  sustain  the  verdict, 
and  yet,  although  there  appears  to  be  918 
questions  and  answers  In  said  record,  the 
last  assignment,  in  any  way  referring  to  the 
introduction  of  testimony,  relates  to  ques- 
tion No.  751,  thus  leaving  some  17  or  18 
pages  to  be  found  in  such  abstract,  copied 
from  such  purported  bUl  of  exceptions,  that 
conld  by  no  stretch  of  Imagination  have  any- 
thing whatever  to  do  wltb  this  appeal. 
There  are  soniie  20  assignments  Ot  error 
touching  the  rulings  on  the  admission  of 
testimony,  and  all  of  tbe  testimony  tn  any 
way  bearing  npon  snch  assignments  could 
have  readily  been  condensed  into  one-tenth 
of  the  contents  of  the  purported  bill  of  re- 
ceptions. We  know  there  is  quite  a  senti- 
ment in  favor  of  substituting  the  stenog- 
rapbo's  transcript  for  present  bill  of  ex- 
ceptions as  provided  by  statute;  but,  no 
mattor  how  meritorious  such  legislation 
might  be,  It  Is  the  duty  of  the  bar  to  comply 


with  the  law  as  it  is  now  nntll  the  Legisla- 
ture may  see  fit  to  change  It. 

This  case  Is  different  from  Farrar  et  al.  v. 
Tankton  Land  &  Investment  Co.,  supra,  in 
that  here  there  was  no  attempt  to  condense 
the  purxwrted  bill  of  exceptions  when  pre- 
paring appellant's  abstract  Rule  12  of  this 
court,  which  was  adopted  in  1801,  provides 
the  form  of  abstract  for  both  civil  and  crim- 
inal cases,  and  in  the  part  of  such  rule, 
which  relates  to  the  matter  now  under  con- 
sideration. It  Is  directed  that  counsel  shall 
"set  out  BO  much  of  the  bill  of  exceptions 
or  statement  as  is  necessary  to  show  the  rul- 
ings of  the  court  to  which  exceptions  were 
takoi  during  tbe  progress  of  the  trial,  and 
If  the  evidence,  or  any  part  thereof,  be  em- 
braced in  the  bill  of  exceptions  or  statement, 
epitomize  the  same  carefully,  so  as  only  to 
presoit  the  matter  in  regard  to  which  error 
is  alleged."  It  will  thus  be  seen  that,  not 
only  was  there  disregard  of  the  statute  in 
relation  to  settlement  of  bills  of  exception, 
but  that  appellant  utterly  disregarded  such 
rule  of  this  court  and  a  rule  which  all  must 
concede  not  only  to  be  absolutely  fair  and 
reasonable,  but  absolutely  necessary  for 
proper  presentation  of  cases  on  appeal.  If 
counsel  will  persist  In  disregarding  the  sta1> 
utes  of  tbe  state  and  the  rules  of  the  court, 
their  clients  must  often  suffer  through  their 
neglect.  There  are  certain  duties  Incumbent 
upon  attorneys  which  they  must  not  expect 
this  court  to  perform  for  them,  however 
much  they  may  like  to  be  relieved  there- 
from. 

We  wonld  say  that,  Inasmncb  as  this  was 
a  criminal  case,  we  have  taken  the  trouble 
to  carefully  read  the  purported  abstract 
herein,  and  have  considered  all  of  tbe  ex- 
ceptions taken  by  appellant,  and  are  con- 
vinced that  it  would  be  almost  an  impos- 
sibility to  find  a  case  freer  from  error  than 
was  the  one  at  bar,  and  that  the  appellant 
herein  Is  in  no  manner  prejudiced  by  our 
rulings  on  matters  of  procedure.  Inasmuch 
as  the  record  contains  no  assignments  of  er- 
ror, except  such  as  are  based  upon  matters 
contained  In  the  purported  bill  of  exceptions, 
and  no  proper  abstract  being  of  record,  and 
there  being  therefore  nothing  before  this 
court  touching  the  merits  of  tbe  cause,  the 
motion  of  the  trial  court  refusing  a  new 
trial  and  the  Judgment  of  such  trial  court 
herein  are  affirmed. 


OBDDIS  V.  NORTHWESTERN  TRUST  CO. 
OF  OMAHA,  NEB.,  et  al. 

(Supreme  Court   of   South   Dakota.     Sept   4, 
1900.) 

1.  Mortgages  (|  298*)  —  Comfeixino  Satis- 
faction—Amount  Due. 

A  mortgage  securing  a  number  of  notes 
was  assigned  by  the  mortgagee  to  a  trust  com- 
pany, which  had  an  arrangement  with  tbe  mort- 
gagor In  the  nature  of  a  building  and  loan  con- 


Tar  other  eaaw  •••  mud*  toplo  and  (sctlan  NUMBER  in  Deo.  A  Am.  Die*-  INT  to  datai  a  R«portor  IndoxM 

Digitized  by  VjOOQ  l€ 


5SS 


122  NORTHWESTERN  REPORTER. 


(S.D. 


tract.  The  mortgagee  retained  a  miniber  of  the 
notes,  which  he  turned  over  to  the  trust  com- 
pany as  fast  aa  it  paid  him  the  money  therefor. 
The  trust  company  defaulted  on  its  agreement 
nrith  the  mortgagor,  and  was  subsequently  dis- 
solTed.  Held,  that  the  grantee  of  the  mortgagor, 
having  benefited  by  the  dedaction  of  the  amount 
of  the  mortgage  from  the  purchase  price,  could 
not  quiet  title  against  the  mortgage,  on  pay- 
ment merely  of  the  notes  still  held  by  the  mort- 
gagee, but  must  also  pay  into  court,  for  whoever 
might  be  entitled  to  the  assets  of  the  trust  com- 
pany, what  it  had  paid  the  mortgagee  above  the 
amount  received  from  the  mortgagor:  it  being 
immaterial  that  the  trust  company  had  defaulted 
on  its  contract  with  the  mortgagor,  or  whether 
the  assignment  of  the  mortgage  passed  to  the 
trust  company  the  title  to  the  notes  or  not. 

[Ed.  Note.— For  other  cases,  see  Mortgages, 
Cent.  Dig.  f  841 ;    Dec.  Dig.  S  208.*] 

2.   MOBTOAGES    (§   298*)  —  COMPEIXINO   SaTIS- 

FAcnow— Amount  Due— Estoppel. 

Marking  the  notes  "Paid,"  as  they  were 
turned  over  to  the  trust  company,  created  no 
estoppel  to  claim  that  the  word  "Paid,"  meant 
only  that  the  notes  had  been  taken  up  in  ac- 
cordance with  the  agreement  with  the  mort- 
gagee. 

[Ed.  Note. — For  other  cases,  see  Mortgages, 
Cent.  Dig.  {  862;    Dec.  Dig.  i  298.*] 

S.   COBPOEATIONS   (J   617*)— DlSSOLUTIOK— EF- 
FECT ON  Credits. 

The  property  of  a  corporation  does  not  es- 
cheat or  revert  to  the  grantor  thereof  upon  its 
dissolution,  so  that  debts  due  a  corporation 
would  not  be  extinguished,  but  would  go  to  the 
person  legally  entitled  to  its  property. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent.  Dig.  SS  244S-2430 ;  Dec.  Dig.  i  617.*] 

Appeal  from  Circuit  Court,  Beadle  County. 

Action  by  John  B.  Geddia  against  the 
Northwestern  Trust  Company  of  Omaha, 
Neb.,  and  others,  in  which  Alexander  Bu- 
chanan intervened.  From  a  judgment  for 
intervener,  and  an  order  denying  a  new  trial, 
plaintiff  appeals.    Affirmed. 

A.  W.  Wilmartb,  for  appellant.  Henry  C. 
Hinckley  and  W.  A.  Lynch,  for  respondent 
Buchanan. 


CORSON,  J.  This  is  an  action  by  the 
plaintiff  to  quiet  title  to  two  certain  lots  In 
the  city  of  Huron,  of  which  he  claims  to  be 
the  owner,  and  alleges  in  his  complaint  in 
substance  that  the  Woman's  Relief  Corps,  a 
Dakota  corporation,  was  the  former  owner 
of  the  property,  and  while  such  owner  mort- 
gaged the  same  to  the  defendant  Miner  to 
secure  certain  notes  executed  by  the  said 
Woman's  Relief  Corps  for  the  sum  of  $1,200; 
that,  subsequently  to  the  execution  of  said 
mortgage  by  the  said  Relief  Corps,  that  cor- 
poration conveyed  the  property  to  the  plain- 
tiff ;  tliat  all  of  said  mortgage  has  been  paid, 
except  the  sum  of  $250  and  Interest  thereon, 
which  is  due  to  the  original  mortgagee.  Min- 
er; that  Miner  transferred  the  said  mort- 
gage and  notes  to  the  Northwestern  Trust 
Company,  a  Nebraska  corporation;  that  the 
said  trust  company  was  dissolved  by  a  Judg- 
ment of  the  court  of  Nebraska,  and  that  no 
successor,  assignee,  or  trustee  had  been  ap- 


pointed by  that  court  to  wind  np  the  affairs 
of  said  corporation;  and  the  plaintiff  de- 
manded Judgment  that,  upon  the  payment  of 
$250  and  Interest  due  and  unpaid,  the  said 
Relief  Corps  notes  and  mortgage  be  canceled 
by  Judgment  of  the  court  Neither  the 
Northwestern  Trust  Company  nor  Philip 
Lawrence,  trustee  of  said  company  in  the 
purchase  of  the  Miner  mortgage,  answered 
01'  appeared  in  the  action.  Before  the  trial, 
however,  one  Alexander  Buchanan,  wt») 
claimed  to  be  the  owner  of  all  the  stock  of 
the  Northwestern  Trust  Company,  by  leave 
of  court  filed  a  complaint  in  Intervention, 
alleging  in  substance  that  the  said  Trust 
Company  of  Nebraska  had  been  dissolved 
and  no  trustee  or  assignee  appointed  by  the 
court;  that  that  company  had  l)ecome  the 
assignee  of  the  said  Miner  morti;R?e.  an'l 
had  paid  a  large  amount  thereon,  to  which 
he  was  entitled  as  such  sole  .stockholder  to 
be  reimbursed  by  the  plaintiff — he,  the 
plaintiff,  having  purchased  said  property  sub- 
ject to  the  said  mortgage. 

The  court  found  the  facts  substantially 
as  set  out  in  Buchanan's  complaint  of  Inter- 
vention, and  made  conclusions  of  law  and 
entered  a  Judgment  In  favor  of  the  claim  of 
said  Buchanan  to  the  extent  of  $454.54, 
which  the  court  adjudged  should  be  paid  to 
the  clerk  of  courts  by  the  plaintiff.  In  addi- 
tion to  the  sum  of  about  $3S0,  including  in- 
terest, the  balance  due  Miner  on  account  of 
said  mortgage.  From  this  judgment  and 
order  denying  a  new  trial,  the  plaintiff  hna 
appealed,  assigning  as  the  principal  error 
that  the  court  erred  In  Its  conclusions  of 
law  and  Judgment  requiring  the  plaintiff  to 
deposit  with  the  clerk  of  courts  the  $454.54 
above  specified,  before  t)eing  entitled  to  the 
cancelation  of  the  said  mortgage ;  and  this 
Is  suljstantially  the  only  question  Involved 
In  this  case  and  that  will  be  considered  in 
this  opinion. 

In  order  to  more  clearly  comprehend  the 
question  involved,  the  material  findings  of 
the  court  will  be  given  in  substance:  That 
the  Woman's  Relief  Corps,  a  corporation 
organized  under  the  laws  of  the  state  of 
South  Dakota,  purchased  the  property  in 
controversy,  and  gave  a  mortgage  upon  the 
same  for  $1,200  to  the  defendant  William 
L.  Miner  to  secure  12  notes,  of  $100  each, 
which  mortgage  and  notes  bear  date  of 
April  13,  1903;  that  on  the  1st  day  of  Au- 
gust, 1903,  the  said  Miner  sold,  assigned, 
and  delivered  the  said  mortgage  to  Philip 
Lawrence,  as  trustee  for  the  Northwestern 
Trust  Company,  and  that  said  Miner  at  the 
time  retained  the  notes,  secured  by  said 
mortgage,  which  had  not  been  paid  by  the 
Woman's  Relief  Corps;  that  subsequent  to 
the  execution  and  delivery  of  the  said  mort- 
gage the  Woman's  Relief  Corps  sold  and 
transferred  the  said  property  to  the  plaintiff 
on  November  29,  1905,  subject  to  said  mort- 


•For  other  cues  ««•  same  topic  and  section  MUMB£R  In  Dec.  ft  Am.  Digs.  U07  to  date,  *  Reporter  Indexes 


Digitized  by  LjOOQIC 


8.D.) 


GBDDIS  V.  NORTHWESTERN  TRUST  CO. 


589 


gage;  that  after  said  assignment  of  said 
mortgage  the  Northwestern  Trust  Company 
paid  eight  of  said  notes,  of  $100  each,  to  the 
defendant  William  L.  Miner,  together  with 
interest  thereon,  amounting  to  the  total  sum 
of  $832.03,  and  at  the  time  of  said  payments 
the  said  Miner  delivered  said  notes  to  Philip 
Lawrence,  trustee  of  the  said  Northwestern 
Trust  Company,  and  these  notes  upon  their 
face  were  each  marked  "Paid";  that  the 
said  Woman's  Relief  Corps  paid  one  of  the 
said  $100  notes  and  interest  and  $50  on  an- 
other note,  with  Interest,  July  15,  1904;  that 
the  said  Miner  still  retains  three  notes,  on 
one  of  which  there  baa  been  $50  paid,  with 
interest  to  July  15,  1904.  The  court  then 
proceeds  to  find  the  facts  relating  to  the 
transaction  between  the  Northwestern  Trust 
Company  and  the  Woman's  Relief  Corps, 
which  in  the  view  we  take  of  the  case  will 
not  be  necessary  to  be  reproduced  in  this 
opinion,  further  than  to  say  that  the  con- 
tract Is  in  the  usual  form  of  contracts  of 
building  and  loan  associations,  and  provided 
for  a  loan  to  the  Woman's  Relief  Corps  of 
$2,000,  bearing  date  April  13, 1903. 

The  court  further  finds  that  on  the  said 
contract  the  Woman's  Relief  Corps  paid  the 
said  trust  company  the  sum  of  $257,  $230 
of  which  should  apply  on  the  amount  paid 
by  the  corporation,  and  which  amount  seems 
to  have  been  deducted  from  the  amount  paid 
by  the  trust  company  on  account  of  said 
notes  and  mortgage.  The  court  further  finds 
that  the  trust  company  defaulted,  and  did 
not  comply  with  the  terms  of  its  contract 
with  the  Woman's  Relief  Corps,  and  that 
the  Woman's  Relief  Corps  at  all  times  com- 
piled with  the  terms  of  its  contract  on  its 
part,  and.  made  payments  after  said  default 
fty  the  Northwestern  Trust  Company,  and 
has  been  ready  and  willing  at  all  times,  and 
still  is  ready  and  willing,  to  continue  the 
payments  and  comply  with  the  terms  of  its 
contract ;  that  the  charter  of  the  defendant 
Northwestern  Trust  Company  has  been  dis- 
solved by  a  competent  court  in  the  state  of 
Nebraska,  and  no  successor,  assignee,  or 
trustee  appointed  by  that  court  to  wind  up 
the  afTairg  of  the  company.  The  court  fur- 
ther finds  the  amount  due  the  said  Miner 
on  the  notes  retained  by  him,  and  concludes 
that  Miner  is  entitled  to  the  payment  of 
said  sum,  and  also  that  the  plaintiff  should 
be  required  to  pay  to  the  clerk  of  courts 
$474.54,  and  that  upon  such  payment  the 
mortgage  should  be  canceled  and  plaintiff's 
title  quieted. 

The  plaintiff  contends  that:  "The  court 
erred  in  its  conclusions  of  law  and  In  its  de- 
cree by  directing  the  plaintifE  and  appellant 
to  pay  the  clerk  of  courts  for  the  successors 
of  the  Northwestern  Trust  Company  the  said 
sum  of  $474.54,  on  the  ground  (1)  that  the 
Northwestern  Trust  Company  defaulted  and 
failed  to  comply  with  its  contract  set  out  in 
the  twelfth  finding  of  fact,  by  falling  to 
pay  the  money  therein  agreed  to  be  paid  to 


the  Woman's  Relief  Corps;  (2)  that  the  as- 
signment of  the  William  L.  Miner  mortgage 
to  the  Northwestern  Trust  Company  did  not 
carry  with  it  the  notes  which  it  was  given 
to  secure,  and  which  were  retained  by  W. 
L.  Min^r  until  paid,  and  when  paid  were  so 
marked  upon  their  face,  and  thereby  the  as- 
signment of  said  mortgage  gave  the  said 
company  no  lien  on  the  property  of  the  Wo- 
man's Relief  Corps;  (3)  that  the  charter  of 
the  Northwestern  Trust  Company  has  been 
dissolved,  annulled,  and  terminated  by  a  de- 
cree of  the  Supreme  Court  of  Nebraska, 
where  said  corporation  was  organized,  with- 
out providing  in  said  decree  for  a  receiver 
or  any  successor  to  the  interests  of  the 
Northwestern  Trust  Company." 

We  are  of  the  opinion  that  the  court  was 
right,  and  that  its  decree  requiring  the 
amount  of  $474.54  deposited  with  the  clerk 
was  clearly  correct  Either  the  stockholders 
of  the  corporation,  or  the  creditors  of  th% 
corporation,  are  entitled  to  be  reimbursed 
by  the  plaintiff  the  money  paid  by  that  cor- 
poration on  account  of  the  Miner  mortgage 
in  excess  of  the  amount  it  had  received  t'roiu 
the  Woman's  Relief  Corps,  and  that  it  was 
the  duty  of  the  court  as  a  court  of  equity 
to  require  such  payment  to  I>e  made  to  the 
clerk  for  the  benefit  of  the  parties  entitled 
thereto,  without  determining  in  this  action 
who  those  parties  in  fact  were.  The  court 
in  its  findings  found  very  fully  the  facts  re- 
lating to  the  transaction  between  the  Wo- 
man's Relief  Corps  and  the  trust  company; 
but  in  the  view  we  take  of  the  case  this 
transaction  was  not  material  in  this  case, 
except  so  far  as  it  enabled  the  court  to  deter- 
mine the  amount  that  had  been  paid  by  the 
trust  company  in  excess  of  the  amount  that 
it  had  received  from  the  Woman's  Relief 
Corps,  and  that  the  case  is  to  be  treated  pre- 
cisely as  though  the  trust  company  had 
paid  for  the  benefit  of  the  plaintiff  the  sum 
of  $454.54,  and  which  it  became  the  duty  of 
the  plaintiff  to  refund  to  that  compauy,  be- 
fore the  plaintiff  would  be  entitled  to  a  can- 
cellation of  the  mortgage,  and  that  the  ques- 
tion of  whether  or  not  the  trust  company 
had  fully  complied  with  its  agreement  with 
the  Relief  Corps  was  immaterial  in  this  case. 
And  In  our  opinion  it  is  not  material  whether 
the  assignment  of  the  mortgage  made  by 
Miner  to  the  trust  company,  or  to  Lawrence, 
its  trustee,  carried  with  it  the  title  to  the 
notes  or  not;  for  its  right  to  reimburse  does 
not  depend  upon  the  question  of  whether  it 
acquired  title  to  the  notes  or  not,  but  to  the 
fact  that  the  trust  company  advanced  the 
money  in  payment^  of  these  notes,  which  lu 
equity  ought  to  be' refunded  to  It,  or  to  the 
parties  entitled  to  it  as  successors  of  the 
trust  company.  In  other  words,  the  plain- 
tiff having  purchased  the  property  subject 
to  this  mortgage,  presumptively  the  amount 
of  this  mortgage  had  been  deducted  from  the 
purchase  price,  and  clearly,  therefore,  the 
trust  company  having  paid  the  $454.54  on 


Digitized  by  VjOOQ  l€ 


590 


122  NORTHWESTERN  REPORTER. 


OS-Dt. 


aeconnt  of  the  mortgage,  equity  would  com- 
pel the  plaintiff  to  refund  that  aum  before 
being  entitled  to  a  cancellation  of  the  mort- 
gage. Had  Miner  retained  the  notes  and 
mortgage,  it  would  not,  we  apprehend,  be 
claimed  that  the  plaintiff  would  be  entitled 
to  a  cancellation  of  the  mortgage  until  the 
amount  due  on  the  same  had  been  paid  to 
Miner.  Clearly,  the  trust  company,  by  tak- 
ing an  assignment  of  the  mortgage  and  pay- 
ing the  amount  found  to  have  been  paid  by 
it  on  the  said  notes  and  mortgage,  became 
subrogated  to  Miner's  rights  as  to  payment 
of  the  same,  and  in  our  view  of  the  case  the 
marking  of  the  notes  paid  as  they  were  tak- 
en up  from  time  to  time  by  tlie  trust  com- 
pany does  not  estop  it  from  claiming  that 
the  word  "Paid"  was  simply  intended  to 
mean  that  it  had  taken  up  the  notes  In  ac- 
cordance with  its  agreement  with  Miner. 

The  further  contention  of  the  appellants, 
that  "the  debts  of  a  corporation,  either  due 
to  or  from  It,  are  totally  extinguished  by  its 
dissolution,"  though  in  early  times  held  as 
law,  bas  by  the  modern  cases  been  abrogated 
and  overruled.  In  the  case  of  Wilson  t. 
lieary,  120  N.  0.  90,  26  S.  E.  630,  38  L.  R.  A. 
240,  68  Am.  St.  Rep.  778,  the  question  as  to 
the  effect  of  the  dissolution  of  a  corporation 
is  so  fully  considered  and  discussed  that  we 
feel  justified  in  quoting  quite  largely  from 
the  decision.  In  tliat  case  the  learned  court 
says:  "It  is  true  it  was  held  in  an  opinion 
by  Gaston  J.,  in  Fox  v.  Horah,  36  N.  O.  358, 
86  Am.  Dec.  48,  that  by  the  common  law, 
upon  the  dissolution  of  a  corporation  by 
the  expiration  of  its  charter  or  otherwise, 
its  real  property  reverted  to  the  grantor,  its 
personal  property  escheated  to  the  state, 
and  its  choses  in  action  ■  became  extinct, 
and  hence  that,  on  the  expiration  of  the 
charter  of  a  bank,  a  court  of  equity  would 
enjoin  tbe  collection  of  notes  made  payable 
to  tbe  bank  or  its  cashier ;  the  debtors  being 
absolved  by  the  dissolution.  Judge  Thomp- 
son (5  Thomp.  Corp.  ^  GtJi)  refers  to  this 
decision  'in  accordance  with  the  barbarous 
rule  of  the  common  law'  as  'probably  the 
last  case  of  its  kind,'  and  notes  that  it 
has  since  been,  in  effect,  overruled  in  Von 
Glahn  v.  De  Rosset,  81  N.  C.  467,  and  it  is 
now  expressly  overruled  by  us.  Chancellor 
Kent  (2  Kent,  Com.  307,  note),  says:  'This 
rule  of  the  common  law  has,  in  fact,  become 
obsolete  and  odlona'  And  elsewhere  he 
stoutly  denied  that  it  bad  ever  been  the  rule 
of  the  common  law,  except  as  to  a  restricted 
class  of  corporations.  6  Thomp.  Corp.  { 
6730.  The  subject  is  thoroughly  discussed 
by  Gray  on  Perpetuities,  ti  44-51,  and  he 
demonstrates  that  my  Lord  Coke's  doctrine 
rested  on  the  dictum  of  a  fifteenth  century 
Judge  (Mr.  Justice  Coke,  In  the  Prior  of 
Spaulding's  Case  [1467]  7  Edw.  IV.  10-12), 
and  is  contrary  to  the  only  cose  deciding  the 


point  (Johnson  ▼.  Norway  [1622]  Winch,  37), 
though  Coke's  statement  has  often  been  re- 
ferred to  as  law.  But,  whatiever  the  extent 
of  this  role  at  common  law,  if  it  was  the  rule 
at  all,  it  was  not  founded  upon  Justice  and 
reason,  nor  could  it  be  approved  by  experi- 
ence, and  lias  been  repudiated  by  modem 
courts.  The  modem  doctrine  is,  as  held  by 
us,  that  'upon  dissolution  the  title  to  real 
property  does  not  revert  to  the  original  gran- 
tors or  their  heirs,  and  the  personal  property 
does  not  escheat  to  tbe  state.'  6  Thomp. 
Corp.  I  6746;  "Owen  v.  Smith,  31  Barb.  (N. 
Y.)  641 ;  Towar  v.  Hale,  46  Barb.  (N.  Y.)  361. 
The  crude  conceptions  of  corporations  nat- 
urally entertained  in  a  feudal  and  semlbar- 
barous  age,  when  they  were  few  in  number 
and  Insignificant  in  value  and  functions,  by 
even  so  able  a  man  as  Sir  E^lward  Coke,  and 
the  fanciful  reason  given  by  him  (Co.  Lltt 
136)  for  ttte  reverter  of  their  real  estate,  to 
wit,  that  a  conveyance  to  them  must  neces- 
sarily be  a  qualified  or  base  fee,  have  long 
since  become  outworn  and  discredited.  That 
which  is  termed  'the  common  law'  is  simply 
the  'right  reason  of  the  thing'  in  matters  as 
to  which  there  is  no  statutory  enactment. 
When  It  is  misconceived,  and  wrongly  declar- 
ed, the  common  rule  is  equally  subject  to  be 
overruled,  whether  it  is  an  ancient  or  recent 
decision." 

In  a  note  to  this  case  in  38  L.  R.  A.  240, 
it  is  said:  "The  above  case,  by  overruling 
en  early,  decision  of  the  same  court  as  based 
on  an  unjust  rule  of  the  common  law,  prob- 
ably marks  the  final  disappearance  from  the 
courts  of  that  now  'obsolete  and  odious' 
rule."  In  view  of  this  decision  and  the  note 
to  the  same,  we  do  not  deem  it  necessary  to 
cite  further  authorities. 

The  Judgment  of  tbe  circuit  court,  and 
order  denying  a  new  trial,  are  affirmed. 

WHITING,  J.,  taking  no  part  in  this  deci- 
sion. 


WHITTAKER  et  al.  v.  CITY  OF  DEAD- 
WOOD  et  ai. 

(Supreme  Court  of  South  Dakota.    Sept  4, 
1909.) 

1.  MUNIOIPAI.  OOBPOBATIONS  (J  4S4*)— STKKET 

Improvements  —  AssBSSMENTB  —  Pbopebtt 

Liable— Public  Pbopebtt. 

Property  owned  by  the  federal  government 
is  exempt  from  special  assessments  for  street 
improvements. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  (  1045;  Dec.  Dig.  i 
434.*] 

2.  Municipal  Cobporationb  (i  434*)— Stbekt 
Imfboveuentb — Pbopebtt  Liable — Public 
Pbopebtt. 

An  assessment  for  local  improvements  of 
property  of  a  state,  county,  or  city  is  not  tax- 
ation, within  Const,  art.  11,  (  6,  providing  that 


•Tor  other  cuu  lea  um»  topic  and  nctlos  NUMBBR  In  Dm.  A  Am.  Dies.  ISO?  to  date,  A  Reportw  Indaxu 


Digitized  by  VjOOQ  l€ 


S.D.) 


WHITTAEBB  ▼.  C3ITY  OP  DEADWOOD. 


691 


the  pTopeitf  of  a  itate,  county,  or  manidpal 
corporation  shall  be  exempt  from  taxation. 

[Ed.  Note.— Fox  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  t  IMS:  Dec.  Dig.  { 
434.*] 

3.  MUNICIPAt  COBPOBATIONS  (J  302*)— PUB- 
UC    IVPBOVEMENT    OBDINARCE  —  PASSAQB — 

Tea  and  Nat  Vote. 

Where  a  city  council  had  eight  conncil 
members,  and  the  record  of  a  vote  on  a  munici- 
pal improTement  ordinance  showed  that  eight 
members  voted  in  favor  thereof,  the  record  was 
equivalent  to  one  stating  that  eight  members 
voted  yea,  under  Rev.  PoL  Code,  g  1209,  requir- 
ing the  passage  of  such  resolution  by  yea  and 
nay  vote. 

[EM.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  i  806;  Dec.  Dig.  i 
302.*] 

4.  MumciFAi,  Corpobations  a  407*)  — Spe- 

CIAI,  ASSESSMENTS— FBONT-FOOT  Kni.E. 

Rev.  Pol.  Code,  f  1304,  authorizing  assess- 
ment of  cost  of  local  improvements  by  the  front- 
foot  rule,  is  constitutional. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  (S  1003,  1004;  Dec. 
Dig.  I  407.*i 

5.  MnNICIPAL  COBPOBATIONS  (J  450*)- Stbeet 
Pavino— Obdinance  —  Sep  abate  Stbeets  — 
Join  DEB. 

Under  Rev.  Pol.  Code,  t  1303,  providing 
that  whenever  a  city  council  shall  deem  it  nec- 
essary to  improve  any  street,  alley,  or  highway 
within  the  city  limits,  for  which  a  special  as- 
sessment is  to  be  levied,  the  city  council  shall 
by  resolution  declare  such  work  necessary,  the 
word  "street"  was  used  to  indicate  the  subject 
of  tbe  Improvement  and  hence  the  city  could 
not  Join  two  or  more  streets  of  nnequal  width 
in  a  single  assessment  district 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  (  1073;    Dec.  Dig.  g 

6.  MONICIPAI.  COBPOBATIONS  (S  804*)— STBBET 
IHPBOVKMENT— ReSOLTJTION  —  DESCBIPTION 
OF    IMFBOVEMENT. 

A  resolution  for  paving  a  street  is  invalid, 
unless  it  specifies  the  ettent  of  the  work  by 
showing  height,  width,  and  thickness  of  curbing 
to  be  set,  or  refers  to  plans  and  specifications 
therefor  then  on  file. 

IEj6.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  |  S12:  Dec.  Dig.  i 
304.*] 

7.  Municipal  Cobpobationb  (8  296*)— Stbeet 
IifPBOTEMBNT  —  Paving  —  Auditob'b  Esti- 
KATB— Filing. 

Rev.  Pol.  Code,  S  1246,  provides  that  the 
cit^  auditor  shall  make  an  estimate  of  the  work 

{iroposed  to  be  done  by  the  city,  and  before  a 
evy  by  the  city  council  of  any  special  tax  shall 
report  to  the  council  a  schedule  of  all  parcels 
or  lots  of  land  subject  to  the  proposed  assess- 
ment, and  tbe  amount  of  such  tax  or  assess- 
ment which  it  may  be  necessary  to  levy  on  such 
lota  or  parcels  of  land.  Held,  that  such  require- 
ment is  mandatory,  and  a  condition  precedent 
to  the  making  of  a  special  assessment  for  street 
improvement 

[Ed.  Note.— For  other  caxes,  see  Municipal 
Corporations,  Cent  Dig.  tt  792,  793 ;  Dec.  Dig. 
i  296.*] 

Appeal  from  Circuit  Court,  Lawrence 
Ocninty. 

Suit  by  Thomas  Whittaker  and  others 
against  the  City  of  Deadwood  and  another. 
Decree  for  defendants,  and  plaintiffs  ap- 
peal.   Revised. 


Samuel  C  PoUey,  for  appellants.  Nor- 
man T.  Mason,  for  respondents. 

McCOT,  X  This  action  Involves  the  va- 
lidity of  certain  special  assessments  made 
for  local  Improvements  In  paving  certain 
streets  In  the  city  of  Deadwood.  The  plain- 
tiffs, protesting  property  owners  affected  by 
such  assessments,  brought  this  action  In  the 
circuit  court  of  Lawrence  county  for  the 
purpose  of  having  set  aside  and  declared  un- 
lawful tbe  said  assessments,  and  to  per- 
manently enjoin  the  city  treasurer  from  col- 
lecting tbe  same.  The  defendants  answered, 
and  a  trial  was  had  before  the  circuit  court 
without  a  Jury,  resulting  in  findings  and 
Judgment  in  favor  of  the  defendants.  The 
plaintiffs,  as  appellants,  bring  tbe  cause  to 
this  court  by  appeal,  challenging  the  legality 
of  the  findings  and  judgment  of  the  trial 
court 

It  Is  contended  by  the  appellants  that,  aft- 
er the  city  council  of  the  city  of  Deadwood 
had  passed  resolutions  declaring  such  pub- 
lic improvement  necessary,  more  than  a  ma- 
jority of  the  property  owners  afl(ected  by 
such  special  assessment  filed  with  the  city 
auditor  written  protests  against  such  Im- 
provement. It  appears  from  the  record  that 
the  said  public  Improvement  comprises  a 
total  frontage  of  7,475  feet  and  that  within 
the  time  prescribed  by  section  1303,  Rev. 
Pol.  Code,  owners  of  3,374  feet  of  the  proper- 
ty fronting  on  the  portions  of  said  streets 
intended  to  be  paved  filed  their  written  pro- 
tests against  the  said  improvement  Tbe 
plaintiffs  further  contend  that  774  feet  of 
the  amount  of  said  frontage  is  public  prop- 
erty not  liable  for  such  special  assessment, 
and  should  not  be  counted  In  estimating  a 
majority  of  the  ownership  of  the  property 
affected,  and  that,  after  deducting  the  said 
774  feet  frontage,  the  protesting  plaintiffs 
constituted  a  majority  of  the  property  own- 
ers affected  by  such  special  assessment,  and 
that  by  reason  thereof  the  defendant.  Its 
city  council  and  officers,  had  no  author- 
ity or  Jurisdiction  to  proceed  with  or  com- 
plete said  special  assessment  In  this  con- 
tention we  are  of  tbe  opinion  that  the  plain- 
tiffs are  In  error.  It  appears  from  tbe  rec- 
ord that,  of  the  said  774  feet  claimed  to 
be  exempt  from  said  special  assessment,  225 
feet  thereof  belongs  to  the  United  States, 
and  that  the  remaining  549  feet  belongs  to 
the  city  of  Deadwood,  the  school  district  of 
Deadwood,  and  Lawrence  county;  and, 
while  we  are  of  the  opinion  that  the.  225 
feet  owned  by  the  United  States  government 
Is  exempt  from  said  special  assessment,  we 
are  also  of  the  opinion  that  the  property 
fronting  on  such  pavement  owned  by  Law- 
rence county,  the  school  district  of  Dead- 
wood,  and  the  city  of  Deadwood  Is  not  ex- 
empt A  special  assessment  for  a  local 
Improvement   by   a    municipal    corporation 


•»or  other  oasM  see  same  topio  and  section  NUUBBB  In  D«>.  *  Am.  Digs.  1807  to  date.  *  Rsporter  IndazM 


Digitized  by  VjOOQ  l€ 


592 


122  NORTHWESTERN  REPORTER. 


(S.D. 


against  the  property  of  tbe  county  or  mu- 
nicipality is  not  wltliin  the  meaning  of  sec- 
tion 5,  art.  11,  State  Const,  providing  ,that 
tbe  property  of  the  state,  county,  and  munic- 
ipal corporations,  both  real  and  personal, 
shall  be  exempt  from  taxation.  It  has  been 
held  by  this  court  (Winoua  &  St.  P.  Ry.  Co. 
V.  Watertowii,  1  S.  D.  46,  44  N.  W.  1072> 
that  special  assessment  for  local  street  im- 
provement is  not  taxation.  It  has  been  held 
in  many  other  Jurisdictions  under  similar 
provisions  that  special  assessment  for  lo- 
cal Improvement  is  not  taxation,  and  that 
snob  si)eclal  assessment  is  not  in  conflict 
with  a  Constitution  or  statute  exempting 
such  property  from  taxation.  McIiCan  Coun- 
ty V.  Bloomlngton,  106  111.  209;  Adams  Oo. 
V.  Qulncy,  130  111.  t566.  22  N.  E.  624,  6  I*  R. 
A.  155,  and  note;  Society  v.  Mayor,  116 
Mass.  181,  17  Am.  Rep.  153;  Sioux  City  v. 
School  Dist.,  55  Iowa,  150,  7  N.  W.  488; 
Edwards  &  Co.  v.  Jasper  Co.,  117  Iowa,  305, 
90  N.  W.  1006,  94  Am.  St.  Rep.  801;  Wash- 
burn &  Co.  r.  Minnesota,  73  Minn.  343.  76 
N.  W.  204;  New  Orleans  v.  Warner,  175  U. 
S.  140,  20  Sup.  Ct.  44,  44  L.  EH.  96;  Yates 
V.  Milwaukee,  92  Wis.  352,  66  N.  W.  248.  In 
McLean  County  v.  Bloomlngton,  supra,  it 
is  held  that  tbe  municipality  was  authorized 
to  make  special  assessment  for  local  Im- 
provements, without  restriction  to  the  own- 
ership of  the  property  to  be  assessed.  The 
power  conferred  upon  cities  to  make  spieclal 
assessments  under  section  12.09,  Rev.  Pol. 
Code.  Is  not  restricted  as  to  the  ownership 
of  the  property  against  which  the  levy  may 
be  made. 

It  Is  further  contended  by  the  appellants 
that,  when  tbe  resolution  to  declare  the  said 
public  Improvement  necessary  was  before 
tbe  city  council,  no  yea  and  nay  vote  was 
taken  upon  the  passage  of  said  resolution, 
as  required  by  section  1209,  Rev.  Pol.  Code; 
but  in  this  contention  we  are  of  the  opinion 
that  tbe  appellants  are  in  error.  It  appears 
from  the  record  that  tbe  city  auditor  made 
(he  following  entry  in  tbe  minutes  of  tbe 
proceedings  relative  to  the  passage  of  said 
resolution:  "Roll  was  called  on  the  above 
resolution,  with  the  following  result:  Mem- 
Ijers  voting  In  favor  of  said  resolution: 
Messrs.  Pargo,  Croghan,  Benner,  Moffltt, 
Schllchting,  Selm,  Treber,  and  Hogarth. 
Tbe  entire  council  being  present  and  voting, 
the  resolution  was  declared  passed."  It  was 
held  In  the  cose  of  Mllbank  v.  Surety  Co., 
21  S.  D.  201,  111  N.  W.  561,  that  a  resolu- 
tion with  the  same  record  thereof  as  in  the 
case  at  bar  was  in  substantial  compliance 
with  section  1209,  Rev.  Pol.  Code,  It  ap- 
pears from  the  record  that  tbe  city  of  Dead- 
wood  has  eight  members  of  the  council.  It 
appears  that  eight  members  voted  in  favor 
of  this  resolution.  That  is  equivalent  to 
stating  that  eight  members  voted  yea. 

Plaintiffs  attack  the  "front-foot"  rule  for 
computing  the  amount  of  the  special  assess- 
ment against  each  parcel  of  land  as  unequal 


and  unjust  The  "front-foot"  rule  la  estab- 
lished by  the  statute  of  this  state  (Rev.  Pol. 
Code,  {  1304),  and  the  following  of  any  other 
rule  of  computation  would  be  invalid.  BluS- 
ton  V,  Miller,  33  Ind.  App.  521,  70  N.  E.  989. 
The  constitutionality  of  the  "front-foot"  rule 
has  many  times  been  assailed  in  other  Juris- 
dictions, and  the  great  weight  of  authority 
seems  to  be  in  favor  of  its  validity,  28  Cyc. 
1157.  The  Identical  statute  exists  in  North 
Dakota,  and  was  assailed  in  Rolpb  v.  Far- 
go, 7  N.  D.  640,  76.  N.  W.  242,  42  U  R.  A. 
646,  and  again  in  Webster  v.  Pargo,  9  N.  D. 
208;  82  N.  W.  732,  66  L.  R.  A.  156,  and  by 
able  and  exhaustive  opinions  held  constitu- 
tional. 

Appellants  furth^  contend  that  tbe  spe- 
cial assessment  in  question  is  void,  because 
more  than  one  street  and  streets  of  diffei^ 
ent  widths,  were  included  In  the  resolution 
and  in  the  same  paving  district  In  this  con- 
tention we  are  of  the  opinion  that  appel- 
lants are  right  This  species  of  Bi)ecial  tax- 
ation, under  whatever  rule.  Is  fraught  with 
such  opportunities  of  confiscation  and  in- 
equality that  Justice  to  property  owners  de- 
mands that  statutes  on  this  subject  should 
receive  a  strict  construction,  and  that  every 
statutory  requirement  should  be  strictly 
complied  with,  and  construed  to  the  end  that 
inequalities  and  confiscations  should  be  re- 
duced to  the  minimum.  We  are  of  the  opin- 
ion that  under  section  1303,  Rev.  Pol.  Code, 
no  authority  or  power  Is  granted  to  include 
more  than  one  street  in  a  single  pavement 
improvement  or  district  The  language  of 
thb  statute  is:  "Whenever  a  city  council 
shall  deem  it  necessary  to  pave  *  •  •  or 
otherwise  improve  any  street  alley,  or  high- 
way •  •  •  within  the  city  limits,  for 
which  a  special  assessment  is  to  be  levied, 
tbe  city  council  shall  by  resolution  declare 
such  work  or  Improvement  necessary. 
♦  •  •"  We  think  the  I^eglslature  used 
the  singular  "street"  advisedly  aud .  inten- 
tionally, and  could  not  have  intended  that 
two  or  more  streets  of  unequal  widths 
might  be  coupled  together  and  made  to  con- 
stitute a  single  assessment  district  thereby 
compelling  the  property  owner  of  a  little, 
narrow,  cross  or  side  street  to  pay  a  portion 
of  the  expense  of  paving  the  big,  wide  main 
street.  Hutchinson  v.  Omaha,  52  Neb.  345, 
72  N.  W.  218.  It  appears  from  the  record 
that  the  paved  portion  of  West  Lee  street  is 
8  feet  wide,  and  that  the  paved  portion  of 
Main  street  is  43  feet  wide,  and  that  tbe 
actual  cost  of  pavement  varied  from  $1.60 
per  front  foot  on  West  Lee  to  $9.49  on 
Main;  but  by  including  all  these  streets 
together  in  one  paving  district  and  dividing 
the  total  expense  by  the  total  number  of 
front  feet  on  all  tbe  streets  included  In  the 
district  the  average  cost  per  front  foot  is 
$7.04.  A  party  owning  a  25-foot  lot  facing 
Main  street,  and  also  abutting  lengthwise 
100  feet  on  West  Lee  street  would  pay  $035 
special  assessment  while  his  neighbor,  on 


Digitized  by  VjOOQ  l€ 


S.D.) 


WHITTAKER  v.  CITY  OF  DEADWOOD, 


an  Inalde  lot,  of  the  same  sise,  facing  on 
Main  street,  would  pay  $191.  The  party 
whose  lot  abutted  lengthwise  on  West  Lee 
street,  would  pay  $604  more  than  the  cost  of 
the  100-feet  pavement  abutting  on  West  Lee 
street,  and  which  $d04  would  go  to  pay  the 
expense  of  paving  on  Main  or  other  wider 
street  We  are  of  the  opinion  that  the  Leg- 
islature never  contemplated  any  such  in- 
equality, and  that  no  more  than  one  street 
should  be  Included  In  a  single  paving  dis- 
trict. In  some  jurisdictions  It  is  held  that 
streets  of  different  widths  may  be  Joined  In 
one  Improvement  district.  In  speaking  of 
this  rule  in  Illinois,  the  court,  In  Springfield 
T.  Green,  120  111.  2C9,  11  N.  B.  2G1,  and  In 
Wilbur  V.  Springfield,  123  III.  395,  14  N.  E. 
871,  says:  "While  many  streets  and  parts  of 
streets  are  embraced  In  one  scheme  of  Im- 
provement adopted  In  the  city,  yet  we  re- 
gard them  as  parts  of  the  same  Improve- 
ment. The  city  authorities,  in  adopting  the 
ordinance,  mnst  have  found  as  a  matter  of 
fact  that  these  streets  were  all  similarly 
sitnated  with  respect  to  the  improvement 
proposed,  so  as  to  Justify  the  treatment  of 
them  as  one  single  Improvement.  They 
were  all  to  be  paved  with  the  same  material 
In  the  same  manner,  and  the  fact  that  there 
was  a  difference  of  a  few  feet  In  the  width 
of  some  of  them,  In  our  opinion,  would  make 
no  difference."  But  If  such  streets  were  so 
situated  as  not  to  Justify  such  procedure,  by 
not  being  similarly  situated  and  the  differ- 
ence in  width  being  very  materially  differ- 
ent, the  Illinois  court  does  not  state  what 
the  rule  would  be.  This  rule  in  Illinois 
seems  to  be  hedged  around  and  qualified  by 
such  conditions  that  would  make  it  Inap- 
plicable to  the  case  at  bar. 

It  is  contended  further  by  appellants  that 
the  resolution  by  which  the  said  special  as- 
sessment was  declared  to  be  necessary  did 
not  suf&dently  describe  the  Improvement  of 
work  to  be  done.  In  that  It  did  not  specify 
the  thickness  of  the  concrete  foundation  or 
the  height  of  the  curbing.  While  section 
1303  does  not  prescribe  what  the  form  or 
substance  of  the  resolution  shall  be,  yet  It 
seems  to  be  generally  held.  In  the  absence 
of  statutory  requirement,  that  the  resolution 
must  reasonably  Inform  the  property  owner 
that  be  Is  to  be  assessed,  and  must  describe 
generally  the  nature  and  extent  of  the  Im- 
provement, and  the  resolution  may  refer  to 
plans  and  specifications  on  file.  If  the  Im- 
provement Is  a  sewer,  the  diameter  should 
be  Btated,  and  If  a  curbing,  the  height, 
length,  and  thickness,  so  that  the  property 
owner  might  determine  for  himself  what  the 
probable  expense  might  be.  In  order  that  he 
might  determine  whether  or  not  to  enter  pro- 
test against  the  Improvement.  28  Cyc.  981; 
AUanta  v.  Oabbett,  98  Oa.  266,  20  S.  E.  306 ; 
Holden  T.  Chicago,  172  111.  263,  50  N.  B. 
181.  Altfaongh  this  last  case  is  based  npon 
a  Btatnte  of  Illinois  requiring  that  the  ordi- 
nance should  show  the  nature  and  descrlp- 
122  N.W.-88 


tlon  of  the  Improvement,  still  this  statnte  Is 
the  same  as,  and  Is  not  broader  or  different 
than,  the  rule  In  the  absence  of  such  a  stat- 
ute prescribing  such  form.  We  are  of  the 
opinion  that  this  objection  to  the  said  resolu- 
tion is  well  taken — that  a  resolution  of  this 
character  should  specify  the  extent  of  the 
work  or  improvement,  by  showing  height, 
width,  and  thickness,  or  should  appropri- 
ately refer  to  the  plans  and  specifications 
therefor  then  on  file.  The  matter  of  the 
height  or  thickness  goes  to  the  extent  of  the 
improvement,  and  should  be  stated  In  the 
resolution. 

It  Is  next  contended  by  the  appellants  that 
the  assessments  In  question  are  void  because 
the  city  auditor  did  not  have  on  file  an 
estimate  of  the  work  to  be  done.  Section 
1246,  Rev.  Pol.  Code,  provides  that:  "The 
city  auditor  shall  make  or  cause  to  be  made 
an  estimate  of  the  work  proposed  to  be  done 
by  the  dty,  »  •  •  and  before  the  levy 
by  the  city  council  of  any  special  tax  upon 
property  In  the  city,  of  any  part  thereof, 
shall  report  to  the  city  council  a  schedule 
of  all  parcels  or  lots  of  land  which  may  be 
subject  to  the  proposed  special .  tax  or  as- 
sessmrait,  and  also  the  amount  of  such  spe- 
cial tax  or  assessment  which  It  may  be 
necessary  to  levy  on  such  lots  and  parcels  of 
land."  This  section  of  our  statute,  by  Its 
express  terms.  Is  a  component  part  of  and 
relates  to  the  procedure  of  special  assess- 
ments, and  should  be  construed  In  connec- 
tion with  all  the  other  parts  of  the  statute 
relating  to  that  subject.  It  seems  to  be  gen- 
erally held  that  a  statutory  provision  of  this 
character  Is  mandatory,  and  constitutes  a 
condition  precedent  to  the  making  of  such 
special  assessment.  28  Cyc.  986;  Hentig  y. 
Gilmore,  33  Kan.  234,  6  Pac.  304;  Moss  v. 
Falrbury,  66  Neb.  671,  92  N.  W.  721;  Pound 
V.  Chippewa  Co.,  43  Wis.  63;  Boonvllle  v. 
Cosgrove  (Mo.  App.)  95  S.  W.  314;  Dallas 
V.  Atkins  (Tex.  Civ.  App.)  82  S.  W.  780;' 
Ives  V.  Omaha,  51  Neb.  136,  70  N.  W.  961; 
Henderson  v.  Omaha,  60  Neb.  125,  82  N.  W. 
315;  Klrksvllle  v.  Coleman,  103  Mo.  App. 
215,  77  S.  W.  120;  Patereon  v.  Nutley,  72  N. 
J,  Law,  123,  69  Ati.  1032.  The  plain  Import 
of  the  statute  Is  that  before  any  levy  is  made 
the  city  auditor  shall  make  a  schedule  show- 
ing all  lots  of  land  against  which  the  assess- 
ment or  levy  Is  to  be  made,  and  showing  an 
estimate  of  the  amount  which  It  may  be 
necessary  to  assess  against  each  lot.  This 
must  be  done  while  the  matter  Is  In  the 
"proposed"  stage,  and  as  a  necessary  step 
preceding  the  levy.  The  utility  and  pur- 
pose of  such  schedule  Is  obvious.  It  fur- 
nishes a  basis  for  the  contract  and  levy, 
and  after  having  been  made  becomes  a  pub- 
lic record  for  the  Inspection  of  Interested 
parties,  that  they  may  be  Informed  as  to 
what  Is  proposed  to  be  done,  what  the  esti- 
mated cost  of  the  Improvement  will  be,  and 
what  property  Is  proposed  to  be  taxed.  This 
schedule  or  estimate,  thus  prepared  by  the 


Digitized  by  VjOOQ  IC 


594 


122  NORTHWESTERN  BEPOBTER. 


(S.D. 


auditor,  by  the  express  terms  of  the  stat- 
ute must  be  certified  under  oath  of  the  audi- 
tor, and  Is  the  prima  facie  evidence  of  what 
property  is  liable  to  the  special  assessment 
From  tlie  record  it  appears  that  no  schedule 
of  estimate,  as  required  by  section  1246  or 
otherwise,  was  ever  made  or  kept  on  file  by 
the  city  auditor,  and  we  are  of  the  opinion 
that  without  such  schedule  and  estimate  the 
said  contract  and  special  assessments  are 
absolutely  void. 

It  Is  further  contended  by  appellants  that 
the  resolution  declaring  the  said  pavement 
necessary,  passed  April  8,  1907,  and  under 
which  said  contract  was  made  and  said 
work  done,  was  repealed  fiy  a  subsequent 
resolution,  passed  June  3d  following;  but 
we  are  inclined  to  the  view  that  the  subse- 
quent resolution  was  Intended  as  supple- 
mentary or  amendatory  to  the  resolution  of 
April  8th. 

It  Is  contended  by  respondents  that  some 
of  the  questions  raised  by  appellants  In  their 
briefs  are  not  sufficiently  raised  by  proper 
assignment  of  error;  and,  while  the  assign- 
ments of  error  are  not  so  specific  In  some 
particulars  as  they  might  be,  yet  we  are  of 
the  opinion  that  the  assignments  of  error  are 
sufficient  to  raise  all  the  questions  passed 
upon  by  this  decision.' 

The  Judgment  of  the  circuit  court  is  re- 
versed, and  the  cause  remanded,  and  the 
circuit  court  is  hereby  ordered  and  directed 
to  enter  Judgment  permanently  enjoining  the 
collection  of  said  special  assessments. 


INK  et  al.  v.  BOHRIQ. 

(Supreme  €k)urt  of  South  Dakota.     Sept.  8, 
1909.) 

1.  CONTBACTB  (§  173*)— CORSTBUOTION— COVB- 

NANT8. 

Whether  covenants  in  a  contract  ate  de- 
pendent or  independent  is  to  be  determined  ac- 
cording to  the  intention  of  the  parties  as  appears 
from  the  instrument,  and  in  cases  of  doubt  they 
will  be  construed  as  dependent. 

[E3d.  Note.— For  other  cases,  see  Contracts, 
Cent.  Dig.  }  762;    Dec  Dig.  i  173.*] 

2.  VESnOB  AND  PUBCHASEB  (85  58,  76,  323*)- 
Contract  op  Sale — Covenants— Constbttc- 
TiON  —  Bbeach  ot  Contbact  —  Action  pob 
Damages. 

A  land  contract  provided  that  the  first 
party  (vendors)  covenanted  and  agreed  that,  if 
the  second  party  (vendee)  should  "first"  make 
payments  and  perform  the  covenants  mentioned 
on  his  part,  the  vendors  would  convey  by  war- 
ranty deed  and  abstract  showing  perfect  title 
the  following  described  premises,  followed  by 
a  provision  binding  the  vendee  to  pay  the  con- 
sideration in  a  specified  manner.  Held,  tliat 
the  vendee's  covenant  to  pay  was  dependent  and 
concurrent  with  the  vendors'  covenant  to  con- 
vey, and  hence  the  vendors  could  not  recover 
damages  for  the  vendee's  alleged  breach  of  con- 
tract without  tendering  a  deed  and  an  abstract 
showed  a  valid  title. 

[Ed.  Note.— For  other  cases,  see  Vendor  and 
Purchaser,  Cent.  Dig.  S{  88,  119,  948 ;  Dec  Dig. 
a  5S,  76,  323.*] 


Appeal  from  Circuit  Court,  Davidson  County- 
Action  by  C.  M.  Ink  and  another  against 

Henry  Rohrlg.    Judgment  for  defendant,  and 

plaintiffs  appeal.    Affirmed. 

T.  J.  Spangler,  for  appellants.  Preston  & 
Hannett,  for  respondent. 

WHITING,  J.  This  action  was  brought  by 
plaintiffs  and  appellants  to  seelc  to  recover 
damages  for  breach  of  contract  for  the  sale 
and  purchase  of  land;  it  being  alleged  by 
plaintiffs  that  they  entered  into  a  written 
contract  with  the  defendant  to  sell  to  defend- 
ant certain  lands,  that  they  had  at  all  times 
t)een  ready  and  willing  to  carry  out  said 
contract,  and  that  they  had  tendered  ab- 
stract showing  perfect  title  to  the  lands,  as 
well  as  deed  thereto  running  to  defendant, 
and  had  duly  performed  all  conditions  of 
said  contract  They  further  alleged  that 
the  contract  price  of  said  land  was  $40  per 
acre,  and  the  real  value  of  the  same  $35,  and 
sought  to  recover  damages  in  the  sum  of  $5 
per  acre.  The  defendant  answering,  admit- 
ted the  execution  of  the  contract  and  claim- 
ed that  he  had  at  all  times  been  ready  and 
able  and  willing  to  perform  his  part  of  the 
same,  but  that  plaintiffs  had  refused  to  car- 
ry out  and  perform  the  conditions  of  the 
same  on  their  part  It  Is  unnecessary  to  re- 
cite the  contract  in  full;  the  parts  material 
to  our  consideration  being  as  follows:  "Wit- 
nesseth,  that  the  said  parties  of  the  first  part 
hereby  covenant  and  agree  that  if  the  par- 
ty of  the  second  part  shall  first  make  pay- 
ments and  perform  the  covenants  hereinafter 
mentioned  on  his  part  to  be  made  and  per- 
formed, the  said  parties  of  the  first  part  will 
convey  by  warranty  deed  and  abstract  show- 
ing perfect  title  the  following  described  prem- 
ises, to  wit:  •  •  •  And  the  said  party  of 
the  second  part  hereby  covenants  and  agrees 
to  pay  the  said  parties  of  the  first  part  the 
sum  of  twelve  thousand  eight  hundred  dol- 
lars, in  the  manner  following:  Two  himdred 
dollars  cash  In  hand  paid,  the  receipt  whereof 
is  hereby  acknowledged,  and  the  balance,  five 
thousand  dollars  ($5,000),  the  fifteenth  day 
of  November,  1905,  in  cash;  seven  thousand 
six  hundred  dollars  ($7,600)  by  the  execution 
of  note  and  first  mortgage  covering  the  atx>ve 
description,  for  five  years,  at  6%,  with  the 
privilege  of  paying  one  hundred  dollars  or 
any  multiple  thereof  on  any  interest  pay 
day,  with  interest  at  the  rate  of  6  per  cen- 
tum per  annum,  payable  annually." 

While  there  are  numerous  assignments  of 
error,  yet,  under  the  view  which  we  take  of 
the  construction  which  should  be  placed  up- 
on the  contract,  it  will  be  necessary  to  con- 
sider but  one  feature  of  the  cas&  When 
plaintiffs  rested  their  case  in  chief,  the  court 
on  defendant's  motion  and  over  the  objec- 
tion of  the  plaintiffs,  directed  the  verdict  in 
favor  of  the  defendant  The  theory  upon 
which  the  court  made  its  various  rulings. 


•For  other  eoaei  tee  tame  toplo  Mid  section  NUMBBR  In  Dec.  t  Am.  Dlgi.  1907  to  date,  t  Reporter  Indeze* 


Digitized  by  VjOOQ  l€ 


S.D.) 


INK  V.  ROHRIQ. 


695 


and  whlcli  la  relied  upon  by  respondent,  Is 
that  Ib  the  contract  in  question,  the  cove- 
nant to  make  the  payment  of  $5,000  and  give 
the  note  and  mortgage,  was  not  Independent 
of,  but  was  dependent  on,  plaintiffs'  cove- 
nant to  furnish  an  abstract  showing  perfect 
title  and  to  give  warranty  deed.  On  tike  oth- 
er hand.  It  Is  the  contention  of  the  plaintiffs 
that,  although  in  their  complaint  they  pleaded 
the  famishing  of  the  abstract  showing  per- 
fect title,  yet  as  a  matter  of  law  under  the 
contract  the  covenant  to  make  the  payment 
of  $6,000  and  to  give  the  note  and  mortgage 
was  Independent  of  the  covenant  to  furnish 
abstract  and  give  deed,  and  that,  being  inde- 
pendent, plaintiffs  could  sue  to  recover  dam- 
ages for  breach  of  contract,  although  plain- 
tiffs had  never  furnished  the  abstract.  All 
of  the  rulings  of  the  court  complained  of  are 
correct,  if  respondent  Is  right  in  his  conten- 
tion as  to  the  construction  to  be  placed  on 
the  contract;  and,  on  the  other  hand,  reversi- 
ble error  was  committed  by  the  court,  if  the 
plaintiffs  are  correct  in  their  interpretation 
of  this  contract  Therefore  the  only  thing 
necessary  for  ns  to  consider  is  whether  or 
not  the  above-mentioned  covenants  In  said 
contract  are  dependent  the  one  on  the  other. 
Plaintiffs  seem  to  rely  entirely  upon  the 
word  "first,"  found  in  the  said  contract 
wherein  it  provides  that,  If  the  defendant 
should  first  make  the  payments,  etc.,  then 
plaintiffs  would  convey  and  furnish  abstract. 
We  do  not  think,  however,  that  the  use  of 
this  word  Is  controlling.  The  universal  rule 
laid  down  under  the  authorities  concerning 
the  construction  of  covenants  In  contracts,  as 
to  whether  they  are  dependent  or  independ- 
ent, is  that  the  relation  of  covenants  Is  to  be 
determined  according  to  the  Intention  and 
meaning  of  the  parties  as  the  same  appears 
In  the  instrument,  and  by  the  application  of 
common  sense  to  each  particular  case,  to 
which  intention,  when  once  discovered,  all 
technical  forms  of  expression  must  give  way. 
11  Cyc.  1053;  29  Am.  &  Eng.  Ency.  of  U 
604.  It  is  further  held  under  the  authori- 
ties that  in  case  of  doubt  the  courts  will  con- 
strue such  covenants  as  dependent,  rather 
than  as  Independent  In  the  case  of  Bank  v. 
Hagner,  1  Pet  464,  7  L.  Ed.  219,  the  Supreme 
Court  said:  "In  contracts  of  this  descrip- 
tion, the  undertakings  of  the  respective  par- 
ties are  always  considered  dependent  un- 
less a  contrary  Intention  clearly  appears.  A 
different  construction  would  in  many  cases 
lead  to  the  greatest  Injustice,  and  a  purchas- 
er might  have  payment  of  the  consideration 
money  forced  upon  him,  yet  be  disabled  from 
procuring  the  property  for  which  he  paid  It 
Although  many  nice  distinctions  are  to  be 
found  in  the  books  upon  the  question  wheth- 
er the  covenants  or  promises  of  the  respec- 
tive parties  to  the  contract  are  to  be  consid- 
ered indei>endent  or  dependent  yet  it  is  evi- 
dent the  Inclination  of  courts  has  strongly 
favored  the  latter  construction,  as  being  ob- 
viously the  most  Just  The  seller  ought  not 
to  be  compelled  to  part  with  his  property 


without  receiving  the  consideration;  nor  the 
purchaser  to  part  with  his  money  without  an 
equivalent  in  return."  In  the  case  of  Olenn 
V.  Bossier,  156  N.  Y.  161,  50  N.  K.  785,  the 
contract  in  suit  provided,  among  other  things, 
as  follows:  "The  party  of  the  first  part  shall, 
after  the  payments  mentioned  herein  are 
fully  made  on  this  contract  at  their  own 
proper  cost  find  expense,  execute  and  deliver 
to  the  said  party  of  the  second  part  a  good 
and  sufficient  warranty  deed  of  said  prem- 
ises, and  at  the  time  deliver  to  the  second 
party  a  tax  or  title  search  made  by  one  of 
the  guaranty  search  companies  of  the  city  of 
Buffalo,  showing  good  and  perfect  title." 
And  In  considering  the  same  the  court,  after 
approving  the  case  of  Bank  v.  Hagner,  supra, 
says:  "An  application  of  these  principles 
renders  It  quite  evident  that  although  a  lit- 
eral reading  of  a  portion  of  the  agreement 
may  tend  to  sustain  the  contention  of  the  ap- 
pellant's, stUI,  when  the  whole  agreement  Is 
read  and  properly  construed,  the  payments 
due  October  Ist  and  the  giving  of  the  deed 
were  intended  to  be  dependent  and  concur- 
rent acts.  The  plain  Inference  to  be  drawn 
from  all  its  provisions  Is  that  the  deed  was 
to  be  executed  and  delivered  at  the  time  of 
the  payment  of  the  amount  due  October  1st 
No  fair  reading  of  It  would  Justify  the  con- 
clusion that  the  payment  of  the  entire  con- 
sideration then  due,  amounting  to  many 
thousands  of  dollars,  was  to  precede  the 
transfer  of  the  tlOe." 

In  the  case  of  Parker  T.  Parmele,  20  Johns. 
(N.  T.)  130,  11  Am.  Dea  253,  the  contract 
provided  for  certain  payments  to  be  made, 
and  then  the  vendor  covenanted  that  upon 
the  full  performance  of  the  covenants  as  to 
payments  he  would  execute  to  the  defendant 
a  good  warranty  deed  of  conveyance  of  tlie 
premises,  and  the  court  held  the  covenants 
dependent 

In  the  case  of  Amett  t.  Smith,  11  N.  D.  55, 
88  N.  W.  1037,  cited  in  appellants'  brief,  the 
court  held  the  covenants  of  the  contract  in 
question  to  be  dependent  the  contract  being 
almost  identical  with  the  contract  before  us, 
with  the  exception  of  the  word  "first";  the 
same  being  omitted  in  the  North  Dakota  con- 
tract; but  under  the  rule  stated  in  the  above 
authorities,  and  for  the  same  reasons  given 
in  the  cases  above  cited,  we  think  that  the 
mere  use  of  the  word  "first"  cannot  be  held 
to  make  the  covenant  of  payment  independ- 
ent It  certainly  should  take  strong  language 
to  Justify  a  court  in  holding  that  a  purchas- 
er could  be  compelled  to  pay  the  entire  pur- 
chase price,  amounting  in  this  case  to  several 
thousand  dollars,  receiving  nothing  in  return 
save  the  bare  promise  of  the  vendor  that  he 
would  thereafter  within  a  reasonable  time 
furnish  deed  and  abstract  and  we  do  not  be- 
lieve that  it  was  ever  the  Intention  of  the 
parties  to  this  contract  who  under  the  cove- 
nants it  appears  were  strangers  to  one  anoth- 
er until  Just  before  the  contract  was  execut- 
ed. There  can  be  no  question  but  that  the 
covenant  to  furnish  an  abstract  is  an  essen- 


Digitized  by  LjOOQ  l€ 


596 


122  NORTHWBSTBBN  BBPORTEB. 


(S.n 


tlal  part  of  a  contract  of  this  nature,  and 
that  i>ayment  of  the  consideration  Is  as  mndi 
dependent  upon  the  performance  of  this  cove- 
nant as  upon  a  covenant  to  give  deed.  6 
Current  Law,  1791 ;  Consolidated  Coal  Co.  v. 
Plndley,  128  Iowa,  696,  105  N.  W.  206;  Rey- 
nolds V.  Lynch,  98  Minn.  58,  107  N.  W.  145. 

The  appellants  contend  that  there  is  a  dis- 
tinction between  actions  brought  to  recover 
the  contract  price  and  actions  brought  to  re- 
cover damages  for  breach  of  contract,  and 
that,  while  full  performance  of  the  covenants 
on  the  vendor's  part  must  be  pleaded  and 
proven  in  an  action  to  recover  the  contract 
price,  yet  that  the  same  rule  does  not  hold 
where  the  suit  Is  brought  to  recover  dam- 
ages. In  this  appellants  are  certainly  wrong. 
The  action  for  damages  cannot  be  brought 
until  the  defendant  is  in  default,  any  more 
than. to  recover  the  purchase  money.  It  cer- 
tainly would  be  an  anomaly  if  one,  before  be 
oad  placed  himself  in  a  position  wh'ere  he 
could  say  to  another,  "Ton  are  In  default, 
and  are  liable  on  your  covenants  to  pay  the 
amount  provided  therein,"  still  could  say, 
"Although  not  In  default,  you  have  broken 
your  contract  and  are  liable  for  damages  un- 
der such  contract"  In  the  case  of  Shlnn  v. 
Roberts,  20  N.  J.  Law,  435,  43  Am.  Dec.  636, 
the  court,  citing  the  case  of  Bank  v.  Hagner, 
supra,  and  other  cases,  says:  "The  vendor 
cannot  bring  his  action  for  breach  of  the 
contract,  without  first  having  executed  and 
tendered  the  conveyance,  unless  the  purchas- 
er had  discharged  him  from  so  doing;  and 
an  averment  of  such  tender  must  be  made  in 
the  declaration,  and  must  be  supported  by 
proof."    See,  also,  11  Cyc.  1055. 

The  Judgment  of  the  trial  court,  and  the 
order  denying  a  new  trial  herein,  are  aflBrmed. 


MARIN  V.  TITUS. 

(Supreme  Court  of  South  Dakota.    Sept  3, 
1909.) 

1.  Judgment  (§  162*)  —  Bebvicis  —  Place  of 
Residence. 

On  an  application  to  set  aside  a  default 
judgment  for  want  of  jurisdiction,  evidence  held 
to  justify  a  finding  that  plaintiff  resided  at 
the  place  where  the  summons  was  alleged  to 
have  been  served  by  leaving  a  copy  with  a  per- 
son over  14  years  of  age  found  in  charge  of 
defendant's  dwelling  house. 

[Ed.   Note.— For   other  cases,   see  Judgment, 
Cent  Dig.  §  322;    Dec.  Dig.  i  ]62.»] 

2.  Pbocess  (g  127*)— Sebvice— Retubn. 

A  trial  court  acquires  jurisdiction,  if  at  all, 
through  the  proper  service  of  summons,  regard- 
less of  the  return. 

[Ed.  Note. — For  other  casps.  see  Process,  Cent. 
Dig.  8  155 ;   Dec.  Dig.  $  127. •] 

3.  Judgment    (§    17*)— DsrAULT— Vacation— 
Sebvice  or  Pbocess. 

Where  a  return  on  a  summons  was  de- 
fective, but  the  affidavits  (m  an  application  to 
set  aside  a  default  judgment  showed  that  the 


summons  was  in  f^ct  legally  served,  the  motion 
was  properly  denied. 

[Ed.  Note. — For  other  cases,  see  Judgment^ 
Cent  Dig.  §  31 ;   Dec.  Dig.  i  17.*] 

Appeal  from  Circuit  Court,  Jerauld  County. 

Action  by  W.  A.  Marin  against  G.  M.  Ti- 
tus. From  au  order  denying  defendant's 
motion  to  vacate  a  Judgment,  he  appeals. 
Affirmed. 

T.  H.  Null,  for  appellant  J.  G.  Bradford, 
for  respondent 

WHITING,  J.  This  cause  comes  to  this 
court  upon  an  appeal  from  an  order  of  the 
trial  court  denying  the  motion  of  the  de- 
fendant asking  that  such  trial  court  vacate 
the  Judgment  rendered  by  said  court  herein. 
It  appears  from  the  record  that  this  was  an 
action  brought  to  recover  upon  three  certain 
promissory  notes;  that  summons  was  is- 
sued herein  August  1,  1903,  which  summons 
stated  that  the  complaint  would  be  filed  in 
the  ofBce  of  the  clerk  of  the  circuit  court 
The  return  on  said  summons  was  in  the 
form  of  an  affidavit,  and  stated  that  the 
affiant  made  diligent  search  for  the  defend- 
ant in  the  county  of  Jerauld,  but  could  not 
find  defendant;  that  he  did  find  his  dwelling 
house  In  the  said  county,  and  found  a  per- 
son over  14  years  of  age  in  charge  thereof; 
that  affiant  served  said  summons  upon  de- 
fendant, by  delivering  and  leaving  with  such 
person  found  in  charge  of  defendant's  dwell- 
ing bouse  a  true  and  attested  copy  of  the 
summons,  on  August  29,  1903.  The  return 
further  states  that  affiant  knows  the  place 
of  service  to  be  the  dwelling  house  of  the 
defendant  and  the  person  to  whom  the  pa- 
per was  delivered  to  be  the  wife  of  defend- 
ant. Judgment  upon  default  was  taken  in 
November,  1904.  The  notice  of  motion  to 
vacate  Judgment  was  served  in  December, 
1906,  and  states  that  the  motion  will  be 
made  upon  affidavits  and  proposed  answer 
attached  to  such  notice. 

While  the  attaching  of  the  proposed  an- 
swer and  the  part  of  the  affidavits  in  rela- 
tion to  the  meiits  of  the  cause  would  ordi- 
narily indicate  that  the  motion  was  one  to 
vacate  the  Judgment  on  the  grounds  of  ex- 
cusable neglect,  yet  it  is  quite  evident  that 
the  ground  relied  upon  was  want  of  juris- 
diction, and  the  parties  have  so  treated  the 
motion,  both  before  the  trial  court  and  up- 
on this  appeal  It  would  appear,  however, 
from  statements  found  in  the  appellant's 
brief,  that  the  trial  court  based  its  ruling 
denying  the  motion  largely,  if  not  entire- 
ly, upon  the  proposition  that  the  defendant 
had  submitted  himself  to  the  Jurisdiction  of 
such  court  by  his  offering  an  answer  In 
said  cause.  Inasmuch  as  respondent  does 
not  seem  to  rely  upon  such  position,  but 
contends  that  the  trial  court  bad  Jurisdiction 
through  service  of  the  summona,  and  that 
upon  the  showing  made  on  motion  to  vacata 


•For  other  casei  lee  sun*  topio  and  Motion  NUHBBR  In  Dec.  &  Am.  Digs.  1907  to  data,  &  RapsrUr  Indexes 


Digitized  by  VjOOQ  l€ 


8.D^ 


WIOEHEM  T.  CITT  OF  ALEXANDRIA. 


697 


the  Judgment  the  court  was  fully  Justified 
In  denying  the  motion,  we  will  simply  con- 
sider this  matter  upon  the  question  of 
whether  the  court  acquired  Jurisdiction  by 
such  service  of  summons. 

The  defendant  upon  the  motion  presented 
affidavits  of  himself  and  wife,  denying  that 
any  summons  was  ever  left  with  said  wife, 
denying  any  knowledge  of  the  bringing  of 
such  action  until  long  after  Judgment,  claim- 
ing that  at  the  time  of  the  alleged  service 
ttie  defendant  was  engaged  as  a  merchant, 
and  had  charge  of  such  business  and  the 
post  office  at  Templeton,  Jerauld  county,  S. 
D.,  and  fnrttier  fiMimtng  that,  from  his  books 
kept  in  connection  with  sneh  business,  It 
appears  that  he  was  at  home  in  charge  of 
his  business  on  the  day  on  which  service  Is 
claimed  to  have  been  made,  and  that  his 
dwelling  hotne  at  tliat  time  was  at  or  near 
his  place  of  bustnesB.  Upon  the  other  liand, 
the  plaintiff  presented  affidavit  from  the 
party  who  made  the  return  on  the  summons, 
showing  fully  what  he  did  at  that  time,  and 
stating  that  the  defendant  was  not  in  busi- 
ness In  Templeton  at  the  time  in  question, 
but  lived  some  four  miles  from  Templeton, 
and  that  the  wife  of  defendant  advised  him 
at  the  time  of  such  service  that  the  defend- 
ant was  In  Spink  county,  S.  D.  The  defend- 
ant presented  affidavit  of  the  liveryman  who 
drove  the  party  serving  the  summons  to  the 
residence  of  the  defendant,  and  this  party 
corroborates  the  party  who  claims  to  have 
made  the  service.  Defendant  presented  af- 
fidavit of  another  party,  who  was  the  agent 
of  a  medicine  company,  which  affidavit 
would  tend  to  show  that  defendant  was  not 
in  business  as  a  merchant  at  the  time  in 
question,  but  was  engaged  in  Spink  and 
Brown  counties  in  selling  medicine.  De- 
fendant also  presented  the  affidavit  of  an 
ofBcer  of  this  medicine  company,  attached 
to  affidavit  being  letters  written  by  the  de- 
fendant, together  with  copy  of  a  letter  writ- 
ten by  the  company  to  defendant;  and  said 
afiSdavlt  and  letters  tend  to  show  that  on 
the  date  of  the  claimed  service  the  defend- 
ant was  in  the  employ  of  the  medicine  com- 
pany and  on  his  way  to  Spink  county.  There 
was,  therefore,  ample  evidence  to  Justify  the 
court  in  overruling  the  motion. 

ApiwUant,  however,  contends  that  the  re- 
turn on  the  summons  Is  defective  In  sub- 
stance, in  that  it  does  not  specifically  state 
that  the  summons  was  left  at  the  dwelling 
of  defendant,  and  raises  other  technical 
questions  as  to  the  wording  of  the  return. 
Tbe  trial  court  acquired  Jurisdiction,  if  at 
all,  through  the  proper  service  of  the  sum- 
mons, and  not  through  the  return  thereof; 
and  while  it  is  true  that  If  the  return  was 
insufficient  the  court  should  not  have  enter- 
ed Judgment,  and  while  it  Is  true  that  In 
case  Judgment  was  erroneously  entered  up- 
on the  defective  return  the  court  upon  mo- 


tion should  have  vacated  the  Judgment  un- 
less a  showing  was  made  that  proper  serv- 
ice was  In  fact  made,  yet.  If  upon  such  mo- 
tion the  court  is  satisfied  from  the  showing 
made  that  as  a  matter  of  fact  the  summons 
was  served  as  required  by  the  statute,  then 
and  in  that  case  the  motion  should  be  de- 
nied even  If  the  original  return  was  defect- 
ive. It  is  shown  beyond  all  question  by  the 
affidavits  filed  by  defendant  upon  tbe  mo- 
tion to  vacate  Judgment,  even  if  the  orig- 
inal return  was  not  sufficient,  that  the  stat- 
ute was  fully  complied  with  In  making  the 
service  of  said  summons.  Therefore,  If  the 
court  believed  the  affidavits  submitted  on 
behalf  of  the  defendant,  it  could  do  nothing 
else  than  overrule  the  motion. 
The  order  of  the  trial  court  is  affirmed. 


WICKHEM  et  al.  v.  CITT  OF  ALEXAN- 
DRIA. 

(Supreme  Court  of  South  Dakota.     Sept.  3, 
1909.) 

1.  Constitutional  Law  (8  48*)— Statutes- 
Constitutionality— Functions  OF  Courts. 

It  ia  onl^  where  a  statute  clearly  and  in- 
evitably conflicts  with  the  Constitution  that  the 
courts  will  declare  it  void. 

[Ed.  Note.— For  other  cases,  see  Constitution- 
al Law,  Cent.  Dig.  {  46;    Dec.  Dig.  i  48.*] 

2.  Constitutional  Law  (|  61*)— Distribu- 
tion OF  Governmental  Powebs— Legisla- 
tive Powers— Delegation  to  Judiciary. 

Pol.  Code,  §  1511,  providing  that,  on  fail- 
ure of  a  city  council  to  exclude  land  from  the 
city  limits  upon  the  owners'  petition,  such  own- 
ers may  file  a  petition  in  the  circuit  court,  and 
section  1512,  authorizing  the  court  to  order  that 
the  petition  be  granted,  if  upon  bearing  it  ap- 
pears it  should  be  granted,  are  not  unconstitu- 
tional as  investing  the  circuit  court  with  legis- 
lative powers. 

[E!d.  Note.— For  other  cases,  see  Constitution- 
al Law,  Cent.  Dig.  {  105 ;   Dec.  Dig.  |  61.*] 

Appeal  from  Circuit  Court,  Hanson  Coun- 
ty. 

Petition  by  P.  F.  Wickhem  and  Others 
against  the  City  of  Alexandria.  From  a 
Judgment  for  petitioners,  and  from  an  order 
refusing  a  new  trial,  respondent  appeals. 
Affirmed. 

P.  A.  ZoUman  and  E.  E.  Wagner,  for  ap- 
pellant. T.  J.  Spangler  and  H.  J.  Mohr,  for 
respondents. 

WHITING,  J.  The  plaintiffs  herel^  pe- 
titioned council  of  the  defendant  city,  and 
prayed  that  certain  lands  belonging  to  plain- 
tiffs and  situate  within  the  corporate  limits 
of  defendant  be  excluded  therefrom,  in  ac- 
cordance with  the  provisions  of  sections  1609 
and  1510  of  the  Political  Code.  The  defend- 
ant, through  Its  council,  refused  the  prayer 
of  such  petition,  and  plaintiffs  presented 
their  petition  to  the  circuit  court  in  accord- 
ance with  the  provisions .  of  section  1511  of 
the  Political  Code,  and,  under  the  power  in 


•*or  otlMT  cases  lea  Mune  topic  and  section  NUMBER  la  Deo.  A  Am.  Digs.  IHn  to  data,  t  Reporter  Indexw. 


Digitized  by  VjOOQ  l€ 


598 


122  NORTHWESTEBN  BEPORTEB. 


(S.a 


the  court  vested  by  section  1512  of  such 
Ck>de,  the  circuit  court  granted'  the  petition 
after  a  trial  on  the  merits,  and  the  defendant 
has  appealed  to  this  court  from  the  Judgment 
of  the  circuit  court,  and  from  the  order  of 
such  court  refusing  a  new  trial. 

There  are  several  assignments  of  error  set 
forth  in  the  abstract,  some  of  which  are  not 
relied  upon  on  this  appeal.  Among  the  as- 
signments called  to  our  attention  by  appel- 
lant's brief  Is  an  assignment  to  the  effect 
that  the  evidence  is  insufficient  to  support 
the  judgment.  Counsel  do  not  seem  to  urge 
this  claim  very  strongly,  and  we  are  fully 
satisfied  that  there  is  no  merit  in  same. 

The  only  assignments  which  seem  to  be 
actually  relied  upon  are  those  based  upon 
the  claim  that  sections  1511  and  1512,  above 
referred  to,  are  unconstitutional.  The  ap- 
pellant recognizes  the  fact  that  this  court, 
in  the  case  of  Pelletier  v.  City  of  Ashton,  12 
S.  D.  3GG,  81  N.  W.  735,  pitssed  upon  the 
question  of  the  constitutionality  of  these 
sections  and  held  the  same  to  be  constitu- 
tional ;  but  appellant  claims  ttiat'  the  great 
weight  of  authority  supports  its  conten- 
tion, and  asks  for  a  reconsideration  by  this 
court  of  the  constitutionality  of  these  sec- 
tions. Since  the  decision  of  the  Pelletier 
Case,  in  1900,  two  other  cases  based  upon 
these  sections  have  been  before  this  court, 
and  in  those  cases  It  seems  to  have  been 
conceded  that  the  sections  were  constitution- 
al. It  is  a  well-established  rule  of  law  that 
"only  when  the  collision  between  the  legis- 
lative and  the  fundamental  law  is  certain 
and  Inevitable  do  the  courts  feel  Justified  In 
declaring  a  law  void."  State  v.  Becker,  3 
S.  D.  29,  51  N.  W.  lOia  Or,  as  was  said  by 
the  court  in  Henrico  County  t.  City  of  Bicfa- 
mond,  106  Va.  282,  55  S.  E.  683,  117  Am.  St 
Rep.  1001:  "To  doubt  must  be  to  affirm." 
We  certainly  should  hesitate  before  overrul- 
ing the  former  decision  of  this  court  and 
holding  the  law  in  question  void. 

It  must  be  admitted  that  there  is  a  conflict 
of  authority  upon  the  question  raised,  there 
being  courts  sustaining  the  position  that  by 
the  sections  under  consideration  the  Legis- 
lature has  conferred  upon  the  courts  legisla- 
tive power,  and  that  such  sections  are  there- 
fore unconstitutional ;  but  we  do  not  think 
it  can  be  held  that  the  weight  of  authority 
supports  such  contention.  No  good  purpose 
would  be  subserved  by  our  reviewing  in  de- 
tail the  authorities  pro  and  con,  or  elaborat- 
ing upon  the  opinion  of  Justice  Fuller  in  the 
Pelletier  Case.  We  are  fully  satisfied  with 
the  conclusion  reached  in  that  case,  and  will 
only  say  that,  since  the  decision  of  that  case, 
other  courts,  under  statutes  quite  similar 
in  effect  with  ours,  have  held  to  the  same 
view.  Incorporated  Village  of  Falrview  v. 
Giffee,  78  Ohio  St.  183,  76  N.  E.  8(55;  Blsen- 
lus  V.  City  of  Bandolph  (Neb.)  118  N.  W.  127 ; 
Henrico  County  v.  City  of  Bichmond,  106 


Va.  282,  55  S.  E.  683,  U7  Am.  St  B^.  1001; 
Young  V.  Salt  Lake  City,  24  Utali,  S21,  67 
Pac.  1066.  We  would  call  particular  atten- 
tion to  the  reasoning  of  tlie  Ohio  and  Vir- 
ginia courts. 

The  Judgment  of  the  circuit  court,   and 
order  denying  a  new  trial,  are  affirmed. 


STINB  V.  FOSTER. 

(Supreme  Court  of  South  Dakota.    Sept.  3, 
1909.) 

1.  ExcHANOE  OF  Pbopebtt  (8  18*)— COJIPIX- 

TioN— Instructions. 

In  replevin  to  recover  certain  horses  de- 
livered to  plaintiff  pursuant  to  an  exchange,  and 
retaken  by  defendant  under  an  alleged  agree- 
ment to  retrade  if  not  satisfactory,  an  instruc- 
tion that  plaintiff's  right  to  recover  depended  on 
whether  a  right  was  reserved  at  the  time  of  the 
trade  to  either  party  to  return  the  animals  if 
dissati-sfied  and  take  back  bis  own,  and,  if  such 
agreement  was  made,  then  the  contract  was 
not  completed,'  and  ownership  did  not  pass,  was 
correct. 

[Ed.  Note.— For  other  cases,  see  Exchange  of 
Property,  Cent  Dig.  {  28;    Dec.  Dig.  {  13.»] 

2.  Exchange  of  Pbopebty  (§  13*)— Recov- 
ery or  Pbopebty  Exchanoed. 

In  an  action  to  recover  horses  delivered  to 
plaintiff  in  a  trade,  and  retaken  by  defendant 
under  an  alleged  agreement  to  retrade  if  not 
satisfied,  the  court  properly  charged  that  plain- 
tiff could  recover  only  in  case  the  jury  found 
there  was  no  agreement  for  a  return  of  the 
horses  in  case  either  party  was  dissatisfied. 

[Ed.  Note. — For  other  cases,  see  Exchange  of 
Property,  Cent  Dig.  §  28;   Dec.  Dig.  S  13.*] 

3.  ExcnANOE  OF  Fboferty  (S  11*)  — Rescis- 
sion. 

Rules  applicable  to  the  rescission  of  a  con- 
tract of  sale  are  applicable  to  a  contract  for  an 
exchange  of  property  only  where  there  has  been 
a  completed  transfer,  and  no  right  reserved  for 
further  examination  with  the  right  to  return 
the  property  if  not  satisfactory. 

[Ed.  Note. — For  other  cases,  see  Ezcbange  of 
Property,  Cent  Dig.  f  20;  Dec  Dig.  S  ll.*l 

Appeal  from  Circuit  Court,  Lake  County. 

AcUon  by  M.  B.  Stiue  against  William 
Foster.  Judgment  for  defendant,  and  plain- 
tiff appeals.     Affirmed. 

Christopherson  &  Medin,  for  appellant 
G.  R.  Krause,  for  respondent 


CORSON,  3.  This  is  an  action  In  claim 
and  delivery,  in  which  the  plaintiff  seeks 
to  recover  the  possession  of  a  span  of  horses 
and  two  horse  collars,  with  damages  for  their 
wrongful  detention,  claiming  to  be  the  own- 
er and  entitled  to  the  possession  of  the  same. 
Defendant  answered  by  a  general  denial. 
The  case  was  tried  to  a  Jury,  and,  the  ver- 
dict and  Judgment  I>eing  in  favor  of  the  de- 
fendant, the  plaintiff  has  appealed. 

It  is  disclosed  by  the  evidence  that  on  or 
about  January  18,  1905,  the  plaintiff  and 
defendant,  who  each  owned  a  team  of  horses, 
entered  into  a  contract  for  an  exchange  of 
the  same,  and  that  the  team  owned  by  the 
defendant  was  placed  in  the  plaintiff's  bam 


»For  otl>«r  CMeg  net  same  topic  and  ■•ctton  NUMBER  ia  Dec.  *  Am.  Digs.  1907  to  date,  ft  Reporter  Indexea 


Digitized  by  VjOOQ  IC 


S.I>.) 


8TINB  T.  FOSTER. 


and  tbe  team  owned  by  the  plaintiff  was 
talcen  to  his  home  by  the  defendant,  some 
fire  or  six  miles  from  the  town  of  Colton, 
where  the  trade  was  made.  It  is  claimed 
by  the  defendant  that  the  trade  or  contract 
for  the  exchange  of  the  teams  was  not  com- 
pleted, but  that  by  Its  terms  he  had  the 
right  to  take  the  team  to  his  home  and  try 
it.  and.  If  not  satisfactory,  return  the  same 
to  the  plaintiff,  and  take  back  the  team  ex- 
changed by  him,  and  that,  by  reason  thereof, 
some  10  days  after  the  transaction  he  re- 
turned the  team  received  from  the  plaintiff 
to  tbe  plaintiff's  bam  and  took  home  the 
team  he  had  exchanged  therefor,  and  which 
constitutes  the  subject  of  controversy  in  this 
action.  It  is  contended  by  the  appellant 
that  the  contract  of  exchange  was  fully  com- 
pleted, and  that  the  defendant  not  only  paid 
to  him  $10  in  cash  at  the  time  as  boot  money, 
but  that  on  the  following  day  the  defend- 
ant delivered  to  him  a  load  of  hay,  agreed 
to  be  given  in  addition  to  the  money,  in  the 
contract  of  exchange.  The  evidence  was 
conflicting,  and  each  party  was  corroborated 
to  some  extent  as  to  bis  theory  of  the  terms 
of  the  exchange,  and  the  court  seems  to  have 
submitted  the  case  to  the  Jury  upon  the  the- 
ory that  there  was  such  a  conflict  in  the  evi- 
dence, and  that  it  was  for  them  to  determine 
whether  or  not  there  was  a  completed  trade, 
such  as  passed  the  ownership  and  title  to 
the  projjerty  In  controversy  to  the  plaintiff. 
The  principal  question  in  this  case  arises 
as  to  the  correctness  of  the  Judge's  charge 
to  the  Jury.  The  material  parts  of  the  charge 
are  as  follows:  "It  appears  in  the  evidence 
In  this  case  that  some  time  in  January  last 
some  trade  or  attempted  trade  of  horses 
was  effected  between  the  plaintiff  and  the 
defendant  And  the  matter  for  your  con- 
sideration is  whether  or  not  that  was  a 
complete  trade  such  as  passed  ownership 
of  the  property.  The  horses  in  controversy 
it  appears  had  belonged  to  William  Poster, 
the  defendant  He  and  the  plaintiff  met  In 
the  town  of  Oolton,  Minnehaha  county,  at 
the  time  of  the  trade,  and  had  a  negotiation 
about  the  exchange  of  a  team  belonging  to 
the  plaintiff  for  a  team  then  owned  by  the 
defendant  and  now  claimed  by  the  plaintiff. 
It  In  that  negotiation  those  parties  effected 
a  complete  trade  of  the  property  so  that 
the  property  passed  from  the  defendant  Fos- 
ter to  the  plaintiff  Stlne,  then  the  plaintiff 
became  the  owner  of  the  property  and  had 
title  to  the  property,  provided  the  trade  ex- 
tended to  that  point  at  which  by  mutual  in- 
tention of  the  parties  the  property  would 
pass;  that  Is,  If  two  men  seek  to  trade 
horses,  tbe  ownership  of  the  horses  passes 
whenever  it  is  mutually  understood  and 
agreed  between  the  parties  that  It  does  pass, 
and  a  delivery  Is  had.  The  defendant  In 
this  case  claims  that  the  trade  was  not  com- 
plete, that  it  was  not  the  intention  of  the 
parties  at  that  time  to  pass  the  ownership 


of  tbe  property,  but  the  terms  of  the  trade 
were  complete,  each  party  having  a  right, 
however,  to  test  and  examine  the  property, 
and.  If  he  was  dissatisfied  with  tbe  property 
handed  over  to  him,  he  might  return  it  and 
call  the  trade  off.  That  is  the  theory  of  tbe 
defendant  If  you  find  the  defendant  is 
correct  in  that  theory,  that  the  trade  was 
not  complete,  and  that  he  was  to  have  an 
opportunity  to  examine  the  property,  and 
if  dissatisfied,  if  he  found  the  property  was 
not  satisfactory  to  him,  that  he  might  return 
it  and  take  his  own  horses,  then  it  is  not 
a  completed  trade,  and  the  property  did  not 
pass.  If,  on  tbe  contrary,  the  trade  was  as 
the  plaintiff  contends,  namely,  that  they  ex- 
amined the  horses  on  both  sides,  he  and 
the  defendant,  and  mutually  agreed  upon 
the  terms,  and  each  delivered  to  tbe  other 
the  horses,  and  made  an  exchange  by  taking 
possession,  and  there  was  nothing  said  In 
regard  to  trading  back,  in  regard  to  either 
party  having  a  right  if  dissatisfied  to  re- 
turn the  horses,  if  that  was  the  true  state 
of  facts,  then  the  defendant  Foster  would 
have  no  right  to  return  the  horses  he  had 
received,  and  take  his  first  horses  back.  But 
If  he  is  correct  upon  his  theory  of  the  ckse 
that  a  right  was  reserved  to  either  of  the 
parties,  if  on  further  examination  he  was  dis- 
satisfied, to  return  the  horses  he  bad  receiv- 
ed and  take  his  own  former  horses  back, 
then  Foster  might  do  that  and  resume  pos- 
session of  his  original  animals,  the  animals 
in  controversy.  The  whole  question  hinges 
on  this  proposition:  Was  there  a  right  re- 
served at  the  time  of  negotiation  to  either 
party  to  return  the  animals  If  dissatisfied, 
and  take  back  his  own.  If  so,  then  the  con- 
tract was  not  a  completed  sale,  and  the  own- 
ership did  not  pass,  and  Foster  might  take 
his  own  property  back  and  hold  it  But  If, 
on  the  contrary,  there  was  no  such  agreement 
and  a  reserved  right  to  rescind  and  deliver 
back  the  property,  then  Foster  had  no  right 
to  do  so,  and  your  verdict  should  be  for 
the  plaintiff." 

It  is  contended  by  tbe  appellant  that  the 
court  erred  In  that  part  of  bis  charge  in 
which  he  Instructs  the  Jury  that  the  whole 
question  hinges  upon  this  proposition:  "Was 
there  a  right  reserved  at  the  time  of  tbe 
negotiation  to  either  party  to  return  the  an- 
imals If  dissatisfied,  and  take  back  his  own? 
If  so,  then  the  contract  was  not  a  completed 
sale,  and  the  ownership  did  not  iratss,  and 
defendant  mlgbt  take  his  own  property  l)ack 
and  hold  It"  But  In  our  opinion  this  Instruc- 
tion was  clearly  correct  The  whole  question 
as  stated  by  the  court  was:  Did  the  terms 
of  the  exchange  amount  to  a  completed  sale 
of  the  property  by  each  to  the  other?  In 
other  words,  did  their  minds  meet,  and  was 
there  a  completed  contract  of  exchange  be- 
tween them.  If  that  was  the  case,  then  the 
plaintiff  was  clearly  entitled  to  tlie  posses- 
sion of  the  property,   and  to  recover  the 


Digitized  by 


Google 


60Q 


122  NORTHWESTEBN  REPORTER. 


(8.  IX 


same  in  this  action.  But  if,  on  the  other 
hand,  as  stated  by  the  court,  there  was  no 
such  agreement  and  a  right  reserved,  then 
the  defendant  had  no  right  to  retalte  the 
property. 

It  is  further  contended  by  the  appellant 
that  the  court  erred  In  that  portion  of  his 
charge  to  the  Jury  in  which  he  instructs  them 
that,  if  at  the  time  of  the  negotiation  either 
party  reserved  the  right  to  take  back  his  own 
team  if  dissatisfied,  then  there  was  no  com- 
pleted sale,  and  title  did  not  pass.  But  In 
our  opinion  the  Instruction  correctly  states 
the  law,  for  if  the  transaction  did  not 
amount  to  a  completed  exchange  of  the 
teams,  but  either  party  was  at  liberty  to 
further  examine  the  property  and  return  it 
if  not  satisfactory,  and  retake  his  own  team, 
there  was  not  a  completed  exchange,  and 
the  title  of  the  property  did  not  pass  until 
the  parties  bad  a  reasonable  time  in  which 
to  make  the  examination  and  to  satisfy  them- 
selves as  to  the  representations  made  in  re- 
gard to  the  property. 

It  is  further  contended  by  the  appellant 
that  the  court  erred  in  that  part  of  its 
charge  to  the  Jury  in  which  it  states  to  them, 
In  effect,  that  only  in  case  they  found  there 
was  no  agreement  for  a  return  of  the  prop- 
erty, and  no  right  reserved  to  return  the 
same  by.  the  defendant,  could  their  verdict 
be  for  tite  plaintiff.  While  the  court  does 
not  use  the  language  to  which  exception 
seems  to  have  been  taken,  perhaps  this 
charge  is  sObjMt  to  such  a  construction  in 
effect.  But,  assuming  that  the  court  did  so 
Instruct  the  Jury  in  effect,  we  are  of  the 
opinion  that  there  was  no  error  in  such  an 
instruction.  It  was  only  in  case  there  was 
a  completed  exchange  of  the  teams  that  the 
title  to  the  team  formerly  owned  by  the  de- 
fendant would  pass  to  the  plaintiff;  and 
hence,  if  the  right  was  reserved  by  the  par- 
ties to  make  further  examinations,  there 
was  no  such  completed  contract  as  vested  in 
the  plaintiff,  and  absolute  title  to  the  prop- 
erty or  a  right  to  retain  the  possession  of 
the  same  as  against  the  defendant 

The  learned  counsel  for  the  plaintiff  has 
cited  a  large  number  of  authorities  holding 
when,  and  under  what  circumstances,  parties 
have  a  right  to  rescind  a  contract,  but  in 
our  view  they  are  not  applicable  to  the 
case  at  bar,  but  are  only  applicable  to  cases 
where  there  has  been  a  completed  transfer 
of  the  property,  and  no  right  is  reserved  to 
the  parties  for  the  purpose  of  further  ex- 
amination, with  the  right  to  return  the 
property  if  not  satisfactory. 

This  case  seems  to  have  been  very  fully 
and  fairly  submitted  to  the  Jury,  and,  finding 
no  error  in  the  record,  the  Judgment  of  the 
court  below  and  order  denying  a  new  trial 
are  affirmed. 


NORTHWESTERX  MORTGAQB  TRUST 
CO.  V.  LEVTZOW  et  al. 

(Supreme  Court  of  South  Dakota.    Sept  3, 
1900.) 

1.  Taxation  (S  805*)— Tax  Debd— Action  to 
Recover  Pbopebty— Limitations. 

Where  the  tax  deed  under  which  defendant 
claimed  was  isaued  in  Angnst,  1897,  and  was 
fair  on  its  face,  and  there  was  no  defect,  ju- 
risdictional or  otherwise,  in  the  procedure  lead- 
ing up  to  Its  issuance,  an  action  to  quiet  title 
brought  by  the  former  owner  on  July  25,  1906, 
wag  narred  by  Rev.  Pol.  Code,  §  2214,  prohibit- 
ing such  actions  unless  brought  within  three- 
years  of  the  recording  of  the  tax  deed. 

[Ed.  Note.— For  other  cases,  see  Taxation^ 
Cent.  Dig.  |  1603 ;   Dec.  Dig.  !  SOS.*] 

2.  Alteration  of  Instsuments  (§  27*)— Eras- 
ures—Presumptions. 

In  absence  of  contrary  evidence,  an  erasure 
in  a  deed  is  presumed  to  nave  been  made  prior 
to,  or  contemporaneous  with,  its  execution,  and 
such  presumption  is  stronger  where  the  instru- 
ment is  the  act  of  a  public  officer,  who  is  pre- 
sumed to  have  done  his  duty. 

[Ed.  Note. — For  other  cases,  see  Alteration  of 
Instruments,  Cent.  Dig.  |  235;  Dec.  Dig.  f 
27.*] 

8.  Taxation  (8  765*)— Tax  Deeds— Vauditt 

— Seal— Necessitt. 

Rev.  Pol.  Code,  $  2213,  requires  a  tax  deed 
to  be  executed  by  the  county  treasurer  under 
Us  hand,  etc..  but  does  not  expressly  require  a 
seal.  Rev.  Civ.  Code,  §  1243,  abolishes  all  dis- 
tinctions betwen  sealed  and  unsealed  instru- 
ments, and  section  939  provides  that  the  absence 
of  the  grantor's  seal  shall  not  impair  the  grant. 
Held,  that  as  the  statute  abolished  distinctions 
between  sealed  and  unsealed  instruments,  ex- 
cept as  to  the  statute  of  limitations,  the  absence 
of  a  seal  from  a  tax  deed  would  not  affect  its 
validity,  though  the  form  prescribed  by  statute 
contained  the  word  "seal"  after  the  treasurer's 
name ;  the  deed  not  beinf;  affected  in  any  way 
by  any  statute  of  limitations. 

[Ed.  Note.— For  other  cases,  see  Taxation^ 
Cent.  Dig.  {  1524;    Dec.  Dig.  i  765.*] 

Appeal  from  Circuit  Court,  Hand  County. 

Action  by  the  Northwestern  Mortgage 
Trust  Company  against  Henry  Levtzow  and 
another.  From  a  Judgment  for  defendants^ 
plaintiff  appeals.    Affirmed. 

Sterling  &  Clark,  for  appellant  Frank 
Turner,  for  respondents. 

McCOY,  J.  This  is  an  action  to  quiet 
title  by  the  owner  of  the  fee  as  against  a  tax 
deed.  Defendants  claim  title  through  a  tax 
deed  issued  on  the  2d  day  of  August,  1897, 
to  one  Blackman,  for  the  land  in  question 
which  is  situated  in  Hand  county.  Thi» 
action  was  commenced  on  the  25th  day  of 
July,  1906.  The  defendants,  after  pleading 
title  under  the  Blackman  tax  deed,  also, 
among  other  things,  pleaded  the  three-year 
statute  of  limitations  provided  for  by  sec- 
tion 2214,  Rev.  Pol.  Code.  A  careful  ex- 
amination of  the  record  discloses  no  juris- 
dictional defect  in  the  tax  procedure  pre- 
ceding the  tax  sale  and  Issuance  of  said  tax 
deed,  which  deed  is  fair  on  its  face.  The 
facts  In  this  case  are  very  similar  to  those 


•For  outer  cues  le*  ume  topic  and  uctlon  NUMBER  In  Dec.  &  Am.  Diss.  1907  to  date,  *  Reporter  Indexea 


Digitized  by  VjOOQ  l€ 


8.D.) 


CHICAGO,  M.  &  ST.  P.  RY.  CO.  ▼.  MASON. 


601 


in  tbe  case  of  Bandow  v.  Wolven,  20  S.  D. 
445,  107  N.  W.  204,  and  thlB  case  mast  be 
goremed  by  that  decision.  The  three-year 
statute  of  limitations  is  a  complete  bar  to 
this  action. 

On  the  face  of  the  tax  deed  offered  In  evi- 
dence certain  words,  constituting  a  clause, 
appear  to  have  been  erased  by  the  drawing 
of  a  pen  lengthwise  through  such  words. 
It  is  contended  by  appellant  that  from  the 
fact  of  this  erasure  so  appearing  on  the 
face  of  said  tax  deed  that  It  renders  said 
tax  deed  suspicious,  and  casta  the  burden 
of  proof  on  respondents  to  show  the  time 
when  and  the  circumstances  how  such  era- 
sure came  to  exist.  It  has  heretofore  been 
held  by  this  court  that,  in  the  absence  of 
other  evidence  to  the  contrary,  such  an  era- 
sure is  presumed  to  have  been  made  prior 
to  or  contemporaneous  with  the  execution  of 
the  instrument  Moddle  v.  Breiland,  9  S.  D. 
006,  70  N.  W.  637;  Bank  v.  Peeney,  12  S. 
D.  156,  80  N.  W.  186,  46  L.  R.  A.  732,  76  Am. 
St.  Rep.  594;  Cosgrove  v.  Fanebust,  10  S.  D. 
213,  72  N.  W.  469.  And  this  presumption 
is  stronger  where  the  Instrument  is  tiie  act 
of  a  pablic  officer  who  is  presumed  to  act  law- 
fully and  do  his  duty,  and  who  has  no  per- 
sonal interest  in  the  transaction.  2  Cyc.  242. 
There  is  no  evidence  in  the  record  that 
would  disturb  or  change  this  presumption. 

The  appellant  also  contends  that  the  tax 
deed  is  irregular  and  void  because  not  In 
the  statutory  form  prescribed  by  section  2213, 
Rev.  Pol.  Code.  The  only  particular  where- 
in the  deed  in  question  is  not  as  prescribed 
by  the  form  is  that  the  "[Seal]"  after  the 
name  "Peter  Olson,  Treas.,"  Is  omitted.  It 
will  be  observed  that  section  2213  provides 
that  the  "said  deed  shall  be  executed  by  the 
county  treasurer  under  his  band,"  etc.,  not 
under  his  hand  and  seal,  but  under  his  band 
only,  although  the  "[Seal]"  appears  In  the 
prescribed  form.  It  will  also  be  remembered 
that  all  distinction  between  sealed  and  un- 
sealed instruments  has  been  abolished  in 
this  state  (section  1243,  and  section  939,  Rev, 
Civ.  Code),  except  as  to  the  statute  of  limita- 
tions. Gibson  V.  Allen,  19  S.  D.  617,  104  N. 
W.  275.  There  is  no  possible  action  that 
might  be  maintained  on  any  of  the  terms  or 
conditions  of  this  tax  deed  by  or  ag;ainst  any 
of  the  parties  thereto,  or  any  of  their  succes- 
sors in  interest,  that  could  in  any  possible 
way  be  affected,  or  that  might  by  any  possi- 
bility affect  any  statute  of  limitations  by 
the  omission  or  absence  of  the  "[Seal]"  from 
the  Instrument  in  question.  The  absence  of 
the  "[Seal]"  would  have  no  more  effect  on 
the  legal  status  of  the  said  instrument  than 
would  the  omission  of  one  of  the  periods  or 
one  of  the  commas  appearing  in  the  punctua- 
tion of  this  statutory  form. 

No  error  appearing  in  the  record,  the 
Judgment  of  the  circuit  court  is  affirmed. 


CHICAGO,  M.  &  ST.  P.  RY.  00.  v.  MASON 
et  al. 

(Supreme  Court  of  South  Dakota.    Sept.  3, 
1909.) 

1.  Eminent   Domain   (J    51*)— Railboads  — 
Gbavel  Pit. 

Rev.  Civ.  Code,  {  488,  subd.  4,  empowering 
any  railroad  to  lay  out  its  road,  not  exceeding 
100  feet  in  width,  and  for  the  purpose  of  ob- 
taining gravel  to  take  as  much  land  as  may  be 
necessary  for  the  proper  construction,  operation, 
etc.,  of  the  road,  authorizes  a  -  railroad  to  con- 
demn land  outside  its  right  of  way  to  obtain 
gravel  for  ballast,  etc.,  where  it  has  no  other 
gravel  nearer  than  1(X>  miles. 

[Eld.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  1 105;  Dec.  Dig.  i  51.*] 

2.  Eminent  Domain  (J  68*) — Necessity— De- 
TEBMiNATioN— Conclusiveness. 

Under  the  laws  of  this  state,  the  ezistence- 
of  the  necessity  for  exercising  the  right  of  emi- 
nent domain,  where  it  Is  first  shown  that  the 
use  is  public,  is  not  open  to  judicial  Investiga- 
tion ;  the  tiody  having  power  to  exercise  the 
right  Ijeing  also  empowered  to  determine  the 
necessity. 

[Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  !  169;    Dec.  Dig.  {  68.*] 

3.  Eminent  Domain  (8  67*)- Nbokssitt— De- 

TEBMINATION— By   WhOM. 

In'  the  absence  of  some  consUtntlonal  or 
statutory  provision  to  the  contrary,  the  neces- 
sity of  exercising  the  right  of  eminent  domain 
is  a  political,  and  not  judicial,  question ;  the 
legislative  determination  being  conclusive,  and 
the  conrts  having  no  power  to  review  unless  so 
authorized. 

[Ed.  Note.— For  other  cases,  see  Bhninent  Do- 
main, Cent.  Dig.  i  166 ;    Dec.  Dig.  §  67.*] 

4.  Eminent  Domain  ({  68*)— Delegation  of 

POWEB. 

While  the  Legislature  may  Itself  determine 
the  necessity  for  the  exercise  of  the  power  to 
condemn,  it  may,  unless  prohibited  by  the  Con- 
stitution, delegate  the  power  to  public  officers, 
nr  to  private  corporations  established  to  carry 
on  enterprises  in  which  the  public  are  interestecl, 
and  their  determination  that  a  necessity  exists 
is  conclusive ;  there  being  no  restraint  in  this 
power  except  as  to  compensation. 

[E!d.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  |  169;   Dec.  Dig.  S  6&*] 

5.  Eminent  Domain  (8  58*)— Necessity— De- 
tebmination— Conclusiveness. 

A  company  or  individual  empowered  to  ex- 
ercise«the  right  of  eminent  domain  may  not  ap- 
propriate more  land  than  Is  necessary  for  its 
use,  and  the  courts  may  prohibit  excessive  ap- 
propriation or  the  taking  of  land  not  within  the 
scope  of  the  purpose  required. 

[Ed.  Note.— For  other  cases,  see  Eknlnent  Do- 
main, Cent.  Dig.  S|  147-160;  Dec.  Dig.  S  58.*] 

6.  Eminent  Domain  (|  68*)- Necessity— De- 
tebmination— Conclusiveness.  _ 

While  the  courts  may  determine  whether 
the  use  for  which  private  property  proposed  to 
be  taken  under  the  power  of  eminent  domain  is 
in  fact  a  public  use  or  not,  where  a  corpora- 
tion exercises  the  ri^ht  in  good  faith  and  with- 
out oppression,  its  discration  in  the  selection  of 
land  will  not  lie  interfered  with  by  the  courts. 

[Eld.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  |  170;   Dec.  Dig.  {  68.*] 

7.  Eminent  Domain  (J  202*)— Compensation' 
—Value— Evidence— <iBAVBi.  Pit. 

In  proceedings  by  a  railroad  to  condemn 
land  for  a  gravel  pit,  evidence  of  the  value  of 


•For  other  caMs  m*  same  toplo  and  Hctloa  NUMBBR  In  Dec.  ft  Am.  Digs.  1907  to  data,  ft  Reporter  Indexe» 


Digitized  by  VjOOQ  l€ 


602 


122  NORTHWESTERN  BEPOKTEIt 


(S.D. 


the  graTel  and  eand  per  yard  in  connection  with 
an  estimate  of  the  number  of  cubic  yards  on 
the  land  was  inadmissible  on  the  question  of 
damages;  the  estimate  being  speculative  only. 
[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  §  541 ;   Dec.  Dig.  i  202.*] 

8.  Eminent  Domain  (if  134,  140*)  —  Bail- 

BOADS— Damages. 

Where  a  railroad  condemned  land  for  a 
gravel  pit,  the  measure  of  damages  was  the  full 
market  value  of  the  land  taken  for  any  and  all 
uses  to  which  it  mi{[ht  be  put,  in  the  light  of 
present  business  conditions,  and  those  that  might 
be  reasonably  expected  in  the  immediate  fu- 
ture, together  with  such  damages  as  the  owner 
might  suffer  to  the  remaining  portion  of  his 
farm  by  reason  of  the  taking. 

[Ed.  Note.— For  other  cases,  see  Eminent 
Domain,  Cent  Dig.  H  356,  371;  Dec.  Dig.  §! 
134,  140.*] 

Appeal  from  Circuit  Court,  Aurora  County. 

Condemnation  proceedings  by  the  Chicago, 
Ikltlwaukee  &  St.  Paul  Railway  Company 
against  Qeorge  Mason  and  others.  From  the 
judgment,  said  Mason  appeals.    Affirmed. 

H.  F.  Fellows,  for  appellant  Preston  & 
liannett  and  Chas.  E.  Vroman,  for  resp<H>d- 
ent. 


McCOT,  J.  This  is  a  proceeding  instituted 
by  the  respondent,  Chicago,  Milwaukee  & 
St.  Paul  Railway  Company,  a  corporation, 
under  the  statute  of  this  state,  to  condemn 
S4.8  acres  of  land  belonging  to  the  appellant, 
George  Mason.  Respondent  in  Its  petition.  In 
substance,  alleges  that  It  is  a  railway  cor- 
poration organized  under  the  laws  of  the 
state  of  Wisconsin,  and  for  many  years  last 
past  has  owned,  operated,  and  maintained 
lines  of  railroad  within  this  state,  and  that 
one  of  these  lines  enters  the  state  at  Its 
easterly  boundary  In  the  county  of  I4ncoIn, 
and  extends  westward  through  said  county 
Into  and  across  the  counties  of  Tamer,  Mc- 
Cook,  Davison,  Aurora,  and  so  on  westward; 
that  as  such  railroad  corporation  it  conducts 
and  carries  on  a  large  and  important  traffic 
as  a  common  carrier  in  the  transportation  of 
passengers  and  freight;  that,  In  order  to 
maintain,  operate,  and  repair  its  roadbed 
and  tracks  in  a  safe  condition  for  the  trans- 
action of  Its  business,  It  Is  necessary  that 
it  should  have  gravel  beds  In  order  that  It 
might  be  able  to  ballast  Its  tracks  and  keep 
its  roadbed  In  a  safe  condition  for  nse;  that 
its  said  line  of  railroad  crosses  the  west 
half  of  the  southwest  quarter  of  section  8, 
township  103,  range  66,  In  Aurora  county, 
and  that  the  appellant,  George  Mason,  Is  the 
owner  of  said  tract  of  land  and  of  that  part 
thereof  lying  north  of  the  right  of  way  of 
this  petitioner,  containing  34.8  acres;  that 
now  It  Is  necessary  to  ballast  with  gravel 
Its  tracks  upon  Its  roadbed  and  to  use  gravel 
to  keep  its  roadbed  and  tracks  in  a  safe  con- 
dition for  a  long  distance  along  its  said  line 
both  east  and  west  of  the  place  where  its 
said  right  of  way  crosses  the  said  land  of 


the  said  George  Mason;  that  It  has  no  gravel 
nearer  than  100  miles  and  more  from  said 
real  estate,  and  that,  In  order  to  obtain  a 
supply  of  gravel  sufficient  for  Its  said  use, . 
the  appellant  desires,  and  it  is  necessary  for 
It  to  take  and  appropriate  and  condemn,  the 
whole  of  the  said  34.8  acres  of  said  land 
so  owned  by  said  Mason,  and  that  It  has 
determined  that  it  is  necessary  to  take  the 
said  tract  of  land  for  the  said  purpose;  that 
the  petitioner  and  the  said  defendant,  George 
Mason,  are  unable  to  agree  upon  the  terms 
or  consideration  for  the  transfer  to  this 
plaintiff  of  the  said  real  estate,  and  that  this 
petitioner  says  that  by  reason  of  Its  being 
invested  by  law  with  the  right  and  privilege 
of  taking  and  appropriating  said  property, 
and  of  damaging  the  same  for  the  said  pur- 
poses and  uses  hereinbefore  stated.  It  has 
determined  to  exercise  the  right  of  taking 
the  said  described  land  and  the  whole  there- 
of for  the  said  purpose  as  provided  by  law, 
and  to  condemn  all  of  the  said  34.8  acres 
of  said  land  for  the  public  nse  aforesaid  as 
contemplated  by  the  laws  of  this  state  per- 
taining to  eminent  domain.  The  said  cause 
was  placed  on  the  calendar  for  trial,  and, 
upon  call  of  the  case  the  defendant,  Mason, 
appeared  and  made  the  following  motion: 
"Comes  now  the  defoidant,  George  Mason, 
and  moves  the  court  to  dismiss  the  petition 
of  the  pialnticr  for  the  reason  that  the  same 
does  not  state  facts  authorizing  the  con- 
demnation of  the  property  sought  to  be  con- 
demned." This  motion  was  overruled,  and 
the  defendant  duly  excepted.  Evidence  was 
then  adduced  by  the  petitioner  tending  to 
substantiate  the  allegations  of  said  petition, 
and  also  to  show  the  value  of  the  land  sought 
to  be  condemned.  The  question  of  the  value 
of  the  said  land  was  submitted  to  a  Jury 
under  instructions  of  the  court,  and  a  ver- 
dict returned  finding  the  damages  for  the 
taking  of  said  land  to  be  $2,000,  and  that, 
upon  the  payment  of  said  amount  the  plain- 
tiff shall  have  title  to  said  land  for  the 
purposes  of  obtaining  gravel  for  nse  upon 
Its  railroad  bed  for  ballast,  and  also  for 
keeping  Its  roadbed  in  a  safe  and  secure  con- 
dition for  use. 

From  the  judgment  thus  entered  the  de- 
fendant. Mason,  as  appellant,  brings  the 
cause  to  this  court  by  appeal,  contending, 
first,  that  under  the  law  of  this  state  respond- 
ent has  no  right  or  authority  under  any  cir- 
cumstances to  condemn  the  land  In  question 
which  lies  outside  of  the  right  of  way  for 
the  purposes  alleged,  but  we  are  of  the 
opinion  that  subdivision  4,  S  488,  Rev.  Civ. 
Code,  which  provides  that  a  railway  corpora- 
tion shall  have  power  to  lay  out  Its  road 
not  exceeding  100  feet  In  width,  and  to  con- 
struct the  same,  and  for  the  purposes  of  ob- 
taining gravel  to  take  as  much  land  as  may 
be  necessary  for  the  proper  construction, 
operation,   and  security  of  the  road,   suffl- 


•For  oUier  cues  SM  lam*  topic  and  lectlon  NUMBER  In  Dec.  &  Am.  Dlga.  1907  to  data,  A  Reportw  Indaxw 


Digitized  by  VjOOQ  l€ 


&I>.) 


CHICAGO,  M.  &  ST.  P.  RY.  CO.  v.  MASON. 


ciently  authorises  a  railway  corporation  to 
condemn  land  for  the  purpose  of  obtaining 
gravel  under  the  allegations  and  evidence  In 
the  case.  The  appellant  further  contends 
that  the  evidence  In  this  case  Is  wholly  In- 
sufficient to  show  that  the  necessity  exists, 
or  has  been  shown  to  exist,  for  the  con- 
demnation, but  we  are  of  the  opinion  that 
in  this  contention  the  appellant  Is  in  error, 
and  that  the  findings  of  the  circuit  court 
are  fully  sustained  by  the  evidence.  We  are 
of  the  opinion  that,  under  the  law  of  this 
state,  the  question  of  the  existence  of  the 
necessity  for  exercising  the  right  of  eminent 
domain,  where  it  is  first  shown  that  the  use 
is  public,  is  not  open  to  Judicial  investigation 
and  determination,  but  that  the  body  having 
power  to  exercise  the  right  of  eminent  do- 
main is  also  invested  with  power  to  deter- 
mine the  existence  of  the  necessity;  that  by 
the  statutes  of  this  state  the  Legislature,  in 
whom  this  power  originally  existed,  has  del- 
egated the  power  determining  the  necessity 
to  those  bodies  authorized  to  exercise  the 
right  of  eminent  domain.  In  the  absence 
of  some  constitutional  or  statutory  provision 
to  the  contrary,  the  necessity  and  expediency 
of  exercising  the  right  of  eminent  domain 
are  questions  political,  and  not  judicial.  The 
determination  of  those  questions  belongs  to 
the  sovereign  i»ower.  The  legislative  deter- 
mination is  conclusive,  and  the  courts  have 
no  power  to  review,  unless  so  authorized. 
AVhile  the  Legislature  may  itself  exercise  the 
right  of  determining  the  necessity  for  the 
exercise  of  the  power  to  condemn,  it  may, 
unless  prohibited  by  Constitution,  delegate 
the  power  to  public  officers  or  to  private 
corporations  established  to  carry  on  enter- 
prises in  which  the  public  are  interested,  and 
their  determination  that  a  necessity  exists 
Is  conclusive.  It  is  generally  held  that,  in 
the  absence  of  any  statutory  provision  sub- 
mitting the  question  of  necessity  to  the 
courts,  the  decision  of  the  question  lies  with 
the  body  to  whom  the  state  has  delegated  the 
authority  to  talce,  and  there  is  no  restraint 
In  this  power  except  as  to  compensation.  13 
Cyc.  629;  Smith  v.  Gould,  59  Wis.  631,  18 
X.  W.  457;  Gibson  v.  Cann,  28  Colo.  499, 
tie  Pac.  879;  Waterbury  v.  Piatt,  76  Conn. 
43.5,  56  Atl.  856;  O'Hare  v.  Chicago  Ry. 
Co.,  139  111.  151,  28  N.  E.  923;  Barrett  v. 
Kemp,  91  Iowa,  296,  59  N.  W.  76;  Eastern 
Ry.  Co.  v.  Boston  Ry.  Co.,  HI  Mass.  125, 
15  Am.  Rep.  13;  State  v.  Rapp,  39  Minn.  65, 
38  N.  W.  926;  In  re  N.  T.  Cent.  Ry.  Co.,  77 
N.  T.  248.  It  is  never  permissible  for  a 
company  or  individuals  invested  with  the 
power  to  exercise  the  right  of  eminent  do- 
main to  appropriate  more  land  than  is 
necessary  for  its  use,  and  the  courts  have 
power  to  prohibit  excessive  appropriation,  or 


the  taldng  of  land  not  within  the  scope  of 
the  purpose  required,  and  the  courts  have 
power  to  determine  whether  the  use  for 
which  private  property  proposed  to  be  talcen 
under  authority  authorized  by  Legislature  is 
in  fact  a  public  use  or  not  15  Cyc.  632; 
Smith  V.  Gould,  supra;  St.  Louis  v.  Grlswold, 
58  Mo.  175.  Where  a  duly  incorporated  com- 
pany authorized  by  statute  to  take  land  for 
public  use  exercises  the  right  of  eminent  do- 
main in  good  faith  and  Is  not  guilty  of  op- 
pression, its  discretion  in  tike  selection  of 
land  will  not  be  interfered  with  by  the 
courts.  Postal  Tel.  Co.  v.  Oregon  Short 
Line,  23  Utah,  474,  65  Pac.  735,  90  Am.  St 
Rep.  705;  Piedmont  Cotton  Mills  v.  Georgia 
Ry.  Co.,  131  Ga.  129,  62  S.  E.  52.  It  Is  a 
matter  of  common  knowledge  that  gravel 
may  be  used  to  advantage  in  maintaining  a 
railway  track  and  keeping  it  lu  proper  con- 
dition for  traffic,  and  the  Legislature  of  this 
state  has  delegated  to  the  railway  corpora- 
tions by  section  488,  Rev.  Civ.  Code,  power  to 
take  land  for  the  purpose  of  obtaining  grnvel, 
and  the  railway  company  thus  empowered  is 
the  Judge  of  the  conditions  rendering  it  nec- 
essary to  use  gravel  for  such  purpose,  and 
we  are  of  the  opinion  that  the  amount  of 
land  taken  in  this  instance  is  not  excessive, 
and  that  there  is  nothing  In  the  taking  or 
selection  of  the  locality  for  the  condemna- 
tion from  which  fraud  or  oppression  might 
be  Inferred.  On  the  trial  the  appellant  of- 
fered to  prove  the  value  per  yard  of  gravel 
and  sand  as  a  method  of  arriving  at  the 
value  of  the  land,  taken  in  connection  with 
an  estimate  of  the  number  of  cubic  yards 
of  gravel  and  sand  on  the  34.8  acres  of  land 
in  question.  The  offer  was  objected  to  as 
immaterial,  and  not  a  proper  measure  of 
damage,  and  to  the  ruling  of  the  court  sus- 
taining the  objection  the  appellant  excepted, 
and  now  urges  that  such  ruling  was  error. 
But  we  are  of  the  opinion  that  the  objection 
was  properly  sustained.  The  estimate  as  to 
the  number  of  cubic  yards  of  sand  and  gravel 
is  speculation  only,  and  would  afford  no  true 
or  reasonable  rule  as  to  the  value  of  the  land. 
The  jury  were  Instructed  that  they  should 
allow  the'  appellant  the  full  market  value 
of  the  34.8  acres  of  land  taken  for  any  and 
all  uses  to  which  said  land  might  be  put  in 
view  and  in  the  light  of  present  business 
conditions,  and  those  that  might  be  reason- 
ably expected  in  the  immediate  future,  to- 
gether with  such  damages  as  appellant  might 
suffer  to  the  remaining  portion  of  his  farm 
by  reason  of  having  the  34.8  acres  taken 
therefrom,  and  it  occurs  to  us  that  the  learn- 
ed trial  court  properly  submitted  the  ques- 
tion of  damage  to  the  Jury. 

Finding  no  error  in  the  record,  the  Judg- 
ment of  the  circuit  court  is  affirmed. 


Digitized  by 


Google 


604 


122  NORTHWESTERN  REPORTER 


(&D. 


HOLLISTER  t.  STRAHON. 

(Supreme  Court  of  South  Dakota.    Sept.  8, 

lOOe.) 

1.  LnciTATioN  OF  Actions  (|  21*)— Assumed 
Dbbt— Simple  Contbact  Debtob. 

A  grantee  of  mortgaged  property  assuming 
a  mortgage  by  a  clause  in  a  deed  becomes  a 
simple  contract  debtor  only,  and  la  not  bound 
as  by  a  covenant  under  seal;  and  hence  his 
liability  is  within  the  six-year  statute  of  limita- 
tions. 

[Ed.  Note.— For  other  cases,  see  Limitation  of 
Actions,  Cent  Dig.  {  86;    Dec  Dig.  f  21.»J 

2.  MoBTOAOES  (1 292*)— Conveyance  of  Mobt- 

GAOKD  PBOFBBTX  —  ASSUUFTION  BT  GbaN- 
TSE. 

A  grantee  of  mortgaged  property  who  has 
assumed  the  mortgage  debt  by  a  clause  in  the 
deed  is  not  liable  In  an  action  of  covenant,  but 
only  in  assumpsit. 

[E^.  Note.— For  other  cases,  see  Mortgages, 
Cent.  Dig.  i  766;   Dec.  Dig.  i  292.*] 

Appeal  from  Circuit  Court,  Mlnnebaba 
County. 

Action  by  F.  B.  HoUister  against  J.  O. 
Strabon,  impleaded  with  others.  Judgment 
in  favor  of  defendant  Strabon,  and  plaintiff 
appeals.    Affirmed. 

S.  H.  Wright,  for  appellant  MuIIer  & 
Conway,  for  respondent 

CORSON,  J.  This  case  is  before  us  upon 
appeal  by  the  plaintiff  from  a  Judgment  dis- 
missing bis  complaint.  The  action  was  In- 
stituted by  the  plaintiff  to  foreclose  a  $200 
mortgage  and  to  recover  of  the  defendant 
Strabon  the  sum  secured  by  said  mortgage, 
with  Interest  thereon  at  the  rate  of  12  per 
cent,  per  annum  from  the  17th  day  of  Feb- 
ruary, 1894.  It  Is  disclosed  by  the  record 
that  on  the  17th  day  of  February,  1890,  two 
of  the  defendants,  Rasmus  K.  Hafsaas  and 
Jennie  Hafsaas,  Impleaded  with  the  respond- 
ent, executed  to  the  plaintiff  their  promis- 
sory note  for  the  sum  of  $200,  with  Interest 
at  the  rate  of  12  per  cent,  per  annum,  and 
secured  the  same  by  a  mortgage  executed  by 
them  on  certain  lots  in  the  city  of  Sioux 
Falls.  The  note  was  made  payable  one  year 
from  Its  date,  and  no  part  of  the  principal 
has  been  paid,  and  no  part  of  the  interest 
since  February  17,  1894,  has  been  paid.  It 
is  further  disclosed  by  the  record  tbat  on 
the  19th  day  of  March,  1890,  said  Hafsaas 
conveyed  the  property  to  the  defendant  and 
respondent  Strabon  under  seal,  and  that  said 
deed  contained  the  usual  covenants  of  war- 
ranty, "except  two  certain  mortgages  for 
$1,000  and  $200.00,  which  said  second  party 
(Strabon)  hereby  assumes  and  agrees  to  pay 
together  with  a  $60.00  commission  mortgage 
of  said  $1,000  mortgage  loan."  It  is  upon 
this  clause  In  the  deed  from  Hafsaas  to 
Strabon  that  plaintiff  seeks  to  recover  from 
the  said  Strabon  the  $200  and  Interest  al- 
leged to  be  due  on  plaintiff's  notes  secured 
by  his  said  mortgage ;    the  property  having 


been  sold  and  not  redeemed  under  tbe  $1,000 
mortgage.  It  further  appears  from  tbe  find- 
ings of  the  court  that  this  action  was  not 
commenced  until  more  than  10  years  after 
tbe  last  payment  of  interest  on  the  said  $200 
note  on  February  17,  1894.  Tbe  facts  are 
fully  stated  in  the  complaint,  and  the  re- 
spondent by  bis  answer  pleaded  Inter  alia 
the  six-year  statute  of  limitations  In  bar  of 
tbe  action. 

It  will  be  observed,  therefore,  that  the 
note  and  mortgage  executed  by  Hafsaas  to 
the  plaintiff  were  executed  in  February, 
1890;  that  Hafsaas  conveyed  tbe  mortgaged 
property  in  March,  1890,  to  the  appellant, 
who  assumed  tbe  payment  of  the  note,  to- 
gether with  the  $1,000  note  and  mortgage 
and  the  $60  mortgage.  The  case  was  tried 
to  the  court,  who  found  the  facts  substan- 
tially as  above  stated,  and  among  other  con- 
clusions of  the  court  are  the  following: 
"That  more  than  10  years  have  elapsed  since 
the  making  of  said  deed  by  tbe  defendant 
Rasmus  K.  Hafsaas  and  wife  to  the  defend- 
ant J.  G.  Strabon  prior  to  the  commence- 
ment of  this  action,  and  that  this  action 
against  the  said  defendant  J.  G.  Strabon  is 
barred  by  the  statute  of  limitations."  Tbe 
only  question  presented  Is:  Did  the  court 
err  in  its  conclusion  of  law  that  plaintiff's 
action  was  barred  by  the  six-year  statute  of 
limitations? 

It  is  contended  by  tbe  appellant  that  as 
the  original  mortgage  from  Hafsaas  to  the 
plaintiff  was  a  sealed  Instrument,  and  the 
deed  from  Hafsaas  to  Strabon  was  also  a 
sealed  instrument,  the  six-year  statute  of 
limitations  is  not  applicable  to  tbe  case, 
and  that  tbe  statute  of  limitations  as  to 
tbe  respondent  Strabon  who  assumed  the 
payment  of  the  amount  due  on  the  note 
and  mortgage  is  the  20-year  statute  ap- 
plicable to  sealed  Instruments.  Tbe  learn- 
ed circuit  court  in  adopting  tbe  view  tbat 
plaintiff's  claim  was  barred  by  the  six-year 
statute  of  limitations  was  clearly  right  It 
will  be  noticed  that  the  respondent  Strabon 
was  not  a  party  to  the  original  mortgage 
executed  by  Hafsaas  to  tbe  appellant,  nor 
did  be  sign  tbe  deed  executed  by  Hafsaas 
to  himself.  By  accepting  the  deed  wltb  tbe 
clause  assuming  the  mortgages  therein,  he 
became  liable  to  the  plaintiff  for  payment 
of  the  sum  specified  in  the  notes  and  mort- 
gages assumed  by  him  as  a  simple  debtor 
only,  and  tbe  same  could  only  be  recovered 
of  him  by  the  plaintiff  In  an  ordinary  action 
of  assumpsit  It  seems  to  be  generally  held 
that  a  party  assuming  the  payment  of  an 
existing  indebtedness  by  the  acceptance  of 
a  conveyance  made  to  him  does  not  become 
liable  In  an  action  of  covenant,  as  that  ac- 
tion can  only  be  maintained  against  a  party 
who  has  himself  executed  the  Instrument  un- 
der seal.  Pike  v.  Brown,  7  Gush.  (Mass.)  133; 
Maule  V.  Weaver,  7  Pa.  829;  Bishop  v.  Doug- 


•Por  otb*r  cue*  sm  same  topic  and  cecUon  NUMBER  in  Dec.  &  Am.  Dice.  IW  to  date,  ft  Reporter  Indazea 


Digitized  by  VjOOQ  l€ 


8.D.) 


MoGEART  ▼.  BROWN. 


605 


lass,  25  Wis.  696;  Taylor  v.  ForlDea,  101  Ya. 
658.  44  S.  E.  888;  Atlanta  K.  &  N.  Railway 
Go.  V.  McKinney,  124  Ga.  929,  53  S.  B.  701, 
6  L.  R.  A.  (N.  S.)  436,  110  Am.  St  Rep.  216. 
And  It  has  been  furtber  held  that,  Inasmucb 
as  tbe  action  of  covenant  would  not  He  un- 
der tbe  old  common-law  system,  an  action  of 
debt  or  assumpsit  could  only  be  maintained, 
and  therefore  tbe  statute  of  limitations  ap- 
plicable to  ordinary  debts  was  to  be  enforc- 
ed. In  Blabop  t.  Douglass,  supra,  tbe  learn- 
ed Supreme  Court  of  Wisconsin  held  as  ap- 
pears by  the  headnote  that:  *^he  convey- 
ance not  being  signed  and  sealed  by  such 
grantee,  his  obligation  to  pay  tbe  mortgage 
debt  Is  one  of  simple  contract  only  within 
the  meaning  of  the  statute  of  limitations." 
And,  as  that  case  Is  directly  In  point,  we  feel 
justified  In  quoting  the  material  part  of  the 
opinion.  In  wtlch  the  court  says:  "And  we 
think  the  weight  of  authority  and  the  result 
of  tbe  argument  upon  principle  concur  in 
holding  that  It  is  but  a  simple  contract  It 
is  so  for  the  reason  that  the  party  has  no- 
where bound  himself  under  seal.  The  seals 
of  tbe  grantors  in  the  deed  to  him  are  not 
his  seals.  Tbe  Instrument  does  not  profess 
to  bind  him  under  seal.  True,  It  contains  a 
clause  that  he  assumes  and  promises  to  pay 
the  mortgage  debt;  but  it  does  not  contem- 
plate that  he  Is  to  become  bound  by  that 
promise  by  signing  and  sealing  the  instru- 
ment, but  only  by  accepting  It  and  the  bene- 
fit under  it.  It  is  therefore  a  mere  promise 
which  acquires  its  binding  force  by  acts  in 
pals  without  any  signature  or  sealing  what- 
ever. And  It  seems  Impossible  upon  such 
facts  to  say  that  the  party  has  promised  un- 
der seal."  The  court  after  commenting  up- 
on certain  authorities  ctled  by  counsel  for 
the  appellant  concludes:  "We  ihink.  the  per- 
sonal liability  of  the  appellants  to  pay  the 
mortgage  debt  upon  the  facts  stated  In  the 
complaint  arose  only  out  of  a  simple  con- 
tract; and,  this  being  so,  It  was  conceded 
that  all  claim  against  them  for  any  deficien- 
cy was  barred  by  tbe  statute."  In  Taylor  v. 
Forbes,  supra,  tbe  Supreme  Court  of  Appeals 
of  Virginia  held  that:  "An  agreement  by  tbe 
grantee  In  a  deed  to  assume  an  outstanding 
debt  is  a  simple  contract  and  not  a  specialty, 
and  is  barred  in  three  years."  And  In  the 
case  the  court  quotes  with  approval  the  fol- 
lowing from  volume  3,  pp.  362-3,  of  a  worl^ 
of  Mr.  Conway  Robinson  upon  Common-Law 
Pleading  and  Practice,  who,  after  a  review 
of  the  early  Elngllsh  cases,  says:  "Covenant, 
thai,  will  He  only  where  tbe  Instrument  is 
actually  signed  and  sealed  by  the  party,  or 
by  his  authority."  In  Pike  v.  Brown,  supra, 
tbe  Supreme  Court  of  Massachusetts,  speak- 
ing by  Chief  Justice  Shaw,  says:  "The 
pctnelple  Is  well  settled  that  where  one  by 
dMd  pen  grants  land,  and  conveys  any  right 
title,  or  interest  in  real  estate  to  another, 
and  where  there  Is  any  money  to  be  paid  by 


the  grantee  to  the  grantor,  or  any  other  debt 
or  duty  to  be  performed  by  the  grantee  to 
the  grantor,  or  for  his  use  and  benefit  and 
the  grantee  accepts  the  deed  and  enters  on 
the  estate,  the  grantee  becomes  bound  to 
make  such  payment  or  perform  such  duty, 
and,  not  having  sealed  the  Instrument,  he  is 
not  Iwund  by  it  as  a  deed;  but  It  being  a 
duty,  the  law  Implies  a  promise  to  do  It, 
upon  which  promise,  in  case  of  failure,  as- 
sumpsit win  He."  It  is  quite  clear,  there- 
fore, that  the  respondent  was  entitled  to  the 
benefit  of  the  six-year  statute  of  limitations. 
The  judgment  of  the  circuit  court  and  or- 
der denying  a  new  trial  are  aflSrmed. 


McGEARY  V.  BROWN  et  al. 

(Supreme  Court  of  South  Dakota.    Sept  3, 
1909.) 

1.  Seabches  and  Seizubes  (J  7*)— DiscovERt 
—Examination  of  Cobpobate  Books— Con- 
stitutional Pbovisionb. 

The  equitable  owner  of  about  one-third  of 
the  preferred  stock  of  a  corporation  was  equi- 
tably entitled  to  examine  the  corporate  books  to 
determine  her  interest,  and  an  order  of  court 
granting  such  examination  in  an  action  for  a 
receivership  for  the  corporation  did  not  infringe 
the  provision  of  the  federal  Constitution  guar- 
anteeing security  against  unreasonable  searches, 
etc. 

[Eld.  Note.— For  other  cases,  see  Searches  and 
Seizures,  Cent  Dig.  i  6 ;   Dec.  Dig.  {  7.*] 

2.  DiscovEBT  (§  97*1— Notice— Nbcessitt. 

Code  Civ.  Proc.  {  477,  authorizes  the  court 
before  whom  an  action  is  pending  in  its  discre- 
tion and  upon  due  notice  to  order  either  party 
to  give  the  other  permission  to  copy  from  books, 
etc.,  in  his  possession  relating  to  the  merits  of 
the  action,  and  authorizes  the  exclusion  of  the 
books  from  evidence  or  the  punishment  of  the 
offending  party,  or  both,  upon  refusal  to  comply 
with  such  order.  Plaintiff  alleged  that  she  was 
the  equitable  owner  of  a  number  of  shares  of 
preferred  stock  of  defendant  corporation,  and 
that  defendant  directors  had  perpetuated  them- 
selves in  office,  wasted  the  assets,  and  rendered 
the  corporation  insolvent  and  moved  for  a  re- 
ceiver, and,  upon  joinder  of  issues  upon  that 
motion,  requested  permission  to  examine  the 
corporate  books  to  prepare  for  trial,  and  asked 
a  continuance  of  the  bearing.  Held,  that  the 
purpose  of  section  477  was  to  enable  a  party  to 
inspect  books,  etc.,  to  prepare  for  trial  where 
the  parties  were  not  before  the  court,  so  that 
notice  would  be  necessary,  and,  as  the  only 
ground  for  the  continuance  of  tbe  hearing  of  the 
receivership  motion  was  to  permit  an  inspection, 
the  court  necessarily  determined  the  right  of 
inspection  before  granting  the  continuance,  and, 
under  its  legal  and  equitable  powers,  could,  in- 
dependent of  section  477,  allow  an  Inspection 
without  formal  notice  and  application. 

[Ed.   Note.— For   other  cases,   see   Discovery, 
Cent  Dig.  U  122,  124-131 ;   Dec.  Dig.  {  97.»] 

3.  DISCOVEBT  (J  88*)- BooKB— Wbiting. 

In  an  action  for  a  receiver  of  a  corporation, 
plaintiff  alleged  that  she  was  the  equitable  own- 
er of  about  one-third  of  the  preferred  stock  of 
defendant  corporation,  which  stock  was  in  the 
possession  of  another,  who  refused  to  take  steps 
to  protect  plaintUTs  rights,  and  that  defendant 
directors  had  perpetuated  themselves  in  office, 
increased  their  salaries,  wasted  the  assets,  ren- 
dered the  corporation  insolvent,  and  had  refused 


casM  (••  tarn*  topic  aad  ■•ctioa  NUMBER  la  Dec.  &  Am.  DlgB.  1907  to  data,  ft  Reporter  Indezei 


Digitized  by  VjOOQ  l€ 


co« 


122  NORTHWESTERN  REPORTER. 


(S.I>. 


to  permit  plaintiff  to  ezamine  the  corporate 
books.  Held,  that  plaintiff  was  entitled  to  in- 
spect the  corporate  Ixioks  in  order  to  enable 
ber  to  prepare  for  trial. 

[Ed.  Note.— For  other  cases,  see  Discovery, 
Cent.  Dig.  §!  113,  114;   Dec  Dig.  i  88.*] 

Appeal  from  Circuit  Ckturt,  Hughes  Coun- 
ty. 

Suit  by  Asnle  M.  McGeary  against  Ella  M. 
Brown  and  others.  From  an  order  permit- 
ting plaintiff  to  examine  the  books  of  defend- 
ant corporation,  and.  from  an  order  contin- 
uing the  order  for  examination,  defendants 
appeal.      AfiSrmed. 

Sutherland  &  Payne,  for  appellants.  Gaf- 
fy  &  Stephens,  for  respondent 

WHITING,  J.  Respondent,  plaintiff  In  the 
lower  court,  brought  this  action  and  applied 
for  the  appointment  of  a  receiver  pending  the 
suit ;  and  motion  for  the  receiver  being  based 
upon  the  summons  and  complaint  and  upon 
afiSdavlt  executed  upon  behalf  of  the  plain- 
tiff. The  complaint  does  not  appear  in  the 
record  on  appeal,  but  from  said  affidavit  It 
would  appear  that  the  plaintiff  was  the  niece 
of  the  defendant  Ella  M.  Brown;  that  she 
was  the  niece  of  Joseph  O.  Brown ;  that  Jo- 
seph O.  Brown  had  died  some  four  years 
prior  to  the  commencement  of  this  action;  that 
while  living  he  was  the  owner  of  150  shares 
of  the  preferred  capital  stock  of  the  defendant 
Pierre  Ranch  Cattle  Company,  such  stock  be- 
ing of  the  par  value  of  $100  per  share ;  that 
during  the  four  years  prior  to  the  commence- 
ment of  this  action  the  defendants  Geo.  W. 
Lumley,  Sr.,  Harry  Lumley,  and  Robert  W. 
Lumley  had  been,  atad  at  the  time  of  said  ac- 
tion were,  the  directors  of  said  cattle  com- 
pany, and  Geo.  W.  Lumley  its  president,  and 
Harry  C.  Lumley  its  secretary;  that  said  Jo- 
seph O.  Brown  left  a  last  will  and  testament, 
which  bad  been  dul.v  approved,  in  which  will 
the  defendant  Ella  M.  Brown  was  named  as 
executrix,  and  by  which  will  there  was  left  in 
trust  for  plaintiff  the  said  150  shares  of  stock 
for  her  use  and  benefit  during  life,  and  at  her 
death  to  revert  to  defendant  Ella  M.  Brown ; 
that  no  trustee  was  appointed,  and  that  none 
has  been  appointed,  but  that  Ella  M.  Brown 
had  acted  as  trustee  against  plaintiff's  will 
and  without  her  consent;  that  said  Ella  M. 
Brown  had  refused  to  advise  plaintiff  wheth- 
er the  stock  willed  plaintiff  was  in  her  pos- 
session, and  had  also  refused  to  take  any 
steps  to  determine  the  rights  of  the  plalntlfl 
to  the  use  and  benefits  of  said  stock  and  the 
proceeds  thereof,  and  had  refused  to  Join 
plaintiff  in  proceedings  for  said  purpose,  all 
for  the  reasons  that  said  Ella  M.  Brown  held 
the  reversionary  interest  In  said  stock,  and 
Is  inimical  to  plaintiff's  Interest,  and  opposed 
to  the  declaration  of  any  dividends  or  the 
division  of  any  profits.  The  affidavit  then 
sets  forth  that  such  preferred  stock  was  en- 
titled to  draw  6  per  cent  yearly  dividends, 


to  be  paid  in  preference  of  any  other  divi- 
dends, and  that,  in  case  of  division  of  prof- 
its, the  holders  of  said  stock  were  to  be  paid 
In  full  both  ptist  and  present  interest  divi- 
dends before  any  payments  to  the  holders 
of  common  stock.  Hie  affidavit  set  forth 
that  the  corporation  had  been  the  owner, 
some  four  years  prior  to  commencement  of 
the  action,  of  property  to  the  amount  of  not 
less  than  $125,000;  that  its  capital  stock 
amounted  to  $150,000;  that  the  three  Lum- 
leys,  as  directors,  had  elected  themselves 
managers  of  the  corporation  and  voted  them- 
selves large  salaries,  which  said  salaries  had 
by  them  been  raised;  that  no  dividends  had 
been  paid ;  that  through  mismanagement  of 
the  business  the  assets  of  the  corxmratlon 
had  been  wasted ;  that  the  business  had  been 
and  was  being  carried  on  at  a  loss ;  that  the 
corporation  was  at  that  time  heavily  Indebt- 
ed; that  its  assets  did  not  exceed  $10,000, 
and  its  indebtedness  was  $40,000 ;  that  It  had 
no  means  of  meeting  this  indebtedness  and 
was  wholly  Insolvent;  that  the  corporation 
had  failed  to  pay  its  other  employes  other 
than  said  managers;  that  they  had  caused 
the  corporation  several  great  financial  losses 
In  surrendering  the  rights  which  it  had  under 
an  option  contract  to  lands  of  great  value, 
and  which  lands  had  been  used  by  such  cor- 
poration ;  that  the  president  of  such  corpora- 
tion had  been  paid  a  commission  upon  the 
sale  of  these  lands  to  third  parties,  which 
commission  he  had  retained.  Said  affidavit 
alleged  many  other  matters  and  things 
wherein  the  said  Lumleys  had  failed  in  their 
trust  duties  as  officers  of  said  corporation, 
and  alleged  that  said  Lumleys  had  refused 
to  allow  plaintiff  or  her  agent  to  examine  the 
books  of  said  corporation,  although  said 
books  were  in  the  possession  of  said  Lum- 
leys. At  the  time  of  the  hearing  of  this  mo- 
tion and  the  making  of  the  orders  herein  re- 
ferred to,  the  defendant  Ella  M.  Brown  had 
not  been  served  with  the  papers  herein,  and 
had  not  in  any  manner  appeared. 

Upon  the  hearing  of  said  motion  the  Lum- 
leys submitted  affidavit  of  said  Geo.  W.  Lum- 
ley, which  said  affidavit  directly  denied  some 
of  the  allegations  of  the  affidavit  submitted 
on  behalf  of  plaintiff.  There  is  nothing  to 
show  that  said  answering  affidavit  was  ever 
served  upon  plaintiff  prior  to  the  hearing  of 
said  motion,  and  it  is  reasonable  to  presume 
that,  in  accordance  with  the  usual  custom, 
said  affidavit  did  not  come  to  the  attention 
of  plaintiff  or  her  counsel  until  the  hearing 
upon  said  motion.  Attached  to  the  affidavit 
of  Lumley  was  a  copy  of  the  will  of  said 
Joseph  O.  Brown,  which  showed,  as  claimed 
by  plaintiff,  that  150  shares  of  preferred 
stock  of  said  corporation  was  left  in  trust 
for  plaintiff,  and  this  is  in  no  manner  contro- 
verted by  the  defendants.  Upon  the  hearing, 
after  the  introduction  of  the  affidavit  hereiu- 


*For  other  cum  gee  tame  topic  and  Mction  NUMBER  In  Dec.  ft  Am.  Diss.  1907  to  date,  A  Reporter  ladczee 


Digitized  by  VjOOQ  l€ 


S.  DJ 


UOOEARY  V.  BROWN. 


607 


before  moitloned,  witnesses  were  examined 
on  behalf  of  the  plaintiff.  The  articles  of  the 
Incorporation  of  defendant  corporation  were 
Introduced  in  evidence  showing  capital  stock 
to  the  amount  of  $150,000,  of  which  one-third 
or  500  shares  at  $100  each  was  preferred 
stock — showing,  farther,  that  such  preferred 
stock  was  entitled  to  dividends  at  6  per  cent 
In  preference  to  any  dividend  upon  common 
stock,  and  showing  that,  if  in  any  year  the 
profits  did  not  authorize  the  payment  of  6 
per  cent,  dividend  on  preferred  stock,  that 
the  holders  of  such  stock  would  have  the 
right  to  receive  such  back  dividends  out  of 
profits  In  the  succeeding  years  in  preference 
to  the  common  stock,  and  also  showed  that, 
in  case  of  dissolution  or  liquidation,  the  pre- 
ferred stock,  together  with  any  unpaid  divi- 
dends, should  be  paid  in  full  In  preference  to 
common  stock.  Defense  then  submitted  an- 
other affidavit  by  said  Geo.  W.  Lnmley  to  the 
effect  that  the  plaintiff  was  in  no  manner 
registered  as  a  shareholder  on  the  books  ot 
said  corporation,  and  that  she  was  a  stranger 
to  said  books.  At  this  stage  in  the  proceed- 
ings counsel  for  plaintiff  requested  to  be  al- 
lowed to  examine  the  books  of  the  corpora- 
tion for  the  purpose  of  preparation  for  the 
trial  of  the  issues  of  said  case,  and  asked 
that  the  hearing  on  motion  for  receiver  be 
continued  to  a  later  date.  The  defendants 
objected  to  this  request  on  the  grounds  of 
surprise,  that  no,  foundation  had  been  laid 
for  the  request,  and  that  it  was  improper  at 
that  time  and  under  the  present  procedure. 
The  court  stated  that  It  should  grant  the 
request,  and  upon  the  next  day  a  formal  or- 
der was  signed  by  the  judge  of  said  court, 
continuing  the  hearing  of  the  motion  for  re- 
ceiver, giving  to  plaintiff's  attorney  the  right 
to  inspect  and  copy  the  books,  papers,  and 
documents  of  the  defendant  company,  and 
fixing  time,  place,  and  conditions  under 
which  said  examination  should  be  made. 
Defendant,  treating  this  order  as  the  order 
of  the  Judge  and  not  that  of  the  court,  pro- 
cared  an  order  to  show  cause  why  such  order 
should  not  be  vacated,  and,  upon  return  of 
such  order  to  show  cause,  an  order  was  Is- 
sued by  the  court  directing  that  the  previ- 
ous order  remain  in  full  force  and  effect  It 
is  from  the  order  of  the  Judge  granting  the 
right  to  examine  the  books  and  the  order  of 
the  court  continuing  in  effect  said  order  of 
the  Judge  that  the  appeal  herein  is  taken. 

Several  assignments  of  error  are  set  forth 
in  the  record  herein,  all  directed  to  the  one 
question  of  whether  or  not  the  court  had 
Jurisdiction  to,  and  was  Justified  in,  granting 
the  order  appealed  from.  Appellants  strenu- 
ously contend  that  It  Is  an  Infringement  of 
the  constitutional  right  of  the  defendant 
guaranteed  by  the  United  States  and  this  state 
guaranteeing  persons  to  be  secure  in  their 
persons,  houses,  papers,  and  effects  against 
unreasonable  searches.  There  Is  nothing  in 
this  contention  of  defendants,  Inasmuch  as 


it  appears  without  dispute  that,  even  If 
plaintiff  does  not  appear  on  the  books  of 
the  corporation  as  a  stockholder,  yet  in 
truth  and  fact  she  Is  a  holder  of  the  equi- 
table Interest  In  nearly  one-third  of  the  pre- 
ferred stock  of  this  corporation,  and  the 
books  of  the  corporation  are  as  much  hers 
as  they  are  the  property  of  "any  stockholder, 
and  she  has  an  equitable  right  to  the  exam- 
ination of  the  same  to  determine  her  inter- 
ests in  said  corporation,  and  it  can  be  no  in- 
fringement of  the  Constitution  for  her  to 
examine  the  books  of  this  corporation.  It 
is  the  claim  of  the  respondent  that  she  bas 
a  right  under  section  477  of  our  Code  of 
Civil  Procedure  to  make  the  examination 
asked  for.  This  section  In  substance  is 
found  In  the  statutes  of  nearly  all  the 
states,  and  Intended  to  take  the  place  of  the 
equitable  action  for  discovery  formerly  re- 
sorted to  to  discover  the  contents  of  books 
and  other  papers  In  the  hands  of  adverse 
parties,  our  statute  being  in  words  as  fol- 
lows: "The  court  before  which  an  action  is 
pending,  or  a  Judge  thereof,  may,  in  its  or 
his  discretion,  and  upon  due  notice,  order 
either  party  to  give  to  the  other,  within  a 
specified  time,  an  Inspection  and  copy,  or 
permission  to  take  a  copy  of  any  t>ook3, 
papers  and  documents,  In  his  possession  or 
under  his  control,  containing  evidence  relat- 
ing to  the  merits  of  the  action  or  the  de- 
fense therein.  If  compliance  with  the  order 
be  refused,  the  court  may,  on  motion,  ex- 
clude the  paper  from  being  given  In  evidence 
or  punish  the  party  refusing,  or  both."  Ap- 
pellants, however,  contend  that  under  this 
section  they  are  entitled  to  notice  before 
order,  and  that  there  must  be  a  showing 
to  the  court  of  the  right  or  necessity  for  tbe 
order.  The  statutes  of  most  states  specifical- 
ly require  an  application  or  petition  In  writ- 
ing. Under  the  view  which  we  take  of  this 
matter,  we  do  not  deem  it  necessary  to  pass 
upon  the  question  of  whether  a  formal  peti- 
tion is  In  all  cases  necessary,  nor  as  to  what 
notice  must  be  given.  We  think  it  will  be 
conceded  by  every  one  that  this  statute  was 
passed  aiming  to  cover  cases  where  a  party, 
anticipating  tbe  preparation  of  a  pleading 
or  preparation  for  a  trial,  desires  to  take 
steps  to  procure  an  examination  of  books 
and  papers  In  the  hands  of  an  adverse  party, 
and  certainly  In  such  the  adverse  party 
would  be  entitled  to  his  day  In  court  to  be 
heard  on  tbe  application  for  an  order  un- 
der such  statute,  and  in  order  to  give  the 
defendant  such  day  In  the  court  notice 
would  be  necessary,  if  the  parties  were  not 
in  court  at  time  of  application.  But  the 
question  before  us  is  not  what  would  hare 
been  necessary  If  prior  to  the  date  of  the 
hearing  of  motion  for  receiver  plaintiff  had 
determined  that  be  wished  to  examine  the 
books  in  order  to  prepare  for  such  hearing, 
but  rather  what  is  necessary  to  be  done 
when,  upon  a  hearing  of  a  motion,  as  an  or- 
der to  show  cause,  or  the  taking  of  evidence 


Digitized  by 


L-oogle 


€08 


122  NOBTHWESTERN  REPORTER. 


(S.IX 


upon  any  Issue,  It  should  develop  that  cer- 
tain books  and  papers  are  In  the  control  of 
the  adverse  party  undoubtedly  containing  ev- 
idence material  to  the  Issue,  In  order  to  ob- 
tain an  Inspection  of  such  books  and  papers. 
Under  such  circumstances,  is  It  necessary  for 
the  party  desiring  to  examine  such  books  to 
have  Issued  a '  subpcena  duces  tecum  and 
bring  the  records  Into  court,  or  give  notice  to 
the  defendant  to  produce  the  books,  or  has 
the  court  the  right  when  requested  and  with- 
out any  formal  notice,  when  the  record  then 
before  the  court  Is  sufficient  to  show  the 
necessity  for  such  examination,  to  issue  Its 
order,  and.  If  necessary,  adjourn  the  hear- 
ing to  give  opportunity  for  such  examina- 
tion? 

It  will  readily  be  seen  that  notice  to  pro- 
duce the  books  is  not  an  ample  remedy,  be- 
cause under  the  law,  In  the  case  of  nonpro- 
ductlon,  It  would  simply  give  to  the  party 
the  right  to  offer  secondary  evidence  of  the 
contents  of  such  books,  and  frequently,  as  In 
the  case  at  bar,  the  applicant  would  have  no 
means  whatever  of  proving  such  contents. 
Nor  would  a  subpoena  duces  tecum  be  ample, 
for  the  reason  that  there  might  often  be  no 
person  within  the  Jurlsdlctlou  upon  whom 
the  same  could  be  served,  and,  moreover,  it 
would  not  give  the  applicant  an  opportunity 
for  the  examination  and  preparation  before 
the  hearing  of  the  issue.  It  must  be  conced- 
ed that  if  there  had  been  a  formal  appli- 
cation, supported  by  an  affidavit  setting  forth 
the  facts  as  set  forth  in  plaintiff's  affidavits 
herein,  and  notice  of  the  application  had  been 
given  the  defendant,  then  It  would  have 
been  the  duty  of  the  court,  under  section  477, 
to  have  made  the  order  which  was  Issued 
herein ;  but  we  do  not  think  that  in  the  case 
at  bar  it  was  Incumbent  upon  the  plaintiff 
to  secure  a  continuance  of  the  hearing  on 
motion  for  the  appointment  of  the  receiver, 
and  then  afterwards  take  formal  steps  by 
petition  and  notice  under  section  477  to  pro- 
cure inspection  of  books.  There  does  not 
appear  to  have  been  any  grounds  for  contin- 
uance except  to  give  time  to  inspect  the 
books,  and  the  court  was  called  upon  to  de- 
termine the  right  to  Inspection  before  grant- 
ing continuance.  Plaintiff  was  excusable  In 
not  having  made  previous  application  for 
the  Inspection  of  the  books,  for  the  reason 
that  no  issue  of  fact  was  Joined  until  that 
date.  If  defendants  needed  any  time  to 
meet  the  motion  for  Inspection,  they  should 
have  asked  for  same. 

If  there  is  no  Inherent  power  In  the  court 
to  make  such  order,  and  such  power  Is  to 
be  found  in  section  477,  supra,  only,  and 
under  said  section  only  after  application  and 
notice,  then  whenever  upon  the  trial  of  an 
issue  of  fact  it  should  appear  that  one  party 
bad  possession  of  books  and  records  proba- 
bly containing  matter  material  to  such  is- 


sue, which  bool»  and  records  the  other  party 
should  have  a  right  to  examine  before  go- 
ing on  with  trial  of  the  Issue,  the  party 
desiring  inspection  would  have  to  ask  the 
court  to  continue  the  cause,  stating  as  a 
reason  that  he  desired  to  make  a  formal 
application  on  notice  for  right  to  examine 
such  books  and  records,  and  the  court  would 
be  called  on  to  virtually  pass  on  such  right 
of  inspection  in  order  to  determine  wheth- 
er continuance  should  be  granted,  and  then 
afterwards  again  pass  on  right  of  Inspection 
when  formal  application  for  same  was 
brought  on  for  hearing.  This  certainly  would 
be  a  foolish  and  needless  procedure,  and  the 
court  should  and  does  have  the  right,  when 
the  parties  are  before  it,  whenever  it  satis- 
factorily appears  that  one  party  has  books 
and  records  which  the  other  party  is  entitled 
to  examine  in  order  to  prepare  to  meet  is- 
sues raised,  to  make  an  order,  upon  motion, 
requiring  the  allowing  of  such  inspection. 
Any  court  having  both  law  and  equity  pow- 
ers surely  has  the  power  above  stated,  leav- 
ing section  477,  supra,  to  be  resorted  to  In 
that  class  of  cases  for  which  it  was  apparent- 
ly intended,  namely,  where  the  parties  are 
not  before  the  court  or  Judge  and  one  de- 
sires to  take  steps  to  procure  an  inspection 
of  books  or  records  in  order  to  prepare  plead- 
ings or  prepare  for  trial  of  issues  of  fact. 
That  the  facts  shown  herein  entitled  plain- 
tiff to  a  right  to  inspect  such  books  is  fully 
sustained  by  Phelps  v.  Telegraph  Co.,  46 
Wis.  266,  50  N.  W.  288;  Matter  of  Martin, 
62  Hun,  557,  17  N.  Y.  Supp.  133;  Klrk- 
patrlck  V.  Pope  Manufacturing  Co.  (0.  C.) 
61  Fed.  46;  Bart  v.  Ogdensberg,  etc.,  6d  Hun, 
497,  23  N.  T.  Supp.  713;  Rutter  et  al.  v. 
Germicide  Co.,  70  Hun,  403,  24  N.  T.  Supp. 
215. 
The  order  appealed  from  is  affirmed. 

HANEY,  P.  J.,  taking  no  part  in  the  deci- 
sion. 


WORK  et  al.  v.  BRAUN  et  al. 

(Supreme  Court  of  South  Dakota.     Sept.  4, 
1909.) 

On  reargument  Former  opinion  adher- 
ed to. 

For  former  opinion,  see  19  S.  D.  437, 103  N. 
W.  764. 

HANEY,  P.  J.  The  issues  involved  in  this 
action  are  fully  stated  in  the  former  decision 
of  this  court  Work  v.  Braun,  19  S.  D.  437, 
103  N.  W.  764.  After  reargument,  and  fur- 
ther consideration,  the  views  therein  ex- 
pressed are  adhered  to,  and  the  judgment 
of  the  circuit  court  affirmed. 

McCOY,  J^  taking  no  part  in  the  decision. 


Digitized  by 


Google 


lowaj! 


SXSWABT  T.  HALL. 


609 


STBWART  ▼.  HALL  et  al. 
(Snpieme  Court  of  Iowa.    Oct.  2,  1909.) 

1.  FABTIEB  (S  6*)— NB0E88ABT  PABTIXS  PLAIH- 

TiFP— Reai,  Partt  in  Intkbest. 

Where  a  person  had  been  defrauded  by  de- 
fendants into  exchanging  money  and  property 
-for  land,  the  property  embracing  the  asaeta  of 
a  corporation  which  were  the  property  of  the 
corporation,  and  which  it  transferred  to  one  of 
the  defendants  by  bill  of  sale,  the  corporation 
was  a  necessary  party  to  an  action  to  cancel 
the  conveyances,  ander  Code  1897,  {  &459,  re- 
qniring  an  action  to  be  prosecuted  in  the  name 
of  the  real  party  in  interest. 

[Ed.  Note.— For  other  cases,  see  Parties,  Cent 
Dig.  H  6-S;   Dec.  Dig.  i  e.»l 

2.  Appeal  akd  Ebbob  .(|  1178*)— Rbvibsal— 

DUXCTB. 

In  a  suit  for  relief  against  conveyances  of 
property  obtained  by  fraud,  where  the  objection 
that  a  necessary  party  was  not  named  as  plain- 
tiff was  not  alleged  until  the  hearing  was  near- 
ly condnded,  the  better  practice  is  for  the  Su- 
preme Court  not  to  dismiss  the  case,  but  to 
remand  it,  with  leave  to  plaintiff  to  bring  in 
the  necessary  party. 

[Ed.  Note.— For  other  cases,  se«  Appeal  and 
Error,  Cent.  Dig.  H  460^-4620;  Dec  Dig.  { 
117&»] 

Appeal  from  District  Court,  Folk  County; 
James  A.  Howe,  Judge. 

The  opinion  states  the  facts.  The  defend- 
ants, Hanson  and  Fike  only,  appeal.  Re- 
versed and  remanded. 

L.  I.  Abbott  and  Henry  &  Henry,  for  ap- 
pellants.   Hume  ft  Hamilton,  for  appellee. 

LADD,  J.  Three  of  the  defendants  con- 
spired to  defraud  plaintiff  of  his  property. 
One  of  them,  L.  W.  Aikln,  arranged  for  the 
purchase  of  2880  acres  of  land  In  Ransom 
county,  N.  D.,  of  the  D.  S.  B.  Johnston  Land 
Company,  at  $8  per  acre,  and  that  the  con- 
tracts of  sale  be  forwarded  to  a  bank  In 
Des  Moines,  to  be  signed  and  delivered  on 
the  payment  of  $1,779.68,  with  deferred  pay- 
ments of  $19,200,  upon  being  advised  of  the 
purchaser's  name.  Another,  R.  C.  Hall,  pre- 
tended to  have  purchased  this  land  on  con- 
tract, and  to  be  entitled  to  a  conveyance  upon 
the  making  of  deferred  payments.  The  part 
of  the  third  member  of  the  combination,  M. 
J.  Shemerhom,  was  to  engage  as  agent  of 
p!ii!ntlff  in  finding  a  deal  by  which  he  might 
exchange  his  property  for  land.  Each  did 
his  part  Shemerhom  Introduced  plaintiff  to 
Hall,  accompanied  the  representative  of 
plaintiff  to  examine  the  land,  and  participat- 
ed generally  in  the  perpetration  of  the  fraud 
by  means  of  which  the  deal  was  consum- 
mated. He  had  agreed  to  "pool  commis- 
sions" (the  plunder)  with  Hall  and  Aikln, 
and  sntmequently  received  from,  them  In  set- 
tlement for  his  services  a  quarter  section  of 
land  In  Minnesota  and  three  quarters  In 
Nebraska  subject  to  $3,000  Incumbrance. 
The  plaintiff  paid  him  $.'500,  and  promised 
$200  more,  In  the  supposition  that  he  was 
acting  for  him.    Claiming  to  own  the  land, 


Hall,  by  misrepresenting  its  quality  and  val- 
ue, induced  the  plaintiff  to  enter  Into  a  con- 
tract by  the  terms  of  which  he  was  to  pay 
therefor  $23  per  acre  In  property,  being 
the  assets  of  the  Interior  Wood  Fitting  Man- 
ufacturing Company  at  $30,000,  12  lots  sub- 
ject to  an  Incumbrance  of  $1,700  at  $12,010, 
and  $4,130  In  money;  the  deferred  payments 
on  the  land  being  $19,200.  The  agreement 
was  subject  to  Inspection  of  plaintiff,  and  he 
sent  his  uncle,  Chas.  F.  Leonard,  with  full 
written  Instructions  to  examine  the  land. 
Shemerhom  accompanied  him,  and  Alkln 
Joined  them  at  Fargo,  N.  D.  From  Sheldon 
In  that  state  they  drove  to  what  Alkln  rep- 
resented to  be  the  land  described  In  the  con- 
tract, and,  after  Inspecting  it,  Shemerhom 
dictated  a  report.  In  which  Leonard  Joined, 
In  which  the  several  tracts  were  said  to  be 
level,  without  gullies,  creeks,  considerable 
depressions,  or  elevations,  the  soil  a  deep 
sandy  loam,  covered  by  a  good  growth  of 
grass,  without  rock,  sand,  gravel,  or  gumbo, 
nearly  all  tillable,  and  that  loans  of  $10 
or  $12  per  acre,  or  of  25  to  40  per  centum 
of  'value,  could  be  procured.  Basing  his 
action  on  this  report,  plaintiff  confirmed  the 
agreement,  and  a  binding  contract  was  en- 
tered into,  and  the  papers  appropriate  for  the 
transfer  of  the  property  to  Hall  executed. 
The  plaintiff  paid  the  $4,130  Into  the  bank, 
and,  upon  signing  the  contracts,  received  a 
duplicate  from  the  Johnston  Land  Company, 
Stipulating  for  the  conveyance  of  the  land 
to  him  when  the  remaining  $19,200,  with  In- 
terest, should  be  paid.  So  that  these  de- 
fendants had  succeeded  In  obtaining  the 
property,  and  in  addition  thereto  $2,350.32 
for  their  trouble  in  so  doing.  Hall  and  Aikln 
immediately  proceeded  to  dispose  of  what 
they  bad  received,  and  made  such  progress 
as  to  excite  the  fears  of  Shemerhom  lest 
he  lose  the  promised  third  of  the  plunder, 
and  he  caused  suit  therefor  to  be  Instituted, 
which  resulted  In  a  settlement  as  indicated. 
The  suspicions  of  plaintiff  finally  were  arous- 
ed, and  he  departed  on  April  21st  to  examine 
the  land,  and  found  all  of  It  to  be  sandy, 
sparsely  covered  with  grass,  of  uneven  sur- 
face, with  many  sloughs,  water  holes,  and 
ponds,  and  sand  dunes  ranging  In  height 
from  10  to  20  feet.  The  soil  was  not  a 
"sandy  loam,"  and  little  of  it  was  tillable. 
His  testimony  to  this  efl'ect  Is  corroborated, 
and  the  record  fully  sustains  the  conclusion 
that  Alkln,  in  pursuance  of  the  scheme,  pur- 
posely pointed  out  to  Leonard  and  Shemer- 
hom land  other  than  that  described  In  the 
contract,  and  by  this  means  procured  the 
false  report  as  to  its  character  upon  which 
plaintiff  In  executing  the  contract  and  In 
procuring  the  conveyance  of  property  acted. 
No  purpose  will  be  served  by  reviewing  the 
evidence  by  which  the  foregoing  facts  are 
found  to  be  established.  It  Is  enough  to  say 
that  a  perusal  of  the  record  leaves  none  of 


•For  other  eases  see  same  topic  and  aection  NUMBER  In  Dee.  A  Am.  Digs.  1907  to  data,  A  Reportar  ladaxas 
122  N.W.-39 


Digitized  by  VjOOQ  l€ 


610 


122  NOHTHWESTKBN  REPORTER. 


(Iowa 


them  In  doubt.  Upon  bis  return  plaintiff 
Immediately  Instituted  this  action,  wblch  re- 
sulted In  the  canceling  of  all  conveyances 
to  Hall  and  to  bis  grantees  and  tbe  rendi- 
tion of  judgment  against  Hall,  Aikin,  and 
Shemerhom  for  tbe  amount  of  tbe  casb  pay- 
ment None  of  tbe  last-named  parties  have 
appealed;  but  L.  B.  Hanson,  to  wbom  a  bill 
of  sale  of  tbe  assets  of  tbe  manufacturing 
company  was  executed,  and  James  A.  Fike, 
wbo  acquired  the  legal  title  to  tbe  lots,  have 
appealed  to  this  court.  Each  claims  to  bare 
been  an  innocent  purchaser,  and  both  that 
plaintiff  is  not  the  real  party  in  interest,  and 
therefore  ought  not  to  be  permitted  to  pros- 
ecute the  action. 

As  appears,  tbe  suit  is  prosecuted  in  tbe 
name  of  Cecil  AL  Stewart  individually,  and 
undoubtedly  the  negotiations  with  Hall  were 
conducted  in  bis  individual  •  capacity.  But 
the  bill  of  sale  of  the  assets  of  tbe  Interior 
Wood  Fittings  Manufacturing  Company  to 
Hail  was  executed  by  that  company,  which 
was  incorporated  and  owned  the  property. 
Hall  transferred  these  to  Eller,  who  bad  no 
Interest  in  them,  and  he,  at  Hall's  instance, 
to  Hanson.  If  Stewart  was  president  of, 
or  even  a  stockholder  in,  the  company,  this 
did  not  create  such  an  Interest  in  the  prop- 
erty as  to  authorize  him  to  maintain  tbe 
action.  But  be  did  not  testify  that  he  was 
even  a  stockholder.  The  corporation  was 
the  owner.  Tbe  statute  (section  3459,  Code) 
requires  an  action  to  be  prosecuted  in  the 
name  of  the  real  party  in  interest  The 
record  indicates  that  the  corporation,  and 
not  Stewart  owned  the  property;  and!,  this 
being  80,  the  Interior  Wood  Fittings  Manu- 
facturing Company  was  a  necessary  party  to 
the  action.  But  it  is  said  this  Is  not  im- 
portant, for  that  tbe  company  allowed  Stew- 
art to  take  what  was  received  for  tbe  bill 
of  sale.  How  this  would  affect  the  owner- 
ship of  the  property  exchanged,  or  the  com- 
pany's right  to  recover  damages  flowing  from 
the  fraud  practiced  in  divesting  it  thereof, 
is  not  perceived.  Even  though  It  might 
choose  to  give  away  what  it  received,  it  was 
not  thereby  precluded  from  challenging  the 
integrity  of  the  methods  resorted  to  in  order 
to  induce  it  to  part  with  property  transferred 
to  Hall.  Nor  was  there  any  evidence  before 
the  court  that  plaintiff  was  tbe  owner  of  tbe 
lots  In  controversy.  These  were  conveyed  to 
Ilnll  by  plaintiff  and  his  mother,  Dora  M. 
Stewart,  as  trustees  of  the  Joseph  B.  Stew- 
art estate.  Subsequent  to  the  beginning  of 
this  suit,  and  long  before  submission,  they 
resigned,  and  B.  S.  Walker  and  Mary  Stew- 
art were  appointed  in  their  stead. 

Plaintiff  testified  that  there  are  five  bene- 
ficiaries under  the  will  of  Joseph  B.  Stew- 
art deceased,  but  aside  from  this  there  is 
_  no  proof  that  he  had  any  Interest  in  the 
'  realty.    But,  according  to  section  8459  of  the 
Code:    "Every  action  must  be  prosecuted  in 


the  name  of  the  real  party  in  interest;  but 
an  executor  or  administrator,  a  guardian,  a 
trustee  of  an  express  trust,  a  party  with 
whom  or  in  whose  name  a  contract  is  made 
for  the  benefit  of  another,  or  party  expressly 
authorized  by  contract  may  sue  in  his  own 
name,  without  Joining  with  him  the  jmrty 
for  whose  benefit  tbe  action  is  prosecuted." 
Now  the  evidence  fails  to  show  that  plaintiff 
was  owner  of  the  personal  or  real  property, 
80  he  was  not  the  real  party  in  interest 
Even  if  he  might  have  prosecuted  tbe  suit 
as  trustee  of  the  estate  of  Joseph  B.  Stewart, 
without  making  the  otber  trustee  a  party, 
he  has  not  undertaken  to  do  so.  Tbe  stat- 
ute permitted  him  to  sue  in  his  own  name 
as  trustee,  without  joining  the  beneficiaries, 
but  did  not  relieve  bim  from .  indicating  In 
what  capacity  be  claimed  relief.  Undoubt- 
edly be  was  a  proper  party,  as  he  was  en- 
titled to  recover  the  money  paid  to  Hall;  but, 
as  he  was  not  shown  to  have  an  interest  in 
the  other  personalty  or  tbe  realty  save  in  a 
capacity  otber  than  alleged,  the  district 
court  erred  in  awarding  rdief.  It.  is  no 
answer  to  say  that  the  decree  was  not  prej- 
udicial in  declaring  his  equity  superior  to 
tbe  equities  of  Hanson  and  Fike,  for  this 
does  not  appear.  Moreover,  there  are  enough 
real  controversies  for  the  courts  to  decide 
without  speculating  on  the  probable  result 
where  no  interest  has  been  proven.  As  sus- 
taining these  views,  see  Tod  v.  Crisman,  123 
Iowa,  693,  99  N.  W.  686;  Postlewait  v. 
Howes,  3  Iowa,  365.  As  said  in  the  last 
case:  "Courts  of  equity  aim  to  do  complete 
Justice,  and  not  to  do  it  by  halves.  To  ac- 
complish this  it  is  eminently  necessary  that 
the  bill  should  bring  before  the  court  all 
necessary  and  proper  parties."  Had  the 
right  of  plaintiff  to  prosecute  the  action  been 
raised  prior  to  the  hearing,  we  should  have 
been  inclined  to  dismiss  the  cause  as  to  Han- 
son and  Fike;  but  defect  of  the  parties  was 
not  alleged  until  tbe  hearing  was  nearly 
concluded,  and  for  this  reason  the  practice 
said  to  be  the  better  In  Postlewait  v.  Howes, 
supra,  will  be  followed,  and  tbe  cause  re- 
manded, with  leave  to  plaintiff  to  bring  In 
the  necessary  parties.  We  are  the  more  in- 
clined to  pursue  this  cause  because  of  the 
voluminous  record  and  the  possibility  of 
making  use  of  the  evidence  on  another  trial. 
Reversed  and  remanded. 


MONAGHAN  et  al.  v.  VANATTA  et  al. 

(Supreme  Court  of  Iowa.     Oct.  2,   1909.) 

1.  Drains  (|  49*)— Cowstbuctiow— LiAniuxr 
FOB  Work. 

That  more  earth  is  removed  In  excavating 
a  ditch  than  was  estimated  by  the  preliminary 
report  in  which  the  connty  board  acted  in  ordei^ 
iag  the  improvement  is  no  reason  why  the  drain- 
af;e  district  should  not  pay  for  the  work,  the 
ditch  being  const  racted  in  substantial  conform- 
ity with  the  specifications,  and,  in  measuring  th* 


•For  otliar  caMi  sm  Hun*  topic  and  McUon  NUMBBR  la  Dw.  *  Am.  Dlfi.  1907  ts  data.  *  Raportw  tedcna 


Digitized  by  VjOOQ  l€ 


Iowa) 


HONAGHAN  t.  VANATTA. 


611 


amoant  of  excaTStioB  to  be  paid  for,  nothing 
below  the  grade  line  established  in  the  prelim- 
inarr  report  aa  the  bottom  of  the  ^itch,  and 
nothing  outside  the  width  there  established,  be- 
ing included, 

[EA.  Note.— For  other  cases,  see  Drains,  Cent 
Dig.  f  57:   Dec.  Dig.  S  40.*]  " 

2.  rtBAiNB  (I  49*)— Construction— I.IABILITT 

FOB  WOBK. 

Thou^  the  preliminary  report  on  which 
the  construction  of  a  ditch  is  ordered  gives  its 
length  as  "about"  a  certain  number  of  feet,  yet 
this  being' a  mere  estimate,  not  required  to  be 
definite,  and  in  fact  not  so,  and  the  points  t>e- 
tween  which  it  is  to  be  constructed  t>eing  clearly 
shown,  the  drainage  district  is  liable  for  the 
excavation  between  such  points,  though  the 
drain   is  longer  than  estimated. 

[Ed.  Note.— For  other  cases,  see  Drains,  Cent 
Dig.  8  57;  Dec.  Dig.  |  49.*] 

3.  Drains  (§  49*)— Construction— Eniabqe- 
UENT  OF  Dimensions. 

Where  the  dimensions  of  a  ditch,  after  its 
construction  has  been  contracted  for,  are  en- 
larged by  the  engineer  without  his  reporting  the 
fact  of  the  necessity  therefor  to  the  county 
board,  and  proceedings  being  talten  thereon,  as 
provided  by  Code  Supp.  1907,  |  1989a7,  such 
action  is  without  anthority,  as  is  his  reporting 
that  the  contractors  are  entitled  to  the  increas- 
ed corApensation,  and  the  drainage  district  Is 
not  liable  for  the  excess. 

[Ed.  Note.— For  other  cases,  see  Drains,  Dec. 
Dig.  S  49.*] 

4.  Drains  (|  49*)— Construction— Appbovai. 
BT  County  Boabd. 

Under  Code  Supp.  1907,  |  1989a9,  provid- 
ing that  the  engineer  in  charge  of  construction 
of  a  drainage  ditch  shall  furnish  the  contractor 
monthly  estimates  of  the  amount  of  work  done, 
and,  on  filing  it  with  the  auditor,  he  shall  draw 
ft  warrant  in  favor  of  such  contractor  for  80 
per  cent,  of  the  value  of  the  work  done  accord- 
ing to  the  estimate,  and  when  the  work  is  com- 
pleted to  the  satisfaction  of  the  engineer,  and  so 
certified  by  him  to  the  county  board  and  ap- 
proved by  it,  the  auditor  shall  draw  a  warrant 
in  favor  of  the  contractor  for  the  lialance  due, 
the  board  has  no  authority  to  pass  on  the  esti- 
mates prior  to  the  engineei's  final  report:  so 
that  an  approval  indorsed  on  them  by  tne  chair- 
man of  the  board,  describing  himself  as  such, 
is  of  no  significance  on  the  question  of  balance 
doe,  which  can  only  be  determined  by  computa- 
tion of  the  work  done  under  the  contract,  at 
agreed  prices,  on  the  improvement  as  ordered  by 
the  board,  and  then  deducting  the  sums  paid 
under  the  engineer's  estimates. 

[Ed.  Note.— For  other  cases,  see  Drains,  Dec. 
Dig.  I  4&.*] 

5.  Drains    (f    74*)— Constbuction— Amount 
Dub— Estoppel. 

Property  owners  In  a  drainage  district  are 
not  estopped  to  assert  that  the  contractors 
should  not  be  paid  for  that  part  of  the  work  on 
a  drain  which  is  outside  the  improvement  or- 
dered by  the  county  board ;  they  not  being 
shown  to  have  been  aware  that  work  outside 
the  specifications  was  being  done,  and  the  con- 
tractors not  having  been  misled  by  their  con- 
duct or  inaction. 

[BM.  Note.— For  other  cases,  see  Drains,  Cent 
Dig.  f  82;   Dec  Dig.  {  74.*] 

Appeal  from  District  Conrt,  Fremont  Coun- 
ty; N.  W.  Macy,  Judge. 

Action  to  enjoin  the  assessment  and  col- 
lection of  a  part  of  the  alleged  cost  of  ex- 
cavating certain  ditches.  The  contractors 
in  a  cross-petition  prayed  that  their  claim 


for  unpaid  balances  be  established,  that  the 
auditor  Issue  warrants  therefor,  and  the 
board  of  supervisors  be  ordered  to  make  an ' 
additional  assessment  of  lands  included  In 
the  drainage  district,  out  of  the  proceeds 
of  which  to  pay  the  same.  There  was  a 
decree  awarding  the  plaintiffs  the  relief 
prayed  as  to  any  compensation  for  which 
warrants  had  not  been  issued  and  holding 
contractors  entitled  to  payment  of  the  out- 
standing warrants.  From  this  decree  both 
parties  appeal ;  that  of  plaintiffs  being  first 
perfected.    Modified  and  affirmed. 

W.  E.  Mitchell,  for  appellant  T.  S.  Stev- 
ens and  Geo.  E.  Draper,  for  appellees.  Wil- 
liam Eaton  and  W.  H.  Norcutt,  for  county 
officials. 

LADD,  J.  A  bayou  3.8  miles  long  curved 
to  the  southeast,  and  then  back  to  th« 
southwest,  flowing  through  a  narrow  chan- 
nel into  the  Missouri  river.  This  channel 
was  crossed  by  a  wagon  bridge  600  feet 
from  the  river  and  the  bayou  by  the  rail- 
road bridge  about  a  mile  further  north.  In- 
to the  north  end  of  the  bayou  emptied  an 
old  county  ditch,  which  extended  to  the- 
north  7,400  feet,  and  beyond  It  was  "Mule" 
slough.  By  appropriate  proceedings  the  board 
of  supervisors  of  Fremont  county  established 
a  drainage  district  and  ordered  the  coustruc- 
tlon  of  a  bulkhead  across  the  channel,  with 
flood  gates,  to  prevent  the  water  backing  from 
the  river  Into  the  bayou,  the  widening  of  the 
channel  to  the  width  of  18  feet  for  a  dis- 
tance of  about  1,000  feet  from  the  river, 
the  excavation  of  a  ditch  6  feet  wide  and 
2^  feet  deep  for  a  distance  of  about  1,300 
feet  long,  through  a  bench  of  land  north  of 
the  railroad  bridge  and  across  an  arm  of  the 
bayou,  extending  east  and  north,  and  which 
held  the  water  back  when  medium  or  low. 
It  also  directed  that  the  county  ditch  be 
widened  to  20  feet  and  deepened  from  1_  to 
3  feet,  and  that  a  ditch  be  excavated 
through  Mule  slough  varying  in  width  from 
20  to  4  feet  This  order  was  In  pursuance 
of  a  report  of  the  engineer,  appointed  by 
the  board  of  supervisors,  filed  with  the 
county  auditor  and  accompanied  with  plat 
and  profile  of  the  proposed  improvements, 
together  with  estimates  of  their  probable 
cost  There  were  several  laterals  concern- 
ing which  there  Is  no  controversy.  The 
work  was  completed  ,ln  1907,  and  the  dis- 
parity between  the  preliminary  estimates 
of  the  engineer  and  his  final  report  of  the 
actual  cost  was  such  as  to  lead  to  the  In- 
vestigation Involved  In  this  action.  On  the 
part  of  plaintiff  it  Is  contended  that  the 
main  ditch  extending  from  the  north  end 
of  the  bayou  was  excavated  deeper  and 
wider  than  the  specifications  called  for,  ana 
that  no  charge  should  be  made  for  the  ex- 
cess, and  that  much  of  the  work  In  the  bay- 
ou was  not  Included  In  the  contract,  and 


•For  other  easw  lae  lam*  topla  and  ««!tloB  NUMBBR  In  Dw.  *  Am.  Digs.  1M7  to  dat*,  *  Raportar  Indexe* 


Digitized  by  VjOOQ  l€ 


612 


122  NORTHWESTERN  REFORTEB. 


(Iowa 


that,  If  directed  or  approved  by  the  engineer, 
this  waa  the  result  of  collnslon  and  fraud 
between  him  and  the  contractors.  In  re- 
sponse to  these  charges  the  contractors  as- 
sert that,  even  though  the  main  ditch  may 
have  been  excavated  wider  and  deeper  than 
indicated  in  the  specifications,  the  engineer 
rejected  any  excess  over  that  called  for  In 
making  the  measurements,  so  that  the  main 
ditch  cost  no  more  according  to  the  final 
report  than  It  would  have  had  it  been  no 
wider  and  the  bottom  no  lower  than  the  line 
estimated  In  their  preliminary  surrey.  They 
further  assert  that  the  preliminary  report 
was  uncertain  and  Indefinite  as  to  the 
amount  of  excavation  In  the  bayon,  and  that 
they  performed  the  work  under  the  direc- 
tion of  the  engineer,  and  should  be  com- 
pensated therefor. 

1.  The  dispute  as  to  the  main  ditch  first 
may  be  disposed  of.  In  the  final  report  the 
engineer  certified  that  about  one-third'  more 
earth  was  removed  than  had  been  estimat- 
ed in  the  preliminary  report  on  which  the 
board  of  supervisors  acted  in  ordering  the 
Improvement.  This  Is  a  large  discrepancy, 
and  Indicates  eith»  that  the  work  of  the 
preliminary  survey  was  not  performed  as 
carefully  as  it  should  have  been,  or  that  the 
final  report  Is  incorrect  It  appears  that  the 
elevations  were  taken  at  points  1,000  feet 
apart  In  making  the  preliminary  survey,  and, 
of  course,  those  of  the  ground  Intervening 
were  merely  inferred.  The  preliminary  re- 
port was  but  of  estimates,  while  that  finally 
made  was,  if  properly  prepared,  a  statement 
of  accurate  measurements  of  what  had  been 
done.  Some  difFerences  between  the  two 
were  to  be  anticipated,  and  that  these  are 
large  will  not  alone  justify  the  inference 
that  there  was  fraudulent  collusion  between 
the  engineer  and  contractors.  If  the  num- 
hev  of  cubic  yards  reported  as  excavated  In 
the  engineer's  final  r^ort  waa  actually  re- 
moved, and  in  measuring  the  same  he  in- 
cluded therein  nothing  below  tne  grade  line 
established  in  the  preliminary  report  as  the 
bottom  of  the  ditch  nor  any  of  the  excess 
In  width,  then  the  plaintifTs  are  not  entitled 
to  relief.  In  the  practical  work  of  exca- 
vating ditches  the  depth  and  width  often 
vary,  and  all  that  is  required  is  that  the 
ditch  be  constructed  in  substantial  conforlnl- 
ty  with  the  specifications.  The  complaint 
here  is  not  that  the  work  was  improperly 
done,  but  that  the  contractors  have  been  al- 
lowed by  the  engineer  for  excavating  deep- 
er or  wider  than  was  contemplated  by  the 
original  report  and  profile.  The  engineer  tes- 
tified that  In  the  final  report  nothing  of 
the  excavation  below  the  grade  line  estab- 
lished by  the  preliminary  survey  nor  of 
any  excess  In  width  was  included.  The  evi- 
dence was  undisputed,  and  therefore  we  nec- 
essarily reach  the  conclusion  that  the  plaln- 
tlKTs  are  not  entitled  to  relief  with  respect 
to  any  work  done  on  the  main  ditch. 

2.  The  following  extract  from  the  report 


of  the  engineer  clearly  Indicates  the  work 
which  was  to  be  done  In  the  bayou:  "The 
outlet  frdb  the  bayou  Is  a  small  channel 
under  the  above-mentioned  highway  bridge. 
During  the  time  of  high  water  in  the  river 
the  water  Is  held  back  In  the  bayon ;  In  fact, 
the  bayou  fills  up  with  backwater  from  the 
river.  The  water  level  in  the  bayou  will 
vary  several  feet  according  to  the  stage  of 
the  river.  The  backwater  from  the  river 
can  be  kept  out  of  the  bayou  by  a*  bulkhead 
across  the  channel  fitted  with  gates,  which, 
when  closed,  will  close  the  channeland  when 
open  will  allow  the  water  to  drain  from 
the  bayou,  the  bottom  of  the  gates  to  be 
set  so  as  to  lower  the  water  in  the  bayoa 
from  elevation  of  101.35,  its  present  stage,  at 
elevation  99.00.  A  design  for  a  bulkhead 
with  an  estimate  of  cost  accompanies  this 
report  To  put  in  the  bulkhead  will  necessi- 
tate the  removal  of  the  highway  bridge  and 
replace  that  with  an  embanlunent,  and  build 
a  20-foot  bridge  across  the  channel  leading 
to  the  bdlkhead.  This  channel  should  be  18 
feet  wide  and  about  1,000  feet  long..  It  la 
19,083  feet  or  3.8  miles  from  the  mouth  of 
the  bayou  to  Its  northern  end,  where  the 
county  ditch  empties  into  It  It  has  a  fall 
of  4.6  feet  In  the  distance.  From  the  river 
to  the  crossing  under  the  O.  B.  &  Q.  bridge 
No.  6,  a  distance  of  1  mile,  the  channel  Is 
several  hundred  feet  wide.  From  the  railroad 
bridge  an  arm  of  the  bayou  bears  east  and 
north  close  to  the  highway.  There  is  a 
bench  of  land  across  this  arm  extending 
from  the  railroad  tirldge  north  about  1,300 
feet,  which  bench  holds  water  above  it,  dur- 
ing medium  and  low  stages  of  water  In  bayon 
below.  A  channel  6  feet  wide  and  2^  feet 
deep  should  be  cut  through  this  bar.  The 
building  of  the  bulkhead  and  the  cutting 
through  the  bar  will.  In  my  opinion,  preclude 
the  possibility  of  flooding  any  of  the  land 
to  the  west  of  the  bayou  during  flood  periods 
and  will  afford  good  drainage  to  the  land 
at  all  times."  In  the  same  report  are  the 
estimates  of  cost :  "Excavating  outlet  chan- 
nel (3000  cu.  yd.  at  30(<)  $900.  *  ••  Ex- 
cavating channel  In  bayou  above  railroad 
bridge  (725  cu.  yds.  at  40^)  $290."  And  sum- 
marizing, under  the  heading  "Bayou  and  Out- 
let": "Length  of  outlet  channel  1000  feet 
Length  of  channel  above  railroad  1300  feet. 
•  •  *  Excavation  above  bridge  725  cu.  yds. 
Excavation  at  outlet  2700  yds."  In  addition 
to  the  above,  the  profile  filed  with  the  county 
auditor  indicates  the  extent  of  the  above 
excavations  to  be  as  stated.  The  report  also 
represented  that  a  portion  of  the  work  in  the 
outlet  channel  and  all  of  that  through  the 
bench  of  land  would  have  to  be  done  by  th3 
use  of  the  spade.  But  the  contractors  made 
use  of  a  dredge,  and,  Instead  of  excavating 
In  accordance  with  the  preliminary  survey, 
made  the  ditches  in  the  bayou  8,595  feet  in 
length  and  20  feet  in  width,  instead  of  the 
two  small  channels  as  recommended  la  the 


Digitized  by  VjOOQ  IC 


lowm) 


MONAGHAN  v.  VANATTA- 


613 


original  report.  This  was  done  by  the  con- 
tractors at  the  Instance  and  under  the  direc- 
tion of  the  engineer;  so  that,  although  the 
contractors  constmcted  the  main  ditch  with 
a  dredge  at  17  cents  per  cubic  yard,  they 
claim,  and  the  engineer  In  his  final  report  al- 
lowed, for  excavation  In  the  same  manner  In 
the  bayou  28  and  88  cents  per  cubic  yard, 
and.  Instead  of  widening  one  channel  1,000 
feet  long  and  excavating  a  small  channel 
1.300  feet  long,  removing  In  so  doing  8,725 
cable  yards  of  earth,  they  dug  channels  8,696 
feet  long  and  removed  20,162  cubic  yards 
of  earth.  According  to  the  testimony  of  the 
engineer,  the  amount  removed  in  the  bayou 
south  of  the  raUroad  bridge  was  10,4e&8 
cubic  yards  and  was  computed  at  28  cents 
per  cubic  yard.  This  work  was  not  limited  to 
widening  the  channel  outlet  as  contemplated 
In  the  contract,  but,  after  doing  this,  it  was 
extended  along  the  right  bank  of  the  bayou, 
BO  that,  instead  of  merely  widening  the  chan- 
nel from  the  bayou  to  the  Missouri  river,  an 
attempt  was  made  to  create  a  new  channel 
along  the  bottom  of  the  bayou.  Instead  of 
a  narrow  channel  6  feet  wide  through  the 
bench,  separating  the  waters  of  the  bayou, 
north  of  the  railroad  bridge,  a  channel  20 
feet  wide  was  excavated,  and  it  extended 
along  the  bottom  of  the  bayon  by  the  removal 
of  9,696  cubic  yards  of  earth,  and  this  was 
compnted  at  38  cents  per  cubic  yard.  Not 
a  paper  on  file  gave  any  Intimation  of  this 
work  or  its  character,  and  clearly  it  was 
not  contemplated  In  the  original  report  or 
the  contract  as  entered  Into  by  the  board  of 
supervisors. 

But  It  Is  said  that  the  preliminary  surveys 
and  estimates  of  the  work  to  be  done  in  the 
bayon  were  uncertain  and  indefinite,  and  that 
there  has  been  a  substantial  compliance  with 
them.  The  estimates  are  not  required  to  be 
definite.  The  length  of  the  channel  to  be 
widened  was  reported  about  1,000  feet  long 
and  of  that  to  be  excavated  "about  1,300 
feet"  The  adverb  "about"  as  here  em- 
ployed means  "nearly,  approximately,  al- 
most," and  Indicates  that  the  distances  were 
not  Intended  to  be  accurately  stated,  but  es- 
timated and  otherwise  ascertainable.  Thus 
the  first,  the  small  channel  to  be  widened, 
was  described  as  extending  from  the  bayou 
under  the  wagon  bridge  to  the  river.  As 
the  lower  part  of  the  bayou  was  several  hun- 
dred yards  wide,  no  difficulty  could  be  ex- 
perienced in  understanding  precisely  what 
was  Intended.  Nor  could  any  doubt  arise 
regarding  the  excavation  of  a  ditch  six  feet 
wide  through  the  bench  of  land  north  of  the 
raUroad  bridge.  It  was  through  this,  wheth- 
er somewhat  more  or  less  than  1,300  feet  wide 
or  long,  that  the  ditch  was  to  be  dug.  This 
was  as  apparent  to  the  contractors  as  to  any 
one  else  who  chose  to  examine  the  engineer's 
report  and  profile.  If,  then,  the  statement  of 
the  distances  named  be  regarded  as  uncer- 
tain, the  character  of  the  Improvements  to 


be  made  was  not  left  In  doubt,  and  neither 
the  contractors  nor  the  engineer-  were  au- 
thorized to  change  them  nor  add  others 
without  an  order  of  the  board  of  supervisors. 
The  statute  of  which  both  had  notice  points 
out  precisely  how  changes  of  this  kind  may 
be  effected.  "If,  after  said  contract  shall 
have  been  let  and  the  work  begun,  it  shall 
become  apparent  to  the  engineer  in  charge 
that  the  dimensions  of  the  levee,  ditch,  or 
drain  shonld  be  enlarged,  deepened  or  other- 
wise changed  for  the  better  service  thereof 
of  the  lands  benefited,  then  the  engineer  shall 
report  such  fact  to  the  supervisors,  explain- 
ing to  them  the  necessity  for  such  change 
In  the  dimensions  of  said  improvement  as  the 
engineer  shall  recommend,  provided  that,  be- 
fore such  action  shall  be  taken,  like  notices 
shall  be  given  and  like  proceedings  had  as 
hereinbefore  provided  for  the  establishment 
of  the  levee  or  drainage  district"  No  report 
such  as  contemplated  was  ever  made  nor  ac- 
tion of  the  board  of  supervisors  taken.  No 
price  for  excavating  the  channel  in  the  bot- 
tom of  the  bayou  was  agreed  to,  and  the 
computation  by  the  engineer  in  his  final  re- 
port was  arbitrary  and  unwarranted.  Pos- 
sibly the  action  of  the  waters  carried  the 
debris  into  the  bayon.  and,  owing  to  changed 
conditions,  the  engineer  might  have  suppos- 
ed he  was  endowed  with  authority  to  change 
the  plans  to  meet  the  new  conditions.  The 
statute,  however,  covers  such  a  contingency, 
and  directs  the  course  to  be  pursued.  While 
the  engineer  appointed  by  the  board  of  super- 
visors "has  charge  of  the  work  of  construc- 
.tlon"  (section  1989a7,  Code  Supp.  1907),  he  Is 
not  authorized  to  modify  the  plans  adopted 
by  the  board  without  its  approval  by  widen- 
ing the  drainage  ditch  or  unduly  extending 
It.  He  is  a  creature  of  the  law  which  pre- 
scribes the  course  to  be  pursued  in  order 
that  either  may  be  done,  and  In  the  case 
at  bar,  in  directing  the  contractors  to  make 
the  change  in  question  and  in  reporting  that 
they  were  entitled  to  the  Increased  qompen- 
satlon,  he  was  acting  In  excess  of  his  an- 
thority  as  the  contractors,  whose  familiarity 
with  the  law  is  to  be  assumed,  must  have 
known,  and  in  fraud  of  the  rights  of  the  tax- 
payer. His  final  report  being  so  tainted  fur- 
nishes no'  obstacle  to  ascertaining  the  "bal- 
ance due"  the  contractors  by  the  county 
auditor. 

Appellants  argue  that  as  the  engineer  has 
made  estimates  in  pursuance  of  statute,  and 
these  have  been  approved  by  the  board  of 
supervisors,  such  estimates  should  be  treated 
as  conclusive.  Section  1969a9,  Code  Suppw 
"The  engineer  in  charge  of  the  constructicn 
shall  furnish  the  contractor  monthly  esti- 
mates of  the  amount  of  work  done  on  each 
section,  and  upon  filing  the  same  with  the 
auditor  he  shall  draw  a  warrant  In  favor  of 
such  contractor,  or  deliver  to  him  Improve- 
ment certificates  as  the  case  may  be,  for 
eighty  per  centum  of  the  value  of  the  work 


Digitized  by  VjOOQ  l€ 


6U 


122  NORTHWESTEBN  REPORTER. 


(lUcli. 


done  according  to  estimate,  and  when  said 
improvement  Is  completed  to  the  satisfaction 
of  the  engineer  In  charge  thereof  and  so  cer- 
tified by  him  to  the  board  and  approved  by 
It,  the  auditor  shall  draw  a  warrant  in  favor 
of  said  contractor  upon  the  levee  or  drain- 
age fund  or  deliver  to  him  improvement  cer- 
tificates, as  the  case  may  be,  for  the  balance 
due."  No  authority  is  thereby  conferred  on 
the  board  of  supervisors  to  pass  on  the  es- 
timates preceding  the  final  report  of  the  en- 
gineer. Nor  did  the  board  assume  such  duty. 
An  approval  with  date  was  indorsed  on  each 
of  the  estimates  by  the  chairman  of  the 
board,  describing  himself  as  such,  but,  as 
this  was  not  in  discharge  of  an  o£acial  duty, 
it  was  of  no  significance.  It  is  only  when 
the  work  is  completed  that  the  board  of  su- 
pervisors is  called  upon  to  approve  or  disap- 
prove it,  and,  if  approved,  the  auditor  to  Is- 
sue warrant  or  certificate  for  the  "balance 
due."  The  main  purpose  of  withholding  from 
the  estimates  the  20  per  cent,  reserve  Is  to 
Insure  the  completion  of  the  Improvement 
But  another  purpose  also  is  served  by  ob- 
viating over  payment,  through  mistake  or  de- 
sign, to  the  contractor.  The  statute  does  not 
direct  payment  of  the  20  per  centt\m  reserv- 
ed, but  of  the  "balance  due,"  and  this  can 
only  be  ascertained  from  a  careful  computa- 
tion of  the  work  performed  under  the  con- 
tract at  the  prices  agreed  upon  and  the  de- 
duction of  the  sums  paid  under  the  engineer's 
estimates.  This  computation  is  to  be  made 
by  the  county  auditor,  based  on  estimates 
and  reports  of  the  engineer  of  the  improve- 
ment ordered  by  the  board  of  supervisors. 
How  far  bis  action  may  be  determined  by  the, 
board  need  not  be  considered  farther  than 
/to  say  that  its  approval  might  well  indicate 
the  portions  of  the  work  within  the  contract. 
Here  neither  the  board  nor  the  auditor  have 
acted,  and  all  now  necessary  is  to  indicate 
what  must  be  excluded  by  the  auditor  as  not 
within  the  contract  In  computing  the  amount 
for  which  a  warrant  shall  Issue  upon  the  ap- 
proval of  the  Improvement  by  the  board. 
That  It  has  been  completed  in  substantial 
conformity  with  the  contract  Is  not  question- 
ed. The  only  issues  are  with  respect  to  the 
compensation  to  which  the  contractors  are 
entitled.  Shall  they  be  paid  for  excavations 
along  the  bottom  of  the  bayou,  which  have 
proven  of  no  benefit,  and  is  not  Included  In 
the  contract,  and  for  widening  one  channel 
two  feet  and  excavating  another  14  feet  more 
than  called  for?  There  should  be  little  dlf- 
fiailty  in  responding  to  this  Inquiry,  especial- 
ly In  view  of  the  statute  quoted.  But  it  is 
urged  that  the  engineer  was  the  agent  of 
plaintiffs  who  petitioned  for  the  Improvement. 
If  so,  the  extent  of  bis  agency  was  defined 
by  law,  and  In  the  respects  mentioned  he  did 
not  act  within  the  scope  of  his  authority. 
Equally  without  support  is  the  plea  of  estop- 
pel. Plaintiffs  are  not  shown  to  have  been 
aware  of  the  lowering  of  the  bottom  of  the 


bayou,  or  that  the  channels  were  being  made 
wider  than  called  for  in  the  specificatioxLa. 
They  had  the  right  to  assume,  in  the  absence 
of  knowledge  to  the  contrary,  tliat  the  work 
was  being  performed  In  compliance  with  tlie 
contract  Racer  v.  Wingate,  138  Ind.  114.  36 
N.  K  540;  Steckert  v.  City  of  East  Saginaw^. 
22  Mich.  104.  The  contractors  do  not  pre- 
tend to  have  been  misled  by  their  conduct 
or  acquiescence.  Complaint  was  promptly 
made,  and  no  reason  has  been  suggested  for 
not  affording  them  a  hearing  by  any  of  tbe 
numerous  authorities  cited  by  appellant  See 
Wood  V.  Hall,  138  Iowa,  308,  110  N.  W.  270; 
Thompson  T.  MItdiell,  133  Iowa,  527,  110  N. 
W.  901;  McCoy  v.  Able,  131  Ind.  417,  30  N. 
El  528,  81  N.  B.  453;  Ricketts  v.  Hyde  Park. 
85  111.  110.  The  remedy  songht  is  not  to  en- 
Join  an  assessment  or  the  collection  of  com- 
pensation approved  by  those  authorized  to 
determine  the  amount,  but  to  enjoin  the 
county  board  and  auditor  from  Including 
payments  not  Included  In  the  improvement  as 
ordered  nor  provided  for  in  the  contract  in 
computing  the  "balance  due"  the  contractors. 
The  work  in  the  bayon  If  done  according  to 
the  original  report  and  profile  would  have 
cost  $1,415.50.  The  final  report  recommend- 
ed the  payment  of  |6,&15.36,  or  an  excess  of 
$5,499.86.  Deducting  this  from  the  balance 
as  reported  by  the  engineer,  $6,335.79,  and  we 
have  as  the  amount  for  which  no  warrant 
has  been  Issued  the  stmi  of  $825.93.  The  de- 
cree of  the  district  court  will  be  so  modified 
as  to  direct  the  auditor  to  issue  a  warrant 
for  this  amount,  and  the  cause  remanded  for 
proceeding  not  Inconsistent  with  this  opinion. 
One-half  of  the  costs  in  this  court  will  be 
taxed  to  each  party. 
Modified  and  affirmed. 


TORRET  et  al.  v.  TOLEDO  PORTLAND 
CEMENT  CO.  et  al. 

(Supreme  Court  of  Michigan.     Oct.  4,   1909.) 

1.  Corporations   (§  30*)— Promoters— Fidu- 
ciary Relation. 

Promoters  of  a  corporation  sustain  a  fida- 
ciaiy  relation  toward  other  stockholdeis  and 
creditors. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent.  Dig.  §§  97-100;   Dec  Dig.  i  30.*] 

2.  Corporations  (S  99*)—Promoteb8— Unpaid 
Stock. 

Promoters  of  a  corporation  retained  lor 
themselves  as  paid-up  9,000  shares  of  the  par 
value  of  $90,000,  and  three  of  them,  who  had  op- 
tions on  land  to  be  conveyed  to  the  corporation, 
were  to  receive  therefor  $35,000  in  addition  to 
the  stock ;  the  rest  of  the  stock  being  intended 
for  sale  to  the  public  at  par.  The  promoters  on 
selling  stock  were  also  entitled  to  receive  10  per 
cent,  compensation  for  selling.  The  promoters 
procured  others  to  subscribe  on  the  faith  of  a 
prospectus  stating  that  every  dollar  paid  in  for 
stock  would  be  used  for  the  company's  purposes, 
and  that  every  purchaser  would  enter  the  com- 
pany upon  the  same  footing.  The  promoters 
also  stated  that  there  was  no  preferred  stock  in 
the  enterprise.    Beld,  that  they  were  each  liable 


•For  other  cues  lee  uime  topic  and  section  NUMBBR  la  Dec.  *  Am.  Dita.  IMT  to  d>t%  *  Reportw  Indu« 


Digitized  by 


Google 


Micb^ 


TOBRBT  T.  TOLEDO  PORTLAND  CEMENT  00. 


615 


for  the  uipald  port  of  the  stock  bo  issued  to 
them. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  IS  444-^40;    Dec.  Dig.  |  90.*] 

Appeal  from  Circuit  Court,  Washtenaw 
Ck>anty,  in  Chancery;  Edward  D.  Kinne, 
Judge. 

Action  by  Orlando  L^  Torrey  and  others 
against  the  Toledo  Portland  Cement  Com- 
pany and  others.  Decree  for  complainants 
for  less  than  the  relief  demanded,  and  they 
appeal.    ReveEsed  and  rendered. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  HOOKER,  and  MOORE,  JJ. 

A  F.  &  F.  M.  Freeman  and  A  J.  Waters, 
for  appellants.  A.  3.  Sawyer  &  Son  and  E. 
B.  Norrls  (Shunlc  &  Thompson  and  C.  F. 
Watts,  of  counsel),  for  appellees. 

GRANT,  J.  Defendant  Watts  demurred  to 
the  bill  of  complaint  in  this  case.  His  de- 
murrer was  overruled.  Be  appealed  to  this 
court  The  action  of  the  court  below  was  sus- 
tained, and  the  case  remanded  for  the  fram- 
ing of  Issue  and  bearing  upon  the  merits. 
150  Mich.  86, 113  N.  W.  580.  The  hearing  has 
been  had  and  the  bill  dismissed  as  to  defend- 
ants Watts  and  Cooley,  and  a  decree  rendered 
against  defendant  Van  Yalkenburg  for  $7,- 
ijOO.    Complainants  have  appealed. 

To  the  statement  of  the  case  In  the  former 
opinion  should  be  added  that  the  bill  alleged 
that  ia  the  annual  report  of  the  corporation 
It  was  stated  "the  amount  of  capital  stock 
actually  paid  in  In  property  is  $90,000";  that 
this  was  false  and  a  part  of  the  fraudu- 
lent scheme  to  decelTe  those  who  might 
and  who  did  subsequently  subscribe,  other- 
wise the  statement  there  made  is  a  suffi- 
cient statement  for  this  opinion.  The  alle- 
gations of  the  bill  are  In  the  main  sustain- 
ed by  the  proofs.  The  Michigan  secretary 
and  treasurer  were  only  nominally  such  of- 
ficers. An  assistant  secretary  aud  assistant 
treasurer  were  elected  in  Toledo,  and  the 
entire  duty  of  those  offices  were  by  resolu- 
tion imposed  upon  them.  There  were  indi- 
cations of  marl  upon  the  lands  described  in 
the  bill,  and  options  from  several  owners  of 
such  lands  were  obtained  by  defendant  Cool- 
ey through  the  advice  of  Van  Yalkenburg. 
The  options  were  taken  In  the  name  of  Cool- 
ey at  a  price  of  $1  each.  These  options  cov- 
ered 800  acres  of  land,  and  the  price  to  be 
paid,  if  the  lands  were  taken,  was  about 
$20,000.  The  right  to  take  any  portion  there- 
of and  to  pay  proportionately  was  secured 
by  the  options.  These  options  were  obtained 
for  the  purpose  of  forming  a  corporation  to 
manufacture  cement  They  were  subsequent- 
ly assigned  to  three  of  the  nine  promoters 
and  organizes.  They  (nine  in  number)  met 
organized  the  corporation  with  a  capital  stock 
of  $500,000,  issued  as  fully  paid.  Seven  sub- 
scribed for  500  shares  of  stock  each,  and  two 
for  750  shares  each.    The  three  paid  noth- 


ing for  the  assignments  by  Cooley  to  them. 
The  articles  of  association  stated  that  $50,- 
000  of  the  capital  stock  had  been  paid  in  at 
the  date  thereof,  being  10  per  cent  of  the 
capital  stock.  The  entire  nine  elected  them- 
selves directors,  with  defendant  Watts  as 
president  The  directors,  or  some  of  them, 
advanced  money  sufficient  to  pay  the  state 
fee  for  filing  the  articles  of  incorporation. 
This  money  was  subsequently  refunded  to 
them  oat  of  moneys  received  from  the  sale 
of  stock  thereafter  sold  to  other  parties.  The 
promoters  retained  for  themselves  as  paid-up 
stock  9,000  shares,  of  the  par  value  of  $90,- 
000.  The  three  who  had  an  assignment  of 
the  options  from  Cooley,  together  with  an 
option  from  himself  for  some  land  of  his 
own,  were  to  receive  $35,000  In  addition  to 
their  stock,  when  the  title  to  the  lands  should 
be  obtained.  The  rest  of  the  stock  was  to 
be  returned  into  the  treasury  as  treasury 
stock  and  sold  at  par.  Each  of  the  pro- 
moters selling  any  stock  was  to  receive  10 
per  cent  thereof  as  a  compensation  for  sell- 
ing. Cooley  claims  that  he  was  to  receive 
his  500  shares  for  securing  the  options.  The 
options  were  never  assigned  to  the  corpora- 
tion, although  there  Is  evidence  that  they 
were  present  at  one  of  the  meetings  of  stock- 
holders. The  options  were  apparently  ig- 
nored in  finally  obtaining  the  tittle  to  the 
lands  purchased.  In  all  234^4  acres  were 
purchased  at  an  expense  of  $9,880,  and  not 
all  of  this  was  covered  by  the  options.  A 
committee,  of  which  defendant  Watts  was 
chairman,  reported  that  the  committee  had 
rejected  certain  options  and  bought  certain 
other  pieces;  that  Rochford,  Butler  Sc  Van 
Yalkenburg,  the  assignees  of  Cooley,  have 
never  assigned  or  delivered  to  the  company 
an  option  given  them  by  Cooley;  and  that 
they  found  in  the  company's  archives  cer- 
tain options  running  not  to  the  company,  but 
nine  of  them  to  Charles  M.  Cooley,  and  one 
to  Yan  Yalkenburg,  and  all  assigned  to  Roch- 
ford, Van  Yalkenburg  &  Butler.  They  fur- 
ther report  that  they  had  to  go  direct  to  the 
owners  of  these  lands  to  purchase,  as  there 
was  nothing  to  prevent  the  owners  from  de- 
nying any  rights  on  the  part  of  the  com- 
pany. Defendant  Watts  admits  that  he  did 
not  tell  "anybody  about  this  $00,000  stock 
matter.  I  didn't  do  it  because  I  didn't  want 
to.  I  didn't  think  it  would  make  a  favorable 
report" 

Mr.  Wehrle,  the  agent  for  the  Arbuckle- 
Ryan  Company,  who  contracted  to  sell  the 
cement  company  a  large  amount  of  machin- 
ery, testified  that  Dr.  Watts  told  him  that 
the  "$500,000  of  stock  was  to  be  sold  and 
was  being  sold,  and  at  that  time  there  was 
practically  $200,000  of  stock  sold,  and  that 
the  ratlre  proceeds  of  the  $500,000  of  stock 
sold  went  into  the  plant,  less  a  commission 
of  10  per  cent  I  asked  him  whether  any 
promotion  stock  had  been  Issued,  and  he  said 


•For  othar  mm*  «m  uun*  topic  and  section  NUlf  BER  In  Dee.  *  Am.  Dig*.  U07  to  date.  *  Reportar  Indazw 


Digitized  by 


Google 


616 


122  NORTHWESTEBN  RBPORTEB. 


^cb. 


that  not  |1,  nor  would  there  be, — that  the 
entire  $600,000  would  go  Into  the  plant."  In 
the  pioBpectuB  issued  by  these  promoters 
they  stated:  "We  have  purchased  800  acres 
of  land  near  Manchester,  Washtenaw  coun- 
ty, Kich.  •  •  •  The  stock  Is  all  com- 
mon. There  Is  no  preferred  stock,  as  we 
consider  one  man's  dollar  as  good  as  any  oth- 
er man's.  Every  dollar  paid  In  for  stock 
will  be  used  to  further  the  best  Interests  of 
the  company  In  buildings,  equlpiiients,  op- 
erating expenses.  •  *  •  We  have  for  sale 
a  limited  amount  of  stock,  and  each  pur- 
chaser of  stock  will  enter  the  company  on 
the  same  footing  as  all  other  stockholders, 
as  we  have  no  preferred  stock."  As  soon  as 
It  became  known  that  $90,000  of  the  stock 
had  been  retained  by  the  original  promoters 
and  organizers  without  the  payment  of  a 
dollar  therefor,  that  in  addition  $35,000  was 
to  be  p&ld  for  the  purchase  of  the  land,  and 
that  none  of  the  capital  stock  had  been  paid 
in  except  upon  the  basis  of  the  value  of  the 
options,  it  became  Impossible  to  obtain  fur- 
ther subscriptions.  The  directors  sought 
then  to  bond  the  company  for  a  large  amount 
of  money,  but  it  was  impossible  to  float  the 
bonds  except  for  the  small  amount  above 
stated. 

We  need  not  pursue  further  the  transac- 
tions of  these  promoters  and  organizers,  in- 
cluding the  defendants,  nor  the  efforts  made 
to  float  the  enterprise  after  it  was  launched. 
The  Judge  found  that  "the  relation  of  the 
so-called  promoters  or  original  stockholders 
towards  all  of  the  parties  interested  must 
be  regarded  as  fiduciary."  He  further  held 
that  "they  may  have  been  mistaken  as  to 
their  legal  rights  and  obligations;  but  I  do 
not  think  they  were  dishonest  In  their  plans 
and  purposes.  •  *  •  If  there  was  a  con- 
cealment or  deception  or  fraud,  such  conduct 
would  vitiate  the  whole  transaction.  The 
view  which  I  have  taken  of  the  case  does  not 
render  it  necessary  for  me  to  pass  decisively 
upon  these  questions."  The  court  entered  a 
decree  holding  that  "the  office  of  secretary 
and  treasurer  of  the  company  and  the  duties 
and  functions  of  each  were  usurped  by  alleg- 
ed assistants  secretary  and  treasurer;  that 
Its  books,  papers,  accounts,  credits,  state- 
ments, assets,  and  funds  were  improperly 
and  unlawfully  kept  away  from  the  state  of 
Michigan,  and  at  Toledo,  state  of  Ohio,  and 
that  the  abuse  of  the  defendant's  corporate 
powers  and  such  a  violation  of  the  law  of 
its  being  operated  as  a  forfeiture  of  Its  fran- 
chise, and  appointed  a  receiver,"  and  au- 
thorized the  sale  of  the  company's  property. 
The  decree  contains  other  provisions  not  nec- 
essary to  mention. 

The  decision  of  the  circuit  Judge  as  to 
Watts  and  Cooley  is  based  upon  the  theory 
that  they  did  not  sell  any  of  their  stock ;  that 
they  had  not  profited  by  the  transaction; 
that  the  organization  was  upon  the  advice 
of  counsel ;  and  that  they  made  honest  efforts 
after  the  enterprise  was  launched  to  make 


It  a  success.  It  is  manifest  that,  If  these  de- 
fendants and  their  co-promoters  and  organ- 
izers had  stated  truthfully  the  facts  in  re- 
gard to  the  actual  condition  of  this  corpora- 
tion at  Its  Inception,  It  would  have  been  im- 
possible to  obtain  subscriptions  from  men  of 
sanity.  They  not  only  did  not  inform  the 
public  of  the  real  situation,  but  misled  those 
with  whom  they  dealt  by  concealing  the 
facts.  As  soon  as  the  real  facts  became 
known,  subscriptions  ceased  and  the  enter- 
prise collapsed.  We  agree  with  the  circnit 
judge  that  these  promoters  and  organizers 
stood  In  a  fiduciary  relation  to  all  subsequent 
subscribers  having  no  knowledge  of  the  facts 
and  to  creditors  with  whom  they  dealt  As 
such  fiduciaries,  they  are  held  to  the  strictest 
honesty  and  open  dealing.  It  Is  immaterial 
whether  they  gained  or  lost  by  the  transac- 
tion. It  is  sufficient  to  establish  llabUity  If 
those  with  whom  they  dealt  in  this  fiduciary 
capacity  have  suffered  loss  by  their  conceal- 
ment of  facts  or  misrepresentation.  Tbat 
the  complainants  have  suffered  loss  Is  estab- 
lished beyond  controversy.  Why  is  Van 
Valkenburg  liable?  He  obtained  money  by 
Belling  the  stock  Issued  to  him.  Watts  and 
Cooley  retained  their  stock.  The  same  rule 
applies  to  all  three,  and  as  well  to  the  pro- 
moters who  are  not  parties  to  this  suit  The 
good  intentions  of  the  defendants,  their  be- 
lief in  the  value  of  the  property  for  whicb 
they  had  options,  and  in  the  ultimate  success 
of  the  enterprise,  their  subsequent  efforts, 
however  strenuous,  to  obtain  funds  to  make 
it  a  success,  are  wholly  immaterial.  Their 
liability  is  not  measured  by  any  or  all  of 
these  things.  If  the  assertions  of  honest  b&- 
lief  of  those  dealing  in  "wildcat"  transac- 
tions and  in  the  affairs  of  "high  finance" 
were  allowed  as  a  defense  to  their  conduct, 
few  could  be  held  liable.  These  parties  con- 
cealed when  they  should  have  disclosed  the 
facts.  They  stated  what  was  not  true  in 
their  prospectus,  issued  for  the  purpose  of 
obtaining  subscribers  to  the  stock.  Watts 
not  only  concealed,  but  stated  to  the  agent  of 
the  Arbuckle-Ryan  Company  what  was  not 
true.  This  was  done  for  no  other  purpose 
than  to  induce  the  agent  to  make  the  con- 
tract Such  a  transaction  finds  no  approval 
in  law  or  equity.  Neither  can  defendant 
Watts  sustain  his  nonliability  on  the  ground 
that  the  $5,000  of  stock  was  Issued  to  him  as 
compensation  for  his  agreement  to  act  as 
president  for  one  year.  He  received  the  same 
amount  as  did  the  others.  Defendant  Cooley 
could  as  well  maintain  the  issue  of  $5,000  to 
him  on  the  ground  of  his  obtaining  the  op- 
tions; and  the  others  might  find  some  other 
fancied  consideration  for  the  Issue  of  the 
stock  to  them.  These  nine  parties  were  pro- 
moters and  organizers,  and  were  bound  in 
good  faith  to  state  to  those  with  whom  they 
dealt  the  entire  condition  of  the  affairs  of  the 
company  so  far  as  their  own  connection  with 
It  was  concerned.  They  Induced  others  to 
buy  stock  at  its  par  value,  while  they  paid 


Digitized  by  VjOOQ  IC 


MlclL) 


ULLMAN  y.  8ANDELL. 


617 


Dotting,  but  some  of  them  at  least  have 
profited  by  the  transaction.  Defendant 
Watts  was  paid  in  cash  $600  as  salary  for 
president  the  second  year.  He  sold  stock  on 
wblch  he  received  commissions  amounting 
to  about  $1,200.  Cooley  received  a  consid- 
erable amount  of  money  for  the  sale  of  bis 
land  to  the  corporation— land  substantially 
valueless  for  farming  or  other  purposes. 
These  promoters  and  organizers  now  seek  to 
retain  what  they  received,  and  to  cast  the 
entire  loss  and  debts  of  this  corporation  up- 
on Innocent  stockholders  who  purchased  ni>- 
on  the  representations  that  all  stockholders 
were  on  the  same  basis.  If  this  transaction 
can  be  sustained,  then,  as  is  well  said  by  the 
Supreme  Court  of  Wisconsin:  "The  well-set- 
tled doctrine  that  promoters  cannot  secretly 
obtain  profits  from  tbe  corporation  they  cause 
to  be  organized  and  launched  into  tbe  busi- 
ness world  without  being  responsible  to  it 
therefor  can  be  easily  evaded  by  their  organ- 
izing tbe  corporation,  taking  part  of  the 
stock  ostensibly  at  the  full  par  value  thereof 
In  cash,  but  really  paying  little  or  nothing 
therefor,  and  then  inducing  others  to  take 
the  balance  of  the  stock  in  ignorance  of  the 
facts,  paying  tbe  full  par  value  therefor  into 
the  corporate  treasury."  Pletsch  v.  Mii- 
brath,  123  Wis.  647,  101  N.  W.  388,  102  N. 
"W.  342,  68  L.  R.  A.  948,  107  Am.  St  Rep. 
1017.  See,  also,  Fred  Macey  Co.  v.  Macey, 
143  Mich.  138,  106  N.  W.  722,  6  L.  R.  A.  (N. 
S.)  1086;  Hinkley  y.  Sac  Oil  &  Pipe  Line, 
132  Iowa,  896,  107  N.  W.  629,  119  Am.  St 
R^.  664.  These  nine  promoters  and  organ- 
izers attempted  to  acquire  title  to  nearly 
one-fifth  of  the  capital  stock  of  this  corpora- 
tion without  any  real  consideration,  and 
without  the  payment  of  a  single  dollar  In 
money.  The  law.  Justice,  anQ  equity  require 
that  they  pay  what  other  stockholders  have 
been  obliged  to  pay.  The  corporation  Is  dead. 
The  court  has  so  decreed,  and  that  its  af- 
fairs be  wound  up. 

The  decree  will  be  reversed  and  decree  en- 
tered in  accordance  with  this  opinion,  direct- 
ing an  accounting  and  a  payment  by  tbe  de- 
fendants of  such  amount  as  will  place  them 
upon  the  same  basis  as  the  other  stockhold- 
ers, and  the  case  remanded  for  further  pro- 
ceedings. The  complainants  will  recover  the 
costs  of  both  courts. 


ULLMAK  et  al.  v.  SANDBLL,  Treasuter. 
(Snpreme  Coort  of  Michigan.     Oct  4,  1009.) 
1.  Afpbal  and  Bbbob  (i  776*)— Wbit  or  Eb- 

BOB— DlSMISSAI.. 

PlaintifF  in  error,  haring  notified  respond- 
ent of  the  time  and  place  of  settling  a  bill  of 
exceptions,  may,  on  objection  being  made,  with- 
draw and  dismiss  the  writ,  bat  only  on  payment 
of  costs. 

[Eld.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Wg.  H  3115-3118;  Dec.  Dig.  { 
776.*] 


2.  Gektiobabi  (I  60*)  — IssuAKCE  — None*— 

DlStCISSAI.. 

Though  appellee  on  the  issnance  of  cer- 
.tlorari  is  given  the  right  to  notice  of  the  is- 
suance, and  date  and  return  day  of  the  writ,  by 
Supreme  Court  rule  6,  relator's  failure  to  give 
such  notice  does  not  entitle  appellee  to  a  dis- 
missal of  the  writ  as  a  matter  of  right  under 
rule  9,  providing  that,  when  a  motion  is  made 
to  dismiss  a  wnt  of  certiorari,  the  court  may 
grant  or  deny  it  on  such  terms  and  conditions  as 
justice  may  require. 

[Ed.  Note.— For  other  cases,  see  Certiorari, 
Cent  Dig,  |  158;   Dec  Dig.  |  60.*] 

Action  by  Joseph  Ullman  and  others 
against  Andrew  SandeU,  Treasurer,  etc.  On 
motions  to  dismiss  a  writ  of  error  and 
a  writ  of  certlorarL  Motion  granted  as  to 
writ  of  error,  and  denied  as  to  writ  of  cer- 
tiorari. 

Argued  before  BLAIR,  0.  J.,  and  GRANT, 
MOORB,   McAIiVAY,  and  BROOKE.  JJ. 

George  O.  Drlscoll  and  Curtis  Buck,  for 
the  motion.    Julius  J.  Pat^,  opposed. 

MOORB,  J.  This  is  a  motion  to  dismiss 
a  writ  of  error,  and  also  a  motion  to  dismiss 
a  writ  of  certiorari.  Relators  made  applica- 
tion tor  a  writ  of  mandamus  to  compel  pay- 
ment to  the  relators  of  a  negotiable  order. 
Tbe  writ  of  mandamus  was  denied  because 
of  a  purported  Judgment  rendered  against 
said  township  of  Ironwood  by  a  Justice  of 
the  peace  in  a  certain  garnishment  pro- 
ceeding determined  before  him.  This  order 
was  entered  February  23,  1909.  At  the  same 
time  a  consent  order  was  made  giving  the  re- 
lators until  May  17,  1009,  to  perfect  an 
appeal  upon  certain  conditions  which  were 
complied  with.  April  27,  1909,  relators  sued 
out  a  writ  of  error,  and  also  filed  a  petition 
for  a  writ  of  certiorari.  Notice  of  the  Is- 
snance was  served.  A  further  extension  of 
time  to  perfect  tbe  appeal  was  made. 

Respondent  objected  to  the  settlement  of 
a  bill  of  exceptions  for  several  reasons, 
among  others  that  the  mandamus  proceedings 
should  be  reviewed  by  certiorari,  and  not  by 
writ  of  error.  Thereupon  the  circuit  Judge 
declined  to  settle  the  bill  of  exceptions. 
June  7th,  a  writ  of  certiorari  was  allowed 
against  tbe  circuit  Judge  returnable  June 
29th.  Personal  service  was  had  upon  the 
circuit  Judge,  who  made  a  return  to  the 
writ  of  certiorari,  which  return  was  filed 
in  this  court  June  22d.  On  June  26th  the 
relators  withdrew  their  writ  of  error  and 
gave  notice  thereof  to  the  respondent,  and 
also  then  for  the  first  time  served  notice  on 
the  attorneys  for  respondent  of  the  issu- 
ance of  the  writ  of  certiorari  of  the  return 
and  tbe  filing  thereof  In  this  court  Printed 
copies  of  the  record  and  briefs  have  been 
filed  in  this  court  In  tbe  certiorari  proceed- 
ing. 

Is  the  respondent  entitled  to  have  the  writ 
of  error  dismissed?  It  Is  said  he  Is  not  as 
he  objected  to  the  settlement  of  a  bill  of 


•For  other  easw  •••  same  topio  and  (Mtloa  NUUBKR  in  D«o.  *  Am.  Digs.  1907  to  data,  ft  Reporter  Indazw 


Digitized  by  VjOOQ  IC 


618 


122  NORTHWESTERN  REPORTER. 


(MIcli. 


exceptions,  because  the  writ  of  certiorari, 
and  not  the  writ  of  error,  was  the  proper 
method  of  reviewing  mandamus  proceedings, 
and  that,  as  relator  has  acted  upon  that 
tiuggestlon  and  voluntarily  withdrawn  the 
writ  of  error,  respondent  cannot  complain. 
In  Bh:ch  y.  Brown,  5  Mich.  31,  the  party 
suing  out  the  writ  of  error  asked  leave  to  dis- 
miss it  on  the  payment  of  costs  and  the 
court  granted  leave,  saying  It  was  In  accord- 
ance with  the  former  practice.  In  Bliss 
et  al.  V.  S.  W.  Tyler  &  Son  et  al.  (Mich.)  121 
N.  W.  766,  the  defendants  attempted  a  vol- 
untary dismissal  of  writs  of  error.  Justice 
Hooker,  in  speaking  for  the  court,  said:  "We 
understand  the  attempt  was  made  after 
learning  that  plalntlfF  had  already  made  or 
would  soon  make  this  motion  (a  motion  to 
dismiss  the  writ).  Whatever  the  fact,  we 
think  the  motion  should  be  granted  with 
costs  of  the  motion,  and  It  is  so  ordered." 
We  do  not  think  that  the  relator  can  sue 
out  bis  writ  of  error  and  notify  the  respond- 
ent of  the  time  and  place  of  settling  a  bill 
of  exceptions,  and,  when  objection  is  made 
thereto,  withdraw  his  writ  of  error  without 
giving  the  appellee  the  opportunity  to  re- 
cover costs.  The  motion  to  dismiss  the 
writ  of  error  Is  granted,  with  costs. 

The  respondent  queries  as  to  the  writ  of 
certiorari  as  follows:  "Where  a  writ  of  cer- 
tiorari is  Issued  out  of  the  Supreme  Court 
to*  review  a  mandamus  proceeding  in  a  cir- 
cuit court,  and  the  writ  is  directed  to  the 
judge  of  the  circuit  court,  Is  the  appellee 
not  entitled  to  have  a  return  set  aside 
and  stricken  from  the  flies  which  Is  made 
more  than  ten  days  after  the  Issuance  of 
the  writ,  but  before  any  notice  has  been  serv- 
ed upon  the  appellee  or  his  attorneys  under 
Supreme  Court  rule  5,  where  the  appellee 
has  been  given  no  opportunity  to  examine 
the  return  or  make  any  suggestions  or  ob- 
jections as  to  its  contents,  and  has  been 
served  with  no  copy  of  the  affidavit  upon 
which  the  writ  of  certiorari  was  issued?" — 
and  answers  the  query  in  the  affirmative. 
Undoubtedly  the  appellee  was  entitled  under 
rule  5  to  notice  of  the  issuance,  the  date, 
and  the  return  day  of  the  writ,  but  It  does 
not  follow  that  the  writ  must  be  dismissed 
for  want  of  said  notice.  Supreme  Court 
rule  9  provides  that,  when  a  motion  Is  made 
to  dismiss  a  writ  of  certiorari,  the  court  may 
grant  or  deny  the  same  on  such  terms  and 
conditions  as  the  Justice  of  the  case  may 
require.  It  has  been  the  contention  of 
the  appellee  that  the  mandamus  proceeding 
should  be  reviewed  by  certiorari.  If  the  re- 
turn to  the  writ  is  not  sufficient  a  proi>er  re- 
turn may  be  had,  but  now  that  the  case  Is 
here  with  printed  records  and  hriefs,  we 
do  not  think  the  writ  should  be  dismissed 
In  the  interest  of  Justice. 

The  appellees  will  recover  costs  of  this 
motion. 


BONNOyiUUBl  T.   CITY    OP   ALPENA. 

(Supreme  Coart  of  Michigan.     Qct  4,  1909.) 

Municipal  Corporations  (|  762*)— DETEcrr- 
IVK  Streets  —  Sewer  Trench  — Plumbkb's 

NEOUQENCB— LlABILITT   OF  CiTT. 

Where  a  licensed  plumber  employed  to 
make  a  sewer  connection  for  abnttine  property 
opened  the  street,  witb  the  city's  permission,  but 
negligently  failed  to  guard  the  trench  at  night, 
and  a  traveler  drove  into  It  and  was  injured, 
the  city  conld  not  escape  liability  because  the 
negligence  was  that  of  the  plumber. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  SI  1605-1800;  Dec. 
Dig.  S  762.*] 

Brooke,  X,  dissenting. 

Error  to  Circuit  Court,  Alpena  County; 
Frank  Emerick,  Judge. 

Action  by  Antolne  E.  Bonneville  against 
the  City  of  Alpena.  Judgment  for  defend- 
ant, and  plaintiff  brings  error.     Reversed. 

Argued  before  BLAIR,  a  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDBR,  H00KE3R, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

O'Brien  &  Francis  (I.  S.  Canfield,  of  coun- 
sel), for  appellant  Henry  K.  Gustln  (Jo- 
seph Cavanagh,  of  counsel),  for  appellee. 

HOOKER,  J.  Chlsholm  is  a  paved  street 
In  the  city  of  Alpena.  Bertrand,  the  owner 
of  a  house  on  the  east  side  of  said  street, 
being  desirous  of  connecting  the  same  wltli 
the  sewer,  which  was  near  the  curb  on  the 
opposite  side  of  the  street,  employed  a  plumb- 
er to  do  the  work.  To  do  this  Maynard,  tbe 
plumber,  employed  men  and  opened  a  ditch 
part  way  across  the  street,  having  first  ob- 
tained permission  to  do  so  from  tbe  street 
commissioner,  whom  he  notified  of  bis  inten- 
tion a  day  or  so  before  he  began  work.  Tbe 
trench  was  l^t  open  by  Maynard's  men 
without  placing  lights  to  Indicate  danger. 
Early  in  the  evening  one  Collins  while  rldlns 
a  bicycle  ran  into  the  trench.  He  immediate- 
ly went  to  the  police  station,  and  notified  an 
officer,  who  said  he  would  look  after  it,  which 
he  did,  placing  lights  there,  but  In  the  Interim 
the  plaintiff  drove  into  the  trench,  and  was 
injured.  The  court  directed  a  verdict  for 
the  defendant  for  the  reason  that  there  was 
no  failure  to  place  danger  signals  as  soon  as 
its  officers  had  notice  that  the  trench  was 
open. 

We  held  In  Monje  v.  Grand  Rapids,  122 
Mich.  646,  81  N.  W.  574,  under  charter  provi- 
sions not  differing  materially  from  the  char- 
ter of  Alpena,  that  the  responsibility  for 
sewer  and  sewer  connections  rested  upon  the 
city,  and  that  It  conld  not  escape  liability 
for  an  accident  caused  by  an  unprotected 
trench  for  a  sewer  connection  under  the 
excuse  that  it  was  not  liable  for  the  negli- 
gence of  a  licensed  plumber.  Sewer  connec- 
tions are  parts  of  the  sewer.  The  case  of 
sidewalk  construction  differs  under  the  char- 
ter of  West  Bay  City,  Act  No.  442,  Loc  Acts 


•For  otber  caiea  le*  Mm*  topio  and  isctlon  NUMBER  In  Dao.  *  Am.  DIsi.  1907  to  data,  ft  Raportar  Indaxas 


Digitized  by  LjOOQIC 


MlchO 


BONNEVILLE  v.  CITY  OF  ALPENA. 


619 


1897,  glTlns  aatborlty  to  the  city  "not  to 
itself  build  sidewalks  (except  In  certain  con- 
tingencies) but  to  require  the  owners  of  ad- 
jacent property  to  build  and  maintain  them." 
See  Thompson  t.  West  Bay  City,  137  Mlcb. 
94,  100  N.  W.  280;  Wright  v.  Muskegon,  140 
Mich.  216,  103  N.  W.  558. 

The  Judgment  should  be  reversed. 

BLAIR,  C.  J.,  and  GRANT,  MONTGOM- 
ERY, OSTRANDER,  MOORE,  and  McAL- 
VAY,  JJ.,  concurred  with  HOOKER,  J. 

BROOKE,  J.  (dissenting).  On  September 
30,  1807,  the  plaintiff,  a  physician,  in  the 
cl^  of  Alpena,  at  about  the  hour  of  7:30 
p.  m.,  was  driving  at  an  ordinary  gait  along 
Chisholm  street,  one  of  the  principal  paved 
streets  of  the  defendant  municipality.  One 
Bertrand  was  the  owner  of  premises  on  the 
easterly  side  of  Chisholm  street  He  de- 
sired to  connect  his  premises  with  the  sew- 
er in  Chisholm  street,  which  lies  under 
the  westerly  edge  of  the  pavement.  For  this 
purpose  he  employed  one  Maynard,  a  plumb- 
er. A  few  days  before  the  happening  of 
the  accident  Maynard  applied  to  William 
Stout,  defendant's  street  commissioner,  for 
permission  to  put  in  the  sewer  which  was 
given,  but  Stout  was  not  advised  by  Maynard 
when  he  was  going  to  put  It  in.  The  trench 
was  dug  on  the  morning  of  September  30th 
about  half  way  across  the  street  It  was 
about  five  feet  deep  and  two  feet  wide. 
Tbe  blocks  from  the  surface  of  the  pavement 
were  piled  as  a  barrier  about  three  feet  high 
at  the  side  of  the  trench.  William  McDon- 
ald, defendant's  sidewalk  and  paving  In- 
spector, was  present,  and  Instructed  Maynard 
bow  to  take  up  the  blocks  in  the  morning. 
It  Is  probable  he  was  likewise  there  In  the 
afternoon.  Maynard,  after  the  trench  was 
dug  part  way  across  the  street,  went  away, 
leaving  the  men  working  In  the  ditch.  When 
evening  came,  the  trench,  partially  unfilled, 
was  left  unprotected  except  by  the  barri- 
cade. No  lights  were  exposed.  About  7 
o'clock  one  Collins,  who  was  proceeding 
along  the  street  on  his  bicycle,  ran  into  the 
barricade,  and  fell  partly  into  the  ditch.  As 
soon  as  he  got  out,  he  went  immediately 
to  the  police  station  and  notified  Dan  Stout, 
n  policeman,  of  the  condition  of  the  ditch, 
who  stated  that  he  would  look  after  it  which 
he  did.  In  the  meantime,  however,  and  be- 
fore the  lights  were  placed  upon  the  barrier, 
the  plaintiff  drove  Into  the  ditch  and  was 
injured.  At  the  conclusion  of  the  plalntlCTs 
case  the  defendant  moved  for  the  direction 
of  a  verdict,  which  motion  was  granted  by 
the  learned  circuit  Judge. 

It  18  the  plaintiff's  claim  that  this  case  is 


ruled  by  Hayes  v.  West  Bay  City,  81  Mich. 
418,  51  N.  m  1067,  and  Monje  v.  City  of 
Grand  Rapids,  122  Mich.  646,  81  N.  W.  574. 
The  defendant  claims  it  is  ruled  by  Thomp- 
son V.  West  Bay  City,  137  Mich.  94,  100  N. 
W.  280,  and  Wright  v.  Muskegon,  140  Mich. 
215,  103  N.  W.  558.  We  think  that  the  con- 
tention of  the  defendant  is  correct  In 
Thompson  v.  West  Bay  City,  supra,  this 
court  said:  "We  go  as  far  as  we  are  Justi- 
fied, and  farther  than  defendant  would  con- 
cede, in  saying  that  the  evidence  proves  that 
defendant  knew  that  the  walk  was  guarded 
by  unsafe  barriers.  It  cannot  be  held  as  a 
matter  of  law  that  this  evidence  Justifies 
a  court  in  directing  a  verdict  for  the  plain- 
tiff without  assenting  to  the  proposition  that 
due  diligence  on  the  part  of  the  municipality 
required  It  after  knowledge  that  a  walk  is 
being  constructed,  to  Itself  guard  said  walk 
by  proper  barriers.  This  proposition  is 
equivalent  to  declaring  that  it  Is  negligence 
for  the  municipality  In  such  a  case  to  as- 
sume that  the  person  building  a  walk  will 
perform  the  duty  which  requires  him  to  prop- 
erly guard  It"  In  MonJe  v.  City  of  Grand 
Rapids,  supra,  the  liability  of  tbe  municipal- 
ity was  predicated  upon  the  fact  that  "the 
city  has  tbe  responsibility  of  constructlug 
sewers  and  their  connections,  under  the 
charter,  whether  it  be  done  by  their  own 
employes  or  by  persons  licensed  to  dig  up 
their  streets."  An  examination  of  the  char- 
ter of  the  city  of  Alpena  discloses  the  fol- 
lowing provision:  "Tbe  street  commissioner 
shall  under  the  direction  of  the  common 
council  superintend  the  making,  grading, 
•  •  •  of  all  streets,  •  •  »  drains,  and 
sewers  within  the  limits  of  the  city,  In  such 
manner  as  he  may  from  time  to  time  be  re- 
quired. •  *  *  "  It  win  be  noted  that  the 
foregoing  charter  provision  Is  silent  as  to 
sewer  connections,  and.  In  the  absence  of  a 
positive  statutory  duty,  we  are  unable  to 
say  that  the  municipality  should  respond  in 
damages  for  the  default  of  a  private  con- 
tractor when  he  is  engaged  in  constructing 
for  a  private  citizen  a  sewer  connection,  and 
escape  such  liability  when  the  like  default 
is  made  by  a  private  contractor  in  the  con- 
struction of  a  sldflwalk.  The  most  that  can 
be  said  in  the  case  at  bar  is  that  the  de- 
fendant through  its  officers  knew  that  the 
sewer  connection  was  being  constructed.  We 
do  not  think  that  because  McDonald,  the 
sidewalk  and  paving  inspector,  was  present 
and  Instructed  Maynard  how  to  take  the 
blocks  out,  it  can  be  said  that  he  was  super- 
vising the  work  In  such  a  manner  as  to 
bring  this  case  within  the  rule  laid  down  in 
Hayes  t.  West  Bay  City,  supra. 
The  Judgment  should  be  afilrmed. 


/ 


Digitized  by  LjOOQIC 


620 


122  NORTHWKSTEKN  BEPORTER. 


(Mich. 


BROUSIIlA.n  T.  KELLOGG  SWITCHBOARD 
&  SUPPLY  CO. 

(Supreme  Court  of  Michigan.     Pet  4,  1909.) 

1.  Masteb  and  Sebtant  (f  203*)— iNjmuBS 

TO  SEBVANT— ASSDMED  RiSK. 

The  principle  of  assumed  risk  is  based  on 
implied  contract  between  master  and  servant 
that  the  serrant  shall  assume  the  risk  of  all 
dangers  obTiousIy  Incident  to  his  employment 
and  is  Independent  of  the  negligence  of  the  em- 
ployer, or  tne  contributory  negligence  of  the  em- 
ploye. 

[E!d.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.,1  638;  Dec.  Dig.  $  203.*] 

2.  Masteb  and  Sebtant  (f  221*)— Injubieb 
TO  Sebtant  — AasuKKD  Risk  — Pbouibe  to 
Rbfaib. 

Where  an  employ^,  after  notifying  the  mas- 
ter of  a  dangerous  defect,  is  induced  to  continue 
bis  woilc  by  the  employer's  promise  to  repair, 
the  servant's  impllea  contract  to  assume  the 
risk  of  the  danger  is  suspended  for  a  reasonable 
time ;  the  employer  impliedly  agreeing  to  as- 
sume the  risk  of  injury  therefrom  himself. 

rEd.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  |  638;  Dec.  Dig.  <  221.*] 

3.  Masteb  and  Sebtant  (f  221*)— Injtjbt  to 
Sebtant— Absuued  Risk— Pboiosk  to  Re- 
pair—Tools. 

A  master's  promise  to  repair  a  defect  in 
so  far  as  it  operates  to  suspend  the  servant's 
agreement  to  assume  the  risk,  is  not  limited  to 
complicated  machinery,  but  includes  simple  tools 
as  well. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  {  638;   Dec.  Dig.  {  221.*] 

4.  MAerntB  and  Sebtant  ({  288*)— Abbuued 
Risk. 

Plaintiff  was  injured  by  the  slipping  of  a 
pole,  being  loaded  onto  flat  cars  by  means  of 
tongs  fastened  to  a  derrick  fall,  because  the 
points  of  the  tongs  were  dull  and  would  not 
hook  into  the  poles  sufficiently  to  hold  them  in 
place.  Plaintiff  on  the  day  of  the  injury  had 
complained  to  defendant's  foreman  that  the 
tongs  were  unsuitable,  who  replied  that  they 
bad  not  time  to  sharpen  the  tongs  then,  and 
did  not  have  any  others,  and  requested  plain- 
tiff to  continue  to  use  them  until  they  could  be 
sharpened  or  others  procured.  Held  a  promise 
to  repair,  so  that  plaintiff  did  not  assume  the 
risk  as  a  matter  of  law. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant CentDig.  H 1068-1088;  Dec.Dig.  i 288.*] 

5.  Masteb  and  Sebvant  (|  289*)  —  Injubies 
to  Sebtant— Contbibutobt  Neouoence>— 
Qoestion  tob  Jdbt. 

Where  plaintiff  continued  to  work  nnder  a 
derrick  fall,  being  used  to  hoist  poles  onto  a 
flat  car,  with  knowledge  that  the  tongs  were 
dull,  and  that  the  poles  were  liable  to  slip,  but 
only  after  his  foreman  had  requested  him  to 
continue  the  work  until  the  tongs  could  be 
sharpened  or  new  ones  procured,  and  he  was 
injured  on  the  same  day,  by  the  siipping  of  a 
pole,  he  was  not  negligent  as  a  matter  at  law. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant  CentDig.  U 1089-1132 ;  Dec.Dig.  $289.*] 

Brooke,  Grant  and  McAIvay,  JJ.,  dissenting. 

Error  to  Circuit  Court,  Delta  County; 
John  W.  Stone,  Judge. 

Action  by  Walter  Bronseau  against  the  Kel- 
logg Switchboard  &  Supply  Company.  Judg- 
ment for  defendant,  and  plaintiff  brings  er- 
ror.   Reversed,  and  new  trial  granted. 


Argued  before  BLAIR,  O.  J.,  and'GRANT, 
MONTGOMERY,  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Albin  W.  Norblad  (Newton  O.  Spencer,  of 
counsel),  for  appellant  I.  O.  Jennings  (E.  C. 
Eastman,  of  counael),  (or  appellee. 

BLAIR,  0.  J.  Plaintur  bronght  this  ac- 
tion to  recoTer  damages  for  injuries  recelTed 
by  him  while  assisting  in  the  loading  of  poles 
upon  a  car  in  defendant's  assembling  yard. 
The  poles  were  loaded  onto  the  cars  by  means 
of  a  derrick.  "There  is  a  boom  hanging  over 
the  center  of  the  car  and  a  cable  running 
along  it  At  the  end  of  the  boom  is  fastened 
a  pulley,  in  which  the  cable  passed,  hanging 
down  from  the  side  of  the  car,  and  the  end  Is 
fastened  to  a  pair  of  tongs ;  the  other  end  of 
the  cable  being  fastened  to  the  wbifflctree  of 
the  horses.  It  was  my  duty  to  take  the 
tongs  and  hook  them  to  the  poles,  and  I 
would  give  the  word  to  the  teamster  to  go 
ahead  and  the  pole  would  go  to  the  top  of  the 
car,  which  was  a  flat  car.  The  pole  would 
go  up  to  12  feet  They  were  8  Inches  at  the 
top  end  and  16  to  18  at  the  butt  end.  I  would 
fasten  the  tongs  as  near  the  center  as  I  could 
Judge  to  balance  it"  On  the  afternoon  of 
February  29,  1908,  a  pole  which  plaintlir  had 
hooked  the  tongs  onto  fell  while  being  raised, 
and  caused  the  injury  complained  of.  The 
negligence  charged  is  that  the  defendant,  dis- 
regarding its  duty  to  furnish  a  suitable  and 
proper  pair  of  tongs,  fumisbed  blm  with 
tongs  that  were  unsulted  to  the  work,  in  that 
the  points  were  dull  and  would  not  hook  in- 
to and  properly  hold  the  poles ;  that  plaintlfF 
notified  defendant's  superintendent  of  the  de- 
fective condition  of  the  tongs,  and  continued 
his  work  upon  defendant's  promise  to  repair 
them  or  furnish  a  new  pair.  The  court  di- 
rected a  verdict  for  defendant,  on  the  ground 
that  plaintiff  assumed  the  risk  of  using  so 
simple  a  tool  as  the  tongs,  and  was  also 
guilty  of  contributory  negligence.  "It  Is  a 
simple  contrivance.  I  do  not  think  there 
was  any  duty  with  so  simple  a  contrivance  as 
this  on  the  master  to  inspect  them  to  see  that 
their  condition  was  proper.  And  it  does  not 
appear  from  the  testimony  in  this  case — 
which  I  have  scrutinized  pretty  closely — ^that 
there  was  any  promise  to  repair,  or  anything 
equivalent  to  a  promise  to  repair.  It  is  rath- 
er the  opposite  of  that  The  master  didn't 
say  he  would  repair.  The  plaintiff  claims  he 
said,  'No,'  they  didn't  have  time  to  repair 
it,  to  go  ahead  and  use  this  tool  until  they 
could  get  it  sharpened,  or  get  another  pair. 
I  do  not  believe  this  is  equivalent  to  a  prom- 
ise to  repair  which  would  naturally  have 
misled  the  plaintiff.  But  I  think  when  ha 
continued  to  use  that  tool,  knowing  its  con- 
dition, so  apparent  and  simple  as  it  was,  that 
he  was  guilty  of  contributory  negligence,  and 
that  he  also  assumed  the  risk." 


•ror  other  caMS  sM  uini*  tople  ana  uctlon  NUMBER  la  Dao.  *  Am.  Digs.  1M7  to  data.  *  Reportw  Xadaaa 


Digitized  by  VjOOQ  l€ 


Mich.) 


BBOUSEAU  ▼.  KELLOGG  SWITCHBOARD  &  SUPPLY  CO. 


621 


Plaintiff  brings  the  record  to  this  court  for 
review  upon  writ  of  error.  He  testified, 
among  other  things,  as  follows:  "In  the  aft- 
ernoon we  started  loading  smaller  poles.  We 
did  not  use  the  same  pair  of  tongs  that  we 
used  In  the  morning.  I  went  and  got  them 
on  the  gondola  car  on  the  northwestern  spur, 
where  we  had  been  loading  the  day  before. 

*  *  *  I  had  used  them  aboat  a  half  an 
hour  on  the  morning  of  the  28th  loading 
shingle  bolts.  I  had  some  trouble  with  the 
tongs  at  that  time.  They  slipped  from  the 
shingle  bolts.  They  were  dull.  At  noon  on 
the  2dtb  I  had  a  talk  with  Mr.  Enfield  re- 
garding these  tongs.  Well,  when  I  went  and 
got  the  tongs,  I  was  sent  for  the  tongs,  and  I 
brought  them  back,  and  I  told  him  these 
tongs  were  as  dull  as  the  ones  we  had  been 
decking  ties  with  when  we  started  to  load 
shingle  bolts  on  the  morning  of  the  28th. 

•  •  •  He  told  me  they  were  not  any  dull- 
er. They  were  no  worse.  I  asked  him  if  he 
could  have  them  sharpened.  He  says,  'No; 
we  haven't  any  time.'  •  •  •  Mr.  Enfield 
replied  to  me  that  he  dldnt  have  time  to 
sharpen  the  tongs  then.  He  told  me  to  go 
ahead  and  use  them  until  he  conid  have  them 
sharpened,  or  get  another  pair.  That  was 
about  1  o'clock,  and  I  worked  with  the  tongs 
until  3  o'clock,  wh^n  I  was  hurt  •  •  • 
Several  of  them  had  slipped  owing  to  the 
tongs  being  dull;  and,  when  sending  up  a 
I>oIe,  I  generally  watched  it  until  the  man  on 
the  car  got  his  hand  on  it  Then  I  would 
turn  and  get  another  one  ready  to  send  up. 
I  did  so  in  this  case,  and  turned  around  to 
get  another  pole  to  send  up,  and,  without  any 
warning  at  all,  a  pole  came  down  and  hit  me 
on  the  ankle,  and  knocked  me  down.  It 
struck  me  on  the  left  foot  about  8  o'clock  in 
the  afternoon.  I  did  not  see  the  pole  com- 
ing. I  was  getting  another  pole  'to  send  up. 
I  did  not  know  where  the  pole  was  at  the 
time  it  fell.  It  was  in  the  air.  It  was  part 
of  my  duty  to  get  another  pole  ready.  The 
pole  was  in  Ole  Lund's  hand  on  the  top  of 
the  car  at  the  time  it  slipped.  •  ♦  *  The 
top  of  the  poles  that  were  being  loaded  was 
about  nine  feet  from  the  ground.  There  was 
about  three  feet  space  in  the  immediate  vicin- 
ity where  I  was  working  that  I  could  move 
in.  The  rest  of  the  space  was  occupied  by 
IKiles  and  the  car.  •  •  *  The  tongs  were 
dull,  because  the  timber  slipped  with  them. 
I  had  seen  it  slip  before.  I  could  see  that 
they  were  dull.  I  had  had  experience  enough 
loading  poles  to  tell  whether  they  were  dull 
or  whether  they  were  sharp.  *  *  •  I  had 
seen  the  same  shingle  bolt  slip  four  or  five 
times  from  these  tongs.  It  would  slip  out 
of  the  tonjgs.  The  shingle  bolts  were  all  the 
way  from  eight  to  about  sixteen  inches. 
About  four  or  five  poles  had  slipped  out  of 
the  tongs  before  the  one  that  struck  me. 
These  had  slipped  out  that  afternoon  between 
1  and  3  o'clock.  We  would  have  to  have  the 
horse  ba(^  up  and  hitch  on  again,  put  the 
tongs  on  again.    The  same  pole  slipped  more 


than  once.  One  pole  slipped  twice,  as  I  re- 
member. *  *  *  It  was  necessary  for  me 
to  stand  under  the  pole  when  I  got  another 
one  ready,  after  the  one  had  gone  up.  There 
was  three  feet  of  space  that  I  could  move  in. 
It  was  necessary  for  me  to  stand  under  the 
pole,  because  there  wasn't  room  for  me  to  get 
away.  I  couldn't  back  up.  I  could  go  to- 
wards the  end  of  the  car.  I  could  have  gone 
toward  either  end  of  the  car.  •  •  •  I 
could  not  have  performed  my  duty  in  any 
other  way  tlian  I  did  without  delaying  it 
If  I  had  stepped  to  the  south,  I  would  still 
be  under  the  pole,  unless  I  crawled  under  the 
car.  I  could  not  have  gotten  another  pole 
ready  and  performed  my  duty  if  I  had  step- 
ped to  the  side  as  Mr.  Eastman  suggested.  I 
would  have  to  keep  the  whole  crew  waiting." 
The  principle  of  assumed  risk  rests  upon  the 
ground  that  it  is  an  implied  contract  between 
the  employer  and  the  employ^  that  the  em- 
ploye shall  assume  the  risk  Of  all  dangers 
obviously  incident  to  his  employment,  and  is 
independent  of  the  negligence  of  the  employ- 
er or  the  contributory  negligence  of  the  em- 
ploye. Bradbum  v.  Wabash  R.  Co.,  134  Mich. 
575,  96  N.  W.  929;  Swick  v.  jBtna  Portiand' 
Cement  Co.,  147  Mich.  454,  111  N.  W.  110; 
Sipes  V.  SUrch  Co.,  137  Mich.  258,  100  N. 
W.  447.  If  the  employe,  after  notifying  the 
employer  of  a  dangerous  defect  is  induced 
to  continue  his  work  by  the  employer's  prom- 
ise to  remove  the  defect,  his  implied  contract 
to  assume  the  risk  of  such  defect  is  suspend- 
ed for  a  reasonable  time,  and  the  employer 
impliedly  contracts  to  assume  the  risk  of  In- 
Jury  therefrom  himself.  Regarding  the  em- 
ployer's promise  to  repair  as  a  temporary 
assumption  of  the  risk  on  bis  part,  it  appears 
to  us  illogical  to  hold  that  the  employe  is  no 
longer  charged  with  the  obvious  risks  of  a 
complicated  machine,  but  still  assumes  the 
obvious  risks  of  a  simple  Implement  We 
deem  it  more  in  accordance  with  the  prin- 
ciple upon  which  the  doctrine  of  assumed 
risk  rests  in  this  state  to  hold  that  It  ap- 
plies alike  to  ^simple  tools  and  complicated 
machinery.  See  1  Labatt  Master  &  Servant, 
pp.  1223,  1224 ;  LoulBvllle  Hotel  Co.  v.  Kalt- 
enbrun  (Ky.)  80  S.  W.  1163 ;  Roux  v.  Lumber 
Co.,  85  Mich.  510,  48  N.  W.  1092,  13  L.  R.  A. 
728,  24  Am.  St  Rep.  102;  Lyttle  v.  Railway 
Co.,  84  Mich.  289,  47  N.  W.  571;  Brown  v. 
Lennane,  155  Mich.  686,  118  N.  W.  581. 

We  do  not  think  it  should  be  held  as  a 
matter  of  law  that  the  directions  of  the 
master's  representative  did  not  amount  to  a 
promise  to  repair  upon  which  the  plaintiff 
had  a  right  to  rely.  Neither  can  it  be  af- 
firmed as  a  matter  of  law  that  plaintiff  was 
guilty  of  contributory  negligence  without  en- 
tirely depriving  him  of  the  protection  af- 
forded by  the  master's  temporary  assumption 
of  the  risk.  It  Is  clear  that,  if  the  mere  use 
of  the  dull  tongs  under  the  surrounding  cir- 
cumstances of  peril  constituted  contributory 
negligence,  the  rule  absolving  plaintiff  from 
the  assumption  of  the  risk  which  his  employ- 


Digitized  by  VjOOQ  l€ 


622 


122  NORTHWBSTBBM  BEFORTEB. 


(Micb. 


er  had  agreed  to  aamime  for  the  time  b^ng 
would  be  wholly  valueless,  since  the  rule 
only  applies  where  the  danger  is  not  so  Im- 
minent that  an  ordinarily  prudent  man  would 
not  assume  the  risk  itself.  Mann  t.  Lt.  S., 
etc.,  Ry.  Co.,  124  Mich.  641,  83  N.  W.  596. 
If  plaintiff  was  guilty  of  contributory  negll* 
gence,  therefore,  it  was  because  he  went  on 
using  the  dull  tonga  which  the  employer  re- 
quested him  to  continue  using.  According  to 
his  testimony,  he  used  them  with  proper  care 
in  reliance  upon  the  orders  and  promises  of 
his  employer.  The  plaintiff,  "it  may  reason- 
ably be  assumed,  would  to  some  extent  have 
his  fears  allayed  by  the  commands  of  a  mas- 
ter, whose  duty  It  would  be  not  to  send  him 
into  danger,  and  who  might  therefore  be  sup- 
posed to  know,  when  he  gave  the  command, 
that  the  dangers  were  not  such  or  so  great 
as  the  servant  had  apprehended.  •  •  •  • 
Moreover,  the  assurances  remove  all  ground 
for  the  argument  that  the  servant  by  contin- 
uing the  employment  engages  to  assume  its 
risks.  So  far  as  the  particular  peril  is  con- 
cerned, the  Implication  of  law  is  rebutted  by 
the  giving  and  accepting  of  the  assurance; 
for  nothing  is  plainer  or  more  reasonable 
than  that  parties  may  and  should  where 
practicable  come  to  an  nnderstanding  be- 
tween themselves  regarding  matters  of  this 
nature."  Cooley  on  Torts,  quoted  with  ap- 
proval in  Roux  T.  Lumber  Co.,  supra.  It  is 
difficult  to  believe  that  any  employer  would 
induce  an  employ^  to  continue  a  service 
which  he  believed  would  probably  result  in 
his  serious  injury.  It  is  obvious  that  the 
plaintiff  believed  that,  notwithstanding  the 
apparent  danger,  he  could  escape  injury  in 
continuing  his  work.  He  had  used  the  tongs 
without  injurious  results  from  their  slipping 
up  to  the  time  of  his  injury. 

Defendant's  witness  Lund  testified:  "These 
tongs  were  used  afterwards  in  the  same  kind 
of  business.  We  finished  the  car  after  he 
got  hurt.  We  did  not  stop  to  sharpen  them. 
We  kept  right  on  going.  •  •  •  After 
Brouseau  was  hurt,  I  think  it  was  Mr.  En- 
field himself  who  hooked  the  tongs  into  the 
ix>les,  if  I  am  not  mistaken."  That  no  poles 
slipped  afterwards.  Mr.  Enfield,  the  8ui)er- 
intendent,  testified:  "I  observed  the  other 
men  when  they  were  loading  the  car  to  see 
how  they  were  doing  their  work.  I  didn't  see 
any  poles  slip  on  the  tongs  while  Brouseau 
was  at  work  there.  After  Brouseau  was 
hurt,  they  may  have  been  used  off  and  on. 
We  didn't  load  many  poles.  Maybe  a  car  a 
mouth  or  so ;  perhaps  not  that.  I  mean  a  car 
load  a  month  about  since  he  was  hurt  These 
tongs  have  worked  in  the  meantime  satisfac- 
torily. There  has  not  been  any  slipping  of 
poles  or  accident  from  the  use  of  these  tongs 
that  I  know  of.  •  •  •  Since  the  accident 
I  have  not  been  looking  at  every  pole  that 
went  up,  but  In  a  general  way  I  have,  and  I 
would  say  that  there  has  been  no  slipping 
through  the  tongs.    These  tongs  have  never 


been  sharpened  since  we  have  bad  them  that 
I  know  of." 

In  the  light  of  the  testimony  as  to  the  re- 
sults attending  the  use  of  the  tongs  before 
and  after  the  plalntifTs  injuries,  I  do  not 
think  that  it  should  be  determined  as  a  mat- 
ter of  law  that  the  danger  was  so  imminent 
and  great  that  it  was  sheer  recklessness  on 
the  part  of  the  plaintiff  to  obey  the  directlonB 
of  his  employer,  relying  upon  his  assurances. 

The  judgment  is  reversed  and  a  new  trial 
granted. 

MONTGOMERT,  OSTRANDER,  HOOK- 
ER, and  MOORE,  JJ.,  concurred  with  the 
CHIEF  JUSTICE. 

BR00E2I,  X  (dissenting).  A  sufficient 
statement  of  the  facts  in  the  case  and  of  the 
circumstances  surronnding  the  plaintiff  at 
the  time  of  his  injury  is  found  in  the  opinion 
of  my  Brother  BLAIR. 

The  plaintiff's  testimony  shows  that  the 
tongs  were  of  the  greatest  simplicity,  and 
that  they  were  obviously  dull;  that  he  had 
used  them  the  day  before  he  was  hurt  load- 
ing shingle  bolts  when  they  frequently  slip- 
ped ;  that,  after  his  protest  to  the  master, 
he  continued  to  use  them  from  1  o'clock  un- 
til 8  o'clock,  when  he  wtls  Injured.  During 
this  Interval  fonr  or  five  poles  slipped  from 
the  tongs,  one  of  them  slipping  out  twice. 
Under  these  circumstances,  we  are  asked  to 
say  that  it  becomes  a  question  of  fact  for  the 
determination  of  the  jury  whether  or  not  the 
plaintiff  was  guilty  of  contributory  negligence 
in  continuing  to  use  the  defective  appliance. 
I  believe  that  the  plaintiff  should  be  held  to 
be  guilty  of  contributory  negligence  as  a  mat- 
ter of  law.  He  was  obliged  to  stand  in  a  nar- 
row space  between  the  car  and  the  pile  of 
poles  he  was  loading  with  scant  opportunity 
to  avoid  a  falling  pole  by  stepping  aside. 
Tet,  by  great  good  fortune,  he  had  escaped 
four  or  five  such  during  the  two  hours  pre- 
ceding the  accident  He  continued  to  use  the 
diiU  tongs,  and  was  injured.  Conceding  that 
the  promise  to  repair  was  made  by  the  master 
and  relied  upon  by  the  plaintiff,  it  is  not  true 
that  every  promise  to  r^air  by  the  master 
relieves  the  servant  from  the  assumption' of 
risk  or  from  the  effects  of  his  own  negli- 
gence. In  Hough  V.  Railway  Co.,  100  U.  S. 
215,  25  L.  Ed.  612,  the  court  laid  down  the 
rule  as  follows :  "If  the  nature  of  the  defect 
is  not  such  as  to  impress  a  prudent  man  with 
a  feeling  or  consciousness  of  Imminent  dan- 
ger, then  the  master  is  liable."  In  Mann  v. 
Lake  Shore,  etc.,  Railway  Co.,  124  Mich.  641, 
83  N.  W.  596,  this  court  said :  "Was  the  con- 
dition which  presented  Itself  to  pfaintlff  so 
obviously  a  dangerous  one  that  an  ordinarily 
prudent  man  would  not  even  in  reliance  on 
the  promise  of  defendant  to  r^air,  attempt 
what  he  attempted?  •  •  •  Nor  do  we 
think  we  should  bold  as  matter  of  law  that 
the  course  of  the  plaintiff  was  so  reckless  as 


Digitized  by  VjOOQ  l€ 


Mictg 


IN  BE  LOBEE'S  ESTATE. 


623 


to  prednde  him  from  asserting  a  reliance  on 
the  promise  to  repair.  The  new  machine  had 
not  been  set  in  motion  by  escaping  steam 
prior  to  the  time  of  the  accident,  and  the 
danger  was  not  so  obvious  that  we  can  char- 
acterize the  plaintiff's  attempt  to  tighten  the 
nut  as  reckless."  Again,  In  Wheaton  t.  Wag- 
ner Lake  Ice  «  Coal  Co.,  151  Mich.  100,  114 
N.  W.  853,  Mr.  Justice  Montgomery,  In  dla- 
cussiug  a  pair  of  Ice  tongs  (similar  In  con- 
struction to  those  in  the  case  at  bar),  said: 
"In  fact,  there  is  nothing  about  a  pair  of  ice 
tongs  that  would  seem  to  require  expert  tes- 
timony to  Instruct  either  a  court  or  Jury. 
Both  appeared  to  be  equally  sharp  at  the 
points.  The  Holland  tongs  curved  a  little 
less  sharply  than  the  Wheaton  tongs,  so  call- 
ed, and  it  resulted  that  they  would  not  grasp 
with  equal  efficiency  a  large  cake  of  ice.  In 
other  words,  the  capacity  of  these  tongs  to 
grasp  a  cake  of  Ice  was  limited.  But  it  was 
a  perfectly  obvious  limitation.  Any  one  us- 
ing such  a  tool  would  be  able  to  know  at  a 
glance  whether  a  sufficient  hold  had  been  se- 
cured upon  the  Ice  to  support  its  weight,  and 
any  insistence  on  making  use  of  the  tongs 
without  having  a  sufficient  hold  upon  the  ice 
to  support  the  weight  was  plainly  negligence." 
So  in  the  case  at  bar  the  fact  that  the  tongs 
would  not  grasp  the  poles  sufficiently  to  sus- 
tain their  weight  was  a  perfectly  obvious  one, 
and  one  too  which  had  received  many  illus- 
trations for  the  plaintUTs  benefit  before  his 
injury.  His  continued  insistence  in  making 
use  of  them  in  the  face  of  his  experience  was 
an  act  of  the  plainest  negligence.  See,  also, 
Illinois  Steel  Co.  v.  Mann,  ITO  111.  200,  48  N. 
K  417,  40  L.  R.  A  781,  62  Am.  St  Rep.  370, 
and  notes ;  Gunning  System  v.  Lapolnte,  212 
111.  274,  72  N.  E.  303. 
The  judgment  should  be  affirmed. 

GRANT    and    McALVAY,    JX,    concurred 
with  BBOOKE,  3. 


In  re  LOREE'S  ESTATE. 

IjOREB  v.   VEDDER  et  al. 

(Supreme  Coart  of  Michigan.     Oct.  4,   1909.) 

1.  Wnxa  (I  164*)— UwDUE  Influence— Evi- 
dence. 

Where  contestants  claimed  and  offered  to 
show  that  proponent  had  assumed  control  and 
mastery  over  testator's  mind,  and  for  more  than 
six  years  before  the  execution  of  the  will  hod 
used  extreme  personal  violence  toward  him,  and 
since  that  time  had  controlled  and  dominated 
him,  the  court  erred  in  excluding  evidence  oF 
facts  occnrring  more  than  six  years  before  the 
will  waa  executed,  offered  to  show  undue  influ- 
ence, on  the  ground  that  it  was  too  remote. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  8  412;    Dec  Dig.  §  164.*] 

2.  Wnxs  (I  164*)— TJndub  Inflxtencb— Evi- 
dence. 

On  an  issue  of  undue  influence  in  the  mak- 
ing of  a  will,  evidence  to  show  when  propcment's 
alleged  domination  of  testator  began,  and  of  its 
continuance  up  to  and  including  the  time  the 


will  and  codicil  were  executed,   was   relevant 
and  material. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  I  412;   Dec.  Dig.  i  164.*] 

3.  Wuxs  (J  293*)— Contest— FoBMEB  Wiix— 
Evidence. 

Where  an  attorney,  called  by  proponent  to 
establish  a  will,  testified  that  it  was  copied 
from  a  former  will,  which  he  had  drawn,  with 
but  two  changes,  the  contents  of  the  former  will 
were  admissible. 

[Ed.  Note.— Fcg:  other  cases,  see  Wills,  Cent. 
Dig.  i  676 ;   Dec  Dig.  |  293.*] 

4.  Witnesses  (|   202*)— Attornet  and  (3i.i- 
BNT— Communication   by   Testatob. 

Communications  between  attorney  and  cli- 
ent during  the  preparation  of  a  will  are  not 
privileged,  but  are  admissible  in  a  contest,  espe- 
cially when  between  parties  not  strangers  to  the 
estate. 

[liid.  Note.— For  other  cases,  see  Witnesses, 
Cent  Dig.  §  756 ;  Dec  Dig.  i  202.*] 

5.  Wills  (|  164*)— Contest— Undue  Influ- 
ence—Declasationb  BY  Pboponent. 

In  a  will  contest  on  the  ground  of  alleged 
undue  influence  by  proponent  over  testator, 
statements  by  proponent  as  to  what  disposition 
of  the  property  in  regard  to  children  or  grand- 
children would  be  made  by  testator  were  not  ob- 
jectionable either  because  such  declarations 
were  not  shown  to  have  been  made  in  testator's 
presence,  or  because  proponent  had  not  been  at 
the  time  connected  with  the  case. 

[EM.  Note.— For  other  cases,  see  Wills,  C!ent 
Dig.  S  410 ;   Dec.  Dig.  i  164.*] 

6.  Wills  (5I  164,  165*)— Contest-Undue  In- 
fluence—Evidence. 

In  a  will  contest  on  the  ground  of  undue 
influence,  conversations  and  statements  by  tes- 
tator or  by  proponent  to  others,  or  to  each  oth- 
er, in  the  presence  of  others,  are  admissible. 

[Ed.  Note, — For  other  cases,  see  Wills,  Cent. 
Dig.  S!  410,  416 ;   Dec  Dig.  {i  164,  165.*] 

7.  Wills    (8   288*)  — Contest— Bubden    of 
Pkoof. 

The  burden  of  proof  in  a  will  contest  is  on 
the  contestant. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  §  651 ;   Dec.  Dig.  §  288.*] 

8.  Wills  (|  316*)— Contest— Undue  Influ- 
ence—Question FOB  JUBY. 

In  a  will  contest,  evidence  of  undue  influ- 
ence by  proponent  operating  to  deprive  con- 
testants, testator's  grandchildren,  of  the  share 
he  otherwise  intended  to  give  them,  held  for  the 
jury. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  §  745 ;   Dec.  Dig.  §  316.*] 

Error  to  Circuit  Court,  Livingston  (bounty; 
Selden  S.  Miner,  Judge. 

Proceedings  by  Catherine  Loree  for  the 
probate  of  the  will  of  Joseph  Loree,  deceas- 
ed, in  which  Alma  Vedder  and  another  fil- 
ed objections.  From  a  decree  admitting  the 
will  to  probate,  objectors  bring  error.  Re- 
versed, and  new  trial  ordered. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  McALVAY,  and  BROOKE, 
JJ. 

Louis  B.  Hewlett  and  Edmund  C.  Shields, 
for  appellants.  William  P.  Van  Winkle,  for 
appellee. 

McALVAY,  J.  Contestants  and  appel- 
lants are  the  granddaughters  of  deceased,  be- 


•For  othOT  cuMs  M«  um*  toplo  and  Mcttoa  NUMBER  lo  Dec.  ft  Am.  Diss.  1907  to  data.  A  Reporter  IndexM 

Digitized  by  LjOOQ  l€ 


624 


122  NORTHWESTERN  REPORTER. 


(MlclL 


Ing  children  of  his  deceased  daughter,  Mrs. 
Nettie  Wooden.  From  the  allowance  of  a  will 
to  probate  by  the  probate  conrt  of  Livingston 
county  two  appeals  were  taken  to  the  circuit 
court  of  said  county— one  by  the  contestants 
above  named,  the  other  by  two  daughters  of 
deceased.  These  appeals  by  consent  of  the  par- 
ties and  an  order  of  the  court  were  combin- 
ed at  the  trial,  and  tried  as  one  case  before 
the  court  and  a  jury.  The  contest  of  the 
will  was  made  upon  several  grounds;  but 
only  one  relied  upon,  namely,  the  alleged 
undue  influence  which  was  claimed  to  have 
been  exercised  over  the  testator  by  his  wife. 
At  the  close  of  the  case  the  court  instructed 
the  Jury  to  return,  a  verdict  for  proponents, 
and  a  Judgment  was  duly  entered  thereon 
sustaining  the  will.  From  this  Judgment 
all  the  contestants  Joined  in  removing  the 
case  to  this  court  by  writ  of  error. 

The  testator,  Joseph  Loree,  was  79  years  of 
age  at  the  time  of  his  death,  on  March  2, 
1908.  He  left  surviving  him,  his  widow, 
who  was  12  years  younger  than  he,  three 
daughters,  two  fiops.  and  two  granddaugh- 
ters, who  are  the  principal  contestants.  The 
testator's  estate  consisted  of  about  1,000 
acres  of  farming  lands,  and  personal  proper- 
ty, all  of  the  claimed  value  of  $75,000.  An 
Instrument  bearing  date  August  17,  1903, 
as  modified  by  a  codicil  attached,  bearing 
date  July  80,  1906,  was  offered  for  probate 
by  the  widow,  Catherine  Loree,  proponent, 
as  the  last  will  and  testament  of- Joseph 
Loree.  The  record  of  the  trial  upon  the  con- 
test of  this  will  shows  that  the  testator,  al- 
though coarse  and  rough,  was  a  man  of 
ability  and  shrewdness  in  business  mat- 
ters. He  was  addicted  to  the  use  of  intoxica- 
ting liquors,  and  often  became  intoxicated. 
He  had  been  admitted  to  the  bar  of  Liv- 
ingston county,  and  had  tried  some  Justice 
court  cases.  He  was  a  kind  man,  and  affec- 
tionate toward  his  family.  During  the  last 
10  or  12  years  of  bis  life  he  became  weak 
physically,  and  did  no  labor.  His  mind  was 
somewhat  weakened,  and,  on  account  of  his 
condition,  he  required  care  and  attention 
from  members  of  the  family.  His  wife,  the 
proponent,  was  a  woman  of  strong  individu- 
ality. She  was  a  good  business  woman, 
strong  willed,  and  domineering.  The  de- 
ceased often  consulted  her  In  business  trans- 
actions, and  deferred  to  her  Judgment  She 
retained  the  full  vigor  of  her  mind  and  body 
during  bis  lifetime,  taking  care  of  him  and 
doing  all  of  the  housework  without  assist- 
ance. In  the  year  1899  the  mother  of  con- 
testants, who  at  the  time  were  of  the  ages 
of  16  and  13  years,  respectively,  left  her 
husband  and  began  proceedings  for  a  divorce 
on  the  ground  of  extreme  cruelty.  On  hear- 
ing in  this  divorce  case  in  May,  1900,  these 
two  children  were  produced  In  court  as 
witnesses  by  the  father,  and  gave  testimony 
favorable  to  him.  There  is  no  dispute  but 
that  this  circumstance  greatly  angered  the 
proponent    She  always  insisted  In  the  pres- 


ence of  the  testator  and  others  that  ttuj 
had  committed  i>erjury.  That  the  girls  tes- 
tified trutlifully  Is  established  by  this  rec- 
ord, and  is  not  contradicted. 

In  support  of  their  claim  that  the  will  was 
procured  by  undue.  Influence  exercised  over 
testator  by  Catherine  E.  Loree,  his  wife,  pro- 
ponents produced  evidence  to  show  her  hos- 
tility toward  them,  which  was  introduced 
as  tending  to  establish  the  following  facts: 
The  mother  of  contestants  died  within  a 
week  after  her  divorce  was  granted.  At  the 
time  she  was  dying  the  question  as  to 
whether  the  two  daughters  should  be  sent 
for  was  discussed.  The  grandfather  asked 
to  have  it  done,  but  the  grandmother  de- 
clared they  must  not  come.  An  unde  pro- 
tested that  such  conduct  would  be  a  disgrace 
and  went  after  them.  The  grandmother 
would  not  allow  the  daughters  to  place  a 
wreath  upon  their  mother's  coflBn.  She  re- 
quested the  minister  who  officiated  at  the 
funeral  to  speak  disparagingly  of  these 
girls,  and  insisted  that  they  must  not  appear 
as  chief  mourners.  The  reason  she  gave  for 
this  conduct  was  because  the  girls  had  been 
witnesses  for  their  father,  and  had  testi- 
fied falsely.  There  is  evidence  in  the  record' 
tending  to  show  that  she  for  the  same  reason 
expressed  a  determination  to '  prevent  the 
girls  from  getting  anything  left  by  their 
mother.  It  also  appears  soon  after  the 
death  of  her  daughter  that  she  said  in  the 
presence  of  the  testator  that,  on  account  of 
the  girls'  testimony,  there  would  be  a  new 
will,  and  they  would  be  cut  off.  The  instru- 
ment offered  for  probate  was  executed  August 
17,  1903.  It  appears  that  it  was  similar  to 
a  former  will  executed  June  21,  1900,  with 
the  exception  of  two  changes.  In  this  wUl 
contestants  Alma  and  Elvira  were  given 
40  acres  in  fee  and  $500  in  cash  to  share  the 
same  equally.  The  codicil  revoked  the  devise 
of  the  fee  to  them  in  the  land,  and  made  it 
a  life  -estate. 

Evidence  was  also  introduced  for  the  pur- 
pose of  showing  the  expressed  intention  of 
testator  to  divide  his  property  by  will  equally 
among  his  children,  and  that  he  intended  to 
give  these  two  contestants  a  certain  farm 
of  100  acres,  and  also,  after  the  will  was 
made,  that  it  was  not  according  to  his  wish- 
es; also,  that  during  his  last  sickness  be  ex- 
pressed a  wish  to  change  it  but  proponent 
objected,  saying  he  was  too  sick,  and  it  was 
then  too  late. 

On  behalf  of  proponent  no  witnesses  were 
offered  except  to  make  a  prima  facie  case 
to  admit  the  will  to  probate.  Proponent  was 
not  produced  as  a  witness,  nor  was  evidence 
offered  on  her  behalf  contradicting  the  proofs 
of  contestants.  The  case  is  somewhat  un- 
usual. In  that  the  undue  influence  claimed 
was  not  exercised  in  favor  of  proponent  her- 
self, but  against  these  contestants. 

Upon  the  trial  contestants  to  show  undue 
Influence  were  not  permitted  to  Introduce 
evidence  of  facts  which  occurred  more  than 


Digitized  by  VjOOQ  l€ 


ICIcb.) 


IN  BE  LOREE'S  ESTATE. 


626 


«ix  yean  before  tbls  will  was  executed,  on 
the  ground  that  It  was  too  remote.  Eleven 
of  the  assignments  of  error  are  based  upon 
this  ruling  of  the  court  Contestants  claim- 
ed and  offered  to  show  that  proponent  had 
assumed  control  and  mastery  over  testator's 
mind;  that  she  had  more  than  six  years  be- 
fore the  execution  of  this  will  used  extreme 
personal  violence  towards  him,  and  from 
that  time  bad  controlled  and  dominated 
him.  In  Beaubien  v.  Cicotte,  12  Mich.  488, 
the  court  eald:  "In  all  cases  of  this  char- 
acter it  has  been  customary  as  the  reports 
show  to  allow  a  wide  range  of  inquiry  into 
family  relations  and  the  terms  upon  which 
they  lived.  It  would  be  impossible  to  ob- 
tain a  dear  idea  concerning  motives  and 
probabilities  without  These  cases,  as  be- 
fore intimated,  are  determined  generally 
upon  circumstantial  evidence;  and  it  must 
be  received  upon  all  points  tending  to  throw 
light  upon  the  various  family  relations." 
No  good  reason  is  apparent  why  proof  of  the 
relations  of  these  parties  relative  to  the 
dominance  of  proponent  over  testator  should 
be  arbitrarily  limited  to  the  term  of  six 
years.  To  show  w^en  this  began  and  its 
continuance  up  to  and  including  the  time 
of  the  execution  of  the  will  and  codicil  was 
material  and  relevant  to  the  issue  as  a  part 
of  the  evidence  necessary  to  establish  undue 
Influence.  The  testator  for  several  years 
bad  given  up  physical  labor,'  and  had  grown 
gradually  weaker.  The  wife  was  vigorous, 
and  the  claim  made  was  that  for  a  series  of 
years  she  had  dominated  him,  and  had  ex- 
ercised undue  Influence  in  procuring  this 
will.  It  was  a  question  of  fact  whether  this 
was  true  or  not,  which  could  only  be  deter- 
mined upon  all  the  material  evidence  which 
could  be  produced.  Potter's  Appeal,  63  Mich. 
112,  18  N.  W.  876;  Rlvard  v.  Rlvard,  100 
Mich.  110,  111,  66  N.  W.  681,  63  Am.  St  Rep. 
666.  See,  also,  Waters  v.  Reed,  129  Mich. 
135,  136,  88  N.  W.  394.  The  court  was  in 
error  in  excluding  such  evidence. 

The  court  on  cross-examination  of  the  at- 
torney who  drew  the  will  excluded  and 
struck  out  all  testimony  relative  to  a  former 
will  drawn  by  him  and  executed  by  the  tes- 
tator, on  the  ground  that,  by  reason  of  the 
relation  of  attorney  and  client,  communica- 
tions between  the  witness  and  testator  were 
privileged.  On  direct  examination  this  wit- 
ness, who  was  called  by  proponent  to  estab- 
lish this  wUl,  had  testified  that  the  will 
sought  to  be  probated  was  copied  from  a 
former  will,  which  he  had  drawn  with  but 
two  changes.  The  contents  of  this  former 
will  and  the  statements  of  the  testator  made 
at  the  time  it  was  being  considered  were 
material  to  the  case.  Relative  to  the  mate- 
riality of  the  contents  of  a  former  will,  this 
court  has  said  in  Beaubien  v.  Cicotte,  supra : 
The  former  wUls,  and  other  pecuniary  ar- 
rangements for  Mrs.  Beaubien  connected, 
with  them,  were  properly  received  in  evi- 
dence. It  Is  true,  of  course,  that  making  of 
122  N.W.— 40 


one  will  does  not  of  itself  render  It  at  all  un- 
likely that  another  will  may  be  substituted; 
but  previous  preferences  and  plans  may  have 
a  plain  bearing  upon  the  issue  where  the 
question  arises  whether  the  testator  has  un- 
derstandlngly  and  of  his  own  free  will  chang- 
ed his  views.  No  case  has  been  cited  hold- 
ing such  proofs  inadmissible.  It  Is  of  very 
frequent  occurrence  In  the  cases  reported." 
The  court  refused  to  allow  the  attorney  to 
testify  at  all  concerning  the  former  will. 
The  great  weight  of  the  authorities  and  the 
text-writers  Is  that  communications  between 
actomey  and  client  during  the  preparation 
of  a  will  are  not  privileged.  This  rule  where 
the  contest  Is  between  parties  not  strangers 
to  the  estate  appears  to  be  universal,  except 
where  a  statute  controls.  Re  Young,  17  L.  R. 
A.  (N.  S.)  108,  and  notes  (33  Utah.  382,  94 
Pac.  731,  126  Am.  St  Rep.  843).  The  court 
was  in  error  In  excluding  this  evidence. 

The  court  also  refused  to  allow  this  wit- 
ness to  testify  to  statements  made  by  Mrs. 
Loree  relative  to  what  disposition  of  the 
property  in  regard  to  children  or  grandchil- 
dren would  be  made  by  the  testator,  unless 
they  appeared  to  have  been  made  in  her  bus- 
band's  presence,  or  she  bad  been  connected 
with  the  case.  The  first  ground  is  not  ten- 
able, and  the  second  weut  merely  to  the  or- 
der of  proof,  to  which  no  objection  had  been 
made.  In  Re  Young,  supra,  it  is  held  that 
the  attorney  could  testify  as  to  statements 
made  by  the  wife  who  is  present  and  takes 
part  In  conversations  with  respect  to  a  pro- 
posed win.  Statements  made  by  her  at  oth- 
er times,  whether  In  testator's  presence  or 
absence,  were  material  upon  the  question  of 
undue  influence  and  her  attitude  towards 
these  contestants.  The  witness  should  have 
been  permitted  to  answer  them.  As  to  other 
errors  assigned  upon  the  exclusion  of  evi- 
dence we  need  say  but  little.  We  liave,  we 
hope,  clearly  indicated  that  all  evidence 
which  tends  to  prove  or  disprove  the  main 
contention  that  tbls  will  was  procured  by 
the  undue  influence  of  Mrs.  Loree  should  be 
admitted.  This  Includes  conversations  and 
statements  made  by  testator  or  his  wife  to 
others,  or  to  each  other  In  the  presence  of 
others.  We  do  not  consider  that  the  quar- 
rels with  the  sons  appear  to  be  material  in 
this  case,  as  It  is  narrowed  to  one  proposi- 
tion, which  does  not  require  restatement 

The  remaining  question  relates  to  the  ver^ 
diet  instructed  for  the  proponent  The  ver- 
dict was  so  directed  because  in  the  opinion 
of  the  court  no  evidence  of  undue  influence 
had  been  produced.  A  consideration  of  all 
of  the  evidence  in  the  case  does  not  support 
the  conclusion  of  the  court  An  analysis  of 
the  cases  discloses  that  in  contesting  a  will 
on  account  of  undue  influence  the  burden  of 
proof  Is  always  upon  the  contestant  The 
case  must  be  determined  generally  upon  cir- 
cumstantial evidence.  This  Is  necessarily  so 
by  reason  of  the  secret  and  Insidious  means 
by  which  such  Influence  is  usually  exercised. 


Digitized  by 


L-oogle 


626 


122  NORTHWESTERN  REFORTTER. 


OOeh. 


Rlvard  t.  Rlvard,  109  Mich.  Ill,  66  N.  W. 
681,  63  Am.  St  Rep.  666;  Walts  t.  Walts, 
127  Mich.  611,  86  N.  W.  1030;  Waters  v. 
Reed,  129  Mich.  136,  88  N.  W.  394;  Wilson  v. 
Parker,  130  Mich.  641,  90  N.  W.  682.  In 
Walts  T.  Walts,  supra,  where  all  the  testi- 
mony as  to  undue  Influence  was  taken  from 
the  consideration  of  the  Jury,  the  court,  aft- 
er giving  a  brief  outline  of  this  testimony, 
said:  "All  this  testimony  was  subject  to 
explanation,  •  •  •  but  It  was  admis- 
sible, and  was  for  the  Jury  to  weigh."  And 
further:  "There  was  also  testimony  of  ad- 
missions by  Mrs.  Peter  Walts  that  she  had 
tried  to  prejudice  deceased  against  his  son 
William.  There  was  testimony  of  statements 
of  deceased  prior  to  the  making  of  the  will 
showing  his  state  of  mind,  and  Indicating 
that  efforts  were  being  made  to  influence 
him.  These  facts  and  circumstances,  when 
taken  in  connection  with  testimony  showing 
the  weakened  condition  of  decedent,  are 
sufficient  to  carry  the  case  to  the  Jury  upon 
the  question  of  undue  Influence."  The  evi- 
dence in  this  case  In  certain  particulars  is 
very  similar  to  that  In  the  case  at  bar,  and 
we  also  have  in  the  case  under  considera- 
tion substantive  proof  tending  to  show  the 
attempt  to  exercise  undue  Influence. 

Counsel  for  proponent  put  great  reliance 
upon  cases  where  the  courts  have  held  that 
the  wife  may  exercise  certain  Influence  over 
the  husband  in  the  matter  of  the  disposition 
of  his  property,  even  to  the  point  of  argu- 
ment and  persistent  urging.  An  examination 
of  such  cases  disclose  that  the  Influence  ex- 
ercised was  from  a  proper  motive,  and  with 
a  proper  purpose.  We  are  referred  to  no 
case  like  the  case  at  bar,  and  we  are  nnable 
to  find  any  such  case  where  the  motive  was 
a  revengeful  one,  and  the  purpose  to  wrong- 
fully Injure  those  who.  In  fact,  were  Inno- 
cent of  any  wrongdoing.  The  weight  to  be 
given  to  the  evidence  in  the  case  Is  for  the 
Jury  to  determine,  and  this  court  expresses 
no  opinion  upon  Its  probative  value.  We 
simply  determine  that  the  case  should  have 
been  submitted  to  the  Jury  under  proper  In- 
structions. 

The  Judgment  is  reversed,  and  a  new  trial 
ordered. 


BIRDSALL  V.   SMITH  et  aL 
(Sapreme  Conrt  of  Michigan.     Oct.  4,  1009.) 

1.  Mamcioub  ruosEcunoN   (8   71*)— Pboba- 
B1.1!  Causb— Question  fob  Court. 

Where,  in  an  action  for  malicioas  prosecn- 
tion,  there  is  no  conflict  on  the  issue  of  proba- 
ble cause,  it  is  a  qaestion  for  the  court. 

[Ed.    Note. — For   other   cases,   sec    Malicious 
Prosecution,  Cent  Dig.  |  161 ;  Dec  Dig.  i  TL*] 

2.  Malicious  Pbosecutiow   (|  18*)— Pboba- 
BiiE  Causk. 

Where  a  ^rson,  by  direction  of  the  dairy 
and  food  commissioner,  went  to  a  city  and  made 
complaint  against  a  vendor  of  milk,  based  upon 


a  certificate  of  an  analysis  of  a  certain  quantitr 
of  milk  sold  by  him  showing  it  to  be  adulterated, 
there  was  probable  cause  for  the  prosecution ; 
such  a  certificate,  in  the  absence  of  information 
or  belief  to  the  contrary,  justifying  an  officer 
in  making  a  complaint,  in  view  of  Comp.  Laws 
1897,  I  11,424,  making  the  certificate  prima  fa- 
cie evidence  of  adulteration,  and  Pub.  Acts  1899, 
p.  455,  No.  268,  |  1,  requiring  the  daily  and 
rood  commissioner  to  analyze  dairy  and  food 
products. 

[Ed.  Note.— For  other  cases,  see  Malicious 
Prosecution,  Cent  Dig.  ||  23,  24,  29-38;  Dec 
Dig.  {  la*] 

3.  Statutes  (|  63*)— Ihvaliditt— Effect. 

As  ever^  statute  la  to  be  considered  valid 
until  there  u  a  Judicial  determination  to  the 
contrary,  a  person  making  complaint  under  a 
statute  may  act  upon  that  assumption  and  if 
the  law  be  declared  invalid  it  will  not  affect  the 
question  of  probable  cause  for  making  the  com- 
plaint 

[£M.  Note. — For  other  cases,  see  Statutes,  Dec. 
Dig.  I  63;*  Constitutional  Law,  Cent  Dig.  S 
47.] 

4.  Malicious  Pbosecution  (J  65*)— Acnow — 
Plkadiro — Genesax.  Issue— Defenses  Un- 

DEB. 

As  the  general  Issue  is  a  denial  of  all  thin^ 
that  a  plaintiff  must  establish  to  maintain  his 
action,  pleas  of  the  general  issue  without  no- 
tice of  defenses,  in  an  action  for  malicious  pros- 
ecution, will  support  proof  to  contravene  the 
allegation  of  want  of  probable  cause. 

[Ed.  Note. — For  other  cases,  see  Malicious 
Prosecution,  Cent  Dig.  1 110;  Dec  Dig.  {  65.*] 

Error  to  Circuit  Court,  Kent  County;  Wil- 
lis B.  Perkins,  Judge. 

Action  by  Martin  P.  Blrdsall  against  Eldon 
Smith  and  others.  Judgment  for  defendants, 
and  plaintiff  brings  error.    Affirmed. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Elvln  Swartbout  (Clapperton  &  Owm,  of 
counsel),  for  appellant  John  E.  Bird,  Atty. 
Oen.,  Thomas  A.  Lawler,  Asst  Atty.  Gen., 
Moses  Taggart  City  Atty.,  and  R.  M.  Fer- 
guson, Asst  City  Atty.,  for  appellees. 


HOOKER,  J.  The  plalntUt,  a  vendor  of 
milk,  was  prosecuted  upon  the  complaint  of 
defendant  Howe  for  selling  adulterated  milk. 
Being  acquitted  upon  a  trial,  he  brought  this 
action  for  malicious  prosecution  against 
Howe  and  two  other  defendants.  The  learn- 
ed circuit  Judge  directed  a  verdict  for  de- 
fendants upon  the  grounds:  (1)  That  the 
plaintiff  had  failed  to  prove  a  want  of  prob- 
able cause  for  the  complaint;  (2)  that  there 
was  no  evidence  tending  to  show  a  consplracx 
between  the  defendants  to  wrongfully  prose- 
cute; (8)  that  there  being  no  proof  of  a 
want  of  probable  cause,  the  question  of  de- 
fendant's motives  was  unimportant  De- 
fendant Howe  was  employed  In  the  office  of 
the  dairy  and  food  commissioner  at  Lansing, 
the  other  defendants  were  local  food  In- 
spectors acting  under  appointment  by  tbe 
Commissioner.  Howe  had  no  acquaintance 
with  either  of  the  other  defendants.  His 
connection  with  the  case  began  with  a  dlrec- 


•For  otlier  mm*  sm  samateplo  and  swtton  KDUBER  la  Dw.  *  Am.  Dies-  UOT  to  date,  *  Reporter  Induw 


Digitized  by  VjOOQ  l€ 


MldL) 


BIBDSALIi  T.  BMITH. 


627 


tlon  from  the  dairy  and  food  commissioner 
to  go  to  Grand  Rapids  and  make  a  com- 
plaint against  defendant,  based  upon  a  re- 
port of  an  analysis  of  a  certain  quantity  of 
milk  sold  by  the  plaintiff,  and  stated  in  the 
report  as  contained  in  half-pint  bottle,  which 
said  report,  made  by  the  state  analyst,  show- 
ed to  be  adulterated.  His  action  in  the  mat- 
ter ended  by  bis  drawing,  subscribing,  and 
swearing  to  the  complaint  and  filing  it  with 
the  Justice,  who  presumably  took  such  testi- 
mony as  may  lutve  been  presented,  and  Is- 
sued the  warrant  upon  which  plaintiff  was 
arrested.  There  is  an  absence  of  testimony 
t«idlng  to  show  Howe's  connection  with  any 
conspiracy  to  wrong  plaintiff,  and  there  is 
no  testimony  indicating  that  be  did  any  fur- 
ther or  other  act  in  the  premises  than  as 
hereinbefore  stated,  or  that  he  bad  or  took 
any  personal  interest  in  the  matter.  As  to 
him,  the  only  question  that  need  be  con- 
sidered is  whether  the  undisputed  evidence 
shows  that  there  was  probable  cause.  As 
there  Is  no  conflict  In  relation  to  the  facts, 
this  was  a  question  for  the  court  to  decide, 
and  he  correctly  held  that  It  failed  to  show 
a  want  of  probable  cause.  See  Rankin  t. 
Crane,  104  Mich.  6,  61  N.  W.  1007;  Fine 
V.  Navarre,  104  Mich.  93,  62  N.  W.  142; 
Rogers  t.  Olds,  117  Mich.  868,  75  N.  W. 
933.  Moreover,  It  conclusively  appears  that 
Howe  did  not  act  maliciously  or  oppressively. 
James  v.  Sweet,  125  Mich.  132,  84  N.  VT.  61, 

It  Is  contended  that  the  report  of  the 
analyst  was  based  upon  a  half-pint  bottle 
of  milk,  while  the  proof  shows  that  plaln- 
tifTs  milk  submitted  to  him  was  contained 
In  a  pint  bottle;  that  Howe,  being  employed 
in  the  dairy  and  food  commissioner's  office, 
should  have  ascertained  these  facts.  We  do 
not  think  so.  In  the  first  place,  while  the 
report  does  state  that  the  sample  was  sub- 
mitted In  a  half-pint  bottle,  it  states  that  it 
was  under  a  seal  numbered  H.  696.  Havens, 
Smith,  and  the  analyst  agree  that  the  sample 
so  numbered  and  sent  was  a  piAt  bottle  that 
was  procured  from  Blrdsall.  Blrdsall  says 
it  was  a  pint  bottle,  and  he  does  not  testify 
as  to  the  number,  except  as  he  procures  a  re- 
ceipt bearing  a  different  number,  which  he 
said  he  received  from  Havens  for  one  bot- 
tle. The  evidence  is  clear  that  an  error  was 
made  in  the  report  as  to  the  description  of 
the  bottle  analyzed.  But,  furthermore,  the 
law  requires  an  analysis  to  be  made,  and 
Comp.  Laws,  (  11,424  makes  the  certificate 
prima  fade  evidence  of  adulteration.  See, 
also,  Pnb.  Acts  1899,  p.  455,  No.  268,  {  L 
We  are  of  the  opinion  that  in  the  absence  of 
Information  or  belief  to  the  contrary,  such 
a  certificate  Justifies  an  officer  In  making 
a  complaint  under  these  statutes. 

Tbio  only  act  done  by  Havens  and  Smith 


was  the  procuring  and  sending  of  the  two 
bottles  of  milk  for  analysis.  This  was  law- 
ful under  the  statute.  There  Is  no  testi- 
mony Indicating  any  bad  faith  in  this  on 
the  part  of  Havens.  Counsel  do  claim,  how- 
ever, that  Smith  was  actuated  by  spite,  the 
only  reasons  alleged  for  It  being  plaintiff's 
refusal  to  advertise  in  a  certain  newspaper 
when  requested  by  Smith,  and  an  alleged 
controversy  over  the  alleged  unsanitary  con- 
dition of  plaintilTB  premises  and  milk  cans. 
If  It  be  admitted  that  Smith  caused  samples 
of  milk  to  be  obtained  and  sent  for  analysis, 
he  did  no  more  than  the  law  required,  if  he 
knew,  believed,  or  suspected  it  to  be  impure, 
whatever  his  feelings  toward  plaintiff  may 
have  been.  There  la  no  testimony  tending  to 
prove  that  he  did  more  than  this,  and  there- 
fore no  evidence  that  he  had  any  part  in 
the  prosecution,  which  appears  to  have  been 
based  solely  upon  the  analysis  of  the  milk 
which  came  from  the  plaintiff's  dairy,  nnder 
the  clear  proofs  in  the  case. 

Counsel  contend  that  the  act  under  which 
this  plaintiff  was  prosecuted  is  unconstitu- 
tional, and  therefore  defendants'  prosecution 
was  necessarily  without  probable  cause.  If 
the  defendants  could  have  been  shown  to 
know  that  such  act  was  unconstitutional  and 
would  be  declared  so,  it  is  possible  that  some 
weight  might  attach  to  such  claim;  but  in- 
asmuch as  they  could  not  have  known  it,  if 
cannot  be  said  that  the  making  of  a  com- 
plaint to  a  proper  officer  was  without  prob- 
able cause  upon  such  a  ground.  Bvery  stat- 
ute should  be  considered  valid  until  there  is 
a  Judicial  determination  to  the  contrary,  and 
these  defendants  had  a  right  to  act  upon 
such  assumption.  The  question  whether  they 
had  probable  cause  for  making  this  com- 
plaint cannot  depend  on  what  may  be  held  as 
to  the  validity  of  the  law.  We  can  therefore 
omit  a  discussion  of  the  question  of  constitu- 
tionality. It  Is  also  contended  tliat  the  pleas 
of  the  general  issue,  without  any  notice  of 
the  defenses  made,  were  insufficient  under 
rule  7  to  support  the  proof.  The  general  is- 
sue is  a  denial  of  all  things  that  a  plaintiff 
must  established  to  maintain  bis  action. 
Want  of  probable  cause  is  one  of  these. 
Sweet  V.  Negus,  30  Mich.  406;  Hamilton  v. 
Smith,  89  Mich.  222;  Smith  v.  Austin,  49 
Mich.  286,  13  N.  W.  693;  Spalding  v.  Lowe, 
56  Mich.  866,  23  N.  W.  46;  Le  Clear  v.  Per- 
kins, 103  Mich.  181,  61  N.  W.  357,  26  L.  R. 
A.  627. 

Counsel  claim  that  defendants  did  not  con- 
sult the  prosecuting  attorney,  and  there- 
fore the  court  erred  In  directing  a  verdict 
No  attempt  was  made  to  excuse  an  Improper 
prosecution,  under  the  advice  of  counsel. 
The  question  Is  unimportant. 

The  Judgment  is  affirmed. 


Digitized  by  LjOOQIC 


628 


122  NOBTHWBSTSBN  BBPORrrXB. 


(Mlcb. 


PIEiRCB  T.  a  H.  BIDWEn:j[<  THRESHEXC 
CO. 

(Supnine  Coart  of  Michigui.     Oct  4,  1909.) 

1.  TbIAI.  (f  295*)— iNSTBUOnOITB— To  BK  COH- 

SIDEBED   AS  A    WHOLE. 

To  ascertain  the  true  meaning  of  a  charge, 
it  must  be  considered  as  a  whole. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  §S  703-717 ;   Dec.  Dig.  |  295.*] 

2.  Negligence  (8  139*)— Actions  —  iNSiBxro- 
TioNa— "Imminent  Danoeb." 

In  an  action  by  a  person  using  a  threshing 
machine  against  the  manufacturer  thereof  for 
injuries  from  negligent  construction  of  a  deck 
thereon,  through  which  plaintiff  fell,  a  charge 
that  plaintiff  must  prove  that  the  deck  as  con- 
structed was  imminently  dangerous  to  life  or 
limb  of  those  operating  the  machine,  and  that 
defendant  knew  it  to  be  so ;  that  the  term  "im- 
minent danger"  is  sucli  danger  as  must  be  in- 
stantly met  and  which  cannot  be  guarded 
against  by  calling  on  others  for  assistance ;  and 
that  this  is  the  kind  of  dan^r  that  persons 
must  l>e  subjected  to,  to  be  in  imminent  danger, 
under  the  claim  of  plaintiff — was  not  mislead- 
ing, as  indicating  that  the  danger  should  involve 
an  instant  consummation  rather  than  be  impend- 
ing. 

[Ed.  Note. — For  other  cases,  see  Negligence, 
Cent  Dig.  IS  371-377;    Dec.  Dig.  {  139.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  4,  pp.  3410-3411.] 

3.  Appeal  and   Ebrob   ({  1060*)— Review— 
Abgument  of  Counsel. 

In  a  personal  injury  action,  where  one  per- 
son was  sworn  as  an  eyewitness,  and  another 
was  with  him,  but  was  not  sworn,  and  five  or 
six  men  were  about  the  place  at  the  time  of  the 
injury,  plaintiffs  counsel  argued  that:  "There 
were  at  least  half  a  dozen  eyewitnesses  to  the 
accident  who  might  have  t>een  subpoenaed  by  the 
defense  if  they  intended  to  raise  any  qnestion 
about  how  the  accident  occurred."  This  was 
excepted  to  on  the  ground  that  the  record  did 
not  show  how  many  eyewitnesses  there  were, 
and  counsel  denied  tlie  statement,  and  said  that 
the  jury  would  remember  how  many  eyewitness- 
es there  were :  that,  if  be  was  wrong,  the  ste- 
nographer could  take  the  statement,  "but  there 
was  Brock  and  Carpenter  on  the  stack."  Held 
that  though  the  statement  of  counsel  was  an 
extravagant  one,  his  subsequent  statement  made 
it  apparent  that  it  was  no  more  than  an  extrav- 
agance, and  it  did  not  constitute  reversible  er- 
ror. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  }  4135;   Dec.  Dig.  S  1000.*] 

Error  to  Circuit  Conrt,  Eaton  County; 
Clement  Smith,  Judg& 

Action  by  Loren  D.  Pierce  against  the  C. 
H.  Bldwell  Thresher  Company.  Judgment 
for  plaintiff,  and  defendant  brings  error. 
Affirmed. 

See,  also,  153  Mich.  323,  116  N.  W.  1104. 

Argued  before  OSTRANDER,  HOOKER, 
MOOKB,   McALVAY,  and  BROOKE,   J  J. 

Thomas,  Cummins  &  Nichols,  for  appellant 
Frank  A.  Dean,  Ernest  G.  Davids,  and  Hug- 
gett  &  McPeek,  for  appellee. 

McALVAY,  J.  In  an  action  for  damages 
for  personal  injuries  suffered  by  plaintiff 
by  breaking  through  the  deck  of  a  bean 
threshing  machine  manufactured  bj^  defend- 
nrt  coTTinanv  nlnlntlfT  recovered  a  Judgment. 


Tbe  case  was  before  thia  coart  for  review 
after  a  former  trial.  It  la  reported  (Pierce  y. 
BldweU  Thresher  Co.)  153  Mich.  323,  116  N. 
W.  1104.  Comparing  the  record  now  under 
a  consideration  with  that  before  the  court 
in  tbe  former  case,  we  find  that  a  restatement 
of  the  facts  will  not  be  necessary  and  refer 
to  the  statement  In  the  opinion  reported.  It 
Is  claimed  by  appellant  in  its  brief  that 
"there  is  in  the  present  record  a  great  deal 
of  evidence  bearing  upon  tbe  vital  ques- 
tions Involved  in  the  case  which  was  not  In 
the  former;  and  some  of  the  questions  here 
raised  are  raised  wltb  a  view  of  the  different 
aspect  given  to  the  case  by  this  evidence. 
There  Is  also  evidence  which  we  claim  shows 
that  the  accident  could  not  have  happened 
in  the  manner  alleged."  A  motion  for  a  new 
trial  on  the  ground  that  the  verdict  was 
against  the  clear  weight  of  the  evidence  was 
denied,  and  error  is  assigned  upon  such  d^ 
DlaL 

1.  The  first  assignment  of  error  relied  up- 
on by  defendant  is  to  the  charge  of  tbe  court 
with  reference  to  the  meaning  of  "Imminent- 
ly dangerous"  contained  In  the  following 
paragraph:  "I  am  going  to  say  to  you  that 
in  my  mind  imminent  danger  is  such  as  must 
be  instantly  met  and  cannot  be  guarded 
against  by  calling  on  others  for  assistance." 
The  Instructions  to  the  Jury  connected  with 
the  question  of  tbe  imminently  dangerotis 
character  of  tbe  structure,  and  the  respon- 
sibility resting  upon  a  manufacturer  who 
places  machinery  so  constructed  upon  tbe 
market  1&  connection  with  which  the  sentence 
objected  to  was  given,  can  be  understood 
only  by  considering  all  tbat  was  said  upon 
the  subject  In  addition  to  the  portion  of 
the  charge  given  on  this  subject  and  printed 
and  approved  in  the  former  opinion,  to  which 
reference  is  bad,  the  court  said:  "And  I 
further  instruct  you  that  In  order  to  recover, 
plaintiff  must  satisfy  you  by  a  prepondei^ 
ance  of  all  tbe  proof  that  the  decking  as 
constructed  was  Imminently  dangerous  to 
life  or  Umb  to  those  operating  the  machine, 
and  that  the  defendant  its  officers,  or  agents 
knew  that  It  was  so  imminently  dangerous. 
And  tn  that  connection  I  say  to  you  that. 
If  you  find  this  decking  or  structure  as  con- 
strQcted  was  Inherently  Imminently  dan- 
gerous to  life  or  limb,  defendant's  knowledge 
of  the  same  may  be  Implied  from  the  fact 
that  It  was  the  manufacturer  of  the  ma- 
chine, and  had  knowledge  of  the  manner  of 
its  construction,  and  of  the  uses  to  which 
the  machine  was  to  be  subjected.  Now, 
gentlemen,  there  has  been  something  said 
here  that  I  would  say  to  you  about  this 
term  'imminent  danger.'  I  am  going  to  say 
this  to  you  that  in  my  Judgment  imminent 
danger  is  such  danger  as  must  be  instantly 
met,  and  cannot  be  guarded  against  by  call- 
ing on  others  for  assistance.  If  you  can 
get   from   that   Instruction   and  from   tbat 


•For  other  cases  see  same  topic  and  section  NUUBBR  tn  Dec.  *  Am.  Digs.  VX/t  to  data,  *  Reporter  Indexes 


Digitized  by  LjOOQ  l€ 


UichJ 


BOARD  OF  SUP'RB  ARENAO  CO.  t.  BOABD  OF  BUP'BS  10600  00. 


629 


definition,  'Imminent  danger,'  that  Is  what 
I  understand  It  to  be,  Is  such  danger  as  must 
be  instantly  met,  and  cannot  be  guarded 
against  bj  calling  on  others  for  assistance. 
That  is  the  kind  of  danger  that  parties 
must  be  subjected  to,  to  be  in  Imminent 
danger,  under  the  claim  of  the  plaintiff  In 
this  case.  •  •  •••  We  need  not  state 
that  the  rule  Is  settled  that,  to  ascertain 
the  true  meaning  of  a  charge  given,  the  fore- 
going is  the  correct  method.  The  meaning  of 
the  court  In  this  charge  cannot  be  mistaken, 
and  could  not  have  misled  the  Jury.  He  used 
the  ordinary  definition  of  the  words  "im- 
minent danger"  as  approved  in  several  cas- 
es, and  added:  "That  is  the  kind  of  danger 
that  parties  must  t>e  subjected  to,  to  be  in 
Imminent  danger,  under  the  claim  of  the 
plaintiff's  case."  Which  indicated  that  the 
danger  might  be  impending,  and  did  not 
mean  an  instant  consummation.  The  Queen 
of  the  Pacific,  etc.  (U.  S.  C.  C.  Dlst  Oregon) 
25  Fed.  612. 

2.  In  arguing  its  contention  that  the  ver- 
dict was  against  the  clear  weight  of  the 
evidence,  defendant  assumes  that  the  injury 
did  not  occur  to  plaintiff  in  the  manner 
testified  to  by  him,  and  it  relies  upon  the 
evidence  of  the  structure  itself.  There  Is  no 
oral  testimony  In  the  case  contradicting 
plaintUTs  statement.  The  structure  of  the 
decking  and  the  distance  of  the  revolving 
cylinder  from  it  must  then  be  found  by 
the  court  to  entirely  remove  plaintifTs  tes- 
timony from  consideration.  This  would  be 
an  unusual  disposition  of  a  question  of  fact 
apparently  disputed.  We  think  that  the  rec- 
ord does  not  warrant  a  holding  that  plain- 
tifTs testimony  should  be  Ignored.  It  was 
a  question  of  fact  for  the  Jury  to  find  how 
plaintiff  was  injured.  The  second  and  third 
reasons  advanced  and  argued  at  length  as 
to  whether  the  verdict  was  against  the 
weight  of  the  evidence  were  passed  upon 
in  the  former  opinion.  The  questions  as  to 
whether  the  structure  built  as  it  was  to  be 
used  for  the  purposes  known  to  the  manufac- 
turer was  one  imminently  dangerous  to  hu- 
man life  and  limb,  even  In  the  absence  of 
expert  testimony  to  show  such  dangerous 
character,  and  whether  the  manufacturer 
had  a  full  appreciation  of  the  danger,  were 
held  to  be  questions  of  fact  for  the  Jury. 
The  same  charge  was  given  to  the  jury  on 
tioth  trials  upon  these  questions.  We  find 
nothing  in  the  record  before  us  which  chan- 
ges the  situation.  That  decision  controls  this 
case  in  this  respect.  Nothing  can  be  said 
to  make  what  the  court  there  decided  more 
obvious.  Our  view  that  the  verdict  was 
not  against  the  clear  weight  of  the  evidence 
is  decisive  of  the  error  assigned  to  the  re- 
fusal to  grant  a  new  trial. 

3.  The  language  of  the  charge  covered  by 
this  assignment  of  error  is  admittedly  in 
the  exact  language  used  on  the  former  trial. 


It  refers  to  the  first  paragraph  quoted  In 
this  opinion  relative  to  the  statement  that  de- 
fendant's knowledge  might  be  implied.  The 
question  was  decided  in  the  former  opinion. 

4.  Defendant  argues  that  the  argument  of 
coimsel  for  plaintiff  was  prejudicial  to  it 
In  saying:  "There  were  at  least  half  a 
dozen  eyewitnesses  to  the  accident  who  might 
have  been  subpcenaed  by  the  defense  if  they 
Intended  to  raise  any  question  at>out  how 
the  accident  occurred."  This  was  excited 
to  on  the  ground  that  the  record  did  hot 
show  how  many  eyewitnesses  there  were. 
Counsel  denied  the  statement,  and  said  the 
Jury  would  remember  how  many  eyewit- 
nesses there  were;  that,  if  he  was  wrong 
about  it,  the  stenographer  could  take  the 
statement,  "But  there  was  Brock  and  Car- 
penter on  the  stack."  It  appears  that  Car- 
penter was  sworn  as  an  eyewitness;  that 
Brock  was  with  Carpenter  on  the  stack  and 
was  not  sworn,  and  there  were  five  or  six 
men  about  there  at  the  time.  The  statement 
as  to  the  number  of  eyewitnesses  was  an 
extravagant  one,  but  from  counsel's  state- 
ment made  immediately  it  is  apparent  that 
it  was  no  more  than  an  extravagance.  We 
do  not  consider  this  conduct  sufflcienUy  prej- 
udicial to  warrant  a  reversal  of  the  case 
on  that  ground  alone. 

The  Judgment  Is  affirmed. 

HOOKER,  MOOREl,  and  BROOKE,  JJ., 
concurred  with  McALVAY,  J. 

OSTRANDER,  J.  A  stronger  case  is  made 
for  defendant  upon  the  question  of  the  de- 
fendant's Imowledge  of  the  alleged  defective 
condition  of  the  deck  than  was  made  when 
the  case  was  here  before.  Nevertheless  I 
think  the  point  was  for  the  Jury. 


BOARD  OF  SUFRS  OF  ARENAO  COUNTY 

V.  BOARD  OF  SUP'RS  OF  IOSCO 

COUNTY. 

(Supreme  Court  of  Michigan.     Oct  4,  1909.) 

1.  Hkalth  rt  16*)— Indebtedness— Expendi- 
tures or  QUABANTINB— lilABILTTT  OF  PUB- 
LIC  AUniOBITIES. 


mg 


Under  Coinp.  Laws  1887,  |  4424,  authoriz- 
the  township  board  of  health,  where  any 
person  coming  from  any  township  within  the 
state  is  infected  with  smallpox,  etc.,  to  make  ef- 
fectual provision  as  they  shall  judge  t)est  for 
the  public  safety  by  quarantining  such  person, 
and  providing  a  nurse  and  other  necessaries  at 
the  charge  of  such  person  or  those  liable  for  his 
support,  if  able,  but  otherwise  as  a  charge  upon 
the  county  to  which  he  belongs,  the  allowanoe 
of  an  acconnt  by  a  local  board  of  health  is  con- 
clusive upon  the  board  of  supervisors  of  the 
county  as  to  the  character  of  the  disease,  that 
servires  were  furnished,  their  necessity  and  fit- 
ness, and  the  patient's  inability  to  pay,  and  is 
equally  conclusive  upon  the  county  to  which 
the  patient  I>elongs ;  it  being  liable  upon  a 
sliowing  of  the  allowance  and  payment  of  claims 
by  the  county  in  which  the  illness  occurred,  but 
such  liability  is  not  imposed  or  affected  by  the 


•For  otbcr  eaaes  see  sam*  topic  and  lectlon  NUMBER  In  Dee.  *  Am.  Dlca.  1997  to  date,  A  Reportar  Indazas 


Digitized  by 


Google 


6S0 


122  NOBTHWBSTEBN  BBPOBTSB. 


(Mich. 


action  of  the  boaid  of  supervison  of  auch  other 
coantjr,  vhich  is  at  most  onljr  a  prerequisite  to 
the  enforcement  of  such  liability. 

[Ed.  Note.— For  other  cases,  see  Health,  Cent 
Dig.  SS  13,  14;   Dec  Dig-  i  16.*] 

2.  Health  ({  16*)— Indbbtbdne88— Liabiutt 

FOB    QUABANTINX    EXPENBEfi — PEBSONB    LtlA- 
BLE. 

Under  Comp.  Laws  1887,  i  4424,  authoriz- 
ing the  township  board  of  health,  where  any 
person  from  any  township  within  the  state  is 
infected  with  smallpox,  to  protect  the  public 
health  by  quarantining  such  person  and  pro- 
viding a  nurse,  etc.,  at  the  charge  of  such  per- 
son or  of  those  liable  for  his  support,  if  able, 
otherwise  at  the  charge  of  the  county  to  which 
he  belongs,  a  county  quarantining  one  belonging 
to  another  county  is  not  bound  to  exhaust  its 
remedy  against  the  other  persons  mentioned,  if 
the  patient  is  unable  to  pa^,  before  it  can  sue 
the  county  to  which  the  patient  belongs. 

(Ed.  Note.— For  other  cases,  see  Health,  CSent. 
Dig.  H  13,  14;   Dec.  Dig.  i  16.*] 

3.  Health  (g  16*)  —  Statdteb  —  Hetboactite 
Opebation. 

Quarantine  expenditures  made  by  a  county 
under  Comp.  Laws  1897,  I  4424,  making  the 
county  to  which  one  belongs  who  is  quarantined 
for  smallpox,  etc.,  in  another  county,  liable  for 
such  expenses,  if  the  patient  or  his  parents,  etc, 
are  un{U>le  to  pay,  became  vested  rights  in  the 
county  paying  them,  which  were  not  affected 
by  Pub.  Acts  1903,  p.  6,  No.  7,  amending  the 
statute  by  abolishing  the  liability  by  the  county 
of  the  patient's  residence,  which  was  enacted 
after  the  expenditures  were  made,  but  before  an 
action  therefor  waa  brought  against  the  county. 
[EM.  ^^ote.— For  other  cases,  see  Health,  Cent. 
Dig.  18  13,  14 ;   Dec  Dig.  {  16.*] 

4.  Statutes  (5  263*)— Constbtjction— Retbo- 

ACTIVE  CONSTBUCTION. 

Statutes  will  not  t>e  construed  retroactively 
unless  the  intent  clearly  appears  tliat  they 
should  have  such  effect. 

[Ed.  Note— For  other  cases,  see  Statutes, 
Cent.  Dig.  |  344;  Dec  Dig.  I  263.*] 

5.  CONSTITDTIONAI,    LAW    (|    190*)— STATUTES 

—  Retboaotivb     CONSTBUCTION  —  Vested 

KlORTS. 

A  statute  cannot  be  construed  retroactively 
so  as  to  interfere  with  vested  rights. 

[Ed.  Note.— For  other  cases,  see  Constitution- 
al Law.  Cent  Dig.  ||  531-533;  Dec  Dig.  8 
190.*] 

Error  to  Circuit  Court,  Iosco  County; 
Main  J.  Connlne,  Judge. 

Action  by  the  Board  of  Supervisors  of  the 
County  of  Arenac  against  the  Board  of  Su- 
pervisors of  the  County  of  Iosco.  Judgment 
for  defendant,  and  plaintiff  brings  error. 
Reversed,  and  new  trial  ordered. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

W.  C.  Cook,  for  appellant  Jahraus  & 
Rawden,  for  appellee. 


HOOKER,  J.  Gregory  was  a  resident  of 
Iosco  county.  He  was  taken  ill  with  small- 
pox In  Arenac  county,  at  the  Tillage  6f 
Standlsh.  He  was  placed  In  quarantine  in 
temporary  quarters  provided  for  him,  and  a 
nurse  and  other  supplies  were  furnished  by 
order  of  the  local  board  of  health,  amounting 
to  S307.34.    Among  the  items  were  stove  $3, 


and  tent  f  12,  and  them  aitd  lome  tbings 
listed  as  supplies,  amounting  tn  all  to  |56.79, 
are  said  to  hare  been  afterwards  used  for 
other  patients  who  were  not  residents  of 
Iosco  county.  The  local  board  of  health  al- 
lowed all  of  the  items,  and  the  claims  were 
audited  by  the  board  of  supervisors,  and 
paid  by  the  treasurer  of  Arenac  county.  The 
bill  so  paid  was  presented  to  the  board  of 
supervisors  of  Iosco  county  on  behalf  of 
Arenac  county,  and  was  considered  by  said 
board  at  Its  regular  session  In  January,  1904. 
and  disallowed,  whereupon  this  action  was 
brought  to  enforce  the  claim.  This  expendi- 
ture was  made  in  1901  while  Comp.  Laws,  i 
4424,  was  in  force,  though  Act  No.  7,  p.  6. 
Pub.  Acts  1903,  became  operative  before  this 
action  was  commenced.  The  plaintiff  has 
appealed. 

Counsel  seem  to  agree  that  the  questions 
involved  here  are: 

(1)  Was  Iosco  county  conclusively  bound 
by  the  action  of  the  local  board  of  health  In 
auditing  and  allowing  the  bills? 

(2)  Was  it  so  bound  by  the  action  of  the 
Arenac  board  of  supervisors? 

(3)  Was  Arenac  county  bound  to  exhaust 
its  remedies  against  other  parties  made  lia- 
ble to  pay  by  the  statute  before  suing  defend- 
ant? 

(4)  Was  Arenac  county  barred  from  re- 
covery under  section  4424  by  reason  of  the 
taking  effect  of  Act  7,  p.  6,  Pub.  Acts  1903, 
before  this  action  was  begun? 

The  defendant  also  asks  that  we  decide: 
(a)  Whether  appellant  has  a  valid  claim  for 
articles  afterwards  used  for  Arenac  county's 
own  residents,  (b)  Can  recovery  be  had  for 
services  of  nurse  employed  against  the  pro- 
tests of  the  patient  who  offers  to  furnish 
his  own  nurse  and  physician? 

1.  Allowance  by  Local  Board  of  Health. 
Under  Comp.  Laws,  8  4424,  the  allowance  of 
an  account  by  the  local  board  of  health  was 
conclusive  upon  the  board  of  supervisors  of 
the  county  In  which  the  relief  was  afforded 
as  to  the  character  of  the  disease,  the  neces- 
sity and  fitness  of  the  articles  and  services 
furnished,  the  fact  that  they  were  furnished, 
and  the  inability  of  the  patient  to  pay,  and 
such  board  of  supervisors  had  no  alternative 
but  to  allow  and  pay  the  claim.  Elliott  v. 
Kalkaska  Co.  Sup'rs,  58  Mich.  459,  25  N.  W. 
461,  55  Am.  Rep.  706 ;  Cedar  Creek  v.  Wex- 
ford Co.  Sup'rs,  135  Mich.  124,  97  N.  W.  409 ; 
Pierce  v.  Gladwin  Co.  Sup'rs,  136  Mich.  423, 
99  N.  W.  1132 ;  Sturge  v.  Gladwin  Co.  Snprs, 
136  Mich.  425,  99  N.  W.  1132;  Thomas  v. 
Ingham  Co.  Sup'rs,  142  Mich.  319,  320,  105 
N.  W.  771.  We  are  of  the  opinion  that  this 
action  of  the  local  board  of  health  is  equal- 
ly conclusive  of  these  things  upon  Iosco  coun- 
ty under  the  statute  cited,  and,  while  Arenac 
county  was  called  upon  to  pay  the  certified 
claim  In  the  first  instance,  it  was  only  neces- 
sary upon  the  trial  to  make  proof  of  such 


•For  other  caut  aeo  tarn*  topic  and  sccUod  NUMBER  in  Dec.  ft  Am.  Digs.  1»07  to  daU,  ft  Rcportw  Indexes 


Digitized  by  VjOOQ  l€ 


Mlcb.) 


GALLON  T.  HOUSE  OF  GOOD  SHEPHBBD. 


631 


allowance  and  payment  Tbere  1b  a  close 
analogy  between  such  a  case  as  this  and  the 
expenses  of  state  troop  in  suppressing  a  riot. 
See  And.  Gen.  t.  Bay  Co.,  106  Mich.  679,  680, 
64  N.  W.  570,  for  a  discussion  of  the  prin- 
ciple Involved.  See,  also,  Arenac  Sup'rs  r. 
Iosco  Sup'rs,  144  Mich.  54,  107  N.  W.  725. 

2.  Allowance  by  Arenac  Board  of  Super- 
visors. A  lengthy  discussion  of  tbla  question 
is  unnecessary.  The  action  of  the  Arenac 
supervisors  added  nothing  in  the  way  of  cre- 
ating a  legal  liability  on  the  part  of  Iosco 
county.  At  most,  such  action  was  a  pre- 
requisite to  enforcement. 

4.  Remedy  against  Private  Persons.  This 
question  was  settled  by  the  case  of  Gedar 
Creek  v.  Wexford,  supra,  which  followed  the 
enunciation  of  the  same  rule  by  Mr.  Justice 
Moore  in  McKillop  v.  Board  of  Supervisors, 
116  Mich.  614,  74  N.  W.  1050.  It  is  true  that 
in  those  cases  the  question  was  raised  by 
the  board  of  the  county  in  which  the  relief 
was  furnished,  but  we  think  It  equally 
applicable  in  this  case.  Arenac  was  not 
bound  to  exhaust  the  remedy  given  against 
private  persons.  Under  the  law,  it  merely 
performed  its  duty  of  paying  this  bill  for  the 
use  and  benefit  of  Iosco,  If,  in  fact,  the  obli- 
gation vested  on  Iosco  by  reason  of  the  resi- 
dence of  the  patient,  which  is  not  disputed. 
Act  7,  p.  6,  Pub.  Acta  190S.  Those  rights 
vested  under  Comp.  Laws,  f  4424,  and  were 
not  lost  by  the  amendment  of  1903,  which 
should  be  held  to  be  limited  to  cases  arising 
thereafter. 

(1)  Under  the  rule  that  statutes  will  not  be 
considered  retroactive  unless  the  Intent  that 
they  should  have  retroactive  effect  clearly 
appears.  Price  v.  Hopkln,  13  Mich.  318; 
Smith  y.  Humphrey,  20  Mich.  306 ;  Fuller  v. 
Grand  Rap.,  40  Mich.  395;  Maxwell  v.  Bay 
City  B.  Co.,  46  Mich.  278,  9  N.  W.  410;  Phil- 
lips T.  Buffalo  Tp.,  68  Mich.  217,  85  N.  W. 
918;  In  re  Lambrecht,  137  Mich.  450,  100 
N.  W.  606;  Davis  v.  M.  C.  B.  B.  Co.,  147 
Mich.  479,  111  N.  W.  76. 

(2)  It  cannot  be  construed  as  retroactive 
to  the  detriment  of  vested  rights.  Crane  v. 
Beeder,  21  Mlcb.  24,  4  Am.  Rep.  430;  Van 
Fleet  V.  Van  Fleet,  49  Mich.  610,  14  N.  W. 
566 ;  Todd  ▼.  Elec.  Com'rs,  104  Mich.  474,  62 
N.  W.  564,  64  N.  W.  496,  29  L.  R.  A  330; 
Cooley  Con.  Llm.  (6th  Ed.)  p.  870;  Ludwig 
V.  Stewart,  32  Mich.  668 ;  Harrison  v.  Metz, 
17  Mich.  377;  McKisson  v.  Davenport,  83 
Mich.  211,  47  N.  W.  100,  10  L.  B.  A.  507; 
Atherton  v.  Bancroft,  114  Mich.  241,  72  N.  W. 
206;  Angell  v.  W.  Bay  City,  117  Mich.  688, 
76  N.  W.  128;  Broffee  v.  Gd.  Rap.,  127  Mich. 
92,  86  N.  W.  401 ;  Heineman  ▼.  Schloss,  83 
Mich.  153,  47  N.  W.  107;  Stltt  v.  Caster- 
line,  89  Mich.  239,  50  N.  W.  847;  Finn  t. 
Haynes,  37  Mich.  63;  Danville  Co.  v.  Ct 
J.,  88  Mich.  244,  50  N.  W.  40 ;  Philip  v.  Her- 
aty,  147  Mich.  473,  111  N.  W.  93,  118  Am. 


St.  Rep.  654;  Little  v.  Brousfleld  Co.,  154 
Mich.  369,  117  N.  W,  003;  Endllch  on  Stat- 
utes, {  271 J  Potter's  Dwarris  on  Stat  p. 
163;  Bonghner  v.  Bay  City  (Mich.)  120  N. 
W.  597. 

The  judgment  Is  reversed,  and  a  new  trial 
ordered. 


GALLON  V.  HOUSE  OF  GOOD  SHEPHERD. 
(Supreme  Court  of  Michigan.     Oct  4,  1909) 

1.  CEABrriEs  (8  45*_)— Liabiijtt  fob  Tobts. 

If  a  ctiarltable  institution  is  a  public  char- 
itable institution,  it  is  not  liable  for  tlie  torts 
of  its  officers  or  agents. 

[Ed.  Note.— For  other  cases,  see  CSiarities, 
Cent  Dig.  f  103;    Dec.  Dig.  i  45.*] 

2.  CHABrrras  (i  46*)— State  iMsnTunoRS— 

LlABILITT   TOB  TOBTS. 

If  a  charitable  institution  is  a  govemmen- 
tal  agency,  it  is  not  liable  for  the  torts  of  its 
officers  or  agents. 

[EM.  Note.— For  other  cases,  see  Cliarities, 
Cent  Dig.  I  108;    Dec.  Dig.  i  45.*] 

3.  Chakities  (S  89*)— "Statb  iMtfrrrunoNs" 
—What  abb. 

The  fact  that  a  charitable  Institution  is  by 
statute  given  the  right  to  detain  a  person  com- 
mitted to  it  b];  a  magistrate  or  court  does  not 
render  the  institution  a  "state  institution"  or  a 
governmental  agency. 

[Ed.  Note.— For  other  cases,  see  (ISiarities, 
Cent  Dig.  {  100;   Dec.  Dig.  {  39.* 

For  Other  definitions,  see  Words  and  Phrases, 
VOL  7,  p.  6634;    vol.  8,  p.  7804.] 

4.  GHABmEs  (I  39*)— "Chabitabib  Iwenrtj- 
TIONS' '— Natdbb. 

An  institution,  organized  under  Pub.  Acta 
1855,  p.  28,  No.  20  (Comp.  Laws  1807,  §§  8264- 
8270),  providing  that  three  or  more  persons  who 
may  desire  to  become  incorporated  for  any  char- 
itable purpose  may  do  so,  the  purpose  of  which 
is  charitable,  is  a  charitable  society. 

[Eid.  Note.— For  other  cases,  see  Charities, 
Cent  Dig.  {  100;    Dec.  Dig.  (  39.* 

For  Other  definitions,  see  Words  and  Phrases, 
vol.  2,  p.  1074;    vol.  8,  p.  7600.] 

5.  Chabities  (I  45*)— Unlawful  Iicpbison- 
KENT— LiABiLrrr  fob  Acts  of  Aqbnts. 

The  duty  of  a  charitable  institution  not 
to  unlawfully  imprison  a  person  cannot  be  dele- 
gated to  servants  or  agents,  so  as  to  relieve  the 
principal  from  responsibility, 

[Ed.  Note.— For  other  cases,  see  Charities, 
Cent  Dig.  i  103;    Dec.  Dig.  f  45.*] 

6.  CHABrms   (I   48*)— DivKBBiON   of   Tbust 

FCNDS. 

Trust  funds  of  a  charitable  institution  may 
be  used  to  indemnify  a  person  injured  by  the 
tort  of  servants  or  agents  of  the  institution. 

[EH.  Note.— For  other  cases,  see  Charities, 
Cent  Dig.  I  IM;    Dec.  Dig.  I  48.*] 

7.  False  Impbisonmknt  ((  38*)  —  Excessive 
Damages. 

Where  a  girl  16  years  old  was  unlawfully 
detained  by  a  charitable  institution  for  the  ref- 
ormation of  women  and  girls  for  seven  years 
against  her  will,  without  the  knowledge  of  her 
relatives,  a  recovery  of  $2,500  was  not  excessive. 

[Ed.  Note. — ^IV>r  other  cases,  see  EVilse  Impris- 
onment, Cent  Dig.  {{  113-115;  Dec.  Dig.  I 
36.*] 


•For  other  i 


I  see  Mm*  topic  and  section  NUMBER  In  Deo.  *  Am.  Dlt*.  U07  to  dat*,  *  ReporUr  Indexes 


Digitized  by 


Google 


632 


122  NORTHWESTERN  RBPUBTEB. 


(MlctL 


8.  PAMB   iHPKISONMKire    (|    23*)— Unlawhtji. 

Detention  of  Inmatb— Action  fob  Dam- 

AQBS— ADHISaiBtUTT  OF  EVIDEHOB. 

In  an  action  against  a  charitable  institu- 
tion for  unlawfully  detaining  a  16  year  old  girl 
for  seven  years  against  lier  will,  plaintiff,  to 
prove  a  motive  other  than  a  mere  charitable  one, 
could  show  the  labor  to  which  the  girl  was  put, 
the  fact,  if  such,  that  her  work  was  pro6table 
to  the  institution,  that  the  girl's  disappear- 
ance was  soon  known  to  her  relatives,  and  that 
persistent  and  continued  efforts  were  made,  by 
employing  detectives  and  by  newspapers,  with- 
out success  to  ascertain  her  whereabouts. 

[Ed.  Note.— For  other  cases,  see  False  Impris- 
onment, Cent  Dig.  i  100;    Dec.  Dig.  I  23.*] 

Error  to  Circuit  Court,  Macomb  County; 
Harvey  Tappan,  Judge. 

Action  by  Millie  Gallon,  guardian  of  Mabel 
Wellington,  against  the  House  of  the  Good 
Sbepherd.  Judgment  for  plaintiff,  and  de- 
fendant brings  error.    Affirmed. 

Defendant  was  incorporated  In  the  year 
1884  under  the  provisions  of  Act  No.  20,  p. 
28,  Pub.  Acts  1855,  Comp.  Laws,  §|  8264r- 
8270,  under  the  name  "The  Monastery  and 
Asylum  of  the  Good  Sbepberd."  Amended 
articles  of  association  ^ere  filed  in  the  year 
1889  in  which  the  name  of  tbe  society  is 
"The  House  of  the  Good  Shepherd,"  and 
tbe  object  of  tbe  organization  is  stated 
to  be  "Tbe  moral  reformation  of  girls  and 
women,  and  tbe  preservation  in  a  state  of 
purity  of  girls  and  women  whose  virtue  is 
exposed  to  danger."  Tbe  property  of  the 
association  embraces  some  four  acres  of  land, 
with  buildings,  situated  on  West  Fort  street 
in  the  city  of  Detroit,  valued,  according  to 
reports  filed  with  the  Secretary  of  State, 
in  1905  at  $200,000,  in  1906  at  $100,000,  in 
1907  and  1908  at  $50,000.  The  religious  or- 
der in  charge,  a  cloistered  order,  is  that  of 
"Oar  Lady  of  Charity  of  the  Good  Sbep- 
berd." It  is  one  of  800  houses  maintained 
in  different  places  throughout  the  world, 
and  tbe  Mother  House,  so  called,  is  at  An- 
glers, in  France.  Tbe  institution  is  support- 
ed by  contributions  and  by  tbe  earnings 
of  tbe  Inmates.  Tbe  women  who  are  In 
charge  receive  no  pay — ^no  wages  or  salary — 
for  services;  their  lives  being  devoted  to 
charity.  The  rules  of  the  order  are  promul- 
gated from  the  Mother  House,  to  which 
reports  are  made,  but  each  house  is.  In 
business  management  and  financial  condition, 
independent  Tbe  institution  admits,  irre- 
spective of  tlie  religious  training  or  beliefs 
of  the  applicant,  three  classes  of  women. 
A  more  accurate  statement  is  that  it  classi- 
fies those  received  as:  (a)  Magdalens;  (b) 
reformatory  class,  which  includes  wayward 
girls  in  danger  of  being  led  to  evil;  (c)  pres- 
ervation class,  or  ipnocents,  children  two 
years  old  and  upwards.  Inmates  reach  tbe 
institution  through  various  channels.  Some, 
go  there  voluntarily.  Some  are  received  up- 
on tbe  request  of  parents,  or  those  stand- 
ing to  them  in  tbe  relation  of  parents.    Offi- 


cers of  the  law,  aa  pollconen  and  truant 
officers,  bring  some.  By  Act  No.  271,  Ik.  370, 
Pub.  Acts  1887  (Comp.  Laws,  i  2222),  it  is 
provided  that  police  Justices  of  the  city 
of  Detroit,  Justices  of  the  peace  of  the  coun- 
ty of  Wayne,  and  the  recorder's  court  of 
the  city  of  Detroit  shall  have  power,  after 
the  conviction  of  a  girl  over  7  and  under 
17  years  of  age  of  an  offense  for  which 
she  might  be  sent  to  the  state  Industrial 
school  for  girls,  when  requested  by  a  parent 
or.  guardian,  to  commit  her  to  Imprisonment 
in  tbe  House  of  tbe  Good  Shepherd,  but  not 
at  tbe  expense  of  the  state.  In  such  cases, 
except  where  sentence  Is  imposed  in  the 
recorder's  court,  tbe  commitment  must  be 
approved  by  a  circuit  or  probate  Judge  of  the 
county,  and  the  approval  be  indorsed  upoa 
the  commitment  before  it  is  executed.  Au- 
thority Is  conferred  upon  those  In  charge 
of  the  house  to  determine  whether  reforma- 
tion warrants  the  discharge  of  tbe  girl  so 
committed,  and  to  bind  her  out  for  the 
term  of  her  commitment  to  suitable  persons, 
reporting  their  action  In  the  premises  an- 
nually to  the  recorder's  court  The  number 
committed  to  the  institution  by  the  orders 
of  the  courts  is  very  small.  It  does  not 
appear  that  otherwise  than  as  Just  stated 
Is  there  reposed  anywhere  any  public  visita- 
torial power,  or  that  reports  are  required  to 
be  made^  or  are  made,  to  any  state  or  oth- 
er public  authority,  of  tbe  number,  condition, 
cause,  or  time  of  detention  of  girls  received 
Into  the  Institution.  The  real  name  of  an 
Inmate  Is  not  divulged,  unless  by  herself, 
to  other  Inmates,  but  upon  entering  the  in- 
stitution each  is  given  a  name  by  which  she 
is  called  so  long  as  she  remains  there. 
Since  the  Institution  was  opened,  some  2,000 
girls  have  been  received  in  the  reformatory 
class,  and  at  the  date  of  the  trial  of  this 
case  there  were  about  230  In  that  class.  A 
rather  extensive  business  Is  done  in  tbe 
laundry  of  the  Institution  and  In  sewing. 
Four  wagons  are  employed  in  collecting  and 
distributing  the  work  of  the  laundry  to  per- 
sons outside  tbe  institution.  More  than  200 
girls  and  women  are  employed  In  the  laun- 
dry. The  Inmates  are  not  paid  for  their 
labor. 

In  her  declaration  the  plaintiff  avers  that 
her  ward  and  sister,  Mabel  Wellington,  in 
June,  1898,  being  then  16  years  of  age, 
strong,  well,  and  of  good  character  and 
reputation,  was  induced  by  a  person  named 
In  tbe  declaration,  under  promise  of  procur- 
ing for  her  a  place  to  work  as  a  domestic  in 
a  small  family,  to  go  to  the  House  of  tbe 
Good  Sbepberd,  In  which  institution,  against 
her  will  and  notwithstanding  her  repeated 
protests  and  requests,  without  the  knowledge 
of  her  relatives,  she  was  confined  until  some 
time  In  October,  1905,  when  her  release  was 
procured  by  her  sister  and  brother,  both 
of  whom   had  during  the  period  lived   in 


•For  oUier  cues  lee  rnne  topic  and  lectlon  NUMBER  tn  Dec.  ft  Am.  Dtgf.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by 


Google 


HldL) 


GALLON  V.  HOUSE  OF  GOOD  SHEPHERD. 


633 


Detroit;  the/  having  learned  of  her  whpre- 
abonts  from  an  escaped  or  discharged  girl 
acquainted  with  the  family.  It  Is  alleged, 
also,  that  she  was  compelled  to  work,  was 
111  treated  In  various  ways,  and  her  physical 
and  mental  health  much  Impaired.  To  the 
declaration  the  defendant  pleaded  the  gen- 
eral issue.  Upon  the  trial  the  Jury  was 
Instructed  to  allow  no  damages  for  Impaired 
health,  nor  for  Injuries  inflicted  by  other 
inmates  of  the  house,  and  to  give  nothing  by 
way  of  punishment  of  defendant  or  ex- 
emplary damages.  They  were  told,  In  sub- 
stance and  effect,  that  the  issue  to  be  de- 
termined by  them  was  whether  Mabel  was 
nnlawfully  restrained  of  her  liberty  by  the 
defendant  (Smith  t.  Sisters  of  Good  Shep- 
herd [Ky.]  87  S.  W.  1083),  either  from  the 
time  she  entered  the  institution,  or.  If  she 
entered  voluntarily,  then  from  a  later  time, 
and.  If  she  was  unlawfully  restrained,  to 
give  her  such  damages  as  she  had  suffered 
for  loss  of  time,  physical  discomfort,  morti- 
Scatlon,  disgrace  as  they  found  the  facts 
to  be.  The  Jury  returned  a  verdict  of  $4,000 
In  her  favor,  upon  which  Judgment  was  en- 
tered. A  motion  for  a  new  trial  was  made 
and  heard.  It  was  ordered  that  a  new  trial 
be  awarded  unless  plaintiff  would  consent 
to  remit  $1,500  of  the  Judgment  Plaintiff 
consented.  Errors  are  assigned  upon  rulings 
refusing  a  directed  verdict  for  defendant, 
admitting  and  rejecting  testimony,  upon  the 
conduct  of  counsel  for  plaintiff,  upon  the 
charge  given  and  refusals  to  charge  as 
requested  by  defendant,  and  upon  the  refusal 
to  order  a  new  trial.  As  they  are  considered, 
and  as  la  necessary,  references  will  be  made 
to  the  testimony. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McALVAT,  and  BROOKE,  JJ. 

Franz  C.  Kuhn,  Beth  W.  Knight,  and  Al- 
lan H.  Fracer  (Edwin  Henderson,  of  counsel), 
for  appellant  Thomas  A.  Conlom  (J.  O. 
Tucker,  of  counsel),  for  appellee. 

OSTRANDER,  J.  (after  stating  the  facts 
as  above).  A  contention  is  made  which  goes 
to  the  right  of  the  plaintiff  to  recover,  assum- 
ing it  to  be  established  that  her  ward  was  un- 
lawfully deprived  of  her  liberty — Imprisoned 
— by  defendant  It  Is  said  (a)  that  defendant 
Is  a  governmental  agency;  (b)  that  it  is  a 
public  charitable  institution.  If  It  Is  either, 
It  is  not  liable  to  plaintiff  for  the  torts  of  Its 
officers  or  servants.  The  notion  that  It  Is 
a  governmental  agency  is  predicated  of  the 
statute  which  has  been  referred  to,  which 
permits  certain  magistrates  and  courts  to 
commit  offenders  to  the  Institution.  Assum- 
ing that  defendant  might  legally  detain  a  girl 
committed  to  its  institution  by  one  of  the 
magistrates  or  courts  named  in  the  statute, 
it  does  not  follow  that  the  Institution  be- 
comes, by  force  of  this  statute,  a  state  insti- 
tution or,  within  any  definition  applicable  in 
this  discussion,  a  governmental  agency.    In 


a  sense  girls  so  committed  are  wards  of  the 
state  (Hunt  v.  Wayne  Circuit  Judges,  142 
Mich.  93,  106  N.  W.  531,  3  L.  R.  A.  [N.  S.] 
564),  confided  to  the  custody  of  the  defend- 
ant, upon  the  request  of  a  parent  or  guard- 
ian, as  they  might  be  committed  by  state  au- 
thority to  the  custody  and  care  of  an  In- 
dividual. Whatever  the  relation  thus  creat- 
ed between  the  state  and  the  Institution  may 
be  called,  and  whatever  rights  and  duties 
would  or  might  arise  out  of  such  relation  of 
the  Institution  to  the  girl.  It  is  clear  that  the 
general  character  of  the  Institution  is  not 
changed.  It  remains,  in  fact  and  in  law,  the 
institution  described  Ui  Its  articles  of  asso- 
ciation. 

The  statute  under  which  defendant  is  or- 
ganized does  not  define  a  charitable  purpose, 
but  only  that  any  three  or  more  persons  who 
may  desire  to  become  Incorporated  for  any 
charitable  purpose  may  do  so.  Societies  or- 
ganized under  the  provisions  of  the  act  whose 
purposes  are  charitable,  are  charitable  socie- 
ties. The  avowed  object  of  the  defendant  is 
charitable.  For  the  purposes  of  this  case  it 
may  be  treated  as  occupying  In  the  view  of 
the  law  the  position  of  a  public  charitable 
Institution,  administering  a  charitable  fund. 
Bruce  v.  Central  Methodist  Church,  147  Mich. 
230,  110  N.  W.  951,  10  L.  R.  A.  (N.  S.)  74. 
It  administers  the  fund  according  to  rules 
of  Its  own  adoption,  by  methods  of  Its  own' 
choosing.  It  shelters,  clothes,  feeds,  and  In- 
structs the  Inmates,  requiring  of  them  such 
labor  In  retnm  as  they  can  perform.  Its 
buildings  and  premises  are  erected  and  ar- 
ranged with  the  purpose  of  detaining  those 
whom  it  desires  to  detain.  It  is  Intended  that 
girls  confided  to  the  institution  shall  remain 
until  discharged.  While  It  appears  that  ave- 
nues are  sometimes  open  by  which  an  inmate 
may  go  out  It  also  appears  that  one  who  * 
thereby  goes  out  escapes.  It  is  a  place  of 
detention.  Concerning  these  matters,  the  rec- 
ord leaves  no  one  in  doubt  The  rule  that 
one  who  enters  voluntarily  may  leave  at 
pleasure,  said  to  be  In  force  In  the  Institu- 
tion, is  a  rule  in  recognition  of  the  duty  not 
to  detain  one  not  authoritatively  committed 
to  the  care  of  defendant  Upon  the  facts 
the  question  presented  is  not  one  of  the  re- 
sponsibility of  defendant  to  those  who  vol- 
untarily accept  the  shelter  of  the  institution, 
to  those  committed'  to  it  by  magistrates  or 
courts,  or  to  those  detained  at  the  request  or 
by  the  consent  of  parents  or  guardians.  It  Is 
not  pretended  that  Mabel  Wellington  was 
there  by  order  of  court  or  by  consent  or  at 
the  request  of  parents  or  of  relatives.  It  Is 
admitted  that  after  she  went  to  the  institu- 
tion she  was  not  outside  its  inclosing  wall  or 
fence  until  her  release  was  applied  for  by 
her  relatives.  The  jury  was  instructed  that 
if  she  voluntarily  entered  the  institution,  or 
voluntarily  remained  there,  thereby  subject- 
ing herself  to  its  rules  and  discipline,  she 
could  not  recover,  and  a  verdict  must  be  re- 
turned for  the  defendant    The  question  then 


Digitized  by  VjOOQ  l€ 


634 


122  NOBTHWESTEBN  BEPOBTEB. 


(Bllch. 


Is  one  of  the  liability  of  defendant  to  one 
unlawfully  detained  In  Ita  institution — ^to  one 
deprived  of  liberty  without  antbority  of  tbe 
law.  To  this  question  there  can  be  but  one 
answer.  And  liability  may  not  be  affirmed 
or  denied  upon  any  ai^Iicatlon  of  the  doc- 
trine of  respondeat  superior,  if,  indeed,  uiran 
tbe  facts  there  is  room  for  its  application. 
The  duty  not  to  Imprison  a  citizen  in  de- 
fendant's institution  without  lawful  authori- 
ty is  not  one  which  may  be  delegated  to  serv- 
ants or  agents  so  as  to  relieve  the  principal 
from  responsibility.  The  argument  that  a 
trust  fund  will  be  diverted  If  used  to  Indem- 
nify the  injured  person,  and  therefore  the 
defendant  is  not  liable,  was  answered  In 
Bruce  v.  Oentral  Methodist  Episcopal  Church, 
supra.  See,  also,  Kellogg  v.  Church  Charity 
Foundation,  128  App.  Div.  214,  112  N.  Y. 
Supp.  566. 

We  come  then  to  the  consideration  of  er- 
rors alleged  to  have  been  committed  in  the 
conduct  of  tbe  trial  and  In  refusing  a  new 
triaL  It  was  the  theory  of  plaintiff,  first, 
that  Mabel  was  an  Involuntary  inmate  of  the 
Institution,  held  there  against  her  will;  sec- 
ond, that  her  treatment  while  there  was  im- 
proper and  resulted  in  Injury.  As  to  tbe 
second  proposition,  it  should  be  said  that  the 
specific  objections  to  the  admission  and  the 
exclusion  of  testimony  upon  that  subject  have 
become  unimportant,  for  the  reason  that  the 
whole  matter  was  withdrawn  from  the  con- 
sideration of  the  jury.  Whether  it  should  be 
said  that  defendant  was  prejudiced  general- 
ly by  receiving  some  of  the  testimony  ofTered, 
the  prejudice  being  reflected  In  tbe  verdict 
which  was  rendered.  Is  a  separate  matter, 
which  will  be  later  referred  to.  As  to  the 
first  proposition,  and  whichever  way  one  may 
conclude  the  truth  to  lead,  the  testimony  pre- 
,  sents  a  very  unusual  condition  of  things.  As- 
suming the  girl  to  have  been  healthy,  moral, 
of  good  reputation,  with  relatives  in  thft  city 
of  Detroit  interested  In  her  welfare,  to  whose 
house  she  was  free  to  go,  a  Protestant,  with 
no  particular  religious  tendencies,  a  girl  who 
had  by  her  own  efforts  found  employment  at 
various  places,  receiving  and  disposing  of  her 
earnings,  the  natural  inference  would  be  that 
she  did  not  willingly  Immure  herself  In  this 
institution  for  7  years  as  one  of  a  class  of 
girls  supposed  to  need  reformation.  The  facts 
assumed  were  supported  by  the  testimony 
produced  by  plaintiff.  We  find  nothing  in 
this  -testimony  which  requires  particular  no- 
tice. None  of  these  facts  are  seriously  dis- 
puted by  defendant,  although  testimony  was 
offered  tending  to  prove  that  upon  entering 
she  stated  that  she  was  a  Catholic,  and  it 
is  claimed,  upon  the  whole  record,  that  plain- 
tiff Is  now  manifesting  an  Interest  in  her 
ward  which  is  in  marlced  contrast  to  the  lack 
of  Interest  displayed  in  her  Bister  before  she 
entered  defendant's  Institution.  A  peculiar 
circumstance  is  that  the  relatives  of  Mabel 
who  were  witnesses  discredit  her  mental 
soundness  while  presenting  her,  as  they  are 
obliged  to  do,  as  tbe  principal  witness  for 


plalntlfl.  Tbe  alBter  discredits,  not  her  tmtb- 
fulnesa,  bnt  ber  mental  competency,  in  hav- 
ing herself  appointed  to  be  ber  guardian. 
The  brother  discredits  ber  in  testimony  sucb 
as  the  following:  "At  present  her  mind  is 
not  what  It  should  be,  though  she  is  improv- 
ing. She  Is  not  completely  competent  to 
take  care  of  herself,  but  far  from  it,  and  In 
some  particulars  she  does  not  know  the  dif- 
ference between  right  and  wrong.  I  cannot 
say  whether  she  knows  tbe  difference  be- 
tween the  truth  and  a  lie." 

Whether,  having  proved  the  character  of 
Mabel  and  her  detention  for  7  years  in  an 
Institution  arranged  and  used  as  a  place  of 
detention.  It  was  incumbent  upon  plaintiff  to 
prove  an  involuntary  detention,  or  whether 
It  was  then  incumbent,  npon  defendant  to 
prove  that  she  was  a  voluntary  inmate,  was 
a  question  not  debated  at  the  trial.  Plain- 
tiff assumed,  and  It  seems  was  compelled  to 
carry,  the  burden  of  proving  an  involuntary 
detention.  It  is  admitted  that  she  went  to 
the  institution  with  Mrs.  Goldsmith,  who  was 
at  the  time  in  charge  of  St  Mary's  Home. 
Mrs.  Goldsmith  testified.  In  substance,  that 
Mabel  Wellington  came  to  the  home  with  a 
man  whom  she  said  she  had  met  in  a  jMrk, 
and  had  asked  to  show  ber  the  way,  gave  ber 
name  as  Mabel  Wright,  said  she  had  neither 
home  nor  relatives  and  that  the  man  she 
was  with  had  agreed  to  get  her  a  position  In 
some  hotel  if  she  would  go  that  evening; 
that  she  considered  that  the  girl  was  not  very 
bright;  that  she  needed  protection,  and  told 
her  she  would  take  ber  to  a  home  where  she 
would  be  protected.  She  took  her  to  the  de- 
fendant's institution,  and  turned  ber  over  to 
one  of  the  sisters,  saying,  "Here  is  a  child 
I  have  brought  to  be  looked  after."  She  gave 
them  no  further  Information.  Mary  Howe 
has  first  cbarge  of  the  reformatory  class. 
Mabel,  she  says,  was  brought  to  her  in  -the 
classroom  by  one  of  the  sisters,  and  gave 
her  name  as  Mabel  Wellington.  Later  she 
talked  with  her,  and  made  an  entry  of  facts 
In  a  memorandum  book.  The  entries  are  her 
name,  the  name  of  ber  father  and  mother, 
who  she  said  were  dead,  and  the  name  of  her 
oldest  sister,  Mrs.  A.  H.  Gallon,  residence, 
977  Russell  street,  Toronto,  religion.  Catholic. 
Mabel  testified  that  Mrs.  Goldsmith  promised 
to  give  her  a  place  as  domestic  in  a  family  of 
three,  that  she  took  her  to  the  defendant's 
institution,  on  a  street  car,  late  in  tbe  after- 
noon. Nothing  was  said  to  her  there,  and  no 
one  told  her  the  name  of  the  Institution. 
She  was  taken  to  the  classroom  about  supper 
time,  was  invited  to  eat,  did  so,  went  out  in 
the  yard  after  supper,  and  with  other  girls 
sat  for  an  hour.  Prayers  were  said,  and  she 
went  to  bed.  She  heard  no  conversation  be- 
tween Mrs.  Goldsmith  and  those  in  charge  of 
the  institution.  Two  or  three  days  later 
questions  were  asked  ber,  and  she  signed  her 
name  in  a  book.  She  told  where  she  was 
bom ;  that  ber  father  and  mother  were  dead ; 
the  name  of  her  sister,  Mrs.  Gallon ;  ber  ad- 


Digitized  by  VjOOQ  l€ 


Mich.) 


BKTTERLT  t.  BOYKE  OITT,  G.  A  A.  B.  CO. 


636 


drees  on  RIopelle  street  In  Detroit  She  was 
asked  nothing  about  her  past  life.  In  Can- 
ada Mabel  had  gone  to  school  to  a  convent 
She  knew  that  those  In  charge  of  the  Insti- 
tution to  which  she  was  taken  were  members 
of  some  religions  order.  She  disagrees  with 
Mrs.  Goldsmith  In  many  respects,  among  oth- 
ers In  respect  to  the  time  she  was  at  St 
Mary's  Home.  She  says  she  had  been  there 
some  days,  and,  having  no  money  to  pay  for 
board  and  lodging,  she  assisted  about  the 
work;  that  her  trunk  was  there,  and  she 
afterwards  sent  for  it,  and  It  was  brought  to 
defendant's  Instltntion. 

If  Mabel  liad  known  the  character  of  this 
Instltntion,  and  that  she  would  not  be  per- 
mitted to  leave  it  at  her  pleasure,  there 
would  be  reason  for  the  conclusion  that  she 
entered  and,  for  a  time  at  least  remained 
ToIontarUy — at  least  she  did  not  enter  pro- 
testing or  because  forced  to  do  so.  The  point 
is  not  controlling  here,  however  much  the 
fact  If  it  exists,  may  be  thought  to  explain 
or  excuse  the  subsequent  conduct  of  the  de- 
fendant There  Is  abundant  testimony,  met 
by  counter  testimony  on  the  part  of  defend- 
ant tending  to  prove  that  being  there,  those 
In  charge  proposed  that  she  should  remain 
whether  she  desired  to  remain  or  not  and 
her  own  testimony  is  to  the  effect  that  she 
soon  sought  to  go  away,  and  discovered  the 
purpose  of  those  in  charge  to  prevent  her 
doing  so.  Without  entering  into  details.  It  Is 
sufficient  to  say  that  the  Jury  was  warranted 
in  finding  that  she  was  restrained  of  her  lib- 
erty against  her  will.  '  It  is  true  that  after 
leaving  the  institution,  iand  after  an  attorney 
had  advised  defendant  that  a  claim  for  dam- 
ages would  be  made,  she  signed  and  attested 
a  document  in  which  it  is  stated  that  wlilie 
there  she  was  treated  with  kindness ;  left  at 
the  request  of  her  sister,  and  reluctantly; 
held  tlie  sisters  in  high  regard ;  and  released 
the  convent  and  the  order  from  "any  claim 
whatsoever  I  might  have  by  reason  of  re- 
maining or  being  detained  prior  to  my  ma- 
jority." But  the  manner  in  which  this  writ- 
ing was  procured,  and  the  evidence  as  to 
whether  It  was  voluntarily  and  intelligently 
made,  was  ail  before  the  lury.  The  court 
was  not  in  error  in  refusing  to  direct  a  ver- 
dict for  defendant,  and  the  verdict  rendered 
was  supported  by  testimony.  The  recovery 
is  not  excessive.  If  it  is  assumed  that  the 
persons  in  control  of  this  institution  believed 
they  were  acting  for  the  best  Interests  of  this 
girl,  it  is  nevertheless  intolerable  to  the  law 
that  a  person,  sui  Juris,  shall  be  restrained 
of  liberty,  without  authority  of  law,  by  a 
stranger,  because  In  the  Judgment  of  the 
stranger  such  person  will  thereby  be  morally 
or  financially  improved.  The  charge  of  the 
court  was  favorable  to  defendant,  and  neither 
in  requests  to  charge  refused,  nor  In  the 
charge  as  given,  do  we  discover  any  error. 


The  errors  based  upon  rulings  admitting 
and  rejecting  testimony  have  been  examined, 
with  the  result  that  we  find  none  of  them 
well  assigned.  We  are  of  opinion,  and  this 
answers  most  of  the  objections  not  already 
answered,  tliat  plaintUf  was  entitled  to  testi- 
mony which  tended  to  prove  a  motive  other 
than  a  merely  charitable  one  upon  the  part  of 
defendant  for  receiving  and  detaining  this 
girl,  and  that  it  was  proper  to  show  the  labor 
to  which  she  was  put  and  the  fact  if  it  was 
a  fact,  that  her  work  was  profitable  to  the 
institution.  It  was  proper  also  to  show  that 
the  disappearance  of  this  girl  was  soon 
known  to  her  relatives,  and  that  persistent 
and  continued  efforts  were  made,  by  employ- 
ing detectives  and  by  advertising  in  the  De- 
troit daily  papers,  without  success,  to  ascer- 
tain her  whereabouts.  We  have  examined 
the  record,  too,  to  learn  if  it  is  probable  that 
In  admitting  testimony  relating  to  issues  of 
fact  finally  withdrawn  from  the  jury,  the  de- 
fendant was  prejudiced,  and  whether  the  con- 
duct of  counsel  for  defendant  which  is  com- 
plained about  should  result  in  granting  a  new 
trial.  We  are  not  satisfied  that  prejudice  to 
defendant  resulted. 

Finding  no  reversible  error,  the  Judgment 
of  the  court  below  must  be,  and  It  is,  af- 
firmed. 


BETTERLX  v.  BOYNB  CITY,  Q.  &  A. 
R.   CO. 

(Supreme  Court  of  Michigan.     Oct  4,   1909.) 

1.  RAII.BOADS  ({  229*)  —  Operation  —  Equip- 
ment OF  Trains— Automatic  Coupling. 

A  logging  train  which  contained  one  car, 
the  height  of  which  from  the  rail  to  the  center 
of  the  coupling  exceeded  25  inches,  was  not  with- 
in the  exception  of  Pub.  Acts  1907,  p.  303,  No. 
234,  making  It  unlawful  for  carriers  to  haul 
any  cats  not  equipped  with  automatic  couplers, 
except  logging  cars,  the  height  of  which  from 
the  top  of  the  rail  to  center  of  the  coupling  does 
not  exceed  25  inches. 

[Ed.   Note.— For  other  cases,   see  Railroads, 
Dec.  Dig.  I  229.*] 

2.  Masteb  ano  Servant  (8  201*)— Injuries— 
Assumption  of  Risk— Violation  of  Stat- 
ute. 

A  logging  car  conductor  did  not  assume  the 
risk  of  being  injured  while  attempting  to  couple 
two  cars  having  link  and  pin  couplings,  the 
coupling  of  one  of  which  was  higher  than  allow- 
ed by  the  exception  under  Pub.  Acts  1907,  -p. 
303.  No.  234,  making  it  unlawful  to  haul  cars 
without  automatic  couplings,  but  making  the 
act  Inapplicable  to  logging  trains  composed  of 
cars,  the  height  of  which  from  top  of  rail  to 
center  of  coupling  did  not  exceed  25  inches. 

TEd.  Note. — For  other  cases,  see  Master  and 
Servant  Cent  Dig.  {{  544,  545;    Dec  Dig.  § 

3.  Master  and  Servant  (g  296*)— Injuries- 
Actions  —  Instructions  —  Contributory 
Neoligencb— Applicabilitt  to  Case. 

In  a  logging  train  conductor's  action  for 
injuries  sustained  while  he  was  between  two 
cars  attempting  to  couple  them  by  link  and  pin, 
it  was  error  to  exclude  a  finding  of  contributory 
negligence  except  from  plaintiff's  acts  after  be 


•For  otiier  caaes  ae*  same  topic  and  lecUon  NUMBER  la  Deo.  *  Am.  Digs.  1807  to  dato,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


636 


122  NORTHWESTEBN  REPORTER. 


(Mich. 


went  between  the  cars,  aa  the  jury  ml^ht  have 
found  negligence  in  going  between  the  cani,  in 
Tiew  of  the  obvious  want  of  uniformity  in  the 
couplers  and  of  one  of  the  drawbars  being  low- 
er than  the  other,  without  stopping  the  train 
to  investigate  or  raising  the  low  drawbar  be- 
fore the  cars  met. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  H  1180-1194;  Dec.  Dig. 
S  29G.*J 

Error  to  Circuit  Court,  Otsego  County; 
Nelson  Sharpe,  Judge. 

Action  by  Fletcher  Betterly  against  the 
Boyne  City,  Gaylord  &  Alpena  Railroad  Com- 
pany. Judgment  for  plaintiff,  and  defend- 
ant brings  error.  Reversed,  and  new  trial 
ordered. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE;  McALVAY,  and  BROOKE,  J  J. 

Harris  &  Ruegsegger  (TV.  I*  Townsend, 
of  counsel),  for  appellant  De  Vere  Hall,  for 
appellee. 

HOOKER,  J.  Defendanj  Is  the  owner  of 
a  steam  railroad  which  it  operates  chiefly 
for  logging  operations,  though  some  of  Its 
trains  carry  passengers,  freight,  mall,  ex- 
press, and  baggag&  All  of  Its  logging  cars 
have  link  and  pin  couplers,  and  on  all  but 
four  the  centers  of  such  couplers  are  25 
inches  or  less  above  the  top  of  the  rail.  On 
these  four  cars  they  were  about  27%  Inches 
above  the  top  of  the  rail.  The  plaintiff,  an 
experienced  brakeman,  was  employed  by  de- 
fendant as  conductor  of  its  logging  train, 
and  had  served  as  such  a  year  or  more  be- 
fore his  injury  in  coupling  cars  belonging 
to  such  train,  which  led  to  his  bringing  this 
action.  Upon  the  trial  plaintiff  recovered, 
and  defendant  has  appealed. 

The  plaintiff  relied  on  three  acts  of  negli- 
gence, viz.:  (1)  Violation  of  Act  No.  234,  p. 
303,  Pub.  Acts  1907,  in  the  equipment  of  its 
cars.  (2)  The  use  of  a  car  with  an  Injured 
coupler.  (3)  The  use  of  cars,  with  link  and 
pin  couplers,  of  heights  wanting  in  reason- 
able uniformity.  The  statute  referred  to  pro- 
vides: "It  shall  hereafter  be  unlawful  for 
any  common  carrier  .owning  or  operating 
any  portion  of  a  railroad,  wholly  or  partly 
In  this  state  to  haul  or  permit  to  be  hauled 
or  used  on  its  line  within  this  state  any  car 
used  in  moving  traffic  not  equipped  with 
couplers  coupling  automatically  by  Impact 
and  which  can  be  uncoupled  without  the 
necessity  of  a  man  going  between  the  ends 
of  the  cars;  Provided,  that  nothing  in  this 
act  contained  shall  apply  to  trains  composed 
of  eight  wheeled  standard  logging  cars  where 
the  height  of  such  car  from  the  top  of  the  rail 
to  the  center  of  the  coupling  does  not  exceed 
twenty-flve  inches,  or  to  locomotives  used  in 
hauling  such  trains  when  such  cars  or  locomo- 
tives are  exclusively  used  in  the  transporta- 
tion of  logs."  Section  2  of  the  act  provides  a 
penalty  for  violation.  The  train  in  question 
consisted  of  several  standard  logging  cars, 
conforming  to  the  requirements  in  the  excep- 
tion, and  one  or  more  logging  cars  of  similar 
type,  but  which  did  not  comply  with  It  in  the 


matter  of  height  to  the  centers  of  the  coup- 
lings, being  27%  inches.  The  plaintiff  at- 
tempted to  couple  the  last  car  in  the  train  to 
a  car  standing  on  the  track.  The  former  was 
a  car  with  the  high  coupling,  the  other  one 
with  a  25-lnch  coupling  when  in  repair,  but, 
owing  to  a  bent  or  broken  strap  made  to 
hold  up  the  drawhead,  it  (the  drawhead)  was 
dropped  down.  He  did  not  notice  this  until 
he  stepped  in  between  the  cars,  then  a  foot 
or  two  feet  apart,  the  train  being  in  motion, 
backing  up.  He  testified  that  this  drawhead 
was  two  or  three  Inches  lower  than  it  would 
have  been  had  it  been  in  good  repair,  making 
a  difference  (he  said)  between  the  couplings 
of  six  or  seven  Inches  in  height.  In  trying  to 
make  the  coupling  by  lifting  It  up  his  hand 
was  Injured.  The  plaintiff  admitted  that  his 
brakeman  Informed  him  the  previous  day  of 
a  broken  car  in  the  train,  but  did  not  tell 
him  what  car  it  was  or  where  It  was. 

Counsel  for  defendant  contend:  (1)  That 
the  defendant  did  not  violate  the  statute, 
and  consequently  plaintiff  assumed  the  risk 
of  making  the  coupling;  it  being  one  in- 
ddent  to  his  employment  (2)  That  if  the 
defendant  did  violate  the  statute,  such  viola- 
tion— 1.  e.,  the  absence  of  automatic  couplers 
— was  not  the  proximate  cause  of  the  injury, 
and  therefore  plaintiff  should  not  have  been 
allowed  to  recover  on  that  ground.  (3)  That 
the  court  erred  in  his  Instruction  relating  to 
contributory  negligence. 

1.  Assumption  of  Risk.  We  have  held  that 
one  injured  through  the  violation  of  a  stat- 
ute cannot  be  said  to  have  assumed  the  risk. 
Defendant's  claim  is  that  this  was  a  logging 
train,  all  of  the  cars  in  which  save  one  com- 
plied with  the  requirements  of  the  exception. 
If  that  be  admitted,  it  certainly  was  not  a 
train  to  which  the  exception  applied,  for  It 
is  not  the  kind  of  a  train  described  therein. 
The  Legislature  made  an  exception  in  favor 
of  logging  trains — not  cars — where  (all)  cars 
compiled  with  its  requirementa  All  other 
trains  must  be  made  up  of  cars  equipped 
with  automatic  couplers.  It  cannot  be  said, 
therefore,  that  defendant  contracted  to  as- 
sume the  risk  of  coupling  cars  with  link  and 
pin  couplers,  in  a  train  not  within  the  ex- 
ception. 

2.  Proximate  Canse.  Counsel  say  that, 
had  the  high  car  been  equipped  with  an  auto- 
matic coupler,  it  would  have  required  the 
same  going  between  the  cars,  and  lifting  up 
the  low  drawhead.  Therefore  It  was  not  the 
absence  of  the  automatic  coupler  on  the  high 
car,  but  the  low  drawhead  upon  the  defective 
car  which  was  the  proximate  cause  of  the  ac- 
cident This  Is  more  plausible  than  accur- 
ate. Suppose  the  low  car  had  been  perfect 
and  the  high  car  had  been  equipped  with  an 
automatic  coupler,  still  the  defendant  would 
not  have  compiled  with  the  law,  wbldi  re- 
quired all  logging  tralna  using  any  link  and 
pin  couplings  to  have  drawbars  not  exceed- 
ing 25  Inches.  We  may  reasonably  assume 
that  this  requirement  of  nnlformity  was  for 


•For  other  cases  cm  sune  topic  and  ssctlon  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  *  Reporter  tndazM 

Digitized  by  LjOOQ  l€ 


Mldt.) 


DIEM  T.  DROGMILL.ER. 


637 


the  purpose  of  obviating  the  dangers  of  coup- 
ling with  link  and  pin  peculiar  to  the  use  of 
nneTen  drawbars.  We  find  nothing  In  this 
law  Indicating  as  Intention  to  except  a  train 
of  logging  cars  using  link  and  pin  and  au- 
tomatic couplers  indiscriminately,  at  least 
whet'e  some  of  the  cars  hare  couplers  exceed- 
ing the  lawful  height,  which  is  all  that  we 
need  say  in  this  case.  If  there  is  any  merit 
in  the  claim  that  the  violation  of  the  law  was 
not  the  proximate  cause  of  the  injury.  It 
rests  on  the  fact  that  the  low  car  was  defect- 
ive, by  reason  of  which  the  drawbar  was 
two  Inches  below  the  height  of  25  Inches,  but 
who  can  say  that  the  proximate  cause  was 
necessarily  either  one  of  two  concnrrlDg  acts, 
negligent  or  otherwise.  If  a  Jury  might  have 
BO  found,  we  discover  no  request  that  they 
be  Instructed  upon  the  subject 

3.  Contributory  Negligence.  The  question 
of  contributory  negligence  was  certainly  In 
the  case.  The  court  so  understood  it,  and  left 
It  to  the  Jury.  We  are  asked  to  bold  that  he 
erred  In  limiting  the  Jury  to  acts  done  after 
plaintiff  entered  between  the  cars.  The  de- 
fendant claims  that  the  plaintiff  as  conduct- 
or had  authority,  and  that  It  was  his  duty  to 
set  out  the  high  car  from  the  train,  and 
should  not  have  attempted  the  coupling  for 
that  reason;  also,  that  he  knew  of  the  bro- 
ken car  the  day  before  the  accident,  being 
Informed  thereof  by  his  brakeman  from 
'Whom  be  took  its  number;  further,  that 
with  this  knowledge  be  should  have  discov- 
ered the  difference  between  the  couplers  and 
the  defective  coupler  before  entering  be- 
tween the  cars,  and  that  the  Jury  should 
have  been  allowed  to  find  that  it  was  negli- 
gence on  his  part  to  go  between  the  cars, 
where  he  would  be  compelled  to  attempt  the 
coupling  or  take  serious  risks  of  injury. 

It  also  contends  that  it  was  negligence  for 
a  defendant  to  enter  between  cars,  one  of 
which  was  approaching  the  other  and  In 
close  proximity  to  the  other  without  ascer- 
taining whether  they  were  In  a  condition  of 
good  repair,  and  that  in  this  case  by  not  at- 
tempting to  ascertain  the  condition  of  the 
cars,  and  without  signaling  the  engineer  and 
stopping  the  train,  he  was  guilty  of  contribu- 
tory negligence,  and  therefore  the  court  erred 
in  Instructing  that:  "I  believe  It  to  be 
the  law,  and  now  charge  It  to  you  as  the  law, 
that  when  a  railroad  company  is  required  to 
equip  cars  of  this  class  that  I  have  spoken 
of  with  the  automatic  coupler,  and  they  fail 
to  do  it,  that  then  the  entrance  of  the  con- 
ductor between  the  two  cars  for  the  purpose 
of  trj-ing  to  make  the  coupling  is  not  such  an 
act  on  bis  part  as  assumes  the  risk  connect- 
ed with  the  danger  Involved  In  that  work. 
The  statute  steps  In  and  releases  him  from 
assuming  the  risk  Incident  to  that  work,  but, 
if  he  gets  in  between  the  cars,  then  a  duty 
devolves  upon  him,  and  that  duty  Is  to  use 
such  care,  such  reasonable  care  and  precau- 
tion in  endeavoring  to  make  the  coupling,  as 
is  incident  to  the  danger  Involved.    While  he 


has  the  right,  as  I  have  said  to  you,  without 
assuming  the  risk  connected  with  it,  to  enter 
In  between  the  cars  for  the  purpose  of  mak- 
ing the  coupling,  the  law  devolves  upon  him 
the  duty  of  using  care  In  the  performing  of 
that  work.  And,  If  his  injury  in  this  case 
was  'occasioned  in  consequence  of  any  care- 
lessness on  his  part  while  he  was  endeavor- 
ing to  make  this  coupling,  then  he  cannot  re- 
cover In  this  case.  He  Is  guilty  of  what  we 
term  In  law  'contributory  negligence.'  "  The 
effect  of  this  was  to  preclude  the  jury  from 
finding'  that  there  was  any  contributory  neg- 
ligence except  such  as  ocairred  after  plain- 
tlCTs  entry  between  the  cars.  It  Is  obvious 
that  this  cannot  be  the  correct  rule.  The 
jury  might  have  found  that  it  was  negligent 
to  go  between  these  cars  In  view  of  the  pat- 
ent want  of  uniformity  of  couplers  and  the 
depressed  drawbar  without  stopping  the 
train  to  ascertain  conditions,  or  raising  and 
supporting  the  low  drawbar  before  allowing 
the  cars  to  collide. 

We  are  therefore  constrained  to  reverse 
the  Judgment  and  direct  a  new  triaL  It  Is 
so  ordered. 


DIEM  V.  DROGMILLER. 
(Supreme  Court  of  Michigan.     Oct.  4,  1900.) 

1.  Wills    (S    219*)— Probatb— Pebsonb    Ek- 

TITI.ED    TO    PbOBATE. 

One  having  no  interest  in  the  estate  cannot 
petition  for  the  probate  of  the  will. 

[Ed.  Note.— For  other  cases,  see  Wills,.  Cent 
Dig.  {  527;   Dec  Dig.  S  219.»] 

2.  ExBctrroBS  and  Adminibtbatobb  ({  20*)— 
Appointment— Proceedings— Pebsons  En- 
titled TO  Make  Application. 

One  havinK  no  interent  in  the  estate  la  not 
entitled  to  petition  for  the  appointment  of  an 
administrator. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Dec.  Dig.  I  20.*] 

3.  Executors  and  Administbatorb  (J  450*) — 
Actions  by  Administrator  —  Sufficienot 
OF  Evidence — Settlement  ok  Ectate. 

In  a  suit  by  an  administrator  against  an 
heir  and  legatee  for  the  conversion  of  property 
of  the  estate,  which  the  will  gave  to  defendant 
and  his  mother  jointly,  testimony  of  defendant's 
sister  held  to  show  that  when  defendant  gave 
his  mother  a  sum  for  her  interest  in  the  realty, 
the  ownership  of  the  personalty  was  settled, 
leaving  defendant  in  possession  and  ownership 
thereof. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Dec.  Dig.  i  450.*] 

4.  Executors  and  Administratobs  (|  437*)— 
Actions  bt  Adhinistbatob- Defenses  — 
Laches. 

Where  defendant  and  his  mother  settled  up 
his  father's  estate,  leaving  defendant  in  posses- 
sion of  DersonaltT  which  the  will  gave  to  him 
and  her  jointly,  and  she  bas  for  13  yeai-s  ac- 
quiesced in  defendant's  possession  and  use  there- 
of, and  still  does  so,  and  defendant's  sister  had 
no  interest  in  the  estate,  so  as  to  entitle  her 
to  have  an  administrator  appointed,  an  admin- 
istrator, appointed  on  her  application  for  the 
purpose  of  suing  for  the  personalty,  was  not  en- 
titlod   to  maintain  such  action. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  {  1731:  Djc. 
Dig.  S  437.*] 


*For  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  A  Reporter  Indexes 

Digitized  by  VjOOQ  l€ 


638 


122  NORTHWESTBHN  BBPORTEH. 


(Mlcb. 


S.  ExEcnroBs  and  ADinRiSTBATOBs  ({  29*)— 
Appointment— OoiXATEBAi,  Attack. 

A  holding  that  an  administrator,  appointed 
on  the  application  of  defendant's  sister  for  the 
purpose  of  suing  for  the  conversion  of  personal- 
ty which  the  will  gave  to  defendant  and  bis 
'  mother  jointly,  could  not  maintain  the  actios, 
where  the  mother  has  acquiesced  in  defendant's 

Eossession  thereof  for  13  years,  and  the  sister 
ad  no  interest  in  the  estate  when  she  applied 
for  the  appointment  of  the  administrator,  was 
not  a  collateral  attack  on  the  decision  of  the 
probate   court   appointing   the   administrator. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Dec.  Dig.  §  29.*] 

Error  to  Circuit  Court,  St  Clair  County; 
Harvey  Tappan,  Judge. 

Action  by  Henry  Diem,  administrator, 
against  Henry  Drogmiller.  Judgment  for 
defendant,  and  plaintiff  brings  error.  Af- 
firmed. 

Argued  before  BLAIR,  C.  J.,  and  ORANT, 
MONTGOMERY,  McALVAT,  and  BROOKE, 
JJ. 

Moore  &  Wilson,  tor  appellant  Walsh  & 
Walsh,  for  appellee. 

BLAIR,  C.  J.  This  is  an  action  of  trover 
for  the  conversion  by  defendant  of  certain 
personal  property  alleged  to  belong  to  the 
estate  of  bis  father,  Henry  Drogmiller,  who 
died  testate  March  11,  1894.  Under  his  plea 
of  the  general  issue  defendant  gave  notice 
of  the  statute  of  limitations;  undisputed 
ownership  since  the  death  of  testator  under 
a  claim  of  ownership  acquiesced  In  by  the 
heirs,  devisees,  and  legatees  of  testator;  es- 
toppel to  contest  his  ownership  because  of  a 
division  of  the  property  and  acquiescence  In 
his  acts  of  ownership  thereafter;  a  settle- 
ment by  the  parties  In  Interest  Henry  Drog- 
miller, St.,  executed  the  will  In  question  Oc- 
tober 28,  188&  After  giving  40  acres  of  land 
to  defendant  he  devised  the  homestead  40  to 
his  wife,  Marie  Drogmiller,  for  life,  remain- 
der in  fee  to  defendant  with  the  condition 
that  he  pay  $500  to  his  sister  Emma. 

"Third:  The  personal  property  that  is  or 
may  be  on  the  farm  after  my  death  shall  be- 
long to  my  wife,  Marie,  and  to  Henry,  my  son, 
half  and  half,  and  after  the  death  of  my  wife, 
Marie,  It  shall  all  belong  to  my  son,  Henry. 

"Tourth:  Having  paid  my  son,  Charlie, 
and  my  daughter,  Louise  Ouldenstein,  their 
share,  they  shall  not  receive  any  more  of  the 
property  after  my  death.  But  If  my  son, 
Henry,  should  die  before  my  wife,  Marie, 
then  the  homestead  shall  belong  to  said  my 
wife  and  she  shall  have  the  right  to  dispose 
of  It  as  she  likes  best" 

A  couple  of  weeks  after  the  father's  death 
the  widow  handed  the  will  to  defendant 
with  a  request  that  he  probate  the  will.  He 
toolt  no  steps  to  probate  the  will,  in  conse- 
quence of  something  the  executor  named 
therein  told  him.  and  handed  It  back  to  his 
mother.  Some  three  years  after  Mr.  Drog- 
mlller's  death  the  widow  left  the  farm,  and 
went  to  live  with  her  daughter  Emma,  then 
Emma  Wilde.  In  1902  the  parties  Interested 
In  the  estate  met  and  settled  their  oiUre 


interests  in  the  real  estate,  and  the  others 
executed  quitclaim  deeds  thereof  to  defend- 
ant Nothing  was  said  at  that  time  about 
and  no  express  settlement  was  made  with 
reference  to,  the  personal  estate.  The  be- 
quest of  $500  to  Emma  was  paid  by  defend- 
ant In  1905,  Emma  Wilde  petitioned  for  the 
probate  of  the  wUl,  and  the  same  was  duly 
probated. 

The  principal,  and  substantially  the  only, 
question  of  fact  submitted  to  the  Jury  was 
whether  under  the  evidence  an  executed  gift 
of  the  personal  property  had  been  made  by 
the  father  in  his  lifetime  to  the  defendant 
It  Is,  in  my  opinion,  not  necessary  to  deter- 
mine whether  there  was  sufficient  evidence 
to  go  to  the  Jury  on  the  question  of  a  gift 
of  the  personal  property  by  the  testator 
to  the  defendant  The  testator  died  poB- 
sessed  of  two  40-acre  lots.  By  his  wUl  he 
bequeathed  one  lot  to  the  defendant  the 
other,  hU  homestead,  to  his  wife  during  her 
life,  and  after  her  death  to  the  defendant; 
but  if  he  died  flrrt,  then  the  homestead  to 
belong  to  his  wife  In  fee.  He  bequeathed 
the  personal  property  that  may  be  on  the 
farm  at  his  death  to  his  wife  and  to  Henry, 
half  and  half,  and  after  her  death  it  should 
all  belong  to  Henry.  The  will  was  not  pro- 
bated. Henry,  with  the  knowledge  of  the 
other  heirs,  paid  funeral  expenses,  physi- 
cians' bills,  and  the  other  debts,  and  erected 
a  monument  at  his  own  expense.  Subse- 
quently the  parties  by  a  settlement  carried 
out  the  provisions  of  the  will  and  executed 
deeds  for  that  purpose.  The  will  also  pro- 
vided that  Henry  should  pay  his  sister  Em- 
ma $500  when  she  should  marry  or  become 
of  age.  This  was  paid.  Subsequently  the 
widow  left  the  homestead  and  home  of 
Henry  and  went  to  live  with  her  daughter. 

At  the  time  of  the  settlement.  In  considera- 
tion of  $750  and  an  agreement  to  pay  $60 
per  year  during  her  lifetime  for  her  support 
the  mother  conveyed  her  interest  In  the 
homestead  to  Henry.  Meanwhile  Henry  had 
carried  on  the  farm,  and  had  had  the  control 
and  use  of  the  personal  property,  small  in 
amount  His  mother  had  made  no  demand 
on  him  for  her  part  of  the  personal  proper- 
ty, and  liad  evidently  acquiesced  In  his  use 
thereof.  At  this  settlement  nothing  was  said 
about  the  personal  property.  Eleven  years 
after  the  death  of  the  testator,  the  daughter 
filed  a  petition  in  the  probate  court  for  the 
probate  of  the  will.  She  had  no  Interest  In 
the  personal  property.  She  had  received  her 
entire  share  under  the  provisions  of  the  wUL 
The  only  parties  interested  In  the  personal 
property  were,  and  still  are,  the  defendant 
Henry,  and  his  mother.  Thirteen  years  aft- 
er testator's  death  this  suit  Is  4>rought 
There  is  nothing  to  settle  except  the  personal 
property,  in  which,  as  already  stated,  Henry 
and  bis  mother  are  alone  interested.  The 
record  Is  barren  of  any  competent  evidence 
that  she  makes  any  claim  to  the  proi)erty,  or 
that  she  has  any  knowledge  of  this  proceed- 


•ror  other  cmm  ■••  sam*  topio  and  section  NUMBHiR  In  Dm.  ft  Am.  Diss.  UOT  to  d«1 

Digitized  by 


;lL?v5^§T^' 


ndazM 


Mlcb.) 


GAULT  V.  GAULT. 


639 


Ing.  Under  this  record  the  daughter  Emma, 
having  no  Interest  whatever  In  the  estate, 
secured  the  probate  of  the  will,  and  the  aii- 
pointment  of  an  administrator  with  the  will 
annexed,  for  the  sole  purpose  of  having  the 
administrator  bring  this  suit  There  is  no 
pretense  whatever  of  any  other  reason  for 
securing  the  probate  of  the  will.  One  hav- 
ing no  Interest  in  the  estate  of  a  decea£ed 
has  no  right  to  petition  either  for  the  pro- 
bate of  the  will  or  the  appointment  of  an  ad- 
ministrator. 

A  considerable  portion  of  the  personal 
prox)erty,  hogs,  chickens,  cows,  etc.,  would, 
In  the  nature  of  things,  be  used  up  upon  the 
farm,  and,  in  the  course  of  time,  utterly  dis- 
appear. It  was  undoubtedly  contemplated 
by  all  parties  concerned,  including  the  testa- 
tor, that  the  son  and  mother  would  live  to- 
gether upon  the  farm.  Presumably  she  bad 
the  benefit  of  this  property  while  she  lived 
at  home,  some  four  or  five  years,  after  her 
husband's  death.  She  left  it  there  when  she 
preferred  to  go  and  live  with  her  daughter. 
In  lieu  of  the  provision  made  by  the  will  for 
her  she  chose  to  sell  and  convey  all  her  In- 
terest in  the  real.  If  not  In  the  personal, 
property,  and  to  take  $760  for  her  life  inter- 
est and  $60  a  month  for  her  support  I  think 
It  a  fair  conclusion  from  the  testimony  of 
the  daughter,  the  moving  spirit  In  this  litiga- 
tion, that  it  was  understood  that  all  these 
matters  were  settled.  She  testified :  "When 
I  had  given  Henry  the  deeds,  and  had  got- 
ten my  $100,  and  mother  got  her  $600,  I 
went  home  and  nothing  was  said  about  any- 
thing left  unsettled.  So  far  as  anything  was 
Bald,  everything  was  settled  between  our 
folks,  my  mother,  myself,  and  Henry,  and 
.  it  remained  settled  until  I  filed  this  petition 
In  the  probate  court  some  3  or  4  years  after- 
wards." For  18  years  prior  to  the  bringing 
of  this  suit  the  mother  acquiesced  in  his  pos- 
session and  use  of  the  personal  property, 
and,  for  anything  here  appearing,  still  ac- 
quiesces In  It  The  court  should,  as  request- 
ed, have  directed  a  verdict  for  the  defendant. 
See  Beardslee  v.  Reeves,  76  Mich.  661,  43  N. 
W.  677 ;  Harris  v.  Bow  (Mich.)  120  N.  W.  17. 

This  holding  Is  not  a  collateral  attack  up- 
on the  decision  of  the  probate  court  appoint- 
ing an  administrator.  It  appears  from  the 
plalntilTB  own  showing  that  he  had  no  inters 
est  whatever  In  this  property,  its  possession, 
nse,  or  controL  Where  the  absence  of  any 
right  to  maintain  a  suit  appears  from  plaln- 
tUTs  own  evidence,  he  cannot  recover.  The 
question  is  raised  here  precisely  as  It  was 
in  the  cases  above  cited. 

The  Judgment  is  affirmed. 


GAULT  T.  GAULT  et  nx. 
(Supreme  Court  of  Michigan.     Oct  4  1900.) 
EQtnTT  (I  48»)  —  EquiTABLB  Relief  — Adb- 

QUATX   KEMEDT   AT   LAW. 

Complainant,  a  landlord,  alleged  that  he 
orall{  leased  a  farm  to  defendants,  including 
M^icaiD   personal   property  at   an   annual   cash 


rental ;  that  defendants  bad  failed  to  pay  rent, 
had  committed  waste,  had  refused  to  permit  com- 
plainant to  go  on  the  farm  to  make  necessan 
repairs,  and  had  disposed  of  their  property  wiu 
intent  to  defraud  complainant,  and  prayed  for 
an  account  of  the  rents,  for  nse  and  occupa- 
tion of  the  farm,  for  the  value  of  the  personal 
property,  for  an  injunction  restraining  defend- 
ants from  selling  or  disposing  of  any  of  their 
personal  property,  and  from  committing  waste; 
that  defendants  answer  the  bill  without  oath; 
and  that  complainant  have  such  other  and  fur- 
ther relief  as  should  be  agreeable  to  equity 
and  good  conscience.  Held,  that  complainant 
had  an  adequate  remedy  at  law,  and  was  not 
entitled  to  sue  in  equity. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent 
Dig.  I  156;   Dec.  Dig.  S  4&*] 

Appeal  from  Circuit  Court  Wayne  County, 
in  Chancery;    Flavlus  L.  Brooke,  Judge. 

Bill  by  James  Gault  against  Frank  Gault 
and  wife.  Decree  for  complainant  and  de- 
fendants appeal.    Reversed. 

Argued  before  BLAIR,  C.  J.,  and  MONT- 
GOMERY, MOORE,  OSTRANDER,  and  Mc- 
ALVAY,  JJ. 

Art  B.  Woodruff  and  Frank  W.  Atkinson, 
for  appellants.  James  H.  Pound,  for  appel- 
lee. 

MOORE,  7.  This  Is  a  chancery  appeal 
from  a  decree  in  favor  of  complainant  The 
bill  of  complaint  avers  that  complainant  rent- 
ed April  1,  1007,  to  Frank  Gault  defendant, 
his  farm  at  an  annual  rental  of  $3  per  acre, 
payable  $6.25  per  month,  and  $156,  payable 
at  the  year's  end,  and  that  the  use  of  per- 
sonal property  owned  by  him  was  permitted 
by  the  defendant ;  that  defendant  went  into 
possession  of  the  farm,  and  has  remained 
there  ever  since.  The  bill  further  avers  that 
no  written  lease  was  ever  executed  between 
the  parties  to  this  cause,  though  there  was 
some  talk  looking  to  the  execution  of  a  lease. 
It  is  further  averred  that  complainant  turn- 
ed over  to  defendants  a  quantity  of  personal 
property  consisting  of  live  stock,  that  com- 
plainant was  also  a  creditor  of  defendant, 
and  also  surety  on  different  obligations,  that 
complainant  had  Indorsed  a  note  for  Frank 
Gault  in  the  sum  of  $55,  which  at  the  time 
of  the  filing  of  the  bill  of  complaint  was  un- 
paid, and  that  complainant  was  an  Indorser 
on  a  note  for  $106  given  to  the  Flat  Rock 
Savings  Bank.  It  further  avers  that  said 
Frank  Gault  Is  pecuniarily  Irresponsible; 
that  he  has  not  paid  the  rent  nor  farmed  the 
farm  in  a  manner  comporting  with  good 
husbandry;  that  he  has  allowed  the  weeds 
to  grow,  and  the  fences  and  buildings  to  be- 
come out  of  repair,  and  the  value  of  the  farm 
to  become  greatly  depreciated  by  reason 
thereof;  that  defendant  threatens  to  sow 
fall  crops,  such  as  wheat  and  the  like  fall 
grains,  on  said  farm  this  season,  and  insists 
on  his  right  to  harvest  the  same  during  the 
summer  of  1908 ;  and  that  defendant  has  an- 
nounced his  purpose  of  holding  said  farm  for 
the  period  of  three  years  from  April  1,  1907, 
and  has  threatened  complainant  with  person- 
al violence  if  he  attempts  to  come  upon  said 


•For  other  cues  im  same  topic  and  soctloii  NUMBER  In  Dec.  ft  Am.  Digs.  U07  to  date,  ft  Reporter  Indexes 

Digitized  0" 


640 


122  NORTHWESTERN  REPORTED 


(Mldu 


farm  to  make  any  necessary  repairs  on  t>ald 
farm,  and  to  prevent  waste.  The  bill  also 
avers  tbat  Frank  Gault  bas  disposed  by  bill 
of  sale  of  all  his  property  to  bis  wife,  Neta 
Gault,  to  defraud  complainant,  as  be  believes, 
of  bis  rent,  and  to  render  bim,  complainant, 
liable  to  pay  said  promissory  notes,  on  which 
complainant  is  indorser,  and  to  lose  those 
due  bim;  and  that  said  transfer  is  a  fraud 
upon  complainant's  rights,  and  is  without 
any  consideration  whatever. 

There  is  a  prayer  for  specific  relief  not 
very  clearly  stated,  and  a  general  prayer  for 
relief.  The  answer  admits  some  of  the  aver- 
ments of  the  bill  and  denies  others.  The  de- 
fendant admits  that  defendants  intend  to 
BOW  fall  wheat  on  the  land  described  In  said 
bill  of  complaint,  and  claims  the  right  to 
harvest  the  crops,  and  admits  that  the  said 
Frank  Gault  intends  to  hold  said  farm  for 
three  years  from  April  1,  1907.  Then  fol- 
lows a  prayer  In  the  nature  of  a  cross-bill, 
which  clearly  shows  that  an  agreement  was 
made  which  was  to  be  reduced  to  writing, 
and  that,  acting  upon  said  agreement,  de- 
fendants entered  upon  the  premises.  The 
prayer  was  for  affirmative  relief.  Complain- 
ant answered  the  cross-bill.  After  complain- 
ant had  put  In  bis  proof,  the  following  occur- 
red In  open  court: 

"Complainant  thereupon  rested.  Counsel 
for  defendant  thereupon  asked  leave  of  the 
court  to  withdraw  their  cross-bill  for  the 
reason  that  on  account  of  the  title  to  the 
property  being  In  complainant  and  his  wife 
that  decree  In  this  cause  would  be  of  no 
value  to  them.  TiOave  was  granted  and  the 
«ro8S-bill  withdrawn.  Counsel  for  defendants 
thereupon  moved  the  court  to  dismiss  the  bill 
of  complaint  for  the  reason  that  all  of  the 
relief  prayed  for  In  the  bill  of  complaint  has 
been  given  complainant.  Counsel  for  com- 
plainant thereupon  moved  the  court  to  con- 
strue the  lease  under  the  prayer  for  general 
relief  to  which  counsel  for  defendants  object- 
ed. The  court  thereupon  said:  'I  wlU  tell 
you  what  I  will  do,  Mr.  Atkinson.  I  will 
pass  upon  this  question,  and  you  may  have — 
although  you  have  rested  yon  may  have  per- 
mission now  to  introduce  such  testimony  re- 
garding the  tenancy  as  you  desire;  I  will 
pass  upon  it  I  will  construe  the  prayer  of 
the  bill  generally,  the  general  prayer  of  the 
bill  to  be  sufficiently  broad  to  entitle  the 
complainant  to  this  relief,  in  spite  of  the 
fact  that  you  have  withdrawn  your  cross-bill. 
In  which  you  ask  for  certain  relief  yourself.' 

"Mr.  Atkinson:  'I  think,  your  honor,  un- 
der the  circumstances,  we  wUl  leave  the  or- 
der withdrawing  the  cross-bill  and  take  the 
case  up  and  have  It  passed  upon.' 

"Counsel  for  defendants  not  desiring  to  put 
In  any  testimony,  the  court  said :  'Under  the 
testimony  you  may  take  a  decree  to  the  ef- 
fect simply  tbat  the  tenancy  by  which  the 
defendant  holds  here  is  as  a  tenant  from  year 
to  year  and  will  expire  on  the  1st  of  April, 
1909." 


The  decree  went  farther  tban  the  above 

suggestion,  and  granted  aOlrmatlve  relief. 

The  solicitors  for  defendants  present  the 
following  propositions  as  involved : 

"(1)  To  what  extent  is  the  power  of  a  court 
of  equity  to  grant  relief  not  specifically  pray- 
ed for  limited  by  the  nature  of  the  plead- 
ings and  the  relief  specifically  prayed  for, 
when  there  Is  a  prayer  for  general  relief? 

"(2)  When  all  the  relief  specifically  prayed 
for  has  been  granted,  can  the  court  grant 
relief  for  which  there  is  an  adequate  remedy 
at  law  for  the  purpose  of  avoiding  litigation? 

"(3)  If  in  this  case  the  court  under  the 
pleadings  had  power  to  construe  the  lease,  is 
the  construction  made  by  the  decree  the  prop- 
er one?" 

Each  of  these  propositions  is  argued.  On 
the  cross-examination  of  the  complainant  the 
following  testimony  was  given  by  him:  "I 
did  not  get  any  rent  until  I  sued  for  it.  We 
served  them  notice  to  pay  the  rent,  and  pro- 
ceeded before  the  circuit  court  commissioner. 
We  had  a  hearing  in  July,  1908.  They  paid 
me  $243,  which  was  rent  for  one  year  and 
two  months.  They  also  paid  the  July,  1908, 
rent."  We  think  the  record  discloses  a  case 
where  the  complainant  bas  so  complete  and 
adequate  remedy  at  law  that  the  aid  of  eq- 
uity ought  not  to  be  invoked. 

The  decree  is  reversed.  The  bill  of  com- 
plaint is  dismissed,  with  costs,  but  without 
prejudice. 


SHOWEN  T.   X  I*.  OWENS   CO. 
(Supreme  Court  of  Michigan.     Oct  4,  1909.) 

1.  CoBPOBATioNS    (I   668*)— Foreign   Coaro- 

BATIONS  —  REOTTtATIONS  —  STATETTES  —  AP- 
PLICATION. 

Under  Pub.  Acts  1901,  p^  816,  No.  206,  as 

amended  by  Pub.  Acts  1903,  p.  40.  No.  34,  Pub. 
Acts  1907.  p.  413,  No.  310,  and  Pub.  Acts  Ex. 
Sess.  1907,  p.  9,  No.  3,  regulating  local  bnsineas 
by  foreign  corpoTationB,  and  providing  that  such 
corporations  having  complied  with  the  law 
are  entitled  to  and  subject  to  the  game  reme- 
dies  as  domestio  corporations^  Comp.  Laws 
1897,  I  10442,  providing  that  suits  mny  be  com- 
menced against  any  foreign  corporation  where 
the  cause  of  action  accrues  in  Michigan,  by  tlie 
service  of  a  summons,  declaration,  or  chancery 
subpoena,  on  any  officer  or  agent  of  the  corpora- 
tion, or  on  the  conductor  of  any  railroad  train, 
master  of  any  vessel  belonging  to,  or  in  the  serv- 
ice of,  the  corporation,  etc.,  is  limited  to  foreign 
corporations  transacting  interstate  commerce 
within  the  state. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  §§  2603-2627 ;   Dec.  Dig.  {  668.*] 

2.  Corporations  (|  662*)— Fobeion  Corpora- 
tions—Business  Within   Static— LiIabiu- 

TIES KEMEDIES 

Pub.  Acts  1901,  p.  316,  No.  206,  as  amended 
by  Pub.  Acts  1903,  p.  40,  No.  34,  Pub.  Acts 
1907,  p.  413.  No.  310,  and  Pub.  Acts  Ex.  Sess. 
1907,  p.  9,  No.  3,  regulating  foreign  corporations, 
and  authorizing  them  to  do  business  within  the 
state,  in  so  far  as  the  transaction  of  local  busi- 
ness is  concerned,  makes  such  corporations  as 
to  such  business  domestic  corporations,  and  snl)- 
jects  them  to  the  same  remedies  as  domestic  cor- 
porations. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent.  Dig.  if,  2.508-2.570 ;    Dec.  Dig.  S  662.*] 


*For  other  cues  see  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  DIsi.  1907  to  dldt«,  ft  Reporter  ladezd 

Digitized  by  VjOOQ  l€ 


Midi.) 


SHOWEN  v.  J.  I*  OWENS  CO. 


HI 


3.  CORPORATIORB  (J  659*)— FOKEIGR  C30BP0W.- 

T10N8— Actions— Estoppel. 

A  foreign  corporation  doing  business  in 
Michigan,  woen  auea,  is  estopped  to  allege  that 
it  has  not  complied  with  the  Michigan  laws  au- 
thorizing it  to  do  business  within  the  state,  and 
to  urge  as  a  defense  the  unlawfulness  of  its 
transactions. 

[Ed.  Note^— For  other  cases,  see  Corporatlona, 
Cent.  Dig.  |  2501;  Dec.  Dig.  I  058.*] 

4.  Corporations  (J  670*)— Foreign  Corpora- 
TION8— Attachment— Service. 

Under  Comp.  Laws  1897,  II  10474,  10555, 
10566,  10559,  105C0,  10571,  10o76,  regulating 
attachment,  service  of  attachment  against  a 
foreign  corporation  on  its  resident  agent  confer- 
red jurisdiction  over  the  corporation  in  per- 
sonam. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent  Dig.  {  2632;   Dec  Dig.  8  670.»f 

5.  Attachmbht  (J  8*)— Nature  o»  Claim— 
Unuquidated  Damages. 

A  claim  for  damages  for  breach  of  a  seller's 
warranty  contract,  though  unliquidated,  being 
BUBceptiblc  of  ascertainment  by  a  standard  ref- 
erabie  to  the  contract,  providmg  that  specified 
machines,  sold  for  a  specified  price,  should  be 
fre«  from  Inherent  and  mechanical  defects,  was 
a  proper  basis  of  indebtedness  to  sustain  attach- 
ment 

[Ed.  Note.— For  other  cases,  see  Attachment, 
Cent  Dig.  {  30 ;  Dec.  Dig.  S  &*] 

6.  Assignments  (|  23*)— Assigned  Claims— 
Validitt. 

A  claim  against  a  foreign  corporation  for 
breach  of  a  guaranty  that  Its  machmes  sold  by 
plaintiff's  assignor  in  Michigan,  under  an  agency 
contract  should  be  free  from  inherent  and  me- 
chanical defects,  was  assignable,  authorizing 
plaintiff  to  sue  thereon  in  Michigan. 

[Ed.  Note.— For  other  cases,  see  Assignments, 
Cent  Dig.  |  40;  Dec.  Dig.  {  23.*] 

Certiorari  to  Circuit  Court,  Cent  County; 
Willis  B.  Perkins,  Judge. 

Action  by  John  h.  Showen  against  the  J. 
L.  Owens  Company.  Judgment  for  plaintiff, 
and  defendant  brings  certiorari.    Affirmed. 

Argued  before  BLAIR,  C  J.,  and  MONT- 
GOMERT,  OSTRANDER,  HOOKER,  and 
BROOKE,  JJ, 

Sweet  &  Eastman,  for  appellant  Clap- 
perton  &  Owen,  for  appellee. 


BliAIR,  C.  J.  On  May  18  and  December 
20,  1904,  the  Arbuckle-Ryan  Company,  an 
Ohio  corporation,  and  the  J.  L.  Owens  Com- 
pany, a  Minnesota  corporation,  executed 
written  contracts  at  Toledo,  Ohio,  by  the 
terms  of  which  the  Ohio  corporation  agreed 
to  purchase  Owens  bean  and  pea  threshing 
machines,  to  be  delivered  f.  o.  b.  cars  Min- 
neapolis, the  Owens  Company  "to  guarantee 
the  machines  to  be  free  from  Inherent  and 
mechanical  defects."  By  the  contract  of 
May  13th  the  Ohio  company  Is  given  the  ex- 
clusive sale  of  the  machines  in  certain  coun- 
ties In  this  state.  By  the  agreement  of  De- 
cember 26th  the  Ohio  company  was  given 
the  exclusive  right  of  sale  In  the  entire  state 
of  Michigan.  On  the  4th  day  of  April,  1908, 
the  plaintiff  filed  an  aflldavlt  for  a  writ  of  at- 


tachment In  the  circuit  court  for  fbe  county 
of  Kent,  stating:  "That  the  J.  I*  Owens  Com- 
pany, a  foreign  corporation,  the  defendant 
named  In  said  writ.  Is  Justly  Indebted  to  de- 
ponent in  the  sum  of  $8,600,  as  near  as  may 
be,  over  and  above  all  legal  set-off,  and  that 
the  same  is  now  due  and  upon  express  con- 
tract And  this  deponent  further  says  that 
he  has  good  reason  to  believe,  and  does  be- 
lieve, that  the  said  defendant  is  a  foreign 
corporation."  A  writ  of  attachment  was  Is- 
sued against  defendant,  by  virtue  of  which 
the  sheriff  returned  that  he  seized  certain 
machines  of  defendant :  "I  served  on  Benja- 
min F.  Long  in  the  city  of  Grand  Rapids,  In 
said  county,  who  was  represented  to  me  to 
be  the  agent  of  the  defendant  In  said  attach- 
ment named,  the  J.  L.  Owens  Company,  re- 
siding in  the  said  city  of  Grand  Rapids  and 
doing  business  for  said  defendant  company 
within  the  state  of  Michigan,  a  copy  thereof, 
together  with  a  copy  of  the  inventory  of  said 
property,  duly  certified,  as  I  am  commanded, 
by  delivering  the  same  to  the  said  Benjamin 
F.  Long,  in  the  said  city  of  Grand  Rapids." 
On  the  ISth  day  of  AprU,  1908,  the  plaintiff, 
as  assignee  of  the  rights  and  interests  of  the 
Arbuckle-Ryan  Company  under  Its  said  con- 
tracts with  defendant  filed  his  declaration 
claiming  damages  for  breach  of  warranty  of 
said  contracts.  The  first  count  alleges,  as  to 
the  machines  purchased  under  the  agreement 
of  May  ISth,  "that  the  said  machines  at  the 
time  of  the  making  of  said  promise  and  un- 
dertaking of  the  said  defendant  and  at  the 
time  of  the  delivery  of  said  machines,  were 
not  free  from  inherent  and  mechanical  de- 
fects, but,  on  the  contrary  thereof,  were  In- 
herently and  mechanically  defective,  and 
were  constructed  from  poor  and  rotten  wood, 
and  poor  and  defective  castings  and  materi- 
als, and  were  unsuitable  for  the  purposes 
for  which  they  were  intended.  And  the  said 
plaintiff  avers  that  the  said  the  Arbuckle- 
Ryan  Company,  confiding  in  the  said  promise 
and  undertaking  of  the  defendant  as  afore- 
said, bad,  through  its  salesmen  and  agents, 
sold  and  delivered  said  machines  to  its  cus- 
tomers in,  to  wit  the  state  of  Michigan,  and 
elsewhere,  extending  credit  to  its  said  cus- 
tomers for  the  purchase  price  of  the  ma- 
chines so  sold  to  them ;  that  for  the  reasons 
aforesaid  the  said  macblnes  became  and  were 
of  no  use  or  value  to  the  said  Arbuckle- 
Ryan  Company,  or  to  Its  said  customers, 
and  were  rejected  by  Its  aistomers,  and  set- 
tlement therefor  refused  by  its  said  custom- 
ers, and  It,  the  said  the  Arbuckle-Ryan  Com- 
pany, was  put  to  great  charges  and  expenses 
of  Its  moneys  In  and  about  the  repairing  of 
said  machines,  and  the  returning  of  said  ma- 
chines for  repair,  with  the  necessary  and  In-  • 
cidental  costs  of  freight  cartage,  and  of  new 
materials,  and  the  expense  of  making  the 
necessary  repairs  on  said  machines;  that 
said  the  Arbuckle-Ryan  Company  had  sold 
said  machines  to  Its  said  customers  at  a  large 


•For  other  csaea  see  s&m*  topic  and  section  NUMBER 
122N,W.— 41 


In  Dec.  ft  Am.  Diss.  1907  t«  datt,  ft  Reporter  IndexM 


Digitized  by  VjOOQ  l€ 


642 


122  NOBTHWBSTEBM  BEPOBTBB. 


(MICb. 


profit  0T6r  and  abQTe  the  price  at  which  It 
bad  purchased  same  from  said  defendant; 
that  said  the  Arbuckle-Ryan  Company,  la 
order  to  Induce  Its  said  customers  to  retain 
and  keep  said  machines,  and  to  dispose  of 
said  machines,  was  compelled  to  resell  said 
machines  after  making  said  repairs  at  a  re- 
duced price,  and  thereby  lost  large  gains 
and  profits ;  that  the  loss  and  damage  to  the 
said  the  Arbuckle-Ryan  Company,  as  afore- 
said. In  whole  amounts  to  a  large  sum  of 
money,  to  wit,  the  sum  of  f4,600." 

The  second  count  alleges  as  to  the  ma- 
chines purchased  under  the  agreem^it  of  De- 
cember 26th:  "The  said  defendant  under- 
took, and  then  and  there  faithfully  promised 
the  said  the  Arbuckle-Ryan  Company,  to  de- 
liver to  said  the  Arbuclde-Ryan  Company 
said  machines  within  a  short,  reasonable 
time  thereafter,  and  faithfully  promised  the 
said  the  Arbuckle-Ryan  Company  that  said 
machines  and  equipment  so  sold  were  and 
would  be  tree  from  inherent  and  mechanical 
defects,  and  suitable  for  the  purposes  for 
which  they  were  Intended;  •  •  •  that 
the  said  machines  at  the  time  of  the  making 
of  said  promise  and  undertaking  of  said  de- 
fendant, and  at  the  time  of  the  delivery  of 
said  machines,  were  not  free  from  Inherent 
and  mechanical  defects,  but,  on  the  contrary 
thereof,  were  Inherently  and  mechanically 
defective^  and. were  constructed  from  poor 
and  rotten  wood,  and  poor  and  defective 
castings  and  materials,  and  were  unsuit- 
able for  the  purposes  for  which  they  were 
Intended.  And  the  said  plaintiff  avers  that, 
the  said  the  Arbuckle-Ryan  Company  confid- 
ing In  the  said  promise  and  undertaking  of 
the  defendant  as  aforesaid,  it,  the  said  the 
Arbuckle-Ryan  Company,  had  through  Its 
salesmen  and  agents  sold  and  delivered  said 
machines  to  its  customers  In,  to  wit,  the 
state  of  Michigan  and  elsewhere,  extend- 
ing credit  to  Its  said  customers,  for  the  pur- 
chase price  of  the  machines  so  sold  to  them ; 
that  for  the  reasons  aforesaid  the  said  ma- 
chines became  and  were  of  no  use  or  value  to 
the  said  the  Arbuckle-Ryan  Company,  or  to 
Its  said  customers,  and  were  rejected  by  Its 
said  customers,  and  settlement  therefor  re- 
fused by  Its  said  customers,  and  It  the  said 
the  Arbuckle-Ryan  Company  was  put  to 
great  charges  and  expenses  of  its  moneys 
in  and  about  the  repairing  of  said  machines, 
and  the  returning  of  said  machines  for  re- 
pair, with  the  necessary  and  Incidental  costs 
of  freight,  cartage,  and  of  new  materials, 
and  the  expense  of  making  the  necessary  re- 
pairs on  said  machines,  and  other  expenses; 
that  the  said  the  Arbudile-Ryan  Company 
had  sold  said  machines  to  its  said  customers 
'  at  a  large  profit  to  It  over  and  above  the 
price  at  which  it  had  purchased  same  from 
said  defendant ;  that  said  the  Arbuckle-Ryan 
Company  in  order  to  induce  its  said  custom- 
ers to  retain  and  keep  said  machines,  and 
to  dispose  of  said  machines,  was  compelled  to 
resell  said  machines  after  making  said  re- 


pairs at  a  reduced  price,  and  tbereby  lost 
large  gains  and  profits;  that,  on  account  of 
the  delay  and  refusal  of  said  defendant  to 
ship  said  machines  as  It  had  promised.  It, 
the  said  the  Arbuckle-Ryan  Company,  lost 
divers  sales  and  the  gains  and  profits  which 
It  would  have  made  thereon;  that  the  loss 
and  damage  to  the  said  the  Arbuckle-Ryan 
Company,  as  aforesaid,  in  whole  amounts  to 
a  large  sum  of  money,  to  wit,  the  sum  of 
$4,500." 

The  third  count  covers  purchases  under 
both  agreements,  and  contains,  among  other 
allegations,  the  following :  "The  said  defend- 
ant undertook,  and  then  and  there  faithfully 
promised  the  said  the  Arbuckle-Ryan  Com- 
pany, to  furnish  all  the  necessary  new  mate- 
rial to  fix  up  and  repair  said  defective  and 
broken  machines,  and  to  send  men  to  each 
place  where  said  machines  had  been  sold  and 
were  located  to  thoroughly  repair  said  ma- 
chines, so  that  they  would  be  satisfactory  to 
the  customers  to  whom  they  had  been  sold  by 
the  said  the  Arbuckle-Ryan  Company,  and 
then  and  there  faithfully  promised  the  said 
the  Arbuckle-Ryan  Company  to  deliver  to 
said  the  Arbuckle-Ryan  Company  said  ma- 
chines within  a  short,  reasonable  time  there- 
after, and  faithfully  promised  the  said  plain- 
tiff that  said  machines  then  and  there  order- 
ed and  purchased  and  their  equipment  were 
and  would  be  free  from  inherent  and  me- 
chanical defects,  and  suitable  for  the  pur- 
poses for  which  they  were  Intended ;  •  •  • 
that  nevertheless  the  said  defendant,  con- 
triving and  fraudulently  Intending  to  Injure 
the  said  the  Arbuckle-Ryan  Company  did  not 
perform  its  said  promises  and  undertakings 
by  It  so  made  as  aforesaid,  and  did  not  de- 
liver said  machines  within  a  short  reason- 
able time  as  it  had  promised,  and  did  not 
furnish  all  the  necessary  new  materials  to 
fix  up  and  repair  said  defective  machines, 
and  did  not  send  men  to  repair  said  beaners, 
or  repair  them  to  the  satisfaction  of  said 
customers,  but  neglected  and  refused  to  keep 
its  Bald  promise  in  this  regard,  and  thereby 
craftily  and  subtly  deceived  and  defrauded 
the  said  the  Arbuckle-Ryan  Company,  In 
this,  to  wit:  That  the  said  machines  which 
were  delivered  after  the  time  of  the  making 
of  the  said  promises  aforesaid  at  said  time 
and  at  the  time  of  the  delivery  of  said  ma- 
chines were  not  free  from  Inherent  and  me- 
chanical defects,  but,  on  the  contrary  there- 
of, were  inherently  and  mechanically  defec- 
tive, and  were  constructed  from  poor  and 
rotten  wood,  and  poor  and  defective  castings 
and  materials,  and  were  unsuitable  for  the 
purposes  for  which  they  were  intended.  And 
the  said  plaintiff  avers  that  the  said  the  Ar- 
buckle-Ryan Company,  confiding  In  the  said 
promise  and  undertaking  of  the  defendant 
as  aforesaid,  had  through  its  salesmen  and 
agents  sold  and  delivered  to  Its  customers  In, 
to  wit,  the  state  of  Michigan  and  elsewhere, 
extending  credit  to  .its  sal^  customers  for  the 
purchase  price  of  said  machines  so  sold  to 


Digitized  by  VjOOQ  l€ 


lUdL} 


8H0WBN  T.  J.  U  OWENS  CO. 


MS 


them;  that,  tor  the  reaBoiu  aforesaid,  the 
said  machines  became  and  were  of  no  use  or 
value  to  the  said  the  ArbucUe-Ryan  Com- 
pany, or  to  Its  said  customers,  and  were  re- 
jected by  Its  said  customers,  and  settlement 
therefor  refused  by  Its  said  customers,  and 
It,  the  said  the  Arbnckle-Ryan  Company,  was 
put  to  great  charges  and  expenses  of  Its 
moneys  in  and  about  the  repairing  of  said 
machines,  and  the  returning  of  said  machines 
for  repair,  with  the  necessaries  and  incident- 
al costs  of  freight,  cartage  and  of  new  mate- 
rial, and  the  expense  of  mwMng  the  neces- 
sary rqiairs  on  said  machines  and  other  ex- 
pense; that  the  said  the  ArbncUe-RTon 
Company  had.  sold,  said  marhines  to  Its  said 
customers  at  a  large  profit  to  it  over  and 
above  the  price  at  which  it  had  purchased 
same  from  the  said  defendant;  that  the 
said  the  Arbuckle-Ryan  Company,  in  order 
to  Induce  its  said  customers  to  retain  and 
keep  said  machines,  and  to  dispose  of  said 
machines,  was  compelled  to  resell  said  ma- 
chines after  making  said  repairs  at  a  reduced 
price,  and  thereby  lost  large  gains  and  prof- 
its ;  tliat,  on  account  of  the  delay  and  refus- 
al of  said  defendant  to  alilp  said  madiines 
as  it  bad  promised,  the  said  the  Arbuckle- 
Ryan  Company  lost  divers  sales,  and  the 
gains  and  profits  which  It  would  hare  made 
thereon,  and,  on  account  of  the  depreciated 
value  and  the  worthlessness  of  said  ma- 
chines, said  the  Arbnckle-Ryan  Company  suf- 
fered the  loss  of  large  sums  of  money  which 
It  paid  the  said  defendant  in  the  purchase 
of  said  machines ;  that  the  loss  and  damage 
to  the  said  the  Arbnckle-Ryan  Company,  as 
aforesaid,  in  whole  amounted  to  a  large  sum 
of  money,  to  wit,  the  sum  of  |9,000." 

On  the  zeth  day  of  May,  1908,  defendant 
filed  a  plea  In  abatement  setting  forth,  in 
substance,  that  the  cause  of  action  set  forth 
in  plaintlfTs  declaration  did  not  accrue  with- 
in the  state  of  Michigan,  but  In  the  state  of 
Minnesota  or  Ohio,  and  that,  tberefore,  the 
circuit  court  for  the  county  of  Kent  had  no 
Jarisdlction  over  said  cause  of  action.  On 
the  16th  day  of  May,  1906,  the  defendant 
filed  a  petition  In  said  circuit  court  asking 
tor  a  dissolution  of  the  writ  of  attachment, 
denying  that  there  was  any  Indebtedness 
wliatever  existing  between  the  defendant 
and  the  said  Arbuckle-Ryan  Company  or  its 
assignee,  the  said  John  Ll  Showen,  and  that 
the  sole  and  only  rights  of  the  said  John  K 
Showen  are  such  as  he  may  have  by  reason 
of  his  assignment  of  the  Interest'  and  title  of 
the  said  Arbuckle-Ryan  Company  in  the 
aforementioned  contracts,  and  that  the  na- 
ture of  the  Indebtedness,  If  any,  due  from 
the  defendant  to  the  said  Arbuckle-Ryan 
Company  or  Its  assignee  Is  wholly  and  en- 
tirely speculative,  unliquidated,  and  Indefi- 
nite in  itv  character  and  amount,  and  is  not 
capable  of  being  made  certain  or  definite, 
and  is  not  such  a  claim  of  Indebtedness  as 
Is  contemplated  by  the  statute  In  attachment 
proceedings.    In  answer  to  the  plea  in  abate- 


ment, plaintiff  filed  his  own  aiSdaTlt,  stat- 
ing, among  other  things,  as  follows:  "Af- 
fiant further  says  that  he  Is  acquainted  with 
Benjamin  F.  Long,  the  party  referred  to  in 
the  third  paragraph  of  said  plea,  and  has 
been  acquainted  with  him  for  some  years, 
and  knows  the  business  In  which  he  has 
been  engaged;  that  at  the  time  said  suit 
was  commenced,  and  for  some  time  thereto- 
fore, the  said  Benjamin  F.  Long  resided 
with  his  family  in  the  dty  of  Grand  Rapids, 
In  said  county,  and  was  at  that  time  and  for 
some  months  at  least  before  the  commence- 
ment of  said  suit  engaged  as  the  agent  or 
representative  of  the  J.  L.  Owens  Company 
of  Minneapolis,  Minn.,  in  the  sale  of  its 
bean  threshers,  and  the  handling  of  its  busi- 
ness in  the  state  of  Michigan;  that  he  knows 
from  his  association  with  and  observation 
of  the  business  done  by  said  Long,  affiant 
being  engaged  in  a  similar  line  of  business 
as  agent  and  representative,  that  the  busi- 
ness of  the  said  Long  as  agent  and  repre- 
sentative of  the  J.  L.  Owens  Company  as 
aforesaid  in  the  state  of  Midilgan  was  to 
make  sales  and  take  orders  for  bean  thresl^ 
ers  sold  by  the  said  J.  Jj.  Owens  Company 
In  the  usual  manner  and  upon  the  usual 
terms  and  custom  in  relation  to  such  busi- 
ness, and  that  it  was  also  a  part  of  the  busi- 
ness of  the  said  Long  as  the  agent  and  rep- 
resentative, as  aforesaid,  to  negotiate  and 
make  contracts  with  local  agents  In  towns 
In  the  state  of  Michigan  on  bebalf  of  the 
said  J.  L.  Owens  Company  for  the  sale  ot 
bean  threshers  in  local  territories,  and  In  a 
general  way  to  look  after  the  business  of 
said  J.  L.  Owens  Company  as  such  agent 
and  representative,  in  accordance  with  the 
general  custom  of  such  agents." 
.  The  issue  raised  by  the  plea  In  abatement 
and  the  petition  to  dissolve  the  attachment 
were  submitted  to  the  court,  and  the  court 
dismissed  the  petition  and  overruled  the 
plea.  On  defendant's  application,  a  writ  of 
certiorari  was  Issued  out  of  this  court,  and 
the  record  Is  before  us  for  review.  The  re- 
turn of  the  circuit  Judge  In  part  Is  as  fol- 
lows: "I  further  show  and  return  to  said 
writ  that  at  the  time  of  the  hearing  and  ar- 
gument upon  the  plea  to  the  Jurisdiction  in 
said  cause,  and  upon  the  petition  for  the  dis- 
solution of  the  writ  of  attachment  In  said 
cause,  it  appeared  from  the  pleadings  and 
affidavits,  all  of  which  are  attached  hereto, 
and  I  found  therefrom  as  a  matter  of  fact 
that  at  the  time  of  the  commencement  of 
said  suit  and  the  service  of  the  writ  of  at- 
tachment therein  the  said  defendant  com- 
pany had  goods  and  property  In  said  coun- 
ty and  state  for  sale  In  the  regular  course 
of  Its  business;  that  one  Benjamin  F.  Long, 
upon  whom  the  said  writ  was  personally 
served,  as  shown  by  the  return  thereto, 
was  a  resident  of  the  city  of  Grand  Rap- 
ids,  In  said  county,  and  was  acting^  gener- 
ally as  the  agent  and  representative*  of  the 
said  defendant  company  in  the  sale  of  Its 


Digitized  by  VjOOQ  l€ 


.644 


122  MOBTHWESTEBN  BBPOBTEB. 


dOcb. 


goods  and  the  bandllng  of  Its  buBlnesa  In 
■aid  county  and  state,  and  that  at  the 
time  of  the  serrlce  of  said  writ  the  said 
defendant  company  was  and  for  a  consid- 
erable period  of  time  had  been,  through 
Its  said  agent  and  otherwise,  doing  business 
generally  with  the  citizens  of  said  county 
and  state  in  the  sale  of  Its  products,  and 
had  merchandise  and  property,  consisting  of 
bean  threshers  manufactured  by  it,  in  said 
county  and  state  for  the  purpose  of  carry- 
ing on  Its  said  business  therein.  I  there- 
upon held  that  the  court  by  the  service  of 
said  writ  acquired  and  had  Jurisdiction  in 
said  cause,  as  shown  by  the  orders  duly 
made  and  filed  therein." 

Two  principal  Questions  are  presented  for* 
our  consideration  by  the  briefs  of  counsel; 
First.  Did  the  court  acquire  jurisdiction  over 
the  defendant,  a  foreign  corporation,  the 
cause  of  action  having  accrued  outside  of 
the  state?  Second.  Is  the  amount  of  the  In- 
debtedness or  damages  as  stated  in  the  dec- 
laration so  uncertain,  speculative,  and  con- 
jectural as  to  exclude  the  remedy  by  at- 
tachment? 

First  Since  there  was  no  method  for  sa- 
ing  a  corporation  at  common  law  outside  of 
Its  home  Jurisdiction,  it  is  argued  that  the 
right  to  maintain  the  present  action  must 
depend  upon  statutory  authority.  Defend- 
ant contends  that  such  authority  can  be 
found  only  in  section  10,442,  Comp.  Laws, 
which  provides,  as  follows:  "(10442)  Section 
1.  The  people  nf  th«»  atntit  nt  Michigan  en- 
act that  suits  may  be  comp"'"^*^  «*  »«w  or 
in  equity  In  the  circuit  cof^^  <*<"•  f»"r  onnn- 
^  of  this  state  where  tne  ptelntlg.  rP"''^"" 
or  flervlce  of  Process  may  Btjad  and  suits 
aHsw,  before  jnatioes  of  tnrpeace  in  such 
county;  and  In  cases  where  the  plaintiff  is 
a  nonresident  In  any  county  of  the  etajEe. 
atwIBSntny  Cbntaratlon  not  organized  under 
the  laws  of  this  state  In  all  cases  where  the 
cansB  of  action  accrues  within  the  state  of 
Mif-hlgan,  hy  hctyIpr  of  a  summons,  declara- 
tlon  or  chancery  subpoena  within  the  state 
of  Michigan,  upon  any  officer  or  agent  of 
the  corporation,  or  upon  the  conductor  of 
any  railroad  train,  or  upon  the  master  of 
any  vessel  belonging  to  or  in  the  service  of 
the  corporation  against  which  the  cause  of 
action  has  accrued:  Provided,  That  in  all 
cases,  except  before  Justices  of  the  peace, 
no  Judgment  shall  be  rendered  for  sixty 
days  after  the  commencement  of  suit,  and 
the  plaintiff  shall,  within  thirty  days  after 
commencement  of  suit,  send  notice  by  reg- 
istered letter  to  the  corporation  defendant 
at  its  home  office."  Counsel  for  plaintiff 
argue  that  section  10i442,  Comp.  La^v's, 
■mmlj  liitj  mi\y  to  for- 


shouia  be  L'uusti 

elgn  CQrjBpratlOPS  engagH  *"  '"taratafg  rnrn. 

merce  tvniiHnpHniTH~wlthln  tl^e  qtate.  and  nqt^ 
to  foreign  corporations  dolnp  buBlness  In  the 
atote  "tFrou'gh  residerit  agents  and  feaTIy 
domiciled  In  a  hnsinpaa  Ronsft  -tylthlnJAB 
atRta.     It  t«  fiirthpr  pontpiidpd  that  the  pr<P 


visions  of  section  10,468,  Comp.  La^mi,  are 
applicable  to  foreign  corporations  actually 
doing  business  In  this  state  as  well  as  to  do- 
mestic corporations.  Defendant  insists  that 
this  latter  contention  is  disposed  of  by 
our  previous  decisions.  Grand  Trunk  Ry. 
Co.  V.  Circuit  Judge,  106  Mich.  248,  64  N. 
W.  17,  and  cases  cited  therein.  We  do  not 
regard  these  decisions,  however,  as  necessa- 
rily disposing  of  the  question  under  consid- 
eration. In  People  v.  Hawkins,  106  Mich. 
479,  64  N.  W.  736,  decided  soon  after  the 
decision  In  Grand  Trunk  By.  Co.  v.  Wayne 
Circuit  Judge,  supra,  it  was  held  that  the 
section  of  the  act  relating  to  the  incorpora- 
tion of  manufacturing  and  mercantile  asso- 
ciations which  provided  that  foreign  corpo- 
rations organized  for  any  of  the  purposes 
of  the  act  upon  recording  their  articles  of 
association  and  appointing  a  resident  agent 
for  service  of  process  might  carry  on  busi- 
ness in  this  state  and  enjoy  all  the  rights 
and  privileges  and  be  subject  to  all  the  re- 
strictions and  liabilities  of  corporations  ex- 
isting under  said  act  did  not  prohibit  for- 
eign corporations  from  doing  business  in  this 
state  until  they  had  complied  with  such  con- 
ditions or  Invalidate  their  contracts.  As 
said  by  Justice  Gray  in  Barrow  S.  S.  Co.  ▼. 
Kane,  170  U.  S.  100,  18  Sup.  Ct  626,  42  li. 
Ed:  964:  "The  constant  tendency  of  Judicial 
decisions  in  modem  times  has  been  in  the 
direction  of  putting  corporations  upon  the 
same  footing  as  natural  persons  In  regard 
to  the  Jurisdiction  of  suits  by  or  against 
them."  See,  also.  Reeves  v.  Southern  B.  R. 
Co.,  121  Ga.  661,  49  S.  B.  674,  70  L.  B.  A. 
613.  We  think  this  tendency  is  reflected  In 
our  statutes  upon  this  snbject  enacted  since 
the  decision  In  106  Mich.  248,'  64  N.  W.  17. 
By  Act  No.  206,  p.  316,  Pub.  Acts  1901, 
the  terms  and  conditions  on  which  foreign 
corporations  might  be  admitted  to  do  busi- 
ness In  Michigan  were  prescribed,  and. 
among  other  things,  they  were  required  to 
appoint  an  agent  in  this  state'  to  accept 
service  of  process,  and  failure  to  comply 
with  the  provisions  of  the  act  subjected  the 
offending  corporation  to  heavy  penalties. 
Upon  compliance  with  the  provisions  of  the 
act,  the  corporation  was  authorised  to  carry 
on  Its  business  for  the  time  set  forth  in  its 
chartor  or  articles  of  association  unless  long- 
er than  contemplated  by  the  laws  of  this 
state.  This  act  (section  1)  was  amended  in 
1903  (Pub.  Acts  1903,  p.  40,  No.  34)  and  at 
the  regular  and  special  sessions  of  1907 
(Pub.  Acts  1907,  p.  413,  No.  310;  Ex.  Sess. 
p.  9,  No.  3).  By  the  amendatory  act  passed 
at  the  regular  session  of  1907,  it  was  made 
unlawful  for  any  foreign  corporation  to 
transact  Its  business  in  this  state  "until  it 
shall  have  procured  from  the  Secretary  of 
State  of  this  state  a  certificate  of  authority 
for  that  purpose."  Among  other  things  nec- 
essary to  the  procurement  of  such  certif- 
icate, it  must  file  evidmce  of  the  appoint- 
i  ment  of  an  agent  in  this  state  to  accept 


Digitized  by  VjOOQ  l€ 


MldL) 


8H0WEN  T.  J.  L.  0WBN8  00. 


645 


service  of  process  on  bdliaU  of  the  corpora- 
tion. The  certificate  of  authority  authorizes 
the  corporation  to  carry  on  Its  business  in 
this  state  for  the  period  of  Its  corporate  ex- 
istence, but  not  to  exceed  30  years.  "And 
the  Secretary  of  State  shall  in  the  certificate 
which  he  Issues  state  under  what  act  such 
corporation  Is  to  carry  on  business  In  this 
state  and  such  corporation  shall  have  all 
the  powers,  rights,  and  privileges,  and  be 
subject  to  all  the  restrictions,  requirements, 
and  duties  granted  to  or  Imposed  upon  cor- 
porations organized  under  such  act"  By 
section  6  a  failure  to  comply  with  the  act 
Invalidates  all  contracts.  By  section  7  it  Is 
made  unlawful  for  any  person  to  act  as 
agent  for  an  unauthorized  company  and  any 
person  violating  this  provision  is  made 
guilty  of  a  misdemeanor.  By  section  5  of 
the  amendatory  act  passed  at  the  special 
session  of  1907  failure  to  comply  with  the 
provisions  of  the  act  subjects  the  corpora- 
tion to  a  penalty  of  not  less  than  $100  nor 
more  than  $1,000  per  month.  Section  10 
reads  as  follows:  "Sea  10.  No  such  corpo- 
ration having  appointed  an  agent  to  accept 
service  of  process  shall  have  power  to  re- 
voke or  annul  such  appointment  until  it 
shall  have  filled  <filed)  notice  of  appoint- 
ment of  some  other  person  In  this  state  as 
such  agent  Service  of  process  may  also  be 
made  upon  any  officer  or  agent  of  such  cor- 
poration in  this  state,  or  service  may  be 
made  upon  the  Secretary  of  State,  who  shall 
Immediately  notify  the  corporation  thus 
served,  by  mailing  notice  thereof  and  a  copy 
of  such  process  to  Its  address.  There  shall 
be  paid  to  the  Secretary  of  State  at  the  time 
of  such  service  a  fee  of  five  dollars,  which 
sum  may  be  taxed  as  costs  to  the  plaintiff 
In  case  he  prevails  In  the  proceeding."  Sec- 
tion 13,  Act  No.  232,  p.  874,  Pub.  Acts  1903, 
being  the  act  to  revise  and  consolidate  the 
laws  providing  tor  the  incorporation  of  man- 
ufacturing and  mercantile  companies,  etc., 
reads  as  follows:  "Sec.  13.  Every  corpora- 
tion organized  or  existing  under  this  act 
Shall  have  power  to  have  succession  by  Its 
corporate  name  for  the  period  limited  in  its 
charter,  or  by  this  act;  to  sue  and  be  sued 
in  any  court  of  law  or  equity,  with  the  same 
rights  and  obligations  as  a  natural  person; 
to  make  and  use  a  common  seal  and  alter 
the  same  at  pleasure;  to  ordain  and  establish 
by-laws  for  the  government  and  regulation 
of  its  affairs,  and  to  alter  and  repeal  the 
same;  to  elect  all  necessary  officers  and  to 
appoint  and  employ  such  agents  as  the  busi- 
ness may  require."  The  effect  of  the  stat- 
utes regulating  the  transaction  of  local  busi- 
ness in  this  state  by  foreign  corporations 
is  to  make  such  corporations  as  to  such  busi- 
ness domestic  corporations  organized  under 
the  act  specified  In  the  certificate  of  the  Sec- 
retary of  State  entitled  to  and  subject  to 
the  same  remedies  as  such  corporations  In 
the  courts  of  this  state.  We  are  of  the  opin- 
ion, therefore^  that  section   10,442,   Comp. 


Laws,  should  be  limited  In  its  application 

to  foreign  corporations  transacting  Interstate 
commerce  business  In  this  state.  Barrow  S. 
S.  Oo.  V.  Kane,  supra.  The  court  found,  and 
the  evidence  warranted  the  finding,  that  the 
defendant  through  Its  agent  was  transacting 
local  business  in  the  state,  and  the  fact  that 
such  business  upon  the  showing  made  was 
unlawful  should  not  relieve  the  defendant, 
but  It  should  be  held  to  assent  to  the  same 
remedies  which  would  have  attached  If  it 
had  done  the  business  lawfully.  It  Is  estop- 
ped to  set  up  in  Its  defense  the  unlawfulness 
of  Its  transactions.  Ehrman  v.  Insurance 
Co.  (D.  C.)  1  Fed.  471;  Hagerman  v.  Em- 
pire Slate  Oo.,  97  Pa.  684;  Sparks  v.  Acci- 
dent Ass'n,  100  Iowa,  458,  09  N.  W.  678; 
La  Fayette  Ins.  Co.  v.  French,  18  How.  404» 
15  L.  Ed.  451.  Under  our  attachment  stat- 
utes, also,  service  of  the  writ  upon  defend- 
ant's resident  agent  conferred  jurisdiction 
In  personam.  8  Comp.  Laws,  Si  10,474,  10,- 
555,  10,556,  10,559,  10,560,  10,571,  10,576; 
St  Clalr  V.  Cox,  106  U.  8.  850,  1  Sup.  Ct 
354,  27  L.  Ed.  222;  Davidson  v.  Fox,  120 
Mich.  886,  79  N.  W.  1106. 

Second.  It  was  said  In  Roelofson  v.  Hatch, 
3  Mich.  277:  "There  may  be  cases  of  con- 
tracts not  within  this  remedy,  as  for  ex- 
ample a  breach  of  promise  to  marry,  where 
the  damages  rest  so  entirely  in  opinion  that 
It  would  be  a  solecism  to  say  the  amount 
of  Indebtedness  could  be  sworn  to.  But, 
again,  there  are  many  contracts  where,  al- 
though the  damages  are  not  liquidated  In 
the  contract,  yet  by  weU-establlshed  rules 
of  law  they  are  capable  of  being  ascertained 
definitely  upon  -proof  of  the  facts,  and  to 
hold  that  In  all  this  class  of  cases  the  plain- 
tiff Is  debarred  of  this  remedy  would  be  to 
defeat  In  a  great  measure  the  purposes 
sought  to  be  secured  by  Its  enactment  The 
plaintiff  Is  required  to  sweat  that  the  de- 
fendant is  Indebted  to  him  upon  contract, 
express  or  implied,  and  to  state  the  amount 
of  such  Indebtedness,  as  near  as  may  be, 
over  and  above  all  set-offs.  What  is  an  In- 
debtedness? It  is  the  owing  of  a  sum  of 
money  upon  a  contract  or  agreement  and, 
in  the  common  understanding  of  mankind, 
it  Is  not  less  an  indebtedness  that  such  sum 
Is  uncertain.  The  result  of  a  contrary  doc- 
trine would  be  to  hold  any  liability  which, 
could  only  be  the  subject  of  a  general  In- 
debltatuB  assumpsit  quantum  meruit,  or 
quantum  valebant  count  In  a  declaration, 
such  an  Indebtedness  as  could  not  be  the 
subject  of  this  remedy  by  attachment. 
Without  fully  deciding  this  point,  which  is 
not  necessarily  raised  In  this  case,  we  see 
no  reason  why  a  demand  arising  ex  con- 
tractu, the  amount  of  which  Is  susceptible 
of  ascertainment  by  some  standard  referable 
to  the  contract  itself,  sufilciently  certain  to 
enable  the  plaintiff,  by  affidavit,  to  aver  it 
'as  near  as  may  be,'  or  a  jury  to  find  it,  may; 
not  be  a  foundation  of  a  proceeding 'by  at- 
tachmmt    See  Fisher  t.  Consequa,  2  Wash, 


Digitized  by  LjOOQ  l€ 


640 


122  NOBTHWESTERN  REPORTEB. 


i&D. 


C  a.  882,  Fed.  Ooi.  No.  4,816;  Caork's  Bx'rs 
T.  Wilson,  8  Wash.  0.  O.  B60,  Fed.  Cas. 
No.  2341."  We  are  unable  to  find  that 
this  question  has  since  been  presented  to 
this  court  We  hold,  however,  that  the 
views  of  the  court  stated  arguendo  in  the 
Roelofson  Oase  correctly  state  the  law,  and 
Justify  the  ruling  of  the  circuit  court  The 
amount  of  the  damages  In  this  case,  while 
unliquidated.  Is  susceptible  of  ascertainment 
by  a  standard  referable  to  the  contract 
The  standard  established  by  the  contract 
was  that  specified  machines  sold  for  a  spec- 
ified price  should  be  free  from  Inherent  and 
mechanical  defects.  The  declaration  alleges 
that  the  machines  were  not  free  from,  but 
possessed,  such  defects,  that  they  wore  sold 
at  a  profit,  but  on  account  of  the  defects 
were  returned,  were  repaired,  and  resold  at 
a  reduced  price.  While  some  of  the  dam- 
ages claimed  in  the  declaration  were  prob- 
ably too  Indefinite  and  speculative  to  admit 
of  the  r^nedy  by  attachment,  in  the  main, 
the  damages  claimed  were  susceptible  of 
definite  ascertainment  by  testimony.  Baum- 
gardner  v.  Dowaglac  Mfg.  Co.,  60  Minn.  881, 
62  N.  W.  964;  Lawton  v.  Kiel,  51  Barb.  (N. 
T.)  30;  Weaver  v.  Puryear,  11  Ala.  941; 
New  Haven,  etc..  Co.  y.  Fowler,  28  Conn. 
103;  Hyman  v.  Newell,  7  Colo.  App.  78,  42 
Pac.  1016. 

We  are  also  of  the  opinion  that,  under 
the  showing  made  In  tbis  case,  the  plaintiff 
was  entitled  to  maintain  his  suit  as  as- 
Bignee.  McBrlde  v.  Bank,  26  N.  T.  460; 
Hadden  et  al.  v.  Dooley  et  al.,  92  Fed.  274, 
84  C.  C.  A.  338;  Felt  T.  Beynolds,  etc.,  Co., 
52  Mich.  602,  18  N.  W.  378;  Henderson  v. 
Det,  etc..  By.  Co.,  131  Mich.  438,  91  N.  W. 
630. 

The  orders  of  the  circuit  court  are  af- 
firmed, and  the  writ  dismissed,  with  costs 
to  plaintiff. 


WILLIAMS  BROS.  LUMBEB  CO.  v.  EELLT 
et  al. 

(Supreme  Court  of  South  Dakota.    Sept.  8, 
1900.) 

Appeal  and  Ebbob  (|  753*)— AssioniiBitT  or 
Ebrobs— Necessity— CODET  Bules. 

Supreme  Court  rule  11,  providing  that  ap- 
pellant in  civil  actions  and  proceedings  shall 
append  to  and  print  with  his  abstract  an  as- 
ngnment  of  erroiB,  stating  as  specifically  as  the 
case  will  allow  the  errors  objected  to,  and  only 
such  as  he  expects  to  rely  on  and  ask  the  court 
to  examine,  is  mandatory ;  and  hence,  in  the 
absence  of  an  assignment  of  errors  so  filed,  the 
judgment  will  be  affirmed. 

[E^.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  St  3086-3089;  Dec.  Dig.  g 
753.»] 

Appeal  from  Circuit  Court;  Marshall 
County. 

Action  by  the  Williams  Bros.  Luml)er 
Company   against  J.   F.   Kelly  and  others. 


Judgment  for  plaintiff,  and  defendants  ap- 
peaL    Affirmed. 

Byron  Abbott  and  Otto  L.  Eaas,  for  appel- 
lants.   Sears  A  Potter,  for  respondent 

COBSON,  J.  This  case  comes  before  us 
on  an  appeal  from  the  Judgment  and  order 
denying  a  new  trial.  The  respondent  has 
filed  in  the  court  the  following  additional 
or  amended  abstract,  in  which  It  Is  alleg- 
ed: (1)  That  the  record  shows  that  no  as- 
signments of  error  have  been  made  or  filed  in 
this  court  by  appellant  (2)  That  appellant 
moved  for  a  new  trial,  and  has  not  assigned 
any  error  upon  the  overruling  of  such  mo- 
tion. (3)  That  appellant  has  not  on  this 
appeal  pointed  out  or  specified  any  errors 
committed  by  the  trial  court 

An  examination  of  the  record  discloses 
that  the  statement  made  In  the  additional 
or  amended  abstract  Is  correct,  and  that 
there  are  no  assignments  of  errors  filed  in 
this  court  or  set  out  In  the  abstract  By 
rule  11  of  this  court  it  Is  provided:  "In  civil 
actions  and  proceedings  the  appellant  shall 
append  to  and  print  with  his  abstract  an  as- 
signment of  errors,  which  assignment  need 
follow  no  stated  form,  but  must,  In  a  way 
as  specific  as  the  case  will  allow,  point  out 
the  errors  objected  to,  and  only  such  as  be 
expects  to  rely  on  and  ask  this  court  to 
examine.  •  •  • "  This  rule  of  the  court 
is  mandatory,  and  must  be  complied  with, 
and,  unless  complied  with,  the  judgment  of 
the  court  below  must  be  affirmed.  In  2  Enc. 
Pi.  &  Prac.  922,  the  law  applicable  to  this 
question  Is  thus  stated:  "It  is  generally 
said  that  the  assignment  of  errors  in  the 
appellate  court  is  Just  as  essential  as  tbe 
declaration  or  complaint  in  the  lower  court 
It  is  jurisdictional,  and  cannot  be  dispensed 
with  by  agreement  of  the  parties.  Without 
It  the  court  has  no  means  of  knowing  what 
rulings  are  presented  for  Its  review,  and  In 
fact  has  nothing  before  It"  And  a  number 
of  authorities  are  cited  In  support  of  this 
position.  It  Is  further  said:  "The  failure  to 
file  an  assignment  of  errors  must  consequent- 
ly entail  an  affirmance  of  the  Judgment  or 
decree,  or  a  dismissal  of  the  appeal."  State 
v.  Brown  (Md.)  16  Atl.  722;  McKinnon  v. 
Atkins,  60  Mich.  418,  27  N.  W.  664;  Berg  ▼. 
Bishop,  39  Mo.  356;  Stanton  v.  Slabaugh 
(Mo.)  11  S.  W.  577;  McLeod  v.  Dickenson,  11 
Mont  438,  28  Pac.  551;  McNeil  v.  Kyle,  86 
Ala.  338,  6  South.  461;  Globe  Inv.  Go.  v. 
Boyum,  3  N.  D.  538,  58  N.  W.  339;  Buckley 
V.  Eaton,  60  111.  252;  Shaw  v.  Potter,  39 
Mo.  419;  Altman  v.  Wheeler  et  al.,  18  Mich. 
240;  Taylor  v.  Plummer,  105  N.  C.  56,  11  S. 
E.  266;  Rnsbfeldt  v.  Shave  et  al.,  87  Minn. 
282,  33  N.  W.  791;  Lancaster  et  al.  v.  Wauke- 
gan  &  Southwestern  Railway  Co.,  132  IIL 
492,  24  N.  E.  629.  And  in  no  event  can  this 
court  review  the  action  of  the  trial  court 
in  granting  or  denying  a  motion  for  a  new 


*For  otber  cases  see  same  topic  and  secUou  NUMBER  in  Dec.  *  Am.  Digs.  UOT  to  data,  ft  Reporter  Indexei 


Digitized  by  VjOOQ  l€ 


aD.) 


STATE  V.  MADISON. 


647 


trial,  nnleBB  the  granting  or  refusing  of  the 
motion  is  assigned  as  error.  Pierce  t.  Man- 
ning. 2  S.  D.  517,  51  N.  W.  332.  While  we 
cannot  agree  with  the  statement,  made  In 
2  EMc.  PI.  &  Prac.  822,  that  a  failure  to 
assign  error  Is  Jurisdictional,  we  are  never- 
thelesa  of  the  opinion  that  In  the  absence 
of  an  assignment  of  errors  this  court  Is  not 
required  to  review  the  proceedings  of  the 
conrt  below,  and  that  It  Is  our  duty  In  such 
case  to  affirm  the  Judgment  of  the  circuit 
court. 

The  Judgment  of  the  circuit  court,  and 
order  denying  a  new  trial,  are  affirmed. 

McCOY.  J.,  taking  no  part  In  this  decision. 


STATE  T.  MADISON. 

(Supreme  Court  of  South  Dakota.    Sept  3, 
1909.) 

1.  WrrwESSES  (|  349»)— CBOss-ExAinwATiON— 
Materialitt. 

The  court  did  not  err  in  refusing  to  per- 
mit the  state's  main  witness  in  a  prosecution 
for  selling  intoxicating  liquors  witnout  a  li- 
cense to  be  cross-examined  with  reference  to  his 
possession  of  other  bottles  of  whisky  than  that 
m  issue  claimed  to  have  been  purchased  from 
defendant  at  the  time  stated  In  vxe  information. 
[Ed.  Note.— For  other  cases,  see  'Witnesses, 
Cent.  Dig.  a  1135-1139 ;   Dec  Dig.  (  349.*] 

2.  WiTNESBis  (I  872*)— GBOSS-EzAiaRAiioit— 
Bias. 

Where,  In  a  prosecution  for  illegally  sell- 
ing liquor,  the  state's  main  witness  testified  that 
he  received  $50  for  his  services  in  procuring 
the  bottle  of  whisky  claimed  to  have  been  Illegal- 
ly sold,  the  conrt  properly  refused  to  permit 
questions  on  cross-examination  to  show  that  the 
witness  was  not  working  regularly,  needed  mon- 
ey to  support  his  family,  and  had  applied  for 
county  aid. 

[Ed.  Note. — For  other  cases,   see  Witnesses, 
Cent.  Dig.  H  1192-1199 ;   Dec.  Dig.  {  372.*] 

S.  WrrRESSBS  (f  348*>— GBOss-ExAianATioir— 

Pbbjttdici. 

A  question  asked  of  a  witness  for  the  state 
on  cross-examination  as  to  whether  he  had  not 
been  a  liberal  patron  and  lounger  around  the 
saloons  and  caidrooms  in  the  city  for  several 
years  was  properly  excluded. 

[Ed.   Note.— For  other  cases,   see  Witnesses, 
Cent  Dig.  a  1135-1139 ;   Dec.  Dig.  {  349.*] 

4.  iwtoxicatino  llquobs  (|  234*)— evidbwck 

— Materialitv. 

Where  a  county  auditor  had  testified  that 
no  license  had  been  Issued  to  accused  authoriz- 
ing him  to  sell  liquors  in  the  city  of  6.  during 
the  year  in  which  the  liquor  in  question  was 
claimed  to  have  been  sold  by  him,  evidence  as 
to  defendant's  payment  for  a  license  was  imma- 
terial, in  the  absence  of  any  offer  to  show  that 
a  license  had  in  fact  been  issued  authorizing 
him  to  sell  in  G.,  and  had  been  accidentally  lost 
or  destroyed. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  (  29S;  Dea  Dig.  S  234.*] 

&   WrrNEBBES  (J  357*)— IlfPEACHMEWT— TBtnTH 

AWD  VEBAorrY— General  Reputation. 
Where  witnesses  testified  tltat  they  were 
acquainted  with  the  reputation  of  accused  in  the 
vidnity  in  which  be  lived,  and  that  it  was  bad, 
they  thereby  stated  In  effect  that  which  consti- 
tuted defendant's  general  reputation ;   and  hence 


the  evidence  was  not  inadmissible  because  the 
questions  did  not  call  for  the  "general"  reputa- 
tion of  accused. 

[Ed.  Note. — For  other  cases,  see  Witnesses, 
Cent  Dig.  |{  11.57-1138;   Dec.  Dig.  S  337.*] 

6.  Trial    (i    67*)- Ikpeaohiwo    WiTNESSEfr- 

LlmTATION  IN  NtniBER. 

Impeachment  of  a  witness  bein^  a  collat- 
eral issue,  the  court  did  not  err  in  limiting  the 
number  to  four  on  a  side. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  J  135 ;    Dec  Dig.  J  67.*] 

7.  Witnesses  (|  361*)  —  Chabacteb  —  Pbiob 
CoNvionoN— Explanation— Materiality. 

In  a  prosecution  for  selling  intoxicating 
liquor  without  a  license,  accused  having  testi- 
fied on  cross-examination  that  be  had  once 
pleaded  guilty  to  keeping  open  after  hours,  his 
explanation  thereof  tnat  It  was  the  offense  of 
his  bartender  committed  during  his  absence 
from  town  was  Immaterial  and  inadmisBible. 

[Ed.  Note. — For  other  cases,  see  Witnesses, 
Cent.  Dig.  {§  1167-1168 ;    Dec.  Dig.  i  361.*] 

8.  Intoxicating  Liquors  (8  249*)- Searches 
—"Shop"— "Place  of  Public  Resort." 

Where  intoxicating  liquors  are  kept  in  a 
dwelling  house  and  sales  are  made  therein,  it 
may  properly  be  regarded  as  a  shop  or  place 
of  public  resort  within  Laws  1907,  p.  Sra,  c. 
173,  {  8,  providing  that  no  warrant  shall  be 
issued  to  search  a  private  residence  occupied 
as  such  unless  it  or  some  part  of  it  is  used  aa 
a  store,  shop,  hotel,  or  boarding  house,  or  un- 
less such  residence  is  a  place  of  public  resort. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Dec  Dig.  i  249.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  7,  pp.  6493,  6494 ;   vol.  6,  pp.  5818,  5819.] 

9.  Criminal  Law  (8  895*)— Evidence  Ille- 
OALLT  Obtained— Unlawful  Seabch  and 
Seizure. 

Intoxicating  liquors  found  in  defendant's 
dwelling  house  pursuant  to  an  Illegal  search  and 
seizure  were  nevertheless  admissible  in  evidence 
against  him  in  a  prosecution  for  selling  liquor 
without  a  license. 

[Ed.  Note. — For  other  eases,  see  Criminal 
Law,  Cent  Dig.  {  877;   Dec.  Dig.  {  395.*] 

10.  Criminal  Law  (|  762*)— Instbuctions— 
Instructions  on  Facts. 

Where  it  was  not  disputed  in  a  prosecution 
for  selling  liquor  without  a  license  that  the  liq- 
uor introduced  in  evidence  was  found  pursuant 
to  a  search  and  seizure  in  defendant's  dwelling 
house,  and  the  testimony  of  the  county  auditor 
that  no  license  had  been  issued  to  defendant  au- 
thorizing him  to  sell  in  G.  during  the  year  in 
controversy,  an  instruction  that  it  was  undisput- 
ed that  on  the  day  of  the  alleged  sale  defend- 
ant had  in  his  possession  at  his  residence  in  G. 
a  quantity  of  intoxicating  liquors,  and  that 
the  undisputed  evidence  also  showed  that  de- 
fendant during  January,  1908,  did  not  have  a 
license  to  sell  liquors  at  retail  in  6.,  was  not 
objectionable  as  a  charge  on  the  facts,  in  viola- 
tion of  Code  Civ.  Proc.  }  256,  providing  that 
the  court  shall  only  instruct  the  jury  as  to  the 
law  of  the  case.  , 

[BJd.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  {§  1731-1769;  Dec  Dig.  { 
762.*] 

11.  Criminal  Law  (§  1186*)— Appeai/— Iw- 
8TBUCTI0NS— Impeachment  of  Witnesses. 

An  instruction  that  one  of  the  methods  for 
impeaching  a  witness  is  by  calling  others  to 
testify  that  they  are  acquainted  with  the  repu- 
tation of  the  witness  sought  to  be  impeached  for 
truth  and  veracity  in  the  neighborhood  where  he 
resides,  and  that  such  reputation  is  bed,  was 
not  prejudicially  erroneous  for  failure  to  limit 


•Tor  otber  eases  te*  same  tople  and  section  NUMBER  in  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  IndezM 


Digitized  by  LjOOQ  IC 


648 


122  NOBTHWESTBRN  BEPOBTER. 


<S.IX 


snch  evidence  to  "freneral"  reputation  under 
Code  Cr.  Proc  |  600,  providing  tliat  the  Su- 
preme Court  sliall  give  judgment  without  re- 
gard to  technical  errors  not  affecting  the  par- 
ties' substantial  rights. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  i  3219;   Dec.  Dig.  |  1186.»] 

Appeal  trom  Circuit  Court,  Brown  County. 

O.  C.  Madison  was  convicted  of  selling  in- 
toxicating liquors  without  a  license,  and  he 
appeals.    Affirmed. 

Crofoot  &  Harliin,  for  appellant  S.  W. 
Clarlc,  Atty.  Gen.,  Cloyd  D.  Sterling,  Asst. 
Atty.  Gen.,  and  L.  T.  Van  Slylce,  State's 
Atty.,  for  the  State. 

CORSON,  3.  Upon  an  Information  dnly 
filed  by  the  state's  attorney  of  Brown  county, 
the  defendant  was  tried  and  convicted  of 
the  offense  of  selling  intoxicating  liquors  at 
the  city  of  Oroton,  in  said  county,  without 
a  license.  From  the  Judgment  the  defendant 
has  appealed  to  this  court,  and  assigns  nu- 
merous errors,  the  more  Important  of  whicli 
will  be  noticed  in  the  course  of  this  opinion. 

James  CDay,  a  witness  on  the  part  of 
the  state,  after  testifying  tbat  he  bad  ptir^ 
chased  of  the  defendant  a  certain  quantity 
of  whisky  in  the  city  of  GrotoQ,  and  having 
produced  In  court  a  bottle  of  whislcy  which 
he  claimed  was  the  Identical  twttie  that  he 
purchased  of  the  defendant,  and  having  testi- 
fied on  cross-examination  that  he  had  been 
promised  and  did  receive  $50  for  procuring 
said  bottle  of  whlslcy,  Icnown  as  "Exhibit 
4,"  was  on  cross-examination  asked:  "Q. 
Now,  Mr.  O'Day,  is  it  not  a  fact  that  on 
Sunday,  the  Sunday  before  the  2lBt,  you  sent 
down  to  James  for  a  couple  of  bottles  of 
pure  whisky?  A.  Yes,  sir."  Thereupon  the 
state's  attorney  objected  to  the  question  as 
not  proper  cross-examination,  and  made  a 
motion  to  strike  out  the  answer,  which  was 
sustained  by  the  court,  and  the  answer 
stricken  out.  "Q.  Did  you  have  any  other 
bottle  of  whisky  in  your  possession  except 
Exhibit  4  on  the  1st  day  of  January,  19087" 
This  question  was  also  objected  to  by  the 
state's  attorney  as  immaterial  and  not  prop- 
er cross-examination,  the  objection  sustained, 
and  the  defendant  duly  excepted.  We  are 
inclined  to  take  the  view  that  the  court  com- 
mitted no  error  In  excluding  these  questions. 
It  was,  as  contended  by  the  Attorney  Gen- 
eral, clearly  Immaterial  whether  or  not  the 
witness  had  other  bottles  of  whisky  In  his 
possession ;  the  only  material  Issue  being  the 
purchase  of  whisky  from  the  defendant  at 
or  about  the  time  stated  In  the  information. 
The  matter  of  cross-examination  of  a  wit- 
ness Is  very  largely  in  the  discretion  of  the 
trial  court,  and  its  rulings  will  not  be  re- 
versed unless  there  has  been  an  abuse  of 
such  discretion,  and  no  such  abuse  is  shown 
by  the  record  in  this  case.  State  v.  Bunker, 
7  S.  D.  639,  65  N.  W.  33 ;  Homestake  Mining 


Co.  V.  Fnllo-ton,  69  Fed.  923, 16  C.  G.  A.  545  ; 
1  Thompson  on  Trials,  |  418. 

It  Is  further  assigned  as  error  that  the 
court  erred  In  excluding  questions  on  tbe 
cross-examination  of  the  witness  O'Day,  the 
object  and  aim  of  which  was  to  bring  out 
the  fact  that  the  witness  was  not  regularly 
working,  and  needed  money  for  the  support 
of  his  family,  and  had,  in  fact,  applied  for 
county  aid  for  them.  We  are  of  the  opinion 
that  the  court  committed  no  error  in  exclud- 
ing these  questions.  The  witness  had  testi- 
fied, as  we  have  seen,  that  he  received  $30 
for  bis  services  In  procuring  tbe  bottie  of 
whisky  claimed  to  have  been  purchased  by 
him.  It  was  not  necessary  to  press  this 
inquiry  further,  as  his  Interest  in  the  prose- 
cution was  clearly  shown  to  the  Jury;  and 
tbe  fact  that  he  was  in  Indigent  circumstan- 
ces and  needed  assistance  was  clearly  Im- 
material.  The  evidence  sought  to  be  obtain- 
ed  did  not  affect  his  credibility  as  a  witness, 
and  was  entirely  immaterial  to  any  Issue  In 
the  case.  Thompson  In  bis  work  on  Trials 
(section  168)  says:  "Within  the  rule  of  tbe 
preceding  text  questions  which  might  ex- 
cite prejudice  against  the  witness,  but  the 
answers  to  which  would  not  properly  affect 
his  credibility,  are  not  allowed  to  be  put  on 
crosB-examination."  The  evidence  sought  to 
be  elicited  by  the  questions,  propounded  to 
the  witness,  especially  by  the  question,  "Have 
you  not  been  a  liberal  patron  and  lounger 
around  the  saloons  and  cardrooms  In  the 
city  of  Groton  for  the  past  several  years?" 
was  clearly  for  the  purpose  of  creating  in 
the  minds  of  the  Jury  a  prejudice  against  the 
witness,  and  was  properly  excluded. 

In  the  course,  of  the  trial  the  county  au- 
ditor was  Introduced  as  a  witness  on  the 
part  of  the  state,  and  testified  that  he  had 
examined  the  records  of  Brown  county,  and 
that  no  license  had  been  issued  to  the  de- 
fendant authorizing  him  to  sell  intoxicating 
liquors  within  tbe  city  of  Groton  during  the 
year  in  which  the  liquor  was  claimed  to  have 
been  purchased  by  O'Day.  On  cross-ex- 
amination he  testified:  "The  record  which  I 
have  In  my  hand  Is  tbe  receipt  book  from 
which  tbe  receipts  for  licenses  are  made. 
This  is  tbe  only  memorandum  that  we  have 
as  to  the  payment  of  licenses."  The  witness 
was  then  asked  the  following  question:  "I 
call  your  attention  to  stub  109,  and  ask  you 
if  that  Is  tbe  stub  of  a  receipt  for  license 
paid  by  Mr.  Madison  for  tbe  year  you  re- 
ferred to.  A.  Yes,  sir."  Thereupon  the  de- 
fendant's counsel  propounded  the  following 
question  to  the  witness:  "Is  it  not  a  fact 
that  none  of  the  receipts  or  stubs  on  that 
book  show  tbe  place  where  the  business  iSi 
carried  on?"  This  question  was  objected 
to  as  not  proper  cross-examination,  and  the 
court  sustained  the  objection.  Thereupon 
the  defendant's  counsel  offered  the  book  in 
evidence  as  part  of  the  cross-examination. 


•For  oUier  cue*  le*  uunt  topic  and  lectlon  NUMBER  1&  Dec  *  Am.  Digs.  1M7  to  (M.%  ft  Reporter  Indezn 


Digitized  by  VjOOQ  l€ 


8.D.) 


STATE  ▼.  MADISON. 


649 


the  said  book  being  a  blank  book  of  receipts 
for  licenses  from  Trhlch  the  receipt  Is  de- 
tached, and  the  record  thereto  kept  on  stubs, 
to  which  offer  the  state's  attorney  objected, 
and  the  court  sustained  the  objection,  to 
which  the  defendant  excepted.  It  is  con- 
tended by  the  appellant  that,  Inasmuch  as 
there  appeared  to  be  a  stub  of  a  license  is- 
sued to  the  defendant,  they  had  the  right  to 
Introduce  the  book  in  evidence,  which  in- 
cluded that  stub,  but  we  are  of  the  opinion 
that  the  court  was  right  In  excluding  the 
book,  for  the  reason  that  the  stub  did  not 
show  at  what  place  the  defendant  was  au- 
thorized to  sell  liquors,  and  was  therefore 
Immaterial  in  the  absence  of  any  offer  on 
the  part  of  the  defendant  to  show  that  a 
license  had  in  fact  been  issued,  authorizing 
the  defendant  to  sell  Intoxicating  liquors  in 
the  city  of  Groton,  and  had  been  accidentally 
lost  or  destroyed.  Evidence  immaterial  when 
offered  Is  tnadmisslble,  unless  accompanied 
by  an  offer  to  show  its  materiality  by  other 
evidence. 

On  the  trial  the  defendant  sought  to  im- 
peach the  witness  O'Day,  and  the  stats 
sought  to  Impeach  the  defendant's  testimony 
by  evidence  proving  or  tending  to  prove  that 
their  reputation  for  truth  and  veracity  was 
bad.  It  Is  contended  by  the  defendant,  that 
the  evidence  tending  to  sustain  the  reputa- 
tion of  O'Day  and  to  Impeach  the  reputa- 
tion of  the  defendant  was  Inadmissible  for 
the  reason  that  In  the  questions  propounded 
by  the  state's  attorney  the  word  "general" 
was  omitted.  It  Is  contended  by  the  de- 
fendant that  by  allowing  the  questions  to  be 
put  in  the  form  In  which  they  were  objected 
to,  and  allowing  the  answers  thereto  to  stand, 
the  state  was  allowed  to  prove  the  reputa- 
tion of  the  defendant  as  to  truth  and  veracity 
within  a  small  class  of  people,  and  not  his 
general  reputation,  and  without  first  com- 
pelling the  witness  to  swear  that  he  knew 
the  general  reputation  of  the  defendant  for 
truth  and  veracity.  While  It  is  proper  In 
questions  of  this  nature  to  ask  the  witness 
If  he  knows  the  general  reputation  of  the 
witness  whose  testimony  la  sought  to  be  im- 
peached, yet  the  mere  omission  of  the  word 
"general"  will  not  affect  the  testimony  of  the 
witness,  provided  It  Is  shown  by  the  questions 
and  answers  that  he,  in  fact  does  Icnow  the 
general  reputation  of  the  witness,  and  words 
meaning  the  same  thing  are  used,  when  the 
witness  is  asked  if  he  is  acquainted  with  the 
reputation  of  the  witness  for  truth  and  verac- 
ity In  the  vicinity  In  which  he  lives.  In  Dance 
T.  McBrlde,  43  Iowa,  624,  Adams,  J.,  speaking 
for  the  court,  says :  "A  man's  reputation  for 
veracity  Is  what  Is  said  of  him  in  the  com- 
munity In  which  be  lives."  1  Thompson  on 
Trials,  {  629,  says:  "What  is  wanted  Is  the 
common  opinion,  that  In  which  there  is  gen- 
eral concurrence."  When  the  witnesses  there- 
fore testified  that  they  were  acquainted  with 
the  reputation  of  the  party  In  question  in  the 
Tlcinl^  in  which  he  lived,  they  were  stating 


in  effect  that  which  constitutes  general  repu- 
tation or  charact^r. 

It  further  appears  from  the  record  that  the 
court  limited  the  number  of  Impeaching  wit- 
nesses to  four  on  a  side.  It  Is  contended  by 
the  appellant  that  It  was  error  for  the  court 
to  so  limit  the  number  of  witnesses  of  that 
character,  but  we  are  of  the  opinion  that  It 
was  clearly  within  the  discretion  of  the  trial 
court  to  so  limit  the  number,  and  that  in  so 
doing  it  committed  no  error.  The  impeach- 
ment of  witnesses  Is  a  collateral  Issue,  and 
therefore  It  was  competent  for  the  court  to 
limit  the  number  of  witnesses.  State  v.  Bea- 
bout,  100  Iowa,  155,  69  N.  W.  429 ;  Fisher  ▼. 
Ck>nway,  21  Kan.  18,  30  Am.  Rep.  419;  1 
Thompson  on  Trials,  J  353;  16  Cyc  1277;  12 
Cyc.  555 ;  Mergenthelm  v.  State,  107  Ind.  667, 
8  N.  E.  568 ;  Butler  v.  State,  97  Ind.  378;  Ever- 
ett V.  Union  Pac.  Ry.  Co.,  59  Iowa,  243, 13  N. 
W.  109 ;  State  t.  Rutherford,  152  Mo.  124, 53  S. 
W.  417.  In  State  v.  Beabout,  supra.  In  which 
the  trial  court  had  limited  the  number  of 
witnesses,  the  Supreme  Court  says :  "The  en- 
forcement of  such  a  rule  Is  within  the  dis- 
cretion of  the  district  court,  and  we  discover 
no  reason  for  holding  that  the  discretion  was 
abused."  In  Fisher  v.  Conway,  supra,  the 
Supreme  Court  of  Kansas,  speaking  by  Brew- 
er, J.,  in  discussing  the  question  as  to  lim- 
iting the  number  of  witnesses,  says:  "It 
Is  doubtless  true  as  to  any  collateral  matter 
as  the  impeachment  of  a  witness  that  the 
court  may  restrict  the  number  of  witnesses, 
and,  tmlesB  It  appears  that  there  has  been 
an  abuse  of  discretion  in  this  respect,  no  er- 
ror wUl  Ue." 

On  the  trial  the  following  question  was' 
propounded  to  the  defendant:  "Q.  Mr.  Madi- 
son, Mr.  Van  Slyke  asked  you  on  cross-ex- 
amination If  you  had  been  convicted  of  any 
offense  against  the  law  relating  to  the  sale 
of  Intoxicating  liquor,  and  you  replied  that 
you  pleaded  guilty  to  the  offense  of  keeping 
open  after  hours.  I  ask  you  whether  at 
the  time  of  that  offense  to  which  you  plead- 
ed guilty  you  were  yourself  personally  pres- 
ent at  tbe  town  where  your  saloon  was  kept 
open?"  To  this  the  state's  attorney  object- 
ed as  immaterial,  and  the  court  sustained  the 
objection,  to  which  defendant  excepted.  He 
was  then  asked:  "Q.  I  will  ask  you,  Mr. 
Madison,  If  that  offense  to  which  you  pleaded 
guilty  was  the  offense  of  your  bartender 
keeping  the  doors  open  after  11  o'clock  dur- 
ing your  absence  from  town?"  This  was 
objected  to  and  the  objection  sustained  by 
the  court,  and  exception  taken.  It  is  con- 
tended by  the  appellant  that,  as  the  defend- 
ant had  stated  in  reply  to  the  question  of  the 
state's  attorney  that  he  had  pleaded  guilty 
to  the  offense,  he  was  entitled  to  explain  as 
to  the  manner  in  which  the  offense  was  com- 
mitted. This,  however.  In  our  opinion,  was 
Immaterial,  and  was  an  attempt  to  introduce 
before  the  jury  a  collateral  issue  which 
would  tend  to  divert  the  minds  of  the  Jury 
from  tbe  main  question  involved  in  the  case. 


•  Digitized  by  VjOOQIC 


650 


122  NOBTHWESTEBN  BEFOBTEB. 


(8.a 


Oommonwealth  v.  GaUlgan,  16S  Mass.  54,  28 
N.  B.  1128;  Oalla^er  t.  People,  211  111.  158, 
71  N.  B.  842.  In  the  former  case  It  was  held 
by  the  Supreme  Court  of  Maasachusetts,  as 
appears  by  the  beaduote,  aa  follows:  "At 
the  trial  of  a  criminal  case  a  witness  called 
by  the  defendant  was  asked  upon  cross-ex- 
amination whether  he  was  the  same  person 
who  was  convicted  of  larceny  at  a  court  and 
at  a  time  named  in  the  question,  and  replied 
In  the  aflSrmatlTe.  The  defendant's  counsel 
then  asked  the  witness  to  state  the  facta  and 
circumstances  connected  with  the  transac- 
tion, and  the  presiding  judge  refused  to  per- 
mit the  witness  to  answer.  Held,  that  the 
testimony  was  properly  excluded." 

On  the  trial  it  was  disclosed  by  the  evi- 
dence that  under  a  search  warrant  issued  by 
the  Justice  of  the  peace  there  was  found  in 
the  dwelling  house  of  the  defendant  a  quanti- 
ty of  Intoxicating  liquors  consisting  of  whisky 
and  wines.  In  jags,  and  barrels  partially  fill- 
ed, and  pint  and  quart  bottles,  and  these  were 
offered  in  evidence,  to  which  the  counsel  for 
the  defendant  objected  as  irrelevant  and  im- 
material, and  for  the  reason  that  they  were 
taken  by  a  search  warrant  issued  against  a 
place  which  Is  Shown  to  have  been  a  dwelling 
house,  and  do  part  Is  shown  to  have  been 
occupied  as  a  store,  shop,  hotel,  boarding 
bouse,  or  place  of  public  resort;  and  the 
evidence  is  Inadmissible  for  the  further  rea- 
son that  it  Is  not  unlawful,  and  no  evidence 
of  the  fact  that  it  was  kept  for  unlawful  sale, 
if  liquor  Is  found  in  any  person's  private 
dwelling  house.  The  objection  was  overruled, 
and  the  defendant  excepted.  It  is  contended 
by  the  appellant  that,  as  these  liquors  were 
obtained  by  reason  of  a  searcn  warrant  from 
the  dwelling  house  of  the  appellant,  they 
were  not  properly  admissible  as  evidence  in 
the  case  under  the  provisions  of  section  8, 
c.  ITS,  p.  363,  Laws  1907,  which  provides: 
"No  warrant  shall  be  Issued  to  search  a  pri- 
vate residence  occupied  as  such,  unless  it, 
or  some  part  of  It  is  used  as  a  store  or  shop, 
hotel  or  boarding  house,  or  unless  such  resi- 
dence Is  a  place  of  public  resort"  It  Is  fur- 
ther contended  by  the  appellant  that  the  ad- 
mission of  this  evidence  was  in  violation  of 
articles  4  and  5  of  the  Constitution  of  the 
United  States,  and  of  sections  9  and  11  of 
article  6  of  the  Constitution  of  South  Dakota, 
and  hence  that,  the  search  warrant  being  un- 
lawfully issued,  the  effect  of  the  evidence  was 
to  compel  the  defendant  to  furnish  evidence 
against  himself.  It  is  claimed  by  the  appel- 
lant that  the  state's  attorney  conceded  that 
the  search  warrant  was  illegally  issued.  If 
such  was  the  fact,  the  learned  state's  attor- 
ney may  have  made  an  unwarranted  admis- 
sion, as  a  dwelling  bouse,  when  it  is  shown 
that  intoxicating  liquors  are  kept  therein; 
and  sales  made  therein,  may  be  properly  re- 
garded as  a  shop  or  place  of  public  resort 
But  in  the  view  we  take  of  this  case,  it 
will  not  be  necessary  to  decide  that  ques- 
tion at  this  time,  but  assuming  for  the  pur- 


poses of  this  decision  that  the  search  war- 
rant was  illegally  issued,  it  does  not  follow 
that  the  articles  obtained  by  means  of  such 
warrant  may  not  be  Introduced  in  evidence, 
for  the  great  weight  at  authority  seems  to 
be  In  favor  of  such  evidence,  without  regard 
to  the  manner  in  which  it  was  obtained. 
In  the  case  of  Williams  v.  State  of  Georgia, 
100  6a.  511,  28S.E.624,  39LlB.A.269, 
decided  by  the  Supreme  Court  of  that  state 
In  1896,  it  was  held  that:  "There  was  no 
error  on  the  trial  of  a  criminal  case  in  ad- 
mitting against  the  accused  evidence  showing 
that  she  had  upon  her  person  and  about  her 
premises  articles  the  possession  of  wttich, 
though  not  in  itself  criminal,  tended  to  estab- 
lish her  guilt  of  the  offense  with  which  she 
was  charged,  notwithstanding  it  appeared 
that  the  discovery  of  these  articles  was  made 
by  forcibly  entering  into  her  house,  and  there 
searching  the  same  and  her  person,  without 
any  warrant  or  authority  of  law.  Although 
the  search  and  seizure  may  have  been  un- 
lawful, unwarranted,  unreasonable,  and  rep- 
rehensible, this  did  not  affect  the  admissibil- 
ity of  the  evidence  obtained  as  a  result  there- 
of." The  learned  Supreme  Court  in  an  ex- 
haustive opinion,  and  after  a  full  review  of 
the  authorities,  arrived  at  the  conclusion,  as 
we  have  seen,  that  articles  obtained  by  means 
of  an  illegal  search  are  admissible  as  evi- 
dence in  the  case,  notwithstanding  the  illegal 
manner  In  which  they  were  obtained.  Id 
the  course  of  its  opinion  the  court  says:  "The 
position  assumed  by  counsel  for  the  accused 
does  not  present  for  determination  a  new 
question.  That  evidence  pertinent  and  ma- 
terial to  the  Issue  is  admissible,  notwith- 
standing It  may  have  been  illegally  procur- 
ed by  the  party  producing  it,  was  early  set- 
tled by  the  English  courts.  The  case  of 
Legatt  V.  Tollervey,  14  East  302,  to  this  ef- 
fect decided  in  1811,  followed  a  previous 
ruling  made  in  Jordan  v.  Lewis  (1739),  the 
substance  of  which  is  stated  In  a  note,  as 
the  report  of  the  latter  case  In  2  Strange, 
1122,  was  meager  and  imperfect  And  sucb 
was  the  rule  observed  in  subsequent  deci- 
sions. Caddy  v.  Barlow,  1  Mann.  &  B.  275; 
Stockfleth  V.  De  Tastet  4  Campb.  10;  Rob- 
son  V.  Alexander,  1  Moore  &  P.  448.  In  this 
country  the  question  certainly  arose  as  early 
as  1841.  Commonwealth  v.  Dana,  2  Mete. 
(Mass.)  829.  There  it  was  insisted  that  the 
issuing  of  a  warrant  authorizing  a  search  of 
the  premises  of  the  accused,  who  was  sus- 
pected of  having  in  his  possession  lottery  tick- 
ets. Invaded  his  constitutional  right  to  tie  se- 
cure against  unreasonable  searches  and  seiz- 
ures, and  'that  the  seizure  of  the  lottery 
tickets  and  materials  for  a  lottery  for  the 
purpose  of  using  them  as  evidence  against 
the  defendant  •  •  •  (was)  virtually  com- 
pelling him  to  furnish  evidence  against  him- 
self in  violation  of  another  artl<de  in  the 
Declaration  of  Bighta.'  But  WUde,  J.,  speak- 
ing for  the  Supreme  Court  of  Massachusetts, 
summarily  disposed  of  this  contention  by  say  • 


Digitized  by  VjOOQ  IC 


>•!>•)) 


STATS  T.  MADISON. 


<S1 


Ins  (page  887  <tf  2  Mete):  'AdmlttliK  tbat  the 
lottery  tickets  and  materials  were  Illegally 
seized,  still  this  is  no  legal  objection  to  the 
admission  of  tbem  in  evidence.'"  Thb  Su- 
preme Court  of  Georgia  proceeding  says: 
"Sudi  bas  bean  the  view  since  entertained, 
and  consistently  adhered  to,  by  the  Massa- 
dinsetts  court"— citing  a  large  number  ot 
Massachusetts  cases.  The  court,  after  r» 
Tlewlng  a  large  number  of  the  American  de- 
cisions npon  the  subject,  takes  up  the  case 
of  Boyd  7.  United  States,  116  U.  R  616,  6 
Sup.  Ct  624,  29  L.  Ed.  746,  cited  in  that 
case,  as  In  the  case  at  bar  as  authority  for 
tbe  contention  of  the  defendant,  and  says: 
"We  do  not  think  the  dedsion  rendered. Id 
that  case  is  authority  supporting  this  con- 
tention. A  clear  statement  of  the  Issues 
raised  in  it,  and  of  the  precise  questions  pass- 
ed on  by  tbe  federal  Supreme  Court,  Is  to 
be  found  In  Glndrat  t.  People,  138  111.  103, 
27  N.  E.  1085,"  in  which  the  Supreme  Court 
of  Illinois,  after  citing  a  number  of  cases  in 
point,  concludes  that  that  decision  does  not 
affect  the  questions  presented  in  the  case 
then  before  it,  and  clearly  shows  that  the 
Boyd  Case  Is  distinguishable  by  reason  of  the 
peculiar  circumstances  connected  with  that 
case,  and  held  as  appears  by  the  headnote: 
"Thongh  papers  and  other  subjects  of  evi- 
dence have  been  Illegally  taken  from  the 
possession  of  the  party  against  whom  they 
were  offered,  or  otherwise  unlawfully  ob- 
tained, this  Is  no  valid  objection  to  their  ad- 
missibility, if  they  are  pertinent  to  the  issue. 
The  court  will  not  form  an  issue  to  determine 
that  question."  The  cases  sustaining  this 
view  of  the  law  are  very  numerous,  but  we 
only  dte  the  following  as  bearing  upon  this 
question:  Commonwealth  v.  Smith,  166  M'ass. 
370,  44  N.  B.  503 ;  Commonwealth  v.  Welch, 
163  Mass.  87;:,  40  N.  E.  103 ;  State  v.  Flynn, 
36  N.  H.  64 ;  Shields  v.  State,  104  Ala.  36,  16 
South.  &5,  53  Am.  St  Rep.  17;  State  v.  Grls- 
wold,  67  Conn.  290,  34  Aa  1046,  33  L.  R.  A. 
227;  Starchman  v.  State,  62  Ark.  538,  36  S. 
W.  940;  State  v.  Pomeroy,  130  Mo.  489,  32 
S.  W.  1002;  Bishop's  Crim.  Proc  J  246;  1 
Bishop's  New  Crim.  Proc.  p.  148;  Greenleaf 
on  the  Law  of  Evidence,  {  254a ;  Taylor  on 
Evidence  (9th  Ed.)  922.  Mr.  Bishop  in  the 
sections  cited  says:  "Tbe  evidence  which  a 
search  warrant  procures  may  be  used  against 
the  party;  not  being  inadmissible  as  an  ad- 
mission under  duress  or  as  furnished  by  the 
prisoner  through  compulsion  against  himself, 
or  as  otherwise  unfairly  or  illegally  obtain- 
ed, even  if  the  search  warrant  was  Illegally 
issued."  Mr.  Greenleaf  In  his  treatise  on  tbe 
Law  of  Evidence,  supra,  says:  "It  may  be 
mientioned  In  this  place  that  though  papers 
and  other  subjects  of  evidence  may  have 
been  Ulegally  taken  from  the  possession  of 
the  party  against  whom  they  are  offered,  at 
otherwise  unlawfully  Obtained,  this  Is  no  val- 
id objection  to  their  admissibility  if  they  are 
pertinent  to  the  Issue.  The  court  will  not 
take  notice  how  they  were  obtained,  whether 
lawfully  or  unlawfully,  nor  will  it  form  an 


Issne  to  determine  tbe  question.''  Similar 
language  is  used  by  Taylor  In  hit  work  ou 
Evidence.  We  are  clearly  of  tbe  opinion, 
therefore,  that  tbe  learned  trial  court  com- 
mitted no  error  in  admitting  in  evidence 
proof  as  to  the  intoxicating  liquors  found  in 
the  possession  of  the  defendant  The  evi- 
dence was  clearly,  competent,  and  tended  to 
corroborate  the  evidence  and  theory  of  tbe 
prosecution  that  the  defendant  was  engaged 
in  the  illicit  sale  of  intoxicating  liquors  with- 
out a  license. 

It  is  further  contended  by  the  defendant 
that  the  court  erred  in  instructing  the  jury 
as  foUows:  «•  •  •  That  the  undisputed 
evidence  in  this  case  shows  that  on  the  21st 
day  of  January,  1908,  the  defendant  had  in 
bis  possession,  at  his  place  of  residence  or 
dwelling  house  In  Groton,  Brown  county,  S. 
D.,  a  quantity  of  intoxicating  liquors,  which 
bas  been  offered  in  evidence  In  this  case." 
And  also  that  the  court  erred  in  the  follow- 
ing instruction  to  the  jury:  "The  court  fur- 
ther instructs  the  Jury  that  the  undisputed 
evidence  in  this  case  shows  that  the  defend- 
ant during  the  month  of  January,  1908,  did 
not  have  a  license  or  permit  to  sell  intoxi- 
cating liquors  at  retail  within  the  city  of 
Groton,  Brown  county,  S.  D."  The  conten- 
tion of  the  defendant  In  regard  to  these  in- 
structions is  that  they  are  instructions  upon 
facts,  and  not  authorized  to  be  given,  under 
section  256,  Code  Civ.  Proc.,  which  provides: 
"Tbe  court  to  charging  the  Jury  shall  only 
Instruct  them  as  to  the  law  of  the  case." 
We  are  of  the  opinion  that  this  objection  is 
untenable,  and  that  it  is  proper  for  the  court 
in  a  case  in  which  there  is  no  conflict  In 
the  evidence  to  instruct  the  jury  that  snch 
evidence  is  undisputed.  As  before  stated,  it 
was  shown  by  the  evidence  of  the  deputy 
sheriff  that  certain  intoxicating  liquors  were 
found  in  the  dwelling  bouse  of  tbe  defend- 
ant, and  the  defendant,  when  a  witness  upon 
the  stand,  admitted  that  he  bad  such  liquors 
in  his  possession  and  In  no  manner  contra- 
dicted the  statement  of  tbe  deputy  sheriff. 
Clearly,  therefore,  tbe  fact  that  he  bad  such 
intoxicating  liquors  in  bis  possession  as  tes- 
tified to  by  the  deputy  sheriff  was  uncon- 
tradicted. It  was  also  proved  npon  the  trial 
by  the  testimony  of  the  county  auditor  that 
no  license  had  been  Issued  to  the  defendant 
authorizing  him  to  sell  intoxicating  liquors 
within  the  dty  of  Groton  during  the  year 
in  controversy.  This  evidence  was  undis- 
puted. The  defendant  as  a  witness  upon 
the  stand  In  bis  own  behalf  did  not  claim 
that  be  bad  any  such  license  or  authority, 
and  bis  only  defense  to  the  action  seemed 
to  be  a  denial  of  the  sale  of  the  bottle  of 
whisky  to  O'Day  as  testified  to  by  the  said 
O'Day.  In  view,  therefore,  of  the  fact  that 
the  evidence  as  to  these  questions  being 
uncontradicted,  was  properly  brought  to  the 
attention  of  the  Jury,  that  their  minds  might 
be  properly  directed  to  a  consideration  of 
the  disputed  question  of  fact,  namely,  the 


Digitized  by  LjOOQ  l€ 


652 


122  NORTHWESTERN  REPORTER. 


^Ol 


aale  of  the  bottle  of  whisky  to  On^ay  as  tes- 
tified to  by  him.  State  v.  Kinney,  21  S.  D. 
390,  113  N,  W.  77. 

It  is  further  contended  by  the  appellant 
that  the  court  erred  in  its  Instruction  to  the 
jury,  in  which  it  instructed  them  that  a  wit- 
ness might  be  Impeached  by  witnesses  who 
testify  that  they  are  acquainted  with  the 
reputation  of  the  witness  for  the  reason  that 
the  court  failed  to  use  the  word  "general" 
in  the  Instruction,  but  as  stated  by  us  under 
the  argument  as  to  the  impeachment  of  wit- 
nesses, though  the  word  "general"  was  not 
used,  words  of  similar  Import  were  used,  and, 
when  the  court  Instructed  the  Jury  that  the 
reputation  of  the  witness  sought  to  be  im- 
peached for  truth  and  veracity  In  the  neigh- 
borhood where  such  witness  resided  was  in 
effect,  a  compliance  with  the  rule.  The  whole 
Instructions  of  the  court  upon  this  subject 
state  clearly  the  law  applicable  to  this  class 
of  cases.  It  is  as  follows:  "One  of  the 
methods  known  to  the  law  for  Impeaching  a 
witness  that  is  discrediting  his  testimony  is 
by  calling  other  persons  as  witnesses  who 
testify  that  they  are  acquainted  with  the 
reputation  of  the  witness  sought  to  be  Im- 
peached for  truth  and  veracity  in  the  neigh- 
borhood where  such  witness  resides,  and 
that  such  reputation  Is  bad.  •  •  •  "  Then 
tb»  jury  have  a  right  to  disregard  the  tes- 
timony of  the  witness.  While  undoubtedly 
It  would  have  l)een  better  to  have  used  the 
word  "general,"  its  omission  is  a  mere  tech- 
nical error,  for  which  the  defendant  is  not 
entitled  to  a  reversal  of  the  Judgment  By 
section  600  of  the  Code  of  Criminal  Proce- 
dure, It  Is  provided:  "After  hearing  the 
writ,  the  court  must  «lve  judgment  without 
regard  to  technical  errors  or  defects  or  to 
exceptions  which  do  not  affect  the  substan- 
tial rights  of  the  parties."  Clearly  the  er- 
ror. If  any,  in  no  way  prejudiced  the  de- 
fendant 

Finding  no  error  in  the  record,  the  judg- 
ment and  order  denying  a  new  trial  are 
aflSrmed. 

McCOT,  X,  taking  no  part  in  this  decision. 


STATE  V.  HAYES. 

(Supreme  Court  of  Sonth  Dakota.    Sept  8, 
1900.) 

1.  JUBT    (8   TO*)— DlSCHABOB    OF   PANKJJ— NBW 

JuET— Method  or  Drawino. 

A  challenge  to  the  regular  panel  having 
been  interposed  by  accused  and  allowed,  an  or- 
der directing  the  sheriff  to  summon  forthwith 
from  the  body  of  the  county  24  citizens,  poB- 
sessing  the  qualifications  of  Jurors,  to  serve  as 
petit  jurors  for  the  pending  term,  was  express- 
ly authorized  by  Rev.  Code  Cr.  Pioc.  |  303. 

[Ed.  Note.— For  other  cases,  see  Jury,  Cent 
Dig.  S  313;    Dec.  Dig.  {  70.*] 


2.  JxTBT  (I  885- Dbawiwo  Jxtbt— Statutes. 

Code  Cr.  Proc.  {  303,  providing  that,  when 
a  challenge  to  the  regular  panel  is  allowed,  the 
court  must  discharge  the  jury  and  another  may 
be  summoned  for  the  same  term  forthwith  from 
the  body  of  the  county  or  subdivision,  or  the 
judge  may  order  a  Jury  to  be  drawn  and  sum- 
moned In  the  regular  manner,  is  not  in  conflict 
with  Const,  art.  6,  (  7,  guaranteeing  a  speedy- 
public  trial  by  an  impartial  jury  out  of  the  coun- 
ty or  district  in  which  the  offense  is  alleged 
to  have  been  committed. 

[Ed.  Note.— For  other  cases,  see  Jury.  Ctent. 
Dig.  8  229;    Dec  Dig.  |  WJ^^  ^' 

8.  JUBT    (8    70*)— SUMMONINO   JUBOBS— QUAI.- 
ITICATIONS   OF  SHEEIIT. 

That  the  sheriff's  name  was  indorsed  on 
the  information  as  a  witness  for  the  state  did 
not  as  a  matter  of  law  disqualify  him  to  sum- 
mon a  new  jury  panel  to  try  accused. 

[Ed.  Note.— For  other  cases,  see  Jury,  Cent. 
Dig.  8  327;   Dec.  Dig.  8  70.*] 

4.  JUBT     (8     70*)— SUMMONIWO     BT     SHBBIFT — 

Disqualification — Implied  Bias. 

That  the  name  of  the  sheriff  was  indorsed 
on  an  information  against  accused  as  a  witness 
for  the  state  did  not  constitute  implied  bias  as 
defined  by  Rev.  Code  Cr.  Proc.  8  338,  so  as  to 
disqualify  him  to  summon  a  new  jury  to  trjr 
accused. 

end.  Note.— For  other  cases,  see  Jury,  Cent. 
.8  327;  Dec.  Dig.  8  70.*] 

5.  JrBT  a  110*)— SujojoNiRo  New  PAWKir— 

DlBQUALDlCATIOn      OF     SHERIFF  —  ACTCAIi 

Bias. 

Where  a  sheriff  having  apprehended  accus- 
ed secured  and  preserved  evidence  against  him. 
and  had  formed  an  opinion  as  to  his  guilt,  but 
it  did  not  appear  that  he  had  conferred  with 
'any  one  summoned  as  a  juror  or  attempted  to 
influence  any  juror's  Judgment,  and  it  also  did 
not  appear  that  the  special  panel  summoned  by 
the  sheriff  was  not  composed  of  as  intelligent, 
reliable,  and  impartial  persons  as  would  have 
been  secured  had  a  special  panel  been  otherwise 
summoned,  accused,  not  having  objected  in  the 
first  instance  to  the  special  panel  being  summon- 
ed by  the  sheriff,  was  not  entiued  to  have  the 
same  quashed  because  of  the  sheriffs  alleged 
actual  bias. 

[EM.  Note.— For  other  cases,  see  Jury,  Cent. 
Dig.  88  512-C18;  Dea  Dig.  8  llO.'l 

6.  JxTBT  (8  70*j— Special  Panel— Disquau- 

nOATION   OF   SHEBIFF— EXAUINATION. 

A  special  panel  having  been  summoned  by 
the  sheriff  to  try  accused,  he  objected  thereto 
because  of  the  sheriff's  actual  bias,  in  support 
of  which  objection  he  was  permitted  to  examine 
the  sheriff  as  to  his  aualifications.  The  chal- 
lenge l>eing  disalloweo,  and  the  special  panel 
exhausted,  the  sheriff  was  ordered  to  summon  a 
second  to  which  panel  when  snmmoned  accused 
also  for  the  first  time  objected  on  the  same 
ground.  Beld,  that  the  court  did  not  err  in  re- 
fusing to  permit  a  re-examination  of  the  sheriff  ■ 
there  being  no  offer  of  different  proof  from  that 
introduced  in  support  of  the  previous  challenge. 
[Ed.  Note. — For  other  cases,  see  Jury,  Cent 
Dig.  8  327;   Dec.  Dig.  8  70.*] 

7.  CBIMINAL  I/AW  (8  829*)— INBTBUCTIONS— R»- 
qUEST  TO  Chabge. 

Refusal  of  requested  Instructions  covered 
by  the  instructions  of  the  court  is  not  error. 

[Ed.    Note.— For    other   cases,    see    Criminal 
Law,  Cent  Dig.  8  2011 ;    Dec  Dig.  8  829.*] 

8.  Homicide  (8  313*)— Verdict— Cebtaintt. 

An  information  charged  mnrder,  and  the 
court  instructed  that  if  the  killing  was  done 
with  malice  aforethought  and  with  a  premedi- 
tated design  to  effect  deceased's  death,  without 


*For  ottier  caaei  m*  sam*  topic  and  section  NUMBER  In  Deo.  *  Am.  Digs.  1907  to  data,  ft  Raportor  IndazM 


Digitized  by  VjOOQ  l€ 


S.D.) 


8TATB  T.  HAYSa 


•nthoiity  of  Uw,  and  without  Jostiflable  or  ez- 
cuaable  eaoae,  defendant  woald  be  guiltj  of 
murder  as  charged,  and  the  jury  sbould  so  find 
and  fix  his  panishment  at  death  or  Imprison- 
melit  for  life,  but,  if  the  jury  had  reasonable 
doubt  aa  to  defendant's  guilt  of  murder,  it  should 
acquit  him  of  that  charge,  and  determine  wheth? 
er  he  was  guilty  of  manslaughter  in  the  first 
or  second  degree,  in  which  event  they  would  use 
a  specified  form  of  verdict.  Heid,  that  a  ver- 
dict finding  accused  guilty  "as  charged  in  the 
information"  and  fixing  "his  punishment  at 
death"  was  not  objectionable  for  uncertainty. 

[EM.  Note. — ¥«T  other  cases,  see  Homicide, 
Cent.  Dig.  »  97]<-e75;  Dec.  Dig.  |  313.*] 

Appeal  from  Circuit  Court,  Lawrence 
County. 

Charles  A.  Hsyes  was  convicted  of  mtunler, 
and  he  appeals.    Affirmed. 

Robert  C.  Hayes  and  John  T.  Hetfron,  for 
appellant  S.  W.  Clark,  Atty.  Gen.,  and  Rob- 
ert P.  Stewart,  Special  State's  Atty..  for  the 
State. 

HANBX,  P.  J.  Upon  the  issues  raised  by 
an  information  charging  murder  and  a  plea 
of  not  guilty,  the  jury  In  this  action  return- 
ed a  verdict  finding  the  defendant  guilty  as 
charged,  fixing  his  punishment  at  death.  The 
testimony  of  the  state  tended  to  prove  that 
Lena  Scharr  and  Fred  Samuelson,  who  work- 
ed for  the  former's  father,  were  in  a  corral; 
that  Miss  Scharr  was  near  Samuelson,  wait- 
ing fcH-  him  to  finish  mUklng,  when  the  ac- 
cused came  across  the  fence  saying,  "I  am 
tired  of  this,"  and  shot  immediately;  that 
Miss  Scharr  ran  to  the  corral  gate  followed 
by  Samuelson;  that  three  more  shots  were 
fired  by  the  accused  and  Samuelson  fell ;  that 
the  accused  .directly  came  to  the  house,  and 
asked  where  Lena's  mother  was,  saying,  "I 
will  get  her  next";  that  the  accused  then  had 
a  revolver;  and  that  Samuelson's  back  was 
towards  the  accused  when  all  the  shots  were 
fired.  A  physician  testified  that  an  examina- 
tion of  Samuelson's  body  disclosed  a  wound 
extending  from  three  Inches  below  the  should- 
er blade  caused  by  a  bullet  which  was  imbed- 
ded beneath  the  edge  of  the  breastbone,  and 
which  had  passed  through  the  heart  and  left 
Itmg,  producing  practically  instantaneous 
death.  The  accused,  as  a  witness  on  his  own 
behalf,  testified  in  part  as  follows:  "I  went 
to  Scharr's  place  that  evening  because  I  had 
an  engagement  for  the  next  morning  with 
Miss  liOna  Scharr,  and  I  was  going  to  work 
the  next  morning  for  Mr.  Morrell,  and  I  had 
to  let  her  know  before  going  to  work.  I 
■aw  her  In  the  corral  about  8  o'clock  in  the 
evening.  I  was  at  the  northwest  comer  of 
the  corral  on  the  outside,  and  she  was  about 
15  feet  from  me  In  the  corral  and  about  the 
same  distance  from  the  gate — down  in  the 
comer  of  the  corral  by  the  gate.  Mr.  Samuel- 
son was  there.  They  were  standing  as  close 
as  they  could  together.  He  stood  with  his 
arm  around  her  waist  and  her  arm  around 
his  shoulder.  His  back  was  toward  me,  and 
her  face  In  his  breast,  the  other  side  of  him. 


Her  face  was  toward  ma,  but  b^ind  him. 
The  cow  was  walking  a  litQe  way  from  them, 
going  up  the  hill.  Samuelson  put  his  hand 
under  the  girl's  clothes.  That  made  me  an- 
gry. My  feelings  were  too  angry  to  be  ex- 
pressed. I  jumped  over  the  fence,  and  went 
straight  at  them  as  fast  as  I  could  with  both 
my  hands  in  the  air.  My  purpose  was  to 
separate  them.  At  that  time  I  had  no  in- 
tention of  taking  the  life  of  Samuelson. 
When  I  got  within  four  feet  of  Mr.  Samuel- 
son, the  girl  says,  she  kind  of  moved  a  little 
bit,  and  she  says,  'There  Is  Bill,'  meaning 
me.  Samuelson  turned  around  to  me,  and 
threw  one  hand  to  his  hip  pocket  His  back 
had  been  to  me,  and,  as  I  approached  him 
and  those  words  were  used  by  Lena  Scharr, 
he  whirled  facing  me,  and  threw  his  hand 
to  his  hip  pocket  He  turned  on  me  quids, 
and  the  motion  to  his  hip  pocket  was  as 
quick  as  anybody  could  make  It  I  thought 
I  would  be  shot  I  was  at  that  time  in  fear 
of  imminent  death.  •  •  •  When  Samuel- 
son made  this  motion  to  his  hip  pocket  I 
drew  my  gun  as  quick  as  I  could,  and  fired 
just  as  quick  as  I  drew  the  gun.  Samuelson 
was  standing  facing  me  at  the  time  I  fired 
the  first  shot  The  shots  were  fired  rapidly 
and  in  the  direction  of  the  opposite  comer  of 
the  corral.  I  didn't  change  the  direction  of 
the  gun  during  the  firing.  I  didn't  see  Samu- 
elson after  the  first  shot  was  fired.  It  was 
too  dark,  and  the  fiash  of  the  gun  blinded  me 
so  that  I  could  see  nothing.  When  I  got  over 
the  fence,  Lena  ran  straight  through  the  gate, 
and  that  was  the  last  I  saw  of  her  at  that 
time.  I  didn't  know  after  the  shots  were 
fired  that  I  had  wounded  Samuelson.  My  ob- 
ject vras  to  protect  myself.  I  was  angry,  I 
reckon."  Defendant  also  testified,  in  sub- 
stance, that  he  was  engaged  to  marry  Miss 
Scharr  when  she  was  about  15  years  of  age, 
but  that  the  engagement  was  "kind  of  broken 
off"  a  year  and  a  half  afterward.  Miss 
Scharr,  who  was  18  at  the  time  of  the  homi- 
cide, stated  that  I'  she  ever  was  engaged  to 
the  accused.  It  was  when  she  was  13  years 
old. 

A  challenge  to  the  regular  panel  having 
been  interposed  by  the  accused  and  allowed, 
the  court  ordered  the  sheriff  to  "summon 
forthwith  from  the  body  of  the  county 
*  *  *  24  citizens  possessing  the  qualifica- 
tions of  Jurors  •  •  •  to  serve  as  petit 
jurors  for  "the  pending  term,  to  which  order 
no  objection  was  made  or  exception  taken  by 
the  accused.  The  sheriff  having,  compiled 
with  such  order,  and  the  jurors  thus  sum- 
moned having  appeared,  the  accused  chal- 
lenged the  special  panel  upon  the  following 
grounds:  (1)  The  court  was  not  authorized 
to  make  the  aforesaid  order.  (2)  The  sher- 
iff was  not  qualified  to  execute  such  order 
(a)  because  he  was  named  as  a  witness  on 
the  information ;  (b)  because  he  had  formed 
and  expressed  an  unqualified  opinion  as  to 
the  merits  of  the  controversy ;  (e)  because  he 


•Tor  other  cases  ■••  uun*  toplo  and  section  JIUMBER  la  Dec.  ft  Am.  Diss.  UC7  to  data,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


V64 


122  NORTHWESTERN  REPORTER. 


(ELD. 


had  been  engaged  for  we^s  In  the  pursuit 
and  capture  of  the  accused;  (d)  because  he 
had  talked  with  material  witnesses  named  on 
the  information;  (e)  because  he  had  gathered 
and  retained  various  objects  of  a  material 
nature  which  the  state  intended  to  Introduce 
in  evidence;  (f)  because  he  had  assisted  the 
state's  attorney  in  examining  the  accused 
while  In  custody  as  to  material  facts;  and 
(g)  because  he  had  by  other  acts  and  conduct 
disqualified  himself  from  selecting  the  spe- 
cial panel.  (3)  The  iMuel  summoned  pur- 
suant to  such  order  did  not  constitute  or 
permit  the  selection  of  snch  an  Impartial  jury 
as  the  Constitution  requires.  The  sheriff  was 
called  as  a  witness  by  the  accused  in  sup- 
port of  the  challenge,  and  testified,  in  sub- 
stance, that  he  was  actively  engaged  In  the 
pursuit  and  arrest  of  the  accused;  that  he 
collected  evidence  against  him;  tliat  he  had 
talked  with  material  witnesses  for  the  state; 
that  be  had  conversed  to  some  extent  with 
the  accused;  that  he  bad  formed  and  may 
have  expressed  an  opinion  as  to  the  guilt  of 
the  accused;  that  snch  opinion  was  an  un- 
qualified one;  that  it  remained  unchanged  at 
the  time  the  special  panel  was  smnmoned, 
but  that  he  had  no  bias  against  the  accused; 
that  he  "was  very  sorry  for  the  man";  and 
that  he  selected  the  special  panel  as  fairly 
as  he  could  in  accordance  with  his  position 
as  sheriff,  and  as  fairly  as  his  conscience 
would  permit  him  to  do.  The  challenge  was 
disallowed,  to  which  ruling  the  accused  duly 
excepted. 

The  argument  of  coniuel  Is  to  this  effect: 
(1)  The  method  of  selecting  this  special 
panel  is  not  authorized  by  the  statute;  or 
(2),  if  it  Is,  the  statute  is  unconstitutional; 
and  (3),  conceding  the  method  to  be  antbor- 
Ized  and  constitutional,  the  person  directed 
to  summon  the  panel  was  disqualified.  "The 
jurors  duly  drawn  and  summoned  for  the 
trial  of  civil  actions  are  also  the  jurors  for 
the  trial  of  criminal  actions."  Rev.  Code 
Cr.  Proc.  S  302.  "Trial  juries  for  criminal 
actions  may  also  be  formed  in  the  same 
manner  as  trial  juries  in  civil  actions."  Id. 
S  803.  When  a  challenge  to  the  regular  pan- 
el is  allowed,  "the  court  must  discharge  the 
jury,  and  another  jury  can  be  summoned  for 
the  same  term  forthwith  from  the  body  of 
the  county  or  subdivision ;  or  the  Judge  may 
order  a  jury  to  be  drawn  and  summoned  in 
the  regular  manner."  Id.  328.  It  is  there- 
fore clear  that  the  method  pursued  by  the 
learned  circuit  court  was  expressly  author- 
ized by  the  statute.  It  is  equally  clear  that 
the  statute  does  not  conflict  with  the  right 
"to  a  speedy  public  trial  by  an  Impartial  ju- 
ry of  the  county  or  district  in  which  the  of- 
fense is  alleged  to  have  been  committed." 
Const.  S.  D.  art  6,  i  7.  The  right  to  an 
Impartial  jury  Is  not  new.  It  did  not  orig- 
inate with  the  Constitution.  Impartiality 
was  an  essential  attribute  or  element  of  tri- 
al by  jury  as  defined  by  the  common  law, 
Lommen  t.  Minn.  Gaslight  Co.,  65  Minn.  196, 


68  N.  W.  63,  38  L.  R.  A.  437,  60  Am.   St 

Rep.  460.  Of  the  two  methods  of  selection 
authorized  by  the  statute  the  one  pursued  hi 
this  Instance  is  the  one  prescribed  by  the 
common  law  itself,  n.  S.  v.  Beebe,  2  Dak. 
292,  11  N.  W.  505.  Manifestly  a  provision 
of  the  Constitution  designed  to  preserve  the 
common-law  right  to  trial  by  jury  is  not  vio- 
lated by  a  statute  authorizing  the  conmion- 
law  method  of  procedure.  Moreover,  "the 
mode  of  selecting  the  jury  is  ixily  the  means 
to  an  end,  and  only  goes  to  the  qoestlon  of 
impartiality."  Lommen  v.  Minn.  Gaslight 
Co.,  supra.  Reasonable  means  to  the  de- 
sired end  have  be«i  provided.  Wbeo  the 
special  panel  is  retnmed,  it  is  subject  to 
challenge  for  bias  of  the  officer  who  sum- 
moned it  and  each  juror  may  be  challenged 
peremptorily  or  for  cause.  No  penon,  how- 
ever selected,  need  be  sworn  as  a  juror  be- 
fore a  presumptively  Impartial  judge  is  sat- 
isfied that  such  person  "will  act  impartially 
and  fairly  upon  the  matters  to  be  submitted 
to  him."  Rev.  Code  Or.  Proc  {{  317-349. 
Having  no  doubt  as  to  the  validity  of  the 
statute,  we  proceed  to  consider  the  qualifica- 
tions of  the  sheriff.  "When  the  panel  is 
formed  from  persons  whose  names  are  not 
drawn  as  jurors,  a  challenge  may  be  taken 
to  the  panel  on  account  of  any  bias  of  the 
officer  who  simimoned  them,  which  woold 
be'  good  ground  of  challenge  to  a  jnror." 
Id.  S  327.  The  fact  that  the  sheriff's  name 
was  indorsed  on  the  information  as  a  wit- 
ness for  the  state  did  not  an  a  matter  of 
law  disqualify  him,  nor  was  be  disqaallfled 
on  account  of  any  implied  Mas  as  defined 
by  the  statute  Id.  i  338.  So,  if  disquali- 
fied, it  was  on  the  ground  of  actual  bias — 
"the  existence  of  a  state  of  mind  on  tbe 
part  of  the  juror,  in  reference  to  the  case, 
or  to  either  party,  which  satisfies  the  oonit, 
in  the  exercise  of  a  sound  discretion,  that 
he  cannot  try  the  issue  Impartially  without 
prejudice  to  the  substantial  rights  of  the 
party  challenging."  Id.  838.  And  the  ml- 
ing  of  tbe  learned  circoit  court  should  not 
be  reversed  in  the  absence  of  a  clear  abuse 
of  discretion.  State  v.  Hall,  16  S.  D.  6.  91 
N.  W.  325,  65  L.  R.  A.  151.  Though  the  sher- 
iff appears  to  have  faithfully  performed  his 
official  duty  In  apprehending  the  accosed. 
In  securing  and  preserving  evldoice  against 
him,  and  to  have  formed  an  opinion  as  to 
his  guilt  It  does  not  appear  that  he  confer- 
red with  any  one  summoned  as  a  juror  or  In 
any  manner  attempted  to  Influence  any  Ju- 
ror's Judgment  Nor  does  it  appear  that  the 
special  panel  was  not  comirased  of  as  Intel- 
ligent, reliable,  and  Impartial  persons  as 
would  have  been  secured  through  the  oth- 
er method  prescribed  by  the  statute.  The 
learned  circuit  court  was  in  position  to  ob- 
serve the  demeanor  of  the  officer,  the  char- 
acter of  the  persons  summoned,  and  all  the 
circumstances  attending  the  trial.  Tbe  ac- 
cused was  given  ample  opportunity  to  tiior- 


Digitized  by  LjOOQ  IC 


S.D4 


NBELEY  ▼.  ROBERTS. 


635 


onglily  examine  each  proffered  juror  for 
came;  to  ezerdse  the  peremptory  challenges 
allowed  by  the  statate,  was,  we  are  aatla- 
fled,  afforded  as  ample  means  of  securing  an 
Impartial  Jury  as  he  would  have  been 
through  the  method  which  he  rejected  by 
objecting  to  the  r^nlar  paneL  Moreorer, 
he  In  effect  consented  to  the  appolntm«it  of 
the  sheriff  by  not  objecting  or  excepting  to 
the  order  directing  that  officer  to  summon 
the  special  panel,  and  "he  who  consents  to 
an  act  is  not  wronged  by  It"  Rev.  CIt. 
Code,  i  2414  Therefore,  though  It  might 
have  been  wiser  to  have  avoided  the  ques- 
tion here  presented  by  the  appointment  of 
some  person  against  whom  no  possible  ob- 
jection could  arise.  It  Is  clear  that  the  rul- 
ing of  the  trial  court  does  not  constitute  re- 
versible error. 

The  special  i)anel  having  been  exhausted, 
the  sheriff  was  ordered  to  summon  a  second, 
to  which  order  no  objection  or  exception  was 
Interposed.  Upon  the  return  of  the  second 
special  panel,  It  was  challenged  by  the  ac- 
cused upon  the  same  grounds  as  the  first, 
and  the  court  disallowed  the  challenge,  de- 
clining to  permit  the  accused  to  again  ex- 
amine the  sheriff.  The  refusal  to  allow  a 
re-examlnation  of  the  sheriff  was  not  re- 
versible error  when  the  accused  did  not  ob- 
ject to  the  order  designating  the  sheriff  as 
the  officer  to  summon  the  second  special 
panel,  and  when  the  accused  made  no  offer 
of  proof  different  from  that  introduced  in 
support  of  the  previous  challenge. 

The  contention  that  the  court  erred  In  re- 
-fusing  to  give  certain  Instructions  request- 
ed by  the  accused  Is  not  tenable.  The  rule 
Is  everywhere  recognized,  and  has  been 
often  followed  by  this  court,  that  It  Is  not 
reversible  error  to  refuse  requested  Instruc- 
tions If  the  substance  of  such  Instructions 
l8  covered  by  the  charge  as  given  by  the 
court  on  its  own  motion,  as  was  the  case 
In  this  Instance.  The  jury  was  Instructed 
that  they  might  under  the  information  find 
the  accused  guilty  of  murder,  manslaughter 
In  the  first  degree,  or  manslaughter  In  the 
second  degree.  The  essential  elements  of 
each  of  these  offenses  or  degrees  of  the  same 
offense  were  clearly  stated.  The  distinction 
between  each  and  the  doctrine  of  self-de- 
fense were  clearly  defined ;  and,  taken  as  a 
whole,  no  ordinarily  Intelligent  juror  could 
have  understood  the  charge  otherwise  than 
as  requiring  an  acquittal  of  each  offense  or 
degree  of  the  same  offense.  If  every  essen- 
tial element  of  each  ^as  not  established  be- 
yond a  reasonable  doubt 

Finally,  It  Is  contended  that  the  verdict 
is  not  definite  and  certain  as  to  the  offense 
of  which  the  accused  was  convicted.  Con- 
sidering the  language  of  the  verdict  in  con- 
nection with  the  Information  and  charge  of 
the  court  there  Is  no  room  for  doubt  as  to 


the  intentloa  of  the  Jury.  The  Information 
charged  the  crime  of  murder.  The  learned 
circuit  court  instructed  the  Jury:  "If,  after 
considering  all  of  the  evidence  In  the  case, 
you  are  satisfied  beyond  a  reasonable  doubt 
that  the  defendant  shot  the  deceased,  Fred 
Samuelson,  and  that  the  shooting  was  with- 
in the  Jurisdiction  of  this  court — that  Is, 
within  this  county  and  state — and  that  it 
was  done  of  the  malice  aforethought  and 
with  the  premeditated  design  to  effect  the 
death  of  the  deceased  with  intent  to  kill 
him,  without  authority  of  law  and  without 
justifiable  or  excusable  cause,  he  would  be 
guilty  of  murder  as  charged  in  the  informa- 
tion and  you  should  so  find  by  your  verdict, 
and.  If  you  find  the  defraidant  guilty  of 
murder  as  charged  In  the  Information,  the 
duty  would  rest  with  you  to  fix  the  punish- 
ment, and.  If  you  find  the  defendant  guilty 
of  murder  beyond  a  reasonable  doubt,  you 
would  have  a  right  to  fix  the  punishment  at 
death  or  Imprisonment  In  the  state  peniten- 
tiary for  the  balance  of  his  natural  life. 
If,  after  considering  all  of  the  evidence  In 
the  case,  you  entertain  a  reasonable  doubt 
as  to  the  guilt  of  the  defendant  as  to  the 
crime  of  murder.  It  would  be  your  duty  to 
acquit  him  as  to  that  charge,  and  further 
determine  whether  he  to  guilty  of  man- 
slaughter, and.  If,  after  considering  all  of 
the  evidence  in  the  case,  you  should  deter- 
mine that  the  defendant  was  guilty  of  man- 
slaughter In  either  the  first  or  second  degree 
under  the  evidence  and  the  law  as  given  to 
you  by  the  court,  you  would  so  find  by  your 
verdict  and  your  judgment  would  be:  'We, 
the  jury  in  the  above  entitled  action,  find 
the  defendant  guilty  of  manslaughter  In 
(naming  whether  In  the  first  or  second  de- 
gree).' "  The  jury  found  the  accused  guilty 
"as  charged  in  the  information,"  and  fixed 
"his  punishment  at  death."  The  motion  In 
arrest  of  judgment  on  the  ground  of  uncer- 
tainty In  the  verdict  was  properly  overruled. 
The  judgment  of  the  circuit  court  is  af- 
firmed. 


NEELEY  V.  ROBERTS. 

(Supreme  Oonrt  of  Sonth  Dakota.    Sept  4, 
1909.) 

1.  Appeai,  and  Ebbor  (8   1051»)— Hakhlesb 
Errob— Aduission  of  Evidence. 

Error  in  admission  of  an  opinion  over  ob- 
jections to  the  question  is  not  ground  for  rever- 
sal ;  the  fact  soufcbt  to  be  established  by  it  be- 
ing proved  by  other  uncontradicted  evidence,  to 
which  such  objections  did  not  exist,  and  con- 
cerning which  no  error  la  assigned. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error.  Cent  Dig.  IS  4161-4170;  Dec  Dig.  S 
1051.»] 

2.  Animau  (S  25*)— Action  fob  Keep— Evi- 
dence. 

A  finding  that  a  flock  of  sheep  of  a  certain 
number,  as  increased  by  lambs  in  two  successive 


•F»r  oUmt  cases  SM  s«m«  topic  and  section  NUMBBR  in  Dm.  *  Am.  Digs.  1907  to  date,  *  ReporUr  Indeses 


Digitized  by  LjOOQIC 


656 


122  NORTHWESTERN  BBPORTBB. 


(na 


springs,  was  of  a  certain  greater  number,  held 
not  against  the  clear  preponderance  of  eviaence. 
[EA.  Note.— BV)r  other  cases,  see  Animals,  Dec 
Dfg.  {  25.»] 

Appeal  from  Circuit  Court,  Hughes  County. 

Action  by  Thomas  Neeley  against  David  E. 
Roberts.  Judgment  for  defendant  Plaintiff 
appeals.    Affirmed. 

See,  also,  17  S.  D.  161.  95  N.  W.  821. 

John  A.  Holmes,  for  appellant  U.  S.  O. 
Cherry,  for  respondent 

HANEY,  P.  J.  The- parties  to  this  litiga- 
tion entered  into  a  written  contract,  whereby 
It  was  agreed  that  the  plaintiff  should  keep 
and  care  for  a  flock  of  sheep  belonging  to  the 
defendant  for  five  years,  and  then  receive 
one-half  of  the  flock  for  his  services.  At  the 
end  of  the  contract  period  the  sheep  and  their 
Increase  having  been  kept  and  cared  for  by 
the  plaintiff,  a  controversy  arose  concerning 
the  division  of  the  flock  and  numerous  Items 
of  account.  No  settlement  was  effectM.  All 
the  sheep  then  living  and  not  sold  remained 
with  the  plaintiff.  About  one  month  later 
this  action  was  commenced.  It  was  referred 
to  a  referee,  who  tried  the  cause  and  filed  his 
report;  bis  decision  being  favorable  to  the 
plaintiff.  The  circuit  court  erroneously  set 
aside  the  decision  of  the  referee  and  ordered 
a  new  trial,  which  was  had  before  the  court 
without  a  Jury,  on  Docember  8,  1900,  result- 
ing in  a  judgment  from  which  the  plaintiff 
appealed  to  this  court  Such  Judgment  was 
reversed,  and  the  cause  remanded,  with  direc- 
tions to  accept  the  referee's  report,  and  to 
enter  a  Judgment  thereon  consistent  with  the 
facts  found  therein,  the  changes  in  the  condi- 
tion of  the  property,  and  situation  of  the  par- 
ties subsequent  to  the  trial  before  the  referee, 
and  the  views  expressed  by  this  court  Nee- 
ley V.  Roberts,  17  S.  D.  161,  95  N.  W.  921. 
In  the  meantime  the  sheep  were  sold  by  the 
plaintiff,  and  $2,740,  as  proceeds  of  such  sale, 
passed  into  the  possession  of  a  receiver.  Sub- 
sequently the  cause  was  again  heard  pursu- 
ant to  the  mandate  of  this  court  when  the 
court  found  that  the  number  of  sheep,  which 
was  857  at  the  time  of  the  trial  before  the 
referee,  together  with  the  Increase  thereof, 
continued  in  plaintUTs  possession  until  the 
26th  day  of  August,  1899;  that  between 
January  6,  1898,  and  August  26,  1899,  the 
plaintiff  sold  100  fat  wethers  belonging  to 
the  flodc,  receiving  $300,  no  part  of  which 
was  accounted  for  by  him  to  the  defendant; 
that  agreeably  to  the  report  of  the  referee, 
plaintiff  was  entitled  to  $801.08  for  caring 
for  the  flock  from  and  after  the  expiration 
of  the  contract  period,  to  be  deducted  from 
the  value  of  the  sheep  sold  or  disposed  of  by 
the  plaintiff;  that  the  flock  found  by  the 
referee  to  consist  of  857  sheep  at  the  time  of 
trial  before  him,  October  12,  1897,  was  in- 
creased In  the  spring  of  1898  by  a  crop  of 
lambs,  and  again  Increased  In  the  spring  of 


1899  by  another  crop  of  lambs,  and  consisted 
on  August  26,  1899,  of  1,467  sheep ;  that  the 
value  of  the  flodc  on  the  last-mentioned  date 
was  $4,479,  which  was  the  value  of  the  en- 
tire flock,  including  the  above  mentioned  fat 
wethers  previously  sold;   that  on  August  26, 

1899,  the  plaintiff,  in  violation  of  a  restrain- 
ing order  previously  issued  by  the  court  sold 
and  disposed  of  the  flock  for  the  sum  of  $2,- 
806.50;  that  out  of  this  sum  the  plaintiff 
deposited  with  P.  F.  McClure,  receiver  of 
the  property  In  controversy,  $2,740,  and 
from  these  facts  the  court  made  the  following 
conclusions  of  law:  "The  plaintiff  is  entitled 
to  recover  herein  upon  the  accounting  between 
the  plaintiff  and  the  defendant  the  sum  of 
$801.08  for  herding,  caring,  and  keeping  said 
flo(&  of  sheep  from  the  26th  day  of  November, 
1896,  to  the  date  of  the  trial  before  the  said 
referee.  (2)  The  plaintiff  should  be  charged 
upon  the  accounting  between  the  plaintiff  and 
the  defendant  the  full  value  of  the  said  flock 
of  sheep  on  the  26th  day  of  August  1899,  the 
date  upon  which  he  sold  and  disposed  Of  the 
same.  Including  the  said  100  fat  wethers  sold 
and  disposed  of  by  him  as  aforesaid,  amount- 
ing in  the  aggregate  to  the  sum  of  $4,779,  and 
leaving  the  total  amount  to  be  charged  to  the 
plaintiff  after  deducting  the  said  $801.08 
the  sum  of  $3,977.92.  (3)  Of  said  sum  of  $3,- 
977.92  the  plaintiff  is  entlUed  to  be  credited 
with  one-half,  being  the  sum  of  $1,988.96,  and 
the  defendant  is  entitled  to  be  credited  with 
one-half,  being  the  sum  of  $1,988.86.  (4) 
The  defendant  Is  entitled  to  the  Judgment  of 
this  conrt  directing  that  the  said  receiver 
pay  to  liim  or  to  his  attorney,  U.  S.  O.  Cherry, 
out  of  the  said  sum  of  $2,740,  now  in  the 
hands  of  the  said  receiver,  the  said  sum  of 
$1,988.96.  (5)  The  plaintiff  is  entitled  to 
the  Judgment  of  this  court  that  there  be  paid 
to  him  or  to  his  attorney,  John  A.  Holmes, 
out  of  the  tiands  of  the  receiver,  the  entire 
balance  remaining  after  the  payment  to  the 
defendant  of  the  said  sum  of  $1,988.96." 

Upon  the  last  hearing,  October  8,  1903,  it 
was  stipulated  that,  for  the  purpose  of  deter- 
mining wiiat  Judgment  should  be  entered  in 
pursuance  of  the  mandate  of  this  court,  the 
evidence  produced  by  the  respective  parties 
at  the  trial  before  the  court  on  December  8, 

1900,  should  be  deemed  and  considered  as 
the  record  upon  which  the  cause  should 
then  be  heard,  and  that  the  wool  clip  for 
the  years  1898  and  1899,  received  by  the 
plaintiff  should  pay  for  the  keeping  of  the 
sheep  during  those  years.  The  evidence 
thus  Introduced  appears  in  the  abstract  on 
the  present  appeal.  On  direct  examination 
plaintiff  testified:  "That  flock  of  sheep  con- 
sisted on  or  about  the  26th  day  of  August 
1899,  of,  I  think  it  was  1,020,  I  am  not 
positive;  between  1010  and  1,020.  When 
we  got  the  number  after  we  counted  them 
out,  there  were  so  many  Iambs  and  so 
many  old  ones.    I  do  not  remember  now  how 


•For  other  cues  leo  uma  topic  and  aecUon  NUMBBR  In  Dec.  ft  Am.  Dlgi.  1907  to  d«te,  *  Reporter  ladexei 


Digitized  by 


Google 


S.D.) 


I7EELBY  y.  ROBERTS. 


667 


many  lambs  there  were.  I  have  forgotten 
the  number  of  old  ones,  tut  the  lambs  and 
sheep  were  about  1,020.  On  the  26th  day 
of  August,  1899,  I  delivered  the  sheep  here. 
I  sold  them.  There  were  8  to  10  culls  that 
were  kept  out  There  were  10  culls,  I  think. 
I  had  Mr.  McCIure  make  out  the  bill  of  sale 
of  the  1,020  to  these  parties,  the  number  of 
lambs  and  the  number  of  old  ewes,  but  I 
didn't  keep  the  record  of  it.  He  just  took 
the  record  and  made  up  the  bill  of  sale.  I 
don't  know  as  we  have  got  It  down.  I  think 
he  kept  a  memorandum  of  it — of  the  number 
of  lambs  and  the  number  of  old  sheep.  I 
didn't  keep  a  record  of  it  only  Just  on  a  slip 
of  paper  as  we  counted  them  out  I  have  not 
that  slip  of  paper  now.  I  do  not  know  where 
it  la.  I  am  pretty  positive  that  the  exact  num- 
ber of  sheep  that  I  sold  to  these  Iowa  parties, 
and  for  which  Mr.  McClure  made  out  a  bill  of 
sale,  was  1,020  lambs  and  all,  but  I  do  not 
remember  bow  many  of  them  was  sheep  and 
how  many  lambs."  On  cross-examination  he 
testified  as  follows:  "I  did  not  keep  any 
record  of  the  number  of  lambs  that  came  dur- 
ing the  spring  of  1899  during  the  lambing 
season.  I  did  not  keep  any  account  of  how 
many  came  because  some  of  them  came  early 
and  they  died.  About  the  only  way  we  kept 
count  was  of  the  ones  we  sold.  The  number 
of  those  I  don't  know.  We  docked  the  lambs 
in  the  spring  after  the  lambing  season  of  1899. 
We  always  counted  the  lambs  at  the  time  of 
docking.  I  don't  remember  how  many  tBere 
were.  I  haven't  an  account  of  it.  I  didn't 
preserve  an  account  of  the  number  of  the  in- 
crease of  the  flock  during  the  season  of  1899. 
Have  nothing  that  I  can  refer  to  to  ascer- 
tain what  was  the  increase  of  that  flock  dur- 
ing that  season.  Didn't  keep  any  record  of 
the  number  of  the  increase,  i  do  not  re- 
meml>er  whether  we  counted  the  Iambs  in  the 
spring  or  during  the  lambing  season  of  1808. 
I  presume  we  counted  them.  Made  no  record 
of  that  count.  I  am  not  able  to  tell  how 
many  lambs  came  during  the  lambing  season 
of  1898  and  lived.  I  have  no  record  of  any 
kind,  nor  any  recollection,  nor  any  means  of 
informing  the  court  as  to  how  many  lambs 
were  added  or  sheep  were  added  to  the  flock 
by  reason  of  Increase  during  the  season  of 
1898,  or  the  season  of  1899.  And  the  same  Is 
true  of  the  season  of  1897." 

Newell,  a  witness  on  behalf  of  the  defend- 
ant testified  as  follows :  "I  have  lived  here 
nine  years.  Have  been  engaged  in  the  sheep 
business  five  years  last  July.  I  have  seen 
several  times  the  flock  of  sheep  involved  In 
this  suit  Last  saw  them  along  during  the 
summer  of  1899.  I  was  down  at  the  yards 
the  day  that  they  were  shipped  out  I  did 
not  notice  them  particularly.  I  noticed  them 
enough  to  notice  the  condition  they  were  in. 
They  were  In  good  condition.  They  were 
range  sheep.  They  would  grade  as  a  medium 
floc'k,  medium  grade.  At  the  time  I  snw 
them  last  they  appeared  to  be  in  good  grow- 

122N.W.— 42 


Ing  condition.  •  •  •  Have,  known  the 
flock  of  sheep  for  some  five  years  back. 
•  •  •  My  experience  has  been  such  that 
I  am  able  to  state  what  is  the  usual  and  fair 
percentage  of  increase  of  a  properly  handled 
flock  of  sheep  of  that  character.  The  usual 
and  fair  increase  of  sheep  per  annum  since 
February  2,  1897,  of  a  flock  of  this  char- 
acter would  be  75  per  cent  on  the  breeding 
of  ewes.  That  is  75  per  cent  for  each  year. 
I  am  taking  into  consideration  in  that  esti- 
mate the  decrease  in  the  flock  and.  one  thing 
and  another,  the  usual  percentage.  I  am 
estimating  this  flock  from  my  knowledge  of 
it  I  should  say  it  would  t>e  75  per  cent  in- 
crease. I  saw  the  flock  In  the  summer  of 
1898.  They  were  out  on  Mr.  Neeley's  range. 
Saw  them  several  times  during  the  summer 
of  1898.  From  my  observation  of  them  the 
number  of  lambs  in  that  flock  at  that  time 
would  bear  out  my  estimate  of  the  per- 
centage of  increase.  In  1899  I  saw  them,  and 
they  seemed  to  be  in  fair  growing  condition, 
a  prosperous  bunch  of  sheep.  I  should  Judge 
the  increase  would  be  about  the  same.  From 
my  observation  of  the  percentage  of  In- 
crease the  percentage  of  lambs  seemed  to  be 
about  75  per  cent  of  the  original  flock." 

Dotson,  another  witness  on  behalf  of  de- 
fendant, testlfled  as  follows:  "I  was  ac- 
quainted with  this  band  of  sheep.  Saw 
them  several  times,  several  times  prior  to  the 
last  trial  before  the  referee,  and  several 
times  subsequent  to  that  I  saw  them  a 
month  or  six  weeks  after  the  trial  in  1897. 
The  flock  was  then  in  very  good  condition. 
Have  been  in  the  sheep  business  for  a  good 
many  years.  Have  handled  sheep  for  15  or 
20  years  back,  not  extensively  all  the  time, 
though.  Handled  them  exclusively  since  1894. 
This  flock  of  sheep,  I  would  Judge,  would 
grade  medium  and  low  medium.  I  would 
grade  them  as  a  medium.  You  have  to  Judge 
the  condition  of  the  wool.  I  would  grade 
these  as  good  medium  sheep.  The  condition 
of  the  band  when  I  first  saw  them  after  the 
last  trial  was  very  good.  They  were  what 
you  would  call  a  mixed  band.  I  could  not 
say  positive,  but  I  shouldn't  Judge  that  there 
were  any  great  amount  of  old  sheep  among 
them.  About  the  same  amount  that  would 
likely  be  in  a  mixed  band.  I  saw  them  again 
after  that  Then  I  saw  them  another  time. 
I  think  I  saw  them  three  times  after  the 
former  trial.  I  never  saw  them  afterwards 
up  close  enough  to  pass  an  opinion.  I  looked 
them  over  after  the  last  trial  with  the  view 
to  purchase  them.  That  was  directly  after 
the  trial.  I  examined  them  pretty  closely. 
At  one  time  I  looked  them  over  pretty  thor- 
oughly. During  all  these  times  they  were 
in  very  good  condition.  From  my  experience 
in  handling  sheep  I  should  say  the  f&lr  and 
usual  average  increase  and  percentage  of  in- 
crease on  a  band  of  sheep  of  that  kind  ^op- 
erly  handled  should  be  about  75  per  cent 
to  80  per  cent  per  annum." 


Digitized  by 


Google 


658 


122  NORTHWESTERN  BEPORTEB. 


(S.DL 


ScoTlIle,  also  a  witness  on  behalf  of  the 
defendant,  having  testified  that  he  resided  at 
Ft.  Pierre,  had  been  engaged  in  the  sheep 
business  17  years,  during  which  period  he 
had  handled  all  the  way  from  3,000  to  7,000 
head,  and  that  his  experience  In  the  handling 
of  sheep  bad  been  such  as  to  familiarize  him 
with  the  percentage  of  Increase  of  a  flock 
of  ewes,  was  asked  this  question:  "From 
your  knowledge  and  experience  what  would 
be  a  fair  percentage  of  Increase  of  a  flock 
of  ewes  of  medium  grade  range  sheep  per 
annum?"  To  this  question  plaintiff  objected 
■  on  the  ground  that  no  proper  foundation  had 
been  laid,  that  it  was  hearsay,  and  not  the 
best  evidence.  The  objection  was  overruled. 
The  witness'  opinion  as  to  the  percentage  of 
Increase  was  practically  the  same  as  that 
glvoi  by  Newell  and  Dotson.  As  the  char- 
acter of  the  flock  and  the  conditions  sur- 
rounding it  were  not  clearly  defined  by  the 
hjrpothetlcal  question,  and.it  does  not  appear 
that  this  witness  ever  saw  the  sheep,  it  Is 
doubtful  whether  bis  testimony  on  this  point 
was  admissible,  but  Its  admission  Is  not 
ground  for  reversing  the  Judgment  because 
the  fact  sought  to  be  established  by  It  was 
proved  by  other  uncontradicted  evidence  to 
which  the  same  objections  did  not  exist,  and 
concerning  which  no  errors  are  assigned  In 
this  court.  Henniston  v.  Green,  11  S.  D.  82, 
75  N.  W.  819;  Morris  v.  Hubbard,  14  8.  D. 
525,  86  N.  W.  25. 

In  view  of  the  unsatisfactory  character  of 
the  plaintiff's  testimony  regarding  the  in- 
crease subsequent  to  the  trial  before  the  ref- 
eree, bis  confessed  failure  to  keep  any  record 
of  the  Increase  and  loss,  and  the  evidence  of 
what  the  Increase  ordinarily  would  have  been 
under  the  circumstances  and  conditions  In 
which  this  flock  was  kept,  we  cannot  con- 
clude that  there  was  a  dear  preponderance 
of  the  evidence  against  the  finding  of  the 
learned  circuit  court  as  to  such  increase,  and 
under  the  rule  uniformly  followed  by  this 
court  Its  finding  on  that  Issue  must  be  sus- 
tained. Jackson  v.  Prior  Hill  Mining  Co., 
19  8.  D.  453,  104  N.  W.  207. 

Finding  no  reversible  error,  the  Judgment 
and  order  appealed  from  are  aflSrmed. 


BROWN  T,  ED8ALL. 

(Supreme  Court  of  South  Dakota.    Sept.  8, 
1909.) 

1.  Good  Wnx  (S  6*)— Sale. 

In  an  action  for  breach  of  a  contract  by 
which  defendant  agreed  to  discontinue  the  prac- 
tice of  medicine  and  ptiarmacy  upon  selling  his 
drug  store  to  plaintiff,  the  contract,  together 
with  the  fact  that  defendant,  at  the  time  it  was 
executed,  published  a  newspaper  notice  advising 
his  patients  that  he  bad  given  up  practice  and 
prewnted  plaintiff  as  his  successor,  and  asked 
for  hira  a  cordial  welcome,  showed  a  sale  of  the 


good  will  of  his  medical  practice  and  pharmacy 
business. 

[Ed.  Note.— ror  other  cases,  see  Good  Willr 
Cent.  Dig.  {  2;   Dec.  Dig.  {  6.*] 

2.  CoifTRACTS    (i  90*)— CoWBIDEBATIOir— WBTT- 

TEN  Instrument— PsEpuMFTioNS. 

A  written  agreement  is  prima  facie  evi- 
dence of  a  valid  consideration. 

[Dd.   Note. — For  other  cases,   see   Contracta, 
Cent.  Dig.  {  410;    Dec.  Dig.  S  90.*] 

3.  CoNTBACTS  (g  340*)- Actions— Pu:ading — 
Answer— Want  of  Considebation— Sutfi- 
ciENCT  OF  Allegations. 

In  an  action  for  the  breach  of  a  written 
agreement,  where  defendant  admitted  the  ezecn- 
tion  of  the  agreement  alleged,  he  should  liave 
specifically  alleged  want  of  consideration  in  or- 
der to  raise  that  defense,  and  did  not  do  so  by 
a  general  denial  preceding  the  admission  of  it» 
execution. 

[EM.   Note.— For  other  cases,  see  Contracts^ 
Cent.  Dig.  {{  1713-1730;  Dec.  Dig.  I  340.*] 

4.  CONTBACTS  a  312*)— Bbeach. 

Rev.  Civ.  Code,  5  1277,  provides  that  every 
contract  which  restrains  one  from  following  a. 
lawful  business  or  profession,  except  as  therelir 
provided,  is  to  that  extent  void.  Section  1278' 
permits  one  selling  the  good  will  of  a  business, 
etc.,  to  agree  to  refrain  from  "carrying  on"  a 
similar  business  within  a  specified  county  or  city 
so  long  as  the  bnyer  carries  on  a  like  basiness 
there.  Defendant  sold  to  plaintiff  a  drug  store 
and  medical  practice,  together  with  their  good 
will,  and  agreed  not  to  practice  pharmacy  or 
medicine  in  the  town  for  five  years,  anlesa  In 
plaintiff's  interest.  Defendant  treated  two  or 
three  patients  during  the  five  years,  making  a 
few  calis  on  each  one,  and  also  wrote  some  eight 
prescriptions,  the  majority  of  them  t>eing  writ- 
ten in  the  town,  and  there  was  some  evidence 
offered  to  show  desire  and  motive  by  defendant 
to  injure  plaintiff's  business.  Held,  that  such 
contracts,  being  exceptions  to  the  general  rule, 
should  not  l>e  extended  l>eyond  their  express 
terms,  and  there  must  l>e  a  substantial  breach 
by  defendant  by  actually  engaging  in  the  basi- 
ness of  pharmacy,  or  practicing  medicine,  I>e- 
fore  plaintiff  could  recover  a  forfeiture  provided, 
and  the  facts  stated  did  not  show  such  a  breach. 
[Ed.  Note. — For  other  cases,  see  Contracts^ 
Cent.  Dig.  i  1279% ;   Dec.  Dig.  {  312.»] 

6.  Contbacts  (8  849*)— Actions— Admisbibh.- 

ITT  .OF  Evidence— Bbeach. 

In  an  action  for  breach  of  an  agreement  by 
defendant,  to  refrain  from  practicing  medicine 
or  pharmacy,  npon  selling  bis  drug  store  and 
medical  business  to  plaintiff,  toi;etber  with  their 
good  will,  where  plaintiff's  evidence  showed  that 
defendant  had  thereafter  treated  several  patients 
and  written  eight  prescriptions,  and  certain  let- 
ters were  admitted  to  show  desire  and  motive 
by  defendant  to  injure  plaintiff's  business,  it 
was  error  to  exclude  evidence  offered  by  defend- 
ant that  the  new  patients  he  treated  would  not 
have  called  npon  plaintiff  for  treatment,  and 
that  certain  calls  made  were  not  professional; 
such  evidence  tending  to  show  that  defendant 
was  conforming  to  the  spirit  of  the  agreement 

[EM.    Note.— For  other  cases,   see  Contracta, 
Cent.  Dig.  {{  1781-1818;   Dec.  Dig.  {  349.*] 

6.  Contbacts  (S  353»)  —  Actions  —  Inbtbuc- 
TioNS— Applicability  to  Evidence. 

In  an  action  for  breach  of  an  agreement  by 
defendant  to  refrain  from  practicing  medicine  or 
pharmacy  upon  selling  his  drug  store  and  med- 
ical business  to  plaintiff,  except  for  his  interest, 
where  the  evidence  showed  that  almost  the  only 
substantial  service  defendant  rendered  was  to 
a  patient  for  the  treatment  of  whom  defendant 
testified  he  had  obtained  piaintifPe  consent 
which,  however,  plaintiff  denied,   it  was  error 


•For  oUier  cases  im  *ajna  topic  and  nctloo  NUUBBR  in  Dae.  ft  Am.  Diss.  1907  to  data^  *  Baportar  Indaxaa 


Digitized  by 


Google 


S.  D.). 


BEOWN  T.  KD8ALL. 


659 


to  refnae  to  instnict  tbat.  If  defendant  obtain- 
ed plalntltTs  permisalon  to  treat  certain  pa- 
tients, plaintiff  could  not  recover  under  tlie  con- 
tract for  snch  treatment. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Dec.  Dig.  {  863.*] 

7.  Afpeai.  and  Gbbob  (|  1067*)  —  Habio-ess 

Bbbob— Inbtbdctions— Refusai.. 

It  lieing  impossible  to  determine  how  much 
weight  tbe  jury  gave  to  the  evidence  relating 
to  the  treatment  of  such  patient  in  finding  a 
breach  of  the  agreement  by  plaintiff,  the  error 
in  refusing  the  instruction  was  reversible. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Gent  Dig.  i  4229;   Dec.  Dig.  i  1067.*] 

Appeal  from  Circuit  Court,  Codington 
County. 

Action  by  P.  H.  Brown  against  J.  L.  Ed- 
sall.  From  a  Judgment  for  plaintiff,  and 
from  an  order  denying  a  new  trial,  defend- 
nt  appeals.    Beversed. 

Case  &  Shurtleff,  for  appellant.  Haten  & 
liOucks  and  Frank  McNnlty,  for  respondent 


y 


WHITING,  J.  This  cause  Is  before  this 
court  upon  an  appeal  from  the  judgment  In 
the  trial  court,  and  from  an  order  of  said 
court  denying  a  new  trial  heroin. 

The  action  Is  one  brought  to  recover  the 
sum  of  $500  as  liquidated  damages  for  a 
breach  of  a  written  contract.  It  la  alleged 
in  the  complaint  that  plaintiff  purchased  of 
the  defendant  a  stock  of  drugs  located  at 
Bradley,  S.  D.;  that  tbe  said  purchase  in- 
dnded  the  good  will  of  the  business  of  de- 
fendant both  as  a  pharmacist  and  druggist 
and  as  a  physician  at  said  town  of  Brad- 
ley. Plaintiff  alleges  the  payment  of  a  con- 
sideration for  the  above,  and  that  at  the 
same  time  and  as  part  of  said  transaction 
defendant  entered  into  a  contract  in  words 
and  figures  as  follows,  to  wit:  "Bradley, 
S.  D.,  April  8,  1902.  We,  the  undersigned, 
P.  H.  Brown  and  J.  L.  Edsall,  both  of  Brad- 
ley, S.  D.,  make  tbe  following  contract:  J. 
L.  Edsall  agrees  to  discontinue  the  practice 
of  pharmacy,  medicine  and  surgery  in  Brad- 
ley, Clark  county.  So.  Dak.,  for  the  succeed- 
ing five  years  except  in  the  employment  or 
interest  of  P.  H.  Brown,  and  agrees  to  for- 
feit $500.00  in  default  of  this  agreement  If 
P.  H.  Brown  leaves  Bradley  within  this 
time  this  contract  is  to  be  void.  J.  L.  Ed- 
salL  P.  H.  Brown."  Plaintiff  alleges  that 
defendant  broke  such  contract  by  practicing 
medicine  and  surgery  at  Bradley  during  the 
five  years  mentioned  in  said  contract;  that 
snch  practicing  medicine  and  surgery  was 
not  done  in  the  employ  of  plaintiff  nor  in 
the  interest  of  plaintiff.  Answering  this 
complaint,  defendant  interposed  a  general 
denial,  admitting  the  execution  of  the  instru- 
ment above  set  out,  but  alleging  that  such 
agreement  was  void,  being  In  restraint  of 
trade;  and  defendant  pleaded  the  plaintiff 
had  not  been  damaged  in  any  manner  by 
him.    Defendant  set  up  other  purported  de- 


fenses not  necessary  at  tbto  tlme'ib  notice^ 
save  and  except  allegations  to  tbe  effect  that 
on  certain  occasions  he  called  upon  persons 
in  extremis,  and  that  he  performed  certain 
professional  services  by  proscribing  for  such 
patients  without  compensation,  that  in  all 
cases  the  parties  would  not  have  called  and 
employed  plaintiff  and  so  advised  defendant; 
and  defendant  alleges  that  he  did  not  inter- 
fere in  the  practice  of  plaintiff,  and  alleges 
upon  information  that  the  persons  so  served 
by  bim  would  have  had  other  medical  serv- 
ices than  that  of  plaintiff  if  defendant  had 
not  answered  their  call,  and  that  as  to  other 
medical  services  performed  by  defendant  de- 
fendant alleges  that  same  were  given  at  the 
request  and  with  the  consent  of  plaintiff. 
During  the  course  of  the  trial  all  of  these  al- 
legations tending  to  explain  and  excuse  the 
services  performed  by  defendant  were  over 
his  objection  stricken  from  the  answer. 

There  are  numerous  assignments  of  error, 
but  in  the  view  which  we  take  of  this  cas^ 
holding,  as  we  do,  that  the  lower  court  must 
be  reversed  and  a  new  trial  ordered.  It  is 
unnecessary  to  consider  but  a  few  of  such 
assignments.  However,  as  some  of  the  same 
questions  may  arise  upon  a  new  trial  as  are 
raised  on  this  appeal,  we  deem  It  best  to  de- 
termine the  correctness  of  certain  rulings 
complained  of  other  than  the  rulings  upon 
which  the  cause  Is  reversed.  This  case  was 
tried  to  a  Jury,  and  -when  plaintiff  rested 
his  case  in  chief,  as  well  as  at  the  close  of 
all  the  testimony,  the  defendant  moved  for  a 
direction  of  verdict  Among  the  grounds  for 
such  motion  is  the  contention  by  defendant 
and  appellant  that  the  agreement  sued  upon 
was  void  under  the  rule  laid  down  in  this 
court  in  the  case  of  Prescott  v.  Bidweli,  18 
S.  D.  64,  99  N.  W.  93;  it  being  claimed  by 
defendant  that  there  was  no  sale  of  the 
good  will  of  such  business  as  practicing  phy- 
sician. Upon  the  sale  of  the  stock  of  drugs 
a  bill  of  sale  was  executed,  which  in  no 
manner  mentioned  the  good  will  of  the  busi- 
ness. At  the  same  time  the  building  where- 
in the  business  of  pharmacy  was  conducted 
was  sold  to  the  plaintiff.  There  was  no 
written  Instrument  given  by  these  parties 
wherein  there  was  any  mention  of  the 
good  will  of  either  the  pharmacy  business  or 
that  of  practicing  medicine  and  surgery.  Ap- 
pellant cites  authorities  In  support  of  the 
proposition  that  no  oral  testimony  can  be 
offered  to  extend  the  provisions  of  the  bill 
of  sale,  among  which  authorities  Is  the 
above  South  Dakota  case.  On  the  other 
hand,  it  will  be  noted  that  the  two  cases  are 
not  entirely  parallel ;  this  court  In  the  above 
South  Dakota  case  calling  particular  atten- 
tion that  in  no  case  had  the  good  will  ever 
been  held  to  have  been  conveyed  by  impli- 
cation, where  the  premises  in  which  busi- 
ness was  conducted  bad  not  been  leased  or 
sold  to  the  vendee  for  the  further  conduct 


•For  oUi«r  caMs  ■••  sain*  tople  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  *  Reporter  IndozM 


Digitized  by  VjOOQ  l€ 


660 


122  NOBTHWESTEBN  REPOBTEB. 


(S.D. 


of  bmlnew.  Bnt,  wltbont  IndmatlnK  wbat 
our  holding  woald  be  if  tbere  was  nothing 
to  aid  us  except  the  matters  above  mention- 
ed, yet  In  view  of  the  fact  that  tbere  was, 
before  the  case  closed,  offered  and  received 
In  evidence  a  notice  which  defendant  admits 
he  signed  and  caused  to  be  printed,  and 
wbich  notice  was  printed  In  the  Bradley  pa- 
per immediately  after  the  agreement  sued; 
upon  was  entered  into,  by  which  notice  the 
defendant  advised  his  patients  that  he  had 
decided  to  give  up  a  portion  of  his  profes- ' 
slonal  business  at  Bradley,  and  desired  to 
present  as  his  successor  Dr.  P.  B.  Brown, ' 
the  plaintiff  herein,  and  bespoke  for  him  a 
cordial  welcome,  we  think  there  was  ample 
evidence  to  show  a  sale  of  the  good  will, 
both  of  the  pharmacy  business  conducted  In 
the  building  sold  and  of  the  business  of 
practicing  medicine  and  surgery. 

Appellant  also  strenuously  contends  that 
the  agreement  sued  upon  was  entered  into 
after  and  entirely  separate  and  distinct  from 
the  sale  of  the  stock  of  goods,  and  that  there 
was  no  separate  consideration  for  such  agree- 
m&at,  and  for  that  reason  said  agreement  was 
not  binding  upon  him ;  and  the  appellant  com- 
plains because  the  trial  court  refused  to  sub- 
mit the  question  of  this  consideration  to  the 
Jury,  but  Instructed  the  Jury  that  such  agree- 
ment was  valid  and  entered  into  upon  suf- 
ficient consideration.  Appellant  has  cited  nu- 
merous authorities  in  .support  of  the  proposi- 
tion that  when  an  agreement,  such  as  is  the 
basis  of  this  suit,  is  entered  into  separate 
and  distinct  from  the  sale  of  the  good  will, 
tbere  must  be  a  separate  and  distinct  con- 
sideration for  the  agreement  to  refrain  from 
business.  Assuming  that  appellant  Is  right 
in  this  proposition,  yet  we  think  he  is  in  no 
position  to  raise  the  question  at  this  time 
owing  to  the  condition  of  the  pleadings  here- 
in. As  before  noted,  plaintiff  pleaded  the 
agreement  sued  upon  and  set  It  forth  in  his 
complaint,  and  defendant,  whOe  interposing 
a  general  denial,  admitted  the  execution  of 
this  agreement.  The  agreement  being  In  writ- 
ing, it  was  prima  facie  proof  of  a  valid  con- 
sideration, and,  having  admitted  the  execu- 
tion of  the  agreement,  we  think  that,  in  or- 
der to  raise  an  Issue  as  to  the  consideration 
of  same,  defendant  should  have  si>eclfically 
alleged  the  want  of  consideration,  and  no  Is- 
sue as  to  consideration  was  raised  by  the  gen- 
eral denial  followed  by  an  admission  of  the 
execution  of  such  written  Instrument 

Appellant  contends  that  there  was  not  suf- 
ficient evidence  to  Justify  the  court  in  sul>- 
mlttlng  to  the  Jury  the  question  as  to  wheth- 
er or  not  the  defendant  had  broken  the  agree- 
ment sued  upon,  the  breach  complained  of  be- 
ing that  defendant  had  practiced  medicine, 
and  plaintiff  further  contends  that,  even  if 
under  the  evidence  received  herein  such  ques- 
tion of  fact  should  have  beien  submitted  to  the 
Jury,  yet  that  the  court  erred  In  striking  out 
from'  defendant's  answer  certain  parts  there- 
of, hereinbefore  mentioned,  and  In  excluding  | 


certain  evidence  offered  In  line  with  swdi 

parts  of  the  answer,  and,  fprther,  that  the 
court  erred  In  not  giving  to  the  Jury  a  cer- 
tain instruction  requested  by  the  defendant. 

This  brings  ns  to  the  real  merits  of  this 
case,  and  to  the  questions  upon  the  determi- 
nation of  which  we  find  It  necessary  to  order 
a  reversal.  Under  our  statute  (section  1277, 
and  section  1278  of  the  Revised  Civil  Ciode) 
we  find  that  an  agreement  such  as  the  one 
sued  upon  is  an  exception  to  the  general  law 
forbidding  contracts  in  restraint  of  trade,  and 
for  this  reason  it  has  been  held  by  other 
courts,  and  certainly  should  be  held,  that 
such  an  agreement  should  in  no.  way  be  ex- 
tended from  its  express  terms  In  the  inter- 
preting thereof.  It  will  be  noted  that  under 
section  1278,  supra,  it  is  the  refraining  from 
"carrying  on"  a  business  which  may  be 
agreed  to.  We  call  attention  to  this  for  the' 
reason  that  it  makes  It  evident  tliat  the  law- 
makers did  not  Intend  to  allow  persons  to 
bind  themselves  so  that  a  party,  while  liv- 
ing up  to  the  spirit  of  the  agreement,  could 
be  held  as  having  broken  the  letter  thereof 
by  an  occasional  act  not  In  harmony  with  the 
agreement  And  in  this  particular  agreement 
which  is  now  before  us  It  will  be  noted  that 
the  forfeiture  agreed  upon  is  for  continuing 
or  engaging  in  the  practice  not  only  of  medi- 
cine and  surgery  but  of  pliarmacy,  and  yet 
plaintiff  claims  to  be  entitled  to  the  full 
amount  of  liquidated  damages  upon  the 
breach  of  only  one  part  of  said  agreement 
Admitting  that  he  wonld  be  entitled  to  so 
interpret  this  agreement,  yet  it  must  certain- 
ly be  held  that,  before  he  could  recover,  there 
should  be  a  substantial  breach  of  the  agree- 
ment, and,  In  view  of  the  amount  agreed  up- 
on as  liquidated  damages,  we  think  it  was 
clearly  in  the  minds  of  these  parties  that  any 
breach  which  would  give  rise  fo  the  recovery 
of  this  large  amount  must  be  one  caused  by 
the  actual  engaging  In  the  business  of  phar- 
macy or  the  actual  engaging  In  the  practice 
of  medicine  and  surgery. 

Giving  the  testimony  In  this  case  its  strong- 
est Interpretation  in  favor  of  the  plaintiff,  it 
would  appear  that  defendant  visited  some  two 
or  three  patients  during  the  time  covered  by 
the  agreement,  and  treated  such  patients, 
making  a  few  calls  to  each  one,  and  it  would 
appear,  also,  that  at  the  request  of  certain 
parties  he  wrote  some  eight  prescriptions,  the 
majority  of  which  were  written  at  Bradley, 
but  nothing  to  show  that  they  were  all  writ- 
ten there.  Plaintiff  offered  and  there  was  re- 
ceived in  evidence,  over  defendant's  objection, 
certain  letters.  The  purpose  of  their  offer  is 
hard  to  determine,  but.  If  material  for  any 
purpose  when  so  offered,  it  was  to  show  a 
state  of  mind  on  the  part  of  defendant  in- 
dicating a  desire  to  and  a. motive  for  injur- 
ing plalntltTs  business.  On  the  .other  hand, 
the  defendant  offered  testimony  which  would 
tend  to  show  as  set  forth  In  the  part  of  the 
answer  stricken  out  that  In  what  few  cases 
he  did  render  medical  services  it  was  to  pat- 


Digitized  by  VjOOQ  l€ 


B.D.) 


BROWN  T.  EDSALL. 


661 


ties  wbo  woald  not  have  called  plaintiff,  and 
who  bad  bo  adylsed  defendant, 'and  that  cer- 
tain calls  which  be  made  were  not  In  fact  in 
a  profecalonal  capacity.  This  evidence  was 
excluded,  and  we  think  wrongfully.  The  evi- 
dence found  in  the  letters  above  mentioned 
would  naturally  have  a  tendency  to  prejudice 
the  Jury  and  lead  tbem  to  give  undue  weight 
to  the  evidence  showing  medical  services  per- 
formed by  the  defendant  and,  in  view  of  such 
letters  being  received,  the  court  certainly 
should  have  allowed  everything  to  be  of- 
fered in  evidence  which  would  tend  to  show 
that  he  was  treating  the  plaintiff  fairly  un- 
der the  agreement  entered  into.  However,  in 
any  case,  we  do  not  think  there  were  suffl- 
dent  facts  shown  to  Justify  the  court  in  sub- 
mitting to  the  Jury  the  question  of  breach  of 
the  agreement,  as  we  do  not  believe  under  the 
evidence  received  there  was  aufDcient  to  show 
a  substantial  breach  of  the  agreement  In 
the  case  of  Hathaway  v.  Lynn,  75  Wis.  186, 
43  N.  W.  956,  6  L.  R.  A.  651,  we  have  a  case 
similar  to  this,  in  that  it  was  a  suit  to  re- 
cover liquidated  damages  where  it  appeared 
without  dispute  that  upon  several  occasions 
there  bad  been  a  technical  breach  of  the 
agreement  but  the  court  calls  attention  to 
the  fact  that  there  was  nothing  In  the  evi- 
dence from  which  it  could  be  inferred  that 
the  plaintiff  bad  suffered  any  actual  dam- 
ages, so  that  outside  of  the  agreement  for 
stipulated  damages  the  plaintiff  at  the  best 
coald  only  have  recovered  nbmlnal  damages. 
Then  In  line  with  a  long  list  of  decisions, 
holding  that  proof  of  actnal  damage  Is  not 
necessary  before  plaintiff  can  recover,  the 
Wisconsin  court  said:  "This  action  is  brought 
upon  the  theory  that  the  sum  of  $200  speci- 
fied In  the  agreement  is  liquidated  damages 
for  any  breach  of  the  requirements  thereof, 
and  snch  is  |he  contention  of  the  plaintiff. 
For  the  purposes  of  the  case,  the  correctness 
of  this  proposition  will  be  conceded."  The 
court  continues  as  follows:  "In  such  a  case, 
before  any  liability  to  pay  the  liquidated 
damages  can  attach  to  the  party  in  default, 
he  must  have  been  guilty  of  a  substantial 
breach  of  his  agreement,  a  breach  which  has 
resulted  in  something  more  than  mere  nom- 
inal damages  to  the  other  contracting  party. 
This  rule  Is  so  manifestly  Just  that  no  dis- 
cussion of  It  is  necessary." 

In  tbe  case  of  Greenfield  v.  Oilman,  140 
N.  Y.  168,  85  N.  B.  435,  the  plaintiff  sought 
to  recover  upon  an  agreement  entered  into 
by  the  defendant  agreeing  not  to  practice 
medicine,  and  tlie  court,  ,In  the  interpreta- 
tion of  the  agreement  in'  that  case  so  in- 
terpreted that  in  its  effect  it  was  the  same 
as  the  agreement  in  the  case  at  bar  so  far 
as  It  pertains  to  tbe  practice  of  medicine, 
says:  "Wlille  the  law  to  a  certain  extent 
tolerates  contracts  in  restraint  of  trade  or 
business  when  made  between  vendor  and 
pnrcbasor,  and  will  uphold  them,  they  are 
not  treated  with  special  indulgence.  They 
are  Intended  to  secure  to  tbe  purchaser  of 


the  good  will  of  a  trade  or  business  a  guar- 
anty against  the  competition  of  the  former 
proprietor.  When  this  object  is  accomplish- 
ed. It  will  not  be  presumed  that  more  was 
intended,"  In  the  New  York  case  It  appear- 
ed that  the  defendant  was  both  a  doctor 
and  pharmacist  that  be  bad  attended  one 
patient  and  for  patients  calling  at  the  drug 
store  be  had  prescribed  for  them  and  com- 
pounded prescriptions.  The  court  held  that 
this  was  no  breach  of  tbe  contract  he  had 
entered  into.  It  is  true  that  in  discussing 
the  same  tbey  referred  to  the  fact  that  it 
was  in  the  line  of  tbe  custom  of  pharmacists 
in  many  cases  to  put  up  prescriptions  of 
their  own,  and  the  plaintiff  in  the  case  at 
bar  in  discussing  the  New  York  case  in  his 
brief  contends  that  such  prescribing  was  In 
no  sense  "practicing  medicine."  We  fail  to 
be  able  to  distinguish  tbe  difference  between' 
a  doctor  prescribing  medicine  at  the  patient's 
home  and  prescribing  the  same  when  behind 
the  pharmacist's  table,  and,  if  it  is  not  pre- 
scribing medicine  for  a  pharmacist  to  make 
out  a  prescription  and  fill  the  same,  then 
certainly  the  plaintiff  In  the  case  at  bar  has 
no  reason  for  complaint  on  account  of  the 
defendant's  having  written  prescriptions, 
which  appear  to  have  been  written  without 
any  charge,  and  where  the  only  profit  deriv- 
ed therefrom  was  derived  by  the  plaintiff  in 
filling  such  prescription  at  his  drug  store. 
In  the  case  of  Nelson  et  al.  v.  Johnson,  38 
Minn.  256,  36  N.  W.  868,  wherein  there  was 
an  agreement  not  to  engage  in  a  certain  busi- 
ness either  directly  or  Indirectly  for  five 
yean,  the  said  business  l)elng  tbat  of  a 
lumber  dealer,  tbe  Minnesota  court  uses  these 
words:  "Tbe  words  'directly  or  indirectly' 
emphasize  tbe  agreement,  and  permit  no 
evasion  of  its  purpose  and  object.  To  en- 
gage bis  services  to  or  In  assisting  a  rival 
dealer  in  tbe  same  business  to  solicit  and 
make  sales  and  to  influence  buyers  in  tbat 
market  Including  bis  old  customers, 'would, 
we  think,  I>e  fairly  within  tbe  terms  of  the 
contract  But  it  refers  to  engaging  In  busi- 
ness. It  does  not  extend  merely  to  Isolated 
acts  which  might  tend  to  interfere  with  the 
plaintiff's  business,  or  to  occasional  services 
voluntarily  rendered  for  the  convenlenqe  or 
accommodation  of  another  in  good  faith." 
In  connection  with  this  last  decision,  we 
wish  again  to  call  attention  to  tbe  words  of 
our  statute  (section  1278,  supra),  which  con- 
trols the  contract  herein,  and  which  section 
only  permits  an  agreement  to  refrain  from 
"carrying  on"  a  business. 

If,  bowever,  the  trial  court  was  right  in 
submitting  the  question  of  breach  of  contract 
to  the  Jury,  and  the  Jury  were  Justified  un- 
der the  evidence  as  It  stood  and  the  Instruc- 
tions -of  tbe  court  to  find  in  favor  of  the 
plaintiff,  yet  we  are  fully  satisfied  that  the 
court  committed  reversible  error  In  not  giv- 
ing the  following  instruction  requested  by 
appellant  to  wit:  "If  yon  find  from  tbe  evi- 
dence In  the  case  tbat  the  defendant  obtaln- 


Digitized  by 


L-oogle 


662 


122  NORTHWESTBBN  BBPORTEB. 


CSwD. 


ed  the  permission  of  plaintiff  to  make  cer- 
tain calls  or  professional  visits  npon  patients 
in  Bradley,  then  plaintiff  cannot  recover  on 
said  contract  for  making  such  professional 
calls."  We  think  It  will  not  be  qnestioned 
but  what  this  requested  Instruction  states  a 
correct  legal  proposition.  Therefore  the  only 
question  Is  whether  the  evidence  entitled  de- 
fendant to  this  instruction.  As  hereinbefore 
noted,  there  was  no  evidence  of  prefesslonal 
calls  except  upon  two  or  three  patients,  and, 
as  to  one  of  these  patients,  there  was  some 
question  as  to  whether  the  call  was  profes- 
sional, and  the  patient  for  whom  defendant 
seemed  to  have  rendered  the  greater  and 
perhaps  the  only  very  material  services  was 
one  Mrs.  Lewis,  upon  whom  defendant  had 
waited  at  the  time  of  her  confinement,  and 
had  visited  several  times  In  connection  there- 
with. It  Is  impossible  for  us  to  determine 
how  much  weight  the  jury  gave  to  the  evi- 
dence relating  to  the  attendance  upon  this 
patient  in  arriving  at  its  conclusion  that  de- 
fendant had  broken  his  agreement,  and  it  Is 
quite  possible  that  with  this  out  of  the  case 
their  verdict  would  have  been  different.  As 
regards  bis  visit  to  this  patient,  defendant 
testified  directly  and  emphatically  that,  be- 
fore attending  upon  this  patient,  he  had  ob- 
tained from  plaintiff  plaintiff's  consent  It 
is  true  that  plaintiff  flatly  contradicted  the 
defendant,  but  certainly  the  defense  was  en- 
titled to  have  this  matter  go  to  the  Jury,  and 
was  entitled  to  an  instruction  such  as  was 
asked  for,  so  that,  if  the  Jury  should  have 
found  plaintiff  consented  to  such  visits,  then 
the  Jury  would  have  excluded  such  visits 
from  its  consideration  in  determining  wheth- 
er there  was  a  breach  of  the  contract 

For  the  reasons  above  stated,  the  Judg- 
ment of  the  trial  irourt  and  order  denying  a 
new  trial  are  reversed. 


CONRAD  SEIPP  BRE3WING  CO.  t.  GREEN 
et  al. 

(Supreme  Court  of  South  Dakota.    Sept  4, 
1909.) 

1.  Intoxicatiito  Liquobs  (I  151")— Offenses 
— Offering  Liquor  fob  Sale. 

Under  Rev.  Pol.  Code,  §  2834,  requiring  a 
license  for  all  who  engage  in  the  sale  of  malt 
liquors  at  wholesale,  section  2833  providing  that 
wholesale  dealers  include  all  who  sell,  or  offer 
for  sale,  liquors  in  five  gallon  qnantities  or  more, 
and  section  28.S8,  making  the  violation  of  sec- 
tion 2.S.'?4  a  misdemeanor,  plaintiff  was  engaged 
in  unlawfully  offering  beer  for  sale  where  its 
resident  soliciting  agent  took  orders  in  this  state 
for  a  car  load  of  beer,  to  be  shipped  in  more 
than  five  gallon  quantities  to  persons  in  various 
towns  in  the  state,  and  received  payment  there- 
for, without  plaintiff  having  taken  out  a  license, 
though  the  written  order  provided  that  all  sales 
were  understood  to  be  consummated  in  another 
state,  and  the  order  was  not  binding  until  ac- 
cepted by  plaintiff  in  such  state. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Dec.  Dig.  {  151.»] 


2.  iNTOXICATINa  LiQUOBS  ({  327*)— CoNTKACia 
FOB  SaLB— LeOAUTY— ViOLATINO   STATUTES. 

A  contract  for  the  sale  of  beer  at  whole- 
sale made  in  violation  of  a  statute,  by  which 
such  sale  within  the  state  without  a  license  was 
a  misdemeanor,  was  void. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  |S  467-473;    Dec  Dig.  | 

3.  Intoxicating  Liquobs  (g  329*)— Contract 
FOB  Sale — Validity— Recovbbt  of  Pbice. 

The  seller  couid  not  recover  npon  a  con- 
tract for  the  price  of  beer  sold  under  a  contract 
which  was  void  because  made  in  violation  of 
a  statute  making  its  sale  within  the  state  with- 
out a  license  a  misdemeanor. 

lEA.  Note. — For  other  cases,  see  Intoxicating 
Lfou^ors,  Cent  Dig.  U  474-481;    Dec.  Dig.  } 

Appeal  from  Circuit  Court,  Spink  County. 

Action  by  the  Conrad  Seipp  Brewing  Com- 
pany against  John  J.  Green  and  another,  co- 
partners, as  Green  &  Hart  and  another. 
FYom  a  Judgment  for  defendants  dismissing 
the  action,  plaintiff  appeals.    Affirmed. 

Bruell  &  Morris,  for  appeUant  Sterling  Se 
Clark,  for  respondents. 

CORSON,  J.  This  Is  an  appeal  by  the 
plaintiff  from  a  Judgment  upon  a  directed 
verdict  in  favor  of  the  defendanta  The  ac- 
tion was  instituted  by  the  plaintiff  to  recov- 
er of  the  defendants  the  price  of  a  car  load  of 
beer  alleged  to  have  been  sold  the  defendants 
by  the  plaintiff  In  the  city  of  Chicago,  in  the 
state  of  Illinois.  It  is  alleged,  among  other 
things.  In  the  answer,  and  as  a  defense  to 
the  action,  that  the  plaintiff  is  a  corporation 
engaged  in  the  manufacture  of  brewed  and 
malt  liquors  and  engaged  In  the  business  of 
selling  and  disposing  of  the  same  at  whole- 
sale; that  in  entering  into  and  making  the 
alleged  contract  set  out  in  the  complaint 
said. plaintiff  was  engaged  In  t)|e  business  of 
selling  such  brewed  and  malt  liquors  at 
wholesale  within  the  state  of  South  Dakota ; 
that  at  the  time  of  the  making  of  such  sale, 
the  said  corporation  had  no  license  for  the 
sale  of  such  liquors  at  wholesale  or  other- 
wise, as  provided  by  section  2S34  of  the  Re- 
vised Political  Code  of  this  state;  and  that 
such  contract  for  the  sale  of  such  liquor  was 
void  and  of  no  effect 

It  was  disclosed  by  the  evidence  at  the 
trial  that  one  James  McCallnm  was  employ- 
ed by  the  plaintiff  company  during  the  sum- 
mer of  1906  as  a  solicitor ;  that  the  order  for 
the  beer  was  received  from  the  defendants  at 
RedQeld  In  this  state.  On  cross-examination 
said  McCallum  testified,  in  substance,  that 
the  order  was  taken  by  htm  in  April  or  May ; 
that  he  had  been  soliciting  orders  in  this  state 
for  about  a  month  for  the  company  prior  to 
the  order  from  the  defendants ;  that  he  was 
working  in  that  neighborhood  as  soliciting 
agent  for  the  plaintiff.  The  order  is,  in  sub- 
stance, as  follows :  "The  Conrad  Seipp  Brew- 
ing Company,  Chicago,  Gentlemen:    Please 


•For  otber  cases  u*  sam*  topic  and  soctton  NUUBSR  la  Dm.  *  Am.  Dies.  UOT  to  <Mi».  *  Roportar  Ind«x«s 


Digitized  by 


Google 


AO-). 


CONRAD  SBIPP  BBEWINQ  CO.  v.  GREEN. 


663 


«hip  subject  to  terms  and  conditions  printed 
^>n  the  back  hereof,  on  my  account  t.  o.  b. 
'Cars  at  Chicago."  Here  follows  a  designa- 
tion of  the  various  quantities  of  beer  to  be 
shipped,  and  certain  other  conditions  not 
necessary  to  be  mentioned,  and  upon  the  back 
of  the  order,  among  other  things,  is  the  fol- 
lowing :  "No  order  or  agreement  for  the  pur- 
chase of  l>eer  will  be  considered  as  binding 
upon  this  Company  until  received  and  accept- 
ed at  the  General  Office  in  Chicago.  All  sales 
of  heer,  however  ordered,  delivered  or  paid 
tor  are  understood  and  agreed  to  be  made 
*nd  fully  consummated  In  Chicago,  Illinois. 
All  shipments  will  be  made  f.  o.  b.,  Chicago, 
and  are  at  the  risk  of  the  purchaser  from  the 
moment  when  delivery  is  made  to  a  Regular 
Common  Carrier."  The  order  purports  to  be 
signed  by  the  defendants,  Joseph  F.  Joyce, 
Green,  and  Hart,  and  by  James  A.  McCallum, 
salesman.  It  Is  further  disclosed  by  the  evi- 
dence that  portions  of  the  beer  received  by 
the  defendants,  amounting  to  some  80  cases, 
was  shipped  to  various  parties  in  lots  ex- 
x;eeding  5  gallons  in  the  surrounding  towns 
by  direction  of  the  said  McCallum,  the  solicit- 
ing salesman  or  agent  who  took  the  order 
from  the  defendants  for  the  car  load  of  beer. 
Four  of  the  receipts  for  the  money  for  the 
beer  shipped  to  the  various  parties  in  the 
«nrronnding  towns  were  signed  by  McCallum 
In  behalf  of  the  plaintiff.  At  the  close  of  all 
the  evidence  the  defendants  made  the  fol- 
lowing motion  for  the  direction  of  a  verdict : 
"At  this  time  the  defendants  move  the  court 
to  direct  a  verdict  for  the  defendants  upon 
all  the  Issues  In  this  case,  for  the  reason  that 
it  appears  from  the  undisputed  testimony 
that  the  contract  sued  upon  was  an  Illegal 
contract,  and  one  made  In  violation  of  the 
wholesale  license  laws  of  this  state,  and  for 
the  further  reason  that  it  appears  from  the 
testimony  of  the  plaintiff's  witnesses  and  the 
admission  of  the  plaintiff  that  that  portion  of 
the  consignment  sued  upon  was  sold  in  whole- 
«ale  quantities  by  the  plaintiff  through  Its 
agent,  and  that  the  plaintiff  knew  that  ship- 
ment of  beer  was  for  the  purpose  of  resell- 
ing it  in  wholesale  quantities  contrary  to  the 
statutes  of  the  state  of  South  Dakota,  and 
that  the  plaintiff  through  Its  lawful  authoriz- 
ed agent  participated  in  such  sale  without 
having  a  wholesale  license  therefor,  and  re- 
^»ived  payment  for  such  sale."  This  motion 
was  granted,  and  by  direction  of  the  court 
the  Jury  returned  a  verdict  In  favor  of  the 
defendants,  and  thereupon  a  Judgment  of 
-dismissal  was  entered  by  the  court,  from 
which  this  appeal  Is  taken. 

It  is  contended  by  the  appellants  that  the 
order  did  not  become  a  contract  until  It  was 
accepted  and  ratified  by  the  plaintiffs  at  Chl- 
-cago.  111.,  and  that  the  contract  being  entered 
into  at  Chicago,  and  consummated  at  that 
place  by  the  delivery  to  the  defendants  of 
■the  beer  f.  o.  b.  Chicago,  the  contract  was  a 
-valid  and  binding  contract,  and  should  be  en- 
iforved  by  the  courts  of  this  state. 


It  is  contended  by  the  defendants  in  sup- 
port of  the  ruling  of  the  court  below  that  Mc- 
Galium,  who  took  the  order  for  the  beer,  was 
the  regular  solicitor  and  salesman  of  the 
plaintiff  in  this  state;  that  the  plaintiff 
through  him  was  engaged  in  selling  beer  at 
wholesale,  and  that  plaintiff  had  no  license 
in  this  state  for  the  sale  of  the  same  at 
wholesale  or  otherwise;  that,  upon  the  re- 
ceipt of  the  beer  by  the  defendants,  the  agent 
McCallum  instructed  and  ordered  the  defend- 
ants to  ship  certain  quantities  thereof.  In  each 
case  more  than  five  gallons,  to  various  retail 
dealers  in  intoxicating  liquors  in  South  Da- 
kota, and  that,  in  pursuance  of  such  instruc- 
tions or  orders,  beer  was  shipped  to  such  re- 
tall  dealers  at  the  towns  of  Mellette,  Ashton, 
Frankfort,  Doland,  Zell,  and  Rockham,  In 
said  state ;  that  the  contract,  therefore,  sued 
upon  in  this  action,  was  an  illegal  contract, 
having  been  made  In  violation  of  the  license 
laws  of  this  state,  and  that  being  an  Illegal 
contract,  no  recovery  thereon  could  be  had 
by  the  plaintiffs. 

It  is  further  contended  by  the  defendants 
that  the  acts  of  McCallum  as  salesman  or 
solicitor  of  the  plaintiff  were  in  legal  effect 
the  acts  of  the  plaintiff.  It  is  provided  by 
section  2834,  Rev.  Pol.  Code,  that  all  parties 
engaging  in  the  sale  of  brewed  and  malt  liq- 
uors at  wholesale  shall  pay  a  license  of  $150. 
Section  2835  provides:  "Wholesale  dealers 
shall  be  held  and  deemed  to  mean  and  In- 
clude all  persons  who  sell  or  offer  for  sale, 
or  deliver  such  liquors  or  beverages  in  quan- 
tities of  five  gallons  or  more  at  any  one  time 
to  any  one  person  or  persons."  And  by  sec- 
tion 2838  it  Is  provided  that  any  person  vio- 
lating the  provisions  of  section  2834  shall  be 
guilty  of  a  misdemeanor.  It  is  clear  from 
the  undisputed  evidence  in  this  case  that  the 
soliciting  salesman  or  agent  of  the  plaintiff 
was  engaged  in  the  business  of  offering  for 
sale  in  the  state  of  South  Dakota  on  behalf 
of  the  plaintiff  malt  or  brewed  liquors  in 
quantities  In  excess  of  five  gallons.  It  is  al- 
so undisputed  that  the  plaintiff  had  paid  no 
license  to  the  treasurer  of  Spink  county,  in 
which  the  town  of  Redfleld  is  situated.  It 
seems  to  be  clearly  established,  therefore, 
that  the  plaintiff  was  engaged  In  unlawfully 
offering  for  sale  in  this  state  the  beverages 
prohibited  to  be  sold  unless  a  license  fee  has 
been  paid  as  required  by  the  statute. 

It  is  contended  by  the  defendants  that, 
where  the  statute  provides  that  the  violation 
thereof  shall  constitute  a  misdemeanor,  it  is 
clear  that  the  Legislature  Intended  to  make 
contracts  In  violation  of  the  statute  Illegal, 
and  that  all  contracts  so  made  in  violation 
of  the  statute  are  void.  The  contention  of 
the  defendants  Is  fully  supported  by  the  au- 
thorities. Bell  V.  Quln,  2  Sand.  (N.  T.)  146; 
Allen  V.  Hawks,  13  Pick.  (Mass.)  79;  Durgin 
V.  Dyer,  68  Me.  143;  Dillon  v.  Allen,  46  Iowa. 
299,  26  Am.  Rep.  145;  1  Eng.  ft  Am.  Ann. 
Cas.  331;  Wldoe  v.  Webb,  20  Ohio  St.  431, 
5  Am.  Rep.  664;  Armstrong  v.  Toler,  11  Wheat. 


Digitized  by  VjOOQ  l€ 


«G4 


122  NORTHWESTERN  REPORTER. 


(&D. 


SS8,  U  L.  Ed.  468;  Ingersoll  t.  Randall,  14 
Minn.  400  (GU.  304) ;  Solomon  t.  Drescbler, 
4  Minn.  278  (Gil.  197).  In  Plnney  t.  First 
Nat  Bank,  68  Kan.  223,  75  Pac.  119,  and 
teported  In  1  Am.  &  Eng.  Ann.  Cas.  831, 
the  learned  Supreme  Court  of  Kansas  held: 
"Where  a  statute  expressly  provides  that  a 
▼lolation  thereof  shall  be  a  misdemeanor,  a 
contract  made  in  direct  violation  of  the  same 
is  Illegal,  and  there  can  be  no  recovery  there- 
on, although  such  statute  does,  not  in  express 
terms  prohibit  the  contract  or  pronounce  tt 
void."  And  in  the  note  to  that  case  the 
learned  author  In  reviewing  this  decision 
says:  "Where,  as  In  the  reported  case,  a 
statute  provides  that  a  violation  thereof  shall 
be  a  misdemeanor,  it  la  reasonably  clear  that 
the  Legislature  intended  to  make  contracts 
-vidlatlng  the  statute  illegal,  and  the  courts 
will  so  hold."  And  the  learned  author  fur- 
ther says:  "The  holding  In  the  reported  case 
is  the  genial  rule  by  the  great  weight  of 
authority."  In  support  of  this  the  learned 
author  dtes  a  large  number  of  English  and 
American  cases,  including  the  Supreme  Court 
of  the  United  States,  and  the  states  of  Ala- 
bama, Arkansas,  Connecticut,  Delaware,  In- 
diana, Iowa,  Massachusetts,  Minnesota,  New 
Tork,  Ohio,  New  Hampshire,  New  Jersey,  and 
Missouri.  This  Is  the  view  taken  by  the  late 
territorial  Supreme  Court  In  Uhllg  v.  Garri- 
son, 2  Dak.  71,  2  N.  W.  253,  and  by  this 
court  in  Johnson  v.  Berry,  20  S.  D.  133,  104 
N.  W.  1114,  1  L.  R.  A.  (N.  S.)  1158;  Ameri- 
can Copying  Co.  v.  Eureka  Bazaar,  20  S.  D. 
520,  108  N.  W.  15,  9  L.  R.  A.  (N.  S.)  117G. 
The  other  questions  presented  in  the  briefs 
of  counsel  in  the  case  at  bar  come  clearly 
within  the  principles  of  the  case  of  Delama- 
ter  V.  State,  205  U.  S.  93,  27  Sup.  Ct  447,  51 
L.  Ed.  724,  10  Am.  &  Eng.  Ann.  Ca&  733, 
and  the  decision  of  this  court  in  the  same 
case  reported  as  State  v.  Delamater  in  20  S. 
D.  28,  104  N.  W.  537,  8  L.  R.  A.  (N.  S.)  774. 
In  view  of  the  fact  that  these  questions  are 
so  fully  discussed  in  that  case  and  in  the 
note  to  the  same  in  10  Am.  &  Eng.  Ann. 
Cases,  supra,  we  do  not  deem  it  necessary  to 
again'  review  the  authorities  bearing  upon 
the  questions  presented. 

Our  conclusion  Is  that  the  court  in  direct- 
ing a  verdict  in  favor  of  the  defendants  was 
clearly  right,  as  the  contract  sought  to  be  en- 
forced was  in  direct  violation  of  the  laws  of 
this  state  relating  to  the  sale  of  Intoxicating 
liquors;  the  plaintiff  through  its  agent  Mc- 
Callum  being  engaged  in  the  business  of  of- 
fering for  sale  In  this  state  malt  and  brewed 
liquors,  for  which  a  license  is  required,  in 
violation  of  the  law  of  this  state.  The  claim 
made  by  the  plaintiff  that  it  was  not  en- 
gaged in  the  business  of  selling  malt  and 
brewed  liquors  in  this  state  is  clearly  dis- 
proved by  the  fact  that  it  had  an  agent  here 
engnged  In  the  business  of  offering  for  sale, 
and  receiving  payment  for  malt  and  brewed 


liquors  sold  within  the  state  by  the  order  of 
the  plaintiff  through  its  agent. 

The  judgment  of  the  circuit  court  and  or- 
der denying  a  new  trial  are  affirmed. 

WHITING,  J.,  took  no  part  in  the  decision. 


DRING  V.  ST.  LAWRENCE  TP. 

(Supreme  Court  of  South  Dakota.    Sept.  4, 
1909.) 

1.  Appeai.  ano  Ebbob  (S  0*)— Objxcttokb  Bb- 
LOW — Motion  fob  New  tbial— Nkcessitt. 

An  appeal  lies  from  a  judj^ment,  though 
there  has  been  no  motion  for  new  trial. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  }  29;  Dec  Dig.  i  9.*] 

2.  Appkai,  and  Ebbob  (J  544*)— Biu,  of  Ex- 
ceptions—Necessitt. 

A  bin  of  exceptions  is  not  essential  to  an 
appeal  from  a  judgment 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  H  2412-2420;  Dec.  Dig.  § 
544.  •] 

3.  Appeai,  and  Ebbob  (g  374*)— Appkai.  Bond 
—Appeal  by  Citt— Necessity. 

Under  the  direct  proviBions  of  Rev.  Code 
Civ.  Proc.  §  445,  no  appeal  bond  la  reauired  of 
any  incorporated  town  or  city  when  It  is  a  par^ 
ty  directly  interested  in  the  appeal. 

[BM.  Note. — For  other  cases,  pee  Appeal  and 
Etror,  Cent  Dig.  §  2010;   Dec.  Dig.  {  574.*] 

4.  Appeal  and  Erbob  (|  616*)—Record8— At- 
testing— Necessitt. 

An  instrument  signed  by  the  trial  court 
suppre!!8ing  the  bill  of  exceptions  in  the  case 
was  ineffectual  for  any  purpose  where  it  was 
not  attested. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  U  2714-2718;  Dec.  Dig.  { 
61C.*] 

5.  Tbial  (I  178*)- DiBECTiNG  Vebdict— Mo- 
tion—RenewaIi— Necessitt. 

The  direction  of  a  verdict  after  receiving  ad- 
ditional evidence  without  renewing  the  motion 
for  a  direction  made  before  such  evidence  was 
received  was  at  least  irregular. 

[Ed.  Note.— For  other  cases,  see  Trial,  Dec. 
Dig.  i  178.*1 

6.  Appeal  and  Ebbob  (|  1170*)- Rkvebs.vl— 
Technical  Ebbob  —  Diioectino  Vebdict 
without  Renewing  Motion. 

In  an  action  by  the  bolder  of  township 
bonds  to  recover  the  amount  of  the  debt  repre- 
sented thereby,  In  which  defendant  claimed  that 
the  bonds  were  void  as  making  the  township 
debt  exceed  the  constitutional  limitation,  the  ir- 
regularity of  directing  a  verdict  for  plaintiff, 
after  receiving  additional  evidence  as  to  the 
amount  in  the  township  treasury  when  the  bonds 
were  issued,  without  renewal  of  the  motion  to 
direct  which  was  made  before  such  evidpnce 
was  received,  may  be  disreRarded  as  not  affect- 
ing any  substantial  right,  in  view  of  Rev.  Code 
Civ.  Proc.  §  153,  forbidding  reversals  for  errors 
not   affecting   substantial    rights. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  IS  4540-4545;  Dec.  Dig.  f 
1170.*] 

7.  Appeal  and  Errob  (J  212»)— Objections- 
Necessity- Waives. 

Under  Rev.  Civ.  Code,  g  2415,  ptoviding 
that  acquiescence  in  error  takes  away  the  right 
of  objecting,  defendant  cannot  object  to  the  di- 
rection of  a  verdict  for  plaintiff  after  the  intr»- 
duction  of  additional  evidence,  without  renew- 


•ror  other  cmm  im  Mm*  topic  and  McUon  NUMBER  Ic  Dec.  Is  Am.  Diss.  UOT  to  data,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


&D.) 


DBING  V.  ST.  LAWRENCE  TP. 


665 


ing  the  motion  therefor,  where  be  did  not  ob- 
ject at  the  time. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  I  1302 ;   Dec.  Dig.  {  212.»] 
6.  Towws    (S    52»)— Public    Improveuent8— 

FiscAi.  Manaoemeni  —  Right   to   Ihcub 

DSBTS 

Law's  1891,  p.  196,  c.  80,  entitled  "An  act 
anthorising  civil  townships  to  sink  artesiian 
wells  for  public  purposes  and  to  issue  bonds 
therefor,"  authorized  the  construction  of  such 
wells  at  public  expense,  and  the  issuance  of 
bonds  for  that  purpose  by  a  township. 

[EJd.  Note.— For  other  cases,  see  Towns,  Dec. 
Dig.  S  62.»] 

9.  Towns  (§  46*)— Fiscal  Manaoemewt— In- 
debtedness—CoNSTirnTioNAL  Limitations. 

Under  Const,  art.  13,  S  4,  prohibiting  the 
debt  of  any  town  or  other  subdivision  from  ex- 
ceeding 6  per  centum  of  the  assessed  value  of 
the  taxable  property  therein,  if  the  existing  in- 
debtedness of  a  township  equaled  or  exceeded 
the  constitntional  limitation  when  township 
bonds  were  issued  to  construct  wells,  the  town- 
ship or  its  officers  had  no  power  to  incur  any 
further  indebtedness,  and  the  bonds  would  be 
void. 

[Ed.  Note.— For  other  cases,  see  Towns,  Cent 
Dig.  §i  81-84;  Dec.  Dig.  j  40.»] 

10.  Towns  (i  62*)  —  Secubities  —  Bonds  — 
Rights  of  Boldebs  of  Invalid  Secxtbi- 
ties. 

If  the  existing  indebtedness  of  defendant 
township  equaled  or  exceeded  the  limitation  im- 
posed by  Const  art  13,  t  4,  providing  the  debt 
of  any  town,  etc.,  shall  never  exceed  5  per 
centum  of  tbe  assessed  value  of  its  property, 
when  artesian  well  bonds  were  issued  by  the 
township,  a  holder  could  not  recover  any  part 
of  the  mdebtedness  represented  by  such  bonds, 
there  being  a  total  want  of  power  to  incur  the 
indebtedness,  but,  if  defendant  was  not  then  in- 
debted to  the  extent  of  the  limitation,  the  holder 
could  recover,  as  for  monejr  had  and  received,  up 
to  the  amount  of  such  limitation ;  tbe  bonds  be- 
ing merely  the  evidence  of  an  indebtedness  which 
may  subsist,  though  they  are  lost  or  destroyed. 
[Ed.  Note.— For  other  cases,  see  Towns,  Dec. 
Dig.  S  52.»] 

11.  TBIAL    (§   143*)— DiBECTION    OF   Vebdict— 

Conflicting  Evidence.   , 

Where,  in  an  action  on  bonds  issued  by  a 
township  to  construct  artesian  wells,  the  evi- 
dence was  conflicting  as  to  whether  the  town- 
ship indebtedness,  then  exceeded  tbe  constitu- 
tional limitation,  it  was  error  to  direct  a  ver- 
dict for  either  party. 

[Ed.  Note.— For  other  cases,  See  Trial,  Cent 
Dig.  Si  342,  343;    Dec.  Dig.  i  I43.*] 

Appeal  from  Circuit  Court,  Hand  County. 

Action  by  Katharine  Drlng  against  the 
Township  of  St.  Lawrence,  a  municipal  cor- 
poration. From  a  Judgment  for  plaintiff  on 
a  directed  verdict,  and  from  an  order  denying 
a  new  trial,  defendant  appeals.  Reversed, 
aDd.  new  trial  ordered. 

A.  K.  Gardner  and  John  Pusey,  for  appel- 
lant.   J.  H.  Cole,  for  respondent 

HANET,  P.  J.  It  is  disclosed  by  the  plead- 
ings and  evidence  that  in  April,  1891,  the 
electors  of  the  defendant  township  attempt- 
ed to  antborize  the  Issuing  of  bonds  for  the 
purpose  of  constructing  artesian  wells  agree- 
ably to  the  provisions  of  chapter  80,  p.  196, 
Laws  1891;    that  on  January  7,  1893,  town- 


ship bonds  to  the  amount  of  $5,000  were 
delivered  to  Thomas  Dring;  that  nothing 
has  been  paid  on  account  of  such  bonds  ex- 
cept annual  Interest  from  1893  to  1898,  in- 
clusive, and  |490  paid  to  the  plaintiff  in  Feb- 
ruary, 1906 ;  that  plaintiff  is  the  owner  and 
holder  of  such  bonds;  that  the  money  re- 
ceived from  the  sale  of  the  bonds  was  used 
by  the  defendant  for  the  purpose  of  construct- 
ing artesian  wells;  and  that  In  another  ac- 
tion between  the  parties  to  this  suit  the  bonds 
were  adjudged  to  be  invalid,  the  ground  of 
their  invalidity  not  appearing.  On  the  trial, 
both  sides  having  rested,  the  plaintiff  moved 
for  a  directed  verdict  for  |7,545,  the  amount 
claimed  in  her  complaint  Defendant  moved 
for  a  directed  verdict  In  Its  favor  upon  all 
the  issues.  Thereupon  the  plaintiff  applied  for 
and  was  granted  leave  to  Introduce  addition- 
al testimony  touching  the  amount  of  cash  in 
the  township  treasury  when  the  bonds  were 
delivered,  as  shown  by  the  treasurer's  rec- 
ords, and  the  court,  without  any  renewal  of 
either  motion,  directed  a  verdict  in  favor  of 
the  plaintiff  for  $8,959.61.  No  objection  was 
Interposed  by  defendant  to  the  reopening  of 
the  case  to  the  additional  evidence,  or  to  the 
direction  of  the  verdict  on  the  ground  of 
plaintiff's  failure  to  renew  her  motion.  Judg- 
ment having  been  entered  upon  the  verdict, 
defendant  appealed  therefrom  and  from  the 
order  denying  its  application  for  a  new  trial. 

Respondent  moved  to  dismiss  the  appeal 
on  the  following  grounds:  (1)  That  the  at- 
torneys who  perfected  the  same  were  not 
authorized  to  appear  for  the  defendant;  (2) 
that  "tbe  flies  and  papers  on  the  purported 
motion  for  a  new  trial  were  served  and  filed 
after  the  time  allowed  by  law  had  expired 
and  without  any  order  of  court  or  good 
cause  shown" ;  (3)  that  no  proper  bill  of  ex- 
ceptions was  ever  settled  or  allowed;  (4) 
that  the  lower  court  made  no  order  fixing 
tbe  amount  of  an  undertaking  on  appeal ; 
and  (5)  that  no  undertaking  on  appeal  has 
been  served  or  filed.  As  we  understand  tbe 
record,  there  is  no  foundation  in  fact  to  sup- 
port the  first  ground  of  the  motion.  The 
second  ground  Is  untenable  because  an  appeal 
lies  from  a  Judgment  In  absence  of  any  ap- 
plication for  a  new  trial.  The  same  Is  true 
of  the  third  ground,  a  bill  of  exceptions  not 
being  essential  to  an  appeal  from  a  Judg- 
ment And  the  fourth  and  fifth  grounds  are 
without  merit  because  no  undertaking  was 
required.  Rev.  Code  Civ.  Proc.  S  445.  So 
the  motion  to  dismiss  cannot  be  sustained. 

Respondent  Insists  there  are  no  reviewable 
assignments  of  error  because  what  purxmrts 
to  be  a  bill  of  exceptions,  not  having  been 
properly  settled,  was  suppressed  by  the  cir- 
cuit court  Among  the  papers  received  from 
the  circuit  clerk  is  an  instrument  signed  by 
the  learned  circuit  Judge  expressly  suppress- 
ing the  bin  of  exceptions.  Whether  or  not  such 
instrument  was  inadvertently  signed  need  not 


•far  other  casn  ne  same  tople  and  tectiOB  NUMBER  in  Dee.  Is  Am.  Diss.  1907  to  date.  It  Reporter  Indezai 


Digitized  by  VjOOQ  l€ 


122  NORTHWESTERN  REPORTER. 


IB.D1 


b*  considered,  for  the  reason  that  it  has  not 
been  attested,  and  Is  therefore  Ineffectual 
for  any  purpose.  Stephens  y.  Faus,  20  9.  D. 
S67,  106  N.  W.  66.  The  contention  that  the 
exceptions  were  not  settled  within  the  time 
allowed  by  law,  or  order  of  the  trial  court 
is  not  sustained  by  the  record.  Though  it 
certainly  was  irregular  to  direct  a  verdict 
after  receiving  additional  evidence  without 
the  renewal  of  either  party's  motion,  such  Ir- 
r^:ularity,  under  the  circumstances  of  this 
case,  should  be. disregarded  as  not  affecting 
any  substantial  right.  Rev.  Code  Civ.  Proc. 
{  153.  Moreover,  "acquiescence  In  error  takes 
aw^ay  the  right  of  objecting  to  it"  Rev.  Civ. 
Code,  {  2415.  Undoubtedly  this  slight  de- 
fect in  procedure  would  have  been  cured  had 
attention  been  called  to  it. 

The  contention  that  the  defendant  corpo- 
ration was  not  authorized  by  the  statute  to 
incur  debts  for  the  purpose  of  constructing 
artesian  wells  clearly  is  untenable.  Chapter 
80,  p.  196,  Laws  1891,  was  entitled  "An  act 
authorizing  civil  townships  to  sink  artesian 
wells  for  public  purposes  and  to  issue  bonds 
therefor."  The  act  itself  cannot  be  other- 
wise construed  than  as  authorizing  the  con- 
struction of  artesian  wells  at  public  expense, 
and  as  authorizing  the  Issuing  of  bonds  for 
the  purpose  of  constructing  the  same.  There 
was  not,  therefore,  so  far  as  the  statute  is 
concerned,  a  total  want  of  power  to  incur 
obligations  arising  from  the  construction  of 
artesian  wells  for  public  purposes.  Section 
4,  article  13,  of  the  state  Constitution,  is  as 
follows:  "The  debt  of  any  county,  dty,  town, 
school  district  or  other  subdivision,  shall  nev- 
er exceed  five  per  centum  upon  the  assessed 
value  of  the  taxable  property  therein.  In 
estimating  the  amount  of  indebtedness  which 
a  municipality  or  subdivision  may  incur,  the 
amount  of  Indebtedness  contracted  prior  to 
the  adoption  of  this  Constitution  shall  be  In- 
cluded." In  a  case  strikingly  analogous  to 
the  one  at  bar  under  a  constitutional  limita- 
tion in  effect  the  same  as  the  one  here  involv- 
ed, the  Supreme  Court  of  the  United  States, 
speaking  by  Mr.  Justice  Miller,  used  this 
language:  "The  language  of  the  Constitution 
is  that  no  city,  etc.,  'shall  be  allowed  to  be- 
come indebted  in  any  manner  or  for  any  pur- 
pose to  an  amount,  including  existing  indebt- 
edness, in  the  aggregate  exceeding  five  per 
centum  op  the  value  of  its  taxable  property.' 
It  shall  not  become  Indebted.  Shall  not  incur 
any  pecuniary  liability.  It  shall  not  do  this 
In  any  manner.  Neither  by  bonds,  nor  notes, 
nor  by  express  or  implied  promises.  Nor 
shall  It  be  done  for  any  purpose.  No  matter 
how  urgent,  how  useful,  how  unanimous  the 
wish.  There  stands  the.  existing  Indebtedness 
to  a  given  amount  In  relation  to  the  sources 


of  payment  aa  an  impassable  obstacle  to  the 
creation  of  any  further  debt  in  any  maimer, 
or  for  any  purpose  whatever.  If  this  pro- 
hibition Is  worth  anything,  it  is  as  effectual 
against  the  Implied  as  the  express  promise, 
and  is  as  binding  In  a  court  of  chancery  as  a 
court  of  law."  Utchfleld  v.  Ballon,  114  U.  a 
190,  5  Sup.  Ct  820,  29  L.  Ed.  132.  If,  when 
these  bonds  were  delivered,  the  existing  in- 
debtedness of  the  defendant  township  equaled 
or  exceeded  the  constitutional  limitation,  the 
township  was  without  power  to  Incur  any 
indebtedness  whatever.  Its  officers  were 
without  authority  to  bind  the  corporation  by 
any  promise,  express  or  Implied,  and  the 
plaintiff  ought  not  to  recover.  Any  other 
conclusion  would  render  the  limitation  wholly 
nugatory.  Under  such  circumstances  there 
would  be  a  total  want  of  power,  not  an  ir- 
regular exercise  of  power  as  in  a  case  where 
the  corporation  is  authorized  to  incur  an  in- 
debtedness, but  does  not  comply  with  the  law 
as  to  the  form  of  its  obligations.  Livingston 
V.  School  District,  9  S.  D.  345,  69  N.  W.  15; 
Id.,  11  S.  D.  150,  76  N.  W.  301.  Though  no 
valid  municipal  obligation  may  exist  in  vio- 
lation of  the  constitutional  limitation,  bonds 
are  but  the  evidence  of  an  indebtedness,  and 
may  be  defective,  lost,  or  destroyed  without 
impairment  of  the  debt  Itself.  Therefore,  If 
defendant  was  not,  at  the  time,  indebted  to 
the  extent  of  the  limitation,  plaintiff  should 
recover  as  for  money  had  and  received,  though 
she  failed  to  recover  in  a  suit  on  the  bonds. 
This,  we  understand,  was  the  view  taken  by 
the  learned  circuit  court  So  the  important 
question  on  this  appeal  is  whether  the  evi- 
dence Justified  the  verdict  The  money  sought 
to  be  recovered  was  received  by  the  defendant 
January  7,  1893.  Five  per  centum  upon  the 
assessed  value  of  the  taxable  property  with- 
in the  township,  as  shown  by  the  last  pre- 
ceding assessment,  was  $6,475.  It  Is  conced- 
ed there  was  a  bonded  Indebtedness  of  $3,- 
000,  leaving  the  limit  of  new  Indebtedness  at 
the  time  stated  $3,475,  subject  to  further  re- 
duction by  other  existing  indebtedness  less 
whatever  cash  may  have  been  in  the  treas- 
ury. Concerning  the  other  indebtedness,  the 
record  is  indefinite  and  uncertain,  where 
there  should  be  no  room  for  controversy,  and 
as  to  the  amount  of  cash  on  hand  there  Is 
a  direct  conflict,  there  being  testimony  tend- 
ing to  prove  an  overdraft  on  January  7, 
1893,  while  plaintiff's  attorney  testified  that 
the  treasurer's  records  disclosed  an  "appar- 
ent" balance  of  $1,920.29.  Clearly  the  evi- 
dence was  not  such  as  Justified  the  verdict 
returned  or  the  direction  of  a  verdict  in  fa- 
vor of  either  party. 

The  Judgment  of  the  circuit  court  is  re- 
versed, and  a  new  trial  ordered. 


Digitized  by 


Google 


&Dj 


STATE  ▼.  PSTEBSON. 


667 


STATE  ▼.  PETERSON. 

{Sapreme  Court  of  Soath  Dakota.    Sept  4, 
1909.) 

1.  CannRAi.  Law  ({  883*)— Judoiibnt. 

The  judgment  must  be  based  on  a  sufficient 
indictment  or  information,  or,  if  accused  is 
found  guilty  of  a  less  offense,  the  jury  must 
'find  its  essential  elements. 

[£^  Note. — For  otlier  cases,  see  Criminal 
Law,  Cent.  Dig.  St  2104^2106;  Dec.  Dig.  S 
«83.*] 

2.  AssAtTLT  AND  Battert  (§  97*)— Vebdict. 

Pen.  Code,  §  314,  makes  it  essential  to  an 
assault  with  intent  to  do  bodily  harm  that  it 
be  made  with  a  dangerous  weapon,  or  that  ac- 
cused shot  at,  or  attempted  to  shoot,  another 
with  intent  to  injure.  Under  an  indictment  for 
assault  with  intent  to  kill,  a  verdict  was  return- 
«d  of  assault  with  intent  to  do  great  bodily 
harm.  Held,  that  the  verdict  was,  in  effect,  for 
a  simple  assault  only,  as  it  did  not  find  the  es- 
sential elements  of  assault  with  intent  to  do 
bodily  harm. 

[E^.  Note.— For  other  cases,  see  Assault  and 
Battery,  Cent.  Dig.  f  151 ;   Dec  Dig.  i  97.*] 

Appeal  from  Circuit  Court,  Stanley  County. 

Peter  H.  Peterson,  under  an  information 
for  assault  with  Intent  to  kill,  was  found 
guilty  of  assault  with  Intent  to  do  great 
tx>dlly  barm,  and  he  appeals.    Modified. 

Oaffey  ft  Stephens,  for  appellant  S.  W. 
Clark,  Atty.  Gen.,  for  the  State. 

CORSON,  J.  Upon  an  Information  duly 
filed  by  the  state's  attorney  of  Stanley  coun- 
ty the  defendant  was  tried  upon  the  charge 
of  an  assault  with  intent  to  kill  one  George 
Crowe,  and  the  following  verdict  returned 
by  the  Jury:  "We,  the  jury,  find  the  defend- 
ant guilty  of  assault  with  Intent  to  do  great 
bodily  harm  "—which  verdict  was  by  the 
court  ordered  entered.  After  verdict,  and  be- 
fore Judgment,  the  defendant  moved  the 
court  for  an  arrest  of  judgment  pn  several 
grounds;  the  only  one  bearing  upon  this 
question  being  as  follows:  "That  the  verdict 
returned  by  the  Jury  In  the  above-entitled 
cause  is  insufBcient  in  form  and  substance, 
and  is  not  suflScient  upon  which  to  base  a 
Judgment  of  the  court,  that  said  verdict  is 
nether  general  or  special,  and  that  it  does 
not  find  the  defendant  guilty  in  terms  of  any 
felony  under  the  statutes  of  this  state,  and 
that  the  same  is  neither  definite  nor  intelli- 
gible." The  court  overruled  this  motion  In 
arrest  of  judgment,  and  thereupon  entered  a 
judgment  that:  "The  court  does  adjudge, 
and  tbe  sentence  is  that  yon,  Peter  H.  Peter- 
«on,  be  imprisoned  in  the  penitentiary  of  this 
state  In  tbe  city  of  Sioux  Falls,  state  of 
South  Dakota,  for  tbe  term  of  10  months, 
commencing  at  12  o'clock  m.,  27th  day  of 
July,  A.  D.  1908,  and  that  you  stand  commit- 
ted until  this  sentence  is  complied  with." 

It  Is  contended  by  the  appellant  that  the 
verdict  as  returned  by  the  jury  was,  in  effect, 
-a  verdict  for  a  simple  assault,  and  that  under 
such  a  Terdict  tbe  defendant  could  only  be 


punished  as  for  a  misdemeanor,  and  that  tbe 
maximum  Judgment  and  sentence  which 
could  have  been  imposed  by  tbe  court  was  a 
fine  of  $100,  or  imprisonment  in  the  county 
Jail  for  not  more  than  30  days,  or. both,  as 
provided  by  section  313  of  the  Penal  Code. 
W«  are  of  the  opinion  that  the  defendant  is 
right  in  his  contention.  The  verdict  of  the 
jury,  in  effect,  acquitted  the  defendant  of  tbe 
crime  of  an  assault  with  Intent  to  kill,  but 
found  him  guilty  of  a  less  offense  included 
within  the  charge  as  made  in  tbe  informa- 
tion. Under  tbe  Information  the  defendant 
might  have  been  convicted  of  the  crime  of  an 
assault  with  intent  to  do  bodily  injury,  or 
of  the  crime  of  assault  and  battery.  But  as 
the  jury  acquitted  the  defendant  of  the 
charge  made  in  the  information  of  an  assault 
with  intent  to  kill,  and  In  order  to  find  him 
guilty  of  an  assault  with  intent  to  commit 
bodily  injury,  it  was  necessary  for  them  to 
find  the  essential  elements  that  constitute 
this  offense.  The  judgment  in  a  criminal 
case  must  be  base^  upon  a  suflScient  Indict- 
ment or  Information,  or  in  case  the  jury  find 
the  defendant  guilty  of  a  less  offense,  the  es- 
sential elements  constituting  the  same  must 
be  found  by  the  jury;  otherwise  the  judg- 
ment has  no  basis  upon  which  to  stand. 

Section  314  of  the  Penal  Code  provides: 
"Every  person  who,  with  Intent  to  do  bodily 
barm,  and  without  Justifiable  or  excusable 
cause,  commits  any  assault  upon  tbe  person 
of  another  with  any  sharp  or  dangerous 
weapon,  or  who,  without  such  cause,  shoots 
or  attempts  to  shoot  at  another,  with  any 
kind  of  firearm,  or  air  gun  or  other  means 
whatever,  with  intent  to  Injure  any  person, 
although  without  Intent  to  kill  such  person 
or  to  commit  any  felony,  is  punishable  by 
imprisonment  in  the  state  prison  not  exceed- 
ing five  years,  or  by  Imprisonment  In  a  coun- 
ty jail  not  exceeding  one  year."  It  will  be 
observed  by  that  section,  in  order  to  consti- 
tute the  crime  of  an  assault  with  intent  to  do 
bodily  harm.  It  must  be  alleged  In  the  indict- 
ment or  Information,  or  found  by  the  jury, 
that  the  assault  upon  the  person  was  made 
with  a  sharp  or  dangerous  weapon,  or  that 
the  defendant  shot  at,  or  attempted  to  shoot 
at,  the  person  with  some  kind  of  firearm, 
with  Intent  to  injure  such  person.  It  will  be 
observed  that  in  the  verdict  returned  by  the 
jury  in  this  case  neither  of  these  essential 
elements  constituting  tbe  offense  of  an  as- 
sault with  intent  to  do  bodily  harm  is  found 
by  the  Jury,  and  that  the  offense  as  found 
is  that  of  a  simple  assault  It  was  not  com- 
petent for  the  court  to  indulge  in  any  pre- 
sumptions as  against  the  defendant,  or  to 
supply  the  omissions  in  the  verdict  of  the 
Jury,  of  the  essential  elements  of  the  crime 
of  an  assault  with  Intent  to  commit  bodily 
Injury,  and  hence  Its  Judgment  is  not  based 
either  upon  the  information  or  tbe  verdict  of 
the  Jury,  and  therefore  cannot  be  sustained. 


-•Far  other  eases  ■••  same  tople  and  section  NUIiBBR  In  Dec.  A  Am.  Digs.  HOT  to  dat*k  *  Reporter  Indexes 


Digitized  by 


Google 


668 


122  NORTHWESTERN  RBPOSTEB. 


(Mlim 


The  case  of  Territory  t.  ConraO,  1  Dak. 
363,  46  N.  W.  606,  decided  by  the  territorial 
Supreme  CSonrt,  In  which  that  court  held, 
"A  verdict  on  an  Indictment  for  'an  assault 
upon  and  for  shooting  one  F.  McM.  with  a 
pistol,  commonly  known  as  a  revolver,  load- 
ed with  gunpowder  and  leaden  bullets,  with 
Intent  to  kill,'  finding  the  defendant  guilty 
of  assault  with  intent  to  do  bodily  harm, 
and  without  Justifiable  or  excusable  cause,' 
is  a  conviction  for  a  misdemeanor,  and  will 
not  sustain  a  judgment  as  for  a  felony,"  la 
directly  In  point  In  that  case  the  court, 
speaking  by  Chief  Justice  Shannon,  says: 
"It  would  be  supremely  dangerous  to  extend 
the  express  language  of  a  verdict  so  as,  by 
Implication,  to  supply  a  supposed  omission, 
which  would  make  tb&t  a  felony,  which  is 
explicitly  declared  a  misdemeanor.  In  a  case 
like  this  every  principle  of  propriety  and 
safety  tends  to  holding  to  the  rule  of  a  strict 
construction."  And  the  court  in  that  case 
modified  the  Judgment,  and  directed  the  court 
below  to  enter  a  Judgment  as  for  a  misde- 
meanor. It  will  be  observed  that  in  that  case 
the  verdict  of  the  Jury  was  as  follows:  "We, 
the  Jury,  find  the  defendant  guilty  of  assault 
with  intent  to  do  bodily  harm,  without  Justi- 
fiable or  excusable  cause" — which  is  practi- 
cally the  same  as  the  verdict  returned  in  tlie 
case  at  bar. 

The  Supreme  Court  of  North  Dakota  adopt- 
ed a  similar  view  in  the  case  of  State  v. 
Johnson,  3  N.  D.  150,  64  N.  W.  647.  In  that 
case  the  court  held  that:  "Where  the  accus- 
ed was  charged  with  an  assault  and  battery 
when  armed  with  a  deadly  weapon,  'with  in- 
tent to  kill,'  and  the  verdict  was  for  'assault 
and  battery  with  intent  to  do  bodily  harm,  as 
charged  in  the  information,'  •  •  •  the 
verdict  will  warrant  a  conviction  for  assault 
and  battery  only.  The  weapon  with  which  an 
assault  is  committed  is  an  essential  feature 
of  the  crime.  •  •  •  The  Jury  failed  to 
find  the  weapon,  and  the  omission  is  fatal 
to  a  conviction  for  felony."  It  will  be  observ- 
ed that  in  that  case  the  Jury  found  the  de- 
fendant guilty'  of  assault  and  battery  with 
Intent  to  do  bodily  harm  "as  charged  in  the 
information,"  but  that  court  held  that  the 
words  "as  charged  In  the  information"  were 
ambiguous,  and  could  not  be  supplied  for 
the  purpose  of  showing  that  the  assault  and 
battery  was  committed  with  a  dangerous 
weapon,  in  view  of  the  fact  that  the  effect 
of  the  verdict  was  to  acquit  the  accused  of 
the  offense  charged  in  the  Information.  In 
view  of  the  fact  that  the  crime  of  an  assault 
with  Intent  to  kill  and  the  crime  of  an  as- 
sault with  intent  to  commit  bodily  Inju^  are 
defined  in  our  Code  the  same  as  they  were 
defined  in  the  statute  at  the  time  of  the  deci- 
sion of  the  case  of  Territory  v.  Conrad,  su- 
pra, and  as  in  the  opinion  of  the  territorial 
Supreme  Court  the  questions  presented  in 


this  case  are  so  fully  and  exhanstively  dis- 
cussed by  Chief  Justice  Shannon,  and  the 
views  therein  expressed  meet  with  our  ap- 
proval, we  do  not  deem  it  necessary  to  fur- 
ther discuss  the  question  in  this  opinion. 
The  offense  of  an  assault  was  charged  and 
found  by  the  Jury,  and  the  verdict  warrants 
a  conviction  for  that  offense  only. 

The  Judgment  of  the  circuit  court  is  there- 
fore modified,  and  that  court  Is  directed  to 
sentence  the  plaintiff  in  error  for  the  crime 
of  an  assault  only. 

McCOT,  X,  taking  no  part  in  this  decision. 


KOREIS  v.  MINNEAPOLIS  &  ST.  Iju  R.  CO. 

(Supreme  Conrt  of  Minnesota.    July  28,  1909.) 

Plkadiito  (I  406*)  —  Master  and  Servant 
(«  217,  265,  288,  289*)— Appeal  and  Er- 
ror rt  215*)— Injuries  to  Servant— Com- 
plaint—Sufficiency— AsstritPTioN  of  Risk 
— Contbibdtobt  Niouoencb— Neolioence 
—Instructions. 

PlalntiCF,  defendant's  eni^neer,  when  half 
way  between  two  stopping  places,  found  that 
fastenings  of  the  eccentric  straps  on  the  engine 
were  defective  and  the  two  halves  of  those  straps 
partially  palled  apart.  Having  made  imperfpct 
repairs,  be  proceeded  to  the  next  station  for 
which  he  had  orders,  a  distance  of  19  miles. 
When  the  engine  was  within  about  half  a  mile 
of  that  station,  the  left  eccentric  Strap  broke, 
threw  back  the  lever,  and  broke  his  arm.  It  la 
held: 

(1)  The  complaint  was  valid  as  against  ob- 
jections made  after  the  case  had  been  called 
for  trial  and  plaintiff  had  introduced  some 
evidence. 

(2)  A  railroad  engineer  owes  a  duty  to  the 
pnblic,  as  well  as  to  his  employers,  and  is  jus- 
tified in  taking  much  greater  risks  than  em- 
ployes in  other  occupations,  'without  necesssrily 
forfeiting  the  right  of  action  for  injuries  re- 
sulting from  his  master's  negligence  of  which 
he  has  knowledge.  While  the  emergency  of 
railroad  traffic  will  not  excuse  the  servant  for 
running  the  risk  of  almost  certain  Injury,  It  is 
only  In  extreme  cases  that  he  will  not  be  war- 
ranted In  operating  a  temporarily  repaired  en- 
gine until  be  reaches  his  next  station.  In  view 
of  the  circumstances  of  this  case  In  general, 
and  of  the  particular  fact  that  the  engine  in 
this  case  ran  18^  out  of  a  possible  19  miles 
with  entire  safety,  it  was  a  question  of  fact  for 
the  juiy  whether  plaintiff  assumed  the  risk. 

(3)  Plaintiff  was  not  guilty  of  contributory 
negligence  as  a  matter  of  law. 

(4)  Defendant's  negligence  was  a  question  of 
fact  for  the  jury,  because  of  testimony  that  the 
defective  condition  of  the  eccentric  strap  was 
previously  reported  to  defendant,  and  that  the 
bolts  by  which  the  eccentric  straps  were  at- 
tached were  old  and  thread-worn,  and  because 
of  the  occurrence  of  the  accident  within  a  short 
distance  of  the  place  of  inspection.  Sheedy  v. 
Railway  Co.,  55  Minn.  857,  57  N.  W.  60,  fol- 
lowed and  applied. 

(5)  It  was  tor  the  jury  to  determine  whether 
or  not  defendant's  negligence  was  the  proximate 
cause  of  the  injury. 

(6)  That  the  court  charged  defendant's  duty 
to  have  been  to  furnish  plaintiff  Instrumen- 
talities safe  for  use  Is  held  not  to  have  been 
reversible  error,  because  the  court's  attention 
had  not  been  called  to  the  Inaccuracy  in  language 
before  the  jury  retired.    Waligora  t.  Foundry 


•For  other  eases  see  samo  toplo  and  Mctlon  NUMBER  ia  Dee.  *  Am.  Digs.  HOT  to  dat*.  *  Roportar  Indazw 


Digitized  by  VjOOQ  l€ 


Minn.) 


KORBIS  T.  MINNEAPOLIS  &  ST.  L.  R.  OO. 


669 


Co.  (Minn.)  119  N.  W.  S85>  followed  and  ap- 
plied. 

[Hid.  Note.— For  other  cases,  see  Pleading, 
Dec  Dig.  I  406:*  Master  and  Servant,  Cent 
Dig.  M  iS83,  584  881,  1068-1132;  Dec  Dig. 
U  217.  26^  288,  2^;*  Appeal  and  Error, 
Cent.  Dig.  18  1300-1314 :  Dec  Dig.  |  215  ;• 
Trial,  Cent  Dig.  H  683^^.] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Waseca  Coun- 
ty;   Thomas  S.  Buckham,  Judge. 

Action  by  Frank  A.  Koreis  against  the 
Minneapolis  &  St.  Louis  Railroad  Company. 
Verdict  for  plaintiff.  From  an  order  deny- 
ing its  motion  for  a  judgment  notwithstand- 
ing the  rerdlct  or  for  a  new  trial,  defend- 
ant appeals.    Affirmed. 

John  I.  Dlile  and  Peter  McOovem  (Geo. 
W.  Seevers,  of  counsel),  for  appellant  Al- 
bert B.  Clark  and  D.  F.  Carmichlel,  for  re- 
spondent 

JAGOARD,  7.  Plaintiff  and  respondent, 
as  engineer  ia  the  employ  of  defendant  and 
appellant  rhllroad  company,  when  half  way 
between  two  stopping  points  found  that  the 
keys  and  nuts  for  the  bolts  which  fastened 
the  left  eccentric  strap  to  the  eccentric  were 
gone  and  that  the  two  halves  of  those  straps 
haQ  pulled  partially  apart  He  repaired  the 
engine  by  restoring  the  left  eccentric  strap 
to  its  proper  position,  putting  a  nut  on  the 
top  of  the  bolt  and  a  wire  in  the  hole  made 
for  a  key  to  keep  the  nut  in  place.  He  then 
proceeded  to  the  station  for  which  be  bad  or- 
ders, a  distance  of  19  miles.  When  with- 
in about  a  half  a  mile  of  that  station,  the 
left  eccentric  strap  broke,  threw  back  the 
lever,  and  broke  respondent's  arm.  The  Jury 
returned  a  verdict  for  $3,000  for  plaintiff. 
This  appeal  was  taken  from  the  order  over- 
ruling  appellant's  motion  in  the  alternative. 

1.  Defendant's  first  point  is  that  the  com- 
plaint does  not  state  a  cause  of  action.  The 
question  before  us  is  not  whether  that  com- 
plaint Is  technically  perfect,  but  whether  it 
is  valid  as  against  objections  made  after  the 
case  bad  been  called  for  trial  and  plaintiff 
had  Introduced  some  evidence.  The  plead- 
ing charged  defendant  with  negligence,  and 
advised  it  that  the  accident  was  due  to  an 
imperfection  in  "the  left  go-ahead  eccentric" 
and  other  parts  connected  therewith.  That 
defendant  was  in  any  wise  prejudiced  by 
any  inartistic  imperfection  is  not  suggested. 
The  assignment  of  error  is  without  merit. 

2.  The  second  point  argued  by  defendant 
Is  that  "plaintiff  acted  for  the  defendant  in 
deciding  to  repair  the  engine,  made  the  re- 
pairs, and  voluntarily  used  the  engine  after 
it  bad  been  repaired  and  assumed  the  risk." 
Defendant's  rules,  of  which  plaintiff  had  full 
knowledge,  required  the  plaintiff  to  take  ev- 
ery precaution  for  his  safety,  to  resolve  ail 
doubts  in  favor  of  the  safe  course,  and  never 
to  take  an  unusual  risk.    Plaintiff  was  fa- 


miliar with  the  relation  of  the  eccentric 
straps  to  the  lever  that  caused  the  Injury  and 
the  probable  consequences  of  a  break  In  an 
eccentric  strap,  the  effect  of  the  loosening 
of  the  strap  upon  the  eccentric,  and  the  dan- 
ger of  the  parts  coming  off.  Plaintiff  under- 
took to  repair,  and  to  proceed  with  the  en- 
gine as  repaired,  as  part  of  his  employment. 
He  was  at  perfect  liberty  to  proceed  no  fur- 
ther when  he  discovered  the  break,  and  to 
report  the  accident  to  the  master  mechanic, 
and  to  await  his  orders.  He  had  the  same 
freedom  In  deciding  whether  be  could  him- 
self make  the  repairs  and  proceed  In  safe- 
ty. He  was  in  full  possession  of  all  the  facts 
and  In  absolute  authority.  The  failure  to 
make  the  engine  safe  was  his  failure.  Hav- 
ing made  the  repairs,  and  having  proceeded 
to  use  the  engine  with  full  Imowledge  of  all 
facts,  and  necessarily  appreciating  all  the 
danger  himself,  he  must  be  held  to  have  as- 
sumed the  risk  in  so  doing.  This  argument 
by  defendant  the  learned  trial  Judge  recog- 
nized as  the  only  serious  question  in  the 
case.  In  his  memorandum  be  said:  "Wheth- 
er or  not  an  engineer  under  such  circum- 
stances should  abandon  his  Journey  and  re- 
port the  condition  of  matters  to  headquarters 
for  instructions,  or  should  make  such  tempo- 
rary repairs  as  were  possible  and  proceed  for 
the  short  remainder  of  his  run,  was  for  the 
engineer  in  the  exercise  of  his  best  judg- 
ment to  determine;  and  he  does  not  neces- 
sarily assume  the  risks  of  the  Journey  be- 
cause he  erred  in  judgment.  It  is  not  every 
defect  in  bis  engine  discovered  by  the  en- 
gineer that  would  Justify  him  in  stalling  his 
train  and  waiting  for  repairs  from  distant 
headquarters,  and  whether  any  particular 
case  required  such  action  must  necessarily 
be  left  to  the  good  Judgment  of  the  engineer, 
both  on  general  principles  governing  the  duty 
of  an  employs  to  bis  master  and  the  special 
rule  of  the  defendant  company  given  in  evi- 
dence at  the  trial.  Whether  the  engineer  in 
this  case  was  required  to  do  one  thing  or  the 
other  was,  I  think,  for  the  jury  to  say." 

His  conclusion  was,  we  are  satisfied,  cor- 
rect Mr.  Labatt  has  thus  summarized  the 
authorities :  "The  case  of  a  railway  servant 
stands  upon  a  special  footing,  as  he  is  deem- 
ed to  owe  a  duty  to  the  public  as  well  as 
to  his  employers,  and  the  effect  of  the  de- 
cision, as  a  whole,  is  that  be  is  Justified  In 
taking  much  greater  risks  than  employes  in 
other  occupations,  without  necessarily  for- 
feiting his  right  of  action.  Under  ordinary 
circumstances,  such  a  servant  seems  to  be 
at  all  events  entitled  to  remain  at  work 
until  he  obtains  an  opportunity  of  notifying 
the  proper .  agent  of  tbe  master  as  to  the 
existence  of  danger.  It  is  only  in  very  ex- 
treme circumstances  that  he  will  not  be 
warranted  In  remaining  on  a  train  until  It 
reaches  the  next  station.  But  tbe  exigencies 
of  railway  traffic  will  not  excuse  the  serv- 


•Psr  other  eases  see  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Dlgi.  U07  u>  data,  ft  Reporter  Indexes 


Digitized  by 


L-oogle 


670 


122  NORTHWESTERN  RBPORTEB. 


(Mlnii- 


ant  for  runnliiK  the  risk  of  almost  certain 
Injury."  It  would  merely  incumber  the  re- 
ports to  here  discuss  or  to  amplify  the  au- 
thorities there  cited.  That  in  the  case  at 
bar  the  engineer's  course  was  a  reasonably 
prudent  one  the  Jury  might  have  concluded 
from  many  facts  generally,  and  from  the 
particular  fact  that  the  engine  ran  18^  miles 
out  of  a  possible  19  with  entire  safety. 

The  authorities  to  which  defendant  calls 
our  attention  In  'this  case  do  not  at  all  con- 
trol. It  Is  to  be  borne  in  mind  that  at  tliis 
point  defendant  Is  arguing  and  we  are  de- 
ciding the  question  of  assumption  of  risk, 
and  not  the  question  of  defendant's  negli- 
gence. In  Scott  T.  Eastern  Ry.  of  Minn. 
(Minn.)  95  N.  W.  892,  a  freight  conductor 
was  held  guilty  of  contributory  negligence 
In  using  a  step  on  a  car,  which  step  was  in 
bad  order.  The  defect  existed  when  plaintiff 
was  directed  to  take  the  car  out.  That  case 
Is  as  foreign  to  the  immediate  issue  as  is 
Nordquist  ▼.  Railway,  89  Minn.  485,  95  N. 
W.  322,  in  which  a  conductor  of  a  freight 
train  was  held  guilty  of  contributory  negli- 
gence as  a  matter  of  law  in  not  complying 
with  the  special  rule  as  to  conduct  of  con- 
ductors at  a  mountain  tunnel,  requiring  them 
to  inform  the  engineers  how  many  cars  of 
air  were  working.  Plaintiff  bad  no  personal 
knowledge  that  the  air  was  working  on  15 
cars  back  of  the  engine.  "Plaintiff  did  not  In- 
form the  engineer  how  many  cars  of  air 
were  working,  as  the  rule  required;  for  he 
bad  not  informed  himself  In  the  premises." 
The  train  proceeded,  became  unmanageable, 
ran  at  a  dangerous  rate  of  speed  through  the 
tunnel  to  a  point  below  where  it  left  the  rails 
at  a  curve,  was  thrown  down  the  moun- 
tain side,  and  plaintiff  injured.  The  other 
decisions  to  which  we  are  specially  referred 
in  this  connection  set  forth  admitted,  famil- 
iar, but  irrelevant,  principles.  Nor  is  the  case 
controlled  by  defendant's  authority  to  the  ef- 
fect that  a  servant  who  is  employed  to  repair 
machinery,  who  as  a  part  of  tils  duty  handles 
defective  machinery,  assumes  all  risks  arising 
from  such  defects.  That  in  Kelley  \.  Rail- 
way Co.,  35  Minn.  490,  29  N.  W.  173,  a  yftrd 
brakeman  engaged  in  handling  disabled  cars 
assumed  the  risk  of  handling  such  cars  is  In 
no  wise  consistent  with  the  conclusion  here 
reached.  Nor  does  defendant  strengthen  Its 
position  In  this  case  by  citing  Broderick  v. 
Railway  Co.,  74  Minn.  163,  77  N.  W.  28, 
In  which  a  servant,  employed  to  replace 
rotten  wooden  poles  with  iron  poles,  placed 
a  ladder  against  a  wooden  pole  and  was  in- 
jured by  Jumping  off  when  the  pole  broke 
at  the  ground,  or  Saxton  v.  Telephone  Co., 
81  Minn.  314,  84  N.  W.  109,  in  which  a  serr- 
ant  was  injured  by  a  fall  from  a  pole  which 


he  had  climbed  for  the  purpose  of  detach* 
ing  and  removing  a  wire  preparatory  to  tak- 
ing the  pole  down. 

3.  Defendant's  third  point  is  that  plaintiff 
was  guilty  of  contributory  negligence.  We 
are  at  a  loss  to  see  how  possible  failure  on 
plaintilTs  part  to  originally  inspect  the  en- 
gine has  any  direct  connection  as  the  proxi- 
mate cause  of  plaintiffs  injury.  See  Le  Due 
V.  Railway  Co.,  92  Minn.  288-291,  100  N.  W. 
106.  If  plaintiff  was  guilty  of  contributory 
negligence  at  all,  it  was  when  he  started  the 
engine  in  motion  after  he  himself  had  made 
repairs  and  necessarily  knew  the  defective 
condition  of  the  eccentric.  The  view  previ- 
ously expressed  as  to  his  conduct  controls, 
and  Justified  the  trial  court  in  trying  the 
question  as  one  of  fact 

4.  Defendant  further  Insists  tliat  the  ver- 
dict was  not  Justified  by  the  evidence.  Here 
defendant  urges  that  it  was  not  shown  to 
have  been  negligent  On  defendant's  state- 
ment of  facts  it  would  be  a  serious  question 
whether  its  conclusion  did  not  follow.  The 
record  contains  enough  to  fully  Justify  the 
trial  court  in  submitting  the  question  to  the 
Jnry  and  in  sustaining  its  verdict  for  the 
plaintiff.  Defendant's  own  roundhouse  fore- 
man testified  that  the  defective  condition  of 
the  eccentric  of  the  engine  in  question  had 
been  reported  by  the  engineer  who  had  pre- 
viously brought  It  in,  that  entries  in  the  road 
book  had  been  made  with  respect  thereto, 
and  that  certain  repairs  were  thereupon 
made.  Plaintiff  discovered  that  the  bolts  by 
wbigh  the  attachment  was  made  were  old 
and  their  threads  worn.  Moreover,  the  oc- 
currence of  the  accident  within  a  short  dis- 
tance from  the  place  of  inspection  was  evi- 
dence of  negligence.  Sheedy  v.  Railway  Co., 
65  Minn.  357,  57  N.  W.  60.  And  see  Ceder- 
berg  V.  Railway  Co„  101  Minn.  100,  111  N. 
W.  953.  It  is  so  plain  that  the  Jury  might 
have  properly  found  the  negligence  of  the 
defendant  to  have  been  the  proximate  cause 
of  the  injury  that  it  would  Justify  no  elabor- 
ation here. 

6.  Finally,  defendant  urges  that  it  was  er- 
ror for  the  court  to  have  instructed  the  Jury, 
as  it  did,  that  it  was  defendant's  duty  to 
furnish  plaintiff  instrumentalities  that  were 
safe  for  use.  The  attention  of  the  court 
was  not  called  to  this  matter  before  the  Jury 
retired.  Stelnbauer  v.  Stone,  85  Minn.  274, 
88  N.  W.  754.  Within  the  familiar  rule  on 
the  subject  this  did  not  constitute  reversible 
error.  Wallgora  v.  Foundry  Co.  (Minn.) 
119  N.  W.  395.  It  is  to  be  noted  that  in  Kreigh 
T.  Westlnghouse  Co.,  214  U.  S.  249,  29  Sup. 
C!t  610,  53  L.  Ed.  984,  Mr.  Justice  Day  uses 
both  formulas.    No  prejudice  appears. 

Affirmed. 


Digitized  by  LjOOQIC 


Neb.) 


TABNOSEI  T.  OUDAHY  PACKING  CO. 


671 


TABNOSEI  T.  CUDAHT  PACKING  CO. 

(No.  16,591.) 

(Sapreme  Court  of  Nebraska.    Sept.  25,  1009.) 

1.  Tbial  (S  143*)— IhREcrioN  of  Vbbdict. 

Where  the  evidence  upon  a  question  of  fact 
material  to  the  issue  is  conflicting,  and  such  that 
reasonable  minds  might  reach  different  conclu- 
sions, Uie  question  is  one  for  the  jury,  and  it  is 
error  for  the  court  to  direct  a  yerdict.  Gillis  v. 
Paddock's  Estate,  77  Neb.  604,  109  N.  W.  734, 
followed. 

[EM.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  {  342;   Dec.  Dig.  |  143.*] 

2.  MA0TEB    AND    SERVANT    (|    217*)— ASSUIIP- 

noN  OF  Risk— Unsafe  Place  to  Wohk. 
A  servant  does  not  assume  the  risk  of  in- 
jury arising  from  his  master's  having  negligent- 
ly furnished  him  an  unsafe  and  defective  work- 
ing place,  unless  the  servant  knew  of  the  unsafe 
or  defective  condition,  or  ought  by  the  exercise 
of  reasonable  care  to  have  known  of  such  unsafe 
or  defective  condition. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  il  574-583;    Dec  Dig.  | 
217.»] 
8.  Masteb  and   Sebvant  ({  265*)- Actions 

FOB  INJUBIES— BuBDEN  OF  PbOOF— ASSUMP- 
TION OF  Risk. 

In  an  action  for  damages  for  personal  in- 
juries by  a  servant  against  his  master  grounded 
upon  the  latter's  negligence,  assumption  by  the 
servant  of  the  risk  of  the  injury  other  than  that 
usually  and  ordinarily  incident  to  his  service  Is 
an  affirmative  defense,  the  burden  of  establish- 
ing which  rests  upon  defendant. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  S  907;  Dec.  Dig.  |  265.*] 

(Syllabus  by  the  C!onrt) 

Appeal  flrom  District  Court,  Douglas  Conn- 
ty;  Estelle,  Judge. 

Action  by  Joseph  Tamoskl  against  the 
(^dahy  Packing  Company.  Judgment  for 
plaintiff,  and  defendant  appeals.     Affirmed. 

Greene,  Breckenrldge  &  Matters,  for  ap- 
pellant.   Lambert  &  Winters,  for  appellee. 

GOOD,  C.  Plaintiff  sued  to  recover  for 
p«8onal  injuries  sustained  while  employed 
by  defendant  as  a  painter  in  Its  South  Oma- 
ba  packing  bouse.  He  alleges  that  defend- 
ant negligently  assigned  him  to  a  certain 
dressing  room  wherein  to  change  his  clothes 
mornings  and  evenings,  that  the  floor  of 
said  dressing  room  was  rotten,  unsafe,  and 
dangerous,  and  that  be  was  injured  by  said 
floor  giving  way  and  precipitating  him  Into 
a  hole  therein.  Defendant  denied  negligence, 
and  alleged  that  It  was  unnecessary  for 
plaintiff  to  use  that  part  of  the  premises 
where  be  was  Injured ;  that  the  unsafe  and 
dangerous  condition  of  the  premises  was 
open,  obvious,  and  known  to  plaintiff;  that 
plaintiff  assumed  the  risk  of  the  Injury, 
and  was  negligent  In  his  use  of  the  premises. 
The  affirmative  allegations  of  the  answer 
were  traversed  by  the  reply.  Plaintiff  had 
judgment,  and  d^endant  has  appealed. 

From  the  record  it  appears  that  plain- 
tiff was  employed  as  one  of  a  gang  of  paint- 
ers in  defendant's  packing  plant;    that  it 


is  necessary  or  at  least  desirable  before  com- 
mencing work  In  the  morning  that  the  paint- 
ers chaise  their  ordinary  clothing  for  other 
clothing  suitable  for  their  work,  and  to 
again  change  at  the  close  of  their  day's 
work.  A  certain  part  of  the  premises  was 
assigned  to  the  plaintiff  and  the  other  paint- 
ers as  a  dressing  room.  This  so-called  dress^ 
Ing  room  was  located  over  certain  machin- 
ery which  was  Inclosed  or  boxed  In.  The 
top  of  the  box  arrangement  Inclosing  the 
machinery  formed  the  floor  of  the  dressing 
room.  This  room  was  perbaps  20  to  25  feet 
from  east  to  west  and  30  to  40  feet  long 
from  north  to  south.  Just  above  the  floor 
of  tbe  dressing  room  and  passing  froni  east 
to  west  were  certain  pipes  and  beams.  A 
number  of  the  painters  had  boxes  or  lockers 
in  this  dressing  room  In  which  they  stored 
their  clothing  and  lunches.  A  part  of  these 
were  on  the  north  and  part  on  tbe  south 
Bides.  It  also  appears  that  they  usually  ate 
their  noonday  meals  in  this  so-called  dress- 
ing room.  Plaintiff  usually  changed  bis 
clothes  and  ate  his  lunch  on  the  north  side 
of  the  room.  There  were  no  windows  in  the 
dressing  room.  The  only  natural  light  was 
afforded  by  a  combination  ventilator  and 
skylight,  but  the  glass  in  this  had  become 
smoky  and  dirty  and  afforded  but  little  light. 
There  were  electric  lights  suspended  from 
the  celling  of  the  main  room,  but  most,  if  not 
all,  of  these  lights  were  lower  than  the  floor 
of  the  dressing  room,  and  afforded  but  little 
light  therein.  On  the  morning  of  November 
5,  1906,  after  plaintiff  had  been  employed 
by  defendant  for  about  six  weeks,  he  chang- 
ed his  clothing  as  usual  on  the  north  side 
of  the  dressing  room,  and  started  to  leave 
the  dressing  room,  and  was  in  the  act  of 
passing  from  the  north  side  over  the  pipes 
and  beams  to  the  south  side  when  some  of 
the  boards  of  the  floor  gave  way,  and  pre- 
cipitated him  into  a  hole,  whereby  he  re- 
ceived the  Injuries  complained  of. 

Defendant  contends  that  the  undisputed 
evidence  shows  that  the  floor  on  the  north 
side  of  the  dressing  room  was  rotten,  weak, 
full  of  holes,  and  was  openly  and  obviously 
unsafe  and  dangerous;  that  plaintiff  had 
been  warned  not  to  use  the  north  side  of 
the  room  or  to  go  on  the  north  side  because 
of  its  unsafe  condition;  that  he  knew  of 
the  unsafe  and  dangerous  condition  of  the 
floor  on  the  north  side  on  the  morning  of 
November  5th.  when  he  was  injured;  and 
that  plaintiff  thereby  assumed  all  risk  of  the 
injury  in  using  that  side  of  the  dressing 
room  under  the  circumstances.  It  is  undis- 
putied  that  the  floor  was  In  an  unsafe  and 
dangerous  condition,  and  there  Is  evidence 
tending  to  show  that  plaintiff  had  been  warn- 
ed and  knew  of  the  unsafe  condition  and 
the  danger  In  using  that  part  of  the  dress- 
ing room,  and  that  the  unsafe  and  dangerous 
condition  was  obvious  to  a  person  of  ordl- 


•fW  otber  Glial  ■••  uuns  topto  and  lactlon  NUMBER  ia  Dec  A  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


672 


122  NORTHWESTERN  REPORTER. 


(Nek 


nary  tnteUlgence.  Upon  the  other  hand, 
there  was  evidence  which  tended  to  show 
that,  by  reason  of  the  lack  of  light,  the  dan- 
gerous and  unsafe  condition  of  the  floor  was 
not  obvious,  and  was  not  readily  discernible, 
and  the  plaintiff  denies  that  he  had  ever 
been  warned  not  to  use  the  north  side  of  the 
dressing  room,  and  claims  that  be  had  never 
been  Informed  and  did  not  l^now  that  It  was 
dangerous  or  unsafe.  There  was  a  conflict 
In  the  evidence,  and  the  question  was  prop- 
erly for  the  Jury.  It  was  therefore  proper 
for  the  trial  court  to  refuse  to  direct  a  ver- 
dict for  the  defendant.     * 

Defendant  complains  of  the  refusal  of  the 
trial  court  to  give  the  sixth  instruction  re- 
quested by  it  The  material  part  of  the  In- 
struction Is  as  follows:  "The  Cudahy  Com- 
pany may  permit  the  use  of  a  portion  of 
Its  premises  to  be  used  by  the  painters'  gang 
as  a  dressing  room,  and.  If  the  dangerous  or 
defective  condition  of  such  place  was  known 
by  plaintiff  or  If  he  had  an  opportunity  to 
ascertain  such  condition,  the  defendant  could 
not  be  held  liable."  This  does  not  correctly 
state  the  rule.  The  question  Is  not  properly 
whether  the  plaintiff  had  an  opportunity  to 
ascertain  the  defective  and  unsafe  condition, 
but  whether  he  knew  of  such  condition  or  by 
the  exercise  of  reasonable  care  ought  to 
have  known  of  such  condition.  The  correct 
rule  was  given  by  the  court  in  the  fifth  par- 
agraph of  Its  charge. 

Defendant  complains  of  the  fourth  Instruc- 
tion given  by  the  court  on  Its  own  motion. 
The  part  of  the  Instruction  complained  of 
la  as  follows:  "But  the  burden  of  proof  Is 
upon  the  defendant  to  satisfy  you  by  a  pre- 
ponderance of  the  testimony  that  the  said 
Tamoskl  knew,  or  by  the  exercise  of  reason- 
able care  ought  to  have  known,  of  the  dan- 
gerous condition  of  said  premises."  Defend- 
ant appears  to  Insist  that  the  risk  was  in- 
cident to  plalntlfTs  employment,  and  under 
a  general  rule,  well  established  by  this  and 
other  courts  of  last  resort,  the  risk  of  in- 
jury was  assumed  by  the  plaintiff.  There 
is  no  question  as  to  the  rule  contended  for, 
but  we  do  not  think  it  applicable  In  the  in- 
stant case.  The  rule  Is  well  established  that 
the' master  must  use  reasonable  care  to  pro- 
vide a  reasonably  safe  working  place  for  his 
servants.  A  servant  assumes  the  ordinary 
risks  and  danger  Incident  to  his  employment, 
but  he  does  not  assume  the  risk  of  danger 
due  to  his  master's  negligence  in  his  failure 
to  furnish  him  a  reasonably  safe  place  to 
work.  Grimm  v.  Omaha  Electric  Light  ft 
Power  Co.,  79  Xeb.  387,  112  N.  W.  020.  If 
plaintiff's  evidence  Is  worthy  of  credence, 
and  the  jury  found  that  It  was,  he  had  no 
knowledge  or  Information  that  the  floor  was 
defective  or  dangerous,  and  he  had  no  rea- 
son to  expect  or  anticipate  that  be  was. In 
any  danger  from  using  the  north  side  of  the 
dressing  room,  and  he  did  not  by  reason  of 


his  employment  assume  the  risk  of  injury 
by  reason  of  the  unsafe  and  defective  condi- 
tion of  the  floor  which  was  unknown  to  him. 
Defendant  contends  that  the  burden  of  proof 
was  upon  the  plaintiff  to  show  that  be  did 
not  know,  or  that  by  the  exercise  of  reason- 
able care  he  ought  not  to  have  known,  of  the 
dangerous  and  defective  condition  of  the 
floor.  Whatever  the  rule  may  be  In  other 
Jurisdictions,  it  is  not  the  rule  in  this  state. 
The  Injury  did  not  arise  from  a  risk  usually 
and  ordinarily  incident  to  plaintiff's  service. 
In  an  action  by  a  servant  against  his  mas- 
ter. If  the  latter  for  a  defense  relies  upon 
an  assumption  of  a  risk  that  Is  not  usually 
and  ordinarily  incident  to  the  plalntlfTs  serv- 
ice, the  master  must  specially  plead  assump- 
tion of  risk.  Maxson  v.  J.  I.  Case  Thresh- 
ing Machine  Co.  (Neb.)  116  N.  W.  281,  16  L. 
R.  A.  (N.  S.)  963.  It  follows  that.  If  the  de- 
fendant must  plead  the  assumption  of  risk, 
then  the  burden  of  proof  rests  upon  him  to 
establish  It  In  Grimm  v.  Omaha  Electric 
L.  &  P.  Co.,  supra,  it  was  held  that  a  serv- 
ant by  his  contract  of  employment  assumes 
the  ordinary  risks  and  danger  incident  there- 
to, but  that  he  does  not  assume  the  risk  of 
dangers  due  to  his  master's  negligence,  and 
In  the  opinion  it  is  said  that  the  burden  of 
proof  la  upon  the  defendant  to  establish 
such  defense.  See,  also.  New  Omaha  Thomp- 
son Houston  Electric  Light  Co.  ▼.  Dent  6S 
Neb.  674,  U  N.  W.  819,  103  N.  W.  1091; 
Evans  Laundry  Co.  v.  Crawford,  67  Neb.  153, 
93  N.  W.  177. 

The  defendant  also  complains  that  the 
court  erred  in  refusing  to  give  the  second 
and  third  Instructions  requested  by  it  An 
examination  of  the  court's  charge  to  the 
Jury  discloses  that  the  substance  of  these  In- 
structions was  Included  in  the  third  para- 
graph of  its  charge.  The  same  Instructions 
having  already  In  substance  been  given  to  the 
Jury,  It  was  not  error  to  refuse  those  re- 
quested. 

We  find  no  reversible  error  In  the  record, 
and  therefore  recommend  that  the  Judgment 
of  the  district  court  be  affirmed. 

DUFFIE,  EPPERSON,  and  CALKINS, 
CC,  concur. 

PER  CURIAM.  For  the  reasons  given  In 
the  foregoing  opinion,  the  Judgment  of  the 
district  court  Is  affirmed. 


DAVIS  V.  STERNS  et  al.     (No.  15.742.) 
(Supreme  Court  of  Nebraska.    Sept.  25.  1909.) 

1.  Evidence  (J  462*)— Parol  Evidence  Af- 

FECTiNo  Wbitings— Notes. 

It  is  not  error  to  submit  oral  testimony  to 
the  iury  to  show  the  purpose  for  which  a  new 
tinlile  promissory  note  was  executed,  where  snch 
note  is  sued  on  by  the  payee  named  In  the  note. 

[Ed.   Note.— For   other   rases,   see   Evidence, 
Cent.  Dig.  {  2134 ;   Dec.  Dig.  %  462.*] 


*For  other  cases  see  same  topic  and  section  NUMBER  In  Dee.  &  Am.  Digs.  1907  to  date,  ft  Reporter  IndexM 


Digitized  by  LjOOQIC 


Neb.) 


DAVIS  V.  STERNS. 


673 


2.  Evidence  (|  462*)— Pabol  Evidence  Af- 

FECTiNO  Wbitii^qs— Notes. 

A.  and  B.  purchased  a  tract  of  land  and 
some  personal  property  jointly.  A.  obtained 
from  B.  the  latter's  negotiable  promissory  note 
for  $6,500  merely  to  show,  in  event  of  death  or 
other  casualty  happening  to  B.,  that  the  interest 
of  A.  in  the  property  so  purchased  was  of  the 
amount  of  $6,500.  Held,  m  a  suit  by  A.  against 
B.  to  recover  on  the  note,  its  face  value  with 
interest,  that  B.  could  properly  show  the  pur- 
pose for  which  the  note  was  given,  and  that  it 
was  executed  without  consideration. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  i  2134;   Dec.  Dig.  S  462.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Cherry  Coun- 
ty;   Harrington,  Judge. 

Action  by  Levi  L.  Davis  against  Floyd  B. 
Stems  and  others.  Judgment  for.  defend- 
ants, and  plaintiff  appeals.    Affirmed. 

J.  H.  Broady  and  Walcott  &  Morrlssey, 
for  appellant.  H.  M.  Sullivan  and  C.  L. 
Gutterson,  for  appellees. 


DEAN,  J.  Levi  L.  Davis,  plaintiff  and 
appellant,  commenced  this  suit  to  recover 
on  a  promissory  note  against  the  defendants, 
who  are  husband  and  wife,  for  an  alleged 
loan  of  money.  The  execution  and  delivery 
of  the  note  sued  on  was  admitted  by  defend- 
ants. Following  is  a  copy  of  the  note :  "Hy- 
annis.  Neb.,  June  23,  1902.  Six  months 
after  date,  for  value  received,  we  jointly 
and  severally  promise  to  pay  to  the  order 
of  L.  D.  Davis,  six  thousand  five  hundred 
dollars,  with  Interest  at  6%  per  annum  from 
date  imtll  paid.  The. drawers  and  endorsers 
severally  waive  presentment  for  payment, 
protest,  and  notice  of  protest,  and  nonpay- 
ment of  this  note,  and  all  defenses  on  the 
ground  of  any  extension  of  the  time  of  pay- 
ment that  may  be  given  by  the  holder  or 
holders,  to  them  or  either  of  them.  F.  B. 
Sterns.  Minnie  A.  Sterns.  Payable  at  the 
Bank  of  Byannis,  Hyannis,  Nebr.  $6,500.00 
Due  .  Hyannis,  Col.  No.  6177.  Hy- 
annis, Neb." 

The  case  was  tried  to  a  Jury.  The  de- 
fendants recovered  a  verdict  and  judgment 
of  dismissal,  and  plaintiff  appeals.  The  pe- 
tition Is  in  the  usual  form  employed  in  de- 
claring upon  a  promissory  note.  The  defend- 
ants answered  separately.  Floyd  B.  Sterns 
for  his  answer  alleges,  in  substance:  That 
It  was  agreed  between  plaintiff  and  himself 
that  they  would  jointly  purchase  a  ranch  in 
■n-estern  Nebraska,  each  to  pay  one-half  of 
tbe  purchase  price,  defendant  to  have  the 
management  and  to  reside  on  the  ranch,  and 
that  each  of  the  parties  should  have  the 
light  to  run  an  equal  number  of  cattle  there- 
on; that  the  defendant  was  to  have  $.°)0  a 
month  as  manager,  one-half  to  be  paid  by 
plaintiff;  that  in  February,  1002,  they  to- 
gether went  to  Cherry  county,  and  decided 
upon  purchasing  the  Stansbie  ranch  or  range. 


together  with  the  horses,  machinery,  house- 
hold goods,  and  fences  on  adjoining  lands 
belonging  to  the  ranch.  The  ranch  consisted 
of  1,120  acres  of  deeded  land  at  the  agreed 
price  df  $13,000,  of  this  $8,000  was  to  be 
paid  in  cash  and  $5,000  to  be  a  deferred  pay- 
ment evidenced  by  a  note  secured  by  mort- 
gage on  the  ranch  to  be  given  when  title  was 
perfected  by  Stansbie.  That  $500  was  paid 
to  Stansbie  at  the  time  of  purchase,  the  re- 
mainder of  the  cash  payment  to  be  made 
when  the  title  was  completed  by  Stansbie. 
That  the  parties  jointly  and  as  partners 
took  possession  of  the  property  on  May  2, 
1902,  and  it  was  then  agreed  each  should 
have  an  undivided  one-half  interest  in  the 
property.  That  in  June,  1902,  plaintiff  and 
Floyd  B.  Sterns  agreed  with  Stansbie  that 
$8,000  and  the  note  and  mortgage  should  be 
placed  in  escrow  awaiting  the  completion  of 
title.  That  for  convenience,  and  because 
plaintiff's  wife  was  in  Richardson  county, 
it  was  agreed  the  defendant  Floyd  B.  Sterns 
and  bis  wife  should  make  the  note  and 
mortgage  for  $5,000,  take  title  in  defendant 
Floyd  B.  Sterns,  and  afterwards  convey 
to  plaintiff  an  imdlvided  one-half  interest. 
That,  in  pursuance  of  tbe  agreement,  plain- 
tiff deposited  $6,500  in  the  bank  at  Hyannis, 
in  escrow,  being  his  share  of  the  purchase 
price,  and  Floyd  B.  Sterns  deposited  $1,500 
In  escrow,  with  the  agreement  that  when  the 
title  should  be  perfected  that  Stems  would 
execute  a  mortgage  to  Stansbie  for  $5)000 
on  the  ranch.  That  Stansbie  should  then 
convey  the  ranch  to  Sterns.  That,  after  the 
mortgage  was  recorded,  the  defendants  were 
to  convey  to  plaintiff  an  undivided  one-half 
interest  in  the  land.  That  in  pursuance  of 
the  agreement  defendant  moved  to  the  ranch 
with  his  family,  and  plaintiff  and  defendants 
took  possession  of  the  land.  The  plaintiff 
shipped  over  100  head  of  cattle  to  run  on  the 
ranch  in  April,  1902,  and  afterwards  by 
agreement  came  to  the  ranch  and  purchased 
more  horses  to  be  used  thereon,  and  stayed 
on  the  ranch  with  defendants  and  made 
lasting  improvements  thereon.  That  he  re- 
mained on  the  ranch  until  June  23,  1902,  on 
which  date  the  note  in  controversy  was  ex- 
ecuted. That  the  plaintiff  was  then  sudden- 
ly and  unexpectedly  called  to  return  to 
Humboldt  on  urgent  business  affairs.  That 
just  prior  to  his  departure  he  requested,  and 
the  defendants  gave  blm,  the  note  in  suit  as 
evidence  of  his  interest  in  the  ranch  and 
other  property.  That  Stansbie  had  not  on 
June  23,  1902,  yet  procured  complete  title 
to  all  the  land,  and  was  therefore  not  in 
position  to  convey  it.  That  the  $6,500  de- 
posited by  plaintiff  for  his  share  of  the  pur- 
chase was  yet  in  the  bank  awaiting  comple- 
tion of  title.  That  plaintiff  assured  defend- 
ant he  would  surrender  the  note  as  soon 
as  the  title  was  perfected.  That  on  or  about 
June    27,    1902,    the    title    being    perfected. 


•For  other  cues  Bee  same  topic  and  secUon  NUMBER  In  Dec.  ft  Am.  Dlga.  ISOT  to  date,  ft  Reporter  Indexes 
122  N.W.-43 


Digitized  by  VjOOQ  l€ 


674 


122  NORTHWESTERN  REPORTER. 


CNeik. 


Stansble  and  wife  executed  conveyances 
thereof  to  Sterns,  and  the  defendants  at  the 
same  time  executed  a  note  and  mortgage  on 
the  ranch  for  $5,000  to  Stansble,  and  also 
executed  and  acknowledged  a  deed  <fonvey- 
ing  to  plaintiff  bis  undivided  one-half  Inter- 
est In  the  ranch  and  Immediately  notified  him 
thereof  by  letter,  stating  they  were  ready 
and  willing  to  deliver  the  deed  to  him.  That 
about  this  time  plaintiff  became  dissatisfied 
with  the  purchase.  That  plaintiff  did  not 
answer  defendant's  letter  of  notification,  but 
remained  sUent  until  October,  1002,  when 
he  returned  to  the  ranch  at  which  time  the 
defendants  again  tendered  to  him  a  deed  to  his 
undivided  one-half  interest  In  all  the  prop- 
erty, and  demanded  a  surrender  of  the  note 
In  suit  That  plaintiff  refused  to  accept  the 
deed  and  refused  to  deliver  to  defendants 
the  note  sued  on.  That  defendants  are  not 
liable  for  the  note  or  any  part  thereof,  and 
allege  willingness  to  deliver  to  plaintiff  a 
deed  to  an  undivided  one-half  Interest  in  all 
of  the  property.  The  defendant  Minnie  A. 
Stems  alleges  that  she  never  had  any  estate 
of  her  own ;  that  she  signed  the  note  merely 
as  surety,  not  intending  thereby  to  bind  her 
separate  estate ;  that  the  debt  was  not  hers, 
and  that  she  received  no  benefit  or  considera- 
tion for  signing  the  note.  She  avers  the 
statements  of  her  codefendant  are  true ;  that 
all  the  conditions  for  the  giving  of  the  note 
to  be  performed  by  defendants  have  been 
performed;  that  the  plaintiff  procured  the 
note  through  fraud  and  deceit;  that  at  the 
time  of  Its  execution  he  Intended  to  repudi- 
ate the  agreement  and  to  hold  the  note  as  an 
obligation  against  defendants,  all  of  which 
was  then  unknown  to  them;  that  the  de- 
fendants believed  and  relied  on  the  state- 
ments of  plaintiff,  since  discovered  to  be 
false,  that  he  wanted  the  note  solely  to 
protect  himself  and  his  estate  against  loss  In 
event  of  the  death  of  defendant  or  anything 
unforeseen  happening  to  prevent  defendants 
from  performance  of  their  part  of  the  agree- 
ment Plaintiff's  reply  denied  generally  the 
allegations  of  new  matter  in  the  answers. 

The  weight  of  testimony  fairly  supports 
the  material  allegations  of  the  defendants. 
The  plaintiff  is  shown  by  the  proof  to  have 
taken  an  active  Interest  in  the  purchase  of 
the  ranch.  He  went  with  the  defendant 
Stems  from  Humboldt,  where  they  both  re- 
sided. In  February,  1902,  to  the  property  and 
together  they  examined  it  He  then  return- 
ed to  his  home,  and  about  May  Ist  plaintiff 
again  went  to  the  property,  taking  with  him 
a  large  number  of  cattle  to  run  on  the  range. 
He  remained  there  until  the  23d  of  June, 
when  he  was  unexpectedly  called  to  his 
home  on  urgent  business.  While  he  was  on 
the  ranch,  from  about  May  1st  until  June 
23d,  the  proof  shows  ie  took  an  active  part 
in  the  work  and  in  the  management  of  the 
property.  He  Joined  with  the  defendants  in 
plans  for  remodeling  the  house  and  Improv- 
ing the  property.    The  testimony  fairly  Indi- 


cates he  had  a  proprietary  Interest  In  the 
ranch.  On  April  14,  1902,  a  blU  of  sale  of 
the  personal  property  was  made  by  the  for- 
mer owner  from  whom  the  ranch  was  pur- 
chased, which  by  Its  terms  conveyed  it  to 
plaintiff  and  Stems.  The  note  in  suit  was 
executed  by  the  defendants  on  June  23d,  im- 
mediately after  plaintiff  received  the  mes- 
sage calling  him  home,  and  the  defendants 
testify  It  was  executed  solely  to  show  plaln- 
tUTs  Interest  in  the  property. 

Witness  Record,  cashier  of  a  bank  at 
Hyannis  in  1902,  testified  that  about  the  1st 
of  June  he  assisted  Stansble  in  closing  np  the 
negotiations  with  plaintiff  concerning  the 
sale  of  the  ranch,  which  were  afterwards  ac- 
quiesced In  by  Stems,  Witness  Nickels  wrote 
the  deed  from  Stansble  to  Stems,  and  testi- 
fies his  recollection  la  that  plaintiff  told  him 
to  name  Stems  as  grantee.  Mr.  and  Mrs. 
Sheldon,  who  live  near  the  ranch,  testify 
that  plaintiff  stopped  over  night  at  their 
place  whoi  he  was  taking  his  cattle  to  the 
ranch  in  the  spring  of  1902,  and  that  he 
then  told  them  that  he  and  the  defendant 
Stems  were  negotiating  for  the  purchase- 
of  the  Stansble  ranch.  Mr.  Unkefer,  a  real 
estate  agent  at  Hyannis,  who  went  with 
plaintiff  and  Stems  to  the  ranch,  pending 
the  purchase,  testified  that  they  seemed  to  be 
equally  interested  in  its  examination,  and 
that  the  plaintiff  made  particular  inquiry 
with  reference  to  many  features  and  details 
concerning  the  property.  It  is  established 
that  the  defendants  on  two  separate  occa- 
sions tendered  a  deed  to  an  undivided  onp- 
half  interest  in  the  ranch  to  plaintiff,  nn& 
demanded  the  return  of  their  note,  and  that 
he  refused  the  tender  and  retained  the  note. 
The  plaintio;  on  rebuttal  denied  much  of  the 
testimony  of  defendants  with  respect  to  his- 
deposit  of  $6,600.  He  testifies  it  was  a  loan 
made  to  defendants  jointly. 

In  April,  1902,  plaintiff  wrote  a  series  of 
letters  to  Sterns  that  appear  to  corroborate 
the  testimony  of  the  defendants  and  their 
witnesses.    The  letters  are  as  follows: 

"Humboldt,  Neb.  4-11-92  Floyd,  I  think 
$18,000  would  be  enougf  for  the  ranch  but 
you  can  use  your  own  Judgment  you  did  not 
say  anything  about  the  horses  and  machinery, 
or  whether  it  was  to  be  surveyed  or  not,  I 
think  it  shonld  be  surveyed  and  the  govern- 
ment comers  marked  so  we  could  tell  wliat 
they  were  by  the  number.    I*  L.  Davis." 

"Humboldt  Neb.,  4-12-92.  Mr.  Floyd 
Stems,  Hyannis,  Neb.  If  the  house  is  where 
It  Is  on  the  plots  It  is  to  far  north  to  take  It 
but  80  acres  of  the  hay  valley  where  the 
house  is.  I  should  think  it  would  proper 
to  have  It  surveyed  and  the  government  cor- 
ners marked,  then  we. could  tell  if  the  deeds 
covered  the  plot  Tou  can  get  him  to  come 
down  as  much  as  you  can.  And  let  me  know 
what  it  is.  by  all  means  be  shure  the  deed 
covers  the  valleys  he  showed  us.  no  guess 
work  about  it  do  not  sign  a  contract  till 
you  are  certain,    if  it  is  surveyed  you  must 


Digitized  by  LjOOQ  l€ 


Neb.) 


MoQUIRE  T.  CLABE. 


675 


take  the  numbers  of  the  government  ccwners 
and  send  them  to  me  If  It  comes  out  all  right 
I  think  we  had  better  make  a  deal.  All  for 
this  tlma    U  U  Davis." 

"Humboldt,  Nebr.  4-14-92  Floyd.  I  did 
not  get  your  letter  till  after  train  time.  I 
think  it  would  have  been  better  to  have  the 
deal  made  and  a  little  money  paid  if  he  Al> 
lot  was  to  scrip  the  valley  as  you  wrote 
•  ♦  ♦  I  expect  you  will  have  the  survey- 
ing dun  before  I  could  get  up  there,  if  you 
think  I  had  better  come  let  me  know  and  I 
will  come  if  you  have  made  the  deal  and 
want  some  money  Joust  you  say  so  I  will 
forward  it  promptly.  Tours  Res.  Lk  L,  Da- 
vis." 

"Humboldt.  Nebr.  4-2a-92  Floyd.  I  thought 
I  would  write  you  in  regard  too  the  price 
you  think  we  will  charge  for  keeping  cattle 
by  the  year,  also  for  the  summer  season. 
How  many  do  you  think  we  had  better  take. 
Did  you  get  anny  out  there.  Do  you  think  of 
being  responsible  for  strays  or  stole,  can 
yon  get  the  branding  Irons  made  out  there,  if 
there  is  no  blacksmith  in  Hyannls  I  can  get 
them  made.  You  name  bow  you  what  them 
made.  I  do  not  think  of  buying  anny  more 
cattle  at  present  You  might  invest  in  some. 
Vours  Resp.  L.  L.  Davis.  Will  we  charge 
more  tor  cows  than  we  do  for  steers." 

Much  more  testimony  was  adduced  by  de- 
fendants tending  to  still  further  fortify  their 
contention,  but  no  good  purpose  will  be  sub- 
served by  extending  this  opinion  in  its  re- 
view. 

The  plaintiff  argues  that  the  trial  court 
erred  in  permitting  oral  testimony  to  be  in- 
troduced by  the  defendants  to  contradict  the 
terms  of  the  note  sued  on.  It  is  elementary 
that  an  attempt  to  contradict,  vary,  or  change 
the  terms  of  a  written  instrnment  by  oral 
testimony,  in  the  absence  of  fraud,  accident, 
or  mistake,  is  not  ordinarily  permissible.  But 
that  is  not  the  question  before  us.  On  this 
feature  of  the  case,  the  defendants  merely 
sought  to  establish  by  oral  testimony  the  real 
purpose  for  which  they  executed  the  note  in 
suit.  The  trial  court  properly  permitted 
them  to  do  so.  This  court  has  long  been 
committed  to  this  salutary  rule,  and  we  can 
see  no  good  reason  for  departing  from  it 
Walker  v.  Haggerty,  30  Neb.  120.  40  N.  W. 
221,  is  in  point  In  that  case  the  defendants 
offered  testimony  to  show  the  consideration 
for  which  the  note  was  given.  This  was  held 
to  be  permissible.  The  court,  speaking  by 
Norval,  J.,  said:  "While  parol  testimony 
cannot  be  received  to  contradict  the  terms  of 
the  note,  it  was  clearly  admissible  to  show 
the  true  consideration  for  which  it  was  giv- 
en." A  like  principle  was  announced  by  Max- 
well, J.,  in  the  early  case  of  Collingwood  v. 
Bank,  16  Neb.  118,  17  N.  W.  339.  To  the 
same  effect  are  the  following:  Cortelyou  v. 
Hlatt  86  Neb.  584.  54  N.  W.  964 ;  Norman  v. 
Waite,  30  Neb.  302,  46  N.  W.  639.    See,  also. 


Morrow  v.  Jones,  41  Neb.  867,  60  N.  W.  869. 
In  Giftord  v.  Fox,  2  Neb.  (Unof.)  80,  96  N.  W. 
1066,  the  court  speaking  by  Day,  C,  held: 
"While  parol  testimony  may  not  be  received 
to  vary  or  contradict  the  terms  of  a  promis- 
sory note,  yet  the  consideration  for  which  it 
was  given  may  be  established  by  parol  tes- 
timony." 

Plaintiff  cites  Bank  t.  Belk,  66  Neb.  710, 
77  N.  W.  68,  but  the  rule  there  announced 
is  not  properly  applicable  to  the  facts  befdfe 
us.  There  the  note  sued  on  in  direct  terms 
stated  the  purpose,  and  the  consideration  for 
which  it  was  given,  an  element  that  is  lack- 
ing in  the  note  sued,  on  herein.  In  view  of 
our  uniform  holding,  we  therefore  conclude 
no  error  was  committed  by  the  trial  court  In 
permitting  testimony  to  be  introduced  on  the 
question  relating  to  the  purpose  for  which 
the  note  was  givou  From  all  the  evidence  it 
seems  clear  to  us  that  the  note  in  suit  was 
given  by  defendants  merely  for  the  purpose 
of  showing  plaintiff's  Interest  in  the  prop- 
erty, and  that  the  jury  was  Justified  in  find- 
ing that  defendants  received  no  considera- 
tion for  the  execution  of  the  note.  The  facts 
in  dispute  wera  fairly  submitted  to  the  jury, 
and  the  verdict  is  abundantly  sustained  by 
the  testimony.  We  find  no  error  in  the  rec- 
ord, and  no  reason  for  disturbing  the  verdict 
can  be  discovered. 

It  follows,  therefore,  that  the  judgment  of 
the  district  court  must  be,  and  it  hereby  is 
in  all  things  affirmed. 


McGUIBB  T.  CIiARK  et  al.    (No.  15.679.) 
(Supreme  Court  of  Nebraska.    Sept  23,  1009.) 
Deeds  (§  66*)— "Dkliveht"— VALinirr. 

On  a  record  showing  that  the  owner  of  a 
goTerament  homestead,  for  the  purpose  of  ap- 
parently divesting  himself  of  title  in  further- 
ance of  a  design  to  pre-empt  a  tract  of  ^vern- 
ment  land,  signed,  acknowledged,  and  registered 
a  deed  to  his  brother  without  the  latter's  knowl- 
edge, a  finding  that  there  was  no  delivery  of  the 
deed  was  held  proper,  where  grantor  never  In- 
tended to  deliver  it.  kept  it  in  his  own  hands, 
and  retained  possession  of  the  homestead. 

[Ed.  Note.— For  other  cases,  see  Deeds,  Cent 
Dig.  }  120;   Dec.  Dig.  |  36.* 

For  other  definitions,  see  Words  snd  Phrase*, 
vol.  2,  pp.  1938-1970,  vol.  8,  p.  7632.] 

(Syllabns  by  the  Court.) 

Appeal  from  District  Court  Custer  Coun- 
ty ;  Hostetler,  Judge. 

Action  by  Robert  McOulre  against  Hugh 
G.  Clark  and  others.  Judgment  for  defend- 
ants, and  plaintiff  appeals.    Affirmed. 

R.  A.  Moore,  for  appellant  H.  M.  Sulli- 
van, for  appellees. 

ROSE,  J.  This  is  an  action  to  quiet  plain- 
tUTs  title  to  a  quarter  section  of  land  in  Cus- 
ter county.  Patrick  McGuire,  a  brother  of 
plaintiff,  acquired  the  land  as  a  government 
homestead,  having  obtained  the  final  receipt 


*ror  other  esiee  see  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digi.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  LjOOQ  l€ 


676 


122  NORTHWESTERN  REPORTER. 


(Neb. 


September  10,  1886,  and  the  patent  April  11, 
1889.  Plaintiff's  Claim  to  title  rests  on  a 
warranty  deed  from  Patrick  McGulre.  It 
was  dated  Norember  1,  1886,  and  recorded 
June  10,  1888.  The  county  records  show  a 
reconreyance  from  Robert  McGulre  to  Pat- 
rick McGulre  December  23,  1889,  but  plain- 
tiff alleged  It  was  a  forgery,  and  that,  In  his 
absence  from  the  state,  Patrick  McGulre  In- 
duced some  one  to  Imi)ersonate  plaintiff,  and 
to  execute,  acknowledge,  and  deliver  the  forg- 
ed Instrument  Plaintiff  further  averred  that 
Patrick  McGulre,  on  the  strength  of  the  ap- 
parent title  based  on  the  forged  deed,  bor- 
rowed money  and  mortgaged  plaintiff's  land 
to  secure  the  loan;  that  the  mortgage  was 
foreclosed;  and  that  defendants,  with  full 
knowledge  of  the  forgery  and  of  plaintiff's 
ownership,  bought  the  property  and  claim  ti- 
tle through  mesne  conveyances  from  the  pur- 
chaser at  the  foreclosure  sale.  Plaintiff  al- 
so alleged  he  first  learned  of  the  forgery,  of 
the  mortgage,  and  of  the  foreclosure  proceed- 
ings in  February,  1906.  Defendants  denied 
plaintiff's  alleged  ownership  and  title,  and 
averred  that  Patrick  McGulre,  without  plain- 
tlfTs  knowledge  and  without  consideration, 
signed,  aclmowledged,  and  registered  the 
deed  under  which  plaintiff  claims  title. 
They  also  alleged  that  the  deed  was  never  de- 
livered; that  it  was  never  the  Intention  of 
Patrick  McGulre  to  deliver  It,  or  by  means  of 
It  to  divest  himself  of  title,  or  to  convey  the 
land  to  plaintiff ;  that  grantor  kept  the  deed 
and  retained  possession  of  the  land;  and 
that  the  deed  was  made  for  the  purpose  of 
ostensibly  divesting  the  title  of  grantor  in 
furtherance  of  a  design  on  his  part  to  pre- 
empt a  tract  of  government  land  near  bis 
homestead.  Defendants  also  pleaded  mesne 
conveyances  from  the  purchaser  at  the  fore- 
closure sale  and  the  defense  of  adverse  pos- 
session. In  addition,  they  denied  knowledge 
of  the  alleged  forgery.  On  all  the  issues 
raised  by  the  pleadings  the  trial  court  found 
in  favor  ot  defendants  and  dismissed  the 
suit    Plaintiff  appeals. 

Thirty-one  errors  are  assigned,  but  the  sum 
of  all  of  them  is  that  the  Judgment  is  not 
sustained  by  the  evidence.  Plaintiff  relies  on 
his  deed  from  the  patentee,  shows  he  did  not 
reconvey  the  land,  and  argues  bis  title  has 
never  been  divested.  To  Justify  the  dismissal 
of  the  suit  defendants  argue  that  plaintiff's 
deed  was  never  delivered  to  him,  and  that, 
therefore,  he  never  bad  any  title  to  the  land 
in  controversy.  They  also  rely  on  adverse 
possession  as  a  defense^  and  insist  the  find- 
ing In  their  favor  on  that  issue  Is  sustained 
by  the  evidence.  The  first  question  present- 
ed by  the  record,  therefore.  Is :  Do  the  proofs 
show  a  delivery  of  the  deed  from  Patrick  Mc- 
Gulre to  his  brother  Robert  McGulre?  There 
was  no  actual  delivery  or  formal  acceptance, 
but  plaintiff  insists  the  deed  was  signed  and 
acknowledged  by  the  grantor  and  recorded 
pursuant  to  his  order.  These  acts,  according 
to  plalntilTs  view  of  the  law,  amounted  to  a 


delivery  and  transferred  to  talm  grantor's  tl- 
tie  to  the  land.  Delivery  was  a  question  of 
fact  for  the  determination  of  the  trial  court, 
and  registration  of  the  deed  was  prima  fade 
evidence  thereof.  Gustln  v.  Michelson,  55 
Neb.  22,  75  N.  W.  153.  On  this  issue  the  trial 
court  found :  "The  said  Patrick  McGulre  on 
November  1,  1886,  made  a  deed  to  said  prem- 
ises and  Inserted  therein  the  name  of  his 
brother,  Robert  McGulre,  as  the  grantee 
thereof.  Whereupon  the  said  Patrick  Mc- 
Gulre procured  said  deed  to  be  recorded  In 
the  office  of  the  county  clerk  of  Custer  coun- 
ty, Neb.,  ez-offlcio  register  of  deeds  of  said 
county,  paid  the  recording  fee  therefor  and 
had  said  deed  returned  to  him,  the  said  Pat- 
rick McGulre,  who  always  thereafter  retain- 
ed the  possession  of  said  land.  The  court 
finds  that  said  deed  was  never  delivered  by 
the  said  Patrick  McGulre  to  Robert  McGulre ; 
that  the  said  Robert  McGuire  paid  nothing 
therefor,  and  that  there  was  no  considera- 
tion for  the  same ;  that  the  said  Patrick  Mc- 
Gulre did  not  Intend  when  be  executed  and 
recorded  said  deed  to  convey  the  title  to  said 
premises  to  the  said  Robert  McGulre,  but 
supposing  that,  under  the  federal  law,  be 
could  not  remove  from  the  homestead,  while 
the  title  thereto  still  remained  In  him,  to  a 
pre-emption,  for  the  purpose  alone  of -eppar- 
ently  vesting  the  title  in  his  brother,  the 
plaintiff,  he  executed  said  deed  and  at  the 
same  time  made  said  pre-emption  entry ;  that 
the  said  Patrick  McGulre  thereafter,  and 
some  time  during  the  years  1894  and  1885, 
died;  that  the  said  Robert  McGulre  never 
knew  anything  of  said  transaction  and  never 
knew  anything  about  said  deed  or  the  fact 
that  the  same  had  been  made  and  recorded 
until  long  after  Patrick  McGulre  had  died, 
and  some  time  during  the  year  1898.  The 
court  finds  that  the  said  Robert  McGulre 
never  claimed  to  own  said  land,  never  was 
in  possession  thereof,  never  ratified  and  ap- 
proved any  conveyance  thereof  to  himself, 
and  never  ratified,  approved,  or  accepted  said 
deed  of  the  said  Patrick  McGulre  prior  to 
the  year  1906." 

In  determining  whether  these  conclusions 
were  properly  drawn  from  the  evidence,  the 
entire  record  has  been  examined.  Registra- 
tion of  the  deed  is  the  only  evidence  of  de- 
livery. Other  proof  of  an  intention  on  part 
of  grantor  to  deliver  the  deed  is  entirely 
wanting.  There  was  no  evidence  that  the 
parties  had  previously  made  a  contract  of 
sale,  or  that  grantor  was  indebted  to  plain- 
tiff, or  that  the  latter's  creditors  were  assert- 
ing Hens.  On  the  other  band,  there  is  proof 
that  grantee  had  recently  come  from  Ireland 
with  money  furnished  by  grantor,  and  that 
the  money  had  been  refunded.  Both  parties 
were  unmarried.  In  acquiring  the  property 
for  himself  grantor  had  endured  the  hard- 
ships of  a  frontier  life.  After  registration  of 
the  deed,  he  mortgaged  the  land  to  procure 
funds  for  bis  own  benefit.  The  testimony  of 
the  grantee  himself  shows  that  be  never  saw 


Digitized  by 


L-oogle 


Men.) 


HoQUIRG  V.  CLARE. 


677 


the  deed;  that  he  did  not  know  It  was  placed 
on  record  or  who  caused  It  to  be  recorded; 
that  It  was  not  delivered  to  blm  personally 
by  his  brother  or  by  any  one  else;  and  that 
he  paid  bis  brother  nothing  for  it  There  is 
also  testimony  that  grantor  Icept  the  deed  in 
his  own  possession  after  it  was  recorded;  that 
he  retained  possession  of  the  premises  there- 
after; and  that  it  was  not  his  intention  to 
convey  the  premises  to  his  brother.  Grantee 
was  never  in  possession  of  the  land.  He  did 
not  attempt  to  incumber  or  convey  it  No 
creditor  of  his  attempted  to  subject  the  prop- 
erty to  the  payment  of  debts.  In  addition, 
witnesses  testified.  In  effect  that  grantor  said 
his  purpose  was  to  acquire  more  land,  and 
not  to  part  with  what  he  already  had.  This 
court  is  committed  to  the  rule  that  actual  de- 
livery and  formal  acceptance  of  a  deed  are 
not  essential  to  its  validity,  where  grantor 
placed  it  on  record  for  the  purpose  and  with 
the  Intent  of  transferring  the  title  pursuant 
to  a  valid  agreement  between  the  parties. 
Fryer  v.  Fryer,  77  Neb.  298,  109  N.  W.  175. 
124  Am.  St  Rep.  850.  In  the  case  cited  and 
in  other  cases  announcing  a  similar  doctrine 
the  intention  to  transfer  the  title  is  a  mate- 
rial element  In  the  present  case  such  an 
intention  is  entirely  wanting.  While  regis- 
tration is  evidence  of  delivery,  as  held  in 
Gustin  V.  Mlchelson,  65  Neb.  22,  75  N.  W. 
153,  the  mere  recording  of  an  acknowledged 
deed,  without  an  intention  to  deliver  it,  does 
not  operate  as  a  delivery  or  as  a  transfer  of 
title  to  grantee.  Samson  v.  Thornton,  3  Mete 
(Mass.)  275,  37  Am.  Dec.  135;  Barns  v.  Hatch, 
8  N.  H.  304,  14  Am.  Dec.  369 ;  Derry  Bank 
T.  Webster,  44  N.  H.  264;  Wiggins  v.  Lnsk, 
12  111.  132 ;  Hawkes  v.  Pike,  105  Mass.  560,  7 
Am.  Rep.  554;  Chess  v.  Chess,  1  Pen.  &  W. 
(Pa.)  32,  21  Am.  Dec.  350;  Herbert  v.  Herbert 
Breese  (III.)  354,  12  Am.  Dec  102;  Union 
Mutual  Ins.  Co.  ▼.  Campbell,  95  111.  267,  35 
Am.  Rep.  160;  Babbitt  T.  Bennett  68  Minn. 
2C0,  71  N.  W.  22;  Hooper  v.  Vanstrum,  92 
Minn.  406,  100  N.  W.  229;  Hogadone  v. 
Grange  Ins.  Co.,  133  Mich.  339,  94  N.  W. 
1045;  Franklin  Ins.  C!o.  r.  Feist  31  Ind.  App. 
390,  C8  N.  E.  188;  Triplett  v.  Scott  12  111. 
137.  In  holding  that  a  recorded  deed,  with- 
out an  intention  on  part  of  the  grantor  to  de- 
liver it  or  to  divest  himself  of  title,  was 
Dot  effective  as  a  conveyance,  the  Supreme 
Court  of  the  United  States,  by  Mr.  Justice 
Field,  said:  "The  evidence  ofTered,  so  far 
as  appears  by  the  record,  showed  that  the 
grantor  never  parted  with  Its  possession  ex- 
cept as  may  be  inferred  from  the  fact  of 
its  registry.  And  the  grantee  testified  that 
he  never  knew  of  its  existence  until  ifter 
the  death  of  the  grantor,  among  whose  papers 
it  was  found,  and  that  he  never  claimed  any 
Interest  in  the  property.  Yet  the  court  In- 
structed the  jury  that,  as  there  was  no  con- 
test of  creditors  against  the  deed,  the  instru- 
ment was  binding,  whether  delivered  or  not 
In  this  Instruction  there  was  also  clear  error. 
Tbe  delivery  of  a  deed  is  essential  to  the 


transfer  of  the  title.  It  is  the  final  act,  with- 
out which  all  other  formalities  are  ineffectu- 
aL  To  constitute  such  delivery,  the  grantor 
must  part  with  the  possession  of  the  deed, 
or  the  right  to  retain  it.  Its  registry  by 
him  Is  entitled  to  great  consideration  upon 
this  point,  and  might  perliaps,  justify,  in 
the  absence  of  opposing  evidence,  a  presump- 
tion of  delivery.  But  here  any  such  presump- 
tion is  repelled  by  the  attendant  and  subse- 
quent circumstances.  Here  the  registry  was, 
of  course,  made  without  the  assent  of  the 
grantee,  as  he  bad  no  knowledge  of  the  ex- 
istence of  the  deed,  and  the  property  it  pur- 
ported to  convey  always  remained  in  the  pos- 
session and  under  the  control  of  the  grantor." 
Younge  V.  Gnllbeau,  3  Wail.  636,  18  L.  Ed. 
262.  That  a  deed  may  be  Inoperative  where 
it  was  signed,  acknowledged,  and  recorded 
for  a  purpose  other  than  to  transfer  title 
was  announced  by  the  Supreme  Court  of  New 
Hampshire  in  tbe  following  language:  "It 
is  not  now  to  be  questioned  that  a  delivery 
is  essential  to  the  existence  of  the  deed.  It 
is  not  necessary  that  the  deed  be  delivered 
by  tbe  grantor  into  the  hands  of  the  grantee; 
It  may  be  delivered  to  a  third  person  for  the 
use  of  the  grantee;  it  may  be  delivered  abso- 
lutely or  conditionally;  but  there  must  be  a  de- 
livery. •  •  •  And  we  are  of  opinion  that 
the  sending  of  the  instrument  in  this  case  to 
be  recorded,  coupled  with  the  declaration  that 
It  was  made  to  prevent  the  land  from  being 
taken  to  pay  an  unjust  debt,  does  not  amount 
to  a  delivery.  There  was  nothing  said  or 
done,  in  this  case,  which  shows  a  delivery." 
Barns  v.  Hatch,  3  N.  H.  304,  14  Am.  Dec.  369. 

Cases  involving  the  acts  of  grantors  in 
leaving  deeds  with  magistrates  or  recording 
ofllcerB  for  delivery  are  distinguishable  from 
the  present  case.  In  those  cases  the  inten- 
tion to  deliver  the  deed  or  to  transfer  the 
title  is  shown  by  proof  or  inferred  from  cir- 
cumstances. Here  a  different  purpose  is  fair- 
ly established  under  the  rule  that  delivery  is 
a  question  of  intent  as  announced  in  Brown 
V.  Westerfield,  47  Neb.  399,  66  N.  W.  439,  53 
Am.  St  Rep.  532.  In  Samson  v.  Thornton,  3 
Mete.  (Mass.)  275,  37  Am.  Dec.  135,  Chief 
Justice  Shaw  said:  "A  deed  takes  effect  by 
delivery.  An  execution  and  registration  of  a 
deed,  and  a  delivery  of  it  to  the  register  for 
that  purpose,  do  not  vest  the  title  in  the 
grantee.  Nothing  passes  by  it  Maynard  v. 
Maynard,  10  Mass.  456  (6  Am.  Dec.  146). 
This  is  distinguishable  from  the  case  of 
Hedge  v.  Drew,  12  Pick.  141  (22  Am.  Dec. 
416),  where  the  father  proposed  to  the  daugh- 
ter to  execute  a  deed  to  her,  and  to  leave  it 
with  the  register  for  her  use,  and  she  express- 
ed her  assent  to,  and  satisfaction  with,  the 
arrangement.  She  thereby  made  the  register 
her  agent  to  receive  the  deed." 

Under  the  law  applicable  to  the  proofs  in 
the  present  suit  the  deed  from  Patrick  Mc- 
Gulre  to  Robert  McGulre  was  never  deliver- 
ed, and  through  it  grantee  acquired  no  title 
to  the  land  in  c9ntroversy.    The  trial  court 


Digitized  by 


Google 


678 


122  NORTHWESTERN  BBPOBTEB. 


(Neb. 


was  right  In  so  holding,  and  it  follows  that 
plaintiff's  suit  was  properly  dismissed.     It 
Is  therefore  unnecessary  to  discuss  the  ques- 
tion as  to  adverse  possession, 
Affirmed. 

DEAN,  J.,  having  l>een  of  counsel  below, 
not  sitting. 


VRANA  V.  VRANA  et  aL     (No.  15,747.) 
(Supreme  Court  of  Nebraalca.    Sept,  25,  1909.) 

1.  APPEAI.   and    EbBOB    (8    494*)— DlSMISSALr- 

No  Final  Obdeb  ob  jddouent  Disclosed. 
An  appeal  will  be  diamissed  ^here  tiie  rec- 
ord does  not  disclose  the  rendition  of  a  final  oc 
der  or  judgment. 

[EM.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  |  2286;  Dec.  Dig.  8  494.*] 

2.  Appkai.  and  Ebbob  (8  69*)— Decisiorb  Rk- 

VIEWABLB— FiNALirr. 

A  judgment  awarding  partition  and  appor- 
tionment of  shares  of  tlie  respective  parties  is 
not  a  final  order  or  judgment  from  wliicb  an 
appeal  may  be  prosecuted, 

[EM.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  8  357 ;   Dec.  Dig.  8  ^.'l 

8.  Appeal  and  Ebbob  (8  337*)  —  Decisions 
Reviewable— Finality. 

Where  an  appeal  in  partition  is  prosecuted 
to  this  court  before  the  trial  court  has  acted 
on  the  report  of  the  referees,  such  appeal  will 
be  dismissed. 

[EM.  Note.— For  other  cases,  see  Api>eai  and 
Error,  Cent  Dig.  8$  1877,  1878;  Dec.  Dig.  8 
837.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  CJonrt,  Saunders  Coun- 
ty ;  Evans,  Judge. 

Action  by  Anna  Vrana  against  MateJ  Vra- 
na,  Anna  Kodesch,  Barbara  Tbege,  and  oth- 
ers. From  the  decree  Anna  Kodesch  and  Bar- 
bara Thege  appeal.    Appeal  dismissed. 

John  H.  Barry  and  Franic  Dolezal,  for  ap- 
pellants. G.  W.  Simpson  and  E.  E.  Good,  for 
appellea 


DEAN,  J.  This  is  an  action  in  partition. 
In  April,  1885,  Joseph  Kodesch  died  Intestate, 
being  the  owner  of  a  quarter  section  of  land 
In  Saunders  county,  which  both  parties  agree 
was  then  worth  about  $10  an  acre.  He  left 
Burviving  him  as  bis  only  heirs  at  law  his 
widow,  Anna  Kodesch,  and  two  married 
daughters,  Anna  Vrana  and  Barbara  Thege, 
and  eight  children  of  a  deceased  daughter. 
Anna  Vrana,  who  Is  plaintiff  and  appellee. 
Joined  as  defendants  the  surviving  widow, 
Anna  Kodesch,  atad  plaintiff's  sister,  Barbara 
niege,  and  the  children  of  the  deceased  sis- 
ter, Mary  Svatos,  who  have  all  reached  their 
majority,  and  the  spouses  of  Joseph  Ko- 
desch's  children  and  grandchildren.  At  the 
time  of  his  death,  and  for  some  time  prior 
thereto,  Joseph  Kodesch  and  his  wife  both 
resided  on  the  land  as  their  home,  and  the 


widow  has  resided  there  contlnnonsly  erer 
since.  The  record  shows  that  the  plaintiff 
and  the  defendant  Barbara  Thege  in  the  trial 
court  were  each  decreed  to  be  the  owner  in 
fee  simple  of  an  undivided  one-third  part  of 
the  land  described  in  the  petition,  and  that 
the  other  defendants,  who  are  the  children  of 
the  deceased  daughter,  Mary  Svatos,  are  en- 
titled to  an  undivided  one-third  Interest  in 
the  land,  and  that  the  plaintiff  and  the  de- 
fendants are  the  owners  of  the  land  subject 
to  the  homestead  and  the  dower  interest  of 
the  defendant  Anna  Kodesch,  and  that  Anna 
Kodesch,  or  the  defendant  Barbara  Thege,  as 
her  guardian,  has  a  homestead  and  dower  in- 
terest in  the  land,  l)elng  the  life  estate  of 
Anna  Kodesch,  and  that  the  plaintiff  is  en- 
titled to  partition.  The  decree  shows  that  a 
referee  was  appointed  to  make  partition  of 
the  estate  subject  to  the -dower  and.  home- 
stead interest  of  Anna  Kodesch,  with  direc- 
tions to  report  to  the  court  To  the  above  de- 
cree the  defendants  Barbara  Thege  and  Anna 
Kodesch  each  tools  exceptions,  and  they  bring 
the  case  here  for  review.  Upon  a  careful 
examination  of  the  record,  we  conclude  it 
does  not  disclose  such  a  final  order  or  Judg- 
ment as  is  recognized  by  this  court  as  being 
sufficient  to  entitle  the  action  to  be  reviewed 
here. 

Code  Civ.  Proc.  |  682:  "A  Judgment  ren- 
dered or  final  order  made  by  the  district 
court,  may  be  reversed,  vacated,  or  modified 
by  the  Supreme  Court,  for  errors  appearing 
on  the  record."  Mills  v.  Miller,  2  Neb.  299, 
Is  an  action  In  partition  where  the  above  sec- 
tion of  the  Code  was  construed.  The  same 
section  was  again  construed  In  a  partition 
case  in  Skallberg  v.  Slsallberg  (Neb.)  121  N. 
W.  979.  In  both  cases  we  held  that,  v/here  an 
appeal  in  partition  Is  prosecuted  before  the 
trial  court  has  acted  on  the  report  of  the  ref- 
eree, such  appeal  must  be  dismissed  for  the 
reason  it  is  not  such  a  final  order  or  Judg- 
ment as  will  ratltle  an  aggrieved  party  to 
have  his  cause  reviewed.  One  reason  for  the 
rule  is  that,  if  an  appeal  Is  allowed  before  a 
final  adjudication  In  the  trial  court  of  all  the 
Issues,  another  appeal  might  be  prosecuted  aft- 
er the  case  Is  returned  and  finally  disposed 
of  on  the  merits.  The  rule  is  meritorious, 
and  we  are  disposed  to  adhere  to  it  Elvery 
question  inyolved  in  the  present  case  can  as 
well  be  heard  and  disposed  of  after  an  ad- 
judication of  all  the  issues  if  at  that  time  an 
appeal  may  be  considered  necessary  by  either 
party.  There  are  a  nnmber  of  questions  rais- 
ed In  the  present  case,  but  it  is  needless  to 
discuss  them  here  because,  no  final  order  or 
Judgment  having  been  rendered,  the  appeal  Is 
prematurely  brought 

On  the  authority  of  the  above  cases  and 
the  authorities  therein  cited,  the  appeal  here- 
in must  be,  and  it  hereby  is,  dismissed. 

REESE,  G.  J.,  not  sitting. 


•For  otlMT  eases  s«*  sam*  toplo  and  sactloa  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  data,  *  Beportar  Indozea 


Digitized  by 


Google 


Neb.) 


YOUNG  V.  KINNBT. 


679 


YOUNG  T.  KINNEY.    (No.  16,767.) 
(Supreme  CJoart  of  Nebraska.    Sept  25,  1900.) 

1.  Tbiai.  (J  66*)— Rbciptiow  o»  Evidkncb— 
Undibptttbd  Fact. 

It  is  not  error  to  ezclnde  evidence  of  a  fact 
tlmt  is  not  disputed,  and  lias  been  proved  by 
other  nncontradicted  evidence. 

[Ed.  Note.— For  otber  cases,  see  Trial,  Gent 
Dig.  I  131 :   Dec.  Dig.  {  56.*] 

2.  Affeai.  and  Ebsor  ({  970*)— Discbetion 
of  lowkb  conbt— rulino  on  coij.aibbal 
Etidehce. 

Tlie  receipt  or  rejection  of  collateral  evi- 
dence is  largely  vrithin  the  discretion  of  the  tri- 
al judge,  and  bis  rulings  in  that  regard  will 
rarely  be  disturbed. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  IS  3849-3851;  Dec  Dig.  $ 
970.*] 

3.  Evidence  (i  582*)— Evidence  at  Fobueb 
Triai.— Mode  or  PBOor— Biix  or  EIxcef- 
T10N8. 

Where  a  conrt  has  rejected  all  certificates 
attached  to  a  document  purporting  to  be  a  bill  of 
exceptions,  it  Is  not  error  to  refuse  counsel  per- 
mission to  read  therefrom  the  testimony  of  a 
witness. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Dec.  Dig.  i  582.*] 

4.  Atfeal  and  Ebrob  (§  1002*)— Review— 
QiTESTioNs  or  Fact. 

Where,  in  an  action  at  law,  the  evidence  is 
conflicting,  it  is  not  the  province  of  this  court 
to  examine  it  further  than  to  see  that  there  is 
sufficient  to  justify  the  conclusion  reached. 

[Ed.  Note.— B'or  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  S§  3935-3937;  Dec.  Dig.  S 
1002.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Kimball  Coun- 
ty; Grimes,  Judge. 

Action  by  William  T.  Young  against  Lam- 
bert C.  Kinney.  Judgment  for  plaintiff,  and 
defendant  appeals.   Affirmed. 

Wilcox  &  Halllgan,  for  appellant  J.  J. 
Kinney  and  Wright  &  Wright,  for  appellee. 

DE1A.N,  J.  This  Is  an  action  In  replevin  in- 
volving the  ownership  and  the  right  of  pos- 
«e88lon  of  a  horse  valued  in  plaintifTs  affida- 
vit at  $45.  The  court  costs  now  amount  to 
about  $600.  This  is  the  second  appeal  of 
the  case.  The  opinion  on  the  first  appeal  is 
reported  in  70  Neb.  421,  112  N.  W.  558.  In 
tlie  first  trial  the  plaintiff  recovered  verdict 
and  Judgment  On  appeal  the  case  was  re- 
versed on  two  grounds;  one  of  them  l)eing 
that  the  plaintiff  on  cross-examination  was 
aslted  if  be  had  not  testified  at  the  trial  In 
the  county  court  that  the  first  time  he  saw 
the  animal  in  question  to  remember  him  was 
when  he  was  between  two  and  three  years 
old,  and  that  be  answered  he  did  not  remem- 
ber. The  defendant  then  called  the  county 
Judge,  and  offered  to  prove  by  him  that  at  the 
trial  In  the  county  court  the  plaintiff  so  testi- 
fied. Ibe  denial  of  the  offer  was  held  to  be 
error.  Another  assignment  In  the  first  trial 
was  to  the  effect  that  the  argument  of  plaln- 
tifTs   counsel    was    somewhat  inflammatory, 


and  tended  to  prejudice  the  Jury  ae^inst  the 
defendant  and  his  witnesses,  and  this  was 
likewise  held  to  be  erroneons.  On  its  second 
trial  the  county  Judge  was  permitted  to  testi- 
fy oa  tbe  disputed  point  Finding  no  excep- 
tions In  the  record  to  the  argument  of  coun- 
sel for  defendant,  we  assume  that  he  com- 
mendably  repressed  his  emotions  in  the  par- 
ticular complained  of  In  tbe  first  trial.  Tbe 
second  trial  resulted  as  before,  and  the  de- 
fendant again  appeals.  He  assigns  20  grounds 
of  error.  In  the  typewritten  brief  of  errors 
there  are  many  assignments,  but  In  the 
printed  brief  complaint  Is  only  made  con- 
cerning certain  rulings  relative  to  tbe  evi- 
dence. We  have  examined  the  record  care- 
fully, and  conclude  there  Is  no  reversible  er- 
ror idiown. 

As  shown  in  the  former  opinion,  the  identi- 
ty of  the  horse  in  question  ii  tbe  principal 
matter  in  controversy.  On  this  point  many 
witnesses  were  examined  on  both  sides,  and 
the  testimony  was  conflicting,  biK  there  is  an 
abundance  of  evidence  to  support  the  verdict 
of  the  Jury,  and  under  the  rule  long  establish- 
ed and  adhered  to  by  this  court  we  are  not 
disposed  to  disturb  it  In  Holbert  v.  Cbllvers, 
58  Neb.  665,  70  N.  W.  623,  speaking  for  tbe 
court,  Sullivan,  J.,  says :  "Where  the  evidence 
is  conflicting,  it  is  not  the  province  of  this 
court  to  examine  it  further  than  to  see  that 
there  is  sufficient  to  Justify  the  conclusion 
reached."  Upton  v.  Levy,  39  Neb.  331,  58  N. 
W.  06.  The  defendant  Introduced  many  wit- 
nesses to  prove  that  the  horse  in  question, 
when  a  colt,  was  branded  by  him  with  a  hatch- 
et brand  on  the  Jaw,  and  that  it  wap  to 
some  extent  discernible  ever  afterwards.  Al- 
most if  not  quite  an  equal  number  of  witness- 
es testified  on  the  part  of  plaintiff  that  no 
such  brand  could  be  discovered.  The  rights 
of  the  litigants  turn  to  some  extent  upon  the 
existence  or  absence  of  defendant's  hatchet 
brand  upon  the  horse  when  it  was  a  colt 
Several  witnesses  who  were  Jurors  at  the 
first  trial  testified  that  by  permission  of  court 
at  the  former  trial  the  horse  was  examined 
by  them,  being  thrown  for  that  purpose,  and 
bis  Jaw  closely  examined  and  the  hair  re- 
moved, and  no  such  brand  was  discovered. 
On  this  point  the  testimony  seems  to  prepon- 
derate In  favor  of  the  plaintiff.  At  the  last 
trial,  on  request  of  defendant,  the  Jury  were 
by  the  court  permitted  to  view  the  animal, 
but  when  leave  was  asked  by  the  Jury  to  clip 
the  hair  at  the  place  where  tbe  defendant 
said  the  horse  was  branded,  in' order  that  a 
closer  inspection  might  be  made,  the  defend- 
ant interposed  an  objection,  which  was  over- 
ruled and  the  request  of  the  Jury  granted. 

During  plaintiff's  cross-examination  he  de- 
nied testifying  upon  the  former  trial  to  cer- 
tain facts,  and  to  contradict  him  defendant's 
counsel  offered  part  of  the  bill  of  exceptions 
of  the  testimony  given  on  that  trial.  This 
testimony  was  excluded,  and  defendant  as- 


•Vsr  otliar  esMs  SM  sun*  topic  and  sacUon  NUMBER  1b  Dao.  *  Am.  Digs.  U07  to  data,  ft  Reportw  Index** 


Digitized  by 


Google 


680 


122  NORTHWESTERN  REPORTER. 


(Neb. 


signs  error.  Preceding  the  offer  of  the  testi- 
mony counsel  offered  the  certificate  of  the 
reporter,  the  filing  marks  on  the  bill,  the 
certificate  of  the  trial  judge,  and  the  certif- 
icate of  the  clerk  of  the  district  court,  which 
stated,  among  other  things,  that  the  docu- 
ment was  the  original  bill  of  exceptions  In 
that  case.  The  court  excluded  the  offered 
evidence  on  the  ground  that  it  had  not  been 
identified  In  the  manner  provided  by  law. 
Whether  the  court  was  right  or  wrong  we 
need  not  determine  because  the  printed  brief 
makes  no  complaint  concerning  this  ruling. 
Brown  v.  Dunn,  38  Neb.  52,  56  N.  W.  703; 
Peaks  V.  Lord,  42  Neb.  15,  60  N.  W.  349; 
Madsen  v.  State,  44  Neb.  631,  62  N.  W.  1081 ; 
Blodgett  V.  McMurtry,  54  Neb.  71,  74  N.  W. 
392 ;  Gullck  v.  Webb,  41  Neb.  706,  60  N.  W. 
13,  43  Am.  St.  Rep.  720;  Mandell  v.  Weldin, 
69  Neb.  699,  82  N.  W.  6.  With  the  certificates 
excluded,  strictly  speaking,  there  was  not 
sufilcient  foundation  laid  for  the  Introduction 
of  the  evidence  offered,  and  hence  there  was 
no  error  in  excluding  the  evidence.  We  have 
not  overlooked  the  stipulation  of  counsel,  but 
it  did  not  go  to  this  evidence,  and,  again  fol- 
lowing closely  the  rules  of  evidence,  we  are 
constrained  to  hold  that  It  was  properly  ex- 
cluded. But,  In  any  event,  the  refusal  of  the 
of  the  trial  court  to  admit  the  testimony 
thus  offered  by  the  defendant  did  not  con- 
clude his  right  in  this  respect  The  record 
shows  the  presence  of  the  jurors  at  the  form- 
er trial  as  witnesses  at  the  second  trial,  and 
the  impeaching  testimony,  if  true,  might  have 
been  established  by  them.  The  defendant  was 
not  limited  in  this  respect  to  the  record  testi- 
mony offered  by  him  and  denied  by  the  court. 

The  defendant  brought  to  the  courthouse 
other  horses  owned  by  him,  and  requested 
that  the  jurors  examine  the  brands  upon 
those  horses,  to  the  end  that  a  comparison 
might  be  made  of  the  disputed  mark  or  brand 
with  the  undisputed  ones.  If  the  court  was 
satisfied  that  the  circumstances  surrounding 
the  branding  of  the  disputed  horse.  If  it 
ever  was  branded  with  the  hatchet  brand, 
and  those  connected  with  the  marking  of  oth- 
er horses  were  so  nearly  alike  that  the  re- 
sults ought  to  be  identical  or  nearly  so,  in 
its  discretion  it  might  receive  the  evidence. 
It  is  largely  in  the  nature  of  experimental 
evidence,  and  is  relevant  Section  1209, 
Moore  on  Facts;  section  400,  Wlgmore  on 
Evidence;  Davis  v.  State,  51  Neb.  301,  70 
N.  W.  984.  The  ruling  of  a  trial  court  In  the 
exercise  of  the  discretion  confided  to  it  in 
rejecting  or  receiving  collateral  evidence, 
unless  abused,  will  rarely  be  overruled  in 
this  court  Pitch  v.  Martin  (Nob.)  122  N. 
W.  HO.  For  the  same  rensons  the  fourth  and 
sixth  assignments  of  error  argued  in  the 
briefs  are  overruled. 

The  complaint  that  the  court  erred  in  re- 
fusing to  jiennit  dofeiidnnt  to  testify  In  an- 
swer to  certain  questions  that  he  was  the 


owner  of  the  hatchet  brand  is  without  merit 
The  fact  is  conceded  all  through  the  case. 
It  is  undisputed,  and  was  specifically  testi- 
fied to  by  defendant  In  answer  to  other  ques- 
tions. 

The  court  with  propriety  might  have  re- 
ceived defendant's  testimony  concerning  the 
effect  of  branding  a  horse  affiicted  with  dis- 
temper; that  is,  that  the  brand  would  like- 
ly blotch,  but  the  error,  if  any,  In  rejecti.!g 
that  evidence,  is  without  prejudice  in  the 
present  case.  The  brand,  if  brand  it  was, 
was  blotched  beyond  question. 

We  feel  impelled  in  this  case  to  affirm  the 
judgment  because  plaintiff  has  twice  pre- 
vailed on  a  question  of  fact  The  jurors  In 
each  instance  inspected  the  horse  In  question, 
and  doubtless  a  majority  of  them  had  as 
much  expert  knowledge  concerning  the  ap- 
pearance of  brands  and  wire  cuts  on  horses, 
and  have  as  much  ability  to  decipher  the 
disputed  mark  as  any  expert  produced  on  the 
stand.  That  most  Important  evidence  from 
its  nature  was  not  and  could  not  have  been 
included  in  the  bill  of  exceptions,  and  we 
feel  that  none  but  the  most  glaring  errors 
ought  to  work  a  reversal  of  the  judgment  of 
the  district  court  The  testimony  is  doma- 
what  conflicting  throughout,  but  the  law  has 
imposed  upon  the  jury,  as  triers  of  fact,  the 
task  of  determining  the  credibility  that  is  to 
be  accorded  to  the  witnesses  and  the  weight 
that  is  to  be  given  to  the  evidence. 

The  record  shows  that  the  trial  court  was 
liberal  in  the  range  of  Inquiry  that  was  per- 
mitted to  both  sides.  The  case  has  been 
long  drawn  out  and  thoroughly  sifted.  The 
county  judge  testifies  that  It  was  pending  in 
his  court  "pretty  near  all  summer."  From 
the  record  before  us  we  conclude  that  suffi- 
cient of  the  material  facts  with  reference  to 
the  Identity,  ownership,  and  right  to  posses- 
sion of  the  animal  in  question  have  been  pre- 
sented by  the  plaintiff  to  sustain  the  verdict, 
and  that  in  the  particulars  complained  of 
the  trial  court  committed  no  reversible  er- 
ror. 

The  judgment  of  the  district  court  there- 
fore must  be,  and  it  hereby  is,  In  all  things 
aflirmed. 

REESE,  C.  J.,  absent,  and  not  sitting. 


ARNOLD  V.  DOWD  et  al.     (No.  15,766.) 
(Supreme  Court  of  Nebraska.     Sept  25,  1909.) 

Contracts  (S  270*)— Rescission— Right  to- 
Time  OF  Exercise. 

The  riffht  to  rescind  a  contract  for  fraud 

must  be  promptly  exercised  upon  discovery  of 

the  jsround  tlierefor. 
[E<1.   Note.- For  other  cases,   see  Contracts, 

Cent.  Dift.  §  118J);    I>ec.  Dig.  §  270.*] 
(Syllabns  by  the  Court) 

Appeal  from  District  Court,  Harlan  Coun- 
ty; Adams,  Judge. 


•For  other  cases  «ee  same  topic  and  section  NUMBER  in  Dec.  &  Am.  Dlga.  1907  to  data,  *  Reporter  Indexes 


Digitized  by 


Google 


Neb^ 


GROSS  V.  JOKES. 


681 


A.ctVon  by  Edwin  B.  Arnold  against  Albert 
W.  Dowd  and  others.  Judgment  for  defend- 
ants, and  plaintiff  appeals.    Affirmed. 

John  Everson,  for  appellant  J.  !■.  McCnls- 
ton  and  O.  H.  Scott,  for  appellees. 

ROSE,  J.  Plaintiff  agreed  with  defendants 
to  exchange  his  320-acre  farm  in  Harlan 
coanty  for  their  store  and  stock  of  general 
merchandise  at  Bubbeli.  Before  the  bargain 
was  made,  defendants  viewed  plaintiff's  land, 
and  plaintiff  inspected  the  goods  In  defend- 
ants' store  and  aided  them  In  making  an  in- 
Toice  of  their  stock.  Later  he  deeded  his  farm 
to  them,  took  possession  of  their  store,  op- 
erated it  as  his  own  for  about  five  months, 
sold  the  stock  on  hand,  brought  this  action  to 
rescind  for  fraud  the  contract  under  which 
be  parted  with  his  farm,  and  prayed  to  hare 
his  title  thereto  restored.  The  district  court 
found  the  issues  in  favor  of  defendants,  and 
dismissed  the  suit.    Plaintiff  appeals. 

The  fraud  denounced  by  plaintiff  consisted 
chiefly  in  the  making  of  an  Invoice  through 
which  defendants  are  charged  with  misrep- 
resenting the  quality,  quantity,  and  value 
of  their  stock  of  merchandise.  Within  a 
month  or  two  after  plaintiff  took  possession 
of  the  store,  according  to  his  own  testimony, 
he  learned  through  agents  of  wholesalers 
that  the  invoice  was  wrong.  Afterward  he 
treated  the  store  as  his  own,  and  took  from 
the  stock  for  his  own  use  groceries  and  dry 
goods  without  making  any  account  thereof. 
After  such  knowledge  of  the  alleged  fraud, 
he  managed  the  business  for  two  or  three 
months,  and  finally  sold  the  entire  stock.  It 
is  elementary  that  be  la  not  entitled  to  re- 
scission under  such  circumstances.  The  right 
to  rescind  a  contract  for  fraud  must  be 
promptly  exercised  upon  discovery  of  the 
ground  therefor.  By  treating  the  goods  as 
his  own,  after  learning  of  the  alleged  fraud, 
he  ratified  the  contract  of  which  he  com- 
plains. It  was  too  late  to  rescind.  Pollock 
V.  Smith,  49  Neb.  864,  69  N.  W.  312 ;  Ameri- 
can Building  &  Loan  Ass'n  ▼.  Ralnbolt,  48 
Neb.  434,  67  N.  W.  493;  Gallagher  v.  O'Neill, 
78  Xeb.  671,  111  N.  W.  582.- 

The  case  was  properly  dismissed,  and  the 
Judgment  below  Is  affirmed. 


nOLZ  V.  BUHLING  et  al.     (No.  15,583.) 
(Supreme  Court  of  Nebraska.     Sept.  25,  1909.) 

On  motion  for  rehenring.  Motion  overruled, 
but  former  opinion  modified. 

For  former  opinion,  see  84  Neb.  211,  120  N. 
W.  954. 

M.  B.  Davis  and  Rinaker  &  Kidd,  for  appel- 
lants. W.  H.  Ashby  and  Kelligar  &  Fei'neau, 
for  appellee. 

PER  CURIAM.  Upon  a  consideration  of  the 
briefs  and  arguments  submitted  on  tlie  applica- 
tion for  R  rehearinK.  said  motion  is  overruled ; 
but  the  opinion  and  judgment  are  modified,  so 
that  the  case  is  reversed  generally  and  remanded, 
without  directions,  for  further  proceedings. 


GROSS  et  al.  v.  JONES.    (No.  15.'46.) 
(Supreme  Court  of  Nebraska.    Sept.  25,  1909.) 

1.  EuiNE.NT  DouAiN   (g   323*)— Flowaob  or 
Lands— Right  Acquibed. 

A  petitioner  in  ad  quod  damnum  proceed- 
ings who  owns  the  land  on  each  side  of  a  water 
course  at  the  point  where  he  proposes  to  con- 
struct and  maintain  a  dam  does  not  by  a  judg- 
ment in  his  favor  and  payment  of  the  damages 
assessed  acquire  the  right  in  perpetuity  to  How 
the  lands  of  upper  riparian  owners,  but  secures 
a  privilege  which  may  be  lost  by  abandonment 
or  nonuser  for  an  unreasonable  lengtli  of  time. 

[Ed.  Note. — Ifor  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  {  800;  Dec  Dig.  i  323.*] 

2.  Watebs   and   Wateb   Coubses   (§  104)*— 
Flowage  of  Lands— Pbescbiption. 

A  miller  may  also  by  uninterrupted,  con- 
tinuous, and  adverse  possession  and  user  obtain 
said  right  of  Sowage. 

[Ed.  Note.— For  other  cases,  see  Waters  and 
Water  Oorrses,  Cent  Dig.  IS  210-212;  Dec. 
Dig.  §  164.*] 

3.  Watehs  and   Water   Courses   (J   164*)— 
Flowage  of  Lands— Pbescbiption. 

If  the  exercise  of  that  privilege  is  com- 
menced by  virtue  of  ad  quod  damnum  proceed- 
ings, possession  and  use  alone,  no  matter  bow 
long  continued,  will  not  vest  the  miller  with  any 
title,  privilege,  or  right,  other  than  those  ac- 
quired in  said  proceedings. 

[Ed.  Note.— For  other  cases,  see  Wateia.  and 
Water  Courses,  Cent  Dig.  {$  210-212;  Dec. 
Dig.  §  1G4.*J 

4.  Eminekt    Domain    (8    323*)  — Right    of 
Flowage- Abandonment. 

In  a  contest  between  upper  riparian  owners 
and  the  proprietor  of  a  mill  site  over  the  latter's 
right  to  reconstruct  a  dam  that  has  been  washed 
away,  the  question  of  whether  or  not  there  has 
been  a  nonuser  of  a  privilege  acquired  by  con- 
demnation proceedings  for  such  a  length  of  time 
as  to  amount  to  an  abandonment  of  the  right  of 
flowage  is  one  of  fact  to  be  determined  in  each 
particular  case  upon  the  evidence  before  the 
court. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  |  800;   Dec  Dig.  {  323.*] 

5.  Eminent    Domain    (I    328*)  — Right    of 
Flowagb— Abandonment. 

In  such  an  action  the  district  court  was 
justified  in  finding  that  the  owner  of  the  mill 
site  had  abandoned  his  right  to  flow  the  lands 
of  the  upper  riparian  owners  for  the  purpose  of 
maintaining  a  public  gristmill,  where  it  appear- 
ed from  the  evidence  that  the  principal  mill  had 
been  dismantled,  and,  with  its  machinery,  re- 
moved from  the  mill  site  ten  years  next  preced- 
ing the  institution  of  the  suit ;  that  for  eight 
of  those  years  an  occasional  grist  of  a  few  bush- 
els of  bucliwheat,  rye,  com,  or  oats  had  been 
ground  in  an  ancient  building  on  the  premises; 
that  the  public  was  not  served  by  the  operation 
of  said  mill,  which  for  months  at  a  time  was  not 
used  at  all ;  that  the  owner  of  the  mill  site 
maintained  the  millpond  principally  to  procure 
ice  therefrom ;  and  that  two  years  before  the 
commencement  of  the  suit  tbe  dam  was  washed 
away,  and  no  steps  whatever  had  been  taken 
during  that  time  to  reconstruct  it. 

(Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Ont  Dig.  i  8C0 ;    Dec  Dig.  §  323.*] 

6.  Watebs  and  Wateb  Courses  (S  177*)- Re- 
construction OF  Dam— Injunction. 

It  was  error,  however,  for  the  court  to  ab- 
solutely enjoin  the  owner  of  the  mill  site  from 
constructing  said  dam,  but  the  injunction  should 
continue  only  until  by  ad  quod  damnum  pro- 
ceedings and  the  payment  or  dnmaces  assessod 


•For  other  eaua  cee  same  tople  and  lecUon  NUUBBR  In  Dec.  *  Am.  Diss.  1907  to  date,  &  Reporter  Indeiei 


Digitized  by 


Google 


«82 


122  NORTHWESTBRN  BBPDBTlOB. 


(Nek 


therein  he  had  eatablished  hb  right  to  constract 
and  maintain  the  dam. 

[Ed.  Note.— For  other  casea,  see  Waters  and 
Water  Courses,  Cent  Dig.  <{  260-204;  Dec. 
Dig.  i  177.*J 

(Syllabas  by  the  Court) 

Appeal  from  District  Court,  Saunders 
County ;  Evans,  Judge. 

Action  by  Franlc  Gross  and  others  against 
Stephen  H.  Jones.  Judgment  for  plaintiffs, 
and  defendant  appeals.  Modified '  and  af- 
firmed. 

J.  H.  Barry,  for  appellant  Simpson  & 
Good,  for  appellees. 

ROOT,  J.  In  1871  the  then  owners  of  a 
tract  of  land  crossed  by  the  Wahoo  creels  by 
ad  quod  damnum  proceedings  In  the  district 
court  of  Saunders  county  acquired  the  right 
to  flow  the  lands  of  upper  proprietors  so  far 
as  might  be  necessary  In  constructing  and 
'maintaining  a  dam  20  feet  In  height  across 
said  stream  and  upon  the  land  of  the  peti- 
tioners. A  dam  and  gristmill  were  construct- 
ed, and  the  mill  thereafter  operated.  In 
1887  a  flouring  mill  with  modern  appliances 
was  built  upon  said  mill  site,  and  subsequent- 
ly operated ;  the  original  mill  being  used  for 
grinding  com  and  oats.  In  1893  the  last 
mill  constructed  was  dismantled,  and,  -  with 
the  machinery,  removed.  Subsequently  de- 
fendant became  the  owner  of  the  mill  site 
and  the  mill  first  constructed.  At.  that  time 
the  dam  had  been  washed  aw-ay,  but  was 
rebuilt  by  defendant  about  18  months  after 
bis  purchase.  Thereafter  defendant  occa- 
sionally operated  the  mill  on  a  very  small 
scale,  and  cut  Ice  from  the  millpond  for  his 
Ice  business  In  Wahoo.  In  May,  1903,  the 
dam  was  again  washed  away,  and  In  May  or 
Jnne  of  1905  defendant  was  preparing  to  re- 
construct It,  when  this  action  for  an  Injunc- 
tion was  Instituted  by  the  upper  riparian 
owners.  The  court  found  generally  for  plain- 
tiffs and  perpetually  enjoined  defendant  from 
building,  constructing,  and  maintaining  any 
-dam  across  the  Wahoo  creek  upon  his  said 
land,  and  be  appeals. 

1.  While  the  condemnation,  proceedings 
were  regular,  they  did  not  vest  defendant  or 
his  grantors  with  the  right  of  flowage  In  per- 
petuity, but  merely  the  privilege  of  exercis- 
ing that  power  until  the  easement  was  extin- 
guished In  some  lawful  manner.  Pratt  v. 
Brown,  3  Wis.  603;  Curtlss  v.  Smith,  85 
Conn.  156;  French  v.  Bralntree  Mfg.  Co.,  23 
Pick.  (Mass.)  216;  Nosser  v.  Seeley,  10  Neb. 
460,  6  N.  W.  755.  A  right  of  flowage  thus 
acquired  may  be  lost  by  abandonment  or  non- 
user  for  an  unreasonable  length  of  time. 
French  v.  Bralntree  Mfg.  Co.,  supra.  Wheth- 
er the  nonuser  has  continued  for  an  imreas- 
onable  period  In  a  particular  case  will  be  as- 
certained from  the  surrounding  facts  and 
circumstances.  No  arbitrary  rule  can  safely 
be  followed.    If  the  right  of  flowage  has  been 


acquired  by  deed  or  adverse  «iJoyment,  then 
it  may  be  conceded  that  nonuser  for  leas  than 
10  years  will  not  be  held  an  unreasonable  de- 
lay. Agnew  V.  City  of  Pawnee  City,  79  Neb. 
603, 113  N.  W.  23&  But  a  right  or  easement 
by  adverse  enjoyment  will  not  be  created  un- 
less the  use  has  been  adverse  to  the  owner 
of  the  servient  estate  for  ten  continuous 
years.  Johnson  v.  Sherman  County  I.,  W.  P. 
&  X.  Co.,  63  Neb.  510,  88  N.  W.  676.  If  the 
person  enjoying  the  right  or  easement  ac- 
quires it  by  condemnation  proceedings,  his 
possession  in  the  first  Instance  is  in  conform- 
ity with  the  terms  of  the  judgment,  and  a 
continuation  of  that  possession  will  not  en- 
large his  estate,  unless  he  Intends  thereby  to 
acquire  a  greater  Interest  and  luowledge  of 
that  intent  is  brought  home  to  the  owner 
of  the  servient  estate.  A  defendant  who 
pleads  and  proves  possession  by  virtue  of  a 
legal  title  ought  not  to  be  considered  an  ad- 
verse occupant  Tinkham  v.  Arnold,  3  Me. 
120.  There  is  not  a  sclntiila  of  evidence  that 
defendant,  or  any  of  his  grantors  ever,  prior 
to  the  filing  of  the  answer  in  this  case,  claim- 
ed to  have  other  or  greater  rights  in  the 
premises  than  vested  in  Ray  and  Flor,  the 
petitioners  in  condemnation.  Defendant  has 
never  executed  a  specific  release  of  bis  right 
of  flowage  nor  indicated  by  any  statement 
that  he  has  abandwed  it,  and  there  remains 
but  one  question  for  consideration  upon  this 
branch  of  the  case,  and  that  is  whether  the 
facts  taken  altogether  will  justify  a  finding 
of  such  abandonment 

Defendant's  grantors  by  the  exercise  of 
the  power  of  eminent  domain  were  granted 
a  servitude  upon  the  lands  now  owned  by 
plaintiffs,  to  the  end  that  a  public  gristmill 
operated  by  water  power  might  be  construct- 
ed and  maintained.  In  the  early  history  of 
this  state.  In  common  with  like  periods  in 
the  experience  of  sister  commonwealths,  the 
law  was  construed  liberally  in  the  Interests 
of  the  millers  who  manufactured  foodstuffs 
for  the  community.  With  the  evolution  of 
transportation  and  steam  power,  the  reasons 
underlying  thoq,e  decisions  have  largely  van- 
ished. Speculators  who  cling  to  the  old  mill 
sites  and  rickety,  moss-covered  dams  to  the 
detriment  of  acres  of  valuable,  fertile  land, 
made  valueless  by  the  overflow  of  water  that 
has  ceased  to  furnish  power  for  the  benefit 
of  a  community,  must  In  good  faith  keep 
their  franchises  alive  to  hold  the  upper  ri- 
parian lands  in  servitude.  The  payment  of 
damages  assessed  for  the  benefit  of  the  up- 
per proprietors  is  not  the  sole  consideration 
upon  which  the  miller  receives  the  right  of 
flowage,  but  there  is  the  further  considera- 
tion that  he  shall  construct,  equip,  and  oit- 
erate  a  gristmill  for  the  benefit  of  the  pub- 
lic. If  be  does  not,  the  consideration  for  his 
grant  fails,  and  the  upper  proprietors  ought 
not  to  hold  their  lands  in  bondage  to  him. 

The  evidence  proves   to  our  satisfaction 


•For  other  caMa  mo  Mune  topic  and  Mctloa  NUMBER  Is  Dec.  ft  Am.  Dls«.  1907  to  data,  ft  Raportar  Indozaa 


Digitized  by  VjOOQ  l€ 


Neb.) 


JOHNSON  T.  PETERSON. 


683 


that  defendant's  real  pnrpose  to  maintaining 
the  mUlpond  has  been  to  furnish  an  Ice  field 
from  whence  he  could  procure  ice  for  his 
trade.  Defendant  since  be  became  the  owner 
of  the  mill,  and  preceding  the  destruction 
of  the  dam  In  1903,  has  not  operated  the  mill 
■with  any  regularity,  but,  on  the  contrary, 
during  long  and  Infrequent  intervals  of  time 
has  operated  not  to  exceed  three  hours  at 
a  time.  Months  would  pass  during  which 
the  mill  was  not  operated  at  all.  Witnesses 
who  frequently  traveled  the  highway  adja* 
'Cent  to  the  property  testified  that  they  never 
aaw  It  in  operation.  One  witness  who  pass- 
ed the  mill  six  days  In  the  week  for  years 
only  saw  a  team  at  the  mill  on  two  occa- 
elons.  The  Infrequent  grists  ground  consist- 
ed generally  of  but  a  few  busbela  of  rye, 
bnckwheat,  com,  or  oats.  The  public  did 
Dot  patronize  the  mUI.  It  Is  poorly  equipped 
for  practical  work,  and  for  years  has  ceas- 
ed to  be  of  any  ben^t  to  the  public  or  the 
community  In  which  it  is  situated.  Taking 
all  of  these  facts  Into  consideration,  and  the 
further  fact  that  defendant  remained  pas- 
sive for  over  two  years  subsequent  to  the 
loss  of  the  dam  in  1903,  we  are  of  opinion 
that  the  trial  judge  was  Justified  In  finding 
that  defendant  had  abandoned  the  rights  ac- 
ijulred  by  him  from  his  grantors  to  overfiow 
plaintiffs'  land.  The  statute  in  force  when 
this  action  was  commenced  (section  15,  c. 
157.  Comp.  St  190^  provided  that  if  a  miller 
who  has  acquired  a  mill  site  by  condemna- 
tion does  not  commence  to  build  his  mill  or 
dam  within  a  year  of  the  final  Judgment,  or 
within  two  years  does  not  commence  to  re- 
construct his  mill  or  dam,  if  either  structure 
is  destroyed,  the  mill  site  will  revert  to  the 
original  proprietor,  and  thereby  indicates  the 
thai  legislative  idea  of  a  reasonable  time 
within  which  a  miller  must  act  to  preserve 
his  privil^es  acquired  by  condemnation  pro- 
ceedings. Defendant  Is  not  within  the  sav- 
ing clause  of  the  cited  statute,  nor  the  more 
liberal  limits  of  the  amendment  thereto. 
Chapter  101,  p.  496,  Laws  Neb.  1905.  The 
statute  does  not  in  terms  apply  to  the  case 
at  bar,  but  it  warrants  a  court  in  exacting 
the  same  degree  of  diligence  on  the  part  of 
the  individual  owning  the  mill  site  if  be  as- 
serts a  right  to  flow  the  land  of  upper  ri- 
parian owners. 

2.  The  Injunction  Is  absolute,  forbidding 
the  reconstruction  of  a  dam  upon  defend- 
ant's land.  Defendant  owns  a  mill  antiquat- 
ed, but  still  constructed  for  the  milling  trade. 
He  also  owns  the  land  on  both  sides  of  the 
creek,  where  he  proi)08es,  and  alleges  that 
he  desires,  to  construct  a  dam.  He  has  a 
right  to  proceed  under  the  statute  to  estab- 
lish his  right  to  construct  and  maintain  the 
dam  and  operate  the  mill. 

The  Judgment  of  the  district  (iourt,  there- 
tace.  Is  modified  so  as  to  enjoin  defendant 
from  constructing  or  maintaining  a  dam  up- 


on the  land  described  In  the  petition  until 
and  unless  he  shall  have  again  acquired  the 
right  so  to  do  by  ad  quod  damnum  proceed- 
ings In  the  district  court  of  Saunders  county, 
and,  as  thus  modified,  the  Judgment  is  af- 
firmed. 

REESE,  C.  J.,  absent  and  not  sitting. 


JOHNSON  V.  PETERSON.     (No.  15,751.) 
(Supreme  Court  of  Nebraska.     Sept.  25,  1909.) 

1.  EviNXNT  Domain   (§   69*)— Nbcessitt  or 
Patment  Befobe  Taking. 

Private  property  In  Nebraska  cannot  be 
taken  or  damaged  for  public  use  without  jnst 
compensation  therefor,  and  this  rule  applies  to 
public  authorities  exercising  the  right  of  emi- 
nent domain  in  establishing  and  opening  public 
highways. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  |  172;   Dec.  Dig.  {  69.*] 

2.  Eminent  Domain  (|  275*)— NECESsrrr  or 
Payment  Beh-obe  Taking — ^Injunction. 

If  a  road  overseer  attempts  to  enter  upon 
the  real  estate  of  an  individual  to  prepare  a 
highway  thereon  for  the  use  of  the  public,  and 
the  owner's  damages  for  the  appropriation  of 
said  land  for  that  pnrpose  have  not  been  there- 
tofore ascertained,  and  payment  made  or  pro- 
vided therefor,  the  landowner  is  entitled  to  an 
injnnction  restraining  the  overseer  until  such 
damages  have  been  ascertained  and  paid,  or  pay- 
ment provided  for  in  accordance  with  law. 

[Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  {  773;    Dec.  Dig.  i  275.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court  Valley  Coun- 
ty;  Paul,  Judga 

Action  by  Robert  Johnson  against  Fred 
Peterson,  overseer  of  Road  District  No.  28, 
Valley  county.  Judgment  for  plaintiff,  and 
defendant  appeals.    Afi3rmed. 

H.  B.  Olson  and  Claude  A.  Davis,  for  ap- 
pellant Clements  Bros,  and  O.  A.  Abbott 
for  appellee. 


ROOT,  J.  This  Is  an  appeal  from  a  Judg- 
ment of  the  district  court  of  Valley  county 
restraining  the.  defendant  who  is  a  road 
overseer  In  said  county,  from  entering  upon 
plaintiff's  land  or  opening  a  public  highway 
along  and  upon  the  section  line  between  the 
N.  E.  %  of  secUon  26,  and  the  N.  W.  %  of 
section  25,  in  township  17,  range  14,  until 
such  a  time  as  plaintiff's  damages  shall  have 
been  ascertained  in  the  manner  provided  by 
law  for  the  taking  of  private  proi)erty  for 
road  purposes.    Defendant  appeals. 

1.  Plaintiff  asks  that  the  appeal  be  dis- 
missed because  of  an  alleged  settlement  of 
the  matters  in  litigation.  We  are  satisfied 
that  the  Judgment  of  the  district  court  is 
right,  and  shall  not  sustain  the  motion,  but 
decide  the  case  upon  the  merits  without  de- 
termming  the  legal  effect  of  the  action  of 
the  county  commissioners  of  said  county  in 


•ror  oUmt  casM  h«  sun*  topic  and  section  NUMBER  In  Deo.  ft  Am.  Digi.  U07  to  data,  ft  Raportar  Indexes 


Digitized  by 


Google 


684 


122  NORTHWESTERN  REPORTER. 


(Nek 


settling  with  plaintiff  or  their  alleged  recon- 
sideration of  that  settlement. 

2.  A  motion  for  a  new  trial  was  not  filed 
In  the  district  court,  and  we  can  only  con- 
sider whether  the  findings  and  Judgment  are 
contrary  to  or  supported  by  the  evidence 
and  the  law.  Kemp  t.  Kemp  (Neb.)  118  N. 
W.  1069.  In  1884  a  petition  was  filed  with 
the  then  county  clerk  of  said  county  praying 
for  the  location  of  a  public  road,  which,  if 
established,  would  Include  the  land  In  dis- 
pute and  other  lands.  For  the  purposes  of 
this  case,  we  shall  assume  that  the  petition 
was  sufficient,  and  that  due  notice  was  given 
of  the  time  and  place,  when  and  where  the 
county  commissioners  would  act  thereon. 
The  evidence  of  the  proceedings  of  the  coun- 
ty commissioners  is  meager,  but  it  sufficient- 
ly appears  that  condemnation  proceedings 
were  not  had  to  ascertain  the  damages  that 
would  accrue  to  the  then  owners  of  the  land 
In  controversy,  which  now  is  the  property  of 
plaintiff.  The  evidence  establishes  that,  with 
the  exception  of  a  few  yards  in  length  north 
from  the  southwest  comer  of  plaintiff's  land, 
none  of  the  real  estate  in  dlsputo  was  ever 
occupied  or  used  for  road  purposes,  and  the 
part  thus  traveled  has  been  abandoned  for 
many  years.  There  is  no  evidence  what- 
ever that  any  of  said  land  was  woiiied  by 
the  public  authorities  or  dedicated  by  the 
owner  thereof  for  road  purposes.  The  pub- 
lic authorities  in  Nebraska  cannot  take  pos 
session  of  land  and  use  it  for  a  highway 
without  assessing  and  paying  damages  to 
the  owner  therefor  or  providing  for  such 
payment  Klme  v.  Cass  County,  71  Neb.  677, 
678,  99  N.  W.  548,  101  N.  W.  2.  The  burden 
rests  upon  the  anthorities  in  such  cases  to 
not  only  initiate  condemnation  proceedings, 
but  perform  all  necessary  acts  to  ascertain 
the  damages  above  referred  to,  unless  the 
owner  by  some  unequivocal  act  shall  have 
waived  his  right  to  compensation.  Klme  v. 
Cass  County,  71  Neb.  681,  101  N.  W.  2;  Hog- 
sett  V.  Harlan  County,  4  Neb.  (Unof.)  310, 
97  N.  W.  316;  Hodges  v.  Board  of  Super- 
visors of  Seward  County,  49  Neb.  606,  68 
N.  W.  1027 ;  Propst  v.  Cass  County,  61  Neb. 
736,  71  N.  W.  748 ;  Lewis  7.  City  of  Lincoln, 
65  Neb.  1,  75  N.  W.  154.  There  is  no  evi- 
dence that  any  owner  of  said  land  ever 
waived  the  right  to  compensation  for  its 
appropriation  to  public  use,  and  defendant 
upon  whom  the  burden  rested  did  not  prove 
an  easement  In  the  public  by  condemnation 
or  otherwise.  Plaintiff  In  1884  did  not  own 
part  of  the  land  now  In  controversy,  but 
that  fact  does  not  prevent  him  from  de- 
manding compensation  for  the  land  now 
claimed  by  the  public  authorities  as  a  road, 
which  they  have  neither  paid  nor  provided 
for.  Hogsett  v.  Harlan  County,  supra ;  Ash- 
Ipv  V.  Burt  County,  73  Neb.  159,  102  N.  W, 
272. 


The  argument  that  plaintiff  Is  estopped 
from  claiming  damages  because  he  appeared 
before  the  commissioners  in  1884  and  signed 
a  stipulation  with  relation  to  a  part  of  the 
proposed  road  about  two  miles  distant  from 
the  land  In  controversy  is  not  convincing, 
and  will  not  avail  to  reverse  the  Judgment 
of  the  district  court 

The  evidence  amply  sustains  the  findings 
of  the  district  court,  and  the  Judgment  is 
not  contrary  to,  but  In  conformity  wltti,  law, 
and  is  affirmed. 

REESE,  a  J.,  absent  and  not  sltUng. 


WESTLAKE  v.  MURPHX.    (No.  15,746.) 
(Supreme  Court  of  Nebraska.    Sept  25,  1909.) 

1.  Masteb  and  Sebvawt  (i  196*)— Injubt  to 
Servant— "Fellow  Sebvant." 

Workmen  engaged  in  tlie  ordinary  occupa- 
tion of  unloading  a  railroad  car  under  the  di- 
rection of  B  common  overseer  are  fellow  serv- 
ants within  the  rule  announced  in  Chicago,  B. 
&  Q.  R.  Co.  V.  Kellogg.  54  Neb.  127,  74  N.  W. 
454 ;  and  the  master  is  not  liable  for  an  injury 
to  one  engaged  in  such  occupation  caused  by 
the  negligence  of  a  competent  fellow  servant 

[EU.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  {{  486-188;    Dec.  Dig.  8 

For  other  definitions,  see  Words  and  Phrases, 
vol.  8,  pp.  2716-2730;    vol.  8,  p.  7662.] 

2.  Masteb  and  Sehvant  (§  217*)— Injubt  to 
Sebvant— Assumed  Risk— Neouoence  of 
Fellow  Sebvaht. 

A  servant  assumes  ordinary  risks  and  dan- 
gers of  the  employment  upon  which  he  enters, 
80  far  as  they  are  known  to  him,  and  so  far 
as  they  would  have  been  known  to  one  of  his 
a^e,  experience,  and  capacity  by  the  use  of  or- 
dinary care ;  and  he  is  bound  to  take  noUce 
of  the  ordinary  operation  of  the  familiar  laws 
of  gravitation,  and  assumes  the  risks  necessarily 
incident  thereto. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant  Cent  Dig.  H  574r-C0O;    Dec.  Dig.  | 

8.  Masteb  and  Sebvant  (J  107*)— Injubt  to 
Sebvant— Duty  of  Masteb— "Appliance." 
An  air  pump  while  being  unloaded  from  a 
railroad  car,  and  which  is  to  be  set  up  for  use 
In  a  plant  to  he  erected  for  the  purpose  of  pre- 
paring material  for  street  paving,  is  not  an 
appliance  within  the  meaning  of  the  rule  which 
requires  the  master  to  exercise  reasonable  care 
in  famishing  his  servants  with  reasonably  safe 
appliances  with  which  to  carry  on  the  master's 
business. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant  Cent  Dig.  §$  178,  179,  190-203,  212, 
255;    Dec.  Dig.  8  107.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  1,  pp.  455,  45C;   vol.  8,  p.  7578.] 

(Syllabus  by  the  CourtJ 

Appeal  from  District  CSourt,  Lancaster 
County;  Frost,  Judge. 

Action  by  Charles  F.  Westlake  against 
Hugh  Murphy.  Judgment  for  plaintiff,  and 
defendant  appeals.     Reversed. 

Strode  &  Strode,  for  appellant  Tibt)ets  Ic 
Anderson,  for  ai^)ellee. 


•For  other  cues  se*  sam*  topic  and  section  NUMBER  In  Dee.  *  Am.  Digs.  1907  to  date,  *  Reporter  Indexei 


Digitized  by  LjOOQIC 


Neb.) 


WESTLAKB  v.  MURPHY. 


685 


BARNES,  J.  Action  to  recover  damages 
for  personal  Injuries  alleged  to  bare  been 
sustained  by  reason  of  the  negligence  of  the 
defendant  Plaintiff  had  a  yerdlct  and  Judg- 
ment, and  the  defendant  has  appealed. 

The  following  facts  may  be  considered  es- 
tablished beyond  dispute:  The  defendant  was 
a  contractor  engaged  In  the  business  of  con- 
structing brick,  concrete,  and  asphalt  pave- 
ments. In  the  year  1000  he  had  a  contract 
with  the  city  of  Lincoln  to  construct  a  large 
amount  of  pavement  on  the  streets  of  that 
city.  Plaintiff  was  employed  by  the  defend- 
ant as  a  common  laborer,  and  at  the  time  of 
the  Injury  complained  of  he,  together  with 
several  other  fellow  laborers,  was  engaged 
In  fhe  work  of  unloading  a  freight  car  which 
had  been  hauled  from  Omaha  to  the  city  of 
Lincoln,  and  which  contained  a  large  number 
of  barrels  of  asphalt,  cement,  oil,  and  certain 
pieces  of  machinery,  together  with  other 
things  commonly  used  In  the  paving  business. 
Among  the  articles  contained  In  the  car  was 
a  large  Iron  pump  weighing  about  1,000 
pounds.  Plaintiff  was  Injured  while  assist- 
ing a  fellow  laborer  In  an  attempt  to  change 
the  position  of  the  pump,  which  fell  upon 
and  Injured  his  leg.  He  alleged  in  his  peti- 
tion that  the  defendant  negligently  failed  to 
provide  a  safe  place  for  his  servants  to  work; 
that  the  appliances  furnished  by  the  defend- 
ant were  defective;  that  at  the  time  of  the 
injury  the  defendant's  foreman  was  negll- 
gently  absent  from  the  car  In  which  the  work 
was  being  done.  Defendant  answered,  deny- 
ing negligence  of  any  kind  on  his  part,  aqd 
alleging  contributory  negligence  on  the  part 
of  the  plaintiff.  The  defendant  pleaded  as 
a  further  defense  that  at  the  time  of  the 
injury  the  plaintiff  and  his  fellow  servants 
were  attempting  to  move  the  pump  in  ques- 
tion in  direct  disobedience  of  the  foreman's 
orders,  and.  If  there  was  any  negligence  In 
the  handling  of  the  pump,  it  was  the  negli- 
gence of  the  plaintiff  himself  or  his  fellow 
servants,  for  which  the  defendant  was  not 
liable. 

Defendant  contends  that  the  verdict  Is 
not  sustained  by  the  evidence.  In  addition  to 
the  facts  above  stated,  the  plaintiff  testified 
that  all  of  the  persons  who  were  working 
with  him  at  the  time  the  accident  occurred 
were  fellow  laborers  engaged  In  the  same 
work  for  a  common  purpose  and  under  the 
instructions  of  the  same  master.  Therefore 
they  were  all  within  the  rule  which  exempts 
the  master  from  liability  for  the  negligence 
of  competent  fellow  servants.  There  Is  no 
evidence  in  the  record  which  shows  or  tends 
to  show  that  the  defendant  was  negligent  in 
the  employment  of  the  plaintiCTs  fellow  serv- 
ants. Therefore  their  competency  must  be 
presumed.  Plaintiff  also  testified  that,  while 
the  car  ^vhlcb  contained  the  pump  in  question 
was  being  unloaded,  their  foreman,  Atchison, 
was  supervising  the  work,  and  was  dividing 
his  time  between  the  car  and  tbe  plant  which 
was  being  Installed  near  another  track  about 
150  feet  from  the  car;  that  at  tbe  time  of 


the  accident  he  was  not  present,  and  had 
been  absent  from  the  car  about  an  hour ;  that 
theretofore  the  foreman  had  assisted  in  mov- 
ing the  pump  from  the  top  of  tbe  barrels  of 
asphalt  to  the  floor  of  the  car;  that  they  were 
unloading  the  north  end  of  the  car  when  a 
fellow  workman  by  the  name  of  Lewis  at- 
tempted to  move  the  pump,  and  asked  him  to 
steady  it;  that  while  they  were  so  engaged 
the  pump  fell  over  on  bis  leg  and  Inflicted 
the  Injury  complained  of.  Plaintiff  claims 
that  the  pump  was  placed  in  such  a  position 
that  it  was  necessary  to  move  it  before  the 
barrels  of  asphalt,  which  were  in  the  north 
end  of  the  car  could  be  unloaded;  and  that 
this,  together  with  the  absence  of  the  fore- 
man, constituted  actionable  negligence  on  the 
part  of  the  defendant.  On  this  point  the 
testimony  shows  beyond  question  that  af^er 
tbe  pump  was  placed  on  the  floor,  and  the 
south  end  of  tbe  car  was  unloaded,  the  work- 
men had  been  engaged  for  at  least  an  hour 
In  unloading  the  barrels  of  asphalt  from  the 
north  end  of  the  car,  and  plaintiff  practically 
admits  this,  but  Insists  that  there  was  not 
sufficient  room  to  get  the  barrels  between  the 
pump  and  the  east  side  of  the  car.  His  wit- 
nesses, however,  do  not  sustain  him  on  this 
point  Even  his  principal  witness,  Stransky, 
says  that  they  had  been  taking  barrels  from 
the  north  end  of  the  car  and  rolling  them 
out  of  the  east  door  for  about  an  hour  be- 
fore  the  accident  occurred.  On  this  point  he 
testified  as  follows:  "Q.  And  you  worked  out 
there  an  hour  and  a  half  while  they  were 
rolling  barrels  out  of  the  north  end  of  the 
car  before  Mr.  Westlake  got  hurt,  didn't  you? 
A.  Yes,  sir."  Defendant's  foreman  and  the 
other  workmen  testified  that  there  was  plenty 
of  room  between  tbe  pump  and  the  east  side 
of  the  car  to  roll  tbe  barrels  out  of  the  east 
door.  So  It  may  be  said  that  at  most  tbe  mov- 
ing of  the  pump  was  a  matter  of  covenlence 
and  not  one  of  necessity.  We  are  therefore 
of  opinion  that  there  is  nothing  In  the  evi- 
dence which  takes  this  phase  of  the  case  out 
of  the  rule  that  the  master  is  not  liable  for 
the  negligent  acts  of  competent  fellow  serv- 
ants. Chicago,  B.  &  Q.  R.  Co.  v.  Kellogg,  54 
Neb.  127,  74  N.  W.  4.54;  Sw'adley  v.  Missouri 
P.  R.  Co.,  118  Mo.  288,  24  S.  W.  140,  40  Am. 
St  Rep.  360;  Wright  v.  N.  Y.  Cent  Ky.  Co., 
25  N.  Y.  562;  Adams  v.  Iron  Cliffs  Co.,  78 
Mich.  271,  44  N.  W.  270,  18  Am.  St.  Rep.  441; 
Justice  V.  Pa.  Co.,  130  Ind.  321,  80  N.  E.  303. 
Again,  plaintiff  by  accepting  employment 
with  the  defendant  assumed  all  tbe  risks  of 
injury  caused  by  the  negligence  of  competent 
fellow  servants  by  the  dangers  arising  from 
the  existing  conditions.  Including  machinery, 
appliances,  etc.,  which  were  known  or  appar- 
ent and  obvious  to  persons  of  bis  experience 
and  understanding.  This  rule  Is  well  settled 
bdth  by  tbe  laws  of  England  and  of  this 
country.  Evans  Laundry  Co.  v.  Crawford,  67 
Neb.  153,  93  N.  W.  177;  Fremont  Brewing  Co. 
V.  Hansen,  65  Neb.  450,  91  N.  W.  279;  Havl- 
land  V.  Kansas  City  Ry.  Co..  172  Mo.  100.  72 
a  W.  615;  Broderlck  v.  St  Paul  City  Ry.  Co., 


Digitized  by  VjOOQ  l€ 


689 


122  NORTHWESTERN  REPORTER. 


(Nek 


74  Minn.  163,  77  N.  W.  28;  Wahlqulst  t. 
Mapl«  Grove  Coal  Co.,  116  Iowa,  720, 89  N.  W. 
88;  Mad  River  Ry.  Co.  v.  Barber,  5  OUo  St 
541,   67  Am.  Dec.  312. 

Plaintiff,  however,  Insists  that  the  defend- 
ant was  guilty  of  negligence.  In  that  he  fail- 
ed to  furnish  him  with  safe  appliances  asd 
a  reasonably  safe  place  to  work;  and  be  in- 
troduced some  testimony  tending  to  show 
that  the  pump  in  question  was  insecurely 
fastened  to  the  plank  on  which  it  rested,  and 
as  a  result  slid  off  and  Injured  him.  The 
pump  while  being  moved  was  not  an  appli- 
ance furnished  by  the  defendant  for  use  by 
the  plaintiff  or  any  of  his  fellow  servants 
within  the  rule  which  requires  the  master  to 
furnish  his  servants  with  reasonably  safe 
tools  and  appliances  with  which  to  perform 
their  work.  The  pump  was  not  to  be'  used 
by  the  plaintiff  or  his  fellow  servants  In  the 
work  In  which  they  were  then  engaged.  It, 
like  the  barrels  of  asphalt,  and  the  other 
property  and  tools,  was  to  be  unloaded  from 
the  car.  When  taken  out  of  the  car  and 
put  in  place  for  use,  it  would  then  become 
an  appliance,  and,  while  being  used,  any  de- 
fect therein  which  the  defendant  by  the  ex- 
ercise of  reasonable  care  could  have  discov- 
ered, and  which  the  plaintiff  by  the  exercise 
of  such  care  would  not  have  discovered,  might 
then  be  made  the  basis  of  an  action  to  recov- 
er on  account  of  the  failure  of  the  master  to 
furnish  reasonably  safe  appliances.  To  on- 
load the  pump  wa^  a  part  of  the  work  of 
unloading  the  car.  The  asphalt  barrels  and 
the  pump  were  a  part  of  the  materials  to  be 
unloaded.  Neither  of  them  were  the  tools. 
Instruments,  or  appliances  to  be  used  by  the 
plaintiff  or  his  fellow  servants  in  unloading 
the  car.  Therefore  the  rule  with  respect  to 
safe  appliances  has  no  application  to  the 
facts  of  this  case.  It  is  true  that  the  work 
of  unloading  the  pump  because  of  its  weight 
and  condition  was  more  or  less  dangerous, 
but  the  plaintiff  was  charged  with  the  knowl- 
edge of  that  danger.  He  was  a  man  45  years 
of  age,  and  accustomed  to  that  kind  of  work. 
He  Imew  the  condition  of  the  pump,  was 
aware  that  it  was  top-heavy,  and  liable  to 
tip  over  and  injure  those  engaged  in  moving 
it.  He  had  assisted  in  loading  and  unloading 
it  before,  and  was  fully  aware  of  all  of  the 
dangers  incident  thereto.  It  was  not  neces- 
sary for  the  master  to  instruct  bim  as  to 
that  matter,  and  the  law  presumes  that  he 
knew  as  much  about  the  dangers  incident  to 
that  part  of  his  employment  as  did  the  mas- 
ter himself.  The  fact  that  the  negligent  act 
of  a  fellow  servant  caused  it  to  tip  over  and 
injure  the  plaintiff  did  not  render  the  de- 
fendant guilty  of  actionable  negligence. 

Finally,  it  is  claimed  by  the  defendant 
that  the  plaintiff  was  injured  while  acting 
in  direct  disobedience  to  his  master's  orders, 
and  therefore  he  cannot  recover.  This  point 
Is  the  only  one  on  which  there  is  any  ma- 


terial conflict  In  the  evidence.  Considering 
the  condition  of  the  record,  we  think  tills 
question  is  not  material,  and  therefore  it 
will  receive  no  further  attention.  , 

For  the  foregoing  reasons,  we  find  it  im- 
possible to  sustain  the  Judgment  of  the  trial 
court.  It  Is  with  much  reluctance  that  we 
have  reached  this  (inclusion,  for  it  Is  ap- 
parent that  the  plaintiff,  by  reason  of  the 
accident  in  question,  has  sustained  much 
suffering  and  considerable  damage,  but,  as 
the  record  now  stands,  we  are  unable  to  af- 
ford him  any  relief.  The  Judgment  of  the 
district  court  is  therefore  reversed,  and  the 
cause  is  remanded  for  further  proceedings. 

Reversed  and  remanded. 

REEi»B,  0.  3.,  and  FAWCElT,  X,  not  sit- 
ting. 


SEELE  V.   STATE.     (No.  16,130.) 
(Supreme  Court  of  Nebraska.     Sept  25,  1909.) 

1.  CamiNAj,  Law  (J  1172*) — Habuless  Bb- 

BOB— iNBTBUCnONB. 

In  a  prosecution  a^inst  a  saloon  keeper 
for  selling  into!ci:!ating  liquors  to  a  minor,  tliece 
was  DO  reversible  error  m  an  instruction  tliat 
defendant  was  responsible  for  the  acts  of  his 
servants,  where  the  record  clearly  showed  he 
was  not  prejudiced  by  it 

[Bid.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  §§  3154^-3163;  Dec.  Dig.  { 
1172.*] 

2.  iNTOxicATiwo  Liquors  (8  159*)— Sale  to 

MiNOHS— DErENSlis— lONOBAKCB. 

In  a  prosecution  against  a  saloon  keeper 
for  selling  intoxicating  liquors  to  a  minor,  it 
is  no  defense  that  accused  acted  In  ignorance 
of  the  minor's  age  and  without  any  intent  to 
violate  the  law. 

[Ed.  Note.— For  other  cases,  see  Intoxicatiiif 
Liquors,  Cent.  Dig.  {g  171-172;  Dec  Dig.  { 
159.*] 

3.  (JBiKiNAL  Law  ($  829*)— Tbiai,— Instbuc- 

TIONS. 

Where  the  trial  court  by  proper  instrac- 
tions  submitted  to  the  jury  the  credibility  of 
all  the  witnesses  who  testified,  there  was  no  er- 
ror In  refusing  an  instruction  referring  alone 
to  the  credibility  of  one  of  them. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  §  2011 ;   pec.  Dig.  I  829.*] 

4.  Cbiminai.    Law    (|   1153*)— Appeai^Dis- 

CBETIOH. 

On  cross-examination  of  a  witness,  a  ml- 
ing  of  the  trial  court  in  refusing  to  strike  oat 
an  answer  to  a  question  to  which  there  was  no 
objection  will  not  be  reversed  except  for  an 
abuse  of  discretion. 

[E3d.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  §{  3061-30C6;  Dec.  Dig.  S 
1153.*J 

5.  Cbiminai.  Law  ({  1170%*)— HABMLgas  Er- 

BOB. 

On  examination  of  a  witness,  error  in  over- 
ruling an  objection  to  a  question  is  not  a  ground 
of  reversal,  where  the  answer  is  favorable  to 
the  complaining  party  and  in  no  way  preju- 
dices his  rights. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  S8  3129-3135;  Dec.  Dig.  I 
117(%.*] 

(Syllabus  by  the  Court) 


•For  other  cuei  im  muho  toplo  and  lectlon  NUMBER  la  Doc.  *  Am.  Diss.  U07  to  dato,  *  Raporter  Indons 


Digitized  by  VjOOQ  IC 


Neba 


8EELB  T.  STATE. 


687 


Error  to  District  Court,  Johnson  Oounty; 
Pemberton,  Judge. 

Henry  Seele  was  convicted  of  selling  In- 
toxicating liquors  to  a  minor,  and  brings 
error.   Affirmed. 

8.  P.  Davidson,  for  plaintiff  in  error.  W. 
T.  Tbompson  and  Geo.  W.  Ayres,  for  the 
8tat& 


ROSE,  J.  For  the  offense  of  selUng  In- 
toxicating liqaors  to  Henry  Southard,  a  mi- 
nor, defendant,  Henry  Seele,  a  licensed  saloon 
keeper  at  Sterling,  was  fined  $26  and  costs 
and  brought  the  case  to  this  court  as  plaintiff 
lu  error.  Complaint  is  made  of  the  sufficien- 
cy of  the  evidence  to  sustain  the  conviction, 
but  a  careful  examination  of  the  record  shows 
that  the  Jury  in  that  particular  was  justified 
In  finding  defendant  guilty. 

1.  A  new  trial  is  demanded  on  the  ground 
.  that  the  court  below  erred  In  giving  the  fol- 
lowing instruction :   "The  court  instructs  the 
jnry  that  in  the  sale  of  intoxicating  liquors 
to  minors  the  owner  or  keeper  of  the  saloon 
Is  responsible  for  the  acts  of  his  servants  and 
employes;    and  a  sale  by  a  servant  or  em- 
ployfi  of  a  saloon  keeper  Is  in  law  a  sale  by 
the  saloon  keeper  himself."     The  doctrine 
stated  does  not  appear  to  be  in  harmony  with 
^hat  was  said  by  this  court  in  an  opinion 
by  Chief  Justice  Sullivan  in  Moore  v.  State, 
64  Neb.  557,  90  N.  W.  653,  where  the  foUow- 
Ing  language  is  found :  "It  was  conclusively 
proved  that  the  defendant  was  a  licensed 
Tender  of  intoxicating  drinks,  doing  business 
In  the  village  of  Anselmo,  and  that  the  illegal 
sales  charged  in  the  information  were  made 
in  his  saloon  by  his  bartender.    The  evidence 
given  on  behalf  of  the  defendant  shows  the 
sales  were  made  without  his  knowledge.  In 
violation  of  express  instructions,  and  during 
his  absence  from  the  village.    Do  these  facts 
acquit  the  defendant  of  criminal  responsibil- 
ity?    This  is  the  decisive  question  In  the 
case,  and  it  is  the  only  question  counsel  have 
discussed.    The  statute  does  not  assume  to 
make  masters  liable  for  the  conduct  of  their 
servants,  but  only  for  their  own  conduct" 
In  Berger  v.  Wilcox  (Neb.)  120  N.  W.  960, 
this  rule  was  adopted:   "Where  a  bAVieeper 
sells  intoxicating  liquors  to  a  minor  or  to 
an  habitual  drunkard,  the  proprietor  of  the 
place  will  be  held  responsible  for  such  sale, 
in  the  absence  of  evidence  that  they  were 
made  in  violation  of  his  orders."    In  Pulver  v. 
State  (Neb.)  119  N.  W.  780,  the  second  para- 
graph of  the  syllabus  is  as  follows :   "Where 
a  licensed  saloon  keeper  is  prosecuted  for  the 
violation  of  a  city  ordinance  forbidding  him 
to  keep  bis  place  of  business  open  after  11 
o'clock  p.  m.,  and  such  act  is  shown  to  have 
been  committed  by  an  agent  in  charge  of  such 
business,  it  is  unnecessary  to  show  any  guilty 
intent  on  the  part  of  the  owner ;  such  prose- 
cution being  In  the  nature  of  a  civil  action 


to  recover  a  penalty."    In  WilliamB  t.  PhU- 
Ilps,  118  N.  W,  1098,  this  const  held :  "Where, 
on  the  hearing  of  a  remonstrance  against 
the  granting  of  a  liquor  license,  it  is  satis- 
factorily proven  that  the  applicant  has  with- 
in a  year  sold  or  given  to  a  minor  malt  or 
spirituous  liquors,  he  is  not  entitled  to  a  li- 
cense, and  his  application  should  be  denied." 
In  the  same  case  the  court  said :   "Where  in- 
toxicating liquors   are  unlawfully   sold  by 
the  agent  of  a  saloon  keeper,  the  principal  as 
well  as  the  agent  may  be  prosecuted.    Mar- 
tin V.  State,  30  Neb.  508,  46  N.  W.  621."    Was 
the  instruction  quoted  from  the  record  preju- 
dicial to  defendant?     He  and  a  number  of 
his  bartenders  testified  that  no  sale  to  South- 
ard had  been  made,  as  charged  in  the  in- 
formation or  as  stated  in  the  proofs  on  be- 
half of  the  stata     According  to  Southard, 
the  first  sale  was  made  at  defendant's  saloon 
July  4,  1908.    The  name  of  the  person  who 
made  it  was  not  disclosed  by  the  state's 
proofs.    Defendant  testified  he  went  to  the 
saloon  between  6  and  6  o'clock  in  the  morn- 
ing of  July  4, 1908,  remained  until  11  o'clock 
at  night,  and  was  behind  the  bar  all  day, 
having  eaten  his  meals  there.    He  told  the 
jury  he  paid  particular  attention  to  minors 
that  day,  and  did  not  allow  them  to  come  in- 
to the  saloon.    In  answer  to  one  question  he 
replied:   "I  simply  stayed  distinctly  on  that 
minor  business,  so  there  were  no  minors  al- 
lowed to  come  in."    The  fair  import  of  his 
proofs  is  that  he  was  in  the  saloon  all  day  in 
presence  of  his  bartenders  and  other  serv- 
ants, where  he  assumed  personal  resijonslbll- 
Ity  for  keeping  minors  out,  and  where  each 
employs  was  subject  to  personal  direction. 
There  is  no  proof  of  the  violation  of  any  or- 
der of  defendant,  or  that  he  was  unable  to 
keep  Southard  out  or  to  prevent  sales  to  him. 
Southard  testified  he  also  bought  intoxicating 
liquors  at  defendant's  saloon  July  12,  1908, 
and  October  1,  1908.    He  said,  however,  that 
on  both  occasions  he  bought  the  liquor  from 
defendant  personally.    Except  on  the  three 
dates  named  there  was  no  evidence  of  any 
sale  to  Southard.     Under  the  circumstances 
disclosed  the  giving  of  the  Instruction  that 
a  saloon  keeper  is  responsible  for  the  acts  of 
his  servants  was  not  a  prejudicial  error. 

2.  Defendant  insists  the  Judgment  below 
should  be  reversed  for  error  on  part  of  the 
trial  court  in  giving  the  following  instruc- 
tion: "If  you  find  from  the  evidence  be- 
yond a  reasonable  doubt  that  a  sale  of  in- 
toxicating liquor  was  made  by  the  defend- 
ant to  Henry  Southard,  minor,  as  alleged 
in  the  complaint,  then  it  is  not  necessary  for 
the  state  to  prove  the  intent  or  motive  of 
the  defendant  In  making  such  sale;  nei- 
ther is  It  necessary  for  the  state  to  prove 
that  such  sale  was  made  to  the  minor  know- 
ingly. A  liquor  dealer  is  bound  to  know 
that  the  person  he  sells  liquor  to  is  not  a 
minor,  and  ignorance  of  the  age  of  the  per- 


Digitized  by  VjOOQ  l€ 


122  NOBXHWESTERN  REPORTEB. 


(Kebb 


son  to  irbom  the  liquor  was  sold  Is  no  ex- 
cuse, and  Irrespective  of  good  faith  and 
honest  intention,  the  mere  fact  of  selling  liq- 
uor to  a  minor  constitutes  the  entire  of- 
fense." This  direction  to  the  Jury  Is  assail- 
ed on  the  ground  that  It  permits  a  convic- 
tion, though  defendant  In  mal^lDg  the  sale 
acted  conscientiously  In  Ignorance  of  the 
minor's  age  and  without  any  crlmlnqj  Intent 
or  purpose  to  evade  or  disobey  the  law.  The 
statute  violated  by  defendant  is  a  police  reg- 
ulation. It  Is  a  part  of  the  legislation  enact- 
ed for  the  purpose  of  keeping  the  traffic  In 
Intoxicating  liquors  under  surveillance,  and 
of  averting  the  evils  growing  out  of  sales 
to  minors.  The  Intent  with  which  such 
sales  are  made  Is  no  part  of  the  offense  de- 
fined by  law.  The  statute  declares :  "E>ery 
person  licensed  as  herein  provided,  who  shall 
give  or  sell  any  malt,  spirituous  and  vi- 
nous liquors  or  any  Intoxicating  drinks  to  any 
minor,  apprentice,  or  servant,  under  tweuty- 
one  years  of  age,  shall  forfeit  and  pay  for 
each  offense  the  sum  of  twenty-flve  dollars." 
Comp.  St.  1901,  c.  50,  i  8.  Sales  made  to 
a  minor  In  Ignorance  of  his  age  and  with- 
out any  Intention  to  disobey  the  law  are 
not  excepted  from  the  operation  of  the 
statute.  A  licensee  is  not  authorized  to  sell 
intoxicating  liquors  Indiscriminately.  The  re- 
sponsibility of  complying  with  the  terms 
of  his  license  and  with  the  provisions  of 
the  law  under  which  he  becomes  a  saloon 
keeper  Is  on  him.  Under  the  statute  quoted, 
he  must  ascertain  at  his  peril  whether  the 
purchaser  Is  a  minor.  In  enforcing  a  stat- 
ute which  prohibited  sales  to  minors,  the 
Supreme  Court  of  Wisconsin  said:  "The 
act  in  question  is  a  police  regulation,  and 
we  have  no  doubt  that  the  Legislature  In- 
tended to  inflict  the  penalty,  irrespective  of 
the  knowledge  or  motives  of  the  person  who 
has  violated  its  provisions.  Indeed,  if  this 
were  not  so,  it  is  plain  that  the  statute 
might  be  violated  times  without  number, 
with  no  possibility  of  convicting  offenders, 
and  so  It  would  become  a  dead  letter  on  the 
statute  book,  and  the  evil  aimed  at  by  the 
Legislature  remain  almost  wholly  untouched. 
To  guard  against  such  results,  the  Legisla- 
ture has.  In  effect,  provided  that  the  saloon 
keeper  or  other  vender  of  intoxicating  liq- 
uors or  drinks  must  know  the  facts,  must 
know  that  the  person  to  whom  he  sells  is  a 
qualified  drinker,  within  the  meaning  of  the 
statute,  and,  if  not,  he  acts  at  his  peril  iu 
disobeying  the  requirements  of  the  law." 
State  V.  Hartflel,  24  Wis.  60.  The  same  doc- 
trine was  announced  in  State  v.  Bruder,  35 
Mo.  App.  475,  and  in  Commonwealth  v. 
Uhrlg,  138  Mass.  492.  Other  courts  have 
taken  the  same  view  which  is  adopted  as 
correct,  though  some  cases  state  a  different 
rule. 
3.  Complaint  is  made  of  the  refusal  of  the 


trial  court  to  give  at  the  request  of  defend- 
ant an  instruction  relating  to  the  credibility 
of  Southard  as  a  witness.  The  objection  is 
without  merit,  since  the  credibility  of  all  the 
witnesses  was  by  a  proper  direction  left  to 
the  Jury. 

4.  Paul  Bamhouse,  also  a  minor,  was  a 
witness  for  the  state.  After  testifying  he 
was  in  defendant's  saloon  with  Southard 
July  4th,  he  was  asked  if  be  purchased  liq- 
uor there  at  that  time,  and  answered  "Yes." 
Though  defendant  made  no  objection  to  the 
question,  he  moved  to  strike  out  the  answer 
after  another  question  had  been  asked.  The 
court  overruled  the  motion,  saying:  "You 
did  not  object  to  it"  This  ruling  is  also  at- 
tacked. There  is  nothing  to  show  that  de- 
fendant was  prevented  from  making  a  prop- 
er objection  when  the  question  was  aske(^ 
According  to  correct  procedure,  a  party 
should  not  wait  for  a  favorable  reply  to  a 
question  and  subsequently  move  to  strike 
out  the  answer  in  the  event  that  it  disap- 
points him.  To  hold  there  was  prejudicial 
error  In  refusing  to  strike  out  the  answer 
under  consideration  would  be  an  unwar- 
ranted interference  with  the  discretion  of 
the  trial  court  in  controlling  its  own  pro- 
ceedlngs. 

5.  Defendant  was  a  witness  in  his  own 
behalf.  After  stating  on  cross-examination 
that  Barnhouse,  a  minor,  was  in  the  saloon 
July  4th,  defendant  was  asked:  "Now,  he 
purchased  liquor  there,  did  he?"  An  objec- 
tion to  this  question  was  overruled,  and  this 
too  is  assigned  as  error.  The  question  call- 
ed for  testimony  as  to  whether  defendant 
had  sold  liquor  to  the  minor  Bamhouse,  an 
offense  not  mentioned  in  the  Information. 
The  objection  is  based  on  the  general  rule 
that  "it  is  incompetent  for  the  state  In  a 
criminal  prosecution  to  prove  that  the  pris- 
oner at  some  other  time  committed  an  of- 
fense similar  to  the  one  with  which  he 
stands  charged."  Palln  v.  State,  38  Neb. 
862,  67  N.  W.  743,  -When  the  objection  to 
the  question  was  overruled,  the  witness  an- 
swered: "Not  to  my  knowledge,  as  I  know 
of."  This  answer  was  not  proof  of  another 
offense.  The  testimony  was  favorable  to 
defendant,  and  shows  on  its  face  that  he 
was  not  prejudiced  by  the  ruling  assailed. 
Defendant  has  not  pointed  out  a  prejudicial 
error,  and  the  Judgment  against  him  is  af- 
Armed. 

PAWCETT,  J.,  not  sitting. 


HXGLES  V.  MORGENSTERN.    (No.  15,765.) 
(Supreme  Court  of  Nebraska.     Sept.  25,  1909.) 

1.  Action   (}  66*)— Coubbe  of  Procedubk— 
Pbactice. 

"If  a  case  ever  arises  in  which  an  action 
for  enforcement  or  protection  of  a  right  or  the 
redress  or  prevention  of  a  wrong  cannot  be  bad 


•For  otber  cues  aee  mud*  topic  and  section  NUMBER  In  Dec.  ft  Am.  Diss.  1M7  to  d«te,  *  Reportei  Induai 


Digitized  by  VjOOQ  l€ 


NebJ! 


BNQLES  T.  HOBGENSTERN. 


under  this  Code,  the  practice  heretofore  in  use 
may  be  adopted  so  far  as  may  be  necessary  to 
prevent  a  failure  of  Justice."  Section  901,  Code 
Civ.  Proc. 

[Ed.  Note.— For  other  cases,  see  Action,  Cent 
Dig.  J  737;   Dee.  Dig.  I  66.  •] 

2.  Jusrncxs  or  the  Pkaos  (f  140*)— Rethw 
OF  Decision— Marnkr— Writ  of  Ebbob. 

The  right  to  review  final  orders  of  justices 
of  the  peace  and  other  inferior  tribunals  still 
exists  notwithstanding  the  repeal  of  section  581 
of  the  Code  of  Civil  Procedure.  (Laws  1906, 
p.  657,  c.  174). 

[Ed.  Note.— For  other  cases,  see  Justices  of 
the  Peace,  Cent  Dig.  |  486;   Dec.  Dig.  I  140.*] 

3.  CONTBACTB  {§  117»)— LEaALITT— ReBTEAINT 
OF  Tbade. 

Contract  set  forth  in  opinion  held  not  to 
be  void  on  its  face  as  against  public  policy  or 
as  in  violation  of  section  1,  c.  91a,  Comp.  St 
Neb.  1901  (secUon  5336). 

[Ed.   Note.— For  other  cases,  see  Contracts, 
Cent  Dig.  §«  554-569 ;   Dec  Dig.  i  117.*] . 
(Syllaboa  by  the  Court) 

Appeal  from  District  Court,  Nemaha  Coun- 
ty; Raper,  Judge. 

Action  by  Henry  Morgenst^ni  against  Al- 
bert M.  Engies.  From  a  Justice's  Judgment  in 
favor  of  plaintiff,  defendant  brought  error  in 
the  district  court,  and,  from  a  Judgment  of 
the  district  court  reversing  the  case  and  re- 
taining it  for  trial,  plaintUT  appeals.  Af- 
firmed. 

E.  B.  Quackenbusb,  for  appellant  H.  A. 
Lambert  and  O.  O.  French,  for  appellee. 


liETTON,  J.  This  action  was  brought  In 
Justice  court  for  the  rent  of  certain  premises 
which  had  been  used  for  a  lumber  yard. 
The  defendant  answered,  admitting  the  alle- 
gations of  the  bill  of  particulars,  but  as  a 
counterclaim  set  forth,  in  substance:  That 
at  the  time  of  renting  the  premises  he  pur- 
chased from  the  plaintiff  the  business  and 
stock  of  lumber  in  the  yard.  That  the  lease 
was  for  a  term  of  fire  years  with  an  option 
for  an  additional  five  years,  and  that  at  the 
time  of  making  the  lease  the  defendant  enter- 
ed into  the  following  agreement:  "I,  Henry 
Morgenstern  of  Auburn,  Nebraska,  for  and  in 
consideration  of  the  purchase  of  my  stock  of 
lumber  and  coal  situated  in  Auburn  togeth- 
er with  the  good  will  of  said  business,  does 
hereby  agree  with  said  A.  M.  Engles,  that 
he  the  said  Henry  Morgenstern  is  not  to 
again  embark  or  engage,  either  directly  or 
indirectly.  In  the  lumber  and  coal  business 
in  the  city  of  Auburn,  Nebraska,  or  in  the 
Tlcinity  thereof,  while  the  said  A.  M.  Engles 
or  T.  W.  Engles  is  In  said  business  in  the 
city  of  Aubom,  Nebraska  Provided  however 
that  If  the  said  A.  M.  Engles  should  dlscon- 
tinne  the  lease  of  the  Morgenstern  Lumber 
yard  in  Auburn,  Nebraska,  at  the  expiration 
of  five  years,  then  this  contract  Is  to  be  void, 
and  the  said  Morgenstern  shall  have  the  right 
to  re-enter  said  business  in  Auburn,  Nebras- 


ka. Witness  my  hand  this  11th  day  «  Octo- 
ber, lOOa  [Signed]  H.  Morgenstern.  Witness 
That  the  agreement  was  broken  by 


the  plaintiff  to  the  defendant's  damage,  con- 
cluding with  a  prayer  for  damages.  The  Jus- 
tice refused  to  admit  this  contract  in  evi- 
dence, dismissed  the  defendant's  cross-bill  of 
particulars,  and  rendered  Jndgmait  for  the 
plaintiff.  Defendant  filed  a  petition  in  error 
with  a  transcript  of  the  proceedings  before 
the  Justice  of  the  peace  in  the  district  court 
for  the  purpose  of  reviewing  the  Justice's 
rulings  upon  the  rejection  of  the  contract 
The  plaintiff  filed  objections  to  the  Jurisdic- 
tion of  the  district  court  on  the  ground  that 
there  is  now  no  authority  of  law  for  error 
proceedings  from  Justice  court  to  the  dis- 
trict court.  These  objections  were  overruled, 
and  a  hearing  had  upon  the  petition  in  er- 
ror. The  court  field  that  the  Justice  erred  in 
holding  the  contract  void  and  reversed  the 
case,  but  retained  it  in  the  district  court  for 
trial  as  the  statute  provides.  From  this  or- 
der the  plaintiff  has  appealed. 

1.  The  basis  of  plaintiff's  contention  as  to 
lack  of  jurisdiction  Is  that  the  Legislature  of 
1905  repealed  secUon  684  of  the  Code  of  Civil 
Procedure  (Laws  1905,  p.  657,  c  174),  and 
thereby  abolished  the  right  of  review  of  the 
Judgments  of  Justices  of  the  peace  by  error 
proceedings.  The  argument  is  that  the  right 
given  by  section  580  to  review  Judgments  ren- 
dered or  final  orders  made  by  a  Justice  of  the 
peace  and  other  Inferior  tribunals  Is  effective 
by  the  allowance  of  appeals,  and  that,  there 
being  now  no  Code  provisions  governing  the 
manner  of  prosecuting  error  from  a  Justice 
court,  the  manner  of  review  must  be  by  appeal 
alone,  and  the  district  court  can  have  no  Juris- 
diction of  any  proceedings  in  error.  From  an 
examination  of  all  the  sections  of  the  Code 
bearing  upon  the  review  by  proceedings  in  er- 
ror of  final  orders  made  by  Justices,  and  other 
inferior  tribunals,  we  find  that  the  repeal  of 
section  684  is  the  only  change  made  by  the 
Legislature  affecting  such  remedy.  This  sec- 
tion covered  the  proceedings  both  in  the  dis- 
trict and  Supreme  Courts,  and  provided  for 
the  filing  of  a  petition  in  error.  When,  in 
1905,  the  change  was  made  by  which  all  dvil 
cases  brought  for  review  to  the  Supreme  Court 
must  thereafter  be  brought  in  the  form  of 
appeals,  and  the  formal  "petition  In'  error" 
was  abolished  in  that  court,  the  Legislature 
evidently  overlooked  the  fact  that  In  this  sec- 
tion was  also  embraced  the  manner  of  pro- 
cedure applicable  to  proceedings  in  error 
brought  to  the  district  court  That  this  was 
an  oversight  Is  clear,  for  in  no  other  respect 
was  the  right  of  review  by  error  Interfered 
with.  See  sections  699,  600,  and  601  of  the 
Code.  Indeed,  It  is  a  matter  of  legislative 
history  that  at  Its  next  session  an  act  was 
passed  to  remedy  the  defect,  but  was  vetoed 
by  the  Governor  during  the  closing  rush. 
The  right  of  review  upon  error  exists  now  as 


•For  other  esMi  im  mid*  tople  and  SMtlon  NUMBER  in  Dec.  *  Am.  Digs.  19CT  to  date,  *  Haportor  Indaxas 
122N.W.- 


Digitized  by  LjOOQIC 


690 


122  NOBTHWKSTEBN  REPOBTEB. 


(Neb. 


it  always  has  In  this  state  since  the  adoption 
of  the  Code,  although  the  specl&l  form  of 
procedure  provided  by  section  584  has  been 
abrogated.  Under  our  Constitution  the  right 
to  be  heard  in  the  court  of  last  resort  can- 
not be  denied  by  the  Legislature.  We  haye 
heretofore  held  that  the  right  of  appeal  Is  a 
statutory  right,  which  may  be  given  or  with- 
held as  the  Legislature  may  deem  best,  pio- 
vlded  always  that  in  some  other  manner  the 
recourse  to  a  higher  court  Is  left.  In  Molse 
V.  Powell,  40  Neb.  671,  59  N.  W.  79,  It  Is  point- 
ed out  by  Commissioner  Irvine  that,  while 
the  statute  provides  that  there  shall  be  no 
appeals  from  Justice  court  "in  jury  trials 
where  neither  party  claims  in  his  bill  of  par- 
ticulars a  sum  exceeding  $20,"  the  provisions 
of  secUon  24  of  the  Bill  of  Bights  that  "the 
right  to  be  heard  in  all  civil  cases  in  the 
court  of  last  resort  by  appeal,  error,  or  oth- 
erwise shall  not  be  denied"  permits  a  resort 
to  this  court  by  error  proceedings,  and  that 
the  statute  forbidding  appeals  in  such  cases 
Is  therefore  not  in  violation  of  the  Constitu- 
tion. Section  901  of  the  Code  is  In  part  as 
follows:  "If  a  case  ever  arises  in  which  an 
action  for  enforcement  or  protection  of  a 
right  or  the  redress  or  prevention  of  a  wrong 
cannot  be  had  under  this  Code,  the  practice 
heretofore  In  use,  may  be  adopted  so  far  as 
'  may  be  necessary  to  prevent  a  failure  of  jus- 
tice." 

As  we  have  seen,  the  right  of  review  uih 
on  error  exists.  If,  as  the  plaintiff  con- 
tends, this  right  cannot  be  enforced  under 
the  Code,  we  are  of  opinion  that  "the  prac- 
tice heretofore  used  may  be  adopted  so  far 
as  may  be  necessary  to  prevent  a  failure 
of  justice."  While  the  writ  of  certiorari 
has  been  abolished  by  the  Code,  It  would 
seem  that  the  procee<llng8  calling  the  at- 
tention of  the  reviewing  court  to  errors  al- 
leged to  have  been  committed  by  an  Inferior 
court  have  necessarily  followed  along  the 
lines  of  the  old  application  for  the  writ;  In 
other  words,  the  specific  errors  which  are 
complained  of  have  been  presented  to  the 
reviewing  court  for  Its  consideration  by 
means  of  formal  allegations  set  forth  in  an 
application  or  petition.  6  Cyc.  781,  783,  784. 
Under  the  Code  this  has  been  done  by  a 
"petition  in  error."  In  the  present  case  an 
exception  was  taken  to  the  ruling  of  the 
justice  of  the  peace  upon  the  exclusion  of 
the  contract,  the  ruling  and  exception  enter- 
ed upon  the  docket,  and  a  petition  In  error 
setting  forth  the  error  complained  of  was 
filed  In  the  district  court.  This,  we  think, 
was  snfllcient  to  give  the  district  court  Ju- 
risdiction under  the  liberal  provisions  of  the 
Code  when  viewed  In  connection  with  the 
constitutional  right  to  review  all  cases  in 
this  court. 

2.  The  next  point  made  Is  that  the  con* 
tract  Is  Illegal  and  void  as  being  In  restraint 
of  trade,  and  in  violation  of  section  1,  c.  91a, 
Comp.  St  Neb.  1901,  entitled  "Trusts."  The 
making  of  the  contract  is  contended  to  be  a 


violation  of  section  1  of  this  act.  Th«  title 
of  the  act  is  "An  act  to  define  trusts  and 
conspiracies  against  trade  and  business,  de- 
claring the  same  unlawful  and  void,  and  pro- 
viding means  for  the  suppression  of  the 
same  and  remedies  for  persons  injured  there- 
by." etc.  Section  1  defines  trusts,  and,  in 
substance,  sets  forth  "that  a  trust  Is  a  com- 
bination of  capital,  skill  or  acts  by  two  or 
more  persons,  or  by  two  or  more  of  them  for 
either  any  or  all  of  the  following  purposes: 
(1)  to  create  or  carry  out  restrictions  in 
trade,  •  *  *  (3)  to  prevent  competition 
in  *  *  *  the  sale  or  purchase  of  merchan- 
dise, produce  and  commodities,  *  *  *  (5) 
*  *  ♦  with  the  Intent  to  preclude  or  the 
tendency  of  which  Is  to  prevent  or  preclude 
a  free  and  unrestricted  competition  among 
themselves  or  others  or  the  people  generally 
In  the  production,  sale,  traffic  or  transporta- 
tion of  any  such  article  or  merchandise, 
product  or  commodity  or  conducting  a  like 
business."  We  think  It  clear  from  an  ex- 
amination of  the  title  and  the  body  of  this 
act  that  It  Is  directed  against  combinations 
and  conspiracies  to  Interfere  with  the  ordi- 
nary conduct  of  trade  and  business,  and  that 
it  Is  no  part  of  its  object  to  condemn  or 
render  Illegal  such  contracts  in  partial  re- 
straint of  trade  as  have  for  many  years  been 
held  valid  by  the  courts  of  England  and 
America.  The  law  upon  this  subject  has  in 
recent  years  received  consideration  at  the 
hands  of  other  courts,  and  we  think  it  un- 
necessary to  examine  and  set  forth  the  cases 
in  their  chronological  sequence  or  historical 
relations,  but  will  content  ourselves  with 
reference  to  a  few  cases  In  which  the  sub- 
ject has  been  dealt  with  and  a  like  conclu- 
sion reached.  Downing  v.  Lewis,  5C  Neb. 
386,  76  N.  W.  900;  Hitchcock  v.  Anthony. 
83  Fed.  779,  28  C.  C.  A.  80;  Brett  v.  Ebel, 
29  App.  Dlv.  250,  51  N.  Y.  Supp.  573;  A. 
Booth  &  Co.  V.  Davis  (C.  C.)  127  Fed.  873. 
This  latter  case  Involved  the  consideration  of 
a  Michigan  statute  substantially  the  same  as 
the  Nebraska  law.  It  was  held  that  the  law 
had  no  application  to  a  similar  contract. 
See,  also,  Davis  v.  A.  Booth  &  Co.,  131  Fed. 
31,  65  C.  C.  A.  209;  Gates  v.  Hooper,  90 
Tex.  563,  30  S.  W.  1079. 

It  is  urged  that,  in  the  absence  of  allega- 
tion and  proof  of  facts  showing  the  reason- 
ableness of  the  restraint  Imposed  by  such 
a  contract.  It  is  prima  facie  void,  and  we 
are  referred  to  the  opinion  in  Roberts  v. 
Lemont,  73  Neb.  365,  102  N.  W.  770,  as  up- 
holding this  view,  and  as  being  in  accord- 
ance with  the  great  weight  of  authority. 
We  think  the  holding  In  that  case  sonnd 
law,  but  it  is  contracts  In  restraint  of  trade 
"without  limitation  as  to  time  and  place" 
that  are  so  stigmatized  and  not  such  as  af- 
ford only  a  fair  protection  to  the  interest 
of  a  purchaser  and  do  not  show  an  injury 
to  the  public  interest.  Homer  v.  Graves, 
7  Bing.  735,  743.    It  Is  apparent  from  a  con- 


Digitized  by  VjOOQ  l€ 


Neb^ 


STATE  T.  ADAMS  EXPRESS  CO. 


691 


Bideratlon  of  the  ^ntract  In  this  case  that 
the  partial  restraint  of  trade  was  only-  col- 
lateral to  the  main  contract  which  was  that 
of  the  purchase  of  the  business  and  stodc  of 
lumber  and  coal,  and  the  leasing  of  the  real 
estate  upon  which  the  business  was  con- 
ducted, and  the  duration  of  the  restraint  is 
limited  to  the  time  during  which  A.  M.  Engles 
or  T.  W.  Engles  is  engaged  in  the  lumber 
and  coal  business  In  the  city  of  Auburn, 
with  the  proviso  that,  if  A.  M.  Engles  dis- 
continues the  lease  of  the  yard  at  the  expi- 
ration of  five  years.  It  shall  then  be  void. 
We  see  nothing  unreasonable  in  this  con- 
tract on  its  face.  It  is  possible  that  there 
may  be  some  extrinsic  circumstances  affect- 
ing the  relations  of  T.  W.  Engles  to  the 
transaction  or  to  the  business  which  may 
affect  its  validity,  but,  nothing  of  this  kind 
appearing  upon  its  face,  we  think  the  au- 
thorities citeid  are  not  applicable.  It  is  said 
In  the  brief  that  T.  W.  Engles  is  another  in- 
dependent lumber  dealer  in  Auburn,  and  it 
Is  strenuously  Insisted  that  because  the  con- 
tract contains  bis  name  as  well  as  that  of 
A.  M.  Engles,  the  purchaser,  it  shows  upon 
Its  face  unreasonable  restrictions  with  ref- 
erence to  a  person  not  a  party  to  the  sale. 
There  is  nothing  in  the  record  to  disclose 
this  fact,  or  to  show  whether  it  is  material 
or  relevant,  and,  since  the  point  we  are  now 
considering  Is  whether  or  not  the  district 
court  was  Justified  in  holding  that  the  jus- 
tice erred  in  excluding  this  contract  as  evi- 
dence, it  is  unnecessary  to  consider  whether 
or  not  the  contract  may  upon  a  full  con- 
sideration and  disclosure  of  all  the  surround- 
ing circumstances , be  found  by  the  court  to 
be  within  the  ban  of  the  statute.  On  this 
phase  of  the  case  we  adopt  the  words  of 
the  Master  of  the  Rolls  In  Hayes  v.  Doman, 
1899,  2  Ch.  13:  "That  the  court  ought  not 
to  hold  a  Just  and  honest  agreement  void, 
even  when  to  enforce  it  would  be  Just,  sim- 
ply because  the  agreement  is  so  unskllirully 
worded  as  apparently,  or  even  really,  to 
cover  some  conceivable  case  not  within  the 
mischief  sought  to  be  guarded  against.  Pub- 
lic policy  does  not  require  so  serious  a 
consequence  to  be  attached  to  a  mere  want 
of  accuracy  in  expression.  To  hold  such 
an  agreement  wholly  Illegal  and  void  is  to 
lose  all  sense  of  proportion,  and  is  not 
necessary  for  the  protection  either  of  the 
defendant  or  of  the  public."  We  think  the 
contract  shonld  have  been  admitted  in  evi- 
dence, being  properly  within  the  issues  rais- 
ed by  the  defendant's  cross-bill  of  particu- 
lars in  that  court 

Whatever  the  district  court  may  in  the 
light  of  all  the  surrounding  circumstances 
eventually  hold  the  purpose  of  the  contract 
was,  it  was  clearly  right  in  finding  that  the 
Justice  court  erred  in  Its  exclusion  and  in 
reversing  the  Judgment  of  that  court  and 


retaining  the  case,  for  trial.  We  find  no  er- 
ror in  the  Judgment,  and  it  is  therefore  «f- 
firmed. 

REESE,  a  J.,  absent  and  not  sitting. 


STATE  V.  ADAMS  EXPRESS  CO. 
(No.  15,310.) 

(Supnme  Court  of  Nebraska.    Sept.  25,  1909.) 

1.  CONSTITOTIONAl,  LAW  (S  48*)— VaLIDIXT  OF 

Statuti:— Pbesumption. 

Statutes  fixing  maximum  rates  which  cor- 
porations, joint-stock  companies,  or  persons 
whose  property  is  devoted  to  public  use  o^y 
charge  and  receive  as  compenBation  for  their 
services  are  presumed  to  be  constitutional ;  and 
the  burden  of  proof  Is  on  one  who  challenges 
their  validity  to  show,  by  a  preponderance  of 
the  evidence,  that  the  legislation  complained  of 
clearly  contravenes  some  provision  of  the  06n- 
stitution. 

[Ed.  Note. — For  other  cases,  see  Constitution- 
al Law,  Cent  Dig.  §  46 ;   Dec  Dig.  §  48.*] 

2.  Cabbigrs    (5    12*)  —  Rate    Reottlation  — 
Reasonableness— Evidence. 

When  an  attempt  is  made  to  strike  down 
a  rate  statute,  it  is  incumV-eut  on  the  attackr 
ing  party  to  make  full,  fair,  and  complete  dis- 
closure of  all  of  the  revenue  derived  from  the 
business,  and  the  disbursement  of  the  same  for 
all  purposes,  including  salaries  paid  to  all  ^ 
its  cfScers,  agents,  and  employes,  so  that  It 
may  be  determined  whether  suck  salaries  and 
expenditures  are  necessary  as  well  as  reasona- 
ble in  amount 

[Ed.  Note.— For  other  cases,  see  Carriers,  Dee. 
Dig.  I  12. •] 

3.  Oabsiebs  (!  12*)— Ratb  Rsoxn-ATioR— Rba.> 
BONABLENESs— Evidence. 

Before  the  courts  are  called  upon  to  ad- 
judge an  act  of  the  Legislature  fixing  maximum 
rales  for  express  companies  unconstitutional  on 
the  ground  that  they  are  unreasonable  and  con- 
fiscatory, they  should  be  fully  advised  aa  to 
what  is  done  with  the  receipts  and  earnings  ot 
the  company;  for,  if  so  advised,  It  might  clear- 
ly appear  that  a  prudent  and  honest  manage- 
ment within  the  rates  prescribed  would  secur* 
to  the  company  a  reasonable  compensation  for 
the  use  of  its  property  and  for  conducting  its 
business. 

'For  other  cases,  see  Carriers,  Dee. 


[Ed.  Note.—: 
Dig.  §  12.*] 


4.  Cabbiebs  (§  12*)— Rate  Regulation- Rea- 
sonableness—Evidence. 

A  court  of  equity  ought  not  to  interfew 
with  and  strike  down  an  act  of  the  Legislature 
fixing  maximum  express  rates,  before  a  fair 
trial  has  been  made  of  continuing  the  business 
thereunder,  and  in  advance  of  any  actual  experi- 
,ence  of  the  practical  result  of  such  rates. 

VBA.  Note. — For  other  cases,  see  Carriers,  Dec;. 
Dig.  i  12.*] 

5.  Cabbiebs   ((    18*)- Rate   Regulation  — 
Pbovince  op  Coubt. 

Where  it  reasonably  appears  from  a  con- 
sideration of  all  the  evidence  that  the  rates  com- 
plained of  are  not  confiscatory,  but  afford  the 
express  company  at  least  some  measure  of  prof- 
it for  carrying  on  its  business,  the  courts  will 
not  interfere  with  the  operation  of  the  statute, 
but  will  require  the  party  complaining  to  ap- 
ply for  relief  to  the  rate-making  power, :  or  the 
tribunal  provided  by  the  statute  with  power  to 


•ror  otlwr  e«Ma  u»  Mma  topic  and  lacUon  NUMBBH  tn  Dm.  *  Am.  Olsi.  1107  to  date,  *  ReporUr  IndeiM 


Digitized  by  VjOOQ  l€ 


692 


122  MORTHWESTEBN  BBPOBXBB. 


QXOk 


increase  sach  rate*,  if  they  are  alleged  to  be  nn- 
reasonable. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent.  Die  {{  IS,  16-18,  20,  24;    Dec.  Dig.  t 

a  STATtTTEB  ((  M*)— Pabhai.  Ihvauditt  — 

EInrECT. 

A  rate  statute  will  not  be  declared  uncon- 
stitutional on  the  ground  that  It  provides  dras- 
tic i)enaltie8  for  its  violation,  unless  it  appears 
that  the  penalty  clause  was  the  inducement 
for  its  passage,  and,  with  that  clause  eliminated, 
the  remainder  of  the  act  is  incomplete  and  in- 
capable of  enforcement 

[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent.  Dig.  8S  58-^,  195;  Dee.  Dig.  S  64.»] 

(Syllabus  by  the  Ck>urt.) 

Original  action  in  the  Supreme  Court  by 
the  State  of  Nebrasica  against  the  Adams 
Express  Company.    Judgment  for  plaintiff. 

See,  also,  80  Neb.  840,  115  N.  W.  625. 

W.  T.  Thompson,  Atty.  Gen.,  for  the  State. 
Lawrence  Maxwell,  Frank  H.  Piatt,  J.  L. 
MlnnlB,  T.  B.  Harrison,  Jr.,  Chaa  W.  Stoclt- 
ton,  Geo.  W.  Field,  Balph  W.  Breckenridge, 
and  Chas.  J.  Greene^  for  defendant 

BARNES,  J.  Thls^ls  an  action  in  equity 
by  which  the  state  of  Nebraska,  as  plain- 
tiff, has  invoked  tUe  original  Jurisdiction  of 
this  court  to  enjoin  the  defendant  (the  Adams 
Express  (Company)  from  charging  or  re- 
ceiving for  services  between  places  In  Ne- 
braska any  sum  in  excess  of  75  per  cent  of 
certain  charges  exacted  by  defendant  under 
its  Bdiedule  of  rates  in  force  on  the  Ist 
day  of  January,  1907.  The  reduction  of  rates 
In  question  was  sought  to  be  accomplished 
by  an  act  of  the  legislative  assembly  of  that 
year  (Laws  1907,  p.  339,  c.  91),  which  reads 
as  follows:  "All  persons,  associations  or  cor- 
porations engaged  in  the  transportation  of 
money  or  merchandise  for  a  money  consider- 
ation in  cars  other  than  freight  cars  and  on 
trains  other  than  freight  trains  shall  be 
deemed  an  express  company  within  the  mean- 
ing of  this  act  Within  thirty  days  after 
tbe  passage  and  approval  of  this  act,  all 
express  companies  doing  business  in  this 
state  shall  file  with  the  railroad  commission 
a  complete  schedule  of  tbe  rates  and  classi- 
fications charged  for  tbe  transportation  of 
money  or  merchandise  within  this  state  by 
such  company,  which  was  in  force  on  tbe 
first  day  of  January,  A.  D.  1907.  Express 
companies  may  charge  and  receive  for  the 
transportation  of  merchandise  within  tbe 
state  of  Nebraska  any  sum  not  exceeding 
seventy-five  per  cent,  of  the  rate  as  shown  in 
the  schedule  provided  for  in  section  2  of 
this  act  until  after  the  State  Bailway  Com- 
mission shall  have  provided  a  greater  rate. 
Provided  that  nothing  in  this  act  shall  be 
construed  to  change  the  prepaid  rates  on 
merchandise  weighing  one  (1)  pound  or  less, 
and  provided  further,  that  no  provision  of 
this  act  shall  reduce  any  special  contract 
rate  In  force  for  the  transportation  of  cream. 


milk,  or  poultry  or  any  charge  to  a  sum  less 
than  fifteen  cents;  and  provided  further,  that 
nothing  in  this  act  shall  abridge  the  authori- 
ty of  the  Ballroad  Commission  to  make  a  re- 
duction in  any  rate  provided  for  In  this  act 
If  any  express  company  shall  fall  to  com- 
ply with  the  provisions  and  conditions  of 
this  act  they  shall  be  fined  on  conviction  a 
sum  not  less  than  ten  dollars  or  more  than 
one  thousand  for  each  offense,  '^be  Ne- 
braska State  Ballroad  Commission,  and  if 
there  be  no  commission,  then  the  Governor 
with  the  assistance  of  the  Attorney  General, 
are  hereby  empowered  to  enforce  tbe  provi- 
sions of  this  act"  Tbe  act  above  quoted 
was  passed  by  the  Legislature,  in  the  ex- 
ercise of  the  power  of  the  state,  to  regulate 
defendant  as  a  common  carrier  of  express 
matter  or  articles  of  commerce  between  plac- 
es in  Nebraska.  Defendant  threatened  to 
disobey  tbe  law,  to  prevent  tbe  state  from 
controlling  its  internal  commerce  on  defend- 
ant's lines  of  transportation  between  places 
in  Nebraska,  and  to  charge  and  collect  for 
Intrastate  services  compensatl(Mi  in  excess 
of  the  maximum  rates  fixed  by  tbe  Legisla- 
ture. The  Attorney  General  thereupon  com- 
menced this  action,  and  obtained  a  restrain- 
ing order  preventing  tbe  defendant  from 
carrying-out  its  threat  of  disobedience.  Ear^ 
ly  in  the  history  of  the  litigation  defendant 
challenged  the  Jurisdiction  of  the  court  and 
filed  a  petition  and  bond  for  removal.  The 
record  was  thereupon  lodged  in  the  Circuit 
Court  of  the  United  States  for  the  federal 
district  of  Nebraska,  where  the  defendant 
was  unable  to  sustain  its  contention,  and 
the  cause  was  remanded  to  this  court  On 
proper  pleas,  and  after  a  full  hearing,  the 
Jurisdiction  of  the  court  and  tbe  right  of 
the  state  to  maintain  the  action  were  sas- 
talned.  State  v.  Adams  Express  Co.,  80 
Neb.  840,  115  N.  W.  625;  State  v.  Pacific 
Express  Co.,  80  Neb.  823,  115  N.  W.  619. 
Having  finally  adjudicated  those  questions, 
they  will  not  again  be  referred  to  in  this 
opinion. 

After  tbe  settlement  of  the  preliminary 
questions  the  defendant  filed  its  answer, 
alleging  among  •other  things:  First,  that  a 
horizontal  cut'  of  25  per  cent  of  its  rates  was 
impractical  and  unreasonable;  that  tbe  rates 
thus  fixed  by  the  statute  are  confiscatory; 
that  the  defendant  is  thereby  deprived  of  its 
right  to  a  reasonable  profit  on  its  business 
and  Its  property  investment  and  therefore 
tbe  act  is  unconstitutional;  second,  that 
the  penalties  provided  by  the  act  for  a  vio- 
lation of  its  provisions  are  so  unreasonable^ 
excessive,  and  drastic  as  to  prevent  the  de- 
fendant from  securing  a  Judicial  inquiry  In- 
to the  validity  of  the  statute  without  in- 
curring a  prohibitive  risk,  and  that  they, 
therefore,  constitute  a  violation  of  the  equal- 
ity clause  of  the  fourteenth  amendment  of 
the  federal  Constitution.    The  allegations  of 


*ror  other  eases  s««  tarn*  toplo  and  section  NUMBER  In  Doe.  *  Am.  Diss.  IIOT  to  date,  *  Boportar  IndexM 

Digitized  by  VjOOQ  l€ 


Neb.) 


STATE  ▼.  ADAMS  EXPRESS  CO. 


693. 


the  answer  were  controyerted  by  a  reply, 
and  after  the  issnes  were  thus  Joined  the 
Honorable  John  J.  Sullivan  was  appointed  as 
a  referee  to  take  and  report  the  evidence,  to- 
gether with  hl8  conclusions  of  facta  and  law 
to  the  court,  with  all  convenient  speed.  A 
large  amount  of  testimony  was  taken,  which 
is  now  before  us,  together  with  the  referee's 
report  His  findings  of  facts  were  general- 
ly for  the  plaintiff,  and  his  conclusions  of 
law  are  as  follows:  "My  «oncluBlons  of  law 
are:  First,  that  the  Sibley  act  (which  la 
the  statute  in  question),  so  far  as  it  affects 
the  boainess  of  the  Adams  Express  Company, 
la  not  confiscatory;  second,  that  Judgment 
on  the  merits  should  be  rendered  in  favor  of 
the  state  and  against  the  defendant  com- 
pany." To  this  report  the  defendant  has  fil- 
ed exceptions  so  volnminoas  that  to  quote 
them  would  extend  this  opinion  to  an  un- 
reasonable length;  but  such  of  them  as  are 
necessary  to  a  correct  disposition  of  the 
case,  together  with  the  particular  findings 
of  fact  to  which  they  refer,  will  be  no- 
ticed, considered,  and  decided  under  proper 
subdivisions.  The  case  has  been  argued  and 
submitted  on  its  merits,  and  therefore,  if  the 
rQ>ort  of  the  referee  Is  sustained.  Judgment 
most  be  entered  for  the  state;  while  on 
the  other  hand,  If  the  exceptions  are  allow- 
ed, we  may  make  such  disposition  of  the 
case  as  we  think  the  evidence  requires. 

Defendant  first  excepts  to  the  report  as 
a  whole,  and  particularly  to  the  findings  of 
fact,  contained  therein,  "Because  the  same 
are  not  sustained  by  the  evidence."  The 
determination  of  the  question  thus  raised 
requires  a  careful  examination  of  the  testi- 
mony taken  by  the  referee.  In  making  the 
investigation  we  start  with  the  presumption 
that  the  statute  in  question  is  a  valid  and 
cbustitutlonal  exercise  of  legislative  power. 
Reagan  v.  Farmers'  Loan  &  Trust  Co.,  154 
U.  S.  362-S95,  14  Sup.  Ct  1047,  38  L.  Ed. 
1014;  Ex  parte  Young,  209  U.  S.  126,  28 
Sup.  Ct.  441,  62  L.  Ed.  714,  IS  L.  R.  A.  (N. 
S.)  932.  The  concurring  opinion  of  Field, 
J.,  in  Buggies  v.  Illinois,  108  U.  S.  641,  2 
Sup.  Ct.  832,  27  L.  Ed.  812;  State  v.  F.,  B. 
&  M.  V.  R.  Co.,  22  Neb.  313,  35  N.  W.  118; 
Davis  T.  State,  51  Neb.  301,  70  N.  W.  984, 
In  the  case  last  cited  the  rule  is  well  stated 
as  follows:  "Every  legislative  act  comes 
l>efore  this  court  surrounded  with  the  pre- 
sumption of  constitutionality,  and  this  pre- 
sumption continues  until  the  act  under  re- 
view clearly  appears  to  contravene  some  pro- 
vision of  the  Constitution."  This  rule  plac- 
es the  burden  of  proof  on  the  defendant; 
and,  before  we  can  strike  down  the  statute, 
It  must  show  by  a  preponderance  of  the 
evidence  that  the  rates  fixed  thereby  are 
so  low  as  to  be  clearly  confiscatory.  Chi- 
cago, M.  A  St  P.  By.  Co.  v.  Tompkins,  176 
U.  8.  167-173,  20  Sup.  Ct  836,  44  U  Ed. 
417;    Ex  parte  Young,  supra. 

The  facts  of  this  case,  which  are  not  in 
dispute,  are  that  the  defendant  la  a  common 


carrier;  it  operates  in  28  states,  and  upon 
34,862  miles  of  railroad  and  other  lines  of 
transportation;  It  is  not  Incorporated,  but 
Is  a  Joint-stock  company;  it  has  a  capital 
stock  of  912,000,000,  divided  Into  120,000 
shares,  which  are  owned  by  2,700  sharehold- 
ers, whose  identity  is  not  disclosed.  The 
territory  in  which  it  operates  is  divided  into 
three  departments.  The  western  department, 
which  Includes  Nebraska,  is  operated  over 
18,662  miles  of  transportation  lines.  The 
Nebraska  mileage,  all  of  which  is  upon  the 
Burlington  lines,  is  2,514  milea  The  compa- 
ny has  272  offices  in  this  state  and  about  450 
employes.  The  value  of  the  property  employ- 
ed in  carrying  on  its  entire  business  Is  not 
disclosed,  but  the  estimated  value  of  the  por- 
tion devoted  to  the  service  in  Nebraska  is 
between  $60,000  and  (60,000.  The  gross  reve- 
nues of  the  company  upon  all  of  its  lines 
for  the  year  ending  December  31,  1007,  were 
$27,822,788.2a  Its  operating  expenses  for 
the  same  period  were  $27,356,346.17,  leaving 
a  net  profit  of  $466,303,  or  1.6  per  cmt  of 
the  gross  receipts. 

Assuming  the  burden  of  proof  above  men- 
tioned as  to  the  remaining  facts,  the  defend- 
ant produced  as  witness  Mr.  Olenn,  the  audi- 
tor of  the  western  department,  and  Mr.  Wa- 
ters, the  general  auditor  of  the  company,  and 
as  a  summary  of  their  evidence,  has  placed 
in  the  record  its  Exhibit  6.  This,  after  hav- 
ing been  revised  by  counsel  to  correct  errors, 
shows  that  the  business  of  the  company  in  this 
state  for  the  year  ending  December  31,  1907, 
resulted  In  a  net  Income  of  $12,689.94.  Those 
witnesses  were  afterwards  recalled,  and  an 
attempt  was  made  to  show  by  them  that  the 
terminal  expenses  properly  chargeable  to 
Nebraska  business  would  reduce  the  net  earn- 
ings of  the  company  for  the  year  1007  to 
approximately  $8,216.03.  The  plaintiff,  how- 
ever, challenges  the  truth  of  this  evidence, 
and  claims  by  Its  construction  of  Exhibit  5 
that  the  net  earnings  of  the  defendant  in 
this  state  for  the  year  1907  were  in  fact 
$14,336.29,  or  approximately  5^  per  cent  of 
its  gross  earnings.  It  will  be  observed  by 
an  examhiation  of  the  original  Exhibit  5  that 
the  defendant  has  built  up  an  estimate  of 
what  it  conjectures  would  have  been  the 
result  on  the  business  of  1907  had  the  statute 
In  qifestlon  then  been  in  efTect  By  asauming 
that  there  would  have  been  no  Increase  In 
the  business,  that  all  of  the  general  ex- 
penses and  office  salaries  would  have  re- 
mained exactly  the  same,  defendant  contends 
that  it  would  have  lost  $14,812.65  on  the 
business  of  that  year.  In  this  calculation, 
however,  no  account  has  been  taken  of  the 
money-order  business,  and  It  has  been  as- 
sumed that  only  $15,000  of  the  total  re- 
venue would  have  been  unaffected  by  the  rate 
reduction.  It  is  further  assumed  that  the 
new  rate  would  not  have  added  anything 
whatever  to  the  gross  revenue  of  the  com- 
pany.  It  is  also  erroneously  claimed  that  the 


Digitized  by  VjOOQ  l€ 


122  KOBTHWESTBRN  BEPOBTEB. 


(N^ 


espensea  wojald  not  be  reduced  or  affected 
by  reason  of  the  reduction  in  rates.  Again, 
It  appears  that  the  defendant  made  no  de- 
duction from  the  expenses  charged  to  the 
Nebraska  business  for  that  portion  of  the 
general  expense  which  It  incurred  in  con- 
ducting its  through  business,  business  which 
neither  originated  nor  terminated  In  Ne- 
braslia,  and  which  is  called  its  overhead 
business.  By  these  devices  the  defendant 
has  attempted  to  show  that.  If  the  statutory 
rates  were  in  force  for  the  year  1908,  it 
would  lose  on  its  Nebraska  Intrastate  busi- 
ness 115,812.65. 

It  may  be  conceded  that  by  loading  the 
Nebraska  intrastate  business  with  a  suffi- 
cient amount  of  so  called  terminal  expenses, 
together  with  a  proi  ortlonate  amount  of  the 
expenses  of  adminis  ^j-ation.  It  is  possible 
to  show  that  the  Nebraska  business  for 
1907  was  conducted  at  a  loss,  which  loss 
would  be  increased  for  the  year  1908;  but 
the  evidence  introduced  for  that  purpose  is 
not  convincing.  It  must  be  borne  in  mind 
that  prior  to  the  passage  of  the.  Sibley  act 
the  defendant  had  with  a  free  band,  made 
Its  own  rates  and  charges,  and  it  is  not 
to  be  believed  that  it  had  voluntarily  made 
a  rate  under  which  it  had  been  conducting 
its  Nebraska  business  without  profit  for 
more  than  a  generation.  The  findings  of  the 
referee  that  the  defendant's  business  in 
Nebraska  for  the  year  1907  was  remunerative 
seems  to  be  warranted  by  the  evidence,  ac- 
cords with  sound  reason,  and  is  therefore 
sustained. 

Coming  now  to  a  consideration  of  defend- 
ant's Nebraska  intrastate  business  for  the 
year  1908,  we  find  that  the  company  has 
introduced  In  evidence  a  statement  of  its 
transactions  for  the  month  of  June  of  that 
year,  which  it  has  used  as  a  basis  of  its 
claim  or  contention  that  the  rates  fixed  by 
the  statute  are  confiscatory.  We  are  of 
opinion,  however,  that  this  evidence  does 
not  furnish  a  satisfactory  test  of  the  effect 
of  the  act,  and  is  not  worthy  of  serious  con- 
sideration. At  the  time  defendant  closed 
its  testimony  and  rested  its  case  the  statute 
bad  been  in  force  for  at  least  16  months, 
and  the  result  of  the  rates  fixed  thereby 
could  have  been  clearly  and  accurately 
shown.  Yet  the  company  declined  to  make 
such  a  showing,  and  rested  its  case  on  con- 
jecture, assumption,  and  InsufBclent  compari- 
son. We  are  therefore  of  opinion  that  this 
showing  does  not  meet  the  burden  of  proof 
which  the  law  places  upon  the  defendant. 
On  the  other  hand,  the  plaintiff  has  shown, 
from  the  monthly  reports  made  by  the  de- 
fendant company  to  the  Nebraska  State 
Railway  Commission  up  to  and  including 
the  mouth  of  October  of  the  year  1908,  that 
the  reduction  complained  of  has  resulted 
In  a  large  increase  of  defendant's  intrastate 
business  without  a  corresponding  increase 
of  expenses,  and  has  produced  a  net  income 
amounting  to  more  than  4  per  cent  of  its 


gross  receipts,  exclusive  of  its  money-order 
business.  It  also  appears  that  if  that  Item 
is  added  to  the  ordinary  earnings  of  the 
company,  and  we  agree  with  the  referee 
that  it  should  be  so  added,  its  profit?  will  be 
increased  to  about  5.5  per  cent.  Surely 
this  is  not  confiscation,  and  the  rate  com- 
plained of  is,  at  least  to  a  considerable  ex- 
tent, remunerative. 

It  is  claimed,  howevec,  that  the  referee  has 
arrived  at  the  foregoing  results  by  an  Im- 
proper method  of  apportioning  expenses  to 
the  Intrastate  business,  and  this  seems  to 
be  the  main  contention  between  the  parties. 
It  appears  that  the  referee  has  apportioned 
the  expenses  on  a  revenue  basis,  while  the 
defendant  insists  that  the  only  correct  method 
of  apportionment  is  the  transaction  or  pack- 
age basis.  The  referee  has  found,  from  an 
estimate  for  the  year  1907,  based  on  an  ac- 
tual count  for  the  months  of  March  and 
September,  that  there  were,  for  that  year, 
1,698,752  handlings  of  domestic,  and  1,003,648 
handlings  of  interstate,  transactions.  In 
other  words,  that  the  hapdlings  of  domestic 
transactions  were  62.8  per  cent  of  all  of  the 
handlings  within  the  state.  It  Is  now  con- 
tended by  the  defendant  that  the  item  of 
terminal  cost  ought  to  have  been  distributed 
according  to  the  ratio  which  the  domestic 
handlings  bear  to  the  interstate  handlings. 
The  referee  has  found,  and  this  is  not  con- 
tested, that  these  items  aggregate  $146,231.91, 
which  distributed  on  the  (lasis  proposed 
would  result  in  chargring  the  domestic  busi- 
ness, which  produced  a  revenue  of  f  277,726.76, 
with  $91,833.36,  and  the  interstate  business, 
which  produced  a  revenue  of  $655,027.52, 
with  only  $54,398.2%  This  would  make  the 
terminal  cost  of  the  domestic  business  33  per 
cent,  of  the  revenue  derived  from  it  and  the 
terminal  cost  of  the  interstate  business 
would  be  only  8.3  per  cent  of  the  revenue 
received  therefrom.  As  was  said  by  the  ref- 
eree, "An  apportionment  according  to  this 
method  shows  that  the  defendant  carried  on 
its  Intrastate  business  in  1907  at  a  loss  of 
approximately  $12,000."  This,  to  say  the 
least,  is  Incredible.  The  fact  as  we  have 
above  stated,  that  the  defendant  before  the 
passage  of  the  act  In  question,  had  been  un- 
restrained In  fixing  its  rates  causes  us  to 
doubt  the  correctness  of  this  method  of  ap- 
portionment ;  and,  while  we  do  not  hold  that 
a  fair  distribution  of  expenses  cannot  be 
made  on  the  package  basis,  we  are  of  opin- 
ion, for  many  reasons,  that  the  apportion- 
ment of  expenses  on  a  revenue  basis  affords 
the  easiest  and  most  practicable  solution  of 
this  difficult  question. 

We  also  find  from  the  evidence  that  the 
defendant  has  in  many  ways  pursued  and 
offered  sanction  for  this  method.  Indeed, 
until  this  contention  arose,  It  seems  to  have 
considered  its  business  throughout  the  whole 
country  as  an  entirety,  and  to  have  deduct- 
ed its  expenses,  and  calculated  its  profits, 
on  the  revenue  basis.    Again,  it  U  a  well- 


Digitized  by  VjOOQ  l€ 


Neb.) 


STATE  V.  ADAMS  EXPRESS  CX> 


693 


known  fact  that  the  expense  of  a  partlcnlar 
transaction  may  not  be,  and  often  Is  not, 
the  same  at  the  point  of  shipment  as  at  the 
point  of  destination.  The  amount  paid  by 
defendant  to  its  agents  at  Its  different  points 
for  the  same  handling  Is  not  always  the 
same.  To  Illustrate,  suppose  a  shipment 
originates  at  an  o£ace  where  the  pick-up  and 
delivery  system  is  in  operation,  and  termi- 
nates at  a  point  where  that  method  Is  not 
pursued,  but  where  the  consignee  is  required 
to  visit  the  express  office  in  order  to  obtain 
the  consignment.  In  such  a  case  to  double 
tlie  charge  at  either  i>olnt  would  not  produce 
the  correct  amount  of  terminal  expense.  For 
further  illustration,  suppose  a  package  is 
shipped  from  an  office  where  the  agent  re- 
ceives as  his  compensation  a  commission  of, 
say,  10  per  cent,  of  the  amount  charged  for 
the  shipment,  while  the  receiving  office  Is  in 
charge  of  an  agent  who  receives  a  salary.  In 
such  a  case-it  would  be  impracticable  and  in- 
correct to  double  the  amount  of  the  agent's 
commission  at  the  shipping  office  to  obtain  the 
amount  of  terminal  expenses  of  that  trans- 
action. It  further  appears  that  the  largest 
item,  to  wit,  966,403.07  commission  paid  to 
agents,  has  no  relation  at  all  to  the  number 
of  pieces  handled,  but  is  based  entirely  upon 
the  revenue  derived  from  the  business  trans- 
acted at  their  offices.  It  is  also  inferable 
from  tbe  evidence  that  agents'  salaries,  an 
item  amounting  to  $8,582,  are  based  to  some 
extent  upon  revenue.  So  we  do  not  see  how, 
upon  this  record.  It  can  l>e  held  as  a  matter 
of  law  that  terminal  expenses  must  be  dis- 
tributed upon  the  package  basis,  and  not 
otherwise. 

For  the  foregoing  reasons  we  are  con- 
strained to  sustain  the  finding  of  the  referee 
which  adopts  the  revenue  basis  for  a  distri- 
bution of  terminal  charges. 

In  concluding  the  discussion  of  this  ques- 
tion it  must  be  borne  in  mind  that,  where  an 
attempt  Is  made  to  strike  down  a  rate  stat- 
ute, it  Is  Incumbent  on  the  party  complaining 
to  make  full,  fair,  and  complete  disclosure. 
Now,  while  It  appears  from  a  careful  read- 
ing of  the  evidence  that  In  many,  and  per- 
haps most,  things  the  defendant  has  made 
full  and  fair  disclosure,  still  in  some  matters 
it  lias  failed  to  do  so.  We  find  that  there  is 
a  large  sum  charged  to  the  intrastate  busi- 
ness as  expenses  of  administration.  We  are 
told  that  this  includes  the  salaries  of  the 
defendant's  general  officers.  It  appears  that 
the  company  has  declined  to  state  the  salary 
of  a  single  one  of  such  officers,  and  we  are 
wholly  without  any  knowledge  as  to  the 
amount,  much  less  the  reasonableness,  of 
such  salaries.  Under  a  showing  of  this  kind 
tbe  defendant  could,  without  danger  of  de- 
tection or  even  adverse  criticism,  load  the 
Nebraska  state  business  with  an  expense 
which  would  render  it  so  unremunerative  as 
to  require  us  to  strike  down  the  act  In  ques- 
tion. Again,  it  appears  that  the  defendant 
is  a  Joint-stock  company,  and  it  is  fair  to 


presume,  in  the  absence  of  disclosure  and 
proof  to  the  contrary,  that  a  majority  of  Its 
stock  is  held  and  owned  by  Its  officers  and 
directors.  In  such  a  case  salaries  could 
readily  be  made  so  exorbitant  unreasonable, 
and  excessive  that  by  charging  to  the  intra- 
state business  a  proportionate  amount  there- 
of that  business  would  appear  to  be  unre- 
munerative. 

Finally,  the  evidence  shows  that  the 
amount  paid  to  the  Burlington  railroad  for 
transportation  for  the  year  1907  was 
$159,727.76,  or  57.5  per  cent  of  the  gross  re- 
ceipts from  domestic  business.  This  ap- 
pears to  be  a  larger  percentage  than  is  paid 
to  any  other  railroad  for  like  services.  It 
may  be  an  entirely  proper  charge,  or  it  may 
be  an  unreasonable  exaction,  and  there  is 
no  evidence  In  the  record  tending  to  estab- 
lish either  proposition.  Counsel  for  the  de- 
fendant assert  that  its  contract  with  the 
Burlington  road  was  the  result  of  competi- 
tive bidding.  This  may  be  so,  but  it  Is  not 
proven,  and,  if  it  were  proven,  would  not  es- 
tablish per  se  the  reasonableness  of  the 
charge.  The  public  Is  entitled  to  have  its 
commodities  carried  at  fair  rates,  and  can. 
not  be  subjected  to  excessive  charges  by  an; 
arrangement  between  tbe  railroad  and  the 
express  company.  If  a  railroad  farms  out 
the  express  business,  it  must  be  on  terms  that 
will  enable  the  express  carrier  to  operate  at 
a  profit  without  imposing  excessive  charges 
upon  its  patrons.  Any  contract  which  will 
not  permit  this  to  be  done,  whether  it  be  tbe 
result  of  competitive  bidding  or  not  Is  void, 
In  so  far  as  it  affects  the  rights  of  the  pub- 
lic. 

For  the  foregoing  reasons  we  are  of  opin- 
ion that  the  defendant  has  failed  to  show  by 
competent  evidence  a  fair  and  full  disclosure 
that  the  rates  in  question  are  confiscatory, 
and  its  exceptions  upon  this  point  are  there- 
fore overruled. 

Having  sustained  the  report  of  the  referee 
as  to  the  main  facts  of  this  controversy,  we 
come  now  to  the  consideration  of  his  conclu- 
sions of  law.  It  appears  that  a  like  question 
was  before  the  federal  Supreme  Court  In  Will- 
cox  V.  Consolidated  Gas.  Co.  of  New  Tork,  212 
U.  S.  19,  29  Sup.  Ct  192,  53  Ii.  Ed.  382,  where 
It  was  held  that  a  court  of  equity  ought  not 
to  Interfere  by  injunction  with  state  legisla- 
tion fixing  gas  rates,  before  a  fair  trial  has 
been  made  of  continuing  the  business  under 
such  rates ;  and  the  case  must  be  a  clear  one 
before  the  courts  should  be  asked  to  inter- 
fere by  injunction  with  state  legislation  regu- 
lating gas  rates  in  advance  of  any  actual  ex- 
perience of  the  practical  results  of  such  rates. 
That  case  is  an  Instructive  one,  and  many  of 
the  questions  involved  in  the  case  at  bar 
were  there  litigated  and  determined  adverse- 
ly to  the  defendant's  contention  herein.  Sim- 
ilar questions  were  also  before  that  court  in 
the  city  of  Knoxvllle  v.  Knoxvllle  Water  Co., 
212  U.  S.  1,  28  Sup.  Ct  148.53  Xi.  Ed.  371,  &ud 


Digitized  by 


Google 


696 


122  KORTHWESTEBN  BEPORTEB. 


(Ketk 


It  was  there  said:  "The  courts  should  not 
enjoin  th«  enforcement  of  a  municipal  ordi- 
nance fixing  the  maximum  water  rates  on  the 
ground  that  such  ordinance  Is  Invalid  under 
U.  S.  Const  14th  Amend.,  as  confiscatory, 
unless  the  confiscation  is  clearly  apparent." 
The  case  of  Chicago  &  Grand  Trunk  Ry. 
Co.  V.  Wellman,  143  U.  S.  339,  12  Sup.  Ct 
400,  36  L.  Ed.  176,  was  one  to  test  the  valid- 
ity of  an  act  of  the  Legislature  of  the  state 
of  Michigan,  fixing  a  maximum  rate  of  pas- 
senger fare.  It  was  contended  in  that  case 
that  the  rate  was  confiscatory.  Mr.  Justice 
Brewer  delivered  the  opinion  of  the  court, 
from  which  we  <iuote  as  follows:  "Is  the 
validity  of  a  law  of  this  nature  dependent 
upon  the  opinion  of  two  witnesses,  however 
well  qualified  to  testify?  Must  court  and 
Jury  accept  their  opinions  as  a  finality? 
Must  it  be  declared,  as  matter  of  law,  that  a 
reduction  of  rates  necessarily  diminishes  In- 
come? May  it  not  be  possible — indeed,  does 
not  all  experience  suggest  the  probability — 
that  a  reduction  of  rates  will  increase  the 
amount  of  business,  and  therefore  the  earn- 
ings? At  any  rate,  must  the  court  assume 
that  it  has  no  such  effect,  and,  ignoring  all 
other  considerations,  hold,  as  matter  of  law, 
that  a  reduction  of  rates  necessarily  dimin- 
ishes the  earnings?  If  the  validity  of  such  a 
law  In  its  application  to  a  particular  com- 
pany depends  upon  a  question  of  fact  as  to 
its  effect  upon  the  earnings,  may  not  the 
court  properly  leave  that  question  to  the 
Jury,  and  decline  to  assume  that  the  effect 
is  as  claimed?  There  can  be  but  one  answer 
to  these  questions.  If  the  contention  be  that 
the  Legislature  has  no  power  In  the  matter, 
and  that  an  act  fixing  rates,  however  high 
they  may  be,  is  necessarily  unconstitutional, 
ft  is  enough  to  refer  to  the  long  series  Of 
cases  in  this  court  in  which  the  contrary  has 
been  decided."  Concluding  the  opinion  Judge 
Brewer  said:  "Surely,  before  the  courts  are 
called  upon  to  adjudge  an  act  of  the  Legis- 
lature fixing  the  maximum  passenger  rates 
for  railroad  companies  to  be  unconstitution- 
al, on  the  ground  that  its  enforcement  would 
prevent  the  stockholders  from  receiving  any 
dividends  on  their  investments,  or  the  bond- 
holders any  interest  on  their  loans,  they 
should  be  fully  advised  as  to  what  is  done 
with  the  receipts  and  earnings  of  the  com- 
pany ;  for',  if  so  aidvlsed,  it  might  clearly  ap- 
pear that  a  prudent  and  honest  management 
would,  within  the  rates  prescribed,  secure  to 
the  bondholders  their  Interest,  and  to  the 
stockholders  reasonable  dividends.  While 
the  protection  of  vested  rights  of  property 
is  a  supreme  duty  of  the  courts,  it  has  not 
come  to  this  that  the  legislative  power  rests 
subservient  to  the  discretion  of  any  railroad 
corporation,  which  may,  by  exorbitant  and 
unreasonable  salaries,  or  in  some  other  im- 
proper way,  transfer  its  earnings  Into  what 
it  is  pleased  to  call  'operating  expenses.' 
•  •  •  The  silence  of  the  record  gives  us 
no  information,  and  we  have  no  knowledge 


outside  thereof,  and  no  suspicion  of  wrong. 
Our  suggestion  is  only  to  Indicate  how  easUy 
courts  may  be  misled  into  doing  grievous 
wrong  to  the  public,  and  how  careful  they 
should  be  to  not  declare  l^islatlve  acts  on- 
constitutional  upon  agreed  and  general  state- 
ments, and  without  the  fullest  disclosure  of 
all  material  facts." 

In  the  case  at  bar  counsel  have  devoted  a 
considerable  part  of  their  brief  to  a  eulogy 
of  the  ability,  probity,  and  integrity  of  their 
witnesses.  By  this  opinion  we  do  not  Intend 
to  in  any  manner  refiect  upon  the  character 
of  the  oflBcers  of  the  express  company,  but 
confine  ourselves  to  the  belief  that  full  dis- 
closure has  not  been  made. 

We  think  our  decision  herein  should  be  ml' 
ed  by  the  principles  announced  in  the  fore- 
going cases,  rather  than  by  the  case  of  Cot- 
ting  V.  Kansas  City  Stockyards  Co.,  183  U. 
S.  79,  22  Sup.  Ct  SO,  46  L.  Ed.  02,  which  Is 
cited  and  relied  on  by  counsel  for  the  de- 
fendant. In  that  case  the  service  was  roi- 
dered  by  the  owners  of  property  in  such  a 
position  that  the  public  had  simply  an  inter- 
est in  its  use,  while  In  the  present  case  the 
defendant  has  devoted  its  property  to  the  dis- 
charge of  a  public  service.  It  should  also 
be  remembered  that  the  Judiciary  ought  not 
to  interfere  with  the  collection  of  rates  es- 
tablished under  legislative  sanction,  unless 
they  are  so  plainly  and  palpably  unreason- 
able as  to  make  their  enforcement  equivalent 
to  the  taking  of  property  for  public  use 
without  such  compensation  as,  under  all  the 
circumstances,  is  Just  both  to  the  owner  and 
to  the  public.  Judicial  Interference  should 
never  occur  unless  the  case  presents,  clearly 
and  beyond  all  doubt,  such  a  fiagrant  attack 
upon  the  rights  of  property,  under  the  guise 
of  regulation,  as  to  compel  the  conrt  to  say 
tliat  the  rates  prescribed  will  necessarily 
have  the  effect  to  deny  just  compensation 
for  private  property  taken  for  public  use. 
This  state  of  affairs  cannot  be  said  to  exist 
In  the  case  at  bar,  for  it  not  only  appears 
that  the  rates  fixed  by  the  statute  are  not 
confiscatory,  but  afford  defendant  a  much 
greater  percentage  of  income  on  its  Nebraska 
intrastate  business  than  that  which,  by  its 
own  testimony,  it  claims  to  receive  upon  its 
general  business  considered .  as  an  entirety. 
For  the  foregoing  reasons  the  referee's  con- 
clusions of  law  upon  this  point  are  sus- 
tained. 

Defendant  further  contends  that  the  act 
in  question  is  unconstitutional  because  of 
the  enormous  fines  which  it  imposes  for  a 
failure  to  comply  with  its  terms,  and  it  Is 
thereby  denied  the  equal  protection  of  the 
law.  It  Is  a  sufficient  answer  to  this  conten- 
tion to  say  that  the  act  does  not  in  any  man- 
ner deny  the  defendant  the  right  to  test  Its 
validity  in  the  courts,  and  the  reasonable- 
ness of  the  rates  fixed  thereby  are  now  by 
this  proceeding  under  Judicial  Inquiry.  It 
also  seems  clear  that  the  penalty  clause  Is 
not  a  necessary  or  inseparable  part  of  the  act 


Digitized  by  VjOOQ  l€ 


Neb.) 


STATE  T.  WELLS.  FARQO  *  00. 


697 


wlthont  wblcb  It  would  not  faavs  been  paia- 
ed.  In  such  a  case  If,  when  the  objection- 
able part  of  the  statute  Is  eliminated,  the 
balance  is  valid  and  capable  of  being  enforc- 
ed, the  valid  portion  of  the  act  will  be  up- 
held. Willcox  V.  Consolidated  Oas  Co.  of 
New  York,  supra.  This  is  a  familiar  prin- 
ciple which  has  been  often  announced  by 
this  court,  and  we  do  not  hesitate  to  say 
that  in  order  to  avoid  striking  down  the  act 
in  question  we  would,  if  necessaiy,  eliminate 
the  penalty  clause.  Scott  v.  Flowers,  61  Neb. 
820,  85  N.  W.  857;  State  v.  Stuht,  52  Neb. 
209,  71  N.  W.  041,  and  cases  there  cited. 

It  is  also  urged  by  counsel  for  the  defend- 
ant that  what  Its  property  is  worth  for  taxa- 
tion, or  what  Its  business  produced,  for  that 
purpose,  must  be  considered  or  reckoned  with 
when  the  Inquiry  Is  direct  to  the  amount  up- 
on which  a  legitimate  return  may  be  claim- 
ed. This  question  was  squarely  ptesented 
and  passed  upon  in  the  case  of  Willcox  v. 
Consolidated  Oas  Co.,  supra,  where  it  was 
said:  "The  assessed  value  for  taxation  of 
the  franchises  of  a  gas  company  furnishes 
no  criterion  by  which  to  ascertain  their  val- 
ue, when, testing  the  reasonableness  of  gas 
rates  as  fixed  by  statute,  where  the  taxes 
are  treated  by  the  company  as  part  of  its 
operating  expenses,  to  be  paid  out  of  Its 
earnings  before  the  net  amount  applicable  to 
dividends  can  be  ascertained.  The  future 
assessment  of  the  value  of  the  franchises,  it 
Is  presumed,  will  be  much  lessened  if  it  is 
seen  that  the  great  profits  upon  which  that 
value  was  based  are  largely  reduced  by  legis- 
lative action." 

Counsel  for  defendant  complain  of  the 
failure  of  the  referee  to  incorporate  in  his 
report  their  theory  of  the  case,  which  they 
have  designated  the  ultimate  facts,  and  by 
motion  have  asked  us  to  require  him  to  make 
it  a  part  of  his  findings.  We  are  of  opinion 
that  this  request  should  be  denied.  The 
statement  so  entitled  is  not  in  evidence.  It 
Is  simply  a  summary  of  the  concluBlons  of 
counsel  as  to  what  the  evidence  shows,  and 
Is  properly  made  a  part  of  their  brief.  It 
was  used  by  them  as  a  part  of  their  oral  ar- 
gument; but,  as  its  conclusions  were  repudi- 
ated by  the  referee,  he  properly  refused  to 
make  it  a  part  of  bis  report 

Finally,  upon  a  careful  consideration  of 
the  whole  case  we  are  of  opinion  that  de- 
fendant's exceptions  should  be,  and  they  are, 
overruled;  and  the  report  of  the  referee  Is 
sustained.  This  requires  us  to  enter  Judg- 
ment for  the  plaintiff,  and  this  we  do  with- 
out hesitation,  because  we  are  convinced 
from  the  evidence  that  the  rates  complained 
of  are  not  clearly  shown  to  be  confiscatory, 
but  are,  to  some  extent  at  least,  remunera- 
tive. When  this  fact  appears,  the  courts 
should  not  Interfere  to  strike  down  the  stat- 
ute, but  should  require  the  complainant.  If 
the  rates  are  deemed  to  be  too  low,  to  re- 
sort to  the  rate-making  power,  or  the  tribu- 


nal charged  with  rate  regulation  for  relief. 
The  statute  in  question  clearly  provides  that 
the  express  companies,  in  case  the  rates  fix- 
ed thereby  are  found  to  be  unreasonable, 
may  apply  to  the  Nebraska  State  Railway 
Commission  for  relief,  and  that  tribunal  is 
given  full  authority  to  Increase  such  rates. 

For  the  foregoing  reasons,  Judgment  will 
be  rendered  for  the  state,  and  the  temporary 
restraining  order  now  in  force  herein  is 
made  permanent;  but  our  Judgment  must 
be  so  construed  as  not  to  in  any  manner  in- 
terfere with  the  right  of  the  defendant  com- 
pany to  apply  to  the  State  Railway  Commis- 
sion for  a  revision  or  an  increase  of  rates,  if 
In  any  case,  it  shall  deem  them  nnreason- 
able;  and  the  power  of  that  tribunal  to 
grant  any  and  all  proper  relief  Is  not  to  be 
afTected  thereby. 

Judgment  accordingly. 

REESE,  0.  J.,  and  ROSE,  J.,  not  sitting. 


STATE  V.  WELLS,  FARGO  ft  CO. 

(No.  15,306.) 

(Supreme  Court  of  Nebraska.     Sept.  25,  1900.) 

State  v.  Aoaus  Exfbess  (To.  Followed. 
For  a  syllabus   to   each  of   the   foregoing 
cases,  see  State  v.  Adams  Express  Co.  (No.  15,- 
310)  122  N.  W.  601. 

(Syllabus  by  the  Court) 

Original  proceeding  in  the  Supreme  Court 
by  the  State  of  Nebraska  against  Wells,  Far- 
go &  Company,  a  corporation.  With  this  pro- 
ceeding were  also  decided  proceedings  en- 
titled as  follows:  State  v.  Pacific  Express 
Co.  (No.  15,307) ;  State  v.  United  States  Ex- 
press Co.  (No.  15,308) ;  State  v.  American  Ex- 
press Co.  (No.  15,309).  Judgment  for  plain- 
tiff in  each  case. 

W.  T.  Thompson,  Atty.  Gen.,  for  the  State. 
Ralph  W.  Breckenridge,  Chas.  J.  Greene, 
Lawrence  Maxwell,  Frank  H.  Piatt,  J.  L. 
Mlnnis,  T.  B.  Harrison,  Jr.,  Chas.  W.  Stock- 
ton, and  Geo.  W.  Field,  for  defendants. 

BARNES,  J.  The  foregoing  cases  were  all 
tried  at  the  same  time  and  in  the  same  man- 
ner as  the  case  of  State  v.  Adams  Express 
Co.  (No.  15,310)  122  N.  W.  691.  The  issues 
in  all  of  them  were  practically  alike,  and  the 
questions  involved  were  the  same  as  those 
decided  In  that  case.  The  findings  of  the 
referee  were  substantially  the  same  in  all 
of  the  cases. 

In  No.  15,306,  State  v.  Wells,  Fargo  ft  Com- 
pany, the  defendant  claimed  and  attempted 
to  show  by  an  estimate  based  on  its  business 
for  the  months  of  August  September,  and  Oc- 
tober of  1907  that  it  lost  on  Its  intrastate 
transactions  in  Nebraska  for  those  months 
113.85,  and  that  by  applying  the  Sibley  rates 
to  those  months  its  loss  for  1908  would  be 
1112.64.     This  estimate,  however,  does  not 


Digitized  by  VjOOQ  l€ 


698 


122  NORTHWESTERN  REPORTER, 


(Neb. 


take  Into  consideration  tbe  Increase  of  busi- 
ness resulting  from  reduced  rates,  or  tbe 
receipts  of  the  company,  from  its  sales  of 
money  orders,  which  amounted  to  $153.70. 
This  item  the  referee  finds  should  have  been 
Included  in  the  estimate,  and  we  sustain  his 
finding  on  this  point.  As  stated  in  State  v. 
Adams  Express  Company,  the  defendant's 
evidence,  and  the  estimate  by  which  it  at- 
tempted to  show  a  loss  in  conducting  Its  busi- 
ness, are  not  convincing.  On  the  other  hand, 
the  referee  has  found  from  tbe  reports  made 
by  the  defendant  to  the  Nebrasica  State  Rail- 
way Commission,  which  are  In  evidence,  and 
embrace  the  actual  operation  of  the  law  in 
question,  that  the  defendant's  business  in 
1908  was  conducted  at  a  small  profit,  even  if 
its  expenses  are  apportioned  according  to 
tbe  methods  adopted  by  Its  witnesses.  It. 
appears,  however,  that  by  the  method  adopt- 
ed by  the  referee  in  apportioning  such  ex- 
penses the  company  made,  daring  the'  year 
1908,  a  net  profit  of  11  per  cent  on  the  gross 
Income  of  its  intrastate  business.  The  excep- 
tions to  the  referee's  report  are  therefore 
overruled,  and  his  findings  are  in  all  things 
sustained. 

In  State  v.  Pacific  Express  Co.,  No.  15,307, 
it  appears  from  the  referee's  report  that  the 
evidence  introduced  by  the  defendant  fairly 
shows  that  its  net  profit  on  its  Nebraska 
Intrastate  business  for  tbe  year  ending  June 
30,  1907,  was  8.52  per  cent.  By  an  estimate 
of  tbe  effect  of  the  operation  of  the  statute 
in  question  for  the  year  1908  upon  its  intra- 
state business  for  the  year  1907,  and  not  in- 
cluding its  money-order  business,  or  allowing 
anything  for  an  increase  of  Its  business  on 
account  of  the  reduced  rates,  the  defendant 
has  attempted  to  show  that  its  business  for 
1908  was  conducted  at  a  loss.  On  the  other 
hand,  it  appears  by  actual  test  for  tbe  months 
of  April,  June,  and  July,  1908,  that  defend- 
ant's profit  on  its  gross  revenue  was  14.66 
per  cent.,  and  whether  the  terminal  cost  be 
apportioned  in  accordance  with  the  claim  of 
the  state,  or  according  to  the  method  employ- 
ed by  the  defendant,  the  net  profits  of  the 
company  upon  its  gross  intrastate  receipts, 
exclusive  of  the  money-order  business,  was 
between  9  per  cent  and  10  per  cent,  and 
including  that  business  its  net  profit  was  be- 
tween 10  per  cent,  and  11  per  cent  The  ref- 
eree's findings  in  this  case  are  therefore  sus- 
tained. 

The  report  of  the  referee  in  State  v.  United 
States  Express  Co.,  No.  15,308,  shows  that 
the  company  claims  to  have  lost,  in  1907,  up- 
on its  Nebraska  intrastate  business  $227.17, 
or  three-fourths  of  a  cent  upon  each  package 
carried,  or  1.6  per  cent  of  its  gross  receipts ; 
that  by  applying  the  Sibley  rates  to  its  1907 
business  the  company  estimates  that  Its  loss 
under  those  rates  for  1908  was  approximately 
$1,616.89,  or  14  per  cent  of  its  gross  receipts. 
Neither  defendant's  claim  nor  its  estimate 


takes  any  account  of  receipts  from  aalea  of 
money  orders,  or  increased  business  result- 
ing from  reduced  rates.  As  opposed  to  this 
estimate,  and  tbe  evidence  upon  which  It  is 
based,  the  state  lias  shown  that  the  Nebraska 
intrastate  revenue  of  tlie  company  was  $8,- 
790.75;  that,  deducting  the  expense  incurred 
in  carrying  on  the  business,  its  net  profit  was 
$223.19.  Adding  to  this  the  net  profit  on  its 
money-Order  business,  which  was  $458.91,  the 
referee  has  found  that  the  total  net  profit 
for  the  period  was  $682.10,  or  about  7  per 
cent  of  Its  gross  receipts.  We,  therefore, 
sustain  the  finding  of  the  referee  In  this  case. 

In  State  v.  American  Express  Co.,  No.  15,- 
309,  it  appears  from  the  report  of  tbe  referee 
that  the  company  claims  that  it  lost  in  1907 
upon  its  Nebraska  intrastate  business  $146.56, 
and  by  applying  the  Sibley  rates  to  the  busi- 
ness of  that  year  its  loss  for  1908  was  prac- 
tically $10,758.54,  or  9.7  per  cent,  of  its  gross 
intrastate  receipts.  This  estimate,  however, 
takes  no  account  of  Increased  business  result- 
ing from  reduced  rates.  By  the  process  of 
figuring  used  by  the  company,  and,  taking  its 
reports  to  the  State  Railway  Commission  for 
the  months  of  April  to  September,  1908,  in- 
clusive, as  an  average  six  months,  tiie  referee 
has  found  that  the  defendant  actually  re- 
ceived a  total  revenue  for  its  Nebraska  intra- 
state business  for  the  year  1908,  amounting 
to  $157,263.78 ;  that  its  total  expense  charge- 
able to  that  business  was  $150,844.74,  leaving 
a  net  Income  of  $6,419.04,  which  is  4.8  per 
cent  Of  the  gross  income  derived  from  that 
business.  It  thus  appears  tlut  the  finding  of 
tbe  referee  that  the  Sibley  rates  as  applied 
to  tbe  business  of  defendant  are  not  confis- 
catory is  correct 

In  none  of  the  foregoing  cases  is  the  value 
of  the  property  devoted  to  the  Nebraska  in- 
trastate business  disclosed  by  the  evidence; 
and,  in  the  absence  of  any  showing  to  the 
contrary,  we  must  presume  that  it  is  so  small 
in  amount  as  not  to  affect  the  conclusions 
reached  by  the  referee.  His  findings  are 
therefore  sustained. 

We  are  of  opinion  that  the  foregoing  cases 
should  be  ruled  by  State  v.  Adams  Express 
Company,  supra,  and  a  like  Judgment  will  be 
entered  in  each  of  these  cases  for  the  plain- 
tiff. The  restraining  orders  now  in  force 
are  made  permanent,  but  our  Judgment  here- 
in shall  not  in  any  manner  affect  tbe  right  of 
the  defendants,  or  any  of  them,  to  apply  to 
the  Nebraska  State  Railway  Commission  for 
an  increase  of  rates  whenever  it  shall  appear 
that  those  fixed  by  the  statute  are  con^dsca- 
tory,  or  so  unreasonably  low  as  not  to  af- 
ford them  a  fair  measure  of  profits;  and 
nothing  herein  contained  shall  abrld^  the 
ri^t  of  the  Railway  Commission  to  grant 
the  proper  relief  in  such  cases. 

Judgment  accordingly. 

REESE,  C.  J.,  and  ROSE,  J.,  not  slttlnc. 


Digitized  by 


Google 


Nebj! 


WILKINSON  ▼.  LORD. 


699 


WILKINSON  T.  LORD,  Treasurer  of  Rlchard- 

lon  Gonnty.    (No..  16,081.) 
(Supreme  0>urt  of  Nebraska.     Sept  25,  1909.) 

1.  C0W8IIT0TI0NAL   LAW    (i   48*)— STATUTES— 
PBBSClfmON  OF  Vauditt. 

In  passing  on  the  validity  of  the  act  which 
provides  a  four-year  course  of  free  high  school 
instruction  for  pupils  residing  in  districts  where 
that  privilege  is  denied,  permits  them  to  attend 
properly  equipped  schools  in  other  districts,  and 
makes  the  home  district  liable  for  payment  of 
tuition  at  the  rate  of  75  cents  a  week  for  each 
pupil,  it  will  not  be  assumed  without  pleading 
or  proof  that  the  tuition  fixed  by  the  Legisla- 
ture will  fall  below  or  exceed  the  cost  of  educat- 
ing a  nonresident  pupil. 

[Ed.  Note.— For  other  cases,  see  Constitution- 
al Law,  Cent  Dig.  {  46;   Dec.  ©ig.  {  48.»] 

2.  ScHOOu  AND  School  Districts  (|  91*)— 
Taxation  —  Statutes  —  ConstitutionaI/- 

ITT. 

In  directing  the  county  superintendent  of 
public  instruction  to  furnish  the  county  clerk 
with  the  necessary  data  for  a  levy,  when  a  school 
district  refuses  to  vote  taxes  for  free  high  school 
purpoees,  the  free  high  school  act  of  1907  (Sess. 
Laws  1907,  p.  402,  c.  121}  does  not  delegate  to 
that  school  officer  a  taxing  power  committed 
exclusively  to  school  districts  under  the  consti- 
tutional provision  that  "all  municipal  corpora- 
tions may  be  vested  with  authority  to  assess 
and  collect  taxes."    Const  art  9,  i  6. 

[Ed.  Note.— For  other  cases,  see  Schools  and 
School  Districts,  Dec.  Dig.  {  91.*] 

3.  Statutes  (J  121*)— Titu:s  and  Subjects. 

A  title  declaring  a  legislative  purpose  to 
provide  a  four-year  course  of  free  high  school 
instruction  for  pupils  residing  in  districts  where 
that  privilege  is  denied  is  broad  enough  to  cov- 
er taxation  for  the  purpose  stated  and  legisla- 
tion to  prevent  school  districts  from  defeating 
the  act  by  refusing  to  vote  taxes. 

TEd.  Note. — For  other  cases,  see  Statutes, 
Cent  Dig.  Si  127.  128;   Dec.  Dig.  i  121.*J 

4.  Statutes  (S   161*)— Auenduint— Iicpuoa- 

HON. 

The  free  high  school  law  of  1907  (Sess. 
Taws  1907,  p.  402,  c.  121)  is  an  independent 
act  and  its  validity  must  be  tested  by  the  rule 
that  changes  or  modifications  of  existing  stat- 
utes as  an  incidental  result  of  adopting  a  new 
law  covering  the  whole  subject  to  which  it  re- 
lates are  not  forbidden  by  section  11,  art.  S, 
Const,  relating  to  the  amendment  of  statutes. 
De  France  v.  Harmer,  C6  Neb.  14,  92  N.  W. 
159. 

(Ed.  Note.— For  other  cases,  see  Statutes, 
Cent  Dig.  S§  230-234;   Dec.  Dig.  {  161.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Richardson 
County;   Pemberton,  Judge. 

Action  by  Thomas  M.  Wilkinson  against 
Joshua  S.  Lord,  treasurer  of  Richardson 
county.  From  a  Judgment  for  defendant  on 
sustaining  demurrer  to  petition,  plaintiff 
appeals.     Affirmed. 

A.  E.  Oantt  and  Reavis  &  Reavis,  for 
appellant    R.  C.  James,  for  appellee. 

DEAN,  J.  The  only  question  presented  In 
this  suit  is  the  constitutionality  of  the  free 
high  school  act  of  1907  (Comp.  St  1907,  c.  79, 
Bubd.  6,  S(  5-Sb  [sections  5494-5497b];  Sess. 
Laws  1907,  p.  402,  c.  121).     The  purpose  of 


the  act  is. to  provide  a  four-year  course  of 
instruction  at  a  free  high  school  for  the 
benefit  of  pupUs  residing  in  school  districts 
which  do  not  afford  that  opportunity.  To 
make  the  legislative  purpose  effective,  a 
properly  equipped  high  school  In  any  dis- 
trict In  the  county  is  authorized  to  admit 
such  pupils  from  other  districts  in  the  same 
county,  and  the  home  district  is  made  liable 
for  payment  of  their  tuition  at  the  rate  of 
75  cents  a  week  for  each  pupil.  All  districts 
liable  for  tuition  are  authorized  to  vote 
taxes  enough  to  meet  the  obligations  thus 
Incurred,  and,  if  they  fall  to  do  so,  the 
school  board  or  county  superintendent  of 
public  instruction  is  empowered  to  furnish 
the  county  clerk  with  the  data  for  a  levy 
which  the  latter  is  authorized  to  make. 
Plaintiff  owns  40  acres  of  land  in  school 
district  42,  Richardson  county.  Three  pupils 
residing  therein  are  entitled  to  free  high 
school  instruction  in  another  district  under 
the  provision  of  the  free  high  school  law. 
On  account  of  their  tuition  the  obligation  of 
their  home  district  is  |81,  but  the  tax  au- 
thorized by  the  statute  was  not  voted.  On 
information  furnished  by  the  county  su- 
perintendent, the  county  clerk,  to  raise  the 
sum  stated,  made  a  15-mlll  levy  on  all  the 
taxable  property  In  the  district  containing 
plaintlfTs  40  acres  of  land.  Plaintiff's  share 
of  the  burden  is  75  cents,  and  he  brought 
this  suit  to  enjoin  defendant,  as  treasurer 
of  Richardson  county,  from  collecting  the 
tax.  The  suit  Is  also  brought  on  behalf  of 
other  taxpayers  similarly  situated.  The  dis- 
trict court  sustained  a  demurrer  to  the 
petition,  held  the  free  high  school  act  valid 
as  against  plaintiff's  attack,  and  dismissed 
the  action.    Plaintiff  appeals. 

1.  In  addition  to  provisions  for  educating 
at  any  properly  equipped  high  school  in  the 
county  all  duly  qualified  pupils  residing  in 
districts  which  have  not  established  a  four- 
year  high  school  course  of  study,  the  statute 
declares:  "Every  public  school  district  grant- 
ing free  public  high  school  education  to  non- 
resident pupils  under  the  provlsloua  of  this 
act  shall  receive  the  sum  of  75  cents  for 
each  week's  attendance  by  each  nonresident 
pupil  from  the  public  school  district  in  which 
the  parent  or  guardian  of  such  nonresident 
pupil  maintains  his  legal  residence.  Such 
public  school  district  is  hereby  made  liable 
for  the  payment  of  such  tuition."  Comp. 
St  1907,  c.  79,  subd.  6,  §  6.  In  attacking  the 
statute  from  which  the  foregoing  excerpt 
Is  taken  plaintiff  argues  that  the  legislation 
contravenes  the  following  provisions  of  the 
Constitution:  "The  Legislature  shall  provide 
such  revenue  as  may  be  needful,  by  levying 
a  tax  by  valuation,  so  that  every  person  and 
corporation  shall  pay  a  tax  in  proportion 
to  the  value  of  bis,  her  or  its  property,  and 
franchises,  the  value  to  be  ascertained  in  such 
manner  as  the  Legislature  shall  direct,  and 


•For  other  eases  see  same  topic  and  lection  NUMBER  In  Dec  *  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


700 


122  MOHTHWBSTBBN  BEPORTEB. 


(Nebu 


It  shall  have  power  to  tax  peddlers,  anctlon- 
eers,  brokers,  hawkers,  commission  mer- 
chants, showmen.  Jugglers,  innkeepers,  liquor 
dealers,  toll  bridges,  ferries,  insurance,  tele- 
graph and  express  interests  or  business,  ven- 
dors of  patents,  in  such  manner  as  It  shall 
direct  by  general  law,  uniform  as  to  the 
class  upon  which  it  operates."  Const  art. 
9,  {  1.  "The  Legislature  shall  have  no  pow- 
er to  release  or  discharge  any  county,  city, 
township,  town  or  district  whatever,  or  the 
Inhabitants  thereof,  or  any  corporation,  or 
the  property  therein,  from  their  or  Its  pro- 
portionate share  of  taxes  to  be  levied  for 
state  purposes,  or  due  any  municipal  cor- 
poration, nor  shall  commutation  for  such  tax- 
es be  authorized  in  any  form  whatever." 
Const  art  9,  {  4.  "The  legislature  may 
vest  the  corporate  authorities  of  cities,  towns 
and  villages,  with  power  to  make  local  im- 
provements by  si)ecial  assessment,  or  by 
special  taxation  of  property,  benefitted.  For 
all  other  corporate  purposes,  all  municipal 
corporations  may  be  vested  with  authority 
to  assess  and  collect  taxes,  but  snch  taxes 
shall  be  uniform  in  respect  to  persons  and 
property  within  the  Jurisdiction  of  the  body 
imposing  the  same."    Const  art  9,  |  6. 

PlaintUTs  priacipal  objection  to  the  free 
high  school  act  is  that  the  arbitrary  sum 
of  75  cents  a  week  for  the  tuition  of  each 
nonresident  pupil  will  fall  below  or  exceed 
the  cost  of  his  instruction,  and  that  in  ei- 
ther event  the  enactment  contravenes  the 
foregoing  constitutional  provisions,  to  the 
effect  that  the  Legislature  must  adopt  a 
system  of  revenue  under  which  every  person 
shall  pay  a  tax  in  proportion  to  the  value 
of  his  property,  that  the  Legislature  shall 
have  no  power  to  release  or  commute  taxes, 
and  that  all  taxes  for  municipal  purposes 
shall  be  uniform  In  respect  to  persons  and 
property  within  the  taxing  district  Fhdn- 
titr  reasons  that  tuition  at  the  fixed  rate  of 
75  cents  a  week,  when  excessive,  will  impose 
an  unlawful  burden  on  the  district  in  which 
the  pupil  resides,  and  that  it  will  impose  a 
like  burden  on  the  school  district  wherein 
the  nonresideqt  pupil  is  Instructed  when  It 
falls  below  the  cost  of  his  high  school  edu- 
cation. Flaintift,  therefore,  concludes  that 
the  act  cannot  be  enforced  without  violat- 
ing the  rule  requiring  uniformity  in  the  bur- 
dens of  taxation  and  forbidding  commutation 
of  taxes.  In  this  position  plaintiff  relies 
on  High  School  District  v.  Lancaster  County, 
60  Neb.  152,  82  N.  W.  381,  49  L.  B.  A.  343, 
83  Am.  St  Rep.  525.  In  that  case  the  court 
held  that  the  free  high  school  act  of  1899  was 
void.  Under  the  terms  of  section  3  thereof, 
the  county  was  required  to  pay  to  certain 
school  districts  maintaining  high  schools 
tuition  at  the  rate  of  75  cents  a  week  for 
each  nonresident  pupil.  The  ground  on 
which  the  enactment  was  assailed  Is  stated 
in  the  opinion  as  follows:  "It  is  argued 
that  inasmuch  as  a  taxpayer  inside  the 
high  school  district  must,  under  this  act,  pay 


the  difference,  if  any,  between  the  cost  of 
tuition  of  nonresident  pupils  and  the  75^ 
cents  per  wedc  allowed  by  section  3  of  th» 
act  to  be  paid  out  of  the  general  fund  of 
the  county,  and  must  also  pay  his  proportion- 
ate share  of  the  76  cents  per  week,  with 
the  other  taxpayers  of  the  county,  in  addi- 
tion to  bearing  the  whole  of  the  expense- 
of  educating  those  pupils  resident  within 
the  limits  of  the  high  school  district,  the  law 
violates  sections  1,  4,  and  6  of  article  9  of 
the  ConsUtutlon."  High  School  District  v. 
Lancaster  County,  60  Neb.  152,  82  N.  W.  381, 
49  L.  R.  A.  343,  88  Am.  St  Bep.  525. 

What  the  court  decided  is  stated  in  tw» 
paragraphs  of  the  syllabus  as  follows: 

"(1)  The  Constitution  of  this  state  re- 
quires not  only  that  tbe  valuation  of  prop- 
erty for  taxation,  but  the  rate  as  well,  shall 
be  uniform. 

"(2)  Sections  1,  8,  c.  62,  pp.  290,  291,  Seas, 
Laws  1899  (Comp.  St  1907,  c.  79,  snbd.  6, 
H  5,  7),  which  provide  that  pupils  residing 
without  the  limits  of  high  school  districts 
In  the  state  may  attend  such  schools  free 
of  charge  to  them,  and  that  an  arbitrary 
sum  shall  be  paid  out  of  the  general  fond  of 
the  county  as  compensation  to  such  high 
school  district  for  such  tuition,  which  sum 
may,  in  any  case,  fall  below,  or  exceed,  the 
cost  of  such  tuition,  contravoies  sections  1, 
4,  and  6,  art.  9,  of  the  Constitntlon,  whidk 
declare,  among  other  things,  that  the  Legis- 
lature may  provide  such  revenue  as  may  be 
needful  by  levying  a  tax  by  valuation,  so 
that  every  person  and  corporation  shall  pay 
a  tax  in  proportion  to  the  value  of  his,  her, 
or  its  property  and  franchises,  that  the  Leg- 
islature shall  have  no  power  to  release  or 
commute  taxes,  and  that  all  taxes  for  mu- 
nicipal purposes  shall  be  uniform  in  respect 
to  persons  and  property  within  the  Jurisdic- 
tion of  the  body  imposing  the  same."  Higli 
School  District  v.  Lancaster  County,  60  Neb. 
148,  82  N.  W.  380,  49  L.  B.  A.  343,  83  Am. 
St  Rep.  525. 

A  critical  examination  of  the  opinion  will 
show  that  the  constitutionality  of  the  act 
of  1899  was  tested  by  two  assumptions — ^the 
first  was  that  75  cents  a  week  was  insuffi- 
cient to  meet  the  expenses  of  educating  a 
nonresident  pupil.  On  the  fact  thus  as- 
sumed the  consequence  is  stated  in  the  opin- 
ion as  follows:  "It  is  plain  this  difference 
must  be  made  good  by  levying  and  collect- 
ing taxes  on  the  property  of  the  taxpayers 
resident  in  the  school  district  and  this  dif- 
ference cannot  be  collected  from  taxpayers 
of  the  whole  county.  Then  the  taxpayers 
within  the  school  district  will  pay  a  greater 
proportion  of  these  taxes  than  would  those 
residing  within  the  county,  bnt  outside  the 
school  district,  and  while  the  valuation  of 
the  propoty  of  those  within  the  school  dis- 
trict and  those  without  it  might  be  uniform, 
yet  the  rate  of  taxation  for  the  same  pur- 
pose would  be  higher  on  the  property  with- 
in than  upon  that  without  the  school  dls* 


Digitized  by  LjOOQ  l€ 


Nebw) 


WILKINSON  V.  LORD. 


701 


trict"  High  School  District  t.  Loncaater 
County.  «0  Neb.  164,  82  N.  W.  381,  49  L. 
B.  A.  343,  83  Am.  St  Rep.  625.  The  second 
assumption  was  that  75  cents  a  week  exceed- 
ed the  cost  of  edncating  a  nonresident  pupil. 
On  the  fact  assumed  the  result  is  stated  in 
the  opinion  as  follows:  "The  excess  would 
accrue  to  the  high  school  districts,  and  the 
taxpayers  thereof  would  profit  at  the  ex- 
pense of  those  outside  the  limits  of  the  high 
school  district,  and,  in  eitho-  case,  the  rule 
of  uniformity  prescribed  in  section  6  of 
said  article  of  the  Constitution  would  be 
violated."  High  School  District  t.  Lancaster 
County,  60  Neb.  154,  82  N.  W.  381,  49  U  R. 
A.  343,  83  Am.  St  Rep.  525. 

What  would  have  been  the  effect  of  the 
free  high  school  act  of  1899,  if  the  court  had 
assumed  the  Legislature  was  correct  in 
estimating  the  cost  of  educating  ai  nonresi- 
dent pupU  at  75  cents  a  week,  is  nowhere 
stated  in  the  opinion.  In  considering  the 
bearing  of  the  case  cited  on  the  present  in- 
quiry, it  is  pertinent  to  remark  that  the  act 
of  1907  contains  no  provision  for  a  county 
tax,  for  a  county  liability,  or  for  drawing 
money  from  the  county  treasury.  The  unit 
of  taxation  is  the  school  district  which  is  re- 
quired by  law  to  educate  its  own  pupils,  and 
no  provision  Is  made  for  taxing  people  into 
her  taxing  districts.  PlalntllFs  petition 
shows  that  under  the  provisions  of  the  ex- 
isting law  all  the  property  in  school  district 
42,  Richardson  county,  was  subjected  to  a 
15-mill  levy.  No  biu^en  was  imposed  except 
what  was  necessary  to  educate  three  resi- 
dent pupils  at  the  rate  of  75  cents  a  week 
for  each.  If  this  legislative  estimate  Is  ac- 
curate>  it  is  perfectly  apparent  that  the  tax- 
ation authorized  does  not  violate  the  rule 
that  the  valuation  of  property  as  well  as 
the  rate  must  be  uniform.  The  burden  rests 
on  all  property  alike  within  the  jurisdiction 
of  the  taxing  district  This  fully  meets  the 
constitutional  requirement  as  to  uniformity. 
Pleuler  v.  State,  11  Neb.  547,  10  N.  W.  481. 
It  is  equally  clear  that  if  75  cents  a  week  is 
a  correct  estimate  of  the  cost  of  educating 
a  nonresident  pupil  at  a  high  school,  neither 
the  people  of  the  district  in  which  the  tax 
Is  levied  nor  the  people  of  ttie  district  in 
which  the  high  school  is  situated  are  as- 
sessed to  pay  obligations  of  another  taxing 
district  and  that  the  rule  forbidding  com- 
mutation of  taxes  has  not  been  violated. 
From  what  has  been  said  it  will  be  observed 
that  High  School  District  v.  Lancaster  Coun- 
ty, 00  Neb.  147,  82  N.  W.  380,  49  L.  R.  A. 
843,  83  Am.  St  Rep.  525,  is  not  a  precedent 
for  holding  the  present  law  invalid,  except 
on  the  assumption  that  the  legislative  esti- 
mate of  76  cents  a  week  for  educating  non- 
resident pupils  is  incorrect  On  a  careful 
reconsideration  of  the  question  we  are  un- 
willing to  assume  without  pleading  or  proof 
that  tuition  at  the  rate  of  75  cents  a  week, 
aa  fixed  by  the  present  law,  will  fall  be- 


low or  exceed  the  expense  of  educating  a 
nonresident  pupil.  An  enactment  of  the  leg- 
islative department  of  government  should 
not  hang  in  the  judicial  department  by  such 
a  slender  thread.  Legislative  acts  are  pre- 
sumed to  be  valid.  Burdens  imposed  by 
statute  are  presumed  to  be  reasonable. 
Courts  should  never  assume  that  the  law- 
makers will  deliberately  attempt  to  spoliate 
one  community  for  the  benefit  of  another  or 
pass  laws  without  knowledge  of  existing  con- 
ditions. In  absence  of  proof  to  the  con- 
trary, courts  ought  to  assume  that  the  Leg- 
islature acted  with  full  knowledge  of  the 
facts  upon  whic^  the  legislation  Is  based. 
The  burden  of  proving  that  a  statute  con- 
tains unlawful  or  unreasonable  terms  rests 
upon  those  assailing  it.  The  Legislature  has 
iwwer  to  investigate  any  subject  for  the  pur- 
pose of  legislation.  To  ascertain  the  facts 
the  resources  of  the  government  are  at  its 
command.  It  can  explore  the  oflBces  of  the 
executive  department  and  other  repositories 
to  ascertain  conditions  relating  to  any  su1>- 
ject  of  legislation.  For  these  reasons  the 
trial  court  was  correct  in  holding  that  tui- 
tion of  75  cents  a  week  would  not  as  a  mat- 
ter y)f  law  exceed  or  fall  below  the  cost  of 
educating '  a  nonresident  pupil  at  a  high 
school. 

2.  The  next  point  argued  by  plaintttf  Is 
stated  in  his  brief  as  follows:  "The  act  Is 
void  as  a  delegation  of  the  taxing  power  vest- 
ed in  the  Legislature  to  the  county  superin- 
tendent contrary  to  the  express  provisions  of 
our  state  Constitution,  wbidi  limits  the  grant 
of  such  power  to  none  but  the  corporate 
authorities  of  municipal  corporations;  and 
school  districts  come  within  that  designa- 
tion." By  section  3  of  the  act  of  1907  the 
legal  voters  at  the  annual  school  district 
meeting  are  authorized  to  vote  the  amount 
of  taxes  required  for  free  high  school  educa- 
tion during  the  coming  year.  If  they  fall 
to  perform  that  duty,  section  4  authorized 
the  school  board  to  furnish  the  county  clerk 
with  a  proper  estimate  of  the  necessary  rev- 
enue. For  failure  of  the  school  board  to  per- 
form that  duty,  the  following  remedy  Is  cre- 
ated by  section  5:  "If  the  di&trict  board  or 
board  of  education  of  any  public  school  dis- 
trict wherein  there  are  pupils  entitled  to  and 
desiring  free  high  school  education  as  in  this 
act  provided,  neglect  or  refuse  to  make  and 
deliver  the  required  estimate  as  set  forth  in 
section  4  of  this  act  the  county  superintend- 
ent of  the  proi>er  county  shall  make  and  de- 
liver to  the  county  clerk  of  each  county  in 
which  any  i>art  of  such  public  school  district 
is  situated,  not  later  than  the  first  Monday 
in  August  following  the  annual  school  dis- 
trict meeting,  an  itemized  ^timate  of  the 
amount  necessary  to  be  expended  by  such 
public  school  district  during  the  ensuing  year 
for  free  high  school  education.  It  shall  be 
the  duty  of  the  county  clerk  to  levy  such 
tax  on  all  the  taxable  property  of  such  sdiool 


Digitized  by 


Google 


702 


122  NOaXHWESTERN  REPORTBB. 


(Mebi 


district  the  same  as  though  such  tax  bad 
b«en  voted  by  the  annual  achool  district  meet- 
lug."     Sesa  Laws  1907,  p.  406,  c.  121,  {  5. 

Plaintiff  argues  the  power  thus  delegated 
to  the  county  superintendent  Is  a  violation  of 
the  following  provision  of  the  Constitution: 
"The  Legislature  may  vest  the  corporate  au- 
thorities of  cities,  towns  and  villages,  with 
power  to  make  local  improvements  by  special 
assessment,  or  by  special  taxation  of  property 
benefitted.  For  all  other  corporate  purposes, 
all  municipal  corporations  may  be  vested  with 
authority  to  assess  and  collect  taxes,  but  such 
taxes  shall  be  uniform  in  respect  to  persons 
and  property  within  the  jurisdiction  of  the 
body  Imposing  the  same."  Const  art  9,  t  6. 
The  amount  of  money  to  be  raised  by  taxation 
for  high  school  instruction  depends  on  the 
number  of  pupils.  The  liability  of  the  school 
district  is  fixed  at  75  ceuts  a  weelc  for  each 
pupil.  By  these  provisions  the  amount  to  be 
raised  by  taxation  is  definitely  fixed  by  legis- 
lation, and  depends  on  facts  which  the  coun- 
ty superintendent  by  virtue  of  bis  office  may 
readily  ascertain.  He  is  required  to  furnish 
facts,  but  not  to  make  a  levy.  In  the  first  in- 
stance the  legal  voters  of  the  district  are  di- 
rected to  obtain  the  necessary  information  and 
vote  taxes  accordingly.  If  they  fail  to  do  so, 
the  school  board  may  make  and  forward  to 
the  county  clerk  an  estimate  of  the  funds  nec- 
essary for  high  school  education.  If  both  are 
derelict  in  the  performance  of  their  duties, 
the  right  to  free  high  school  Instruction  un- 
der the  law  Is  not  lost,  since  the  Legislature 
has  empowered  the  county  superintendent  to 
furnish  the  county  clerk  with  the  necessary 
data  for  a  levy.  When  provision  is  made  by 
law  for  free  high  school  education,  children 
should  not  be  deprived  of  that  right  by  the 
contumacy  of  electors  or  officers  of  a  school 
district  The  right  of  the  Ijcglslature  to  pro- 
vide free  instruction  Includes  the  power  to 
create  a  remedy  when  electors  and  school  of- 
ficers disregard  their  obligations  to  the  pub- 
lic. The  best  results  of  a  free  government 
can  only  be  obtained  by  an  enlightened  citi- 
zenship. This  is  recognized  by  the  constitu- 
tional provision  which  requires  the  Legisla- 
ture to  provide  "for  the  free  Instruction  in 
the  common  schools  of  all  persons  between 
the  ages  of  five  and  twenty-one  years."  This 
command  of  the  supreme  law  is  not  defeated 
by  the  provision  that  "all  municipal  corpo- 
rations may  be  vested  with  authority  to  as- 
sess and  collect  taxes."  The  electors  and 
school  board  in  district  42,  Richardson  coun- 
ty, cannot  within  their  Jurisdiction  put  an 
end  to  the  free  Instruction  required  by  the 
Constitution  on  the  ground  that  the  sole  pow- 
er to  levy  taxes  for  school  purposes  has  been 
committed  to  them  as  a  "municipal  corpora- 
tion." Judge  Cooley  expressed  himself  on 
this  subject  as  follows:  "Wherever  a  system 
of  public  instruction  Is  established  by  law,  to 
be  administered  by  local  t>oards,  who  levy 
taxes,  build  schoolbouses,  and  employ  teacb- 
era  for  the  purpose,  it  can  hardly  be  question- 


ed that  the  state.  In  establishing  the  system, 
reserved  to  itself  the  means  of  giving  It 
complete  effect  and  full  efficiency  in  every 
township  and  district  of  the  state,  even 
though  a  majority  of  the  people  of  such  town- 
ship or  district  deficient  in  proper  apprecia- 
tion of  its  advantages,  should  refuse  to  take 
upon  themselves  the  expense  necessary  to 
give  them  a  participation  In  its  benefitBu  Pos- 
sibly Judicial  proceedings  might  be  available 
in  some  such  cases,  where  a  state  law  for 
the  levy  of  local  taxes  for  educational  pur- 
poses had  been  disobeyed;  but  the  Legisla- 
ture would  be  at  liberty  to  choose  its  own 
method  for  compelling  the  pwformance  of 
the  local  duty."  2  Cooley  on  Taxation,  p. 
1290.  In  any  avent  this  court  by  a  long 
line  of  decisions,  some  of  which  are  cited  in 
Magneau  v.  City  of  Fremont  30  Neb.  843,. 
47  N.  W.  280,  9  L.  R  A.  780,  27  Am.  St  Rep. 
436,  is  committed  to  the  doctrine  that  the 
section  of  the  Constitution  containing  the 
provision,  "all  municipal  corporations  may 
be  vested  with  authority  to  assess  and  col- 
lect taxes,"  la  not  a  limitation  on  the  power 
of  the  Legislature.  It  is  therefore  unneces- 
sary to  discuss  contrary  holdings  in  other 
Jurisdictions.  In  declining  to  adopt  plain- 
tiff's Interpretation  of  the  Constitution  on 
this  point  the  trial  court  did  not  err. 

3.  PlaintifTs  next  objection  to  the  act  is 
that  it  violates  the  constitutional  provision 
relating  to  titles  of  bills.  The  title  in  ques- 
tion is:  "An  act  to  provide  four  years  of 
free  public  high  school  education  for  all  the 
the  youth  of  this  state  whose  parents  or 
guardians  live  in  public  school  districts  which 
maintain  less  than  a  four-year  high  school 
course  of  study,  and  to  repeal  all  acts  and 
parts  of  acts  in  conflict  herewith."  Bess. 
Laws  1007,  p.  402,  c.  121.  This  is  challenged 
as  Insufficient  within  the  meaning  of  the  fol- 
lowing provisions  of  the  Constitution:  "No 
bill  shall  contain  more  than  one  subject,  and 
the  same  shall  be  clearly  expressed  in  its  ti- 
tle." Const  art  3  |  11.  The  operation  of  the 
act  beyond  the  scope  of  the  title,  as  understood 
by  plaintiff,  is  described  in  his  brief  as  fol- 
lows: "It  amends  considerable  of  the  ex- 
isting laws.  It  makes  a  peculiar  process  for 
the  raising  of  revenue  not  provided  for  by 
the  title.  It  provides  the  farce  of  the  voters 
of  the  district  to  vote  on  a  proposition,  and 
then,  as  a  nullity  of  the  wants  or  desires  of 
the  Inhabitants  of  the  district  finally  com- 
mands the  superintendent  to  impose  the  tax- 
es without  any  representation  of  the  tax- 
payers." The  title  declares  a  legislative  pur- 
pose to  provide  a  four-year  course  of  free 
high  school  instruction  for  the  benefit  of  pu- 
pils residing  In  districts  where  that  advan- 
tage is  denied.  In  making  provision  for  free 
high  school  education  the  power  of  tbe  law- 
makers to  classify  subjects  for  the  purpose 
of  legislation  was  not  exceeded.  The  legis- 
lation relates  alone  to  the  class  described  in 
the  title.     Raising  funds  by  taxation  was 


Digitized  by 


Google 


Neb.). 


6ASSETT  ▼.  FARMERS'  tt  MERCHANTS'  INS.  00. 


703 


wltldn  the  purpose  announced.  The  means 
devlBed  to  prevent  electors  and  officers  from 
evading  the  law  was  also  witbln  the  pnrview 
of  the  tittle.  There  Is  no  sarreptltlous  legis- 
lation anywhere  in  the  act  All  provisions  in 
the  bill  "are  comprehended  within  the  ob- 
jects and  purposes  of  the  act  as  expressed  in 
its  title,"  in  compliance  with  the  rule  an- 
nounced In  Affholder  v.  State,  51  Neb.  91,  70 
N.  W.  544,  and  in  Alperson  v.  Whalen,  74 
Neb.  680,  105  N.  W.  474.  The  trial  court  so 
held,  and  the  ruling  was  correct. 

4.  When  the  high  school  act  of  1907  was 
passed,  a  statute  then  in  force  required  each 
school  district  to  determine  the  amount  of 
money  required  for  the  maintenance  of 
schools  during  the  coming  year,  and  made 
provision  for  raising  the  necessary  funds  by 
taxation,  but  limited  the  amount  to  a  25- 
mill  levy.  Comp.  St  1907,  c.  79,  subd.  2, 
{  11.  PlalntifC  finally  argues  the  efTect  of  the 
new  act  is  to  increase  by  amendment  the 
statutory  limitation  of  25  mills  in  violation 
of  the  constitutional  provision  that  "no  law 
shall  be  amended  unless  the  new  act  con- 
tain the  section  or  sections  so  amended  and 
the  section  or  sections  so  amended  shall  be 
repealed."  The  point  does  not  appear  to  be 
well  taken.  The  later  act  extends  a  four- 
year  course  of  free  high  school  instruction 
to  pupils  residing  In  districts  where  that 
privilege  was  denied.  To  carry  out  the  pur- 
pose of  the  Legislature  a  new  class  la  creat- 
ed. The  law  applies  alone  to  pupils  within 
that  class.  The  25-mIlI  limitation  imposed 
by  the  former  act  did  not  apply  to  educa- 
tional facilities  applicable  to  the  new  class. 
The  present  law  is  on  its  face  an  Independ- 
ent act  covering  the  new  subject  of  legisla- 
tion, and  must  be  tested  by  the  doctrine  that 
"changes  or  modifications  of  existing  stat- 
utes as  an  incidental  result  of  adopting  a 
new  law  covering  the  whole  subject  to  which 
it  relates,  are  not  forbidden  by  section  11, 
art  3,  of  the  Constitution."  De  France  v. 
Banner.  66  Neb.  14.  92  N.  W.  159;  Eaton  v. 
Eaton,  66  Neb.  676,  92  N.  W.  995.  60  L.  R.  A. 
605.  The  rule  Invoked  by  plaintiff  is  there- 
fore inapplicable,  and  this  case  is  not  con- 
trolled by  Bonrd  of  Education  v.  Moses,  51 
Neb.  288.  70  N.  W.  946,  wherein  the  high 
school  act  of  1895  was  held  void. 

There  being  no  error  In  the  mllnss  of  the 
district  court,  the  judgment  is  affirmed. 

ROSE,  J.,  not  sitting. 


BASSETTT  v.  FARMERS'  *  MERCHANTS' 

INS.  CO.  (No.  15,752.) 
(Supreme  Court  of  Nebraska.  Sept.  25,  1909.) 
1.  Insubance  (S  114*)— Insubable  Interest. 
"A  contract  of  insurance  is  a  contract  of 
indemnity,  and  any  person  attempting  to  en- 
force a  claim  under  such  a  contract  must  show 
an  Interest  in  the  subject-matter  of  the  con- 


tract"    Stanisics  v.  Hartford  IHre  Insurance 
Company  of  Hartford  (Neb.)  120  N.  W.  435. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent.  Dig.  {  136;    Dec.  Dig.  i  114.*] 

2.  iNsuBAKCB  (J  115*)— FiBE— Insurance  In- 
terest. 

In  1906,  a  husband  by  virtue  of  the  mar- 
ital relation  only  had  no  insurable  interest  in 
his  wife's  real  estate. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent.  Dig.  §  153;    Dec.  Dig.  {  115.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court  Otoe  County; 
Jessen,  Judge. 

Action  by  John  W.  Bassett  against  the 
Farmers'  &  Merchants'  Insurance  Company. 
Judgment  for  plaintiff,  and  defendant  ap- 
peals.    Reversed  and  remanded. 

Wllmer  B.  Comstock  and  A.  L.  Chase,  for 
appellant.    W.  W.  Wilson,  for  appellee. 

ROOT,  J.  In  1902  John  W.  Bassett  plain- 
tiff herein,  purchased  a  farm  in  Otoe  county, 
and  procured  the  conveyance  therefor  to  be 
made  to  his  wife.  In  1904  defendant  insur- 
ed plaintiff  for  five  years  against  loss  by  fire 
of  the  dwelling  house  on  said  farm.  In  1906 
the  house  was  totally  destroyed  by  fire.  De- 
fendant denied  liability  upon  its  policy,  and 
returned  the  premium  received  by  it  from 
plaintiff,  which  he  retained  some  months, 
and  then  sent  back  to  defendant.  Defendant 
tenders  plaintiff  the  amount  of  said  premium. 

1.  The  niost  important  question  raised  by 
the  defense  is  that  under  the  facts  plaintiff 
did  not  have  an  Insurable  Interest  in  the 
property  destroyed,  and  for  that  reason  can- 
not recover.  Without  an  insurable  Interest, 
plaintiff  ought  not  to  prevail.  Stanisics  v. 
Hartford  Fire  Ins.  Co.  (Neb.)  120  N.  W.  433, 
At  the  time  the  policy  was  issued  excepting 
only  her  homestead,  a  married  woman  In 
Nebraska  could  dispose  of  her  real  estate 
without  her  husband's  assent  and  by  her 
sole  deed  convey  title  thereto  freed  from  his 
interest  Inchoate  or  otherwise  therein.  The 
farm  under  consideration  was  not  a  home- 
stead. Not  only  may  the  wife  thus  convey 
her  real  estate,  but  during  her  lifetime  the 
husband  has  no  right  to  its  possession  or 
control  nor  to  any  part  of  the  rents  and 
profits  issuing  therefrom.  Cases  may  be  cit- 
ed to  sustain  the  proposition  that  the  hus- 
band's estate  by  the  curtesy  initiate  is  an  In- 
surable Interest;  but  an  examination  of 
those  cases  will  disclose  that  they  are  based 
upon  laws  giving  the  husband  more  than  a 
mere  expectancy  in  the  wife's  land.  In  Juris- 
dictions where  the  lawmaking  power  has  com- 
pletely emancipated  a  married  woman's  prop- 
erty from  the  control  of  her  husband,  the 
possibility  that  he  will  receive  a  benefit  from 
the  real  estate  of  which  she  may  die  seised 
is  not  considered  an  insurable  Interest  dur- 
ing her  lifetime.  Clark  v.  Insurance  Co., 
81  Me.  373,  17  Atl.  303 ;   Traders'  Insurance 


•For  other  ease*  tea  t/im*  topic  and  lectlon  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  k  Reporter  Indexes 


Digitized  by  VjOOQ  IC 


704 


122  NORTHWESTERN  REPORTER. 


(Neb. 


Co.  ▼.  Newman,  120  Ind.  554,  22  N.  E.  428; 
Planters'  Ins.  Co.  t.  Lloyd,  71  Ark.  292,  75 
S.  W.  725.  Plaintiff  argues  that,  If  the 
holder  of  the  property  Insured  will  suffer  a 
loss  by  Its  destruction,  he  has  an  insurable 
Interest  therein.  An  examination  of  the  cas- 
es cited  upon  that  point  will  disclose  that  the 
assured  in  each  instance  had  some  substan- 
tial interest  in  the  subject  insured,  an  inters 
est  tbiat  would  be  recognized  and  protected 
by  the  courts.  If  plaintiff  were  enjoying 
the  possession  of  a  house  rent  free  without 
any  contract  with  the  owner  and  under  such 
circumstances  that  the  latter  might  dispos- 
sess the  former  any  time,  it  would  hardly  be 
contended  that  be  bad  an  insurable  interest 
In  the  dwelling.  So  far  as  the  proof  goes, 
plaintiff  holds  possession  of  the  farm  by  suf- 
ferance of  his  wife,  and  not  by  force  of  any 
lawful  or  equitable  right  Counsel  argue 
that  Mrs.  Bassett  has  only  a  dry,  naked,  le- 
gal title  to  the  farm,  and  that  the  beneficial 
one  is  In  plaintiff,  but  the  difficulty  is  that 
the  proof  does  not  sustain  that  assumption. 
Mrs.  Bassett  did  not  testify,  nor  has  plain- 
tiff stated,  that  there  was  any  arrangement 
between  himself  and  wife,  oral  or  otherwise, 
by  which  he  was  to  have  a  life  estate  in  the 
farm.  Nor  is  there  any  proof  that  the  deed 
to  Mrs.  Bassett  does  not  convey  the  title  In 
Just  such  form  as  plaintiff  desired.  In  Red- 
field  V.  Holland  Purchase  Ins.  Co.,  56  N. 
T.  354, 15  Am.  Rep.  424,  cited  as  In  point,  the 
wife  had  agreed  orally  that  her  husband 
should  have  the  use  during  his  natural  life 
of  the  property  conveyed  to  her  at  bis  in- 
stance. He  was  in  possession  of  the  land, 
and  the  court  held  that  there  had  been  com- 
plete performance  by  the  husband  of  the 
oral  agreement  so  as  to  take  It  out  of  the 
statute  of  frauds,  and  that  he  had  an  equi- 
table title  to  the  real  estate.  But  In  the  case 
at  bar  the  proof  merely  discloses  that  plain- 
tiff purchased  the  land  and  directed  the  ven- 
dor to  convey  direct  to  his  wife,  and,  in  con- 
formity with  bis  instructions,  she  received  a 
warranty  deed  therefor.  He  testified  that 
he  desired  her  to  have  the  land  without  ad- 
ministration if  she  survived  him,  and,'  should 


she  predecease  him,  he  would  Inherit  from 
her.  It  may  be  that  the  facts  will  JoaUfy  a 
court  finding  that  there  was  an  arrangement 
between  the  husband  and  wife  entered  into 
before  the  deed  was  made .  to  her  that  he 
could  have  the  use  of  the  land  during  his 
lifetime,  but  there  Is  no  evidence  In  the  rec- 
ord of  those  facts.  Upon  the  proof  plaintiff 
is  in  the  same  situation  as  though  he  had  tak- 
en possession  of  his  wife's  separate  property 
and  leased  It  for  his  own  benefit.  The  wife 
could  oust  him  any  time  she  saw  fit.  In  the 
state  of  the  record  there  is  a  failure  of  proof 
upon  a  vital  fact  in  issue.  Pope  v.  Glenns 
Falls  Ins.  Co.,  136  Ala.  670,  34  South.  29. 

2.  For  the  reasons  Just  stated,  the  case 
must  be  reversed,  and  It  Is  not  necessary  to 
examine  the  defense  of  a  forfeiture  because 
of  the  alleged  concealment  and  mlsr^resen- 
tatlons  by  plaintiff  concerning  the  title,  nor 
to  go  Into  the  alleged  fact  that  defendant's 
agent  was  cognizant  of  the  facts  when  he 
solicited  the  insurance,  and  took  plaintifra 
application  therefor.  The  agent  did  not  tes- 
tify in  the  case,  and  it  may  be  doabted 
whether  proof  of  his  statements  and  admis- 
sions made  subsequent  to  taking  the  applica- 
tion will  bind  defendant.  Furthermore,  the 
court  would  be  greatly  assisted  In  a  solution 
of  the  differences  betweoi  the  parties  npon 
this  point  if  It  were  made  dear  whethor  or 
not  when  Mr.  Butt,  defendant's  agent,  acted 
as  an  Intermediary  between  Mrs.  Bassett's 
vendor  and  herself,  he  was  then  defendant's 
agent,  and  whether  or  not  at  the  time  he 
took  plaintltTs  application  he'  had  In  mind 
the  facts  incident  to  the  transfer  of  said  titie, 
and,  If  so,  whether  by  oversight  or  otherwise 
he  failed  to  correctly  fill  out  the  application. 

There  is  not  a  scintilla  of  evidence  to  Indi- 
cate that  the  fire  was  of  Incendiary  origin, 
and  we  dislike  very  much  to  reverse  the 
Judgment  before  us,  but  the  failure  of  proof 
referred  to  is  clear  and  our  duty  Impera- 
tive. The  Judgment  of  the  district  court  Is 
reversed,  and  the  cause  remanded  for  fur- 
ther proceedings. 

REESE,  0.  J.,  absent  and  not  sitting. 


Digitized  by 


Google 


Neb.) 


UNIOER  y.  STATE. 


706 


LINI6BR  T.  STATB.    (No.  16,010.) 
(Supreme  Court  of  Nebraska.     Sept.  26,  1909.) 

1.  GBmiRAi.  Law  (i  954*)— Nbw  Tbiai^As- 

BIORUENT  OF  EBBOB — INCLUDINO  EbBOBS  IN 
SiNOLX  'ABSIGNMKNT. 

A  joint  assignment  in  a  motion  for  a  new 
trial  in  a  criminal  case,  criticising  a  eroup  of 
instructions,  will  be  ovemiled  unless  all  of  the 
instructioos  are  erroneous. 

[Ed.  Note.— For  otlier  cases,  see  Criminal 
Law,  Dec.  Dig.  i  954.*] 

2.  Cbiminal  Law   (J   939*)  — Nkw   Tbial  — 
Newly  Discovebed  EJvidenck, 

Where  certain  evidence  claimed  by  defend- 
ant to  be  material  for  bis  defense  became 
known  to  his  counsel  after  the  case  had  been 
submitted  and  the  jury  had  retired  to  deliberate, 
but  before  they  had  agreed  ui>on  a  verdict,  and 
the  witnesses  by  whom  such  proof  could  be 
made  were  in  the  courtroom  at  that  time,  it  was 
the  duty  of  counsel  to  immediately  call  the 
court's  attention  to  said  evidence,  and  request 
that  the  jury  be  recalled,  and  the  evidence  sub- 
mitted to  them.  If  counsel  failed  so  to  do,  the 
trial  court  in  its  discretion  may  properly  over- 
rule a  request  for  a  new  trial  based  on  the  dis- 
covery of  such  evidence. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law.  Cent  Dig.  {$  2318-2323;  Dec.  Dig.  { 
939.»] 

(Syllabos  by  the  Court) 

Error  to  District  Court,  Pierce  County; 
Welch,  Judge. 

Leonard  Linlger  was  convicted  of  assault 
witli  intent  to  Inflict  great  bodily  Injury,  and 
be  brings  error.    Affirmed. 

A.  I.  Smith  and  Douglas  Cones,  for  plain- 
tiff in  error.  Wm.  T.  Thompson  and  Geo. 
W.  Ayres,  for  the  Stata 

ROOT,  J.  Plaintiff  in  error  was  convict- 
ed of  assault  with  intent  to  Inflict  a  great 
bodily  injury,  and  from  a  sentence  of  two 
years'  confinement  in  the  state  penitentiary 
appeals  to  this  court 

1.  It  is  argued  that  the  court  erred  in  its 
charge  to  the  jury.  The  assignment  in  the 
motion  for  a  new  trial,  with  relation  to  the 
instroctions,  is  joint,  and  under  the  well 
settled  law  in  this  state,  if  one  of  the  in- 
structions given  is  correct,  the  assignment  is 
bad.  Thompson  v.  State,  44  Neb.  367,  62 
N.  W.  1060.  Speakitag  for  himself  alone 
the  writer  views  the  decision  with  disfavor, 
but  it  was  announced  14  years  ago.  The 
Legislature  did  not  thereafter  amend  the 
statute  concerning  motions  for  a  new  trial 
in  criminal  cases,  and  the  rule  probably 
must  be  adhered  to.  In  the  instant  case  the 
charge  taken  altogether  is  fair.  While  some 
paragraphs  thereof  may  be  subject  to  criti- 
cism, we  do  not  think  that  the  jurors  were 
misled  thereby,  and  the  judg:ment  ought  not 
to  be  reversed  because  of  the  alleged  errors 
in  said  instructions.  Some  of  the  instrnc- 
tlons  referred  to  in  the  motion  for  a  new 
trial  unquestionably  state  tl>e  law  clearly 
and  sncclnctly,  and  for  that  reason,  upon 
the  authority  of  Thompson  v.  State,  supra. 


the  assignment  considered   must  be  over- 
ruled. 

2.  It  is  ivged  that  a  new  trial  should  have 
been  granted  because  of  newly  discovered 
evidence.  The  complaining  witness  and  de- 
fendant w»e  in  a  saloon  in  the  village  of 
McLean  on  the  afternoon  of  December  14, 
1907.  They  engaged  in  a  card  game,  work- 
ed a  slot  machine,  and  pulled  "square  holds." 
Some  ill  feeling  was  engendered,  but  their 
relations  seemed  harmonious  at  midnight 
when  the  resort  was  closed.  Snyder  start- 
ed home  in  his  buggy,  and  defendant  rode 
with  him  out  of  the  village.  While  on  the 
highway  Snydor  was  beaten,  as  defendant 
testlfled,  in  a  mutual  combat  growing  out 
of  a  remark  made  by  Snyder  at  the  saloon 
that  he  had  a  boy  at  home  that  could  whip 
the  defendant  Snyder  testified  that  he  Was 
assaulted  and  robbed  by  defendant,  then 
assisted  back  into  his  buggy,  and  that  Llni- 
ger  unbuckled  the  reins  from  the  bridle  bits, 
and,  while  standing  on  the  ground,  started 
the  team  off  on  a  run.  Snow  to  the  depth 
of  about  two  inches  had  recently  fallen,  and 
the  sheriff  and  county  attorney  the  morning 
after  the  assault  examined  the  highway  at 
the  point  where  they  claim  Snyder  told  them 
that  he  had  been  assaulted,  and  were  unable 
to  find  any  indications  that  a  team  had  been 
driven  outside  of  the  beaten  path,  or  that 
any  struggle  had  occurred  on  either  side  of 
the  road  at  said  point,  or  for  a  mile  and  a 
half  east  thereof.  Defendant's  counsel  re- 
sided in  Iowa,  and  evidently  was  not  ac- 
quainted with  the  residents  of  Pierce  county, 
but  be  had  interrogated  the  sheriff  and  coun- 
ty attorney  generally  about  the  case,  and 
they  did  not  disclose  to  him  that  they  had 
made  said  search  or  the  results  thereof  un- 
til after  the  jury  had  retired.  It  is  claim- 
ed that  this  evidence  was  vital  and  that  de- 
fendant was  not  guilty  of  laches  in  the 
premises.  One  of  the  jurors  has  made  an 
affidavit  that  had  that  evidence  been  be- 
fore the  jury,  the  verdict  returned  would 
not  have  been  rendered.  The  assignment  is 
not  weU  taken.  Defendant's  counsel  was  In- 
formed of  the  facts  while  the  jurors  were 
deliberating.  Both  the  sheriff  and  county 
attorney  were  present  In  the  courthouse, 
and  counsel  should  have  moved  the  court 
to  recall  the  jury  to  set  aside  the  submis- 
sion of  the  case,  and  to  permit  the  intro- 
duction of  this  evidence.  Falling  to  do  so, 
defendant  must  abide  the  result  Oakes  v. 
Prather  (Tex.  Civ.  App.)  81  8.  W.  657.  The 
evidence  is  not  of  particular  Importance  for 
the  reason  that  Snyder's  testimony  given  on 
the  preliminary  examination  and  upon  the 
trial  of  this  case  fixes  the  location  of  the  as- 
sault west  of  the  southwest  comer  of  section 
24,  whereas  the  sheriff  and  county  attorney 
commenced  to  search  some  rods  east  of  that 
point,  and  continued  their  examination  east- 
ward, and  not  to  the  west     Snyder's  testi- 


•For  other  cues  sea  saihe  topla  and  section  NUMBER  in  Dee.  ft  Am.  Digs.  1907  to  data,  ft  Reporter  Indaxss 
122  N.W.-45 


Digitized  by  LjOOQIC 


706 


122  NORTHWESTERN  REPORTBB. 


(Nebu 


mony  la  not  altogether  consistent,  and  there 
are  some  facts  and  circumstances  tending 
to  contradict  him  In  other  Immaterial  par- 
ticulars, so  that  defendant's  counsel  were 
not  deprived  of  material  upon  which  to 
base  an  argument  to  the  Jury.  The  Juror's 
affidavit  will  not  be  considered  serlonsly, 
as  It  was  undoubtedly  given  after  reading 
affidavits  made  by  the  sheriff  and  county  at- 
torney that  did  not  disclose  that  the  affliints 
bad  not  viewed  the  place  where  Snyder  tes- 
tified that  he  was  attacked  by  defendant,  but, 
on  the  contrary,  stated  they  had  examined 
the  exact  location  of  the  alleged  assault,  and 
did  not  find  any  evidence  of  a  struggle.  We 
suggest  In  passing  that.  If  the  county  attor- 
ney believed  that  the  Information  given  de- 
fendant's counsel  after  the  Jury  retired  was 
material,  he  should  have  made  the  disclosure 
when  asked  by  defendant's  representative 
about  the  case.  Public  prosecutors  and 
peace  officers  owe  no  greater  obligation  to 
the  public  than  to  a  defendant  charged  with 
crime,  and  they  should  as  zealously  protect 
the  one  as  the  other.  The  record  warrants 
the  belief  that  Snyder  and  Llniger  were  In- 
toxicated during  the  night  of  December  14, 
1907,  to  such  an  extent  as  to  render  their 
testimony  concerning  their  conduct  that 
night  of  doubtful  value  in  many  particulars, 
but  defendant  admits  that  he  assaulted  and 
subdued  Snyder.  The  Jury  has  said  that  the 
assault  was  made  with  the  intent  to  In- 
flict a  great  bodily  injury,  the  wounds  pene- 
trated through  hair  and  scalp  to  Snyder's 
slEull,  and  furnished  convincing  proof  of  the 
savage  character  of  that  attack.  The  pen- 
alty is  severe,  but  it  was  within  the  province 
of  the  Jury  to  And  and  the  court  to  sentence, 
and  upon  the  record  we  do  not  find  Just 
cause  for  interference. 
The  Judgment  is  therefore  affirmed.  ° 

REESE,  C.  J.,  and  FAWCETT,  J.,  absent 
and  not  sitting. 


COOK  V.  STATE.    (Na  16,153.) 
(Sopreme  Court  of  Nebraska.     Sppt.  25,  1900.) 

Rape  (J  51*) — Penexbation — Cibouustartiai. 

Evidence. 

Id  a  prosecution  for  raiw  upon  a  child,  the 
fact  of  penetration  may  be  proved  by  circum- 
stantial  evidence. 

[Ed.  Note.— For  other  cases,  see  Rape,  Cent. 
Dig.  J  73;   Dec.  Dig.  |  51.»] 

Error  to  District  Court,  Douglas  County; 
Sears,  Judge. 

Waltdo  Cook  was  convicted  of  the  rape  of 
a  child,  and  be  brings  error.    Affirmed. 

John  M.  Macfarland,  for  plaintiff  in  error. 
William  T.  Thompson  and  George  W.  Ayres, 
for  the  State. 

LETTON.  J.  The  plaintiff  in  error  was 
convicted  of  rape  upon  the  person  of  one 


Hattle  RothholE,  a  child  of  between  eight 
and  nine  years  of  age.  The  principal  ar- 
gument of  plaintiff  in  error  ia  that  the  evi- 
dence does  not  sustain  the  verdict. 

We  think  it  unnecessary  to  set  ont  the 
details  further  than  to  observe  that  the 
only  point  upon  which  there  was  no  direct 
evidence  was  as  to  whether  penetration  had 
taken  place.  The  question  then  arises  wheth- 
er this  fact  may  be  proved  by  Indirect  or 
circumstantial  evidence,  and.  If  so,  whether 
there  is  sufficient  evidence  of  that  <oature 
to  support  a  conviction.  In  the  first  place.  It 
may  be  well  to  say  that  the  slightest  pene- 
tration is  sufficient  to  constitute  this  ma- 
terial element  of  the  offense.  In  Reg.  t.  Jor^ 
dan,  d  C.  &  P.  118,  Williams,  J.,  said:  "I 
am  also  of  opinion  as  a  matter  of  law  that 
it  is  not  essential  that  the  hymen  should 
be  ruptured.  •  •  •  I  also  think  that  it  Is 
impossible  to  lay  down  any  express  rule  as  to 
what  constitutes  penetration.  All  I  can 
say  Is  that  the  parts  of  the  male  must  be 
Inserted  in  the  parts  of  the  female,  but  I 
cannot  suggest  any  rule  as  to  the  extent." 
In  Reg.  V.  Lines,  1  C.  &  K.  S03,  Park,  B.. 
said:  "I  shall  leave  it  to  the  Jury  to  say 
whether  at  any  time  any  part  of  the  virile 
member  of  the  prisoner  was  within  the 
labia  of  the  pudendum  of  the  prosecutrix; 
for.  If  it  ever  was  (no  matter  how  little), 
that  will  be  sufficient  to  constitute  a  penetra- 
tion, and  the  Jury  ought  to  convict  the  pris- 
oner of  the  complete  offense."  In  this  cotm- 
try  the  rule  is  the  same.  1  Wharton's  Crim- 
inal Law  (10th  Ed.)  555;  Taylor  v.  State, 
111  Ind.  279,  12  N.  E.  400.  The  slightest 
penetration,  then,  being  sufficient,  can  tbia 
fact  be  proved'  by  circumstantial  evidence? 
Of  this  we  have  no  doubt  whatever.  The 
fact  of  penetration,  like  any  other  fact, 
may  be  proved  either  by  direct  or  by  cir- 
cumstantial evidence.  Taylor  t.  State, 
supra;  Brauer  t.  State,  25  Wis.  413,  which 
Is  a  case  very  similar  in  some  respects  to 
this. 

Is  the  evidence  soffldent  to  sustain  a 
verdict  of  guilty?  It  Is  shown  that  the 
girls  were  In  Cook's'  room;  that  they  at- 
tracted the  attention  of  Mrs.  Graham  at  tbe 
time;  that  Cook  admitted  their  presence: 
that  he.  was  seen  by  Beulah-  Graham  lyins 
upon  the  person  of  the  child.  It  is  further 
shown  that  he  was  then  affected  with  the 
venereal  disease,  from  which  tbe  child  was 
soon  afterward  found  to  be  suffering.  From 
these  and  other  circumstances  unnecessary 
to  relate  we  are  of  the  opinion  that  tbe  Jnty 
were  fully  warranted  In  finding  that  pene- 
tration had  taken  place,  and  that  tbe  defend- 
ant was  guilty.  The  existence  of  a  venereal 
disease  in  the  victim  has  always  been  re- 
garded as  proper  and  material  evidence 
where  the  alleged  ravisber  at  the  time  of  the 
assault  was  so  infected.  Wharton  &  Stille'a 
Medical  Jurisprudence  (6th  Ed.)  (  181.    It  Is 


•Por  otber  umb  sm  Mm*  toplo  and  smUod  NUMBER  In  Dec.  ft  Am.  Dtca.  1M7  to  data,  *  R«port«  Indwa 


Digitized  by  VjOOQ  l€ 


Nd>.) 


LOOSING  T.  LOOSINa. 


707 


true  that  the  presence  of  sach  a  disease  Is 
not  always  proof  of  seznal  Intercourse,  since 
It  may  be  eommunlcated  in  other  ways,  but, 
when  taken  In  connection  with  all  the  other 
facts  testified  to  In  this  case.  It  is  a  cir- 
cnmstance  which  strongly  corroborates  the 
story  told  by  the  witnesses.  The  exceptions 
to  the  Instructions  were  made  en  masse,  and, 
under  the  rule  established  by  this  court,  if 
one  of  them  properly  states  the  law,  the 
others  will  not  ordinarily  be  examined. 
Thompson  t.  State,  44  Neb.  367,  62  M.  W. 
1060;  Linlger  t.  SUte  (Neb.)  122  N.  W.  705. 
Howevw,  we  bare  considered  them,  and  find 
that  some  of  those  complained  of  haye 
heretofore  been  approved  by  this  court,  and 
that  the  others,  while  the  form  of  expres- 
sion perhaps  might  be  hotter,  are  not  er- 
roneous. 

We  find  no  Teversible  error  in  the  record, 
and  the  Judgment  of  the  district  court  is 
affirmed. 

REESB,  O.  Jn  absent,  not  sitting. 


LOOSING  et  al.  t.  LOOSING  et  al. 

(No.  16,676.) 

(Supreme  Court  of  Nebraska.    Sept  25,  1909.) 

1.  Wii,i.8  ({J  600,  616*)— Estates  Crkatkd— 
LiFK  Estate  ob  Fee. 

if  an  estate  Is  devised  to  a  person  epneral- 
ly  or  indefinitely  with  a  powe^  of  disposition,  it 
carries  the  fee;  bat,  if  the  testator  gives  the 
first  taker  an  estate  for  life  only  with  a  power 
to  dispose  of  the  remainder  to  definitely  de- 
scribed indlvidnala,  the  express  limitation  for 
life  will  control  the  operation  of  the  power,  and 
prevent  it  from  enlarging  the  life  estate  to  a 
fee. 

FEd.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  H  1335-1339,  141&-1430;  Dec.  Dig.  {§ 
000,  616.*] 

2.  WlLUS  (J  694*)  — Failubi  vo  Bxecutb  — 

FOWEB. 

Where  there  is  a  power  to  appoint  among 
certain  objects  and  no  gift,  in  default  of  ap- 
pointment, the  court  will  imply  a  gift  to  the  ob- 
jects of  the  power. 

[Ed.  Note.— For  otlier  cases,  see  Wills,  Cent. 
Dig.  H  1662,  1663;   Dec.  Dig.  t  694.*] 

3.  PowEBS  (J  35*)— PowKB  TO  Appohtt-Con- 

TBOL  BT   COUBTS. 

•  Where  the  donee  of  a  power  is  given  discre- 
tion in  making  an  appointment,  that  discretion 
will  not  be  controlled  by  the  court  provided  a 
■nbstantial  gift  is  made  to  each  object  of  the 
power. 

fBd.  Note.— For  other  cases,  see  Powers,  Cent 
LMg.  f  133;    Dea  Dig.  |  35.*] 

4.  Powms  (I  39*)- DiscBETioK  or  Domes— 

EZEBCISB  BT  COXTBTS. 

SboDid  the  donee  depart  this  life  without 
baring  exercised  the  power,  the  court  cannot  ex- 
ercise the  discretion  vested  in  the  donee,  but 
will  divide  the  property  e(|ually  among  the  bene- 
ficiaries of  the  power. 

[Bid.  Note.— For  other  cases,  see  Powers,  Cent. 
rHg.  If  153,  154;    D«!.  Dig.  i  39.*] 

5.  WlIXS  (J  693*)— CONSTBUOTIOR— POWBB  III 

Tbcst. 

Where  a  testator  devises  to  his  wife  a  life 
estate  in  certain  lands  and  lots  with  the  power 


to  "dispose"  of  or  "distribute"  the  remainder 
as  she  sees  fit,  and  later  in  tlie  will  there  is  a 
statement  that  the  wife  is  to  give  two  of  their 
children  out  of  said  remainder  so  much  there- 
of "as  she  sees  fit,"  and  it  appears  from  tlM 
will  and  all  of  the  circumstances  sarrounding 
the  deceased  that  it  was  Ills  intention  to  devise 
all  of  his  estate  and  not  to  permit  any  part 
thereof  to  vest  in  strangers  to  his  blood,  the 
widow  took  a  power  in  trust  for  the  benefit  of 
the  children  referred  to,  and  is  not  at  liberty  to 
exercise  that  power  for  the  benefit  of  any  bne 
else. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  If  165&-1661;   Dec.  Dig.  {  693.*] 

6.  WnxB   (I   601*)— Estates  Cbbaxkd— Lxtb 
Estats  OB  Fee. 

Subsequent  provisions  in  a  will  will  not 
prevail  to  take  from  an  estate  In  fee  simple 

?uallties  that  the  law  regards  as  inseparable 
rom  it  such  as  the  right  to  incuml>er  or  con- 
vey. Tney  are,  however,  operative  to  define  the 
estate  given  and  may  act  to  demonstrate  that 
what  without  them  would  be  a  fee  was  intended 
to  be  a  lesser  estate;  but  if  a  consideration 
of  the  entire  instrument  convinces  the  judgment 
that  the  estate  first  granted  was  intended  to  be 
a  fee  simple,  then  subsequent  clauses  restricting 
alienation,  and  suggesting  that  the  fee  should 
descend  to  the  devisees'  children,  will  not  clog 
or  denude  the  fee  theretofore  granted. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  H  1340-1350,  1608;    Dec.  Dig.  i  601.*] 

7.  Bpecifio  Pebfosmance  (8S  8,  52*)— Coir- 
tkacts  Enfobceabuc— Family  8etti.e>(ert. 

A  decree  for  the  specific  performance  of  a 
contract  is  not  a  matter  of  right  but  rests  in 
the  sound  discretion  of  a  court  and  in  such  an 
action  where  it  appears  that  the  defendant  Is 
an  aged  and  illiterate  woman,  that  the  contract 

gnrports  to  distribute  the  estate  of  her  late 
UBOand  in  violation  of  the  terms  of  his  will, 
and  that  at  the  time  she  signed  the  contract 
she  did  not  know  her  legal  rights,  but  was  over- 
reached  by  her  children,  the  petition  will  be 
dismissed. 

[Ed.  Note.— For  other  cases,  see  Specific  Per- 
formance, Cent  Dig.  K  17,  18,  155-159;  Dec. 
Dig.  a  8,  52.*] 

8.  Equity  (|  89*)— Reuef^-Cancellation  or 
Deed. 

An  undelivered,  deed  signed  by  the  donee 
of  a  power  who  was  ignorant  of  her  rights  and 

f)rivlleffes  will  be  canceled  in  an  equitable  action 
nvolving  a  construction  of  the  will  creating  said 
power,  and  of  the  rights  of  ail  devisees  and  leg- 
atees named  therein. 

eSd.  Note.— For  other  cases,  see  Equity,  Cent 
.  H  104-114;   Dec.  Dig.  I  89.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Conrt,  Washington 
County;   Sutton,  Judge. 

Action  by  William  H.  Loosing  and  others 
against  Fred  Loosing  and  others.  Judgment 
for  defendants,  and  plaintiffs  appeal.  Judg- 
ment set  aside,  and  another  Judgment  ren- 
dered. 

R.  O.  Brome,  F.  Dolezal,  W.  S.  Cook,  and 
dark  O'Hanlon,  for  appellants.  John  J. 
Sullivan,  Louis  Llghtner,  and  J.  H.  Gross- 
man, for  appellees. 

ROOT,  J.  William  Loosing  was  bom  In 
Germany,  but  had  resided  in  Washington 
county.  Neb.,  45  years  next  preceding  his 
death,  which  occurred  In  NoTembeSk   1906, 


•ror  otiMr  easM  ■••  sama  toplo  and  swtlon  KDUBSR  In  Dec.  *  Am.  Dlci.  UOT  to  date,  *  Reportar  Indexes 


Digitized  by  LjOOQ  IQ 


708 


122  NORTHWESTERN  REPORTER. 


(Neb. 


and  wUI  be  referred  to  hereafter  as  tbe  tes- 
tator. Hannab  liooslng,  defendant  herein, 
is  the  testator's  widow.  At  tbe  time  of  her 
marriage  she  was  the  mother  of  an  Illegiti- 
mate infant  son,  who  thereafter  resided  with 
his  mother  and  her  bnsband  until  29  years 
of  age,  In  1890.  Six  adult  children  also  sur- 
vived tbe  testator,  William  H.,  Lena  Moravec, 
Caroline  Ruwe,  and  Roslna  Thompson,  all  of 
whom  are  married  and  are  plaintiffs  herein, 
Louise,  unmarried,  but  the  mother  of  an 
illegitimate  adult  daughter,  Ida,  and  Fred, 
who  is  also  unmarried,  defendants  herein. 
In  1894  testator  executed  a  will  derisiug  and 
bequeathing  to  his  wife  all  of  his  property. 
Possibly  be  made  another  will  subsequent 
thereto  and  prior  to  1904.  In  the  last-named 
year  he  made  a  will  revolslug  all  former  wills 
by  him  made,  and  disposed  of  his  property 
after  payment  of  his  debts  as  follows : 

"(2)  My  will  lis  that  my  beloved  wife,  Han- 
nah Loosing,  shall  have  the  use  and  disposi- 
tion of  all  my  personal  property,  also  the 
Income  as  long  as  she  lives  off  of  the  follow- 
ing described  land: 

"One  hundred  sixty  acres  In  Nance  County, 
Nebraska,  all  the  land  I  own  there.  The  east 
half  of  the  North-west  quarter  (B  1-2  NW 
1-4)  and  the  west  half  of  the  west  half  of  the 
North  east  quarter,  (W  1-2  W  1-2  NB  1-4)  in 
Section  twelve,  (12)  township  seventeen,  (17) 
Range  nine,  (9),  Washington  County,  Nebras- 
ka, and  the  North  half  of  the  North-west 
quarter  of  section  one,  (N  1-2  NW  1-4) 
township  seventeen,  excepting  thirteen  rods 
along  the  east  side  of  this  (N  1-2  NW  1-4 
1-lT-O), 

"Also  the  south  half  of  the  south-west 
quarter,  and  lot  numbered  two,  all  in  section 
thirty-six,  (36)  excepting  thirteen  rods  along 
the  east  side  of  this  (S  1-2  SW  1-4  and  Lot 
2)  of  said  section  thirty-six,  tovnishlp  eight- 
een (18),  Range  nine,  (9)  Washington  County, 
Nebraska,  also  all  village  lots  as  follows: 
Lots  three  and  four  in  Block  24,  and  lots 
three  and  four  in  Block  thirty-one,  village 
.  of  Arlington,  Nebraska. 

"I  want  my  wife  to  dispose  or  distribute 
this  property  which  I  have  not  devised,  as 
she  sees  fit,  or  deems  best  In  her  judgment. 

"Third.  I  bequeath  to  my  son,  William  H. 
Loosing,  the  East  half  of  the  north-east  quar- 
ter, and  the  east  half  of  the  west  half  of  the 
North-east  quarter,  (E  1-2  NE  1-4  and  B  1-2 
W  1-2  NE  1-4)  all  In  Section  twelve,  (12) 
Township  seventeen,  range  nine,  Washington 
County,  Nebraska. 

"(4)  I  bequeath  to  my  son,  Fred  Loosing, 
the  Southwest  quarter  of  the  south-west 
quarter  section  thirtyone  township  eighteen, 
range  ten.  The  northwest  quarter  of  the 
northwest  quarter  of  section  six,  township 
seventeen  Range  ten  Washington  County, 
Nebraska,  and  the  north  half  of  the  north 
east  quarter  of  section  one  township  seven- 
teen range  nine,  and  thirteen  rods  along  the 
east  side  of  the  north  half  of  the  northwest 
quarter  ^>f  said  section  one  township  seven- 


teen range  nine,  imd  the  south  half  of  the 
south  east  quarter  and  all  of  that  portion  of 
lot  two  In  the  north  half  of  the  south-east 
quarter  and  thirteen  rods  along  the  east  side 
of  the  south  half  of  tbe  south  west  quarter, 
and  thirteen  rods  along  the  east  side  of  lot 
two  in  the  south  half  of  tbe  south  west  quar- 
ter, all  In  section  thirty  six,  township  eight- 
een range  nine,  Washington  Ck>unty,  Nebras- 
ka. This  my  son  Fred  Loosing  is  to  pay  to 
my  daughter  Carllne  Ruwe,  six  thousand  dol- 
lars to  be  paid  to  her  In  four  yearly  payments 
of  fifteen  hundred  dollars  each. 

"(5)  I  bequeath  to  my  daughter  Louise 
Loosing,  the  home  place  where  I  now  live, 
with  the  following  described  lands:  The 
east  half  of  the  northwest  quarter,  and  tbe 
west  half  of  the  west  half  of  the  north  east 
quarter,  all  In  section  twelve,  township  sev- 
enteen, range  lUne,  Washington  County,  Ne- 
braska. 

"This  daughter  la  not  to  have  possession 
of  this  property  untU  after  the  death  of 
my  wife.  I  want  It  distinctly  understood 
that  the  property  I  have  herein  bequeathed 
to  my  two  sons  and  one  daughter  that  they 
shall  not  have  the  right  to  dispose  or  mort- 
gage same,  but  it  shall  be  handed  down 
to  their   children. 

'The  remaining  children  which  I  have  not 
mentioned  In  this  will,  I  will  leave  it  to 
my  wife,  to  give  them  as  she  sees  fit  out 
of  the  property  I  left  for  her  to  dispose' of. 
I  want  William  H.  Loosing  and  Louise 
Loosing  to  pay  to  my  daughter  Caroline 
Ruwe  one  thousand  dollars  each  as  soon  as 
they  get  possession  of  the  property." 

The  widow  and  children  for  a  time  were 
opposed  to  the  1904  will  and  conferred  wltb 
a  view  to  defeating  it  At  the  same  time 
tbe  children  were  formulating  a  plan  for 
the  division  of  their  father's  estate  re- 
gardless of  the  will,  and  called  to  their  assist- 
ance two  neighbors,  Geissleman  and  Vogt, 
who  seem  to  be  honest,  well-meaning  farmer 
folk.  Tbe  will  had  been  deposited  with  the 
county  Judge,  and  he.  In  conformity  with 
law,  had  given  notice  of  a  time  and  place 
for  hearing  evidence  as  to  its  execution. 
The  estate  Is  considerable,  valued  at  about 
$100,000.  William  H.  Loosing,  Mrs.  Thomp- 
son, and  Mrs.  Moravec,  who  was  then  Mrs. 
Kruger,  filed  objections  to  the  probate  of 
the  will.  On  the  26th  of  February,  1906. 
William,  Louise,  and  Fred  Loosing  and 
James  Thompson,  husband  of  Roslna  Thomp- 
son, came  to  the  widow's  home,  some  of  them 
before  noon  and  others  thereafter,  with 
Messrs.  Vogt  and  Greissleman.  Mrs.  Loosing 
in  the  meantime  had  consulted  with  at  least 
two  attorneys,  and  had  been  advised  by  one 
counselor  that  her  Interest  under  the  will 
in  certain  real  estate  was  a  fee,  and  by  the 
other  that  she  would  receive  a  life  estate 
only  therein.  Mrs.  Loosing  cannot  read 
English,  speaks  said  language  Indifferently, 
and  may  be  termed  an  Illiterate  woman.  Tbe 
testimony  concerning  what  was  said  at  the 


Digitized  by 


Google 


Neb.) 


LOOSING  V.  X-OOSIKG. 


709 


February,  1906,  conference  Is  conflicting, 
the  widow  and  Louise  each  testifying  that 
the  other  children  Insisted  that  their  mother 
should  agree  to  a  division  of  the  estate;  that 
the  will  should  not  control,  and  told  her  that. 
If  she  did  not  agree  with  them,  they  would 
be  uulfind  to  heir;  that  she  would  be  sent 
to  the  asylum  should  she  attempt  to  testify 
in  court;  and  that  her  character,  the  repu- 
tation of  her  daughter  Louise,  and  that  of 
the  family  would  be  ruined  If  the  objections 
to  the  probate  of  the  will  proceeded  to  a 
hearing.  About  6  o'clocl:  In  the  evening  the 
children  agreed  among  themselves,  and  their 
mother  assented  to  their  arrangement  Mr. 
Schoettger,  a  banlier  who  spcalcs  both  Ger- 
man and  English,  was  sent  for,  and  wrote 
out  a  contract  which  was  signed  by  the 
widow  and  all  of  her  children.  The  contract 
provided  for  an  allowance  to  the  widow 
of  $1  per  acre  per  year  for  all  of  the  real 
estate  owned  by  the  deceased  at  the  time 
of  bis  death,  that  she  should  have  the  per- 
sonal property  of  the  estate,  and  the.  real 
estate  was  to  be  divided  among  the  children 
according  to  their  views,  and  not  In  con- 
formity with  the  will.  March  16th,  by  agree- 
ment of  all  parties,  the  contract  was  modi- 
fled  so  that  the  widow  would  receive  25  cents 
per  acre  more  each  year  for  the  land.  At 
the  same  time  she  signed  a  deed  purporting 
to  convey  to  Mrs.  Thompson  and  Mrs.  Mora- 
vec  certain  real  estate  subject  to  her  life 
estate.  During,  the  March  conference  it 
was  arranged  that  the  will  should  be  ad- 
mitted to  probate,  and  an  action  prosecuted 
In  the  district  court  to  quiet  each  child's 
title  to  the  real  estate  allotted  to  him  or 
her  by  the  contract  between  them.  March 
23,  1006,  the  will  was  admitted  to  probate, 
and  In  May  of  the  succeeding  year  this  ac- 
tion for  a  speclfle  performance  of  the  con- 
tract was  commenced.  Ida  Loosing,  the 
Illegitimate  daughter  of  Louise,  was  not  a 
party  to  the  contract,  but  is  Impleaded  as  de- 
fendant herein,  She  asserts  title  to  the 
land  devised  her  mother,  subject  to  the  lat- 
ter's  life  estate,  and  prays  that  her  said 
title  be  quieted  and  confirmed.  The  other 
defendants  charge  fraud,  coercion,  and  du- 
ress, and  that  they  signed  the  contract  under 
a  misunderstanding  of  the  legal  effect  of 
the  will.  The  widow  prays  that  the  afore- 
said deed  be  canceled,  and  all  ask  for  equi- 
table relief.  The  district  court  found  for 
defendants,  dismissed  the  widow's  action  for 
a  cancellation  of  the  deed  to  her  daughters, 
without  prejudice  to  another  action,  confirm- 
ed Ida  Loosing  in  the  title  claimed  by  her, 
and  dismissed  the  petition.  Plaintiffs  ap- 
peal. 

1.  A  careful  consideration  of  the  evidence 
falls  to  convince  us  that  the  widow  was 
coerced  Into  signing  the  contract,  bnt  we 
are  satisfied  that  she  did  not  appreciate 
her  rights.  It  is  true  she  had  talten  counsel, 
but  the  advice  given  would  becloud  rather 
than  clarify  the  situation,  and  there  Is  not 


a  shred  of  evidence  to  indicate  that  she 
was  advised  of  the  nature  of  the  power  vest- 
ed In  her.  At  the  best,  there  was  a  great 
confusion  of  Ideas  as  to  the  legal  effect  of 
the  will  and  the  rights  of  the  respective  par- 
ties. It  will  be  observed  that  the  second 
paragraph  of  the  will  gives  the  widow  the 
use  and  disposition  o'f  all  the  testator's  per- 
sonal property;  "also  the  income  as  long  as 
she  lives  off  of  the  following  described  land": 
160  acres  In  Nauce' county  and  certain  real 
estate  In  Washington  county.  Neb.  Subject 
to  that  life  estate,  part  of  the  land  devised 
to  the  widow  for  life  is  devised  to  the  son 
Fred,  part  to  Louise,  and  concerning  the 
remainder  the  testator  says:  "I  want  my 
wife  to  dispose  of  or  distribute  this  prop- 
erty which  I  have  not  devised  as  she  sees 
fit,  or  deems  best  In  her  judgment"  And 
in  the  fifth  paragraph  of  the  will  further 
states:  "The  remaining  children  which  I 
have  not  mentioned  In  this  will  (Mra  Thomp- 
son and  Mrs.  Moravec),  I  will  leave  it  to  my 
wife,  to  give  them  as  she  sees  fit  out  of  the 
property  I  left  for  her  to  dispose  of."  While 
cases  are  not  lacking  to  sustain  the  proposi- 
tion that  a  power  of  sale  added  to  a  life 
estate  in  real  property  vests  the  donee  with 
an  estate  In  fee  simple,  we  think  the  weight 
of  authority  Is  to  the  contrary.  Chapter  8, 
Sugden  on  Powers;  4  Kent's  Commentaries, 
319,  536;  Falrman  v.  Beal,  14  IlL  244;  Walk- 
er V.  Prltchard,  121  111.  221,  12  N.  B.  336; 
Ducker  t.  Burnham,  146  111.  9,  34  N.  B. 
558,  37  Am.  St  Rep.  135;  Burleigh  y.  Clougb, 
52  N.  H.  267,  13  Am.  Rep.  23;  Mansfield  t. 
Shelton,  67  Conn.  390,  35  Atl.  271,  62  Am. 
St  Rep.  285;  Little  v.  Giles,  25  Neb.  818, 
41  N.  W.  186.  The  New  York  decisions  are 
controlled  by  statute,  and  are  not,  for  that 
reason,  authority  upon  the  general  proposi- 
tion In  other  jurisdictions.  The  testator  did 
not  specifically  designate  In  his  will  the 
methods  to  be  pursued  by  his  widow  In  ex- 
ecuting the  power  vested  In  her  by  him,  and 
she,  therefore,  is  at  liberty  to  Indulge  her 
judgment  or  fancy  by  executing  a  deed  or 
a  will.  Proby  t.  Landor,  28  Beav.  604,  6 
Jur.  N.  S.  1278;  Falrman  v.  Beal,  14  III. 
244;  Christy  ▼.  Pulllam,  17  111.  59;  Bur- 
bank  V.  Sweeney,  161  Mass.  400,  37  N.  B. 
669;  Cueman  v.  Broadnax,  37  N.  J.  Law,  608. 
2.  A  superficial  examination  of  the  will 
may  suggest  that  the  precatory  words  re- 
ferring to  Mrs.  Thompson  and  Mrs.  Moravec, 
being  the  children  not  named  in  the  will, 
did  not  clothe  them  with  any  rights  because 
they  are  not  given  a  definite  Interest  in  any 
part  of  their  father's  estate,  and  the  widow's 
discretion  in  the  disposition  of  the  afore- 
said remainder  seems  absolute.  It  will  be 
observed,  however,  that  the  testator  recites 
in  his  will  tha't  be  Is  disposing  of  all  of  his 
possessions  of  every  kind  and  character, 
and  that  he  does  not  make  a  gift  over  to 
any  one  other  than  his  daughters  Roslna 
and  Lena  in  the  event  that  the  widow  falls 
to   make   an    appointment   under   the   wUL 


Digitized  by  VjOOQ  l€ 


710 


122  NOBTHWESTEBN  BBFOBTEB. 


(Neb. 


We  must  also  consider  that  the  testator  and 
his  wife's  Illegitimate  son  August  parted  In 
anger,  and  were  never,  so  far  as  the  record 
discloses,  reconciled,  and  that  August,  In 
1880,  by  threatening  to  sue  his  Stepfather, 
collected  from  him  about  $1,300  for  services 
rendered.  The  record  Is  barren  of  any  evi- 
dence to  furnish  a  reason  for  the  father's 
discrimination  against  his  daughters  Lena 
and  Rosina,  but  taking  all  of  the  facts  into 
considra'atlon,  we  feel  Justified  In  holding 
that  the  testator  did  not  intend  that  any  of 
his  estate  should  go  to  strangers  to  his 
blood;  that  the  power  vested  in  the  widow 
was  created  for  the  benefit  of  Mrs.  Thomp- 
son and  Mrs.  Moravec,  but  that  the  donee 
is  given  a  discretion  In  making  the  divi- 
sion between  her  daughters.  Should  the 
widow  fail  to  act,  no  court  could  exercise 
the  discretion  lodged  with  her,  and,  in  the 
event  of  her  demise,  and  failure  to  make 
an  appointment,  the  daughters  would  take 
the  real  estate  In  equal  shares.  Davy  v. 
Hooper,  2  Vem.  665;  Penny  v.  Turner,  xO 
Jr.  Pt  1,  768  (Eng.  Ch.);  Longmore  v. 
Broom,  7  Ves.  Jr.  124;  Be  White's  Trust, 
Johnson's  Ch.  (Bug.)  656,  70  Reprint,  Bog. 
Rep.  582;  Salisbury  v.  Denton,  3  Jur.  N. 
S.  740;  Reld  v.  Reld,  25  Beav.  468;  Withers 
v.  Teadon,  1  Rich.  Eq.  (S.  C.)  324;  Cruse 
y.  McKee,  2  Head  (Tenn.)  1,  78  Am.  Dec. 
186;  MUllkln  y.  Welllver,  37  Ohio  St  460; 
Smith  V.  Floyd,  140  N.  Y.  837,  86  N.  B.  606. 
3.  It  is  argued  that  the  testator  Intended 
that  William,  Fred,  and  Louise  should  have 
a  life  estate  only  in  the  land  devised  to 
them,  and  without  the  power  to  incumber  or 
alienate,  remainder  to  the  surviving  children 
of  each  devisee,  and,  failing  such  children, 
remainder  to  the  surviving  heirs  at  law  of 
the  testator  or  their  heirs  by  right  of  repre- 
sentation. The  intent  of  a  testator  must 
control,  and  wiU  be  ascertained  from  the 
language  of  the  will  aided  somewhat  by  a 
consideration  of  the  facts  and  circumstances 
surrounding  the  testator  as  reflected  from 
the  evidence,  but  that  intent  will  not  be  In- 
ferred In  flat  contradiction  to,  and  In  vio- 
lation of,  well-established  rules  of  law.  We 
are  committed  to  the  principle  that.  If  a 
testator  In  his  will  devises  an  estate  in  fee 
ilmple,  a  subsequent  clause  attempting  to  de- 
vise over  any  part  of  that  estate  is  void. 
Spencer  v.  Scovll,  70  Neb.  87,  86  N.  W. 
lOlG.  We  are  satisfied  with  the  principle 
stated  In  the  cited  case.  The  difficulty 
arises  in  applying  the  rule  to  the  facts  In 
the  particular  case.  The  rule  does  not  of 
necessity  apply  merely  for  the  reason  that 
the  first  clause  considered  by  itself  might 
be  construed  as  conveying  a  fee  simple. 
The  later  clause,  or  clauses,  may  be  read  in 
connection  with  the  first  one  for  the  pur^ 
pose  of  advising  the  court  whether  it  actual- 
ly did  transfer  the  fee,  and  if  it  does  not  in 
itself  clearly  and  unequivocally  do  so,  and 
by  a  comparison  thereof  with  the  remaining 
parts  of  the  instrument  the  court  is  convinc- 


ed that  the  testator  did  not  in  fact  Intend 
to  vest  the  greater  title  In  the  first  taker, 
the  instrument  will  be  construed  accord- 
ingly. In  other  words,  quoting  Mr.  Justice 
Strong  In  Sheets'  Estate,  62  Pa.  263:  "Sub- 
sequent provision  will  not  avail  to  take  from 
an  estate  previously  given  qualities  that 
the  law  regards  aa  inseparable  from  it  as, 
for  example,  alienability;  but  they  are  op- 
erative to*  define  the  estate  given,  and  to 
show  that  what  without  them  wquld  be  a 
fee  was  Intended  to  be  a  lesser  estate^" 
Haldeman  v.  Haldeman,  40  Pa.  28,  34;  Shal- 
ters  V.  Ladd,  141  Pa.  848,  366.  21  AtL  686; 
Taggart  v.  Murray,  53  N.  Y.  233;  Eaton  ▼. 
Straw,  18  N.  H.  320;  Jarman  on  WUls  (Sth 
Ed.;  Blgelow)  472.  In  Nebraska  words  of 
Inheritance  In  a  deed  or  will  are  not  es- 
sential to  transfer  a  fee-simple  title.  The 
paragraphs  of  the  will  devising  real  estate 
to  William,  Fred,  and  Louise,  if  considered 
by  themselves,  vest  the  devisees  with  a  title 
In  fee  simple.  When  construed  with  the 
remainder  of  the  will.  It  is  apparent  that 
part  of  the  real  estate  is  subject  to  the  wid- 
ow's Ufe  estate.  The  subsequent  clause, 
which  counsel  claim  explains  and  llmita  the 
force  of  the  earlier  ones  in  the  will,  does 
not  Indicate  a  purpose  on  the  part  of  the 
testator  to  cut  down  the  estate  first  grant- 
ed, but  that  the  children  of  the  first  taker 
shall  Inherit  from  their  parents.  If  the  tes- 
tator intended  that  William,  Fred,  and  Loa- 
Ise  should  only  take  a  life  estate,  a  remain- 
der could  not  descend  or  "be  handed  down" 
from  them,  and  their  children  could  not  re- 
ceive an  estate,  except  from  the  testator  and 
through  his  will,  and  he  nowbore  in  that  In- 
strument devises  anything  to  the  children  of 
his  children.  There  is  no  residuary  clause, 
and,  if  we  construe  the  will  as  vesting  the 
children  with  a  life  estate  only,  the  remain- 
der will  vest  under  the  statute  relating  to  the 
estates  of  those  dying  intestate,  and  we  do 
violence  to  the  testator's  introductory  state- 
ment in  his  will  that  he  is  thereby  dispos- 
ing of  all  his  estate.  That  the  testator  desir- 
ed William,  Fred,  and  Louise  to  retain  title 
to  the  farms  devised  to  them,  and  that  they 
should  permit  their  children.  If  any  they 
had,  to  succeed  to  that  title,  we  do  not 
question,  but  he  has  nowhere  provided  that 
such  title  shall  proceed  from  himself.  We 
conclude,  therefore,  from  an  examination 
of  the  entire  will,  that  the  estates  devised 
to  William,  Fred,  and  Louise  were  not  cut 
down  to  a  life  estate  by  the  subsequent  state- 
meht  that  the  land  should  be  handed  down 
to  their  children. 

This  being  true,  what  force  must  be  ac- 
corded the  statement  that  the  devisees  shall 
not  mortgage  or  dispose  of  the  land?  In 
Weller  v.  NoflCsinger,  67  Neb.  456,  77  N.  W. 
1075,  we  held  that  a  condition  providing  that 
property  devised  to  trustees  for  years  should 
not  be  aliened  or  incumbered  by  the  benefi- 
ciary during  that  term  was  not  invalid,  and 
in  Albin  v.  Parmele,  70  Neb.  740.  88  N.  W.  28, 


Digitized  by 


Google 


Neb.) 


IN  RE  MANNING'S  ESTATE. 


711 


we  upheld  mich  a  restraint  Imposed  upon  a 
life  estate.  We,  however,  have  never  held, 
nor  do  we  believe  It  to  be  sound  law,  that  a 
general  restraint  against  alienation  may  be 
successfully  attached  to  an  estate  In  fee 
simple.  Such  a  limitation  is  repugnant  to  the 
estate  conveyed,  against  public  policy,  and 
void.  Spencer  v.  Scovll,  70  Neb.  87,  96  N.  W. 
1016;  4  Kent's  Commentaries,  143,  144;  1 
Washburn  on  Real  Property  (6tb  Ed.)  i  143; 
Tomer  r.  Hallowell  Sav.  Inst,  76  Me.  527; 
Anderson  t.  Gary,  36  Ohio  St  606,  38  Am. 
Rep.  G02;  Stansbury  t.  Hubner,  73  Md.  228,  20 
Atl.  904,  IIL.  R.  A.  204,  25  Am.  St  Rep.  5S4 ; 
Kaufman  t.  Burgert,  195  Fa.  274,  45  Atl.  725, 
78  Am.  St  Rep.  813.  In  the  light  of  our  deci- 
sion the  defendant  Ida  Loosing  takes  nothing 
under  the  ;vlll,  and  the  court  erred  In  de- 
creeing to  the  contrary.  The  widow  has  not 
appealed  from  that  part  of  the  decree  dis- 
missing without  prejudice  her  complaint  con- 
cerning the  deed  conveying  the  remainder 
heretofore  referred  to,  to  her  daughters  Ros- 
ina  and  Lena.  Plaintiffs,  however,  request 
a  consideration  of  all  the  issues  raised  by  the 
respective  pleadings.  All  of  the  parties  are 
before  us,  and  we  think  their  rights  as  far 
as  may  be  should  be  finally  determined. 

Plaintiffs  also  urged  that  family  settle- 
ments should  be  upheld,  and  the  contract  l>e- 
tween  the  widow  and  children  of  the  deceased 
specifically  enforced.  While  family  settle- 
ments are  at  times  desirable,  litigants  claim- 
ing title  to  an  estate  by  virtue  of  such  an 
agreement  and  against  an  aged,  infirm,  and 
illiterate  widow  bear  the  burden  of  proving 
that  the  defendant  understood  the  contract, 
and  was  not  deceived  by  her  active  and  ag- 
gressive children.  In  re  Panko's  Estate 
(Neb.)  119  N.  W.  224.  So  far  as  the  widow 
is  concerned,  she  may  or  may  not  receive  as 
much  under  the  contract  as  under  the  will, 
but  the  contract  deprives  Iier  of  the  control 
of  part  of  the  land  devised  to  her  by  her 
husband.  Those  responsible  fop  the  settle- 
ment were  concerned  principally  in  advancing 
their  own  Interests.  There  is  evidence  which 
we  do  not  care  to  specifically  mention  that 
satisfies  us  that  the  widow  was  overreached 
in  the  transaction,  and  did  not  exercise  a 
discretion  In  dlsi)oslng  of  the  remainder  of 
the  real  estate  under  the  power  in  tlie  will. 
We  are  confident  that  she  at  no  time  knew 
or  understood  her  rights  in  the  premises,  but 
was,  possibly  inadvertently,  misled  by  those 
ui)on  whom  she  had  a  right  to  lean  for  com- 
fort and  support  It  is  also  doubtful  wheth- 
er she  ever  delivered  the  deed  to  Mrs.  Thomp- 
son and  Mrs.  Moravec.  The  district  court 
exercised  a  wise  discretion  In  refusing  a 
specific  performance  of  the  contract  The 
widow  is  advanced  in  years,  and  this  liti- 
gation should  end  so  far  as  she  is  concerned. 
What  has  been  said  here  is  without  preju- 
dice to  the  rights  of  the  litigants  should  the 
probate  court  vacate  its  order  admitting  the 


will  to  probate  and  that  instrument  eventnal- 
ly  l>e  held  invalid. 

The  judgment  of  the  district  court,  there- 
fore, is  set  aside,  a  decree  will  l>e  entered 
in  this  court  In  conformity  with  this  opinion, 
and  taxing  all  of  the  costs  in  the  district 
court  and  in  this  court  to  plaintiffs  and  Fred 
Loosing. 

REESE,  C.  J.,  absent  and  not  sitting. 


In   re   MANNING'S   ESTATE. 
BONACUM  V.  MANNING  et  al.    (No.  16,407.) 
(Supreme  Court  of  Nebraska.     Sept  25,  1009.) 

1.  Wills   (S   614*)  —  Constbuction  —  Bstatb 
Given. 

A  provision  in  the  will  of  a  testator  who 
died  prior  to  the  enactment  of  chapter  49,  if. 
193,  Laws  Neb.  1907  (sections  4901  et  seq..  Cob- 
bey's  Ann.  St  190T),  that  his  widow  should 
"have  her  dower  right  in  all  property  real  and 
personal  of  which  I  die  possessed,  construed  to 
mean  that  she  had  a  right  to  the  net  income 
during  her  natural  life  from  one-third  of  his 
estate. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  SI  1393-1416;   Dec.  Dig.  |  614.*] 

2.  EXECDTOBB  AND  ADMINISTHATOBS   (§  138*)— 

PowEB  TO  Sell  Real  Estate. 

If  a  reasonable  construction  of  a  will  clear- 
ly establishes  that  an  executor  is  charged  with 
the  duty  of  dividing  the  testator's  estate  and  to 
do  so  will  necessitate  a  sale  of  real  property,  a 
power  is  thereby  given  the  executor  to  seU  and 
convey  said  realty. 

[BSd.  Note.— For  other  oases,  see  Executors  and 
Administrators,  Cent  Dig.  g  561;   Dec.  Dig.  | 
138.*] 
S.  EXXCXTTOBS  AITD   Adhinistbatobs   (U   120, 

121*)— Persons  Attthobizbd  to  Execute. 
In  such  a  case  if  the  executor  fails  to  qual- 
ify, or,  after  qualification,  resigns  his  trust,  and 
the  will  does  not  indicate  that  the  testator  re- 
posed a  special  confidence  in  the  executor,  a 
power  to  sell  and  convey  real  estate  will  pass 
to  and  vest  in  any  qualified  administrator  with 
the  will  annexed  appointed  by  the  court  to  ad- 
minister said  estate. 

[Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  §S  485,  486,  493. 
493%;   Dec  Dig.  8J  120,  121.*] 

4.  Homestead    ({    154*)— TSLANSrEB-^oiNDKB 
or  Husband  and  Wife. 

"Neither  the  husband  nor  the  wife  can 
abandon  the  family  homestead,  and  thereafter 
sell  and  convey  the  same  to  another,  to  the  ex- 
clusion of  the  homestead  right  of  an  insane  per- 
son." Weatherington  t.  Smith,  77  Neb.  369, 
112  N.  W.  566. 

[E^d.  Note.— For  other  cases,  see  Homestead, 
Dec.  Dig.  S  154.*] 

5.  EXECUTOBS   AND   Adkinistbatobs    ({{    177, 

178,  182*)— Widow's  Allowance. 

''The  widow  of  a  testator  is  entitled,  nnder 
subdivision  1,  {  176,  c.  23,  Comp.  St  1905,  to 
the  diattels  therein  specified,  and  also  to  S200  in 
cash  from  her  husband's  estate,  and  said  prop- 
erty la  not  assets  in  the  bands  of  the  execu- 
tor." In  le  Fletcher's  Estate  (Neb.)  119  N.  W. 
232. 

[Ed.  Note.— For  other  cases,  see  Executors 
and  Administrators,  Cent  Die.  §S  667,  668k  070^ 
686-693;    Dec.  Dig.  S|  177,  178,  182.*] 

6.  Wills  (§  782*)— ELEcnoif  bt  Widow. 

Prior  to  the  enactment  of  chapter  49,  p. 
198,  Laws  Neb.  1907,  the  widow  of  a  testator 


•For  other  eases  see  same  toplo  and  section  NUMBBR  la  Dee.  *  Am.  Diss.  1907  to  date^  A  Boporter  laJexes 


Digitized  by  LjOOQIC 


712 


122  NORTHWESTERN  REPORTER. 


(Netk. 


did  not  hart  the  tight  bj  electing  to  take  under 
the  law,  and  not  under  the  will  of  her  deceased 
spouse,  to  inherit  his  personal  property  as 
though  he  had  died  Intestate. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  K  2018-2033 ;   Dec.  Dig.  S  782.*] 

7.  Executors  and  Aduinistbatobb  (|  176*) 

— Widow's  Support. 

If  the  widow  during  the  time  her  deceased 
husband's  estate  Is  in  process  of  administration 
is  in  the  custody  of  the  state  in  a  hospital  for 
the  insane,  and  maintained  by  it  without  cost 
to  her  or  his  estate,  it  is  within  the  discretion 
of  the  county  court  not  to  allow  her  anything 
for  support  during  that  period. 

[Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  I  063;  Dec.  Dig. 
i  176.*] 

8.  Insane  Peksons  ({  94*)— Ouabdiaii  Ad  la- 

TEM. 

It  is  the  duty  of  a  guardian  ad  litem  of  an 
insane  defendant  to  submit  to  the  court  for  its 
consideration  every  relevant  fact  involving  the 
rights  of  his  ward:  but,  if  the  guardian  errs, 
it  is  the  duty  of  the  court  to  protect  the  rights 
of  the  incompetent,  regardless  of  the  conduct 
of  the  guardian. 

[Ed.  Note.— For  other  cases,  se«  Insane  Per- 
sons, Dec.  Dig.  {  94.*] 

(Syllabus  by  the  Court) 

On  rehearing.     Judgment  below  reversed 
and  remanded. 
For  former  opinion,  see  119  N.  W.  672. 

ROOT,  J.  An  opinion  written  by  Judge 
Fawcett  in  this  case  may  be  found  In  119 
N.  W.  672.  Upon  motion  for  a  rehearing  and 
a  diminution  of  the  record  it  appears  that 
the  cause  originated  in  the  county  court  up- 
on application  for  an  order  distributing  tbe 
estate  of  the  deceased,  and  that  an  appeal 
was  perfected  to  the  district  court  from  the 
order  made  in  response  thereto.  The  cause 
comes  here  upon  tbe  appeal  of  tbe  bishop  of 
Jlilncoln  from  tbe  order  of  distribution  made 
by  tbe  district  court 

1.  Tbe  evidence  establishes  that  about  1871 
tbe  testator,  by  the  exercise  of  a  homestead 
or  pre-emption  right,  acquired  title  to  a  quar- 
ter sectidn  of  land  within  tbe  present  bound- 
aries of  Furnas  county,  and  thereafter  resid- 
ed thereon  with  bis  wife  as  their  home.  In 
1883  she  was  adjudged  a  proper  person  to  re- 
ceive treatment  In  a  hospital  for  the  insane, 
and  was  incarcerated,  and  ever  since  lias  re- 
mained in  one  of  said  institutions.  Subse- 
quently the  husband  sold  and  conveyed  the 
farm,  and  became  the  owner  of  lots  9,  10,  11, 
and  12,  in  block  15,  In  the  village  of  Arapa- 
hoe, and  until  bis  death  resided  thereon  as 
bis  home,  part  of  tbe  time  witb  a  daughter 
and  grandson.  Manning,  the  testator,  owned 
no  other  re'al  estate  at  tbe  time  of  bis  death, 
which  occurred  in  June,  1002.  In  1899  Man- 
ning made  bis  last  will  and  testament,  con- 
taining tbe  following  provisions: 

"Item  I.  Whereas  my  beloved  wife,  Ellen 
Manning,  is  at  present  time  an  Inmate  of  the 
Hospital  for  tbe  insane  at  Hastings,.  Nebras- 
ka, and  has  been  pronounced  incurable  by 
competent  medical  authority;   now  therefore 


Bboold  It  happen  contrary  to  all  expectation 

that  the  said  Ellen  Manning,  my  beloved  wlfa 
would  be  restored  to  her  right  reason,  it  is 
my  will  that  she  hare  her  dower  right  tn  all 
property,  real  and  personal  of  which  I  die 


"Item  II.  I  hereby  constitute  and  appoint 
Andrew  Meyerle,  of  Gosper  county,  and  state 
of  Nebraska,  the  sole  executor  of  this  my 
last  will  and  testament  He  shall  pay  all  my 
Just  debts.  If  I  have  any  as  also  tbe  expenses 
of  my  last  sickness  and  of  my  funeraL 

"Item  III.  It  is  my  will  that  tbe  afore- 
mentioned Andrew  Meyerle  shall  after  my 
death  take  possession  of  all  property  of  which 
I  may  die  possessed  real  and  personal  wher- 
ever found  and  that  he  divide  the  said  prop- 
erty into  three  equal  parts.  One  part  where- 
of I  give  and  bequeath  to  the  Rt.  Bev.  Thom- 
as Bonacum  Bishop  of  Lincoln,  Nebraska, 
and  to  his  successors  in  office  in  trust  In  or- 
der to  enable  the  said  Rt  Rer.  Thomas  Bo- 
nacum and  his  successors  In  office  to  erect 
and  maintain  a  Roman  Catholic  Orphanage 
at  such  a  place  In  tbe  state  of  Nebraska  as 
tbe  said  Rt  Rer.  Thomas  Bonacum  or  bla 
successors  In  office  may  determine. 

"In  consideration  of  the  bequest  herein 
made  to  tbe  Rt  Rev.  Thomas  Bonacum  and 
bis  successors  in  office  and  acting  on  bis  sug- 
gestion it  is  my  will  that  a  mass  of  requiem 
shall  be  said  annually  for  all  time  for  the 
repose  of  my  soul,  and  the  soul  of  my  bo- 
loved  wife,  Ellen  Manning,  on  the  anniver- 
sary of  our  respectlTe  deaths,  and  acting  fur- 
ther on  the  suggestion  of  tbe  aforesaid  Rt 
Rev.  Thomas  Bonacum,  Bishop  of  Lincoln,  It 
is  my  wish  that  a  memorial  tablet  be  set  or 
erected  in  the  said  orphanage  to  commemo- 
rate my  benefaction.  And  the  remaining  two 
parts  of  my  estate  I  give  and  bequeath  to  my 
children,  John  Manning,  Margaret  Manning, 
Frederick  Manning  and  William  Manning  to 
be  equally  divided  among  them,  share  and 
share  alike." 

After  considerable  litigation,  the  appoint- 
ment of  a  special  administrator,  and  several 
administrators  with  the  will  annexed,  the 
will  was  established  and  tbe  estate  settled. 
In  1904,  upon  tbe  application  of  an  adminis- 
trator with  tbe  will  annexed,  a  license  was 
issued  by  the  Judge  of  tbe  district  court,  and 
said  lots  10,  11,  and  12  were  sold  for  $5HU. 
There  was  no  necessity  for  said  sale  to  se- 
cure money  to  pay  claims  allowed  against  the 
estate  or  the  costs  of  administration.  The 
will,  however,  plainly  directs  the  executor  to 
divide  all  of  tbe  estate,  real  and  personal, 
among  five,  and  possibly  six,  devisees  In  such 
proportions  as  to  make  it  Imperattve  that  the 
lots  be  sold  and  their  proceeds  divided,  and 
therefore  a  license  from  tbe  district  court 
was  not  necessary  to  vest  the  executor  witb 
a  power  already  created  by  the  will.  Chick 
V.  Ives,  2  Neb.  (Unof.)  879,  90  N.  W.  751. 
There  being  nothing  in  the  will  to  suggest  a 


•For  otliar  eases  see  same  topic  and  section  NUMBER  In  Deo.  ft  Am.  Diss.  1907  to  date,  *  Roportar  Indaxas 


Digitized  by  VjOOQ  l€ 


Neb.) 


IN  RE  MANNING'S  ESTATE. 


713 


tpecial  confidence  In  the  executor,  tbe  power 
to  sell  and  convey  vested  In  ttae  succesalve 
administrators  with  the '  will  annexed. 
Schroeder  v.  Wlloox,  39  Neb.  136,  57  N.  W. 
1081.  in  the  county  court  the  guardian  ad 
litem  for  the  Insane  widow  purported  to  elect 
for  his  ward  to  reject  the  provisions  of  the 
will  and  that  she  take  under  the  law. 

2.  We  have  not  been  favored  with  a  brltf 
by  counsel  for  the  widow  or  children,  but  an 
oral  argument  In  their  behalf  was  made  at 
tbe  bar.  The  will  is  reasonably  plain.  It 
first  provides  that,  should  the  widow  regain 
taer  reason,  she  should  "have  her  dower  right 
in  all  property  real  and  personal  of  which  1 
die  possessed."  While  a  dower  estate  in  per- 
sonal property,  money,  or  choses  in  action  is 
not  recognlaed  by  the  law,  it  is  easy  to  un- 
derstand that  the  testator  desired  his  wife  to 
have  tbe  use  during  her  natural  life  of  one- 
tbird  of  his  estate,  provided  she  should  be- 
come sane.  The  intention  of  the  testator  be- 
ing manifest,  it  is  tbe  duty  of  the  courts  to 
carry  that  Intention  Into  effect  notwithstand- 
ing the  improper  use  of  technical  words.  Un- 
til the  wife  becomes  sane  or  departs  this 
life,  one-third  of  the  estate  in  question,  aft- 
er the  payment  of  claims,  the  widow's  allow- 
ance, and  the  costs  of  administration,  should 
be  held  Intact,  in  trust  by  some  person,  to  the 
end  that,  should  she  cease  to  be  demented, 
she  shall  enjoy  tbe  net  income  from  said 
funds  during  her  natural  life.  Two-thirds 
of  said  estate  should  be  divided  as  follows: 
One-third  part  thereof  to  Right  Rev.  Thomas 
Bonacom,  Bisbop  of  Lincoln,  Neb.,  or  to  bis 
■nccessors  in  oflSce,  in  trust  for  the  benefit  of 
the  orphanage  referred  to  In  the  will,  and 
two-thirds  thereof  in  equal  shares  among  the 
four  chllren  named  in  said  will,  or  to  the 
children  by  right  of  representation  of  those 
devisees  who  may  depart  this  life  before  said 
division  is  made,  the  fund  set  apart  for  the 
widow  and  all  unpaid  increment  thereof  up- 
on her  death  to  be  divided  among  the  chil- 
dren and  the  bishop  of  Lincoln  In  trust  in 
tbe  same  proportions  as  the  two-thirds  of 
tbe  estate  were  distributed. 

S.  The  learned  trial  Judge  found  that  the 
Arapahoe  lots  constituted  the  testator's 
homestead  at  tbe  time  of  his  death.  If  this 
were  true,  tbe  will  would  only  act  upon  the 
remainder,  subject  to  tbe  widow's  life  estate 
in  two  of  said  lots.  Section  6291,  Cobbey's 
Ann.  St  1907.  The  license  of  tbe  Judge  of 
the  district  court  would  not  authorize  a  sale 
of  tbe  homestead.  TIndall  v.  Peterson,  71 
Neb.  160,  98  N.  W.  688.  99  N.  W.  659.  The 
persons  dalmlng  title  through  John  Manning 
to  the  Furnas  county  farm  heretofore  refer- 
red to  are  not  before  us,  and  we  do  not  as- 
sume to  say  that  they  may  not  be  In  posi- 
tion to  successfully  defend  their  title  to  that 
property.  We  must  however,  determine 
the  homestead  feature  of  this  case  upon  the 
record  before  us,  and  hold,  so  far  as  the 
parties  hereto  are  concerned,  that  this  fea- 
ture of  the  Instant  case  Is  ruled  by  Weather- 


ington  r.  Smith,  77  Neb.  863,  109  N.  W.  381, 
18  L,  R.  A.  (N.  S.)  430,  124  Am.  Bt  Rep. 
866,  Id.,  77  Neb.  869, 112  N.  W.  566,  wherein 
we  held  that  "neither  the  husband  nor  the 
wife  can  abandon  the  family  homestead, 
and  thereafter  seU  and  convey  tbe  same  to 
another  to  the  exclusion  of  the  homestead 
right  of  an  insane  person."  If  the  homestead 
estate  of  an  Insane  husband  cannot  be  de- 
raigned  by  the  sane  wife's  abandobment  of 
It  and  her  subsequent  execution  of  a  deed 
purporting  to  convey  It  for  much  stronger 
reasons,  the  sole  deed  of  the  husband,  made 
before  he  bad  departed  from  the  home,  will 
not  convey  the  homestead  interest  of  tbe 
insane  wife.  The  court  therefore  should 
have  ignored  all  claim  of  a  homestead  Inter- 
est made  on  behalf  of  tbe  widow  in  the  vil- 
lage lots  which  sold  for  less  than  $600. 

4.  The  guardian  ad  litem  assumed  to  elect 
for  the  widow  that  she  would  take  under  ttae 
law,  and  not  according  to  tbe  will;  and, 
while  there  is  no  separate  affirmative  entry 
of  either  court  approving,  that  election,  the 
trend  of  tbe  orders  made  Indicates  an  approv- 
al of  tbe  guardian's  action.  In  this  we  think 
there  was  error  prejudicial  to  the  property 
rights  of  the  widow.  The  statute  in  force  at 
the  time  John  Manning  died  gave  a  widow 
the  right  to  elect  whether  she  would  accept 
the  provisions  of  her  husband's  will  or  recov- 
er dower  in  his  lands,  but  did  not  vest  her 
with  the  right  to  Ignore  the  will  and  inherit 
his  personal  property  as  though  be  had  died 
intestate.  In  the  instant  case  the  vrlll  pre- 
served the  widow's  dower  estate  In  tbe  tes- 
tator's lands,  and  devised  her  the  use  dur- 
ing her  natural  life  of  one-third  of  bla  per- 
sonal property,  provided  she  recovered  her 
reason.  If  she  remained  incompetent,  It 
would  be  of  but  little  moment  to  her  whether 
she  had  the  use  of  one-third  part  of  the 
four  lots  aggregating  but  little  over  $500 
In  value,  or  the  use  of  all  of  said  real  estate. 
It  was  therefore  to  the  widow's  interest  to 
take  under  tbe  will,  and  not  tbe  law.  It  is 
the  duty  of  a  guardian  ad  litem  to  stibmit 
to  the  court  all  relevant  defenses  or  legal 
claims  bis  client  may  have,  but  courts  will 
protect  the  rights  of  Incompetents  before 
them  whether  the  guardian  has  proceeded 
wisely  or  not  Andrews,  Administrator,  t. 
Hall  et  al.,  15  Ala.  85 ;  Stark  v.  Brown,  101 
111.  395.  A  due  regard  for  tbe  widow's  rights 
impels  us  to  Ignore  the  attempted  election 
of  the  guardian  ad  litem. 

5.  The  court  was  right  In  assigning  to  the 
widow  $200  out  of  the  personal  property  of 
her  husband.  She  should  also  have  been 
awarded  tbe  wearing  apparel  and  ornaments 
of  tbe  deceased  and  all  of  the  household 
furniture.  None  of  said  property  Is  an  as- 
set in  the  hands  of  the  executor,  but  Is  tbe 
absolute  property  of  the  widow.  In  re  Fletch- 
er's Estate  (Neb.)  119  N.  W.  232.  During 
the  settlement  of  tbe  estate  tbe  widow  was 
supported  by  tbe  state  without  expense  to 
the  estate  of  either  spouse,  and  therefore  the 


Digitized  by  VjOOQ  l€ 


714 


122  NORTHWESTBBN  BBPOBTEB. 


(Neb. 


court  did  not  abuse  Its  discretion  In  refusing 
to  make  an  allowance  for  her  support. 

The  Judgment  of  the  district  court  Is  there- 
fore reversed,  and  the  cause  remanded  for 
further  proceedings. 


WIRTH  ▼.  WEIGAND  et  aL      (No.   15,784.) 
(Supreme  Court  of  Nebraska.    Sept  25,  1809.) 

1.  IRSANB  PeBBONB  ({  100*)  —  JUDOHEHT 
AOAINBT— VACATIOW— FBAUD. 

Where  a  judgment  or  decree  has  been  ea- 
tered  against  an  insane  defendant  through  per- 
jury or  fraud  on  the  part  of  the  prevailing  par- 
ty, such  defendant  may  proceed  by  an  origmal 
suit  in  equity  to  impeach  such  judgment  or 
decree,  and  bave  leave  to  answer  and  defend 
the  same,  and  is  not  obliged  to  wait  for  that 
purpose  until  his  incompetency  has  been  re- 
moved, but  may  proceed  at  any  time  through 
his    legally   appointed    guardian. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  |  182;    Dec.  Dig.  {  100.*^ 

2.  INBAKK  PeBSONB  (g  97*)  —  ACTION  BT 
GnABDIAN  —  PlETITION  —  SUFFICIENCY— CA- 
PACITY TO  Sna. 

Facts  alleged  in  the  petition,  and  admitted 
b^  the  demurrers,  held  sufficient  to  show  plain- 
tiff's legal  capacity  to  sue. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Dec.  Dig.  S  97.*] 

3.  Insane  Pebsonb  ({  100*)— Yacatiitq  Judq- 
itENT— Petition— Sufficiency. 

Petition  examined,  and  held  to  state  a 
cause  of  action. 

lEd.  Note. — For  other  cases,  see  Insane  Per- 
sons, Out  Dig.  {  182 ;  Dec.  Dig.  {  100.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Otoe  County; 
Travis,  Judge. 

Action  by  Bridget  A.  Wlrth  by  J.  Robin 
Bonwell,  guardian  of  her  estate,  against 
Reglna  Welgand  and  another.  From  a  judg- 
ment for  defendants  after  sustaining  a  de- 
murrer to  the  petition,  plaintiff  appeals.  Be- 
versed  and  remanded. 

Pltzer  &  Hayward,  for  appellant  E.  F. 
Warren,  D.  W.  Livingston,  and  A.  P.  Moran, 
for  appellees. 


FAWCETT,  J.  This  action  was  commenc- 
ed In  the  district  court  of  Otoe  county  by 
J.  Bobln  Bonwell,  as  guardian  of  the  estate 
of  plaintiff,  Bridget  A.  Wlrth.  The  con- 
troversy Involves  the  title  to  certain  lands 
In  said  county.  The  defendants  severally 
demurred  to  plaintiffs  petition.  Their  de- 
murrers were  sustained,  and  plaintiff's  action 
dismissed.    Plaintiff  appeals. 

The  points  made  by  the  two  demurrers  are: 
That  plaintiff  has  no  legal  capacity  to  sue. 
That  the  court  has  no  jurisdiction  of  the 
subject-matter.  That  there  la  another  ac- 
tion pending  In  which  the  title  to  the  prop- 
erty in  controversy  In  this  action  can  be 
settled.  That  the  action  was  permaturely 
brought  That  the  petition  does  not  state 
facts  sufBcIent  to  constitute  a  cause  of  action. 


The  petition  alleges  substantially  thai: 
plaintiff  is  the  same  person  who  was  made 
defendant  in  an  action  commenced  against 
her  in  the  same'conrt  on  March  25,  1899,  by 
her  husband,  Valentine  Wlrth;  that  the  rec- 
ord in  said  cause  shows  that  at  the  time 
said  action  was  instituted  plaintiff  was  in- 
sane; that  she  has  ever  since  said  time  been 
and  Is  now  Insane  and  confined  in  the  hos- 
pital for  the  Insane  at  Lincoln;  that  no  gen- 
eral guardian  was  ever  appointed  for  her 
until  on  or  about  Blarch  27,  1907,  when  the 
said  Bonwell  "was  duly  appointed  guardian 
of  her  estate,  and  that  he  thereupon  duly 
qualified  as  such  guardian,  and  is  now  duly 
qualified  and  acting  guardian  of  her  estate. 
Letters  of  guardianship  so  issued  out  of  and 
upon  and  by  the  judgment  and  order  of  the 
county  court  of  Otoe  county,  Neb."  These 
allegations  are  sufficient  to  show  plaintiff's 
capacity  to  sue. 

The  record  before  us  shows  the  following 
facts,  admitted  by  the  demurrers:  That 
plaintiff  became  the  owner  and  obtained  title 
to  the  property  in  controversy  August  23, 
1875;  that  she  and  her  husband  lived  upon 
said  premises  from  that  time  until  Novem- 
ber 21,  1892,  when  she  was  committed  to 
the  hospital  for  the  Insane,  where  she  has 
ever  since  remained;  that  at  the  time  she 
became  the  owner  of  said  property,  and  for 
more  than  ten  years  thereafter  she  was 
sane;  that  on  March  25, 1899,  the  said  Valen- 
tine Wlrth  commenced  suit  against  her  in 
the  district  court  to  establish  his  ownership 
of  said  property  and  to  quiet  his  title  there- 
to on  the  ground  that  he  furnished  the  mon- 
ey for  the  purchase  of  said  property,  and  was 
the  equitable  owner  thereof;  that  said  cause 
was  called  up  for  trial  at  a  time  when  the 
guardian  ad  litem  of  his  wife  was  not  only 
absent  from  the  court,  but  absent  from  the 
city  where  the  court  was  being  held;  that, 
on  the  trial  of  said  cause,  no  competent  evi- 
dence was  offered  to  establish  the  material 
allegations  of  said  Wlrth's  petition;  that 
the  only  evidence  given  was  the  testimony 
of  the  said  Wlrth  himself,  which  was  not 
only  Incompetent,,  but  untrue,  and  that  it 
was  upon  the  strength  of  such  testimony  that 
the  court  on  May  11,  1899,  entered  a  decree 
which  divested  the  defendant  In  said  suit, 
who  was  then  insane  and  in  an  insane  asy- 
lum, of  all  title  and  Interest  In  and  to  her 
estate  and  invested  said  title  In  her  hus- 
band; that  no  exceptions  were  given  to  the 
defendant  in  said  suit,  nor  was  any  bill  of 
exceptions  preserved  or  settled  In  order  to 
enable  her  or  those  who  might  legally  there- 
after represent  her,  to  prosecute  an  appeal 
from  the  judgment  entered  therein;  that  the 
said  Valentine  Wlrth  died  on  or  about  the 
day  of  December,  1906,  testate;  that 


his  will  was  thereafter  admitted  to  probate 
in  the  county  court  of  Otoe  county;  that 
said  estate  has  been  fully  administered  and 


•Por  ottor  esMs  ■••  sam*  toplo  and  section  NUUBBR  in  Dao.  *  Am.  Digs.  1907  to  data,  *  Reporter  Isdezw 


Digitized  by 


Google 


Ndk) 


WIBTH  ▼.  WEIQAND. 


715 


an  order  of  dlatribntlon  entered;  tbat  by 
Bald  last  will  and  testament  the  said  Valen- 
tine Wlrth  devised  all  of  his  real  estate  to 
the  defendants  Weigand,  a  niece,  and  Wlrth, 
a  nephew,  subject  to  the  dower  Interest 
therein  of  plaintiff  as  the  widow  of  said 
Valentine  Wlrth;  that  on  April  27,  1907,  de- 
fendant Wlrth  filed  In  said  court  against 
plaintiff  and  the  defendant  Weigand,  his 
petition  praying  for  a  partition  of  the  lands 
In  controversy;  that  in  said  action  an  answer 
has  been  filed  by  Thomas  F.  Roddy  as  guard- 
Ian  ad  litem  of  plaintiff  denying  any  title  or 
interest  In  the  said  Wlrth  or  Weigand  to 
said  lands,  and  an  answer  to  the  same  ef- 
fect has  been  filed  in  said  cause  by  plaintiff 
through  her  general  guardian;  tbat  her  de- 
fenses to  said  action  of  her  said  husband, 
which  were  neither  pleaded  for  her  nor  made 
for  her  upon  the  trial,  were: 

"(1)  That  at  the  time  of  the  purchase  of 
said  lands  by  her,  upon  August  23,  1875,  she 
was  not  of  unsound  mind,  nor  did  she  be- 
come so  for  more  than  10  years  thereafter. 

"(2)  That  the  said  plaintiff  Valentine 
Wlrth  did  not  furnish  the  purchase  price  for 
■aid  property,  and  tliat  his  possession  there- 
of as  alleged  In  said  petition  was  not  ad- 
verse to  her  interests,  but  was  with  her  con- 
sent for  the  purpose  of  cultivation. 

"(3)  That  the  taxes  thereon  during  the 
time  alleged  in  plaintiff's  petition  to  have* 
been  paid  were  paid  from  the  income  and 
produce  derived  from  said  lands  as  the  re- 
sult of  the  labors  of  both  the  said  Valentine 
Wirtb  and  herself. 

"(4)  That  the  statute  of  limitations  had 
mn  against  any  claim  of  ownership  either 
In  law  or  in  equity  in  said  lands  by  the  said 
plaintiff  Valentine  Wlrth. 

"(5)  Tliat,  by  laches,  all  claim  or  any  in- 
terest in  said  lands  by  the  said  plaintiff  ad- 
verse to  the  interests  of  this  i)etitloner  had 
been  barred. 

"(8)  That  said  petition  failed  to  state  a 
cause  of  action,  and  was  insufficient  to  sup- 
port a  decree  thereof  because  of  the  fact 
that,  as  appears  upon  the  face  of  said  peti- 
tion, the  trust  estate  therein  claimed  was 
not  evidenced  in  any  manner  in  writing  sign- 
ed by  this  petitioner,  and  his  estate  there- 
in as  Claimed  was  void  under  and  because 
of  the  statute  of  frauds." 

The  prayer  of  the  petition  is  that  all  pro- 
ceedings in  the  action  begun  by  Florian 
Wlrth  for  partition  of  said  estate  be  stayed 
until  the  final  determination  of  this  action, 
and  that  in  the  action  commenced  by  Val- 
entine Wlrth  the  Judfrment  and  decree  en- 
tered therein  upon  May  11,  1899,  be  set 
aside  and  vacated,  and  that  such  orders  and 
IMTOceedings  be  then  had  and  made  as  will 
reopen  the  said  action  and  revive  or  con- 
ttnne  the  same  in  such  manner  and  so  en- 
titled that  plaintiff  will  be  enabled  to  malce 
Iier  defense  thereto  as  alleged  and  set  out  in 
her  petition,  and  for  such  other  relief  as 
may  be  Just  and  equitable;. 


That  an  appeal  from  the  decree  complain- 
ed of  would,  had  a  proper  record  been  pre- 
served, have  been  successful,  is  clear.  It 
was  the  duty  of  the  court,  as  well  as  of  the 
guardian  ad  litem,  to  see  that  the  interests 
of  the  insane  defendant  In  tbat  suit  were 
fully  preserved  in  every  respect  The  fact 
tbat  the  guardian  ad  litem  was  guilty  of 
laches  cannot  be  imputed  to  the  insane  per- 
son whom  he  was  supposed  to  represent. 
Under  the  circnmBtances  alleged,  the  guard- 
ian ad  litem  should  at  least  have  preserved  a 
bill  of  exceptions  and  filed  the  same  with 
the  clerk  of  the  court  In  such  case,  if  bo 
failed  to  prosecute  an  appeal,  the  plaintiff 
could,  within  the  statutory  time  after  re- 
covering from  her  Insanity,  if  she  ever  did 
80  recover,  prosecute  the  appeal,  or  her  le- 
gal guardian  could  do  so  in  her  behalf. 
Such  precautionary  steps  not  having  been 
talcen  In  her  behalf,  she  Is  now  remediless 
if  an  action  such  as  Is  here  being  prosecuted 
in  her  behalf  will  not  lie.  A  court  of  equity 
is  invested  with  the  inherent  power  to  grant 
relief  under  such  circumstances.  But  It 
is  insisted  that  the  action  was  premature- 
ly brought;  that  conceding  that  plaintiff 
would  be  entitled  to  have  the  Judgment  com- 
plained of  opened  up  and  be  permitted  to  de- 
fend in  the  event  of  her  again  becoming 
sane,  no  such  action  could  be  maintained 
prior  to  tbat  time.  Tbia  contention  Is  bas- 
ed upon  section  17  of  the  Code  of  Civil  Pro- 
cedure, which  provides:  "If  a  person  enti- 
tled to  bring  any  action  mentioned  In  this 
title  *  *  *  be,  at  the  time  the  cause  of 
action  accrued,  •  •  •  Insane,  •  •  • 
every  such  person  shall  be  entitled  to  bring 
such  action  within  the  respective  times  lim- 
ited by  this  title  after  such  disability  shall 
be  removed."  Commenting  upon  this  sec- 
tion of  the  statute,  counsel  for  appellees 
say:  "That  is  to  say,  Mrs.  Wlrth,  if  she  re- 
covers her  reason,  can  bring  an  action  to 
enforce  her  rights  (if  any  she  have)  within 
the  period  allowed  by  law,  in  this  instance 
two  years  (section  608).  If  she  remain  in- 
sane to  the  end  of  her  life,  possibly  her 
heirs  can  maintain  an  action — we  do  not  dis- 
cuss that  It  Is  immaterial — ^but  no  provi- 
sion is  made  whereby  an  insane  perMon  can 
bring  such  action  while  fhe  disability  exists. 
Hence  this  action  cannot  be  maintained." 
This  construction  of  the  statute  cauuot  be 
sustained.  Finney  v.  Speed,  71  Miss.  32, 
36,  U  South.  465;  Ralston  v.  Lahpe,  8  Iowa, 
17,  74  Am.  Dec.  291.  That  a  Judgment  may 
be  vacated  and  a  new  trial  awarded  for  the 
perjury  of  the  successful  party,  either  by  a 
proceeding  under  section  602  of  the  Code, 
or  by  an  independent  suit  in  equity,  is  fully 
settled  in  this  state.  Munro  v.  Calahan,  55 
Neb.  75,  75  N.  W.  161,  70  Am.  St  Rep.  366; 
Barr  v.  Post  59  Neb.  361,  363,  80  N.  W.  1041, 
SO  Am.  St  Rep.  680. 

The  point  that  there  Is  another  action 
pending  in  which  the  title  to  the  property 
in  controversy  can  be  settled  Is  not  well  ta- 


Digitized  by 


Google 


716 


122  NORTHWESTERN  REPORTER. 


(Wis. 


ken.  The  pleader  donbtlees  taas  reference 
to  the  partition  suit  Instituted  by  defendant 
Wirtb.  In  that  suit  defendants  here  are 
both  claiming  as  devisees  of  Valentine 
Wirth,  and  resting  their  claim  upon  the  de- 
cree entered  in  favor  of  their  devisor  on 
May  11,  1899.  That  Judgment,  being  regular 
upon  Its  face,  could  not  be  assailed  collater- 
ally in  the  partition  suit  If  plaintiff  can 
prove  the  allegations  In  her  petition,  the 
decree  entered  against  her  on  May  11,  1899, 
in  the  suit  of  her  husband,  Valentine  Wlrth, 
against  her,  should  be  opened  up,  and  she 
should  be  permitted  to  answer  and  make 
her  defense  thereto. 

The  judgment  of  the  district  court  Is 
therefore  reversed,  and  the  case  remanded 
for  further  proceedings  in  harmony  here- 
with. 

Reversed  and  remanded. 


DOHBRTY  V.  WINO. 
(Supreme  Court  of  Wisconsin.     Oct  6,  1909.) 

Fbacd  (5  43*)  — Action  — Plkading—Soffi- 

ciENCT  OF  Complaint. 

la  an  action  for  fraud  in  obtaining  an  ab- 
solute conveyance  of  a  note  and  mortgage  in- 
tended by  plaintiS  to  be  deposited  as  collateral 
for  loans,  a  complaint  alleged  tliat  plaintiff  ap- 
plied to  the  bank  of  which  defendant  was  cash- 
ier for  loans,  and  that  it  was  agreed  that  plain- 
tiff should  transfer  the  note  and  mortgage  to 
the  bank  as  collateral  to  secure  them,  that  de- 
fendant wrongfully  obtained  from  plaintiff  an 
assignment  absolately  transferring  the  note  and 
mortgage  to  defendant,  and  refused  to  sur- 
render them  to  plaintiff,  and,  in  effect,  admitted 
that  the  loans  had  not  been  repaid.  Held,  that 
it  did  not  state  a  cause  of  action,  the  full  effect 
of  the  allegations  being  that  the  transfer  of  the 
note  and  mortgage  under  the  assignment  oper- 
ated to  transfer  them  as  collateral  to  secure  the 
payment  of  loans,  which  were  still  unpaid. 

[EA.  Note.— For  other  cases,  see  Fraud,  Cent. 
Dig.  §  37;    Dec.  Dig.  i  43.*] 

Appeal  from  Circuit  Court,  La  Orosse 
County ;  Martin  I*  Lueck,  Judge. 

Action  by  James  Doherty  against  E.  M. 
Wing.  A  demurrer  to  the  complaint  was 
overruled,  and  defendant  appeals.  Reversed 
and  remanded,  with  directions. 

The  complaint  In  this  action  alleges  that 
the  plaintift  was  thb  owner  and  holder  of  a 
note  of  the  face  value  of  $G,400,  upon  which 
there  was  due  and  unpaid  $4,960,  and  that 
the  note  was  secured  by  a  mortgage  of  equal 
value.  August  20,  1906,  plaintiff  went  to 
the  Batavlan  National  Bank,  In  the  city  of 
La  Crosse,  of  which  the  defendant  is  cashier, 
and  secured  a  loan  from  the  bank  of  $1,000. 
Re  gave  the  bank  as  security  for  the  pay- 
ment of  the  loan  an  assignment  of  the  note 
and  mortgage.  Subsequently  be  obtained  $2,- 
000  more  from  the  bank  upon  the  same  se- 
curity. Plaintiff  alleges  that  the  defendant 
Wing,  as  cashier  of  the  bank,  stated  that  the 
assignment  of  the  note  and  mortgage  was 
solely  and  only  for  the  purpose  of  securing 


these  loans,  that  it  was  an  assignment  as 
collateral  security  and  was  not  an  absolute 
sale  thereof,  but  that  he  signed  an  abso- 
lute conveyance  of  the  note  and  mortgage 
In  favor-of  fbe  defendant  because  he  was  de- 
ceived through  his  false  and  fraudulent  rep- 
resentations. After  learning  of  said  false 
and  fraudulent  representations  of  the  defend- 
ant, plaintiff  demanded  the  return  of  the 
note  and  mortgage,  but  the  defendant  refuses 
to  return  them,  and  is  alleged  to  have  con- 
verted them  to  his  own  use.  The  complaint 
alleges  that  the  plaintiff  through  such  fraud- 
ulent representations  respecting  the  assign- 
ment of  the  note  and  mortgage  has  been  de- 
frauded by  the  defendant  of  the  note  and 
mortgage,  and  he  demands  Judgment  for  the 
difference  between  the  value  of  the  note  and 
the  mortgage  and  the  sums  received  by  him 
from  the  bank.  This  is  an  appeal  from  the 
order  of  the  court  overruling  a  general  de- 
murrer to  the  complaint 

Higbee  &  Higbee,  for  appellant.  F.  E. 
Wlthrow  (G.  Li  Hood,  of  counsel),  for  re- 
spondent 

SIEBECKER,  J.  (after  staUng  the  facts 
as  above).  The  trial  court  held  that  the 
facts  alleged  constituted  a  cause  of  action 
«gainst  the  defendant  for  a  fraud  perpetrat- 
ed  upon  the  plaintiff.  In  determining  the  ef- 
fect of  the  complaint,  the  alleged  facts  must 
be  separated  from  the  alleged  conclusions  in- 
ferable from  such  facts.  The  allegations  of 
fact  are  that  the  plaintiff  applied  to  the 
bank  for  two  loans  of  $1,000  and  $2,000,  re- 
spectively, and  offered  to  secure  repayment 
thereof  by  transferring  a  note  and  mortgage 
as  collateral ;  that  the  defendant,  with  whom 
he  negotiated  these  loans,  was  the  cashier 
of  the  bank;  that  It  was  agreed  that  the 
plaintiff  was  to  transfer  the  note  and  mort- 
gage to  the  bank  as  collateral  to  secure  these 
loans;  that  the  defendant  wrongfully  obtain- 
ed from  the  plaintiff  a  written  assignment 
which,  in  form,  absolutely  transfers  the  note 
and  mortgage  to  the  defendant ;  and  that  the 
defendant  refuses  upon  demand  to  surrender 
them  to  the  plaintiff.  In  effect,  the  plaintiff 
also  admits  that  he  has  not  repaid  the  loans. 
The  plaintiff  asserts  that  under  these  condi- 
tions he  is  damaged  because  the  defendant 
holds  the  note  and  mortgage  under  tills  writ- 
ten assignment 

It  is  evident  that,  U  the  defendant  holds 
the  note  and  mortgage  as  collateral  for  the 
repayment  of  the  amount  of  the  loans,  he  is 
entitled  under  this  assignment  to  retain  them 
until  the  loans  are  fully  repaid.  Plaintiff 
confesses  that  the  loans  remain  unpaid.  The 
full  effect  of  the  allegations  of  the  complaint 
is  that  the  transfer  of  the  note  and  mortgage 
to  the  defendant  by  the  plaintiff  under  the 
written  assignment  operates  to  transfer  them 
as  collateral  to  secure  the  payment  of  the 
loans  to  the  bank.     The  fact  that  the  as- 


•For  otbsr  cases  lee  same  loplo  and  lecUon  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  IndazM 

Digitized  by  LjOOQ  IC 


W1&). 


BRBTZ  ▼.  B.  CONKOR  CO. 


717 


signment  waa  taken  In  the  name  of  the  de- 
fendant, who  la  the  bank's  cashier,  in  no  way 
destroys  It  as  security  for  the  benefit  of  the 
bank.  The  result  is  that  the  note  and  mort- 
gage are  held  by  the  defendant  for  the  bank 
as  collateral  to  secure  the  payment  of  the 
loans.  Under  these  circumstances,  no  fraud 
has  been  committed  against  the  plaintiff,  and 
the  defendant  is  entitled  to  retain  the  secur- 
ity until  the  loans  hare  been  paid.  The 
complaint  does  not  state  a  cause  of  action. 

The  order  overruling  the  demurrer  is  re- 
versed, and  the  cause  remanded,  with  direc- 
tions to  enter  an  order  sustaining  the  de- 
murrer, and  for  further  preceedings  accord- 
ing to  law. 

WINSLOW,  O.  J.,  took  no  part 


EABNES  T.  KARNES. 
(Supreme  Court  of  WiBconsin.     Oct  6,  1909.) 

1.  Appbal  and  Ebbob  ({  931*)  —  Pbesuhf- 
TioNS  IN  Favob  or  TBiio.  Coubt's  Dkoi- 

BION. 

Where  the  trial  court  made  no  specific  find- 
ings of  fact,  but  found  generally  that  the  al- 
legations of  the  complaint  were  true,  the  Su- 
preme Court  must  assume  that  it  found  all  con- 
ttoverted  questions  of  fact  in  plaintifiTs  favor. 
[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  8764 ;  Dec.  Dig.  {  931.*] 

2.  DiTOBCE  (1 183*)— Actions  — SuFnoiENOT 
or  Evidence. 

A  finding  in  divorce  of  willful  desertion 
for  the  statutory  period  held  not  so  clearly 
against  the  pieponderance  of  evidence  as  to  war- 
rant setting  it  aside. 

[Ed.  Note.— For  other  cases,  see  Divorce,  Cent 
Dig.  if  446-448;   Dec.  Dig.ni  133.*] 

Appeal  from  Circuit  Court,  Dunn  County; 
EI  W.  Helms,  Judge; 

Action  by  William  D.  Karnes  against 
Elizabeth  Karnes.  Judgment  for  plaintiff, 
and  defendant  appeals.    Affirmed. 

Appeal  from  a  Judgment  of  the  clrcolt 
court  granting  a  divorce  upon  the  ground 
of  willful  desertion  for  the  period  of  one 
year  next  preceding  the  commencement  of 
the  action. 

J.  W.  Macauley,  for  appellant.  3.  it. 
Mathews,  for  respondent 

BARNES,  J.  The  defendant  seeks  a  re- 
versal on  two  grounds:  (1)  Plaintiff  failed 
to  establiab  the  fact  that  he  was  a  resident 
of  Wisconsin  for  the  period  of  one  year  pri- 
or to  the  commencement  of  the  action;  and 
(2)  the  evidence  failed  to  establish  willful 
desertion. 

The  first  ground  of  error  may  be  dismiss- 
ed by  asserting  that  the  evidence  was  ample 
to  establish  the  fact  that  plaintiff  was  a  res- 
ident of  the  state  the  requisite  length  of 
time  before  bringing  his  action. 

The  second  ground  of  error  Is  more  sub- 
stantial.    There  was  direct  conflict  In  the 


testimony  offered  by  the  respective  parties 
on  most  of  the  material  matters  testified  to. 
The  court  made  no  specific  findiugs  of  fact, 
but  found  generally  that  the  allegations  of 
the  complaint  were  proven  and  true.  We 
must  assume  that  it  found  all  controverted 
questions  of  fact  in  favor  of  the  plaintiff. 
It  was  not  denied  that  defendant  deserted 
the  plaintiff  about  two  weeks  before  be  left 
New  York  and  came  to  Wisconsin.  It  Is 
likewise  true  that  defendant  returned  to 
plaintiff's  home  about  eight  days  after  she 
left,  but  the  evidence  would  amply  Justify 
a  finding  by  the  court  to  the  effect  that  she 
did  not  return  for  the  purpose  of  living  with 
her  husband,  but  for  the  purpose  of  secur- 
ing her  clothing  and  personal  effects.  It 
is  also  true  that  the  plaintiff  never  advised 
the  defendant  of  his  whereabouts,  or  sent 
her  any  money  or  provided  for  her  support 
after  he  left  the  state  of  New  York,  except 
as  she  realized  a  small  snm  of  money  from 
some  property  which  be  had  at  the  time  of 
his  departure.  But  the  defendant  did  de- 
sert the  plaintiff  before  he  left  New  YoiiE, 
and  without  Just  cause,  as  the  court  found, 
and  as  it  had  a  right  to  find  on  the  testl- 
mony.  The  defendant  does  not  claim  that 
she  was  ever  either  ready  or  willing  to  re- 
sume her  marital  relations  with  plaintiff,  ex- 
cept as  she  testified  that  she  returned  to  his 
home.  As  already  said,  the  court  was  war- 
ranted in  finding  that  she  did  not  return  for 
the  purpose  of  living  with  plaintiff.  Upon 
the  state  of  the  record,  we  cannot  say  that 
the  finding  by  the  court  of  willful  desertion 
on  the  part  of  the  defendant  for  the  statuto- 
ry  period  was  so  clearly  against  the  pre- 
ponderance of  the  evidence  as  to  warrant 
this  court  In  reversing  the  Judgment. 
Judgment  affirmed. 

WINSLOW,  O.  J.,  took  no  part 


BRETZ  V.  R.  CONNOR  CO. 
(Supreme  Court  of  Wisconsin.     Oct  6,  1909.) 

1.  Loos  AND  LoooiNO  (|  8*)— Salx  or  Stand- 
ing Timber— CoNSTBDcnoN  or  Deed. 

A  deed  of  all  the  merchantable  timber  of 
certain  kinds  on  land,  "also  with  the  right  to 
the  party  of  the  second  part  to  enter  upon  said 
lands  and  remove  said  timber,  and  to  do  such 
work  as  is  necessary  for  removal  of  said  tim- 
ber on  or  before"  a  certain  time,  passed  only 
such  timber  as  was  removed  during  the  time 
specified   therein. 

[Ed.   Note.— For  other  cases,   see   Logs   and 
Logging,  Cent.  Dig.  |  9;    Dec.  Dig.  {  3.*] 

2.  Pbincipal  and  Aqent  (|  103*)- Authob- 
mr  or  Agent  —  Liabilitt  fob  Agent's 
Acts. 

Where  a  person  was  Intrusted,  by  grantois 
of  land  subject  to  their  right  to  remove  timber, 
with  the  deed  to  obtain  the  signatures  of  the 
grantors  and  make  delivery  for  them,  he  was 
clothed  with  apparent  authority  to  close  the 
deal ;  and  where  the  grantee  objected  to  the 
date  In  the  deed  stated  as  the  date  of  ezplra- 


'For  other  casM  tcs  Mune  topio  and  isotlon  NUMBER  In  Dae.  *  Am.  Diss-  UOT  to  6a,U.  *  Raportw  Indao 


Digitized  by  LjOOQIC 


718 


122  NORTHWBSTBBN  BSPOBTEB. 


(Wla. 


tion  of  the  gractora'  right  to  lemoTe  timber, 
and  the  agent  changed  the  date,  the  grantee 
conld  rely  upon  his  apparent  authority  to  change 
the  date,  and  the  grantors  were  boand  thereby. 

[Ed.  Note.— For  other  cases,  see  Principal  and 
Agent,  Cent.  Dig.  «{  278-293,  353-359;  Dec. 
Dig.  i  103.»] 

Appeal  from  Circuit  Court,  Wood  County; 
Cbarles  M.  Webb,  Judge. 

Action  by  E.  J.  Bretz  against  the  B.  Con- 
nor Company.  There  was  a  directed  verdict 
for  plaintiff,  and  defendant  appeais.  Af- 
firmed. 

This  action  was  brought  to  recover  the 
value  of  pine  timber  cut  and  removed  by 
the  defendant  from  the  N.  B.  %  of  section 
10,  township  27,  range  2  B.,  In  Marathan 
county.  The  defendant  claimed  title  under 
a  deed,  dated  May  17,  1901,  which  contain- 
ed the  following  provision:  "All  the  mer- 
chantable log  and  basswood  bolt  timber 
standing  or  situated  on  west  one-half  of  sec- 
tion ten  (10),  southeast  quarter  and  west 
half  of  northeast  quarter  of  section  ten  (10), 
and  the  west  half  of  southwest  quarter  of 
section  number  eleven  (11),  all  In  township 
number  twenty-seven  (27),  range  number  two 
(2)  east— also  with  the  right  to  the  party  of 
the  second  part  to  enter  upon  said  lands  and 
remove  said  timber,  and  to  do  such  work  as 
Is  necessary  for  removal  of  said  timber,  at 
any  time  on  or  before  two  years  from  April 
15,  1901."*  The  deed  of  the  timber  to  de- 
fendant was  given  by  Eklwin  L.  Beese,  Adam 
Paulus,  and  W.  D.  Connor,  and  recorded 
May  20,  1901.  Most  of  the  timber  was  cut 
during  the  winter  of  1902  and  1903,  but  some 
remained  after  April  15,  1903.  On  the  19th 
day  of  September,  1902,  said  Paulus,  Beese, 
and  Connor  deeded  a  quarter  section  of  this 
land  to  the  plaintiff,  which  deed  contained 
the  following  provision:  "Bzcepting  and  re- 
serving the  merchantable  saw  log  timber 
and  bolts  heretofore  sold  to  B.  Connor  Co., 
with  the  right  to  enter  upon  said  land  to 
remove  said  timber  any  time  prior  to  April 
15,  1903  (1903)." 

It  was  claimed  on  the  trial  that  the  deed 
from  Paulus,  Beese,  and  Connor  to  the  plain- 
tiff had  been  changed  after  execution,  so  aa 
to  make  the  right  to  enter  upon  the  lands  to 
remove  the  timber  read  "any  time  prior  to 
April  15,  1903,"  whereas  as  originally  execut- 
ed It  read  "April  15,  1004,"  and  that  such 
deed  on  its  face  bore  evidence  of  the  change. 
The  case  was  submitted  to  the  Jury  and  the 
following  verdict  returned: 

"(1)  Was  the  plaintiff's  deed,  after  l)elng 
signed  by  Adam  Paulus  and  Bdward  L. 
Beese,  changed  by  W.  D.  Connor  by  chang- 
ing the  year  '1901'  to  the  year  '1903'  in  the 
clause  relating  to  the  time  for  the  removal 
of  timber?    Answer:  No. 

"(2)  Did  W.  D.  Connor  consent  to  the 
change  in  plaintiff's  deed  as  made  by  Mr. 
Beynolds  of  '1904'  to  '1903'?     Answer:  No. 


"(S)  Did  the  defendant,  before  entering  up- 
on the  southeast  quarter  of  section  10  to  cnt 
the  timber,  acquire  a  title  to  the  timber  In 
question  in  good  faith,  believing  the  same 
to  be  valid?   Answer:  Yea. 

"(4)  During  his  negotiations  with  R^nolds 
did  Paulus  Inform  Beynolds,  in  substance,  of 
the  extension  of  time  to  the  defendant  for 
the  removal  of  the  timber,  and  ttiat  Bncb 
extension,  in  case  of  a  sale  of  the  lands, 
must  be  protected  to  the  satisfaction  of  W. 
D.  Connor?    Answer:  Yes. 

"(5)  Did  the  defendant,  on  and  after  No- 
vember 1,  1903,  In  good  faith  enter  npon 
said  land  and  cut  the  timber  therefrom,  1)e- 
lievlng  It  then  bad  a  valid  title  theretoT 
Answer:  Yes. 

"(6)  What  was  the  true  stnmpage  valne  of 
the  timber  cnt  by  the  defendant  on  the  sonth- 
east  quarter  of  section  10  during  the  fall 
and  winter  of  1903-04?    Answer:  $365.04:. 

"(7)  What  was  the  highest  market  value 
of  the  timber  cut  on  plaintiff's  land,  after 
it  was  manufactured  into  lumber  at  Auburn- 
dale,  Wis.,  and  while  in  defendant's  posses- 
sion?   Answer:  $1,546.25." 

Both  parties  moved  for  judgment  on  the 
verdict  The  court  denied  defendant's  mo- 
tion, and  ordered  Judgment  for  the  plaintiff 
on  the  verdict  for  $365.64.  Judgment  was 
entered  accordingly  in  favor  of  the  plaintiff 
against  the  defendant,  from  which  this  ap- 
peal was  taken. 

Gogglns  &  Brazeau,  for  appellant.  !<.  M. 
Sturdevant  (C  B.  Bdwards,  of  counsel),  for 

respondent 

KEBWIN.  J.  (after  stating  the  facts  as 
above).  It  Is  first  contended  by  appellant 
that  the  deed  conveyed  an  absolute  title  In 
the  timber  to  defendant,  and  therefore  the 
subsequent  deed  to  plaintiff  conveyed  only 
the  remainder  of  the  estate.  This  contention 
Is  denied  by  respondent  and  he  Insists  that 
only  such  timber  as  was  removed  before 
April  15,  1003,  passed  to  defendant  by  the 
deed  to  It  Both  parties  rely  upon  the  same 
authorities  to  sustain  their  respective  posi- 
tions under  this  head.  The  question  Is  an 
important  one,  and  not  free  from  difficulty. 
If  we  should  regard  It  unsettled  In  this  state. 
There  Is  much  confilct  of  authority  In  other 
Jurisdictions,  and  much  force  in  the  posi- 
tion of  appellant  to  the  effect  that  the  deedT 
to  defendant  conveyed  an  absolute  title  to 
the  timber  described  In  the  deed,  and  not 
such  as  should  be  removed  within  the  two 
years  specified.  The  court,  however,  is  forc- 
ed to  the  conclusion  that  under  the  settled 
doctrine  In  this  court  by  a  conveyance  of 
timber  similar  to  the  one  In  the  deed  to  de- 
fendant only  such  timber  passes  by  the 
deed  as  is  removed  during  the  time  specified 
in  the  deed.  Golden  v.  Clock.  57  Wis.  118. 
15  N.  W.  12.  46  Am.  B^  32;  Hicks  v.  Smith 


•For  mliar  i 


I  M«  lam*  topic  and  MctiOB  NUMBER  In  Dee.  *  Am.  Dl(i.  IMT  to  dato,  *  Reporter  Indez«a 


Digitized  by  VjOOQ  l€ 


WHO       EYANGELISH  LUTHERISH  ST.  MARTIN'S  GEHEINDE  y.  PBEUS&         719 


et  aL,  77  Wis.  14e,  46  N.  W.  133;  WiUlama 
et  aL  y.  Jones,  131  Wis.  861,  111  H.  W.  SOS; 
Peslitlgo  L.  Co.  y.  Ellis  «t  al.,  122  Wis.  433, 
100  N.  W.  834;  Western  L.  &  O.  Co.  y.  Cop- 
per R.  L.  Co.  (Wis.)  120  N.  W.  277. 

In  September,  1902,  tbe  defendant's  grant- 
ors, Panlus,  Reese,  and  Connor,  conyeyed  to 
the  piaintlff  a  qnarter  section  of  tlie  land 
covered  by  tlie  deed  to  defendant  on  whicb 
some  of  the*  timber  mentioned  in  the  deed 
to  defendant  remained  nncut  This  deed 
contained  th^  clause  set  out  in  tbe  statement 
of  facts.  After  the  deed  to  plaintiff  had 
been  signed  by  Paulus  and  Reese,  it  was 
presented  to  Connor  for  signature,  and  he 
Insisted  that  tbe  danse  for  removal  read 
"April  15,  1904,"  instead  of  "April  15,  1903," 
and  when  signed  by  Connor  It  read  April  15, 
1904.  One  Reynolds  and  others  associated 
with  him  negotiated  the  sale  to  plaintiff. 
When  the  deed  was  presented  for  delivery, 
plaintiff  objected  to  tbe  clause  respecting 
removal  of  the  timber  to  April  15, 1904,  and 
Reynolds  thereupon  changed  it  so  as  to  read 
April  15,  1903.  The  Jury  found  that  Connor 
never  consented  to  this  change,  although  it 
appears  that  Reynolds  called  him  by  pbone 
and  Informed  him  of  the  request  of  plain- 
tiff, and  that  Connor  made  no  reply,  except 
said,  "Well,"  and  bung  up  the  receiver.  It 
further  appears  from  the  evidence  that  it 
was  understood  between  defendant  and  its 
grantors  that  defendant  should  have  further 
time  to  remove  the  timber  conveyed  than 
that  specified  in  its  deed.  It  does  not  ap- 
pear, however,  that  when  plaintiff  accepted 
his  deed  he  had  knowledge  of  this  agree- 
tuent,  but  uuUerstoud  be  was  getting  a  deed 
subject  only  to  the  provisions  of  the  deed 
to  defendant,  with  tbe  reservation  to  enter 
and  remove  the  timber  mentioned  before 
April  15,  1903. 

Now  the  question  arises  whether  plaintiff 
was  bound  by  the  time  limit  of  1904.  He 
accepted  the  deed  as  changed  by  Reynolds, 
making  the  removal  period  to  expire  April 
15,  1908,  and  paid  the  consideration  on  the 
faith  of  such  conveyance.  It  is  vigorously 
contended  by  counsel  for  appellant  that 
Reynolds  was  not  the  agent  of  Connor  in 
making  the  change  from  April  15,  1904,  to 
April  15,  1903,  and  that  tbe  grantors  were 
bound  thereby;  while,  on  the  other  hand, 
It  is  Insisted  by  respondent  that  Reynolds 
was  tbe  agent  of  the  grantors,  and  that 
plaintiff  had  the  right  to  rely  upon  th^ 
terms  of  the  deed  as  finally  delivered  by 
Reynolds,  and  that  the  transaction  was 
closed  and  tbe  consideration  paid  on  the 
faltb  of  such  deed.  It  is  without  dispute 
tbat  Reynolds  was  Intrusted  with  the  deed 
for  the  purpose  of  obtaining  the  signatures 
of  tbe  grantors  and  making  delivery  for 
them.  So  he  was  clothed  at  least  with  ap- 
parent authority  to  close  the  deal  on  the 
part  of  the  grantors.     This  being  so,  the 


plaintiff,  grantee,  had  a  right  to  rely  upon 
such  apparent  authority  and  pay  tbe  con- 
sideration on  tbe  terms  of  the  deed  thus  de- 
livered. 

No  attempt  was  made  on  tbe  part  of  ei- 
ther party  to  rescind  or  repudiate  the  trans- 
action as  closed.  We  think,  under  the  cir- 
cnmstaoces  of  the  case,  the  g^rantors  were 
bound  by  tbe  change  to  1903  as  made  by 
Reynolds.  It  is  established  that  the  timber 
in  question  was  cut  by  defendant  after  tbe 
time  for  removal  bad  expired,  namely,  after 
April  15,  1903. 

Many  other  questions  are  argued  by  coun- 
sel; but,  in  tbe  view  we  take  of  the  case, 
discussion  of  them  seems  unnecessary.  It 
follows,  from  what  has  been  said,  that  tbe 
Judgment  below  is  right,  and  must  be  af- 
firmed. 

The  Judgment  of  the  court  below  Is  af- 
firmed. 

WINSLOW,  C.  Jv  and  BARNES,  J.,  took 
no  part 


EVANGBIilSH  LUTHERISH  ST.  MARTIN'S 

GEMBINCB  V.  PREUSS. 
(Supreme  Conrt  of  Wisconsin.     Oct  S,  1909.) 

1.  SUBSCBIFTIONS     (i    4*)  — NaTUM  — ESSKR- 
TIALS. 

A  subscription  for  a  building  fund  on  con- 
dition that  the  subscriber  should  not  be  called  on 
for  team  work,  and  that  th>>  church  should  ac- 
cept the  subscription  in  full  of  the  subscrib- 
er's share  of  the  expense  of  building  the  church, 
was  a  mere  offer  nntil  accepted  by  the  church. 
[Ed.  Note. — For  other  cases,  see  Subscriptions, 
Cent.  Dig.  I  6;   Dec.  Dig.  i  4.*] 

2.  SUBSCBIFTIONS  (5  4»)— AcceptancbK 

Acceptance  of  a  subscription  to  a  building 

fund   may   be   made  by   expending   money   and 

erecting  a  building  in  accordance  with  tbe  offer. 

[Ed.  Note.— For  other  cases,  see  Subscriptions, 

Cent.  Dig.  |  5;  Dec.  Dig.  {  4.*] 

3.  SuBSCBiPTiows   (I   21*)— Acceptance— Ao- 

TlON— SnFFICIENCT   OF   EVIDENCE. 

In  an  action  on  a  subscription  to  a  church 
building  fund,  evidence  held  insufficient  to  show 
that  the  subscription  was  accepted  by  the  church 
on  the  terms  on  which  it  was  made. 

[Ed.  Note.— For  other  cases,  see  Subscriptions, 
Cent.  Dig.  i  28;   Dec.  Dig.  {  21.*] 

Appeal  from  Circuit  Court  Shawano  Coun- 
ty; John  Goodland,  Judge. 

Action  by  the  Evangeltsh  Lutherlsb  St 
Martin's  Gemeinde  of  the  Town  of  Belle 
Plalne,  against  August  Preuss.  Judgment  for 
plaintiff,  and  defendant  appeals.  Reversed 
and  remanded. 

Appeal  from  a  Judgment  of  the  circuit 
court  for  Shawano  county. 

Among  other  references  upon  the  part  of 
the  appellant  were  tbe  following:  First  M. 
E.  Church  v.  Sweny,  85  Iowa,  Gi7,  52  N.  W. 
546 ;  Golden  v.  Meier,  129  Wis.  14,  107  N.  W. 
27,  116  Am.  St  Rep.  935;  27  A.  &  E.  Ency. 
of  Law  (2d  Ed.)  285;   U.  S.  Grant  University 


•Tor  otbar  csms  sm  sama  topto  and  leetton  NUUBER  in  Dm.  *  Am.  Olxs.  U07  to  data,  t  Raportar  Indaxaa 

Digitized  by  VjOOQ  l€ 


720 


122  NORTHWESTERN  REPORTEB. 


(Wl* 


V.  Bentley,  117  Wis.  260,  04  N.  W.  42 ;  Nor- 
wegian Luther  Con.  v.  Larson,  121  Iowa,  151, 
96  N.  W.  706;  WlBwell  t.  Bresnaban,  H4  Me. 
397,  24  Atl.  885;  M.  E.  Church  r.  Sherman, 
36  Wis.  404 ;  La  Fayette  Co.  Monument  Corp. 
V.  Magoon,  73  Wis.  627,  24  N.  W.  17,  8  L. 
R.  A.  761;  Powers  t.  Hude,  14  OU.  881,  78 
Pac.  89. 

Among  references  upon  the  part  of  the  re- 
spondent were  the  following:  Vogt  v,  Shleue- 
beck,  122  Wis.  491,  100  N.  W.  820,  67  L.  R.  A. 
756,  106  Am.  St.  Rep.  989;  Milwaukee  Car. 
Ass'n  T.  King,  etc.,  Co..  112  Wis.  647.  88  N. 
W.  698;  Coman  v.  Wunaerllch,  122  Wis.  138, 
99  N.  W.  612;  Superior,  etc..  L.  Co.  v.  Blclt- 
ford,  93  Wis.  220.  67  N.  W.  45;  Gibbons  v. 
Grinscl,  79  Wis.  371,  48  N.  W.  255;  Hodges 
V.  Nalty,  104  Wis.  464.  80  N.  W.  728;  Id.,  113 
Wis.  567,  89  N.  W.  635;  Lathrop  t.  Knapp, 
87  Wis.  307. 

Wallrlcb,  Dlllett  ft  Larson,  for  appellant 
P.  J.  Winter,  for  respondent 

TIMLIN,  3.  This  action  was  brought  up- 
on a  subscription  agreement  signed  by  the  ap- 
pellant and  others  underwriting  the  follow- 
ing: "We.  the  undersigned  members  ef  the 
Evangellsh  Lutherlsh  St  Martin's  Gemelnde 
in  the  town  of  Belle  Plains.  Shawano  County. 
Wis.,  pledge  ourselves  to  pay  the  amount  sub- 
scribed back  of  our  names  in  such  rates  as 
are  stated  In  this  list  for  the  building  of  the 
new  church  in  the  year  1907."  The  appel- 
lant subscribed  $200,  $100  thereof  payable  In 
January,  1907.  At  the  close  of  the  testimony 
the  court  directed  a  verdict  in  favor  of  the 
respondent  and  against  the  appellant  for 
$200,  with  Interest  'i'hls  subscription  was 
made  in  November  or  December,  1906.  The 
bulldlng*of  the  church  commenced  in  June, 
1907.  Prior  to  that  time,  and  soon  after  the 
subscription  was  made,  building  material  was 
purchased  by  the  respondent 

It  is  shown  by  the  evidence  of  botta  re- 
spondent and  appellant  that  appellant  signed 
this  subscription  list  at  the  Instance  of  the 
Reverend  Karplnski,  the  pastor  of  the  church, 
and  one  Meisner,  and  that  there  was  a  conver- 
sation immediately  preceding  appellant's  sign- 
ing, substantially  to  the  effect  that  appellant 
would  sign  and  make  his  subscription  $200, 
provided  be  should  not  be  called  upon  for 
team  work  and  upon  condition  that  the  cor- 
poration should  accept  this  subscription  In 
full  of  his  share  of  the  expense  of  building 
the  church.  The  two  persons  soliciting  the 
subscription  agreed  that  the  subscription  with 
this  condition  attached  should  be  brought  be- 
fore the  congregation  for  acceptance.  There 
is  considerable  confusion  in  the  testimony. 
The  record  of  the  meeting  of  the  respondent's 
corporation  contained  the  following:  "Meet- 
ing of  the  congregation  on  May  5,  1907,  Au- 
gust Preuss  declared  that  he  would  be  a  mem- 
ber of  this  congregation  no  longer.  It  was 
decided  upon  that  the  pastor  and  two  dea- 
cons should  go  to  August  Preuss  and  talk 


over  this  declaration  or  this  matter  with 
bim."  Meisner  at  a  meeting  of  the  congrega- 
tion, the  date  of  which  Is  not  given.  Inform- 
ed the  congregation  of  the  condition  upon 
which  this  subscription  was  obtained  and  the 
necessity  for  accepting  the  sabscrlptlon.  The 
record  of  a  meeting  of  the  congregation  on 
May  19,  1907,  contained  the  foUowlng:  "Re- 
solved that  August  Preuss  cannot  be  released 
from  the  membership  of  the  congregation  be- 
fore he  pays  his  debts  which  be  tias  with  the 
congregation." 

A  witness  on  the  part  of  the  respondent 
testified  that  the  subscription  of  Preuss  was 
accepted  by  the  congregation,  but  he  did  not 
know  when  this  meeting  was  held,  but  it 
must  have  been  in  May,  1907.  The  pastor 
testified  that  the  subscription  was  accepted 
by  the  congregation  in  the  fore  part  of  the 
summer  of  1907. 

The  appellant  testified  in  his  own  behalf, 
not  very  clearly,  it  is  true,  but  apparently 
relative  to  the  meeting  of  May  5tb.  He  gave 
the  following  testimony:  "There  was  no 
meeting  before  May  6th.  •  •  •  I  went  out 
mad,  and  Koehler  came  after  me,  and  I  told 

him  after  this  I  would  not  pay  them  a 

cent  Thereupon  they  called  that  meet- 
ing of  May  5th  for  that  purpose  to  accept  It 
David  Meisner  made  a  motion  that  they  should 
accept  It  They  simply  refused  to  vote  on  it 
no  action  made  whatever.  Thereupon  I  made 
a  motion  to  ask  them  to  release  me  from  the 
church ;  that  they  would  not  vote  on.  Then 
I  asked  them  to  withdraw  that  subscription, 
give  me  a  chance  to  sign  like  them  so  I  could 
stand  to  pay  afterward.  They  simply  Toted 
that  down.  They  did  not  want  it  Thereup- 
on I  left  and  ceased  to  be  a  member.  •  *  • 
I  told  them  X  would  not  have  anything  more 
to  do  with  that  church  and  would  not  pay  a 
cent  any  more."  After  this,  he  was  waited 
upon  by  the  pastor  and  another  member  of 
the  congregation.  -  They  said  to  him  the  con- 
gregation had  done  wrong,  in  that  they  would 
not  accept  it  and  that  they  were  going  to 
accept  It  after  that  provided  he  came  back 
to  the  church,  and  he  told  them  he  did  not 
want  to  come  back. 

In  the  face  of  this  positive  testimony  on 
the  part  of  the  appellant  and  the  uncertain 
testimony  on  the  part  of  the  respondent  as  to 
the  time  of  acceptance  of  the  subscription,  it 
is  difficult  to  see  on  what  grounds  the  circuit 
court  directed  a  verdict  for  the  respondent 
The  subscription  was  a  mere  offer  until  ac- 
cepted by  the  respondent  M.  E.  Church  v. 
Sherman,  36  Wis.  404 ;  U.  S.  Grant  Universi- 
ty V.  Bentley,  117  Wis.  260,  94  N.  W.  42;  27 
A.  ft  E.  Ency.  of  Law  (2d  Ed.)  280,  285. 

In  the  case  at  bar  this  legal  quality  of  a 
subscription  was  accentuated  by  the  designa- 
tion to  the  person  soliciting  the  subscription 
by  the  appellant  of  the  body  which  should  ac- 
cept his  subscription  and  the  concessions  that 
body  should  make  by  such  acceptance.  It  is 
true  that  acceptance  of  a  subscription  may 
be  made  by  expending  money  and  erecting  a 


Digitized  by 


Google 


Wis.) 


BAEALAKS  y,  CONTINENTAL  CASUALTY  CO. 


721 


balldlng  In  accordance  with  th^  offer.  8n- 
perlor,  etc.,  Co.  t.  Blckford,  93  Wis.  220,  67 
N.  W.  45;  Eydeshlmer  v.  Van  Antwerp,  18 
Wis.  546.  But  In  the  Instant  case  another 
kind  of  acceptance  was  expressly  stipulated 
for,  and,  besides,  there  Is  no  proof  that  the 
congregation  accepted  this  prior  to  its  at- 
tempted  withdrawal  by  erecting  a  balldlng  or 
disbursing  money  relying  on  such  subscrip- 
tion. We  forbear  to  comment  farther  on  the 
eTidence.  Another  trial  may  disdose  a  dif- 
ferent state  of  facts  or  result  in  clearer  and 
more  definite  statements  from  the  same  wit- 
nesses, or  show  that  the  attempted  revocation 
by  the  appellant  was  after  the  subscription 
was  accepted  by  the  congregation  of  the  re- 
spondent, upon  the  conditions  stipulated.  We 
regard  the  complaint  as  sufficient,  but  are 
constrained  to  reverse  the  Judgment  appealed 
from  because  the  court  below  erred  in  direct- 
ing a  verdict  for  the  respondent  As  to  the 
appellant  so  contracting.  If  a  contract  was 
really  closed,  notwithstanding  Informalities  In 
the  articles  of  incorporation  the  respondent 
was  at  least  a  corporation  de  facto. 

The  Judgment  of  the  circuit  court  is  re- 
versed and  the  cause  remanded  for  further 
proceedings  according  to  law. 

WINSLOW,  C.  J.,  took  no  part 


BAKALARS   v.   CONTINENTAL   CASUAL- 
TY OO.t 

(Supreme  Court  of  Wisconsin.     Oct.  6,  1900.) 

1.  iNStTBANCE  (I  461*)— Cascaltt  Insubance 
— Exposure  to  Unnecessary  Danoeb. 

In  order  to  defeat  liability  on  a  casualty 
policy  pTObibiting  voluntary  exposure  of  insur- 
ed to  unnecessary  danger,  and  obvious  risic  of 
injury,  it  is  necessary  that  tliere  be  conscious 
knowledge  of  tiie  danger  on  the  part  of  insared 
and  intentional  or  willfnl  exposure  to  it. 

[Ed.   Note.— For  other  cases,   see   Insurance, 
Cent  Dig.  fi  1181, 1182 ;  Dec.  Dig.  i  461.*] 

2.  Insubance  (§  646*)— Casualtt  Insurance 
— Exposure  to  Unnecgssabt  Danoeb— Ac- 
tions—Bubden  or  Pboof.  • 

In  an  action  on  a  casualty  policy  contain- 
ing a  clause  against  a  voluntary  exposure  to 
nnnecessary  danger,  defendant  has  the  burden 
of  proving  violation  of  such  clause  by  evidence 
from  which  such  conclusion  might  result  by 
rea.sonable  inference,  and  not  alone  by  conjec- 
ture. 

[Ed.   Note. — For  other   cases,   see  Insurance, 
Cent  Dig.  {  1664 ;   Dec.  Dig.  8  646.*] 

&  Insubance  (i  665*)— Casualty  Insubance 
— ExposuBE  TO  Unnecessary  Danoeb- Suf- 
ficiency OF  Evidence. 

In  an  action  on  a  casaalty  policy  prohibit- 
ing volnntary  exposure  of  insured  to  unnecessary 
danger  or  oovious  risk  of  injury,  evidence  that 
insared,  a  locomotive  fireman,  whose  duties  took 
him  8l>out  the  tracks  in  railroad  yards,  took  an 
entirely  usual  route  and  the  shortest  one  from 
bis  home  to  his  place  of  employment  at  the 
roundhouse  through  the  railroad  yard,  and  in 
the  vicinity  of  tracks,  and  that  his  injuries  in- 
dicated that  he  bad  been  stmck  and  run  over 


bv  a  passing  engine,  was  insufficient  to  show  a 
violation  of  such  clause. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  {  1721 ;   Dec.  Dig.  S  665.»] 

4.  Insubance  (§  665*)— Casualty  Insurance 
—  Intoxication  of  Insubbd  —  Sufficiency 
OF  Evidence. 

In  an  action  on  a  casualty  policy,  evidence 
heJd  insufficient  to  show  that  at  the  time  of  his 
injury  insared  was  under  the  influence  of  in- 
toxicating liquor. 

[Ei.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  !  1721 ;   Dec.  Dig.  |  66o.»] 

5.  Insubance  (|  146*)  —  Policy  —  Construc- 
tion. 

In  case  of  ambiguity,  the  words  of  an  in- 
surance policy  are  to  be  read  most  favorably  to 
the  insured. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  $  296 ;   Dec.  Dig.  I  146.*] 

6.  Insubance  (|  460*)— Casualty  Insurance 
—''Under  the  Influence  of  Any  Intoxi- 
cant." 

The  words  "under  the  influence  of  any  in- 
toxicant" in  a  casualty  policy,  providing  that 
only  a  certain  amount  should  be  paid  in  case 
an  "accidental  injury  is  sustained  while  the 
assured  is  insane,  delirious  or  under  the  influ- 
ence of  any  intoxicant  or  narcotic,"  meant  such 
degree  of  Influence  as  would  materially  impair 
insured's  ability  to  care  for  himself  and  guard 
against  casualties ;  such  degree  of  influence  being 
equivalent  to  intoxication  in  the  ordinary  mean- 
ing of  the  word. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  {  1179 ;   Dec  Dig.  {  460.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  8,  pp.  7159-7160.] 

7.  Tbial  (I  191*)  —  In8Tbuctions  — Assump- 
tion OF  Fact  in  Dispute. 

An  instruction  assuming  the  existence  of  a 
fact  in  dispute  is  properly  refused. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  {  420;   Dec.  Dig.  §  191.*] 

Appeal  from  Circuit  Court  La  Crosse  Coun- 
ty;  J.  J.  Fruit  Judge. 

'Action  by  Rose  Bakalars  against  the  Con- 
tinental Casualty  Company.  Judgment  for 
plaintiff,  and  defendant  appeals.    Afllrmed. 

Action  on  policy  for  accidental  death  of 
John  Bakalars  on  December  7,  1905,  whose 
body  was  found  shortly  after  1  o'clock  in  the 
morning  beside  a  railroad  track.  Death  by 
one  of  the  causes  insured  against  was  not 
contested,  but  the  defendant  set  up,  first 
that  it  occurred  from  "the  voluntary  exposure 
of  said  Bakalars  to  unnecessary  danger  and 
obvious  risk  and  injury;  and,  second,  while 
said  Bakalars  was  "under  the  influence  of  in- 
toxicating liquors,"  in  each  of  which  cases  the 
policy  provided  that  only  one-tenth  of  the 
face  thereof  should  be  paid.  This  amount 
was  tendered.  The  courts  submitted  but  one 
question  to  the  Jury,  namely,  whether  Baka- 
lars at  the  time  he  sustained  the  actual  In- 
Jury  was  under  the  influence  of  any  intoxi- 
cant which  was  answered  in  the  negative. 
Whereupon  judgment  for  the  face  of  the  poli- 
cy was  rendered,  from  which  the  defendant 
appeals. 


•For  other  cases  see  same  topic  and  lectton  NUMBER  in  Dec.  ft  Am.  Digs.  1907  to  data,  ft  Reporter  Indexes 


122N.W.— 46 


t  Rehearing  denied  December  7,  190!). 


Digitized  by  VjOOQ  l€ 


722 


122  NORTHWESTBBN  BBBOBTEB. 


(Wta. 


Jesse  E.  Higbee  (Manton  Maverick,  of  coud- 
sel),  for  appellant  W.  F.  ft  A.  C.  Wolf,  for 
respondent 

DODGE,  J.  (after  atating  tbe  facts  as 
above).  1.  The  first  error  assigned  Is  upon 
refusal  to  submit  to  tbe  Jury  tbe  question 
whether  the  injury  resulted  "from  voluntary 
exposure  to  unnecessary  danger  or  obvious 
risk  of  injury."  According  to  the  great 
weight  of  authority,  three  elements  are  es- 
sential to  this  excuse  from  liability:  (a)  Con- 
scious knowledge  of  the  danger;  (b)  Inten- 
tional or  willful  exposure  to  It;  and  (c)  that 
the  danger  shall  be  unnecessary.  As  to  the 
first  two  elements,  this  court  has  declared  It- 
self in  accord  with  such  authority  In  Schnei- 
der V.  Providence  Life  Ins.  Co.,  24  Wis.  28, 
1  Am.  Rep.  157,  Shevlln  v.  The  American 
Mutual  Accident  Ass'n,  94  Wis.  180,  68  N.  W. 
SCO,  36  L.  R.  A.  62,  and  in  Sargent  v.  Central 
Accident  Ins.  Co..  112  Wis.  29.  87  N.  W.  796, 
88  Am.  St.  Rep.  946.  The  only  evidence  upon 
which  the  court  or  Jury  could  act  was  that 
the  deceased  was  a  locomotive  fireman  insur- 
ed as  such,  whose  duties,  of  course,  took  him 
about  the  tracks  In  railroad  yards,  and  that 
on  the  occasion  In  question  he  took  an  entire- 
ly usual  route,  and  the  shortest  one,  from 
his  home  to  bis  place  of  employment  at  the 
roundhouse  through  the  railroad  yard,  and  In 
the  vicinity  of  tracks,  and  that  his  injuries 
indicated  that  he  had  been  struck  and  run 
over  by  a  passing  engine.  In  the  absence  of 
any  other  evidence,  we  agree  with  the  trial 
court  that  a  conclusion  either  that  he  knew 
of  the  danger  from  which  he  suffered,  or  that 
he  willfully  and  intentionally  exposed  him- 
self to  it,  could  have  been  based  only  on  con- 
jecture or  guess.  The  burden  of  proof  was 
upon  the  defendant  to  oflfer  evidence  from 
which  such  conclusion  might  result  by  rea- 
sonable inference,  and  not  alone  by  conjec- 
ture. PoUIs  V.  Insurance  Co.,  94  Iowa,  435, 
62  N.  W.  807,  28  L.  R.  A.  78,  58  Am.  St  Rep. 
408;  Musbach  v  Wisconsin  Chair  Co.,  108 
Wis.  57,  84  N.  W.  30 ;  Hyer  v.  City  of  Janes- 
vllle,  101  Wis.  371,  77  N.  W.  729 ;  Schell  v. 
Railway  Co.,  134  Wis.  142,  113  N.  W.  657. 
The  trial  court  did  not  err  In  holding  that  no 
such  evidence  had  been  introduced,  and  there- 
fore an  affirmative  answer  to  such  question 
could  not  have  been  sustained. 

2.  A  second  error  is  assigned  upon  the  re- 
fusal of  the  court  to  direct  verdict  that  the 
deceased  at  tbe  time  of  his  injury  was  under 
the  influence  of  intoxicating  liquor,  which 
fact  it  is  claimed  was  established  without  dis- 
pute. We  cannot  at  all  agree  with  this  view 
of  appellant's  counsel.  The  evidence  of  any 
considerable  use  of  intoxicating  liquor,  or  in- 
fluence thereof  upon  deceased  even  at  any 
time  during  the  evening  before  his  death,  is 
very  conflicting;  but,  even  if  a  condition  of 
some  degree  of  intoxication  had  existed,  there 
was  evidence  tending  to  show  that  the  last 
use  of  liquor  was  prior  to  10  o'clock ;  that  an 
hour  or  more  of  slumber  succeeded  it,  and 


that  as  early  as  an  hour  before  tbe  casualty, 
on  awakening  from  that  slumber,  deceased 
bad  fully  recovered  all  his  faculties,  and  was 
free  from  any  apparent  Inflaence  of  prevlcns 
potations.  We  agree  with  the  trial  court 
that  there  was  plenary  evidence  on  wblCb 
Jury  might  have  based  a  negative  answer  to 
the.  question  submitted  to  them. 

3.  Error  is  assigned  upon  Instructions  sub- 
stantially to  the  effect  that  the  phrase  in  the 
policy  "under  the  influence  of  any  intoxicant" 
meant  not  every  and  any  influence  however 
slight,  but  such  degree  of  Influence  as  would 
materially  impair  the  deceased's  ability  to 
care  for  himself  and  guard  against  casualties, 
and  that  such  degree  of  influence  was  equiva- 
lent to  intoxication  in  the  ordinary  meaning 
of  that  word ;  that  the  Jury  should  not  an- 
swer the  question  in  tbe  affirmative  unless 
they  found  that  he  was  "Intoxicated"  or 
"drunk."  The  entire' phrase  of  the  policy  in 
which  these  words  occur  is  "where  tbe  acci- 
dental injury  is  sustained  while  the  assured 
is  insane,  delirious,  or  under  tbe  influence  of 
any  intoxicant  or  narcotic."  The  rule,  of 
course,  is  thoroughly  established  that  in  case 
of  ambiguity  tbe  words  of  an  insurance  poli- 
cy are  to  be  read  most  favorably  to  the  in- 
sured. Here  the  intimate  association  of  the 
words  "under  the  Influence  of  intoxicants" 
with  tbe  words  "insane  or  delirious"  at  once 
suggests  that  the  influence  of  intoxicants  In- 
tended to  be  described  has  some  similarity  in 
character  with  insanity  or  delirium.  Again, 
it  must  be  presumed  that  this  provision  is  in- 
cluded in  the  policy  for  some  practical  pur- 
pose, and  that,  therefore.  It  is  intended  to 
describe  a  condition  which  at  least  might  en- 
hance or  affect  the  insurer's  liability.  The 
"influence  of  intoxicants"  is  a  very  elastic 
term.  We  are  told  by  physicians  and  experi- 
menters that  the  .most  trifling  quantity  of 
alcohol  has  some  effect  and  that  its  effect 
persists  for  days,  if  not  permanently,  so  that 
one  is  literally  under  the  influence  from  a 
single  ordinary  portion.  We  know  as  a  mat- 
ter of  common  knowledge  that  one  of  the 
firs{  influences  may  be  to  stimulate  thoso 
very  faculties  of  observation  and  alertness 
which  would  Improve  the  capacity  of  the  sub- 
ject to  shield  himself  from  danger,  or  escape, 
and  that  some  such  degree  of  Influence  of  an 
intoxicant  would  not  in  any  respect  increase 
the  peril  of  injury.  It  is  therefore  a  natural 
and  almost  necessary  assumption  that  these 
words  were  not  inserted  in  the  policy  for  the 
purpose  of  depriving  the  assured  of  the  bene- 
flt  thereof  in  case  of  every  and  any  Influence 
of  intoxicating  liquors,  however  slight  and 
however  nonprejudicial  to  the  insurer.  The 
field,  therefore,  is  open  for  construction  to 
ascertain  Just  what  degree  or  kind  of  influ- 
ence is  referred  to.  As  already  said,  we  must 
presume  that  it  means  such  and  so  much  In- 
fluence as  Impairs  the  ability  of  the  subject 
to  care  for  himself,  and  thus  increases  the 
probability  of  his  suffering  accidental  injury. 
In  light  of  such  reasoning  It  has  been  decided 


Digitized  by  LjOOQ  l€ 


wis.) 


IN  RE  IIULLAN'S  WILL. 


723 


by  all  coorta  epeaklng  npon  the  subject  that 
Influence  of  Intoxicants  In  accident  policies 
means  the  same  thing  as  the  word  "intoxica- 
tion." 3  Joyce,  Ins.  |  2612;  Standard  Ins. 
Co.  ▼.  Jones,  94  Ala.  434,  10  South.  530; 
Campbell  v.  Fidelity  Ins.  Co.,  109  Ky.  661,  60 
S.  W.  492;  Jones  r.  Ace.  Ass'n,  92  Iowa,  654, 
61  N.  W.  485 ;  Prader  v.  Ace  Ass'n,  95  Iowa, 
149,  63  N.  W.  601.  In  this  field  of  indeflnite- 
ness  It  Is  Important  that  some  exact  line 
should  be  adopted  by  which  the  rights  of 
parties  are  rendered  certain,  and.  In  absence 
of  any  cogent  reasons  to  the  contrary,  we 
deem  it  wise  and  justifiable  to  adopt  this  line 
of  demarcation  which  has  been  approved  by 
express  decision  of  otuer  courts,  especially 
since  such  decisions  preceded  the  date  of  this 
contract,  and  may  reasonably  be  presumed  to 
have  been  In  mind  when  Its  phraseology  was 
adopted.  We  conclude  that  the  Instruction 
was  substantially  correct 

4.  Refusal  of  certain  requested  Instructions 
is  assigned  as  error.  They  assumed  a  state 
of  intoxication  at  some  time. during  the  even- 
ing prior  to  the  death  of  Insured.  Since,  as 
we  have  said,  this  fact  was  in  dispute,  the 
requests  were  Improper  in  form,  and  no  error 
was  Involved  In  their  refnsaL 

Judgment  affirmed. 

WINSLOW,  O.  J.,  took  no  part 


In  re  MULLAN'S  WILL. 

FOWLEB  V.  CRANDALL. 

(Snpreme  Court  of  ^^sconsin.     Oct  5,  1909.) 

1.  Wills  (j  31  •)—"Te8tamentaby  Capacity." 

Where  testatrix  possessed  sufficient  mental 
powers  to  call  to  mind  the  particulars  of  ber 
business  and  the  affain  of  life,  and  to  retain 
them  for  such  a  time  as  to  perceive  and  under- 
stand their  obvious  relations  and  to  form  a  ra- 
tional judgment  in  relation  to  them,  she  had 
"testamentary  capacity." 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  §i  6&-m;   Dec.  Dig.  §  31.* 

For  other  definitions,  see  Words  and  Phrases, 
▼ol.  S,  pp.  6929-6931.] 

2.  Wills  (8  166*)— Undue  Influencb— Evi- 
dence. 

Facts  heU  insufficient  to  warrant  findings 
of  undue  influence  in  the  execution  of  a  will. 

[Ed.  Note.— For  other  cases,  see  Wills,  Dec. 
Dig.  I  160.*] 

Appeal  from  Circuit  Court,  Dunn  Cotinty; 
B.  W.  Helms,  Judge. 

Application  by  Roland  D.  Crandall  for  the 
probate  of  the  will  of  Mary  R.  Mullan,  de- 
ceased, to  which  Hattle  Fowler  filed  objec- 
tions. An  order  of  the  couhty  court  denying 
probate,  was  reversed  on  appeal  to  the  cir- 
cuit court  and  contestant  appeals.    Affirmed. 

This  proceeding  was  commenced  In  the 
county  court  for  Dunn  county  by  a  petition 
for  the  probate  of  the  will  of  Mary  R.  Mul- 
lan, deceased.  A  contest  was  filed  to  the 
probate  in  behalf  of  Hattle  Fowler,  an  in- 


sane danghtor  and  the  sole  heir  at  law  of 
the  deceased.  The  county  court  found  that 
the  testatrix  did  not  have  sufficient  mental 
capacity  to  make  a  will  at  the  time  of  thfe 
execution  of  the  alleged  will,  and  that  ttSR 
execution  of  It  was  obtained  by  fraud  and 
undue  influence.  Probate  of  the  writing  was 
denied.  Upon  appeal  to  the  circuit  court 
judgment  was  entered  reversing  the  judg- 
ment of  the  county  court  and  ordering  the 
probate  of  the  alleged  will.  This  Is  an  ap- 
peal from  such  judgment. 

Mary  R.  Mullan  died  at  Red  Wing,  Minn., 
February  13,  1908,  aged  74%  years.  The  al- 
leged will  was  executed  two  months  before 
at  the  residence  of  R.  D.  Crandall  in  Red 
Wing,  to  which  the  deceased  had  gone  in  the 
previous  October  from  her  home  at  Meno- 
monie.  Wis.  Hattle  Fowler,  a  daughter  and 
the  sole  heir  at  law  of  the  deceased,  is  the 
contestant  She  has  been  confined  in  a  coun- 
ty insane  asylum  since  1892.  The  deceased 
also  left  surviving  her  three  sisters  and  four 
brothers.  Maggie  Crandall,  the  wife  of  R. 
D.  Crandall,  was  taken  into  the  home  of  the 
deceased  when  she  was  seven  years  of  ag%. 
and  continued  to  live  there  until  her  mar- 
riage. She  was  never  adopted,  but  Is  re- 
ferred to  in  the  will  as  the  adopted  daughter 
of  the  deceased.  After  providing  for  the 
debts  of  the  deceased  and  for  funeral  ex- 
penses, the  will  gives  Battle  Fowler  $3,000; 
$10  is  given  to  each  of  the  brothers  and  ais- 
ters  of  the  deceased,  and  the  residue  of  the 
estate  is  then  devised  to  Maggie  Crandall 
and  her  husband.  The  deceased  at  the  tlfiie 
of  her  death  possessed  about  $100  worth  of 
personal  property.  The  balance  of  her  es- 
tate, between  $26,000  and  $28,000,  consisted 
of  real  estate,  about  one-half  of  which  was 
situated  In  Minnesota  and  one-half  in  Wis- 
consin. Her  indebtedness,  exclusive  of  $},- 
000  Incurred  as  funeral  expenses,  was  from 
$5,000  to  $6,000.  The  estate  of  the  deceased 
had  been  accumulated  by  conducting  a  mil- 
linery store  in  Menomonie.  She  had  been 
twice  married;  her  first  husband  dying  soibe 
15  years  before  she  did,  and  ber  second 
husband  4  or  6  years  before. 

In  behalf  of  the  contestant  of  the  will 
it  is  claimed  that  the  evidence  Introduced 
shows  that  the  deceased  was  of  insufficient 
mental  capacity  to  make  a  will;  that  she 
was  physically  weak  and  feeble,  and  that  her 
mental  faculties  had  become  Impaired  to 
such  an  extent  that  she  was  unable  to  com- 
prehend and  understand  her  business  afTaira, 
that  she  was  unable  to  keep  in  mind  ber  re- 
lationship and  natural  obligations  to  her 
daughter  and  relatives,  and  lost  mental  con- 
trol of  herself  and  her  property  to  an  extent 
which  evinced  ber  Incapacity  to  transact 
business  or  to  make  a  will;  and  that  this 
condition  had  existed  for  a  considerable  time 
before  the  making  of  the  will  In  question. 
It  is  also  claimed  that  she  was  fio  unduly 


•For  otbar  ettet  see  same  topic  and  section  NUMBER  In  D«c.  *  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


724 


122  NORTHWESTERN  REPORTER. 


(Wla. 


Influenced  by  one  Boardman  and  the  Cran- 
dalls  to  make  this  will  that  It  la  not  the 
expression  of  her  wishes  and  desires  In  the 
final  disposition  of  her  property,  and  that 
therefore  It  was  a  fraudulent  proceeding  by 
these  parties  for  their  personal  gain  and 
benefit.  On  the  other  hand.  It  is  claimed 
that  the  evidence  shows  that  the  deceased 
had  never  been  a  good  manager  of  her  prop- 
erty; that  the  feebleness  of  body  and  dullness 
of  the  senses  were  only  the  accompaniments 
of  age,  and  that  the  Insistence  of  the  deceas- 
ed for  participation  in  her  numerous  busi- 
ness transactions  Indicate  that  she  retained 
an  unusual  and  sufficient  mental  capacity  to 
do  business  and  to  attend  to  her  affairs;  that 
far  from  being  the  victim  of  undue  influ- 
ence, she  was  a  self-reliant  and  assertive 
person,  and  always  attended  to  her  affairs; 
that  she  fully  comprehended  and  understood 
them,  and  acted  freely  in  the  making  of  the 
win  and  the  disposition  of  her  property. 
After  a  full  hearing  the  circuit  court  held 
that  she  had  a  sufficient  mental  capacity  to 
make  a  will,  and  that  she  was  not  induced  to 
make  it  by  the  undue  Influence  of  others. 
The  court  ordered  the  will  admitted  to  pro- 
bate. 

J.  R.  Mathews  and  R.  E.  Bundy,  for  ap- 
pellant. Freeman  &  Freeman,  for  respond- 
ent 

SIEBECKER,  J.  (after  stating  the  facts  as 
above).  It  is  argued  that  the  trial  court's 
finding  that  the  testatrix  had  mental  capacity 
to  make  the  will  is  against  the  clear  prepon- 
derance of  the  evidence.  In  passing  on  this 
question  the  fact  that  the  trial  court  had 
the  fullest  opportunity  to  observe  the  wit- 
nesses while  testifying,  and  to  give  proper 
weight  to  their  evidence,  must  not  be  over- 
looked. Its  conclusions  therefore  are  of 
weight,  and  cannot  be  disturbed,  unless  it 
is  apparent  from  an  examination  of  the 
evidence  that  they  are  against  the  clear 
preponderance  of  the  evidence.  It  is  strenu- 
ously asserted  that  the  evidence  clearly 
shows  that  Mrs.  Mullan  was  so  weak  mental- 
ly at  the  time  the  will  was  made  that  she  was 
incapable  of  understanding  and  comprehend- 
ing the  nature  of  the  act,  the  extent  of  the 
disposition  made  by  the  will,  who  were  the 
natural  objects  of  her  bounty,  and  the  man- 
ner In  which  she  desired  that  disposition 
should  be  effected.  Reliance  for  this  con- 
tention rests  mainly  on  the  evidence  tending 
to  show  the  change  in  her  physical  health 
and  strength,  her  changed  mental  attitude 
and  her  unsuccessful  administration  of  her 
business  and  financial  affairs  in  the  later 
period  of  her  life.  It  is  undisputed  that  she 
had  been  an  intelligent  person  of  strong  wlU 
and  fair  business  ability  In  the  prime  of  her 
life.  She  had  always  evinced  the  char- 
acteristics of  independence  and  self-reliance 
in  IJje  conduct  of  her  affairs.    Au  examina- 


tion of  the  evidence  discloses  that  these  char- 
acteristics were  impaired  in  her  old  age,  but 
there  was  not  such  a  d^xee  of  impairment 
of  her  faculties  and  abilities  in  comprehend- 
ing and  understanding  her  business  affairs  as 
constitutes  mental  incompetency  to  make  a 
will.  It  Is  shown  that  she  still  possessed 
mental  powers  sufficient  to  call  to  mind  the 
particulars  of  her  business  and  the  affairs 
of  life,  and  to  bold  them  In  mind  for  such  a 
time  as  to  perceive  and  understand  their  ob- 
vious relations,  and  to  form  a  rational  judg- 
ment in  relation  to  them.  This  condition  of 
her  mental  faculties  evinced  sufficient  men- 
tal capacity  to  enable  her  to  make  a  will. 

As  to  whether  the  testatrix  was  unduly 
Influenced  to  make  this  will,  we  are  persuad- 
ed that  the  trial  court  in  its  opinion  correct- 
ly expresses  the  state  of  the  evidence  on  this 
issue.  He  found  that  the  evidence  was  de- 
void of  anything  showing  any  solicitation  by 
Crandall  or  his  wife,  or  any  other  person, 
for  the  making  of  this  will,  that  the  evidence 
is  well-nigh  barren  of  facts  tending  to  show 
that  she  was  susceptible  of  being  influenced 
In  dealing  with  her  property,  and  that  her 
acts  ai)d  conduct  refute  the  claim  that  she 
was  susceptible  to  the  Influence  of  others  In 
these  matters.  Her  attitude  toward  the 
Crandalls  and  others  dealing  with  her  was 
that  of  a  self-willed  and  self-reliant  person. 
While  the  transaction  of  the  settlement  with 
her  tenant  and  the  giving  of  the  powers  of 
attorney  to  Crandall  and  Boardman  show  a 
want  of  good  business  management,  and  may 
Indicate  a  want  of  fair  dealing  with  her  by 
all  of  these  persons,  it  is  not  sufficient  to 
show  that  she  was  in  fact  unduly  Influenced 
by  them  to  make  this  will.  We  must  hold 
that  the  trial  court's  conclusion  on  this  ques- 
tion cannot  be  disturbed  by  this  court,  and 
that  the  judgment  admitting  the  will  tO'  pro- 
bate was  correct 

Judgment  affirmed. 

WINSLOW,  C.  J.,  took  no  part 


SWENSON  v.  WELLS. 
(Supreme  Court  of  Wisconsin.     Oct  5,  1909.) 
1.  Abatekeht  and  Revival  (|  27*)— Defects 

IN     PBOCEEDINOS— NONJOINDEB     OF     PLAIN- 
TIFFS. 

Under  St  1898,  |  2610,  providing  that, 
when  a  complete  determination  of  the  contro- 
versy cannot  be  had  without  the  presence  of 
any  person,  not  a  party,  having  an  interest  in 
the  subject-mattef,  the  court  shall  order  him 
brought  in,  if  a  contract  for  the  sale  to  defend- 
ant of  an  automobile,  for  which  plaintiff  brought 
replevin,  was  made  jointly  with  plaintiff  and 
another,  so  that  such  other  was  a  necessary 
party  to  the  action,  the  court  should  have  or- 
dered him  brought  in,  and  should  no't  have 
abated  the  action. 

[Ed.  Note.— For  other  cages,  see  Abatement 
and  Revival,  Cent  Dig.  {  160;  Dec  Dig.  S 
27.*] 


•For  othar  cuea  lee  wme  topic  and  section  NUMBER  In  Dec.  ft  Am.  Dlca.  1907  to  dat*.  *  Reporter  IndezM 


Digitized  by  LjOOQ  l€ 


WlB.) 


8WENS0N  T.  WELLS. 


725 


2.  Rkputiit  (I  8*)— RisHT  o»  Action— Ttti-k 
TO    SKFASAim  Action— INTESEST   or   Solk 

OWNEBSHIP. 

Ordinarily  sole  ownership  in  plaintiff  is 
not  neceasaiv  to  maintain  replevin  against  a 
■ttanger  haTlng  neither  title  nor  right  to  poa- 
aession,  if  plaintiff  has  an  interest  in  the  prop- 
erty and  is  entitled  to  possession. 

[Ed.    Note.— For   other   cases,    see    Replevin, 
Cent.  Dig.  H  45-67 ;    Dec.  Dig.  |  8.*] 
8.  Replevin    (J   21*)  —  Actions  —  Parties — 

I4.AINTIFFB. 

The  complaint  in  replevin  alleged  that 
plaintiff  cwned  and  was  entitled  to  possession. 
of  an  aotomobile ;  that  defendant  claimed  plain- 
tiff traded  it  for  certain  lots,  which  defendant 
had  deeded  to  W.;  that  plaintiff  agreed  to 
trade  the  automobile  for  the  lots  if  they  wei« 
as  represented,  which  they  were  not,  but  de- 
fendant wrongfully  took  the  automobile  from 
plaintiff;  and  the  answer  in  abatement  alleged 
that  the  contract  for  the  sale  of  the  automobile 
was  in  writing,  and  was  between  plaintiff  and 
W.  Jointly,  and  defendant,  and  that  W.  was 
still  living.  Held,  that  W.  was  a  necessary 
party  to  the  action. 

[Ed.  Note.— For  other  cases,  see  Replevin, 
Cent.  Dig.  {  121;    Dec.  Dig.  {  21.*] 

Appeal  from  Circuit  Court,  Sauk  County ; 

E.  Ray  Stevens,  Judge. 

Replevin  by  Albert  P.  Swenson  against  L. 

F.  Wells.  From  a  Judgment  abaUng  the  ac- 
tion for  nonjoinder  of  plaintiffs,  plaintiff 
appeals.  Reversed,  and  remanded  for  fur- 
ther proceedings. 

Tbis  is  an  action  of  replevin,  brought  to 
recover  possession  of  an  automobile.  The 
complaint  alleges  that  tlie  appellant  was 
the  owner  and  entitled  to  iwssesslon  of  it; 
that  it  was  of  the  value  of  $1,S00;  that 
defendant  In  July,  1908,  pretended  and 
claimed  that  plaintiff  traded  said  car  for  16 
lots  in  Lone  Rock,  Wis.;  that  defendant 
fraudulently  misrepresented  the  value  of  said 
lots;  that  defendant  deeded  said  lots  to 
one  W.  O.  Walker;  that  plaintiff  agreed  to 
trade  the  automobile  for  lots.  If  after  ex- 
amination said  lots  were  found  to  be  as 
represented;  that  said  lots  were  found  not 
as  represented;  and  that  defendant  took 
the  automobile  wrongfully  and  unlawfully 
from  plaintiff.  The  complaint  prays  for  the 
return  of  said  property,  or  $1,500,  its  value, 
together  with  damages. 

The  answer  purports  to  set  up  two  de- 
fenses: First,  one  in  abatement  as  follows: 
"(1)  For  a  first  defense  the  defendant  alleg- 
es that  the  contract  mentioned  in  the  plain- 
tiff's complaint  was  in  writing  and  that 
a  copy  thereof  is  hereto  attached  and  made 
part  of  this  defense;  that  the  said  contract 
was  made  by  the  plaintiff,  Albert  P.  Swen- 
son, and  one  W.  O.  Walker,  Jointly,  by  and 
through  one  S.  D.  Burke,  their  duly  author- 
ized agent;  that  the  said  W.  O.  Walker  is 
still  living  at  Madison,  in  Dane  county.  Wis," 
Second:  An  answer  in  bar,  attached  to 
which  answer  or  second  defense  was  a  copy 
of  an  agreement  purporting  to  have  been 
made   between   the    defendant   and   W.    G. 


Walker  and.  plaintiff.  This  contract  set  'lip 
an  agreement  between  the  defendant,  party 
of  the  first  part,  and  plaintiff  and  W.  G. 
Walker,  parties  of  the  second  part,  whicb 
provided  for  the  sale  by  the  parties  of  the 
second  part  to  the  party  of  the  first  part  of 
the  automobile  and  the  payment  of  $500  in 
cash  In  consideration  of  said  lots  referred 
to  in  the  complaint.  The  contract  contained 
other  provisions  ordinarily  found  in  land 
contracts  and  not  necessary  to  be  stated  here. 
The  court  sent  the  case  to  the  Jury  on  the 
answer  in  abatement  upon  the  issue  as  to 
whether  or  not  the  plaintiff  was  the  sole 
owner,  and  the  following  question  was  sub- 
mitted: "On  July  14,  1908,  was  the  plaintiff 
the  sole  owner  of  the  automobile  in  ques- 
tion?" which  question  the  Jury  answered, 
"No."  Upon  this  finding  the  court  ordered 
the  action  abated,  and  Judgment  was  enter- 
ed accordingly,  from  which  this  appeal  was 
taken. 

F.  K.  Shuttleworth,  for  appellant  Thom- 
as W.  King  (Orotophorst,  Evans  &  Thomas, 
of  counsel),  for  respondent. 

KERWIN,  J.  (after  stating  the  facts  as 
above).  Considerable  argument  is  made  In 
this  case  respecting  the  question  as  to  wheth- 
er or  not  the  answer  in  abatement  was  sufll- 
cient,  and  whether  it  was  not  waived  by  the 
answer  in  bar.  We  shall  spend  no  time  on 
this  point,  because  we  think  it  clear,  under 
the  provisions  of  section  2610,  St.  1898,  that 
the  court  should  not  have  ordered  the  action 
abated,  even  conceding,  for  the  purpose  of 
the  argument,  that  the  answer  in  abatement 
was  sufficient  and  the  issue  properly  found 
in  favor  of  the  defendant.  Section  2610  pro- 
vides, in  effect,  tliat  when  a  complete  deter- 
mination of  the  controversy  cannot  be  had 
without  the  presence  of  other  parties,  or 
any  persons  not  parties  to  the  action  having 
such  interests  in  the  subject-matter  as  re- 
quire them  to  be  parties  for  their  protection, 
the  court  shall  order  them  to  l>e  brought  in. 
We  think  the  provisions  of  this  statute  made 
it  the  duty  of  the  court,  upon  the  determina- 
tion of  the  Issue  in  abatement  against  the 
plaintiff,  to  stay  proceedings  In  the  action- 
and  order  the  necessary  party  plaintiff- 
brought  in,  and  not  order  the  action  abated. 
Section  2610,  St  1898;  Shove  v.  Shove,  6» 
Wis.  425,  34  N.  W.  392;  Carney  v.  Glelss- 
ner,  62  Wis.  497,  22  N.  W.  735;  Emerson 
et  al.  V.  Schwindt  et  al.,  108  Wis.  173,  84 
N.  W.  186 ;  McDougald  v.  New  Richmond  R. 
M.  Co.,  125  Wis.  121,  103  N.  W.  244. 

It  may  be  well  to  observe,  in  passing,  that 
ordinarily  sole  ownership  in  a  plaintiff  su- 
ing in  replevin  is  not  essential  to  the  main- 
tenance of  the  action,  because  he  may  re- 
cover, though  not  the  sole  owner,  against  a 
stranger  who  has  neither  title  nor  right  of 
possession,  if  he  has  an  interest  and  is  en- 


•For  otbtr  eases  see  same  toplo  and  secUon  NUMBER  In  Dec.  *  Am.  Diss.  1»07  to  date,  *  Reporter  Indexes 


Digitizecf  by  Google 


726 


122  NORTHWESTERN  RBPORTEIR. 


(Wla. 


HQed  to  possession.  For  example,  In  oer 
<HUn  cases  a  tenant  In  common  may  main- 
tain an  action  In  Us  own  name  to  recover 
IKtssesslon  of  personal  property  from  a  stran- 
ger. In  the  absence  of  special  circumstances 
going  to  show  tbe  necessity  of  any  otber  par- 
ty plaintiff.  But  in  tlie  case  before  as  we 
are  of  tbe  opinion  that  tbe  court  below  right- 
ly regarded  the  case  as  a  proper  one  requir- 
ing the  presence  of  Walker  as  a  party  plain- 
tiff, upon  tbe  allegations  In  tbe  pleadings 
and  agreement  referred  to  in  the  answer  in 
abatement.  The  court  is.  therefore,  of  the 
opinion  that  the  court  below  was  in  error  in 
ordering  the  case  abated.  Therefore  the 
judgment  must  be  reversed. 

Tlie  Judgment  of  the  court  below  is  re- 
versed, and  the  case  remanded  for  further 
proceedings  according  to  law. 


WINSLOW,  C. 
took  no  part 


J.,  and  sie:beckeb,  J^ 


STATE  ex  rel.  REDENIUS  v.  WAGGBNSOX 
et  al. 

(Supreme  Court  of  Wisconsin.     Oct  B,  1909.) 

1.  Mahoamus    (I    10*)  —  Pbocexdino  —  Elk- 

MENTS  OF  LlABILlTT. 

Relator's  right  to  have  the  required  act 
performed  by  respondent  and  respondent's  duty 
to  perform  it  at  the  time  and  in  tlie  manner  de- 
manded must  concur  before  mandamus  will  issue 
to  compel'  tbe  act 

fEd.  Note.— For  other  rases,  see  Mandamus. 
Cent  Dig.  |  37 ;   Dec.  Dig.  {  lO.'l 

2.  Mandamus  (8  l.'vl*)  —  PnocEEniNO  —  Peti- 
tion—Demand  AND  REFUBAIi— NETESSrrr. 

Where  the  duty  to  be  enforced  is  of  a  pri- 
vate nature,  the  petition  for  mandamus  must 
show  that  a  demand  has  been  made  upon  re- 
spondent for  substantially  tbe  particular  thing 
to  be  done  of  tbe  person  bound  to  do  It  and  hii 
refusal. 

[Ed.  Note. — For  other  cases,  see  Mandamus, 
Cent.  Dig.  t  308;    Dec.  Dig.  {  154.*] 

3.  Mandauits  (8  1.'>4*)—Pbockbdino8— Peti- 
tion —  Respondent's  Duty  —  Pebfobuance 
of  Conditions  Precedent. 

Where  the  right  to  have  an  act  done  at  tbe 
time  and  in  the  manner  demanded  by  relator 
in  mandamus  is  dependent  npon  some  otber  act 
having  been  done  or  upon  the  existence  of  some 
condition  precedent  the  petition  must  affirma- 
tively show  the  performance  of  such  preliminary 
act  or  tbe  existence  of  such  condition. 

[Ed.  Note.— For  otber  cases,  see  Mandamus, 
Cent  Dig.  i  297:  Dec  Dig.  f  154.*] 

4.  Mandaitos  (S  154*)— Acts  or  Boabds— Ex- 
penditube  or  Public  Monet— Repaib  or 
Dbainaoe  Ditch. 

Where  a  petition  for  mandamus  to  compel 
drainage  commissioners  to  repair  a  ditch  did  not 
show  that  respondents  had  available  funds  with 
which  to  make  such  repairs,  and  did  show  that 
tbe  only  way  to  obtain  such  funds  was  by  re- 
opondpnt  filing  an  annual  report  as  reqnirecl  by 
statute  (iaws  1905.  p.  687,  c.  419),  specifyhig 
the  places  needing  repairs,  etc,  and  securing  ju- 
dicial approval  of  the  proposed  work  and  ex- 
penditure, and  that  no  such  report  had  been  fil- 
<'il.  mandamus  will  not  issue  to  compel  tbe  re- 


pain,  even  thongh  tbey  an  Aown  to  be  nec- 
essary. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Cent  Dig.  I  303 ;   Dec  Dig.  i  154.*] 

Appeal  from  Circuit  Court  Monroe  Comi- 
ty;  B.  W.  Helms,  Judge. 

Mandamus  by  the  State,  on  the  relaticm 
of  Albert  Redenius,  against  Chris  Waggen- 
son  and  others.  From  an  order  quashing  an 
altemative  writ  relator  appeals.    AflSrmed. 

Mandamus  proceedings  to  require  drainage 
commissioners  to  repair  the  ditch  nnder 
their  charge. 

An  alternative  writ  of  mandamus  was  is- 
sued in  due  form  which,  on  motion  duly 
made,  was  quashed  because  (1)  the  facts 
stated  as  a  basis  for  tbe  proceedings  were 
InsufBclent;  (2)  such  facts  were  insufflcient 
to  show  relator  to  be  entitled  to  prosecute  the 
proceedings. 

Tbe  facts  relied  npon  are.  In  brief,  as  t<A- 
lows:  Relator  is  the  owner  of  certain  lands 
through  which  a  portion  of  a  drainage  sys- 
tem has  b^n  constructed  and  put  In  opera- 
tion under  the  laws  of  the  state  of  Wiscon- 
sin. It  has  been  the  duty  of  tbe  drainage 
commissioners  since  tbe  Installation  of  the 
drainage  system  to  keep  such  system  In  re- 
pair and,  since  the  passage  of  chapter  419, 
p.  687,  Laws  1905,  on  or  about  the  first  Tues- 
day of  June  each  year  to  file  with  the  clerk 
of  the  circuit  court  having  Jurisdiction  of 
the  matter  a  report  specifying  in  detail  the 
repairs  necessary  and  the  sum  to  be  assessed 
to  make  tbe  same  against  each  tract  lot 
easement  or  corporation.  About  a  year  after 
the  completion  of  the  drainage  ditch  through 
relator's  land  it  commenced  to  fill  up  with 
sand.  The  deposit  therein  has  increased  till 
It  nearly  Alls  the  ditch,  causing  large  quan- 
tities of  water,  which  would  otherwise  be 
carried  down  the  same,  to  be  deposited  on  re- 
lator's land,  rendering  it  valueless  for  farm- 
ing purposes,  to  bis  great  damage.  The  com- 
missioners have  often  been  requested  to  put 
the  ditch  in  a  proper  state  of  repair  but  have 
wholly  refused  to  do  so.  They  have  not  filed 
any  report  as' required  by  the  law  aforesaid 
or  raised  any  money  to  make  necessary  re- 
pairs upon  the  ditch. 

An  altemative  writ  was  issued  as  requested 
requiring  the  commissioners  to  repair  the 
drainage  ditdi  where  it  passes  through  re- 
lator's land,  or  show  cause  to  the  contrary 
before  tbe  circuit  court  for  Monroe  county. 

Graham  &  Graham,  for  appellant  Naylor 
&  McCaul,  for  respondents. 

MARSHALL,  3.  (after  stating  the  facts 
as  above).  Appellant's  counsel  present  this 
appeal  as  if,  since  appellant  has  a  clear 
legal  right  to  have  the  drainage  ditch  re- 
paired, the  alternative  writ  by  which  it  was 
sought  to  enforce  such  right  should  not  have 
been  quashed.     It  does  not  necessarily  fol- 


•>'or  other  cases  see  same  topic  and  section  NUMBER  is  Dec.  ft  Am.  Diss.  IMM  to  data,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Wla.) 


BEKKBDAHL  t.  VILLAGE  OP  WE8TBT. 


727 


low,  becanse  a  person  has  a  clear  legal  right 
which  can  only  be  effective  by  the  act  of  an- 
other, that  it  la  the  clear  duty  of  the  latter 
to  perform  such  act  at  the  particular  time 
and  In  the  particular  manner  such  person 
may  demand  it.  It  Is  fundamental  that  both 
conditions  must  exist;  the  right  and  the 
duty  to  act,  before  the  extraordinary  remedy 
can  be  successfully  invoked.  State  ex  rel. 
Pflster  V.  Manitowoc.  52  Wis.  423,  9  N.  W. 
607;  State  ex  rel.  Board  of  Education  v. 
Hunter,  111  Wis.  582.  87  N.  W.  485:  State  ex 
rel.  Wisconsin  Met.  Tel.  C!o.  v.  City  of  Mil- 
waukee, 132  Wis.  615,  113  N.  W.  40:  State 
ex  rei.  Rowe  ▼.  Krumenauer,  135  Wis.  185, 
115  N.  W.  708:  State  ex  rel.  Fire  4  Rust 
Proof  Construction  Company  v.  Icke,  136 
Wis.  683,  118  N.  W.  196,  20  L.  B.  A.  (N.  S.) 
800. 

When  the  duty  sought  to  be  enforced  is  of 
a  private  nature  a  demand  must  be  made  for 
substantially  the  particular  thing,  of  the  par- 
ticular person  upon  whom  the  duty  of  per^ 
formance  rests,  and  his  refusal  thereof,  must 
precede  application  for  a  writ  to  coerce  such 
person  to  act,  and  the  facts  in  that  regard 
must  be  made  to  appear  in  the  petition  for 
the  writ  to  warrant  its  issuance.  Merrill 
on  Mandamus,  {|  222,  223.  Where  the  right 
to  have  the  particular  act  done  at  the  time 
and  In  the  manner  demanded  is  dependent 
upon  some  other  act  having  been  done  or 
some  condition  existing.  In  order  to  show  af- 
firmatively by  the  petition  for  the  writ,  that 
the  relator  Is  entitled,  as  claimed,  facts  must 
be  stated  therein  showing  that  such  prelimi- 
nary act  has  been  done  or  condition  created. 
State  ex  rel.  Spauldlng  v.  Elwood.  11  Wis. 
17;  State  ex  rel.  Sloan  et  aL  v.  Warner.  Sec- 
retary of  State,  65  Wis.  271,  0  N.  W.  795,  13 
X.  W.  255:  State  ex  rel.  Neeves  v.  Wood 
County,  72  Wis.  629.  40  N.  W.  381;  State 
ex  rel.  Gericke  v.  Mayor  &  Common  Council 
of  Ahnapee.  99  Wis.  322.  74  N.  W.  783. 

The  quoted  authorities  are  particularly  ap- 
plicable to  this  case,  in  that  they  are  to  the 
effect  that  where  the  doing  of  the  official  act 
In  question  requires  the  expenditure  of  mon- 
ey, performance  cannot  be  coerced  by  man- 
damns  in  absence  of  a  showing  that  money 
Is  presently  available,  applicable  to  do  the 
particular  matter. 

Now  in  this  case  there  is  no  showing  in  the 
petition  tliat  respondents  had  money  which 
could  properly  be  applied  to  repair  of  the 
ditch.  If  they  tiad  no  such  money  under 
their  control,  it  was  plainly  shown  by  the 
relator,  as  the  fact  is,  that  it  was  only  ob- 
tainable by  their  filing  a  report,  as  the  drain- 
age law  (chapter  419,  p.  687,  Laws  1905)  pro- 
vides, specifying,  among  other  things,  in  de- 
tail, the  labor  necessary  to  the  preservation 
and  protection  of  the  improvement,  the 
places  needing  repairs,  and  securing,  on  due 
notice  and  hearing.  Judicial  approval  of  the 
proposed  work  and  expenditure,  and  deter- 


mination of  the  amount  of  the  assessment  up- 
on each  particular  parcel  of  land  benefited 
and  collection  of  such  assessments  in  due 
course;  and  it  was  further  alleged  that 
no  such  report  had  been  made  though  the  law 
requires  one  to  be  made,  In  the  circumstances 
of  respondents,  annually,  to  the  court  having 
Jurisdiction  of  the  matter.  Thus  by  the  stat- 
ute it  is  left  to  the  Judgment  of  the  commis- 
sioners, preliminarily,  and  to  the  court  final- 
ly, what  repairs  to  a  drainage  ditch  are  need- 
ed, and  the  method  is  provided  for  obtaining 
the  necessary  funds,  which  is  necessarily  ex- 
clusive. 

The  most  the  petition  shows  as  to  default 
on  the  part  of  the  commissioners,  is  failure  to 
make  tiie  required  report.  No  action  in  that 
respect  was  demanded  before  commencement 
of  these  proceedings,  nor  do  such  proceedings 
contemplate  coercion  of  respondents  in  such 
respect.  So  far  as  Is  disclosed,  it  is  proposed 
to  cause  respondents  to  repair  the  ditch  re- 
gardless of  whether  there  Is  money  applicable 
therefor,  or  whether  the  conditions  precedent 
to  the  making  of  repairs  have  been  complied 
with,  merely  because  there  Is  need  for  the  re- 
pairs and  respondents  have  failed  to  present 
the  matter  to  the  court  for  consideration 
and  direction  and  in  due  course  accumulate 
the  necessary  money  to  meet  the  expense.  In 
other  words,  it  is  proposed  to  compel  respond- 
ents to  make  the  repairs  at  their  own  expense,  ■ 
as  a  sort  of  penalty  for  the  default  aforesaid, 
and  take  their  chances  of  later  recouping  the 
same  by  collection  of  approved  assessments 
upon  the  property  benefited.  Sufficient  has 
been  said  to  show,  clearly,  that  the  facts  stat- 
ed In  the  petition  for  the  writ  of  mandamus 
do  not  constitute  any  basis  for  the  relief 
sought  and,  therefore,  that  the  writ  was  prop* 
erly  quashed. 

Order  affirmed. 

WINSLOW,  O.  J.,  look  no  part 


BEKKEDAHL  v.   VILLAGE   OP   WESTBY 
et  al. 

(Supreme  Court  of  Wisconsin.     Oct  5,  1909.) 

1.  Evidence  (I  83*)— Presumptions— Leqal- 
rrr  or  Acts  or  Municipality. 

A  villsKe  liaviDK  the  right  under  the  stat- 
ute to  improve  and  widen  a  street,  it  must 
be  presumed  that  in  wideninK  such  street  it 
acted  lawfully,  in  absence  of  a  showing  to  the 
contrary. 

[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent.  Dig.  |  105;    Dec.  Dig.  |  83.*] 

2.  Municipal  Cobporations  (I  260*)— Pub- 
lic Improvements— Latino  Out  Stbeets— 
Determining   Widths — Authority. 

The  general  statutory  power  of  a  villaRe 
to  lay  out,  widen,  or  change  streets  authorized 
it  to  determine  the  width  of  the  traveled  track 
in  a  street  and  extend  its  width  accordingly. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  i  720;  Dec.  Dig.  | 
269.*] 


•For  ethar  esMS  le*  uun*  topic  «nd  ncUon  NQUBBR  In  Dec  *  Am.  Dlsi.  ISOT  to  data,  *  Reporter  Indezei 


Digitized  by  LjOOQIC 


728 


122  NORTHWESTERN  REPORTER. 


(Wis. 


8.   MUNICIPAt    COEPOBATIONS    (§    323*)— Pt7B- | 

Lio  IMPBOVEUENTS— Remedies  of  Pbofbbtt 

Owners — Injunctiok. 

The  complaint  alleged  that  plaintiff  owned 
a  lot  on  a  certain  street  which  was  several 
feet  higher  than  grade,  and  there  were  shade 
trees  just  inside  the  street  line ;  that  defend- 
ant village  fixed  the  curb  line  at  nine  feet  from 
the  street  line :  that  plaintiff,  as  required  b; 
the  village  authorities,  built  a  plank  sidewalk 
so  that  the  outer  edge  thereof  would  abut  the 
curb  line  so  fixed,  which  sidewalk  had  been 
used  for  some  seven  years  when  defendant  Til- 
lage awarded  a  contract  to  build  a  cement  curb ; 
that  plaintiff  believes  that  the  defendant  con- 
tractor intends  to  remove  the  sidewalk  and  to 
build  the  curb  six  feet  inside  of  the  curb  line 
previously  fixed,  so  that  the  space  occupied  by 
the  plank  walk  will  be  in  the  street,  and  will 
compel  plaintiff  to  build  a  six-foot  cement  side- 
walk partly  upon  bis  lot,  whereby  plaintiff  will 
be  deprived,  without  due  process  of  law  or 
compensation,  ot  a  strip  six  feet  wide,  doing 
him  irreparable  damage  by  compelling  him  to 
excavate  his  lot  and  remove  the  trees;  and  that 
'  plaintiff  believes  such  action  is  illeml,  etc. 
St.  1898,  i  &93,  subd.  11,  authorizes  villages  to 
lay  out,  widen,  or  extend  streets,  etc..  and  to 
make,  widen,  or  otherwise  improve  sidewalks; 
and  section  905  prescribes  the  procedure.  Beld, 
that  the  complaint  alleged  no  facts  showing  that 
defendant  was  not  acting  pursuant  to  law  in 
widening  the  «treet.  or  intended  to  forcibly  en- 
ter upon  plaintiff's  lot  against  his  will  and 
without  due  legal  proceedings,  and  plaintiff  was 
not  entitled  to  an  injunction. 

[Ed.  Note. — ^For  other  cases,  see  Municipal 
CornoratioM,  Cent  Dig.  |§  842-846;  Dec.  Dig. 
t  323.*] 

Appeal  from  Circuit  Court,  Vernon  Coun- 
ty;  James  O'Neill,  Judge. 

Action  by  Martin  H.  Bekkedahl  against  the 
Village  of  Westby  and  another.  From  an 
order  sustaining  a  demurrer  to '  the  com- 
plaint, plaintiff  appeals.    Affirmed. 

This  is  nn  appeal  from  an  order  sustain- 
ing a  demurrer  to  the  plaintiff's  complaint. 
The  complaint  alleges  in  effect  that  the  plain- 
tiff is,  and  has  been  for  many  years,  the 
owner  of  a  certain  lot  used  and  occupied  as 
his  residence  In  the  defendant  Tillage,  and 
which  abuts  on  La  Crosse  street,  and  that 
plaintiff  has  .gi^eatly  Improved  the  dwelling 
house  upon  sMA  premises,  and  that  said 
property  is  of  the  value  of  $10,000;  that  in 
front  of  said  residence  and  just  inside  of 
the  street  line  of  said  La  tirosse  street  are 
two  large  shade  trees,  furnishing  shade  to 
the  dwelling  house,  and  that  there  are 
other  and  smaller  trees,  all  standing  within 
from  2  to  6  feet  of  the  street  line,  and  that 
the  plaintlfTs  lot  Is  about  2  feet  higher  than 
the  grade  of  the  street  at  that  point;  that 
in  the  year  1901  the  Tillage  board  of  de- 
fendant Improved  a  portion  of  said  street 
by  macadamizing  that  part  of  said  street 
covering  the  block  lying  next  east  of  the 
block  in  which  plaintiff's  dwelling  house  is 
situate,  which  Improvement  included  the 
building  of  a  stone  curb  and  gutter  on  both 
sides  of  said  street;  that  while  the  Improve- 
ment was  under  consideration,  and  on  June 
1,  1901,  the  village  board  by  resolution  fixed 


and  determined  the  line  of  the  curb  for  said 
street  at  8  feet  from  the  street  line,  and  aft- 
erwards on  June  21,  1901,  changed  the  dis- 
tance to  9  feet,  and  on  said  last-named  date 
fixed  the  line  of  the  curb  at  9  feet  from 
the  street  line;  that  in  pursuance  thereto 
the  curb  on  the  north  side  of  La  Crosse 
street  was  built  9  feet  from  the  north  line 
of  said  street,  and  still  remains  there,  and 
that  no  action  has  been  taken  by  the  vil- 
lage board  of  defendant  changing  or  altering 
said  curb  line;  that  at  the  time  of  fixing  said 
curb  line  the  ofllcera  of  said  village  desig- 
nated and  caused  to  be  erected  monuments 
to  mark  the  curb  line  on  the  north  side  of 
said  street  in  the  block  lying  directly  west 
of  the  block  so  macadamized,  being  the  block 
in  which  plaintiff  resides,  and  the  officers 
of  defendant  directed  plaintiff  to  build  a 
plank  sidewalk  In  front  of  and  abutting 
his  property,  and  so  placed  the  same  that 
the  outer  edge  or  line  thereof  would  corres- 
pond to  and  be  in  line  with  the  stone  curb 
so  fixed  and  built  in  the  next  adjoining 
block,  and  that  plaintiff  In  good  faith  con- 
structed in  front  of  his  property  a  planfc 
sidewalk  5  feet  wide,  and  placed  the  outer 
edge  thereof  on  the  curb  line  so  designated, 
which  sidewalk  has  remained,  and  has  been 
continuously  used  for  public  travel,  until  on 
or  about  the  12tb  day  of  October,  1908; 
that  on  the  23d  day  of  June,  1908,  the  vil- 
lage board  of  defendant,  acting  upon  a  pe- 
tition of  the  property  owners  along  said 
street,  decided  to  macadamize  that  portUm 
of  said  La  Crosse  street  lying  west  of  the 
block  macadamized  as  before  stated,  ex- 
tending from  Main  street,  In  defendant  vil- 
lage, to  a  point  opposite  the  west  end  of 
plaintlfTs  property,  a  distance  of  about  9^^ 
rods,  and  on  the  36th  day  of  August,  1908, 
at  a  session  of  the  village  board,  defendant 
awarded  the  contract  of  building  a  cement 
curb  and  gutter  along  both  aides  of  said 
street  to  the  defendant,  Olson,  who  has  en- 
tered upon  said  work  and  has  proceeded  to 
construct  said  curb  anu  gutter;  that  on  the 
12th  day  of  October,  1908,  the  defendant  Ol- 
son, acting,  as  plaintiff  Is  informed  and  be- 
lieves, under  the  verbal  instruction  of  some 
of  the  individual  members  of  the  village 
board  of  defendant,  entered  upon  the  prem- 
ises of  plaintiff,  and  destroyed  and  remov- 
ed the  plaiik  sidewalk,  and  threatened  and 
still  threatens  and  Intends  to  build  and  con- 
struct the  cement  curb  and  gutter  about  8 
feet  inside  of  and  north  of  the  curb  line  des- 
ignated In  1901  by  the  village  board,  so  that 
all  that  portion  of  the  roadway  lying  south 
of  the  stone  curb,  including  the  space  oc- 
cupied by  plaintlfTs  plank  sidewalk,  will 
be  macadamized  and  thrown  into  the  street 
for  team  travel,  and  plaintiff  will  be  de- 
prived of  the  use  thereof  for  sidewalk  and 
boulevard  purposes;  on  information  and  be- 
lief, that  the  village  board  threatened  and 


•For  sther  cues  see  same  toplo  and  sectibn  NUMBER  ia  Dec.  *  Am.  Dig*.  1107  to  date,  t  Reporter  Indexes 


Digitized  by  LjOOQIC 


WlB.) 


BBKKEDAHL  y.  VILLAGE  OP  WESTBT. 


729 


Intend  to  compel  plaintiff  to  build  a  6-foot 
cement  sidewalk  north  of  said  curb,  and 
place  the  same  inside  and  north  of  the  pres- 
ent and  true  street  line,  and  upon  his  resi- 
dence lot,  and  that  In  order  to  so  buUd  the 
same  plaintiff  will  be  deprived  without  due 
process  of  law  and  without  compensation 
of  a  strip  of  Kind  6  feet  wide  and  about 
100  feet  long;  that  If  the  present  sidewalk 
space  Is  appropriated  by  the  public  for  team 
travel,  and  the  curb  and  gutter  built  on  the 
line  threatened,  it  will  result  In  gr^t  and 
Irreparable  damage  to  plaintiff  and  be  ruin- 
ous to  his  property  In  the  manner  In  which 
it  has  been  enjoyed,  and  will  permanently 
Impair  its  future  enjoyment;  that  the  tak- 
ing of  said  property  will  compel  plaintiff  to 
excavate  the  terraced  portion  of  his  front 
dooryard  a  depth  of  about  2  feet  and  6 
feet  wide,  and  will  necessitate  the  grubbing 
out  of  the  shade  trees  In  front  of  his  prop- 
erty, and  that  such  damages  cannot  be 
adequately  measured  in  an  action  at  law; 
that  plaintiff  verily  believes  that  the  action 
of  the  defendant  Olson  is  through  the  order 
and  direction  of  the  trustees  of  defendant 
acting  Individually,  and  that  the  same  is 
arbitrary,  oppressive,  and  without  authority 
of  law;  that  said  street  was  opened  of  the 
width  of  3  rods  upwards  of  50  years  ago, 
and  has  since  been  traveled  such  width,  and 
that  the  distance  between  the  true  curb  lines 
on  either  side  of  said  street  Is  upwards  of 
50  feet,  which  Is  entirely  adequate  for  pub- 
lic team  travel;  that,  unless  enjoined,  plain- 
tiff fears  defendants  will  carry  out  their 
threatened  acts,  and  build  said  curb  on  his 
land,  and  thereby  appropriate  the  strip  afore- 
said. The  prayer  Is  that  the  defendant  vil- 
lage and  Its  officers  and  the  )lefendant  Olson 
and  bis  servants  be  restrained  and  enjoin- 
ed from  building  a  street  curb  and  gutter 
further  north  on  said  street  than  the  line  of 
the  present  stone  curb  on  the  north  side  of 
said  street,  or  from  Interferhig  in  any  way 
with  the  strip  of  land  5  feet  wide  lying  in 
front  of  and  Immediately  abutting  plain- 
tiff's premises,  and  for  general  relief.  The 
defendants  demurred  to  the  complaint  for 
want  of  facts  sufficient  to  constitute  a  cause 
of  action,  which  demurrer  was  sustained. 

C.  W.  Graves,  for  appellant.  Lawrence 
Grimsrud  and  W.  F.  &  A.  C.  Wolfe,  for  re- 
spondents. 

KERWIN,  J.  (after  stating  the  facts  as 
above).  The  substance  of  the  complaint  Is 
set  out  In  the  statement  of  facts.  The  prin- 
cipal charge  Is  that  defendants  are  about  to 
Interfere  with  a  part  of  a  public  street  and 
tbat  the  village  board  is  acting  under  a  pe- 
tition In  so  doing.  There  are  no  allegations 
In  the  complaint  going  to  show  that  all  the 
steps  required  by  law  were  not  taken  in  the 
proceeding  to  make  the  Improvement    The 


village  having  the  right  to  Improve  the  street, 
and  it  proceeding  on  petition  to  do  so,  it 
must  be  presumed  that  it  Is  acting  lawfully 
in  the  absence  of  any  allegation  to  the  con- 
trary. Section  893,  suM.  11,  St  1898,  au- 
thorizes villages  "to  lay  out,  open,  change, 
widen  or  extend  roads,  streets,  lanes,  alleys, 

•  •  •  and  to  grade,  improve,  repair  or  dis- 
continue  the   same   or    any   part   thereof; 

•  •  •  to  make,  alter,  widen  or  otherwise 
Improve,  keep  in  repair,  vacate  or  discon- 
tinue sidewalks  and  crosswalks  as  provided 
In  this  act."  And  section  905  provides  the 
mode  of  procedure.  There  Is  nothing  in  the 
complamt  showing  or  tending  to  show  that 
these  statutory  provisions  have  been  violated, 
or  that  the  defendants  are  not  proceeding  in 
accordance  with  them.  The  acts  to  be  done 
under  the  contract  with  defendant  Olson  are 
to  be  done  within  the  limits  of  the  street 
The  general  power  conferred  by  law  on  the 
village  Includes  the  power  to  determine  the 
width  of  the  traveled  track.  Elliott  on  Roads 
&  Streets,  451;  State  v.  Morrlstown.  33  N.  J. 
Law,  67;  Benson  v.  Waukesha,  74  Wis.  31, 41 
N.  W.  1017;  McCullough  v.  Campbellsport 
123  Wis.  334,  101  N.  W.  709;  Damkoehler  v. 
Milwaukee,  124  Wis.  144,  101  N.  W.  706. 

Stress  is  placed  upon  the  allegations  of  the 
complaint  to  the  effect  that  the  village  board 
"Intend  to,  and  threaten  to,  at  once  after  the 
completion  of  said  curb  and  gutter,  direct  and 
compel  plaintiff  to  buUd  a  6-foot  cement  side- 
walk north  of  said  curb  and  compel  him  to 
place  the  same  inside  of,  and  north  of,  the 
present  and  true  street  line  and  upon  his 
residence  lot,  and  that  in  order  to  so  build 
the  same  plaintiff  will  be  deprived,  without 
due  process  of  law  and  without  compensa- 
tion, of  a  strip  of  land  6  feet  wide  and  about 
100  feet  long."  The  plain  inference  from  the 
pleading  is  that  if  the  plaintiff  is  compelled 
to  build  the  walk  It  will  be  under  legal  pro- 
cedure regularly  instituted  and  carried  on. 
He  cannot  be  compelled  to  build  otherwise, 
and  there  is  no  allegation  that  defendants  In- 
tend to  forcibly  or  otherwise  bvild  or  enter 
upon  his  premises  against  his  will.  The  al- 
legation to  the  effect  that  In  order  to  build, 
the  plaintiff  will  be  deprived  of  his  property 
without  compensation  and  without  due  pro- 
cess of  law,  is  without  force,  because  It  Is 
plain' from  the  facts  pleaded  that  plaintiff 
cannot  be  compelled  to  build  and  submit  to  a 
taking  of  his  property  without  compensation, 
and  that  defendants  do  not  intend  forcibly 
to  Interfere. 

But  it  seems  wholly  unnecessary  to  discuss 
the  question.  The  complaint  Is  barren  of 
facts  sufficient  to  entitle  the  plaintiff  to  eq- 
uitable relief^  and  therefore  the  demurrer  was 
properly  sustained. 

The  order  appealed  from  is  affirmed, 

WINSLOW,  C.  J.,  took  no  part 


Digitized  by  LjOOQIC 


730 


122  NORTHWESTERN  REPORTER. 


(WlB. 


PIPER  et  al.  t.  CITY  OF  MADISON. 
(Supreme  Court  of  Wisconain.     Oct  6,  1909.) 

1.  MUNIOIPAL  COKPOBATIONS  (J  747*)— WATEB 
DEPABTUENT— NeGLIOENCB     or     £iMFI.OT£S— 

Respondeat  Supesiob. 

Where  a  city  maintained  waterworks  for 
public  and  private  use  under  tlie  control  of  a 
board  of  commissioners,  who  employed  a  super- 
intendent and  such  agents  and  servants  as  were 
required,  the  revenue  being  applied  to  the  cost 
of  construction,  operation  and  maintenance,  the 
city  in  so  doing  acted  in  a  private  and  not  in  a 
governmental  capacity,  and  was  therefore  liable 
for  injuries  to  a  citizen  by  the  negligence  of  its 
servants  in  charge  of  the  waterworks  resulting 
in  the  flooding  of  his  premises. 

[JEid.  Note.— For  other  cases,  see  Municipal 
Corporations,  Dec  Dig.  {  747.*] 

2.  MUNICrPAL    COKPOBATIONS    (J    747*)— Wa- 
TBBWOBKB— NEGUGENCB  OF  SERVANTS— FlKB 

Pbotection. 

Where  a  city  operated  a  system  of  water- 
works for  public  and  private  use,  the  fact  that 
it  used  the  works  for  fire  protection  did  not  re- 
lieve it  from  negligent  acts  of  Its  servants  or 
agents  in  the  conduct  of  the  business,  except 
for  such  acts  as  were  performed  by  them  in  the 
actual  work  incident  to  the  extinguishing  of 
fires. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  H  1670-1577;  Dec 
Dig.  f  -47.»1 

Appeal  from  Circuit  Court,  Dane  County; 
E.  Ray  Stevens,  Judge. 

Action  by  Charles  Piper  and  others  against 
the  City  of  Madison.  Judgment  for  defend- 
ant and  plaintiffs  appeal.  Reversed  am) 
remanded. 

The  city  of  Madison,  being  authorized  to 
maintain  and  operate  a  system  of  water- 
works, built  its  system  in  1885.  About 
1890  a  water  tower  was  constructed  on 
Washington  avenue.  It  Is  claimed  that  this 
tower  was  chiefly  constructed  to  equalize  the 
pressure.  As  originally  planned,  the  connec- 
tion between  the  pipes  of  the  waterworks 
system  and  the  tank  in  the  water  tower  was 
controlled  by  a  valve  located  Inside  the  base 
of  the  tower.  In  time  the  dampness  and  the 
dripping  water  rusted  the  bearings,  and  It 
became  impossible  to  operate  the  valve.  At- 
tempts to  remedy  the  matter  were  unsuc- 
cessful, and  In  1891,  upon  the  advice  of  an 
expert  hydraulic  engineer,  the  valve  at  the 
base  of  the  tower  was  discontinued,  and  a 
new  valve  to  control  the  water  supply  to  the 
tank  in  the  tower  was  placed  at  the  Junction 
of  the  supply  pipe  for  the  tank  and  the  main 
pipe  line  at  the  Junction  of  Pinckney  street 
and  Washington  avenue  about  a  block  from 
the  tower.  Plaintiffs  conducted  a  grocery 
on  Washington  avenue  in  a  building  located 
between  the  valve  at  the  Junction  of  Washing- 
ton avenue  and  Pinckney  street  and  the  water 
tower,  and  stored  part  of  their  stock  of  gro- 
ceries in  the  basement  of  this  building.  About 
7:30  in  the  morning  of  January  17, 1907,  plain- 
tiffs observed  that  water  was  flowing  into  the 
basement,  presumably  from  a  broken  water 
pipe.    The  ofllclals  of  the  waterworks  depart- 


ment were  notified,  and  as  rapidly  as  possible 
employte  cut  off  the  supply  of  water  from  the 
pipes  In  that  section  of  the  city.  The  valve  at 
the  Junction  of  Pinckney  street  and  Washing- 
ton avenue,  controlling  the  supply  of  water 
to  the  tank  In  the  water  tower,  was  also 
closed.  Tbls  work  took  more  tlun  two 
hours,  and  did  not  stop  the  flow  of  water  in- 
to plaintiffs'  basement  A  small  drain  pipe 
from  the  tower, tank  was  then  opened  and 
with  the  disappearance  of  the  wat»  from 
the  tank  the  flow  of  water  Into  plaintiffs'  base- 
ment ceased.  Considerable  damage  was  done 
to  plaintiffs'  stock  of  grrocerles  by  the  water, 
and  they  bring  tills  action  to  recover  for  the 
damage  suffered.  Subsequent  investigation 
showed  that  the  10-lnch  pipe  supplying  the 
tank  in  the  water  tower  had  broken.  On 
the  trial  in  the  circuit  court  of  the  action  for 
the  recovery  of  the  damages  suffered,  the 
Jury  were  instructed  as  to  the  law  of  neg- 
ligence, and  were  informed  that  if  city  au- 
thorities in  cliarge  of  the  water  department 
acted  upon  the  advice  of  men  skilled  in  the 
work  in  question,  and  if  the  city  officials  in 
good  faith  and  in  reliance  upon  the  advice 
of  such  experts  In  waterworks  construction 
had  constructed  a  waterworks  system  ac- 
cording to  their  best  Judgment,  tlien  defects 
in  the  construction  became  mere  errors  in 
Judgment,  and  the  city  would  be  relieved 
from  liability  for  any  damages  resulting 
therefrom.  Under  the  instructions  of  the 
court,  the  Jury  found  that  the  defendant  was 
not  guilty  of  any  want  of  ordinary  care  In 
failing  to  keep  the  valve  in  the  base  of  the 
water  tower  In  such  condition  that  It  could 
be  used  to  shut  off  the  water  from  the  tower. 
The  Jury  also  found  the  amount  of  the  dam- 
ages sustained  by  the  plaintiffs.  The  court 
awarded  Judgment  in  favor  of  the  defend- 
ant for  its  costs.  This  is  an  appeal  from 
such  Judgment 

Gilbert  Jackson  &  Ela,  for  appellants. 
John  A.  Aylward,  City  Atty.  (Aylward,  Da- 
vies  &  Olbrich,  of  counsel),  for  respondent 

SIEBECKER,  J.  (after  stating  the  facts 
as  above).  Under  legislative  authority  the 
city  has  voluntarily  constructed  a  system 
of  waterworks  for  public  and  private  use. 
The  revenue  derived  from  sales  of  water 
for  private  use  is  applied  to  the  cost  of  con- 
struction, operation,  and  maintenance  of 
the  waterworks.  The  business  is  in  charge 
of  a  board  of  commissioners,  who  employ 
a  superintendent  and  such  other  agents  and 
servants  as  are  required  for  the  conduct  of 
this  part  of  the  mtwiclpal  business.  The 
plaintUTS  bring  this  action  to  recover  dam- 
ages to  their  property,  which  they  allege 
were  caused  by  the  negligence  of  the  city 
through  its  agents  and  servants,  emiiloyed 
by  the  city  in  conducting  the  business  of 
the  waterworks  department     Under  the  al- 


•For  other  cum  see  same  tople  and  section  NUMBER  In  D«c.  ft  Am.  Digs.  1907  to  date.  4b  Reportsr  Indent 


Digitized  by 


Google 


Wli.) 


VETTER  V,  SOUTHERN  WISCONSIN  RY,  CO. 


731 


leged  facts  tiie  employes  In  charge  of  this 
miiniclpai  department  represent  the  city  and 
act  for  it.  Tbe  errors  assigned  Involve  an 
Inqnlry  as  to  the  extent  to  which  the  dty  1> 
responsible  for  the  acta  of  its  agents  ana 
servants  In  the  conduct  of  this  municipal 
enterprise. 

In  his  treatise  on  the  Law  of  Municipal 
Corporations,  Mr.  Dillon  states:  "Municipal 
corporations  *  *  *  possess  a  double 
character— the  one  sovemmental,  legislative, 
or  public;  the  other,  in  a  sense,  proprietary 
or  private.  *  ••  In  its  governmental 
or  public  character  the  corporation  Is  made, 
by  the  state,  one  of  Itt  instruments,  or  the 
local  depository  of  certain  limited  and  pre- 
scribed political  powers,  to  be  exercised  for 
the  public  good  on  behalf  of  the  state  rather 
than  for  Itself.  •  •  •  But  in  Its  propri- 
etary or  private  character  the  theory  is 
that  the  powers  are  supposed  not  to  be  con- 
ferred, primarily  or  chiefly,  from  considera- 
tions connected  with  the  government  of  the 
state  at  large,  but  for  the  private  advantage 
of  the  compact  community  which  Is  incorpo- 
rated aa  a  distinct  legal  personality  or  cor- 
IKtrate  individual;  and  as  to  such  powers, 
and  to  property  acquired  thereunder,  and 
contracts  made  with  reference  thereto,  the 
corporation  Is  tor  be  regarded  quo  ad  hoc  as 
a  private  corporation,  or  at  least  not  public 
in  the  sense  that  the  power  of  the  Legisla- 
ture over  it  or  the  rights  represented  by  it 
is  omnipotent."  Dillon's  Municipal  Corpora- 
tions. {  6ti;  Hayes  v.  Oshkosh,  33  Wis.  314, 
14  Am.  Rep.  760 ;  Mulcalrns  v.  JanesvUle,  67 
Wis.  24.  29  N.  W.  565;  Folk  v.  MUwaukee, 
108  Wis.  350.  84  N.  W.  420. 

The  function  of  a  city  in  selling  and  dis- 
tribnting  water  to  its  dtizens  Is  of  a  private 
nature^  voluntarily  assumed  by  it  for  the 
advantage  of  tbe  people  of  the  city.  Re- 
sponsibility for  the  acts  of  persons  repre- 
senting it  in  such  a  business  falls  upon  the 
city  through  the  relation  of  master  and  serv- 
ant, and  the  maxim  of  respondeat  superior 
applies.  Whenever  this  relation  Is  establish- 
ed, the  city  is  liable  in  damages  for  the  neg- 
ligence of  its  agents  and  servants  in  the  con- 
duct of  such  business.  The  following  adju- 
dications uphold  this  liability  upon  the 
ground  that  the  city  in  conducting  such  a 
bnslneM  is  acting  In  its  proprietary  capaci- 
ty: L^nch  T.  Springfield,  174  Mass.  430,  54 
N.  B.  871;  Hourigan  v.  Norwich,  77  Conn. 
358,  59  AU.  487;  City  of  Chicago  v.  Selz, 
Schwab  &  Co.,  202  111.  545,  67  N.  B.  886; 
Rullmaster  v.  St  Joseph,  70  Mo.  App.  60; 
City  of  PhUadelphia  v.  Gilmartin,  71  Pa. 
140. 

The  fiict  that  the  city  may  also  use  the 
waterworks  for  protection  against  fire  does 
D^t  relieve  it  from  liability  for  negligent  acts 
of  its  servants  or  agents  In  tbe  conduct  of 
this  business  except  for  such  acts  as  are 


performed  by  them  in  the  actual  work  inci- 
dent to  extinguishing  fires.  City  of  Chica- 
go V.  Selz,  Schwab  &  Co.,  supra. 

In  submitting  this  case  to  the  Jury  the 
court  held  that  in  conducting  the  business 
of  distributing  and  selling  water  the  city 
is  exerclslillg  a  public  function,  and  its  offi- 
cers and  agents  In  conducting  the  business 
are  in  the  exercise  of  quasi  Judicial  authori- 
ty, and.  If  they  exercise  their  Judgment  and 
discretion  in  good  faith,  the  city  is  not  li- 
able for  damages  resulting  from  their  negli- 
gent acts.  Tills  was  error  because  the  city 
in  this  case  was  acting  in  its  private  or 
proprietary  capacity,  and  it  is  therefore  li- 
able for  the  negligent  acts  of  its  servants  or 
agents.    A  new  trial  must  be  awarded. 

Judgment  reversed,  and  the  cause  remand- 
ed to  the  trial  court  for  a  new  trial. 

WINSLOW,  C.  J.,  took  no  part 


VETTEE  T.    SOUTHERN  WISCONSIN 
RT.  CO. 

(Supreme  Court  of  Wisconsin.    Oct  6,  IflOO.) 

1.  Street  Railboads  (J  99*)  —  Injtjbies  to 
Pebsons  on  Tracks— Contbibutobt  Neq- 

UOENCB. 

Where  decedent  drove  his  team  onto  a 
street  railway  track  In  front  of  an  approaching 
car,  or  went  so  near  that  the  car  collided  with 
hia  wagon,  without  looking  and  listening  for 
Che  approach  of  the  car  from  the  rear,  when 
Ue  could  by  the  exercise  of  ordinary  care  have 
seen  it  in  time  to  have  avoided  the  accident, 
he  was  guilty  of  contributory  negligence  pre- 
cluding recovery  for  his  resultant  death. 

[Ed.  Note.— For  other  cases,  see  Street  Rail- 
roads, Cent  Dig.  H  20ft-216;   Dec.  Dig.  {  09.»] 

2.  NBaLIOENCK  (i  136*)— CORTBIBXrrOBT  NeQ- 

LioBNCB— Question  of  Law. 

While  contributory  negligence  may  be  a 
mixed  question  of  law  and  fact,  where  the  facta 
are  found  or  are  undisputed  showing  contribu- 
tory negligence,  and  there  is  no  room  for  con- 
flicting inferences  upon  tbe  established  facts,  it 
is  a  question  of  law. 

(Ed.   Note.— For  other  cases,  see  Negligence, 
Cent  Dig.  H  833-846;    Dec.  Dig.  {  136.*] 

3.  TBIAL    (I    862*)— VeBDICT— IROONSISTENT 

Findings- Chanoiho  Answeb  to  Ques- 
tion. 

Where  tbe  Jury  by  answers  to  certain  ques- 
tions found  facts  showing  decedent's  contribu- 
tory negligence,  the  court  bad  power  to  change 
their  answer  to  another  question,  finding  dece- 
dent not  guilty  of  want  of  ordinary  care  con- 
tributing to  the  injury,  so  as  to  correspond  with 
the  facts  found. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  {  866 ;   Dec.  Dig.  {  362.*] 

4.  Tbial  (i  350*)  —  Vebdict  —  Speciai,  Find- 
INQS— Refusal  to  Submit  Question. 

Where  it  was  undisputed  that  decedent 
when  struck  by  the  street  car  was  within  the 
zone  of  danger  which  it  was  his  duty  not  to 
enter  before  looking  and  listening,  it  was  not  er- 
ror to  refuse  to  submit  the  question  whether  he, 
just  before  the  accident  was  intending  to  drive 
upon  or  across  tbe  street  car  track,  and  if  the 
question  be  answered  "Yes,"  whether  decedent, 
before  nearing  or  entering  upon  the  track,  look- 


•For  other  cases  see  wme  topic  and  section  NUMBER  In  Dee.  *  Am.  Digs.  1907  to  data,  *  Reporter  Indexes 


Digitized  by  LjOOQ  l€ 


732 


122  NORTHWESTBEN  BEPQIftEB. 


(Wis. 


e<l  and  listened  for  the  approach  of  the  car  from 
the  rear. 

[Ed.  Note.— For  other  cases,  see  Trial,  Oent. 
Dig.  {{  828-833 ;  Dec  Dig.  {  350.»] 

Appeal  from  Circuit  Court,  Dane  County; 
Jamea  O'Neill,  Judge. 

Action  by  Charles  Vetter,  adAinlstrator, 
against  the  Southern  Wisconsin  Railway 
Company.  Judgment  of  dismissal,  and  plain- 
tiff appeals.    Affirmed. 

This  action  was  brought  by  the  admin- 
istrator to  recover  damages  for  the  alleged 
negligence  of  the  defendant  causing  the  death 
of  plaintiff's  intestate.  The  negligence  al- 
leged is  in  the  careless  operation  of  defend- 
ant's car,  and  the  failure  to  warn  the  de- 
ceased of  the  approach  of  said  car.  The  an- 
swer denies  generally  the  allegations  of  the 
complaint,  and  alleges  contributory  negli- 
gence of  plaintlfTs  intestate.  The  case  was 
submitted  to  the  jury,  and  the  following 
verdict  returned:  "(1)  At  what  rate  of  speed 
was  defendant's  car  moving  at  the  time  of 
the  accident?  Answer:  8  miles  per  hour. 
(2)  At  what  rate  of  speed  was  the  deceased 
driving  his  team  at  the  time  of  the  acci- 
dent? Answer:  3%  miles  per  hour.  (3)  Aft- 
er turning  from  Emerald  street  into  Park 
street,  and  while  approaching  the  place  of 
accident,  was  the  bell  or  gong  of  the  de- 
fendant's car  sounded?  Answer:  Yes.  (4) 
Did  the  motorman  try  to  stop  the  car  as 
soon  as  it  was  apparent  that  there  might 
be  a  collision?  Answer:  Yes.  (5)  Was  the 
motorman  guilty  of  any  want  of  ordinary 
care  in  the  operation  of  his  car  at  the  time 
of  the  accident?  Ans\»er:  Yes.  (6)  If  you 
answer  the  last  question  'Yes,'  then  was 
such  want  of  ordinary  care  the  proximate 
cause  of  the  death  of  the  deceased?  An- 
swer: Yes.  (7)  Did  the  deceased,  before  his 
team  entered  upon  the  track  or  went  so 
near  it  that  the  car  could  not  pass  him 
without  bitting  his  wagon,  look  and  listen 
for  the  approach  of  a  car  from  the  rear? 
Answer:  No.  (8)  Could  the  deceased  in  the 
exercise  of  ordinary  care  and  prudence  have 
seen  the  approaching  car  in  time  to  have 
avoided  the  accident?  Answer:  Yes.  (9) 
Was  the  deceased  guilty  of  any  want  of 
ordinary  care  which  contributed  to  the  ac- 
cident? Answer:  No.  (10)  In  case  the  court 
should  be  of  the  opinion  that  the  plaintiff 
is  entitled  to  recover,  at  what  sum  do  you 
assess  his  damages?  Answer:  $6,000.00."  Be- 
fore the  special  verdict  was  submitted  to 
the  Jury  plaintiff  objected  to  questions  Nos. 
1,  2,  4,  and  7,  for  the  reason  that  they  did 
not  call  for  a  response  to  any  issue  raised 
by  the  pleadings,  but  called  for  a  finding 
of  an  evidentiary  character,  and  also  re- 
quested the  court  to  submit  a  question,  to 
be  numbered  S%,  as  follows:  "If  your  an- 
swer to  the  third  question  Is  'Yes,'  then  what 
distance  was  the  motorman  from  deceased's 


vehicle  at  the  time  the  bell  or  gong  was 
sounded?"  And  also  requested  that  the 
court  substitute  for  question  No.  7  two  ques- 
tions as  follows:  "No.  7.  Was  deceased  just 
before  the  accident  intending  to  drive  upon 
or  across  the  track  of  the  defendant?  No. 
7%.  If  you  answer  the  last  question  'Yes,' 
then  did  deceased,  before  nearing  or  enter- 
ing upon  said  track,  look  and  listen  for 
the  approach  of  a  car  from  the  rear?" — 
which  requests  were  denied  and  due  excep- 
tions taken.  The  usual  motions  were  made 
for  Judgment  on  the  verdict  .and  to  change 
the  answers  to  questions  in  the  verdict.  The 
court  changed  the  answer  "Yes"  to  question 
No.  5  to  "No,"  and  changed  the  answer  "No" 
to  the  ninth  question  to  "Yes,"  and  granted 
the  defendant's  motion  for  judgment  on  the 
verdict  dismissing  the  complaint  Plaintitr 
moved  for  a  new  trial,  which  was  denied, 
and  judgment  was  rendered  for  the  defend- 
ant dismissing  the  complaint,  from  which 
this  appeal  was  taken. 

Miner  &  Elver,  for  appellant  Jones  & 
Scbubrlng,  for  respondent. 

KERWIN,  J.  (after  stating  the  facts  as 
above).  The  accident  complained  of  occurred 
on  South  Park  street  in  the  city  of  Madison, 
between  Erin  street  and  the  dty  limits. 
South  Park  street  is  a  macadamized  street 
with  cement  curbs,  practically  level  and  run- 
ning in  a  northerly  and  southerly  direction. 
It  is  36  feet  wide  from  curb  to  curb  with  a 
street  car  track  in  the  center,  and  a  space  of 
151^  feet  between  the  rail  and  the  curb. 
Commencing  at  a  point  about  75  feet  from 
the  city  limits  the  track  of  the  defendant 
begins  to  curve  to  make  the  turn  on  Oregon 
street,  somewhat  njirrowing  the  space  be- 
tween the  rail  and  the  east  curb  of  the 
street,  so  that  at  the  city  limits  this  space  is 
only  about  9  feet  8  inches  wide.  Erin  and 
Emerald  streets  meet  South  Park  street  at 
right  angles.  The  block  between  Erin  and 
Emerald  streets  is  about  316  feet  long,  and 
the  block  between  Erin  and  the  dty  limits  Is 
162  feet.  Defendant's  street  car  track  runs 
on  Emerald  street,  turns  on  South  Park 
street,  and  runs  southerly  on  Oregon  road. 
The  greater  part  of  the  blodc  between  Erin 
and  Emerald  streets  is  vacant  and  practical- 
ly unobstructed,  so  that  one  driving  along 
South  Park  street  between  Emerald  and  E)rln 
streets  can  look  for  some  distance  up  Emer- 
ald street.  On  the  day  in  question,  about  3 
o'clock,  the  deceased  was  driving  a  team  of 
horses  attached  to  a  broad-tired  lumber  wag- 
on wltb  a  box  thereon  south  along  the  east 
side  of  the  street  between  E>merald  street 
and  the  dty  limits,  sitting  on  a  high  seat, 
with  the  reins  around  his  body  over  bis 
shoulder.  The  street  between  him  and  the 
city  limits,  as  well  as  between  him  and 
Emerald   street,   was   unobstructed.     While 


•For  otiier  caaw  m«  hud*  topic  and  McUon  NUMBER  In  D«o.  *  Am.  Dlga.  1M7  to  dat*,  *  Reporter  Indazea 


Digitized  by  LjOOQIC 


wis.) 


RUTH  ▼.  STATE. 


733 


tbos  drlTlng  his  team,  one  of  the  defendant's 
cars  turned  from  Emerald  street  onto  South 
Park  street.  There  is  evidence  tending  to 
show  that  when  the  car  was  within  less  than 
30  feet  of  deceased  he  drove  onto  or  close  to 
the  track,  and  directly  out  again,  but  not 
soon  enough  to  prevent  a  collision  between 
the  hind  wheel  of  his  wagon  and  defend- 
ant's car,  which  collision  produced  the  In- 
Jury  complained  of. 

The  jury  found  by  their  answers  to  the 
seventh  and  eighth  questions  that  before  de- 
ceased's team  entered  upon  the  track,  or 
went  so  near  that  the  car  could  not  pass 
without  striking  his  wagon,  he  did  not  look 
and  listen  for  the  approach  of  a  car  from 
the  rear,  and  also  that  he  could,  by  the  ex- 
ercise of  ordinary  care  and  prudence,  have 
seen  the  approaching  car  In  time  to  have 
avoided  the  accident  These  findings  are 
fully  supported  by  the  evidence,  and  entitle 
the  defendant  to  Judgment  on  the  verdict, 
unless  their  effect  be  nullified  by  the  ninth 
finding  of  the  special  verdict,  which  finds 
that  the  deceased  was  not  guilty  of  any 
want  of  ordinary  care  which  contributed  to 
the  accident.  Dummer  v.  Milwaukee  E.  R.  & 
L.  Co.,  108  Wis.  589,  84  N.  W.  853 ;  Teach  v. 
Milwaukee  E.  R.  &  L.  Co.,  108  Wis.  593, 
84  N.  W.  823,  53  li.  R.  A.  618;  Morice  v. 
Milwaukee  E.  R.  &  L.  Co.,  129  Wis.  529,  109 
N.  W.  567;  Cawley  v.  La  Crosse  C.  R.  Co., 
101  Wis.  145,  77  N.  W.  179;  Hogan  v.  Win- 
nebago T.  Co.,  121  Wis.  123,  98  N.  W.  928; 
Ilanlon  v.  Milwaukee  E.  R.  &  L.  Co.,  118 
Wis.  210,  95  N.  W.  100;  Stafford  v.  Chip- 
pewa V.  E.  R.  Co.,  110  Wis.  331,  85  N.  W. 
1036;  McClellan  v.  Chippewa  V.  E.  R.  Co., 
110  Wis.  326,  ffi  N.  W.  1018. 

The  court  changed  the  answer  to  the  ninth 
question  from  "No"  to  "Yes,"  and  this  ruling 
is  complained  of.  The  findings  of  the  Jury 
to  the  seventh  and  eighth  questions  found 
the  facts  wtilch  established  the  contributory 
negligence  of  the  plaintiff.  It  is  true  that 
contributory  negligence  Is  or  may  be  a  mixed 
question  of  law  and  fact,  but  where  the  facts 
are  found  or  are  undisputed  showing  con- 
tributory negligence,  and  there  is  no  room 
for  conflicting  Inferences  upon  the  estat>- 
lished  facts,  then  the  conclusion  of  law  nec- 
essarily follows.  The  court  was  therefore 
clearly  right  in  changing  the  answer  to  the 
ninth  question  to  correspond  with  the  facts 
found  by  the  Jury  in  the  seventh  and  eighth 
questions.  Wanzer  v.  Chippewa  V.  E  R.  Co., 
108  Wis.  319,  84  N.  W.  423 ;  St.  Paul  B.  Co. 
V.  Kemp,  125  Wis.  138,  103  N.  W.  259 ;  Hogan 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  59  Wis.  139,  17 
N.  W.  632 ;  Martin  v.  Bishop  et  al.,  59  Wis. 
417,  18  N.  W.  387;  Flck  v.  Chicago  &  N.  W. 
By.  Co.,  68  Wis.  469,  32  N.  W.  527,  60  Am. 
Kcp.  878;  Rowley  v.  Chicago,  M.  &  St.  P. 
B.  Co.,  135  Wis.  208,  115  N.  W.  865 ;  Hogan  v. 
Winnebago  T.  Co.,  121  Wis.  123,  98  N.  W. 
928;   Rahr  v.  Manchester  F.  A.  Co.,  93  Wis, 


356,  67  N.  W.  725;  Krause  v.  Busadcer,  105 
Wis.  350,  81  N.  W.  406. 

Error  is  assigned  because  of  refusal  to  sub- 
mit the  following  question  in  lieu  of  ques- 
tion No.  7  submitted  by  the  court:  "Was 
the  deceased  just  before  the  accident  intend- 
ing to  drive  upon  or  across  the  track  of  the 
defendant?  If  you  answer  such  question 
'Yes,'  then  did  the  deceased,  before  nearing 
or  entering  upon  the  track,  look  and  listen 
for  the  approach  of  the  car  from  the  rear?" 
We  think  there  was  no  error  in  the  refusal  to 
submit  this  question.  The  fact  that  the  de- 
ceased was  within  the  zone  of  danger  when 
struck  was  undisputed,  and  he  was  bound 
to  look  and  listen  before  entering  the  place 
of  danger,  and  it  was  entirely  unnecessary 
to  submit  to  the  jury  what  the  deceased  was 
Intending  to  do  Just  before  the  accident 

Some  criticism  is  made  upon  the  instruc- 
tions, and  failure  to  Instruct,  respecting  con- 
tributory negligence,  but  we  find  no  prejudi- 
cial error  in  this  regard.  The  facts  consti- 
tuting contributory  negligence  were  fairly 
submitted  to  the  Jury,  and  found  against  the 
plaintiff.  Therefore  the  defendant  was  en- 
titled to  Judgment 

It  follows  that  the  Judgment  must  be  af- 
firmed. 

The  Judgment  of  the  court  below  is  af- 
firmed. 

WINSW)W,  C.  J.,  took  no  part 


RUTH  V.  STATE. 
(Supreme  Court  of  Wisconsin.     Oct  5,  1909.) 

1.  iNnrCTMKNT   AND   INFORMATION   (§   132*)    — 

Election  Between  Counts— Discretion  or 

Court. 

The  matter  of  requiring  prosecuting  officers 
in  criminal  cases  to  elect  on  what  counts  of  an 
information  they  will  prosecute  the  cause  is  very 
much  in  the  discretion  of  the  trial  court. 

[Ed.  Note.— For  other  cases,  see  Indictment 
and  Information,  Cent  Dig.  |§  449-453;  Dec. 
Dig.  i  132.*] 

2.  Indictment  and  Information  (|  127*)  — 
Joinder  of  Counts. 

Under  Laws  1903,  p.  363,  c.  234,  subc.  2, 
(  17,  making  it  an  offense  for  any  banker,  of- 
ficer, or  employ^  of  any  bank  to  willfully  and 
knowingly  subscribe  to  or  make  any  false  state- 
ment or  false  entry  in  the  books  of  any  l>ank 
or  to  make  any  false  report  or  statement  of 
such  bank,  counts  charging  a  bank  cashier  (1) 
with  making  false  entries  in  the  certificate  reg- 
ister of  the  l>ank,  (2)  with  making  false  entries 
in  a  ledger  of  the  amount  due  the  bank  from 
another  bank,  and  (3)  with  making  false  en- 
tries in  the  report  of  tlie  bank  to  the  state  com- 
missioner of  banidng,  as  to  the  amount  due 
from  banks,  and  the  amount  due  on  time  cer- 
tificates of  deposit,  were  properly  joined  in  one 
information,  such  matters  ail  arising  out  of 
acts  of  accused  in  his  administration  of  the 
bank's  business,  and  hence  the  court  properly 
refused  to  require  the  prosecuting  attorney  to 
elect  on  which  count  he  would  prosecute. 

[EJd.  Note.— For  other  cases,  see  Indictment 
and  Information,  Cent  Dig.  §§  401,  402;  Dec. 
Dig.  i  127.»] 


-•For  other  coses  see  same  topic  and  section  NUMBER  in  Dec.  ft  Am.  Digs.  1907  to  date,  41  Reporte?  Indexet 


Digitized  by  VjOOQ  l€ 


734 


122  XORTUWESTSJltN  KEPORTER. 


(Wis. 


3.  Obuunai,  Law  (i  40O*>— Best  and  Skcon- 

DABT    ETIDKNCK— BOOKS    OF   AOOOUNT. 

In  cases  involTlng  the  ezamination  of  long 
Rcoonnts,  it  is  proper  to  permit  expert  account- 
ants to  examine  the  account  and  to  give  in  sum- 
mary form  the  results  thereof,  though  the  op- 
posing party  must  be  afforded  time  and  oppor- 
tunity to  test  the  correctness  of  the  evidence, 
and  for  this  purpose  have  access  to  the  books 
and  the  use  of  them  on  cross-examination. 

[Ed.    Note.— For   other   cases,    see    Criminal 
Law,  Dec.  Dig.  i  400.*] 

4.  Crimikai,  Law  ({  1189*)— Appeal— Habk- 
LESS  Ehbob. 

That  in  a  criminal  trial  expert  accountants 
were  permitted  to  testify  that  items  of  book  en- 
tries were  shown  to  be  incorrect  by  summary 
statements  from  the  books  without  introducing 
in  evidence  all  of  the  books  and  the  entries  on 
which  sudi  statements  were  based  did  not  preju- 
dice accused,  where  all  of  the  books  were  brought 
into  court  and  identified,  and  were  accessible  to 
accused  and  his  attorney. 

[Ed.  Note. — For  other  cases,  see  Criminal  Law, 
Cent.  Dig.  K  3137-3143  ;  Dec.  Dig.  {  1169.*] 

5.  Cbiminal  Law  (J  lie9*)— Appeai/— Habm- 

LE88  EBBOB. 

In  a  trial  for  making  a  false  report  of  a 
bank  of  which  accused  was  cashier  as  to  the 
amount  due  from  other  banks,  that  evidence  of 
experts  as  to  the  condition  of  the  books  included 
a  statement  that  the  books  of  another  bank 
showed  that  accused  falsified  his  report  did  not 
prejudice  accused,  though  there  was  no  evidence 
of  the  contents  of  the  books  of  such  other  bank 
or  of  their  correctness :  it  appearing  conclusive- 
ly from  the  record,  aside  from  the  experts'  evi- 
dence, that  accused  knowingly  made  the  false  re- 
port as  charged  in  the  count  of  which  he  was 
found  guilty. 

[Ed.  Note. — For  other  cases,  see  Criminal  Law, 
Cent.  Dig.  <g  3137-3143;    Dec.  Dig.  {  1169.*] 

6.  Banks  and  Banking  (8  62*)— Officebs— 
False  Repobt— Prosecution. 

Where  an  information  charged  accused  witll 
making  false  entries  in  the  report  of  the  bank 
of  which  he  was  cashier  as  to  the  amount  due 
from  banks  and  the  amount  due  on  time  certifi- 
cates of  deposit,  a  falsification  of  the  report  as 
to  one  item  constituted  a  violation  of  law  under 
the  charge  independently  of  the  other  item. 

[Ed.   Note.— For  other  cases,  see  Banks  and 
Banking,  Cent.  Dig.  g  122 ;    Dec.  Dig.  g  G2.*J 

7.  Cbiminai,  Law  (|  '878*)- Vebdict. 

An  information  charged  a  bank  cashier 
with  (1)  making  false  entries  in  the  certificate 
register  of  the  bank,  and  (3)  wjth  making  false 
entries  in  the  report  of  the  bank  as  to  the 
amount  due  from  banks,  and  the  amount  due  on 
time  certificates  of  deposit,  ffrld.  that  the  jury 
having  found  accused  not  guilty  under  the  first 
count,  and  the  charge  in  the  third  count  as  to 
the  certificates  not  being  sustained  by  the  evi- 
dence, a  verdict  of  guilty  was  to  be  held  an 
agreement  by  the  jury  that  accused  falsely  re- 
ported the  amount  due  from  banks. 

[Ed.  Note. — For  other  cases,  see  Criminal  Law, 
Cent.  Dig.  gg  2098-2101 ;    Dec.  IMg.  g  878.*] 

8.  Cbtminai,  Law  (g  H44*)— Vebdict— Pbe- 

SUMPTIONS. 

It  is  presumed  that  the  verdict  of  a  jury 
rests  on  the  facts  established  by  the  evidence  in 
the  case. 

[Ed.  Note.— For  other  cases,  see  Criminal  Law, 
Cent  Dig.  gg  3010-3037 ;  Dec.  Dig.  g  1144.*] 

9.  Banks  and  Banking  (g  62*)— Officers- 
False  REPOBTS  —  PBOSECUTION  —  INSTBUC- 
TIONS. 

A  count  of  an  information  charged  a  bank 
cashier  with  making  false  entries  in  the  report 


of  the  bank  aa  to  the  amovnt  dm  from  banks 
and  the  amonnt  due  on  time  certificate*  of 
deposit.  The  court  read  such  count  to  the  jury, 
and  stated  that  it  was  for  them  to  determine 
whether  there  were  any  false  statements  o>' 
false  entries  as  to  the  resonrcea  and  liabilities 
of  the  bank  in  such  report,  and  whether  or  not 
it  contained  any  false  statements  or  entries  as 
to  any  of  the  books  of  the  bank.  Held,  that  it 
would  be  presumed  that  the  jury  applied  the 
words  "any  false  statements  or  false  entries"  in 
view  of  what  immediately  preceded,  namely,  that 
the  prosecution  was  for  falsifying  the  report 
in  the  two  respects  alleged  in  the  information 
read  to  them,  and  that  hence  the  instruction 
was  sufficiently  restrictive,  and  did  not  prejudice 
accused. 

[B>d.  Note.— For  other  cases,  see  Banks  and 
Banking,  Cent.  Dig.  gg  123,  124;  Dec.  Dig.  { 
02,*] 

Error  to  Circnlt  Court,  Trempealeau  Coun- 
ty: J.  J.  Fruit,  Judge. 

Joseph  Ruth  was  convicted  of  crime,  and 
brings  error.    AfiSnned. 

The  defendant  in  this  case  was  the  cashier 
of  the  Bank  of  Arcadia.  Be  had  been  cash- 
ier for  26  years,  and  was  the  executive  head 
of  the  bank.  In  response  to  the  request  of 
the  state  commissioner  of  banking,  the  de- 
fendant on  December  8,  1907,  made  a  report 
of  the  condition  of  the  bank  under  his  cbargp. 
The  report  was  unsatisfactory  to  the  com- 
missioner, and,  upon  examination  of  the 
bank,  he  determined  that  the  cashier  was 
guilty  of  irregularities  in  the  administration 
of  the  bank's  affairs,  and  had  attempted  to 
conceal  them  by  false  entries  and  omissions 
In  the  bank's  books  and  by  false  statemeuts 
in  his  report  Defendant  was  arrested  upon 
the  complaint  of  the  commissioner  charging 
him  with  the  making  of  false  entries  in  the 
books  of  the  bank  and  in  the  report  to  the 
commissioner.  He  was  Informed  against  by 
the  district  attorney,  and  was  charged  (1) 
with  making  false  entries  in  the  certificate 
register  of  the  Bank  of  Arcadia,  of  which  he 
was  cashier;  (2)  with  making  false  entries  in 
a  ledger,  falsely  stating  the  amount  due  to 
the  Bank  of  Arcadia  from  the  Second  Na- 
tional Bank  of  Winona,  Minn.;  (3)  with  mak- 
ing false  entries  in  the  report  of  the  bank  of 
which  he  was  cashier  to  the  state  commis- 
sioner of  banking  regarding  the  amount  "Due 
from  banks''  and  the  amount  due  on  "Time 
certificates  of  deposit."  The  defendant  de- 
murred to  the  information  for  the  reason 
that  the  ttiree  counts  wore  improperly  Join- 
ed. The  court  overruled  the  demurrer.  The 
defendant  moved  the  court  that  the  state  be 
required  to  elect  upon  which  count  it  would 
proceed  to  try  the  defendant.  This  motion 
was  denied,  and  the  defendant  was  tried 
on  the  charges  as  preferred  in  the  informa- 
tiou. 

The  register  of  certificates  of  deposits, 
some  certificates  of  deposit,  some  pages  of 
the  cash  book,  and  other  records  of  the  Bank 
of  Arcadia  and  two  statements  of  the  rela- 
tion of  the  Bank  of  Winona  to  the  Bank  of 
Arcadia,  which  had  been  prepared  by  the 


•For  other  casn  ■««  soma  topic  and  lectlon  NCHBBR  In  Dec.  *  Am.  Digs.  1907  to  date,  ft  Reporter  Index* 


Digitized  by  VjOOQ  l€ 


WlB.) 


EUTH  V.  STATE. 


735 


bank  and  which  were  Identifled  by  the  cash- 
ier of  the  Bank  of  Winona,  were  Introduced 
In  evidence.  An  expert  who  had  spent  some 
12  days  examining  the  books  of  the  Bank  of 
Arcadia  gave  evidence  that  there  had  been 
a  difference  between  the  books  of  the  two 
banks  for  several  years  and  pointed  out  the 
entries  in  the  books  of  the  Bank  of  Arcadia 
or  the  failure  to  make  entries  of  transactionB 
and  the  other  means  by  which  tliese  differ- 
ences had  been  concealed.  The  evidence  of 
this  witness  and  of  others  tended  to  show 
that  the  entries  made  regarding  the  amounts 
due  from  the  Bank  of  Winona  to  the  Bank 
of  Arcadia  were  not  correct,  and  that  the 
amount  given  in  the  report  of  the  defendant 
to  the  commissioner  of  banking  as  to  the 
amount  of  money  due  from  the  bank  on  time 
certificates  of  deposits  was  about  $2,000  less 
than  was  the  fact  The  practice  of  the  bank 
and  the  authority  of  the  cashier  in  the  mat- 
ter of  the  books  of  the  bank  was  put  in  evi- 
dence to  establish  defendant's  responsibility 
for  incorrect  statements  regarding  the  bank's 
affairs  and  for  false  entries  in  the  books  of 
the  Bank  of  Arcadia.  At  the  conclusion  of 
the  evidence  the  court  took  from  the  Jury  the 
consideration  of  the  second  count  in  the  in- 
formation, on  the  ground  that  the  evidence 
would  not  sustain  a  conviction  on  this  count. 

In  submitting  the  case  to  the  Jury,  the 
court,  after  reading  to  them  the  third  count 
In  the  Information,  Instructed  them:  "It  Is 
for  you  to  determine  under  all  of  the  evi- 
dence In  the  case  whether  or  not  there  are 
any  false  statements  or  false  entries  in  ref- 
erence to  the  resources  and  liabilities  of  the 
bank  •  •  •  contained  in  suctf  rep6rt,  and 
whether  or  not  such  report  contains  any  false 
statements  or  false  entries  with  reference  to 
any  of  the  books  of  such  bank."  The  Jury 
returned  a  verdict  finding  the  defendant  not 
guilty  on  the  first  count,  but  guilty  on  the 
third  count 

The  case  is  now  l>efore  this  court  for  re- 
view. 

John  P.  Doherty  and  Geo.  W.  Bunge,  for 
plaintiff  In  error.  F.  L.  Gilbert,  Atty.  Gen., 
A.  C.  Titus,  Asst  Atty.  Gen.  (B.  F.  Hensel, 
of  counsel),  for  the  State. 

SIEBECKER,  J.  (after  stating  the  facts  as 
above).  The  plaintiff  in  error  alleges  that 
tlie  refusal  of  the  court  at  the  beginning  of 
the  trial  to  compel  the  district  attorney  to 
elect  on  which  count  of  the  information  he 
wonld  prosecute  the  case  operated  to  bis 
prejudice.  The  three  counts  of  the  informa- 
tion charged  the  defendant  with  making  false 
entries  in  the  books  of  the  bank  and  with 
making  a  false  report  to  the  commissioner  of 
banking.  It  is  apparent  that  all  of  the  of- 
fenses alleged  in  the  three  counts  of  the  In- 
formation pertained  to  alleged  false  entries 
in  the  bank  books  respecting  transactions 
with  other  banks,  and  with  reference  to  out- 
standing time  certificates.  It  is  alleged  that 
these  transactions  were  violations  of  the  pro- 


visions of  section  17,  subc.  2,  c.  234,  p.  363, 
Laws  1903,  which  makes  it  an  ofl'ense  if 
"any  banker,  officer,  director  or  employe  of 
any  bank  •  •  •  shaU  wUlfully  and  know- 
ingly subscribe  to  or  make,  or  cause  to  be 
made,  any  false  statement  or  false  entry  in 
the  books  of  any  bank,  or  mutual  savings 
bank,  •  •  •  or  shall  knowingly  make, 
state,  or  publish  any  false  report  or  state- 
ment of  such  bank,  or  mutual  savings  bank." 
The  different  counts  of  tlie  information  all 
relate  to  false  book  entries  and  to  the  re- 
port to  the  commissioner  of  banking  Imsed 
thereon.  The  matter  of  requiring  prosecut- 
ing officers  in  criminal  cases  to  elect  on 
what  counts  of  an  information  they  will  pros- 
ecute the  cause  Is  deemed  to  be  very  much 
in  the  discretion  of  the  trial  court  It  was 
no  error  to  Join  the  three  counts  in  one  in- 
formation. The  separate  alleged  offenses  re- 
ferred to  false  entries  In  the  bank  books  and 
the  report  to  the  commissioner  of  banking, 
and  pertained  to  acts  of  the  defendant  in 
making  or  causing  a  series  of  false  book  en- 
tries to  be  made  for  the  purpose  of  deceiv- 
ing others  as  to  the  true  state  of  the  bank's 
accounts  and  financial  condition,  and  falsely 
reporting  thereon  to  the  commissioner  of 
banking.  These  matters  arose  out  of  the 
transactions  and  acts  of  the  defradant  per- 
taining to  his  administration  of  the  l>ank's 
business.  Under  such  clrcumstaHces,  it  was 
proper  to  charge  the  defendant  with  the 
different  offenses  arising  out  of  these  trans- 
actions in  the  same  information  and  to  pro- 
ceed to  trial  on  all  of  them.  Such  a  proceed- 
ing in  no  way  deprived  the  defendant  of  any 
rights,  nor  did  It  put  him  at  a  disadvantage 
in  making  his  defense.  This  course  of  proce- 
dure is  abundantly  approved  in  the  adjudica- 
tions of  this  court  State  v.  Gummer,  22 
Wis.  441;  Martin  v.  State,  70  Wis.  165,  48  N. 
W.  119;  Colbert  v.  State,  125  Wis.  432,  104  N. 
W.  61.  See,  also,  Bishop's  Criminal  Practice, 
§f  422-444. 

The  court  discharged  the  defendant  as  to 
the  second  count,  and  no  further  considera- 
tion need  be  given  it 

It  is  urged  by  the  accused  tliat  the  court 
committed  prejudicial  error  in  admitting 
the  evidence  of  the  experts  respecting  the 
state  of  the  account  between  the  Arcadia  and 
Winona  banks,  and  the  condition  of  the  ac- 
counts of  the  Arcadia  bank.  The  claim  is 
that  these  experts  were  permitted  to  testify 
that  items  of  book  entries  were  shown  to  be 
incorrect  by  means  of  summary  statements 
and  tables  which  they  had  taken  and  made 
from  the  book  accounts  of  the  books  of  both 
banks,  without  introducing  in  evidence  all  of 
these  books  and  the  entries  on  which  such 
statements  were  based,  and  without  produ- 
cing any  evidence  tending  to  show  that  the 
book  entries  and  accounts  of  the  Winona 
bank  were  correct  and  true.  The  practice  of 
permitting  expert  accountants  to  examine 
long  book  accounts  and  to  give  in  summary 
form  the  results  thereof  for  the  information 


Digitized  by  LjOOQ  l€ 


736 


122  NOHTHWESTERN  REPDHTER. 


(Wis. 


of  tli«  court  and  Jury  Is  approved  as  prac- 
tical and  proper  In  the  trial  of  causes  Involv- 
Ing  the  examination  of  long  book  accounts. 
A  proper  administration,  of  course,  requires 
that  the  opposing  party  shall  be  afforded  the 
time  and  opportunity  to  test  the  correctness 
of  the  evidence,  and  for  this  purpose  to  have 
access  to  the  books  and  the  use  of  them  for 
the  purposes  of  cross-examination.  In  so  far 
as  this  practice  was  adopted  in  the  case,  we 
find  nothing  in  the  record  showing  that  the 
-evidence  of  the  experts  on  this  subject  was 
Improper.  The  claim  that  the  failure  to  offer 
in  evidence  all  of  the  account  books  of  the 
Arcadia  bank  which  was  covered  by  this  evi- 
dence operated  to  defendant's  prejudice  is 
not  shown,  for  it  appears  that  all  such  books 
were  brought  into  court,  were  Identified,  and 
>irere  accessible  to  the  defendant  and  his  at 
tomey. 

It  appears  from  the  evidence  of  the  experts 
that  the  Arcadia  bank  books  disclose  the 
fact  that  the  defendant  inserted  in  his  report 
to  the  commissioner  of  banking  an  incorrect 
and  false  sum  as  the  amount  due  from  the 
Winona  bank.  It  is  contended  that  this  evi- 
dence of  the  experts  also  included  a  state- 
ment that  the  books  of  the  Winona  bank 
show  that  the  defendant  falsified  book  en- 
tries and  his  report  of  the  amount  due  from 
other  banks,  that  there  is  no  evidence  of 
the  contents  of  such  books  or  of  their  cor- 
rectness, and  that  the  jury  may  have  found 
the  defendant  guilty  upon  this  evidence.  The 
inquiry  arises  whether  such  evidence  could 
operate  to  the  prejudice  of  the  defendant. 
We  conclude  that  the  defendant  could  not 
have  been  prejudicially  affected  thereby  be- 
cause It  appears  conclusively  from  the  rec- 
ord, aside  from  the  experts'  evidence  in  the 
case,  that  he  knowingly  made  the  false  re- 
port as  charged  in  the  third  count  of  the 
indictment  of  which  he  was  found  guilty  by 
the  Jury.  It  is  established  by  the  defend- 
ant's evidence  that  the  bank's  ledger  accounts 
<lld  not  correctly  state  the  amount  due  from 
the  Winona  bank  on  December  3,  1907,  the 
date  when  the  defendant  reported  the  condi- 
tion of  his  bank  to  the  commissioner  of  bank- 
ing. He  testifies  that  he  knew  that  these 
ledger  accounts  were  incorrect,  in  that  the 
sum  due  from  the  Winona  bank,  as  there 
stated,  exceeded  the  actual  amount,  and  that 
the  amount  reported  to  the  commissioner  of 
banking  as  due  from  other  banks  was  based 
on  this  incorrect  statement  This  state  of 
the  evidence  shows  that  the  statements  of  the 
experts  were  simply  corroborative  of  defend- 
ant's admitted  knowledge  of  the  falsity  of  the 
book  entries  and  of  the  report  of  December 
.3, 1907.  The  expert  evidence  so  received  could 
not  under  such  circumstances  operate  to  prej- 
udice the  defendant  in  any  way,  for  he  rais- 
ed no  issue  as  to  these  facts  and  the  Infer- 
ence of  guilt  from  such  undisputed  facts  was 
left  to  the  determination  of  the  Jury. 

It  is  furthermore  contended  that  the  ver- 
dict cannot  stand  because  the  element  of  the 


offense  charged  In  the  third  count  respecting 
the  falsification  of  the  report  as  to  outstand- 
ing time  certificates  is  not  sustained  by  evi- 
dence, and  because  the  Jury  in  their  verdict 
found  defendant  not  guilty  of  willfully  falsi- 
fying the  books  and  the  report  In  this  respect 
by  their  verdict  on  the  first  count  in  the  in- 
formation. The  third  count  charges  the  de- 
fendant with  the  offense  of  making  a  false 
report  to  the  commissioner  of  banking  and 
specifies  that  it  was  false  in  two  respects, 
namely,  in  falsifying  the  items  respecting  (J) 
the  amount  due  from  other  banks;  and  (2)  the 
amount  of  the  outstanding  time  certificates. 
The  argument  is  that,  since  these  two  items 
are  embraced  in  the  charge,  a  verdict  of  guil- 
ty thereof  cannot  stand  unless  the  proof 
shows  that  the  report  was  falsely  made  as 
to  both  Items.  We  do  not  find  the  claim  well 
founded.  True,  the  offense  of  falsifying  the 
report  Is  alleged  to  have  been  in  the  two 
particulars  specified,  but  a  finding  that  it 
was  made  willfully  false  with  Intent  to  de- 
ceive in  one  of  the  specified  ways  would  es- 
tablish the  offense  of  making  a  false  report. 
It  seems  obvious  that  a  falsification  of  the 
report  as  to  one  item  constitutes  a  violation 
of  the  law  under  the  alleged  charge  inde- 
pendently of  the  other  violation  specified  in 
the  Information.  The  claim  that  it  cannot 
be  known  whether  the  jury  agreed  to  a  ver- 
dict of  guilty  for  falsely  reporting  the  amount 
due  from  other  banks  Is  not  to  be  indulged  in 
view  of  their  verdict  that  he  was  not  guilty 
under  the  first  count.  This  establishes  af- 
firmatively that  their  verdict  of  guilty  on  the 
third  count  must  be  based  on  other  grounds, 
and  that  it  could  only  be  that  he  made  a 
false  report  of  the  amount  due  from  other 
banks.  Furthermore,  it  is  presumed  that  the 
verdict  of  a  jury  rests  upon  the  facts  estab- 
lished by  the  evidence  in  the  case.  We  are 
of  the  opinion  that  the  verdict  of  guilty  must 
be  held  to  be  an  agreement  of  the  Jury  that 
the  defendant  falsely  and  feloniously  report- 
ed the  amount  due  from  other  hanks  and  it 
should  stand. 

The  instructions  of  the  court  are  assailed 
as  erroneous  for  the  reason  that  the  court 
did  not  restrict  the  Jury  in  agreeing  upon 
their  verdict  upon  the  third  count  in  the 
Information  to  the  offense  embraced  therein. 
The  court  read  to  the  Jury  this  charge  In 
the  information,  and  then  stated  to  them: 
"You  have  beard  what  it  [the  Information] 
contains,  and  you  have  also  had  offered  be- 
fore you  in  evidence  the  report  itself,  and 
It  is  for  you  to  determine  under  all  of  the 
evidence  in  this  case  whether  or  nbt  there  are 
any  false  statements  or  false  entries  in  ref- 
erence to  the  resources  and  liabilities  of  the 
bank  •  •  •  contained  in  such  report  and 
whether  or  not  snch  report  contains  any  false 
statements  or  false  entries  with  reference  to 
any  of  the  books  of  such  bank."  Though  the 
court  used  the  words  "any  false  statements 
or  false  entries"  in  speaking  of  the  book  en- 
tries and  the  resources  and  liabilities,  it  must 


Digitized  by  VjOOQ  l€ 


wis.) 


T.  D.  KELLOGG  LUMBER  &  MFG.  CO.  v   WEBSTER  MFG.  CO. 


737 


be  presumed  that  the  Jury  applied  this  lan- 
guage in  view  of  wliat  Immediately  preceded, 
namely,  that  the  prosecution  was  for  falsify- 
ing the  report  in  the  two  respects  alleged  in 
the  information  just  read  to  them.  This  cor- 
rectly Informed  them  of  the  items  embraced 
by  the  court  In  this  general  reference  to  any 
false  statements  or  entries  embraced  in  de- 
fendant's report.  The  instruction  was  there- 
fore sufficiently  restrictive  to  guide  the  jury 
in  their  deliberations,  and  was  not  prejudi- 
cial to  the  accused. 

We  find  nothing  in  the  record  showing  any 
error  affecting  the  substantial  rights  of  the 
defendant  to  his  prejudice  and  calling  for  a 
reversal  of  the  judgment. 

Judgment  affirmed. 

WINSLOW,  C.  J.,  took  no  part 


T.  D.  KELLOGG  LUMBER  &  MFG.  CO.  T. 

WEBSTER  MFG.  CO. 
(Supreme  Court  of  Wisconsin.     Oct.  5,  1909.) 

1.  Appeal  and  Ebbob  (|  1012*)— Findings— 

CONCLTTBIVBNESa. 

Unless  the  clear  preponderance  of  the  evi- 
dence is  against  the  finding*,  they  cannot  be  dls- 
torl)ed  on  appeal. 

[EM.  Note.— For  other  cases,  see  Appeal  and 
Error.  Cent.  Dig.  H  3990-3992;    Dec  Dig.  { 

2.  Evidence  (8  354*)— Books  of  Account. 

Under  St  1898,  g  4187,  providing  that  ac- 
count books  shall  not  l>e  admitted  as  testimony 
of  any  item  of  money  delivered  at  one  time  ex- 
ceeding $5,  entries  in  defendant's  books  show- 
ing payment  to  defendant's  agent  of  money 
exceeding  $5  to  purdiase  a  tax  certificate,  whi(£ 

Surchase  aefendant  claimed  operated  as  a  re- 
emption,  were  inadmissible,  m  an  action  by 
plaintiff  on  a  covenant  against  incumbrances  to 
recover  the  amount  paid  in  redemption  of  the 
certificate. 

(Ed.    Note.— For   other  cases,    see    Evidence, 
Cent.  Dig.  §|  1432-1483;   Dec  Dig.  {  354.*] 

8.  Evidence   (|   271»)  — Shxp-Sebving   Dbo- 

i.abati0nb. 

Where,  in  an  action  by  a  vendee  on  a  cove- 
nant against  incnmbrances  to  recover  the 
amount  paid  to  redeem  a  tax  certificate,  de- 
fendant claimed  ttiat  it  had  purchased  the  cer- 
tificate through  its  agent,  a  letter  written  by 
defendant's  bookkeeper,  stating  that  the  agent 
bad  bought  in  the  certificate  in  his  own  name, 
and  referring  to  a  draft  sent  by  defendant  to 
complete  the  payment,  was  a  self-serving  decla- 
ration and  incompetent. 

[Ed.    Note.— For   other   cases,    see    Evidence, 
Cent.  Dig.  §  1087;    Dec.  Dig.  (  271.*] 

4.  Evidence  (J  271*)— Declabattons  — Un- 
swoBN  Statements  or  Agent. 

The  unsworn  statements  of  an  agent  are 
not  evidence  In  favor  of  the  principal. 

[Ed.    Note.— For   other   cases,    see   Evidence, 
Cent.  Dig.  g  1087;    Dec.  Dig.  |  271.»] 

5.  Evidence  ({  234*)  —  Admissions  or  As- 
noNOB. 

The  admissions  of  an  assignor  made  prior 
to  the  assignment  are  admissible  against  the 
assignee. 

(Ed.    Note.— For  other  cases,    see   EMdence, 
Cent.  Dig.  f  870;  Dec  Dig.  g  234.*] 


6.  Appeal  and  Ebbob  (g  273*)— Exceptions— 

StJFFICIENCT. 

That  plaintiff's  excei>tion  to  a  finding  was 
too  general  was  immaterial,  where  other  find- 
ings necessary  to  make  defendant's  case  were 
sufficiently  excejited  to,  and  were  unsupported 
by  competent  evidence. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Dec  Dig.  g  278.*] 

7.  Pbincipal  and  Agent  (§  68*)— PtTBCHASE 
or  Tax  GEBTiricATE  by  Agent. 

An  agent  charged  with  the  duty  of  pay- 
ing taxes,  and  furnished  money  by  his  prin- 
cipal for  that  purpose,  cannot  acquire  a  valid 
tax  certificate  as  against  the  principal. 

(Ed.  Note. — For  other  cases,  see  Principal  and 
Agent,  Cent  Dig.  g§  130-145;  Dec.  Dig.  g  60.*] 

Appeal  from  Circuit  Court,  Langlade  Coun- 
ty;  John  Goodiand,  Judge. 

Action  by  the  T.  D.  Kellogg  Lumber  & 
Manufacturing  Company  against  the  Webster 
Manufacturing  Company.  Judgment  for  de- 
fendant, and  plaintiff  appeals.  Reversed,  and 
cause  remanded  with  instructions. 

This  action  was  brought  to  recover  ^521.61 
paid  November  19,  1904,  In  redemption  of  a 
tax  certificate  alleged  to  be  outstanding 
against  the  real  estate  of  plaintiff,  purchased 
from  the  defendant  through  one  T.  D.  Kel- 
logg. The  action  was  based  upon  covenants 
against  incumbrances,  and  it  was  alleged 
that  the  tax  certificate  was  an  outstanding 
incumbrance  against  plaintUTs  property,  and 
before  action  brought  the  plaintiff  paid  the 
amount  due  on  the  certificate  to  the  county 
clerk  of  Langlade  county,  and  brought  this 
action  to  recover  it  from  the  defendant  upon, 
a  warranty.  The  action  was  tried  by  the 
conrt,  and  the  court  found  that  on  the  22d 
day  of  December,  1898,  the  defendant  was 
the  owner  of  the  real  estate  in  question,  and 
conveyed  the  same  by  warranty  deed  to  one 
Kellogg,  who  conveyed  to  the  plaintiff,  and 
that  simultaneously  with  the  delivery  of  said 
warranty  deed  the  defendant  executed  and 
delivered  to  Kellogg  a  writing  whereby  it 
agreed  to  save  Kellogg  harmless  from  all 
tax  certificates  outstanding  against  said  real 
estate.  That  in  May,  1897,  said  lands  were 
sold  for  taxes  to  one  W.  C.  Weeks  for  the 
sum  of  |24e.l3,  and  a  certificate  In  the  usual 
form  Issued  to  said  Weeks.  That  between 
1892  and  the  date  of  the  conveyance  of  the 
premises  by  defendant.  Weeks  was  In  the  em- 
ploy of  defendant  as  superintendent,  and 
had  charge  of  its  business  in  Langlade  coun- 
ty. That  A.  J.  Webster  was  president  and 
manager  of  defendant,  and  all  transactions 
and  communications  between  Weeks  and  the 
defendant  were  conducted  on  behalf  of  de- 
fendant by  said  A.  X  Webster,  and  that  said 
Webster  died  in  1903.  That  during  the  super- 
intendency  of  said  Weeks  the  defendant  kept 
a  bank  account  In  the  city  of  Antigo,  lAng- 
lade  county,  and  Weeks  as  superintendent 
and  agent  of  defendant  drew  checks  against 
said  bank  account,  and  made  drafts  on  the 


•For  other  caiai  se*  wun*  topic  and  tectios  NITUBER  In  D«c.  ft  Am.  Dtga.  19i>7  to  date,  ft  Reporter  Indexee 
122  N.W.— 47  • 


Digitized  by 


Google 


738 


122  NOKTHWESTEUN  KEPOllTEB. 


(Wis. 


Iiome  ofRix  at  Superior  for  the  benefit  of  the 
bank  account  at  Antigo  in  the  name  of  de- 
fendant by  Weelis,  superintendent.  That  in 
purchasinif  the  tax  certificate  Weeks  acted  as 
agent  of  defendant,  and  purchased  such  cer- 
tificate with  the  money  of  the  defendant  and 
held  it  for  its  benefit  That  in  March,  1898. 
defendant  brought  an  action  against  Lang- 
lade county,  Weeks,  and  others,  to  set  aside 
the  taxes  for  which  said  land  was  sold,  and 
for  which  the  certificate  had  Issued  to  Weeks. 
That  the  action  was  brought  by  an  attorney 
employed  on  behalf  of  defendant  by  Weeks, 
and  that  said  Weeks  on  behalf  of  defendant 
controlled  said  action,  and  made  all  com- 
munications with  the  attorney  so  employed. 
That  Langlade  county  in  its  answer  averred 
that  said  Weeks  bought  and  held  this  cer- 
tificate as  the  agent  of  defendant,  and  that 
his  purchase  of  it  amounted  to  a  payment 
of  the  taxes.  That  this  action  was  never 
brought  to  trial,  and  has  never  been  disposed 
of.  That  on  February  16,  1903,  said  Weeks 
commenced  an  action  against  the  plaintiff  to 
for^lose  said  tax  certificate  pursuant  to 
section  1181,  St  1898,  which  action  is  denom- 
inated the  "Weeks  action."  That  soon  aft- 
er the  Weeks  action  was  begun,  and  on  Feb- 
ruary 18,  1903,  the  plaintiff  herein  notified 
defendant  in  this  action  of  the  commence- 
ment of  said  action,  and  that  If  it  did  not 
jclve  the  matter  immediate  consideration,  it 
would  be  necessary  for  plaintiff  to  protect 
.its  interest  In  the  action,  and  hold  defendant 
for  all  damages.  That  the  Weeks  action  re- 
mained pending  In  the  Langlade  county  cir> 
cult  court  until  the  fall  of  1904.  In  Septem- 
ber, 1904,  the  plaintift  demanded  of  defend- 
ant that  it  redeem  from  the  tax  certificate 
in  question,  so  as  to  clear  the  title  to  the 
property  and  let  the  money  remain  In  court 
in  lieu  of  the  certificate  lien,  and  that  if  this 
were  not  done,  plaintiff  would  redeem,  and 
look  to  defendant  for  its  damages.  In  reply 
to  this  the  defendant  ottered  to  assume  the 
defense  of  the  action,  but  refused  to  redeem 
from  the  certificate,  and  advised  against 
plaintiff  doing  so.  That  Immediately  after 
redemption  by  plaintiff  upon  stipulation  be- 
tween plaintiff  and  Weeks  the  Weeks  action 
was  discontinued.  That  at  no  time  did  the 
plaintiff  tender  defendant  the  Aeteoae  of  the 
Weeks  action.  And  as  conclusions  of  law: 
That  the  purchase  by  Weeks  of  the  tax  cer- 
tificate constituted  a  payment  of  the  taxes, 
and  that  such  certificate  was  no  Uen  against 
the  premises  in  question,  and  that  the  re- 
demption by  plaintiff  from  the  tax  certificate 
raised  no  liability  of  defendant  to  plaintiff. 
Judgment  was  entered  accordingly  that  plain- 
tiff take  nothing,  and  that  the  defendant 
Webster  Manufacturing  Company,  recover 
from  the  plaintiff  the  costs.  From  the  Judg- 
ment entered  this  appeal  was  taken. 


Flnncane  ft  Conway,  for  appellant. 
<>ard,  for  respondoftt 


H.  V. 


KERWIN,  J.  (after  stating  the  facts  as 
above).  The  vital  question  for  determinatloii 
upon  this  appeal  Is  whether  the  tax  certifi- 
cate taken  in  the  name  of  Weeks  was  a  valid 
Hen  upon  the  real  estate  conveyed  to  plain- 
tiff. If  BO,  then  the  plaintiff  had  a  good 
cause  of  action  against  the  defendant  This 
question  turns  upon  whether  the  propf  es- 
tablishes that  tha  certificate  was  taken  by 
Weeks  for  the  defendant,  and  therefore 
amounted  to  a  payment  of  the  taxes,  and 
whether  the  relation  of  Weeks  to  the  de- 
fendant in  the  matter  was  such  as  to  prevent 
him  from  taking  the  certificate,  and  there- 
by making  it  a  lien  upon  the  premises. 
These  questions  involve  an  examination  of 
the  evidence  as  to  whether  or  not  It  sustains 
the  findings.  Much  labor  has  been  imposed 
upon  the  court  on  account  of  the  Indefinite 
and  unsatisfactory  condition  of  the  eTl- 
dence.  We  have  bestowed  much  labor  upon 
the  record,  with  a  view  of  discovwing,  If 
possible,  sufficient  competent  evidence  to 
support  the  findings  in  view  of  the  well- 
settled  doctrine  of  this  court  that  unless 
the  clear  preponderance  of  the  evidence.  Is 
against  the  findings,  they  cannot  be  dis- 
turbed. We  have  in  the  first  place  the  primu 
fade  case  made  in  favor  of  We^s'  title  by 
the  certificate,  regular  upon  Its  face,  in  ad- 
dition to  the  positive  evidence  of  Weeks 
that  he  was  the  absolute  owner  of  the  cer- 
tificate corroborated  by  Gertrude  Weeks, 
bookkeeper.  To  meet  this  evidence  the 
defendant  attempted  to  make  a  case  by 
Btatements  in  books  of  defendant  kept  by 
Weeks  and  his  wife  while  In  the  employ  of 
defendant  and  letters  and  declarations  writ- 
ten and  made  by  agents  of  defendant.  The 
defendant  put  in  evidence,  under  objection, 
certain  entries  on  the  cashbook  and  ledger  or 
the  defendant  company,  which  It  was  claim  - 
ed  tended  to  show  payment  by  the  defend- 
ant of  an  amount  on  a  tax  certificate  cor- 
responding to  the  amount  of  the  tax  cer- 
tificate in  question;  also  a  letter  In  the  hand- 
writing of  Gertrude  Weeks,  and  found  in  the 
files  of  defendant's  office,  referring  to  the 
fact  that  the  land  had  been  sold  for  taxes, 
and  that  Weeks  had  bought  In  the  certifi- 
cate In  his  own  name  In  order  to  save  In- 
terest and  stating  the  amount  paid  for  the 
certificate,  which  corresponds  In  amount 
with  the  eertlilcate  in  question,  <uid  Qiat  the 
defendant  had  made  draft  for  $200  to 
make  up  the  amount  of  the  certificate,  $245.- 
13.  The  draft  also  was  found  In  the  files  of 
defendant's  office,  and  Is  in  evidence,  un- 
der objection.  But  the  difficulty  with  this 
evidence  Is  that  it  was  incompetent  The 
entries  In  the  books  wece  not  competent  l>e- 
cause  no  sufficient  foundation  was  laid  for 
their  admission  under  the  provisions  of  8e<< 
tlons  4186,  4187,  St  1898.  and  they  were  not. 
even  if  regularly  In  evidence,  proof  of  pay- 
ment of  the  item  $246.13,  being  an  Item  ex- 
ceeding $3.  Section  4187,  St.  1808;  Winner 
et  al.  V.  Bauman.  28  Wis.  S63;    Brown  t. 


Digitized  by 


L-oogle 


Wls4 


T.  D.  KELLOGQ  LUMBER  A  MFG.  CO.  t.  WEBSTER  MFO.  OO. 


739 


Warner  et  al.,  116  Wis.  358,  93  N.  W.  17. 
The  letters  and  entries  could  only  be  admis- 
sible, if  at  all,  as  declarations  of  the  agents 
of  defendant,  and  upon  this  ground  defend- 
ant's counsel  claims  they  were  competent, 
particularly  the  letter  written  by  Gertrude 
Weeks,  heretofore  referred  to,  respecting  the 
payment  of  the  $245.13  on  the  tax  certifi- 
cate. No  attempt  was  made  to  prove  the 
facts,  but  the  letter  and  other  declarations 
of  the  agents  of  defendant  were  offered  as 
evidence  of  payment  Such  evidence  was 
merely  self-serving  declarations  and  incom- 
petent. Anderson  ▼.  Fetzer  et  aL,  75  Wis. 
562,  44  N.  W.  838;  Befay  et  al.  ▼.  Wheeler, 
M  Wis.  135,  63  N.  W.  1121;  Chase  v.  Wood- 
mff,  133  WJs.  655,  113  N.  W.  »73,  128  Am. 
St  Rep.  972;  Fay  ▼.  Rankin  et  al.,  47  Wis. 
400,  2  N.  W.  662;  JUsum  v.  Stebbins,  41  Wis. 
235.  It  was  not  shown  that  the  letter  was 
written  or  sent  by  Gtertrude  Weeks;  only  that 
It  was  found  In  the  flies,  and  was  in  her 
handwriting.  The  onswom  statements  of 
an  agent  are  not  evidence  in  favor  of  the 
principal.     16  Cyc.  1205,  1206. 

It  is  argued,  however,  by  respondent  that 
the  declarations  were  not  the  declarations 
of  agents  of  defendant,  but  admissions  of 
W.  C.  Weeks  made  through  his  wife  and 
agent,  but  both  Weeks  and  his  wife  were 
agents  of  defendant  in  the  transactions  of- 
fered as  evidence.  It  is  further  argued  that 
the  admissions  of  Wetics  were  admissible 
against  plaintiff  because  plaintiff  is  claim- 
ing under  Weeks,  under  the  doctrine  that 
the  admissions  of  an  assignor  made  prior 
to  the  assignment  are  admissible  against  the 
assignee,  citing  McCnrdy  v.  Rogers,  21  Wis. 
199,  91  Am.  Dec.  468,  and  Snyder  v.  Jen- 
nings, 15  Neb.  372,  19  N.  W.  501.  But  the 
rale  has  no  application  here.  The  plaintiff  Is 
not  claiming  as  assignee  of  Weeks.  Its 
cause  of  action  Is  based  upon  breach  of  war- 
ranty by  defendant  An  examination  of  the 
antborltles  cited  by  respondent  will  show 
that  they  do  not  support  his  contention. 
Snyder  v.  Jennings,  supra,  is  to  the  point 
that  wliere  a  grantee  of  land,  without  the 
knowledge  or  consent  of  his  grantor,  sur- 
renders possession  to  an  adverse  claimant, 
he  cannot  thereafter  maintain  an  action  up- 
on the  covenant  of  warranty  without  alleg- 
ing and  proving  that  the  title  which  he  sur- 
renders Is  paramount  to  the  title  received 
from  his  grantor.  McCnrdy  v.  Rogers,  su- 
pm,  Involves  the  question  of  personal  lia- 
bility of  an  agent,  and  the  plaintiff  sued 
as  assignee  of  one  Lent,  and  It  was  held 
that  the  admissions  of  Lent  made'  before 
the  assignment  of  bis  claim  were  admissi- 
ble. This  is  the  general  doctrine.  1  Greenl. 
(ISth  Bd.)  I  190;  Hay  ward  R.  Co.  v.  Dnnck- 
lee,  30  Vt  29;  Roebke  v.  Andrews,  26  Wis. 
311;  Kreckeberg  et  al.  t.  Leslie,  111  Wis. 
482,  87  N.  W.  450;  Vagta  t.  Utman,  125  Wis. 
265,  104  N.  W.  88;  Lamoreux  v.  Huntley 
et  al.,  68  Wis.  24,  81  N,  W.  831;  Griswold 
T.  Nichols,  126  Wis.  401,  106  N.  W.  815. 


Counsel  for  respondent  frankly  admits 
that  the  books  were  not  qualified  under  Ihe 
statute  so  as  to  be  admissible  in  evldeirge, 
but  he  says  they  were  admissible  as  ltd 
missions  of  Weeks  made  by  his  agent,  Ger- 
trude Weeks.  The  admissions  of  Weeks 
and  Gertrude  were  the  admissions  of  the 
agents  of  defendant  as  we  have  seen: 
therefore  were  not  admissible  In  favor  of 
the  princlpaL  It  is  also  insisted  that  there 
was  fraud  and  collusion  betweoi  plaintiff 
and  Weeks  established;  therefore  declara- 
tions of  We^s  were  admissible  in  favor  of 
defendant  The  court  below  made  no  find- 
ings upon  this  question,  and  we  are  not  able 
to  say  upon  the  evidence  that  fraud  was 
established. 

Counsel  for  respondent  further  insists  tha't 
there  arc  no  suflSclent  exceptions  to  the 
ninth  finding,  to  the  effect  that  defendant 
kept  a  bank  account  at  Antlgo,  and  that 
Weeks  drew  checks  against  it  and  made 
drafts,  on  the  ground  that  at  least  three  dis- 
tinct propositions  are  embraced  in  this  find- 
ing, and  that  the  exception  to  It  Is  too  gen- 
eral. It  Is  at  least  very  doubtful  whether 
this  objection  may  not  be  good  as  to  thl» 
finding  under  the  doctrine  laid  do^n  in  In- 
gersoll  V.  Seatoft,  111  Wis.  461,  8*  N.  W. 
4C0,  and  other  cases  in  this  conrt  But 
even  if  this  be  so,  it  does  not  help  the  re- 
spondent out  of  the  difficulty,  because  other 
findings  necessary  to  make  the  defendant's 
case  are  sufficiently  excepted  to,  and  are  un- 
supported by  competent  evidence.  Nor  do 
we  think  the  proposition  of  respondent's 
counsel  that  Weeks  could  not,  because '  of 
his  position  with  the  defendant,  take  the  tax 
certificate  In  his  own  name  Is  supported,  by 
the  evidence.  It  Is  true  If  Weeks  were 
charged  with  the  duty  of  paying  the  taxes, 
and  was  furnished  with  money  by  defendant 
for  that  purpose,  he  could  not  acquire  a 
valid  tax  certificate  as  against  defendant 
McMahon  v.  McGraw  et  al.,  26  .Wis.  614; 
Fox  Y.  Zimmerman  et  al.,  77  Wis.  414,  .^6 
N.  W.  533;  Geislnger  v.  Beyl,  80  Wis.  443, 
60  N.  W.  601.  But  in  the  Instant  case  Weeks 
was  not  charged  with  the  duty  of  payment 
of  taxes.  From  the  evidence  this  duty  ap- 
pears to  have  rested  with  A.  J.  Webster, 
president  of  the  defendant  and  the  book- 
keeper. 

Some  other  grounds  in  addition  to  those 
considered  are  argued  by  counsel  for  ap- 
pellant, upon  which  it  is  Insisted  that  plain- 
tiff was  entitled  to  recover;  but,  since  fre 
have  concluded  to  reverse  the  judgment  up- 
on other  grounds,  we  shall  not  treat  them  In 
this  opinion. 

Without  the  incompetent  evidence  errone- 
ously admitted  there  is  practically  no  evi- 
dence to  support  the  findings  upon  which  the 
Judgment  rests.  It  follows  therefore  that 
the  judgment  must  be  reversed. 

The  judgment  Is  reversed,  and  the  cause 
remanded,  with  instructions  to  the  court  be- 
low to  enter  judgment  for  plaintiff  nnless 


Digitized  by  VjOOQ  IC 


740 


122  NORTHWESTERN  REPORTSaa. 


CWiB. 


the  court  below  Btaall.ln  Ita  discretion,  apon 
proper  showing,  order  a  new  trlaL 

WINSLOW,  C  J.,  took  no  part 


PECK  ▼.  cm  OF  BARABOO.t 

(Supreme  Court  of  Wisconsin.     Oct.  6,  1909.) 

1.  MUNICIPAI,    COBPOBAIIONS    ({    835*)— SUR- 
FACE Wateb. 

A  city  may,  by  construction  and  grading  of 
streets,  change  the  flow  of  surface  water  so  as 
to  bring  down  upon  a  lot  owner  from  new  wa- 
tersheds surface  water  which  would  not  other 
.yrise  have  taken  that  course  or  reached  bis  lot. 

[EJd.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  I  1785;    Dec.  Dig.  i 

2.  Mttnioipai.  Cobfobations  ({  832*)— Sew - 

BBS— SUBFAGE   WATEB. 

A  ci^  which  first  collects  surface  water  in 
a  sewer  or  drain,  and  thereafter,  through  neg- 
ligent construction  or  maintenance  of  the  sewer 
or  drain,  allows  the  water  to  escape  on  land  ad- 
jacent to  the  sewer,  is  liable  for  damages  caused 
thereby. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  I  1782;    Dec.  Dig.  I 

5.  Mtjkicipai.  Cobpobatiorb  (i  830*)- Sew- 
EBS— Discontinuance— SuBFACE  Wateb. 

A  municipality  may,  after  it  has  provided 
A  drain  or  sewer  for  carrying  oS  surface  water, 
discontinue  such  drain  or  sewer  if  the  adjacent 
landowners  are  thereby  left  In  no  worse  condi- 
tion with  reference  to  surface  water  set  back 
than  if  the  sewer  had  not  been  constructed. 

[Ed.  Note.— For  other  cases,  see  Mtmicipal 
Corporations,  Cent  Dig.  gf  1778,  1779;  Dec. 
Dig.  f  830.*] 

4.  Waters  and  Water  Coubses  (J  119*)  — 

SuBFACB  Wateb. 

The  right  of  a  landowner  to  improve  his 
land  in  such  manner  as  he  desires,  either  by 
changing  the  surface  or  by  the  erection  of  build- 
ings or  other  structures,  is  not  restricted  by  the 
fact  that  his  own  land  Is  so  situated  with  ref- 
erence to  that  of  adjoining  owners  that  an  al- 
teration In  the  mode  of  its  improvement  will 
cause  the  surface  waters  thereon,  or  flowing  over 
tbe  surface  of  adjacent  lots,  either  to  stand  in 
unusual  quantities  on  other  adjacent  lands  or 
to  pass  into  and  over  the  same  in  greater  quan- 
tities or  in  other  directions  than  tney  were  ac- 
customed to  flow. 

[Ed.  Note.— For  other  cases,  see  Waters  and 
Water  Courses,  Cent.  Dig.  {§  131-134 ;    Deo. 
Dig.  {  119.»] 
8.  Municipal  Cobpobations  ({}  831,  832*)— 

SBWXRS— SUBFACE    WATEB. 

A  municipal  corporation  is  not  liable  in 
damages  to  a  landowner  because  a  sewer  is  in- 
adequate by  reason  of  negligence  in  adopting 
plans  in  the  first  place,  or  by  reason  of  negli- 
gently failing  to  maintain  the  sewer  in  good 
working  order  thereafter  to  carry  off  surface 
water  as  fast  as  it  accumulates. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  |§  1780,  1781,  1782; 
Dec.  Dig.  a  831,  832.*] 

6.  Costs  (|  258*)  —  Bbucfs  —  Noncompuance 
WITH  CouBT  Rdixs-Effect— Costs. 

Where  Supreme  Court  Rules  9,  10,  11,  and 
12  (108  N.  W;  vi)  were  disregarded,  the  brief 
oontaihing  no  assignment  of  errors,  but  contain- 
ing numerous  propositions  of  fact  averred  to  be 
in  evidence,  without  any  reference  to  the  print- 


ed case  or  the  record  to  show  on  what  such  prop- 
ositions were  based,  and  there  bein^  no  adequate 
statement  of  the  nature  of  the  action  or  of  the 
issues  involved,  or  of  the  leading  facts  and  con- 
clusions which  the  evidence  tended  to  establish, 
no  costs  would  be  allowed  for  the  expense  of 
printing  the  case  or  briel 

[Ed.  Note.— For  other  cases,  see  0>Bts,  Cent. 
Dig.  §  980;    Dec.  Dig.  {  258.*] 

Appeal  from  Circuit  Court,  Sauk  County; 
E.  Ray  Stevens,  Judge. 

Action  by  William  R.  Peck  against  the  City 
of  Baraboo.  Judgment  for  plaintiff,  and  de- 
fendant appeals.  Reversed  and  cause  re- 
manded, with  directions  to  enter  Judgment 
for  defendant 

John  M.  Kelley  (F.  R.  Bentley,  of  counsel), 
for  appellant  Orotopborst,  Evans  &  Thomas, 
for  respondent 

TIMLIN,  J.  In  the  circuit  court  the  re- 
spondent presented  a  complaint  charging  tbe 
appellant  with  negligence  in  the  adoption 
of  a  plan  for  a  sewer  or  system  of  sewerage 
which  was  partly  upon  the  street  in  front  of 
respond^t's  property,  also  negligence  in  fail- 
ing to  adopt  any  plan  for  the  same,  also  neg- 
ligence in  maintaining  such  sewer,  and  aver- 
red that,  in  consequence  of  such  negligence, 
the  respondent  was  damaged  by  a  flow  of 
surface  water  on  bis  premises  on  May  22, 
1907,  which  water  the  sewer  so  n^ligently 
constructed  and  maintained  failed  to  cany 
off  after  a  beavy  ralnfalL  Tbe  Jury,  after 
hearing  tbe  evidence,  arguments,  and  In- 
structions, returned  a  special  verdict  as 
follows:  "(1)  Did  tbe  defendant  use  ordinary 
care  in  adopting  the  plan  for  tbe  Barker 
street  seWer;  Ans.  No.  (2)  Did  tbe  de- 
fendant use  ordinary  care  In  maintaining 
such  sewer?  Ans.  No.  (3)  Was  the  rain  of 
May  22,  1907,  an  extraordinary  rain?  Ans. 
No.  (4)  If  you  answer  no  to  either  question 
No.  1  or  question  No.  2,  was  such  want  of 
ordinary  care  the  proximate  cause  of  tbe  in- 
jury sustained  by  plaintiff  May  22,  1907? 
Ans.  Yes.  (5)  Did  tbe  sewer  in  front  of 
plaintiff's  property  on  May  22,  1907,  carry 
anything  but  surface  water?  Ans.  Yes." 
Tbe  respondent's  damages  were  assessed  by 
the  jury  at  $370.  Respondent  moved  for 
Judgment  in  bis  favor  upon  this  verdict,  and 
tbe  learned  trial  Judge  added  a  conclusion 
from  tbe  evidence,  or  a  finding,  that  tbe  land 
and  streets  adjacent  to  respondent's  prop- 
erty had  been  so  graded  as  to  Increase  tbe 
flow  of  surface  water  down  to  and  upon 
such  property,  and  ordered  Judgment  In 
favor  of  respondent 

It  will' be  noticed  that  there  is  no  aver- 
ment In  the  pleading,  and  no  finding  by  tbe 
Jury,  that  the  water  was  first  collected  by  the 
city  In  tbe  sewer  and  then  escaped  upon  re- 
spondent's land,  nor  were  tbe  waters  backed 
up  upon  the  respondent's  land  after  having 
been  taken  into  tbe  sewer  by  reason  of  de- 
fects In  tbe  constmction  or  maintenance  of 


•Irer  othar  .eases  ■••  same  topic  and  section  NUUBER  in  X>ec.  tt  Jua.  Digs.  DOT  to  dat*.  ft  Kaportar  Indez* 

t  Rehearlns  denied  December  7,  IMS. 

Digitized  by  VjOOQ  l€ 


wis.) 


PECK  V.  CITY  OF  BARABOO. 


741" 


the  8e>rer,  nor  were  respondent's  premises 
connected  with  the  sewer.  The  verdict,  taken 
with  the  complaint,  merely  affirms  that  after 
a  heavy,  but  not  an  extraordinary,  fall  of 
rain,  the  premises  of  the  respondent  were  In- 
jured— 1.  e.,  damaged — from  the  action  of 
surface  water  covering  the  same,  which  sur- 
face water  the  sewers  in  question  failed  to 
carry  off  as  It  fell  In  rain.  (The  fifth  finding 
of  the  Jury  Is  too  indefinite,  and,  assuming 
Its  verity,  it  establishes  nothing  material.) 
The  city  did  not  use  ordinary  care  In  adopt- 
ing a  plan  for  a  designated  sewer  which  we 
will  assume  to  include  the  sewer  in  ques- 
tion adjoining  respondent's  premises.  The 
city  did  not  use  ordinary  care  in  maintain- 
ing this  sewer.  One  of  these  two  lapses  was 
the  proximate  cause  of  the  Injury  to  re- 
spondent, which  means  the  damage  to  his 
property;  but  which  alleged  breach  of  duty 
caused  the  damage  is  not  found.  No  doubt, 
such  a  special  verdict  would  be  quite  suffi- 
cient in  form  if  the  first  question  as  an- 
swered, and  the  second  question  as  answered, 
each  established  an  invasion  of  respondent's 
legal  rights,  a  breach  of  legal  duty  owing 
from  the  appellant  to  the  respondent,  or,  in 
case  one  of  the  questions  was  answered  in 
the  affirmative  and  one  In  the  negative,  and 
that  answered  in  the  negative  established 
such  breach  of  duty.  But  In  case  both  are 
answered  in  the  negative,  ■  and  either  fails 
to  set  forth  an  actionable  wrong,  or  neither 
of  the  first  two  questions  of  the  verdict  sets 
forth  an  actionable  wrong,  that  Is  to  say,  a 
breach  of  legal  duty  due  from  appellant  to 
respondent,  It  must  be  obvious  that  the  Jury 
have  failed  to  find  affirmatively  that  the 
damages  suffered  by  the  respondent  were 
caused  by  any  wrong  or  delict  on  the  part 
of  appellant.  This  would  be  a  fatal  defect. 
This  form  of  special  verdict  is  disapproved 
because  It  Is  at  best  only  contingently  good. 
That  is,  sufficient  upon  the  contingency  of 
the  Jury  answering  both  the  first  and  sec- 
ond questions  In  the  negative  that  both  are 
supported  by  evidence,  and  that  each  as  an- 
swered constitutes  a  delict  for  which  de- 
fendant is  answerable  to  the  plaintiff;  or,  in 
the  contingency  that  one  is  answered  In 
the  affirmative  and  the  other  In  the  negative, 
and  the  latter  finds  the  defendant  guilty  of 
an  actionable  wrong.  We  think  the  words  of 
the  special  verdict  should  receive,  with  a 
ylew  to  support  the  verdict,  great  liberality 
of  construction,  and  we  therefore  assume 
that  want  of  ordinary  care  in  adopting  a 
plan  means  want  of  such  care  In  selecting 
the  plan  and  in  examining  and  passing  upon 
Its  sufficiency,  and  In  falling  to  examine  and 
pass  upon  .its  sufficiency,  and  in  construct- 
ing a  sewer  or  series  of  sewers  without  any 
definite  plan,  although  the  narrower  mean- 
ing of  adopting  by  merely  voting  upon  a  res- 
olution might  be  urged. 

Inquiring  Into  the  legal  duty  due  from  a 
dty  to  a  lot  owner  with  reference  to  the 


construction  of  sewers,  we  find  It  noted  (10 
Am.  &  Eng.  Ency.  Law  [2d  Ed.]  239)  that 
the  decisions  of  the  courts  on  this  subject 
are  by  no  means  harmonious.  The  same 
comment  Is  made  at  Id.  p.  249,  with  refer- 
ence to  the  liability  of  a  municipal  corpora- 
tion for  damages  to  private  property  caus- 
ed by  surface  water.  Whenever  this  condi- 
tion of  discord  is  found  among  the  prece- 
dents, it  Is  advisable  to  confine  ourselves  to 
the  law  of  this  state;  so  that  the  Interstate 
discord  may  not  become  local  and  inter- 
necine. Carelessly  and  negligently  construct- 
ing streets  lying  to  the  north  and  west  of 
certain  land  by  reason  of  which  large  quan- 
tities of  surface  water  which  would  other- 
wise have  passed  off  in  other  directions  were 
conducted  through  the  drains  or  gutters  of 
such  streets  and  cast  In  a  body  on  his  land, 
and  at  the  same  time  raising  the  grade  of 
a  street  to  the  sonth  or  southwest  of  his 
land  so  as  to  retain  on  the  land  the  waters 
thus  cast  upon  it,  was  held  to  confer  no  right 
of  action  In  favor  of  the  owner  of  the  land 
and  against  the  city  doing  these  acts.  Harp 
7.  Baraboo,  101  Wis.  368,  77  N.  W.  744.  It 
will  be  observed  that  this  case  confirms  the 
right  of  the  city  by  construction  and  grad- 
ing of  streets  to  change  the  flow  of  sur- 
face water  so  as  to  bring  down  upon  a  lot 
owner  from  new  watersheds  surface  water 
which  would  not,  but  for  such  street  grading, 
have  taken  that  course  or  reached  his  lot. 
In  Clauson  v.  C.  &  N.  W.  By.  Co.,  106  Wis. 
308,  82  N.  W.  146,  the  railroad  company  by 
a  ditch  on  its  right  of  way  parallel  v^lth  Its 
track  carried  surface  water,  which  would 
otherwise  never  have  reached  the  plaintifTs 
land,  out  of  its  natural  and  usual  course 
and  direction,  and  cast  it  upon  the  land  of 
the  plaintiff.  This  ditch  was  necessary  to 
the  use  and  enjoyment  of  the  defendant's 
property,  and  the  act  was  held  damnum  ab- 
sque Injuria.  In  Heth  v.  Fond  du  Lac,  63 
Wis.  228,  23  N.  W.  405,  63  Am.  Rep.  279, 
the  city  in  the  construction  and  grading  of 
streets  so  changed  the  course  and  fiow  of  sur- 
Face  water  as  to  bring  an  Increased  fiow  in 
the  drain  leading  towards  plaintifTs  land  and 
cast  upon  plaintifTs  land  large  quantities  of 
surface  water,  part  of  which  but  for  this 
drain  would  never  have  reached  plaintiff's 
land,  but  would  have  passed  off  in  a  different 
direction.  It  was  held  that  the  city  was  not 
liable.  In  diamplon  v.  Town  of  Crandon, 
84  Wis.  405,  54  N.  W.  775,  19  L.  R.  A.  856,  It 
was  ruled  that  in  the  construction  and  drain- 
ing of  streets  the  town  might  change  the 
natural  flow  of  surface  water  on  the  streets 
so  as  to  bring  to  the  plaintifTs  land  surface 
water  which  would  not  naturally  fiow  there, 
and  that  neither  a  defective  plan  nor  negli- 
gence in  the  doing  of  such  work  would  suph 
port  the  liability  of  the  town.  But  the  city 
is  not  without  liability  in  a  proper  case  for 
the  negligent  construction  or  maintenance 
of  a  sewer.    If  the  city  first  ooUeet  surface 


Digitized  by 


Google 


T42 


122  NORTHWESTERN  REPORTEB. 


(Wis. 


water  In  a  sewer  or  drain,  and  thereafter 
by  reason  of  negligent  construction  or  main- 
tenance of  the  sewer  or  drain  allow  It  to 
escape  upon  land  adjacent  to  the  sewer,  the 
city  will  be  liable  for  the  damage  caused 
thereby.  Scbroeder  v.  Baraboo,  03  Wis.  95, 
67'  N.  W.  27;  Hart  t.  NelUsvUle,  126  Wis. 
S^,  104  N.  W.  699,  1  L.  B.  A.  (N.  S.)  962. 
This  is  the  distinguishing  point  In  Gllluly  t. 
Madison,  63  Wis.  518,  24  N.  W.  137,  53  Am. 
ftep.  299.  It  wUl  be  noticed  that  In  the  case 
last  cited,  although  It  Is  stated  In  the  opin- 
ion that  the  surface  water  was  collected  from 
other  sources  than  the  street  and  otherwise 
Wpuld  not  have  run  to  plaintiff's  lot,  there 
was  present  the  fact  of  collecting  these  wa- 
f^  In  the  ditch  or  drain  and  leading  them 
t^a  point  therein  in  proximity  to  plalntifTa 
Ibt,  where,  by  reason  of  the  negligently  de- 
f^tlre  condition  of  the  drain,  they  were 
discharged  upon  plalntlfTs  lot  In  view  of 
ol^er  cases  In  this  court,  that  must  be  con- 
sJaered  the  turning  point  in  GiUuIy  v.  Madi- 
uam.  sopra. 

A  municipality,  after  It  has  made  provl- 
Bf6n  by  a  drain  or  sewer  for  carrying  off 
surface  water,  may  discontinue  or  abandon 
the  drain  or  sewer  if  the  landowners  are 
ttrtreby  left  In  no  worse  condition  with  ref- 
eree to  the  surface  water  set  back  than  If 
the  sewer  bad  never  been  constructed.  Wa- 
ters V.  Bay  View,  61  Wis.  642,  21  N.  W.  811. 
If  the  municipality  may  omit  this  Intention- 
ally, It  may  omit  It  negligently  without  In- 
ciijrring  any  liability.  This  does  not  apply 
ggtierally  to  acts  done  as  It  does  to  acts 
otqltted.  This  last  case  negatives  the  ez- 
idtence  of  a  right  of  action  by  the  lot  own- 
ectigalnst  the  city  on  account  of  damages 
froiu  surface  water  set  back  upon  the  lot, 
which  water  the  sewers  of  the  city  were  In- 
svlffident  to  carry  off  by  reason  of  lack  of 
capacity  for  that  purpose  or  by  reason  of 
the  clogging  or  discontinuance  of  the  sewer. 
This  probably  would  not  apply  to  the  ex- 
tent stated  to  injuries  arising  from  sewage  or 
other  agencies  than  surface  water  and  caus- 
ed by  the  negligently  defective  condition  of 
the  sewer,  but  it  is  quite  remarkable  in  this 
connection  that  In  Polk  v.  Milwaukee,  108 
W4s.  359,  84  N.  W.  420,  it  was  ruled  that  the 
city  was  not  liable  for  the  death  of  a  pupil 
in  a  public  school  caused  by  sewer  gas  es- 
caping into  the  school  building  from  a  sewer 
which  the  city  had  knowingly  and  negligently 
allowed  to  become  clogged  up  and  out  of 
repair.  The  common  law  recognizes  some 
distinction  between  the  right  of  a  landown- 
er to  repel  the  Inflow  of  surface  water  upon 
his  land  and  his  right  to  relieve  his  land  of 
Hurface  water  accumulating  thereon  from 
snow  or  rain  or  descending  upon  his  land 
from  higher  levels.  The  case  of  Lessard  v. 
Strnm,  62  Wis.  112,  22  N.  W.  284,  61  Am. 
Itep.  715,  is  here  worthy  of  notice  because 
there  the  town  dammed  against  surface  wa- 
tery and  thereby  threw  It  out  of  its  natural 


course  onto  the  land  of  the  defendants.  The 
latter  dammed  against  this  surface  water 
so  attempted  to  be  thrown  upon  their  land, 
and  thereby  threw  the  surface  water  again 
out  of  Its  natural  course  and  upon  the  lands 
of  plaintiff,  to  his  damage.  It  was  ruled  that 
this  right  to  repel  surface  water  exlsted,'not 
only  against  the  upper  proprietor,  but  gen- 
erally. Johnson  y.  Railroad  Company,  80 
Wis.  641,  60  N.  W.  771,  14  L.  R.  A.  495,  27 
Am.  St  Rep.  76,  also  recognizes  the  right  of 
the  railroad  company  to  repel  surface  water 
from  Its  right  of  way,  although  the  exer- 
cise of  this  right  resulted  In  casting  the  sur- 
face water  out  of  Its  natural  course  and  upon 
the  land  of  another. 

Among  the  rules  of  law  relating  to  surface 
water  the  following,  quoted  with  approval  In 
Shaw  T.  Ward,  131  Wis.  646,  HI  N.  W. 
671,  and  in  other  cases  In  this  court  is  es- 
sentially paramount :  "The  right  of  an  own- 
er of  land  to  occupy  and  improve  it  In 
such  manner  and  for  such  purposes  as  he 
may  see  fit  either  by  changing  the  surface  or 
the  erection  of  buildings  or  other  stmcturea 
thereon.  Is  not  restricted  or  modified  by  tbe 
fact  that  his  own  land  is  so  situated  with  ref- 
erence to  that  of  adjoining  owners  that  an  al- 
teration in  the  mode  of  its  improvement  or  oc- 
cupation In  any  portion  of  It  will  cause  water 
which  may  accumulate  thereon  by  rains  and 
snows  falling  oa  Its  surface  or  flowing  onto 
It  over  the  surface  of  adjacent  Iota  either 
to  stand  in  unusual  quantities  on  other  ad- 
jacent lands,  or  pass  Into  and  over  the  same 
in  greater  quantities  or  In  other  directions 
than  they  were  accustomed  to  flow."  See. 
also,  Manteufel  v.  Wetzel.  133  Wis.  619,  114 
N.  W.  91,  19  L.  R.  A.  (N.  8.)  167.  It  has 
been  declared  to  be  the  law  of  this  state  In 
Clauson  v.  C.  &  N.  W.  Ry.  Co.,  106  Wis.  308, 
82  N.  W.  146,  and  in  other  cases  there  cited. 
that  a  municipal  corporation  in  the  improve- 
ment of  its  streets  by  paving,  grading,  and 
guttering  has  the  same  right  to  obstruct  and 
divert  the  existing  flow  of  mere  surface  wa- 
ter that  an  Individual  owner  has  in  the  Ina- 
provement  of  his  land,  and  that  a  railroad 
corporation  has  tbe  like  right  While  this 
Is  no  doubt  correct  as  a  proposition  of  law. 
there  is  an  essential  distinction  of  fact  be- 
tween the  uses  necessary  to  make  a  street  or 
a  railway  right  of  way  available  for  street 
or  railway  purposes  and  the  improvements 
necessary  to  make  agricultural  or  other  land 
available  for  the  purposes  for  which  sacb 
land  Is  adapted.  In  constructing  or  leveUng 
a  street  or  railroad,  different  watersheds  car- 
rying surface  water  in  various  directions 
may  necessarily  be  Intercepted  In  the  exten- 
sion of  the  street  or  railroad,  and,  as  -we 
have  seen,  the  surface  water  from  each  naay 
be  carried  along  in  the  direction  of  the 
street  or  railroad  and  discharged  at  some 
low  point  subject  only  to  those  legal  rules 
which  regulate  the  manner  of  exercising 
conceded  legal  rights  generlcally  represented 


Digitized  by  LjOOQIC 


wu.> 


WOLF  T.  GREEN  BAT,  O.,  U.  &  8.  W.  EY.  OO. 


743 


in  the  maxim:  "Sic  utere  tuo  ut  allenum 
aon  Isdaa."  Tbls  Interception  and  change 
of  different  watersheds  can  rarely  be  neces- 
sary to  the  enjoyment  and  use  ot  agricul- 
tural lands,  and.  In  view  of  the  limitation 
expressed  In  Manteufel  y.  Wetzel,  supra,  and 
the  great  number  of  cases  collected  In  note 
2.  p.  337,  and  note  7,  p.  836,  30  A.  &  E. 
Ency.  Law,  bearing  on  this  subject,  and  In 
view  of  some  suggested  distinction  in  Wend- 
landt  y.  Cavanaugh,  85  Wis.  256,  55  M.  W. 
408,  and  again  in  Schoster  t.  Albrecht,  96 
WU.  211.  73  N.  W.  990,  67  Am.  St  Bep.  80i. 
between  the  acts  of  private  owners  in  this 
respect  and  those  of  municipal  corporatlona 
and  because  the  extent  of  the  right  of  a  pri- 
vate owner  in  this  respect  is  not  necessarily 
involved  in  this  case,  it  seems  best  to  expre« 
no  opinion  thereupon. 

The  instant  case  presents  upon  the  plead- 
ings, verdict,  and  finding  no  question  of  11a- 
billly  for  discharging  upon  the  land  of  the 
respondent  surface  water  accumulated  In  a 
pond  or  reservoir,  nor  of  allowing  surface 
water  to  escape  from  a  negligently  defective 
sewer  after  the  corporation  has  taken  the 
water  Into  the  sewer  and  assumed  the  car- 
rying of  it  to  the  place  of  discharge.  On 
the  contrary,  there  is  no  liability  shown  be- 
cause in  line  with  the  cases  herein  cited  a 
municipal  corporation  cannot  be  held  in  dam- 
ages by  a  landowner  for  changing  the  natural 
flow  of  and  Increasing  the  volume  of  sui^ 
face  water  by  the  construction  of  streets  and 
gutters,  nor  because  the  sewer  was  inade- 
quate by  reason  of  negligence  in  adopting 
plans  in  the  first  place,  or  by  reason  of  neg- 
ligently falling  to  maintain  the  sewer  in 
good  worlclng  order  thereafter  to  carry  off 
the  surface  water  so  accumulating  as  fast  as 
It  accumulated.  The  printed  case  presented 
by  appellant  does  not  contain  a  fair  state- 
ment of  the  evidence.  The  brief  contains  no 
assignment  of  errors.  It  contains  numerous 
propositions  of  fact  averred  to  be  in  evidence 
without  any  reference  to  the  printed  case 
or  the  record  to  show  upon  what  such  propo- 
sitions are  based.  It  contains  no  adequate 
statement  of  the  nature  of  the  action  nor 
of  the  Issues  involved,  nor  of  the  leading 
facts  and  conclusions  which  the  evidence 
tends  to  establish.  In  short,  rules  9,  10,  11, 
and  12  of  this  court  (108  N.  W.  vl)  have  been 
flagrantly  disregarded.  Therefore  no  costs 
will  be  allowed  to  be  recovered  by  appellant 
for  the  expense  of  printing  the  case  or  brief. 

The  Judgment  of  the  circuit  court  Is  re- 
Tersed,  with  costs  in  favor  of  appellant,  ex- 
cept the  expenses  of  printing  case  and  brief, 
which  are  disallowed,  and  the  cause  is  re- 
manded, with  directions  to  render  Judgment 
for  defendant 

WmSLOW,  C  J.,  took  no  part 


WOLF  et  al.  v.  GREEN  BAT,  O.,  M.  &  S.  W. 
HT.  CO. 

(Supreme  Court  of  Wisconain.     Oct  6,  1900.) 

1.  EXIHENT  DolfAIN   d  262*)— APPEAI.— REO- 

TJi.ABrrT— Pbksuiiptioh. 

Where,  in  a  condemnation  proceeding  In  a 
court  of  general  jariadiction,  no  quesbon  of 
want  of  jurisdiction  was  raised,  the  presump- 
tion is,  in  the  absence  of  a  contrary  showing, 
that  the  necessary  steps  were  taken  for  the 
entry  of  judgment,  though  every  step  neces- 
saiy  to  regularity  does  not  appear  of  record, 
an«f  an  objection  to  the  entry  of  Judgment  be- 
cause no  order  appeared  of  record  directing  the 
clerk  to  enter  judgment  could  not  prevaiL 

[Bid.  Note.— For  other  cases,  see  Eminent  Do- 
main, Dec.  Dig.  {  262.*] 

2.  Affeai.  and  Ebbob  ({  1170*)— RevebsaI/— 
IiOfATEBiAi.  Ebbob. 

Under  St  1898,  {  2820,  providing  that  no 
judgment  shall  be  reversed  for  error  not  affect - 
mg  any  substantial  rights  of  the  parties,  a 
party  could  not  on  appeal  complain  of  an  al- 
leged irregularity  in  the  entry  of  judgment  in 
no  way  affecting  his  substantial   rights. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  S{  4540-4545;  Dec.  Dig.  i 
1170.*] 

5.  Emiitent  Domain   ({  263*)— Appkai.. 

That  in  condemnation  proceedings  the 
rights  of  a  mortgagee  of  the  land  taken  were 
not  adjudicated  was  not  ground  for  disturbing 
the  judgment  on  appeal,  where  it  appeared  that 
the  parties  stipulated  that  the  mortgage  claim 
shonld  be  paid  out  of  the  amount  recovered. 

[EM.  Note.— For  other  cases,  see  Eminent  Do- 
main, Dec.  Dig.   {  263.*] 

4.  Eminent  Domain  (S  141*)  —  Railboads — 

Right  of  Wat— Damages. 

In  condemnation  proceedings,  the  correct 
inquiry  as  to  damages  was  whether  defend- 
ant's lands  adjoining  the  strip  taken  by  the 
railroad  were  depredated  In  market  value  by  the 
taking  of  the  strip. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  {i  872-376;  Dec.  Dig.  i  141.*] 

6.  Emineitt  DoiCAur  (i  262*)— AppeaI/-^Habm 

IJSSB  Ebbob. 

In  condemnation  proceedings,  error  in  per- 
mitting questions  as  to  the  opinion  of  witness- 
es regarding  the  damages  from  the  railroad 
passing  through  the  land  was  not  prejudicial; 
It  appearing  tliat  counsel  and  witnesses  un- 
derstood that  the  word  "damages"  as  employed 
referred  to  depreciation  in  the  market  value  of 
that  part  of  defendant's  lands  not  taken. 

[Ei.  Note.— For  other  cases,  see  Ehninent  Do- 
main, Dec.  Dig.  i  262.*] 

6.  Evidbnob  (I  543%*)— Damages— Opinion 

Evidence— Witnesses— Qualification. 
In  condemnation  proceedings,  witnesses 
showing  familiarity  with  the  value  of  lands,  and 
the  prohable  injni^  to  such  lands  from  division 
by  a  railroad  and  its  operation,  were  qualified  to 
give  opinion  evidence  as  to  damages. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  i  2359;  Dec  Dig.  |  543^.*] 

Appeal  from  Circuit  Court,  Shawano  Coun- 
ty;   John  Goodland,  Judge. 

Condemnation  proceedings  by  the  Green 
Bay,  Oshkosb,  Madison  &  Southwestern  Rail- 
way Company  against  Ernst  Wolf  and  oth- 
ers. On  appeal  by  the  defendants  from  the 
award  of  the  commissioners,  Judgment  was 


•roT  other  eases  sm  same  topic  and  section  N17HBBB  In  Dec.  4k  Am.  Digs.  UOT  to  date,  *  Rcportw  ladsxw 


Digitized  by 


Google 


T44 


122  NORTHWESTERN  REPORTER. 


(Wla. 


entered.    From  such  Judgment,  the  railway 
company  appeals.     Affirmed. 

This  is  a  proceeding  for  acquiring  a  strip 
of  land  across  the  farm  of  the  respondents 
as  a  right  of  way  for  the  appellant  railway 
company.  Upon  the  a{^al  from  the  award 
of  the  commissioners  appointed  to  appraise 
the  damages,  the  Jury  in  the  circuit  court 
awarded  the  respondents  $175  as  the  value 
of  the  strip  of  land  taken  and  |575  as  the 
damages  suffered  by  the  remainder  of  re- 
spondents' farm  by  the  taking.  The  com- 
missioners had  awarded  |103.80  as  the  val- 
ue of  the  strip  taken  and  $60  as  the  dam- 
ages to  the  remainder  of  respondents'  land. 

TTpon  the  trial  one  of  the  witnesses  had 
stated  that  it  was  a  damage  to  have  the 
railroad  passing  through  the  farm,  and  he 
was  then  asked:  "Q.  In  your  opinion,  how 
much  does  that  damage  amount  to?"  An- 
other witness  was  asked :  "Q.  What,  in  your 
opinion,  is  the  amount  of  damage  caused  by 
the  Wisconsin  &  Northern  cutting  through 
this  land?"  Other  witnesses  were  asked  sim- 
ilar questions.  Objection  was  made  to  these 
qnestlone  on  the  ground  that  they  were  in- 
competent and  immaterial  and  not  proper 
questions.  No  specific  ground  for  the  ob- 
jection was  suggested  to  the  court.  Although 
exception  was  taken  to  the  ruling  of  the 
court  permitting  these  questions,  no  attempt 
was  made  on  cross-examination  to  have  the 
witnesses  explain  the  grounds  for  their  opin- 
ions, or  what  they  included  in  their  esti- 
mates of  the  damages  to  which  they  had  tes- 
tified. 

The  court  instructed  the  Jury  that  the  re- 
spondents were  entitled  to  recover  the  value 
of  the  strip  taken,  and  that  the  depreciation 
In  the  market  value  caused  to  the  remainder 
of  the  respondents'  farm  by  such  taking  and 
use  constituted  damages  which  they  were 
also  entitled  to  recover.  After  the  costs 
were  taxed,  the  clerk  of  the  court  entered 
Judgment  in  favor  of  the  respondents  for  the 
full  amount  found  by  the  Jury.  Reference 
is  made  In  the  Judgment  to  the  fact  that  the 
strip  taken  is  Included  In  a  mortgage  on 
the  lands  of  the  respondents,  and  that  the 
parties  had  stipulated  for  its  payment  out 
of  the  damages  recovered.  No  deduction 
was  made  in  the  Judgment  entered  of  the 
amount  which  had  been  awarded  by  the 
commissioners  and  which  the  appellant  had 
paid  into  court.  Appellants  have  filed  a 
satisfaction  for  so  much  of  the  Judgment  as 
was  so  paid  into  court.  This  is  an  appeal 
from  the  Judgment 

Wallrlch,  Dlllett  &  Larson,  for  appellant 
P.  J.  Winter,  for  respondents. 

SIEBECKER,  J.  (after  stating  the  facts 
as  above).  The  objection  to  the  entry  of 
Judgment  because  no  order  appears  of  record 
directing  the  clerk  to  enter  Judgment  cannot 
prevail.  This  is  a  proceeding  In  a  court  of 
general  Jurisdiction,  and  no  question  of  want 


of  Jurisdiction  is  raised.  Under  such  cir- 
cumstances the  rule  is  that  though  every 
step  necessary  to  regularity  may  not  appear 
of  record,  the  presumption.  In  tbe  absence 
of  a  contrary  showing,  is  that  the  necessary 
steps  were  taken  for  the  entry  of  Judgment 
Falkner  v.  Guild,  10  Wis.  S63;  In  re  Mar- 
chant's  Estate,  121  Wis.  526,  09  N.  W.  320. 
It  does  not  appear  that  the  alleged  irregu- 
larity in  any  way  affected  the  substantial 
rights  of  the  appellant.  He  is,  therefore,  in 
no  position  to  complain.  Section  2829,  St 
189& 

Nor  Is  the  fact  that  the  rights  of  the 
mortgagee  in  the  land  taken  were  not  ad- 
judicated good  ground  for  disturbing  the 
Judgment  on  this  appeal,  for  it  appears  that 
the  parties  by  stipulation  agreed  that  the 
mortgage  claim  on  the  land  should  be  paid 
out  of  the  amount  recovered.  If  any  action 
is  required  to  protect  appellant  as  to  the 
payment  of  this  incumbrance,  it  can  readily 
be  secured  upon  application  to  the  court  for 
a  direction  in  the  matter. 

The  objection  to  the  opinion  evidence  of 
witnesses  testifying  to  the  damages  caused 
to  the  respondents'  land  adjoining  the  strip 
taken  is  twofold  in  character.  It  is  claimed 
that  the  questions  propounded  were  improp- 
er, and  that  the  witnesses  were  not  qualified 
to  give  opinions  on  the  subject  of  inquiry. 
The  appropriate  and  correct  inquiry  is 
whether  respondents'  lands  adjoining  the 
strip  taken  were  depreciated  in  market  value 
by  the  taking  of  the  strip.  The  court,  in 
submitting  the  issue  to  the  Jury,  informed 
them  that  the  respondents  could  recover  no 
damages  for  injury  to  lands  not  taken,  un- 
less it  appeared  that  they  were  depreciated 
in  market  value  by  the  taking  of  the  strip 
and  its  use  for  railroad  purposes.  The  ques- 
tions propounded  to  the  witnesses  were  gen- 
eral in  form,  and  do  not  specifically  embody 
this  form  of  Inquiry.  It  appears,  however, 
from  what  took  place  at  the  trial,  that  the 
questions  propounded  comprehended  this 
idea,  and  that  counsel  and  witnesses  under- 
stood that  the  word  "damages,"  as  employ- 
ed, referred  to  the  depreciation  in  the  mar- 
ket value  of  that  part  of  respondents'  lands 
not  taken.  This  is  confirmed  by  appellant's 
counsel's  omission  to  make  any  Inquiry  of 
the  witnesses  as  to  what  was  embraced  in 
their  opinion  on  the  subject  His  failure  to 
pursue  the  matter  was  evidently  due  to  the 
fact  that  counsel,  court  and  Jury  understood 
the  witnesses  were  expressing  their  opinion 
of  the  depreciation  in  the  market  value  of 
the  lands  not  taken.  We  do  not  find  that 
the  irregularity  complained  of  operated  to 
the  appellant's  prejudice. 

The  witnesses'  qualification  to  give  opin- 
ion evidence  on  this  subject  was  sufflcientiy 
shown.  They  showed  familiarity  with  the 
value  of  lands,  and  the  probable  injury  to 
such  lands  from  division  by  a  railroad  and 
Its  operation.  The  grounds  of  their  opinions 
were  sufflcientiy  disclosed  to  the  Jury. 


Digitized  by  VjOOQ  l€ 


wis.) 


BATES  V.  CHICAGO,  M.  &  ST.  P.  RT.  00, 


745 


It  Is  urged  that  the  remarks  of  respond* 
ents'  connsel  to  the  Jury  were  prejudicial. 
We  hare  examined  them,  and  find  no 
grounds  for  an  Inference  that  they  In  any 
way  affected  the  result  on  the  trial. 

There  Is  no  reversible  error  In  the  record. 

Judgment  affirmed. 

WINSLOW,  a  J.,  took  no  part. 


BATES  T.  CHICAGO,  M.  &  ST.  P.  RT.  CO. 

(Supreme  Court  of  Wisconsin.     Oct.  5,  1909.) 

1.  Gabbiebs  (4  286*)— Cabbiage  of  Passen- 
GEBS— Condition  of  Pbemises— "Question 
OP  Engineering." 

The  mie  that,  as  long  as  there  is  no  latent 
danger  in  the  construction  or  maintenance  of  ap- 
pliances, a  servant  assumes  the  risk  of  injury 
from  the  obvious  character  of  such  appliances, 
has  no  application  between  carrier  and  passen- 
ger; and  hence,  in  an  action  against  a  railroad 
by  a  passenger  for  injuries  in  a  baggage  room, 
that  the  construction  of  the  baggage  room  was 
a  "question  of  engineering,"  meaning  a  ques- 
tion of  judgment  in  the  construction  of  the  ap- 
pliance, was  not  a  defense ;  it  being  the  duty 
of  defendant  to  have  the  room  reasonably  safe. 
[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent.  Dig.  §S  1142-H49;   Dec.  Dig.  8  286.*] 

2.  Cabriebs  (§  133*)— Depot  Buildings— Du- 
Tx  OF  Cabbieb. 

It  is  the  duty  of  a  carrier  to  provide  rea- 
sonably safe  buildings  in  which  property  trans- 
ported over  its  road  may  be  securely  stored, 
and  facts  showing  the  character  and  location 
of  the  building,  materials  out  of  which  it  was 
built,  and  its  liability  to  take  fire  are  proper  to 
go  to  the  jury  to  show  that  the  building  was 
not  reasonably  safe. 

[Ed.    Note.— For    other   cases,    see    Carriers, 
Dec.  Dig.  §  133.*] 

8.  Cabbiers   (S  320*)— Railboads— Lighting 

Depots— Questions  fob  Jubt. 

While  it  is  the  duty  of  a  railroad  to  have 
its  depot  open  and  lighted  for  the  convenience 
of  passengers,  it  is. for  the  jury  whether  in  any 
particular  case  the  road  was  negligent  in  failing 
to  have  such  lights. 

[Ed.    Note.-rFor    other   cases,    see   Carriers, 
Cent.  Dig.  {  1149;    Dec.  Dig.  }  320.*] 

4.  Carbiebs  (§  320*)— Cabbiage  of  Passen- 
OEBB  —  Pebsonai,  injubies  —  Unsafe  Bao- 
6AQK  Room- Questions  fob  Jubt. 

In  an  action  against  a  railroad  for  injuries 
to  a  passenger  through  stepping  into  space  be- 
tween a  baggage  truck  and  the  wall  of  a  de- 
pression in  the  floor  of  the  room,  made  to  bring 
the  top  of  the  truck  on  a  level  with  the  floor,  to 
facilitate  the  loading  and  unloading  of  baggage, 
whether  the  room,  as  so  constructed,  was  rea- 
sonably safe  for  the  use  of  passengers  identify- 
ing baggage  therein,  held,  under  the  evidence, 
for  the  jury. 

[Ed.  Note.— For  other  cases,  see  Carriers,  Dec. 
Dig.  }  320.*] 

6.  Tbial  (8  350*)— Submission  of  Questions. 
In  an  action  against  a  railroad  for  injuries 
to  a  passenger  in  an  alleged  unsafe  baggage 
room,  the  court  properly  refused  to  submit  to 
the  jury,  as  part  of  the  special  verdict,  wheth- 
er it  could  have  been  reasonably  anticipated 
that  the  accident  would  have  occurred  at  the 
time  and  place  in  question,  since  the  inquiry 
should  have  been  whether  defendant  could  have 
reasonably   anticipated   that   an    injury   might 


probably  result  to  a  passenger  by  reason  of  the 
construction  and  maintenance  of  the  room  used 
as  it  was. 

[Ed.  Note.— For  other  cases,  see  Trial,  Dec. 
Dig.  {  350.*] 

6.  Evidence  (|  588*)— DisBEOABDiNa  Testi- 
mont  of  Witnesses. 

It  requires  an  extraordinary  ease  to  au- 
thorize the  court  to  regard  sworn  testimony  as 
manifestly  impossible  and  untrue. 

[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent.  Dig.  <  2437 ;   Dec.  Dig.  8  588.*] 

7.  Tbial  (88  139.  140*)- Pbovince  of  Court 
AND  Jubt  — Weight  and  Cbedibilitt  op 
Testimont. 

The  weight  and  credibility  of  testimony  are 
for  the  jury. 

[Ed.  Note.— For  other  eases,  see  Trial,  Cent. 
Dig.  88  332,  33&-341,  365;  Dec.  Dig.  88  139, 
1^.*] 

8.  Cabbiebs  (8  316*)  —  Cabbiage  op  Passen- 
OEBS— Pebsonal  Injuries  —  Contbibutobt 
Negligence— Bubden  of  Pboof. 

In  an  action  against  a  railroad  for  injuries 
to  a  passenger  in  an  alleged  dangerous  baggage 
room,  the  burden  of  proving  that  plaintiff  must 
have  seen  and  ought  to  have  avoided  the  dan- 
ger was  on  defendant. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent.  Dig.  38  1261,  1262,  1283-1294;  Dec 
Dig.  8  316.*] 

9.  Tbial  (8  351*)— Special  Findings. 

Under  Laws  1907,  p.  571,  c.  346  (St.  1898, 
8  2858m),  providing  that  whenever  any  special 
verdict  is  submitted  to  a  jury,  and  there  is  omit- 
ted therefrom  some  controverted  matter  of  fact 
not  brought  to  the  attention  of  the  trial  court 
by  request,  but  essential  to  sustain  the  judg- 
ment, such  matter  of  fact  shall  be  deemed  de* 
termined  by  the  court,  in  conformity  with  its 
judgment,  and  the  neglect  or  omission  to  request 
a  finding  by  the  jury  on  such  matter  shall  be 
deemed  a  waiver  of  jury  trial  pro  tanto,  and  a 
consent  that  such  omitted  fact  be  determined  b; 
the  court,  It  is  incumbent  on  attorneys  to  pre- 
sent to  the  trial  court  fairly  and  openly  requests 
for  the  submission  of  questions  of  fact  In  a 
special  verdict,  and  if,  bemg  present  and  having 
opjMirtunity,  they  fail  to  do  so,  they  thereby 
waive  the  right  to  have  the  jury  pass  on  that 
particular  item  of  fact,  and  the  court,  upon  ren- 
dering judgment  adversely  to  them,  necessarily 
resolves  that  fact  against  them. 

[E3d.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  8  837 ;   Dec.  Dig.  8  351.*] 

Appeal  from  Clrcnit  Court,  Vernon  Coun- 
ty;  J.  J.  Fruit,  Judge. 

Action  by  Mary  A.  Bates  against  the  Chi- 
cago, Milwaukee  &  St  Paul  Railway  Com- 
pany. Judgment  for  plaintiff,  and  defendant 
appeals.    Affirmed. 

Among  other  references  upon  the  part  of 
the  appellant  were  the  following:  Twitchell 
V.  G.  T.  Ry.  Co.  (D.  C.)  39  Fed.  419 ;  Bande- 
kow  V.  C,  B.  &  Q.  Ry.  Co.,  136  Wis.  341, 
117  N.  W.  812;  Groth  v.  Thomann,  110  Wis. 
488,  86  N.  W.  178;  Hill  et  al.  v.  Fond  du 
Lac,  56  Wis.  242,  14  N.  W.  25;  Kelley  v. 
C,  M.  &  St.  P.  Ry.  Co.,  63  Wis.  74,  9  N. 
W.  816;  Sherman  v.  Menominee  R.  L.  Co., 
77  Wis.  14,  45  N.  W.  1079;  McGowan  v.  C. 
&  N.  W.  Ry.  Co.,  91  Wis.  147,  64  N.  W.  891 ; 
Block  V.  Milwaukee  St  Ry.  Co.,  89  Wis.  371, 
61  N.  W.  1101,  27  L.  R.  A.  365,  46  Am.  St 
Rep.  849 ;  Rowley  v.  C,  M.  &  St  P.  Ry.  Co., 


•For  other  casn  see  same  topic  and  section  NUMBER  la  Deo.  *  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


746 


122  NORTHWESTERN  REPORTER. 


(Win. 


135  Wis.  208,  115  N.  W.  865;  Jone«  ▼.  C.  & 
N.  W.  Ry.  Co.,  49  Wis.  332,  6  N.  W.  854; 
Itourda  v.  Jones,  110  Wis.  52,  85  N.  W.  671 ; 
Peat  r.  C,  M.  &  St  P.  Ry.  Co.,  128  Wis.  86, 
107  N.  W.  355;  O'Brien  ▼.  O.,  M.  &  St  P. 
Ry.  Co.,  102  Wis.  628,  78  N.  W.  1084;  Dowd 
T.  C,  M.  &  St  P.  Ry.  Co.,  84  Wis.  106,  64 
N.  W.  24,  20  L.  R.  A.  627,  36  Am.  St  Rep. 
017;  Boyce  v.  Wilbur  L.  Co.,  119  Wis.  642, 
97  N.  W.  563;  6  Thompson,  Neg.  I  7635; 
.\tklnson  y.  Goodrich  T.  Co.,  60  Wis.  141, 
18  N.   W.   764,   50  Am.   Rep.   352. 

Among  other  references  upon  the  part  of 
the  respondent  \rere  the  following:  IlL  Cent 
It.  R.  Co.  V.  Griffin,  80  Fed.  278,  25  0.  C. 
A.  413;  Hupfer  v.  Nat  DIst  Co.,  114  Wta. 
279,  90  N.  W.  101;  Bennett  v.  loalsvllle, 
etc.,  Ry.  Co.,  102  U.  S.  577,  26  L.  Ed.  235; 
Barowskl  ▼.  Schulz,  112  Wis.  415,  88  N.  W. 
236;  3  Thompson,  Neg.  S{  2678,  2709,  2710; 
Bremer  v.  Plelss,  121  Wis.  61,  98  N.  W, 
945;  1  Thomp.  Neg.  |  993;  Banderob  ▼. 
Wis.  Coit  Ry.  Co.,  133  Wis.  249,  113  N.  W. 
738 ;  26  A.  ft  E.  Bncy.  Law,  p.  612 ;  Hartwlg 
T.  C.  ft  N.  W.  By.  Co.,  49  Wis.  858,  5  N. 
W.  865;  Bloor  t.  Delafield,  69  Wis.  273, 
34  N.  W.  115;  Oarske  t.  Rldgevllle,  123  Wis. 
503,  102  N.  W.  22;  Mor«!y  t.  Lake  Superior, 
etc.,  Co.,  125  Wis.  148,  103  N.  W.  271,  12 
L.  R.  A.  (N.  S.)  221;  Howard  t.  Belden- 
vlUe  L.  Co..  129  Wis.  06,  108  N.  W.  48. 

C.  B.  Vroman  and  C.  W.  Graves,  for  ap- 
pellant D.  O.  Mahoney  and  J.  Henry  Ben- 
nett, for  respondent 

TIMLIN,  J.  Upon  a  special  verdict  finding 
that  the  plalntlfT  when  injured  was  in  the 
baggage  room  of  the  defendant  at  the  invita- 
tion of  the  baggage  master,  and  that  this 
baggage  room  was  not  then  reasonably  safe 
for  the  use  of  passengers  invited  thereto  to 
Identify  their  baggage,  and  that  this  condi- 
tion of  the  baggage  room  was  the  proximate 
cause  of  plalntlfTs  Injury,  and  that  there 
was  no  want  of  ordinary  care  on  plalntlfTs 
part  which  contributed  to  such  injury,  the 
plaintiff  had  Judgment  for  the  amount  of 
damages  found  by  the  Jury. 

The  appellant  assigns  several  «rrors,  which 
fairly  raise  the  question  of  the  sufficiency  of 
the  evidence  to  support  the  verdict  of  the 
sufficiency  of  the  verdict  to  support  the  judg- 
ment, and  complains  of  failure  to  submit  to 
the  Jury  a  question  proposed  by  defendant 
also  of  error  in  instructions  to  the  Jury.  The 
facts  in  evidence  show  that  the  baggage  room 
of  the  respondent  at  La  Crosse  Is  so  con- 
structed that  a  depression  or  pit  extends 
from  the  double  doors  at  the  west  side  of  the 
room  eastward  into  the  room  about  24  feet 
and  nearly  across  the  room.  This  Is  about 
2  feet  9  inches  In  deptti,  and  slightly  wider 
than  the  baggage  truck,  and  It  Is  used  for 
running  the  baggage  truck  Into  the  room  so 
that  the  platform  of  the  truck  will  be  prac- 
tically on  a  level  with  the  floor  of  the  room. 
This  is  ac  obvious  convenience  in  loading 


baggage  on  the  truck  and  transferring  the 
loaded'  truck  from  the  baggage  room  to  the 
platform  which  is  on  the  lower  level.  At 
both  Bides  and  at  the  end  of  this  pit  or  de- 
pression the  floor  of  the  baggage  room  is 
available  for  and  used  for  the  deposit  of 
baggage.  The  plaintiff  was  a  passenger  on 
defendant's  road,  and  went  into  the  baggage 
room  at  the  suggestion  of  the  defendant's 
employes  to  identify  her  t>aggage  and  liave 
the  same  checked.  She  then  had  some  con- 
versation with  the  baggageman,  and  left  for 
the  purpose  of  purchasing  a  lope  to  tie  op 
one  item  of  her  baggage  which  was  defect- 
ively fastened.  She  then  returned,  and  en- 
gaged in  conversation  with  the  baggage  mas- 
ter, while  one  of  the  assistants  of  the  Ia^ 
ter  was  tying  up  the  baggage  with  ttils  rope 
which  she  hron^t  with  lier.  She  wait  with 
ttie  baggage  master  across  the  baggage  room 
to  identify  her  luggage.  Near  where  she 
stood  there  was  a  truck  in  tlie  pit  or  depres- 
sion, and  she  accidentally  stepped  between 
the  edge  of  the  truck  and  the  edge  of  the  pit 
or  depression,  breaking  her  leg  and  sustain- 
ing Injuries.  She  had  not  noticed,  nor  had 
her  attention  been  called  to,  tlie  pit  de- 
pression or  truck  up  to  this  time.  The  tes- 
timony on  the  part  of  the  defendant  dif- 
fered materially  from  this,  but  the  forego- 
ing is  the  version  of  the  occurrence  estab- 
lished by  the  verdict 

Upon  tills  state  of  facts  the  defendant 
denies  the  right  of  the  plaintifT  to  recover 
damages  because  the  construction  of  the  bag- 
gage room  was  "an  engineering  problem," 
and  contends  that  Its  construction  and  main- 
tenance was  no  breach  of  duty  to  any  one; 
that  It  was  a  customary  and  usual  mode 
of  constructing  baggage  rooms  and  handling 
baggage  and  necessary  to  the  easy  and  con- 
venient operation  of  that  branch  of  the  car- 
rying business;  and  that  therefore,  the 
Jury  was  not  warranted  in  finding  that  the 
baggage  room  was  not  reasonably  safe.  To 
maintain  tills  contention  the  appellant  cites 
Boyd  y.  Harris,  176  Pa.  484,  35  Ati.  222: 
Tuttle  ▼.  Detroit  etc.,  Ry.  Co.,  122  U.  S. 
189,  7  Snp.  Ct  1166,  30  L.  Ed.  1114;  C. 
ft  G.  W.  Ry.  Co.  T.  Armstrong,  62  111.  App. 
228;  St.  Louis  Nat,  etc.,  Co.  v.  Bums,  07 
111.  App.  175;  C.  ft  E.  I.  Ry.  Co.  ▼.  Drls- 
coll,  176  111.  330,  52  N.  E.  921;  Titus  v. 
Bradford,  136  Pa.  618.  20  Atl.  617,  iO  Am. 
St  Rep.  944;  Bethlehem  I.  Co.  v.  Weiss, 
100  Fed.  45,  40  C.  C.  A.  270,  and  other  cases 
of  that  class.  These  cases  all  Involved  ques- 
tions arising  between  master  and  servant 
Generally  speaking,  and  without  reference 
to  special  statutes  or  exceptional  rules,  the 
law  confers  upon  the  master  the  right  to 
construct  and  maintain  his  own  property 
and  appliances  In  his  own  way  and  accord- 
ing to  his  own  Judgment,  and,  so  long  as 
there  Is  no  latent  or  hidden  danger  in  such 
construction  or  maintenance,  the  servant  ac- 
cepting employment  from  the  master  does 
so  subject  to  this  right  of  the  master,  and 


Digitized  by  VjOOQ  IC 


wis.) 


BATES  T.  CHICAGO.  M.  i,  ST.  P.  BT.  00. 


747 


assumes  the  risk  of  injury  from  the  open  and 
obvious  character  of  such  appliances.  Conse- 
quently in  such  cases,  where  the  defect  caus- 
ing the  injury  presents  a  mere  question  of 
this  kind,  courts  have  sometimes  designated 
it  as  a  mere  "question  of  engineering,"  mean- 
ing a  question  of  judgment  in  the  construc- 
tion of  the  appliance.  There  Is  no  legal  rule 
or  doctrine  by  force  of  which  a  court  or 
jury  is  disabled  from  deciding  a  cause  mere- 
ly because  in  such  decision  there  may  be 
Involved  "a  question  of  engineering."  The 
ezpreaslon  relates  to  a  condition  of  fact  per- 
tinent In  cases  between  master  and  servant, 
and  not  to  a  rule  of  law.  Tlie  rule  above 
stated  obtaining  between  master  and  servant 
and  relied  upon  by  appellant  has  no  appli- 
cation between  carrier  and  passenger,  which 
was  the  relation  of  the  parties  In  the  in- 
stant case.  As  to  the  respondent,  it  was 
the  duty  of  appellant  to  have  its  baggage- 
room  reasonably  saf&  Indemaur  v.  Dames, 
19  Eng.  Rul.  Cas.  84;  111.  Cent  R.  R.  Co. 
T.  Griffin,  80  Fed.  278,  25  0.  C.  A.  413; 
Banderob  v.  Wis.  Cent  Ry.  Co.,  133  Wis. 

249,  113  N.  W.  73a  Whether  or  not  the 
appellant  performed  this  duty  may  be  a 
question  of  law  or  a  question  of  fact,  and 
the  inquiry  in  the  instant  case  is  whether 
there  was  sulBclent  evidence  to  go  to  the 
jnry  on  this  point  It  is  the  duty  of  a  car- 
rier to  provide  reasonably  safe  depot  build- 
ings in  which  freight  and  property  trans- 
ported over  its  road  might  be  securely  stor- 
ed; and  facts  showing  the  character  and 
location  of  the  depot  buildings,  the  materials 
oat  of  which  it  was  built  and  its  liability 
to  take  fire  are  proper  to  be  laid  before  the 
jury  for  the  purpose  of  showing  that  the 
boildlng  was  not  reasonably  safe.  Whitney 
T.  O.  &  N.  W.  Ry.  Co.,  27  Wis.  827.  See, 
also,  Conroy  v.  Railway   Co.,  96  Wis.  243, 

250,  70  N.  W.  486,  88  L.  R.  A.  419.  WhUe 
It  la  the  duty  of  the  railroad  company  to 
have  its  depot  open  and  lighted  for  the  con- 
venience of  passengers  (Dowd  ▼.  Railroad 
Co.,  84  Wis.  105,  54  N.  W.  24,  20  li.  R.  A. 
527,  86  Am.  St  Rep.  917),  it  is  a  question 
for  the  jury  whether  under  the  circumstan- 
ces of  the  particular  case  the  railroad  com- 
pany was  negligent  in  failing  to  have  such 
lights.  Patten  v.  C.  &  N.  W.  R.  R.  Co.,  82 
Wis.  524.  Whether  a  railroad  company  pro- 
vided a  sufficient  platform  to  enable  pas- 
sengers to  descend  from  the  can  without 
danger  was  said  to  be  a  question  for  the 
Jury  in  Delamatyr  v.  M.  &  P.  du  C.  R.  R.  Co., 
24  Wis.  578;  and  a  like  ruling  was  made 
in  McDermott  v.  Railway  Co.,  82  Wis.  246, 
52  N.  W.  85,  where  several  cases  are  cited; 
and  see  Banderob  v.  Railway  Co.,  133  Wis. 
349,  113  N.  W.  738.  Whether  the  baggage 
room  constructed  as  described  was  reason- 
ably safe  for  the  use  of  passengers  claim- 
ing or  Identifying  baggage  therein  was  In 
the  case  at  bar,  we  think,  a  question  for 
the  Jnry,  notwithstanding  the  particular  de- 


fect which  rendered  It  unsafe  Inhered  In  a 
plan  of  the  room  deliberately  adopted  and 
used  at  La  Crosse  and  elsewhere  by  the  ap- 
pellant Not  that  the  Jury  may  at  its  will 
condemn  any  plan  or  building  as  not  rea- 
sonably safe,  but  facts  and  circumstances 
may  be  laid  before  them  tending  to  show 
that  the  building  is  dangerous  for  the  use 
to  which  It  is  put  by  the  carrier,  and  It  is 
for  the  court  to  say  whether  the  evidence 
has  any  such  tendency,  and  for  the  Jury  to 
pass  upon  its  weight  and  sufficiency.  No 
doubt,  if  the  baggage  room  so  constructed 
was  only  for  the  purpose  of  transferring 
baggage  to  and  from  outgoing  and  incoming 
trains  with  the  truck  described,  there  would 
be  no  evidence  of  its  insuffidoicy  for  that 
purpose,  but  when  it  is  also  used  as  a  place 
for  passengers  to  enter  and  walk  about  in 
for  the  purpose  of  identifying  baggage  at 
all  hours  and  under  all  conceivable  condi- 
tions of  congestion  of  baggage,  it  may  well 
be  found  to  have  been  so  constructed  as  to 
be  dangerous  to  those  passengers  so  using 
It  The  finding  of  the  jury  covers  both  con- 
struction and  maintenance,  and  the  mainte- 
nance of  this  unguarded  opening  in  a  bag- 
gage room  used  for  such  purposes  might 
well,  upon  the'  evidence  before  the  Jnry,  be 
found  to  constitute  a  failure  to  maintain 
the  baggage  room  in  a  reasonably  safe  con- 
dition. It  is  not  necessary  to  this  to  say 
that  a  barrier  or  railing  around  the  pit  or 
opening  would  destroy  or  impair  its  efficiency 
for  the  purpose  of  loading  or  unloading  and 
removing  baggage.  For  such  purposes  the 
baggage  room  was  reasonably  safe.  It  is 
only  when  the  additional  use  by  passengers 
for  the  purpose  of  Identification  is  added 
that  the  room  can  be  said  not  to  have  been 
reasonably  safe  for  such  additional  use. 
CriticlBm  upon  the  Instructions  to  the  jury 
because  such  instructions  permit  the  Jury  to 
consider  whether  or  not  the  appellant  was 
negligent  in  constructing  and  maintaining 
the  pit  in  question  are  disposed  of  by  these 
considerations. 

The  appellant  requested  the  court  to  sub- 
mit to  the  Jury  the  following  question  as 
part  of  the  special  verdict:  "Could  it  have 
been  reasonably  anticipated  that  the  accident 
in  question  would  have  occurred  at  the  time 
and  place  in  question?"  The  court  prop- 
erly refused  to  submit  this  question.  Its 
negation  would  have  determined  nothing. 
The  mere  fact  that  the  appellant  could  not 
have  reasonably  anticipated  the  speclilc  ac- 
cident at  the  particular  time  and  place  Is 
not  significant  The  inquiry  should  have 
been  whether  the  appellant  could  have  rea- 
sonably anticipated  that  an  injury  might 
probably  result  to  a  passenger  by  reason  of 
the  construction  and  maintenance  of  this 
baggage  room  used  as  It  was.  Coolldge  v. 
Hallauer,  126  Wis.  244,  105  N.  W.  568.  It  Is 
not  necessary  to  decide  whether  this  refusal 
would  have  been  error  if  the  question  was 
properly  drawn. 


Digitized  by 


Google 


H8 


122  NORTHWESTERN  REPORTER. 


(Wla. 


On  tbe  question  of  contributory  negligence, 
it  la  contended  tbat  the  respondent  must 
have  seen  and  ought  therefore  to  have  avoid- 
ed this  pit  or  depression,  and  that  her  tes- 
timony to  the  effect  that  she  did  not  see  it 
is  manifestly  impossible  and  untrue.  It  re- 
quires an  extraordinary  case  to  authorize  the 
court  to  80  dispose  of  sworn  testimony. 
Whether  the  respondent  saw  the  pit  or  not 
would  depend  on  the  amount  and  location 
of  the  baggage  in  the  room,  whether  there 
was  or  was  not  a  truck  in  the  pit,  how  she 
reached  her  baggage,  what  were  her  habits 
and  opportunities  of  obserratlon  In  many 
particulars,  and  we  cannot  say  tbat  her  tes- 
timony on  this  point  la  impossible.  Its 
weight  and  credibility  were  for  the  Jury. 
The  burden  of  proof  upon  this  point  was 
upon  the  appellant. 

The  jury  found  by  special  verdict  that  the 
baggage  room  was  not  reasonably  safe  for 
tbe  use  of  passengers  who  were  Invited 
therein  for  the  purpose  of  Identifying  and 
having  bagage  checlced,  and  that  this  was 
the  proximate  cause  of  respondent's  Injury, 
and  that  there  was  no  contributory  negli- 
gence on  the  part  of  the  respondent,  but  did 
not  expressly  find  defendant  negligent  or 
find  defendant  negligent  further  than  may 
be  Implied  from  the  above  findings.  The  ap- 
pellant did  not  request  that  this  question  of 
defendant's  negligence  be  submitted  to  the 
jury.  It  is  not  necessary  in  this  case  for 
the  court  ta  determine  whether  or  not  an  ex- 
press finding  of .  negligence  was  necessary  in 
addition  to  the  facts  above  found  In  order 
to  fix  the  liability  of  the  appellant,  because, 
If  such  finding  was  necessary  to  uphold  a 
recovery,  it  must  be  presumed  that  the  ap- 
pellant by  its  failure  to  request  its  submis- 
sion to  the  jury  waived  appellant's  right  to 
the  determination  of  that  question  by  the 
jury,  and  also  that  that  question  was  deter- 
mined adversely  to  the  appellant  by  the 
judgment  apx>ealed  from,  because,  as  we 
have  seen,  there  Is  evidence  to  support  such 
a  finding.  Chapter  346,  p.  571,  Laws  1907, 
being  section  2858m,  St.  1898,  changes  the 
rule  which  formerly  prevailed,  and  It  Is  now 
Incumbent  upon  attorneys  to  present  to  the 
trial  court  fairly  and  openly  requests  for  the 
submission  of  questions  of  fact  in  a  special 
verdict  If  by  Inadvertence  or  finesse  they 
fall  to  do  so,  being  present  and  having  op- 
portunity, they  thereby  waive  the  right  to 
have  the  jury  pass  upon  that  particular  Item 
of  fact,  and  the  court  rendering  Its  judg- 
ment adversely  to  th«n  (if  the  conrt  does 
so  render  judgment)  necessarily  resolves  that 
fact  against  them. 

Respondent's  counsel  cites  chapter  192,  p. 
206,  Laws  1909,  to  us  for  the  purpose  of 
showing  that  the  judgment  In  his,  favor 
should  not'  be  reversed  or  set  aside  except  as 
therein  provided.    The  statute  Is  as  follows : 


"No  judgment  shall  be  reversed,  set  aside,  or 
new  trial  granted  in  any  action  or  proceed- 
ing, civil  or  criminal,  on  the  ground  of  mis- 
direction of  the  jury  or  the  Improper  admis- 
sion of  evidence  or  for  error  as  to  any  mat- 
ter of  pleading  or  procedure  unless  In  the 
opinion  of  the  court  to  which  the  application 
is  made,  after  an  examination  of  the  entire 
action  or  proceeding,  it  shall  appear  that  the 
error  complained  of  has  afTected  the  substan- 
tial rights  of  the  party  seeking  to  reverse 
or  set  aside  the  judgment  or  to  secure  the 
new  triaL"  It  Is  not  quite  dear  what  change 
this  act  makes  in  the  rules  adopted  and  act- 
ed upon  by  this  court  long  prior  to  the  pas- 
sage of  the  act  See  Franke  v.  Mann,  10& 
Wis.  118,  81  N.  W.  1014,  48  L.  R.  A.  850,  and 
Mauch  V.  Hartford.  112  Wis.  40,  87  N.  W. 
81C.  The  cases  applying  and  announcing 
those  rules  are  too  numerous  to  be  cited. 
Eighty  Instances  of  this  kind  will  be  found 
cited  and  referred  to  under  the  title  "Ap- 
peals and  Errors,"  substitle  11  "Harmless 
and  Immaterial  Errors,"  Cumulative  Index 
Digest  for  September,  1908,  which  merely 
covers  the  work  of  this  court  from  122  Wis. 
to  115  N.  W.  Rep.,  Inclusive.  Whether  this 
act  of  1909  changes  the  rule  stated  in  Dress- 
er V.  Lemma,  122  Wis.  387,  100  N.  W.  844, 
to  the  effect  that.  If  error  Is  committed, 
prejudice  is  presumed  to  flow  therefrom,  and 
whether  that  rule  so  stated  la  consistent 
with  Franke  v.  Mann,  106  Wi&  118,  81  N. 
W.  1014,  48  L.  R.  A.  856,  which  declares 
that  not  only  error  but  prejudicial  error 
must  be  made  to  appear  affirmatively,  or 
consistent  with  other  decisions  of  this  court, 
and  how  far,  if  at  all,  the  act  of  1909  ex- 
tends the  existing  provisions  of  section  2829, 
St  1898,  has  not  been  discussed  by  counsel, 
and  we  reserve  the  decision  of  these  ques- 
tions for  some  case  in  which  they  are  neces- 
sarily Involved  and  thoroughly  presented. 

The  judgment  of  the  circuit  court  1b  af- 
firmed. 

WINSLOW,  C  J.,  took  no  part 


STATE  ex   rel.   WAGNER  v.  DAHL,   Stato 
Treasurer. 

(Supreme  Court  of  Wisconsin.     Oct  5,  1909.) 

1.  Officers  (8  7*)  —  Rkmoval  —  iHcinKNT  or 
Appointment. 

Where  no  definite  term  of  office  is  fixed  by 
law,  the  power  to  remove  an  incumbent  is  an 
incident  to  the  poner  to  appoint  in  tbe  absence 
of  coDBtitutional  or  statutory  provision  to  the 
contrary. 

[Ed.  Note.— For  other  cases,  see  Officers,  Cent 
Dig.  §»  8,  9;    Dec.  Dig.  «  7.*] 

2.  Officers  (|  77*)— Constitdtionai.  Tjaw  Q       • 
102*)— Natobb  or  Office— yxsTXD  Riokt. 

An  office  is  not  a  property  right  nor  ia 
the  right  to  hold  It  a  vested  one. 

[EM.  Note. — For  other  cases,  see  Officers,  Cent 
Dig.  {  109;  Dea  Dig.  I  77  ;•  Constltutiona] 
Law,  Gent  Dig.  {  366;   Dea  Dig.  i  102.*] 


*For  oUier  caa««  tee  lame  topic  and  lectlon  NUUBBR  In  Dec.  *  Am.  Die*.  ISO?  to  data,  tc  Reporter  Ind«ze 


Digitized  by  LjOOQ  IC 


Wla.) 


STATE  T.  DAHL. 


749 


8.  OmcEBa  (|  72*)  —  AMonow  —  Natubk  of 

POWEB. 

The  power  of  amotion  from  office  ii  not  a 
iadicial  bnt  an  administratlTe  power,  though 
It  be  exercised  in  a  judicial  manner. 

[Ed.  Note.— For  other  cases,  see  Officers,  Dec. 
Dig.  i  72.*] 
4.  Officcbs  ({  72*)  —  Removai,  —  Rbview  bt 

Court. 

Where  a  new  richt  Is  created  by  statute, 
and  the  statute  provides  a  method  by  special 
tribunal  for  the  enforcement  or  protection  of 
the  right  and  malces  no  provision  for  a  review 
of  the  decision  of  the  tribunal,  the  remedy  given 
is  ezclnsive,  provided  the  tribunal  acts  within 
its  jurisdiction,  and  hence  under  Laws  1905, 
p.  582,  c.  363,  i  22,  providinp;  that  no  subordi- 
nate or  employi  In  certain  civil  service  classes 
appointed  under  Uie  act  shall  be  removed  except 
for  just  cause,  and  that  the  appointing  officer 
shall  upon  removing  him  fumian  his  reasons  and 
allow  him  time  for  explanation,  which  vests 
the  power  of  removal  in  the  appointing  officer, 
with  no  provision  for  reviewing  his  decision, 
where  a  bookkeeper  In  the  State  Treasurer's  of- 
fice was  removed  by  the  Treasurer,  his  action 
conld  not  be  reviewed  by  the  courts  where  he 
acted  within  his  jurisdiction. 

[Ed.  Note.— For  other  cases,  see  Officers,  Dec. 
Dig.  S  72.»] 

6.  MaRDAUUS  (i  28*)— OBOURD8— BZEBCISK  OF 
DlSCBKTION— JlTDICIAI.  ACTS. 

While  mandamus  may  be  invoked  to  compel 
the  discretion  of  a  court,  body,  or  officer  in  a 
judicial  or  quasi  judicial  act  to  be  exercised, 
it  does  not  lie  to  control  or  review  the  exercise 
of  the  discretion. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Cent.  Dig.  |  64;   Dec.  Dig.  g  28.*] 
H.  Evidence  (8  83*)— Pbesumptions— Obedi- 
ence TO  Laws. 

The  presumption  is  that  pnblie  officers  will 
not  wantonly  ana  criminally  violate  the  laws. 

[Ed.  Mote.— For  other  cases,  see  Evidence, 
Cent.  Dig.  I  106 ;   Dec.  Dig.  {  83.*] 

Appeal  from  Circuit  Court,  Dane  County; 
B.  Ray  Stevens,  Judge. 

Maudamus  by  the  State,  on  the  relation  of 
Adolph  H.  Wagner,  against  Andrew  H.  Dahl, 
as  Treasurer  of  the  State  of  Wisconsin. 
Judgment  for  defendant,  and  relator  appeals. 
Afflrmed. 

The  relator  was  employed  as  bookkeeper 
In  the  office  of  the  State  Treasurer,  and  was 
-discharged  from  his  employment  by  that 
officer.  Incompetency  and  insubordination 
were  the  causes  assigned  for  lila  removal. 
Relator  procured  an  alternative  writ  of  man- 
damus ordering  the  defendant  to  reinstate 
bim  in  his  employment,  or  show  causb  why 
be  should  not  be  reinstated.  Such  writ  was 
granted  on  a  petition  in  which  the  relator 
set  forth,  among  other  things,  that  he  was 
neither  Incompetent  nor  Insubordhiate.  The 
-defendant,  by  his  return  to  the  writ,  justi- 
fied .his  action  on  the  grounds  stated.  The 
Issues  made  up  by  the  petition  for  the  writ 
and  the  return  and  the  answer  thereto  were 
submitted  to  a  jury  for  determination.  The 
Jury  found  that  the  relator  was  Incompetent, 
and  that  he  did  not  perform  all  the  lawful 
'directions  given  him  by  his  superiors  in  the 
offlee  of  the  State  Treasurer.    Judgment  was 


entered  on  such  rerdict  In  favor  of  the  de- 
fendant. To  review  alleged  errors  in  the 
trial  of  the  action  the  relator  brings  this  ap- 
peal. 

Miner  tc  Blver,  for  appellant  Jones  ft 
Schubring,  for  respondoit 

BARNES,  J.  (after  stating  the  facts  as 
above).  It  is  a  well-nigh  universal  rule  that, 
where  no  definite  term  of  office  is  fixed  by 
law,  the  power  to  remove  an  incumbent  is 
an  incident  to  the  power  to  appoint,  in  the 
absence  of  some  constitutional  or  statutory 
provision  to  the  contrary.  In  re  Hennen, 
18  Pet.  230,  10  L.  Ed.  136,  Parsons  ▼.  U.  S., 
167  U.  S.  324,  17  Sup.  Ct  880,  42  L.  Ed.  185, 
and  collection  of  cases  In  37  Cent.  Dig.,  title 
"Officers,"  !  9,  and  in  29  Cyc,  same  title,  p. 
1371,  note  72.  Our  law  does  not  regard  an 
office  as  a  property  right  Neither  Is  the 
right  to  hold  office  a  vested  one.  State  ex 
rel.  T.  Superior,  90  Wis.  612,  619,  64  N.  W. 
304;  State  ex  rel.  v.  Houser,  122  Wis.  534, 
603,  100  N.  W.  064.  The  power  of  amotion 
from  office  is  not  a  judicial  power,  but  is 
an  administrative  one,  though  it  l>e  exercised 
In  a  judicial  manner.  State  ex  rel.  v.  Su- 
perior, supra ;  State  ex  rel.  y.  Houser,  supra ; 
Nehrling  y.  State,  112  Wis.  637,  645,  88  N. 
W.  610. 

It  is  clear  that  the  limitations  on  the  pow- 
er of  removal  by  the  Treasurer,  if  they  exist, 
must  be  found  in  some  statute  or  statutes 
of  the  state,  and  the  only  one  which  it  is 
claimed  affecte  the  question  Is  section  22,  c. 
363,  p.  682,  Laws  1905,  which  reads  as  fol- 
lows: "No  subordinate  or  employe  in  the 
competitlye  class,  noncompetitive  class,  or 
the  labor  class  of  the  civil  service  of  the 
state,  who  shall  haye  been  appointed  under 
the  provisions  of  this  act,  or  the  rules  made 
pursuant  thereto,  shall  be  removed,  suspend- 
ed for  more  than  fifteen  days,  discharged  or 
reduced  In  pay  or  position,  except  for  just 
cause,  Trhich  shall  not  be  religious  or  politi- 
cal. In  all  cases  of  removal  the  appointing 
officer  shall,  at  the  time  of  such  action,  fur- 
nish to  the  subordinate  his  reasons  for  the 
same  and  allow  him  a  reasonable  time  in 
which  to  make  an  explanation.  The  reasons 
for  removal  and  the  answer  thereto  shall  be 
filed  In  writing  with  the  commission."  It 
will  be  obseryed  that  the  Treasurer,  under 
the  provisions  of  the  law  quoted,  might  not 
remove  a  subordinate  except  for  just  cause, 
and  that  such  cause  should  not  be  religious  or 
political.  The  statute  makes  no  provision 
for  any  review,  by  any  other  body  or  tribu- 
nal, of  the  action  of  an  appointing  officer 
In  removing  a  subordinate.  The  Important 
question  in  the  case,  therefore,  is  the  de- 
termination of  how  far  and  to  what  extent 
the  courta  have  authority  or  Jurisdiction  to 
review  the  act  complained  of  by  the  re- 
lator. 


*For  other  cuei.iee  tame  topic  and  lecUoa  NUMBER  Is  Dec.  ft  Am.  Dig*.  1907  to  date,  A  Reporter  TndexM 


Digitized  by  VjOOQ  l€ 


750 


122  NORTHWESTERN  REPORTER. 


(WiB. 


In  State  ex  rel.  t.  Watertown,  9  Wis.  254, 
the  statute  under  conalcleration  authorized 
the  common  council  of  the  city  to  remove 
certain  officers  for  "due  cause."  No  provi- 
sion was  made  for  an  appeal  from  or  review 
of  the  decision  of  the  common  councU.  It 
was  held  that  what  constituted  due  cause 
was  a  question  of  law  to  be  determined  by 
the  courts,  but  that  the  discretion  vested  In 
and  exercised  by  such  a  body  or  tribunal 
would  not  be  controlled  by  mandamus.  In 
other  words,  it  was  held  that  the  courts 
would  decide  whether  the  cause  assigned  for 
removal  was  "Just  cause"  within  the  mean- 
ing of  the  law,  but  would  not  determine 
whether  the  council  was  right  or  wrong  in 
its  conclusions  upon  the  facts  that  the  cause 
assigned  for  removal  In  fact  existed.  State 
ex  rel.  v.  McGarry,  21  Wis.  406,  involved  the 
removal  of  an  inspector  of  the  house  of  cor- 
rection by  the  board  of  supervisors  of  Mil- 
waukee county.  The  statute  authorized  the 
removal  for  "Incompetency,  Improper  con- 
duct, or  other  cause  satisfactory  to  said 
board."  The  resolution  removing  the  in- 
spector recited  that  be  was  removed  for  "in- 
competency. Improper  conduct,  and  disobedi- 
ence of  the  orders  of  the  board."  No  provi- 
sion was  made  In  the  law  for  a  review  of 
the  decision  of  the  county  board.  It  was 
held  (1)  that  the  power  of  the  board  to  dis- 
charge was  absolute,  and  its  determination 
was  final  when  acting  within  the  scope  of 
Its  power;  (2)  that  if  the  board  should  at- 
tempt to  discharge  for  a  cause  not  recognized 
by  law,  and  not  affecting  the  competency  or 
the  fitness  of  the  employ^,  such  action  would 
te  an  excess  of  power,  and  not  a  removal  un- 
der the  statute,  and  would  be  equivalent  to  a 
removal  without  cause — a  mere  arbitrary  re- 
moval not  warranted  by  statute;  (8)  that 
when  a  cause  recognized  by  statute  Is  as- 
signed, the  power  to  determine  whether  It 
exists  or  not  Is  vested  exclusively  in  the 
board,  and  its  decisions  on  the  facts  cannot 
be  reviewed  by  the  courts ;  (4)  that  the  only 
question  for  Judicial  cognizance  was  wheth- 
er the  cause  assigned  for  removal  was  one 
for  which  removal  might  be  made  under 
the  statute.  State  ex  rel.  v.  Prince,  46  Wis. 
610,  Involved  the  removal  of  the  county  clerk 
of  Ashland  county  under  a  statute  (section  6, 
c.  14,  Rev.  St.  1858)  which  authorized  the 
county  board  to  remove  such  an  officer 
"when.  In  their  opinion,  he  is  incompetent  to 
execute  properly  the  duties  of  his  office,  or 
when,  on  charges  and  evidence,  it  shall  ap- 
pear to  said  board  that  he  has  been  guilty 
of  official  misconduct,  or  habitual  or  willful 
neglect  of  doty,  if,  in  the  opinion  of  said 
board,  such  misconduct  or  neglect  shall  t>e 
a  sufficient  cause  for  removal."  The  court 
said  that  the  statute  gave  a  wide  discretion 
to  boards  of  supervisors,  which  "will  not  be 
revised  or  controlled  except  in  most  clear 
And  conclusive  cases  of  abuse."  The  pro- 
<-iH>dtng  was  one  of  quo  warranto,  and  the 


court  further  held  that  the  only  questions  It 
would  consider  were:  "Had  the  board  of 
supervisors  Jurisdiction,  and  did  they  make 
the  proper  order  and  a  final  adjudication  In 
the  case,  and  were  the  records  produced  suf- 
ficient evidence  of  both?"  This  case  is  an 
extreme  one  in  Ylew  of  the  provisions  of 
chapter  163,  p.  218,  Laws  1869,  which  gave 
the  county  clerk  a  right  to  anieal  from  the 
order  removing  him,  and  which  seemed  to 
contemplate  that  he  should  have  a  trial  de 
novo  in  court  In  State  ex  rel.  v.  Houser, 
supra,  the  construction  of  section  35,  St. 
1898,  was  involved.  In  the  event  of  two 
conventions  of  the  same  party  being  held, 
the  Secretary  of  State  was  required  to  give 
preference  in  designation  on  the  official  bal- 
lot to  the  nominees  certified  by  the  state 
central  committee.  The  statute  did  not  pro- 
vide for  any  review  of  the  action  of  such 
committee  in  making  its  certification.  The 
right  of  the  court  to  review  the  decision 
of  the  committee  was  combated,  and  it  was 
held  that  where  a  new  right  is  created  by 
statute  and  the  statute  provides  a  method 
by  special  tribunal  for  the  enforcement  or 
protection  of  such  right,  and  makes  no  provi- 
sion for  a  review  of  the  decision  of  such 
tribunal,  the  remedy  given  is  exclusive,  pro- 
vided the  tribunal  acts  within  its  Jurisdic- 
tion. Op.  Justice  Marshall,  page  670  of  122 
Wis.  (100  N.  W.  975),  and  of  the  present  Chief 
Justice,  page  595  of  122  Wis.  (100  N.  W.  984). 
Such  is  the  law  elsewhere  generally.  Mil- 
ler V.  Clark,  62  Kaa  278,  62  Pac.  664: 
Chapman  v.  Miller,  62  Ohio  St  166,  39  N.  E. 
24 ;  People  v.  Roosevelt  151  N.  Y.  369,  45  N. 
B.  840;  People  v.  District  Court  32  Colo. 
16,  74  Pac.  896;  State  v.  Abbay,  82  Miss. 
659,  86  South.  153;  State  v.  Crittenden. 
164  Mo.  237,  64  S.  W.  162.  We  have  in  this 
case  a  right  created  by  statute  by  which 
certain  state  employes  may  not  be  discharg- 
ed except  for  Just  cause,  and  the  power  of 
removal  for  such  cause  la  vested  in  the  ap- 
pointing officer,  with  no  provision  In  the 
law  for  reviewing  his  decision,  so  that  the 
situation  ia  similar  to  tliat  before  the  court 
in  State  ex  reL  v.  Houser,  supra. 

The  Instances  are  numerous  where  public 
officers,  public  boards  and  nonjudicial  bodies 
are  required.  In  the  performance  of  their  du- 
ties, to  pass  upon  and  decide  questions  of 
fact  Various  state  officers,  boards  of  review, 
commissioners  in  laying  out  highways,  the 
board  of  dental  examiners,  the  board  of  con- 
trol, the  board  of  regents,  and  numerous  oth- 
er kindred  bodies  that  might  be  mentioned 
fall  within  the  category.  In  the  absence  of  a 
statute  giving  the  right  to  review  on  Uie  mer- 
its, errors  In  Judgment  committed  by  such 
persons  or  bodies  will  not  be  reviewed  by  the 
courts.  The  ultimate  decision  on  questions 
of  fact  must  rest  somewhere,  and,  when  the 
question  presented  is  one  pertaining  to  legis- 
lative rights  and  privileges,  the  decision  of 
',  the  spectnl  tribunal  appointed  to  decide  the 


Digitized  by  VjOOQ  l€ 


Wla.) 


STATE  V.  KOSE. 


761 


question  Is  flnal,  If  it  acts  within  Its  juris- 
diction and  not  arbitrarily,  and  no  review  is 
provided  for.  State  ex  rel.  v.  Crittenden,  112 
Wis.  668,  88  N.  W.  S87;  State  ex  rel.  v. 
Wharton,  117  Wis.  558, 5*4  N.  W.  859 ;  State 
ex  rel.  v.  Losby,  115  Wis.  57,  90  N.  W.  188; 
State  ex  rel.  v.  Lawler,  103  Wis.  460,  79  N. 
W.  777;  State  ex  rel.  v.  Williams,  123  Wis. 
61,  100  N.  W.  1048.  Moreover,  the  cases  bold 
that  mandamus  will  not  He  to  control  or  re- 
view the  exercise  of  the  discretion  of  any 
court,  body,  or  officer  when  the  act  perform- 
ed is  jadidal  or  quasi  Judicial.  While  man- 
damus may  be  invoked  to  compel  the  exercise 
of  the  discretion  vested,  it  cannot  compel 
such  discretion  to  be  exercised  in  any  par- 
ticular way.  State  ex  rel.  ▼.  Ahnapee,  99 
Wis.  322,  326,  74  N.  W.  783 ;  State  ex  rel.  v. 
Johnson,  103  Wis.  591,  622,  79  N.  W.  1081, 
51  L.  R.  A.  33 ;  State  ex  rel.  v.  GUJohann,  111 
Wis.  377,  386,  87  N.  W.  245 ;  State  ex  rel.  v. 
Crittenden,  112  Wis.  574,  88  N.  W.  587;  State 
ex  rel.  ▼.  Wilson,  121  Wis.  623,  626,  99  N.  W. 
336;  State  ex  rel.  v.  Hutchinson,  134  Wis. 
283,  287, 114  N.  W.  453 ;  State  ex  rel.  v.  May- 
or, etc.,  134  Wis.  437,  442,  114  N.  W.  802; 
State  ▼.  Rose  (decided  herewith)  infra. 

We  can  see  nothing  in  the  civil  service  law 
that  would  warrant  giving  It  any  other  or 
different  construction  from  that  almost  uni- 
formly given  to  other  acts  involving  situa- 
tions similar  to  the  one  presently  under  con- 
nideration.  The  purpose  of  the  Legislature 
In  passing  the  act  was  apparent  We  do  not 
perceive  bow  the  conclusion  reached  will  op- 
erate to  defeat  or  impair  that  purpose.  It  is 
not  to  be  presumed  that  officers  to  whom  the 
people  of  the  state  have  intrusted  important 
public  functions  will  violate  their  oaths  of 
office  and  become  perjurers  because  they  may 
want  to  remove  one  employ^  to  make  place 
for  another.  In  case  of  removal,  the  right  of 
selection  la  ordinarily  limited  to  choosing  a 
successor  from  one  of  three  names  certified 
by  the  civil  service  commission.  The  pre- 
sumption is  that  public  officers  will  obey  the 
laws,  and  not  wantonly  and  criminally  vio- 
late them,  and  the  Legislature  may  well  have 
had  in  mind  the  advisability  of  placing  the 
absolute  power  of  discharge  for  Just  cause  in 
the  heads  of  departments,  so  that  a  high  de- 
gree of  efficiency  and  discipline  might  be 
ooaintatned,  and  the  public  business  might  be 
transacted  with  accuracy  and  with  reason- 
able promptness.  The  causes  for  removal  as- 
signed by  the  State  Treasurer  in  the  present 
case  were  Just  causes  for  removal  within 
the  meaning  of  section  22,  c.  363,  p.  582,  Laws 
1906.  The  Treasurer  acted  within  his  Juris- 
diction In  making  the  removal  for  the  cause 
specified,  and  there  Is  nothing  to  show  that 
he  acted  arbitrarily,  or  otherwise  than  in 
perfect  good  faith.  In  making  it  Whether  he 
was  right  or  wrong  In  reaching  the  conclu- 
sion which  he  did  on  the  facts  is  not  a  ques- 
tion for  the  courts  to  decide.    The  decision  of 


that  question  has,  wisely  we  think,  been  left 
with  the  Treasurer,  and  not  with  the  courts. 
Indeed,  the  question  discussed  has  been  so 
frequently  decided  that  a  mere  citation  of 
the  authorities  should  suffice. 

It  follows  that  the  motion  of  the  defend- 
ant to  take  the  case  from  the  Jury  and  dis- 
miss the  action  should  have  been  granted. 
This  view  of  the  case  renders  the  errors  com- 
plained of  on  the  trial  immaterial  with  one 
exception.  Objection  was  made  to  the  allow- 
ance of  witness  fees  paid  two  Jurors,  amount- 
ing to  $6.60,  for  attendance  upon  the  hearing 
of  the  motion  for  a  new  trial,  which  was  in 
part  based  on  alleged  misconduct  of  one  of 
the  Jurors.  We  think  the  items  were  prop- 
erly taxed,  and  that  the  Judgment  appealed 
from  Is  correct 

Judgment  affirmed. 

WINSLOW,  C.  J.,  and  TIMLIN,  X,  took 
no  part 


STATE  «  rel.  DA  VEEN  v.  ROSE,  Mayor. 
(Snpreme  Court  of  Wisconsin.     Oct  5,  1009.) 

1.  CoNBTrrnTiONAi.  Law  (|   73*)— JnniciAi. 

POWEB— EXECDTIVK    DlSCBETIOR— INTERFER- 
ENCE OF  Court. 

The  courts  cannot  interfere  with  the  ex- 
ercjse  of  discretion  committed  to  state  and  mu- 
nicipal administrative  officers. 

[Ed.  Note.— For  other  cases,  see  Constitution- 
al Ivaw,  Cent  Dig.  §|  134^137 ;   Dec.  Dig.  $  73.*] 

2.  OmcERS  (8  103*)— Performance  of  Dd- 
TiES— Conclusiveness  of  Decision. 

No  legal  wrong  results  when  one  receives 
all  that  the  law  accords  him;  and  hence,  when 
the  only  right  of  an  individual  or  the  public 
which  the  law  gives  is  that  which  a  designated 
oificer  deems  best,  the  honest  decision  of  that 
officer  Is  the  measure  of  the  right. 

[Ed.  Note.— For  other  cases,  see  Officers,  Dec 
Dig.  S  103.»] 

3.  CoNsnTunoNAL  Law  (|  74*)  —  Judiciai, 
Power— MiNiBTEBiAL  Officers  —  Enforce- 
ment OF  Duty. 

Where  the  Legislature  has  imposed  npon 
executive  and  administrative  officers  an  absolute 
duty  involving  nothing  of  judgment  or  discre- 
tion, the  minuterial  duty  may  be  enforced  by 
the  courts  if  there  is  no  other  adequate  method 
provided. 

[Ed.  Note.— For  other  cases,  see  Constitution- 
al Law,  Cent  Dig.  $  124 ;   Dec.  Dig.  {  74.*] 

4.  Municipal  Corporations  ((  168*) — Offi- 
cers—Mayor— Nature  OF  Duties. 

A  city  charter  declared  that  the  mayor 
should  be  "the  chief  executive  officer  and  the 
bead  of  the  flre  department  and  of  police  in 
said  city,"  and  that  he  should  "take  care  that 
the  laws  of  the  state  and  the  ordinances  of  the 
city  are  dnly  observed  and  enforced."  field, 
that  it  conferred  all  the  powers  of  a  chief  ex- 
ecutive with  the  necessary  right  of  discretion 
and  judgment 

[Ed.  Note. — For  other  esses,  see  Municipal 
Corporations,  Cent.  Dig.  {  376;  Dec.  Dig.  I 
168.*] 

5.  Officers  (|  103*)  —  BzxounvB  Power  — 
Scope. 

Executive  power  as  conferred  upon  officers 
by  constitutions  and  city  charters  includes  ibe 


•For  otb«r  casM  ■«•  same  topio  and  iMtloa  NITHBBR  In  Dec.  ft  Am.  Dls*.  1907  to  date,  *  Reporter  IndexM 


Digitized  by  VjOOQ  l€ 


752 


122  NORTHWESTERN  REPORTER. 


(Wlfc 


power  to  appoint  and  remoTe  subordinate  ex- 
ecntive  officers  at  discretion,  except  aa  qualified 
by  other  expressions. 

[Ed.  Note.— For  other  cases,  see  0£Scers,  Cent. 
Dig.  S§  163-175;    Dec  Dig.  }  103.»] 

6.  Mdnicipai,  Gobpobations  (S  152*)— Oiti- 
CEKS  —  Mayor  —  PowEB  or  Suspension  of 
Offickbb— Revikw. 

Lews  1885,  p.  1251,  c.  378,  establishing  a 
fire  and  police  commission.  Tested  in  the  com- 
mission the  appointment  and  removal  of  the 
chiefs  of  the  fire  and  police  departments,  but  sec- 
tion 11  provided  that  the  chief  of  police  and  the 
chief  of  the  fire  department,  etc,  should  be  sub- 
ject to  suspension  from  office  for  cause  by  the 
mayor  at  any  time  pending  charges  by  the  com- 
mission. Held,  that  the  power  of  suspension 
was  discretionary  in  a  high  degree,  permitting 
the  mayor  to  look  not  alone  to  the  charges,  but 
to  the  necessities  of  the  community,  and  his 
decision  not  to  exercise  the  power  in  a  given 
case  was  not  subject  to  review  or  direction  by 
the  courts  where  there  was  not  an  entire  refusal 
to  consider  and  exercise  discretion. 

[EM.  Note.— For  other  cases,  see  Municipal 
Corporations,   Cent.   Dig.   (  340;    Dec   Dig.  I 

7.  Municipal  Gobpobations  (§  152*)— Ofpi- 
CEBS  —  Matob  —  PowKE  gp  Suspension  op 

OXTICEBS. 

The  mayor  need  not  declare  his  reasons  for 
liis  decision  or  his  action  in  deciding  against  sus- 
pension, it  being  enough  for  him  to  declare  that 
be  deems  the  public  welfare  promoted  by  action 
or  inaction,  wnich  declaration,  indeed,  need  only 
be  by  the  act 

[Ed.  Note.— For  other  cases,  see  Municigal 
Corporations,  Cent  Dig.  {  840;  Dec.  Dig.  { 
152.*] 

8.  Evidence  (§  83*)  — Pbesumptions  — Good 
Faith  or  Executive  Offices  in  Pebfobu- 
iNo  Duties. 

Courts  must  indulge  in  eveir  prima  facie 
presumption  in  favor  of  the  good  faith  of  an  ex- 
ecutive officer  in  the  discharge  of  his  duties  as 
such. 

[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent  Dig.  {  105;   Dec  Dig.  {  83.*] 

9.  Mandaitub  a  168*)--Gbound8— Refusal 
BT  Offices  to  Ezebt  Dibcbbtion. 

It  is  only  when  it  appears  by  the  clearest 
possible  evidence  that  an  executive  officer  has 
wholly  refused  to  exert  his  jurisdiction,  or  to 
exercise  any  discretion  whatever,  that  manda- 
mus will  lie  to  compel  him  to  act. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Cent  Dig.  i  874;   Dec  Dig.  i  168.*] 

Appeal  from  Circuit  Court,  Milwaukee 
County;    W.  J.  Turner,  Judge. 

MandamuB  by  the  State,  on  tbe  relation  of 
James  P.  Davem,  against  David  S.  Rose, 
Mayor  of  Milwaukee.  An  altematlye  writ 
was  issued,  and  respondent  appeals.  Revers- 
ed and  remanded,  with  directions  to  quash 
the  alternative  writ,  and  to  dismiss. 

Mandamus.  Relator  asserts  himself  to  b« 
a  cltizea  and  taxpayer  of  the  city  of  Mil- 
waukee, and  that  he  petitions  on  behalf  of 
himself  and  all  others  similarly  situated,  as- 
serts various  acts  of  misconduct  on  tbe  part 
of  the  chief  engineer  of  the  fire  department 
of  said  city,  and  that  in  September,  1908, 
he  filed  with  the  respondent,  then  and  now 
mayor  of  the  <Aty  of  Milwaukee,  certain 
charges  of  such  misconduct;   that  thereupon 


said  respondent  called  to  his  office  a  large 
number  of  tbe  members  of  the  Are  depart- 
ment, and  took  their  ex  parte  oral  state- 
ments, and  thereupon  refused  to  suspend  said 
chief  or  to  send  such  charges  to  the  board 
of  fire  and  police  commissioners  for  investi- 
gation, on  the  ground,  as  stated  by  respond- 
ent, that  said  charges  were  too  flimsy  to  re- 
ceive serious  consideration.  The  charges  con- 
sist principally  in  that  some  or  three  years 
before  said  chief  temporarily  misappropriat- 
ed certain  funds  under  hia  official  control; 
that  he  committed  perjury,  for  which  he  was 
indicted,  tried,  and  acquitted  in  1007;  that  at 
that  time  he  was  also  guilty  of  subornation 
of  perjury;  that  at  some  times  not  named 
the  labor  of  certain  dty  employes,  and  also 
certain  city  property,  was  under  said  chiefs 
command  expended  for  his  private  benefit; 
that  he  appointed  a  man  upon  the  fire  force 
because  of  personal  pecuniary  obligation  to 
him  instead  of  fitness;  that  immediately  aft- 
er filing  such  charges  against  him  he  dis- 
charged several  of  the  members  of  the  flre 
department;  and  other  things  not  deemed 
material  for  statement.  The  respondent  mov- 
ed to  quash  the  alternative  writ  issued  upon 
said  petition  (1)  for  insufficiency  of  the  mat- 
ter therein  stated  to  warrant  a  writ  of  man- 
damus; and  (2)  for  defect  of  parties  re- 
spondent by  reason  of  tbe  nonjoinder  of  tbe 
chief.  The  motion  to  quash  was  denied, 
from  which  action  this  appeal  Is  brought  by 
respondent 

Jolrn  T.  Kelly,  City  Atty.  (Walter  H.  Ben- 
der, Asst  City  Atty.,  of  counsel),  for  ap- 
pellant Ryan,  Ogden  &  Bottum  (Hugh  Ry- 
an, of  counsel),  for  respondent 

DODGE,  J.  (after  stating  ttie  facts  as 
above).  With  a  debated  question  of  defect 
of  parties  we  shall  not  concern  ourselves, 
since  the  view  we  have  taken  upon  the  gen- 
eral merits  of  this  case  renders  it  immate- 
rial to  the  result. 

Tbe  general  plan  of  the  government  of  the 
state,  either  generally  or  in  such  sections  as 
Its  municipal  corporations,  is  framed  upon 
the  theory  of  intrusting  to  the  legislative 
and  executive  branches,  and  administrative 
officers  appointed  within  them,  the  formula- 
tion of  policy  and  the  execution  thereof  by 
officials,  constitutional  or  legislative,  in  whom 
is  vested  the  discretion  as  to  what  will  be 
most  promotive  of  the  welfare  of  the  com- 
munity. In  general  that  policy  Is  decided  by 
the  Legislature,  in  detail  it  must  in  many 
respects  be  left  to  the  individual  officials  act- 
ing upon  their  knowledge  of  sp^lflc  situations 
and  their  Judgment  as  to  wBat  the  public 
good  Inquires  in  those  specific  instances. 
Those  officers  are  selected  either  by  the  peo- 
ple directly,  or  by  some  other  method  con- 
sidered likely  to  procure  the  persons  best 
qualified  in  Judgment,  character,  and  ability 


•For  other  c«Bei  «ea  luna  topio  and  tacUoa  NUMBER  In  Deo.  *  Am.  Dlgi.  U97  to  date,  ft  RaporMr  Iad«x«i 


Digitized  by 


Google 


WlB.) 


STATE  T.  ROSE. 


753 


to  perform  their  respective  duties.  Tliey 
take  their  places  as  public  oflScers  under  the 
sanction  of  an  oath  of  office,  and  under  the 
burden  of  a  trust  as  binding  and  transcend- 
ent as  do  the  Judges  of  the  courts.  Their 
selection  either  by  the  people  themselves  di- 
rectly or  by  their  authorized  representatives 
carries  with  it  declaration  of  the  fitness  of 
each  officer  for  his  place,  conclusive  until 
the  appointing  authority  can  have  an  oppor- 
tunity to  speak  again,  or  until  those  tri- 
bunals vested  with  authority  to  remove  are 
invoked.  With  the  exercise  of  the  judgment 
and  discretion  committed  to  such  officials  the 
courts  have  no  right  to  interfere,  and  this 
for  a  very  good  reason.  The  occupants  of 
Judicial  places  are  not  selected  to  manage 
the  political  afTairs  of  the  state.  The  quali- 
fications for  their  places  are  vastly  different, 
and  not  such  as  to  imply  abilities  to  that 
end.  Again,  their  opportunities  for  ac- 
quainting themselves  with  the  needs  and 
wishes  of  the  i>eople  of  the  state  or  any 
locality,  with  all  the  complex  elements  in- 
volved in  a  given  exigency,  are  in  nowise 
comparable  to  those  of  the  legislative  or  ad- 
ministrative officers.  So  that,  other  things 
being  equal,  the  probabilities  of  a  correct  es- 
timate of  the  needs  of  the  public  are  far 
less  in  case  of  the  Judges  than  they  are  in 
case  of  the  holders  of  the  political  offices. 
Of  course,  all  officials,  being  human,  are 
liable  to  err,  and  the  people  must  suffer  the 
results  of  errors  of  Judgment  into  which 
their  responsible  officials,  Judicial  as  well  as 
others,  may  fall,  but  at  least  the  theory  of 
our  government  is  that  the  peril  of  error  of 
Judgment  or  Intention  on  the  questions  com- 
mitted to  them  is  less  in  the  legislative  and 
executive  officials,  close  to  the  people  and 
close  to  the  facts  of  the  exigencies  in  which 
they  act,  than  it  would  be  at  the  hands  of 
the  Judiciary,  selected  for  its  supposed  abili- 
ty to  apply  abstract  rules  of  law  to  concrete 
Instancea  Thus  much  has  been  said  be- 
cause of  a  growing  tendency,  of  which  we 
think  the  present  proceeding  Is  illustrative^ 
to  suppose  that  any  individual  who  differs 
with  a  public  official  as  to  the  policy  which 
the  latter  should  pursue  may  demand  that 
the  Judgment  of  some  court  as  to  his  con- 
duct sliall  be  substituted  for  his  own,  and 
control  his  official  acts.  Nothing  could  be 
further  from  the  theory  of  our  government 
nor  less  likely  to  be  promotive  of  public  wel- 
fare. Sutherland  v.  Governor,  29  Mich.  320, 
18  Am.  Rep.  89.  Courts  sit  to  remedy 
wrongs,  and  it  is  often  urged  that  no  wrong 
should  by  courts  be  allowed  to  go  without  a 
remedy;  but  no  wrong  in  the  legal  sense 
results  when  one  receives  all  that  the  law  ac- 
cords him.  So,  when  the  only  right  of  an 
individual  or  the  public  which  the  law  gives 
is  that  which  a  designated  officer  deems  best, 
the  honest  decision  of  that  officer  Is  the  meas- 
ure of  the  right,  however  his  Judgment  may 
differ  from  that  of  others,  even  of  the  courts. 

122N.W.-48 


State  ex  rel.  v.  Houser,  122  Wis.  534,  570^ 
100  N.  W.  964. 

Of  course,  It  Is  true  that  the  Legislature 
may,  and  very  frequently  does.  Impose  upon 
executive  and  admlnistratlTe  officers  abso- 
lute duty  Involving  nothing  of  Judgment  or 
discretion  except  such  as  is  first  exercised 
by  the  Legislature  Itself,  which  discretion, 
being  there  exercised  and  pronounced  In  the 
law,  leaves  no  choice  to  the  offidaL  Such 
ministerial  duty  may  be  enforced  in  a  prop- 
er case  by  the  courts  if  there  is  no  other 
adequate  method  provided.  It  therefore  be- 
comes essential  In  every  case  of  official  ac- 
tion to  consider  whether  the  Legislature  has 
so  passed  upon  all  questions  of  policy  and 
discretion  and  imposed  by  law  a  mere  minis- 
terial duty  in  obedience  to  their  decision,  or 
has  reposed  in  the  administrative  or  execu- 
tive officer  discretion  as  to  when  or  how  he 
ought  to  act.  In  organizing  the  government 
of  the  city  of  Milwaukee  the  Legislature  fol- 
lowed the  general  lines  of  the  governments 
of  the  United  States  and  of  the  several 
states  in  creating  legislative  and  executive 
departments  and  officers,  mainly  independent 
of  each  other.  The  charter  provided  for  a 
mayor  having,  within  the  limited  territory, 
the  substantial  characteristics  of  a  chief  ex- 
ecutive in  analogy  to  the  President  of  the 
United  States  and  the  Governors  of  the  sev- 
eral states.  The  charter  declared  that  the 
mayor  should  be  "the  chief  executive  of- 
ficer and  the  head  of  the  fire  department 
and  of  police  In  said  city,"  and  that  be 
should  "take  care  that  the  laws  of  the  state 
and  the  ordinances  of  the  dty  are  duly  observ- 
ed and  enforced."  These  expressions  signify 
the  conferring  of  all  the  powers  of  a  chief 
executive,  except  as  elsewhere  limited,  with 
the  necessary  right  of  discretion  and  Judg- 
ment. They  also  evince  the  reliance  and 
confidence  in  the  motives  which  should  actu- 
ate the  decisions  finally  arrived  at  by  such 
an  officer  which  accompany  the  delegation 
of  broad  discretion  and  responsibility  to  the 
other  principal  officers  of  government,  im- 
posing as  an  assurance  and  sanction  for  the 
faithful  performance  of  such  duties  the  same 
official  oath  as  in  the  case  of  a  Governor  of 
a  state  or  the  Judges  of  the  highest  courts. 
The  mayor,  therefore,  generally  speaking,  is 
In  no  sense  a  mere  ministerial  officer  to  per- 
form only  acts  as  to  which  the  Legislature 
has  exercised  all  discretion  and  Judgment 
and  made  him  a  mere  implement  of  expres- 
sion. While,  as  already  said,  mere  minis- 
terial duties  may  incidentally  be  conferred 
upon  him,  the  general  words  of  the  charter 
go  much  further.  They  indicate  reliance  in 
his  discretion  rather  than  mere  mlnlsterial- 
Ism.  From  early  times  the  grant  of  execu- 
tive power,  the  general  power  to  execute  the 
laws,  has  been  construed  as  broadly  effective 
of  itself,  and  especially  so  In  the  matter  of 
appointment  and  removal  of  subordinate  of- 
ficers.    On  this  subject  occurred  the  most 


Digitized  by  LjOOQ  IC 


754 


122  NORTHWESTERN  REPORTER. 


(Wis. 


famous  historical  Instance  of  constitatlonal 
construction  by  a  leglslatlTe  body.  In  the 
first  Congress  of  the  United  States,  upon  a 
bill  to  create  the  Secretary  of  Foreign  Af- 
fairs, to  be  appointed  by  the  President  with 
the  consent  and  approval  of  the  Senate  and 
"to  be  removed  from  office  by  the  President 
of  the  United  States,"  ensued  one  of  the 
most  remarkable  debates  in  the  history  of 
the  federal  government,  on  the  question 
whether  the  last-quoted  words  should  be 
eliminated  because  Implying  assertion  of 
power  In  the  Ck)ngress  to  grant  or  withhold 
the  right  of  removal;  it  being  contended, 
on  the  one  hand,  that  the  power  nnder  the 
Constitution  might  rest  In  any  of  several' 
places,  and,  on  the  other  hand,  under  the 
leadership  of  James  Madison,  that  the  "ex- 
ecutive power"  conferred  by  the  Constitu- 
tion on  the  President  had  already  vested  in 
him  the  power  of  removal  of  executive  of- 
ficers, and  that  ibe  Congress  could  not  take 
it  away  and  should  not  appear  to  claim  such 
right  Those  debates  are  contained  In  1  An- 
nals of  Congress,  extending  from  page  455  to 
page  686,  and  resulted  In  the  overwhelming 
adoption  of  Mr.  Madison's  contention  against 
the  proposition  that  the  power  of  removal 
inhered  in  or  resulted  from  the  power  of  ap- 
pointment or  rested  with  the  Legislature  to 
grant  or  withhold,  but  that  it  was  Included 
In  the  "executive  power,"  and  hence  was 
vested  in  the  President.  That  construction 
of  the  Constitution  has  received  multitudi- 
nous approval  since,  and  been  recognized  by 
all  thoughtful  and  careful  writers,  Jurists 
and  attorneys  general  of  the  United  States 
as  settled.  2  Marshall,  Life  of  Washington, 
p.  162;  1  Kent,  Com.  310;  Bancroft's  His- 
tory of  the  Constitution ;  Ex  parte  Hennen, 
IS  Pet.  225,  10  li.  Ed.  136 ;  4  Op.  Atty.  Gen. 
(Legare)  1;  Id.  (aifford)  600;  5  Op.  Attf. 
Oen.  (Crittenden)  288,  290.  This  subject 
was  exhaustively  discussed  and  a  very  com- 
plete collection  of  the  expressions  of  lead- 
ing writers  thereon  embodied  in  the  brief 
for  the  government  in  Parsons  v.  United 
States,  167  U.  S.  324,  17  Sup.  Ct  880,  42  L. 
Ed.  185.  Mr.  Madison's  views,  thus  adopted, 
are  expressed  more  particularly  on  pages  462, 
463,  464,  and  499  of  1  Annals  of  Congress. 
Thus,  before  adoption  of  our  Constitution 
and  before  the  draft  of  the  Milwaukee  char- 
ter, It  had  become  established  that  executive 
power  as  conferred  by  such  Instruments  In- 
cluded the  power  to  appoint  and  remove  sub- 
ordinate executive  officers  at  discretion,  ex- 
cept as  qualified  by  other  expressions. 

Hence,  seemingly,  it  would  be  plain  that 
In  the  absence  of  any  other  charter  provi- 
sions the  mayor,  merely  by  his  creation  as 
the  chief  executive,  and  by  the  Imposition 
of  the  duty  to  see  that  the  laws  and  ordi- 
nances were  entorced,  would  have  the  pow- 
er of  api>ointment  and  removal.  That  pow- 
er, however,  was  qualified  in  some  degree 
through  all  stages  of  the  charter  of  Mil- 
waukee up  to  the  adoption  of  a  fire  and  po- 


lice commission  by  chapter  878,  p.  1251, 
Lews  1886,  whereby  the  appointment  and 
removal  of  the  chiefs  of  the  fire  and  police 
departments  was  vested  In  that  board  and 
taken  away  from  the  mayor.  Section  6  of 
that  act  provides  that,  in  case  of  a  vacancy 
In  either  office,  it  shall  be  the  duty  of  said 
board  to  appoint  proper  persons  to  fill  such 
offices  "during  good  behavior  subject  to  sus- 
pension and  removal  as  hereinafter  provid- 
ed"; and  section  12  conferred  on  the  board 
the  power  to  remove  either  such  officer  when 
of  the  unanimous  opinion  that  the  good  of 
the  service  would  be  subserved  thereby. 
These  provisions;  emanating  from  the  Leg- 
islature, were,  of  course,  limitations  upon 
the  executive  power  of  the  mayor,  but  ac- 
companying them  was  section  11  of  the  same 
act,  which  provided  that  the  chief  of  police 
and  the  chief  of  the  fire  department  and 
other  specified  officers  shall  be  subject  to 
suspension  from  office  for  cause  by  the 
mayor  at  any  time.  Any  officer  so  suspend- 
ed shall  thereupon  cease  to  exercise  the  func- 
tions of  his  office  until  be  shall  be  reinstat- 
ed. In  case  of  such  suspension,  the  mayor 
shall  at  once  communicate  to  said  board 
the  charge  or  charges  against  the  officer 
suspended,  and  the  board  shall  at  once  cuu- 
Elder  and  examine  the  same,  giving  the  sus- 
pended officer  opportunity  to  meet  the 
charges  and  to  be  beard  in  bis  own  defense. 
If  the  charges  are  not  sustained  by  Hie 
board,  the  officer  shall  be  immediately  rein- 
stated. If  they  are  sustained,  the  board 
shall  determine  whether  the  good  of  the 
service  requires  removal  from  office  or  sus- 
pension, and  their  decision  shall  control 
the  action  of  the  mayor.  It  Is  clear  that  thus 
was  formulated  an  entirely  new  scheme  or 
plan  with  reference  to  certain  subordinate 
executive  officers,  whereby  the  whole  sub- 
ject of  their  appointment  and  removal  was 
taken  out  of  the  hands  of  the  chief  execu- 
tive of  the  city  and  vested  in  a  board;  but 
it  Is  equally  apparent  that  the  Legislature, 
appreciating  the  inherent  incapacity  of  such 
boards  for  prompt  and  effective  executive 
action  In  emergencies,  Intended  to  preserve 
in  the  mayor  the  power  of  suspension  in  a 
proper  case.  That  power  was  lodged  in  the 
mayor  as  essential  to  bis  duty  to  guard  the 
general  welfare,  and  to  see  that  the  laws 
and  ordinances  should  be  enforced.  The 
cause  mentioned  in  section  11  for  which  the 
suspension  might  be  made,  of  course,  means 
any  cause  which  in  the  honest  Judgment  of 
the  mayor  as  a  trusted  and  responsible  chief 
executive  might  reasonably  render  such  sus- 
pension advisable  for  the  public  good.  The 
discretion  so  conferred  empowered  him  to 
weigh  all  considerations  in  deciding  whether 
sufficient  cause  existed  for  such  suspension. 
Those  causes  and  considerations  are  innu- 
merable. A  perfectly  good  cause  for  remov- 
al may  be  no  sufficient  cause  for  summary 
suspension,  and,  vice  versa,  a  good  cause  for 
temporary  suspension  may  exist  which  does 


Digitized  by  VjOOQ  l€ 


wis.) 


STATE  ▼.  ROSE. 


755 


not  warrant  complete  removal.  In  the  case 
of  the  fire  chief  bis  abilities  as  a  fighter  of 
flre  to  preserve  property  and  the  safety  of 
the  community  are  considerations  of  great 
importance  which  may  well  deter  the  mayor 
In  his  honest  Judgment  from  even  temporari- 
ly displacing  him  and  leaving  the  city  with- 
out bis  services,  although  he  may  lack  many 
other  attributes  of  an  Ideal  public  officer, 
and  thus  make  choice  of  a  successor  advisa- 
ble. The  condition  of  things  as  to  the  pres- 
ence upon  the  force  of  a  subordinate  able  to 
supply  those  emergency  qualities  which  the 
chief  may  have  might  weU  Justify  the  mayor 
in  deciding  not  to  suspend  one  whom  he  may 
believe  ought  not  permanently  to  continue 
as  the  chief  of  that  fire  department  because 
of  other  defects  of  character  during  consid- 
eration by  the  board  of  the  sufficiency  of 
those  defects  as  cause  of  removal.  For  mul- 
titudinous reasons  like  these.  It  Is  not  the 
absolute  duty  of  the  mayor,  even  If  inform- 
ed of  great  or  even  gross  dereliction  in  cer- 
tain directions,  to  momentarily  deprive  the 
city  of  the  protection  resulting  from  other 
abilities  of  such  an  officer  as  the  flre  chief 
or  the  chief  of  police.  The  contention  of 
respondent  to  the  effect  that,  whenever 
charges  are  laid  by  a  "citizen  and  taxpayer," 
a  ministerial  duty  is  Imposed  upon  the  may- 
or to  forthwith  suspend,  at  once  suggests 
illustrations  which  are  convincing  of  the 
impossibility  of  such  legislative  intention. 
Were  the  chief  of  police  engaged  in  a  cam- 
paign against  gambling  houses  or  houses  of 
ill  fame,  he  would  naturally  draw  upon  him- 
self the  antagonism  of  those  who  profit 
from  ■  such  establishments,  and  If,  at  the 
critical  moment  of  such  proceeding,  a  fear- 
less and  effective  chief  of  police  must  lay 
down  the  fight  because  the  proprietor  of  such 
a  building,  a  "citizen  and  taxpayer,"  laid 
some  charge  of  general  impropriety  or  even 
dishonesty  against  him,  tiie  possibility  of 
tbe  enforcement  of  the  laws  and  ordinances 
for  the  time  being  at  least  might  well  dis- 
appear. The  mayor  must  be  authorized  in 
such  a  case  to  look  not  alone  to  the  charges, 
but  as  well  to  the  necessities  of  the  com- 
munity. The  possibility  of  a  substitute  for 
tbe  assailed  officer  competent  to  meet  the 
exigencies  of  the  moment  and  an  Infinity  of 
other  considerations  as  to  whether  It  Is  best 
that  he  be  summarily  suspended  and  the 
office  left  vacant  until  the  commission  can 
in  tbe  slow  course  of  investigation  and  pro- 
cedure that  must  characterize  such  bodies 
fill  the  place  with  another  appointee  present 
themselves  In  such  a  contingency.  We  are 
pM^uaded  that  the  power,  and,  of  course, 
the  duty,  of  suspension  preserved  In  the 
mayor  by  section  11  Is  discretionary  In  a 
very  high  degree,  and  therefore,  under  the 
uniform  holding  of  this  court,  that  the  may- 
or's decision  not  to  exercise  It  is  not  sub- 
ject to  review  or  direction  by  the  courts, 
nnless,  indeed,  there  may  be  found  an  en- 


tire refnaal  to  consider  and  exercise  discre- 
tion. State  ex  rel.  Gill  v.  Ommon  Council 
of  Watertown,  9  Wis.  254;  State  ex  reL 
Gerlcke  v.  Mayor  and  Common  Council  of 
Ahnapee,  99  Wis.  322, 326,  74  N.  W.  783 ;  State 
ex  rel.  Coffey  v.  Chittenden,  112  Wis.  569, 
574,  88  N.  W.  687;  State  ex  rel.  v.  Holt,  132 
Wis.  131,  111  N.  W.  1106;  State  ex  rel.  v. 
Milwaukee,  132  Wis.  615,  618,  113  N.  W.  40; 
State  ex  rel.  Rudolph  v.  Hutchinson,  134 
Wis.  283,  114  N.  W.  453;  State  ex  rel.  v. 
Mayor,  134  Wis.  442,  114  N.  W.  802;  State 
V.  Dahl  (decided  herewith)  122  N.  W.  748; 
High,  Ex.  Rem.  {  42. 

In  this  case  we  can  find  nothing  of  such 
refusal.  There  Is  no  duty  resting  upon  an 
executive  officer  vested  with  such  ample  dis- 
cretion as  this  to  declare  the  reasons  for 
his  decision  or  his  action  In  deciding  against 
suspension.  It  is  enough  for  him  to  declare 
that  he  deems  the  public  welfare  promoted 
by  action  or  inaction,  whicli  declaration  in- 
deed need  only  be  by  the  act.  John  Adams, 
who,  as  Vice  President,  had  cast  the  deciding 
vote  In  favor  of  Madison's  construction  of 
executive  power,  referred  to  in  an  earlier 
part  of  this  opinion,  gave  his  own  lllustnt- 
tlon,  when  President,  of  the  extent  of  ac- 
countability of  the  chief  executive  under 
such  a  power  In  his  communication  of  May 
12,  1800,  to  the  then  Secretary  of  States 
which  reads:.  'THvers  causes  and  considera- 
tions essential  to  the  administration  of  tlia 
government  In  my  Judgment  requiring  a 
change  in  the  department  of  state,  you  are 
hereby  discharged  from  any  further  serv- 
ice as  Secretary  of  State.  John  Adama^ 
President  of  the  United  States."  In  tbe  pres- 
ence of  such  a  solemn  declaration  courts 
must  Indulge  in  every  prima  fade  presumi»- 
tlon  In  favor  of  the  good  faith  of  the  execu- 
tive officer  in  his  discharge  of  his  duties 
as  such,  and  only  when  It  can  be  established 
by  the  clearest  possible  evidence  that  such 
officer  has  wholly  refused  to  exert  his  Jo- 
risdiction  or  to  exercise  any  discretion  what-  • 
ever  can  the  courts  properly  Interfere  by 
mandamus.  Spalding  v.  Vilas,  161  XT.  S.  483, 
16  Sup.  Ct  631,  40  L.  Ed.  780;  People  v. 
Atty.  Gen.,  22  Barb.  (N.  Y.)  114,  118;  Ely  v. 
Cram,  17  Wis.  637;  Connor  v.  Marshfield, 
128  Wis.  280,  288,  107  N.  W.  639.  In  the 
present  case  it  appears  by  the  relation  itself 
that  upon  receipt  of  relator's  so-called 
charges  the  mayor  did  enter  into  an  investi- 
gation, took  various  means  to  Inform  him- 
self of  facts  and  of  the  situation,  and  declare 
ed  bis  conclusion  that  the  charges  did  not 
warrant  the  suspension  of  the  officer,  re- 
sulting as  it  must  to  the  latter's  great  detri- 
ment and  to  the  deprivation  of  the  city  and 
the  public  of  his  services.  It  is  apparent, 
therefore,  on  the  face  of  the  papers,  that  tbe 
discretion  was  exercised,  and  that  the  condi- 
tions npon  which  it  might  be  the  duty  of 
tbe  mayor  to  suspend  the  flre  chief  did  not 


Digitized  by  VjOOQ  l€ 


756 


122  NORTHWBSTEEN  BBPORTBB. 


(Wlai 


ezlat    Hence,  of  course,  the  motion  to  quash 
should  have  been  granted. 

Order  reversed  and  cause  remanded  with 
directions  to  quash  the  alternative  writ  of 
mandamus  and  to  dismiss  the  proceeding. 

WINSLOW,  C.  J.,  took  no  part 


FENTON  et  al.  ▼.  RTAIJ  et  al. 

(Supreme  Court  of  Wisconsin.     Oct.  6,  1909.) 

1.  CoNSTTTXniONAI,  L4.W  (g  68*)  —  Tebbitort 
Pkopeblt  Iitcxuded— Legiblativk  OB  Ju- 
dicial QnlESTION. 

The  Legislature,  having  the  power  to  create 
villages,  necessarily  has  a  large  discretion  in 
what  the  boundaries  shall  be,  and  it  is  only 
where  its  discretion  has  been  abused,  and  there 
has  been'  a  violation  of  Const,  art.  11,  I  3,  re- 
quiring the  Legislature  to  i>rovide  for  the  oi^ 
ganlzation  of  incorporated  villages,  and  article 
4,  i  23,  providing  that  the  Lesislature  shall 
establish  out  one  system  of  town  and  county 
government,  to  be  as  nearly  uniform  as  practica- 
ble, that  the  courts  may  interfere. 

[Ed.  Note.— For  other  cases,  see  Constitutional 
Law,  Dec.  Dig.  {  68.»] 

Si  CONSTITUTIONAI,  LAW  (J  68*)  —  Tbbbitoet 
PrOPERLT  INCI/TTDED  —  LdEOISULTITE  OB  JU- 
DICIAL Questions. 

The  Legislature  having  made  no  further 
declaration  than  that,  by  St.  1898j  i  854,  the 
area  of  a  village  proposed  to  be  mcorporated 
shall  not  be  less  than  one-half  a  square  mile,  it 
would  seem  to  be  a  question  of  fact  for  the  court 
to  determine  in  each  instance  whether  the  ter- 
ritory in  excess  of  one-half  a  square  mile,  which 
it  is  proposed  to  include,  possesses  the  attributes 
which  should  naturally  belong  to  territory  in- 
cluded in  an  incorporated  village,  since  to  in- 
clude rural  or  agricultural  lands  sparsely  set- 
tled, and  not  having  the  distinctive  character- 
istics of  a  village,  and  no  natural  connection 
therewith,  and  not  reasonably  appurtenant  and 
necessaiT  for  future  growth,  would  violate  the 
uniformity  of  town  and  county  government  guar- 
anteed by  Const,  art.  4,  S  23 ;  and  such  a  ques- 
tion Is  judicial  In  Its  character,  and  not  legis- 
lative. 

[Ed.  Note. — For  other  cases,  see  Constitutional 
Law,  Dec.  Dig.  §  68.*] 

3.  Municipal  Cokpobatioks  (|  25*)— Terri- 

TOBT— Water  Area. 

It  was  not  error  to  hold  that  the  water  area 
within  the  boundaries  of  a  proposed  village 
should  be  included  as  a  part  of  the  one-half 
square  mile  which  by  St.  18.98,  S  854,  a  village 
proposed  to  be  incorporated  must  cover,  and 
such  ruling  was  not  tantamount  to  a  holding 
that  no  village  could  be  incorporated  which  bor- 
dered on  a  large  body  of  water,  for  the  incor^ 
porators  were  not  obliged  to  include  the  water 
area,  and,  furthermore,  there  is  no  limitation 
placed  upon  the  area  of  a  village  by  statute  fur- 
ther than  to  prevent  the  entire  town  or  towns 
being  included. 

[Ed.  Kote. — For  other  cases,  see  Municipal 
Corporations,  Dec  Dig.  S  25.*] 

Appeal  from  Circuit  Court,  Outagamie 
County;   John  Goodland,  Judge. 

Petition  by  M.  O.  Fenton  and  others  for 
an  order  Incorporating  the  village  of  Klmber- 
ly.  The  petition  was  opposed  by  D.  J.  Ryan 
and  others,  and  from  an  order  denying  thf 
same,  petitioners  appeal.    AfBrmed. 


C.  G.  Cannon  (Hooper  ft  Hooper,  of  conn- 
sel),  for  appellants.  Albert  H.  Krugmeler, 
for  respondents. 

BARNES,  J.  The  court  found  that,  of  tb« 
676  acres  embraced  within  the  boundaries 
of  the  proposed  village,  about  465  acres  were 
rural  or  agricultural  lands  sparsely  settled, 
not  having  the  dlBtlnctlve  characteristics  of 
a  village,  and  not  reasonably  appurtenant 
to  the  remaining  territory,  and  not  necessary 
to  be  included  within  the  limits  of  the  pro- 
posed village  for  any  legitimate  purpose. 
Of  the  remaining  113  acres  the  court  found 
that  75  acres  were  covered  with  water,  and 
that  the  settled  portion  of  the  proposed  vil- 
lage contained  but  38^  acres,  and  that  one- 
half  a  section  of  land,  Inclndlng  the  submerg- 
ed acreage,  was  ample  territory  for  the  pro- 
posed village.  In  view  of  its  location,  sur- 
roundings, and  prospect  of  future  growth. 
Upon  the  findings  so  made  the  court  denied 
the  application  of  the  petitioners. 

But  one  substantial  objection  is  urged  in 
support  of  the  claim  that  the  order  appealed 
from  is  erroneous.  It  is  argued  that  it  is 
no  proper  function  of  a  court  to  decide 
whether  the  proposed  boundaries  Include  an 
excessive  amount  of  land,  so  long  as  the 
proposed  area  does  not  conflict  with  any 
statutory  requirement.  It  Is  urged  that  the 
matter  of  fixing  the  limits  of  the  village 
Is  a  legislative  or  political  question,  and  not 
a  judicial  one,  so  long  as  such  limits  Include 
one-half  a  square  mile  In  area  and  do  not 
Include  the  entire  town.  The  cases  of  In 
re  Incorporation  of  North  Milwaukee,  93 
Wis.  616,  67  N.  W.  1033,  33  L.  R.  A.  634 
and  Nash  v.  Fries,  129  Wis.  120,  108  N.  W. 
210,  are  cited  as  sustaining  the  contention 
so  made.  It  Is  held  in  the  North  Itlllwankee 
Case  that  courts  cannot  decide  questions  of 
legislative  policy  by  determining  whether  or 
not  a  Tillage  should  be  Incorporated;  that 
the  Legislature  may  say  what  prerequisites 
must  exist,  and  what  steps  must  be  taken  be- 
fore Incorporation  can  be  effected,  and  may 
authorize  the  courts  to  determine  whether 
such  facts  exist,  but  that  no  discretion  can 
be  vested  In  the  courts  to  grant  or  refuse  a 
certificate  of  incorporation.  It  was  said  by 
way  of  Illustration  that  a  court  might  deter- 
mine sudt  questions  as  whether  the  survey 
was  correct,  whether  the  population  was  as 
large  as  the  statute  required  in  proportion  to 
the  area,  and  whether  the  statutory  require- 
ments have  been  complied  with  on  all  ques- 
tions of  fact  which  the  court  may  deter- 
mine, but  that  the  court  might  not  determine 
whether  the  lands  embraced  in  the  petition 
should  justly  be  Included  In  the  vUIage,  or 
whether  the  Interests  of  the  inhabitants 
would  be  promoted  by  the  Incorporation,  or 
whether  the  tionndaries  of  the  village  could 
be  enlarged  or  diminished  as  Justice  might 
seem  to  require;   such  questions  being  legls- 


*For  othsr  easM  n*  aam*  topic  and  secUon  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  ft  Reporter  lodexea 


Digitized  by  LjOOQ  IC 


WtoOi 


FBNTON  T.  RYAN, 


757 


lative  or  political  and  not  Judicial.  In  Nash 
T.  Fries,  supra,  It  was  held  that,  if  chapter 
21,  p.  60,  Laws  1806,  shoold  be  construed  as 
Testing  any  discrimination  in  the  court  to  say 
whether  a  new  town  should  be  organized  or 
not,  the  law  conld  not  be  upheld  under  the 
rule  of  the  North  Milwaukee  Case. 

If,  as  contended  by  counsel  for  appellant, 
the  court,  In  deciding  that  the  boundaries 
of  the'  proposed  village  Included  territory 
which  should  have  been  excluded,  was  pass- 
ing upon  a  question  that  was  legislatlTe  and 
not  judicial,  It  follows  as  a  matter  of  course 
that  the  order  appealed  from  is  erroneous 
nnder  the  decisions  referred  to.  That  the 
question  Is  one  for  Judicial  determination  Is 
decided  In  State  ex  rel.  Holland  t.  Lammers, 
113  Wis.  398,  86  N.  W.  677,  8»  N.  W.  501.  In 
deciding  that  case  the  court  construed  the 
law  providing  for  the  incorporation  of  vil- 
lages in  connection  with  section  3,  act  11, 
of  our  Constitution,  which  declares  that  "It 
shall  be  the  duty  of  the  Legislature,  and  they 
are  hereby  empowered,  to  provide  for  the  or- 
ganization of  cities  and  incorporated  villa- 
ges," and  also  in  connection  with  section  23, 
art  4,  of  the  Constitution,  which  provides 
that  "The  L^slature  shall  establish  but  one 
system  of  town  and  county  government  which 
shall  be  as  nearly  uniform  as  practicable." 
The  court  there  defined  what  a  village  was 
understood  to  mean  at  the  time  of  the  adop- 
tion of  the  Constitution,  and  held:  (1)  That 
if  the  law  authorizing  the  incorporation  of 
villages,  as  properly  construed,  permits  ru- 
ral territory  possessing  none  of  the  attributes 
of  villages  to  change  from  town  to  village ! 
government  at  will,  it  cannot  be  sustained. ' 
(2)  That  the  law  providing  for  the  Incor- 1 
poratlon  of  villages  fixes  no  limitation  as  to 
the  maximum  size  of  the  territory  that  may  1 
be  incorporated,  except  that  it  must  be  part 
of  a  town  or  towns,  and  prescribes  no  re- 1 
strlction  as  to  density  of  population,  except  | 
that  It  shall  contain  a  resident  population  of 
not  less  than  a  stated  number.  (3)  That  a 
village  means  an  assembly  of  houses  less 
than  a  city,  but  nevertheless  urban  or  semi- 
nrban  in  Its  character,  and  having  a  density 
of  population  greater  than  can  usually  be 
found  in  rural  districts,  and  that  this  was 
the  nnderstood  meaning  of  what  constituted 
a  village  at  the  time  the  Constitution  was 
adopted.  (4)  That  if  the  law  providing  for 
the  incorporation  of  villages  contains  no  re- 
striction upon  the  size  or  density  of  popula- 
tion of  the  territory  sought  to  be  incorporat- 
ed, a  restriction  must  be  implied  from  the 
name  of  the  corporation  and  the  purpose  for 
which  it  Is  Incorporated.  (5)  That  only  ter- 
ritory urban  in  character,  with  such  adja- 
cent lands  as  are  naturally  connected  with 
and  are  reasonably  appurtenant  and  neces- 
sary for  future  growth  In  view  of  the  sur- 
coandings  and  drcumstances  of  the  location 
and  prospects  of  future  prosperity,  may  be 


Incorporated  in  the  village.  (6)  That  the 
territory  seeking  admission  as  a  village  must 
be  harmonious  with  the  idea  of  what  a  vil- 
lage actually  Is.  It  may  not  Include  large 
areas  of  rural  or  agricultural  lands  sparsely 
settied  or  widely  distributed.  It  may  only 
include  lands  having  the  distinct  characteris- 
tics of  a  village,  and  such  additions  as  have 
a  natural  connection  with  and  seem  reason- 
ably appurtenant  to  and  necessary  for  future 
growth.  (7)  That  it  is  a  question  of  fact  to 
be  determined  in  each  case  as  the  question 
arises,  whether  the  provisions  of  the  Consti- 
tution referred  to  may  be  violated  by  Includ- 
ing territory  within  the  limits  of  the  village 
which  should  not  be  Included  therein.  Such 
Inquiry  is  Judicial,  not  legislative,  at  least  in 
the  absence  of  any  legislative  declaration  on 
the  subject.  (8)  That  the  right  to  Incorporate 
a  village  under  section  854  is  limited  to  such 
territory  as  possesses  the  characteristics  men- 
tioned. It  must  be  a  village  in  fact  with  a 
reasonably  compact  center  or  nucleus  of  pop- 
ulation, and  not  a  mere  agricultural  com- 
munity. If  territory  beyond  the  thickly  set- 
tled limits  is  Included,  such  territory  ought 
reasonably  to  possess  some  natural  connec- 
tion with  and  adaptability  to  village  purposes 
and  seem  reasonably  to  be  necessary  for  fu- 
ture growth  and  development  (9)  That  In 
the  absence  of  some  specific  legislation  the' 
courts  must  meet  and  determine  in  each  given 
case  the  facts  as  to  whether  these  restrictions 
have  been  overstepped. 

It  will  be  observed  that  the  only  declara- 
tion the  Legislature  has  made  which  affects 
the  case  before  us  for  consideration  is  that 
any  part  of  any  town  not  less  than  one-half 
a  square  mile  in  area,  and  not  Included  in 
any  village,  and  all  lying  'in  the  same  coun- 
ty, which  shall  contain  a  resident  population 
of  300  persons  therein,  may  become  Incorpo- 
rated as  a  village  by  taking  certain  steps 
enumerated  in  the  statute.  The  I>egislature, 
having  the  power  to  create  villages,  neces- 
sarily has  a  large  discretion  in  the  matter 
of  determining  what  the  boundaries  of  such 
villages  shall  be.  It  is  only  when  the  discre- 
tion has  been  abused,  and  the  provisions  of 
the  Constitution  referred  to  have  been  violat- 
ed, that  the  courts  may  interfere  with  legis- 
lative action.  The  Legislature  has  acted  to 
the  extent  of  saying  that  the  area  of  the  vil- 
lage which  it  is  proposed  to  create  shall  not 
be  less  than  one-half  a  square  mile.  Beyond 
this  the  Legislature  has  not  gone.  It  may 
wen  be  that  it  is  entirely  competent  for  the 
Legislature  to  say  that  territory  to  the  ex- 
tent named  is  reasonably  necessary  to  carry 
out  the  objects  and  purposes  for  which  vil- 
lages are  incorporated.  'When  we  get  beyond 
the  legislative  declaration,  however,  it  would 
seem  to  be  clearly  a  question  of  fact  for  the 
court  to  determine  in  each  instance,  under 
the  law  as  it  stands,  whether  the  territory 
in  excess  of  one-half  a  square  mile  which  It 
is  proposed  to  include  possesses  the  attri- 


Digitized  by 


Google 


758 


122  NORTHWESTERN  RBPOBrTEB. 


(Wi& 


bates  whlcli  should  naturally  belong  to  terri- 
tory included  witbln  the  confines  of  an  incor- 
porated Tillage.  If  it  is  proposed  to  Include 
rural  or  agricultural  lands  that  are  sparsely 
settled,  and  that  have  not  the  distinctive 
characteristics  of  a  Tillage,  and  have  no  nat- 
ural connection  therewith,  and  which  do  not 
seem  to  be  reasonably  appurtenant  and  nec- 
essary for  the  future  growth  of  the  Tillage, 
then  the  uniformity  of  town  and  county  goT- 
emment  guaranteed  by  the  Constitution  is  in- 
Taded  under  the  decision  of  this  court  in 
State  ex  rel.  Holland  t.  Lammers,  supra. 
There  caifnot  be  any  doubt  that  such  a  ques- 
tion is  Judicial  in  its  character.  The  courts 
are  the  ultimate  tribunals  to  determine  wheth- 
er or  not  the  Constitution  has  been  violated 
in  a  glTen  case.  It  Is  not  seriously  contended 
In  this  case  that  the  facts  as  found  by  the 
court  are  not  supported  by  the  testimony. 
This  being  true,  we  see  no  escape  from  the 
conclusion  that  it  would  be  a  Tiolatlon  of  the 
proTlsions  of  the  Constitution  referred  to,  to 
incorporate  this  vUlage,  and  Include  within 
its  boundaries  the  amount  of  territory  de- 
scribed in  the  petition  for  incqrporatlon.  The 
statement  In  the  North  Milwaukee  Case  that 
a  court  could  not  determine  whether  lands 
embraced  in  a  petition  for  Incorporation 
should  justly  be  Included  in  the  proposed  Til- 
lage was  made  in  reference  to  a  subject  not 
directly  before  the  court  for  determination, 
and  can  hardly  be  considered  a  part  of  the 
decision  of  the  court.  Besides,  the  constitu- 
tional question  raised  and  decided  in  Holland 
T.  Lammers  was  not  raised,  passed  upon,  or 
considered  In  the  North  Milwaukee  Case. 

It  is  argued  that  the  court  was  in  error  in 
holding  that  the  water  area  embraced  within 
the  boundaries  of  the  proposed  Tillage  should 
be  included  as  part  of  the  one-half  square 
mile  provided  for  by  section  854,  St  1888, 
and  that  such  a  ruling  was  tantamount  to 
holding  that  no  Tillage  could  be  incorporated 
which  bordered  on  a  large  body  of  water. 
We  do  not  think  the  position  Is  tenable.  The 
incorporators  of  the  proposed  village  were 
not  obliged  to  include  water  areas  within  the. 
Tillage  limits  if  they  did  not  desire  to  do  so. 
Furthermore,  there  is  no  limitation  placed 
upon  the  area  of  a  Tillage  by  statute  further 
than  to  preTent  the  entire  town  or  towns  out 
of  which  the  village  Is  carved  from  being  in- 
cluded within  its  boundaries. 

We  think  the  objectors  had  a  sufficient  in- 
terest in  the  proceeding  to  entitle  them  to 
appear  therein  and  resist  the  granting  of  the 
petition,  and  that  the  court  was  authorized 
by  section  860  to  refer  the  questions  in  issue 
to  a  referee  for  examination  and  a  report 
thereon,  and  that  the  order  of  the  circuit 
court  should  be  affirmed. 

Order  affirmed. 

WINSLOW,  C.  J.,  took  no  part 


HBNDRICKSON  T.  WISCONSIN  CENT.  B.T. 
CO. 

(Supreme  Court  of  Wisconsin.     Oct  R,  1909.) 

1.  Master  and  Sebvant  ({  88*)— Irjubtbs  to 
Anotheb's  SEBVA3TT— Assistant  or  Sebv- 
ant. 

Where  plaintiff  was  injured  by  the  alleged 
negligence  of  the  servants  of  a  railway  com- 
pany, while  he  was  assisting  the  conductor  to 
repair  a  car  brake,  and  the  conductor  had  no 
express  authority  to  employ  plaintiff,  and  there 
was  no  sudden  emergency  necessitating  plaintiff's 
emplojrment,  plaintiff  conld  not  recover  on  the 
theory  that  he  was  acting  as  defendant'*  serv- 
ant at  the  time  of  the  injury. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  i  148;    Dec.  Dig.  i  88.*] 

2.  Railboads  (8  275*)— iHJtTBiEs  to  Pebsoii 
Wobkino  ABOtrr  Cabs. 

Plaintiff,  a  granite  company's  foreman, 
was  required  to  receive  empty  cars  from  de- 
fendant railway  company,  and  see  that  they 
were  so  placed  that  they  could  be  bandied  for 
loading.  Oa  the  day  of  his  injury,  he  was  as- 
sisting tlie  railroad  conductor,  with  his  con- 
sent, to  repair  a  brake  on  a  car  placed  on  the 
granite  company's  side  track,  and  was  injured 
by  the  negligence  of  the  railway  comoany's  serv- 
ants. Held,  that  plaintiff  was  neither  a  tres- 
passer nor  intermeddler  as  to  defendant's  busi- 
ness, but  was  engaged  in  that  part  of  the 
granite  company's  business  in  which  it  and  the 
railway  company  had  a  common  interest  and 
hence  defendant  was  responsible  for  the  injury. 
[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  i  874;    Dec  Dig.  {  275.*] 

3.  Railboads  (|  275*)— Injtjbies  to  Pebsor 
Wobkino  about  Cabb— Nkolioenoe. 

A  granite  company  operated  a  quarry  in 
which  a  loading  track  ran  through  a  tunnel  in 
which  cars  were  placed  to  be  loaded.  Plaintiff, 
the  granite  company's  foreman,  was  injured 
by  the  sudden  backing  of  the  cars,  while  as- 
sisting the  conductor  to  repair  the  brake  on 
a  car  in  the  tunnel.  The  engine  was  backed 
against  the  cars  without  any  lookout  being 
maintained,  or  warning  given  of  the  impending 
danger.  Held,  that  defendant  was  negligent  in 
failing  to  keep  a  proper  lookout,  and  m  failing 
to  give  warning  of  the  impending  movement  of 
the  cars. 

[Ed.   Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  {  875;   Dec  Dig.  }  275.*] 

4.  Railboads  (|  282*)— Injuries  to  Pebbon 

WOBKING  about  CABa— -CONTBIBUTOBY  NEO- 
LIOENCE. 

Where  plaintiff  was  properly  assisting  a 
railroad  conductor  to  repair  a  brake  on  a  car. 
and  was  injured  by  the  sudden  movement  of 
the  cars  without  signal  or  warning,  whether  he 
was  negligent  was  for  the  jury. 

[Ed.   Note. — For  other  cases,   see  Railroads, 
Cent  Dig.  (  918;    Dec  Dig.   S  282.*) 

5.  Appeal  and  Ebbob  ($  1050*)— Adhissioii 
OP  Evidence— Pbejudick. 

Where  it  was  undisputed  that  defendant's 
locomotive  liit  certain  cars,  which  caused  plain- 
tiff's injury,  and  the  conductor  had  given  no 
signal  for  the  movement  and  he  did  not  ex- 
pect it  while  plaintiff  and  himself .  were  at- 
tempting to  repair  a  brake,  the  railroad  com- 
pany was  not  prejudiced  by  evidence  of  the 
conauctor'g  declaration,  when  he  crawled  from 
under  the  cars,  that  he  did  not  think  that  the 
engine  was  going  to  hit  the  cars,  without  proof 
that  the  statement  was  res  gestse. 

[Ed.  Note.— For  other  case,  see  Appeal  and 
Error,  Cent  Dig.  i  4156;    Dec  Dig.  f  1050.*) 


•For  otb«r  case*  see  aame  topic  and  ■action  NUMBER  In  Deo.  *  Am.  Dlfi.  U07  to  data,  *  Raportar  Inde 


Digitized  by 


Google 


WlB.) 


HENDRICK80IT  t.  WISCONSIN  CENT.  RT.  CO. 


759 


«.  TBTAt    (I    200*)  — InSTBUOnoiTS  — WklOHT 
or    EVIDEITCE. 

Where  the  court  charged  that  the  Jury's 
answers  to  questions  in  a  special  verdict  should 
be  according  to  what  they  believed  to  b«  the 
fair  weight  of  the  whole  evidence,  and  then  di- 
rected them,  in  submitting  each  question  in  the 
speci&I  verdict,  where  the  burden  of  proof  rest- 
ed on  plaintiff,  that  if  they  so  affirmatively  be- 
lieved from  the  whole  evidence,  they  should  an- 
swer the  question  accordingly,  and  that  if  they 
were  not  so  satisfied,  they  should  give  the  op- 
posite answer,  the  court  did  not  err  in  refusing 
to  charge  that  unless  the  jur:^  was  satisfied 
from  a  preponderance  of  the  evidence  that  the 
second  question  should  be  answered  "Yes,"  they 
should  answer  it  "No." 

[E3d.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  {  653;   Dec.  Dig.  {  2Q0.*] 

Appeal  from  Circuit  Court,  Wanpaca  Conn- 
ty;    Charles  M.   Webb,  Judge. 

Action  by  Henry  Hendrlckson  against  the 
Wisconsin  Central  Railway  Company.  Judg- 
ment for  plaintiff,  and  defendant  appeals. 
Affirmed. 

This  is  an  action  for  damages  for  per- 
sonal Injuries  alleged  to  be  due  to  the  neg- 
ligence of  the  servants  of  the  defendant  rail- 
way company.  Plaintiff  was  the  foreman  of 
the  quarry  crew  of  the  Wisconsin  Granite 
Company  at  Waupaca.  As  such  foreman  he 
had  charge  of  the  loading  of  railroad  cars 
with  the  crushed  granite  from  the  quarry. 
The  crusher  of  the  granite  company  is  about 
IS  feet  below  the  level  of  the  main  line 
of  track  of  the  defendant  The  bins  con- 
taining the  crushed  granite  are  over  a  spur 
track,  are  directly  connected  with  the  crush- 
er, and  are  supported  by  heavy  stone  walls. 
The  supporting  walls  are  about  56  feet  long, 
and  with  the  bins  make  a  tunnel  through 
which  the  cars  to  be  loaded  with  the  crush- 
ed granite  may  pass,  but  which  Is  too  low 
to  allow  a  locomotive  to  pass  through.  The 
crusher  Is  located  about  900  feet  west  of  the 
switch  connecting  the  spur  track  with  the 
main  track.  The  spur  track,  which  Is  used 
exclusively  for  loading  the  products  of  the 
granite  company,  extends  west  of  the  crush- 
er some  300  or  400  feet  For  a  short  dis- 
tance west  of  the  tunnel,  through  the  tunnel, 
and  for  four  or  five  car  lengths  east  of  the 
tunnel  the  spur  track  Is  practically  level. 
East  of  this  level  track  to  the  spur  track 
switch  is  an  upgrade  of  18  feet  West  of 
the  level  track  there  Is  a  slight  upgrade  for 
a  short  distance,  beyond  which  the  track  is 
nearly  level.  It  was  customary  for  the 
train  crew  of  the  defendant  to  take  loaded 
cars  from  the  level  track  in  and  to  the  east 
of  the  tutmel,  and  to  place  empty  cars  upon 
the  slightly  elevated  track  to  the  west  of  the 
crusher.  Either  a  sufficient  number  of  cars 
to  reach  from  the  track  on  the  higher  level 
west  of  the  tunnel  to  the  east  of  the  tun- 
nel were  placed  between  the  empty  cars  and 
the  locomotive,  and  the  empty  cars  were 
thus  pushed  back  by  the  locomotive  to  the 
place  desired,  or  the  empty  cars  were  drop- 


ped down  the  grade  from  the  elevation  on 
the  east  of  the  spur  track,  and  carried  by 
the  momentum  acquired  in  the  18-foot  de- 
scent along  the  level  track  and  up  the  slight 
rise  onto  the  track  west  of  the  tunnel. 
When  the  empty  cars  had  been  gotten  up- 
on the  elevated  track  west  of  the  tunnel 
by  either  process,  the  trainmen  on  the  cars 
would  set  the  brakes  and  anchor  the  cars 
upon  the  elevated  ground.  A  short  distance 
to  the  west  of  the  crusher  building  a  road- 
way crossed  the  spur  track.  The  employes 
of  the  granite  company  were  liable  to  be 
upon  this  roadway,  or  near  or  upon  the 
spur  track,  at  ail  times  of  the  day  in  the 
performance  of  their  duties,  and  there  is  evi- 
dence that  when  the  cars  were  first  brought 
onto  the  switch,  it  was  customary  for  an 
employe  of  the  railway  company  to  ride  upon 
the  most  westerly  of  the  cars  to  give  warn- 
ing to  persons  near  or  upon  the  trade,  to 
avoid  inflicting  Injuries  upon  them,  and  also 
to  set  the  brakes  to  anchor  the  cars  in  the 
desired  positions. 

As  foreman  of  the  quarry  crew,  It  was  the 
duty  of  the  plaintiff  to  see  that  the  cars  were 
properly  loaded.  Preliminary  to  loading  It 
was  necessary  to  have  the  cars  so  placed  on 
the  side  track  that  they  could  be  moved  or 
run  Into  the  tunnel  into  such  positions  as 
would  be  convenient  for  loading,  and  it  was 
customary  for  the  plalntitr  to  be  at  hand 
when  the  empty  cars  were  brought  upon 
the  spur  track,  and  to  see  that  they  were  so 
placed  that  they  could  be  conveniently  han- 
dled and  located  for  loading  them.  When  a 
ear  was  wanted  for  loading,  the  quarry 
crew  would  loosen  the  brakes  and  let  the  car 
drop  down  from  the  elevated  track  west  of 
the  tunnel  onto  the  level  track  under  the 
bins.  When  filled,  the  car  would  be  moved 
onto  the  level  track  east  of  the  tunnel.  June 
11,  1906,  the  loaded  cars  had  been  taken 
from  the  spur  track,  and  four  or  five  empty 
cars  had  been  dropped  down  the  grade  in 
the  spur  track.  The  conductor  was  upon  the 
most  westerly  of  the  cars,  and  there  is  some 
evidence  that  a  brakeman  was  on  the  most 
easterly  of  the  string  of  empties.  After  the 
cars  had  passed  through  the  tunnel  and  as- 
cended the  grade  to  the  west,  the  conductor 
attempted  to  anchor  them  there  by  setting 
the  brake  on  the  car.  The  brake  did  not  op- 
erate, and  the  cars  started  to  returta  along 
the  grade  toward  the  east.  There  is  evidence 
that  the  conductor  got  off  on  the  south  side 
of  the  car,  and  attempted  to  block  the  wheels. 
There  is  evidence  that  when  the  cars  were 
being  brought  in  on  the  spur  track,  the 
plaintiff  came  toward  the  spur  track  from 
the  north,  and  when  he  observed  that  the 
brake  did  not  work,  he  also  tried  to  block 
the  wheels.  Neither  attempt  was  successful, 
and  the  cars  passed  on  into  the  tunnel.  The 
conductor  and  the  plaintiff  met  and  passed 


•For  otlier  eases  see  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  U07  to  data,  *  Reporter  Indexes 


Digitized  by 


Google 


760 


122  NORTHWESTERN  RBPORTEa, 


(Win. 


come  remarks,  and  both  went  Into  the  tun- 
nel. Evidence  was  Introduced  to  the  effect 
that  It  was  customary  for  the  engineer  on 
the  switching  locomotive  to  wait  for  a  sig- 
nal from  the  man  on  the  most  westerly  car 
before  he  moved  the  locomotive  for  the  pur- 
pose of  respottlng  the  cars,  when  this  was 
necessary.  On  the  occasion  In  question  the 
conductor  gave  no  signal.  While  he  was  up- 
on the  car,  and  had  his  hands  upon  the 
brake,  and  while  the  plaintiff  was  in  the  act 
of  helping  to  repair  the  brake,  the  locomotive 
was  brought  into  violent  collision  with  the 
other  end  of  the  string  of  empty  cars,  and 
as  a  result  the  plaintiff  was  thrown  down 
and  terribly  injured  and  maimed.  This  is  an 
appeal  from  a  judgment  In  plaintiff's  favor. 

Walter  D.  Corrigan,  for  appellant  John 
0.  Hart  and  B.  R.  Ooggins,  for  respondent. 

SIEBECKER,  J.  (after  stating  the  facts  as 
above).  The  facts  disclose  no  express  au- 
thority in  the  ix>nductor  to  employ  plaintiff 
to  assist  in  the  conduct  of  defendant's  busi- 
ness. Nor  do  the  facts  and  circumstances 
show  a  condition  which  warrants  the  infer- 
ence that  a  sudden  emergency  had  arisen  In 
the  doing  of  defendant's  business  which  ne- 
cessitated plaintiff's  employment  to  conduct 
the  defendant's  business.  Since  there  Is  no 
ground  shown  upon  which  plaintiff  can  be 
held  to  have  been  the  servant  of  the  defend- 
ant at  the  time  of  accident,  no  liability  for 
this  injury  can  exist  within  the  relationship 
of  master  and  servant 

It  was  plalntllTs  duty,  as  foreman  of  the 
granite  company's  business,  to  attend  the  re- 
ception of  empty  cars,  and  to  see  that  they 
were  so  placed  on  the  side  track  that  they 
could  be  bandied  and  managed  by  the  granite 
company's  employes  for  loading.  He  had  par- 
ticipated In  this  service,  and  had  rendered 
such  assistance  as  occasion  required  to  ac- 
complish this  object.  On  the  day  in  ques- 
tion he  was  so  engaged  while  the  railway 
company's  switching  crew  tried  to  anchor  the 
empty  cars  on  the  westerly  part  of  the  gran- 
ite company's  side  track,  and  while  so  en- 
gaged in  expediting  his  master's  business,  he 
undertook,  with  the  conductor's  consent,  to 
repair  the  car  brake,. and  was  injured.  An 
efficient  brake  was  as  necessary  for  the  con- 
duct of  the  granite  company's  business  as 
that  of  the  defendant  and  its  repair  served 
to  further  the  common  interest  of  both  the 
granite  company  and  the  railway  company. 
Under  such  circumstances  plaintiff  was  not 
a  trespasser  or  intermeddler  as  to  the  defend- 
ant's business,  but  was  engaged  in  that  part 
of  his  master's  business  in  which  it  and  the 
railway  company  had  a  common  interest 
His  assistance  in  repairing  the  brake  was 
therefore  not  a  service  for  the  defendant 
company,  but  one  through  which  he  was  for- 
warding the  interest  and  the  business  of  his 
master.  Under  such  circumstances  the  de- 
fendant's liability  for  the  negligence  of  Its 
servants  Is  recognized  In  the  adjudications. 


In  the  case  of  Welcb  ▼.  Me.  C.  R.  R-  Co., 
86  Me.  562,  30  Atl.  116,  25  L.  R.  A.  658,  the 
court  states  the  rule  to  be  that  where  a 
nier«  volunteer — ^that  is,  one  who  has  no  in- 
terest in  the  work— undertakes  to  assist  the 
servants  of  another,  he  does  so  at  his  -  own 
risk.  In  such  case  the  maxim  of  respondeat 
superior  does  not  apply.  But  where  one  has 
an  Interest  in  the  work,  either  as  consignee 
or  the  servant  of  a  consignee,  or  In  any  other 
capacity,  and  at  the  request  or  with  the  con- 
sent of  another's  servants  undertakes  to  as- 
sist them,  he  does  not  do  so  at  his  own  risk, 
and,  if  Injured  by  their  carelessness,  their 
master  is  responsible.  In  such  case  the 
maxim  respondeat  superior  does  apply.  The 
hinge  on  which  the  cases  turn  is  the  presence 
or  absence  of  self-interest.  In  the  one  case 
the  person  injured  is  a  mere  intruder  or  offi- 
cious intermeddler.  In  the  other,  he  Is  a  per- 
son in  the  regular  pursuit  of  his  own  busi- 
ness, and  entitled  to  the  same  protection  as 
any  one  whose  business  relation  with  the 
master  exposes  him  to  injury  from  the  care- 
lessness of  the  master's  servants.  Other 
cases  illustrative  of  the  rale  are:  Street  By. 
Co.  V.  Bolton,  43  Ohio  St  224,  1  N.  B.  833, 
54  Am.  Rep.  803 ;  Martyn  ▼.  M.  &  I.  Ry.  Co., 
06  Minn.  333,  104  N.  W.  133;  Eason  v.  S. 
&  E.  T.  Ry.  Co.,  65  Tex.  677,  67  Am.  Rep. 
606 ;  Railroad  v.  Ward,  98  Tenn.  123,  38  S. 
W.  727,  60  Am.  St  Rep.  84&  See,  also,  2 
Labatt  Master  and  Servant  {  632.  We  are 
of  the  opinion  that  the  facts  and  circum- 
stances of  this  case  bring  it  within  the  rule 
of  these  cases,  and  make  the  defendant  liable 
for  the  negligence  of  its  servants  which  caus- 
ed the  Injuries.  This  leads  to  the  inquiry 
whether  the  evidence  warrants  the  finding 
that  the  defendant's  servants  were  negligent 
There  is  evidence  tending  to  show  that  the 
side  track  within  and  west  of  the  tunnel  wan 
not  clearly  visible  to  the  trainmen  east  of 
the  tunnel ;  that  the  person  in  charge  of  the 
empty  cars  as  they  passed  over  the  track  to 
the  west  kept  a  lookout  for  persons  to  warn 
them  of  the  danger  of  the  approadilng  cars; 
that  men  and  teams  were  accustomed  to  be 
on  and  near  the  track  during  the  switching 
operation ;  and  that  the  plaintiff  was  custom- 
arily about  there  In  the  course  of  his  duties, 
to  see  that  the  empty  cars  were  properly 
placed  and  anchored  on  the  side  track.  It  Is 
also  in  evidence  that  defendant's  servants  at 
the  time  in  question  kept  no  lookout  and 
gave  no  warning  to  the  plaintiff  of  the  danger 
impending  from  the  baddng  of  the  locomo- 
tive and  the  cars.  In  view  of  the  situation  of 
the  track  tunnel,  and  the  likelihood  of  plain- 
tiff and  others  being  near  and  about  the  track 
and  cars  at  the  time  of  switching.  It  was  in- 
cumbent on  the  defendant's  servants  to  keep 
a  proper  lookout  and  to  give  warning  of  the 
impending  movement  of  the  cars.  From  the 
situation  disclosed  the  jury  were  warranted 
in  concluding  that  defendant's  servants  were 
negligent  as  to  these  duties,  and  failed  to 
give  a  warning  of  the  impending  peril  which 


Digitized  by  VjOOQ  l€ 


WlB.) 


HARLET  V.  HARUBT. 


761 


was  Incident  to  the  switching  and  respottlng 
of  the  cars.  This  Issue  was  submitted  to  the 
jury  by  the  special  verdict  under  appropriate 
Instructions,  and  they  found  that  the  defend- 
ant's servants  were  negligent  in  this  respect 
This  llndlng  cannot  be  disturbed  for  want  of 
evidence  to  support  it,  and  hence  the  defend- 
ant must  be  held  to  have  been  guilty  of  the 
n^ligence  charged. 

It  is  urged  that  the  plaintiff  was  guilty  of 
contributory  negligence  in  taking  0\e  position 
on  the  track  at  the  time  and  place  disclosed 
by  the  evidence.  As  we  have  shown,  plaintiff 
was  not  a  trespasser  or  an  intermeddler.  He 
had  last  observed  the  locomotive  on  the  main 
track  remote  from  the  tunnel,  and  understood 
that  It  would  not  return  onto  the  side  track 
to  respot  the  cars  without  a  signal  from  the 
person  in  charge  of  the  empty  cars,  which  in 
this  case  the  evidence  tended  to  show  was 
the  conductor  who  invited  him  to  assist  in 
repairing  the  brake.  Under  these  circumstan- 
ces It  was  a  question  for  the  Jury  whether 
or  not  he  was  guilty  of  negligence  contribut- 
ing to  produce  his  Injuries.  The  court  prop- 
erly submitted  this  issue  to  them,  and  their 
finding  must  stand. 

There  are  numerous  exceptions  to  rulings 
of  the  court  on  the  admission  and  rejec- 
tion of  evidence  over  defendant's  objection, 
to  refusals  to  submit  additional  questions 
In  the  special  verdict,  to  refusals  to  in- 
struct the  Jury,  and  to  the  Instructions  giv- 
en by  the  court  Of  the  numerous  excep- 
tions to  the  rulings  on  the  admission  and 
rejection  of  evidence  many  (too  numerous  to 
specify  here)  are  mere  irregularities  which 
could  not  have  affected  the  result  to  de- 
fendant's injury. 

It  Is  urged  that  the  ruling  permitting  a 
witness  to  state  that  the  conductor  stated, 
after  plaintiff  crawled  from  under  the  cars, 
"He  did  not  think  himself  that  the  engine 
was  going  to  hit  the  car,"  was  erroneous, 
upon  the  ground  that  there  was  nothing  to 
show  how  long  a  time  had  elapsed  since 
the  accident  Hence  It  was  not  admissible 
as  part  of  the  transaction,  and  could  not  be 
received  as  an  admission  against  the  de- 
fendant We  discover  no  prejudicial  effect 
from  this  statement  It  was  undisputed  that 
tbe  locomotive  hit  the  cars,  that  the  con- 
ductor had  given  no  signal  for  its  backing, 
and  that  he  did  not  expect  it  to  do  so  while 
be  and  plaintiff  were  attempting  to  repair 
the  brake.  The  statement  obviously  related 
to  nncontroverted  facts,  and  hence  Its  ad- 
mission In  evidence  could  not  prejudice  the 
defendant 

Ihe  defendant  objected  to  tbe  form  and 
sufficiency  of  the  special  verdict  We  deem 
tbe  verdict  as  submitted  sufficient  In  form 
and  phraseology,  and  find  that  under  the 
pleadings  and  the  evidence  it  covered  all  the 
Issuable  facts. 

The  Instructions  of  the  court  appropriate- 
ly and  correctly  Informed  the  Jury  of  the 
rules  of  law  applicable  to  the  case.  We  will 
therefore  omit  a  detailed  discussion  of  the 


many  exceptions  presented  to  rulings  refus- 
ing to  give  requested  Instructions  to  the  Jury, 
and  exceptions  to  portions  of  the  Instruc- 
tions given. 

It  Is  strenuously  urged  that  the  court  erred 
In  refusing  to  Instruct:  "Unless  you  are  sat- 
isfied from  the  preponderance  of  the  evi- 
dence that  the  second  question  should  be 
answered  'Xes,'  you  should  answer  it  'No,'" 
The  court  instructed  the  Jury  that  their  an- 
swers to  all  of  the  questions  should  be  "in 
accordance  with  what  you  shall  believe  to 
be  the  fair  weight  of  the  whole  evidence," 
and  then  specifically  directed  them,  in  sub- 
mitting each  question  in  the  special  verdict 
where  the  burden  of  proof  rested  on  the 
plaintiff,  that  If  they  so  affirmatively  be- 
lieved from  the  whole  evidence,  then  they 
should  answer  the  question  accordingly,  and 
if  they  were  not  so  satisfied,  then  they  were 
to  give  the  opposite  answer.  The  phrase- 
ology Is  not  that  usually  adopted  to  ex- 
press the  rule  as  to  the  burden  of  proof, 
and  it  would  have  been  better  if  the  court 
in  framing  the  rule  had  employed  tbe 
phraseology  approved  In  the  decisions  as 
stating  the  rule,  but  we  cannot  say  but  that 
the  language  employed  correctly  Informed 
the  Jury  on  whom  the  burden  of  proof  rested 
respecting  the  Issues  submitted  to  them. 
Though  the  Instruction  Is  not  strictly  ac- 
curate In  form,  we  cannot  say  that  it  mis- 
led the  Jury  or  affected  the  substantial  rights 
of  the  defendant  Beery  v.  C.  &  N.  W.  Ry. 
Co.,  73  Wis.  197,  40  N.  W.  687.  Other  ex- 
ceptions on  like  grounds  need  not  be  noticed 
any  further. 

After  an  examination  of  the  record.  It  does 
not  appear  that  any  of  the  errors  complain- 
ed of  affected  the  substantial  rights  of  the 
defendant,  and  hence  no  prejudicial  error 
appears  In  tbe  record.  Section  2829,  St 
1898;  section  3072m  added  to  St  1898  by 
chapter  192,  p.  205,  Laws  1909. 

Judgment  affirmed. 

WINSLOW,  C.  J.,  took  no  part. 


HARLET  V.  HARLETT. 
(Supreme  Court  of  Wisconsin.     Oct.  5,  1909.) 

1.  Ejectment  (§  17*)— TrrtB  of  Plaintiff— 
Right  to  Possession. 

One  cannot  recover  in  ejectment  unless  he 
Is  entitled  to  possession  at  the  time  he  com- 
mences his  action. 

[Ed.  Note.— For  other  cases,  see  Ejectment, 
Cent  Dig.  8  64;  Dec.  Dig.  S  17.*J 

2.  Ejectment   (|   28*)— Pleadiko— Counteb- 

OLAIM. 

A  legal  defense  in  ejectment  Is  not  pleadable 
as  a  counterclaim  since  otherwise  by  the  forms 
of  i>Ieading8  a  defense  raising  Issues  as  matter 
of  right  commonly  understood  to  be  triable  by  a 
juty  could  be  so  interposed  as  to  require  trial 
by  the  court. 

[Ed.   Note.— For  other  cases,   see  Ejectment, 
Cent  Dig.  J  115 ;   Dec.  Dig.  J  28.*] 

3.  Ejectment  (g  28*)— Aksweb— Sufficienct. 

If  a  person  on  a  sufficient  consideration 
agrees  to  convey  real  estate  to  another  as  his 
property  and  puts  such  other  into  pOBsession 
pursuant    thereto,   who  subsequently,   while   in 


•For  other  ca*w  ■••  sam*  topic  and  section  NUMBER  In  Dec.  ft  Am.  Dig*.  1M7  to  date,  ft  Reporter  Indexes 

Digitized  by  VjOOQ  l€ 


762 


122  NORTHWESTERN  REPORTER. 


(Wis. 


such  possession  dies  Intestate,  leaving  a  widow 
and  children,  the  circumstances  being  such  that 
such  other  could  have  been  judicially  compelled 
■to  convey  the  land,  pursuant  to  the  agreement, 
to  the  executory  vendee  had  he  lived  and  such 
person  nevertheless  brings  ejectment  against  the 
widow  who  is  in  possession  with  her  children) 
such  facts  are  a  good  legal  defense,  and  are 
pleadable  as  an  equitable  defense  as  well  to 
secure  appropriate  relief. 

[Ed.  Note.— For  other  cases,  see  Ejectment,  Cent 
Dig.  ::  81-85;    Dec.  Dig.  I  23.»] 

4.  Bjectuent  (§  47*)— Pasties  Defendant. 

In  the  situation  above  stated  the  defendant 
may  have  the  benefit  of  the  eouitable  defense 
and  obtain  such  affirmative  reliei  as  to  fully  pro- 
tect her  notwithstanding  her  children  are  not 
made  defendants  unless  their  presence  in  the 
litigation  is  necessary  for  their  due  protection 
or  m  order  that  a  full  determination  of  all  the 
issues  may  be  had. 

[Ed.  Note.— For  other  cases,  see  Ejectment,  Cent 
Dig.  {{  140-142;    Dec.  Dig.  {  47.*] 

5.  Ejectment  (g  50*)— Pabties  Defendant. 

In  the  contingency  suggested  the  court 
should  not  dismiss  the  action  nor  render  judg- 
ment in  plaintiff's  favor,  but  should,  on  his  own 
motion,  order  the  necessary  parties  brought  in 
unless  some  one  presently  a  party  so  moves. 

[Ed.  Note.— For  other  cases,  see  Ejectment,  Cent 
Dig.  S  KB;    Dec.  Dig.  {  60.*] 

6.  Homestead  (|  151*)— Doweb  (5  14*)- Bx- 
ECUTOBY  Vendee  —  Rioht  to  i^msMATiTB 
Relief. 

In  the  situation  stated  in  No.  4  the  widow 
for  her  life  or  widowhood  is  the  equitable  owner 
of  the  homestead,  if  there  be  one,  with  the  right 
to  be  clothed  with  the  legal  title  to  that  extent, 
and  the  owner  of  a  dower  right  in  the  other 
lands,  if  there  be  such,  with  the  right  to  be 
clothed  with  such  title  as  will  fully  protect  such 
dower  right. 

tEd.  Note.— For  other  cases,  see  Homestead,  Cent 
Dig.  {  290;  Dec.  Dig.  {  lEl;*  Dower,  Cent  Dig.  i  54; 
Dec.  Dig.  i  14.*] 

7.  Doweb  (§  56*)— Necessity  of  Assignment. 

If  a  widow  with  her  children  is  left  by  the 
death  of  her  husband  In  possession  of  land  in 
which  she  has  a  dower  right  she  may  at  law 
maintain  that  position  without  having  her  dower 
assigned. 

[Ed.  Note.— For  other  cases,  see  Dower,  Cent  Dig. 
S  198;    Dec.  Dig.  S  6«.*] 

8.  Doweb  (§  56*)— Riqhts  of  Widow  in  Pos- 
session. 

A  widow's  dower  in  land  will  enable  her 
not  only  to  defend  her  possession  If  left  therein 
with  her  children  by  her  husband  at  his  decease, 
without  having  such  dower  assigned,  but  wheth- 
er she  has  issue  by  such  husband  or  not  she  may 
maintain  ejectment  to  obtain  such  dower. 

[Ed.  Note.— For  other  cases,  see  Dower,  Cent  Dig. 
§  19S;    Dec.  Dig.  {  56.*] 

9.  Homestead  (§  151*)— Rianre  of  Widow. 

The  homestead  right,  which  descends  as 
such  on  the  death  of  a  husband  leaving  a  widow 
and  children,  attaches  to  the  home  property  even 
though  the  husband  had  only  the  full  equitable 
title  thereto. 

[Ed.  Note.— For  other  cases,  see  Homestead,  Cent. 
Dig.  {  290;    Dec.  Dig.  S  151.*] 

10.  Doweb  (§  14*)— Rioht  Undeb  Equitable 
Title. 

A  full  equitable  title  to  real  estate  and  like 
beneficial  interest  therein,  the  holder  of  the  lepal 
title  having  no  duty  to  perform  in  respect  to  the 
property  except  to  convey  the  legal  title  to  the 
owner  of  the  equitable  title,  is  an  estate  of  In- 
heritance within  the  meaning  of  the  dower  stat- 
ute. 

[Ed.  Note.— For  other  cases,  see  Dower,  Cent  Dig. 
{9  46-47,  49-56;    Dec.  Dig.  i  UM 

Timlin,  J.,  dissenting. 

(Syllabus  by  the  Judge.) 


Appeal  from  Circuit  Court,  Dunn  County; 
E.  W.  Helms,  Judge. 

Ejectment  by  Christ  Harley  against  Freda 
Harley.  Judgment  for  plaintiff,  and  defend- 
ant appeals.  Reversed  and  judgment  direct- 
ed for  defendant, 

Tbe  matter  litigated  and  basis  for  judgment 
as  indicated  in  the  findings  may  be  concisely 
stated  thus:  Plaintiff  holds  the  legal  title  to  the 
premises  in  dispute  consisting  of  eighty  acres  of 
land.  He  is  the  father  of  Charles  Harley  who 
died  intestEtte  August  12,  1903,  leaving  surviving 
the  defendant,  his  widow,  and  three  children. 
Prior  to  the  marriage  of  defendant  and  Charles 
plaintiff  gave  the  latter  the  real  estate  mention- 
ed with  the  understt^nding  that  he  and  defendant 
should  become  man  and  wife  and  move  upon, 
occupy  and  improve  the  premises  as  the  projierty 
of  Charles.  The  legal  title  was  never  parted 
with  by  plaintiff.  The  marriage  contemplated 
took  place  and  all  conditions  of  the  gift  were 
satisfied  b^  defendant  and  Charles  taking  posses- 
sion of  said  premises  as  property  of  the  latter 
and  their  occupying  and  using  the  same  as 
such  thereafter  with  plaintiff's  approbation  till 
Charles  died,  during  which  time  ne  made  valu- 
able improvements  upon  the  land  supposing  that 
he  was  the  real  owner  thereof  and  that  plain- 
tiff would  convey  the  same  to  him  as  he  hsid 
promised  to  do.  September  23,  1907,  and  long 
after  the  commencement  of  this  action  defendant 
became  the  wife  of  one  Johnson.  She  was  in 
possession  of  the  premises  in  dispute  with  her 
children  at  the  time  this  action  was  commenced 
and  has  been  so  circumstanced  since  the  death 
of  her  husband.  No  assignment  of  dower  baa 
been  made  to.  her. 

On  such  facts,  notwithstanding  defendant 
pleaded  all  tbe  facts  stated  as  aforesaid  as  a 
defense  and  also  as  a  counterclaim  and  prayed 
for  judgment  requiring  plaintiff  to  carry  out  hia 
agreement  with  Charles  by  conveying  the  prem- 
ises vesting  In  her  and  ner  children  the  title 
which  would  have  come  to  them  upon  the  death 
of  Charles  had  he  died  seised  of  the  legal  title, 
the  court  decided  that,  since  plaintiff  held  the 
legal  title,  defendant  could  not  prevail  in  eject- 
ment on  her  equitable  defense,  neither  could  she 
prevail  on  her  counterclaim,  without  presence  in 
the  litis^ation  of  her  children,  and  that  though 
plaintiff  had  no  right  to  possession  of  the  prem- 
ises as  against  tbe  heirs  of  Charles,  since 
she  was  not  entitled  to  ijossession  by  virtue  of 
any  dower  Interest,  plaintiff  was  entitled  to 
recover. 

J.  R.  Mathews  and  R.  B.  Bundy,  for  appel- 
lant Arthur  H.  Slioemaker  and  J.  W.  Ma- 
cauley,  for  respondent 

M.'VR  SHALL,  J.  (after  stating  the  facts  as 
above).  The  learned  trial  court  decided  this 
case  upon  the  theory  that,  because  of  plaln- 
tlEt  having  the  bare  legal  title  to  the  proi>erty 
In  question  without  any  real  right  of  posses- 
sion— the  whole  equitable  title  and  beneficial 
interest  being,  as  was  supposed.  In  the  minor 
heirs  of  the  deceased  husband  of  appellant 
and,  necessarily,  also  the  right  to  be  clothed 
with  the  legal  title — he  was  entitled  to  re- 
cover since,  as  the  court  held,  the  facts  could 
only  prevail  In  equity  as  against  him  at  the 
suit  of  the  minora  who  were  not  parties  to 
this  action. 

The  grounds  for  tbe  judgment  are  quite 
novel.  They  seem  to  fatally  conflict  with  the 
elementary  principle  that  in  order  to  enable 
a  person  to  recover  In  ejectment  he  must  at 
least  be  entitled  to  possession  of  the  property 


*For  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1S07  to  date,  A  Reportar  ladexM 

Digitized  by  LjOOQ  l€ 


WlB.) 


HARI.EY  V.  HARLBY. 


763 


In  dispute  at  tbe  time  of  commencing  the  ac- 
tl6n.  One  may  have  the  legal  or  equitable 
title  without  the  right  of  possession,  in  which 
/caae,  obTlousIy,  he  cannot  recorer  In  eject- 
ment, and  the  facts  showing  that  he  has  no 
such  right  constitute  a  legal  defense  and  so 
not  only  need  not,  but  cannot  properly,  be 
Interposed  as  an  equitable  defense  In  the 
form  of  a  connterclaim.  Page  v.  Kennan,  38 
Wis.  320;  La  we  v.  Hyde,  30  Wis.  345-354; 
Pennoyer  t.  Allen,  51  Wis.  360,  8  N.  W.  268 ; 
Brown  v.  Cohn,  88  Wis.  627,  60  N.  W.  826; 
Appleton  Mfg.  Co.  v.  ^'ox  River  Paper  Co., 
Ill  Wis.  465,  87  N.  W.  453.  The  reason  there- 
of Is  that  the  statute  (section  3078,  St.  1898) 
as  it  has  been  construed  provides  that  equi- 
table defenses  only  must  be  pleaded  in  form 
as  counterclaims  and  be  tried  by  the  court. 
Lombard  v.  Cowham,  34  Wis.  486;  Du  Pont 
V.  Davis,  35  Wis.  631 ;  La  we  v.  Hyde,  39  Wis. 
345 ;  Stowell  v.  Eldred,  39  Wis.  614 ;  Fuchs 
T.  Treat,  41  Wis.  404;  Dobbs  v.  Kellogg,  53 
Wis.  448,  10  N.  W.  623;  W^eld  v.  Johnson 
Mfg.  Co.,  86  Wis.  549.  51  N.  W.  378.  There- 
fore it  Is  not  permissible  to  change  the  char- 
acter of  the  trial  tribunal,  as  from  one  of 
law  to  one  of  equity,  by  the  form  of  the 
pleadings.  There  is  an  absolute  right  to  a 
Jury  trial  of  the  legal  issue  In  ejectment. 
That  cannot  be  allowed  to  be  invaded  by 
treating  such  Issue  as  equitable. 

It  cannot  well  be  maintained  but  that  the 
facts  pleaded  and  found  here  constitute  a 
legal  defense  and  so  were  not  required  to  be 
pleaded  as  a  counterclaim,  or  but  that  they 
constituted  such  defense  and  for  reasons 
which  will  hereafter  be  stated  they  constitute 
a  good  equitable  defense  as  well.  The  learn- 
ed trial  court,  as  before  indicated,  held  that 
the  minors  were  the  only  parties  really  in- 
terested adversely  to  respondent  and  that, 
since  they  were  not  parties  to  the  action,  ap- 
pellant could  not  by  counterctaiming  maintain 
her  possession  and  obtain  relief  in  their  favor. 

True,  a  counterclaim,  in  the  general  sense, 
must  'be  one  constituting  a  cause  of  ac- 
tion in  favor  of  the  defendant  against  the 
plalDtifT.  The  trial  court  was  not  called 
upon  to  deal  with  such  a  matter,  but,  at 
the  best  for  respondent,  with  an  equitable 
defense,  one  which  under  the  old  practice 
-was  a  defense  as  distinguished  from  a  coun- 
terclaim. It  must  be  remembered  that  this 
-whole  subject  is  governed  by  the  Code  and, 
therefore,  it  Is  only  confusing  and  mislead- 
ing to  cite  ancient  authorities  or  such  as 
do  not  recognize  fully  the  code  system. 

The  statute  provides  that  "the  defendant 
•  •  •  may  •  *  *  in  his  answer  set 
tip  any  matter  as  a  defense  which  would 
have  heretofore  formed  an  equitable  de- 
fense, In  which  case  the  answer  shall  con- 
tain a  demand  for  such  Judgment  as  he 
claims.  •  •  ♦"  Section  3078,  St  1898. 
Facts  showing  that  a  party,  sued  in  eject- 
ment, is  in  possession  under  or  In  the  right 
of  a  person  who  should  be  clothed  with 
the  legal  title  by  act  of  the  person  seelclng 
to  gain  that  possession  in  ejectment,  has 


been  recognized  as  an  equitable  defense 
under  the  statute.  Hegar  v.  Ch.  &  N.  W. 
R.  Co.,  26  Wis.  624;  Fisher  v.  Moolldf,  13 
Wis.  321.  Facts  in  general  going  to  show 
that,  in  equity,  plaintiff  in  ejectment  is  not 
entitled  to  possession  by  reason  of  the  right 
in  that  regard  being  in  defendant  or  the 
latter  and  others  under  whom  he  rightfully 
'claims  have  been  so  recognized.  Prentice 
V.  Brewer,  17  Wis.  635,  86  Am.  Dec.  730: 
Du  Pont  V.  Davis,  35  Wis.  631-639.  There- 
fore, the  ground  upon  which  the  learned 
trial  court  refused  appellant  the  benefit  of 
the  defense  pleaded  as  a  counterclaim  is 
untenable. 

If  the  pk'ecedlng  were  not  correct  the 
facts  pleaded  constituted  a  plain  legal  de- 
fense to  the  action  as  to  the  homestead 
forty  because  a  legal  right  to  a  full  equita- 
ble title  to  that  descended  to  respondent 
to  hold  for  life  or  during  the  period  of 
her  widowhood  (section  2271,  St.  1898),  and 
was  there  vested  at  tbe  time  of  tbe  com- 
mencement of  this  action  and  for  a  long 
time  thereafter,  as  Indicated  In  the  state- 
ment of  facts.  Moreover,  she  was  entitled 
to  possession  of  the  whole  with  her  chil- 
dren, who  were  the  real  equitable  owners, 
as  their  representative  subject  to  tbe  honie- 
stead  right  and  dower  right,  in  case  of 
there  being  any,  against  any  person  not 
having  a  better  right 

The  appellant  had  on  undoubted  right 
upon  the  facts  stated  as  matter  of  defense 
and  found,  to  Judgment  establishing  her 
right  of  possession.  She  also  had  a  right  on 
the  same  facts  pleaded  as  a  counterclaim, 
to  have  the  affirmative  relief  asked  in  con- 
firmation and  protection  of  her  homestead 
right  Moreover,  if  it  were  necessary  for 
the  other  heirs  to  be  before  the  court  for 
their  due  i>rotectIon  op  otherwise  because 
a  complete  determination  of  the  controversy 
was  Impossible,  which  does  not  seem  to  be 
the  case,  they  should  have  been  brought  in 
under  section  2610,  St.  1898,  whether  there 
was  a  request  therefor  by  either  party  or 
not  Instead  of  rendering  Judgment  for  plain- 
tiff with  costs,  as  was  done.  Section  2610, 
St  1898;  McDougald  v.  New  Richmond  R. 
M.  Co.,  125  Wis.  121-129,  103  N.  W.  244; 
Dflhlman  v.  Milwaukee,  130  Wis.  468-475, 
110  N.  W.  483;  Hagan  v.  McDermott,  134 
Wis.  490-494,  115  N.  W.  138. 

The  trial  court  suggested  without  decid- 
ing, that  appellant  was  not  entitled  to  dow- 
er in  the  property  under  section  2159,  St. 
1898,  since  her  husband  died  seised  of  an 
equitable  title  only.  If  that  be  wrong  the 
Judgment  is  clearly  erroneous  since,  where 
one  'has  an  unasslgned  dower  right  and  Is 
left  at  the  death  of  her  husband,  with 
her  children  In  possession  of  the  property 
In  which  such  right  subsists,  she  may  re- 
tain such  possession  by  virtue  of  section 
3872,  St  1898,  without  having  such  dower 
assigned.  She  may  assert  such  right  ef- 
fectively in  ejectment  both  for  defense  and 
attack.    Section  3094,  St  189&    Here  again. 


Digitized  by  VjOOQ  IC 


764 


122  NORTHWESTERN  REPORTER 


(Wis. 


as  at  substantially  all  points  In  the  matter 
of  Judicial  procedure,  lie  Code  governs,  not 
the  common  law. 

The  question  of  whether  a  widow  Is  en- 
titled to  dower  in  real  estate  of  which  her 
husband  dies  possessed  of  only  a  mere 
equitable  title,  has  been  recently  considered 
and  resolved  in  the  negative  by  this  court 
In  re  Prasser-s  Will,  121  N.  W.  643.  If 
was  there  said  that  an  estate  of  inheritance, 
as  the  term  is  used  in  the  statute,  is  Just 
what  such  term  signified  at  common  law, 
consequently  that  the  statute  gives  dower 
only  out  of  legal  estates.  But  where  the 
husband  dies  seised  of  the  full  equitable  title, 
and  the  owner  of  the  whole  beneficial  in- 
terest with  only  the  mere  legal  title  out- 
standing in  a  person  having  no  duty  to  per- 
form In  respect  to  the  property,  as  in  this 
case,  but  to  convey  it  to  the  equitable  own- 
er, the  estate  is  to  all  Intents  and  purposes 
a  legal  estate, — an  estate  of  Inheritance, 
within  the  meaning  of  the  statute,  in  which 
the  wife  is  entitled  to  dower. 

The  last  foregoing  may  be,  and  probably 
Is,  out  of  harmony  with  some  decisions  else- 
where under  statutes  similar  to  ours,  but  it 
needs  and  will  have  no  defense  at  tills  time 
by  reference  to  supporting  authorities.  It 
is  in  harmony  with  the  doctrine  of  this 
court  that  the  dower  right  is  to  be  favored 
in  the  law  (Munger  v.  Perkins,  62  Wis.  499, 
22  N.  W.  511),  and  the  better  rule  as  we 
are  constrained  to  believe.  If  the  statute 
will  reasonably  permit  of  a  construction 
which  will  save  the  dower  right  and  also 
one  which  will  defeat  it,  and  there  Is  uncer- 
tainty as  to  which  was  In  the  minds  of  the 
lawmakers  when  the  statute  was  adopted, 
the  former  should  prevail.  At  such  time, 
as  now,  such  an  interest  in  real  property  as 
that  of  which  appellant's  husband  died  pos- 
sessed was  regarded  as  realty;  an  estate  of 
inheritance,  in  the  broad  sense  of  the  term, 
which  passes  to  the  heirs  and  to  which  the 
homestead  right  attaches.  Chopin  v.  Runte, 
75  Wis.  361,  44  N.  W.  258.  We  are  entirely 
satisfied  with  the  decision  recently  rendered, 
treating  a  full  equitable  title  and  ownership 
of  the  entire  beneficial  interest  In  realty  and 
right  to  be  immediately  clothed  with  the  legal 
title,  as  here,  as  substantially  a  legal  estate 
and  within  the  meaning  of  the  dower  statute. 

The  Judgment  is  reversed,  and  cause  re- 
manded with  directions  to  render  Judgment 
in  appellant's  favor  in  accordance  with  this 
opinion. 

WINSLOW,  O.  J.,  took  no  part.  TIMLIN, 
J.,  dissents.  ■  , 

McNAUGHTON  v.  DES  MOINEJS  LIFE 

INS.  CO. 

(Supreme  Court  of  Wisconsin.     Oct.  6,  1909.) 

1.  Insurance  (5§  184,  360,  364,  392*)— Premi- 
xnt — Payment — Rebate  Contract  —  Pexal- 
TY— Waiver— Application  of  Credit  by 
Insurer — Lapse— Acquiescence. 

A  life  insurance  company  having  given  a 

person   with  his   policy   an   agency   agreement, 


stipulating  to  pay  him  annually  a  pro  rata  part 
of  a  specified  percentage  of  ail  premiuma  paid 
for  the  ensuing  10  years  on  business  written  in 
specified  territory,  such  payment  to  he  made 
within  thirty  days  after  the  anniversary  date 
of  the  agreement,  coinciding  with  the  last  day 
for  paying  annually  a  policy  premium  with  a 
specified  penalty  to  prevent  lapsine,  and  the 
premiums  having  l>een  made  payable  annually 
with  an  option  to  pay  quarterly,  and  the  assured 
having  t>een  duly  specifically  notified  of  the  due 
date  and  amount  of  the  second  policy  premium, 
the  first  apportionment  under  the  contract  l>eing 
applied  thereon,  and  he  having  paid  accordingly, 
and  due  notice  according  to  custom  having  been 
given  aa  to  the  second  premium  and  agency  ap- 
portionment and  payment  made  of  the  quarterly 
amount,  less  such  apportionment,  and  the  com- 
pany, while  retaining  the  money,  having  claimed 
that  only  one-quarter  of  the  agency  apportion- 
ment was  applicable  on  a  quarterly  premium 
payment,  and  demanded  payment  of  an  addition- 
al amount  equal  to  three-fourths  of  the  agency 
apportionment  within  the  SO  days  for  payment 
with  the  added  penalty,  which  demand  was  not 
complied  with,  and  thereupon  the  company  hav- 
ing invited  the  assured  to  apply  for  reinstate- 
ment under  the  agreement  in  the  policy  in  that 
regard,  representmg  that,  by  the  contract  be 
was  entitled  to  credit  of  only  one-quarter  of 
such  apportionment  on  a  quarterly  premimn. 
and  application  having  been  made  accordingly 
and  allowed,  the  additional  payment  being  the 
same  as  the  unpaid  agency  amount  due  and 
payable  as  aforesaid:  ^ 

(a)  The  giving  of  the  premium  notice  m  the 
second  instance,  as  in  the  first,  estopped  the 
company  from  claiming  that  the  entire  agency 
apportionment  was  not  applicable  upon  the 
amount  payable  on  the  policy  within  the  time 
stipulated  for  payment  of  such  apportionment. 

(b)  Tlie  premium  notice  showing  application 
of  the  agency  apportionment  in  the  second  as  in 
the  first  instance,  constituted  an  actual  payment 
of  the  agency  apportionment  fully  executing  the 
rebating  contract,  if  such  there  were,  for  the 
quarter  the  i>olicy  premium  was  payable. 

(c)  Tile  notice  to  the  assured  after  imyment 
of  the  amount,  unsatisfactory  to  the  company, 
demanding  only  an  additional  amount  equal  to 
three-fourths  or  the  agency  apportionment,  waiv- 
ed the  i>enalty  for  not  making  payment  on  the 
exact  due  date  of  the  premium  if  a  penalty  were 
thereby  incurred. 

(d)  'There  having  l>een  due  and  payable  to  the 
assured  on  the  contract  by  the  day  limited  for 
paying  the  policy  premium,  an  amount  equal 
to  the  balance  claimed  by  the  company  on  the 
policy,  it  was  tiound  to  apply  the  credit  if  neces- 
sary to  prevent  a  lapsing,  and  the  application 
should  l>e  treated  as  having  been  in  eSect  made 
by  operation  of  law. 

(e)  The  assured  having  acted  on  the  false 
representations  of  the  company  in  submitting 
to  its  claim  that  the  policy  nad  lapsed  was  not 
affected  by  the  law  of  surrender  of  rights  by 
acquiescence. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Dec.  Dig.  §i  184,  360,  364,  392.*] 

2.  Insurance  (8  184*)— Pbemiums— Rebate. 

If  an  insurance  company  makes,  ostensibly, 
an  agency  contract  witlf  a  policy  holder  at  the 
date  of  his  policy,  all  as  one  transaction,  for  the 
purpose,  in  fact,  of  rebating  the  cost  of  the  in- 
surance, stipulated  in  the  policy,  such  contract 
is  unenforceable. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Dec.  Dig.  i  184.*] 

3.  Insurance  (|  184*)— Premiums— Rebate. 

The  circumstance  of  a  life  insurance  com- 
pany contemporaneously  making  an  insurance 
agency  contract  With,  and  issuing  to  a  person  a 
life  policy,  the  contract  stipulating  for  payment 
to  tlie  a-ssured  for  services,  not  definitely  men- 
tioned except  by  reference  to  an  application  for 


•For  otiiar  eaaw  we  aam*  topic  and  uctlon  NUMBER  in  D*c.  ft  Am.  Digs.  UOT  to  date.  *  Rcportar  Indexa 

Digitized  by  LjOOQ  l€ 


WlB.) 


McNAUGHTON  v.  DES   MOINES  LIFE  INS.  CO. 


765 


each  contract,  not  prodnced,  of  a  percentage 
each  year  of  the  preminms  received  in  such  year 
for  insurance  wntten  in  specified  territory,  ia 
not  of  itself  suffident  to  sliow  with  reasonable 
certainty  titat  tlie  purpose  of  the  contract  is  to 
circumvent  the  statutory  prohibition  against  re- 
bating policy  premiums. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Dec.  Dig.  i  lg4.»J 

4.  Evidence  (|'  587*)— Presumption  Against 
Violation  ov  Penal  Statute. 

Where  meie  circumstances  are  reasonably 
consistent  with  a  theory  of  violation  of  a  penal 
statute  and  also  inconsistent  therewith,  the  lat- 
ter should  prevail  in  the  absence  of  corroborat- 
ing evidence. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Dec.  Dig.  §  587.  «J 

5.  Insubance  (S  184*)— Pbbmidm— Rebate- 
Effect  ON  POLICT. 

An  executed  agreement  for  rebating  a  policy 
premium  contrary  to  the  statute  on  the  subject 
renders  the  rebater  liable  to  the  statutory  pen- 
alty but  does  not  render  the  policy  void  or  void- 
able. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Dec.  Dig.  i  184.*] 

6.  Insubance  (S  646*)  —  Application  of 
Credit  by  Insureb  to  Premium— Presump- 
tion. 

If  money  is  absolutely  due  and  payable 
from  an  insurance  company  to  a  policy  holder 
l)efore  the  due  date  of  his  premium  the  company 
should  applif  the  credit  if  necessary  to  save  the 
policy,  and  in  judicial  proceedings  involving  the 
matter  such  application  should  be  conclusively 

S resumed  to  have  been  made,  especially  if  such 
ad  been  the  custom  of  the  company  as  to  the 
particular  ijolicy. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Dec.  Dig.  §  646.*] 

7.  Insurance  (§  365*)— Lapse— Estoppel. 

If  a  person,  erroneously  supposing  his  poli- 
cy to  have  lapsed,  his  view  in  that  regard  being 
induced  in  whole,  or  in  part  by  a  false  position 
on  the  phrt  of  the  insurer,  applies  successively 
for  reinstatement  under  the  clause  of  the  policy 
permitting  it,  he  is  not  precluded  thereby  from 
thereafter  insisting  that  the  policy  did  not  in 
fact  lapse. 

[ESd.  Note. — ^For  other  cases,  see  Insurance, 
Dec.  Dig.  {  865.*] 

8.  Contbaots  (i  305*)— Implied  Waiver. 

If  a  person  with  knowledge,  actual  or  con- 
structive, so  acts  in  regard  to  contractual  rela- 
tions that  the  reasonable  inference  under  all  the 
circumstances  is  that  he  has  abandoned  a  claim 
of  right,  and  the  adverse  party  in  such  relations 
acts  on  the  faith  of  such  inference,  as  a  general 
rule  an  effectual  intent  to  waive  is  implied 
though  there  is  no  such  intent  in  fact,  and  even 
if  there  l>e  an  undisclosed  intent  to  the  contrary, 
and  regardless  of  any  element  of  estoppel  strict- 
ly speaking. 

[Bd.  Note.— For  other  cases,  see  Contracts, 
Dec.  Dig.  §  305.*] 

9.  Insurance  {|  646*>— Premium  —  Rebate  — 
Burden  of  Pboof. 

In  case  of  an  insurance  company  seeking 
to  reap  advantage  from  its  own  turpitude  as  to 
violating  the  law  against  rebating,  tor  the  pur- 
pose of  avoiding  a  policy  agreement,  the  burden 
IS  upon  it  to  establish  the  facts  in  that  regard 
to  a  reasonable  certainty. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Dec  Dig.  i  646.*] 

(Syllabus  by  the  Judge.) 

Appeal  from  Circuit  Court,  Trempealeau 
County ;   J.  J.  Fruit,  Judge. 


Action  by  Vera  Sarah  McNaughton  against 
the  Des  Moines  Life  Insurance  Company. 
Judgment  for  defendant,  and  plaintiff  ap- 
peals. Reversed  and  remanded,  with  direc- 
tions. 

Action  by  a  beneficiary  to  recover  on  an 
insurance  policy.  The  policy  was  issued  by 
defendant,    an    Iowa   corporation,    June   15, 

1903,  at  Whitehall,  Trempealeau  county.  Wis. 
It  required  payment  of  a  premium  of  $156.10, 
at  the  issuance  of  the  policy  and  the  same 
annually  thereafter,  or  a  specified  amount 
semiannually  or  quarterly,  the  latter  rate 
being  $41.35,  per  quarter.  It  provided  in 
case  of  default  for  an  extension  of  30  days 
with  the  privilege  of  making  payment  by 
adding  10  cents  per  $1,000  of  the  Insur- 
ance, otherwise  for  a  lapse  subject  to  rein- 
•itatement  of  the  policy  upon  the  assured  fur- 
nishing a  satisfactory  certificate  of  good 
health  signed  by  the  assured  and  a  reputable 
physician  on  a  form  furnished  for  that  pur- 
pose and  approval  by  certain  specified  offi- 
cers; also  that  the  policy  should  be  incon- 
testable after  two  years  in  case  all  premiums 
up  to  that  time  being  duly  paid ;  further.  In 
case  of  the  policy  lapsing  after  full  payment 
of  premiums  for  three  years,  that  the  as- 
sured should  haVe  certain  specified  rights. 
The  Incontestable  clause  was  satisfied.  The 
I)ollcy  was  issued  pursuant  to  an  application 
stipulating  that  all  statements  contained 
therein  should  be  regarded  as  material  to  the 
risk  and  warranties. 

Accompanying  the  policy  there  was  a  spe- 
cial agency  contract  entitling  the  assured  so 
long  as  the  contract  was  kept  In  force  to 
a  pro  rata  proportion  annually  for  a  period 
of  20  years  of  7  per  cent,  of  all  premiums 
paid  for  the  ensuing  10  years  on  business 
written  In  this  state,  the  same  to  be  taken 
from  the  expense  element  of  such  premium 
and  apportioned  annually  within  60  days 
after  the  1st  day  of  January  in  each  year 
and  paid  within  30  days  after  the  anniversa- 
ry date  of  the  contract.  February  17,  1904, 
defendant  gave  the  assured  notice  of  an  ap- 
portionment in  his  favor  of  $13.23.  Season- 
ably it  gave  him  the  usual  premium  notice 
of  the  due  date  of  the  annual  premium  for 

1904,  deducting  the  $13.23,  though  it  was  not 
payable  till  July  15th  thereafter.  He  sent 
the  balance  pursuant  to  the  notice.  It  was 
accepted.  Seasonably  for  1905  defendant 
gave  the  assured  written  notice  of  an  appor- 
tionment in  his  favor  under  the  agency  con- 
tract of  $14.60,  payable  July  15,  1905.  No- 
tice of  the  next  annual  premium  was  given 
crediting  thereon  the  $14.60,  In  harmony 
with  the  transaction  of  the  previous  year. 
The  assured  elected,  as  he  had  a  right  to  do. 
to  pay  June  16,  1905,  a  quarterly  premium. 
For  that  he  remitted  the  proper  amount 
less  the  apportionment  of  $14.60.  He  was 
thereupon  notified  he  could  not  be  permit- 
ted. In  such  a  case,  to  deduct  more  than  a 


•For  other  eaui  ne  same  topic  and  ssctloa  NVMBHR  In  Dec.  *  Am.  Digs.  ISOT  to  date,  *  Reporter  Index* 

Digitized  by  LjOOQ  l€ 


766 


122  NORTHWESTERN  REPORTER. 


(Wla 


quarter  of  such  apportionment  and  to  re- 
mit $10.95.  to  malie  up  full  quarteriy  pay- 
ment. He  failed  to  do  bo  or  claim  any  rlglit 
under  tlie  30-day  extension  element  of  tlie 
policy  and  was  thereupon  notified  ttiat  It 
iiad  lapsed,  leaving  him  the  privilege  of  re- 
instatement as  provided  therein  and  sent 
him,  at  the  same  time,  a  form  for  the  requi- 
site health  certlflca^.  He  furnished  the 
certlflcate  properly  executed.  He  stated 
therein  that  he  was  of  sound  constitution,  io 
good  health  and  that  since  the  date  of  the 
original  application  be  had  not  been  afflicted 
with  any  8i(<lcness  or  disease  whatever,  nor 
consulted  or  been  attended  by  any  physi- 
cian, and  warranted  such  statements  to  be 
true,  agreeing  that  otherwise  the  insurance 
should  be  void.  Attached  thereto  was  a 
physician's  certificate  of  good  health  and 
rlslc  Due  payment  of  the  requisite  amount 
was  made,  the  application  for  reinstatement 
approved  and  a  certificate  accordingly  Issued 
July  28,  1005,  providing  that  its  validity 
should  depend  upon  the  warranties  contained 
in  the  application  therefor  being  true  and 
the  assured  being  in  good  health  and  of 
temperate  habits  on  the  date  of  the  rein- 
statement   He  died  February  10,  190C. 

Conditions  precedent  to  the  commencement 
of  the  action  were  satisfied.  The  pleadings 
put  in  Issue  the  question  of  whether  the  pol- 
icy lapsed  for  nonpayment  of  the  premium 
of  June  15,  1905,  whether  the  declarations 
in  the  application  for  reinstatement  that 
the  assured,  at  the  date  thereof,  was  In  good 
health;  that  since  the  date  of  the  original 
application  he  had  not  been  afflicted  with 
any  disease  or  sickness  whatever,  nor  con- 
sulted or  been  attended  by  any  physician, 
were  true  and  pleaded  that  Immediately  up- 
on discovering  such  declarations  to  be  un- 
true it  disclaimed  any  intention  to  appropri- 
ate the  money  paid  for  the  reinstatement 
and  that  it  was,  thereafter,  at  all  times  In 
re.idiiiess  to  return  the  same  to  the  person, 
or  persons,  entitled  thereto. 

The  cause  was  submitted  to  the  jury  on 
the  evidence  In  respect  to  the  Issues  raised 
as  aforesaid,  resulting  in  a  special  verdict, 
as  follows: 

"Q.  1.  Was  said  A.  J.  McNaughton  of 
sound  constitution  on  the  25th  day  of  July, 
1005,  when  he  signed  the  certificate  of  rein- 
statement? 

"Answer.  Tes. 

"Q.  2.  Was  said  A.  J.  McNaughton  In 
good  health  on  the  25th  day  of  July,  1905, 
when  he  signed  the  certlflcate  for  reinstate- 
ment? 

"Answer.  Yes. 

"Q.  3.  Had  said  A.  J.  McNaughton  been 
afflicted  with  any  disease  or  sickness  what- 
ever between  the  date  of  his  application  for 
the  policy  of  insurance  in  question  and  the 
date  when  he  signed  the  certificate  for  re- 
instatement of  lapsed  policy  on  the  25th  day 
of  July,  1905? 

"Answer.  No. 


"Q.  4.  Had  said  A.  J.  McNaughton  con- 
sulted or  been  attended  by  any  physician  at 
any  time  between  the  15th  day  of  June,  1903» 
and  the  25th  day  of  July,  1905? 

"Answer.  No." 

The  court  on  motion  changed  the  answer 
to  the  fourth  question  from  "No"  to  "Yes," 
refused  to  change  the  answer  to  either  the 
first,  second  or  third  question  and  rendered 
Judgment  dismissing  the  action  with  costs. 
The  plaintiff  appealed. 

Anderson  &  Ekern,  for  appellant.  Robert 
S.  Cowle  and  Edward  Lees,  for  respondent 

HARSHAIX,  J.  (after  stating  the  facts  as 
above).  Respondent's  counsel  make  the  point 
that  the  contract  which  accompanied  the 
policy,  was  an  evasion  of  the  anti-rebate  law, 
rendering  the  credit  which  assured  applied 
on  his  quarterly  payment  Ineffectual,  thus 
leaving  him  In  default  and  causing  a  lapse  of 
the  policy.  The  trial  court  does  not  appear 
to  have  passed  on  that  question,  but  if  coun- 
sel be  right  the  fact,  in  one  aspect  of  the 
case,  must  render  the  Judgment  right  even 
if  the  court  below  was  wrong  as  to  the  pai^ 
tlcular  matters  complained  of  by  appellant 

It  was  held  in  Urwan  v.  Northwestern  Mu- 
tual Life  Ins.  Co.,  125  Wis.  349,  103  N.  W. 
1102,  that  a  transaction,  somewhat  similar 
to  that  which  occurred  In  this  case,  pur- 
suant to  an  agreement  on  the  part  of  the 
insurance  company  indicating  that  the  os- 
tensible purpose  waq  not  the  real  one,  but 
was  to  rebate  the  regular  cost  of  the  In- 
surance, as  an  Inducement  to  taking  out  the 
same,  was  unenforcible.  It  must  be  noted 
that  there  was  proof  In  that  Instance,  in- 
dicating the  intention  of  the  parties,  other 
than  the  mere  production  of  an  agency  con- 
tract, as  in  this  case,  referring  to  an  applica- 
tion not  offered  in  evidence  that  might  ex- 
plain the  transaction.  There  is  no  connec- 
tion here,  on  the  face  of  the  papers,  be- 
tween the  agency  contract  and  the  policy, 
except  the  mere  fact  that  the  two  writings 
were  made  at  the  same  time.  In  the  Urwan 
Case  the  payments  agreed  to  be  made  to  the 
so-called  agent  were  fixed  in  amount  and  the 
policy  premiums  were  to  be  likewise,  as  the 
company  represented.  That  was  quite  signi- 
ficant as  showing  that  the  real  purpose  was 
to  rebate  the  latter  without  any  equivalent 
consideration.  There  were  other  circumstan- 
ces in  proof  showing  conclusively  that  such 
was  the  mutual  Intention.  In  this  case  there 
was  an  entire  absence  o.'  such  proof,  while 
the  agency  contract  provided  for  compensation 
contingent  upon  the  business  written  in  this 
state,  and  the  consideration  to  be  rendered 
therefor  may  well  be  presumed  to  have  been 
specified  Id  the  application  referred  to  In  the 
writing,  which,  as  before  Indicated,  was  not 
produced  In  evidence.  Under  the  circumstan- 
ces there  is  room  only  for  suspicion  that  the 
purpose  of  the  transaction  was  to  evade  the 
anti-rebate  law.  Contractual  transactions 
are  not  to  be  avoided  In  favor  of  one  of  the 


Digitized  by  LjOOQ  l€ 


wis.) 


McNAUOHTON  v.  DES  MOINES  LIFE  INS.  CO. 


767 


parties  who  seeks  to  avoid  bis  obligations, 
on  mere  sasplclon.  Tbe  court  will  not  pre- 
sume from  circumstances  which  are  con- 
sistent or  Inconsistent,  according  to  the  view- 
point from  which  they  are  measured,  with 
a  violation  of  a  penal  statute,  that  such 
violation  occurred  In  tbe  particular  case, 
without  sufDclent  corroborating  evidence  to 
establish  It  to  a  reasonable  certainty.  While 
courts  should  firmly  enforce  the  policy  of 
the  law  against  rebating  they  should  not  go 
so  far  as  to  cast  the  burden  of  proof  upon  a 
policy  holder  to  show  that  there  was  no  such 
violation,  upon  the  company  Involved  seeking 
to  escape  Its  obligation  upon  tbe  theory  that 
it  is  a  lawbreaker. 

There  is  a  further  reason  why  respondent 
cannot  Invoke  the  anti-rebate  law  to  defeat 
the  policy  claim  In  this  case.  In  Laun  v. 
Pacific  Mutual  Insurance  Co.,  131  Wis.  55A, 
111  N.  W.  860,  8  L.  R.  A.  (N.  S.)  1204,  it  was 
held  that  an  executed  agreement  for  rebate 
of  a  policy  premium,  while  constituting 
ground  for  punishing  the  rebater  as  the 
statute  provides,  does  not  render  the  policy 
void, — that  the  latter  purpose  was  not  within 
the  fair  meaning  of  the  statute  and  that  the 
rule  of  Urwan  v.  Insurance  Co.,  supra,  goes 
no  further,  as  to  the  rights  of  a  policy  holder, 
than  to  render  executory  agreements  for  the 
rebating  of  premiums  not  specified  in  the 
policy  unenforcible.  As  we  view  this  case. 
If  the  purpose  of  the  agency  agreement  was 
to  rebate  the  premiums  specified  on  the  face 
of  the  policy,  it  was  fully  executed  as  to  the 
premium  in  question  and  until  tbe  policy 
matured. 

As  indicated  in  the  statement,  before  the 
first  premium  became  payable  after  the  as- 
sured received  his  first  credit  upon  the  agen- 
cy contract  he  was  duly  notified  thereof,  and 
of  such  credit  As  between  the  parties,  on 
the  face  of  tbe  record,  when  that  premium 
fell  dne  June  15,  1904,  respondent  owed  the 
assnred  $13.23,  as  a  credit  on  such  contract, 
payable  July  15th  thereafter,  or  within  the 
time  such  premium  was  payable  by  addition 
of  the  trifling  sum  of  fifty  cents  as  a  pen- 
alty for  not  making  payment  at  tbe  precise 
date.  Previous  to  such  date,  as  appears,  re- 
spondent notified  the  assured  of  how  it  pro- 
posed to  treat  tbe  agency  credit  by  sending 
him  a  notice  of  the  premium,  applying  there- 
on such  credit.  From  that  circumstance  the 
assured  had  a  right  to  assume  that  such 
credits  in  the  future  would  be  likewise  treat- 
ed. The  respondent  was  precluded  by  the 
plainest  principles  of  estopi)el  from  claiming 
to  the  contrary  to  the  prejudice  of  the  as- 
sured, as  to  any  subsequent  payment,  made 
before  it  gave  the  assured  notice  of  a  change 
of  its  position. 

When  the  next  annual  payment  came  due, 
subject  to  the  right  of  making  quarterly  pay- 
ments, respondent  gave  the  assured  the  usual 
premium  notice,  applying  the  agency  credit 
as  before.  Then  for  the  first  time,  and  after 
tbe  quarterly  payment  was  made  with  the 
credit  and  cash,  and  after  the  time  for  pay- 
ment without  incurring  tl>e  aforesaid  penalty 


of  fifty  cents,  the  assured  was  notified  that: 
"In  cases  where  the  premiums  are  paid 
quarterly,  one-fourth  of  the  apportionment 
Is  credited  upon  each  quarterly  paymen''. 
Therefore,  it  will  be  necessary  for  you  to 
send  us  $10.95,  additional  in  order  to  receive 
full  credit  for  the  current  quarterly  under 
the  iwlfcy  referred  to."  That  was  an  en- 
tire change  of  front,  as  the  assured  had  a 
right  to  view  the  matter. 

There  was  nothing  In  the  writing  indicat- 
ing how  the  agency  credit  should  be  applied 
or  that  the  same  should  be  applied  at  all. 
The  communication  quoted  involved  a  sug- 
gestion that  the  company  asserted  a  right  to 
bold  the  balance  of  the  agency  credit  and  ap- 
ply the  same  in  $3.65,  credit  installments  on 
quarterly  policy  premiums  as  they  fell  due 
during  the  year,  while  the  agreement  was  for 
payment  of  the  entire  amount  by  July  15, 
1005.  The  assured  had  a  right  to  assume 
that  the  mere  use  of  the  $14.00,  for  the  30 
days,  amounting  to  about  7  cents,  was  not 
considered  by  respondent  of  any  consequence 
and  that  it  would  waive  the  precise  due  date 
of  the  credit  as  before.  Moreover,  in  call- 
ing for  the  additional  payment  of  $10.95,  aft- 
er the  penalty  was  incurred,  such  penalty 
was  waived.  So  on  July  16tb  thereafter, 
by  respondent's  conduct,  it  was  permissible 
for  the  assured  to  pay  the  additional  $10.95 ; 
tbe  precise  amount  then  due  of  the  agency 
credit  in  any  view  of  the  case,  and  save  a 
forfeiture,  and  be  may  well  have  assumed  it 
would  be  then  used  to  save  the  policy  from 
lapsing  according  to  tbe  well-established 
rule  that  it  is  the  duty  of  an  insurance  com- 
pany to  apply  dues  from  it  to  an  assured, 
presently  payable,  upon  his  premium  like- 
wise payable,  if  necessary  .to  prevent  a  for- 
feiture, especially  where,  from  previous 
transactions  between  tbe  parties  the  assured 
had  a  right  to  rely  upon  such  application 
being  made. 

Tbe  contention  of  appellant's  counsel  on 
the  point  last  discussed  we  regard  as  sound 
and  abundantly  supportecl  in  principle  by 
authorities  cited  to  our  attention  and  many 
others.  Hull,  Adm'r,  v.  Northwestern  Mutu- 
al Life  Ins.  Co.,  39  Wis.  397;  Matlack  v. 
Bank,  180  Pa.  360-386,  30  Atl.  1082;  Van 
Norman  v.  Northwestern  Mutual  Life  Ins. 
Co.,  51  Minn.  57,  52  N.  W.  088;  Girard  Life 
Ins.  Co.  V.  Mutual  Life  Ins.  Co..  97  Pa.  15; 
Chicago  Life  Ins.  Co.  v.  Warner,  80  III. 
410;  Insurance  Company  v.  Dutcher,  95  U. 
S.  260-272,  24  I*  Ed.  410;  The  Northwestern 
Mutual  Life  Ins.  Co.  v.  Ross,  63  Ga.  199; 
Northwestern  Mutual  Life  Ins.  Co.  v.  Fort's 
Adm'r,  82  Ky.  269;  Franklin  Life  Insur- 
ance Co.  V.  Wallace,  93  Ind.  7 ;  Northwestern 
Mutual  Life  Ins.  Co.  v.  Little,  56  Ind.  504. 

It  would  be  useless  to  argue  that  applica- 
tion of  the  agency  credit  was  not  In  fact 
made,  therefore  the  agreement  to  pay  the 
same  was  executory  and  withia  the  condem- 
nation of  the  Laun  Case  because,  primarily, 
as  we  have  seen.  It  was  not  established  that 
tbe  agency  agreement  was  a  rebating  con- 
tract:   secondarily,  because  the  application 


Digitized  by  VjOOQ  l€ 


768 


122  NORTHWESTERN  REPORTER. 


(Wis. 


was  in  fact  made,  as  the  aasared  had  a  right 
to  assnme  when  the  preminm  notice  was 
sent;  and,  thlrdl7,  since  in  any  event  It 
was  the  duty  of  the  respondent  to  make  the 
application  on  or  before  July  15,  1905,  the 
assured  had  a  right  to  assume  that  such 
application  would  be  made  if  necessary  to 
save  his  policy,  and  the  court  in  such  a  case 
must  tT<eat  that  which  ought  to  have  been 
as  in  fact  done. 

But  it  is  Insisted,  on  respondent's  part, 
that,  by  the  assured  applying  for  reinstate- 
ment of  the  policy,  treating  the  same  as 
having  lapsed,  and  his  having  been  rein- 
stated, accordingly,  there  was  conclusive 
acquiescence  In  the  claim  of  respondent  in 
that  regard.  On  that  Teeter  v.  United  life 
Ins.  Ass'n,  159  N.  Y.  411-416,  64  N.  B.  72, 
is  relied  on.  It  la  tiie  opinion  of  the  court 
that  the  rule  there  adopted  is  somewhat 
harsh  and  carried  the  doctrine  of  loss  of 
rights  by  mere  waiver  rather  to  the  limit, 
if  not  beyond,  its  boundaries  as  laid  down 
by  this  court  In  Pabst  Brewing  Co.  v.  Mil- 
waukee, 126  Wis.  110,  105  N.  W.  563. 

There  can  be  no  waiver  without  at  least 
implied  Intent  to  waive  based  on  knowledge, 
actual  or  constructive,  of  the  facts.  Where 
the  reasonable  inference  from  the  whole 
situation  between  parties  in  contractual  re- 
lations. Is  that  one  of  them  with  knowledge, 
actual  or  constructive,  has  waived  or  aban- 
doned a  claim  of  right  and  the  other  relying 
thereon  has  acted  accordingly,  generally 
speaking,  an  efTectual  intent  to  waive  is 
implied  "regardless  of  whether  there  was  an 
actual  or  an  express  Intent  to  waive,  or 
even  if  there  was  an  actual  but  undisclosed 
Intent  to  the  contrary  even,"  whether  there 
is  any  element  of  estoppel,  strictly  so-called 
or  not  Such  is  the  doctrine  of  mere  waiver 
as  approved  in  the  Pabst  Brewing  Company 
Case.  Whenever  a  case  falls  clearly  within 
that  principle  it  must  be  held  to  be  governed 
thereby.  Those  arising  under  Insurance  con- 
tracts cannot  be  excepted,  neither  can  an  ex- 
ception be  made  because,  merely,  of  appar- 
ent hardship  in  the  particular  instance.  De- 
parture from  that  would  turn  judicial  ad- 
'  ministration  into  the  uncertain  field  of  mere 
arbitration. 

It  may  be  that  Teeter  v.  United  Life 
Ins.  Ass'n,  supra,  is  wltliin  the  principle 
of  waiver  above  Indicated.  Certain  it  is 
that  the  learned  court  in  pronouncing  Judg- 
ment thought  80.  The  opinion  of  the  court 
here  is  that  the  case  goes  a  little  too  far 
and  yet  has  some  distlnguis^hing  charac- 
teristics from  the  one  in  hand,  tending  to 
locate  the  latter  outside  the  principle  under 
discussion  if  the  former  is  within  it.  In 
the  one  there  was  good  ground  on  the  com- 
pany's part  for  claiming  a  forfeiture,  as  the 
assured  must  have  known,  while  here  the 
assured  had  no  good  reason  to  think  re- 
spondent's position  was  tenable.  In  the  New 
York  case  the  assured  may  well  have  sup- 
posed, the  mere  shadowy  chance  be  had  for 
maintaining  that  his  policy  was  In  force  not- 
withstanding the  claimed  default,  was  of 


too  little  consequence  to  warrant  Insistlns 
upon  it,  while  here  the  facts  are  so  plainly 
conclusive  in  favor  of  the  position  that  no 
lapse  had  in  fact  occurred,  that  it  seems  the 
assured  could  not  have  intended  to  waive 
the  certainty  for  the  uncertain  outcome  of 
an  application  for  reinstatement,  but  rather 
thought  he  might  well  avoid  a  troublesome 
controversy  with  respond^it  by  going  through 
the  form  of  complying  with  its  demand 
without  prejudice  to  his  rights,  even  if  the 
application  for  reinstatement  should  be  de- 
nied, since  no  pecuniary  penalty  was  in- 
Tolved,  as  seems  to  have  been  the  case. 
Moreover  the  lettv  of  the  assured  accompa- 
nying the  application  for  reinstatement, 
shows  upon  its  face,  that  he  recited  in  such 
application  that  the  policy  had  lapsed,  us- 
ing the  printed  form  supplied  by  respond- 
ent, because  the  latter  had  so  stated  In  Its 
communication  to  him  in  such  a  way  as  to 
lead  to  the  belief  that  by  the  terms  of  the 
agency  contract  he  had  no  right  to  deduct 
from  the  quarterly  payment  but  one-fourtb 
of  the  agency  apportionment.  He  said  in 
such  letter: 

"I  am  very  sorry  to  cause  yon  all  this 
trouble  but  I  must  have  misunderstood  my 
contract.  I  understood  from  my  policy  that 
I  can  pay  my  premiums  quarterly  if  I  wish 
the  rate  to  be  $41.35.  My  contract  states 
that  my  commissions  are  payable  within 
thirty  days  of  the  anniversary  of  the 'date 
of  the  policy."  (Meaning  evidently  contract) 
"I  deducted  the  total  amount  ($14.60)  after 
reading  this." 

Thus  the  application  f or  rdnstatement  was 
made,  supposing,  as  respondent  well  knew, 
from  its  attitude,  that  he  misunderstood  the 
contract  Its  letter  inferentially  stated  that 
the  agency  apportionment  for  any  year,  by 
the  contract,  was  so  payable  as  to  render 
the  whole  or  only  a  quarter  applicable  upon 
a  single  premium  payment,  according  as 
the  assured  should  decide  to  pay  annually  or 
quarterly,  which  was  not  the  case.  This 
rather  rebuts  the  idea  of  acquiescence  and 
intention  to  waive  with  knowledge,  actual 
or  constructive,  of  the  facts. 

Without  further  discussion  of  the  ques- 
tion of  waiver,  it  is  the  opinion  of  the  court 
that  the  law  on  that  subject  is  In  favor  of 
appellant.  Such  being  the  case,  all  ques- 
tions as  to  reinstatement  of  the  policy, 
which  were  resolved  in  respondent's  favor 
by  court  and  jury,  resulting  in  the  Judgment 
complained  of,  are  immaterial.  That  leads 
to  the  result  that,  on  the  undisputed  evi- 
dence, Judgment  should  have  been  given 
for  plaintiff  as  demanded  in  the  complaint 
upon  the  motion  which  was  in  effect  made 
therefor  notwithstanding  the  verdict,  and 
the  case  must  now  take  the  course  which 
It  ought  to  have  taken. 

The  judgment  is  reversed,  and  the  cause 
remanded  with  dhrectlons  to  render  Jud^ 
ment  in  accordance  with  this  opinion. 


WINSLOW,  a  J,  tools  no  part    . 

Digitized  by  LjOOQ  IC 


wis.) 


OASTELLO  V.  CITIZENS'  STATE  BANK. 


769 


CASTELLO   ▼.    CITIZENS'    STATE    BANK 
OF  MANAWA. 

(Supreme  Court  of  Wisconsin.     Oct  6,  1909.) 

1.  Banks  and  Banking  (S  154*)— DEPOsirs— 
Action  to  Recoteb— VABiAircE. 

Plaintiff  sued  defendant  bank  to  recover  an 
alleged  deposit  charging  that  it  was  payable  on 
demand,  and  that  demand  had  been  made  and 
payment  refused.  The  proof  showed  that  plain- 
tiffs husband  deposited  the  money  in  the  oanli, 
statinK  to  the  cashier  that  the  mone^  was  de- 
posited for  plaintiff,  and  that  the  cashier  should 
execute  to  her  a  certificate  of  deposit.  The 
cashier  informed  plaintiff  that,  if  she  left  the 
money  in  the  banlc  six  months,  she  would  get 
3  per  cent,  interest,  at  the  same  time  wrote 
out  and  handed  to  her  his  personal  checic  on 
the  bank,  which  plaintiff  accepted,  thinking  it 
to  be  a  certificate  of  deposit  and  kept  it  for 
several  months,  when  she  demanded  payment 
from  the  bank,  there  being^  nothing  to  suggest 
a  loan  of  money  from  plaintiff  to  the  cashier 
other  than  the  check.  Held,  that  the  evidence 
did  not  constitute  a  fatal  variance,  in  that  it 
showed  a  loan  to  the  cashier,  and  not  a  de- 
posit. 

[Kd.  Note. — For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  i  154.*] 

2.  Banks  and  Banking  (§  154*)— Deposits- 
Action  TO  Recoveb— Questions  fob  Jury. 

In  an  action  to  recover  a  bank  deposit, 
evidence  held  to  require  submission  to  the  jury 
of  the  question  whether  the  cashier  understood 
that  plaintiff  and  those  speaking  for  her  were 
proposing  a  contract  of  deposit  between  plain- 
tiff and  the  bank  through  the  cashier  in  his 
oflScial  capacity,  and  whether  the  cashier  did 
not  in  that  capacity  assent  to  the  same  or 
designedly  lead  plaintiff  to  believe  that  he  as- 
sented thereto  prior  to  the  execution  of  his 
check  for  the  amount. 

[Ed.  Note.— For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  8  154.*] 

8.  Banks  and  Banking  (g  121*)— Deposits— 

Contbaci^Waiveb. 
^  Where  mone^  was  deposited  in  a  bank  for 
plaintiff,  a  marned  woman  of  no  business  ex- 
perience, she  believing  it  to  be  a  time  deposit 
contract,  while  the  cashier,  instead  of  issuing 
a  certificate  of  deposit,  issued  his  personal  check 
therefor,  plaintiff's  failure  to  examine  the  in- 
strument from  August  28,  1906,  until  January 
19,  1907,  and  ascertain  its  character,  did  not 
estop  her  to  claim  that  the  contract  was  one 
of  deposit,  and  not  a  loan  to  the  cashier. 

[Ed.  Note.— For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  {  121.*] 

4.  Banks  and  Banking  ({  121*)— Deposit- 

Contbact— Waivek. 

Where  there  was  first  a  valid  contract  of 
deposit  between  plaintiff  and  defendant  bank 
acting  through  its  cashier  who  without  plain- 
tiff's knowledge  or  consent  substituted  his  per- 
sonal check  for  what  she  believed  was  a  cer- 
tificate of  deposit,  plaintiff's  retention  of  the 
check  without  knowledge  of  its  real  character 
for  several  months  did  not  constitute  a  waiver 
of  the  deposit 

[Ed.  Note.— For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  g  121.*] 

Appeal  from  Circuit  Court,  Waupaca  Coun- 
ty;  Charles  M.  Webb,  Judge. 

Action  by  Mrs.  T.  F.  Castello  against  the 
Citizens*  State  Bank  of  Manawa.  Judgment 
for  plalntiir,  and  defendant  appeals.  Al- 
flrmed. 


There  were  cited  upon  the  part  of  the  ap- 
pellant: BIckley  v.  Commercial  Bank,  39  S. 
C.  281, 17  S.  E.  977,  39  Am.  St  Bep.  721 ;  Id., 
43  S.  C.  528,  21  S.  B.  886;  Jumper  v.  Com- 
mercial Bank,  39  S.  C.  296,  17  S.  E.  980;  Bost- 
wick  V.  M.  L.  I.  Co.,  116  Wis.  392,  89  N.  W. 
538,  92  N.  W.  246,  67  L.  R.  A.  705. 

There  were  cited  upon  the  part  of  the  re- 
spondent :  Helm  v.  First  Nat  Bank  of  Hum- 
bolt,  76  Neb.  831, 107  N.  W.  1019;  Coleman  v. 
First  Nat  Bank,  53  N.  Y.  388;  Zlegler  v. 
Bank,  93  Pa.  393;  Steckel  v.  First  Nat  Bank, 
93  Pa.  376,  39  Am.  Rep.  758,  and  other  cases. 

Llewellyn  Cole,  for  appellant  Byron  B. 
Park,  for  respondent 

TIMLIN,  J.  Upon  a  complaint  averring 
that  on  August  28,  1906,  the  plaintiff  deposit- 
ed with  defendant  bank  $1,527.04  under  a  con- 
tract made  with  said  bank  that  if  the  said 
money  should  remain  on  deposit  for  a  period 
of  six  months  from  said  date,  said  bank  would 
pay  to  the  plaintiff  said  sum  with  interest 
thereon  at  the  rate  of  3  per  cent  per  annum, 
or,  if  not  left  six  months  so  as  to  draw  said 
rate  of  Interest  then  to  be  paid  to  the  plain- 
tiff at  any  time  prior  to  the  expiration  of 
said  six  months  on  her  demand,  and  that  de- 
mand was  made  and  payment  refused,  the 
plaintiff  recovered  of  the  defendant  bank  the 
said  sum  with  Interest  from  the  date  of  de- 
mand. Defendant  appeals,  alleging  error,  in 
that  there  was  a  material  variance  between 
the  nllegalloQS  of  the  complaint  and  the 
proofs,  and  error  in  overruling  defendant's 
motion  for  direction  of  a  verdict  in  its  favor. 

The  evidence  of  the  respondent  tended  to 
show  that  her  husband,  having  this  money 
In  the  hands  of  defendant's  cashier  deposited 
In  the  account  of  the  latter  In  the  defendant 
bank  and  presently  payable,  desired  to  give 
the  money  to  the  respondent,  and  made  this 
known  to  the  cashier,  the  respondent,  and 
others  present  He  told  the  cashier  to  give 
the  respondent  a  certificate  of  deposit,  and 
advised  her  to  get  a  certificate  of  deposit 
The  cashier  then  Informed 'her  that,  if  she 
left  the  money  in  the  banlc  for  six  months, 
she  would  get  3  per  cent  Interest,  and,  if  she 
took  It  out  before  that  time,  she  would  not 
get  any  Interest,  and  at  the  same  time  wrote 
out  his  personal  check  on  the  defendant  bank 
and  handed  It  to  the  respondent,  who  looked 
at  It  supposing  it  to  be  a  certificate  of  de- 
posit, and  took  and  kept  possession  of  it  with- 
out demand .  of  payment  until  January  19, 
1907,  and  without  actual  knowledge  of  its 
true  legal  character.  Respondent  was  at  the 
time  a  married  woman  31  years  of  age,  had 
lived  on  a  farm  all  her  life  except  the  two 
years  preceding  the  transaction  in  question, 
during  which  time  she  lived  in  the  village 
with  her  husband,  who  kept  a  livery  stable. 
She  had  no  separate  estate,  and  had  never 
been  In  any  line  of  business.  There  was 
nothing  to  sujjgest  a  loan  of  money  from  re- 


•Por  other  ease*  see  same  topic  and  lectlon  NUMBER  In  Dec.  ft  Am.  Pigs.  1907  to  date,  A  Reporter  Indexes 
122  N.W.  —49 


Digitized  by 


Google 


770 


122  NORTHWESTERN  REPORTER. 


(Wla. 


spondent  to  the  cashier  personally  unless  It 
be  the  check  above  mentioned.  The  cashier 
was  the  principal  executive  officer  of  the  de- 
fendant bank,  and  had  full  charge  of  all  Its 
business. 

There  was  upon  the  foregoing  facts  at 
least  a  question  for  the  Jury  whether  or  not 
the  cashier  understood  that  the  respondent 
and  those  speaking  for  her  were  proposing  a 
contract  of  deposit  between  respondent  and 
the  bank  to  be  made  through  the  cashier  In 
his  official  capacity,  and  whether  or  not  the 
cashier  did  In  this  capacity  assent  to  the 
same  or  designedly  lead  the  respondent  to  be- 
lieve that  he  assented  to  the  same,  prior  to 
the  execution  of  the  check  In  question.  As 
to  the  resiK)ndent,  the  cashier  was  prime 
facie  representing  the  bank,  and  he  In  no  way 
prior  to  the  execution  of  the  check  brought 
the  fact  to  her  notice  or  knowledge  that  he 
was  acting  or  claiming  to  act  in  his  personal 
or  individual  capacity.  The  contractual  ef> 
feet  of  passing  out  the  check  under  the  cir- 
cumstances to  an  Inexperienced  woman  was 
at  least  a  matter  for  the  Jury.  Kaley  v.  Van 
Ostrand.  184  Wis.  443,  114  N.  W.  817.  If 
the  cashier  Intended  that  the  plaintiff  should 
luiderstand  that  she  was  making  a  con- 
tract with  the  bank  and  the  plaintlfT  did  bo 
understand,  that  la  sufficient ;  there  being  an 
obvious  consideration  for  such  a  contract. 
The  cases  cited  by  the  respondent  and  above 
noted  amply  sustain  the  authority  of  the  jury 
to  find  a  contract  of  deposit  between  the  re- 
spondent and  the  bank  upon  this  evidence. 
Helm  V.  First  Nat  Bank  of  Humbolt,  76  Neb. 
831,  107  N.  W.  1019,  and  cases. 

The  appellant  next  contends  that  by  ac- 
cepting the  personal  check  of  the  cashier  on 
Aughst  28,  1906,  then  failing  to  examine  it 
carefully  or  to  read  It,  and  thereafter  holding 
It  until  January  19,  1907,  without  examina- 
tion of  the  check  or  objection,  brought  the 
case  within  the  rule  Of  Bostwick  v.  Insurance 
Co.,  116  Wis.  892,  89  N.  W.  638,  92  N.  W.  246, 
67  L.  R.  A.  705,  and  that  the  trial  court, 
should  have  directed  a  verdict  for  defendant 
There  was  no  request  upon  the  part  of  the 
appellant  to  have  the  question  of  waiver  or 
estoppel  submitted  to  the  Jury,  but  It  is  claim- 
ed that  by  reason  of  the  facts  aforesaid, 
coupled  with  the  fact  that  the  respondent  ad- 
mitted that  had  she  carefully  examined  the 
check,  she  would  have  known  the  difference 
between  that  and  a  certificate  of  deposit,  and 
the  further  fact  that  had  she  presented  the 
check  for  payment  at  any  time  within  60 
days  after  Us  receipt  by  her  it  would  have 
been  paid  by  the  cashier,  a  verdict  should 
hare  been  directed  for  the  appellant  The 
check  was  headed'with  the  name  of  the  bank 
followed  by  these  words:  "Pay  to  the  order 
of  Mrs.  Thomas  F.  Castello  $1,527.04  fifteen 
hundred  twenty  seven  and  four  one-hur.- 
dredths  Dollars.  G.  B.  Soli."  The  ordinary 
form  of  a  certificate  of  deposit  following  the 
same  heading  would  have  been:  "This  certi- 
fies that  Mrs.  Thomas  F.  Castello  has  deposit- 


ed In  tills  bank  $1,527.04  (repeated)  payable 
to  her  order  upon  the  return  of  this  certifi- 
cate properly  endorsed.  O.  E.  Soli,  Cashier." 
This  would  probably  be  followed  by  a  mem- 
orandum printed  or  stamped  thereon  relating 
to  the  Interest  terms.  The  difference  is  very 
plain  to  a  lawyer,  and  the  difference  is  rath- 
er in  substance  than  in  appearance  or  form, 
and  to  an  Inexperienced  person  the  difference 
is  not  so  striking  as  to  arouse  attention, 
even  though  such  person  might,  upon  care- 
fully reading  It,  have  observed  and  appre- 
ciated the  difference.  We  must  take  up  this 
question  upon  the  assumption  that  prior  to 
the  delivery  by  the  cashier  of  his  personal 
check  to  the  respondent  there  was  an  oral 
contract  of  deposit  made  and  concluded  be- 
tween the  respondent  and  the  bank  as  found 
by  the  Jury.  Its  terms  were  all  agreed  upon, 
and  it  remained  for  the  cashier  to  reduce 
them  to  writing  in  the  form  of  a  certificate 
of  deposit  Bostwick  v.  Insurance  Co.,  116 
Wis.  892,  89  N.  W.  638,  92  N.  W.  246,  67 
L.  R.  A.  705,  much  relied  upon  by  appellant, 
is  not  In  point  That  was  an  action  at  law  to 
rescind  a  contract  whereby  the  Insurance 
company  undertook  to  deliver  a  certain  kind 
of  policy  or  contract  The  transaction  sought 
to  be  rescinded  was,  in  effect,  a  sale  of  sev- 
eral policies  of  life  Insurance  to  Bostwick 
and  others.  The  latter  received  and  retain- 
ed for  a  long  time  the  thing  purchased  with- 
out carefully  examining  it  for  defects  patent 
on  Its  face,  and  during  this  time  had  the  op- 
tion. In  case  of  death,  to  hold  the  Insurance 
company  as  insurer.  There  was  no  existing 
insurance  contract  between  Bostwick  and  the 
company  at  the  time  the  company  sent  in  the 
proposed  policy,  but  the  policy  was  forwarded 
to  Bostwick  in  execution  of  a  contract  for 
the  same  and  under  a  claim  that  It  complied 
with  the  prior  executory  agreement 

In  the  case  at  bar  there  was  first  a  valid 
oral  contract  between  the  bank  acting  through 
its  cashier  and  the  respondent  for  which  the 
cashier  without  the  knowledge  or  consent  of 
the  respondent  substituted  a  writing  in  a 
form  and  to  a  i)er8on  entirely  unauthorized. 
The  cashier's  check  thus  never  became  a  con- 
tract at  all  because  not  assented  to,  nor  even 
a  proposal  to  contract  because  not  brought  to 
the  attention  of  the  other  party.  The  prior 
oral  contract  could  only  be  revoked  by  mutual 
consent  or  discharged  by  release,  or  Its  en- 
forcement prevented  by  estoppel.  There  was 
neither  revocation,  release,  nor  estoppel  in 
the  case  at  bar  by  mere  retention  of  this  check 
without  knowledge  of  its  contents  on  the 
part  of  respondent  and  under  the  mistaken 
impression  that  it  was  given  pursuant  to  and 
truly  represented  the  anterior  oral  contract 
of  deposit  True,  the  acceptance  and  reten- 
tion of  the  check  was  evidence  going  to  show 
that  the  contract  of  deposit  was  made  with 
the  cashier  persoually  and  not  with  the  bank, 
while  the  sex  and  inexperience  of  the  re- 
spondent and  her  apparent  reliance  upon  the 
bank,  and  the  fact  that  she  did  not  read  or 


Digitized  by  VjOOQ  l€ 


wis.) 


DRALLE  V.  TOWN  OP  REEDSBURQ. 


771 


examine  the  check  or  know  its  contents,  were 
facts  tending  to  the  contrary. 

Waiver  must  be  with  knowledge  or  with 
reasonable  means  of  knowledge  of  the  facts 
and  with  Intent  to  forego  some  right,  al- 
though the  knowledge  may  be  either  actual 
or  constructlye  and  the  Intent  expressed  or 
implied.  Pabst  Brg.  Co.  t.  Mflwankee,  126 
Wis.  110,  105  N.  W.  563 ;  McNaughton  t.  In- 
surance Ca  (decided  herewith)  122  N.  W.  704. 
The  probatlTe  effect  of  her  retention  of  the 
check  under  such  circumstances  is  not  so  ab- 
solute as  to  authorize  the  direction  of  a  ver- 
dict for  the  defendant 

The  judgment  of  the  circuit  court  is  af- 
firmed. 

WINSLOW,  C.  J.,  took  no  part 


DRALIiH  T.  TOWN  OP  REEDSBURO. 
(Supreme  Ooart  of  Wisconsin.    Oct  5,  1909.) 

1.  HioHWATS  (S  208*)— ToBTS— Actions— No- 

TICK  OP  ClJk.nf  of  IwjTTBT— CONSTBDCTION. 

In  determinine  what  evidence  of  particular 
injuries  is  admissible  in  an  action  against  a 
town  for  personal  injuries  caused  by  a  defect- 
ive road,  the  complaint,  notice  of  injury,  and 
claim  for  damages  filed  before  the  town  board 
for  audit,  »B  required  by  law,  should  be  con- 
strued toeether  and  tested  by  the  same  roles  as. 
the  sufficiency  of  pleadings. 

[Ed.   Note.— For  other  cases,  see  Highways, 
Cent  Dig.  S  524;    Dec.  Dig.  {  20&*] 

2.  Pleading  (|  427*)— Actions— Adiossibil- 
rrr  of  Evidenck. 

The  complaint  In  an  action  for  injuries 
from  a  defective  highway  alleged  that  plaintiff 
received  permanent  injuries,  was  rendered  sic);, 
sore,  braised,  maimed,  and  her  life  endangered, 
and  that  she  had  suffered,  and  still  suffered, 
severe  pains.  The  notice  of  injury  served  on  the 
town,  which  was  attached  to  and 'referred  to  in 
the  complaint  stated  that  plaintiff  was  thrown 
out  of  the  wagon  with  great  force  npon  the 
ground,  causing  severe  bruises  to  her  legs  and 
shonlders,  and  inflicting  severe  internal  injuries, 
and  the  claim  for  damages  filed  before  the  town 
board,  also  attached  to  and  referred  to  in  the 
complaint  stated  tliat  plaintiff  claimed  damages 
for  injuries  mental  and  physical,  loss  of  earn- 
ing capacity,  past  and  fntnre,  loss  of  time,  and 
medical  expenses.  Held,  that  while  the  com- 
plaint was  doubtless  subject  to  a  motion  to 
make  more  definite  as  to  the  injuries  suffered, 
or  for  a  bill  of  particulars,  having  waived  these, 
defendant  could  not  by  objection  at  the  trial  ex- 
clude evidence  as  inadmissible  under  the  com- 
plaint of  injuries  to  her  side,  ribs,  and  back 
and  of  a  wasting  of  the  muscles  of  the  back, 
causing  cnrvature  of  the  spine. 

lEd.  Note.— For  other  cases,  see  Pleading,  Dec. 
Dfg.  {  427.*] 

8.   BVIDENCB    (I    647*)-iEXA»nNATI0N    OF    Bx- 
PKBT. 

In  an  action  against  a  town  foY  personal 
injuries  caused  by  a  defective  highway,  a  ques- 
tion to  an  expert  as  to  how  tli-  injuries  affected 
plaintiff  was  proper  where  tLe  word  "injury" 
used  referred  to  the  braise  upon  plaintiff,  and 


not  to  any  invasion  of  her  legal  rights  by  the 
accident 

[Sid.  Note.— For  other  cases,  see  Evidence, 
Dec.  Dig.  {  647.*] 

4.  EviDENCK  (I  553*)  —  Opinion  Etidencb  — 
BxPEBT  Opinion  —  Htpothkticai,  Ques- 
tions—Facts   INCI.UDED. 

In  a  personal  injury  action,  it  was  unneces- 
sary that  a  hypothetical  question  whether  the 
injnry  received  was  a  sufficient  producing  cause 
of  the  condition  discovered  shoald  indnde  among 
existing  conditions  which  would  tend  to  affect 
her  physical  condition  the  fact  that  plaintiff 
had  given  birth  to  seven  children,  all  ol  whom 
died  In  infancy. 

[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent  Dig.  {{  2369-2374;  Dec  Dig.  f  553.*] 

6.  Afpeai,  and  Ebbob  ((  231*)— Objections 
Below  —  Specific  Objection— Nbcebsitt— 
ExpEBT  Opinion. 

An  objection  to  a  hypothetical  question  that 
it  did  not  include  all  the  elements  of  fact  tes- 
tified to  will  be  considered  on  appeal  only  in 
so  far  as  it  specifies  the  facta  in  evidence  omit- 
ted from  the  question. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  (  231;*  Trial,  Cent  Dig.  S 
216.1 

6.  Appeal  and  Ebbob  (g  1066*)— Habuless 
Ebbob— Exclusion  of  Evidence— Opinion 

EtVIDENCE. 

In  an  action  against  a  town  for  hijaries 
by  being  thrown  from  a  wagon  by  reason  of 
running  over  a  rock  in  the  traveled  highway, 
where  evidence  was  admitted  that  there  was  a 
space  12  feet  wide  to  the  right  of  and  slightly 
higher  than  the  traveled  track,  It  was  not  prej- 
udicial error  to  exclude  evidence  whether  such 
space  could  be  used  for  driving  outside  the  trav- 
eled track,  and  whether  it  was  possible  to  drive 
over  this  strip  at  the  place  plaintiff  was  injured, 
as  the  jury  would  not  be  aided  much  by  such 
opinion,  even  if  admissible,  where  the  condition 
and  measurements  of  the  traveled  road  and  the 
opportunities  to  turn  out  of  it  were  in  evidence, 
and  such  evidence  would  be  wholly  immaterial 
unless  conpled  with  evidence  that  plaintiff  bad 
such  knowledge  of  the  defect  in  the  traveled  road 
as  would  require  one  exercising  ordinary  care 
to  leave  It  and  take  the  outside  strip,  and  had 
an  opportunity  to  do  so. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {{  4187-4193;  Dec  Dig.  t 
1056.*] 

7.  Witnesses  (§  269*)— Examination— Cboss- 
ExAuiNATioN  —  Scope  —  Discretion    of 

COUBT. 

Where  it  could  be  fairly  inferred  from  the 
questions  asked  on  cross-examination  that  the 
examiner  intended  to  extend  the  investigation 
beyond  the  scope  of  the  direct  examination,  there 
was  no  abuse  of  discretion  in  excluding  such 
questions,  even  though  the  ruling  somewhat 
strictly  limited  the  cross-examination. 

[Ed.  Note.— For  other  cases,  see  Witnesses, 
Cent  Dig.  gg  949-654 ;   Dec.  Dig.  g  269.*] 

8.  Highways  (g  214*)  —  Tobts  —  Defectivi 
Roads  —  Actions  —  Instbuotions  —  Ap- 

PLICABILITT  to  EyiDBNCE. 

Plaintiff  sued  a  town  for  injuries  caused 
by  being  thrown  from  a  wagon  by  a  rock  in 
the  traveled  part  of  the  road  which  ran  over  a 
hill  and  was  about  nine  feet  wide  between  the 
embankments,  the  wagon  track  lieing  atMut  six 
feet  wide.  On  one  side  th«  ijank  ran  up  four, 
six.  or  eight  feet  high,  and  on  the  other  from 
sixteen  inches  to  two  feet  high,  when  it  dropped 


•For  otliar  eaaas  »—  tame  topic  and  laotlon  NDUBBR  In  Dec.  *  Am.  Digs.  1907  to  date,  *  Reporter  Indeze* 


Digitized  by  LjOOQ  l€ 


772 


122  NORTHWESTERN  REPOUTER. 


(Wis. 


abruptly.  A  rock  extended  d!a(;onaIly  across 
the  wagon  track,  bo  that  the  right  wheel  of  the 
wagon  would  strike  the  rock  first,  and  from  the 
bottom  of  the  rut  to  the  top  of  the  rock  was 
about  18  inches,  and  the  rock  projected  above 
the  ground  from  4  to  6  inches  on  both  the  right 
and  the  left  of  the  traveled  track.  Held,  that 
an  instruction  rn^s  properly  refused  as  inap- 
plicable, that  in  determining  whether  the  high- 
way was  defective  the  jury  should  consider  the 
amount  of  labor  and  money  which  must  be  ex- 
pended to  obviate  the  defect,  and  whether  such 
expenditure  would  be  so  excessive  as  to  render 
a  change  impracticable. 

[E!d.  Note. — For  other  cases,  see  Highways, 
Cent.  Dig.  §§  538-540;    Dec  Dig.  {  214.*] 

9.  TbIAI,  (§  2f50*)  —  INSTBUCTIONS  —  APPLICA- 

BiLiTT  TO  Case. 

Where  no  claim  was  made  for  damages  for 
loss  of  time  and  there  was  no  evidence  to  war 
rant  a  recovery  thereof,  an  instruction  denying 
the  right  to  recover  such  damages  was  properly 
refused. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  a  584-586;    Dec.  Dig.  1  250.*] 

10.  Costs  (J  254*)— On  AppeaI/— Bill  of  Ex- 
ceptions—Double Taxation. 

St.  1898,  }  2921,  providing  for  the  tax- 
ation of  costs  for  bills  of  exceptions,  does  not 
authorize  costs  for  a  bill  of  exceptions,  for  the 
cost  of  which  respondent  Las  already  been  fully 
reimbursed  by  appellant  on  a  former  appeal. 

[Ed.  Note.— For  other  cases,  see  Costs,  Dec. 
Dig. -5  254.*] 

11.  Appeal  and  Bbbor  (|  709*)— Questions 
Considered. 

Though  the  amonnt,  as  stated  in  the  print- 
ed case,  improperly  allowed  respondent  as  costs 
for  the  transcript  may  include  more  than  the 
costs  of  the  transcript,  where  respondent  did 
not  separate  the  items  of  which  the  amount 
was  composed,  the  Supreme  Court  will  not  count 
the  folios  to  determine  whether  such  amonnt  in- 
cludes more  than  the  costs  improperly  allowed. 
[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  2949 ;   Dec.  Dig.  i  700.*] 

Appeal  from  Circuit  Court,  Sauk  County; 
E.  Ray  Steveus,  Judge. 

Action  by  Llssette  Dralle  against  tbe  Town 
of  Reedsburg.  From  a  Judgment  for  plain- 
tiff, defendant  appealed-  Affirmed  as  modi- 
fied. 

See,  also,  130  Wis.  347,  llO  N.  W.  210. 

Daniel  H.  Grady,  for  appellant.  Groto- 
phorst,  Evans  &  Thomas,  for  respondent 


TIMLIN,  J.  In  this  action  for  damages 
resulting  from  a  defective  highway  tbe  re- 
spondent pleaded  that  she  "was  tbrown  vio- 
lently from  the  said  wagon  and  struck  on 
the  rocks  hereinbefore  referred  to,  receiving 
therefrom  severe,  and  as  she  is  Informed 
and  verily  believes  permanent.  Injuries; 
*  *  *  was  rendered  sick,  sore,  bruised, 
maimed,  and  her  life  endangered,  and  she 
has  suffered,  and  still  does  suffer,  severe 
and  excruciating  pains."  Attached  to  the 
complaint,  and  made  part  thereof.  Is  a  copy 
of  the  notice  served  by  respondent  upon  the 
town  and  required  by  section  1339,  St.  1898, 


In  which,  after  describing  tbe  place  where 
the  accident  happened  and  the  nature  of  the 
defect,  she  says :  "Thereby  throwing  me  out 
of  the  wagon  and  cafising  me  to  fall  with 
great  force  upon  the  ground,  causing  severe 
bruises  to  my  legs  and  shoulders,  and  in- 
flicting severe  internal  Injuries."  Also  made 
part  of  the  complaint  is  the  claim  for  dam- 
ages filed  before  the  town  board  of  audit 
as  required  by  law.  In  which  she  states  that 
she  makes  a  claim  for  Injuries  resulting 
from  a  defective  highway  concerning  which 
she  had  given  a  written  personal  notice. 
She  further  states :  "I  claim  damages  again.st 
the  town  of  Reedsburg  for  injuries,  suffer- 
ing, mentally  and  physically,  loss  of  earning 
capacity,  both  past  and  future,  loss  of  time, 
etc.,  expense  incurred  and  to  be  Incurred  for 
doctoring,"  etc. 

As  a  witness  on  the  trial  the  plaintiff  of- 
fered her  testimony  to  the  effect  that  by  the 
fail  in  question  she  sustained  Injuries  to  ber 
side,  ribs,  and  back,  to  which  defendant  ob- 
jected in  so  far  as  It  pertained  to  any.  inju- 
ries other  than  those  expressly  mentioned  In 
the  notice  of  injury  and  the  claim  filed  with 
the  town  board,  namely,  an  Injury  to  the 
leg  and  shoulder  and  Internal  injuries.  This 
objection  was  overruled.  She  offered  tbe 
testimony  of  her  attending  physician,  who 
testified  to  an  atrophy  or  wasting  of  the 
muscles  of  the  back,  causing  curvature  of 
tbe  spine,  and  having  a  tendency  to  Increase. 
A  similar  objection  to  tbe  admission  of  this 
testimony  was  made  and  overruled.  Mauch 
V.  Hartford,  112  Wis.  40,  87  N.  W.  816; 
Schmidt  v.  Pfell,  24  Wis.  452;  Delle  ▼.  C. 
&  N.  W.  Ry.  Co.,  51  Wis.  400.  8  N.  W.  205 ; 
and  a  number  of  cases  from  other  courts 
are  cited  to  show  error  In  this  ruling.  Sec- 
tion 1339  (St.  1898),  which  imposes  this  lia- 
bility upon  tbe  town,  requires  as  a  condi- 
tion precedent  the  service  upon  one  of  tbe 
town  supervisors  of  a  notice  stating  tbe 
place  where  such  damage  occurred,  and  de- 
scribing generally  the  insufficiency  or  want 
of  repair  which  occasioned  It,  and  that  sat- 
isfaction therefor  Is  claimed  of  sncb  town. 
Tbe  statute  does  not  require  that  this  notice 
specify  the  particulars  In  which  plaintiff 
was  Injured,  nor  that  any  description  of  ber 
injuries  be  given  therein.  From  the  excerpts 
quoted  It  will  be  seen  that  the  averments  of 
the  complaint  In  this  respect  were  very 
broad  and  general,  and,  alttaongb  tbe  com- 
plaint Incorporated  therein  this  notice  and 
further  stated  that  tbe  notice  set  forth  tbe 
injuries  of  tbe  respondent,  tbe  notice  Itself 
in  this  respect  Is  very  broad  and  general. 
It  speaks  of  bruises  to  her  legs  and  shoul- 
ders, and  severe  internal  Injuries,  and  the 
claim  filed  with  the  board  of  audit  refers 
to  this  notice  and  claims  damages  for  In- 
juries and  suffering,  both  mental  and  pbysi- 
I  cal.     These  three  papers  presented  together 


•Per  oiher  cases  see  same  toiiic  aud  sectloa  NUMBJ^R  in  Dec.  &  Am.  Digs.  1907  to  data,  A  Rqportar  ladexM 


Digitized  by  VjOOQ  l€ 


wis.) 


DRALLK  v.TOWN  OF  REEDSBUEG. 


773 


as  a  pleading  must  be  Construed  together, 
and  neither  can  be  tested  by  any  other  rule 
than  that  relative  to  the  sufficiency  of  plead- 
ings. TJnder  that  rule  there  was  sufficient 
In  the  complaint  notwithstanding  the  exhib- 
its attached  to  and  Incorporated  therein  to 
permit  the  admission  of  this  evidence.  Cur- 
ran  y.  Stange  Co.,  98  Wis.  598,  74  N.  W.  377; 
Delle  V.  C.  &  N.  W.  Ry.  Co.,  51  Wis.  400,  8 
N.  W.  2Go.  The  complaint  was  doubtless 
subject  to  a  motion  to  malvc  definite  and 
certain  In  this  particular  or  the  defendant 
could  have  demanded  a  bill  of  particulars, 
but,  having  waived  these  remedies,  could  not, 
by  objection  at  the  trial,  exclude  this  evi- 
dence which  Is  comprehended  within  the 
broad  generalities  of  the  complaint. 

One  of  the  expert  witnesses  was  aslced 
how  the  Injury  affected  respondent,  and  this 
question  was  allowed  to  be  answered  against 
objection  by  the  appellant  From  an  exam- 
ination of  the  testimony  preceding  the  ques- 
tion, we  are  Inclined  to  agree  with  counsel 
for  respondent  that  the  word  injury  was 
then  being  used  to  designate  the  contusion, 
bruise,  or  trauma  in  question,  and  not  the 
Invasion  of  legal  rights  which  might  have 
occurred  at  the  time  of  the  accident  So  con- 
struing this  word,  there  was  no  error  in  the 
niling.  The  objection  to  a  long  hypothetical 
question  on  the  ground  that  it  did  not  In- 
clude all  the  elements  of  facts  testified  to  ir. 
the  case  and  npon  other  grounds  not  neces- 
sary to  mention  was  followed  by  a  question 
from  the  court  to  counsel  malting  the  objec- 
tion, asking  counsel, what  facts  he  referred 
to  which  were  not  In  the  hypothetical  ques- 
tion. Counsel  referred  to  the  fact  of  the  ex- 
istence of  a  scrofulous  goitre  for  12  years, 
bat  the  question  expressly  assumed  that 
respondent  had  been  afflicted  with  goitre  for 
a  number  of  years,  and  that  It  had  increased 
some  from  the  time  of  the  Injury.  Counsel 
also  mentioned  the  fact  that  plaintiff  had 
given  birth  to  seven  children,  all  of  whom 
died  In  Infancy  or  shortly  thereafter.  This 
fact  was  not  necessary  to  be  Included.  Xhe 
objection  made  was  insufficient  to  raise  any 
other  question  not  already  considered.  And 
the  same  Is  true  of  the  objection  to  the  hy- 
pothetical question  propounded  to  Dr.  Ed- 
wards. Odegard  v.  North  Wis.  L.  Co.,  130 
W^is.  659,  677,  110  N.  W.  809;  Cornell  v. 
State,  104  Wis.  527,  80  N.  W.  745.  Evidence 
that  there  existed  a  space  to  the  right  of 
the  traveled  track  In  the  highway  In  question 
12  feet  in  width  and  a  little  higher  than  the 
traveled  track  was  admitted,  but  the  court 
excluded  evidence  of  a  witness  who  was 
asked  to  state  whether  this  was  such  a  piece 
of  highway  as  would  permit  its  use  for  the 
driving  of  a  vehicle  outside  and  to  the  right 
of  the  traveled  track,  also  whether  It  was 
possible  or  practicable  to  drive  over  this 
strip  of  12  feet  at  the  place  where  plaintiff 
was  injured.  We  do  not  think  that  any  prej- 
udicial error  con  be  predicated  upon  this  rul- 
ing.   If  the  Jury  had  before  it  the  condition 


and  measurements  of  the  traveled  track, 
and  the  opportunities  to  turn  out  and  avoid 
the  rock  in  question,  they  would  not  be  aid- 
ed much  further  by  the  opinion  of  the  wit- 
ness upon  the  question  asked,  even  if  we 
concede  that  such  opinions  were  competent. 
The  item  of  evidence  Is  quite  remote,  and, 
unless  coupled  with  proof  that  the  plaintiff 
had  opportunity  to  turn  out  of  the  traveled 
track  and  such  knowledge  of  the  defects  in 
the  traveled  track  as  would  require  a  person 
in  the  exercise  of  ordinary  care  to  depart 
therefrom  and  travel  on  this  strip,  the  opin- 
ions of  a  witness  as  to  the  practicability  or 
feasibility  of  so  doing  would  be  quite  imma- 
terial. A  physician  called  by  the  respondent 
testified  that  he  examined  the  respondent 
shortly  after  the  Injury,  and  found  no  atro- 
phy of  the  muscles  of  the  back  or  curvature, 
of  the  spine.  The  court  limited  the  cross- 
examination  of  this  witness  rather  strictly, 
but  the  questions  asked  were  very  broad, 
and  were  no  doubt  understood  by  the  court 
to  attempt  to  extend  the  cross-examination 
to  other  matters  not  covered  by  the  direct 
examination.  Whether  this  was  Intended  or 
not  the  court  evidently  so  understood,  and 
this  Inference  could  fairly  be  made  from 
the  questions  asked.  There  was  no  abuse  of 
discretion  in  this  ruling. 

Error  is  assigned  because  the  court  refus- 
ed the  request  of  the  defendant  that  the  Jury 
be  instructed  as  follows:  "Xou  are  further 
instructed  that  in  determining  whether  or 
not  the  highway  at  the  place  in  question  was 
defective,  you  are  to  take  Into  consideration 
the  amoimt  of  labor  and  money  which  must 
necessarily  be  expended  to  obviate  the  con- 
dition wherein  the  alleged  defect  consists, 
and  whether  or  not  the  same  would  be  so 
excessive  as  to  render  Impossible  or  Imprac- 
ticable a  change  of  such  condition."  Wheth- 
er or  not  this  was  correct  in  law  we  need  not 
determine,  because  there  was  no  evidence  In 
the  case  to  which  such  instruction  was  ap- 
plicable. And  It  Is  .In  Itself  Inconsistent  with 
the  theory  of  the  defense,  that  there  was  a 
strip  twelve  feet  in  width  to  the  right  of  the 
traveled  track  upon  which  the  plaintiff  might 
safely  have  driven.  The  road  In  question  Is 
over  a  hill  called  Buckley's  Hill,  and  Is  about 
nine  feet  wide  between  the  raised  sides. 
The  wagon  track  Is  about  six  feet  wide.  On 
the  right  hand  the  bank  ran  up  four,  six,  or 
eight  feet  high,  and  on  the  left  hand  there 
was  a  bank  sixteen  inches  to  two  feet  high 
extending  up  and  then  an  abrupt  drop.  A 
rock  extended  across  the  wagon  track  diagon- 
ally. The  right  wheel  of  the  wagon  would 
strike  the  rock  first  and  from  the  bottom  of 
the  rut  to  the  top  of  the  rock  was  about  eight 
to  twelve  Inches.  To  the  right  of  the  travel- 
ed track  the  rock  projected  above  the  sand 
from  four  to  six  Inches  and  about  as  much 
on  the  left.  This  shows  no  situation  calling 
for  such  an  Instruction. 

The  court  also  refused  the  request  of  the 
defendant  that  the  Jury  be  Instructed  that 
plaintiff  was  not  entitled  to  recover  for  loss 


Digitized  by  LjOOQ  l€ 


774 


122  NORTHWESTERN  REPORTER. 


(Wla. 


of  time.  There  waa  no  evidence  offered  on 
this  subject,  and,  so  far  as  the  record  shows, 
no  claim  made  that  she  was  entitled  to  re- 
cover for  any  such  Item  of  damages.  The 
court  did  Instruct  the  jury  with  reference 
to  the  fourth  question  of  the  special  verdict, 
the  form  of  which  was :  "What  sum  of  mon- 
ey will  compensate  the  plaintiff  for  the  In- 
jury she  has  received?"  In  such  Instructions 
he  told  the  Jury  to  keep  in  mind  the  condi- 
tion of  the  plaintiff's  health  before  and  after 
the  Injury,  the  nature  and  extent  of  the  in- 
juries as  disclosed  by  the  evidence,  and  to 
include  compensation  for  the  actual  injury  to 
the  plaintiff's  person,  and  for  the  physical 
and  mental  pain  and-  suffering  undergone  by 
reason  of  the  injury,  and  not  to  allow  any 
sum  for  expenses  Incurred  in  the  care  or 
medical  attention  of  the  plaintiff,  and  also 
with  reference  to  future  impairment  of  health. 

The  law  as  It  now  exists  with  reference 
to  the  liability  of  towns— that  is  section  1339 
(St  1S98),  as  amended  by  chapter  305,  p.  535, 
Laws  1899 — cuts  off  all  right  of  action  on  the 
part  of  the  husband  on  account  of  injuries 
received  by  the  wife,  and  renders  the  reason 
given  for  the  exclusion  of  such  damages  in 
Badlng  v.  M.  E.  R.  &  I*  Co.,  105  Wis.  480,  81 
N.  W.  861,  no  longer  appropriate.  Cutting 
off  a  husband's  right  to  recover  such  dam- 
ages does  not  necessarily  confer  upon  a  wife 
the  right  to  recover;  consequently  this  ques- 
tion is  left  for  future  consideration,  and, 
there  being  no  claim  for  damages  before  the 
Jury  and  no  evidence  to  warrant  such  re- 
covery, the  refusal  of  the  requested  instruc- 
tion was  not  error.  We  cannot  say  upon  the 
evidence  that  the  damages  awarded  by  the 
Jury  are  excessive  within  the  rules  govern- 
ing the  consideration  of  such  questions. 

In  the  taxation  of  costs  the  respondent  was 
permitted  to  tax  an  item  for  drafting  the  bill 
of  exceptions  used  by  her  upon  the  first  ap- 
peal In  this  case  reported  at  130  Wis.  347, 
110  N.  W.  210.  On  the  reversal  of  that 
Judgment,  the  respondent  presented  as  an 
item  of  disbursements  th^  whole  bill  of  the 
court  reporter  for  the  original  and  copies  of 
the  transcript  which  constituted  the  major 
part  of  the  bill  of  exceptions,  and  this  ex- 
pense was  paid  by  the  appellant.  The  clerk 
allowed  the  respondent  to  tax  for  drawing 
that  part  of  the  bill  of  exceptions  so  made 
up.  Proper  exception  was  taken  to  the  rul- 
ing of  the  clerk,  the  matter  brought  for  re- 
view before  the  circuit  court  who  by  order 
allowed  this  item  of  costs  to  the  respondent 
and  the  evidence,  and  exceptions  on  the  tax- 
ation of  costs  are  preserved  in  the  bill  of  ex- 
ceptions. The  statute  (section  2921)  provides 
for  the  taxation  of  costs  for  drawing  bills 
of  exceptions,  but  this  cannot  be  held  to  cover 
a  bill  of  exceptions  or  that  part  thereof  com- 
posed of  a  transcript  of  the  reporter's  notes 
drafted  by  the  reporter  for  the  costs  of  which 
the  respondent  had  theretofore  been  fully  re- 
imbursed by  the  appellant    The  amount  of 


this  Item,  as  stated  in  the  printed  case,  is 
$146.  This  may  include  something  more 
than  the  reporter's  transcript  but  counsel 
for  respondent  has  furnished  us  no  separa- 
tion, or  basis  for  separation  except  by  count- 
ing folios,  which  we  decline  to  do. 

For  this  error  in  taxation  of  costs  the  Judg- 
ment of  the  circuit  court  must  be  modified  by 
striking  therefrom  the  item  of  $146  alxtve 
mentioned,  and,  as  so  modified,  afiSrmed,  the 
costs  of  this  court  to  be  taxed  against  tlia 
respondent    It  Is  so  ordered. 

WINSLOW,  O.  J.,  took  no  part 


In  re  HYDE'S  WILUt 

DONOVAN  V.  HTDE. 

(Supreme  Court  of  Wisconsin.     Oct  5,  1900. 

Modification  of  Judgment  Dec.  7,  1909.) 

1.  Affeai.  and  Ebbob  (8   1054*)— Habicless 
Ebrob— ADVissiBiT.mr  of  Evidence. 

Where  inadmissible  evidence  was  received 
merely  de  bene  esse  in  a  will  contest,  and  the 
record  does  not  show  any  part  of  the  evidence 
was  considered  by  the  court,  no  reversible  error 
appears. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Gent  Dig.  Si  4185-4186;  Dec.  Dig.  f 
1054.*] 

2.  Appeai,  and  Ebbob  (}  984*)  —  DiscKKrioir 
OF  Tbial  Coubt— Costs— Wili.  Contest. 

The  trial  court  being  in  a  better  position 
than  the  Snpreme  Court  to  weigh  considera- 
tions in  awarding  costs  in  a  will  contest  Its 
award  against  contestant  will  not  lie  disturbed 
on  appeal  where  no  abuse  of  discretion  is  shown. 
['Ei.  Note. — For  other  cases,  see  Appeal  and 
Rnor,  Cent  Dig.  tf  3881-3888;  Dec  Dig.  f 
984.*] 

Appeal  from  Circuit  Coart,  Juneau  Gountjr; 
J.  J.  Fruit  Judge. 

In  the  matter  of  the  will  of  Thomas  J. 
Hyde.  From  a  Judgment  affirming  the  order 
admitting  the  will  to  probate,  Thomas  F. 
Hyde  appeals.    Affirmed. 

Appeal  by  (me  Thomas  F.  Hyde  from  Judg- 
ment of  the  circuit  court  affirming  order  of 
the  county  court  admitting  to  probate  a  cer- 
tain writing  as  the  will  of  Thomas  J.  Hyde, 
deceased.  According  to  the  evidence  of  the 
proponent  the  will  was  drawn  for  Hyde  by 
a  layman  while  the  latter  was  in  his  last 
sickness,  but  able  to  sit  up  in  bed.  It  was 
drawn  in  lead  pencil,  executed  by  testator 
by  his  mark,  and  then  taken  by  the  scrivener 
through  an  open  door  to  a  table  In  an  adjoin- 
ing room  where  the  name  of  the  testator  was 
written  by  the  scrivener  and  the  names  of 
the  attesting  witnesses  were  affixed;  it  be- 
ing announced  abd  fully  understood  that  the 
paper  was  so  executed  as  the  will  of  the  de- 
ceased, and  that  be  desired  the  witnesses 
to  complete  its  formal  execution.  The  prin- 
cipal controversy  on  the  apiieal  la  whether 
the  evidence  permits  the  conclusion  that  the 
table  on  which  the  witnesses  wrote  their 
names  was  so  situated  as  to  be  within  the  ob- 
servation of  the  testator.  The  court  found 
that  such  attestation  was  In  the  presence  of 
tAe  testator. 


•B<or  other  cases  see  same  topic  and  section  NUMBER  in  Dec.  &  Am.  Diss.  19OT  to  datat  *  Beportar  Indexes 

t  Rehearing  denied. 


Digitized  by  VjOOQ  IC 


wis.) 


SHEPARD  DRAINAGE  DIST.  v.  EIMBRMAN. 


775 


Veeder  &  Veeder,  for  proponent  Lenl- 
check,  Falrcblld  &  Boesel  (Daniel  H.  Orady, 
of  coonsel),  for  contestant 

DODGE,  J.  (after  stating  the  facts  as 
above).  The  principal  question  presented  is 
a  pure  issue  of  fact  on  which  the  circuit 
court  has  reached  a  conclusion.  We  do  not 
feel  justified  In  saying  more  about  the  evi- 
dence than  that  we  fall  to  find  any  clear 
preponderance  against  such  conclusion. 

Error  Is  assigned,  and  some  argument  in- 
dulged, upon  admission  of  testimony  of  the 
scrivener  to  personal  transactions  with  the 
deceased,  objectionable  by  reason  of  assert- 
ed Interest  under  the  will;  but  the  record 
discloses  that  such  testimony  was  received 
merely  de  bene  esse,  and  does  not  show  that 
any  part  thereof  relating  to  personal  trans- 
actions was  considered  by  the  court  Hence 
no  error  a£Brmatlvely  appears  in  that  respect. 

Another  assignment  of  error  Is  In  the 
award  of  costs  against  the  contestant  in 
circuit  court  The  circuit  court  was  in  better 
position  than  we  can  be  to  weigh  any  con- 
siderations for  or  against  such  award  and  to 
exercise  sound  discretion  thereon.  We  can- 
not find  anything  in  the  record  to  persuade 
tu  that  that  discretion  has  been  abused. 

Judgment  affirmed. 

WINSLOW,  0.  J.,  took  no  part 

Modification  of  Judgment 

PER  CURIAM.  Upon  motion  of  appellant 
ordered  that  the  judgment  and  mandate  be 
modified,  so  as  to  direct  that  the  taxable  costs 
of  both  parties  in  this  court  be  paid  out  of  the 
estate,  but  that  no  costs  be  taxed  for  printing 
the 


SHBPARD  DRAINAGE  DIST.  et  al.  t.  EIM 

BRMAN. 
(Supreme  Coort  of  Wisconsin.     Oct  6,  1909.) 

1.  Navioablb  Watebs  (S  1*)  —  Evidehcb — 
sufticiency. 

In  proceedings  to  create  a  drainage  district, 
which  Involved  the  destruction  of  a  pond  creat- 
ed by  a  dam,  evidence  held  to  sustain  a  finding 
that  the  pond  was  navigable  in  fact 

(Ed.   Note.— For   other   cases,   see   Navigable 
Waters,  Cent  Dig.  SI  5-16;   Dec  Dig.  i  1.*] 

2.  Navioabu)  Watebs  ({  16*)— Riqrts  or 
Public. 

It  a  pond  which  was  a  mile  and  a  half 
long  and  varied  in  width  from  a  few  feet,  and 
in  depth  from  two  or  three  feet  at  one  end  to 
two  or  three  hundred  feet  in  width,  and  eight 
feet  in  depth  at  the  other  end,  was  navigable 
in  fact  the  rights  of  the  public  therein  were 
as  mn<di  entitlM  to  protection  as  If  it  was  mnch 
larger. 

[Ed.    Note.— For  other  cnses,   see   Navigable 
Waters,  Cent  Dig.  S  43;    Dec.  Dig.  {  16.»J 

3.  Eminent  Douain  (8  45*)— Pbopebtt  Which 
Mat  Be  Taken  —  Navioable  Watebs  — 
Dbainaoe  Pboceedings. 

Laws  1906,  p.  687,  c  419,  as  amended  by 
Laws  1907,  p.  1240,  c.  646,  permitting  riparian 
rights,  rights  of  flowage  and  water  powers,  to 
be  taken  in  drainage  proceedings,  did  not  au- 
thorize drainage  commiasionem  to  appropriate  a 


pond  originally  created  by  a  dam,  but  which  in 
time  became  a  natural  condition  and  was  navi- 
gable in  fact 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  {  95 ;   Dec  Dig.  i  45.*] 

Appeal  from  Circuit  Ck>urt  Dane  County; 
E.  Kay  Stevens,  Judge. 

Drainage  proceedings  by  the  Shepard 
Drainage  District  and  others  against  Phillip 
Elmerman.  From  an  order  refusing  to  con- 
firm the  preliminary  report  of  drainage  com- 
missioners In  favor  of  creating  a  district, 
the  commissioners  appeal.    Affirmed. 

The  commissioners  reported  in  favor  of 
the  creation  of  a  drainage  district  in  the 
towns  of  York  and  Medina  in  Dane  county. 
Wis.  The  drainage  system  r^ommended  by 
the  commissioners  contemplated  the  removal 
of  a  dam  known  as  Marshall  dam,  and  the 
destruction  of  a  pond,  created  thereby,  known 
as  Marshall  pond.  The  circuit  court  held 
that  the  pond  created  by  the  flowage  of  the 
dam  constituted  navigable  waters  of  the 
state,  and  that  such  waters  could  not  be  de- 
stroyed under  the  drainage  acts.  The  com- 
mlssibners  appeal  from  such  order. 

Tenneys,  Hall'  &  Sanderson  (Whitehead  & 
Matheson  and  Kearney  Thompson  &  Myers, 
of  counsel),  for  appellants.  Miner  &  Elver 
and  Elmore  T.  Elver,  for  respondent 

BARNES,  J.  (after  stating  the  facts  as 
above).  The  trial  doort  held  that  Waterloo 
creek  is  not  in  fact  navigable,  but  that  the 
pond  therein  created  by  the  flowage  from  the 
dam  sought  to  tie  condemned  is  navigable, 
and  that  its  navigability  could  not  be  de- 
stroyed under  the  powers  granted  or  rlgh.ts 
conferred  by  chapter  419,  p.  687,  Laws  19CK}, 
as  amended  by  chapter  646,  p.  1240,  Laws 
1907.  The  evidence  tended  to  show  that  the 
milldam  in  question  was  built  nearly  60 
years  ago,  and  has  been  maintained  ever 
since;  that  the  pond  was  about  a  mile  and 
one-half  long,  and  varied  in  width  from  a 
few  feet  at  the  upper  end  to  200  or  300  feet 
at  the  lower  end,  and  had  a  depth  of  8  feet 
at  the  dam,  which  gradually  lessened  until 
it  did  not  exceed  2  or  3  feet  at  its  upper  end; 
that  such  pond  covered  alwut  150  acres; 
that  it  was  navigated  by  rowboats;  that 
it  was  used  as  a  reserve  for  fire  protection 
for  the  village  of  Marshall;  that  it  furnished 
the  source  of  supply  ot  ice  for  said  village, 
and  the  neighborhood  adjacent  thereto;  that 
It  was  resorted  to  for  fishing,  and  that  farm- 
ers in  its  Immediate  vicinity  might  transport 
their  grists  to  the  gristmill  over  the  same 
if  they  saw  fit  (although  no  evidence  was 
offered  to  show  that  they  had  done  so,  or 
were  ever  likely  to  do  so);  and  that  it  was 
used  by  the  public  for  the  purposes  enumer- 
ated. 

Slight  as  Is  the  showing  of  navigability  in 
this  case,  still  we  think  it  is  sufficient  to 
sustain  the  finding  of  the  trial  court  that 
this  pond  Ir  in  fact  navigable,  and  is  water 


•For  othar  esM*  set  nm*  toplo  and  ••ctlon  NUUBBR  In  Dec.  &  Am.  Digs.  ItOT  to  data,  *  Raportar  IndcxM 


Digitized  by  VjOOQ  l€ 


776 


122  NORTHWESTERN  REPORTER. 


(Wis. 


In  which  the  public  has  acquired  rights  under 
the  repeated  decisions  of  this  court  Indeed, 
counsel  for  the  appellant  did  not  assert 
otherwise  on  the  oral  argument  The  fol- 
lowing cases,  among  others  which  might  be 
cited,  define  what  constitutes  the  test  of 
navigability  in  a  stream  or  body  of  inland 
waters:  Whlsler  v.  Wlllslnson,  22  Wis.  573; 
Sellers  v.  Union  Lumbering  Co.,  39  Wis.  525; 
Olson  V.  Merrill,  42  Wis.  203;  A.  C.  Conn  Co. 
V.  Lumber  Co.,  74  Wis.  652,  43  N.  W.  600; 
Falls  Mfg.  Co.  V.  Oconto  River  Improvement 
Co.,  87  Wis.  134,  58  N.  W.  257;  Willow 
River  Club  v.  Wade,  100  Wis.  86,  76  N.  W. 
273,  42  L.  R.  A.  305;  In  re  Horlcon  Drainage 
District,  136  W;8.  227,  116  N.  W.  12.  It  Is 
true  that  the  body  of  water  found  to  l)e 
navigable  In  this  case  Is  small,  but  If  it  U 
navigable  in  fact,  and  constitutes  a  public 
highway,  the  rights  of  the  public  therein 
are  as  sacred  and  as  much  entitled  to  protec- 
tion as  they  would  be  in  the  case  of  a  more 
pretentious  water  course. 

The  decision  of  the  circuit  court  holding 
that  the  mlllpond*ln  question  is  navigable 
being  warranted  by  the  facts  shown  In  evi- 
dence, it  seems  to  us  that  every  claim  and 
every  contention  made  by  appellants  is  set- 
tled adversely  to  them  by  the  decision  of  this 
court  In  Re  Horlcon  Drainage  District  supra. 
The  artificial  condition  originally  created  by 
the  dam  became  by  lapse'  of  time  a  natural 
condition.  In  re  Horlcon  Drainage  District, 
supra;  Diana  Shooting  Club  v.  Lamoreux, 
114  Wis.  44,  89  N.  W.  880,  91  Am.  St  Rep. 
898;  Village  of  Pewaukee  v.  Savoy,  103  Wis. 
271,  79  N.  W.  486,  50  L.  R.  A.  836,  74  Am. 
St  Rep.  859;  In  re  Dancy  Drainage  Dis- 
trict, 129  Wis.  129,  108  N.  W.  202;  Smith  v. 
Youmans,  96  Wis.  103,  70  N.  W.  1115,  37  I* 
R.  A.  285,  65  Am.  St  Rep.  SO;  Mendota  Club 
V.  Anderson,  101  Wis.  479,  78  N.  W.  185.  In 
the  Horlcon  Drainage  Case  the  court  does 
not  decide  that  the  Legislature  may  not  au- 
thorize the  destruction  of  bodies  of  water 
navigable  In  fact,  but  it  does  decide  that  the 
act  we  are  considering  did  not  authorize  any 
puch  destruction,  and  it  is  at  least  strongly 
intimated  in  some  of  the  decided  cases  that 
such  an  act  could  not  be  upheld.  In  re  Dan- 
cy Drainage  District,  supra;  Prlewe  v.  Wis- 
consin Land  &  Improvement  Co.,  93  Wis.  534, 
67  N.  W.  918,  33  L.  R.  A.  645.  It  follows  that 
the  order  of  the  circuit  court  was  correct 

Order  affirmed. 

WINSLOW,  O.  X,  took  no  part 


OLSON  V.   UNITED   STATES   SUGAR  CO. 

(Supreme  Court  of  Wisconsin.     Oct.  5,   1909.) 

Costs    (5    22*)  —  Statutobt    Pbovisions  — 
Amount  I{ecovebed. 

St.  ]8!)8,  §  2U18,  subd.  7,  provides  that 
in  an  action  on  a  contract,  when  a  justice  has 
jurisdiction,  where  the  amount  claimed  by  plain- 
tiff exceeds   $200,   plaintiff   shall  only   recover 


such  taxable  costs  as  the  circuit  court  in  its 

discretion  allows,  when  the  recover;  is  less 
than  $50.  An  act  of  1881,  enacted  while  sub- 
division 7  was  in  force,  amended  subdivision  6 
so  as  to  allow  costs  to  plaintiff  in  an  action  on 
contract  where  he  recovered  $100  or  more.  Suit- 
division  3  of  the  section  as  it  stood  at  tliat 
time  allowed  costs  to  plaintiff  in  actions  of 
which  a  justice's  court  had  no  jurisdiction; 
subdivision  6  allowed  costs  in  an  action  on  con- 
tract at  the  commencement  of  which  real  es- 
tate was  attached,  without  regard  to  the  amount 
recovered ;  and  subdivision  7  and  the  amend- 
ment to  subdivision  6  were  both  brought  into 
the  Statutes  of  1898.  Held,  that  the  amend- 
ment of  subdivision  6  did  not  affect  Bul>division 
7,  but  merely  added  anotlier  class  of  cases  in 
which'  costs  were  recoverable,  and  that  the  two 
subdivisions  overlap  did  not  justify  refusing 
costs  authorized  by  one  of  them,  so  that  in  an 
action  on  contract  for  $236  plaintiff  was  prop- 
erly allowed  costs  under  subdivision  7,  where 
the  amount  recovered  was  $93. 

fEd.  Note.— For  other  cases,  see  Costs,  Dec. 
Dig.  i  22.*] 

Appeal  from  Circuit  Court,  Dane  Coun- 
ty; B.  Ray  Stevens,  Judge. 

Action  by  Olaf  M.  Olson  against  the 
United  States  Sugar  Company.  From  the 
part  of  the  Judgment  awarding  plaintiff 
costs  upon  Judgment  for  bim,  defendant  ap- 
peals.   Affirmed. 

Action  on  contract  wherein  a  duly  veri- 
fied complaint  alleged  a  liability  of  $236. 
Judgment  was  recovered  for  only  $93.92 
damages.  Costs  were  taxed  in  favor  of 
plaintiff,  against  due  objection  and  excei>- 
tion  by  the  defendant,  and  included  In  the 
judgment  From  the  portion  of  the  judg- 
ment awarding  costs,  defendant  brings  this 
appeal. 

Ay  1  ward,  Davies  &  Olbrich,  for  appellant 
Murphy,  Kroncke  &  Sauthoff,  for  respond- 
ent 

DODGE,  J.  The  allowance  of  costs  to 
the  plaintiff  is  very  clearly  authorized  by 
the  words  of  section  2918,  subd.  7,  St  1898: 
"In  an  action  on  contract  when  a  Jnstice 
of  the  peace  has  Jurisdiction  wherein  the 
amount  claimed  by  the  plaintiff  in  his  com- 
plaint duly  verified  shall  exceed  the  suoi 
of  two  hundred  dollars,  but  In  such  cases 
the  plaintiff  shall  recover  only  such  taxable 
costs  as  the  court  in  its  discretion  shall  al- 
low, when  the  recovery  shall  be  less  than 
$50.00."  This,  appellant  concedes,  but  urges 
that  because  the  Legisiature  in  1881,  while 
said  subdivision  7  was  in  force,  enacted  an 
amendment  to  subdivision  6  of  said  section 
allowing  costs  to  the  plaintiff  "In  an  action 
on  contract  when  the  plaintiff  shall  recov- 
er $100.00  or  more,"  this  Is  a  qualification 
of  subdivision  7.  If  a  qualification  at  all, 
it  Is  a  complete  repeal;  for  It  covers  the 
whole  ground,  and  subdivision  7  serves  no 
purpose.  We  are  convinced,  however,  that 
no  such  legislative  purpose  existed.  The 
statute  as  it  existed  in  1881,  when  the  ad- 
dition to  suttdivision  6  was  made,  allowed 
costs  to  plaintiff  in  the  actions  in  which  a 


•For  ether  cases  se*  same  topic  and  section  NUMBER  in  Dec.  ft  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Hiciu) 


NELSON  v.  PITTSBUEQ  COAL  DOCKT  CO. 


777 


justice's  court  lias  no  jurisJdlction  (subOlvl- 
Blon  3);  In  an  action  od  contract  wherein 
real  estate  shall  be  attached  at  the  com- 
mencement thereof,  without  regard  to  the 
amount  recovered  (subdivision  6)  and  In  an 
action  believed  to  be  beyond  the  Jurisdic- 
tion of  the  Justice  of  the  peace,  but  on  trial 
found  to  fall  within  it  (subdivision  7).  Evi- 
dently the  Legislature  became  convinced 
that  another  class  of  cases  should  be  added 
in  this,  namely,  in  all  contract  cases  in 
which  1100  or  more  should  be  recovered. 
This  Is  the  clear  significance  of  the  words, 
and  such  we  think  to  have  been  the  legis- 
lative intention.  There  are  no  words,  by 
negation  or  otherwise,  in  the  amendment  to 
indicate  that  it  controls  or  restrains  any  of 
the  other  sections,  and  when  In  1898  the 
entire  revision  of  the  statutes  was  enacted 
the  class  provided  by  subdivision  7  and  the 
class  brought  into  subdivision  6  by  this 
amendment  were  both  preserved  in  the 
statute.  The  fact  that  the  two  subdivisions 
overlap  is  of  no  significance.  That  is  the 
characteristic  of  several  of  the  subdivisions 
in  section  2018,  and  it  is  no  good  ground  for 
refusing  costs  allowed  by  one  of  those  sub- 
divisions that  they  may  under  some  circum- 
stances be  allowed  by  the  words  of  another. 
Thus  subdivision  8  allows  costs  in  actions 
of  which  a  Justice  of  the  peace  has  no  Ju- 
risdiction. Subdivision  4  allows  costs  in 
libel  and  Blander  actions,  amongst  others. 
In  case  of  a  recovery  beyond  $50,  It  mat- 
ters not  to  which  of  these  subdivisions  the 
plaintiff's  right  to  costs  is  ascribed. 

Appellant  urges  upon  our  notice  two  cas- 
es, decided  since  the  amendment  of  1881,  In 
which,  as  he  says,  the  Supreme  Court  test- 
ed the  right  to  costs  by  the  new  words  of 
subdivision  6,  and  did  not  mention  sub- 
division 7.  But  an  examination  discloses 
that  neither  of  those  cases  was  within  the 
description  of  subdivision  7,  and  any  right 
to  costs  therein  must  have  l>een  measured 
by  subdivision  6.  Thus,  In  Field  v.  Elroy, 
99  Wis.  412,  75  N.  W.  68,  the  complaint 
claimed  $38.50  and  the  recovery  was  for 
$23.10,  so  that,  of  course,  it  could  not  fall 
within  the  description  of  subdivision  7. 
Again,  in  Montgomery  v.  Central  Ins.  Co., 
108  Wis.  146.  84  N.  W.  175,  the  recovery 
was  some  $400,  and  therefore  It  was  not  an 
action  on  contract  of  which  a  Justice  of  the 
peace  liad  Jurisdiction,  and  right  to  costs 
could  not  rest  upon  subdivision  7,  while  It 
might  rest  on  subdivision  6,  because  the  re- 
covery was  more  than  $100,  or  might  have 
rested  on  subdivision  3,  because  the  action 
was  not  (Within  the  Jurisdiction  of  the  Jus- 
tice court  We  find  nothing  In  these  cases 
to  in  any  wise  prevent  the  applicability  of 
subdivision  7  to  the  present  action. 

Judgment  affirmed. 

WINSLOW,  C.  J.,  took  no  part. 


NE3LS0N  V.  PITTSBURG  COAL  DOCK  CO. 

(Supreme  Court  of  Michigan.     Oct  4,  1909.) 

Master  anh  Sebvant  (8  286*)  —  Death  of 
Servant  —  Negligence— Defjkotive  Appli- 
ances—Questios   S-OB  JUBT. 

Where,  in  an  action  for  death  of  a  servant 
by  the  fall  of  a  coal  bucket  attached  to  a  hoist- 
ln(f  apparatus  by  the  breaking  of  a  bolt,  plain- 
tiff's experts  testified  that  the  bolt  was  orig- 
inally detective  when  made,  and  that  the  defect 
could  have  been  discovered  by  hammering  the 
bolt  before  it  was  placed  in  the  timber,  whether 
defendant  was  negligent  in  failing  to  discover 
the  defect  was  for  the  jury. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant  Cent  Dig.  i  1017;  Dec.  Dig.  i  286.*] 

Error  to  Circuit  Court,  Delta  County; 
John  W.  Stone,  Judge. 

Action  by  Swan  G.  Nelson,  as  administra- 
tor of  Louis  Oscar  Larson,  deceased,  against 
the  Pittsburg  Coal  Dock  Company.  Judg- 
ment for  defendant  and  plaintiff  brings  er- 
ror.    Reversed,   and  new  trial  ordered. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  McALVAX,  and  BROOKE, 
JJ. 

Albin  W.  Norblad  (Newton  C.  Spencer,  of 
counsel),  for  appellant  G.  R.  Empson  (L. 
D.  Eastman  and  E.  C.  Eastman,  of  counsel), 
for  appellee. 


MONTGOMERY,  J.  This  action  Is  brought 
to  recover  damages  for  personal  injuries  re- 
sulting in  the  death  of  plaintifTs  intestate, 
which  injuries  were  sustained  while  In  de- 
fendant's employ  on  their  coal  docks  at 
Gladstone,  Mich.  The  coal  dock  was  used 
for  the  purpose  of  unloading  coal  from 
boats  placed  at  the  side  of  the  dock  onto 
the  dock.  On  the  top  of  the  trestle  work 
built  over  the  dock  proper,  and  over  the 
platform,  were  placed  a  number  of  coal- 
hoisting  derricks.  The  boats  were  moored 
alongside  the  dock,  after  which  the  hoisting 
derricks  would  be  moved  on  top  of  the. dock 
in  such  a  position  that  the  booms  of  the 
derricks  could  be  placed  immediately  over 
the  hatchways  of  the  boats.  Coal  buckets 
would  then  be  lowered  from  the  derricks 
into  the  hold  of  the  boats  through  the 
hatchways,  where  they  would  be  filled  with 
coal  by  men  stationed  there.  The  men  sta- 
tioned in  the  hold  of  the  boat  were  in  the 
employ  of  the .  defendant  and  among  their 
number  was  plaintiff's  Intestate,  who  work- 
ed as  a  coal  heaver  or  shoveler.  In  the 
hold  of  the  vessel  the  men  were  provldctl 
with  two  buckets,  so  that,  when  one  was 
full  and  being  hoisted  and  emptied  of  lis 
contents,  the  other  was  being  filled. 

The  hoisting  apparatus  can  best  be.  under- 
stood by  the  following  diagram: 


•Tor  other  cues  aee  earn*  topic  and  »ecUon  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


778 


122  NOBTHWBSXEBN  BBPOBTEB. 


Digitized  by  LjOOQIC 


AllcbJ 


NELSON  T.  PITTSBUEQ  OOAli  DOCK  CO. 


779 


▲  bolster  wu  stationed  la  tbe  place  where 
the  holBtliig  drum  la  designated  as  being 
placed.  The  dotted  line  running  ap  from  the 
hoisting  dmm  and  continuing  over  the  puUey 
or  sheave^  underneath  tbe  bolt  which  broke, 
and  from  there  continuing  down  around  the 
carriage  and  pulley  which  supported  tbe 
coal  bucket,  was  the  hoisting  line,  which 
raised  the  bucket  from  the  hold  of  the  boat 
up  to  the  dumper  or  tripping  apparatus. 
This  unlatching  would  Instantly  cause  the 
bucket  to  trip  and  empty  the  coal  into  tbe 
hopper  or  pocket  undoneath  it  The  car- 
riage line  was  attached  to  the  front,  or,  ac- 
cording to  tbe  diagram,  the  right  end  of  the 
carriage,  and  was  simply  for  the  purpose  of 
allowing  the  carriage  to  run  out  a  certain 
distance  on  the  boom  or  runway.  The  spot 
designated  "bumper"  above  the  word  "car- 
riage" was  a  stop  at  the  top  end  of  tbe 
boom.  While  tbe  deceased  was  at  work  in 
tbe  hold  of  the  vessel,  tbe  eye  bolt  broke, 
the  bucket  descended,  and  caused  tbe  in- 
juries which  resulted  in  his  death.  The 
questions  of  fact  involved  on  the  trial  were 
whether  tbe  breaking  of  this  eye  bolt  was 
due  to  a  defect  in  the  bolt  itself,  or  due  to 
lmproi>w  management  on  the  part  of  the 
holster;  it  being  the  defendant's  claim  that 
the  evidence,  fairly  construed,  shows  con- 
clusively that  the  carriage  must  have  been 
allowed  to  proceed  with  such  force  against 
tbe  bumper  as  to  place  an  extraordinary 
strain  upon  the  bolt,  and  that  this  was  tbe 
fault  of  a  fellow  servant.  The  plaintiff's 
claim,  on  the  other  hand,  is  that  tbwe  was 
testimony  which  shows  that  the  eye  bolt 
broke  before  the  bumper  was  reached  by  the 
carriage.  The  plaintiff  contends  that  there 
was  testimony  tending  to  show  that  this  eye 
bolt  was  defective,  and  that  it' had  such  de- 
fects as  an  ordinary  inspection  would  dis- 
close. The  circuit  Judge  was  of  the  opinion 
that  there  was  no  evidence  to  show  a  want 
of  proper  inspection  on  the  part  of  tbe  de- 
fendant's servants  charged  with  that  duty, 
and  that  from  an  inspection  of  tbe  bolt  it- 
self it  could  be  determined  that  the  break 
was  a  fresh  one,  and  that  there  was  no  de- 
fect in  it  which  could  have  been  discovered 
by    Inspection. 

The  testimony  offered  on  the  part  of  the 
plaintiff  to  show  a  want  of  proper  Inspec- 
tion and  a  condition  of  tbe  eye  bolt  which 
would  have  made  an  Inspection  of  value 
was  that  of  Adam  Henry,  L.  J.  Anderson,  A. 
D.  Linn,  and  Carl  Nyberg.  Mr.  Henry  ia 
engaged  in  a  business  which  includes  black* 
smithing,  although  he  himself  is  not  now 
working  at  the  trade,  and  it  appeared  never 
did  except  occasionally.  He,  however,  ap- 
pears to  have  qualified  himself  to  the  sat- 
isfaction of  the  circuit  Judge  to  speak,  and 
he  testified  that  in  his  opinion  upon  an  'ex- 
amination of  tbe  eye  bolt  at  the  point  where 
it  broke  there  was  a  defect  before  the  break- 
ing which  could  have  been  discovered  upon 
an  examination;   that,  when  the  iron  was 


welded,  there  was  a  bole  or  a  flaw,  and 
that  whoever  fixed  It  tried  to  hide  it  by 
pounding;  that  that  was  the  way  it  looked 
to  him;  that  tbe  weld  was  poor  workman- 
ship; that  tbe  bolt  bad  been  overheated, 
and  that  it  had  been  broken  and  rewelded; 
that  he  based  this  opinion  upon  the  fact 
that  it  could  not  have  lapped  over  in  the 
way  it  did  when  it  was  welded  in  the  first 
plac&  He  was  unable  to  state  what  tbe 
tensile  strength  of  the  bolt  was. 

Mr.  Anderson,  called  as  an  expert  by  tbe 
plaintiff,  testified  in  answer  to  the  question 
as  to  whether  the  weld  was  so  open  that  it 
would  have  disclosed  that  fact  by  tapping 
that  it  was  not  united,  and  would  have  been 
noticed  if  it  had  been  tapped.  In  answer  to 
the  question,  "Could  yon  have  seen  it  also?" 
he  replied:  "Well,  that  I  couldn't  say,  be- 
cause on  account  of  the  strain  on  the  bolt  it 
might  have  made  this  a  little  different,  and 
I  couldn't  say."  When  pressed:  "In  your 
opinion  could  it  have  been  seen?"  be  replied, 
"Ton  might  have  noticed  some  defects  to 
some  extent  Q.  Would  there  have  been  any 
opening  in  the  bolt  at  the  place  where  it 
broke?  A.  Well,  it  looks  that  way.  Of 
course,  you  can't  tell  exactly  now.  I  wouldn't 
say  that  you  Would  certainly  telL  Yon  could 
certainly  tell  if  you  tapped  it"  Mr.  Linn 
testified  in  answer  to  the  question:  "Canyon 
tell  by  the  inspection  of  a  piece  of  iron  that 
bad  been  broken  whether  there  was  a  visible 
defect  in  it  before  the  break?  A.  At  times 
you  can ;  yes.  Q.  What  Is  your  Judgment  as 
to  whether  there  was  a  visible  defect?  A. 
Tee ;  I  think  there  waa  I  am  positive  there 
was,  because  it  is  partly  burned  in  making. 
•  •  •  The  iron  was  spoiled  by  the  man 
who  made  it  Q.  Could  it  be  ascertained  by 
an  examination?  A.  Tea;  it  shows,  shows 
it  right  here.  It  wasn't  hardly  half.  Q. 
What  test  would  you  apply  to  ascertain 
whether  there  had  been  a  proper  weld  or  not? 
A.  That  I  couldn't  state ;  but  if  I  was  mak- 
ing it  I  could  see  when  the  iron  Is  welded. 
It  shows  all  the  defects  that  are  in  it  after 
it  is  cooled  off.  If  hammered  together,  it  is 
hard  for  a  man  to  see  if  it  is  solid  or  not 
If  it  is  hammered  together,  and  then  smooth- 
ed off,  like,  then  it  is  hard  to  say.  *  *  • 
Q.  Do  you  know  of  any  known  way  or  meth- 
od of  testing  such  a  piece  of  iron  after  it  is 
welded  to  ascertain  whether  it  is  sound  or 
not  after  it  is  finished?  A.  Tbe  only  way 
would  be  to  hammer  on  it  Q.  Would  that 
disclose  whether  It  was?  A.  It  would;  yes. 
Q.  Is  that  a  usual  and  customary  method? 
A.  No;  it  is  not  by  the  general  blacksmith, 
because  a  man  who  is  a  workman  he  gen- 
erally makes  a  good  Job  of  It  if  be  can.  Q. 
Suppose  an  eye  bolt  was  brought  to  you  for 
examination.  What  would  be  your  method 
of  testing  It?  A.  If  it  was  brought  to  me  to 
find  out  I  would  bend  It  and  bend  it  when 
It  was  cold,  which  would  show  you.  Q.  Was 
there  such  a  defect  In  that  piece  of  iron  be- 


Digitized  by  VjOOQ  l€ 


780 


122  NORTHWESTERN  REPORTER. 


(MIclL 


fore  as  wonld  show  plain  and  open,  obvious, 
risible?   A.  Tes." 

Carl  Nyberg,  a  blacksmith,  who  had  work- 
ed In  different  machine  shops  and  general 
blacksmith  shops  and  had  made  eye  bolts  and 
welded  Iron,  testified  that  from  an  examina- 
tion of  the  bolt  he  could  see  a  hole  In  the 
eye  bolt,  and  was  sure  be  could  hare  seen  It 
before  It  broke. 

The  testimony  offered  on  behalf  of  the  de- 
fendant tended  to  show  that  the  eye  bolt  In 
question  was  manufactured  by  a  reputable 
firm  of  whom  the  apparatus  was  bought,  and 
that  It  was  Inspected  by  the  employes  of  the 
defendant  within  a  few  weeks  before  the  ac- 
cident, and  that  It  was  then  placed  In  the 
timber,  and  that  dally  such  Inspection  as 
could  be  made  without  taking  it  out  of  the 
timber  was  given  It  There  was  testimony 
also  on  the  part  of  the  defendant  tending  to 
show  that  an  inspection  of  such  a  bolt  by  the 
hammer  test  was  not  adopted  by  those  who 
use  them  ordinarily.  While  the  testimony 
showing  that  this  bolt  when  last  put  in  place 
had  a  defect  which  could  have  been  discov- 
ered by  a  visual  Inspection  was  meager,  we 
are  constrained  to  hold  that  there  was  enough 
to  carry  the  case  to  the  jury,  and  that  an  ex- 
amination of  the  eye  bolt  does  fiot  conclusive- 
ly establish  that  plaintiff's  witnesses  are 
mistaken. 

The  Judgment  is  reversed,  and  a  new  trial 
ordered. 


MILLER  V.  PETER  et  al. 
(Supreme  Coart  of  Michigan.    Oct.  4,  1909.) 

1.  Judgment  (8  714*)— Res  Judicata. 

A  wife  mortgaged  her  property  as  collateral 
to  secure  a  mortgage  given  by  her  husband  and 
others.  The  principal  mortgage  was  foreclosed, 
she  being  a  party,  with  a  resulting  deficiency, 
and  she  later  conveyed  the  property  covered  by 
her  collateral  mortgage  to  the  mortgagee.  Held, 
that  an  adjudication  m  the  foreclosure  suit  that 
the  mortgagee  was  entitled  to  taxes  paid  by  him 
on  the  property  covered  by  the  principal  mort- 
gage was  res  judicata  as  to  the  wife,  m  a  sub- 
sequent suit  by  her  to  have  her  deed  to  the 
mortgagee  declared  a  mortgage  and  to  redeem, 
so  that  she  could  not  then  claim  that  the  taxes 
were  invalid,  and  should  not  have  been  allowed 
to  the  mortgagee,  especially  as  the  land  covered 
by  the  principal  mortgage  had  since  the  fore- 
closure passed  into  the  ownership  of  a  company 
in  which  the  wife  was  interested,  so  that  she 
had  the  benefit  of  the  discbarge  of  the  tax  lien. 

[Ed.   Note. — For  other  cases,   see   Judgment, 
Cent.  Dig.  {{  1242,  1243 ;    Dec  Dig.  {  714.*] 

2.  Judgment  (J  714*)— Res  Judicata. 

The  firm  of  M.  &  It,  mortgaged  their  land, 
and  both  M.  and  Ia  gave  mortgages  on  their 
individual  lands  as  collateral  thereto.  The  wife 
of  M.  also  gave  a  collateral  mortgage  to  the 
same  person  on  lands  owned  by  her.  The  prin- 
cipal mortgage  was  foreclosed,  all  the  mortga- 
gors being  parties,  resulting  in  a  deficiency. 
Prior  to  and  pending  the  foreclosure,  the  mort- 
gagee released  to  Ia  imrt  of  the  premises  cover- 
ed by  his  separate  mortgage.  After  the  fore- 
closure, Mrs.  M.  conveyed  to  the  mortgagee  the 


land  covered  by  her  separate  mortgage.  Held, 
in  an  action  by  Mrs.  M.  to  have  her  deed  de- 
clared a  mortgage  and  to  redeem,  that  the  ques- 
tion what  credit  should  be  given  for  the  releases 
to  L.  was  res  judicata  by  the  foreclosure^  de- 
cree, and  could  not  be  litigated  again,  especially 
as  no  claim  of  fraud  was  made,  and  that  decree 
had  stood  without  attack,  direct  or  collateral, 
for  a  number  of  years. 

[Ed.  Note.— For  other  cases,  see  Judgment, 
Cent  Dig.  {J  1242,  1243;  Dec.  Dig.  {  714.»] 

3.  Mobtgaoes  (i  36*)— MoBTOAOE  OB  Deed — 
Bubden  of  Pboof, 

The  burden  rests  upon  one  claiming  it  to 
show  that  a  deed  absolute  in  form  was  intended 
as  a  mortgage. 

[Ed.  Note. — For  other  cases,  see  Mortgages, 
Cent  Dig.  §  96;   Dec.  Dig.  {  36.*] 

4.  Mobtgaoes  (J  38*)— Action  to  Redeem— 
Sufficiency  of  Evidence. 

In  an  action  to  have  a  deed  absolute  on  its 
face  declared  a  mortgage  and  for  redemption, 
evidence  held  to  satisfy  the  burden  upon  com- 
plainant of  showing  that  the  deed  was  intended 
to  operate  as  a  mortgage. 

[Ed.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  }  108;   Dec.  Dig.  f  38.*] 

5.  Deeds  (8  194*)— Evidence— Pkksumptions 
— Datte  of  Delivebt. 

It  is  presumed  that  a  deed  was  delivered  at 
the  date  of  its  acknowledgment. 

[Ed.  Note.— For  other  cases,  see  Deeds,  Cent 
Dig.  i  578;   Dec.  Dig.  8  194.*] 

6.  Judgment  (8  479*)— Coixatbbai,  Attack. 

A  decree  in  a  mortgage  foreclosure  suit 
brought  December  4,  Itwl,  cannot  after  the 
death  of  some  of  the  parties  and  the  disability 
of  others  from  testifying,  be  attacked  collateral- 
ly by  representatives  of  a  collateral  mortgagor, 
to  redeem  the  property  covered  by  that  mort- 
gage. 

[Ed.  Note.— For  other  cases,  see  Judgment 
Dec.  Dig.  8  479.*] 

7.  Mobtgaoes  (8  691*)— Fobkclosukk— Satis- 
faction OF  Decbeb— Validity. 

An  attempted  satisfaction  of  a  mortgage 
foreclosure  decree,  by  agreement  between  the 
mortgagee  and  mortgagor  to  apply  thereto  prop- 
erty conveyed  to  the  mortgagee  by  another  as 
collateral  security  of  the  .principal  mortgage, 
made  without  the  consent  or  authority  of  the 
collateral  mortgagor,  would  not  bind  the  latter. 

[Bid.  Note. — For  other  cases,  see  Mortgages, 
Cent.  Dig.  8  1701 ;  Dec.  Dig.  8  591.*] 

8.  Mobtgaoes  (8  602*)  —  Redemptiok  —  Ai.- 
LOWANCE  OF  Rents. 

Persons  to  whom  the  mortgagee,  under  an 
absolute  deed  given  as  security,  conveyed  the 
mortgaged  land  are  chargeable  with  the  rental 
value  of  the  property,  less  expenditures  made  in 
tiie  usual  course  of  husbandry,  in  an  action  by 
grantees  of  the  mortgagor  to  establish  the  deed 
as  a  mortgage  and  to  redeem. 

[Ed.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  8  1778;    Dec.  Dig.  8  602.*] 

Appeal  from  Circuit  Court  St  Clair  Coun- 
ty, in  Chancery ;   Eugene  F.  Law,  Judge. 

Suit  by  Anna  P.  Miller  against  Roxanna 
Peter  and  others,  to  have  a  deed  declared  a 
mortgage  and  for  redemption.  From  a  de- 
cree for  defendants,  complainant  appeals. 
Reversed  and  remanded  for  decree  as  di- 
rected. 


•Fox  other  cases  aee  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  A  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Mlcb.) 


MILLER  V.  PETER. 


781 


Argued  before  MONTGOMERY,  OSTRAN- 
DER,  HOOKER,  MOORE,  and  BROOKE,  JJ. 

James  Van  Kleeck  (George  P.  Cobb,  of 
counsel),  for  appellant.  James  E.  Dotty, 
for  appellees. 

MONTGOMERY,  J.  On  the  5th  of  June, 
1888,  Albert  Miller  and  George  Lewis,  com- 
posing the  firm  of  Miller  &  Lewis,  being  in- 
debted to  William  Peter  In  the  sum  of  $29,- 
000,  gave  notes  aggregating  that  amount  and 
bearing  Interest  at  8  per  cent.,  secured  by 
mortgage  upon  property  in  Bay  and  Arenac 
counties  owned  by  Miller  &  Lewis.  As  a  fur- 
ther security  George  Lewis  and  his  wife  exe- 
cuted a  mortgage  upon  property  owned  by 
Lewis  situated  in  the  county  of  Bay,  reciting  a 
consideration  of  $10,000;  the  condition  being 
that  the  mortgagors  should  pay,  or  cause  to  be 
paid,  $29,000,  according  to  the  terms  of  the 
real  estate  mortgage  executed  by  Miller  &  Lew- 
is. On  the  same  day  Albert  Miller  and  wife 
gave  a  like  mortgage  covering  certain  property 
owned  by  Albert  Miller,  and  Jennie  R.  Mil- 
ler, wl'e  of  Albert  Miller,  gave  a  mortgage 
on  her  Individual  property  In  the  county  of 
St  Clair,  which,  for  a  stated  consideration 
of  $10,000,  covered  the  N.  E.  ^.  of  the  S.  W. 
%,  the  S.  E.  %  of  the  N.  W.  %,  the  S.  W. 
%  of  the  N.  E.  %,  and  the  N.  E.  ^  of  the 
N.  E.  14.  section  3,  in  township  2  N.,  range 
16  E.  The  condition  of  this  mortgage  was 
that  if  the  parties  of  the  first  part  should 
pay  or  cause  to  be  paid,  the  sum  of  $29,000 
according  to  the  terms  of  the  real  estate 
mortgage  executed  by  Miller  &  Lewis,  the 
mortgage  should  be  void,  etc.  Jennie  R. 
MUler  departed  this  lUe  on  the  15th  of 
May,  1904,  Intestate.  She  left  four  children, 
who  united  In  conveying  the  property  cover- 
ed by  the  last-named  mortgage  to  the  com- 
plainant in  this  case. 

On  the  19th  of  December,  1892,  Jennie  R. 
Miller  executed  an  instrument  which  was  in 
the  form  of  a  warranty  deed  running  to  Wil- 
liam Peter  for  a  recited  consideration  of 
$4,000  covering  the  property  named  in  the 
mortgage  given  by  her  to  Peter.  The  prop- 
erty conveyed  was  eleven-twelfths  of  the 
land  described.  Both  the  bill  and  answer, 
however,  treat  this  as  a  conveyance  of  the 
entire  property.  The  bill  in  this  case  Is 
filed  to  have  this  deed  of  December  19,  1892, 
declared  to  be  a  mortgage  and  to  redeem. 
The  bill  avers  that  payments  have  been  made 
from  time  to  time  upon  tills  $29,000  mort- 
gage, and  that  releases  had  been  made  of 
property  held  by  Lewis,  who  was  primarily 
liable  for  the  debt,  under  such  circumstances 
as  would  release  Jennie  R.  Miller,  who  had 
pledged  her  property  as  security  simply, 
without  any  consideration.  On  the  4th  of 
December,  1891,  William  Peter  filed  a  bill 
to  foreclose  the  $29,000  mortgage,  making 
all  the  Interested  parties,  including  Jennie 
R.  MUler,  parties  defendant  On  the  22d  of 
August  1889,  he  had  released  to  Lewis  a 


part  of  the  property  covered  by  the  mort- 
gage given  by  him.  On  the  3d  of  June  he 
made  a  further  release  of  property  covered 
by  the  Lewis  mortgage.  The  evidence  is  not 
very  clear  as  to  the  occasion  for  this,  al- 
though there  Is  testimony  tending  to  show 
that  the  reason  for  this  release  was  that  the 
property,  before  It  was  mortgaged,  had  been 
sold  on  contract,  and  that  it  was  released 
in  order  that  the  parties  equitably  entitled 
to  the  property  might  secure  the  same.  The 
evidence  is  somewhat  obscure,  which  is  per- 
haps not  surprising,  in  view  of  the  lapse  of 
time.  On  the  13th  of  December,  1892,  Wil- 
liam Peter  gave  another  part  release  from 
the  mortgage  made  by  George  Lewis  of  cer- 
tain property,  and  on  December  17th  of  the 
same  year  Lewis  conveyed  to  Peter  property 
which  was  also  described  In  the  mortgage 
given  by  him  for  a  named  consideration  of 
$2,000.  A  mill,  which  was  covered  by  the 
mortgage  given  by  Miller  &  Lewis,  was  burn- 
ed In  July,  1892,  and  was  covered  by  insur- 
ance to  the  amount  of  $17,500.  Of  this  sum 
it  Is  admitted  that  William  Peter  received 
$14,000.  There  Is  no  evidence  that  the  re- 
maining $3,500  was  received  by  him,  but  It 
is  claimed  that  as  between  him  and  Mrs. 
Miller  he  is  chargeable  with  it  whether  he 
received  it  or  not,  as  be  bad  the  right  to 
receive  it 

Testimony  was  taken  in  the  foreclosure 
case  on  the  25th  of  December,  and  again  on 
the  30th  of  December,  the  complainant 
claiming  In  that  proceeding  credit  to  the 
sum  of  $6,316.11  for  taxes  paid  for  the  years 
1884  to  1887.  The  amount  reported  due  by 
the  commissioner  was  $21,469.33.  This  re- 
port was  made  on  the  25th  day  of  November, 
1892.  At  about  this  date  a  company  to  take 
over  the  Miller  &  Lewis  property  described 
In  the  original  mortgage  was  in  contempla- 
tion. Jennie  R.  Miller  and  Albert  Miller 
were  organizers  of  this  company,  and  on  the 
12th  of  October,  1892,  united  with  Mr.  Lew- 
is and  his  wife  in  the  following  consent: 
"We  will  consent  to  you  releasing  ail  the 
real  estate  and  other  property  situate  in 
the  sixth  ward  of  Bay  City,  covered  by  the 
Miller  &  Lewis  mortgage  to  you,  which  Is 
in  process  of  foreclosure,  in  consideration 
that  you  credit  as  a  payment  on  said  mort- 
gage the  sum  of  ten  thousand  dollars,  such 
being  without  prejudice  to  you  as  to  other 
securities" — ahd  signed  by  the  parties.  On 
the  30th  of  December  the  commissioner  made 
a  supplemental  report,  giving  credit  for  $10,- 
280  received  upon  a  sale  of  the  property 
covered  in  this  consent  leaving  a  balance. 
Including  the  tax  item,  of  $11,189.33.  On 
the  same  date  a  decree  was  rendered  con- 
firming the  report  of  the  commissioner,  and 
stating  that  there  was  due  to  Peter  $11,198.- 
03,  and  decreeing  a  sale  of  the  remaining 
property.  No  credit  was  given  In  this  com- 
putation for  the  $4,000,  the  named  considera- 
tion of  the  deed  given  by  Jennie  R.  Miller. 


Digitized  by 


Google 


782 


122  NORTHWESTERN  REPORTER. 


O^lcli. 


The  drcnit  court  commissioner  proceeded  to 
sell  the  property,  and  realized  a  net  sum  of 
$778.85,  leaving  a  deficiency  of  $10,398.03. 
The  matter  rested  here  until  the  6th  day  of 
May,  1896,  when  a  satisfaction  of  this  decree 
was  entered  of  record,  reciting  that:  "The 
complainant  by  himself  and  the  defendants 
by  said  George  Lewis  haying  this  day  come 
together  and  agreed  that  payments  have  been 
made  on  the  decree  heretofore,  to  wit,  on  the 
30tb  day  of  December,  1892,  entered  In  said 
cause,  which  payments  consist  of  a  conyey- 
ance  made  by  Jennie  R.  MUIer  of  a  certain 
farm  in  the  county  of  St.  Clair,  Mich.,  and 
the  conveyance  by  said  George  Lewis  of  cer- 
tain property  in  the  city  of  Bay  City  and 
Bay  county,  Micb.,  and  the  amount  realized 
on  the  sale  of  real  estate  in  the  county  of 
Arenac  and  also  certain  property  described 
in  said  mortgage,  situate  in  said  Bay  City, 
by  which  the  amount  due  on  liald  decree  has 
been  reduced  to  a  balance  of  $1,270.92,  which 
amount  stUI  remains  unpaid  on  said  decree 
after  all  payments  and  credits  applied  there- 
on between  the  parties,  and  said  George  Lew- 
is having  tMs  day  executed  and  delivered  to 
said  complainant  his  promissory  note  for 
said  balance,  •  •  ♦  It  Is  hereby  agreed 
and  stipulated  that  said  decree  is  satisfied, 
and  the  register  of  said  court  is  hereby  au- 
thorized to  enter  satisfaction  of  record." 
Signed  by  William  Peter.  Upon  a  full  hear- 
ing, the  circuit  judge  denied  the  relief  pray- 
ed,  and  the  complainant  appeals. 

The  bill  prays  for  an  accounting  of  the 
rents  and  profits,  and  it  appears  to  be  con- 
ceded In  this  court  that  the  personal  repre- 
sentatives of  Jennie  R.  Miller  are  neces- 
sary parties  to  such  a  proceeding,  but  it  Is 
aslted  that,  in  case  the  court  should  find  the 
complainant  entitled  to  relief,  the  case  be 
remanded,  with  leave  to  bring  in  as  com- 
plainants these  personal  representatives. 
Many  of  the  questions  which  are  raised  we 
think  should  be  held  concluded  by  the  de- 
cree of  foreclosure.  The  claim  that  the  tax- 
es paid  by  Mr.  Peter  should  not  be  credited 
to  him  in  the  foreclosure  proceedings  is  cer- 
tainly precluded  by  the  decree  in  that  case 
if  Jennie  R.  Miller  was  bound  by  that  de- 
cree. We  see  no  reason  for  holding  that 
she  was  not  so  bound.  The  claim  is  not 
Inequitable  in  any  view.  While  there  may 
have  been  defects  in  the  oroceedings  to 
spread  the  taxes,  the  taxes  were  not  dis- 
charged by  such  defects,  and  remained  a 
lien  upon  the  land,  and  the  payment  made 
was  for  the  purpose  of  perfecting  the  title 
and  relieving  the  land  of  this  burden,  and 
as  the  property  was  sold  to  the  South  End 
Lumber  &  Salt  Company,  of  which  Mrs.  Mil- 
ler was  one  of  the  organizers,  it  would  ap- 
pear that  the  benefit  of  relieving  this  land 
from  the  lien  of  these  taxes  had  accrued  to 
the  mortgagors.  The  attempt  to  evade  this 
payment  is.  as  the  circuit  Judge  held,  an  at- 
tempt to  take  advantage  of  a  technicality 


which  does  not  commend  Itself  to  the  court 
The  same  thing  may  be  said  of  the  releases 
of  the  land  of  Mr.  Lewis.  These  releases 
had  been  made  prior  to  this  adjudication, 
and  had  operated  as  payments,  at  least  pro 
tanto,  at  the  time  the  decree  was  made,  if 
at  all,  and  yet  there  Is  no  claim  of  any 
fraud,  and  no  attempt  has  been  made  to  set 
aside  that  decree  by  a  direct  proceeding,  nor 
has  any  attack  been  made  upon  it  for  many 
years. 

Upon  the  principal  question,  however,  of 
whether  the  deed  in  question  was  a  mort- 
gage or  an  absolute  conveyance  the  case  Is 
one  presenting  more  difficulty.  There  is 
nothing  in  the  record  to  Indicate  that  MUler 
was  paid  any  consideration  for  that  deed. 
Excluding  entirely  the  testimony  of  Albert 
Miller  as  incompetent  under  the  statute,  it 
still  appears  that  on  the  19th  of  December, 
1892,  this  deed  was  executed  and  delivered 
without  any  new  consideration.  The  bill 
alleges  the  execution  and  delivery  at  that 
time,  and  the  answer  admits  It  It  appears 
that  on  the  30th  of  December  the  last  com- 
putations of  the  amount  due  upon  the  mort- 
gage of  Miller  &  Lewis  were  made,  and 
that  at  that  time  no  credit  was  given  for 
the  payment  of  this  $4,000  upon  the  mort- 
gage, so  that  It  conclusively  appears  that 
It  was  not  then  treated  as  a  payment  It 
is  true  that  the  burden  of  proof  rests  upon 
the  complainant  to  show  that  this  deed, 
which  was  absolute  in  form,  was  given  as  a 
mortgage.  But  we  think  the  drcnmstances 
show  that  she  has  met  that  burden  of  proof. 
Not  only  Is  there  no  claim  that  any  consid- 
eration passed  at  this  time,  but  the  subse- 
quent recitation  by  Mr.  Peter  over  his  own 
signature.  Indicating  an  attempt  by  an  ar- 
rangement with  Mr.  Lewis  to  treat  this  con- 
veyance as  a  payment  shows  that  it  was 
executed  upon  no  new  consideration.  The 
decree  shows  that  it  was  not  received  as 
payment  at  the  time  it  was  delivered,  so 
that  any  attempt  to  turn  it  into  a  payment 
must  have  depended  upon  subsequent  nego- 
tiations with  some  one.  It  is  suggested  that 
the  testimony  of  Mr.  Young  indicates  that 
this  arrangement  was  made  at  the  time  the 
deed  was  made.  We  think  his  testimony  is 
altogether  too  vague  upon  this  subject  to  be 
accepted  as  controlling. 

It  Is  also  suggested  that  the  delivery  did 
not  occur  until  after  the  decree  was  entered, 
and  that  the  answer  should  be  amended  so 
as  to  admit  of  the  defendant  taking  this 
position.  We  thlnlc,  however,  that  if  we 
give  the  complainant  the  benefit  of  the  pre- 
sumption that  a  deed  was  delivered  at  the 
date  of  its  aclmowledgment  (Johnson  v. 
Moore,  28  Mich.  3),  there  is  no  tangible  evi- 
dence which  disputes  this  presumption,  and 
that  an  amendment  of  the  answer  would  be 
unavailing. 

Reliance  la  had  upon  the  complainant's 
laches  In  bringing  this  suit    This  question 


Digitized  by  LjOOQ  l€ 


Ulna.) 


8CHANN0  T.  ST.  PAUL  CITY  RY.  CO. 


783 


presents  Itself  In  two  aspects:  First,  as  to 
the  laches  In  the  attack  made  upon  this  de- 
cree; and,  second,  as  to  the  laches  In  at- 
tempting to  redeem  the  lands  covered  by 
the  deed.  The  cases  cited  by  defendants' 
connsel  are  mostly  cases  In  which  an  at- 
tempt Is  made  to  attack  or  set  aside  Judi- 
cial proceedings.  So  far  as  this  case  par- 
takes of  that  character,  we  think  the  posi- 
tion of  defendant  Is  unassailable.  We  do 
not  think  this  decree  should  be  open  to  this 
collateral  attack  at  this  late  date,  after  the 
parties  to  the  transaction  are  some  of  them 
dead  and  others  disabled  from  testifying. 
We  think,  therefore,  that  the  decree  should 
stand  as  It  Is,  bnt  as  to  the  subsequent  at- 
tempted settlement  of  1896  It  Is  obvious 
that  this  Is  not  binding  upon  the  complain- 
ant or  the  representatives  of  Jennie  R.  Mil- 
ler. It  would  appear,  then,  that  this  decree 
was  discharged  by  Peter  upon  the  assump- 
tion of  authority  In  George  Lewis  to  make 
application  of  the  farm  In  question  as  a 
payment  at  the  price  of  $4,000.  There  Is 
no  evidence  of  bad  faith,  nor  Is  there,  on 
the  other  hand,  the  slightest  evidence  that 
Mr.  Lewis  had  this  authority.  We  think, 
therefore,  that  this  deed  should  be  held  as 
a  security  for  the  sum  of  $4,000,  and  com- 
plainants should  be  permitted  to  redeem  up- 
on the  payment  of  that  amount,  with  Inter- 
est. The  defendants  should  be  charged  with 
the  rental  value  of  the  property,  less  ex- 
penditures made  In  the  ordinary  coarse  of 
husbandry. 

The  case  will  be  remanded  In  order  to  ad- 
mit of  bringing  In  the  principal  complain- 
ants, with  directions  to  enter  a  decree  in 
accordance  with  this  opinion. 


8CHANNO  V.  ST.  PAUL  CITY  RY.  CO. 
(Supreme  Court  of  Minnesota.    Oct.  15,  1900.) 

1.  Stbeet  Raiiaoads  (S  117*)— Neoligkncb— 
Failusk  to  Look  and  Lister— Question 
OF  Law. 

The  failure  of  a  person  to  look  and  listen 
before  attempting  to .  cross  a  street  railway 
track  is  not,  as  a  general  mle,  Desligence  per 
■e;  bnt  wlien  the  nndispnted  evidence  estab- 
lishes exceptional  circumstances,  wtiich  so  con- 
clusiveiy  indicate  negligence  in  failing  to  loolc 
or  listen  that  there  can  be  no  reasonable  basis 
for  drawing  a  different  conclusion,  the  question 
is  one  of  law. 

[Ed.  Note.— For  other  cases,  see  Street  Rail- 
roads, Cent.  Dig.  §8  249,  250;  Dec.  Dig.  J  117.»] 

2.  Stbekt  Railboads  (8  114»)— Collision— 
contbibtttobt  negligence. 

XJvidence  considered,  and  hrtd,  that  the 
trial  court  correctly  dismissed  this  action  on 
the  ground  that  the  plaintifTs  contributory  neg- 
ligence had  l>een  conclusively  established. 

(Sd.  Note.— For  other  cases,  see  Street  Rail- 
roads, Cent  Dig.  I  250;    Dec.  Dig.  8  114.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Ramsey  Coun- 
ty;   OUn  B.  Lewis,  Judge. 


Action  by  Charles  W.  Schanno  against  the 
St.  Paul  City  Railway  Company.  Jud^ent 
of  dismissal.  From  an  order  denying  motion 
for  new  trial,  plaintiff  appeals.    Affirmed. 

Walter  L.  Chapin,  for  appellant.  W.  D. 
Dwyer,  for  respondent 

START,  C.  J.  On  the  morning  of  May  2, 
1908,  at  about  9 :30  o'clock,  the  plalntlfT,  while 
driving  In  a  covered  milk  wagon  along  Selby 
avenue,  near  the  point  where  it  crosses  Lex- 
ington avenue.  In  the  city  of  St.  Paul,  was 
run  Into  by  the  defendant's  street  car.  The 
wagon  was  wrecked,  the  milk  spilled,  and  the 
plaintUf  personally  Injured  to  some  extent, 
by  reason  of  the  collision,  and  he  brought 
this  action  In  the  district  court  of  the  coun- 
ty of  Ramsey  to  recover  the  damages  so  sus- 
tained on  the  alleged  ground  that  the  col- 
lision was  caused  by  the  alleged  negligence 
of  the  defendant  On  the  trial  of  the  action, 
and  at  the  close  of  the  piaintlCTs  case,  the 
trial  court  on  motion  of  defendant,  dismissed 
the  action  on  the  ground  that  the  evidence 
showed  as  a  matter  of  law  that  the  plain- 
tiff was  guilty  of  contributory  negligence.  He 
appealed  from  an  order  denying  his  motion 
for  a  new  trial. 

The  alleged  negligence  on  the  part  of  the 
defendant  was  that  the  car  was  carelessly 
operated,  and  the  evidence  was  sufficient  to- 
take  the  case  to  the  Jury  on  the  question  of 
the  defendant's  negligence.  The  sole  ques- 
tion, then,  for  our  consideration,  is  whether 
the  undisputed  evidence  conclusively  estab- 
lishes the  plaintiff's  contributory  negligence 
In  the  premises.  The  evidence  tended  to  es- 
tablish these  facts:  The  grade  of  Selby  ave- 
nue rises  at  the  rate  of  4  feet  to  the  100  for 
400  feet  next  west  of  the  point  of  the  colli- 
sion, over  which  the  defendant  operated  by 
electricity  two  (jr  more  lines  of  street  cars. 
Cars  coming  from  the  west  were  accustomed 
for  some  years  to  run  down  this  grade  fre- 
quently and  rapidly,  and  at  a  rate  of  speed 
three  or  four  times  greater  than  the  plain- 
tiff was  accustomed  to  drive  his  team  there- 
on, all  of  which  he  well  knew;  for  in  the 
prosecution  of  his  business  of  delivering  milk 
to  his  customers  he  was  accustomed  to  drive 
dally  along  Selby  avenue  at  this  point  On 
the  morning  In  question  he  was  seated  In  his 
milk  wagon,  the  body  of  which  was  8V^  feet 
long  and  so  Inclosed  that  when  he  was  seat- 
ed In  the  wagon  he  could  see  out  of  the  rear 
thereof  only  through  a  window  6  by  10  Inches, 
and  out  of  the  sides  of  the  wagon  by  leaning 
forward  and  looking  through  glass  panels. 
He  was,  on  the  morning  In  question,  driving 
down  Selby  avenue  parallel  with  and  on  the 
south  side  of  defendant's  railway  track,  go- 
ing east  toward  Lexington  avenue.  When  he 
reached  a  point  400  feet  therefrom,  where  the 
grade  begins  to  descend,  he  looked  through 
the  rear  window  of  his  wagon  and  saw  a 


Tat  othar  ntm  see  Mm*  tople  and  aactiOB  NUMBER  In  Dec  A  Am.  Digs.  1907  to  date,  A  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


784 


122  NORTHWESTERN  REPORTER. 


(Minn. 


car  coming  two  or  three  blocks  away.  He 
kept  on  down  the  grade,  without  again  look- 
ing for  the  car,  although  he  knew  that  It 
was  following  him,  driving  his  team  at  the 
rate  of  fire  miles  an  hour.  He  thought  the 
car  was  far  enough  away  so  that  he  could 
make  the  crossing  as  usual,  and  gave  no  fur- 
ther thought  to  the  car.  When  he  reached 
Lexington  avenue  be  started  at  an  angle 
across  defendant's  railway  track,  to  go  north 
along  that  avenue,  when  his  wagon  was 
struck  and  wrecked  by  the  oncoming  car. 
His  horses  were  not  Injured.  He  did  not 
bear  any  ringing  of  bells  or  other  warning 
from  the  car  behind  him.  On  his  cross-exam- 
ination he  testified  as  follows :  "Q.  And  yon 
thought  on  the  top  of  the  hill,  'Now,  there  Is 
time  for  me  to  cross  this  track  and  get  down 
the  bill.'  That  was  your  idea?  A.  Yes,  sir. 
Q.  And  you  were  interested  with  Mr.  Schmidt 
talking  on  other  subjects?  A.  Tes,  sir.  Q. 
And  as  you  came  down  the  hill,  and  down 
near  Lexington  avenue  here,  driving  along 
about  Ave  miles  an  hour —  A.  About  five 
miles  an  hour,  I  should  think.  Q.  Of  course, 
you  didn't  look  for  a  car  then?  A.  No,  sir. 
Q.  Didn't  pay  any  attention  at  all  as  to  the 
car  coming,  did  you?  A.  No,  sir.  Q.  And 
the  first  yon  knew  was  that  your  wagon  was 


running  along  and  tipping  over?  A.  Yes, 
sir." 

The  law  applicable  to  these  facts  is  well 
settled.  The  general  rule  Is  that  the  fail- 
ure of  a  person  to  look  and  listen  before  at- 
tempting to  cross  a  street  railway  track  is 
not  negligence  per  se;  but  when  the  undis- 
puted evidence  establishes  exceptional  cir- 
cumstances, which  so  conclusively  indicate 
negligence  in  failing  so  to  look  or  listen  that 
there  can  be  no  reasonable  basi:;  for  drawing 
a  different  conclusion,  the  question  is  one  of 
law.  Shea  v.  Railway  Co.,  50  Minn.  395, 
52  N.  W.  902;  Watson  v.  Railway  Co.,  53 
Minn.  551,  55  N.  W.  742 ;  Hickey  v.  Railway 
Co.,  60  Minn.  119,  61  N.  W.  893;  Terlen  v. 
Railway  Co.,  70  Minn.  532,  73  N.  W.  412; 
Shlndelus  t.  RaUway  Co.,  80  Minn.  364,  83 
N.  W.  386;  Smith  v.  Railway  Co.,  95  Minn. 
254,  104  N.  W.  18;  Bremer  v.  Railway  Oo. 
(Minn.)  120  N.  W.  382.  We  are  of  the  <H)ln- 
ion,  upon  a  full  consideration  of  the  undis- 
puted evidence,  that  this  case  falls  within 
the  exception  to  the  general  rule,  and  that 
the  trial  court  correctly  dismissed  the  action 
on  the  ground  that  the  plalntitTs  contributory 
negligence  had  been  conclusively  established. 

Order  affirmed. 


Digitized  by  LjOOQIC 


MldL) 


WARD  T.  COOK. 


783 


WARD  V.  COOK. 
(Supreme  Conrt  of  Michigan.     Oct  4,  1909.) 

1;  PUEADINO  (i    368*)  —  ElJECTIOn    BbIWIEH 

Counts. 

Where  all  three  of  the  coontg  of  a  declara- 
tion were  based  on  a  rescission  of  a  contract,  by 
which  plaintiff  was  to  conduct  a  branch  azency 
for  the  sale  of  defendant's  perfumery  proaucts, 
a  tender  of  the  goods  then  on  band,  and  demand 
for  the  amount  plaintiff  paid  under  the  con- 
tract, the  fact  that  the  ground  of  rescission  on 
the  first  count  was  defendant's  breach  of  his 
agreement  to  adequately  instruct  plaintiff  in  the 
business,  etc,  while  that  in  the  other  two  counts 
was  defendant's  false  rejyresentattons  as  to  the 
quality  of  the  ^oods,  did  not  require  plaintiff 
to  elect  on  which  uieory  he  wonld  proceed; 
neither  counts  affirming  the  contract. 

[Ed.    Note.— For   other   cases,    see    Pleading, 
Cent.  Dig.  i§  1199-1209;    Dec.  Dig.  i  369.*] 

2.  Fbaud  (g  53*)  —  AcnoiTS  —  Aduissibiliit 

or  Evidence. 

In  an  action  for  damages  for  having  in- 
duced plaintitF  to  execute  a  contract  with  de- 
fendant by  which  plaintiff  was  to  conduct  a 
branch  agency  for  the  sale  of  defendant's  prod- 
ucts, by  misrepresentations  of  the  gnality  there- 
of, audi  of  his  intention  to  establish  a  perma- 
nent agency,  letters  containing  inquiries  by 
plaintiff,  and  representations  by  defendant  which 
tended  to  establish  plaintiff's  claim  of  defend- 
ant's represeotations  as  to  quality  and  the  size 
of  his  business,  and  his  statement  of  his  in- 
tention to  establish  a  permanent  branch  busi- 
ness, and  detailing  the  transactions  between 
them,  were  admissible,  as  well  as  the  fact  that 
defendant's  agent,  who  conducted  the  negotia- 
tions with  plaintiff,  invited  no  tests  of  the 
Quality  of  the  goods  as  bearing  upon  the  good 
faith  of  the  representations. 

lEd.  Note. — For  other  cases,  see  Fraud,  Cent. 
Dig.  {  49;    Dec.  Dig.  i  53.*] 

8.  Contracts  (S  322*)— Breach— Action— Ad- 

MISSIBILITT  of  EVIDENCE. 

In  an  action  for  damages  caused  by  de- 
fendant's breach  of  a  contract  by  which  plain- 
tiff was  to  conduct  a  branch  agencjr  for  the  sale 
of  defendant's  products,  by  not  giving  sufficient 
instructions  apon  the  business,  as  agreed,  as 
well  as  by  misrepresentations  as  to  the  necessity 
of  experience  therein,  testimony  and  letters  as 
to  plaintiff's  difficulty  in  procuring  canvassers 
pursuant  to  their  plan,  and  as  to  the  results  ob- 
tained from  them,  were  admissible  on  the  suffi- 
ciency of  the  instructions  and  on  the  misrep- 
resentations alleged. 

[Ed.   Note.— For  other  cases,  see  Contracts, 
Dec.  Dig.  f  322.*1 

4.  CoNTBACTS  (I  349*)  —  Action— Aduissibii.- 
rrr  of  Evidence — Rescission. 

In  an  action  for  damages  caused  by  breach 
of  contract  by  which  plaintiff  was  to  conduct 
a  branch  agency  for  the  sale  of  defendant's 
products,  and  by  false  representations  as  an 
inducement  thereto,  letters  to  defendant  from 
plaintiff's  attorneys,  rescinding  the  contract  and 
tendering  the  goods  on  hand,  were  admissible  to 
show  rescission. 

[Ed.   Note. — For  other  cases,  see  Contracts. 
Dec.  Dig.  i  849.*] 

5.  CoNTBACTS  (S  849*)— Actions— ADinasiBH.- 

ITT  or  EVIOBNOB. 

In  an  action  for  damages  caused  by  de- 
fendant's breach  of  a  contract  by  which  plain- 
tiff was  to  conduct  a  branch  agency  for  the  sale 
of  defendant's  products,  by  failure  to  instruct 
plaintiff,  as  afreed,  and  by  misrepresentations 
as  to  the  quality  of  the  goods,  intention  to  es- 
tablish a  permanent  agency,  etc.,  a  letter  notify- 


ing defendant  that  his  agent  had  been  at  plain- 
tiff's town  to  open  the  office,  and  that  the  stock 
had  not  arrived,  and  inquiring  whether  be  should 
insure  the  goods,  with  defendant's  answer  ad- 
vising that  express  receipts  for  the  goods  had 
been  mailed,  and  telling  plaintiff  to  insure  the 
stock  if  he  desired,  and  charge  it  to  the  ex- 
pense account,  was  admissible  in  evidence. 

[Ed.   Note.— For  other  cases,  see'  Contracts,' 
Dec.  Dig.  I  349.*] 

e.  Appeal  and  E)bbob  (|  1053*)— Reception 

OF  Evidence— Cube  op  Ebbor. 

Any  error  in  admitting  three  exhibits  was 
cured  by  subsequently  striking  them  out. 

[Ed.  Note. — lfV)r  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  i  1053;*  Trial,  Cent.  Dig.  | 
977.] 

7.  Appeal  and  Ebbob  (S  1053*)  —  Hahuless 
Ebbob— Admission  of  Evidence. 

In  an  action  for  damages  for  breach  of  a 
contract  by  which  plaintiff  was  to  establish  a 
sales  agency  for  defendant's  goods,  any  error  in 
admitting  letters  as  to  the  expenses  of  the  busi- 
ness and  plaintiff's  salary  was  harmless,  where 
the  court  afterwards  took  from  the  jury's  con- 
sideration the  questions  of  expenses  and  salary. 
[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  }g  4178-4184;  Dec.  Dig.  { 
1053;*   Trial,  Cent  Dig.  i  977.] 

8.  Fbaud  (J  52*)  —  Actions  —  Admission  or 

Evidence. 

In  an  action  for  damages  caused  by  defend- 
ant's false  representations  that  he  intended  to 
establish  a  permanent  agency,  made  to  induce 
plaintiff  to  contract  to  conduct  a  branch  sales 
office  for  defendant's  products,  plaintiff's  testi- 
mony describing  the  office  fitted  up  by  defend- 
ant, as  well  as  the  manner  in  which  the  goods 
received  were  packed,  was  admissible. 

JEd.  Note.— For  other  cases,  see  Fraud,  Dea 
Dig.  S  52.*] 

9.  Fbaud  (|  52*)— Actions- Admission  of 
Evidenck. 

In  an  action  for  damages  caused  by  false 
representations  by  which  plaintiff  .was  induced 
to  contract  with  defendant  to  open  a  branch 
office  for  the  sale  of  defendant's  goods,  evidence 
that  plaintiff  became  suspicious  as  to  defend- 
ant's representations  that  he  conducted  the 
largest  exclusive  manufactory  of  such  goods,  was 
admissible. 

[Ed.  Note.— For  other  cases,  see  Frand,  Dec. 
Dig.  S  62.*] 

10.  Fbaud  (8  64*)  —  Actions— Admisbibilitt 
or  Evidence— Intent. 

In  an  action  for  damages  caused  by  false 
representations  by  which  plaintiff  was  induced 
to  open  a  branch  depot  for  the  sale  of  defend- 
ant's perfumery,  made  as  to  the  quality  of  the 
goods,  the  permanency  of  the  business,  etc., 
where  80  other  persons  were  induced  to  enter 
into  the  identical  contract  by  defendant  by  the 
advertisement  which  induced  plaintiff  to  make 
the  contract,  such  other  persons  were  properly 
allowed  to  testify  to  their  contract  and  the  en- 
tire history  of  their  negotiations  with  defend- 
ant which  were  similar  in  every  respect  to  those 
with  plaintiff,  on  the  question  of  the  fraudulent 
intent. 

[Ed.  Note.— For  other  cases,  see  Fraud,  Cent 
Dig.  (S  60,  61 ;  Dec.  Dig.  S  54.*] 

11.  Tbial  (I  65*)— Reception  of  Evidence. 
A  qnestion,  which  was  excluded  when  asked 

by  plaintiff,  was  properly  excluded  when  after- 
ward asked  by  defendant;  consistency  in  rul- 
ings tieing  essential  to  the  orderly  conduct  of  a 
trial. 

[Ed.  Note.— For  other  cases,  see  Trial,  Dec. 
Dfg.  (  55.*] 


*For  other  oases  see  same  toplo  and  saoUoo  NUMBER  In  Dee.  A  Am.  Digs.  1M7  to  date,  A  Reporter  Indexes 
122N.W.-60 


Digitized  by 


Google 


786 


122  NORTHWESTERN  REPORTER. 


(Mich. 


12.  Fbaitd  (S  54*)— Action— Adiossibiutt  or 

EVIDSNCK. 

In  an  action  for  damages  by  frandulent  rep- 
resentations by  which  plaintiff  was  induced  to 
contract  with  defendant  to  open  a  sales  office 
for  defendant's  products,  where  the  contract 
used  the  words  it"  and  "its"  In  referring  to 
defendant  instead  of  the  personal  pronouns 
"he"  and  "his,"  and  defendant  testified  that  he 
did  not  get  the  form  of  the  contract  from  a 
corporation,  a  question  as  to  where  defendant 
obtained  the  contract,  and  his  answer  that  he 
got  it  from  another  concern,  were  proper,  the 
evidence  tending  to  show  that  defendant's  pur- 
pose in  using  the  words  in  the  contract  was 
to  misrepresent  the  character  and  importance 
of  his  business. 

[Ed.  Note.— For  other  cases,  see  Fraud,  Dec. 
Dig.  i  54.»] 

18.  OoNTBACTS  (g  274*)— Rescission— EiTECT. 
Where  plaintiff  rescinded  his  contract  with 
defendant  to  establish  a  branch  apency  for  the 
sale  of  defendant's  perfumery,  before  bringing 
an  action  for  damages  caused  by  defendant's 
breach  thereof,  and  by  his  fraudulent  repre- 
sentations as  to  the  quality  of  the  goods,  etc., 
he  could  not  recover  therein  for  salary  and  ex- 
penses as  provided  by  the  contract. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Dec.  Dig.  S  274.*] 

14.  AppEAI,  AMD  EBROB  (S  1053*)— RWJEPTIOH 

OF  Evidence — Erbob  Cubed  bt  Chaboe. 
In  an  action  for  damages  caused  by  mis- 
representations by  which  plaintiff  was  induced 
to  contract  to  conduct  a  branch  sales  agency 
for  defendant's  goods,  brought  npon  rescind- 
ing the  contract,  the  court's  refusal  to  charge 
plaintiffs  request  as  to  the  misrepresentations 
as  to  salary  and  expenses,  and  the  refusal  to 
submit  that  question  to  the  jnry,  eliminated  the 
evidence  relative  to  such  misrepresentations. 

[BM.  Note.— For  other  cases,  see  Appeal  and 
Brror,  Cent.  Dig.  {{  4178-4184;  Dec.  Dig.  $ 
1053;*    Trial,  Cent.  Dig.  i  977.] 

15.  Tbiai  (J  256*)— InaTRucTioNS— Request— 
NECEsanr.' 

In  an  action  for  damages  caused  by  de- 
fendant's breach  of  contract  by  which  plfuntiff 
was  to  ccHiduct  a  branch  depot  for  the  sale  of 
defendant's  goods,  and  by  fraudulent  represen- 
tations as  to  their  quality,  etc.,  brought  after 
rescission  by  plaintiff,  failure  to  specifically 
instruct  that  the  court  had  withdrawn  all  evi- 
dence as  to  payment  of  salary  and  expenses  was 
not  revejrsibTe  where  defendant  did  not  request 
a  charge  on  the  question,  as  he  should  have 
done,  especially  where,  under  the  charge  given, 
the  jury  could  not  have  been  misled. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  fi  627-641;    Dec.  Dig.  {  255.*] 

16.  Tbiai,  (§  273*)— iNSTBUcnoN— Objections 
—Time   Extended. 

The  court  is  not  inclined  to  extend  the 
scope  of  the  statute  allowing  assignments  of 
error  to  the  charge  after  the  trial. 

[E}d.  Note. — For  other  cases,  see  Trial,  Dec. 
Dig.  i  273.*] 

17.  Fbaud    (5    65*)— Action— Inbtbuctionb— 
Subject  of  Fraudulent  Representations. 

In  an  action  for  damages  caused  by  fraud- 
nlent  representations  made  to.  induce  plaintiff 
to  enter  into  a  contract  to  seli  defendant's 
goods,  to  the  effect  that  no  experience  was 
necessary,  etc.,  where  the  evidence  showed  that 
defendant  advertised  for  general  sales  agents  to 
eatablish  branch  offices,  and  stated  that  expe- 
rience was  unnecesaai^,  the  court  properly  in- 
structed that  if  the  jury  found  that  the  ad- 
vertisement meant  that  no  experience  in  han- 
dling the  goods  as  a  general  sales  agent  was 
necessary,   the   language  might  be   the  subject 


of  a  fraudulent  representation,   though  it  did 
not  define  the  word  "necessary." 

[Ed.  Note.— For  other  cases,  see  Fraud,  Dec. 
Dig.  §  65.*] 

18.  CoNTBAcn  (I  202*)— CoRTBAcn  or  Eh- 

PLOTMEira — CONSTBUCnOR. 

Where,  by  a  contract  by  which  plaintiff 
was  engaged  to  act  as  general  sales  agent  for 
defendant  s  goods  and  open  an  office  for  that 
purpose,  defendant  agre^  to  instruct  plaintiff 
in  the  details  of  the  business  until.  In  defend- 
ant's estimation,  he  was  sufficiently  instructed, 
he  was  bound  to  reasonably  instruct  plaintiff  in 
good  faith  upon  the  manner  of  conducting  the 
business. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Dec.  Dig.  I  202.*! 

19.  Contbactb  (I  823*)— AcnoH— JoBT  Ques- 
tion—Bbeach. 

In  an  action  for  damages  caused  by  de- 
fendant's breach  of  a  contract  by  which  plain- 
tiff was  to  establish  a  branch  sales  agency  for 
defendant's  products,  by  failing  to  instruct  plain- 
tiff in  the  bnsiness,  whether  defendant  in  good 
faith  gave  plaintiff  reasonable  instruction,  held 
a  jury  question. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Dec.  Dig.  S  323.*] 

20.  Tbial  (S  350*)— Speciai,  Intebrooatobies 
— confobmitt  to  issues. 

In  an  action  for  damages  caused  by  de- 
fendant's breach  of  a  contract  by  which  the 
plaintiff  agreed  to  conduct  a  branch  sales  office 
for  defendant's  goods,  by  failing  to  instruct 
plaintiff,  as  agreed,  upon  conducting  the  busi- 
ness, and  by  misrepresentations  that  defend- 
ant intended  to  establish  a  permanent  branch 
office,  interrogatories  as  to  whether  defendant 
intended  to  establish  a  permanent  office,  wheth- 
er plaintiff  relied  upon  defendant's  statement 
that  he  intended  to  ao  so,  and  whether  defend- 
ant sufficiently  instructed  plaintiff  in  handling 
the  business,  as  agreed,  called  for  findings  con- 
clusive of  plaintifrs  right  to  recover  ana  wer« 
proper. 

[Ed.  Note.— For  other  casea,  see  Trial,  Cent. 
Dig.  SS  828-833;   Dec.  Dig.  i  350.*] 

Error  to  Circuit  Conrt,  xWayne  County ; 
Alfred  J.  Mnrphy,  Jodge. 

Action  by  John  W.  Ward  against  Cliff  R. 
Cook.  Judgment  for  plaintiff,  and  defendant 
brings  error.    Affirmed. 

Defendant's  answer  to  plaintifrs  letter,  re- 
lating to  the  visit  of  Dowd  and  the  nonar- 
rival  of  the  stod^  stated  that  defendant,  on 
the  same  day,  bad  mailed  plaintiff  express 
receipts  for  the  shipment,  and  toM  bim  to 
insure  the  stock  In  his  own  name  If  be  de- 
sired, and  charge  it  to  the  expenses  of  the 
business. 

Argued  before  OSTRANDER,  HOOKER, 
MONTGOMERY,  McALVAY,  and  BROOKE, 
JJ. 

Graves,  Hatch  &  Wasey,  for  appellant 
Frazer,  Griswold  &  Slyfleld,  for  appellee. 

McALVAT,  J.  Plaintiff,  a  resident  of  the 
state  of  Iowa,  recovered  in  the  Wayne  cir- 
cuit court  a  judgment  against  defendant,  a 
resident  of  Detroit,  for  certain  money  paid 
and  losses  sustained  under  a  certain  contract 
between  the  parties.  The  defendant  in  1905 
caused  to  be  inserted  in  newspapers  In  sev- 


•For  other  cues  le*  sam*  topic  and  (action  NUMBER  in  Dee.  *  Am.  Digs.  1907  to  date,  *  Reporter  Indexis 


Digitized  by  VjOOQ  IC 


Mich.) 


WARD  ▼.  COOK. 


787 


eral  states  an  adTertlsement  reading  as  fol- 
lows: 

"Man,  trustworthy.  To  manage  branch  of- 
fice and  distributing  depot  for  large  manu- 
facturer; salary  to  start  with  $1,500  first 
year,  and  extra  commissions  and  expenses. 
Applicant  must  haye  good  reference  and 
$1,000  cash.  Capital  secured,  experience  un- 
necessary. Address  Manufacturer,  21  Atwa- 
ter  Street,  Detroit,  Michigan." 

Plaintiff  saw  this  In  the  Chicago  Record- 
Herald,  and  on  September  25,  1905,  answered 
it,  stating  his  business  experience,  habits, 
present  occupation,  and  ability  to  give  ref- 
erences, and  asked  for  fnll  particulars.  De- 
fendant replied  at  length  on  Septeml>er  27th, 
using  the  trade-name  "The  Elysian  Manu- 
facturing Co.,"  under  which  he  was  doing 
business.  Tbia  letter  contained  statements 
that  "It  is  our  Intention  to  open  an  (^ce  and 
distributing  depot  in  your  locality,  and  to  en- 
ter Into  a  business  arrangement  with  a  trust- 
worthy and  responsible  man  to  manage  the 
business.  •  •  •  We  are  willing  to  enter 
into  a  permanent  arrangement  with  a  satis- 
factory party,  and  will  pay  $1,500  per  year, 
payable  monthly  for  the  first  two  years,  and 
to  this  we  will  add  a  commission  of  5%  on 
all  goods  sold  through  his  department  •  *  • 
The  office  and  distributing  dei>ot  is  opened 
and  furnished  at  our  expense.  We  shall  pay 
all  the  running  expenses  such  as  rents,  post- 
age, advertising,  typewriting,  clerical  help, 
etc.  ♦  *  *  We  expect  to  send  a  man  from 
our  experienced  staff  to  instruct  the  manager 
thoroughly  in  all  details  of  the  work.  ♦  •  • 
The  cash  capital  required  on  your  part  ($1,- 
000)  can  be  withdrawn  In  full  at  the  expira- 
tion of  any  arrangement  we  shall  make  with 
you.  •  •  •  Tour  capital  is  perfectly  se- 
cure, as  you  always  have  on  hand  either  the 
cash  or  its  equivalent  in  merchandise."  Oth- 
er letters  followed.  In  one  of  which  from  de- 
fendant was  inclosed  a  booklet,  which  the 
letter  stated  was  "descriptive  of  part  of  the 
goods  which  we  manufacture,  and  which  will 
give  you  some  idea  of  our  line."  Another 
letter  stated:  "Inasmuch  as  we  are  the  larg- 
est exclusive  manufacturers  of  our  line  of 
goods  in  the  country,  we  are  in  position  to 
meet  any  and  all  competition." 

The  description  given  in  the  booklet  reads : 
"Quality.  Our  perfume  and  floral  waters  are 
equal  to  the  highest  standard  of  such  goods 
in  this  country  or  Europe.  We  manufacture 
all  the  leading  flower  odors,  and  after  ten 
years'  experience  and  successful  manufactur- 
ing, we  challenge  comparison  with  any  oth- 
er like  goods  without  regard  to  price." 

At  the  invitation  of  defendant  plaintiff 
came  to  Detroit  and  went  to  defendant's  of- 
fice. Plaintiff  claims  that  he  was  met  by  a 
man  named  McGuire,  who  stated  that  de- 
fendant was  busy,  and  could  not  see  him, 
but  he  could  attend  to  the  business  just  as 
weU;  that  during  the  conversation  which  en- 
■ued,  relative  to  the  business,  he  asked  Mc- 


Guire as  to  the  quality  of  the  goods  mann- 
f  actured,  and  he  produced  a  copy  of  the  book- 
let, saying,  as  be  referred  to  the  page,  that 
it  described  the  quality  of  the  goods  they 
manufactured;  that  he  was  taken  into  Mr. 
Cook's  office  and  introduced  to  him  by  Mc- 
Guire, who  did  practically  all  the  business, 
even  to  preparing  the  contract ;  that  he  saw 
defendant  but  a  few  moments  at  the  tim« 
the  contract  was  signed. 

There  is  a  sharp  dispute  between  plaintiff 
and  defendant  as  to  what  occurred  at  this 
time.  McGuire  was  not  produced  as  a  wit- 
ness 

The  contract  is  as  follows: 

"This  agreement,  made  and  entered  into 
this  tenth  day  of  October,  1905,  by  and  be- 
tween the  Elysian  Manufacturing  Company, 
party  of  the  first  part,  and  J.  W.  Ward, 
party  of  the  second  part,  witneeseth: 

"That  the  parties  hereto,  after  a  personal 
interview,  and  after  a  personal  examlnatioii 
by  said  second  party,  of  the  goods  manu- 
factured by  said  first  party,  have  embodied 
the  result  of  all  previous  and  present  nego- 
tiations into  this  writing,  said  agreement  be- 
ing as  follows,  to  wit: 

"(1)  Said  first  party  hereby  engages  the 
said  second  party  in  the  capacity  of  gen- 
eral sales  agent,  to  conduct  a  sales  agency 
in  the  city  of  Des  Moines,  state  of  Iowa,  for 
a  period  of  two  (2)  years  from  the  date  that 
the  sales  office  is  opened  for  the  second,  as 
hereinafter  provided  for,  and  for  and  in  con- 
sideration of  the  faithful  performance  and 
fulfillment  of  each  and  all  of  the  several 
agreements  herein  contained  and  agreed  to 
between  the  parties,  the  party  of  the  first 
part  agrees  t6  engage  the  said  second  party 
for  a  period  of  twenty-four  (24)  months,  and 
agrees  to  pay  the  party  of  the  second  part 
one  hundred  and  fifty  dollars  ($150)  per 
month,  as  hereinafter  provided,  and  give  five 
per  cent  (5%)  additional  commission  on  all 
sales  of  said  office  during  the  continuance  of 
this  contract 

"(2)  The  party  of  the  first  part  agrees,  at 
its  own  expense,  to  open  and  flt  up  an  of- 
fice or  salesroom  for  the  use  of  the  party 
of  the  second  part  at  said  city,  in  which  the 
party  of  the  second  part  shall  carry  on  said 
business  as  herein  provided  for,  and  the  par- 
ty of  the  first  part  further  agrees  to  supply 
stationery  and  circulars  for  the  proper  han- 
dling of  the  business.  Also  to  sell  and  deliv- 
er such  stock  as  It  manufactures  and  sells 
as  the  trade  of  said  office  may  require  from 
time  to  time  at  forty  per  cent  (40%)  discount 
from  retail  list  prices,  and  to  supply  mer- 
chandise for  all  moneys  received  from  said 
second  party,  and  to  instruct  said  second 
party  In  the  details  of  handling  the  busi- 
ness, until  he  is  sufficiently  instructed  tn  the 
estimation  of  said  first  party. 

"(3)  At  the  expiration  of  the  term  and  ful- 
fillment of  this  agreement  the  party  of  th« 
first  part  further  agrees  to  repurchase  from 


Digitized  by  VjOOQ  l€ 


788 


122  NORTHWESTERN  REPORTER. 


(Hlcb. 


said  eecond  party  all  stock  that  he  may  have 
on  hand,  purchased  from  said  first  party, 
paying  therefor  In  cash  the  same  prices  orig- 
inally charged  him. 

"In. consideration  of  the  foregoing  and  sub- 
sequent agreements,  the  said  second  party 
agrees  to  the  following: 

"(1)  The  said  party  of  the*  second  part  will 
and  does  hereby  engage  and  agrees  to  be- 
come general  sales  agent  for  the  goods  manu- 
factured and  sold  by  the  party  of  the  first 
part,  as  heretofore  stipulated,  for  a  term  of 
two  (2)  years,  and  that  he  will  devote  bis 
whole  time  and  efforts  to  advancing  the  suc- 
cess of  the  business,  and  to  satisfactorily 
perform  the  duties  herein  required  of  him, 
dealing  honorably  with  the  party  of  the  first 
part,  the  public,  and  all  persons  with  whom 
he  may  have  business  relations. 

"(2)  That  the  said  second  party  will  sup- 
ply no  stock  to  agents,  dealers,  or  other  pur- 
chasers from  him  that  will  In  any  way  de- 
moralize the  trade,  and  only  for  cash  with 
orders,  or  thirty  (30)  days'  time.  If  secured 
by  the  Indorsement  of  some  financially  re- 
sponsible party,  or  on  some  satisfactory  let- 
ters of  credit  Said  second  party  Is  to  use 
due  care  and  diligence  In  looking  up  the 
standing  of  people  to  whom  goods  are  sold 
on  credit,  and  then,  if  any  losses  arise,  these 
losses  are  to  be  charged  as  an  item  of  ex- 
pense to  the  business. 

"(3)  Said  second  party  further  agrees  to 
carry  a  stock  of  merchandise  amounting  to 
.one  thousand  six  hundred  and  slzty-slx  dol- 
lars and  «»/ioo  (?1,666.66)  at  list  prices, 
which  shall  be  an  assortment  of  the  various 
goods  manufactured  or  handled  by  the  said 
first  party,  such  stock  and  assortment  to  be 
selected  by  the  party  of  the  first  part,  or  to 
be  Jointly  selected,  and  to  be  billed  to  said 
second  party  at  forty  per  cent  (40%)  dis- 
count from  retail  prices,  amounting  to  one 
thousand  dollars  ($1,000)  net 

"(4)  The  party  of  the  second  part  further 
agrees  to  furnish  the  said  first  party  with 
dally  and  weekly  reports,  and,  at  the  end  of 
each  month,  to  forward  to  the  party  of  the 
first  part  a  report  of  all  business  done  during 
the  month,  giving  the  names  and  addresses 
of  any  and  all  agents  appointed,  a  full  and 
accurate  statement  of  expenditures,  amount 
of  goods  sold,  of  money  collected,  and  any 
other  Information  regarding  the  business 
that  may  be  desired  by  the  party  of  the  first 
part 

"(5)  As  the  permanent  success  of  this  busi- 
ness win  depend  upon  a  reasonable  amount 
of  merchandise  being  sold,  it  Is  understood 
and  agreed  that  the  sales  of  each  month 
shall  amount  to  five  hundred  dollars  ($500), 
which  shall  be  considered  the  minimum 
amount  of  business  necessary  to  constitute  the 
fulfillment  of  this  contract  If  the  sales  of 
any  month  shall  not  amount  to  the  minimum 
amount,  namely,  five  hundred  dollars  ($500), 
and  during  the  succeeding  months  sales 
should  be  In  excess  of  the  minimum  amount 


to  make  up  an  average  of  five  hundred  Hair 
lars  ($S0O)  per  month,  this  contract  will  there- 
by be  fulfilled  in  this  respect  by  the  party 
of  the  second  part 

"If  the  sales  at  the  end  of  the  first  year 
shall  not  have  averaged  five  hnndred  dol- 
lars ($500)  per  month,  the  party  of  the  first  ^ 
part  resMves  the  right  to  cancel  this  con-  1 
tract,  if  It  so  desires,  and  upon  such  cancel-  ' 
latlon,  shall   reporchase   from  said  second 
party,  all  stock  that  he  may  have  on  hand, 
purchased  from  said  first  party,  at  prices 
originally  charged. 

"All  sales  to  be  made  to  agents,  demons 
strators,  and  dealers  at  a  discount  of  thirty- 
three  and  one-third  per  cent  (33^%)  from 
list  or  retail  prices. 

"(6)  It  is  mutually  understood  and  agreed 
between  the  parties  hereto  tliat  the  said 
second  party  shall  have  the  right  and  au- 
thority to  collect  all  moneys  for  business 
done  through  said  office,  and  that  at  the 
end  of  each  mouth,  after  deducting  from  the 
receipts  of  this  office,  the  amount  of  bis 
own  remuneration,  to  wit,  one  hundred  and 
fifty  dollars  ($150),  and  the  necessary  ex- 
penses, such  as  rent  necessary  office  help, 
postage,  advertising  matter,  office  sundries, 
commission,  salary  and  commission  to  sales- 
men and  demonstrators,  etc.,  he  shall  reoait 
with  his  monthly  account  the  cash  balance 
to  said  first  party  at  its  offices  In  the  city 
of  Detroit  When  such  remittance  is  re- 
ceived, the  party  of  the  first  part  will  then 
replace  all  the  stock  sold  during  the  previous 
month  by  the  party  of  the  second  part,  as 
herein  provided,  without  additional  charge 
or  expense  to  said  second  party,  and  In  case 
the  minimum  amount  of  business  required 
to  be  transacted  shall  not  be  sufficient  to 
pay  the  necessary  expenses  of  the  office  as 
herein  provided  for,  the  cost  of  replacing 
stock,  etc.,  such  deficiency  shall  be  made 
good  by  said  first  party  at  the  end  of  each 
month. 

"(7)  It  Is  further  mutually  agreed  by  botb 
parties  hereto  that  the  said  second  party 
shall  have  the  right  to  renew  this  contract 
at  its  expiration,  it  being  understood  by 
both  parties  that  the  expenses  Incident  to 
the  opening  of  this  office  constitute  the  ne- 
cessity of  a  permanent  arrangement 

"In  witness  thereof,  the  parties  of  this 
contract  have  hereunto  set  their  hands  and 
seals  In  duplicate  the  day  and  year  first 
above  written. 

"The  Elysian  Mfg.  Co., 

"Per  O.  R.  Cook.  [Seal.] 
"J.  W.  Ward.  [Seal.] 

"Received  of  J.  W.  Ward,  one  thousand 
dollars  ($1,000)  in  payment  for  stock  as  per 
above  contract  The  Elysian  Mfg.  Co., 

"Per  C.   R.  Cook." 

Plaintiff  returned  to  his  tiome  In  Iowa,  and 
soon  after,  by  appointment,  met  the  ac- 
credited representative  of  defendant,  who  by 
his  written  instructions  was  authorised  to 
open  the  office  for  plaintiff  and  thoroughly 


Digitized  by  VjOOQ  l€ 


MldtU 


WARD  T.  OOOK. 


789 


Instrnct  him  In  all  the  details  of  the  bnsl- 
neas.  The  only  evidence  as  to  these  Instruc- 
tions la  the  testimony  of  plaintiff.  The 
agent,  Mr.  Dovd,  °was  not  called  as  a  wit- 
ness. Plaintiff  says  all  the  Instructions  he 
received  were  given  bfan  at  an  Interview  at 
a  hotel  of  about  45  or  50  minutes,  and  con- 
sisted In  the  agent  producing  and  opening  a 
few  samples,  which  he  had,  and  reciting 
what  the  *^bo<^et"  said  about  them.  He  In- 
structed him  to  Insert  "blind  advertisements" 
In  three  newspapers  In  Dea  Moines  for  can- 
vassers; to  confine  his  bookke^ing  to  two 
small  books,  costing  from  35  to  60  cents,  and 
afterwards  to  use  a  complete  set  of  books, 
which  defendant  would  forward,  and  which 
never  came.  The  next  day,  Mr.  Dowd  In 
this  dty  of  from  60,000  to  70,000  rented  an 
office  for  $8.33  a  month,  purchased  second- 
hand furniture  for  the  same,  worth  $17.25, 
and  purchased  stationery  to  the  amount  of 
$1.55,  which  constituted  the  equipment  of 
the  office. 

Just  before  leaving  he  presented  the  fol- 
lowing typewritten  receipt  for  plaintiff  to 
sign,  which  receipt  was  already  prepared  ex- 
cept the  date: 

"Des  Moines,  Iowa,  October  25,  1905. 

"Gentlemen:  We  have  opened  the  office 
to-day — also  stock  which  has  arrived.  The 
following  expenses  have  been  paid  out  by 
your  representative: 

Bent $10  00 

Fnmiture  17  25 

Drayage 1  00 

Stationery 1  55 

$29  80 

"Tour  representative  has  fitted  up  my  of- 
fice in  a  satisfactory  manner  and  Instructed 
me  thoroughly  In  the  details  of  the  business. 
Ton  have  fully  complied  with  your  contract 
to  date,  and  I  feel  well  qualified  to  go  ahead. 
Ton  can  rest  assured  of  receiving  my  hearty 
co-operation  at  all  times.  Very  respectfully 
yours,  J.  W.  Ward. 

"Room  526,  Good  Block." 

Plaintiff  says  that  he  had  objected  to  the 
kind  of  furniture  provided,  and  the  stock 
had  not  yet  arrived,  of  which  he  had  noti- 
fied defendant  by  letter  the  day  previous. 
The  agent  stated  he  was  required  to  have  a 
receipt  for  money  exi)ended,  and  plaintiff 
signed  the  statement  He  followed  the  in- 
structions given  him  and  wrote  for  further 
instructions,  and  received  reply  that  there 
were  no  personal  instructions.  The  goods 
had  not  been  consigned  to  him,  but  to  "R. 
H.  Gaines,"  a  person  unknown  to  him.  He 
wrote  several  letters  to  defendant  to  trace 
the  goods,  and  received  the  shipping  bill  to 
the  above  consignee,  and  found  the  goods 
on  November  9,  1S06.  Plaintiff  could  get 
bnt  few  canvassers  from  the  advertising 
recommended  by  the  agent  He  testifies 
that  he  became  suspicions  of  the  representa- 
tions made  to  him  by  defendant  that  his 
concern  waa  the  largest  of  its  kind  from  the 


unattractive  appearance  of  the  packages, 
and  also  as  to  the  quality  of  the  goods,  and 
upon  this  consulted  a  chemist  He  wrote 
many  letters  to  defendant  reporting  what 
he  was  doing  as  to  canvassers  and  the  busi- 
ness generally.  On  November  24,  1905,  plain- 
tiff sent  defendant  his  monthly  statement 
with  a  letter.  This  was  replied  to  by  de- 
fendant November  28th,  calling  his  attention 
to  paragraph  5  of  the  contract  which  fixes 
a  sale  of  not  less  than  $500  a  month  as  the 
minimum  amount  of  business  necessary  to 
constitute  the  fulfillment  of  the  contract 
His  letter  and  this  statement  are  not  in  the 
record.  He  consulted  an  attorney,  and  pre- 
sented for  his  examination  the  contract 
with  defendant  and  all  the  correspondence, 
and  Instructed  him  to  rescind  the  contract 
This  he  did  by  letter  to  defendant  Decem- 
ber 14,  1903.  Plaintiff  made  a  final  state- 
ment, duly  Itemized,  of  all  expenses  incurred 
in  the  business,  goods  sold,  goods  received, 
and  goods  in  storage,  as  follows:  Expenses, 
$103.01^  goods  sold,  $82.51;  goods  received, 
$1,002.12;  goods  on  hand  in  storage,  $918.30. 
Defendant  refused  to  recognize  the  rescis- 
sion of  the  contract,  and  suit  was  brought 
The  record  presented  to  us  upon  a  review  of 
this  case,  which  Is  brought  to  tills  court 
by  defendant,  is  voluminous. 

It  will  be  proper  first  to  refer  briefiy  to 
the  pleadings.  There  are  three  counts  to 
plaintiff's  declaration  to  which  defendant 
pleaded  the  genera]  issue.  It  is  urged  by 
defendant  that  the  first  count  is  Inconsist- 
ent with  the  second  and  third  counts  In  that 
the  first  Is  founded  upon  a  breach  of  con- 
tract and  the  second  ahd  third  upon  fraud,  . 
and  that  the  court  erred  in  not  requiring 
plaintiff  to  elect  upon  which  theory  he 
would  proceed,  and  cites  Haas  v.  Malto- 
Grape  Co.,  148  Mich.  359,  111  N.  W.  1069. 
We  think  that  the  cases  are  distinguishable, 
although  the  contracts  involved  are  Identical. 
In  the  case  at  bar  the  first  count  is  found- 
ed upon  a  rescission  of  the  contract  tender 
of  the  goods,  and  a  demand  for  $1,000  paid 
by  plaintiff,  on  account  of  the  refusal  of  de- 
fendant pursuant  to  the  contract  to  In- 
struct the  plaintiff  sufficiently  In  the  details 
of  handling  the  business,  thereby  preventing 
the  fulfillment  by  plaintiff. 

In  the  case  cited  the  suit  was  brought  up- 
on the  contract  for  the  breach  thereof,  there- 
by affirming  the  contract  The  second  and 
third  counts  were  also  founded  upon  a  rescis- 
sion of  the  contract  on  account  of  false 
representations  as  to  the  quality  of  the 
goods.  In  neither  of  these  counts  Is  there 
an  affirmance  of  the  contract  and  a  recov- 
ery sought  upon  defendant's  promises.  The 
only  distinction  t>etween  the  counts  Is  the 
grounds  for  the  rescission.  That  there  was 
a  rescission  of  the  contract  on  the  part  of 
the  plaintiff  is  not  disputed. 

The  court  was  not  in  error  In  refusing  to 
require  plaintiff  to  elect  upon  wbidi  count 
he  would  ask  for' a  recovery.    Under  the  first 


Digitized  by  VjOOQ  IC 


790 


122  NORTHWESTERN  REPORTER. 


(Mich. 


connt  the  court  allowed  plaintiff  to  introduce 
OTidence  tending  to  prove  one  of  the  four 
grounds  for  rescission  declared  upon,  namely, 
that  defendant  had  not  sufDcIently  instructed 
plaintiff  as  agreed  in  paragraph  2  of  the 
contract,  and  refused  to  do  so.  The  fraudu- 
lent representations  relied  upon,  which  plain- 
tiff claimed  were  made  orally  and  in  writing, 
and  upon  which  the  court  allowed  him  to 
go  to  the  jury,  were:  That  the  defendant 
and  his  agents  fraudulently  represented  to 
blm  that  he  intended  to  establish  a  perma- 
n«it  branch  office  and  distributing  depot  at 
Des  Moines,  Iowa;  that  defendant  fraudu- 
lently represented  that  he  was  the  largest 
ezclusive  manufacturer  of  this  line  of  goods 
In  this  country,  and  that  he  fraudulently  rep- 
resented the  goods  manufactured  by  him  and 
shipped  to  plaintiff  were  equal  in  quality  to 
the  highest  standard  of  such  goods  in  this 
country  or  in  Europe ;  and  that  experience  on 
the  part  of  plaintiff  was  unnecessary. 

Evidence  upon  each  of  these  propositions 
relied  upon  in  his  declaration  was  offered 
9)7  him  to  establish  his  case,  and  was  receiv- 
«d  by  the  court.  Defendant  argues  at  length 
that  the  declaration  was  not  sufficiently 
broad  to  warrant  the  court  In  permitting 
much  of  this  evidence  to  be  received,  and 
that  error  was  committed  in  so  doing.  All 
of  the  evidence  objected  to  was  material  to 
the  issue,  and,  in  our  opinion,  the  declara- 
tion was  sufficiently  broad  to  warrant  Its 
admission. 

1.  The  errors  assigned  by  defendant  in  his 
first  group  of  10  as  classified  by  him  relate 
to  the  admission  of  letters  which  passed  be- 
tween these  parties;  the  conversation  with 
McOuire,  who  furnished  a  copy  of  the  "book- 
let," describing  the  goods  and  their  quality; 
and  the  answer  of  a  question  as  to  whether 
McGuire  Invited  him  to  test  any  samples. 
These  letters  were  material.  They  all  of 
them  contained  inquiries  on  the  part  of  plain- 
tiff, and  answers  and  representations  on  the 
part  of  defendant,-  which  tended  to  establish 
plaintiff's  claim  of  defendant's  representa- 
tions as  to  the  quality  of  his  goods,  the  mag- 
nitude of  his  production,  and  his  statement 
of  intention  to  establish  a  permanent  branch 
and  distributing  depot  These  were  express 
statements,  some  of  them  in  answer  to  direct 
Inquiries  of  plaintiff,  which  plaintiff  claimed 
were  false  and  by  which  he  was  induced  to 
enter  into  the  contract  JlcGuire  represent- 
ed defendant  and  the  "booklet"  he  furnished 
was  a  copy  of  the  same  one  defendant  had 
previously  sent  to  plaintiff.  The  letters  also 
show  the  history  of  the  transaction  leading 
up  to .  the  contract,  and  that  the  advertise- 
ment which  plaintiff  claims  contained  a 
false  statement  was  the  inducement  to  the 
correspondence.  l%at  no  tests  were  invited 
by  McGuire  might  be  considered  as  bearing 
upon  the  good  faith  of  representations  of 
quality  furnished  by  him.  It  would  be  the 
only  way  that  the  quality  of  perfumes  and 


toilet  goods  could  be  ascertained.     It  was 
not  error  to  admit  this  proof  in  the  case. 

2.  Twenty-flve  assignments  of  error  upon 
exceptions  to  the  "admission  in  evidence  of 
letters,  documents,  evidence  of  acts  of  plain- 
tiff, and  other  testimony  relative  to  transac- 
tions between  the  parties,  etc.,  all  subsequent 
to  signing  the  contract,"  are  urged  as  errors 
prejudicial  to  defendant.  Such  of  these  as  are 
claimed  erroneous,  and  the  evidence  inadmis- 
sible, because  of  the  claimed  Inconsistencies 
between  the  counts  in  the  declaration,  need  no 
discussion  for  the  reason  that  our  construc- 
tion of  the  declaration,  herein  given,  has  dis- 
posed of  the  objection.  His  testimony  and  let- 
ters as  to  the  canvassers  employed  by  him,  the 
difficulties  in  procuring  them,  and  results, 
were  material  upon  the  question  of  defend- 
ant's having  given  sufficient  instruction  to  him, 
and  representations  as  to  the  necessity  of  no 
experience  before  undertaking  this  work. 
The  letters  from  the  Iowa  and  Midiigan  at- 
torneys Vere  admissible  to  show  rescission. 
The  last  one  was  an  affirmance  of  the  first 
and  a  more  explicit  tender  of  goods.  A  let- 
ter notifying  defendant  that  his  agent  Dowd 
had  been  there  and  of  the  nonarrival  of  the 
stock,  also  relative  to  Insurance  on  the  stock 
and  the  answer  thereto,  were  properly  admit- 
ted. Errors  are  assigned  upon  the  admission 
of  three  exhibits,  which  were  afterwards 
stricken  out.  Such  action  cured  the  error, 
if  any  was  committed.  Short  extracts  from 
them  were  afterwards  allowed  only  as  bear- 
ing upon  the  matter  of  payment  of  salary. 
Two  letters  or  parts  of  them  were  read  in 
evidence,  one  written  by  plaintiff  to  defend- 
ant, and  the  other  his  answer.  i?hey  related 
to  the  understanding  of  the  parties  relative 
to  expenses  of  the  business  and  salary. 
Each  states  his  view.  If  error  was  commit- 
ted, it  was  harmless  in  view  of  the  fact  that 
the  court  took  from  the  jury  later  all  consid- 
eration of  the  matter  of  expenses  and  salary. 
Ward's  testimony,  describing  the  office  as 
furnished  and  fitted  by  defendant,  was  admis- 
sible as  bearing  upon  intention  to  establish 
a  permanent  branch  distributing  depot  How 
the  goods  were  packed  and  displayed  also. 

3.  The  court  allowed  in  evidence  a  sample 
case,  furnished  by  defendant,  containing  50 
samples  of  products  of  defendant,  which 
were  the  basis  of  tests  made  by  plaintiff  of 
the  quality  of  these  goods.  Defendant  object- 
ed tiecause  not  sufficiently  identified.  It  ap- 
pears that  this  was  an  old  sample  case 
and  was  not  locked  when  received  by  plain- 
tiff with  its  contents.  The  evidence  offered 
relative  to  its  identity  was  proper  to  submit 
to  the  jury  to  determine  identity. 

4.  Under  this  subdivision  the  only  objec- 
tion, for  which  a  reason  la  given,  was  to  an 
inquiry  as  to  whether  or  not  plaintiff  became 
suspicious  as  to  the  statement  of  defendant 
about  conducting  the  largest  exclusive  manu- 
factory of  these  goods.  It  was  dearly  admis- 
sible. 


Digitized  by 


Google 


MlclL) 


WARD  ▼.  COOK. 


791 


5.  Errors  are  assigned  upon  evidence  ad- 
mitted relative  to  otlier  similar  cases,  \?lilcli 
in  tlie  briefs  are  called  collaterai  cases.  Tlie 
record  shows  that  there  were  80  persons 
attracted  by  this  adrertisement,  who  enter- 
ed into  contracts  identical  with  the  one 
plaintiff  signed.  Four  of  these  agents  were 
produced  as-  witnesses  by  plaintiff  and  allow- 
ed to  testify.  This  testimony  was  offered 
and  admitted  to  show  similar  transactions 
by  defendant  with  other  parties  as  bearing 
upon  the  fraudulent  Intent  of  defendant  The 
testimony  of  these  four  witnesses  shows  that 
that  same  adyertisement  was  answered;  the 
same  preliminary  letters  and  later  corre- 
spondence was  had;  the  same  contract  was 
signed,  and  $1,000  cash  was  paid  by  each  aft- 
er coming  to  Detroit,  and  being  met  in  the 
same  way  and  told  the  same  story,  which 
was  relied  upon ;  the  circumstances  of  fitting 
out  the  office;  giving  Instructions;  securing 
the  prepared  written  receipt;  the  sudden  de- 
parture of  the  representative ;  the  late  arriv- 
al of  the  goods;  the  old  sample  case  and 
contents ;  and  the  representations  made  were 
In  each  case  practically  identical  with  those 
In  plaintiff's  case.  This  evidence  was  ad- 
missible upon  the  ground  claimed.  Beebe  v. 
Knapp,  28  Mich.  63;  Stubly  v.  Beachboard, 
68  Mich.  401,  36  N.  W.  192,  and  cases  cited. 
It  is  urged  that  the  court  allowed  too  great 
latitude  in  the  examination  of  these  witness- 
es, permitting  them  to  give  their  understand- 
ing of  the  contract.  It  was  necessary  and 
proper  to  go  Into  the  entire  history  of  each 
of  these  cases.  The  allowance  of  this  evi- 
dence objected  to.  In  view  of  the  exact  and 
explicit  charge  upon  this  line  of  proof,  was 
not  prejudicial  to  defendant.  The  fact  that 
the  other  contracts  were  made,  as  stated  by 
these  witnesses,  was  not  disputed,  nor  was 
it  denied  that  the  letters  sent  before  and 
after  the  contracts  were  executed  were  sent 
by  defendant. 

6.  On  the  offer  by  plaintiff  "to  show  that 
sales  of  Qierchandlse,  such  as  that  manufac- 
tured by  the  defendant,  could  not  be  made 
without  experience,"  the  testimony  was  ex- 
cluded on  the  objection  of  defendant  The 
defendant  was  the  next  witness  called,  and 
on  his  direct  examination,  after  testifying 
that  he  h^d  talked  with  plaintiff  about  ttie 
matter  of  the  statement  in  the  advertisement, 
and  also  testified  to  his  own  lack  of  experi- 
ence, was  asked :  "Q.  As  a  matter  of  fact, 
in  order  to  sell  your  goods,  does  a  man  have 
to  have  any  experience  In  selling  that  line 
before?"  Plaintiff  objected  and  called  at- 
tention to  the  above  ruling  of  the  court  upon 
the  same  ground  in  defendant's  favor.  The 
court  sustained  the  objection.  This  was  not 
erroneous.  Defendant  was  simply  required 
by  the  court  to  be  consistent.  Any  other 
course  in  the  trial  of  a  cause  would  lead  to 
great  confusion  and  would  be  disastrous. 

7.  On  cross-examination  of  defendant,  rela- 
tive to  the  form  of  this  contract,  he  was  ask- 
ed under  objection  where  he  obtained  it,  and 


was  permitted  to  answer.  It  is  claimed  tliat 
in  this  the  court  was  in  error.  From  this 
cross-examination  it  appears  that  in  the  con- 
tract the  words  "it"  and  "its"  were  used  in 
referring  to  defendant  Instead  of  "he"  and 
"his."  He  testified  that  he  did  not  get  the 
contract  from  a  corporation;  that  he  ol)- 
talned  the  idea  from  a  concern  which  rec- 
ommended It  to  him.  He,  however,  insisted 
that  he  wrote  this  contract  specially  for  the 
plaintiff;  that  In  using  these  words  he  re- 
ferred to  himself  and  the  business.  We  think 
the  cross-examination  was  proper  In  this 
case  where  fraud  was  charged.  It  would  be 
a  legitimate  Inference  for  the  Jury  to  draw 
from  tills  testimony  that  the  purpose  of  de- 
fendant was  to  misrepresent  In  using  these 
words  the  character  and  Importance  of  his 
concern. 

8.  Several  errors  are  assigned  upon  testi- 
mony of  plaintiff  permitted  by  the  court  rela- 
tive to  his  reliance  upon  the  representations 
of  defendant  (a)  that  experience  was  unneces- 
sary; (b)  that  the  quality  of  goods  was  the 
highest;  (c)  that  be  proposed  to  establish 
a  permanent  branch  oflSce  at  Des  Moines: 
(d)  that  salary  and  expenses  of  the  office 
would  be  paid  monthly  when  he  entered  into 
the  contract  The  objection  made  that  the 
evidence  was  Immaterial,  irrelevant,  and  in- 
competent, and  not  wltliln  the  allegations  of 
the  declaration.  The  court  indicated  that 
he  would  permit  the  declaration  to  he  amend- 
ed if  necessary.  We  have  already  held  that 
the  declaration  was  sufficient  in  law  to  sus- 
tain a  recovery  in  this  case.  It  follows, 
therefore,  that  this  evidence,  except  that  rel- 
ative to  salary  and  expenses,  was  material 
to  the  issue  and  properly  admitted.  ■  The 
court  in  charging  the  Jury  refused  to  charge 
as  requested  by  plaintiff  as  to  the  represMita- 
tions  as  to  salary  and  expenses,  and  refused 
In  his  general  charge  to  submit  that  question 
to  the  Jury.  This  eliminated  all  of  the  evi- 
dence relative  to  representations  as  to  salary 
and  expenses  from  the  case.  In  our  opinion, 
when  plaintiff  closed  his  case,  he  had  pre- 
sented evidence  sufficient  to  entitle. bjini. to 
have  it  considered  by  the  Jury,  and  it  was 
not  error  to  deny  defendant's  motion  for  an 
Instructed  verdict. 

9.  Many  of  the  assignments  of  error  to  the 
charge  are  upon  the  ground  that  the  court 
did  not  specifically  point  out  to  the  jury  that 
he  withdrew  from  their  consideration  all  evi- 
dence in  the  case  relative  to  the  alleged 
fraudulent  representations  in  regard  to  the 
payment  of  salary  and  expenses.  In  this 
case  defendant  presented  to  the  court  no  re- 
quests to  charge,  and  did  not  call  the  atten- 
tion of  the  court  to  what  he  now  claims  in 
these  assignments  to  be  erroneous  omissions 
to  charge. 

This  charge  of  necessity,  was  very  long, 
and  the  court  clearly  and  distinctly  stated 
to  the  Jury  the  questions  which  might  be 
considered  by  It.  As  already  stated,  the  mat- 
ter of  these  representations  was  not  submit- 


Digitized  by  VjOOQ  l€ 


792 


122  NORTHWESTERN  BEPORTER. 


(MldL 


ted  to  the  Jury.  Tbe  rulings  of  the  conrt, 
during  the  whole  of  the  trial,  distinctly  show 
that  was  the  view  he  took  of  the  qaestlon, 
except,  In  one  instance,  where  one  question 
was  allowed  to  stand  evidently  by  some 
oversight,  and  which  we  have  said  was  cured 
by  the  charge.  We  think  the  charge  was  suf- 
ficiently explicit  upon  the  question  not  to 
mislead  the  Jury.  Defendant's  duty  to  the 
court  was  to  call  its  attention  by  written 
requests  or  orally  to  this  matter.  The  court 
is  not  inclined  to  extend  the  scope  of  tbe 
statute  allowing  assignments  of  error  to  the 
charge  after  the  trial.  Errors  are  assigned 
to  parts  of  the  charge  as  given. 

(1)  Relative  to  the  advertisement  the  court 
said  that  If  they  could  find  "that  the  de- 
fendant meant  by  the  use  of  that  language 
that  no  experience  In  the  handling  of  these 
goods  as  a  general  sales  agent  was  neces- 
sary, then  I  say  to  you  that  that  language 
may  be  the  subject  of  a  fraudulent  repre- 
sentation." Turning  back  to  this  advertise- 
ment it  will  be  seen  that  it  contains  tbe 
words  "experience  unnecessary."  •  This  por- 
tion of  the  charge  is  claimed  to  be  error  be- 
cause the  court  failed  to  define  the  word 
"necessary."  This  was  language  adopted  by 
defendant  In  what  plaintiff  claims  was  part 
of  a  fraudulent  scheme  to  relieve  applicants 
of  (1,000.  We  have  before  us  In  this  record 
the  fully  developed  scheme,  and  this  adver- 
tisement was  in  fact  for  general  sales  agents 
In  this  defendant's  line.  It  may  now  be  read 
and  considered  in  the  light  of  the  whole  case 
made  by  plaintiff.  There  is  no  denial  that 
this  was  the  business,  and  these  were  the 
agents  sought  by  defendant  In  his  advertis- 
ing invitation  to  applicants  having  "$1,000, 
and  good  references,"  to  undertake  to  man- 
age a  "branch  office  and  distributing  depot 
for  large  manufacturer."  The  court  properly 
Instructed  the  Jury  upon  this  advertisement 

(2)  Defendant  claims  that  the  court  erred 
in  charging  that  it  was  not  necessary  for 
plalntlff'to  prove  all  of  these  fraudulent  rep- 
resentations In  order  to  recover,  but  that,  If 
they  should  find  any  one  a  fraudulent  repre- 
sentation, plaintiff  was  entitled  to  recover, 
was  prejudicial  and  mlsleiadlng.  It  is  not 
claimed  that  this  does  not  state  the  law,  but 
that  it  does  not  occupy  the  proper  place  in 
tbe  charge.    The  objection  is  without  merit 

(3)  The  court  charged  the  Jury  at  great 
length  upon  that  feature  of  the  case  which 
related  to  instructions  given  to  plaintiff,  by 
defendant  under  the  contract  In  one  clause 
of  tbe  contract  defendant  agreed  to  instruct 
plaintiff  in  the  details  of  handling  the  busi- 
ness until  he  was  sufficiently  instructed  in 
the  estimation  of  defendant.  The  court, 
among  other  things,  said  that  defendant  must 
deal  fairly  and  Justly  with  plaintiff;  that 
the  clause  must  be  construed  reasonably; 
that  defendant  was  called  upon  under  tbe 
contract  to  do  what  he  in  good  faith  thought 
was  reasonably  necessary  in  instructing  plain- 
tiff in  tbe  duties  of  a  general  sales  agent 


After  saying  this,  and  much  more  of  like 
effect,  he  finished  by  giving  the  paragraph 
excepted  to:  "If  you  shall  find,  then,  from 
the  evidence,  that  the  defendant  knew  at  tbe 
time  the  plaintiff  rescinded  the  contract  that 
the  plaintiff  was  not  sufficiently  instructed  in 
the  details  of  handling  the  business,  then  de- 
fendant broke  his  contract,"  and  this  breach 
was  such  as  authorized  the  rescission,  and, 
if  they  so  found,  plaintiff  was  entitled  to  re- 
cover. The  record  contains  much  evidence 
upon  this  subject,  tending  to  show  defendant 
did  not  sufficiently  instruct  plaintiff.  It  ap- 
pears that  plaintiff  had  no  experience  In  this 
line  of  business ;  that  all  the  instructions  be 
received  from  defendant  were  meager;  that 
he  wrote  defendant  nearly  every  day,  and 
In  many  of  the  letters  be  is  asking  for  in- 
structions and  information.  The  answers 
were  before  the  Jury,  as  also  one  in  whicb 
defendant  practically  states  that  plaintiff 
needs  no  personal  instructions.  The  court 
was  correct  in  saying  that  this  pledge  in 
the  contract  to  instruct  meant  a  reasonable 
and  good  faith  instruction  by  defendant  The 
evidence  made  this  a  question  of  fact  for 
the  Jury. 

10.  There  was  testimony  in  the  case  rela- 
tive to  damages  sustained  by  plaintiff  by 
reason  of  loss  of  other  employment  to  en- 
title its  submission  to  tbe  Jury. 

11,  Special  questions  were  submitted  to  the 
Jury  on  the  part  of  the  plaintiff  as  follows: 

(1)  Did  plaintiff  when  be  signed  the  con- 
tract rely  on  the  statement  made  to  him  by 
defendant.  Cook,  that  defendant.  Cook,  In- 
tended to  establish  a  permanent  branch  oflBce 
and  distributing  depot  at  Des  Molnea,  Iowa? 
The  Jury  answered,  "Yes." 

(2)  Did  defendant.  Cook,  on  October  10, 
1905,  intend  to  establish  a  permanent  branch 
office  and  distributing  depot  at  Des  Moines, 
Iowa?    The  Jury  answered,  "No." 

(8)  Did  defendant.  Cook,  instruct  or  cause 
plaintiff.  Ward,  to  be  Instructed  In  the  de- 
tails of  handling  the  business,  ufitll  plain- 
tiff. Ward,  was  sufficiently  Instructed  in  tbe 
estimation  of  defendant.  Cook?  The  Jury 
answered,  "No." 

Defendant  argues  that  they  are  not  ques- 
tions which  control  the  issue.  We  disagree 
with  counsel  for  defendant,  and  refer  to  tbe 
questions  as  conclusive  upon  the  propositloii, 
and  cite  the  authority  upon  which  he  re- 
lies. Cousins  T.  Railway,  86  Mich.,  at  page 
389,  66  N.  W.  14,  et  seq.  These  qnesUoDS 
do  not  ask  for  findings  upon  facta  not  vital 
to  the  case,  but  findings  necessarily  concIn> 
sive  of  plaintiff's  right  to  recover. 

It  follows  as  a  necessary  condnaion,  from 
the  view  we  take  of  this  case,  that  the  mo- 
tion for  a  new  trial  by  defendant  was  prop- 
erly denied  by  the  court  The  case  was  sub- 
mitted to  the  Jury  by  the  court  in  his  diarge 
by  a  clear  and  correct  statement  of  tlie  law, 
as  applied  to  the  facts  of  the  case.  The 
Jury  under  this  charge  found  a  verdict  in 


Digitized  by  VjOOQ  l€ 


Mich.) 


BELHEB  y.  BOYNE  CITY  TANNING  CO. 


793 


fayor  of  plaintiff.    Tbls,  In  onr  eetimation, 
vaa  amply  Justifled  by  the  evldencft 
The  judgment  1b  affirmed. 


BELMEK  T.  BOYND  CITY  TANNINO  CO. 
(Supreme  Court  ot  Michigan.  Oct.  19,  1900.) 
Appeal  and  Ebbob  (S  345*)— Writ  of  Ebbo»- 

TmE  FOB  Taking— Extension  of  Time. 
Judgment  waa  entered  for  plaintiff  August 
21,  1908,  and  ttie  motion  for  new  trial  waa  no- 
ticed for  hearing  December  4Ui.  but  the  hear- 
ing wa8  continued  ontil  April  24,  1909,  when  it 
was  argued,  and  an  opinion  denying  the  motion 
was  filed  August  16,  1909,  and  mailed  to  defend- 
ant's connaeL  bat,  owing  to  their  necessary  ab- 
sence from  their  oflSce,  aid  not  reach  them  un- 
til Angast  23d.  Defendant's  counsel  did  not  sue 
out  a  writ  of  error  until  August  28,  1009,  hav- 
ing filed  the  motion  for  new  trial  in  good  faith 
and  relied  upon  it  being  granted.  Oomp,  Laws 
1897,  i  10,492,  requires  wriu  of  error  to  be 
brought  within  one  year  after  rendition  of  judg- 
ment, provided  that  the  time  may  be  extended 
by  the  Supreme  Court  under  proper  circumstan- 
ces. Beld,  that  while  the  pendency  of  a  motion 
for  new  trial  doea  not  extend  the  time  for  issu- 
ing a  writ  of  error,  defendant  should  not  lose 
his  right  to  a  writ  of  error  by  the  failure  of  his 
counsel  to  sue  out  the  writ,  and  the  time  for 
suing  it  out  would  be  extended. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  §  1895 ;    Dec.  Dig.  l  345.*] 

Action  by  Prederlclt  Belmer,  by  his  next 
friend,  Frank  Belmer,  against  the  Boyne 
City  Tanning  Company.  Motion  by  plaintiff 
to  dismiss  defendant's  writ  of  error,  and  mo- 
tion by  defendant  to  extend  the  time  tor  Is- 
suing the  writ.  Motion  to  dismiss  denied; 
and  motion  to  extend  time  granted. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  OSTBANDEB,  MOORB, 
McALVAY,  and  BROOKE,  JJ. 

J.  M.  Harris,  for  appellant  George  B. 
Nichols,  for  appellee. 

PER  CURIAM.  Two  motions  are  before 
us  in  this  case;  one  made  by  the  appellee  to 
dismiss  the  writ  of  error  because  It  was  is- 
sued more  than  one  year  after  the  date  of 
the  Judgment,  and  one  made  by  the  appel- 
lant to  extend  the  time  for  issuing  writ  of 
error.  The  statute  under  which -both  mo- 
tions are  made  is  as  follows:  Sec.  10,492, 
Comp.  Laws  1897:  "All  writs  of  error  upon 
any  judgment  or  final  determination  render- 
ed in  any  cause  In  any  court  of  law  and  of 
record  in  this  state  shall  be  brought  within 
one  year  after  the  rendering  of  such  Judg- 
ment or  final  determination  made  and  not 
after  except  in  cases  specified  In  the  next 
two  sections.  Provided,  the  time  In  which 
writs  of  error  may  be  taken  out  may  be  ex- 
tended not  exceeding  six  months  by  the  Su- 
preme Court  or  by  one  of  the  Supreme  Court 
Justices  at  chambers,  when  any  party  has 
been  prevented  from  taking  out  the  same  by 
circumstances  not  under  his  control.  Such 
extension  shall  only  be  made  on  special  mo- 


tion, and  after  a  proper  showing."  The 
facts  upon  which  appellant  relies  are  briefly 
as  follows:  Plaintiff  obtained  judgment  for 
$6,000  in  the  circuit  court  for  the  county  of 
Charlevoix,  August  21,  1908.  A  stay  bond 
was  filed.  Within  20  days  a  transcript  or- 
dered, and  a  motion  for  new  trial  was  made 
and  noticed  for  hearing  on  December  4,  1906. 
The  hearing  on  the  motion  was  continued, 
from  time  to  time,  until  April  24, 1009,  when> 
it  was  argued  and  taken  under  advisement 
by  the  court  The  motion  was  denied  by  the 
court  and  an  opinion  filed  August  16,  1909. 
A  writ  of  error  was  sued  out  of  this  court 
August  28,  1909,  returnable  September  15, 
1909.  On  filing  bis  opinion  at  Charlevoix  the 
circuit  Judge  mailed  a  copy  thereof  to  coun- 
sel for  defendant  at  Boyne  C^ty,  Mich.  The 
petition  shows  that  Mr.  Knowles,  of  the 
firm  of  Knowles  &  Converse  and  Mr.  Har- 
ris (of  counsel),  were  at  the  time  said  notice 
was  mailed  absent  from  Boyne  City,  and  in 
actual  attendance  ui>on  a  regular  session  of 
the  court  at  Charlevoix,  and  that  Mr.  Con- 
Terse  was  necessarily  absent  from  his  of- 
fice at  Boyne  City  attending  the  deathbed 
and  funeral  of  a  niece.  Under  these  cir- 
cumstances the  notice  of  the  denial  of  the 
motion  did  not  actually  reach  Knowles  & 
Converse  until  Augrust  23d,  and  did  not  reach 
Mr.  Harris  until  the  25th. 

The  petition  shows  that  the  motion  for 
new  trial  was  made  in  good  faith,  and  that 
defendant's  counsel  believed  It  would  be 
granted.  It  further  shows  that  petitioner 
had  employed  and  given  full  charge  of  the 
trial  and  proceedings  to  Messrs.  Knowles  & 
Converse  as  its  attorneys,  and  J.  M.  Harris, 
of  counsel.  It  Is  apparent  from  the  facts 
stated  in  the  petition  that  the  petitioner  it- 
self is  without  fault  In  the  premises,  and 
that  the  failure  to  sue  out  a  writ  of  error 
within  the  statutory  period  is  attributed 
solely  to  the  neglect  ot  Its  counsel,  or  at  any 
rate,  to  the  tact  that  they  without  warrant 
relied  upon  their  Judgment  that  the  circuit 
court  would  determine  the  motion  for  a 
new  trial  in  favor  of  the  appellant  While 
the  fact  that  a  motion  for 'a  new  trial  is 
pending  does  not  extend  the  time  during 
which  a  writ  of  error  may  Issue  (see  Hill 
T.  Hill,  114  Mich.  599,  72  N.  W.  697),  we 
are  of  opinion  that  appellant  in  Its  showing 
has  fairly  brought  itself  within  the  rule  laid 
down  in  Merriman  ▼.  Peck,  96  Mich.  003,  55 
N.  W.  1021,  where  this  court  said:  "The 
showing  made  before  the  respondent  was 
sufllcient  to  excuse  the  omission  of  Mr.  Mer- 
riman, unless  it  be  held  that  he  Is  charge- 
able with  the  default  of  his  attorney;  but 
we  think  that  where  an  appellant  employs 
an  attorney  in  regular  standing,  and  does 
all  that  he  is  required  by  the  advice  of  his 
attorney  to  do  to  perfect  an  appeal,  he  ought 
not  to  lose  his  right  to  an  appeal,  where 
Justice    requires    a    revision    of    the   case. 


«Vwolb*r  I 


I  SM  same  tople  and  section  NT7MBER  in  Dee.  *  Am.  Dtgi.  1907  to  date,  *  Reporter  ladaoras 


Digitized  by  LjOOQ  l€ 


794 


122  NORTHWESTERN  REPORTER. 


(lliim. 


through  the  neglect  or  oversight  of  the  at- 
torney"— citing  cases. 

The  motion  to  dismiss  is  denied,  with 
costs  to  the  mover.  The  motion  to  extend 
the  time  three  months  is  granted,  with  costs 
against  the  mover. 


ANDERSON  v.  PITTSBURG  COAL,  CO.  et  «1. 
(Supreme  Court  of  Minnesota.  July  23.  1909.) 
Master  and  Servant  (gS  185,  190,  285»)— 
Courts  (81  89,  95*)-Damaoe8  (§  132*)— In- 
juries TO  Servant— Questions  for  jubt— 
PBOxntATK  Cause— "Fellow  Servants"— 
Decisions  as  Precedents— Delegation  or 
Duty— Review — K.xcessive  Dauaqes. 

Plaintiff,  engaged  as  a  coal  heaver  in  un- 
loading the  hold  of  defendant's  boat,  waa  knock- 
ed down  by  a  coal  bucket  operated  by  a  crane, 
which  had  acquired  "too  much  awing."  The 
hatch  tender  signaled  the  holster  to  stop  it  and 
drop  it  down.  He  did  not  warn  plaintjff.  as 
his  duty  and  custom  required.  The  holster 
dropped  the  bucket.  It  struck  plaintiff,  and 
produced  the  injuries  for  which  recovery  is 
sought.    It  is  held: 

(1)  Whether  the  proximate  cause  of  the  in- 
Jnrjr  was  the  droppmg  of  the  clam  shell  upon 
plamtiff  or  the  previous  swinging  of  the  bucket 
was  a  question  of  fact  for  the  jury. 

(2)  The  failure  of  the  hatch  tender  to  give 
plaintiff  the  customary  warning  before  the  buck- 
et waa  lowered  was  the  negligence  of  a  vice 
principal,  and  not  of  a  fellow  servant. 

(a)  The  value  of  a  particular  decision  as  a 
precedent  Is  to  be  determined  by  reference,  not 
only  to  identity  of  its  facts  with  the  facta  in 
issue,  but  also  to  identity  of  the  principle  upon 
which  that  decision  is  based  with  the  pertinent 
rules  established  in  the  jurisdiction  in  whch 
the  controversy  is  pending.  Decisions  of  other 
courts  that  under  given  circumstances  a  serv- 
ant is  a  fellow  servant  of  another  are  not  per- 
suasive in  this  court,  unless  the  criterion  by 
which  the  relatlonhip  Is  determined  is  the  same 
as  in  this  jurisdiction,  namely,  that  a  fellow 
servant  is  one  to  whom  the  master  has  not 
intrusted  the  performance  of  some  absolute  non- 
assignable duty.  Portance  v.  L.  H.  Co.,  101 
Wis.  574,  77  N.  W.  875,  70  Am.  St  Kep.  932 ; 
Ocean  8.  S.  Co.  v.  Cheeney,  86  Ga.  278.  12  S. 
B.  351 ;  Id.,  92  Ga.  726,  19  S.  B.  33,  44  Am. 
St.  Rep.  113;  Hermann  v.  Mill  Co.,  71  Fed. 
853.  distinguished. 

(b)  Subject  to  restrictions  arising  under  par- 
ticular circumstances,  the  general  rule  is  "that 
the  delegation  to  an  employ^  of  the  duty  of  tak- 
ing such  measures  as  are  within  the  power  of  the 
master  to  protect  employes  against  danger  while 
at  work  cannot  relieve  the  master  from  liabil- 
ity if  the  employe  to  whom  such  duty  is  im- 
puted does  not  exercise  reasonable  care  in  its 
discharee." 

(c)  While  duty  of  the  master  to  warn  the 
servant  of  impending  danger,  as  distinguished 
from  the  duty  to  instruct  a  youthful  or  inex- 
perienced servant,  may  not  under  all  circum- 
stances be  absolute  and  nonassignable,  the  gen- 
eral rule  is  that,  when  an  employg  is  at  work 
in  a  place  safe  in  itself,  but  which  by  virtue 
of  some  independent  work  done  for  the  master's 
purposes  becomes  dangerous  unless  prior  warn- 
ing of  impending  danger  be  given,  and  when 
the  master  has  required  such  warning  to  be 
given,  or  has  customarily  assumed  to  give  such 
warning  by  an  employ^,  the  person  charged  with 
that  duty  is  a  vice  principal. 

(3)  A  verdict  of  S8,000  for  plaintifTs  in- 
juries, whereby  his  leg  was  shortened  about 
three  inches,  a  curvature  of  the  spine  was  pro- 
duced, and  a  permanent  inability  to  do  hard 


work  resulted,  in  addition  to  other  injuries,  is 
held  not  to  have  been  so  excessive  as  to  justi^ 
a  new  trial. 

(Eld.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  fS  385-421,  449^74:  Dec 
Dig.  8§  185, 190,  285  ;•  Courts,  Cent.  Dig.  iS  311- 
3a ;  Dec.  Dig.  18  89,  95;*  Damages,  Cent. 
Dig.  8f  372-^8!;    Dec.  Dig.  I  182.* 

For  other  definitions,  see  Words  and  Phrases. 
VOL  3,  pp.  2716-2730;    vol.  8,  p.  7662.] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  St  Lonis 
County ;  Wm.  A.  Cant,  Judge. 

Action  by  Gust  Anderson  against  the  Pitts- 
burg Coal  Company  and  others.  Verdict  for 
plaintiff.  From  an  order  denying  its  motion 
for  Judgment  notwithstanding  the  verdict  or 
for  a  new  trial,  the  Coal  CJompany  appeals. 
Affirmed. 

B.  0.  Kennedy,  for  appellant  John  Jois- 
wold,  Jr.,  for  respondent 

JAGOARD,  J.  Plaintlfl  and  respondent,  a 
coal  heaver,  was  engaged  in  unloading  de- 
fendant's boat,  loaded  with  coal.  Clam  shells, 
or  backets,  four  feet  wide  and  seven  feet 
long  when  closed,  were  lowered  Into  and 
raised  out  of  hatchways  by  means  of  wire 
cables  running  over  sheaves  at  the  end  of 
booms  which  were  projected  over  the  vessel. 
The  boat  being  unloaded  was  provided  with 
an  upper  and  a  middle  deck.  At  the  time  of 
the  accident  here  Involved  the  coal  was  befaig 
taken  from  the  hold.  The  machinery  was 
operated  by  a  man  known  as  a  "holster," 
who  received,  from  a  man  on  deck  known  as 
a  "hatch  tender,"  signals  by  which  his  ac- 
tions were  governed  In,  controlling  the  move- 
ments of  the  clam  shell.  Immediately  be- 
fore the  accident  the  clam  shell  had  been 
lowered  and  was  swung  by  plaintiff  to  a 
place  in  the  hold  of  the  bpat  The  dam 
shell  was  closed  under  the  coal.  Plaintift 
was  steadying  it  The  clam  shell  caught  a 
part  of  the  floor  of  the  boat  Additional 
power  was  put  on  the  hoisting  apparatus. 
When  the  bucket  was  raised  It  carried  along 
a  part  of  a  board.  It  swung  against  plaintiff, 
and  knocked  him  down  on  the  coal  In  the 
hold,  but  did  not  Injure  him.  The  bucket  was 
"swinging  too  far  away.  It  had  acquired  too 
much  swing,  so  the  hatch  tender  signaled  the 
holster  to  stop  It,  and  shouted,  "Down  the 
bucket!"  The  holster  dropped  It  on  plain- 
tiff's right  hip  while  he  was  lying  on  the  coal 
and  before  he  could  get  away.  The  hatch 
tender  did  not  give  the  signal  or  warning  re- 
quired by  his  prescribed  duty  and  the  custom 
then  current  The  bucket  was  raised,  when 
some  one  "hollered,"  and  was  swung  over  to 
the  other  side.  It  then  swung  back  to  the 
place  where  plaintiff  was,  and  hit  him  again 
on  his  left  leg  above  the  knee.  The  clam  shell 
lay  on  the  top  of  him  a  minute  or  so,  and 
then  was  moved  to  the  center  of  the  hatch  and 
was  lowered  down.    According  to  the  plain- 


•For  otber  caaei  aee  aam*  topic  and  section  NUMBER  In  Dec.  A  Am.  Digs.  19v7  to  daU,  ft  Repoitar  IndexM 


Digitized  by  VjOOQ  l€ 


Minn.) 


ANDERSON  v.  PITTSBURG  COAL  CO. 


795 


tiff's  testimony  the  batch  tender  conld  hare 
fleen  plaintiff  while  he  was  lying  on  the  coal 
after  haying  been  struck  by  the  clam.  The 
hatch  tender  testified  that  he  looked  at  the 
bolster  when  h^  gave  the  signal  to  lower 
the  backet.  He  did  not  look  down  where  the 
plaintiff  was.  He  had,  however,  seen  the 
plaintiff  take  hold  of  the  clam  when  it  de- 
scended through  the  hatchway  and  push  It 
to  one  side.  The  testimony  as  to  whether  be 
saw  plaintiff  when  the  clam  shell  was  swing- 
ing Is  not  clear.  The  Jury  returned  a  verdict 
of  $8,000.  This  appeal  was  taken  from  the 
order  of  the  trial  court  denying  defendant's 
alternative  motion. 

1.  Whether  the  proximate  cause  of  the  in- 
Jury  was  the  dropping  of  the  clam  shell 
upon  plaintiff  or  the  previous  swinging  of  the 
bu<^et  was  a  question  of  pure  fact.  The  Jury 
was  entitled  to  believe  the  plaintiff's  version. 
Its  finding  for  him  should  not  be  disturbed 
because  of  this  question. 

2.  The  principal  contention  of  defendant 
is  that  under  the  rules  laid  down  by  the  au- 
thorities It  had  performed  its  absolute  duty 
to  plaintiff,  that  the  failure  of  the  hatch- 
man  to  give  warning  was  a  mere  detail  of 
the  work,  and  that  therefore  he  and  plaintiff 
were  fellojv  servants. 

(1)  The  rules  of  law  as  to  how  far  the 
master  may  delegate  his  duty  to  his  servant 
appear  in  a  measure  to  have  been  rather  ren- 
dered uncertain  than  to  have  been  definite- 
ly determined  by  the  mass  of  decision  on 
this  subject.  The  opinion  has  been  frequent- 
ly expressed  as  In  Brabbltts  ▼.  Railway  Co., 
38  Wis.  289-299  (1875):  "It  would  be  mon- 
strous to  allow  [the  master]  to  relieve  him- 
self of  all  liability  for  a  breach  of  duty  [to 
the  servant]  by  simply  charging  one  of  [his] 
inferior  officers  or  servants  with  the  per- 
formance." This  principle  has  been  reiterat- 
ed times  without  number  by  the  Wisconsin 
court  and  by  almost  every  court  In  the  coun- 
try. An  especially  clear  statement  of  the 
master's  duty  to  protect  In  fact— to  actually 
do  what  circumstances  require,  and  not  mere- 
ly to  employ  another  to  do  for  him — will  be 
found  in  Toledo  Co.  ▼.  Bosch,  101  Fed.  530, 
41  C.  C.  A.  482.  And  see  2  Labatt,  §f  552, 
653,  556.  To  universally  apply  this  principle 
to  the  master's  duty  concerning  a  safe  place 
would  necessarily  Impose  liability  on  the 
master  In  the  great  majority  of  cases,  and,  it 
has  been  thought,  would  practically  eliminate 
the  doctrine  of  fellow  servant.  Courts  have 
properly  refused  to  go  to  this  extent.  In  con- 
sequence such  application  has  been  restricted, 
usually  with  reason,  but  sometimes  to  an  un- 
justifiable eztrAne.  Thus  it  has  even  been 
held  that  "the  positive,  personal,  and  nondel- 
egatable  duty  of  a  master  to  provide  a  reason- 
ably safe  place  In  which,  and  reasonably  safe 
supplies  with  which,  to  work  out  a  reasonably 
•afe  method  of  doing  the  work,  Is  a  duty  of 
construction  and  provision,  and  not  of  opera- 
tion."   Kinnear  Co.  v.  Carlisle,  152  Fed.  933, 


82  O.  C.  A.  81.  And  see  Penn.  Co.  T.  Flsb- 
ack,  123  Fed.  405,  59  C.  C.  A.  269. 

The  authorities  as  to  when  and  how  far 
the  master  may  by  selection  of  proper  serv- 
ants and  by  adequate  directions  to  them  to 
warn,  as  distinguished  from  Instructing  oth- 
er servants  of  danger,  secure  exoneration 
from  harm  Inflicted  on  such  other  servants 
by  such  other  failure  in  fact  to  warn,  are 
certainly  not  in  harmony.  26  Cyc.  1337.  In 
Western  Elea  Co.  v.  Hanselmann,  136  Fed. 
564-566,  69  C.  C.  A.  846,  70  L.  R.  A.  765, 
Townsend,  J.,  expresses  the  opinion  that  they 
are  In  "irreconcilable  conflict."  The  deci- 
sions which  have  refused  to  hold  that  the 
giving  of  signals  Is  a  duty  which  cannot  be 
delegated  will  be  found  collected  in  2  Labatt, 
M.  &  S.  607.  Many  other  cases  in  which 
failure  to  warn  servants  as  to  danger  aris- 
ing from  the  execution  of  the  details  of  the 
work  was  held  to  be  the  wrong  of  a  fellow 
servant  will  be  found  collected  in  a  note  by 
Mr.  Labatt    54  L.  R.  A.  120. 

Defendant's  contention  is  that  this  case  is 
supported,  moreover,  not  only  by  a  considera- 
ble group  of  these  more  general  authorities, 
but  also  by  a  number  of  cases  which  Involved 
facts  substantially  Identical  with  those  in 
the  case  at  bar.  Thus  it  was  held  in  Port- 
ance  v.  L.  H.  Co.,  101  Wis.  674,  77  N.  W.  875, 
70  Am.  St.  Rep.  932,  that  the  workman  and 
the  hatchman  were  fellow  servants,  because 
the  master  who  properly  selects  and  instructs 
a  man  to  give  notice  to  the  other  employes 
of  the  movements  of  the  apparatus  In  unload- 
ing coal  from  a  vessel  is  not  responsible  for 
his  failure  to  give  warning.  To  the  same  ef- 
fect, see  Ocean  S.  S.  Co.  v.  Cheeney,  86  Ga. 
278,  12  S.  EX  351;  Cheeney  v.  Ocean  S.  8. 
Co.,  92  Ga.  726,  19  S.  R  33,  44  Am.  St  Rep. 
113;  Hermann  y.  Mill  Co.  (D.  C.)  71  Fed. 
853.  Defendants  refer  us  also  to  cases  de- 
cided by  this  court  involving  traveling  cranes 
which  will  subsequently  be  considered.  There 
are,  moreover,  other  decisions  of  this  court 
tending  directly  to  sustain  defendant's  con- 
tention. 

(2)  Notwithstanding  this  formidable  array 
of  general,  specific,  and  local  authorities,  we 
are  none  the  less  of  opinion  that  the  proper 
conclusion  is  that  the  workman  In  the  hold 
and  the  hatchman  were  not  fellow  servants. 

(a)  The  speclflc  decisions  are  not  control- 
ling as  authority  nor  convincing  on  principle. 
The  Wisconsin  case  is  not  cogent  for  a  num- 
ber of  reasons.  The  specific  authorities  which 
It  cites  fall  to  support  the  conclusion  It  reach- 
es, with  the  exception  of  Ocean  S.  S.  Co.  v. 
Cheeney,  which  It  quotes  as  reported  in  12  S. 
E.  351.  That  report  contained  the  statement 
of  the  conclusion  that  the  laborer  and  the 
hatchman  were  fellow  servants,  but  without 
explaining  why.  The  Wisconsin  court's  at- 
tention was  evidently  not  called  to  the  fact 
that,  about  six  years  before  the  decision  of 
the  Portance  Case,  Cheeney  v.  Steamship  Co. 
came  up  again  for  decision.    See  92  Ga.  726, 


Digitized  by  VjOOQ  l€ 


796 


122  NORTHWESTERN  REPORTER. 


(Mliii*- 


19  S.  E.  38, 44  Am.  St  Rep.  113.  In  fblB  report 
the  court  reasoned  at  length  and  readied  a 
conclnalon  much  more  liberal  to  the  servant, 
although,  as  will  subsequently  herein  appear, 
It  did  not  In  so  many  words  overrule  the 
earlier  case.  In  the  Portance  Case,  more- 
over, the  machinery  was  started  without  sig- 
nal; .in  the  case  at  bar,  upon  the  signal  of 
the  batchman.  The  court  said:  "No  matter 
what  duties  the,  hatchman  may  have  had 
to  give  warning  of  danger,  they  could  have 
had  no  application  to  danger  like  this.  The 
effect  of  this  •  •  •  was  as  Instantaneous 
as  the  earliest  possible  discovery  of  It  In 
the  case  at  bar  the  hatchman  could  have 
given  the  signal  before  the  machinery  was 
started."  More  general  reasons  for  regard- 
ing the  opinion  in  this  case,  or  In  Hermann 
V.  Mill  Co.,  or  In  Cheeney  v.  Steamship  Co., 
as  of  little  weight,  will  immediately  follow. 
(b)  In  point  of  fact  the  view  these  and  allied 
authorities  have  taken  is  in  large  measure  a 
necessary  product  of  the  transition  in  Judicial 
opinion  as  to  what  is  the  criterion  by  which 
It  shall  be  determined  who  is  and  who  Is  not 
a  fellow  servant.  The  decisions  of  courts  of 
other  states  that  under  g^lven  circumstances, 
one  servant  is  a  fellow  servant  of  another  are 
not  controlling  on  this  court  unless  the  cri- 
terion by  which  the  relationship  is  determined 
is  the  same  as  in  this  Jurisdiction,  namely, 
that  a  fellow  servant  is  one  to  whom  the 
master  has  not  intrusted  the  performance  of 
some  absolute  nonassignable  duty  of  the  mas- 
ter. The  federal  courts,  having  originally  an- 
nounced the  test  of  superior  servant  or  the 
doctrine  of  control,  then  rejected  It,  and  adopt- 
ed the  separate  department  theory.  It  has 
been  quite  generally  thought  that  this  theory 
has  been  in  turn  largely  abandoned  and  the 
current  test  of  a  vice  principal  adopted.  But 
in  Peters  v.  Oeorge,  154  Fed.  634,  83  C.  C.  A. 
408,  Judge  Gray  said  that:  "Under  the  mod- 
em rule  of  the  federal  courts,  even  the  theory 
of  vice  principal  as  determining  the  liability 
of  a  master  has  been  largely  discarded,  and 
the  distinction  to  be  considered  as  merely 
and  solely  the  negligence  of  a  fellow  servant 
turns  rather  on  the  character  of  the  act  than 
on  the  relation  of  the  employ&i  to  each  oth- 
er." See  2  Labatt  1576;  Texas  &  P.  R.  Co. 
T.  Burman,  212  U.  S.  536,  29  Sup.  Ct  319, 
53  L.  Ed.  641.  Tills  evolution  in  opinion  has 
been  reflected  in  various  degrees  In  courts 
of  many  states,  including  Wisconsin  and  Geor- 
gia. As  to  the  earlier  rule  in  Wisconsin,  see 
Brabbitts  T.  Railway  Co.,  supra.  As  to  the 
test  of  co-association  or  distinct  department 
of  service,  see,  for  example,  Cadden  v.  Amer- 
ican B.  0.  Co.,  88  Wis.  409-418,  60  N.  W. 
800;  Rankel  'v.  BuckstafT-Edwards  Co.  (Wis.) 
120  N.  W.  269,  20  L.  R.  A.  (N.  S.) 
1180;  2  Labatt  1609.  As  to  Georgia,  see  1 
White,  Ry.  1470;  2  Labatt  1583.  None  the 
less  the  doctrine  of  vice  principal,  or,  more 
accurately,  the  test  whether  the  negligent 
servant  failed  in  the  performance  of  some 
absolute  duty  of  the  master,  has  been  almost 


universally  accepted.  The  doctrine  has  been 
uniformly  applied  in  this  state.  2  Labatt, 
1596.  Different  conclusions  from  the  same 
state  of  facts  must  in  general  be  reached 
under  different  tests.  In  cpnseqaence  many 
decisions  permitting  the  master  to  delegate 
the  duty  to  warn,  rendered  in  Jurisdictions 
in  which  at  the  time  the  test  of  vice  prin- 
cipal as  thus  defined  did  not  control,  are  not 
persuasive  in  this  court  Therefore  the  Port* 
ance,  Hermann,  and  Cheeney  Cases,  snpra, 
while  involving  identity  of  facts,  did  not  al- 
so Involve  Identity  of  principle,  and  are  there- 
fore not  necessarily  negligible^  but  not  at  all 
controlling,  In  this  state. 

(c)  Another  unsound  consideration  which 
has  beiea  an  obscure,  but  effective,  occasion 
for  the  rule  for  whldi  defendant  contends  is 
the  more  or  less  frankly  avowed  hostility  to 
Imposing  a  considerable  liability  on  a  master 
wbo  has  tried  to  be  careful  and  is  without 
personal  fault  Thus  In  The  Pioneer  (D.  C.) 
78  Fed.  600-600,  Morrow,  J.,  points  out  that 
in  Hermann  v.  Mill  Co.,  supra,  he  "held  that 
the  employer  had  fully  discharged  his  duty 
to  his  servant  so  far  as  a  safe  place  to  work 
in  was  concerned,  when  he  had  furnished 
a  competent  person  unhandlcapped  by  other 
duties  to  give  the  warning  signals."  It  was 
therefore  consistent  for  him  to  hold,  as  he 
did  In  The  Pioneer,  "that  the  employer  does 
not  discharge  his  full  duty  In  keeping  a  place 
reasonably  safe  by  giving  warning  of  threat- 
ened or  impending  danger,  when  the  employ^ 
charged  with  the  duty  of  giving  warning  Is 
so  engrossed  or  busy  with  other  duties  that 
he  cannot  properly  and  efficiently  give  the 
necessary  warning."  It  Is  evident  that  so 
far  as  the  person  injured  is  concerned,  it  la 
quite  Immaterial  to  what  the  failure  to  warn 
him  Is  due.  Looked  at  from  his  point  of 
view,  the  distinction  Is  meaningless.  But  U 
the  situation  be  regarded  from  the  point 
of  view  of  the  master,  the  distinction  Is 
clear.  In  the  one  case  the  master  is  not 
personally  at  fault  Therefore  Judge  Mor- 
row concluded  he  was  not  reliable  in  tort 
In  the  other  case  the  master  was  personally 
at  fault  Therefore  Judge  Morrow  conclud- 
ed he  was  liable  in  damages.  The  same  rea- 
soning and  conclusion  appear  In  the  two 
decisions  of  the  Cheeney  Case.  These  are 
but  two  of  the  many  lUnstratlons  of  the 
current  confusion  of  the  master's  negligence 
with  the  master's  responsibility  for.  his  serv- 
ant's negligence.  Moreover,  so  far  as  the 
Wisconsin  court  is  concerned,  the  fluctuations 
of  opinion  in  that  court  as  to  the  respon- 
sibility of  the  master  render  it  difficult  to 
accurately  estimate  the  weight  to  which  the 
Portance  Case  is  properly  entitled.  It  Is 
true  the  change  in  opinion  Is  lees  marked  In 
this  group  of  cases  than  In  most  other  con- 
troversies as  to  negligence.  None  the  less 
it  is  difficult  to  see  how  the  conclusion  In 
the  Portance  Case  Is  to  be  reconciled  with 
the  doctrine  of  that  court  which  we  have 
previously  quoted  or  with  later  dedsiona  like 


Digitized  by  LjOOQ  l€ 


Minn.) 


ANDERSON  t.  PITT8BUEQ  COAL  CO. 


797 


OuBsart  y.  Stone  Co.,  134  Wis.  418,  114  N. 
W.  799,  and  Promer  v.  Railway  Co.,  90  Wis. 
215.  63  N.  W.  90,  48  Am.  St  Rep.  905,  which 
will  be  subsequently  herein  referred  to. 

(d)  The  true  fundamental  principle  was 
announced  In  Farwell  v.  Boston  Co.,  4  Mete. 
(Mass.)  49,  38  Am.  Dec.  339,  namely:  "The 
rule  is  obviously  founded  on  the  correct  prin- 
ciple of  social  duty  that  every  man,  in  the 
management  of  affairs,  whether  by  himself, 
his  agents,  or  servants,  shall  so  conduct  them 
as  not  to  injure  another ;  apd  if  he  does  not, 
and  another  thereby  sustains  damages,  he 
must  answer  for  it."  The. latest  utterance 
of  the  federal  Supreme  Court  has  fully  ap- 
proved this  reasoning  "from  consideration  of 
policy  and  security."  Mr.  Justice  Moody,  in 
Standard  Oil  Co.  v.  Anderson,  212  U.  S.  216- 
221,  29  Sup.  Ct  252,  53  L.  Ed.  480.  So,  in 
Barton  Hill  Coal  Co.  v.  Reid,  3  MacQ.  266, 
283,  Lord  Cranwortb  said:  "The  master  is 
t>ound  to  guarantee  third  persons  against  all 
hurt  arising  from  the  carelessness  of  him- 
self or  of  those  acting  under  his  orders  in 
the  course  of  his  business."  More  specifical- 
ly, "no  duty  required  of  the  master  for  the 
safety  and  protection  of  his  servants  can  be 
transferred,  so  as  to  exonerate  bim  from 
such  liability."  Field,  J.,  in  N.  P.  R.  R. 
V.  Herbert,  116  U.  S.  642,  6  Sup.  Ct.  590- 
593,  29  Ia  Ed.  755.  And  see  Hough  v.  Rail- 
road Co.,  100  U.  S.  213,  25  L.  Ed.  612.  The 
delegation  to  an  employe  or  servant  of  the 
duty  of  taking  such  measures  as  are  yrithln 
the  power  of  the  master  to  protect  other  em- 
ployes against  dangers  while  at  work  can- 
not relieve  the  master  from  liability,  If  the 
employes  to  whom  such  duty  is  deputed 
does  not  exercise  reasonable  care  In  its  dis- 
charge. Promer  v.  Railway  Co.,  90  Wis. 
215.  63  N.  W.  90.  48  Am.  St  Rep.  905.  The 
last-cited  authorities  may  state  the  rule  too 
broadly.  The  courts  of  neither  the  federal 
nor  the  Wisconsin  Jurisdictions  have  follow- 
ed It  literally.  But  the  general  principle  thus 
announced  is  obviously  correct  and,  subject 
to  modification  justified  by  particular  dreum- 
Btances,  is  generally  accepted. 

(e)  Conformity  to  this  principle  and  rea- 
soning consistent  with  allied  rules  of  law  ac- 
cepted without  controversy  require  the  hold- 
ing that  usually  a  servant  whose  duty  it  is 
to  warn  another  of  danger  created  by  changes 
in  operation  of  machinery  of  the  plant  Is  a 
vice  principal.  It  is  to  be  noted  that  defend- 
ant's authorities  and  others  inconsistent  with 
the  conclusion  here  reached  exhibit  a  curious 
reluctance  or  at  least  a  silence  as  to  the  ulti- 
mate principle  on  which  they  rest.  The  basis 
of  the  doctrine  is  generally  a  dogmatic  asser- 
tion of  the  rule  as  sustained  by  the  authori- 
ties which  announce  It  The  statement  of 
Mr.  Labatt  in  54  L.  R.  A.  120,  Is  an  approxi- 
mation to  the  rationale:  "The  general  prin- 
ciple that  the  master's  duty  to  provide  a  safe 
place  to  work  is  not  deemed  to  have  been  vio- 
lated, where  the  unsafety  is  caused  solely  by 
the  acts  of  co-servants  in  carrying  out  the 


details  of  the  work,  clearly  involves  the 
corollary  that  the  master  is  not  chargeable 
with  the  failure  of  these  servants  to  warn 
each  other  as  to  the  existence  of  dangerous 
conditions  which  already  have  supervened." 
This  determines  that  faUure  to  warn  as  di- 
rected is  a  detail,  but  fails  to  assign  any  rea- 
son for  that  conclusion.  In  the  nature  of 
things  usually  that  duty  is  nonassignable, 
and  its  performance  is  not  a  detaU.  If,  for 
example,  the  master  provides  guards  for  dan- 
gerous machinery  and  directs  their  proper 
use,  he  Is  none  the  less  liable  if,  through  ne^ 
lect  they  are  not  used,  whereby  another  serv- 
ant is  hurt  Davidson  v.  Flour  City  Orna- 
mental Iron  Works  (Minn.)  119  N.  W.  483; 
Balrd  v.  Reilly,  92  Fed.  884,  35  C.  C  A  78. 
And  see,  for  example,  Shanny  v.  Company,  66 
Me.  420,  approved  in  N.  P.  Ry.  v.  Herbert,  116 
U.  a  642,  6  Sup.  Ct  590-595,  29  L.  Ed.  756. 
Why,  then,  should  the  master  be  excused  by 
giving  empty  orders  to  one  servant  to  warn 
another  engrossed  in  his  work  of  a  danger 
arising  by  the  master's  act  in  the  place  the 
master  has  provided,  which,  but  for  that  act 
would  be  safe?  Again,  it  is  generally  held  in 
and  by  the  federal  and  Wisconsin  courts  in 
particular  that  "the  duty  to  warn  and  instruct 
an  employe  who  is  set  to  perform  a  danger- 
ous work  with  which  he  Is  unacquainted  is  a 
primary  and  absolute  duty  of  the  master  to 
the  servant  and  he  cannot  relieve  himself 
of  liability  for  its  nonperformance  by  dele- 
gating or  instructing  it  to  a  subordinate  or 
to  a  fellow  servant  of  such  workman.  Noth- 
ing short  of  actual  notice  of  the  danger  to 
the  workman  who  is  to  encounter  it  with 
such  cautionary  explanation  as  may  enable 
him  to  avoid  it,  will  satisfy  the  requirement 
of  the  law,  and  the  default  of  an  inter- 
mediary, whether  he  be  the  highest  officer  in 
control  or  merely  a  fellow  workman  of  the  one 
exposed  to  the  danger,  is  the  default  of  the 
master."  Gray,  X,  in  Peters  v.  George,  154 
Fed.  634,  83  G.  C.  A.  408.  To  the  same 
effect  see  Timlin,  J.,  in  Oussart  v.  Stone 
Co.,  134  Wis.  425,  114  N.  W.  802  a808),  re- 
ferring to  the  other  Wisconsin  cases.  And, 
see  Marshall,  J.,  in  Fleming  v.  Paper  Co., 
135  Wis.  157,  114  N.  W.  841,  16  L.  B.  A. 
(N.  S.)  701.  And  see  Allen,  C.  J.,  in  Wheeler 
r.  Mfg.  Co.,  135  Mass.  294.  This  is  certainly 
the  rule  In  this  state.  Why  Is  the  duty  to 
warn  or  instruct  an  Inexperienced  servant  in- 
capable of  delegation,  and  the  duty  to  warn 
of  danger  impending  because  of  some  inde- 
pendent act  performed  for  the  master's  pur- 
poses capable  of  delegation?  In  the  former 
class  of  cases  the  servant  is  usually  in  a  posi- 
tion to  readily  discover  the  danger  to  which 
his  master's  negligence  may  have  exposed 
him,  even  in  cases  in  which  delegable  duty  to 
warn  may  exist  See  O'Nlel  v.  Railway  Co., 
80  Minn.  27,  82  N.  W.  1086,  61  L.  R.  A.  682. 
It  seems  almost  whimsical  to  hold  that 
the  master  may  not  delegate  the  duty  to  in- 
struct servants  of  a  dangerous  peculiarity 
of  a  place  or  instrumentality  of  which  the 


Digitized  by  LjOOQ  l€ 


798 


122  NORTHWESTBRN  REPORTEB. 


(Minn. 


■errant  hlmsdf  might  learn,  and  yet  to  bold 
that  the  master  would  not  be  responsible  for 
the  failure  of  another  servant  to  give  warn- 
ing that  he  was  about  to  start  a  machine  into 
motion.  Of  his  intention,  the  injured  servant 
could  not  have  learned;  of  the  execution  of 
bis  intention,  ttie  injured  servant,  engrossed 
in  his  work.  Is  perilously  likely  to  be  ignor- 
ant Moreover,  the  danger  which  comes  from 
starting  the  machinery  into  motion  without 
warning,  usual  or  unusual,  is  peculiarly  like 
to  result  in  harm. 

Finally,  the  duty  to  warn  even  third  per- 
sons of  a  danger  created  by  the  act  of  the 
person  sought  to  be  charged  is  one  which  can- 
not be  delegated.  Thus  in  Boucher  v.  N.  X. 
R.  Co.,  196  Mass.  355.  82  N.  B.  15,  13  L.  R.  A. 
(N.  8.)  1177,  Knowles,  C.  J.,  said:  "Where 
one  is  conducting  a  business,  the  necessary  ef- 
fect of  which  is  to  expose  others  to  great  dan- 
ger, so  that  he  ought  to  take  precautions 
for  their  safety,  he  is  responsible  for  negli- 
gence of  an  independent  contractor,  to  whom- 
he  Intrusted  the  performance  of  the  duty." 
This  was  applied  to  the  negligence  of  a  gate 
tender  at  a  street  crossing  of  a  railroad, 

(f)  The  weight  of  authority  is  that,  as  a 
general  rule,  the  duty  of  the  master  to  warn 
the  servant  of  impending  danger  caused  by 
an  independent  act  performed  for  the  mas- 
ter's business,  and  of  perils  resulting  from 
the  fact  that  a  safe  place  became  dangerous 
through  the  work  there  carried  on.  Is  an 
absolute  duty  which  the  master  cannot  dele- 
gate.   See  authorities  collected  in  10  Cyc.  742 ; 

26  Cyc.  1337;  Gerrish  v.  Ice  Co.,  63  Conn.  9, 

27  Atl.  235  (employd  tailed  to  notify  engineer 
of  the  dangerous  position  of  plaintiff.  Injur- 
ed by  the  starting  of  machinery);  Hardack- 
er  V.  Sayles  (R.  I.)  66  Atl.  298  (failure  to 
notify  of  slipping  oi:  steam  Joint) ;  Railroad 
Co.  V.  Deserant,  9  N.  M.  49,  49  Pac.  807 
(failure  of  employ^  to  advise  minors  of  pres- 
ence of  dangerous  gases).  And  see  2  Labatt, 
678,  679.  Even  under  the  test  for  determi- 
nation of  who  is  a  fellow  servant  in  vogue 
in  the  federal  courts,  the  tendency  is  to  ex- 
tend the  cases  in  which  the  duty  of  warning 
cannot  be  delegated.  See  Western  Elec.  Co. 
V.  Hanselmann,  136  Fed.  564,  69  C.  C.  A. 
346,  70  L.  R.  A.  765,  supra;  K.  B.  C.  Co. 
V.  Nance  (O.  C.  A)  165  Fed.  44-47  (in  which 
the  master  adopted  a  dangerous  method, 
which  made  it  incumbent  to  warn  plaintiff, 
a  servant  at  work  in  a  place  safe  in  itself, 
but  made  dangerous  by  the  work  of  removal, 
and  it  was  held  that  the  master  could  dele- 
gate the  duty  to  warn).  And  see  The  Boverlc 
(0.  C.  A.)  167  Fed.  520;  InternaUonal  Paper 
Co.  V.  Robin  (C.  O.  A.)  167  Fed.  922;  Toledo 
Co.  V.  Bosde,  101  Fed.  530;  The  Hagdallne 
(D.  C.)  91  Fed.  798. 

It  Is  not,  however,  necessary  here  to  de- 
cide, nor  Is  it  here  decided,  that  under  all 
circumstances  the  duty  of  the  master  to 
warn  his  servant  of  impending  danger  is  not 
absolute  or  nonassignable.  The  principle 
which  determines  this  case  is :    When  an  em- 


ploy4  Is  at  woiic  in  a  place  safe  la  UaOt,  bat 
which  by  virtue  of  some  Independent  work 
done  for  the  master's  purposes  becomes  dan- 
gerous, unless  prior  warning  of  the  impend- 
ing danger  be  given,  and  when  the  master 
has  required  such  notice  to  be  given  or 
has  assumed  to  customarily  give  such  warn- 
ing through  an  employe,  the  person  charged 
with  that  duty  Is  a  vice  principal.  For  his 
negligence  therein  the  master  is  liable.  This 
rule  is  generally  accepted.  Comrade  v.  Atlas 
Co.  (Wash.)  87  Ifac.  517  (failure  to  blow 
whistle  before  starting  machinery  in  mo- 
tion); Nelson  v.  Wllley  C!o.,  26  Wash.  548, 
67  Pac  237  (where  a  steamboat  mate  untied 
a  gang  plank,  but  negligently  failed  to  give 
customary  warning  before  letting  it  slide  to 
the  deck,  to  the  injury  of  a  deckhand: 
O'Brien  v.  Page  Co.,  39  Wash.  537,  82  Pat 
114-116  (applying  a  "nigger"  to  a  log  in  a 
sawmill  without  warning  to  plaintiff  "dog- 
ger") ;  Hough  V.  0.  P.  E.  Co.,  41  Or.  531,  69 
Pac.  655  (failure  to  warn  lineman  of  turn- 
ing on  electric  power);  Postal  &  C.  Co.  v. 
Likes,  225  111.  249,  80  N.  E.  136;  Pantzar 
V.  TiUy  Mining  Co.,  99  N.  Y,  368,  2  N.  E.  24- 
27  (failure  of  master  to  warn  servant  at 
work  in  mine  of  danger  from  rock  liable  to 
fall);  O.  F.  R.  E.  v.  Crockett,  19  Neb.  139, 
26  N.  W.  921;  Anderson  v.  Railway  Co.,  8 
Utah,  128,  30  Pac.  306.  And  see  Dlzonno  v. 
G.  N.  Ry.  Co.,  103  Minn.  120,  114  N.  W.  736 
(servant  directed  to  p&ea  over  a  pile  of  plate 
by  foreman,  who  moved  a  plate  to  plaintiff's 
injury). 

Counsel  for  defendant  has  called  our  at- 
tention to  two  traveling  crane  cases  in  this 
state  which  he  urges  are  inconsistent  with 
the  view  here  taken.  lemmings  t.  Railway 
Co.,  96  Minn.  302,  104  N.  W.  1079,  1  U  R.  A- 
(N.  S.)  696  (which  did  not  involve  a  customa- 
ry warning),  and  Bemeche  y.  Hllllard,  101 
Minn.  366,  112  N.  W.  392.  The  rule  In  the  lat- 
ter case  is  conclusively  in  favor  of  plaintiff 
here.  There^the  foreman,  Hood,  who  pot  the 
derrick  In  motion,  to  plaintiff's  Injury,  "was 
in  no  position  to  observe  or  know  of  the  con- 
dition of  things"  where  plaintiff  was.  "To 
charge  the  defendant  with  UabUlty  for  this 
act  of  Hood,  knowledge  in  fact  on  his  part 
that  plaintiff  would  thereby  be  put  In  danger 
of  injury  should  have  been  shown.  •  •  • 
With  that  fact  affirmatively  appearing,  plain- 
tiff could,  within  the  rule  of  some  of  our  deci- 
sions, recover.  See  Lohman  v.  Swift  Co.,  105 
Minn.  148,  117  N.  W.  418,  distingoishlng  the 
Bemeche  Case  and  Doerr  v.  News  Co.,  97 
Minn.  248,  106  N.  W.  1044.  So  within  Inland 
Co.  V.  Smith,  39  Ind.  App.  636,  76  N.  B.  852. 
affirmed  168  Ind.  245,  80  N.  E.  538,  involving 
damage  by  a  traveling  crane,  the  hatc^unan 
here  must  be  held  to  be  a  vice  principal. 

The  strongest  case  in  this  state  for  defend- 
ants seems  to  be  Lundquist  ▼.  Railway  Ck).,  65 
Minn.  387,  67  N.  W.  1006.  It  was  there  held 
that  a  servant  of  a  street  car  company,  who 
failed  to  give  timely  warning  of  the  approach 
of  a  car  to  other  employes  engaged  in  track 


Digitized  by 


L-oogle 


K.  D.) 


HUGHES  T.  HORSKY. 


799 


repairing,  waa  a  fellow  serrant  of  repairers. 
And  see  Martin  y.  Railway  Co.,  16C  U.  S. 
399,  17  Sup.  Ct  603,  41  L.  Ed.  1051  (ns  to 
which  the  aberrations  In  the  federal  tests  of 
who  Is  a  fellow  servant  are  to  be  borne  In 
mind),  and  2  Labatt,  M.  &  S.  p.  1741,  {  COL 
Mitchell,  X,  was,'  boweTer,  of  the  opposite 
opinion.  See  EriclcBon  y.  Railway  Co.,  41 
Minn.  500,  48  N.  W.  332,  5  L.  R.  A.  786.  And 
see  Anderson  t.  Railway  Co.,  42  Minn.  424, 44 
N.  W.  315.  In  Wisconsin  such  negligence  of 
the  serrant  has  been  held  not  to  be  that  of  a 
fellow  servant.  Promer  v.  Railway  Co.,  90 
Wis.  215,  63  N.  W.  90,  48  Am.  St.  Rep.  905. 
This  Is  the  generally  accepted  view.  See  Rail- 
way Co.  V.  Eaton,  194  111.  441,  62  N.  K.  784, 

88  Am.  St.  Rep.  101;  Railway  Co.  y.  Skola,  183 
IlL  454,  56  N.  B.  171,  75  Am.  St.  Rep.  120; 
Railway  Co.  v.  Wise,  106  111.  App.  174,  affirm- 
ed 206  lU.  453,  60  N.  E.  500;  D'Agostlno  ▼. 
Railway  Co.,  72  N.  3.  Law,  358,  60  AtL  1113. 
On  the  same  principle  the  duty  to  warn  of  an 
expected  explosion  Is  "masterlal."  Carlson  v 
Co.,  101  Minn.  446,  112  N.  W.  626;  Borgerson 
y.  Cock  Co.,  91  Minn.  91,  97  N.  W.  734;  HJelm 
y.  Granite  Co.,  94  Minn.  169,  102  N.  W.  384. 
To  the  same  effect,  see  Hendrickson  v.  Gyp- 
snm  Co.  133  Iowa,  89,  110  N.  W.  322,  9  L. 
R.  A.  (N.  S.)  665,  12  Am.  &  Eng.  Ann.  Cas. 
247;  BellvUle  Co.  v.  Mooney,  60  N.  J.  Law, 
323,  38  Atl.  835;  Goal  Co.  y.  Till,  228  111. 
233,  81  N.  B.  857;  Burrows  y.  Ozark  Co.,  82 
Ark.  343,  101  S.  W.  744.  But  see  Donovan 
y.  Ferris,  128  Cal.  48,  60  Pac.  519,  79  Am. 
St.  Bep.  25;  Gallagher  v.  McMuUln,  25  App. 
Dly.  671,  49  N.  Y.  Supp.  734;  Hare  v.  Mc- 
Intlre.  82  Me.  240,  19  Atl.  453,  8  L.  R.  A. 
450,  17  Am.  St  Rep.  476.  Cf.  Rankel  v.  Buck- 
Btaff-Edwards  Co.  (Wis.)  120  N.  W.  269,  20 
L.  R.  A.  (N.  S.)  1180. 

Finally,  this  view  of  the  law  Is  dearly  and 
certainly  sustained  by  a  group  of  cases  In 
which  It  has  been  consistently  applied.  Fitz- 
gerald y.  Inter.  Flax  Co.,  104  Minn.  138, 
116  N.  W.  475  (plaintiff,  engaged  In  splic- 
ing a  strand  of  flax  on  a  machine  at  rest, 
was  injured  by  the  starting  of  the  machin- 
ery without  the  usual  signal);  HJelm  v. 
Granite  'Co.,  94  Minn.  169,  102  N.  W.  884 
(Injury  by  a  rock  thrown  by  a  blast,  through 
the  negligence  of  the  servant  to  give  cus- 
tomary notice);  Lohman  v.  Swift,  105  Minn. 
148,  117  N.  W.  418  (plaintiff  was  injured 
by  the  sudden  starting  of  machinery  which 
be  was  engaged  In  repairing) ;  Cody  y.  Long- 
year,  103  Minn.  116,  114  N.  W.  735  (injury 
caused  by  the  starting  of  a  diamond  drill 
without  warning).  And  see  Doizonno  y.  G. 
N.,  103  Minn.  120,  114  N.  W.  736;  Hess  v. 
Adamant  Mfg.  Co.,  66  Minn.  79,  68  N.  W.  774; 
Perras  v.  Booth  &  Co.,  82  Minn.  191,  84  N.  W. 
739,  85  N.  W.  179;    Renlund  y.  Mining  C!o., 

89  Minn.  41,  93  N.  W.  1057,  99  Am.  St  Rep. 
634;  Ready  v.  Peavey  Elev.  C!o.,  89  Minn. 
154,  94  N.  W.  442;    Barrett  v.  Reardon,  95 


Minn.  425,  104  N.  W.  309;  Kohout  y.  New- 
man, 96  Minn.  61,  104  N.  W.  764 ;  Raltlla  v. 
Consumers'  Co.  (Minn.)  119  N.  W.  490; 
Johnson  v.  Navigation  Co.,  132  N.  Y.  676,  30 
N.  B.  506. 

3.  It  Is  further  Insisted  that  the  damages 
as  flixed  by  the  Jury  ($8,000)  are  excessive, 
and  appear  to  have  been  given  under  the  in- 
fluence of  passion  or  prejudice.  Plaintiff  was 
found  by  the  examining  physician  in  substan- 
tially his  own  words  to  have  trouble  In  his 
right  hip  joint.  The  Inflammatory  condition 
caused  the  ligaments  to  tighten.  Deformity 
resulted.  The  muscles  around  the  joint  were 
drawn  together.  The  apparent  deformity  ap- 
peared on  account  of  the  tilting  of  the  pelvis. 
The  leg  was  shortened  ll^  Inches.  Five  or  six 
months  afterwards  he  made  another  examina- 
tion. The  shortening  had  increased  %  inch. 
When  plalntiflF  stands  straight  there  is  a 
curving  of  the  spine.  His  spine  Is  not  straight 
the  way  a  person's  natural  spine  is.  A  con- 
tinued curvature  of  the  spine  is  likely  to  pro- 
duce disease.  "We  call  this  trouble,  as  nearly 
as  it  can  be  diagnosed,  tubercular  hip  joint." 
Plaintiff  was  a  young  man  earning  from  $50 
to  $80  per  month.  Prior  to  bis  injury  he 
was  in  good  health.  Six  months  or  more 
after  the  Injury  he  was  sick,  and  without 
the  aid  of  a  cane  was  not  able  to  walk  more 
than  three  to  six  blocks  without  resting. 
The  physician  testified  that  his  present  condi- 
tion was  permanent;  that,  in  spite  of  any 
treatment  he  may  get  bis  former  condition 
could  not  be  restored;  that  he  would  never 
be  able  again  to  do  hard  work.  The  trial 
court,  as  well  as  the  Jury,  saw  the  plaintiff 
and  heard  this  testimony.  Under  the  author- 
ities we  are  unwilling  to  Interfere  with  that 
verdict  approved  as  it  was  by  the  trial 
court 

Other  assignments  of  error  which  do  not 
warrant  discussion  have  been  examined,  con- 
sidered, and  found  not  to  Justify  reversal. 

Affirmed. 


HUGHES  et  al.  y.  HORSKY  et  al. 

(Supreme   Court  of  North   Dakota.     Jane   30, 
1909.    Rehearing  Denied  Oct  18,  1909.) 

1.  CouMTiEfl  (1 178*)— Bond  Issue  Election— 
NOTicB— Sufficiency. 

Under  a  statute  providing  for  an  election 
on  the  question  of  issuing  bonds  for  a  court- 
bouse  or  jail,  or  both,  requiring  the  notice  of 
such  election  to  state  its  object,  the  amount  of 
bonds  to  be  issued,  the  denominations  of  such 
bonds,  the  length  of  time  for  which  they  shall 
run,  and  the  rate  of  interest  which  they  shall 
bear,  an  election  held  under  a  notice  which 
failed  to  state  the  denominations  of  the  bonds 
proposed  to  be  issued,  and  the  rate  of  in- 
terest which  they  were  to  bear,  is  invalid,  and 
it  is  therefore  illegal  for  the  county  officials  to 
issue  the  bonds  so  voted. 

[Ed.    Note.— For   other   cases,    see   Counties, 
Cent.  Dig.  I  271 ;    Dec.  Dig.  |  178.*] 


•For  otlMT  CUM  SM  nms  topic  and  lectlon  NUMBER  In  Dec  *  Am.  Diss.  U07  to  date,  A  Reporter  Indexes 


Digitized  by  VjOOQ  IC 


800 


122  NORTHWESTERN  REPORTER. 


(N.D. 


2.  courties  (i  178*)— bokd  issxtb  election 

— Sepabatb  Questions. 

Utider  a  statute  providing  for  the  issuance 
of  bonds  for  county  buildings  providing  for  the 
submission  of  the  question  of  the  issuance  of 
bonds  for  a  courthouse,  or  jail,  or  both,  held, 
that  when  the  erection  of  a  courthouse  and  jail 
in  one  building  is  contemplated,  and  the  notice 
so  indicates,  the  question  of  issuing  bonds  may 
be  submitted  and  voted  upon  as  one  question; 
but  that  when  two  separate  buildings  are  plan- 
ned, two  questions  are  presented,  and  although 
they  may  be  anbmitted  in  the  same  notice,  it 
must  be  so  done  that  each  voter  may  vote  for  or 
against  each  proposition  independently  of  the 
other. 

[Ed.  Note.— For  other  cases,  see  Cotinties, 
Cent.  Dig.  S  272;    Dec.  Dig.  {  178.*] 

(Syllabtts  by  the  Court.) 

Appeal  from  District  Court,  Pierce  Coun- 
ty; Goss,  Judge,  Presiding  by  Request 

Action  by  C.  B.  Hugbes  and  others  against 
Joseph  Horsky  and  others,  as  Commission- 
ers of  Pierce  County,  and  Pierce  County. 
Judgment  for  defendants,  and  plaintiffs  ap- 
peal.   Reyersed. 

L.  N.  Torson,  for  appellants.  A.  M.  Cbrlst- 
lanson  and  B.  L.  Sbuman,  for  respondents. 


SPALDINO,  J.  Tbls  Is  an  appeal  from  a 
Judgment  against  the  plaintiffs  and  appel- 
lants, denying  their  demand  that  the  county 
commissioners  of  Pierce  county  be  restrain- 
ed from  Issuing  and  negotiating  certain 
bonds  voted  to  be  issued  by  said  county  at 
the  November,  1908,  general  election,  for  the 
purpose  of  building  a  courthouse  and  Jail 
In  Pierce  county.  The  first  contention  of  ap- 
pellants Is  that  there  was  no  sufficient  no- 
tice given  of  the  election  held  for  the  piur- 
pose  of  voting  for  or  against  the  issuance  of 
bonds  for  such  purpose.  Section  2565  of  the 
Revised  Codes  of  1905,  providing  for  elec- 
tions on  the  issuance  of  bonds  for  county 
buildings  requires:  "Such  election  shall  be 
held  in  the  manner  and  upon  the  notice  pre- 
scribed by  law  for  other  elections,  but  the 
published  and  posted  notices  of  such  elec- 
tion shall  state  Its  object,  the  amount  of 
bonds  to  be  issued,  the  denominations  of 
such  bonds  and  length  of  time  for  which 
they  shall  run  and  the  rate  of  interest  which 
they  shall  bear."  In  the  case  at  bar  the 
notice  of  election  on  bonds  was  Included  in 
the  notice  of  general  election  held  on  the 
3d  day  of  November,  1908,  and  so  much  of 
such  notice  of  election  as  relates  to  the 
bond  issue  reads  as  follows:  "Also  to  vote 
on  the  question  of  bonding  the  county  of 
Pierce  for  $75,000  for  a  term  of  twenty  years 
for  the  erection  of  a  new  courthouse  and 
Jail."  No  extended  discussion  regarding 
the  adequacy  of  this  notice  is  necessary. 
We  have  Just  held,  in  the  case  of  Stem  ▼. 
City  of  Fargo,  that  a  notice  which  did  not 
definitely  state  the  amount  of  the  bonds  pro- 
posed for  issuance  was  inadequate.  The 
same  reasons  there  suggested  for  so  holding 


are  equally  applicable  In  the  case  at  bar. 
This  notice  was  faulty  in  not  stating  the 
denominations  of  the  bonds  or  the  rate  of 
Interest  which  they  were  to  bear,  and  this 
defect  rendered  the  election  invalid.  See 
Stem  V.  City  of  Fargo,  122  N.  W.  403,  and 
authorities  there  cited,  all  of  which  are  ap- 
plicable herein. 

But  for  the  fact  that  another  election  on 
the  same  subject  may  be  held,  it  would  be 
unnecessary  to  refer  to  the  remaining  con- 
tention of  appellants,  which  is  that  the  vot- 
ers were,  by  the  terms  of  the  notice,  com- 
pelled to  vote  either  for  issuing  bonds  for 
both  a  courthouse  and  Jail,  or  against  is- 
suing bonds  for  either.  In  the  Fargo  Case 
we  held,  under  the  facts  and  law  applicable 
to  that  proceeding,  that  the  submission  of 
the  question  of  issuing  bonds  for  part 
of  a  waterworks  system,  and  an  electric 
light  plant,  were  two  purposes,  not  natural- 
ly or  necessarily  connected,  and  that  there- 
fore they  could  not  be  submitted  in  such 
manner  that  the  voter  must  vote  for  or 
against  both  propositions.  After  careful  con- 
sideration we  are  satisfied  that  the  questions 
are  not  identical.  The  statute  applicable  to 
the  Issuance  of  bonds  for  county  buildings 
is  materially  different,  and  we  think  contem- 
plates the  submission  of  the  vote  for  or 
against  bonds  for  a  courthouse  or  Jail  to- 
gether, provided  the  notice  states  that  they 
are  included  in  the  same  building.    It  reads: 

"Sec.  2563.  Whenever  any  county  in  this 
state,  having  three  hundred  voters  or  more, 
shall  have  been  organized  for  four  years 
or  more,  and  the  county  seat  of  such  coun- 
ty has  been  permanently  located  as  provid- 
ed by  law  and  the  buildings  occupied  by 
such  county  for  courthouse,  office  or  Jail 
purposes  are  inadequate  to  ttie  wants  there- 
of, or  unsafe  by  reason  of  extraordinary  risk 
of  fire  or  otherwise,  such  county  may  issue 
bonds  for  the  purpose  of  purchasing  a  site 
for  and  erecting  a  courthouse  or  Jail,  or  both, 
under  the  restrictions  and  according  to  tihe 
provisions  of  this  subdivision  of  this  article. 

"Whenever  in  the  Judgment  of  a  majority 
of  the  board  of  county  commissioners  in  any 
county  which  comes  under  the  provisions  of 
this  subdivision  such  county  has  insufficient 
or  inadequate  buildings  for  its  use  for  court- 
bouse  or  Jail,  or  both,  such  board  may  order 
an  election  for  the  purpose  of  determining 
by  a  vote  of  the  electors  of  such  county  the 
question  of  Issuing  Its  bonds  for  the  pur- 
pose of  erection  of  a  courthouse  or  Jail,  or 
both,  at  such  county  seat,  if  none  Is  pro- 
vided.   *    *    •" 

Other  portions  of  the  statute  relating  to 
bonds  for  county  buildings  harmonize  with 
our  construction.  The  county  of  Pierce  is 
destitute  of  both  courthouse  and  Jail.  They 
are  necessary  means  for  the  administration 
of  Justice  and  the  enforcement  of  criminal 
laws  of  the  state,  and  in  many  ways  serve 


•For  otlier  cases  see  same  topic  aad  section  NUMBER  in  Dec.  &  Am.  Digs.  1907  to  date,  ft  Reporter  Indexia 


Digitized  by  VjOOQ  l€ 


Wis.) 


IN  RE  80UTHBEN  WISCpNSIN  POWER  CO. 


801 


a  common  purpose.  It  is  the  duty  of  the 
coonty  to  provide  a  suitable  Jail  and  a  suit- 
able place  for  holding  court  and  for  offices 
for  tbe  county  officials.  A  jail  without  a 
place  for  tbe  trial  of  criminals  would  be  of 
slight  use,  and  vice  versa.  Furthermore 
the  Legislature,  In  enacting  the  provisions 
of  the  Code  quoted,  must  have  been  aware  of 
and  must  have  taken  Into  consideration  the 
custom  which  has  long  prevailed  In  this 
state,  though  less  frequently  followed  now 
than  In  earlier  times.  We  think  that  not 
less  than  one-half  the  counties  in  the  state 
have  provided  a  Jail  within  the  county  court- 
house. We  are  therefore  ot  the  opinion  that 
the  question  of  Issuing  bonds  for  tbe  erection 
of  a  combined  courthouse  and  Jail  may  be 
properly  submitted  to  be  voted  upon  as  one 
proposition.  However,  where  the  plan  is  to 
construct  separate' buildings  for  each  purpose, 
although  the  statutory  provisions  might  pos- 
sibly bear  the  same  construction,  we  think, 
for  the  reasons  given  in  the  Fargo  Case,  that 
tbe  questions  of  bonds  for  a  courthouse  and 
bonds  for  a  Jail  should  be  separately  sub- 
mitted. They  may  be  included  in  the  same 
notice,  but  should  be  separately  stated  and 
so  arranged  on  the  ballot  that  each  may  be 
voted  on  lndet)endently  of  the  other.  This 
construction  will  protect  each  voter  in  all 
bis  rights,  and  harmonizes  with  the  reasons 
applied  In  tbe  best-considered  cases,  and  will 
not  be  an  attempted  delegation  of  power  by 
the  voters  to  the  county  commissioners. 

Tbe  Judgment  of  the  district  court  is  re- 
versed, and  It  Is  directed  to  enter  a  decree 
in  accordance  with  the  prayer  of  the  com- 
plaint.    All  concur. 

MORGAN,  O.  X,  not  participating  on  ac- 
count of  Illness. 


In  re  SOUTHERN  WISCONSIN  POWER  00. 

Appeal  of  BLACK  HAWK  LAND  CO. 
(Supreme  Court  of  Wisconsin.     Oct.  6,  1909.) 

1,  Statxjtes  (I  112*)— Local  Acts  — Title- 
Location  OF  Place. 

Laws  1901,  p.  682,  c.  462,  entitled  "An  act 
to  authorize  indlTiduals  named,  •  •  ♦  to 
baild  a  dam  across  and  to  improve  navigation  of 
the  Wisconsin  river  above  the  same,  and  to  cre- 
ate hydraulic  power,"  thongh  considered  a  lo- 
cal rather  than  a  private  act,  was  not  violative 
of  Const,  art.  4,  {  IS,  declaring  that  no  private 
or  local  bill  shall  embrace  more  than  one  sub- 
ject, which  shall  be  expressed  in  tbe  title,  in  that 
the  title  did  not  sufficiently  particularize  the 
place  on  tbe  river  where  the  dam  should  be 
built 

[Ed.  Note.— For  other  cases,  see  Statutes,  Dec. 
Dig.  I  112.*] 

2.  Constitutional  Law  (J  48*)— Validitt  of 
Statutes— Construction  to  Sustain. 

A  statute  should  not  be  adjudged  invalid 
except  on  clear  and  sufficient  grounds. 

[Ed.  Note. — For  other  cases,  see  Constitution- 
al Law,  Cent.  Dig.  §  4C ;    Dec.  Dig.  i  48.*] 


3.  Statutes  ({  109*)— Pbivatk  ob  Local  Acts 
—Title— CoNSTBucTiON. 

The  title  ot  a  private  or  local  act  should  be 
liberally  construed,  and  the  act  should  not  be 
declared  void  merely  because  tbe  title  does  not 
describe  the  subject  as  tally  and  nneqaivocally 
as  possible. 

[Ed.    Note. — For   other   cases,    see    Statutes, 
Cent.  Dig.  |  136 ;   Dec.  Dig.  $  109.*) 

4.  Statutes  (|  109*)— Conbtbuction— Title. 

It  is  only  where  the  title  of  an  act  is  so  in- 
sufficient and  defective  aa  not  to  reasonably  sug- 
gest its  purpose,  and  where  reading  thereof  wfll 
disclose  provisions  that  are  clearly  outside  its 
title,  that  it  will  be  held  invalid  on  that  ground. 
[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent  Dig.  |  136;    Dec  Dig.  {  109.*] 

5.  Navigable  Watbbb  (S  1*)  —  Statutib — 
Floating  Logs — "Navigadle  Stream." 

A  river  capable  of  floating  logs  is  a  navi- 
gable stream. 

[E^.  Note.— For  other  cases,   see  Navigable 
Waters,  Cent  Dig.  g{  5-16;   Dec  Dig.  {  1.*] 

For  other  definitions,  see  Words  and  Phrases, 
vol.  5,  pp.  4675-4684;   vol.  8,  p.  7728.] 

6.  Statutes  (§5  79,  80*)  — Chakteb— Pbaw- 
CHisES— Special  Act. 

Const,  art.  4,  f  31,  prohibiting  the  grant  of 
corporate  powers  or  privileges  by  special  act, 
merely  prohibits  the  grant  of  corporate  charters 
by  special  act,  and  does  not  prevent  the  Legisla- 
ture from  granting  a  franchise  to  a  corporation, 
by  special  act  to  construct  a  power  dam  in  a 
nver. 

[EM.    Note. — For    other   cases,    see    Statutes, 
Cent  Dig.  {{  84-^9;   Dec  Dig.  iS  79,  80.*] 

7.  COBPOBATIONB     (|     434*)    —   FRANCHISES- 

Tbansfeb  TO  Cobpobation. 

Where  certain  individuals  were  granted  a 
franchise  to  build  a  dam  in  the  Wisconsin  river, 
by  Laws  1901,  p.  C82,  c  462,  which  expressly 
provides  that  no  corporate  powers  were  granted, 
or  intended  to  be  granted,  thereby,  the  owners 
of  the  franchise  were  expressly  authorized,  by 
St.  1898,  i  1775a,  to  assign  the  same  to  a  cor- 
poration organized  under  chapter  86 ;  such  sec- 
tion authorizing  corporations  to  take  by  assign- 
ment the  privileges  the  franchise  granted  to  in- 
dividuals, either  before  or  after  the  statute  was 
passed. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Dec  Dig.  {  434.*] 

8.  cobpobatlons  (j  14*)  —  organization  — 
Purpose— Operation  of  Fbanchise. 

Under  St  1898,  g  1771,  authorizing  the  or- 
ganization of  corporations  generally  for  any  law- 
ful business  or  purpose,  a  corporation  was  law- 
fully organized  thereunder  to  purchase  and  de- 
vplop  a  water  power,  under  franchise  granted  to 
individuals  by  Laws  1001,  p.  G82,  c  462,  author- 
izing the  construction  of  a  power  dam  in  the 
Wisconsin  river. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  §§  16-22 ;   Dec  Dig.  $  14.*] 

9.  cobpobations  (j  434*)  —  fbanchise  — 
Transfer  to  Cobpobatior  —  Statutes  — 
Conbtbuction. 

Laws  1001,  p.  682,  c  462,  granting  a  fran- 
chise to  individuals  to  erect  and  operate  a  pow- 
er dam  in  tbe  Wisconsin  river,  and  providing 
(section  4)  that  no  corporate  povpers  are  grant- 
ed, or  intended  to  be  granted,  by  the  act,  did  not 
prohibit  the  acquirement  or  exercise  of  the  fran- 
chise rights  granted  by  a  corporation. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Dec  Dig.  §  434.*] 


•For  other  eases  see  same  topic  and  section  NUMBER  In  I>ee.  ft  Am.  Digs.  190T  to  date,  *  Reporter  Indexaa 
122  N.W.— 51 


Digitized  by 


Google 


802 


122  NORTHWESTERN  REPORTER. 


(WI». 


10.  CoinrEBCE  (J  18*)— Reouiatiow— Navioa- 

BU:  WATEBS— CONGBESSIONAL  JUBISDICTTON. 

Under  the  commerce  clause  of  the  federal 
Constitution,  Congress  has  charge  of  all  naviga- 
ble waters  in  the  United  States. 

[Ed.   Note. — For  other  cases,  sea  Commerce, 
Cent.  Dig.  U  12,  13;    Dec  Dig.  {  la*] 

11.  COUHEKCK  ({  IS*)— Natioablk  Watebs— 
Rkoulation  bt  State. 

A  state  has  plenary  power,  in  the  absence 
of  congressional  action,  to  regulate  navigable 
streams  entirely  within  its  borders,  subject  to 
the  right  of  Congress,  under  the  commerce  clause 
of  the  federal  Constitution,  thereafter  to  as- 
sume entire  control,  and  to  abate  any  erections 
which  may  have  been  made,  and  prevent  others 
from  being  made. 

[Ed.   Note.— For  other  cases,  see  Commerce, 
Cent.  Dig.  !S  12,  13 ;   Dec.  Dig.  S  18.*J 

12.  CoMMEBCE  (8  18*)— Navigable  Watebs— 
Dams— Statutes— Validity.  _ 

In  the  absence  of  congressional  legislation 
on  the  subject,  a  state  statute,  authorizing  a 
dam  across  a  navigable  river  wholly  within  the 
state,  is  constitutional ;  a  direct  statute  of  the 
United  States  being  required  in  order  that  such 
erections  may  be  declared  an  invalid  obstruc- 
tion and  nuisance. 

[Ed.  Note. — For  other  cases,   see  Commerce, 
Cent.  Dig.  i{  12,  13;   Dec  Dig.  {  la*] 

13.  Commerce  (5  20*)  —  Regulation— "Com- 
mon   IIIOnWATS  AND  FOBEVEB  FbEE." 

The  constitutional  provision  that  the  navi- 
gable waters  therein  referred  to  "shall -be  com- 
mon highways  and  forever  free,"  etc.,  refers  to 
political  regulations  which  would  hamper  the 
freedom  of  commerce,  and  does  not  apply  to 
physical  obstructions. 

\Ed.  Note.— For  other  cases,  see  Commerce, 
Dec.  Dig.  I  20.*] 

14.  States  (§  83*)— Internal  Impbovements 
— Delegation  or  Legislative  Powe^— Pri- 
vate Objectors. 

Where  the  Legislature  delegates  power  to 
construct  an  internal  improvement,  and  the 
state  does  not  question  that  the  improvement 
made  is  in  conformity  with  the  power  delegated, 
neither  the  necessity,  the  usefulness,  nor  the 
manner  in  which  the  improvement  is  made  can 
be  questioned  by  private  objectors. 

[Ed.  Note.— For  other  cases,  see  States,  Dec 
Dig.  i  83.*] 

15.  Eminent  Domain  (|  66*)— Pdblio  Use- 
Determination. 

Whether  a  particular  use  for  which  private 
property  is  sought  to  be  condemned  is  public  or 
private  is  a  question  of  fact,  the  ultimate  deci- 
sion of  which  is  with  the  courts. 

[Ed.  Note. — For  other  cases,  see  Ehninent  Do- 
main, C«nt.  Dig.  IS  165-167 ;   Dec  Dig.  {  66.*] 

IC.  Eminent  Domain  (J  24*)— Public  Use- 
Power  Dam. 

A  dam  constructed  in  a  navigable  stream  in 
aid  of  navigation  is  an  improvement  for  a  pub- 
lic purpose  within  the  eminent  domain  laws, 
notwithstanding  it  would  not  have  been  con- 
structed were  it  not  for  the  power  generated  by 
it,  which  the  holders  of  the  dam  franchise  in- 
tended to  use  to  generate  electricity  for  private 
sale. 

[EM.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  {  70;  Dec  Dig.  {  24.*] 

17.  Judges  (|  29*)— Change  of  Judge— Con- 
stitution —  Construction  —  "Mat  Hold 
Court." 

The  words  "may  hold  court,"  as  used  in 
Const,  art.  7,  i  11,  empowering  the  Legislature 
to  authorize  judges  of  circuit  courts  to  hold 
court  for  each  other,  do  not  limit  the  power  of 


circuit  judges  to  the  exchange  only  to  bold  ft 
regular  term  of  the  circuit  court,  bat  permit 
the  Legislature  to  authorize  a  judge  of  one  cir- 
cuit to  make  orders  at  chambers  in  another  cir- 
cuit, and  conduct  generally  the  business  in  sucb 
circuit  which  a  judge  is  authorized  by  law  to 
transact. 

[Ed.  Note.— For  other  cases,  see  Judges.  Cent. 
Dig.  H  140-142,  144,  152 ;   Dec  Dig.  §  29.*] 

18.  Judges  (|  29*)— Change  of  Judges  — 

Statutes. 

St.  189a  I  2432,  providing  for  change  of 
circuit  judges  under  certain  circumstances,  au- 
thorizes a  judge,  acting  pursuant  to  a  change 
with  the  ref^ular  judge,  to  perform  all  genera) 
judicial  busmess  iu  the  circuit  in  which  he  is 
sitting. 

[Ed.  Note.— For  other  cases,  see  Judges,  Cent 
Dig.  §S  140,  142,  144-152;   Dec  Dig.  |  29.*] 

Appeal  from  Circuit  Court,  Juneau  County : 
Chester  A.  Fowler,  Judge. 

Application  by  the  Southern  Wisconsin 
Power  Company  for  the  appointment  of  com- 
missioners to  appraise  lands  for  flowage  pur- 
poses, to  which  the  Black  Hawk  Land  Com- 
pany filed  objections.  From  an  order  over- 
ruling the  objections,  objector  appeals.  Af- 
firmed. 

This  Is  an  appeal  from  an  order  of  the  cir- 
cuit court  for  Juneau  county  denying  the  mo- 
tion of  the  Black  Hawk  Land  Company  to 
vacate  and  set  aside  an  order  appointing 
commissioners  of  appraisal  In  condemnation 
proceedings.  Chapter  462,  p.  682,  Laws  1901. 
was  entitled:  "An  act  to  authorize  William 
Gunther,  A.  D.  Johnson  and  A.  B.  Whitman, 
their  and  each  of  their  heirs,  executors,  ad- 
ministrators and  assigns  to  build  and  main- 
tain a  dam  across  and  to  Improve  the  naviga- 
tion of  the  Wisconsin  river  above  the  same, 
and  for  the  purpose  of  creating  hydraulic 
power."  Section  1  of  the  act  provided  for  the 
location  of  the  dam  and  its  height  Section 
2  provided  that  in  case  it  should  be  necessary 
to  tai^e,  flow,  or  injure  any  lands  for  the 
purpose  of  constructing  the  dam  authorized, 
or  for  the  purpose  of  Improvement,  the  gran- 
tees named  in  the  franchise  should  be  sub- 
ject to  all  the  provisions,  remedies,  and  lia- 
bilities contained  In  sections  3374-3406,  c. 
146,  St  1898,  entitled  "Of  Mills  and  Mill- 
dams."  Section  3  of  the  act  provided  that 
for  the  purpose  of  acquiring  the  necessary 
lands  for  flowage  purposes,  said  parties,  their 
heirs,  and  assigns,  might  enjoy  the  rights 
granted  to  and  conferred  upon  corporations 
by  sections  1850  to  1857,  inclusive,  of  the 
Statutes  of  1898  and  of  amendments  thereta 
Section  4  of  the  act  provided  that  no  corpo- 
rate powers  were  granted,  or  Intended  to  be 
granted,  by  it,  and  that  the  same  should  not 
be  construed  or  deemed  to  grant  corporate 
powers.  The  Soutnern  Wisconsin  Power 
Company,  the  petitioner  herein.  Is  a  corpora- 
tion organized  under  the  provisions  of  diap- 
ter  86,  St  1898  (sections  1771-1791m).  The 
rights  and  franchises  conferred  by  chapter 
4G2,  p.  682,  Laws  1901,  were  in  form  assign- 


•For  other  cases  see  same  topic  and  secUon  NUMBER  In  Dec.  *  Am.  Digs.  1M7  to  date,  A  Reporter  Indeiis 


Digitized  by  LjOOQIC 


wis.) 


IN  BB  SOUTHERN  WISCONSIN  POWER  CO. 


803 


ed  to  said  corporation  after  Its  organization, 
and  before  It  attempted'  to  institute  con- 
demnation proceedings.  In  its  application 
for  the  appointment  of  commissioners  to  ap- 
praise land  for  flowage  purposes  it  set  forth 
tlie  fact  of  its  incorporation  and  of  the 
assignment  of  tlie  aforesaid  franclilse,  and 
also  averred  that  it  was  proceeding  with  the 
construction  of  the  dam  authorized  by  the 
act  In  question,  and  that  it  was  necessary  to 
overflow  certain  described  lands  in  order  to 
carry  out  the  objects  and  purposes  of  such 
act,  and  that  it  was  unable  to  agree  with 
certain  landowners  for  the  purchase,  lease,  or 
use  of  such  lands,  or  for  such  easement  there- 
in as  was  necessary,  or  upon  the  amount  of 
compensation  that  should  be  paid  for  the  tak- 
ing of  such  property.  The  Black  Hawk  Land 
Company  is  the  owner  of  certain  lands  sought 
to  be  condemned  by  the  petitioner,  and  Inter- 
posed an  answer  to  such  petition,  setting 
forth  its  reasons  why  its  lands  should  not 
be  appropriated  by  the  petitioner,  and  moved 
for  an  order  vacating  the  order  appointing 
conmilssloners  in  the  condemnation  proceed- 
ings. The  court  refused  to  set  aside  such  or- 
der, and  from  the  order  denying  the  motion 
to  vacate  this  appeal  is  taken. 

Cary,  Upham  &  Black,  for  appellant  Jones 
&  Schubring,  for  respondent 

BARNES,  J.  (after  stating  the  facts  as 
above).  The  appellant  contends  (1)  that 
chapter  462,  p.  682,  Laws  1901,  violates  sec- 
tion 18,  art  4,  of  the  Constitution  of  Wis- 
consin, because  the  subject  of  the  act  is  not 
expressed  in  the  title;  (2)  that  the  act  of 
1901  violates  section  81,  art  4,  of  our  Con- 
stitution, in  that  it  grants  corporate  powers 
and  privileges;  (3)  that  the  rights  conferred 
by  the  act  in  question  could  not  lawfully  be 
assigned  to  or  be  exercised  by  a  corporation 
because  of  the  restriction  contained  in  Its 
fourth  section ;  (4)  that  the  act  is  a  violation 
of  section  1,  art.  9,  of  the  Wisconsin  Consti- 
tution; (5)  that  the  dam  in  question,  while 
purporting  to  be  in  aid  of  navigation,  is  In 
reality  destructive  of  it  and  constitutes  an 
unlawful  structure  in  a  navigable  stream; 
(6)  that  the  respondent  is  seeking  to  con- 
demn lands  for  a  private  purpose;  (7)  that 
the  order  appointing  commissioners  was 
made  by  a  Judge  who  had  no  right  or  juris- 
diction to  make  the  same. 

1.  The  title  to  chapter  462,  p.  682,  Laws 
1901,  authorizes  certain  persons  therein  nam- 
ed to  build  a  dam  across  the  Wisconsin  river, 
without  specifying  the  particular  place  where 
the  dam  is  to  be  built  It  is  urged  that  the 
act  Is  local,  and  that  the  title  to  such  an  act 
is  defective  and  insufficient  unless  it  refers 
to  the  specific  place  over  which  the  law  is 
to  operate,  and  that  such  place  is  not  suffi- 
ciently localized  in  the  act  In  question  to 
meet  the  requirements  of  section  18,  art  4, 
of  our  Constitution.  In  support  of  such  con- 
tention the  following  cases  in  this  court  are 


cited:    Durkee  v.  City  of  Janesvllle,  26  Wis. 
697,   Anderton  t.   Milwaukee,   82  Wis.  279, 

52  N.  W.  05,  15  L.  R.  A.  830,  and  Milwaukee 
County  v.  Isenrlng,  100  Wis.  9,  86  N.  W.  131, 

53  L.  R.  A.  635. 

In  Durkee  v.  Janesvllle,  and  In  Milwaukee 
County  V.  Isenrlng,  the  object  sought  to  be 
accomplished  by  the  constitutional  provision 
under  consideration  is  pointed  out  In  the 
latter  case  it  is  said  that  the  framers  of  the 
Constitution  "intended  to  guard  against  the 
danger  of  legislation,  affecting  private  or 
local  interests,  being  smuggled  through  the 
Legislature  under  misleading  titles,  by  re- 
quiring every  bill  affecting  such  Interests  to 
be  under  a  title  likely  to  call  attmtlon  of 
the  lawmakers  to  its  character,  and  likewise 
the  attention  of  the  people  affected,  to  the 
end  that  every  member  of  the  Legislatnre 
may  intelligently  participate  in  considering 
such  bin,  and  all  objections  thereto  may  be 
presented."  Substantially  the  same  Idea  is 
expressed  in  Durkee  v.  Janesvllle.  In  the 
latter  case  It  is  also  said :  "The  subject  of  a 
local  act  cannot  be  expressed  in  the  title 
without  a  reference  to  the  place  over  which 
it  Is  to  operate  being  made  therein."  This 
language  is  impliedly  approved  in  the  Isen- 
rlng Case,  and  in  at  least  one  other  case,  to 
which  reference  will  be  hereafter  made.  The 
titles  to  the  acts  before  the  court  in  the  two 
cases  under  consideration,  and  which  were 
condemned,  made  no  attempt  at  localization. 
A  reading  of  such  titles  would  convey  the 
belief  that  the  acts  were  general,  applying 
to  the  entire  state.  There  was  absolutely 
nothing  in  them  to  even  suggest  that  the  pro- 
posed laws  should  have  any  restricted  or 
local  appllcatlpn.  Yet  the  purpose  of  the 
act  Involved  in  the  Janesvllle  Case  was  to 
legalize  certain  acts  of  the  common  council 
of  that  city,  and  the  acts  construed  in  the 
Isenrlng  Case  related  only  to  the  fees  of  the 
sheriff  of  Milwaukee  county. 

In  Anderton  v.  Milwaukee,  supra,  the  act 
Involved  was  held  void  as  being  in  violation 
of  section  1  of  the  fourteenth  amendment  to 
the  federal  Constitution.  The  court  also 
said  that  the  act  was  local,  and  related  to  a 
subject  not  expressed  In  Its  title,  and  hence 
violated  section  18,  art  4,  of  the  Constitu- 
tion of  Wisconsin.  On  what  ground  this 
part  of  the  decision  was  placed  is  not  ap- 
parent The  act  was  entitled  "An  act  to 
authorize  the  city  of  Milwaukee  to  change 
the  grade  of  streets."  Laws  1891,  p.  307,  c. 
254.  The  body  of  the  act  referred  to  a  cer- 
tain limited  district  In  the  city  of  Milwaukee, 
and  appellant  contends  that  it  was  held  void 
because  the  particular  district  affected  was 
not  set  forth  In  the  title.  If  such  was  the 
view  of  the  court  this  case  goes  to  a  greater 
extreme  than  any  other  that  has  been  called 
to  our  attention  in  requiring  the  title  to  a 
local  act  to  designate  the  exact  locality  to 
be  affected,  and  comes  nearest  to  being  au> 
thority  in  point  upon  the  proposition  to 
which  it  is  cited.     An  examination  of  the 


Digitized  by  VjOOQ  l€ 


804 


122  NORTHWESTERN  REPORTER. 


(Wla. 


briefs  filed  In  that  case  showa  that  the 
principal  ground  of  attack  upon  the  law, 
as  being  a  violation  of  section  18,  art  4,  was 
not  because  the  title  was  not  soffldently 
localized.  It  was  urged  that,  while  the  act 
purported  to  authorize  the  city  to  change  the 
grade  of  its  streets.  It  in  fact  conferred  no 
power  in  this  behalf  that  the  city  did  not  al- 
ready possess;  that  under  the  existing  laws 
owners  of  property  abutting  on  streets  were 
entitled  to  damages  sustained  by  reason  of  a 
change  In  grade,  and  that  the  act  in  ques- 
tion attempted  to  repeal  such  laws  as  to 
about  one-fortieth  of  the  street  frontage  in 
the  city,  leaving  them  in  full  force  as  to  the 
remainder,  and  that  the  title  to  the  act  was 
misleading,  in  that  the  body  thereof  sought 
to  accomplish  another  and  an  entirely  dif- 
ferent purpose  from  that  expressed  in  the 
titlfe  We  thinls  the  misstatement  of  the 
purpose  of  the  law  In  Its  title  constituted  the 
substantial  objections  to  its  validity  under 
section  18,  art  4,  of  the  Constitution.  But 
assuming  that  the  court  decided  that  the 
title  did  not  sufficiently  localize  the  act  there 
is  an  important  distinction  between  the  An- 
derton  Case  and  the  one  we  are  presently 
considering.  A  reading  of  the  title  to  the 
act  there  involved  would  lead  the  reader 
to  believe  that  whatever  was  its  purpose,  it 
affected  the  entire  city  of  Milwaukee,  and 
not  a  very  small  fraction  of  it  A  resident 
of  the  city  reading  such  title  would  have  no 
reason  to  believe  that  the  locality  in  which 
he  owned  property  was  affected  to  any  great- 
er extent  than  any  other  locality  in  the  city. 
On  the  other  hand,  chapter  462,  p.  682,  Laws 
1901,  authorized  the  building  of  but  a  single 
dam.  The  title  to  the  act  informs  every  one 
that  the  act  authorizes  the  building  of  but 
one  dam,  and  that  such  dam  is  to  be  located 
on  the  Wisconsin  river.  It  misleads  no  one, 
although  It  is  not  as  definite  as  to  location 
as  It  might  be  mad& 

An  act  of  the  Legislature  should  not  be 
adjudged  Invalid  except  upon  clear  and  un- 
mistakable grounds,  and  the  title  of  a  private 
or  local  act  should  be  liberally  construed, 
and  the  act  should  not  be  declared  void  mere- 
ly because  such  title  does  not  express  the 
subject  as  fully  or  as  unequivocally  as  pos- 
sible. Mills  ▼.  Charieton,  29  Wis.  400,  9 
Am.  Rep.  578.  The  title  to  an  act  must  be 
liberally  .construed,  giving  all  reasonable 
leeway  for  the  exercise  of  legislative  dis- 
cretion. It  should  not  be  held  Insufficient  if 
a  reasonable  doubt  exists  as  to  Its  sufficiency. 
It  is  only  where  the  title  is  so  insufficient  and 
so  defective  as  not  to  reasonably  suggest  the 
purpose  of  the  act  it  covers,  and  where  a 
reading  of  the  act  will  disclose  provisions 
that  are  clearly  outside  of  its  title,  that  it 
will  be  held  invalid.  Milwaukee  County  v. 
Isenring,  100  Wis.  9,  24,  85  N.  W.  131,  53  L. 
E.  A.  035.  The  title  to  a  legislative  act 
must  not  only  be  liberally  construed,  but 
the  act  should  not  be  condemned  as  in- 
aufficient  because  of  the  title,  unless,  giving 


such  title  the  largest  scope  which  reason  will 
permit  something  is  found  In  the  body  of 
the  act  which  is  nether  within  the  literal 
meaning  nor  the  spirit  of  the  title,  nor  ger- 
mane thereto.  "Courts  cannot  sit  in  Judg- 
ment upon  the  work  of  the  Legislature,  and 
decide  one  of  Its  act  unconstitutional,  merely 
because  the  title  thereof  is  not  as  compr^oi- 
sive  as  it  might  have  been  made.  Within 
all  reasonable  boundaries  legislative  discre- 
tion in  that  "field  cannot  be  rightfully  inter- 
fered with."  Diana  Shooting  Club  v.  Lamo- 
reux,  114  W;is.  44,  48,  89  N.  W.  880,  882,  91 
Am.  St  Rep^  898.  In  this  case  the  following 
language  of  the  New  York  Court  of  Appeals, 
in  People  v.  Banks,  67  N.  Y.  668,  572,  is  cited 
with  approval:  "The  Constitution  does  not 
require  the  title  of  a  private  or  local  bill 
to  disclose  or  shadow  forth  the  character  of 
the  proposed  legislation,  its  full  scope  and 
purpose,  and  to  make  known  the  several  in- 
terests which  may  be  directly  or  indirectly 
affected  by  it  so  as  to  attract  attention  and 
give  notice  of  all  that  is  to  be  accomplished 
by  the  proposed  act  The  Constitution  re- 
quires the  subject  of  the  act  to  be  expressed 
in  tlte  title,  but  leaves  the  mode  of  expressing 
it  wholly  to  the  discretitm  of  the  L^sla- 
ture." 

Passing  from  these  general  statements,  in- 
dicating the  attitude  with  which  courts  ap- 
proach such  a  question  as  we  have  before  us. 
to  specific  Instances  where  the  sufficiency  of 
the  titles  to  private  and  local  laws  were 
passed  upon,  we  find  that  the  decisions  in 
specific  cases  are,  with  great  unanimity,  In 
entire  harmony  with  the  general  rules  advert- 
ed to. 

Chapter  299,  p.  418,  Priv.  &  Loc.  Laws 
1855,  was  entitled  "An  act  to  incorporate 
the  Sugar  River  Valley  Railroad  Company." 
By  chapter  38,  p.  94,  Priv.  &  Loc.  Laws  1858, 
it  was  provided  that  the  privileges  granted 
by  the  act  should  cease  at  the  expiration  of 
eight  years  from  the  passage  of  the  act  un- 
less the  company  should  have  constructed  10 
miles  of  its  road.  Chapter  273,  p:  657,  Priv. 
&  Loc.  Laws  1870,  was  entitled  "An  act  to 
revive  and  amend  the  act  to  incorporate  the 
Sugar  River  Valley  Railroad,  approved  March 
20,  1855,  and  to  authorize  certain  towns 
therein  named  to  aid  in  the  construction  of 
said  railroad."  It  will  be  observed  that  the 
towns  to  which  the  law  was  to  apply  were 
not  named  in  the  title  to  tlie  act  but  it  was 
held  that  the  title  sufficiently  localized  the 
act,  and  that  it  was  not  subject  to  the  objec- 
tion that  was  held  fatal  In  Durkee  v.  Jaues- 
vllle,  supra.  Phillips  t.  Town  of  Albany,  23 
Wis.  340. 

Chapter  25,  p.  42,  Gen.  Laws  1870,  was  en- 
titled "An  act  to  authorize  certain  counties, 
towns,  cities  and  villages  to  aid  the  Milwau- 
kee &  Northern  Railway  Company."  It  was 
contended  that  this  act  was  void  because  the 
subject  thereof  was  not  sufficiently  express- 
ed in  the  title.  The  municipalities  affect- 
ed by  the  act  were  not  named  In  the  title; 


Digitized  by  VjOOQ  l€ 


wis.) 


IN  RE  SOUTHERN  WISCONSIN  POWER  CO. 


805 


and  conid  be  ascotalned  only  by  a  refer- 
ence to  the  body  of  the  act  The  court  said: 
"We  do  not  think  the  provision  In  the  Consti- 
tution requires  any  such  particularity  In  the 
title,  and  It  would  certainly  be  very  Incon* 
venlent  to  observe  It  In  practical  legflslatlon." 
lAwson  V.  M.  &  N.  Ry.  Co.,  80  Wis.  697,  600. 

Chapter  398,  p.  935,  Priv.  &  Loc.  Laws 
1868,  was  entitled  "An  act  to  amend  chapter 
170  of  the  private  and  local  laws  of  1857,  en- 
titled 'An  act  to  Incorporate  the  Yellow  Riv- 
er  Improvement  Company'  approved  March 
2,  1857."  This  act  authorized  the  tmprove- 
ment  of  a  navigable  stream  and  the  build- 
ing of  dams  thereon.  The  court  in  constru- 
ing It  said  that  It  "must,  under  the  decisions 
of  this  court,  be  held  to  be  a  local  act,  with- 
in the  meaning  of  the  constitutional  provi- 
sion above  referred  to."  Section  18,  art.  4, 
Const  Counsel  for  appellant  cite  this  de- 
cision in  support  of  the  proposition  that 
chapter  462,  p.  682,  Laws  1901,  Is  a  local 
act  Nothing  is  said  in  the  title  to  indicate 
that  the  act  confers  power  to  construct  dams 
it  any  particular  point  on  the  Yellow  river, 
nor  in  fact  to  construct  any  dams  at  all,  ex- 
cept as  such  power  might  be  inferred  from 
the  fact  that  a  corporation  is  created,  and 
yet  the  title  to  the  act  was  held  to  embrace 
the  subjects  embodied  in  it,  among  them  the 
power  to  erect  dams.  Yellow  River  Improve- 
ment Co.  V.  Arnold,  46  Wis.  214,  49  N.  W. 
971.  The  court  while  holding  the  act  local, 
said:  "The  real  question  of  any  difficulty 
in  this  case  Is  the  one  discussed  in  Mills  ▼. 
Charleton,  supra;  and  that  Is  whether  the 
title  of  the  act  Is  so  specific  and  restricted 
that  It  cannot  be  said  to  Indicate  any  In- 
tention to  confer  such  rights  upon  the  cor- 
poration, and  therefore  the  subject  is  not 
expressed  therein." 

Chapter  454,  p.  1027,  Priv.  &  Loc.  Laws 
1867,  was  entitled  "Ail  act  to  Incorporate 
the  Mechanics'  Union  Manufacturing  Com- 
pany." Said  corporation  was  empowered, 
among  other  things,  "to  construct  and  main- 
tain all  such  dam  or  dams,  canal  or  canals, 
waterways,  reservoirs,  flumes  and  races  as 
may  be  necessary  In  the  business  operations 
of  said  company,  and  may  lease  or  sell  any 
surplus  water  or  water  power  created  by 
their  said  dam  or  dams;  provided  that  said 
company  shall  have  no  authority  to  build 
or  erect  the  dam  or  dams  hereby  authorized 
except  across  Rock  river,  at  or  near  Hori- 
con,  in  the  county  of  Dodge."  Still  another 
provision  of  the  act  authorized  the  corpora- 
tion "to  keep  and  maintain  the  dam  across 
Rock  river  now  erected  in  the  village  of  Hor- 
Icon,  In  the  county  of  Dodge,  in  case  the 
person  or  persons,  body  corporate  or  politic 
owning  said  dam  shall  convey  their  right, 
title  «nd  interest  in  and  to  the  same,  and  the 
parcels  of  lands  on  which  It  abuts,  to  the 
company  hereby  created."  This  act  was  be- 
fore this  court  and  its  constitutionality  was 
attained  on  the  ground  that  it  violated  sec- 
tion 18>  art  4,  of  our  Constitution,  and  it  was 


upheld  In  an  elaborate  opinion,  in  which 
the  authorities  on  this  subject  In  this  and 
other  courts  are  reviewed.  Diana  Shooting 
Club  V.  Lamoreux,  114  Wis.  44,  80  N.  W. 
880,  91  Am.  St  Rep.  87a  It  is  true,  It  is  said 
In  the  opinion  In  that  case  that  the  act  Is 
private  rather  than  local.  This  portion  of 
the  decision  either  overlooked  or  overruled 
the  first  quoted  portion  of  Yellow  River  Im- 
provement Company  v.  Arnold,  supra.  These 
two  acts  legitimately  fall  under  the  same 
classification.  If  one  is  private,  the  other 
is,  and  If  one  Is  local,  the  other  is.  Both 
were,  acts  creating  corporations.  Both  au- 
thorized the  construction  of  dams.  The  Yel- 
low river,  being  capable  of  floating  logs, 
was  navigable  In  fact  under  a  long  line  of 
decisions.  Whlsler  v.  Wilkinson,  22  Wis. 
573;  Sellers  v.  Union  Lumbering  Co.,  39  Wis. 
525;  Olson  v.  Merrill,  42  Wis.  203;  A.  C. 
Conn  Co.  v.  Lumber  Co.,  74  Wis.  652,  43 
N.  W.  660;  Falls  Mfg.  Co.  v.  Improvement 
Co.,  87  Wis.  134,  58  N.  W.  257;  Willow  River 
Club  T.  Wade,  100  Wis.  86,  76  N.  W.  273.  42 
L  R.  A.  306.  The  Rock  river  at  Horlcon 
was  also  a  navigable  stream.  Se<;tlon  1007, 
St  1898;  In  re  Horicon  Drainage  District 
136  Wis.  227,  232,  116  N.  W.  12.  We  fall  to 
discover  any  substantial  ground  for  holding 
one  of  these  acts  local  and  the  other  private 
and  not  local,  and  we  think  these  two  acts 
and  chapter  462,  p.  682,  Laws  1901,  fall  with- 
in the  same  category  In  this  regard.  If  one 
is  local,  then  the  others  are,  and  if  one  is 
private,  the  same  is  true  of  the  others ;  and 
It  is  significant  that  the  titles  Involved  In  the 
cases  of  the  Yellow  River  Improvement 
Company  v.  Arnold  and  Diana  Shooting 
Club  V.  Lamoreux  are  much  more  general 
In  their  scope  and  character,  and  much  more 
likely  to  mislead  the  Legislature  and  the 
public  as  to  the  character  of  the  legislation 
than  Is  the  title  to  the  act  under  considera- 
tion in  the  present  case. 

We  fall  to  find  any  case  where  such  a  ti- 
tle as  Is  here  Involved  has  been  condemned 
by  this  court  As  has  been  said,  there  are  a 
number  of  cases  where  titles  more  ambigu- 
ous have  been  upheld.  The  general  lan- 
guage used  in  Durkee  v.  JanesvUle  that  the 
title  to  a  local  act  must  refer  to  the  place 
over  which  the  law  is  to  operate  must  be 
construed  with  reference  to  the  facts  In  that 
particular  case.  The  same  general  language 
is  used  In  Yellow  River  Improvement  Com- 
pany v.  Arnold,  and  yet  the  court  there  held 
that  a  title  which  simply  authorized  the  in- 
corporation of  a  company  was  broad  enough 
to  enable  the  Legislature  to  confer  on  such 
company  by  the  act  the  power  to  dam  a  navi- 
gable stream,  because  the  power  conferred 
was  properly  connected  with,  or  necessary 
or  pertinent  to,  the  general  objects  expressed 
In  the  title.  We  entertain  no  doubt  that 
Durkee  v.  JanesvUle  and  Milwaukee  County 
V.  Isenrlng  were  correctly  decided.  The  ti- 
tles Involved  In  each  of  these  cases  were 
such  as  conveyed  the  idea  that  the  propos- 

Digitized  by  LjOOQ  l€ 


806 


122  NORTHWESTERN  REPORTER. 


(Wis. 


ed  laws  were  general,  and  applicable  to  the 
entire  state.  There  was  nothing  about  the 
titles  to  suggest  that  the  acts  were  either 
private  or  iQcal,  although  one  of  the  acts 
related  to  a  single  city,  and  two  of  them  re- 
lated to  a  single  county  in  the  state.  The 
law  here  involved  is  not  localized  in  the  ti- 
tle to  the  extent  it  might  be,  but  stiU  it  Is 
localized.  It  expressly  negatives  the  idea 
that  it  is  of  state-wide  application,  ai>d  in- 
forms all  persons  who  read  it  that  the  body 
of  the  act  refers  to  some  specified  point  on 
the  Wisconsin  river.  It  Is  true  that  this 
river  passes  through  the  entire  length  of 
our  state,  and  is  several  hundred  miles  long. 
But  it  is  also  true  that  there  are  compara- 
tively few  points  thereon  suitable  for  dams, 
so  that  the  wide  scope  of  the  title  is  more 
apparent  than  real.  We  think  a  substan- 
tial distinction  between  this  case  and  the 
cases  relied  on  by  appellant  Is  this:  A  resi- 
dent of  Milwaukee  county  reading  the  titles 
to  the  acts  involved  In  the  Isenring  Case,  or 
a  resident  of  JanesvUle  reading  the  title  to 
the  act  involved  In  the  Durkee  Case,  would 
have  no  reason  to  suppose  that  his  domicile 
was  affected  by  these  acts  to  any  greater  ex- 
tent than  any  other  portion  of  the  state, 
while  In  the  instant  case  the  reader  Is  ad- 
vised that  it  Is  proposed  to  erect  a  dam  at 
some  point  on  the  Wisconsin  river.  If  he 
were  Interested  In  the  subject,  he  would  nat- 
urally turn  to  the  act  Itself  for  further  in- 
formation. In  the  one  case  the  title  Is  pos- 
itively misleading;  in  the  other  it  does  not 
mislead  at  all.  It  is  not  as  specific  as  it 
might  be  made,  but  it  Is  sufficiently  specific 
to  put  the  reader  on  inquiry  as  to  what  the 
real  nature  and  character  of  the  law  Is. 
The  power  conferred  by  the  act  to  build  a 
dam  at  a  definite  location  Is  pertinent  to, 
and  is  properly  connected  with,  the  general 
object  expressed  in  the  title,  which  Is  the 
test  adopted  in  the  Yellow  River  Improve- 
ment Company  Case.  In  view  of  the  defer- 
ence that  this  court  must  pay  to  acts  of  the 
Legislature,  and  in  view  of  the  decided  cases 
in  this  court,  we  must  hold  that  the  title  to 
the  act  in  question  does  not  run  counter  to 
the  reasons  given  In  Durkee  v.  JanesvUle 
and  In  Milwaukee  County  v.  Isenring,  for 
the  adoption  of  section  18,  art  4,  of  our  Con- 
stitution, and  that,  assuming  such  act  to  be 
local  rather  than  private,  the  subject  of  the 
act  Is  sufficiently  localized  in  its  title  to 
meet  the  constitutional  requirement. 

It  is  next  urged  that  the  respondent  is 
claiming  corporate  powers  and  privileges 
granted  by  a  special  law,  which  Is  prohibit- 
ed by  section  31,  art  4,  of  the  Constitution. 
It  is  argued  in  support  of  this  contention 
that  the  Legislature  could  not  by  special 
act  create  a  corporation  and  confer  such 
powers  upon  it,  or  confer  them  directly  up- 
on a  corporation  organized  under  chapter  86, 
St  189S,  and  that  a  corporation  cannot  be 
formed  for  a  purpose  not  authorized  by  chap- 
ter 86,  and  cannot  exercise  powers  or  func- 


tions not  therein  provided  for.  While  the 
franchise  here  granted  was  a  legislative 
grant.  It  was  not  a  corporate  power  or  priv- 
ilege within  the  meaning  of  section  31,  art 
4,  of  the  Constitution.  If  such  a  franchise 
were  granted  to  a  corporation.  It  would  be- 
come its  property,  but  would  not  be  essen- 
tial to  Its  corporate  existence.  The  clause 
prohibiting  the  granting  of  corporate  powers 
or  privileges  simply  prohibits  the  grant  of 
corporate  charters  by  special  act  A  fran- 
chise is  not  essentially  corporate,  and  it  is 
not  the  grant  of  a  franchise  that  is  prohibit- 
ed by  the  Constitution,  but  the  grant  of  a 
corporate  franchise.  The  sale  of  the  fran- 
chise here  granted  by  the  corporation  would 
not  destroy  its  corporate  existence.  Linden 
Land  Co.  v.  M.  B.  R.  &  L.  Co.,  107  Wis.  493, 
514,  83  N.  W.  851 ;  State  ex  rel.  v.  PortaRe, 
107  Wis.  441,  83  N.  W.  697 ;  Black  River  Im- 
provement Co.  V.  Holway,  87  Wis.  584.  59 
N.  W.  126;  Railroad  Cases,  35  Wis.  425,  560. 
That  the  grantees  of  a  franchise  might  law- 
fully convey  the  same  to  a  corporation  or- 
ganized under  the  general  law  was  decided 
in  Underwood  Lumber  Co.  v.  Pelican  Boom 
Co.,  76  Wis.  76,  82,  45  N.  W.  1&  Besides 
this  act  specifically  provides  that  no  cor- 
porate powers  are  granted,  or  Intended  to  be 
granted,  by  it 

The  Linden  Land  Company  Case  definitely 
decided  that  a  franchise  might  be  conferred 
on  a  corporation  already  created.  If  this  be 
true,  then  no  good  reason  is  apparent  why 
a  franchise  might  not  be  assigned  to  such  a 
corporation,  assuming  that  the  scope  of  its 
articles  of  incorporation  was  such  as  to  per- 
mit it  to  take  the  assignment  On  the  oral 
argument  counsel  conceded  that  their  posi- 
tion is  not  well  taken  If  the  court  follows 
the  decision  in  the  Linden.  Land  Company 
Case.  That  case  was  important,  was  well 
presented  at  the  bar,  and  was  well  consid- 
ered by  the  court,  and  doubtless  many  valu- 
able property  rights  have  been  acquired  on 
the  strength  of  it,  and  it  should  require  a 
strong  showing  to  now  overturn  it.  The  de- 
cision does  not  appear  to  be  in  harmony  with 
Stevens  Point  Boom  Company  v.  Rellly,  44 
Wis.  295.  This  case  is  not  referred  to  in  the 
opinion,  but  it  appears  from  the  statement 
of  the  case  that  it  was  cited  to  the  court, 
and  it  must  be  considered  as  overruled  In  so 
far  as  It  holds  that  a  franchise  cannot  be 
granted  to  an  existing  corporation.  We  do 
not  think  that  the  decision  In  the  Linden 
Land  Company  Case  should  now  be  disturb- 
ed. In  reference  to  the  assignability  of  the 
franchise  the  law  granting  it  provides  that 
it  may  be  assigned,  and  the  general  statute 
(section  1775a,  St  1898)  authorizes  corpora- 
tions to  take  by  purchase  or  assignment  the 
privileges  or  franchises  granted  to  individu- 
als either  before  or  after  that  statute  was 
passed,  so  that  we  have  a  general  law  ex- 
pressly authorizing  corporations  organized 
under  chapter  86  to  take  an  assignment  of 


Digitized  by  VjOOQ  l€ 


wis.) 


IN  RE  SOUTHERN  WISCONSIN  POWER  CO. 


807 


such  a  franchise  as  was  granted  by  chapter 
462,  p.  682,  Laws  1901.  Section  1771,  St. 
1898,  after  enumerating  the  specific  purposes 
for  which  corporations  may  be  organized, 
provides  generally  that  they  may  be  organ- 
ized for  any  lawful  business  or  purpose.  Sec- 
tion 1775a,  St  1898,  has  made  the  acquire- 
ment and  use  of  a  franchise  such  as  Is  here 
involved  a  lawful  business  or  purpose,  If  it 
could  be  made  lawful  by  statute  law,  and 
we  think  it  could. 

3.  Section  4,  a  462,  p.  683,  Laws  1901,  pro- 
vided that  no  corporate  powers  were  grant- 
ed, or  intended  to  be  granted,  by  the  act, 
and  that  It  should  not  be  construed  or  deem- 
ed to  grant  such  powers.  Appellant  main- 
tains that  this  section  should  be  construed  as 
a  prohibition  against  the  acquirement  or  ex- 
ercise, by  a  corporate  entity,  of  the  rights 
and  franchises  granted.  We  do  not  thinly  so. 
Such  la  not  the  natural  meaning  or  Import 
of  the  words  used.  Had  the  Legislature. In- 
tended to  prevent  a  corporation  from  ac- 
quiring or  exercising  the  rights  and  privileg- 
es granted.  It  would  have  been  an  easy  mat- 
ter to  explicitly  express  such  intent  It  is 
not  probable  that  It  would  have  been  left 
to  courts  to  divine  such  purpose  by  somewhat 
farfetched  conjecture.  It  Is  more  reasonable 
to  suppose  that,  through  overcaution  on  the 
part  of  the  persons  drafting  the  bill,  or  on 
the  part  of  the  Legislature  that  passed  It,  it 
was  intended  to  forestall  any  possible  at- 
tempt to  claim  that  the  act  In  fact  created 
a  corporation,  and  granted  corporate  privi- 
leges thereto. 

4.  It  Is  next  asserted  that  chapter  462,  p. 
682,  Laws  1901,  violated  section  1,  art.  9, 
of  our  state  Constitution,  which  provides: 
"And  the  river  Mississippi  and  the  navi- 
gable waters  leading  Into  the  Mississippi  and 
St  Lawrence,  and  the  carrying  places  be- 
tween the  same,  shall  be  common  highways 
and  forever  free,  as  well  to  the  Inhabitants 
of  the  state,  as  to  the  citizens  of  the  United 
States,  without  any  tax.  Impost  or  tl"ty 
therefor."  It  is  urged  that  the  act  of  1001 
authorized  the  construction  of  a  dam  from 
bank  to  bank  across  the  channel  of  a  navi- 
gable stream  which  discharges  Its  waters  in- 
to the  Mississippi  river,  and  that  such  dam 
is  an  obstruction  in  the  river,  and  prevents 
the  free  navigation  thereof  guaranteed  by 
the  Constitution,  and  by  article  4  of  the  ordi- 
nance of  1787.  This  objection  to  the  law  Is 
answered  by  numerous  decisions  of  the  Su- 
preme Court  of  the  United  States.  These  de- 
cisions establish  the  following  propositions: 
(a)  Under  the  commerce  clause  of  the  fed- 
eral Constitution  the  Congress  of  the  United 
States  has  Jurisdiction  over  all  navigable  wa- 
ters therein,  (b)  As  to  navigable  streams  en- 
tirely within  the  borders  of  a  single  state, 
such  state  has  plenary  power  In  the  absence 
of  congressional  action,  but  Congress  Is  not 
concluded  by  anything  that  the  state,  or  In- 
dlvldiials  by  its  authority,  may  have  done 
from    assuming    entire    control    over    such 


streams,  and  abating  any  erections  that  may 
have  t>eea  made,  and  preventing  others  from 
being  made,  (c)  In  the  absence  of  legisla- 
tion by  Congress  on  the  subject  a  statute 
of  a  state  which  authorizes  the  construction 
of  a  dam  across  a  navigable  river  wholly 
within  such  state  Is  constitutional,  (d) 
There  must  be  a  direct  statute  of  the  Unit- 
ed States  in  order  to  bring  within  the  scope 
of  its  laws  obstructions  and  nuisances  in  a 
qavlgable  stream  wholly  within  a  state,  (e) 
The  clause  In  the  Constitution,  providing  that 
the  navigable  waters  therein  referred  to 
"shall  be  common  highways  and  forever 
free,"  etc.,  does  not  refer  to  physical  obstruc- 
tions of  these  waters,  but  refers  to  political 
regulations  which  would  hamper  the  free- 
dom of  commerce.  Willamette  I.  B.  Co.  v. 
Hatch,  125  U.  S.  1,  8  Sup.  Ct  811,  31  L.  Ed. 
629;  Pound  v.  Turck,  95  U.  S.  459,  24  L. 
Ed.  525;  Wilson  v.  Blackbird  Creek  Marsh 
Co..  2  Pet  245.  7  L.  Ed.  412;  Oilman  v.  Phil- 
adelphia, 3  Wall.  713,  18  L.  Ed.  96;  Monon- 
gahela  Nav.  Co.  v.  U.  &,  148  U.  S.  312,  13 
Sup.  Ct  622,  37  L.  Ed.  463;  Montgomery 
V.  Portland,  190  U.  S.  89,  23  Sup.  Ct  735,  47 
L.  Ed.  965.  The  case  of  Pound  v.  Turck, 
supra,  rose  out  of  an  act  of  the  Wisconsin 
Legislature  authorizing  the  construction  of  a 
dam  across  the  Chlpjiewa  river,  a  navigable 
stream,  and  Involved  the  construction  of  sec- 
tion 1,  art  9,  of  our  Constitution.  This  court 
has  also  held  that  it  is  within  the  power  of 
the  Legislature  of  the  state  to  authorize  the 
construction  of  a  dam  across  a  navigable 
stream.  Wisconsin  River  Improvement  Co. 
V.  Manson,  43  Wis.  255,  28  Am.  Rep.  542; 
Black  River  Flooding-Dam  Ass'n  v.  Ketchum, 
54  Wis.  313,  11  N.  W.  551;  Black  River  Im- 
provement Co.  V.  La  Crosse  B.  &  T.  Co.,  54 
Wis.  659,  11  N.  W.  443,  41  Am.  Rep.  66; 
J.  S.  Keator  Lumber  Co.  v.  St  Croix  Boom 
Corp.,  72  Wis.  62,  38  N.  W.  529,  7  Am.  St 
Rep.  837.  The  dam  here  permitted  to  be 
erected  is  authorized  In  aid  of  navigation, 
and  the  power  of  the  Legislature  Is  plenary 
to  empower  individuals  to  construct  dams  in 
navigable  streams  of  the  state  for  such  a 
purpose.  Falls  Mfg.  Co.  v.  Oconto  River  Im- 
provement Co.,  87  Wis.  134,  and  cases  cited 
on  page  150  of  the  opinion,  58  N.  W.  257, 
261 ;  In  re  Dancy  Drainage  District,  129 
Wis.  129,  139,  108  N.  W.  202. 

5.  It  is  next  urged  that  while  the  act 
specifies  that  its  purpose  is  to  Improve  the 
navigation  of  the  Wisconsin  river  above  the 
dam,  such  dam  is  in  fact  an  obstruction  to 
navigation,  extending  as  It  does  from  bank 
to  bank,  and  being  15  feet  in  height,  that  its 
real  purpose  is  to  create  hydraulic  power, 
and  that  the  navigation  of  the  river  cannot 
be  obstructed  for  any  such  purpose.  It  has 
l>een  held  that  the  Legislature  is  at  least 
primarily  the  Judge  of  the  necessity  for  the 
proposed  Improvement,  and  that  when  It 
delegates  such  a  power,  and  the  state  does 
not  question  that  the  Improvement  made  is 
In  conformity  with  the  power  delegated,  nei- 


Digitized  by  VjOOQ  l€ 


808 


122  NORTHWESTERN  REPORTER. 


(Wla. 


ther  the  necessity  nor  the  nsefulness  of  the 
improTement,  nor  the  maimer  in  which  It  Is 
made,  can  be  called  In  question  by  private 
I>arties.  Wisconsin  River  Improvement  Co. 
v.  Manson,  43  Wis.  255,  265,  28  Am.  Rep. 
542;  Falls  Mfg.  Co.  T.  Oconto  River  Im- 
provement Co.,  87  Wis.  134,  151,  58  N.  W. 
257;  Underwood  Lomber  Co.  v.  Pelican 
Boom  Co.,  76  Wis.  76,  85,  45  N.  W.  18; 
J.  S.  Keator  Lumber  Co.  v.  St  Croix  Boom 
Corp.,  72  Wis.  62,  81.  38  N.  W.  529,  7  Am. 
St  Rep.  837;  Cohn  v.  Wausau  Boom  Co.,  47 
Wis.  314,  326,  2  N.  W.  546;  Black  River  Im- 
provement Co.  V.  La  Crosse  B.  &  T.  Co.,  54 
Wis.  659,  686,  11  N.  W.  443,  41  Am.  Rep. 
66.  It  is  true  that  none  of  the  cases  cited 
involved  the  rights  of  a  landowner  whose 
property  It  was  sought  to  condemn  in  aid 
of  the  alleged  improvement  But  the  same 
rule  with  little,  if  any,  variation  has  been 
applied  In  a  condemnation  proceeding  against 
a  landowner  (C.  &  N.  W.  Ry.  Co.  v.  More- 
house, 112  Wis,  1,  9,  87  N.  W.  849,  56  L.  R. 
A.  240,  88  Am.  St  Rep.  918),  and,  in  an  ac- 
tion brought  by  a  landowner  whose  lands 
were  overflowed,  to  abate  a  dam  authorized 
by  the  Legislature.  Allaby  v.  Mauston  E. 
S.  Co.,  135  Wis.  345,  852,  116  N.  W.  4,  16  L. 
R.  A.  (N.  S.)  420.  A  dam  authorized  for 
the  creation  of  hydraulic  power,  generated 
for  the  purpose  of  sale,  is  authorized  for  a 
public  purpose.  Wisconsin  River  Improve- 
ment Co.  V.  Pier,  137  Wis.  325,  118  N.  W. 
K>7.  The  question  of  bow  far  the  Legisla- 
ture might  destroy  the  public  use  of  naviga- 
tion. In  aid  of  the  public  use  of  generating 
hydraulic  power,  is  not  Involved  under  the 
facts  In  this  case,  because  It  appears  from 
the  evidence  that  the  dam  did  Improve  the 
navigation  of  the  stream  above  its  location, 
while  the  alleged  Injury  which  the  dam 
caused  to  navigation  was  inconsequential 
and  largely  theoretical. 

6.  It  is  next  urged  that  respondent  is  seek- 
ing to  condemn  lands  for  a  private  use.  It 
Is  argued  that  whether  the  particular  use 
for  which  property  is  sought  to  be  condemn- 
ed is  public  or  private  is  a  question  of  fact 
the  ultimate  decision  of  which  rests  with 
the  courts,  and  the  following  cases  are  cited 
in  support  of  the  contention  that  the  ques- 
tion urged  is  a  Judicial  one:  Wisconsin  Wa- 
ter Co.  V.  Wlnans,  85  Wis.  26,  54  N.  W.  1003, 
20  L.  R.  A.  662,  39  Am.  St  Rep.  813;  Prlewe 
V.  Wisconsin  S.  L.  &  L  Co.,  93  Wis.  634,  67 
U.  W.  918,  33  L.  B.  A.  645;  s.  c,  103  Wis. 
537,  79  N,  W.  780,  74  Am.  St  Rep.  904; 
Matter  of  Niagara  Falls,  etc.,  Ry.  Co.,  108 
N.  y.  375,  15  N.  E.  429.  The  right  of  the 
courts  to  decide  whether  the  purpose  is  pub- 
lic for  which  it  is  proposed  to  condemn  prop- 
erty is  undoubted.  Such  a  rule  does  not 
preclude  the  courts  from  according  proper 
deference  to  legislative  declarations  as  to 
what  constitutes  a  public  purpose.  As  here- 
tofore stated,  this  court  has  uniformly  held 
that  where  a  dam  is  constructed  In  a  navi- 
gable stream  In  aid  of  navigation,  the  pur- 


pose of  its  construction  Is  public,  and  also 
that  the  taking  of  property  for  the  genera- 
tion of  electric  power  for  the  purpose  ot 
sale  is  a  taking  of  property  for  a  public 
purpose.  The  mere  fact  that  a  dam  would 
not  have  been  constructed  were  it  not  for 
the  power  generated  by  it  does  not  argue 
that  the  dam  will  not  in  fact  aid  navigation 
when  bnUt,  and  such  a  structure  may  be 
entirely  lawful  even  though  the  legislative 
authorization  for  its  construction  be  limited 
to  the  purpose  of  aiding  navigation.  Wis- 
consin River  Improvement  Co.  v.  Pier,  su- 
pra. We  think  the  evidence  presented  on 
the  hearing  fairly  shows  that  the  construc- 
tion of  the  dam  in  question  will  aid  the 
navigation  of  the  river  above  the  location 
of  the  dam,  and  will  not  materially  interfere 
with  It  at  or  below  such  point  <u>d  that  ei- 
ther of  the  purposes  specified  in  the  act  is 
public,  so  that  the  power  of  eminent  domain 
was  legally  conferred  on  the  owners  of  the 
franchise. 

7.  The  condemnation  proceeding  was  i>end- 
ing  in  the  Sixth  Judicial  circuit  Owing  to 
the  illness  of  the  Judge  of  that  circuit  the 
Judge  of  the  Eighteenth  Judicial  circuit  was 
called  in  to  hear  the  petition  for  the  appoint- 
ment of  commissioners,  and  made  the  order 
appointing  them.  It  Is  urged  that  under  the 
provisions  of  sections  5,  6,  and  7,  art.  7,  of 
our  Constitution  a  circuit  Judge  cannot  ex- 
ercise any  of  the  powers  of  his  office  outside 
of  his  own  circuit,  unless  there  are  other 
provisions  In  the  Constitntlon  authorizing 
him  to  do  so,  and  that  the  only  provision 
found  which  does  authorize  such  action 
is  section  11,  art  7,  which  empowers  Judges 
of  the  circuit  courts  to  hold  court  for  each 
other.  It  is  argued  that  the  holding  of  court 
within  the  purview  of  the  section  last  re- 
ferred to  means  holding  one  of  the  regular 
terms  of  the  circuit  court  and  does  not  per- 
mit the  Judge  of  one  circuit  to  make  orders 
at  chambers  in  another  circuit  It  is  true 
there  is  a  distinction  between  holding  court 
and  exercising  Judicial  iK)wers  out  of  court 
Still  we  think  it  is  In  the  interest  of  the 
speedy  administration  of  Justice  and  of 
sound  public  policy  that  the  words  "may 
hold  courts,"  found  In  sectiori  11,  art  7,  be 
liberally  construed.  No  good  reason  is  ap- 
parent why  a  circuit  Jndge  of  one  circuit 
should  be  empowered  to  hold  court  in  an- 
other, but  should  be  denied  the  right  to 
transact  other  Judicial  business.  Consider- 
ing the  purpose  which  the  framers  of  the 
Constitution  undoubtedly  had  In  view,  we 
conclude  that  the  authority  conferred  on 
Judges  to  hold  court  for  each  other  was 
meant  to  Include  generally  the  Judicial  busi- 
ness which  a  circuit  Judge  is  authorized  by 
law  to  transact  Moreover,  the  language 
used  is  permissive.  Circuit  Judges  "may 
hold  courts  for  each  other."  We  do  not 
think  the  provision  quoted  has  precluded 
the  Legislature  from  enlarging  the  powers 
which  circuit  Judges  may  exercise  outside  of 


Digitized  by  LjOOQ  l€ 


W18.) 


m  BE  ROSS. 


809 


their  circuits,  even  It  If  be  conceded  that  (Ross,  trustee,  for  an  order  directing  dlspo- 


only  the  power  to  hold  court  at  a  regular 
term  la  expressly  conferred  by  the  Consti- 
tution.   The  Legislature  has  conferred  such 
power  by  section  2432,  St  1898. 
Order  affirmed. 

WINSIiOW,  C.  J.,  and  KERWIN,  J.,  took 
no  part 


In  re  SOUTHERN  WISCONSIN  POWER  CO. 

Appeal  of  WHITNAIiL. 
(Supreme  Court  of  Wisconsin.     Oct.  5,  1909.) 

Appeal  from  Circuit  Court,  Juneau  County; 
James  O'Neill,  Judge. 

Application  by  the  Southern  Wisconsin  Power 
Company  for  the  appointment  of  commissioners 
to  appraise  lands  for  flowage  purposes,  in  which 
Charles  B.  Whitnall  filed  objections,  and  appeals 
from  an  order  appointing  commissioners.  Af- 
firmed. 

Cary,  Upham  &  Black,  for  appellant  Jones 
&  Schubring,  for  respondent. 

BARNES,  J.  This  case  in  all  material  re- 
spects is  identical  with  the  appeal  of  the  Black 
Hawk  Land  Company,  in  the  Matter  of  the 
Application  of  the  Southern  Wisconsin  Power 
Company  for  the  Appointment  of  Commissioners 
to  Appraise  Lands  (decided  herewith)  122  N.  W. 
801,  and  is  controlled  thereby. 

Order  afSrmed. 

WINSLOW,  a  J.,  and  KERWIN,  J.,  took  no 
part 


In  re  ROSS. 

BOWSER  T.  SHIELDS  et  al. 

(Supreme  Court  of  Wisconsin.  '  Oct  0,  1909.) 

1.  Descent    and    Distbibxttion    (|    33*)  — 
CouBSB— Lands  ot  Unuabbied  Infants. 

Under  St  1898,  |  2270,  subd.  5,  providing 
that  if  a  person  die  leaving  several  children, 
and  any  child  should  die  unmarried,  all  the  es- 
tate which  came  to  such  deceased  child  by  in- 
heritance or  will  from  decedent  and  all  per- 
sonalty belonging  to  such  child  bv  reason  of  dis- 
tribution, shall  descend  in  equal  shares  to  the 
other  children  of  his  parent  or  their  issue, 
if  one  having  children  dies  leaving  property 
by  will  to  one  of  them  without  any  direction 
for  its  disposition  In  case  of  the  death  of  the 
child,  and  it  dies  unmarried  and  intestate  in 
infancy,  such  property  descends  to  the  children 
of  the  ancestor  living  at  the  death  of  the  de- 
ceased child  or  to  their  issue;  it  being  Intes- 
tate property  as  to  the  first  taker. 

[Ed.  Note.— For  other  cases,  see  Descent  and 
Distribution,  Cent  Dig.  IS  93-96;  Dec.  Dig.  i 
83.*] 

2.  Wnxs  (f  822*)  —  CoNBTBUOTiOK  —  Estate 
Cbeatbd. 

Where  a  will  devised  to  testator's  son  all 
the  remainder  ot  the  estate  both  real  and  per- 
sonal^ subject  to  certain  legacies,  there  was  no 
remamder  over  after  the  child's  death  disposed 
of  by  the  will 

[Ed.  Note.— For  other  cases,  see  Wills.  Cent 
Dig.  H  1440-1444;   Dec.  Dig.  J*C22.*] 

Appeal  from  Circuit  Court  Dane  County; 
E.  Ray  Stevens,  Judge. 
In  the  matter  of  the  petition  of  Marion 


sltlon  of  the  proceeds  of  the  sale  of  realty 
given  to  an  intestate  by  his  father's  wUl. 
From  an  order  directing  their  distribution 
to  testator's  other  children  or  their  repre- 
sentatives, Mary  B.  Bowker  appeals.  Af- 
firmed. 

Proceedings  for  the  construction  of  a  will. 

Albert  Bowker  died  testate.  His  will  was 
duly  admitted  to  probate  In  the  county  court 
for  Dane  county,  Wisconsin,  May  5th,  18^. 
He  died  seised  of  certain  real  estate  and 
owner  of  certain  personal  property.  Aft- 
er settlement  of  his  estate  there  was  left  In 
the  hands  of  the  executrix  for  distribution 
$253.59.  He  willed  all  the  residue  of  his 
estate  after  payment  of  his  debts  and  funer- 
al expenses  to  his  son,  Albert  Irwin  Bow- 
ker, subject  to  some  smalf  bequests  which 
have  been  paid.  The  estate  was  closed  by 
a  final  order  reciting  that  the  deceased  left 
surviving  him  six  children,  named,  who  were 
at  the  date  of  the  order  adults  and  two  chil- 
dren Claudia  Gertrude,  aged  eleven  and  Al- 
bert Irwin,  aged  five  years,  at  such  date 
and  his  widow  as  his  sole  heirs,  and  decree- 
ing as  foliows:  The  testamentary  trustee  Is 
entitled  to  the  $253.59  to  be  applied  on  the 
legacy  of  $500  to  Claudia  upon  her  attain- 
ing the  age  of  18  years  and  on  one  to  a  son, 
Ernest  upon  the  son,  Albert  Irwin,  arriving 
at  the  age  of  21  years,  provided  that  in  case 
the  death  of  Ernest  precedes  Irwin  attain- 
ing the  age  of  21  years  the  former's  legacy 
shall  revert  to  Irwin,  all  as  In  said  will 
provided;  and  In  case  of  the  death  of  Claud- 
la  under  the  age  of  18  years  her  legacy  shall 
belong  to  her  heirs  at  such  age,  as  she 
would  have  reached  that  age  and  the  legacy 
to  Ernest  shall  be  payable  to  him  If  living 
at  the  time  Albert,  Jr.,  If  living,  would 
reach  the  age  of  21  years,  and  If  prior  to 
such  time  Ernest  shall  die  leaving  Issue  of 
his  body  living  at  such  time,  his  legacy  shall 
be  paid  at  such  time  to  such  Issue,  other- 
wise In  case  of  the  death  of  Ernest  before 
such  time  leaving  no  Issue  the  legacy  shall 
fall  into  the  residuum  ot  the  estate  and  go  to 
Albert  or  his  heirs.  Subject  to  the  home- 
stead and  dower  right  of  the  widow  and 
payment  of  the  legacies  the  estate  was  be- 
queathed to  Albert  as  residuary  legatee  as 
provided  In  the  will. 

After  entry  of  the  final  order  as  aforesaid 
Albert  Irwin  died  under  the  age  of  21  years 
leaving  as  survivors  his  mother,  Mary,  broth- 
ers and  sisters  and  Issue  of  deceased  broth- 
ers and  sisters,  children  and  grandchildren 
of  Albert  Sr.  Marlon  Ross  being  trustee  of 
the  proceeds  of  a  sale  of  the  real  estate  for 
Albert  Irwin  and  his  mother,  after  the  death 
of  the  former,  petitioned  the  county  court 
for  an  order  directing  disposition  thereof. 
Respondents,  as  heirs  of  Albert,  Sr.,  claimed 
that  the  property  which  would  belong  to 
Albert  Irwin,  If  living  belong  to  them  un- 


•FOr  othw  eaass  se*  sam*  topio  and  lectlon  NUMBER  tn  Dec.  *  Am.  Digs.  1907  to  date,  A  Reporter  Indexes 


Digitized  by  LjOOQ  l€ 


810 


122  NORTHWESTERN  REPORTEH. 


(Wis. 


4er  section  2270,  St  1898,  and  should  go  to 
the  living  children  of  Albert,  Sr.,  and  the 
issue  of  his  deceased  children  by  right  of 
representation.  The  county  court  so  held 
and  on  appeal  to  the  circuit  court  the  re- 
sult was  the  same.  Judgment  was  rendered 
accordingly. 

Gilbert,  Jackson  &  Ela,  for  appellant  W. 
A.  P.  Morris  and  M.  S.  Dudgeon,  for  re- 
spondents. 

MARSHALL,  J.  (after  stating  the  facts  as 
above).  The  question  at  Issue  on  the  ap- 
peal may  be  concisely  stated  thus:  If  a 
person  having  children  dies  testate  leaving 
property  by  testamentary  gift  to  one  of  them 
with  no  direction  for  disposition  thereof  In 
case  of  the  termination  of  that  estate  by 
death  or  otherwise,  and  such  child  dies  in 
Infancy  and  so,  necessarily,  Intestate,  he 
not  having  been  married,  does  such  proper^ 
ty  descend  to  the  other  children  of  such  per- 
son living  at  the  death  of  the  first  taker 
and  the  children  of  such  as  are  dead,  by 
right  of  representation?  That,  as  held  by  the 
learned  trial  court.  Is  unmistakably  ruled  by 
subdivision  5,  §  2270,  St  1898,  in  these 
words: 

"If  any  person  shall  die  leaving  several 
-children  or  leaving  one  child  and  the  Is- 
sue of  one  or  more  other  children,  and  any 
such  surviving  child  shall  die  under  age,  not 
having  been  married,  all  the  estate  that  came 
to  the  deceased  child  by  Inheritance  or  by 
testamentary  gift  from  such  deceased  par- 
«nt  and  all  personal  property  which  belongs 
to  such  deceased  child  by  reason  of  distri- 
bution under  subdivision  6  of  section  3935 
shall  descend  and  be  distributed  in  equal 
shares  to  the  other  children  of  the  same 
parent  and  to  the  issue  of  any  such  other 
children  who  shall  have  died,  by  right  of 
representation." 

The  statute  is  so  plain  that  It  would  be 
a  waste  of  words  to  Indulge  in  discussion 
for  the  purpose  of  elucidating  Its  meaning 
-or  pointing  out  Its  application  to  the  facts 
of  this  case  as  summarized  in  the  proposi- 
tion stated. 

Counsel  for  appellant  suggest  that  the  stat- 
ute Is  a  law  of  descent  which  does  not  apply 
here  because  the  property  In  question  was 
disposed  of  by  the  will  of  Albert  Bowker. 
True,  the  statute  is  one  regulating  descent 
and  so  applies  wholly  to  Intestate  property. 
But  the  property  'in  question  Is  clearly  with- 
in the  statute  since,  though  It  Is  testate  prop- 
erty as  regards  Albert  Bowker  and  came  to 
Albert  Irwin  by  testamentary  gift  It  Is  In- 
testate property  of  the  latter.  By  the  terms 
•of  the  law  it  Includes  property  received  by 
a  child,  subsequently  dying  In  Infancy,  by 
Inheritance  or  testamentary  gift 

Counsel  is  plainly  in  error  In  the  claim 
that  the  remainder  over  after  the  death  of 


Albert  Irwin  was  disposed  of  by  the  will  of 
his  father.  He  did  not  even  will  the  proper- 
ty, as  suggested,  to  Albert  Irwin  and  bis 
heirs.  Had  he  done  so  the  term  "heirs" 
would  be  referable  to  the  section  undw  con- 
sideration. The  will  gave  direction  to  tlie 
title  only  till  it  should  vest  In  Albert  IrwIn, 
the  words  being:  "I  give  and  bequeath  to 
my  son  Albert  Irwin  all  the  rest,  residue  and 
remainder  of  my  estate,  both  real  and  per- 
sonal, subject"  etc.,  specifying  the  legacies 
which  have  been  paid  as  indicated  in  the 
statement  That  left  direction  of  the  title 
in  the  circumstances  which  occurred  wholly 
as  specified  in  the  statute,  as  the  circuit 
court  decided. 
Judgment  aflirmed. 

WINSLOW,  C.  J.,  took  no  part 


CHICAGO,  M.  &  ST.  P.  RT.  CO.  ▼.  VILLAOB 

OF  FAIR  OAKS. 
(Supreme  Court  of  Wisconsin.    Oct  6,  1909.) 

1.  Railroads  (8  95*)— Regulation  —  Maht- 
TAININO  Street  Cbossinos. 

Under  Laws  1907,  p.  795,  c  120,  adding 
section  1299h-l  to  St  1838,  requiring  any  rail- 
road company  across  whose  track  any  higliway 
in  any  Incorporated  village  extends  to  construct 
and  maintain  in  safe  condition  at  its  own  ex- 
peuse  the  part  of  such  highway  extending  over 
its  tracks,  a  railroad  company  must  b^  plank- 
ing or  its  equivalent,  substantially  adjust  the 
surface  of  a  village  street  extension  between  its 
tracks  where  they  cross  the  street  to  a  level  with 
the  top  of  the  rails  j  such  precaution  being  nec- 
essary for  the  public  safety. 

[Kd.  Note. — For  other  cases,  see  Railroads, 
Cent.  Dig.  !  278;    Dec.  Dig.  S  95.»] 

2.  Eminent  I^omain  (8  2*)— Right  to  (Com- 
pensation —  Condemnation  fob  Pasuo 
Use. 

That  a  railroad  company  is  required  by 
statute  to  construct  and  maintain  at  its  own  ex- 
pense the  part  of  a  crossing  lietween  its  tracks 
on  the  extension  of  a  village  street  over  its  right 
of  >vay  by  condemnation  does  not  entitle  it  to 
compensation  for  such  expense;  the  burden 
of  maintaining  the  crossing  being  solely  for  the 
public  protection,  though  it  would  i>e  entitled 
to  compensation  if  the  condemnation  was  for 
use  of  another  railroad. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Dec.  Dig.  8  2.*] 

3.  Railboads  (8  95*)— Operation— Statutory 
Regulation  —  validitt  —  Maintaining 
Street  Crossings. 

Laws  1907,  p.  795,  c.  120,  adding  section 
12$)Ch-l  to  St  1898,  requiring  any  railroad 
company  over  whose  tracks  any  highway  in  any 
incorporated  village  extends  to  construct  and 
maintain  in  safe  condition  for  public  travel  at 
its  own  expense  the  part  of  such  highway  ex- 
tending over  its  tracks,  is  a  legitimate  exercise 
of  police  power  for  the  protection  of  the  public 
[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  88  3-12;  Dec  Dig.  8  95.*] 

Appeal  from  Circuit  Court  Dane  County; 
B.  Ray  Stevens,  Judge. 

Condemnation  proceedings  by  the  Village 
of  Fair  Oaks  against  the  Chicago,  Milwau- 
kee &  St  Paul  Railway  Company.    From  a 


'For  other  casea  see  lanty  topic  and  tecUon  NUMBER  In  Dec  t  Am.  Digs.  U07  to  dats,  *  Reportar  IndaxM 


Digitized  by  VjOOQ  l€ 


"V7U.) 


CHICAGO.  M.  &  ST.  P.  EY.  CO.  t.  VILLAGE  OP  FAIE  OAKS, 


811 


judgment  awarding  defendant  less  dam- 
ages than  claimed.  It  appeals.    Affirmed. 

Condemnation  proceeding  for  the  exten- 
sion of  Jackson  street  across  the  existing 
.Tight  of  way  and  tracks  of  the  appellant 
It  was  stipulated  by  the  parties,  and  found 
by  the  court,  that  the  diminished  value  of 
appellant's  land  was  $1,  and  that  the  cost  of 
planking  the  crossing  In  perpetuity  would 
be  $90.  The  court  awarded  as  damages  $1 
and  refused  to  allow  the  $99,  from  which 
refnsal  the  railroad  company  brings  this  ap- 
peal. 

Sanborn  &  Blake  (C.  H.  Van  Alstlne,  of 
•counsel),  for  appellant  M.  B.  Olbrlch,  for 
respondent 

DODGB,  J.  (after  stating  the  facts  as 
above).  The  first  contention  made  by  ap- 
pellant Is  that  the  new  statute,  enacted  by 
chapter  120,  p.  795,  Laws  1907,  added  as  sec- 
tion 1299h-l,  St  1808,  does  not  require  it 
to  plank  the  crossing  of  the  new  street 
That  act  provides:  "Whenever  any  highway 
In  any  town  or  Incorporated  village  without 
tbe  limits  of  any  incorporated  city,  shall 
■extend  upon,  over  or  across  the  tracks  or 
right  of  way  of  any  railroad  company,  such 
raUroad  company  shall  at  its  own  expense 
construct,  grade  and  maintain  In  safe  con- 
dition for  public  travel  the  portion  of  such 
highway  or  crossing  extending  upon,  over 
or  across  the  tracks  or  right  of  way  of  such 
railroad  company."  Does  this  Include  plank- 
ing the  surface  between  and  adjoining  the 
tracks?  The  affirmative  was  quite  directly 
declared  in  Chicago,  Milwaukee,  etc.,  Rail- 
way Company  v.  Milwaukee,  97  Wis.  418, 
431,  435,  72  N.  W.  1118;  and,  while  the 
question  was  not  necessarily  Involved  In 
that  case,  the  reasons  there  presented  still 
appear  to  us  cogent  and  conclusive.  The 
•portion  of  the  highway  at  the  place  of  in- 
tersection with  the  tracks  cannot  be  so  con- 
structed and  maintained  as  to  be  in  "safe 
condition  for  public  travel"  without  such 
planking,  or  some  equivalent  therefor,  as 
to  adjust  tbe  surface  substantially  to  a  lev- 
el with  the  tops  of  the  rails. .  Of  course,  this 
might  be  accomplished  by  the  use  of  cement 
or  concrete,  and  perhaps  In  some  other  way, 
but  at  expense  probably  as  much  or  greater 
than  the  planking,  and  we  take  the  prac- 
tical question  here  Involved  to  be  whether 
planking  or  some  equivalent  is  by  the  stat- 
ute Imposed  upon  the  company.  Without  it 
the  crossing  would  be  safe  neither  for  the 
public  travel  upon  the  highway  nor  for  the 
uninterrupted  passage  of  trains  over  it  The 
danger  to  the  public  results,  not  only  from 
the  presence  of  rails  in  the  street  but  from 
the  probable  presence  of  teams  or  other  ob- 
fltructions  upon  the  track  so  that  accidents 
may  occur  to  trains  or  they  may  be  obliged 
to  stop.  The  public  safety  Is  involved  both 
in  the  travel  on  the  street  and  in  the  travel 
•of  the  railroad.  We  think  the  words  of  the 
-statnte  are  clearly  broad  enough  to  require 


such  adjustment  of  the  surface  to  the  rails 
as  is  ordinarily  accomplished  by  planking, 
and  the  obvious  purpose  of  the  act  is  such 
as  to  arouse  belief  in  that  intention. 

2.  A  further  contention  of  the  appellant 
is  that  if  It  Is  required  by  law  to  infur  this 
expense  as  a  consequence  of  the  condemna- 
tion 9f  a  portion  of  Its  right  of  way  for  use 
as  a 'highway,  such  expense  is  an  impair- 
ment of  the  value  of  its  property,  and  there- 
fore should  be  compensated  in  the  condem- 
nation proceedings,  a  contention  which.  If 
the  condemnation  were  for  another  railroad, 
finds  support  in  State  t.  Railroad  Commis- 
sion (Wis.)  121  N.  W.  919,  decided  so  re- 
cently that  the  opinion  was  probably  not 
brought  to  the  attention  of  the  circuit  Judge 
in  the  Instant  case.  In  that  opinion,  bow- 
ever,  tbe  distinction  Is  clearly  drawn  be- 
tween a  condemnation  of  the  lands  of  one 
railroad  for  the  use  of  another  and  a  con- 
demnation for  the  uses  of  a  public  highway 
with  reference  to  those  burdens  of  expense 
and  maintenance  In  compliance  with  police 
regulations,  resulting  from  the  new  use  of 
that  portion  of  plalntifTs  right  of  way  tak- 
en for  the  crossing.  In  the  case  of  highway 
those  burdens  fall  purely  and  solely  for  pub- 
lic protection.  In  the  case  of  condemnation 
for  a  new  railroad  elements  of  private  profit 
result  from  tbe  condemnation,  although  they 
are  not  the  sole  reason  for  It,  and  therefore 
It  has  been  held,  as  is  declared  in  State  v. 
Railroad  Commission  that  those  expenses,  so 
far  as  they  are  cast  upon  the  plaintiff  by 
the  new  crossing,  should  be  compensated  by 
the  condemnor,  If  another  railroad  company, 
while  in  the  case  of  the  public  they  should 
not  because  a  mere  burden  of  expense  re- 
sulting wholly  from  obedience  to  police  reg- 
ulations rendered  necessary  by  the  develop- 
ment and  growth  of  the  community  and  ap- 
plication of  governmental  policy.  Minne- 
apolis V.  St  Paul  Ry.  Co.,  98  Minn.  380,  108 
N.  W.  261,  120  Am.  St  Rep.  581;  Chicago, 
etc.,  Ry.  Co.  v.  Milwaukee,  supra. 

3.  Upon  the  question  whether  the  require- 
ment of  section  1209h-l  is  a  legitimate  exer- 
cise of  police  power  Justified  by  considera- 
tions of  protection  of  the  safety  of  the  pub- 
He,  Railway  Co.  v.  Milwaukee,  supra,  is 
final.  As  there  well  said:  "There  is  no  dis- 
tinction In  principle  between  the  planking 
of  the  crossing  and  the  maintenance  of  cross- 
ing signs,  warning  posts,  cattle  guards,  wing 
fences,  crossing  gates,"  and  othor  things 
there  mentioned.  The  suggestion  of  a  dis- 
tinction because  the  planking  or  Its  equiva- 
lent is  really  a  part  of  the  construction  of 
the  railroad  is  an  immaterial  one.  Obvious- 
ly it  is  no  more  so  than  the  construction  of 
cattle  guards  required  by  section  1810,  St 
1898,  and  sustained  as  a  police  regulation 
in  Railroad  Co.  y.  Milwaukee,  supra,  and 
cases  there  cited. 

Judgment  affirmed. 

WINSLOW,  a  J.,  took  no  part 

Digitized  by  LjOOQ  IC 


812 


122  NORTHWESTERN  REPORTEa 


(lows 


NAPA  VALLBT  WINE  CO.  v.  CASSANOVA 
et  al.    ' 

(Supreme  Court  of  Wisconsin.    Oct  6,  1909.) 

PaiNciPAL  AND  Agent  (|  103*)— LiABn-rrr  to 
Third  Pebson— Appabent  Authobitt. 
Where  defendants  sold  a  saloon  business, 
with  the  intention  that  the  business  was  to 
be  run  by  the  purchaser  as  that  of  defendants 
until  they  were  paid  the  purchase  price,  a  pri- 
vate agreement  that  the  porcliaser  should  not 
commit  defendants  to  liability  for  goods  bought 
for  use  in  the  business  did  not  protect  defend- 
ants against  a  claim  for  goods  sold  the  pur- 
chaser oy  one  dealing  with  nim  in  the  ordinary 
line  of  such  business  without  knowledge  of  the 
restriction. 

[Ed.  Note. — For  other  cases,  see  Principal  and 
Agent,  Cent.  Dig.  U  278-293,  353-359;  Dec 
Dig.  S  103.*1 

Appeal  from  Clrcnlt  Court,  St  Croix  Coun- 
ty;  B,  W.  Helms,  Judge. 

Action  by  the  Napa  Valley  wine  Company 
against  J.  A.  Cassanova  and  others.  Judg- 
ment for  plaintiff,  and  defendants  appeal. 
Affirmed. 

The  defendants,  copartners,  conducted  a 
brewery  business  at  Hudson,  Wis.  They  had 
come  Into  ownership  of  the  stock,  furniture, 
fixtures,  and  lease  of  a  saloon  at  St  Joseph, 
and  were  conducting  the  same  through  an 
employe,  when  they  effected  a  sale  to  one 
McMahon  of  the  stock  of  liquors  and  glass- 
ware; the  defendants  retaining  the  lease 
and  furniture  and  agreeing  to  procure  the 
licenses,  both  state  and  municipal.  In  their 
own  name,  whereupon  McMahon  was  to  take 
over  the  business  and  pay  over  to  the  de- 
fendants, from  sales,  as  rapidly  as  possible, 
the  purchase  price  and  the  cost  of  the  li- 
censes. This  he  proceeded  to  do,  with  the 
licenses  publldy  exhibited  Inside  and  a  sign 
of  the  defendants'  beer  on  the  exterior  of  the 
building.  The  plaintlflC  sold  McMahon  a 
quantity  of  liquors  for  use  In  the  saloon,  up- 
on McMahon's  statement  that  he  was  run- 
ning the  saloon  for  the  defendants,  which  he 
confirmed  by  calling  attention  to  the  licenses. 
Defendants  refusing  to  pay,  this  action  was 
brought  against  them.  The  court  found  as 
a  fact,  "from  all  the  transactions  accompa- 
nying the  installation  of  McMahon,  that  It 
was  understood  between  him  and  the  defend- 
ants that  the  business  of  running  such  saloon 
should  be  continued  In  the  name  of  the  de- 
fendants"; also  that  the  goods  were  sold 
upon  the  belief  that  the  business  was  being 
conducted  for  and  In  behalf  of  the  defend- 
ants, and  were  used  In  such  business.  Ac- 
cordingly judgment  was  rendered  for  the 
plaintiff  for  the  unpaid  balance  of  the  pur- 
chase, some  ^60,  from  which  the  defend- 
ants appeal. 

A.  J.  Kinney,  for  appellants.  Baker  ft 
Haren,  for  respondent 


DODGE,  J.  (after  stating  the  facta  as 
above).  While,  as  the  trial  court  says,  the 
evidence  Is  somewhat  nebulous  and  Indefinite 
as  to  what  the  parties  understood,  yet  there 
was  a  fair  Issue  of  fact  for  that  court  to 
decide.  The  evidence  does  not  preponderate 
at  all  clearly  against  his  conclusion  that 
the  Intuition  was  that  the  business  should 
be  run  as  that  of  the  defendants  until  they 
were  reimbursed  the  amount  of  McMahon's 
Indebtedness  to  them,  and  that  one  of  the 
usual  and  essential  powers  incident  to  the 
running  of  such  a  business,  remote  from  the 
principal's  residence,  is  the  purchase  of  sup- 
plies to  be  used  therein.  This  being  so,  a 
private  and  undisclosed  agreement  that  ba 
should  not  commit  defendants  to  liability 
for  such  purchases  would  not  protect*  them 
against  a  claim  by  one  dealing  with  McMa- 
hon in  the  ordinary  line  of  such  business 
without  knowledge  of  such  restriction. 
Roche  V.  Pennington,  90  Wis.  107,  112,  62 
N.  W.  046;  McDermott  y.  Jackson,  97  Wis. 
64,  71,  72  N.  W.  375;  Parr  v.  Northern  Elec- 
trical Mfg.  Co.,  117  Wis.  278,  287,  93  N.  W. 
1099;  Abrohams  v.  RevUlon  Freres,  129 
Wis.  235,  107  N.  W.  656;  Ferris  T.  Kilmer, 
48  N.  Y.  800,  304. 

Judgment  affirmed. 

WINSLOW,  C.  J.,  took  no  part 


ROSS  V.  LEADER  et  al.  (Farmers'  Loan  & 

Trust  Co.,  Intervener). 

(Supreme  Court  of  Iowa.    Oct  21,  1909.) 

New  Tbial  (|  166*)— Gbounds— Loss  of  Reo- 

OBDS. 

A  party  is  not  entitled  to  a  new  trial  four 
months  after  decree  merely  because  of  the  death 
of  the  official  reporter  and  the  inability  of  any 
one  to  transcrit)e  his  shorthand  notes. 

[Ed.  Note.— For  other  cases,  see  New  TriaL 
Dec.  Dig.  {  16e.»]  ^ 

Appeal  from  District  Court,  Monona  Coun> 
ty ;  Wm.  Hutchinson,  Judge. 
"Not  to  be  officially  reported." 

The  pleading  Indicated  that  through  nego- 
tiations with  plaintiff's  husband  a  written  con- 
tract for  the  exchange  of  her  farm  in  Monona 
county  to  defendant  J.  B.  Leader  for  land 
In  Cherry  county,  Neb.,  was  entered  into 
and  papers  essential  to  effect  the  transfers 
exchanged.  The  plaintiff  prayed  that  the 
contract  be  rescinded,  and  that  the  deed 
conveying  the  Monona  county  land  and  the 
note  and  mortgage  on  the  Nebraska  land 
which  she  had  executed  be  canceled  on  the 
grounds  (1)  that  her  ratification  of  the  con- 
tract was  procured  by  fraudulent  misrepre- 
sentation of  the  Nebraska  land ;  (2)  that  ab- 
stracts showing  perfect  title  thereto  had  not 
been  furnished  as  stipulated;  (3)  that  the 
defendant  Thompson,  in  whose  hands  the 
papers  had  been  placed  In  escrow,  delivered 


*For  other  cssm  sm  sune  toplo  and  imUoii  NUMBEB  in  Dec.  ft  Am.  Dies.  U07  to  «Ut«,  *  Bsportw  IndazM 


Digitized  by  VjOOQ  l€ 


Iowa) 


SAWYER  V.  MOULD. 


813 


the  same  to  Leader  without  antbority.  The 
defendant  pnt  these  allegattons  In  ioBne,  and 
sought  In  a  separate  action  to  have  the  plain- 
tiff enjoined  from  interfering  with  the  har- 
vesting of  the  crops  on  the  Monona  county 
farm.  The  Farmers'  Loan  &  Trust  Company 
held  a  mortgage  on  this  farm,  and  In  a  peti- 
tion of  intervention  aslced  for  the  same  re- 
lief as  that  sought  by  plaintiff.  The  actions 
were  consolidated,  and  on  bearing  the  dis- 
trict court  awarded  plaintiff  the  relief  pray- 
ed. Decree  was  entered  December  6,  1907. 
Four  months  later,  April  10,  1908,  the  de- 
fendants filed  their  petition  for  a  new  trial. 
To  this  the  plaintiff  interposed  objections, 
and  subject  thereto  demurred  to  defendant's 
petition.  The  parties  then  stipulated  that 
the  official  reporter  who  took  down  the  evi- 
dence In  shorthand,  W.  E.  Cody,  was,  owing 
to  sickness,  unable  to  perform  bis  duties  as 
such  shortly  after  the  trial,  that  on  the  28th 
of  December  his  malady  was  found  to  be 
fatal,  and  that  he  died  In  March,  1908,  and 
that  the  shorthand  notes  bad  never  been 
certified.  The  cause  was  submitted  on  tbla 
stipulation  In  connection  with  the  pleadings, 
and  on  July  16,  1908,  an  order  entered  grant- 
ing a  new  trial.  The  plaintiffs  appeal.  Re- 
versed. 

Prlchard  &  Newby,  for  appellant  Shull, 
Farnsworth  &  Sammls,  for  appellees.  E.  P. 
F^rr,  for  interveners. 

LADD,  J.  The  application  for  new  trial 
was  submitted  on  the  pleadings  and  stipula- 
tions of  the  parties.  This  stipulation  was 
to  the  effect  that  the  official  court  reporter, 
W.  E.  Cody,  bad  become  sick  shortly  after 
the  entry  of  the  decree,  December  6,  1907, 
and  bad  been  unable  to  work  thereafter  \m- 
tll  his  death  In  March,  1908.  The  shorthand 
notes  had  not  been  certified.  The  petition 
for  new  trial  alleged,  in  substance,  that  the 
testimony  of  about  20  witnesses  had  been  ad- 
duced in  open  court,  and  was  taken  down  in 
shorthand,  as  had  been  several  stipulations 
of  the  parties  and  objections  to  evidence  that 
no  one  could  transcribe  such  evidence,  and 
that  the  same  testimony  could  not  be  elicited 
from  the  witnesses  as  had  been  given  at  the 
trial;  that,  by  reason  of  the  lapse  of  time, 
many  of  the  facts  had  been  forgotten;  and 
that  It  would  be  Impossible  to  reproduce 
with  any  degree  of  accuracy  the  testimony 
introduced  on  the  trial  or  the  stipulations 
of  the  parties ;  and  that  It  was  Impossible 
for  the  parties  to  agree  upon  the  evidence  as 
Introduced  on  the  trial  or  upon  facts  stipu- 
lated. 

It  was  further  alleged  that  the  trial  Judge 
did  not  remember  all  the  evidence  or  the 
substance  thereof  or  the  facts  stipulated, 
and  that  no  one  knew  the  objections  and 
exceptions  taken  during  the  trial ;  that,  ow- 


ing to  these  matters,  the  defendants  were  un- 
able to  present  the  record  of  said  trial  to 
the  Supreme  Court,  as  they  could  not  substi- 
tute with  any  degree  of  accuracy  the  record 
as  made  In  the  district  court  The  petition 
was  supported  by  affidavits,  and  to  It  the 
plaintiffs  Interposed  a  resistance  in  which 
they  denied  that  any  steps  had  been  taken 
to  bring  the  appeal  to  the  Supreme  Court, 
denied  that  the  evidence  adduced  had  been 
forgotten,  and  offered  to  assist  defendants 
to  make  the  record  "in  any  way  either 
prescribed  by  the  defendants  or  by  the 
court,"  and  stated  that  "if  It  is  Impossible 
for  plaintiff  and  defendants  to  agree  upon 
the  testimony  of  the  different  witnesses,  and 
If  the  court  cannot  determine  and  the  court 
does  not  remember  the  testimony  of  said 
witnesses,  then  in  that  case  plaintiff  agrees 
that  witness  may  be  recalled,  duly  sworn  by 
the  court,  and  his  testimony  taken,  and, 
when  so  taken,  filed  as  his  original  testimo- 
ny, and  same  become  a  part  of  the  record 
as  the  original  testimony."  She  denied  that 
It  would  be  necessary  to  recall  any  of  the 
witnesses  In  order  to  get  a  full  statement 
of  the  things  testified  to  by  them,  and  she 
expressly  waived  "any  rights  she  may  have 
to  object  to  the  substituted  record  if  approv- 
ed by  the  court"  With  these  objections 
verified  and  subject  thereto,  plaintiff  filed  a 
general  demurrer,  and,  as  said,  the  cause 
was  submitted  on  the  pleadings  and  stipula- 
tion. It  will  be  observed  that  the  objections 
of  the  plaintiff  put  In  issue  the  claim  of  the 
defendants  that  the  record  could  not  be  sub- 
stituted and  left  as  the  only  matter  for  de- 
cision by  the  trial  court  whether  because 
of  the  death  of  the  official  reporter  and  the 
inability  of  any  one  to  transcribe  his  short- 
hand notes  defendants  were  entitled  to  a 
new  trial.  That  the  district  court  so  ruled 
was  conceded  In  oral  argument  and  that 
this  was  error  appears  from  Dumbarton 
Realty  Co.  v.  Erickson  (Iowa)  120  N.  W. 
1025.  The  subject  is  so  fully  considered  In 
that  case  that  nothing  more  need  be  added.  ^ 
The  application  for  new  trial  should  have 
been  denied. 
Reversed. 


SAWXER  V.  MOULD,  District  Judge. 

(Supreme  Court  of  Iowa.    Oct  20,  1909.) 

Intoxicating  Liquors  (§  279*)  —  Violation 
OF  Injunction— Sufficiency  of  Evidence 
—"Permit"— "Allow." 

That  a  tenant  of  a  building  and  his  subten- 
ant without  the  knowledge  of  the  owner  gold 
liquors  therein  did  not  show  a  violation  by  the 
owner  of  an  injunction  against  selling  or  permit- 
ting liquors  to  be  sold,  since  she  was  not  bound 
to  assume  that  her  tenant  or  his  subtenant 
w^ould  violate  the  law ;  to  permit  being  to  au- 
thorize or  give  leave,  and  to  allow  being  to  ac- 


•For  otber  eaiea  ■««  tame  toplo  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  &  Reiiorter  Indexes 


Digitized  by  LjOOQIC 


814 


122  NORTHWESTERN  RBPORTER. 


(Iowa- 


quiesce  in  or  tolerate,  and  knowledge,  express  or 
implied,  is  essential  to  be  guilty  of  either. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent.  Dig.  {  414 ;  Dec.  Dig.  {  279.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  6,  pp.  5315-5318;  toI.  8,  p.  7752;  vol.  1, 
pp.  344-316.] 

Proceeding  In  certiorari.    Dismissed. 

John  F.  Joseph,  for  plaintiff.  Henderson 
&  Frlbourg,  for  defendant 

LADD,  J.  Mary  Kappes  was  owner  of  a 
two-story  brick  building,  and,  because  of  the 
sale  of  Intoxicating  liquors  in  the  second 
story  by  Belle  Hall,  both  were  permanently 
enjoined  on  February  1,  1908,  from  selling  or 
lieeping  such  liquors  for  sale  or  permitting 
this  to  be  done.  Immediately  after  the  entry 
of  the  above  decree,  Belle  Hall  vacated  the 
upper  floor.  Mary  Kappes  bad  leased  the 
entire  building  to  J.  Jacobson  for  the  purpose 
of  conducting  a  clothing  store  with  permis- 
sion to  sublet,  and  Jacobson  bad  entered  into 
possession  June  1,  1907.  Some  time  in  Feb- 
ruary, 1908,  Jacobson  assigned  the  lease  to 
Sam  Sekt,  and  on  the  20th  of  that  month 
the  latter  sublet  the  second  story  to  John  8. 
Bacon  for  a  period  of  one  year,  conditioned 
that  the  premises  should  be  used  for  lawful 
purposes  only.  On  October  2,  1908,  two  men 
bought  intoxicating  llQuors  on  the  upper 
floor  of  the  premises,  but  without  the  knowl- 
edge of  Mary  Kappes,  who  was  not  aware  of 
the  leasing  of  the  premises  to  Bacon,  bad  not 
been  near  the  same  or  in  that  neighborhood, 
and  was  without  information  that  the  prem- 
ises were  being  so  employed.  In  other  words, 
the  owner  was  without  knowledge  that  sales 
were  being  made ;  and  the  question  presented 
is  whether  she  was  in  possession  of  facts 
from  which  knowledge  should  l>e  implied. 

She  was  enjoined  from  permitting  or  allow- 
ing such  sales,  and  we  concur  in  the  conclu- 
sion of  the  trial  court  that  she  had  done  nei- 
ther. True,  the  writ  of  Injunction  was  issued 
February  1,  1908,  but  her  codefendant  be- 
cause of  whose  acts  the  writ  had  issued  va- 
cated the  premises,  and  the  lease  was  assign- 
ed by  the  tenant  to  Sekt  during  the  same 
month,  and  be  sublet  to  Bacon  March  1st  of 
the  same  year.  Had  her  codefendant  con- 
tinued in  occupancy  or  Jacobson  who  had 
leased  the  upper  story  to  her,  these  circum- 
stances would  be  important.  See  State  v. 
Grim,  85  Iowa,  415,  52  N.  W.  351.  But  she 
was  not  bound  to  assume  that  Sekt  would 
violate  the  law  or  would  tolerate  this  in  sub- 
tenants. Nothing  in  the  circumstances  dis- 
closed in  the  record  was  calculated  to  arouse 
her  suspicions.  To  permit  is  to  authorize  or 
give  leave.  To  allow  is  to  acquiesce  in  or 
tolerate.  Knowledge  express  or  implied  is  es- 
sential before  one  may  be  guilty  of  either. 
Mangam  t.  Brooklyn,  08  N.  T.  585,  50  Am. 
Rep.  705 ;    Stuart  v.  State  (Tex.  Cr.  App.)  60 


S.  W.  654;   22  Am.  &  Eng.  Ency.  of  Law  (2d' 
Ed.)  699.     See  State  v.  Probasco^  62  Iowa, 
402,  17  N.  W.  607. 
Dismissed. 


PRICE  ▼.  FERTIG  et  al.    (two  eases). 
(Supreme  Court  of  Iowa.     Oct.  20,   1909.) 

Chattel  AIobtqaqes  ({  106*)  —  Amount  or 

Debt— Burden  of  Pboof. 

A  mortgagor  in  a  chattel  mortgage  pur- 
porting to  be  for  a  specified  sum  who  asserts 
that  the  indebtedness  was  a  less  sum  has  the 
burden  of  overcoming  the  presumption  arising 
from  the  recitals  of  the  mortgage. 

[Ed.  Note. — For  other  cases,  see  Chattel  Mort- 
gages, Cent.  Dig.  g  109;   Dec  Dig.  8  106.*J 

Appeal  from  District  Court,  Ringgold  Coun- 
ty;   H.  M.  Towner,  Trial  Judge. 

Two  appeals  are  herein  presented  to  ns- 
upon  the  same  record ;  the  same  plaintiff  be- 
ing appellant  in  each  case.  The  first  case 
was  an  action  of  replevin  brought  by  the 
plaintiff  as  mortgagee  under  a  chattel  mort- 
gage. The  second  case  was  an  action  of 
foreclosure  of  such  chattel  mortgage.  The 
defense  in  each  case  was  that  the  mortgage 
had  been  fully  paid.  The  cases  were  tried 
together  upon  the  same  evidence.  The  Judg- 
ment and  decree  of  the  trial  court  sustained 
the  defense  in  each  case.    Affirmed. 

L.  W.  Laughlin  and  V.  R.  McGlnnls,  for 
appellant.  Spence  &  Smith  and  J.  F.  Gallnp, 
for  appellees. 

EVANS,  C.  J.  On  May  1,  1906,  the  de- 
fendants executed  to  the  plaintiff  a  chattel 
mortgage  for  $872.80  purporting  to  secure- 
two  notes  for  $472.86  and  $400,  respectively. 
In  September,  1907,  the  plaintiff  began  an 
action  of  replevin  to  recover  the  possession 
of  the  property  included  in  such  mortgage. 
The  writ  was  issued  and  he  obtained  the 
possession  of  the  property  thereunder.  This 
case  is  luiown  in  the  record  of  the  trial  court 
as  No.  5,099.  A  short  time  thereafter  he 
commenced  an  action  in  equity  to  foreclose 
bis  chattel  mortgage,  and  that  case  is  known 
in  the  record  of  the  trial  court  as  No.  5,124. 
It  was  averred  in  defense  to  each  action  that 
although  the  mortgage  purported  to  t>e  for 
$872.86,  and  to  secure  two  notes  as  therein 
described,  yet  in  truth  the  sum  of, $472.86 
comprised  the  total  Indebtedness  of  the  de- 
fendants to  the  plaintiff,  and  that  the  same 
was  represented  by  a  note  of  like  amount 
described  in  the  mortgage,  and  that  the 
alleged  note  for  $400  was  never  in  fact  de- 
livered, and  that  the  indebtedness  so  secured 
by  the  mortgage  had  been  fully  paid  before 
the  commencement  of  either  action.  Only 
this  question  of  fact  is  involved  in  the  case. 
The  evidence  is  voluminouB.  and  it  will  serve 
no  useful  purpose  to  enter  into  a  detailed 
discussion  of  it.  It  is  involved  in  consider- 
able confusion  on  both  ^ides.    The  principle 


•Vor  other  easM  im  same  topic  and  ■•ction  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  data,  ft  Reporter  Indezee 


Digitized  by 


Google 


Iowa) 


DAVIS  V.  IOWA  FUEL  CO. 


815 


point  of  controversy  is  whether  the  Indebt- 
edness of  the  defendants  to  the  plaintiff  on 
May  1,  igOC,  was  $472.86  or  |872.86.  The 
burden  was  undoubtedly  on  the  defendants 
to  overcome  the  presumption  arising  from 
the  recitals  of  the  mortgage.  The  Issue  at 
that  point  is  not  altogether  free  from  doubt 
but  the  fair  preponderance  of  the  evidence 
is  with  the  defendants,  and  the  trial  court 
BO  found.  This  fact  being  found  adversely 
to  the  plaintiff,  there  is  no  room  for  doubt 
but  that  the  other  note  was  fully  paid.  This 
adverse  finding  of  fact  defeats  plaintiff  in 
both  actions.  The  plaintiff  having  taken 
possession  of  the  property  under  the  writ, 
the  defendant  elected  to  take  Judgment  for 
the  value  thereof.  The  court  made  a  finding 
of  value  as  to  each  item  of  property,  and  en- 
tered Judgment  against-  the  plaintiff  for  a 
total  sum  of  $736.25. 

The  plaintiff  complains  that  the  valuation 
fixed  by  the  court  was  excessive.  We  think, 
however,  it  was  fair  and  conservative  under 
the  evidence,  and  furnishes  the  plaintiff  no 
Just  ground  of  complaint.  The  judgment  and 
decree  of  the  trial  court  In  each  case  must 
therefore  be  affirmed. 


DAVIS  et  al.  t.  IOWA  PUEI/  CO.  et  al. 

(Supreme  Court  of  Iowa.     Oct  19,  1909.) 

Ueceivibs  (g  153*)— Distribution  or  Assets 

— PBEFEBBED    CBEniTOBS. 

Where  an  insolveDt  corporation  surrendered 
its  dominion  over  its  assets  to  its  eziEting  cred- 
itors who  undertook  to  manage  it  through  a 
trustee,  who  was  a  prlDcipal  stockholder  and 
former  manager,  and  the  trustee  conducted  the 
bosinesa  pursuant  to  the  agreement  and  Incur- 
red new  debts,  the  new  creditors  on  the  dis- 
tribution of  the  assets  of  the  corporation  in  re- 
ceivership proceedings  were  entitled  to  perfer- 
ence  over  the  original  creditors,  including  one 
who  had  loaned  money  to  the  corporation  prior 
to  the  agreement  and  who  had  executed  the 
same,  though  the  ordinal  creditors  stipulated 
against  personal  liability. 

[Ed.  Note.— For  other  cases,  see  Receivers, 
Cent  Dig.  {  283;   Dec.  Dig.  I  155.*] 

Appeal  from  District  Court,  Woodbury 
County ;  David  Mould,  Jndge. 

This  is  an  appeal  from  an  order  of  dis- 
tribution In  a  receivership  proceeding.  The 
facts  api)ear  in  the  opinion.    Affirmed. 

Sullivan  &  Griffin,  for  appellants.  Robin- 
son &  McHugh,  for  appellees. 


BVANS,  C.  J.  1.  On  July  19,  1906,  the 
defendant  Iowa  Fuel  Company  was  an  In- 
solvent corporation.  It  had  been  engaged 
In  the  retail  coal  business  at  Sioux  City  tor 
some  time  next  preceding  such  date.  On 
racb  date  it  was  indebted  to  various  cred- 
itors In  a  total  amount  of  atwnt  $4,000,  and 
its  total  assets  bad  a  value  of  about  $2,000. 


On  the  date  named  air  the  then  existing 
creditors  of  the  corporation  entered  into  an 
agreement  with  each  other  and  with  such 
corporation,  whereby  it  was  proposed  to  con- 
duct the  business  of  the  corporation  In  such 
a  way  as  to  enable  it  in  time  to  pay  the 
creditors  Involved.  It  was  therefore  agreed 
by  all  of  the  parties  to  this  agreement  that 
the  business  of  the  Iowa  F^el  Company  with 
all  of  Its  property  and  assets  of  every  kind 
I>e  placed  in  the  hands  of  C.  S.  Graham, 
"who  is  agreed  upon  as  a  trustee  •  •  • 
to  take  possession  and  charge  of  said  busi- 
ness and  of  the  property  and  assets  belong- 
ing thereto,  and  conduct  the  same  for  a  pe- 
riod of  one  year  from  this  date."  It  was 
provided  In  such  contract  that  the  trustee 
should  receive  $75  per  month,  that  he  should 
execute  to  the  creditors  a  bond  in  the  sum 
of  $1,000,  and  that  one  Fields  should  t>e  the 
agent  of  the  creditors  "to  supervise  the  con- 
duct of  the  business  as  carried  on  by  said 
trustee,"  and  "to  decide  the  amount  of  ex- 
pense which  may  be  Incurred  by  the  said 
trustee  in  carrying  on  said  business."  It 
was  also  provided,  "whenever  In  the  Judg- 
ment of  said  Field  there  are  sufficient  funds 
on  hand  over  and  above  the  amount  neces- 
sarily expended  for  current  expenses,  the 
same  shall  be  distributed  among  the  differ- 
ent creditors  pro  rata."  It  was  also  pro- 
vided that  all  funds  should  be  deposited  in 
the  name  of  "C.  S.  Graham,  trustee,"  and 
that  all  disbursements  should  be  made  by 
checks  drawn  in  the  same  way.  From  such 
date  the  business  was  conducted  by  the  trus- 
tee in  pursuance  of  such  contract.  As  such 
trustee  he  purchased  coal  from  the  appel- 
lees In  large  quantities,  and  sold  the  same  in 
the  course  of  trade.  The  joint  enterprise 
so  undertaken  by  the  creditors  did  not 
prove  successful,  and  a  receiver  was  finally 
appointed  for  the  corporation.  The  person 
who  was  80  appointed  as  receiver  was  W. 
F.  Tuttle,  one  of  the  creditors  who  had  en- 
tered Into  the  agreement  of  July  19,  1906. 
He  converted  the  assets  of  the  corporation 
Into  money.  This  controversy  arose  over  the 
final  order  of  distribution.  Those  creditors 
whose  claims  of  indebtedness  were  incurred 
by  Graham,  trustee,  in  the  conduct  of  the 
business  since  July  19,  1906,  demanded  that 
the  assets  in  the  hands  of  the  receiver  be 
first  applied  to  the  payment  of  their  claims 
80  incurred  by  the  trustee.  The  trial  court 
so  ordered.  The  other  creditors  have  ap- 
pealed from  such  order. 

The  case  is  so  unique  In  its  facts  that  no 
precedents  can  be  cited  to  aid  us.  On  prin- 
ciple, however,  we  are  well  satisfied  with 
the  conclusion  reached  by  the  trial  court. 
It  is  urged  by  the  appellants  that  all  cred- 
itors should  stand  on  an  equality.  Their 
argument  is  that  Graham  was  the  former 
manager  of  the  Iowa  Fuel  Company  and  one 


•For  etbar  caaw  •••  hub*  topic  and  section  NUUBER  In  Sec.  &  Am.  Digi.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by 


Google 


816 


122  NORTHWESTERN  REPORTER. 


(Iowa 


of  its  principal  stockholders,  and  that  he  con- 
ducted the  business  as  before,  and  that  there 
was  therefore  no  substantial  change,  and 
that  the  new  creditors  extended  credit  to  the 
corporation  as  the  former  creditors  had  done. 
It  is  argned  that  the  former  creditors  simply 
forbore  litigation,  and  that  they  should  not' 
be  penallssed  therefor.  But  the  premise  of 
fact  upon  which  such  argument  is  based  is 
not  sustained  by  the  record.  The  insolvent 
corporation  surrendered  its  dominion  over 
its  property  to  the  creditors  who  undertook 
to  manage  it  more  economically  and  suc- 
cessfully than  had  previously  been  done. 
Their  motives  were  commendable.  But  the 
fact  remains  that  they  entered  into  the 
joint  enterprise,  and  that  they  put  the  prop- 
erty and  business  into  the  bands  of  a  trus- 
tee, who  was  directly  accountable  to  them, 
and  from  whom  they  required  a  bond,  and 
to  whom  they  stipulated  a  compensation. 
True,  they  stipulated  against  personal  lia- 
bility. But  they  forbore  to  apply  the  prop- 
erty to  the  payment  of  their  claims,  and  they 
put  it  up  as  a  capital  for  the  time  being,  and 
sent  their  trustee  Into  the  commercial  world 
to  purchase  merchandise  upon  the  faith  of 
it  Such  purchases  of  merchandise  were  ab- 
solutely essential  to  the  conduct  of  the  en- 
terprise. No  merchandise  could  have  been 
bought  upon  the  credit  of  an  insolvent  cor- 
poration except  by  deception.  Surely  no 
fraud  or  deception  was  contemplated  by  the 
parties.  It  may  be  doubted  whether  the  ap- 
pellees are  strictly  creditors  of  the  insolvent 
corporation  in  the  ordinary  sense.  Certain 
it  is  that  they  are  creditors  of  the  trustee, 
and  the  trustee  was  the  creation  of  the  ap- 
pellants. Under  the  facts  appearing  here, 
the  elementary  principles  of  equity  require 
that  the  claims  of  the  appellants  be  post- 
poned to  those  which  were  made  in  their 
behalf  by  their  trustee. 

2.  It  Is  claimed  on  behalf  of  W.  F.  Tuttie 
that  he  became  creditor  on  July  19,  1906,  by 
loaning  to  the  company  the  sum  of  $500. 
It  is  urged,  therefore,  that  he  should  be 
deemed  a  new  creditor  to  that  extent,  and 
should  share  in  the  preference  ordered.  The 
difficulty  with  his  position  is  that  he  loaned 
the  funds  to  the  company  prior  to  the  agree- 
ment, and  that  he  Joined  in  the  agreement 
as  an  existing  creditor  to  that  extent  He 
was  not,  therefore,  a  creditor  of  the  trustee. 
Having  signed  the  agreement  which  created 
the  trust  and  the  trustee  as  an  existing  cred- 
itor to  that  extent,  he  la  as  much  bound  by 
such  agreement  as  any  other  creditor  who 
signed  the  same. 

3.  It  is  urged  by  appellees  that  the  appeal 
should  be  dismissed  for  various  reasons 
pointed  out  in  their  argument  The  con- 
clusions above  announced  render  it  quite 
unnecessary  to  consider  these  questions. 

The  order  of  the  trial  court  is  affirmed. 


HARRISON  T.   CITX  OF  ALBIA- 
(Sapreme  Court  of  Iowa.     Oct  19,  1909.) 

1.  MUNICIPAI,  COBPOBATIONS  ({  812*)— DBITSO- 
TIVE    STBEEIS— INJUBIES   TO    Peoestsians— 

Notice. 

The  object  of  the  notice  required  by  Code 
1897,  §  3447,  par.  1,  requiring  notice  of  the 
time,  place,  and  circumstancea  of  an  injury  from 
defective  streets  or  sideivalks,  is  to  enable  the 
city,  while  the  evidence  is  attainable,  to  inves- 
tigate the  question  of  its  liability,  and  reason- 
able certainty  ae  to  the  place  and  circumstanr 
ces  of  the  injury  is  all   that  is  required. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {i  1696,  1607;  Dec. 
Dig.  {  812.*] 

2.  Municipal  Cobpobations  (8  812*)  —  Ds- 
rEcnvE  Stbeets — Injubibs  to  Pedestbians 
—Notice. 

A  notice  of  the  place  of  an  accident  on  a 
defective  sidewalk  as  on  the  sidewalk  running 
east  and  west  along  the  north  side  of  a  street 
between  designated  streets,  about  210  feet  from 
where  the  accident  actually  occurred,  wag  suffi- 
cient where  the  entire  sidewalk  between  the 
designated  streets  was,  as  stated  in  the  notice, 
in  a  dangerous  condition,  especially  where  the 
attorney  for  plaintiff  had  called  the  attention 
of  the  council  to  the  place  of  the  accident  be- 
fore the  statute  had  barred  the  action. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {{  1701,  1702;  Dec. 
Dig.  I  812.«] 

Appeal  from  District  Court,  Monroe  Coun- 
ty; C.  W.  Vermillion,  Judge. 

Action  at  law  to  recover  damages  for  per- 
sonal injuries  received  by  plaintiff  due  to  a 
fall  upon  a  sidewalk  In  the  defendant  city. 
At  the  conclusion  of  the  testimony,  the  trial 
court  directed  a  verdict  for  defendant  on 
the  ground  that  plaintiff  had  not  given  the 
notice  required  by  statute  before  bringing 
her  action.    Plaintiff  appeals.    Reversed. 

Perry  &  Perry  and  N.  E.  Kendall,  for  ap- 
pellant D.  W.  Bates  and  Fred  D.  Everett, 
for  appellee. 

DEEMER,  J.  Plaintiff  claimed  to  have  re- 
ceived her  injuries  upon  a  sidewalk  on  the 
north  side  of  Madison  street  in  the  defend- 
ant city,  and  at  a  point  about  30  feet  west 
of  the  intersection  of  said  street  with  what 
is  known  as  Clinton  street  She  gave  writ- 
ten notice  to  defendant  of  bee  accident  with- 
in the  time  required  by  law,  and  In  the  no- 
tice she  described  the  place  of  accident  aa 
follows:  "That  said  injury  occurred  on  the 
sidewalk  running  east  and  west  along  the 
north  side  of  Madison  street  between  Har- 
rison and  Clinton  streets,  and  in  front  of  the 
residence  property  lying  at  the  comer  of  in- 
tersection of  Madison  and  Harrison  streets, 
at  a  point  on  said  sidewalk  about  30  feet 
west  of  the  east  line  of  said  residence  prop- 
erty; that  said  walk  was  then,  and  had  been 
for  many  months  previous  thereto,  in  a  de- 
fective, unsafe,  and  dangerous  condition; 
that  ttie  boards  and  stringers  thereof  were 
rotten  and  unsound,  and  that  said  boards 
were  loose  and  unattached  to  said  stringers ; 


•For  other  cases  see  uime  topic  and  section  NUMBER  In  Dec.  ft  Am.  Diss.  1907  to  data,  ft  Beportsr  ladaxaa 


Digitized  by  LjOOQIC 


Iowa) 


HARRISON  T.  CITY  OP  ALBIA, 


817 


tbttt  on  the  day  In  question  tbe  undersigned 
-was  walking  aloag  said  sidewalk  proceeding 
westward,  accompanied  by  Miss  Helen  Wil- 
liams and  Miss  £iditli  Williams;  tbat  the 
boards  of  said  walk  being  loose,  the  foot  of 
the  undersigned  became  caught  In  a  hole, 
and  she  was  thrown  to  the  ground  with 
tremendous  violence,  fracturing  two  of  her 
ribs  and  Injuring  her  collar  bone,  and  inflict- 
ing other  severe  and  serious  injuries  upon 
ber  person." 

The  petition  charges  the  defendant  with 
negligence  In  the  following  particulars: 

"(2)  That  some  time  prior  to  November 
28,  1904,  tbe  defendant  built  and  construct- 
ed a  board  sidewalk  running  east  and  west 
along  the  north  side  of  M«dison  street  be- 
tween Clinton  and  Harrison  streets  in  said 
city ;  said  Madison  street  being  at  the  time 
of  the  construction  of  said  sidewalk  and  up 
to  the  filing  of  this  petition  an  open  thorough- 
fare of  said  city  largely  used  by  tbe  gener- 
al public  In  daily  travel. 

"(3)  That  on  the  date  aforesaid,  and  for 
many  months  prior  thereto,  tbe  said  side- 
walk, bad  been  allowed  to  become  and  re- 
main in  an  unsafe  and  dangerous  condition 
of  disrepair  by  the  authorities  of  said  city 
having  control,  oversight,  and  supervision  of 
the  same.  That  the  boards  thereof  were 
broken,  detached  from  the  stringers,  and 
loose  at  either  end.  That  the  material  con- 
stituting said  sidewalk  was  rotten,  weak, 
and  wholly  unfit  and  nnsuited  to  the  pur- 
pose it  was  Intended  to  serve.  That  such 
decay,  disrepair,  and  dilapidation  rendered 
said  sidewalk  unsafe,  defective,  and  danger- 
ous. That  such  condition  was  open  and  no- 
torious, and  had  existed  for  many  months 
previous  to  said  date.  That  the  officials 
of  the  defendant  city  having  control,  over- 
sight, and  supervision  of  its  streets  and  side- 
walks had  express  notice  and  actual  knowl- 
edge of  the  unsafe,  defective,  and  danger- 
ous conditloif  of  said  sidewalk,  and  had  had 
such  notice  and  knowledge  for  a  long  period 
of  time,  or  by  the  exercise  of  reasonable 
diligence  could  and  would  have  acquired 
tbe  same. 

"(4)  That  on  said  date,  while  passing  along 
and  over  said  sidewalk,  the  plaintiff  sus- 
tained a  severe,  dangerous,  and  permanent 
injury  to  her  person  in  the  following  man- 
ner: As  she  was  proceeding  westward  on 
said  sidewalk,  one  of  the  boards  thereof,  be- 
ing loose  and  unattached,  turned  with  her 
as  she  stepped  upon  it,  tbrowing  her  to  tbe 
ground  with  tremendous  force  and  violence, 
fracturing  the  third  and  seventh  ribs,  and  per- 
haps others,  fracturing  the  clavicle  at  the 
outer  end,  twisting,  straining,  wrenching, 
and  lacerating  the  muscular  and  llgamenta- 
ry  tissues  in  that  region,  bruising  and  con- 
tusing her  breast,  shoulder,  and  body,  and 
profoundly  shocking  her  nervous  system. 
•  •«««• 

"(^  Tbat   said   Injury   was  sustained  by 
ha  on  said  sidewalk  of  the  defendant  which 
122N.W.-62 


was  under  the  control,  oversight,  and  su- 
pervision, of  the  said .  defendant  while  the 
plaintiff  was  in  the  exercise  of  proper  care, 
prudence,  and  diligence,  and  without  any 
fault  or  negligence  whatever  on  her  part  con- 
tributing in  any  degree  or  measure  thereto; 
but  that  said  injury  resulted  entirely  from 
the  gross  and  inexcusable  negligence  of  tbe 
defendant  in  falling  to  inspect  and  examine 
said  sidewalk  to  ascertain  its  condition,  in 
omitting  to  discover  the  unsafe,  defective, 
and  dangerous  condition  thereof,  and  in  neg- 
lecting to  repair  and  render  the  same  rea- 
sonably suitable  and  safe  for  public  travel 
thereover." 

In  an  amendment  to  her  petition  she  al- 
leged: "As  the  plaintiff  resides  in  Hiteman, 
and  Is  not  very  well  acquainted  with  the 
names  of  property  owners  In  Albia,  and  was 
not  when  tbe  said  accident  happened,  she 
cannot  therefore  state  definitely  the  name  of 
the  owner  of  the  lot  adjoining  the  place 
In  tbe  sidewalk  where  she  received  her  in- 
jury, except  that  it  was  at  a  point  going 
west  from  Clinton  street  along  on  the  north 
side  of  Madison  street,  not  far  from  midway 
between  Clinton  street  and  the  first  alley 
west."  The  trial  court  bottomed  its  ruling 
on  the  motion  to  direct  upon  the  proposition 
tbat,  as  the  notice  fixed  the  place  of  acci- 
dent something  like  210  feet  from  where  she 
testified  tha<  she  fell,  it  Is  and  was  insuffi- 
cient, and  plaintiff  could  not  recover.  Tbe 
petition  alleges,  as  will  be  noticed,  that  the 
entire  sidewalk  on  tbe  north  side  of  Madison 
street  and  between  Harrison  and  Clinton 
streets  was  out  of  repair  and  In  a  dangerous 
condition,  and  tbe  testimony  adduced  upon 
tbe  trial  tended  to  support  the  allegations. 
True,  plaintiff  in  her  notice  fixed  the  place  of 
Occident  something  like  210  feet  from  where 
it  occurred,  but  the  point  so  fixed  was  be- 
tween Harrison  and  Clinton  streets,  where 
it  was  charged  that  the  entire  sidewalk  was 
out  of  repair  and  in  a  dangerous  condition. 
Moreover,  plalntifTs  attorney  called  tbe  at- 
tention of  the  city  council  to  the  place  of 
the  accident  before  the  statute  had  barred 
tbe  action. 

The  sole  question  In  the  ease  Is  the  suffi- 
ciency of  the  notice  to  meet  the  statutory  re- 
quirement— that  It  give  the  time,  place,  and 
circumstances  of  the  accident  as  provided 
in  paragraph  1  of  section  3447  of  the  Code. 
The  only  defect  pointed  out  is  the  mistake 
as  to  place.  In  several  cases  we  have  stat- 
ed tbe  object  of  such  a  notice,  and  have  es- 
tablished rules  whereby  to  determine  its  suf- 
ficiency. In  Owen  v.  City  of  Pt  Dodge,  08 
Iowa,  281,  67  N.  W.  281,  we  said: .  "The  ob- 
ject of  the  notice  is  that  the  city  authorities 
may  investigate  the  question  of  the  defend- 
ant's liability  wUle  the  facts  are  fresh,  and 
the  evidence  Is  attainable;  and  reasonable 
certainty  as  to  the  place  and  circumstances 
of  tbe  Injury  Is  all  that  is  required.  It  In 
not  Intended  that  tbe  claimant  shall  state 
the  exact  spot  where  the  accident  bappen- 


Digitized  by  VjOOQ  l€ 


818 


122  NORTHWESTERN  REPORTER. 


(Iowa 


ed,  and  a  mistake  of  a  few  feet  ought  not 
to  defeat  the  action."  Again  In  Schnee  t. 
City  of  Dnbuqne,  122  Iowa,  469,  98  N.  W. 
298,  we  Bald:  "The  statutory  requirement  as 
to  i^otlce  must  be  reasonably  construed  with 
reference  to  the  purpose  for  which  It  was 
enacted.  The  object  of  the  statute  Is  to 
apprise  the  city  authorities  of  the  location 
of  the  defect,  and  tbe  circumstances  attend- 
ing the  accident  with  sucb  reasonable  ceiv 
talnty  as  shall  enable  them,  not  only  to  in- 
vestigate the  city's  liability  while  tbe  facta 
are  fresh,  but  also  to  ascertain  what  evi- 
dence there  may  be  of  tbe  conditions  then 
existing  and  tbe  character  of  the  injury 
while  witnesses  are  at  hand.  No  amend- 
ment of  the  notice,  however,  is  provided  for. 
It  Is  evident,  therefore,  that  it  would  be  un- 
just to  give  to  tbe  statute  so  strict  a  con- 
struction as  to  exclude  proof  of  all  facts 
relating  to  tbe  nature  and  cause  of  the  in- 
Jury,  and  tbe  defect  or  negligence  complain- 
ed of,  which  are  not  detailed  in  tbe  notice. 
The  statute  should  rather  have  a  liberal 
construction,  to  the  end  that  parties  having 
meritorious  claims  shall  not  be  cut  oS  by 
mere  tecbuicallty  as  to  the  form  of  notice 
required." 

In  Uusch  V.  City  of  Dubuque,  116  Iowa, 
402,  80  N.  W.  80,  this  same  question  was  be- 
fore us,  and  we  there  said:  "Reasonable  cer- 
tainty as  to  the  place  Is  all  that  was  re- 
quired. The  side  of  the  street  was  given 
and  the  defects  clearly  stated.  The  place 
was  about  150  feet  from  Eagle  Point  avenue 
—not  exactly  that  distance  as  Insisted  by  ap- 
pellant—and a  variation  of  31  feet  cannot 
be  held  fatal.  Nor  was  the  place  described 
as  in  front  of  No.  254,  as  seems  to  be 
thought.  It  was  opposite  to  it  along  the 
walk;  but  which  way?  It  was  between  Lin- 
coln avenue  and  Providence  street,  and  In 
quite  a  number  of  cases  this  has  been  held 
in  principle  sufficiently  definite.  In  City  of 
Lincoln  v.  O'Brien,  56  Neb.  761,  77  N.  W.  76, 
the  place  was  described  as  tbe  north  side  of 
Q  street  between  Eighteenth  and  Twentieth 
streets.  In  Lyman  v.  Hampshire  County, 
138  Mass.  74,  tbe  location  was  on  a  bridge 
of  considerable  length.  In  Lowe  v.  Inhab- 
itants of  Clinton,  133  Mass.  526,  it  was  fix- 
ed as  between  two  bouses  50  rods  apart 
In  each  of  the  above  cases,  however,  a  single 
defect  of  the  kind  described  appeared  with- 
in the  limits  designated,  and  the  notices  were 
adjudged  sufficient  Here  the  evidence 'on 
the  part  of  the  plaintiff  tended  to  show  that 
the  walk  from  Providence  street  to  the 
frame  house  was  in  substantially  the  same 
condition,  with  many  boards  loose  and  spikes 
projecting  in  several  places,  while  that  of 
defendant  was  to  tbe  effect  that  the  walk 
was  in  perfect  repair.  As  tbe  defendant  In- 
vestigated the  walk  to  the  extent  mentioned 
and  discovered  no  defects,  It  was  not  preju- 
diced by  plaintiff's  failure  to  locate  the  place 


within  the  few  feet  mentioned.  As  bearing 
on  the  question,  see  Owen  v.  City  of  Ft. 
Dodge,  86  Iowa,  281,  67  N.  W.  281 ;  Fopper 
V.  Tovm  of  WheaUand,  69  Wis.  623,  18  N. 
W.  614;  Brown  v.  Town  of  Southbury,  53 
Conn.  212, 1  AtL  819;  Harder  v.  City  of  Min- 
neapolis, 40  Minn.  446,  42  N.  W.  350;  Cross 
V.  City  of  Elmira,  88  Hun.  467.  33  N.  I.  Supp. 
947.  •  •  •  From  the  terms  of  the  no- 
tice, with  the  inquiries  suggested.  In  con- 
nection' with  the  peculiar  defecf  designated, 
we  think  the  authorities,  with  proper  dili- 
gence, could  have  discovered  the  locality  of 
the  projecting  spike  and  loose  plank  alleg- 
ed to  have  occasioned  the  injury  with  as 
much  certainty  as  possible  without  an  ac- 
curate survey." 

This  case  contains  a  review  of  the  author- 
ities, and  is  controlling  upon  the  proposition 
now  before  us.  Following  the  rule  announc- 
ed in  these  cases,  we  are  constrained  to  hold 
that  the  notice  in  view  of  tbe  nature  of  the 
negligence  charged  was  sufficient  and  that 
the  trial  court  erred  in  directing  a  verdict 
for  defendant  In  sucb  cases  the  nature  of 
the  defect  charged  and  the  negligence  count- 
ed upon  must  be  taken  into  account  Here 
it  was  allegred  that  the  entire  sidewalk  be- 
tween Harrison  and  Clinton  streets  was  out 
of  repair  and  dangerous,  and  that  plain- 
tiff was  injured  by  reason  of  that  fact  Tbe 
notice  contains  the  same  statement;  and, 
while  it  does  not  fix  the  Identical  place  de- 
scribed in  the  petition  or  testified  to  by  the 
witnesses,  the  variance  was  not  such  as  to 
amount  to  no  notice  or  to  such  a  mistake 
as  was  calculated  to  mislead  the  city  au- 
thorities. See,  also,  Buchmeier  v.  City,  138 
Iowa,  623,   116  N.   W.  686. 

If  the  defect  had  been  of  a  particular  ob- 
struction in  a  street  or  a  dangerous  hole 
therein,  a  different  question  would  arise. 
The  condition  of  the  entire  walk  between 
Harrison  and  Clinton  streets  was  in  issue, 
and,  had  the  city  council  investigated  the 
matter,  it  would  not  have  done  its  duty  with- 
out going  over  the  entire  walk  between  these 
two  streets. 

For  tbe  reasons  given  the  Judgment  must 
be,  and  it  is,  reversed. 


STATE  v.  HOGAN. 
(Supreme  Court  of  Iowa.     Oct  18,  1809^ 

Rape   (J   51*)— Evidencb— Idehtitt  of   Ac- 
cused. 

Evidence  on  a  trial  for  rape  k«U  to  iden- 
tity accused  as  the  guilty  person,  juatl^ing  a 
conviction. 

[Ed.  Note.— For  other  cases,  see  Rape,  Cent 
Dig.  I  77;   Dec  Dig.  {  51.*] 

Appeal  from  District  Court  Wapello  Coun- 
ty; M.  A.  Roberta,  Judge. 

The  defendant  was  convicted  of  having 
committed  the  crime  of  rape,  and  appeals. 
Affirmed. 


•Vw  Mhar  CUM  M*  Mun*  topic  and  mcUob  NUMBER  tn  Dm.  *  Am.  Dlci.  1M7  to  data,  *  B«port«r  ladoxer 


Digitized  by  LjOOQ  l€ 


Iowa) 


LINDSBY  V.  BOOQB. 


819 


Walter  S.  Com,  for  appellant  H.  W. 
Byers,  Atty.  Gen.,  and  Cbarles  W.  I^on, 
Asst  Atty.  Gen.,  for  tbe  Stata 

liADD,  X  Prosecutrix,  a  maiden  woman 
of  Irish  descent,  and  63  years  old,  was  malc- 
Ing  her  home  at  tlie  first  bouse  east  of  a 
ctanrch  at  the  comer  of  Market  and  Fifth 
streets.  In  returning  frtxn  a  store  she  passed 
op  Market  street  and  turned  east  on  Fifth 
street,  and  as  she  stepped  to  the  sidewalk 
leading  to  the  house  a  negro  seized  her  by 
the  collar,  dragged  her  down  tbe  terrace 
toward  the  church,  and  there  raped  her.  In 
the  struggle  she  seized  a  knife  in  the  hand  of 
her  assailant,  and  threw  It  on  the  grass 
where  it  was  found  shortly  afterwards.  A 
week  later  the  defendant  claimed  to  be  the 
owner  of  this  knife  in  the  presence  of  sev- 
eral persons,  and  at  the  same  time,  in  the 
course  of  the  conversation  in  which  he  was 
asked  If  he  knew  anything  about  the  little 
Irish  woman  who  had  been  grabbed  out  on 
tbe  bin,  related  that  he  bad  had  intercourse 
with  a  white  woman  on  the  evening  in  ques- 
tion on  the  bill  near  the  church  on  Fifth 
street,  and  as  proof  that  he  was  not  hurt 
exhibited  hia  penis.  It  also  appeared  that 
he  complained  of  being  chapped  when  at 
work  4he  second  day  after  the  rape,  and 
washed  his  underclothes,  and  later  that  he 
explained  to  one  fellow  prisoner  that  noth- 
ing could  be  done  with  him,  as  his  clothes 
bad  been  washed  and  were  at  the  laundry, 
and  to  another  that  he  had  not  thought  when 
be  claimed  the  knife.  The  foregoing  is  sub- 
stantially all  the  evidence  adduced  tending 
to  identify  the  accused  as  the  person  who 
committed  the  offense,  and,  as  we  think, 
fnmlsbes  such  support  to  the  verdict  as  to 
preclude  any  interference  therewith.  Wheth- 
er the  knife  really  belonged  to  defendant, 
as  well  as  the  veracity  of  several  of  the  wit- 
nesses, was  for  the  jury  to  determine.  Con- 
ceding, as  might  weH  have  been  found,  that 
the  knife  was  his,  and  that  the  assailant  of 
prosecutrix  was  armed  therewith,  as  she  tes- 
tified, then  these  circumstances,  in  connection 
with  the  culpable  admissions  of  defendant, 
quite  satisfactorily  point  him  out  aa  the 
gnllty  person.  No  ruling  of  the  trial  court 
other  than  that  the  evidence  sustained  the 
verdict  is  challenged. 

The  judgment  is  affirmed. 


lilNDSEY  V.  BOOGB  et  al. 

(Supreme  Conrt  of  Iowa.     Oct  20,  1909.) 

1.  TAiATiON  (I  705*)— Notice  or  Expieation 

or     RiOET     OF      BEDElfPnOIT  —  COUFLIAZTCE 

WITH  STATcn:. 

The  requirements  of  a  statute  relating  to 
service  of  notice  of  expiration  of  right  of  re- 
demption from  a  tax  sale  must  be  fully  met; 


and,  if  there  be  any  substantial  omission  there' 
from,  the  riglit  of  redemption  Is  not  cut  oS. 

[Ed.    Note.— For   other   cases,   see   Taxation, 
Cent  Dig.  {  1424;  Dec  Dig.  i  705.*] 
2.  Taxation    d  707*)— Tax   Salibs— Expiba- 

noN  OF  RiGUT  or  redemption  —  Notiob — 

Afdtdavit— SomClENCT. 

Under  Code,  {  1441,  relating' to  notice  of 
expiration  of  ri^ht  of  redemption  from  a  lax 
sale,  and  providmg  for  an  affidavit  to  be  filed 
with  the  treasurer,  showing  tbe  making  of  the 
service,  the  manner  thereof,  the  time  when  and 
the  place  where  made,  and  under  whose  direc- 
tion, such  affidavit  to  be  made  by  the  owner  of 
the  certificate,  or  by  his  agent  or  attorney, 
where  tbe  purchaser  of  the  certificate  signed  the 
notice  as  tbe  lawful  holder  thereof,  and  it  ap- 
peared from  his  aflBdavit  that  he  was  then  th« 
lawfnl  holder  of  the  certificate,  and  that  ht 
served  the  same  on  the  owner  of  the  property 
by  causing  the  notice  to  be  published,  giving 
the  dates  and  the  places  where  published,  this 
sufficiently  showed  that  the  service  was  under 
his  direction,  though  the  affidavit  did  not  so 
specifically  state. 

[Ed.  Note.— For  other  cases,  see  Taxatioa 
Cent.  Dig.  t  1426;  Dec.  Dig.  i  707.*] 

Appeal  from  District  Court,  Woodbury 
County;  David  Mould,  Judge. 

Suit  in  equity  to  redeem  certain  property 
from  tax  sales.  The  trial  court  sustained  a 
demurrer  to  plaintiff's  petition,  and,  plain- 
tiff electing  to  stand  thereon,  decree  was  ren- 
dered against  him  for  costs.  He  appeals 
Afilrmed. 

Alfred  Pizey,  for  appellant  B.  P.  Fart, 
for  appellees. 

DEEMER,  J.  Plaintiff  was  the  owner  of 
certain  lots  In  tbe  city  of  Sioux  City,  and  h« 
brings  this  action  in  equity  to  set  aside  ce^ 
tain  tax  deeds  issued  to  one  J.  Hunter,  and 
to  redeem  the  lots  from  the  said  sale.  He 
also  asks  that  he  be  permitted  to  redeem 
from  a  second  tax  sale  of  said  lots  to  d» 
fendant  D.  S.  Lewis  and  to  R.  B.  Martin.  It 
appears  from  the  record  that  on  December  fi, 
1898,  a  tax  sale  of  the  premises  In  question 
was  had,  and  that  one  J.  Hunter  was  the 
purchaser  thereat;  that  this  sale  was  made 
for  the  taxes  of  the  year  1897.  On  Decem- 
ber 7,  1903,  tbe  lots  were  again  sold  at  tai 
sale,  for  the  taxes  of  the  year  1902,  to  D. 
S.  Lewis  and  R.  B.  Martin,  respectively.  Ob 
the  13th  day  of  February,  1902,  Hunter,  the 
holder  of  the  first  certificate  of  sale,  gave  no- 
tice of  the  execution  of  a  tax  deed  and  of 
tbe  expiration  of  the  period  of  redemption 
to  Mary  E.  Lewis,  who  was  the  owner  of  the 
lots  at  tbe  time  of  tbe  tax  sale,  and  who 
continued  to  be  such  owner  until  Decembe? 
24,  1902.  This  notice  recited  that  Huntei 
was  the  purchaser  of  tbe  lands  for  the  tax- 
es of  1897,  and  that  he  was  then  the  lawful 
bolder  of  the  certificate  of  purchase,  and  h* 
signed  his  name  as  "lawful  holder  of  ce^ 
tificate."  This  notice  was  served  by  pub' 
llcation,  proper  affidavit  of  that  fact  bein| 
filed  by  the  publisher,  and  also  by  Hunter 
In  the  last  affidavit  be  recited  that  be  was 


«For  other  eases  sm  same  topic  and  secUon  NUMBUR  is  Dec.  A  Am.  Digs.  1M7  to  dat«^  *  Roporter  Index** 


Digitized  by  VjOOQ  l€ 


szo 


122  NORTHWESTERN  REPORTER. 


(Iowa 


the  lawful  holder  of  the  certificate.  He 
attached  a  copy  of  bis  notice  and  recited 
facte  showing  proper  publication  thereof. 
This  action  was  brought  on  May  28,  1907, 
and  thereafter  notices  of  redemption  were 
served  upon  defendants  Booge  and  Hunter, 
-stating  that  deeds  would  be  Issued  pursuant 
to  the  sale  for  the  taxes  of  the  year  1902. 
Thereafter  plaintiff  filed  a  supplemental  pe- 
tition, asking  that  the  treasurer  be  enjoined 
from  executing  and  delivering  the  deeds  pur- 
suant to  the  sale  of  1903,  asking  that  the 
tax  certificates  issued  pursuant  to  the  sale 
be  adjudged  null  and  void,  and  for  other  re- 
lief. It  appears  that  when  these  last  notices 
to  make  redemption  were  served,  Booge  was 
the  owner  of  one  lot  and  Hunter  of  the  oth- 
er. It  is  claimed  that  the  defendants  Booge, 
since  the  year  1005,  have  been  In  the  pos- 
session of  the  lots,  daimlng  title  thereto, 
and  It  Is  also  claimed  that  D.  S.  Lewis  and 
Emma  L.  Little,  in  whose  names,  as  hold- 
ers, the  notices  of  the  expiration  of  time  for 
redemption  were  signed,  and  served,  were  not 
then  the  lawful  holders  of  the  certificates 
of  purchase,  but  that  they  were  in  fact  own- 
ed and  held  by  the  defendants  Booge  in 
their  own  right  and  for  their  own  use  and 
benefit  It  further  appears  that  the  defend- 
ants Booge  and  Hunter  are  claiming  title  to 
the  lots  under  and  by  virtue  of  the  treasur- 
er's deed  which  was  Issued  to  Hunter  on 
June  7,  1002.  If  this  deed  be  valid,  there 
is  no  occasion  to  consider  the  second  sale  of 
the  premises,  for  plaintiff  was  by  the  tax 
deed  deprived  of  all  title  to  the  land  in  the 
event  it  be  found  that  said  treasurer's  deed 
was  properly  issued.  The  only  claim  made 
on  this  appeal,  with  reference  to  the  tax 
sale  of  1898,  is  that  plaintirs  right  to  re- 
demption was  not  cut  off  for  the  reason  that 
the  affidavit  of  the  service  of  notice  does  not 
meet  the  requirements  of  the  statute,  in  that 
it  does  not  state  "under  whose  direction  the 
service  of  the  notice  was  made." 
'  The  statute  relating  to  this  matter  pro- 
vides: "Service  shall  be  complete  only  after 
an  affidavit  has  been  filed  with  the  treasurer, 
showing  the  making  of  the  service,  the  man- 
ner thereof,  the  time  when  and  the  place 
where  made,  and  under  whose  direction  the 
same  was  made;  such  afiidavit  to  be  made 
by  the  holder  of  the  certificate  or  by  his 
agent  or  attorney ;  •  ♦  ♦  which  affidavit 
shall  be  filed  by  the  treasurer  •  •  •  and 
the  right  of  redemption  shall  not  expire  un- 
til ninety  days  after  service  is  complete." 
Code,  {  1441.  The  general  rule  is  that  the 
rctiuirements  of  such  a  statute  must  be  ful- 
ly met.  This  is  one  of  the  steps  necessary 
to  cut  off  the  right  of  redemption;  and.  If 
there  be  any  substantial  omission  therefrom, 
the  right  of  redemption  la  not  cut  off.  See 
Grimes  v.  Ellyson,  130  Iowa,  286,  105  N.  W. 
418;    Peterson  v.  Wallace  (Iowa)  118  N.  W. 


37;  Barcroft  et  al.  v.  Mann  et  al.,  125  Iowa, 
530,  101  N.  W.  276;  Bradley  v.  Brown,  75 
Iowa,  180,  39  N.  W.  268;  Ashenfelter  v. 
Selling  et  al.  (Iowa)  119  N.  W.  984.  Turn- 
ing again  to  the  statute,  It  will  be  observed 
that  the  affidavit  of  service  must  show  the 
manner  thereof,  the  time  when  and  the  place 
where  made,  and  under  whose  direction  the 
same  was  made.  All  statutes  must  be  given 
a  reasonable  construction;  and,  if  it  fairly 
appears  from  the  notice  and  the  affidavit 
who  made  or  gave  the  directions  for  the 
service,  this  is  all  that  should  in  reason  be 
required.  It  will  be  noticed,  in  referring 
to  the  facts  disclosed  by  this  record,  that 
Hunter  was  the  purchaser  of  the  lands  for 
the  taxes  of  1897;  that  he  acquired  the  cer- 
tificate of  purchase  thereof;  that  be  signed 
the  notice,  which  was  properly  addressed  to 
Mary  E.  Lewis,  as  the  lawful  holder  of  the 
certificate,  and  it  appears  from  his  affidavit 
that  be  was  the  then  lawful  bolder  of  the 
certificate;  and  Ibat  be  served  the  same  on 
Mary  E.  Lewis  by  causing  the  notice  to  be 
published  three  times  in  a  proper  newspajjer, 
giving  the  dates  and  the  places  where  pub- 
lished. This,  it  seems  to  us,  clearly  and 
unmistakably  states  that  the  service  was  un- 
der his  direction.  It  would  have  been  a 
work  of  supererogation  to  have  added,  after 
saying  that  he  was  the  purchaser  and  law- 
ful holder  of  the  certificate,  and  that  he 
served  the  same,  that  he  did  so  under  his 
own  direction.  That  sufficiently  appears  both 
from  the  notice  and  from  the  affidavit  of 
publication.  This  being  true,  and  no  re- 
demption having  been  made  from  the  first 
sale.  It  seems  to  us  that  the  plaintiff  lost  bis 
title  to  the  lots,  and  that  the  trial  court 
correctly  denied  him  the  relief  prayed  in  his 
petition. 

The  decree  seems  to  be  right,  and  it  Is 
affirmed. 


CHICAGO,  M.  &  S.  P.  RT.  CO.  v.  MOXONA 
COUNTY  et  al. 

(Supreme  Court  of  Iowa.    Oct.  20,  1900.) 

J.  Appeal  ano  Error  (8  89o*)  — Trial  Db 
Novo  —  Questions  Not  WITHI^f  Scope  of 
Issues. 

Tlie  Supreme  Court  on  appeal  in  an  equita- 
ble action,  triable  de  novo,  may  not  conRidpr  a 
point  not  witbin  the  scope  of  the  issues  as  form- 
ulated in  the  court  below. 

[Ed.  Note. — FOr  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  t  3G40;    Dec.  Dig-  *  Si)5*] 

2.  Drains  (8  81»)— Assessments— Objections. 
The  objections  to  the  confirmation  of  an  as- 
sessment of  benefits  for  the  constniction  of  a 
drain  are  not  in  the  nature  of  a  general  denial 
putting  in  issue  the  regularity  of  each  step  of 
the  drainage  proceedings ;  and  only  the  issues 
fairly  presented  by  the  objections  can  l>e  consid- 
ered. 

[Ed.  Note. — For  other  cases,  see  Drains,  Cent 
Dig.  8  81 ;   Dec.  Dig.  8  81.*] 


•For  oOur  cue*  sea  same  topic  and  lecUcn  NUMBER  in  Dec.  *  Am.  Dig*.  1907  to  d«t«,  *  R«port«r  Index** 


Digitized  by 


Google 


town) 


CHICAGO,  M.  &  8.  P.  RY.  CO.  v.  MONONA  COUNTY. 


821 


5.  Drains  (S  81*)— Assessments— Objections. 

The  objections  to  the  conflrmation  of  an  as- 
sessment on  a  railroad  right  of  way  for  Che  con- 
struction of  a  drain  that  the  classification  was 
illegal  because  the  property  was  not  in  fact  ben- 
efited by  the  improvement,  or,  if  benefited,  the 
amount  assessed  was  excessive,  and  that  the 
property  was  not  classified  or  assessed  according 
to  its  legal  subdivisions  or  descriptions,  do  not 
raise  the  question  of  the  invalidity  of  the  assess- 
ment because  of  error  in  classifying  the  right  of 
way  and  assessing  the  benefits  thereto  In  par- 
cels, and  not  as  an  entirety. 

[Ed.  Note.— For  other  cases,  see  Drains,  Cent. 
Dig.  {  81 ;  Dec.  Dig.  t  81.»] 

4.    CONSTITUTIONAI,  LAW  (J  70*)— LEGISLATIVE 

PowBHS— Judicial  Review. 

The  inclusion  of  property  within  the  bound- 
aries of  a  drainage  district  is  an  exercise  of  leg- 
islative power  which  the  courts  cannot  review 
or  set  aside. 

[Ed.  Note.— For  other  cases,  see  Constitution- 
al Law,  Cent  Dig.  {  128 ;   Dec.  Dig.  i  70.*) 

6.  Drains  ({  82*)  —  Assessments  —  Judicial 
Review. 

The  courts  will,  when  their  jurisdiction  U 
properly  invoked,  review  an  assessment  for  the 
construction  of  a  drain,  or  the  apportionment  of 
the  cost  thereof,  and  will  apply  the  appropri- 
ate remedy  where  the  same  is  inequitable. 

[Ed.  Note.— For  other  cases,  see  Drains,  Cent. 
Dig.  ;S  83-87 ;  Dec.  Dig.  i  82.*] 
6.  Drains  (J  78*)— Assessment— Description 

or  Property — Sufficiency. 

As  the  statute  relating  to  drainage  districts 
is  to  be  construed  liberally,  and  not  so  as  to  de- 
feat its  purpose,  an  assessment  on  a  railroad 
riglit  of  way  in  described  40-acre  tracts  for  the 
construction  of  a  drain  sufficiently  describes  the 
property,  for  the  boundaries  may  be  procured  in 
the  technical  language  of  the  surveyor  whenever 
that  is  desired. 

[Ed.  Note. — For  other  cases,  see  Drains,  Cent 
Dig.  J  76;  Dec  Dig.  t  78.*] 

Appeal  from  District  Court,  Honona  Coun- 
ty;  F.  R.  Gaynor,  Judge. 

The  plaintiff  appeals  from  the  Judgment  of 
the  district  court  affirming  an  assessment 
made  against  it  for  benefits  alleged  to  have 
accrued  to  its  road  or  right  of  way  by  the 
Improvement  of  a  drainage  district.  Af- 
firmed. * 

Shall,  Famswortli  &  Sammis,  for  appel- 
lant.   J.  W.  Anderson,  for  appellees. 


WEAVER,  J.  The  plalntlfTs  line  of  rail- 
way crosses  the  drainage  district  and  Inter- 
sects therein  25  different  40-acre  tracts.  The 
commissioners  appointed  for  that  purpose  as- 
sessed the  benefit  of  the  drainage  systeu)  to 
said  railroad  at  $182.47,  distributing  the 
same  upon  the  road  in  the  several  40-acre 
tracts  in  sums  varying  from  55  cents  to  $19.- 
50  according  to  the  classlflcatlon  adopted 
by  said  commissioners.  At  the  hearing  be- 
fore the  board  of  supervisors  upon  the  com- 
missioners' report,  the  railway  company  ap- 
peared by  counsel,  and  objected  to  the  asses^ 
ments  made  upon  Its  property,  assigning  the 
following  grounds  therefor:  "(1)  That  said 
railway  company  has  no  land  in  such  drain- 
age benefited  by  the  location  and  construction 


of  the  proposed  drainage  ditch.  (2)  That  the 
commissioners  appointed  by  this  board  have 
not  described  the  property  of  this  railway 
company  according  to  any  legal  or  recognized 
subdivision.  (3)  That  the  said  commission- 
ers' as.sessment  against  this  company  is  not 
an  equitable  apportionment  of  the  cost,  ex- 
pense, cost  of  construction,  fees,  and  damngos 
for  such  improvement  (4)  That  the  said 
commlsslouers  have  classified  the  property  of 
said  railway  company  in  said  matter  as  high 
as  00  per  cent.,  whereas  the  only  property  of 
said  railway  company  is  its  right  of  way,  and 
a  railroad  right  of  way  would  be  the  least 
benefited  of  any  property  In  said  drainage 
district.  (5)  That  the  said  property  in  said 
drainage  district  of  said  railway  company 
consists  of  an  easement  over  the  land  and 
right  of  way  for  the  construction  of  a  road- 
bed and  the  operation  of  railroad  trains 
thereon,  and  such  right  of  way  is  not  benefit- 
ed at  all,  and,  if  so,  it  is  the  least  benefited 
of  any  property  in  said  drainage  district,  and 
should  take  the  lowest  per  cent,  dasslflcation 
of  any  property  in  said  district  (6)  That  no 
legal  classification  or  easement  has  been 
made.  (7)  That  the  property  of  said  com- 
pany is  not  described  according  to  its  legal  or 
recognized  subdivisions,  as  required  by  law, 
upon  which  said  assessment  and  classifica- 
tion has  been  made,  and  that  such  descrip- 
tion of  said  company's  property  so  attempt- 
ed to  be  assessed  and  classified  is  too  indefi- 
nite and  uncertain  to  make  said  classification 
and  assessment  legal.  (8)  That  the  amount 
assessed  against  the  property  of  said  rail- 
way company  is  disproportionate  and  inequi- 
table as  to  other  property  in  said  drainage 
district"  After  hearing  the  evidence  in  sup- 
port of  said  objections,  the  I>oard  overruled 
the  same,  and  confirmed  and  established  the 
assessment  as  made  and  reported  by  the  com- 
missioners. Thereafter  and  In  due  time  the 
company  appealed  from  said  order  to  the  dis- 
trict court,  stating  In  Its  notice  that  it  deem- 
ed itself  aggrieved  by  the  assessment  of 
$182.47  and  by  the  action  of  the  board  of 
supervisors  in  refusing  to  reclassify  the  lands 
or  reduce  or  annul  the  assessment ,  thereon, 
and  in  approving  and  affirming  the  report  of 
the  commissioners.  The  evidence  introduced 
upon  appeal  in  addition  to  the  record  of  the 
proceedings  in  establishing  the  drainage  dis- 
trict and  in  assessing  the  benefits  therefrom 
was  principally  of  an  expert  character  by 
engineers  as  to  the  topography  of  the  district 
adjacent  to  the  right  of  way  and  the  benefit 
or  lack  of  benefit  arising  from  said  improve- 
ment to  the  railway  property.  The  district 
court  reaffirmed  the  assessment  complained 
of,  and  the  railway  company  appeals  to  this 
court 

1.  The  first  and  chief  contention  of  the 
appellant  in  its  argument  to  this  court  is  tliat 
the   commissioners   erred    in    attempting   to 


•Vor  othM  cues  fee  Hun*  topic  and  lecUon  NUMBER  In  Dec.  A  Am.  Diss.  1907  to  date,  &  Reporter  Indexes 


Digitized  by 


L-oogle 


822 


122  NOBTHWESTBBN  REPOBTER. 


(Iowa 


daaslfy  the  railroad  right  of  way,  and  assess- 
Ing  the  benefits  to  the  same  In  parcels  or  frac- 
tions, and  not  to  the  railway  property  within 
the  district  as  an  entirety,  and  on  this  prop- 
osition we  are  cited  to  In  re  Johnson  Drain- 
age District,  118  N.  W.  380,  where  it  was  held 
that  the  statute  does  not  contemplate  the 
dassiflcatlon  and  assessment  of  a  railroad 
right  of  way  in  like  manner  as  agricultural 
lands  are  dealt  with  in  drainage  proceedings, 
and  that  a  ditch  tax  or  assessment  was  not 
made  InTalld  becanse  "assessed  in  a  lump 
sum  on  the  entire  holding."  Appellees  insist 
that  this  objection  was  not  raised  in  the 
court  Itelow,  and  should  not  be  considered 
for  the  first  time  here.  The  situation  In  this 
respect  Is  explained  when  we  say  that  the 
decidon  from  which  the  present  appeal  is 
taken  was  entered  in  the  district  court  on 
October  1,  1908,  while  our  opinion  in  the 
Jolinson  Case  was  not  handed  down  until 
November  23,  1908.  It  Is  quite  clear,  we 
tbiok,  that  the  objection  now  urged  was  not 
In  mind  of  counsel  in  formulating  the  issues 
to  be  tried,  nor  was  it  passed  upon  by  the 
trial  court  The  appellant's  objections  were 
in  writing,  and  were,  as  we  have  seen,  to  the 
effect  (1)  that  the  railroad  company  has  no 
land  benefited  by  the  improyement;  (2)  that 
the  commissioners  have  failed  to  clearly  and 
specifically  describe  the  property  according  to 
Its  legal  subdirlsions ;  (3)  that  the  assess- 
ment is  Inequitable;  (4)  tliat  the  property 
consists  of  a  right  of  way  only,  and  recelTes 
DO  benefit  from  the  drainage,  or,  if  so,  its 
benefit  is  very  slight,  and  should  be  classified 
at  the  lowest  per  cent  mentioned  in  the  re- 
port ;  (6)  that,  no  legal  classification  or  as- 
sessment has  been  made;  and  (7)  that  the 
description  of  the  property  is  too  indefinite 
and  uncertain  to  make  the  classification  and 
assessment  legal.  While  it  may  be  true,  as 
counsel  suggest  that  upon  the  appeal  of  an 
equitable  action  triable  de  novo  in  this  court 
It  Is  no  sufficient  answer  to  a  pertinent  prop- 
osition of  fact  or  law  that  It  was  not  consld- 
wed  In  the  court  below,  yet  it  is  certainly  an 
Insuperable  objection  to  its  consideration  that 
It  is  not  within  the  scope  of  the  issues  as 
formulated  in  that  court  The  objections 
made  to  the  confirmation  of  the  assessment 
are  not  In  the  nature  of  a  general  denial 
putting  in  Issue  the  regularity  of  each  step 
of  the  drainage  proceedings.  Indeed,  it  Is 
doubtful  whether  such  Issue  presenting  no 
specific  ground  of  complaint  is  allowable  in 
this  class  of  cases.  Counsel,  recognizing  this 
situation,  have  set  forth  in  detailed  and  spe- 
cific form  the  several  reasons  why  the  report 
of  the  commissioners  should  not  be  confirmed 
and  approved  so  far  as  it  relates  to  the  ap- 
pellant's property,  and  these  present  the  only 
questions  Into  which  on  appeal  the  courts 
are  authorized  to  look.  Reading  these  ob- 
jections to  find  what  the  lower  court  was  ask- 
ed to  consider  and  determine,  we  find  that 
appellant  was  not  denying  the  right  or  au- 


thority of  the  commissioners  to  classify  its 
property  for  the  purposes  of  assessment  but 
was  insisting  tliat  the  classification  was  il- 
legal because  the  property  was  not  iu  f^ct 
benefited  by  the  improvement  or,  if  I>eneflted 
at  all,  the  amount  assessed  thereon  was  ex- 
cessive and  inequitable,  and  that  the  property 
of  the  company  was  not  cdasslfied  or  assess- 
ed according  to  its  legal  or  ■  recognized  sub- 
divisions or  descriptions.  Stated  in  other 
words,  the  case  as  presented  and  tried  below 
involved  these  Inquiries  only:  Does  this  rail- 
road property  receive  any  audi  benefit  from 
the  Improvement  of  the  drainage  district  as 
Justifies  its  inclusion  therein  and  its  assess- 
ment with  any  part  of  the  expense  thereof? 
If  it  is  properly  required  to  contribute  to 
sudi  expense,  is  the  assessment  excessive  or 
inequitable?  Is  such  assessment  Invalidated 
or  rendered  nonenforceable  becanse  of  the 
manner  and  method  in  which  the  property 
was  classified  by  the '  commissioners?  On 
each  of  these  propositions  the  trial  court  ap- 
pears to  tiave  found  against  the  appellant 
Without  attempting  to  decide  whether,  if 
timely  made,  the  objection  to  the  authority 
of  the  commissioners  to  classify  the  property 
In  any  manner  would  be  a  fatal  defect  in  the 
assessment,  we  sliall  consider  only  those  is- 
sues whidi  we  conceive  are  fairly  pieaented 
by  the  record. 

2.  The  inclusion  of  the  pn^ierty  wiHilA  tbe 
boundaries  of  the  district  is,  as  we  have  bere- 
Inbefore  held,  an  exercise  of  I^Jslative  pow- 
er which  tbe  courts  cannot  review  or  set 
aside.  See  Ross  v.  Supervisors,  128  Iowa, 
427,  104  N.  W.  B06,  1  li.  R.  A.  (N.  fi.)  431, 
and  cases  there  cited.  But  the  courts  may, 
and  when  their  jurisdiction  is  properly  in- 
voked will,  review  the  assessment  or  appor- 
tionment of  the  cost  of  the  improvement  and, 
if  inequitable  or  unjust  apply  the  appro- 
priate remedy.  Under  the  evidence  In  this 
court  as  prqpented  by  the  record,  we  cannot 
say  that  the  railway  property  is  not  substan- 
tially benefited  by  the  drainage.  The  right 
of  way  through  the  district  extends  along 
low  lands  of  a  wet  characto:  and  subject  to 
overfiow,  and,  although  the  appellant  lias 
raised  its  embankment  and  protected  it  with 
rlp-rapplng  to  avoid  damage  from  this 
source,  it  is  not  an  unreasonable  conclusion 
that  additional  drainage  which  aids  in  any 
appreciable  degree  to  hasten  the  discharge 
of  the  flood  waters  and  the  drainage  of  the  soil 
on  which  the  embankment  rests  must  be  of 
material  benefit  to  such  property  and  add 
another  element  of  safety  to  the  road  as  a 
highway  of  travel  and  commerce.  We  are 
therefore  of  the  opinion  that  the  board  of 

fupervlsors  and  the  district  court  were  right 
\i  holding  the  property  to  be  chargeable  with 
its  just  proportion  of  the  cost  of  the  improve- 
ment Nor  are  we  able  to  see  that  the  assess- 
ment is  In  the  least  excessive.  Some  five 
miles  or  more  of  the  railroad's  right  of  way 
is  indoded  in  the  drainage  district  and  th» 


Digitized  by 


Google 


Iowa) 


FQULKB  T.  TOWN  OP  AGENOT  OITT. 


823 


cost  of  tbe  tmproT^ment  aggregates  a  large 
mm,  and.  If  the  appellant  la  to 'be  assessed 
anything,  tbe  sum  of  $182.47  with  which  it 
has  been  charged  does  not  seem  to  be  Inequi- 
table or  oppressive. 

S.  The  objection  that  the  description  of  the 
property  is  too  indefinite  or  uncertain  to  sup- 
port the  assessment  is  without  merit  It  Is 
sought  to  bring  thia  case  within  the  rule  of 
those  familiar  precedents  that  hold  that  the 
description  of  property  as  "a  part"  of  a  given 
description  without  locating  or  describing  the 
part  intended  by  words  or  terms  suggesting 
means  of  Identlflcatlon  is  too  indefinite  and 
ancertain  to  sustain  conveyances,  assess- 
ments, tax  sales,  and  tax  deeds,  but  such 
we  think  is  not  the  condition  of  this  record. 
It  is  a  recognized  maxim  of  the  law  that 
"that  is  certain  which  can  tie  made  certain." 
The  assessment  here  is  upon  the  property  or 
right  of  way  of  the  appellant  In  certain  de- 
scribed 40-acre  tracts.  It  is  not  a  mere  float 
which  no  one  can  designate  with  certainty. 
It  Is  a  fixed,  visible,  distinct  and  separate 
tract,  the  boundaries  of  which  can  readily 
be  procured  in  the  technical  language  of  the 
surveyor  or  engineer  whenever  that  is  desir- 
ed. The  statute  is  to  foe  construed  liberally, 
and  not  with  such  undue  strictness  as  to 
defeat  the  purpose  which  it  was  enacted  to 
promote.  Moreover,  it  is  at  least  question- 
able whether  mere  tndeflniteness  In  the  de- 
scription of  property  within  the  district  af- 
fords any  ground  of  objection  by  the  owner 
to  the  validity  of  an  assessment. 

We  are  satisfied  with  the  conclusion  reach- 
ed l>y  the  trial  court  and  the  decree  appeal- 
ed from  is  affirmed. 


FOULKE  V.  TOWN  OF  AGENCY  CITTetal. 
(Supreme  Court  of  Iowa.    Oct  19,  1909.) 

1.  Dedication  (f  20*)— Evidxrob  of  Dedica- 
tion. 

While  mete  use  is  not  in  itaelf  ordinarily 
sufficient  to  establish  a  public  way  by  prescrip- 
tion, it  is,  when  long  continued  with  knowledge 
of  tbe  owner,  a  fact  of  importance  as  bearing 
on  the  dedication,  express  or  impll^,  to  the 
public. 

[Eld.  Note.— For  other  cases,  8e»  Dedication, 
Cent  Dig.  If  17-30;   Dec  Dig.  |  20.*] 

2.  Vendos  and   Pubchasek   (I   224*)— Quir- 
CLAm  Deeds— RiOBT  or  Grantee. 

A  grantee  in  a  quitclaim  deed,  who  takea 
with  express  notice  of  the  rights  of  tbe  public  in 
a  way  over  the  land,  can  asaert  no  right  in  the 

e remises  which  could  not  have  been  asserted  by 
is  grantor. 

[H!d.  Note.— For  other  cases,  see  Vendor  and 
Purchaser,  Cent  Dig.  i  468 ;  Dec  Dig.  i  224.*] 

&  Dedication  ({  20*)— Wats— Aoquiescencx 
IN  PuBUo  Uses. 

Where  for  over  80  years  the  public  had 
been  accustomed  to  use  a  way  as  a  means  of 
access  to  a  depot,  and  as  a  continuous  street  for 
travel,  and  the  town  at  different  times  bad  as- 
sumed authority  over  the  way,  grading  it  with- 
out objection  from  the  owner,  who  had  recog- 


nized the  right  of  the  town  and  of  the  public  by 
complying  with  orders  made  by  the  town,  a  dM^ 
icatfon  by  the  owner  to  the  public  was  shown. 
[Ed.  Note.— For  other  cases,  see  Dedication, 
Cent  Dig.  8{  17-30;  Dec  Dig.  |  20.*] 

Appeal  from  District  Court,  Wapello  Conn^ 
ty;  M.  A.  Roberts,  Judg& 

Action  to  restrain  the  defendants  from  us- 
ing or  improving  an  allied  public  street  in 
the  town  of  Agency  City.  Decree  for  the  de- 
fendants, and  plaintiff  appeals.    Affirmed. 

Jacques  &  Jacques,  for  appellant  W.  W. 
Epps,  for  appellees. 

WEAVER,  J.  Forty  years  or  more  pr^or 
to  the  commencement  of  this  action  the  Bur- 
lington &  Missouri  Railroad  Company  acquir- 
ed the  title  to  station  grounds  at  Agency  City 
The  tract  dedicated  to  this  use  was  1,067  feet 
in  length  east  and  west,  and  400  feet  In 
width  north  and  south.  Tbe  plat  of  Agency 
City  was  so  laid  out  as  to  provide  a  street 
known  as  Front  street  along  the  north  border 
of  the  station  grounds,  and  another  street 
known  as  Washington  avenue  on  the  south 
border.  Oak  street,  extending  north  and 
south,  was  Interrupted  by  the  railway  prop- 
erty; the  portions  north  and  south  of  said 
grounds  t)elng  known  respectively  as  North 
Oak  and  South  Oak.  In  other  words,  there 
was  no  platted  public  way  across  the  station 
yard.  The  station  building  was  erected  a 
little  east  of  the  street  line.  The  principal 
part  of  the  town  was  on  the  south  side  of  the 
railroad,  but  there  was  a  mill  and  warehouse 
on  the  north  side.  Tbe  travel  between  these 
buildings  and  tbe  town,  as  well  as  the  travel 
between  the  town  and  the  country  to  the 
north,  to  a  great  extent  at  least,  crossed  the 
yard  west  of  the  depot,  and  substantially 
along  the  line  of  a  path  or  track  connecting 
the  north  end  of  South  Oak  street  with  the 
south  end  of  North  Oak.  Tbe  lots  and  streets 
on  the  north  side  of  the  yard  were  mostly 
nninciosed  and  unimproved,  and  the  travel 
there  was  not  closely  confined  to  the  platted 
streets,  but  the  evidence  shows  with  reason- 
able clearness  that  tbe  way  across  the  station 
yard  had  the  care  and  oversight  of  the  town 
authorities  as  a  public  way.  This  general  sit- 
uation continued  without  substantial  change 
until  April,  1906,  when  the  Chicago,  Burling- 
ton &  Qulncy  Railroad  Company,  successor  in 
title  to  the  Burlington  &  Missouri  Company, 
baving  abandoned  this  part  of  its  line,  quit- 
claimed its  title  and  interest  in  the  station 
grounds  to  the  plaintiff,  making  its  convey- 
ance expressly  "subject  to  any  rights  of  the 
public  acquired  by  use  or  otherwise  in  Oak 
street  extended  across  said  land."  Tbe  town 
makes  claim  that  this  extension  of  the  streipt 
has  by  dedication  and  long-continued  use  be- 
come'a  public  way,  and  tbe  plaintiff,  denying 
the  validity  of  such  claim,  brings  this  action 
in  equity  to  establish  his  alleged  rights  in  the 
premises.    The  trial  court  found  with  the  de- 


Vor  otlMT  esMs  sm  Mm*  topic  and  Mctloa  NUUBIEB  In  Deo.  *  Am.  Digs.  IMT  to  dat%  *  Rsporter  Indexes 


Digitized  by 


Google 


824 


122  NORTHWESTERN  BEPORTEK. 


(lows 


fendants  upon  tb«  meritB  of  the  oontroreray, 
and  dismissed  tbe  petition. 

The  case  Involves  no  Intricate  qnestion  of 
law.  Some  of  tbe  material  qnestlons  of  fact 
are  In  dispute,  but  there  is  no  occasion  for  re- 
citing tbe  statements  and  recollections  of  the 
numerous  witnesses  called  In  support  of  tbe 
claims  of  tbe  contending  parties.  After  read- 
ing the  Record  with  care  we  are  satlsUed  with 
the  correctness  of  the  conclusion  reached  by 
the  trial  court  Though  not  undisputed,  the 
weight  of  tbe  testimony  is  to  tbe  effect  that 
for  a  full  generation  the  public  has  been  ac- 
customed to  use  this  way,  not  only  as  a 
means  of  access  to  the  depot  building,  but  as 
a  continuous  street  for  travel  and  traffic  be- 
tween the  north  and  south  sides  of  tbe  rail- 
road. It  Is  also  shown  that  the  town  by  its 
officers  at  different  times  assumed  authority 
over  tbis  way,  grading  and  worldng  It  across 
the  railroad  grounds,  and  that  the  railway 
company  without  objection  or  protest  recog- 
nized the  right  of  the  town  and  of  the  pub- 
lic In  this  respect  by  complying  with  orders 
and  notices  for  the  repair  of  the  wallcs.  and 
by  cutting  their  standing  trains  to  avoid  ob- 
structing travel.  In  connection  with  these 
facts  the  express  reservation  made  In  the 
deed  to  plaintiff  of  the  rights  ''acquired  by 
the  public  by  use  or  otherwise"  lu  the  Oab 
street  extension  is  very  significant  of  tbe  rail- 
road company's  attitude  in  the  matter.  It  is 
true,  as  we  have  already  said,  that  tbe  facts 
to  which  we  have  referred  are  in  a  large  part 
the  subject  of  dispute  between  the  witnesses, 
but  we  think  the  preponderance  is  clearly 
with  the  defendants.  While  mere  use  Is  not 
in  Itself  ordinarily  sufiScient  to  establish  a 
public  way  by  prescription,  it  is,  when  long 
continued  with  knowledge  of  the  owner  of 
the  property,  a  fact  of  much  importance,  as 
l)earing  upon  the  dedication,  express  or  Im- 
plied, to  the  public.  State  t.  Birmingham,  74 
Iowa,  410,  38  N.  W.  121.  Plaintiff's  title  was 
acquired  by  quitclaim  only  and  with  express 
notice  of  fhe  rights  of  tbe  public,  and  he  can 
assert  no  right  in  the  premises  which  could 
not  have'  been  asserted  by  bis  grantor.  The 
defendants  show  a  fairly  clear  case  of  dedi- 
cation by  the  railway  company,  to  say  noth- 
ing of  the  strength  of  the  public  claims  by 
prescription. 

The  decree  of  tbe  district  court  is  affirmed. 


SCOTT  V.  NAACKE  et  al. 

(Supreme  Court  of  Iowa.     Oct.  20,  1900.) 

1.  Intoxicating  Liquors  (J  6C»)  —  State- 
ments OF  Consent  to  Sale— Statutes. 
-  Code  1897,  §§  2440. 24.->0,  24!>2.  providini?  .for 
statements  of  consent  to  the  sale  of  IntosicatinK 
liquors,  and  canvass  of  only  one  statement  in 
any  one  year  after  10  days'  notice,  and  declar- 
ing that  the  statements  shall  >show  the  votioR 
precinct  of  the  signers  thereof,  and  tbe  date  of 
signing,  etc.,  must  be  literally  construed  (or  the 
protection   of   tbe   public,   and   statements   Glcd 


after  the  filing  of  the  original  and  the  notice  of 
hearing  cannot  be  considered. 

[Ed.  Note.— For  other  cases,  see  Tntozicatmg 
Liquors,  Dec.  Dig.  {  66.*]  ■ 

2.  Intoxicatino  Liquobs  (I  66*)  — State- 
ments OF  Consent  —  Withdraw  al  of 
Names. 

The  district  court,  in  an  action  to  test  the 
sufficiency  of  a  statement  of  consent  to  the  sale 
of  intoxicating  liquors,  properly  allowed  tbe 
withdrawal  of  names  from  tbe  statement. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Dec.  Dig.  {  66.*] 

3.  INTOXICATINO  LiQUOBS  (§  66*)  —  STATE- 
MENTS OF  Consent— Requisites. 

Under  Code  1897,  S|  2448.  2449,  providing 
that  statements  of  consent  to  the  sale  of  liquor 
shall  be  signed  by  a  certain  percentage  of  the 
voters  who  voted  at  the  last  preceding  election 
as  shown  by  the  poll  list  thereof,  tbe  names  oa 
the  statements  must  appear  on  the  respective 
poUbooks  of  the  last  preceding  general  election, 
and  names  appearing  on  the  statements,  not 
identical  with  tbe  corresponding  names  on  the 
poll  list,  cannot  be  counted. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Uquois,  Dec.  Dig.  i  66.*] 

4.  INTOXICATINO  LiQUOBS  (I  66*)  —  STATE- 
MENTS OF  Consent— SiONATUBE  bt  Mask- 
Witnesses. 

Where  the  signature  to  the  statement  of 
consent  to  the  sale  of  liquor  is  by  mark,  it  must 
be  witnessed,  or  it  cannot  be  counted. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Dec.  Dig.  {  66.*] 

5.  Intoxicating  Liquobs  (|  66*) — Statement 
OF  Consent— Date  of  Signing. 

Code  1897,  (  2432,  providing  that  the  state- 
ments of  consent  to  the  sale  of  liquor  shall  sboiv 
the  date  of  signing,  etc.,  is  not  complied  with 
by  an  attached  affidavit  averring^  that  all  sig- 
natures were  made  within  a  certain  period,  hut 
there  must  be  a  literal  compliance  with  the  stat- 
ute, for  tbe  date  may  be  used  for  identification, 
as  well  as  for  any  other  purpose. 

[Ed.  Not^.— For  other  cases,  see  Intoxicating 
Liquors,  Dec.  Dig.  {  66.*] 

Appeal  from  District  Court,  Lee  County; 
Henry  Bank,  Jr.,  Judge. 

An  action  to  test  the  sufficiency  of  a  state- 
ment of  general  consent  to  sell  Intoxicating 
liquors  In  certain  towns  in  Lee  county.  Up- 
on a  trial  tbe  statement  was  found  sufficient, 
and  the  plaintiff  appeals.    Reversed. 

John  P.  Hornlsh,  for  appellant  Hamilton 
&  Fralley,  for  appellees.  T.  A.  Craig,  for 
Lee  County. 

SHERWIN,  J.  On  the  13th  day  .of  No- 
vember, 1905,  the  appellees  filed  with  the 
auditor  of  Lee  county  a  statement  of  gen- 
eral consent  to  sell  intoxicating  liquors  In 
the  towns  named  therein.  On  the  same  day 
the  said  auditor  published  a  notice  of  tbe 
filing  of  said  petition,  and  that  It  would  be 
canvassed  by  the  board  of  supervisors  on  tha 
28th  of  the  same  month.  On  November  2Sth 
the  board  of  supervisors  t>egan  tbe  canvass  of 
the  petition  so  filed,  meeting  and  adjourning 
from  time  to  time,  and  on  the  9th  day  of 
December  tbe  board  passed  a  resolution  de- 
claring said  petition  sufficient  Between  the 
13tb  of  November,  the  date  of  the  filing  of 


•For  etber  cases  see  hud*  topic  and  lecUon  NUMBER  In  Dec.  &  Am.  Dlgi.  1907  to  data.  &  Reportar  ladaiM 


Digitized  by  VjOOQ  l€ 


Iowa) 


SECURITY  SAVINGS  BANK  v.  SMITH, 


825 


the  first  statement  and  the  publishing  of  no- 
tice thereof,  and  December  9th,  some  33  ad- 
ditional statements  of  petitions  were  filed 
with  the  auditor,  containing  209  additional 
names,  which  were  counted  by  the  board  of 
supervisors  as  part  of  the  original  petition 
filed  November  13th.  On  the  peUtions  filed 
on  the  13th  of  November  there  were  232 
names  not  found  on  the  poll  lists  for  1904. 
About  90  names  appearing  on  petitions  were 
not  Identical  with  the  corresponding  names 
on  the  poll  lists,  and  there  were  70  with- 
drawals of  names  from  the  petitions,  which 
withdrawals  were  considered  and  allowed  In 
the  canvass.  Sixty-five  per  cent  of  the  total 
vote  of  the  county  in  1904  is  2,337  in  round 
numbers,  and  for  the  purposes  of  this  appeal 
It  is  conceded  that  all  petitions  filed  con- 
tained an  aggregate  of  2,702  names,  or  365 
more  than  the  required  65  per  cent. 

The  main  controversy  between  the  parties 
centers  around  the  appellant's  contention 
tbat  all  names  appearing  'on  the  statements 
or  petitions  filed  after  the  13th  of  November, 
1905,  were  Improperly  considered  and  count- 
ed by  the  board  of  supervisors  and  by  the 
district  court  Code,  i  2449,  provides  for 
statements  of  general  consent  for  cities  hav- 
ing less  than  5.000  inhabitants  and  for  towns, 
and  section  2450  provides  that  only  one  state- 
ment of  general  consent  shall  In  any  event 
be  canvassed  by  the  board  of  supervisors  in 
any  one  year.  The  same  section  also  pro- 
vides that  all  statements  of  general  consent 
filed  with  the  county  auditor  as  provided  in 
the  two  preceding  sections,  shall  be  publicly 
canvassed  by  the  board  of  supervisors,  at  a 
regular  meeting,  "at  least  ten  clear  days' 
notice  of  such  Intended  canvass  having  been 
previously  published  by  the  county  auditor 
in  the  official  newspapers  of  the  county.*' 
Section  2452  says  that  "all  statements  of 
general  consent  shall  show  the  voting  pre- 
cinct of  the  signers  thereof,  and  date  of 
signing,  and. no  name  shall  be  counted  tbat 
was  not  signed  within  thirty  days  prior  to 
the  filing  of  said  statement  of  general  con- 
sent" The  statute  nowhere  provides  for 
adding  additional  names  to  statements  of 
general  consent  after  such  statements  have 
been  filed  with  the  auditor  .and  noticed  for 
bearing,  and  we  are  of  the  opinion  that 
statements  filed  subsequent  to  such  time 
should  not  be  considered.  The  filing,  notice, 
and  pablic  canvass  of  such  statements  is  for 
the  protection  of  the  public,  and  the  stat- 
nte  relating  thereto  should  be  literally  con- 
strued. If  additional  statements  oi-  petitions 
are  allowed  after  the  original  is  filed  and 
noticed  for  hearihg,  it  will  open  the  door  for 
Indefinite  filings,  and  the  original  statement 
may  be  formal  only,  while  it  was  undoubtedly 
the  intent  of  the  statute  tbat,  unless  the 
petition  on  file  at  the  time  of  the  publica- 
tion of  notice  of  Its  canvass  is  sufficient,  it 
must  fail.    To  hold  otherwise  would  be  to 


open  the  door  for  the  filing  and  canvass  of 
more  than  one  such  statement  in  a  year. 
For  if,  after  a  partial  canvass  by  the  board 
of  supervisors.  It  became  apparent  that  the 
statement  would  prove  insuflSeient  on  ac- 
count of  withdrawals,  or  for  other  reasons, 
the  petitioners  would  only  have  to  provide 
another  petition  containing  additional  names, 
and  by  so  doing  clearly  defeat  the  plain 
language  and  purpose  of  the  statute. 

The  appellees'  contention  that  additional 
petitions  should  be;  considered  under  the  rule 
as  to  withdrawals  announced  in  Green  v. 
Smith,  111  Iowa,  183,  82  N.  W.  448,  Is  not 
sound.  The  statute  itself  says  what  steps 
shall  be  taken  as  to  the  petition,  while  noth- 
ing is  therein  said  as  to  the  manner  of  with- 
drawing names  therefrom.  In  that  case  we 
considered  the  latter  question  only  and  the 
statement  in  the  opinion  that  the  board  of 
supervisors,  has  only  to  deal  with  the  state- 
ment of  consent  as  it  comes  to  it  applies 
only  to  the  matter  then  under  consideration. 
The  trial  court  allowed  the  withdrawals,  and 
did  not  err  In  so  doing.  The  statute  does 
not  prescribe  any  particular  form  therefor, 
while  it  does  require  certain  formalities  In 
the  statements  of  general  consent  The 
names  on  the  statement  of  consent  must  ap- 
pear, on  the  respective  poUbooks  of  the  last 
preceding  general  election.  Code,  §§  2448, 
2449;  Porter  v.  Butterfield,  116  Iowa,  725, 
89  N.  W.  199.  And  names  appearing  on 
the  petition  that  are  not  Identical  with  the 
corresponding  name  on  the  poll  list  cannot 
be  counted.  Wilson  v.  Bohstedt  135  Iowa, 
451,  110  N.  W.  898.  Where  the  signature  Is 
by  mark,  we  think  It  should  be  witnessed, 
and  unless  so  witnessed,  should  not  be  count- 
ed. The  statute  requires  the  statement  to 
show  the  date  of  the  signature  of  each  sign- 
er, and  we  do  not  deem  It  a  sufficient  com- 
pliance therewith  to  show,  by  the  affidavit 
attached  thereto,  that  all  signatures  were 
made  within  a  certain  period.  The  date 
may  be  used  for  identification,  as  well  as 
for  any  other  purpose,  and  it  Is  no  hardship 
to  require  a  literal  compliance  with  the  stat- 
ute. From  any  point  of  view  it  is  manifest 
that  the  statement  was  insufficient,  and 
should  have  been  so  declared. 

Reversed. 


SECURITY    SAVINGS    BANK   OP   WELI/- 
MAN   V.   SMITH   et   al. 

(Supreme  Court  of  Iowa.     Oct  21,  1909.) 

1.  Action  (|  25*)— Trial  (J  11*)— Action  on 

NoTB— Equity  Docket. 

An  action  on  a  note  by  the  payee  against 
the  maker  and  sureties  is  an  action  at  law, 
thongh  the  defense  pleaded  is  an  estoppel,  and  it 
is  proper  to  refuse  to  transfer  it  to  the  equity 
calendar. 

[E5d.  Note. — For  other  cases,  see  Action,  Dec. 
Dig.  §  25;»   Trial,  Dec.  Dig.  |  11. »] 


*For  otlMT  exes  see  sama  tople  and  section  NUMBBR  In  Dee.  A  Am.  Digs.  1907  to  date,  *  Reporter  Indexei 


Digitized  by  VjOOQ  l€ 


&S6 


122  NOBTBWESTEBN  BUPOBTEU. 


(Iowa 


2.  Appeal  ard   Erkob  (|  1002*)— Vkbdiot— 

Conclusiveness. 

A  verdict  on  conflicting  evidence  will  not 
be  disturbed  on  appeal. 

[Ed.  Note.— For  other  caaes,  see  Appeal  and 
Error,  Cent  Dig.  I  3835;    Dec.  Dig.  f  1002.*] 

8.  Banks  and  Barkinq  (|  109*)— Authobitt 

or  Cashibb. 

In  the  absence  of  special  restrictions  known 
to  the  sureties  on  a  note  payable  to  a  bank, 
the  apparent  scope  of  the  authority  of  the 
cashier  includes  an  agreement  by  him  with  the 
sureties  to  proceed  to  make  the  debt,  if  pcac- 
ticable,.  out  of  lands  owned  by  the  maker  and 
pointed'  out  to  the  cashier  by  the  sureties. 

[EM.  Note.— For  other  cases,  see  Banks  and 
Banking,  Cent.  Dig.  {  200;  Dec.  Dig.  g  109.*] 

4.  Banks  and  BARKina  d  113*)— Adthobitt 
Of  Cashikb— Estoppel. 

Where  sureties  on  a  note  payable  to  a 
bank  failed  to  proceed  against  land  owned  by 
the  maker,  relying  on  the  agreement  of  the 
cashier  to  enforce  collection  out  of  the  land, 
who  concealed  from  them  the  existence  of  un- 
secured claims  of  the  bank  against  the  maker, 
the  bank,  proceeding  against  the  land  for  the 
collection  of  the  note  and  its  other  claims, 
could  not  deny  the  power  of  the  cashier  to  make 
the  agreement,  and  the  sureties,  when  sued  on 
the  note,  could  hold  the  bank  to  the  extent  of 
the  injuries  sustained  by  their  reliance  on  the 
agreement  occasioned  by  the  fact  tliat  the  pro- 
ceeds of  the  land,  being  insufficient  to  pay  the 
note  and  the  unsecurea  claims,  were  applied  to 
the  payment  of  the  unsecured  claims. 

[Ed.  Note.— For  other  cases,  see  Banks  and 
Banking,  Cent  Dig.  i  273;    Dec.  Dig.  i  113.*] 

5.  Principal  and  SuBxrrr  (f  161*)— AomoHB 
aoainst  subbties  —  misbbpbesemtations — 
Evidence. 

In  an  action  on  a  note  by  the  payee,  a 
bank,  against  the  sureties,  evidence  Keti  not  to 
■show  that  the  sureties  were  induced  to  become 
sureties  l^  the  fraudulent  representations  of  the 
cashier  as  to  the  financial  standing  and  re- 
sponsibility of  tlie  maker. 

[Ed.  Note.— For  other  cases,  see  Principal  and 
Surety,  Cent  Dig.  |  85;   Dec  Dig.  §  161.*] 

6.  Fbaud  ((  13*) — Elements  of  Fbaud. 

A  statement  to  be  fraudulent  must  not 
only  be  false,  but  the  party  making  it  must  have 
known  that  it  was  fuse  when  he  made  it,  and 
that  he  made  it  Vith  the  design  to  influence  ac- 
tion by  another  who  relied  thereon. 

[Ed.  Note.— For  other  cases,  see  Fraud,  Cent 
Dig.  H  3-5;    Dec-  Di«-  I  13* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  3,  pp.  2943-2954;    vol.  8,  p.  7866.] 

7.  Appeal  and  Ebbob  (§  1064*)— Habmlebs 
Ebbob— Ebboneods  Irstbuctiors. 

Where,  in  an  action  on  a  note,  the  sure- 
ties alleged  that  they  were  induced  to  become 
sureties  by  the  fraudulent  representations  of  the 
payee,  and  the  evidence  showed  without  dispute 
that  the  note  was  given  for  a  present  loan  to 
the  maker,  an  instruction  that  if  the  note  was 
given  for  a  loan  at  the  time,  and  not  for  a 
renewal  of  a  prior  loan,  the  presumption  that 
there  was  no  misrepresentation  in  the  trans- 
action was  not  prejudicial  to  the  payee. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  f  4219;   Dec.  Dig.  {  1064.*] 

&  Appeal  and  Ebbob  ({  1068*)— Habuless 
Ebbob- E^boneous  Instbuotions. 

Where  only  compensatorv  damages  were 
awarded,  error  in  instructing  the  jury  that  they 
might  award  exemplary  damage  was  not  prej- 
udicial to  the  defeated  party. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error.  Cent  Dig.  I  4228 ;  Dec.  Dig.  I  10«8.*] 


Appeal  from  District  Court,  Waslilngtou 
County;  K.  B.  WlUcozen,  Judge. 
On  rehearing.    Beversed. 
For  former  opinion,  see  119  N.  W.  726. 

Action  at  law  upon  promissory  note  Judg- 
ment for  defendant,  and  plaintiff  appeals. 
An  opinion  affirming  said  judgment  was 
banded  down  by  tbis  court  on  February  17. 
1909.  On  petition  for  rehearing  it  has  been 
made  to  appear  that  certain  features  of  the 
record  were  overlooked  in  our  review  of  the 
case,  and  said  opinion  is  therefore  with- 
drawn, and  the  following  Is  substituted 
therefor. 

0.  A.  Carpenter  and  8.  W.  ft  J.  L.  Brook- 
hart,  for  appellant  Wilson  ft  Wilson  and 
Elcher  ft  Livingston,  for  appellees. 

WEAVEB,  J.  The  note  In  suit  Is  ft>r  the 
principal  sum  of  $1,000,  payable  March  1, 
1903,  and  Is  signed  by  H.  B.  Kreger,  E.  F. 
Smith,  and  A.  L.'  Palmer;  the  first  named 
being  the  principal  debtor,  and  the  last  two 
his  sureties.  Kr^er,  though  named  as  a  de- 
fendant In  the  action,  was  not  served  with 
notice,  and  has  not  appeared  thereto.  The 
sureties  make  defense  denying  liability  on 
the  note,  and  plead  matters  by  which  they 
claim  plaintiff  la  estopped  from  maintaining 
the  action.  These  grounds,  stated  as  briefly 
as  practicable,  are  as  follows:  First  that 
they  were  deceived  and  misled  Into  becoming 
sureties  for  Kreger  by  the  fraudulent  mis- 
representations of  the  bank,  acting  by  Its 
cashier.  In  representing  Kreger  to  be  solvent 
and  safe,  when  In  fact  be  was  insolvent,  and 
already  Indebted  to  the  bank  in  large  sums; 
second,  that  after  the  note  became  due,  and 
they  learned  of  Kreger's  financial  straits, 
they  Informed  the  bank  that  Kr^;er  had  ti- 
tle to  or  an  interest  In  certain  land  In  Min- 
nesota, against  which  they  would  Immediate- 
ly begin  legal  proceedings  to  protect  them- 
selves from  loss,  whereupon  the  bank  by  Its 
cashier  proposed  that  It  would  Itself  at  once 
proceed  to  enforce  the  collection  against  said 
property,  and  defendants  need  not  give  them- 
selves further  trouble  about  it,  and  defend- 
ants, not  knowing  that  the  bank  had  other 
unsecured  claims  against  Kreg»,  consented 
to  the  proposal,  and  withheld  further  effort 
on  their  part  They  further  allege  that  aald 
bank  did  Institute  an  action  In  attachment  in 
the  Minnesota  court,  but  included  therein  not 
only  the  note  now  In  suit,  but  also  all  Its 
other  claims  against  Kreger.  They  further 
allege  that,  before  the  sherltTs  sale  in  said 
proceedings,  they  learned  the  fact  as  to  the 
combination  of  all  the  bank's  claims  In  the 
one  judgment,  and  on  applying  to  plaintiff 
for  an  explanation  they  were  assured  that 
the  land  was  more  than  sufficient  to  pay  all 
the  claims,  and  defendants  would  be  fully 
protected  against  liability.  It  Is  their  con- 
tention that,  relying  on  these  several 


«Far  other  gism  m*  same  topio  and  secUos  NUMBER  In  Dee.  *  Am.  Dig*.  U07  to  data,  *  Reporter  IndnMS 


Digitized  by  VjOOQ  l€ 


Iowa) 


8ECUB1TY  SAVINOS  BANE  ▼.  SMITH. 


827 


ancee  and  repreaentatlonB,  they  did  not  take 
any  ^rther  measoreB  to  protect  themselves 
from  loss  on  acoonnt  of  said  claim,  as  they 
otherwise  might  and  would  have  done^  and 
plaintiff  is  now  estopped  to  assert  any  fur- 
ther demand  against  them  thereon.  They  al- 
so allege  that  the  lands  purchased  by  the 
plaintiff  at  the  sherUTs  sale  were  worth,  at 
a  reasonable  and  fair  valuation,  more  than 
the  entire  amount  of  plaintiff's  claim,  and 
that  the  same  has  therefore  been  fully  paid. 
While  very  many  facts  are  pleaded  and  put 
In  Issue  which  are  not  expressly  mentioned 
In  the  foregoing  recital,  we  think  all  ques- 
tions raised  on  the  appeal  are  fairly  refer- 
able to  the  controversy  as  we  have  here  out- 
lined it 

1.  On  three  different  occasions,  after  issue 
Joined  and  before  trial,  appellant  moved  to 
transfer  the  cause  to  the  equity  calendar. 
These  motions  were  each  denied,  and  error  is 
assigned  on  the  ruling.  The  point  is  not 
well  taken.  The  action  is  the  ordinary  one 
upon  a  money  demand.  The  defense,  when 
divested  of  its  Involntioos  and  repetitions, 
presents  the  issue  of  estoppel  only.  Surely  it 
requires  no  citation  or  discussion  of  the  au- 
thorities to  uphold  the  proposition  that  such 
an  issue  is  triable  at  law.  Defendants  ask 
no  subrogation  or  equitable  relief  of  any 
kind,  nor  la  idalntifl  demanding  anything 
wlilcta  a  court  of  law  cannot  grant  The  an- 
■wars  go  to  the  simple  question  whether 
plaintiff  is  entitled  to  recover  upon  the  note 
In  suit  The  motions  to  transfer  were  cor- 
rectly overruled. 

2.  The  statements,  representations,  end  ar- 
guments upon  which  the  defendants  base 
their  defense  of  estoppel  are  alleged  to  have 
been  made  by  the  plaintiff's  cashier.  These 
allegations  are  severally  denied  by  the  cash- 
ier, who  has  some  circumstantial  corrobora- 
tion of  his  theory  of  the  transaction;  but 
so  far  as  the  truth  of  this  issue  of  fact  Is 
concerned,  there  was  a  well-defined  conflict 
In  the  testimony,  and  the  verdict  of  the  Jury 
thereon  cannot  be  said  to  be  without  sufflr 
dent  support  It  is  argued,  however,  that 
whatever  may  be  the  fact  in  this  respect  the 
cashier  Is  not  shown  to  have  had  authority 
to  bind  the  bank  in  said  matters,  and  that 
the  bank  cannot  be  estopped  by  his  conduct 
Without  now  entering  into  any  discussion  of 
the  general  power  and  authority  of  a  bank 
cashier,  we  are  quite  clear  that  In  the  ab- 
s^ce  of  special  restriction  known  to  the  par- 
ty with  whom  he  deals,  the  apparent  scope 
of  such  authority  Is  broad  enough  to  Include 
the  acts  and  agreements  alleged  by  the  de- 
fendants in  this  case.  As  a  matter  of  com- 
mon knowledge  the  cashier  Is  ordinarily  the 
active  financial  manager  and  agent  of  the 
bank.  He  is  the  one  officer  who  as  a  rule  is 
always  present  during  business  hours,  exer- 
cising actual  and  Immediate  supervision  of 
its  affairs.  He  is  the  officer  with  whom  the 
customers  of  the  bank  come  most  frequent- 
ly In  contact    Among  other  things.  It  has 


been  held  that  he  may  compromise  a  debt 
due  the  bank  (T7.  S.  v.  Bank,  21  How.  858, 
16  L.  Ed.  130 ;  Toung  v.  Hudson,  90  Mo.  102, 
12  S.  W.  632;  Corser  v.  Paul,  41  N.  H.  24, 
T7  Am.  Dec.  753 ;  Stebblns  v.  Lardner,  2  S.  , 
D.  127,  48  N.  W.  847 ;  Bank  v.  Dick,  73  Ma  <> 
App.  354);  may  institute  suits  and  attach- 
ment proceedings  in  the  name  of  the  bank 
(Bank  v.  Whltmore,  40  Hun.  [N.  T.]  499); 
may  employ  an  attorney  to  bring  suit  (East- 
man V.  Bank,  1  N.  H.  23 ;  Southgate  v.  Rail- 
road Co.,  61  Mo.  89 ;  Root  v.  Oicott  42  Hun. 
(N.  T.]  536);  and  may  take  such  other  meas- 
ures as  are  reasonably  adequate  to  obtain  the 
collection  or  account  of  debts  due  the  bank 
(Brldenbecker  v.  Lowell,  32  Barb.  [N.  Y.]  9). 
It  is  not  denied  that  the  bank  held  several 
unsecured  notes  against  Kreger  in  addition  to 
the  note  in  suit  which  it  was  naturally  prop- 
erly anxious  to  collect  or  secure.  Under  such 
circumstances  It  was  also  both  natural  and 
proper  that  it  should  desire  to  reach  and  sub- 
ject Kreger's  land  to  the  payment  of  Its 
claim  as  far  as  it  might  legitimately  be  dona 
As  this  land  was  the  only  fund  or  source  in 
Bight  from  which  there  was  any  prospects  of 
making  a  collection,  it  was  obviously  to  the 
advantage  of  the  bank  to  proceed  itself  to 
sue  out  an  attachment  for  the  entire  Indebt- 
edness, rather  than  to  have  the  sureties  upon 
this  one  note  proceed  independently.  If  then, 
under  these  conditions,  upon  being  informed 
of  defendants'  Intention  to  proceed  against 
the  land,  the  cashier  said  to  defendants  that 
they  need  go  no  farther,  and  the  bank  would 
bring  the  suit  and  protect  them  against  loss, 
at  the  same  time  concealing  from  them  the 
existence  of  the  bank's  claim  over  and  above 
the  one  on  which  they  were  sureties,  leaving 
them  to  believe  that  whatever  was  derived  ' 
from  a  sale  of  said  land  would  be  first  ap- 
plied to  the  payment  of  the  debt  for  which 
they  were  liable,  we  think  that  such  repre- 
sentations and  agreements  were  within  the 
apparent  scope  of  his  authority,  and  if  de- 
fendants, relying  thereon,  refrained  from  fur- 
ther action,  and  allowed  the  bank  to  proceed 
to  exhaust  the  only  means  by  which  they 
could  have  protected  themselves,  the  bank 
will  not  be  heard  to  deny  the  power  of  the 
cashier  In  that  respect,  or  to  assert  the  right 
to  apply  the  sum  thus  realized  first  to  the 
payment  of  the  unsecured  debts  of  Kreger. 
To  do  otherwise  would  be  to  relieve  the  ap- 
pellant from  the  most  ordinary  obligations  of 
good  faith.  Owens  v.  Stapp,  32  111.  App.  653. 
The  undertaking  on  the  part  of  the  cashier 
was  not  as  counsel  argue,  an  agreement  to 
discharge  the  sureties  without  payment  of 
the  debt.  It  was  an  agreement  to  proceed 
to  make  the  debt  if  practicable,  out  of  the 
land  pointed  out  by  the  defendants,  and  if, 
by  such  agreement  defendants  were  lulled 
into  a  feeling  of  security,  and  led  to  give  over 
Into  the  hands  of  the  bank  the  instituting 
and  prosecution  of  the  action  against  Kreger, 
then  to  the  extent  of  the  injury  they  have 
sustained  by  their  reliance  upon  the  c<Hiduct 


Digitized  by  LjOOQ  IC 


828 


122  NORTHWESTERN  REPORTER. 


(loira 


and  representatloni  of  the  cashier  they  are 
entitled  to  defend  against  plaintiff's  demand 
upon  the  note.  Wolf  y.  Madden,  82  Iowa, 
114,  47  N.  W.  981;  Bank  t.  Boddlcker,  105 
Iowa,  555,  75  N.  W.  632,  45  L.  R.  A.  321, 
67  Am.  St.  Rep.  810.  There  being  eTldence 
to  support  defendants'  theory  In  this  respect, 
there  was  no  error  in  submitting  the  ques- 
tion to  the  Jury. 

3.  The  court  by  Its  charge  submitted  to 
the  Jury  the  question  whether  the  defend- 
ants Smith  and  Palmer  were  Induced  to  be- 
come sureties  upon  the  note  In  suit  by  the 
false  and  fraudulent  representations  of  plain- 
tiffs cashier  as  to  the  financial  standing  and 
responsibility  of  the  principal  maimer,  Kreger. 
A  careful  study  of  the  record  leads  us  to 
the  conclusion  that  there  is  no  evidence  found 
therein  on  which  the  Jury  could  have  proper- 
ly found  for  the  defendants  on  this  branch 
of  the  defense,  and  that  the  submission  of 
that  issue  was  prejudicial  error.  The  only 
testimony  as  to  representations  of  any  kind 
has  reference  to  conversations  had  In  a  gen- 
eral way  with  the  cashier  three  or  four  weelM 
before  the  note  was  given.  In  these  conver- 
sations Ereger'B  name  was  mentioned,  and 
the  cashier  stated  Kreger  bad  plenty  of  mon- 
ey yet,  and  had  gone  away  from  Wellman 
with  $7,000,  had  invested  It  In  land,  and  land 
bad  been  advancing  In  price,  and  he  seemed 
to  be  all  right.  At  the  time  of  this  talk 
Smith  and  Palmer  had  not  been  requested  to 
become  sureties  for  Kreger,  and  so  far  as 
appears  that  transaction  was  not  in  contem- 
plation by  either  party.  It  was  not  until 
three  or  four  weeks  later  that  Kreger  return- 
ed to  Wellman,  and  at  his  request  Smith  and 
Palmer  signed  the  note  with  him.  There  Is 
nothing  whatever  to  Justify  the  conclusion' 
that  the  cashier  was  stating  what  he  knew  to 
be  false,  or,  if  false,  that  he  made  said  state- 
ments to  mislead  defendants  into  l>ecomlng 
sureties  for  Kreger.  Moreover,  while  It  Is 
true  that  Kreger  was  then  Indebted  to  the 
bank,  there  Is  nothing  to  Indicate  that  what 
the  cashier  then  said  respecting  his  financial 
condition  was  not  made  In  entire  good  faith, 
or  that  he  did  not  then  believe  Kreger  to  be 
solvent  To  be  fraudulent  the  statement 
should  not  only  be  shown  to  be  false,  but 
that  the  cashier  knew  It  to  be  false  when 
he  made  It,  and  designed  It  to  Infiuence  ap- 
pellees to  sign  the  note,  and  that  appellees 
believed  and  relied  upon  Its  truth  In  becom- 
ing sureties  thereon.  The  record  is  barren 
of  such  showing  In  this  respect  as  would 
sustain  a  finding  of  fraud. 

4.  In  this  same  connection  plaintiff  excepts 
to  the  thirteenth  paragraph  of  the  court's 
charge,  wherein  the  Jury  were  told  that  If  the 
note  on  which  the  defendants  became  sure- 
ties was  given  for  a  loan  made  at  the  time, 
and  not  for  the  renewal  of  a  prior  loan,  tben 
the  presumption  would  be  that  there  was  no 
misrepresentation  or  fraud  In  the  transac- 
tion. Counsel's  objection  is  based  upon  the 
ground  that  it  ia  shown  without  dispute  that 


the  note  was  given  for  a  present  loan  to  Kre- 
ger, and  that  there  Is  no  claim  by  any  one 
that  it  Is  a  renewal  note.  The  criticism  ap- 
pears to  be  Just,  but  we  are  unable  to  see 
how  It  could  operate  to  the  prejudice  of  ap- 
pellant The  Jury  are  presumed  to  have 
obeyed  the  Instruction,  and,  It  being  shown 
without  dispute  that  the  note  was  given  for 
a  present  loan,  they  must  have  given  the  ap- 
pellant the  benefit  of  the  presumption. 

5.  In  beginning  this  action  the  bank  fsued 
out  an  attachment  and  caused  the  same  to  be 
served  by  levying  upon  certain  real  estate, 
and  by  garnishing  other  local  banks  as  sup- 
posed debtors  of  the  defendants  Each  of  the 
defendants  pleaded  counterclaims  for  inju- 
ries sustained  by  the  wrongful  suing  out  of 
the  writ  The  court  by  instructions  with- 
drew these  counterclaims  from  the  Jury  so 
far  as  they  related  to  alleged  injury  to  the 
business  credit  and  reputation  of  the  defend- 
ants, and  charged  that  the  actual  damages 
which  could  in  any  event  be  allowed  were 
limited  to  Interest  on  the  defendants'  funds 
tied  up  by  the  garnishment.  They  were  also 
told  that  If  they  found  the  attachment  to  be 
both  wrongful  and  malicious,  exemplary  dam- 
ages might  be  added.  On  this  branch  of  the 
case  the  Jury  returned  a  special  verdict  in 
favor  of  the  defendant  Smith  for  $70.40.  It 
is  objected  that  the  instruction  permitting 
defendants  to  recover  exemplary  damages  Is 
erroneous,  but  It  being  evident  from  the  rec- 
ord that  exemplary  damages  were  not  allow- 
ed, the  error.  If  any,  was  without  prejudice. 

6.  The  charge  of  the  court  is  further  ob- 
jected to  because  the  statement  of  the  Issues 
Is  too  prolix,  and  made  up  largely  of  a  recital 
of  the  allegations  of  the  pleadings.  It  must 
be  admitted  that  the  statement  is  very  ex- 
tended, perhaps  unnecessarily  so,  but  we 
think  it  is  not  open  to  objection  as  reversible 
error.  It  is  to  l>e  said,  also.  In  Justice  to  the 
trial  court  that  the  pleadings  are  not  only 
prolix  but  multitudinous,  containing  much 
repetition  and  argumentation  and  manifest  a 
tendency  upon  part  of  the  respective  counsel 
to  mingle  with  their  allegations  of  fact  dis- 
sertations upon  what  they  believe  to  be  the 
law  in  the  case,  thus  making  It  very  difficult 
to  reduce  the  Issues  to  a  brief  and  luminous 
statement. 

7.  Exceptions  were  preserved  to  several 
rulings  upon  the  admission  of  evidence,  but 
we  find  none  which  are  not  governed  by  fa- 
miliar rules  of  law  and  none  that  we  deem 
erroneous. 

Other  points  made  In  the  argument  are 
too  numerous  to  permit  of  their  consideration 
separately  without  prolonging  this  opinion  to 
a  tedious  length.  Those  we  have  discussed 
we  regard  as  of  leading  and  controlling  Im- 
portance, and  as  necessarily  governing  most 
of  the  exceptions  not  specifically  mentioned. 

For  the  error  mentioned  In  the  third  para- 
graph of  this  opinion,  a  new  trial  must  be 
awarded. 

Reversed. 


Digitized  by 


Google 


Iowa) 


STATE  V.  DUFF. 


STATE  T.  DUFF. 
*  (Supreme  Court  of  Iowa.     Oct  19,  1909.) 

1.  Ebcapx  (I  10*)  —  AiDise  EsoAPK  —  Evi- 
dence. 

Where,  in  a  trial  for  assisting  a  prisoner 
to  escape  from  jail,  accused  offered  evidence  that 
the  prisoner  had  said  to  a  oMtain  witness  that 
he  would  have  his  wife  bxing  him  saws,  the 
state  was  properly  permitted  to  show,  bv  the 
prisoner's  wife,  that  she  had  not  delivered  any 
saws  to  him  wliile  he  was  in  Jdil. 

[Ed.  Note.— For  other  cases,  see  Escape,  Cent. 
Dig.  §  17;    Dec.  Dig.  |  10.*) 

2.  Criuinai.   Law    (i   1144*)— Afpeai^Fbe- 

BUMPTI0N8. 

Where  no  objection  to  certain  testimony  or 
exhibits  in  a  criminal  trial  appeared  'in  the 
record,  the  court  on  appeal  would  not  consider 
an  objection  made  thereto. 

[Ed.   Note. — For  other   cases,    see    Criminal 
Law,  Cent  Dig.  |  3037;   Dec.  Dig.  i  1144.*] 

8.  CBrMiNAi.  Law  (S  507*)— Witnesses— Ac- 
complices. 

A  general  rule  for  determining  whether  a 

witness  is  an  accomplice  or  not  is  to  determine 

whether  he  could  have  been  indicted  and  ooa- 

Ticted  of  the  same  crime. 
[Ed.    Note. — For    other    cases,    see    Criminal 

Law,  Cent  Dig.  {  1082;  Dec.  Dig.  |  607.*] 

4.  KecAPE  f|  7*)— AiDiwo  Pbisokxb  to  Escape 
FKou  Jai]>-Accoupi,ices. 

A  prisoner,  aided  to  escape  from  jail  by  an 
ontaide  person,  is  not  an  accomplice  of  such  per- 
son. 

[Ed.  Note. — For  other  cases,  see  Escape,  Dea 
Dig-  i  7.*] 

5.  Cbiminal  Law  (}  1208*)— Punibhmeht- 
Legislative  Power. 

The  Legislature  may  fix  the  punishment  for 
crime,  with  the  limitation  only  that  it  be  not 
cruel  or  excessive. 

[Ed.   Note.— For   other   cases,    see    Criminal 
Law,  Cent  Dig.  f  3283;   Doc.  Dig.  S  120a*] 

6.  CRimNAL  Law  (8  1206*)- Punibhhekt— 
Indeteruinatk  Sentencx  Statutk  —  Coir- 
stitutionalitt. 

The  Indeterminate  sentence  statute  (Code 
Supp.  1907,  a  5718-al8  to  5718-a21)  violates 
no  constitutional  right  of  the  accused,  or  any 
constitutional  guaranty  of  the  state,  in  provid- 
ing that  an  accused,  convicted  of  crime,  shall 
be  sentenced  to  the  penitentiary  for  a  period 
not  exceeding  the  maximum  statutory  penalty 
for  the  crime. 

[Ed.    Note.— For   other   cases,    see    CJriminal 
Law,  Cent  Dig.  |  3275 ;   Dec.  Dig.  |  1206.*] 

7.  Pardon  (8  2*)— Punishment  — Indetermi- 
nate Sentence  Act — Constitutionalitt. 

The  fact  that  the  board  of  parol  may  lessen 
snch  term,  by  a  parol  under  the  terms  of  the 
statute,  does  not  affect  its  constitutionality. 

[Ei.  Note.— For  other  cases,  see  Pardon,  Cent 
Dig.  8  2;   Dec.  Dig.  8  2.*] 

8.  Pardon  (S  3*)  —  Punishment  —  Indeter- 
minate Sentence  Act  — Constitutionai,- 
iTir. 

Indeterminate  sentence  act  (Code  Supp. 
1907,  88  6718-al8  to  5718-a21)  empowering  the 
board  of  parol  to  establish  rules  under  which  it 
may  allow  prisoners  in  the  penitentiary  to  go 
on  parol,  etc.,  to  institute  inquiries  regarding 
any  prisoner,  or  application  for  pardon,  etc.,  to 
recommend  to  the  Governor  the  discharge  of  any 
prisoner,  and  expressly  providing  that  nothing 
in  the  act  shall  be  construed  as  impairing  the 
power  of  the  Governor,  under  the  Constitution, 


to  grant  renrievea,  itaidona,  or  commutations  of 
sentences,  does  not  confer  power  upon  the  board 
of  parol  to  reprieve  or  pardon,  and  hence  does 
not  violate  the  constitutional  provision  granting 
such  power  to  the  Governor. 

[Ed.  Note.— For  other  cases,  see  IPaidoa,  Otat 
Dig.  8  2;  Dec  Dig.  8  2.*] 

Appeal  from  District  Court,  Winneshiek 
County ;  L.  E.  Fellows,  Judge. 

The  defendant  was  convicted  of  the  crime 
of  assisting  a  prisoner  to  escape  from  the 
jail  of  the  comity,  and  appeals.     Affirmed. 

E.  R.  Acres  and  M.  3.  Carter,  for  appel- 
lant H.  W.  Byers,  Atty.  Gen.,  and  Charles 
W.  Lyon,  Asst  Atty.  Gen.,  for  the  State. 

SHERWIN,  J.  The  evidence  tended  to 
show  that  the  defendant  delivered  to  one 
Frank  H.  Curb,  who  was  lawfully  detained 
in  the  Jail  of  Winneshiek  county,  four  steel 
saws,  with  which  the  said  Curb  attempted  to 
effect  his  escape  from  eald  Jail.  The  defend- 
ant offered  evidence  to  the  effect  that  Curb 
had  said  to  a  witness  by  the  name  of  Riley 
that  he  would  have  hts  wife  bring  him  saws 
with  which  to  cut  away  the  bars  that  de- 
tained him.  In  rebuttal  the  state  was  per- 
mitted, over  the  defendant's  objection,  to 
show  by  Mrs.  Curb,  the  wife  of  Frank  H. 
Curb,  thaf  she  had  not  delivered  any  saws 
to  her  husband  while  he  was  In  Jail.  Her 
evidence  on  this  subject  was  clearly  compe- 
tent in  rebuttal  of  any  inference  which  the 
Jury  might  have  drawn  from  the  relation  ex- 
isting between  the  witness  and  Frank  H. 
Curb,  and  from  the  testimony  offered  by  the 
defendant  above  referred  to. 

John  Biaess,  who  was  deputy  sheriff  of 
the  county,  testified  as  to  a  conversation  that 
he  had  had  with  Duff,  and  In  connection 
with  his  testimony,  as  we  understand  the 
record,  a  notice  In  writing  to  the  defendant, 
stating  that  one  Kenyon  would  be  introduced 
as  a  witness  against  him,  and  relating  the 
substance  of  the  testimony  that  would  be  giv- 
en by  him,  was  offered  and  received  In  evi- 
dence. Complaint  is  made  of  this,  but  as 
no  objection  to  the  testimony  or  exhibit  ap- 
pears in  the  record.  It  requires  no  further 
consideration. 

The  court  gave  no  Instruction  on  the  sub- 
ject of  an  accomplice,  and  the  defendant 
maizes  the  claim  that  there  was  error  in  neg- 
lecting to  so  instruct;  his  position  being 
that  Curb  and  he  were  accomplices  in  assist- 
ing Curb  to  escape.  A  general  rule  for  de- 
termining wbetlier  a  witness  Is  an  accom- 
plice or  not  Is  to  determine  whether  he  could 
have  been  indicted  and  convicted  of  the  same 
crime.  It  will  be  remembered  that  Chirb  was 
the  party  In  Jail  whom  the  Indictment  charg- 
ed the  defendant  with  having  unlawfully  as- 
sisted to  escape,  and  It  Is  very  evident  to 
us  that  Curb  could  not  have  been  tried  on  a 
charge  of  having  assisted  himself  to  break 
jail.     While  it  Is  true  that  section  4898  of 


•Par  other  eases  see  same  topic  and  smUob  NUMBER  la  Dm.  *  Am.  Digs.  IW  to  flats,  *  Reporter  Iiid«ios 


Digitized  by  VjOOQ  l€ 


S30 


122  NORTHWESTERN  REPORTER. 


(Iowa 


tlie  Code  makes  It  a  crime  to  break  Jail,  and 
provides  ptmlshment  therefor,  the  crime  tor 
which  the  defendant  vraa  Indicted  and  con- 
Ticted  was  an  entirely  separate  and  distinct 
one,  defined  and  made  punishable  by  section 
4894  of  the  Code.  It  Is  undoubtedly  true 
that,  if  Curb  had  assisted  some  other  pris- 
oner confined  in  the  JaU  to  escape,  and  at 
the  same  time  himself  escaped,  he  would  foe 
an  accomplice  with  the  party  whom  he  as- 
sisted, but  it  is  the  general  rule,  we  think, 
that  where  a  prisoner  is  aided  to  escape  by 
an  outside  person,  the  prisoner  is  not  an  ac- 
complice of  the  person,  or  persons,  who  as- 
sisted him  In  making  his  escape.  Such  is  the 
holding  in  Ash  y.  State,  81  Ala.  76,  1  South. 
558,  Peeler  v.  State,  3  Tex.  App.  633,  and  the 
same  doctrine  is  announced  in  12  Cyc.  448. 
We  are  of  the  opinion,  therefore,  that  no  in- 
struction on  the  subject  of  accomplice  was 
required. 

The  trial  court  sentenced  the  defendant  to 
a  term  in  the  penitentiary  under  the  inde- 
terminate sentence  statute,  and  as  the  pun- 
ishment provided  by  law  for  the  crime  of 
which  the  defendant  was  convicted  is  not  to 
exceed  10  years  in  the  penitentiary,  that  term 
was  the  maximum  punishment  which  could 
be  infilcted.  The  defendant  saye  that  the 
statute  under  which  the  defendant  was  sen- 
tenced is  unconstitutional  and  void,  "first,  be- 
cause it  takes  away  the  power  vested  in  the 
courts,  and  vests  it  in  o£Bcer8  appointed  by 
the  Governor ;  second,  it  delegates  the  power 
of  pardon  and  commutation  of  sentence  vest- 
ed by  the  Constitution  in  the  Governor  to 
other  persons."  The  defendant  says  "that 
the  statute  under  which  the  defendant  was 
sentenced  not  only  forced  the  district  Judge 
to  pass  sentence  for  10  years,  but  forced  him 
to  hand  the  defendant  over  to  the  control  of 
three  men,  who  may  deprive  the  defendant 
of  his  liberty  and  citizenship  for  many 
years."  We  are  unable  to  see  the  force  of 
this  contention.  That  the  Legislature  has 
the  power  to  fix  the  punishment  for  crime, 
with  the  limitation  only  that  It  be  not  cruel 
or  excessive,  will  hardly  be  seriously  ques- 
tioned. And  if  the  Legislature  has  such  pow- 
er, it  may  surely  fix  a  definite  and  certain 
term  of  imprisonment  for  any  particular 
crime,  and  this  without  placing  any  discre- 
tion In  the  hands  of  the  court  whose  duty  it 
is  to  carry  out  the  legislative  mandate. 
Thus  the  Legislature  may  undoubtedly  pro- 
vide that  murder  in  the  first  degree  shall 
be  punishable  with  death,  or  with  life  im- 
prisonment, as  is  provided  by  our  own  Code, 
and  if  this  may  be  done,  it  most  necessarily 
follow  that  the  Indeterminate  sentence  stat- 
ute violates  no  constitutional  right  of  the  de- 
fendant, and  violates  no  constitutional  guar- 
anty of  the  state  in  providing  that  a  prisoner 
convicted  of  crime  shall  be  sentenced  to  the 
I>enltentiary  for  a  period  not  exceeding  the 
maximum  statutory  penalty  for  the  crime. 
In  State  v.  Perkins,  120  N.  W.  62,  we  held 
that  while  the  trial  court  has  the  power  un- 


der the  law  to  imprison  In  the  penitentiary, 
by  the  terms  of  the  Indeterminate  statute  it 
is  denied  the  power  to  fix  the  term  of  impris- 
onment, and  that  sudt  term  is  the  maxtmom 
term  provided  for  the  punishment  of  tbe 
crime.  This  holding  Is  in  accord  ■wlOk  the 
general  trend  of  authority,  and  we  liave  ik» 
disposition  to  recede  therefrom.  See  cases 
cited  in  State  t.  Perkins.  That  tliere  is  no 
uncertainty  in  the  sentence  Is  nwtnifPBt  from 
the  fact  that  It  is  for  the  maximum  tens, 
and  of  this  the  defendant  cannot  complain 
if  the  liCgislature  has  the  power  to  fix  such 
term.  .  The  fact  that  the  board  of  parol  may 
lessen -this  term  by  a  parol  under  the  terms 
of  the  statute  does  not  in  our  Judgment  af- 
fect the  constitutionality  of  the  act.  But 
even  if  it  did,  the  defendant  is  in  no  position 
to  complain,  because  any  act  of  the  board 
in  his  behalf  must  necessarily  lessen  the 
maximum  punishment  provided  by  the  stat- 
ute. If  the  Legislature  may  fix  a  definite 
punishment  for  any  crime,  it  must  logically 
follow  that  the  indeterminate  sentence  stat- 
ute no  more  deprives  the  court  of  the  power 
vested  in  It  by  the  Constitution  than  does 
any  other  statute  fixing  a  definite  punish- 
ment; for  if,  as  in  the  case  of  murder,  the 
trial  court  is  bound  by  the  statute  to  impose 
the  death  penalty  under  certain  conditions, 
it  may  Just  as  certainly  and  constitationally 
be  compelled  to  obey  the  mandate  of  (lie 
statute  in  any  other  given  case.  State  t. 
Hockett,  70  Iowa,  442,  30  N.  W.  742. 

Nor  is  there  any  merit  in  the  appellant's 
contention  that  the  statute  under  considera- 
tion delegates  the  power  to  grant  reprieves, 
commutations,  and  pardons  to  the  board  of 
parol  in  violation  of  the  Constitution  grant- 
ing such  power  to  the  Governor.  Section 
571S-al8,  Code  Supp.  1007,  provides  that  the 
board  of  parol  shall  have  power  to  establish 
mles  and  regulations  under  which  it  may 
allow  prisoners  within  the  penitentiaries, 
other  than  specific  ones,  to  go  upon  parol  out- 
side of  tike  penitentiary  buildings,  but  to  re- 
main while  on  parol  In  the  legal  custody  of 
the  wardens  of  the  i)enltentiaries,  and  under 
the  control  of  the  board  of  parol,  subject  at 
any  time  to  be  taken  back  and  confined  with- 
in the  penitentiary.  Section  6718-al9  au- 
thorizes the  board .  to  institute  inquiries  in 
regard  to  any  prisoner,  or  application  for 
pardon,  final  discharge,  or  parol,  and  section 
5718-a20  authorizes  the  board  of  parol  to 
recommend  to  the  Governor  the  discharge  of 
any  prisoner  from  further  liability  under  his 
sentence.  There  is  nothing  In  the  statute 
conferring  power  upon  the  board  of  parol  to 
reprieve,  pardon,  or  commute  the  sentence  of 
any  man  confined  in  the  penitentiary,  and  in 
addition  to  this,  section  571S-a21  of  the  Sup- 
plement expressly  provides  that  nothing  io 
the  act  "shall  be  construed  as  impairing  the 
power  of  the  Governor,  under  the  Constitu- 
tion, to  grant  a  reprieve,  pardons,  or  commu- 
tations of  sentence  in  any  case."  That  the 
parol  of  prisoners  under  the  provisions  of  tbe 


Digitized  by 


L-oogle 


Iowa) 


BLOOU  V.  SIOUX  CITY  TRACTION  CO. 


831 


Indeterminate  sentence  law  does  not  Infringe 
the  congtltntlonal  right  of  the  Governor  to 
grant  pardons,  reprieves,  eta,  Is  supported  by 
the  undoubted  weight  of  authority.  See 
State  T.  Peters,  43  Ohio  St  629,  4  N.  E.  81 ; 
MUler  T.  State,  149  Ind.  608,  49  N.  E.  894,  40 
Ij.  R.  A.  109;  People  v.  Warden,  89  Misc. 
Rep.  113,  78  N.  Y.  Supp.  907 ;  People  v.  Mad- 
den, 120  App.  Dlv.  338,  105  N.  Y.  Supp.  654 ; 
People  T.  Mallary,  196  111.  682,  63  N.  B.  608, 
88  Am.  St  Rep.  212;  Murphy  v.  Common- 
wealth, 172  Mass.  264,  52  N.  E.  606,  43  L.  R. 
A.  164,  70  Am.  St  Rep.  266. 

We  find  no  error  In  the  record,  and  the 
Judgment  is  therefore  affirmed. 

Affirmed. 


BLOOM  V.  SIOUX  CITY  TRACTION  CO. 
(Supreme  Court  of  Iowa.     Oct  22,  1909.) 

1.  Appeal   and    E^bbob   (J    413*)  —  Nones — 
Sebvice. 

Under  the  statute,  notice  of  appeal  must  be 
served  on  the  deik  before  the  appeal  is  per- 
fected. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  H  2186-2139;  Dec.  Dig;  §  413.*] 

2.  Appeal  ahd  Ebbob  ({  417*)— Nonos— Sur- 

FICrBNCT. 

Where  the  notice  of  appeal  served  on  the 
clerk  is  suflScient  in   form  as  against  all   the 
parties  to  the  action.  It  is  sufficient  though  it 
IS  not  addressed  to  the  clerk. 
[E^  Note.— For  other  esses,  see  Appeal  and 


Appea 
.  |41 


Error,  Cent  Dig.  |  2140;  Dec.  Dig.  1  417.*] 

8.  Appbal  akd  Ebbob  (i  8R4*)  —  Questions 
Reviewablb— Reasons  fob  decision. 
Where  the  trial  court  directed  a  verdict  for 
defendant  without  indicating  the  ground  of  the 
ruling,  plaintiff's  whole  case  was  before  the  Su- 
preme Court  on  appeal. 

[Ed.  Note.— For  other  eases,  see  Appeal  and 
Error,.  Cent  Dig.  |  8427;   Dec.  Dig.  |  864.*] 

4.  Cabbiebs   a  339*)— iNjxniiES  to  Pabseh- 
OKBS— Contbibutokt  Neolioenoe. 

A  passenger  on  a  street  car,  which  entered 
a  switch  to  wait  for  the  passing  on  the  main 
track  of  a  car  running  in  the  opposite  direction, 
alighted  therefrom  intending  to  imss  around 
the  rear  of  the  car  and  walk  across  the  main 
tiadu  The  street  was  not  paved,  and  she  stum- 
bled and  fell  headlong  across  the  space  between 
the  two  tracks,  and  at  almost  the  same  instant 
the  car  on  the  main  track  passed,  and  its  fen- 
der struck  her.  It  did  not  appear  that  her 
stumbling  resulted  from  any  negligence  on  her 
part  Held,  that  the  accident  was  not  caused 
by  her  contnbutory  negligence. 

[Ed.    Note.— For   other   cases,    see   Carriers, 
Cent  Dig.  I  1353 ;   Dea  Dig.  |  339.*] 

6.  Oabbiebb  (I  303*)— Cabriebs  of  Passen- 
OEBB— Cabe  KEgtriBED— Passing  of  Cabs. 
A  carrier  owes  a  very  high  degree  of  care 
to  protect  its  passengers  who  alight-  from  one 
car  against  the  danger  of  collision  from  a  mov- 
ing car  on  another  track,  and  it  must  take  note 
of  the  nsnal  dangers  surrounding  such  a  situa- 
tion, and  most  conduct  its  moving  cars  past 
standing  cars  with  dne  regard  to  snch  danger, 
but  it  is  not  an  insurer,  and  is  liable  only  for 
a  breach  of  duty. 

[Ed.    Note.— For   other   cases,    see    Carriers, 
Cent  Dig.  (  1237;  Dec.  Dig.  i  303.*] 


6.  Cabbiebs   (|  303*>— Injubieb  to   Passen- 
oebs—Neolioencs— Passing  of  Cabs. 

A  passenger  on  a  street  car,  which  entered 
a  switch  to  wait  for  the  passing  on  the  main 
track  of  a  car  running  in  the  opposite  direction, 
alighted  therefrom  intending  to  pass  around  the 
rear  of  the  car  and  walk  across  the  main  track. 
The  street  was  not  paved,  and  she  stumbled  and 
fell  across  the  space  between  the  tracks  at  al- 
most the  instant  the  car  on  the  main  track 
passed,  and  its  fender  struck  her.  The  evidence 
showed  that  the  car  on  the  main  track  was  slow- 
ed down  at  the  lower  end  of  the  switch,  and 
again  as  it  approached  the  standing  car.  Held, 
not  to  show  negligence  of  the  carrier. 

[£2d.  Note.— For  other  cases,  see  Carriers, 
Cent.  Dig.  S  123" ;    Dec.  Dig.  {  303.*] 

7.  Cabbiebs   (i  305*)— Injubies  to  Pabskn- 
OEBS— Pboximate  Cadse. 

A  passenger  on  a  street  car,  which  entered 
a  switch  to  wait  for  the  passing  on  the  main 
track  of  a  car  running  in  the  opposite  direction, 
alighted  therefrom  intending  to  pass  around  the 
rear  of  the  car  and  across  the  main  track.  She 
stumbled  and  fell  headlong  across  the  stiace 
between  the  tracks,  and  the  car  on  the  main 
track  struck  her.  The  passenger's  head  struck 
the  ground  either  at  the  same  time  the  fender 
of  the  car  passed  the  point  or  the  time  between 
her  falling  and  the  passing  of  the  car  was  so 
short  that  it  could  not  be  determined.  Held, 
that  the  proximate  cause  of  the  injury  was  the 
stumbling  of  the  passenger,  and  not  the  excess- 
ive speea  of  the  car,  precluding  a  recovery. 

[Ed.  Note. — For  other  cases,  see  Carriers, 
Cent  Dig.  I  1245;    Dec.  Dig.  {  305.*] 

Appeal  from  District  Court  Woodbury 
County;   J.  F.  Oliver,  Judge. 

This  is  an  action  for  personal  injuries.  At 
the  close  of  plalnturs  evidence  the  court  di- 
rected a  verdict  for  the  defendant  Plaintiff 
appeals.    Affirmed. 

A.  Van  Wagenen,  for  appellant  J.  Ij.  Ken- 
nedy, for  appellee. 

EVANS,  C.  J.  1.  The  defendant  has  filed  a 
motion  to  dismiss  the  appeal  for  want  of 
Jurisdiction,  and  the  motion  has  been  sub- 
mitted with  the  case.  The  ground  of  the 
motion  is  that  the  notice  of  appeal  which 
was  served  upon  the  clerk  of  the  district 
court  was  not  addressed  to  such  person  or 
officer.  A  notice  in  proper  form  was  ad- 
dressed to  and  served  upon  the  defendant 
This  notice  was  presented  to  the  clerk,  and 
he  entered  thereon  his  acceptance  of  service 
in  due  form ;  his  official  capacity  being  made 
to  appear  In  such  acceptance.  It  is  urged 
that  because  the  notice  was  not  addressed 
to  him,  the  service  thereof  upon  him  cannot 
avail  the  appellant  That  notice  of  appeal 
must  be  served  upon  the  clerk  before  the 
appeal  can  be  deemed  perfected  is  settled  by 
our  statute  and  by  prevlotu  decisions  of  this 
court  CuUison  t.  Llnday,  108  Iowa,  124,  78 
N.  W.  847,  and  cases  therein  cited.  It  has 
also  been  held  that  a  proper  notice  of  appeal 
should  be  addressed  to  the  opposite  party 
upon  whom  it  is  to  be  served.  In  re  Ander- 
son, 125  Iowa,  670,  101  N.  W.  510.  The  ques- 
tion which  confronts  us  now  is  whether  this 
latter  rule  should  be  so  applied  as  to  require 


•For  othsr  eases  sm  wuss  topic  and  lacUon  NUUBBR  in  Dee.  *  Am.  Digs.  1907  to  date,  *  Reportw  Indezes 


Digitized  by  VjOOQ  l€ 


832 


122  KOBTHWESTERN  REPORTER. 


Clowa 


a  notice  of  appeal  to  be  addressed  to  the 
clerk  as  well  as  to  the  opposite  party.  We 
are  of  the  opinion  that  it  would  be  unduly 
technical  to  so  hold.  There  are  substantial 
reasons  for  the  rule  as  announced  in  the 
Anderson  Case,  and  as  applied  to  adverse 
parties.  But  the  clerk  is  not  a  party  to 
the  case.  He  has  no  Interest  to  be  protected 
or  Imperiled.  We  think,  therefore,  that  If  a 
notice  of  appeal  is  served  upon  the  clerk 
which  is  sufficient  in  form  as  against  all 
parties  to  the  action,  it  sufficiently  answers 
the  requirements  of  the  statute.  In  such 
form  the  notice  conveys  to  the  clerk  all  the 
information  contemplated  by  the  statute. 
The  statute  does  not  In  express  terms  re- 
quire that  the  notice  be  addressed  to  him, 
and  we  see  no  good  reason  for  placing  such 
a  construction  upon  It  We  hold,  therefore, 
that  the  notice  In  this  case  was  sufficient 
To  this  same  efFect  see  Baberlck  r.  Magner, 
9  Minn.  232  (Gil.  217). 

2.  On  April  1,  1908,  the  defendant  was  en- 
gaged in  operating  a  street  car  line  between 
Sioux  City  and  Morning  Side,  a  suburb  of 
Sioux  City  lying  to  the  southward.  At  the 
place  of  accident  the  line  of  railway  extend- 
ed toward  Morning  Side  a  little  eastward  of 
a  southerly  direction,  and  toward  Sioux 
City  a  little  westward  of  a  northerly  di- 
rection.- Between  11 :30  and  noon  the  plain- 
tiff was  an  outgoing  passenger  to  her  home 
at  or  near  Morning  Side.  Her  point  of  des- 
tination on  the  car  was  the  intersection  of 
Davis  street  Extending  north  from  Davis 
street  nearly  to  Peters  street,  a  distance 
of  nearly  300  feet  was  a  switch.  This  switch 
was  on  the  west  side  of  the  main  line.  The 
north-bound  cars  had  the  right  of  way  over 
the  main  line,  and  the  south-bound  cars 
were  required  to  take  the  switch  for  the 
purpose  of  passing.  On  the  morning  in  ques- 
tion the  south-bound  car  upon  which  the 
plaintiff  was  riding  entered  the  switch  and 
stopped  midway  on  the  block  between  Davis 
and  Peters  streets.  In  order  to  wait  for  the 
passing  of  the  north-bound  car  on  the.  main 
track.  After  such  passing  its  course  would 
be  to  back  up  to  the  main  line,  and  pursue 
Its  course  thereon.  WhUe  the  car  was  wait- 
ing on  the  switch,  however,  the  plaintiff 
alighted  therefrom,  Intending  to  pass  around 
the  rear  of  the  car  and  walk  east  across 
the  main  track  in  the  direction  of  her  home. 
The  street  was  not  paved  at  this  point,  nor' 
were  there  any  walks  or  crossings  of  any 
kind.  The  plaintiff  alighted  on  the  west 
side  of  the  car,  and  walked  north  from  C  to 
15  feet  to  the  rear  of  the  car,  and  then  turn- 
ed east  While  she  was  on  or  at  the  east 
rail  of  the  switch,  she  stumbled  in  some 
manner,  and  fell  headlong  across  the  6  feet 
of  intervening  space  between  the  tracks.  At 
almost  the  same  instant  the  north-bound 
car  passed  the  point  at  which  she  had  fallen, 
and  its  fender,  which  protruded  about  2 
feet  from  the  side  of  the  rail,  struck  the 


plaintUTs  head,  and  changed  her  position  so 
that  she  lay  parallel  with  the  track.  The 
ground  of  negligence  charged  Is  that  the 
north-bound  car  was  being  operated  at  an  un- 
due rate  of  speed,  considering  the  circom- 
stances  that  it  was  passing  a  standing  car. 
The  trial  court  sustained  a  motion  to  direct 
the  verdict  for  the  defendant  without  indi- 
cating the  ground  of  the  ruling.  Plaintiff's 
whole  case  is  therefore  before  us.  She  was 
severely  injured,  and  we  have  read  the  evi- 
dence offered  in  her  behalf  with  much  care. 
The  questions  presented  to  us  by  the  argo- 
meuts  of  counsel  are:  (1)  Was  she  herself 
guilty  of  negligence  contributing  to  her  own 
injury ;  (2)  was  the  defendant  guilty  of  neg- 
ligence as  charged ;  (3)  was  such  negligence^ 
if  any,  the  proximate  cause  of  plaintiff's  in- 
jury. 

Plaintiff's  own  testimony  as  to  the  circum- 
stances at  the  instant  of  the  accident  are 
necessarily  circumscribed  because  of  her  un- 
consciousness resulting  from  the  accident 
Two  eyewitnesses,  however,  testified  in  her 
behalf.  Plaintiff  herself  testified  that  she 
knew  that  the  north-bound  car  was  due  on 
the  main  track,  and  that  she  was  on  the 
lookout  for  It.  She  also  testified  to  having 
a  faint  recollection  of  seeing  it  She  walked 
to  a  position  from  6  to  15  feet  in  the  rear  of 
her  own  car  before  turning  east  across  the 
main  track,  for  the  purpose  of  avoiding  th^ 
danger  from  the  north-bound  car.  Although 
the  wind  blew  a  gale  from  the  northwest, 
the  day  was  clear.  When  the  plaintiff  alight- 
ed from  her  car  on  the  west  side  thereof, 
her  view  of  the  main  line  was  necessarily 
obstructed  by  such  car,  and  by  a  "dead  car" 
in  front  of  it  But  when  she  took  a  position 
from  6  to  16  feet  in  the  rear  of  such  car, 
the  cars  upon  the  switch  would  cease  to 
obstruct  her  view  as  she  moved  in  the  di- 
rection of  the  main  track.  If  she  had  volun- 
tarily walked  across  the  Intervening  space 
between  the  two  tracks,  she  could  not  have 
failed  to  see  the  oncoming  car,  and  could 
not  have  stepped  In  front  of  it  under  such 
circumstances  without  being  guilty  of  con- 
tributory negligence.  But  she  had  only  reach- 
ed the  west  edge  of  the  intervening  space 
when  she  stumbled  and  fell  headlong.  Un- 
der this  record  she  is  not  chargeable  with 
negligence  for  the  stumbling,  nor  for  the 
dangerous  position  into  which  she  thereby 
fell.  The  most  that  can  be  said  at  this  point 
is  that,  if  she  was  intending  to  cross  the 
main  track  regardless  of  the  north-bound 
car,  she  was  intending  to  do  a  negligent 
thing.  But  such  intention  was  Interrupted 
before  she  came  into  the  zone  of  danger.  It 
does  not  appear  that  her  stumbling  resulted 
from  any  negligence  on  her  part.  It  la  not, 
therefore,  a  case  of  contributory  negligence 
in  the  legal  sense. 

Turning  now  to  a  consideration  of  defend- 
ant's alleged  negligence,  we  find  no  testimony 
stating  the  rate  of  speed  at  which  the  car 


Digitized  by  LjOOQIC 


low^ 


LEADER  ▼.  FARMERS'  LOAN  &  TRUST  00. 


833 


was  iDOTing.  Counsel  argues  that  the  Infer- 
ence could  fairly  be  drawn  by  the  Jury  from 
all  drcumstances  that  the  speed  was  negli- 
gent We  see  nothing  In  the  evidence  from 
which  such  Inference  could  be  drawn.  The 
evidence  of  plaintiff's  witnesses  shows  that 
the  moving  car  was  "slowed  down"  at  the 
lower  end  of  the  switch,  and  again  as  It  ap- 
proached the  standing  car.  Apart  from  the 
mere  fact  that  the  accident  liappened,  we 
see  nothing  in  the  evidence  to  indicate  a 
want  of  care  on  the  part  of  the  defendant. 
True  It  Is  that  the  railway  company  owes  a 
very  high  degree  of  care  to  protect  its  pas- 
sengers who  alight  from  one  car  against  the 
danger  of  collision  from  a  moving  car  upon 
another  track.  It  should  take  note  of  the 
usual  dangers  surrounding  such  a  situation, 
and  it  should  conduct  its  moving  cars  past 
standing  cars  with  due  regard  to  such  dan- 
ger. But  It  is  not  an  insurer  even  at  this 
point.  It  can  be  held  liable  only  for  a 
breach  of  duty  In  some  respect.  The  evi- 
dence In  this  case  falls  short  of  sustaining 
the  charge  of  negligence  made  in  the  plead- 
ings. 

We  are  constrained  to  hold  also  that,  even 
if  the  north-bound  car  were  moving  at  an 
undue  rate  of  speed,  such  negligence  was  not 
the  proximate  cause  of  the  injury.  One  of 
plaintiff's  witnesses  testified  that  the  plain- 
tiff's head  struck  the  ground  or  rail  at  the 
west  side  of  the  main  track,  "at  the  same 
time"  that  the  fender  of  the  car  passed  the 
Slime  Doint  The  other  witness  made  the 
difference  of  time  "a  second  or  so.  It  was 
so  quick  I  could  not  determine  the  time." 
We  think  that  It  must  be  said  under  these 
circumstances  that  the  stumbling  of  the 
plaintiff  at  the  time  and  place  was  the  prox- 
imate cause  of  the  injury.  As  l>earing  some- 
what on  the  .question,  see  Andrews  v.  Rail- 
way Co.,  128  Iowa.  162, 105  N.  W.  404;  Win- 
cbel)  ▼.  Street  Railway  Co.,  86  Minn.  446, 
90  N    W.  1050. 

It  is  therefore  ordered  that  the  Judgment 
below  be  affirmed. 


LEADER  V.  FARMERS'  LOAN  & 
TRUST  CO. 

(Supreme  Court  of  Iowa.    Oct  20,  1909.) 

1.  ATTAcnifENT  ({  380*)— Wbonoful  Attach- 
ment—Evidence— INSTBUCTIONS. 

Where,  in  an  action  for  wrongful  attach- 
ment of  horses  and  agricultural  implements 
claimed  by  plaintiff  under  a  sale  from  defend- 
ant's debtor  prior  to  the  levy,  the  evidence  show- 
ed that  plaintiff  had  contracted  for  the  farm  of 
a  third  person,  and  had  bought  from  the  debt- 
or his  interest  in  the  crops  thereon,  and  the  hors- 
es and  implements  of  the  debtor,  and  thereafter 
plaintiff,  by  bis  employ^,  used  the  horses  and 
implements  in  caring  for  the  crops,  and  that 
after  the  sale,  and  prior  to  the  levy,  the  debtor 
bad  gone  to  a  sister  state,  an  instruction  that, 
to  retain  possession  after  a  snle  so  as  to  make 
the  property  subject  to  the  debts  of  the  seller, 


the  possession  must  be  actual  and  of  the  char- 
acter and  kind  before  the  sale  was  not  errone- 
ous as  leading  the  jury  to  find  that  the  debtor 
was  not  in  the  possession  of  the  property  at  the 
time  of  the  levy  simply  because  he  had  gone  to 
a  sister  state. 

[Ed.  Note.— For  other  cases,  see  Attachment, 
Cent  Dig.  {  13T3;   Dec.  Dig.  f  380.*] 

2.  Attachment  (|  374*)— Wbonqfui,  Attach- 
ment—Evidence— Admissibility. 

Wber«,  in  an  action  for  wrongful  attach- 
ment of  horses  and  agricultural  implements 
claimed  by  plaintiff  under  a  sale  from  defend- 
ant's debtor  prior  to  the  levy,  there  was  evidence 
that  plaintiff  had  contracted  for  the  farm  of  a 
third  person,  and  had  bought  the  debtor's  crops 
thereon,  and  his  horses  and  implements  used  on 
the  farm,  there  was  no  error  io  overruling  an 
objection  to  a  question  asked  plaintiff  as  to  when 
he  took  possession  of  the  farm,  answered  by  de- 
tailing the  facts  showing  his  taking  of  posses- 
sion by  putting  his  employ^  in  charge  of  the 
crops,  with  the  use  of  the  horses  and  implements. 
[Ed.  Note. — For  other  cases,  see  Attachment, 
Cent  Dig.  {{  1369,  1370;   Dec,  Dig.  I  374,*] 

8.  Attachment  (J  374*)- Wbongsxtl  Attach- 
ment—Evidencb-Admissibilitt. 

The  exclusion  of  evidence  that  the  third  per- 
son had  obtained  a  decree  canceling  plaintiff's 
title  to  the  btrm  was  proper,  for  plaintiff's  pos- 
session of  the  horses  and  implements  did  not  de- 
pend on  his  title  to  the  farm. 

[Ed.  Note,— For  other  cases,  see  Attachment, 
Cent  Dig.  }§  1309,  1370 ;   Dec.  Dig.  S  374.*] 

4.  Fbaddulent  Conveyances  (S  147*)  — Re- 
tention OF  Possession  —  Sufficiency  of 
Delivebt. 

The  validity  of  a  sale  under  Code  1897,  { 
2006,  providing  that  no  sale  of  personalty,  where 
the  seller  retains  actual  possession,  is  .valid  as 
against  creditors,  etc,  depends  on  whether  the 
seller  retained  possession;  and,  where  it  appear- 
ed that  the  seller  of  horses  kept  in  a  pasture  on 
a  farm  had  no  control  of  the  pasture  after  the 
sale,  nor  exercised  any  apparent  control  over  the 
horses,  the  seller  did  not  retain  possession. 

[Ed.  Note.— For  other  cases,  see  Fraudulent 
Conveyances,  Cent  Dig.  i  457;  Dec.  Dig.  t 
147.*] 

Appeal  from  District  Court,  Woodbury 
County;   F.  R.  Gaynor,  Judge. 

Action  to  recover  damages  for  the  wrong- 
ful attachment  of  plaintiff's  property,  in  an 
action  Instituted  by  this  defendant  against 
William  and  Charles  Sapp,  from  whom  plain- 
tiff claims  to  have  acquired  title  to  the  prop- 
erty prior  to  the  levy  of  the  attachment. 
There  was  a  verdict  for  the  plaintiff,  and 
from  the  Judgment  thereon  defendant  ap- 
peals.   Affirmed. 

J.  A.  Prichard  and  E.  P.  Farr,  for  appel- 
lant Shull,  Famsworth  &  Sammis,  for  ap- 
pellee. 

McCLAIN,  J.  There  was  evidence  tend- 
ing to  show  that  in  the  latter  part  of  May, 
1907,  the  plaintiff,  who  resided  in  Nebraska, 
entered  Into  an  arrangement  with  Joseph 
Ross  and  his  wife,  Retta  Ross,  who  resided 
on  a  farm  near  Castana,  in  Monona  county 
of  this  state,  for  the  acquisition  by  exchange 
of  the  farm  on  which  the  Rosses  resided,  the 
title  to  which  was  in  Mrs.  Ross,  and  which 
was  known  as  the  "Ross  farm,"  and  that  at 


•For  other  cues  see  same  topio  and  section  NUMBER  In  Dee.  4  Am.  Digs.  U07  to  data,  A  Reporter  Indexes 
122  N.W.— .53 


Digitized  by  VjOOQ  l€ 


834 


122  NORTHWESTERN  REPORTER. 


(lowc 


this  time  plaintiff  pnrctaased  from  William 
Sapp,  a  BOD  ot  Mrs.  Ross  by  a  former  mar- 
riage, wbo  -with  bis  wife  resided  wltb  tbe 
Rosses  on  tbe  farm,  an  interest  In  tbe  crops 
tben  growing  on  said  farm.  About  June  19tb 
foUowlDg  some  arrangement  was  made  l>e- 
tween  plaintiff  and  tbe  Rosses  for  tbe  ex- 
change of  deeds.  Plaintiff  claims  tbat  at 
tbis  time  be  also  purchased  certain  borses 
and  agricultural  Implements  kept  on  tbe 
farm  and  belonging  to  William  Sapp.  He 
further  claims  tbat  almut  July  '1st  William 
Sapp  came  to  Nebraslca,  and  tbat  on  or  about 
July  20th  be  made  a  further  purchase  from 
said  Sapp  of  certain  horses  and  harness, 
which  were  also  then  on  the  Ross  farm.  On 
tbe  SOth  of  the  same  month  the  sheriff  of 
Monona  county  seized  tbe  agricultural  ma- 
chinery, horses,  and  harness  on  tbe  Ross 
farm  which  plaintiff  claims  to  have  pur- 
chased from  William  Sapp,  levying  an  at- 
tachment thereon  as  tbe  property  of  said 
William  Sapp  in  a  suit  instituted  by  tbe  de- 
fendant in  this  case  against  William  Sapp 
and  Charles  Sapp,  and  tbe  present  action  is 
to  recover  damages  for  tbis  levy,  wblcb  is  al- 
leged to  have  been  wrongful. 

Tbe  question  Is  whether  there  had  been 
rach  change  of  possession  of  the  property 
levied  upon  between  the  time  of  the  alleged 
sale  thereof  by  William  Sapp  to  plaintiff  and 
tbe  time  of  tbe  levy  tbat  the  vendor  no  long- 
er retained  actual  possession  thereof,  so 
tbat,  under  the  provisions  of  Code,  {  2806, 
a  recorded  instrument  of  sale  was  not  nec- 
essary to  defeat  tbe  subsequent  levy  upon  the 
property  as  belonging  to  the  vendor.  As 
bearing  upon  this  question  of  fact  there  was 
evidence  tending  to  show  that  plaintiff, 
through  bis  employes,  cultivated  and  cared 
for  the  crops  on  the  Ross  farm,  using  for 
tbat  purpose  the  agricultural  implements 
and  some  of  tbe  horses  purchased  from  Wil- 
liam Sapp,  and  tbat  William  Sapp  himself 
was  not  on  the  farm,  and  had  no  connection 
wltb  tbe  management  of  it  after  tbe  5th  of 
July,  although  bis  wife  continued  to  reside 
with  the  Rosses  on  tbe  farm  until  after  tbe 
levy  was  made.  With  reference  to  this 
statement  of  facts  appellant  complains  of 
an  instruction  in  which  the  Jury  was  told: 
"When  you  come  to  determine  whether  or 
not  the  Sapps  retained  actual  possession  of 
this  property  after  the  sale  to  plaintiff.  If 
any  such  sale  you  find  there  was,  you  are 
Instructed  that  to  retain  actual  possession 
of  property  after  a  sale  so  as  to  make  the 
property  subject  to  the  debts  of  tbe  seller, 
the  possession  must  be  actual,  of  the  same 
character  and  kind  of  possession  as  had  be- 
fore the  sale."  The  argument  Is  tbat,  as 
it  was  conceded  William  Sapp  had  person- 
ally gone  to  Nebraska,  the  Jury  might  have 
found  tbat  he  was  not  in  possession  of  the 
property  at  the  time  of  the  levy  by  the 
same  character  and  kind  of  possession  as  be 
had  before  tbe  sale,  although  as  a  matter 
of  fact  there  had  been  no  actual  change  of 


possession  from  bim  to  plaintiff.  But  we 
think  tbe  instruction  was  pertinent  to  tbe 
evidence.  If,  as  appears,  Sapp  bad  prior 
to  the  sale  of  the  machinery  and  horses  to 
plaintiff  been  using  them  on  the  farm  for  the 
cultivation  of  crops,  and  after  such  sale 
ceased  to  use  them  in  tbat  manner  and  for 
that  purpose,  and  tbey  were  tben  used  by 
the  employes  of  plaintiff  cultivating  and 
caring  for  the  crops  wblcb  plaintiff  had  pur- 
chased from  Sapp,  the  possession  of  Sapp 
did  not  continue  to  be  of  tbe  same  character 
and  kind  as  tbat  which  be  bad  before  bad, 
although  there  was  no  actual  change  in  tbe 
place  where  the  machinery  and  borses  were 
being  kept  In  other  words,  the  relation  of 
Sapp  to  the  property  may  have  been  so 
changed  by  bis  sale  of  tbe  crops,  and  by  fur- 
ther absenting  himself  from  tbe  farm,  and 
any  control  over  tbe  crops  or  machinery  and 
horses,  tbat  be  could  be  found  not  to  have 
retained  possession  of  the  machinery  and 
horses.  Tbe  instruction  properly  called  the 
attention  of  the  Jury  to  this  matter,  and  we 
think  was  not  erroneous  or  misleading. 
There  was  no  further  instruction  asked  on 
the  subject  by  defendant,  and  of  the  in- 
struction as  given  we  think  defendant  has 
no  ground  of  complaint  Plaintiff  may  have 
been  in  the  possession  of  tbe  property 
through  his  employes,  although  not  person- 
ally on  tbe  Ross  farm,  and  Sapp  may  have 
lost  bis  possession  by  reason  of  tbe  change 
in  tbe  control  and  use  of  tbe  property.  Tbis 
was  the  question  left  to  tbe  Jury  for  deci- 
sion, and  we  think  there  was  no  error  in 
tbe  method  in  wblcb  tbe  question  was  sali- 
mitted  to  tbe  Jury  for  their  determination. 

Error  is  also  alleged  in  the  refusal  of  the 
court  to  sustain  defendant's  objection  to  a 
question  asked  of  plaintiff  as  a  witness  as 
to  when  he  took  possession  of  the  farm; 
but,  as  tbe  answer  specified  tbe  facts  de- 
tailed by  plaintiff  as  showing  bis  taking  of 
possession  by  putting  bis  employ^  in  charge 
of  tbe  crops  with  the  use  of  the  machinery 
and  borses,  we  think  no  possible  prejudice 
could  have  resulted  to  the  defendant  from 
the  ruling.  It  is  also  contended  that  the 
court  erred  In  rejecting  evidence  offered  for 
defendant  to  show  tbat  Mrs.  Ross,-  in  July, 
1907,  instituted  an  action  against  this  plain- 
tiff to  rescind  tbe  alleged  contract  for  sale 
of  the  farm,  in  which  a  decree  was  enter- 
ed defeating  plaintiflTs  alleged  title.  But 
as  this  action  did  not  relate  to  tbe  sale  of 
the  crops  from  Sapp  to  plaintiff,  and  had 
no  bearing  upon  tbe  fact  of  plaintilTs  pos- 
session, we  think  the  ruling  was  correct 
PlalntUTs  possession  of  the  property  claim- 
ed by  him  did  not  depend  in  any  way  upon 
his  title  to  the  Ross  farm,  but  was  predi- 
cated solely  upon  bis  purchase  of  the  crops 
from  Sapp,  and  bis  use  of  the  machinery 
and  horses,  through  his  employfe,  in  culti- 
vating and  caring  for  said  crops. 

Something  is  said  in  argument  with  refers 
ence  to  the  possession  of  tbe  horaea  par- 


Digitized  by  VjOOQ  l€ 


Iowa) 


CXX)K  V.  WHITING. 


835 


chased  by  plaintiff  from  Sapp  on  July  20th 
In  Nebraska;  the  claim  being  that  these 
anlma]8  remained  In  the  pasture  on  the  Ross 
farm,  and  that  plaintiff  exercised  no  con- 
trol -whatever  with  reference  to  them  until 
after  they  were  Included  In  defendant's  levy. 
But  under  the  statute  the  question  is  wheth- 
er Sapp,  the  vendor,  retained  possession,  and 
as  to  that  there  Is  no  evidence  whatever.  It 
does  not  appear  that  be  had  control  of  the 
pasture  In  which  the  animals  were  kept,  nor 
exercised  any  apparent  power  of  control  or 
disposal  as  to  the  animals. 

Finding  no  error  in  the  record,  the  judg- 
ment is  affirmed. 


COOK  V.  WHITINO. 
(Supreme  Court  of  Iowa.    Oct.  22,  1900.) 

1.  Appeal  and  Ebbob  ($  1042*)  —  Habmxxss 
Ebbob— Ebroneous  IluuNos  ON  Motion  to 
Stbikb  Pleadings. 

As  in  an  action  by  a  broker  for  commis- 
sions for  procuring  a  purchaser  of  real  estate, 
it  is  competent  to  prove  that  the  gale  was  made 
through  another  broker,  the  error  in  reusing  to 
strike  out  the  allegation  of  the  answer  that  the 
land  was  sold  through  another  broker,  to  whom 
commission  was  paid,  on  the  ground  that  the 
matter  was  In  the  nature  of  evidence,  was  not 
prejudicial  to  the  broker. 

TEd.  Kote. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  §{  4112,  4113;  Dec.  Dig.  { 
1042.*] 

2.  Bbokebs  (g  S2*)— Actions  fob  Oouhissiors 
— Evidence — Admissibility. 

In  an  action  by  a  broker  for  commissions 
nnder  a  petition  alleging  the  procurance  of  a 
purchaser  of  real  estate,  it  is  competent  to  prove 
that  the  sale  was  made  through  another  broker, 
and  not  through  the  efforts  of  plaintiff. 

[Ed.  Note. — For  other  eases,  see  Brokers,  Cent. 
Dig.  J  103;   Dec.  Dig.  S  82.*] 

3.  Appeal  and  Ebbob  (8  1001*)  —  Vebdict — 

CoNCLnSIVEKESS. 

A  verdict  supported  by  substantial  evidence 
will  not  be  disturbed  on  appeal. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  S  3928;   Dec.  Dig.  §  1001.»] 

4.  Bbokebs  ({  46*)  —  Covmibsionb  —  When 
Eabned. 

A  broker,  employed  to  procure  a  purchaser 
of  real  estate  to  receive  as  commissions  any  sum 
in  excess  of  $45  per  acre,  cannot  recover  com- 
missions where  the  owner  himself  sold  the  land 
at  $45  per  acre,  in  the  absence  of  a  showing  that 
the  sale  was  made  in  fraud  of  the  broker's  rights. 
though  be  claims  he  could  have  sold  for  $50  per 
acre. 

(Ed.  Note^— For  other  cases,  see  Brokers,  Cent. 
Dig.  {  47 ;   Dec.  Dig.  §  4a*] 

Appeal  from  District  Court,  Monona  Coun- 
ty; F.  R.  Gaynor,  Judge. 

Action  at  law  to  recover  commissions  for 
alleged  services  in  the  sale  of  real  estate. 
Judgment  for  defendant,  and  plaintiff  ap- 
peals.   Affirmed. 

George  H.  Clark  and  C.  E.  Underbill,  for 
appellant.  T.  B.  Lutz  and  A.  Kendall,  for 
appellee. 


PE'R  CURIAM.  In  the  first  count  of  hU 
petition  plaintiff  declares  upon  an  alleged 
oral  contract  of  employment  or  agency  by 
which  he  was  authorized  to  sell  or  procure 
a  purchaser  for  a  certain  240-acre  tract  of 
land  owned  by  plaintiff,  at  the  net  price  of 
$61  per  acre;  his  commission  for  such  servi- 
ces to  be  the  excess.  If  any,  above  such  price 
for  which  he  might  be  able  to  sell  the  land. 
He  alleges  that  In  pursuance  of  such  agree- 
ment he  did  find  a  customer  to  whom  de- 
fendant sold  the  land  for  a  sum  exceeding 
the  net  price  above  mentioned  by  the  sum  of 
$960,  which  excess  or  commission  the  de- 
fendant refuses  to  pay  or  account  for.  Id 
the  second  count  of  the  petition  he  declares 
upon  a  similar  alleged  contract  for  the  sale 
of  an  80-acre  tract  at  the  net  price  of  $49 
per  acre.  He  avers  that  he  found  a  persoc 
to  whom  he  showed  the  land,  and  Interested 
him  in  Its  purchase  at  the  rate  of  $50  per 
acre,  but  that  defendant,  knowing  that  fact, 
interfered,  and,  taking  advantage  of  the 
service  rendered  by  plaintiff,  sold  the  land' 
to  said  customer,  and  that  but  for  such  In- 
terference the  plaintiff  would  have  made  the 
sale  at  $50  per  acre,  thereby  making  a  profit 
of  $400,  which  sum  he  seeks  to  recover  as 
damages.  The  defendant  denies  each  count 
of  the  petition,  and  each  and  every  allega- 
tion therein  contained.  He  further  specially 
alleges  that  the  land  mentioned  in  the  first 
count  was  sold  through  the  agency  of  on* 
John  Bucklo,  to  whom  be  paid  a  commission. 
The  plaintiff  moved  to  strike  the  special 
matter  above  mentioned  from  the  answer 
because  the  same  Is  Irrelevant,  Immaterial, 
and  redundant;  and,  the  motion  being  de- 
nied, error  Is  assigned  on  the  ruling.  In  sub- 
mitting the  case  to  the  Jury  the  court  with- 
drew from  its  consideration  the  second 
count  of  plaintiff's  petition  for  want  of  suffi- 
cient evidence  to  support  »,  recovery  thereon. 
To  this  the  plaintiff  also  makes  exception. 
Upon  the  first  count  a  verdict  was  returned 
for  the  defendant,  and,  motion  for  new  trial 
being  denied,  and  Judgment  being  rendered 
against  plaintiff  for  costs,  he  tarings  the  case 
,to  this  court  by  appeal. 

1.  Concerning  plalntUTs  motion  to  strike 
from  the  answer  the  allegation  of  the  sale 
of  the  land  through  the  agency  of  a  third 
person,  it  Is  sufficient  to  say  that  if  the  rul- 
ing was  erroneous,  It  was  without  any  sub- 
stantial prejudice.  At  the  worst  the  matter 
sought  to  be  stricken  was  in  the  nature  of 
evidence;  and,  while  the  motion.  If  made  on 
that  ground,  might  properly  have  been  sus- 
tained, yet  its  denial  could  work  no  Injury 
to  the  plaintiff.  It  was  competent  to  prove, 
if  such  were  the  fact,  that  the  sale  were 
made  through  another  and  different  agent, 
and  not  through  the  effort  or  service  of  ths 
plaintiff.  Hunn  t.  Ashton,  121  Iowa,  26ft, 
96  N.  W.  745. 

2.  Except  as  to  the  point  disposed  of  to 


•Vor  otber  easn  •••  torn*  toplo  and  caotlon  NUMBER  In  D«c.  &  Am.  Digs.  1907  to  date,  it  Raportor  ladezw 


Digitized  by  VjOOQ  l€ 


836 


122  NORTHWESTERN  REPORTER. 


(lowm 


the  foregoing  paragraph,  the  argument  ot 
the  counsel  in  this  court  goes  solely  to  the 
fact,  questions  -whether  plaintiff  did  hare 
anj  contract  with  the  defendant  as  alleged, 
and,  If  so,  whether  he  performed  the  alleged 
service,  and  thereby  became  entitled  to  re- 
cover the  agreed  compensation.  All  these 
propositions  -were  matters  of  sharp  and  ir- 
reconcilable dispute  In  the  testimony,  and 
were  properly  submitted  by  the  trial  court 
to  the  jury,  which  found  against  plaintiff's 
contention.  We  cannot  review  the  fact  find- 
ings of  the  Jury  where  there  Is  any  substan- 
tial evidence  to  support  them. 

Concerning  the  action  of  the  court  in  with- 
drawing the  second  count  from  the  jury, 
we  think  it  fully  Justified.  The  land  was 
sold  by  the  defendant  himself  to  the  pur- 
chaser at  $45  per  acre,  and  there  Is  no  show- 
ing that  such  sale  was  made  In  fraud  of 
plaintiff's  rights,  If  any  he  had.  In  the  prem- 
ises. 

There  is  no  ground  shown  for  disturbing 
the  judgment  below,  and  it  Is  affirmed. 


PETERS  et  aL  ▼.  SNAVELY-ASHTON. 
(Supreme  Court  of  Iowa.     Oct.  19,  1909.) 
Attachment  (§  351*)  —  Wrongful  Attach- 
ment —  Hecovebt  of  Attobnet's  Fees  — 
Statutes. 

Code  1897,  %  SS87,  authorizing,  in  an  ac- 
tion on  an  attachment  bond  for  a  wrongful  at- 
tachment, a  recoverv  of  actual  damages  sus- 
tained, and  reasonable  attorney's  fees  to  be 
fixed  by  the  court,  when  construed  in  connec- 
tion with  sectiong  38S0,  3885,  3888,  relating 
to  attachment,  and  providing  for  an  attach- 
ment bond  conditioned  on  plaintiff  paying  all  the 
damages  which  defendant  may  sustain  by  reason 
of  a  wrongful  attachment,  etc.^  does  not  refer 
to  attorney's  fees  for  securing  a  release  of  the 
attachment,  which  are  a  part  of  the  damages 
sustained,  but  refers  to  attorney's  fees  for  prose- 
cuting the  action  on  the  bond. 

[Ed.  Note. — For  other  cases,  see  Attachment, 
Cent.  Dig.  {  1294;    Dec.  Dig.  S  351.»] 

Former  opinion  modified.    Petition  for  re- 
hearing overruled. 
For  former  opinion,  see  120  N.  W.  1048. 

DEEMER,  J,  In  a  petition  for  rehearing 
filed  by  appellee's  counsel  the  conclusion  In 
the  first  division  of  the  opinion,  with  ref- 
erence to  the  allowance  of  attorney's  fees, 
la  challenged,  and  upon  a  re-examination  of 
the  points  therein  decided,  we  are  of  opin- 
ion that  we  were  wrong  with  respect  to  the 
propositions  there  stated.  Section  3885  of 
the  Code  provides,  in  substance,  that  In  all 
cases  of  attachment  plaintiff  must  give  a 
bond  for  the  use  of  the  defendant  In  a  pen- 
alty at  least  double  the  value  of  the  prop- 
erty sought  to  be  attached,  conditioned  that 
the  plaintiff  will  pay  all  damages  which  the 
defendant  may  sustain  by  reason  of  the 
wrongful  suing  out  of  the  attachment  Sec- 
tion 3880  reads  as  follows:    "If  the  plain- 


tUTs  demand  be  founded  on  contract,  tbe 
petition  must  state  that  something  la  due, 
and  as  nearly  as  practicable,  the  amount, 
which  must  be  more  than  five  dollars  in  or- 
der to  authorize  an  attachment"  Section 
3888  reads  In  this  wise:  "Tbe  fact  stated  aa 
a  cause  of  attachment  shall  not  be  contested 
in  the  action  by  a  mere  defense.  The  de- 
fendant's remedy  shall  be  on  the  bond,  but 
he  may  in  bis  discretion  sue  thereon  by  way 
of  counterclaim,  and  in  such  case  shall  re- 
cover damages  as  in  an  original  action  on 
such  bond."  And  by  section  3887  it  Is  pro- 
vided: "In  an  action  on  such  bond,  theplain- 
tlff  therein  may  recover.  If  he  shows  that 
the  attachment  was  wrongfully  sued  out,  and 
that  there  was  no  reasonable  cause  to  believe 
tbe  ground  upon  which  the  same  was  ISBued 
to  be  true,  the  actual  damages  sustained, 
and  reasonable  attorney's  fees  to  be  fixed 
by  the  court;  and  If  It  be  shown  such  at- 
tachment was  sued  out  maliciously,  he  may 
recover  exemplary  damages  nor  need  he  wait 
until  the  principal  suit  is  determined  before 
suing  on  the  bond."  In  construing  these 
various  sections  we  have  heretofore  held  that 
if  the  action  be  founded  on  contract,  and 
there  was  in  fact  no  indebtedness,  the  at- 
tachment Is  wrongful.  Nordhaus  v.  Peterson, 
54  Iowa,  68,  6  N.  W.  77 :   Porter  v.  Wilson, 

4  G.  Greene,  314.  And  we  have  also  held 
that  attorney's  fees  may  be  considered  as 
part  of  tbe  damages  suffered  by  the  defend- 
ant in  case  the  attachment  is  wrongfully 
sued  out.  Whitney  v.  Brownewell,  71  Iowa, 
251,  32  N.  W.  285;  Connelly  v.  White,  122 
Iowa,  391,  98  N.  W.  144. 

There  is  some  confusion  in  our  cases  upon 
this  subject  due  to  what  we  now  believe  to 
have  been  a  misapprehension  of  the  effect 
of  section  3887  of  the  Code.  We  have  said 
in  some  of  these  cases  that  attorney's  fees 
are  to  be  fixed  by  the  court  and  are  not  to 
be  considered  by  the  Jury  in  awarding  the 
damages.    Dickinson  v.  Athey,  96  Iowa,  3G3, 

05  N.  W.  826;  Porter  v.  Knight  63  Iowa,  3G5, 
19  N.  W.  282.  But  In  each  of  these  cases 
the  only  question  was  the  allowance  of  at- 
torney's fees  to  be  made  under  that  section, 
which  are  to  be  allowed,  as  we  now  think,  as 
part  of  tbe  costs,  not  for  defending  against 
the  attachment  but  for  the  prosecution  of 
the  action  on  the  bond,  either  in  an  original 
proceeding  or  by  way  of  counterclaim.  The 
statute  itself  provides  that  defendant  shall 
be  allowed  the  actual  damages  sustained  and 
reasonable  attorney's  fees  to  be  taxed  by  the 
court.  The  attorney's  fees  here  mentioned 
are  not  the  damages  for  securing  the  release 
of  the  attachment  but  are  allowed  as  part 
of  the  costs  of  the  action  to  recover  the 
damages.  This  is  the  only  theory  upon 
which  such  attorney's  fees  may  be  fixed  by 
the  court  They  are  not  a  part  of  the  orig- 
inal damages;   for.  If  they  were,  a  jury  and 


•For  other  cbsm  u*  same  topio  and  secUoii  NUMBER  In  Dec.  A  Am.  Digs.  1907  to  data,  *  Reportar  ladazea 


Digitized  by  VjOOQ  l€ 


Iowa) 


UILLER  V.  ROSEBROOE. 


837 


not  the  court  would  have  power  to  fix  and 
allow  the  same.  Weller  v.  Hawes,  49  Iowa, 
45;  Porter  v.  Knight,  63  Iowa,  865,  19  N. 
W.  282.  These  attorney's  fees  are  not  to  be 
considered  as  part  of  the  damages.  In  the 
action  on  the  bond  we  are  constrained  to 
hold  that  attorney's  fees  for  securing  the  re- 
lease of  the  attachment,  or  of  the  attached 
property,  may  prc^erly  be  considered  as 
part  of  the  damages  sustained  by  the  at- 
tachment defendant  This  view  finds  some 
support  In  Vorse  v.  Phillips,  37  Iowa,  428; 
Lyman  y.  Lauderbaugh,  75  Iowa,  4S1,  39  N. 
W.  812;  Union  Mercantile  Co.  v.  Chandler, 
90  Iowa,  650,  67  N.  W.  595 ;  Behrens  v.  Mc- 
Kenzie,  23  Iowa,  333,  92  Am.  Dec.  428 ;  Selz 
T.  Belden,  48  Iowa,  451 ;  Solomon  t.  McLen- 
nan, 81  Iowa,  406,  46  N.  W.  1083 ;  Byford  v. 
Glrton,  90  Iowa,  661,  57  N.  W.  688.  This  is 
the  rule  in  other  states.  See  Seay  t.  Green- 
wood, 21  Ala.  491;  Swift  v.  Plessner,  39 
Mich.  178;  Raymond  ▼.  Green,  12  Neb.  215, 
10  N.  W.  709,  41  Am.  Rep.  763 ;  Buckley  v. 
Van  DlTer,  70  Misa  622,  12  South.  905. 

If,  then,  attorney's  fees  may  be  allowed 
as  an  Item  of  actual  damages.  It  Is  clear 
that  the  section  of  the  Code  has  no  reference 
to  these,  but  to  attorney's  fees  for  prose- 
cuting the  action  on  the  bond.  This  distinc- 
tion has  not  been  preserved  In  our  previous 
caste;  but,  as  it  has  now  been  brought  to 
our  attention  by  learned  counsel  for  appel- 
lee, we  take  advantage  of  the  opportunity 
to  change  the  original  opinion  In  this  re- 
spect, and  to  announce  what  we  believe  to 
be  the  proper  rule.  The  result  Is  that  the 
original  opinion  Is,  so  far  as  it  announces 
views  contrary  to  those  here  expressed,  to 
that  extent  modified.  In  other  respects  we 
are  satisfied  with  the  original  opinion,  and 
the  petition  for  rehearing  of  the  whole  case 
must  be,  and  it  is,  overruled. 


MILLER  et  al.  v.   ROSEBROOE. 
(Supreme  Court  of  Iowa.     Oct.  21,  1909.) 

L^PPEAI.   AND    EBBOB    (i    1175*)— ENTBT    OF 

FiNAI.  Decbxk. 

Though  the  case  on  appeal  from  dismiBsal 
of  a  petition  was  triable  de  novo  in  the  Supreme 
Court,  yet,  under  Code,  J  4139,  authorizing  it 
to  "reverse,  modify  or  affirm  the  judgment,  de- 
cree or  order,  appealed  from,  or  render  such 
as  the  inferior  court  should  have  done,"  it  was 
optional  with  the  Supeme  Coort  to  render  Judg- 
ment, or  reverse  that  of  the  trial  court  and  leave 
the  correction  to  be  made  by  it. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  i  4574;   Dec.  Dig.  8  1175.*] 

2.  Appxai  and  Ebbob  (g  1207*)— Rbvbbsal  in 
Past- Entbt  or  Final  Dbcbbb— Pbocb- 

DENDO. 

Where,  on  appeal  from  dismissal  of  a  peti- 
tion, the  Supreme  Court  held  that  a  judgment 
recovered  by  G.  against  defendant,  a  transcript 
ot  which  was  filed  in  the  district  court,  should 
have  been  treated  as  a  judgment  of  the  latter 


extent  only  reversed  the  decree,  and,  though 
this  left  something  to  be  done  to  give  plain- 
tiff the  relief  to  which  he  was  declared  entitled, 
there  was  no  direction  for  judgment  or  remand 
of  the  cause,  and  the  Supreme  Court  after- 
wards refused  to  enter  judgment,  because  ap- 
plication therefor  was  not  made  at  the  term  at 
which  the  decision  was  rendered,  or  within  the- 
time  prescribed  by  Sup.  Ct.  Rule  63,  the  trial 
court  had  jurisdiction,  and  it  was  its  duty,  on 
writ  of  procedendo  from  the  Supreme  Court, 
to  enter  such  a  decree  as  it  should  have  entered 
originally. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  §  4696 ;    Dec.  Dig.  f  1207.*J 

Appeal  from  District  Court,  Mahaska  Coun- 
ty;  Byron  W.  Preston,  Judge. 

The  opinion  in  B.  P.  Miller  v,  L.  R.  Rose- 
brook  was  filed  November  12,  1907.  A  peti- 
tion for  rehearing  having  been  detded,  pro- 
cedendo Issued,  and  thereafter  a  motion  for 
Judgment  was  overruled.  The  plaintiff  ap- 
peals.   Reversed. 

W.  H.  Keating  and  J.  P.  &  W.  R.  Lacey, 
for  appellants.  John  O.  Malcolm,  for  appel- 
lee. 

LADD,  J.  As  appears  from  the  opinion  In 
Miller  V,  Rosebrook,  136  Iowa,  158.  113  N. 
W.  771,  the  district  court  had  dismissed  the 
petition,  and  upon  appeal  this  court  held 
that  the  Judgment  recovered  by  Gilchrist 
against  defendant,  and  of  which  a  transcript 
had  been  filed  in  the  district  court,  should 
have  been  treated  as  a  Judgment  of  the  latter 
court,  and  that  plaintiff  as  assignee  thereof 
was  entitled  to  a  new  Judgment  thereon. 
In  other  respects  the  decree  was  affirmed. 
Such  Judgment  as  the  district  should  have 
rendered  might  have  been  entered  in  this 
court,  but  this  was  not  done,  nor  did  the 
opinion  expressly  so  direct,  or  that  plaintiff 
might  take  Judgment  in  either  court  at  his 
option,  nor  did  the  opinion  direct  that  the 
cause  be  remanded.  Something  more  was 
necessary  to  be  done,  however,  in  order  that 
plaintiff  have  the  relief  to  which  this  court 
declared  him  entitled,  and  upon  the  issuance 
of  the  writ  of  procedendo  to  the  district  court 
the  case  was  before  that  tribunal  precisely 
as  though  the  portion  of  the  cause  as  to 
which  there  was  a  reversal  had  been  sub- 
mitted to  that  tribunal  and  no  judgment 
entered  thereon.  Hogle  v.  Smith,  138  Iowa, 
32,  113  N.  W.  536.  True,  the  opinion  did  not 
in  terms  direct  that  the  cause  be  remanded, 
and  Judgment  might  have  been  taken  in  this 
court  But  application  therefor  was  not  made 
within  the  time  prescribed  In  the  rules  of  this 
court  (rule  63),  nor  at  the  term  of  court  at 
which  the  decision  was  rendered.  Roberts  v. 
Ctorbin  &  Co.,  26  Iowa,  315,  96  Am.  Dec.  146. 
For  these  reasons,  this  court  declined  to  enter 
Judgment  when  sought  during  the  following 
term,  and  after  the  ruling  of  the  district 
conit,  In  which  procedendo  had  been  filed 


court  and  that  plaintiff  as  assignee  of  it  was    <>»  plaintiff's  motion  for  Judgment  though 
entitled  to  a  new  judgment  on  it.  and  to  that  I  without  prejudice  to  the  appeal  from  such 

•For  otlwr  eaaw  sm  laaie  topie  4kaa  awtlon  NUMBER  Is  Dm.  *  Am.  Digs.  HOT  to  data,  *  Raportw  IndazM 

Digitized  by  LjOOQ  l€ 


838 


122  NORTHWESTERN  REPORTER. 


Qowa 


ruling.  As  we  underatand  the  record,  tbe 
district  court  refused  to  enter  judgment  on 
the  ground  that,  the  cause  being  triable  de 
novo  In  this  court,  ewA  a  decree  as  the  dis- 
trict court  should  hare  entered  could  only 
be  entered  here.  But  it  is  optional  with  this 
court  whether  it  enter  a  decree  in  any  case. 
The  statute  authorizes  it  to  "reverse,  modify 
or  affirm  the  Judgment,  decree  or  order  ap- 
pealed from  or  render  such  as  the  inferior 
court  should  have  done."  Section  4139,  Code. 
It  was  optional  with  this  court,  then,  wheth- 
er it  render  Judgment,  or  reverse  that  of  the 
trial  court  and  leave  the  correction  to  be 
aiade  by  it  That  this  court  has  such  au- 
thority appears  from  White  v.  Farlle,  67 
Iowa,  C2a  25  N.  W.  837;  Halt  v.  Ensign,  61 
Iowa,  724,  17  N.  W.  163;  Fenton  t.  Way, 
40  Iowa,  196;  llaggerty  v.  Brower,  105  Iowa, 
295,  75  N.  W.  321,  and  other  decisions.  In 
die  absence  of  application  for,  or  the  entry 
of,  such  Judgment  in  this  court  within  the 
time  during  which  Jurisdiction  is  retained. 
It  Is  to  be  presumed  that  the  party  fn  whose 
(avor  the  decision  has  been  rendered  has 
elected  to  have  the  final  decree  entered  in 
Che  tribunal  from  which  the  appeal  has  been 
taken,  and  the  filing  of  a  writ  of  procedendo 
confers  ample  authority  to  enter  such  a  de- 
cree as  should  liave  been  entered  by  it  orig- 
UjaUy.  Pitkin  v.  Peet,  96  Iowa,  748,  64  N. 
W.  793;  Hogle  v.  Smith,  136  Iowa,  82,  113 
S.  W.  656. 

Tbe  motion  for  Judgment  should  have  been 
•ustaiued. 

Reversed. 


ABEGG  et  al.  t.  HIRST  et  al. 
(Supreme  Court  of  Iowa.    Oct  21,  1909.) 
I.  Gifts  (§5  21,  11*J— Validitt— Knowledok 
OF  Donee. 

Knowledge  of  a  gift  purely  beneficial,  made 
to  a  trustee  for  the  benefit  of  the  donee,  need 
oot  be  broncbt  home  to  the  donee  during  the 
lifetime  of  the  donor,  and  it  is  immaterial  that 
there  is  a  postponement  of  the  time  of  enjoy- 
ment of  the  property  until  after  the  donor's 
death. 

[Ed.  Note.— For  other  cases,  see  Gifts,  Cent 
Dig.  S§  36,  9;    Dec.  Dig.  H  21,  11.*] 

t  Gifts  (I  23*)— Tbuotee  op  Donee. 

A  donor  may  have  him.self  constituted  trus- 
tee of  the  property  tor  the  donee. 

[Ed.  Note.— For  other  cases,  see  Gifts,  Cent 
Dig.  {  40;   Dec  Dig.  {  23.»] 

8.  Gifts  (|  16*)— Vauditt. 

As  a  general  rule,  where  something  remains 
to  be  done  in  carrying  out  the  donors  intent, 
oo  mutter  how  unequivocnl  the  intent  may  be, 
the  cift  is  not  complete ;  for  so  long  as  the  con- 
templated action  is  not  talten,  it  is  presumed 
'iiat  the  donor  intends  to  retain  the  title. 

[Ed.  Note.— For  other  cases,  see  Gifts,  Cent 
Dig.  i  3;    Dec.  Dig.  g  16.*] 

4.  HrsBAND  AND  Wife  (8  49%*)  —  Gift  to 
Wife. 

Decedent  purchased  with  his  own  money  a 
aote  and  mortgage,  had  them  assigned  to  him- 
eelf  and  bis  wife  jointly,  retained  possession  of 


tbe  assignment  during  his  lifetime,  and  collected 
the  Interest  apparently  in  his  own  right  Held, 
to  show  a  gift  to  the  wife  of  a  one-half  inter- 
est in  the  note  and  mortgage ;  tbe  delivery  of 
the  assignment  by  the  assignor  being  sufficient 

[EkI.  Note.— For  other  cases,  see  Husband  and 
Wife,  Cent  Dig.  {  251 ;    Dec  Dig.  |  49Vi.*] 

Appeal  from  District  Court,  Wapello  Coun- 
ty;  M.  A.  Roberts,  Judge. 

The  plaintiff  William  Abegg,  as  adminis- 
trator of  tbe  estate  of  William  Hirst  deceas- 
ed, reported  as  the  property  of  the  estate  a 
one-half  Interest  in  a  note  and  mortgage, 
which  had  been  purchased  with  decedent's 
money  during  his  lifetime,  and  assigned  in 
writing  to  "William  and  Janp  Hirst"  who 
were  the  decedent  and  his  wife,  then  living. 
Defendants,  as  heirs  of  William  Hirst  ob- 
jected to  this  report  on  the  ground  that  no 
Interest  passed  to  Jane  Hirst  by  this  assign- 
ment and  that  her  estate  (on  her  death  aft- 
er the  death  of  her  husband)  was  entitled  to 
only  a  one-third  interest  as  in  the  other  prop- 
erty left  by  her  husband.  The  court  sustain- 
ed this  objection,  and  the  coplaintiffs  with 
Abegg,  who  are  heirs  of  tbe  wife  and  inter- 
esjted  only  in  her  estate,  appeal  from  this 
ruling.    Reversed. 

Cornell  &  Gillies,  A.  W.  Enoch,  and  W. 
A.  Blagg,  for  appellants.  W.  W.  Epps,  for 
appellees. 

McCLAIN,  J.  It  appears  without  conflict 
in  the  evidence  that  William  Hirst  during 
his  lifetime  purchased  from  William  Abegg. 
bis  banker,  who  is  now  administrator  of  bis 
estate,  a  note  and  mortgage  of  one  McMillen 
for  $2,862,  and  that  by  the  direction  of  Hirst 
this  note  and  mortgage  were  by  Abegg  form- 
ally assigned  "to  William  and  Jane  Hirst'* 
The  money  paid  for  tbe  note  and  mortgage 
was  the  money  of  William  Hirst,  and  the 
assignment  was  made  in  this  form  because, 
as  William  Hirst  stated  to  Abegg.  "That  ia 
what  we  have  to  live  on."  Tbe  note  and 
mortgage,  with  this  assignment  indorsed 
thereon,  were  delivered  to  William  Hirst  and 
retained  in  bis  possession  until  his  death. 
While  be  lived  the  interest  was  paid  to  him 
at  his  request  There  is  no  evidence  that 
Jane  Hirst  had  any  knowledge  of  the  trans- 
action with  Abegg,  or  of  the  possession  by 
her  husband  of  the  note  and  mortgage  thus 
assigned  to  him  and  her  jointly.  The  sole 
question,  therefore,  la  whether  the  assign-- 
ment  of  the  note  and  mortgage  to  William 
Hirst  and  his  wife  jointly,  and  the  delivery 
of  the  Instruments  to  him,  and  the  subsequent 
retention  thereof  in  his  possession  during  bla 
lifetime,  accompanied  by  the  collection  of  in- 
terest thereon  apparently  In  bis  own  right 
show  a  gift  of  a  oue-half  interest  therein  to 
the  wife. 

It  is  not  contended  tbat  the  wife  as  sur- 
vivor became  entitled  to  the  entire  interest 
In  tbe  note  and  mortgage.    By  .our  statatA 


•for  other  cues  (e«  tame  topic  and  section  NUBBEB  In  D«c.  A  Am.  Dial.  U07  to  data.  *  Baportor  Iiid«x«s 


Digitized  by  VjOOQ  l€ 


Iowa) 


COLLINS  v.  SMITH. 


839 


(Code>  t  2923)  a  conveyance  of  real  estate 
to  two  or  more  In  their  own  right  creates  a 
tenancy  In  common,  unless  a  contrary  intent 
Is  expressed.  Whether  this  rule  should  be 
applied  also  to  transfers  of  personal  prop- 
«rty  we  hare  no  occasion  now  to  determine. 
The  sufficiency  of  the  acts  of  the  owner  of 
personal  property,  who  expresses  an  inten- 
tion to  make  a  gift  thereof,  to  show  a  con- 
summation of  such  gift  so  as  to  pass  present 
title  has  often  been  the  subject  of  contro- 
versy In  this  and  In  other  courts,  but  there 
are  peculiarities  of  this  case  which  take  it 
out  of  the  rules  usually  announced  as  deter- 
mining the  consummation  of  the  gift.  The 
note  and  mortgage,  although  procured  with 
the  money  of  William  Hirst,  were  by  his  di- 
rection assigned  to  himself  and  wife,  and 
this  assignment  Indicated,  we  think,  an  in- 
tention that  his  wife  should  have  in  her 
own  right  an  interest  therein.  Had  the  as- 
-slgnment  been  to  the  wife,  accompanied  by 
delivery  to  a  trustee  to  hold  for  the  wife 
until  her  husband's  death,  collecting  the  In- 
terest In  the  meantime  for  the  benefit  of  Wil- 
liam Hirst,  there  would  have  been  no  doubt 
as  to  the  complete  consummation  of  the  gift; 
for  knowledge  of  such  a  gift,  purely  bene- 
ficial, need  not  be  shown  to  have  been 
brought  home  to  the  donee  during  the  life- 
time of  the  donor,  and  it  Is  Immaterial  that 
there  is  a  postponemept  of  the  time  of  en- 
joyment of  the  property  until  after  the  do- 
nor's death.  Hogan  v.  Sullivan,  114  Iowa, 
456,  87  N.  W.  447;  Larimer  v.  Beardsley, 
130  Iowa,  708,  107  N.  W.  935.  And  the 
donor  may  have  himself  constituted  the  trus- 
tee of  the  property  for  the  donee.  Tallman 
V.  Cooke,  39  Ibwa,  402;  Newton  v.  Bealer, 
41  Iowa,  834;  Arrington  v.  Arrlngton,  114 
N.  C.  116,  19  S.  B.  278. 

The  general  rule  announced  by  the  cases 
is  that,  where  something  remaii)s  to  be  done 
In  carrying  out  the  donor's  Intent,  no  matter 
how  unequivocal  the  intent  Itself  may  be, 
the  gift  Is  not  complete;  for  so  long  as  the 
contemplate4  action  la  not  taken.  It  Is  to 
"be  presumed  that  the  donor  Intends  to  re- 
tain the  title.  But  here  nothing  remained 
for  him  to  do.  The  assignment  was  absolute 
and  unconditional.  He,  as  one  of  the  Joint 
assignees,  was  entitled  to  the  possession  of 
tbe  Instruments.  His  possession  thereof  was 
not  In  any  way  Inconsistent  with  the  com- 
plete vesting  of  title  to  a  one-half  Interest 
In  his  wife,  for  delivery  to  either  one  In 
pursuance  of  the  assignment  was  a  complete 
execution  of  such  assignment  From  the 
time  of  the  delivery  to  him  of  tbe  Instru- 
ments the  transaction  vesting  title  thereto 
in  common  In  himself  and  wife  was  complete. 
The  title  of  his  wife's  half  interest  did  not 
come  to  her  through  blm,  but  came  to  her 
directly  by  his  procurement  from  the  as- 
signor. There  was  no  occasion  for  blm  to 
deliver  the  Instrument  to  his  wife  In  order 


to  perfect  a  transfer  of  such  Interests  as  she 
acquired  directly  from  the  assignor  by  the 
assignment  A  delivery  by  the  assignor  to 
complete  the  assignment  was  sufficient  Mc- 
Elroy  V.  Albany  Sav.  Bk.,  8  App.  Dlv.  46,  40 
N.  Y.  Supp.  422;  Sanford  v.  Sanford,  45  N. 
Y.  723.  The  case  of  In  re  Brown's  Estate, 
113  Iowa,  351,  85  N.  W.  617,  seems  to  be 
quite  In  point  There  the  question  was 
whether  the  wife  of  the  donor  acquired  any 
interest  in  certificates  of  deposit  taken  by 
him  in  a  bank,  and  made  payable  to  himself 
and  wife,  and  the  court  held  that  by  such  a 
transaction  the  wife  acquired  a  one-balf 
Interest,  although  no  delivery  of  the  certif- 
icates to  her  as  her  own  was  ever  made. 

We  reach  the  conclusion  that  the  court  err- 
ed In  holding  that  a  one-half  interest  In  the 
note  and  mortgage  did  not  vest  in  Jane  Hirst 
and  in  sustaining  the  objection  to  the  ad- 
ministrator's report  In  which  William  Hirst's 
estate  was  credited  with  only  one-half  of  tbe 
amount  of  the  note  and  mortgage. 

Reversed. 


COLUNS  ▼.  SMITH  et  al.  (SCHLOESSEB, 

Intervener). 

(Supreme  Conrt  of  Iowa.     Oct  21,  1909.) 

1.  DowEB  (J  20*)— Lahd  Conveyed  Just  Be- 
fORB  Mabbiaoe. 

A  widow  is  not  entitled  to  dower  in  land 
which  her  husband  conveyed  just  before  their 
marriage;  the  conveyance  having  been  with  her 
knowledge  and  consent. 

[Ed.  Note.— For  other  cases,  see  Dower,  Cent 
Dig.  §  15;   Dec.  Dig.  8  20.*] 

2.  Deeds  (f  59*)— Delivebt. 

There  is  a  sufficient  delivery  of  a  deed  re- 
serving to  the  grantor  for  life  the  possession  and 
rents  of  the  property,  it  being  at  once  recorded 
at  his  instance,  though  it  was  returned  to  him 
and  remained  in  his  possession  til]  his  death ;  it 
appearing  from  all  the  circumstances  titat  he  in- 
tended by  his  acts  to  pass  title  to  the  grantees. 

[Ed.  Note.— For  other  cases,  see  Deeds,  Cent. 
Dig.  f  139;    Dec  Dig.  i  59.»] 

Appeal  from  District  Court,  Dallas  Coun- 
ty; J.  H.  Applegate,  Judge. 

Action  for  the  partition  of  lands.  Julia 
Schloesser  intervened,  alleging  that  as  the 
widow  of  Julius  Schloesser,  the  former  own- 
er of  said  lands,  she  had  a  dower  right  there- 
in. She  appeals  from  a  Judgment  against 
such  claim.    Affirmed. 

R.  S.  Barr  and  Shortley  &  Kelley,  for  ap- 
pellant White  &  Clarke,  for  appellee  Fred 
E.  Collins.  A.  H.  McVey,  for  appellee  Ade- 
line Knight 

SHERWIN,  3.  The  plaintift  brought  this 
action  for  the  partition  of  land,  alleging  that 
he  was  the  owner  of  an  undivided  one-half 
Interest  In  about  200  acres ;  that  he  derived 
his  title  thereto  by  deeds  from  Julius 
Schloesser,  Albert  Schloesser,  and  August 
Schloesser,  who  were  sons  of  Julius  Schloes- 


■•For  otiier  caa«a  iw  inm*  topic  and  section  NUMBER  In  Dec.  *  Am.  Diss.  1907  to  date,  *  Reporter  Indexe* 


Digitized  by  VjOOQ  l€ 


840 


122  NORTHWESTERN  RBPOfRTEH. 


(Iowa 


ser,  deceased;  that  the  said  deceased,  prior 
to  bis  death,  executed  and  delivered  to  said 
BODS  and  Ills  other  children,  Herman  Schloes- 
ser,  Clara  Smith,  and  Adeline  Knight,  a  deed 
conveying  to  the  said  children  the  real  es- 
tate sought  to  be  partitioned,  share  and 
share  alike,  subject,  however,  to  a  life  es- 
tate In  himself.  It  was  further  alleged  that 
Herman  Schloesser  had  conveyed  his  inter- 
est In  said  land  to  the  defendant  Angelo  G. 
Smith,  who,  together  with  his  codefendants, 
Clara  Smith  and  Adeline  Knight,  each  own- 
ed one-sixth  of  said  land.  The  defendants 
made  no  contest,  but  the  appellant,  Julia 
Schloesser,  intervened,  claiming  as  against 
all  of  the  other  parties  to  the  suit,  that  she 
was  the  ahsolute  owner  of  a  one-third  inter- 
est in  the  land  in  controversy  as  the  widow 
of  said  Julius  Schloesser,  deceased.  She  also 
alleged  that  she  was  married  to  the  said  de- 
ceased on  the  14th  day  of  January,  1900; 
that  the  deed  conveying  the  land  in  question 
to  his  children  was  made  on  the  lltb  day  of 
January,  1900,  which  was  long  after  their  en- 
gagement, and  the  day  that  deceased  procur- 
ed a  license  to  marry  her.  Intervener  plead- 
ed further  that  the  said  deed  was  never  de- 
livered to  said  children  nor  accepted  by 
them,  and  that  the  plaintiff  had  full  notice 
and  knowledge  of  her  marital  rights  In  said 
land  at  the  time  of  his  purchase  thereof,  and 
further,  that  the  deed  was  secretly  made 
with  the  fraudulent  purpose  and  intent  of 
depriving  Intervener  of  her  statutory  inter- 
est In  said  land.  But  two  questions  need  be 
discussed  in  determining  the  rights  of  the 
parties :  First,  was  the  deed  from  Julius 
Schloesser  to  his  children  made  with  the 
knowledge  and  consent  of  the  intervener; 
second,  was  there  sufficient  delivery  and  ac- 
ceptance thereof  to  pass  the  title  to  the  land. 
1.  At  the  time  of  his  marriage  to  the  inter- 
vener Julius  Schloesser  was  a  widower  about 
65  years  of  age.  The  Intervener  was  45 
years  old,  and  had  never  been  married.  In 
addition  to  the  land  conveyed  to  his  children 
he  owned  property  of  the  value  of  $2,000  or 
$3,000,  and  the  appellant  owned  40  acres  of 
valuable  land  and  some  other  property.  The 
life  estate  reserved  by  the  grantor  was  worth 
from  $600  to  $800  per  year.  A  careful  read- 
ing of  the  record  convinces  us  that  the  deed 
in  question  was  made  with  the  full  knowl- 
edge and  consent  of  the  Intervener,  and  for 
the  purpose  of  carrying  out  a  plan  that  had 
heen  partly  executed  a  few  days  before  the 
death  of  the  first  wife  in  1897.  The  positive 
testimony  of  several  witnesses  Is  to  this  ef- 
fect, and  there  are  circumstances  of  weight 
which  support  such  testimony.  The  deed  in 
question  was  at  once  recorded  at  the  in- 
stance of  the  grantor,  and  was  then  returned 
to  him,  and  remained  in  his  possession  until 
his  death  in  June,  1908.  According  to  the 
appellant's  own  testimony,  she  knew  that  the 
deed  had  been  made  and  recorded  at  least 


6  years  before  her  husband's  death.  She 
knew  that  the  children  were  claiming  to  own 
the  land  described  therein,  and  that  they 
were  asserting  the  right  to  sell  and  convey 
their  interest  in  it,  and  there  is  evidence 
tending  to  prove  that  she  knew  of  the  con- 
veyance to  plaintiff  long  before  her  husband's 
death.  In  1908  she  Joined  her  husband  in 
the  conveyance  of  other  real  estate,  and,  so 
far  as  the  record  before  us  discloses,  no 
word  of  protest  against  the  conveyance  to 
the  children  was  ever  uttered  by  her.  These 
circumstances  and  the  positive  testimony  to 
which  we  have  referred  leave  no  serious 
question  in  our  minds  as  to  her  consent  to 
the  conveyance  to  the  children. 

2.  Nor  do  we  think  there  can  be  any  seri- 
ous question  as  to  there  being  a  sufficient  de- 
livery of  the  deed  to  pass  the  title  to  the 
children.  Delivery  is  largely  a  question  of 
Intent ;  and,  if  from  all  of  the  circumstances 
it  appears  that  the  grantor  intended  by  bis 
acts  to  pass  present  title,  there  may  be  a  suf- 
ficient delivery,  although  grantees  have  never 
had  manual  possession  of  the  deed.  If  it 
were  intended  to  pass  title,  and  all  parties 
so  treated  it,  the  delivery  was  sufficient  The 
deed  itself  shows  an  intent  to  pass  present 
title,  for  it  says:  "I  hereby  make  said  con- 
veyance subject  to  the  following  reservation, 
to  wit:  I  hereby  expressly  reserve  the  pos- 
session, right  of  possession,  use,  rents,  and 
profits  of  said  real  estate  for  and  during  my 
natural  life."  Surely,  If  a  present  delivery 
was  not  intended,  the  language  quoted  was 
wholly  unnecessary.  Moreover,  the  convey- 
ances to  the  plaintiff  were  made  shortly  after 
the  deed  to  the  children  was.  recorded,  and 
after  consultation  with  the  grantor  as  to  the 
right  of  the  children  to  sell. 

The  decree  of  the  district  court  la  right, 
and  it  Is  affirmed. 

Affirmed. 


ANDREWS  ▼.  KENNON  et  al. 
(Supreme  Court  of  Iowa.    Oct.  21,  1909.) 

1.  MORTQAOES     (§     460*)— FOBECLOSUBB— BUB- 

DBN  OF  Proof. 

A  receiver  of  a  bank,  who  seeks  to  fore- 
close as  a  mortgage  a  deed  absolute  in  form,  to 
the  cashier  of  the  bank,  with  the  word  "trus- 
tee" added  after  his  name,  has  the  burden  of 
showin;;  that  the  deed  was  made  on  behalf  of 
the  bank. 

{Ed.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  §  1351;  Dec.  Dig.  g  460.*] 

2.  MOBTOAOES   ({   463*)— E^OBECLOSITRB— Bub- 
den  OP  Proof. 

Evidence  held  not  to  show' that  a  deed  to 
the  cashier  of  a  bank,  with  the  wort  "trustee" 
added  after  bis  name,  was  executed  on  behalf 
of  the  bank  as  a  mortgage  to  secure  a  loan  due 
from  the  grantor  to  the  bank. 

[Ed.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  i  1367;  Dec.  Dig.  S  463.*] 

Appeal  from  District  Court,  Adams  Coun- 
ty; H.  K.  Evans.  Judge. 


•For  other  caaea  ae«  same  topic  and  lection  NUMBER  In  D^.  &  Am.  Dice.  1907  to  dat*,  *  Reporter  Inde; 


Digitized  by  VjOOQ  IC 


Iowa) 


ANDREWS  ▼.  EENNON. 


841 


This  to  an  action  of  torecIoBure.  There 
was  a  decree  for  the  plaintiff  as  the  principal 
defendant,  and  for  the  defendant  Clara  K. 
Worley  as  a  subsequent  Uenholder.  The 
plaintiff  appeals.    AflSrmed. 

Maxwell  &  Maxwell,  for  appellant  Mey- 
erboff  &  Gibson,  for  appellee. 

EVANS,  C  J.  The  plaintiff  is  receiver 
of  the  Corning  State  Savings  Bank.  He  be- 
came such  on  February  22,  1904.  Among 
the  papers  and  assets  which  came  into  his 
hands  as  the  property  of  the  bank  was  a 
certain  warranty  deed  of  certain  real  estate, 
dated  January  11,  1896,  and  executed  by  F. 
A.  Kennon  and  wife,  as  grantors,  to  F.  L. 
La  Rue,  trustee,  as  grantee.  At  the  time 
of  the  execution  at  such  deed  La  Rue  was 
the  cashier  of  the  bank,  and  afterwards  be- 
came its  president,  and  so  continued  up  to 
the  time  of  his  death,  which  occurred  Im- 
mediately preceding  the  appointing  of  the 
plaintiff  as  receiver.  Mrs.  Kennon  was  a 
sister  of  La  Rue.  The  Kennons  had  contin- 
ued in  possession  of  the  real  estate  at  all 
times  since  the  deed  was  made.  Upon  re- 
ceiving the  deed  plaintiff  immediately  con- 
ferred with  the  Kennons  in  relation  thereto. 
They  informed  him  that  the  deed  was  in- 
tended as  a  mortgage,  and  was  given  to 
secure  the  bank  for  indebtedness  owing  to  it 
by  Kennon.  At  the  time  of  Its  execution 
this  indebtedness  amounted  to  about  f(i,0OO. 
It  had  been  reduced  to  the  sum  of  $2,740, 
which  was  represented  by  the  note  for  that 
sum,  dated  September  6,  1903,  and  due  in  six 
months,  and  which  was  among  the  assets 
of  the  hank  at  the  time  of  La  Rue's  death. 
Acting  upon  this  information,  the  plaintiff 
treated  the  deed  as  a  mortgage,  and  under- 
took to  collect  the  debt  He  requested  a  con- 
veyance of  the  property  and  satisfaction  of 
the  debt  but  this  was  refused  by  the  Ken- 
nons. In  the  meantime,  In  October,  1904, 
defendant  Clara  K.  Worley  obtained  a  Judg- 
ment against  the  Kennons,  which  became  a 
Hen  upon  their  Interest  In  such  real  estate. 
In  1906  she  caused  an  execution  under  her 
Judgment  to  be  levied  upon  the  property,  and 
caused  an  execution  sale  thereof,  at  which 
she  became  the  purchaser.  Before  the  execu- 
tion sale  the  plaintiff  commenced  this  action 
of  foreclosure,  and  asked  for  the  establish- 
ment of  a  Hen  against  said  property  for  the 
amount  of  the  debt  owing  to  the  bank,  and 
that  such  lien  be  declared  superior  to  that 
of  defendant  Worley.  The  Kennons  default- 
ed in  the  action,  and  decree  was  entered  as 
prayed  as  against  them;  no  service  having 
been  bad  on  defendant  Worley.  After  serv- 
'ice  of  notice  upon  her  she  appeared  and  re- 
sisted plaintlfTs  action.  The  defenses  were 
(1)  general  denial,  and  (2)  that  the  deed  was 
fraudulently  altered  and  therefore  void.  In 
her  general  denial  she  urged  especially  that 
the  deed  was  not  given  to  secure  any  indebt- 
edness owing  to  the  bank,  but  that  it  was 


given  to  secure  La  Rne  personally  for  lia- 
bilities Incurred  by  him  on  behalf  of  Ken- 
non. The  alterations  alleged  were  that  the 
word  "trustee"  had  been  inserted  after  the 
name  of  the  grantee,  and  that  certain  other 
proi>erty  had  been  included  in  the  descrip- 
tion which  was  not  then  owned  by  the  Ken- 
nons, but  bad  been  conveyed  by  them  to  La 
Rue  some  months  previously,  and  which  prop- 
erty is  not  Involved  in  this  controversy. 

Under  this  record  we  are  not  greatly  Im- 
pressed with  the  defense  of  fraudulent  al- 
teration set  up.  The  original  instrument  has 
been  certified  to  us.  Its  physical  appearance 
indicates  no  alteration.  On  the  contrary,  its 
appearance  is  such  as  to  be  very  convincing 
that  no  alteration  was  ever  made  therein. 
The  alterations  contended  for  appear  void  of 
motive  and  of  materiality,  and  we  shall  give 
that  defense  no  further  consideration.  The 
substantial  controversy  between  the  parties 
Is  involved  in  Ipe  defense  of  general  denial. 
The  deed  does  not  in  terms  purport  to  be 
made  to  the  bank,  nor  in  its  behalf.  The  bur- 
den Is  therefore  upon  the  plaintiff  to  estab- 
lish that  fact  by  other  evidence.  The  plain- 
tiff meets  this  burden  by  showing  that  such 
was  the  construction  which  the  Kennons 
themselves  put  upon  the  deed  at  the  time 
he  brought  it  to  their  attention,  and  that 
such  is  the  construction  tbey  have  put  up- 
on it  ever  since.  This  was  the  construc- 
tion put  by  them  upon  it  prior  to  the  ac- 
quiring of  any  Interest  or  lien  by  the  de- 
fendant Worley,  and  at  a  time  when  they 
alone  bad  any  interest  in  contesting  or  dis- 
puting the  instrument  The  plaintiff  also 
called  F.  A.  Kennon  as  a  witness  at  the 
trial,  and  he  has  testified  in  substantial  ac- 
cordance with  his  previous  claims.  As  al- 
ready indicated,  both  the  Kennons  submitted 
without  defense  to  a  decree  in  substantial 
accord  with  this  constmctlon.  As  against 
this,  it  is  shown  by  the  defendant  that  at 
the  time  the  deed  was  executed  La  Rqe  was 
surety  for  Kennon  on  the  notes  due  the  bank, 
and  that  he  had  incurred  some  other  lia- 
bilities for  him.  The  notary  who  took  the 
acknowledgment  testified  that  La  Rue  said 
he  was  taking  the  deed  for  his  own  personal 
protection  against  liabilities  incurred  for 
Kennon.  He  was  not  surety  for  Kennon  on 
the  last  note  executed  In  September,  1903,  and 
had  not  been  surety  for  him  for  some  years 
prior  to  such  date.  He  had  paid  taxes  up- 
on the  property  with  his  personal  checks. 
In  1902,  while  he  was  president  of  the  bank, 
he  had  procured  a  policy  of  insurance  upon 
the  property  In  the  name  of  Kennon.  The 
application  for  the  insurance  declared  Ken- 
non to  be  the  absolute  and  unqualified  owner 
of  the  property,  and  that  no  other  person 
had  any  interest  or  lien  thereon.  The  agent 
who  issued  such  insurance  policy  was  the 
cashier  of  the  bank.  The  policy  e.xpressly 
provided  that  it  should  be  void  if  any  oth- 
er person  than  Kennon  had  any  Interest  in 


Digitized  by  VjOOQ  l€ 


842 


122  NORTHWESTERN  REPORTER. 


(I<nr« 


the  property.  The  note  signed  by  Kennon 
iQ  September,  1903,  was  temporarily  nego- 
tiated as  collateral  to  a  bank  in  Chicago.  In 
the  negotiation  of  papers  for  collateral  it 
was  customary  for  the  banlc  to  Include  all 
securities  incident  to  the  paper  negotiated. 
No  security  was  suggested  or  sent  with  this 
note. '  These  are  the  substantial  drcumstan- 
ces  put  forward  by  the  defendant  as  tending 
to  disprove  the  claim  that  the  bank  had  any 
interest  in  the  instrument  or  property  cov- 
ered thereby.  It  is  difficult  to  determine  what 
significance  should  be  given  to  the  use  of 
the  word  "trustee"  after  the  name  of  the 
grantee.  It  is  contended  by  the  plaintiff 
that  this  indicates  that  La  Rue  was  not  act- 
ing in  his  personal  capacity.  As  against  this, 
it  is  shown  that  he  was  not  in  the  habit  of 
taking  securities  for  the  benefit  of  the  bank 
in  that  form,  and  that  if  he  did  so  at  this 
time,  it  was  the  only  instance  of  the  kind, 
with  possibly  one  exceptioq.  It  is  also 
shown  that  his  signature  as  surety  to  Ken- 
uon's  notes  to  the  bank  were  followed  by 
the  word  "trustee."  Manifestly  in  becoming 
surety  for  Kennon  on  his  note  due  the  bank 
he  could  not  be  acting  as  trustee  for  the 
bank.  It  Is  not  impossible  that  by  the  use 
of  the  word  "trustee"  he  only  Intended  to 
indicate  a  trust  as  between  him  and  the 
grantors. 

That  the  parties  to  the  instrument  put  the 
construction  upon  it  which  is  contended  for 
by  plaintiff  at  the  time  when  no  other  person 
was  interested  therein  furnishes  a  strong 
reason  why  that  view  should  be  adopted  now. 
The  writer  hereof  Inclines  to  the  view  that 
the  plaintiff  has  fairly  proved  his  case.  The 
majority  of  the  court,  however,  npon  a  con- 
sideration of  the  whole  record,  are  of  the 
opinion  that  the  disputed  question  Is  involved 
in  great  uncertainty,  and  that  the  plaintiff 
should  be  deemed  as  having  failed  in  his 
proof.  The  trial  court  reached  this  conclu- 
sion, and  its  decree  must  therefore  be  af- 
firmed. 


NICHOLS  V.  ROBERTS  et  al. 
(Supreme  Court  of  Iowa.    Oct.  22,  1909.) 

1.  Mechanics'  Liens  (8  277*)  — Pleading — 
Variance. 

An  answer,  in  an  action  to  establish  a  me- 
chanic's lien,  which  alleges  that  plaintiff  was 
required  to  give  a  guaranty,  with  surety  or  sure- 
ties to  the  satisfaction  of  the  owner,  is  sup- 
ported by  evidence  that  plaintiff  was  to  furnish 
a  guaranty  satisfactory  to  the  owner. 

[EJd.  Note.— For  other  coses,   see  Mechanics' 
Liena,  Cent.  Dig.  {  534;   Dee.  Dig.  {  277.*] 

2.  CoNTBACTs  (I  305*)— Building  CoNTRAcra 

— GOABANTT. 

An  HRreement  by  a  snbcon tractor,  constriict- 
ing  a  gravel  roof  on  a  bailding,  to  furnish  a 
guaranty  against  leakage  is  not  substantially 
performed  by  constructing  a  roof  to  which  no 


present  exception  Is  taken,  for  the  guaranty  may 
be  valuable. 

[EA.  Note.— For  other  cases,  see  Contracts, 
Cent.  Dig.  {  1469;  Dec  Dig.  8  805.*] 

3.  Mechanics'   Liens  ({  291*)— Judgment- 
Sufficiency. 

Where  defendant,  in  an  action  to  establish 
a  mechanic's  lien  for  constructing  a  gravel  roof 
on  a  building,  tendered  payment  into  court  of 
the  balance  due  for  the  use  of  plaintiff  on  his 
furnishing  a  guaranty,  according  to  his  contract, 
the  decree  should  exact  the  payment  of  such 
sum  to  and  retention  by  the  clerk,  to  be  paid 
over  to  the  plaintiff  on  furnishing  a  guaranty, 
or  on  there  being  no  breach  of  contract  at  the 
lapse  of  the  stipulated  period. 

[Ed.  Note.— For  other  cases,  see  Mechanics' 
Liens,  Dec.  Dig.  {  291.*] 

Appeal  from  District  Court,  Dallas  Coun- 
ty;   Edmund  Nichols,  Judge. 

Action  to  establish  a  mechanic's  lien.  The 
petition  was  dismissed,  and  plaintiff  appeals. 
Modified  and  affirmed. 

A.  L.  Steele,  for  appellant  Qlddlngs  ft 
Wlnegar,  for  appellees. 


LADD,  J.  The  plaintiff  was  doing  busi- 
ness In  the  name  of  Nichols  Roof  Company, 
and  in  October,  1907,  made  a  proposition  to 
A.  A.  Roberts  to  put  a  gravel  roof  on  a 
building  the  latter  was  erecting  for  Winner 
&  Williams  at  Perry,  Iowa.  The  bid  was  ac- 
cepted, and  the  roof  placed  according  to  the 
contract  The  price  agreed  upon  was  $275, 
and  there  was  an  extra  of  $4.50 ;  and  on  this 
$175 'has  been  paid.  The  specifications  in 
the  contract  for  the  erection  of  the  building 
required  Roberts  to  furnish  a  guaranty  to 
Winner  ft  Williams  which  should  be  satis- 
factory to  them,  and  the  defendants  alleged 
that  this  was  one  of  the  conditions  of  Rob- 
erts' contract  with  plaintiff,  while  plaintiff 
insisted  that  he  was  merely  to  furnish  a 
guaranty  that  the  roof  "is  hereby  guaranteed 
against  leakage  arising  from  ordinary  tear 
and  wear  for  seven  years  from  date,"  signed 
by  himself.  The  only  dispute  Is  concerning 
the  character  of  the  guaranty  to  be  given. 
Plaintiff  tendered  one  in  the  form  mention- 
ed, signed  by  "Nichols  Roof  Company,"  and 
this  was  objected  to  because  of  lack  of  re- 
sponsibility. The  district  court  found  that 
under  the  agreement  plaintiff  was  to  furnish 
a  guaranty  satisfactory  to  the  owners,  and 
this  is  amply  supported  by  the  evidence. 
Roberts  testified  that  when  the  bid  was  made 
he  Informed  plaintiff  that  a  guaranty  satis- 
factory to  the  owners  must  be  furnished,  and 
that  he  introduced  plaintiff  to  Winner,  to 
whom  this  statement  was  repeated.  His  tes- 
timony is  confirmed  by  that  of  Winner,  and 
the  acceptance  of  the  bid  two  weeks  later 
by  Roberts  undoubtedly  was  on  the  condl-- 
tions  previously  discussed,  and  this  must 
have  been  understood  by  the  plaintiff,  al- 
though he  testified  that  he  was  merely  to 
furnish  a  guaranty  in  the  form  mentioned, 
signed  by  himself.    The  appellee  argues  that 


*For  otticr  caaes  see  same  toplo  and  sactloii  NUMBER  In  Dec.  *  Am.  Dig*.  U07  to  data,  *  Reportar  Indans 


Digitized  by  VjOOQ  l€ 


Ndk) 


HIGGINS  T.  VANDEVEBB. 


843 


this  was  not  a  gnaninty  In  form,  but  no  ob- 
jection was  made  to  it  on  that  ground.  Ap- 
pelant urges  that,  as  the  answer  set  up  that 
the  guaranty  was  to  be  with  "surety,  or  sure- 
ties, all  to  the  satisfaction  of  the  owners," 
the  evidence  does  not  support  the  answer. 
Evidently  the  provision  of  the  statute  that 
no  more  need  be  proven  than  enough  to  es- 
tablish the  defense  was  overlooked  In  mak- 
ing this  contention.  Nor  can  It  be  said  that 
the  agreement  to  furnish  a  guaranty  was 
substantially  performed  by  constructing  a 
roof  to  which  no  present  exception  was  talc- 
«n.  For  all  that  appears  the  guaranty  may 
be  quite  as  valuable  as  the  roof  Itself,  and 
whether  it  Is  cannot  well  be  ascertained  prior 
to  the  end  of  the  stipulated  period. 

In  his  answer,  defendant  Roberts  tendered 
the  payment  of  the  balance  of  $104.50  Into 
court  for  the  use  of  plaintiff,  upon  the  fur- 
nishing by  plaintiff  of  the  guaranty  accord- 
ing to  his  contract,  and  the  appellant  com- 
plains of  the  decree  because  of  the  omission 
to  make  any  provision  with  reference  to  the 
sum  so  tendered.  The  only  response  to  this 
criticism  is  that  the  point  was  not  made  In 
the  district  court.  We  scarcely  see  how  the 
-question  could  have  been  touched,  as  It  was 
not  an  issue  In  the  trial,  and  could  not  ap- 
pear save  In  the  form  of  the  decree  entered. 
As  defendant  tendered  the  money  Into  the 
court,  there  Is  no  reason  for  not  exacting  its 
payment  to  and  retention  by  the  clerk,  to  be 
paid  over  to  the  plaintiff  upon  furnishing  a 
guaranty  such  as  had  been  agreed  to,  or,  if 
there  be  no  breach,  at  the  lapse  of  the  period 
stipulated.  With  this  modification,  the  de- 
cree will  be  affirmed,  with  the  costs  taxed  to 
plaintiff. 

Modified  and  affirmed. 


niGGINS  et  al.  v.  VANDEVEER  «t  al. 
(No.  15,760.) 

{Supreme  Court  of  Nebraska.     Sept.  25,  1909.) 

1.  CODBTS  (I  200%*)— COUNTT  COUBT— JURIS- 
DICTION. 

The  county  courts  of  thig  state  are  not  vest- 
ed with  authority  to  adjudicate  disputes  be- 
tween the  SDrriving  husband  of  a  testatrix  and 
her  devisees  concerning  his  right  to  an  estate 
by  the  curtesy  in  her  lands. 

[Ed.  Note. — For  other  cases,  see  Courts,  Cent 
Dig.  {  479;   Dec.  Dig.  §  200%.»] 

2.  CotJBTS    (8  20OV4*)— CO0NTT   COUBT— JUBIS- 
DICTION. 

The  county  court  does  have  jurisdiction  to 
enter  an  order  requiring  administrators  or  ex- 
ecutors appointed  by  it  to  deliver  to  a  surviving 
husband  lands  in  Nebraska,  which  came  to  their 
possession  as  such  officers,  where  the  only  dif- 
ference between  said  parties  is  one  of  law  aris- 
ing out  of  the  construction  of  a  will  that  has 
been  admitted  to  probate  by  said  court. 

[Ed.  Note.— For  other  cases,  see  Courts,  Dec. 
Dig.  I  200««.*] 


3.  Wilis  (8  421*)  —  JUDOMKNT  —  CONFOBIUTY 

TO  Pleadings  and  Issues— Action. 

A  district  court  on  appeal  from  an  order  of 
the  county  court  in  such  a  proceMing  has  like 
power  to  construe  a  will,  but  in  such  proceed- 
ings neither  court  has  jurisdiction  to  revoke  in 
part  the  probate  of  said  wili. 

[Ed.  Note.— For  other  cases,  see  Wills,  Dec. 
Dfg.  8  421.«J 

4.  COUBTS     (8     18*)— COUNTT    COTTBTB— JUBIB- 

DicTioN  OF  Subject-Matteb— Land. 

The  county  court  or  the  district  court  on 
appeal  in  such  proceedings  is  without  power  to 
decide  whether  the  husband  has  an  estate  by 
the  curtesy  in  land  situated  in  a  sister  state,  or 
to  direct  that  he  recover  possession  thereof,  and, 
if  it  attempts  to  do  so,  its  findings  and  judgment 
to  that  extent  are  void  and  of  no  effect. 

[Ed.  Note.— For  other  cases,  see  Courts,  Dec. 
Dig.  8  18.*] 

5.  Judgment  (5  303*)— Pabtiai.  Invaxjditt— 
Cancellation. 

If  a  court  spreads  upon  its  records  a  Judg- 
ment void  in  part  because  not  responsive  to  the 
pleadingSj  or  not  pertaining  to  subjects  within 
its  jurisdiction  a  party  agamst  whom  the  judg- 
ment is  directed  or  whose  property  rights  it  as- 
sumes to  influence  is  entitled  to  have  canceled 
and  expunged  from  the  records  of  the  court  so 
much  of  the  judgment  as  Is  void. 

[Ed.  Note. — For  other  cases,  see  Judgment, 
Cent.  Dig.  8  594 ;    Dec.  Dig.  8  303.*] 

6.  Courts  (8  116*)  —  Records  —  Illeoax.  En- 
TBiEs — Cancellation— Limitations. 

And  the  statute  of  limitations  does  not  pre- 
sent a  bar  to  the  right  and  power  of  the  court 
to  clear  is  records  of  unauthorized  and  illegal 
entries  therein. 

[Ed.  Note. — For  other  cases,  see  Courts,  Cent 
Dig.  8  372 ;   Dec  Dig.  8  116.*] 

7.  Equity  {|  195*)  — (^oss-Suit— Subject- 
Matter. 

In  an  equitable  action,  a  cross-suit  must  he 
{germane  to  toe  original  bill,  and  the  issues  thus 
mtroduced  are  limited  to  such  as  are  necessaify 
for  the  court  to  consider  in  deciding  the  ques- 
tions raised  in  the  original  suit  in  order  to  do 
complete  justice  to  all  parties  with  respect  to 
the  cause  of  action  on  which  plaintiff  demands 
relief. 

[Ed.  Note.— For  other  cases,  see  Equity,  Cent 
Dig.  8S  446-449 ;   Dec  Dig.  8  195.*] 

8.  EQumr  (8  195*)  — Cboss-Sott— Subject- 
Matter.  ♦ 

In  a  suit  to  vacate  certain  orders  made  by 
a  county  court  and  the  district  court  upon  ap- 
peal, construing  a  will  to  the  effect  that  a  sur- 
viving husband  is  entitled  to  an  estate  by  the 
curtesy  in  the  lands  of  his  deceased  testate  wife, 
and  revoking  in  part  the  will  and  its  probate, 
wherein  the  heirs  and  legal  representatives  of 
the  husband  who  departed  this  life  subsequent 
to  the  entry  of  the  judgment  attacked  and  a  gran- 
tee of  said  husband  are  made  defendants,  a 
cross-bill  filed  by  said  husband's  representatives 
charging  that  said  grantee  procured  his  deed 
from  the  deceased  husband  by  fraud  is  not  ger- 
mane to  the  bill,  and  will  be  stricken  from  the 
record  on  application  of  said  grantee. 

[Ed.  Note. — For  other  cases,  see  Equity,  Cent 
Dig.  18  446-449;  Dec  Dig.  8  185.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Nemaha  Coun- 
ty;   Raper,  Judge. 

Action  by  William  A.  Vandeveer,  adminis- 
trator with  the  will  annexed  of  the  estate 
of  Eliza  M.  Vandeveer,  deceased,  and  others, 
against  Daniel   Higgins  and  others.     Judg- 


-•For  other  cacea  sea  sam*  toplo  and  lectloa  NUMBER  la  Dec.  *  Am.  Digi.  1807  to  data,  *  Raportar  Indaxaa 


Digitized  by 


Google 


844 


122  NORTHWESTERN  REPORTER. 


(Keb. 


ment  for  plaintiffs,  and  defendants  appeal. 
Reversed,  with  Instructions. 
See,  aUo,  59  Neb.  338,  80  N.  W.  lOiS. 

E.  B.  Quackenbosh,  J.  H.  Broady,  and  O. 
W.  Cornell,  for  appellants.  H.  A.  Lambert 
and  E.   Ferneau,  for  appellees. 

ROOT,  J.  In  18»1  Eliza  M.  Klmberly,  a 
childless  widow,  married  .Absolom  Vande- 
veer,  and  continued  in  said  wedlock  until 
February  6,  1S95,  upon  which  day  she  died 
testate  and  childless,  a  resident  of  Nemaha 
county,  Neb.,  the  owner  of  real  estate,  a 
part  whereof  is  in  Nebraska  and  a  fraction 
thereof  in  South  Dakota.  Mrs.  Vandeveer 
acquired  her  real  estate  and  made  her  will 
before  said  marriage.  On  the  petition  of 
the  executor,  the  will  was  admitted  to  pro- 
bate in  the  county  court  of  Nemaha  county 
in  March,  1895.  July  15,  1895,  Absolom  Van- 
I  deveer,  who  survived  the  testatrix,  filed  a 
petition  in  said  court  wherein  be  stated  his 
relation  to  the  deceased,  her  seisin  and  death 
without  issue,  asserted  that  he  was  tenant 
by  the  curtesy  of  her  lands,  and  prayed  "that 
he  may  recover  and  bold  said  premises  dur- 
ing his  natural  life  as  tenant  by  curtesy, 
and  for  such  other  and  further  relief  as 
equity  may  require."  The  administrators 
with  the  will  annexed  and  the  beneficiaries 
named  in  the  will  all  appeared  by  counsel, 
and  separately  answered  that  the  land  re- 
ferred to  was  the  sole  property  of  the  de- 
ceased and  had  been  disi)osed  of  by  her 
last  will  and  testament  which  bad  been  duly 
probated  and  never  revoked  or  canceled.  In 
reply  the  petitioner  admitted  that  the  land 
was  the  separate  property  of  his  late  wife, 
that  she  received  none  of  it' from  him,  and 
denied  the  other  allegations  in  the  answer. 
By  the  consideration  of  the  county  court 
Absolom  Vandeveer  was  defeated. 

In  the  district  court  upon  the  Identical 
Issues  presented  in  the  county  court,  a  mo- 
tion by  defendant  for  Judgment  on  the  plead- 
ings was  sustained  and  Vandeveer's  petition 
dismissed.  On  appeal,  December  6,  1899, 
we  reversed  the  Judgment  of  the  district 
court  Vandeveer  v.  Higgius,  59  Neb.  333,  80 
N.  W.  1013.  The  estate  of  Mrs.  Vandeveer 
has  not  been  settled,  but  is  stUl  under  the 
control  of  the  administrators.  All  of  said 
devisees  and  legatees  are  nonresidents  of 
Nebraska.  Subsequently,  the  exact  date  not 
being  shown  by  the  evidence,  but  evidently 
in  January,  1900,  the  representatives  of  the 
estate  acquiesced  in  the  claim  of  the  sur- 
viving husband,  paid  him  the  accumulated 
rents  for  the  Nebraska  real  estate,  and  sur- 
rendered possession  thereof  to  him.  Van- 
deveer reftained  such  possession  and  enjoyed 
the  rents  and  profits  until  his  death,  which 
preceded  the  commencement  of  this  action. 
The  mandate  of  this  court  was  filed  with 
the  clerk  of  the  district  court  in  October, 
1902.  During  the  December,  1902,  term  of 
said  court,  on  the  8th  day  of  that  month, 


a  Judgment  was  entel«d  In  the  Journals  va- 
cating the  Judgment  appealed  from,  and  de- 
creeing generally  that  Vandeveer  was  en- 
titled to  the  estates  of  curtesy  and  home- 
stead In  the  lands  of  his  deceased  wife.  On 
the  3d  day  of  January,  1903,  during  the  same 
term  of  court,  another  Judgment  was  ren- 
dered upon  said  mandate,  and  entered  In 
said  Journal,  again  vacating  the  Judgment 
appealed  from,  and  finding  specifically  that 
the  marriage  of  the  testatrix  revoked  her 
will  so  far  as  it  interposed  any  obstacle  to 
her  surviving  husband's  estate  of  curtesy, 
and  adjudged  that  to  that  extent  said  will 
and  the  probate  thereof  be  revoked  and  held 
for  naught ;  that  Mrs.  Vandeveer  died  with- 
out issue  and  seised  in  fee  simple  of  spe- 
cifleally  described  tracts  of  real  estate  in 
Nebraska  and  South  Dakota;  that  the  pe- 
titioner was  testatrix's  surviving  husband, 
and,  further,  directed  that  a  transcript  of 
said  findings  and  Judgment  be  certified  to 
the  county  court  to  the  end  that  said  Judg- 
ment might  be  carried  into  execution.  In  the 
meantime,  in  September,  1902,  the  defendant 
Cornell,  who  was  then  a  practicing  attorney 
at  law  residing  in  Auburn  and  counsel  for 
Absolom  Vandeveer,  procured  from  bis  client 
a  deed  for  the  South  Dakota  lands.  July 
18,  1904,  the  county  court  acted  upon  said 
transcript,  and  modified  Its  Judgment  so 
"that  the  said  will  of  Eliza  M.  Vandeveer 
is  revoked  to  the  extent  of  the  interest  of 
the  plaintiff,  and  that  the  said  will  and  the 
probate  thereof  is  void  as  to  the  plaintiff 
(Absolom  Vandeveer)  In  so  far  as  It  would 
affect  his  said  right,  title,  and  interest  in 
and  to  the  real  estate  therein  devised  and 
in  said  transcript  Judgment  of  the  district 
court  particularly  described,  the  same  as  If 
the  said  Eliza  M.  Vandeveer  had  died  Intes- 
tate." 

This  action  -was  commenced  October  10, 
1907,  by  the  administrators  with  the  will 
annexed  of  the  estate  of  the  testatrix,  and 
her  devisees  against  the  said  Cornell  and  the 
heirs  of  Absolom  Vandeveer,  deceased.  It  is 
alleged  that  the  decree  rendered  January  3, 
1903,  was  procured  fraudulently  and  is  void, 
being  controlled  by  the  Judgment  rendered  in 
December,  1902;  that  the  county  court  did 
not  have  Jurisdiction  o<ver  the  subject-mat- 
ter involved  in  the  proceedings  before  it  up- 
on Vandeveer's  application,  and  that  all  or- 
ders made  therein,  and  the  subsequent  Judg- 
ments of  the  district  court  and  of  this  court 
on  appeal,  are  also  absolutely  null  and 
void ;  that,  by  reason  of  the  premises,  the 
title  of  the  beneficiaries  in  the  will  to  the 
South  Dakota  land  is  clouded,  and  their 
progress  to  recover  their  rights  therein  im- 
peded. Plaintiffs  pray  that  all  of  said  orders 
and  proceedings  be  canceled  as  null  and  void, 
and  for  equitable  relief.  The  defendant  Cor- 
nell practically  enters  a  general  denial  cou- 
pled with  a  plea  of  the  statute  of  limita- 
tions. His  codefendanta  filed  a  like  plead- 
ing, and  as  a  cross-petition  against  said  Oor- 


Digitized  by  VjOOQ  IC 


Neb.) 


HIQQINS  V.  VANDEVEER. 


845 


oell  alleged  that  he  procured  the  deed  from 
Vandeveer  for  the  South  Dakota  lands  by 
fraud  and  deceit,  and  prayed  that  the  peti- 
tion be  dismissed,  that  said  deed  be  can- 
celed, and  Cornell  decreed  to  reconvey  said 
lands  to  them,  or  that  they  recover  from  him 
$6,000,  the  alleged  value  thereof.  On  Cor- 
nell's motion  the  cross-petitions  were  dis- 
missed without  prejudice  to  another  action 
and  replies  were  duly  filed.  On  a  considera- 
tion of  all  of  the  evidence,  the  court  found  for 
plaintiffs,  except  on  the  charge  that  the  de- 
cree rendered  January  8,  1903,  by  the  district 
court  was  procured  fraudulently,  and  can- 
celed ^nd  held  for  naught  its  Judgments  in 
the  case  of  Vandeveer  against  the  represcn- 
tatlvee  of  Eliza  M.  Vandeveer,  deceased.  All 
of  the  defendants  appeal,  and  the  representa- 
tives of  Absolom  Vandeveer  appeal  from  the 
order  of  the  district  court  dismissing  their 
cross-petitions. 

1.  Plaintiffs  argue  that  the  county  court  is 
without  Jurisdiction  to  assign  an  estate  by 
the  curtesy ;  that  the  Judgment,  in  so  far  as  it 
revoked  the  will  and  the  probate  thereof,  did 
not  respond  to  any  allegation  in  Vandeveer's 
petition;  and  that  the  several  Judgments  and 
orders  are  void  so  far  as  the  Dakota  land  is 
concerned.  The  tenant  by  curtesy  consum- 
mate has  the  right  of  possession  during  his 
natural  life  and  may  maintain  ejectment 
therefor.  Moore  v.  Ivers,  83  Mo.  29.  Coun- 
sel for  defendant  argue  that  an  estate  by  the 
curtesy  is  analogous  to  dower,  and,  as  the 
county  court  has  Jurisdiction  where  there  Is 
no  issue  of  fact  to  determine  to  set  off  and 
assign  the  last  named  estate,  good  logic. dic- 
tates that  we  should  hold  the  same  power  to 
exist  under  like  circumstances  in  that  tri- 
bunal for  the  recovery  of  the  other  interest; 
that  in  either  event  the  county  court  will  be 
taking  a  necessary  step  in  the  settlement  of 
an  estate,  a  field  wherein  It  has  exclusive 
original  Jurisdiction.  In  Swobe  v.  Marsh,  73 
Neb.  331,  334,  102  N.  W.  019,  it  is  clearly 
demonstrated  that  the  assignment  of  dower 
does  not  pertain  to  the  settlement  of  the  es- 
tates of  deceased  persons,  and  that  the  coun- 
ty court's  Jurisdiction  of  the  subject  arises 
solely  by  virtue  of  section  8,  c.  23  (section 
2831)  Comp.  St.  1907.  No  mention  is  made  In 
that  statute  of  the  estate  of  curtesy,  nor  has 
the  Legislature  by  any  ather  act  vested  the 
county  court,  as  far  as  might  be  done  under 
the  Constitution,  with  power  to  set  off  or  as- 
sign estates  by  the  curtesy,  a  fact  that  clear- 
ly indicates  the  legislative  will  not  to  extend 
the  widow's  remedy  to  the  surviving  hus- 
band. Wilson  V.  Beyers,  5  Wash.  303.  32  Pac. 
90,  34  Am.  St  Rep.  858.  It  does  not  follow, 
however,  that  the  Judgments  referred  to  here- 
in are  void. 

The  Nebraska  land  was  In  the  possession 
of  the  administrators  as  otflccrs  of  the  coun- 
ty court.  Vandeveer's  claim  required  a  con- 
struction of  the  win  in  the  light  of  the  facts 
alleged  and  admitted,  and  a  decision  as  to 
whether  the  life  estate  asserted  by  the  sur- 


viving husband  In  the  Nebraska  land  devolv- 
ed by  virtue  of  the  statutes  or  was  cast  by 
the  will;  and,  for  the  purpose  of  advising  the 
executors  of  their  duty  In  the  premises  If 
they  preferred  to  submit  the  question  of  pos- 
session to  that  forum,  the  county  court  had 
ample  Jurisdiction.  Andersen  v.  Andersen,  69 
Neb.  505,  96  N.  W.  276;  Lipplncotfs  Appeal, 
in  Dundas'  Estate,  73  Pa.  474;  Otterson  v. 
Gallagher,  88  Pa.  855.  Whether  there  was 
Jurisdiction  of  the  subject-matter  so  far  as 
the  devisees  and  legatees  are  concerned  is 
immaterial.  The  estate  has  not  been  closed 
at  this  late  day.  The  possession  of  the  land 
and  the  disposition  of  the  rents  and  profits 
therefrom  were  proper  subjects  for  the  court's 
consideration  in  view  of  the  fact  that  the  ad- 
ministrators had  that  possession  and  collect- 
ed the  rents  by  virtue  of  their  ofllce.  The 
devisees  did  not  in  any  manner  question  the 
courts'  Jurisdiction  over  the  subject-matter  of 
the  litigation,  and  it  was  not  Incumbent  up- 
on the  Judges  of  the  respective  courts  to 
doubt  a  Jurisdiction  invoked  by  all  of  the  par- 
ties in  the  case.  The  subject  of  the  litigation 
was  well  understood  in  the  district  court  and 
by  ourselves.  Two  questions  only  were  pre- 
sented, 1.  e.:  (1)  Could  a  married  woman  by 
will  cut  off  her  surviving  husband's  estate  of 
curtesy  In  lands  of  which  she  might  die  seis- 
ed? (2)  Would  a  marriage  subsequent  to  the 
making  of  a  will  by  a  single  woman  revoke 
that  instrument  entirely  or  at  all? '  We  de- 
clined to  consider  the  first  query,  and  answer- 
ed the  second  one.  Speaking  through  the 
then  Chief  Justice,  we  held  that  by  virtue  of 
the  marriage  the  will  was  rendered  void  so 
far  as  the  surviving  husband's  estate  by  the 
curtesy  was  concerned,  and  reversed  the  Judg- 
ment of  the  district  court  for  further  pro- 
ceedings in  harmony  with  our  opinion.  Coun- 
sel did  not  in  their  written  or  oral  arguments 
discuss  the  revocation  of  the  probate  of  the 
will,  and  we  did  not  consider  that  question, 
nor  do  we  understand  that  the  pleadings  pre- 
sented any  such  issue  of  law  or  of  fact.  The 
will  had  been  duly  probated,  after  due  notice 
to  'ail  concerned  as  the  record  recites,  a  state- 
ment binding  on  the  entire  world  until  over- 
come by  proof  to  the  contrary,  and  none  such 
was  Introduced  In  evidence  in  this  case.  The 
probate  court  was  without  Jurisdiction  in  ad- 
mitting the  will  to  probate  to  construe  its  le- 
gal effect.  The  inquiry  was  confined  to  ascer- 
taining whether  the  testatrix  signed  the  prof- 
fered Instrument,  and,  if  so,  whether  she 
was  at  that  time  of  full  age  and  sound  mind, 
and  whether  the  document  was  signed  and 
attested  In  conformity  with  the  law  of  wills. 
Further  than  that,  it  could-  not  proceed  at 
that  time.  Lusk  v.  Lewis,  32  Mtss.  207; 
Hawes  v.  Humphrey,  9  Pick.  (Mass.)  3r>0,  20 
Am.  Dec.  481;  Cox  v.  Cox,  101  Mo.  168,  13 
S.  W.  lOoo;  Bent's  Appeal,  35  Conn.  523; 
Waters  v.  Cullen,  2  Bradf.  Sur."  (N.  Y.)  354; 
Murphy's  Estate,  104  Cal.  554.  38  Pac.  543; 
Graham  v.  Burch.  47  Minn.  171.  176.  .40  N 
W.  G97,  28  Am.  St  Rep.  339;  Evaus  v.  An- 


Digitized  by 


Google 


846 


122  NORTHWESTERN  REPORTER. 


<Neb. 


derson  et  al.,  15  Ohio  St  324;  Hegarty's  Ap- 
peal, 75  Pa.  603;  In  re  Craft's  Estate  and 
Appeal  of  Martin,  164  Pa.  520,  30  Atl.  493. 
For  much  stronger  reasons  in  bearing  an  ap- 
plication which  called  only  for  a  construc- 
tion of  the  will  for  the  benefit  of  the  execu- 
tors, the  court  did  not  hare  power  to  revoke 
the  probate  of  that  instrument  As  we  under- 
stand the  record,  the  administrators  l^  Ne- 
braska did  not  have  possession  of  the  Dakota 
land,  bat  Mrs.  Vandeveer's  will  was  admit- 
ted to  probate  as  a  foreign  will  and  ancillary 
administration  of  the  estate  Is  pending  In 
the  proper  court  of  that  state.  The  laws  of 
South  Dakota  control  the  descent  alienation, 
and  transfer  of  land  within  the  boundaries 
of  that  commonwealth  and  the  effect  and 
construction  of  instruments  intended  to  con- 
vey it  The  probate  courts  of  Nebraska  are 
not  authorized  to  adjudicate  the  rights  of 
rival  claimants  to  the  succession  of  real  es- 
tate situated  in  a  sister  state,  and  so  much 
of  the  Judgment  of  the  county  court  of  Ne- 
maha county  and  that  of  the  district  court 
on  appeal  as  purports  to  adjudicate  that  the 
surviving  husband  is  entitled  to  an  estate  by 
the  curtesy,  or  any  other  estate,  In  the  South 
Dakota  lands,  is  an  absolute  nullity.  Fall  v. 
Fall.  75  Neb.  120,  10«  N.  W.  412,  113  N.  W. 
175;  Rober  y.  MIchelsen  (Neb.)  116  N.  W. 
949;  McCormick  v.  Sulllvant  10  Wheat  192, 
201,  6  X.  Ed.  300;  United  States  v.  Fox,  94 
U.  S.  315,  320,  24  U  Ed.  192;  Brine  v.  In- 
surance Company,  96  U.  S.  C27,  635,  24  I<. 
Ed.  85a 

The  litigants  have  introduced  in  evidence 
sections  of  the  South  Dakota  statute  which 
provide  that  a  will  executed  by  an  unmar- 
ried woman  is  revoked  by  her  subsequent 
marriage;  that  the  estates  of  dower  and  cur- 
tesy are  abolished;  that  if  a  deceased  wife 
leaves  no  issue,  one-half  of  her  real  estate 
descends  to  her  surviving  husband ;  and  that 
foreign  wills  may  be  probated  in  that  state 
and  recognizing  a  foreign  probate  thereof. 
Just  what  application  the  courts  of  South 
Dakota  will  make  of  the  law  of  that  state, 
statutory  or  otherwise,  to  the  facts  relating 
to  the  estate  and  will  of  the  late  Mrs.  Vande- 
veer,  we  do  not  know,  but  we  feel  certain 
that  complete  Justice  will  be  done  in  the 
premises,  and,  if  It  were  otherwise,  the  Judg- 
ments of  the  courts  of  this  state  would  not 
mend  matters.  So  much  of  the  Judgment  as 
purports  to  revoke  In  part  the  probate  of 
the  will  and  decree  that  Absolom  Vandeveer 
was  seised  of  an  estate  by  the  curtesy  in  the 
Dakota  land  Is  extrajudicial  and  void;  but 
as  the  remainder  of  the  Judgment  does  not 
depend  upon  the  Illegal  part,  the  valid  frac- 
tion may  be  sustained  and  the  remainder  re- 
jected. The  Invalid  part  could  be  safely  Ig- 
nored by  the  individuals  against  whose  in- 
terests it  purports  to  operate.  State  v.  Ev- 
ans. 176  Mo.  310,  325,  75  S.  W.  914.     Upon 


appeal  the  Judgment  would  have  been  cor- 
rected. Jarmlne  v.  Swanson  (Neb.)  120  N. 
W.  437.  The  litigants  may  ignore  the  In- 
valid part  of  a  Judgment  or  attack  it  by 
direct  proceedings  or  collaterally.  Jarmlne 
V.  Swanson,  supra ;  Banking  House  of  A. 
Castetter  v.  Dukes,  70  Neb.  648,  and  au- 
thorities cited,  page  652  et  seq.  of  the  Report, 
97  N.  W.  805,  807.  So  much  of  the  Judg- 
ment as  Is  Invalid  should  be  vacated,  and 
not  permitted  to  Incumber  the  record.  Hayes- 
County  V.  Wileman  (Neb.)  118  N.  W.  478. 
And  the  statute  of  limitations  presents  no- 
obstacle  to  an  action  or  proi>er  proceedlug» 
having  that  end  In  view.  National  iBank  v. 
Dry  Goods  Cki.,  45  Kan.  510,  28  Pac:  56. 

It  Is  not  necessary  to  consider  the  lack  of 
Jurisdiction  of  the  county  court  to  assign 
Absolom  Vandeveer  an  estate  by  the  cur- 
tesy In  the  Nebraska  lands,  over  the  opposi- 
tion of  the  devisees  named  In  Mrs.  Vande- 
veer's  will,  because  their  right  of  possession 
of  the  real  estate  has  never  been  Invaded  by 
virtue  of  the  order  complained  of,  and  they 
have  Joined  with  the  administrators  in  a 
Joint  petition  against  the  representatives  of 
Absolom  Vandeveer  for  relief  which  cannot 
be  given  to  the  extent  of  the  demand  made 
by  the  administrators.  In  short  all  that  was 
settled  by  the  strenuous  litigation  between 
Absolom  Vandeveer  on  the  one  part  and  the 
administrators  of  the  estate,  and  the  devisees 
under  the  will  of  Mrs.  Vandeveer  on  the 
other,  is  that  as  between  him  and  those  ad- 
ministrators he  was  entitled  during  his  nat- 
ural life  to  the  possession  and  rents  and 
profits  of  the  land  In  Nebraska  of  which  she 
died  seised. 

2.  The  cross-petitions  of  the  representa- 
tives of  Absolom  Vandeveer  must  be  denied. 
Their  complaint  is  not  germane  to  the  caose 
of  action  set  forth  in  plalutlfTs  petition,  and 
the  defendant  Cornell  cannot,  over  his  objec- 
tions, be  compelled  In  this  action  to  litigate 
the  charges  therein  made  against  him.  Arm- 
strong V,  Mayer,  69  Neb.  187,  198,  95  N. 
W.  61. 

The  Judgment  of  the  district  court  is  there- 
fore reversed,  with  instructions  to  enter  a 
decree  in  harmony  with  this  opinion. 

• 
REESE,  0.  J.,  absent  and  not  sitting. 


CAVETT  V.  GRAHAM.    (No.  15,Ma) 

(Supreme  Court  of  Nebraska.     Oct  0,  1909.) 

Landlobd  and  Tenant  ({  219*)— Actions  >ob 
Rent— Right  of  Action. 

"In  order  to  maintain  an  action  to  re- 
cover for  rent  due,  the  relation  of  landlord  and 
tenant  must  have  existed  between  the  parties, 
either  by  express  agreement  or  by  imnlicatioii?' 
Janoucb  v.  Pence,  3  Neb.  (Unof.)  867,  93  N. 


•For  otber  caae>  *e«  ume  toplo  and  lectlon  NUMBER  In  Dae.  *  Am.  Digs.  IMT  to  date,  *  Reportar  tndaxM 


Digitized  by  VjOOQ  l€ 


Neb.) 


CAVBTT  T.  GRAHAM. 


847 


W.  217.    Sm,  also,  Skinner  v.  Skinner,  88  Neb. 
7S6,  67  N.  W.  534. 

[Ed.  Note.— For  other  cases,  see  Landlord  and 
Tenant,  Cent.  Dig.  f  871 ;    Dec  Dig.  S  219.*] 

(Syllabas  by  the  Coart.) 

Appeal  from  District  Court,  Custer  Coun- 
ty;  Hostetler,  Judge. 

Action  by  Tliomas  W.  Cavett  against  H. 
M.  Graham,  first  and  full  name  unknown, 
but  believed  to  be  Harvey  M.  Graham.  Judg- 
ment for  plaintiff,  and  defendant  appeals. 
Reversed  and  remanded. 

J.  R.  Dean,  C.  L.  Gutterson,  and  Halner  & 
Smitb,  for  appellant  N.  T.  Gadd,  for  appel- 
lee. 

REESB,  C.  J.  This  action  was  Instituted 
in  the  district  court  for  the  purpose  of  col- 
lecting rental  or  damages  for  tbe  use  and  oc- 
cupation of  the  N.  ^  and  the  S.  E.  %  of 
section  86,  township  18  N.,  of  range  25,  in 
Caster  county.  It  is  alleged  in  the  petition, 
In  substance,  that  plaintiff's  right  to  recover 
is  based  upon  certain  leasehold  interests  con- 
ferred by  the  state  in  leasing  the  land  to 
plalntifTs  assignor.  The  answer.  In  addition 
to  a  general  denial,  alleges  that  tbe  defend- 
ant has  been  in  possession  of  the  land  for 
more  than  21  years  prior  to  the  filing  of  the 
answer,  a!id  that  he  came  into  such  posses- 
sion by  virtue  of  a  lease  made  by  the  state 
to  one  Iioomls,  and  which  lease  was  assign- 
ed to  defendant  in  the  year  1884-85,  and 
therefore  he  took  possession  thereunder  and 
has  held  the  uninterrupted  possession  ever 
since,  residing  thereon.  It  is  stated  that  one 
I.  C.  Clark  and  plaintiff  had  an  assignment 
of  a  lease  made  to  them  by  one  G.  M.  Flock, 
a  lessee  under  a  lease  made  subsequent  to 
the  one  under  which  he  took  possession ;  that 
the  assignment  was  made  to  them  jointly ; 
that  on  or  about  August  25,  1902,  Clark  and 
plaintiff,  for  a  valuable  consideration,  assign- 
ed their  Interest  therein  to  defendant,  and 
that  defendant  has  since  said  assignment 
paid  to  the  state  all  rentals  as  they  matui-ed. 
The  statute  of  limitations  Is  also  presented 
as  a  defense.  The  reply  is  a  general  denial. 
The  cause  was  tried  to  the  court  without  the 
intervention  of  a  Jury,  the  trial  resulting  in 
a  finding  and  Judgment  in  favor  of  plaintiff, 
and  from  which  defendant  appeals. 

The  evidence  introduced  upon  the  trial  Is 
meager  in  some  respects,  owing  to  the  fact 
that  much  of  the  written  portion  thereof 
has  been  lost.  Enough  is  shown  to  establish 
the  fact  that  during  the  time  in  which  de- 
fendant occupied  the  land  under  the  leases 
assigned  to  him  he  failed  to  pay  some  of  the 
rentals  as  they  became  due;  that  the  state 
released  to  plalntifTs  assignor;  that  the 
assignment  to  plaintiff  was  made  to  "I  G. 
Clark  and  Thomas  W.  Cavett";  that  Clark 
made  the  assignment  to  defendant ;  that  de- 
fendant paid  part  of  the  purchase  price  in 


cash,  and  gave  his  promissory  note  payable 
to  I.  C.  Clark  and  Thomas  W.  Cavett  for 
tbe  remainder ;  and  that  tbe  note  was  in- 
dorsed by  both,  and  delivered  to  a  bank 
where  it  was  paid  by  defendant.  The  as- 
signed lease  was  delivered  to  defendant  by 
Clark,  and  It  has  not  since  that  time  (August 
25,  1902)  been  in  plalntifTs  possession.  Plain- 
tiff testified  that  he  sent  about  $10  to  Mr. 
Clark  to  pay  his  half  of  the  rental  due  up 
to  tbe  time  Clark  made  the  transfer.  While 
his  testimony  Is  indefinite.  It  may  be  that 
he  assisted  in  paying  the  taxes  due  at  that 
time.  However,  we  think  It  Is  reasonably 
clear  that  he  sent  only  the  $10  referred  to 
above.  There  seems  to  have  been  no  objec- 
tion made  by  plaintiff  to  the  d{?livery  of  the 
leases  to  defendant  by  Clark  and  the  reten- 
tion thereof  by  defendant,  which  with  the 
unexplained  indorsement  of  the  note  by  plain- 
tiff is  quite  persuasive  that  he  must  have 
known  of  the  assignment  by  Clark,  and  that 
the  purchase  price  was  for  the  whole  inter- 
est However,  that  may  not  be  decisive,  as 
plaintiff  testified,  in  opposition  to  both  de- 
fendant and  his  wife,  that  be  bad  never 
Informed  defeiid;int  that  Clark  had  authori- 
ty to  sell  his  interest.  He  also  testified 
that  Clark  had  no  such  authority.  It  was 
shown  by  his  testimony  that  Clark  re- 
sides In  this  state,  but  no  effort  appears  to 
have  been  made  to  secure  his  evidence.  It 
is  very  clear  that  plaintiff  knew  of  the  as- 
signment by  Clark,  of  the  delivery  of  the 
leases  by  him  to  defendant,  and  of  the  de- 
fendant's possession  of  the  property  during 
the  whole  time,  claiming  the  exclusive  right 
thereto. 

There  Is  no  proof  that  any  contractual  re- 
lation ever  existed  between  plaintiff  and  de- 
fendant as  to  defendant's  occupancy  of  the 
land,  or  that  the  relation  of  landlord  and 
tenant  was  ever  created,  either  by  express 
or  implied  agreement,  but  that  during  the 
whole  time  of  defendant's  possession  he 
held  and  claimed  the  same  as  the  owner  of 
the  leasehold  estate.  Plaintiff  never  was  In 
either  the  actual  or  constructive  possession 
of  the  property.  We  fully  agree  with  coun- 
sel for  plaintiff  that,  in  order  to  permit  a 
recovery  for  use  and  occupation,  the  relation 
of  landlord  and  tenant  may  be  implied  from 
the  circumstances  and  conduct  of  the  parties, 
but  think  that  there  must  be  something  in 
the  way  of  agreement  or  action  from  which 
that  Implication  may  arise.  We  have  search- 
ed the  record  in  vain  for  proof  of  any  cir- 
cumstance or  action  which  can  by  any  sys- 
tem of  reasoning  sustain  such  a  relation,  or 
a  presumption  that  it  existed.  It  appears 
to  be  the  well-settled  law  of  this  country 
that,  in  the  absence  of  the  existence  of  that 
relation,  or  that  the  occupant  was  a  dis- 
seizor without  right,  the  action  for  use  and 
occupation  cannot  be  maintained.  Defendant 
was  never  at  any  time  wrongfully  In  posses- 


•For  other  caacs  ■••  tarn*  topic  and  tectlon  NUMBER  In  Dec.  t  Am.  Digs.  1907  to  data,  *  Reporter  Indexes 


Digitized  by 


L-oogle 


848 


122  NORTHWESTERN  REPORTER. 


(Xetn 


■ion.  Even  If  plalntUfa  tbeory  as  to  his 
continued  ownership  of  the  one  undivided 
half  interest  in  the  property  be  correct,  yet 
defendant's  possession  was  not  wrongful. 
At  the  time  of  the  transfer  and  delivery  of 
the  leases  by  Clark  he  was  in  possession  as 
owner,  claiming  the  exclusive  right  under 
the  lease  from  the  state  which  he  held,  not- 
withstanding it  may  not  have  been  In  force. 
He  continued  in  possession  after  the  transfer 
under  the  same  claim  of  right,  to  the  ex- 
clusion of  all  others.  There  Is  not  shown 
to  have  been  at  any  time  any  kind  of  recog- 
nition of  acknowledgment  of  any  right  of 
plalntiflT  In  or  to  the  property.  Under  these 
circumstances,  it  would  seem  that  the  action 
for  rent  or  use  and  occupation  could  not  be 
successfully  maintained  without  the  prior 
establishment  of  plaintiff's  right  to  an  ac- 
counting for  mesne  profits.  This  doctrine  is 
recognized  in  Phillips  v.  Reynolds,  79  Neb. 
C26,  113  N.  W.  234,  where  a  recovery  was 
permitted  on  the  ground  that  there  was  a 
contract  of  lease,  but  under  a  law  of  Con- 
gress the  lease  was  void  becouse  not  sanc- 
tioned or  approved  by  the  officers  of  the  In- 
terior Department.  See,  also.  Skinner  ▼. 
Skinner,  38  Neb.  756,  57  N.  W.  534 ;  Jaoouch 
V.  Pence,  3  Neb.  (Unof.)  807,  03  N.  W.  217. 
The  cases  upon  this  point  are  pretty  thor- 
oughly collated  in  12  Enc.  PI.  &  Pr.  844  et 
seq.,  and  It  must  be  deemed  sufficient  to 
refer  thereto.  It  is  true  that  many  of  the 
cases  there  cited  were  decided  in  states 
where  the  common  law  rules  of  procedure 
were  In  force,  but  It  Is  equally  true  that  the 
rule  is  recognized  in  states  not  governed  by 
those  rules. 

The  Judgment  of  the  district  court  is  re- 
versed, and  the  cause  remanded  for  further 
proceedings  in  accordance  with  law. 

Reversed  and  remanded. 

DEAN,  J.,  having  been  of  counsel  in  tbe 
trial  court,  did  not  sit,  and  took  no  part  In 
this  decision. 


PENNINGTON  COUNTY  BANK  v. 

BAUMAN,  Sheriff. 

DODGE    COUNTY    BANK    v.    McGIVERIN. 

(No.   10,237.) 
(Supreme  Court  of  Nebraska.     Oct.  9,   1909.) 

1.  Judgment    (8    748*)— Res    Judicata— Re- 
plevin. 

A  judginent  in  replevin  determines  the 
right  of  possession  at  the  time  of  the  com- 
menceineDt  of  the  action,  and  it  is  not  incon- 
sistent with  the  right  of  the  party  defeated  to 
afterwards  assert  a  right  of  possession  under 
changed    conditions. 

[Ed.    Note.— For  other  cases,   see   Judgment, 
Cent.  Dig.  §§  10G3.  1200 ;   Dec.  Dig.  f  74S.»] 

2.  JUDOMENT    (8    590*)— Res    Judicata— Re- 
plevin. 

In  an  action  of  replevin,  where  judgment  is 
rendered  in  favor  of  the  defendant  solely  upon 


the  ground  that  plaintitTs  petition  docs  not 
state  a  cause  of  action,  such  judgment  is  not 
a  bar  to  a  subsequent  proceeding  by  the  plain- 
tiff therein  to  establish  his  right  of  property  ot 
right  of  possession,  or  to  establish  any  lien  he 
may  have  upon  the  property  in  controversy. 

[Ed.  Note. — For  other  cases,  see  Judgment, 
Cent.  Dig.  8  1063;    Dec.  Dig.  {  590.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Dodge  Coun- 
ty;   Hollenbeck,  Judge. 

Action  by  the  Dodge  County  Bank  against 
Francla  McGiverIn,  the  Pennington  County 
Bank  Intervening,  and  by  tbe  Pennington 
Ck>unty  Bank  against  Anton  Bauman,  Jr. 
Actions  consolidated,  and  Judgment  for  tbe 
Dodge  County  Bank,  and  the  Pennington 
County  Bank  appeals.  Reversed  and  re- 
manded. 

P.  Dolezal,  for  appellant  Courtrlght  & 
Sidner,  for  appellees. 

FAWCETT,  J.  For  a  statement  of  the  trans- 
actions leading  up  to  the  present  action  ref- 
erence is  made  to  Pennington  County  Bank 
V.  Bauman,  81  Neb.  782,  116  N.  W.  669.  Sub- 
sequent to  the  affirmance  of  that  case  in  this 
court  plaintiff  Dodge  County  Bank  brought 
this  action  upon  the  replevin  bond  given  by 
defendant  Pennington  County  pank  and 
Francis  McGiverin,  Its  surety  thereon,  and 
by  agreement  of  parties  the  two  actions  were 
consolidated  and  trial  had  in  the  district 
court  of  Dodge  county.  The  trial  resulted 
in  judgment  for  plaintiff  Dodge  County  Bank, 
and  defendant  Pennington  County  Bank  ap- 
pealed. On  the  trial  of  the  present  action 
defendant  Pennington  County  Bank  by  cross- 
petition  set  up  the  chattel  mortgage  upon 
which  it  relied  in  the  former  action,  and  al- 
leged that  since  the  commencement  of  tbe 
replevin  action  the  mortgage  had  matured, 
that  it  is  now  entitled  to  the  possession  of 
the  property,  and  that  it  has  a  Hen  thereon 
by  virtue  of  Its  said  mortgage.  This  defense 
was  met  by  the  plaintiff  Dodge  County  Bank 
with  the  claim  that  the  forgier  action  Is  res 
adjudicate  as  to  all  the  matters  in  contro- 
versy herein.  The  first  action  referred  to 
was  affirmed  In  this  court  upon  tbe  sole 
ground  that  the  petition  did  not  state  a 
cause  of  action,  in  that  it  did  not  allege  facts 
showing  any  right  of  possession  in  the  plain- 
tiff in  that  action.  In  the  trial  of  that  ac- 
tion in  the  district  court  the  cause  was  sub- 
mitted to  the  jury  upon  the  one  question  only 
of  defendant's  damages  by  reason  of  the 
wrongful  taking  of  the  property  In  contro- 
versy. Tbe  jury  found  that  the  damages  by 
reason  of  the  wrongful  taking  of  the  prop- 
erty by  plaintiff  therein  was  the  sum  of  *1,- 
191.  Plaintiff  In  that  action  did  not  except 
to  the  instruction  given  by  the  court  as  to 
the  measure  of  damages,  nor  did  it  assiini 
any  error  in  the  giving  of  the  same  in  its 


*For  otlier  cases  see  same  topic  and  section  NUMBER  Id  Dec.  *  km.  Digs.  U07  to  date,  *  Reporter  Indexes 


Digitized  by  LjOOQIC 


Neb.) 


FAUBER  V.  EEm. 


849 


motion  for  a  new  trial;  and,  the  Judgment 
In  that  case  having  been  affirmed,  plaintiff 
Dodge  Ck>unt7  Bank  now  Insists  that  defend- 
ant cannot  question  the  amount  so  found  by 
the  verdict  of  the  jury  upon  which  the  court 
entered  Judgment;  that  the  fact  that  the 
Judgment  was  affirmed  upon  the  sole  ground 
that  the  petition  did  not  state  a  cause  of 
action,  did  not  affect  the  Judgment  rendered 
for  the  value  of  defendant's  possession.  DCr 
fendant's  contention,  In  brief,  is  that,  if  the 
petition  in  the  former  action  did  not  state 
a  cause  of  action,  the  court  was  without  Ju- 
risdiction to  enter  any  kind  of  a  Judgment, 
and  that  the  Judgment  for  $1,191  is  a  nullity. 
We  think  that  Is  the  main  question  In  this 
case,  and  that  it  Is  controlled  by  Campbell 
V.  Crone,  10  Neb.  671,  7  N.  W.  334 ;  Bodgers 
V.  Levy,  86  Neb.  601,  54  N.  W.  1080;  State 
V.  Letton,  56  Neb.  158,  78  N.  W.  533;  Held 
V.  Panska,  56  Neb.  195,  78  N.  W.  534.  While 
the  writer  would  have  been  disposed  to  have 
aligned  himself  with  Sullivan,  J.,  and  Ragan, 
C,  in  their  dissents  to  the  two  last  above 
cited  opinions,  the  question  must  now  be 
considered  as  foreclosed  in  this  court 

That  the  Judgment  In  the  former  case  in 
favor  of  defendant  in  the  replevin  action 
solely  upon  the  ground  that  the  petition  did 
not  state  a  cause  of  action  is  not  a  bar  to 
a  suit  by  the  Pennington  County  Bank  to 
establish  the  validity  of  its  Hen  under  its 
chattel  mortgage,  which  at  the  time  of  the 
former  action  was  not  due,  but  which  has 
since  matured,  is  settled  In  State  v.  Cornell, 
52  Neb.  25,  71  N.  W.  961,  McFarlane  v.  Cush- 
mail,  21  Wis.  401,  and  Gassert  v.  Black,  18 
Mont  85,  44  Pac.  401.  The  Judgment  of  the 
district  court  is  therefore  reversed,  and  the 
cause  remanded  for  further  proceedings  ac- 
cording to  law. 

Reversed  and  Demanded. 


FAVBEB  T.  EEIM.     (No.  15,471.) 
(Supreme  Court  of  Nebraska.     Oct.  9,   1909.) 

1.  Wills  ({  820*)  —  Bequest  —  Ceaboe  on 
Realty. 

A  provision  in  a  will  that  the  amount  of  a 
bequest  to  testator's  daughter  shall  remain,  in 
the  "home  place"  with  interest  payable  an- 
nually, in  the  event  of  her  being  marned  at  the 
time  of  testator's  death,  held  to  be  a  charge  ui>- 
on  the  realty  described,  though  further  provi- 
sion was  made  for  the  sale  of  the  property  and 
for  payment  of  the  legacy,  if  the  legatee  should 
become  a  widow. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  {  2114 ;   Dec.  Dig.  i  820.*] 

2.  Wills  ({  470*)— Constbuction— Consider- 
ation OF  Entibk  Will. 

In  giving  effect  to  a  bequest  the  entire  will 
should  be  examined  to  ascertain  the  intention 
of  the  testator. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  {  988 ;   Dec.  Dig.  {  470.*] 


3.  Wills  (8  725*)— Constructiok- Diabilitt 

or  Pebson  Acceptino  LiAhd. 

A  legatee  by  exercising  an  option  to  take 
testator's  land  at  its  appraised  value  under  the 
will  held  not  to  have  obligated  himself  to  pay 
other  legatees  more  than  the  amount  of  the  ap- 
praisement. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  S  1736;   Dec.  Dig.  $  725.*] 

(Syllabns  by  the  Court.) 

Appeal  from  District  Court,  Thayer  Coun- 
ty; Hurd,  Judge. 

Action  by  Catherine  Fauber  against  Har- 
rison Kelm.  Judgment  for  defendant  and 
plaintiff  appeals.    Reversed. 

See,  also,  120  N.  W.  1019. 

W.  E.  Goodhue,  J.  T.  Crew,  and  Hall, 
Woods  &  Pound,  for  appellant.  C.  L.  Rich- 
ards and  C.  H.  Sloan,  for  appellee. 

ROSE,  J.  Plaintiff  commenced  this'  suit 
In  the  district  court  of  Thayer  county  to  es- 
tablish a  Hen  on  160  acres  of  defendant's 
land  In  Thayer  county  for  the  amount  of  a 
legacy  under  her  father's  will,  and  to  re- 
quire defendant,  who  took  the  land  tmder 
It,  to  account  to  her  for  her  share  of  the 
estate.  Joseph  Kelm,  the  father  of  both 
plaintiff  and  defendant,  formerly  owned  the 
property,  and  disposed  of  It  by  a  will  con- 
taining the  following  provisions: 

"(1)  I  give  and  bequeath  to'  my  beloved 
wife,  Mary  Kelm,  the  sum  of  $200  In  mon- 
ey and  all  personal  property  which  she  is 
entitled  to  under  the  laws  of  the  state  of 
Nebraska  and  the  use  of  two  rooms  of  her 
own  choosing,  In  my  dwelling  house,  so  long 
as  she  shall  occupy  the  same,  and  the  in- 
terest on  the  sum  of  $3,000  during  her  natur- 
al life.  I  direct  that  my  executors  herein- 
after named  shall  leave  said  sum  in  my 
home  place,  when  they  shall  sell  the  same, 
and  the  same  shall  remain  a  lien  thereon 
and  the  purchaser  thereof  shall  annually  pay 
to  my  said  wife  the  interest  thereof  at  the 
rate  of  seven  per  cent  per  annum  during  her 
natural  life. 

"(2)  I  give  and  bequeath  to  each  of  my 
children,  as  follows:  To  my  son,  William 
Kelm,  the  sum  of  $254;  to  my  son,  Jacob 
Kelm,  the  sum  of  $654;  to  my  son,  Harri- 
son Keim,  the  sum  of  $200;  to  my  daughter, 
Mary  Bates,  the  sum  of  $404;  to  my  daugh- 
ter, Annie  Hay,  the  sum  of  $522;  to  my 
daughter  Eliza  Vender,  the  sum  of  $340. 

"(3)  J  give  and  t>equeatb  to  my  daughters, 
Catherine  Fauber  and  Cerllla  Bender,  as  fol- 
lows: To  my  daughter,  Catherine  Fauber, 
the  sum  of  $1,817,  and  to  my  daughter,  Cerll- 
la Bender,  the  sum  of  $373  upon  the  follow- 
ing conditions,  however:  In  the  case  either 
or  both  of  them  are  married  at  my  death 
the  aforesaid  sums  are  to  remain  In  my  home 
place  and  be  a  lien  thereon,  and  the  interest 
thereon  to  be  paid  annually  to  them,  accord- 
ing to  their  respective  shares;  but  in  case 
either  or  both  of  them  become  widows,  my 


•For  other  cues  IM  tarn*  topic  and  nction  NUMBER  in  Dec.  *  Am.  Digs.  1907  to  date,  A  Reporter  Indexes 
122N.W.- 


Digitized  by  VjOOQ  l€ 


850 


122  NORTHWESTERN  REPORTER. 


(Neb. 


executors  are  to  collect  said  money  and  pay 
It  to  than,  according  to  their  respective 
shares;  but  In  case  the  husbands  of  either 
or  both  of  them  surrlve  them,  said  sum  or 
sums  is  to  be  paid  to  their  heirs. 

"(4)  I  direct  that  my  executors  have  my 
home  place  appraised  by  six  disinterested 
freeholders  to  be  appointed  by  the  county 
court  of  Thayer  county,  who  shall  appraise 
the  same  and  after  the  same  is  so  apprais- 
ed my  son,  Harrison,  Is  to  have  the  refusal 
thereof  at  the  appraised  value,  and  in 
case  be  does  not  elect  to  take  it,  then  my 
son  Jacob  is  to  have  the  refusal;  and  in 
case  be  does  not  elect  to  take  it,  then  my  son 
William  is  to  have  the  refusal  thereof;  and 
in  case  he  does  not  so  elect,  then  my  execu- 
tors are  to  sell  the  same  at  either  public 
or  private  sale  as  they  shall  deem  to  the  best 
Interest  of  my  estate,  and  execute  a  deed 
to  the  purchaser  thereof,  whoever  the  same 
may  be. 

"(o)  I  further  direct  my  executors  to  sell 
all  my  estate  both  real  and  personal  and 
pay  my  debts  and  the  aforesaid  legacies  and 
in  case  there  is  a  surplus,  after  the  payment 
of  the  debts  and  the  aforesaid  legacies,  the 
same  shall  be  equally  divided  between  my 
children  subject,  however,  to  the  same  con- 
ditions and  restrictions  as  to  Catherine  Fau- 
ber  and  Cerilla  Bender." 

Among  other  things  it  is  disclosed  by  the 
record  that  Joseph  Kelm  died  in  June,  1888, 
and  that  bis  will  was  probated  In  July  fol- 
lowing. His  widow,  Mary  Kelm,  died  in 
January,  1003.  At  the  time  of  testator's 
death  plaintiff  was  a  married  woman,  and 
ber  husband  is  still  living.  The  "home 
place"  mentioned  in  the  will  is  the  land  In 
controversy.  In  the  manner  described  by  tes- 
tator It  was  appraised  at  $5,000  and  accept- 
ed by  defendant  When  the  will  was  ex- 
ecuted October  17,  1887,  it  was  Incumbered 
by  a  mortgage  for  $3,300.  In  the  answer  It 
is  alleged.  In  substance,  that  the  estate  of 
Joseph  Kelm  had  been  settled,  and  that, 
after  payment  of  the  debts,  there  remained 
only  enough  to  pay  20  per  cent  of  the  lega- 
cies; that  plaintiff  bad  received  the  inter- 
est on  20  per  cent  of  the  amount  bequeathed 
to  her;  that  20  per  cent  of  the  other  lega- 
cies had  been  paid  to  the  legatees  eutltled 
thereto;  and  that  the  executors  had  been 
discharged.  Upon  a  trial  in  the  district 
court  the  action  was  dismissed,  and  plain- 
tiff appeals. 

One  of  plaintiff's  objections  to  the  Judg- 
ment is  that  It  deprives  her  of  a  lien 
on  defendant's  land  for  the  amount  of  her 
legacy  under  the. terms  of  her  father's  will. 
She  has  asserted  this  right  In  her  pleadings, 
and  defendant  in  his  answer  has  denied  that 
"she  has  any  lien  or  claim  against  the  real 
estate  described  In  the  petition."  On  the  rec- 
ord presented  the  district  court  had  Juris- 
diction to  determine  the  issue  thus  raised. 
Since  she  is  not  a  widow,  she  can  only  col- 
lect under  the  will  at  present  the  Interest 


on  ber  legacy.  If  it  Is  not  a  lien,  defendant 
may  sell  the  land  without  regard  to  her  in- 
terests. The  dismissal  of  her  suit  was  an 
adjudication  that  she  was  not  entitled  to  a 
lien  to  secure  the  amount  of  the  bequest 
or  the  interest  thereon.  The  decision  on 
this  point  must  be  controlled  by  the  inten- 
tion of  testator  as  disclosed  by  his  entire 
will.  The  bequest  to  plaintiff  contains  these 
words:  "I  give  and  bequeath  to  my  daugh- 
ters, Catherine  Fauber  and  Cerilla  Bender, 
as  follows:  To  my  daughter,  Catherine  Fau- 
ber, the  sum  of  $1,817  and  to  my  daughter, 
Cerilla  Bender,  the  sum  of  $373,  upon  the 
following  conditions,  however:  In  case  ei- 
ther or  both  of  them  are  married  at  my 
death  the  aforesaid  sums  are  to  remain  in 
my  home  place  and  be  a  Hen  thereon,  and 
the  interest  thereon  to  be  paid  annually  to 
them,  according  to  their  respective  shares; 
but  in  case  either  or  both  of  them  l>ecome 
widows,  my  executors  are  to  collect  said 
money  and  pay  it  to  tnem,  according  to  their 
respective  shares;  but  in  case  the  husbands 
of  either  or  both  of  them  survive  them,  said 
sum  or  sums  Is  to  be  paid  to  their  heirs." 
The  conditions  on  which  slie  was  entitled 
to  a  lien  under  the  specific  terms  quoted 
were  present.  These  terms  were  not  annulled 
by  other  legacies  or  by  provisions  relating 
to  the  sale  of  the  land  or  by  any  other  di- 
rection of  testator.  It  follows  that  there 
was  error  in  denying  to  plaintiff  ber  right 
to  a  lien,  since  defendant  concedes  the  es- 
tate was  sufficient  to  allow  her  20  per  cent 
of  the  amount  bequeathed  to  her,  and  that 
he  paid  her  interest  on  that  basis. 

Another  point  argued  by  pluiutlff 'relates 
to  the  amount  of  defendant's  liability.  As 
already  shown,  the  farm  was  Appraised  in 
the  manner  described  In  the  will  at  $o,000. 
and  defendant  accepted  It  under  the  ap- 
praisement pursuant  to  the  option  authoriz- 
ing him  to  do  so.  The  land  was  Incum- 
bered by  mortgage  to  the  extent  of  $3,300. 
The  contention  is  that  defendant  took  the 
realty  subject  to  the  mortgage  and  to  the 
legacies  in  favor  of  plaintiff,  Cerilla  Bender, 
and  testator's  widow,  is  liable  for  the  full 
amount  of  the  Items  named,  and  must  ac- 
count to  plaintiff  accordingly.  On  the  oth- 
er hand,  defendant  insists  ttiat  by  exercis- 
ing his  option  to  take  the  land  at  its  apprais- 
ed value  he  only  obligated  himself  to  pay 
the  amount  of  the  appraisement  The  en- 
tire will  must  also  be  considered  la  deter- 
mining this  question.  The  provisions  re- 
lating to  liens,  to  the  appraisement  to  the 
payment  of  the  debts,  to  the  option  permit- 
ting one  of  the  sons  to  take  the  land  at  its 
appraised  value,  and  to  its  sale  in  the  event 
of  the  failure  of  any  of  the  sons  to  exer- 
cise the  option  indicate  there  was  no 
intention  on  part  of  testator  to  require  pay- 
ment of  more  than  the  amount  of  the  ap- 
praisement as  a  condition  of  acquiring  title. 
The  bequests  and  the  amount  of  the  mort- 
gage greatly  exceeded  the  appraised  value 


Digitized  by  LjOOQ  l€ 


Neb.) 


SENNETT  V.  MELVILLE. 


851 


of  the  land.  Ko  one  could  be  Induced  to  ac- 
cept It  on  conditions  requiring  bim  to  pay 
incumbrances  and  legacies  greatly  in  excess 
of  Its  value.  Sucb  a  construction,  if  under- 
stood, would  prevent  a  sale,  and  to  tbat 
extent  defeat  tbe  purpose  of  testator.  It  is 
not  warranted  by  the  language  of  the  in- 
strument. By  taking  tbe  land  under  the  wUI, 
defendant  did  not  bind  himself  to  pay  more 

'  than  its  appraised  value.  In  bis  formal 
acceptance,  however,  be  did  insert  the  words, 
"subject  to  all  incumbrances,"  but  did  not 

•  thereby  obligate  himself  to  pay  for  tbe  farm 
more  than  its  value,  as  appraised  under  the 
speciflc  terms  of  the  will,  or  to  create  and 
distribute  a  greater  estate  than  that  pos- 
sessed by  his  father  at  the  time  of  bis  death. 
For  tbe  error  already  pointed  out,  tbe 
cause  must  be  remanded  for  further  pro- 
ceedings, but  In  the  present  condition  of  tbe 
pleadings  and  proofs  it  Is  deemed  inadvisa- 
ble to  discuss  other  questions  argued. 
Reversed. 


SEXNETT  V.  MELVILLE  et  al.    (No.  16,175.) 
(Supreme  Court  of  Nebraska.    Oct.  9,  1909.) 

1.  Vendob  and  Pubchaseb  (i§  16,  17*)— Sale 
OF  Realty— Acceptance  of  Offeb. 

A  written  offer  to  sell  real  estate  does  not 
become  a  binding  contract  until  tbe  vendee 
accepts  the  tender  according  to  its  terms,  nor 
will  an  offer  to  purchase  real  property  bind  the 
owner  of  the  land  involved,  unless  he  uncondi- 
tionally accepts  tbe  bid. 

[Ed.  Note. — For  other  cases,  see  Vendor  and 
Purchaser,  Cent.  t>ig.  {{  17-21;  Dec.  Dig.  i§ 
1»>,  17.*] 

2.  Specific  Pebfobuance  (|  8*)— DiscBBrioN 

OF  COUBT. 

"Courts  of  equity  will  not  always  enforce 
a  specific  performance  of  a  contract.  Such  ap- 
plications are  addressed  to  the  sound  legal 
discretion  of  the  court,  and  it  will  be  governed 
to  a  great  extent  by  the  facts  and  merits  of 
each  case."  Morgan  v.  Hardy,  16  Neb.  427,  20 
N.  W.  337. 

[Ed.  Note. — For  other  cases,  see  Specific  Per- 
formance, Cent.  Dig.  S  17,  18;   Dec.  Dig.  i  8.*] 

(Syllabus  by  tbe  Court.) 

Appeal  from  District  Court,  Custer  County ; 
Uostetler,  Judge. 

Action  by  John  M.  Sennett  against  James 
H.  Melville  and  others.  Judgment  for  de- 
fendants, and  plaintiff  appeals.    Affirmed. 

Snlllran  &  Squires,  for  appellant.  S.  A. 
Holcomb  and  Kirkpatrick  &  Schwind,  for  ap- 
pellees. 

ROOT,  J.  This  Is  a  second  appeal  of  this 
case.  Our  first  opinion  may  be  found  in  76 
Neb.  690,  107  N.  W.  991.  Upon  a  second  trial 
some  additional  evidence  was  adduced  and  a 
Judgment  entered  for  defendants.  Plaintiff 
appeals. 

The  action  is  for  a  speciflc  performance  of 
an  alleged  contract  for  the  sale  of  real  estate. 
A  consideration  of  the  evidence  sustains  the 


trial  court  in  finding  that  the  parties  did 
not  make  a  contract  prior  to  March  25,  1902. 
Epperson,  C,  held  that  tbe  plaintiff  did  not 
accept  Melville's  offers  contained  in  tbe  let- 
ters of  March  25  and  August  29,  1902.  The 
letters  written  by  plaintiffs  agent  Brown  are 
now  before  us.  The  first  offer  authorized 
Brown  to  deliver  tbe  deed  and  an  abstract 
for  tbe  land  to  plaintiff  upon  payment  of 
$500  plus  exchange.  This  offer  was  not  ac- 
cepted, but  the  title  as  evidenced  by  Mel- 
ville's abstract  was  criticized  by  Brown,  and 
suggestions  were  made  by  him  to  said  defend- 
ant tbat  an  attorney  should  be  employed  to 
remedy  tbe  defects.  August  29th  Melville 
wrote  to  Brown  that  an  attorney  bad  advised 
the  writer  tbat  bis  title  to  said  land  was  good, 
and  that,  "If  Mt.  Sennett  thinks  the  title  not 
good,  you  bad  better  return  the  deed  to  me,  but 
if  be  wants  to  take  it  as  it  ia,  we  will  return 
you  the  abstract  so  tbe  deal  can  be  closed  up 
at  onc«."  September  2d  Brown  replied  to 
defendant's  last  communication:  "I  think  if 
you  will  send  the  abstract  and  with  this  let- 
ter you  have  written  me,  that  Mr.  Sennett 
will  accept  the  deed  if  you  will  return  it  at 
once.  I  think  Mr.  Sennett  will  be  In  tbe  last 
of  this  week."  It  seems  clear  that  to  this 
point  the  minds  of  the  litigants  bad  not  met 
with  a  common  intention.  Melville  was  only 
offering  to  sell  without  further  perfecting 
title,  and  plaintiff,  through  bis  agent,  mere- 
ly Indicated  a  probability  that  tbe  offer  might 
be  accepted.  Melville  testified  tbat  thereafer, 
and  prior  to  September  27th,  he  wrote  Brown 
to  return  the  deed.  On  the  last-named  date 
Melville  wrote  to  Brown  a  letter  containing 
this  statement:  "Some  time  ago  I  wrote  you 
to  return  me  the  deed  you  held  for  me.  Xou 
have  not  done  so,  but  write  me  that  Mr. 
Sennett  will  close  the  deal  as  It  stands.  He 
should  have  done  this  last  spring,  not  stand 
me  off  until  now.  I  have  l)een  quite  an  ex- 
pense and  trouble  in  looking  up  the  title 
and  in  tbe  meantime  land  has  advanced  in 
price  and  I  cannot  afford  to  close  tbe  deal 
at  this  date  for  the  price  agreed  upon  last 
spring.  But  If  Mr.  Sennett  wants  tbe  land 
for  $000.00,  return  the  deed  to  me  and  I  will 
close  up  at  once.  If  he  does  not  want  it,  re- 
turn the  deed  at  once."  Brown  received  the 
letter,  and  subsequently  wrote  Melville, 
claiming  that  Sennett  was  entitled  to  tbe 
land  for  $500.  Melville  denied  the  assertion. 
Brown  does  not  unequivocally  deny  tbat 
Intermediate  September  2d  and  September 
27th  he  received  a  letter  from  Melville  de- 
manding a  return  of  the  deed.  If  sucb  a 
letter  was  sent  and  received,  tbe  offer  to 
sell  was  withdrawn  prior  to  September  27th. 
In  any  event,  Melville  withdrew  from  the  ne- 
gotiations on  the  last-named  date,  and  prior 
thereto  plaintiff  bad  not  absolutely  accepted 
the  terms  proposed  by  said  defendant  for  a 
sale  and  transfer  of  tbe  title  to  said  land. 


«For  oiher  cuei  aea  same  topic  and  lectton  NUMBER  la  Dec.  &  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


832 


122  NOHTHWESTBRN  REPORTEH. 


(Keb. 


Brown's  conduct.  Independent  of  his  letters. 
Indicates  that  Sennett  bad  not  accepted  Mel- 
ville's offer,  and  that  Brown,  as  such  agent, 
had  not  done  so  prior  to  September  2Ttb.  If 
the  offer  bad  been  accepted.  It  would  have 
been  incumbent  on  Sennett  to  have  remitted 
to  Melville,  or  at  least  to  have  deposited  for 
his  benefit  with  Brown  the  $500.  This  was 
never  done.  Sennett  had  an  open  account  for 
about  $500  in  the  banl^  wherein  Brown  was 
cashier.  No  part  of  this  money  was  ever  set 
apart  for  Melville's  benefit,  nor  was  a  check 
drawn  thereon  foe  him.  The  district  court, 
ui>on  the  record  in  this  case  and  in  the  exer- 
cise of  a  sound  legal  discretion,  was  justified 
in  refusing  to  decree  a  specific  performance 
of  the  alleged  contract.  Morgan  v.  Hardy, 
16  Neb.  427,  20  N.  W.  337.  Lopeman  v.  C!ol- 
burn  (Neb.)  118  N.  W.  116. 

It  is  argued  that  Brown  was  plaintiff's 
agent,  and  that  the  deed  was  delivered  at  the 
time  the  former  became  custodian  of  that 
Instrument.  Brown,  although  Sennett's  ageut, 
was  also  Mellville's  representative  for  the 
purpose  of  holding  the  deed  until  plaintiff 
complied  with  the  conditions  by  him  to  be 
performed.  Sennett  v.  Melville,  76  Neb.  600, 
603,  107  N.  W.  901.  Until  Sennett  assented 
to  the  conditions,  mere  possession  of  the  deed 
by  Brown  could  in  no  manner  prejudice  Mel- 
ville, nor  perfect  that  instrument  by  delivery. 

The  judgment  of  the  district  court  is  af- 
firmed. 


JONES  v.   STATE.     (No.  16,139.) 
(Supreme  Court  of  Nebraska.    Oct.  9,  1909.) 

Ceiminal  Law  (I  1159*)— Appeai— Review— 

Questions  of  Fact. 

Questions  of  tact  are  for  the  juiy,  and  a 
verdict  or  fiudiug  by  them  on  a  question  of  fact, 
where  the  testimony  is  conflicting,  will  not  be 
reviewed. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  {  3076 ;   Dec.  Dig.  I  lloO.*] 

(Syllabus  by  the  Court.) 

Error  to  District  Court,  Wayne  County; 
Welch,  Judge. 

Albert  Jones  was  convicted  of  operating  an 
automobile  at  a  speed  in  excess  of  the  stat- 
utory limit,  and  he  brings  error.    Aflirmed. 

P.  A.  Berry,  for  plaintiff  in  error.  W.  T. 
Thompson  and  Grant  G.  Martin,  for  defend- 
ant In  error. 


LETTON,  J.  Plaintiff  in  error  was  con- 
victed of  operating  an  automobile  in  the  city 
of  Wayne  at  a  rate  of  speed  in  excess  of  the 
statutory  limit,  ms  principal  contentions  in 
this  court  are  that  the  verdict  Is  not  sus- 
tained by  sutficient  evidence,  that  the  court 
erred  in  refusing  to  strike  out  the  testimony 
of  certain  witnesses,  and  that  the  verdict 
of  the  jury  was  the  result  of  prejudice. 

The  evidence  for  the  prosecution  is  not 


very  satisfactory  to  the  mind  of  the  writer 
of  this  opinion,  but  the  evidence  was  suffi- 
cient to  satisfy  the  jury  that  the  statute 
had  been  violated,  and.  If  there  Is  sufficient 
evidence  to  sustain  the  verdict.  It  must  stand 
whatever  the  opinion  of  this  court  might  be 
upon  the  same  testimony  if  it  were  its  duty 
to  pass  upon  the  facts.  The  testimony  of 
the  complaining  witnes.  Brown,  was  direct 
and  specific  that  the  rate  of  speed  was  15 
miles  an  hour  or  more,  and  he  qualified  hi^ 
self  as  being  competent  to  express  his  opin- 
ion upon  this  point  The  evidence  as  to  the 
rapid  running  of  the  automobile  is  corrob- 
orated to  some  extent  by  other  witnesses. 
It  is  said  there  Is  no  testimony  that  the 
locus  in  quo  was  within  "the  close  built  up 
portion"  of  the  city  of  Wayne.  Mr.  Brown 
testified,  however,  that  the  place  where  be 
saw  the  defendant  was  in  the  city  of  Wayne, 
and  gave  other  testimony  showing  that  at 
and  near  the  locality  the  street  was  closely 
built  up  with  buildings  used  for  business 
and  residence  purposes.  This  testimony  is 
uncontradicted. 

The  testimony  on  the  part  of  the  defense 
was  that  the  rate  of  speed  was  within  the 
statutory  limit  of  10  miles  an  hour.  The  evi- 
dence would  sustain  a  verdict  eittier  of  con- 
viction or  acquittal,  depending  entirely  upon 
which  set  of  witnesses  the  jury  found  most 
worthy  of  credit. 

It  is  said  that  the  court  erred  In  refusing 
to  strike  out  the  evidence  of  certain  wit- 
nesses. This  evidence  in  substance  was  that 
at  the  time  and  place  charged  the  automo- 
bile was  going  at  a  rapid  rate  of  speed, 
though  the  witnesses  were  unable  to  estimate 
the  number  of  miles  per  hour.  It  was  no 
error  to  refuse  to  strike  this  testimony  since 
it    was   of   some   slight   probative   value. 

It  Is  argued  that  the  verdict  is  the  result 
of  the  prejudice  of  the  jury  against  the  use 
of  automobiles.  It  Is  not  impossible  that  the 
verdict  is  tmjust  and  the  result  of  prejudice, 
but  we  cannot  so  declare  when  there  Is  suffi- 
cient evidence  to  support  it  and  no  extrane- 
ous facts  shown  which  cast  any  reflection 
upon  the  good  faith  or  impartiality  of  the 
Jury. 

The  judgment  of  the  district  court  Is  right, 
and  must  be  affirmed. 


HESPE> 


^"°772 


SSPEN  V.  WENDELN  et  al. 
(N«.  15,757.) 

(Supreme  Court  of  Nebraska.     Oct  9,   1909.) 

l.'SPECIFIC   PeBFOBMANCE    (|   86*)— EVIDENCE. 

Direct  evidence  that  a  testator  made  an 
oral  contract  with  his  Btepson  that  be  should 
remain  in  the  family,  assist  in  managing  the 
testator's  business,  carry  on  the  work  or  the 
farm,  and  perform  the  duties  of  a  son  until  be 
should  become  21  years  of  age,  on  condition  that 
at  that  time  he  should  receive  a  team,  harness, 
and  wagon,  and  at  the  death  of  the  testator 


•For  otlier  cuei  aee  same  topic  and  aecUon  NUMBER  in  Dec.  A  Am.  Dls*.  1907  to  data,  ft  Reporter  Indexu 


Digitized  by  VjOOQ  l€ 


Neb.) 


HESPEN  V.  WENDELN. 


853 


share  equally  with  his  own  children  in  his  es- 
tate, if  clear  and  satisfactory,  will  entitle  the 
plaintiff  to  a  decree  for  specific  performance 
where  it  is  apparent  that  he  has  fully  performed 
the  contract  on  Bis  part.     •' 

[BM.  Note.— For  other  cases,  see  Specific  Per- 
formance, Cent.  Dig.  SS  223,  224;  Dec  Dig.  S 
8G.*] 

2.  Specific  Pebfobmanck  (i  121*)— Bvidbnce. 
Evidence  examined,  and  held  su£Bcient  to 
require  a  finding  and  judgment  for  the  plain- 
tiff. 

[E!d.  Note.— For  other  cases,  see  Specific  Per- 
formance, Cent.  Dig.  fS  38T-395;  Dec.  Dig.  S 
121.»] 

(Syllabns  by  the  Court) 

Appeal  from  District  Court,  Otoe  County; 
Jessen,  Judge. 

Action  by  Harm  B.  Hespen  against  John 
F.  Wendeln  and  others.  Judgment  for  de- 
fendants, and  plaintiff  appeals.  Reversed 
and  remanded. 

Pitaer  &  Hayward,  for  appellant  S.  P. 
Davidson,  for  appellees. 

BARNES,  J.  This  action  "was  brought  In 
the  district  court  of  Otoe  county  to  enforce 
the  specific  performance  of  an  alleged  verbal 
contract  between  the  plaintiff  and  one  John 
A.  Wendeln,  deceased.  The  trial  resulted  in 
a  finding  and  judgment  for  the  defendants, 
and  the  plaintiff  has  appealed.  This  brings 
the  case  before  us  for  a  trial  de  novo,  and 
we  are  required  to  make  our  finding  and 
form  our  conclusion  from  the  evidence  con- 
tained in  the  record,  without  particular  re- 
gard to  the  findings  and  judgment  of  the  tri- 
al court. 

It  appears  that  the  plaintiff  was  bom  out 
of  wedlock  as  the  natural  son  of  his  mother 
about  nine  years  before  her  marriage  to 
John  A.  Wendeln.  Tbe  contract  sought  to  be 
enforced  and  the  facts  on  which  plaintiff 
bases  his  claim  are  set  out  in  the  petition 
In  substance,  as  follows:  The  plaintllTs 
mother  and  John  A.  Wendeln  were  married 
In  Etzel,  Germany,  when  plaintiff  was  nine 
years  of  age,  and  moved  Immediately  after 
their  marriage  to  Otoe  county.  Neb.,  where 
they  lived  to  the  time  of  their  respective 
deaths;  that  after  their  removal  to  America 
the  plaintiff  remained  in  the  family  of  his 
mother  and  stepfather,  and  worked  npon  the 
farm  where  they  lived  without  wages  until 
after  he  became  of  age;  that  about  a  year 
after  that  time  be  received  from  his  step- 
father a  team,  harness,  and  wagon.  It  is 
further  alleged  that  the  plaintiff  never  knew 
his  father;  that  bis  mother  received  from 
his  own  father  a  considerable  sum  of  mon- 
ey, at  least  $200  in  amount,  to  be  used  for 
plaintiff's  benefit,  and  to  assist  his  mother 
In  caring  for  bim;  that  she  worked  out  and 
provided  for  herself,  and,  upon  her  marriage 
to  John  A.  Wendeln,  this  money  was  used 
In  bringing  the  family  to  America,  and  to 
start  them  In  farming;    that  from  the  time 


of  their  arrival  In  America  the  plaintiff  took 
bis  stepfather's  name,  and  was  known  by 
that  name  during  his  boyhood,  at  home,  at 
school,  and  generally  among  the  people  of 
tbe  community  where  he  lived;  that  be 
habitually  called  his  stepfather  "Pa,"  and 
was  called  by  hlfn  "My  Harm,  my  son,  and 
my  child";  that  the  plaintiff  after  coming 
to  America  was  permitted  to  attend  sclrool 
a  few  months,  and  learned  to  speak  and 
write  the  English  language  readily;  that  be 
was  kept  at  work  almost  constantly  In  as- 
sisting his  stepfather  In  tweaking  out  land 
purchased,  in  bringing  the  same  into  a  state 
of  cultivation,  and  In  the  farm  work  general- 
ly ;  that  not  only  in  this  way  did  he  assist 
his  stepfather,  but  he  also  assisted  him  In 
business  matters  and  In  the  management  of 
tbe  farm,  so  tbat  his  stepfather  was  depend- 
ent upon  him  and  trusted  him  as  his  own 
son.  The  petition  further  alleged  that  dar- 
ing the  year  1878,  when  plaintiff  was  16 
years  of  age,  he  was  offered  employment  in 
a  drug  store  in  the  village  of  Syracuse,  on 
terms  such  as  would  enable  him  to  attend 
school,  complete  his  education,  and  make  a 
living  for  himself;  that  he  desired  to  ac- 
cept this  offer,  and  his  mother  was  willing 
he  should  do  so.  for  his  own  good,  but  bis 
stepfather  insisted  that  he  could  not  get 
along  without  him,  and  in  requesting  plain- 
tiff to  remain  with  him  promised  plaintiff 
and  his  mother  that.  If  be  would  remain 
upon  tbe  farm  and  help  him  as  be  had  there- 
tofore done  until  he  should  reach  the  age  of 
21  years,  he  would  then  give  him  a  team, 
harness,  and  wagon  to  enable  him  to  begin 
farming  for  himself,  and  that  plaintiff 
should  share  equally  with  his  own  children, 
who  are  defendants  herein,  in  whatever  prop- 
erty he  should  have  at  the  time  of  his  death; 
that,  relying  upon  this  agreement,  tbe  plain- 
tiff gave  up  the  employment  mentioned,  and 
continued  to  work  on  the  farm  with  and  for 
his  stepfather  without  wages;  that  from 
that  time  on  plaintiff  did  a  large  part  of  the 
management  and  work  of  the  farm  until  he 
was  nearly  22  years  old,  at  which  time  his 
stepfather  gave  him  a  team,  harness,  and 
wagon  according  to  the  terms  of  bis  agree- 
ment, and  in  part  fulfillment  of  his  contract; 
that  thereafter,  and  up  to  the  time  of  his 
death,  bis  stepfather  continued  to  rely  upon 
the  plaintiff  for  assistance  and  advice,  and 
frequently  expressed  to  him  and  to  others 
his  regard  for  plaintiff  as  his  own  son,  and 
his  intention  to  so  treat  him  in  the  division 
of  his  property  at  the  time  of  his  death; 
that  their  relations  and  mutual  obligations 
to  each  other,  and  his  stepfather's  depend- 
ence upon  him,  formed  a  part  of  the  induce- 
ments for  making  the  agreement  set  out,  and 
the  consideration  therefor.  The  petition  fur- 
ther alleged  that  the  property  left  by  John 
A.  Wendeln  at  the  time  of  his  death  was 
largely  accumulated  as  a  result  of  the  labor 


•For  othar  oasM  sm  same  topic  and  lecUoa  NUMBER  In  Dec.  A  Am.  Dlga.  1M7  to  date,  ft  Reporter  IndazM 


Digitized  by  VjOOQ  l€ 


854 


122  NORTHWESTERN  REPORTER, 


(Neb. 


and  assistance  given  him  by  plaintiff  In  the 
early  times  when  the  land  to  which  they 
had  come,  and  the  country  where  they  lived 
was  new.  Full  and  complete  performance 
was  alleged  on  the  part  of  plalntltt,  together 
with  a  failure  to  perform  on  the  part  of  the 
deceased.  Plaintiff  prayed  for  specific  per- 
formance of  the  contract,  and  a  decree  set- 
ting apart  to  him  one-fotirth  of  the  assets 
of  the  estate,  and  for  general  equitable  re- 
lief. 

John  F.  Wendeln,  Anna  8.  Wendein,  and 
Metha  Juilfs,  together  with  Theodore  Fre- 
rlchs,  the  executor  of  the  estate  of  the  de- 
ceased, are  the  defendants.  By  their  answers' 
they  deny  both  generally  and  specifically  all 
of  the  allegations  of  the  petition.  They  fur- 
ther plead  the  statute  of  frauds,  in  that  no 
writing  of  any  kind  was  ever  made  or  sign- 
ed evidencing  any  such  contract,  and  alleged 
want  of  consideration.  It  is  further  alleged 
by  the  answers  that  all  of  the  property  in 
question  above  the  amount  and  value  of 
$1,200  was  accumulated  by  the  defendants 
and  their  father  after  plaintiff  became  of 
age;  and  that  the  team,  harness,  and  wagon 
mentioned  In  the  plaintiff's  petition  were  giv- 
en to  him  by  his  stepfather  as  an  act  of  kind- 
ness, gratuitously  performed,  to  aid  the  plain- 
tiff in  starting  in  life  for  himself.  The  reply 
admits  that  there  was  no  writing  evidencing 
the  contract  alleged,  but  denies  each  and 
every  other  allegation  contained  in  the  an- 
swers. 

An  examination  of  the  record  discloses  that 
there  is  no  controversy  as  to  the  following 
facts:  John  A.  Wendeln  died  in  Otoe  county. 
Neb.,  in  July,  1906,  leaving  an  estate  consist- 
ing of  real  and  personal  property  of  the  val- 
ue of  $25,000  Incumbered  by  an  indebtedness 
of  $1,00S:  that  the  defendants  John  F.  Wen- 
deln, Anna  S.  Wendeln,  and  Metha  Juilfs  are 
the  children  of  John  A.  Wendeln  and  his  wife, 
the  plaintltTs  mother,  and  therefore  the 
plaintiff  is  the  stepson  of  the  deceased  and 
half  brother  of  the  above-named  defendants ; 
that  the  plaintiff  was  born  in  the  year  18C2 
in  the  village  of  Etzel,  Oermany,  and  bears 
his  mother's  maiden  name,  she  being  unmar- 
ried at  the  time  of  his  birth;  that  the  defend- 
ants above  named,  together  with  Theodore 
Frerichs,  the  executor  of  the  estate,  are  the 
only  persons  interested  therein;  that  by  the 
last  will  and  testament  of  John  A.  Wendeln 
division  of  his  property  was  made  among  his 
own  children  with  a  legacy  of  $300  only  to 
the  plaintiff;  that  plalntifTs  mother  and  John 
A.  Wendeln  were  married  in  May,  1871,  in 
Etzel,  Oermany,  when  the  plaintiff  was  nine 
years  of  age,  and,  together  with  plaintiff,  re- 
moved immediately  to  Otoe  comity.  Neb.;  that 
plaintiff  remained  in  the  family  of  his  mother 
and  stepfather  and  worked  upon  the  farm 
where  they  lived  without  wages  until  he  be- 
came of  age,  and  after  that  time  he  received 
from  his  stepfather  a  team,  harness,  and  wag- 
on, as  alleged  In  the  petition.  It  further 
appears  that  the  only  question  about  which 


there  Is  any  serious  controversy  Is  wbetber 
or  not  the  contract  relied  on  by  the  plain- 
tiff was  made  as  stated  in  his  petition.  The 
evidence  on  that  question  is,  in  substance,  as 
follows: 

One  William  Kronsbein  testified,  in  effect, 
that  about  the  Ist  of  June,  187S,  he  made  a 
trip  with  John  Wendeln,  his  brother  Herman, 
and  the  plaintiff  to  the  Tallage  of  Syracuse; 
that  while  there  he  heard  Mr.  Green,  who 
was  the  proprietor  of  a  drug  store  in  that 
village,  offer  the  plaintiff  a  place  in  his  store. 
The  witness  said:  "I  heard  all  this  talk  In 
the  drug  store,  and  I  told  John  Wendeln  on 
the  street  that  Harm  (meaning  the  plalnUS) 
was  going  to  leave,  and  that  was  all  that  was 
said  at  first;  and  then  on  the  road  John  com- 
menced talking  to  Harm.  He  says:  'Well, 
Harm,  Bill  told  me  you  was  going  to  leave.' 
'Well,'  Harms  says,  'Yes ;  I  am  going  to  work 
for  Green.'  The  old  man  says:  'Harm,  if 
you  leave  me,  I  am  lost'  And  then  he  made 
the  agreement  with  him.  He  says:  'I  give 
you  a  team,  wagon,  and  harness,  and  start 
you  out.  If  you  stay  with  me  until  21  years 
old."  And  I  told  him:  'It  Is  better  to  write 
it  out  in  black  and  white.'  And  John  says: 
That  ain't  necessary.  We  got  two  witnesses. 
Tou  be  a  witness  and  my  brother  Herman.' 
That  was  all  that  was  said  at  first.  Then  we 
crossed  the  creek,  and  on  the  other  side  he 
says:  'Well,'  he  says,  'I  do  better,  Barm.  If 
you  stay  with  me,  and  work  like  you  always 
did,  you  get  the  same  as  them  other  children. 
You  are  my  boy  as  good  as  them  others.' 
That  was  all  that  was  said  on  the  road. 
Now,  the  next  morning,  well,  he  says  that 
Harm  would  stay.  He  told  his  wife  just  the 
same  as  be  told  it  on  the  road.  And  George 
Wllke  asked  me  If  he  made  that  agreement 
with  Harm  about  the  wagon  and  harness  and 
the  rest,  and  I  told  him,  'Yes.'  *  •  •  And 
John  Wendeln  come  in  himself,  and  we  talk- 
ed It  over,  and  he  says  now  Harm  was  going 
to  stay  Just  the  same,  team,  wagon,  and  har- 
ness and  his  share." 

A  witness  by  the  name  of  Fritz  Pahde  tes- 
tified that  subsequent  to  the  year  1878  he  had 
a  talk  with  John  A.  Wendeln,  in  which  the 
witness  said:  "This  Harm  aint  your  boy." 
And  Wendeln  replied:  "Yes;  it  is  my  Iwy, 
even  if  I  am  stepfather  to  him.  I  call  him 
my  boy  anyhow."  "Well,"  he  says,  "I  call 
him  my  Iray,  and  he  is  Just  as  good  as  any 
of  my  other  children."  He  says:  "Whenever 
he  is  around  he  is  just  as  any  of  the  rest 
of  them,  and  he  will  get  Just  as  much  as 
any  of  the  rest  of  them." 

One  John  Badberg  testified  that  he  bad  a 
talk  with  Wendeln  about  Harm  Bespen.  He 
said:  "He  told  me:  'That  boy  works  hard, 
and  I  couldn't  get  along  without  him.'  And 
he  says:  'I  never  forget  him  when  I  get  good 
luck,  and  something  left  when  I  die.  He  gets 
his  part  Just  as  the  other  ones.' " 

John  Henrlchs  testified  that  in  a  conver- 
sation with  the  deceased  about  Barm  Bes- 
pen the  deceased  said:    "He  wanted  Harm  t» 


Digitized  by 


L-oogle 


Neb.) 


HB8PBN  T.  WENDELN. 


855 


live  there  yet,  and  Harm  was  a  good  boy. 
He  treat  him  all  the  time  good,  and  Harm  get 
bis  share  Just  the  same  as  other  people^ 
That  is  what  he  told  me."  On  cross-examina- 
tion the  witness  said:  "Well,  he  told  me  that 
Harm  was  a  good  boy,  and  he  like  to  give 
him  Just  the  same  as  them  other  ones." 

The  plaintiff  was  himself  permitted  to  tes- 
tify, over  objections,  in  substance,  as  fol- 
lows: "*I  heard  a  conversation  between  my 
father  and  my  mother.  Father  told  her  I 
was  going  to  leave  home,  and  that  they 
couldn't  spare  me.  He  said:  'I  have  made 
Harm  an  offer,  and  I  tbinlc  It  Is  good  enough. 
It  is  the  best  I  can  do.  What  do  you  think 
about  Itr  She  says:  'What  is  it?'  He  says: 
*I  have  offered  him  a  team,  harness,  and  wag- 
on, and  If  he  will  stay  until  he  is  21,  and 
if  there  is  any  property  after  you  and  me  are 
dead  and  gone,  I  told  him  be  could  have  an 
equal  share  with  the  rest  of  the  children.' 
Mother  then  came  to  me  and  talked  to  me, 
and  said:  'Harm,  we  can't  very  well  get 
along  without  you.  We  are  now  making 
money,  making  good  headway,  and  i  think 
father  has  offered  you  a  good  thing  here. 
I  would  like  to  have  you  stay  with  us.'  And 
I  says:  'AH  right,  I  will  do  so.' "  The  plain- 
tiff also  testified,  over  objections,  that  he 
heard  a  conversation  between  one  Stromer 
and  his  stepfather  as  follows:  "Mr.  Stromer 
was  standing  on  the  sidewalk  in  there,  and 
drank  a  glass  of  beer.  We  generally  drank  a 
glass  of  beer  when  we  went  to  town.  We 
walked  up  to  him,  and  Mr.  Stromer  lays: 
'Are  yon  sick,  John?"  Father  says,  'Tes;  I 
am  not  feeling  well.'  'Well,'  he  says,  'John, 
why  don't  you  quit  work?  You  don't  have 
to  work,  you  got  plenty.'  'No,'  father  says, 
'I  got  to  work.  I  have  got  to  get  some  more.' 
Stromer  says:  'You  have  got  those  three  chil- 
dren. Yon  got  enough  for  them.'  Father 
says:  'No;  I  have  got  four  okitdren.  This 
boy  is  Just  the  same  as  the  rest  of  my  chil- 
dren, and,  after  I  die,  he  gets  the  same  as 
the  rest  of  my  children.'  That  was  the  con- 
versation." 

It  appears  that  the  trial  court,  refused  to 
consider  this  testimony  because  he  thought 
It  was  Incompetent  However,  in  addition  to 
the  evidence  above  set  forth,  there  were  sev- 
eral facts  and  circumstances  testified  to  by 
other  witnesses  which  tended  In  a  measure 
to  corroborate  the  evidence  of  Mr.  Kronsl>eIn 
as  to  the  making  of  the  contract  in  question, 
and  there  is  nothing  in  the  record  which 
shows  or  tends  to  show  that  the  foregoing 
testimony  was  false  or  unreliable  in  any  par- 
ticular. As  shown  by  the  record  nearly  all 
of  the  witnesses  were  Germans,  and,  al- 
though they  could  not  speak  the  English 
language  correctly,  yet  their  evidence  bears 
the  stamp  of  truth,  and  is  convincing  In  Its 
effect  We  are  therefore  of  opinion  that  it 
meets  the  requirement  of  the  rule  that  to  es- 
tablish such  a  contract  the  evidence  must 
be  clear  and  satisfactory. 


in  Kofka  V.  Hosli^,  4t  Neb.  328,  50  N. 
W.  788,  25  L.  R.  A.  207,  43  Am.  St  Rep. 
685,  it  appeared  that  a  girl  about  17  months 
old  was  given  by  her  parents  to  her  uncle 
and  aunt  under  an  agreement  that  they  would 
adopt  her  and  rear,  nurture  and  educate 
her;  that  she  was  to  be  as  their  own  child, 
and  at  their  death  she  was  to  receive  or  be 
left  all  the  property  which  they  might  own. 
She  lived  with  them  until  they  died  some 
10  years  afterward,  took  their  name,  did  not 
recognize  or  know  her  own  father  or  mother 
In  the  true  relation,  but  knew  them  as,  and 
called  them,  uncle  and  aunt  and  knew  and 
recognized  her  uncle  and  aunt  as  father  and 
mother.  They  died  possessed  of  real  estate 
in  the  city  of  Omaha  which  they  did  not  by 
will  leave  to  her.  It  was  held  that  she  was 
entitled  to  a  decree  giving  her  the  title  to 
the  property  by  way  of  specific  performance 
of  the  contract  In  Harrison  v.  Harrison, 
80  Neb.  108,  113  N.  W.  1042,  it  appeared  that 
one  James  Harrison  owned  a  quarter  sec- 
tion of  land  in  York  county.  Neb.;  that  he 
was  a  widower,  and  the  father  of  William 
A.,  Hattie  K,  and  Frederick  J.  Harrison; 
that  In  the  spring  of  1893  the  father  and 
Frederick  J.  moved  upon  the  farm  In  York 
county,  and  lived  there  until  1808;  that 
Frederick  J.  married,  bringing  his  wife  to  the 
farm;  that  at  the  time  they  moved  to  the 
farm  in  question  F'rederick  J.  had  a  posi- 
tion In  Denver  where  he  was  doing  well ; 
that  in  order  to  induce  him  to  abandon  his 
position  and  live  with  him  upon  the  farm, 
the  father  agreed  to  give  him  the  farm  at  the 
time  of  his  death.  After  the  father's  death, 
Frederick  J.  and  his  wife  continued  to  live 
on  the  farm,  and  claimed  to  own  the  same 
by  reason  of  his  having  complied  with  the 
terms  of  the  agreement.  Suit  was  brought 
by  his  brother  and  sister  to  quiet  their  title 
to  two-thirds  of  the  land  and  partition  the 
same.  It  was  held  that  by  having  com- 
piled with  the  terms  of  the  contract  Fred- 
erick J.  became  the  owner  of  the  land  and 
his  contract  was  specifically  enforced.  In 
Peterson  v.  Bauer  (Neb.)  119  N.  W.  784,  It 
appeared  that  one  John  H.  Bauer  adopted 
Sarah  Matilda  Nix  when  she  was  eight  years 
of  age  under  an  agreement  with  her  father 
that  he  would  take  her  as  his  own  child, 
care  for  her,  school  her,  and  at  his  death 
she  should  share  his  estate  equally  with  his 
son.  She  lived  with  Bauer  and  his  wife, 
was  baptized  In  his  name,  faithfully  per- 
formed the  services  of  a  daughter,  and  re- 
mained with  them  jntll  she  was  about  26 
years  of  age,  when  with  Bauer's  consent  she 
married  a  man  Dy  the  name  of  Peterson. 
Bauer  failed  to  carry  out  the  agreement  on 
his  part,  and,  after  his  death,  she  brought 
an  action  ror  specific  performance  of  the 
contract.  It  was  held  that  she  was  entitled 
to  recover  one-half  of  Bauer's  estate. 

After  a  careful  examination  of  the  evi- 
dence we  are  satisfied  that  the  facts  of  thla 


Digitized  by  LjOOQIC 


836 


122  NORTHWESTEUN  REPORTER. 


(Kebu 


case  are  brought  well  within  the  role  an- 
nounced by  the  foregoing  decisions.  We  there- 
fore find  that  the  contract  In  question  was 
made  In  form  and  substance  as  alleged  in 
the  plalntlfTs  petition. 

It  Is  urged,  howerer,  that  there  was  not 
sufficient  performance  on  the  part  of  plain- 
tier  to  talie  the  contract  out  of  the  statute 
of  frauds.  We  do  not  so  view  the  evidence. 
The  plaintiff  in  this  case  was  not  bound  to 
live  with,  or  render  any  services  to,  his  step- 
f.ither.  He  was  at  liberty,  if  he  saw  fit,  to 
abandon  the  borne  and  seel^  employment 
and  advancement  elsewhere.  It  appears, 
however,  that  he  lived  with  the  deceaseu  as 
a  member  of  his  family,  and  performed  all 
the  duties  of  a  son ;  that  his  stepfather  re- 
lied on  him  in  a  large  measure  to  manage 
his  business;  that  the  plaintiff  worlced  on 
the  farm  and  contributed  materially  to  the 
accumulation  of  the  property  In  question; 
that  in  consideration  of  the  agreement  he 
refrained  from  entering  a  congenial  and  prof- 
itable employment,  one  In  which  he  could 
have  obtained  a  business  education,  and 
which  offered  him  every  opportunity  for  ma- 
terial advancement ;  that  he  practically  car- 
ried on  the  work  of  the  farm  until  he  was 
21  years  of  age;  that,  after  the  death  of 
his  mother,  he  returned  again  to  live  with, 
and  assist,  his  stepfather,  who  insisted  that 
he  could  not  get  along  without  him,  where  he 
remained  for  about  a  year.  In  fact,  we  are 
unable  to  see  what  more  the  plaintiff  could 
have  done  to  have  fully  performed  the  agree- 
ment In  question  on  his  part. 

We  therefore  find  upon  the  Issues  joined 
generally  for  the  plaintiff,  and  that  he  is 
entitled  to  a  specific  performance  of  the  con- 
tract as  prayed  for  by  his  petition. 

The  Judgment  of  the  district  court  is  there- 
fore reversed,  and  the  cause  is  remanded, 
with  directions  to  that  court  to  enter  a  de- 
cree In  favor  of  the  plaintiff,  as  prayed  for 
in  his  petition,  and  in  accordance  with  the 
views  expressed  In  this  opinion. 

Reversed   and    remanded. 

ROOT,  J.,  not  voting.  LETTON  and  FAW- 
CETT,  JJ.,  not  sitting. 


WILSON  et  al.  v.  WILSON  et  aL 
(No.  15.422.) 

(Supreme  Court  of  Nebraska.     Oct.  9,  1909.) 

1.  Acknowledgment  (J  4*)  —  Nbcessity  to 
Validity  of  Deed. 

A  deed  to  real  estate,  executed  and  deliver- 
ed, is  valid  between  the  parties,  tliough  not  law- 
fully acknowledged  nor  witnessed,  and  is  suffl- 
cient  to  convey  the  land  described  therein,  with 
the  exception  of  the  homestead  of  the  grantor. 

[Ed.  Note.— For  other  cases,  see  Acknowledg- 
ment, Cent.  Dig.  S  13;   Dec.  Dig.  i  4.*] 


2.  Deeds  (§  208*)— Softiciexct  of  Evidehc* 
—Delivery. 

Ejvidence  examined,  its  substance  stated  in 
the  opinion,  and  held  sufficient  to  sustain  the 
finding  of  the  district  court  that  the  deed  in 
question  was  in  fact  delivered  to  the  grantee. 

[Eld.  Note.— For  other  rases,  see  Deeds,  Cent. 
Dig.  {8  625-632;    Dec.  Dig.  |  208.»] 

3.  Fo>i>fER  OPiPfiow  Modified. 

Former  opinion.  83  Neb.  5(>2.  120  N.  W. 
147,  modified,  and  our  former  judgment  adher- 
ed to. 

(S.vilabus  by  the  Court.) 

4.  Husband  and  Wife  (S  6*)— Conveyance— 
Validity. 

The  sole  deed  of  a  husband,  conveying  the 
homestead  and  other  land,  is  void  only  as  to  the 
homestead,  and  is  a  good  conveyance  as  to  the 
other  land. 

[Ed.  Note. — For  other  cases,  see  Husband  and 
Wife.  Cent.  Dig.  {  10 ;   Dec.  Dig.  §  0.*] 

5.  Deeds  (J  194*)- Delivery. 

l*osse.'«sion  of  a  deed  by  grantee,  in  the  ab- 
sence of  opposing  circumstances,  is  prima  facie 
evidence  of  delivery,  and  the  burden  is  on  him 
who  disputes  the  presumption. 

[Ed.  Note.— For  other  case!i.  see  Deeds.  Cent. 
Dig.  $  577;    Dec.  Dig.  §  194.*] 

3.  Deeds  (§  194*)- Delivebt. 

It  will  not  he  presumed,  in  the  absence  of 
any  evidence,  that  a  son  would  commit  the  un- 
lawful act  of  abstracting  from  bis  father's  pa- 
pers a  deed  which  bad  not  been  delivered  and 
publish  the  same  as  the  genuine  deed  of  bia 
father. 

[Ed.  Note.— For  other  cases,  see  Deeds,  Cent. 
Dig.  i  574 ;    Dec  Dig.  {  194.*] 

On  rehearlnfT.  Formw  opinion  modified, 
and  judgment  of  the  district  court  affirmed. 

For  former  opinion,  see  83  Neb.  562,  120 
N.  W.  147. 

BABNES,  3.  Onr  former  opinion  in  thla 
case  will  be  fotind  In  83  Neb.  562,  120  N.  W. 
147,  to  which  reference  is  made  for  a  com- 
prehenslve  statement  of  the  facts.  It  was 
contended  on  the  rehearing  that  the  deed 
from  Charles  Wilson,  deceased,  to  Bartus 
Wilson,  the  defendant  herein,  which  was 
witnessed  by  no  one  but  the  wife  of  the 
grantor,  was  void,  because  she  was  Incompe- 
tent to  act  In  that  capacity,  and  that  we 
erred  in  our  former  opinion  by  holding  that 
her  certificate  of  acknowledgment  to  that 
Instrument  subsequently  made  rendered  It 
a  valid  conveyance  of  the  real  estate  In  ques- 
tion. Upon  a  careful  reconsideration  of  this 
case  we  find  that  the  anthorltles  are  some- 
what divided  upon  that  question ;  but,  as  the 
Judgment  of  the  trial  court  must  be  affirmed 
upon  other  grounds,  we  express  no  opinion 
on  this  point.  It  will  be  observed  that  this 
is  an  action  at  law  to  obtain  an  order  of  par- 
tition. During  the  progress  of  the  trial  it 
was  found  that  the  homestead  of  the  de- 
ceased was  Included  in  the  deed,  and  It  was 
conceded  that  as  to  that  part  of  the  prem- 
ises the  conveyance  was  void.  Thereupon, 
In  order  to  proceed  with  the  trial,  the  par- 
ties stipulated  that  the  40  acres  on  which 
the  family  dwelling  bouse  was  situated  at 


•»or  other  emsea  le*  same  topic  and  cecUon  NUMBER  In  Doc.  ft  Am.  Digs.  1807  to  date,  ft  Roportar  ladaxw 


Digitized  by  VjOOQ  IC 


Neb.) 


WILSON  ▼.  WILSON. 


857 


the  time  the  conveyance  was  made  should 
constitute  the  homestead,  and  at  the  con- 
clusion of  the  trial  the  court  found  that  the 
plaintiffs  were  entitled  to  have  the  home- 
stead partitioned,  but  that  the  remainder  of 
the  premises  was  conveyed  by  the  deed  in 
question  to  the  defendant  Bartus  Wilson,  and 
judgment  was  rendered  accordingly. 

Counsel  first  claims  that  the  deed  Is  void 
for  want  of  proper  acknowledgment.  We 
think  that  this  contention  cannot  be  sustain- 
ed. In  Harrison  v.  McWhlrter,  12  Neb.  152, 
10  N.  W.  545,  It  was  said:  "A  deed  of  real 
estate,  executed,  witnessed,  and  delivered, 
is  effectual  to  pass  title,  though  not  lawfully 
acknowledged  or  recorded."  In  Horbach  v. 
Tyrrell,  48  Neb.  514,  67  N.  W.  485,  489,  87  L. 
R.  A.  434,  we  held  that  the  functions  of  an 
acknowledgment  are  twofold:  First,  to  au- 
thorize the  deed  to  t>e  given  in  evidence  with- 
out further  proof  of  its  execution;  and,  sec- 
ond, to  entitle  It  to  be  recorded.  And  un- 
less the  real  estate  conveyed  or  incumbered 
is  the  homestead  of  the  grantors,  an  ac- 
knowledgment Is  not  essential  to  the  validity 
of  the  conveyance.  This  rule  was  followed 
and  approved  in  Holmes  v.  Hull,  50  Neb. 
656,  70  N.  W.  241 ;  Linton  v.  Cooper,  53  Neb. 
400,  73  N.  W.  731;  Savhigs  &  Loan  Ass'n 
V.  Strlne,  58  Neb.  183,  78  N.  W.  877;  Morris 
V.  Linton,  61  Neb.  537,  85  N.  W.  565.  As 
between  the  parties,  in  absence  of  any  statu- 
tory provision  making  the  acknowledgment 
an  essential  part  of  the  instrument,  the  title 
passes  immediately  upon  the  execution  and 
delivery  of  the  deed,  and  as  against  the 
grantor,  his  heirs,  and  devisees  such  Instru- 
ment is  as  valid  without  acknowledgment 
as  with  it  In  other  words,  there  Is  no  neces- 
sity for  acknowledgment  as  between  the 
parties.  1  Cyc.  514.  This  rule  is  supported 
by  many  cases  decided  by  this  court.  There 
is  no  statute  in  this  state  requiring  an  ac- 
knowledgment of  a  deed  to  real  estate  which 
does  not  convey  the  homestead,  except  to 
entitle  it  to  be  recorded;  and  we  are  of 
opinion  that  the  district  court  upon  this 
point  properly  held  that  the  deed  in  ques- 
tion was  sufficient  to  convey  all  of  the  prem- 
ises described  therein,  except  the  homestead 
of  the  grantor. 

It  is  next  contended  that  the  wife  of  the 
grantor  was  an  incompetent  witness  to  the 
execution  of  the  deed  in  question,  and  as 
it  was  witnessed  by  her  alone,  it  is  void, 
and  conveys  no  title  to  the  defendant 
Whether  the  wife  of  the  grantor  was  a  com- 
petent witness  to  the  execution  of  the  deed 
need  not  now  be  determined.  In  Prout  v. 
Burke,  61  Neb.  24,  70  N.  W.  512,  it  was  held 
that  a  mortgage,  not  on  the  homestead,  exe- 
cuted and  delivered,  is  valid  between  the 
parties,  though  not  lawfully  acknowledged 
nor  witnessed.  In  Holmes  v.  Hull,  50  Neb. 
636,  70  N.  W.  241,  it  was  said:  "A  mortgage 
upon  real  estate  other  than  the  homestead, 
executed  and  delivered  by  the  mortgagors, 
la  valid  iMtween  the  parties  and  those  liav- 


ing  knowledge  of  its  existence,  although  not 
lawfully  acknowledged  or  witnessed."  In 
Pearson  v.  Davis,  41  Neb.  611,  59  N.  W.  885, 
we  held  that  a  deed  to  real  estate,  executed, 
acknowledged,  and  delivered  by  the  grantor, 
is  valid  between  the  parties,  though  not  wit- 
nessed. We  think,  therefore,  we  may  say  safe- 
ly that  an  unacknowledged  and  unwitnessed 
deed,  if  executed  and  delivered,  is  sufficient 
to  convey  title;  that  its  validity  cannot  be 
questioned  by  the  parties  or  their  heirs  at 
law,  and  we  have  no  hesitancy  in  applying 
the  rule  In  this  case,  because  the  plaintifCs 
are  none  other  than  the  legal  heirs  of  the 
grantor. 

Plaintiffs'  further  contention  Is  that,  the 
deed  being  void  as  to  the  homestead,  it  is 
void  as  to  the  remainder  of  the  land  de- 
scribed therein.  Upon  this  point  It  was  said 
In  our  former  opinion:  "Thompson  in  his 
work  on  Homesteads  &  Exemptions,  §S  476, 
477,  announces  the  rule  adopted  by  a  great 
majority  of  the  courts  that  a  deed  or  mort- 
gage executed  by  the  husband  alone,  which 
Cpnveys  the  homestead  and  other  property. 
Is  void  only  as  to  the  homestead  estate,  and 
operates  as  a  good  conveyance  of  property 
in  excess  of  the  homestead.  This  Is  the  view 
seemingly  taken  by  this  court  in  Whitlock 
V.  Goason,  35  Neb.  829,  68  N.  W.  980."  This 
rule  was  again  recognized  In  Teske  v.  Dltt- 
berner,  70  Neb.  544,  98  N.  W.  57,  113  Am. 
St  Rep.  802.  We,  therefore,  adhere  to  the 
rule  announced  Id  our  former  judgment  up- 
on this  point 

Plaintiffs  also  contend  that  the  district 
court  erred  In  finding  that  the  deed  In  ques- 
tion was  delivered  by  the  grantor  to  the  de- 
fendant Bartus  Wilson.  It  Is  conceded  that 
the  possession  of  a  deed  by  the  grantee  in 
absence  of  opposing  circumstances  is  prima 
facie  evidence  of  delivery,  and  the  burden 
of  proof  is  on  him  who  disputes  this  pre- 
sumption (Roberts  v.  Swearlngen,  8  Neb.  363, 
1  N.  W.  306 ;  Brittaln  v.  Work,  13  Neb.  347, 
14  N.  W.  421) ;  but  it  is  insisted,  however, 
that  the  circumstances  disclosed  by  the  rec> 
ord  In  this  case  overcome  the  presumption. 
The  circumstances  relied  upon  are  tlie  confi- 
dential relation  between  the  parties,  and 
the  fact  that  at  the  time  the  deed  was  ex- 
ecuted the  defendant  and  the  grantor,  who 
were  father  and  son,  were  living  together 
in  the  same  house,  or  as  one  family,  and  the 
opportunity  was  thus  offered  to  the  defend- 
ant to  surreptitiously,  and  without  the  knowl- 
edge of  the  grantor,  obtain  possession  of  It 
An  examination  of  the  record,  however,  dis- 
closes that  at  or  about  the  time  of  the  ex- 
ecution of  the  deed  the  defendant  made  a 
life  lease,  to  his  mother,  of  the  premises  in 
question.  It  also  appears  that  a  part  of  the 
consideration  for  the  conveyance  was  the 
agreement  of  the  defendant  to  care  for,  sup- 
port, and  maintain  bis  father  and  mother 
so  long  as  they  should  live;  and  it  is  not 
claimed  or  contended  that  he  did  not  fully 
and  properly  perform  his  part  of  the  agree- 


Digitized  by  LjOOQ  l€ 


858 


122  NORTHWESTEEN  REPORTER. 


(Keb. 


meiit  Again  !t  wQl  not  be  piesnmed,  In  the 
absence  of  any  evidence,  tliat  the  defendant 
would  commit  an  unlawful  act  by  abstract- 
iDg  from  bis  father's  papers  a  deed  which 
had  nerer  been  delivered,  and  publish  the 
same  as  the  genuine  deed  of  bis  father.  It 
must  also  be  borne  in  mind  that  the  deed 
In  question  was  executed  on  the  6th  day  of 
May,  1891;  that  the  defendant  from  that 
time  until  the  death  of  his  father  and  moth- 
er continued  to  reside  upon  the  premises  In 
question,  and  thereafter  exercised  all  his 
right  of  ownership  and  dominion  over  the 
same;  that  bis  mother  died  in  1894;  and 
that  he  remained  in  undisturbed  possession 
thereof  without  claim  of  ownership  on  the 
part  of  the  plaintiflTs  until  the  30th  day  of 
December,  1904^  when  this  action  was  com- 
menced. 

It  further  appears  that  the  plaintiff  Arthur 
Wilson  since  the  execution  of  the  deed  in 
question  has  rented  the  premises  from  the 
defendant,  and  paid  him  the  rent  therefor, 
thus  tacitly  acknowledging  his  ownership. 
He  also  testified  on  the  trial  that  be  earn 
the  deed  some  time  after  the  month  of  Oc- 
tober, 1893.  Finally,  we  find  from  the  record 
that  James  Wilson,  who  was  made  a  party 
plaintiff  in  this  case,  without  bis  knowledge 
or  consent,  testified  upon  the  trial  that  when 
the  estate  was  probated,  which  was  some 
time  In  the  fall  of  1893,  he  had  a  conversa- 
tion with  one  of  the  heirs.  In  which  his  as- 
rtstance  was  solicited  to  obtain  a  share  of 
the  property.  His  testimony  is  as  follows: 
"He  wanted  me  to  go  down.  He  said  that 
Bart  claimed  to  have  a  deed  for  the  place, 
and  said  he  thought  that  we  should  all  have 
an  equal  share  in  the  place,  and  he  wanted 
ne  to  go  down  and  help  them  out.  I  told 
him  that  I  thought  Bart  had  earned  the  place 
then,  and  that  as  far  as  I  was  concerned,  I 
was  willing  be  should  have  it ;  that  I  would 
have  nothing  to  do  with  it."  It,  therefore, 
seems  clear  that  the  finding  and  Judgment 
of  the  district  court  that  the  deed  was  In 
fact  delivered  to  the  defendant  is  amply  sus- 
tained, not  alone  by  the  ordinary  presumj)- 
tion  of  delivery,  but  also  by  sufficient  com- 
I)etent  evidence. 

For  the  foregoing  reasons  our  former  opin- 
ion, as  modified  herein,  is  adhered  to,  and 
the  judgment  of  the  district  court  is  affirmed. 


WINKLER  V.  CITY  OF  HASTINGS. 
(No.  15.456.) 

{Supreme  Court  of  Nebraska.     Oct  9,  1909.) 

1.   CORSTITDTIONAI,   LAW    (J   50*)— DETACHINa 

Tkrritoby— Nature  or  Power. 

The  power  to  prescribe  the  conditions  on 
which  territory  may  be  detached  from  a  city 
is  legislative. 

[Ed.  Note.— For  other  cases,  see  Constitutional 
Law,  Dec.  Dig.  i  50.  •] 


2.  OOITSTITDTIONAI.  LAW  A  61*)— BlTCBOACH- 
lONT    ON    LBOISLATIVB    POWEB. 

Where  legislative  power  to  detach  territory 
from  a  city  has  been  delegated  by  statute  to 
the  mayor  and  council,  an  appeal  from  the 
action  of  that  body  in  refusing  to  disconnect 
particular  tracts  cannot  be  made  the  means  of 
transferring  such  power  to  the  district  court. 

[Ed.  Note.— F^r  other  cases,  see  Constitution- 
al Law,  Dec.  Dig.  f  61.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Adams  Comi- 
ty;   Diingan,  Judge. 

Application  by  Charles  Winkler  to  the  may- 
or and  council  of  Hastings  to  sever  lands 
from  the  corporate  limits  of  the  city.  His 
application  was  denied,  and  he  appealed  to 
the  district  court  The  district  court  detach- 
ed the  lands,  and  the  city  appeals.  Judgment 
of  the  district  court  reversed,  and  the  appeal 
from  the  action  of  the  mayor  and  council  dis- 
missed. 

W.  F.  Button  and  Jno.  M.  Ragan,  for  ap- 
pellant   R.  A.  Batty,  for  appellee. 

ROSE,  J.  Several  parcels  of  plaintiff's 
agricultural  land,  each  containing  more  than 
five  acres,  were  detached  from  the  city  of 
Hastings  by  decree  of  the  district  court,  and 
this  is  defendant's  appeal  therefrom. 

In  severing  the  land  fnom  the  municipality 
the  trial  court  assumed  to  exercise  a  power 
conferred  by  section  4  of  the  Hastings  char- 
ter. Oomp.  St  1907,  c.  13,  art  8,  S  4.  Wbm 
the  Legislature  convened  in  1903  that  section 
was  In  this  form:  "The  corporate  limits  of 
such  city  shall  remain  as  heretofore,  and 
the  mayor  and  council  may  by  ordinance  in- 
clude therein  all  the  territory  contiguous 
or  adjacent  which  has  been  by  the  act  au- 
thority or  acquiescence  of  the  owners  buI>- 
divided  into  parcels  containing  not  more  than 
five  acres,  and  the  mayor  and  council  shall 
have  power,  by  ordinance  to  compel  the  own- 
ers of  lands  so  brought  within  the  corporate 
limits  to  lay  out  streets,  ways,  and  alleys 
to  conform  and  be  continuous  with  the 
streets,  ways  and  alleys  of  such  city,  and 
they  may  vacate  any  public  road  heretofore 
established  through  such  land,  when  neces- 
sary to  secure  regularity  In  the  general  sys- 
tem of  its  public  ways."  Comp.  St  1901,  c. 
13.  art.  3,  §  4.  To  the  foregoing  statute  the 
following  provisions  were  added  by  amend- 
ment in  1903 :  "The  mayor  and  council  may 
by  ordinance  exclude  from  the  corporate  lim- 
its of  such  city  any  tract  of  land,  consisting 
of  not  less  than  five  acres,  which  is  used 
exclusively  for  agricultural  or  horticultural 
purposes,  and  which  is  now,  or  hereafter  may 
be  included  within  the  corporate  limits  of 
such  city,  upon  the  application  of  any  own- 
er or  owners  of  any  such  tract  or  tracts  of 
land,  setting  out  a  full  and  complete  descrip- 
tion of  such  land,  and  the  extent  to  which 
it  Is  adjacent  to  the  corporate  limits  of  such 
city,  and  praying  for  its  disconnection  there- 


*For  other  case*  see  MUa*  topic  mui  lecUon  NUMBER  In  Dec.  ft  Am.  Digs.  U07  to  daM,  A  Raportar  ladeias 


Digitized  by  VjOOQ  l€ 


Neb.) 


WINKLER  T.  CITY  OP  HASTINGS. 


859 


from,  being  filed  with  tbe  clt7  derk  of  sacb 
dty,  which  application  shall  be  read  at  large 
at  the  next  regular  meeting  of  the  council  of 
such  dty,  and  a  day  fixed  by  the  mayor  and 
council  of  such  dty  for  a  hearing  thereon, 
at  not  less  than  ten  days  from  said  regular 
meeting  and  within  reasonable  time  there- 
after. Upon  such  hearing  If  by  a  two-third 
vote  of  all  the  members  elected,  the  council 
shall  determine  to  disconnect  such  lands, 
therefrom,  such  lands  shall  thereafter  be 
without  the  corporate  limits  of  such  city.  If 
the  coundl  of  such  dty  deny  the  prayer 
of  such  application  an  appeal  will  lie  to  tbe 
district  court  of  the  county  in  which  such 
dty  Is  situated  as  In  cases  of  appeal  jTrom 
the  board  of  commissioners.  Provided  fur- 
ther, that  the  right  of  such  owner  or  owners 
of  such  tract  or  tracts  of  land  to  make  ap- 
plication in  the  first  instance  to  the  mayor 
and  council  of  such  city  shall  not  be  lost 
or  waived,  because  of  any  delay  In  making 
such  application."  Comp.  St  1907,  e.  13,  art 
3,  {  4;  Sess.  Laws  1903,  p.  230,  c.  IS,  {  1. 

The  original  section  contained  no  provision 
for  disconnecting  territory,  and  the  amend- 
ment supplied  that  feature.  Pursuant  to  Its 
terms  plaintiff  asked  the  mayor  and  coundl 
to  sever  the  lands  In  question  from  the  cor- 
porate limits  Of  Hastings.  His  application 
was  overruled,  and  he  appealed  to  the  dis- 
trict court,  where  the  relief  denied  by  the 
city  was  granted.  Defendant  in  Its  answer 
challenged  the  Jurisdiction  of  the  court,  on 
the  ground  that  the  amendment  is  unconsti- 
tutional, and  this  Is  the  only  question  pre- 
sented here.  Brlefiy  stated,  the  principal 
objection  to  tbe  amendment  Is  that  by  It  the 
Legislature  attempted  to  transfer  to  tbe 
district  court  by  appeal  legislative  power 
delegated  to  the  dty  council.  The  enact- 
ment in  unambiguous  terms  confers  upon  the 
mayor  and  coundl  power  to  detach  from  the 
dty  any  five-acre  tract  used  exclusively  for 
agricultural  or  horticultural  purposes.  The 
method  of  exercising  the  power  delegated  Is 
also  prescribed  by  the  act  Under  Its  terms 
territory  must  be  detached  by  ordinance, 
the  method  usually  employed  by  cities  In 
exercising  legislative  functions.  The  -Legis- 
lature has  not  provided  in  specific  terms  that 
every  tract  of  five  acres  or  more  shall  be 
disconnected  upon  a  finding  that  it  is  used 
exdusively  for  agricultural  or  horticultural 
purposes,  but  the  dty  was  dothed  with  au- 
thority to  legislate  on  that  subject;  the  grant 
being  that  "the  mayor  and  coundl  may  by 
ordinance  exclude  from  the  corporate  limits 
of  such  dty  any  tract  of  land,  consisting  of 
not  less  than  five  acres,  which  is  used  exclu- 
sively for  agricultural  or  horticultural  pur- 
poses." In  other  words,  when  the  amend- 
ment came  from  the  lawmakers,  it  was  not 
a  perfect  enactment  that  all  tracts  of  land 
consisting  of  five  acres  or  more  shall  be 
excluded  from  the  city  limits,  if  they  are  in 
fact  used  exclusively  for  agricultural  or  hor- 


ticultural purposes.  Tbe  Legislature  did  not 
exercise  its  power  to  pass  such  a  law,  but 
delegated  It  to  the  municipal  lawmakers. 
The  authority  thus  granted  to  the  city  has 
never  been  affirmatively  exercised  In  regard 
to  lands  owned  by  plaintiff  within  the  city 
limits.  On  the  other  hand,  his  demand  on 
the  dty  for  such  legislation  was  denied.  Did 
tbe  Legislature  by  authorizing  an  appeal 
from  tbe  mayor  and  council  confer  on  tbe 
district  court  authority  to  disconnect  plaln- 
tUTs  land  from  the  dty?  The  power  of  the 
Legislature  to  make  provision  by  general 
law  for  the  Incorporatioir  of  cities  and  for 
extending  boundaries  or  detaching  territory 
has  been  recognized  by  this  court  In  State 
V.  Dlmond,  44  Neb.  161,  G2  N.  W.  498.  an 
opinion  by  Judge  Post  contains  the  following 
language:  "We  do  not  doubt  the  unlimited 
power  of  the  Legislature,  In  the  absence  of 
constitutional  restriction,  with  respect  to  the 
boundaries  of  municipal  corporations." 

In  municipal  affairs  the  authority  to  ex- 
tend boundaries  is  derived  from  the  same 
source  as  the  power  to  detach  territory.  In 
the  opinion  in  City  of  Wahoo  v.  Dickinson, 
23  Neb.  430,  36  N.  W.  813,  Judge  Maxwell 
said :  "It  will  be  conceded  that  an  arbitrary 
annexation  of  territory  to  a  city  or  town, 
where  the  benefits  to  be  received  by  the  ter- 
ritory annexed  are  not  considered,  can  only 
be  accomplished  by  legislation,  either  by  the 
Legislature  Itself  or  by  a  tribunal  clothed 
with  power  for  that  purpose,  and  that  a 
court  under  our  Ck>n8tItution  could  not  be 
Invested  with  such  legislative  power."  In 
City  of  Hastings  v.  Hansen,  44  Neb.  70^  C3 
N.  W.  34,  the  following  appears  in  an  opin- 
ion by  Commissioner  Ragan :  "Tbe  power  to 
create  municipal  corporations  and  the  power 
to  enlarge  or  restrict  their  boundaries  are 
legislative  powers;  and  it  has  been  doubted 
If  the  Legislature  can  pass  a  valid  act  giving 
the  courts  Jurisdiction  to  disconnect  by  de- 
cree any  part  of  the  territory  of  a  municipal 
corporation  of  the  state,  merely  at  the  suit 
of  the  owner  thereof."  The  power  of  the 
Legislature  to  prescribe  the  conditions  on 
which  municipal  boundaries  shall  be  extend- 
ed or  restricted  Is  recognized  In  the  recent 
case  of  Blsenlus  v.  City  of  Randolph,  118 
N.  W.  127,  where  the  decisions  of  this  court 
on  a  kindred  subject  are  discussed  by  Judge 
Root 

In  the  form  In  which  the  act  amending  sec- 
tion 4  of  the  Hastings  charier  was  passed  In 
1003,  the  grant  conferring  upon  the  mayor 
and  coundl  authority  to  detach  territory  by 
ordinance  was  leglslatlva  In  attempting  to 
confer  the  same  power  upon  the  district 
court  by  direct  appeal  from  the  action  of  the 
mayor  and  council,  if  they  refuse  to  pass  an 
ordinance  detaching  territory  on  demand  of 
a  landowner,  the  Legislature  did  not  observe 
the  following  provisTons  of  the  Constitution : 
"The  powers  of  the  government  of  this  state 
are  divided  into  three  distinct  departments, 
tbe  legislative,  executive  and  Judicial,  and 


Digitized  by 


L-oogle 


860 


122  NORTHWBSTEKN  REPORTEH. 


rKebL 


DO  person  or  collection  of  persons  being  one 
ot  these  departments,  shall  exercise  any  pow- 
er properly  belonging  to  either  of  the  oth- 
ers, except  as  hereinafter  expressly  directed 
or  permitted."  Ck>nst  art  2,  {  1.  This  sec- 
tion of  the  Constitution  prohibits  the  Judicial 
department  from  exercising  any  power  prop- 
erly belonging  to  the  legislative  department, 
and  the  effort  to  confer  upon  the  district 
court  leglsIatlTe  authority  to  sever  agricul- 
tural and  horticultural  lands  from  the  city 
of  Hastings  In  the  manner  described  inval- 
idates the  amendment  to  section  4  of  the 
Hastings  charter.  *  This  conclusion  Is  not  at 
variance  with  former  holdings  to  the  effect 
that  courts  may  be  clothed  with  power  to 
inquire  Into  and  determine  the  existence  of 
conditions  under  which  lands  may  be  annex- 
ed to  or  detached  from  a  city,  pursuant  to 
the  terms  of  a  statute;  nor  does  It  conflict 
with  the  rule  that  one  whose  lands  were  il- 
legally included  within  the  boundaries  of  a 
city  may  in  a  proper  case  obtain  redress  in  a 
proceeding  in  the  nature  of  quo  warranto. 

The  Judgment  of  the  district  court  Is  re- 
versed, and  the  appeal  from  the  action  of 
the  mayor  and  council  dismissed. 

Reversed  and  dismissed. 

REESE,  C  3.,  not  sitting. 


In  re  RIEGER'S  ESTATE. 
RIE6ER  V.  SCHAIBLB  et  al.     (No.  16.127.) 
(Supreme  Court  of  Nebraska.     Oct.  9,   1909.) 

1.  Appeal  and  Ebkob  (§  1097*)— Law  of  the 
Case. 

"The  detprmination  of  questions  presented 
to  the  Supreme  Court  in  an  appellate  proceed- 
ing becomes  the  law  of  the  case,  and  ordinarily 
will  not  be  re-examined  when  the  cause  is  again 
brought  up  for  review."  Leavitt  v.  Bell,  59 
Neb.  595,  81  N.  W.  614. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  4358;   Dec.  Dig.  i  1097.*] 

2.  New  Tbial  (§  102*)  — Newly  Discovebed 
Evidence— FoBOETTiNQ  Evidence. 

"A  new   trial   will   not  be  granted  a  liti- 

fant  on  the  ground  of  newly  discovered  evi- 
ence,  when  it  appears  that  such  evidence  was 
not  produced  at  the  trial  of  the  case  because 
the  litigant  had  forgotten  its  existence."  Upton 
r.  Levy.  39  Neb.  ^1,  58  N.  W.  95. 

[Ed.  Note.— For  other  cases,  see  New  Trial, 
Cent.  Dig.  i  214 ;   Dec.  Dig.  i  102.*] 

3.  New  Tbial  (§   102*)- Newly  Discovebed 
Evidence— Diligence. 

"To  entitle  a  party  to  a  new  trial  on  ac- 
count of  newly  discovered  evidence,  it  is  not 
enough  that  the  evidence  is  material  and  not 
cumulative.  It  must  farther  appear  that  the 
applicant  for  the  new  trial  could  not,  by  the 
exercise  of  reasonable  dili!;ence,  have  discovered 
and  produced  such  evidence  at  the  trial."  Smith 
V.  Hitchcock,  38  Neb.  105,  56  N.  W.  791. 

[Ed.  Note.— For  other  cases,  see  New  Trial, 
Cent.  Dig.  S  210;    Dec.  Dig.  f  102.»] 

4.  Appeal  and  Bbbob  (§8  1002,  1011»)— Re- 
view—Questions  OF  Fact. 

"Where  the  evidence  is  conflicting,  and  the 
judgment   is   supported   by  competent  evidence. 


it  will  not  be  disturbed,  even  though  a  different 
conclusion  might  have  been  reached."  Burwell 
V.  Lashmett,  59  Neb.  605,  81  N.  W.  617. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error.  Omt.  Dig.  |S  3985.  3983;  Dec.  Dig.  H 
1UUS2.  1011.  J 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court.  Richardson 
County ;  Raper,  Judge. 

Application  by  Amelia  Rleger,  widow  of 
Henry  Rleger,  deceased,  for  an  allowance  for 
her  support  and  maintenance.  Carrie  Schal- 
ble  and  others,  heirs,  objected,  and,  the  pro- 
bate court  having  granted  the  allowance  as 
prayed,  they  appealed  to  the  district  court, 
where  Judgment  was  rendered  In  their  favor, 
and  the  widow  appeals.    Affirmed. 

C.  Gillespie  and  Ed.  Falloon,  for  appellant. 
Reavls  &  Reavis,  for  appellees. 

FAWCETT,  J.  Thte  is  the  third  time  this 
case  has  been  before  us  for  consideration. 
The  result  of  our  deliberations  on  the  first 
two  occasions  will  be  found  in  81  Neb.  33, 
115  N.  W.  560,  17  L.  R.  A.  (N.  S.)  866.  and 
81  Neb.  58,  lie  N.  W.  953.  17  L.  R.  A.  (N.  S.) 
866.  After  the  case  was  remanded,  the  dis- 
trict court  evidently  proceeded  upon  the  the- 
ory that  the  law  of  the  case  was  settled  by 
the  two  opinions  Just  referred. to.  In  this  the 
district  court  was  right  Leavitt  v.  Bell,  59 
Neb.  595,  81  N.  W.  614.  Upon  the  trial  the 
court  called  a  Jury  to  determine  the  ques- 
tions of  fact  In  controversy.  The  case  was 
submitted  to  the  Jury  upon  Instructions, 
which  are  not  excepted  to  by  uny  of  the  par- 
ties. Two  special  findings  were  submitted 
and  answered  by  the  Jury,  viz.:  "(1)  Waa 
the  contract  which  was  entered  Into  between 
Henry  Rieger  and  Amelia  Lawler  entered  In- 
to before  or  after  the  marriage  of  said  par- 
ties? Ans.  Before  marriage.  (2)  Was  the 
general  purport  of  the  contract  understood  by 
Amelia  Lawler  at  the  time  she  signed  it? 
Ans.  Yes."  The  Jury  also  returned  a  gener- 
al verdict  In  favor  of  the  defendants.  A 
motion  for  a  new  trial  was  filed,  and  subse- 
quently a  second  motion  for  a  new  trial,  on 
the  ground  of  newly  discovered  evidence  was 
submitted.  Both  motions  were  overruled,  and 
Judgment  entered  in  favor  of  defendants, 
from  which  this  appeal  Is  prosecuted.  No 
formal  assignment  of  errors  was  filed  in 
this  court,  and  no  error  in  the  admission  or 
exclusion  of  evidence  Is  argued  in  appellant's 
brief.  The  only  error  of  law  which  can  be 
considered  as  expressly  reserved  by  api>el- 
lant  is  under  the  fifth  subdivision  of  their 
brief,  which  concludes  with  the  statement 
that  it  was  error  for  the  trial  court  to  deny 
the  motion  for  a  new  trial  on  the  ground  ot 
newly  discovered  evidence.  It  follows  from 
what  has  been  said  that  the  only  questions 
for  consideration  now  are:  (1)  Did  the  court 
err  in  overruling  the  motion  for  a  new  trial 
on  the  ground  of  newly  discovered  evidence? 


•For  other  caaea  see  same  topic  and  section  NUMBER  >o  Dec.  &  Am.  Digs.  1907  to  date,  ft  Reporter  ladezea 


Digitized  by  VjOOQ  l€ 


Neb.) 


m  RE  BIEGEB'S  ESTATE. 


861 


and  (2)  Is  the  Judgment  ot  the  court  sustain- 
ed by  sufiSclent  evidence? 

Without  determining  the  question  as  to 
whether  or  not  the  evidence  of  the  newly  dis- 
covered witness  would  hare  been  competent 
which  we  regard  as  doubtful,  we  think  It  Is 
clear  that  no  such  diligence  was  shown  as 
would  entitle  plaintiff  to  a  new  trial  upon 
that  ground.  The  witness  whose  testimony 
they  desired  to  present  makes  affidavit  to  the 
fact  that  she  was  present  at  the  time  the  an- 
tenuptial agreement  was  signed  by  the  prin- 
cipals thereto;  that  she  saw  It  signed,  and 
heard  statements  made  by  the  parties  at  the 
time.  If  this  is  true,  then  plaintiff  knew  of 
her  presence.  That  she  did  know  of  her 
presence  is  not  negatived  by  plaintiff  In  her 
own  affidavit.  She  simply  alleges  that  "by 
reason  of  her  age  and  the  lapse  of  time  she 
was  unable  to  recollect  all  that  took  place  in 
said  store  at  the  time  said  so-called  ante- 
nuptial agreement  was  signed,  nor  could  she, 
for  the  reason  above  stated,  recollect  who 
all  were  present,  and  she  did  not  recollect 
at  the  time  she  testified,  or  at  any  time  she 
may  have  consulted  her  attorneys,  that  Kate 
Rleger  was  in  said  store,  and  she  only  learn- 
ed that  Kate  Rieger  was  In  said  store  at  the 
time  said  agreement  was  signed  from  her  at- 
torney Edwin  Falloon,  who  told  her  in  bis 
office  some  time  after  the  rendition  of  the 
Judgment  in  this  case^  and  after  the  18th  day 
of  October,  1908."  She  further  states  that 
"since  the  controversy  arose  all  the  defend- 
ant heirs  in  this  action  have  been  bitter  par- 
tisans, and  she  naturally  inferred  from  that 
fact  that  the  newly  discovered  witness,  the 
wife  of  one  William  M.  Rieger,  would  be 
hostile  to  her  interest,  and  would  refuse  to 
tell  her  anything,  even  If  she  knew  anything, 
and,  she  not  believing  that  she  knew  anything 
about  this  case,  she  never  so  much  as  asked 
or  inquired  of  her  what  knowledge  she  may 
have  had  of  it"  The  affidavit  of  Mr.  Fal- 
loon, senior  counsel  for  plaintiff,  was  also  fil- 
ed. In  which  he  states:  "That  at  one  time  he 
asked  Kate  Rieger,  wife  of  William  F.  Rie- 
ger, the  newly  discovered  witness,  what  she 
knew  about  this  case,  to  which  she  replied 
that  she  did  not  want  to  be  drawn  into  the 
controversy,  and  declined  to  discuss  the  mat- 
ter with  this  affiant;  that  at  the  time  this 
conversation  took  place,  this  newly  discover- 
ed witness  was  a  client  of  this  affiant  and 
both  she  and  this  affiant  were  attempting  to 
effect  a  reconciliation  between  this  newly 
discovered  witness  and  her  husband,  William 
M.  Rieger,  and  out  of  consideration  for  the 
feelings  of  this  newly  discovered  witness, 
this  affiant  forbore  to  pursue  the  Inquiry 
any  further,  believing  at  the  time  that  she 
knew  nothing  of  any  importance,  and  that 
the  further  Inquiry  on  the  part  of  this  affiant 
would  not  only  be  Insolent,  but  in  a  measure 


fi  breach  of  the  confidential  relations  that 
existed,  as  attorney  and  (Alent  between  affi- 
ant and  said  newly  discovered  witness."  We 
think  this  showing  not  only  falls  to  establish 
sufficient  diligence  on  the  part  of  plaintiff 
and  counsel,  but  affirmatively  shows  a  failure 
to  make  diligent  inquiry  at  a  time  when  It 
might  have  elicited  the  desired  information. 
The  relation  of  attorney  and  client  then  exist- 
ing between  counsel  and  Kate  Rieger  did 
not  preclude  counsel's  pushing  his  Inquiry  of 
Mrs.  Rieger  as  to  the  transactions  concern- 
ing the  execution  of  the  antenuptial  agree- 
ment In  controversy.  We  think  the  state- 
ment in  his  affidavit  that  Mrs.  Rieger  at  that 
time  said  to  him  "that  she  did  not  want  to 
be  drawn  into  the  controversy,  and  declined 
to  discuss  the  matter''  with  him,  was  notice 
of  the  fact  that  she  had  some  knowledge  of 
the  matter  about  whicA  be  was  Inquiring. 
If  she  had  had  no  knowledge,  she  would  not 
have  hesitated  to  say  at  once  that  she  knew 
nothing  about  the  matter.  Without  pursu- 
ing the  subject  further,  we  think  the  trial 
court  did  not  err  in  overruling  the  motion  for 
a  new  trial.  Upton  v.  Levy,  30  Neb.  331,  58 
N.  W.  95 ;  Smith  v.  Hitchcock,  38  Neb.  105, 
56  N.  W.  791. 

The  question  of  the  sufficiency  of  the  evi- 
dence was  fairly  submitted  to  the  Jury  un- 
der Instructions  which,  as  we  have  said,  were 
not  excepted  to.  As  the  Jury  were  acting  in 
an  advisory  capacity  only,  possibly  it  was 
not  necessary  to  note  exceptions  to  the  In- 
structions ;  but  evKi  if  the  Jury  were  acting 
In  such  capacity  only,  the  court  seems  to  have 
been  satisfied  with  their  findings  of  fact  In 
the  case,  and  to  have  adopted  the  same  and 
rendered  Judgment  thereon.  These  findings, 
whether  they  be  considered  as  by  the  Jury  or 
the  court  are  based  upon  conflicting  evidence, 
which  possibly  would  have  sustained  a  find- 
ing and  Judgment  either  way.  In  such  a  case 
this  court  cannot  Interfere.  Burwell  Irriga- 
tion Co.  v.  Lashmett  59  Neb.  605.  81  N.  W. 
617. 

The  question  as  to  whether  or  not  plaintiff 
should  l>e  permitted  to  revoke  her  election  in 
the  county  court  and  take  under  the  will, 
and  the  further  question  as  to  plalntlETs 
right,  If  any,  In  the  homestead  of  her  de- 
ceased husband,  have  no  place  in  the  case 
before  us  and  are  not  considered. 

We  are  urged  to  overrule  our  former  Judg- 
ment in  115  N.  W.  560,  and  to  adhere  to  the 
decision  in  Fellers  v.  Fellers,  64  Neb.  694,  74 
N.  W.  1077.  Fellers  v.  Fellers  was  fully  con- 
sidered, and  deliberately  overruled  in  115  N. 
W.  560,  and  upon  a  reconsideration  that  de- 
cision was  adhered  to  in  116  N.  W.  958.  We 
must  therefore  decline  to  farther  consider 
Fellers  v.  Fellers. 

Finding  no  error  in  the  record,  the  Judg- 
ment of  the  district  court  is  affirmed. 


Digitized  by 


Google 


862 


122  NORTHWESTERN  REPORTER. 


(Neb. 


RASMUSSEN  t.  BI/UST  et  aL    (No.  16,514.) 
(Supieme  Court  of  Nebraska.     Oct.  9,  1909.) 

1.  Watebs  awd  Wateb  Coubses  (J  21*)— Ac- 
quisition OF  RiouTB  IN  Public  Lands— 

DltCH£S. 

One  who  has  constructed  upon  the  vacant 
public  lands  of  the  United  States  a  system  of 
reservoirs  and  ditches  for  the  distribution  of 
water  appropriated  by  him  for  irrigation  pur- 
poses, and  hits  secured  the  approval  of  his  iilan 
and  appropriation  by  the  state  board  of  irriga- 
tion, and  was  using  his  said  reservoirs  and  ditch- 
es for  the  storage  and  distribution  of  such  wa- 
ters before  said  lands  are  entered,  has  a  vested 
and  accrued  right  within  the  meaning  of  sections 
2339  and  2340  of  the  Revised  Statutes  of  the 
United  States  (U.  S.  Comp.  St.  1901,  p.  143'0. 
[Ed.  Note. — For  other  cases,  see  Waters  and 
Water  Courses,  Cent  Dig.  i  14;  Dec.  Dig.  § 
21.*] 

2.  Watebb  and  Water  Coubses  (S  21*)— Ac- 
quisition OP  liiGiiTS  IN  Pubuo  Lands- 
Subsequent  Entries. 

If  such  improvements  have  been  made  with 
the  tacit  or  express  consent  of  the  entryman  up- 
on lands  of  the  United  States  that  have  been 
entered  as  a  homestead,  and  the  entryman  there- 
after relinquishes  bis  entry  or  it  is  canceled  by 
the  United  States,  and  the  said  improvements 
are  in  actual  use  by  the  irrigator  under  the  au- 
thority and  with  the  approval  of  the  state  board 
of  irrigation,  a  subsequent  entryman  takes  said 
lands  subject  to  a  right  of  way  for  said  ditches 
and  the  use  b^  the  irrigator  of  the  land  covered 
by  the  reservoir. 

[Ed.  Note.— For  other  cases,  see  Waters  and 
Water  Courses,  Cent  Dig.  |  14;  Dec.  Dig.  { 
^1.  J 

3.  Waters  and  Wateb  Coubses  (J  12*)— Ac- 
quisition OF  Rights  in  Public  Lands— 
Ibbioated  Lands— Failubb  to  File  Map. 

The  failure  of  the  irrigator  to  file  a  map  in 
the  land  ofiice  and  to  secure  the  approval  of  the 
Secretary  of  the  Interior  in  accordance  with  the 
act  of  Congress  approved  March  3,  1891  (Act 
March  3.  1S)1,  c.  501,  8  18,  26  Stat  1101  [U.  S. 
Comp.  St  1901,  p.  1570]),  entitled  "An  act 
to  repeal  timber-culture  laws,  and  for  other  pur- 
poses," and  the  acts  supplementary  thereto, 
does  not  destroy  the  privileges  protected  by  sec- 
tions 2339,  2340.  Rev  St  U.  S.  (U.  S.  Comp. 
St.  1901,  p.  1437). 

•     [Ed.  Note.— For  other  cases,  see  Waters  and 
Water  Courses,  Dec.  Dig.  {  12.*] 

4.  Watebs  and  Wateb  Coubses  ({  21*)— Ac- 
quisition OP  Rights  in  Public  Lands — 
Deed  by  Entrtman. 

A  deed  executed  by  an  entryman  before  be 
Is  entitled  to  a  receiver's  final  receipt  and  pur- 
porting to  vest  the  grantee  with  a  right  of  way 
over,  and  the  privilege  of  constructing  and  main- 
taining a  reservoir  upon,  the  lands  of  the  entry- 
man,  will  not  vest  the  grantee  with  any  right 
against  a  subsequent  entry  of  the  land  under 
the  acts  of  Congress,  unless  such  grantee,  before 
the  last  entry,  shall  have  constnicted  said  im- 
provements, and  was  using  them  under  such 
circumstances  as  to  entitle  him  to  protection  un- 
der the  laws  of  this  state. 

[Ed.  Note. — For  other  cases,  see  Waters  and 
Water  Courses,  Cent  Dig.  g  14;  Dec.  Dig.  g 
21.*] 

(Syllabus  by  the  Court) 

On  rehearing.  Former  opinion  set  aside, 
aud  judgment  of  the  district  court  reversed 
and  cause  remanded. 

For  former  opinion,  see  120  N.  W.  184. 


J.  B.  Porter,  for  appellant.    A.  H.  Morrls- 
sey,  for  appellees. 

ROOT,  3.  This  case  Is  submitted  on  re- 
hearing. OuF  former  opinion  is  reported  In 
83  Neb.  678,  120  N.  W.  184.  Tbe  cause  was 
submitted  to  tbe  district  court  upon  the 
pleadings,  the  affidavits  of  witnesses,  and 
copies  of  public  records,  A  bill  of  exceptions 
containing  tbe  original  evidence  adduced  IS 
before  us.  It  Is  a  difficult  undertaking  to 
sift  the  conflicting  statements,  and,  without 
tbe  aid  of  cross-examination,  establish  the 
controverted  facts.  Were  it  not  for  the  pub- 
lic importance  of  the  questions  of  law  in- 
volved, we  would  affirm  the  Judgment  be- 
cause of  tbe  condition  of  the  record.  The 
land  in  controversy  is  in  Dawes  county  and 
water  district  No.  2.  Section  8,  art  2,  c 
93a,  Comp.  St  1909.  Rasmussen,  tbe  plain- 
tiff, has  resided  in  said  county  and  has  own- 
ed real  estate  therein  for  many  years  next 
preceding  the  institution  of  this  suit  In 
1898  or  1899  he  appropriated  tbe  waters  in 
the  Rig  Cottonwood  creek  and  In  tbe  south 
branch  of  the  Cottonwood  creek  for  tbe  Ir- 
rigation of  lands  in  sections  18,  19,  28,  29, 
and  33,  town  33,  range  51,  in  said  county, 
and  other  lands,  and  bis  appropriation  was 
duly  approved  by  the  state  board  of  irriga- 
tion August  3,  1899.  In  September,  1899,  he 
made  a  further  appropriation  for  the  benefit 
of  said  lands,  adding  six  storage  reservoirs 
to  bis  scheme,  and  speclflcally  referred  to 
flood  waters  as  a  source  of  supply.  This  ap- 
proprlKtion  was  approved  by  tbe  state  board 
of  Irrigation  February  21,  1900.  Plaintiff  al- 
so Joined  with  one  Carlson  in  appropriating 
water  from  Sand  creek  for  the  benefit  of 
lands  not  above  described,  but  Included  in 
Rasmussen's  Irrigation  system.  In  the  pros- 
ecution of  the  work  Involved  In  the  construc- 
tion of  said  plant  plaintiff  has  dug  and  con- 
tinuously extended  necessary  ditches  and  has  ' 
constructed  at  least  two  of  said  reservoirs. 
The  state  board  of  irrigation  has  extended 
tbe  time  fixed  by  it  for  tbe  completion  of 
said  irrigation  system,  so  that  upon  tbe  In* 
stitution  of  this  suit  Rasmussen  was  not  In 
default  in  complying  with  tbe  exactions  of 
said  board.  In  1900,  when  Rasmussen  com- 
menced said  work,  there  was  but  little,  if 
any,  land  along  tbe  route  of  tbe  main  ditches 
that  had  not  been  entered  under  the  home- 
stead law.  Tbe  northeast  quarter  of  sec- 
tion 32,  town  S3,  range  51,  was  vacant  at 
said  time.  The  northeast  quarter  of  section 
20,  Involved  in  this  suit,  bad  l)een  entered  as 
a  homestead,  and  said  entry  was  canceled 
June  17,  1904.  Tbe  southeast  qurrter  of  said 
section  had  been  entered  under  tbe  home- 
stead act  by  Isabella  Ihrig,  who  thereafter 
married  Cephas  Ross.  lier  homestead  entry 
was  canceled  April  14,  1904.  John  F.  Uow- 
ard  entered  the  southwest  quarter  of  said 
section  28  in  1890,  and  filed  a  relinquishment 


•For  otber  cues  see  tame  topic  and  section  NUMBER  In  Dec.  4t  Am.  Dig*.  1907  to  dats,  .*  Raportar  Indazes 


Digitized  by 


L-oogle 


Neb.) 


BASHUSSEN  t.  BLUST. 


863 


of  bis  daim  in  January,  1904.  In  February, 
1900,  Mrs.  Ross,  n6e  Ibrlg,  and  busband, 
conveyed  to  plaintiff  a  rigbt  of  way  for  bis 
irrigation  ditcbes  across,  and  tbe  rigbt  to 
construct  and  maintain  a  reservoir  upon, 
tbe  sontbeast  quarter  of  said  section  29.  In 
Joly,  1904,  defendant  August  Blust  entered 
the  east  balf  of  said  section  29  under  the' 
"Klnkead"  act  (Act  April  28,  1004,  c.  1801, 
33  Stat  547  [U.  S.  Comp.  8L  Supp.  1907,  p. 
470]),  and  thereafter  released  tbe  southeast 
quarter  of  tbe  southeast  quarter  thereof. 
The  defendant  Anton  Blust  thereafter  enter- 
ed said  40  in  connection  with  tbe  northeast 
quarter  of  section  32,  and  the  southwest 
quarter  of  said  section  28,  under  said  act 
of  Congress.  August  Blust  for  years  bad 
owned,  and  still  owns,  tbe  northwest  quar- 
ter of  section  28.  PlaintilTs  rigbt  to  main- 
tain ditches  across  all  of  tbe  aforesaid  tracts 
of  land  and  to  construct  and  maintain  reser- 
voirs thereon  is  involved  in  this  suit.  In 
February,  1901,  Rasmussen  prepared  a  map, 
showing  bis  proposed  irrigation  system,  and 
filed  it  in  tbe  United  States  Land  Office  at 
Alliance,  so  that  he  might  secure  the  benefits 
of  Act  Cong.  March  3,  1801,  c.  561,  f  18,  26 
Stat.  1101  (D.  S.  Comp.  St.  1001,  p.  1570). 
The  evidence  indicates  that  this  application 
was  forwarded  to  tbe  Commissioner  of  Pub- 
lic Lands,  and  by  that  official  was  returned 
for  corrections.  Plaintiff  attempted  to  mali:e 
tbe  necessary  alterations,  and  on  the  0th  day 
of  April,  1002,  refiled  tbe  application  and 
map.  June  13,  1002,  the  documents  were 
returned  to  the  land  office  as  unsatisfactory 
and  incomplete.  Rasmussen  testified  that  be 
was  not  notified  of  this  fact,  but  the  officers 
of  tbe  land  office  seem  to  have  l>een  satisfied 
that  Rasmussen  had  notice,  and,  as  he  did 
not  comply  with  their  requisitions,  Ms  ap- 
plication was  treated  by  tbe  Land  Depart- 
ment as  abandoned. 

1.  Upon  tbe  facts  Just  related  our  former 
opinion  held  that  plaintiff  never  secured  any 
rights  in  tbe  premises  that  could  be  enforced 
against  tbe  subsequent  entrymen.  Counsel 
for  plaintiff  still  insists  that  under  tbe  act 
of  Congress  approved  March  3,  1891,  supra, 
and  the  facts  in  the  Instant  case.  Ids  client 
secured  and  still  retains  an  easement  in  the 
lands  described.  We  are  entirely  satisfied 
with  our  former  opinion  upon  this  point.  By 
tbe  express  terms  of  tbe  statute,  a  rigbt  of 
way  can  only  be  acquired  over  vacant  gov- 
ernment lands  upon  the  approval  of  appli- 
cant's map  by  tbe  Secretary  of  the  Interior. 
Tbe  Interior  Department  has  held  that  tbe 
filing  of  a  map  of  location  for  a  reservoir 
site  does  not  reserve  tbe  land  described 
therein,  but  affects  only  such  lands  as  were 
vacant  at  tbe  date  of  the  approval  of  tbe 
map.  Highland  Supply  Ditch  Company,  re- 
ferred to  In  Hamilton  Pope,  28  Land  Dec.  Dep. 
Int  402,  403 ;  United  States  v.  Rickey  Land 
&  CatUe  Co.  et  al.  (C.  C.)  164  Fed.  496.  Tbe 
map  has  never  been  approved,  and  none  of 
tbe  land  la  now  vacant. 


2.  Wboi  August  Blust  and  Anton  Blust 
made  their  respective  entries,  the  land  neces- 
sarily was  vacant.  The  preceding  entries  had 
been  relinquished  by  the  entrymen,  or  can- 
celed by  the  government,  and  that  condition 
had  existed  for  several  weeks.  Tbe  evidence 
in  the  record  satisfies  us  that  in  July,  1904, 
Rasmussen  had  completed  and  bad  been  for 
some  time  operating  his  low  line  ditch  across 
the  northeast  quarter  of  section  29,  and  that 
be  bad  a  right  of  way  across  the  northwest 
quarter  of  section  28.  The  Legislature  tias 
declared  that  tbe  unappropriated  waters  In 
every  natural  stream  within  the  state  are 
public  property,  dedicated  to  tbe  use  of  tbe 
people  of  tbe  commonwealth,  but  subject  to 
appropriation  according  to  tbe  terms  of  tbe 
statuta  Section  42,  art  2,  c  83a,  p.  1925, 
Comp.  St  1909.  Tbe  Legislature  has  further 
provided:  "AH  ditches  constructed  for  the 
purpose  of  utilizing  the  waste,  seepage, 
swamps,  or  spring  waters  of  the  state  shall 
be  governed  by  the  same  laws  relating  to  the 
priority  of  right  as  those  ditches  construct- 
ed for  tbe  purpose  of  utilizing  the  waters  of 
running  streams:  Provldeu,  that  the  person 
upon  whose  lands  the  waste,  seepage,  swamp 
or  spring  waters  first  arise  shall  have  tb^ 
prior  right  to  the  use  of  such  waters  for  all 
purposes  upon  bis  lands."  Section  44,  art  2, 
c.  93a,  Comp.  St  1909.  To  the  state  board  of 
irrigation,  an  administrative  body,  has  been 
committed  tbe  power  to  determine  In  the  first 
Instance  between  Individuals  or  corporations 
and  the  state  their  respective  rights  to  use 
the  waters  aforesaid.  Under  an  unrevoked 
permit  from  said  board,  an  applicant  who 
thereafter  by  virtue  of  the  permit  applies 
public  waters  to  a  beneficial  use  within  the 
meaning  of  the  irrigation  law  obtains  a  vest- 
ed rigbt  recognized  and  protected  by  the  laws 
of  Nebraska.  Sections  2339  and  2340  of  the 
United  States  Revised  Statutes  (U.  S.  Comp. 
St  1901,  p.  1437)  provide: 

"Whenever,  by  priority  of  possession,  rights 
to  the  use  of  water  for  mining,  agricultural, 
manufacturing,  or  other  purposes,  have  vested 
and  accrued,  and  the  same  are  recognized 
and  acknowledged  by  tbe  local  customs,  laws, 
and  tbe  decisions  of  courts,  tbe  possessors 
and  owners  of  such  vested  rights  shall  be 
maintained  and  protected  in  the  same;  and 
the  right  of  way  for  tbe  construction  of 
ditcbes  and  canals  for  the  purposes  herein 
specified  Is  acknowledged  and  confirmed;  but 
whenever  any  person,  in  the  construction  of 
any  ditch  or  canal,  injures  or  damages  tbe 
possession  of  any  settler  on  tbe  public  do- 
main, tbe  party  committing  such  injury  or 
damage  shall  be  liable  to  the  party  injured 
for  such  injury  or  damage." 

"All  patents  granted,  or  pre-emption  or 
homesteads  allowed,  shall  be  subject  to  any 
vested  and  accrued  water  rights,  or  rights 
to  ditches  and  reservoirs  used  In  connection 
with  such  water  rights,  as  may  have  been 
acquired  under  or  recognized  by  tbe  preced- 
ing section." 


Digitized  by 


Google 


864 


122  NORTHWESTERN  REPORTER. 


(Neb. 


In  Broder  t.  Water  Company,  101  U.  S. 
274,  25  L.  Ed.  790,  it  was  beld  that  the  last 
cited  statute  merely  acknowledges  pre-exist- 
ing rights,  and  that  the  owners  of  a  ditch  lo- 
cated on  public  land  and  in  actual  use  will  be 
protected  against  subsequent  entrymen.  The 
federal  government  does  not  by  said  act  grant 
any  estate,  but  merely  recognizes  such  vested 
and  accrued  rights  as  "are  recognized  and  ac- 
linowledged  by  the  local  laws  and  the  deci- 
sions of  courts."  If  the  appropilator  is  first 
in  time  with  reference  to  possession  and  use 
as  compared  with  the  date  a  homestead  entry 
Is  made  upon  the  real  estate,  the  rights  of 
the  homesteader  are  junior  and  inferior. 
Brosnan  t.  Harris,  89  Or.  148,  65  Pac.  867, 
54  L.  B.  ▲.  628,  87  Am.  St.  Rep.  649;  Smith 
V.  Hawkins,  110  CaL  122,  42  Pac.  453;  Maf- 
fet  V.  Quine  (C.  C.)  93  Fed.  847;  Id.  (C.  C.) 
05  Fed.  199.  The  irrigator  will  be  protected 
in  his  possession  and  application  of  the  water 
80  long  as  he  conforms  to  the  local  law  reg- 
ulating bis  rights,  but  be  has  no  contract 
with  or  grant  from  the  government,  federal 
or  state,  with  respect  to  his  privileges.  Mohl 
V.  Lamar  Canal  Co.  (C.  C.)  128  Fed.  776. 
The  act  of  Congress  approved  March  3,  1891, 
supra,  extends  to  those  in  possession  of  pub- 
lic lands  the  benefit  of  that  legislation,  but 
in  our  Judgment  does  not  supersede  the  ear- 
lier statute.  Act  July  28,  1866,  c.  262,  14 
Stat  251,  recognizes  rights  created  Independ- 
ent of  the  acts  of  Congress,  whereas  the  later 
acts  confer  rights  upon  certain  named  condi- 
tions. If  the  individuals  or  corporations  who 
have  appropriated  and  are  applying  public 
waters  for  beneficial  purposes  choose  to  avail 
themselves  of  the  benefits  of  the  act  of  1891, 
they  may  acquire  a  right  of  way  50  feet  in 
width  across  vacant  public  lands,  whereas 
under  the  act  of  1866  a  mere  possessory  right 
of  way  Is  recognized.  Under  the  later  act  a 
record  is  made  of  the  right  of  way  and  reser- 
voir sites.  The  applicant  under  the  act  of 
March  8, 1891,  need  only  survey  the  route  for 
his  proposed  ditches  and  the  sites  for  his 
reservoirs  and  file  in  the  local  land  office  a 
map  of  those  surveys  with  certain  other  data. 
If  the  Secretary  of  the  Interior  approves  the 
map.  a  base  or  determinable  fee  vests  in  the 
applicant  in  advance  of  possession  and  the 
making  of  improvements  and  without  refer- 
ence to  any  local  laws  or  customs.    In  Lin- 


coln County  Water  Supply  &  Land  Company 
T.  Big  Sandy  Reservoir  Co.,  32  Lend  Dec 
Dept  Int  463,  465,  Mr.  Secretary  Hitchcock 
said:  "While  the  clause  above  quoted  from 
section  20  of  the  act  of  March  8,  1891.  ex- 
tends the  benefits  of  that  act  to  all  canals, 
ditches,  or  reservoirs  theretofore  construct- 
ed upon  the  public  domain,  among  which  is 
the  right  to  file  in  that  behalf  with  the  land 
department  a  map  of  such  canals,  ditches, 
and  reservoirs,  and  secure  the  approval  of  the 
Secretary  of  the  Interior  thereof,  yet  the 
ri!;ht  of  claimants  under  section  2339  of  the 
Revised  Statutes  are  in  no  wise  dependent 
upon  said  act  or  upon  an  approval  of  such 
maps." 

Concerning  the  southeast  quarter  of  sec- 
tion 29,  the  evidence  establishes  that  Rasmus- 
sen  relied  upon  the  deed  from  Mrs.  Ross,  n^ 
Ihrig,  to  protect  his  right  of  way  for  the 
high  line  ditch  across,  and  his  reservoir  site 
upon,  that  tract  At  the  time  August  Blust 
entered  that  land  under  the  Kiukead  act, 
plaintiff  had  not  constructed  either  of  said 
improvements.  Rasmussen  did  not  secure 
any  rights  by  virtue  of  the  Ross  deed  as 
against  the  subsequent  entryman,  but  he 
must  either  purchase  or  condemn  if  he  con- 
cludes to  extend  his  ditches  across,  and  lo- 
cate a  reservoir  upon,  that  land. 

The  evidence  in  the  record  concerning  the 
feasibility  of  the  high  line  ditch  is  irrele- 
vant. The  state  board  of  irrigation  has  pass- 
ed upon  that  feature  of  the  dispute,  and  the 
district  court  In  the  first  instance  has  no  Ju- 
risdiction of  the  subject  In  our  .former  opin- 
ion we  failed  to  give  plaintiff  the  benefit  of 
sections  2339,  2340,  Rev.  St  U.  S.,  supra. 
Upon  more  mature  delibeiation  we  are  sat- 
isfied that  the  evidence  does  not  sustain  a 
judgment  dismissing  the  petition.  If  the 
case  is  again  tried,  the  evidence  adduced 
may  Justify  more  comprehensive  relief  for 
plaintifT  than  we  have  indicated  in  this  opin- 
ion ;  on  the  other  hand,  defendants  may  be 
completely  exonerated. 

The  former  opinion  and  Judgment  of  this 
court  are  set  aside,  the  Judgment  of  the  dis- 
trict court  is  reversed,  and  the  cause  is  re- 
manded for  further  proceedings,  and  all  tax- 
able costs  incurred  up  to  the  date  of  filing 
a  mandate  in  the  district  court  are  taxed  to 
plaintiflC 


Digitized  by 


Google 


N.D.) 


LANQWORTHY  LUMBER  CO.  ▼.  HUNT. 


865 


LANGWORTHY    LUMBER    CO,    ▼.    HUNT 
et  at 

(Supreme  Coart  of  North  Dakota.    Oct  1, 1909.) 

1.  Mechanics'  Lixns  (S  95*)— RiaHTS  ot  S0b- 

CONTBACTOB. 

Under  the  mechanic's  lien  law  (chapter  79, 
Rev.  Codes  1905)  a  subcontractor  is  entitled  to 
a  direct  lien  for  work  done  or  materials  fur- 
nished the  contractor,  irrespectire  of  the  state 
of  the  accounts  on  the  contract  between  the 
owner  and  the  contractor,  or  the  amount  due 
or  unpaid  upon  their  contract. 

[Ed.  Note. — For  other  cases,  see  Mechanics' 
Liens,  Dec.  Dig.  {  95.*] 

2.  Mechanics'   Liens  (|  115*)— Payment  to 
conthactob— llabilitt  of  owner. 

The  owner  most  keep  advised  whether  ma- 
terial used  in  his  building  Is  paid  for  or  not, 
and,  if  he  pays  the  contractor  within  the  time 
specified  by  the  statute,  he  does  so  at  his  peril. 
[Ed.  Note. — For  other  cases,  see  Mechanics' 
Liens,  Cent.  Dig.  §S  150-159;  Dec.  Dig.  §  115.*] 

8.  OONTBACTS  (S  295*)— Pebfobuance— Aban- 

donhe:«t. 

The  abandonment  of  bis  contract  by  a  con- 
tractor after  a  snlMtantial  portion  of  it  has  been 
performed  does  not  of  itself  work  a  completion 
of  the  contract. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Dec.  Dig.  S  295.*] 

4.  Mechanics'  Liens  (|  121*)— Lien  of  Sub- 
CONTRACTOB— Notice  to  Owneb— Time. 
Notice  sent  by  registered  letter  to  the  own- 
er by  a  subcontractor,  informing  him  that  he  is 
furnishing  material  for  the  contract,  after  its 
abandonment  by  the  contractor  and  before  steps 
are  taken  to  complete  the  work  by  the  owner, 
is  seasonably  sent  under  the  requirement  that 
such  notice  be  given  the  owner  previous  to  the 
completion  of  the  contract. 

[Ed.  Note.— For  other  cases,  see  Mechanics' 
Uens,  Dec.  Dig.  {  121.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Wells  Coun- 
ty ;   Borke,  Judge. 

Action  liy  the  Langworthy  Lumber  Com- 
pany against  Mark  Himt  and  Henrietta  C. 
Hunt  Judgment  for  defendants,  and  plain- 
tiff appeals.   Reversed. 

John  A.  Layne,  James  A.  Manley,  and  B. 
O.  Skulason.  for  appellant  Lee  Combs,  for 
respondents. 

SPALDING,  J.  This  action  was  tried  by 
the  court,  and  is  here  for  trial  de  novo. 
The  defendants  had  Judgment,  and  plaintlfF 
appeals.  It  is  an  action  brought  to  foreclose 
a  mechanic's  lien  upon  lots  17  and  18,  in 
block  3  of  Chess  &  Lloyds  addition  to  the 
city  of  Fessenden,  Wells  county,  N.  D.  The 
evidence  Is  conflicting  as  to  some  facts, 
but,  as  we  regard  it,  these  conflicts  are  of 
no  importance.  Our  decision  must  be  based 
soldy  upon  questions  of  law. 

As  far  as  material  to  our  decision,  the 
facts  appear  as  follows:  Title  to  the  lots 
described  stood  In  defendant  Mark  Hunt 
He  had  deeded  the  same  to  his  mother,  the 
defendant  Henrietta  C.  Hunt,  but  the  deed 
had  never  been  recorded.    Henrietta  C.  Hunt 


entered  into  a  contract  with  one  Weseman 
for  the  erection  of  a  dwelling  house  on  the 
lots  mentioned  for  the  sum  of  $2,027.  Wese- 
man was  to  furnish  all  the  material  and  la- 
bor necessary  to  complete  the  construction 
ot  such  dwelling.  Between  the  4th  day  of 
June  and  the  15th  day  of  November.  1906, 
the  contractor  purchased  lumber  and  build- 
ing material  from  appellant,  the  plaintiff 
herein,  amounting  In  the  aggregate  to  the 
sum  of  $1,147.00.  Some  articles  were  re- 
turned, reducing  the  amount  to  $1,092.65, 
and  since  this  action  has  been  brought  other 
articles  have  been  returned  which  appellant 
concedes  may  be  credited,  reducing  the  total 
debt  to  $1,084.70,  no  part  of  which  has  ever 
been  paid.  No  question  is  made  as  to  all  of 
such  lumber  and  material  being  used  In  the 
erection  of  the  dwelling  house  and  a  consid- 
erable portion  of  It  was  used  by  respondents 
In  completing  it  The  testimony  is  in  con- 
flict as  to  when  the  defendant  Henrietta 
0.  Hunt  first  knew  that  the  plaintiff  was 
furnishing  any  material  to  Weseman,  but 
she  admits  that  she  did  know  it  on  the  31st 
day  of  October.  1906.  Weseman  proceeded 
on  the  contract  until  the  superstructure  was 
erected.  Inclosed,  and  plastered  and  some  of 
the  other  Inside  work  done,  when  he  aban- 
doned it  It  is  not  claimed  that  he  notified 
any  of  the  parties  that  he  was  about  to  or  had 
abandoned  the  contract.  Respondent  had  paid 
Weseman  $1,013.50,  the  last  payment  having 
been  made  on  the  15th  day  of  September, 
1906.  The  date  of  the  abandonment  Is  not 
definitely  fixed,  but  it  is  reasonably  certain 
that  it  occurred  between  the  14th  and  24th 
days  of  November,  1906.  On  the  latter 
date,  appellant  sent  respondent  Henrietta  0. 
Hunt  a  registered  letter,  as  required  by  sec- 
tion 6237,  Rev.  Codes  1905,  notifying  her 
that  it  Itad  furnished  the  material  in  ques- 
tion to  the  contractor  for  use  in  her  dwelling 
house,  and  on  the  7tb  day  of  December, 
1906,  a  similar  notice  was  sent  by  registered 
letter  to  the  respondent  Mark  Hunt  Noth- 
ing was  done  by  respondents  toward  com- 
pleting the  structure  until  after  such  notices 
were  received  by  them  and  the  lien  filed. 
On  the  8th  day  of  December,  1906,  appellant 
filed  in  the  office  of  the  clerk  of  the  district 
court  in  and  for  Wells  county  the  verified 
account,  necessary  to  perfect  a  mechanic's 
lien  against  the  premises  for  which  the  ma- 
terial was  furnished.  Thereafter  notice  was 
given  to  appellant  demanding  that  suit  be 
commenced  to  enforce  such  lien,  whereupon 
this  action  was  instituted. 

This  court  has  already  held  that  the  me- 
chanic's lien  law,  under  which  this  lien  is 
claimed,  must  be  classified  as  belonging  to 
the  Pennsylvania  system,  as  distinguished 
from  the  New  York  system,  and  that  the 
subcontractor  is  entitled  to  a  lien  irrespec- 
tive of  the  state  of  accounts  between  the 


•For  other  cases  ■««  sam«  topic  and  ■•cUon  NUMBER  is  Dae.  *  Am.  Digs.  1S07  to  data,  *  Reporter  Indexes 


122N,W.-55 


Digitized  by  LjOOQ  IC 


866 


122  NORTHWESTERN  REPORTER. 


(N.D. 


owner  and  the  contractor,  or  the  amount 
dae  or  unpaid  upon  their  contract  Robert- 
son Lumber  Co.  ▼.  Bank,  14  N.  D.  611,  105 
N.  W.  719.  In  the  same  case  It  was  held 
that  the  owner  must  keep  advised  whether 
the  material  used  In  his  building  Is  paid 
for  or  not,  and,  if  he  pays  the  contractor 
during  the  90  days  after  the  material  is  fur- 
nished, he  does  so  at  his  peril.  Section 
6237,  Rev.  Codes  1905,  reads  as  follows: 
"Any  person  who  shall  perform  any  labor 
upon  or  furnish  any  materials,  machinery, 
or  fixtures  for  the  construction  or  repair  of 
any  work  of  internal  improvement  or  for 
the  erection,  alteration  or  repair  of  any  build- 
ings or  other  structures  upon  land,  or  in 
making  any  other  improvements  thereon,  in- 
cluding fences,  sidewalks,  paving,  wells, 
trees,  grades,  drains  or  excavations  under  a 
contract  with  the  owner  of  such  land,  his 
agent,  trustee,  contractor  or  subcontractor, 
or  with  the  consent  of  such  owner,  shall  up- 
on complying  with  the  provisions  of  this 
chapter,  have  for  his  labor  done,  or  materi- 
als, machinery  or  fixtures  furnished,  a  lien 
upon  such  building,  erection  or  Improvement 
and  upon  the  land  belonging  to  such  owner 
on  which  the  same  Is  situated  or  to  improve 
which  the  work  was  done,  or  the  things  fur- 
nished, to  secure  the  payment  for  such  la- 
bor, materials,  machinery  or  fixtures;  pro- 
vided that  no  person  who  fiumishes  any  ma- 
terials, machinery  or  fixtures  as  aforesaid, 
for  a  contractor  or  subcontractor  shall  be 
entitled  to  file  such  lien  unless  he  notify  the 
owner  of  the  land  by  registered  letter  previ- 
ous to  the  completion  of  said  contract  that 
he  has  furnished  such  materials,  machinery 
or  fixtures.  The  owner  shall  be  presumed 
to  have  consented  to  the  doing  of  any  such 
labor  or  the  making  of  any  such  Improve- 
ment, If  at  the  time  he  had  knowledge  there- 
of, and  did  not  give  notice  of  his  objection 
thereto  to  the  person  entitled  to  the  Hen. 
The  provisions  of  this  section  and  chapter 
shall  not  be  construed  to  apply  to  claims 
or  contracts  for  furnishing  Ughtnlng  rods 
or  any  of  their  attachments."  It  will  be  no- 
ticed that  the  foregoing  section  requires  the 
notice  by  the  materialman  to  be  given  to 
the  owner  previous  to  the  completion  of  his 
contract  by  the  contractor.  The  trial  court 
evidently  held  that  the  naked  abandonment 
of  the  contract  or  woik,  under  this  statute 
must  be  construed  as  a  completion  of  such 
contract,  and  that,  the  appellant  not  having 
notified  respondents  that  It  was  furnishing 
materials  to  Weseman  until  a  few  days  after 
such  abandonment,  no  Hen  could  be  sustain- 
ed. This  is  in  accordance  with  the  conten- 
tion of  respondents,  while  appellant  insists 
that  under  the  Pennsylvania  system  the 
mere  fact  of  a  contractor  abandoning  the 
contract  when  partially  completed  does  not 
of  itself  work  a  completion  of  the  contract. 
We  must  hold  that  the  trial  court  erred  In 


Its  construction  of  the  law,  and  that  the 
abandonment  by  the  coirtractor  of  the  con- 
tract when  a  substantial  portion  of  it  had 
been  executed  does  not  work  a  completion 
of  the  contract.  The  mechanic's  lien  law  Is 
designed  to  protect  materialmen  and  labor- 
ers, and  should  be  liberally  construed  to  ef- 
fectuate this  purpose.  Salzer  Lumber  Co.  v. 
Clafiln,  16  N.  D.  601,  113  N.  W.  1036.  Among 
the  things  which  a  contractor  engaged  on  a 
losing  contract  is  liable  to  do  at  any  time  is 
to  abandon  the  same,  and  protection  against 
this,  in  the  Interest  of  the  materialman  or 
subcontractor,  la  one  of  the  most  essential 
elements  entering  Into  the  mechanic's  lien 
law,  and  is  among  the  purposes  for  which 
it  was  enacted.  In  the  absence  of  a  specific 
provision  of  the  statute  on  the  subject  mak- 
ing the  execution  of  the  contract  complete 
when  abandonment  occurs,  we  cannot  as- 
sume that  the  law  contemplates  such  a  re- 
sult. There  are  two  lines  of  authorities  on 
the  subject,  but  we  discover  none  sustaining 
the  contention  of  the  respondents  except 
those  construing  statutes  held  to  be  in  con- 
formity with  the  New  York  doctrine.  Those 
which  are  held  to  harmonize  with  the  Penn- 
sylvania system  hold  to  the  contrary,  with 
the  possible  exception  of  some  wherein  the 
subject  is  covered  by  the  statute  itself.  We 
are  cited  California  authorities  and  others; 
but  the  statute  in  California  expressly  pro- 
vides that  the  contract  is  terminated  by  its 
abandonment.  The  subcontractor  in  this 
state  Is  entitled  to  a  direct  lien  for  work 
done  or  materials  furnished  to  the  contract- 
or, and  in  states  where  a  direct  lien  is  given 
the  failure  of  a  contractor  to  complete  his 
contract  does  not  destroy  the  subcontractor's 
lien.  Boisot  on  Mechanics'  Liens,  I  236;  27 
Cyc.  pp.  100, 101,  and  cases  cited;  Red  River 
Lumber  Co.  v.  Congregati<m  of  Israel,  7  N. 
D.  46,  73  N.  W.  203. 

It  follows  from  what  we  have  said  that 
the  notices  by  registered  letter  were  sent  to 
the  respondents  seasonably,  and  that  their 
property  must  sustain  the  burden  of  the  Hen 
in  question.  All  other  questions  hang  upon 
the  one  as  to  whether  the  contract  was 
completed  by  the  abandonment  Hence  they 
need  not  be  noticed. 

The  Judgment  of  the  district  court  la  re- 
versed, and  it  is  directed  to  enter  Judgment 
of  foreclosure  in  accordance  with  this  opin- 
ion. All  concur,  exc^t  MORGAN,  C.  J.,  and 
ELLSWORTH,  J.,  not  participating. 


WINTERBERG  r.  VAN  DB  VORSTB. 

(Supreme  Court  of  North   Dakota.     June  29, 

1909.     Rehearing  Denied  Oct  18,  1909.) 

1.   EXECUTOBS   AND   ADinNIBTBATOBS   (8   39*)— 

Certificate    or   Movtoagb  —  Foreclosubi 
Sale— Right  to  Assign. 

An  executor  may  sell  and  assign  a  sherilTi 
certificate  of  foreclosure  held  by  him  as  executor, 


•For  otiiar  cum  Bern  uunt  topic  ud  i«ctlon  NUMBER  In  Dec  *  Am.  Dig*.  1M7  to  OtU,  *  Hapoitw  IndexM 


Digitized  by  VjOOQ  l€ 


N.D.) 


VriNTEBBERG  t.  YAK  D&  VORSTE. 


86.7 


and  a  sale  legally  and  regakirly  go  made  conveys 
all  the  interest  therein  of  the  devisees  under 
the  will  of  which  he  is  executor. 

[Ed.  Note.— For  other  cases,  see  Executon 
and  Administrators.  Pec.  Dig.  |  39.*] 

2.  Mortgages  (8  B53*)— Right  to  Rixief. 

A  proceeding  for  the  foreclosure  by  adver- 
tisement of  a  real  estate  mortgage  was  com- 
menced in  the  name  of  the  mortgagee  by  hex 
attorneys.  ^V'hile  the  advertisement  was  run- 
ning the  mortgagee  died.  At  the  sale  the  land 
was  bid  in  by  the  attorneys  and  the  sheriff's 
certificate  of  sale  issued  in  the  name  of  the 
mortgagee.  Such  certificate  was  subsequently 
as.sigiied  by  the  executor  for  a  valuable  con- 
sideration to  a  third  party,  who  bad  no  knowl- 
edge of  any  defect  in  the  proceedings,  and  who, 
after  taking  a  sberiflfs  deed,  conveyed  by  war- 
ranty deed  to  appellant.  Tbe  papers  and  rec- 
ords in  the  foreclosure  proceeding  disclose  no 
defect  therein.  The  mortgagor  abandoned  the 
premises  on  giving  the  mortgage,  and  never  paid 
any  interest,  taxes,  or  principal,  and  knew 
of  the  foreclosure  and  affirmatively  acquiesced 
therein,  and  in  the  title  and  possession  of  the 
appellant  for  years. 

Held,  that  a  party  who,  for  a  nominal  con- 
sideration, and  by  misrepresentation,  secures 
quitclaim  deeds  from  the  devisees  under  the  will 
of  the  mortgagee  after  the  final  account  of  the 
executor  had  been  approved  and  the  proceeds 
of  the  sale  of  the  certificate  had  been  distribut- 
ed to  and  accepted  by  such  devisees,  who  when 
executing  such  deeds  claimed  no  interest  in  or 
title  to  the  real  estate  in  question,  took  no 
title  by  such  conveyance. 

Held,  further,  following  the  authority  of  Hig- 
bee  V.  Daeley  et  al.,  15  N.  D.  339,  109  N.  W. 
318.  that  such  party,  by  deed  from  the  original 
mortgagor,  obtained  for  a  nominal  consideration 
and  through  misrepresentation  of  the  condition 
of  the  title  to  the  premises  attempted  to  be  con- 
veyed, acquired  no  title  which  a  court  of  equity 
will  protect. 

[Ed.  Note.— For  other  cases,  see  Mortgages, 
Dec.  Dig.  i  553.»] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Rmmons  Coun- 
ty; Wincliester,  Judge. 

Action  by  Annie  Winterberg,  suing  for  the 
use  and  benefit  of  George  W.  Lynn,  against 
Jobannes  Van  de  Vorste.  Judgment  for 
plaintiff, '  and  defendant  appeals.  Reversed 
and  rendered. 

N.  A.  Armstrong  and  John  H.  Perry,  for 
appellant    Geo.  W.  Lynn,  for  respondent 

SPALDING,  J.  This  is  one  of  the  cases 
now  becoming  very  numerous  in  the  courts  of 
tbis  state  relating  to  speculation  in  defect- 
ive titles  to  real  estate.  The  facts  may  be 
summarized  as  follows:  Annie  Winterberg 
was,  on  the  Ist  day  of  May,  18S9,  the  owner 
in  fee  of  the  S.  W.  ^,  of  section  35,  township 
130  N.,  range  77  W.,  In  Emmons  county,  and 
on  tliat  day  executed  and  delivered  a  mort- 
gage thereon  as  security  for  her  note,  paya- 
ble In  five  years  to  one  Hannah  K.  Loring, 
a  resident  of  Massachusetts.  This  mortgage 
was  recorded  on  the  5th  day  of  June,  1889,  In 
the  office  of  the  register  of  deeds  of  Emmons 
county,  and  contained  a  power  of  sale  author- 
izing tbe  mortgagee,  or  ber  agent,  to  fore- 


close and  sell  at  public  aoctloii  in  case  of 
default  Default  was  made  by  failure  to 
pay  the  principal  or  any  interest  or  taxes, 
and  the  mortgagee  authorized  the  firm  oi 
Herreid  &  Williamson  to  foreclose  such  mort- 
gage by  advertisement  under  the  power  of 
sale,  and  accordingly  first  publication  of  no- 
tice of  foreclosure  was  made,  as  provided  by 
law,  on  tlie  23d  day  of  September,  1898.  Be- 
tween the  dates  of  the  first  and  second  publi- 
cations, the  mortgagee,  Hannah  K.  Lorin;;- 
died,  and,  apparently  without  knowledge  of 
her  death,  publication  of  ttie  notice  was  con- 
tinued for  the  full  time  required  by  statute, 
and  on  the  6tb  day  of  November,  1898,  the 
date  fixed  in  the  notice  for  sale  of  the  prem- 
ises, sale  was  made  by  tbe  sheriff  of  Em- 
mons county,  and,  Herreid  &  Williamson  be- 
ing the  highest  bidders,  tbe  sale  was  made, 
and  the  sheriff's  certificate  executed  in  tbe 
name  of  said  Loring  as  purchaser.  Sucb  cer- 
tificate, and  tbe  other  papers  required  and 
customary  In  such  cases,  were  delivered  to 
said  attorneys,  and  recorded  on  tbe  14th  da.v 
of  November,  1898.  The  death  of  Hannah  K. 
Loring  occurred  on  the  24th  day  of  Septem- 
ber, 1898.  She  left  a  last  will  and  testament 
wherein  she  constituted  John  M.  Batchelder, 
of  tbe  county  of  Middlesex  and  state  of  Mas- 
sachusetts the  executor  tbereof.  Such  pro- 
ceedings were  had  in  tbe  prolMite  court  of 
Middlesex  county  that  on  tbe  22d  day  of  No- 
vember, 1899,  ber  will  was  admitted  to  pro- 
bate, and  said  Batchelder  was  on  tbe  same 
day  duly  appointed  as  executor,  and  forthwith 
qualified  as  sucb.  It  also  appears  that  be  was 
appointed  and  acted  after  ber  death,  and 
before  qualifying  as  executor,  as  conservator 
of  ber  estate.  Tbe  certificate  of  sale  went  in- 
to tbe  possession  of  said  Batchelder  as  execu- 
tor, and  on  the  20tb  day  of  February,  1900, 
he  sold  and  assigned  the  same  for  tbe  sum  of 
|457  to  one  J.  E.  Horton,  by  an  instrummt 
in  writing,  whlcb  was  duly  recorded  in  tbe 
office  of  tbe  register  of  deeds  of  Emmons 
county,  on  the  30th  day  of  March,  1900.  Tbe 
laws  of  Massachusetts  are  pleaded  and  are 
offered  in  evidence,  and  show  that  under  such 
law  said  sheriff's  certificate  of  sale  was  per- 
sonal property,  and  that  tbe  executor  was 
authorized  to  convey  tbe  same  without  pro- 
curing an  order  of  sale  from  tbe  courts  of 
Massachusetts.  No  redemption  was  made, 
and  on  the  1st  day  of  May,  1900,  the  sheriff 
of  Emmons  county  executed  and  delivered  to 
said  Horton  tbe  usual  sberifTs  deed  which, 
it  is  claimed,  conveyed  said  real  estate  to 
Horton.  Sucb  deed  wag  recorded  in  Ehnmous 
county  on  tbe  1st  day  of  May,  1900,  and 
thereafter,  and  on  tbe  same  day,  Horton  con- 
veyed by  warranty  deed,  which  was  duly  re- 
corded on  tbe  8tb  day  of  May,  1900.  to  tbe 
defendant  and  appellant  herein,  who  since 
that  time  has  been  in  exclusive  possession  of 
tbe  premises.  Annie  Winterberg  abandoned 
the  premises  at  or  about  the  time  of  tbe  exe- 


•ror  other  cues  im  sain*  topic  and  icctlon  NUMBBR  in  Dec.  *  Am.  Digs.  19<I7  to  date,  *  Reportar  IndaxM 


Digitized  by 


Google 


868 


122  NORTHWESTERN  REPORTER. 


(N.D. 


cntion  of  the  mortgage,  and,  although  she 
knew  of  the  foreclosure  proceedings,  nerer 
raised  any  objection  thereto,  or  made  any 
claim  of  their  invalidity,  or  that  she  retained 
any  tittle  in  the  premises.  On  the  13th  day 
of  April,  1905,  on  the  representations  and  at 
the  request  of  George  W.  Lynn,  for  whose 
use  and  benefit  this  action  Is  brought,  for 
the  consideration  of  $20,  Annie  Wlnterberg 
quitclaimed  said  premises  to  one  Wetberby, 
and  It  Is  alleged  that  she  did  so  by  reason  of 
the  promise  made  by  Lynn,  acting  for  Weth- 
erby,  that  he  would  not  disturb  the  title  or 
possession  of  appellant;  that  such  promise 
was  false,  and  was  fraudulently  made  for  the 
purpose  of  obtaining  such  deed.  On  Febru- 
ary 8,  1904,  Lynn  wrote  the  following  letter 
to  said  Batchelder:  "George  W.  Lynn, 
State's  Attorney,  Emmons  County.  Linton, 
North  Dakota,  Feb.  8,  1904.  John  M.  Batch- 
elder,  Holllston,  Mass.  Kind  Sir:  Your  fa- 
vor of  the  2d  inst  received  and  contents  not- 
ed, and  your  promptness  in  answering  my 
former  letter  is  appreciated.  A  client  of 
mine  has  requested  that  I  pass  upon  the  title 
of  certain  tracts  of  land  in  this  county  in 
which  the  late  Hannah  K.  Loring  had  an  es- 
tate prior  to  her  death.-  I  wish  to  state  at' 
this  time  that  the  purpose  of  my  corre- 
spondence with  you  is  not  adverse  in  any 
manner  whatsoever  to  the  interests  of  your- 
self or  of  the  heirs  and  devisees  of  the  said 
Hannah  K.  Loring,  but  is  for  the  purpose  of 
perfecting  a  good  and  unquestionable  title  to 
the  said  tracts.  To  this  end  I  have  advised 
that,  in  order  to  obtain  such  title,  he  should 
secure  a  certified  copy  of  the  will  which  has 
been  probated  in  your  state,  together  with 
quitclaims  from  tbe  heirs  and  devisees  of 
the  late  Hannah  K.  Loring,  all  of  which 
should  be  placed  of  record  in  this  state. 
Will  you  imdertake  to  secure  the  quitclaims, 
and  in  your  opinion  what  will  be  the  cost 
of  securing  them.  Including  your  services, 
provided  I  prepare  all  papers  according  to 
the  laws  of  our  state,  and  you  attend  to 
having  the  same  executed?  I  iiave  tbis  day 
written  the  register  of  probate  to  ascertain 
the  cost  of  securing  the  certified  copy  of  the 
will,  and  when  I  bave  heard  from  you, 
and  if  everything  is  satisfactory  to  my  cli- 
ent, I  will  send  you  the  papers,  together 
with  a  draft  for  the  amount.  An  early  re- 
ply will  be  appreciated,  and  In  any  event 
I  will  compensate  you  for  your  trouble. 
Yours,  Geo.  W.  Lynn.  Die."  And  by  means 
thereof,  and  on  payment  of  $2.S0  to  each 
devisee,  obtained  quitclaim  deeds  from  all 
tbe  devisees  under  the  will  of  said  Hannah 
K.  Loring  to  Wetherby,  who  thereafter  deed- 
ed to  Lynn  by  quitclaim  deed.  Neither  Lynn 
nor  Wetherby  have  ever  been  In  possession 
of  nor  received  any  rents  or  profits  from  said 
real  estate.  Annie  Wlnterberg  has  at  all 
times  since  the  execution  and  delivery  of 
such  mortgage  been  an  actual  resident  of  the 
state  of  North  Dakota.  The  answer  demands 
afllrmatlve   relief,   that   said    certificate   of 


such  foreclosure  sale,  and  all  foreclosure  pro- 
ceedings, be  reformed  to  show  said  Batchel- 
der as  executor  to  be  the  purchaser  at  said 
sale,  and  that  the  same  be  held  valid  and 
l>e  -confirmed,  and  tha£  said  sheriff's  deed 
be  validated,  and  that  the  defendant  and  ap- 
pellant be  adjudged  to  be  the  owner  in  fee 
of  such  real  estate,  and  for  general  relief. 
On  the  trial  evidence  was  received  showing 
the  circumstances  and  facts  surrounding  the 
several  transactions,  most  of  which  are  in 
harmony  with  the  statements  of  tbe  answer. 
The  court  entered  Judgment  against  the  de- 
fendant, adjudging  that  plaintiff  Is  the  ab- 
solute owner  of  the  premises  described,  and 
quieting  title  in  him,  and  directing  the  issu- 
ance of  execution  to  place  him  in  possessloa 
thereof,  and  for  costs.  From  such  Judg- 
ment defendant  appeals,  and  demands  a  trial 
de  novo  in  this  court 

It  affirmatively  appears  from  the  testi- 
mony of  Annie  Wlnterberg,  the  mortgagor, 
that  she  abandoned  the  mortgaged  premises, 
and  surrendered  the  same  Immediately  after 
executing  the  mortgage,  and  that  she  has 
never  since  made  any  claim  to  title  there- 
in. When  Lynn  called  upon  her  and  request- 
ed her  to  sign  the  previously  prepared  deed 
running  to  Wetherby,  be  informed  her  that 
he  sought  It  to  make  the  title  a  little  (dear- 
er. She  told  him  that  she  did  not  know 
that  she  bad  any  claim  on  It  any  more.  He 
Informed  her  that  she  had  a  little  claim  on 
it  yet.  She  testifies  that  at  that  time  she 
made  no  dalm  to  any  interest  in  it,  and 
that  she  told  Lynn  that  she  did  not  want  to 
take  the  land  from  Van  de  Vorste,  the  de- 
fendant, and  that  if  it  did  not  interfere  with 
him  (Van  de  Vorste)  then  she  was  willing  to 
sign  tbe  deed,  and  that  Lynn  Informed  her 
that  it  would  make  no  difference  to  Van  de 
Vorste,  but  would  Just  clear  up  tbe  title  a 
little;  that  she  first  learned  that  it  did  In- 
terfere with  Van  de  Vorste  and  his  title 
not  a  great  while  after  that ;  that  she  would 
not  have  executed  the  deed  had  she  been 
informed  that  it  would  interfere  with  Van 
de  Vorste's  interest  and  title;  and  that  she 
relied  upon  the  promise  and  statement  of 
Lynn  that  it  would  not  do  so.  He  concedes 
that  he  showed  her  the  five  deeds  which  be 
had  received  from  the  executor,  and  used 
them  to  Influence  her  to  execute  the  deed  to 
Wetberby,  and  claims  that  Mrs.  Wlnterberg 
was  informed  or  told  that  Van  de  Vorste 
could  recover  from  Horton,  the  party  who 
took  the  assignment  of  the  certificate  of  sale, 
and  to  whom  the  sherifTs  deed  was  issued, 
the  amount  he  had  paid  him  for  his  deed. 
Mrs.  Wlnterberg  testifies  that  no  such  con- 
versation occurred  before  she  executed  and 
delivered  the  deed  to  Lynn,  but  her  testi- 
mony leads  us  to  believe  that  some  such 
conversation  may  have  taken  place  after  the 
transaction  was  closed.  One  Wescott,  who 
drove  Lynn  to  Mrs.  Winterberg's  place,  tes- 
tified to  such  a  conversation,  but  he  falls 
to  place  It  before  the  delivery  of  the  deed. 


Digitized  by  VjOOQ  IC 


N.D.) 


WINTBRBBRG  t.  VAN  DB  VORSTB. 


869 


HortOD,  the  assignee  of  the  sheriff's  certifi- 
cate and  the  grantor  of  appellant,  testifies 
tbat  he  purchased  the  sheriff's  certificate 
from  Herreld  &  Williamson,  the  representa- 
tives of  the  executor,  and  did  so  on  th»  rep- 
resentation of  Mr.  Herreld,  who  bad  made 
the  foreclosure,  that  everything  was  perfect- 
ly In  order  and  all  right;  that  he  held  a 
second  mortgage  on  the  place,  and  was  con- 
sidering redeeming  from  the  foreclosure  sale 
in  question,  but  through  this  advice  he  dis- 
charged his  second  mortgage,  and  relied  up- 
on the  certificate  of  sale.  It  is  shown  that 
the  proceeds  of  the  certificate  of  sale  were 
received  by  the  executor,  Batcbelder,  and 
distributed,  in  the  admlnlBtratlon  of  the  es- 
tate of  Hannah  K.  Loring,  to  the  parties 
designated  in  her  will,  namely,  the  persons 
who  executed  the  quitclaim  deeds  delivered 
to  Lynn  through  Batcbelder,  Iq  response  to 
the  letter  quoted. 

It  is  contended  on  the  part  of  the  respond- 
ent that  the  foreclosure  proceedings  were  ab- 
solutely void,  and  that  no  title  passed,  and 
that  title  should  be  quieted  in  him.  Appel- 
lant asks  for  a  reformation  of  the  certificate 
of  sale  and  sheriff's  deed,  and  suggests  sev- 
eral reasons  why  title  should  not  be  quieted 
In  plaintiff.  We  are  not  aided  to  any  ma- 
terial extent  by  the  brief  of  either  party  to 
this  appeal.  It  will  be  noted  that  respond- 
ent has  not  tendered,  and  does  not  offer  to 
pay,  the  mortgage,  the  Interest,  or  the  taxes 
paid  by  appellant  or  his  grantors.  We  have 
little  doubt  that  on  this  ground  the  action 
should  be  dismissed,  and  we  might  be  justi- 
fied in  going  no  further  than  reversing  the 
Judgment  and  dismissing  the  action ;  but,  as 
this  would  only  result  in  further  litigation, 
we  have  concluded  to  determine  the  full 
rights  of  the  parties  in  the  premises.  In 
doing  so  we  find  It  unnecessary  to  pass  upon 
the  validity  of  the  foreclosure  or  the  right 
to  a  reformation  of  any  of  the  Instruments 
described.  We  may  assume  that  in  a  prop- 
er proceeding,  instituted  without  unreason- 
able delay,  and  by  a  party  with  clean  hands, 
it  would  be  vacated.  For  a  period  of  9  years, 
between  the  execution  and  delivery  of  the 
mortgage  and  the  foreclosure  proceedings, 
the  mortgagor  asserted  no  rights  over  the 
premises;  permitted  the  mortgagee  to  pay 
the  taxes  and  Institute  foreclosure  proceed- 
ings. She  knew  of  the  foreclosure  proceed- 
ings while  they  were  being  conducted.  She 
knew  of  the  deed  to  Van  de  Vorste,  and 
that  he  was  in  possession  of  the  premises. 
She  acquiesced  in  all  of  the  proceedings, 
even  to  the  time  of  the  trial  in  the  district 
court  in  May,  1906,  17  years  after  she  gave 
the  mortgage.  She  not  only  acquiesced,  but 
she  refused  to  execute  a  deed  If  it  would  in- 
terfere with  the  interests  of  the  appellant, 
and  only  gave  the  deed  on  assurances  that  it 
would  not  have  such  effect  This  case  does 
not  present  facts  parallel  with  those  in  Fin- 
layson  v.  Peterson,  11  N.  D.  45,  89  N.  W.  868. 
Iq  that  case  the  papers  and  records  of  the 


foreclosure  proceedings  showed  on  their  face 
that  such  proceedings  were  Illegal  and.  in- 
valid. In  this  case  nothing  connected  wltb 
the  foreclosure  proceedings  or  the  record  re- 
lating thereto  shows  any  defect  in  the  pro' 
ceedlngs.  If  the  fact  of  the  death  of  the 
mortgagee  while  the  advertisement  of  sale 
was  running,  and  the  issuance  In  her  name 
of  the  sheriff's  certificate  of  sale  after  her 
decease,  rendered  the  proceedings  wholly 
void,  the  invalidity  would  not  be  disclosed  by 
any  Inspection  of  the  record  or  foreclosure 
proceedings.  As  far  as  they  indicated  every- 
thing was  regular  and  valid.  In  the  Finlay- 
son  Case  the  record  disclosed  the  invalidity 
of  the  proceedings.  A  purchaser,  examining 
the  record  and  going  to  the  documentary  evi- 
dence of  the  foreclosure,  would  find  nothing 
to  apprise  him  of  any  defective  proceeding. 
The  effect  is  evident  in  this  case.  Horton 
was  an  innocent  purchaser  so  far  as  any  le- 
gal notice  of  a  defective  foreclosure  was  con- 
cerned. He  paid  a  fair  and  valuable  con- 
sideration for  the  assignment  of  the  sheriff's 
certificate.  Such  certificate  was  personal 
property,  both  in  this  state  and  In  Massachu- 
setts, and  the  executor  had  a  right  to  as- 
sign it  Horton  deeded,  for  a  valuable  con- 
sideration, to  the  appellant,  who  was  ap- 
prised of  no  defect  In  the  proceedings  or  title. 
He  took  possession  under  his  deed  in  good 
faith.  To  bold  with  respondent  after  the 
lapse  of  so  many  years  during  which  the 
mortgagor,  as  shown  by  the  record,  has  not 
only  affirmatively  acquiesced  in  the  fore- 
closure, but  disclaimed,  and  still  disclaims, 
any  Interest  in  the  premises,  and  told  Lynn 
80  when  he  procured  bis  deed,  would  open 
wide  the  doors  of  the  courts  to  fraud  and 
deception,  and  be  contrary  to  equity  and 
good  conscience.  The  equities  are  so  plain 
that  we  shall  not  take  the  trouble  to  cite 
numerous  authorities. 

In  Higbee  v.  Daeley  et  al.,  109  N.  W.  818, 
15  N.  D.  889,  this  court  held  that  one  who 
seeks  to  have  a  sale,  under  proceedings 
regular  on  their  face,  adjudged  void  must 
show  affirmatively  that  he  asserted  his  rights 
promptly  after  the  discovery  of  the  facts.  In 
that  case  a  foreclosure  was  conducted  in  the 
name  of  the  original  mortgagee  after  It  had 
assigned  the  mortgage;  the  assignment  never 
having  been  recorded.  The  property  was  bid 
off  by  the  assignee  of  the  mortgage,  and  a 
sheriff's  deed  Issued  to  such  assignee.  The 
record  disclosed  an  absolutely  perfect  title, 
in  the  holder  of  the  sheriff's  deed,  and  the 
defendant  was  a  purchaser  in  good  faith,  as 
in  the  present  instance.  The  court  says:  "It 
is  also  apparent  that  the  defect  is  not  one 
which  could,  under  the  circumstances  of  the 
case,  cause  any  actual  loss  or  prejudice  to 
the  plaintiff  or  any  one  else.  There  was  a 
default  which  authorized  a  foreclosure,  and 
the  actual  ownei;  of  the  debt  caused  the  ap- 
parent foreclosure  to  be  made,  and  reaped 
the  fruits  thereof.  'The  owner  of  the  fee, 
or  any  other  person  entitled  to  redeem,  were 


Digitized  by  VjOOQ  l€ 


870 


122  NORTHWESTERN  REPOKTBR. 


(llilUL 


given  the  same  notice  of  the  sale,  and  bad 
the  same  right  to  redeem,  as  fhey  would 
have  had  if  the  foreclosure  had  been  made  in 
tlie  name  of  the  assignee  of  the  mortgagee." 
These  were  among  the  reasons  given  for  hold- 
ing the  mortgagor,  or  plaintiff  in  that  case, 
to.  the  use  of  reasonable  diligence  to  avoid 
the  sale.  The  plaintiff  did  not  commence 
his  action  for  12  years  after  the  sale,  and  10 
years  after  the  time  the  entire  debt  dne 
under  the  mortgage  matured;  and,  although 
it  is  not  afBrmatlvely  shown  that  be  had  ac- 
tual knowledge  of  the  sale,  it  was  held  that: 
"If  the  plaintiff  knew  of  the  facts  as  to  the 
real  ownership  of  the  mortgage  t>efore  third 
parties  acquired  rights,  but  nevertheless  per- 
mitted this  apparently  valid  sole  to  stand 
unchallenged,  he  Is  manifestly  In  no  position 
td  Invoke  the  aid  of  a  court  of  equity.  His 
continued  silence  under  such  circumstances 
would  be  equivalent  to  a  fraudulent  conceal- 
ment which  would  estop  him  to  deny  the 
rights  of  Innocent  purchasers."  In  the  case 
at  bar  the  plaintiff  and  his  attorneys  knew 
all  about  the  defective  sale.  Williamson 
<tonducted  it;  was  attorney  for  the  executor, 
and  also  attorney  for  plaintiff  in  the  trial 
of  this  case  In  the  district  court.  See,  also, 
Johnson  y.  Erlandson,  14  N.  D.  518, 105  N.  W. 
722.  Bausman  v.  Pane,  45  Minn.  412,  48  N. 
W.  13,  is  directly  in  point  In  that  case  fore- 
t'loBure  proceedings  regular  in  form  were  com- 
lileted  in  the  name  of  a  mortgagee  who  had 
died  before  tbey  were  instituted,  and  the 
question  of  title  between  the  grantees  of 
the  mortgagor  and  those  of  the  purchaser 
at  the  foreclosure  sale  was  Involved,  and  it 
was  held  that  the  holder  of  the  land  through 
the  forecI(»ure,  who  had  purchased  in  good' 
fftlth  for  value,  and  who,  with  his  grbntors. 
had  been  in  possession  for  many  years,  was 
entitled  to  the  equitable  protection  of  the 
(ronrt,  unless  the  plaintiff  bad  been  without 
fault,  and  that  where  the  owner  knew  that 
his  title  appeared  of  record  to  have  been  di- 
vested, and  remained  quiescent  for  many 
years  until  the  equities  of  bona  fide  purchas- 
ors  of  the  record  title  had  Intervened,  a 
cotirt  of  equity  would  regard  his  laches,  and 
where  the  delay  appeared  to  be  from  a  pur- 
|)ose  to  abandon  the  land  to  incumbrancers, 
that  would  constitute  laches  as  respects  in- 
nocent purchasers,  and  the  court  reversed 
the  Judgment  entered  in  favor  of  the  party 
euilty  of  laches,  namely,  the  one  holding  un- 
der the  mortgagor. 

For  these  reasons  we  are  of  the  opinion 
that  the  trial  court  erred  In  quieting  title  In 
respondent.  We  might  rest  our  opinion  on 
other  grounds.  It  is  suggested  that  the  facts 
in  this  case  bring  it  within  the  rule  of  Gates 
v.  Kelley,  15  N.  D.  639,  110  N.  W.  770,  but 
as  this  is  only  touched  upon  in  the  brief,  we 
shall  pass  it,  as  well  as  the  question  of  the 
deed  being  given  when  the  grantor  had  not 
tteen  In  possession  or  received  rents  or  prof- 


its for  many  years.  It  Is  intimated  that  the 
deeds  from  the  parties  claiming  under  the 
will  of  Hannah  K.  Lorlng  conveyed  title. 
Tbey  had  nothing  to  deed.  Their  interest  in 
the  premises  in  the  controversy  had  l>een  sold 
by  the  executor.  They  had  no  legal  or  other 
title  to  convey,  and  they  tiad  received  and 
accepted  the  proceeds  of  such  sale.  It  is 
evident  that  gross  frauds  were  perpetrated 
upon  all  the  grantors  In  procuring  the  deeds 
to  Wetherby. 

The  Judgment  of  the  district  court  is  re- 
versed, and  title  quieted  in  the  appellant  as 
to  all  claims  of  the  respondent  and  parties 
claiming  under  or  through  him. 

All  concur,  except  MOROAN,  O.  J.,  not 
participating. 


EXCELSIOR  SUPPLY  CO.  v.  CHARLES  A. 
STICKNET  CO. 

(Supreme  Court  of  Minnesota.    Oct.  15,  1909.) 

1.  Sales  (|  128*)— Rescission  of  Contbact-^ 
Retubn  op  Goods—Acquiescence. 

In  an  action  for  goods  sold,  a  finding  that 
the  contract  was  rescinded  by  mutual  consent 
as  to  a  particular  number  of  the  articles  is 
supported  by  evidence  that  the  articles  were 
returned  as  defective  and  retained  by  the  ven- 
dor for  four  months. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent, 
Dig.  g  318;   Dec.  Dig.  {  128.*] 

2.  Sales  (|  128*)— Manufactuwbd  Abticles— 
Defect— Notice  or  Claiu. 

When  a  merchant,  the  vendor  of  a  manu- 
factured article,  notifies  the  vendee  that,  to 
obtain  credit  for  defective  appliances,  he  mnst 
apply  to  the  manufacturer,  a  shipment  of  the 
article  to  the  manufacturer  by  the  vendee,  with 
notice  of  claim,  is  a  proiper  assertion  of  the 
claim  and  demand  for  credit. 

[Ed.  Note.— For  other  casies,  see  Sales,  Cent. 
Dig.  i  818;  Dec.  Dig.  1 12a*] 

(Syllabus  by  the  Court.) 

Appeal  from  Municipal  Court  of  St  Paul; 
John   W.  Finehout,  Judge. 

Action  by  the  Eixceislor  Supply  Company 
against  the  Charles  A.  Stickney  Company. 
Judgment  for  defendant,  and  plalntllC  ap- 
peals.   Affirmed. 

Wm.  B.  Henderson  and  Chas.  J.  Andre, 
for  appellant.  Wm.  W.  Cutler,  for  respond- 
ent. 

O'BRIEN,  J.  The  appellant,  a  corpora- 
tion engaged  in  wholesale  merchandising  at 
Chicago,  upon  April  30,  1907,  sold  and  de- 
livered to  respondent  100  manufactured  ap- 
pliances, used  in  gasoline  eng^ea,  and 
known  as  "Jewel  spark  pings."  The  plugs 
were  manufactured  by  Pittsfleld  Spark  Coll 
Company,  of  Pittsfleld,  Mass.,  and  put  up  in 
boxes  at  the  factory,  marked,  "Guaranteed 
90  days."  On  June  10,  1007,  the  respondent, 
upon  the  claim  that  the  same  were  defect- 
ive, shipped  to  the  manufacturer,  the  Pitts- 


V^r  otlMr  eMw  sm  urn*  topic  snd  saotloa  NUHBBR  In  D«e.  Jt  Am,  Digs.  IMT  to  data,  *  Boportor  Indoza 


Digitized  by  VjOOQ  l€ 


Minn.) 


8L0CUU  V.  MoLAREN. 


871 


Add  Company,  89  of  the  plugs,  together 
with  20  other  plugs  manufactured  by  the 
same  company,  and  also  purchased  from  ap- 
pellant The  Plttsfleld  Company  received  the 
articles,  but  apparent;ly  did  nothing  concern- 
ing them  until  about  October  8,  1907,  when 
the  plugs  were  examined  and  tested  by  the 
witness  John  B.  Wood,  an  employ^  of  the 
manufacturing  company,  who  found,  as  he 
claims,  that  78  of  the  plugs  were  perfect,  8 
broken  by  improper  use,  and  2  defective; 
and  on  that  date  be  wrote  the  respondent,  in 
the  name  of  his  company,  rejecting  the  re- 
spondent's right  to  credit  for  the  89  Jewel 
plugs,  but  credit  was  conceded  for  the  other 
29  pings  received  at  the  factory  at  the  same 
time.  On  December  14th  the  Plttsfleld  Com- 
pany expressed  the  89  plugs  to  respondent, 
who  refused  to  receive  tbem.  in  the  mean- 
time the  appellant  had  drawn  upon  the  re- 
spondent for  the  entire  purchase  price,  but 
payment  was  refused  for  any  of  the  plugs 
.  so  claimed  to  be  defective.  The  balance  of 
its  indebtedness  was  paid  by  respondent. 
After  the  announcement  of  its  position  by 
the  manufacturer,  the  appellant  credited  the 
respondent  with  price  of  the  29  plugs.  This 
action  for  the  purchase  price  of  the  remain- 
ing 89,  amounting  to  $66.75,  was  commenced 
lu  June,  1908. 

The  respondent  had  Judgment  In  Its  favor, 
based  upon  the  finding  that  "on  or  about 
June  19,  1907,  by  mutual  agreement  between 
plaintiff  and  defendant,  the  sale  of  said  89 
spark  plugs  from  plaintiff  to  defendant  was 
rescinded  and  canceled.  •  ♦  • "  This 
finding  is  attacked  by  appellant  as  not  sus- 
tained by  the  evidence.  Appellant  further 
assigns  as  error  the  admission  of  certain 
evidence  hereafter  stated. 

In  order  to  Justify  the  finding  above  quot- 
ed It  must  be  held  that  the  shipment  to  the 
manufacturer  at  Plttsfleld  was  as  effective 
as  If  made  to  the  appellant  at  Chicago.  The 
treasurer  and  buyer  of  the  respondent  testi- 
fied to  the  receipt  of  a  letter  from  appellant, 
which  he  stated  he  could  not  find  after 
searching  the  files  of  bis  office;  but  after 
the  ruling  that  the  contents  of  the  letter 
might  be  given  orally  no  attempt  was  made 
to  do  so,  except  that  later  In  his  testimony 
the  witness  said  that  the  reason  the  plugs 
were  returned  to  Plttsfleld  "was  because 
they  Mdered  us  some  time  to  return  them; 
that  plaintiff  acted  as  agent  for  them."  On 
motion  this  answer  was  stricken  out  Again, 
.on  cross-examination,  he  was  asked  under 
whose  Instructions  the  goods  were  retiu-ned, 
and  answered,  "The  letter  of  the  Excelsior 
Supply  Company."  This  does  not  consti- 
tute error,  nor  evidence  sufficient  to  Justify 
the  shipment  to  the  manufacturer;  but  we 
think  the  evidence  produced  by  appellant  es- 
tablished the  fact  that  the  proper  method  to 
be  followed  by  the  respondent,  for  the  pur- 
pose of  obtaining  credit  because  of  defect- 


ive articles,  was  to  make  it*  claim  to  the 
manufacturer. 

Mr.  Kennedy,  the  representative  of  appel- 
lant, testified,  "It  is  my  personal  recollec- 
tion that  I  directed  the  Charles  A.  Stickney 
Company  to  return  any  of  the  spark  plugs 
that  were  defective  to  the  Plttsfleld  Spark 
Coll  Company  if  they  wished  to  get  credit 
for  them,"  and  that  whenever  a  defect  is 
claimed  "we  always  refer  the  party  to  the 
manufacturer  for  any  credit  they  may  claim." 
No  objection  was  made  to  this  procedure 
when  adopted  by  respondent  Upon  the  con- 
trary, it  was  confirmed  as  to  29  of  the  plugs 
returned,  and  the  reason  given  for  refusing 
credit  for  the  remainder  was,  not  because 
they  were  shipped  to  the  manufacturer,  but 
because  the  manufacturer  claimed  they  were 
not  defective  in  fact  If  tbe  plugs  were  de- 
fective, the  respondent,  under  the  testimony, 
had  the  right  to  return  them,  as  it  did.  to 
the  manufacturer,  and  would  be  entitled  to 
credit  upon  its  account  with  tbe  appellant 
for  their  purchase  price.  The  appellant  by 
Its  own  showing  referred  the  question  of 
tbe  truth  of  any  such  claim  to  the  Pittsfield 
Spark  Coil  Company,  so  that  if  that  com- 
pany acquiesced  in  the  claim,  the  result  was 
a  mutual  agreement  between  these  parties 
for  such  credit 

Tbe  respondent  made  its  claim  and  sub- 
mitted it  to  the  Pittsfield  Company  upon 
June  19th.  It  was  the  duty  of  that  com- 
pany, if  it  did  not  acquiesce,  to  repudiate 
tbe  respondent's  claim  within  a  reasonable 
time.  It  took  no  action  until  October  8th, 
and  retained  the  articles  until  December 
14th.  The  trial  court  was  Justified  in  hold- 
ing that  it  had  acquiesced  in  the  claim  made 
by  respondent  Whether  such  acquiescence 
be  held  to  be  a  rescission  of  th6  original 
contract,  or  a  conclusion  arrived  at  in  ac- 
cordance with  its  terms.  Is  immaterial,  as 
its  effect  is  the  same. 

Error  is  assigned  because  of  tbe  admis- 
sion of  certain  exhibits  containing  part  of 
the  correspondence  between  tbe  parties. 
Some  of  these  may  be  have  been  Immaterial 
but  their  admission  constituted  no  preju- 
dicial error. 

Judgment  affirmed. 


SlyOCUM  et  al.  ▼.  McLAREN. 

(Supreme  Court  of  Minnesota.    Oct.  22.  1909.) 

1.  New   Tbtal   (I   91*)  —  Twadvbbtbncb   ot 
CouNSKiy— DisrumoN  or  Court. 

An  order  denyinfr  a  motion  for  a  new  trial, 
banod  upon  the  Kronndg  of  inadvertence  and  ex- 
cusable nejrlect  of  coiinsel  in  not  discovering  a 
particular  statute  claimed  to  be  applicable  to  the 
issues  In  the  case,  and  the  further  ground  of 
newly  discovered  evidence,  held  not  an  abase  of 
discretion. 

[Ed.  Note.— For  other  cases,  see  New  Trial, 
Cent  Dig.  {S  184-187;   Dec.  Dig.  f  91.*] 


•For  other  can*  aee  mud*  topte  and  McUon  NCMBBR  In  Dm.  A  Am.  Digs.  1907  to  data,  4b  Raportar  Indazai 


Digitized  by 


Google 


872 


122  NORTHWESTERN  BBPORTBB. 


(Minn. 


2.  Taxation   (|  727*)— Tax  Title— Recobd- 

INO. 

Chapter  271,  p.  407,  Laws  1905,  requiring 
the  record  of  tax  titles  to  be  made  within  six 
years  from  the  date  of  the  tax  sale,  has  no  ap- 
plication to  titles  which  had  been  fully  perfected 
prior  to  the  passage  of  that  act. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Dec.  Dig.  8  727.»] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Swift  Coun- 
ty; G.  E.  Qvale,  Judge. 

Action  by  Joseph  J.  Slocum  and  Edward 
C.  Osborn,  as  trustees  of  the  Hastings  &  Da- 
kota Railway  Company,  against  James  Mc- 
Laren. Motion  to  vacate  Judgment  and  for 
a  new  trial  denied,  and  plaintiffs  appeal.  Af- 
firmed. 

See,  also,  106  Minn.  386,  119  N.  W.  406. 

Owen  Morris,  for  appellants.  S.  H.  Hud- 
son, for  respondent 

BROWN,  J.  This  action  was  brought  to 
quiet  title  to  a  tract  of  land  In  Swift  coun- 
ty, of  which  plaintiffs  were  the  holders  of 
the  record  title.  Defendant  relied  In  defense 
upon  a  tax  title,  and  the  validity  thereof 
was  the  principal  question  litigated  on  the 
trial.  The  court  below  held  the  tax  title 
valid,  and  ordered  the  entry  of  Judgment  to 
the  effect  that  defendant  was  the  owner 
of  the  land  and  that  plaintiffs  bad  no  title 
or  Interest  therein.  Judgment  was  entered 
accordingly,  and  plaintiffs  appealed.  It  was 
affirmed  by  this  court  In  Slocum  v.  McLaren, 
106  Minn.  386,  119  N.  W.  406.  Subsequently, 
after  the  cause  had  be(n  remanded,  plalu- 
tlffs,  upon  aflSdavits,  moved  the  court  below 
to  vacate  the  Judgment  theretofore  rendered 
and  affirmed,  and  for  a  new  trial  of  the  ac- 
tion, on  the  ground  of  inadvertence  and  ex- 
cusable neglect  of  counsel  for  plaintiffs,  and 
on  the  further  ground  of  newly  discovered 
evidence.  The  motion  was  denied,  and  plain- 
tiffs again  appealed. 

The  tax  Judgment  sale  under  which  de- 
fendant claims  title  occurred  April  24,  1889. 
On  August  20,  1002,  a  notice  of  expiration 
of  redemption  In  due  form  was  Issued  by  the 
county  auditor  and  properly  served  on  the 
following  day.  No  redemption  was  ever  made. 
Neither  the  certificate  of  tax  sale  nor  the 
notice  of  expiration  of  redemption  was  filed 
with  the  register  of  deeds  within  six  years 
from  the  date  of  the  tax  sale,  as  required  by 
chapter  271,  p.  407,  Laws  1905.  The  inad- 
vertence and  excusable  neglect  relied  upon 
by  counsel  in  support  of  the  motion  for  a 
new  trial  consists  in  the  Inadvertent  over- 
looking or  failure  to  discover  the  existence 
of  this  particular  statute  before  the  trial 
of  the  action  In  the  court  below;  and  the 
newly  discovered  evidence  consists  in  the  dis- 
covery of  the  statute,  since  the  trial,  and 
the  fact  thnt  the  certificate  of  sale  and  no- 
tice of  expiration  of  redemption  were  not 


filed  with  the  register  of  deeds  within  the 
time  provided  by  the  statute,  viz.,  within  six 
years  after  the  date  of  sale. 

The  motion  was  addressed  to  the  discre- 
tion of  the  court,  and  the  discretion  was  not 
abused  in  denying  It  The  validity  of  de- 
fendant's tax  title  was  practically  the  sole 
question  litigated  on  the  trial,  and  the  faU- 
ure  of  counsel  to  discover  this  particular  de- 
fect in  the  title,  if  it  be  a  defect,  is  not  sat- 
isfactorily excused.  The  statute  bad  been 
in  force  over  three  years  at  the  time  of 
the  trial,  and  the  records  in  the  office  of  the 
register  of  deeds  were  open  to  inspection, 
from  which  it  readily  could  be  ascertained 
that  the  documents  evidencing  defendant's 
title  had  not  been  recorded.  The  most  that 
counsel  say  In  their  affidavit  is  that  they  in- 
advertently overlooked  the  statute,  and  Inad- 
vertently failed  to  discover  the  failure  to 
record  the  tax  title  documents.  This  simple 
showing  is  not  sufficient  to  Justify  this  court 
in  characterizing  the  order  denying  the  re- 
lief asked  for  an  abuse  of  Judicial  discre- 
tion; and,  moreover,  it  is  quite  clear  that 
counsel's  position  In  reference  to  the  appli- 
cation of  this  statute  is  not  sound.  In  other 
words,  the  failure  to  record  the  tax  title 
papers  Is  not  fatal  to  the  validity  of  the 
title.  The  tax  sale  took  place,  and  defend- 
ant's title  was  fuHy  perfected  by  proper  no- 
tice of  expiration  of  redemption,  long  be- 
fore the  passage  of  the  statute.  It  can  have, 
therefore,  no  application  to  the  case,  for  the 
Legislature  could  not  by  this  method  take 
from  defendant  his  previously  vested  rights. 
State  ex  rel.  v.  Krahmer,  105  Minn.  422,  117 
N.  W.  780;  Gray  v.  St  Paul,  105  Minn.  19, 
116  N.  W.  1111. 

Order  affirmed. 


RED  LAKE  FALLS  MILLING  CO.  v.  CITT 
OF  THIEF  RIVER  FALLS  et  al. 

(Supreme  Court  of  Minnesota.    Oct.  22,  1900.) 

1.  Municipal  Cobpobatioks  (J  631*)  —  Fibb 
Limits— Erection  of  Wooden  Building. 

A  city  ordinance  established  fire  limits  and 
declared  it  unlawful  for  any  person  "to  erect  or 
attempt  to  erect  within  the  above-described  fire 
limits  any  wooden  building."  Beld,  the  moving 
of  an  already  constructed  wooden  building  from 
a  point  outside  to  a  location  within  such  fire 
limits  was  within  the  prohibition  of  the  ordi- 
nance. 

[Ed.  Note. — ^For  other  cases,  see  Municipal 
Corporations,  Ont  Dig.  |  1387:  Dec.  Dig.  i 
631.»] 

(Syllabus  by  the  Court) 

2.  Municipal  Corpobations  (|  603*)— Obdi- 
nances— Fire  Limits— "Erect." 

The  word  "erect,"  as  used  in  an  ordinance 
forbidding  persons  to  "erect"  any  wooden  build- 
ing within  certain  fire  limits,  does  not  mean  the 
present  construction  and  adjustment  of  its  com- 
ponent parts  to  the  smallest  detail ;  and  though 
ordinarily  the  word  "erect"  has  a  different 
meaning  from  the  word  "move,"  it  is  to  be  con- 


•For  other  cues  im  same  topic  and  section  NUMBSR  Is  Dec.  *  Am.  Digs.  1$07  to  date,  *  Reporter  Indezw 


Digitized  by  VjOOQ  l€ 


Minn.)     RED  LAEB  FALLS  HILLING  CO.  t.  OITT  OF  THIEF  RIVER  FALLS.     873 


Btmed  in  the  ordinance  as  prohibiting  the  mor- 
ing  of  snch  a  building  into  such  limits. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  i  1334;  Dec.  Dig.  f 
603.* 

For  other  definitions,  see  Words  and  Phrases, 
TOl.  3,  pp.  2451-2455.] 

Appeal  from  District  Court,  Red  Lake 
County ;   Wm.  Watts,  Judge. 

Action  by  the  Red  Lake  Falls  Milling  Com- 
pany against  the  City  of  Thief  River  Falls 
and  others.  Juclgment  for  plaintiff,  and  de- 
fendants appeal.    Rerersed. 

O.  HalTorsen,  for  ap];)ellant8.  B.  M.  Stan- 
ton (Martin  O'Brien,  of  counsel),  for  respond- 
ent 

O'BRIEN,  J.  The  council  of  the  city  of 
Thief  River  Falls,  by  an  ordinance  approved 
March  12,  1907,  establishing  fire  ilmits  with- 
in the  city,  provided:  "It  shall  not  be  lawful 
for  any  person  to  erect  or  attempt  to  erect 
within  the  above-described  fire  limits  any 
wooden  buUdlng.  •  ♦  •••  on  July  16, 
1907,  the  ordinance  was  amended  by  en- 
larging the  protected  territory.  The  amend- 
ment placed  within  the  prohibited  territory 
a  portion  of  the  railroad  right  of  way  adapt- 
ed for  the  establishment  of  elevators  and 
similar  structures.  At  the  time  of  the  ap- 
proval of  the  last  ordinance  the  plaintiff  had 
made  preparations  to  move  its  fully  con- 
structed wooden  building,  a  grain  elevator, 
to  a  new  location  upon  the  right  of  way. 
Neither  the  original  nor  the  proposed  site 
of  the  elevator  was  within  the  fire  limits 
as  first  established.  The  last  ordinance,  how- 
ever, extended  those  limits  so  as  to  Include 
the  new  or  proposed  site.  The  plaintiff, 
disregarding  the  ordinance,  began  to  remove 
the  elevator,  and  the  municipality,  through 
Its  police  force,  prevented  the  placing  of  the 
building  upon  the  proposed  location.  This 
suit  was  brought  to  restrain  the  city  and  its 
officers  from  further  Interference.  The  case 
was  submitted  upon  stipulated  facts,  and 
judgment  was  entered  for  plaintiff. 

The  defendants  contend  that  the  complaint 
did  not  state  a  cause  of  action,  and  that,  even 
If  the  stipulated  facts  sustained  the  trial 
court's  conclusions,  the  action  must  be  dia- 
missed.  We  cannot  agree  to  this  proposition. 
If,  upon  all  the  facts  properly  and  without 
objection  before  the  court,  a  plaintiff  is  enti- 
tled to  Judgment,  it  should  be  so  rendered, 
and,  if  necessary,  the  complaint  amended,  so 
as  to  cure  any  variance  between  the  pleading 
and  the  proof.  Erickson  v.  Fisher,  51  Minn. 
800,  53  N.  W.  63a 

We  bold,  however,  that  the  ordinance  as 
amended  was  sufficiently  broad  to  prohibit 
the  removal  of  a  fully  constructed  wooden 
building  from  a  point  outside  of  the  estab- 
lished fire  limits  to  a  location  within  those 
limits.  The  language  of  the  ordinance  is  that 
It  shall  not  be  lawful  to  "erect"  any  wooden 


building,  and  It  is  insisted  that  this  language 
does  not  prohibit  the  placing  or  establishment 
of  a  building  at  that  character  within  the 
prohibited  territory.  If  it  was  constructed  out- 
side the  prescribed  Ilmits.  This  seems  alto- 
gether too  narrow  a  construction  to  place  up- 
on the  language  of  the  ordinance.  It  is  true 
that  ordinarily  the  word  "erect"  has  a  differ- 
ent meaning  from  the  word  "move" ;  but  It 
is  not  true  that  to  erect  a  building  means  the 
present  construction  and  adjustment  of  Its 
component  parts  to  the  smallest  detail.  Thus, 
in  this  instance,  the  construction  of  the  foun- 
dation, supports,  or  driveways  for  the  eleva- 
tor in  its  new  location  would  be  pro  tanto 
an  erection  of  the  building.  We  think  the 
language  of  the  ordinance  Is  sufficient  to  make 
it  unl&wful  to  place  within  the  fire  limits  a 
building  not  there  before. 

The  plaintiff  claims  the  ordinance  was 
void  because  of  excessive  penalties  provided 
for  its  violation.  The  propriety  of  the  penal- 
ties is  not  Involved  in  this  suit,  and  excessive 
penalties  ordinarily  do  not  render  void  other 
and  Independent  parts  of  a  law  or  ordinance 
adopted  by  a  legislative  body  In  the  exercise 
of  its  police  power.  New  York  v.  Consolidat- 
ed Oas  Co.,  212  U.  S.  19,  29  Sup.  Ct  192,  53 
L.  Ed.  382. 

We  do  not  agree  with  plaintifTs  claim  thdt 
the  enforcement  of  the  ordinance  would  de- 
prive it  of  a  vested  right  under  section  2106, 
Rev.  Laws  1005,  which  requires  railways  to 
permit  the  construction  of  elevators  upon  the 
right  of  way.  The  statute  makes  no  provi- 
sion as  to  the  materials  of  which  the  build- 
ing is  to  be  constructed,  and  the  ordinance, 
if  a  reasonable  regulation,  does  not  conflict 
with  the  statute  of  the  state.  The  plaintiff 
had  no  vested  rights  under  the  statute.  Pear- 
sail  V.  G.  N.  Railway  Co.,  161  U.  S.  646,  16 
Sup.  Ct  705,  40  L.  Ed.  838. 

If  the  respondent's  claim  that  the  ordi- 
nance was  unreasonable  as  applied  to  the 
particular  location  proposed  for  the  elevator 
had  been  made  an  issue  and  litigated  in  the 
district  court,  there  were,  as  the  record 
shows,  many  drcumstances  tending  to  sus- 
tain that  claim ;  but  no  such  issue  was  made, 
nor  do  we  consider  it  was  an  issue  tried  by 
mutual  consent,  upon  which  evidence  was 
received.  It  was  not  mentioned  by  the  learn- 
ed trial  Judge  in  his  findings  or  memorandum, 
and  the  brief  description  given  of  the  situa- 
tion is  not  sufficient  to  enable  this  court  to 
come  to  a  final  conclusion  upon  that  question. 
It  is  unusual  to  find  fire  limits  In  cities  of  the 
size  of  Thief  River  Falls  extended  as  In  this 
ordinance;  but,  before  the  ordinance  can  i>e 
held'  to  be  unreasonable,  the  circumstances 
surrounding  the  locality  must  be  shown  with 
considerable  detail,  as  well  as  each  circum- 
stance bearing  upon  the  question.  If  upon 
a  proper  application  to  the  district  court  the 
complaint  is  amended,  so  as  to  present  an 


4'or  othtr  caMi  se«  lame  topic  and  lectlon  KDUBBR  In  Dec.  *  Am.  Dies.  IMT  to  dat«,  *  Reporter  Indezei 


Digitized  by  VjOOQ  l€ 


874 


122  NOBTHWBSTEBN  REPOBTEB. 


(Mian. 


issue  as  to  the  reasonableness  of  tbe  ordi- 
uance,  the  qucSstlon  will  be  for  trial  in  that 
court. 

Tbe  Judgment  appealed  from  Is  reversed, 
and  a  new  trial  ordered. 


PAULSRUD  v.  PETEaiSON, 
(Supreme  Ck>urt  of  Minnesota.     Oct.  22,  1909.) 

Deeds  (I  211*)— Fraud— Evidence. 

lo  an  action  to  have  a  deed  rescinded  and 
to  recover  baclc  the  purchase  price  on  the  ground 
of  fraudulent  representations  by  the  vendor  as 
to  tbe  condition  of  the  title,  with  a  guaranty 
that  the  land  was  free  from  any  incumbrance, 
evidence  h^ld  to  show  fraud,  and  that  a  subse- 
quent promise  by  defendant  to  pay  off  a  mort* 
gage  on  the  property  was  immaterial,  and  in- 
sufficient to  change  the  relation  of  the  parties  as 
fixed  at  the  time  of  the  execution  of  the  con- 
tract. 

[Eid.  Note.— For  other  cases,  see  Deeds,  Cent 
Dig.  H  644,  645 ;   Dec  Dig.  {  211.*] 

On  reargument.    Reversed,  and  new  trial 
granted. 
For  former  opinion,  see  121  N.  W.  898. 

PER  CURIASf.  This  case  was  affirmed  on 
a  former  appeal  (121  N.  W.  898)  on  the 
ground  that  the  evidence  was  insufficient  to 
sustain  the  plaintiff's  allegations  of  fraud. 
I'pon  reargument,  our  attention  has  been 
called  to  certain  parts  of  the  record,  which 
were  evidently  overlooked  upon  tbe  first 
hearing,  and  we  have  accordingly  .recon- 
sidered the  case. 

In  tbe  former  opinion  it  was  stated  that 
respondent  represented  tbe  land  to  be  free 
from  Incumbrance,  and  at  tbe  same  time  in- 
formed appellant  that  be  (respondent)  had 
executed  a  mortgage  of  $800  thereon  and  de- 
livered It  to  one  Lund  for  negotiation.  It 
was  also  stated  that  after  the  trade  was 
made  respondent  discovered  tbe  mortgage 
bad  been  negotiated  by  Lund,  so  Informed 
appellant,  and  offered  to  pay  off  tbe  mort- 
gage. The  only  testimony  received  at  tbe 
trial  was  that  of  appellant  and  his  son,  and 
was  to  tbe  effect  that  respondent  represented 
the  land  was  free  from  incumbrance;  that 
he  had  made  application  for  a  loan  thereon, 
and  bad  forwarded  the  abstract  to  Eau 
Claire,  Wis.;  and  that  be  would  recall  tbe 
abstract  and  turn  it  over  to  appellant  Not 
long  after  tbe  deal  was  consummated,  appel- 
lant wrote  tbe  register  of  deeds  of  the  prop- 
er county  in  North  Dakota,  where  the  land 
was  situated,  and  ascertained  that  there 
was  of  record  a  mortgage  of  $800,  executed 
to  Lund  and  assigned  to  a  third  party.  Ap- 
pellant then  Informed  respondent  of  these 
facts,  who  offered  to  pay  off  the  mortgage. 
Uotb  appellant  and  respondent  were  residents 
of  Minneapolis,  where  the  deal  was  negotiat- 
ed, had  no  personal  knowledge  of  the  land, 
and  dealt  with  each  other  upon  the  theory 
that  it  was  free  from  incumbrance.    All  that 


respondent  stated  to  appellant  with  reference 
to  a  mortgage  was  that  be  had  made  applica- 
tim  for  a  loan  and  bad  forwarded  the  ab- 
stract to  Eaa  Claire;  "that  he  would  stop 
tbe  mortgage"  and  guarantee  the  land  clear 
from  Incumbrance.  He  said  nothing  about 
having  executed  a  mortgage,  and  this  lan- 
guage does  not  warrant  tbe  conclusion  that 
a  mortgage  had  been  executed.  There  is  a 
material  difference  between  the  fact  and 
the  statement  made,  and  It  is  only  reasonable 
to  assume  that,  had  appellant  known  that 
a  mortgage  had  been  executed  and  placed  for 
negotiation,  be  would  have  declined  to  com- 
plete tbe  trade. 

For  these  reasons  tbe  court  is  of  opinion 
that  appellant  made  out  a  prima  facie  case 
of  fraud,  that  the  subsequent  promise  of  re- 
spondent to  pay  off  tbe  mortgage  was  Imma- 
terial, and  did  not  change  the  relation  of  the 
parties  as  fixed  at  the  time  of  the  completion 
of  the  contract 

Order  reversed,  and  new  trial  granted. 


PHILLIPS  V.  MENOMONIH  HYDRAULIC- 
PRESS  BBIC!K  CO. 
(Supreme  Court  of  Minnesota.    Oct  22,  1909.) 

1.  Evidence  (t  471*)  — Opiwion  Evidence— 
Conclusion  or  Witness. 

When  tbe  performance  of  a  contract  is  a 
matter  of  controversy,  a  witness  may,  in  the 
discretion  of  the  trial  court,  be  interrogated  as 
to  whether  or  not  he  has  performed  the  same, 
provided  the  answer  amonnts  to  no  more  than 
a  mere  shorthand  rendering  of  tbe  facts;  but, 
where  the  terms  of  the  contract  are  Indefinite, 
the  witness  must  state  the  facts  constituting 
compliance,  and  not  conclusions  or  opinions. 

[EU.  Note. — For  other  cases,  see  Evidence, 
Cent  Dig.  fi  2149-2151,  2170;  Dec.  Dig.  | 
471.*] 

2.  Evidence  (S  471*)— Opinion  Evidence- 
Conclusion  OP  Witness. 

Held,  that  the  following  qnestioB  was  opea 
to  the  objection  that  it  called  for  a  conclusion 
of  the  witness:  "Q.  I  will  ask  whether  or  not 
the  Independent  Printing  Companies  carried  out 
its  part  of  the  contract  by  having  printed,  pub- 
lished, and  distributed  the  advertising  calendar 
mentioned  in  the  contracts,  furnishing  a  copy  ot 
such  calendar  to  practically  every  architect, 
contractor,  builder,  supply  and  material  man, 
firm  or  coiporation  of  prominence  in  building 
trades  in  Minneapolis  and  vicinity,  and  St  Paiu 
and  vicinity?" 

[Ed.  Note.— For  other  cases,  see  Evidence. 
Cent  Dig.  SS  2149-2161.  2170;  Dec.  Dig.  $ 
471.*] 

3.  CoNTBACTs  (J  322*)— Actions  — Pbesump- 

TIONB  AND  BuaOKN  OF  PSOOF. 

The  evidence  was  not  sufficient  to  make  out 
a  prima  facie  case  of  delivery. 

[B:d.  Note.— For  other  cases,  see  Contracts, 
Dec.  Dig.  {  322.*] 

(Syllabus  by  the  Court.) 

Appeal  from  Municipal  Ck>urt  of  Minne- 
apolis; E.  F.  Walte,  Judge. 

Action  by  Harold  W.  Phillips,  as  tbe  In- 
dependent Printing  Companies,  against  tbe 
Menomonie  Hydraulic-Press  Brick  Company. 


*For  other  caaei  lee  same  topic  and  section  NUMBER  In  Deo.  *  Am.  Digs.  U07  to  date,  *  Reporter  ludixae 


Digitized  by  VjOOQ  l€ 


Minn.) 


PHILLIPS  ▼.  MBNOHONIB  HYDRAULIC-PRESS  BRIOE  CX>. 


875 


Jadgment  for  defendant,,  and  plalntUC  ap- 
peals.   Affirmed. 

CbaMee  J.  Tryon,  for  appellant  O.  3. 
Rockwood,  for  respondent 

LEWIS.  J.  Appelant  doing  businea  un- 
der the  name  of  Independent  Printing  Com- 
panies, and  respondent  entered  Into  a  con- 
tract in  writing  under  the  terms  of  which 
api>ellaDt  agreed  to  print  and  distribute  a 
calendar  for  the  year  1908,  containing  cer- 
tain advertising  matter,  and  providing: 
"That  copies  of  said  calendar  are  to  be  de- 
livered free  to  the  office  of  practically  every 
architect  builder,  contractor,  supply  and  ma- 
terial man,  firm  or  corporation  ot  prominence 
in  the  building  trade  in  Minneapolis."  This 
action  was  brought  to  recover  the  amount 
claimed  to  be  due.  The  trial  court  found 
th&t  appellant  had  failed  to  deliver  the 
calendar  as  provided  by  the  terms  of  the 
contract 

During  the  course  of  the  trial  appellant's 
deposition  was  read,  in  which  the  following 
question  was  propounded:  "Q.  I  will  ask 
whether  or  not  the  Independent  Printing 
Companies  carried  out  its  part  of  the  contract 
by  having  printed,  published,  and  distributed 
the  advertising  calendar  mentioned  in  the 
contracts,  furnishing  a  copy  of  such  calendar 
to  practically  every  architect,  contractor, 
builder,  supply  and  mateHal  man,  firm  or 
corporation  of  prominence  in  building  trades 
in  Minneapolis  and  vicinity,  and  St  Paul 
and  vicinity?"  The  question  was  objected  to 
as  irrelevant  incompetent  and  immaterial, 
not  calling  for  the  facts.  The  trial  court  re- 
served its  decision,  and  the  witness  answer- 
ed: "It  did."  At  the  close  of  the  case  the 
objection  was  sustained,  and  the  answer 
stricken  out  Appellant  further  testified 
tliat  the  United  States  mail  was  used  for 
the  individual  copy  deliveries;  that  thesam» 
were  mailed  In  accordance  with  the  United 
States  government  regulations,  and  the  post- 
age prepaid;  that  the  mailing  lists  for  Min- 
neapolis and  St  Paul  had  been  compiled 
from  the  telephone  directories,  and  from 
Dun  and  Bradstreet's  credit  books  for  the 
vicinity  of  those  cities,  and  that  special 
names  had  been  furnished  by  various  ad- 
vertisers. Appellant  then  introduced  in  evi- 
dence the  classified  lists  of  the  Northwestern 
and  TrI-State  Telephone  Companies'  direct- 
ories for  Minneapolis  and  St  Paul.  The 
court  sustained  an  objection  to  the  lists, 
unless  the  specific  lists  and  subdivisions  of 
the  general  lists  upon  which  appellant  relied 
were  offered  in  evidence.  Thereupon  appel- 
lant offered  the  Northwestern  Telephone  list 
of  architects,  builders,  and,  under  the  general 
head  of  contractors,  the  list  of  carpenters 


and  cut  atone;  but  the  court  sustained  an , 
objection  to  the  list  of  general  contractors 
and  plasterers.  From  the  Trl-State  Tele- 
phone directory  appellant  offered  a  list  of 
architects,  building  materials,  and  contract- 
ors and  builders,  which  were  received  in 
evidence  over  the  objection  of  respondents; 
but  the  court  declined  to  receive  the  list 
under  the  headings  manufacturing  concerns, 
lime  and  cement  and  supplies. 

Exceptions  to  the  general  rule  that  wit- 
nesses must  state  facts  within  their  knowl- 
edge, and  not  conclusions  or  opinions,  should 
not  be  extended,  except  as  a  necessity  to 
prevent  a  failure  of  Justice  and  when  better 
evidence  cannot  be  bad.  As  stated  by  Mr. 
Wharton  (Law  of  Eividence,  |  510),  when  the 
opinion  of  the  witness  is  the  mere  shorthand 
rendering  of  the  facts,  then  the  opinion  can 
be  given,  subject  .to  cross-examination  as 
to  the  facts  on  which  it  Is  based.  The  brief 
method  of  examination  adopted  by  appel- 
lant may  safely  be  followed  in  the  discre- 
tion of  the  trial  court  In  some  instances ; 
but  It  should  not  be  applied  to  a  case  where 
the  contract  is  not  definite  as  to  its  terms. 
This  contract  required  appellant  to  mall  the 
calendar  to  "practically  every  architect,  con- 
tractor, supply  and  material  man,"  and  to 
"every  firm  of  prominence  in  the  building 
trade"  in  the  two  cities  mentioned.  This 
left  it  an  open  question  as  to  what  constitut- 
ed "practically"  such  parties,  and  what  firms 
were  supply  and  material  men,  and  which 
were  in  the  building  trade,  and  which  were 
of  "prominence"  In  tliat  trade.  The  question, 
and  Its  answer,  left  the  determination  of 
these  uncertain  elements  to  the  opinion  of 
the  witness,  and  the  trial  court  correctly  sus- 
tained the  objection. 

The  other  assignment  is  to  the  effect  that 
the  court  erred  in  holding  that  the  evidence 
was  not  sufficient  to  make  out  a  prima  facie 
case  of  delivery  of  the  calendar,  notwith- 
standing the  answer  was  stricken  out  The 
mere  statement  by  appellant  in  his  deposition 
that  the  mailing  list  had  been  compiled  from 
the  telephone  directories  was,  of  course,  in- 
sufficient In  Itself,  to  prove  delivery;  and 
at  the  trial  appellant  undertook  to  Identify 
the  lists  In  the  telephone  books  with  the 
mailing  list  referred  to  in  the  deposition. 
Conceding  that  a  prima  facie  case  was  made 
out  as  to  the  lists  received  in  evidence,  sev- 
eral lists  were  not  received,  and  the  iden- 
tification remained  incomplete.  The  evi- 
dence wholly  falls  to  show  to  what  supply 
and  material  men,  and  to  what  firms  engaged 
in  the  building  trade,  the  calendar  was  mail- 
ed, and  the  ruling  of  the  court  sustaining 
the  objection  to  certain  of  the  lists  was  not 
assigned  as  error. 

Affirmed. 


Digitized  by 


Google 


876 


122  NORTHWESTERN  REPORTER. 


(Minn. 


EVANS  T.  CHICAGO  ft  N.  W.  RT.  CO. 
(Supreme  Court  of  Minnesota.    Oct  29,  1909.) 

1.  CoMMEBCK  (8  60*)  —  Rboui^tioit  —  Inspec- 
tion OF  Animals. 

Chapter  35S,  p.  491,  Laws  1907,  an  act 
to  protect  public  health  and  health  of  domestic 
animals  by  providing  for  the  inspection  of  ani- 
mals imported  into  this  state,  does  not  violate 
section  8,  art.  1,  of  the  Constitution  of  the  Unit- 
ed States,  vesting  in  Congress  the  power  to  reg- 
ulate commerce  among  the  several  states. 

[Ed.  Note.— For  other  cases,  see  Commerce, 
Cent.  Dig.  i  53 ;   Dec.  Dig.  S  50.«] 

2.  Nkouoence  (I  66*)— Hfficiknt  Oaxtsb  or 

INJUBT. 

The  defendant  brought  into  this  state  a 
horse  afflicted  with  the  glanders  without  com- 
plying with  the  statute  as  to  inspection,  and  de- 
livered it  to  the  owner,  who  on  the  same  day 
sold  it  to  the  plaintiff,  who  did  not  know  that 
the  horse  was  diseased.  The  horse  was  Inspect- 
ed and  killed  nnder  the  direction  of  the  live 
stock  sanitary  board,  to  the  damage  of  the  plain- 
tiff in  the  sum  of  $100.  Held,  that  the  defend- 
ant's violation  of  the  statute  was  the  efficient 
and  dominant  cause  of  the  plaintiffs  damages. 
[Ed.  Note.— For  other  cases,  see  Negligence, 
Cent.  Dig.  |  70;   Dec  Dig.  i  56.*] 

(Syllabus  by  the  Ooxitt.) 

Appeal  from  District  Court,  Lyon  County ; 
i.  M.  Olson,  Judge. 

Action  }>y  D.  H.  EiVans  against  the  Chicago 
ft  Northwestern  Railway  Company.  Judg- 
ment for  plaintiff,  and  defendant  appeals. 
Affirmed. 

Brown,  Abbott  ft  Somsen,  for  appellant. 
N.  J.  Robinson,  for  respondent 

START,  C.  J.  This  action  was  brought  in 
the  district  court  of  the  county  of  Iiyon  to 
recover  damages  alleged  to  have  been  sustain- 
ed  by  the  defendant's  violation  of  the  provi- 
sions of  chapter  355,  p.  491,  Laws  1907.  The 
case  was  tried  by  the  court  without  a  jury. 
Findings  of  fact  were  made,  and  as  a  con- 
clusion of  law  therefrom  Judgment  was  order- 
ed and  entered  for  the  plaintiff  in  the  sum  of 
$100,  from  which  the  defendant  appealed. 

The  facts  found  by  the  court  are  to  the 
effect  following:  The  defendant  is,  and  was 
during  the  times  hereinafter  stated,  a  com- 
mon carrier  operating  a  railroad  line  t>etween 
Tracy,  this  state,  and  Pierre,  in  the  state 
of  South  Dakota.  On  August  4,  1907,  tho 
defendant,  as  such  carrier,  brought  into  this 
state,  and  to  Tracy  from  Pierre,  over  its 
railway  line,  SO  horses,  owned  by  Messrs. 
Harlin  ft  Hoerr,  and  on  August  14,  1907,  de- 
livered one  of  the  horses  from  its  car  at 
Tracy  to  such  owners,  who  on  that  day  sold 
it  to  the  plaintiff  for  $100,  which  he  paid 
therefor.  The  horse,  at  the  time  the  de- 
fendant delivered  it  to  the  owners  thereof, 
and  when  they  sold  it  to  the  plaintiff,  had  the 
glanders,  and  was  of  no  value  wliatever  by 
reason  thereof.  The  plaintiff  did  not  then 
know  that  the  horse  had  the  glanders,  but  he 
then  knew  that  the  horse  had  been  so  brought 


Into  the  State  from  Pierre  by  the  defendant. 
None  of  the  horses,  at  any  time  prior  to  the 
sale  of  one  of  them  to  the  plalntifl*  had 
been  examined  by  the  state  veterinarian  of 
South  Dakota,  nor  by  a  veterinarian  acting 
under  the  order  of  the  live  stock  sanitary 
board  of  this  state,  nor  by  a  veterinarian  of 
the  United  States  Bureau  of  Animal  Indus- 
try, nor  by  any  other  person,  and  found  free 
from  the  glanders.  Nor  was  any  certificate 
of  health  or  duplicate  thereof  of  the  horses 
ever  made  and  forwarded  to  the  live  stock 
sanitary  board  of  tills  state,  nor  was  such 
board  ever  notified  that  the  horses  had  not 
been  so  inspected.  Tracy  was  a  suitable  place 
for  holding  the  horses  for  examination  by 
such  board,  but  the  defendant  did  not  there 
so  hold  them.  The  horse  so  sold  to  the 
plaintiff,  which  was  brought  into  this  state 
for  work  and  breeding  purpose^  was  there- 
after, and  on  May  29,  1908,^  examined  by  a 
veterinarian,  acting  under  the  order  of  the 
live  stock  sanitary  board,  and  killed  because 
it  had  the  glanders,  with  which  disease  It  was 
afiiicted  when  it  was  so  delivered  and  sold 
to  the  plaintiff.  The  plaintiff,  by  reason  of 
the  defendant's  failure  to  comply  with  the 
provisions  of  the  statute,  as  stated,  sustained 
damages  In  the  sum  of  $100. 

The  defendant  here  urges  that  "the  trial 
court  erred  in  holding  that  the  horse  In 
question  was  afflicted  with  glanders  before 
it  was  brought  into  the  state  of  Minnesota, 
and  that  the  Inspection  required  by  law 
would  have  disclosed  the  horse  to  have  been 
diseased."  The  trial  court  did  not  find  or 
hold  that  an  Inspection  of  the  horse  as  re- 
quired by  law  would  have  disclosed  that  the 
horse  was  diseased,  nor  Is  it  material  wheth- 
er a  compliance  with  the  law  would  have 
disclosed  the  diseased  condition  of  the  horse ; 
for,  if  it  did  not,  then  the  horse  would  have 
been  found  free  from  the  disease,  and  an 
official  certificate  issued  accordingly,  which 
would  have  protected  the  defendant  in  any 
event.  The  defendant  stipulated  on  the  trial 
that  the  horse  had  the  glanders  on  the  day 
the  plaintiff  purchased  It,  which  was  on  the 
day  the  defendant  delivered  the  horse  from 
Its  car  to  the  owners.  This  admission  fairly 
Justifies  the  inference  of  fact  that  the  horse 
was  diseased  before  the  defendant  delivered 
it 

It  is  further  claimed  that  there  is  no  evi- 
dence to  sustain  the  finding  that  the  horse, 
which  was  a  mare,  was  brought  Into  this 
state  for  work  and  breeding  purposes.  The 
evidence  tends  to  show  that  the  horse  was 
purchased  by  the  plaintiff,  on  the  day  It  was 
delivered  from  the  defendant's  car  to  the 
owners,  for  work  and  breeding  purposes,  par- 
ticularly for  driving  purposes;  that  is,  for 
work.  The  trial  court  might  fairly  infer 
that  one  of  the  purposes  for  which  the  horse 
was  brought  into  the  state  by  its  owners  was 
the  one  for  which  It  was  Immediately  sold. 


•For  other  case*  sea  lame  topic  and  section  MCMBBR  In  Deo.  *  Am.  Digs.  1M7  to  data,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Minn.) 


EVANS  V.  CHIOAQO  A  N.  W,  RY.  CO. 


877 


There  was  no  evidence  to  fhe  contrary-  We 
Are  of  the  opinion  that  the  facts  found  by 
the  court  are  sustained  by  the  evidence.  The 
«lefendant,  however,  Insists  that  the  facts 
found  do  not  sustain  the  conclusion  of  law 
«nd  judgment  of  the  court. 

1.  The  first  reason  urged  In  support  of 
this  claim  is  that  chapter  856,  p.  491,  Laws 
1807,  upon  which  the  action  Is  based,  is  un- 
constitutional, for  the  reason  that  it  violates 
section  8  of  article  1  of  the  Constitution  of 
the  United  States,  vesting  in  Congress  power 
to  regulate  interstate  commerce.  The  title 
of  the  statute  is:  "An  act  to  protect  the 
public  health  and  health  of  domestic  animals 
by  providing  for  the  Inspection  of  live  stock 
Imported  into  the  state  of  Minnesota  for 
breeding,  dairy,  work  or  feeding  purposes." 
-Section  1  provides  that  it  shall  be  unlawful 
for  any  transportation  company  to  bring  In- 
to the  state  of  Minnesota  any  of  the  domestic 
4tnimals  therein  named,  Including  horses,  for 
work,  feeding,  breeding,  or  dairy  purposes, 
unless  they  have  been  examined  and  found 
free  from  the  contagious  diseases  therein 
named,  including  glanders,  which  freedom 
'from  disease  shall  be  established  by  a  cer- 
tificate of  health,  signed  by  a  state  veteri- 
narian of  the  state  from  which  such  ship- 
ment is  made,  or  of  this  state,  or  of  the  Unit- 
-ed  States,  a  duplicate  of  such  certificate  to 
be  attached  to  the  bill  of  lading.  Section  2 
provides  that  where  such  certificate  has  not 
been  obtained  the  transportation  company 
shall  notify  the  live  stock  sanitary  board  and 
hold  such  animals  at  the  first  station  with- 
in this  state  where  there  are  suitable  facili- 
ties for  holding  animals  for  Inspection  by 
-such  I>oard,  the  inspection  to  be  made  at  the 
expense  of  the  owner.  Section  3  provides 
that  any  tcansportation  -company  violating 
the  provisions  of  the  statute  shall  be  guilty  of 
a  gross  misdemeanor  and  fined  not  less  than 
$1,000,  or  be  imprisoned  for  not  more  than 
one  year;  and,  further,  that  such  company 
or  agent  shall  be  liable  to  any  person  Injured 
for  the^fuU  amount  of  damages  that  may  re- 
sult from  a  violation  of  the  statute.  Section 
4  provides  that  the  provisions  of  the;  statute 
shall  not  apply  to  cattle,  hogs,  and  sheep 
shipped  to  points  within  the  state  where  the 
United  States  Bureau  of  Animal  Industry 
maintains  inspection. 

The  statute  In  question  is  a  police  meas- 
ure, Intended  to  prevent  the  bringing  into  this 
state,  for  the  purposes  named  in  the  statute, 
domestic  animals  having  the  glanders  or 
other  contagious  or  infectious  disease,  and 
thereby  protect  the  public  health  and  the 
liealtb  of  domestic  animals  within  the  state. 
If  it  is  in  no  just  sense  an  attempt  to  reg- 
ulate, impede,  or  unreasonably  burden  in- 
terstate commerce,  but  a  good-faith  act  for 
the  protection  of  the  health  and  property  of 
the  people  of  the  state,  it  is  constitutional, 
although  it  may  necessarily  burden  inter- 
state commerce  to  some  extent,  but  not  un- 
reasonably so.    Railroad  Co.  v.  Husen,  95  U. 


S.  466,  24  L.  Bd.  627 ;  Minnesota  v.  Barber, 
136  n.  S.  318,  10  Sup.  Ct  862,  84  L.  Bd.  456; 
Missouri,  K.  &  T.  Ry.  v.  Haber,  169  U.  S. 
613,  18  Sup.  Ct.  488,  42  L.  Ed.  878 ;  Rasmus- 
sen  V.  Idaho,  181  U.  S.  198,  21  Sup.  Ct  694, 
46  L.  Ed.  820.   . 

Counsel  for  the  defendant  insist  that  the 
first  two  cases  cited  support  their  conten- 
tion that  the  staAite  is  invalid  for  the  rea- 
son claimed.  Each  of  the  cases  recognizes 
the  rule  that  a  state,  in  the  exercise  of  Its 
police  power,  may  for  self -protection  enact 
sanitary  laws  and  establish  reasonable  in- 
spection regulations  to  prevent  the  bring- 
ing of  animals  into  the  state  having  con- 
tagious or  infectious  diseases.  It  was,  how- 
ever, held  that  the  particular  statute  under 
consideration  in  each  case  was  not  a  leg- 
itimate exercise  of  the  police  power  of  the 
state,  but  an  unreasonable  burden  upon  and 
interference  with  interstate  commerce.  In 
the  Husen  Case,  a  statute  of  Missouri  pro- 
vided that  no  Texas,  Mexican,  or  Indian  cat- 
tle, not  kept  the  entire  previous  winter  in 
that  state,  should  be  driven  or  otherwise 
conveyed  into  or  remain  in  any  county  of 
that  state  between  the  1st  day  of  March  and 
the  1st  day  of  November  in  each  year.  Obvi- 
ously the  statute  was  neither  a  quarantine 
nor  an  inspection  law,  but  an  absolute  ex- 
clusion from  the  state  for  eight  months  of 
each  year  of  all  cattle  of  the  class  named, 
without  reference  to  whether  they  were 
sound  or  diseased,  and  the  court  held  the 
statute  to  be  a  Siaiit  intrusion  upon  the 
exclusive  domain  of  Congress." 

The  Minnesota  statute  considered  and  held 
unconstitutional  in  the  Barber  Case  penal- 
ized the  selling  in  this  state  for  human  food 
any  fresh  beef,  veal,  mutton.  Iamb,  or  pork, 
not  taken  from  an  animal  inspected  and 
certified  within  this  state  by  a  local  inspect- 
or; that  is,  no  meat  could  be  sold  within 
the  state  unless  the  animal  from  which  it 
was  taken  was  inspected  on  the  hoof  with- 
in the  state.  The  necessary  effect  of  the 
statute  was  to  exclude  from  the  markets  of 
this  state  the  products,  although  sound  and 
wholesome,  of  all  packing  plants  located 
outside  of  the  state.  Manifestly  the  statute 
as  Held  by  the  court,  was  not  a  reasonable 
and  good-faith  inspection  law,  but  an  unnec- 
essary burden  upon  interstate  commerce. 

It  is  clear  that  neither  of  these  cases  sup- 
ports the  contention  of  the  defendant,  for 
the  statute  here  under  consideration  is  es- 
sentially different  from  those  construed  in 
the  cases  cited. 

In  the  Haber  Case  a  Kansas  statute  pro- 
viding for  the  inspection  and  quarantine  of 
Texas  cattle  was  sustained,  and  in  doing 
so  the  court,  by  Harlan,  J.,  said:  "Neither 
corporations  nor  individuals  are  entitled,  by 
force  alone  of  the  Constitution  of  the  Unit- 
ed States  and  without  liability  for  Injury 
therefrom  resulting  to  others,  to  bring  into 
the  state  from  another  state  cattle  liable 
to  Impart  or  capable  of  communicating  dis- 


Digitized  by  VjOOQ  l€ 


878 


122  NORTHWESXBRN  REFOBIEB. 


^no. 


ease  to  domestic  animals.  The  contrary 
cannot  be  affirmed  nnder  any  sound  Inter- 
pretation of  the  Constitution.-  This  court, 
while  sustaining  the  power  ot  Congress  to 
regulate  commerce  among  the  states,  has 
steadfastly  adhered  to  the  principle  that 
states  possess,  because  they  have  never  sur- 
rendered, the  power  to  protect  health,  the 
public  morals,  and  the  public  safety  by  ai\y 
appropriate  legislation  to  that  end  which 
does  not  encroach  upon  rights  guaranteed 
by  the  national  Constitution,  nor  come  in 
contact  with  acts  of  Congress  passed  In  pur- 
suance of  that  instrument."  In  the  case  of 
Rasmussen  v.  Idaho,  181  U.  S.  198,  21  Sup. 
Ct.  594,  45  L.  Ed.  820,  a  state  statute  was 
held  valid  which  provided  that,  "whenever 
the  Governor  of  the  state  of  Idaho  has 
reason  to  believe  that  scab  or  any  other  in- 
fectious disease  of  sheep  has  become  epi- 
demic in  certain  localities  in  any  other  state 
or  territory,  or  that  conditions  exist  that 
render  sheep  likely  to  convey  disease,  he 
must  thereupon,  by  proclamation,  designate 
such  localities  and  prohibit  the  importation 
from  them  of  any  sheep  into  the  state,  ex- 
cept under  such  restrictions  as,  after  con- 
sultation with  the  state  sheep  inspector,  he 
may  deem  proper." 

An  examination  of  the  provisions  of  the 
statute,  which  is  the  basis  of  this  action, 
will  show  that  it  is  not  an  unreasonable  ex- 
ercise of  the  police  power  of  the  state,  but 
a  reasonable  and  necessary  exercise  of  the 
power  to  prevent  the  state  from  being  flood- 
ed with  animals  which  are  afflicted  with  or 
have  been  exposed  to  contagious  diseases 
from  other  states.  The  statute  has  no  ap- 
plication to  the  transportation  of  domestic 
animals  through  the  state,  for  by  its  terms 
its  operation  is  limited  to  animals  brought 
into  the  state  for  the  purposes  therein  nam- 
ed. Nor  is  an  Inspection  by  a  veterinarian, 
acting  under  the  authority  of  the  state  live 
stock  sanitary  board,  and  his  certificate,  the 
only  conclusive  evidence  that  such  animals 
are  free  from  any  contagious  or  infectious 
disease.  The  carrier  Is  protected  if  there 
is  attached  to  the  bill  of  lading  the  certifi- 
cate of  a  veterinarian  of  the  state  from 
which  the  animals  are  shipped,  or  of  the 
United  States  Bureau  of  Animal  Industry, 
or  of  the  live  stock  sanitary  board  of  this 
state.  The  only  burden  placed  upon  the 
carrier  Is  that  It  requires  the  shipper  to 
furnish  such  a  certificate  to  be  attached  to 
the  bill  of  lading. 

It  is  urged  by  defendant  that  there  is  no 
provision  of  the  statute  requiring  the  ship- 
per to  furnish  such  certificate,  and  he  may 
refuse  to  comply  with  the  request.  Sec- 
tion 2  of  the  statute  provides  for  such  a  con- 
tingency. The  carrier  in  such  a  case  may 
bring  the  animals  into  this  state  by  notify- 
ing the  state  live  stock  sanitary  board  that 
the  required  certificate  has  not  been  fur- 
nished by  the  shipper,  and  by  holding  the 
animals  at  the  first  station  within  the  state 


having  suitable  facilities  for  inspection  by 
such  board,  which  can  then  deal  with  them 
as  provided  by  Rev.  Laws  1905,  {  2158.  lu- 
a  word,  the  only  burden  placed  upon  the 
carrier  is  either  to  obtain  and  attach  to 
the  bill  of  lading  the  required  certificate  or 
to  notify  the  state  board  and  hold  the  aui 
mals  for  inspection  at  the  first  suitable  sta- 
tion within  this  state.  We  hold  that  the 
statute  does  not  violate  section  8,  art  1,  of 
the  Constitution  of  the  United  States. 

2.  The  second  alleged  reason  why  the 
Judgment  is  not  sustained  by  the  tacts 
found  by  the  trial  court  Is  to  the  effect  that 
there  is  no  finding  that  the  defendant  knew 
the  purpose  of  the  shipment  of  the  horse. 
There  was  neither  allegation  nor  evidence 
on  the  part  of  the  defendant  that  It  did 
not  know  the  purpose  of  the  shipment; 
hence  there  was  no  such  Issue  before  the 
court  It  the  defendant  had  alleged  in 
effect  in  its  answer  that  It  had  no  knowl- 
edge of  the  purpose  for  which  the  horses 
were  shipped,  and  was  unable  to  learn  by 
the  exercise  of  due  care,  and  had  sup- 
ported the  allegation  by  competent  evidence, 
the  case  of  Furley  v.  Railway  Co.,  90  Iowa. 
146,  67  N.  W,  719,  23  L.  R.  A.  73,  and  others 
cited  by  the  defendant,  would  be  in  point. 
Whether  our  statute  can  be  properly  con- 
strued so  as  to  make  want  of  knowledge  of 
the  purpose  of  the  shipment  a  defense  we 
have  no  occasion  here  to  decide,  for  It  was 
not  made  in  this  case. 

3.  The  last  contention  of  the  defendant, 
to  be  considered  is  to  the  effect  that  no  dam- 
ages resulted  from  the  defendant's  violation 
of  the  statute,  and  that  in  any  event  the 
plalntifTs  loss  of  the  horse  and  consequenc 
damages  were  not  the  proximate  result  of 
such  violation.  The  argumeut-ln  support  of 
this  claim  is  substantially  this:  "The  only 
damage  which  plaintiff  has  suffered  is  la 
purchasing  a  worthless  horse  of  Harlin  & 
Hoerr  and  paying  $100  for  it.  No  property 
has  become  lost,  injured,  or  depreciated  in 
value  by  reason  of  the  failure  to  have  the 
horse  inspected.  The  horse  was  worth  noth- 
ing in  the  hands  of  the  seller,  and  nothing 
in  the  hands  of  the  buyer.  The  horse  would 
have  been  worth  no  more  if  it  had  been  in- 
spected. The  proximate  cause  of  plaintiff's 
loss  was  in  buying  a  worthless  horse  and 
paying  $100  for  it  •  •  *  There  is  no 
evidence  that  any  Inspection  would  have 
disclosed  the  horse  in  question  to  have  been 
diseased."  The  fact  remains,  however,  that 
the  plaintiff  knew  that  the  horse  had  been 
brought  into  this  state  by  the  defendant  from 
South  Dakota,  and  he  had  a  right  to  assume 
that  it  bad  complied  with  the  law.  The 
findings  of  fact  Justify  the  conclusion  that 
if  the  defendant  had  refused  to  bring  th« 
horses  into  Minnesota  without  the  neces- 
sary certificate  being  attached  to  the  bill  of 
lading,  or  if,  when  they  reached  Tracy,  it 
had  notified  tlie  state  sanitary  board,  no 
damage  would  have  resulted  to  the  plain 


Digitized  by  VjOOQ  l€ 


Neb.) 


FBOIIHOLZ  V.  McGAHfiY. 


879 


tiff;  for  It  Is  admitted  that  the  horse  had 
the  glanders  on  the  day  the  defendant  de- 
livered it  from  its  car,  and  it  is  fair  to  pre- 
Bome  that  an  Inspection  would  have  disclos- 
ed Its  condition,  and  the  plaintiff  would  not 
have  purchased  it.  It  would  seem  to  fol- 
low that  his  damages  were  the  direct  and 
natural  result  of  the  defendant's  violation 
of  the  statute.  He  never  intended  to  pur- 
chase a  diseased  and  worthless  horse,  and 
the  procuring  cause  of  his  doing  so  was  the 
defendant's  breach  of  duty.  While  it  is 
true,  as  claimed,  that  the  plaintiff  would 
not  have  been  damaged  if  he  had  not  pur- 
chased the  horse,  it  is  equally  true  that  ha 
could  not  have  purchased  It  If  the  defend- 
ant had  observed  the  law  and  notiOed  the 
board ;  for,  had  it  done  so,  the  horse  would 
have  been  inspected  and  quarantined  at 
Tracy.  This  case,  then,  falls  within  the 
rule  that,  although  a  negligent  and  unlawful 
act  be  removed  from  the  Injury  by  an  inter- 
mediate cause,  yet,  if  the  guilty  party  ought 
reasonably  to  have  anticipated  that  injury 
might  result  to  others  from  his  act,  it  is 
deemed  to  be  the  proximate  cause  of  the 
injury.  Schubert  v.  Clark,  49  Minn.  331,  51 
N.  W.  1103,  15  li.  R.  A.  818,  32  Am.  St.  Rep. 
559;  Christiansen  v.  Railway  Co.,  67  Minn. 
94,  69  N.  W.  640;  Teal  v.  American  Mining 
Co.,  84  Minn.  820,  87  N.  W.  837;  M.  &  St 
P.  Ry.  Co.  v.  Kellogg.  94  U.  S.  469,  24  L. 
Ed.  256;  Skinn  ▼.  Reutter,  135  Mich.  57, 
97  N.  W.  152.  63  L.  R.  A.  743,  106  Am.  St 
Rep.  384 ;   6  Words  and  Phrases,  5765. 

It  is  to  be  noted  that  the  statute  upon 
which  this  action  is  based  gives  a  cause  of 
action,  not-  simply  to  those  for  whose  pro- 
tection it  was  intended,  but  to  any  person  in- 
jured, for  the  full  amount  of  damages  that 
may  result  from  the  violation  of  the  act. 
The  imposition  of  this  civU  liability  Is  one 
of  the  provisions  selected  by  the  Legisla- 
ture to  secure  an  observance  of  the  act  by 
transportation  companies.  It  is  therefore 
immaterial  in  this  action  that  the  statute 
does  not  prohibit  the  bringing  into  this 
state  diseased  domestic  animals  for  sale. 
Rosse  V.  Railway  Co.,  68  Minn.  216,  71  N. 
W.  20,  87  L.  R.  A.  591,  64  Am.  St  Rep.  472. 

We  hold  that  the  violation  of  the  statute 
by  the  defendant  was  the  efficient  and  dom- 
inant cause  of  the  plalntifTs  damages. 

Judgment  affirmed. 


FROMHOLZ  et  al.  v.  McGAHBY  et  al. 
(No.  16,126.) 

(Supreme  Q>nrt  of  Nebraska.    Oct  9,  1909.) 

1.  Appeal  and  Erbor  (J  621*)— Jurisdiction 
— FitiNO  Transcbipt. 

To  clothe  this  court  with  Jurisdiction  to 
review  a  judgment  or  a  final  order  of  the  district 
court,  the  appellant  must  within  six  months  of 
the  rendition  of  such  Judgment  or  final  order 


file  with  the  clerk  of  this  court  a  certified  tran- 
script of  the  judgment  or  order  appealed  from. 
[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  If  2724-2731;  Dec.  Dig.  i 
621.*] 

2.  Appeal  and  Ebkok  (I  643*)— Transcript- 
Certificate;— Authentication. 

If  the  transcript  filed  for  the  purpose  of 
such  on  ap^al  is  not  authenticated  by  the  clerk 
of  the  district  court  this  court  is  without  pow- 
er, after  six  months  from  the  rendition  of  such 
Judgment  or  final  order,  to  permit  the  appellant 
to  add  the  clerk's  certificate  to  said  transcript. 
[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error.  C!ent  Dig.  {§  2791-2794;    Dec  Dig.  { 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court  Platte  Coun- 
ty;  Hollenbeck,  Judge. 

Action  by  Fredrick  Fromholz  and  others 
against  Gertrude  McGahey  and  others.  Judg- 
ment for  defendants,  and  plaintiffs  appeal. 
Dismissed. 

A.  M.  Post  M.  Whitmoyer,  and  L.  S.  Hast- 
ings, for  appellants.  W.  E.  Atkinson  and 
G.  W.  De  Lamatre,  for  appellees. 

ROOT,  J.  The  affidavits  and  other  docu- 
ments on  file  in  this  case  indicate  that  a 
Judgment  adverse  to  plaintiffs  was  rendered 
in  the  district  court  of  Platte  county  In  No- 
vember, 1908.  In  March,  1909,  an  unanthen- 
ticated  transcript  of  the  pleadings  In  the 
case  and  of  the  Judgment  appealed  from 
was  filed  in  the  office  of  the  clerk  of  this 
court  April  1st  defendants  by  their  attor- 
neys filed  their  voluntary  appearance  herein, 
reserving,  however,  the  right  to  object  to 
the  jurisdiction  of  this  court.  AiK>nt  August 
10th,  and  shortly  after  plalntifTs  had  served 
a  copy  of  their  brief  on  defendants'  counsel, 
the  defendants  requested  us  to  dismiss  plain- 
tiffs' appeal.  September  16th  plaintiffs  ask- 
ed leave  to  withdraw  said  transcript  so  that 
It  might  be  certified  by  the  clerk  of  the  dis- 
trict court  The  affidavits  establish  that 
defendants  did  not  know  until  subsequent 
to  the  service  of  plaintiffs'  briefs  that  the 
transcript  had  not  been  attested  by  the 
clerk.  We  do  not  have  original  Jurisdiction 
of  the  Issues  litigated  in  the  district  court. 
The  Legislature  In  the  exercise  of  Its  con- 
stitutional power  has  provided  the  condi- 
tions upon  which  cases  like  the  one  at  bar 
may  be  reviewed  b*y  us.  Section  075  of  the 
Code  controls,  and  is  as  follows:  "The  pro- 
ceedings to  obtain  a  reversal,  vacation,  or 
modification  of  judgments  and  decrees  ren- 
dered or  final  orders  made  by  the  district 
court,  except  judgments  and  sentences  up- 
on convictions  for  felonies  and  misdemean- 
ors under  the  Criminal  Code  of  this  state, 
shall  be  by-  filing  In  the  Supreme  Court  a 
transcript  certified  by  the  clerk  of  the  dis- 
trict court,  containing  the  Judgment,  decree 
or  final  order  sought  to  be  reversed,  vacated 
or  modified,  within  six  months  from  the  ren- 
dition of  sncb  judgment  or  decree  or  the 

•For  other  mmi  bm  same  topte  sad  ■•ctlaa  NI7UBSR  la  Deo.  *  Am.  Digi.  1907  to  dato,  *  Reporter  Indozm 


Digitized  by  VjOOQ  l€ 


880 


122  MORTHWESTBRN  BBPOBTBB. 


(NdK 


making  of  such  final  order  or  within  six 
months  from  the  OTermllng  of  a  motion 
for  a  new  trial  in  said  case;  the  filing  of 
such  transcript  shall  confer  Jurisdiction  In 
such  cause  upon  the  Supreme  Court."  We 
have  uniformly  held  that  filing  an  anau- 
thentlcated  transcript  of  a  judgment  of  the. 
district  court  did  not  give  us  Jurisdiction 
of  the  controversy,  but  that  the  terms  of  the 
statute  must  he  observed  and  a  certified 
transcript  of  the  Judgment  filed  within  the 
time  limited  by  law.  The  authorities  upon 
this  point  were  reviewed  In  Moore  v.  Water- 
man, 40  Neb.  498,  58  N.  W.  940,  and  again 
in  Snyder  v.  Lapp,  59  Neb.  243,  80  N.  W. 
806.  See,  also,  Smith  v.  Delane,  74  Neb. 
594,  104  N.  W.  1054.  Plaintiffs,  however, 
argue  that  In  none  of  the  cases  referred  to 
was  a  request  made  for  x>ermlsslon  to  amend 
the  transcript,  and  that  section  144  of  the 
Code  commands  the  courts  to  permit  amend- 
ments In  the  Interest  of  Justice  to  be  made 
«lther  before  or  after  Judgment,  and  that  the 
defect  in  the  instant  case  does  not  go  to  the 
substance  but  the  form  of  the  statutory  con- 
ditlonr. 

Four  decisions  of  this  court  and  the  case 
of  Banlc  v.  Moderwell,  59  Ohio  St.  221,  52 
N.  B.  194,  are  cited  in  support  of  plaintiffs' 
argument  In  Rudolf  v.  McDonald,  6  Neb. 
163,  an  affidavit  without  a  venue  had  been 
filed  to  obtain  an  attachment,  and  was  at- 
tacl^ed  after  Judgment  in  the  main  case. 
It  was  held  that  the  objection  came  too 
late.  In  Omaha  Coal  &  Coke  Company  v. 
Fay,  37. Neb.  68,  55  N.  W.  211,  a  transcript 
from  an  inferior  court  had  not  been  filed 
In  the  district  court  within  the  time  fixed 
by  statute,  but  the  parties  had  Joined  Issues 
and  tried  the  case  in  the  district  court 
That  court  had  original  Jurisdiction  to  try 
the  cases,  and,  as  the  parties  did  not  ob- 
ject until  after  trial,  it  was  Immaterial 
whether  the  Issues  were  presented  on  ap- 
peal, or  in  the  first  instance  to  said  court. 
In  either  event,  after  a  trial,  the  defeated 
litigant  could  not  question  the  power  of  the 
court  to  enter  judgment.  The  same  facts 
existed  In  Coleman  v.  Spearman,  68  Neb.  28, 
93  N.  W.  983.  In  Moss  v.  Robertson,  56 
Neb.  774,  77  N.  W.  403,  the  plaintiff  in  error 
had  within  the  time  fixed  by  statute  filed 
a  duly  authenticated  tfanscript  containing 
a  copy  of  the  Judgment  and  part  of  the 
pleadings.  More  than  one  year  after  the 
judgment,  and  before  the  case  was  submit- 
ted in  this  court  on  its  merits,  we  permitted 
the  plaintiff  to  amend  the  transcript.  In 
the  instant  case,  if  the  plaintiffs  had  only 
filed  a  certified  transcript  of  the  judgment 
sought  to  be  reviewed,  we  would  have  au- 
thority, under  the  present  statute,  to  per- 
mit an  amendment  by  adding  copies  of  the 
pleadings  or  of  any  part  of  the  proceedings 
other  than  the  judgment,  but  the  essential 
and  jurisdictional  certificate  is  missing. 


In  addition  to  the  cases  cited,  we  held  la 
Whitcomb  V.  Chase,  83  Neb.  860,  119  N.  W. 
673,  that  an  objection  first  made  on  appeal 
to  this  court  that  a  transcript  from  a  coun- 
ty court  to  the  district  court  had  not  been 
certified  came  too  late  for  consideration.  In 
Bank  v.  Moderwell,  supra,  a  transcript  of  the 
pleadings  and  proceedings  had  been  filed, 
but  the  pleadings  only  were  authenticated, 
and  permission  was  given  to  correct  the 
certificate.  In  that  case  Mr.  Justice  Brad- 
bury suggests  that,  if  there  had  been  noth- 
ing upon  which  the  amendment  could  rest, 
none  could  be  made,  but  the  certificate  ex- 
isted, although  defective  in  form  and  the 
amendment  was  proper.  It  may  be  pertinent 
to  suggest  that  the  Ohio  statute  does  not 
provide  in  so  many  words  that  a  transcript 
on  appeal  shall  be  certified,  and  Judge  Brad- 
bury suggests  that  probably  the  filing  of  an 
nnauthentlcated  transcript  would  give  the 
Supreme  Court  Jurisdiction.  In  the  Instant 
case  the  derk  has  not  signed  nor  attached 
his  seal  to  the  transcript,  and  therefore 
there  is  nothing  in  the  way  of  a  certificate 
to  be  amended. 

We  have  examined  the  other  cases  cited 
by  counsel,  but  do  not  consider  that  they 
are  in  point  and  will  not  extend  this  opin- 
ion by  further  reference  to  them.  A  due 
regard  for  the  Code  and  the  former  decisions 
of  this  court  Impels  us  to  overrule  plain- 
tiffs' and  sustain  defendants'  motion,  and  It 
is  so  ordered. 


DUVAL  et  al.  v,  ADVANCE  THRESHER 

CO,    (No.  15,464.) 
(Supreme  Court  of  Nebraska.     Oct  9,  1909.) 

Pleading  (|  177*) — Reply— Admissions. 

Under  the  rule  that  pleadings  will  he  con- 
strued most  strongly  against  tlie  pleader,  the 
pleadings  in  this  case  examined,  and  the  actioa 
held  to  t>e  upon  a  contract  for  commissions. 
Held,  further,  that  as  to  installments  of  com- 
mission not  due  no  recovery  can  l>e  had  at  this 
time. 

[Ed.  Note.— For  other  cases,  see  Pleading, 
Cent  Dig.  §  354 ;    Dec.  Dig.  i  177.*] 

(Syllabus  by  the  Cionrt) 

On  rehearing.  Former  Judgment  (119  N. 
W.  957)  modified,  upon  condition  that  plain- 
tiffs file  a  remittitur;  otherwise  judgment 
of  the  district  court  reversed  and  cause  re- 
manded. 

LETTON,  J.  The  only  question  In  the 
case  is  whether  the  judgment  is  supported 
by  the  pleadings;  no  bill  of  exceptions  having 
been  preserved.  The  action  is  to  recover  com- 
missions alleged  to  be  due  upon  an  agency 
contract  for  the  sale  of  certain  machinery. 
The  petition  alleges  the  contract  of  agency, 
the  sale  of  goods  by  the  plaintiffs  for  tlie 
defendants  thereunder,  payment  for  the  goods 
by  the  purchaser  and  the  refusal  of  defend- 


•For  otlier  cms*  aee  tame  topic  and  section  NUHBSR  In  Dec.  &  Am.  Digs.  1M7  to  iaita,  *  Raportcr  ladaxM 


Digitized  by  VjOOQ  l€ 


Neb.) 


m  BE  O'SHBA'S  ESTATE. 


881 


ants  to  pay  the  commissions  dae,  and  declares 
tbat  there  Is  now  due  the  sum  of  $504.06. 
The  amended  answer  upon  which  the  case 
was  tried  admits  the  employment  of  the 
plaintiffs,  under  a  written  contract  of  agency 
which  Is  set  forth;  pleads  that  under  the 
contract  commissions  were  only  payable  when 
the  goods  were  fully  paid  for;  denies  that 
plaintiffs  made  the  sale;  pleads  that  the 
sale  was  made  in  disregard  of  certain  pro- 
visions in  the  contract;  alleges  that  the  notes 
taken  for  the  goods  have  not  been  paid ;  and 
denies  that  the  defendant  Is  indebted  t»  the 
plaintiffs  Id  any  sum  whatever.  The  allega- 
tions of  the  answer,  denying  that  plaintiffs 
made  the  sale,  and  alleging  that  the  com- 
mission is  not  due  because  the  notes  taken 
for  the  sale  have  not  been  paid,  are  incon- 
sistent and  contradictory.  Under  the  rule 
that  pleadings  should  be  construed  most 
strongly  against  the  pleader,  this  answer 
amounts  to  an  admission  of  the  agency,  the 
sale  of  the  goods  by  the  plaintiffs  at  less  than 
the  contract  price,  and  a  plea  that  the  action 
Is  prematurely  brought,  for  the  reason  that 
the  notes  taken  for  the  goods  have  not  been 
paid.  The  reply  alleges  that  under  the  con- 
tract it  was  agreed  that  nonnegotlable  com- 
mission certificates  were  to  be  issued  by  the 
defendant  and  delivered  to  the  plaintiffs,  rep- 
resenting commissions  upon  each  installment 
of  purchase  money,  payable  upon  payment 
of  the  Installment,  and  that  defendants  re- 
fused to  carry  out  this  agreement  for  the  al- 
leged reason  that  plaintiffs  had  not  assisted 
In  the  sale.  The  reply  further  alleges  that 
"all  notes  now  due  on  said  sale  have  been 
collected  and  paid,  and  there  has  been  'paid 
three  installments  of  the  simi  of  $830.50, 
more  than  one-third  of  the  total."  Upon  the 
former  hearing  the  pleadings  were  examined, 
and  the  action  held  to  be  upon  the  contract, 
and  since  the  recovery  was  in  excess  of  the 
amount  shown  to  be  due  by  the  pleadings, 
the  judgment  was  reversed.  At  the  present 
hearing  it  is  strongly  contended  by  the  plain- 
tiffs that  the  allegations  in  the  reply  with 
Deference  to  the  refusal  of  the  defendant  to 
Issue  commission  certificates  for  each  install- 
ment to  fall  due  pleaded  a  breach  of  the  en- 
tire contract  for  which  plaintiffs  were  en- 
titled to  recover  damages,  and  therefore  sup- 
ported the  Judgment 

It  is  probable  that  In  a  proper  action  the 
whole  amount  of  damages  recoverable  for  a 
breach  of  the  contract  might  be  recovered 
without  waiting  for  each  installment  of  com- 
mission to  become  due,  since  the  plaintiffs, 
having  executed  the  contract  on  their  part, 
would  be  entitled  to  recover  whatever  dam- 
ages might  accrue  from  the  defendant's  fail- 
ure to  perform.  In  such  case  the  measure  of 
damages  would  be  the  actual  value  of  the 
commission  certificates.  This  is  as  far  as  the 
cases  cited  by  plaintiffs  go.  However,  It  is 
unnecessary  to  decide  this  point  for  the  rea- 


son that,  according  to  the  rule  which  we 
have  Just  applied  against  the  defendant  with 
reference  to  the  answer,  the  inconsistent  al- 
legations of  the  reply  must  also  be  construed 
most  strongly  against  the  pleader,  and  thus 
construed,  and  in  accordance  with  the  Issue 
made  by  the  petition  and  answer,  the  reply 
is  an  admission  that  the  defendant's  liability 
is  on  the  .contract,  and  not  for  a  breach  of  it, 
and  an  allegation  that  only  $830.60  has  been 
paid  upon  the  sale. 

In  the  former  opinion  no  mention  was 
made  of  the  averments  of  the  reply  with  ref- 
erence to  the  refusal  to  deliver  commission 
certificates,  yet,  in  the  view  we  take  of  the 
pleadings,  this  allegation  was  properly  dis- 
regarded, and  the  holding  that  the  whole 
amount  was  not  recoverable  at  the  time  the 
action  was  brought  is  the  only  one  which  is 
permissible  as  the  pleadings  stand.  We 
think,  however,  that  the  plaintiffs  were  en- 
titled to  recover,  and  the  pleadings  will  sup- 
port a  Judgment  for  the  amount  then  due, 
being  the  agreed  commission  upon  $830.50, 
which  is  $116.10,  with  interest  from  the  time 
of  the  beginning  of  the  action,  amounting  in 
all  to  $170.46. 

The  former  Judgment  is  therefore  modified 
so  that  it  will  be  aflSrmed  without  prejudice 
to  future  actions  for  the  commission  install- 
ments when  they  become  due,  upon  the  con- 
dition that  the  plaintiffs  within  80  days  file 
a  remittitur  of  $846.80,  with  interest  from 
the  date  of  the  Judgment,  with  the  clerk  of 
this  court;  othervrise  the  judgment  of  the 
district  court  U  reversed  and  the  cause  re- 
manded for  farther  proceedinga 


In  re  0'SHE2A'S  ESTATE. 

O'SHEA  V.  BREUNIG  et  aL     (No.  15,670.) 

(Sapreme  Conrt  of  Nebraska.     Oct  0,  1900.) 

ExKotrroBS  and  Administbatobs  (i  186*)— 
WHXS  (i  784*)— AU.0WAKCX8  lo  Sotviv- 
ING  Husband  ob  Wife. 

Dnder  the  provisions  of  section  176,  c.  23, 
Comp.  St  1907  (section  4903,  Cobbey's  Ann.  St 
1907).  "all  the  wearing  apparel  and  ornaments 
and  household  fnmiture"^  and  other  i)ersonal 
property,  not  exceeding  $200  in  value,  of  a  de- 
ceased wife  or  husband  vests  in  the  survivor 
as  well  when  such  survivor  receives  provision 
made  in  the  will  of  the  deceased  as  when  the 
deceased  died  intestate  and  the  survivor  cannot 
be  deprived  of  the  allowance  thereof  by  the  will 
of  the  deceased,  nor  can  the  survivor  be  required 
to  elect  whether  he  or  she  will  accept  other 
provisions  of  the  will  in  his  or  her  behalf  be- 
rore  demanding  the  property  described  in  the 
above  section. 

[Ed.  Note. — For  other  cases,  see  Eseentors 
and  Administrators,  Dec  Dig.  I  186:*  Wills, 
Dec.  Dig.  {  784.*] 

Fawcett  J>,  dissenting. 
(Syllabus  by  the  Conrt) 

Appeal  from  District  (Tourt,  Platte  C!oun- 
ty;  Thomas,  Judge. 
John  J.  O'Shea,  surviving  husband  of  Llz- 


•For  otlMr  cues  lee  urn*  toplo  and  lecUon  NXniBBS  la  D«e.  *  Am.  Slgi.  UOT  to  dats^  *  Rcportsr  InlszM 
122  N.W.— 66 


Digitized  by  VjOOQ  l€ 


882 


122  NORTHWESTBRN  BBPORXBR. 


(Neb. 


zle  O'Shea,  filed  an  Inventory  and  appraise- 
ment of  all  wearing  apparel  and  omamenta 
and  bousebold  furniture  and  other  personalty 
left  by  decedent  which  he  claimed  was  allow- 
ed to  him  by  law  as  anrrlTlng  husband,  and 
the  sum  of  $200  In  money,  and,  as  the  coun- 
ty court  was  to  assign  the  same  to  him,  the 
county  court  rejected  the  claim,  and  O'Shea 
appealed  to  the  district  court,  where  the 
county  court  was  reversed  and  the  allowance 
made,  and  Henry  J.  Breunlg  and  other  lega- 
tees appeal.    Affirmed. 

Albert  &  Wagner  and  P.  B.  McKllUp,  for 
appellants.  John  J.  SuUlvan,  James  G.  Reed- 
er,  and  liOuls  Ughtner,  for  appellee. 

RBESB,  C.  J.  The  appellee,  O'Shea,  Is  the 
surviving  husband  of  Lizzie  O'Shea,  who  died 
testate.  He  was  her  second  husband;  she 
having  been  previously  married  to  C.  D.  Mur- 
phy, deceased.  She  had  one  son,  Cyril  Bu- 
gene  Murphy,  by  her  first  husband.  There 
was  no  Issue  of  the  second  marriage.  While 
there  is  nothing  in  the  record  disclosing  the 
extent  of  her  estate,  the  will,  a  copy  of  which 
Is  In  the  record,  would  seem  to  indicate  that 
she  died  possessed  of  considerable  of  an  es- 
tate in  her  own  right  She  devised  to  her 
husband  200  acres  of  land  in  Boone  county, 
and  the  undivided  three-fourths  of  two  quar- 
ter sections  of  land  In  Platte  county  in  fee. 
She  also  bequeathed  to  him  certain  specified 
articles  of  personal  property  consisting  of  a 
part  of  her  household  goods  and  wearing  ap- 
parel. Her  piano  and  folding  bed  she  gave  to 
the  Franciscan  Sisters  of  Charity  of  Hum- 
phrey, Neb.  To  the  sisters  of  her  former  hus- 
band, Maggie  and  Nora  Murphy,  she  bequeath- 
ed a  diamond  ring  given  her  by  him.  To  her 
sister  Maggie  Anslme  she  gave  a  specified  ring, 
and  to  her  niece,  Isabel  Breunlg,  another  ring. 
To  her  son  Cyiil  Eugene  Murphy  she  left  a 
portrait  of  his  father,  C.  D.  Murphy,  a  crayon 
portrait  of  his  aunt,  Nellie  Murphy,  and  a 
specified  oil  painting.  The  ninth  paragraph  of 
the  will  provided:  "All  the  rest  of  my  house- 
bold  furniture,  furnishings,  carpets,  china- 
ware,  silverware,  cutglass  and  paintings,  I 
give  and  bequeath  to  my  brothers  and  sisters 
(named  in  another  paragraph  of  the  will)  to 
be  divided  equally  amongst  them,"  each  to 
select  the  articles  desired,  but.  If  they  were 
unable  to  agree  as  to  the  division,  the  ex- 
ecutors were  directed  to  divide  the  property 
into  seven  parcels  of  practically  the  same 
value,  and  lots  should  be  cast  for  the  same, 
respectively.  All  the  residue  of  her  estate, 
real  and  personal,  was  devised  and  bequeath- 
ed to  her  son,  Cyril  Eugene  Murphy.  The 
husband  was  appointed  as  the  guardian  of 
Cyril,  and  was  also  nominated  as  an  execu- 
tor of  the  will  with  Henry  Breunlg.  The  will 
was  admitted  to  probate  In  Platte  county. 
The  executors  qualified  and  entered  upon  the 
duties  of  their  appointment.  O'Shea  accepted 
the  provisions  of  the  will  in  his  behalf.  He 
then  filed  a  complete  inventory  and  appraise- 
ment "of  all  the  wearing  apparel  and  orna- 


ments and  household  furniture  and  other  per- 
sonal property  left  by  the  deceased"  which 
he  claimed  was  allowed  to  him  by  law  as 
the  surviving  husband,  and  the  sum  of  $200 
in  money,  amounting  to  a  total  of  $1,996.50. 
and  asked  the  county  court  to  assign  the 
same  to  him  under  the  provisions  of  section 
4903,  Cobbey's  Ann.  St  1907,  f  176,  c.  23, 
Comp.  St  1907.  This  Induded  all  the  prop- 
erty specifically  bequeathed  to  others.  The 
county  court  rejected  the  claim,  and  O'Shea 
appealed  to  the  district  court  where  the  de- 
cislofi  of  the  county  court  was  reversed  and 
the  allowance  made  as  claimed.  The  legatees 
appeal. 

The  law  under  which  this  claim  Is  made 
is  found  in  the  first  clause  of  the  section  re- 
ferred to,  which  is  as  follows:  "When  any 
person  shall  die  possessed  of  any  personal  es- 
tate or  of  any  right  or  interest  therein,  not 
lawfully  disposed  of  by  his  last  will,  the  same 
shall  be  applied  and  distributed  as  follows: 
First  the  surviving  husband  or  wife,  If  any, 
and,  If  there  be  no  surviving  husband  or 
wife,  then  the  child  or  children,  if  any,  of 
the  deceased  shall  be  allowed  all  the  wear- 
ing apparel  and  ornaments  and  household 
furniture  of  the  deceased,  and  all  the  proper- 
ty and  articles  that  was  or  were  exempt  to 
the  deceased  at  the  time  of  his  or  her  death, 
from  levy  or  sale  upon  execution  or  attach- 
ment and  other  personal  property,  to  be  se- 
lected by  her,  him  or  them,  not  exceeding 
two  hundred  (200)  dollars  In  value,  and  this 
allowance  shall  be  made  to  such  surviving 
husband  or  wife  or  child  or  children,  if  any, 
as  well  when  he  or  she  or  they  shall  receive 
provision  made  in  the  will  of  the  deceased  as 
when  the  deceased  dies  intestate."  O'Shea 
accepted  the  provisions  of  the  wUl  by  which 
the  land  and  specific  personal  property  was 
given  him,  and  it  is  claimed  by  the  legatees 
that  those  provisions  placed  It  within  his 
election  to  take  under  the  law  or  under  the 
will,  and  that  having  taken  under  the  will, 
he  could  not  demand  all  the  personal  prop- 
erty specified  in  the  Inventory  submitted  in 
addition;  that  it  was  clearly  In  contemplation 
of  the  testatrix  that  he  should  not  have  both, 
as  the  personal  property — all  of  it — was  spe- 
cifically bequeathed  to  the  legatees;  and  that 
having  elected,  he  is  bound  by  his  election, 
and  must  abide  by  It  This  contention  Is  not 
disputed  by  appellee  as  a  general  proposition 
of  law  uninfinenced  by  legislative  action, 
but  it  Is  insisted  that  the  closing  portion  of 
the  clause  above  quoted  changes  the  rule, 
and,  In  effect,'  deprives  a  testator  of  the  right 
or  power  to  dispose  of  the  property  by  will 
otherwise  than  as  the  law  provides ;  that  the 
provision  that  the  allowance  shall  be  made 
"as  well  when  he  •  •  •  shall  receive  pro- 
vision made  in  the  will  of  the  deceased  as 
when  the  deceased  dies  Intestate"  precludes 
all  idea  of  election,  and  confers  title  as  a  le- 
gal right  notwithstanding  the  other  provi- 
sions of  the  will  in  his  behalf. 

There  can  be  no  doubt  but  that  It  was 


Digitized  by  VjOOQ  l€ 


Nelfc) 


IN  BE  O'SHBA'S  ESTATE. 


883 


ttie  Intention  of  the  testatrix  that  the  proyl- 
■Ion  made  for  her  husband  in  the  will  was 
all  that  he  should  have  of  the  estate.  This 
18  made  doubly  certain,  if  possible,  by  the 
apedflc  bequests  to  her  son,  her  sister,  and 
relatives  of  the  former  husband  of  the  enu- 
merated articles.  The  only  question,  there- 
fore, is  as  to  her  power  to  so  dispose  of  her 
property.  As  we  read  the  will,  and  observe 
that  It  confers  upon  the  sisters  of  the  de- 
ceased husband  the  ring  given  the  testatrix 
by  him,  and  to  the  son  the  portrait  of  his 
deceased  father,  the  mind  and  conscience  re- 
volts and  turns  away  from  allowing  the  ef- 
fort of  appellee  to  thus  ignore  the  expressed 
wUl  of  his  deceased  wife  from  whom  he 
received  such  liberal  provision.  The  will 
was,  no  doubt,  made  in  the  firm  belief  in 
the  Integrity  of  the  husband  and  that  he 
would  respect  her  last  wishes,  and  either 
decline  to  accept  the  provisions  made  for 
him  and  take  what  the  law  gave  him,  or  ac- 
cept those  provisions  as  made.  However, 
this  seems  to  be  one  of  the  cases  where 
the  provision  of  the  statute  may  be  made  to 
work  a  hardship  and  injustice,  for  there  ap- 
pears to  be  no  escape  from  the  language  of 
the  statute.  Many  cases  are  cited  by  appel- 
lants holding  that  where  one  entitled  to  a 
benefit  under  a  will  must,  if  he  claims  such 
benefit,  abandon  every  right  the  assertion 
whereof  would  defeat,  even  partially,  any 
of  the  provisions  of  the  instrument,  and  that 
it  is  a  maxim  not  to  permit  the  same  person 
to  hold  under  and  against  a  will,  and  those 
rules  are  recognized  and  enforced  in  Qod- 
man  v.  Converse,  43  Neb.  483,  61  N.  W.  756, 
but  In  no  case  do  we  find  the  decision  made 
in  the  face  of  a  statute  similar  to  the  one 
under  consideration.  Our  attention  is  call- 
ed to  section  4907,  Cobbey's  Ann.  St  1907, 
but  we  see  nothing  in  that  section  that 
would  or  could  modify  the  clause  In  section 
4903,  above  quoted.  That  section  simply 
provides  for  election,  we  think,  where  the 
testator  has  the  power  to  dispose  of  the 
property,  and  the  section  must  be.  read  In 
connection  with  section  4903  and  the  two 
construed  together.  By  so  doing  the  prop- 
erty to  be  allowed  the  survivor  Is  excluded 
from  section  4907.  Taking  section  4903  as 
It  reads,  and  we  cannot  take  It  otherwise, 
it  seems  to  have  been  the  purpose  of  the 
Legislature  to  deprive  a  testator  of  the  right 
or  power  to  dismantle  the  home  or  any  part 
thereof  without  the  consent  of  the  survivor. 
The  case  of  Brlchacek  v.  Brlchacek,  75  Neb. 
417,  106  N.  W.  473,  while  not  decided  with 
reference  to  the  sections  under  considera- 
tion, might  shed  some  light  upon  the  views 
of  the  court  upon  a  similar  contention.  In 
that  case  the  wife  was  the  owner  of  two  80- 
acre  tracts  of  land,  one  of  which  was  the 
family  homestead.  By  her  will  she  devised 
the  homestead  to  her  children  and  the  other 
tract  of  land  to  her  husband.  He  accepted 
the  provIsloDa  of  the  will,  and  claimed  his 


homestead  right  of  a  life  estate  in  the  home 
and  the  fee  title  to  the  other  tract  We  held 
that  he  was  entitled  to  both,  as  the  law 
gave  him  his  homestead  right  of  which  he 
could  not  be  divested  except  by  his  own  act 
and  that  there  was  no  requirement  that  he 
should  elect,  and  that  his  acceptance  was 
not  an  election.  The  principle  involved  in 
the  two  cases  is  practically  the  same. 

It  follows  that  the  judgment  of  the  dis- 
trict court  will  have  to  be  affirmed,  which 
is  done. 

Affirmed. 

ROOT,  J.  (concnrrlng).  I  concur  in  affirm- 
ing the  judgment  of  the  lower  court  for  the 
reasons  hereafter  stated.  O'Shea  was  claim- 
ing property  that  descended  absolutely  to 
him  upon  the  death  of  his  wife,  notwith- 
standing her  will.  Section  4903,  Cobbey's 
Ann.  St  1907.  Section  5065,  Cobbey's  Ann. 
St  1907,  directs  executors  as  well  as  ad- 
ministrators to  make  a  separate  and  distinct 
Inventory  and  appraisement  of  the  household 
furniture  and  other  personal  property,  which 
may  be  allowed  the  widow,  pursuant  to  the 
provisions  of  the  chapter  on  decedents,  and 
provides  that  such  chattels  shall  not  be  con- 
sidered assets  In  the  hands  of  those  officers 
of  the  court.  Preceding  1901,  the  surviv- 
ing wife  and  not  the  husband  was  given  the 
wearing  apparel,  ornaments,  household  furni- 
ture, etc.,  of  the  deceased  spouse.  In  1901 
the  surviving  husband  and  wife  were  placed 
on  an  equality  with  respect  to  said  proper- 
ty (chapter  27,  p.  334,  Laws  1901),  and  the 
Legislature  in  1907  (chapter  49,  p.  193,  Laws 
1907)  continued  that  policy.  Section  50C.'i. 
Cobbey's  Ann.  St,  Is  Identical  with  scctiou 
200,  c.  14,  p.  98,  Rev.  St.  1866,  and  has  never 
been  amended.  The  fact  that  the  Legisla- 
ture has  not  amended  the  last  cited  statute 
so  as  to  specifically  mention  the  surviving 
husband  as  well  as  the  wife  does  not  make 
it  inapplicable  to  the  husband's  case.  O'Shea. 
therefore,  did  not  depend  upon  the  will  for 
title  to  the  property  in  dispute.  In  re  Fletch- 
er's Estate,  83  Neb.  156,  119  N.  W.  232. 
The  cited  case  was  decided  with  reference 
to  the  statute  in  force  prior  to  the  amend- 
ment of  1907,  supra,  but  it  is  somewhat  in 
point 

Counsel  for  appellants  argue  with  com- 
mendable learning  the  doctrine  of  election, 
but  that  principle  does  not  apply  to  the  rec- 
ord In  this  case.  O'Shea  filed  his  separate 
Inventory  enumerating  the  articles  and  the 
|200  claimed  by  him  under  section  4903. 
Cobbey's  St.,  supra.  Appellants  objected  to 
the  surviving  spouse  receiving  that  property 
because  it  bad  been  bequeathed  to  other 
legatees  by  his  deceased  wife,  and  claimed 
that  as  O'Shea  had  accepted  the  land  de- 
vised to  him  by  that  instrument  he  had 
elected  to  take  thereunder,  and  must  re- 
nounce all  claim  to  the  chattels.  O'Shea 
stands  in  the  same  light  aa  though  be  Iiad 


Digitized  by  VjOOQ  IC 


884 


122  NORTHWESTERN  REPORTEB. 


(Neh. 


owned  the  dlspnted  chattels  at  the  time  of 
his  wife's  death.  In  that  event,  as  In  the 
Instant  case,  by  asserting  title  to  the  chat- 
tels under  the  law,  he  would  be  claiming 
against,  not  nnder,  the  will.  In  cases  like 
the  one  at  bar  the  doctrine  of  election  Is 
actually  that  of  compensation.  Sections  467, 
468,  469,  Pomeroy's  Equity  Jurisprudence  ; 
sections  1085,  1086,  Story's  Equity  Juris- 
prudence; Rogers  t.  Jones,  3  Ch.  DIt.  688; 
BIgland  y.  Huddleston,  In  note  to  Freke  t. 
Barrlngton,  8  Bro.  O.  C.  237;  Carper  v. 
Growl,  149  IlL  465,  36  N.  E.  1040;  Williams 
V.  Williams,  5  Gray  (Mass.)  24.  Judge  Story, 
In  section  1079  of  his  work  on  Equity  Juris- 
prudence and  In  his  note  on  page  426,  toI. 
2  (13th  £d.),  supra,  refers  to  the  principles 
of  the  civil  law  which  do  not  permit  the 
beneficiary  In  a  will  to  receive  any  advan- 
tage therefrom  If  he  takes  against  it  Mr. 
Swanston  In  his  note  to  Qretton  v.  Howard, 
1  Swan.  Ch.  (Bng.)  444,  comments  upon  the 
difficulties  that  may  arise  In  cases  of  election 
where  a  bequeathed  chattel  may  possess  a  val- 
ue peculiar  to  the  individual  because  of  asso- 
ciations, but  concludes  that,  unless  the  diffi- 
culty Is  unsurmonntable,  the  doctrine  of  com- 
I>en8atlon  will  apply. 

To  the  writer  It  seems  that  O'Shea  In  as- 
serting his  legal  rights  to  the  enumerated 
property  and  the  $200,  has  irrevocably  elect- 
ed to  take  against  the  will,  and  to  hold  the 
land  devised  to  him,  In  trust,  as  far  as  may 
be  necessary  to  compensate  the  other  lega- 
tees for  their  disappointment  In  not  receiv- 
ing said  chattels  and  money.  It  goes  with- 
out saying  that  a  county  court  is  without 
Jurisdiction  to  declare  and  make  that  trust 
effective  with  relation  to  real  estate.  There 
Is  nothing  upon  which  the  decree  of  the 
county  court  can  operate  to  satisfy  the  ap- 
pellants, unless  it  has  the  power  to  divert 
the  husband's  title  to  the  chattels  and  vest 
it  in  the  complaining  legatees.  I  agree  with 
the  CHIEF  JUSTICE  that  the  policy  of  this 
state  as  evidenced  by  the  will  of  the  tiegr 
isiature  forbids  that  assumption  of  authority. 

The  decree  of  the  district  court  reversing 
that  of  the  county  court  and  directing  the 
delivery  to  O'Shea  of  the  disputed  Chattels 
should  be  affirmed,  but  without  prejudice  to 
any  proper  action  by  appellants  for  com- 
pensation. 

LETTON,  J.,  concurs  in  these  views. 

FAWCETT,  J.  (dissenting).  The  statute 
nnder  which  O'Shea  claims  the  right  to  hold 
the  picture  of  his  deceased  wife's  former  hus- 
band, and  the  wedding  ring  which  her  for- 
mer husband  gave  her,  and  other  ornaments 
bequeathed  by  her  to  her  personal  relatives. 
Is  section  4903,  Cobbey's  Ann.  St  It  reads 
as  follows:  "When  any  person  shall  die 
possessed  of  any  personal  estate  or  of  any 
right  or  Interest  therein,  not  lawfully  dis- 
posed of  by  his  last  will,  the  same  shall  be 
.applied  and  distributed  as  follows:    First, 


the  surviTlng  husband  or  wife,  If  any,  and 
if  there  be  no  surviving  husband  or  wlfe^ 
then  the  child  or  children,  if  any,  of  the  de- 
ceased shall  be  allowed  all  the  wearing  ai>- 
parel  and  ornaments  and  household  fnini- 
ture  of  the  deceased,  and  aU  the  property 
and  articles  that  was  or  were  exempt  to  the 
deceased  at  the  time  of  his  or  her  death, 
from  levy  or  sale  upon  execution  or  attach- 
ment snd  other  personal  property,  to  be 
selected  by  her,  him  or  them,  not  exceeding 
two  hundred  (200)  dollars  in  value,  and  this 
allowance  shall  be  made  to  such  surviving 
husband  or  wife  or  child  or  children,  if  any, 
as  well  when  he  or  she  or  they  shall  re- 
ceive provision  made  in  the  will  of  the  de- 
ceased as  when  the  deceased  dies  Intestate." 
A  careful  study  of  the  above  provisions  of 
the  statute  satisfies  me  that  the  Legislature 
intended  to  recognize  the  right  of  any  per- 
son to  dispose  of  all  of  his  personal  prop- 
erty by  will,  but  that  in  the  event  of  his 
falling  so  to  do,  the  surviving  husband  or 
wife  should  be  permitted  to  take  and  hold,  as 
agalflst  the  heirs  at  law,  "all  the  wearing 
apparel  and  ornaments  and  household  fur- 
niture of  the  deceased,  and  all  the  property 
and  articles  that  was  or  were  exempt  to 
the  deceased  at  the  time  of  his  or  her  death, 
from  levy  or  sale  upon  execution  or  attach- 
ment" Down  to  that  point  in  the  section 
of  the  statute  quoted  I  am  satisfied  that 
the  Legislature  Intended  the  articles  of  per- 
sonal property  thus  enumerated  to  go  to  the 
surviving  husband  or  wife  only  when  the 
same  had  not  been  disposed  of  by  will.  Then, 
realizing  that  upon  the  death  of  the  party 
the  surviving  husband  or  wife  might  be  left 
without  Immediate  means  of  support  it  fur- 
ther provided,  "And  other  personal  property 
to  be  selected  by  her,  him  or  them,  not  ex- 
ceeding Two  Hundred  Dollars  in  value."  By 
"other  personal  property"  it  Is  clear  that 
the  Legislature  meant  personal  property  oth- 
er than  wearing  apparel,  ornaments,  and 
other  articles  of  personal  property  previous- 
ly enumerated  in  the  section.  The  word  "oth- 
er" means  that  or  it  is  meaningless.  Hav- 
ing decided  to  give  the  surviving  husband 
or  wife  other  personal  property  not  exceed- 
ing $200  In  value,  in  order  to  make  it  ah- 
solutely  certain  that  such  survivor  should  be 
entiUed  to  such  $200,  the  Legislature  added, 
"And  this  allowance  shall  be  made  to  such 
surviving  husband  or  wife  or  child  or  chil- 
dren, if  any,  as  well  when  he  or  she  or  they 
shall  receive  provision  made  in  the  will  of 
the  deceased  as  when  the  deceased  dies  in- 
testate." It  is  clear  to  my  mind  that  the 
Legislature  Intended  the  words  "this  allow- 
ance" to  apply  only  to  the  "other  perstmal 
property,"  and  that  it  never  was  the  Intoi- 
Uon  of  the  Legislature  that  It  should  apply 
to  the  ornaments,  wearing  apparel,  etc.,  first 
enumerated  in  the  section  under  considera- 
tion. The  "other  personal  property,"  it  will 
be  observed,  is  not  to  be  selected  from  the 
omamenta  and  wearing  appar^  becaoM  by 


Digitized  by  VjOOQ  IC 


Neb.) 


STATE  ▼.  COSGBAVE. 


885 


tbe  word  "otber"  it  is  distinctly  separated 
therefrom.  This  $200  worth  of  personal 
property  it  is  evident  the  Legislature  intend- 
ed might  be  selected  from  personal  property 
ontside  of  what  had  Just  been  described  in 
the  act,  such  as  horses,  cattle,  moneys,  notes, 
mortgages,  and  the  like;  and,  in  order  that 
neither  heirs  at  law  nor  creditors  might 
deprive  the  survivor  of  that  |200  worth  of 
property  by  any  rule  of  construction  such 
as  election  or  the  lllce,  the  Legislature  added 
the  words,  "And  this  allowance  shall  be 
made  to  sudt  surviving  husband  or  wife  or 
child  or  diUdren,  if  any,  as  well  when  he 
or  she  or  they  shall  receive  provision  made 
in  the  will  of  the  deceased  as  when  the 
deceased  dies  intestate."  "In  the  construc- 
tion of  a  statute,  a  limiting  clause  is  gen- 
erally to  be  restrained  to  the  last  preceding 
antecedent"  Potters  Dwarris,  p.  136 ;  Gush- 
ing V.  Worrlck,  9  Gray  (Mass.)  .382 ;  Sedg- 
wick, Construction  of  Statutory  and  Consti- 
tutional Law,  226;  Pearce  v.  Bank  of  Mo- 
bile, 83  Ala.  693,  702;  School  District  t. 
Coleman,  89  Neb.  891,  396,  68  N.  W.  146. 

That  the  Legislature  intended  to  apply  the 
-exception  in  the  case  of  one  dying  testate 
to  the  $200  worth  of  other  personal  property 
is  a  reasonable  construction  is  borne  out  by 
tbe  fact  that  that  clause  of  the  section  un- 
der consideration  designates  the  only  prop- 
erty which  would  provide  support  for  the 
survivor  during  the  time  consumed  In  tbe 
administration  of  the  estate  and  prior  to  the 
time  when  the  bequests  in  the  will  would 
become  available  to  the  beneficiaries.  It  t>e- 
ing  Just  as  necessary  that  a  survivor  should 
have  means  with  which  to  buy  bread  when 
the  deceased  dies  testate  as  when  he  or  she 
dies  intestate,  there  is  good  reason  why  the 
exception  should  have  been  inserted.  This  is 
the  thought  which  runs  through  all  of  the 
authorities.  They  are  quite  uniform  in  hold- 
ing that  it  is  beyond  the  power  of  a  testator 
to  deprive  bis  widow  or  children  of  means  of 
support  during  the  pendency  of  probate  pro- 
ceedings and  prior  to  tbe  time  when  the  be- 
quests in  the  will  l>ecome  available.  To  my 
mind,  there  is  no  escape  from  the  conclusion 
that  the  act  under  consideration  was  design- 
ed to  provide  means  by  which  a  survivor 
oould  obtain  immediate  temporary  support, 
and  that  it  was  not  the  intention  of  the 
Legislature  to  take  away  from  the  owner  of 
personal  property  bis  right  to  dispose  of  the 
same  by  will,  but  to  simply  burden  the  per- 
sonal estate  coming  within  the  exception  re- 
ferred to,  to  tbe  extent  of  providing  such  Im- 
mediate, temporary  support  for  the  survivor. 
If  I  am  right  in  this  construction  of  the  stat- 
ute, then  Mrs.  O'Shea  bad  a  perfect  right  to 
bequeath  the  specific  articles  of  personal 
property  set  out  in  her  will,  as  was  d<me, 
Induding  her  former  husband's  picture  and 
the. wedding  ring  which  he  had  given  her; 
and  aivellee  must  be  satisfied  with  taking 


the  lands  devised  to  him  by  tbe  will,  and 
"other  personal  property";  that  is,  property 
other  than  the  ornaments,  Jewelry,  etc.,  to 
the  extent  of  $200. 

If  I  am  right  in  this,  it  is  not  necessary 
to  either  overrule  or  distinguish  Brichacek 
V.  Brichacek,  76  Neb.  417,  106  N.  W.  473, 
which  could  be  easily  done,  or  to  discuss  tlie 
doctrine  of  election,  which  could  also  be  in- 
voked to  defeat  a  recovery  by  appellee  in 
this  case,  which  is  so  utterly  without  merit 
as  to  call  forth  the  language  of  the  CHIEF 
JUSTICE  in  his  opinion  and  which  for  em- 
phasis I  here  r^eat  "As  we  read  the  will 
and  observe  that  It  confers  upon  the  sister 
of  tbe  deceased  husband  the  ring  given  the 
testatrix  by  him,  and  gives  to  the  son  the 
portrait  of  his  deceased  father,  the  mind  and 
conscience  revolts  and  turns  away  from  al- 
lowing  the  effort  of  appellee  to  thus  ignore 
the  expressed  will  of  his  deceased  wife  from 
whom  he  received  such  lil>eral  provision.  The 
will  was,  no  doubt,  made  In  tbe  firm  belief 
in  tbe  integrity  of  tbe  husband,  and  that 
he  would  respect  her  last  wishes  and  either 
decline  to  accept  the  provisions  made  for 
him  and  take  what  the  law  gave  him,  or  ac- 
cept those  provisions  as  made."  Appellee 
should  not  be  permitted  to  "thus  ignore  the 
expressed  will  of  his  deceased  wife  from 
whom  he  received  such  liberal  provision." 
Being  unwilling  to  deal  Justly  with  the  es- 
tate left  by  her,  and  with  tbe  son  which  she 
committed  to  bis  care,  the  court  should  com- 
pel bim  to  do  so. 


STATE  ex  rel.  LOVE  t.  COSGRAVB, 

County  Judge.     (No.  16,281.) 

(Supreme  Court  of  Nebraska.     Oct  9,  1909.) 

1.  StaTDTES  (J  226*)— CONSTBUOnOR— CSOUBSB 

or  LegisI/ATIon. 

In  order  to  determine  tbe  meaning  of  the 
language  of  an  act  of  the  Legislature,  it  is  prop- 
er to  examine  the  course  of  legislation  upon  toe 
same  general  sabj'ect,  and  to  consider  in  what 
connection  and  with  what  context  it  iiaa  there- 
tofore been  employed. 

[Ed.    Note.— For   other   cases,   see    Statutes, 
Cent  Dig.  §303;    Dec  Dig.  f  226.*] 

2.  Municipal  Cobfobatxons  (I  120*)— Obdi- 

NANCES— OVEBBIDINO  GENEBAL  LAW. 

Where  power  has  been  granted  by  the  Leg- 
islature to  a  municipal  corporation  to  enact  or- 
dinances for  certain  purposes,  and  the  city  acts 
within  the  limits  of  that  power,  Its  action  will 
be  of  equal  force  within  the  corporate  limits  as 
if  taken  by  tbe  Legislature  itself.  And  the  same 
principles  will  apply  in  tbe  constmctlMi  of  such 
an  ordinance  asjf  it  were  a  special  statute  upon 
the  same  subject 

[Ed.  Note.— For  otber  cases,   see  Mnnicipal 
Corporations,  Cent  Dig.  |  279;    Dec.  Dig.  | 

3.  Mtjhioipai.  Cobpobations  (I  84*)  — Cxrr 
Council/— Detebuination  of  EucoTioif  or 
Membxbs. 

An  act  of  tbe  Legislature,  giving  the  dty 
power  by  ordinance  "to  decide  contested  elec- 
tions" (Laws  1887,  p.  201,  c.  11),  does  not  make 


•For  Mher  cues  ■••  aam*  toplo  and  Mctlon  NUMBER  to  Dec.  *  Am.  Dlsi.  1907  to  data,  t  Reporter  IndazM 


Digitized  by  VjOOQ  l€ 


886 


122  NORTHWESTEBN  BXPOBTBB. 


(Neb. 


the  city  council  the  sole  Judge  of  the  election  of 
its  own  members. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  U  18d-191 ;   Dec.  Dig. 

i.  Quo  Wabbanto  (I  8*)— ELECnOZT  Ck>NTE8T 
— EXOLUBIVB  ARD  CONODRBXNT  REUKDIES. 

Under  the  Constitution  of  laws  of  this 
st«te,  the  remedy  of  contest  of  elections  and  quo 
wajrranto  are  cumulative  and  concurrent.  State 
ex  rel.  Fair  r.  Frazier,  28  Neb.  438.  44  N.  W. 
471. 

[Ed.  Note.— For  other  cases,  see  Quo  Wai^ 
ranto,  Cent.  Dig.  |  4;   Dec.  Dig.  S  3.*J 

s:  Statutes  (S  163*)— Befbal  or  Oenebai.  bt 

Special  Act. 

While  a  special  act  upon  a  subject  usually 
modifies  a  general  act,  still,  if  a  remedy  pro- 
TJAed  by  the  later  act  is  not  incompatible  with 
tB^  remedy  provided  by  the  earlier  and  more 
general  law,  both  acts  may  stand. 

(Ed.  Note.— For  other  cases,  see  Statutes, 
Cent.  Dig.  i  238;   Dec.  Dig.  I  163.*] 

at  Action   (S  35*)— Cdmui^tive   Beiibdieb— 
Repeal. 

Where  a  new  remedy  is  provided  by  stat- 
ute for  an  existing  right,  and  it  neither  denies 
as  existing  remedy,  nor  is  incompatible  with  its 
i-omtinned  existence,  the  new  remedy  should  be 
regarded  as  cumulative,  and  the  person  seek- 
i^  redress  may  adopt  and  pursue  either  rem- 
edy at  his  own  option. 

[Ed.  Note.— For  other  cases,  see  Action,  Cent. 
Dig.  I  273 :   Dec.  Dig.  i  85.*] 
7.  Municipal  Cobpobations  (|  136*)— Con- 
test—Remedies. 

The  right  to  contest  the  election  of  a  city 
officer  before  the  city  council  of  Lincoln  under 
an  ordinance  of  that  city,  and  the  right  given  by 
the  general  election  law  to  contest  the  election 
of  city  officers  in  the  county  court,  are  con- 
current remedies,  and  the  contestant  may  elect 
to  proceed  in  either  manner. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  i  309;  Dec.  Dig.  { 
130.*] 

Barnes,  J.,  dissenting. 
(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Lancaster 
County ;   Stewart,  Judge. 

Mandamus  by  the  State,  on  relation  of 
Don  L.  Love  against  P.  James  Cosgrave,  as 
County  Judge.  Judgment  for  respondent, 
and  relator  appeals.    Affirmed. 

0,  0.  Flansburg,  for  appellant.  T.  J.  Doyle 
and  G.  L.  Delacy,  for  appellee. 

LETTON,  J.  At  the  general  municipal 
election  held  In  the  city  of  Lincoln  on  the 
4th  day  of  May,  1909,  Don  L.  Love,  relator, 
and  Robert  Malone  were  candidates  for  the 
office  of  mayor  of  the  city  of  Lincoln.  As  a 
result  of  the  canvass  of  the  returns  of  the 
election  made  by  the  mayor  and  council  as  a 
canvassing  board.  It  was  declared  that  the 
relator  had  been  duly  elected  to  the  office 
of.  mayor  of  the  city,  and  a  certificate  of 
election  was  issued  to  him  by  the  city  clerk. 
He  thereupon  took  the  oath,  entered  upon 
the  possession  of  the  office,  and  is  still  acting 
in  that  capacity.  On  the  14th  day  of  May, 
1909.  Bobert  Malone  filed  bis  petition  in  the 
county  court  of  Lancaster  comity,  before  P. 


James  Cosgrave,  county  judge,  seeking  to 
contest  the  election  of  the  relator  to  tbe 
office  of  mayor.  A  petition  was  filed,  and 
summons  Issued  and  served  upon  the  relator, 
who  objected  to  the  Jurisdiction  of  the  court 
on  the  ground  that  the  determination  of  tbe 
right  to  the  office  of  mayor  was  vested  ex- 
clusively in  the  mayor  and  council  of  tbe 
city  of  Lincoln,  and  tliat  their  decision  de- 
claring him  entitled  to  tbe  office  was  condn- 
Bive.  This  objection  to  the  Jurisdiction  was 
overruled,  and  the  cause  retained  for  trial, 
whereupon  the  relator  brought  this  action  in 
the  district  conrt  of  Lancaster  county  pray- 
ing that  a  peremptory  writ  of  mandamus  be 
issued  directed  to  tlie  respondent,  P.  James 
Cosgrave,  as  county  Judge,  commanding  blm 
to  dismiss  said  contest  of  Bobert  Malone 
against  Don  Lw  Love  for  want  of  Jurisdiction, 
and  to  proceed  no  further  in  the  case.  The 
petition  alleged  that  prior  to  the  election 
there  was  In  full  force  an  ordinance  of  the 
city  prescribing  tbe  manner  of  contesting 
elections  for  city  officers  before  the  city 
council,  and  providing  that  tbe  certificate  of 
election  should  be  withheld  until  the  matter 
was  finally  determined  by  that  body,  when 
it  should  be  issued  to  tbe  party  found  to  be 
entitled  thereto;  that  Malone  was  present 
at  tbe  canvass  of  tbe  TC^te,  made  no  objec- 
tion thereto,  and  gave  no  notice  of  any  in- 
tention to  contest  the  election.  It  further 
alleges  thaj  tbe  court  was  without  Jurisdic- 
tion to  determine  the  contest  after  the  cer- 
tificate of  election  had  been  Issued  to  the 
relator,  that  the  hearing.  If  had,  will  extend 
over  a  long  period  of  time,  will  require  the 
examination  of  upwards  of  8,000  ballots  and 
over  60  pollbooks  and  the  examination  of 
many  witnesses,  and  will  cause  much  use- 
less expense,  that,  the  court  being  without 
jurisdiction,  no  valid  Judgment  for  costs 
could  be  rendered  in  his  favor,  and  that  the 
proceedings  in  all  particulars  would  .l>e  void. 
The  answer  of  tbe  respondent  substantially 
admits  the  allegations  of  tbe  petition,  ex- 
cept those  with  respect  to  want  of  jurisdic- 
tion, which,  it  pleads  affirmatively,  rests 
alone  in  the  county  court.  Upon  these  issues 
the  district  court  found  that  the  county 
court  bad  Jurisdiction,  and  dismissed  tbe  pro- 
ceedings, from  which  Judgment  this  appeal 
has  been  taken. 

By  tbe  provisions  of  section  129  of  the  act 
under  which  the  city  of  Lincoln  is  now  gov- 
erned tbe  city  Is  granted  power  by  ordi- 
nance "to  appoint  judges  and  clerks  of  elec- 
tion provided  by  ordinance  for  tbe  election 
of  city  officers  and  prescribing  tbe  manner 
of  conducting  tbe  same,  and  the  returns 
thereof,  and  for  deciding  contested  elections, 
and  for.  holding  special  elections  for  any  pur- 
pose herein  provided,  and  to  fix  a  compensa- 
tion for  all  officers  of  election."  Subdivision 
4S,  f  129,  a  16,  p.  139,  Laws  1901;  section 
8076,  Cobbey's  Ann.  St  1907.    A  similar  pro- 


•For  otber  esiei  •«•  lam*  topio  >ad  steUon  NCUBBR  In  Deo.  *  Am.  Diss.  UOT  to  date,  *  Reporter  iBdiXM 


Digitized  by  VjOOQ  l€ 


N'eb.) 


STATE  T.  OOSaRAVE. 


887 


vision  waa  Indaded  In  the  charter  act,  which 
was  In  force  In  1895.  In  the  latter  year  an 
ordinance  was  adopted  by  the  city,  which  Is 
set  forth  In  relator's  brief,  as  follows :  "That 
whenever  any  candidate  for  any  office,  or  an 
elector  chooses  to  contest  the  validity  of  the 
election  of  any  officer,  he  shall,  within  two 
days  after  the  closing  of  the  polls,  give  no- 
tice in  writing  to  the  person  whose  election 
he  intends  to  contest  of  his  Intention  so  to 
do,  a  copy  of  which  notice  shall  be  filed  with 
the  city  clerk  before  the  time  fixed  for  the 
canvass  of  the  returns  as  hereinbefore  pro- 
vided for ;  and  the  said  council  shall,  imme- 
diately after  the  canvass  of  the  returns,  or 
at  a  subsequent  time  to  be  fixed  by  them, 
and  before  the  result  of  said  canvass  Is  de- 
clared proceed  to  hear  the  contestants,  as 
hereinbefore  provided.  All  such  contests  be- 
fore the  city  council  shall  be  governed  by 
and  condncted  In  accordance  with  the  gen- 
eral statutes  of  the  state  of  Nebraska  relat- 
ing to  contests  of  election,  and  when  the 
mayor  and  council  shall  receive  notice  of 
any  contest,  they,  together  with  the  city 
clerk,  shall  withhold  the  certificate  of  elec- 
tion until  tlie  matter  shall  be  finally  deter- 
mined by  the  council,  when  the  certificate 
of  election  shall  be  issued  in  accordance 
therewith."  Section  71  of  the  general  elec- 
tion law  (Comp.  St  1909,  {  3281)  provides: 
*The  county  courts  shall  hear  and  determine 
contests  of  all  other  county,  township  and 
precinct  officers,  and  officers  of  cities  and 
incorporated  villages  within  the  county."  It 
Is  contended  by  the  relator  that  the  act  of 
1887  (Laws  1887,  p.  244,  c.  11,  g  68,  subd. 
26),  providing  for  the '  organization  of  the 
government  of  cities,  and  conferring  power 
upon  the  council  to  pass  ordinances  for  "de- 
ciding contested  elections,"  which  power 
was  exercised  by  the  passage  of  the  ordi- 
nance above  referred  to,  constituted  a  repeal, 
within  the  corporate  limits  of  the  city  of 
Lincoln,  of  the  general  law  providing  for 
contests  of  election  of  city  and  village  of- 
ficers, and  that  the  Jurisdiction  thereby  con- 
ferred upon  the  city  council  is  exclusive, 
while  the  respondent  contends:  First,  that 
the  ordinance  itself  evinces  no  such  purpose ; 
second,  that  it  is  beyond  the  legal  power  of 
a  city  to  repeal  by  ordinance  a  general  law 
of  the  state. 

In  order  to  determine  the  meaning  of  the 
language  used  by  the  Legislature,  it  is  prop- 
er to  examine  the  course  of  legislation  upon 
the  same  general  subject,  and  to  consider  in 
what  connection  and  with  what  context  it 
has  been  heretofore  employed.  The  exact 
language  we  are  considering  first  appears  in 
the  legislative  history  of  this  state  in  an  act 
entitled  "An  Act  to  Incorporate  Cities  of  the 
Second  Class,"  approved  March  1, 1871  (Laws 
1870-71,  jpp.  26,  34),  by  which  act  the  dty 
was  given  power  to  enact  ordinances  "To 
appoint  Judges  of  all  elections  provided  by 
ordinance  for  the  election  of  city  officers, 
and  prescribing  the  manner  of  conducting 


the  same,  and  for  deciding  contested  elec- 
tions, and  for  holding  special  elections  for, 
any  purpose  herein  provided."  In  March, 
1879,  a  new  act  was  passed  (Laws  1879,  p. 
193),  omitting  the  provision  giving  power  to 
the  council  to  decide  contested  elections,  and 
at  the  same  session  (Laws  1879,  p.  240)  the 
pr^ent  general  election  law  was  passed, 
which  confers  upon  the  county  courts  the 
power  to  hear  and  determine  contests  of  the 
election  of  officers  of  cities  and  incori>orated 
villages  within  the  county,  and  which  far- 
ther provides  the  method  of  procedure  in  the 
courts.  At  the  end  of  this  session  of  the 
Legislature,  therefore,  the  power  to  decide 
contested  elections  as  to  city  officers  had 
been  taken  from  the  city  council  and  vested 
In  the  county  court  In  the  act  of  March  1, 
1883  (Laws  1883,  p.  130,  c.  16),  which  provid- 
ed for  the  organisation  and  gpTemment  of 
cities  containing  between .  10,000  and  26,000 
inhabitants,  the  language  of  the  earlier  act 
was  again  Inserted,  and  in  1887  an  act  pro- 
viding for  the  government  of  cities  of  more 
than  26,000  and  less  than  60,000  Inhabitants 
was  passed,  containing  the  identical  language 
used  in  the  acts  of  1871  and  1883.  No  change 
in  this  respect  has  since  been  mad& 

Up  to  the  time  of  the  passage  of  the  gen- 
eral election  law  in  1879  no  tribunal  was 
provided  by  statute  In  which  a  contest  for 
the  election  of  city  officers  could  be  had,  un- 
less one  was  established  by  the  city  council, 
under  the  general  power  to  enact  ordinances 
"to  decide  contested  elections."  In  1879  this 
power  was  withdrawn,  but  in  1883  it  was 
again  conferred,  and,  in  our  opinion,  still 
exists.  It  is  said,  however,  that  it  is  be- 
yond the  -power  of  the  city  to  repeal  by  ordi- 
nance a  general  law  of  the  state.  There  is 
no  doubt  that  this  is  true  with  reference  to 
some  general  laws,  but  it  is  not  true  as  to 
all.  Penal  statutes  passed  under  and  by 
virtue  of  the  police  powers  of  the  state  may 
not  be  Umited  or  cut  down  in  their  opera- 
tion by  ordinances  passed  by  municipal  cor- 
porations under  the  police  power.  It  conld 
never  be  the  intention  of  the  Legislature  to 
grant  powers  which  might  be  used  to  abro- 
gate and  nullify  the  existing  general  laws 
upon  such  subjects,  though  it  has  been  held 
the  city  may  impose  additional  penalties. 
But  as  to  such  matters  as  might  be,  and 
have  In  the  past  been,  committed  to  the  con- 
trol of  the  corporate  authorities,  but  as  to 
which  the  state  has  later  assumed  control, 
an  act  reconferring  the  power  upon  the  mu- 
nicipal authorities  is  not  inconsistent  with 
the  general  law,  and  an  ordinance  passed 
in  pursuance  of  such  power  will  have  the 
same  effect  withm  the  limits  of  the  city,  as 
if  it  had  been  passed  by  the  Legislature  it- 
self. Smith,  Municipal  Corporations,  {  622 ; 
Ingersoll  on  Public  Corporations,  236;  28  Qyc. 
365,  366.  If  the  ordinance  la  repugnant  to 
the  general  law,  the  general  law  will  yield, 
or  if  not  repugnant  the  general  law  may  be 
modified.    This  is  upon  the  recognized  prin- 


Digitized  by  LjOOQIC 


888 


122  NORTHWBSTEBN  BEPORTEB. 


(Neb. 


dple  that  general  l^islation  upon  a  partlcu- 
.  lar  subject  must  give  way  to  special  legisla- 
tion upon  the  same  subject  State  t.  Mayor, 
etc.,  Morristown,  33  N.  J.  Law,  67,  61 ;  State 
V.  Clarke,  25  N.  J.  Law,  54 ;  In  re  Snell,  58  Vt 
207,  1  Atl.  566 ;  Goddard,  Petitioner,  16  Pick. 
(Mass.)  504,  28  Am.  Dec.  259 ;  St  Johnsbury 
V.  ■Thompson,  59  Vt  301,  9  AO.  571,  59  Am. 
Rep.  781.  From  this  view  of  the  history  of 
the  legislation,  and  following  the  principle 
that  where  power  has  been  granted  by  the 
Legislature  to  a  municipal  corporation,  and 
it  acts  within  the  limits  of  that  power,  its 
action  will  be  of  equal  force  as  if  taken  by 
the  Legislature  itself,  we  have  no  hesitation 
in  holding  that  the  city  council,  by  the  pas- 
sage of  the  ordinance  in  question,  exercised 
a  power  granted  to  it  by  the  Legislature, 
and  that  it  has  Jurisdiction  to  consider  and 
decide  contests  relating  to  the  election  of 
city  officers. 

But,  respondent  contends  that  the  lan- 
guage "To  appoint  Judges  and  clerks  of  elec- 
tion provided  by  ordinance  for  the  election 
of  city  officers  and  prescribing  the  manner  of 
conducting  the  same,  and  the  returns  there- 
of, and  for  deciding  contested  elections," 
should  be  construed  to  apply  only  to  elec- 
tions provided  by  ordinance  for  the  election 
of  dty  officers  other  than  those  whose  elec- 
tion is  required  by  statute,  and  that  since 
the  charter  permits  the  creation  of  other  city 
officers  who  may  be  elected,  the  provisions 
of  the  act  and  of  the  ordinance  apply  only 
to  them,  and  not  to  city  officers  whose  elec- 
tion is  prescribed  by  statute.  But  we  find 
no  authority  in  the  statute  given  to  the  coun- 
cil to  provide  by  ordinance  for  the  election 
of  any  officers  other  than  those  named  there- 
in, and  by  the  provisions  of  section  26  of 
the  act  (Laws  1901,  p.  79 ;  section  7925,  Cob- 
bey's  Ann.  St  1907)  it  is  provided  that:  "The 
mayor  shall  have  power  by  and  with  the  con- 
sent of  a  majority  of  the  council  to  appoint 
all  officers  that  may  be  deemed  necessary  in 
the  administration  of  the  city  government, 
other  than  those  provided  for  in  this  act" 
We  think,  therfore,  this  construction  is  un- 
warranted. 

The  main  argument  of  the  relator  is  that 
while  the  language  of  the  statute  does  not 
say  so  in  express  terms,  yet  its  effect  is  to 
make  the  city  council  the  sole  Judge  of  the 
election  and  qualification  of  its  own  mem- 
bers, and  therefore  that  its  determination  is 
final  and  conclusive.  In  one  of  the  first  acts 
passed  in  this  state  incorporating  cities,  it 
was  expressly  provided  that  the  council 
should  "be  the  Judges  of  the  election,  and 
qualification  of  its  own  members"  (Laws 
1869,  p.  41,  i  27),  but  this  act  was  repealed, 
and,  so  far  as  the  writer  has  been  able  to 
find,  the  language  has  never  l>een  used  in  a 
subsequent  act  We  think  the  language  now 
used  comes  far  from  implying  that  the  coun- 
cil shall  be  the  sole  Judge  of  the  election  of 
its  own  members,  and  that  if  the  Legislature 
had  80  Intended,  it  would  hare  so  said.    Re- 


lator dtes  In  support  of  his  contention. 
Steams  v.  Wyoming,  53  Ohio  St  852,  41  N. 
B.  678;  Weston  v.  Probate  Court  69  Mich. 
600,  37  N.  W.  698;  Naumann  v.  Board,  73 
Mich.  252,  41  N.  W.  267;  Commonwealth  ▼. 
Leech,  44  Pa.  332;  Linear  v.  Bettenhouse, 
94  III.  208,  and  other  cases.  The  respondent 
on  his  part  contends  that  the  reipedies  by  quo 
warranto,  and  by  contest  before  the  coimty 
court  under  the  statute,  still  exist  even  con- 
ceding that  the  power  is  also  possessed  by 
the  city  council  under  the  ordinance.  He 
cites  as  upholding  his  contention  the  follow- 
ing cases:  State  ex  rel.  Anderson  v.  Kempf, 
69  Wis.  470,  34  N.  W.  226,  2  Am.  St  Bep. 
587;  Ex  parte  Heath,  3  Hill  (N.  T.)  42; 
Commonwealth  v.  Allen,  70  Pa.  465;  State 
«x  rel.  Diepenbrock  v.  Gates,  35  Minn.  385, 
28  N.  W.  927;  Carter  v.  Superior  Court  of 
Sonona  Co.,  138  Cal.  150,  70  Pac.  1067.  It 
would  extend  this  opinion  to  an  unnecessary 
length  to  examine  and  compare  these  cases. 
It  is  enough  to  say  that  there  is  a  conflict 
of  authority  upon  the  question  as  to  whether 
a  provision  making  the  city  council  the  Judges 
of  the  election  and  qualifications  of  its  own 
members  operates  to  deprive  the  courts  of 
their  Jurisdiction  by  quo  warranto,  or  wheth- 
er the  statutory  right  of  contest  only  affords 
a  cumulative  remedy  to  that  furnished  by 
the  common-law  procedure.  Perhaps  the  bet- 
ter rule  is  that,  unless  it  is  clear  and  certain 
that  the  Legislature  Intended  to  deprive  the 
courts  of  their  Jurisdiction,  the  remedy  by 
quo  warranto  and  perhaps  of  contest  also 
will  still  exist  Mr.  Dillon  says  (3  Mnnidpai 
Corporations,  {  202):  "It  is  not  unusual  for 
charters  to  contain  provisions  to  the  effect 
that  the  common  council  or  governing  body 
of  the  municipality  shall  be  the  Judges  of  the 
qualifications  or  of  the  qualifications  and 
election  of  its  own  members,  and  of  those  of 
the  other  officers  of  the  corporation.  What 
effect  do  provisions  of  this  kind  have  upon 
the  Jurisdiction  of  the  superior  courts?  The 
answer  must  depend  upon  the  language  in 
which  these  provisions  are  couched,  viewed  in 
the  light  of  the  general  laws  of  the  state  on 
the  subject  of  contested  elections  and  quo 
warranto.  The  prindple  is  that  the  Jurisdic- 
tion of  the  court  remains,  unless  It  appears 
with  unequivocal  certainty  that  the  Legisla- 
ture Intended  to  take  it  away.  Language 
like  that  quoted  above  will  not  ordinarily 
have  this  effect,  but  will  be  construed  to  af- 
ford a  cumulative  or  primary  tribunal  only, 
not  an  exdusive  one."  Under  the  Constitu- 
tion and  laws  of  this  state  relathig  to  quo 
warranto  there  is  no  question  but  that  the 
remedies  by  contest  and  quo  warranto  are 
cumulative,  and  that  the  Legislature  would 
have  no  power  to  take  away  the  right  to  ap-  v 
ply  to  the  courts  to  inquire  by  what  right  the 
Incumbency  of  an  office  is  held.  Kme  v.  Peo- 
ple, 4  Neb.  509 ;  State  ex  rel.  Fair  v.  Frazier, 
28  Neb.  438,  44  N.  W.  471;  State  ex  rel. 
Barton  v.  Frantz,  65  Neb.  167,  76  N.  W.  546. 
In  this  respect  we  agree  with  the  Supreme 


Digitized  by  VjOOQ  l€ 


Neb.) 


SPALDING  V.  DOUGLAS  COUNTY. 


88» 


Court  of  Wisconsin  in  Anderson  v.  Kempf, 
supra,  and  other  courts  adhering  to  the  same 
doctrine. 

The  question  remains  whether  it  was  th; 
intention  of  the  Legislature  to  put  It  within 
the  power  of  a  city  council  to  take  awa;  from 
the  county  court  the  jurisdiction  In  contested 
election  matters  conferred  upon  it  under  the 
general  election  law.  The  remedy  provided 
by  the  ordinance  Is  a  summary  one.  The  con- 
testant must  file  his  notice  of  contest  within 
two  days  after  the  polls  close,  and  before  the 
returns  have  been  canvassed.  Within  such  a 
short  time  after  the  closing  of  the  polls  it 
might,  under  certain  circumstances,  be  well- 
nigh  impossible  for  him  to  acquire  any  ac- 
curate and  definite  knowledge  of  wliat  may 
have  occurred  at  each  and  all  of  the  many 
polling  places  within  the  city.  There  are  many 
conditions  which  may  arise  wtiich,  for  the 
public  Interest,  require  a  speedy  determina- 
tion of  the  question  as  to  the  person  who  is 
entitled  to  the  certificate  of  election.  Where 
the  controversy  over  the  election  is  confined 
to  a  narrow  range,  or  the  facts  which  may 
determine  the  contest  may  readily  be  ascer- 
tained, the  summary  remedy  provided  by  the 
ordinance  would  probably  prove  efiEectlve  for 
the  ascertainment  of  the  actual  fact  and  tbe 
settlement  of  the  question.  Where  a  con- 
testant believes  that  the  facts  showing  his 
right  to  the  office  are  so  clear  and  positive 
that  the  necessary  effect  of  the  summary 
procedure  will  be  to  make  bis  title  certain, 
it  is  to  his  benefit,  as  well  as  to  that  of  the 
community  at  large,  that  the  matter  should 
be  promptly  settled  before  the  issuance  of  the 
certificate  of  election,  but  where  the  deter- 
mination of  the  question  requires  the  ex- 
amination of  many  witnesses,  the  counting  of 
a  large  number  of  ballots,  and  the  settlement 
of  purely  legal  questions  as  to  the  residence 
of  voters  and  to  the  right  to  vote,  it  is  evi- 
dent that  a  court  is  a  much  safer  and  more 
competent  tribunal  to  sit  in  Judgment  than 
the  city  council  would  be.  The  right  of  ap- 
peal from  an  adverse  decision  to  the  district 
and  Supreme  Courts  Is  also  given  to  the  con- 
testant before  the  court,  while  the  determina- 
tion by  the  council,  if  relator  is  correct.  Is 
flnaL  Repeals  by  Implication  are  not  favor- 
ed; and,  where  a  later  enactment  Is  not  re- 
pugnant to  a  former  one,  It  does  not  repeal 
the  same  by  Implication.  While  a  special  act 
upon  the  same  subject  usually  modifies  a  gen- 
eral act,  still,  where  the  temedy  provided  by 
the  later  act  is  not  incompatible  with  the 
remedy  provided  by  the  earlier  and  more  gen- 
eral law,  both  acts  may  stand  and  be  enforc- 
ed. In  the  case  of  State  ez  rel.  Jarvis  t. 
Craig,  100  Minn.  S52,  111  N.  W.  3,  the  facts 
were  that  a  city  council  was  given  power  by 
ordinance  to  canvass  the  result  of  votes  cast 
In  a  city  election  and  declare  the  result,  and 
was  made  the  judge  of  election  and  qualifica- 
tions of  Its  own  members.    A  later  statute 


permitted  such  a  contest  to  be  made  in  tbe 
district  court  The  court  held  that  the  later 
act  did  not  deprive  the  city  council  of  Juris- 
diction over  the  election  contest,  but  that  the- 
remedies  were  concurrent  The  conclusion 
reached  in  tliat  case  is  in  accordance  with 
the  principle  that  where  a  new  remedy  i» 
provided  by  statute  for  an  existing  right,  and 
it  neither  denies  an  existing  remedy  nor  is 
incompatible  with  its  continued  existence,  the 
new  remedy  should  be  regarded  as  cumula- 
tive, and  the  person  seeking  redress  may 
adopt  and  pursue  either  remedy  at  bis  option. 
Feuckter  v.  Keyle  et  al.,  48  Ohio  St  357, 27  N. 
E.  SCO ;  7  Encyl.  P.  &  P.  373,  and  cases  dted. 

We  can  see  nothing  Incompatible  in  the 
concurrent  existence  of  these  remedies.  The 
summary  remedy  provided  by  the  council 
may  be  complete  and  adequate  in  many  in- 
stances, while  the  longer  period  of  time  with- 
in which  to  ascertain  the  facts  and  to  pre- 
pare and  present  the  legal  questions  involved, 
and  the  opportunity  to  submit  the  controver- 
sy to  the  deliberate  and  impartial  judgment 
of  the  courts  may,  in  other  Instances,  prove 
the  only  possible  means  of  eliciting  the  true 
facts  and  administering  Justice.  We  are  of 
opinion  that  the  contestant  Malone  had  the 
option  to  avail  himself  of  the  summary  reme- 
dy provided  by  the  city  ordinance,  or,  If  he 
deemed  tbe  statutory  remedy  better  suited  to 
the  ascertainment  and  determination  of  the 
question  Involved,  he  had  a  right  to  adopt 
that  method  of  procedure  instead  of  the  oth- 
er. This  makes  inevitable  the  conclusion 
that  the  county  court  was  not  deprived  of  Its 
jurisdiction  by  the  provisions  of  the  charter 
and  by  the  enactment  of  the  ordinance  relied 
upon  by  the  relator  as  giving  the  city  council 
exclusive  power  to  determine  the  contest 

The  judgment  of  tbe  district  court  denying 
the  writ  is  therefore  affirmed. 

BARNES,  J.  I  dissent  from  the  conclusion 
announced  by  the  majority  opinion.  I  am  in 
accord  with  so  much  of  tlie  opinion  as  holds 
that  the  city  council  has  jurisdiction  of  the 
election  contest  in  question  in  this  case.  I 
am  of  opinion  that  such  jurisdiction  is  ex- 
clusive, and  that  the  writ  prayed  for  by  tbe 
relator  should  issue. 


SPALDING  ▼.  DOUGLAS  COUNTY. 
(No.  15,784.) 

(Supreme  (Tourt  of  Nebraska.     Oct  22,,  ig09.> 

1.  Pleading  (g  214*)  —  DBatuaaEB  —  Admis- 
sion. 

A  litigant  who  stands  upon  a  general  de- 
murrer to  a  pleading  thereby  admits  all  of  the 
material  facts  well  pleaded,  and  must  take  the 
consequences  which  resalt  from  such  an  admis- 
sion. 

[Ed.   Note.— For   other   cases,   see   Pleading, 
Cent.  Dig.  {§  523-534;    Dec.  Dig.  {  214.*] 


*roT  oUiar  eaiM  aaa  same  topie  and  nctton  NUHBBR  la  Deo.  &  Am.  Dlsi.  U07  to  <M»,  te  Raportw  ladura 


Digitized  by  LjOOQ  l€ 


890 


122  NORTHWESTERN  REPORTER. 


(Neb. 


2.   JtJBT   (I  77*)— COMPKNSAHON  OF  JUBOBS. 

A.  juror  drawn  for  three  creeks'  Berrice  in 
the  district  court  of  Douglas  county  who  ap- 
pears and  serves  as  a  juror  in  said  court  during 
that  period  is  entitled  to  recover  for  all  of  the 
days  of  said  term,  Sundays  excepted,  unless 
excused  from  such  attendance  by  the  court. 

[Ed.  Note. — For  other  cases,  see  Jury,  Cent. 
Dig.  §1  392-899;    Dec.  Dig.  $  77.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Douglas  Coun- 
ty;   Estelle,  Judge. 

Action  by  L.  D.  Spalding  against  Doug- 
las County.  Judgment  for  plaintiff,  and-  de- 
fendant appeals.     Affirmed. 

James  P.  English  and  Oeo.  A.  Magn^, 
for  appellant    H.  H.  Bowes,  for  appellee. 

ROOT,  X  Plaintiff  sued  defendant  for 
compensation  as  a  Juror,  and  alleged  In  bis 
petition  tbat  be  was  duly  summoned  as  a 
juror  for  the  first  tbree  weeks  of  the  May, 
1908,  term  of  said  court;  that  he  reported 
for  duty  May  4, 1908,  and  was  in  the  discharge 
of  his  duties  as  such  juror  during  all  of  said 
three  weeks  and  three  days  In  addition ;  that 
he  was  discharged  May  27,  1908,  "being  in 
iitteudance  upon  said  court  for  twenty-one 
days";  that  compensation  for  two  days 
claimed  by  him  was  denied  by  the  commis- 
sioners "for  the  reason  that  said  two  days 
were  Saturdays,  and  the  court  was  not  on 
said  two  days  engaged  in  the  trial  of  jury 
cases."  The  county  filed  a  general  demur- 
rer, which  was  overruled.  Defendant  elect- 
ed to  stand  upon  its  demurrer,  and  Judgment 
was  rendered  In  favor  of  plaintiff.  Defend- 
ant appeals. 

1.  Defendant  has  evidently  accepted  the 
benefits  of  sections  668a  to  668n,  inclusive, 
of  the  Code  of  Cltil  Procedure.  Under  the 
provisions  of  those  sections  of  the  statute, 
the  clerk  of  the  district  court  In  the  presence 
of  the  county  clerk  and  one  of  the  Judges 
of  the  district  court  Is  required  at  least 
20  days  preceding  the  first  day  of  every  term 
of  said  court  to  draw  from  a  box  or  wheel 
the  names  of  30  residents  of  the  county  for 
Jury  service  during  three  weeks.  From  those 
veniremen  24  are  retained  for  service.  A 
like  number  of  Jurors  are  provided  for  each 
one  of  the  judges  should  more  than  one  of 
them  be  engaged  in  the  trial  of  jury  cases. 
By  identical  proceedings  the  panel  is  renew- 
ed every  three  weeks,  and  provision  is  made 
for  extra  Jurors  for  the  trial  of  felony  cases. 

Section  C6Sd,  supra,  among  other  things 
provides:  "All  jurors  on  the  regular  panels 
shall  serve  during  the  weeks  or  term  for 
which  they  are  drawn  and  until  discharged 
from  the  case  In  which  they  may  be  serving, 
if  any,  at  the  expiration  of  such  time  unless 
sooner  excused  by  the  court."  Section  15,  c. 
28,  Comp.  St.  1900.  provides:  "Grand  and 
petit  jurors  shall  receive  for  their  services 
two  dollars  for  each  day  employed  In  the 


discharge  of  their  duties  and  mileage  at  the 
rate  of  five  cents  for  each  mile  necessarily 
traveled."  The  demurrer  admits  all  of  the 
all^atlons  of  fact  well  pleaded  in  the  peti- 
tion. It  is  therefore  an  admitted  fact  that 
plaintiff  was  in  attendance  on  the  district 
court  of  Douglas  count7  as  a  Juror  for  21 
days.  While  it  was  argued  at  the  bar  that 
he  was  excused  for  two  Saturdays  during 
that  period,  and  therefore  was  not  discharge 
Ing  bis  duties  as  a  Juror,  it  is  not  so  stated 
in  the  peUtlon.  Sections  668a-668n,  Code 
Civ.  Proc.,  snpra,  have  a  limited  application 
in  the  state,  and  contemplate  service  by  Ju- 
rors in  attendance  on  the  district  court  dar- 
ing a  term  of  three  weeks  unless  sooner  ex- 
cused by  the  court  Plaintiff  was  not  excused 
from  service  as  a  Juror,  but,  on  the  con- 
trary, the  demurrer  admits  that  he  was  In 
attendance  during  all  the  days  for  which  he 
claims  compensation. 

.  Under  the  admitted  facts,  defendant  was 
liable,  and  the  Judgment  of  the  district  court 
Is  afSrmed. 


BETTLE  et  al.  v.  TIEDOEN  et  aL    (No. 

16,169.) 

(Supreme  ^urt  of  Nebraska.    Oct  22,  1909.) 

1.  Appeal  and  Ebbob  (i  1097*)— Law  or  the 

Case. 

On  appeal  to  the  Supreme  Court,  the  de- 
termination of  a  question  becomes  the  law  of 
the  case,  and  ordinarily  will  not  be  re-examined 
on  a  subsequent  appeal  in  the  same  case. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  H  4358-4368;  Dec.  Dig.  | 
1097.»] 

2.  Mobtoaqks  (§  249»)—AssiowMENT  — Pay- 
ment TO  Mortgagee— Estoppel. 

Where  a  mortgagee  assigned  the  mortgage 
as  collateral  security,  and  afterward  received 
payment  of  the  debt,  but  failed  to  turn  it  over 
to  the  assignee,  the  landowner  who  made  the 
payment  with  constructive  notice  of  the  assign- 
ment cannot  defeat  foreclosnre  on  the  ground 
that  the  assignee  Is  estopped  to  deny  mortga- 
gee's agency  for  the  purpose  of  collecting  the 
debt  without  proving  the  agency  or  facts  con- 
stituting an  estoppel. 

[Ed.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  {§  668-670;    Dec.  Dig.   {  2^.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Coxat,  Madison  Coxm- 
ty;   Welch,  Judge. 

Action  by  Edward  Bettle  and  others  against 
John  F.  Tiedgen  and  others.  Judgment  fo'r 
plaintiffs,  and  John  Reimers  appeals.  Af- 
firmed. 

See,  also,  116  N.  W.  959. 

O.  A.  Abbott,  for  appellant  F.  A.  Brogan. 
for  appellees. 

ROSE,  J.  This  is  a  suit  to  foreclose  a 
mortgage  for  $3,200  on  320  acres  of  land 
In  Madison  connty.  The  Omaha  Loan  & 
Trust  Company  was  mortgagee.  As  collater- 
al security  for  Its  debentures.  It  assigned 


*For  other  cases  see  same  topic  and  lectlon  NUMBER  In  Dec.  *  Am.  Digs.  1807  to  data,  *  Reportor  Ind«x«* 


Digitized  by 


Google 


Xeb.) 


J.  L  CASE  THRESHING  MACH.  CO.  ▼.  EDMISTEK. 


891 


the  mortgage  and  the  note  secured  thereby 
to  Us  trustee,  the  Boston  Safe  Deposit  & 
Trust  Company,  and  the  trustee  sold  them  to 
plaintiffs  under  the  terms  of  the  contract 
creating  the  trusteeship.  Defendant,  John  F. 
Tledgen,  was  mortgagor.  Subject  to  the 
mortgage  lien,  defendant  John  Belmers  ac- 
quired title  to  the  land,  and  pleaded  and 
proved  that  he  i>aid  the  amount  of  the  debt 
and  Interest  to  the  original  mortgagee.  The 
latter,  however,  soon  became  insolvent,  and 
the  payment  never  reached  the  holders  of 
the  note  and  mortgage.  The  district  court 
entered  a  decree  of  foreclosure,  and  the  con- 
troversy is  presented  on  an  appeal  by  Reim- 
ers.  The  case  was  here  before,  and  the  facts 
are  more  fully  stated  in  a  former  opinion. 
Settle  V.  Tledgen,  77  Neb.  799,  Ue  N.  W. 
969. 

It  Is  condnsively  shown  that  mortgagee 
formally  assigned  the  mortgage  to  the  Bos- 
ton Safe  Deposit  ft  Trust  Company,  and  that 
the  assignment  was  duly  recorded  in  the 
office  of  the  register  of  deeds  in  Madison 
county  before  appellant  made  the  payment 
on  which  be  relies  as  a  defense.  He  never- 
theless insists  he  had  no  actual  notice  of 
the  assignment,  and  that  he  is  not  bound  by 
the  notice  imparted  by  the  public  record 
mentioned.  An  adverse  ruling  announced  in 
two  eaclter  <q>iniona  is  now  the  law  of  the 
case.  Bettle  v.  Tledgen,  77  Neb.  795,  803,  116 
N.  W.  959.  Having  procured  on  his  former 
appeal  a  decision  that  he  is  bound  by  con- 
Btmctlve  notice  of  mortgagee's  assignment, 
that  question  Is  not  now  open  to  contro- 
versy. Porter  v.  State,  78  Neb.  792,  103 
N.  W.  C69. 

Appellant  also  argnes  that  mortgagee,  for 
the  purpose  of  collecting  the  debt,  was  the 
agent  of  the  owner  of  the  mortgage,  and 
that  plaintiffs  and  their  assignors  are  estop- 
ped to  deny  such  agency.  These  doctrines 
were  invoked  by  appellant  on  former  heat^ 
Ings  on  the  first  appeal,  and  it  was  held  that 
neither  agency  nor  estoppel  was  pleaded  in 
the  answer.  When  the  cause  was  remanded, 
however,  appellant  had  an  opportunity  to 
plead  the  facts  constituting  those  defenses, 
and  to  support  them  by  proof.  After  the  an- 
swer had  been  amended,  the  testimony  ad- 
mitted at  the  first  trial,  with  some  addi- 
tional proofs,  was  considered  at  the  second 
trial.  In  considering  this  appeal,  alT  the  evi- 
dence adduced  at  both  trials  has  been  care- 
fully examined.  The  contract  showing  the 
nature  of  the  business  relations  between  the 
two  trust  companies  appears  in  the  record. 
Officers  and  employes  of  both  were  interrogat- 
ed in  relation  to  the  course  of  business  be- 
tween the  two  companies,  and  testified  to  the 
transactions  involved  in  tbis  suit,  but  there 
was  proof  of  no  fhct  which  would  Justify  a 
finding  that  an  agency  existed  for  the  pur- 
pose of  making  collections  or  that  plaintiffs 
were  estopped  to  deny  such  agency.    On  the 


contrary,  there  is  convincing  ptoot  that  the 
Omaha  Loan  &  Trust  Company  was  not  per- 
mitted to  withdraw  any  of  its  collateral  un- 
til after  it  had  furnished  the  Boston  Safe 
Deposit  &  Trust  Company  an  equivalent  in 
other  securities  or  money.  In  entering  the 
decree  of  foreclosure,  therefore^  the  trial 
court  pursued  the  only  course  open  to  a 
court  of  equity. 

It  foUowB  that  the  Judgment  must  be  af- 
firmed* 


J.    I.   CASE  THRESHING   MACH.   CO.    ▼. 

EDMISTEN  et  al.    (No.  15,774.) 
(Supreme  Court  of  Nebraska.     Oct  22,  1909.) 

JUDOICBRT  (i  see*)— RKVIVAI^-JUBISDIOTIOIT. 

A  district  court  in  which  the  transcript  o( 
a  judgment  of  another  district  court  has  been 
Sled  is  without  authority  to  revive  the  judgment 
by  the  statutory  method  of  revival  created  by 
section  473,  Code  Civ.  Proc.,  such  power  re- 
maining in  the  court  of  original  jurisdiction. 

[Ed.  Note.— For  other  cases,  see  Judgment, 
Cent.  Dig.  !  1603 ;   De&  Dig.  |  866.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Cktnrt,  Furnas  Conn- 
ty;  Pound,  Judge. 

Action  by  the  J.  I.  Case  Threshing  Machine 
Company  against  Jonathan  Edmisten  and 
others.  Judgment  for  defendants,  and  plain- 
tiff appeals.    Affirmed. 

Robert  A.  Moore,  J.  F.  Fultz,  and  O.  A. 
Abbott,  for  appellant  Perry  &  Lambe,  for 
appellees. 

ROSE,  J.  This  is  a  proceeding  in  the  dis- 
trict court  of  Furnas  county  to  summon  Ja- 
cob Bctz  and  others  as  garnishees  and  to  sub- 
ject property  of  Jonathan  Hlgglns  in  their 
hands  to  the  payment  of  a  Judgment  in  fa- 
vor of  plaintiff.  The  Judgment  which  plain- 
tiff is  thus  attempting  to  enforce  was  render- 
ed against  Hlgglns  and  others  in  the  district 
court  of  Nemaha  county.  Neb.,  November  20, 
1878,  for  the  sum  of  $799.19,  and  a  transcript 
of  the  record  thereof  was  lodged  In  the  dis- 
trict court  of  Custer  county  September  2, 
1889,  where  an  order  of  revivor  as  to  Higgins 
was  rendered  February  14,  1908,  plaintiff 
having  pursued  the  statutory  method  created 
by  section  473  of  the  Code  of  Civil  Procedure 
for  the  revival  of  Judgments.  A  transcript 
of  the  record  on  file  In  the  district  court  of 
Cluster  county  and  a  copy  of  the  order  of 
revivor  there  entered  were  filed  in  the  office 
of  the  clerk  of  the  district  court  of  Furnas 
county  March  12,  1908,  and  plaintiff  alleges 
an  execution  was  subsequently  issued  from 
that  court  against  Higgins  and  returned  un- 
satisfied. After  the  garnishees  had  been 
served  with  process,  the  case  was  submitted 
to  the  district  court  of  Furnas  county  on  ft 
motion  hy  Higgins  to  quash  the  garnishment 
This  motion  was  sustained,  and  plaintiff  ai>- 
peals. 


•For  other  eaiM  ■••  nun*  tgplo  and  mcUod  NUUBBR  1b  Dec.  it  Am.  Dlgi.  1907  to  data,  *  Reportw  Indozti 


Digitized  by  VjOOQ  IC 


892 


122  NORTHWESTERN  REPORTER. 


(Neb. 


One  reason  for  releasing  the  garnishees  1b 
stated  In  the  motion  as  follows:  "The  said 
original  Judgment,  If  any  was  rendered,  was 
so  rendered  in  Nemaha  county.  Neb.  The  at- 
tempted revivorship  proceeding  was  had  In 
Custer  county.  Neb.,  and  not  in  the  said  coun- 
ty where  the  original  judgment  was  rendered, 
and  is  therefore  void  and  without  any  au- 
thority of  law."  PlalntilTs  Hen  In  Custer 
county  had  expired  long  before  there  was  any 
attempt  to  revlTe  the  Judgment  there.  It 
was  dormant  before  the  revivor  as  to  Higgins 
was  entered.  If  the  order  renewing  the  lien 
was  void,  as  asserted  by  Biggins  in  his  mo- 
tion, there  was  no  foundation  for  the  gar- 
nishment, and  It  was  properly  quashed.  Had 
the  district  court  of  Custer  county  authority 
In  a  proceeding  under  section  473  of  the  Code 
to  revive  the  dormant  Judgment  transferred 
from  the  district  court  of  Nemaha  county? 
PlalntifC  answers  this  question  in  the  afflrma- 
tire,  and  cites  the  following  section  of  the 
Code  to  sustain  bis  position:  "That  the 
transcript  of  a  Judgment  of  any  district  court 
in  this  state  may  be  filed  in  the  office  of  the 
clerk  of  the  district  court  in  any  county,  and 
such  transcript  shall  be  a  lien  on  the  proper- 
ty of  the  debtor  In  any  county  in  which  such 
transcript  is  filed,  in  like  manner  as  In  the 
county  where  such  Judgment  was  rendered, 
and  execution  may  be  issued .  on  Judgment 
obtained  by  such  transcript,  as  on  the  origi- 
nal Judgment ;  Provided,  that  such  transcript 
shall  at  all  times  be  effected  and  be  In  the 
same  plight  as  the  original  Judgment"  Code, 
I  429a. 

The  purpose  of  the  transfer  being  to  en- 
force the  original  Judgment,  plaintiff  argues 
that  the  district  court  of  Caster  county  as  a 
preliminary  step  had  authority  to  make  an 
order  of  revivor.  Some  Pennsylvania  dech- 
sions  were  mentioned  In  the  oral  argument  In 
support  of  this  doctrine,  but  an  investigation 
will  show  that  a  statute  of  that  state  pet^ 
mitted  the  removal  of  a  Judgment  from  one 
common  pleas  court  to  another  t>y  exemplifi- 
cation, and  that  the  statutory  transfer  In- 
cluded the  power  of  revivor.  Nelson  v.  Quf- 
fey,  131  Pa.  273,  18  Atl.  1073;  Enauss's  Ap- 
peal, 49  Pa.  419 ;  Kendlg  v.  North,  7  Del.  Co. 
(Pa.)  674.  The  Nebraska  statute  ujran  which 
plaintiff  relies  authorizes  an  execution,  but 
not  a  revivor.  It  does  not  make  the  Juris- 
diction of  the  district  court  of  Custer  coun- 
ty the  same  as  that  of  the  district  court  of 
Nemaha  county.  It  leaves  the  court  of  origi- 
nal Jurisdiction  in  complete  control  of  its 
own  judgment.  That  court  has  power  to  re- 
new the  Hen,  to  cancel  It  for  any  lawful  rea- 
son, to  make  orders  respecting  parties,  to 
direct  satisfaction  in  case  of  payment,  and 
to  perform  any  other  judicial  act  essential 
to  the  rights  of  any  party  to  the  suit  Orders 
made  In  the  exercise  of  such  power  affect 
transcripts  In  other  Jurisdictions  In  the  man- 
ner described  In  the  proviso  to  section  429a 
of  the  Code.  The  jurisdiction  of  the  court 
to  which  the  judgment  is  transferred  is  not 
the  same  as  that  of  the  court  rendering  the 


Judgment  unless  made  so  by  statute.  Tb» 
powers  are  derived  from  different  sources. 
The  court  of  original  Jurisdiction  adjudicates 
the  matters  In  controversy,  and  gives  vitality 
to  the  obligations  or  liabilities  involved  in 
the  litigation.  In  rendering  and  in  enforcing 
its  Judgment  It  acts  under  general  authority 
conferred  by  the  Constitution  and  statutes. 
When  the  transcript  enters  another  Jurisdic- 
tion, the  office  of  ibe  transfer  is  the  enforce- 
ment of  the  Judgment  and  in  the  new  spher» 
of  operation  the  statute  makes  provision  for- 
a  lien  and  for  execution,  but  not  for  a  re- 
vivor. The  statute  authorizing  the  transfer 
confers  the  power  under  which  the  court 
acts  in  enforcing  the  judgment  in  new  ter- 
ritory. In  this  state  the  statutory  method 
of  reviving  Judgments  supersedes  the  writ  or 
scire  facias.  Broadwater  v.  Foxworthy,  57 
Neb.  406,  77  N.  W.  1103.  The  general  rule- 
is  that  a  scire  facias  to  revive  a  Judgment 
Is  a  continuation  of  a  former  suit,  and  that 
the  venue  must  be  laid  in  the  county  In 
which  the  action  was  originally  commenced. 
McGIll  T.  Perrigo,  9  Johns.  (N.  Y.)  259 ;  Fun- 
derburk  v.  Smith,  74  Oa.  K15 ;  Gibson  t.  Da- 
vis, 22  Tt  374 ;  Griffin  v.  Spence,  69  Ala.  393 ; 
Masterson  v.  Cundiff,  58  Tex.  472;  Wilson 
V.  Tieman,  3  Mo.  303 ;  Tlndall  v.  Carson,  16- 
N.  J.  Law,  94;  Boylan  v.  Anderson,  8  N.  J. 
Law,  629.  Plaintiff's  forum  for  the  pur- 
poses of  revival  is  the  district  court  of  Ne- 
maha county,  and  not  the  district  court  or 
Custer  county.  Cames  v.  Crandall,  4  Iowa, 
151 ;  Thompson  ▼.  Parker,  83  Ind.  96 ;  Conner 
V.  Neff,  2  Ind.  App.  364,  27  N.  B.  645.  Hav- 
ing exceeded  its  powers  in  attempting  to  re- 
vive the  transferred  Judgment  as  against 
Higgins,  the  order  of  revivor  rendered  by  the- 
district  court  of  Custer  county  is  void.  Berk- 
ley V.  TooUe,  62  Kan.  701,  64  Pac.  620.  This 
conclusion  does  not  confiict  with  the  mle  that 
a  Judgment  rendered  by  a  Justice  of  the 
peace  may  be  transferred  to  the  district 
court,  and  there  revived.  Purer  v.  Holmes, 
73  Neft).  393,  102  N.  W.  764.  The  disUnctlon 
is  apparent  A  Judgment  of  a  justice  of  the 
peace  can  only  be  made  a  Hen  on  realty  after- 
a  transcript  has  been  filed  in  the  district 
court  A  revival  by  the  inferior  tribunal 
would  not  create  such  a  lien.  The  territorial 
Jurisdiction  of  both  courts  is  the  same.  The 
district  court  In  civil  matters  may  exercise 
practlcaUy  all  the  Jurisdiction  of  a  justice  of 
the  peace,  and,  in  addition,  has  the  power  of 
review.  The  statute  which  authorizes  th»- 
fillng  of  a  transcript  of  a  Judgment  of  a  jus- 
tice of  the  peace  in  the  district  court  con- 
templates a  lien  having  the  same  effect  "as 
if  the  Judgment  had  be«i  rendered  in  the  dis- 
trict court"  Code,  |  662.  PlalntUTs  order  of 
revivor  was  void.  In  declining  to  Impound 
property  in  the  hands  of  the  garnishees  to 
satisfy  a  dormant  judgment  the  trial  court 
made  no  mistake. 
Affirmed. 

DEAN,  J.,  having  been  of  eoonad,  did  not: 

sit 


Digitized  by  VjOOQ  l€ 


Neb.) 


UoOABE  T.  STATE. 


893 


tfcCABB  y.  STATE.    (No.  16,190.) 
(Supreme  Court  of  Nebraska.     Oct  22.  1909.) 
iRTOZtOATINO    LiQUOSS    (|    226*)  —  Cbikinai. 

Law  (i  662*)— IixaoAi,  Salb— EnoKiros. 
In  a  pTosecution  in  the  district  coart  for 
selling  and  for  keeping  for  sale  intoxicating  liq- 
nors  in  yiolation  of  law,  a  county  judge's  seardi 
warrant  nuder  wtiicli  defendant's  premises  were 
searched  and  lianors  seized  is  not  admissible  as 
independent  eTiaence,  where  it  recites  that  com- 
plainant, who  was  not  a  witness  at  the  trial, 
stated  nnder  oath  that  defendant  was  guilty  ot 
the  offenses  charged  In  the  information. 

[BJd.  Note. — For  other  cases,  see  Intoxicating 
I^iqaors,  Oent  Dig.  {  284;  Dec  Dig.  <  226:* 
Criminal  Law,  Cent.  Dig.  U  1588-1548;  Dec. 
Dig.  i  662.*] 

(Syllabus  by  the  Court) 

Error  to  District  Court,  Uncoln  Connty; 
Grimes,  Judge. 

Nicholas  McCabe  was  conricted  of  an  il- 
legal sale  of  liquors,  and  brings  error.  Re- 
versed. 

J.  O.  Beeler  and  Wilcox  &  Halllgan,  for 
plaintiff  in  error.  W.  T.  Thompson  and  Geo. 
W.  Ayres,  for  the  State. 

ROSE,  J.  Nicholas  McCabe,  a  practicing 
physician  who  owned  a  drug  store  at  North 
Platte,  was  prosecuted  in  the  district  court 
of  Lincoln  county  for  selling  and  for  keep- 
ing for  sale  intoxicating  liquors  in  violation 
of  law.  The  information  contained  eight 
counts.  A  Jury  found  him  guilty  on  the  fifth 
count  of  selling  a  bottle  of  whisky  to  Peter 
Klinefelter  March  17,  1908;  on  the  sixth 
count  of  selling  a  bottle  of  brandy  to  Peter 
Klinefelter  March  21,  1908;  on  the  seventh 
count  of  keeping  brandy,  gin,  and  whisky 
for  sale  March  23,  1908,  without  a  license  or 
physician's  or  druggist's  permit;  on  the 
eighth  count  of  keeping  port  wine,  angelica, 
and  sherry  wine  for  sale  without  a  license 
or  physician's  or  druggist's  permit.  For 
each  of  the  offenses  described  defendant  was 
fined  $100,  or  $4<X>  in  all,  and  now  presents 
the  record  of  his  conviction  for  review  by 
petition  in  error. 

By  virtue  of  a  writ  issued  by  the  county 
Judge  of  Lincoln  county  the  sheriff  searched 
defendant's  drug  store  March  23,  1908,  and 
the  same  day  returned  the  writ  with  an 
Indorsement  showing  he  bad  found  and 
seized  whisky,  i>ort  wine,  gin,  angelica,  sher- 
ry, and  brandy.  At  the  trial  of  the  present 
case  the  search  warrant  and  the  sheriff's  re- 
turn were  admitted  in  evidence  over  the  ob- 
jection of  defendant,  and  this  ruling  of  the 
trial  court  is  assailed  as  a  prejudicial  error, 
for  which  the  conviction  should  be  reversed. 
These  documents  wae  read  to  the  Jury  and 
appear  in  the  record  as  independent  evidence 
of  defendant's  guilt  in  violation  of  a  rule  an- 
nounced in  two  former  decisions.  Following 
Nelson  v.  State,  53  Neb.  790,  74  N.  W.  279,  It 
was  held:  "In  a  prosecution  under  section 
ao,  c.  60,  Comp.  St  1906,  for  unlawfully 
keeping  intoxicating  liquors  with  the  Intent 


to  sell  the  same  without  a  license,  It  Is  preju- 
dicial error  to  permit  the  introduction  In 
evidence^  over  objection,  of  the  search  war- 
rant under  which  the  premises  of  the  de- 
fendant were  searched  and  the  liquors  seiz- 
ed." Weinandt  v.  States  80  Neb.  161,  113 
N.  W.  1040. 

In  the  present  case  defendant  was  convict- 
ed on  two  counts  for  violating  the  section 
cited.  There  is  therefore  no  escape  from 
the  conclusion  that  under  the  rule  quoted 
the  search  warrant  was  not  admissible  as 
Independent  proof  that  defendant  kept  liq- 
uors for  sale  in  violation  of  law,  as  charged 
in  the  information.  The  error  also  extends 
to  the  convictions  for  unlawful  sales,  since 
those  infractions  of  the  statute  are  recited 
in  the  search  warrant  as  being  supported^ 
by  the  oath  of  the  complainant  In  the  coun- 
ty court  The  Attorney  General,  however, 
has  made  an  earnest  appeal  for  an  afiBrm- 
ance  of  the  judgment  on  the  ground  that  the 
error  Is  not  prejudicial.  The  search  war- 
rant shows  that  in  the  county  court  David 
B.  Loudan  on  oath  charged  defendant  with 
the  offenses  of  which  he  was  convicted  In 
the  district  court  in  this  case.  The  com- 
plainant's statements  as  to  the  sales  were 
made  in  positive  terms.  In  addition,  the 
process  Indicates  on  its  face  that  the  county 
Judge,  under  his  hand  and  seal,  gave  credence 
to  the  .charges  by  directing  the  sheriff  to 
search  defendant's  drug  store  for  Intoxica- 
ting liquors.  The  finding  of  liquors  strength- 
ened complainant's  charges.  With  the  ex- 
ception of  the  search  warrant,  the  convic- 
tions on  the  counts  relating  to  sales  rest 
alone  on  testimony  that  the  liquors  were 
sold  by  an  employe  who  managed  defend- 
ant's drug  store.  The  only  proof  that  de- 
fendant personally  made  the  sales  is  found 
in  the  search  warrant  By  means  of  the 
writ  erroneously  admitted  in  evidence,  Lou- 
dan's  statement  und^  oath  that  defendant 
committed  the  offenses  charged  reached  the 
Jury.  Loudan  did  not  testify  orally  as  a 
witness,  and  there  was  no  opportunity  for 
cross-examination.  Defendant  was  not  per- 
mitted to  meet  him  face  to  face  as  a  witness, 
a  privilege  guaranteed  by  section  11  of  the 
Bill  of  Rights.  There  was  no  Instruction 
by  the  court  directing  the  Jury  to  disregard 
the  search  warrant  as  Independrat  evidence. 
For  anything  that  appears  In  the  record 
complainant's  sworn  statements  In  a  differ- 
ent proceeding  In  another  court  may  have 
appealed  to  the  Jury  as  convincing  proof  of 
defendant's  guilt  Under  the  circumstances 
stated  it  cannot  be  definitely  determined 
that  the  error  was  without  prejudice.  There 
was  also  error  In  admitting  copies  of  freight 
bills  describing  packages  of  liquors  without 
a  proper  foundation  for  their  Introduction. 

The  Judgment  Is  therefore  reversed,  and 
the  cause  remanded  for  further  proceedings. 

Reversed. 


•For  athar  cmm  m«  same  topio  and  aactlon  NUMBBB  la  Dy.  *  Am.  Dlft.  IMT  t«  data,  *  Raportar  Indaxaa 


Digitized  by  VjOOQ  l€ 


894 


122  NOBTHWBSTBBN  KBPOBTBB. 


(Iowa 


HALL  T.  GHIGAOO,  B.  &  Q.  BT.  CO. 
(Supreme  Court  of  Iowa.    Oct  22,  1900.) 

1.  Appeai,  and  Ebrob  (J  1004*)  —  Rkvibw  — 
Vbbdict  —  Pbbsorai.  injubiks  —  Bzckssivk 
OB  Inadequate  Damaoes. 

Damages  for  a  personal  injnry  tnTolving 
physical  and  mental  suffering  or  impairment  of 
health,  stiength,  or  earning  capacity,  whether 
such  conditions  are  permanent  or  temporary, 
are  based  on  the  theory  of  compensation,  and 
the  amount  assessed  by  the  jury  will  not  be 
disturbed  because  excessive  or  inadequate,  un- 
less a  just  and  intelligent  mind  is  forced  to  the 
conclusion  that  the  jury  has  either  failed  to 
comprehend  the  case  or  has  been  inSuenced  by 
passion  or  prejudice. 

(Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  i  3944 ;   Dec.  Dig.  |  10O4.»] 

2.  Appeal  ahd  Ebbob  (J  832*)  —  Review — 

CONBIDEBATIOK    OF    CaBB— AUODRT    Or    BB- 
COVEBT. 

The  court,  on  appeal  from  a  judgment  in  a 
personal  injury  action  because  inadequate,  must 
give  defendant  the  benefit  of  the  most  favorable 
inferences  to  be  drawn  from  the  record. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  3782 ;   Dec  Dig.  )  832.*] 

3.  Damages  (J  132*)— Pbbsorai.  Ih3VNeb~ 
Inadequate  Damages. 

A  man  62  years  old,  engaged  in  important 
business  enterprises,  was  injund  so  that  some 
of  bis  ribs  were  severed  so  that  the  ends  of 
some  of  the  fragments  were  moved  out  of  their 
proper  alignment  and  overlapped,  in  which  posi- 
tion they  became  fixed.  There  were  indications 
that  a  lung  had  been  punctured  by  one  of  the 
broken  bones,  and  that  the  breast  bone  and 
shoulder  _  blade  were  fractured.  He  suffered 
great  pain,  and  required  much  attention  and 
care.  He  was  confined  to  his  hotel  for  31  days. 
He  did  not  entirely  relinquish  the  management 
of  his  business.  Defendant  showed  that  plain- 
tiff recovered  in  about  a  month  and  enjoyed  a 
substantially  normal  degree  of  health,  strength, 
and  business  capacity.  Held,  that  a  verdict  for 
$3,000,  approTed  by  the  trial  court,  would  not 
be  disturbed  on  appeal  because  inadequate. 

[Ed.  Note. — For  other  cases,  see  Damages, 
Cent.  Dig.  H  372-385,  396;   Dec.  Dig.  i  132.»] 

4.  t'biai.  (I  2J)6»)— INBTBUCTIONB— "Pain"— 
Bequests. 

Where  plaintiff  demanded  compensation  for 
physical  and  mental  pain,  and  the  court  charge 
ed  that  plaintiff  demanded  compensation  for 
physical  and  mental  pain,  an  instruction  direct- 
ing the  jury  in  assessing  the  damages  to  con- 
sider the  personal  injury  suffered,  the  pain  al- 
ready suffered,  or  which  he  might  suffer  in  the 
future,  etc.,  was  not  objectionable  as  restrict- 
ing the  damages  to  physical  pain  only,  in  the 
absence  of  any  requested  instruction  on  the  sub- 
ject, for  the  word  "pain"  was  broad  enough  to 
include  both  physical  and  mental  suffering. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  I  6S9;    Dec.  Dig.  |  256.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  6,  p.  615a] 

5.  Damages  ({  216*)  —  Pebsonal  Injubies  — 

INSTBDCTIONS— "INJHBT    RECEIVED." 

An  instruction  that  the  jury  in  ascertahaing 
the  damages  should  give  plaintiff  such  amount 
as  would  compensate  him  for  "the  injury  re- 
ceived," and  could  consider  the  personal  injury 
suffered,  the  pain  suffered,  or  which  he  might 
suffer  in  the  future,  the  expenses  for  medical  at- 
tendance, and  that  if  prior  to  the  injury  he 
earned  his  living  in  part  by  manual  labor  and 
the  injury,  in  whole  or  in  part,  incapacitated 
him  from  performing  manual  labor  and  earning 


Us  living,  such  fact  should  be  considered,  was 
not  objectionable  as  failing  to  allow  compensa- 
tion for  loss  of  time  and  for  the  impairment  of 
capacity  to  earn  money  in  his  business,  and  as 
permitting  the  Jury  to  assess  compensation  for 
permanent  injury  only,  and  not  for  temporary 
injury,  for  the  expression  "injury  received'"  fair- 
ly comprehended   all   injuries  sustained. 

[Ed.  Note.— For  other  cases,  see  Damages, 
Cent  Dig.  I  648;    Dec.  Dig.  |  216.*] 

Appeal  from  District  Court,  Union  Coun- 
ty;   H.  K.  Evans,  Judge. 

Action  to  recover  damages  for  personal  in- 
jury. Tliere  was  a  Judgment  for  plaintiiT 
for  13,000,  and  he  appeals.    Affirmed. 

Maxwell  &  Maxwell,  W.  B.  Miller,  and 
Matthew  Gerig  for  appellant  W.  D.  Eaton, 
D.  W.  Hlgbee,  M.  L.  Temple,  P.  a  Winter, 
and  SulliTan  &  Lee,  for  appellee. 

WEAVEB,  J.  Per  the  purposi>!<  of  Otia 
appeal  the  negligence  of  the  defendant,  the 
resulting  injury  to  plaintiff,  and  his  right  to 
recover  therefor  may  be  conceded.  His  con- 
tention is  that  the  amount  awarded  Iiim  by 
the  Jury  is  grossly  inadequate,  and  that  er- 
rors prejudicial  to  his  case  occurred  upon 
the  trial,  entitling  him  to  have  the  verdict 
set  aside  and  a  new  trial  awarded. 

That  plaintiff,  who  was  a  man  62  years 
of  age  and  successfully  engaged  in  busi- 
ness enterprises  of  Importance,  was  serious- 
ly injured  is  not  denied.  His  injury  was  oc- 
casioned by  being  caught  and  crushed  be- 
tween a  moving  car  and  a  platform  or  other 
structure  standing  close  to  the  railway  track. 
His  ribs  on  the  left  side,  from  the  second 
to  the  ninth,  inclusive,  were  so  broken  and 
severed  that  the  ends  of  some  of  the  frag- 
ments were  dropped  or  moved  out  of  their 
proper  alignment  and  overlapped,  in  which 
abnormal  position  they  have  become  ^xed. 
There  were  indications  that  the  lung  had 
been  punctured  by  one  of  the  broken  bones; 
that  the  breast  bone  and  shoulder  blade  were 
fractured,  and  that  he  was  in  general  bad- 
ly crushed  and  bruised.  He  suffered  great 
pain,  and  required  much  attention  and  care 
from  attendant  surgeons,  nurses,  and  mem- 
bers of  his  family.  The  injury  was  received 
at  Pepin,  Wis.,  on  March  3,  1906,  and  plain- 
tiff remained  there  confined  to  bis  hotel  un- 
til April  4,  1906,  when  be  returned  to  his 
home  at  Creston,  Iowa.  During  this  period 
of  31  days  he  was  not  in  bed  much  of  the 
time,  as  he  could  not  rest  in  a  recumbent  po- 
sition on  accotmt  of  the  character  of  his  In- 
juries. After  a  few  days  he  could  leave  bis 
chair  and  walk  about  with  the  assistance  of 
his  attendants.  He  did  not  entirely  relin- 
quish the  control  and  management  of  his 
business,  and  before  leaving  Pepin  employ- 
ed a  stenographer,  through  whom  he  con- 
ducted his  correspondence.  The  question  as 
to  the  extent  of  his  permanent  injury  and 
the  impairment  of  his  capacity  for  labor  and 
business,  as  well  as  the  pain  and  suffering 


•For  otliar  ca««s  ■••  umt  topic  and  ■sctioa  NUMBER  lo  Deo.  *  Am.  Dies.  INT  to  data,  *  Reporter  Indue* 


Digitized  by  VjOOQ  l€ 


Iowa) 


HALL  T.  CHICAGO,  B.  &  Q.  RY.  CO. 


895 


to  which  he  Is  still  subject,  is  a  matter  upon 
which  there  Is  no  agreement  of  the  parties 
or  concession  by  the  defendant  It  Is  the 
theory  of  the  latter  that  soon  after  the  re- 
turn of  the  plaintiff  from  Fepln  he  recov- 
ered, and  still  enjoys,  a  substantially  normal 
degree  of  health,  strength,  and  business  ca- 
pacity, and  that  the  present  suffering  and 
inconvenience  of  which  he  testifies  are  large- 
ly simulated.  In  support  of  this  theory 
there  was  some  evidence,  both  expert  and 
nonexpert. 

It  will  be  seen  from  the  foregoing  state- 
ment that  the  ultimate  material  question 
on  which  the  Jury  was  called  to  pass  was 
the  amount  of  plaintiff's  recovery, 'and  upon 
this  appeal  we  have  only  to  inquire,  first, 
whether  the  damages  so  awarded  are  so 
manifestly  inadequate  that  the  ends  of  Jus- 
tice require  a  new  trial;  and,  second,  if 
such  manifest  Inadequacy  does  not  appear, 
then  we  have  further  to  consider  whether 
error  prejudicial  to  the  plaintiff  Is  shown  In 
the  rulings  or  instructions  of  the  court. 

1.  Damages  for  personal  Injury  Involving 
physical  and  mental  suffering  or  Impairment 
of  health,  strength,  or  earning  capacity, 
whether  such  conditions  be  of  permanent  or 
temporary  character,  are  based  upon  the  the- 
ory of  compensation,  and  as  there  Is  not,  and 
cannot  well  be,  any  fixed,  definite,  or  unvary- 
ing standard 'by  which  such  compensation 
may  be  measured  with  mathematical  preci- 
sion, the  amount  to  be  assessed  In  any  giv- 
en case  Is  a  matter  for  the  Jury  alone  to  de- 
termine In  the  exercise  of  Its  sound  and 
Impartial  discretion.  True,  the  Jury  is  not 
wholly  uncontrolled,  and  the  verdict  return- 
ed may  under  some  circumstances  be  set 
aside  because  of  Its  palpable  injustice.  But 
the  mere  fact  that  the  amount  assessed  is 
more  or  less  than  the  court  would  have  been 
disposed  to  allow  were  the  case  submitted 
without  a  Jury  is  not  controlling,  and  will 
not  Justify  the  setting  aside  of  the  verdict. 
To  call  for  such  action  the  amount  allowed 
must  be  so  great  and  excessive,  or  so  small 
and  inadequate,  that  the  Just  and,  intelligent 
mind  Is  forced  to  the  conclusion  that  the 
Jury  has  failed  to  comprehend  the  case  as 
submitted,  or  has  been  influenced  to  its  ver- 
dict by  passion  or  prejudice.  Palmer  v.  R. 
R.  Co.,  124  Iowa,  424,  100  N.  W.  836,  and 
cases  there  cited.  Three  thousand  dollars 
is  not  a  merely  nominal  recovery,  and  in  our 
judgment  cannot  be  said  to  be  so  manifestly 
inadequate  as  to  call  for  our  interference. 
As  has  already  been  suggested,  the  amount 
may  be  less  than  the  court  would  have  al- 
lowed bad  it  been  called  upon  to  make  the 
assessment,  and  a  verdict  for  a  much  larger 
gam  might  readily  have  been  sustained  as 
not  excessive,  yet  when  we  have  given  the 
defendant  the  benefit  of  the  most  favorable 
inferences  to  be  drawn  from  the  record  (as 
we  are  bonnd  to  do  in  considering  this  phase 
of  the.  case),  it  cannot  be  said  that  the  sum 
actually  awarded  U  so  out  of  proportion  to 


the  injury  soffered  as  to  shock  the  conscience 
and  point  inevitably  to  the  conclusion  that 
the  Jury  were  misled  by  ignorance,  passion, 
or  prejudice.  This  is  especially  true  in  view 
of  the  fact  that  the  learned  trial  court 
which  saw  the  plaintiff  and  the  witnesses 
produced  on  the  trial  and  heard  their  testi- 
mony refused  to  set  aside  the  verdict  Had 
It  sustained  the  motion  and  ordered  a  new 
trial  because  of  the  Inadequacy  of  the  ver- 
dict, the  case  would  wear  a  different  aspect 
Ward  V.  Light  Co.,  132  Iowa,  578,  108  N.  W. 
323;  Tathwell  v.  Cedar  Rapids,  122  Iowa, 
50,  97  N.  W'.  96.  As  bearing  upon  the  gen- 
eral subject  here  discussed,  see  Mfg.  Co.  v. 
Smith,  0  Pick.  (Mass.)  12;  McGowan  ▼.  R. 
a  Co.,  20  R.  I.  264,  38  AO.  497;  McDermott 
V.  R.  R.  Co.,  85  Wis.  102,  55  N.  W.  179; 
Robinson  v.  Waupaca,  77  Wis.  544,  46  N,  W. 
809. 

2.  In  his  petition  the  plaintiff  claims  dam- 
ages among  other  things,  for  the  physical 
and  mental  suffering  resulting  to  him  from 
his  Injuries.  In  Its  instruction  upon  the 
measure  of  recovery  the  court  used  the  fol- 
lowing language:  "In  ascertaining  the  plain- 
tiff's damages,  you  should  give  him  such 
amount  as  would  fairly  and  reasonably  com- 
pensate him  for  the  injury  received.  And 
you  have  a  right  to  take  into  consideration 
the  personal  injury  suffered,  the  pain  al- 
ready suffered,  or  which  yon  find  he  may  suf- 
fer in  the  future  in'  consequence  of  such  In- 
Jury,  his  expense  incurred  for  nursing,  med- 
ical attendance,  and  medicine,  and  if  the 
Jury  find  from  the  evidence  that  the  Injury 
of  plaintiff  is  permanent,  that  prior  to  the 
injury  he  was  capable  of  earning,  and  did 
earn,  his  living  in  part  by  manual  labor,  and 
that  said  Injury  had  In  whole  or  In  part  In- 
capacitated him  from  performing  manual 
labor,  and  earning  his  living,  then  you  may 
take  such  facts  into  consideration  In  de- 
termining plaintiff's  damages."  This  in- 
struction Is  claimed  to  be  erroneous,  to  the 
prejudice  of  plaintiff,  because  the  Jury  was 
thereby  restricted  in  its  allowance  of  dam- 
ages for  pain  and  suffering  to  such  as  was 
of  a  physical  character  only.  While  this 
paragraph  of  tbe  charge  might  well  have 
been  more  explicit  In  its  statement  in  re- 
spect to  the  matter  complained  of,  we  are 
disposed  to  hold  that  under  the  circum- 
stances of  this  case  it  contains  no  error 
calling  for  a  reversal.  The  Jury  Is  told 
that  the  plaintiff  Is  entitled  to  such  amount 
as  would  fairly  and  reasonably  compensate 
him  for  the  injtuy  received.  This  is,  of 
course,  a  fair  statement  of  the  general  le- 
gal principle  by  which  the  assessment  of 
damages  was  to  be  governed.  The  court 
bad  already  told  the  Jury  that  plaintiff  was 
demanding  compensation  for  his  pain  and 
suffering,  both  physical  and  mental.  Evi- 
dence bearing  upon  both  phases  bad  been 
offered  and  admitted,  and  when  the  court 
said  that  plaintiff  would  be  entitled  to  com- 
pensation for  "the  pain  already  suffered,  or 


Digitized  by  VjOOQ  l€ 


896 


122  NORTHWESTERN  REPORTER. 


(low* 


which  yon  find  he  may  suffer  In  the  future 
in  consequence  of  Bnch  injury,"  It  is  hard- 
ly reasonable  to  believe  that  the  Jury  un- 
derstood this  direction  to  have  reference  only 
to  physical  pain  as  distinguished  from  men- 
tal suffering.  To  say  the  least,  the  word 
"pain"  as  used  by  the  court  is  broad  enough 
to  include  both  physical  and  mental  suffer- 
ing; and,  If  plaintiff  believed  that  the  at- 
tention of  the  jury  should  have  been  special- 
ly directed  to  the  latter  aspect  of  his  claim, 
It  was  open  to  him  to  request  an  instruction 
In  that  form.  No  request  was  made,  and  it 
is  unnecessary  for  us  to  say  what  would 
have  been  onr  holding  if  an  instruction  such 
as  plaintiff  now  contends  should  have  been 
given,  had  been  asked  and  refused. 

3.  Further  objection  is  made  to  the  same 
instruction  because  it  fails  to  state  that 
plaintiff  was  entitled  to  recover  compensa- 
tion for  loss  of  time,  and  for  the  impairment 
of  bis  capacity  to  earn  money  in  his  busi- 
ness. It  Is  also  objected  that  the  effect  of 
the  Instruction  given  is  to  permit  the  jury 
to  assess  compensation  for  plaintifTs  per- 
manent injury  only,  and  not  for  all  bis  in- 
juries both  permanent  and  temporary,  and 
by  omitting  any  reference  to  his  alleged  loss 
of  earnings  and  profits  as  the  manager  and 
superintendent  of  his  business  affahrs  the 
Jury  was  in  effect  limited  to  awarding  him 
compensation  for  the  injury  to  his  capacity 
to  earn  money  by  manual  labor.  As  already 
suggested  In  the  preceding  paragraph  of 
this  opinion,  the  instruction  is  not  as  full 
and  explicit  as  it  might  well  have  been  made, 
and  doubtless  would  have  been  made  had 
either  party  requested  it,  but  when  fairly 
read  with  reasonable  attention  to  the  whole 
record,  we  think  it  not  open  to  the  assign- 
ment of  error  which  coimsel  make  against 
It  The  court  very  evidently  meant  to  em- 
body the  governing  rule  of  the  case  In  the 
general  direction  already  quoted  that  plain- 
tiff should  be  given  reasonable  compensation 
"for  the  Injury  received."  The  expression 
"Injury  received"  is  not  limited,  but  fairly 
comprehends  all  injury  sustained  by  the 
plaintiff  on  account  of  the  defendant's  neg- 
ligence. The  jury  is  then  told  that  in  mak- 
ing this  assessment  It  has  the  right  to  "take 
Into  consideration"  certain  named  facts  and 
circumstances  as  developed  by  the  testi- 
mony. It  Is  evident  that  the  court  refers 
to  these  specific  phases  of  the  piaintUTs 
case  by  way  of  Illustration  and  suggestion 
as  to  the  nature  of  the  inquiry  to  be  made, 
and  not  as  an  exhaustive  list  of  all  the  mat- 
ters which  the  Jury  could  properly  consider 
In  reaching  its  verdict  It  would  be  an  im- 
peachment of  the  intelligence  of  the  jury  to 
concede  the  possibility  of  its  construing  the 
court's  instruction  into  a  direction  which 
makes  the  plaintiff's  right  of  recovery  de- 
pendent upon  the  permanent  character  of 
his  injury,  or  limits  such  recovery  to  dam- 


ages for  the  impairment  or  loss  of  bis  ca- 
pacity to  earn  money  by  manual  labor.  Bee 
Greenway  v.  Taylor  County  (decided  at  the 
present  term)  122  N.  W.  943.  Upon  the 
whole  record  the  case  appears  to  have  been 
fairly  tried,  and  no  reversible  error  has 
been  shown. 

The  Judgment  of  the  district  court  Is  there- 
fore affirmed. 


FISK  V.   CITI  OF  KEOBOIK  et  al. 
(Supreme  Court  of  Iowa.     Oct  21,  1900.) 

1.  Judgment  (§  6S8*)— Res  Judicata— Dis- 
KISSAL  Wtthout  Pbktudiok. 

Where,  before  any  judgment  waa  entered 
after  sustaining  a  demurrer  to  the  ^titlon,  the 
action  was  dismissed  without  prejudice,  there 
was  no  adjudication  binding  on  either  party. 

[Ed.  Note.— For  other  cases,  see  Judgqien^ 
Cent.  Dig.  i  1169;   Dec.  Dig.  |  65a •] 

2.  Election  or  Reukdies  (|  12*)— Publio  Iu< 

PBOVEMEKTS  —  ENFOBCEMENT      OF      ASSESS- 
IIXHTS. 

A  contractor  who  sued  to  foreclose  street 
impTovement  assessments  against  abutting  prop- 
erts',  and  who,  on  the  sustaining  of  a  demurrer 
to   the   petition,   dismissed   the   action   without 

Erejudice,  did  not  thereby  elect  his  remedy,  and 
e  could  thereafter  have  the  abutting  property 
sold  for  nonpayment  of  the  assessments. 

[Ed.  Note.— For  other  cases,  see  Election  <ft 
Remedies,  Cent  Dig.  i  15 ;    Dec,  Dig.  f  12.*] 

S.  MUWICIPAL  COBFOBATIONS  (I  677*)— PUB- 
LIC IMPBOVEMENTS— SPBOIAI.  ASBESBlfXItTfr^ 

Enfobcement— Laokes. 

Mere  delay  in  issuing  certificates  of  pur- 
chase at  a  sale  for  the  nonpayment  of  special 
assessments  for  a  street  improvement  will  not 
invalidate  the  sale;  no  prejudice  to  the  owner 
of  the  land  being  shown. 

[Ed.  Note.— For  other  cases,  see  Mnnidiwl 
Corporations,  Cent  Dig.  |  1290;  Dec.  Dig.  | 
577.*] 

4.  Municipal  Cobpobations  (§  564*)- Spk- 

CIAL    ASBESSHZNTB— ENFOBCEUXNT— LiHUIA- 
TIONS. 

Code  1897,  i  1448,  Ibniting  the  time  within 
which  to  sue  for  the  recovery  of  real  estate  sold 
for  nonpayment  of  taxes  applies  only  to  actions 
to  recover  property  sold  for  taxes,  and  does  not 
bar  the  right  to  sell  land  for  the  nonpayment  of 
special  assessments  for  a  street  improvement 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  |  1273;  Dec.  Dig.  f 
564.*] 

5.  Ldotatiok  of  Actions  (i  88*)— liDfiTA- 
Tiows  Applioablb— Natube  of  Action- Bn- 
fobobment  of  Spxcial  AssBSSianrs. 

Under  Acts  6th  Oen.  Assem.  Extra  Sess. 
18S6,  p.  49,  c.  17,  {  22,  Acts  28d  Oen.  Assem. 
1890,  pp.  ^,  24,  c.  14^  H  11.  12,  and  Acts  25th 
Gen.  Assem.  1894,  pp.  21,  22,  c.  7,  H  11.  12, 
relating  to  assessments  for  street  improvements 
and  providing  that  the  assessments  shall  be  a 
lien  on  the  proper^  abutting  on  the  street  and 
shall  remain  a  lien  until  fully  paid,  etc.,  liens 
for  assessments  are  perpetual,  and  exist  until 
the  assessments  are  paid,  and  as  a  sale  for  de- 
linquent assessments  is  not  an  action  or  suit  tiM 
general  statute  of  limitations  does  not  apply. 

[Ed.  Note.— For  other  casefi,  see  Umitation  of 
Actions,  Cent.  Dig.  i  187 ;    Dec.  Dig.  |  38.*] 


•For  other  cmm  sm  urns  topto  sod  ■•ctlon  NUMBBR  Li  Dm.  *  Am.  Dlfi.  1907  to  data,  *  Reporter  ladesM 


Digitized  by  VjOOQ  l€ 


Iowa) 


FISK  ▼.  CITY  OP  KEOKUK. 


897 


ft.  MuKIClPAr,  COBItOBATIORS  (|  483*)  —  SPE- 
CIAL AS8E8SUENTB— ASSESSMBNT  ROLLS— DB- 
LINQDENT  A88B88MBNT8. 

A  aale  for  a  delinqaent  special  assessment 
for  a  street  unprovement  may  not  be  cballenged 
by  the  owner  of  the  land  on  the  ground  that 
the  delinquent  assessment  was  not  bronght  for- 
ward on  the  city  tax  books  each  year  while  it 
remained  unpaid,  in  the  absence  of  a  statute 
requiring  it 

[EkI.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  I  1133;  Dec.  Dig.  I 
483.»] 

7.  MuwiciPM.  OoKPOBATioNS  (I  (507*)  — Spe- 
cial  A88E8SMBNT— JUDOUERT    DiJIEBlIININQ 

Validity— CoNCLueivENEsa. 

Where,  in  proceedings  attactcing  a  special 
assessment  for  a  street  improvement  there  was  a 
judgment  that  the  assessment  was  not  invalid, 
and  an  appeal  therefrom  was  dismissed,  the 
assessment  must  be  treated  as  valid,  and  the 
property  owner  must  be  deemed  to  owe  the  same, 
unless  the  claim  Is  barred  by  limitations. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent.  Dig.  I  1178;  Dec.  Dig.  S 
507.*] 

8.  mcnioifal  oobpobations  (i  578*)  —  spe- 
cial assessmekts  —  sales  —  invauditt  — 
Conditions  Pbeoedbnt. 

A  property  owner  cannot  attack  the  sale  of 
land  for  nonpayment  of  a  special  assessment  for 
a  street  improvement,  or  have  the  certificate 
of  purcbase  set  aside,  without  paying,  or  offer- 
ing to  pay,  the  amount  of  the  assessment,  with 
legal  interest. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1291;  Dec.  Dig.  | 
67&*] 

Appeal  from  District  Court,  Lee  County; 
H.  Bank,  Judge. 

Suit  In  equity  to  enjoin  the  Issuance  of  a 
certificate  of  tax  sale  for  certain  special  tax- 
es or  assessments  evidenced  by  two  certifi- 
cates of  assessment  Issued  by  defendant  city 
to  defendants  Cameron  &  McManus  In  the 
year  1886,  In  payment  for  certain  pavement 
laid  by  It  on  streets  abutting  plalntifTs  prop- 
erty. Plaintiff  also  asked  that  the  certifi- 
cates of  purchase  be  canceled  and  annulled, 
and  that  he  be  given  such  other  relief  as 
might  appear  equitable.  On  issues  joined  the 
trial  court  dismissed  the  petition,  and  plaln- 
tUt  appeals.    AfiQrmed. 

John  P.  Homisb,  B.  F.  Jones,  and  Bernard 
A.  Dolan,  for  appellant.  Hollingsworth  & 
Blood  and  A.  T.  Marshall,  for  appellees. 

DEEMER,  J.  The  defendant  city  is  or- 
ganized and  operating  under  a  special  char- 
ter, which  gives  It  power  to  levy  and  collect 
taxes  and  special  assessments  under  provi- 
sions applicable  to  it  alone,  or  to  It  and  to 
other  special  charter  cities.  See  Acts  2d 
Gen.  Assem.  1848-49,  p.  18,  c.  3;  Acts  4th 
Gen.  Assem.  1852-53,  p.  132,  c.  77 ;  Acts  5tb 
Gen.  Assem.  1856,  p.  42,  c.  17  (extra  session); 
Code,  i  973 ;  Acts  23d  Gen.  Assem.  1890,  p.  21, 
c  14 ;  Acts  25th  Gen.  Assem.  1894,  p.  18,  c.  7. 
In  the  year  1895  defendant  city  ordered  that 
Eleventh  street  In  said  dty,  upon  which 
plaintifTs  property  abuts,  be  paved,  guttered, 
and  curbed.    The  contract  for  doing  the  work 


was  let  to  defendants  Cameron  &  McManus, 
and  the  Improvement  was  made  during  the 
winter  of  1895-96.  On  Marcfe  2,  1896,  the 
city  assessed  the  cost  of  the  improvement 
against  abutting  property  owners,  and  Is- 
sued certificates  therefor  to  the  contractors. 
The  fact  of  the  assessment,  the  amount  there- 
of, and  the  Issuance  of  the  certificates  with 
a  statement  of  the  amount  thereof  was  enter- 
ed in  a  book  kept  by  the  city  for  that  pur- 
pose, and  known  as  the  pavement  assessment 
book.  This  book  showed  the  date  of  assess- 
ment, description  of  the  property,  name  of 
owner,  description  of  Improvement,  number 
and  amount  of  certificate  with  blanks  for  re- 
ceipt of  the  certificate  bolder,  and  for  the 
date  of  the  liquidation  of  the  assessment. 
This  book  was  one  of  the  permanent  records 
of  the  dty,  was  kept  for  years  among  Its 
books,  and  was  treated  as  one  of  the  regular 
tax  records  of  the  dty.  A  statement  of  the 
tax  was  also  entered  In  the  delinquent  tax 
book  of  the  defendant  dty.  This  book  was 
also  permanent  In  character,  bad  been  kept 
since  the  year  1880,  and  so  arranged  as  to 
show  In  consecutive  order,  by  number  of  tt)e 
blocks,  the  date  and  description  of  the  tax, 
its  amount,  and  various  other  data.  This,  as 
we  understand  It,  was  called  the  delinquent 
tax  list  In  this  book  the  assessments  In 
question  were  entered  as  of  date  March  2, 
1896,  that  It  was  for  paving,  and  so  far  as 
the  book  dlsdosed  had  not  been  paid.  In 
the  year  1896  plaintiff  commenced  suit  against 
defendant  city  and  Cameron  &  McManus  to 
enjoin  the  collection  of  the  paving  certifi- 
cates, to  have  the  assessments  canceled,  and 
for  other  relief.  Defendants  in  that  suit  de- 
murred, and  their  demurrer  was  sustained. 
Appeal  was  taken  to  this  court,  but  the  ap- 
peal was  dismissed,  and  the  cause  dismissed 
as  per  stipulation.  Thereafter,  and  on  De- 
cember 31,  1898,  plaintiff  commenced  anoth- 
er suit  against  the  same  defendants  to  en- 
join the  collection  of  the  assessment  and  to 
canc^  the  certificates,  based  upon  errors  and 
irregularities  In  the  proceedings  leading  up 
to  the  assessment.  To  this  defendants  de- 
murred, and  their  demurrer  was  sustained. 
Appeal  was  taken  to  this  court  from  a  judg- 
ment dismissing  plaintiff's  petition,  and  In 
September  of  the  year  1903  that  appeal  was 
dismissed  on  motion.  No  claim  was  made  In 
either  of  these  actions  that  the  taxes  had 
not  been  properly  entered  upon  the  books  of 
the  defendant  dty. 

In  March  of  the  year  1903  Cameron  &  Mc- 
Manus brought  an  action  in  equity  to  fore- 
close their  paving  certificates  and  the  assess- 
ments represented  thereby,  and  to  sell  the 
property  In  satisfaction  thereof.  Fisk  was, 
of  course,  made  a  defendant,  and  he  appear- 
ed and  demurred  to  the  petition.  This  de- 
murrer was  sustained,  and  thereupon  and  at 
the  same  time  plaintiffs  In  that  action  dla- 


*For  other  caiat  see  lama  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 
122  N.W.-57 


Digitized  by 


Google 


898 


122  NORTHWESTERN  RGPORXER. 


(toira 


missed  their  petition  without  prejudice. 
Thereafter  Cameron  &  McManus,  holders  of 
the  certificates,  at  the  regular  annual  city 
tax  sale  had  the  property  against  which  the 
special  taxes  had  been  levied  sold  for  these 
taxes,  and  they  became  the  purchasers  of  the 
property  at  such  sale.  Owing  to  a  misunder- 
standing between  them  and  their  attorneys 
certificates  of  purchase  did  not  issue,  and 
had  not  been  Issued  when  plaintilF  commenc- 
ed this  suit  to  enjoin  the  Issuance  of  the 
same.  While  the  suit  was  pending,  and  on 
October  16,  1906,  a  certificate  of  purciiase 
issued  to  Cameron  &  McManus  pursuant  to 
the  sale,  and  thereupon  plaintiff  amended  his 
petition,  attacking  said  certificates  for  rea- 
sons hereinafter  stated. 

The  nature  of  this  action  has  already  been 
stated,  and  plaintiff  upon  this  appeal  con- 
tends that  the  Judgment  dismissing  his  peti- 
tion should  be  reversed  for  the  reasons  (1) 
that  Cameron  &  McManus,  in  bringing  their 
suit  to  foreclose  their  assessment  certificates, 
elected  their  remedy,  and  could  not  thereaft- 
er proceed  to  collect  the  assessments  by  sale 
of  the  property  against  which  they  had  been 
levied;  (2)  that  the  Judgment  upon  the  de- 
murrer to  their  petition  In  that  action  was 
final  and  conclusive  and  determinative  of 
their  right  to  recover  the  amount  of  the  as- 
sessment in  any  form  of  action;  (3)  that 
claim  for  the  special  assessments  was  barred, 
and  that  all  rights  under  the  certificates  are 
barred  by  statute,  or  by  their  laches,  in  not 
proceeding  to  enforce  the  same;  (4)  that  the 
special  taxes  were  not  carried  forward  on 
the  tax  books  of  the  city  each  year  after  the 
taxes  became  delinquent;  and  (5)  that  the 
tax  sale  of  1903  was  never  completed,  and  as 
no  certificate  of  sale  was  demanded  until  the 
year  1906,  this  amounted  to  an  abandonment 
of  the  sale.  On  the  other  hand,  appellees 
insist  (1)  that  plaintiff  is  not  enUtled  to  the 
relief  demanded  because  he  has  not  offered 
to  pay  the  amount  of  the  assessment  against 
him  which  was  adjudged  to  be  legal  and  ef- 
fective; and  (2)  that  all  matters  regarding 
the  validity  of  the  assessment,  or  the  regu- 
larity of  the  entries  thereof  upon  the  books 
of  the  defendant  city,  have  been  adjudicated 
adversely  to  plaintiff  in  the  proceedings  insti- 
tuted by  him.  They  also  deny  most,  if  not 
all,  of  the  propositions  made  by  plaintiff  in 
support  of  his  claim  for  a  reversal.  Whilst 
It  may  not  be  necessary  to  pass  upon  all  the 
questions  Involved,  we  shall  consider  those 
which  seem  to  be  relevant  and  material,  al- 
though not  perhaps  in  the  order  heretofore 
stated. 

It  is  manifest  that  there  was  no  adjudica- 
tion of  the  matters  involved  herein  or  of  any 
other  matters  in  the  suit  brought  by  Cam- 
eron &  McManus  to  foreclose  their  assess- 
ment certificates.  True,  a  demurrer  to  their 
petition  was  sustained,  but  before  any  Judg- 
ment or  decree  was  entered  in  the  case  the 
action  was  dismissed  without  prejudice.  In 
such  circuu^stances  there  was  no  adjudica- 


tion which  was  binding  on  eltber  party  to 
the  suit.  Tyler  ▼.  Langworthy,  37  Iowa,  555. 
By  invoking  the  remedy  of  foreclosure  whlcb 
did  not  pass  to  Judgment,  and  which  the  trial 
court  Indicated  they  did. not  Imve,  there  wa» 
no  such  election  of  remedies  as  barred  Cam- 
eron &  McManus  from  a  tax  sale  for  out- 
standing assessments.  Austin  Mfg.  Co.  y. 
Decker,  109  Iowa,  277,  80  N.  W.  312;  Red- 
head Bros.  V.  Investment  Co.,  128  Iowa,  410,. 
102  N.  W.  144;  Zimmerman  v.  Bobinson  & 
Co.,  128  Iowa,  72,  102  N.  W.  814.  In  Ohio  it 
lutB  been  held  that  the  Institution  of  a  suit 
to  foreclose,  in  which  no  decree  has  been 
entered,  does  not  bar  an  extrajudicial  sale  to- 
enforce  the  lien.  Brisbane  v.  Stoughton,  17 
Ohio,  482.  See,  also,  Atwater  v.  Kinman. 
Har.  (Mich.)  243.  The  right  to  sell  at  tax 
sale  was  manifestly  not  adjudicated  in  the- 
prlor  proceedings,  nor  could  it  have  been  un- 
der the  issues  Joined  or  which  might  have 
been  tendered.  Spinney  v.  Mliler,  114  Iowa, 
210,  86  N.  W.  317,  89  Am.  St  Rep.  351.  The 
fact  that  the  certificate  of  purchase  was  not 
Issued  at  the  time  of  sale  is  not  to  be  given- 
controlling  effect  Of  course  the  delay  might, 
in  the  absence  of  explanation,  be  regarded, 
as  evidence  of  abandonment  of  the  sale ;  but 
the  delay  is  so  explained  in  this  case  that  al) 
presumption  of  abandonment  is  fully  negativ- 
ed. Mere  delay  in  issuing  the  certificate  of 
purchase,  no  prejudice  to  the  owner  of  the 
land  being  shown,  will  not  Invalidate  the 
sale.  Otoe  Co.  v.  Brown,  16  Neb.  894,  20  N. 
W.  274;  People  v.  Cady,  105  N.  X.  299,  11 
N.  B.  810. 

There  remain  but  two  propositions  made 
in  support  of  the  appe9.1.  One  is  that  the 
taxes  are  barred,  and  were  when  the  tax  sale 
was  had,  and  the  other  that  as  these  taxes, 
were  not  carried  forward  from  year  to  year 
on  the  city  tax  books,  the  sale  was  invalid, 
and  no  proceedings  will  lie  to  collect  the 
taxes. 

1.  Plaintiff  relies  upon  section  1448  of  the 
Code,  but  as  that  applies  only  to  actions  te 
recover  property  sold  for  taxes,  it  gives  us 
no  aid  in  solving  the  question  presented.  It 
appears  from  the  charter  of  the  city  as  set 
forth  in  the  acts  of  the  General  Assembly 
heretofore  referred  to  that  liens  for  taxes 
and  assessments  in  the  city  of  Keokuk  are 
perpetual  and  exist  until  the  taxes  or  assess- 
ments are  paid.  This  being  true,  it  follows 
that  sale  may  be  had  at  any  time  after  they 
become  delinquent  See  section  22,  c.  17, 
Acts  5th  Gen.  Assem. ;  sections  11,  12,  c.  14, 
Acts  2Sd  Gen.  Assem.  1890;  sections  11,  12, 
c.  7,  Acts  25th  Gen.  Assem.  1894.  Again  it 
has  been  held  by  us  in  construing  the  char- 
ter of  the  defendant  city  that  lapse  of  time 
will  not  bar  or  prevent  an  action  for  the  col- 
lection of  taxes  which  are  in  perpetual  lien. 
See  Dennlson  v.  City  of  Keokuk,  45  Iowa, 
266-268.  There  seems  to  be  no  statute  limit- 
ing the  time  wherein  property  in  the  city  ot 
Keokuk  may  be  sold  for  taxes  or  special  as- 
sessments, and  as  sudi  sales  are  not  actions 


Digitized  by  LjOOQ  l€ 


Iowa) 


MEN6EL  T.  ME^GEL. 


899 


or  suits  the  general  statutes  of  limitation  do 
not  apply.  Iowa  Land  Co.  t.  Douglas  Ca,  8 
S.  D.  491,  67  N.  W.  62-56;  State  v.  Certain 
Lands,  40  Idlnn.  612,  42  N.  W.  473 ;  Galusha 
y.  Wendt,  114  Iowa,  697-606,  87  N.  W.  612. 
Was  it  necessary,  then,  that  the  delinquent 
special  assessment  should  be  brought  forward 
upon  the  city  tax  books  each  year  while  they 
remained  unpaid,  and  until  the  time  of  sale? 
No  statute  to  which  our  attention  has  been 
called  so  provides,  and  in  the  absence  of  such 
requirement,  a  sale  for  taxes  not  brought  for- 
ward cannot  be  challenged  by  a  property 
owner.  Hunt  v.  Gray,  76  Iowa,  268,  41  N. 
W.  14. 

2.  One  proposition  advanced  by  appellee  is 
sufficient,  however,  in  our  Judgment  to  defeat 
the  plaintiff.  In  the  proceedings  brought  by 
him  attacking  the  assessment  there  was  a 
holding  that  the  taxes  when  levied  and  as- 
sessed were  not  Invalid;  such  was  the  legal 
eflTect  of  the  holding  in  the  second  case 
brought  by  plaintiff  which  was  appealed  to 
this  court  and  here  dismissed.  Murphy  t. 
Cuddihy,  111  Iowa,  645,  82  N.  W.  999 ;  Fos- 
ter ▼.  Hinson,  76  Iowa,  714.  39  N.  W.  682; 
Snell  V.  Campbell  (C.  C.)  24  Fed.  881.  This 
being  true  the  assessment  must  be  treated  as 
valid.  Treated  aa  valid,  plaintiff  owes  the 
same  to  the  city  or  to  the  certificate  holder, 
unless  the  claim  is  barred  by  the  statute  of 
limitations.  That  being  true,  plaintiff  can- 
not attack  the  sale  or  have  the  certificate  of 
purchase  set  aside  without  paying,  or  offer- 
ing to  pay,  the  amount  of  the  assessment 
with  legal  Interest  Gardner  v.  Early,  69 
Iowa,  42,  28  N.  W.  427;  Grlmmell  v.  City  of 
Des  Moines,  57  Iowa,  144,  10  N.  W.  330; 
Morrison  v.  Hershire,  32  Iowa,  271 ;  Wells  v. 
Western  Paving  &  Supply  Co.,  96  Wis.  116,  70 
N.  W.  1071.  This  rule  has  been  applied  to 
cases  where  the  debt  is  barred  by  statute. 
See  Esterbrook  v.  O'Brien,  98  Cal.  671,  33 
Pac.  765;  McQulddy  v.  Ware,  20  Wall.  14,  22 
L.  Ed.  811;  Hayes  v.  Frey,  54  Wis.  503,  11 
N.  W.  695;  Booth  v.  Hoskins,  75  Cal.  271, 
17  Pac.  225 ;  De  Walsh  v.  Braman,  160  111. 
416,  43  M.  E.  597.  This  is  a  salutary  rule 
and  in  itself  quite  decisive  of  plaintiff's  case 
in  view  of  the  adjudication  against  him  in 
the  case  appealed  to  this  court 

We  have  gone  over  the  propositions  involv- 
ed with  care,  and  find  no  error  in  the  decree. 
It  is  therefore  affirmed. 


MENGEL  V.  MENGEI/  et  al. 
(Supreme  Court  of  Iowa.    Oct  27,  1909.) 

Appeal  from  District  Court  Scott  County ; 
A.  J.  House,  Judge. 

Supplemental  opinion  on  petition  for  re- 
hearing.   Petition  denied. 

For  former  opinion,  see  120  N.  W.  72. 

Ruymann  &  Ruymann  and  Salinger,  S'cott 
A  Theophllus,  for  appellant  Sharon  &  Done- 
san,  for  appelleesw 


PER  CURIAM.  The  appellant  insists,  in 
a  petition  for  a  rehearing,  that  the  opinion  is 
counter  to  decisions  of  this  court  on  the  ques- 
tion of  Jurisdiction  in  a  divorce  proceeding 
instituted  by  a  petition  lacking  the  essential 
averment  that  the  application  was  "made  in 
good  faith."  The  cases  in  this  court  now 
relied  upon  are  Plnkney  v.  Pinkney,  4  G. 
Greene,  324,  Lyster  v.  Lyster,  1  Iowa,  130, 
Inskeep  v.  Inskeep,  6  Iowa,  204-208,  and 
Blinn  V.  Bllnn,  113  Iowa,  83,  84  N.  W.  957. 
These  cases  were  not  cited  by  appellant  on 
the  original  submission,  and,  as  we  now  think 
that  they  are  not  at  all  controlling,  we  migbt 
properly  refuse  to  notice  the  argument  based 
upon  them.  But  inasmuch  as  counsel  insists 
we  have  gone  counter  to  our  own  prior  deci- 
sions, and  therefore  have  Introduced  a  con- 
fusion into  the  law  of  the  state,  we  have 
thought  best  to  refer  to  them  in  this  supple- 
mental opinion. 

In  the  Pinkney  Case  there  was  an  appeal 
by  defendant  from  a  decree  of  divorce  grant- 
ed by  default,  and  one  of  several  grounds  of 
reversal  was  that  the  petition  was  not  suffi- 
cient, because  in  alleging  willful  absence  of 
defendant  as  a  ground  of  divorce  it  was  not 
stated  that  such  absense  was  without  suffi- 
cient cause.  The  court  says  this  omission  is 
fatal,  and  in  other  similar  respects  the  peti- 
tion is  held  to  l>e  fatally  defective.  But  it  is 
not  intimated  in  the  opinion  that  the  decree 
was  on  that  account  void  and  would  be  sub- 
ject to  collateral  attack.  Without  doubt,  fail- 
ure of  the  plaintiff  to  allege  facts,  which  by 
statute  are  required  by  mandatory  provision 
to  be  alleged,  would  be  a  ground  for  reversal, 
even  though  the  defendant  has  not  raised  the 
specific  objection ;  but  it  does  not  follow  that 
the  decree  based  on  such  petition  would  be 
absolutely  void  and  subject  to  collateral  at- 
tack. In  the  Lyster  Case  nothing  is  said  per- 
tinent to  the  question  now  l)efore  the  court, 
save  that  the  consent  of  defendant  to  the 
granting  of  the  divorce  prayed  for  does  not 
relieve  the  court  from  the  duty  of  inquiring 
into  the  case  for  the  purpose  of  determining 
whether  a  ground  for  divorce  in  fact  exists ; 
and  in  the  Inskeep  Case  it  is  said,  by  way  of 
argument  that  if  anything  like  collusion  ap- 
pears the  court  should  not  allow  any  weight 
to  the  failure  of  defendant  to  deny  the  mis- 
conduct charged.  The  Blinn  Case  recognizes 
the  duty  of  the  court  to  refuse  a  divorce  on 
the  ground  of  collusion,  but  there  is  a  re- 
versal because  the  court  dismissed  the  pro- 
ceeding on  that  ground,  and  refused  to  re- 
ceive further  evidence  in  response  to  the 
showing  that  the  proceeding  was  collusive. 
It  is  apparent  that  none  of  these  cases  sup- 
port the  contention  of  appellant  that  the  de- 
cree, rendered  on  the  petition  not  containing 
some  averment  required  by  the  statute  to  be 
made,  is  without  Jurisdiction  and  subject  to 
collateral  attack. 

We  do  not  care  now  to  re-examine  the  au- 
thorities cited  from  other  states,  for  the  rea- 


Digitized  by 


Google 


900 


122  NOBTHWESTEBN  REPORTER. 


(Iowa 


son  that  we  think  the  abstract  proposition  Is 
not  involTed  In  this  case.  The  defendant  In 
this  proceeding  filed  the  petition  which  la 
now  assailed  as  having  been  defective.  Be- 
fore a  decree  of  divorce  was  rendered,  she 
asked  an  allowance  of  temporary  alimony, 
which  was  granted.  On  an  appeal  to  this 
court  the  allowance  was  affirmed.  Whether 
or  not  a  decree  of  divorce  subsequently  ren- 
dered on  her  petition  would  have  been  with- 
out Jurisdiction  is,  we  think,  wholly  imma- 
terial. The  court  did  acquire  Jurisdiction  to 
proceed  In  the  case  to  the  extent  of  deter- 
mining whether  plaintiff  should  be  allowed 
temporary  alimony  for  the  purpose  of  Its 
prosecution  and  for  her  support  during  such 
prosecution.  The  defendant  in  that  case,  ap- 
pellant in  this,  resisted  the  allowance  of  such 
alimony,  and  subsequently  appeared  In  court 
in  proper  manner  to  have  the  order  modified. 
With  reference  to  the  allowance  of  alimony, 
therefore,  the  court  was  clearly  acting  with- 
in Its  Jurisdiction,  and  the  enforcement  of  its 
order  in  that  respect  cannot  be  enjoined  by 
way  of  a  collateral  attack.  It  is  also  to  be 
noticed  that  this  appellant  appealed  from  a 
ruling  on  his  application  to  modify  the  Judg- 
ment appealed  from,  which  application  also 
included  a  prayer  for  an  injunction  restrain- 
ing the  order  for  temporary  alimony,  and 
that  on  this  appeal  be  was  unsuccessful.  In 
view  of  this  record,  we  see  no  ground  for 
modifying  the  conclusion  reached  in  the  opin- 
ion In  respect  to  the  defect  in  the  original 
petition  for  divorce. ' 

Other  points  made  In  the  petition  for  re- 
hearing are  sufficiently  covered  by  the  orig- 
inal opinion,  and  we  are  satisfied  to  reaffirm 
the  conclusions  there  announced. 

The  petition  for  rehearing  Is  therefore  de- 
nied. 


COAD  V.  SCHAAP,  Sheriff,  et  al. 
(Supreme  Court  of  Iowa.    Oct.  23,  1909.) 

1.  Sheriffs  and  Constables  (g  152*)— Salk 
ON  Execution— Penalty  fob  Sale  With- 
out Notice. 

Code  1807,  g  4027,  imposing  a  penalty  on 
an  ofiScer  matcing  an  execution  sale  witliout 
the  prescribed  notice  tberof,  relates  only  to  a 
sale  of  real  property. 

[Ed.  Note.— For  other  cases,  see  Sheriffs  and 
Constables,  Cent.  Dig.  §  340;  Dec  Dig.  8  132.*] 

2.  Tbial  (§  83*)— Reception  of  Evidence- 
Statement  OF  Ghoun'D  of  Objection. 

An  objection  to  evidence,  where  it  is  de- 
sired to  rely  upon  the  insulficiency  in  law  of 
the  answer  which  the  evidence  tends  to  support, 
must  call  the  court's  attention  to  the  fact  that 
that  is  the  ground  of  objection. 

(Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.    §§    103-210;     Dec.    Dig.    §    83.»] 

Appeal  from  District  Court,  Slouz  County ; 
William  Hutchinson,  Judge. 

Action  to  recover  damages  against  defend- 
ant as  sheriff  for  the  conversion  of  moneys 
collected    under    execution    running    against 


this  plaintiff  issued  In  an  action  In  wbidi 
Judgment  was  rendered  against  him,  and  al- 
so to  recover  a  penalty  for  selling  the  prop- 
erty of  plaintiff  on  execution  without  the 
notice  required  by  Code,  g  4027.  On  a  trial 
to  the  court,  there  was  a  Judgment  against 
plaintiff  for  costs,  and  plaintiff  appeals.  Af* 
firmed. 

G.  T.  Hatley,  for  appellant  G.  Klay,  for 
appellees. 

McCLAIN,  J.  The  defendant,  as  sheriff, 
held  an  execution  against  this  plaintiff  In  an 
action  In  which  Judgment  had  been  rendered 
against  him  for  |183.07,  including  costs,  and 
under  such  execution  served  notice  of  gar- 
nishment on  an  alleged  debtor  of  said  execu- 
tion defendant  In  response  to  this  notice 
of  garnishment  the  sum  of  $265,  held  by  the 
garnishee  as  the  property  of  the  execution 
defendant  was  surrendered  to  the  sheriff, 
and  the  garnishee  was  thereupon  discharged. 
The  execution  was  then  returned  to  the  clerk 
of  the  court  with  the  amount  of  money  neces- 
sary for  its  satisfaction,  and  the  clerk  en- 
tered a  satisfaction  of  the  execution  accord- 
ingly. Plaintiff  complains  that  he  was  not 
served  with  notice  of  the  garnishment  pro- 
ceedings as  required  by  Code,  |  3947,  and 
that  no  copy  of  the  execution  showing  the 
garnishment  proceeding  under  it  was  return- 
ed to  the  next  term  of  court  as  required  by 
Code,  I  3970,  and  that  by  the  action  of  the 
sheriff  without  such  proceeding^  on  his  part 
being  brought  to  the  attention  of  the  plain- 
tiff, an  appeal  by  him  from  the  original  Judg- 
ment which  had  been  rendered  against  bim 
was  prevented,  all  of  which  was  to  his  dam- 
age, etc. 

It  does  not  appear  that  plaintiff  was  pre- 
vented from  appealing  from  the  Judgment 
rendered  in  the  other  action  against  him  by 
any  omission  of  the  sheriff  In  making  a  more 
speedy  return  of  the  execution,  or  such  re- 
turn as  to  show  the  garnishment  proceed- 
ing, and  it  does  appear  by  evidence  which, 
was  objected  to  by  plaintiff  that  defendant 
tendered  to  the  plaintiff  by  payment  to  the 
clerk  of  court  for  plaintlfTs  t>eneflt  of  the 
excess  of  the  money  collected  on  the  garnish- 
ment beyond  the  amount  necessary  to  satisfy 
the  execution  in  bis  hands.  We  cannot  see, 
therefore,  under  the  evidence,  any  ground  on 
which  Judgment  for  damages  against  the  de- 
fendant could  have  been  rendered.  As  to  the 
penalty  provided  for  In  Code,  S  4027,  it  is 
sufficient  to  say  that  it  relates  only  to  the  sale 
of  real  property  without  notice  to  the  execu- 
tion debtor,  and  that  no  real  property  was 
sold  by  the  sheriff  under  the  execution  which 
he  held. 

It  further  appears,  however.  Irrespective  of 
the  merits  of  plalntifTs  claim  for  damages, 
that  he  has  presented  no  record  to  this  court 
which  entitles  him  to  the  review  of  any  qnes- 


•7or  other  casea  lee  *ame  topic  aod  section  NUMBER  In  Dec.  &  Am.  Vig:  1907  to  date,  &  Reiwrtar  Indexes 


Digitized  by  VjOOQ  l€ 


Iowa) 


JONBS  V.  SUTHERLAND. 


901 


tlon  Trhidi  be  has  attempted  to  pr^ent  on 
this  appeal.  No  ezc^tion  appears  to  have 
been  taken  to  the  Judgment  against  him  for 
costs  which  was  an  adjudication  that  he  was 
not  entitled  to  recover  any  Judgment  against 
the  defendant  The  only  exception  preserved 
In  the  record  was  to  the  action  of  the  court 
in  overruling  his  objection  to  evidence  offered 
by  the  defendant  consisting  of  an  entry  In 
the  combination  appearance  and  Judgment 
doclcet  showing  the  payment  to  the  clerk  by 
defendant  of  the  surplus  In  his  hands  after 
satisfaction  of  the  execution.  The  objection 
to  this  evidence  was  that  it  was  incompetent, 
irrelevant,  and  Immaterial,  but  no  specific 
ground  was  stated.  Appellant  now  contends 
that  he  sought  In  this  manner  to  question  the 
sufficiency  of  the  answer  of  the  defendant  al- 
leging the  satisfaction  of  the  execution  which 
he  held  against  plaintiff  out  of  the  money 
collected  from  the  garnishee  and  the  payment 
to  the  clerk  for  the  plaintiff  of  the  balance 
of  the  sum  so  collected.  While  it  may  l>e 
that  an  objection  to  an  answer  which  might 
be  raised  by  demurrer  may  in  some  cases 
be  sufficiently  made  by  objection  to  the  evi- 
dence offered  tending  to  support  the  allega- 
tions of  such  answer,  yet  we  tlilnk  it  very 
clear  that  the  objection  must  in  some  way 
call  the  court's  attention  to  that  as  the 
ground  of  objection,  if  it  is  desired  to  rely 
upon  the  insufficiency  in  law  of  the  answer 
which  the  evidence  tends  to  support.  In  gen- 
eral the  ground  of  objection  to  evidence  of- 
fered must  be  brought  to  the  court's  atten- 
tion. Puth  V.  Zimbleman,  99  Iowa,  641,  68 
N.  W.  805;  Brier  v.  Davis,  122  Iowa,  B9,  96 
N.  W.  983;  Page  v.  Grant,  127  Iowa,  249, 
103  N.  W.  124.  There  may  be  cases  where 
errors  in  interlocutory  mlings  can  be  review- 
ed without  formal  exception  to  the  Judg- 
ment having  been  preserved,  but  clearly  here 
there  was  nothing  to  apprise  the  court  from 
first  to  last  that  the  plaintiff  was  question- 
ing the  sufficiency  of  defendant's  answer  as 
matter  of  law,  and  we  think  he  has  no  stand- 
ing in  court  now  without  an  exception  to  the 
Judgment  to  question  the  correctness  of  a  rul- 
ing which  might  have  been  made  had  he  se- 
cured it  in  proper  form  and  time. 
The  Judgment  is  affirmed. 


JONES  V.  SUTHEmiiAND. 

(Snpreme  Court  of  Iowa.    Oct.  25,  1909.) 

Assault  and  Battebt  (I  42*)— Civn.  Acnon 

— BVIDBNCB. 

Plaintiff  in  an  action  for  assault  and  lot- 
tery was  entitled  to  go  to  the  jury ;  one  of  the 
two  interpretations  of  which  the  evidence  was 
capable  being  that  from  an  afiFray  between  de- 
fendant and  plaintifTs  brother,  in  which  defend- 
ant was  the  aggressor,  defendant  had  not  with- 
drawn, but  was  continuing  his  aggressions  on 
the  brother,  threatening  injnry  to  him  with  an 
open  knife  in  his  hands,  when  plaintiff  seised 
defendant,  merely  attempting  to  prevent  his 
threatened  violence,  and  that  thereupon  he  was 
assaulted  and  cut  by  defendant  without  Justifi- 


cation, plaintiffs  brother  not  further  assaulting 
defendant  till  it  appeared  he  was  about  to  in- 
jure plaintiff  with  the  knife. 

(Ekl.  Note.— For  other  cases,  see  Asisault  and 
Battery,  Cent.  Dig.  {  56 ;    Dec  Dig.  {  42. •] 

Appeal  from  District  Court,  Washington 
County;   Byron  W.  Preston,  Judge. 

"Not  to  be  officially  reported." 

Action  to  recover  damages  for  assault  and 
battery.  At  the  conclusion  of  the  evidence 
for  plaintiff,  the  court  sustained  defendant's 
motion  for  a  directed  verdict  In  his  favor, 
and  from  the  Judgment  on  this  verdict  plain- 
tiff appeals.    Reversed. 

Eicher  &  Livingston,  for  appellant  S.  W. 
&  J.  L.  Brookhart  for  appellee. 

PER  CURIAM.  The  evidence  introduced 
on  behalf  of  plaintiff  tended  to  show  that 
plaintiff  and  two  others  went  with  plaintilTs 
brother,  Madison  Jones,  to  the  farm  of  de- 
fendant, from  whom  Madison  Jones  had  been 
renting  a  piece  of  land.  These  four  persons 
were  in  two  wagons,  and,  when  they  reached 
defendant's  place,  Madison  Jones  entered  in- 
to some  conversation  with  defendant  in  re- 
gard to  damages  to  his  corn  by  defendant's 
hogs  or  sheep.  In  the  course  of  this  conver- 
sation there  were  recriminations,  and  defend- 
ant characterized  several  statements  of  Madi- 
son Jones  as  being  false.  The  latter  char- 
acterized as  false  some  statements  made  by 
defendant  whereupon  defendant  approached 
blm,  where  he  stood  beside  the  front  wagon, 
and  hit  blm  on  the  side  of  the  head  with  an 
ash  pan  or  bucket  Madison  Jones  resisted 
this  assault  with  a  club,  which  he  picked  up 
from  the  ground,  and  defendant  threatened 
to  cut  him  with  an  open  pocketknife  which 
be  held  in  his  left  hand.  We  think  the  evi- 
dence clearly  tends  to  show  that  up  to  this 
time  defendant  had  been  the  aggressor  In  the 
affray.  Thereupon  plaintiff,  who  had  been 
in  the  second  wagon,  came  forward  and  seiz- 
ed defendant  from  the  l>ack  or  side,  holding 
down  his  arms  with  the  apparent  purpose  of 
preventing  further  assault  upon  his  brother, 
commanding  the  latter  to  cease  striking  de- 
fendant, who  bad  iMirtially  turned  away  from 
Madison  Jones,  yielding  apparently  to  the 
iatter's  resistance.  But  In  response  to  threats 
of  defendant  to  cut  plaintiff  with  the  knife, 
which  he  still  held  open  in  his  hand,  Madi- 
son Jones  again  struck  defendant,  and  the 
defendant  cut  plaintiff  with  the  knife,  In- 
flicting one  slight  wound,  and  another,  rather 
more  serious,  but  not  dangerous,  in  plain- 
tiff's back.  Plaintiff  then  released  defend- 
ant, who  called  for  assistance,  whereupon  his 
wife  and  niece,  coming  from  the  house,  threw 
stones  at  plaintiff  and  others  of  the  party. 
Plaintiff  made  some  resistance  to  the  niece, 
apparently  for  the  purpose  of  interposing  as 
against  her  assault;  but,  without  further 
actual    damage    being   done,    plaintiff   and 


•rw  Mher  easM  n*  mud*  topte  and  teetlOB  NUUBBR  la  Dso.  *  Am.  Dlgi.  IMT  to  data,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


902 


122  NORTHWESTERN  REPORTER. 


(Iowa 


those  with  him  returned  to  their  wagons  and 
left  defendant's  premises. 

We  think  the  evidence  makes  out  no  case 
against  the  defendant,  unless  there  was  suffi- 
cient evidence  to  go  to  the  jury  as  to.  wheth- 
er defendant  acted  outside  of  the  scope  of 
proper  self-defense  In  cutting  plaintiff  with 
his  knife.  The  propositions  of  law  relied 
upon  for  appellant  are  not  controverted,  and 
we  think  the  sole  question  for  the  trial  judge 
was  one  of  fact;  that  Is,  whether  the  evi- 
dence conclusively  showed  that  at  the  time 
plalntlET  seized  the  defendant  the  latter  had 
abandoned  his  attack  upon  plaintiff's  brother, 
or  whether,  on  the  other  hand,  there  was  evi- 
dence tending  to  show  that  plaintiff,  properly 
Interposing  to  prevent  further  assault  upon 
his  brother  by  defendant  holding  in  his  hand 
an  open  knife  and  threatening  violence,  was 
thereupon  assaulted  and  cut  by  defendant 
without  justification.  If  defendant  was  at- 
tempting to  withdraw  from  the  affray,  and 
was  prevented  from  doing  so  by  plaintiff, 
who  seized  and  held  him  while  his  brother 
continued  a  retaliatory  assault  with  the  club, 
then  no  doubt  defendant  was  excusable  for 
using  violence  In  self -defense.  But  from  the 
evidence  the  Jury  would  have  been  justified 
in  finding  that  defendant  had  not  withdrawn 
from  the  affray,  but  was  continuing  his  ag- 
gressions upon  plaintlft's  brother,  threatening 
injury  to  him  by  means  of  an  open  knife  held 
in  his  hand ;  that  plaintiff  did  no  more  than 
attempt  to  prevent  this  threatened  violence; 
and  that  plaintiff's  brother  did  not  repeat  his 
assault  upon  defendant  with  a  club  until  It 
appeared  that  defendant  was  about  to  Inflict 
injury  upon  plaintiff  with  his  knife. 

Now  we  reach  the  conclusion  that  In  this 
state  of  the  evidence  the  lower  court  was  not 
justified  in  directing  a  verdict  for  the  defend- 
ant. The  evidence  was  capable  of  two  inter- 
pretations ;  but  we  cannot  say  that  the  jury 
would  not  have  been  warranted  in  adopting 
the  Interpretation  favorable  to  plaintiff.  No 
useful  puri'ose  would  be  subserved  by  setting 
out  this  evidence  In  greater  detail.  Defend- 
ant was  not  without  fault,  according  to  the 
evidence.  In  his  assault  upon  plaintiff's  broth- 
er, and  we  think  it  should  have  been  left  to 
the  jury  to  say  whether,  to  plalntifTs  knowl- 
edge as  a  reasonably  prudent  man,  defend- 
ant's assault  upon  the  brother,  which  was 
dangerous  in  its  character,  had  been  so  far 
abandoned  as  to  deprive  plaintiff  of  any  le- 
gitimate occasion  for  Interfering.  It  may 
well  be  that  the  trial  court  felt,  in  view  of 
the  evidence  presented,  that  on  the  whole  the 
interests  of  justice  would  best  be  promoted 
by  refusal  to  submit  to  the  jury  any  issue  as 
between  the  parties.  But  we  think  there 
was  a  view  of  the  evidence,  which  the  jury 
might  properly  have  taken,  which  would 
have  absolved  plaintiff  from  any  fault,  and 
Indicated  a  wrongful  act,  without  excuse  in 


self-defense,  on  defendant's  part  as  toward 
the  plaintiff. 

With  reluctance,  bnt  In  the  belief  that 
there  was  sufficient  evidence  on  which  plain- 
tiff was  entitled  to  go  to  the  jury  as  against 
defendant,  we  reverse  the  judgment  of  the 
trial  court 

Reversed. 


STATE  ▼.  HUNT. 
(Supreme  Court  of  Iowa.    Oct.  25,  1909.) 

1.  Cbiminal  Law  (5  404*) — Evidence-=-Exhi- 
BiTioN  OF  Child  to  Jury. 

In  a  prosecution  for  seduction,  it  is  error 
to  exhibit  prosecutrix's  child,  only  a  few  months 
old,  to  the  jury  to  determine  a  supposed  re- 
semblance. 

[Ed.  Note.— For  other  cases,  see  Criminal  Law, 
Cent.  Dig.  i  891 ;   Dec  Dig.  {  404.*] 

2.  CannNAi,  Law  (§  633*)— Tbiai>-Pbese»c» 
OF  Child  in  Coubt. 

In  a  prosecution  for  seduction,  the  mere 
presence  of  prosecutrix's  child  in  court  and  ref- 
erence to  it  iQ  the  testimony  as  being  tlie  cliild 
begotten  of  prosecutrix  merely  to  corroborate 
her  as  to  the  corpus  delicti  is  not  error. 

[EM.  Note.— For  other  cases,  see  Criminal  Law, 
Dec.  Dig.  §  633.»] 

3.  Oriminai,  Law  (|  715*)— Trial— Miscon- 
duct OF  Prosecuting  Attobnet. 

In  a  prosecution  for  seduction,  prosecu- 
trix's child,  which  was  bom  to  her  when  she  was 
but  IS,  was  permitted  to  remain  in  her  arms 
during  the  trial  over  objection,  and  the  pros- 
ecuting attorney  in  his  closing  argument  pointed 
to  the  child  "with  a  thousand  hands,"  and  de- 
clared that  it  was  "ail  the  evidence  that  any 
man  would  ask"  of  defendant's  connection  with 
the  offense.  Held,  that  such  aivument  consti- 
tuted an  exhibition  of  the  child  to  determine 
an  alleged  resemblance  to  connect  defendant 
with  the  offense,  and  was  prejudicial  error. 

[Ed.  Note.— For  other  cases,  see  Criminal  Law, 
Cent.  Dig.  {  1006;    Dec  Dig.  i  715.»] 

Appeal  from  District  Court,  Monona  Coun- 
ty;  David  Mould,  Judge. 

The  defendant  was  indicted  for  the  crime 
of  seduction.  There  was  a  verdict  and  judg- 
ment of  guilty.  Defendant  appeals.  Re- 
versed. 

J.  A.  Prlchard,  for  appellant.  H.  W.  By- 
ers,  Chas.  W.  Lyon,  and  J.  W.  Anderson,  for 
the  State. 

EVANS,  C.  J.  There  Is  abundant  evi- 
dence of  moral  depravity  In  this  case;  but 
whether  the  evidence  Is  sufficient  to  prove 
the  particular  crime  charged  la  a  close  ques- 
tion. Inasmuch  as  a  new  trial  must  be 
awarded  on  another  ground,  and  other  evi- 
dence may  be  adduced  at  another  trial,  we 
deem  it  proper  not  to  enter  into  a  discus- 
sion of  the  evidence  at  this  time. 

At  the  time  of  the  commission  of  the  al- 
leged crime,  the  defendant  and  the  prose- 
cuting witness  were  each  about  17  years 
of  age.  This  was  on  February  8,  1908.  A 
child  was  bom  to  the  prosecutrix  on  Novem- 
ber 10,  190&    The  trial  in  this  case  com- 


•For  other  case*  *ee  same  topic  and  aecUoa  NUMBER  tn  Deo.  ft  Am.  Digs.  ISOT  to  date,  *  ReiiortaT  Isdexia 


Digitized  by 


Google 


Iowa) 


MULLEN  V.  WOODMEN  OF  THE  WORLD. 


903 


menced  January  18,  1909.  The  prosecutrix 
appeared  at  the  trial  with  her  babe  In  her 
Arms.  The  defendant  made  a  formal  ob- 
jection to  the  presence  of  the  child  In  court 
during  the  trial,  and  asked  that  it  be  ex- 
cluded from  the  yiew  and  consideration  of 
■the  Jury.  This  objection  was  overruled.  In 
his  opening  statement  to  Jury  the  county 
attorney  made  express  reference  to  the  pres- 
«nce  of  the  child  In  court,  and  objection 
■was  made  by  defendant's  counsel  thereto, 
which  was  also  overruled,  and  the  defend- 
ant now  complains  of  this  ruling.  Up  to 
this  point  in  the  trial  there  was  no  claim 
on  the  part  of  the  state  of  any  intent  to 
exhibit  the  child  to  the  Jury  for  the  pur- 
pose of  determining  any  resemblance  to  the 
defendant,  nor  was  it  claimed  that  there 
was  any  such  resemblance  apparent  In 
State  V.  Danforth,  in  48  Iowa,  43,  30  Am. 
Rep.  387,  it  was  held  reversible  error  to  ex- 
hibit to  the  Jury  a  child  only  a  few  months 
old  for  the  purpose  of  determining  a  sup- 
posed resemblance.  This  rule  was  reaf- 
■flrmed  in  State  v.  Harvey,  112  Iowa,  416,  84 
'  N.  W.  535,  62  L.  R.  A.  500,  84  Am.  St  Rep. 
350.  In  State  v.  demons,  78  Iowa,  123,  42 
N.  W.  562,  it  was  held  that  the  mere  pres- 
«nce  of  the  child  in  court  and  the  reference 
to  it  in  testimony  as  being  the  child  be- 
gotten of  the  prosecutrix  was  not  objection- 
able. It  was  held  to  be  corroborative  of  the 
prosecutrix  as  to  the  corpus  delicti,  though 
not  entitled  to  any  consideration  as  tending 
to  connect  the  defendant  with  the  offense.' 
■The  ruling  of  the  court,  therefore,  was  in 
accord  with  the  distinction  made  in  the 
demons  Case,  and  up  to  this  point  was  not 
-prejudicial  to  the  defendant  This  circum- 
stance, however,  took  on  added  significance 
<ln  the  later  stages  of  the  trial,  and  we  shall 
have  occasion  to  consider  it  In  the  next  dlvl- 
-slon  hereof. 

2.  Appellant  complains  of  the  misconduct 
•of  the  county  attorney  in  his  closing  argu- 
ment to  the  Jury.  Much  of  the  address  was 
ipreserved  and  has  been  presented  to  us  in 
this  record.  We  feel  compelled  to  say  that 
there  was  much  In  this  address  that  was 
"Wholly  unwarranted  by  the  record,  and  that 
was  unfair  to  the  defendant  Notwlth- 
-standing  the  fact  that  by  the  ruling  of  the 
•court  the  child  had  been  permitted  to  re- 
main in  the  courtroom  during  the  trial  only 
for  the  purpose  permitted  by  the  holding 
in  the  demons  Case  and  not  for  the  pur- 
pose of  ignoring  In  any  degree  the  rule  laid 
down  in  the  Danforth  and  Harvey  Cases, 
yet  counsel  for  the  prosecution  in  his  clos- 
ing address  pointed  to  the  child  "with  a 
thousand  hands,"  and  declared  that  it_  was 
"all  the  evidence  that  any  man  would  "ask" 
of  the  defendant's  connection  with  the  of- 
fense. This  was.  In  effect,  an  exhibition  of 
the  child  to  the  Jury  for  the  purpose  of  de- 
termining alleged  resemblance,  and  was  se- 


riously improper  conduct  on  the  part  of 
counsel.  This  act  on  the  part  of  counsel 
is  suMclent  of  itself  to  require  us  to  order  a 
new  trial,  and  we  will  not  enter  into  a  dis- 
cussion of  other  portions  of  the  address.  It 
is  sufficient  to  say  that  there  is  much  in  the 
address  which  cannot  be  approved.  Our 
views  as  to  what  constitutes  misconduct  on 
the  part  of  counsel  in  the  trial  of  a  crimi- 
nal case  are  Indicated  in  many  opinions. 
State  V.  Proctor,  86  Iowa,  698,  53  N.  W.424; 
State  V.  Helm,  92  Iowa,  540,  61  N.  W.  246 ; 
State  V.  Hasty,  121  Iowa,  520,  96  N.  W. 
1115;  State  v.  Harmann,  125  Iowa,  167,  112 
N.  W.  632;  State  v.  Puller  (Iowa)  121  N. 
W.  3. 

Other  questions  argued  are  such  as  are  not 
likely  to  arise  on  a  retrial. 

For  the  error  pointed  out  the  case  must 
be  reversed  and  remanded. 


MULLEN  (LEER,  Intervener)  v.  WOODMEN 

OF  THE  WORLD. 

(Supreme  Court  of  Iowa.    Oct  23,  1009.) 

1.  IiTSUBANCE   (5   755*)— Fratebnal  Benefi- 
ciary Insurance — Statutes — Defenses. 

Code  1807,  |  1826,  requiring  a  fraternal 
beneficiary  society  issuing  a  certificate  to  at- 
tach thereto  a  coi>y  of  the  application,  and  pro- 
viding that  a  society  neglecting  to  do  so  shall 
not  plead  or  prove  the  falsity  of  any  certificate 
or  representation  governs  all  cases,  and  insur- 
ed may  not  waive  compliance  therewith,  and 
a  society  failing  to  attach  the  application  to 
a  certificate  may  not  plead  or  prove  the  falsity 
of  representation  that  the  beneficiary  named  In 
the  certificate  was  a  relative  of  insured. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Dec.  Dig.  i  765.»] 

2.  INSUBANCB   (8  777*)— Fratebnax.   Benefi- 
ciary Insurance— Liability. 

A  fraternal  beneficiary  society  cannot  avoid 
liability  on  the  certificate  because  the  beneficiary 
named  therein  cannot  recover  because  not  with- 
in any  of  the  classes  designated  by  the  law  nor 
an  heir  or  legatee  of  the  member. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  8  1944;    Dec.  Dig.  I  777.*] 

3.  Insurance  (|   777*)— Fraternal  Benefi- 
ciary Insurance— Liability. 

Where  the  beneficiary  named  in  a  mutual 
benefit  certificate  cannot  recover  thereon  because 
not  within  any  of  the  classes  designated  by  law 
nor  an  heir  or  legatee  of  the  member,  the  admin- 
istrator of  the  member  may  recover  thereon. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  i  1944 ;  Dec.  Dig.  {  777.*] 

Appeal  from  District  Court  Woodbury 
County;  F.  R.  Gaynor,  Judge. 

Suit  on  a  certlflcdte  of  life  Insurance.  The 
plaintiff  and  defendant  appeal  from  a  Judg- 
ment in  favor  of  the  intervener.  The  defend- 
ant will  be  designated  as  appellant  Af- 
firmed. 

A.  H.  Burnett  and  Shull,  Famsworth  & 
Sammis,  for  appellant  Woodmen  of  the 
World.  H.  A.  Evans,  J.  L.  Kennedy,  and 
Joseph  Shoup,  for  appellant  Mullen.  Ferris 
&  Iddlngs,  for  appellee. 


••For  otber  cmm  lee  ume  topic  and  section  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  tt  Reporter  Indexes 


Digitized  by 


Google 


904 


122  NOBTHWESTERN  REPORTER. 


<Iowm 


8HERWIN,  J.  The  appellant,  a  fraternal 
beneficiary  association  organized  under  the 
laws  of  the  state  of  Nebraska,  Issued  to 
Alphes  Comens  a  certificate  providing  for 
the  payment  of  |1,000  should  the  insured  die 
after  the  certificate  had  been  in  force  more 
than  one  year,  and  for  the  payment  of  $500 
if  he  died  within  one  year.  The  plaintiff, 
Mae  Mullen,  was  named  in  the  certificate  as 
beneficiary,  the  insured  representing  to  the 
officers  of  the  defendant  that  she  was  related 
to  him  as  cousin.  Mr.-  Comens  died  within  a 
year  from  the  date  of  the  certificate,  and 
this  suit  was  thereafter  brought  by  the  plain- 
tiff to  recover  on  the  certificate.  The  appel- 
lee, Elizabeth  Leer,  intervened  as  the  ad- 
ministratrix of  the  estate  of  Comens,  and 
asked  that  the  amount  due  on  the  certificate 
be  awarded  to  her.  The  defendant  answer- 
ed, denying  any  liability  whatever  under  the 
certificate,  alleging  that  it  was  void  for  the 
reason  that  the  Insured  had  misrepresented 
the  relationship  of  the  beneficiary  named. 
Upon  the  trial  of  the  case  it  was  shown  that 
the  beneficiary  named  in  the  certificate  was 
not  related  to  the  insured  in  any  manner 
whatever.  The  court  dismissed  the  plain- 
tiff's petition,  and  found  the  Intervener,  as 
administratrix,  entitled  to  the  amount  due 
under  the  certificate.  No  copy  of  the  ap- 
plication was  attached  to  the  certificate  as 
required  by  section  1826  of  the  Code,  but 
the  application  contained  a  stipulation  waiv- 
ing the  attaching  of  a  copy  thereof. 

The  appellant  contends  that  the  insured 
could  waive  the  requirement  of  the  statute, 
and  that,  on  account  of  the  waiver  in  the  ap- 
plication, it  was  entitled  to  introduce  the  ap- 
plication in  evidence  and  prove  the  state- 
ments therein  contained  to  be  untrue.  Sec- 
tion 1826  requires  ttiat  a  true  copy  of  any 
application  or  representation  of  the  member, 
which  by  the  terms  of  the  certificate  are 
made  a  part  thereof,  shall  be  attached  to  the 
certificate,  and  says:  'The  omission  so  to 
do  shall  not  render  the  certificate  invalid, 
but,  if  any  such  association  neglects  to  com- 
ply with  the  requirements  of  this  section,  it 
shall  not  plead  or  prove  the  falsity  of  any 
such  certificate  or  representation  or  any  part 
thereof  In  any  action  upon  such  certificate." 
If  this  requirement  was  intended  to  confer 
upon  the  insured  a  mere  personal  right  or 
privilege,  it  could  probably  be  waived  by  him. 
But  we  are  of  the  opinion  that  the  legisla- 
tive Intent  was  to  announce  a  public  policy 
which  should  govern  all  cases,  notwithstand- 
ing any  attempted  waiver  on  the  part  of  the 
insured.  It  was  evidently  enacted  for  the 
purpose  of  avoiding,  as  far  as  possible,  any 
dispute  as  to  the  assured's  knowledge  of  the 
contract  by  which  his  beneficiaries  would  be 
t)ound.  Seller  v.  Life  Association,  105  Iowa, 
87,  74  N.  W.  941,  43  L.  R.  A.  537.  The  stat- 
ute in  positive  language  says  that  a  failure 


to  attadi  a  copy  of  the  application  or  rep- 
resentation  which  l>ecome8  a  part  of  the  cer- 
tificate shall  deprive  the  association  of  the 
right  to  plead  or  prove  the  falsity  of  ttie 
representation.  No  Intlmatioo  la  therein  giv- 
en that  there  may  be  a  waiver  of  the  require- 
ment, and  in  our  opinion  a  holding  that  a 
waiver  thereof  may  be  made  would  complete- 
ly emasculate  the  statute  and  open  the  door 
for  the  very  evils  which  the  Legislature 
sought  to  remedy.  As  supporting  this  view, 
see  the  following  cases  which  indirectly  bear 
thereon:  Johnson  v.  Des  Moines  Life  Ins. 
Co.,  105  Iowa,  273,  76  N.  W.  101 ;  Corson  v. 
Insurance  Co.,  113  Iowa,  641,  85  N.  W.  806; 
Rauen  v.  Insurance  Co.,  129  Iowa,  725,  106 
N.  W.  198;  Corson  v.  Insurance  Ass'n,  115 
Iowa,  485,  88  N.  W.  1086;  Bacon  on  Frater- 
nal Ins.  i  176.  The  defendant  was  therefore 
estopped  from  pleading  or  proving  the  false 
representation  that  the  beneficiary  named  in 
the  certificate  was  a  consln  of  the  assured. 
See  cases,  supra.  That  appellant  cannot 
avoid  liability  by  the  inability  of  the  named 
beneficiary  is  well  settled  by  our  own  deci- 
sions. Newman  v.  Ass'n,  76  Iowa,  56,  40  N. 
W.  87,  1  L.  R.  A.  659,  14  Am,  St  Rep.  196; 
Schmidt  V.  Ass'n,  112  Iowa,  41,  83  N.  W.  800. 
51  L.  R.  A.  141,  84  Am.  St  Rep.  323;  Smith 
V.  Maccabees,  127  Iowa,  116,  102  N.  W.  830, 
69  L.  R.  A.  174;  Ley  v.  Insurance  Co.,  120 
Iowa,  203,  94  N.  W.  568.  The  plaintiff  is 
not  entitled  to  recover  because  she  is  not 
within  any  of  the  classes  designated  by  the 
law,  nor  is  she  an  heir  or  legatee  who  may 
take.  Schmidt  v.  Ass'n,  supra;  Smith  ▼.  Mac- 
cabees, supra. 

From  what  has  already  been  said  It  is  ap- 
parent that  the  Intervener,  as  the  adminis- 
tratrix of  the  estate  of  Comens,  was  rightly 
permitted  to  show  that  the  plaintiff  was  not 
entitled  to  the  insurance,  and  that  as  ad- 
ministratrix she  was  entitled  to  it  See  cases, 
supra. 

The  decree  of  the  district  court  is  right  In 
all  respects,  and  it  is  affirmed. 

Affirmed. 


MOTZ  V.  SHEETS  et  al. 
(Supreme  Court  of  Iowa.    Oct  25,  1900.) 

1.  Fraudulent  Convbtances  (J  165*)— Pab- 

TICIPATIOR  or  G&ANTEE  IN  FSAUDniJCMT  IN- 
TENT. 

A  conveyance  and  transfer  of  property  to 
defraud  creditors  will  not  be  set  aside,  the  pur- 
chaser having  paid  practically  full  value,  and 
not  having  participated  in  the  fraudulent  intent, 
or  had  knowledge  thereof,  or  of  focts  that  would 
put  a  prudent  person  on  inquiry. 

[EM.  Note. — For  other  cases,  see  Fraodnlent 
Conveyances,  Cent  Dig.  H  494,  618;  Dec  Dig. 
§  165.*] 

2.  FRAunuLENT  Conveyances  (J  282*)— Par- 
ticipation IN  Fraudulent  Intent— Bub- 
den  OF  Pboop. 

Plaintiff,  in  an  action  to  set  aside  .a  fraud- 
ulent conveyance,  has  the  harden  of  proof  aJi 


•For  other  cue*  ate  urn*  topic  and  lectloa  NUMBER  la  Deo.  A  Am.  Die*.  1907  to  data.  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Iowa) 


HOTZ  ▼.  SHEETS. 


906 


to  participation  in  tlie  frandulent  intent  hj  ttte 
srantee  Wno  paid  practically  full  value. 

[Ed.  Note.— For  other  cases,  see  Fraudulent 
Conveyances,  Cent  Dig.  U  817,  818 ;  Dec  Dig. 

&  FRAUDULEirr  COnVETANCKS  (I  301*)— Pab- 
TICIPATION  IN  FBACOULENT  INTENT  — EVI- 
DKNCE. 

Evidence,  In  an  action  to  set  aside  a  fraud- 
nlent  conveyance,  held  insufficient,  as  against 
tlie  ixwitive  testimony  of  defendant,  who  paid 
practically  full  value,  to  sustain  plaintiff's  bur- 
den of  proof  as  to  participation  by  defendant  in 
the   frandulent   intent. 

[Ed.  Note. — For  other  cases,  see  Fraudulent 
Conveyances,  Dec.  Dig.  {  301.*] 

Appeal  from  District  Court,  Guthrie  Coun- 
ty; J.  H.  Applegate,  Judge. 

Suits  to  set  aside  certain  deeds  and  the 
transfer  of  certain  shares  of  bank  stock. 
There  was  a  judgment  dismissing  the  peti- 
tions.   The  plalntilt  appeals.    Affirmed. 

Sayles  &  Taylor,  for  appellant  J.  D. 
Brown,  J.  E.  Batschelet,  and  Wilson  &  Al- 
bert, for  appellees. 

SHEKWIN,  J.  The  plaintiff  is  the  admin- 
istrator of  the  estate  of  Alfred  Sheets,  and 
as  such  administrator  brought  an  action  to 
set  aside  a  deed  from  Alfred  Sheets  to  M.  M. 
Sheets,  and  a  deed  of  the  same  land  from 
M.  M.  Sheets  to  W.  A.  Sheets.  The  plaintiff 
also  brought  another  action  against  M.  M. 
Sheets  alone,  to  set  aside  the  transfer  of  cer- 
tain shares  of  stock  in  the  First  National 
Bank  of  Linevllle,  Iowa,  for  which  Alfred 
Sheets  had  paid,  but  which  were  in  fact  is- 
sued to  M.  M.  Sheets.  The  conveyance  of 
the  land  and  the  transfer  of  the  stock  were 
alleged  to  be  fraudulent  as  to  the  creditors 
of  Alfred  Sheets. 

The  principal  facts  are  substantially  as  fol- 
lows: Alfred  Sheets  had,  for  many  years 
prior  to  the  transactions  involved  herein, 
been  the  owner  of  60  shares  of  the  capital 
stock  of  the  Bank  of  Linevllle,  and  owned 
said  stock  at  the  time  of  his  death.  Line- 
vllle Is  in  Wayne  county,  and  for  some  15 
or  more  years  before  bis  death  Alfred  Sheets 
lived  in  Guthrie  county  where  the  defendant 
M.  M.  Sheets  also  resided.  The  Bank  of 
Linevllle  became  insolvent  and  In  June,  1004, 
a  receiver  was  appointed  therefor.  An  as- 
sessment of  the  stockholders  became  neces- 
sary, and  on  the  22d  of  September,  1904,  the 
receiver  filed  In  the  Wayne  district  court  an 
application  for  an  assessment  of  the  stock. 
Notice  of  such  application  5vas  served  on  Al- 
fred Sheets  In  Guthrie  county  on  the  23d 
.  day  of  Septemlwr,  1004,  requiring  him  to  ap- 
pear In  the  district  court  of  Wayne  county 
on  the  3d  day  of  October.  On  the  10th  day 
of  October,  1904,  the  court  ordered  an  as- 
sessment of  60  per  cent,  of  the  face  value  of 
the  stock.  Another  assessment  of  60  per 
cent,  was  made  later,  and  this  proposed  as- 
sessment notice  was  served  on  Alfred  Sheets 
in  Guthrie  county  on  the  1st  of  March,  1905. 


On  September  14,  1904,  Alfred  Sheets  and 
his  wife  conveyed  to  M.  M.  Sheets  30  acres 
•ot  land,  for  which  he  paid  full  value.  The 
payment  therefor  being  made  some  time  in 
October  of  the  same  year,  M.  M.  Sheets  con- 
veyed this  land  to  his  son  and  codefendaut  in 
February,  1900,  and  the  two  conveyances  are 
the  ones  sought  to  be  set  aside.  In  October, 
1904,  M.  M.  Sheets  bought  the  First  National 
Bank  stock  of  his  father,  and  paid  him  full 
value  therefor,  although  a  certificate  of  stodc 
did  not  issue  to  M.  M.  Sheets  until  November 
18,  1904.  The  trial  court  found  that  the  con- 
veyance of  the  land  in  question  and  the  trans- 
fer of  the  bank  stock  were  made  with  Intent 
on  the  part  of  Alfred  Sheets  to  defraud  his 
creditors.  But  it  was  also  found  that  M.  M. 
Sheets  did  not  participate  in  such  fraudulent 
Intent,  and  that  he  paid  practically  the  full 
value  of  the  land  and  bank  stock. 

The  only  question  for  our  determination  is 
whether  M.  M.  Sheets  had  knowledge  of  his 
father's  fraudulent  Intentions  and  participat- 
ed therein,  or  had  knowledge  of  facts  that 
would  put  a  prudent  person  on  inquiry,  when 
he  bought  and  i>aid  for  said  property.  That 
M.  M.  Sheets  knew  that  the  Bank  of  Line- 
vllle was  In  financial  straights  in  June,  1904, 
immediately  before  the  appointment  of  a  re- 
ceiver therefor  cannot  be  seriously  question- 
ed. That  he  knew  of  the  appointment  of  the 
receiver  soon  after  it  was  made  is  also  prac- 
tically undisputed.  But  be  says  that  he  did 
not  know  the  extent  of  the  bank's  liability,  or 
its  true  condition  until  long  after  his  pur- 
chases were  made.  That  when  he  was  at  a 
stockholders'  meeting  in  the  bank  at  Linevllle 
in  May  or  June,  1904,  which  was  at  the  time 
of  the  organization  of  the  First  National 
Bank  by  the  stockholders  in  the  Bank  of 
Linevllle,  he  understood  that  $10,000  would 
straighten  out  the  affairs  of  the  latter  bank, 
and  that  a  note  for  said  amount  bad  been 
given  by  the  cashier  of  the  bank.  It  Is  not 
seriously  claimed  that  an  assessment  of  the 
stock  was  thought  necessary  or  discussed  at 
that  meeting,  and  there  is  no  evidence  tend- 
ing to  show  that  M.  M.  Sheets  knew  any- 
thing about  the  necessity  for  such  an  assess- 
ment or  that  it  would  be  made  until  notice 
thereof  was  served  on  bis  father.  As  we 
have  heretofore  said,  two  assessments  were 
made  by  the  district  court  of  Wayne  county, 
the  first  in  October,  1904,  and  the  second 
early  In  1006.  Notice  of  the  first  assessment 
was  served  on  Alfred  Sheets  on  the  23d  of 
September,  1904,  and  of  the  second  one  on 
the  1st  day  of  March,  1905. 

It  is  claimed  by  the  appellant  that  M.  M. 
Sheets  knew  of  the  service  on  his  father  of 
the  first  notice  soon  after  it  was  made,  and 
before  he  had  paid  for  the  land,  and  that  be- 
cause of  such  knowledge  the  district  court 
erred  In  its  findings.  M.  M.  Sheets  lived 
with  his  father  at  the  time  of  all  of  the  trans- 
actions involved  herein.    His  father  was  then 


•For  other  easei  ■••  urn*  topio  uad  lecUon  NTUHBBR  In  Dee.  ft  Am.  Digs.  1107  to  data,  *  Reporter  Indexes 


Digitized  by  LjOOQ  l€ 


906 


122  MOBTHWESTBRN  REPORTER. 


(Iowa 


past  80  years  of  age.  He  was  about  60,  and 
a  business  man  of  at  least  considerable  ex- 
perience. It  Is  strange  that  he  did  not  learn 
of  the  first  assessment,  but  be  says  that  he 
did  not,  and  that  the  first  knowledge  be  bad 
of  any  assessment  was  when  the  notice  of 
March,  1905,  was  served.  While  some  of  the 
circumstances  tend  to  discredit  the  positive 
testimony  of  Mr.  Sheets  on  this  subject,  we 
are  constrained  to  bold  that  they  are  not  of 
sufficient  weight  to  overcome  such  testimony. 
If  he  paid  full  value  for  the  property  he 
bought  of  his  father  without  knowledge  of 
the  true  condition  of  the  Bank  of  LlneviUe, 
and  without  knowledge  that  bis  father  could 
be  or  would  be  called  upon  to  pay  an  assess- 
ment for  the  benefit  of  the  creditors  of  the 
bank,  he  should  be  protected.  Under  the  Is- 
sues the  burden  of  proof  is  upon  the  plain- 
tlir,  and  we  think  he  has  failed  In  this  re- 
spect. 
Affirmed. 


HILLIEER  et  al.  v.  NORTHWEST 
THRESHER  CO. 
(Supreme  Court  of  Iowa.    Oct.  26,  1909.) 

1.  Principai.  and  Aqekt  (J  81*)— Right  to 
Commissions. 

Under  a  written  contract  employmg  plain- 
tiff as  defendant's  agent  for  the  sale  of  thresh- 
ing machinery  in  A.,  and  tributary  territory, 
for  the  season  ending  November  1,  1906,  ex- 
cept as  to  unsettled  business  arising  under  the 
agreement,  plaintiff  was  not  entitled  to  recover 
commissions  on  a  sale  made  by  another  agent 
after  November  1st  to  a  customer  who  had 
formerly  lived  within  8  miles  of  A.,  but  who 
in  the  spring  of  1900  moved  to  another  part  of 
the  state,  more  than  100  miles  therefrom. 

[Ed.  Note.— For  other  cases,  see  Principal  and 
Agent,  Cent.  Dig.  |$  194-214;  Dec.  Dig.  }  81.»] 

2.  Principal  and  Agent  (§  81*)— Compensa- 
tion  op  Agent — Oommissions. 

Where  an  agency  contract  for  the  sale  of 
threshing  machinery  contemplated  a  cutting  of 
prices  and  declared  that  no  commission  should 
be  paid  on  a  sale  unless  the  price  exceed  net 
prices  specified,  plaintiff  was  not  entitled  to 
commissions  on  a  sale  made  by  another  agent 
to  one  claimed  to  be  plaintiff's  customer,  at 
the  price  which  was  less  than  the  net  price  so 
specified. 

[Ed.  Note.— For  other  cases,  see  Principal  and 
Agent,  Cent.  Dig.  |{  194-214 ;    Dec.  Dig.  §  81.»] 

3.  Principai,  and  Agent  (§  81*)  — Commis- 
sions—Contract. 

An  agency  contract  for  sale  of  threshing 
machinery  provided  that  when  other  property 
was  taken  in  exchange,  no  commission  should 
be  allowed,  unless  the  net  proceeds  of  the  prop- 
erty taken  in  exchange,  added  to  the  property 
and  notes  received  from  the  purchaser,  should 
exceed  the  defendant's  net  price  specified.  Held 
that,  where  another  agent  sold  certain  prop- 
erty in  plaintiff's  alleged  territorv,  and  in  part 
payment  took  machinery  in  exchange,  and  in 
t>oth  instances  the  net  amount  received  was 
less  than  the  net  prices  specified  for  the  new 
machinery  sold,  plaintiff  was  not  entitled  to 
any  commissions  under  bis  contract. 

[Ed.  Note. — For  other  cases,  see  Principal  and 
Agent.  Cent.  Dig.  §$  194-214 ;   Dec  Dig.  {  81.*] 


Appeal  from  District  Court,  Woodlnuy 
County;  William  Hutchinson,  Judge. 

This  is  an  action  in  equity  on  a  contract 
The  relief  prayed  is  in  the  nature  of  a  si>e- 
clfic  performance.  There  was  a  decree  for  the 
plaintiff,  and  the  defendant  appeals.  Re- 
versed. 

Sullivan  &  Grlflln,  for  appellant  Wright 
Call  &  Sargent  for  appellees. 

EVANS,  C.  J.  The  plaintiffs  consist  of  a 
copartnership  and  its  two  members.  Inas- 
much as  the  business  Involved  was  transacted 
by  the  senior  partner,  we  will,  for  conven- 
ience, refer  to  him  as  the  plaintiff.  The 
plaintiff  was  an  owner  of  a  repair  and  ma- 
chine shop  at  Akron,  Iowa.  The  defendant 
was  a  manufacturer  of  threshing  machines 
and  engines.  In  December,  1905,  a  written 
contract  was  entered  into  between  the  par- 
ties, whereby  the  plaintiff  was  appointed  as 
the  agent  of  the  defendant  for  the  sale  of 
threshing  machines  and  engines  in  the  "town 
of  Akron  and  trade  tributary  thereto,  in  the 
state  of  Iowa,  for  the  season  ending  Novem- 
ber 1,  1906,  except  as  to  the  unsettled  busi- 
ness arising  under  this  agreement"  It  was 
provided  therein  that  upon  all  sales  made 
by  the  plaintiff  he  should  receive  a  commis- 
sion in  the  form  of  a  discount  of  23  per  cent 
off  from  certain  specified  list  prices,  provided, 
however,  that  the  net  amount  to  be  received 
by  the  company  should  not  be  less  in  any  case 
than  certain  specified  net  prices.  The  con- 
tract contemplated  and  provided  that  the 
season  should  close  November  1,  1906,  except 
for  the  settlement  of  unfinished  business. 
The  petition  alleged  that  In  November,  1906, 
the  defendant  through  one  Peterson,  sold 
within  his  territory  an  engine  to  Fred  and 
Sol  Lee,  and  an  engine  and  separator  and 
wind  stacker  to  Dave  Nelson,  and  that  the 
plaintiff  was  entitled  to  a  commission  on 
such  sales.  By  an  amendment  it  was  averred 
that  the  sales  were  made  by  Peterson  by  re- 
ducing the  price  without  the  consent  of  the 
plaintiff,  and  also  that  Peterson  Induced  the 
customers  to  delay  the  purchase  until  after 
November  1st  for  the  purpose  of  defeating 
the  plaintiff  In  his  commission,  and  it  was 
averred  that  the  sales  were  in  fact  consum- 
mated as  a  result  of  the  agency  of  the  plain- 
tiff. The  defendant  in  its  answer  denied 
these  allegations,  and  justified  all  Its  acts 
under  the  terma^  of  the  contract 

As  to  the  sale  of  the  separator,  the  evi- 
dence developed  a  state  of  facts  which  were 
not  contemplated  by  the  pleader.  This  sep- 
arator was  sold  by  Peterson  to  Nelson,  not 
in  November,  but  In  July,  confessedly  during 
the  life  of  plaintiff's  contract.  Nelson,  the 
purchaser,  had  formerly  lived  about  8  miles 
from  Akron,  but  In  the  spring  of  1906,  he 
moved  to  Spirit  Lake  which  was  100  miles 
distant  from  Akron.    He  had  been  eng.ige<l 


•For  other  cases  ste  lam*  topic  and  section  NUMBER  tn  Dec.  ft  Am.  Dig*.  1907  to  date,  ft  Reporter  IndezM 


Digitized  by  VjOOQ  l€ 


Iowa) 


HILLIKBB  T.  NORTHWEST  THRESHER  CO. 


907 


In  the  threshing  business  for  many  years  In 
Plymouth  county,  and  had  own^  successive 
outfits,  two  of  which  had  been  sold  to  blm 
by  Peterson  In  former  years.  He  was  well 
known  to  Peterson,  as  well  as  to  the  plaintiff. 
Peterson  sold  to  him  the  separator  In  ques- 
tion at  Spirit  Lake.  In  pursuance  of  the  or- 
der of  sale  It  was  delivered  later  at  Alcester, 
S.  D.  The  claim  of  the  plaintiff  by  his  tes- 
timony Is  that  he  had  solicited  Nelson  as  a 
customer  for  several  years  successively,  but 
bad  never  been  able  to  make  a  sale  to  him. 
In  the  summer  of  1906  he  spoke  to  Peterson 
about  him  as  a  customer,  and  was  Informed 
by  Peterson  that  he  lived  at  Spirit  Lake. 
Peterson  said  he  would  go  up  to  see  him. 
The  plaintiff  told  Peterson  to  protect  him  In 
his  commission,  which  Peterson  agreed  to  do. 
This  Is  denied  by  Peterson.  Accepting  the 
plaintiff's  statement  of  the  facts  at  this  point, 
we  see  no  way  of  recovery  for  him.  He  con- 
cedes that  Spirit  Lake  was  outside  of  his  ter- 
ritory. But  he  relies  upon  this  verbal  ar- 
rangement with  Peterson.  Peterson  had  no 
authority  to  modify  the  contract  sued  on. 
It  Is  not  claimed  that  be  did  modify  It.  The 
only  way  that  plaintiff  can  avail  himself  of 
this  verbal  arrangement  with  Peterson  Is  to 
say  that  Peterson  thereby  became  his  agent 
for  the  making  of  such  sale,  and  that  he  Is 
entitled  to  claim  the  contract  as  his  own. 
He  also  complains  that  Peterson  made  the 
sale  at  a  reduced  price  without  his  consent, 
and  at  a  price  which  he  himself  was  not  per- 
mitted to  make.  These  two  positions  are  In- 
consistent, and  the  plaintiff  does  not  stand 
consistently  upon  either  one.  It  is  undisput- 
ed that  the  sale  made  by  Peterson  at  this 
time  was  for  an  amount  which  was  $6  less 
than  the  net  price,  and  that  thereby  all  the 
discount  had  been  given  to  the  purchaser. 
If,  therefore,  the  plaintiff  claims  the  benefit 
of  the  contract  as  made,  he  Is  barred  from 
claiming  any  commission  by  the  very  terms  of 
his  contract  If  he  can  complain  of  the  re- 
duction of  price  without  his  consent.  It  must 
be  upon  the  theory  that  Peterson  was  acting 
for  the  company  In  making  such  sale.  But 
the  contract  sued  on  In  no  sense  forbade  the 
company  to  make  sales  In  such  territory,  nor 
did  It  permit  the  plaintiff  to  make  any  at 
such  place.  If  reliance  be  placed  upon  the 
verbal  arrangement  with  Peterson  as  a  new 
contract,  such  Is  not  the  contract  sued  on,  nor 
is  it  referred  to  In  any  manner  In  the  plead- 
ings. Suit  Is  brought  upon  the  written  con- 
tract, and  It  Is  not  claimed  In  the  plead- 
ings that  It  was  ever  modified.  Nor  would 
there  be  any  warrant  for  holding  that  Peter- 
son had  any  authority  to  modify  It.  The  trial 
court  allowed  the  plaintiff  such  a  commission 
upon  this  sale  as  would  have  been  earned  If 
the  plaintiff  had  sold  the  separator  for  the 
full  list  price.  Under  the  contract  neither 
party  was  required  to  maintain  the  list  price. 
On  the  contrary,  the  contract  contemplated  a 
cutting' of  prices,  and  expressly  provided  that 


there  should  be  no  commission  on  the  sale  un- 
less the  price  received  exceeded  the  net  sum 
specified.  There  is  no  ground  in  the  evidence 
for  holding  that  either  plaintiff  or  Peterson 
could  have  sold  the  separator  In  question  to 
Nelson  for  a  dollar  more  than  was  finally 
bargained  for.  We  think,  therefore,  that  the 
plaintiff  failed  to  show  a  right  of  recovery  on 
this  item. 

2.  On  November  5,  1906,  Peterson  made  an 
exchange  with  Nelson  of  a  new  engine  for 
an  old  one.  The  list  price  of  the  new  cDglne 
was  52,650.  The  net  price  was  $l,972.uO. 
Peterson  received  for  it.  In  addition  to  tlie 
old  engine,  $1,400.  The  company  realized 
out  of  the  old  engine  a  net  amount  of  $5Uo. 
So  that  the  sum  actually  realized  was  $l,9(io 
for  the  new  engine.  The  trial  court  fuuud 
that  the  plaintiff  was  entitled  to  recover  the 
difference  between  the  net  price  and  the  list 
price.  The  claim  and  argument  on  behalf 
of  plaintiff  is  that  the  plaintiff  was  prevent- 
ed from  selling  this  engine  to  Nelson  at  the 
list  price  because  of  this  reduction  of  price. 
There  Is  no  basis  In  the  testimony  for  this 
argument,  except  the  natural  inference  that 
no  purchaser  would  pay  a  larger  price  for  an 
article  if  he  could  purchase  it  for  a  lesser 
price.  Plaintiff's  claim  in  his  testimony  was 
that  he  had  solicited  Nelson  as  a  purchas- 
er for  several  years  successively,  but  had 
never  been  able  to  sell  him  anything.  He 
had  no  negotiations  pending  with  Nelson  at 
the  time  his  contract  terminated,  unless  It 
can  be  found  from  the  following  statement 
In  his  testimony :  "In  a  way  he  promised  to 
buy  an  engine  of  me.  He  said  It  was  getting 
late,  and  he  couldn't  get  it  here  In  time. 
But  he  said  'We  will  have  It  next  year.'  We 
talked  about  the  terms  of  trading  in  bis  oth- 
er machinery,  but  we  never  agreed."  It  is 
manifest  from  this  testimony  that  the  plain- 
tiff had  no  expectation  of  making  a  trade  with 
Nelson  until  "next  year,"  and  he  had  no 
contract  of  agency  for  next  year.  The  sea- 
son was  deemed  closed  on  November  1st,  and 
the  contract,  by  Its  terms,  expired  on  that 
date.  The  right  of  the  defendant  to  deal 
with  Nelson  on  November  6th  was  as  com- 
plete as  It  would  have  been  on  any  subse- 
quent date.  It  Is  claimed  at  this  point,  how- 
ever, that  Peterson  Induced  Nelson  to  wait 
until  after  November  1st,  for  the  very  pur- 
pose of  defeating  the  plaintiff.  The  evidence 
docs  not  warrant  this  claim,  nor  is  there  any 
evidence,  direct  or  circumstantial,  that  would 
warrant  the  belief  that  the  plaintiff  could 
have  traded  with  Nelson  at  any  better  price 
than  was  done  by  Peterson.  The  season  was 
over.  Nelson  was  an  experienced  thresher 
and  purchaser.  He  doubtless  knew  the  ad- 
vantages of  price  to  be  obtained  by  purchase 
at  the  close  of  the  season  Instead  of  at  the 
beginning.  He  had  known  Peterson  for 
years,  and  had  twice  before  purchased  ma- 
chinery from  him.  He  had  never  purchased 
anything  substantial  from  the  plaintiff,    lie 


Digitized  by  VjOOQ  l€ 


908 


122  NORTHWESTBRM  REPORTEB. 


(loira 


wrote  to  Peterson,  and  It  was  In  response 
to  his  letter  that  Peterson  visited  him  and 
consummated  his  trade.  His  testimony  Is 
clear  that  he  was  not  contemplating  any  pur- 
chase from  the  plaintiff,  and  that  he  would 
not  have  purchased  from  him  at  the  prices 
qiioted.  No  fraud,  either  actual  or  legal, 
was  therefore  perpetrated  upon  the  plaintiff. 
It  may  be  noted  here  that  the  contract  ex- 
pressly provided  that  when  other  property 
was  taken  In  exchange,  no  commission  should 
be  allowed  upon  such  property,  and  tbat  no 
commission  should  be  allowed  upon  such 
sale  unless  the  net  proceeds  of  such  property 
received  in  exchange  added  to  the  money  and 
notes  received  from  the  purchaser,  should 
exceed  the  specified  net  price  to  the  compa- 
ny. In  the  absence  of  fraud,  this  provision 
alone  would  preclude  the  plaintiff  from  re- 
covering any  commission  upon  this  sale, 
even  though  It  bad  been  consummated  during 
the  life  of  the  contract  We  are  of  the  opin- 
ion that  the  plaintiff  Is  entitled  to  nothing 
on  this  branch  of  the  case. 

8.  On  the  same  date  that  Peterson  made 
the  trade  with  Nelson  be  made  a  similar 
trade  with  one  Fred  Lee,  taking  an  old  en- 
gine in  exchange  and  receiving  $1,400  of  dif- 
ference. The  amount  realized  on  the  old  en- 
gine was  much  less  than  the  amount  realiz- 
ed on  Nelson's  old  engine,  and  the  net  pro- 
ceeds of  the  sale  were  more  than  $200  below 
the  net  price  specified  in  the  contract  sued 
on.  It  Is  claimed  by  plaintiff  that  he  had 
talked  with  Fred  Lee,  but  more  particularly 
with  Sol  Lee.  Sol  Lee  was  not  a  purchaser, 
but  signed  the  notes  of  Fred  Lee  as  surety. 
Fred  Lee  testified  that  he  never  had  talked 
with  the  plaintiff  on  the  subject  of  buying 
an  engine  from  him,  and  that  he  never  knew 
that  the  plaintiff  was  agent  for  such  engines 
until  after  he  had  purchased  from  Peterson. 
No  negotiations  were  pending  between  him 
and  the  plaintiff,  and  he  did  not  contemplate 
a  purchase  from  him  at  any  time.  The  two 
trades  made  by  Peterson  were  made  at  Chats- 
worth,  which  Is  located  about  7  miles  from 
Akron  and  6  miles  from  Hawarden,  where 
defendant  had  another  agency.  The  plain- 
tiff makes  the  same  claim  of  fraud  on  the 
part  of  Peterson  with  reference  to  the  sale 
to  Lee  as  has  already  been  noticed  In  con- 
nection with  the  Nelson  claim,  but  such 
claim  is  not  sustained  by  the  evidence.  Much 
of  what  we  have  already  said  in  the  preced- 
ing division  Is  applicable  here.  We  are  un- 
able to  see  merit  In  plaintiff's  claim  on  this 
item.  One  other  claim  sued  on  was  disal- 
lowed by  the  trial  court,  and  we  have  no 
occasion  to  consider  it  We  are  satisfied 
that  the  defendant  acted  within  Its  rights 
under  Its  contract 

The  plaintiff  has  no  Just  ground  of  com- 
plaint under  this  record.  The  decree  entered 
below  must  therefore  be  reversed. 


HODGES  v.  COLFAX  CONSOL.  COAL  CO. 
(Supreme  Court  of  Iowa.    Oct.  26,  1909.) 

1.  MASTEB  and  SEBVAKT  (i  241*)— INJUKIKS 
TO    SeBVANT— -CONTBIBTJTOBY    NEaLIQERCE. 

Where,  because  of  an  accumulation  of 
damps  or  foul  air  in  defendant's  coal  mine,  the 
mule  driven  by  plaintiff  could  not  see  and  slow- 
ed up,  and  plaintiff,  to  avoid  being  caught  be- 
tween the  mule  and  the  car.  Jumped  and  was 
injured,  bis  failure  to  properly  sprag  the  car 
was  not  contributory  negligence;  it  not  being 
necessarily  the  proximate  cause  of  tlie  injuiy. 
[Ed.  Note. — For  otiier  cases,  see  Master  and 
Servant,  Dec.  Dig.  §  241.*] 

2.  Masteb  and  Sebvaht  (|  288*)— Iwjubim 
TO  Servant— Assumption  of  Risk— Ques- 
tions   FOB   JUBT. 

In  a  servant's  action  for  injuries  in  a  coal 
mine,  whether  plaintiff  assumed  the  risk  incident 
to  chan^  conditions  in  the  ventilation  hM 
for  the  ]ury. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  U  1068-1088;  Dec  Dig. 
{  288.*] 

Appeal  from  District  Court,  Jasper  Coun- 
ty;  W.  G.  Clements,  Judge. 

Suit  at  law  to  recover  damages  for  person- 
al Injury.  At  the  close  of  the  plaintiffs  evi- 
dence the  court  directed  a  verdict  for  the  de- 
fendant, and  rendered  a  Judgment  on  said 
verdict  against  the  plaintiff  for  cost  The 
plaintiff  appeals.    Reversed. 

H.  C.  Evans  and  O.  P.  Meyers,  for  appel- 
lant   Ryan  &  Ryan,  for  appellee. 

SHERWIN,  J.  The  plaintiff  was  a  driv- 
er In  the  defendant's  mine.  He  was  taking 
two  loads  of  coal  out  through  the  entry 
known  as  the  "eighth  east  entry"  at  the  time 
the  injury  complained  of  was  received.  He  al- 
leged in  his  petition.  In  substance,  that  the  de- 
fendant had  neglected  to  furnish  blm  a  safe 
place  to  work,  and  had  neglected  to  warn 
him  of  the  danger  In  using  said  eighth  east 
entry.  He  alleged  the  general  defective  con- 
dition of  the  entry,  and,  in  addition  thereto, 
tbat  It  was  subject  to  damps  or  foul  air 
which  entered  It,  from  numerous  dead  rooms 
connecting  with  said  entry.  The  defendant 
pleaded  a  general  denial,  the  assumption  of 
risk  on  the  part  of  the  plaintiff,  and  con- 
tributory negligence. 

The  testimony  shows  conclusively  tbat  the 
plaintiff  had  started  out  to  the  shaft  with 
two  loads  of  coal,  each  load  weighing  from 
1,000  to  1,800  pounds,  that  the  loads  were 
drawn  by  a  good  sized  mule,  and  that  the 
plaintiff  was  driving  on  the  end  of  the  for- 
ward car  when  one  foot  resting  on  a  4-Inch 
projection  on  the  front  end  of  the  car,  the 
other  foot  resting  on  the  chain  to  which  the 
mule  was  attached,  and  with  one  of  his 
hands  resting  on  the  load  of  coal  and  the  oth- 
er on  the  rump  of  the  mnle;  that  there  was 
a  grade  of  some  25  or  40  per  cent  down 
which  he  had  to  pass  to  reach  the  shaft; 
that,   before   starting  down  the  grade,   he 


•For  othar  cues  see  ume  teplo  ana  section  NUMBKS  In  Dec.  ft  Am.  Digs.  U07  to  date,  *  RaporUT  Indue* 


Digitized  by  VjOOQ  l€ 


Iowa) 


WISBOABVBB  *  BBYNABD  r.  CHICAGO,  B.  I.  ft  P.  BY.  CO. 


009 


Bpragged  one  of  the  wheels  of  his  trip,  and 
only  one.  The  plaintiff  teBtlfled  that,  after 
he  had  started  down  the  grade  and  while 
passing  some  of  the  abandoned  rooms  con- 
necting with  the  entry  he  was  using,  he  was 
partially  overcome  by  damps  or  fool  air; 
that  his  lamp  was  greatly  dimmed  by  said 
damps,  so  much  so  that  he  was  unable  to  see 
perfectly  what  was  ahead  of  blm,  and  so 
much  so  that  the  mule  could  not  see  the 
road,  and  slowed  up  until  It  bad  nearly  stop- 
ped ;  that  the  plalntUTs  position  on  the  front 
end  of  the  car  was  such  that  he  was  In  dan- 
ger of  being  caught  between  the  car  and  the 
mule,  and  he  was,  In  fact,  partially  thrown 
from  his  seat;  that  when  he  realized  that 
be  could  not  maintain  his  seat,  he  Jumped  to 
save  himself,  and  alighted  on  a  pile  of  ref- 
use which  the  defendant  had  allowed  to  ac- 
cumulate beside  the  track,  and,  on  account 
of  the  inequality  of  the  surface  of  the 
ground  at  that  point,  one  of  liis  arms  was 
thrown  under  the  advancing  cars  and  crush- 
ed. Inflicting  the  injury  of  which  he  com- 
plains. 

There  was  testimony  tending  to  show  that 
tbe  plaintiff  had  neglected  to  properly  sprag 
the  cars  before  starting  down  the  grade. 
But,  however  this  may  be,  If  bis  version  of 
the  cause  of  the  accident  had  been  accepted 
by  the  jury,  if  submitted  to  them,  his  fail- 
ure to  properly  sprag  the  cars  would  not 
constitute  contributory  negligence.  Such  fail- 
ure under  the  testimony  given  by  the  plain- 
tiff would  not  necessarily  be  the  proximate 
cause  of  the  Injury.  If  it  is  true  that  the 
particular  conditions  existing  at  the  time  of 
tbe  accident  were  caused  by  damps  or  foul 
air  which  the  defendant  had  permitted  to 
accumulate  in  the  entry  in  question,  the  fail- 
ure to  properly  sprag  the  cars  would  not 
necessarily  constitute  contributory  negligence 
In  this  case. 

It  is  contended  by  the  defendant  that  the 
plaintiff  knew  of  the  conditions  existing  in 
this  entry  for  at  least  three  days  before  the 
accident  occurred,  and  that,  because  of  such 
knowledge,  he  assumed  the  risk  Incidental  to 
Its  use.  There  might  be  force  to  this  conten- 
tion were  it  not  for  the  fact  that  there  was 
evidence  before  the  jury  tending  to  show  that 
np  until  the  night  Immediately  preceding  the 
accident  fresh  air  had  been  supplied  the 
eighth  cast  entry  by  passing  thereto  from  an 
adjoining  entry,  and  that  on  the  day  preced- 
ing the  accident  another  entry  had  been  open- 
ed which  diverted  the  fresh  air  which  had 
previously  gone  to  the  eighth  east  entry,  so 
that  on  the  morning  in  question  when  the 
plaintiff  went  to  work  the  conditions  in  the 
eighth  entry  were  materially  different.  The 
plaintiff,  of  course,  did  not  assume  the  risk 
of  conditions  of  which  he  knew  nothing,  and 
bence  it  cannot  be  said  as  a  matter  of  law 
that  there  was  no  liability  on  the  part  of  the 
defendant  for  injury  caused  by  such  chang- 


ed conditions,  if  In  fact  they  were  so  ca!ised, 
which  was  a  question  for  the  jury. 

Complaint  is  made  of  two  or  three  rulings 
on  the  Introduction  of  testimony,  but,  as  the 
case  must  go  back  for  a  new  trial  and  the 
same  rulings  are  not  likely  again  to  be  en- 
countered, it  is  not  necessary  to  discuss  them. 

There  was  error  in  directing  a  verdict  for 
the  defendant,  and,  because  thereof,  tbe  judg- 
ment must  be,  and  it  is,  reversed. 

Reversed. 


WISEJCARVER  &  REYNARD  v.  CHICAGO, 
R.  I.  &  P.  RY.  CO. 

(Supreme  Court  of  Iowa.    Oct  22,  1909.) 

1.  Removal  of  Oatjsm  (8  97*)— Effect— Ju- 
btsdicnon  to  rxndeb  judquxnt  fob 
Costs. 

An  action  was  brought  in  a  state  court, 
and  defendant  petitioned  for  remoyal  to  a  fed- 
eral court,  which  was  denied.  Jndgment  for 
plaintiff  was  reversed  on  appeal,  on  the  ground 
that  the  lower  court  erred  la  denying  Uie  re- 
moval, and  the  cause  was  remanded  with  direc- 
tion to  proceed  in  a  manner  not  inconsistent 
with  the  opinion  of  the  Supreme  Court.  Held, 
that  the  state  court  had  Jurisdiction  to  render 
judgment  for  costs  which  accrued  in  that  court, 
though  the  petition  for  removal  filed  before  the 
accrual  of  costs,  or  the  major  part  of  them, 
should  have  been  sustained. 

[Ed.  Note.— For  other  cases,  see  Removal  of 
Causes,  Dec.  Dig.  i  97.*] 

2.  RiHOVAi.  OF  Causes  (|  97*)-7Bff«ct— Pbo- 
CEEDiNos  IN  State  CouBT. 

It  did  not  appear  that  the  case  had  been 
tried  in  the  federal  court,  nor  wag  there  any 
showing  of  a  Judgment  therein,  but  the  most 
that  could  be  said  was  that  the  action  was 
there  pending.  Beld  that,  until  final  determina- 
tion of  the  case,  no  order  should  be  made  in 
the  state  court  regarding  the  costs  which  had 
accrued  in  that  court,  and  that  a  motion  there- 
tofore made  was  premature. 
_[Ed.  Note.— For  other  cases,  see  Removal  of 
Causes,  Dec.  Dig.  §  97.*] 

Appeal  from  District  Court,  Jefferson  Coun- 
ty;  D.  M.  Anderson,  Judge. 

Appeal  from  an  order  denying  defendant's 
motion  to  tax  costs  to  plaintiff.    Afltoned. 

See,  also,  U7  N.  W.  961. 

Carroll  Wright,  J.  L.  Parrlsh,  and  Leggett 
&  McKemey,  for  appellant.  R.  J.  Wilson  and 
Crall  &  Crail,  for  appellee. 

DEEMER,  J.  In  the  year  1906  plaintiff 
brought  action  in  the  district  court  of  Jeffer- 
son county  against  the  defendant  to  recover 
damages  which  it  alleged  it  had  sustained  by 
reason  of  an  injury  to  a  horse  which  had 
been  shipped  over  defendant's  line  of  rail- 
road. The  defendant  appeared,  filed  answer, 
and  a  petition  for  removal  to  the  Circuit 
Court  of  the  United  States  on  the  ground  of 
diversity  of  citizenship.  This  petition  was 
denied  on  the  3d  day  of  December,  1906,  and 
thereafter  the  cause  came  on  for  bearing  at 
a  regular  term  of  the  district  court,  resuit- 


*Tot  otlier  cues  ae*  Mm*  topic  and  taction  NUUBSB  in  Dec.  *  Am.  Dl(i.  UOT  to  date,  *  Reporter  IndaxM 


Digitized  by 


Google 


910 


122  NORTHWESTERN  REPORTER. 


(Iowa 


Ing  III  a  verdict  and  Judgment  for  plaintiff  In 
the  sum  of  $1,000  and  costs  amounting  to 
$484.60.  Thereafter  the  cause  was  appealed 
to  this  court,  resulting  In  a  reversal,  because 
the  court  below  erred  in  overruling  defend- 
ant's petition  for  removal,  and  the  cause  was 
remanded  to  the  district  court  of  Jefferson 
county.  See  117  N.  W.  961.  The  cause  was 
remanded  without  direction,  although  the 
procedendo  of  course  ordered  the  court  below 
to  proceed  In  said  case  in  a  manner  not  In- 
consistent with  the  opinion  of  this  court. 
Thereafter,  and  on  the  1st  day  of  February, 
1900,  defendant  filed  a  motion  aslcing  that 
the  judgment  theretofore  entered  be  canceled 
and  set  aside,  that  It  have  Judgment  against 
plaintiff  for  the  costs  of  said  action  in  the 
amount  above  stated,  and  that  the  cause  be 
transferred  for  trial  to  the  United  States  Cir- 
cuit Court  Plaintiff  resisted  this  motion  up- 
on many  grounds,  chief  among  which  were 
(a)  that  the  court  was  without  Jurisdiction 
to  do  more  than  order  a  transfer  of  the 
cause;  and  (b)  that  the  costs  attendant  up- 
on the  former  trial  should  abide  the  final 
Judgment  rendered  in  whatever  should  be  de- 
termined to  be  the  court  of  ultimate  trial  and 
decision.  The  trial  court  ordered  that  the 
case  be  transferred  to  the  tJnlted  States  Cir^ 
cult  Court;  that  the  Judgment  theretofore 
entered  against  the  defendant  be  set  aside, 
and  made  an  order,  concluding  as  follows: 
"It  is  further  ordered  by  the  court  that  the 
motion  of  the  defendant  for  Judgment  against 
the  plaintiffs  for  the  costs  of  the  trial  In  this 
court,  being  the  costs  of  witnesses,  court  offi- 
cers, and  other  fees  Incurred  upon  the  trial, 
following  the  overruling  of  defendant's  mo- 
tion to  transfer  to  the  federal  court,  be  and 
the  same  Is  hereby  overruled,  to  which  rul- 
ing the  defendant  at  the  time  duly  excepts, 
and  plaintiff  excepts  to  setting  aside  of  the 
Judgment  It  is  further  found  by  the  court 
that  this  is  a  proper  question  for  appeal  to 
the  Supreme  Court,  and  one  which  should  be 
passed  upon  by  that  court  and  this  order 
shall  be  considered  as  a  certificate  for  the 
talcing  of  such  appeal." 

The  appeal  is  from  the  latter  part  of  this 
i  order,  and  presents  two  questions  for  our 
consideration.  The  first  of  these  Is  the  juris- 
diction of  the  district  court  to  render  Judg- 
ment for  the  costs  made  therein  while  the 
case  Is  in  the  federal  Court  and  undetermin- 
ed; and,  second,  assuming  that  such  juris- 
diction exists,  should  such  order  be  made 
until  the  final  Judgment  is  rendered  by  the 
court  which  shall  finally  decide  the  case? 
As  to  the  first  proposition,  we  entertain  no 
doubt  of  the  jurisdiction  of  the  district  court 
to  render  Judgment  for  costs  which  accrued 
in  that  court,  even  though  It  should  finally 
bold  that  the  petition  for  removal  filed  before 
the  accrual  of  these  costs,  or  the  major  part 
of  them,  should  have  been  sustained.  The 
second  question  is  of  more  doubt;  but  we 
are  constrained  to  hold  that  until  the  final 
determination  of  the  case  no  order  should  be 


made  in  the  district  court  regarding  the  costs 
taxed  in  that  suit. 

It  does  not  appear  that  the  case  has  been 
tried  In  the  United  States  court  nor  is  there 
any  showing  of  a  judgment  therein.  More- 
over, it  does  not  appear  whether  a  motion  to 
remand  has  been  filed,  submitted,  or  deter- 
mined in  that  court  The  most  that  can  be 
said  for  the  record  Is  that  the  action  is  now 
pending  there.  It  may  be  that  this  case  will 
eventually  be  remanded  to  the  district  court 
of  Jefferson  county  for  trial,  and  in  tliat 
event  it  would  become  the  duty  of  the  court 
trying  that  case  to  make  a  proper  order  as 
to  costs.  If  defendant  in  such  event  were 
successful,  the  entire  costs  would  be  charged 
to  the  plaintiff.  If,  on  the  other  hand,  plain- 
tiff should  secure  the  verdict  the  costs  might 
either  be  apportioned  or  taxed  to  the  defend- 
ant Surely  this  would  be  true  as  to  some 
of  the  items  of  costs  which  were  taxed  as 
part  of  the  original  Judgment.  Defendant's 
motion  Inclnded  all  of  the  costs  of  the  action. 
In  no  event,  as  it  seems  to  us,  would  defend- 
ant t>e  entitled  to  have  the  costs,  made  before 
filing  the  petition  for  removal,  taxed  to  the 
plaintiff.  If  this  case  were  to  be  retried  in 
the  Jefferson  county  district  court,  and  the 
plaintiff  were  successful,  he  would  be  entitled 
to  all  costs,  save  those  growing  out  of  and 
relating  to  the  first  trial.  The  motion  to  tax 
the  costs  was,  as  It  seems  to  as,  premature, 
and  the  order  denying  it  must  be  sustained. 
All  this,  however,  should  be  without  preju- 
dice to  appellant's  right  to  renew  this  mo- 
tion, if  so  advised,  upon  the  final  determina- 
tion of  the  case. 

Our  conclusion  finds  some  support  in  Palm- 
er V.  Palmer,  97  Iowa,  454,  66  N.  W.  734.  In 
that  case  it  appeared  that  the  action  bad 
t)een  transferred  to  the  equity  docket  and  a 
hearing  had  upon  the  merits  resulting  in  a 
decree  against  the  plaintiff.  Upon  appeal  to 
this  court  It  was  determined  that  a  motion 
to  transfer  to  the  equity  docket  should  have 
been  overruled,  and  the  decree  was  reversed. 
The  case  was  again  tried  In  the  district  court 
as  a  law  action,  resulting  In  a  verdict  and 
final  Judgment  for  the  defendant  Upon  mo- 
tion the  district  court  taxed  all  the  coats,  in- 
cluding those  made  on  the  first  trial  of  the 
cause,  to  the  plaintiff.  Plaintiff  excepted  and 
appealed,  and  the  order  was  affirmed,  the 
court  saying:  "  *  ♦  »  We  think  it  has  al- 
ways been  the  practice  that,  when  one  trial 
has  been  had,  and  the  verdict  is  set  aside  by 
the  district  court  or  the  cause  reversed  in 
this  court  and  another  trial  is  had  in  the 
district  court,  tlie  costs  of  the  first  trial  fol- 
low those  of  the  last  In  the  case  at  bar  the 
final  result  showed  that  the  plaintiff  Institut- 
ed and  prosecuted  an  unfounded  claim,  and 
In  the  first  trial,  as  well  as  the  last  lie  was 
the  defeated  party,  and  the  order  requiring 
him  to  pay  the  cost  wtilch  accrued  in  the  dis- 
trict court  is  right" 

The  order  of  the  district  court  Is  therefore 
affirmed. 


Digitized  by  LjOOQIC 


Iowa). 


JACKSON  V.  CITY  OF  GRINNBLL. 


911 


JACKSON  V.  CIXT  OF  GRINNELI* 
(Supreme  Court  of  Iowa.     Oct  23,  1909.) 

1.  Appeal  and  Ebrob  (J  1042*)  —  Review — 
Harmless  Bbbob— Ebboreous  Ruunqs  on 
Pleadinqb. 

Where  the  original  iMtltion,  In  an  action 
for  injuries  on  a  detective  aidewallc,  alleged  that 
there  was  a  broken  board  in  the  sidewalk,  and 
that  one  of  the  parts  had  dropi)ed  below  the 
level  of  the  walk,  making  a  hole,  into  which  he 
slipped,  and  he  testified  that  he  stepped  on  a 
broken  board  which  turned  under  his  foot  and 
let  him  slip,  and  that  the  board  was  broken, 
and  that  it  was  an  old  break,  the  refusal  to 
strike  an  amended  petition,  alleging  that  he 
was  caused  to  fall  either  by  slipping  into  a 
hole  in  the  defective  walk,  which  hole  had 
been  caused  by  the  dropping  of  the  inner  end 
of  a  piece  of  broken  board  hanging  by  a  nail 
to  an  onter  stringer,  or  by  slipping  on  the  outer 
end  of  a  broken  board  which  held  to  the  string- 
er,  but  sloped  downward  toward  the  middle  of 
the  walk  where  it  was  broken  oCF  and  depressed 
below  the  general  level,  was  not  prejudicial. 

[Ejd.  Note. — For  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  {  1042.*] 

2.  MUWIOrPAL  OOBPOBATIONS  (J  807*)  —  De- 
rECnVB  STBEETS  —  CoSTBIBnTOBT  Nkgu- 
OEI7CE. 

A  pedestrian  who,  though  knowing  that  a 
sidewalk  was  defective,  believed,  and  as  an  ordi- 
narily prudent  person  had  a  right  to  believe,  that 
he  could  use  it  with  safety,  is  not  negligent  in 
failing  to  select  another  route  of  travel,  though 
there  were  better  walks  which  might  have  serv- 
ed his  purposes,  unless  in  the  light  of  the  cir- 
camstances  as  known  to  him  the  route  he  took 
was  imprudent. 

[Ed.  Note. — For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  i  1679:  Dec  Dig.  I 
807.*] 

3.  MUNICIPAt  COBPOBATIONS  (J  821*)  —  DE- 
FECTIVE Sidewalks  —  CoNTRiBUTOBT  Nsa- 

UGENCB— QnESTlON     FOR     JDBY. 

Whether  it  was  prudent  for  a  pedestrian 
to  use  at  night  a  defective  sidewalk  depends  on 
the  inferences  to  be  drawn  from  the  condition 
of  the  walk,  the  darkness  of  the  night,  the  ex- 
tent of  the  pedestrian's  knowledge  of  the  condi- 
tion, and  the  facts  proved,  which  should  ap- 
peal to  the  judgment  of  a  man  in  the  exercise 
of  ordinary  care,  and  the  Issue  is  for  the  jury. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  H  1755,  1766;  Dec. 
Dig.  {  821.*] 

4.  Tbiai.  (J  105*)— Reception  of  Evidenc*— 
Failttbe  to  Ob-tect— Instructions. 

Where  testimony  was  admitted  without  ol>- 
jection  or  exception,  it  was  proper  to  give  an 
instruction  pertinent  thereto. 

[Ed.  Note.— For  other  cases,  see  Trial,  Dec. 
Dig.  S  105.*] 

5.  Muwicepai,  Cobpobationb  (J  818*)  —  De- 
i-ECTivK  Sidewalks  —  Evidence  —  Aduissi- 

BIHTT. 

In  an  action  for  injuries  to  a  pedestrian  on 
a  defective  sidewalk,  it  is  proper  to  show  that, 
on  examination  soon  after  the  accident,  the  ma- 
terials of  the  walk  were  found  to  be  rotten,  as 
bearing  on  the  condition  of  the  walk  at  the 
time  of  the  accident,  and  on  the  question  wheth- 
er the  defect  had  existed  so  long  that  the  city 
by  reasonable  supervision  ought  to  have  dis- 
covered and  remedied  it. 

[Ed.  Note.— For  other  cases,  see  Municipal 
Corporations,  Cent  Dig.  {  1733:  Dec.  Dig.  { 
81&*] 


6.  New  Tbial  (S  104*)— Newly  Discovered 
Evidence— Cumulative  Evidence. 

It  is  not  error  to  refuse  a  new  trial  on 
the  ground  of  newly  discovered  evidence  which 
is  merely  cumulative. 

[Ed.  Note.— For  other  cases,  see  New  Trial, 
Cent  Dig.  H  218-220,  228;  Vec  Dig.  §  104.*] 

7.  New  Trial  (8  102*)- Newly  Discovered 
Evidence— Diligence. 

Where  no  good  reason  was  shown  why  al- 
leged newly  discovered  evidence  was  not  dis- 
covered before  the  cause  had  been  fully  tried 
and  the  verdict  returned,  the  refusal  to  grant 
a  new  trial  was  proper. 

[Ed.  Note. — For  other  cases,  see  New  Trial, 
Cent  Dig.  §§  210-214;    Dec.  Dig.  i  102.*] 

Appeal  from  District  Court,  Poweshiek 
County;  K.  B.  Wlllcoxen,  Judge. 

Action  to  recover  damages  for  personal 
Injury.  Judgment  for  plaintiff,  and  defend- 
ant appeals.    Affirmed. 

P.  O.  Norrls  and  Lyman  &  Lyman,  for 
appellant  George  H.  Crosby  and  J.  H.  Pat- 
ton,  for  appellee. 

WEAVER,  J.  On  the  night  of  September 
9,  1907,  the  plaintiff,  a  young  man  of  27 
years  of  age.  Is  alleged  to  have  fallen  and 
received  an  Injury  upon  one  of  the  walks  of 
the  defendant  city;  said  fall  having  been 
occasioned  by  the  defective  condition  of  the 
walk,  and  without  fault  on  his  part  He 
charges  the  defendant  with  negligence  in 
the  maintenance  of  the  walk  In  question,  in 
that  it  had  permitted  the  same  to  i)ecome 
weak,  rotten,  and  dilapidated,  and  to  re- 
main In  that  condition  an  unreasonable 
length  of  time  without  proper  repair.  In 
bis  original  petition  plaintiff  alleged  that 
In  said  walk  there  was  a  broken  board  the 
parts  of  which  had  been  allowed  to  re- 
main unfastened,  one  of  them  having  drop- 
ped below  the  level  of  the  walk,  leaving  a 
hole  therein  some  12  Inches  In  width  and 
2  feet  in  length,  and  that  in  passing  this 
place  he  slipped  and  fell,  his  left  foot  pass- 
ing through  said  hole  in  the  walk,  and  that 
he  thereby  fractured  his  ankle.  The  case 
being  tried  to  a  Jury,  the  plaintiff,  after  all 
the  evidence  was  In,  asked  and  was  allowed 
to  file  an  amendment  to  his  petition  to  con- 
form his  claim  to  the  proof  which  had  been 
adduced  with  respect  to  the  manner  of  bis 
Injury.  By  the  amendment  he  alleged  that 
he  was  caused  to  fall  either  by  slipping  into 
a  hole  In  the  defective  walk,  which  hole 
had  been  caused  by  the  dropping  of  the  In- 
ner end  of  a  piece  of  broken  board,  still 
banging  by  a  nail  to  the  outer  stringer,  or 
by  slipping  on  the  outer  end  of  a  broken 
board  which  held  to  the  stringer,  but  sloped 
downward  toward  the  middle  of  the  walk, 
Vhere  It  was  broken  off  and  depressed  be- 
low the  general  level.  On  the  filing  of  this 
amendment  defendant  moved  the  court  to 
strike  It,  because  It  did  not  conform  to  the 
proof.  This  motion  being  overruled,  defend- 
ant further  moved  for  &  continuance  to  the 


•IV>r  OtlMT 


fee  sam*  topic  and  sactlon  NUUBER  in  Dec.  ft  Am.  Digs.  1907  to  date,  *  Reporter  Indcxos 


Digitized  by  VjOOQ  l€ 


912 


122  NORTHWESTERN  REPORTER. 


(Iowa 


next  term,  on  the  gronnd  that  the  amekid- 
ment  presented  a  new  issue,  on  which  it  was 
not  prepared  to  go  to  trial.  The  court  re- 
fused to  grant  a  continuance,  and  error  is 
assigned  on  the  ruling.  There  was  a  verdict 
for  |6o0.  A  motion  for  a  new  trial  because 
of  alleged  errors,  and  on  the  ground  of  new- 
ly discovered  evidence,  was  overruled ;  and, 
judgment  being  entered  on  the  verdict,  de- 
fendant brings  the  case  to  this  court  by  ap- 
peal. 

1.  Counsel  for  defendant  give  first  atten- 
tion to  the  matter  of  the  amendment  which 
the  court  allowed  plaintiff  to  make  after 
the  close  of  the  evidence.  It  ia  said  the 
amendment  introduced  into  the  case  a  new 
issue,  on  which  defendant  was  entitled  to 
time  to  prepare  Its  defense.  It  is  also  said 
there  was  neither  "allegation  nor  testimony 
that  there  was  a  defective  board  which 
caused  the  injury."  We  think  this  conten- 
tion cannot  be  seriously  advanced,  or  counsel 
have  failed  to  read  the  record,  which  they 
themselves  present.  The  original  petition 
as  set  out  In  appellant's  abstract  alleges  that 
there  was  a  broken  board,  and  that  one  of 
the  fragments  or  parts  had  dropped  below 
the  level  of  the  walk,  making  a  hole  into 
which  he  slipped  or  fell.  Plaintiff  testifies 
that  he  stepped  on  a  broken  board,  which 
turned  under  his  foot  and  let  him  slip. 
On  cross-examination  he  again  states  that 
the  board  was  broken,  and  that  it  was  an 
old  break  which  had  "weathered  over."  In- 
deed it  is  difficult  to  perceive  why  plaintiff 
should  have  felt  required  to  file  the  amend- 
ment It  introduced  no  material  new  aver- 
ment. It  is  true  the  petition  speaks  of  the 
two  pieces  of  the  broken  board  as  having 
been  left  in  the  walk  "unfastened,"  while  the 
amendment  alleges  that  one  end  of  the  frag- 
ment on  which  plaintiff  stepped  hung  to 
the  outer  stringer  by  a  nail,  but  the  essen- 
tial averment  in  either  case  was  that  the 
board  was  broken,  making  a  hole  or  de- 
fective place  in  the  walk  so  that,  when 
plaintiff  stepped  upon  it,  he  slipped  and  fell 
to  his  injury.  It  was  unnecessary  to  burden 
the  pleadings  with  minute  details.  The  de- 
fendant was  fully  and  fairly  advised  of  the 
general  nature  and  substance  of  the  claim 
made  against  it,  and  there  Is  no  merit  in 
the  exception  taken  to  the  ruling  of  the  tri- 
al court  in  this  respect  The  court  might 
well  have  stricken  the  amendment  as  un- 
necessary, but  appellant  suffered  no  preju- 
dice by  permitting  it  to  stand. 

2.  The  court  charged  the  Jury  that,  even 
If  plaintiff  knew  the  walk  was  defective,  if 
he  believed,  and  as  an  ordinarily  prudent 
man  he  had  a  right  to  believe,  that  he  could* 
use  it  with  safety,  then  he  was  under  no  ob- 
ligation to  select  another  route  of  travel, 
although  there  were  other  and  better  walks 
which  might  have  served  his  purpose.  The 
error  assigned  upoir  the  giving  of  this  in- 
etruction  cannot  be  sustained.  It  fairly 
states  the  rule  as  it  has  often  been  approv- 


ed by  this  court  Scurlock  t.  Boone  (Iowa) 
121  N.  W.  369;  Sylvester  v.  Casey,  110 
Iowa,  258,  81  N.  W.  453;  Kendall  v.  Albia, 
73  Iowa,  248,  34  N.  W.  833;  Templin  v. 
Boone,  127  Iowa,  94,  102  N.  W.  789.  It  is 
objected,  however,  that  there  was  no  evi- 
dence l)efore  the  Jury  to  which  the  instruc- 
tion was  applicable.  We  do  not  so  read  the 
record.  Plaintiff  would  not  be  guilty  of  con- 
tributory negligence  in  choosing  that  route 
to  bis  home  unless,  in*  the  light  of  all  the 
circumstances  as  known  to  him,  it  was  im- 
prudent to  do  so.  Whether  it  was  prudent 
depends  on  the  Just  inferences  to  be  drawn 
from  the  condition  of  the  walk,  the  dark- 
ness of  the  night  the  extent  of  plaintiff's 
knowledge  of  the  conditions,  and  all  other 
proved  circumstances  which  should  appeal 
to  the  Judgment  and  good  sense  of  a  man  in 
the  exercise  of  ordinary  care  for  his  own 
safety.  This  is  the  province  of  the  Jury, 
and  the  court  properly  left  the  question  to 
its  determination. 

3.  Witnesses  on  both  sides  mentioned  the 
fact  that  soon  after  the  alleged  accident 
the  sidewalk  at  this  place  was  "turned  up," 
and  later  was  removed,  and  some  of  them 
stated  that  the  stringers  thus  exposed  were 
found  to  be  rotten.  The  court  charged  the 
Jury  that  this  evidence  could  be  considered 
only  as  bearing  upon  the  condition  of  the 
walk  at  the  time  of  the  alleged  injury,  and 
upon  the  question  of  notice  to  the  city  offi- 
cers of  its  defective  condition  if  any.  Coun- 
sel argue  that  this  instruction  is  erroneous  as 
being  In  violation  of  the  rule  which  ex- 
cludes evidence  of  subsequent  repairs  In 
cases  of  this  character.  To  this  objection  It 
may  be  answered  that  the  testimony  appears 
to  have  been  admitted  without  objection  or 
exception,  and  the  instruction  criticized  is 
pertinent  to  the  record  so  made.  Moreover, 
the  testimony  does  not  appear  to  have  been 
open  to  the  objection  now  made.  No  one 
swears  that  the  tearing  up  and  removal  of 
the  walk  was  the  work  of  the  city,  or  that 
the  city  was  In  any  manner  responsible  for 
this  change  in  conditions  at  the  place  in 
question.  If,  on  examination  within  a  short 
time  after  the  accident  the  materials  of 
which  the  walk  was  composed  were  found 
to  be  rotten  and  decayed,  it  was  certainly 
proper  to  show  it  in  evidence  as  bearing 
upon  its  condition  at  the  time  of  the  acci- 
dent as  well  as  upon  the  question  whether 
the  alleged  defect  had  existed  such  a  length 
of  time  that  the  city,  in  the  exercise  of 
reasonable  supervision  of  its  streets,  ought 
to  have  discovered  and  remedied  it  The 
court  carefully  charged  the  Jury,  limiting 
the  effect  of  the  evidence  to  this  legitimate 
purpose,  and  the  exception  taken  to  the  in- 
struction must  be  overruled. 

4.  Nor  was  there  any  error  in  overruling 
the  motion  to  set  aside  the  verdict  and  for 
a  new  trial.  The  evidence  was  sufficient  to 
take  the  case  to  the  Jury.  No  reversible 
error  in  the  rulings  of  the  court  xspaa  the 


Digitized  by  LjOOQ  IC 


Iowa) 


WATSON  ▼.  GLARE. 


913 


trial  of  tbe  case  has  been  shown.  The 
amonnt  of  the  verdict  is  not  so  great  or  ex- 
cessive as  to  clearly  Indicate  that  It  was 
the  result  of  passion  or  prejudice.  The  al- 
leged newly  discovered  evidence  la  merely 
cumulative  In  character.  Moreover,  the  wit- 
ness by  -^lom  It  was  proposed  to  prove  the 
alleged  facts  was,  during  all  the  period  be- 
tween plaintiff's  Injury  and  the  trial  of  this 
case,  a  resident  of  the  defendant  city,  and 
no  good  reason  Is  shown  or  suggested  why 
tbe  matters  of  which  he  speaks  in  his  af- 
fidavit were  not  discovered  before  the  case 
had  been  fully  tried  and  verdict  returned. 

We  discover  no  sufBclent  cause  for  dis- 
turbing the  Judgment  of  the  district  court, 
and  it  is  affirmed. 


WATSON  T.  CLARE. 
(Snpreme  Court  of  Iowa.    Oct  25,  1909.) 

1.  Deeds  (S  211*)— Kxecution— CAPAcrrr. 

Evidence  held  to  sustain  a  findine  that  the 
grantor  in  a  deed  had  aufficient  mental  capacity 
to  convey  tbe  property,  in  consideration  of  tbe 
grantee's  contract  to  furnish  her  necessaries  and 
manage  her  affairs. 

{Ed.  Note.— For  other  cases,  see  Deeds,  Cent, 
g.  {  638;    Dec.  Dig.  {  211.*] 

2.  Deeds   (|   211*)_— EIxecution— I^atjd. 

B>videDce  held  insufficient  to  show  frand  on 
the  part  of  the  grantee  in  a  deed,  in  considera- 
tion of  his  agreement  to  support  the  grantor 
and  manage  her  affairs. 

[Ed.  Note.— For  other  cases,  see  Deeds,  Cent 
Dig.  {  645 ;  Dec.  Dig.  {  211.*] 

8.  Wnxa    (S    ie6*)P— Etbcution— Bvidehob— 

FinoiNQs. 

Evidence  lield  to  support  a  finding  that  tes- 
tatrix did  not  comprehend  the  nature  of  the 
instmment  signed  when  she  executed  a  will, 
and  was  misled  with  reference  to  the  purpose 
for  which  it  was  being  executed. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.   U  421-437;    Dec.  Dig.  (  166.*] 
4.  Pbincipai.   and    Aoent   ((   79*)— AssiOK- 

IIENT    TO    AOERT— BTJBDEN    OF    PBOOF. 

Where  an  agent,  having  agreed  to  support 
and  care  for  his  principal  during  the  rest  of 
her  life,  obtained  from  her  an  absolute  as- 
signment of  a  note  and  mortgage,  the  burden 
was  on  him  to  show  absolute  candor  and  fair 
dealing  with  her  by  a  preponderance  of  the 
evidence. 

[Ed.  Note.— For  other  cases,  see  Principal  and 
Agent,  Cent  Dig.  {  183;   Dec.  Dig.  §  79.*] 

fi.  Pbincipai.  and  Aoknt  (|  69*)— Mdtital 

Duties. 

Where  plaintiff's  agent  procured  an  as- 
signment of  a  note  and  mortgage  from  her  on 
the  plea  tlmt  it  was  necessary  to  satisfy  an  in- 
heritance tax  and  other  expenses  connected  with 
the  estate  of  plaintiff's  sister,  when  in  fact 
the  tax  had  never  been  levied,  defendant  hav- 
ing contracted  to  furnish  plaintiff  with  sup- 
port and  manage  her  affairs  in  consideration 
of  a  conveyance  of  certain  land,  the  assignment 
was  properiy  set  aside. 

[Kd.  Note.— For  other  cases,  see  Principal  and 
Agent,  Cmt  Dig.  H  130-145;  Dec.  Dig.  g  69.*] 

Appeal  from  District  Court,  Monroe  Coun- 
ty;   Frank  W.  Blchelberger,  Judge. 
Action  for  the  cancellation  of  a  deed,  as- 


signment of  mortgage,  and  a  will  resulted  In 
a  decree  as  prayed  as  to  the  assignment  and 
the  will,  but  a  denial  of  relief  as  to  tbe  deed. 
Both  parties  appeal ;  that  of  plaintiff  being 
first  perfected.    Affirmed. 

W.  B.  Glltner  and  X  O.  Mabry,  for  appe- 
lant John  T.  Clarkson  and  MitcheU  &  Price, 
for  appellee. 

LADD,  3.  Archibald  Rhea,  with  his  two 
maiden  sisters,  settled  on  a  farm  near  Albia 
in  1870.  Title  appears  to  have  been  taken  In 
tbe  names  of  all  three,  and  they  subsequent^ 
ly  made  a  Joint  will,  by  the  terms  of  which, 
upon  the  death  of  one,  the  other  took  the 
estate,  and  upon  that  of  the  latter,  what- 
ever was  left  became  the  property  of  tbe 
survivor.  Archibald  died  December  8,  1903, 
and  his  sister  Nancy  became  executrix  of 
the  estate,  but  before  Its  settlement  she  died. 
This  was  November  27,  1904,  and  on  De- 
cember 28th  of  the  same  year  John  W.  Clark 
was  appointed  administrator  of  the  estate  of 
Archibald  with  the  will  annexed,  and  on  Jan- 
uary 81,  1905,  was  appointed  administrator 
of  the  estate  of  Nancy  Rhea.  The  first  ap- 
pointment was  based  on  the  petition  signed 
by  the  surviving  sister,  Jane  M.  Rhea,  and 
the  last  on  her  affidavit  of  Nancy's  death. 
On  the  day  these  were  signed  she  executed 
a  deed  conveying  the  house  In  which  she 
lived,  with  the. two  lots,  to  Clark,  reserving 
during  life,  possession,  use,  and  occupancy  of 
the  premises,  together  with  the  rents  and 
profit,  to  be  derived  therefrom,  but  was  to 
pay  the  taxes  and  keep  the  property  Insured, 
and  In  consideration  therefor  Clark  agreed, 
as  her  agent  to  "take  charge  of  and  manage 
her  business  affairs  to  the  best  of  his  ability, 
and  that  he  will.  In  case  of  her  sickness  ot 
physical  inability,  see  that  she  is  provided 
with  care  and  comforts  so  long  as  she  shall 
remain  a  resident  of  Monroe  county,  Iowa." 
On  the  same  day  she  made  a  will  leaving 
to  Clark  all  her  property  after  her  debts 
and  funeral  expenses  should  be  paid.  On 
April  2,  1907,  she  Indorsed  to  him  a  note 
of  $2,000  executed  by  one  Elder,  bearing  in- 
terest at  the  rate  of  6  per  cent,  per  annum, 
and  assigned  to  him  a  mortgage  securing  the 
same,  the  assignment  containing  the  follow- 
ing: "In  consideration  of  said  John  W. 
Clark  advancing  to  me  during  the  remainder 
of  my  life,  such  moneys  as  shall  be  neces- 
sary to  provide  for  me  In  my  present  state 
and  condition  of  life  and  according  to  my 
situation  In  life,  I  make  the  above  transfer, 
and  that  he  will  upon  my  death  pay  all 
funeral  expenses  and  give  my  body  a  re- 
spectable burial  and,  I,  the  said  J.  W.  Clark, 
in  consideration  of  the  above  assignment  do 
expressly  agree  to  and  with  the  said  Jane 
M.  Rhea,  that  I  will  provide  for  her  the 
necessities  of  life,  food,  fuel,  clothing,  home 
and  such  domestic  assistance  as  she  maj 


•For  other  oaaos  lea  same  toplo  and  (•ctlon  NUMBER  In  Dm.  *  Am.  Digs.  1M7  to  data,  *  Beportar  Indaxw 
122N.W.-58 


Digitized  by  VjOOQ  IC 


914 


122  NOBXHWESXBRN  REPOBTEB. 


(Iowa 


need  during  the  remainder  of  her  natural 
life  and  I  hereby  expressly  covenant  and 
agree  to  care  for  her  In  the  same  manner 
and  to  the  same  extent,  as  If  she  were  a 
member  of  my  family,  and  upon  her  death  to 
pay  all  funeral  expenses  and  give  her  body 
a  respectable  burial.  And  shoxild  I  refuse 
to  do  so,  then  this  contract  to  be  null  and 
void,  otherwise  to  be  In  full  force  and  efTect" 
The  sole  issue  for  determination  is  wheth- 
er Jane  M.  Rhea  was  capable  of  executing 
the  papers  as  above  recited,  and  whether 
any  or  all  of  these  Instruments  were  pro- 
cured by  fraud  practiced  on  her  by  defend- 
ant, J.  W.  Clark.  The  record  leaves  no  doubt 
but  that  he  has  faithfully  performed  his 
part  of  the  above  agreements.  It  Is  also 
convincing  that  Jane  >L  Rhea  was  entirely 
satisfied  with  his  management  of  the  prop- 
erty and  the  care  given  her  imtil  about  the 
time  a  n^hew  living  in  Kansas  was  to  visit 
her.  The  proof  Is  conclusive  that  she  in- 
tended to  bestow  her  property  on  Clarlc  until 
about  this  visit,  and  thereafter  changed  her 
mind  and  concluded  that  she  would  lllie  to 
have  it  go  to  the  children  of  this  nephew. 
While  her  brother  was  alive,  Clarlc  had  as- 
sisted him  frequently,  and  after  his  death 
had  gone  with  Nancy  to  select  his  coffin,  and 
choose  a  site  In  the  cemetery  for  his  last 
resting  place.  He  aided  these  women,  64 
and  66  years  of  age.  In  changing  their  resi- 
dence to  the  house  in  controversy,  and  with 
his  wife  visited  them  several  times  a  week 
until  Nancy's  death,  and  freely  attended  to 
such  matters  of  business  as  they  requested. 
In  short,  the  defendant  and  his  wife  became 
their  companions,  and  enjoyed  their  fullest 
confidence.  Jane  was  without  business  ex- 
perience. While  her  brother  and  sister  liv- 
ed she  left  all  business  matters  to  them. 
So  that  when  Nancy  died,  and  she  was  left 
alone  at  66  years  of  age  without  experience 
in  the  management  of  her  own  affairs,  she 
quite  naturally  looked  to  the  defendant  and 
his  wife  for  such  assistance  as  she  required. 
That  they  tenderly  looked  after  her  needs  Is 
not  open  to  doubt.  Did  they  do  more  by 
taking  advantage  of  her  situation  and  confi- 
dence In  them  by  fraudulently  inducing  her 
to  execute  the  papers  In  question?  Nancy 
had  expressed  the  wish  that  all  left  after 
she  and  ber  sister  were  done  with  it  should 
go  to  the  defendant  And  such  was  the  de- 
sign of  Jane  for  more  than  two  years  after 
Nancy's  death.  The  only  misrepresentation 
to  the  deed  testified  to  by  Jane  was  that 
defendant  and  the  attorney  present  called 
it  a  contract  Such  it  was,  and,  as  she  de- 
scribed It  a  contract  that  defendant  should 
attend  to  her  business  during  her  life  and 
have  the  property  when  she  was  gone.  That 
Is  the  purport  of  the  deed,  and  so  she  was 
not  misled  or  Imposed  upon,  but  executed 
precisely  such  an  instrument  as  she  supposed 
and  then  desired.  Had  It  been  merely  a  con- 
tract to  convey  or  to  will  the  property  upon 
the  rendition  of  the  services  described,  she 


would  not  be  entitled  to  have  it  canceled, 
for  defendant  has  performed  his  part  and 
there  Is  no  pretense  that  If  such  an  instru- 
ment, fraud  was  practiced  In  its  procure- 
ment True  she  testified  in  her  direct  ex- 
amination that  the  attorney  told  her  It  was 
necessary  to  sign  It  In  order  to\ettle  the 
estate,  but  from  her  answers  on  cross-ex- 
amination. It  clearly  appears  that  she  fully- 
comprehended  its  nature  and  object  Botb 
defendant  and  the  attorney  testified  that  the 
instrument  was  read  over  and  explained  to 
her,  and  defendant's  wife  that  she  previ- 
ously had  spoken  to  her  several  times  of 
making  such  a  deed.  Undoubtedly  she  was 
simple-minded,  unsophisticated,  without  ex- 
perience in  business  affairs.  Inclined  to  con- 
fide in  those  about  ber;  but  these  charac- 
teristics alone  cannot  be  permitted  to  di- 
vest her  of  the  right  to  control  ber  own 
property,  though  they  might  be  of  control- 
ling Importance  were  there  any  proof  of 
overreaching  or  deception.  A  separate  ex- 
amination of  the  record  has  led  us  to  the 
conclusion  that  conceding  the  burden  of 
proof  to  be  on  defendant  no  fraud  was  prac- 
ticed In  the  procurement  of  the  deed. 

2.  The  defendant  was  not  present  when  the 
will  was  signed,  but  testified  that  Miss  Rhea 
had  spoken  to  him  of  it  before  and  after. 
The  attorney  testified  that  It  was  drawn  at 
her  request,  and  was  fully  explained  to  her 
before  signing.  On  the  other  hand,  Miss 
Rhea  testified  that  she  was  not  advised  that 
the  paper  signed  was  a  will,  and  It  was  not 
read  to  her,  and  she  did  not  know  she  was 
signing  a  will;  that  the  attorney  had  told 
her  it  was  a  paper  necessary  to  get  her  sis- 
ter's  estate,  and  In  this  she  was  corroborat- 
ed by  the  evidence  of  one  of  the  subscribing 
witnesses  that  when  she  was  about  to  sign 
her  name  Miss  Rhea  Informed  ber  In  the 
presence  of  the  attorney  that  it  was  a  paper 
that  was  necessary  In  order  to  get  Nancy's 
estate.  It  is  apparent  that  the  state  of  the 
evidence  in  view  of  Miss  Rhea's  inexperi- 
ence and  confidence  is  such  that  this  court 
ought  not  to  interfere  with  the  finding  of 
the  trial  court  that  she  did  not  comprehend 
the  nature  of  the  instrument  signed,  and  was 
misled  with  reference  to  the  purpose  for 
which  the  same  was  being  executed.  As  to 
the  propriety  or  effectiveness  of  the  decree 
canceling  a  will  at  the  suit  of  a  guardlan,^ 
we  express  no  opinion.  The  point  was  not 
touched  hi  argument  and  we  merely  decline 
to  Interfere,  owing  to  any  defect  In  the  evi- 
dence with  the  decree  as  entered. 

3.  The  contract  with  reference  to  the  as- 
signment of  the  note  and  mortgage  was  not 
entered  into  until  April  2,  1907.  Defendant's 
wife  had  taken  Miss  Rhea  out  to  his  home 
the  night  before,  and  he  brought  her  back 
to  Albia  the  next  morning.  Prior  to  that 
time  the  matter  bad  never  been  referred  to. 
He  testified  that  after  reaching  his  home 
she  first  proposed  that  he  take  the  note  and 
mortgage  and  advance  money  on  it,  take 


Digitized  by  VjOOQ  l€ 


Iowa> 


OUSHINa  T.  CITY  OP  WINTEEISET. 


915 


care  of  her,  and  pay  all  bills  during  the  re- 
mainder of  her  life.  But  she  denied  having 
had  such  a  conversation,  and  testified  that 
be  told  her  that  he  had  to  have  some  mon- 
ey to  close  the  business  of  her  sister's  estate, 
to  pay  the  inheritance  tax  and  other  ex- 
penses, and  that  she  signed  the  papers  solely 
to  enable  him  to  do  this,  and  without  inten- 
tion to  part  with  her  ownership  of  them. 
He  does  not  claim  to  have  made  any  specific 
showing  to  her  of  advances  be  claimed  to 
have  made,  and  the  Inheritance  tax  spoken 
of  was  never  levied.  It  cannot  be  said  from 
the  record  before  as  that  any  encroachment 
on  the  face  of  the  note  was  necessary  to  the 
comfortable  support  of  this  woman.  The  de- 
fendant bad  already  contracted  to  attend 
to  all  business  matters  for  her,  and  looking 
after  this  note  and  mortgage,  aside  from  see- 
ing to  the  payment  of  taxes  and  some  per- 
sonal needs,  was  about  all  that  devolved 
upon  him.  For  this  compensation  had  been 
made.  He  was  her  agent,  and  owed  her  the 
duty  of  absolute  candor  in  his  dealing^.  The 
burden  was  on  him  to  overcome  the  charge 
of  unfair  dealing  with  her  by  a  preponder- 
ance of  the  evidence.  The  stenographer  who 
transcribed  the  assignment  as  dictated  to 
her  by  an  attorney  employed  by  defendant 
testified  that  the  indorsement  on  the  note 
and  the  assignment  were  read  over  to  her. 
This  may  be  so,  but  according  to  her  testi- 
mony she  had  been  previously  advised  of  its 
purpose,  and  in  her  simplicity  was  not  guard- 
ing against  deception  as  to  the  object  of  the 
indorsement  by  him  In  whom  she  reposed  the 
utmost  confidence.  All  the  circumstances  are 
consistent  with  a  careful  prearrangement  on 
the  part  of  defendant,  and  we  are  satisfied 
that  in  procuring  the  transfer  of  the  note 
and  mortgage,  the  Inference  the  law  war- 
rants that  he  took  advantage  of  his  situa- 
tion and  of  Miss  Rhea's  confidence  has  not 
been  overcome  by  the  evidence  adduced  by 
defendant. 

The  plaintiff  urges  that  because  of  such 
misconduct  as  agent,  defendant  has  forfeited 
title  in  remainder  under  the  deed.  That  is- 
sue is  not  raised  in  the  pleadings,  and  for 
that  reason  will  not  be  considered.  In  view 
of  the  conclusion  reached,  it  is  unnecessary 
to  pass  on  the  motion  to  dismiss  the  defend- 
ant's appeal.  Eiach  party  will  pay  one-half 
of  the  costs. 

AfiQrmed. 


CDSHINQ  v.  CITY  OP  WINTERSET  et  al. 

(Sapreme  Court  of  Iowa.    Oct.  23,  1909.) 

LiMrrATiON    OF    Actions    (|    72*)— Injubibs 
raoM  Depectivb  Streets—I  nfanct. 

Acta  22d  Gen.  Assem.  18SS,  p.  31,  c.  23, 
as  amended  b^  Acta  2Gth  G«n.  Assem.  1806,  p. 
67,  c.  G3.  limiting  the  timp  to  sue  for  injaries 
from  defective  streets  to  three  months,  unless 
DOtrce  of  the  accident  has  been  served  on  the 


municipality  within  60  days  after  the  accident, 
origiiially  enacted  while  the  general  limitation 
statute  was  in  force,  was  not  adopted  as  a  part 
thereof,  but  as  a  special  provision  covering  ac- 
tions against  municipal  corporations  for  in- 
iaries;  and,  though  Incorporated  In  Code  1897, 
3447,  providing  that  actions  may  l>e  brought 
within  the  times  limited,  and  not  afterwaras. 
It  is  an  exception  to  the  general  statute  of 
limitations  in  paragraph  3  of  the  section,  which 
requires  an  action  for  injuries  to  a  person  to 
be  brought  within  two  years,  and  hence  section 
3453.  providing  that  the  times  limited  for  ac- 
tions shall  l>e  extended  in  favor  of  Infants,  etc., 
does  not  apply,  and  an  infant  injured  .on  a  de- 
fective sidewalk  must  sue  within  three  months, 
where  no  notice  has  been  served  on  the  city. 

[Ed.  Note.— For  ot^er  cases,  see  Limitation  of 
Actions,  Dec.  Dig.  i  72.*] 

Appeal  from  District  Court,  Madison  Coun- 
ty;   Edmund  Nichols,  Judge. 

Action  to  recover  damages  for  personal  in- 
jury sustained  by  plaintiff  while  passing 
along  a  public  street,  by  reason  of  the  alleged 
negligence  of  the  defendant  in  failing  to 
maintain  such  street  in  a  reasonably  safe 
condition  for  travel.  There  was  a  demurrer 
to  the  petition  on  the  ground  that  plaintiff 
failed  to  allege  written  notice  specifying 
the  time,  place,  and  circumstances  of  the 
injury,  and  that  tiie  action  was  not  com- 
menced until  more  than  three  months  had 
elapsed  from  the  alleged  happening  of  said 
Injury.  This  demurrer  was  sustained,  and 
on  an  election  of  plaintiff  to  stand  on  his 
petition  without  further  pleading  Judgment 
was  rendered  for  the  defendant,  and  plain- 
tiff appeals.    Affirmed. 

C.  A.  Robbins,  for  appellant  A.  W.  4 
Phil.  R.  Wilkinson,  for  appellees. 

McCLAIN,  J.  It  is  conceded  that  the 
ruling  of  the  court  in  sustaining  defendant's 
demurrer  on  the  ground  that  the  action 
founded  on  injury  to  the  person  on  account 
of  a  defective  street  was  not  brought  within 
three  months,  no  written  notice  specifying 
the  time,  place,  and  circumstances  of  the 
injury  having  been  served  upon  the  defend- 
ant within  60  days  from  the  happening  of 
the  injury  (Code,  {  3447,  par.  1),  was  cor- 
rect, unless  the  alleged  fact  of  plaintifTs 
minority  entitled  him,  under  Code,  i  3433, 
to  8  time  after  the  termination  of  his  disa- 
bility within  which  to  serve  such  notice. 
The  allegations  of  the  petition  in  this  re- 
spect were  that  plaintiff's  Injury  was  re- 
ceived on  March  28,  1908,  and  that  he  did 
not  attain  his  majority  until  September  30, 
1908.  The  action  was  instituted  on  Novem- 
ber 21,  1908. 

The  provision  Just  referred  to  with  refer- 
ence to  notice  in  such  cases  was  first  en- 
acted in  18SS,  as  chapter  23,  p.  31,  Acta  22d 
Gen.  Assem.  As  amended  in  1806  by  chapter 
C3,  p.  67,  26th  Gen.  Assem.,  it  was  in  force 
as  a  separate  statutory  provision  relating  to 
municipal  corporations,  when  in  1897  It  was 
by  the  Legislature  incorporated  into  Code, 


•For  eUiar  easts  sm  aam*  tople  and  SMtlon  NUMBER  la  Dec.  *  Am.  Digs.  1907  to  date,  &  Reportw  Indeisa 


Digitized  by  VjOOQ  l€ 


916 


122  NORTHWESTERN  REPORTER. 


(Iowa 


i  8447,  relating  In  general  to  the  llmitadoii 
of  actions  as  the  first  paragraph  of  thtt  sec- 
tion. The  statute  of  limitations  relating  to 
injuries  to  the  person,  and  requiring  actions 
therefor  to  be  brought  within  two  years,  was 
in  force  when  the  acts  of  the  Twenty-Sec- 
ond General  Assembly  was  passed  (see  Code 
1873,  {  2529,  par.  1),  and  that  provision  is 
retained  as  paragraph  3,  Code,  {  3447.  Tlie 
acts  of  the  Twenty-Second  General  Assem- 
bly was  not  therefore  as  originally  adopted 
a  part  of  the  statute  of  limitations,  but  was 
a  specific  provision  with  reference  to  actions 
brought  against  municipal  corporations  to 
recover  for  injuries  to  ttte  person,  and  Its 
purpose  was  to  give  such  corporation  such 
notice  of  the  claim  as  would  enable  it  to  in- 
vestigate the  circumstances  of  the  injury 
while  the  facts  are  fresh  and  witnesses  are 
available.  Giles  v.  Shenandoah,  111  Iowa, 
83,  82  N.  W.  466;  BUven  v.  Sioux  City,  85 
Iowa,  846,  62  N.  W.  246.  The  fact  of  the 
service  of  the  notice  was  a  material  allega- 
tion on  the  part  of  plaintitT,  if  his  action  was 
not  brought  within  three  months.  Pardey 
T.  Mechanicsvllle,  101  Iowa,  266,  70  N.  W. 
180.  If  the  proper  notice  had  been  served 
within  the  specified  time,  then  the  action  was 
covered  by  the  general  statute  of  limitations 
as  to  actions  for  personal  injuries,  and  might 
be  brought  within  two  years.  Robinson  v. 
Cedar  Rapids,  100  Iowa,  663,  60  N.  W.  1064. 
Prior  to  the  Incorporation  of  this  provision 
into  the  general  statute  of  limitations,  there 
was  no  exception  on  behalf  of  minors;  sec- 
Uon  2535  of  the  Code  of  1873  (now  Code,  ( 
3453),  providing  that  times  limited  for  ac- 
tions shall  be  extended  in  favor  of  minors 
so  that  they  shall  have  one  year  from  and 
after  the  termination  of  disability  within 
wliidi  to  commence  the  action,  having  no 
application  to  such  provision.  Morgan  v. 
Des  Moines,  60  Fed.  208,  8  a  O.  A.  569. 
While  the  case  last  cited  was  not  decided  in 
this  court,  it  was  by  Implication  approved  In 
Roelefsen  T.  Pella,  121  Iowa,  163,  96  N.  W. 
738. 

The  contention  of  appellant  is,  however, 
that  when  the  provision  of  the  Twenty-Sec- 
ond General  Assembly,  as  amended  by  the 
Twenty-Slxtli  General  Assembly,  was  Incor- 
porated by  the  Legislature  Into  the  section 
relating  to  general  limitation  of  actions,  the 
exception  of  Code,  g  3453,  became  applicable 
thereto,  that  the  limitation  of  three  months 
within  which  action  must  be  brought,  if  no 
notice  was  served  within  60  days,  became 
subject  to  the  statutory  exception  as  to  mi- 
nors, and  that  plaintiff  had  ttiree  months 
within  which  to  bring  his  action  after  he  at- 
tained his  majority,  although  no  notice  of  his 
claim  had  been  served  within  60  days  after 
the  injury  was  received.  Notwithstanding 
the  Incorporation  Into  Code,  t  3447,  of  the 
provision  previously  made  in  the  statute  on 
the  subject  which  related  specifically  to  mu- 


nicipal corporations,  and  was  not  a  part  of 
the  general  limitation  statute^  we  have  held 
that  the  paragraph  of  the  section  in  question 
does  not  apply  to  cities  under  special  ctiarter, 
although  without  question  the  g;eneral  limi- 
tation of  two  years  for  bringing  such  actions 
does  apply  to  special  charter  cities  as  well  as 
to  others.  Kenyon  v.  Cedar  Rapids,  124  Iowa. 
195,  99  N.  W.  692;  Harvey  v.  Clarinda,  111 
Iowa,  528,  82  N.  W.  994.  We  think  It  ap- 
parent, therefore,  that  the  provision  of  Code, 
i  3447,  requiring  that  an  action  against  a 
municipal  corporation  for  Injury  to  the  per- 
son on  account  of  a  defective  street  shall  be 
brought  within  three  months,  unless  the 
specified  notice  has  been  served,  is  in  the 
nature  of  an  exception  to  the  general  provi- 
sion of  the  statute  (found  in  paragraph  3 
of  the  same  section),  requiring  actions  for 
injuries  to  the  person  to  be  brought  within 
two  years,  and  that  the  Introductory  declara- 
tion found  In  the  section  that  "actions  may 
be  brought  within  the  times  herein  limited  re- 
spectively after  their  causes  accrue,  and  not 
afterwards,  except  when  otherwise  specially 
declared"  (which  was  the  introductory  clause 
before  the  provision  to  whidi  we  now  hare 
reference  was  incorporated  into  the  section), 
has  reference  to  the  general  two-year  limi- 
tation, and  not  to  the  exceptional  provision 
found  In  paragraph  1.  And  we,  therefore, 
hold  that  section  3463  does  not  have  the 
effect  of  extending  In  favor  of  minors  the  ex- 
ceptional clause  requiring  such  actions  as 
this  to  be  brought  within  three  months  where 
no  notice  has  been  served.  The  object  of  the 
three  months'  limitation  would  be  practically 
defeated  In  actions  brou^t  Uir  minors  (and 
also  those  brought  by  insane  persons,  which 
are  governed  by  the  same  provisions)  if  the 
extension  in  favor  of  such  persons  was  ap- 
plied to  the  exceptional  provision  incorporat- 
ed Into  paragraph  1  of  the  general  section. 
In  view  of  the  history  of  this  legislation  we 
cannot  believe  that  this  was  the  legislative 
intent,  nor  that  the  language  employed  re- 
quires that  we  reach  such  a  result,  and  we 
hold  that  the  giving  of  the  60  days'  notice  Is 
a  condition  precedent  to  the  right  to  bring 
an  action  after  the  ^plratlon  of  three 
months. 
The  Judgment  Is  therefore  aflOrmed. 


BLAC:K  et  al.  v.  CHASE  «t  «L 

SAME  V.  BLACK  et  al. 

(Supreme  Court  of  Iowa.    Oct.  25,  1909.) 

1.  Appeal  and  Ebbob  (J  415*)— Notice  or 
Appeai/— NrcEssiTT  FOB  Sebvice. 

Failure  to  serve  notice  of  appeal  on  a  co- 
party  whose  interests  would  be  adversely  affect- 
ed by  any  change  in  the  decree  appealed  from 
deprives  the  Supreme  Court  of  junsdlctioo. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,.  Cent.  Dig.  (  2139;   Dec.  Dig.  {  415.*1 


•For  oUier  cases  see  some  topic  and  secUon  NUMBER  in  Deo.  *  Am.  Digs.  UOI  to  date,  *  Beportar  lAdexas 


Digitized  by 


Google 


Iowa) 


BLACK  y.  CHASE. 


917 


2.  Pbocbss  ({  145*)— Pboof  or  Sbbtice— Ac- 

KnoWLEDOUElra. 

The  signature  to  an  acknowledgment  of 
service  of  process,  where  dated  and  In  the  fonn 
prescribed  by  statute,  will  be  presumed  genuine, 
in  the  absence  of  any  contrary  evidence. 

[Ed.  Note.— For  other  oasest  ks  Process, 
Dec.  Dig.  (  145.*] 

Appeal  from  District  Court,  Jefferson  Coun- 
ty;  C.  W.  Vermillion,  Judge. 

Tbe  facts  are  stated  in  tlie  opinion.  George 
Black,  Samuel  Black,  and  Arcliibald  Black 
appeal.  Appeal  in  first  case  dismissed.  Judg- 
ment affirmed  in  second  case. 

Leggett  &  McKemey,  for  appellants. 
CraU  &  Crall,  for  appellees. 

LADD,  J.  George  Black  died  September 
13,  1007,  leaving  him  surylTing  seven  chil- 
dren. He  was  a  widower,  and  tbe  title  to 
the  200  acres  of  land  in  controversy  was  in 
bis  name.  On  September  20,  1908,  three  of 
the  children,  W.  H.  and  Loman  Black  and 
Anna  Burk,  and  their  respective  spouses,  filed 
a  petition  praying  that  the  land  be  partition- 
ed. Three  others,  Samuel,  George,  and  Arch- 
ibald Black,  filed  separate  answers,  each  al- 
leging that  he  was  owner  of  40  acres  of  the 
land  nnder  a  deed  executed  to  him  by  the  de- 
ceased and  wife,  March  16,  1881.  Each  also 
pleaded  by  way  of  abatement  the  pendency 
of  an  action  wherein  Archibald  Black  and 
wife  were  plaintiffs  and  die  other  cblldren 
defendants.  September  17,  1908,  Archibald 
and  wife  filed  an  amendment  to  their  an- 
swer, in  which  they  alleged  an  oral  agree- 
ment with  deceased  made  in  1886,  whereby 
they  were  to  make  their  home  with,  care  for, 
and  board,  deceased  during  the  remainder 
of  bis  life,  and  as  compensation  to  have  60 
acres  of  said  land ;  that  they  bad  performed 
said  contract,  and  prayed  that  they  be  award- 
ed said  land.  Anna  Chase,  .a  daughter,  and 
her  husband,  Samuel,  though  duly  served 
with  notice,  did  not  appear.  On  October  2, 
1007,  Archibald  Black  and  his  wife,  Mary, 
began  suit  by  filing  a  petition,  alleging  that 
George  Black  died  seised  of  the  60  acres  of 
land  heretofore  mentioned  and  another  20 
acres,  and  that  each  of  the  children  owned  an 
undivided  one-seventh  Interest  therein,  and 
prayed  that  the  same  be  partitioned.  Sub- 
sequently, on  September  17,  1908,  the  plain- 
tiffs amended  their  petition  by  alleging  tbe 
contract  heretofore  mentioned,  and  that  they 
were  entitled  to  the  land  because  of  the 
agreement  with  deceased,  and  prayed  that 
tbe  title  to  the  60  acres  be  quieted  in  them, 
and  that  the  remaining  20  acres  be  parti- 
tioned as  prayed.  On  December  2,  1907,  W. 
H.  and  liOman  Black,  Annie  Burk,  and  Em- 
ma  Chase,  with  their  respective  spouses, 
filed  an  answer,  which  was  amended  subse- 
quently to  tbe  filing  of  the  amendment  to  the 
petition,  in  which  they  pleaded  the  pendency 
of  tbe  action  first  mentioned  in  abatement. 


and  made  tbeir  replies  tn  the  former  atttan 
a  part  of  their  answer.  By  agreement  of  the 
parties  the  cause  first  mentioned,  bearing 
tbe  number  4,702,  was  tried  and  submitted 
to  tbe  court,  and  with  it  the  cause  last  men- 
tioned No.  4,704.  There  was  no  order  or 
agreement  for  the  consolidation  of  the  causes, 
and  they  were  not  treated  as  consolidated 
by  the  district  court,  though  they  were  sub- 
mitted together  on  the  same  evidence.  Tbe 
district  court  adjudged  the  plea  in  abate- 
ment in  tbe  cause  No.  4,704,  good,  and  dis- 
missed that  action.  Decree  was  entered  in 
cause  No.  4,702,  establishing  the  claims  of 
George,  Samuel,  and  Archibald  Black  to  the 
respective  40-acre  tracts,  dismissing  the  claim 
of  Archibald  Black  to  the  60  acres,  and  di- 
recting that  the  60  acres  be  partitioned.  The 
court  also  fixed  the  value  of  the  respective 
40-acre  tracts,  and  decreed  that  such  values 
be  treated  as  advancements,  and  charged  to 
the  respective  owners  in  the  partition  pro- 
ceedings. Attorney's  fees  were  ordered  taxed 
In  favor  of  plaintiffs'  attorneys,  and  the 
costs  apportioned  between  tbe  parties. 

The  appellees  contend  that  because  of  tbe 
failure  to  serve  certain  parties  with  notice 
of  appeal,  this  court  Is  without  jurisdiction 
to  hear  the  causes  de  novo.  The  notice  of 
appeal  In  No.  4,702  was  entitled  "W.  H.  Black 
et  al.  Plaintiffs,  r.  Emma  ChasQ  et  a1.  De- 
fendants," and  was  addressed  to  W.  H.  Black 
and  others,  plaintiffs,  and  to  the  defendants 
and  to  Crall  &  CraU,  their  attorneys  of  rec- 
ord, and  to  W.  C.  Smith,  clerk  of  said  court 
The  service  was  by  acceptance,  and  was 
signed  "Crall  ft  Crail,  Attorneys  for  the 
Plaintiff."  It  will  be  recalled  that  one  of 
the  children,  Emma  Chase,  and  her  husband, 
Samuel,  was  a  party  defendant,  and  did  not 
appear  in  that  action,  and  no  pleading  was 
filed  in  her  behalf,  "iiie  acceptance  of  serv- 
ice by  Crall  &  Crall  did  not  purport  to  be 
for  her,  and  was  not  for  ber,  as  it  does  not 
appear  that  they  were  her  attorneys  In  that 
action.  Any  change  In  the  decree  would 
adversely  affect  her  interests.  This  is  ap- 
parent, for  the  appellants  are  challenging 
the  order  declaring  the  conveyance  of  the  40- 
acre  tracts  advancements  and  the  dismissal 
of  the  claim  of  Archibald  Black  and  wife  to 
tbe  60  acres  of  land.  Should  this  court  take 
a  different  view  of  either  of  these  questions, 
It  wonld  decrease  the  share  to  which  Emma 
Chase  would  be  entitled  In  tbe  estate  of  de- 
ceased. Dillavou  ▼.  DiUavou,  130  Iowa,  405, 
106  N.  W.  949.  It  follows  that  this  court 
cannot  consider  tbe  appeal  In  cause  No.  4,702. 
Is  this  result  obviated  by  tiie  service  of  no- 
tice of  appeal  in  cause  No.  4,704?  It  will  be 
recalled  that  Archibald  Black  and  wife  alone 
were  plaintiffs  In  that  action,  and  that  tbe 
other  children  and  their  spouses  were  de- 
fendants. Tbe  notice  of  appeal  is  entitled, 
"Archibald    Black,    George    Black,    Samuel 


•Tor  other  easw  see  same  topic  and  (action  NUMBER  In  Dee.  *  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by 


L-oogle 


918 


122  NORTHWESTERN  REPORTEB. 


(Iowa 


Black,  and  Their  Wives,  Plaintiffs,  t.  Loman 
Black  et  al.,  Defendants."  This  notice  Is  ad- 
dressed to  "Loman  Black,  W.  H.  Black,  Sam- 
uel Bla<^,  Emma  Chase  et  al^  and  Crall  & 
CraU,  Their  Attorneys,  and  to  W.  C.  Smith, 
Clerk  of  said  Court,"  and  Is  signed  by  Leg- 
gett  &  McKemey,  Attorneys  for  Plaintiffs." 
Service  was  accepted  by  "CraU  &  Crall,  At- 
torneys for  Defendants."  So  that,  although 
Samuel  and  George  Black  are  written  In  the 
title  of  the  notice  as  plaintiffs,  they  were  in 
fact  defendants,  and  the  attorneys,  Leggett 
&  McKemey,  signed  the  notice  only  as  attor- 
neys for  plaintiffs.  They  had  neither  ai>- 
peared  nor  answered  In  cause  No.  4,701,  and 
the  only  circumstance  indicating  that  Leggett 
&  McKemey  were  their  attorneys  therein,  save 
the  notice  Itself,  is  their  appearance  for  them 
in  the  other  action.  Even  If  it  be  thought 
that  the  recital  of  the  names  of  Samuel  and 
George  Black  In  the  notice  as  plaintiffs,  and 
the  attorney's  signature  as  for  plaintiffs, 
was  sufficient  to  indicate  that,  although  de- 
fendants, they  appealed,  and  such  appeal  be 
regarded  as  perfected,  this  will  not  aid  them, 
for  the  plea  in  abatement  in  the  suit  was 
rightly  sustained. 

The  petition  In  cause  No.  4,704  was  filed 
nearly  two  weeks  after  that  In  cause  No. 
4,702;  and,  unless  service  was  completed 
therein  prior  to  the  completion  thereof  In 
the  former  action,  the  decision  must  be  sus- 
tained. Gulnn  V.  Elliott,  123  Iowa,  179,  98 
N.  W.  625.  Service  of  notice  In  this  action 
was  acknowledged  by  Samuel  Black  and 
George  Black,  and  wives,  September  30, 1907 ; 
by  William  Black  and  wife,  October  4,  1907; 
by  Loman  Black  and  wife  and  Anna  Burk, 
October  1,  1907;  and  served  on  Emma  Chase 
and  husband,  October  8,  1907.  The  return  of 
service  on  John  Burk  was  insufficient,  so  there 
Is  no  proof  that  he  was  served  at  all.  In 
cause  No.  4,702  Archibald  Black  and  Samuel 
Black  were  served  October  4, 1907,  and  George 
Black  and  wife  on  October  7th  of  the  same 
year.  E^ma  Chase  and  husband  were  served 
with  notice  on  October  15, 1907,  by  the  sheriff 
In  California.  An  original  notice  was  also 
presented  with  acknowledgment  of  due,  legal, 
and  timely  service  dated  September  24,  1907, 
which  purported  to  be  signed  by  Emma  B. 
Chase  and  Samuel  J.  Chase.  So  that.  If  serv- 
ice was  proven  by  the  acknowled^nent  of 
service  by  Emma  and  Samuel  Chase,  cause 
No.  4,702  was  begun  one  day  before  No. 
4,704.  There  Is  some  conflict  In  the  authori- 
ties as  to  whether  signatures  to  such  ac- 
knowledgment, when  dated  and  In  the  form 
prescribed  by  statute,  shall.  In  the  absence 
of  evidence  to  the  contrary,  be  presumed  to 
be  genuine.  See  cases  collected  in  19  Ency. 
P.  &  P.  698. 

The  question  was  settled  In  this  state  more 
than  50  years  ago  In  the  case  of  Johnson  v. 
Monell,  13  Iowa,  300.  Speaking  through 
Baldwin,    J.,   the   court   said:    "We   do  not 


tStink  that  any  evidence  except  the  acknowl- 
edgment Itself  Is  required.  Section  2816  of 
the  Revision  provides  that  the  notice  may  be 
served  by  taking  an  acknowledgment  of  the 
service  Indorsed  upon  the  notice,  dated  and 
signed  by  the  defendant  A  waiver  of  serv- 
ice Is  equivalent  to  an  acknowledgment  of 
service,  and  the  manner  in  which  the  ac- 
knowledgment Is  taken  is  pointed  ont  by  the 
language  of  the  section  by  the  defendant's 
dating  and  signing  the  same.  If  It  had  been 
contemplated  by  the  Legislature  that  proof 
of  the  taking,  etc.,  should  be  made,  there 
would  have  been  some  language  used  to  in- 
dicate such  a  design.  The  signature  to  the 
waiver,  dated,  eta.  Is  prima  facie  evidence 
of  the  service.  It  is  to  be  regarded  by  the 
court  in  the  same  light  as  the  signature  to  a 
pleading."  Metz  v.  Bremond,  13  Tex.  394. 
See  also,  Cheney  v.  Harding,  21  Neb.  65,  31 
N.  W.  255;  Allured  v.  Voller,  107  Mich.  476, 
65  N.  W.  285 ;  Maclln  v.  Ins.  Co.,  33  La.  Ann. 
801;  Hewett  v.  Buck,  17  Me.  147,  35  Am. 
Dec.  24a 

The  court  did  not  err  In  sustaining  the 
plea  of  abatement  in  case  Na  4,704 ;  and, 
as  a  coparty  in  cause  No.  4,702  whose  Inter- 
est would  be  affected  by  any  change  in  the 
decree  was  not  served,  we  are  unable  to  con- 
sider either  cause  on  the  merits.  The  ap- 
peal In  cause  No.  4,702,  is  dismissed,  and 
the  decree  in  No.  4,704  Is  affirmed. 


ANDERSON  v.  FIRST  NAT.  BANE  OF 
CHARITON  et  al. 

(Supreme  Court  of  Iowa.     Oct  25,  1909.) 

1.  Banks  and  Baitkiro  (|  164*)  —  Cesiifi- 
OATES  OF  DEPosrr. 

A  printed  paragraph  on  the  back  of  a  de- 
mand certificate  of  deposit  purporting  to  be 
an  "interest  agreement,"  and  signed  by  the 
printed  signaturei  of  the  depositary  l>ank  and 
two  other  banks,  to  the  effect  that  3  per  cent 
interest  would  be  allowed  on  deposits  left  un- 
drawn for  six  months,  there  l>eing  no  agree- 
ment or  suggestion  as  to  time  of  payment  or  in- 
terest expressed  on  the  face  of  the  certificate, 
was  not,  as  a  matter  of  law,  a  part  of  the  agree- 
ment between  the  depositor  and  the  bank. 

[Ed.  Note.— For  other  cases,  see  Banks  and 
Banking,  Dec.  Dig.  §  154.*] 

2.  6iLLS  AND  Notes  ({  404*)— CEarmcATB  or 
DEPOsrr— Pbesbntmxnt  fob  Paykent— Bka- 

SONABLB  TlIDE. 

Code  Supp.  1907.  S  306O-a7,  makes  an  in- 
strament  payable  on  demand  when  it  is  express- 
ed to  be  payable  on  demand  or  on  presentation, 
or  when  no  time  for  payment  is  expressed. 
Section  3060-a71  provides  that  when  payable  on 
demand  presentment  must  be  made  within  a 
reasonable  time  after  its  issue.  Section  3060- 
al93  provides  that  in  determining  what  is  a 
reasonable  time,  regard  is  to  be  bad  to  the  na- 
ture of  the  instrument  and  to  the  facts  of  the 
particular  case.  July  24,  1907,  a  national  l>ank 
issued  a  certificate  of  deposit  payable  on  de- 
mand, which  was,  on  August  29,  1907,  trans- 
ferred by  the  holders  to  a  private  bank  in  which 
the  cashier  of  the  national  bank  was  a  partner. 
October  31,  1907,  the  national  bank  closed  its 


•For  oUier  case*  im  Mine  topic  and  section  NUMBER  la  Dm.  *  Am.  Dlsi.  1947  to  data,  *  Reportar  Indans 


Digitized  by  VjOOQ  l€ 


Iowa) 


ANDERSON  v.  FIRST  NAT.  BANK:. 


919 


doon,  and  was  soon  followed  b;  the  private 
bank.  November  27th,  the  certificate  was  pre- 
sented for  payment  to  the  national  bank's  re- 
ceiver, bat  no  presentment  was  made  to  the  bank 
itself  until  January  25,  1908.  Payment  was 
in  each  instance  refused,  notice  whereof  was 
at  once  given  the  Indorsers.  During  these 
months  there  was  a  widespread  financial  panic. 
HM,  that  the  demand  and  notice  of  nonpay- 
ment were  not  duly  made,  and  that  the  indorsers 
were  discharged,  even  though  a  printed  para- 
graph on  the  back  of  the  certificate  to  the 
eCFect  that  3  per  cent  interest  would  be  allow- 
ed on  deposits  left  undrawn  for  six  months  was 
a  part  of  the  agreement  between  the  bank  and 
the  depositor. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  H  1091-1103;    Dec.  Dig.  { 

4U4.  J 

S.  Biixs  AiTD  Notes  (|  537*)— CsBTincATK  or 

DBPOSIT— PBESKMTlfENT  FOB  PAYMENT— RKA- 

SONABUE  Time. 

Whether  a  certificate  of  deposit  was  pre- 
sented for  payment  within  a  reasonable  time 
held  under  the  evidence,  a  question  of  fact. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  H  18S2,  18S3;  Dec  Dig.  i 
337.*] 

4.  Appeal  and  Erbob  (I  1008*)— Findirob  of 

Fact— Co  n  old  si  v  en  ess. 

A  finding  of  the  trial  eonrt  on  a  question 
of  fact  has  the  force  of  a  verdict,  with  which 
the  Supreme  Court  cannot  properly  interfere. 

[Ei.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  t  3955;   Dec  Dig.  f  lOOa*] 

Appeal  from  District  Court,  Lucas  County; 
M.  A.  Roberts,  Judge. 

The  opinion  states  the  material  facts.  Af- 
firmed. 

J.  A.  Pennick,  for  appellant  Stuart  & 
Stuart  and  W.  W.  Bulman,  for  appelleea 


WEAVER,  J.  On  July  24,  1907,  the  First 
National  Bank  of  Charlton  was  engaged  in 
business  under  the  national  banking  act  at 
Charlton,  Iowa.  At  the  same  time,  and  for 
some  time  thereafter,  the  Russell  Bank  was 
a  partnership  engaged  In  the  conduct  of  a 
private  banking  business  at  Russell,  Iowa. 
F.  R.  Crocker,  the  cashier  and  manager  of 
said  national  bank,  was  also  a  partner  with 
one  Brandon  in  the  ownership  and  control 
of  the  Russell  Bank;  Brandon  with  the  as- 
sistance of  employes  having  the  Immediate 
charge  of  the  business.  On  the  date  above 
named,  as  was  subsequently  revealed,  the 
National  Bank  bad  been  subjected  to  great 
loss  and  depletion  of  its  assets  by  the  defal- 
cation and  fraud  of  Crocker,  but  this  con- 
dltlcm  was  concealed,  and  did  not  become 
public  until  about  October  81,  1907,  when 
Crocker  committed  suicide,  and  the  bank's 
insolvency  was  made  known.  On  the  date 
named  J.  A.  McKlveen,  having  no  knowledge 
■or  notice  of  the  true  condition  of  said  bank, 
and  believing  it  to  be  sound  and  solvent,  de- 
posited therein  the  sum  of  $1,000,  receiving 
therefor  a  certificate  in  the  following  form: 
"The  First  National  Bank  of  Chariton.  Not 
subject  to  check.  Charlton,  la.,  July  24, 1907. 
Certificate  of  dq)08lt.     Dr.  J.  A.  McKlveen 


has  deposited  in  this  bank  one  thousand  dol- 
lars payable  to  his  order  on  demand,  upon 
the  return  of  this  certificate  properly  in- 
dorsed. $1,000.  No.  00483.  W.  B.  Beem,  As- 
sistant Cashier."  On  the  back  of  this  instru- 
ment there  appears  a  printed  paragraph  or 
statement  In  the  following  form:  "Interest 
Agreement  This  certificate  will  draw  3  per 
cent  Interest  per  annum,'  if  left  six  months; 
no  Interest  if  drawn  before  six  months.  No 
deviation  In  any  case  from  the  above  will  be 
made.  Charlton  National  Bank.  State  Sav- 
ings Bank.  First  National  Bank."  On  Au- 
gust 28,  1007,  the  payee  Indorsed  and  trans- 
ferred said  certificate  to  the  firm  of  McKlveen 
&  EUkenberry,  by  whom  it  was  indorsed  and 
transferred  to  the  Russell  Bank  on  August 
29,  1907;  said  firm  receiving  credit  therefor 
upon  its  account  with  said  last-named  bank.- 
As  we  have  already  noted,  the  insolvency  and 
failure  of  the  National  Bank  resulted  in  the 
closing  of  its  doors  on  or  about  October  31, 
1907,  and  the  fortunes  of  the  Russell  Bank 
were  so  bound  np  with  tbose  of  the  first- 
named  institution,  or  of  its  cashier,  that  its 
failure  soon  followed,  and  a  receiver  was  ap- 
pointed to  wind  up  its  affairs.  No  presenta- 
tion of  the  certificate  of  deposit  for  payment, 
or  demand  for  the  payment  thereof,  was 
made  until  November  25,  1907,  whai  it  was 
presented  to,  and  demand  made  of,  the  re- 
ceiver in  charge  of  said  National  Bank  but 
no  presentment  was  made  to  the  bank  Itself 
until  January  25,  lOOS,  and  payment  was  In 
each  instance  refused,  notice  of  which  was 
at  once  given  to  J.  A.  McKlveen  and  McKl- 
veen &  Eikenberry.  Thereafter  this  action 
at  law  was  instituted  by  the  plaintiff  as  re- 
ceiver of  the  Russell  Bank,  who  seeks  to 
charge  the  said  McKlveen  and  McKlveen  & 
Eikenberry  as  indorsers  of  the  certificate  of 
deposit 

The  Indorsers  admit  the  facts  as  hereinbe- 
fore stated,  but  deny  liability  on  two  grounds: 
First,  that  said  certificate  is  an  instrument 
payable  on  demand,  that  to  charge  the  in- 
dorsers thereof  presentment  and  demand  of 
payment  and  notice  of  nonpayment  were  re- 
quired to  be  made  within  a  reasonable  time 
after  the  date  thereof,  and  that  said  Russell 
Bank  and  its  receiver  did  not  make  such 
presentment  and  demand,  or  give  the  indors- 
ers notice  of  the  nonpayment  of  the  certificate 
within  a  reasonable  time;  and,  second,  that 
the  Russell  Bank  and  its  receiver  are  estop- 
ped to  assert  any  claim,  t)ecause  the  partner- 
ship owning  and  controlling  said  RusseU 
Bank  was  charged  with  notice  of  the  fall- 
ing condition  of  the  National  Bank  and-  of 
the  necessity  of  the  prompt  presentation  of 
such  certificate  of  deposit  to  avoid  loss  there- 
on, but  having  such  notice,  failed  to  act 
and  witliheld  such  paper,  without  demand  of 
payment  or  attempt  to  collect  until  long  after 
said  National  Bank  bad  closed  its  doors  In 
hopeless  bankruptcy.    On  the  issues  thus  join- 


•For  etlier  cases  sas  ssma  toplo  and  secUou  NUMBBR  la  Deo.  A  Am.  Digi.  1907  to  data,  A  Raporter  ladexes 


Digitized  by  VjOOQ  l€ 


920 


122  NORTHWESTERN  REPORTER. 


(lowm 


ed  a  Jury  was  walred  and  tbe  canse  tried 
and  submitted  to  the  court,  which  found  for 
tbe  defendant  on  both  propositions:  First, 
tliat  the  certificate  of  deposit  was  not  pre- 
sented for  payment  within  a  reasonable  time, 
thereby  releasing  the  indorsers  from  liability ; 
and,  second,  that  the  defendant's  plea  of  es- 
toppel is  sustained  by  tbe  record.  Tbe  re- 
ceiver appeals. 

1.  Tbe  appellant  takes  issue  upon  the  prop- 
osition that  the  Instrument  in  controversy 
.  was  not  presented  within  a  reasonable  time. 
It  is  not  denied  that  the  Instrument  is  in 
fact  payable  on  demand,  but  it  is  contended 
that  by  virtue  of  the  printed  matter  on  tbe 
back  of  the  instrument,  to  which  we  have  al- 
ready adverted,  the  bolder  of  the  certificate 
was  entitled  to  refrain  from  demand  for  a 
period  of  six  months,  and  thereby  be  entitled 
to  receive  interest,  and  that  a  delay  of  less 
than  that  period  must  be  said,  as  a  matter  of 
law,  to  be  not  unreasonable.  There  might  be 
some  force  In  this  contention  if  we  could 
say  as  a  matter  of  law  that  the  printed  mat- 
ter on  the  back  of  the  paper  is  a  part  of  tbe 
contract  between  the  depositor  and  the  bank. 
But  this  we  are  not  prepared  to  do.  In  the 
case  cited  and  relied  upon  by  appellant  (Klrk- 
wood  V.  Bank,  40  Neb.  484,  58  N.  W.  1016, 
24  L.  R.  A.  444,  42  Am.  St  Rep.  683)  tbe 
certificate  contained  an  express  stipulation 
that  if  the  deposit  was  left  In  the  bank  six 
months.  Interest  would  be  paid  thereon.  Such 
l8  not  the  case  here.  There  is  no  agreement 
or  suggestion  as  to  time  of  payment  or  inter- 
est expressed  in  tbe  certificate  in  suit.  Upon 
the  back  is  a  printed  paragn^aph  which  pur- 
ports to  be  an  "interest  agreement,"  signed 
by  the  printed  signatures  of  three  different 
banks,  including  the  First  National,  to  the 
effect  that  an  allowance  of  3  per  cent  inter- 
est would  be  made  on  deposits  left  undrawn 
for  six  months.  Its  .effect  would  seem  to  be 
that  of  a  species  of  "gentlemen'^  agreement" 
for  tbe  repression  of  undue  competition.  No 
reference  Is  made  to  it  in  the  body  of  tbe 
Instrument  and  so  far  as  the  evidence  shows. 
It  was  not  called  to  the  attention  of  the 
depositor,  nor  any  discussion  had  on  tbe  sub- 
ject of  interest  Indeed  on  tbe  appellant's 
objection  all  evidence  tending  to  develop  the 
facts  in  this  respect  was  excluded. 

But  even  if  we  concede  appellant's  conten- 
tion that  this  printed  matter  is  a  part  of 
tbe  contract  between  tbe  depositor  and  the 
bank,  we  still  think  it  was  competent  for  the 
trial  court  to  find,  under  the  circumstances 
of  this  case,  that  the  delay  in  making 
presentment  for  payment  was  unreasonable. 
That  this  is  an  instrument  payable  on  de- 
mand see  Code  Supp.  1007,  S  3060-a7.  Under 
the  same  act  tbe  presentment  of  such  an  in- 
strument, in  order  to  charge  Indorsers,  must 
be  made  within  a  reasonable  time  "after  its 
issue."  Code  Supp.  1907,  8  3060-a71.  And 
In  determining  whether  the  time  Is  reason- 
able regard  must  be  had,  not  only  to  the  na- 


ture of  the  instrument,  but  also  "to  the 
facts  of  the  particular  case."  Code  Supp. 
1907,  f  8060-al83.  Among  the  facts  of  this 
particular  case  are  the  close  relations  exist- 
ing between  the  two  banks,  and  the  infer- 
ence which  may  fairly  be  drawn  of  their 
more  or  less  Intimate  knowledge  of  each  oth- 
er's affairs;  the  position  with  each  occupied 
by  Crocker;  the  fact  that  these  months  of 
1907  marked  the  culmination  of  a  widespread 
panic  In  financial  affairs,  prompting  every 
holder  of  bank  paper  to  Increased  vigilance 
to  avoid  loss  thereon;  and  the  delay  of  a 
month  after  the  National  Bank  closed  its 
doors  before  any  demand  was  made  on  tbe 
receiver,  and  nearly  three  months  before  any 
presentment  was  made  to  tbe  bank — and 
these,  with  all  other  circumstances  developed 
In  the  record,  make  up  such  a  case  that  we 
cannot  say  that  the  trial  court  erred  In  hold- 
ing that  the  demand  of  payment  and  notice 
of  nonpayment  were  not  duly  made,  and  that 
the  indorsers  were  thereby  discharged.  The 
primary  question  thus  presented  was  one  of 
fact  and  not  of  law,  and  the  finding  of  the 
trial  court  thereon  has  the  force  and  effect 
of  a  Jury  verdict,  with  which  we  cannot  prop- 
erly Interfere.  It  is  due  to  counsel  that  we 
advert  to  bis  suggestion  that  as  we  have 
held  In  Elliott  v.  Bank,  128  Iowa,  275, 103  N. 
W.  777,  1  L.  R.  A.  (N.  S.)  1130,  111  Am.  St 
Rep.  198,  that  tbe  statute  of  limitations  does 
not  begin  to  run  upon  an  ordinary  certificate 
of  deposit  until  demand  and  refusal  of  pay- 
ment it  follows  of  logical  necessity  that  tbe 
liability  of  the  indorser  of  such  certificate 
continues  in  full  force  until  the  paper  is  ma- 
tured by  such  demand.  But  we  cannot  con- 
cede the  correctness  of  tbe  analogy  or  of 
the  deduction  sought  to  be  made.  The  holder 
of  such  paper  may  delay  the  demand  unrea- 
sonably as  respects  tbe  rights  of  the  Indorser, 
whose  liability  is  contingent  only  while  the 
delay  in  no  manner  prejudices  tbe  maker, 
whose  liability  is  original  and  absolute.  For 
the  protection  of  the  former  the  statute,  as 
we  have  seen,  provides  that  presentment  and 
notice  of  nonpayment  of  such  paper  In  order 
to  bind  him  must  be  made  within  a  reason- 
able time  after  "its  issue."  The  bolder  must 
act  within  that  limit  If  he  wishea  to  retain 
the  benefit  of  the  Indorsement 

2.  The  conclusion  reached  in  the  preceding 
paragraph  of  this  opinion  renders  it  unneces- 
sary to  discuss  or  pass  upon  the  alleged  er- 
rors as  to  the  findings  and  rulings  of  the 
trial  court  on  the  issue  of  estoppel.  The 
question  as  to  the  extent  to  which  the  Rus- 
sell Bank  and  Its  receiver  are  bound  by  tbe 
knowledge  of  Crocker  is  one  not  In  all  re- 
spects easy  of  solution;  and,  there  being  no 
present  necessity  for  entering  that  field  of 
inquiry,  we  shall  not  attempt  it 

For  reasons  stated  In  the  first  paragraph 
of  the  opinion,  the  Judgment  of  the  district 
court  Is  aflirmed. 


Digitized  by 


Google 


Iowa) 


HAARBN  V.  MODLD. 


921 


'  HAARRN  ▼.  MOULD,  District  Jndga. 

STEVENSON  t.  SAME. 
(Supreme  Court  of  Iowa.    Oct.  26,  1900.) 

1.  IWTOXICATIWO  LlQUOKS  (|  279*)— INJUWO- 
TION  —  ViOLATIOM  —  COHTKMPT  —  PROCEID- 
IN08. 

Under  Code  189T.  !  2407,  providing  that 
contempt  proceedings  for  violating  an  injunction 
■  re  commenced  by  filing  witli  tlie  clerk  an  in- 
formation setting  out  the  facta  constituting  the 
violation,  the  foundation  of  the  proceeding  is 
the  information,  and  it  is  therefore  not  essential 
to  the  conrt's  jurisdiction  that  a  precept  or 
warrant  to  bring  the  accused  into  court  Issue. 
[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Cent.  Dig.  {  414;    Dec.  Dig.  I  279.*] 

2.  iNToxiCATiNO  Liquors  (}  279*)— Injunc- 
tion —  Violation  —  Contempt  —  Proceed- 
ings. 

Under  Code  1897,  S  2407,  regulating  pro- 
ceedings for  contempt  in  violating  liquor  injunc- 
tions, failure  to  attach  a  duly  authenticated  copy 
of  the  injunction  decree,  alleged  to  have  been 
violated,  to  the  information  was  not  a  Jurisdic- 
tional defect. 

[Eld.  Note.— For  other  cases,  see  Intoxicating 
Liquors,.  Cent.  Dig.  |  414 ;   Dec.  Dig.  {  279.*] 

8.  Intoxicating  Liquobs  (J  280*) — Objection 

TO   JUBISDICTIOM    AND    EVIDENCE  —  FAILURE 

TO  Rule. 

Failure  of  a  trial  conrt  to  rule  on  objec- 
tions by  accused  to  the  court's  jurisdiction  and 
to  the  Introduction  of  evidence  is  ground  for 
reversal,  in  case  improper  evidence  is  introduc- 
ed to  bis  prejudice. 

[G<d.  Note.— For  other  cases,  see  Intoxicating 
Liquorst  Cent.  Dig.  {  415;   Dec.  Dig.  (  280.*] 

4.  Intoxicating  Liquobs  (J  280*)— Violation 
OP  Injunction  —  Contempt— Appeal— Cur- 
ing  Ebror. 

Where,  in  a  proceeding  for  contempt  for 
violating  a  liquor  injunction,  the  court  did  not 
rule  on  a  jurisdictional  objection,  but  proceeded 
to  the  hearing,  and,  after  accused  had  declined 
to  offer  testimony  in  rebuttal  of  that  offered  by 
prosecutor,  the  court,  before  entering  any  de- 
cision, of  its  own  motion  set  aside  the  submis- 
sion and  made  an  entry  expressly  overruling  the 
Jurisdictional  objection,  and  offered  accused  an 
opportunity  to  introduce  whatever  evidence  he 
desired  to,  the  court's  irregularity  in  omitting 
to  rule  on  the  objection  immediately  was  cured. 
[Ed.  Note. — For  other  cases,  sec  Intoxicating 
Liquors,  Cent.  Dig.  g  415 ;   Dec.  Dig.  {  280.*] 

6.  Evidence  (J  43*)— Judicial  Notice. 

The  trial  court  is  not  authorized  to  take 
Judicial  notice  of  its  records,  judgments,  and 
orders  in  another  and  different  proceeding. 

\Kd.   Note.— For  other  cases,   see   Evidence, 
Cent.  Dig.  U  62-65;   Dec  Dig.  {  43.*] 

6.  Evidence  (S  43*)— Judicial  Notice. 

A  trial  court  will  take  Judicial  notice  of 
'  prior  orders  and  proceedings  in  the  same  case, 
without  formal  offer  or  physical  production  of 
the  records  In  evidence,  and  this  includes  actions 
of  a  collateral  character,  especialiy  where  the 
object  of  the  proceedings  is  to  enforce  a  Judg- 
ment or  decree  entered  in  the  principal  case. 

[Ed.    Note.— For   other   cases,    see    Evidence, 
Cent.  Dig.  H  62-65;   Dec.  Dig.  {  43.*] 

7.  Intoxicating  Liquobs  (§  279*)— Violation 
OF  Injunction— Contempt  Pboceedings. 

Contempt  proceedings  for  violation  of  an 
injunction  against  the  unlawful  sale  of  liquors 
may  be  instituted  and  prosecuted  under  the  title 
of  the  action  in  which  the  injunction  issues. 

[Ed.  Note.— Fbr  other  cases,  see  Intoxicating 
Liquors,  Cent.  Dig.  {  414;   Dec  Dig.  (  279.*] 


8.  Evidence  (J  43*)  —  Contempt  —  Judicial 

Notice. 

In  a  proceeding  for  violation  of  a  liquor 
injunction,  it  was  not  necessary  that  the  in- 
formant sliould  offer  the  decree  alleged  to  have 
l>een  violated,  as  the  court  would  take  Judicial 
notice  thereof. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  H  62-63;    Dec.  Dig.  f  43.*] 

9.  Evidence  (8  1*)— Judicial  Notice. 

Judicial  notice  does  not  depend  on  the  ac- 
tual knowledge  of  the  judges;  they  bein^  re- 
quired, when  the  fact  is  alleged,  to  investigate 
and  refresh  their  recollection  by  resorting  to 
any  means  which  they  may  deem  sufficient  and 
proper. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  i  1 ;  Dec  Dig.  i  1.*] 

Appeal  from  District  Court,  Woodbury 
County;  David  Mould,  Judge. 

Original  proceedings  Instituted  In  tills 
court  to  review  the  acts  of  the  respondent, 
as  judge  of  the  district  court,  in  finding  the 
complainants  guilty  of  a  contempt  and  as- 
sessing a  penalty  therefor.  The  two  cases 
are  presented  in  a  single  record,  and  depend 
upon  altogether  similar  facta.  Both  will 
be  disposed  oi  In  a  single  opinion.  Dis- 
missed. 

T.  P.  Murph.v,  for  complainants.  Jno.  F. 
Joseph,  for  respondent. 

WEAVER,  J.  The  return  of  the  respond- 
ent, to  which  alone  this  court  must  iook 
for  the  facts  In  the  case,  shows  that  on  April 
4,  1908,  one  H.  H.  Sawyer  filed  in  the  ofllce 
of  the  cierk  of  the  Woodbury  district  court 
an  information  charging  Frank  Haaren,  com- 
plainant, with  contempt  of  the  authority  of 
said  court  In  the  violation  of  an  Injunction 
theretofore  issued  against  him  at  the  suit 
of  said  Sawyer.  A  copy  of  the  alleged  de- 
cree was  attached  to  the  information,  show- 
ing that  at  the  suit  of  said  Sawyer  the  said 
district  court,  Hon.  John  F.  Oliver,  presiding, 
did  on  June  8,  1907,  permanently  enjoin  and 
restrain  the  said  Haaren  from  the  traffic  In 
intoxicating  liquors  contrary  to  law,  at  any 
and  ali  places  within  the  Fourth  Judicial 
district  of  Iowa.  Acting  upon  this  informa- 
tion, the  Hon.  William  Hutchinson,  one  of 
the  Judges  of  said  district  court,  issued  a 
precept  for  the  production  of  said  accused 
person  before  him  or  some  other  Judge  of 
the  same  district  for  hearing  and  trial  on 
said  charge.  Said  precept  was  made  re- 
turnable on  April  13,  IOCS,  on  which  date 
the  said  Haaren  appeared  before  the  said 
district  court,  the  Hon.  David  Mould,  re- 
spondent herein,  being  the  Judge  presiding, 
and  by  agreement  the  hearing  on  the  con- 
tempt proceedings  were  continued  until 
April  18,  1908.  At  the  time  so  fixed  a  bear- 
ing was  had  before  said  court  upon  the  mat- 
ters charged  in  the  information,  the  said 
Haaren  being  present  and  represented  by 
counsel.  Before  any  evidence  had  been  in- 
troduced, the  said  accused  objected  to  the 


•For  Olber  cases  ■••  ssm*  topic  and  section  NUMBER  in  Dec.  *  Am.  Digs.  lilOT  to  date,  ft  ReiMtrter  InoexM 


Digitized  by  VjOOQ  l€ 


922 


122  NORTHWESTERN  REPORTER. 


(Iowa 


Jnrtsdictlon  ot  the  conrt  to  entertain  said 
proceedings  because  the  order  or  precept  by 
which  he  had  been  called  Into  court  to  an- 
swer was  Issued  by  one  of  the  Judges  at  a 
time  when  the  conrt  was  In  actual  session. 
Without  ruling  on  the  objection  the  court 
proceeded  to  the  hearing  of  the  testimony 
offered  on  the  part  of  the  Informant  At 
the  close  of  said  testimony,  the  accused  of- 
fering no  testimony  In  his  own  behalf,  a 
submission  of  the  matter  was  taken.  There- 
after, and  before  entering  any  decision,  the 
court  on  Its  own  motion,  and  over  the  ot>- 
Jectlon  of  the  accused,  set  aside  the  submis- 
sion and  made  an  entry  expressly  OTerruUng 
the  Objection  to  Its  Jurisdiction,  and  offered 
the  accused  opportunity  to  Introduce  eyl- 
dence  In  his  defense  If  he  desired  to  do  so. 
Declining  the  opportunity  thus  offered,  the 
accused  moved  to  arrest  Judgment  against 
him'  on  the  following  grounds:  (1)  The 
proceedings  were  Instituted  before  a  judge, 
and  not  before  the  court,  although  the  court 
was  then  In  session.  (2)  No  authenticated 
copy  of  the  alleged  injunction  was  furnished 
to  the  Judge  or  attached  to  the  information. 
<8)  The  proceeding  was  not  entered  on  the 
calendar  of  the  court,  and  no  order  Issued 
by  the  court,  the  same  being  Issued  by  the 
Judge  as  in  vacation.  (4)  There  Is  no  evi- 
dence of  any  violation  of  an  Injunction, 
in  that  no  record  entry  of  the  decree,  or  any 
authenticated  copy  thereof,  has  been  intro- 
duced In  evidence.  (5)  There  Is  no  compe- 
tent evidence  showing  the  alleged  acta  by 
the  accused.  The  court  denied  this  motion, 
and  thereupon  entered  Judgment,  finding  the 
accused  guilty  of  contempt  as  charged,  and 
ordering  that  he  pay  a  fine  of  $200  and 
costs.  The  respondent  makes  further  return 
that  the  decree  of  injunction  which  the  ac- 
cused was  found  to  tiave  violated  was  en- 
tered by  said  court  when  presided  over  by 
Hon.  John  F.  Oliver,  Judge,  and  that  the  rec- 
ord eatry  of  said  decree  was  not  offered  or 
presented  In  evidence  on  the  hearing  of  the 
charge  of  contempt,  but  the  court  on  said 
bearing,  acting  on  its  own  motion,  took 
Judicial  notice  of  said  decree.  The  grounds 
upon  which  the  writ  of  certiorari  Is  sought 
to  be  sustained,  and  the  Judgment  entered 
against  the  complainant  herein  annulled,  are 
substantially  those  stated  in  the  motion  for 
arrest 

1.  The  objection  to  the  Jurisdiction  of  the 
court  is  not  well  taken.  The  precept  or  war- 
rant by  which  the  accused  person  Is  brought 
into  court  Is  not  essential  to  the  Jurisdic- 
tion of  the  court  to  hear  and  try  the  charge 
of  contempt  The  foundation  of  the  pro- 
ceedings— that  which  authorizes  the  court 
to  act  in  the  premises — is  the  Information. 
In  the  language  of  the  Code  (section  2047)  the 
proceedings  are  "commenced  by  filing  with 
the  clerk  of  the  court  an  information  under 
oath  setting  out  the  alleged  facts  constituting 
such  violation."  The  office  of  the  precept 
warrant,  or  citation  la  to  bring  the  accused 


Into  court,  and  give  him  an  opportunity  to 
be  heard  in  his  defense.  He  may  waive  the 
issuance  or  service  of  such  process  and  ap- 
pear to  the  proceedings,  and  when  once  In 
court,  he  cannot  be  heard  to  question  its 
jurisdiction  because  of  irregularity  in  the  Is- 
suance of  the  prec^t,  IX  the  information 
be  sufficient  In  form  and  substance  and  du- 
ly filed.  State  v.  Thompson,  130  Iowa,  227, 
106  N.  W.  515.  Nor  Is  the  faUure  to  attach 
to  the  Information  a  duly  authenticated 
copy  of  the  decree  alleged  to  have  been  vio- 
lated a  valid  Jurisdictional  objection.  It  la 
true  that  in  the  general  cliapter  upon  the 
subject  of  Injunctions  (Code,  {  4372)  It  is 
provided  that  a  judge  In  vacation  may  issue 
a  precept  for  the  attachment  of  a  person  al- 
leged to  have  violated  a  decree,  on  being  fur- 
nished an  authoiticated  copy  of  the  decree 
and  satisfactory  proof  of  the  alleged  viola- 
tion of  its  provisions,  and  it  may  be  that  the 
court  or  a  Judge  thereof  could,  in  the  In- 
stant case,  have  pursued  the  course  here 
pointed  out,  but  the  Legislature  has  seen  fit 
to  make  special  provision  as  to  the  proce- 
dure for  the  trial  and  punishment  of  persons 
violating  liquor  Injunctions.  See  C!ode,  | 
2407,  above  cited.  These  provisions  do  not 
include  any  requirement  for  attaching  an 
authenticated  copy  of  the  decree  to  an  In- 
formation charging  its  violation,  and  we 
think  its  omission  Is  not  fatal  to  a  court's 
Jurisdiction  to  hear  and  pass  upon  the  merits 
of  the  charge.  McGlasaon  v.  Scott,  112  Iowa, 
289,  83  N.  W.  974. 

2.  It  la  argued  that  the  record  discloses 
fatal  error  In  the  act  of  the  trial  court  in 
declining  to  rule  upon  the  objection  made  by 
the  accused  to  its  jurisdiction  and  to  the  in- 
troduction of  evidence.  It  is  the  right  of  the 
accused  to  have  his  objections  ruled  upon, 
and  If  that  right  is  not  recognized,  with  the 
result  that  improper  evidence  Is  bitroduced 
to  his  prejudice.  It  would  doubtless  call  for 
a  reversal.  McGlasson  v.  Scott,  supra.  But 
the  record  here  discloses  no  error  of  this 
kind.  The  evidence  offered  was  pertinent 
and  competent  Moreover,  the  court  In  re- 
opening the  case  and  entering  its  rulings  up- 
on the  obJectlonB  and  giving  the  accused  an 
opportunity  to  offer  evidence  in  defense,  suffi- 
ciently cured  the  irregularity.  If  any.  In  its 
prior  action. 

3.  The  one  serious  objection  made  by  the 
complainant  herein  has  reference  to  the  omis- 
sion by  the  informant  to  offer  In  evidence  the 
decree  alleged  to  have  been  violated,  and  to 
the  act  of  the  court  in  taking  judicial  notice 
of  such  decree.  It  Is  fairly  well  settled  tbiat 
in  the  trial  of  a  case  the  court  is  not  author- 
ized to  take  Judicial  notice  ot  its  records, 
judgments,  and  orders  in  another  and  differ- 
ent proceedings.  Baker  v.  Mygatt,  14  Iowa, 
431 ;  Enlx  v.  Miller,  64  Iowa,  651,  6  N.  W. 
722;  Lioomls  v.  Griffen,  78  Iowa,  484,  43  N. 
W.  296.  But  the  court  wlU  take  judicial  no- 
tice of  prior  orders  and  proceedings  in  the 
same  case  without  the  necessity  of  any  form- 


Digitized  by  VjOOQ  l€ 


Iowa) 


DOLAN  V.  MAXWELU 


923 


al  offer  or  physical  production  of  tbe  record 
In  evidence.  Poole  t.  Seney,  70  Iowa,  275, 
24  N.  W.  620,  SO  N.  W.  684 ;  Brucker  v.  State, 
19  Wis.  539;  Farrar  t.  Bates,  55  Tex.  193; 
State  T.  Olds,  106  Iowa,  114,  76  N.  W.  644; 
State  T.  SteTens,  56  Kan.  720,  44  Pac.  992; 
Dlnea  ▼.  People,  39  III.  App.  565;  Bailey  t. 
Kerr,  180  111.  412,  54  N.  B.  165;  HoUenbach 
T.  Schnabel,  101  Cal.  812,  35  Pac.  872,  40 
Am.  St  Rep.  57;  State  v.  Bowen,  16  Kan. 
475;  7  Bncy.  Evidence,  999.  This  has  been 
Interpreted  to  Inclade  the  authority  of  a 
court  in  actions  of  a  collateral  character,  and 
especially  where  the  object  or  parpose  of  the 
proceedings  is  to  enforce  a  judgment  or  de- 
cree entered  in  the  principal  case.  Conlee 
Lumber  Ca  v.  Meyer,  74  Iowa,  403,  38  N. 
W.  117;  Flood  V.  Libby,  88  Wash.  366,  80 
Pac.  533,  107  Am.  St  Bep.  851;  Kelly  v. 
Glbbs,  84  Tex.  143,  19  S.  W.  380,  563;  Ol- 
son V.  Brady,  76  Minn.  8,  78  N.  W.  864.  We 
have  held  titat  in  garnishment  proceedings 
the  court  will  take  Judicial  notice  of  the 
Judgment  in  the  principal  case.  Kenosha 
Stove  Co.  V.  Sbedd,  82  Iowa,  544.  48  N.  W. 
933.  It  has  also  been  held  that  contempt 
proceedings  for  the  violation  of  an  Injunc- 
tion against  the  unlawful  traffic  in  intoxi- 
cants may  be  Instituted  and  prosecuted  un- 
der the  title  of  the  action  in  which  the  in- 
junction Issues.  Manderscheld  v.  District 
Court  69  Iowa,  240,  28  N.  W.  551.  While 
the  charge  against  the  complainant  partakes 
somewhat  of  a  criminal  character,  its  pur- 
pose Is  simply  to  compel  pbedlence  to  the 
order  or  decree  entered  In  the  main  case,  and 
It  would  be  a  strange  limitation  upon  the 
power  of  the  court  if,  when  a  party  is  charg- 
ed with  contemptuous  disregard  of  its  decree. 
It  can  act  only  upon  the  production  of  proof 
by  the  informant  as  to  the  existence  and 
terms  of  such  decree.  In  our  Judgment  pro- 
ceedings to  punish  contempt  of  an  order  or 
decree  of  the  court  are  so  far  identified  with 
the  action  in  which  the  order  or  decree  was 
entered  that  the  court  may  take  Judicial  no- 
tice thereof  without  proof  or  profert  of  the 
record.  Such  is  the  substance  of  our  hold- 
ing in  Jordan  v.  Circuit  Court  69  Iowa,  181, 
28  N.  W.  548,  and  Ferguson  v.  Wheeler,  126 
Iowa,  111,  101  N.  W.  63&  See,  also.  State  v. 
Jones,  20  Wash.  576,  56  Pac.  360;  State  v. 
Porter,  76  Kan.  411,  91  Pac.  1073,  13  L.  R. 
A.  (N.  S.)  462;  State  T.  Thomas,  74  Kan.  360, 
86  Pac.  499. 

The  case  of  ftfcGlasson  v.  Scott  supra,  is 
not  an  authority  to  the  contrary.  In  that 
case  the  rule  as  to  Judicial  notice  was  nei- 
ther mentioned  nor  discussed,  but  the  holding 
there  was  simply  to  the  effect  that  the  exist- 
ence of  a  decree  could  not  be  established  by 
the  production  of  an  uncertified  copy.  Nor 
is  the  rule  any  less  applicable  where  the  de- 
cree in  question  was  entered  at  a  term  of 
court  presided  over  by  a  Judge  other  than 
tlie  one  presiding  in  the  contempt  proceed- 


ings. The  coart  remains  the  same  without 
regard  to  the  identity  of  the  judge.  Nor  does 
the  fact  that  the  presiding  Judge  may  have 
no  personal  knowledge  or  remembrance  of 
the  decree  which  has  been  violated  in  any 
manner  prevent  the  application  of  the  rule 
of  Judicial  notice,  for  in  such  case  the  court 
will  take  cognizance  o£  the  true  state  of  the 
record  by  referring  to  the  proper  books,  docu- 
ments, and  other  sources  of  Information. 
Clare  v.  State,  5  Iowa,  600 ;  Gardner  v.  Col- 
lector, 73  U.  S.  499,  18  L.  Ed.  890;  D.  S.  v. 
Cotton,  Fed.  Cas.  No.  15,958;  Hoyt  v.  Rus- 
sell, 117  n.  S.  401,  6  Sup.  Ct  881,  29  Ii.  Ed. 
914.  As  has  been  said  by  the  Minnesota  conrt: 
"Judicial  notice  does  not  depend  on  the  ac- 
tual knowledge  of  the  Judges.  When  the 
fact  is  alleged,  they  must  investigate,  and 
may  refresh  their  recollection  by  resorting 
to  any  means  which  they  may  deem  safe  and 
proper."  State  v.  Steams,  72  Minn.  200,  75 
N.  W.  210.  This  mle  has  the  substantially 
nnlform  support  of  all  the  authorities  upon 
the  subject  and  we  can  conceive  of  no  more 
appropriate  case  for  its  application  than  tlie 
one  presented  by  the  record  before  us. 

The  trial  court  did  not  exceed  its  Jurisdic- 
tion, nor  otherwise  act  Illegally  In  holding 
the  complainant  guilty  of  contempt  and  the 
writ  of  certiorari  is  therefore  dismissed. 


DOI/AN  T.  MAXWEIiL  et  aL 
(Supreme  Court  of  Iowa.    Oct  23,  1909.) 

1.  Costs  (I  47*)— Disci.aimkb  by  Defendant 

— DiSCBETION  OF  COUBT. 

Under  Code  1897,  {  4225,  providing  that  If 
defendant  disclaim  all  right  adveTse  to  plain- 
tiff, he  shall  recover  his  costs,  otherwise  costs 
shall  be  in  the  discretion  of  toe  court,  even  If 
failure  by  defendant  to  file  his  disclaimer  at  the 
appearance  term  deprived  him  of  the  right  to 
demand  an  exemption  from  costs,  the  matter 
was  still  In  the  discretion  of  the  court 

[Ed.  Note.— For  other  cases,  see  Costa^  Cent 
Dig.  18  185-191 ;   Dec.  Dig.  i  47.*] 

2.  PABTIKS  (§  40*)— INTEBVEWTION. 

A  petition  to  qniet  title  alief^ed  that  plain- 
tiff was  the  owner  of  realty  which  had  been 
sold  for  taxes  to  defendant,  to  whom  a  tax  cer- 
tificate issued ;  that  In  making  such  purchase 
defendant  acted  as  agent  for  a  mortgagee  of 
the  realty;  that  mortgagee  was  antborized  to 
pay  the  taxes  and  recover  therefor  under  the 
mortgage,  which  was  thereafter  foreclosed,  the 
contention  of  plaintiff  being  that  such  purchase 
by  the  mortgagee's  agent  constituted  a  payment 
of  the  taxes,  and  that  the  foreclosure  decree  ad- 
judicated the  amount  due  on  the  mortgage,  in- 
cluding the  taxes  so  paid.  Defendant  filed  a 
disclaimer,  and  averred  that  he  had  assigned  the 
certificate  of  sale  to  mortgagee,  and  it,  in  turn, 
to  another.  Held,  that  the  mortgagee's  assi^ee, 
as  a  party  in  interest  was  properly  permitted 
to  intervene  and  defend. 

[Ed.  Note.— For  other  cases,  see  Parties,  Cent 
Dig.  H  61-67;    Dec.  Dig.  {  40.*] 

Appeal  from  District  Court  Lee  County; 
Henry  Bank,  Judge. 

This  is  an  action  to  quiet  title.  It  was 
brought   originally   against    W.    O.    Howell 


•Vsr  Mlier  easM  lee  same  toplo  and  ssctton  NUMBER  la  Deo.  *  Am.  Digi.  1907  to  date.  *  Roportor  ladezts 


Digitized  by  VjOOQ  l€ 


924 


122  NORTHWESTERN  REPORTER. 


(Iowa 


alone  as  defendant  The  defendant  Howell 
filed  a  disclaimer  of  any  Interest,  and  other 
parties  intervened.  There  was  a  decree  for 
the  plaintiff  against  the  defendant  Howell 
without  costs.  There  was  also  an  order  per- 
mitting John  Maxwell  to  Intervene  as  de- 
fendant.   Plaintiff  appeals.    Affirmed. 

A.  Li.  parsons  and  "B.  A.  Dolan,  for  appel- 
lant   H.  Scott  Hovrell  &  Son,  for  appellees. 

EVANS,  C.  J.  It  appears  from  the  petition 
that  the  plaintiff  is  the  owner  of  certain  real 
estate  described  therein,  which  was  sold  for 
taxes  to  the  defendant  W.  C.  Howell,  in  the 
year  1900,  and  to  whom  a  tax  certificate  was 
Issued  therefor.  It  was  averred  that  in  mak- 
ing such  purchase  defendant  Howell  acted 
as  agent  for  a  mortgagee,  the  Midland  Blast 
Ck>mpany,  which  was  authorized  by  Its  mort- 
gage to  pay  the  taxes  and  to  recover  there- 
for under  Its  mortgage,  and  that  such  mort- 
gage was  afterwards  foreclosed  and  decree 
entered  thereon.  The  contention  of  the  plain- 
tiff was  that  such  purchase  at  tax  sale  by 
the  agent  of  mortgagee  constituted  a  pay- 
ment of  the  taxes  under  the  mortgage,  and 
that  the  decree  of  foreclosure  of  the  mort- 
gage adjudicated  the  amount  due  thereon, 
Including  the  taxes  so  paid.  The  petition 
asked  that  the  cloud  caused  by  the  tax  sale 
be  removed  from  his  title.  The  defendant 
Howell  appeared  and  filed  a  motion  for  more 
specific  statement  The  plaintiff  confessed 
the  motion,  and  amended  his  petition.  There^ 
upon  the  defendant  Howell  filed  a  disclaimer 
of  any  Interest  in  the  real  estate,  and  averred 
that  prior  to  the  commencement  of  the  miit 
be  had  assigned  the  certificate  of  sale  to 
Midland  Blast  Company,  and  that  such  Mid- 
land Blast  Company  had  assigned  the  same 
to  John  Maxwell.  On  the  same  day  John 
Maxwell  appeared  and  filed  a  motion,  asking 
leave  to  intervene  as  defendant  Afterwards, 
on  motion  of  the  plaintiff,  the  court  entered 
a  decree  quieting  the  title  of  plaintiff  against 
'  defendant  W.  C.  Howell,  but  without  costs.  It 
also  entered  an  order  i>ermitting  Maxwell  to 
intervene  as  defendant 

1.  Appellant's  first  complaint  is  that  he  was 
entitled  to  recover  costs  against  defendant 
Howell  notwithstanding  the  disclaimer.  The 
reason  urged  Is  that  the  disclaimer  was  not 
made  at  the  appearance  term.  It  appears 
from  the  record  that  plaintiff's  "amended  pe- 
tition" was  filed  on  June  6,  1906.  It  is  stat- 
ed in  argument  that  this  was  the  last  day  of 
the  May  term.  The  disclaimer  was  filed  on 
September  4,  1906,  which  we  aissume  was 
in  the  next  succeeding  term  of  court  Sec- 
tion 4225,  Code,  is  as  follows:  "If  the  de- 
fendant appears  and  disclaims  all  right,  title, 
and  Interest  adverse  to  the  plaintiff,  he  shall 
recover  his  costs.  In  all  other  cases  the 
costs  shall  be  in  the  discretion  of  the  court" 
We  have  no  occasion  to  determine  whether 


the  ftiilure  of  the  defendant  to  file  his  dis- 
claimer at  the  appearance  term  deprived  him 
of  the  right  to  demand  an  exemption  from 
costs.  If  it  did,  the  question  was  still  left, 
under  the  statute,  "in  the  discretion  of  the 
court."  Its  discretion  was  fairly  exercised, 
and  we  can  find  no  fault  with  it 

2.  The  decree  and  the  order  in  qnestlon 
were  entered  on  March  30,  1908.  The  order 
permitting  Maxwell  to  defend  required  an 
answer  to  be  filed  the  following  day.  The 
record  does  not  disclose  whether  any  answer 
was  filed,  nor  whether  any  further  proceed- 
ings were  ever  had.  Plaintiff's  appeal  was 
taken  September  23,  1908.  The  court  prop- 
erly permitted  Maxwell,  as  a  party  in  inter- 
est to  appear  and  defend.  And  even  if  such' 
order  of  the  court  were  erroneous.  It  Is  not 
made  to  appear  by  this  record  that  the  plain- 
tiff suffered  any  prejudice  by  It  We  do  not 
pass  upon  the  merits  of  Maxwell's  defense^ 
Tnls  Is  not  presented  to  us,  except  by  In- 
ference. He  Is  entitled  to  his  day  In  court 
We  think  the  trial  court  acted  within  its  dis- 
cretionary power  on  both  questions. 

Aflirmed. 


SAWTEE  T.  TERMOHLBN  et  aL 
(Supreme  Court  of  Iowa.    Oct  25,  1909.) 

1.  Intoxicating  Liquors  (S  263*)  —  Pbbma.- 
KENT  Injunction. 

The  court,  being  satisfied  that  directors  of 
a  fair  association  had  abandoned  the  sale  of 
liquor  privileges  t>n  the  fair  grounds,  had  the 
right  to  den^  a  permanent  Injunction  against 
the  sale  of  hqnor. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Dec  Dig.  !  263.*] 

2.  INTOXICATINQ  LiquoBS  {§  273*)— Injuwo- 
TioR— Tempobabt  Wbit— Riobt  to  as  Mat- 
ter OF  COUBSE. 

Under  Code,  t  2405,  providing  that  if  ao 
application  to  restrain  a  nuisance  shall  be  con- 
tmued  at  defendant's  instance,  a  writ  shall  be 
granted  as  a  matter  of  course,  no  discretion  is 
lodged  in  the  court,  and  soch  mandate  should  be 
observed,  and  a  temporary  writ  granted  on  con- 
tinuance. 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Uquors,  Cent  Dig.  g  409;    Dec.  Dig.  {  273.*] 

3.  Apfeai.  ANn  Ebbob  (§  1170*)— Detebhina- 
TioN  AND  Disposition  o»  Cause— Rkvebsai 
Unavailing. 

Notwithstanding  the  Supreme  Court  is  of 
the  opinion  that  under  Code,  g  2405,  the  trial 
court  should  have  granted  a  temporary  injunc- 
tion as  a  matter  of  course  when  it  ordered  a 
continuance  at  defendant's  Instance,  yet,  where 
the  question  is  a  moot  one,  the  Supreme  Court 
is  not  justified  in  reversing  the  final  decree  or 
doing  more  than  indicating  its  opinion  that  the 
trial  conrt  should  have  issued  the  temporary 
injunction  when  it  granted  the  continuance. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  §i  4540-4545;  Dec.  Dig.  | 
1170.*] 

Appeal  from  District  Court  Woodburr 
County;  P.  R.  Gaynor,  Jtidge. 

Suit  In  equity  to  restrain  defendants  from 
conducting  a  liquor  nuisance.    Both  tempo- 


•For  other  cuet  ie«  Mun*  topic  and  Mctloa  NUMBBB  in  Deo.  *  Am.  Dlga.  1907  to  date,  *  Reporter  Indexes 


Digitized  by 


L-oogle 


Iowa) 


SAWYER  T.  TBRMOHLEN. 


925 


raiy  and  permanent  injunctions  were  asked. 
A  temporary  Injunction  issued  on  the  1st  day 
of  October,  1907,  a  continuance  of  the  ap- 
plication therefor  having  been  granted  in  the 
meantime.  Thereafter  the  case  was  heard  on 
the  merits,  resulting  In  a  decree  dismissing 
the  petition  and  refusing  the  Injunction,  but 
entering  Judgment  against  defendants  for 
all  the  costs  In  the  case.  Plaintiff  appeals. 
Affirmed. 

A.  D.  Collier,  for  appellant  Shull,  Fams- 
worth  &  Sammis,  for  appellees. 

DEBMER,  J.  The  defendant  the  Riverside 
Parle  Improvement  Company  was  at  the  time* 
complained  of  the  owner  of  the  premises  up- 
on which  It  Is  alleged  the  nuisance  existed. 
These  premises  were  known  as  the  Interstate 
Live  Stock  Fair  Grounds  of  Sioux  City,  Iowa. 
Defendant  Termohlen  occupied  and  controlled 
a  building  on  said  premises  in  which  it  was 
alleged  that  he  sold  and  kept  for  sale  Intoxi- 
cating liquors,  contrary  to  law.  The  other  de- 
fendants were  officers  and  directors  of  the  In- 
terstate Uve  Stock  Fair  Association,  and  les- 
sees and  occupants  of  the  grounds  hitherto 
referred  to.  This  fair  association  held  annual 
exhibitions,  and  In  the  year  1907  was  conduct- 
ing one  from  the  7th  to  the  14th  days  of  Sep- 
tember. It  Is  alleged  that  these  defendants 
gave  permission  to  Termohlen  to  conduct  his 
unlawful  business  during  the  1907  fair.  This 
action  was  commenced  on  the  7th  day  of  Sep- 
tember, 1907,  and,  upon  presentation  of  the 
petition  to  the  then  sitting  Judge  of  the  Fourth 
judicial  district,  an  order  was  made  fixing 
the  hearing  of  said  application  for  the  10th 
day  of  September,  and  ordering  that  notice 
thereof  be  given  to  the  defendants.  Defend- 
ants appeared  at  the  time  so  fixed,  filed  an- 
swer, and  also  a  motion  for  a  continuance 
based  upon  the  ground  that  the  defendants 
were  so  busy  In  the  conduct  of  the  exposition 
that  they  could  not  prepare  for  their  de- 
fense. This  motion  was  amended  on  the  11th 
day  of  September,  and  a  claim  was  then 
made  that  one  of  the  defendants  had  been  so 
Injured  In  an  automobile  accident  occurring 
on  the  evening  of  the  10th  of  September  that 
be  could  not  attend  court  or  look  after  any 
of  his  business  matters.  This  motion  was 
submitted  to  the  court  and  sustained,  and  the 
cause  continued  for  further  hearing  until 
the  24th  day  of  September,  1007.  Thereupon 
plaintiff's  counsel  asked  the  issuance  of  a 
temporary  writ  of  Injunction,  based  upon 
section  2405  of  the  Code,  which  provides,  In 
substance,  that.  If  such  application  be  contin- 
ued at  defendants'  Instance,  the  writ  as 
prayed  for  shall  be  granted  as  a  matter  of 
course.  This  application  was  denied.  It 
seems  that  the  case  came  on  for  hearing  on 
the  application  for  the  temporary  writ  on 
October  1,  1907,  and  at  that  time  it  was  stip- 
ulated and  agreed  by  aqid  between  the  par- 
ties that  a  temporary  writ  of  injunction 
should  Issue  as  prayed  without  bond,  and 


an  order  was  made  accordingly.  The  case' 
came  on  for  final  bearing  on  May  12,  1908, 
and  on  the  Stb  day  of  October  the  trial  court 
found  that  defendants  had  since  the  com- 
mencement of  the  action  quit  the  unlawful 
business  in  good  faith,  and  resolved  not  to 
again  permit  liquors  to  be  sold  on  their 
premises  in  violation  of  law.  In  view  of 
this  finding,  the  plaintiff's  petition  was  dis- 
missed, but  the  defendants  were  ordered  to 
pay  the  costs  of  the  action,  which  Included  an 
attorney's  fees  for  plaintiff's  attorney;  and 
Judgment  and  decree  was  entered  according- 
ly. Plaintiff  thereupon  appealed  to  this 
court,  bis  notice  reciting  that  he  had  appeal- 
ed from  the  Judgment  and  order  dismissing 
plaintiff's  petition  made  in  the  cause  and 
rendered  on  the  8th  day  of  October,  1908. 

The  burden  of  plaintlfTs  aogument  here  la 
that  the  trial  court  was  In  error  In  refusing 
to  sustain  his  motion  for  a  temporary  writ 
of  Injunction  because  of  the  continuance  of 
the  case  on  defendants'  motion.  True,  he  in- 
sists that  there  should  have  been  a  final  de- 
cree granting  the  permanent  injunction,  but 
It  Is  evident  that  little  reliance  is  placed  up- 
on this  contention.  The  trial  court  was  Jus- 
tified In  finding  that  the  directors  of  the  fair 
association,  which  association  had  complete 
charge  of  the  grounds  upon  which  the  nui- 
sance is  said  to  have  been  conducted,  at  a 
meeting  held  at  the  close  of  the  fair  resolved 
to  discontinue  the  practice  of  selling  liquor 
privileges,  and  declared  as  a  matter  of  fu- 
ture policy  that  no  liquors  of  any  kind  would 
be  permitted  to  be  sold  thereafter  on  the 
grounds  of  the  association  so  long  as  said 
association  had  any  control  of  or  anything 
to  do  with  the  fair  or  the  grounds  upon 
which  it  was  conducted.  The  trhil  court,  be- 
ing satisfied  that  defendants  had  abandoned 
for  all  time  the  Illegal  sale  of  liquors  upon 
the  grounds,  had  the  right,  and  It  was  its 
duty,  to  deny  the  permanent  Injunction  and 
refuse  to  enter  the  usual  decree.  In  any 
event.  Its  power  in  this  respect  was  discre- 
tionary, and  there  is  no  such  showing  in  this 
record  as  would  Justify  us  in  reversing  the 
action  of  the  trial  court  In  denying  the  per- 
manent writ.  See  Patterson  v.  Nlcol,  115 
Iowa.  283,  88  N.  W.  323 ;  Redley  v.  Greiner, 
117  Iowa,  679,  91  N.  W.  1033. 

2.  We  are  of  the  opinion  that  the  trial 
court  should  have  granted  the  temporary 
writ  as  a  matter  of  course  when  It  ordered 
the  continuance  of  the  case.  So  it  is  written 
in  the  law,  and  this  mandate  should  have 
been  observed.  Within  a  few  days  there- 
after, however,  the  trial  court  did  Issue  a 
temporary  writ,  and  this  was  In  full  force 
and  effect  until  the  final  hearing  of  the 
case.  These  temporary  writs  are  Issued  in 
aid  of  the  court's  Jurisdiction,  and  f'\T  the 
puri)ose  of  securing  orders  which  could  not 
otherwise  be  obtained  save  upon  final  hear- 
ing. They  are  Interlocutory  in  character,  and 
last  only  until  the  merits  of  the  case  are 


Digitized  by 


Google 


926 


122  NORTHWESTERN  REPORTER. 


(Iowa 


determined.  After  trial  upon  the  merits, 
tbere  is  no  occasion  for  tlie  Issuance  of  a 
temporary  writ,  Indeed,  no  court  would  thinlc 
of  Issuing  Bucti  an  order  after  a  final  de- 
cree, no  matter  what  the  ultimate  result 
The  question  presented  for  our  determination 
on  this  branch  of  the  appeal  is  a  moot  one, 
and,  should  we  reverse  the  order  of  the 
trial  court  denying  plalntlCTs  application 
for  a  temporary  writ.  It  would  avail  plain- 
tiff nothing;  for  the  reason  that  he  secured 
such  an  order  on  the  Ist  day  of  October, 
1907,  which  continued  down  to  the  time  of 
the  final  disposition  of  the  case.  A  reversal 
here  would  do  the  plaintiff  no  good,  for  an 
order  for  a  temporary  writ  of  injunction  can- 
not relate  bacic  so  as  to  be  of  any  consequence. 
As  nothing  but  a  moot  question  is  presented 
upon  this  branch  of  the  appeal,  and  could 
not  avail  the  plaintiff  in  any  event,  we  are 
not  justified  In  reversing  the  final  decree  or 
doing  more  than  to  Indicate  our  thought 
that  the  trial  court  should  have  granted  the 
temporary  injunction  at  the  time  It  issued 
the  order  for  a  continuance.  No  discretion, 
as  we  view  It,  was  lodged  in  the  trial  court. 

No  sufflcient  reason  appears  for  reversing 
the  final  decree,  and  it  must  be,  and  it  is, 
affirmed. 


BAKER  T.  INCORPORATED  TOWN  OP 
AKRON  et  al. 

(Supreme  Court  of  Iowa.    Oct  26,  1909.) 

1.  Watbbs  and  Water  Courses  (!  119*)— 
Diversion  op  Surface  Water— LixBiLmr. 

While  land  outside  of  a  municipality  and 
lower  than  the  land  therein  must  bear  its  prop- 
er servitude,  the  municipality  in  grading  and 
guttering  its  streets  acts  as  to  such  land  in  a 
proprietary  capacity,  and  it  cannot  collect  sur- 
face water  and  divert  the  same  on  such  land. 

[Ed.  Note.— For  other  cases,  see  Waters  and 
Water  Courses,  Cent.  Dig.  {§  131-134;  Dec. 
Dig.  i  119.*] 

2.  Waters  and  Water  Courses  (|  119*)  — 
Surface  Water— Diversion. 

The  owner  of  higher  land  has  no  right,  even 
in  the  course  of  the  use  and  improvement  of  his 

f>roperty,  to  collect  the  surface  water  on  his 
and  into  a  drain  or  ditch,  increased  in  quan- 
tity or  in  a  manner  different  from  the  natural 
flow,  and  divert  it  on  the  lower  land  of  another, 
to  the  injury  of  such  land. 

[Ed.  Note. — For  other  cases,  see  Waters  and 
Water  Courses,  Cent  Dig.  {{  131-134;  Dec. 
Dig.  i  119.*] 

8.  Waters  and  Water  Courses  ({  119*)  — 
Surface  Water— Diversion. 

The  liability  of  a  municipality  collecting 
surface  water  and  diverting  and  discharging  it 
on  lower  land  outside  of  its  limits  is  not  based 
on  negligence  in  improving  its  streets,  but  on 
the  fact  that  it  collected  and  discharged  surface 
water  in  a  manner  different  from  the  natural 
flow  thereof. 

WEd.  Note.— For  other  cases,  see  Waters  and 
ater  Courses,  Cent  Dig.   {{   131-134;    Dea 
Dig.  8  119.*1 


4.  Waters  and  Water  Courses  (I  119*)  — 
Surface  Water— Diversion. 

A  municipality  collecting  surface  water  and 
diverting  and  discharging  it  on  lower  land  out- 
side of  its  limits  cannot  escape  liability  therefor 
because  a  part  of  the  damage  to  such  land  was 
due  to  extraordinary  floods,  or  t>ecause  at  the 
difficulty  in  determining  the  exact  damage  caus- 
ed by  the  act  of  the  municipality. 

WEd.  Note. — For  other  cases,  see  Waters  and 
ater  Courses,  Cent  Dig.  U   131-134;    Dec. 
Dig.  t  119.*1 

5.  Appeai.  and  Error  (f  1178*)— Disposition 
OF  Cause  on  Appeal — Reicand  fob  Fub- 

THEB  FROCEEDINOS. 

Where  an  action  against  a  municipality  for 
flooding  lower  land  outside  of  its  limits  was  not 
tried  with  any  great  degree  of  care  on  the  issue 
of  the  amount  of  the  damages  because  the  mu- 
nicipality proceeded  on  the  theory  of  nonlia- 
bility, the  court,  on  appeal  from  an  erroneous 
judgment  of  dismissal,  will  remand  the  cause  for 
a  retrial  on  the  issue  of  damages. 

[Ekl.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  i  4015 ;   Dec.  Dig.  \  117a*) 

Appeal  from  District  Court,  Plymouth 
County;  Wm.  Hutchinson,  Judge. 

Action  to  recover  damages  for  the  flooding 
of  plaintiflTs  land  by  the  defendants  city 
and  the  railway  company,  and  for  an  injunc- 
tion to  restrahi  the  continuance  of  the  nui 
sauce.  The  case  was  tried  to  the  court  as 
in  equity,  and  at  the  conclusion  of  plaintiff's 
testimony  the  trial  could  sustained  a  motion, 
directing  a  decree  for  the  railway  company, 
from  which  no  appeal  has  been  talcen.  The 
case  proceeded  as  against  the  other  defend- 
ants, resulting  in  a  decree  dismissing  plain- 
tiff's petition,  and  he  appeals.  Reversed  and 
remanded. 

McDuffle  &  Keenan,  for  appellant  Zink  dc 
Roseberry  and  Sammls  dc  Bradley,  for  appel- 
lees. 

DEEMER,  J.  The  appellees  are  the  town 
of  Akron  and  its  mayor  and  city  council. 
Plaintiff  is  the  owner  of  a  large  tract  of  bot- 
tom land  lying  south  and  west  of  the  limits 
of  the  town,  and  he  claims  that  the  town  has 
so  graded  and  guttered  its  streets  as  to  col- 
lect and  discharge  the  surface  water  falling 
upon  the  lots  and  lands  within  its  limits  on 
to  plaintifTs  lands  in  a  manner  other  and 
different  from  the  way  In  which  it  passed 
off  prior  to  the  time  the  grading  and  gutter- 
ing was  done,  to  his  great  damage.  The  de- 
fendant .denies  that  It  has  collected  or  Is 
discharging  the  surface  water  from  Its  nat- 
ural course;  that,  in  any  event  it  had  the 
right  to  grade  its  streets  and  turn  surface 
water  from  its  natural  course;  that  it  was 
guilty  of  no  negligence  in  improrlng,  gutter- 
ing, and  grading  its  streets  t  that  it  had  the 
right  to  fight  surface  water,  treating  it  as 
a  common  enemy;  that  whatever  damage 
plaintiff  has  suffered  was  due  to  extraordinary 
floods;  and  that  in  no  event  is  the  town 
liable,  for  the  reason  that  it  was  given  full 
power  to  grade  and  gutter  its  streets. 

Plaintiff's  land  ll  considerably  lower  than 


•For  other  eases  sae  same  topic  and  secUon  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  *  Report«r  Indexes 


Digitized  by  VjOOQ  l€ 


Iowa). 


BAKER  ▼,  INCORPORATED  TOWN  OP  AKRON. 


927 


the  land  within  the  corporate  limits  of  the 
town,  and  mnst,  of  course,  l)ear  its  proper 
serrltudfe  But  it  Is  not  true,  as  counsel  con- 
tend, that  the  town  had  the  right  to  collect 
surface  water  originally  flowing  in  another 
direction  and  to  discharge  the  same  upon 
plalntllTs  land,  or  in  such  a  manner  as  that 
it  caused  an  overflow  of  plalntHTs  land,  to 
his  damage.  Plaintiff's  property  Is  not  with- 
in the  limits  of  the  town,  and  he  was  not 
amenable  to  the  order  and  direction  of  the 
city  council.  He  could  not  be  compelled  to 
bring  his  property  to  any  grade  established 
by  the  town  council.  In  so  far  as  the  town 
is  concerned,  he  bad  the  same  rights  against 
It  as  If  It  were  a  natural  person  who  was 
interfering  with  bis  rights  and  privileges. 
Collins  V.  City  of  Keokuk,  91  Iowa,  293,  59 
N.  W.  200.  Has  his  property  been  within 
the  town  limits,  a  different  question  would 
arise,  and  the  authorities  cited  for  defendant 
would  be  applicable.  In  Its  relations  to  land- 
owners outside  the  town  limits,  the  town 
bad  no  greater  rights  than  any  citizen  or 
private  corporation.  In  grading  and  gutter- 
ing Its  streets,  It,  so  far  as  outsiders  were 
concerned,  acted  in  a  proprietary  capacity, 
and  not  as  an  Instrumentality  of  government, 
and  nowhere  In  our  statutes  is  it  given  the 
right  to  collect  and  discharge  surface  water 
upon  an  adjoining  property  in  a  manner  dif- 
ferent from  the  way  In  which  nature  Intend- 
ed or  provided.  Noonan  v.  City  of  Albany, 
79  N.  X.  470,  35  Am.  Rep.  540.  In  this  case 
Andrews,  J.,  speaking  for  the  court,  said: 
"A  municipal  corporation  has  no  greater 
right  than  an  Individual  to  collect  the  sur- 
face water  from  its  lands  or  streets  into  an 
artlflclal  channel,  and  discharge  it  upon  the 
lands  of  another,  nor  has  It  any  immunity 
from  legal  responsibility  for  creating  or 
maintaining  nuisances.  Weet  T.  Tillage  of 
Brockport,  10  N.  Y.  172,  note;  Byrnes  v. 
City  of  Cohoes,  67  N.  Y.  204;  Haskell  v. 
City  of  New  Bedford,  108  Mass.  208 ;  Attor- 
ney General  v.  Leeds  Corporation,  L.  R.,  5 
Ch.  App.  583."  See,  also,  Eastman  T.  Mere- 
dith, 36  N.  H.  285,  72  Am.  Dec.  302 ;  Max- 
mlllan  v.  New  York,  62  N.  Y.  100,  20  Am. 
Rep.  468;  Oliver  v.  Worcester,  102  Mass. 
489,  S  Am.  Rep.  485;  O'Brien  v.  City,  25 
Minn.  331,  33  Am.  Rep.  470. 

Assuming,  then,  that  the  defendant  town 
occupies  no  different  relation  to  plaintiff 
than  If  It  had  been  a  private  corporation 
or  an  Individual,  we  look  to  the  law  of  this 
state  with  reference  to  the  discharge  and 
diversion  of  surface  waters.  We  have  adopt- 
ed what  Is  known  as  the  civil  law  rule  In 
the  leading  case  of  Livingston  v.  McDonald, 
21  Iowa,  160,  89  Am.  Dec.  563.  The  sub- 
stance of  that  rule  is  that  the  owner  of  high- 
er land  has  no  right  even  in  the  course  of 
the  use  and  improvement  of  his  property  to 
collect  the  surface  water  upon  his  own  lands 
into  a  drain  or  ditch.  Increased  In  quantity 
or  la  8  manner  different  from  the  natural 


flow  upon  the  lower  lands  of  another  to  the 
Injury  of  such  lands.  This  case  has  been 
followed  time  after  time,  and  was  reafllrmed 
as  late  as  the  year  1906.  See  Matteson  r. 
Tucker,  131  Iowa,  611,  107  N.  W.  600.  The 
following  cases  also  announce  the  same  doc- 
trine: Hull  V.  Harker,  130  Iowa,  190,  106 
N.  W.  629;  Wharton  v.  Stevens,  84  Iowa, 
107,  50  N.  W.  602,  15  L.  R.  A.  630,  35  Am. 
St  Rep.  298 ;  Brown  v.  Armstrong,  127  Iowa, 
175,  102  N.  W.  1047;  Scbofleld  v.  Cooper, 
126  Iowa,  834,  102  N.  W.  110;  Holmes  v. 
Calhoun  County,  97  Iowa,  360,  66  N.  W. 
145;  Cedar  Falls  v.  Hansen,  104  Iowa,  189, 
78  N.  W.  585,  65  Am.  St.  Rep.  439;  Collins 
V.  Keokuk,  91  Iowa,  293,  59  N.  W.  200.  Now 
the  evidence  shows,  without  substantial  dis- 
pute, that,  before  the  town  graded  and  gut- 
tered its  streets,  there  was  a  natural  water- 
shed running  from  near  the  southeast  cor- 
ner of  town  to  the  northwest  comer;  that 
the  water  east  and  south  of  this  watersiied 
ran  through  a  depression  or  "swale"  north 
and  west  to  near  the  northwest  corner  of 
the  town,  where  it  emptied  into  the  Big 
Sioux  river  a  short  distance  from  the  rail- 
way track  of  the  defendant  railway  compa- 
ny. It  also  appears  without  serious  dispute 
that,  when  the  defendant  graded  and  gut- 
tered its  streets.  It  cut  through  this  waters 
shed,  and  caused  water  which  fell  upon  the 
east  part  of  the  town  and  which  came  down 
from  the  hills  to  the  east,  which,  bad  it  fol- 
lowed its  natural  courae,  would  hare  goue 
north  and  west  Into  the  Big  Sioux  river, 
to  flow  east  until  It  struck  the  embankment 
of  the  railway  company  running  west  of 
south,  whence  it  ran  along  and  In  places 
over  the  embankment,  and  many  times  dur- 
ing the  past  flve  years  flooded  plaintiff's 
land,  to  bis  damage.  There  can  be  no  doubt 
whatever  that  defendant  caused  water  to 
run  from  the  east  along  what  are  known  as 
Main,  Iowa,  and  Sargent  streets,  westward 
and  down  onto  plaintiff's  land,  which  did 
not  originally  go  In  that  direction ;  but  which 
went  north  and  west  and  into  the  Big  Sioux 
river.  Defendant's  own  surveys,  blueprints, 
and  profiles  establish  these  facts.  Some 
of  the  water  went  through  a  culvert  in  the 
railway  embankment,  known  as  No.  611, 
down  onto  plaintlfTs  highland,  and  in  times 
of  high  water  it  ran  over  the  railway  em- 
bankment and  upon  piaintifTs  land.  There 
is  testimony  to  the  effect  that  this  Increased 
the  flow  of  water  and  that  this  increased 
flow  damaged  plaintiff's  lands  and  crops  for 
several  consecutive  seasons. 

Appellees  contend,  however,  that,  as  they 
were  not  negligent  In  Improving  the  streets, 
no  recovery  can  be  had.  As  the  action  is 
not  bottomed  upon  negligence,  this  conten- 
tion is  without  merit. 

They  also  insist  that  the  damage  was  due 
to  cloudbursts  and  extraordinary  floods.  No 
doubt  part  of  It  was,  but  there  was  testi- 
mony that  damages  wetre  suffered  from  ordl- 


Digitized  by  VjOOQ  l€ 


928 


122  NORTHWESTBBN  EEPOETEB. 


(Iowa 


nary  rainfall.  They  also  say  that  during  tbe 
past  five  years  the  seasons  have  been  unusu- 
ally wet;  but  this,  of  course,  constitutes  no 
defense.  Again,  it  Is  said  that  there  Is  no 
testimony  of  any  appreciable  Increase  In 
the  flow  of  water;  but  this  too  is  not  sus- 
tained by  the  record. 

Again,  it  Is  asserted  that  there  Is  no  show- 
ing as  to  how  much  of  plaintiff's  damage 
was  due  to  the  diversion  of  the  surface  wa- 
ter by  defendant,  and  how  much  to  the  over- 
flow of  a  ditch  on  tbe  south  side  of  tbe 
town.  It  Is  true,  perhaps,  that  the  testimony 
as  to  this  point  is  not  definite,  but,  as  It  ap- 
pears without  serious  conflict  that  the  gut- 
ters and  ditches  increased  tbe  flow  on  plain- 
tiff's land,  defendant  Is  responsible  for  Its 
share  of  that  Increase,  and  the  difllculty  In 
arriving  at  its  exact  proportion  of  tbe  dam- 
age Is  no  reason  for  defeating  plaintiff's 
action.  Defendant  Is  responsible  for  tbe 
damage  it  did,  no  matter  what  other  causes 
contributed  to  the  result 

Tbe  main  proposition  relied  upon  by  ap- 
pellee, however,  is  one  of  law,  and  that  is, 
as  applied  to  this  case,  tbe  ordinary  rules 
as  to  surface  water  do  not  obtain.  We  have 
seen  that  this  Is  a  misapprehension,  and  that 
tbe  case  Is  governed  by  these  general  rules. 
Tbe  cases  cited  by  appellee  from  this  state 
all  have  reference  to  the  rights  of  land  or 
lot  owners  within  the  limits  of  the  municipal 
corporation.  As  to  them,  we  have  said  in 
one  or  two  cases  tbe  ordinary  rules  as  to 
surface  water  do  not  apply.  It  will  be 
found,  returning  to  these  cases,  tbat  tbe  rea- 
sons given  for  these  holdings-  were  bottomed 
upon  the  fact  that  the  property  owner  had 
certain  duties  to  perform  because  of  the  lo- 
cation of  bis  property  within  the  city  or 
town  limits. 

As  appellees'  main  premise  is  fallacions, 
tbe  conclusion  Is  manifestly  unsound. 

We  shall  not  undertalce  on  tbe  appeal  to 
flx  the  amount  of  plaintiff's  damage.  The 
case  was  not  tried  with  any  great  degree 
of  care  on  this  issue,  for  tbe  evident  reason 
tbat  defendants  were  proceeding  on  the  the- 
ory of  nonliability.  For  this  reason,  we  shall 
remand  the  case  for  a  retrial  upon  the  is- 
sues as  to  the  amount  of  damages  to  which 
plaintiff  Is  entitled,  and  for  further  proceed- 
ings not  Inconsistent  with  this  op^on. 

Reversed  and  remanded. 


In  re  OVEJEIPECK'S  WIUj. 
(Supreme  Court  of  Iowa.    Oct.  28,  1909.) 
Appeal  from  District  Court,  Hardin  Coun- 
ty;  B..  M.  Wright,  Judge. 


On  rehearing.    Denied. 

For  former  opinion,  see  120  N.  W.  lOM. 

J.  D.  Scales,  for  appellant  J.  B.  Roberta 
and  Albrook  &  Lnndy,  (or  appellees. 

Supplemental  Opinion  on  Rehearing. 

PER  CURIAM.  In  a  petition  for  rehear- 
ing It  is  insisted  for  appellant  that  objection 
was  made  to  the  action  of  the  trial  court  in 
sustaining  a  question  asked  of  the  attend- 
ing physician  as  to  decedent's  capacity  to 
malce  the  will  In  question  which  went  fur- 
ther than  tbe  question  discussed  In  the  first 
paragraph  of  the  opinion  in  this  case,  and 
It  is  Insisted  that  for  the  guidance  of  the 
court  on  a  new  trial  the  propriety  of  such 
question  should  have  been  discussed.  Tlie 
question  thus  referred  to  went  to  the  border 
line,  at  least,  of  permissible  questions  of  this 
kind,  and  the  court  prefers  not  to  express 
now  an  opinion  as  to  its  propriety.  In  view 
of  the  fact  that  on  a  new  trial  tbe  contest- 
ants may  not  care  to  Insist  on  an  answer  to 
a  question  In  tbat  form,  in  view  of  our 
present  doubt  as  to  whether  it  should  be  per- 
mitted. 

As  to  the  other  points  submitted  In  the  ])<»• 
tltion  for  rehearing,  we  are  satisfied  with 
the  views  expressed  In  tbe  original  opinion, 
and  the  rehearing  is  denied. 


STATE  v.    FITZGERALD. 

(Supreme  Court  of  Iowa.     Oct.  23,  1909.) 

Appeal  from  District  Court,  Lee  County; 
Henry  Bank,  Jr.,  Judge. 

B.  F.  Jones  and  Thos.  Gatts,  for  appellant. 
H.  W.  Byera,  Atty.  Gen.,  for  the  State. 

PER  CURIAM.  The  defendant  herein  was 
indicted  for  the  crime  of  burglary.  There  was  a 
trial  to  a  jury,  and  a  verdict  and  jud^ent  of 
conviction.  The  case  has  been  submitted  on 
a  short  transcript  and  without  argument.  We 
have  examined  the  record  before  us,  and  find 
no  error  therein. 

The  judgment  most  therefore  be,  and  it  is,  af- 
firmed. 


STATE  V.  BAILEY. 

(Supreme  Court  of  Iowa.     Oct  25,  1909.) 

Appeal  from  District  Court,  Polk  (^nnty; 
Hugh  Brennan,  Judge. 

E.  C.  Mills,  for  appellant.  H.  W.  Byeis, 
Atty.   Gen.,  for  the   State. 

PER  CURIAM.  Defendant  was  convicted  of 
the  crime  of  burglary,  and  appealed.  Tbe  case 
comes  to  us  on  a  short  transcript,  showing  only 
the  indictments,  judgment,  notice  of  appeal, 
and  without  argument. 

We  find  no  error  in  tbe  record  thus  presented, 
and  the  judgment  is  therefore  affirmed. 


Digitized  by  LjOOQIC 


Iowa) 


ROWS  T.  CHICAGO,  M.  &  ST.  P.  B.  CO. 


929 


ROWB  ▼.  CHICAOO,  M.  &  ST.  P.  R.  CO. 

(Snpreme  Court  of  Iowa.     Oct.  28,  1909.) 

1.  RAII.BOADS  (5  278*)— Injury  to  Pebbon  on 

TBAOK— CONTRIBTJTOBT   NEOUQENCE. 

If  a  person  injured  b;  a  train  could  have 
seen  it  if  be  had  looked,  or  could  have  heard  it 
if  he  had  listened,  when  he  stepped  onto  the 
track  from  a  depot  platform,  he  was  negligent 
in  going  upon  the  track,  and  could  not  recover. 
[£:d.  Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  !  891 ;   Dec.  Dig.  i  278.»] 

2.  Tbial  a  355*)— Speciai.  Intkbbooatobies 
— St^rnciENCY  of  Answebs. 

In  an  action  for  injuries  to  a  person  on  a 
railroad  track,  the  jury  answered  "Yes"  to  an 
interrogatory  whether  plaintiff  could  have  seen 
the  train  if  he  bad  looked,  or  could  have  heard 
it  if  he  had  listened.  Held,  that,  as  an  affirma- 
tive finding  on  either  alternative  was  fatal  to 
plaintiff,  he  could  not  complain  that  the  answer 
might  have  been  intended  to  apply  to  only  one 
of  the  alternatives  and  not  to  both. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  {  847 ;   Dec.  Dig.  {  355.»] 
S.  Railboads  (i  282*)— Injubt  to  Pbbson  on 

Tback— Actio  N  8—1  nstbcctions. 

Id  an  action  for  injuries  to  a  person  on  a 
track,  where  plaintiff's  testimony  was  that  he 
walked  out  of  the  depot,  and  without  delay  walk- 
ed across  the  platform,  which  was  11  feet  and 
3  inches  wide,  and  onto  the  track,  only  a 
moment  of  time  being  involved,  an  interroga- 
tory and  instruction,  fixing  the  time  when  he 
was  required  to  look  and  listen  as  "at  the  time 
plaintiff  stepped  from  the  platform  onto  the 
track,"  were  proper. 

[Ed.  Note.— For  other  cases,  see  Railroads, 
Cent  Dig.  H  921,  922;   Dec.  Dig.  i  282.*] 

Appeal  from  District  Court,  Monona  Coun- 
ty ;  Wm.  Hutchinson,  Judge. 

This  is  an  action  for  personal  Injuries. 
There  was  a  verdict  and  judgment  for- de- 
fendant   Plaintiff  appeals.    Affirmed. 

H.  A.  Evana,  J.  P.  Shoup,  and  John  W.  An- 
derson, for  appellant  Shull,  Famsworth  & 
Sammis  and  S.  D.  Crary,  for  appellee. 

EVANS,  O.  3.  On  March  23,  1906,  the 
plaintiff  was  accompanying  a  shipment  of 
freight  on  one  of  defendant's  freight  trains, 
westward  bound.  At  the  village  of  White 
Lake,  In  South  Dakota,  this  train  was  due 
to  meet  an  eaat-bound  passenger  train,  and  it 
took  a  side  track  at  such  station  for  the 
purpose  of  giving  the  passenger  train  the 
right  of  way  over  the  main  track.  This  side 
track  lay  some  distance  to  the  south  of  the 
main  track.  While  waiting  for  the  passenger 
train,  the  plaintiff  left  the  freight  train  and 
went  to  a  lumber  office,  and  then  to  the  de- 
pot, which  was  situated  on  the  north  side  of 
the  main  line.  About  the  time  that  the  pas- 
senger train  was  due,  or  a  little  later,  in  day- 
light, the  plaintiff  left  the  depot  and  started 
toward  his  freight  car,  which  was  located  in 
a  southeasterly  direction  from  the  deiiot  door. 
The  platform  between  the  depot  door  and  the 
railroad  track  was  11  feet  and  3  Inches  wide, 
and  lay  east  and  west  Its  elevation  above 
the  rail  of  the  main  track  was  13  inches, 
and  3  feet  of  space  intervened  between  the 


north  raU  of  such  track  and  such  platform. 
The  plaintiff  stepped  from  the  platform  to 
the  main  track,  moving  southeasterly,  and 
had  walked  a  "conple  of  steps"  between  the 
rails  when  he  was  run  over  by  the  engine  of 
the  passenger  train.  The  train  was  running 
at  that  time,  according  to  plaintiff's  witness- 
es, 10  or  12  miles  an  hour.  The  plaintiff  was 
57  years  of  age,  and  was  without  defect  of 
sight  or  hearing.  He  knew  that  the  passen- 
ger train  was  expected  from  the  west,  and 
that  his  freight  train  was  waiting  for  it  He 
testified  that  after  he  came  out  of  the  depot, 
and  before  he  went  upon  the  track,  he  both 
looked  and  listened  for  it,  but  neither  saw 
nor  beard  it  The  only  obstruction  to  the 
view  which  is  claimed  was  the  state  of  the 
weather.  Plaintiff  testified:  "There  was 
quite  a  blizzard,  a  good  deal  of  snow  In  the 
air,  and  the  wind  was  blowing  very  strong, 
so  it  would  whip  a  person  around.  There  was 
considerable  snow,  more  along  the  track. 
*  *  •  There  was  nothing  but  the  weather 
that  was  obstructing  my  sight."  Other  wit- 
nesses for  plaintiff  emphasized  the  character 
of  the  storm.  Witnesses  for  the  defense  con- 
tended that  the  storm  was  not  great,  and 
that  it  did  not  obstruct  the  ready  view  of 
the  train. 

It  Is  Tindlspnted  that,  at  the  time  when 
plaintiff  stepped  from  the  platform  to  the 
track,  the  train  was  within  a  few  feet  of 
tilm,  and  was  In  plain  view,  unless  such  view 
was  obstructed  by  the  state  of  the  weather. 
This  was  the  only  circumstance  which  saved 
the  plaintiff  from  a  nonsuit  at  the  close  of 
the  evidence,  and  we  are  by  no  means  cer- 
tain that  the  defendant  was  not  entitled  to  a 
directed  verdict  The  trial  court,  however, 
submitted  the  case  to  the  jury.  In  response  to 
an  interrogatory  submitted  by  the  court  the 
jury  returned  a  special  finding  that  the 
plaintiff  "could  have  seen  the  train  if  he  had 
looked,  or  could  bare  heard  the  train  if  he 
had  listened."  We  think  the  effect  of  this 
special  finding  was  to  leave  the  plaintiff  with- 
out legal  excuse  for  going  upon  the  track  at 
the  time  and  place  that  he  did.  The  ques- 
tion of  his  ability  to  see  and  hear  the  train 
being  determined  against  him  by  the  jury, 
no  other  conclusion  was  possible  under  the 
evidence  but  that  he  was  negligent,  if  not 
reckless,  in  ^olng  upon  the  track. 

Appellant  complains  of  the  form  of  the  In- 
terrogatory submitted  by  the  court  The  in- 
terrogatory was  In  the  alternative  form  above 
indicated.  The  jury  answered,  "Yes."  It  is 
argued  that  such  answer  might  have  been  In- 
tended to  apply  to  only  one  of  the  alterna- 
tives, and  not  to  both,  and  that  some  mem- 
bers of  the  jury  might  have  intended  to  an- 
swer one  alternative,  and  the  other  inembers 
the  other.  The  form  of  the  Interrogatory  is 
not  perhaps  altogether  free  from  objection, 
but  it  does  not  furnish  the  plaintiff  a  fair 
ground  of  complaint.    The  jury  was  permit- 


•For  otber  cases  see  same  topic  and  section  NUMBER  la  Dec.  Jk  Am.  Digs.  1907  to  dat«,  A  Reporter  Indexes 
122  N.W.-59 


Digitized  by  VjOOQ  IC 


930 


122  NORTHWESTERN  REPORTER. 


(Iowa 


ted  to  answer  the  Interrogatory  In  its  own 
way.  It  was  not  directed  by  the  court  to  an- 
swer It  categorically  by  "les"  or  "No."  If  It 
had  desired  to  answer  any  part  of  the  in- 
terrogatory In  the  negative,  it  could  have 
done  so,  and  we  must  presume  that  it  would 
hare  done  so.  There  is  the  further  considera- 
tion that  an  afflrmative  finding  by  the  Jury 
on  either  alternative  was  fatal  to  the  plain- 
tiff. The  argument  that  some  Jurors  may 
have  favored  an  afiSrmatlve  answer  only  to 
the  first  part  of  the  question,  and  others  only 
to  the  last  part  thereof,  is  based  upon  the  as- 
sumption that  the  Jnrors  did  not  agree  upon  a 
verdict  The  record  shows  that  they  did 
agree  upon  their  verdict,  and  we  can  assume 
nothing  to  the  contrary. 

It  is  also  urged  that  the  interrogatory,  as 
well  as  instruction  No.  10,  fixed  the  time 
with  too  great  exactness  when  the  plaintiff 
was  required  to  look  or  listen.  The  language 
complained  of  Is  "at  the  time  plaintiff  stepped 
from  the  platform  upon  the  track."  It  Is 
argued  that  if  be  had  looked  and  listened  at 
any  time  while  he  was  upon  the  platform,  it 
was  snfflclent.  Plaintiff's  testimony  was  that 
he  walked  out  of  the  depot,  and  without  any 
delay  walked  from  the  depot  door  across  the 
platform  and  upon  the  track.  The  platform 
was  11  feet  and  3  Inches  wide.  Only  a  mo- 
ment of  time  was  involved.  The  language 
of  the  court  was  therefore  appropriate  to  the 
circumstances,  and  plaintiff  could  have  siff- 
fered  no  prejudice  therefrom. 

Other  questions  are  argued  which  relate 
principally  to  the  instructions  of  the  court  on 
the  subject  of  the  negligence  of  the  defend- 
ant Inasmuch  as  the  special  finding  of  the 
Jury  was  determinative  of  the  case,  we  can 
have  no  occasion  to  consider  these. 

The  Judgment  below  must  therefore  be  af- 
firmed. 


STATE  v.  McPURSLBX. 
(Supreme  Court  of  Iowa.     Oct  28,  1009.) 

Appeal  from  District  Cionrt,  Polk  (bounty; 
W.  H.  McHenry,  Judge. 
On  rehearing.    Denied. 
For  former  opinion,  see  121  N.  W.  1031. 

S.  Joe  Brown,  for  appellant  H.  W.  Byers, 
Atty.  Gen.,  for  the  State. 

Supplemental  Opinion  on  Rehearing. 

PER  CURIAM.  In  his  petition  for  a  re- 
hearing the  defendant  does  not  present  any 
new  points  or  call  our  attention  to  any  mat- 
ters claimed  to  have  been  overlooked  in  the 
original  consideration  of  the  case;  but  he 
earnestly  reargues  the  entire  case,  and  Insists 
that  the  evidence  was  wholly  insufficient  to 
warrant  the  verdict  of  guilty  which  was  re- 
turned against  him.  We  have  again  given 
the  record  a  most  careful  consideration,  and 


are  abidingly  convinced  that  we  should  not 
disturb  the  Judgment  and  verdict  The  evi- 
dence was  somewhat  fully  reviewed  in  the 
original  opinion,  and  it  Is  unnecessary  to 
again  discuss  It  here  The  circumstances  sur- 
rounding the  commission  of  the  crime,  how- 
ever, are  such  as  to  throw  grave  doubt  on 
the  nature  of  the  crime  committed,  and,  while 
we  are  constrained  to  overrule  the  petition 
for  a  rehearing,  we  do  feel  that  the  defend- 
ant's case  is  one  which  may  well  receive  the 
early  consideration  of  the  board  of  parole. 


STATE  V.  TJERNAOEIi. 
(Supreme  Court  of  Iowa.     Oct  28,  1909.) 

APPEAt  ANn  EiRBOB  (§  635*)  —  Tbanscbipt — 

Contents. 

Where  an  appeal  is  submitted  on  a  abort 
transcript  which  tails  to  show  that  an  appeal 
has  been  taken  and  no  appeal  has  been  filed  in 
the  clerk's  office,  the  case  will  be  dismissed. 

[Ed.  Note.— For  other  cases,  see  Appeal  and  Er- 
ror, Cent  Dig.  g|  2776-2782;  Dec.  Dig.  §  635. •] 

Appeal  from  District  Court,  Story  County; 
C.  O.  Lee,  Judge. 

I.  W.  Donglass,  for  appellant  H.  W.  By- 
ers, Atty.  Oen.,  for  the  State. 

PER  CURIAM.  This  case  was  submitted 
on  a  short  transcript  which  falls  to  show  that 
an  appeal  has  been  taken  herein.  Nor  has  an 
appeal  been  filed  In  the  clerk's  office.  We 
are  therefore  without  jurisdiction  to  consider 
the  case,  and  it  is  stricken  from  the  docket 


VERMONT  FARM  MACHINERY  CO.  ▼.  DB 

SOTA  CO-OPERATIVE   CREAMERY 

CO. 

(Supreme  Court  of  Iowa.    Oct  27,  1909.) 

1.  COBPOBATIONS    ({    388*)— DEFENSES— ULTBA 
ViRFS. 

The  .defense  of  ultra  vires  is  not  looked 
upon  with  favor  particularly  when  the  corpora- 
tion has  bad  the  benefit  of  the  whole  or  part 
of  the  contract,  the  rale  being  that  the  plea  is 
only  available  where  the  contract  ia  executory, 
the  corporation  being  estopped  to  plead  such  de- 
fense, where  it  has  had  the  consideration  for  the 
agreement 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent  Dig.  $§  1556-1558;   Dec.  Dig.  8  388.*] 

2.  CoRPOBATioNS  (8  388*)— Salb  Contbaot— 
Ultba  Vires. 

A  co-operative  creamery  corporation  em- 
powered to  manufacture  bntter  and  milk  prod- 
ucts for  its  stockholders  and  patrons  contract- 
ed to  purchase  five  cream  separators  at  a  gross 
price,  to  be  used  by  its  patrons  and  stockhold- 
ers in  separating  cream  from  their  milk  before 
delivering  it  to  the  creamery.  The  separators 
were  delivered  to  defendant,  and  one  of  them  sold 
CO  a  customer  for  f 64,  which  amount  was  remit- 
ted to  plaintiff,  the  corporation  refusing  to  pay 
the  balance.  Held,  that  the  contract  was  en- 
tire, and  the  corporation,  having  had  part  of  the 
benefits  thereof,  could  not  defend  an  action  for 
the  balance  due  on  the  ground  of  ultra  vires. 

[Ed.  Note. — For  other  cases,  see  Corporations, 
Cent  Dig.  §  1557 ;    Dec.  Dig.  i  388.*) 


*For  otber  caaea  lee  Hune  topic  and  section  NUMBER  In  Dec.  A  Am.  Digs.  1907  to  data,  *  Raportar  Indazts 


Digitized  by 


Google 


Iowa)       VERMONT  FARM  MACH.  OO.  ▼.  DBS  SOTA  CO-OPERATIVE  O.  00. 


931 


Appeal  from  District  Court,  Dallas  County; 
?•  H.  Applegate,  Judge. 

Action  to  recover  the  purchase  price  of 
certain  cream  separators  sold  by  plaintiff  to 
defendant.  Defendant  admitted  the  purchase 
of  the  separators,  but  pleaded  that  the  con- 
tract therefor  was  ultra  vires  and  void. 
The  case  was  tried  to  a  Jury,  and,  at  the 
conclusion  of  the  testimony,  the  trial  court 
on  motion  directed  a  verdict  for  defendant 
Plaintiff  appeals.    Reversed. 

Burton  Rnssell,  for  appellant  White  & 
Clark,  for  appellee. 

DEEMER,  3.  Defendant  Is  a  local  cor- 
poration; Its  articles  reciting  the  nature  of 
its  business  to  be  as  follows:  "Article  3. 
The  object  of  the  corix>ratlon  or  the  bnsl- 
ness  to  be  transacted  is  the  manufacture  of 
butter  and  milk  products  for  the  stockholders 
of  said  corporation  and  the  patrons  thereof 
npon  equal  terms  in  such  a  manner  as  wHI 
conduce  to  the  mutual  and  equal  advantage 
of  all  such  stockholders  and  patrons." 

Plaintiff,  through  Its  salesman,  made  a  con- 
tract with  defendant  through  its  secretary, 
one  H.  O.  Smith,  whereby  It  sold  to  defend- 
ant Ave  cream  separators  for  the  aggregate 
price  of  $390.  The  separators  were  deliver- 
ed to  defendant  pursuant  to  this  sale,  and 
some  of  them  used  by  it  down  to  the  time  of 
the  commencement  of  this  action.  One  it 
sold  to  a  customer,  and  for  this  It  remitted 
$64  to  plaintiff  on  account.  As  the  others 
were  not  paid  for,  plaintiff  brought  suit  to 
recover  the  balance  of  the  purchase  price. 
The  defense  made  was  that  the  contract  was 
ultra  vires  and  beyond  the  power  of  the  cor- 
poration. It  also  pleaded  that,  before  the 
commencement  of  the  suit  It  had  offered  to 
return  the  machines  to  plaintiff  and  had 
made  a  tender  thereof,  which  plaintiff  refus- 
ed to  accept.  Plaintiff  admitted  that  it  re- 
fused to  accept  the  tender,  and  pleaded  an 
estoppel  on  defendant's  part  due  to'  its  ac- 
ceptance and  receipt  of  the  goods.  The  tes- 
timony shows,  as  we  have  already  said,  that 
the  defendant  company  sold  one  of  the  ma- 
chines, and  that  It  used  another  in  the  prog- 
ress of  its  work.  True,  it  claims  to  have 
paid  for  the  one  It  used,  but  there  is  no  show- 
ing that  this  was  the  full  price  of  the  ma- 
chine or  that  payment  was  accepted  by  plain- 
tiff on  any  other  basis  than  as  being  made 
on  general  account 

Smith,  who  gave  the  order,  said  that  the 
separators  were  not  purchased  for  use  In 
the  creamery,  but  for  defendant's  patrons 
and  stockholders  for  use  in  separating  the 
cream  from  the  milk  which  they  were  to  de- 
liver to  the  creamery.  The  contract  for  the 
machines  fixed  a  gross  price  for  the  five.  It 
was  not  separable  in  character,  nor  was  it 
so  treated  by  the  parties  at  any  time.  This 
is  the  entire  record  upon  which  the  case  was 
decided,  and  constitutes  the  basis  for  the 
ruling  directing  the  verdict  for  defendant 


There  is  considerable  doubt  In  our  minds 
regarding  the  claim  that  the  contract  was 
and  is  ultra  vires.  Such  contracts  are  thoso 
which  do  not  in  any  manner  serve  the  ac- 
complishment of  the  purposes  for  which  the 
corporation  is  organized.  They  are  contracts, 
not  positively  forbidden,  but  impliedly  prohib- 
ited because  not  expressly  or  Impliedly  author- 
ized. Now  defendant  seems  to  be  organized 
as  a  mutual  or  co-operative  concern  for  the 
purpose  of  manufacturing  butter  and  milk 
products  for  the  stockholders  of  the  corpora- 
tion and  the  patrons  thereof  upon  equal  terms, 
etc.  We  are  not  at  all  certain  that  It  was 
not  within  the  implied  powers  of  the  officers 
of  the  corporation  to  secure  machines  which 
would  accomplish  the  first  step  in  butter 
making — the  separation  of  cream  from  the 
milk.  Home  Ins.  Co.  v.  Padcet  Co.,  32  Iowa, 
223,  7  Am.  Rep.  183.  The  defense  of  ultra 
vires  is  not  looked  upon  with  favor,  particu- 
larly when  the  corporation  had  had  the  bene- 
fit of  the  whole  or  a  part  of  the  contract 
Casualty  Co.  ▼.  Bank,  131  Iowa,  456,  108  N. 
W.  1046.  Our  rule  Is  that  the  plea  is  only 
available  where  the  contract  is  executory, 
and  that,  where  the  consideration  for  the 
agreement  has  been  received,  the  corpora- 
tion Is  estopped  to  allege  its  want  of  power 
to  contract  Field  v.  Building  ft  Loan  Ass'n, 
117  Iowa,  185,  90  N.  W.  717 ;  Schrimplln  v. 
Life  Ass'n,  123  Iowa,  109,  98  N.  W.  613; 
Lumber  Co.  v.  Telephone  Co.,  127  Iowa,  36S, 
857,  101  N.  W.  742,  69  L.  R.  A.  968,  109  Am. 
St  Rep.  387;  Casualty  Co.  ▼.  National  Bank, 
181  Iowa,  467,  108  N.  W.  1046;  St  John  ▼. 
Building  Ass'ns,  136  Iowa,  457, 113  N.  W.  863, 
15  U  R.  A.  (N.  S.)  503.  In  Fidelity  Insurance 
Co.  V.  German  Savings  Bank,  127  Iowa,  601. 
103  N.  W.  968,  we  said :  "A  corporation  can- 
not rely  npon  the  doctrine  of  ultra  vires  to 
relieve  Itself  from  the  consequences  of  a  con- 
tract made  by  It  which  Is  fully  executed  by 
the  other  party,  and  which  Is  not  expressly 
prohibited  or  contrary  to  public  policy.  The 
recoit  decisions  on  the  subject  almost  If  not 
quite,  unanimously  support  this  general  prop- 
osition. As  to  the  claim  that  this  acquisi- 
tion of  stock  was  outside  of  the  general  scope 
of  plaintiff's  business.  It  is  sufficient  to  say 
that  a  corporation  cannot  repudiate  an  ex- 
ecuted contract  of  which  It  has  received  the 
benefits  on  the  ground  that  such  contract  is 
ultra  vires;  that  Is,  not  within  the  scope  of 
the  business  which  It  is  authorized  to  trans- 
act" Again,  In  Canning  Co.  v.  Stanley,  133 
Iowa,  67, 110  N.  W.  171,  we  said:  "A  corpo- 
ration cannot  insist  on  its  own  want  of  au- 
thority to  enter  Into  a  contract  which  has 
l)een  fully  executed  and  carried  out  by  the 
other  party  thereto."  That  this  Is  the  rule 
which  generally  prevails  In  this  country,  see 
Security  Nat  Bank  v.  Power  Co.,  117  Wis. 
211,  94  N.  W.  74;  10  Cyc.  1163,  and  cases 
cited.  The  cases  cited  and  relied  upon  by 
appellee's  counsel  are  not  In  point  The  con- 
tract in  this  case  was  entire.    Defendant  has 


Digitized  by  VjOOQ  l€ 


932 


122  NORTHWESTERN  REPORTER. 


(Iowa 


undoubtedly  bad  part  of  the  benefits  there- 
of from  the  sale  of  some  of  the  property.  It 
could  not  tender  back  all  that  It  purchased, 
and  waa  In  no  position  to  say  that  it  would 
Abide  by  part  of  the  contract  and  rescind  the 
balance. 

The  trial  court  was  in  error  In  directing 
the  rerdlct,  and  the  Judgment  must  be,  and 
it  is,  reversed. 


SHAW  et  al.  ▼.  ROBERTS  et  al. 
(Supreme  Court  of  Iowa.     Oct  22,  1909.) 

1.  Vendor  and  PtTROHASER  (J  218*)— Pbopbb- 
TY  Subject  to  EbCECuxzoN. 

An  owner  of  incumbered  land  mortgaged 
the  same  to  secure  his  sureties  on  notes.  Pend- 
ing foreclosure  of  the  prior  mortgage,  he  con- 
veyed part  thereof  to  the  wives  of  two  of  the 
sureties.  Subsequently  all  the  land  was  sold 
under  the  foreclosure  judgment.  The  sureties 
purchased  part  of  the  land  from  a  purchaser  in 
the  sherifTs  deed,  taking  title  in  their  wives' 
names.  They  also  purchased  the  certificate  of 
sale  of  the  balance,  and,  at  the  expiration  of  the 
period  of  redemption,  their  wives  received  a 
deed.  The  owner  and  his  wife  gave  a  quit- 
claim deed  to  the  sureties  to  enable  them  to 
make  a  loan  to  complete  the  transactions.  The 
conveyances  by  the  owner  were  absolute,  and 
were  not  taken  as  security  by  any  of  the  sure- 
ties. Held,  that  owner  bad  no  claim  against 
the  land,  and  another  surety  recovering  judg- 
ment against  him  could  not  subject  any  part 
of  the  land  to  the  satisfaction  thereof. 

[KA.  Note.— For  other  cases,  see  Vendor  and 
Purchaser,  Dec.  Dig.  (  213.*] 

2.  EXBCUTioN  (I  51*)— Pbopebtt  Subject  to. 

Evidence  held  to  show  that  a  judgment  debt- 
or owned  an  interest  in  the  partnership  busi- 
ness of  breeding  cattle,  authorizing  a  levy  of  his 
interest  to  satisfy  the  judgment. 

[Ed.  Note.— For  other  cases,  see  Execution, 
Dec.  Dig.  {  51.*] 

3.  Execution  (§  156*)—I/evt— Costs. 

Where  an  execution  against  one  ot  two 
partners  individually  was  levied  on  a  herd  of 
cattle  belonging  to  the  firm,  and  the  herd  was 
sold  under  stipulation  after  it  had  been  kept  for 
some  months  by  the  firm  to  get  it  in  condition 
to  sell  to  advantage,  the  expense  of  keeping  the 
herd  was  properly  allowed  to  the  firm,  and  the 
execution  creditor  could  not  complain  of  an 
award  out  of  the  selling  price  greater  than  half 
such  price  less  half  the  expense  of  keeping  and 
lialf  the  expenses  of  the  sale. 

[Ed.  Note.— For  other  cases,  see  Execution, 
Dec  Dig.  f  156.*] 

Appeal  from  District  Court,  Adams  Coun- 
ty;   H.  K.  Evans,  Judge. 

Action  in  equity  to  subject  real  estate  and 
personal  property  to  the  payment  of  Judg- 
ments. There  was  a  decree  granting  the 
plaintiff  a  part  of  the  relief  asked.  Both  par- 
ties appeal.  The  defendants  will  be  desig- 
nated appellants.    Afl9rmed. 

Maxwell  &  Maxwell  and  Burg  Brown,  for 
appellants.    Davis  &  Wells,  for  appellees. 

SIIERWIN,  J.  The  plaintiff  W.  D.  Shaw 
is  the  owner  of  two  judgments  against  W. 
H.  Roberts,  one  rendered  In  September,  1893, 
and  the  other  in  October,  1898.    This  action 


was  commenced  in  April,  1906,  to  subject 
certain  real  estate,  the  title  to  which  stands 
in  the  name  of  Mary  F.  Roberts,  wife  of  W. 
H.  Roberts,  and  certain  personal  property 
consisting  of  horses  and  cattle,  to  the  pay- 
ment of  said  Judgments.  Mary  F.  Roberts 
and  George  E.  Roberts,  son  of  W.  H.  and  Mary 
F.,  claimed  to  be  the  absolute  owners  of  all 
of  the  personal  property.  W.  H.  Roberts  filed 
a  cross-petition,  alleging  that  certain  lands 
bad  been  deeded  by  him  to  the  wife  of  W.  D. 
Sliaw  for  the  purpose  of  securing  the  pay- 
ments of  certain  debts  of  W.  H.  Roberts,  and 
asking  an  accounting  from  said  Shaw.  There 
was  a  trial  and  a  decree  finding  that  Mary 
F.  Roberts  was  the  owner  of  the  real  estate 
standing  in  her  name  and  that  a  part  of  the 
personal  property,  to  wit,  certain  shorthorn 
cattle,  were  the  property  of  W.  H.  Roberts 
and  George  E.  Roberts,  and  subjecting  the 
interest  therein  of  W.  H.  Roberts  to  the 
plaintiff's  claims.  On  the  1st  day  of  Feb- 
ruary, 1888,  W.  H.  Roberts  held  the  title  to 
870  acres  of  land  described  as  In  sections  5 
and  8.  He  was  at  that  time  heavily  in  debt 
and  hopelessly  Insolvent.  "The  plaintiff  W. 
D.  Shaw  and  John  M.  and  James  Roberts, 
brothers  of  W.  H.  Roberts,  had  theretofore 
become  sureties  for  him  for  a  large  amount, 
and  on  said  1st  day  of  February,  1888,  he 
executed  to  Shaw  and  his  said  brothers  a 
mortgage  on  all  of  the  land  in  sections  5  and 
8  to  secure  the  payment  of  certain  Turner 
notes  upon  which  the  said  mortgagees  were 
sureties.  All  of  this  land  was  at  that  time 
covered  by  prior  mortgages,  and  soon  after 
the  execution  of  the  mortgage  of  February 
1st  foreclosure  proceedings  were  commenced 
on  the  prior  mortgages  and  prosecuted  to 
judgments.  Pending  the  foreclosure  proceed- 
ings, however,  W.  H.  Roberts  and  his  wife 
on  May  19,  1888,  conveyed  the  east  half  of 
section  5  to  Frances  E.  Roberts  and  the  west 
half  of  the  same  section  to  Ann  Roberts,  who 
were  the  wives  of  J.  M.  and  James  Roberts. 
These  conveyances  were  absolute  warranty 
deeds.  After  Judgments  were  obtained  in 
the  foreclosure  proceedings,  executions  were 
issued  and  all  of  the  land  was  sold  to  satis- 
fy the  same,  and  on  the  5th  of  September, 
1889,  D.  S.  Sigler,  purchaser  under  one  of 
said  sales,  obtained  a  sheriffs  deed  convey- 
ing to  him  all  of  the  land  In  section  6.  The 
prior  mortgage  on  the  land  in  section  8  was 
foreclosed,  and  a  sale  made  under  execution ; 
the  period  of  redemption  expiring  on  De- 
cember 18,  1889.  On  September  19,  1889, 
Shaw  and  J.  M.  and  James  Roberts  purchas- 
ed all  of  the  land  in  section  5  from  D.  S. 
Sigler,  who'had  obtained  title  thereto  through 
the  sheriflCs  sale,  and  paid  therefor  a  large 
amount  of  money,  taking  title  In  their  wives' 
names.  At  the  same  time  they  purchased  the 
certificate  of  sale  of  the  land  in  section  8, 
and,  at  the  expiration  of  the  period  of  re- 
demption, their  wives  received  a  deed  to  said 


•For  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  *  Reportar  Indexai 


Digitized  by  VjOOQ  l€ 


Iowa) 


SHAW  T.  ROBERTS. 


933 


land  from  the  master  ot  chancery  of  the 
court  in '  which  the  foreclosure  was  had. 
These  two  transactions  required  about  $13,- 
000,  and,  to  secure  this  amount,  It  was  nec- 
essary to  raise  $10,000  by  first  mortgage  on 
all  of  the  land  Involved.  And,  in  order  to 
enable  the  grantees  to  obtain  this  loan,  W.  H. 
Roberts  and  wife  executed  a  quitclaim  deed 
to  the  land  In  section  8. 

The  title  stood  in  the  names  of  the  three 
wives  nntll  August,  1892.  At  that  tline  Shaw, 
J.  M.,  and  James  Roberts  were  Indebted  to 
Turner  about  $6,000  on  a  Judgment,  and  he 
was  threatening  to  make  the  same  out  of  oth- 
er land  belonging  to  Shaw  because  J.  M.  and 
James  Roberts  were  unable  to  assist  In  the 
payment  thereof.  With  such  conditions  con- 
fronting them,  J.  M.  and  James  Roberts  and 
their  wives  executed  a  warranty  deed  to  all  of 
said  land  to  Sarah  B.  Shaw,  the  deed  reciting 
that  in  consideration  thereof  Mrs.  Shaw  was 
to  pay  the  grantors  $1,000,  and,  In  addition 
thereto,  assume  the  $10,000  mortgage  thereon. 
It  was  also  agreed  between  the  parties  that 
Mrs.  Shaw  as  a  part  of  the  consideration  for 
such  conveyance  should  pay  the  Turner  judg- 
ment, which  was  subsequently  done.  The  $1,- 
500  was  paid  to  the  grantors  as  agreed,  and 
these  payments,  with  the  mortgages  assumed, 
made  the  land  cost  Mrs.  Shaw  about  $19,- 
000,  which  was  all  or  more  than  it  was  then 
worth.  The  Shaws  sold  section  5  and  15 
acres  In  section  8  in  1894,  and  they  and  their 
grantees  have  been  in  the  exclusive  posses- 
sion thereof  since  1892.  In  1896  Shaw  was 
compelled  to  pay  a  note  that  he  had  signed 
with  W.  H.  Roberts  in  1886,  and  for  this 
amount  he  obtained  one  of  the  Judgments  he 
seeks  to  collect  In  this  action.  Shaw  and  one 
Pringey  were  also  compelled  to  pay  a  note 
for  said  Roberts,  and  the  amount  so  paid  is 
represented  in  the  other  Judgment  involved 
here.  It  is  not  claimed  that  either  of  these 
payments  were  in  any  way  involved  in  the 
land  transactions,  or  in  any  way  secured  by 
the  conveyances  thereof. 

A  mere  recital  of  the  foregoing  facts  would 
seem  8u£Bcient  to  demonstrate  that  W.  H. 
Roberts  has  no  valid  claim  of  any  kind 
against  the  land  in  sections  5  and  8.  In  the 
first  place,  the  evidence  is  wholly  insuflSdent 
to  show  the  relationship  of  mortgagor  and 
mortgagee.  Mrs.  Shaw  obtained  title  from 
the  wives  of  J.  M.  and  James  Roberts  wholly 
Independent  of  W.  H.  Roberts  and  without 
any  kind  of  an  agreement  with  him,  and  the 
wives  of  J.  M.  and  James  Roberts  derived 
their  real  title  through  purchase  from  Slgler 
and  at  an  execution  sale.  The  entire  record 
shows  quite  conclusively  that  the  convey- 
ances were  absolute,  and  were  not  taken  as 
security  by  any  of  the  grantees.  BIgler  v. 
Jack,  114  Iowa,  6G7,  87  N.  W.  700;  Krebs 
▼.  Lauser,  133  Iowa,  241,  110  N.  W.  443.  Pri- 
or to  his  failure  in  1888,  W.  H.  Roberts  was 
a  breeder  of  shorthorn  cattle.  After  the 
failure  he  had  left  one  cow  and  one  calf,  and 
the  herd  that  was  levied  upon  in  this  action 


originated  largely  from  them.  The  appel- 
lants claim  that  W.  H.  Roberts  turned  over 
this  cow  and  calf  with  some  other  exempt 
property  to  his  wife  and  sons,  and  that  the 
wife  and  George  B.  Roberts  were  the  owners 
thereof  at  the  time  the  levy  was  made.  That 
George  E.  Roberts  owned  a  one-half  interest 
therein  which  he  bought  in  1002  is  unques- 
tioned, so  that  the  only  dispute  is  over  the 
ownership  of  the  remaining  interest 

The  testimony  of  the  family  is  to  the  ef- 
fect that  W.  H.  Roberts  did  not  own  an  in- 
terest therein,  while  the  conduct  of  the 
father,  mother,  and  son  during  the  years  fol- 
lowing the  failure  until  the  time  of  the  levy 
In  this  action  points  strongly  In  the  other  di- 
rection. The  family  began  accumulating  the 
present  herd  early  in  the  90's,  and  from  that 
time  until  1906  the  record  shows  that  there 
were  registered  in  the  herd  book  of  the  Amer- 
ican Shorthorn  Association  121  animals  as 
being  either  owned  or  bred,  or  both,  by  W.  H. 
Roberts,  or  by  W.  H.  Roberts  and  6.  E.  Rob- 
erts. Prior  to  1902,  when  George  E.  acquired 
bis  Interest  In  the  herd,  the  registrations 
were  made  by  W.  H.  Roberts  with  the 
knowledge  and  consent  of  his  wife,  and,  aft- 
er George  purchased  an  interest,  they  were 
generally  made  by  him ;  he,  as  did  his  fath- 
er in  some  instances,  certifying  that  the 
animals  were  owned  by  W.  H.  and  O.  B. 
Roberts,  and  the  son  testified  that  the  cer- 
tificates so  made  by  him  were  true.  Sales 
of  their  stock  were  also  advertised  in  the 
names  of  W.  H.  and  G.  E.  Roberts,  and  In 
one  instance  at  least  W.  H.  Roberts  pur- 
chased additions  to  the  herd  at  a  public 
sale  of  shorthorns,  giving  a  note  therefor 
signed  by  himself,  bis  wife,  and  son.  In 
fact,  W.  H.  Roberts  tesUfled  on  the  trial 
that  he  assumed  and  had  charge  ot  the 
shorthorn  business,  and  carried  it  on  in  his 
own  name  for  many  years  after  the  failure. 
That  It  was  understood  by  bis  wife  and 
family  that  be  owned  an  interest  In  the 
business  can  hardly  be  doubted  from  the 
record  before  us.  We  are  of  the  opinion, 
therefore,  that  t^e  trial  court  correctly  so 
found. 

A  levy  was  made  on  the  stock  as  partner- 
ship property  in  April,  1906,  and  It  was  sold 
under  stipulation  in  December  of  the  same 
year.  It  sold  for  either  $2,977.50  or  $2,997.50, 
and  the  trial  court  found  the  plaintiff  en- 
titled to  but  $1,199  of  said  sum.  The  plain- 
tiff appealed  from  snch  finding,  and  nqw 
claims  that  he  is  entitled  to  $1,488.75,  or  one- 
half  of  the  total  amount  for  which  the  herd 
sold.  The  herd  was  appraised  and  a  bond 
given  soon  after  the  levy,  and  during  the 
time  Intervening  before  the  sale  in  Dpcem- 
her  it  was  kept  and  cared  for  at  the  expense 
of  George  E.  Roberts.  The  expense  of  the 
sale  and  keeping  amounted  to  about  $900,  as 
shown  by  the  undisputed  evidence.  The 
herd  was  not  in  condition  to  sell  to  advantage 
before  it  was  in  fact  sold,  and  hence  the  ex- 
pense ot  fitting  it  tor  sale  should  be  allowed 


Digitized  by  VjOOQ  l€ 


934 


122  NORTHWESTERN  REPOBTEB. 


(Iowa 


the  partnership.  One-half  of  this  amount 
and  one-half  of  the  expense  of  the  sale 
would  reduce  the  amount  to  which  plaintiff 
Is  entitled  to  less  than  was  awarded  him. 
We  think  he  has  no  reason  to  complain  of 
the  Judgment 

The  decree  Is  right  in  all  respects,  and  it  Is 
affirmed. 

Affirmed. 


MAHAFFY  ▼.  FARIS  et  al. 
(Snpreme  Court  of  Iowa.     Oct  22,  1909.) 

1.  EviDKNCB  (S  159*)— Best  and  Secondabt— 
Makino  of  Instbumert. 

Parol  eridence  is  admissible  to  show  the 
making  of  a  written  contract  which  is  lost  or 
destroyed. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  §f  471,  474 ;   Dec.  Dig.  g  159.*] 

2.  MoBTGAOES  (§  37*)— Chabacteb  of  Instbu- 
HEKT— Pabol  Evidence. 

Parol  evidence  is  admissible  to  show  a  deed 
absolute  in  form  was  intended  to  be  a  mortgage. 

[Ed.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  !f  97-107 ;   Dec  Dig.  |  37.*] 
8.  Mobtoaoes  (g  597*)— Redeuption— Laohks 

AS  Defense— WHO  Mat  Pixad. 

The  purchaser  of  land  from  one  holding  the 
absolute  title  as  security,  who  has  paid  no  part 
of  the  incumbrances  thereon  which  be  assumed 
as  consideration  for  his  deed,  but  has  made  ex- 
pensive improvements,  may  plead  laches  in  an 
action  to  redeem  from  the  deed  under  which  his 
grantor  held. 

[Ed.  Note.— For  «ther  cases,  see  Mortgages, 
Deo.  Dig.  t  697.*] 

4.  MoBTaAOES  (g  143*)— REI.ATION  OF  Fabths 

— Repudiation  of  Relation. 
'  Where  a  grantee  of  land  as  security  is  given 
possession,  but  does  not  repudiate  the  relation 
of  the  parties  as  mortgagor  and  mortgagee  until 
a  conveyance  by  the  grantee  to  a  third  person, 
adverse  possession  does  not  exist  until  such  con- 
veyance. 

[Ed.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  fg  281-284;  Dec.  Dig.  g  14&*] 
6.  Mobtoaoes  (g   597*)— Redemption- Lach- 
es. 

Where  the  owner  of  land  allowed  the  gran- 
tee thereof  as  security  to  remain  in  possession 
for  19  years,  making  improvements,  and  until  it 
had  increased  in  value  from  S2,600,  a  trifle  more 
than  his  indebtedness,  to  $8,000,  without  claim- 
ing any  interest  therein  or  an  accounting  for 
rents,  cannot  maintain  action  to  redeem. 

lEd.  Note.— For  other  cases,  see  Mortgages, 
Dec.  Dig.  g  597.*] 
6.  Mobtoaoes  (g  599*)— Tnra  to  Redeem. 

Where  no  time  is  fixed  for  redeeming  land 
conveyed  as  security,  and  possession  given,  re- 
demption should  be  made  within  a  reasonable 
time  to  be  determined  as  a  question  of  fact  from 
all  the  circumstances,  but  within  10  years,  the 
statutory  limitation,  from  the  time  of  the  con- 
veyance. 

[Ed.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  gg  173^-1741;    Dec.   Dig.  g  509.*] 

Appeal  from  District  Court,  Des  Moines 
County;  James  D.  Smythe,  Judge. 

Suit  in  equity  to  secure  a  reconveyance  of 
80  acres  of  land  In  Des  Moines  county,  Iowa, 
upon  payment  of  the  indebtedness  which  it 
is  claimed  plaintiff  was  owing,  for  an  ac- 


counting, and,  if  a  reconv^ance  could  not 
be  made,  then  for  a  judgment  for  the  value 
of  the  property.  The  trial  court  dismissed 
the  petition,  and  plaintiff  appeals.    Affirmed. 

Seerley  &  Clark  and  La  Monte  Cowles,  for 
appellant  Poor  &  Poor  and  Blake  &  Wil- 
son, for  appellees. 

DEEMEB,  J.  On  December  27, 1887,  plain- 
tiff conveyed  the  premises  In  controversy, 
consisting  of  80  acres  of  land,  to  one  Nancy 
Farls  by  ordinary  deed  of  bargain  and  sale, 
without  covenants  of  warranty.  This  deed 
was  recorded  March  17,  1888.  Before  the 
commencement  of  this  salt,  Nancy  Farls,  the 
grantee,  died,  and  this  action  was  commenced 
against  Joshua,  her  husband,  William  I. 
Farhs,  to  whom  Nancy  had  conveyed  the  land 
before  her  death,  and  Mrs.  William  I.  Farls, 
his  wife.  It  is  claimed  that  plaintiff  deeded 
the  land  to  Mrs.  Farls  pursuant  to  a  written 
agreement  with  her  husband,  one  of  the  de- 
fendants, whereby  the  plaintiff  was  to  deed 
his  interest  In  the  property  by  quitclaim  deed 
to  said  Joshua,  who  was  then  to  attend  a 
master's  sale  of  the  property,  which  was 
pending,  bid  in  the  property  and  hold  the 
title  until  such  time  as  plaintiff  was  able 
to  redeem  by  paying  the  amounts  advanced 
by  Joshua.  Nancy  Farls  was  plaintiff's 
sister,  and  it  la  claimed  that  the  deed  was 
taken  In  her  name,  instead  of  that  of  her 
husband.  It  is  also  claimed  that  an  agree- 
ment to  this  effect  was  made  In  writing 
which  has  since  been  lost,  destroyed,  or  sur- 
reptitiously taken  from  plaintiff,  so  that  no 
copy  thereof  can  be  had.  It  was  further  alleg- 
ed that  Joshua  was  to  bid  in  thQ  land  at  mas- 
ter's sale  in  his  own  name  or  that  of  his 
wife,  Nancy,  as  trustee.  It  is  further  charg- 
ed: That  the  land  was  conveyed  to  Nancy 
Farls,  pursuant  to  this  agreement;  that  she 
and  her  husband  went  into  the  possession 
thereof  and  have  since  received  the  rents 
and  profits;  and  that  Joshua  bid  in  the  prop- 
erty at  master's  sale  as  agreed.  Plaintiff  al- 
leged that  he  was  able  and  willing  to  pay  all 
amounts  advanced  by  either  Joshua  or  his 
wife,  and  he  asked  for  an  accounting,  a  re- 
conveyance of  the  property,  and  other  equi- 
table relief.  Defendants  admitted  the  deed 
to  Nancy  Farls,  that  they  or  some  of  them 
had  held  possession  of  the  land  since  some 
time  in  the  year  1887,  that  in  January  of 
the  year  1897  Nancy  Farls  agreed  to  convey 
the  land  to  defendant  William  I.  Farls,  her 
son,  as  his  share  of  the  estate  belonging  to 
his  parents,  that  William  immediately  went 
into  possession  under  this  agreement  and 
that  in  consideration  thereof  a  deed  was 
made  to  him  (William)  on  December  10, 1903. 
Defendants  also  pleaded  adverse  possession 
of  the  land  since  the  year  1888.  They  also 
averred  that  plaintiff's  action  was  barred  by 
the  statute  of  limitations,  and  further  plead- 
ed that  they  expended  large  sums  of  money 


>iror  otber  cues  ■••  same  topic  and  lectloa  MUUbUB  is  UM.  *  Am.  Digs.  U07  to  data,  *  Baportar  Indaxaa 


Digitized  by 


L-oogle 


Iowa) 


MAHAFFT  t.  FABI& 


936 


upon  tbe  land  without  knowledge  or  notice 
of  plalntUTs  claim  and  In  tbe  belief  that 
Mancy  was  the  nnQualified  owner  thereof 
at  all  times  until  she  conreyed  to  WilUam, 
and  that  plaintiff  Is  now  estopped  from  as- 
serting any  rights  in  and  to  the  land.  The 
trial  conrt  denied  plaintiff  any  relief,  and 
this  appeal  presents  several  questions  for 
our  consideration. 

In  the  first  place  It  Is  said  that  plaintiff's 
dalm  amounts  to  a  trust  which  cannot  be 
established  by  parol,  and  that.  If  there  ever 
was  a  written  agreement,  which  Is  denied, 
It  was  not  binding  upon  the  deceased  gran- 
tee, Nancy  Farls.  Other  points  made  for 
defendants  are:  (a)  That  they  held  title 
by  adverse  possession;  0>)  that  plaindfTs 
action  is  barred  by  the  statute  of  limita- 
tions; and  (c)  that  plaintiff  is  estopped,  by 
bis  laches  and  by  his  conduct,  from  assert- 
ing any  title  to  the  land.  Plaintiff  does  not 
bring  this  action  on  the  theory  that  he  had 
a  contract  for  the  repurchase  of  tbe  land 
from  Joshua  and  his  wife,  and  that  he  has 
paid  or  offered  to  pay  the  purchase  price. 
His  claim  is  that  the  deed  to  Nancy  Faris 
was  in  fact  a  mortgage,  that  she  paid  nothing 
for  the  property,  and  that  the  deed  was  made 
as  security  for  obligations  entered  Into  by 
ber  and  her  husband  In  order  to  obtain  the 
money  wherewith  they  should  secure  title 
to  the  land  which  was  then  owned  by  plain- 
tiff—although  title  stood  in  the  name  of  an- 
other and  the  land  was  so  heavily  incumber- 
ed that  plaintiff  could  not  redeem  it 

We  are  satisfied  from  a  perusal  of  tbe  rec- 
ord that  the  land  was  conveyed  to  Mrs. 
Faris  without  any  consideration  passing  from 
her  to  plaintiff,  that  whatever  she  or  her 
husband  advanced  to  clear  the  title  was  se- 
cured by  a  mortgage  upon  the  land,  and  that, 
aside  from  what  they  expended  in  placing 
improvements  upon  the  land,  they  never 
have  made  any  Investment  therein.  We  are 
well  satisfied  that,  as  a  part  of  the  transac- 
tion whereby  Nancy  Faris  obtained  title  to 
the  land,  a  contract  of  defeasance  or  to  re- 
convey  upon  payment  of  what  the  Farlses 
were  compelled  to  advance  upon  the  land  was 
entered  into  by  and  between  plaintiff  and 
Joshua  Faris,  and  that  in  virtue  thereof,  and 
by  reason  of  its  execution,  the  deed  was 
made  to  Nancy  Faris.  The  making  of  the 
contract  is  denied  by  defendant  Josbna  Fa- 
ris; but  tbe  clear  preponderance  of  the  tes- 
timony is  with  the  plaintiff  on  this  proposi- 
tion. Parol  testimony  was  admissible  to 
show  not  only  the  making  of  the  written 
contract  which  is  lost  or  destroyed,  but  also 
to  8bow*that  the  deed  to  Mrs.  Faris.  while 
absolute  in  form,  was  intended  to  be  a  mort- 
gage. This  is  hornbook  law,  needing  no 
authorities  in  its  support  The  deed  was 
made  to  Mrs.  Faris  on  December  27,  1887, 
and  she  and  her  husband  went  into  the 
possession  of  the  land  In  March  of  the  year 
1888.  They  or  their  children,  or  those  claim- 
ing under  them,  have  been  in  the  absolute 


possession  of  tbe  land  ever  since.  They  have 
either  farmed  and  cultivated  it,  receiving  the 
income  therefrom,  or  have  rented  it,  receiv- 
ing the  rents  and  profits  during  all  this  time. 
On  December  10,  1903,  the  farm  was  convey- 
ed by  Nancy  Faris  and  husband  to  their  son, 
defendant  William  L  Faris.  This  deed  was 
not  filed  for  record  until  June  6,  1906,  which 
was  shortly  before  the  death  of  Mrs.  Faris. 
The  expressed  consideration  therefor  being 
the  payment,  by  William,  of  a  mortgage  in 
the  sum  of  $2,400  upon  the  real  estate,  which 
mortgage  represents,  according  to  the  testi- 
mony, all  the  money  that  either  Mrs.  Faris 
or  her  husband  put  Into  the  land.  William 
went  Into  possession  at  about  the  time  the 
deed  was  executed,  and  has  been  in  either 
the  actual  or  constructive  possession  ever 
since.  It  is  not  shown  that  William  bad  any 
notice  of  the  true  character  of  the  deed  from 
plaintiff  to  Mrs.  Faris.  The  deed  to  him  was 
made  as  his  share  In  his  parents'  estate,  and 
after  taking  the  same  he  made  rather  ex- 
tensive and  expensive  improvements  upon 
the  property.  At  no  time  did  plaintiff  make 
any  claim  to  him  that  he  (plaintiff)  had  any 
interest  in  the  land.  It  may  be  that  as  the 
land  was  an  advancement  made  by  Mr.  and 
Mrs.  Faris  to  their  son  William,  and  as  he 
has  paid  no  part  of  the  mortgage  Incum- 
brance which  he  assumed  as  a  consideration 
for  the  deed,  he  is  not  a  good-faith  pur- 
chaser for  value,  and  that  under  such  claim 
he  has  no  rights  other  than  his  mother  would 
have  had  had  she  survived  and  been  made 
a  defendant  However,  in  virtue  of  the  mon- ' 
ey  expended  by  William  Faris,  in  the  way  of 
making  Improvements  upon  the  land  and  in 
assuming  the  payment  of  the  mortgage 
against  It,  he  stands  in  a  position  to  avaU 
himself  of  plaintiff's  long  delay  in  bringing 
this  action,  which,  as  we  have  seen,  is  not 
for  specific  performance,  but  to  redeem  the 
land. 

Finding,  as  we  have,  that  the  conveyance 
originally  made  to  Mrs.  Farls  was  a  mort- 
gage, plaintiff  is  entitled  to  an  accounting 
and  to  redeem,  unless  his  action  be  barred 
by  the  statute  of  limitations,  or  it  be  found 
that  by  reason  of  his  long  delay  in  bringing 
suit,  and  his  conduct  generally,  he  has  es- 
topped himself  from  asking  such  relief.  We 
do  not  think  that  defendants  have  shown  title 
to  the  land  by  adverse  possession.  There 
was  no  repudiation  of  the  trust  or  of  the 
mortgage  character  of  the  deed  until  the 
making  of  the  deed  to  William,  and  10  years 
had  not  run  from  that  date  when  this  action 
was  commenced;  but  we  are  constrained  to 
bold  that  under  the  peculiar  facts  shown  by 
this  record  plaintiff's  action  is  barred,  both 
by  statute  and  by  estoppel.  When  plaintiff 
conveyed  the  land  it  was  not  worth  to  exceed 
$2,600.  The  indebtedness  which  Mr.  and  Mrs. 
Faris  then  obligated  themselves  to  pay  was 
nearly,  if  not  quite,  this  amount  They  and 
their  grantees  have  expended  large  sums  in 
making  Improvements  upon  the  land.   During 


Digitized  by  VjOOQ  l€ 


936 


122  NORTHWESTERN  REPORTER. 


(lowm 


the  nearly  20  years  since  the  conveyance  was 
made,  the  land  has  increased  In  value  until  it 
Is  now  worth  from  $8,000  to  $8,500.  For  over 
19  years  plaintiff  made  no  claim  of  any  kind 
to  the  land.  He  asked  no  accounting  until  be 
brought  this  suit  He  did  not  commence  this 
action  until  after  the  death  of  Mrs.  Farls. 
Had  the  land  decreased,  instead  of  Increased, 
In  value,  and  the  Farises  had  brought  suit  to 
compel  plaintiff  to  repay  the  money  they  had 
expended,  plaintiff  could  not  have  been  made 
to  pay.  The  statute  of  limitations  would 
clearly  have  barred  their  action  against  the 
plaintiff.  Under  this  state  of  facts,  plaintiff 
should  not  be  allowed  to  assert  his  claim. 
Thomas  v.  Brewer,  65  Iowa,  227,  7  N.  W.  571; 
Adams  ▼.  Holden,  111  Iowa,  54,  82  N.  W.  46& 

Whilst  we  are  satisfied  that  there  was  a 
written  contract  made,  as  claimed  by  plain- 
tiff, there  Is  nothing  to  show  when,  by  the 
terms  of  that  contract,  plaintiff  was  to  re- 
deem the  land.  Surely  this  right  would  not 
exist  forever.  As  no  time  was  fixed,  the  law 
says  it  should  be  a  reasonable  time,  and  this 
reasonable  time  is  ordinarily  a  question  of 
fact  to  be  determined  from  all  the  circum- 
stances. In  no  event  should  it.  In  our  opin- 
ion, run  beyond  the  period  of  the  statute  of 
limitations;  that  is  to  say,  in  the  absence  of 
a  provision  in  the  contract  fixing  the  time, 
the  action  to  redeem  should  be  commenced 
within  10  years  from  the  date  of  the  making 
of  the  contract  Nash  v.  Land  Co.,  15  N.  D. 
686,  108  N.  W.  792;  Thomas  v.  Brewer,  su- 
pra; Smith  y.  Foster,  44  Iowa,  442;  Albee  v. 
Curtis,  77  Iowa,  644,  42  N.  W.  508;  Crawford 
V.  Taylor,  42  Iowa,  260.  The  right  to  fore- 
close and  the  right  to  redeem  must  of  neces- 
sity be  reciprocal,  and,  where  the  one  is  bar- 
red, the  other  must  also  be.  There  may,  of 
course,  be  exceptions  to  this  rule;  but  they 
are  not  present  in  the  Instant  case.  Plain- 
tiff's action  here  is  to  redeem,  and  nothing 
else.  If  this  be  not  the  situation,  he  Is  out 
of  court,  for  he  has  not  shown  himself  enti- 
tled to  the  specific  performance  of  a  contract 
to  reconvey.  The  receipt  of  the  rents  and 
profits  of  the  land  did  not  constitute  such 
payments  as  to  toll  the  statute.  Thomas  v. 
Brewer,  supra. 

Again,  we  are  satisfied  that  plaintiff,  by 
reason  of  his  delay  in  bringing  his  action.  Is 
estopped  from  having  the  relief  asked.  A 
few  quotations  from  some  of  the  authorities 
will  Indicate  our  views  upon  this  proposition. 
In  Allen  v.  Allen,  47  Mich.  79,  10  N.  W.  115, 
the  Supreme  Court  of  Michigan  said:  "This 
bill  was  filed  more  than  11  years  after  the 
conveyance  of  which  complainants  seek  to 
obtain  the  benefit  There  has  been  no  se- 
crecy in  defendant's  dealings  and  no  appar- 
ent attempt  to  deceive.  The  interest  convey- 
ed was  of  small  value  at  the  time.  It  has 
become  of  considerable  value  since,  partly 
through  the  rapid  growth  of  the  city,  and 
pnrtly  through  the  good  management  of  de- 


fendant Complainants  made  no  claim  to  It 
until  the  advance  was  realized,  and,  If  they 
ever  intended  to  do  so,  occupied  the  position 
of  parties  waiting  to  diarge  a  fraud  when 
they  could  do  so  with  certain  profit;  but  in 
contemplation  of  equity  they  waited  altogeth- 
er too  long.  Their  laches  was  gross,  and  it 
stands  wholly  unexcused.  •  •  •  The  de- 
cree must  be  reversed,  and  the  bill  dismiss- 
ed." In  Harlow  v.  Iron  Co.,  41  Mich.  583,  2 
N.  W.  913,  Judge  Cooley,  speaking  for  the 
Supreme  Court  of  Michigan,  said:  "Unrea- 
sonable dday  to  prosecute  an  existing  claim 
Is  a  bar  to  a  bill  in  equity,  es[)eclally  when 
parties  cannot  be  restored  to  their  original 
position  and  injustice  may  be  done.  *  •  • 
In  one  case  after  a  delay  of  three  years,  and 
after  the  land  which  was  the  subject  of  the 
contract  had  greatly  increased  In  value,  this 
court  refused  to  sustain  a  bill  for  specific  per- 
formance of  a  contract  to  convey  on  the 
ground  that  the  party  had  not  used  reason- 
able diligence.  Nothing  can  call  forth  a  court 
of  equity  Into  activity  but  conscience,  good 
faith,  and  reasonable  diligence.  Where  these 
are  wanting  the  court  Is  passive  and  does 
nothing."  In  Royal  Bank  v.  Railroad  Co., 
125  Mass.  494,  it  Is  said:  "Having  thus  by 
their  acta  and  laches  for  three  years  induced 
the  other  party  to  suppose  that  they  have 
abandoned  this  contract,  it  Is  too  late  to  ap- 
ply to  this  court  to  enforce  it"  In  B.  &  M. 
R.  R.  v.  Bartlett  10  Gray,  384,  the  same  court 
said:  "A  court  of  equi^  applies  the  rule  of 
laches  according  to  Its  own  circumstances. 
Whether  the  time  the  negligence  has  8ul>sist- 
ed  is  sufficient  to  make  it  effectual  is  a  ques- 
tion to  be  resolved  by  the  sound  discretion  of 
the  court  •  •  •  Laches  and  neglect  are 
always  discountenanced,  and  therefore,  from 
the  beginning  of  this  Jurisdiction,  there  was 
always  a  limitation  of  suits  in  this  court 
The  law  of  laches,  like  the  principle  of  the 
limitation  of  actions,  was  dictated  by  ex- 
perience and  is  founded  in  a  salutary  policy. 
The  lapse  of  time  carries  with  it  the  life  and 
memory  of  witnesses,  the  muniments  of  evi- 
dence, and  other  means  of  proof.  The  rule 
which  gives  it  the  effect  prescribed  is  neces- 
sary to  the  peace,  repose,  and  welfare  of  so- 
cle^. A  departure  from  It  would  open  an 
inlet  to  the  evils  intended  to  be  excluded." 

Following  these  rules,  it  Is  quite  clear  to 
our  minds  that  plaintiff's  action  is  barred, 
and  for  this  reason  the  decree  must  be,  and 
it  is,  affirmed. 


WALLACE  V.  TINNEY  et  al.   (WALLACE, 

Intervener). 

(Supreme  Court  of  Iowa.    Oct  23,  1909.) 

1.  Insane  Pebsons  (§  33*)— GuABDiAMa— Ap- 
pointment. 

Under  Code,  $  3202,  providing  that  a  goard- 
Ian  may  be  appointed  for  a  person  of  unsound 
mind  havine  property  in  the  stat(>  on  apnlication 
to  the  district  court,  etc.,  and  section  225,  pro- 


•Vor  other  cue*  ise  lame  topic  and  ■•cUob  NUMBER  in  Dec.  *  Am.  DlK*.  1907  to  date,  4k  Reporter  Indexea 


Digitized  by  LjOOQ  l€ 


Iowa) 


WATiLACB  ▼.  TINNEY. 


937 


Tidinf;  tbat  the  district  conrt  of  eacii  county 
lias  original  and  exclusive  jurisdiction  to  appoint 
gruardians  of  ttie  property  of  all  sucli  persons, 
nonresidents  of  or  wbo  tiave  property  within  ttie 
county  subject  to  guardianship,  etc.,  the  fact  of 
incompetency  need  not  be  first  found  in  an  in- 
dependent proceeding  by  a  court  of  competent 
jurisdiction  before  an  appointment  of  a  guardian 
can  be  made  for  the  property  of  a  nonresident 
lunatic. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
sons, Dec.  Dig.  !  33.*] 

2.  Insane  Pebsons  ({  83*)— Nonbesidentb— 
Notice— Necessity. 

Neither  the  statute  nor  any  rule  of  consti- 
tutional law  requires  ttie  giving  of  notice  of  an 
application  for  the  appointment  of  a  guardian 
of  the  property  of  a  nonresident,  though  such 
notice  is  necessary  to  the  appointment  of  a 
guardian  for  the  person. 

[Ed.  Note.— For  other  cases,  see  Insane  Per-. 
sons,  Dec.  Dig.   g  33.*] 

3.  Insane  Pebsons  (5  92*)— Actions— Parties 
— Substitution  of  Guabdian. 

The  trial  court  was  justified  in  substitut- 
ing a  guardian  having  letters  of  appointment 
from  the  probate  court  in  place  of  her  ward  as 
a  party  to  an  action. 

[Ed.  Note.— For  other  cases,  see  Insane  Per- 
aons,  Dec.  Dig.  f  92.*] 

4.  Insane  Pebsons  (|  82*)  —  Nonbesident 
Lunatics— Appointment  of  Guabdian— Ju- 
bisoiction. 

The  probate  court  has  jurisdiction  to  ap- 
point a  guardian  of  the  property  of  a  nonred- 
oent  lunatic. 

[E^  Note.— For  other  cases,  see  Insane  Per- 
sons, Cent.  Dig.  I  47;   Dec  Dig.  S  32.*] 

6.  Insane  Pebsons  (8  36*)— Guardian— Ap- 
pointment—Oollateb  ax.  Attack. 

The  probate  court  having  jurisdiction  to 
appoint  a  guardian  of  the  property  of  a  non- 
resident lunatic,  the  snificiency  of  the  showing 
cannot  tie  raised  by  collateral  attack. 

[E}d.  Note.— For  other  cases,  see  Insane  Per- 
sons, Dec.  Dig.  S  36.*] 

Appeal .  from  District  Court,  Woodbury 
County;  F.  B.  Gaysor  and  David  Mould, 
Judges. 

In  an  action  brought  by  plaintiff  against 
defendant  Margaret  Tlnney,  involTlng  the 
ownership  of  certain  real  estate,  Margaret 
Wallace  Intervened.  Thereafter  Letltla  Wal- 
lace sought  to  be  substituted  for  Margaret 
Wallace  on  the  ground  tbat  she  had  been 
apxiolnted  guardian  for  Margaret  Wallace; 
she,  Margar,et,  being  of  unsound  mind. 
Plaintiff  objected  to  the  substitution  because 
Letltla  Wallace  had  never  been  legally  ap- 
I>ointed  guardian.  These  objections  were 
overruled.  Thereupon  plaintiff  filed  a  plea 
In  abatement  of  Intervener's  petition,  based 
upon  the'  ground  that  the  substituted  Inter- 
vener had  no  authority  to  prosecute  the 
same.  Letitla  Wallace  demurred  to  this 
plea,  and  the  demurrer  was  sustained,  and 
the  plea  of  abatement  striclcen  from  the 
flies.    Plaintiff  appeals.    Affirmed. 

Shull,  Famsworth  &  Sammia  and  O.  D. 
Ni(*le,  for  appellant.  E.  P.  Farr,  for  ap- 
pellee Margaret  Tlnney.  F.  B.  Robinson  and 
Jepson  &  Jepson,  for  appellees  Margaret 
Wallace  and  Letltla  Wallace. 


DEEMER,  J.  One  branch  of  this  case  has 
already  been  before  this  court.  See  Wal- 
lace V.  Wallace,  141  Iowa,  306,  119  N.  W. 
752.  After  the  bringing  of  that  action  Mar- 
garet  Wallace  plaintiff  herein,  commenced 
this  suit  against  defendant  Margaret  Tln- 
ney, her  alster-ln-law,  being  the  sister  of  her 
husband,  James  Wallace,  to  quiet  her  title 
to  the  same  property  which  was  Involved  In 
the  case  which  reached  this  court  on  the 
former  appeal.  Margaret  Wallace,  who  was 
defendant  In  that  action  and  the  mother  of 
plaintiff's  husband  and  of  John  Wallace,  de- 
ceased, intervened,  claiming  title  to  the  prop- 
erty. Le):Itla  Wallace  was  upon  her  own 
application  appointed  by  the  district  court 
of  Woodbury  county,  sitting  as  a  court  of 
probate,  guardian  of  the  property  of  Marga- 
ret Wallace,  who,  It  is  claimed,  was  insane, 
and  a  resident  of  county  Antrim,  Ireland. 
It  was  also  alleged  that  Margaret  Wallace 
was  a  spendthrift,  and  Incapable  of  attend- 
ing to  her  property  In  Woodbury  county. 
Thereafter  the  guardian  filed  a  report  In 
which  she  set  forth  that  her  ward  was  Inter- 
ested in  this  suit,  tbat  she  had  employed 
F.  B.  Robinson,  Esq.,  to  loolc  after  her  In- 
terests, and  asked  for  the  approval  of  her 
acts.  This  approval  was  granted,  and  there- 
upon the  order  of  substitution  was  asked 
and  obtained.  The  appeal  is  from  the  or- 
der of  substitution,  and  also  from  the  rul- 
ing on  pleas  in  abatement  filed  to  the  peti- 
tion of  intervention. 

The  principal  contention  made  for  plain- 
tiff and  appellant  is  that  the  order  for  the 
appointment  is  void  for  the  reason  that  the 
said  ward,  Margaret,  was  not  given  notice  of 
the  application;  that  she  was  a  resident  of 
a  foreign  cound7  over  whom  the  court  had 
no  jurisdiction;  that  the  hearing  was  ex 
parte;  and  that  there  was  no  finding  of 
facts  sufficient  to  justify  the  appointment. 
Our  statute  (Code,  g  3202)  provides:  "A 
guardian  may  be  appointed  for  a  nonresident 
minor,  idiot,  lunatic,  or  person  of  unsound 
mind,  who  has  property  in  this  state,  on  ap- 
plication to  the  district  court  or  judge  of 
the  county  In  which  such  property,  or  any 
part  thereof,  may  be,  who  shall  qualify  in 
the  same  manner,  have  the  same  powers, 
and  be  subject  to  the  same  rules  as  guardi- 
ans of  resident  minors."  It  is  argued  that 
no  appointment  can  be  made  for  a  non- 
resident lunatic  or  person  of  unsound  mind 
unless  the  fact  of  incompetency  Is  first  found 
by  a  court  of  competent  jurisdiction.  In 
other  words,  It  is  insisted  that  the  status  of 
the  party  must  first  be  fixed  by  judicial  de- 
cree. This  is  a  strained  construction  of  the 
statute.  Of  course,  the  fact  of  incompetency 
must  be  established;  but  in  our  opinion  this 
may  be  done  under  the  application  for  ap- 
pointment, and  need  not  precede  the  appli- 
cation.    This   view   is  confirmed  by  refer- 


•For  other  caaes  lee  same  topic  and  secUon  NUMBER  In  Dec.  A  Am.  Digs.  1107  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


938 


122  NORTHWBSTBBN  RBPOBTBB. 


(Iowa 


ence  to  sectton  225  of  the  Ckxle,  wMcb  reads 
as  followa:  "The  district  court  of  each 
county  has  original  and  exclusive  jurisdic- 
tion ♦  •  •  to  appoint  guardians  of  the 
property  of  all  such  persons,  nonresidents, 
of  or  -who  have  property  within  the  county, 
subject  to  guardianship,  or  whose  property 
is  afterwards  brought  In^o  the  county."  A 
court  would  have  no  jurisdiction  of  a  purely 
personal  action  against  a  nonresident  of  the 
state,  and  could  not  appoint  a  guardian  of 
the  person  of  a  nonresident  If  appellant's 
contention  were  correct — that  no  appointment 
may  be  made  of  a  guardian  of  the  proi>erty 
of  a  nonresident,  and  that  there  should  first 
be  a  Juridical  determination  of  the  fact  of 
insanity  in  an  independent  suit— this  would. 
In  effect,  deprive  a  probate  court  of  its  pow- 
er to  protect  the  property  of  a  nonresident 
laboring  nnder  a  disability.  It  will  be  ob- 
served that  the  appointment  here  was  of  the 
property,  and  not  of  the  person,  and  It  fol- 
lows that  the  trial  court  must  have  held 
that  Mrs.  Wallace  was  a  person  of  unsound 
mind,  or  a  lunatic.  Harklns  v.  Bdwards,  1 
Iowa,  426;  Hartford  Bank  v.  Green,  11 
Iowa,  476;  Cook  v.  Tallman.  40  Iowa,  133; 
Soofleld  V.  McDowell,  4T  Iowa,  129;  Ocken- 
don  V.  Barnes,  43  Iowa,  616;  Seerley  v. 
Sater,  68  Iowa,  876.  27  N.  W.  262;  Guthrie 
V.  Guthrie,  84  Iowa,  877,  51  N.  W.  13. 

Again,  it  is  argued  that,  as  no  notice  was 
ever  served  upon  Margaret  Wallace  of  the 
application  for  the  appointment  of  a  guardian, 
the  proceedings  were  void  for  want  of  no- 
tice. The  allegations  in  the  plea  of  abate- 
ment with  reference  to  ttiis  matter  are  as 
follows:  "Par.  6.  Plaintiff  further  alleges 
that  the  proceedings  had  in  the  matter  of 
the  appointment  of  said  Letltla  Wallace  as 
guardian  of  Margaret  Wallace,  aforesaid, 
are  shown  by  the  said  exhibits  A,  B,  C,  and 
D  to  be  absolutely  void,  and  that  no  notice 
was  ever  given  to  the  said  Margaret  Wallace 
of  said  appointment,  either  actual  or  con- 
structive." The  exhibits  referred  to  are  the 
application  for  appointment,  the  report  of 
the  guardian,  and  the  order  of  court  thereon, 
and  the  order  appointing  the  guardian. 
These  do  not  show  that  no  notice  was  giv- 
en. But  we  do  not  think  that  either  the 
statute  or  any  rule  of  constitutional  law  re- 
quires the  giving  of  notice  of  an  applica- 
tion for  the  appointment  of  a  guardian  of 
the  property  of  a  nonresident  Surely  our 
statute  does  not  require  any  notice,  and,  if 
it  t>e  required,  it  must  be  in  virtue  of  some 
general  rule  of  law  or  constitutional  re- 
quirement Doubtless  no  guardian  may  be 
appointed  for  the  person  of  another  without 
notice,  and  this  is  what  the  cases  for  appel- 
lant seem  to  hold.  Some  of  them  perhaps  go 
so  far  as  to  hold  that  notice  must  be  given 
if  the  appointment  is  to  be  of  a  guardian 
for  the  property.  But  we  are  constrained 
to  take  a  different  view.    Our  view  is  well 


explained  In  two  cases,  one  from  Minnesota 
and  the  other  from  Maryland.  In  Knrts  t. 
St  Paul  &  D.  R.  Co.,  48  Minn.  339,  51  N. 
W.  221,  81  Am.  St  Rep.  667,  the  Supreme 
Court  of  Minnesota  said:  "The  power  to  ap- 
point a  guardian  of  the  estate  of  a  nonresi- 
dent minor  situated  In  this  state  is  nnqoes- 
tioned,  and  the  purpose  of  so  doing  is  the 
same  as  in  appointing  a  guardian  of  the  per- 
son and  estate  of  a  resident  minor.  Notice 
of  the  hearing  of  such  appointment  is  not  a 
constitutional  prerequisite  to  the  Jurisdic- 
tion to  name  a  guardian.  Appointing  a 
guardian  deprives  no  one  of  his  property, 
and  does  not  change  or  affect  the  title  to 
it  Letters  of  guardianship  are  merely  a 
commission  which  places  the  property  of  the 
ward  In  the  care  of  an  officer  of  the  court 
as  custodian,  and  in  Its  effect  is  not  essential- 
ly different  from  the  appointment  of  a  re- 
ceive or  temporary  administrator,  a  Ju- 
risdiction which  can  be,  and  frequently  is, 
exercised  before  service  of  any  process. 
The  matter  of  notice  of  an  application  for 
the  appointment  of  a  guardian  is  there- 
fore purely  a  matter  of  statutory  require- 
ment" The  Supreme  Coiut  of  Maryland 
had  this  question  before  it  and  in  the 
course  of  Its  opinion  said:  "It  had  been  held 
that  proceedings  In  lunacy  bad  without  no- 
tice to  the  party  alleged  to  be  insane  are 
void  so  as  to  render  absolutely  null  decrees 
and  orders  passed  In  the  cause,  or  by  virtue 
of  such  proceedings.  But  the  better  opin- 
ion seems  to  be,  the  court  having  jurisdic- 
tion of  the  subject-matter  of  the  proceedings, 
that  want  of  notice  will  merely  have  the 
effect  to  render  the  proceedings  voidable  by 
the  party  himself,  but  not  void  as  to  other 
partiea  Nor  can  advantage  of  want  of  no- 
tice be  taken  In  collateral  proceedings.  The 
law  Is  BO  stated  in  Van  Fleet  on  Collateral 
Attack.  In  section  413  the  author  says: 
'An  insanity  inquest  held  without  notice  is 
not  void  when  collaterally  attacked.  In  all 
proceedings  where  the  court  has  the  control 
and  possession  of  property,  holding  It  in 
trust  for  the  rightful  owner,  such  as  pro- 
ceedings in  administration,  admiralty,  at- 
tachment bankruptcy,  and  Insolvency,  and 
seizures  for  breach  of  the  criminal,  penal, 
or  revenue  laws,  the  seizure  of  the  proper- 
ty gives  Jurisdiction,  and  notice  is  a  mere 
matter  of  curtesy.  So  in  regard  to  notices  to 
infants  and  non  compotes.'  *  *  *  In 
cases  of  adjudication  of  insanity  and  the 
appointment  of  a  guardian  all  necessary  pri- 
or steps  are  presumed;  so,  where  the  rec- 
ord in  such  a  case  was  silent  as  to  serv- 
ice, it  was  presumed.  In  a  collateral  case 
the  record  was  silent  as  to  whether  the  de- 
fendant had  been  produced  in  court  or  bis 
presence  dlqtensed  with,  and  it  was  held 
that  the  presumption  was  that  he  was  pro- 
duced, or  that  the  court  dispensed  with  his 
production,  and  the  text  is  fully  sustained 


Digitized  by 


Google 


Iowa) 


LEMON  ▼.  SIGOUBNEY  SAVINGS  BANE. 


939 


by  the  case  of  Ockendon  ▼.  Barnes,  43  Iowa, 
616."  See  Packard  v.  Ulrlch,  106  Md.  246, 
67  AU.  247,  12  L.  R.  A.  (N.  S.)  895.  Of 
coarse,  If  notice  were  essential  to  Jurisdic- 
tion and  none  was  given,  the  appointment 
would  be  void  and  of  no  effect;  but  it  does 
not  sufficiently  appear  that  none  was  given, 
and.  If  It  did  bo  appear,  we  are  of  opinion 
that  no  notice  was  required.  Letltla  Wal- 
lace bad  letters  of  appointment  from  the 
probate  court,  and  the  trial  court  was  Jus- 
tified In  substituting  her  in  place  of  ber 
ward. 

The  plea  In  abatement  of  tbe  petition  of 
intervention  was  a  collateral  attack  upon  the 
appointment  made  by  the  probate  court  It 
Is  said  that  tbe  hearing  In  the  probate  court 
was  ex  parte,  based  entirely  upon  tbe  aver- 
ments of  tbe  application  that  no  testimony 
was  adduced,  and  that  the  proceedings  were 
coram  non  Judice.  These  claims  are  not 
sustained  by  the  record.  Moreover,  the  pro- 
bate court  clearly  bad  Jurisdiction  to  ap- 
point a  guardian  of  the  property  of  a  non- 
resident lunatic  or  insane  person.  Such  an 
appointment  was  made,  and  this  plea  in 
abatement  filed  In  this  case  is  a  collateral 
attack  upon  the  probate  proceedings.  The 
sotuciency  of  the  showing,  the  court  having 
Jurisdiction,  cannot  be  raised  by  collateral 
attack.  This  is  sustained  by  the  unbroken 
voice  of  authority.  Outhrle  v.  Guthrie,  84 
Iowa,  372,  51  N.  W.  13;  Ockendon  v.  Barnes, 
43  Iowa,  615;  Minnesota  Loan  &  Trust  Co. 
V.  Beebe,  40  Minn.  7,  41  N.  W.  232,  2  L.  R. 
A.  418;  Pick  T.  Strong,  26  Minn.  303.  3  N. 
W.  697. 

The  last  and  only  other  proposition  made 
for  appellant  is  that  the  probate  record 
does  not  show  a  finding  tliat  Margaret  Wal- 
lace was  Insane,  but,  on  tbe  contrary,  simply 
finds  that  it  was  for  the  best  interest  of  the 
property  and  the  estate  that  a  guardian  be 
appointed  of  the  property.  This  Is  too 
narrov^  a  construction  of  tbe  order,  which 
should  be  considered  and  construed  in  its 
entirety,  that  shows  a  finding  of  Mrs.  Wal- 
lace's incompetency,  and  it  also  appears 
that  letters  of  guardianship  were  issued. 
That  such  appointment  is  conclusive  against 
a  collateral  attack,  see  Moreland  v.  Law- 
rence, 23  Minn.  84;  Ockendon  t.  Barnes,  43 
Iowa,  615. 

Onr  conclusions  in  this  case  are  bottomed 
upon  the  fact  that  tbe  appointment  here 
was  of  a  guardian  of  the  property  of  a  non- 
resident, Insane  person.  Had  the  appoint- 
ment been  of  a  guardian  of  the  person  or 
of  a  guardian  of  the  person  and  property,  a 
different  rule  would  doubtless  obtain  upon 
tbe  question  of  notice. 

There  was  no  error  in  the  order  of  substi- 
tution or  in  the  ruling  sustaining  the  demur- 
rer to  the  plea  of  abatement  They  must 
therefore  be  affirmed. 


LEMON  V.  SIGOURNET  SAVINGS  BANK. 
(Supreme  Court  of  Iowa.    Oct  26,  1909.) 

1.  Affeai,  and  Eebob  (t  1006*)  —  Review — 
Thibd  Tbial. 

A  thiid  verdict  should  not  be  set  aside  and 
the  cause  remanded  for  a  fourth  hearing  save 
upon  a  clear  and  satisfactory  showing  of  preju- 
dicial error. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Enor^  Cent  Dig.  H  8951-3954;    Dec  Dig.  { 

2.  Appeai,  and  Ebbob  (|  1097*)— Law  of  the 
Case. 

The  decision  of  identical  or  but  slightly 
variant  questions  upon  former  appeals,  whether 
right  or  wrong,  must  b«  regarded  as  the  law  of 
the  case. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  §§  4308-4368;  Dec  Dig.  | 
1097.^] 

Appeal  from  District  Court,  Keokuk  Coun- 
ty;  K.  E.  Wlllcoxen,  Judge. 

"Not  to  be  officially  reported." 

Action  at  law  to  recover  the  amount  of 
certain  promissory  notes  alleged  to  have  been 
left  with  the  bank  for  safe-keeping,  collec- 
tion, and  investment  By  a  second  count  of 
her  petition  she  also  seeks  a  recovery  on  an 
alleged  certificate  of  deposit  issued  in  ber 
favor.  There  was  a  verdict  and  Judgment  in 
plaintiff's  favor,  and  defendant  appeals.  Af- 
firmed. 

D.  W.  Hamilton,  D.  T.  Stockman,  and  3. 
P.  Talley,  for  appellant  O.  M.  Brown,  for 
apiwllee. 

PER  CURIAM.  This  cause  was  once  be- 
fore tbis  court  on  the  appeal  of  the  plain- 
tiff and  reversed  in  her  favor.  See  Lemon 
V.  Bank,  131  Iowa,  79,  108  N.  W.  104,  for  a 
more  detailed  statement  of  the  nature  of  tbe 
controversy.  It  was  again  before  us  on  the 
defendant's  appeal  from  an  order  of  tbe  trial 
court  setting  aside  a  verdict  in  its  favor  and 
awarding  a  new  trial,  wlilch  order  we  af- 
firmed. See  Lemon  v.  Bank,  116  N.  W.  1041. 
We  are  now  asked  to  review  the  record  of 
the  third  trial,  set  aside  tbe  verdict,  and  re- 
mand tbe  case  for  a  fourth  hearing  in  tbe 
district  court  Surely  tbis  should  not  be 
done,  and  this  protracted  litigation  should 
not  be  given  a  new  lease  of  life  save  upon  a 
clear  and  satisfactory  showing  of  prejudicial 
error.    This  we  do  not  find. 

1.  So  far  as  the  sufficiency  of  the  evidence 
Is  concerned,  we  held  on  the  first  appeal  that 
It  was  ample  to  sustain  a  finding  in  appellee's 
favor,  and  that  the  trial  court  erred  in  di- 
recting a  verdict  against  her.  The  testimony 
in  the  present  record  is  in  substantially  all 
material  points  a  repetition  of  that  given  on 
the  first  trial,  and,  adhering  to  the  conclu- 
sion there  reached  by  us,  we  think  the  ver- 
dict cannot  be  successfully  impeached  for 
lack  of  evidence. 

2.  Nor  do  we  feel  Justified  In  again  at- 
tempting an  extended  review  of  tbe  legal 


•For  other  cases  see  same  topic  and  notion  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  4b  Reporter  lodezei 


Digitized  by  VjOOQ  l€ 


940 


122  NORTHWESTERN  REPORTER. 


(Iowa 


propositions  urged  upon  oar  attention  by  the 
appellant  In  most  respects  they  are  Iden- 
tical or  but  slightly  variant  from  those  on 
which  we  have  already  passed,  and  our  de- 
cision thereof,  whether  right  or  wrong,  must 
be  regarded  as  the  law  of  the  case.  We  find 
no  error  in  the  rulings  upon  the  admission 
of  testimony. 

Numerous  criticisms  are  directed  against 
the  court's  charge  to  the  jury.  Many  of  them 
are  too  finely  drawn  for  practical  value,  and 
others  are  not  in  our  Judgment  well  ground- 
ed. Verbal  forms  of  expression  vary  as  to 
the  individual  characteristics  of  Judges  of 
equal  ability  and  fairness,  while  the  essential 
effect  and  meaning  remain  the  same.  The 
propositions  of  law  stated  in  the  charge  are 
coached  in  language  which  is  not  inappro- 
priate, and  they  are  pertinent  to  the  issues 
presented.  The  appellant  requested  but  three 
instructions  of  the  refusal  of  which  complaint 
is  made,  but  the  substance  and  effect  of 
these  requests,  so  far  as  they  were  proper, 
are  clearly  emiKidied  in  other  paragraphs  giv- 
en by  the  court  on  its  own  motion. 

We  are  clearly  of  the  opinion  that  no 
ground  is  shown  for  a  reversal,  and  the  Judg^ 
ment  of  the  district  court  la  therefore  af- 
firmed. 


SIOUX  CITY  T.  WOODBURY  COUNTT. 

(Supreme  Court  of  Iowa.    Oct.  27,  1909.) 

Intoxicating  Liquobs  (J  95*)  —  Collection 
BT  County  Trkasttbeb  fob  Municipalities 
—Liability  of  CouNtY. 

Code  1897,  {  2445,  provides  that  mulct  liq- 
uor taxes  shall  be  paid  into  the  county  treasury, 
one-half  to  go  into  the  general  county  fund,  and 
the  remainder  to  the  municipality  in  which  the 
business  taxed  ia  conducted,  and  that,  where  the 
tax  l>elong8  to  the  county  treasury,  and  there 
is  a  surplus  in  the  general  fund,  the  supervisors 
may  transfer  such  surplas,  not  exceeding  the 
amount  of  such  tax,  to  the  county  road  fund. 
Held  that,  while  payment  of  mulct  liquor  taxes 
is  required  to  be  made  into  the  county  treasury, 
only  one-half  thereof  is  the  property  of  the  coun- 

§r,  and  it  is  not  liable  to  a  city  for  the  amount 
educted  by  the  county  treasurer,  as  a  collection 
charge,  from  the  city  s  one-half  of  the  tax. 

[Bd.  Note. — For  other  cases,  see  Intoxicating 
Liquors,  Cent.  Dig.  i  101 ;  Dec  Dig.  ji  95.*] 

Appeal  from  District  Court,  Woodbury 
County;    P.  R.  Gaynor,  Judge. 

Suit  to  recover  a  part  of  the  mulct  liquor 
tax  collected  for  the  plaintiff's  use  by  the 
defendant's  treasurer.  There  was  a  Judg- 
ment for  the  plaintiff,  from  which  the  de- 
fendant appeals.    Reversed. 

Strong  &  Whitney,  for  appellant  Fred  W. 
Sargent,  for  appellee. 

SHERWIN,  J.  J.  A.  Magoun  was  treas- 
urer of  Woodbury  county  during  the  years 
1902  and  1903,  and  as  such  treasurer  re- 
ceived mulct  taxes  from  various  persons 
amounting  to  a  large  sum.    One-half  of  the 


amount  so  received,  less  tbree-foarths  of  1 
per  cent,  thereof,  which  Magoun  retained  as 
a  collection  charge,  was  paid  over  to  the 
city.  This  suit  was  brought  to  recover  of 
Magoun  and  the  county  the  amount  so  re- 
tained by  Magoun.  It  was  brought  more 
than  three  years  after  Magoun  went  out  of 
office,  and  for  that  reason  his  demurrer  to 
the  petition  was  sustained,  and  by  an  amend- 
ed and  substituted  petition  the  county  alone 
was  made  defendant. 

There  is  no  dispute  over  the  facts  In  the 
case.  The  mulct  taxes  were  paid  Into  the 
county  treasury,  and  Magoun,  in  the  belief 
that  he  had  a  right  to  do  so,  deducted  from 
the  amount  thereof  due  the  city  the  collec- 
tion charge  to  which  we  have  referred.  Sec- 
tion 2445  of  the  Code,  so  far  as  the  same  is 
material  here,  is  as  follows:  "The  revenues 
derived  from  the  tax  provided  for  in  this 
chapter  shall  be  paid  into  the  county  treas- 
ury, one-half  to  go  into  the  general  county 
fund,  and  the  remainder  to  be  paid  over  to 
the  municipality  in  which  the  business  taxed 
is  conducted.  *  *  *  In  counties  where 
a  tax  on  the  traffic  in  intoxicating  liquors  is 
paid  into  and  belongs  to  the  county  treas- 
ury, and  when  there  is  a  surplus  In  the  gen- 
eral fund,  the  board  of  supervisors  may 
transfer  such  surplus,  not  exceeding  the 
amount  of  such  liquor  taxes,  to  the  county 
road  fund,  and  expend  the  same  upon  the 
roads  of  the  county."  The  requirement  that 
such  taxes  shall  be  paid  into  the  county 
treasury  is  the  basis  of  the  appellee's  claim 
that  the  entire  amount  thereof  Is  due  and 
payable  to  the  county,  and  is  not  collected 
in  the  first  instance  for  the  municipality, 
and,  further,  that  when  such  taxes  are  paid 
into  the  county  treasury  In  the  regular  way, 
the  county  is  bound  to  pay  one-half  thereof 
over  to  the  municipality,  and  cannot  escape 
liability  for  the  wrongful  act  of  its  treasurer. 
The  trouble  with  the  appellee's  position  is 
that  only  one-half  of  such  taxes  ever  be- 
comes the  property  of  the  county.  While  the 
statute  requires  payment  thereof  into  the 
county  treasury,  one-half  of  the  sum  so  paid 
t)elongs  to  and  Is  the  property  of  the  munici- 
pality in  which  the  business  taxed  is  con- 
ducted. The  last  clause  of  the  section  dear- 
ly negatives  the  right  of  the  county  to  in 
any  way  control  the  fond  t>eIonging  to  the 
municipality,  for  it  provides  for  the  disposi- 
tion of  only  such  part  of  the  tax  as  belongs 
to  the  county.  In  oar  Judgment  no  distinc- 
tion can  be  made  between  mulct  taxes  paid 
into  the  county  treasury  for  the  benefit  of  a 
municipality  and  taxes  paid  into  said  treas- 
ury for  the  benefit  of  the  state,  or  for  school 
districts  or  railroads.  It  is  the  duty  of  the 
treasurer  to  collect  the  mulct  tax  Just  as  it 
is  his  duty  to  collect  any  other  tax ;  and.  If 
be  fails  to  account  for  taxes  so  collected,  he 
is  liable  for  his  delinquency,  and  not  the 
county.    Cedar  Rapids  R.  R.  Co.  v.  Cowan, 


•For  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  *  ReportW  Index** 


Digitized  by  VjOOQ  l€ 


Iowa) 


KENDALL  t.  BOYER. 


941 


77  Iowa,  635,  42  N.  W.  436 ;  Barnes  v.  Coun- 
ty of  Marshall.  86  Iowa,  20,  8  N.  W.  677; 
Iowa  R.  R.  Land  Co.  v.  Woodbury  County, 
64  Iowa,  212,  19  N.  W.  916;  Yockey  v.. Wood- 
bury County,  130  Iowa,  412,  106  N.  W.  950. 
The  money  deducted  from  the  fund  belong- 
ing to  the  city  was  kept  by  Magoun,  and 
the  county  never  received  any  benefit  there- 
from. The  case  is  therefore  within  the  rule 
of  the  cases  cited,  and  the  appellant  Is  sot 
liable  therefor. 

The  Judgment  of  the  district  court  la  re- 
versed. 

Reversed. 


KENDALL  v.  BOTER. 
(Snpi«me  Court  of  lova.    Oct.  26,  1909.) 

1.  AucnORS    AND    AUCTIONEEBB    ({    6*)— NA- 
TUBE  or  AnCTIOHEEB'S  POWEB. 

An  auctioneer  at  a  public  sale  acts  in  a 
quasi  public  capacity,  and  has  authority  to 
represeat  and  bind  tiotb  tlie  buyer  and  seller, 
and,  at  the  time  and  place  appointed  for  the 
sale,  may  announce  the  terms  and  conditions 
upon  which  the  property  is  to  be  sold. 

[Ed.  Note.— For  other  cases,  see  Auctions,  and 
Auctioneers,  Cent  Dig.  il  16-18:  Dec.  Dig. 
i  6.»] 

2.  Auctions  and  Auctioneebb  (S  7*)— Cokdi- 
TiONB  OF  Sale— Binding  Fobce. 

The  conditions  of  a  public  sale  announced 

b^  the  auctioneer  at.  the  time  and  place  of  sale 

bmd  a  buyer,  whether  he  knew  of  them  or  not. 

[Ed.  Note. — For  other  cases,  see  Auctions  «nd 

Auctioneers,  Cent.  Dig.  I  21 ;    Dec.  Dig.  §  7.*] 

8.  Auctions  and  Auctioneebs  (I  7*)— Rioht 
TO  MoDinr  Whitten  Tebms  of  Sale. 

Formal  written  terms  of  public  sale,  dis- 
tributed prior  to  the  sale,  may  be  modified  or 
added  to  by  the  auctioneer  at  the  beginning  of 
sale. 

[Ed.  Note.— For  other  cases,  see  Auctions  and 
Auctioneers,  Cent  Dig.  |  21;   Dec.  Dig.  {  7.*] 

4.  Evidence  (|  213*)— Compbtenct. 

A  written  communication,  which  was  com- 
petent evidence  for  other  purposes,  was  not  ren- 
dered incompetent  because  it  contained  an  offer 
of  compromise. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  f  751 ;   Dec.  Dig.  §  213.*] 

5.  Frauds.  Statute  of  (f  116*)— Aduissions 
— Auctioneeb'b  Mehobandum  of  Sale.' 

In  an  action  by  a  buyer  at  public  sale  for 
damages  from  refusal  of  the  seller  to  deliver  the 
purchase,  the  written  record  of  sale,  so  far  as 
It  related  to  the  purchase  in  question,  was  ad- 
missible as  a  memorandum  made  by  the  clerk 
acting  as  agent  for  both  parties. 

[Ed.  Note. — For  other  cases,  see  Frauds,  Stat- 
nte  of.   Cent.   Dig.  U  251-260;    Dec.  Dig.   § 

Appeal  from  District  Court,  Washington 
County;  Byron  W.  Preston,  Judge. 

Action  to  recover  damages  for  refusal  of 
defendant  to  deliver  certain  40  tons  of  hay 
purchased  by  plaintiff  from  defendant  at  auc- 
tion. There  was  a  denial,  and  also  a  counter- 
claim against  plaintlCt  for  damages  for 
breach  of  the  same  sale.  There  was  a  ver- 
dict In  favor  of  defendant  on  his  counter- 
dalm,  and  from  judgment  on  such  verdict 
plaintiff  appeals.    Ainrmed. 


S.  W.  &  J.  L.  Brookhart,  for  appellant 
Eicber  &  Livingston,  for  appellee. 

McCLAIN,  J.  The  principal  error  urged 
upon  our  attention  for  appellant  related  to 
an  Instruction  of  the  court  submitting  defend- 
ant's counterclaim  to  the  jury.  Plaintiff  bid 
on  about  40  tons  of  bay  at  an  auction  sale, 
and  It  was  struck  off  to  him ;  but  on  his  fail- 
ure, as  defendant  alleges,  to  comply  with  the 
terms  of  the  sale  as  to  taking  It  away,  de- 
fendant, acting  under  alleged  conditions  of 
the  sale  giving  him  a  right  to  do  so,  resold 
it  at  less  than  the  price  bid,  and  seeks  to  re- 
cover by  way  of  damages  sueh  sum  as  neces- 
sary to  make  bim  good  for  the  loss  of  the 
sale  to  plaintiff.  Plaintiff  denies  any  con- 
tract or  condition  of  the  sale  authorizing  de- 
fendant to  ree^  and  recover  the  deficiency. 
Testimony  of  the  auctioneer  was  offered, 
and  admitted  over  plaintiff's  objection,  that 
the  condition  of  the  sale  alMve  referred  to 
was  one  announced  by  him  at  the  tieglnnlng 
of  the  sale ;  and  plaintiff  testified  that  be  was 
not  present  when  such  condition  was  an- 
nounced, and  knew  nothing  of  It  With  ref- 
erence to  this  testimony  the  court  Instructed 
that:  "The  defendant  bad  the  right  to  fix 
and  prescribe  the  terms  of  the  sale,  and  If 
annoqnced  by  the  auctioneer  at  the  com- 
mencement of  the  sale,  such  terms  would  be 
binding  upon  the  plaintiff,  whether  he  knew 
them  or  not"  The  public  sale  of  property 
to  the  highest  bidder  by  a  duly  authorized 
auctioneer  is  a  form  of  commercial  transac- 
tion of  great  antiquity,  and  stlU  In  common 
use.  The  auctioneer  acts  In  a  quasi  public 
capacity.  He  Is  usually  required  to  have  a 
public  license,  and  has  authority  to  represent 
and  bind  both  parties.  At  the  time  and  place 
appointed  the  auctioneer  announces  the  terms 
and  conditions  under  which  the  property  Is 
to  be  sold ;  that  is,  subject  to  which  the  pro- 
posed purchaser  wUl  become  the  owner  of 
the  property  If  he  Is  declared  the  highest 
bidder.  Fai-r  v.  John,  23  Iowa,  286,  92  Am. 
Dec.  426;  Bateman,  Auctions,  2.  The  undis- 
puted evidence  is  that  the  condition  relied  on 
by  the  defendant  was  announced  by  the  auc- 
tioneer, and  it  became  binding  on  plaintiff  as 
purchaser,  whether  he  knew  of  It  or  not  It 
has  been  so  held  as  to  posted  terms  or  con- 
ditions referred  to  by  the  auctioneer  at  the 
beginning  of  the  sale,  although  the  purchaser 
does  not  in  fact  have  his  attention  called  to 
them,  and  does  not  notice  them.  Mesnard  v. 
Aldridge,  3  Esp.  271.  This  rule  is  not  ques- 
tioned by  appellant's  counsel,  but  they  Insist 
that  here  there  were  pointed  condltious  of 
sale  Incorporated  In  the  notices  distributed 
before  the  sale,  and  that  plaintiff  was  enti- 
tled to  rely  upon  these  as  containing  all  the 
terms  and  conditions,  imless  his  attention 
was  expressly  directed  to  changes  or  addi- 
tions.   It  seems  to  be  well  settled,  however. 


•For  oilier  cases  see  same  topic  and  lecUon  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  In4exes 


Digitized  by 


Google 


942 


122  NOBTHWESTBRN  BBPORTEB. 


(Iowa 


that  formal  written  terms  may  be  modified  ae 
added  to  by  tlie  auctioneer  at  the  beginning 
of  the  sale.  Ashcom  v.  Smith,  2  Pen.  &  W. 
(Pa.)  211,  21  Am.  Dec.  437;  Satterfleld  ▼. 
Smith,  33  N.  C.  60;  Cannon  t.  MltcheU,  2 
Desans.  (S.  C.)  320 ;  Chouteau  t.  Goddln,  89 
Mo.  229,  90  Am.  Dec.  462.  In  this  case  the 
notices  of  sale  contained  an  announcement 
as  to  the  credit  to  be  given  to  purchasers, 
but  they  did  not  purport  to  state  in  full  the 
terms  or  conditions.  Such  a  mere  advertise- 
ment or  announcement  Is  not  binding,  how- 
ever, as  against  the  auctioneer's  announce- 
ment. Ashcom  V.  Smith,  supra.  We  think 
the  instruction  of  the  court  was  correct 

A  certain  written  communication  from  de- 
fendant to  plalntifT,  In  response  to  a  like  com- 
munication from  plaintiff  to  defendant  with 
reference  to  the  hay,  was  received  in  evi- 
dence, over  plaintiff's  objection  that  it  was 
an  offer  of  compromise.  As  the  writing  was 
competent  evidence  for  other  purposes,  the 
fact  that  it  contained  an  offer  of  compromise 
afforded  no  reason  for  Its  exclusion. 

The  written  record  of  the  sale,  so  far  as 
It  related  to  this  sale  of  hay,  was  admissible 
as  a  memorandum  made  by  the  clerk  acting 
as  agent  for  both  parties.  Doty  v.  Wilder, 
15  111.  407,  60  Am.  Dec.  756 ;  Smith  T.  Jones, 
7  Leigh  (Va.)  165,  30  Am.  Dec.  49a 

The  Judgment  is  a£Brmed. 


SORIVNBR  T.  ANCHOR  FIRE  INS.  CO. 

(Supreme  Court  of  Iowa.    Oct  27,  1909.) 

1.  INBUBANOE  (§  378*)— AoENTB— Knowledge 
OF  AoENT  Imputed  to  Comfant. 

The  soliciting  agent  of  an  Insurance  com- 
pany attempted  to  secure  additional  insnrance 
from  an  insured,  but  was  advised  that  the  in- 
sured would  take  his  additional  insurance  in 
another  company,  but  the  agent  was  requested 
to  forward  the  insured's  policy  to  the  company 
to  procure  an  indorsement  more  fully  covering 
his  goods  insured.  The  agent  had  no  authority 
to  act  for  the  company,  save  as  a  'solicitor,  and 
attempted  to  exerase  no  other  authority  in  le- 
tuming  the  policy  for  reformation.  Held,  that 
defendant  was  not  charged  with  any  notice  as 
to  insured's  intentions  to  talce  additional  in- 
surance, nor  as  to  his  actual  application  to 
another  company  therefor,  thoagh  such  appli- 
cation was  made  before  the  policy  with  the  cor- 
rected description  of  the  goods  insured  was  re- 
turned, and  was  not  estopped  from  setting  up 
as  a  defense  the  breach  of  condition  in  its  pol- 
icy against  the  taking  of  additional  insurance 
in  another  company ;  and  Code,  §  1750,  provid- 
ing that  the  term  "agent"  as  applied  to  insar- 
ance  shall  include  any  person  who  shall,  di- 
rectly or  indirectly,  transact  any  insurance  busi- 
ness for  an  insurance  company,  and  that  any 
agent  representing  such  company  who  may  so- 
licit insurance  or  transact  the  business  generally 
of  such  company  shall  be  held  to  be  the  agent 
of  the  company  with  authority  to  transact  all 
business  within  the  scope  of  his  employment,  la 
immaterial  on  the  question. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent.  Dig.  §§  968-974;    Dec.  Dig.  S  378.*] 


2.  Appeai,  xsd  Ebbob  (|  1010*)— Review— 

FiNDiNO  OF  Fact. 

Findings  of  fact  by  the  trial  court  sup- 
ported in  the  evidence  are  condnsive  upon  the 
Supreme  Court 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  ii  3979-3982;  Dec  Dig.  f 
1010.*] 

Appeal  from  District  Court,  Taylor  Coun- 
ty;  H.  E.  Evans,  Judge. 

Action  to  recover  for  a  loss  under  a  fire  lu- 
surance  policy  held  by  plaintiff  in  defendant 
company.  The  defense  was  that  plaintiff  had 
violated  the  condition  of  his  policy  against 
other  insurance.  There  was  a  trial  to  the 
court  without  a  Jury,  and  on  the  evidence 
offered  the  court  made  Its  findings  of  fact, 
resulting  in  a  Judgment  for  defendant. 
Plaintiff  appeals.    Affirmed. 

William  M.  Jackson,  for  appellant  Sulli- 
van &  Sullivan,  for  appellee. 

McCLAIN,  J.  Flalnturs  policy  In  the  sum 
of  $3,000  was  Issued  in  May,  1907,  covering 
a  stock  of  merchandise  consisting  of  shelf 
and  heavy  hardware,  farm  implements,  and 
such  other  goods  as  are  usually  kept  for 
sale  In  similar  stores,  and  described  as  con- 
tained In  a  frame  building  in  the  town  of 
Buchanan.  On  the  2d  of  September  follow- 
ing, before  noon,  plaintiff  had  some  conver- 
sation with  one  Blagrave,  the  soliciting  agent 
for  the  defendant  company,  through  whom 
the  policy  had  been  procured,  with  reference 
to  additional  insurance  on  the  stock  to  the 
amount  of  $2,500  or  $3,000,  but  later  in  the 
day  plaintiff  advised  Blagrave  that  ho 
thought' he  would  take  his  additional  insur- 
ance in  another  company.  The  plaintiff  de- 
livered his  policy  in  the  defendant  company 
to  Blagrave  to  have  the  policy  changed  so 
as  to  more  completely  cover  his  stock,  and 
later  the  policy  was  returned  by  the  defend- 
ant company  to  plaintiff,  showing  an  In- 
dorsement, dated  September  4th,  reforming 
the  written  portion  so  that  Insurance  should 
be  on  plaintiff's  stock  of  merchandise  of  a 
more  general  character.  After  plaintiff's  con- 
versation with  Blagrave  on  September  2d, 
be  made  application  to  an  agent  of  the  State 
Insurance  Company  for  additional  Insurance 
In  the  sum  of  $3,000  on  his  stock,  which  ap- 
plication was  accepted,  and  a  policy  Issued 
by  the  latter  company  dated  as  of  that  date. 
There  is  some  conflict  in  the  evidence  as  to 
whether  plaintiff,  before  or  at  the  time  be 
directed  Blagrave  to  forward  the  policy  to 
defendant  company  for  the  correction  as  to 
description  of  stock,  notified  him  that  he  in- 
tended to  take  other  insurance,  or  whether 
be  simply  spoke  first  of  taking  other  insur- 
ance in  the  defendant  company,  and  after 
advised  Blagrave  that  he  did  not  Intend  to 
do  so.  The  fact  seems  to  be  that  neither 
plaintiff  nor  Blagrave  contemplated  the  ne- 
cessity of  procuring  defendant's  consent  to 


•For  other  cues  see  same  topic  and  tecUon  NUMBER  la  Dec.  *  Am.  Digs.  1907  to  data,  4b  Bvortw  laden* 


Digitized  by 


Google 


Iowa) 


GRBENWAY  ▼,  TAYLOR  COUNTY. 


943 


additional  Insaraoce^  it  taken  in  another 
company,  and  the  trial  court  found  as  a 
matter  of  fact  that  the  negotiation  between 
plaintiff  and  Blagrave  for  additional  insur- 
ance in  the  defendant  company  was  aban- 
doned, and  Blagrave  was  requested  only  to 
forward  defendant's  policy  to  It  for  the  pur- 
pose of  procuring  an  Indorsement  more  fully 
covering  plalntlfTs  stock.  The  court  also 
finds,  and  this  fact  is  conceded,  that  Bla- 
grave had  no  authority  to  act  for  defendant 
save  as  a  soliciting  agent,  and  that'  he  at- 
tempted to  exercise  no  other  authority  In 
returning  the  policy  to  defendant  for  refor- 
mation. 

Under  these  circumstances  we  think  that 
the  provisions  of  Code,  §  1750,  that  the  term 
"agent"  shall  include  any  person  who  slull 
in  any  manner,  directly  or  Indirectly,  trans- 
act the  insurance  business  for  the  insurance 
company,  and  that  any  agent  representing 
such  company,  who  may  solicit  Insurance, 
procure  applications,  or  transact  the  business 
generally  of  such  companies,  shall  be  held  to 
be  the  agent  of  such  inaarance  company, 
with  aathority  to  transact  all  business  with- 
in the  scope  of  his  employment,  anything  in 
the  policy  or  contract  to  the  contrary  not- 
withstanding, has  no  bearing  in  determining 
whether  the  knowledge  of  Blagrave  that 
plaintiff  contemplated  additional  insurance 
should  be  imputed  to  defendant  company 
whea  It  reformed  plaintlfTs  policy  so  as  to 
cover  more  fuUy  his  stock  of  goods.  It  does 
not  appear  that  at  the  time  Blagrave  re- 
turned plaintiff's  policy  to  defendant  com- 
pany plaintiff  had  In  fact  made  application 
for  additional  Insurance  on  the  stock,  nor 
that  Blagrave  was  advised  definitely  as  to 
the  amount  of  additional  Insurance  which 
plaintiff  intended  to  procure.  The  scope  of 
Blagrave's  employment  was  as  soliciting 
agent  to  return  defendant's  policy  to  it  for 
correction,  and  he  was  not  charged  by  plain- 
tiff with  any  other  duty  or  responsibility  in 
the  matter.  Be  was  not  directed  to  procure 
permission  for  additional  insurance,  and  did 
not  attempt  to  do  so.  Under  these  circum- 
stances we  think  it  Is  plain  that  defendant 
was  not  charged  with  any  notice  as  to  plain- 
tUTs  specific  intentions  with  regard  to  addi- 
tional insurance,  nor  as  to  plaintiff's  actual 
application  to  the  State  Insurance  Company 
for  additional  insurance,  although  such  ap- 
plication was  made  as  a  matter  of  fact  be- 
fore defendant's  policy  with  the  indorsement 
of  the  corrected  description  of  the  stock  was 
returned  to  plaintiff.  These  facts  dlBtingulsh 
this  case  clearly  from  the  cases  on  which 
counsel  for  plaintiff  rely.  See  particularly 
Wensel  ▼.  Property  Mut.  Ins.  Ass'n,  129  Iowa, 
295,  105  N.  W.  522 ;  Liquid  Carbonic  A.  Mfg. 
Co.  v.  Ph<Bnix  Ins.  Co.,  126  Iowa,  225,  101  N. 
W.  749;  Independent  Sch.  Dist  v.  Fideli- 
ty Ins.  Co.,  113  Iowa,  65,  84  N.  W.  956; 
Lutz  V.  Anchor  Fire  Ins.  Co.,  120  Iowa,  136, 


94  N.  W.  274,  98  Am.  St  Rep.  349;  Glasscock 
V.  Des  Moinee  Ins.  Co.,  125  Iowa,  170,  100 
N.  W.  503.  Under  the  finding  of  facts  made 
by  the  trial  court,  which,  as  it  is  supported 
in  the  evidence,  is  conclusive  upon  us,  de- 
fendant company,  when  it  indorsed  a  modi- 
fication on  Its  policy,  was  not  chargeable  with 
notice  of  additional  insurance  applied  for 
in  another  company,  and  is  not  estopped 
from  setting  up  as  a  defense  the  breach  of 
condition  in  its  policy  against  the  taking 
of  additional  insurance  in  another  company. 
The  Judgment  of  the  trial  court  la  there- 
fore affirmed. 


GREBNWAY  v.  TAYLOR  COUNTY. 
(Snpieme  Court  of  Iowa.    Oct  27,  1009.) 

1.  Davaoes  (t  185*)— Pebsonai,  iNjuanta— 
Evidence. 

Evidence  as  to  plaintiff's  injuries  In  an  ac- 
tion for  personal  injuries  held  to  sustain  a  ver- 
dict  for  plaintiff  for  $5,000. 

[Ed.  Note.— For  other  cases,  see  Damages, 
Cent.  Dig.  §§  603-608;    Dec.  Dig.  >  185.*] 

2.  Evidence  ((  647»)— Opinioh  Evidence- 
Subjects  or  Tebthiort— Effbot  or  B0DI1.T 
Injuries. 

In  an  action  for  personal  Injuries,  it  was 
proper  to  allow  plaintiff's  physician  to  answer 
the  inqairy  "What  do  you  say  as  to  whether 
he  has  suffered,  during  the  time  since  his  in- 
jury, a  ^reat  deal  of  pain?"  as  it  amounted  to 
an  inquiry  as  to  whether  the  injuries  were  of 
such  a  cbai&cter  as  would  be  likely  to  cause 
pain. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  |  2364 ;  Dec  Dig.  |  647;*  Witnesses, 
Cent  Dig.  I  849.*] 

3.  Evidence  (J  613*)— Opinion  Evidence- 
Subjects  OF  EZFEBT  Testikont— Defects 
IN  Bbidoe. 

In  an  action  for  personal  injuries  caused 
by  the  collapse  of  a  bridge,  evidence  by  a  wit- 
ness, who  testifies  that  he  baa  had  a  great  deal 
of  experience  in  the  construction  and  repair  of 
bridges,  is  admissible  as  to  the  method  by  wbidi 
he  would  examine  a  bridge  to  ascertain  the  con- 
dition of  the  timbers  therein,  as  the  information 
sought  was  not  familiar  knowledge  to  the  ordi- 
nary juryman. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  §8  2317,  2318;  Dea  Dig.  {  613.*] 

4.  Bbidoes  (§  46*)— Pebsonai.  Injuries— Lia- 
bility—Evidence— Neoliqknce  OF  Countt. 

The  evidence  was  competent  as  bearing  on 
the  issue  whether  the  county  was  negligent  in 
not  discovering  and  repairing  the  defective  tim- 
t>er  in  the  bridge. 

[Ed.  Note.— For  other  cases,  see  Bridges,  Cent. 
Dig.  I  116;   Dec.  Dig.  (  46.*] 

6.  Appeal  and  Ebbob  ({   1064*)— Habuless 

Ebbob— Inbtbuotions. 

The  court,  after  referring,  in  an  instruc- 
tion, to  an  issue,  said  "Some  observations  bear-  . 
ing  upon  this  issue,  as  particularly  applicable 
to  the  case  at  bar,  are  here  submitted  for  your 
consideration."  Held  that,  while  alluding  to 
instructions  as  "some  observations"  is  not  to  t>e 
commended,  the  jury  could  not  have  lieen  mis- 
led by  such  allusion,  and  it  was  therefore  harm- 
less. 

[Bid.  Note.— For  other  cases,  see  Appeal  and 
Error.  Cent  Dig.  Si  4219,  4224;  Dec.  Dig.  { 
1064.*] 


•rot  oQL*t  cases  see  huus  topic  and  section  NUMBER  in  Dec.  *  Am.  Digs.  UOT  to  date.  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


944 


122  NORTHWESTERN  REPORTER. 


(Iowa 


6.  Bridges  ({  46*)— Actions  tob  Injubies— 
Instbuctions. 

In  an  action  for  personal  injuries,  caused 
by  collapse  of  a  bridge,  irhicli  had  been  erect- 
ed 30  years  before  and  bad  been  rebuilt  15 
years  later  and  again  rebuilt  5  years  before  the 
accident,  it  was  shown  that  the  particular  brace 
which  broke  and  caused  the  accident  had  not 
l>een  replaced  in  the  last  rebuilding.  Held,  that 
an  instruction,  reciting  that  the  bridge  had 
been  erected  for  many  years,  and  that  the  jury 
might  consider  that  fact  in  determining  the  care 
that  the  county  supervisors  were  Ijound  to  ex- 
ercise in  discovering  defects,  was  not  erroneous 
because  of  the  reconstruction  of  the  bridge  with- 
in 5  years. 

[Ed.  Note.— For  other  cases,  see  Bridges,  Cent. 
Dig.  i  121 ;    Dec.  Dig.  f  46.*] 

7.  Damaoes  a  187*) —Grounds— Pkcxtniaby 
Losses— Imp AiRicENT  of  Eabninq  Capacitt. 

It  should  not  be  assumed,  in  estimating 
damages  resulting  from  the  disability  to  follow 
plaintiff's  ordinary  vocation,  that  he  will  engage 
In  no  other  pursuit,  nor  that,  If  unable  to  do 
manual  labor,  he  may  not  earn  money  at  some 
intellectual  employment,  and  it  is  unnecessary 
for  definite  proof  of  the  particular  occupation  for 
which  he  may  be  suited  to  be  introduced. 

[Ed.    Note. — For   other  cases,   see   Damages, 
Cent  Dig.  |  500;  Dec  Dfg.  §  187.  *1 "" 

8.  Dauaoes  (S  216*)— Instbuctions— Meab- 
UBE  of  Dauaoes— Iufaibuent  of  Eabnino 
QAPAciry. 

In  an  action  for  personal  Injuries,  an  in- 
struction that  in  fixing  the  damages  the  jary 
should  allow  plaintiff  such  sum  as  will  fairly 
compensate  him  for  the  injury  received,  and  that 
in  so  doing  tbey  should  take  into  consideration, 
if  they  find  the  injury  permanent,  that  prior  to 
the  injury  he  was  capable  of  earning  wages  by 
manual  labor,  and  if  such  Injury,  in  whole  or  in 
part,  incapacitated  him  from  performing  such 
labor,  then  such  'diminished  earning  capacity 
may  be  considered  in  estimating  plaintiffs  dam- 
ages, and  that  plaintiff's  expectancy  of  life  may 
be  considered,  out  that  regard  should  be  had 
to  the  probable  time,  during  such  expectancy, 
that  plaintiff  might  be  expected  to  be  capable 
of  manual  labor  on  account  of  age  and  natural 
infirmity  incident  thereto,  is  not  erroneous  as 
limiting  the  diminution  of  earning  power,  re- 
sulting from  the  injury,  to  that  at  manual  labor, 
where,  on  defendant's  objection  the  only  evidence 
of  plaintifTs  former  earning  capacity  admitted 
was  that  at  manual  labor,  as  the  instruction 
did  not  limit  the  jury  to  a  consideration  of  the 
duration  of  earning  capacity  at  manual  labor, 
but  they  were  at  liberty  under  it  to  take  into 
oonsideration  the  possibility  of  his  engaging  in 
some  other  occupation. 

[Ed.    Note.— For   other   cases,    see   Damages, 
Cent.  Dig.  §§  548-555 ;    Dec.  Dig.  !  216.  •] 

9.  Tbiai,  (S  256*)— Instructions— Requests— 
FuBTHEB  Instbuctions— Necessity. 

Failure  of  the  court  to  especially  direct 
the  jury's  attention  to  a  matter  of  common 
knowledge  is  not  error,  in  the  absence  of  a 
request  for  more  specific  instructions. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  f§  628-641;    Dec.  Dig.  8  256.»] 

10.  Trial  (8  250*)  —  Instbuctions  —  Request 
fob  Furtheb  Instbuctions. 

In  an  action  for  personal^  injuries,  there 
was  no  error  in  omitting  specific  instructions 
with  rcsi)pot  to  the  present  worth  of  the  loss  of 
future  earnings,  where  such  instructions  were 
not   requested. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  8  0:'.7;    Dec.  Dig.  $  256.«] 


11.   DAKAQES  (I  216*)— iNBTRUOnONS— IlCPAIB- 
UENT   OF   EABRINO  GAPAOITT. 

In  an  action  for  personal  injuries,  the  Jury 
were  instructed,  if  they  found  for  plaintiff,  to 
allow  him  such  sum  as  would  fairly  compen- 
sate him  for  the  injury  received,  and  in  so 
doing  to  consider,  if  they  found  such  injury  per- 
manent, that  prior  to  such  Injury  he  was  capa- 
ble of  earning  wages  by  means  of  manual  labor, 
and  if  such  injury  had  incapacitated  him  from 
earning  such  wages,  then  such  diminished  earn- 
ing capacity  might  be  considered  in  estimating 
his  damages.  Hdd  that  the  instruction  was  not 
objectionable  as  failing  to  limit  the  amount  to 
be  awarded  to  the  present  worth  of  loss  of  earn- 
ings in  the  future. 

[Ed.  Note.— For  other  cases,  see  Damages, 
Cent  Dig.  $8  548-555;    Dec.  Dig.  I  216.*] 

Appeal  from  District  Court,  Adams  Coun- 
ty; H.  M.  Towner,  Judge. 

Action  for  damages  resulted  In  Judgment 
as  prayed.  The  defendant  appeals.  Af- 
flrmed. 

M.  B.  Brant,  County  Atty..  W.  E.  Miller, 
and  Maxwell  &  Maxwell,  for  appellant  W. 
M.  Jackson  and  Meyerhoff  &  Gibson,  for 
appellee. 

LADD,  J.  While  driving  over  what  is 
known  as  the  Dennis  bridge  In  Taylor  coun- 
ty, June  5,  1907,  that  structure  collapsed, 
and  plaintlflT  with  his  team  was  precipitated 
to  the  bed  of  the  creek  below,  a  distance  of 
about  16  feet  The  verdict  fixed  the  dam- 
ages resulting  from  the  injuries  received  at 
$0,000,  and  this  is  said  to  be  excessive. 
Plaintiff  fell  some  feet  away  from  the  team, 
and  immedlaitely  Undertook  to  let  them  loose 
and  called  for  help.  He  did  not  suppose  him- 
self much  hurt,  and  rode  home  in  a  neigh- 
bor's buggy.  But  he  did  not  sleep  well 
that  night,  and  in  the  morning  a  physician 
was  called.  He  was  confined  to  the  house 
for  about  two  weeks,  and  during  that  time 
suffered  a  great  deal  of  pain,  especially  In 
the  side  and  back.  He  has  been  unable  to 
perform  manual  labor  since,  though  he  has 
dealt  In  stock  to  some  extent,  as  he  did  pre- 
vious to  the  accident.  While  somewhat 
Improved  at  the  time  of  the  trial,  some 
eight  months  after  the  accident,  his  apx>etlte 
was  poor,  he  did  not  sleep  well,  and  the  con- 
dition of  his  knee  was  such  as  to  interfere 
with  locomotion,  and  pained  him  when  rid- 
ing in  a  buggy.  Blood  was  discharged  with 
urine  for  about  a  week  after  the  injury,  and 
one  of  the  physicians  who  examined  him 
testified  that  owing  to  the  condition  of  his 
kidney,  pus  still  appeared  in  hts  urine  in 
varying  quantities.  He  has  suffered  con- 
stant pain  in  the  region  of  the  kidneys,  and 
is  compelled  to  arise  several  times  during 
the  night  to  urinate.  A  large  space  on  his 
side  was  sore  and  so  continues.  He  has 
trouble  with  his  stomach,  and  the  knee 
grates,  and  sometimes  be  is  able  to  use  bis 
knee  with  comparative  freedom  from  pain, 
but  when  the  knee  Joint  grates,  he  is  unable 
to  bend  it. 


*l-'or  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Iowa) 


OBEENWAT  t.  TAYLOR  COUNTY. 


945 


The  physldan  who  called  testified  that 
apon  examination  he  found  a  great  deal  of 
tenderness  over  defendant's  body,  especially 
all  the  laiger  muscles;  that  on  the  right 
leg  bdow  the  knee  was  a  bruise;  that  on 
the  left  side  below  the  occipital  arch  of  the 
ribs  he  found  a  place  which  would  give  way 
readily,  and  concluded  that  the  cartilage  of 
the  rilM  was  torn  loose;  that  there  was  no 
lesion  at  the  Icnee.  The  swelling  of  the 
knee  has  disappeared,  but  a  squeaking  or 
crepitus  has  become  marked,  and  the  physi- 
cian thought  that  the  breaking  of  the  carti- 
lage or  breaking  of  the  bone  under  the  Icnee- 
cap  might  account  for  this.  An  examination 
was  made  with  the  X-ray  machine  and  both 
he  and  another  physician  observed  what 
looked  to  be  an  enlargement  of  the  spleen. 
They  also  observed  that  the  upper  part  of 
the  patella  was  downward  farther  on  one 
side  than  on  the  other,  and  that  the  muscles 
were  pushed  upwards,  and  that  the  lower 
end  of  the  femar  was  enlarged.  The  doctor 
first  mentioned  was  of  the  opinion  that 
plaintiff  had  suffered  much  pain,  but  was 
unable  to  say  that  the  injuries  would  prove 
permanent  His  temperature  had  continued 
from  1%  to  2  degrees  higher  than  normal. 
The  second  physician  thought  he  observed 
a  swelling  below  the  kneecap  which  was 
very  tender,  the  grating  of  the  knee,  and 
thought  this  would  interfere  with  locomo- 
tion. Both  considered  the  injury  to  the  knee 
permanent,  but  thought  it  might  be  improved 
by  an  operation.  The  plaintiff  was  examined 
by  still  another  physician  at  the  Cottage 
Hospital  in  Creston.  He  testified  that  the 
stomach  was  moved  over  to  the  right  more 
than  It  should  be;  that  he  bad  a  kidney  that 
was  producing  pus  in  the  urine  In  varying 
amounts ;  that  he  attempted  to  wash  out  the 
stomach  with  a  tube,  but  that  the  biood 
flowed  so  copiously  that  he  concluded  it 
wise  to  desist;  that  there  was  an  exaggerat- 
ed reflex  in  the  right  kidney ;  that  the  patel- 
la was  inclined  to  stick  forward,  and  then 
Jump  up  again  when  pressed  downward, 
and  that  there  was  a  pronounced  grating 
sound  in  the  Joint;  that  the  X-ray  picture 
indicated  a  displacement  of  the  semilunar 
cartilage  that  ought  to  stay  at  one  place; 
that  it  would  float  around  and  then  stop; 
that  a  second  examination  confirmed  what 
he  had  discovered  at  the  first  He  was  of 
opinion  that  possibly  a  piece  of  fiber  or 
cartilage  bad  become  detached  in  the  knee 
Joint  so  as  to  move  from  one  place  to  an- 
other, and  that  If  so,  a  surgical  operation 
would  relieve  him.  He  thought  the  condi- 
tion of  the  kidneys  a  menace,  but  that  it 
might  not  be  permanent.  On  the  other 
hand,  three  physicians  who  examined  the 
plaintiff  in  behalf  of  the  county  were  able 
to  discover  no  Injury  to  the  Imee  nor  to  bis 
side,  and  upon  examination  of  the  urine 
found  it  to  contain  no  pus.  This  is  all  the 
evidence  bearing  on  plalntUTs  condition, 
save  some  testimony  that  he  appeared  hag- 
122  N.W.-60 


gard,  and  was  unable  to  perform  manual 
labor.  He  was  a  farmer,  and  sometimes 
bought  and  sold  stock.  He  had  continued  In 
the  latter  business,  but  had  experienced 
some  difficulty  in  getting  about,  making  use 
of  a  cane,  and  often  being  compelled  to  get 
out  of  his  buggy  and  walk  owing  to  pain 
in  his  knee.  The  Injury  to  the  knee  was 
permanent,  though  the  doctors  tmited  In 
the  opinion  that  its  condition  would  be  im- 
proved by  an  operation.  All  seemed  to 
think  that  other  conditions  would  be  reme- 
died by  treatment  No  claim  was  made  for 
future  pain,  and  the  expenses  for  treatment 
and  medicine  have  not  exceeded  $180. 
The  Jury  might  have  found  him  to  have  suf- 
fered pain,  and  to  have  been  injured  as  tes- 
tified to  by  plaintiff's  witnesses,  and,  having 
so  found  we  are  not  inclined  to  Interfere 
with  the  verdict 

2.  The  attending  physician  who  treated 
plaintiff  up  to  within  three  weeks  prior  to 
the  triar  was  asked,  "What  do  you  say  as 
to  whether  be  has  suffered,  during  the  time 
since  this  Injury,  a  great  deal  of  pain?" 
Over  objection  the  witness  answered  in  the 
affirmative.  This  was  equivalent  to  inquir- 
ing whether  the  Injuries  were  of  such  a 
character  as  would  be  likely  to  cause  pain, 
and  was  competent  evidence.  In  McDonald 
V.  Railway,  88  Iowa,  345,  55  N.  W.  102,  evi- 
dence of  the  physicians  that  the  injured 
person'  seemed  to  suffer  pain  was  held  ad- 
missible. In  Rosevelt  v.  Railway  (Super. 
Ot)  13  N.  Y.  Supp.  598,  affirmed  hi  188  N. 
Y.  537,  SO  N.  R  1148,  the  court  ruled  that 
the  physician  might  testify  that  the  plain- 
tiff suffered  pain  as  did  another  court  In  C, 
B.  &  Q.  Ry.  V.  Martin,  112  111.  16.  In  Hol- 
man  v.  Railway,  114  Mich.  208,  72  N.  W. 
202,  the  physician  was  allowed  to  give  his 
opinion  as  to  whether  the  Injured  person 
was  still  suffering  pain,  and  this  was  ap- 
proved. Some  courts  have  approved  of 
like  testimony  by  nonexperts.  See  Hall  v. 
City  of  Austin,  73  Minn.  134,  75  N.  W.  1121; 
Werner  v.  Railway,  105  Wis.  300,  81  N.  W. 
416.  We  think  it  entirely  competent  for  the 
physician  to  say  whether  In  his  Judgment 
the  Injuries  of  a  person  are  such  as  would 
be  likely  to  produce  pain. 

8.  A  witness  named  Johnson,  after  testi- 
fying that  he  had  had  a  great  deal  of  ex- 
perience In  the  construction  and  repair  of 
bridges,  was  asked.  In  substance,  to  explain 
the  method  by  which  he  would  examine  a 
bridge  to  ascertain  the  condition  of  the  tim- 
bers therein.  Objection  that  this  was  not  a 
matter  for  expert  testimony  was  overruled, 
and  rightly  so.  The  information  sought 
was  not  familiar  knowledge  to  the  ordinary 
Juryman,  and  the  evidence  elicited  was 
competent  as  bearing  on  the  Issues  as  to 
whether  the  county  was  negligent  in  not 
discovering  and  repairing  the  defective  tim- 
ber in  the  bridge  before  the  accident 

4.  After  stating  the  issue  and  with  preci- 
sion precisely  what  plaintiff  must  prove  In 


Digitized  by  VjOOQ  l€ 


946 


122  NORTHWESTBRN  REPOBlua 


(Iowa 


order  to  recorer,  and  also  the  duty  of  th« 
county  with  respect  to  keeping  bridges  in 
repair,  the  court  said:  "A  failure  on  the  part 
of  any  county  to  keep  any  of  its  bridges  in 
repair  constitutea  negligence  on  Its  part  for 
which  It  may  be  held  liable  for  damages. 
Some  observations  bearing  upon  this  issue, 
as  particularly  applicable  to  the  case  at  bar, 
are  here  submitted  for  your  consideration." 
The  last  sentence  Is  criticised  on  the  ground 
that  what  is  said  in  the  two  Instructions  fol- 
lowing would  be  construed  by  the  Jury  merely 
as  suggestions,  and  not  as  binding  Instruc- 
tions. They  defined  with  some  degree  of  par^ 
ticularity  the  obligations  of  the  county  and 
Us  duty  with  respect  to  the  construction,  re- 
pair, and  Inspection  of  bridges,  and  clearly 
indicated  under  what  circumstances  it  would 
be  charged  with  notice  of  the  defect  in  a 
bridge,  and  within  what  time  it  was  required 
to  repair  the  same.  Though  allusion  to  these 
Instructions  as  "some  observations"  la  not  to 
be  commended,  the  Jury,  because  of  their 
character,  could  not  have  been  misled  there- 
by Into  belittling  their  importance,  or  into 
construing  them  otherwise  than  directly  ap- 
plicable to  the  Issues,  and  as  directing  them 
with  req)ect  to  the  law  of  the  case.  No 
prejudice  resulted  from  such  characterization 
of  the  instructions. 

6.  In  the  fifth  paragraph  of  the  charge  the 
court  recited  that  the  bridge  had  been  erect- 
ed for  many  years,  and  said  that  this  might 
be  taken  into  consideration  in  determining 
the  amount  of  care  the  board  of  supervisors 
were  bound  to  exercise  in  discovering  defects. 
It  Is  said  this  was  erroneous  because  the 
bridge  had  been  reconstructed  within  five 
years.  It  was  erected  SO  years  ago,  had  been 
rebuilt  15  years  later,  and  5  years  previous 
to  the  trial  all  but  a  small  portion  of  it  had 
been  replaced  with  new  timber.  The  par- 
ticular "batter  brace"  which  was  rotten  in- 
side, the  breaking  of  which  caused  the  ac- 
cident, had  not  been  replaced.  It  was  prop- 
er for  the  Jury  to  take  Into  consideration  the 
history  of  the  structure  in  determining  the 
care  defendant  was  bound  to  exercise  in  dis- 
covering defects  therein.  Even  though  re- 
built 5  years  previous  to  the  trial,  some  of 
the  old  material  was  used,  so  that  the  fact 
that  this  had  been  in  use  many  years  was  an 
important  circumstance  bearing  on  the  de- 
gree of  care  exacted.  The  exception  is  not 
well  taken. 

6.  In  the  seventh  paragraph  of  the  charge, 
the  court  Instructed  the  Jury  that:  "If  you 
find  plaintifT  was  Injured  by  reason  of  the 
defendant's  negligence,  and  without  negli- 
gence on  his  part  which  contributed  to  his 
Injury,  you  may  then  proceed  to  a  considera- 
tion of  the  plalntifTs  damages.  In  fixing  such 
amount  you  should  allow  him  such  sum  as 
will  fairly  and  reasonably  compensate  him 
for  the  injury  received.  In  so  doing  yon  may 
take  Into  consideration  the  pain  and  sufTer- 
Ing  of  body  and  mind  incident  to  such  In- 


Jury;  the  Injury  to  the  knee,  and  tnterual 
injuries,  if  they  are  shown ;  his  expenses  In- 
curred for  medical  care  and  attendance  and 
medldne;  and.  If  you  find  such  Injury  con- 
tinuing and  permanent,  that  prior  to  such 
injury  he  was  capable  of  earning  wages  by 
manual  labor,  and  that  such  injury  has  In 
whole  or  in  part  Incapacitated  him  from  per- 
forming manual  labor,  then  such  diminished 
earning  capacity  may  be  taken  into  consid- 
eration In  estimating  plalntifTs  damages. 
And  In  this  connection  plaintUTs  expectancy 
of  life,  as  shown  by  mortality  tables,  may  be 
considered.  'But  In  this  connection  r^^rd 
should  be  had  to  the  probable  time  during 
such  expectancy  of  life  that  plaintiff  might 
be  expected  to  be  capable  of  pCTforming  man- 
ual labor  on  account  of  age  and  natural  In- 
firmities Incident  thereto.  And  if  the  Jury 
find  that  the  plalntilT  is  suffering  from  dis- 
eases or  infirmities  not  caused  by  the  acci- 
dent complained  of,  such  fact  should  not 
be  considered  to  the  enlargement  of  the  dam- 
ages allowed."  The  criticisms  of  the  In- 
struction are  (1)  that  the  diminution  of  earn- 
ing power,  resulting  from  the  injury.  Is  lim- 
ited to  that  at  manual  labor;  and  (2)  that  It 
does  not  limit  the  amount  to  be  awarded  to 
the  present  worth  of  loss  of  earnings  In  the 
future.  As  contended,  the  instruction  con- 
tains no  reference  to  the  possibility  of  earn- 
ing capacity  in  intellectual  or  business  pur- 
suits In  the  future  and  It  Is  true  that  when 
a  person  is  disabled  from  following  his  ordi- 
nary avocation,  especially  when  his  expect- 
ancy in  life  exceeds  80  years.  It  ought  not 
to  be  assumed,  in  estimating  the  damages  re- 
sulting from  such  disability,  that  he  will  en- 
gage in  no  other  pursuit,  nor  that,  if  unable 
to  do  manual  labor,  he  may  not  earn  mon- 
ey at  some  Intellectual  employment  Nor 
should  definite  proof  of  the  particular  oc- 
cupation for  which  he  may  be  suited  be  ex- 
acted. Ordinarily  the  trial  occurs  shortly 
after  the  injury,  and  before  recovery  such 
as  may  be  possible  has  been  effected.  It 
usually  Is  too  soon  for  the  serious  contem- 
plation of  another  avocation,  and  neither  the 
Injured  person  nor  the  wrongdoer  is  able  to 
make  a  showing  at  all  satisfactory  of  earn- 
ing capacity  in  a  pursuit  other  than  that 
previously  followed.  But.it  does  not  follow 
that  because  of  this  situation,  the  possibility 
of  earning  money  at  other  employments 
should  be  excluded  from  or  ignored  by  the 
Jury.  This  could  not  be  done  on  the  as^ 
sumption  that  one  Incapacitated  from  contin- 
uing in  his  former  avocation  will  thereafter 
lead  a  life  of  indolence.  In  the  Infinite  va- 
riety of  employments  In  this  life  there  Is 
something  for  every  one  to  do,  and,  even  In 
the  absence  of  evidence  pointing  out  an  avoca- 
tion suitable  to  one  of  impaired  capability, 
the  Jury  may,  and  should,  take  Into  account 
the  possibility  of  him  enj^iging  in  some  use- 
ful occupation.  In  other  words,  the  loss  of 
earning  capacity  or  power  generally,  rath- 


Digitized  by  VjOOQ  l€ 


Iowa) 


O'CONNOR  T.  CHIOAQO,  R.  L  A  P.  RY.  CO. 


947 


er  than  in  a  partlcnlac  aTocation,  la  that 
for  which  compensation  la  awarded.  O'Con- 
nor T.  Railway  (decided  at  the  present  ses- 
sion) Infra. 

Had  thejnry  been  restricted  to  the  consid- 
eration of  the  decrease  of  earning  capacity  at 
manaal  latmr,  the  Instmctlon  must  hare 
been  refnrded  as  erroneous.  Laird  ▼.  Rail- 
way, 100  Iowa,  388.  69  N.  W.  414;  Trott  v. 
Railway,  115  Iowa.  87,  86  N.  W.  38,  87  N.  W. 
722.  But  It  goes  no  farther  than  to  say  that 
"such  diminished  earning  capacity  may  be 
taken  Into  consideration  in  estimating  plaln- 
tifTs  damages."  Surely  the  circumstance 
that  his  ability  to  pursue  his  usual  aroca- 
tlon  had  been  Impaired  should  be  considered. 
Presumably  be  was  engaged  In  a  pursuit  for 
which  he  was  best  suited,  and  if  the  Injury 
merely  decreased  bis  earning  capacity  there- 
in, or  wholly  disabled  him  so  that  he  must 
engage  In  another  employment  for  which  he 
was  not  so  well  adapted,  he  was  damaged. 
Moreover,  on  defendant's  objection,  the  on- 
ly evidence  of  his  former  earning  capacity  ad- 
duced was  that  at  manual  labor,  though 
counsel  seem  to  have  construed  the  ruling  of 
the  court  too  narrowly  (Mitchell  t.  Railway, 
138  Iowa,  283.  114  N.  W.  622),  and  for  such 
labor  he  appears  to  have  been  wholly  dis- 
abled, but  continued  to  deal  in  stock.  There 
was  no  proof  concerning  tils  earnings  as  a 
stock  dealer.  So  that  the  Instruction  mere- 
ly directed  that  what  the  evidence  tended  to 
establish  might  be  considered.  The  next  to 
the  last  sentence  in  the  instruction  relates  to 
the  time  he  might  have  performed  manual 
labor  but  for  the  injury,  and  has  the  approval 
of  Bettis  V.  Railway,  131  Iowa,  46,  108  N.  W. 
103.  The  instruction  was  correct,  then,  as  far 
as  it  went,  and  it  may  be  conceded  that  the 
court  might  well  have  gone  farther,  and  di- 
rected the  attention  of  the  Jury  to  the  pos- 
sibility of  the  plaintiff  earning  money  in  some 
other  avocation.  But  such  possibility  was  a 
matter  of  common  knowledge,  and  as  the 
Jurors  were  cautioned  that  be  was  to  be  com- 
pensated for  the  injury  suffered  only,  it 
ought  not  to  t>e  assumed  that  they  ignored 
what  every  one  else  knows;  1.  e.,  that,  even 
though  disabled  from  doing  manual  labor,  the 
door  to  all  other  avocations  in  life  had  been 
closed  to  him.  Because  of  this  being  com- 
mon knowledge,  omission  to  especially  direct 
the  Jury's  attention  thereto  in  the  absence  of 
a  request  cannot  be  denounced  as  error.  See 
Bamett  v.  Schlapka,  208  111.  426,  70  N.  B. 
248;  Ft  Worth  ft  D.  O.  Ry.  v.  Robert- 
son (Tex.)  16  S.  W.  1093,  14  li.  R.  A.  781. 

Nor  was  there  error  in  omitting  specific  in- 
structions with  respect  to  the  preseut  worth 
of  loss  of  future  earnings.  None  was  re- 
quested, and  a  refusal  appears  to  be  neces- 
sary as  a  basis  of  predicating  error  on  such 
omission  where  estimation  at  present  worth 
Is  not  obviated  by  the  language  of  the  In- 


structions given.  Hutcheis  v.  Ry.,  128  loxja, 
279,  103  N.  W.  779.  The  Jury  was  told  to 
allow  plaintiff  such  sum  "as  will  fairly  com- 
pensate him  for  the  injury  received"  and  "the 
general  basis  on  which  the  right  to  recover 
is  founded."  This  had  reference  to  the  pres- 
ent recovery  for  future  loss  of  earnings,  as 
well  as  for  other  elements  of  damages  suf- 
fered, and  it  may  well  be  assumed  that  the 
jurors  appreciated,  without  explicit  explana- 
tion, that  they  were  to  estimate  the  present 
value  of  future  earnings  lost  to  the  injured 
person.  Such  was  the  ruling  of  this  court 
in  Clark  v.  City  of  Cedar  Rapids,  129  low*, 
358,  362,  105  N.  W,  661,  in  approving  like  de- 
cisions in  Gregory  ▼.  Railway,  126  Iowa,  2^0, 
101  N.  W.  761,  and  Hutchete  ▼.  Railway,  128 
Iowa,  279,  103  N.  W.  779.  See,  also,  Spauld- 
Ing  V.  Railway,  98  Iowa,  219,  67  N.  W.  227, 
and  Lowe  v.  Railway,  89  Iowa,  420,  56  N.  W. 
519.  Attention  of  the  jury,  however,  may 
well  be  directed  to  their  duty  to  allow  onjy 
the  present  worth  of  future  earnings  lost. be- 
cause of  the  injury,  and  this  was  all  Intended 
to  be  held  in  Williams  v.  Clarke  County 
aowa)  120  N.  W.  806. 
Affirmed. 


O'CONNOR  T.  CHICAGO,  R.  L  ft  P.  RY.  CO. 
(Supreme  Court  of  Iowa.    Oct.  26,  1909'.) 

1.  Daixaoes  (8  216*)— Personal  Injuries— In- 

STRDCnONS— Loss  OF  FUTDBK  EARNINGS. 

In  an  action  for  personal  injuries,  an  in- 
stmction,  limiting  the  consideration  of  loss  of 
future  earning  capacity  to  employment  in  his 
occupation  previous  to  the  injury,  was  errone- 
ous, altiiongh  there  was  no  evidence  as  to  plain- 
tiFs  ability  to  pursue  his  vocation  or  earn  mon- 
ey In  any  other. 

[Ed.    Note.— For   other  cases,   see   Damages, 
Dec.  Dig.  {  216.*] 

2.  Removal  of  Causes  (|  43*)— Grounds— Di- 
TEHSiTT  OF  Citizenship. 

To  render  an  action  removable  to  the  fed- 
eral court,  on  the  grounds  of  diversity  of  citizen- 
ship, such  diversity  must  exist  both  at  the  be- 
ginning of  the  suit,  and  when  the  petition  for 
removal  is  filed. 

[Ed.  Note.— For  other  cases,  see  Removal  of 
Causes,  Cent.  Dig.  f  87 ;   Dec.  Dig.  §  43.*] 

3.  Plkadino  ((  8*)  —  Petition  —  Legal  Con- 
clusion. 

To  aver  in  a  petition  for  the  removal  of  an 
action  to  the  federal  court  that  the  controveisy 
is  between  citizens  of  different  states  is  but  a 
conclusion,  whether  it  precedes  specific  allega- 
tions of  fact  by  way  of  explanation,  or  followi 
them  as  an  inference  to  be  drawn  therefrom. 

[Ed.  Note.— For  other  cases,  see  Pleading,  Dec. 
Dig.  §  8.*] 

4.  Removal  of  Causes  ({  86*)— Petition— Al- 
legation OF  Citizenship. 

A  petition  for  the  removal  of  an  action  to 
the  federal  court,  which  avers  that  "the  con- 
troversy in  said  action  is  between  citizens  of  dif- 
ferent states" ;  that  defendant  "at  the  time  of 
the  commencement  was,  and  still  is,  a  citi^n 
and  resident  *  *  *  of  Illinois ;  that  plafntiff 
was  then,  and  still  is,  a  resident  *  *  *  of 
Iowa"— is  insufficient  for  failing  to  allege  the 


•For  otber  cases  see  same  topic  and  section  NUMBER  In  Dec.  *  Am.  Diss.  1907  to  date,  ft  Reporter  Indnaa 


Digitized  by 


Google 


948 


122  NOBTHWESTEBN  REPOBTEB. 


dowa 


citizenship  «t  xhlwliitlff  at  tlie  commencement  of 
the  action. 

[Bd.  Note.— For  other  cases,  see  Removal  of 
Canses,  Cent  Dig.  |i  17^172-174;  Dec  Dig. 
f  88.*] 

Appeal  from  District  Court,  Scott  Coun- 
ty; J.  W.  Bollinger,  Judge. 

Action  for  damages  resulted  In  a  verdict 
and  Judgment  for  plaintiff.  The  defendant 
appeals.    Reversed  on  rehearing. 

For  former  opinion,  see  117  N.  W.  979. 

Carroll  Wright,  J.  L.  Parrlsh,  and  Cook  & 
Dodge,  for  appellant.  Iiene  A;  Waterman,  for 
appellee. 

LADD,  J.  Through  negligence  of  an  em- 
ploy6  of  defendant,  as  was  conceded  In  the 
answer,  a  baggage  car  In  which  plaintiff  was 
engaged  at  his  usual  avocation  was  overturn- 
ed, and  he  precipitated  nearly  the  entire 
length  of  the  car  on  his  head,  and  articles  In 
the  car  fell  on  him.  The  testimony  of  phy- 
sicians as  to  his  condition  as  a  result  of  the 
injuries  is  in  sharp  conflict  If  the  witness- 
es called  by  plaintiff  are  to  be  relied  on,  In 
connection'  with  the  evidence  of  himself  and 
wife,  he  is  In  a  most  deplorable  condition. 
If  the  physicians  of  defendant  are  right  in 
the  opinions  they  have  expressed,  little  else 
tlian  hysteria  ailed  him. 

1.  The  only  matter  submitted  was  the  as- 
sessment of  damages,  and  with  reference 
thereto  the  Jury  was  told  that  plaintiff  was 
entitled  to  recover  damages  re«iBonably  and 
naturally  consequent  of  the  Injury  caused  by 
the  overturning  of  the  car,  to  consider  all 
the  evidence  bearing  thereon,  and  was  far- 
ther instructed  as  follows:  "What  is  the 
nature  and  extent  of  the  injuries  resulting 
to  the  plaintiff  as.  the  reasonable  and  natural 
consequence  of  the  overturning  of  the  car? 
What  injuries  has  he  thus  far  sustained, 
and  to  what  extent  Is  it  reasonably  certain 
that  they  will  continue  in  the  future?  What 
is  the  nature  and  extent  of  the  pain,  mental 
and  physical,  which  he  has  endured,  or  will 
hereafter  endure,  If  you  so  find?  To  what 
extent  has  he  been  disabled  or  Incapacitated 
from  pursuing  his  Calling  in  life?  These  are 
questions  you  must  determine.  When  you 
have  carefully  and  fairly  considered  these 
matters.  It  is  then  for  you  to  decide  what 
will  be  the  amount  of  your  verdict."  The  in- 
struction is  criticized  in  that  it  limited  con- 
sideration of  loss  In  future  earning  capacity 
to  employment  In  the  occupation  of  plain- 
tiff previous  to  the  Injury.  In  confining  the 
Jury  to  the  determination  of  the  question 
"To  what  extent  has  he  been  disabled  or  in- 
capacitated from  pursuing  his  calling  In 
life?"  in  connection  with  those  enumerated 
besides,  any  other  Inquiry  was  excluded,  and 
there  Is  no  escape  from  the  construction  of 
the  clause  as  stated.  Counsel  for  appellee, 
by  dissecting  and  reconstructing  It,  seem  to 
have  convinced  themselves  otherwise,  but  the 


Jurors,  who  cannot  be  assumed  to  have  been 
linguists  or  logicians,  must  have  understood 
what  the  language  indicates,  namely,  that  im- 
pairment in  capacity  to  follow  tbo  vocation 
he  had  been  engaged  In  for  23  years  was  the 
element  of  damages  to  be  taken  into  account 
by  them,  rather  than  Impairment  of  his  pow- 
er generally  to  earn  money.  Because  no  evi- 
dence of  his  ability  subsequent  to  the  injury 
to  engage  In  some  other  occupation  was  ad- 
duced, it  was  thought  on  the  former  hearing 
that  the  instruction  might  be  sustained.  Up- 
on reconsideration,  we  are  persuaded  that 
this  is  not  so.  Up  to  the  time  of  the  trial 
he  had  been  unable  to  engage  In  any  employ- 
ment, but  this  did  not  preclude  the  Jury  from 
concluding  that,  though  he  might  not  be  able 
to  act  as  train  baggageman  and  express  mes- 
senger, he  might  so  far  recover  as  to  earn 
money  at  any  of  many  other  avocations  in 
life.  He  was  but  44  years  of  age  at  the  time 
of  the  injury,  and  though  the  evidence  in  his 
behalf  Indicated  total  disability,  that  Intro- 
duced by  defendant,  while  recognizing  the 
serious  nature  of  his  condition,  pointed  to 
substantial  improvement,  if  not  complete  re- 
covery. He  was  in  possession  of  his  facul- 
ties, though  his  mind  may  not  have  been 
quite  80  dear  as  formerly,  and  the  Jury  was 
not  bound  to  accept  absolutely  the  theory  of 
the  one  party  or  of  the  other  as  to  his  condi- 
tion, but  might  well  have  concluded  that, 
though  his  Injuries  were  grievous  and  per- 
manent, his  condition  unconsciously  was  in- 
fluenced by  introspection  and  by  the  pending 
litigation,  and  that  with  its  flnal  disposition 
and  change  in  environment  substantial  im- 
provement, if  not  restoration  of  his  nervous 
system,  were  not  only  possible,  but  probable. 
If  so,  then  the  probability  of  his  earning 
money  in  the  future  in  some  other  calling 
should  not  have  been  exdnded  from  consid- 
eration. 

In  Trott  V.  Railway,  115  Iowa,  80,  86  N. 
W.  S3,  87  N.  W.  722,  an  instruction  limiting 
"the  ^tent  of  plaintUTs  earning  power  in  the 
future  to  that  of  a  laboring  man"  was  held  to 
be  erroneous,  on  the  ground  that  "he  might 
be  totally  disabled  from  performing  manual 
labor,  yet  be  able  to  earn  In  other  avoca- 
tions." A  like  conclusion  was  reached  in 
Laird  V.  Railway,  100  Iowa,  886,  69  N.  W. 
414,  where  the  Instruction  was  to  "allow  him 
only  such  sum  as  will  compensate  him  for 
his  loss  in  being  disabled  from  pnrsal|ig  his 
usual  business  or  performing  other  manual 
labor,"  and  this  was  construed  to  exdudo 
consideration  of  ability  to  earn  money  other- 
wise than  by  manual  labor  as  tending  to 
lessen  the  damages  to  be  awarded  and  it  was 
adjudged  erroneous.  In  Bettis  v.  Railway, 
131  Iowa,  46,  108  N.  W.  103,  the  instruction 
was  approved  because  the  reference  to  man- 
ual labor  related  to  what  he  would  have  done 
but  for  his  injuries,  and  nothing  was  said  as 
to  the  character  of  labor  which  he  might  aft- 


•For  other  cues  see  same  topic  and  lectlon  NUMBER  in  Dec.  *  Am.  Dlgi.  1907  to  data,  *  Reporter  Indaxea 


Digitized  by  VjOOQ  l€ 


Iowa) 


©•CONNOE  ▼.  OHIOAQO,  R.  1.  &  P.  RY.  00. 


949 


«rward  perform.  It  is  not  tbe  disabling  to  fol- 
low any  particular  Tocation  for  which  com- 
pensation Is  awarded,  for  this  might  do  no 
more  than  Interfere  with  the  taste  or  ambi- 
tion to  engage  In  some  particular  pursuit, 
though  this  may  be  an  element  of  damages, 
but  It  Is  tbe  Impairment  of  tbe  capacity  to 
earn  money  generally,  regardless  of  tbe  kind 
of  occupation,  tbe  lessening  of  the  earning 
capacity,  which  is  to  be  taken  into  account 
This  appears  from  the  decisions  cited  as  well 
as  from  Morris  v.  Railway,  45  Iowa,  29, 
Cotant  V.  Railway,  125  Iowa,  46,  99  N.  W. 
115,  69  L.  R.  A.  982,  and  Mitchell  v.  Ry.,  138 
Iowa,  283,  114  N.  W.  622.  The  same  rule 
preTails  elsewhere.  McCoy  t.  Railway,  88 
Wis.  66,  59  N.  W.  453 ;  Houston  &  T.  C.  R. 
Co.  V.  McCullough,  22  Tex.  Civ.  App.  208,  55 
S.  W.  392 ;  Sioux  City  &  P.  R.  Co.  v.  Smith, 
22  Neb.  775,  36  N.  W.  289.  The  injured  party 
may  not  have  been  receiving  full  compensa- 
tion for  such  earning  power  prior  to  the  la- 
Jury,  or  he  may  bare  been  receiving  com- 
pensation in  excess  thereof  subsequent  to. 
such  Injury,  but  tbe  measure  to  be  applied 
is  not  the  difference  in  compensation  receiv- 
ed, but  in  the  value  of  tbe  power  to  earn. 
Central  Mfg.  Co.  v.  Cotton,  108  Tenn.  63,  66 
S.  W.  403;  San  Antonio  &  A.  P.  Ry.  Co.  v. 
Tumey,  33  Tex.  Civ.  App.  626,  78  S.  W.  258. 
The  rule  is  accurately  stated  In  6  Thomp. 
Comp.  Neg.  f  7294:  "The  Jury,  looking  to 
all  the  dreumstances  of  the  case — ^hls  for* 
mer  occupation  and  its  nature,  the  money 
or  other  benefit  derived  therefrom,  and  the 
extent  to  which  the  capacity  to  follow  that  or 
any  other  calling  for  which  he  Is  fitted  is  Im- 
paired by  the  wrong  of  the  defendant — 
must  assess  the  damages  at  a  sum  which 
will  compensate  him  for  the  injury  suffered." 
It  was  not  essential  that  speculative  evidence 
be  introduced  by  either  party  as  to  what  oo- 
cnpatlons  might  prove  suitable  or  congenial 
to  plaintiff  in  event  of  the  future  improve- 
ment In  his  condition.  Jurors  are  presumed 
to  be  familiar  with  the  common  affairs  of 
life,  and  therefrom,  in  connection  with  a  de- 
termination of  the  probable  future  condition 
of  plaintiff,  might  In  tbe  exercise  of  their 
Judgment  estimate  somewhat  of  the  probabil- 
ities of  the  future.  Who  can  say  what  any 
one  will  or  can  do  on  the  morrow?  Presum- 
ably there  will  be  no  change.  But  plaintUTs 
course  of  employment  had  been  Interrupted, 
and  there  was  no  ground  for  supposing  that 
he  will  take  up  the  thread  of  life's  work 
where  severed  by  the  accident,  >  and  the  in- 
quiry was  not  whether  he  would  be  able  to 
enter  into  the  employment  of  tbe  express 
company  again,  but  whether  he  will  be  able 
to  engage  In  any  vocation  hereafter  whereby 
he  will  be  able  to  earn  a  remuneration.  If 
BO,  this  was  proper  to  be  taken  Into  consid- 
eration by  the  Jury  as  tending  to  lessen  the 
amount  of  damages  to  be  allowed,  and  in  ex- 
cluding it  from  such  consideration  there  was 
prejudicial  error.     See  Greenway  v.  Taylor 


County  (decided  at  the  present  session)  122 
N.  W.  943. 

2.  Subsequent  to  the  beginning  of  the  ac- 
tion, and  within  the  statutory  period,  de- 
fendant filed  a  petition  for  removal  to  the 
United  States  Circuit  Court  This  was  ac- 
companied by  a  sufildent  bond,  and,  after  as- 
serting tliat  the  amount  in  controversy  ex- 
ceeded $2,000,  stated:  "That  the  controversr 
In  said  action  Is  between  citizens  of  different 
states,  and  that  your  petitioner  at  the  time 
of  the  commencement  was,  and  still  Is,  a 
resident  of  the  state  of  Illinois;  that  tbe 
plaintiff  was  then,  and  still  Is,  a  resident  of 
the  state  of  Iowa;  that  your  petitioner  at 
the  time  of  the  commencement  of  this  action 
was,  and  still  is,  a  corporation  organized 
and  existing  under  and  created  by  the  laws 
of  the  state  of  Illinois,  and  at  said  time  and 
now  has  Its  citizenship,  residence,  habitat, 
and  principal  place  of  business  in  the  city  of 
Chicago  and  state  of  Illinois,  and  was  and 
Is  a  nonresident  of  the  state  of  Iowa." 
Thereupon  plaintiff  filed  a  resistance,  in 
which  he  alleged  that  defendant  had  been 
Incorporated  under  the  laws  of  Iowa,  and 
was  at  the  commencement  of  the  action,  and 
still  continued  to  t>e,  a  citizen  of  Iowa.  To 
this  was  attached  the  articles  of  incorpora- 
tion of  the  Chicago,  Rock  Island  &  Pacific 
Railroad  Company,  an  Iowa  corporation,  and 
articles  of  consolidation  with  the  Chicago, 
Rock  Island  Railroad  Company,  an  Illinois 
corporation,  all  recorded  in  Scott  county. 
The  court  denied  the  petition,  and  rightly. 
To  render  an  action  removable  to  the  federal 
court  on  the  ground  alleged  diversity  of  citi- 
zenship must  be  made  to  appear  to  have  ex- 
isted, both  at  tbe  beginning  of  the  suit,  and 
when  the  petition  was  filed.  Oibson  v.  Bruce, 
108  U.  S.  561,  2  Sup.  Ct  873,  27  L.  Ed.  825. 
It  Is  not  enough  to  say  generally  that  plain- 
tiff or  defendant  is  not  a  citizen  of  a  particu- 
lar state,  or  not  of  the  state  In  which  the 
suit  is  pending.  See  Cameron  v.  Hodges,  127 
n.  S.  322,  8  Sup.  Ct  1154.  82  L.  Ed.  182, 
where  the  court  remarked:  "This  court  has 
always  been  very  particular  in  requiring  a 
distinct  statement  of  the  citizenship  of  the 
parties,  and  of  the  particular  state  in  which 
it  is  claimed,  in  order  to  sustain  the  Juris- 
diction of  those  courts."  To  aver  that  the 
controversy  is  between  citizens  of  different 
states  is  but  a  conclusion,  whether  It  pre- 
cedes specific  allegations  of  facts  by  way  of 
explanation,  or  follows  them  as  an  Inference 
to  be  drawn  therefrom.  Neel  v.  Penn  Co.,  157 
n.  S.  153,  15  Sup.  Ct  589,  39  L.  Ed.  654; 
Continental  Life  Ins.  Co.  v.  Rhoads,  119  U.  S. 
237,  7  Sup.  Ct  193,  30  L.  Ed.  380 ;  Grace  v. 
American  Central  Ins.  Co.,  109  U.  S.  278,  a 
Sup.  Ct.  207,  27  h.  Ed.  932.  In  the  latter 
case  the  rule  is  quoted  with  approval  from 
previous  decisions  that,  "where  Jurisdiction 
depends  upon  citizenship  of  the  parties,  such 
citizenship,  or  the  facts  which  in  legal  in- 
tendment constitute  it,  should  be  distinctly- 


Digitized  by  VjOOQ  l€ 


950 


122  NORTHWESTERN  BEFDETBB. 


(Iowa 


and  positively  averred  In  tbe  pleadings,  or 
they  should  appear  affirmatively,  and  with 
equal  distinctness,  in  other  parts  of  the 
record."  And  further  on  It  Is  said  that  an 
allegation  that  the  controversy  was  betweoi 
citizens  of  different  states  was  bat  the  plead- 
erls  unauthorized  condnslon  from  facts  pre- 
viously stated.  It  cannot  be  Inferred  from 
an  averment  that  one  is  a  resident  that  he 
also  is  a  citizen,  for  be  then  may  be  a  citizen 
of  a  state  other  than  that  of  his  residence. 
In  Continental  Life  Ins.  Co.  t.  Rhoads,  110 
U.  S'.  237,  7  Sup.  Ct  lOa  SO  Ij.  Ed.  880.  the 
conrt  said  that:  "Jurisdiction  must  appear 
positively.  It  is  not  enough  that  it  may  be 
inferred  argumentatively."  In  the  petition 
under  consideration  the  place  of  plaintiff's 
residence  is  averred  to  be  in  Iowa,  but  from 
this  citizenship  of  tbe  state  cannot  be  in- 
ferred. Eveu  if  tbe  conclusion  of  the  plead- 
er might  be  considered,  this  merely  states 
that  tbe  controversy  is  "between  citizens  of 
different  states."  This  does  not  indicate  of 
what  state  plaintiff  was  then  a  citizen,  nor. 
even  if  he  were  then  a  citizen  of  a  state 
other  than  that  at  defendant,  that  he  was 
such  at  tbe  commencement  of  the  action. 
Ab  the  petition  for  removal  was  insufficient. 
in  that  it  failed  to  allege  of  what  state  plain- 
tiff was  a  citizen  at  tbe  commencement  of 
the  action,  we  have  no  occasion  to  revert  to 
other  questions  raised  in  argument,  but  see 
Wasley  v.  Railway  (C.  C.)  147  Fed.  608: 
Patch  V.  Wabash  Ry.,  207  U.  S.  277,  28  Sup. 
Ct  KO.  52  L.  Ed.  204. 
Reversed. 


SAWYEai  T.  OUVER.  District  Jndjte. 
(Supreme  Court  of  Iowa.     Oct.  28,  1000.) 

1.  INTOXICATIKO  lilQUOBS  (§  279*)  —  VIOLA- 
TION OF  INJDKCTION— OORTKMPT  PbOCBBD- 
ING8— BlVIDENCB. 

On  hearing  contempt  proceedings  on  an 
agreed  statement  of  facts  for  violation  of  an  in- 
junction restraining  accused  from  selling  liquor 
at  a  certain  place,  the  attention  of  the  court  is 
snfficientlr  directed  to  tbe  certified  copy  of  the 
decree  as  entered  of  record  and  attached  to  the 
information,  alUtough  it  is  not  introduced  In  ev- 
idence nor  referred  to  in  the  agreed  statement 
of  facts  except  by  reciting  that  the  coo  tempt 
was  alleged  to  have  been  committed  by  defend- 
ant in  a  certain  action  in  which  he  was  defend- 
ant, "in  which  it  is  alleged  an  injunction  was 
granted  on  tbe  31st  day  of  May,  1007,  against 
defendant." 

[Ed.  Note.— For  other  cases,  see  Intoxicating 
Liquors,  Dec.  Dig.  (  270.»1 

2L  iNTOXICATlUa  LIQUOBS  (|  270*)— IlMtTRO- 
TION— VlOLATIOW. 

A  decree,  enjoining  accused  from  unlawful- 
ly engHging  in  a  sale  of  or  keeping  for  sale  in- 
toxicating liquors  upon  premises  described,  is 
viols  ted  by  keeping  beer  in  tbe  basement  of  the 
premises  and  drawing  the  beer  in  the  room 
above  from  faucets  attached  to  pipes  leading 
down  to  the  beer  in  the  basement,  althoaen 
there  is  no  direct  commnnication  between  the 
basement  and  the  room  aliove,  and  it  was  neces- 
sary, in  order  to  attach  a  fresh  barrel  of  beer  to 


the  pipes  in  the  basement,  to  send  an  employ^ 
dovm  to  the  basement  by  an  outside  stairway, 
and  no  one  was  allowed  to  enter  the  basement 
except  employes,  and  they  were  not  sent  there 
except  when  it  was  necessary  to  attadi  the  pipes 
to  a  fresh  barreL 

[Bd.  Note.— For  other  cases,  see  Intoxieatinc 
Uquors,  Dec  Dig.  f  270.*] 

Certiorari  to  District  Conrt,  Woodborr 
County;   Jno.  F.  Oliver,  Judge. 

Tbe  information,  charging  Gibson  with 
contempt  of  court,  recited  that  In  an  action, 
entitled  "H.  H.  Sawyer  against  Sam  Gib- 
son," wherein  an  injunction  was  asked  en- 
joining the  latter  from  using  described 
premises  as  a  place  for  trafficking  in  In- 
toxicating liquors,  or  keeping  the  same  tar 
tbat  purpose,  was  pending  in  tbe  district 
court  of  Woodbury  county  May  31,  1907, 
and,  on  hearing,  a  decree  so  enjoining  de- 
fendant was  entered  of  record,  a  copy 
thereof  duly  certified  by  the  clerk  of  the 
court  being  attached  to  the  information,  and 
accused  him  of  having  sold  and  permitted 
tbe  sale  of  intoxicants  on  the  premises 
since.  The  accused  was  brought  before  the 
court,  issue  Joined,  and  the  cause  submit- 
ted on  an  agreed  statement  of  facts,  beaded 
by  tbe  recital  that:  "This  is  a  proceeding 
for  contempt  alleged  to  have  been  commit- 
ted by  tbe  defendant,  Sam.  Gibson,  in  an 
action  for  injunction  In  this  court,  being 
No.  24,111  equity,  wherein  tbe  plaintiff,  H. 
H.  Sawyer,  was  plaintiff,  and  the  defendant, 
Sam.  Gibson,  was  defendant  in  which  ac- 
tion It  is  alleged  an  injunction  was  granted 
on  the  31st  day  of  May,  lOOT,  against  said 
defendant"  It  was  then  agreed:  Tbat  the 
accused  had  operated  a  saloon  and  engaged 
In  the  sale  of  intoxicating  liquors  at  the 
place  described  in  the  Information.  That 
be,  said  defendant  stored  the  beer  .which 
was  drawn  from  kegs,  half  barrels  or  bar- 
rels, in  an  ice  box  in  the  basement  of  said 
building,  from  which  box  pipes  extended 
through  the  floor  to  faucets  in  the  saloon 
above,  from  which  faucets  the  beer  was 
drawn,  and  not  otherwise.  That  the  said 
beer  was  carried  down  a  stairway  outside 
of  said  building  through  a  door  in  the 
basement  and  was  there  stored  in  said  ice 
box,  and  when  said  receptacles  of  said  beer 
were  empty  they  were  removed  from  said 
ice  box  and  taken  out  through  said  base- 
ment door  to  the  street  That  said  defend- 
ant paid  to  the  city  of  Sioux  City,  Iowa,  for 
the  privilege  of  selling  sandwiches  In  bis 
said  place  v^  business,  a  tax  known  as  a 
"license,"  and  was  granted  a  permit  there- 
for by  said  city.  That  there  was  no  way  of 
passing  from  said  saloon  into  said  ice  box, 
and  when  a  tap  was  to  be  made  some  one 
regularly  employed  in  and  about  said  prem- 
ises was  required  to  pass  out  of  the  front 
and  only  entrance  to  said  saloon,  go  down 
said  stairway,  pass  through  the  door  of  tbe 
basement  and  enter  said  Ice  box  tn  order 


•For  otber  cases  us  same  topic  and  section  NUMBER  in  0«c.  ft  Am.  Digs.  1807  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Iowa) 


INTERNATIONAL  HARVESTER  CX>.  t.  IOWA  HARDWARE  CO. 


951 


to  make  the  tap,  and  then  return  by  the 
same  route  reyeroed.  That  no  one  save 
regular  employes  of  said  saloon  or  this  de- 
fendant entered  said  basement  or  said  Ice 
box,  and  then  only  for  the  purpose  hereinbe- 
fore set  forth,  and  at  no  time  or  under  no 
circumstances  was  said  basement  or  said 
Ice  box  used  as  a  place  for  the  sale  of,  dis- 
posing of  in  any  manner,  handling  or  oth- 
erwise illegally  trafficking  in  Intoxicating 
liquors,  or  in  permitting  the  same  to  be 
done  by  any  one.  The  accused  was  dis- 
charged, whereupon  writ  of  certiorari  was 
on  proper  showing  Issued  and  return  thereto 
made  exemplifying  the  record  as  stated. 
Order  discharging  accused  annulled. 

John  P.  Joe^h,  for  plaintiff.  T.  P.  Mur- 
phy and  Wilbur  Owen,  for  defendant 

LADD,  J.  The  decree  permanently  en- 
joining the  accused  from  unlawfully  en- 
gaging in  or  keeping  for  sale  Intoxicating 
liqncnv  was  not  Introduced  In  evidence  and 
was  not  referred  to  in  the  ag^ed  statement 
of  facts  otherwise  than  by  reciting  that  the 
contempt  was  "alleged  to  have  been  com- 
mitted by  the  defendant,  Sam.'  Gibson,  in  an 
action  for  injunction  in  this  court,  being 
No.  24,111  equity,  wtaereln  the  plalntltC,  H. 
H.  Sawyer,  was  plaintiff  and  the  defendant, 
Sam.  Gibson,  was  defendant,  in  which  It  is 
alleged  an  injunction  was  granted  on  the 
3l8t  day  of  May,  1907,  against  the  defend- 
ant"; but  this  was  enough  to  direct  the  at- 
tention of  the  court  to  the  duly  certified 
copy  of  the  decree,  as  entered  of  record,  at- 
tached to  the  information  filed,  and  of  which 
It  was  an  accurate  description.  Though  the 
presentation  of  a  certified  copy  of  the  de- 
cree as  a  basis  of  a  precept  may  not  be  es- 
sential as  in  other  cases  (section  4,372.  Code), 
when  this  Is  done,  and  such  decree  Is  Iden- 
tlfled  by  the  evidence  or  stipulation  of  facts 
as  the  one  alleged  to  have  been  violated,  it 
is  sufficiently  before  the  court  without  being 
formally  introduced  In  evidence.  Haaren 
V.  Mould,  Judge  (decided  at  present  term) 
122  N.  W.  921. 

2.  The- accused  kept  the  beer  to  be  sold  In 
an  ice  box  located  in  the  basement  Imme- 
dlatdy  below  the  single  room  In  which  be 
conducted  the  saloon.  There  was  no  door 
between  the  two,  but  pipes  tapped  the  re- 
ceptacles below  and  extended  through  the 
floor  to  faucets  In  the  saloon,  from  which 
the  beer  was  drawn  as  sold.  When  a  keg 
or  ban^  became  empty,  an  employ^  passed 
out  of  the  front  door  of  the  saloon,  and 
down  an  outside  stairway  to  the  basement, 
removed  the  empty  and  attached  the  pipe 
to  another.  The  kegs  and  barrels  were  tak- 
en to  the  ice  box  by  way  of  the  stairway 
through  the  outside  door  Into  the  basement, 
and  the  empties  taken  therefrom  by  the 
same  route.  No  one  save  employes  entered 
the  basement,  and  they  for  the  purposes 


mentioned  only.  The  method  pursued  doubt- 
less was  convenient,  but  unfortunately  was 
expressly  prohibited  by  law.  A  bare  recital 
of  the  facts  demonstrates  that  the  accused 
was  making  use  of  two  rooms  in  which  to 
transact  the  business,  the  one  in  which  to 
sell  and  the  other  to  store  the  liquors  for 
sale;  whereas,  the  statute  requires  that  the 
business  be  transacted  In  a '  single  room 
with  but  one  exit  or  entrance.  Powers  v. 
Klatt,  111  Iowa,  357.  82  N.  W.  752;  Garrett 
V.  Bishop.  113  Iowa.  23.  84  N.  W.  023;  State 
V.  Bussamus,  108  Iowa,  11,  78  N.  W.  700; 
State  V.  Donahoe,  120  Iowa,  154,  94  N.  W. 
503;  State  ▼.  Glfford,  111  Iowa,  64a  82  N. 
W.  1034;  Jones  v.  Bylngton,  128  Iowa,  397, 
104  N.  W.  473;  Bartel  v.  Hobson,  107  Iowa, 
644,  78  N.  W.  689;  Bell  v.  Hamm,  127  Iowa, 
84&  101  N.  W.  475. 

The  order  discharging  tiie  accused  is  an- 
nulled. 


INTERNATIONAL    HARVESTER    CO.    OF 

AMERICA  v.  IOWA  HARI>- 

WARB  CO.  ef  al. 

(Supreme  Court  of  Iowa.     Oct  27,  1909.) 

1.  Malicious  Prosecution  (I  e8»)— Wronq- 

FUL   AtTACHMKNT— BXEMPtABT   DAMAOKS. 

Before  exemplary  diiraaifps  may  be  allowed 
for  the  wrongful  and  mnliriouB  suing  out  of  an 
attachment,  actual  damages  must  be  shown. 

[E5d.    Note. — For   other   cases,    see    Malirioua 
Prosecution,  Cent  Dig.  |  167 ;   Dea  Dig.  S  OS.*] 

2.  Malicious  Pbosicution  (I  68*)— Weono- 
FUL  Attachment— Malic*. 

To  constitute  malice  necessary  to  sustain 
the  allowance  of  exemplary  damages  for  the 
malicious  suing  out  of  an  Attachment,  it  is  not 
necessary  to  prove  more  than  that  plaintiff  act- 
ed with  set  purpose  to  Injure  defendant. 

[Bd.    Note.— For   other   cases,   see    Mallclooi 
Prosecution,  Cent.  Dig.  !  157 ;  Dec.  Dig.  f  eS.*] 

3.  Malicious  Prosecution  (g  68*)— Wbono- 
TUL  Attachimnt— Malice— Agents. 

Under  sod)  rule,  if  the  agents  of  a  plain- 
tiff In  attachment  In  charge  ot  his  business  at- 
tempted to  coerce  defendant  In  payment  of  a 
debt  hy  wrongfully  suing  out  an  attachment, 
their  action  was  within  the  meaning  of  the  law 
malicious. 

[Ed.    Note.— For  other  cases,   see   Malicions 
Prosecution,  Cent  Dig.  1 167 ;  Dec.  Dig.  {  6a*] 

4.  Malicious  Prosecution  (|  64*)— Wrong- 
ful Attachment— Malic*— SuFFiciENOT  OF 

EVIDKNCK. 

In  a  counterclaim  for  maliciously  suing  ont 
an  attachment  evidence  krld  to  show  that 
plaintiff  by  his  ag«nt  knew  that  the  charge  on 
which  the  attachment  was  obtained,  that  defend- 
ant intended  to  defraud  plaintiff,  was  untrue,  ao 
that  the  attachment  was  malicious,  authorizing 
exemplary  damages. 

[Ed.    Note.— For  other   cases,   see   Malicious 
Prosecution,  Cent  Dig.  i  152 ;  Dec.  Dig.  |  64.*] 

5.  Malicious  Prosecution  (8  68*)— Wrong - 
ruL  Attachment— Exemplary  Damages. 

Where  an  attachment  is  sued  out  for  Uie 
purpose  of  harassing  the  defendant,  the  jury  has 
a  wide  discretion  in  the  allowance  of  exemplary 
damages. 

[Ed.   Note. — For   other   cases,    see   Malicious 
Prosecution,  Cent  Dig.  1 157 ;   Dec.  Dig.  |  6a*] 


•ror  otbsr  oaass  sm  same  topic  and  section  NUMBER  la  Doc.  *  Am.  Digs.  1901  to  data,  *  Baportcr  Indexes 


Digitized  by 


Google 


952 


122  NORTHWESTBRN  BEPORTEB. 


(Iowa 


6.  Malicious  Pbosiodtioh  (8  68*)— Waowa- 

F0I.     ATTACHVENT— EXKUFI^BT     DAKAOES— 
BXCESSIVKNESS. 

Where  plaintiff  in  an  action  by  Iiis  a^ent 
sues    out    an    attachment    without    reasonable 

? round  to  believe  that  defendant  intended  to  de- 
rand  plaintiff,  and  def^dant  had  at  all  times 
more  than  sufficient  proper^  subject  to  execu- 
tion, and  the  attachment  was  the  result  of  re- 
sentment for  not  getting  the  money  due  at  once, 
an  allowance  by  the  jury  of  $500  as  exemplary 
damages,  the  actual  damages  being  only  $40, 
was  not  ezcesBive. 

[Ed.  Note.— For  other  cases,  see  Malicious 
Prosecntion,  CJent.  Dig.  i  167;  Dec.  Dig.  8  68.*] 

7.  Malicious  Pbosecutioh  (8  69*)— Wrokg- 
FDL  Attachment— ATTOBirET' 8  Fees. 

In  such  case  an  allowance  of  $300  by  way 
of  attorney's  fees  was  not  excessive. 

[Ed.  Note.— For  other  cases,  see  Malidons 
Prosecution,  Cent.  Dig.  §  158 ;   Dec.  Dig.  |  60.»] 

8.  Maucioub  Pbosecutiow  (8  72*)— Wbong- 
FUL  Attachment— Instbtjctions. 

In  a  counterclaim  for  the  malicious  suing 
out  of  an  attachment,  instructions,  leaving  it 
to  the  jury  to  say  whether  plaintiff  had  good 
cause  to  believe  that  any  of  the  grounds  of  at- 
tachment were  true,  were  not  misleading,  in 
that  the  jury  could  find  against  plaintiff  if  only 
one  ground  was  unfounded,  where  by  the  other 
instructions  given  the  jurors  were  specifically 
instmcted  that  they  must  find,  to  charge  plain- 
tiff, that  all  the  grounds  were  unfounded. 

[Ed.  Note. — For  other  cases,  see  Malicious 
Prosecution,  Cent.  Dig.  1 169;  Dec.  Dig.  $  72.*] 

9.  Attaohubnt  (8  351*)— Wbohgfoi,  Attach- 
ment —  ATTACHMENT    BOND  —  ATTORNEY'S 

Fees— Amount. 

Under  the  statute,  declaring  that  in  an  ac- 
tion on  an  attachment  bond  the  plaintiff  therein 
may  recover,  if  the  attachment  was  wrongful, 
the  actual  damages  sustained  and  reasonable  at- 
torney's fees  fixed  by  the  court,  and,  if  the  at- 
tachment is  malicious,  exemplary  damages,  the 
attorney's  fees  need  not  be  reasonable  in  refer- 
ence to  the  actual  damages  sustained,  but  ma^ 
be  referred  to  the  exemplary  damages  in  addi- 
tion. 

[Eld.  Note.— For  other  cases,  see  Attachment, 
Cent  Dig.  i  1294 ;  Dec.  Dig.  8  351.»] 

10.  appeal  and  e^bor  (§  1058*)— harmless 
Ebboe— Question  to  Witness. 

Error  in  sustaining  an  objection  to  a  ques- 
tion io  a  witness  is  cured  by  subsequently  re- 
pe%^K  tlie  question  without  objection  to  which 
full  answer  is  made. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  8  4201 ;    Dec  Dig.  f  1058.*] 

Appeal  from  District  Court,  Clarke  County; 
H.  K.  Evans,  Judge. 

Action  to  recover  on  promissory  notes  and 
for  an  attachment  Defendant  admitted  lia- 
bility to  the  amount  of  the  notes  and  In- 
terest, but  interposed  a  counterclaim  for 
damages  for  a  wrongful  suing  out  of  the  at- 
tachment There  was  a  verdict  for  plaintiCt 
in  the  amount  of  the  claim  sued  on  less  $540, 
allowed  defendant  by  way  of  damages  for 
the  wrongful  attachment,  and  the  court  al- 
lowed by  way  of  costs  to  defendant  $300  as 
attorney's  fees.  From  a  judgment  on  this 
verdict,  the  plaintiff  appeals.    Affirmed. 

Temple  &  Temple,  for  appellant  O.  M. 
Slaymaker  and  J.  H.  Jamison,  for  appellees. 


McCLAIN,  J.  It  appears  that  at  the  time 
plaintiff  instituted  this  action  defendant  was 
Indebted  to  It  on  various  notes  In  the  aggre- 
gate sum  of  about  $2,400,  of  which  only 
about  $600  of  indebtedness  was  matured. 
The  ground  of  attachment  relied  upon  in 
this  court  by  appellant  as  having  been  es- 
tablished by  the  evidence  was  that  defend- 
ant had  disposed  of  Its  property  In  whole 
or  part  with  intent  to  defraud  its  creditors. 

1.  PlalntlfTs  attachment  was  levied  upon 
defendant's  stock  of  goods,  and  the  sheriff 
took  possession  thereof  on  Saturday  after- 
noon, and  the  levy  was  released  by  the  ex- 
ecution of  a  delivery  bond  by  plaintiff  before 
noon  of  the  following  Monday,  and  the  actual 
damag^es  shown  by  defendant  recoverable 
in  an  action  on  the  attachment  bond  did  not 
exceed  $40,  so  that  it  is  apparent  the  Jury 
allowed  at  least  $500  by  way  of  exemplary 
damages,  which,  under  the  Instmctlona  of 
the  court  given  in  accordance  with  the  pro- 
visions of  Code,  8  3885,  could  only  be  allow- 
ed If  it  was  shown  that  the  attachment  was 
not  only  wrongful,  but  also  maliciously  sued 
out.  It  Is  the  contention  of  appellant,  stat- 
ed in  differen't  ways,  that  there  was  no  evi- 
dence of  a  wrongful  suing  out  of  the  at- 
tachment, and,  more  especially,  no  evidence 
that  the  attachment  was  malicious.  The 
Jury  found.  In  answer  to  special  interrogato- 
ries, that  the  attachment  was  wrongful  and 
malicious  and  without  reasonable  cause,  and 
we  think  that  there  was  evldoice  to  support 
such  findings.  If  this  Is  so,  the  Jury  was 
warranted  In  giving  exemplary  damages,  pro- 
vided, of  course,  actual  damage  to  some 
amount  was  shown.  That  some  actual  dam- 
age was  established  which  might  be  recov- 
ered In  the  counterclaim  on  the  bond,  if  the 
Jury  found  the  attachment  to  have  been 
wrongfully  sued  out  and,  without  reasonable 
cause,  is  not  questioned.  Therefore  the  Jury 
was  justified  In  allowing  exemplary  damages, 
if  there  was  evidence  tending  to  show  that 
plaintiff  in  suing  out  the  attachment  had  no 
reasonable  cause  to  believe  the  ground  upon 
which  it  was  sued  to  be  true,  but  acted 
maliciously  in  so  doing.  On  the  evidence 
there  can  be  no  serious  question  but  that  the 
Jury  might  properly  find  plaintiff  to  have 
been  without  reasonable  cause  to  believe 
that  defendant's  disposal  of  its  property  was 
with  Intent  to  defraud  the  plaintiff,  and 
that  plaintiff  had  reasonable  cause  to  believe 
that  any  such  intention  existed.  The  only 
serious  question  under  the  evidence  is  as  to 
whether  plaintiff  acted  maliciously. 

To  constitute  the  malice  necessary  to  sus- 
tain the  allowance  by  the  Jury  of  exemplary 
damages  in  such  cases  it  is  not  necessary 
to  prove  more  than  that  plaintiff  acted  with 
the  Intention,  design,  or  set  purpose  to  in- 
jure the  defendant  Raver  ▼.  Webster,  3 
Iowa,  502,  66  Am.  Dec.  96;  Oaddls  t.  Lord, 
10  Iowa,  141;  Nordhaus  v.  Peterson,  54  Iowa, 


•For  other  cases  see  same  topic  and  section  NUMBER  in  Dec.  ft  Am.  Digs.  U07  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Iowa)  INTERNATIONAL  HARVESTER  CO.  t.  IOWA  HARDWARE  CO. 


d53 


68,  6  N.  W.  T7;  Hnrlbnt  v.  Hardenbrook, 
85  Iowa,  606,  62  N.  W.  610;  Union  MUl  Co. 
▼.  Prenaler,  100  Iowa,  640,  69  N.  W.  876. 
Without  attempting  to  recite  in  fnll  the  erl- 
dence  relied  upon  for  defendant  as  tending  to 
show  tbat  the  agent  of  plaintiff,  who  acted  In 
the  enforcement  of  this  claim,  caused  an  atr 
tachment  to  be  issued  with  the  purpose  of 
Injuring  defendant,  because  It  did  not  Im- 
mediately pay  the  amount  of  money  due 
when  demanded,  and  acted  without  any  rea- 
sonable ground  to  beliere  that  defendant  had 
any  purpose  of  defrauding  plaintiff'  In  dis- 
posing of  its  property,  it  ia  snfiBclent  to  say 
that  the  evldenee  quite  strongly  tends  to 
show  tbat  the  action  of  plaintiff's  agent  was 
prompted  by  his  resentment  at  the  defend- 
ant for  not  at  once  getting  and  paying  over 
the  amount  due,  rather  than  by  any  belief 
that  defendant  was  actuated  by  any  fraud- 
nlent  purpose.  P.  L.  Fowler,  who  was  in 
fact  carrying  on  business  under  the  name  of 
the  Iowa  Hardware  Company,  and  who  was 
made  with  the  company  a  joint  defendant  in 
the  action,  appears  to  have  bad  unincumber- 
ed property  within  this  state  subject  to  ex- 
ecution in  value  exceeding  the  amount  of 
plaintiff's  entire  claim,  and  there  is  not  the 
slightest  evidence  that  this  property  was 
being  concealed  or  put  beyond  the  reach  of 
bis  creditors.  Now,  while  plaintiff  had  the 
perfect  right  to  enforce  its  claim  against 
Fowler,  it  had  no  right  to  do  so  by  suing  an 
attachment  without  reasonable  ground  to  be- 
lieve that  the  charge  of  Intent  to  defraud  the 
plaintiff  was  true,  >  and  It  had  no  right  to 
coerce  the  defendant  Into  payment  by  the 
threat  of  a  wrongful  attachment.  If  its 
agents  In  charge  of  Its  business  did  attempt 
to  thus  coerce  Fowler,  their  action  was 
within  the  meaning  of  the  law  malicious; 
that  Is,  with  the  Intent,  design,  or  purpose 
to  injure  blm  as  above  indicated.  We  think 
that  there  can  be  no  doubt  under  the  evi- 
dence that  the  Jury  might  properly  find  that 
there  was  an  Intent  and  purpose  to  injure 
Fowler,  because  he  did  not  promptly  pay 
over  the  money  due  when  demanded,  and 
their  finding  of  exemplary  damages  was  not 
therefore  without  support. 

2.  We  have  more  doubt  as  to  whether  the 
Jury  did  not  allow  an  excessive  recovery  on 
defendant's  counterclaim  by  way  of  exem- 
plary damages.  The  amount  of  real  dam- 
age, as  already  indicated,  was  small;  but 
we  have  recently  said  that,  where  It  appears 
the  attachment  was  sued  out  for  the  pur- 
pose of  harassing  and  annoying  the  defend- 
ant, the  Jury  has  a  wide  discretion  in  the  al- 
lowance of  exemplary  damages.  Tyler  v. 
Bowen,  124  Iowa,  452,  100  N.  W.  505.  It  is 
true  In  that  case  the  court  attached  import- 
ance to  evidence  indicating  that  plaintiff's 
claim  was  a  "trumped  up"  affair,  which  does 
not  appear  in  the  case  before  us.  In  Byford 
▼.  Olrton,  90  Iowa,  661,  67  N.  W.  588,  we 
sustained  an  allowance  of  $200  by  way  of 
exemplary  damages  where  It  appeared  that 


an  attachment  was  unwarranted  and  Tesort- 
ed  to  more  as  a  means  of  oppression  or  ex- 
tortion than  for  the  preservation  of  legal 
rights,  although,  as  In  the  case  before  as, 
the  actual  damage  was  slight  In  Ahrens  v. 
Fenton,  138  Iowa,  669,  115  N.  W.  233,  we 
reversed  a  Judgment  for  $500  by  way  of 
exemplary  damages  in  an  action  on  an  at- 
tachment bond  where  the  real  damage  was 
slight,  as  in  this  case;  but  here  the  jury 
had  allowed  $800  by  way  of  exemplary  dam- 
ages, and  this  the  court  had  reduced  to  $500, 
rendering  Judgment  accordingly,  and  we 
thought  that,  as  the  reduction  could  only 
have  been  made  on  the  ground  that  the  ver- 
dict was  the  result  of  passion  and  prej- 
udice, the  trial  court  should  have  set  aside 
the  entire  verdict.  Instead  of  reducing  It  In 
amount  and  giving  the  defendant  In  the  at- 
tachment suit  the  option  of  taking  Judgment 
for  the  reduced  sum.  In  the  absence  of  any 
evidence  of  reasonable  ground  of  belief  on 
the  part  of  plaintiff  that  defendant  Fowler 
had  any  purpose  to  defraud  the  plaintiff,  we 
are  disinclined  to  interfere  with  the  verdict 
on  the  ground  tbat  the  exemplary  damages 
allowed  were  excessive,  although  we  con- 
fess to  a  feeling  that  It  went  to  the  very 
verge  of  propriety.  We  reach  the  same  con- 
clusion without  further  discussion  as  to  the 
allowance  by  the  court  of  $300  by  way  of 
attorney's  fees. 

3.  Complaint  is  made  that  In  three  In- 
structions the  court  left  It  to  the  Jury  to 
say  whether  plaintiff  had  good  cause  to  be- 
lieve that  any  of  the  grounds  of  attachment 
were  true,  with  the  result,  as  claimed,  that 
the  Jury  might  have  understood  that  plain- 
tiff would  be  liable  If,  as  to  any  one  of  the 
grounds  of  attachment  alleged,  it  had  not 
good  cause  to  believe  it  to  be  true,  although 
as  a  matter  of  fact  it  bad  such  cause  of 
belief  as  to  other  grounds.  We  think,  how- 
ever, that  this  criticism  Is  without  merit,  for 
in  other  portions  of  the  Instructions  the  Ju- 
rors were  specifically  told  that  to  find  for 
defendant  they  must  find  the  attachment 
wrongfully  sued  out  without  reasonable 
grounds  to  believe  that  any  one  of  the 
grounds  of  attachment  set  out  In  the  peti- 
tion were  true.  There  might  be  a  possible 
Impropriety  as  to  a  portion  of  one  instruc- 
tion In  the  respect  criticised;  but,  taking 
the  charge  as  a  whole,  there  is  not  the  slight- 
est reason  to  suppose  that  the  Jurors  were 
misled,  and  it  was  not  necessary  therefore 
to  give  the  instruction  asked  for  plaintiff, 
which  was  no  more  persuasive  In  his  favor 
than  some  of  those  actually  given. 

4.  By  some  ingenious  interpretation  of  the 
language  of  the  statute  which  we  do  not 
perhaps  fully  appreciate,  counsel  insist  that 
attorney's  fees  are  not  to  be  allowed  In  case 
of  recovery  for  malicious  suing  out  of  at- 
tachment, and  tbat  the  allowance  of  $300 
attorney's  fees,  where  the  actual  damage 
shown  was  so  small,  was  on  that  account  ex- 
cessive;   but  the  cases  cited  In  support  of 


Digitized  by  VjOOQ  l€ 


954 


122  NORTHWESTBRN  BBPORTES. 


(lowt 


this  contention  are  cases  where  the  action 
was  not  on  the  attachment  bond.  The  coun- 
terclaim In  this  case  was  specifically  predi- 
cated upon  the  attachment  bond,  and  the 
statute  declares  that  In  an  action  on  the 
bond  "the  plaintiff  therein  may  recover,  if 
he  shows  that  the  attachment  was  wrongfully 
sued  out,  and  that  there  was  no  reasonable 
cause  to  believe  the  ground  upon  which  the 
same  was  sued  to  be  true,  the  actual  dam- 
ages sustained  and  reasonable  attorney's  fees 
to  be  fixed  by  the  court ;  and  if  It  be  shown 
such  attachment  was  sued  out  maliciously,  he 
may  recover  exemplary  damages."  No  author- 
ity Is  cited  by  counsel  for  the  contention  that 
attorney's  fees  are  to  be  limited  to  those  rea- 
sonable witb  reference  to  the  actual  damage 
sustained.  Of  course,  It  Is  necessary  to  prove 
actual  damages  In  order  to  Justify  the  al- 
lowance of  any  attorney's  fees;  but  where 
actual  damages  are  shown,  and  the  Jury 
finds  the  attachment  to  have  been  sued  out 
maliciously  and  allows  exemplary  damages 
on  that  account,  then  surely,  as  we  think, 
the  court  should  fix  the  attorney's  fees  with 
reference  to  the  entire  amount  recovered  by 
the  defendant.  It  surely  could  not  have 
been  the  Intention  of  the  Legislature  to  ex- 
clude from  the  consideration  of  the  court. 
In  fixing  attorney's  fees  In  a  case  where  ex- 
emplary damages  were  properly  allowed,  a 
reasonable  expense  by  way  of  attorney's 
fees  in  proving  the  action  to  have  been  mali- 
cious and  exemplary  damages  to  have  been 
properly  Included  in  the  verdict  of  the  Jury. 

5.  Error  Is  asslfped  in  the  sustaining  of 
an  objection  to  a  question  asked  of  a  wit- 
ness for  plaintiff  as  to  whether  he  submitted 
to  counsel  as  plaintiff's  agent  the  facts  with 
reference  to  the  attachment  as  he  had  stated 
them  in  bis  evidence;  the  evident  purpose 
lielDg  to  show  advice  of  counsel  as  negativing 
malice.  But  the  question  was  subsequently 
repeated  without  objection  made,  and  the 
answer  was  apparently  as  full  as  it  could 
have  been  to  the  question  objected  to,  and 
we  fall  to  see  any  possible  prejudice  to  the 
plaintiff  In  the  ruling. 

Finding  no  error  In  the  record,  the  judg- 
ment is  affirmed. 


BOBBINS  T.  &JSLSY  et  aL 

(Supreme  Court  of  Iowa.     Oct  28,  1909.) 

1.  Appxai.  and  Ebbob  (i  832*)— Obound  fob 
Behbabiro. 

A  misstatement  as  to  the  nature  of  the  ac- 
tion In  the  opinion  foniishes  no  ground  for 
granting  a  rriiearing. 

[Bid.  Note.— For  other  cases,  see  Appeal  and 
Error,  Ofent.  Dig.  i  3228;   Dec.  IHg.  f  832.*] 

2.  Judgment  (5  253*)— Allowance  in  Equi- 
ty Cask  When  Not  Claimed  in  Pleadings. 

Though  no  claim  for  interest  was  made  in 
the  pleadings  in  an  equity  case  for  damages  for 
fraud  in  an  exchange  of  property,  plaintiff  may 
be  allowed   interest  on   the   balance   found   due 


him' from  the  date  of  the  esbfaange  to  the  date 
of  the  decree. 

[Ed.  Note.— For  other  cases,  see  Judgment, 
Cent  Dig.  IS  443,  444;   Dec.  IMg.  I  253.*] 

Appeal  from  District  Court,  Madison  Coun- 
ty ;  Edmund  Nichols,  Judge; 
On  rehearing.    Denied. 
For  former  opinion,  see  121  N.  W.  674. 

A.  W.  Wilkinson,  PhlL  E.  Wilkinson,  and 
C.  A.  Bobbins,  for  appellant  John  A.  Oulher, 
for  appellees. 

FEB  CUBIAM.  The  original  opinion 
treated  the  case  as  one  tried  at  law,  while 
It  was  In  fact  tried  as  an  equitable  action. 
The  error  was  occasioned  by  the  appellant's 
statement  in  his  brief  that,  before  the  con- 
clusion of  the  trial  below,  he  abandoned 
his  action  for  a  rescission  of  the  contract  and 
by  amendment  to  his  petition  made  the 
action  one  to  recover  damages  sustained 
on  account  of  fraud  and  deceit  However,  It 
now  appears  that  the  case  was  tried  as  In 
equity,  and  It  should  have  been  so  treated  in 
the  original  opinion.  The  misstatement  as  to 
the  nature  of  the  action  cannot  however, 
affect  the  result  and  hence  It  furnishes  no 
ground  for  granting  a  rehearing.  As  the 
opinion  Indicates,  the  evidence  Is  ample  to 
support  the  finding  of  the  trial  court,  and 
our  conclusion  on  original  submission  was 
that  the  case  was  rightly  decided  on  the  evi- 
dence. A  careful  re-examlnation  of  the  rec- 
ord confirms  this  conclusion. 

The  plaintiff  on  the  original  sabmission  sug- 
gested in  his  brief  that,he  should  have  been 
allowed  Interest  on  the  balance  found  due 
him  from  February  3,  1906,  the  date  of  the 
exchange  of  properties,  to  the  date  of  the 
decree.  No  claim  for  such  Interest  was  made 
In  his  pleadings,  bnt  notwithstanding  this 
a  court  of  equity  may  award  Interest  In  the 
final  adjustment  of  the  respective  claims  of 
the  parties,  and  we  think  the  plaintiff  may 
properly  be  allowed  interest  at  6  per  cent 
on  $1,300  from  the  date  of  the  exchange  of 
properties  to  the  date  of  the  decree  below, 
as  suggested  by  him.  The  original  oplni<m 
will  therefore  be  modified  in  this  respect, 
and  the  plaintiff  may  have  Judgment  for 
such  interest  In  this  court 

With  the  modification  thas  indicated,  the 
opinion  will  stand,  and  the  petition  for  a 
rehearing  Is  denied. 


In  le  BBANDES'  BSTATB. 

HOTBB  et  al.  v.  BUCHHOLZ  et  al.  (HEBr 

MINGHAD-SEN  &   HERMING- 

HAUSEN,  IntervenerB). 

(Supreme  Court  of  Iowa.     Oct  28.  1909.) 

1.    Yen  DOB    AND     PUBCHASEB    (|    70*)— PRICE— 

Contract  to  Suppobt  fob  lir-      


-LlABIUTT 

FOB  FUNEBAL  EXPENSES. 

One  agreeing  to  support  another  for  life  in 
consideration  of  receiving  real  estate  of  the  lat- 


•For  other  cue*  ae*  ume  topic  and  lectlon  NUHBBR  In  Dec.  ft  Am.  Digs.  U07  to  date,  *  Reporter  Indexea 


Digitized  by 


Google 


Iowa) 


IN  SB  BBANDES'  ESTA.TEL 


956 


ter  is  not  bonad  to  pay  the  funenJ  expenaea  of 
the  latter ;  but  her  estate,  if  any,  is  liable  there- 
for. 

[Ed.  Note.— For  other  cases,  see  Vendor  and 
Purchaser,  Cent  Dig.  i  102;  Dec.  Dig.  i  70.*] 

2.  JuDOMENT  ({  754*)— Lien— Statctobt  Pbo- 

VISIONS. 

A  judgment  is  not  a  lien  unless  made  so 
by  statute. 

[Ed.  Note.— For  other  cases,  see  Judgment, 
Gent  Dig.  f  1318 ;    Dea  Dig.  |  754*] 

3.  Costs  (I  283*)  —  Lien  — Coubt  Kerdebing 
Judgment  —  DiBTBior  Ooubt  Sitting  in 
Pbobate. 

Code  1897,  K  3801,  3802,  provide  that  judg- 
ments of  the  Supreme  or  district  courts  are  liens 
on  the  real  estate  of  defendant,  and  that,  when 
the  land  lies  in  the  county  wherein  the  judg- 
ment was  rendered,  the  lien  attaches  from  the 
date  of  the  rendition ;  but,  if  in  another  county, 
it  does  not  attach  until  an  attested  copy  of  the 
judgment  is  filed  in  the  district  court  of  tne  coun- 
ty in  which  the  land  lies.  The  Rnpreme  Court 
on  appeal  from  a  judgment  ordering  distribution 
of  a  decadent's  eotate,  as  prayed  by  the  widow, 
reversed  the  judgment  and  determined  that  a 
claimant  to  a  part  of  real  estate  standing  in  de- 
cedent's name  was  the  owner  and  taxed  the 
costs  of  the  Supreme  Court  against  the  widow, 
who  was  awarded  real  estate.  Procedendo  is- 
sued to  the  district  court,  and  judgment  was  en- 
tered there  for  the  costs  in  the  Siipreme  Court 
and  also  for  costs  in  the  trial  court  The  real 
estate  of  the  widow  was  not  situated  in  the 
county  in  which  the  judgment  of  the  Supreme 
Court  was  rendered.  At  the  time  of  the  rendi- 
tion of  the  judgment  by  the  district  court,  a 
statement  of  the  costs  of  the  Supreme  Court  had 
tieen  sent  to  the  clerk  of  the  district  court. 
Betd  that,  as  the  widow  secured  her  title  and 
right  to  the  property  throufrh  a  decree  In  pro- 
Iwite  in  which  she  was  adjudged  to  pay  the 
costs  of  the  appeai  to  the  Supreme  Court,  the 
judgment  for  costs  became  a  lien  on  hqr  proper- 
ty so  secured,  and  ordinary  creditors  of  the 
widow  having  notice  of  the  judgment  had  no 
greater  rights  than  she  had,  and  the  judgment 
for  the  costs  was  superior  to  the  claims  of  the 
creditors. 

[Ed.  Note.— For  other  cases,  see  Costs,  Dec. 
Dig.  I  283.*] 

4.  JuDovBirr  (i  224*)  —  Designation  of 
Amount— Costs. 

A  judgment  for  costs  which  leaves  blank 
the  amount  of  the  costs  is  valid,  and  the  amount 
of  costs  may  be  inserted  at  any  time. 

[Ed.  Note.— For  other  cases,  see  Judgment, 
Cent  Dig.  I  404 ;   Dec.  Dig.  t  224.*] 

Appeal  from  District  Court,  Lee  County; 
Henry  Bsnlc,  Jr.,  Judge. 

In  an  action  In  probate  by  the  ezecntor  of 
the  estate  of  Johanna  Brandes,  deceased,  to 
sell  the  real  estate  of  which  she  died  seised 
for  the  payment  of  debts,  Mina  Hoyer  and 
Conrad  Boyer,  by  way  of  answer  to  the  ap- 
plication, sotight  to  have  costs  recovered 
against  the  deceased  in  another  proceeding, 
dedared  to  t>e  a  lien  upon  the  real  property 
of  the  deceased  or  the  proceeds  thereof.  The 
executor  resisted  this  relief,  and,  among  oth- 
er tbtngs,  pleaded  that  whatever  claim  the 
Boyers  may  have  for  costs  Is  more  than  off- 
set by  obligations  they  owed  the  deceased, 
chief  among  which  was  their  duty  to  pay 
the  last  sicicness  and  funeral  expenses  which 
liad  tteen  filed  against  the  estate.  The  trial 
court  (onnd  that  the  Hoyers  should  t>e  charg- 


ed with  a  certain  doctor'a  bill,  bat  with  no 
other  item;  that  they  bad  a  prior  lien  upon 
the  proceeds  of  the  sale  of  the  real  estate 
to  the  amount  of-  the  costs  incurred  u^n  the 
appeal  of  the  case  of  Brandes  v.  Brandes, 
120  Iowa,  351, 105  N.  W.  499.  The  defendants 
and  interveners  appeal.    Affirmed. 

Hermlnghausen  &  Hermlnghausen,  for  ap- 
pellants. J.  L.  Benbow  and  H.  Schlemer,  for 
appellees.  ' 

DBEMER,  J.  Defendants,  Brandes  and 
Bnchholz,  are  devisees  under  the  last  will 
and  testament  of  Johanna  Brandes,  deceased, 
and  defendants  Hermlnghausen  &  Hermlng- 
hausen are  creditors  of  the  deceased.  After 
the  death  of  William  Brandes,  the  husband 
of  Johanna  Brandes,  now  deceased,  the  wid- 
ow brought  action  to  have  her  distributive 
share  of  her  husband's  estate  set  aside  to  her. 
Mina  and  Conrad  Hoyer  and  William  and 
Edward  Vogel  defended.  The  Hoyers  alleged 
that  three  of  the  lots  which  appeared  to  have 
been  owned  by  deceased  really  belonged  to 
them  under  a  contract  with  the  deceased  and 
hlB  wife,  whereby  the  Hoyers  agreed  to  care 
for  the  Brandes  during  their  old  age.  They 
claimed  to  have  fulfilled  part  of  their  con- 
tract and  were  ready  and  willing  to  carry  it 
out  In  toto,  but  that  the  widow  refused  to 
accept  the  care  which  they  offered  to  give. 
The  trial  court  ordered  distribution  as  pray- 
ed by  the  widow,  and  the  Boyers  appealed. 
This  court  reversed  the  lower  court  and  found 
that  the  Hoyers  were  entitled  to  the  lots 
they  claimed,  and  the  case  was  reversed  on 
the  appeal  of  the  Hoyers.  The  costs  of  this 
court,  amounting  to  $136.50,  were  taxed 
against  the  widow,  Johanna  Brandes.  Proce- 
dendo issued  to  the  district  court  and,  as  we 
understood  it,  judgment  was  altered  there 
tor  the  costs  in  this  court,  and  also  for  costs 
in  the  lower  court  amounting  to  $60.65.  This 
judgment,  as  appears  in  the  record,  was  en- 
tered in  the  probate  docket  of  the  district 
court  Claims  for  funeral  expenses,  doctors' 
bills,  etc.,  were  filed  in  the  estate  of  Johanna 
Brandes,  who  died  after  the  termination  of 
the  suit  for  distribution,  and  it  is  contended 
that  imder  their  contract  with  the  Brandes 
these  claims  Should  l>e  paid  by  tlie  Hoyers, 
and  that  in  any  event  these  should  be  oSSet 
against  their  claim  for  costs. 
>  Hermlnghausen  &  Hermlnghausen  are  cred- 
itors of  Johanna  Brandes,  and  they  allege 
that  the  proceeds  from  the  sale  of  her  proper- 
ty will  not  amount  to  more  tlian  the  amount 
of  tbelr  dalm.  They  object  to  any  allow- 
ance to  the  Hoyers  <»  account  of  the  judg- 
ment for  costs,  and  further  say  that  in  no 
event  should  they  have  more  than  a  pro  rata 
share  of  their  claim  for  costs.  Upon  these 
Issues  the  case  was  tried  to  the  court,  re- 
sulting in  the  following  order  and  decree: 
"The  court,  upon  full  consideration,  after 
hearing  the  evidence  and  argmnents  of  coun- 


•For  other  cases  se««una  topic  and  section  NUHBBR  In  Dec.  Ik  Am,  Digs.  U47  to  tat*,  A  Reporter  Indazes 


Digitized  by  VjOOQ  l€ 


956 


122  NORTHWESTERN  REPORTER. 


(lowm 


sel,  finds,  aiul  so  orders,  that  tbe  costs  taxed 
in  this  court  In  the  case  of  Johanna  Brandes 
▼.  WllUam  a  Brandes  et  al..  No.  5,603  Pro- 
bate, shall  be  retaxed  and  apportioned.  Wit- 
ness fees  In  favor  of  parties  to  said  salt  shall 
be  strlclien  from  the  record,  and  all  taxable 
costs  shall  be  apportioned,  the  one  half  there- 
of taxed  to  Johanna  Brandes  and  the  other 
half  thereof  to  Edward  Vogel  and  Wm.  To- 
gel.  The  court  further  finds,  and  so  orders, 
that  Mlna  Hoyer  and  Conrad  Hoyer  are 
chargeable  with  the  claim  of  Dr.  M.  Wahrer, 
filed  against  decedent's  estate.  The  court 
further  finds,  and  so  orders,  that  the  claim 
of  F.  B.  Sternberg  is  not  chargeable  against 
Mlna  Hoyer  and  Conrad  Hoyer.  The  court 
further  finds,  and  so  orders,  that  Mlna  Hoy- 
er and  Conrad  have  a  prior  lien  against  the 
proceeds  of  sale  of  realty  belonging  to  de- 
cedent's estate  for  all  costs  taxed  In  their 
favor  in  the  Supreme  Court  in  Johanna 
Brandes  y.  William  C.  Brandes  et  al.,  No. 
5,603  Probate,  less,  however,  the  claim  of  Dr. 
M.  Wahrer.  The  executor  is  ordered  and  di- 
rected to  pay  over  according  to  the  order." 
The  trial  court  was  evidently  of  opinion  that 
the  Hoyers  should  pay  the  doctor  bill  for 
services  rendered  Mrs.  Brandes,  but  not  the 
bill  for  funeral  expenses ;  and  the  final  order 
indicates  that  the  court  found  that  the  Judg- 
ment for  costs  In  this  court  was  a  lien  upon 
the  property  of  Johanna  Brandes  prior  and 
superior  to  any  other  claims  against  the  es- 
tate which  were  not  made  Hens  before  her 
death.  From  this  order  it  would  appear  that 
the  costs  In  the  probate  court  were  not  made 
liens.    The  appeal  challenges  these  rulings. 

We  are  quite  content  with  the  finding  that 
the  Hoyers  were  not  bound  under  their  con- 
tract to  pay  the  funeral  expenses  of  Mrs. 
Brandes.  This  was  not  part  of  their  contract 
with  the  deceased.  They  agreed  to  care  for 
her  during  life,  not  to  hury  her  at  death. 
If  she  had  any  estate,  this  estate  was  subject 
to  dalms  for  her  funeral  expenses.  There 
is  no  proof  that  the  Hoyers  agreed  to  pay 
funeral  expenses. 

Apx>ellants  contend  that  neither  the  Judg- 
ment of  this  court  nor  that  of  the  district 
court,  although  rendered  against  Johanna 
Brandes,  was  a  lien  upon  her  real  estate  for 
the  reason  that  a  Judgment  of  this  court  is 
not  a  lieu  upon  real  estate  situated  in  an- 
other county  than  Polk  until  it  is  doclceted 
in  the  conn^  where  the  real  estate  is  situat- 
ed, and  that  a  Judgment  for  costs  in  a  pro- 
bate proceeding  in  the  district  court  is  not 
a  lien  upon  real  estate  even  In  the  county 
where  rendered.  As  the  trial  court  did  not 
allow  the  costs  taxed  In  the  original  probate 
proceeding,  we  have  to  determine  whether 
or  not  a  Judgment  for  the  costs  of  this  court 
was  a  lien  upon  Johanna  Brandes'  property. 
If  so,  then  the  trial  court  did  not  err  in  its 
order.  If,  on  the  other  hand,  no  lien  was 
created,  then  the  trial  court  was  in  error  in 
Its  findings.  There  was  not  only  a  Judgment 
in  this  court  for  the  costs  of  the  appeal  ren- 


dered January  15,  1906,  and  before  the  death 
of  Mrs.  Brandes,  but  also  a  Judgment  in  the 
probate  court  for  the  amount  thereof  after 
return  of  the  procedendo  to  the  district  court 
on  April  17,  1906;  this  being  before  the 
death  of  Mrs.  Brandes.  This  order  was  aft- 
erwards modified  so  as  to  tax  one  half  of  the 
costs  of  the  trial  below  to  Johanna  Brandes 
and  the  other  half  to  the  Vogels,  who  were 
defeated  on  their  appeal  to  this  court.  It 
is  fundamental,  of  course,  that  a  Judgment 
is  not  a  lien  upon  real  estate  unless  made  so 
by  statute.  Albee  v.  Curtis  &  Morey,  77 
Iowa,  644,  42  N.  W.  508. 

Our  iwesent  statutes  provide  that  Judg- 
ments of  the  Supreme  or  district  courts  of 
the  state  are  liens  u[)on  the  real  estate  own- 
ed by  the  defendant  at  the  time  of  their  ren- 
dition and  upon  all  he  may  subsequently  ac- 
quire. See  Code,  (  S801.  By  section  3802  It 
is  provided :  "When  the  land  lies  in  the  coun- 
ty wherein  the  Judgment  was  rendered,  the 
Hen  shall  attach  from  the  date  of  such  ren- 
dition, but  if  in  another  it  will  not  attadi  un- 
til an  attested  copy  of  the  Judgment  is  filed 
in  the  oflSce  of  the  clerk  of  the  district  court 
of  the  county  in  which  the  land  lies."  Ap- 
pellants contend  that  until  transcripted  to 
the  district  court,  or  until  entry  of  Judgment 
there,  the  Judgment  of  this  court  was  not  a 
lien  upon  the  real  estate  of  the  Judgment 
debtor  situated  in  Lee  county.  The  modified 
Judgment  rendered  by  the  district  court  aft- 
er the  return  of  the  procedendo,  while  provid- 
ing that  the  costs  of  this  court  should  be 
paid  by'  Johanna  Brandes,  did  not  fix  the 
amount  of  these  costs,  although  at  that  time 
a  statement  of  the  costs  and  of  the  fact  that 
Judgment  had  been  rendered  against  Johanna 
Brandes  in  this  court  with  the  record  and 
page  thereof  had  been  sent  by  the  clerk  of 
this  court  with  the  procedendo  to  the  clerk 
of  the  district  court,  and  was  in  his  posses- 
sion when  the  order  was  made  in  this  case 
establishing  these  costs  as  a  lien,  and,  la 
the  final  order,  which  included  an  appor- 
tionment of  the  costs  in  the  original  case, 
the  executor  was  directed  to  pay  the  costs  of 
this  court  on  appeal.  We  may  assume  for 
the  purposes  of  the  case  that,  until  tran- 
scripted to  the  district  court,  the  Judgment 
of  this  court  was  not  a  Hen  upon  the  real 
estate  of  Johanna  Brandes,  and  that  In  or- 
dinary proceedings  In  probate  a  Judgment 
for  costs  does  not  become  a  lien  upon  real 
estate;  but  the  record  here  shows  tiiat  a 
statement  of  the  costs  of  this  court  was  filed 
with  the  clerk  of  the  district  court,  and  it  al- 
so appears  that  the  costs  were  incurred  in  an 
action  to  set  aside  Johanna  Brandes'  dis- 
tributive share  of  her  deceased  husband's 
real  estate.  The  proceedings  were  adversary 
in  character,  and,  although  on  the  probate 
side  of  the  docket,  we  think  that,  as  Johanna 
Brandes  secured  her  title  and  right  to  the 
property  through  a  decree  in  probate  in 
which  she  was  adjudged  to  pay  the  cost  of 
the  appeal  to  this  court,  this  Judgment  for 


Digitized  by  VjOOQ  l€ 


Iowa) 


STATS  T.  OLARK. 


967 


costs  became  a  lien  npon  the  property  bo  se- 
cured. Appellants,  who  claim  through  Mrs. 
Brandes,  are  In  no  better  position  than  she 
would  have  been  had  she  attempted  to  dalm 
the  property  free  from  any  Uen  of  the  Judg- 
ment for  costs.  It  appears  that  both  the  ad- 
ministrator and  the  Interveners,  who  are  or- 
dinary creditors,  had  notice  of  this  judgment 
for  costs  before  any  attempt  was  made  to 
sell  the  property  to  pay  debts.  Bven  with- 
out actual  notice,  they  are  not  In  the  i>08l- 
tlon  of  innocent  purchasers  for  value.  They 
have  no  other  or  greater  rights  than  Mrs. 
Brandes  would  have  had,  had  she  lived.  Had 
she  survived,  we  have  no  doubt  that  the  Hoy- 
ers  might  have  collected  their  Judgment  for 
costs  by  execution  and  the  levy  of  a  fee  bill. 

It  Is  also  contended  that,  as  the  amount  of 
the  costs  was  left  blank  In  the  judgment  as 
rendered,  the  judgment  is  void  and  of  no  ef- 
fect. This  position  Is  answered  by  Frankel 
V.  Railroad  Co.,  TO  Iowa,  424,  80  N.  W.  679, 
wherein  it  Is  expressly  held  that  such  a  judg- 
ment Is  valid  and  the  amount  of  the  costs 
may  be  inserted  at  any  time.  See,  also,  LInd 
V.  Adams,  10  Iowa,  898,  77  Am.  Dec.  123. 
Roane  v.  Hamilton,  101  Iowa,  250,  70  N.  W. 
181,  Is  not  In  point  There  the  amount  of 
the  Judgment  was  left  blank,  and  this  was 
held  to  be  fatal. 

Appellants  also  question  the  procedure 
adopted  In  this  case,  but  an  examination  of 
the  record  discloses  that  it  was  entirely  prop- 
er and  legal. 

Appellants'  motion  to  strike  appellees' 
amoidment  to  abstract  Is  overruled.  Uttle, 
if  anything,  set  forth  therein  may  properly 
l>e  said  to  be  unnecessary  to  a  final  deter- 
mination of  the  case. 

No  error  appears,  and  the  Jndj^ent  must 
be,  and  it  is,  afSrmed. 


SWINET  V.  AMERICAN  EXPRESS  CO. 
(Supreme  Court  of  Iowa.    Oct.  28,  1909.) 
Appeal  from  District  Court,  Webster  Coun- 
ty;  J.  H.  Richards,  Judge. 
On  rehearing.     Affirmed. 
For  former  opinion,  see  115  N.  W.  212. 

P.  F.  Nugent,  for  appellant  Kelleher  & 
O'Connor  and  W.  S.  Kenyon,  for  appellee. 

PER  CURIAM.  An  opinion  was  filed  In 
this  case  on  the  10th  of  March,  1908,  which 
is  reported  In  115  N.  W.  212.  A  rehearing 
was  granted  because  of  doubt  as  to  the  cor- 
rectness of  the  fourth  division  of  said  opin- 
ion. We  have  again  given  the  entire  case 
careful  consideration,  and  reach  the  con* 
elusion  that  the  original  opinion  Is  in  all 
respects  right,  and  that  it  should  be  adhered 
to  and  adopted  as  the  opinion  of  the  court  on 
rehearing,  which  is  accordingly  done,  and  the 
Judgment  affirmed. 

Affirmed. 


STATE  V.  OLARK. 
(Supreme  Court  of  Iowa.     Oct  27,  1909.) 

1.  GanaiiAL  lAw  (|  784*)— CiBomcsTANTiAi. 

EVIDENOB— iNSTBTTCnONS. 

In  a  prosecution  for  the  larceny  of  cattle, 
in  which  the  evidence  was  wholly  circumstantial, 
the  correct  instruction  as  to  the  degree  of  proof 
required   stated. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  H  1883-1888,  l922,  1960 ;  Dec. 
Dig.  I  784.*] 

2.  Cbiminai.  Law  (f  784*)— ClBouuffrARTiAL 
Evidence— iNSXBtrcnoNs. 

Where  the  evidence  to  connect  defendant 
with  the  larceny  of  cattle  was  wholly  circum- 
stantial, an  instmction  on  circoniBtantial  evi- 
dence, which  omitted  to  charie  as  to  the  de- 
gree of  proof  required  to  establish  the  essential 
circumstances,  was  insufficient,  and  a  conten- 
tion that  the  principal  circumstance  was  the  un- 
explained recent  possession  of  the  cattle,  on 
which  the  court  instructed  that  such  fact  must 
be  proved  beyond  reasonable  doubt  is  unten- 
able, where  the  fact  of  such  possession  was 
shown  wholly  by  circamstantlal  evidence. 

[Ed.  Note. — For  other  cases,  see  Criminal 
Law,  Cent  Dig.  |S  1884-1887;  Dee.  Dig.  i 
784.*] 

3.  Labcewt  ((  64*)  —  Possession  —  Pbopebtt 
Stolen— CiBcnuBTANTiAi.  EvinxNos. 

In  a  prosecution  for  larceny  of  cattle,  the 
fact  of  the  possession  by  defendant  of  the  cat- 
tle of  prosecuting  witness  may  be  proved  by  cir- 
cumstantial evidence. 

[Ed.  Note.— For  other  cases,  see  Larceny, 
Cent  Dig.  i  178;   Dec.  Dig.  {  64.*] 

4.  Laboent  (I  64*)— Possession  of  Stolen 
Pbopebtt— Identitication. 

In  a  prosecution  for  the  larceny  of  cattle, 
it  Is  not  essential  that  all  the  lost  cattle  be 
identified  in  the  possession  of  defendant,  either 
by  direct  or  circumstantial  evidence. 

[Ed.  Note.— For  other  cases,  see  Larceny, 
Cent  Dig.  I  174;   Dec.  Dig.  |  64.*] 

B.  GaiMiNAL  Law  (t  1172*)  — Afpxai.  — In- 
STBVcnoNS— HABiofss  Ebbob— RECENT  Pos- 
session. 

An  instmction  that  the  unexplained  pos- 
session of  recently  stolen  propertv  Is  sufficient 
to  raise  a  presumption  of  guilt,  though  inaccu- 
rate in  language,  yet  having  been  frequently 
announced,  is  not  reversible  error,  especially 
where  a  correct  concrete  instmction  was  given 
in  the  case. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent.  Dig.  |  315S;    Dec  Dig.  i  1172.*] 

6.  Time  (|  10*)— Notice  of  Additional  Wrr- 

NESBES. 

Under  the  statute  requiring  a  notice  of  ad- 
ditional witnesses  to  be  given  defendants  four 
days  before  trial,  a  notice  was  given  November 
28th,  and  the  trial  commenced  Alonday  morning, 
December  2d.  Held,  under  Code  1897,  {  48,  par. 
23,  providing  that  the  first  day  shall  be  excluded 
and  the  last  day  included,  that  the  notice  was 
snfficient,  as  Sunday,  not  being  the  last,  should 
be  counted. 

[Ed.  Note.— For  other  cases,  see  Time,  Cent. 
Dig.  {{  34-62;    Dec.  Dig.  S  10.*] 

Appeal  from  District  Court,  Jefferson  Coun- 
ty; M.  A.  Roberts,  Judge. 

Indictment  for  grand  larceny.  Verdict 
and  judgment  of  guilty.  Defendant  appeals. 
Reversed. 


•For  other  cases  see  same  toplo  and  section  NUMBER  In  Dec.  *  Am.  Digs.  U07  to  date,  A  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


968 


122  NOBTHWESTERN  BEPOBTBB. 


(Iowa 


RoUln  J.  Wilson  and  LeKgett  &  McKem- 
ey,  for  appellant  H.  W.  Byers,  Atty.  Gen., 
ana  C.  W.  Lyons,  Asst  Atty.  Gen.,  for  the 
State. 

EVANS,  a  J.  The  defendant  and  Charles 
Clark,  his  brother,  were  Indicted  for  the  al- 
leged larceny  of  16  head  of  cattle.  Four- 
teen of  these  cattle  were  the  property  of 
one  Allen,  and  2  of  them  were  the  property 
of  one  Walker.  These  cattle  disappeared 
from  the  pastures  of  their  owners  on  Sun- 
day night,  June  2,  1907.  The  theory  of  the 
state  Is  that  these  cattle  were  taken  by  the 
defendants  on  Sunday  night,  and  driven  to 
I^bertyrllle,  12^  miles  distant,  and  shipped 
to  Chicago  on  Monday  morning.  The  de- 
fendants were  seen  on  the  Sunday  night, 
driving  lii  the  direction  of  this  pasture  with 
a  team  and  buggy.  A  number  of  vrltnesses 
testified  that  late  on  Sunday  night  they  sep- 
arately met,  on  the  road  between  the  pas- 
ture and  Llbertyville,  two  men  driving 
about  this  number  of  cattle  in  the  general 
direction  of  Llbertyville,  and  that  one  of 
the  men  was  on  foot,  and  the  other  was  In 
a  buggy  driving  a  team.  The  testimony  of 
these  several  witnesses  related  to  different 
points  in  the  route,  and  at  different  hours 
in  the  night  The  last  witness  fixed  the 
time  at  about  12:30  o'clock.  The  cattle 
were  then'  being  driven  into  the  city  lim- 
its of  Llbertyville.  On  Monday  morning  the 
defendant  bad  16  cattle  in  the  stockyards 
at  Llbertyville,  for  which  he  had  already 
engaged  a  car,  and  which  be  shipped  to  Cht- 
cngo  in  the  morning.  He  had  come  to  the 
hotel  at  Ltbertyvllle  at  1  o'clock  In  the 
morning.  He  was  somewhat  splashed  with 
dirt  and  said  that  he  had  walked  In.  There 
was  evidence  tending  to  identify  by  descrip- 
tion some  of  the  cattle  in  the  stockyards  on 
Monday  morning,  but  there  was  no  direct 
and  positive  Ideutlflcation  of  any  of  the  cat- 
tle as  being  those  of  Allen  or  Walker.  This 
is  only  a  partial  statement  of  the  evidence, 
but  It  Is  sufficient  to  indicate  its  general 
nature  and  the  theory  of  the  prosecution. 
Tbe  contention  of  the  state  is  that  It  proved 
that  the  cattle  were  stolen,  and  that  it  trac- 
ed the  same  into  the  irassesslon  of  the  de- 
fendant and  that  such  possession,  unex- 
plained, was  sufficient  to  warrant  a  verdict 
of  guilty.  It  is  urged  on  behalf  of  defend- 
ant that  the  state  wholly  failed  to  make  a 
case,  and  that  we  ought  to  reverse  the 
Judgment  for  insufficiency  of  the  evidence. 
Various  other  complaints  are  made,  the 
chief  of  which  is  that  the  trial  court  failed 
to  instruct  the  Jury  as  fully  as  It  ought  on 
the  subject  of  circumstantial  evidence.  This 
latter  complaint  wUI  receive  our  first  con- 
sideration. 

1.  As  already  indicated,  the  evidence  of- 
fered by  the  state  as  tending  to  connect  the 
defendant  with  the  corpus  delicti  was  whol- 
ly circumstantial.  Counsel  for  defendant 
asked  the  court  to  give  to  the  Jury  a  general 


instruction  on  the  subject  of  ciicnmstantial 
evidence,  and  that  it  should  Instruct  them 
that  every  fact  necessary  to  a  conviction 
must  be  proved  beyond  a  reasonable  doubt. 
With  such  request  counsel  presented  a  for- 
mulated Instruction,  which  the  court  refused. 
In  State  v.  Blydenbnrg,  135  Iowa,  27S,  112 
N.  W.  689,  the  foUowing  was  held  as  a  prop- 
er instruction  in  such  a  case:  "To  warrant 
a  conviction  on  circumstantial  evidence  each 
fact  In  the  chain  of  circumstances  neces- 
sary to  be  established  to  prove  the  guilt  of 
the  accused  must  be  proven  by  competent 
evidence  beyond  a  reasonable  doubt,  and 
all  the  facts  and  circumstances  necessary 
to  prove  guilt  must  be  connected  with  each 
other,  and  with  the  main  fact  sought  to  be 
proved,  and  all  the  circumstances,  taken  to- 
gether, must  be  of  a  conclusive  nature,  lead- 
ing to  a  satisfactory  conclusion,  and  pro- 
ducing a  moral  certainty  tliat  the  crime 
charged  was  committed,  and  that  the  ac- 
cused committed  it  It  is  not  sufficient 
that  they  coincide  with  and  render  probable 
the  guilt  of  the  accused,  but  they  must  ex- 
clude every  other  reasonable  hypothesis." 
We  have  considered  much  whether  the  in- 
structions actually  given  by  the  court  were 
not  a  fair  compliance  with  this  rule.  The 
court  did  Instruct  that  It  was  incumbent  on 
the  state  to  prove  beyond  reasonable  doubt 
that  the  cattle,  or  some  of  them,  were  stol- 
en. It  also  instructed  that  it  was  incum- 
bent upon  the  state  to  prove,  beyond  reason- 
able doubt  defendant's  possession  of  the 
stolen  property.  It  also  defined  what  was 
meant  by  circumstantial  evidence,  and  that 
the  circumstance  proved  must  be  Inconsist- 
ent with  any  other  rational  conclusion  than 
the  guilt  of  the  defendant  But  it  did  not 
otherwise  state  the  degree  of  proof  required 
to  establish  the  essential  circumstances. 
The  argument  for  the  state  Is  that  the  prin- 
cipal circumstance  upon  which  It  relied  was 
the  possession,  unexplained,  of  recently  stol- 
en property,  and  that  the  court  instructed 
that  such  fact  must  be  proved  beyond  rea- 
sonable doubt  The  trouble  with  this  posi- 
tion Is  that  the  fact  of  such  possession  is  It- 
self established,  if  at  all,  by  circumstantial 
evidence,  and  the  rule  contended  for  would 
apply  to  such  evidence^  We  are  constrained 
to  hold,  therefore,  that  the  court  ought  to 
have  given  an  instruction  substantially  in 
the  form,  above  set  forth,  as  was  held  In 
State  V.  Blyenburg,  supra.  The  Instruction 
asked  by  the  defendant  was  not  in  strict  ac- 
cordance with  the  rule  as  thus  approved, 
and  the  court  was  Justified  in  refusing  such 
Instruction  in  tlie  form  in  which  it  was  pre- 
sented. But  we  think  that  the  d^nrture 
was  not  so  great  as  to  Justify  the  court  in 
ignoring  the  rule  altogether.  We  think, 
therefore,  that  the  trial  court  erred  at  this 
point  and  that  a  new  trial  must  be  awarded. 
2.  Inasmuch  as  a  new  trial  must  be 
awarded  on  the  ground  above  Indicated,  and 
other  evidence  may  be  adduced  upon  such 


Digitized  by  VjOOQ  l€ 


Iowa) 


TISDALS  T.  ENNI8. 


959 


new  trial,  we  deem  It  proper  to  avoid  a  dis- 
cnsslon  of  tlie  erldence  except  In  a  very 
brief  way.  It  is  argued  by  defendant  that 
notliing  short  of  a  positiye  and  direct  iden- 
tification of  the  cattle  in  defendant's  posses- 
sion as  those  of  the  prosecuting  witness 
wonld  permit  a  conviction.  From  the  very 
nature  of  the  case  such  an  identification  is 
impossible.  We  would  be  slow,  however,  to 
hold  that  Identification  and  possession  may 
not  be  proved  by  circumstantial  evldeupe, 
provided  the  circumstances  are  su£Bciently 
dtfnite  and  convincing.  We  know  no  rule 
of  law  that  would  bar  the  application  of 
circumstantial  evidence  to  such  a  fact  Of 
course  it  Is  not  essential  that  all  the  lost 
cattle  he  identified,  either  by  direct  or  cir- 
cnmstantlal  evidence.  The  circumstances 
shown  In  the  evidence  are  substantial  and 
significant  as  far  as  they  go.  But  whether 
they  go  far  enough  to  warrant  a  finding  by 
the  Jury  that  they  exclude  every  other  rea- 
sonable hypothesis  except  that  of  g^lt  is  a 
close  question,  upon  which  we  withhold 
judgment  at  the  present  time. 

8.  In  Instruction  No.  9  the  court  ins'truct- 
ed  the  Jury  that  the  unexplained  possession 
of  recentiy  stolen  property  "is  sufficient  to 
raise  a  presumption  of  defendant's  guilt." 
The  defendant  complains  of  this  instruction 
on  the  general  ground  that  a  presumption  of 
innocence  obtains  in  his  favor  at  all  stages 
of  the  trial,  and  that  under  no  circumstan- 
ces conld  there  be  a  presumption  of  guilt 
The  language  used  by  the  trial  court  was 
drawn  from  onr  own  reports,  where  the 
rule  has  been  freqnentiy  announced  in  sub- 
stantially this  form.  We  have  heretofore 
criticised  this  language  as  inaccurate,  and 
as  liable  to  be  misunderstood.  But  we 
would  not  be  justified  in  basing  reversal  up- 
on it  State  V.  Brady,  121  Iowa,  661,  97 
N.  W.  62.  There  is  the  further  considera- 
tion in  this  case  that  in  instruction  No.  10 
the  court  applied  the  rule  to  this  case  in  its 
proper  meaning,  and  instructed  the  jury 
that  if  such  unexplained  possession  was 
proved  beyond  reasonable  doubt  "you  would 
be  justified  under  the  law  in  presuming  that 
such  possession  was  a  guilty  possession  on 
the  part  of  the  defendant"  We  think  this 
correct  concrete  application  of  the  rule  was 
sofflcient  to  prevent  any  misunderstanding 
of  the  alMMract  statement  of  It 

4.  On  Thursday  afternoon,  November  28th, 
the  state  served  upon  the  defendant  a  no- 
tice of  additional  witnesses.  The  trial  com- 
menced on  Monday  morning,  December  2d. 
One  witness  was  introduced  in  pursuance  of 
such  notice.  The  defendant  objected,  on 
the  ground  that  he  Iiad  not  had  the  four 
days'  notice  provided  for  by  statute.  The 
argument  Is  that  the  statute  Intended  to 
give  to  the  defendant  four  full  days  for  the 
ccmsideratlon  of  proposed  additional  testi- 
mony, and  tliat  in  tliis  case  Sunday  and 


Monday  should  be  eliminated  from  the 
count  This  question  cannot  arise  again  so 
far  as  these  witnesses  are  concerned,  and 
we  might  decline  to  consider  it  for  that  rea- 
son. It  has,  however,  been  fully  argued, 
and  it  may  arise  again  as  to  other  addi- 
tional witnesses  in  this  same  case.  We, 
therefore,  deem  it  best  to  pass  upon  it  W« 
think  the  argrument  of  the  defendant  unduly 
enlarges  the  statute,  and  the  purpose  of  the 
Legislature,  In  his  behalf.  That  any  notice 
at  all  of  additional  witnesses  should  be  re- 
quired Is  a  matter  of  legislative  grace.  No 
constitutional  right  is  Involved  therein.  The 
provision  of  the  statute  is  that  such  notice 
must  be  given  at  least  four  days  before  the 
day  of  trial.  How  these  four  days  are  to 
be  counted  Is  expressly  pointed  out  in  par- 
agraph 23,  i  48,  of  the  Ck>de.  This  provides 
that  the  first  day  shall  be  excluded  and  the 
last  day  Included.  Under  this  rule  the  serv- 
ice of  the  notice  was  in  time.  Monday  must 
be  counted  thereunder  as  the  fourth  day. 
The  intervening  Sunday  cannot  be  excluded. 
If  Sunday  were  the  fourth  day,  a  different 
question  would  be  presented. 

For  the  error  pointed  out  in  the  first  di- 
vision hereof,  the  judgment  below  must  be 
reversed. 

Bevetsed  and  remanded. 


TISDALB  T.  ENNIS  et  al. 
(Supreme  Court  of  Iowa.     Oct.  27,  1909.) 

1.  Tbiai,  (J  67*)— Obdeb  of  Proof— Rebdt- 

TAL. 

Testimony  being  offered  In  rebuttal,  objec- 
tion that  it  was  offered  after  plaintiff  had  rested 
was  wittiout  merit. 

[Ed.  Note. — For  other  cases,  see  Trial,  Cent. 
Dig.  i  157 ;   Dec.  Dig.  i  67.*] 

2.  CoNHNUANOB  (8  7*)— Discretion. 

Oranting  of  continuance  is  largely  in  the 
discretion  of  the  trial  coort 

lEd.  Note.— For  other  cases,  see  Continuance, 
Cent  Dig.  §g  17,  18;   Dec.  Dig.  |  7.*] 

3.  COKTINUANCB    ($    26*)— Absbrcx    OF    Bvi- 
DENCE— Diligence. 

Granting  of  continnance  to  a  day  later  in 
the  term  to  secure  rebutting  evidence,  the  neces- 
sity for  which  did  not  appear  till  defendant 
testified,  was  not  an  abuse  of  discretion ;  the 
showing  of  diligence  having  been  reasonably 
sufficient 

[Ed.  Note.— For  other  cases,  see  Continuance, 
Cent  Dig.  t{  74,  93;    Dec.  Dig.  |  2a»] 

4.  Appeal  and  Ebbob  (|  1027*) — Habkless 

E2BB0B. 

Any  error,  the  effect  of  which  was  only  to 
allow  the  court  to  bear  an  equity  case  on  all 
the  evidence  of  the  parties,  is  not  ground  for 
reversal;  it  being  apparent  the  results  would 
be  the  same  on  a  new  trial. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {  4033;   Dec.  Dig.  f  1027.*] 

Appeal  from  District  Court  Wapello  Coun- 
ty;  C.  W.  Vermillion,  Judge. 

Action  to  recover  the  amount  due  on  a 
promissory  note  alleged  to  have  been  execut- 


•For  other  cmm  we  uun*  topic  and  lectlon  NUMBER  in  Dec.  A  Am.  Digs.  1907  to  date,  A  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


960 


122  NORTHWBSTEBN  BEPORTEB. 


(Iowa 


ed  by  said  Aon  Ennls  and  her  husband,  John 
B.  BmilB.  There  was  a  denial  under  oath 
of  the  signature  to  the  note  and  mortgage 
by  the  defendant  Ann  Ennls.  Her  husband 
made  default  The  court,  after  hearing  the 
evidence,  entered  a  decree  as  prayed,  and 
the  defendant  Ann  Ennls  appeals.    AfBrmed. 

Steck,  Daugherty  ft  Stock,  for  appellant. 
Tisdale  ft  Helndel,  for  appellee. 

McCLAIM,  J.  The  note  and  mortgage  sued 
on  purport  to  have  been  executed  by  de- 
fendant Ann  Ennls,  her  husband,  John  B. 
Ennls,  Joining  with  her  in  the  mortgage. 
Prior  to  the  institution  of  the  suit  the  mar- 
riage relation  between  defendants,  had  been 
terminated  by  divorce,  and  the  husband  made 
default  On  the  issue  raised  by  the  wife's 
denial  of  the  genuineness  of  her  signature  to 
the  note  and  mortgage,  evidence  was  intro- 
duced for  plaintiff  tending  to  show  that  the 
wife,  who  wiU  be  treated  hereafter  as  sole 
defendant  had  acknowledged  to  plaintiff  the 
genuineness  of  her  signature.  Defendant,  as 
a  witness,  testified  that  she  never  signed  the 
instrument,  and  plaintiff  thereupon  moved 
for  a  continuance  to  a  later  day  of  the  term 
in  order  to  secure  the  testimony  of  John  B. 
Ennis,  stating  that,  if  said  witness  were 
present,  he  would  testify  that  he  signed  bis 
wife's  name*  to  the  note  and  mortgage  by 
her  direction  and  In  her  presence,  and  that 
tbe  money  procured  for  such  note  and  mort- 
gage was  used  in  the  improvem^it  of  tbe 
mortgaged  property  which  belonged  to  the 
wife,  and  which  witness  had  theretofore  been 
managing  for  her.  This  motion  was  sus- 
tained by  a  showing  as  to  surprise  on  the 
part  of  plaintiff  at  the  testimony  of  defend- 
ant and  diligence  in  the  efforts  to  procure 
the  testimony  of  the  witness.  This  motion 
was  resisted  on  the  ground  that  it  was  not 
Interposed  in  proper  time,  and  that  the  show- 
lug  of  diligence  on  the  part  of  plaintiff  was 
not  sufficient  The  court  held  plaintlfCs  mo- 
tion sufficient,  whereupon  defendant  admit 
ted  that  the  witness,  if  present,  would  testify 
as  stated  in  the  motion,  and  the  motion  was 
accordingly  overruled.  Immediately  after 
this  ruling  was  made,  plaintuf  filed  an 
amendment  to  his  said  motion  for  a  continu- 
ance, setting  out  more  fully  the  facts  to  which 
it  was  alleged  John  B.  Ennis  would  testify, 
and  this  amendment  the  defendant  moved  to 
strike,  which  motion  the  court  overruled,  and 
the  case  was  thereupon  continued.  This  con- 
tinuance was  granted  on  April  14,  1908,  and 
on  May  ^th  following  the  hearing  of  the 
case  was  resumed,  whereupon  plaintiff  offered 
as  a  witness  John  B.  Ennls,  who  testified 
substantially  to  the  facts  set  forth  in  plain- 
tiff's motion  and  amended  motion  for  a  con- 
tinuance, and  offered  the  deposition  of  the 
notary  to  whom  the  acknowledgment  of  the 
mortgage  by  defendant  and  her  husband  was 
taken,  in  which  he  testified  that  the  wife 
bad  voluntarily  acknowledged  the  mortgage. 


The  testimony  of  the  husband  was  objected  to 
on  a  ground  not  now  relied  upon  by  defend- 
ant, and  his  testimony,  as  well  as  that  of 
the  notary  given  by  deposition,  was  objected 
to  because  offered  after  the  plaintiff  on  tbe 
former  hearing  had  rested  Ills  case.  As  the 
plaintiff  offered  the  testimony  of  these  wit- 
nesses in  rebuttal,  this  objection,  was  with- 
out merit,  and  was  properly  overruled. 
Thereupon  the  court  entered  a  decree  as 
prayed,  and  tbe  defendant  urges  as  the  sole 
ground  for  reversal  of  such  decree  that  the 
court  erred  in  granting  the  continuance  and 
affording  plaintiff  the  opportnnlly  to  intro- 
duce the  evidence  received  on  tbe  last  hear- 
ing. 

Without  regard  to  the  alleged  error  of 
law  in  granting  the  continuance,  defendant  is 
entitled  to  a  trial  de  novo  on  this  appeal, 
but  his  connsel  do  not  contend  that  under 
the  evidence  which  was  before  tbe  coart 
when  the  decree  was  finally  rendered,  any 
other  result  on  the  merits  could  be  readied, 
and  they  do  not  contend  that  by  any  action 
of  the  court  they  were  prevented  from  In- 
trodndng  all  the  evidence  which  could  tie 
procured  bearing  on  tbe  merits  of  the  con- 
troversy. Their  sole  claim  is  that  the  court 
erred  in  granting  a  continuance  when  appli- 
cation therefor  was  made,  and  refusing  to  de- 
cide the  case  on  the  evidence  which  had  then 
been  presented.  It  could  not  reasonably  be 
contended,  even  if  such  a  claim  were  made 
for  defendant,  that  at  the  time  the  continu- 
ance was  granted  defendant  was  entitled 
to  a  Judgment  in  her  behalf  on  the  evi- 
dence then  presented.  There  was  at  that 
time  conflicting  testimony  as  to  whether  tbe 
instruments  were,  in  fact,  executed  by  de- 
fendant. We  have  therefore  this  curious  sit- 
uation :  That  the  defendant  bringing  the  de^ 
cree  against  her  in  an  equity  case  to  this 
court  for  review  on  trial  de  novo,  concedes 
the  decree  to  be  correct  on  the  evidence, 
but  asks  its  reversal  for  error  of  law  com- 
mitted In  granting  a  continuance  during  ttie 
trial  which  enabled  the  plaintiff  to  introduce 
further  evidence  in  support  of  his  claim. 
Now,  it  may  be  conceded  that  in  an  equity 
case  the  unsuccessful  party  may  rely  upon 
errors  of  law  affecting  the  final  disposi- 
tion of  the  case,  but  we  think  that  relief 
from  the  final  decree  should  not  here  be 
granted  for  two  reasons.  In  the  first  place, 
the  granting  of  a  continuance  is  largely  in 
the  discretion  of  the  trial  court  in  the  in- 
terest of  Justice,  and  we  are  not  satisfied 
that  this  discretion  was  abused  in  granting 
the  continuance  complained  of.  The  neces- 
sity of  the  testimony  of  the  absent  witness 
bad  not  become  manifest  until  the  defendant 
had  testified  that  she  had  not  signed  nor 
authorized  the  affixing  of  her  signature  to 
the  note  and  mortgage.  The  showing  of 
diligence  was  reasonably  sufficient  and,  as 
a  postponement  was  not  asked  beyond  the 
term,  it  was  entirely  within  the  court's  prop- 
er discretion  to  allow  time  for  the  introduc- 


Digitized  by  VjOOQ  l€ 


Iowa) 


BOHILLINQKR  BROS.  &  OO.  ▼.  B08CH-BYAN  GRAIN  CO. 


961 


timi  of  further  evidence  in  r^uttal.  But,  In 
the  second  place,  a  reversal  for  error  In  the 
mllng  on  the  motion  for  a  continuance  would 
not  lead  to  any  change  In  the  final  result  of 
the  trial.  On  a  new  trial  the  evidence  of 
the  husband  and  the  notary  would  be  avail- 
able to  the  plaintiff,  and  It  la  not  suggested 
for  appellant  that  she  could  have  procured 
any  other  evidence  to  overcome  it  than  that 
which  was  offered  on  the  first  hearing,  with 
the  necessary  conclusion  that  the  decree  must 
be  for  plaintiff  as  it  was  on  the  final  hearing. 
We  will  not  reverse,  especially  in  an  equity 
case,  for  error  of  law  committed  during  the 
trial,  where  it  appears  without  question  that 
the  final  result  on  another  trial  must  be 
the  same.  Error  which  cannot  affect  the 
final  result  of  the  litigation  is  to  be  regard- 
ed as  without  prejudice.  Bchaefer  v.  An- 
chor Mut  Ins.  Co.,  133  Iowa,  206,  100  N.  W. 
857,  110  N.  W.  470;  Dawson  v.  WIsner,  11 
Iowa,  6;  Schoenhofen  Brew.  Co.  v.  Ann- 
Strong,  89  Iowa,  673,  57  N.  W.  436. 

Had  the  defendant  been  unable  by  reason 
of  rulings  against  her  to  secure  evidence 
supporting  her  contention,  then  she  might 
for  error  in  such  ruling  have  a  reversal  of 
the  decree  against  her,  but  the  rulings  com- 
plained of  were  only  such  as  enabled  the 
court  to  hear  all  the  evidence  offered  on 
either  side.  Defendant  could  not  have  tak- 
en an  interlocutory  appeal  from  the  action 
of  the  court  granting  a  continuance,  for  such 
an  order  is  not  one  materially  affecting  the 
merits.  Suddeth  v.  Boone,  121  Iowa,  258, 
98  N.  W.  863;  JafTTay  v.  Thompson,  65 
Iowa,  323,  21  N.  W.  659.  And  on  this  final 
appeal  from  the  decree  defendant  cannot 
urge  as  error  the  granting  of  the  continu- 
ance, which  simply  enabled  the  opposite  par- 
ty to  get  his  case  before  the  court  on  its 
merits. 

The  decree  is  therefore  aSBrmed. 


SGHILLINOEB  BROS.  &  00.  v.  BOSOH- 
RTAN  GRAIN  OO.  (GRBE'N,  Intervener). 
(Supreme  Court  of  Iowa.    Oct  28,  1909.) 

1.  CONTBACTS   (H   250,   319*)— BUILDINO   OOR- 
TBACTS— CONSTBUOnON. 

The  provisions  in  a  building  contract,  au- 
thorising the  contractor  to  discontinue  the  work, 
after  the  completion  of  certain  portions,  on  the 
failure  of  the  owner  to  pay  the  installment  of 
the  price  then  due,  authorizes  the  contractor, 
earning  an  installment  which  is  not  paid,  to 
discontinue  the  work  and  abandon  the  contract, 
and  the  owner  is  liable  for  the  proportionate 
share  of  the  contract  price  earned  by  the  con- 
tractor at  snch  time. 

[Ed.   Note.— For  other  cases,  see  Contracts, 
Cent  Dig.  H  1144,  1494;    Dec.  Dig.  U  250, 

2.  CoNTBAcrs  (I  280*)— BTni.DiNa  Ooittkactb 
— Pebfobuarcr. 

A  building  contract,  providing  for  payment 
in  installments,  provided  that  a  payment  should 


be  made  when  "the  total  walls,  interior  and 
exterior,"  had  reached  a  specified  height  above 
the  top  of  the  foundation  walls.  The  contractor 
built  walls  to  the  designated  height,  and  demand- 
ed an  installment,  a  part  of  which  was  paid, 
without  the  owner  objecting  that  all  the  walls 
were  not  as  high  as  required.  Some  of  the  bin 
walls  were  not  of  the  required  height,  but  the 
parties  so  construed  the  contract  that  they  were 
not  the  walls  required  to  be  built  to  the  desig- 
nated height  Beld  to  show  a  performance 
by  the  contractor  of  the  contract  entitling  bim 
to  an  installment. 

[Ed.   Note.— For  other  cases,   see   Contracts, 
Cent  Dig.  (  1252 ;   Dec.  Dig.  §  280.*] 

3.  CONTBACTS  ({  278*)— Pkrfobuance. 

One  suing  on  a  contract  must,  to  recover, 
show  a  substantial  compliance  with  its  terms, 
or  a  waiver  of  such  compliance  on  the  part  of 
the  adverse  party. 

[Ed.  Note.— For  other  cases,   see   Contracts, 
Cent  Dig.  {  1207 ;   Dec.  Dig,  f  278.*] 

4.  CoRTBAOTS  (g  280*)— BCILDIRO  CORTBAOTS 
— COMPLIARCE. 

A  contract  for  the  construction  of  a  con- 
crete building  provided  that  all  concrete  should 
be  of  one  part  cement,  two  parts  sand,  and  four 
parts  crushed  stone.  The  crushed  stone  first 
used  by  the  contractor  was  found  to  be  too  large, 
and  a  change  was  made  so  that  more  sand  was 
used.  The  change  was  made  with  the  knowl- 
edge and  consent  of  the  owner,  and  the  material 
which  went  Into  the  walls  was  first  class,  and 
in  substantial  compliance  with  the  contract. 
The  walls  were  not  as  smooth  as  they  should 
have  been  to  make  a  first-class  job  in  appear- 
ance, but  their  strenath  was  not  thereby  ma- 
teriaJIy  affected.  Held,  not  to  show  that  the 
concrete  used  in  the  construction  of  the  walls 
was  not  of  the  quality  agreed  on. 

[Ed.   Note.— For  other  cases,   see  Oontracts, 
Cent  Dig.  i  1252 ;  Dec.  Dig.  f  280.*] 

6.  cortbaots  ({  805*)— bnildiro  oortbacis 
—Stipulations— Objkctiors. 

Where  a  contract  for  the  construction  of 
a  concrete  building  called  for  hollow  walls,  and 

grovided  that  the  walls  should  be  thoroughly 
onded  with  concrete,  without  specifying  what 
portions  should  be  hollow,  and  what  occupied  by 
bonding  concrete,  the  owner,  who  Icnew  of  the 
manner  of  bonding,  and  made  no  objection 
thereto,  could  not  complain  thereof  when  sued  on 
the  contract  for  work  and  material  furnished. 

[Ed.   Note.— For  other  cases,  see   Contracts, 
Cent  Dig.  {  1467 ;  Dec.  Dig.  i  306.*] 

6.  CORTBACTS  (S  846*)— BUILDIRO  CORXBAOIS 

—AcTioRS— Issues. 

Where,  in  an  action  by  a  contractor  for 
work  done  and  material  furnished  under  the  con- 
tract, the  owner  denied  generally  that  the  wortc 
had  been  done  according  to  the  contract,  and 
pleaded  a  counterclaim  for  failure  of  the  con- 
tractor to  use  the  required  kind  and  quality  of 
material  and  in  the  proportions  required  by  the 
contract,  and  the  contractor  replied  by  plead- 
ing a  waiver  of  such  matter,  uie  question  of 
waiver  was  presented. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent  Dig.  {  1718;    Dec.  Dig.  {  346.*] 

7.  CORTBAOTS  (I  316*)— Demand  of  Pathbrt. 

Where  a  demand  is  made  for  payment  un- 
der a  contract  and  payment  is  refused  on  a 
specified  ground,  and  litigation  results  therefrom, 
ute  party  refusing  to  pay  cannot  afterwards 
change  his  ground,  but  he  thereby  waives  all 
other  grounds  known  to  him  at  the  time,  and 
he  is  estopped  thereafter  from  relying  thereon. 
[Ed.  Note.— For  other  cases,  see  Oontracts, 
Cent.  Dig.  |  1483%  ;    Dec  Dig.  |  316.*] 


•iror  ataer  cases  see  same  topic  ana  sactlon  NUMUKR  In  Dec.  *  Am.  Digs.  1907  to  data,  ft  Raportsr  Ind«z«s 


122N.W.-61 


Digitized  by  LjOOQ  l€ 


962 


122  NORTHWESTERN  REPORTER. 


(Iowa 


8.  CoRTBACTS  (I  261*)— BuniDiKO  Contracts 

— FAii,rBE  TO  Give  Bonds. 

A  buildine  contract  required  the  contractor 
to  give  bond,  premium  to  be  paid  by  the  own- 
er. The  owner  applied  for  a  bond,  and  arreed 
to  pay  the  premium.  The  a^nt  of  the  Dond 
company  made  ont  an  application,  and  sent  it 
to  the  contractor,  who  returned  it  because  it 
provided  that  he  should  pay  the  premium.  A 
second  application  wag  sent  to  the  contractor, 
with  a  statement  that  the  owner  would  pay 
the  expense  thereof.  The  contractor  signed 
the  application,  and  returned  it  to  the  agent, 
who  took  it  to  the  owner,  and  he  filled  out  an- 
swers to  questions.  The  bonding  company  re- 
quired the  owner  to  sign  an  agreement  that  it 
would  pay  the  premium  before  the  bond  was 
issued,  and  this  the  owner  refused  to  do.  Ne- 
gotiations were  then  entered  into  by  the  owner 
with  another  agent.  Held,  that  the  failnre  to 
furnish  a'  bond  was  not  by  the  foult  of  the  con- 
tractor, and  a  forfeiture  of  the  contract  could 
not  be  based  thereon. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent.  Dig.  i  1175;  Dec.  Dig.  {  261.*] 

Appeal  from  District  Court,  JAan  County; 
J.  H.  Preston,  Judge. 

On  rehearing.  Affirmed.  Former  opinion 
modified. 

For  former  opinion,  see  116  N.  W.  182. 

This  is  a  suit  In  equity,  brought  to  recover 
for  work  done  and  material  furnished  in  the 
construction  of  a  concrete  building  to  be 
used  for  a  malting  plant  The  work  and  ma- 
terial were  furnished  under  a  written  con- 
tract. The  plaintiff  also  asked  the  foreclosure 
of  a  mechanic's  lien  thereon.  The  contract 
on  which  the  suit  was  based,  and  under 
which  the  work  was  done,  fixed  the  contract 
price  at  |72,000,  to  be  paid  In  six  equal  In- 
stallments as  the  work  progressed.  The  first 
payment  of  $12,000  was  to  be  made  when 
the  total  walls,  interior  and  exterior,  bad 
reached  the  height  of  16  feet  above  the  top 
of  the  foundation  walls,  and  one-sixth  was  to 
be  paid  on  the  completion  of  each  25  feet 
in  height  of  all  walls.  The  last  installment 
was  to  be  paid  35  days  after  the  completion 
of  the  work.  The  contract  also  provided  that, 
should  payments  become  past  due,  it  was 
optional  with  the  contractor  to  continue  or  dis- 
continue the  work  until  such  payment  was 
made.  The  contract  also  provided  that  the 
contractor  should  give  a  twnd  in  the  sum  of 
125,000  for  the  faithful  performance  of  bis 
contract,  but  the  premium  for  said  bond 
was  to  be  paid  by  the  owner.  The  petition 
alleged  a  failure  of  the  defendant  to  make 
a  certain  payment  which  was  claimed  to  be 
due,  and  that  by  reason  of  such  failure  on 
the  part  of  tbe  defendant  the  plaintiff  had 
elected  to  discontinue  work  under  the  con- 
tract Tbe  defendant  denied  liability,  and 
filed  a  counterclaim  for  damages  In  tbe  sum 
of  $57,000.  The  plaintiff's  claim  as  made  in 
Its  pleadings  was  for  $20,000,  and  this  sum 
was  practically  allowed  by  tbe  trial  court 
The  intervener,  John  A.  Green,  filed  a  claim 
for  a  mechanic's  lien,  which  was  allowed  by 
the  trial  court  and  his  Hen  established  on, 


the  defendant's  property.  Tbe  defendant 
appeals  from  tbe  judgment  of  the  trial  court 
in  establishing  the  Hens  referred  to,  and  in 
giving  the  plaintiff  Judgment  for  any  amount 

C.  J.  Layboum,  Dawley  &  Wheeler,  and 
Crlssman  ft  Sargent,  for  appellant  Cbaai  A. 
Clark  and  Daniel  McCasklll  ft  Son,  for  ap- 
pellee. 

SHERWIN,  J.  There  was  a  written  con- 
tract between  the  parties  for  the  constmc- 
tlon  of  the  buildings  in  question.  It  provid- 
ed that  there  should  be  36  rectangular  bins 
In  tbe  storage  bouse;  that  tbe  bins  in  tbe 
workhouse  should  be  as  provided  by  tbe 
plans  of  tbe  defendant;  that  tbe  malthouse 
should  contain  certain  germinating  tanks, 
with  necessary  girders  and  columns  to  sup- 
port tbe  specified  load  intended,  the  central 
girders  to  have  a  span  of  22  feet  with  neces- 
sary angles  for  wind  bracing  and  tying  to- 
gether the  walls  of  tbe  building,  tbe  same 
to  extend  through  tbe  tanks  at  intervals  of 
about  12  feet  as  specified  by  tbe  plans  of 
the  defendant  The  speclficationB  as  to  the 
kllnbouse  related  to  the  strength  and  rein- 
forcement of  tbe  floors  only.  Tbe  contract 
provided:  "All  concrete  to  be  of  one  part 
Portland  cement  to  two  parts  sand  and 
four  parts  crushed  stone,  or  one  part  Port- 
land cement  and  six  parts  suitable  gravel  for 
tbe  purpose  and  of  equal  strength  with  stone, 
thoroughly  mixed  and  carefully  placed  so  as 
to  secure  a  thorough  bond  with  reinforcing 
metal."  It  specified  the  tbickness  of  tbe  In- 
terior walls  in  tbe  storage  bouse,  and  proyld- 
ed  that  such  walls  should  be  "thoroughly  re- 
inforced with  steel  straps  14  inches  apart  on 
centers,  tbe  size  of  such  straps  to  be  sufll- 
dent  to  give  1.45  per  cent  of  the  sectional 
area  of  the  wall  for  two-thirds  of  the  height 
of  the  wall."  It  provided  that  all  exterior 
walls,  and  the  party  wall  separating  the 
storehouse  and  the  workhouse  from  tbe  malt- 
bouse  and  kllnbouse,  and  the  cross  wall  be- 
tween the  malthouse  and  the  kllnbouse  should 
be  hollow,  "but  thoroughly  twnded  with  con- 
crete, so  that  the  air  space  shall  t>e  3  in. 
all  of  said  walls  to  be  of  .a  thickness  of  15 
in."  The  foregoing  are  all  of  the  detailed 
specifications  of  the  contract  material  to  an 
understanding  of  the  case,  but  the  contzact 
further  provided  that  "the  contractor  will 
submit  to  tbe  owner  detailed  drawings  show- 
ing dimensions  and  arrangement  of  parts  be- 
fore  work  Is  commenced  on  the  part  In  ques- 
tion, such  drawing  supplementing  those  of 
the  Bosch-Ryan  Grain  Company."  And,  fur- 
ther, "All  work  is  guaranteed  to  be  first 
class,  and  may  be  tested  with  tbe  full  load 
for  which  it  was  Intended  thirty  days  after 
its  erection,  or  any  time  thereafter,  and  any 
failure  or  weakness  shall  be  made  good  by 
the  contractor,  including  any  damages  caused 
by  such  failure." 


•For  otliw  CUM  M*  same  topic  and  ■ectlon  NUHBKR  In  Dec.  ft  Am.  Digs.  IM?  to  data,  ft  Rep«rtar  ladOM 


Digitized  by  VjOOQ  l€ 


Iowa) 


SCHILLINGSB  BROS.  &  CO.  v.  BOSCH-EYAN  QRAIN  00. 


963 


The  plaintiff  pleaded  full  compliance  with 
the  terms  of  the  contract  up  to  the  time  of 
abandoning  the  work  because  of  the  defend- 
ant's failure  to  make  the  first  payment  ac- 
cording to  the  terms  of  the  contract  The 
defendant  In  Its  answer  and  counterclaim  de- 
nied that  plaintiff  had  met  the  requirements 
of  the  contract,  and  said  "that  the  work  done 
by  plaintiff  on  said  structures  Is  not  first 
class  as  required  by  said  contract,  and  Is  not 
in  compliance  with  the  spedflcatlonB  of  said 
contract,  or  with  the  drawings  and  plans  and 
spedflcatlons  referred  to  therein ;  that  plain- 
tiff has  not  used  In  said  structures  the  kind 
or  qnallty  of  material  required  by  said  con- 
tract, and  has  not  used  the  material  in  the 
proportions  as  required  by  said  contract; 
that  plaintiff  has  failed  and  neglected  to 
fnmlsh  any  bond  for  the  performance  of 
said  contract  as  required  thereby."  With 
reference  to  the  plalntlfTs  abandonment  of 
the  work  the  defendant  pleaded  "that,  upon 
plaintiff  making  demand  for  the  first  in- 
stallment under  the  contract,  defendant  de- 
nied that  said  installment,  or  any  part  there- 
of, had  been  earned  or  was  due,  and  there- 
upon an  oral  agreement  was  made  between 
plaintiff  and  defendant  whereby  defendant 
ngreed  to  pay  the  first  Installment  upon  con- 
dition that  plaintiff  would  produce  and  fur- 
nish to  defendant  receipted  bills  for  the 
material  purchased  by  plaintiff  for  said 
structures,  which  the  plaintiff  agreed  to  do; 
and  under  said  oral  agreement,  and  pursu- 
ant thereto,  the  defendant  made  the  said 
payment  of  $5,000  to  plaintiff,  and  plaintiff 
has  wholly  failed  and  refused  to  produce 
or  furnish  to  defendant  any  receipted  bills 
for  such  material,  or  any  other  evidence  of 
payment  therefor  as  agreed  upon."  It  will 
be  noticed  that  in  Its  answer  proi>er  the  de- 
fendant did  no  more  than  to  deny  generally 
that  the  work  had  been  done  according  to  the 
contract,  while  In  its  counterclaim  it  speci- 
fied wherein  there  had  been  a  failure  in 
that  respect,  to  wit,  "that  plaintiff  has  not 
used  in  said  structure  the  kind  or  quality  of 
material  required  by  said  contract,  and  has 
not  used  the  material  in  the  proportions  as 
required  by  said  contract" 

By  the  terms  of  the  contract  the  plaintiff 
had  the  right  to  discontinue  work  there- 
under If  payments  were  not  made  as  agreed 
npon.  And  if  the  plaintiff  had  earned  the 
first  installment  when  It  discontinued  work 
on  the  8th  day  of  July,  It  was  Justified  in 
so  abandoning  the  contract  and  the  defend- 
ant Is  liable  under  the  contract  for  the  pro- 
portionate share  of  the  contract  price  earned 
by  the  plaintiff  at  such  time.  The  first 
payment  was  due  when  "the  total  walls,  in- 
terior and  exterior,"  had  reached  the  height 
of  15  feet  above  the  top  of  the  foundation 
walls.  The  evidence  shows,  without  serious 
conflict  that  the  walls  contemplated  by  this 
provision  of  the  contract  had  been  built  much 
hl^er  than  15  feet  at  the  time  of  the  de- 
mand for  such  payment    While  it  is  said 


that  some  of  the  bin  walls  were  not  then 
at  that  height  it  is  quite  clear  from  the 
nature  thereof,  and  from  the  construction 
placed  on  that  part  of  the  contract  by  the 
parties  themselves,  that  they  were  not  the 
walls  required  to  be  built  15  feet  high  before 
a  payment  became  due.  Indeed  the  appel- 
lant's own  contention  as  to  ^thls  matter 
shows  there  Is  nothing  in  the  claim.  It  says 
that  the  malt  bins,  which  were  vats  60  feet 
long  by  over  10  feet  wide,  there  being  two 
such  vats,  required  on  each  of  the  seven 
floors,  were  to  be  6%  feet  high  and  in  two 
tiers  of  seven  each.  They  were  to  be  svis- 
I)ended  on  girders,  and  were  in  no  mimA& 
connected  with  the  foundations  or  floors. 
They  were  simply  large  tubs  made  of  con- 
crete, and  were  evidently  no  part  of  the  In- 
terior walls.  Furthermore,  when  the  first 
payment  was  demanded,  and  $5,000  thereof 
paid,  no  objection  was'  made  that  the  walls 
were  not  as  high  as  required.  The  only  ob- 
jection then  made  was  that  receipted  bills 
for  material  were  not  produced.  The  plain- 
tiff sued  on  the  contract;  and,  to  be  entitled 
to  a  recovery  therennder,  it  must  show  a 
substantial  compliance  with  the  terms  there- 
of, or  a  waiver  of  such  compliance  on  the 
part  of  the  defendant 

The  appellant  says  that  the  structure  did 
not  comply  with  the  requirements  of  the  con- 
tract because  the  steel  was  Improperly  plac- 
ed in  the  walls,  that  the  hollow  walls  called 
for  were  not  made  hollow;  and  that  the  whole 
work  showed  such  signs  of  cordesshess  and 
inefficiency  on  the  part  of  the  contractors 
as  to  make  it  f&r  from  a  flrst-dass  or  work- 
manlike Job.  Specific  complaint  is  made  of 
the  quality  of  the  steel  used  and  of  the  man- 
ner of  placing  It  It  Is  sufficient  to  say  In 
regard  to  such  complaints  that  the  defend- 
ant's own  expert  witnesses  show  that  no  fair 
criticism  can  be  made  as  to  these  two  items. 
The  evidence  does  not  sustain  the  claim  that 
the  concrete  used  In  the  construction  of  the 
walls  was  not  the  quality  agreed  upon.  It  is 
true  that  the  crushed  stone  first  used  was 
found  to  be  undesirable  because  of  its  lar^e 
size,  and  that  a  change  was  made  so  that 
more  sand  was  used.  But  such  change  was 
made  with  the  knowledge  and  consent  of  the 
defendant  and  the  greater  weight  of  the  evi- 
dence shows  that  the  material  which  went 
into  the  walls  was  first  class,  and  in  substan- 
tial compliance  with  the  contract  That  the 
walls  were  not  as  smooth  and  plumb  as  th^y 
should  have  been  to  make  a  first-class  Job 
in  appearance  may  readily  be  admitted.  But 
the  weight  of  the  evidence  shows  that  their 
strength  was  not  thereby  materially  affectgfl. 
and  that  the  few  offsets  which  were  appa- 
rent were  very  short  and  affected  only  the 
appearance  of  the  walls.  The  method  of 
carrying  up  the  walls  Is  complained  of,  but 
the  evidence  fails  to  show  any  defect  in  the 
walls  on  account  thereof.  There  were  a  few 
exterior  voids  but  they  affected  the  appear- 
ance of  the  walls,  and  not  their  strength,  ac- 


Digitized  by  LjOOQ  l€ 


964 


122  NORTHWESTERN  REPORTER. 


(low* 


cording  to  the  weight  of  the  evidence.  There 
Is  evidence  tending  to  sustain  the  dalm  that 
the  walls  were  not  made  hollow  as  required 
by  the  contract,  but,  however  this  may  be 
as  a  matter  of  fact,  and  It  is  seriously  dis- 
puted, strict  compUance  with  that,  as  well 
as  with  other  requirements  of  the  contract, 
was  waived  by  the  defendant,  as  we  shall 
hereinafter  show.  While  the  contract  called 
for  hollow  walla,  it  also  provided  that  the 
same  walls  should  be  thoroughly  bonded  with 
concrete.  What  portions  should  be  hollow, 
and  what  occupied  by  bonding  concrete,  Is 
nowhere  specified,  and  If  the  manner  of  bond* 
lug  was  known  to  the  defendant,  and  permit- 
ted without  objection,  it  Is  now  in  no  situa- 
tion to  complain  thereof. 

We  now  come  to  the  question  of  the  de- 
fendant's waiver  and  the  estoppel  based 
thereon.  The  appellant  contends  that  this 
<IuestIon  should  not  be  considered  because 
uo  waiver  is  pleaded,  but  we  think  the  plead- 
ing sufficient  to  fairly  present  the  question. 
It  will  be  remembered  that  the  appellant 
made  no  specific  objection  to  the  manner  of 
the  plalntlfC's  performance  of  the  contract 
In  its  answer  proper,  and  that  the  specific 
complaints  were  first  made  in  Its  counter- 
claim. To  this  the  plalntlflt  replied,  plead- 
ing a  waiver  as  to  such  matters.  This  we 
think  sufficient  to  present  the  question.  The 
evidence  is  not  uncertain  as  to  the  fact  that 
Mr.  Bosch  was  present  practically  all  of  the 
time  durtag  the  construction  of  the  work  in 
question;  and  was  entirely  familiar  with  it  in 
all  of  Its  stages  of  progress.  He  made  sev- 
eral written  complaints  of  the  way  In  which 
It  was  being  done,  and  all  this  before  the 
payment  of  $5,000  was  made  on  the  7th  day 
of  July.  Tet  on  said  day,  when  the  defend- 
ant was  called  upon  for  the  whole  of  the 
first  payment,  no  objection  was  made  to  any 
of  the  work.  The  only  ground  upon  which 
such  full  payment  was  refused  was  because 
receipted  bUls  for  material  were  not  furnish- 
ed by  the  plaintiff.  Bosch  himself  testified 
that  he  paid  $5,000  upon  condition  only  that 
they  be  produced,  and  that  plaintiff  agreed 
to  tumish  them.  Where  a  demand  Is  made 
for  payment  under  a  contract,  and  such  pay- 
ment is  refused  upon  a  specified  ground,  and 
litigation  results  therefrom,  the  party  so  re- 
fusing to.  pay  cannot  afterwards  change  his 
ground.  He  thereby  waives  all  other  grounds 
known  to  him  at  the  time,  and  is  estopped 
thereafter  from  relying  thereon.  Miiliug  Co. 
v.  Ins.  Co.,  127  Iowa,  814,  103  N.  W.  207; 
Donley  v.  Porter,  119  Iowa,  646,  93  N.  W. 
674;  Hawes  v.  Swanzey,  123  Iowa,  54,  98 
N.  W.  586.  At  the  time  of  this  payment  and 
specific  objection,  the  defendant  had  full 
knowledge  of  the  manner  of  the  construction 
of  the  buildings  and  the  material  used  there- 
in. The.  only  thing  that  It  could  not  know  at 
that  time  was  whether  when  completed  the 
structures  would  stand  the  test  provided  for 


In  the  contract  But  time  was  given  for  aocb 
test  in  the  contract  itself,  and  all  payments, 
except  the  last,  were  to  be  made  notwith- 
standing the  test  requirement  In  additimi 
to  this  the  contract  expressly  provided  that 
"any  failure  or  weakness  shall  be  made  good 
by  the  contractor."  RegardlesSr  however,  of 
the  question  of  the  defendant's  waiver  of  the 
completed  condition  of  the  buildings,  we  are 
of  the  opinion  that  the  preponderance  of  the 
evidence  shows  that  the  structures  so  far  as 
completed  are  of  undoubted  ultimate  strength 
and  sufficiency. 

The  evidence  does  not  sustain  the  appel- 
lant's contention  that  the  plaintiff  through 
Mr,  Hoyt  agreed  to  furnish  receipted  bills, 
hence  there  was  in  fbct  no  condition  on  which 
the  $5,000  payment  was  made. 

The  contract  also  provides  that  "the  con- 
tractor is  to  give  bond  In  the  sum  of  twenty- 
five  thousand  dollars  for  the  faithful  per- 
formance of  this  contract,  the  premium  for 
said  bond  to  be  paid  by  the  owner."  The 
bond  was  never  given,  though  it  was  the  sab- 
ject  of  negotiation  for  some  time  after  the 
work  was  well  along.  Mr.  Bosch  seems  to 
have  made  application  for  a  bond,  and  agreed 
to  pay  the  premium  thereon.  The  agent  of  the 
bonding  company  then  made  out  an  applica- 
tion for  the  bond  to  his  company,  and  sent  It 
to  the  plaintiff  In  Chicago.  The  application, 
however,  provided  that  plaintiff  was  to  pay 
the  premium,  and  on  account  thereof  it  was 
returned  to  the  agent  A  second  application 
was  then  sent  to  plaintiff  with  the  statement 
that  the  Bosch-Ryan  Company  would  pay  the 
exi)ense  thereof.  This  application  was  sign- 
ed, and  returned  to  the  agent,  who  took  it  to 
Mr.  Bosch,  and  he  filled  out  one  or  two  an- 
swers to  questions.  All  was  then  satisfac- 
tory, except  that  the  bonding  company  re- 
quired the  Bosch-Ryan  Company  to  sign  an 
additional  agreement  that  they  would  pay 
the  premium  before  the  bond  was  issued,  and 
this  Mr.  Bosch  would  not  do.  Negotiations 
were  then  entered  into  by  Bosch  with  another 
agent  and  they  were  still  pending  when  the 
plaintiff  discontinued  work  on  the  8th  of 
July.  It  appears,  therefore,  that  a  bond  was 
not  furnished  through  no  fault  of  the  plain- 
tiff, and  a  forfeiture  of  the  contract  cannot 
be  based  on  the  facts  appearing  here. 

After  a  very  careful  re-examinatlon  of  the 
entire  record,  we  reach  the  conclusion  that 
the  judgment  of  the  district  court  should  be 
affirmed. 

Affirmed. 


WESTCOTT  et  al.  v.  MEEKEIR  et  al. 

(Supreme  Court  of  Iowa.     Oct  27,  1900.) 

1.  Dkeds   (§   128*)— CossTRucmoN— RuLB  nr 
Shelley's  Case. 

The  rule  in  Shelley's  Case,  as  applied  to 
conveyances,  is  a  rule  of  property  In  Iowa, 
which  U  binding  on  the  conrta  in  determining 


•For  other  cues  see  lame  topic  and  lecUon  NUMBKS  In,  D«c.  ft  Am.  Dlgi.  U07  to  d&ta^  ft  Reportar  ladazM 


Digitized  by  LjOOQ  l€ 


Xowi^ 


WESTCOTT  ▼.  HEEEBB. 


965 


the  liehts  of  jMirties  ander  conveTances  made 
prior  to  the  repeal  of  the  rule  b;  Acts  32d  Qen. 
Assem.  p.  157,  c.  159. 

[Ed.  Note.— For  other  cases,  see  Deeds,  (3ent. 
Dig.  a  413^15 ;  Dee.  Dig.  S  128.*] 
2.  Wnxs  (8  608*)— CoMSTBtfcnoN— Ruut  in 

Seeixkt's  Cask. 

The  rule  In  Shelley's  Case  will  not  be  ap- 
plied to  the  construction  of  a  devise  to  a  devisee 
for  life,  remainder  to  his  heirs,  where  from  the 
language  of  the  will  testator's  intention  to  give 
the  devisee  a  life  estate  only  fairly  appeared. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  Si  1372-1378;    Dec  Dig.  t  608.*] 
8.  Wills  (§  608*)— Constbuction- Bulk  in 

Shellkt'b  Case — Continoent  Remaindbbs. 
Where  testator  devised  land  to  bis  son  to 
hold  the  same  during  the  term  of  his  natural 
life,  with  the  right  to  use  the  rents  and  profits 
dnring  such  time,  provided  he  should  have  no 
power  to  convey  the  property  for  a  period  longer 
than  his  life,  and  that,  at  his  death,  the  prop- 
erly should  descend  to  "his  heirs,"  the  devisee 
took  only  a  life  estate  with  a  contingent  remain- 
der over  to  his  heirs,  which  remainder  could  not 
vest  until  the  devisee's  death. 

[Ed.  Note. — For  other  cases,  see  Wills,  Cent. 
Dig.  U  1372-1378;    Dec.  Dig.  f  608.*] 

4.  LiFK  Estates  (8  23*)  —  Conveyance  —  Ef- 
fect—Contingent   Remain  DEBS— Tebhina- 

TtON. 

Where,  under  a  devise  to  testator's  son,  re- 
mainder to  his  heirs,  the  son  took  but  a  life  es- 
tate with  a  contingent  remainder  to  his  heirs, 
which  did  not  vest  in  them  until  the  son's  death, 
bis  attempted  conveyance  of  the  fee  during  his 
lifetime  was  ineffective  to  bar  the  remainders. 

[EM.  Note.— For  other  cases,  see  Life  Estates, 
Cent  Dig.  I  43 ;   Dec.  Dig.  S  23.*] 
e.  RmcAOTDEBS  (5  4*)- "Contingent  Reuain- 

DEBB' '— Vali  dixy  . 

A  devise  to  one  for  life,  remainder  to  his 
heirs,  creates  a  valid  contingent  remainder,  the 
enjoyment  depending  on  a  contingency  which 
must  necessarily  happen  by  lapse  of  time. 

[Ed.  Note. — For  other  cases,  see  Remainders, 
Cent  Dig.  {  2;  Dec.  Dig.  i  4.* 

For  other  definitions,  see  Words  and  Phrases, 
Tol.  2,  pp.  1503-1306;  vol.  8,  p.  7616.] 

6.  Remaindebs  (i  17*)— Action  to  Recoteb 
Real  Estate— Accbual. 

Where  land  was  devised  to  testator's  son 
for  life,  remainder  to  his  heirs,  and  he  during 
his  life  attempted  to  convey  the  fee,  the  interest 
of  the  remaindermen  not  having  vested  until  the 
son's  death,  limitations  did  not  begin  to  run 
against  their  right  to  recover  the  land  from 
the  son's  grantees  until  that  time. 

[Ed.  Note. — For  other  cases,  see  Remainders, 
Cent  Dig.  {16:  Dec.  Dig.  i  17;*  Limitation  of 
Actions,  Cent  Dig.  {  231.] 

7.  Estoppel   (8  93*>— Contingent   Reuain- 

DEBMEN— FaILUBB  TO  ASSEBT  CLAIM. 

Where  land  was  devised  to  testator's  son 
for  life,  remainder  to  his  heirs,  and  the  son  at- 
tempted to  con^y  the  fee,  failure  of  the  re- 
maindermen to  assert  any  claim  to  the  land 
while  the  son's  grantees  were  improving  it,  etc., 
prior  to  the  soirs  death,  was  insuflScient  to  es- 
top them  to  recover  the  land  thereafter. 

[Ed.  Note. — For  other  cases,  see  Estoppel, 
Cent  Dig.  88  264-276;   Dec.  Dig.  8  83.*] 

Appeal  from  District  Court,  Marshall  Coun- 
ty; C.  B.  Bradshaw,  Judge. 

Action  to  quiet  titlcf.  Plaintiffs'  demurrer 
to  portions  of  defendants'  answer  was  sus- 
tained, and,  on  the  election  of  defendants 
not  to  plead  over,  a  decree  was  entered  for 


the  plaintiffs  under  a  stipulation  to  that  ef- 
fect, with  the  reservation  of  the  right  of  de- 
fendants to  subsequently  make  claim  for  im- 
provements under  the  occupying  claimants 
act  The  defendants  appeal  from  the  de- 
cree.   Affirmed. 

F.  L.  Meeker  and  Dudley  &  Coffin,  for  ap- 
pellants.    Struble  &  Stiger,  for  appellees.' 

McCLAIN,  J.  John  Westcott,  under  whose 
will  plaintiffs  claim  title  to  an  undivided 
three-fourths  interest  in  the  premises  in  con- 
troversy, a  described  parcel  of  lot  8,  block 
11,  in  the  city  of  Marshalltown,  died  In  1865, 
leaving  surviving  him  a  widow  and  certain 
children  named  in  his  will.  The  provisions 
of  this  will,  which  was  duly  probated,  so  far 
as  they  affected  the  title  to  the  premises  In 
controversy,  were  that  the  widow  should 
have  a  life  estate  therein,  and  that  said 
premises  should  pass  at  her  decease  to  bis 
son,  Charles  Alfred  Westcott,  "to  have  and 
to  become  possessed  of  the  same  at  the 
death  of  my  wife,  Anna  Westcott,  and  to 
hold  the  same  during  his,  Charles  Alfred 
Westcott's,  natural  life."  Other  parcels  of 
said  lot,  as  well  as  of  lot  7  in  the  same  block, 
disposed  of  in  similar  manner  by  the  will, 
were  devised  in  similar  terms  to  other  chil- 
dren, and  the  will  contained  this  concluding 
paragraph:  "My  said  children  are  to  have 
the  use,  rents  and  profits  of  their  portions 
of  said  lots  numbered  seven  and  eight  in 
block  No.  eleven  of  the  town  of  Marshall, 
respectively  during  the  terms  of  their  natur- 
al lives.  They  are  to  have  no  power  to  con- 
vey or  dispose  of  the  same,  their  respective 
portions  for  a  longer  term  than  during  their 
natural  lives  respectively.  At  the  death  of 
my  children  aforesaid  their  respective  por- 
tions of  said  lots  numbered,  seven  and  eight 
descend  to  their  heirs  respectively,  said  heirs 
to  have  absolute  title  unto  their  respective 
portions."  Charles  Alfred  Westcott  died  In- 
testate in  December,  1906,  leaving  surviving 
him  four  children,  William,  bom  in  1876, 
Clare,  born  in  1879,  Leon,  bom.  in  1881,  and 
Bemice  (now  Mrs.  Nail),  born  in  1883.  Pri- 
or to  the  commencement  of  this  suit,  Wil- 
liam had  conveyed  any  interest  which  he 
had  In  the  premises  to  Leon,  and  Clare  had 
conveyed  his  similar  Interest  to  defendant 
F.  L.  Meeker.  In  1875  Anna  Westcott  con- 
veyed her  life  estate  to  Timothy  Brown  and 
J.  F.  Meeker,  and  on  the  same  date  Charles 
Alfred  Westcott,  then  a  single  person  and 
in  possession  of  the  premises  in  controversy, 
purported  to  convey  the  same  in  fee  with 
usual  covenants  of  warranty  to  said  Brown 
and  Meeker,  who  thereupon  entered  into, 
possession,  which  continued  until  1876,  when 
Brown  sold  his  interest  to  Me^er,  after 
which  date  Meeker  continued  in  exclusive 
possession  until  his  death  In  1908.  The  de- 
fendants are  the  widow  and  heirs  of  J.  F. 


•For  other  eases  im  suae  topic  and  section  NUMBER  in  Dec.  A  Am.  Digs.  1907  to  data,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


966 


122  NOBTHWESTBRN  REPORTEB. 


(Iowa 


Me«ker,  claiming  through  him  the  absolute 
and  unqualified  ownership  of  the  premises. 
The  claim  of  plaintiff  Is  that  on  the  death 
of:  their  father,  Charles  Alfred  Westcott,  the 
contingent  remainder  wtdch  their  grand- 
father In  his  will  had  declared  should  de- 
scend to  their  father's  heirs  became  absolnte- 
Ij'  vested  In  them  to  the  extent  of  an  undiv- 
ed  three-fourths  thereof,  the  other  one-fourth 
having  as  already  stated  been  acquired  in 
the  meantime  by  one  of  the  defendants. 

Three  propositions  ore  relied  upon  for  ap- 
pellants: First,  that  while  John  Westcott 
described  the  estate  devised  to  his  son, 
Ogarles  Alfred  Westcott,  as  a  "life  estate," 
t^  take  effect  after  the  life  estate  given  to 
his  widow,  and  directed  that  at  the  death  of 
said  son  the  remainder  in  fee  should  vest  in 
Sia  heirs,  the  legal  effect  of  such  direction 
tfas  to  vest  In  Charles  Alfred  Westcott  a  re- 
mainder in  fee  simple  after  the  termination 
of  the  widow's  life  estate,  notwithstanding 
the  spedflc  language  of  the  will  that  his 
said  son  should  have  the  use,  rents,  and 
profits  of  the  premises  during  the  terms  of 
bi^  natural  life,  with  no  power  to  convey 
or  dispose  of  the  same  for  a  longer  term 
than  during  his  natural  life;  second,  that, 
e^en  though  the  will  should  be  construed  as 
creating  a  contingent  remainder  in  the  heirs 
of  said  son,  such  remainder  was  cut  off  by 
the  conveyance  of  the  son  before  the  birth  of 
children;  third,  that  the  heirs  of  the  son 
are  barred  and  estopped  from  asserting  any 
title  to  the  premises  after  10  years  of  open, 
notorious,  and  adverse  possession  by  them 
and  those  under  whom  they  claim  title. 

1.  The  first  proposition  relied  upon  for 
appellants  amounts  simply  to  this:  That  by 
the  rule  In  Shelley's  Case  the  language  of 
the  will  purporting  to  create  a  life  estate 
in  Charles  Alfred  Westcott  and  a  remainder 
in  fee  in  his  heirs  must  be  construed  as  cre- 
ating a  fee-simple  estate  in  the  devisee  nam- 
ed, notwithstanding  the  explicit  statements 
in  the  concluding  paragraph  of  the  will  that 
such  devisee  sbould  have  no  other  rights  in 
or  power  over  the  property  than  those  which 
pertain  to  life  tenancy.  This  identical  ques- 
tion was  before  this  court  In  the  case  of 
Wescott  V.  Binford,  104  Iowa,  645,  74  N. 
W.  18,  65  Am.  St  Rep.  530,  involving  an- 
other pared  of  property  devised  by  testator 
to  another  child  by  similar  language.  In 
that  case  the  court  referred  to  two  of  its 
previous  decisions,  in  which,  as  contended 
by  counsel  in  argument,  the  rule  had  been 
recognized  as  in  force  In  this  state  and  point- 
ed out  the  fact  that  both  of  those  cases  in- 
volved deeds  of  conveyance  and  not  wills, 
.nnd  it  then  proceeded  to  say  that  there  is  a 
material  distinction  between  wills  and  deeds 
of  conveyance  in  the  application  of  the  rule* 
in  those  Jurisdictions  in  which  the  rnle  is 
recognized  to  be  In  force.  Authorities  are 
cited  In  the  opinion  to  the  proposition  thaf 
the  rule  should  not  be  so  applied  as  to  de- 
feat the  intention  of  the  testator  as  express- 


ed by  other  language  tiian  tliat  employed  is 
creating  a  remainder  over  In  heirs  after  a 
life  estate  In  the  ancestor.  If  we  are  to  ad- 
here to  the  views  expressed  in  Wescott  v. 
Binford,  further  discussion  of  the  applica- 
bility In  the  rule  in  Shelley's  Case  Is  unnec- 
essary. But  in  the  Weecott-Binford  Case 
the  court  expressly  held  that  there  was  no 
controlling  decision  In  this  state  as  to  wheth- 
er the  rule  in  Shelley's  Case  should  be  recos- 
nlzed  as  a  rule  of  property,  and  assumed 
only  to  hold  that  it  was  not  applicable  in  the 
controversy  before  the  court,  avoiding  any 
announcement  of  opinion  as  to  whether  it 
was  applicable  In  this  state  to  conveyances. 
Since  that  case  was  decided  we  have  ex- 
pressly held  that  the  rule  is  in  force  In  this 
state  as  to  conveyances.  Doyle  v.  Andis, 
127  Iowa,  36,  102  N.  W.  177,  69  L.  E.  A.  953. 
And  it  is  now  contended  that  tills  decision 
overrules  the  decision  in  Wescott  v.  Bin- 
ford; that  the  adoption  of  the  rule  in  Shel- 
ley's Case  as  to  conveyance  necessarily  re- 
sults in  its  application  to  wills;  and  that 
we  must  now  hold  that  as  a  rule  of  property 
Charles  Alfred  Westcott  had  a  fee  under  his 
father's  will,  and  not  a  life  estate  with  re- 
mainder to  his  heirs.  We  are  not  able  to 
readi  this  conclusion. 

The  rule  in  Shelley's  Case  had  unquestion- 
ably been  recognized  as  a  rule  of  property  in 
the  courts  of  England  for  three  or  four  cen- 
turies t>efore  those  courts  determined  the 
question  whether  it  was  a  rule  In  the  con- 
struction of  wills,  and  when  in  1769  the  ques- 
tion was  directly  and  definitely  presented 
to  the  Court  of  King's  Bench,  then  presided 
over  by  Lord  Mansfield,  in  Perrin  v.  Blake, 
4  Burr.  2579  (s.  c,  1  Bl.  672),  the  Chief 
Justice,  with  the  concurrence  of  two  of  the 
justices,  held  that  the  rule  should  not  be 
so  applied  as  to  defeat  the  manifest  inten- 
tion of  the  testator.  From  this  conclusion 
one  of  the  Justices  dissented.  The  case  was 
taken  on  appeal  to  Exchequer  Chamber,  where 
six  of  the  Justices  agreed  in  reversing  the  de- 
cision of  the  court  of  King's  Bench,  while  two 
of  them  favored  an  afilrmance.  An  appeal 
was  taken  to  the  House  of  Lords,  but  no 
decision  was  ever  reached  in  that  court;  the 
appeal  having  been  dismissed  in  1777  as  the 
result  of  a  compromise  between  the  parties. 
The  controversy  as  to  whether  the  rule  in 
Shelley's  Case  should  bo  recognized  as  a 
rule  of  property,  which  has  given  rise  to 
elaborate  discussion  in  the  opinions  of  courts 
and  in  law  treatises,  seems  to  have  commenc- 
ed with  the  division  of  the  court  in  Perrin 
V.  Blake.  But  the  only  question  in  that  case 
as  appears  from  the  published  reiKtrts  we 
have  purporting  to  give  the  views  of  the  Jus- 
tices as  announced  at, the  time  was  whether 
the  language  in  the  will  in  question,  in  sub- 
stance the  same  as  that  found  In  the  will  of 
John  Westcott,  prohibiting  alienation  by  the 
children  of  the  testator,  who  were  by  the  lan- 
guage of  the  will  to  have  a  life  estate  only, 
was  a  sufllclent  indication  of  an  intmtion  on 


Digitized  by  VjOOQ  l€ 


Iowa) 


WESTCOTT  ▼.  MEEKER. 


967 


his  part  that  the  devise  to  sacfa  children  with 
remainder  over  to  other  heirs  should  not 
in  accordance  with  the  then  recognized  doc- 
trine of  the  rule  In  Shelley's  Case  create  a 
fee  estate  in  such  children.  As  appears  by 
the  brief  statement  of  the  case  in  Burrow's 
Report  (and  the  statement  in  W.  Blackstone's 
Reports  is  even  briefer  and  less  specific), 
counsel  for  plaintiff  argued  that,  though  the 
Intent  of  the  testator  be  ever  so  plain  from 
other  parts  of  the  will,  the  rule  holds  that 
the  Inheritance  must  vest  in  the  ancestor; 
while  counsel  for  defendant  contended  that,  if 
the  testator's  Intent  was  manifest  from  other 
parts  of  the  will,  the  word  "heirs"  might  be 
construed  as  word  of  description,  and  the 
heirs  should  take  the  inheritance  as  pur- 
chasers. The  majority  of  the  C!ourt  of  King's 
Bench  agreed  with  the  contention  for  de- 
fendant, while  in  Exchequer  CHiamber  the 
majority  held  with  the  plaintiff.  The  opinion 
of  Mr.  Justice  Blackstone,  which  was  post- 
humously published  in  Hargreave's  Law 
Tracts,  as  expressing  the  views  of  the  ma- 
jority of  the  justices  in  Exchequer  CHiamber 
(see  10  Eng.  Ruling  Cases,  689),  including  a 
discussion  of  the  reason  and  propriety  of  the 
role  itself,  and  it  seems  to  be  assumed  that 
Lord  Mansfield's  statement  of  the  views  of 
the  majority  of  the  justices  In  King's  Bench 
threw  discredit  on  the  mle  in  Shelley's  Case 
as  a  rule  of  property.  But  the  actual  deci- 
sion of  a  majority  of  the  jtutlces  in  the 
Court  of  King's  Bench  was  that  the  inten- 
tion of  the  testator  as  expressed  In' his  will 
should  be  regarded  as  controlling,  while  a 
majority  of  the  justices  in  Exchequer  Cham- 
ber thought  his  intent  should  be  disregarded 
in  view  of  the  fact  that  he  attempted  to 
create  a  life  estate  with  remainder  over  to  the 
heirs  of  the  devisee  which  it  was  thought  he 
could  not  do.  See  6  Cruise's  Digest  (Green- 
lears  Ed.)  318.  Even  Mr.  Justice  Blackstone 
conceded  that,  "If  the  intent  of  the  testator 
manifestly  and  certainly  appeared  (by  plain 
description  or  necessary  implication  from 
other  parts  of  the  will)  that  the  heirs  •  ♦  • 
should  take  by  purchase  and  not  descent," 
then  the  devise  for  life  to  the  ancestor  did 
not  create  in  him  a  fee,  but  he  thought  that 
the  mere  description  by  the  testator  of  an 
Intent  that  the  ancestor  should  not  dispose 
of  the  property  for  a  longer  period  than  his 
life  was  not  sufiSclent  to  control  the  applica- 
tion of  rule. 

It  is  to  be  noticed  that  the  date  of  the  de- 
cision in  Perrin  v.  Blake  does  not  make  it 
an  authority  as  to  what  the  common  law  was 
<m  this  question  at  the  time  the  common 
law  was  brought  to  this  country.  This  de- 
cision and  subsequent  decisions  of  the  English 
courts  adhering,  though  with  constant  dltB- 
culty,  to  the  decision  in  Exchequer  Chamber, 
are  of  no  greater  weight  with  us  than  the 
decisions  on  the  same  question  which  have 
been  announced  by  the  courts  of  our  sister 
states  in  wliich  the  same  question  has  been 
considered.    Conceding,  as  we  have  expressly 


held  In  Doyle  v.  Andis,  supra,  tbat  the  rule 
in  Shelley's  Case  is  a  part  of  the  common 
law  in  determining  the  effect  of  convenience, 
and  therefore  a  rule  of  property  in  all  the 
states  of  the  Union  in  which  the  common  law 
on  that  subject  was  accepted,  so  far  as  not 
modified  by  statute^  It  is  op«i  to  us,  and  it 
is  our  plain  duty  notwithstanding  the  final 
determination  in  Doyle  v.  Andis  that  the  rule 
in  Shelley's  Case  is  a  part  of  the  common 
law,  to  decide  whether  that  rule  is  conclu- 
sive in  the  construction  of  wills  and  over- 
rides the  Intention  of  the  testator  clearly  ex- 
pressed by  language  indicating  his  purpose 
that  the  devisee  for  life  shall  not  have  the 
power  to  convey  any  Interest  in  the  proper- 
ty which  shall  extend  beyond  the  term  of  his 
life.  A  decision  at  this  time  that  the  ex- 
pressed intention  of  the  testator  shall  con- 
trol, as  against  the  rule  in  Shelley's  Case  ap- 
plied to  the  construction  of  a  conveyance, 
would  be  in  no  way  Inconsistent  with  our 
recent  decision  in  Doyle  v.  Andis  that  such 
mle  as  applied  to  conveyances  has  been  with 
us  a  part  of  the  common  law  and  a  rule  of 
property  binding  upon  the  courts  of  this  state 
in  determining  the  rights  under  conveyances 
made  prior  to  the  recent  rei>eal  of  the  rule 
by  statutp.  See. Acts  82  Gen.  Assem.  p.  167, 
c.  159.  In  other  words,  we  can  still  adhere 
to  the  conclusions  expressed  in  Wescbtt  v. 
Binford,  supra,  without  in  any  way  impairing 
or  modifying  the  views  since  expressed  in 
Doyle  V.  Andis.  Although  the  conclusions  of 
the  English  courts  adhering  to  the  decision 
of  Exchequer  Chamber  In  Perrin  v.  Blake 
were  quoted  in  our  opinion  in  Doyle  t.  Andis, 
they  were  so  quoted  only  as  indicating  the 
continued  recognition  by  the  English  courts 
of  the  rule  as  applied  to  conveyances,  and 
nothing  is  said  in  that  case  to  indicate  an 
intention  to  overrule  the  case  of  Wescott  v. 
Binford,  or  to  accept  the  conduslons  of  the 
English  courts  relating  to  the  application  of 
that  rule  to  defeat  the  expressed  intention 
of  the  testator. 

Even  in  the  English  courts  it  has  been  con- 
ceded by  all  the  judges  from  Mr.  Justice 
Blackstone  to  the  present  time  that,  if  the 
intention  of  the  testator  was  expressed  in 
appropriate  language,  such  intention  would 
control  as  against  the  application  of  the  rule 
in  Shelley's  Case.  Thus  in  Jordon  v.  Adams, 
9  C.  B.  N.  S.  i83,  and  Van  Orutten  v.  Fox- 
well  L.  B.  App.  Cases  (1887)  658,  it  was  prac- 
tically conceded  in  all  the  opinions  handed 
down  that  the  intention  of  the  testator 
should  control ;  the  controversy  being  only  as 
to  whether  the  language  in  the  will  descrip- 
tive of  the  person's  intent  by  using  the  word 
"heirs"  was  a  sufficient  indication  of  an  in- 
tention Inconsistoit  with  the  application  of 
the  rule  in  Shelley's  Case.  The  various  opin- 
ions in  the  English  courts  to  the  effect  that 
language  expressly  limiting  the  power  of 
disposal  on  the  part  of  the  devisee  to  whom 
under  the  language  of  the  Instrument  only 
a  life  estate  is  given  to  such  disposal  aa  he 


Digitized  by  LjOOQ  l€ 


968 


122  NORTHWESTERN  REPORTER. 


(Iowa 


mlt^t  make  of  a  life  estate  are  not  Incon- 
sistent with  the  recognition  of  the  paramount 
Importance  of  the  description  of  the  testator's 
intent  The  general  rule  recognized  In  all 
the  courts  that  the  testator's  Intent  shall  be 
carried  out  when  It  Is  ascertainable  from 
the  language  used  by  him,  taking  the  will  as 
a  whole,  is  uniformly  applied,  even  as  against 
the  construction  which  would  be  given  under 
the  rule  In  Shelley's  Case  to  the  specific 
description  of  the  estates  devised  to  the  life 
tenant  and  his  helr^,  respectively.  For  this 
purpose  wills  are  to  be  construed  more  lib- 
erally than  deeds.  Page  on  Wills,  g  661;  1 
Jones  on  Real  Property,  {  606;  2  Underbill 
on  Wills,  i  668. 

Thus  in  Ware  v.  Mlnot  (Mass.)  88  N.  E. 
1061,  the  court  uses  this  language:  "The 
rule  for  the  construction  of  wills  followed  by 
courts  In  recent  times  is  to  ascertain  the  in- 
tent of  the  testator  from  the  whole  instru- 
ment, attributing  due  weight  to  all  its  lan- 
guage, and  then  give  eflTect  to  that  intent  un- 
less prevented  by  some  positive  rule  of  law, 
rather  than  to  try  to  make  the  Interpreta- 
tion of  particular  words  or  phrases  in  one 
instrument  square  with  that  before  given  to 
somewhat  similar  words  used  by  some  one 
else  under  other  surroundings  to  accomplish 
a  more  or  less  dUferent  end.  McCurdy  v. 
McCallum,  186  Mass.  464,  72  N.  B.  76.  A 
few  combinations  of  words  have  become  so 
fixed  in  their  meaning  by  long  and  unvarying 
use  as  to  be  rules  of  property.  But  ordinary 
canons  for  the  interpretation  of  wills,  having 
been  established  only  as  aids  for  determining 
testamentary  intent,  are  to  be  followed  only 
Bo  far  as  they  accomplish  that  purpose,  and 
not  when  the  result  would  be  to  defeat  it" 
And  see  Schmidt  v.  Jewett  (N.  T.)  88  N.  B. 
1110.  In  Lord  v.  Comstock,  240  III.  492,  88 
N.  E.  1012,  the  court  recognizes  the  Intent 
of  the  testator  as  controlling,  though  it  limits 
itself  in  ascertaining  that  Intent  to  a  tech- 
nical interpretation  of  the  terms  used  in  de- 
scribing the  Interests  devised,  and  manifest- 
ly thereby  defeats  the  real  Intent  of  the  tes- 
tator, a  learned  lawyer  (the  late  Harvey  B. 
Hurd  of  the  Chicago  bar),  thus  throwing  dis- 
credit, as  it  seems  to  us,  upon  the  correctness 
of  the  application  of  such  technical  rules  in 
ascertaining  the  testator's  intent.  In  addi- 
tion to  the  authorities  cited  in  Wescott  v. 
Blnford,  supra,  to  the  efTect  that  testator's 
intention  will  be  carried  out  even  as  against 
the  result  otherwise  indicated  by  the  strict 
language  of  the  rule  as  applied  to  the  grant- 
ing clause  of  the  will,  see  Chelton  v.  Hender- 
son, 9  GUI  (Md.)  432;  Findlay  v.  Riddle,  8 
Bin.  (Pa.)  139,  5  Am.  Dea  355;  Swain  t. 
Rascoe,  25  N.  C.  200,  88  Am.  Dec.  720. 

We  are  perfectly  content,  therefore,  to  ad- 
here to  the  construction  of  this  will  given  in 
Wescott  V.  Blnford,  supra,  and  we  are  satis- 
fied that  the  opinion  of  the  majority  of  the 
court  in  the  more  recent  case  of  Doyle  v. 
Andls,  snpra,  is  not  inconsistent  with  the 
condnslon  there  reached.    Therefore  we  hold 


that  Charles  Alfred  Westcott  had  only  a  life 
estate  In  the  premises  in  question,  and  that 
he  did  not  have  a  fee  title  when  he  executed 
his  conveyance  to  Brown  and  Meeker. 

2.  The  contention  for  appellants  that,  even 
though  Charles  Alfred  Westcott  took  under 
the  will  only  a  life  estate,  nevertheless  bis 
conveyance  by  warranty  deed  to  defendants' 
ancestor  cnt  off  the  remainder  to  his  heirs. 
Is  expressly  based  by  counsel  on  the  views  of 
this  court  announced  in  Archer  v.  Jacobs, 
126  Iowa,  467,  101  N.  W.  195.  But  In  that 
case  the  remainder  after  the  life  estate  cre- 
ated by  the  wUl  was  to  the  children  of  tbe 
life  tenant  who  had  children  living  at  tbe 
time  the  will  took  effect,  and  the  court  held 
that  the  remainder  was  vested,  although 
there  was  an  uncertainty  as  to  the  extent  of 
the  interests  which  such  children  would  come 
Into  enjoyment  of  on  the  death  of  the  life 
tenant,  owing  to  the  uncertainty  as  to  wheth- 
er other  children  should  not  be  subsequently 
bom.  The  distinction  between  that  case  and 
the  one  before  us  is  manifest  There  the 
children  In  being  took  a  vested  remainder 
subject  to  a  condition  subsequent  which 
might  lessen  the  extent  of  their  interest 
therein  on  the  one  liand  or  possibly  enlarge 
it  on  the  other,  and  we  held  that  a  com- 
bination of  the  life  estate  and  this  vested 
remainder  subject  to  condition  subsequent 
and  the  possible  reversionary  Interest,  all  in 
one  person,  cut  out  any  remote  contingent  in- 
terest of  children  yet  unborn;  while  in  this 
case  the  remainder,  instead  of  being  vested, 
remained,  and  was  necessarily  contingent, 
until  the  termination  of  the  life  estate  of 
Charles  Alfred  Westcott,  for  until  that  time 
no  one  could  dalm  as  his  heir. 

We  do  not  deem  it  necessary  to  go  Into 
any  elaboration  on  the  subject  of  contingent 
remainders.  Contingencies  may  be  of  vari- 
ous characters  and  the  kind  of  contingent  re- 
mainder referred  to  in  Archer  v.  Jacobs  is 
quite  different  in  Its  characteristics  than 
that  involved  in  this  case.  It  is  sufficient  to 
say  that  in  the  case  before  ns  there  was  a 
remainder  entirely  contingent,  and  necessa- 
rily remaining  contingent,  until  the  termina- 
tion of  the  life  estate  as  to  what  particular 
person  or  persons  should  be  entitled  to  en- 
Joy  It  It  could  only  be  rendered  certain  In 
that  respect  by  the  termination  of  the  life 
estate.  It  was  perfectly  valid  for  the  con- 
tingency on  which  its  enjoyment  depended 
must  necessarily  arise  In  time;  that  is, 
Charles  Alfred  Westcott  must  die  and  most 
as  presumption  of  law  leave  heirs  surviving 
him,  but  the  contingency  as  to  what  particu- 
lar person  or  persons  should  turn  out  to  be 
his  heirs  was  one  inherent  in  the  very  nature 
of  the  remainder  and  impossible  of  deter- 
mination until  his  death.  Birth  of  children 
to  Charles  Alfred  Westcott  was  not  at  all 
essential  to  the  ultimate  vesting  of  the  re- 
mainder. He  would  have  heirs  whoi  he  died, 
whether  he  had  children  or  not  To  hold 
that  a  conveyance  by  Charles  Alfred  Westcott 


Digitized  by  LjOOQ  l€ 


-Iowa) 


WESTCOTT  T.  MEEKER. 


during  bis  lifetime  would  cut  otf  the  remain- 
der to  bis  beirB  would  be  simply  to  bold  tbat 
a  remainder  to  beira  could  not  be  created. 
When  we  bave  reacbed  tbe  conclusion  tbat 
the  rule  in  Sbelley's  Case  does  not  apply  to 
merge  the  remainder  to  heirs  in  tbe  life  es- 
tate of  Charles  Alfred  Westcott,  we  bave 
necessarily  decided  that  a  conveyance  by 
Charles  Alfred  Westcott  during  his  lifetime 
would  not  defeat  tbe  remainder.  Tbe  cases 
relied  on  for  appellants  are  not  in  point  be- 
cause all  of  them  involve  remainders  to  chil- 
dren of  tbe  life  tenant  with  the  result  that 
the  remainder  became  vested  at  once  if  there 
were  living  children  (subject  of  course  to  a 
condition  subsequent),  or  might  vest  before 
the  termination  of  tbe  life  estate  by  birth  of 
children  to  tbe  life  tenant.  See  especially 
Anthracite  Savings  Bank  v.  Lees,  176  Pa.  402, 
35  Atl.  197 ;  People's  Loan,  etc..  Bank  v.  Gar- 
Ilngton,  54  S.  G.  413,  32  S.  B.  513,  71  Am.  St 
Rep.  800;  Hubbird  v.  Coin,  137  Fed.  822,  70 
G.  G.  A.  320.  It  Is  plain  tbat  under  the  de- 
vise to  Charles  Alfred  Westcott  with  remain- 
der to  bis  heirs,  such  remainder  to  heirs  be- 
ing valid,  though  contingent,  a  conveyance 
by  Charles  Alfred  Westcott  during  his  life- 
time, although  he  purported  to  convey  tbe 
fee  title,  could  not  cut  off  the  remainder. 

3.  The  claim  for  appellants  based  on 
the  statute  of  limitations  is  that  conceding 
Charles  Alfred  Westcott  to  have  bad  only  a 
life  estate  (following  the  life  estate  to  his 
mother),  ai>d  tbat  there  was  a  remainder  in 
fee  to  his  heirs,  such  remainder,  though  con- 
tingent at  tbe  death  of  testator,  became  vest- 
ed on  tbe  birth  of  children  to  him,  and  that 
these  plaintiffs,  bis  children,  could  bave 
brought  an  action  to  quiet  title  against  those 
under  whom  defendants  claim  title  holding 
adversely  under  a  deed  from  Charles  Alfred 
Westcott  purporting  to  convey  the  fee  title, 
and  tbat  such  action,  not  having  been  brought 
within  the  statutory  period  nor  within  one 
year  after  tbe  plaintiffs  attained  their  ma- 
jority, cannot  now  be  maintained.  If  tbe 
remainder  bad  been  to  tbe  children  of  Charles 
Alfred  Westcott;  the  argument  would  have 
been  pertinent  to  the  facts.  Whether  It  would 
bare  been  sound  we  need  not  determine,  for 
there  Is  a  fundamental  difference  between  a 
remainder  to  children  of  tbe  devisee  for  life 
and  a  remainder  to  the  heirs  of  such  dev- 
isee. If  the  remahider  provided  for  in  this 
wUI  bad  been  to  tbe  children  of  Charles  Al- 
fred Westcott,  there  would  bave  been  no  oc- 
casion to  discuss  tbe  applicability  of  tbe  rule 
in  Shelley's  Case,  for  tbat  rule  has  no  refer- 
ence to  a  grknt  for  life  with  remainder  over 
to  the  children  of  tbe  life  tenant.  Brown  r. 
Brown,  125  Iowa,  218,  101  N.  W.  81,  67  L.  R. 
A.  629;  Hubbird  v.  Goln,  137  Fed.  822,  70 
O.  O.  A.  320.  It  is  not  pretended  tbat  there 
is  anything  In  tbe  language  in  the  vrill  under 
consideration  to  Indicate  tiiat  by  reference  to 
tbe  heirs  of  Charles  Alfred  Westcott  tbe  tes- 
tator Intended  to  designate  hie  children,  or 
tbat  the  usual  meaning  of  tbe  word  "heirs" 


was  to  be  restricted  so  as  to  apply  only  to 
bis  children  as  such  heirs.  If  he  had  re- 
mained unmarried,  he  would  have  had  heirs 
at  tbe  time  of  bis  death.  But  during  bis 
lifetime  be  bad  no  taeirs  on  the  fundamental 
principle  that  there  are  no  heirs  to  a  living 
person.  In  other  words,  the  remainder  to 
the  heirs  of  Charles  Alfred  Westcott  was 
contingent  In  this  sense  that  until  his  death 
It  could  not  be  determined  what  person  or 
persons  corresponded  with  that  description 
so  as  to  be  entitled  to  enter  into  tbe  proper- 
ty on  the  termination  of  his  life  estate.  But 
instantly  on  bis  death  tbe  remainder  vested 
in  those  persons  who  at  that  time  were  enti- 
tled to  take  his  property  as  bis  heirs.  It  is 
plain.,  therefore,  that  his  children  when  they 
were  born  acquired  no  vested  Interest.  They 
bad  no  right  In  possession  nor  In  expectancy 
which  they  could  assert  as  against  defend- 
ants' ancestor  in  possession  of  tbe  property 
under  a  deed  from  tbelr  father,  the  life  ten- 
ant. Had  the  remainder  been  devised  to 
Charles  Alfred  Westcott's  children,  then  it 
might  well  be  tbat  the  possession  under  bis 
deed  should  be  regarded  as  adverse  to  them 
under  tbe  reasoning  adopted  in  tbe  case  of 
Elder  v.  McClaskey,  70  Fed.  529,  17  a  C.  A. 
251,  to  which  counsel  have  called  our  atten- 
tion. But,  until  tbe  determination  of  tbe 
life  estate.  It  was  impossible  to  know  who 
would  take  as  heirs,  and  therefore  no  inter- 
est became  vested  until  that- time  under  the 
devise  to  heirs.  Robinson'  v.  Palmer,  90  Me. 
246,  38  Atl.  103;  Madison  v.  Larmon,  170 
HI.  65.  48  N.  B.  658,  62  Am.  St  Rep.  366; 
2  Underbill  on  Wills,  {  610.  We  bave  no  oc- 
casion, therefore,  to  discuss  tbe  question 
whether  on  tbe  vesting  of  a  contingent  rfr< 
malnder  during  tbe  life  estate  upon  which  It 
is  limited  tbe  remainderman  may  bring  an  - 
action  to  quiet  title  against  a  grantee  of  tbe 
life  tenant,  and  may  be  barred  by  tbe  stat- 
ute of  limitations  on  his  failure  to  do  so 
within  tbe  prescribed  period  of  limitation 
for  such  actions.  If  prior  to  the  death  of 
Charles  Alfred  Westcott  these  plaintiffs  had 
brought  an  action  to  quiet  title  against  de- 
fendants' ancestor  in  possession  of  tbe  prem- 
ises, a  complete  answer  would  have  been 
that  as  yet  no  interest  bad  vested  In  them, 
tbat  they  might  not  be  the  persons  coming 
within  tbe  description  "heirs"  of  Charles  Al- 
fred Westcott  at  his  death,  and  that  they 
bad  no  Interest  in  tbe  property  to  sustain 
any  such  action.  We  bave  no  occasion, 
therefore,  to  discuss  tbe  cases  of  Marray  v. 
Qulgley,  119  Iowa,  6,  92  N.  W.  869,  97  Am. 
St  Rep.  276,  Crawford  v.  Mels,  123  Iowa, 
610,  99  N.  W.  186,  66  L.  R.  A.  154,  101  Am. 
St  Rep.  837,  and  Hubbird  v.  Goin,  137  Fed. 
822,  70  O.  C.  A.  320,  on  which  counsel  rely. 
The  same  considerations  dispose  of  tbe 
contention  tbat  plaintiffs  became  estopped  to 
assert  any  claim  to  the  property  by  failure 
to  assert  such  dalm  against  defendants  or 
those  from  whom  they  took  title,  knowing 


Digitized  by  VjOOQ  l€ 


970 


122  NOBTHWESTBRN  RBPORTBR. 


(lovra 


them  to  be  In  possession,  making  raluable 
Improvements  under  a  claim  of  title.  As  al- 
ready said,  until  the  death  of  their  father, 
they  had  no  interest  In  the  property.  They 
had  not  yet  come  wltliin  the  description  of 
his  "heirs."  Their  father  died  only  within 
one  year  preceding  the  Institatlon  of  this 
action,  and  it  Is  not  contended  that  anything 
which  occurred  subsequent  to  his  death 
would  give  rise  to  an  estoppel  as  against  the 
rights  of  plaintiffs  to  maintain  such  action. 
The  decree  of  the  lower  court  Is  therefore 
afBrmed. 


LUSB  ▼.  liCSB. 

(Supreme  Gonrt  of  Iowa.     Oct  28,  1909.) 

L  DisuissAi.  AND  Nonsuit  (|  32*)— Rioai  to 

WrTHORAW    €k>TTRT]IBCLAIlf. 

Under  Code  1897,  |  3767,  providing  that 
a  defendant  may  at  any  time  berore  final  sub- 
mission dismiss  his  counterclaim,  and  section 
3768k  providing  that  any  party  to  any  claim 
may  dismiss  it  in  vacation  and  the  court  shall 
enter  the  dismissal  on  the  record,  a  defendant 
may  during  vacation  dismiss  bis  counterclaim 
by  notice  to  the  clerk,  and  it  is  thereupon  the 
cleric's  duty  to  enter  such  dismissal  of  record, 
and  where  the  clerk  of  the  district  court  re- 
ceived a  letter  from  defendant  in  a  divorce  ac- 
tion, addressed  to  the  "county  clerk,"  which  was 
plainly  intended  for  the  cleik  of  the  district 
court,  asking  him  to  withdraw  defendant's  coun- 
terclaim and  motion  for  temporary  alimony,  be 
was  required  to  enter  of  record  such  dismissal, 
and  his  failure  to  do  so  would  not  defeat  the 
effect  of  such  dismissal. 

[Ed.  Mote. — For  other  cases,  see  Dismissal  and 
Nonsuit,  Cent  Dig.  t  64;   Dec.  Dig.  {  32.*] 

2.  DiSMISBAI,  AND  NoNSxriT  (|  43*)— Recaix 

OT  DlSMISSAI.. 

A  subsequent  communication  by  defendant 
to  the  clerk  recalling  her  letter  directing  a  dis- 
missal of  her  counterclaim  and  motion  tor  tem- 
porary alimony  was  of  no  effect. 

[Ed.  Note. — For  other  cases,  see  Dismissal  and 
Nonsuit  Cent  Dig.  {  84 ;   Dec.  Dig.  {  43.  *J 

3.  DivoBCE  (I  210*)— DisiassAi,  of  Counteb- 

OLAIIC     FOB    TkMPOBABT     AXIMONT  —  WITH- 

DBAWAL  or  Deposit  fob  Alimont. 

After  defendant  in  divorce  bad  written  the 
clerk  to  withdraw  ber  answer,  counterclaim,  and 
motion  for  temporary  alimony,  her  act  in  sub- 
sequently filing  a  trial  notice  was  not  inconsist- 
ent therewith,  and  plaintiff  was  entitled  there- 
after to  withdraw  from  the  court  money  deposit- 
ed for  payment  of  temporary  alimony. 

[Ed.  Note.— For  other  cases,  see  Divorce,  Cent 
Dig.  {{  610,  eil;    Dec.  Dig.  i  210.*] 

4.  Divobce  (I  222*)  — AonoNB— Attobnbt'b 

Fees  to  Wife. 

Attorney's  fees  to  a  wife  sued  for  divorce 
were  properly  refused  where  not  claimed  until 
after  she  had  withdrawn  her  answer,  counter- 
claim, and  motion  for  temporary  alimony. 

[Ed.  Note. — For  other  cases,  see  Divorce,  Cent 
Dig.  {  644 ;   Dec.  Dig.  {  222.*] 

Appeal  from  District  Court,  Monona  Coun- 
ty; John  F.  Oliver,  Judge. 

Action  for  divorce  on  the  ground  of  de- 
sertion. Defendant  answered,  denying  the 
allegations  of  plain  tiffs  petition,  and  inter- 
posing a  counterclaim  for  divorce  from  plain- 


tUt  on  the  ground  of  misconduct  tending  to 
impair  defendant's  health.  The  court  sus- 
tained a  dismissal  by  plalntlfl  of  his  cause 
of  action,  and  found  that  there  had  also  been 
a  dismissal  by  defendant  of  her  counterclaim, 
and  thereupon  entered  Judgment  against 
plaintiff  for  costs.  The  defendant  appeals. 
Affirmed. 

a  R.  Metcalfe,  for  appellant  T.  B.  Iiuti 
and  C.  E.  Cooper,  for  appellee. 

McCIiAIN,  J.  At  the  January  term  of  the 
district  court,  issues  were  Joined  by  the  fil- 
ing of  defendant's  answer,  denying  plaintifTs 
cause  <tf  action,  and  interposing  a  counter- 
claim for  divorce  from  plaintiff,  to  whldi 
counterclaim  the  plaintiff  filed  a  reply,  deny- 
ing the  allegations  thereof.  At  that  term 
plaintiff  filed  a  motion  to  set  aside  an  order 
allowing  defendant  $50  temporary  alimony, 
alleging  that  the  motion  for  temporary  ali- 
mony had  never  been  assigned  for  hearing, 
and  plaintiff  bad  had  no  notice  thereof ;  and, 
further,  that  plaintiff  had  a  good  defense 
to  said  motion.  At  the  April  term  following, 
plaintiff  paid  to  the  clerk  the  sum  of  SoO 
for  the  use  of  defendant  In  preparing  for 
trial,  and  the  case  was  continued  to  the  next 
term  of  court;  but  In  the  meantime  the 
clerk  of  the  district  court  had  on  March  12. 
1908,  during  vacation,  received  a  communi- 
cation signed  by  defendant  dated  on  the 
previous  day,  addressed  to  him,  as  "County 
Clerk,  Onawa,  Iowa,"  In  the  following  lan> 
guage:  "Sir:  Withdraw  my  answer,  counter- 
claim, cross-bill,  motion  and  claim  for  tempo- 
rary alimony."  On  the  day  following  the  re- 
ceipt and  filing  of  this  communication,  the 
clerk  received  and  filed  another  communica- 
tion over  defendant's  signature,  containing  the 
same  address,  dated  March  12,  in  the  follow- 
ing language:  "Sir:  I  recall  the  letter  I  wrote 
to  you  the  Uth  Instant  I  have  found  out 
that  I  have  been  frightened  and  Imposed 
upon."  On  August  15th  following,  trial  no- 
tice was  filed  by  defendant  On  August  29th 
following,  plaintiff  withdrew  from  court  with- 
out any  order  therefor,  and  without  the 
knowledge  of  defendant  the  sum  of  $50 
which  had  been  paid  in  for  the  use  of  de- 
fendant during  the  April  term.  On  Septem- 
ber 7th  following,  plaintiff  filed  a  motion 
dismissing  his  petition  without  prejudice  and 
without  withdrawal  of  appearance  In  the 
proceeding  to  resist  defendant's  counterclaim, 
and  on  the  next  day,  over  defendant's  pro- 
test the  court  sustained  platntlfTs  motion, 
and  made  a  finding  that  defendant  had  with- 
drawn her  counterclaim  and  all  claims  for 
temporary  alimony,  and  ordered  the  cause 
to  be  stricken  from  the  docket  entering 
Judgment  against  plaintiff  for  costs. 

Counsel  for  defendant,  appealing  from  this 
order  and  Judgment,  insists  that  the  writing 
over    defendant's    signature,    received    and 


•For  other  eases  ««•  sun*  topic  and  section  NUUBBR  in  Dec.  ft  Am.  Digs.  UOT  to  dat*.  *  Roportar  ladezaa 


Digitized  by 


Google 


lowa> 


IN  RE  WINSLOWS  WILL. 


971 


aied  by  the  derk  on  Mardb  12th,  did  not  con- 
stitute a  dismlBsal  of  her  connterclalm  be- 
cause insufficient  In  Itself,  and  because  It 
was  withdrawn  by  the  communication  receiv- 
ed and  filed  by  the  clerk  on  the  following 
day,  and  he  assigns  error  in  the  refusal  of 
the  court  to  require  the  plaintiff  to  return  in- 
to court  for  defendant's  benefit  the  $S0 
withdrawn  therefrom  and  to  allow  defend- 
ant's attorney  $100  for  preparation  of  the 
case  for  trial;  relief  In  this  respect  having 
been  asked  by  defendant  in  a  motion  some- 
what Irregular  in  character  filed  in  response 
to  plaintiff's  motion  to  dismiss. 

1.  The  correctness  of  the  court's  action  In 
dismissing  defendant's  cross-petition  depends 
on  the  determination  of  the  question  wheth- 
er the  first  letter  received  by  the  clerk  from 
the  defendant  constituted  a  dismissal  of  her 
cross-petition.  By  Code,  |  3764,  it  is  provid- 
ed that:  "An  action  may  be  dismissed,  and 
such  dismissal  shall  be  without  prejudice  to 
a  future  action:  (1)  By  the  plaintiff  before 
the  final  submission  of  the  case  to  the  Jury 
or  to  the  court  when  the  trial  is  by  the 
court  *  *  • "  By  section  3767  it  Is  pro- 
vided that  "the  defendant  may  at  any  time 
before  the  final  submission  of  the  cause  to 
the  Jury  or  to  the  court  when  the  trial  is  by 
the  court  dismiss  his  counterclaim  without 
prejudice,"  and  in  the  following  section  It  is 
provided  that  "any  party  to  any  claim  may 
dismiss  the  same  in  vacation,  and  the  clerk 
shall  make  the  proper  entry  of  dismissal  on 
the  record."  These  sections  evidently  con- 
template the  power  and  right  of  a  party  at 
any  time  during  vacation  to  dismiss  his  ac- 
tion or  counterclaim  by  proper  communica- 
tion to  the  clerk  of  his  Intention  to  do  so, 
and  it  Is  thereupcm  the  duty  of  the  clerk  to 
enter  such  dismissal  of  record.  No  action 
of  the  court  in  the  premises  is  required  to 
make  such  dismissal  effective.  The  commu- 
nication In  ■  writing  received  by  the  clerk 
from  defendant,  although  addressed  to  the 
"county  clerk,"  was  plainly  Intended  for  the 
clerk  of  the  district  court,  and  he  was  re- 
quired on  receiving  such  communication  to 
enter  of  record  the  dismissal  of  defendant's 
counterclaim  or  cross-petition,  and  a  with- 
drawal of  her  claim,  included  therein,  for 
temporary  alimony,  and  the  failure  of  the 
derk  to  perform  the  ministerial  duty  of  mak- 
ing such  record  would  not  defeat  the  effect  of 
such  dismissal.  From  the  time  that  this 
communication  was  received  by  the  clerk 
and  filed,  defendant's  counterclaim  or  cross- 
petition  and  her  demand  for  temporary  ali- 
mony were  withdrawn,  and  nothing  remained 
for  disposition  by  the  court,  save  plaintiffs 
original  action  for  divorce,  as  to  which  de- 
fendant had  interposed  an  answer  by  way 
of  denial.  The  subsequent  communication 
by  defendant  to  the  clerk  recalling  her  let- 
ter directing  a  dismissal  of  her  counterclaim, 
cross-bill,  and  motion  for  temporary  alimony 


was  of  no  effect  Before  the  receipt  at  this 
communication  by  the  clerk,  defendant's  de- 
mand for  affirmative  relief  had  already  been 
effectually  withdrawn.  After  the  dismissal 
by  defendant  she  could  not  by  such  commu- 
nication reinstate  her  demand  for  such  re- 
lief. 

2.  The  action  of  defendant  in  causing  a 
trial  notice  to  be  filed  in  August  was  not  in- 
consistent with  the  withdrawal  of  her  an- 
swer, counterclaim,  and  motion  for  tempora- 
ry alimony,  for  without  any  resistance  by 
defendant  it  would  be  necessary  for  plaintiff 
to  establish  his  ground  for  divorce  by  the 
Introduction  of  proper  evidence.  Therefore, 
when  the  plaintiff  on  August  29th  withdrew 
from  the  court  $50  deposited  by  way  of  pay- 
ment of  temporary  alimony,  he  was  within 
his  rights,  Inasmuch  as  defendant's  claim 
for  such  alimony  had  been  withdrawn.  Aft- 
er such  withdrawal  the  clerk  would  not 
have  been  Justified  in  paying  to  defendant 
the  money  so  deposited.  Therefore  the  court 
did  not  err  in  dismissing  plaintiffs  action 
as  prayed  by  him,  and  in  refusing  to  allow 
attorney's  fees  to  defendant ;  such  claim  for 
attorney's  fees  not  having  been  made  until 
after  defendant's  answer,  counterclaim,  and 
motion  for  temporary  alimony  had  been 
withdrawn. 

The  ruling  and  Judgment  of  the  trial  court 
were  correct  and  they  are  affirmed. 


In  re  WINSLOW'S  WILL. 
(Supreme  Court  of  Iowa.     Oct.  28,  1909.) 

1.  Oath  (|  4*)— Substitutes— Pbofessionai, 
Statement  bt  Attobnet. 

A  professional  statement  of  an  attorney, 
when  received  by  the  coort,  is  equivalent  to  an 
oath. 

[Ed.  Note.— For  other  cases,  see  Oath,  Cent 
Dig.  i  12;    Dec.  Dig.  {  4.»] 

2.  Trial  (§  107»)  —  Appeabancb  of  Counsel 
Afteb  Sweabino  Jubt  —  Business  Rela- 
tion TO  JUBOES — EiXCLUSION  OF  ATTOBNET. 

'Where  in  a  will  contest  proponents  object- 
ed to  a  certain  attorney  appeanne  in  the  case 
for  contestants  after  the  jury  had  been  sworn, 
but  did  not  ask  to  re-ezamme  the  jury  for  cause, 
ner  to  exercise  any  other  or  further  peremptory 
challenges  on  account  of  the  attorney's  appear- 
ance, and  he  stated  professionally  to  the  court 
that  he  was  not  an  attorney  for  any  of  the  ju- 
rors, proponents  were  not  entitled  to  have  him 
excluaed  from  the  case. 

[Ed.  Note.— For  other  cbms,  see  Trial,  Dec. 
Dig.  {  107.»] 

3.  Evidence  (J  471*)— Conclusion  op  Wit- 

NESS 

In  a  will  contest  on  the  ground  of  unsound- 
ness of  mind  of  testatrix  and  undue  Influence, 
testimony  of  nonexpert  witness  as  to  how  tes- 
tatrix's condition  at  a  given  time  compared  with 
her  appearance  and  condition  at  another,. though 
in  the  nature  of  a  conclusion,  was  admissible 
evidence  as  a  fact 

lEd.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  i  2168;  Dec  Dig.  i  471  ;•  Witness- 
es, Cent  Dig.  §  833.] 


•r«r  other  cues  ne  Mune  topic  and  lectlon  NUMBER  In  Dec.  *  Am.  Dlgi.  1907  to  data,  *  Reporter  Indexes 


Digitized  by  LjOOQIC 


972 


122  NORTHWESTERN  HEPOETER. 


(lowi 


4.  WiTHESSM  (I  159*)  —  Tbansaction  with 
DiCBMNT— Negativing  Tkanbaction. 

Code  1897,  |  4604,  forbidding  testimony  aa 
to  personal  transactions  or  communications  witli 
one  deceased,  does  not  proliibit  the  allowing 
of  facta  which  n^atire  a  transaction  with  one 
deceased. 

[Eld.  Note.— For  other  cases,   see  Witnesses, 
Cent.  Dig.  {  668;    Dec.  Dig.  |  159.*] 

5.  WiTNKSSES  (J  159*)— TBANSAcnow  with 
Deckdent— Negativing  Tbansaction. 

Where  a  will  stated  that  a  witness  had  had 
all  that  was  coming  to  him  from  the  estate,  snch 
witness  was  competent,  in  a  contest  of  the  will, 
to  testify  that  he  had  received  nothing. 

[Ed.   Note.— For  other  cases,   see   Witnesses, 
Cent.  Dig.  i  668;   Dec.  Dig,  {  159.*] 

6.  Appbai.  and  Ebbob  (8  969*)— Disobetion 
OF  Tbial  Coubt— LnoTiRO  Numbeb  of  Wit- 
nesses. 

It  is  within  the  sonnd  discretion  of  the 
trial  court,  after  due  notice  to  counsel,  to  limit, 
the  number  of  witnesses  to  be  produced  on  either 
side  on  a  certain  issue,  and  the  exercise  of  such 
discretion  will  not  be  interfered  with  on  appeal 
where  no  prejudice  appears. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  J  3845;  Dec.  Dig.  §  969.*] 

7.  Appeai,  and  E:b80B  (S  1047*)— Habicless 
Ebbob— Obder  of  Pboof. 

Where  evidence  is  competent  and  relevant 
to  the  issues,  the  appellate  court  will  not  ordi- 
narily reverse  because  of  the  order  in  which  it 
was  Introduced. 

[Ed.  Note. — ^For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  i  4132 ;    Dec.  Dig.  J  1047.*] 

8.  Wnxs  (8  60*)— Teotamentabt  Capaoitt— 
Undbbstanding  as  to  Pbopbbtt  and  Ob- 
jects OF  Bountt. 

If  testator,  when  making  his  will,  has  suf- 
ficient capacity  to  attend  to  the  ordinary  affairs 
of  life,  yet  regarding  snbiects  connected  with 
the  testamentary  dispoaitfon  of  his  property, 
and  the  natural  objects  of  his  bounty,  is  not 
of  sound  mind,  and  in  making  the  will  is  so  far 
influenced  by  such  mental  unsonndness  as  to  be 
unable  rationally  to  comprehend  the  nature  and 
effect  of  the  provisions  of  the  will,  it  will  not  be 
sustained. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  81  96-100;    Dec.  Dig.  8  50.*] 

9.  Evidence  (8  671*)— Expebt  Testimony— 
Weight— Mental  Capacitt. 

In  a  will  contest,  testimony  of  medical  men 
of  experience  in  such  cases  as  to  the  mental 
condition  of  testator  at  or  about  the  time  tlie 
will  was  executed,  based  on  knowledge,  observa- 
tion, or  treatment,  may  be  given  more  weight 
tlian  the  testimony  of  nonprofessional  witnesses, 
though  that  is  for  the  jury  to  determine. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  8  2396;  Dec.  Dig.  8  671;*  Wills, 
Cent.  Dig.  8  159.] 

10.  Wnxs  (8  31*)— Testamentabt  Capacity- 
Tbansaction  of  Business. 

It  requires  less  mental  capacity  to  make 
a  will  than  to  make  a  contract  or  a  deed  or  to 
transact  business  generally. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  88  67,  68 ;  Dec.  Dig.  8  31.*] 

11.  Wnxs  (8  384*)  —  Contest  in  Pbobate 
ConsT—H ASHLESS  Ebbob— iNSTBucnoNs. 

Where  in  a  will  contest  the  true  rule  as  to 
testamentary  capacity  was  given,  the  refusal  to 
instruct  that  it  requires  less  mental  capacity  to 
make  a  will  than  to  make  a  contract  or  deed, 
etc.,  was  not  prejudicial,  since,  without  some 
standard  whereby  to  determine  what  degree  of 


capacity  is  required  to  make  a  contract  or  deed, 
etc.,  the  instruction  amounted  to  nothing. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  8  858;    Dec.  Dig.  8  384.*] 

12.  Wills  (8  329*)— Contest— I  nstbuctions- 
Pbesumftions. 

In  a  will  contest,  instructions  that  the  bur^ 
den  was  on  contestants  to  show  mental  unsound- 
ness, that  if  they  failed  to  do  so  the  contest 
must  fail,  and  that  the  will  was  executed  in  due 
form,  and  that  the  verdict  should  be  for  pro- 
ponents unless  contestants  established  nnsoand- 
ness  of  mind  and  mental  incapacity,  were  equiv- 
alent to  saying  that  soundness  of  mind  is  pre- 
sumed. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent 
Dig.  8  776;   Dec.  Dig.  8  329.*] 

13.  Wills  (8  386*)-Contest— Review— Ques- 
tions of  Fact. 

A  will  contest  on  the  ground  of  mental  in- 
capacity and  undue  influence,  being  an  action 
at  law,  and  the  facts  being  for  the  jury,  the 
.verdict  will  not  be  interfered  with  on  appeal, 
i>)less  shown  to  be  so  unsupported  by  the  tes- 
tin!«ny  as  to  justify  the  inference  that  it  was 
the  mult  of  sympathy,  passion,  or  prejudice. 

[Ed.  Note.— For  other  cases,  see  Wills,  Cent. 
Dig.  8  859;   Dec  Dig.  8  386.*] 


Evans,  C.  J.,  dissenting. 

Appeal  from  District  Court,  Jasper  Comi- 
ty;  K.  E.  Wilcockeon,  Judge. 

This  is  a  contest  over  what  purports  to  be 
the  last  will  and  testament  of  Sarah  B.  Wins- 
low,  deceased.  C.  F.  liorgan,  Oeo.  T.  Arm- 
strong, and  Amzl  Hlxon  a£  proponents  filed 
this  instrument  for  probatfe:,  and  A.  Arm- 
strong, Louis  Armstrong,  Alic^  Swihart,  and 
Mary  Wormley,  sons  and  daughters  of  tes- 
tatrix, filed  objections  to  the  probate  thereof, 
based  upon  the  ground  that  testandz  was  on- 
sound  of  mind,  and  that  the  will  was  obtaiiir 
ed  through  undue  influence.  The  sase  was 
tried  to  a  jury,  resulting  in  a  verwict  for 
contestants,  and  probate  of  the  will  was  de- 
nied.   Proponents  appeal.    Affirmed.    \ 

McElroy  &  Cox,  E.  C.  Ogg,  and  M.  R.  w&m- 
mer,  for  appellants.  J.  C.  Hawkins,  ]&  J* 
Salmon,  and  O.  M.  Tripp,  for  aj^llecs.  \ 

DEEMER,   J.     The  alleged  will  was  ^- 
ecuted  on  February  12,  1906,  and  was  wit-*" 
nessed  by  three  witnesses,  to  wit,  ESie  Mc- 
Lellan,  F.  E.  Meredith,  and  O.  C.  Meredith. 
Mrs.  Winslow  died  July  21,  1908,  and  the  will 
was  almost  immediately  offered  for  probate. 
The  case  came  on  for  trial  on  objections  flled' 
December  9,  1908.    After  the  Jury  had  been 
impaneled  and  sworn,  and  counsel  for  pro- 
ponents bad  made  their  opening  statement 
to  the  jury,  one  O.  M.  Tripp,  Esq.,  who  had 
not  theretofore  entered  an  appearance  for 
the  contestants,  appeared  In  the  case,  and 
the  following  record  was  made  with  refer- 
ence thereto :  "The  proponents  object  to  the- 
appearance  of  G.  M.  Tripp  as  an  attorney  In 
this  cause  on  behalf  of  the  contestants,  for 
the  reason  that  no  appearance  by  him  was 
made  until  after  the  jury  was  Impaneled  and 
sworn,  and  after  the  proponents'  opportunity 


•For  other  coses  see  sam*  topic  and  section  NVUBBR  In  Dec.  &  Am.  Digs.  U07  to  date,  *  Reporter  Isdsiw- 


Digitized  by 


Google 


Iow«) 


IN  EB  WLNSLOW'S  WILL. 


973 


to  examine  the  separate  Jurors  for  cause  had 
been  waived.  B.  J.  Salmon  states:  'I  will 
state  to  the  court  professionally  that  I  spoke 
to  Mr.  TrlM>  about  assisting  In  the  case,  to 
take  my  place  during  the  intermission  ^  at 
recess,  after  the  jury  was  Impaneled,  'for 
personal  reasons,  which  were  then  apparent 
to  me,  that  I  could  not  probably  remain  in 
the  case  during  the  entire  trial,  and  Mr.  Mc- 
Elroy  at  the  time  was  talking  to  Mr.  Haw- 
kins In  front  of  the  Judge's  stand,  and  that 
I  stated  to  Mr.  Mc£3roy,  or  In  his  presence 
and  hearing,  that  Mr.  Tripp  was  going  to  be 
called  into  the  case,  and  I  supposed  that  he 
heard  it'  W.  O.  McElroy  states:  'I  state 
professionally  that  no  statement  was  made 
to  me  personally,  or  after  the  Jury  was  im- 
paneled and  sworn.  I  did  overhear  Mr.  Haw- 
kins speaking  to  Mr.  Salmon  about  having 
Mr.  Tripp  appear,  but  I  didn't  hear  the  com- 
pletion of  any  arrangements  concerning  the 
matter;  and  the  attorneys  for  the  propo- 
nents have  not  consented,  In  any  maimer  or 
in  any  way,  to  the  appearance  of  Mr.  Tripp.' 
The  Court  states:  'The  court  now  asks  of 
Mr.  Tripp  as  to  whether  or  not  any  member 
of  this  Jury  Is  bis  client  at  this  time,  or 
whether  he  has  any  business  In  court,  or 
pending  before  this  court,  in  which  he  is  in- 
terested for  any  member,  or  appears  for  any 
member  of  this  trial  panel  in  this  case.'  Q. 
M.  Tripp  states :  'There  is  not  a  member  of 
this  Jury  for  which  I  am  acting  in  any  ca- 
pacity whatever,  and  there  is  no  member  of 
this  Jury  that  I  am  in  any  maimer  related  to, 
and  none  of  the  jury  that  are  in  my  employ, 
or  are  my  tenants.  I  have  no  personal  re- 
lations with  any  member  of  the  jury.'  W. 
O.  McEIroy  states :  'The  proponents  object  to 
being  deprived  of  their  right  to  examine  the 
Jurors  for  cause  and  under  oath,  and  of  being 
deprived  of  their  right  to  make  peremptory 
challenges  based  in  part  upon  the  relations 
which  they  believe  to  have  existed  between 
O.  M.  Tripp  and  some  of  the  jurors.'  The 
Court  states:  'Which  objections  of  the  pro- 
ponents are  heard  by  the  court,  and  consider- 
ed, and  are  by  the  court  overruled.  To  all 
of  which  the  proponents  duly  excepted.' " 
Complaint  is  made  of  this  ruling,  and  It  Is 
argued  that  proponents  had  no  opportunity 
to  challenge  any  of  the  jurors  for  cause  by 
reason  of  their  being  clients  of  Tripp,  or  to 
challenge  peremptorily  without  giving  any 
reason  therefor.  They  claim  that,  had  he 
appeared  before  the  jury  was  sworn,  they 
would  have  had  the  right  to  challenge  any 
Juror  for  cause  who  may  have  been  a  client 
of  Tripp's  or  to  challenge  him  peremptorily, 
although  not  a  cUent,  because  of  some  per- 
sonal relations  between  them.  That  such 
fact  would  be  a  ground  of  challenge  for  cause 
Is  undoubtedly  correct.  See  Code,  |  3688. 
But  Tripp  stated  professionally  that  he  was 
not  an  attorney  for  any  of  the  jurors.  This 
statement  was  the  equivalent  of  an  oath,  and 
was  so  received  by  the  district  court  Rice 
T.  Griffith,  9  Iowa,  638.    This  bein»  true  It 


affirmatively  appears  that  no  ground  of  chal- 
lenge for  cause  existed;  hence  no  prejudice 
resulted.  Proponents  did  not  ask  to  re-ex- 
amine the  jury  for  cause;  nor  did  they  ask 
to  exercise  any  other  or  further  peremptory 
challenges  on  account  of  Tripp's  appearance. 
Had  they  done  so,  the  court  would,  in  its 
discretion,  have  been  Justlfled  in  granting 
such  request  As  they  did  not  do  so,  and  as 
It  affirmatively  appears  that  no  ground  of 
challenge  for  cause  existed,  proponents  were 
not  entitled  to  have  Tripp  excluded  from 
the  case,  and  the  ruling  of  the  court  In  this 
respect  was  correct. 

2.  Many  rulings  on  the  reception  and  re- 
jection of  testimony  are  complained  of,  to 
the  more  important  of  which  we  shall  now 
turn  our  attention.  It  is  claimed  that  vari- 
ous nonexpert  witnesses  were  allowed  to  give 
their  opinions  regarding  the  testatrix's  con- 
dition of  mind,  without  confining  themselves 
to  the  facts'  narrated  and  detailed  by  tb&a. 
We  have  examined  all  the  questions  pro- 
pounded in  the  light  of  these  objections,  and 
find  that  the  record  does  not  sustain  the  con 
tentlon. 

3.  Several  nonexpert  witnesses  were  asked 
to  state  as  to  how  testatrix's  condition  at  a 
given  time  compared  with  her  appearance 
and  condition  at  another.  This  was  objected 
to  as  calling  for  a  conclusion,  and  therefore 
Incompetent  True,  It  was  In  the  nature  of 
a  conclusion,  but  it  was  of  such  a  character 
as  to  be  admissible  evidence  as  a  fact. 
Manatt  v.  Scott  106  Iowa,  203,  76  N.  W.  7W, 
68  Am.  St  Rep.  293,  and  cases  cited. 

4.  Alexander  and  Louis  Armstrong  ate 
sons  of  Sarah  Wlnslow.  They  were  both 
contestants,  and  were  each  called  as  wit- 
nesses. Alexander  was  asked  these  ques- 
tions, to  which  answers  were  given  as  Indi- 
cated: "State  whether  or  not  at  any  time, 
aside  from  the  property  you  received  from 
your  father's  estate,  you  received  from  any 
other  source  any  property  or  estate?"  The 
witness  answered,  "I  did  not"  "Mr.  Arm- 
strong, In  the  will  in  controversy  in  this 
case,  there  is  a  statement  as  foll6ws:  'I 
give  and  bequeath  to  Alexander  Armstrong 
the  sum  of  one  dollar,  he  having  had  all  that 
would  in  any  manner  be  coming  to  him  from 
my  estate' — ^you  may  state  whether  or  not 
you  received  any  money  or  property  from 
your  mother's  estate.  A.  I  never  received 
a  dollar,  not  a  cent"  The  same  questions 
were  propounded  to,  and  practically  the 
same  answers  were  made  by  Louis  Arm- 
strong. These  questions  were  objected  to  as 
incompetent,  and  the  witnesses  as  incompe- 
tent, under  section  4604  of  the  Code,  forbid- 
ding testimony  as  to  personal  transactions 
or  communications  with  one  deceased,  etc. 
We  have  consistently  held  that  the  statute 
does  not  exclude  proof  of  facts  Inferentlally 
showing  transactions  with  one  deceased. 
Perhaps  we  had  better  say  that  the  statute 
does  not  prohibit  the  showing  of  facts  which 
negatives  a  transaction  with  one  deceased. 


Digitized  by  LjOOQ  l€ 


974 


122  NORTHWESTBBN  REPORTBB. 


(Iowa 


See  McElhenney  t.  Hendricks,  82  Iowa,  657, 
48  N.  W.  1056;  Campbell  v.  OoUlns,  133 
Iowa,  152,  110  N.  W.  435;  Walkley  v.  Clarke, 
107  Iowa,  451,  78  N.  W.  70.  MoreoTcr,  the 
testatrix  made  declarations  In  her  will  with 
reference  to  transactions  with  these  wit- 
nesses which  proponents  were  relying  npon, 
and  as  to  these  matters  H  was  competent  for 
the  witnesses  to  testify.  Wood  t.  Brolliar, 
40  Iowa,  591;  In  re  Estate  of  Edwards.  68 
Iowa,  431,  10  N.  W.  793;  Luehrsmann  r. 
Holngs,  60  Iowa,  708,  15  N.  W.  571;  In  re 
Perkins'  Estate,  100  Iowa,  216,  80  N.  W.  335. 
5.  After  proponents  bad  offered  many  wit- 
nesses to  support  testatrix's  sanity,  they 
produced  her  husband,  N.  O.  Winslow,  and 
he  was  asked  this  question:  "What  is  your 
opinion,  based  upon  the  facts  you  have  here 
stated,  as  to  whether  Sarah  E.  Winslow  was 
of  sound  or  unsound  mind  on  February  12, 
1906,  based  on  the  facts  you  have  here  stat- 
ed, and  these  facts  alone?"  Objection  was 
made  to  this  question,  and  the  record  dis- 
closes the  following  with  reference  thereto: 
"The  Court:  The  court,  before  the  answer 
of  the  witness  is  taken,  now  holds  that  the 
proponents  have  offered,  the  record  shows 
that  the  proponents  have  now  offered,  the 
testimony  of  at  least  one  dozen  nonexpert 
witnesses  to  give  an  opinion  upon  the  men- 
tal condition  of  the  deceased,  and  the  court 
now  rules  and  holds  that  he  will  permit  no 
further  nonexpert  witnesses  on  behalf  of 
proponents  to  give  an  opinion  as  to  the  men- 
tal condition  of  the  testatrix.  Thereupon 
the  objection  of  contestants  is  sustained. 
Mr.  McElroy:  Well,  let  me  enlarge  my  ex- 
ception a  little.  The  Court:  I  think  you 
have  had  16,  Mr.  McEIroy.  Mr.  McElroy: 
Well,  I  would  like  to  make  a  record,  that  is 
all.  The  proponents  except  on  the  ground 
that  they  were  not  notified  at  the  commence- 
ment of  this  trial  of  any  limitation,  and  for 
that  reason  have  been  deprived  of  the  priv- 
ilege of  asking  witnesses  considered  by  them 
as  best  qualified  to  answer  concerning  the 
soundness  or  unsoundness  of  the  mind  of 
Sarah  E.  Winslow  on  February  12,  1906. 
The  Court:  The  court  in  reply  to  counsel 
for  proponents  and  the  statement  which  he 
has  made  (this  can  be  included  in  the  rec- 
ord) now  says  that  on  at  least  two  different 
times,  both  to-day  and  on  yesterday,  he  call- 
ed counsel's  attention  to  the  fact  that  he  had 
Introduced  a  multitude  of  witnesses,  non- 
experts, who  had  testified  to  the  mental  con- 
dition of  the  deceased ;  that  at  both  times 
counsd  stated  to  the  court  that  he  had  but 
one  or  two  or  a  few  more  witnesses,  and  the 
court  permitted  him  to  Introduce  further 
testimony  upon  his  own  statement;  and  the 
court  further  says  that  to  follow  counsel's 
method  of  introducing  a  multitude  of  wit- 
nesses upon  this  one  proposition  would  take 
up  the  entire  term  of  court.  If  the  court  fol- 
lowed counsel's  ideas  in  this  matter.  Mr. 
McElroy:  Now,  then,  I  would  like  to  make 
a  little  more  record.     The  Court:     I  don't 


know ;  the  record  Is  made  now,  and  it  is  all 
the  record  that  will  be  made  on  this  qaes- 
tlon."  Now  whilst  it  would  have  been  bet- 
ter for  the  court  to  have  limited  the  number 
of.  witnesses  to  be  produced  on  either  side 
upon  the  issue  of  sanity  before  any  testi- 
mony was  taken,  or  at  least  before  propo- 
nents came  to  their  side  of  the  case  upon 
this  issue,  it  nevertheless  was  within  tlie 
sound  discretion  of  the  court,  after  due  no- 
tice to  counsel  to  make  some  limit,  even  aft- 
er pn^MHients  had  entered  upon  the  exam- 
inatltm  of  their  witnesses.  The  record  dis- 
closes that  tills  warning  was  given,  and  It 
also  shows  that,  even  after  this  ruling  was 
made,  proponents  were  permitted  to  intro- 
duce at  least  three  witnesses  upon  the  Issue 
of  mental  soundness.  No  prejudice  appears ; 
and,  in  the  absence  of  such  showing,  -we 
shall  not  reverse,  because  the  order  was 
manifestly  discretionary  with  the  trial  court 

6.  Complaint  is  made  of  some  of  the  sur- 
rebuttal  testimony  offered  by  contestants. 
There  Is  no  merit  In  these  contentions.  The 
testimony  was  clearly  in  rebuttal,  but  if  It 
were  not,  strictly  speaking,  surrebuttal,  we 
do  not  ordinarily  reverse  because  of  the 
order  in  which  the  testimony  is  received.  If 
it  be  competent  and  relevant  to  the  issues, 
appellate  courts  do  not,  as  a  rule,  consider 
the  question  as  to  this  order  in  which  it  was 
Introduced. 

7.  Certain  Instructions  given  by  the  trial 
court  are  complained  of,  and  it  is  also  claim- 
ed that  the  court  was  in  error  in  denying 
certain  requests  made  by  proponents'  coun- 
sel. Of  the  instructions  given,  7,  9,  and  15 
are  complained  of.  The  seventh  Instruction 
relates  to  the  issue  of  unsoundness  of  mind, 
and  attempts  to  define  what  the  law  regards 
as  mental  unsoundness  in  such  cases  as  this. 
It  follows  very  closely  the  rules  heretofore 
announced  by  this  court,  and  need  not  be 
set  out  In  full.  Contrary  to  appellants'  con- 
tention, it  does  not  cast  the  burden  upon 
proponents  of  showing  soundness  of  mind. 
Indeed  it  does  not  relate  to  the  matter  of 
burden  of  proof  at  all.  That  matter  was 
covered  in  the  sixth  instruction,  where  the 
burden  of  showing  mental  unsoundness  was 
clearly  placed  upon  contestants. 

Instruction  9  reads  in  this  wise:  "If  you 
should  find  from  the  evidence  that  the  tes- 
tatrix, at  the  time  of  the  making  of  the 
proposed  will,  had  sufficient  capacity  to  at- 
tend to  the  ordinary  affairs  of  life,  yet  that 
with  r^ard  to  subjects  connected  with  the 
testamentary  disposition  and  distribution  of 
her  property  and  the  natural  objects  of  her 
bounty  she  was  not  of  soimd  mind,  and  while 
laboring  under  such  unaoundnesB  of  mind 
she  made  the  will  in  question,  and  that  in 
making  it  she  was  so  far  influenced  or  con- 
trolled by  audi  unsoundness  of  mind  as  to 
be  unable  rationally  to  comprehend  the  na- 
ture and  effect  of  the  provisions  of  the  said 
will,  and  was  thereby  led  to  make  such  pro- 
posed will  as  she  did,  then  you  would  be 


Digitized  by  VjOOQ  l€ 


Iowa) 


m  EB  WINSLOWS  WILL. 


975 


justified  in  finding  that  it  was  not  the  last 
vrlU  and  testament  of  tbe  said  Sarah  E. 
Wlnalow."  There  Is  no  fault  in  this  of  which 
proponents  may  justly  complain.  It  an- 
nounces a'  proper  rule  of  law,  and  was  ap- 
plicable to  the  case  made. 

Instruction  No.  15  read  as  follows:  "Med- 
ical men  have  been  called  as  witnesses  In 
this  case,  and  they  gave  an  opinion  as  to 
the  mental  condition  of  the  said  Sarah  B. 
Wlnslow,  founded  upon  personal  knowledge, 
observation,  and  treatment  of  tbe  deceased. 
Tbe  attending  physician  is  presumed  to  know 
tbe  state  of  mind  of  his  patient  This  tes- 
timony, and  the  testimony  of  medical  men, 
if  shown  by  the  testimony  to  be  men  of  ex- 
perience in  cases  of  this  character,  when 
they  have  testified  touching  the  mental  con- 
dition of  the  testatrix  at  or  about  the  time 
of  the  execution  of  tbe  will,  based  upon 
knowledge,  observation,  or  treatment,  may 
be  given  by  you  more  weight  and  considera- 
tion than  the  testimony  of  nonprofessional 
witnesses,  but  this  is  a  question  for  you  to 
determine,  and  you  are  to  say  and  determine 
the  value  and  weight  that  such  opinions  are 
to  have  with  you  bearing  upon  the  deceased's 
mental  condition,  and  give  them  weight  ac- 
cordingly." Considered  abstractly,  this  in- 
struction is  correct  Meeker  v.  Meeker,  74 
Iowa,  352,  37  N.  W.  778,  7  Am.  St  Rep.  489; 
Blake  v.  Rourke,  74  Iowa,  519,  38  N.  W.  392. 
There  is  a  verbal  inaccuracy  in  the  instruc- 
tion, but  this  could  not  have  misled  the 
jury.  Bnssell  v.  Ft  Dodge,  126  Iowa,  308, 
101  N.  W.  1126;  Harger  v.  Spofford,  46 
Iowa,  11;  Young  v.  Gas  Co.,  128  Iowa,  290, 
103  N.  W.  788.  But  appellants'  counsel  con- 
tend that  there  was  no  testimony  upon  which 
to  base  it  This  is  an  error.  Both  propo- 
nents and  contestants  produced  witnesses 
— doctors — who  had  treated  the  testatrix  at 
various  periods  of  her  life,  and  the  instruc- 
tion was  applicable  to  the  facts  shown. 
Moreover,  the  Instruction  is  quite  carefully 
guarded,  and  by  it  the  weight  of  the  testi- 
mony of  the  experts  was  left  to  the  jury. 
No  reversible  error  appears  in  the  instruct 
tion  given. 

As  to  those  refused,  proponents  asked  one 
to  the  effect  that  it  required  less  mental 
capacity  to  make  a  wlU  than  to  make  a 
contract  or  deed,  or  to  transact  business 
generally.  Abstractly  considered  this  is  a 
correct  rule  of  law.  Perkins  v.  Perkins,  118 
Iowa,  258,  90  N.  W.  55 ;  Meeker  v.  Meeker, 
74  Iowa,  852,  87  N.  W.  773,  7  Am.  St.  R^. 
489.  But  it  gives  the  jury  very  little,  if 
any,  aid  in  determining  the  question  of  ca- 
pacity to  make  a  will.  Without  some  stand- 
ard whereby  to  determine  what  degree  of 
capacity  is  required  to  make  a  contract  or 
deed,  or  to  transact  business  generally,  the 


instruction  amounts  to  nothing.  The  true 
rule  as  to  capacity  to  make  a  will  was  giv- 
en, and  this  matter  was  submitted  to  the 
jury.  The  requested  instruction  would  not 
have  given  any  aid  to  the  jury  in  solving 
that  question.  In  another  request  the  court 
was  asked  to  instruct  that  testatrix  was  pre- 
sumed to  be  of  sound  mind  at  the  time  the 
will  was  executed.  This,  too,  announces  a 
correct  rule  of  law;  but  the  court  instruct- 
ed, in  two  separate  paragraphs  of  its  Charge, 
that  the  burden  was  upon  contestants  to 
show  mental  unsoundness,  as  that  term  was 
used  in  the  instructions,  and  ttiat  if  they 
failed  to  do  so,  the  verdict  should  be  for  pro- 
ponents, and  the  "contest  must  fall."  Again 
the  court  stated  that  the  will  was  executed 
in  due  form,  and  that  the  verdict  should  be 
for  proponents,  unless  contestants  had  estab- 
lished unsoundness  of  mind  and  mental  in- 
capacity. This  was  the  equivalent  of  saying 
that  soundness  of  mind  was  presumed,  and 
no  prejudice  resulted  from  failure  to  give 
the  instmctlon  asked. 

Other  instructions  asked  were  given,  in 
substance,  in  the  charge,  and  need  not  be  fur- 
ther noticed. 

8.  The  last  point  made  is  that  the  ver- 
dict is  without  support  in  the  testimony. 
This  does  not  present  the  question  as  to 
what  we  think  of  the  verdict  or  as  to  what 
conclusion  we  would  arrive  at  from  the 
evidence  adduced.  The  only  point  for  our 
consideration  here  is.  Has  the  verdict  any 
substantial  support  in  the  testimony?  Were 
the  case  triable  de  novo  we  should  have  no 
hesitancy  In  finding  that  testatrix  was  not  ' 
so  unsound  of  mind  as  to  be  incapable  of 
making  a  will.  But  the  action  is  at  law, 
and  the  facts  are  of  necessity  for  a  jury. 
With  its  conclusions  the  parties  must  be 
content  unless  it  be  shown  that  the  verdict 
Is  BO  lacking  In  support  from  the  testimony  « 
as  to  justify  the  inference  that  it  was  the 
result  of  sympathy,  passion,  or  prejudice. 
Bever  v.  Spangler,  93  Iowa,  596,  61  N.  W. 
1072.  With  this  thought  in  mind  we  have 
gone  over  the  record  several  times  with  care, 
and  are  constrained  to  hold  that  there  was 
enough  testimony  to  take  that  issue  to  the 
jury. 

Having  now  noticed  all  tbe  material  and 
controlling  propositions  in  the  case  and  found 
no  prejudicial  error,  it  follows  that  the 
judgment  must  be,  and  it  is  affirmed. 

EVANS,  O.  J.  (dissenting).  I  feel  con- 
strained to  hold  that  the  evidence  in  this 
record  is  too  unsubstantial  to  sustain  the 
verdict  It  ought  not  to  be  that  a  will  may 
be  lightly  set  aside,  even  by  a  jury.  In  my 
opinion,  a  new  trial  should  be  ordered  on 
that  ground. 


Digitized  by 


Google 


976 


122  NOBTHWESTBBN  REPOBTEB. 


(Iowa 


OlfEUi  T.  ADAMS. 
(Supreme  Court  of  Iowa.    Oct.  28,  1909.) 

1.  LIBBI,  AWD    SlANDEB    {§    110*)— DlKENSEB— 

Tbdxh  in  JtrsTiTiCATZoN— Evidence. 

Where,  in  an  action  for  libel  in  the  pabli- 
cation  of  an  account  of  plaintiff's  alleged  in- 
carceration for  drunkenness,  stating  that  plain- 
tiff came  to  the  town  every  week  to  dispense 
intoxicating  liquor  to  the  citizens  and  rob  them 
of  their  money,  manhood,  and  responsibilities, 
etc.,  defendant  pleaded  the  truth  in  justification, 
evidence  that  for  eight  years  plaintiff  bad  been 
engaged  In  taking  orders  from  individuals  in 
Iowa  on  a  brewing  company  in  Kansas  City  for 
beer  and  whisky,  that  plaintiff  lived  in  another 
town,  but  visited  S.  on  Saturdays  and  Sundays 
to  take  orders  for  liquor,  and  collect  from  his 
patrons,  and  that  on  February  9,  1907,  be  was 
arrested  for  Intoxication  and  confined  in  jail, 
and  while  there  a  stove  in  the  jail  toppled  over 
and  was  broken,  was  admissible. 

[Ed.  Note.— For  other  cases,  see  L4bel  and 
Slander,  Cent  Dig.  {fi  307,  308;  Dec.  Dig.  § 
110.»] 

2.  I/IBEL  AND   Slandeb   (I   118*)  —  Speciai. 
Dauaoeb. 

Plaintiff  could  not  recover  for  loss  of  al- 
leged sales  of  intoxicating  liquors,  resulting 
from  defendant's  libelous  publications,  where 
the  sales,  if  made,  would  have  been  illegal. 

[Ed.  Note.— For  other  cases,  see  Libel  and 
Slander,  Dec.  Dig.  (  118.*] 

3.  Libel  and  Slandeb  (|  110*)  —  Iixegal 

Business— Evidence. 

Where,  in  an  action  for  libel,  resulting  from 
alleged  publications  concerning  plaintiff's  Illegal 
sales  of  liquors,  defendant  pleaded  the  truth  in 
justification,  evidence  directly  tending  to  sus- 
tain the  charge  that  plaintiff  was  engaged  in  an 
illegal  avocation,  and  to  justify  defendant's 
characterization  of  plaintiff  as  morally  and  so- 
cially corrupt,  was  admissible. 

[Ed.  Note.— For  other  cases,  see  Libel  and 
Slander,  Cent.  Dig.  §f  307,  308;  Dee.  Dig.  | 
110.*] 

4.  Evidence  (g  167*)— Best  and  Secondabt 
Evidence. 

Where,  in  an  action  for  libel,  in  publishing 
a  statement  concerning  plaintiff's  arrest,  it  ap- 
'  peared  that  no  information  had  been  filed  or 
warrant  issued,  an  inquiry  asking  plaintiff  of 
what  he  was  charged  when  arrested  called  for 
an  oral  accusation,  and  was  therefore  not  ob- 
jectionable as  calling  for  secondary  evidence. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  S  462 ;   Dec.  Dig.  g  157.*] 

5.  Evidence  ({  186*)— Best  and  Secondabt 
Evidence. 

Where,  in  an  action  for  libel.  It  appeared 
that  no  information  had  been  filed  or  warrant 
issued  when  plaintiff  was  arrested,  testimony  of 
the  justice  of  the  peace  that  plaintiff  was 
brought  before  him  was  admissible,  rather  than 
the  return  of  the  officer. 

[Ed.  Note. — For  other  cases,  see  Evidence, 
Cent.  Dig.  S  662;    Dec  Dig.  {  186.*] 

6.  Appeal  and  Ebbob  (§  926*)  —  Pbesuiif- 

TIONS. 

In  an  action  for  publishing  an  alleged  libel- 
ous statement  concerning  plaintiff's  arrest  for 
drunkenness,  a  ruling  admitting  evidence  identi- 
fying the  docket  of  the  justice  before  whom 
plaintiff  was  taken  when  arrested  must  be  pre- 
sumed to  have  been  correct,  in  the  absence  of 
any  showing  of  what  the  docket  contained. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  |  3740;  Dec  Dig.  §  026.*] 


7.  Evidence  (|  332*)  — DoomaNTS  — Becobd 
or  Conviction— Inoobbeot  Recitals. 

In  an  action  for  Ubel,  consisting  of  the  iinb- 
lication  of  a  statement  concerning  plaintiff's 
conviction  of  drunkenneas,  that  part  of  the  may- 
or's docket  properly  identified,  recording  plain- 
tiffs  conviction  of  drunkenness,  was  admissible 
in  support  of  a  plea  of  justification,  notwith- 
standing the  mayor's  concession  that  some  of 
the  recitals  were  incorrect. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Dec  Dig.  I  332.*] 

8.  Libel  and  Slandbb  (|  110*)— Evidence — 

JUSTiriOATION. 

Where  plaintiff  sued  for  a  libelous  pub- 
lication attacking  his  character  and  business  as 
a  retail  liquor  dealer  by  means  of  orders  taken 
for  liquor  to  be  shipped  from  outside  the  state, 
evidence  that  a  large  number  of  citizens  met  at 
the  mayor's  office  on  one  occasion,  and  by  agree- 
ment invited  plaintiff  to  attend,  and  asked  him 
if  he  would  not  quit  coming  to  town  on  the 
business  he  was  engaged  in,  which  he  declined, 
was  admissible  in  support  of  defendant's  plea  of 
justification. 

[Ed.  Note.— For  other  cases,  see  Libel  and 
Slander,  Cent.  Dig.  I  307;   Dec  Dig.  g  110.*] 

9.  Libel  and  Slandeb  (g  100*)— Libelous 
Publication  —  Cibculation  —  Plkadino — 
Evidence. 

Where  a  petition  alleged  the  circulation  of 
defendant's  newspaper,  containing  the  alleged 
libelous  publication  in  S.  and  vicinity,  evidence 
of  its  circulation  in  C,  and  of  damage  to  plain- 
tiff's reputation  there  by  reason  thereof,  was 
inadmissible. 

[Ed.  Note.— For  other  cases,  see  Libel  tuad 
Slander,  Cent.  Dig.  g  272 ;   Dec  Dig.  g  100.*] 

10.  Libel  and  Slandeb  (g  110*)— Bvidkhcb— 
Chabacteb. 

Where,  in  an  action  for  libel,  defendant 
by  wav  of  justification  pleaded  that  plaintifTs 
general  character,  and  general  moral  character 
in  S.  and  vicinity  at  the  time  the  Ubel  was  pub- 
lished there,  was  bad,  and  evidence  was  adduced 
to  support  such  allerationB,  evidence  that  plain- 
tiff's diaracter  in  C.,  where  plaintiff  rMded, 
which  was  some  distance  from  S.,  was  good  was 
inadmissible,  though  proof  of  general  character, 
when  in  issue,  generally  is  not  necessarily  con- 
fined to  a  single  locality. 

[Ed.  Note.— For  other  cases,  see  Libel  and 
Slander,  Cent  Dig.  g  314;   Dec  Dig.  g  110.*] 

11.  Witnesses  (g  324*)— Cbedibiliit— Chab- 
acteb. 

Where,  in  an  action  for  Ubel,  plaintiff  had 
been  called  as  defendant's  witness,  evidence  of 
plaintiff's  bad  character  could  not  be  interposed 
as  bearing  on  his  credibility. 

[Ed.  Note.— For  other  cases,  see  Witnesses, 
Cent  Dig.  g  1097;    Dec  Dig.  g  824.*] 

12.  Libel  and  Slandeb  (g  98*)— Pleadino— 
Amendment— Continuance. 

Befusal  to  permit  plaintiff  in  an  action  for 
libel  to  file  a  tnal  amendment  aUeging  a  wider 
drculation  of  the  paper  containing  the  aUeged 
libelous  publication,  except  on  condition  of  giv- 
ing defendant  a  continuance,  was  a  proper  exer- 
cise of  discretion;  no  excuse  having  been  of- 
fered for  plaintiff's  delay. 

[Ed.  Note.— For  other  cases,  see  Libel  and 
Slander,  Cent  Dig.  gg  237,  238;  Dec  Dig.  g 
9&*] 

13.  Libel  and  Slanobb  (g  106*)— Pbivileob 

— ETVIDENCE. 

In  an  action  for  Ubel,  defendant's  testi- 
mony as  to  how  he  came  to  publish  the  alleged 
libelous  articles  and  his  purpose   in   so   doing 


*Por  ether  cases  mm  same  topic  and  secUon  NUMBER  la  Dec.  &  Am.  DlgiL  1907  to  date,  *  Revortnr  ladens 


Digitized  by  VjOOQ  l€ 


Iowa) 


O'NBIL  T.  ADAMS. 


977 


was  admisaible  to  support  defendant's  plea  of 
jtrivilege. 

[Ed.  Note.— For  other  cases,  see  Ubel  and 
Blander,  Gent  Dig.  i  306;   Dec.  Dig.  {  109.*] 

14.  Affkal  and  Ebsob  (g  1056*)— Habicless 

EBBOB— RCUHQS  ON  EVIDENCE. 

Where  the  coart  charged  that  the  publica- 
tions in  question  were  libelous  per  se,  and  the 
Jury  found  in  favor  of  defendant's  plea  of  jus- 
tification, plaintiff  was  not  injured  by  the  er- 
roneous exclusion  of  an  inquiry  as  to  the  effect 
of  the  articles  on  plaintiff  personally,  when  his 
attention  was  first  called  thereto. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  4190 ;  Dec  Dig.  §  1056.»] 

15.  LinEL  AND  Slandeb  (S  122*)— Bobdkn  or 
Pboof. 

Where,  in  an  action  for  libel,  there  was  no 

Slea  of  special  damages,  a  ruling  that  the  bur- 
en  was  on  the  defendant  was  tantamount  to  a 
ruling  that  the  articles  published  were  libelous 
per  se. 

[Ed.  Note.— For  other  cases,  see  Libel  and 
Blander,  Dec.  Dig.  g  122.*] 

16.  Appeai,  and  Ebbob  (g  104G*)— Fbejudicx 
— BuBDEN  OF  Pboof. 

Wliere,  in  an  action  for  libel,  the  jury  were 
instructed  to  allow  plaintitt  damages  unless  the 
defense  of  justification  had  been  established  by 
a  preponderance  of  the  evidence,  and  the  jury 
found  for  defendant  on  that  issue,  plaintiff  was 
not  prejudiced  by  a  ruling  that  the  burden  of 
proof  was  on  defendant,  which  gave  to  defend- 
ant  the  opening  and  closing. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  i  4130;  Dec  Dig.  §  104e.»] 

17.  Appeal  and  Ebbob  (|  216*)— Objections 
IN  Lower  Coubt—Instbuctions— Necessity 
of  Request. 

Objections  to  instructions  relating  to  omis- 
sions therein,  rather  than  to  error  in  what  was 
stated,  will  not  be  reviewed,  in  the  absence  of 
a  proper  request  to  charge. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Dec  Dig.  {  216;*  Trial,  Cent.  Dig.  | 
027.] 

Appeal  from  District  Court,  Wayne  Coun- 
ty;  H.  K.  Evans,  Judge. 

On  the  evening  of  February  9,  1907,  the 
plaintiff  was  arrested  on  the  charge  of  in- 
toxication, and  sev^al  days  later  the  de- 
fendant, who  was  editor  of  a  newspaper 
called  the  Seymour  Leader,  in  publishing  an 
account  of  the  transaction,  beaded  an  ar- 
ticle, "The  Jug  Man  Jugged,"  and  said:  "The 
moral  and  social  bunch  of  corruption  that 
comes  here  from  Centervllle  ev«:y  week  and 
at  times,  nearly  every  day  dispensing  liquid 
damnation  to  some  of  our  citizens  and  rob- 
bing them  of  their  money,  manhood  and  re- 
spousiblllty  was  under  arrest  by  our  otflcers 
on  the  charge  of  drunlienness  and  remained 
UBtll  he  sobered  up  In  the  city  jail.  In  the 
morning  he  gave  bond  in  the  sum  of  $50," 
etc.  It  was  then  noted  that  the  paper  had 
nothing  personally  against  plalntlft,  but 
<%he  business  that  he  follows  so  persistent- 
ly has  set  the  citizens  of  this  place  in  loath- 
ing of  his  red  mug,"  and  comment  was 
made  upon  the  laws  which  upheld  such  a 
business,  and  it  was  suggested  that  there 
must  be  some  w«iy  of  putting  a  stop  to  the 
solicitor's  business  in  this  state,  and  refer- 


ence was  made  to  a  recent  meeting,  stating 
that  "many  of  his  former  patrons  bare  de- 
clared their  intention  to  forever  abandon  the 
drinking  habit." 

In  the  issue  of  May  2,  1907,  there  was 
published  in  the  same  paper  an  article,  say- 
ing "that  Dave  0*NeIl,the  dirty  little  whisky 
man  of  Centervllle,"  had  lieen  there  the 
week  before  buying  bank  deposit  oertlfleates 
at  50  or  60  cents  on  the  dollar.  On  May 
9th  plaintiff  Instituted  this  suit,  alleging 
that  these  articles  were  understood  as  charg- 
ing that  plaintiff  was  morally  and  socially 
corrupt,  was  engaged  in  selling  intoxicating 
liquors  in  violation  of  the  law,  that  be  was 
a  loathsome  and  disgusting  person,  and  not 
a  fit  associate  of  respectable  people,  and  that 
said  publications  were  false,  malicious,  and 
defamatory,  and  tended  to  excite  him  to 
wrath,  and  expose  him  to  public  ridicule 
and  deprive  him  of  public  confidence  and  so- 
cial intercourse.  Thereafter,  and  on  May 
16,  1907,  defendant  published  another  article 
in  the  Seymour  Leader  entitled  "Dave 
Skeers  Us;  He  Wants  Money" — and  there- 
in recited  in  a  humorous  way  that  troubles 
never  come  singly;  that  upon  the  heels  of 
the  bank  robbery  in  the  town  and  the  se- 
rious sickness  of  the  editor's  old  mare^  "the 
proprietor  of  the  'O'Nell  Drug  Company'  of 
Centervllle,  known  generally  In  this  commu- 
nity by  the  Cognomon  of  'Old  Dave'  sued 
us,  the  publisher  and  fighting  editor  of  this 
paper,  for  five  thousand  dollars  for  slan- 
der. Just  think  of  the  compliment  Dave 
unconsciously  bestowed  upon  us,  the  editor 
of  a  little  weekly  paper.  People  here  by 
the  score,  yes  by  the  hundreds  have  told  us 
time  and  again,  that  they  are  willing  to  take 
their  oath  upon  It,  that  It  would  be  an  im- 
possibility for  anybody,  newspaper  write  or 
otherwise,  to  Blander  David  O'Nell;  that  he 
has  no  character  to  lose,  and  being  a  minus 
quantity  or  lower,  any  attempt  at  slander 
would  roll  off  the  cipher  like  gease  off  a 
duck's  back.  And  now  Dare  admits  that 
we  slander  him  and  seek  balm  for  his 
wounded  and  demoralized  character  in  de- 
manding of  us  gold,  five  thousand  gobs  of 
gold,  with  Interest  at  the  rate  of  six  per 
cent  from  date  until  he  gets  it  Dave  flat- 
ters our  power  and  ability  and  wealth.  We 
admit  that  we  have  been  pretty  free  with 
our  eight  point  type  at  times  in  the  effort 
to  emphasize  our  views  on  all  moral  ques- 
tions, and  the  temperance  question  is  surely 
one,  and  any  honest  effort  to  rid  society  of 
the  parasites  that  feed  upon  and  destroy  it 
is  a  worthy  one,  but  any  motion  of  ever 
slandering  any  one,  never  entered  our 
thoughts."  Then  followed  a  republication 
of  the  articles  previously  mentioned,  adding 
to  the  first  article  that  it  should  have  been 
mentioned  that  "Dave  was  very  surly  and 
destructible  during  the  term  of  his  imprison- 
ment   and    among    other    mulish    actions. 


*For  otber  cues  lee  same  topic  and  secUon  NUMBER  in  Dec.  &  Am.  Digs.  1907  to  date,  ft  Reporter  lodexea 
122  N.W.— C2 


Digitized  by  VjOOQ  l€ 


978 


122  NORTHWESTERN  REPORTER. 


(Iowa 


knocked  the  callboose  etove  over  and  broke 
it  and  when '  arrested  tbe  second  time,  the 
additional  charge  was  made  against  him 
for  destroying  public  property."  After  the 
second  article  it  was  suggested  that  "The 
Drug  Company  had  no  case — except — a  beer 
case,  and  that  would  not  come  In  this  case 
which  we  promise  you  will  not  come  up  for 
trial  very  soon  because  the  Drug  Company 
Is  mostly  bluff  and  tbe  balance  wind."  Aft- 
t!t  referring  to  a  suit  of  "this  semblance  of 
a  man"  against  the  officer  who  arrested  him, 
this  was  added:  "If  the  Drug  Company 
Aan't  gather  from  this  that  the  citizens  here 
do  not  desire  his  presence  here  in  this  com- 
munity. Let  him  personally  interview  about 
two  thousand  of  our  citizens,  taking  them 
at  random.  If  be  finds  that  the  vast  majori- 
ty of  our  best  citizens  self  respecting  and 
law  abiding,  doesn't  hold  him  in  less  esteem 
than  a  common  burglar  or  a  sheep  killing 
dog,  then  we  will  cheerfully  fork  over  $5,000, 
with  interest  thereon  at  six  per  cent — and 
do  without  our  new  automobile  and  a  few 
other  little  nlcknacks,  if  need  be  and  do 
without  a  trial.  Now  mister  come  on.  The 
above  offer  will  apply  to  any  one  as  well 
as  O'Neil,  who  follows  the  low,  disreputable 
and  damnable  trade  of  drunkard  making,  by 
traveling  from  place  to  place,  taking  beer 
and  whisky  orders." 

As  damages  resulting  from  such  publica- 
tion. Judgment  for  $6,000  was  prayed.  The 
defendant  in  his  answer  admitted  that  ^e 
was  publisher  of  the  Seymour  Leader,  and 
that  tbe  articles  were  published  as  alleged, 
but  denied  that  they  were  false,  malicious, 
or  defamatory,  and  averred  that  the  several 
articles  were  published  in  said  newspaper 
as  items  of  news,  and  that  said  publications 
were  right,  proper,  and  fitting  to  be  made, 
and  were  therefore  privileged,  and  he  alleg- 
ed that  the  comments  made  In  said  articles 
were  reasonable,  and  were  made  in  good 
faith  and  without  malice  toward  plaintiff, 
and  alleged  in  mitigation  of  damages  that 
plaintiffs  general  moral  character  in  Sey- 
mour and  vicinity  was  not  good.  The  trial 
resulted  in  a  verdict  and  Judgment  for  the 
defendant.    The  plaintiff  appeals.    Affirmed. 

W.  H.  Sanders,  for  appellant  Miles  & 
Steel,  for  appellee. 

LADD,  J.  This  is  an  appeal  from  a  Judg- 
ment for  defendant  In  an  action  for  damages 
alleged  to  have  resulted  from  the  publication 
of  certain  articles  In  a  newspaper,  known  as 
The  Seymour  Leader.  The  court  held  that 
the  articles  were  libelous,  and  that  the  bur- 
den of  proof  was  on  the  defendant  to  estab- 
lish the  allegations  of  his  answer,  which 
were.  In  substance,  that  the  articles  were 
true,  and  were  published  with  proper  mo- 
tives, and,  in  mitigation  of  damages,  that 
defendant  believed,  and  had  good  ground  to 
believe,  them  true,  and  in  publishing  them  in 
Ills  paper  acted  with  projier  motives,  and 
also  that  plaintiffs  general  moral  character 


in  Seymour  and  vicinity  was  bad.  In  support 
of  these  allegations,  the  plaintiff  was  called 
as  a  witness,  and  it  appeared  from  bis  testi- 
mony that  during  eight  years  previous  to 
February  14,  1907,  he  bad  been  engaged  in 
the  occupation  of  taking  orders  from  in- 
dividuals in  Iowa  on  the  Ford-Ueim  Brew- 
ing Company  of  Kansas  City,  Mo.,  for  beer 
and  whisky.  These  orders  were  sent  to  that 
company,  and  the  intoxicating  liquor  ship- 
ped by  It  to  the  several  purchasers  from 
whom  plaintiff  collected  the  purchase  price. 
His  home  was  at  Centervllle,  but  be  visited 
Seymour  on  Saturdays,  and  frequently  on 
Sundays,  for  tbe  purpose  of  taking  orders  or 
collecting  from  patrons.  In  the  evening  of 
February  9,  1007,  he  was  arrested  on  tlie 
charge  of  intoxication,  and  confined  in  Jail 
for  about  an  hour.  While  there,  a  stove  top- 
pled over  and  was  broken.  This  evidence 
bore  directly  on  the  issues  raised,  and  was 
admissible. 

2.  Complaint  is  made  of  certain  rulings 
with  reference  to  allegations  in  amendments 
to  tbe  petition,  alleging  special  damages  be- 
cause of  loss  of  patrons  and  sale  of  in- 
toxicating liquors  owing  to  tbe  publications. 
As  the  taking  of  orders  of  customers  al- 
leged to  have  been  lost  would  have  been 
illegal,  no  Injury  resulted,  and  the  rulings 
were  correct.  McCollum  v.  McConaughy 
(Iowa)  119  N.  W.  539. 

3.  Exceptions  were  taken  to  rulings  which 
permitted  testimony  by  plaintiff  of  method 
pursued  in  the  prosecution  of  the  business 
he  was  engaged  in,  and  to  the  extent  of  that 
business.  Such  evidence  tended  directly  to 
sustain  the  charge  that  be  was  engaged  In  an 
Illegal  avocation,  and  tended  to  Justify  the 
characterization  of  him  found  in  the  pub- 
lished articles.  True,  the  court  Instructed 
that  his  occupation  was  lawful,  evidently 
following  State  v.  Hanaphv,  117  Iowa,  15, 
90  N.  W.  601,  but  that  cause  has  since  been 
found  not  to  bave  correctly  construed  the 
laws  of  the  general  government  McCollum 
v.  McConaughy,  supra.  Even  though  tbe 
court  may  have  erred  in  plalntifTs  favor  in 
the  instructions,  the  rulings  on  the  admissi- 
bility were  correct 

4.  Plaintiff  was  asked  of  what  he  was 
charged  when  arrested.  An  objection  to  the 
effect  that  this  called  for  secondary  evi- 
dence was  overruled.  As  no  Information  bad 
been  filed  nor  warrant  issued,  the  Inquiry 
must  have  called  for  the  oral  accusation,  and 
for  this  reason  the  exception  is  not  well  tak- 
en. For  a  like  reason  tbe  testimony  of  the 
Justice  of  the  peace  that  plaintiff  was  brought 
before  bim  was  admissible,  rather  than  the 
return  of  the  officer.  Exception  is  also  taken 
to  the  rulings  admitting  evidence  identifying 
the  Justice's  dock  and  also  the  docket  The 
ruling  in  the  absence  of  any  showing  of 
what  the  docket  contained  must  be  presumed 
to  have  been  correct  The  mayor's  docket 
was  properly  Identlfled,  and  that  portion  re- 
cording the  conviction  of  plaintiff  on  tbe 


Digitized  by  LjOOQ  l€ 


Iowa) 


O'NEIL  T.  ADAMS. 


979 


charge  of  drunk^mess  admissible  In  evl- 
deuce.  If  some  of  the  recitals  were  incor- 
rect, plaintiS  had  the  benefit  of  the  mayor's 
concession  to  this  effect  That  the  record 
-was  admissible  to  prove  his  conviction  is 
too  clear  for  argrumeut. 

6.  A  witness  was  asked  to  explain  a  dem- 
onstration to  which  he  had  referred,  and  over 
objection  answered  that  a  large  number  of 
citizens  met  at  the  mayor's  office,  and  by 
agreement  invited  the  plaintiff  In,  and  asked 
him  If  be  would  not  quit  coming  to  the  town 
on  the  business  he  was  engaged  in,  to  which 
he  answered  that  he  would  not  The  evi- 
dence bore  directly  on  two  charges  made 
against  him  in  the  articles,  and  was  clearly 
admissible. 

6.  The  petition  alleged  the  circulation  of 
tbe  newspaper  in  iSeymour  and  vicinity. 
Evidence  of  Its  circulation  in  Centerville  was 
tendered,  but  rejected  on  defendant's  objec- 
tion. The  ruling  was  sound  for  that  the 
pleading  bad  limited  tbe  field  within  which 
injury  had  been  suffered. 

7.  Defendant  by  way  of  Justification  plead- 
ed that  plaintiff's  general  character,  and  gen- 
eral moral  character  in  Seymour  and  vicinity 
at  tbe  time  of  the  publication  of  the  sev- 
eral articles  was  bad.  As  to  the  last  two 
articles,  this  was  also  pleaded,  in  mitigation 
of  dam^es.  Evidence  was  adduced  in  sup- 
port of  these  allegations,  to  meet  which  plain- 
tiff tendered  proof  of  good  character  in  Cen- 
terville. An  objection  thereto  was  sustain- 
ed, and  rightly  so,  for  such  evidence  would 
not  have  tended  to  rebut  the  testimony  con- 
cerning bis  character  at  Seymour  and  vicin- 
ity, nor  would  it  have  obviated  the  mitiga- 
tion to  which  defendant  might  be  entitled  in 
the  territory  of  the  newspaper's  circulation. 
Undoubtedly  proof  of  general  character  when 
in  issue  generally  is  not  necessarily  confined 
to  a  single  locality.  See  Hanners  v.  McClel- 
land. 74  Iowa,  318,  87  N.  W.  889;  McGuire 
T.  Kenefick.  Ill  Iowa.  147,  82  N.  W.  485.  But 
the  charge  of  bad  character  had  not  been 
interposed,  nor  the  evidence  introduced,  as 
bearing  on  hla  credibility  as  a  witness.  This 
would  not  have  been  permissible,  as  plain- 
tiff bad  been  called  as  defendant's  witness. 
The  attempt  was  to  refute  evidence  of  bad 
character  as  a  Justification  for  using  lan- 
guage imputing  such,  in  one  locality,  by 
proving  that  the  party's  character  was  other- 
wise somewhere  else.  Whether  such  evidence 
might  be  admissible  were  knowledge  of  the 
good  character  of  the  party  elsewhere  brought 
home  to  the  publisher  need  not  now  be  con- 
sidered, for  proof  of  such  knowledge  was 
not  tendered.  In  the  absence  thereof  the 
testimony  was  rightly  rejected.  That  the 
cliaracter  of  plaintiff  at  places  other  than 
where  the  paper  was  alleged  to  have  circu- 
lated was.  not  admissible  is  too  clear  to  re- 

'  anire  more  tban  statement  to  that  effect. 

8.  On  the  day  of  the  trial  plaintiff  filed  an 
amendment  to  his  petition,  alleging  in  sub- 
stance that  the  Seymour  Leader  had  a  large 


circulation  in  Appanoose  county  at  tbe  time 
tbe  articles  were  published;  that  many  cop- 
ies reached  citizens  of  Centerville;  that 
marked  copies  thereof  were  sent  to  plaintiff 
and  wife,  and  the  articles  were  copied  Ui  a 
newspaper  at  Centerville.  On  motion  of  de- 
fendant the  amendment  was  stricken;  plain- 
tiff being  given  the  option  of  continuing  tbe 
case  over  the  term,  or  have  this  done.  This 
was  on  the  ground  that  defendant  was  not 
prepared  to  meet  the  allegations  contained 
In  the  amendment  The  ruling  was  within 
the  discretion  of  the  court  Parties  who  do 
not  complete  their  pleadings  until  trial  has 
begun  ordinarily  have  no  room  to  complain 
if  the  trial  court  declines  to  look  with  len- 
iency upon  their  proci*astlnatlon,  especially 
where  no  excuse  is  suggested.  The  burden 
of  making  a  showing  which  excused  the  de- 
lay In  pleading  the  matters  set  out  in  the 
amendment  was  on  plaintiff,  and  not  on  de- 
fendant, to  prove,  as  is  assumed,  that  he 
would  be  prejudiced  by  proceeding  with  the 
trial. 

9.  Objection  was  made  to  testimony  of  de- 
fendant as  to  how  he  came  to  publish  the 
several  articles  and  his  purpose  in  so  doing. 
This  evidence  was  admissible  as  tending  to 
support  tbe  plea  of  privilege.  Morse  v. 
Times-Republican  Printing  Co.,  124  Iowa, 
707,  100  N.  W.  867;  Prewltt  v.  Wilson,  128 
Iowa,  198,  163  N.  W.  365, 

10.  Objection  to  an  inquiry  ai  to  what  ef- 
fect tbe  articles  had  on  plaintiff  personally 
when  his  attention  was  first  called  to  tbe 
publication  was  sustained.  The  ruling  might 
well  have  been  the  other  way,  but  there 
could  have  been  no ,  prejudice.  Inasmuch  as 
the  court  Instructed  in  effect  that  tbe  ar- 
ticles were  libelous  per  se,  and  the  jury  found 
that  the  plea  of  jiistlflcation  was  established. 

11.  Exception  is  taken  to  the  court's  rul- 
ing that  the  burden  of  proof  was  on  the  de- 
fendant. This  was  tantamount  to  saying  that 
the  articles,  the  publication  of  which  was 
admitted,  were  libelous  per  se.  Surely,  in 
the  absence  of  a  plea  of  special  damages,  this 
was  correct  Even  if  otherwise.  It  is  dif- 
ficult to  find  room  for  plaintiff's  complaint 
In  the  second  Instruction  the  jury  was  told 
to  allow  plaintiff  damages,  unless  tbe  defense 
bad  been  established  by  a  preponderance  of 
tbe  evidence,  so  that  the  only  advantage,  if 
any,  of  having  tbe  opening  and  dosing  re- 
lated to  the  amount  of  damages  to  be  allowed. 
But  the  Jury  did  not  reach  this,  and  only 
passed  on  the  Issues  wherein  the  burden  of 
proof  was  cast  on  the  defendant  In  these 
circumstances  error  cannot  be  predicated  on 
the  ruling.  O'Connor  v.  Klelman,  121  N.  W. 
1088. 

12.  Exception  is  taken  to  several  of  the  In- 
structions. The  criticisms  are  directed  In  the 
main  at  what  they  do  not  contain  rather 
than  in  any  error  in  what  they  said.  Some 
of  them  might  well  have  been  more  explana- 
tory, but  in  the  absence  of  proper  requests, 
were  without  error.    Nothing  will  be  gained 


Digitized  by  VjOOQ  IC 


980 


122  NORTHWESTERN  REPORTER. 


(Nek 


by  reviewing  them  In  detail,  nor  the  evl- 
dente,  In  declining  to  interfere  with  the  ruling 
which  denied  a  new  trial.  Had  the  rules 
of  this  court  been  observed  by  appellant  in 
the  preparation  of  his  brief,  we  should  have 
been  more  inclined  to  a  separate  considera- 
tion of  the  questions  presented. 

We  have  discovered  no  reversible  error, 
and  the  Judgment  Is  affirmed. 

Affirmed. 


RADIO  V.  SAWYER.     (No.  15,600.) 
(Supreme  Conrt  of  Nebraska.     Oct.  22,  1009.) 

1.  Justices  of  the  Peace  (§  155*)— Review— 
Proceedings  fob  Transfer  of  Cause. 

In  order  to  ^ive  the  district  court  jurisdic- 
tion In  a  proceedmg  in  error  to  reverse  a  judg- 
ment of  a  justice  of  the  peace,  the  plamtiff 
must  file  a  transcript,  a  petition  in  error  in  the 
district  court,  and  cause  a  summons  in  error  to 
be  issued  thereon  aeainst  the  defendant  within  6 
months  from  the  date  of  the  rendition  of  the 
judgment  complained  of,  which  summons  must 
be  served  upon  the  defendant  in  error  or  his  at- 
torney of  record. 

[Ed.  Note. — ^For  other  cases,  see  Justices  of 
the  Peace,  Cent.  Dig.  {  524 ;   C>ec.  Dig.  {  155.*] 

2.  Justices  of  the  Peace  (S  155*)— Review— 
Pboceedinos  fob  Tbansfeb  or  Cause  — 
Time  fob. 

After  the  expiration  of  six  months  from 
the  date  of  the  judgment,  the  district  court  can- 
not obtain  jurisdiction  to  reverse  the  same 
by  issuing  what  is  called  a  nunc  pro  tunc  sum- 
mons in  error  and  directing  service  thereof  to 
be  made  upon  the  defendant,  and  a  judgment 
reversing  the  judgment  of  a  justice  of  the  peace 
upon  such  service  is  void.. 

[Ed.  Note.— For  other  cases,  see  Justices  of  the 
Peace,  Cent.  Dig.  {  524 ;   Dec.  Dig.  i  155.*] 

8.  Courts  (J  89*)— District  Court— Deteb- 
IIINATION  OF  Its  Own  Jurisdiction. 

Ordinarily  the  district  court  has  the  power 
to  determine  the  question  of  its  own  jurisdic- 
tion; but,  where  the  jurisdiction  of  the  court 
does  not  depend  upon  a  question  of  fact,  and 
is  simply  one  of  law,  no  finding  or  declaration 
of  the  court,  if  made  in  disregard  of  plain  stat- 
utory x)rovisions,  will  give  it  jurisdiction. 

[Ed.  Note.— For  other  cases,  see  Courts,  Cent. 
Dig.  Si  153,  154 ;   Dec.  Dig.  {  39.*] 

4.  Courts  (J  2*)— Test  of  Jubisdiction. 

The  test  of  jurisdiction  is  whether  the 
tribunal  bad  the  power  to  enter  upon  the  in- 
quiry, and  not  whether  its  methods  were  regu- 
lar, its  findings  right,  or  its  conclusions  in  ac- 
cordance with  the  law. 

[Ed.  Note.«-For  other  cases,  see  Courts,  Cent. 
Dig.  8  1;   Dec.  Dig.  §2.*] 

5.  Judgment  ({  486*)— Void  Judgment— Im- 
peachment. 

A  void  judgment  is  in  reality  no  judgment. 
It  is  a  mere  nullity.  It  is  supported  by  no 
presumption,  and  may  be  impeached  in  any  ac- 
tion, direct  or  collateral. 

[Ed.  Note.— For  other  cases,  see  judgment, 
Cent.  Dig.  §  019;   Dec.  Dig.  (  486.*] 

(Syllabus  by  the  Court.) 

On  rehearing.  Former  opinion  vacated, 
and  judgment  of  the  district  court  reversed 
and  proceedings  dismissed. 

For  former  opinion,  see  84  Neb.  143,  120 
N.  W.  957. 


BARNES,  J.  Onr  former  opinion  In  this 
case  affirming  the  Judgment  of  the  district 
court  (see  84  Neb.  143,  120  N.  W.  957),  con- 
tains a  detailed  statement  of  the  facts,  to 
which  reference  will  be  made  in  this  opinion. 

Oral  argument  was  ordered  on  appellant's 
motion  for  a  rehearing,  and  the  case  has  t>een 
reargued  and  again  submitted  for  our  con- 
sideration. Counsel  both  for  and  against  the 
motion  have  so  ably  presented  the  questions 
involved  In  this  controversy  as  to  render  fur- 
ther argument  a  work  of 'supererogation,  and 
we  will  therefore  dispose  of  the  case  without 
further  delay. 

It  is  proper  at  this  point  to  state  that  on 
the  24th  day  of  May,  1904,  the  appellant  re- 
covered a  Judgment  against  the  appellee  in 
Justice  court  of  Saline  county;  that  soon 
thereafter  he  caused  a  transcript  of  that 
Judgment  together  with  a  petition  tn  error, 
to  be  filed  in  the  district  court,  but  no  sum- 
mons in  error  was  issued  thereon  until  more 
than  11  months  had  elapsed  when,  by  a  mo- 
tion, he  asked  the  court  to  issue  wtiat  he 
called  a  nunc  pro  tunc  summons  in  error  as 
of  the  date  of  the  filing  of  his  transcript,  and 
in  order  for  service  thereof.  His  request 
was  granted;  and,  when  the  so-called  sum- 
mons was  served,  appellant  by  special  appear- 
ance challenged  the  Jurisdiction  of  the  court 
Her  challenge  was  overruled,  she  elected  to 
stand  upon  her  special  appearance,  and  made 
no  other  or  further  appearance  in  the  case. 
Some  time  thereafter  the  court  reversed  the 
Judgment  of  the  Justice  of  the  peace,  and  ren- 
dered a  Judgment  on  the  merits  against  ap- 
pellant from  which  she  has  appealed  to  this 
court 

We  held  in  our  former  opinion,  first  that 
the  district  court  had  no  Jtirisdictlon  to  is- 
sue what  is  called  the  nunc  pro  tunc  sammons 
In  error,  and  direct  that  It  t>e  served  upon 
the  appellant  more  than  11  months  after  the 
rendition  of  the  Judgment  in  her  favor  in 
Justice  court  and  that  the  district  court  was 
therefore  without  any  Jurisdiction  to  re- 
verse that  Judgment  We  are  satisfied  that 
thus  far  our  former  Judgment  was  correct 
Bemis  V.  Rogers,  8  Neb.  149;  Rogers  v. 
Redlck,  10  Neb.  332,  6  N.  W.  413;  Ben- 
son V.  Michael,  29  Neb.  131,  45  N.  W.  276: 
Stull  V.  Cass  County,  51  Neb.  760,  71  N. 
W.  777.  We  then  decided  that  by  failing 
to  appear  or  prosecute  error  from  the  Judg- 
ment of  the  Justice  until  after  the  case  had 
been  set  dovni  for  trial  and  a  Judgment  had 
been  rendered  against  her  on  the  merits,  ap- 
pellant could  not  question  the  Jurisdiction  of 
the  district  court  to  render  such  Judgment 
We  are  now  of  opinion  that  this  ruling  was 
wrong,  and  cannot  be  sustained  by  either 
principle  or  precedent.  Appellee  contends, 
however,  that  the  district  court  had  the  pow- 
er to  determine  the  question  of  its  own  Ju- 
risdiction, and  as  no  bill  of  exceptions  was 
preserved  upon  the  order  of  the  court  award- 


•For  otber  c«Mt  see  same  topic  and  section  NUMBER  in  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Neb.1 


BINGAMAN  t.  BIKOAMAN. 


981 


Ing  the  laanance  and  service  of  the  BO-caUed 
nunc  pro  tunc  Bummons  In  error,  the  ruling 

upon  that-  question,  although  It  was  errone- 
ous, was  not  void,  and  that  order  or  Judg- 
ment cannot  be  reviewed.  This  would  un- 
doubtedly be  true  If  any  question  of  fact  up- 
on which  jurisdiction  depended  had  been  In- 
vestigated and  determined  by  the  district 

•  court.  Perrlne  v.  K.  T.  &  M.  Ins.  Co.,  71  Neb. 
267,  98  N.  W.  841,  101  N.  W.  1017.  But  In 
this  case  there  was  no  disputed  question  of 
fact  Everything  relating  to  the  question  of 
jurisdiction  fully  appeared  on  the  face  of  the 
record,  so  that  the  question  of  jurisdiction 
was  simply  one  of  law.  In  such  a  case  no 
finding  or  declaration  of  the  court.  If  made  in 
disregard  of  plain  statutory  provisions,  will 
give  it  jurisdiction.  A  court  cannot  act  sua 
sponte.  Some  person  must  in  some  legal  way 
invoke  its  action.  11  Cyc.  670.  The  test  of 
jurisdiction  is  whether  the  tribunal  had  pow- 
er to  enter  upon  the  Inquiry,  not  whether  Its 
methods  were  regular,  its  findings  right,  or  Its 
conclusions  in  accordance  with  the  law. 
Johnson  v.  Miller,  50  lU.  App.  60. 

The  provisions  of  our  statute  by  which  the 
district  court  was  at  that  time  given  juris- 
diction of  proceedings  In  error  from  a  Judg- 
ment of  a  justice  of  the  peace  required  the 
filing  of  a  transcript,  a  petition  in  error  In 
the  district  court,  and  the  Issuance  of  a  sum- 
mons within  6  months  from  and  after  the 
rendition  of  the  judgment  complained  of, 
which  must  have  been  served  upon  the  de- 
fendant In  error.  In  the  case  at  bar  those 
provisions  were  never  complied  with,  and 
therefore  the  district  court  had  no  power  to 
enter  upon  any  Inquiry  in  relation  thereto, 
and  any  order  or  judgment  made  therein 
was  absolutely  void.  So  It  may  be  said  that 
up  to  the  time  the  final  judgment  on  the 
merits  was  rendered  against  appellant,  the 
proceedings  of  the  district  court  were  coram 
non  Judice  and  void.  Eayrs  v.  Nason,  54 
Neb.  143,  74  N.  W.  408 ;  Cavanaugh  v.  Smith, 
84  Ind.  380;  Woods  Harvester  Co.  v. 
Dobry,  59  Neb.  590,  81  N.  W.  611.  If  this 
be  true,  then  the  court  had  no  jurisdiction  to 
render  the  last-named  Judgment,  and  all  of 
the  proceedings  were  void,  and  such  Judg- 
ment may  be  assailed  either  directly  or  col- 
laterally. Johnson  v.  Parrotte,  46  Neb.  61, 
64  N.  W.  363.  In  that  case  It  was  said :  "A 
void  .judgment  Is  In  reality  no  judgment  at 
all.  It  is  a  mere  nullity.  It  is  supported  by 
no  presumptions,  and  may  be  impeached  In 
any  action,  direct  or  collateral."  Indeed  up- 
on this  question  there  seems  to  be  no  con- 
filct  of  authority.*  Upon  the  argument  coun- 
sel for  the  appellee  tacitly  acknowledged  the 
force  of  this  declaration  by  contending  that 
appellant,  at  some  time  or  place  in  the  pro- 
ceedings, voluntarily  entered  her  general  ap- 
pearance therein,  and  our  attention  is  special- 
ly directed  to  a  paper  filed  In  the  district 
court  on  the  5th  day  of  December,   1904, 


which  is  claimed  by  counsel  to  be  a  general 
appearance,  and  which  reads  as  follows 
(omitting  title) :  "Comes  now  the  defendant, 
and  appears  specially  and  objects  to  the  ju- 
risdiction of  the  court  over  the  person  of 
the  defendant  herein  for  the  following  rea- 
sons :  Because  the  proceedings  In  error  were 
not  commenced  and  perfected  herein  within 
six  months  from  and  after  the  Judgment 
which  it  is  sought  to  have  reversed,  as  re- 
quired l)y  law.  (2)  Because  no  summons  in 
error  was  Issued  out  of  this  court,  nor  serv- 
ed within  the  time  provided  by  law.  (3)  Be- 
cause no  summons  In  error  has  been  issued 
herein,  and  more  than  6  months  has  elapsed 
since  the  rendition  of  the  judgment  sought 
to  be  reversed,  nor  has  summons  In  error  or 
other  notice  of  this  proceeding  been  served 
or  given  defendant  or  her  attorneys.  [Sign- 
ed] Mary  Eadll,  Defendant,  by  F.  W. 
Bartos,  Her  Attorney."  That  this  does  not 
amount  to  a  general  appearance  conferring 
Jurisdiction  on  the  district  court  seems  clear. 
It  directs  the  attention  of  the  court  to  its 
want  of  jurisdiction,  and  should  have  been, 
and  must  be,  treated  simply  as  a  special  ap- 
pearance. It  is  proper  to  state  that  we  have 
searched  the  record  and  are  unable  to  find 
anything  therein  which  even  resembles  a 
general  appearance  on  the  part  of  the  ap- 
pellant, while,  on  the  other  hand,  it  appears 
that  she  at  all  times  and  places  challenged 
and  denied  the  jurisdiction  of  the  court,  and 
stood  and  relied  on  her  special  appearance. 
We  are  therefore  of  opinion  that  the  district 
court  was  without  jurisdiction  of  the  so-call- 
ed proceedings  in  error,  and  all  of  Its  orders 
and  judgments  therein  are  void. 

For  the  foregoing  reasons,  our  former  judg- 
ment Is  vacated,  the  judgment  of  the  district 
court  Is  reversed,  and  the  proceedings  there- 
in are  dismissed. 

Reversed  and  dismissed. 


BINGAMAN  v.   BINGAMAN  et  al. 

(No.  15,776.) 

(Supreme  Court  of  Nebraska.     Oct  22,  1909.) 

1.  EviDEKCB   (!   598*)— Weight  and    Suiti- 

CIENCT— PBEPONDERANCE  OF  EVIDENCE. 

While  it  is  the  rule  in  this  state  that  a 
preponderance  of  the  testimon;^  is  all  that  is 
required  to  sustain  a  finding  in  a  civil  case, 
still  what  constitutes  a  preponderance  may  vary 
largely,  according  to  the  circumstances  of  each 
case. 

lEH.   Note. — For   other  cases,   see   Evidence, 
Cent.  Dig.  {  2450 ;  Dec.  Dig.  S  598.*] 

2.  Cancellation  of  Instruments  (§  45»)— 
Sufficiency  of  Evidence— Fbaud. 

Where  it  is  sought  to  set  aside  a  written 
instrument,  and  more  especially  one  which  has 
been  executed  with  the  formality  of  being  signed 
in  the  presence  of  witnesses  and  acknowledged 
before  a  notary  public  on  account  of  fraud,  the 
presumptions  of  validity  and  regularity  attach- 
ing to  such  a  document  require  clear  and  con- 
vincing evidence  to  preponderate  against  them. 
The  formal  instrument  furnishes  proof  of  the 


•iror  otber  cases  tee  same  topic  and  section  NUMBER  in  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


982 


122  NORTHWESTERN  REPORTER. 


(Neb. 


most  cogent  and  solemn  character,  and  to  out- 
weigh tnia  proof  requires  a  greater  quantum 
of  evidence  than  in  a  case  where  there  are  no 
■uch  presumptions  to  overcome.  Peteison  v. 
Bauer's"  Estate,  76  Neb.  652,  663,  107  N.  W. 
993,  111  N.  W.  361. 

(Ed.  Note. — For  other  cases,  see  Cancellation 
of  Instruments,  Cent.  Dig.  {  100;  Dec  Dig.  S 
46.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Saline  County ; 
Hurd,  Judge. 

Action  by  Ell  Bingaman  against  Anna 
Bingaman  and  others.  Judgment  for  plain- 
tiff, and  defendants  appeal.  Reversed  and 
remanded,  with  directions. 

J.  H.  Grimm  &  Son  and  E.  J.  Clements,  for 
appellants.    Hastings  &  Ireland,  for  appellee. 

LETTON,  J.  This  Is  a  case  to  set  aside 
and  cancel  a  conveyance  of  80  acres  of  land 
in  Saline  county  on  the  ground  that  It  was 
fraudulently  obtained.  The  plaintiff  and  de- 
fendant are  husband  and  wife.  The  plain- 
tiff is  a  man  of  68  years  of  age.  In  1865  he 
entered  160  acres  of  land  In  Saline  county, 
under  the  United  States  homestead  law,  of 
which  tract  the  80  acres  In  controversy 
forms  a  part  In  1882  plaintiff,  who  was  a 
widower  with  one  son,  lived  upon  his  home- 
stead, and  the  defendant  Anna  Bingaman 
at  that  time  was  living  on  her  farm  near  by. 
She  was  then  a  young  widow  named  Chyba, 
24  years  old,  with  several  children.  They 
were  married  in  1882,  and  lived  together  up- 
on the  plaintiff's  homestead  for  13  years, 
when,  the  health  of  both  failing,  they  went 
to  Texas,  and  have  lived  at  various  places  in 
the  South  from  that  time  until  a  short  time 
before  the  beginning  of  this  action;  both, 
however,  looking  upon  plaintiff's  160-acre 
farm  as  their  family  homestead,  and  living 
upon  the  rents  derived  from  that  land,  the 
rent  from  160  acres  owned  by  the  defendant, 
and  from  the  plaintiff's  pension  of  $12  a 
month.  The  testimony  shows  that  their  mar- 
ried life  was  full  of  discord  and  quarrels, 
although  they  had  their  peaceful  Intervals 
as  well,  and  that  they  had  separated  and 
lived  together  again.  When  Mrs.  Chyba  mar- 
ried the  plaintiff  and  moved  to  his  home,  the 
house  was  built  upon  the  farm  and  the 
orchard  planted,  but  most  of  the  other  im- 
provements have  been  made  since  that  time, 
a  number  of  them  from  the  Income  from  the 
rent 

The  defendant  testifies  that  before  the  mar- 
riage of  Bingaman,  as  an  Inducement  to  her 
to  marry  him,  he  promised  to  convey  to  her 
the  80  acres  In  controversy,  but  this  Is  de- 
nied by  the  plaintiff.  They  both  testify  that 
soon  after  the  marriage,  and  continuing  for 
a  long  time,  she  kept  insisting  that  he  make 
her  a  conveyance  of  the  land,  but  that  he  as 
regularly  refused  to  do  so.  She  finally  be- 
came tired,  she  says,  and  stopped  asking  him 
to  carry  out  this  alleged  agreement,  until  in 


1906,  after  the  plaintiff's  only  son  bad  been 
killed  In  a  railroad  wreck,  she  a^ln  began 
to  urge  him  to  make  the  conveyance.  They 
spent  the  summer  of  1906  at  Crete  near  the 
farm.  During  that  summer  she  advertised 
80  acres  of  her  land  In  section  4  for  sale. 
Upon  one  occasion  the  plaintiff  accompanied 
her  to  the  oflSce  of  one  James  Schmellr,  a 
notary  public  in  Crete.  She  testifies  that  at 
that  time  Schmellr  wrote  the  deed  conveying 
the  80  acres  to  her  son  James  Chyba  for  the 
purpose  of  transferring  the  title  to  her,  that 
at  this  time  she  offered  to  pay  plaintiff  $500 
if  be  would  execute  the  deed;  that  It  was 
read  to  him  by  Schmellr,  but  that  be  became 
angry,  refused  to  make  the  deed,  and  said  to 
her,  "Yon  will  get  it,  not  now,  but  soon." 
The  plaintiff  admits  substantially  that  this 
conversation  was  had,  but  testifies  that  the 
deed  was  not  read  to  him,  and  that  he  did 
not  see  it  then.  In  the  fall  of  that  year  they 
returned  to  Hot  Springs,  Ark.  After  they 
went  South  the  unexecuted  deed  was  sent  by 
Schmellr  to  the  defendant,  and  the  evidence 
shows  that  the  plaintiff  was  aware  of  this 
fact. 

The  plaintifTs  story  as  to  what  afterwards 
occurred  Is  about  as  follows:  That  defend- 
ant told  him  she  wanted  him  to  join  with  her 
in  making  a  deed  to  her  son  of  the  80  acres 
of  her  land  in  section  4  that  she  had  been 
trying  to  sell  while  they  were  in  Nebraska; 
that  on  the  morning  of  November  23,  1906. 
she  Induced  blm  to  go  to  the  office  of  a  no- 
tary In  that  city  for  the  purpose  of  signing 
and  acknowledging  the  deed;  that  she  read 
the  deed  to  him  before  they  went  to  the 
notary's  office  as  if  the  land  was  in  section 
4,  the  N.  W.  of  the  8.  W.  \i  of  section  4; 
that  when  they  went  to  the  notary's  office 
that  officer  read  it  over  again  just  the  same 
as  she  did,  as  If  the  land  was  in  section  4; 
that  no  consideration  was  paid  for  his  sig- 
nature; that  there  was  no  one  in  the  office 
at  the  time  but  he  and  his  wife  and  another 
woman;  that  a  Mr.  Lafevre  came  in,  in  re- 
sponse to  a  telephone  call,  and  signed  the 
deed  as  a  witness,  though  he  also  says  tbat 
they  left  before  Lafevre  came;  that  his 
wife  told  him  she  was  selling  the  land  for 
$5,000,  and  was  going  to  divide  this  up  be- 
tween her  children  and  herself,  and  that  as 
she  read  It  to  blm,  the  consideration  named 
was  $5,000.  He  further  testifies  that  he  did 
not  know  that  his  land  had  been  conveyed 
until  a  lease  was  sent  from  one  Eckert,  a 
real  estate  agent  at  Crete  who  bad  found  a 
tenant,  and  the  lease  was  In  Mrs.  Bingaman's 
name ;  that  he  first  had  h&  vrlfe  write,  and 
that  Mr.  Eckert  said  It  was  all  right,  but 
that  afterwards  be  had  a  lawyer  write  Eck- 
ert, but  Eckert  would  not  answer;  that  he 
8oon  afterwards  received  a  newspaper  clip- 
ping showing  the  deed  bad  been  filed  for 
record,  and  that  this  was  the  first  definite 
knowledge  he  had  that  the  land  bad  been 


•For  otber  cases  sea  sama  topic  and  section  NUMBER  In  Dec.  *  Am.  Diss.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Neb.) 


BINQAMAN  t,  BINGAMAN. 


983 


trunsferrea ;  that  his  wife  then  had  $200  of 
his  money,  bnt  that  he  could  not  get  any  mon- 
ey from  'her,  but  waited  till  he  got  his  pen- 
sion, when  be  came  on  to  Crete,  and  began 
this  action  In  November,  1907 ;  that  the  rent 
for  1906  and  1907  has  been  collected  and  paid 
to  him,  the  1007  rent  being  paid  him  by 
John  Cliyba,  his  wife's  son;  that  he  is  un- 
able to  read  writing,  although  be  can  write 
his  name,  and  is  unable  to  read  the  English 
language,  except  to  pick  out  a  few  words 
when  be  reads  a  newspaper;  that  he  has 
paid  the  taxes  from  the  rent  money,  and  is 
now  in  possession  of  the  land. 

On  the  other  hand,  the  defendant's  story 
is:  That  on  the  day  before  the  deed  was 
executed  she  had  been  urging  him  to  carry 
out  his  promise  and  deed  her  the  80  acres. 
That  she  told  him  she  would  pay  blm  the 
$S00  which  she  promised  In  Schmellr's  of- 
fice. That  he  said  he  would  consider  it  un- 
til next  day.  That  in  the  morning  he  said 
he  bad  made  up  his  mind  that  he  would  let 
her  hare  it.  She  also  says  she  agreed  that 
the  land  should  not  be  sold  as  long  as  he 
lived.  That  they  went  to  a  butcher  shop 
that  morning,  and  asked  the  proprietor,  Mr. 
Lafevre,  with  whom  they  were  both  acquain- 
ted, whether  be  would  witness  the  deed. 
That  after  dinner  they  went  downtown  to 
look  for  a  notary.  That  they  saw  Mr.  Al- 
ford'B  sign,  went  into  the  office,  and  asked 
him  to  acknowledge  the  deed.  That  he  then 
asked  whether  they  knew  some  one  who 
could  identify  them.  That  they  told  him  of 
Mr.  Laferre,  and  Mr.  Alford  then  telephoned 
him  to  come  down  for  the  purpose  of  wit- 
nessing the  deed.  That  before  tbey  left  home 
the  plaintiff  asked  her  to  read  the  deed 
aloud,  which  she  did.  That  Mr.  Alford  again 
read  the  deed  aloud  to  them  before  Lafevre 
came  in,  and  that  after  Lafevre  came  in 
the  deed  was  again  read  aloud  by  him,  and 
then  signed,  witnessed,  acknowledged,  and 
delivered  to  her.  That  the  next  day  she 
gave  plaintiff  five  $100  bills  from  her  cash 
box,  money  received  from  rents.  That  the 
deed  was  afterwards  recorded,  but  not  until 
she  had  procured  a  reconveyance  to  her  from 
her  son  John,  and  this  was  the  reason  for 
the  delay  In  recording.  She  further  says 
that  she  had  never  met  Mr.  Alford  before, 
and  that  her  only  acquaintance  with  Lafevre 
was  from  purchasing  meat  at  his  butcher 
shop.  She  agrees  with  plaintiff  that  tbey 
bad  to  wait  about  one-half  hour  for  Mr.  La- 
fevre to  come,  because  his  clerk  was  out, 
and  he  could  not  leave  his  shop,  and  fur- 
ther says  that  she  had  never  had  any  con- 
versation with  Alford,  except  at  that  time, 
in  her  husband's  presence.  Her  testimony 
In  regard  to  the  transaction  in  the  office  is 
corroborated  both  by  Mr.  Alford  and  by  Mr. 
Lafevre.  These  men  both  identify  the  orig- 
inal deed,  which  was  offered  In  evidence,  tes- 
tify that  it  is  unaltered,  and  each  testifies 
that  he  read  the  description  aloud  to  both 
of  them  exactly  as  it  was  written  in  the 


deed,  although  they  could  not  tell  from  mem- 
ory alone  what  section  the  land  was  in.  In 
rebuttal  the  plaintiff  again  denied  being  paid 
any  money  for  the  land,  and  said  that  it 
was  his  wife  who  asked  that  Lafevre  b^ 
sent  for.  He  denies  the  making  of  an  agree- 
ment that  she  should  not  sell  the  land  as 
long  as  he  lived.  Plaintiff,  also  In  rebuttal, 
offered  the  testimony  of  Mr.  and  Mrs.  Low- 
rey,  who  had  associated  somewhat  Intimate- 
ly with  the  parties  when  tbey  llfed  at  Hot 
Springs  and  Little  Rock,  Ark.  Lowrey  tes- 
tified that  in  October,  1907,  defendant  told 
him  her  husband  had  found  out  aboijt  the 
land  being  deeded  away,  and  he  accused  her 
of  fooling  him  out  of  the  land,  that  she  fur- 
ther said  that  she  had  taken  advice,  and 
that  her  attorneys  said  no  payment  was  nec- 
essary, and  that  her  title  was  good  with- 
out it.  But  Lowrey  also  testifies  that  he 
frequently  beard  defendant  say  to  the  plain- 
tiff that  he  ought  to  deed  the  land  to  her 
as  a  recompense,  and  his  response  was :  "Do 
you  want  me  to  die?  You  will  get  the  land 
some  time'' — and  that  these  conversations 
were  betwewi  the  16th  and  the  last  of  Oc- 
tober, 1907.  His  wife  testifies  that  in  July, 
1907,  defendant  told  her  that  she  had  been 
trying  to  get  her  husband  to  deed  80  acres 
of  land  to  her,  and  that  he  always  says, 
"Do  you  want  me  to  die?"  That  she  also 
said  that  Blngaman  gave  her  some  land 
when  they  were  In  Hot  Springs  a  year  ago, 
and  that  be  now  says:  "I  fooled  him ;  that 
be  did  not  give  It  to  me."  This  evidence, 
however.  Is  subject  to  the  same  infirmity 
that  inheres  in  all  testimony  of  the  kind. 

The  original  deed  is  in  the  record  and 
bears  no  traces  of  any  change  or  alteration 
in  the  description  of  the  section.  Schmelir, 
who  wrote  the  body  of  it,  is  dead,  and  his 
testimony  has  not  been  taken.  It  is  possible 
that  the  plaintiff's  story  of  the  fraud  perpe- 
trated upon  him  by  his  wife  and  by  the  no- 
tary is  true,  but  we  think  the  evidence  is 
overwhelmingly  against  him  on  this  point 
There  is  absolutely  nothing  In  the  record 
which  tends  to  cast  any  sinister  light  upon 
the  conduct  of  either  Alford  or  Lafevre,  and 
both  appear  to  be  entirely  disinterested  wit- 
nesses. While  It  is  the  rule  in  this  state 
that  a  preponderance  of  the  testimony  is 
all  that  is  required  to  sustain  a  finding  in  a 
civil  case,  still  what  constitutes  a  preponder- 
ance may  vary  largely,  according  to  the  cir- 
cumstances of  each  case.  Where  it  is  sought 
to  set  aside  a  written  Instrument,  and  more 
especially  one  which  has  been  executed  with 
the  formality  of  being  signed  in  the  presence 
of  witnesses  and  acknowledged  before  a  no- 
tary public,  the  presumptions  of  validity  and 
regularity  attaching  to  such  a  document  re- 
quire dear  and  convincing  evidence  to  pre- 
ponderate against  them.  The  formal  Instru- 
ment furnishes  proof  of  the  most  cogent  and 
solemn  character,  and  to  outweigh  this  proof 
requires  a  greater  quantum  of  evidence  than 
in  a  case  where  there  are  no  such  presum];>- 


Digitized  by  VjOOQ  l€ 


984 


122  NORTHWESTERN  REPORTER. 


(Neb. 


tlons  to  OTercome  Peterson  v.  Baner's  Es- 
tate, 76  Nftb.  652,  663,  107  N.  W.  993,  111 
N.  W.  361,  Doane  t.  Danham,  64  Neb.  135, 
89  N.  W.  640;  Topping  t.  Jeanette,  64  Neb. 
834,  00  N.  W.  911;  Williams  v.  Miles,  68 
Neb.  463,  478,  94  N.  W.  705,  96  N.  W.  151, 
62  L.  R.  A.  383,  110  Am.  St.  Rep.  431.  The 
plalntifiTs  main  contention  la  that,  while  the 
deed  upon  Its  face  describee  the  plalntllTB 
land  In  section  3,  yet  that  It  was  read  to 
him  as  If  >lt  described  the  defendant's  land 
In  section  4,  but  this  Is  denied  by  the  de- 
fendant, by  the  notary,  and  by  the  witness, 
and  there  Is  absolutely  no  eTldence  In  the 
record  which  even  remotely  suggests  any  col- 
lusion or  conspiracy  or  any  concert  of  action 
between  these  parties. 

With  the  exception  of  the  testimony  of 
the  plaintiff  and  defendant,  that  relating  to 
the  transactions  at  the  time  of  the  execution 
of  the  deed,  and  to  conTersatlons  thereaft- 
er In  Arkansas,  was  taken  by  deposition.  The 
advantage,  therefore,  that  personal  observa- 
tion of  the  witnesses  usually  gives  to  the 
trial  Judge  does  not  exist  as  to  these  absent 
witnesses,  and  this  court  is  In  as  favorable 
a  position  to  Judge  of  their  credibility  as 
was  the  trial  court.  We  must  refuse  to  can- 
cel and  set  aside  this  conveyance  upon  this 
testimony;  bnt,  while  we  cannot  grant  the 
plaintiff  all  the  relief  he  asks  for,  there 
is  a  general  prayer  for  equitable  relief  to 
his  petition. 

The  defendant  testifies  that,  according  to 
her  agreement  with  the  plaintiff,  the  land 
was  not  to  be  sold  until  after  his  death, 
and  we  think  her  conduct  since  the  convey- 
ance bears  this  oat.  The  rent  collected  by 
her  son  since  the  conveyance  has  been  paid 
to  the  plaintiff,  and  she  has  never  been  in 
actual  possession,  claiming  In  opposition  to 
his  right  to  the  rents  and  ppfits.  We  are  of 
the  opinion  from  the  evidence  that  plaintiff 
never  intended  to  part  with  the  possession 
or  use  of  his  land  as  long  as  he  lived,  and 
that  the  conveyance,  while  absolute  in  its 
terms,  was  not  intended  to  give  to  the  de- 
fendant the  whole  estate  until  after  the 
plaintUTs  death.  He  testifies  he  never  meant 
to  part  with  the  land  while  he  lived;  and, 
while  he  denies  making  the  agreement,  the 
record  as  a  whole  convinces  us  that  in  all 
probability  the  deed  was  made  In  recogni- 
tion of  an  invalid  antenuptial  agreement  and 
upon  her  admitted  promise.  The  son  took 
title  only  as  an  intermediary ;  hence  the 
agreement  was  not  effected  by  the  deed  to 
.him.  We  are  of  the  opinion  that  the  right 
of  possession  of  the  plaintiff  during  bis  life- 
time should  be  protected  by  the  court,  even 
though  he  has  failed  to  pray  specifically  for 
such  relief. 

For  these  reasons,  the  Judgment  of  the 
district  court  is  reversed,  and  the  cause  re- 
manded, with  instructions  to  that  court  to 
enter   a   decree   finding   and  declaring   that 


the  plaintiff  or  his  grantees  or  assigns  is 
entitled  to  the  occupancy  and  possession  of 
the  land  described  In  the  conveyance  for 
and  during  the  term  of  his  natural  life,  sub- 
ject, however,  to  the  usual  obligations  of  a 
tenant  for  life,  and  as  to  other  matters  find- 
ing for  the  defendant 


JOHNSON  V.  TERRY  et  aL    (No.  16,316.) 
(Supreme  Court  of  Nebraska.     Oct  22,  1909.) 

1.  Habeas  Gobfus  (S  48*)  —  Jubmdictiok  — 
CouNxr  Court. 

Neither  a  county  court  nor  the  judge  there- 
of has  authority  to  issue  a  writ  of  habeas  cor- 
pus to  be  served  in  an  adjoining  county  for  thii 
purjiose  of  bringine  before  said  court  or  judge 
an  infant  under  the  age  of  18  years,  not  a 
resident  of  the  county,  to  the  end  that  a  judg- 
ment may  be  entered  to  determine  whether  the 
custodian  of  said  child  shall  be  deprived  of  th« 
possession  thereof. 

[Ed.  Note.— For  other  cases,  see  Habeas  Cor- 
pus, Cent  Dig.  f  46 ;   Dec.  Dig.  g  48.*] 

2.  Habeas  Cobfus  (S  90*)  —  Pboceediros  — 
Custody  of  Child. 

If  a  county  court  has  thus  acted  in  excess 
of  its  jurisdiction  and  the  father  has  sued  out 
a  writ  of  habeas  corpus  in  the  district  court  to 
recover  possession  of  his  child  and  the  respond- 
ents in  ueir  return  to  said  writ  plead  sufficient 
facts  to  authorize  the  court  under  article  2,  c 
20,  Comp.  St  1909,  to  make  an  order  di- 
vesting the  parent  of  such  custody.  It  is  the 
duty  of  the  district  court,  or  its  Judge,  to  pro- 
ceed with  all  reasonable  dispatch  to  try  the 
Issues  joined,  and  make  an  order  in  the  premises 
for  the  best  interests  of  the  child. 

[Ed.  Note. — For  other  cases,  see  Habeas  Cor- 
pus, Cent  Dig.  i  80;   Dec.  Dig.  S  90.*] 

3.  Habeas  Cobfus  (I  117*)  —  Custodt  or 
Child— Successive  Pboceedikos. 

If  a  final  order  has  been  entered  in  favor 
of  the  father,  in  a  preceding  habeas  corpus  case 
between  the  same  parties  awarding  him  the  cus- 
tody of  his  child,  tne  court,  in  a  subsequent  pro- 
ceeding between  the  same  parties,  under  chap- 
ter 20,  Bupra,  should  only  consider  evidence  con- 
cerning the  facts  that  have  occurred  ^ce  the 
execution  of  the  former  judgment, 

[Ed.  Note. — For  other  cases,  see  Habeas  Cor- 
pus, Cent  Dig.  S  119;    Dec.  Dig.  {  117.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Gage  County; 
Raper  and  Pemberton,  Judges. 

Habeas  corpus  by  J.  Alfred  Johnson 
against  Seth  Terry  and  others.  Judgment 
for  respondents,  and  relator  appeals.  Re- 
versed and  remanded. 

Kelligar  &  Ferneau,  Hall,  Woods  &  Pound, 
and  Hazlett  &  Jack,  for  appellant.  Rlnaker 
&  Kldd  and  McGirr  &  Terry,  for  appellees. 

ROOT,  J.  This  litigation  Involves  the 
right  of  relator  to  the  custody  of  bis  infant 
daughter,  Eflle  Johnson,  who  is  under  the 
age  of  14  years.  Many  of  the  facts  essen- 
tial to  a  proper  understanding  of  the  case 
are  related  in  Terry  v.  Johnson,  73  Neb.  653, 
103  N.  W.  319,  and  Terry  v.  State,  77  Neb. 
612,  110  N.  W.  733.    As  a  result  of  the  IIU- 


*For  otber  eases  see  same  topic  and  section  NUMBER  in  Dec.  &  Am.  Digs.  1S07  to  date,  ft  Reporter  Indexes 


Digitized  by 


Google 


Neb.) 


JOHNSON  V.  TERRY. 


985 


gatlon  reported  In  those  cases,  the  relator 
became  the  custodian  of  his  daughter,  and 
continued  to  act  In  that  capacity  until  the 
latter  part  of  June,  1909.  On  the  23d  day  of 
that  month  Seth  Terry,  one  of  the  respond- 
ents herein,  who  was  also  a  respondent  in  the 
preceding  litigation,  applied  to  the  county 
Judge  of  Gage  county  for  a  writ  of  habeas 
corpus,  and  alleged  that  the  relator  and  two 
of  his  sisters  In  Douglas  county  were  ille- 
gally deprlvlDg  Effle  Johnson  of  her  liberty. 
Thereupon  the  county  judge  Issued  his  writ 
commanding  the  sheriff  of  Oage  county  to 
release  Effle  Johnson  from  her  illegal  re- 
straint, and  bring  her  before  said  Judge  in 
Gage  county  to  abide  the  orders  thereafter 
to  be  made  by  that  official.  The  writ  was 
executed  In  Douglas  county  by  the  sheriff  of 
Gage  county,  and  the  child  produced  before 
the  county  court  of  Gage  county.  Mr.  John- 
son thereupon  procured  a  writ  of  habeas  cor- 
pus from  the  district  court  of  Gage  county 
to  recover  possession  of  his  daughter.  The 
facts  from  relator's  standpoint  are  stated  in 
the  petition,  and  the  details  of  the  antecedent 
litigation  between  the  parties,  Including  the 
▼arions  orders  and  Judgments  made  therein, 
minutely  set  forth.  A  writ  was  Issued 
against  Seth  Terry,  Laura  Terry,  his  wife, 
and  against  Menzo  Terry  and  Edgar  Terry. 
The  two  last  named  respondents  disclaimed 
any  Interest  in  the  proceedings  or  control 
over  the  child,  and  their  connection  with  the 
litigation  need  not  be  further  considered. 
The  other  respondents,  who  are  the  grandfa- 
ther and  grandmother,  respectively,  of  Effle 
Johnson,  Justify  under  an  alleged  appoint- 
ment of  Seth  Terry  by  the  county  court  of 
Gage  county  as  guardian  of  said  child.  They 
also  allege  that  the  relator  herein  has  neg- 
lected his  daughter;  and  permitted  her  to 
come  in  contact  with  persons  unfit  to  asso- 
ciate with  a  minor  child ;  that  they  are  able 
and  willing  to  properly  rear,  educate,  and 
care  for  their  grandchild ;  that  It  Is  for  the 
best  interests  of  the  child  that  her  custody 
be  changed,  and,  finally,  that  the  county 
court,  by  virtue  of  the  aforesaid  proceedings, 
first  acquired,  and  therefore  has,  exclusive 
Jurisdiction  of  the  subject-matter  of  the  liti- 
gation. Relator  admitted  the  Institution  and 
pendency  before  the  county  Judge  of  the  ha- 
beas corpus  proceedings  as  alleged,  and  there- 
upon the  district  court  refused  to  try  the 
case  upon  its  merits,  but  dismissed  relator's 
petition.    Relator  appeals. 

1.  The  arguments  and  briefs  of  counsel 
are  devoted  largely  to  a  consideration  of  the 
Jurisdiction  of  county  courts  and  county 
Judges  to  Issue  writs  of  habeas  corpus  under 
any  state  of  facts,  and,  whether,  If  that  Ju- 
risdiction exists,  such  writs  may  lawfully 
run  beyond  the  limits  of  the  county.  The 
arguments  are  not  devoid  of  merit,  but  we 
do  not  find  it  necessary  to  pass  upon  the 
questions  thereby  presented. 

In  1905  the  Legislature  passed  "An  act  to 
r^^nlate  the  treatment  and  control  of  de- 


pendent, neglected  and  delinquent  children." 
Chapter  50,  p.  305,  Laws  1905.  This  act, 
with  some  slight  amendments  made  In  1007 
(Laws  1907,  p.  185,  c  45),  Is  published  as 
article  2,  c.  20,  Comp.  St.  1909.  It  provides 
that  a  child  who  does  not  have  proper  paren- 
tal care  or  guardianship,  or  whose  home,  by 
reason  of  neglect,  cruelty,  or  depravity  on 
the<)art  of  Its  parents,  guardian,  or  other 
person  in  whose  care  the  child  may  be,  Is  an 
unfit  place  for  such  Infant,  Is  a  neglected  or 
dependent  child  within  the  meaning  of  the 
statute.  The  district  courts  of  the  several 
counties  in  the  state,  and  the  Judges  thereof 
In  vacation,  are  given  original  Jurisdiction 
of  all  cases  coming  within  the  terms  of  the 
act  The  county  court  is  given  Jurisdiction 
concurrent  with  the  district  court,  but  is 
not  permitted  to  exercise  that  power  unless 
the  district  Judge  is  absent  from  the  county. 
Any  reputable  person,  a  resident  of  the  coun- 
ty, having  knowledge  that  a  dependent  or 
neglected  child  is  within  that  county,  may 
file  with  the  cleric  of  the  court  having  Juris- 
diction of  the  matter  a  verified  petition  stat- 
ing the  facts,  and  thereupon  the  clerk  shall 
Issue  a  summons  commanding  the  person 
having  custody  of  said  child  to  appear,  with 
said  Infant,  before  the  court  within  24  hours 
after  service  of  the  writ  The  parents  or 
guardians  of  the  child,  If  known,  shall  also 
be  notified  of  the  pendency  of  said  proceed- 
ings. A  summary  hearing  is  provided  for, 
and  the  Judge  Is  authorized  to  release  the 
child  from  the  possession  of  its  custodian, 
and  commit  the  Infant  to  the  charge  of  some 
reputable  citizen  of  good  moral  character, 
or  to  the  control  of  accredited  institutions 
for  the  care  of  Infant  children,  or,  in  ex- 
treme cases,  to  a  state  Industrial  school.  The 
court  having  acquired  Jurisdiction  of  the 
child,  may  subsequently  make  such  further 
and  other  orders  as  may  be  proper  for  its 
best  interests.  The  act  provides  for  proba- 
tion officers,  and  a  complete  procedure  for 
the  prompt  dispatch  of  proceedings  Instituted 
by  virtue  of  the  statute.  The  act  Is  com- 
plete In  Itself,  and  repeals  by  implication 
all  other  prior  legislation  Inconsistent  there- 
with. If  before  the  passage  of  this  act  the 
county  court  of  Gage  county  had  Jurisdiction 
to  issue  a  writ  of  habeas  corpus  in  cases 
like  the  one  at  bar,  and  we  do  not  so  decide, 
that  authority  was  repealed  by  the  enact- 
ment of  article  2,  c.  20,  supra.  Such  being 
the  case,  what  disposition  should  be  made 
of  the  pending  litigation? 

Counsel  for  relator  argue  that  we  should 
direct  the  respondents  to  return  Effle  John- 
son to  Douglas  county.  If  the  order  to  be 
made  affected  relator  and  respondents  only, 
the  argument  would  be  pertinent,  but  we  are 
to  consider  first  the  welfare  of  the  Infant. 
There  Is  a  strong  presumption  that  the  father 
should  have  the  custody  of  his  child.  State 
V.  Porter,  78  Neb.  811,  112  N.  W.  286.  This 
assumption  is  reinforced  by  the  orders  and 
Judgments  of  this  court,  and  those  of  the 


Digitized  by  VjOOQ  l€ 


986 


122  NORTHWESTERN  RBPOKTEB. 


(Neb. 


district  court,  In  the  preceding  litigation  be- 
tween the  parties,  but  it  is  not  conclusive. 
Relator,  by  his  conduct  subsequent  to  the 
termluation  of  said  litigation,  may  hare  for- 
feited all  right  to  the  further  custody  of  his 
child,  and  the  court  should  determine  that 
fact  by  reference  to  the  events  that  have  oc- 
curred subsequent  to  the  date  relator  re- 
ceived the  custody  of  his  daughter,  ^at 
child  is  within  the  Jurisdiction  of  the  dis- 
trict court  of  Gage  county  and  of  its  Judges, 
under  the  provisions  of  article  2,  c.  20,  Gomp. 
St  1909,  and  the  pleadings  are  probably 
sufficient  to  bring  to  the  court's  attention 
every  fact  necessary  for  a  final  determina- 
tion of  the  controversy  between  the  parties 
hereto.  It  will  be  the  duty  of  the  district 
court,  If  In  session,  btherwise  of  one  of  the 
Judges  thereof,  upon  a  reversal  of  this  case 
to  try  it  with  all  convenient  speed  and  de- 
termine whether  relator  has  forfeited  his 
right  to  continue  as  the  custodian  of  his 
daughter,  and  if  so,  then  to  commit  her  to 
the  charge  of  some  reputable  person  able 
and  willing  to  care  for  and  educate  her.  In- 
asmuch as  respondents  have  secured  custody 
of  said  child  by  the  execution  of  void  process, 
an  order  should  be  made  depriving  them  of 
that  possession,  pending  a  determination  of 
this  case,  and  during  that  time  the  child 
should  either  be  placed  In  charge  of  her 
father,  upon  his  giving  security  for  her  pro- 
duction, to  abide  the  orders  of  the  district 
court  or  Judge,  or  given  In  charge  of  some 
reputable  person.  Unless  the  evidence  es- 
tablishes that  relator's  Influence  Is  detri- 
mental to  bis  daughter's  welfare,  the  final 
order  of  the  court,  in  any  event,  should  per- 
mit him  to  visit  his  child  at  all  proper  times 
and  places.  We  do  not  hold  that  article  2, 
c.  20,  Comp.  St.,  supra,  has  In  any  manner 
circumscribed  the  authority  of  the  district 
courts  to  issue  writs  of  habeas  corpus  ac- 
cording to  the  law  and  practice  existing  be- 
fore the  enactment  of  that  statute. 

The  Judgment  of  the  district  court  is  re- 
versed, and  the  case  remanded,  for  further 
proceedings  not  Inconsistent  with  this  opin- 
ion. 


THOMPSON  T.  STATE.    (No.  16,276.) 
(Supreme  Court  of  Nebrasluu    Oct.  22,  1909.) 

1.  Criminal  Law  (8  1159*)— AppEAii— Suffi- 
ciency OF  Evidence. 

Where,  in  a  criminal  prosecution,  the  evi- 
dence of  the  state,  if  believed  by  the  jury,  is 
sufficient  to  sustain  the  verdict,  the  fact  that  the 
evidence  is  somewhat  conflicting  will  not  require 
the  Supreme  Court  to  set  aside  the  judgment. 

[Ed.    Note. — For    other    cases,    see    Criminal 
Law,  Cent.  Dig.  |  307C;  Dec  Dig.  {  1150.»] 

2.  Criminai,  Law  (S  1159*)—AppeaI/— Credi- 
bility OF  Witnesses. 

Conflicting  statements  made  by  a  witness 
at  different  times  are  matters  to  be  considered 


by  the  jury  in  determining  his  credibility,  and 
are  not  for  the  consideration  of  the  court. 

[Ed.  Note.— For  other  cases,  see  Criminal  Law, 
Cent  Dig.  i  3077;   Dec  Dig.  i  1159.*] 

3.  CBnciKAi.  IiAW  (S  829*)— iRSTBUonoNs. 

It  is  not  error  to  refuse  to  give  an  instruc- 
tion stating  a  proposition  of  law  which  is  sub- 
stantially covered  and  included  in  an  instruc- 
tion already  given. 

[Eld.  Note. — For  other  cases,  see  Criminal 
Law,  Cent  Dig.  {  2011 ;  Dec.  Dig.  |  829.*) 

4.  Cbiuirai.  Law  ({  814*)— Tbiai^Irstbuc- 

TIONS. 

Where  the  evidence  shows  that  the  accused 
is  either  guilty  of  the  offense  charged,  or  not 
guilty  of  any  offense  whatever,  the  trial  court 
is  not  required  to  give  an  instruction  on  the 
lower  degree  of  crime  included  in  tiia  definition 
of  such  offense. 

[Ed.  Note. — For  other  cases,  see  Criminal 
Law,  Cent  Dig.  {  1924;   Dec.  Dig.  |  814.*] 

(Syllaboa  by  the  Court.) 

Error  to  District  0>ur^  Richardson  Coun- 
ty; Raper,  Judge. 

Hugh  Thompson  was  convicted  of  robbery, 
and  brings  error.    Affirmed. 

J.  B.  Leyda,  for  plalntUT  in  error.  W.  T. 
Thompson,  for  the  State. 

BARNES,  J.  Hugh  Thompson,  hereafter 
called  the  defendant,  was  convicted  of  the 
crime  of  robbery  from  the  person,  and  was 
sentenced  by  the  district  court  of  Richard- 
son county  to  serve  a  term  of  three  years  in 
the  state  penitentiary.  To  reverse  that  Judg- 
ment he  has  prosecuted  error  to  this  court 

1.  His  first  contention  Is  that  the  verdict 
is  not  sustained  by  sufficient  evidence.  We 
have  read  the  bill  of  exceptions  with  great 
care,  and  find  that  the  testimony  of  the  com- 
plaining witness  is  clear  as  to  the  fact  of 
the  robbery,  and  that  he  positively  identified 
the  defendant  as  the  man  who  robbed  him. 
It  also  appears  that  he  is  corroborated  by 
one  John  Hoppe,  who  was  with  him  at  the 
time  the  robbery  occurred.  The  evidence  for 
the  prosecution  discloses  that  the  prosecut- 
ing witness  and  his  companion  Hoppe  at 
about  the  hour  of  11  o'clock  p.  m.  of  the  day 
of  the  robbery  were  on  their  way  to  Hoppe's 
home  in  Falls  City,  where  they  Intended  to 
spend  the  night;  that  they  were  approadied 
by  the  defendant  and  another,  and  after 
some  conversation  they  all  started  to  the  B. 
&  M.  depot ;  that  on  the  way  the  prosecuting 
witness  asked  for  a  match  with  which  to 
light  his  pipe;  that  the  defendant  produced 
a  match,  and  held  his  coat  aa  a  wind  shield, 
and  the  witness  placed  his  head  Inside  the 
shield  to  light  .his  pipe,  when  he  was  struck 
on  the  head  by  the  defendant,  was  knocked 
down  and  two  silver  dollars,  which  he  had 
exposed  to  the  defendant's  view  when  he 
took  out  his  pipe  and  tobacco,  were  taken 
from  him.  While  it  appears  that  all  of  the 
parties  had  been  drinking  intoxicating  liquor 
to  some  extent,  and  that  Hoppe  was  some- 
what intoxicated,  yet  he  and  the  complaining 


•For  otber  cases  ie«  same  topic  and  lectton  NUMBBR  In  Dee.  *  Am.  Digs.  UOT  to  data,  *  Reporter  Indazaa 


Digitized  by  VjOOQ  IC 


Nelx) 


HUMPHRBY  T.  HAYS. 


987 


witness  both  seemed  to  have  a  pretty  clear 
comprehension  of  what  occurred.  It  was 
also  shown  that  the  defendant  wore  bat  one 
coat,  which  was  an  overcoat,  although  It 
was  then  the  latter  part  of  December;  that 
he  had  a  mark,  or  abrasion  on  bis  face  which 
was  quite  noticeable.  These  were  matters 
which  were  observed  by  several  witnesses, 
who  were  thas  enabled  to  Identify  him. 
Other  witnesses  testified  that  they  saw  the 
def^idant  and  his  companion  at  a  restaurant, 
about  the  saloons,  and  on  the  streets  of 
Falls  City  on  the  evening  in  question  shortly 
before  and  soon  after  the  robbery  occurred. 
This  evidence,  If  believed  by  the  Jury,  was 
sufficient  to  sustain  the  verdict.  On  the  oth- 
er hand,  the  defendant  and  his  companion 
denied  the  robber^,  testified  tbat  they  did 
not  see  the  prosecuting  witness  prior  to  the 
time  he. complains  of  having  been  robbed, 
and  did  not  see  him  or  know  him  at  all  until 
the  following  day,  and  after  they  were  ar- 
rested and  conflned  in  Jail  on  the  charge  in 
question.  They  also  testified  that  tbey  did 
not  arrive  in  Falls  City  until  about  9  o'clock 
p.  m.  on  the  day  the  offense  was  committed ; 
that  they  boarded  a  freight  train  at  about 
12  o'clock  that  night  and  went  to  Hiawatha, 
Kan.,  retarnlng  the  next  morning  to  Falls 
City.  It  will  thus  be  observed  that  accord- 
ing to  their  own  statements  they  were  in 
Falls  City  when  the  robbery  was  committed, 
and  80  the  only  conflict  in  the  evidence  re- 
lates to  the  question  of  the  Identity  of  the 
person  who  committed  the  offense.  The  Ju- 
ry having  resolved  that  controversy  against 
the  defendant,  the  vCidlct  should  not  be  set 
aside  for  want  of  evidence  to  sustain  it 

2.  It  is  strenuously  contended  that  the  evi- 
dence of  the  prosecuting  witness  Is  not  to  be 
believed  for  the  reason  that  on  the  prelimina- 
ry examination  be  stated  that  he  first  saw 
the  defendant  In  Falls  City  about  4  o'clock  in 
the  afternoon,  or  before  dark,  on  the  day  of 
the  robbery,  while  on  the  trial  in  the  dis- 
trict court  he  testified  that  he  first  saw  the 
defendant  late  in  the  evening  of  tbat  day. 
The  answer  to  this  contention  Is  that  these 
apparently  conflicting  statements  were  for 
the  consideration  of  the  Jury  In  determining 
the  credibility  of  the  witness,  and  do  not  au- 
thorize the  court  to  set  aside  the  verdict. 

3.  It  is  further  insisted  that  the  effect  of 
the  evidence  of  the  complaining  witness  is 
destroyed  by  his  statement  that  the  defend- 
ant held  a  match  for  htm  in  his  left  hand, 
and  struck  him  on  the  right  side  of  the  head 
with  his  right  hand.  It  appears  from  the 
record  that  the  witness  did  not  see  Just  how 
or  by  whom  the  blow  which  knocked  him 
down  was  delivered.  This  was  also  a  ques- 
tion affecting  the  credibility  of  his  testimony 
which  the  Jury  alone  had  the  right  to  deter- 
mine, and  it  is  not  a  matter  for  the  consid- 
eration of  the  court. 

4.  Defendant  also  assigns  error  for  the  re- 


fusal of  the  trial  court  to  give  the  follow- 
ing instruction:  "You  are  instructed  that. 
If  you  believe  any  witness  has  willfully 
sworn  falsely  to  a  fact  In  respect  of  which 
he  cannot  be  presumed  liable  to  a  mistake, 
you  may  give  no  credit  to  any  alleged  fact 
depending  upon  his  statement  alone."  It  ap- 
pears from  the  record  that  the  court  instruct- 
ed the  Jury  on  this  point  as  follows:  "The 
Jury  are  the  sole  Judges  of  the  credibility 
of  witnesses,  and,  if  the  Jury  find  that  any 
witness  has  testified  falsely  as  to  any  mate- 
rial fact  in  the  case,  you  are  at  liberty  to 
reject  and  disbelieve  all  of  bis  testimony." 
This  instruction  is,  in  substance,  the  same  as 
the  one  refused,  and  therefore  the  refusal 
was  not  prejudicial  error. 

6.  Defendant  further  contends  that  the 
trial  court  erred  in  falling  to  instruct  the 
Jury  on  the  question  of  an  alibi.  It  is  a 
sufficient  answer  to  this  contention  tbat  no 
such  defense  was  Interposed  by  the  defend- 
ant, and  there  Is  no  evidence  in  the  record 
tending  to  sustain  such  a  defense. 

6.  Finally,  it  is  urged  that  the  district 
court  erred  in  falling  to  instruct  the  Jury 
that  they  might  find  the  defendant  guilty  of 
larceny  only.  To  our  minds  this  did  not 
constitute  error.  In  this  case  the  defendant 
was  either  guilty  of  the  crime  charged  or 
not  guilty  of  any  offense  whatever.  No  facts 
were  shown  and  no  evidence  was  introduced 
which  would  Justify  the  court  in  giving  such 
an  Instruction.  Where,  in  a  criminal  prose- 
cution, there  Is  no  evidence  tending  to  prove 
the  commission  of  a  lower  offense  than  the 
one  charged  and  the  testimony  shows  that 
the  accused  is  either  guilty  of  the  higher  of- 
fense or  not  guilty  of  any  crime.  It  Is  un- 
necessary for  the  court  to  Instruct  on  a  lesser 
offense  which  may  fall  within  the  definition 
of  the  crime  charged.    12  Cyc.  640. 

After  a  careful  examination  of  the  record, 
we  find  ourselves  unable  to  reverse  the  Judg- 
ment without  Invading  the  province  of  the 
Jury.  While  it  Is  to  be  regretted  that  so 
severe  a  punishment  must  be  Inflicted  for  so 
small  an  offense,  one  which  may  have  been 
committed  by  the  defendant  while  he  and  his 
companions  were,  to  some  extent,  under  the 
Influence  of  intoxicating  liquor,  yet  that  Is 
a  matter  for  executive  clemency,  and  for 
which  the  courts  are  powerless  to  grant  re- 
lief. 

For  the  foregoing  reasons,  tbe  Judgment 
of  the  district  court  Is  affirmed. 


HUMPHREY  T.  HAYS  et  al.  (No.  15.787.) 
(Supreme  Court  of  Nebraska.  Oct.  22,  1009.) 
1.  Taxation   (J  790*)  —  Judgment  or  Tax 

FOBfcCLOSUBE  —  COLLATERAI,  ATTACK— SERV- 
ICE BT  Publication. 

A  decree  foreclosing  a  tax  lien  based  upon 
service  by  publication,  where  the  owner  of  the 
land  is  a  resident  of  this  state  upon  whom  per- 


•For  otber  ease*  tea  wuna  topic  and  isctloa  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


988 


122  NORTHWESTBRN  BEPORTER. 


(NebL 


sonal  service  of  snininona  could  have  been  made, 
and  the  affidavit  for  service  containg  no  atate- 
ments  which  would  authorize  constructive  service 
upon  the  land  against  which  the  taxes  were  as- 
sessed, is  void ;  and  such  a  decree  may  be  at- 
tncked  in  an  action  to  redeem  the  premises  from 
the  lien  for  taxes  and  remove  the  cloud  created 
thereon  by  such  void  decree. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  {  1584;   Dec  Die  I  799.*] 

2.  Taxation  (J  709*)— Void  Tax  Fobeclos- 

DBE— REDEHFnOir. 

In  such  a  case  the  plaintiff  should  be  allow- 
ed to  redeem  upon  the  payment  of  the  tax  lien, 
the  taxes  subsequently  paid  on  the  premises,  to- 
gether with  the  interest  thereon,  and  the  value  of 
the  permanent  improvements,  if  any,  made  upon 
such  premises  by  the  purchaser  or  those  claim- 
ing under  him. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent  Dig.  §f  1430-1435 ;   Dec.  Dig.  {  700.*] 

3.  Taxation  <|  809*)— Bbdeuptior— Offeb  to 
Do  Equitt. 

In  an  action  to  quiet  title  as  against  a  sale 
for  taxes  made  under  a  void  decree  of  court,  an 
offer  to  pay  such  sum  as  the  court  may  find  due 
the  defendants  on  account  of  any  lien  for  taxeu 
paid  is  a  sufficient  offer  to  do  equity  and  a 
sufficient  tender  of  any  taxes  due  the  defendants. 
Payne  v.  Anderson,  80  Neb.  216,  114  N.  W.  148. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  {  1601 ;    Dec.  Dig.  |  809.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Antelope  Coun- 
ty; Welcb,  Judge. 

Action  by  Setb  K.  Humphrey  against  Oil- 
ver  M.  Hays  and  others.  Judgment  for 
plaintiff,  and  defendants  appeaL    Affirmed. 

E.  D.  Kllbourn,  for  appellants. ,  C.  H.  Kel- 
sey  and  N.  D.  Jackson,  for  appellee. 

BARNES,  J.  Action  to  quiet  title  to  the 
southwest  quarter  of  section  7,  township  24, 
range  8  west.  In  Antelope  county.  Neb. 
Plaintiff  had  Judgment,  and  the  defendant 
has  appealed. 

It  appears  that  on  and  prior  to  the  8th  day 
of  September,  1899,  the  Stapleton  Land  Com- 
pany, a  corporation  duly  organized  under  the 
laws  of  the  state  of  Nebraska,  having  its 
principal  place  of  business  in  Douglas  coun- 
ty, was  the  owaer  of  the  land  in  question; 
that  taxes  for  the  years  1893-1808  bad  been 
assessed  against  the  land  and  at  that  time 
were  due  and  delinquent;  that  on  the  date 
first  above  mentioned  the  county  of  Ante- 
lope filed  its  petition  in  the  district  court 
to  foreclose  its  tax  lien  thereon;  that  a  de- 
cree was  rendered  in  said  action  and  the  land 
was  sold  thereunder  to  Emmett  Hays,  one  of 
the  defendants  herein,  who  received  a  sher- 
iff's deed  therefor;  that  thereafter  he  con- 
veyed the  premises  to  his  codefendant  OliTer 
M.  Hays.  It  further  appears  that  the  Ne- 
braska Farm  Land  Company,  a  successor 
to  the  Stapleton  Land  Company  above  men- 
tioned, took  over  all  of  the  real  estate  of 
the  former  company  and  became  the  owner 
thereof,  and  in  October,  1904,  sold  and  con- 
veyed the  premises  in  question  to  the  plain- 


tiff herein;  that  thereafter  plaintiff  com- 
menced this  action  for  the  purpose  above 
mentioned,  and  alleged  in  his  petition,  among 
other  things,  that  at  the  time  the  action  was 
commenced  the  then  owner  of  the  premises 
was  a  corporation  organized  and  existing 
under  the  laws  of  the  state  of  Nebraska, 
having  its  principal  place  of  business  In 
Douglas  county.  Neb.,  where  for  many  years 
both  before  and  after  the  commencement  of 
the  action  it  was  carrying  on  its  business  and 
maintaining  an  ofilce  where  personal  service 
of  summons  could  have  I>een  had  and  made 
in  said  foreclosure  suit  in  the  manner  pro- 
vided by  law;  that,  notwithstanding  that 
fact,  which  was  well  known  to  the  plaintiff 
In  the  tax  foreclosure  suit,  no  service  was 
bad  or  made  upon  the  then  owner  of  the 
land,  the  principal  defendant  therein,  and 
that  the  only  service  of  summons  In  said 
case  was  by  publication;  that  the  ^flldavit 
for  such  service  was  Insufficient  to  authorize 
service  upon  the  land  as  an  action  in  rem  and 
that  because  of  the  fact  of  its  insufficiency, 
and  because  the  plaintiff  in  that  action  could 
have  obtained  personal  serTtce  of  summons 
upon  the  then  owner  of  the  land,  which  was 
a  Nebraska  corporation,  and  whose  place 
of  business  at  that  time  was  in  Douglas  coun- 
ty in  said  state,  the  court  never  acquired  any 
Jurisdiction  to  enter  a  decree  foreclosing  the 
lien  of  Antelope  county  for  the  taxes  which 
had  theretofore  been  assessed  against  the 
premises;  that  said  Judgment  and  decree 
under  which  the  land  in  question  was  sold  to 
Emmett  Hays  was  void,  and  that  he  acquir- 
ed no  title  to  the  premises  thereby. 

There  seems  to  be  no  dispute  as  to  the 
truth  of  the  foregoing  statements.  It  is 
claimed,  however,  on  the  part  of  the  defend- 
ants, that  the  service  by  publication  atwve 
mentioned  was  not  void;  that  the  proceed- 
ings In  the  foreclosure  suit  were  regular,  and 
transferred  the  title  of  the  land  in  question 
to  the  defendants  herein.  In  support  of  tills 
contention  Loney  t.  Courtnay,  24  Neb.  580, 
39  N.  W.  616,  Is  cited.  That  was  a  case  to 
quiet  title  and  redeem  from  what  was  alleged 
to  be  a  void  foreclosure  sale.  There,  as  here, 
It  was  claimed  that  there  was  no  service 
other  tlian  by  publication.  There,  as  here, 
the  owner  of  the  premises  who  was  made  a 
party  defendant  was  a  resident  of  the  state, 
and  summons  could  have  been  served  upon 
him  therein.  A  decree  was  rendered  for  the 
plaintiff  without  requiring  him  to  pay  the 
amount  due  upon  the  mortgage.  On  appeal 
to  this  court  the  decree  of  the  district  court 
was  modified  so  as  to  require  the  plaintiff 
to  pay  to  the  defendant  the  unpaid  balance  of 
the  mortgage  debt,  together  with  the  inter- 
est thereon  within  90  days,  and,  as  thus  modi- 
fled,  the  Judgment  of  the  district  court  was 
affirmed.  Cases  are  cited  by  counsel  for  the 
defendant  on  plaintiff's  other  objections  to 
the  service,  but,  as  this  case  must  l>e  deter- 


'For  otber  cues  see  uiina  topic  and  section  NUMBBR  In  Dec.  &  Am.  Digs.  1907  to  data,  tt  Reporter  Indazea 


Digitized  by 


Google 


Neb.) 


DORSET  V.  WBLLMAN. 


989 


mined  upon  the  point  first  above  mentioned, 
it  Is  unnecessary  to  consider  tbem. 

In  Eayrs  v.  Nason,  54  Neb.  143,  74  N.  W. 
408,  the  precise  question  here  presented  was 
determined.  That  was  a  suit  to  quiet  the 
title  to  certain  real  estate  belonging  to  the 
plaintiff  which  had  been  sold  under  a  de- 
cree of  foreclosure  where  the  only  service 
made  was  by  publication.  It  appeared  that 
the  owner  of  the  equity  of  redemption  was 
made  a  party,  and,  when  constructive  service 
was  made  on  him,  he  was  a  resident  of  the 
state,  and  actually  present  therein.  It  was 
held  that  the  plaintiff,  who  was  the  heir  at 
law  of  the  defendant  In  the  foreclosure  suit, 
might  show  that  the  averments  of  thei  affi- 
davit to  procure  constructive  service  upon 
bis  ancestor,  that  he  was  then  a  nonresident 
of  the  state,  and  that  service  of  summons 
could  not  be  bad  on  him  in  the  state  were 
false;  and,  upon  such  proof  having  been 
made  to  the  satisfaction  of  the  court.  It  was 
declared  that  the  sherUTs  deed  held  by  the 
defendant  was  void.  It  was  thereupon  can- 
celed as  a  nullity  and  a  cloud  upon  plaintiff's 
title,  and  he  was  allowed  to  redeem  the  real 
estate  from  the  Hen  of  the  mortgage.  In 
Woods  Harvester  Co.  v.  Dobry,  59  Neb.  590, 
81  N.  W.  611,  It  was  held  that  a  summons 
served  constructively  on  a  resident  of  the 
state,  who  has  neither  absconded  nor  con- 
cealed himself  with  Intent  to  defraud  cred- 
itors or  avoid  service  of  process,  does  not 
confer  Jurisdiction  over  the  person  of  the 
defendant,  or  justify  a  rendition  of  a  Judg- 
ment condemning  his  property.  In  Hayes 
County  V.  Wlleman,  82  Neb.  669,  118  N.  W. 
478,  It  was  said  that  a  Judgment  rendered  on 
service  by  publication  against  a  resident  of 
this  state  on  whom  personal  service  might 
have  been  had  is  absolutely  void.  In  that 
case  It  appeared  that  Hayes  county  had  ob- 
tained a  decree  foreclosing  Its  tax  lien  upon 
the  premises  in  question.  After  decree  and 
sale  the  owner  of  the  land  filed  a  motion  to 
set  aside  the  Judgment  and  the  deed  execut- 
ed by  the  sheriff  upon  the  sale  of  the  prem- 
ises thereunder,  and  asking  that  he  be  allow- 
ed to  redeem  from  the  tax  lien.  The  trial 
court  refused  the  relief  asked  for,  and  upon 
appeal  to  this  court  the  Judgment  was  re- 
versed, ■  the  owner  was  allowed  to  redeem, 
and  his  title  was  quieted  upon  his  payment 
of  the  amount  of  taxes  and  Interest  due 
upon  the  land.  Such  has  been  the  uniform 
holding  of  the  court  upon  that  question.  It 
is  claimed,  however,  by  the  defendants  tliat 
the  plaintiff's  petition  In  this  case  was  In- 
sufllclent,  in  that  there  was  no  proper  offer 
or  tender  of  the  payment  of  the  taxes  In- 
cluded In  the  foreclosure  decree.  In  Payne 
V.  Anderson,  80  Neb.  216,  114  N.  W.  148,  It 
was  held  that  a  Judgment  or  decree  affecting 
the  title  to  land  owned  by  a  resident  of  this 
state  where  the  only  notice  is  by  publlca- 
catlon   Is   void   where  no   appearance  was 


made  by  or  for  such  resident;  that  In  an 
action  to  quiet  title  as  against  a  sale  for 
taxes  made  under  a  void  decree  of  the  court 
an  offer  to  pay  such  sum  as  the  court  may 
find  due  defendants  on  account  of  any  lien 
for  taxes  paid  Is  a  sufficient  offer  to  do  equity, 
and  a  sufficient  tender  of  any  taxes  due  the 
defendant  The  petition  in  this  case  con- 
tained such  an  offer,  and  it  follows  that 
our  former  rulings  upon  the  question  Involv- 
ed in  this  suit  require  us  to  affirm  the  Judg- 
ment of  the  district  court,  which  is  accord- 
ingly done. 
Judgment  affirmed. 


DORSET  V,  WELLMAN  et  al.    (No.  16,778.) 
(Supreme  Court  of  Nebraska.     Oct  22,  1909.) 

1.  Trial  (J  177*)— Motions  to  Dibect  Vkb- 
DiCT>— Waives  of  Jubt. 

Where  each  party  to  a  trial  by  iuiy  re- 
quests the  court  to  direct  a  verdict  in  his  favor, 
he  waives  the  right  to  any  finding  or  trial  of 
the  issnes  by  the  jury,  and  consents  that  the 
court  shall  find  the  facts  and  apply  the  law 
thereto. 

[Ed.  Note.— For  other  cases,  see  Trial,  Ctent. 
Dig.  §  400;    Dec.  Dig.  f  177.*] 

2.  Affeai,  ano  Ebbob  (S  1008*)  —  Review — 
Findings  bt  Coubt. 

A  finding  of  fact  made  by  a  court  in  the 
trial  of  an  action  at  law  is  entitled  to  as  much 
respect  as  the  verdict  of  a  Jury,  and,  if  there  is 
competent  evidence  to  support  the  finding,  it 
will  not  be  disturbed  on  appeal. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  i§  3955-3969;  Dec.  Dig.  f 
1008.*] 

3.  BiLM  AND  Notes  (8 146*)— Neootiable  In- 
struments Law— BrrEOT  on  Existing  In- 

eTBUMENTS. 

Chapter  41  of  the  (implied  Statutes  of 
1909,  the  negotiable  instrument  act,  does  not 
apply  to  actions  based  upon  instruments  execu- 
ted before  that  statute  became  effective. 

[Ed.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  S  361 ;   Dec.  Dig.  {  146.*] 

(Syllabus  by  the  Court.) 

Appeal  from  District  Court,  Douglas  (boun- 
ty;  Day,  Judge. 

Action  by  James  W.  Dorsey  against  Charles 
A.  Wellman  and  Thomas  Dorsey.  Judgment 
for  plaintiff,  and  Wellman  appeals.    Affirmed. 

John  C.  Stevens  and  John  W.  Parish,  for 
appellant  Alex  A.  Altschuler  and  Cbas.  T. 
Dickinson,  for  appellee. 

ROOT,  J.  This  action  was  brought  upon  a 
negotiable  promissory  note,  payable  to  bearer, 
by  a  second  Indorsee  thereof.  The  answer 
Is  somewhat  prolix,  but,  in  substance,  char- 
ges that  the  Instrument  was  secured  by  one 
Sullivan,  who  falsely  represented  himself 
to  defendant  to  be  a  physician  duly  licensed 
to  practice  medicine  in  Nebraska,  and  that 
he  was  the  manager  of  a  corporation  engaged 
through  Its  employ^  in  the  practice  of  medi- 
cine In  this  state.  Defendant  further  stated 
that  his  wife  was  afflicted  with  disease,  and 


•For  otbcr  euai  lee  lama  topic  and  lecUon  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indexee 


Digitized  by  VjOOQ  IC 


990 


122  NOBTHWBSTBRN  RBPORTER 


(Neb. 


that,  relying  on  SuIIlvan'B  statements  and  be- 
lieving tbem  to  be  true,  he  executed  the 
note  in  consideration  of  medical  treatment  to 
be  given  her,  and  the  further  representa- 
tion that  she  should  be  cured,  or  that  the 
note  need  not  be  paid.  Defendant  also  testi- 
fied that  medicine  was  sent  and  administer- 
ed to  his  wife,  but  that  It  was  valueless,  and 
did  not  cure  or  relieve  her.  There  are  other 
allegations  In  the  answer  not  essential  for 
an  uuderstaniding  of  this  case.  Plaintiff  re- 
plied by  way  of  a  general  denial.  Upon  the 
trial  plaintiff  Introduced  the  note,  and  rest- 
ed. Defendant  thereupon  asked  for  a  per- 
emptory  instruction  in  his  favor,  which  re- 
quest was  denied.  Defendant  then  testified 
and  introduced  other  evidence  sufficient  to 
establish  the  truth  of  the  allegations  in  his 
answer  relative  to  Sullivan's  statements  and 
the  falsity  thereof.  Plaintiff's  deposition  and 
the  indorsements  on  the  note  were  also  re- 
ceived in  evidence.  Each  litigant  at  the 
close  of  the  evidence  requested  the  court 
to  instruct  the  Jury  to  And  in  his  favor. 
Plaintiff's  motion  was  granted;  defendant's 
overruled.    Defendant  appeals. 

1.  Defendant  argues  that  a  Jury,  and  not 
the  court,  should  have  passed  upon  the  is- 
sues Joined,  and  that,  by  the  action  of  the 
court,  he  was  deprived  of  his  constitutional 
right  to  a  Jury  trial.  The  difficulty  is  that 
by  asking  for  a  peremptory  Instruction  at 
the  time  plaintiff  made  his  request  at  the 
close  of  the  evidence  defendant  waived  his 
right  to  a  verdict  by  the  Jury.  Segear  y. 
Westcott,  83  Neb.  515,  120  N.  W.  170. 

2.  Defendant  urges  that  the  evidence  does 
not  establish  that  plaintiff  is  a  bona  fide 
purchaser  for  value  of  the  note  in  suit  By 
requesting  a  peremptory  instruction  each  liti- 
gant admitted  the  truth  of  all  of  his  op- 
ponent's relevant  evidence,  and  all  Just  in- 
ferences that  might  be  drawn  therefrom. 
Plaintiff  testified  that  he  purchased  the  note 
in  November,  1902.  It  matured  In  December 
of  that  year.  Plaintiff  also  testified  that  he 
had  no  knowledge  of  the  facts  concerning 
the  history  of  the  note  at  the  time  he  acquir- 
ed it,  nor  any  of  the  facts  surrounding  the 
execution  of  the  instrument;  that  he  pur- 
chased it  with  other  notes,  and  could  not 
state  the  exact  consideration  paid  for  the 
identical  bill;  that  "I  did  not  Inquire  into 
the  consideration  upon  which  this  note  was 
based.  I  had  no  knowledge  at  the  time  what 
the  consideration  was.  I  had  the  money,  and 
I  desired  to  invest  it,  and  did  invest  it  in 
this  note  and  others  which  I  speak  of."  The 
evidence  proves  that  money  was  paid  for  the 
note,  and  negatives  that  plaintiff  bought 
with  knowledge  of  the  facts  surrounding  Its 
execution.  There  is  no  evidence  to  show 
that  plaintiff  believed  there  was  a  defense 
to  the  note,  or  that  he  acted  dishonestly  or 
in  bad  faith.  DCder  this  state  of  facts,  he 
Is  entitled  to  recover  even  though  the  facts 


and  circumstances  surrounding  his  purchase 
ought  to  have  excited  suspicion  In  the  mind 
of  a  prudent  man.  Dobbins  v.  Oberman,  17 
Neb.  163,  22  N.  W.  356 ;  Myers  v.  Dealer,  30 
Neb.  280,  46  N.  W.  479 ;  First  State  Bank  of 
Pleasant  Dale  v.  Borchera,  83  Neb.  530,  120 
N.  W.  142.  The  evidence  sustaina  the  judg- 
ment of  the  district  court. 

3.  Defendant  contends  that  the  negotiable 
instrument  law  (chapter  41,  Comp.  St  1909) 
imposes  a  greater  burden  upon  plaintiff  than 
existed  with  respect  to  plaintiffs  In  like  ac- 
tions before  the  passage  of  that  act  The 
act  was  passed  In  1905  (Laws  1905,  p.  889,  c 
83),  subsequent  to- the  execution  of  the  note  in 
suit  Section  193  of  the  act  provides  that 
the  statute  shall  not  apply  to  negotiable  in- 
struments made  and  delivered  prior  to  the 
taking  effect  of  said  act  Hmce  the  argu- 
ment falls. 

We  find  no  error  in  the  record,  and  the 
Judgment  of  the  district  court  Is  affirmed. 


BB3RBYMAN,  Co.  Atty.,  ▼.  SCHAHIiANDER 

et  al.    (No.  15,76&) 
(Supreme  Court  of  Nebraska.     Oct  22,  1909.) 

1.  Counties  (§  47*) — Countt  Comuibsionebs 

— AtTTHOMTY. 

A  county  board  or  board  of  county  commis- 
sioners are  clothed,  not  only  with  the  powers 
expressly  conferred  upon  them  by  statute,  but 
they  also  possess  such  powers  as  are  requisite 
to  enable  them  to  discharge  the  official  duties 
devolved  upon  tbem  by  law. 

[E3d.  Note. — For  other  cases,  see  CSonnties, 
Cent  Dig.  t  55 ;   Dec  Dig.  {  47.*] 

2.  Counties  (8§  138,  139*)— Cotnrrr  Boabd— 
PowEBS— Allowance  to  County  Attobnkt. 

The  matter  of  allowing  a  sum  to  the  county 
attorney  to  cover  actual  necessary  expenses  in- 
curred while  investigating  and  prosecuting  crim- 
inal cases  and  defending  cases  brought  against 
the  county  is  within  the  sound  discretion  of  said 
board,  and  said  board  may,  in  the  exercise  of 
such  discretion,  lawfully  allow  and  reimburse 
the  county  attorney  for  such  expenditures. 

[Ed.  Note.— For  other  cases,  see  Counties, 
Cent  Dig.  SS  203-207 ;   Dea  Dig.  H  138,  139.»] 

(Syllabus  by  the  Court) 

Appeal  from  District  C!oart,  Knox  (jonnty; 
Welch,  Judge. 

Action  by  James  H.  Berryman  against  O. 
F.  Schahlander  and  others.  Judgment  for 
defendants,  and  plaintiff  appeals.  Reversed 
and  remanded. 

J.  H.  Berryman,  for  appellant  i.  (i. 
Oreene,  for  appellees. 

FAWCETT,  J.  The  petition  alleges  sub- 
stantlally  that  from  January  6,  1905,  to  the 
present  time,  plaintiff  has  been  and  now  Is 
county  attorney  of  Knox  county;  that  said 
county  contains  2  cities  of  the  second  class, 
8  Incorporated  villages,  and  a  village  not  in- 
corporated, about  1,500  Indians,  and  an  In- 
dian reservation;  that  said  county  is  42 
miles  long  and  about  26  wide;  that  3  of  the 


•For  otbra  cases  se«  aam*  topic  and  lectlon  NUMBER  In  Dec.  ft  Am.  Digs.  U07  to  date,  ft  Reporter  Indezti 


Digitized  by  LjOOQIC 


Neb.) 


BBRR7MAK  t.  SCHAHLANDBB. 


991 


Tlllagea  of  said  county  are  not  accessible  by 
rail,  and  the  county  seat  Is  located  14  miles 
from  the  nearest  railroad  station;  that  dur- 
ing the  term  of  plalntUTs  Incumbency  be  has 
prosecuted  about  200  criminal  cases,  about 
two-thirds  of  which  have  been  for  oCCenses 
committed  In  parts  of  said  county  16  to  30 
miles  from  the  county  seat ;  that,  In  order  to 
try  said  cases  In  the  neighborhood  where  the 
offenses  were  committed,  it  was  necessary 
for  plaintiff  to  do  a  large  amount  of  travel- 
ing and  pay.  his  traveling  expenses  in  cash; 
that  by  pursuing  such  course  he  saved  a 
large  expendlturQ  In  sherifTs  and  witnesses' 
fees,  for  which  the  county  would  be  liable  In 
all  such  cases;  that,  if  he  had  procured  the 
arrest  of  such  offenders  and  subpcenaed  such 
witnesses  and  brought  them  to  the  county 
seat,  the  county  would  have  been  put  to  sev- 
eral times  the  expense  Incurred  by  plaintiff 
In  the  course  pursued;  that,  soon  after  en- 
tering upon  his  office  as  county  attorney,  he 
submitted  the  above  condition  of  things  to 
the  county  board  of  said  county,  and  advised 
said  county  board  that  from  $1,000  to  $2,000 
per  annum  could  be  saved  to  the  county  by 
the  course  above  indicated,  and  that  since 
said  time  the  system  of  the  county's  paying 
the  traveling  expenses  of  the  county  attorney 
in  enforcing  the  criminal  laws  of  the  state 
has  been  followed  In  said  county;  that  dur- 
ing the  January  meeting  of  the  board  each 
year.  Including  1907,  the  tioard  made  an  es- 
timate of  the  amount  of  money  necessary  to 
be  raised  by  taxation  for  the  then  current 
year  as  required  by  law  for  all  county  purpos- 
es, and  In  each  of  said  estimates  provided  for 
$1,200  per  annum  for  salary  and  expenses 
of  the  county  attorney,  being  $1,000  per  an- 
num for  salary  and  $200  for  traveling  ex- 
penses and  necessary  disbursements  connect- 
ed with  the  county  attorney's  office;  that  at 
the  July  meeting  of  1907  the  board  provided 
for  a  levy  of  that  character  for  said  purpose, 
and  no  objectiona  thereto  were  made;  that 
the  plaintiff's  claim  for  $21.84,  covering  ex- 
pense of  the  class  indicated  for  the  months 
of  April,  May,  and  July  as  per  bill  attached 
to  plalntlfTs  petition,  was  presented  to  the 
county  board  at  said  July  meeting,  and  was 
by  said  board  duly  allowed;  that  thereupon 
one  Jerome  Sharp,  a  resident  and  taxpayer 
of  said  county,  appealed  from  the  allowance 
of  said  claim  to  the  district  court,  and  filed  In 
said  court  a  transcript  of  said  proceedings 
and  cost  bond.  Plaintiff  further  alleges  that 
said  claim  has  no  connection  with  his  salary 
as  county  attorney,  but  is  to  reimburse  blm 
for  money  expended  in  said  sum  In  the  dis- 
charge of  his  duties  as  county  attorney  In 
the  enforcement  of  the  criminal  laws  of  the 
state,  and  prays  for  Judgment  In  said  sum 
of  $21.84  and  costs.  To  this  petition  the  said 
Sharp  filed  a  general  demurrer.  The  district 
court  sustained  the  demurrer  and  dismissed 
plaintllTs  petition.    Plaintiff  appeals. 

The  only  question  involved  in  this  action  la 
the  power  of  the  county  board  to  allow  plain- 


tiffs claim.  That  the  course  pursued  by  the 
board  and  plaintiff  has  resulted  in  a  great 
saving  to  the  county  is  evident  That  plain- 
tiff was  not  bound  to  travel  about  the  county 
in  the  manner  indicated  Is  clear.  He  could 
have  filed  his  complaints  at  the  county  seat, 
and  have  placed  warrants  for  the  arrest  of 
offenders  and  subpcenaes  for  witnesses  In  the 
hands  of  the  sheriff  for  execution,  a  course 
which  would  have  been  many  times  more  ex- 
pensive than  that  pursued.  This  system  was 
not  only  of  great  advantage  to  the  county  In 
the  saving  of  expense,  and  of  great  disad- 
vantage to  plaintiff  in  loss  of  time  and  labor 
and  exposure  of  travel,  but  undoubtedly 
resulted  in  a  more  vigorous,  prompt,  and 
efficient  enforcement  of  the  criminal  laws  of 
the  state.  That  such  action  of  the  county 
board  should  be  sustained  unless  clearly 
prohibited  by  express  statute  is  too  plain  to 
require  discussion.  We  Icnow  of  no  statute 
which  prohibits  it  A  similar  question  was 
submitted  to  the  Attorney  General's  office 
during  the  Incumbency  of  Hon.  0.  J.  Smythe. 
The  opinion  by  his  deputy,  Ed.  P.  Smith, 
Esq.,  meets  with  our  approval.  The  inquiry 
In  that  case  was  "whether  or  not  the  county 
Is  liable  for  livery  hire  engaged  by  the  county 
attorney  while  investigating  and  prosecuting 
criminal  cases,  and  defending  cases  brought 
against  the  county."  In  the  opinion  It  Is 
said:  "Tou  are  advised  that  it  la  the  opinion 
of  this  office  that  the  matter  of  allowing  a 
sum  to  the  county  attorney  to  cover  these 
expenses  Is  wholly  discretionary  on  the  part 
of  the  county  board.  If  the  bill  were  filed 
with  the  county  board  for  expenses  neces- 
sarily Incurred  and  actually  paid,  the  county 
board  might  in  Its  discretion  allow  and  pay 
the  same."  Report  of  Attorney  General, 
1897-98,  p.  29. 

Section  4440,  Cobbey's  Ann.  St,  In  defin- 
ing the  powers  of  a  county,  gives  the  county 
power  "to  make  all  contracts  and  to  do  all 
other  acts  in  relation  to  the  property  and  con- 
cerns of  the  county  necessary  to  the  exercise 
of  its  corporate  powers."  In  construing  this 
provision  of  the  statute  and  determining  the 
meaning  of  the  word  "necessary"  therein,  in 
Lancaster  County  v.  Green,  64  Neb.  98,  74 
N.  W.  430,  we  held:  "A  board  of  county  com- 
missioners, in  addition  to  the  powers  special- 
ly conferred  by  statute,  has  such  other  pow- 
ers as  are  incidentally  necessary  to  enable 
such  board  to  carry  Into  effect  the  powers 
granted.  The  word  'necessary'  considered, 
and,  in  respect  to  the  implied  powers  of  coun- 
ty commissioners,  held  to  mean  no  more  than 
the  exercise  of  such  powers  as  are  reason- 
ably required  by  the  exigencies  of  each  case 
as  it  arises."  In  the  opinion,  on  page  103 
of  54  Neb.,  page  432  of  74  N.  W.,  we  said: 
"The  county  commissioners,  therefore,  are 
clothed  not  only  with  the  powers  expressly 
conferred  upon  them  by  statute,  but  they 
also  possess  such  powers  as  are  requisite  to 
enable  them  to  discharge  the  official  duties 
devolved  upon  them  by  law.    It  was  not  prac- 


Digitized  by  VjOOQ  l€ 


992 


122  NORTHWESTERN  REPORTER. 


(Neb. 


tlcable  In  advance  to  enumerate  all  the  pow- 
ers which  the  board  of  county  commissioners 
might  be  permitted  to  exercise.  To  cover  all 
contingencies  very  general  language  was  em- 
ployed, and  from  this  consideration  it  neces- 
sarily results  that  the  question  whether  or 
not  the  board  has  exceeded  its  powers  must 
be  determined  upon  the  circumstances  of 
each  case  as  it  arises." 

We  do  not  think  the  question  of  the  power 
of  the  county  board  to  contract  in  advance 
for  expenditures  of  the  kind  in  controversy 
is  involved  bere.  The  simple  question  in- 
volved Is:  Did  the  board  have  the  power  to 
pay  the  necessary  expenses  of  the  county  at- 
torney incurred  while  prosecuting  the  busi- 
ness of  his  office  in  a  manner  which  was 
saving  to  the  county  large  sums  of  money 
each  year?  To  hold  that  it  did  not  have 
such  power  would  not  only  be  a  strained  con- 
struction of  the  statute,  but  would,  we  think, 
be  against  public  policy.  The  action  of  the 
board  In  allowing  plalntllTs  claim,  the  rea- 
sonableness of  which  is  not  questioned,  was 
a  lawful  exercise  of  the  discretionary  powers 
of  such  hoard,  regardless  of  any  prior  agree- 
ment in  that  behalf. 

The  Judgment  of  the  district  court  Is  there- 
fore reversed,  and  the  cause  remanded  for 
further  proceedings  In  harmony  herewith. 

Reversed  and  remanded. 


SECURITY  STATE  BANK  OP  WASHING- 
TON, NEB.,  V.  WATERLOO  LODGE  NO. 
102,  A.  P.  &  A.  M.,  et  al.    (No.  15,782.) 
(Supreme  Court  of  Nebraska.     Oct  22,  1909.) 

1.  Mortgages  (I  301*)— Costs  (8  42»)— Inter- 
est (S  50*)  —  DiscnABOE  of  Lien  —  Tendeb 
OF  Amount  Due— Offeb  to  Confess  Judo- 

KENT. 

As  a  general  rule,  the  tender  of  the  exact 
sum  due  upon  a  mortgage  debt  upon  the  "law 
day"  in  accordance  with  the  terms  of  the  iastru- 
tnent  operates  to  discbarge  the  mortgage  lien, 
and  thereafter  the  only  liability  is  upon  the 
note.  An  offer  to  confess  judgment  in  such  a 
case  after  action  is  brought  is  sufficient  to  re- 
lieve the  defendant  from  costs  and  interest  ac- 
cruing thereafter  without  paying  the  money  to 
the  clerk  of  the  court  at  the  time  the  offer  is 
made. 

TBd.  Note.— For  other  cases,  see  Mortgages, 
Cent.  Dig.  §|  876-888 ;  Dec.  Dig.  i  301  ;•  Costs, 
Cent.  Dig.  {  138;  Dec.  Dig.  I  42;*  Interest, 
Cent  Dig.  S  114 ;  Dec.  Dig.  i  50.*] 

2.  Interest  (J  50*)— Right  to. 

A  court  of  equity  will  not  be  diligent  in 
seeking  for  reasons  to  permit  a  creditor  to  recov- 
er interest  when  the  debtor  has  tendered  the 
full  amount  due,  and  when  the  creditor  has  by 
his  own  conduct  lost  the  right  to  recover  inters 
est. 

[Ed.  Note.— For  other  cases,  see  Interest, 
Cent.  Dig.  {  114;   Dec.  Dig.  i  50.*] 

3.  Tender  (§  18*)— Refusal  to  Accept— Sub- 
sequent DEMANn— Oppobtunity  to  Comply 
With. 

lit  a  creditor  prevents  payment  by  wrong- 
fully refusing  to  accept  the  amount  due  when 
tendered  by  the  debtor,  and  some  time  after- 
wards demands  it,  the  debtor  is  entitled  to  a 


reasonable  opportunity  to  comply  with  the  de- 
mand. 

[Ed.  Note. — Por  other  cases,  see  Tender,  Cent 
Dig.  i§  55,  57 ;  Dec  Dig.  S  18.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Douglas  Coun- 
ty;  Estelle,  Judge. 

Action  by  the  Security  State  Bank  of 
Washington,  Neb.,  against  Waterloo  Lodge 
No.  102,  A.  P.  &  A.  M.,  and  others.  Decree 
for  defendants,  and  plaintiff  appeals.  Af- 
firmed. 

John  C.  Wharton  and  Byron  O.  Burbank, 
for  appellant  Baldrldge,  De  Bord  &  Fra- 
denburg,  Thos.  A.  Holllster,  and  John  1.  Neg- 
ley,  for  appellees. 


LETTON,  J.  This  Is  an  action  to  fore- 
close a  mortgage.  The  note  to  secure  which 
the  mortgage  was  given  was  made  by 
Waterloo  Lodge  No.  102,  A.  P.  &  A.  M.,  for 
the  sum  of  f2,000,  dated  August  19,  1902, 
and  due  five  years  after  date,  with  interest 
at  6  per  cent.,  and  was  payable  to  the  Cit- 
izens' State  Bank  of  Waterloo,  or  order,  at 
its  banking  office  In  Waterloo,  Neb.  The 
mortgage  securing  the  note  contained  an 
agreement  that  the  mortgagor  "may  pay  one 
hundred  dollars  or  any  multiple  of  that  sum 
at  any  Interest  pay  day."  The  annual  inter- 
est was  paid  to  August  19, 1905.  The  19th  day 
of  August,  1906,  fell  upon  Sunday.  On  the 
18th  day  of  August  Mr.  Wllklns,  master  of 
the  lodge,  went  to  the  office  of  the  Citizens' 
State  Bank  of  Waterloo  and  tendered  to  Mr. 
H.  B.  Waldron,  the  cashier,  $2,120  in  full 
payment  of  the  note  and  Interest  under  the 
provision  allowing  the  payment  of  $100  or 
any  multiple  upon  any  Interest  pay  day.  Mr. 
Waldron  refused  to  receive  the  principal, 
giving  as  a  reason  that  the  note  was  not  due 
for  a  year,  but  he  accepted  the  $120  interest 
On  Monday,  the  20tb,  the  $2,000  principal 
was  again  tendered  at  the  same  place  with 
35  cents  as  accrued  interest  This  was  also 
refused.  Mr.  Waldron  was  then  Informed 
that  the  money  would  be  placed  on  deposit 
at  the  Bank  of  Waterloo  subject  to  the 
order  of  the  Citizens'  State  Bank,  and  this 
was  Immediately  done.  The  money  remained 
on  deposit  until  August  19,  1907,  when  It  was 
Withdrawn,  and  again  taken  by  Mr.  WUklns 
to  the  office  of  the  Citizens'  State  Bank  and 
tendered  to  Mr.  Waldron.  At  this  time 
Mr.  Waldron  refused  it,  saying  tlwit  the 
amount  was  insufficient  He  was  again  no- 
tified that  the  money  would  be  on  deposit 
at  the  Bank  of  Waterloo  as  before,  and 
It  was  so  placed.  On  October  28,  1907,  the 
panic  of  that  year  occurred.  The  evidence 
shows  that  banks  all  over  the  country  stop- 
ped payment  in  money,  especially  In  small 
sums,  and  the  evidence  further  shows  that 
the  daily  transactions  between  the  Cltlxens' 


*For  other  case*  see  same  topic  and  section  NUMBER  Is  Dec.  &  Am.  Digs.  190*  to  date,  A  R^ortar  IndexM 


Digitized  by  VjOOQ  l€ 


Neb.)       BECUBIXr  STATE  BANE  t.  WATERLOO  LODGE  102,  A.  F.  ft  A.  M. 


993 


State  Bank  and  the  Bank  of  Waterloo 
were  carried  on  by  means  of  cashier's  checks, 
which  in  sums  of  over  $100  were  usually 
made  payable  through  the  Omaha  Clearing 
House  and  with  the  Omaha  Clearing  House 
funds.  Shortly  before  4  o'clock  in  the  after- 
noon of  October  30th,  Mr.  Waldron  went  to 
the  Bank  of  Waterloo  and  said  to  the  cashier 
that  certain  money  had  been  left  there  by 
the  Masonic  Lodge  in  payment  of  a  note 
payable  to  the  Citizens'  State  Bank,  and 
said:  "I  want  to  make  a  demand  for  this 
money."  The  cashier  handed  him  a  draft 
upon  the  First  National  Bank  of  Omaha  for 
^,000.35.  He  refused  the  draft  and  demand- 
ed legal  tender  currency.  The  cashier  said: 
"Mr.  Waldron,  are  you  paying  your  custom- 
ers in  legal  tender  currency  these  days?" 
To  this  he  replied:  "That  has  nothing  to 
do  with  the  case."  After  his  refusal,  the 
bank  Immediately  telephoned  to  Omaha  and 
procured  $2,000  in  gold,  which  arrived  in 
Waterloo  the  next  day  about  5-^  p.  m.,  and 
after  banking  hours.  The  next  day  during 
banking  hours  Mr.  Wllklns  took  $2,001.15 
In  gold  to  the  Citizens'  State  Bank,  and  ten- 
dered It  to  Mr.  Waldron,  who  refused  to  re- 
ceive it  This  action  was  begun  that  day. 
On  Novemt>er  14th  Mr.  Wllkins  again  ten- 
dered to  Mr.  Waldron  at  the  bank  $2,019.49 
in  currency;  this  Included  $7.74  interest,  $9.- 
25  costs,  and  $2.50  for  good  measure.  An 
offer  to  confess  Judgment  for  the  same  sum 
was  also  made  and  filed  in  court  that  day. 
Before  the  maturity  of  the  note.  It  had  been 
indorsed  and  delivered  to  the  Security  State 
Bank  of  Washington,  Neb.,  of  which  bank 
Mr.  H.  B.  Waldron,  the  cashier  of  the  Citi- 
eens'  State  Bank  of  Waterloo,  was  presi- 
dent At  the  trial  the  district  court  found 
substantially  the  foregoing  facts.  It  fur- 
ther found  "that  It  was  a  physical  Impos- 
sibility for  the  Bank  of  Waterloo  to  make 
payment  of  the  sum  of  $2,000.35  on  October 
1,  1907,  In  legal  tender  currency."  It  fur- 
ther found  that  by  virtue  of  the  tenders 
made,  the  mortgage  lien  was  satisfied  and 
discharged,  and  that  the  plaintiff  was  not  en- 
titled to  recover  any  Interest,  except  as  in- 
cluded in  the  offer  to  confess,  or  any  costs 
other  than  the  amount  so  Included,  and  ren- 
dered a  decree  that  the  defendant  should 
pay  to  the  clerk  for  the  plaintiff  the  sum  of 
$2,019.49;  and,  this  having  been  done,  or- 
dered that  the  petition  of  the  plaintiff  be  dis- 
missed, and  that  a  release  and  satisfaction 
of  the  mortgage  be  delivered,  or,  in  lieu 
thereof,  that  the  decree  so  operate.  From 
this  decree  plaintiff  has  appealed. 

1.  Appellant  first  contends  that  the  tender 
of  August  18,  1906,  was  premature  because 
the  Interest  pay  day  was  August  19th.  The 
refusal  to  accept  the  money,  however,  was 
not  made  for  this  reason,  and  the  plaintiff, 
having  acc^ted  the  Interest  upon  the  18th 
cannot  now  say  that,  while  the  tender  as  to 
the  Interest  was  not  premature,  the  tender 
aa  to  the  principal  was.    Moreover,  the  19th 

122  N.w.-es 


was  on  Sunday,  and  the  tender  was  renew- 
ed on  Monday. 

2.  The  next  point  made  is  that  the  tender 
of  November  2d  was  of  no  effect  because 
made  after  the  suit  was  commenced.  There 
is  nothing  In  the  record  to  show  at  what  hour 
on  November  2d  the  petition  In  this  case  was 
filed  or  summons  served. 

3.  The  next  contention  is  that  the  ten- 
der of  August  20,  1906,  was  not  kept  good. 
The  money  tendered  on  August  20,  1906, 
was  immediately  deposited  In  the  "nnvV-  of 
Waterloo  to  the  credit  of  the  Citizens'  State 
Bank,  and  was  there  at  all  times  ready 
for  the  plaintiff,  until  on  and  bfter  Oc- 
tober 28,  1907,  when  a  flpanclal  panic  oc- 
curred and  nearly  every  bank  in  the  United 
States  suspended  payment  of  actual  money, 
except  in  small  amounts.  Taking  advantage 
of  this  condition  of  affairs,  Qie  president  of 
the  plaintiff  bank  demanded  the  deposit  from 
the  Bank  of  Waterloo  within  an  hour  before 
the  dose  of  banking  hours,  and  at  a  time 
when  It  may  safely  be  presumed  he  had  rea- 
son to  believe  .that  a  bank  in  a  small  country 
town  would  be  unlikely  to  have  that  amount 
of  currency  on  hand,  and  at  such  an  hour  In 
the  day  as  probably  to  make  it  impossible 
to  procure  the  money  from  some  other  place 
before  the  close  of  banking  hours.  The  mon- 
ey was  procured,  but  It  reached  Waterloo 
after  banking  hours  next  day,  and  was  again 
tendered  within  what  under  all  the  circum- 
stances, was  a  reasonable  time  after  demand. 
The  question  is  presented  whether  under  such 
circumstances  the  defendant  was  bound  to 
have  legal  tender  currency  or  gold  in  such 
a  position  that  Immediately  upon  demand 
It  was  required  to  produce  the  same  or  lose 
the  benefit  of  the  lawful  tender  made  by  it 
at  the  proper  time  and  place.  A  court  of 
equity  will  not  be  diligent  in  seeking  to  find 
reasons  to  permit  a  creditor  to  recover  in- 
terest when  the  debtor  has  attempted  to  pay 
and  when  the  creditor  has  by  his  own  con- 
duct lost  the  right  to  interest  and  more 
especially  in  a  case  where  he  seeks  to  take 
advantage  of  peculiar  circumstances  to  en- 
force a  demand  which  If  made  might  have 
been  satisfied  at  any  time  for  14  months  pre- 
ceding that  particular  day.  In  a  case  where 
an  assignee  failed  to  put  his  assignment  on 
record  or  to  give  the  debtor  notice  of  the 
assignment,  or  of  his  residence,  or  of  the 
place  where  payment  could  be  made.  Chan- 
cellor Walworth  said:  "A  court  of  equity, 
however,  will  not  permit  the  mortgagee,  or 
his  assignee,  to  take  an  unconscientious  ad- 
vantage of  the  mortgagor  who  is  willing  to 
pay  at  the  time  prescribed,  but  who  is  un- 
able to  do  so  in  consequence  of  th^  act  of 
the  other  party."  The  same  principle  Is  ap- 
plied in  another  case  under  somewhat  like 
circumstances,  and  the  court  says:  "By 
wrongfully  refusing  to  take  the  money  the 
creditor  violates  his  own  contract  and  the 
debtor's  right  By  such  a  wrong  he  cannot 
put  upon  the  debtor  an  unreasonable  burden 


Digitized  by  VjOOQ  l€ 


994 


122  NORTHWESTERN  REPORTER. 


(Neb. 


of  keeping  the  tendered  money.  There  Is 
other  money  as  good  as  that  If  the  creditor 
prevents  payment  by  wrongfully  refusing  to 
accept  it,  and  afterwards  demands  it,  the  debt- 
or Is  entitled  to  a  reasonable  opportunity  to 
comply  with  the  demand."  StraffordV.  Welch, 
59  N.  H.  46, 48;  Qllmore  v.  Holt,  4  Pick.  (Mass.) 
257;  Sharp  v.  Todd,  38  N.  J.  Eq.  324.  Even  in 
an  action  at  law  the  same  principle  Is  ap- 
plied.   Town  V.  Trow,  24  Pick.  (Mass.)  168. 

4.  The  principal  point  argued  in  the  ap- 
pellant's brief  is  that  the  use  of  the  money 
tendered  by  the  Bank  of  Waterloo  defeats 
the  tender,  and  it  is  insisted  that  since  the 
money  was  deposited  with  the  bank  as  a 
general  deposit,  commingled  with  the  gen- 
eral funds  of  the  bank  and  not  k^t  as  a 
special  deposit,  the  tender  was  not  kept  good. 
Assuming  that  it  was  necessary  to  keep  the 
tender  good,  we  think  there  Is  no  merit  in 
this  contention.  All  that  the  creditor  could 
ask  for  after  his  refusal  of  the  tender  was 
that  the  debtor  should  have  the  money  ready 
to  pay  over  to  him  upon  demand,  or  within 
a  reasonable  time  thereafter.  The  identical 
currency  which  bad  been  tendered  did  not 
become  the  property  of  the  creditor  upon  his 
refusal  to  accept  the  tender.  It  was  unneces- 
sary, therefore,  to  make  a  special  deposit 
of  it  with  the  bank.  If  the  defendant  bad 
used  this  money,  and  been  unable  to  meet 
the  demand  within  a  reasonable  time,  the 
result  would  be  different,  but  this  was  not 
the  case  here.  It  is  clearly  shown  that  the 
defendant  received  no  interest  or  advantage 
from  the  deposit  of  the  money.  It  was  sub- 
ject to  the  creditor's  demand  at  any  time 
up  until  October  28th,  the  day  the  evidence 
shows  banks  generally  suspended  payment 
in  gold  or  currency.  The  fact  that  the  money 
was  in  the  bank  as  a  general  deposit  in  no 
wise  prejudiced  the  plaintUt  or  interfered 
with  its  rights.  It  could  have  had  the  mon- 
ey any  day  for  14  months,  and  it  was  only 
when  In  all  probability  its  officers  knew  it 
could  not  be  brought  forth  immediately  that 
it  manifested  an  inclination  to  accept  it 
Davis  V.  Parker,  14  Allen  Olass.)  04;  Cheney 
V.  Llbby,  134  U.  S.  68,  10  Sup.  Ct  498,  33 
L.  Ed.  818;  Kerr  v.  Moore,  6  Cal.  App.  305, 
92  Pac.  107;  Shields  v.  Lozear,  22  N.  J.  Eq. 
447;  Dickerson  v.  Simmons,  141  N.  C.  325, 
53  S.  E.  850. 

6.  It  is  next  insisted  that  the  tender  was 
not  kept  good  by  bringing  the  money  into 
court.  The  whole  amount  due  had  been  re- 
peatedly tendered  and  refused.  Within  a 
few  days  after  the  action  was  brought  an 
offer  to  confess  Judgment  for  the  principal, 
the  accrued  interest  since  the  date  of  the 
last  tender,  and  the  costs  then  incurred  was 
made,  and  on  the  same  day  this  amount  was 
tendered  to  the  plaintiff's  president  at  the 
Citizens'  State  Bank  and  again  refused, 
and  at  the  trial  this  amount  was  actually 
produced  in  court  and  paid  to  the  clerk  of 


the  court  It  is  a  general  rule,  to  which  It 
is  possible  there  may  be  exceptions  under 
special  circumstances,  that  the  tender  of  the 
exact  sum  due  upon  a  mortgage  debt  upon 
the  "law  day"  In  accordance  with  the  terms 
of  the  instrument  operates  to  discharge  the 
mortgage  lien,  and,  whether  there  are  any  ex- 
ceptions to  this  rule  or  not,  we  think  this 
case  does  not  afford  room  for  doubt  When 
the  amount  actually  due  was  tendered  on 
the  "law  day"  which  in  this  instance  was  the 
day  when  by  the  terms  of  the  agreement  the 
debt  was  payable  if  the  debtor  exercised 
his  option,  the  lien  of  the  mortgage  was  dis- 
charged, and  thereafter  the  only  liability  was 
upon  the  note.  Tompkins  v.  Batle,  11  Neb. 
147,  7  N.  W.  747,  38  Am.  Rep.  361;  Moyer 
V.  Leavltt  (Neb.)  117  N.  W.  698;  Musser  v. 
King,  40  Neb.  892,  897,  59  N.  W.  744,  42  Am. 
St  Rep.  700;  Gould  v.  Armagost  46  Neb. 
897,  899,  65  N.  W.  1064.  Note  Moynahan  v. 
Moore,  77  Am.  Dec.  489;  Dickerson  v.  Sim- 
mons, supra;  Exchange  Fire  Ins.  Co.  v.  Nor- 
ris,  74  Hun,  527,  26  N.  Y.  Supp.  823;  Parker 
V.  Beasley,  116  N.  O.  1,  21  S.  E.  955.  33  U 
R.  A.  231,  and  note. 

This  being  so,  under  the  provisions  of  the 
Code,  the  offer  to  confess  Judgment  was  am- 
ply sufficient  without  paying  the  money  to 
the  clerk  of  the  court  at  the  time  the  offer 
was  made  and  defendant  was  relieved  from 
all  costs  and  interest  accruing  thereafter. 
It  is  true  that  in  actions  to  redeem.  In  actions 
of  ejectment  against  the  mortgagee  in  pos- 
session and  like  proceedings,  it  has  frequent- 
ly been  held  that  the  amount  due  must  be 
brought  Into  tne  court  with  the  filing  of  the 
bill  or  of  the  petition,  but  this  is  a  case  of 
a  different  character,  and  the  cases  cited  by 
the  plaintiff  upon  this  branch  of  the  case,  we 
think,  are  Inapplicable. 

We  are  of  opinion  that  the  offer  to  con- 
fess Judgment  and  the  tender  made  that  day 
were  ample  In  amount  to  cover  all  that  plain- 
tiff was  entitled  to  recover. 

The  judgment  of  the  district  court  was 
right,  and  is  affirmed. 


BBOKMAN  V.  LINCOLN  &  N.  W.  R.  CO. 
(No.  15.779.) 

(Supreme  Oonrt  of  Nebraska.    Oct  22,  1909.) 

1.  Election   of   Remedies   (8   3*)— Pboceed- 
iNGS  TO  Take  Pbopebtt  and  Assess  Coit- 

PENSATION— TbIAL  ON   APPEAL. 

A  railroad  company  which  had  leased  its 
road  to  another  company  instituted  proceedinRn 
in  the  county  court  for  the  purpose  of  condemn- 
ing the  real  estate  of  a  landowner  for  rieht  of 
way  purposes.  The  landowner  appeared  and 
contested  the  jurisdiction  of  the  court  upon  the 
grround  that  the  company  geeking  to  exercise  the 
right  of  eminent  domain  was  not  the  real  party 
in  interest.  His  objection  was  overruled,  and 
the  report  of  the  appraisers  awarding  $2,700  was 
confirmed.  He  then  appealed  to  the  district 
court,  alleging  the  same  facts,  and  averred  that 
bis  damages  were  ?7,000.     He  also  sought  to 


•Vor  otawr  cases  see  sama  topic  and  section  NUMBUR  In  Dec.  &  Am.  Digs.  1907  to  dat«,  4  Reporter  Index** 


Digitized  by  LjOOQIC 


Neb.) 


bECKMAN  T.  LINCOLN  &  N.  W.  R.  CO. 


995 


enjoin  the  proceedings,  alleging  tlie  want  of  ju- 
risdiction. The  injunction  being  denied,  he  then 
amended  his  petition  claiming  the  increase  of 
damages  as  demanded  in  his  first  petition.  Held, 
that  his  proceeding  to  defeat  the  condemnation 
was  not  such  an  election  of  remedies  as  would 
prerent  him  from  litigating  as  to  the  amount  of 
damages. 

[Ed.  Note. — For  other  cases,  see  Election  of 
Remedies,  Cent.  Dig.  SS  S,  4;   Dec.  Dig.  i  3.*] 

2.  EunoiNT  DouAiir  (|{  131,  111*)— Coicfer- 

BAITON — MEASUBE. 

In  a  proceeding  to  condemn  real  estate  for 
the  purposes  of  right  of  way  for  a  railroad  com- 
pany, "the  landowner  is  entitled  to  full  compen- 
sation for  the  land  actually  talcen,  and  for  such 
damages  to  the  residue  of  the  land  as  are 
equivalent  to  the  diminution  in  value  thereof." 
Fremont,  B.  &  M.-  V.  R.  Co.  ▼.  Meeker,  28  Neb. 
M,  44  N.  W.  79. 

(EJd.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  St  353,  372-376;  Dec  Dig.  SS 
131,  141.*] 

3.  Eminent  DoitAiH  (M  110,  111*)— Compen- 
sation—Injuries  TO  Property  Not  Taken. 

In  an  inquiry  whether  and  bow  much  the 
part  of  a  farm  not  taken  for  railroad  right  of 
way  is  depreciated  in  value  by  the  appropri- 
ation of  a  part,  it  is  proper  for  the  jury  to  con- 
sider the  liability  of  stock  being  killed,  and  the 
danger  from  fire  from  passing  trains.  See  Fre- 
mont, B.  &  M.  v.  R.  Co.  V.  Bates,  40  Neb.  881, 
58  N.  W.  859. 

[Ed.  Note. — ^For  other  cases,  see  Eminent  Do- 
main, Cent.  Dig.  §;  294,  296,  297,  298 ;  Dec  EHg. 
SI  110,  111.*] 

4.  ElMiNENT  DoiCAiR  (|  282*)— APPEAL— Habm- 
u:s8  Ebbob. 

The  trial  court  instructed  the  jury  that,  if 
the  amount  of  damages  found  by  them  did  not 
exceed  $2,700,  no  interest  should  l>e  allowed, 
but,  if  it  exceeded  that  sum,  they  should  com- 
pute interest  on  the  amount.  The  giving  of  the 
instruction  was  excepted  to  for  the  reason  that, 
by  inference,  it  Informed  the  jury  of  the  sum 
awarded  by  the  appraisers.  Defendant  offered 
another  one,  which  directed  the  jury  to  find  dam- 
ages and  interest  separately  and  unadded,  which 
instruction  was  refused.  Held,  that  while  the 
instruction  refused  might,  under  the  circumstan- 
ces, have  been  the  l>etter,  yet  the  giving  of  the 
one  submitted  would  not  require  a  reversal  of 
the  judgment 

[Ed.  Note. — For  other  cases,  see  Eminent  Do- 
main, Dec  EHg.  S  262.*] 

5.  JUBT  (I  110*)— Verdict— Impeachment. 

After  the  rendition  of  the  verdict  affidavits 
of  a  number  of  jurors  were  filed,  showing  that 
during  the  deliberations  of  the  jury  one  of  their 
number  stated  that  another  railroad  company 
had  constructed  its  road  across  his  land,  and 
that  he  knew  the  inconvenience  of  it,  and  that 
his  vote  was  for  a  larger  sum  than  that  returned 
by  the  verdict.  It  being  shown  that  substan- 
tially the  same  statement  was  made  by  the  ju- 
ror on  bis  voir  dire  examination,  it  is  held  that 
defendant  cannot  be  heard  to  complain ;  there 
bein^  no  showing  that  it  could  not  have  exclud- 
ed him.  The  question  of  the  propriety  of  receiv- 
ing such  affidavits  for  the  purpose  of  impeaching 
the  verdict  is  not  decided. 

[Ed.  Note.— For  other  cases,  see  Jury,  Cent. 
Dig.  S{  518,  520;   Dec.  Dig.  {  110.*] 

rSyllabuB  by  the  Court) 

Appeal  from  District  Court,  Lancaster 
County ;  Frost,  Jndge. 

Proceedings  to  assess  compensation  for 
land  of  Fred  Beckman  condemned  by  the 
Lincoln  &  Northwestern  Railroad  Company. 


From  the  Judgment  for  plaintiff,  the  railroad 
company  appeals.    Affirmed. 

James  B.  Kelby,  H.  F.  Rose,  and  Frank  E. 
Bishop,  for  appellant  Field,  Rli^etts  &  Rlck- 
etts,  for  appellee. 

REIESE,  O.  J.  This  is  an  appeal  from  the 
judgment  of  the  district  court  of  Lancaster 
county  In  a  proceeding  by  defendant  to  con- 
demn a  portion  of  the  land  of  plaintiff  for 
right  of  way  for  the  railroad  track  of  the  de- 
fendant The  principal  question  Involved  is 
the  amount  of  damages  plaintiff  is  entitled 
to  receive.  The  verdict  of  the  jury  was  for 
more  than  that  appraised  by  the  commission 
appointed  by  the  county  court.  Preliminary 
to  this,  however,  is  the  contention  by  defend- 
ant that  the  district  court  was  without  au- 
thority or  jurisdiction  to  Inquire  Into  the 
question  of  damages  for  the  reason  that  the 
appeal  was  not  from  the  judgment  of  ttiB 
county  court  awarding  damages,  but  from 
the  order  of  that  court  in  taking  any  action 
in  the  matter.  The  appeal  was  filed  in  the 
district  court  In  due  time.  A  petition  was 
filed  by  plaintiff  In  which  be  contested  the 
right  of  the  defendant  to  condemn  his  land 
for  right  of  way  purposes  for  the  reason  that 
It  was  not  the  real  party  in  Interest ;  It  having 
leased  Its  line  of  road  to  another  railroad 
company.  The  petition  set  out  the  proposed 
line,  and  contained  averments  of  facts  show- 
ing the  injury  to  the  property  vrith  the  alle- 
gation that  the  damages  sustained  would  be 
the  sum  of  $7,000,  which  was  more  than  the 
amount  awarded  by  the  appraisers.  He  also 
instituted  an  action  In  injunction  seeking  to 
restrain  the  defendant  from  proceeding  with 
the  condemnation  of  a  portion  of  bis  land. 
That  suit  was  finally  decided  against  the  con- 
tention of  plaintiff,  the  case  being  r^wrted 
in  79  Neb.  89,  112  N.  W.  348.  Plaintiff,  over 
the  objections  of  defendant,  filed  his  amended 
petition,  claiming  damages  in  the  amount 
named  In  his  former  petition.  Defendant  fil- 
ed its  answer  controverting  plaintifTs  right 
to  try  the  question  of  damages,  "because 
plaintiff  has  not  appealed  from  the  award  of 
damages  made  by  the  commission  in  the  con- 
demnation proceedings,  but  filed  objections  to 
the  jurisdiction  in  said  condemnation,  and  In 
the  original  petition  filed  in  this  proceeding 
has  prayed  for  the  dismissal  of  said  condem- 
nation." The  answer  also  denied  that  plain- 
tiff had  been  damaged  for  the  land  taken  in 
any  greater  sum  than  $1,400.  Plaintiff  re- 
plied by  a  general  denial. 

It  is  claimed  by  defendant  that,  plaintiff 
having  elected  to  appeal  on  the  question  of 
jurisdiction,  he  Is  bound  by  that  proceeding, 
and  should  not  be  permitted  to  shift  his  ap- 
peal to  one  involving  the  question  of  dam- 
ages. In  other  words,  he  is  bound  by  his  elec- 
tion. We  cannot  agree  with  defendant  in 
this  contention.    Plaintiff's  first  petition  not 


•For  other  cum  see  wme  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


996 


122  NORTHWESTERN  REPORTER. 


(K^ 


only  questioned  the  Jarisdlctlon  of  the  court, 
but  specifically  raised  the  question  of  dam- 
ages. But,  had  he  not  done  so,  we  would 
still  have  to  hold  that  the  appeal  transferred 
the  whole  case  to  the  district  court,  and  the 
fact  that  plaintiff  questioned  Its  jurisdiction 
could  not  have  the  effect  of  depriving  him  of 
the  right  to  question  the  amount  of  damages 
awarded  him ;  his  attack  upon  the  Jurisdic- 
tion falling.  In  so  far  as  the  subject  of  dam- 
ages was  concerned,  no  new  pleadings  were 
necessary.  Fremont,  E.  &  M.  V.  R.  Co.  v. 
Meeker,  28  Neb.  94,  44  N.  W.  79.  The  Juris- 
diction of  the  court  having  been  sustained, 
the  cause  was  pending  for  trial  on  its  merits. 
The  rule  that  a  party  cannot  shift  his  contri- 
tion to  the  prejudice  of  another  has  no  ap- 
plication here.  There  has  been  no  change 
in  plaintiff's  attitude  as  to  the  question  of 
damages,  or  on  any  fact  upon  whidi  his 
claim  therefor  was  Iwsed. 

A  number  of  questions  propounded  to 
plaintiff  and  his  witnesses  were  objected  to, 
the  objections  overruled,  and  to  which  de- 
fendant excepted.  To  discuss  them  separate- 
ly would  extend  this  opinion  to  an  unwar- 
rantable length.  The  legal  propositions  pre- 
sented will  be  noticed.  It  was  conceded  that 
the  land  taken  comprised  7  acres  in  a  strip 
150  feet  wide  through  plaintiff's  quarter  sec- 
tion, leaving  12  acres  on  one  side  of  the 
track  and  141  on  the  other,  12  acres  having 
been  previously  taken  for  right  of  way  for 
another  track.  Plaintiff  sought  to  prove  the 
value  of  the  seven  acres  actually  taken  and 
the  diminution  of  the  value  of  the  remaining 
land ;  the  whole  being  a  farm  in  one  compact 
body.  To  this  defendant  objected.  Its  con- 
tention is  that  the  valuation  of  the  seven 
acres  should  be  based  upon  the  average  acre- 
age value  of  the  farm.  There  was  evidence 
that  the  seven  acres  was  of  the  best  portion 
of  the  land,  and  hence  the  most  valuable.  In 
addition  to  proving  the  value  of  the  land  ac- 
tually taken,  the  court  permitted  evidence 
tending  to  show  the  value  of  the  whole  148 
acres  immediately  before  the  condemnation 
proceedings  and  after.  This  ruling  was  aft- 
erwards corrected,  and  the  witness  then  tes- 
tified as  to  the  value  of  the  141  acres  before 
taking,  excluding  the  7  acres  taken.  How- 
ever, this  did  not  materially  change  the  sit- 
uation, as  the  testimony  of  the  witness  relat- 
ing to  the  values  was  practically  the  same. 
He  had  estimated  the  value  of  the  whole  148 
acres  at  $75  to  $80  an  acre  before  the  loca- 
tion of  the  road,  and  in  his  subsequent  testi- 
mony stated  that  he  thought  the  141  acres 
was  worth  $80  an  acre  before  the  construc- 
tion of  the  road.  To  the  mind  of  the  writer 
the  contention  of  defendant  Is  a  little  diffi- 
cult of  comprehension.  From  the  adoption  of 
our  present  Constitution  In  1875  to  the  pres- 
ent time,  the  uniform  holding  of  this  court 
has  been  that  in  the  exercise  of  the  right  of 
eminent  domain  by  the  condemnation  of  real 
estate  for  purposes  of  right  of  way  the  land- 
owner was  entitled  to  tlie  value  of  the  land 


actually  taken  and  the  diminution  In  value 
of  the  land  not  taken  as  his  damages.  Fre- 
mont, E.  &  M.  V.  R.  Co.  V.  Whalen,  11  Neb^ 
585,  10  N.  W.  491;  Republican  V.  R.  Co.  v. 
Arnold,  13  Neb.  485,  14  N.  W.  478;  Republi- 
can V.  R.  Co.  V.  Linn,  15  Neb.  234,  18  N.  W. 
35 ;  Blakeley  v.  Chicago,  K.  &  N.  Ry.  Co.,  25 
Neb.  207,  40  N.  W.  956 ;  Chicago,  K.  &  N.  R. 
Co.  V.  Wiebe,  25  Neb.  542,  41  N.  W.  297; 
Fremont,  E.  &  M.  V.  R.  Co.  v.  Meeker,  28 
Neb.  94,  44  N.  W.  79;  Burlington  &  M.  R.  R. 
Co.  V.  White,  28  Neb.  160,  44  N.  W.  95.  The 
instructions  of  the  court  on  the  trial  follow- 
ed this  rule.  Had  the  court  adhered  to  the 
rule  adopted  in  the  early  stages  of  the  trial, 
there  might  be  ground  for  complaint,  yet,  as 
to  this,  we  are  not  certain  in  the  light  of 
former  decisions.  However,  tince  the  rule 
contended  for  by  defendant  was  finally  adopt- 
ed by  the  court,  there  is  no  ground  for  com- 
plaint 

It  is  next  contended  that  there  was  error 
In  the  instructions  given  to  the  Jury.  The 
eighth  is  too  long  to  be  here  copied.  The 
different  elements  of  damage  to  the  land  not 
taken  were  stated  with  exactness,  at  least  in 
part,  "the  liability  of  stock  to  be  killed,  the 
danger  of  fire  from  passing  trains,  and  all 
other  circumstances  caused  and  produced  by 
the  location  of  defendant's  right  of  way  over 
and  across  plaintiff's  farm  in  the  maimer 
which  the  evidence  shows  It  to  have  been 
located,"  forming  a  portion  thereof  and  to 
which  exception  Is  taken.  Were  this  an 
open  question  in  this  state,  we  would  be 
strongly  inclined  to  hold  with  the  earlier 
decisions  that  the  giving  of  the  instruction 
above  quoted  without  the  limitation  to  the 
use  of  the  road  without  negligence  on  the 
part  of  defendant  was  prejudicial  error,  as 
the  law  gives  ample  remedies  when  stock  is 
killed  or  fires  started  by  the  negligent  use  of 
trains,  but  not  where  negligence  is  absent 
However,  the  principle  of  the  instruction  has 
been  approved  In  Fremont,  E.  &  M.  V.  R.  Co. 
V.  Bates,  40  Neb.  381,  68  N.  W.  959,  Omaha 
S.  R.  Co.  V.  Todd,  39  Neb.  818,  58  N.  W. 
289,  Chicago,  B.  &  Q.  R.  Co.  v.  O'Connor,  42 
Neb.  90,  60  N.  W.  326,  and  Chicago,  R.  I. 
&  P.  R.  Co.  V.  O'Neill,  58  Neb.  239,  78  N.  W. 
521,  and  cannot  now  be  departed  from. 

The  court  instructed  the  Jury  that  if  their 
finding  of  damages  did  not  exceed  the  sum 
of  $2,700,  no  interest  should  be  allowed,  but 
that  if  they  found  above  that  sum,  interest 
should  be  computed  by  them  at  the  legal 
rate.  The  criticism  of  this  instruction  is 
that  by  inference  It  informed  the  Jury  of 
the  amount  found  due  by  the  appraisers,  and 
was,  in  effect  a  suggestion  which  might  in- 
duce them  to  find  for  more  than  that  sum  in 
order  to  give  plaintiff  interest.  It  is  pos- 
sible that  such  might  have  been  the  effect 
of  the  instruction,  and  yet  we  cannot  setf 
that  it  was  reversible  error.  In  Bolar  v. 
Williams,  14  Neb.  386,  15  N.  W.  716,  an  at- 
torney In  trying  a  case  before  a  Jury  in  the 
district  court  stated  that  the  cause  had  been 


Digitized  by  VjOOQ  l€ 


N.D.) 


HOPB  V.  GRBAT  NORTHERN  RY.  CO. 


997 


tried  In  ^stice  court,  giving  the  result  No 
exception  was  taken  and  the  question  was 
not  presented  for  review,  but  the  remark 
was  referred  to  as  "a  gross  breach  of  pro- 
priety," etc.  There  Is  no  contention  In  this 
case  but  that  the  rule  given  was  correct,  but 
It  Is  claimed  that  It  should  ^ave  been  given 
In  another  way.  For  the  purpose  of  obviat- 
ing this  difficulty,  defendant  asked  an  In- 
struction directing  the  Jury  to  find  the  dam- 
ages and  Interest  separately  and  unadded. 
This  Instruction  was  refused.  It  Is  probable 
that  the  plan  suggested  by  defendant  would 
have  been  the  better  method,  but  It  Is  not 
thought  for  that  reason  the  Judgment  should 
be  reversed.  It  would  be  by  Inference  alone 
that  the  former  finding  could  be  surmised  by 
the  Jury.  From  the  Instruction  given  the 
Jury  might  seek  a  reason  for  It  and  might 
arrive  at  the  correct  solution,  but  such  Is  not 
shown  by  the  record  to  be  the  fact.  Other 
Instructions  were  asked  and  the  refusal  to 
give  them  Is  assigned  for  error,  but  we  find 
nothing  In  the  action  of  the  court  in  that 
behalf  to  the  prejudice  of  defendant 

After  the  returning  of  the  verdict  affida- 
vits of  Jurors  were  filed,  stating,  In  sub- 
stance, that  one  of  the  Jurors  who  desired  to 
return  a  larger  verdict  than  that  rendered 
had  stated  in  the  Jury  room  during  their  de- 
liberations that  another  railroad  company 
had  constructed  Its  road  across  his  land  and 
that  he  knew  the  Inconvenience  of  It,  and 
that  his  vote  was  from  $3,500  to  $4,200.  The 
verdict  was  for  $3,659.32,  Including  interest 
at  7  per  cent,  for  the  one  year  and  six 
months,  making  the  damages  found  about 
$3,300.  The  question  la  raised  as  to  the  pro- 
priety of  filing  and  considering  such  affida- 
vits for  the  purpose  of  Impeaching  the  ver- 
dict, but,  as  It  Is  shown  that  substantially 
the  same  statement  was  made  by  the  Juror 
on  his  voir  dire  examination,  It  Is  not  deem- 
ed necessary  to  notice  the  matter  further  as 
the  defendant  could  not  be  heard  to  com- 
plain ;  there  being  no  showing  that  it  could 
not  have  excluded  him. 

Finding  no  prejudicial  error  In  the  record, 
the  Judgment  of  the  district  court  is  affirmed 

Affirmed. 


HOPB  T.  GRBAT  NORTHBRN  RT.  CO. 

(Supreme  Court  of  North  Dakota.    Oct  11, 
1909.) 

1.  Railroads  ({  827*}— Crossino  AociDEin>— 

CONTRIBtJTOBT    NEGLIGENCE. 

FlaintifTs  driver  drove  his  team  and  wagon 
to  town  with  a  load  of  wheat.  After  onloadine 
the  wheat  at  an  elevator  south  of  the  railroad 
track  and  east  of  the  highway  crossine  the  rail- 
road track,  he  drove  oat  of  the  east  side  of  the 
elevator,  swung  west  to  the  highway,  and  turn- 
■cd  north  to  the  crossing.  His  view  of  approach- 
;ng  trains  from  the  east  was  completely  ol}- 
structed  hy  freight  cars  standing  on  the  side 
tracks  and  the  three  elevators.  It  was  a  cold 
day.     He  was  dressed  quite  warmly,  and  had 


his  cap  pulled  down  about  the  edges  of  his 
ears.  He  had  a  lumber  wagon  with  a  double 
box,  and  was  driving  quite  rapidly.  The  ground 
was  frozen,  and  the  wagon  made  considerable 
noise.  When  he  was  about  30  feet  from  the 
main  track  he  jerked  op  his  team  so  as  not  to 
gallop  over  the  crossing.  Just  then  the  team 
gave  a  jnmp  and  struck  the  side  of  the  engine  of 
the  regular  passenger  train  coming  from  the  east 
Both  the  horses  were  injured  and  the  wagon 
badly  damaged.  The  driver  did  not  look  for  any 
train  coming  from  the  east  after  be  drove  out 
of  the  elevator,  neither  did  he  hear  any  train 
coming  or  make  any  effort  to  ascertain  if  there 
was  one.  Held  he  was  guilty  of  contributory 
negligence. 

[£jd.  Note. — For  other  cases,  see  Railroads, 
Cent  Dig.  t  1043 ;   Dec.  Dig.  S  327.*] 

2.  Railboads  (§  338*)— Cbobsinq  Accident- 
Last  Cleab  Chance. 

Held,  that  the  doctrine  of  the  last  clear 

chance,  to  prevent  an  accident.  Is  not  applicable 

under  the  evidence  in  this  case. 
[Ed.   Note.— For  other  cases,  see  Railroads, 

Cent  Dig.  §S  1096-1098 ;  Dec.  Dig.  |  838.*] 

(Syllabus  by  the  Court) 

Appeal  from  District  Court  Cavalier 
(bounty;  C.  3.  Flsk,  Judge. 

Action  by  H.  J.  Hope  against  the  Great 
Northern  Railway  CJompany.  Judgment  for 
defendant  and  plaintiff  appeals.     Affirmed. 

Dickson  &  Johnson,  for  appellant  O.  J. 
Murphy,  Fred  S.  Duggan,  and  Arthur  Le 
Sueur,  for  respondent 

CARMODY,  J.  The  plaintiff  sued  to  re- 
cover the  value  of  horses  and  a  wagon,  dam- 
aged In  a  collision  with  one  of  defendant's 
passenger  trains  at  the  city  of  Langdon,  N. 
D.,  on  the  5th  day  of  December,  1902.  The 
accident  occurred  at  the  crossing  of  the  rail- 
road tracks  and  Third  street  In  said  city, 
and  about  100  feet  west  of  the  passenger  de- 
pot Third  street  being  the  main  street  In 
the  city  of  Langdon,  runs  north  and  south, 
and  the  railroad  tracks  cross  it  running 
northwesterly  and  southeasterly.  The  main 
railroad  track  Is  the  most  northerly  of  three 
parallel  tracks.  South  of  it,  and  about  10 
feet  distant  Is  a  passing  track,  and  south  of 
this  passing  track  and  about  ^  feet  distant 
from  it  is  the  elevator  or  side  track.  The  de- 
pot is  located  on  the  north  side  of  the  mah:! 
track,  and  about  100  feet  east  from  Third 
street  crossing.  Three  grain  elevators  are 
on  the  south  side  of  the  tracks  and  east  of 
Third  street  On  the  day  of  the  accident 
both  the  passing  track  and  the  side  track 
were  well  filled  with  freight  cars  on  both 
sides  of  the  crossing.  The  cars  on  the  east 
side  of  the  crossing  came  up  to  about  25  or 
30  feet  of  the  crossing,  most  of  the  cars  be- 
ing on  the  passing  track.  There  was  also  a 
string  of  cars  on  the  side  track  along  the 
elevators,  and  cars  on  both  traclcs  west  of 
the  crossing,  leaving  a  passage  way  of  60 
feet  or  so.  Plaintiff's  man,  B.  Hope,  drove 
the  team  and  wagon  In  question  to  town  that 
day  with  a  load  of  wheat  and  had  to  cross 


•For  otber  cshs  sm  same  topic  and  section  NUMBER  In  Dsc.  *  Am.  Digs.  1907  to  date,  *  Keporter  Indexes 


Digitized  by  VjOOQ  l€ 


998 


122  NORTHWESTERN  BBPDRTEB. 


(N.a 


south  over  the  tracks  on  the  Third  street 
crossing  to  get  to  the  elevators.  After  wait- 
ing a  few  minutes  to  allow  a  freight  train  to 
move  east  hy  the  crossing,  he  crossed  to  the 
south  side,  and  took  his  load  of  grain  to  the 
most  easterly  elevator.  After  unloading  the 
grain  he  drove  eastward  out  of  the  elevator, 
then  turned  south  and  west  and  drove  back 
along  the  route  he  had  come  toward  the 
crossing  with  his  team  on  the  trot  or  gallop. 
The  weather  was  pretty  cold,  the  ground 
frozen  hard,  and  the  empty  wagon  with  a 
double  grain  box  made  a  great  deal  of  noise. 
As  he  drove  south  of  the  elevators  westward 
toward  the  crossing  they  obstructed  his  view 
of  the  tracks,  and  the  spaces'  between  the 
elevators  that  he  passed  were  blocked  by 
the  freight  cars,  and  by  this  freight  train, 
which  extended  from  the  crossing  some  dis- 
tance beyond  the  elevators,  occupying  the 
passing  or  center  track.  They  completely 
obstructed  Hope's  view  of  the  main  track, 
and  the  fireman's  view  of  the  highway.  Hope 
drove  down  from  the  elevator  platform  and 
around  back  to  the  crossing  over  the  first 
and  second  tracks,  and  into  the  side  of  the 
engine  of  the  incoming  passenger  train  on 
the  third  track,  and  from  the  time  he  left 
the  elevator  until  the  collision,  his  horses, 
then  under  control,  were  on  the  trot  or  gal- 
lop, and  did  not  stop,  except  momentarily  be- 
tween the  first  and  second  tracks,  where  the 
driver  pulled  them  In  because,  as  he  said,  he 
"did  not  want  to  gallop  over  the  tracks." 
John  Lee,  a  section  man,  was  shoveling 
snow  off  of  the  first  track  at  the  crossing 
when  the  horses  came  up  to  cross  It  He 
testified  he  endeavored  to  stop  the  rig  by 
waving  his  shovel  at  the  driver  and  calling 
to  him  at  the  top  of  his  voice.  The  driver 
saw  him,  but,  according  to  his  testimony,  he 
did  not  see  Lee  wave  his  shovel  or  hear  him 
call.  The  team  almost  came  to  a  stop  be- 
tween the  first  and  second  tracks,  and  seem- 
ed to  start  forward  again  on  the  Jump  and 
continue  until  they  struck  the  engine;  they 
struck  the  left  side  of  the  engine  and  were 
badly  injured;  the  driver  escaped  uninjured. 
The  train  which  struck  the  horses  was  the 
regular  daily  passenger  train  going  west;  it 
was  due  at  12:30  and  was  about  an  hour 
late.  The  driver  knew  the  time  of  the 
train's  arrival,  and  also  knew  that  some- 
times it  was  late.  According  to  the  testi- 
mony of  the  train  crew  and  other  employes 
of  defendant,  the  brakes  had  been  applied 
some  900  feet  east  of  the  crossing,  and  the 
engineer  blew  the  station  whistle  at  the 
usual  point,  but  did  not  see  the  horses  until 
after  the  accident  The  fireman,  according 
to  his  testimony,  was  In  his  window  ringing 
the  bcil  and  saw  the  horses  as  they  emerg- 
ed from  between  the  cars  on  the  passing 
track  not  more  than  30  feet  from  the  engine. 
He  saw  them  strike  the  engine  on  the  steam 
chest  on  the  left  side.  There  was  a  dent 
where  they  struck.     The  defendant's  wit- 


nesses, Adams,  Blssell,  Hill,  McNlell,  Carl- 
son, and  Gunderson,  testified  that  the  enghie 
whistle  was  blown  as  usual  for  the  station, 
and  the  fireman  was  ringing  the  bell  as  the 
train  came  in.  The  driver  and  two  other 
witnesses  for  plaintiff,  then  at  the  depot  did 
not  hear  those  signals,  but  would  not  testify 
they  were  not  g^lven. 

The  case  was  tried  by  Hon.  W.  J.  Knee- 
shaw,  presiding  Judge,  and  a  Jury.  The  de- 
fendant at  the  close  of  the  testimony  moved 
for  a  directed  verdict  In  Its  favor,  which  mo- 
tion was  denied.  The  case  was  submitted  to 
the  Jury,  who  found  a  verdict  for  plaintiff. 
Thereafter  the  defendant  moved  the  court 
for  Judgment  notwithstanding  the  verdict 
which  motion  was  granted  by  Hon.  C.  J. 
Flsk,  the  Judge  before  whom  It  was  heard. 
From  the  judgment  notwithstanding  the  ver- 
dict this  appeal  was  taken. 

The  point  for  consideration  is  whether, 
under  the  evidence,  plaintiff's  driver  was 
guilty  of  negligence  proximately  causing  the 
injury,  or  of  contributory  negligence  as  a 
matter  of  law.  We  think  the  order  of  tlie 
court,  granting  Judgment  for  defendant  not- 
withstanding the  verdict  was  right  It 
conclusively  appears  that  the  driver  was 
guilty  of  contributory  negligence.  He  drove 
south  over  the  crossing  in  question,  with  a 
load  of  wheat  about  10  minutes  before  the 
accident,  so  that  he  knew  the  situation 
there,  and  the  location  of  the  tracks.  Aft- 
er unloading  the  wheat  he  turned  around 
and  returned  to  the  crossing,  driving  paral- 
lel to  the  tracks  and  south  of  them,  not 
stopping  once  in  this  drive.  There  was  a 
string  of  box  cars  on  the  center  track  and 
other  cars  on  the  elevator  track,  and  three 
elevator  buildings,  all  of  which  shut  out  the 
view  of  the  main  track  from  him,  and  the 
view  of  the  driver  and  team  from  the  en- 
gineer and  fireman  of  the  passenger  train. 
The  driver  looked  east  as  he  was  going 
down  the  elevator  bridge  and  did  not  see 
any  train,  saw  the  cars  on  the  elevator 
track  and  passing  track.  It  was  quite  cold, 
and  he  was  dressed  warmly,  had  his  cap 
down  about  the  edge  of  his  ears.  The 
ground  was  frozen  and  the  double  box  on 
the  wagon  was  empty.  The  wagon  made  a 
noise  on  the  hard  road  so  that  he  did  not 
bear  the  train  or  any  noise  except  that 
made  by  the  wagon.  From  the  time  he  left 
the  east  elevator  until  the  collision  his  team 
did  not  stop,  except  that  after  he  crossed 
the  first  tmck,  he  pulled  up  the  lines  and  mo- 
mentarily stopped  them;  he  said  because  he 
"did  not  want  to  gallop  over  the  track."  He 
said:  "They  were  just  standing  still  for  a 
moment  that  was  Just  for  an  instant;  I 
Jerked  them  back,  and  they  stopped  like 
that  and  away  they  went  again.  I  was  be- 
tween the  box  cars  when  the  horses  Jump- 
ed; they  took  fright"  His  idea  in  pulling 
them  up  was  Just  so  they  would  not  go  fast 
over  the  track.  The  first  he  saw  of  the 
passenger  train  or  heard  of  it  was  when  he 


Digitized  by  VjOOQ  l€ 


N.  JD.) 


HOPE  T.  GREAT  NORTHERN  RT.  CO. 


999 


saw  tbe  train  and  horses  and  smoke  all  at 
once;  all  went  together.  According  to  the 
testimony  tbe  train  was  running  from  12 
to  20  miles  per  honr.  There  was  no  point 
after  he  left  the  elevator  at  which  It  was 
possible  for  him  to  see  the  main  track  or 
the  train  coming  on  it  from  the  east  Ac- 
cording to  his  own  testimony  he  paid  no  at- 
tention whatever  to  the  approach  of  the 
train  on  the  main  track.  At  no  time  did  he 
stop  his  horses  or  listen  for  tbe  train.  The 
noise  of  the  moving  train  conveyed  no  warn- 
ing to  him.  The  noise  of  his  wagon  on  the 
hard  frozen  ground  probably  prevented  him 
from  hearing  it.  It  is  conclusively  estab- 
lished by  the  driver's  own  testimony  that 
he  did  not  take  the  care  commensurate  with 
the  very  apparent  dangers  of  tills  crossing. 
A  person  is  bound  to  use  care  commensu- 
rate with  the  known  or  reasonably  appre- 
hended danger.  It  is  an  established  rule  of 
the  courts  that  a  traveler,  about  to  cross  a 
railroad  track,  must  bear  in  mind  the  dan- 
gers attendant  upon  crossing,  and  vigilantly 
use  his  senses  of  sight  and  hearing  in  tbe 
endeavor  to  avoid  injury.  He  is  required 
to  do  all  that  care  and  prudence  would  dic- 
tate to  avoid  injury.  "Those  who  attempt 
to  cross  a  railroad  track  at  a  public  high- 
way crossing  must  exercise  ordinary  care, 
in  view  of  all  tbe  surrounding  circumstan- 
ces, to  avoid  receiving  an  injury  by  collision 
with  trains.  But,  in  the  very  nature  of 
things,  the  standard  of  such  care  cannot  be 
absolutely  fixed,  •  •  •  and  the  general 
rule  is  that  a  person  about  to  cross  a  track 
must  bear  in  mind  the  dangers  attendant 
upon  crossing,  and  vigilantly  use  his  seifses 
of  sight  and  hearing  in  the  endeavor  to 
avoid  injury.  •  •  •  The  traveler,  how- 
ever, Is  rigidly  required  to  do  all  that  care 
and  prudence  wonld  dictate  to  avoid  injury; 
and  the  greater  the  danger,  the  greater  the 
care  that  must  lie  exercised  to  avoid  it. 
And  where,  because  of  physical  infirmities, 
darkness,  snow,  fog,  tbe  Inclemency  of  tbe 
weather,  buildings,  or  other  obstructions 
and  hindrances,  it  is  more  than  usually  diffi- 
cult to  see  or  hear,  greater  precaution  must 
be  taken  to  avoid  injury  than  would  other- 
wise be  necessary,  and,  under  such  circum- 
stances, there  can  be  no  excuse  for  tbe  fail- 
ure to  adopt  such  reasonable  precautions  as 
would  probably  have  prevented  the  injury." 
7  A.  &  E.  Eiic.  of  Law  (2d  Ed.)  428-435. 

The  driver  was  charged  with  knowledge 
that  this  was  a  dangerous  place,  being  a 
railroad  crossing,  and,  as  a  matter  of  law, 
it  cannot  be  assumed  that  cars  are  not  ap- 
proaching on  railroad  tracks,  and  there  is 
no  danger  therefrom.  He  was  bound  to  as- 
sume that  cars  were  coming  till  he  had  sat- 
isfied himself  by  direct  evidence  to  the  con- 
trary, and  to  use  care  commensurate  with 
this  state  of  facts.  Bond  v.  Lake  Shore 
Ry.  Co.,  117  Mich.  652,  76  N.  W.  102;  Elliot 
y.  Ky.  Co.,  150  V.  S.  245.  14  Sup.  Ct  85,  37 
U  Ed.  1068;  Chicago,  etc.,  Ry.  Co.  t.  Smith, 


141  Fed.  980,  7S  O.  O.  A.  164;  Day  T.  By. 
Co.,  96  Me.  207,  52  Atl.  771,  90  Am.  gt  Rep. 
335. 

In  the  aspect  of  the  evidence  most  fa- 
vorable to  platntier,  he  cannot  recover  in  this 
action.  The  driver's  course  of  conduct 
amounted  to  contributory  negligence  as  a 
matter  of  law.  Payne  v.  Ry.  Co.,  108  Iowa, 
188,  78  N.  W.  813;  Smith's  Adm'r  v.  Nor. 
folk,  etc.,  Ry.  Co.,  107  Va.  725,  60  S.  B. 
5ft;  Haas  v.  Ry.  Co.,  47  Mich.  401,  11  N. 
W.  216;  Bond  v.  By.  Co.,  117  Mich.  652,  78 
N.  W.  102;  Proper  v.  Ry.  Co.,  136  Mich.  352, 
99  N.  Wv  283;  Rogers  v.  By.  Co.,  187  Mass. 
217,  72  N.  E.  945;  Shatto  v.  Ry.  Co.,  121 
Fed.  678,  59  C.  O.  A.  1;  Ry.  Co.  v.  Houston, 
95  U.  S.  702,  24  L.  Ed.  542;  Hook  v.  Ry. 
Co.,  162  Mo.  569,  63  S.  W.  860;  Wands  v. 
Ry.  Co.,  106  Mo.  App.  96,  80  S.  W.  18;  Bums 
v.  Ry.  Co.,  136  Ala.  522,  33  South.  891; 
Fletcher  v.  Ry.  Co.,  140  Mass.  127,  21  N.  E. 
302,  3  L.  R.  A.  743;  Dobbins  v.  Ry.  Co.,  154 
Mass.  402,  28  N.  E.  274;  Marty  v.  Ry.  Co., 
38  Minn.  108,  35  N.  W.  670;  Sbufelt  v.  Ry. 
Co.,  96  Mich.  327,  65  N.  W.  1013;  Ihrig  v. 
Ry.  Co.,  210  Pa.  98,  59  Atl.  686;  Seefeld  v. 
Ry.  Co.,  70  Wis.  216,  35  N.  W.  278,  5  Am. 
St  Rep.  168;  Carter  v.  Ry.  Co.,  72  Vt.  190, 
47  Atl.  797;  State  v.  Ry.  Co.,  102  Md.  257, 
62  Atl.  754;  Railway  Oo.  v.  Holden,  93  Md. 
417,  49  Atl.  625;  Day  v.  Ry.  Co.,  96  Me.  207, 
52  Ati.  771,  90  Am.  St  Rep.  335;  Gulder  v. 
Ry.  Co.,  70  N.  J.  Law,  196,  56  AtL  124; 
Cleveland  Co.  v.  Heine,  28  Ind.  App.  163,  62 
N.  E.  455. 

In  Elliot  v.  Ry.  Co.,  supra,  the  court 
said:  "It  can  never  be  assumed  that  cars 
are  not  approaching  on  a  track  or  that  there 
is  no  danger  therefrom." 

In  Chicago,  etc.,  Ry.  Oo.  v.  Smith,  supra, 
the  court  said:  "The  law  requires  of  one 
going  into  so  dangerous  a  place  the  vigilant 
exercise  of  his  faculties  of  sight  and  hear- 
ing at  such  short  distance  therefrom  as  will 
be  efTectual  for  his  protection,  and  if  this 
duty  is  neglected,  and  injury  results,  there 
can  be  no  recovery,  although  the  injury 
would  not  have  occurred  but  for  the  negli- 
gence of  others." 

In  Shatto  v.  Ry.  Co.,  supra,  the  court  said: 
"Plaintlll  approached  a  railroad  crossing  in 
a  city,  with  which  he  was  familiar,  at  about 
4:30  in  tbe  afternoon.  The  wind  was  blow- 
ing strongly  from  the  south,  and  his  view 
of  approaching  trains  from  the  north  was 
obstructed  by  a  freight  train  standing  on 
tbe  switch  track  nearest  him,  and  by  high 
board  fences,  dwelling  houses,  piles  of  lum- 
ber, etc.  Plaintiff  had  his  ears  covered, 
nnd,  as  he  approached  the  crossing,  looked 
and  listened,  and,  hearing  no  train,  con- 
tinued driving  his  horse  at  a  trot  until  with- 
in 100  feet  of  the  track,  when  the  horse  be- 
gan prancing  or  single-footing.  Plaintiff 
drove  t)etween  the  cars  of  the  freight  train, 
which  had  been  cut  at  the  crossing,  and, 
when  bis  horse  got  his  bead  beyond  the 
cars,  he  swerved  and  Jumped  to  the  left. 


Digitized  by 


Google 


1000 


122  NORTHWESTERN  REPORTER. 


Or.D. 


when  plaintiff  was  struck  by  a  train  ap- 
proaching from  the  north  on  the  main  track. 
Held,  that  plaintiff's  failure  to  8t<H>  before 
driving  on  the  track,  under  such  clrcnm- 
stancefi,  -was  contributory  negligence  as  a 
matter  of  law." 

In  Smith's  Adm'r  v.  Norfolk,  etc.,  Ry.  Co., 
supra,  the  court  said:  "A  traveler  on  a  high- 
way must,  before  crossing  a  railroad,  use 
his  sensea  of  sight  and  hearing,  and  his 
failure  to  do  so  Is,  as  a  general  rule,  negli- 
gence; and,  since  the  track  la  a  proclama- 
tion of  danger  to  him,  he  must  make  the 
acts  of  looking  and  listening  reasonably  ef- 
fective." 

In  the  light  of  the  principles  settled  by 
the  decisions  herein  cited  we  are  of  opinion 
that  plaintifTs  driver  was  negligent  in  bis 
approach  to  the  crossing  In  question,  so  neg- 
ligent and  lacking  in  care  as  to  preclude 
plaintiff's  right  to  recover.  But  one  other 
question  remains.  The  plaintiff  contends 
that  defendant  Is  responsible,  in  any  event, 
under  the  facts  in  this  case  because  it  had 
the  last  clear  chance  to  prevent  the  collision, 
or  at  any  rate  the  Jury  had  a  right  to  draw 
that  conclusion  from  the  testimony  of  the 
section  man,  Lee.  Plaintiff  claims  that 
Lee  could  have  drawn  the  attention  of  the 
driver  to  his  danger  and  averted  the  colli- 
sion. We  cannot  sustain  this  contention. 
The  undisputed  evidence  shows  that  Lee 
was  on  the  south  track.  When  he  first  saw 
Hope  he  was  30  or  40  feet  south  of  the 
main  track  driving  his  horses  at  a  slow 
trot,  and  then  they  sprung  and  Jumped 
right  into  the  engine.  After  Lee  saw  the 
team  it  was  clearly  impossible  for  defend- 
ant to  avoid  the  injury.  It  had  no  chance 
whatever  to  stop  its  train  after  discovering 
the  team.  The  order  granting  the  motion 
for  Judgment  notwithstanding  the  verdict 
was  clearly  right  and  the  Judgment  is  af- 
firmed. 
All  concur,  except  FISK,  X,  disqualified. 


SCHERJIR  ▼.   SCHLABERG   et  al. 

(Supreme  Court  of  North  Dakota.     Sept.  30, 
1909.) 

1.  Death  (S  95*)— Death  of  Child— Measubb 
OF  Damages. 

In  an  action  by  a  father  for  the  death  of  a 
minor  child  by  wrongful  act  of  defendant,  the 
measure  of  damaees  recoverable  by  the  father 
is  the  probable  value  of  the  services  of  the  child 
daring  minority  to  the  father,  considering  the 
cost  of  support  and  maintenance  during  the 
early  and  helpless  part  of  its  life. 

fEM.  Note. — For  other  cases,  see  Death,  CenL 
Dig.  }S  108,  109,  115;  Dec.  Dig.  f  95.*] 

2.  Death  (J  79*)— Death  of  Child— Dahaoes 
—CoRjECTUBB— Nominal  Damages. 

In  an  action  by  a  father  for  damages  for 
the  wrongful  death  of  a  daughter  three  months 
old,  who  is  dangerously  ill  with  uremia  when 


the  wron^l  act  complained  of  was  committed, 
the  question  of  the  pecuniary  injury  of  the  fa- 
ther by  the  death  of  such  child,  if  caused  by 
the  wrongful  act  of  defendants,  is  purely  a  mat- 
ter of  speculation,  conjecture,  and  guesswork, 
and  any  verdict  for  more  than  nominal  damages 
in  favor  of  the  father  would  necessarily  be  based 
upon  conjecture  or  speculation, 

[Ed.  Note.— For  other  cases,  see  Death,  Cent 
Dig.  f  97 ;   Dec.  Dig.  i  79.*] 

3.  Death  (|  76*)— Cause  of  Death— Suffi- 
ciESCT  OF  Evidence. 

The  child,  damages  for  whose  death  by 
wrongful  act  of  defendants  are  sought  in  this 
action  by  the  father,  was  a  girl  three  months 
old,  dangerously  ill  with  uremia.  A  physician 
was  called,  and  left^witb  the  parAits  a  prescrip- 
tion on  defendant's  drug  store  for  medicine. 
By  mistake  of  the  defendant  druggists  medicine 
was  given  plaintiff  containing  one-eighth  of  a 
grain  of  morphine  in  each  dose  directed  to  be 
given.  The  infant  afterward  died.  Held,  on- 
der  the  evidence,  that  the  jury,  had  the  case 
been  submitted  to  it  for  a  verdict,  could  only 
have  found  a  verdict  for  plaintiff  based  upon 
pure  speculation  and  surmise  as  to  the  cause  of 
the  child's  death. 

[Ed.  Note.— For  other  cases,  see  Deatli.  Cent 
Dig.  S  94;  Dec  Dig.  S  76.*] 

4.  Trial  (J  139*)— Dibection  of  Veruict  fob 
Defendant. 

When  the  nature  of  the  evidence,  in  an  ac- 
tion for  damages,  is  such  that  no  verdict  for 
the  plaintiff  can  be  returned  except  based  upon 
mere  conjecture,  surmise,  or  speculation,  it  is 
proper  for  the  trial  court  to  direct  a  verdict  for 
the  defendant. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  {  338 ;  Dec.  Dig.  {  139.*] 

5.  Death   (|  24*)— Defenses— Gohtkibutobt 
Neolioence  of  Plaintiff  Beneficiabt. 

In  an  action  under  the  statute  providing 
for  the  recovery  of  damages  for  death  by  wrong- 
ful act  of  the  defendant,  the  contributory  neg- 
ligence of  the  plaintiff  beneficiary  is  a  defense. 

[Ed.  Note.— For  other  caaes,  see  Death,  Cent 
Dig.  If  25,  26;    Dec.  Dig.  f  24.*] 

6.  Death   (i  24*)— Defenses— Contbibutobt 

NKOLIOENCB  of  PI.AINTIFF  BENEFICIABT. 

The  prescription  of  an  attending  physician 
called  for  medicine  in  the  form  of  a  powder, 
to  be  given,  one  every  three  hours,  to  an  infant 
three  months  old.  The  prescription  was  left 
with  the  mother  of  the  child,  and  she  was  in- 
formed by  the  physician  that  it. would  be  in  pow- 
der form,  and  to  give  a  dose  once  in  three  hours. 
By  mistake  of  the  defendant  druggist  medicine, 

f)ut  up  for  another  customer,  in  liquid  form,  the 
abel  on  the  bottle  being  marked  with  the  name 
of  the  party  for  whom  it  was  prescribed,  and 
containing  directions  to  give  one  teaspoonfui 
every  two  hours  until  relieved,  waa  delivered. 
The  plaintifl  father  was  not  present  when  the 
information  and  the  directions  were  given  the 
mother  by  the  doctor,  but  before  any  of  the 
medicine  was  given  was  informed  by  the  mother 
what  the  directions  were.  He  also  read  the  di- 
rections on  the  bottle,  and  knew  that  the  pre- 
scription given  had  been  for  a  powder.  He  was 
present  when  the  liquid  was  aoministered  to  the 
child,  and  permitted  it  to  be  done.  After  the 
first  dose  was  given,  and  when  nearly  time  for 
the  second  dose  to  be  administered,  he  suspected 
something  wrong  in  the  medicine,  and  telephoned 
the  doctor  from  the  residence  of  a  neighbor. 
He  left  his  home  to  telephone  without  imparting 
his  suspicions  to  his  wife,  or  directing  her  to  de- 
lay the  second  dose  until  he  had  heard  from  the 
doctor,  and  the  second  dose  was  given  before  his 
return.    Held,  that  under  these  facts,  and  others 


•For  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Dig*.  IMR  to  date,  *  Rqwrtar  Indexes 


Digitized  by 


Google 


N.D.) 


8CHERER  T.  SCHLABERG. 


1001 


dixclosed  by  the  record,  the  plaintiff  was  guilty 
of  contributory  negligence  in  law. 

[Ed.  Note.— For  other  cases,  see  Death,  Cent. 
Dig.  H  25,  26;   Dec.  Dig.  {  24.*] 

Ellsworth,  X,  dissenting. 
(Syllabus  by  the  Court.) 

Appeal  from  District  Conrt,  Grand  Forks 
County;  Tempi eton.  Judge. 

Action  by  Jacob  Scherer,  as  administrator 
of  the  estate  of  Frances  Scherer,  against 
Frank  Scblaberg  and  Frank  L.  Griffin,  co- 
partners as  Schlaberg  &  Grlffln.  Judgment 
for  defendants,  and  plalntlfF  appeals.  Af- 
firmed. 

Skulason  &  Burtneas,  for  appellant.  Bangs, 
Cooley  &  Hamilton,  for  respondents. 

SPALDING,  J.  The  plaintifT,  Jacob  Scber- 
er,  and  his  wife,  Anna  Scherer,  were  on 
March  20. 1906,  the  parents  of  a  female  child 
named  Frances  one  day  less  than  three 
months  old.  As  far  as  shown  by  the  evi- 
dence the  child  was  healthful  up  to  the  time 
of  tbe  illness  hereinafter  described.  On  Sun- 
day, March  18,  1906,  this  daughter  became 
unwell.  Tuesday  morning,  the  20th,  Dr. 
Taylor  was  called,  and  gave  directions  for 
the  treatment  of  the  child.  He  called  again 
in  the  afternoon,  and  gave  Mrs.  Scherer  a 
prescription  on  the  drug  store  of  the  defend- 
ants. The  doctor  told  the  mother  to  send  the 
prescription  to  the  drug  store,  and  that  the 
medicine  it  called  for  would  be  in  the  form 
of  powders,  and  to  give  one  powder  to  the 
child  every  three  hours.  The  husband  was 
not  present  when  these  directions  were  given. 
The  prescription  was  sent  to  the  drug  store 
about  5  o'clock  by  Stella  Brady,  who  gave  it 
to  one  of  the  druggists  in  the  store,  and  re- 
ceived In  return  a  claim  Check.  She  left 
the  drug  store,  and  on  her  return  in  a  short 
time  the  same  person  to  whom  she  gave  the 
prescription  delivered  to  her  the  medicine. 
She  carried  it  to  the  plaintiff's  residence, 
and  was  directed  by  the  mother  to  place  It 
on  a  writing  desk,  which  she  did.  It  was 
allowed  to  remain  there  until  the  return  of 
the  father  about  6:30  p.  m.,  when  be  and  the 
mother  examined  it,  and  commented  on  its 
being  in  a  bottle  and  a  liquid,  instead  of  in 
powders,  as  the  doctor  had  stated  it  would 
be.  The  mother  told  the  plaintifT  that  the 
doctor  said  it  would  be  In  powders,  and  his 
directions.  She  could  not  read  English.  The 
plalntift  could.  He  read  the  label  on  the  bot- 
tle and  the  directions.  The  name  of  some 
person  was  written  on  the  labeL  He  testifies 
that  he  could  read  the  name  "Rose,"  but 
that  the  other  name  was  blurred,  and  could 
not  be  read;  that  he  thought  that  was  the 
name  of  the  medicine.  In  fact  the  name 
"Rose'Clark"  was  distinctly  written  on  the 
label  before  the  directions.  The  directions 
which  he  read  were  to  give  one  teaspoonful 
every  two  hours  until  relieved.    The  liquid 


In  the  bottle  contained  two  grains  of  mor- 
phine, or  about  one-eighth  of  a  grain  to  a 
teaspoonful.  After  discussing  the  difference 
between  the  medicine  received  and  tb^  state- 
ment of  the  doctor,  plaintiff  and  wife,  not- 
withstanding the  lack  of  opportunity  for  the 
doctor  to  change  the  prescription,  concluded 
that  the  doctor  had  changed  bis  mind  and 
put  up  a  liquid.  The  father  did  not  admin- 
ister the  medicine,  but  was  present  when  the 
mother,  with  the  assistance  of  another  lady, 
did  administer  It.  On  attempting  to  give  it 
undiluted,  the  child  appeared  to  dislike  it 
and  suffer  from  the  contact  of  the  medicine 
with  her  mouth;  and,  although  the  direc- 
tions said  nothing  about  diluting,  the  mother 
reduced  It  with  water  and  administered  about 
a  teasi^oonful.  Fifteen  or  20  minutes  after 
it  was  given  the  child  appeared  to  suffer, 
and,  without  entering  into  details  of  the  testi- 
mony of  the  different  witnesses,  it  suffices  to 
say  that  the  child  was  evidently  In  distress. 
The  father  waited  until  a  few  minutes  be- 
fore time  for  the  second  dose,  when,  suspect- 
ing that  the  changed  condition  of  the  child 
for  the  worse  was  caused  by  a  mistake  in 
the  medicine,  he  went  to  a  neighbor's  about 
two  blocks  away  and  telephoned  the  doctor. 
He  left  without  indicating  to  the  mother  his 
suspicion  regarding  the  medicine,  or  caution- 
ing her  about  giving  another  dose  before 
be  had  conununicated  with  the  doctor.  The 
doctor  informed  blm  that  it  was  the  wrong 
medicine.  He  returned  in  haste  to  his  home 
and  found  that  the  second  dose  had  just 
been  given.  The  doctor  arrived  shortly,  ex- 
amined the  child,  and  found  a  slight  dilation 
of  the  pupils  of  the  eyes.  He  testifies  to  no 
other  symptom  of  morphine  poisoning.  The 
testimony  of  the  different  physicians  indi- 
cates that  if  the  digestive  organs  were  in 
normal  condition,  the  morphine  would  have 
been  absorbed  into  the  system  In  a  few  min- 
utes, but  that  when  the  digestive  system  is 
out  of  order  morphine  may  remain  a  consid- 
erable time  in  the  stomach.  The  doctor 
washed  out  the  stomach  with  permanganate 
of  potash,  for  the  purpose  of  relieving  It 
from  any  morphine  which  It  retained.  He 
testifies  that  the  effect  of  a  solution  of  per- 
manganate of  potash  used  In  this  manner  is 
to  decompose  and  render  morphine  inert  and 
absolutely  harmless.  He  also  gave  the  child 
a  hypodermic  of  atropine  to  counteract  the 
effect  of  any  morphine  which  might  have  been 
absorbed.  This  was  done  about  9  o'clock  in 
the  evening.  He  remained  with  the  child 
until  about  1  o'clock  In  the  morning,  and  tes- 
tifies that  he  made  use  of  tests  to  determine 
whether  there  were  any  remaining  effects 
of  the  morphine  present,  and  that  it  is  his 
positive  judgment  that  when  he  left  the  child 
was  free  from  any  lU  effect  which  she  might 
have  had  from  the  morphine.  She  was  lying 
perfectly  still  when  he  left,  but  the  parents 
testified  that  she  subsequently  had  several 


•For  otber  eases  lea  same  topic  and  section  NIJMBSR  In  Dec.  &  Am.  Digs.  1907  to  date,  &  Reporter  lodexes 


Digitized  by 


Google 


1002 


122  NORTHWESTERN  REPORTER. 


(N.n. 


convulsioiiH.  The  doctor  called  again  the 
next  forenoon,  and  found  It  still  a  very 
sick  child,  and  It  died  about  noon  Wednesday. 
This  action  was  brought  under  the  prorislons 
•of  the  statute  giving  the  father  the  right  to 
maintain  an  action  for  death  of  his  child  by 
wrongful  act,  and  it  is  for  his  benefit,  he 
being  the  sole  heir  at  law. 

At  the  close  of  the  case  the  defendants 
moved  for  the  direction  of  a  verdict  in  their 
favor  on  the  following  grounds:  (1)  That  the 
evidence  falls  to  show  that  the  Infant  Fran- 
ces Scherer  died  from  the  effects  of  adminis- 
tering the  liquid  called  for  by  the  prescrip- 
tion Exhibit  C;  (2)  that  the  evidence  fails 
to  show  that  the  defendants,  or  their  agents, 
were  guilty  of  any  act  which,  or  the  result 
of  which,  was  the  proximate  cause  of  the 
death  of  the  Infant,  Frances  Scherer;  (3) 
that  there  is  no  evidence  in  the  ease  upon 
which  the  Jury  can  base  a  deliberate  judgment 
that  the  death  of  the  infant,  Frances  Scherer, 
was  caused  by  the  administering  of  the  liq- 
uid called  for  by  Exhibit  O;  that  such  ver- 
dict, if  rendered,  would  be  necessarily  based 
on  mere  surmise,  conjecture,  and  speculation ; 
(4)  that  the  evidence  fails  to  show  any 
facts  from  which,  or  upon  which,  the  Jury 
can  base  any  damages;  (5)  that  there  is  no 
evidence  in  this  case  which  can  be  used  by 
the  jury  as  a  measure  of  pecuniary  aid  which 
the  father  might  reasonably  expect  from  the 
Infant,  Frances  Scherer,  had  she  lived ;  that 
damages,  if  awarded,  could  not  be  the  re- 
sult of  Judicial  determination  upon  the  evi- 
dence, but  would  be  the  result  of  the  un- 
controlled discretion  of  the  Jury;  (6)  that 
the  evidence  discloses  that  Anna  Scherer, 
the  mother  of  the  infant,  Frances  Scherer, 
was,  in  exercising  the  care  and  custody  of 
said  Frances  Scherer,  acting  as  the  author- 
ized agent  of  said  father,  Jacob  Scherer; 
that  the  negligence  of  either  the  father,  Ja- 
cob Scherer,  or  the  mother,  Anna  Scherer, 
in  exercising  such  care  and  custody  con- 
tributing to  the  death  of  such  infant,  would 
bar  a  recovery,  and  that  the  evidence  disclos- 
es affirmatively  such  negligence  on  the  part 
of  both  Jacob  Scherer  and  Anna  Scherer  con- 
tributing to  the  death  of  said  Infant,  if 
such  death  was  caused  by  the  administer- 
ing of  the  liquid  claimed,  as  in  law  consti- 
tutes contributory  negligence  and  bars  a  re- 
covery; (7)  that  the  evidence  falls  to  show 
facts  sufficient  to  constitute  a  cause  of  ac- 
tion against  the  defendants.  The  motion 
was  granted,  and  the  plaintiff  duly  excepted. 
From  the  judgment  entered  dismissing  the 
action,  and  for  costs  against  the  plaintiff, 
this  appeal  is  prosecuted.  We  have  not 
stated  the  substance  of  all  the  evidence, 
and  we  cannot  do  so  and  confine  this  opin- 
ion within  proper  limits.  It  will  simplify  the 
intelligent  consideration  of  the  case  to  con- 
sider some  of  the  reasons  given  by  the  re- 
spondent for  sustaining  the  Judgment,  rather 
than  to  pursue  the  usual  course  of  discussing 
the  errors  assigned  by  appellant,  as  appel- 


lant's assignments  of  error  are  In  general 
terms. 

1.  It  is  contended  that  there  is  no  evidence 
which  could  have  been  considered  by  the 
Jury  to  furnish  a  measure  of  pecuniary  In- 
Jury  which  the  lather  suffered  from  the 
death  of  the  child.  The  rule  regarding  the 
measure  of  damages  recoverable  by  the  father 
for  the  death  by  wrongful  act  of  a  minor 
child  seems  to  be  the  probable  value  of  the 
services  of  the  child  during  minority,  con> 
siderlng  the  cost  of  support  and  maintenance 
during  the  early  and  helpless  part  of  its 
life.  Hang  v.  Railway  Company,  8  N.  D.  23. 
77  N.  W.  97,  42  L.  R.  A.  664,  73  Am.  St  Rep. 
727;  Morgan  v.  S.  P.  Company,  95  Cal.  510, 
SO  Pac.  603,  17  L.  R.  A.  71,  29  Am.  St.  Rep. 
143;  Little  R.  &  F.  S.  Ry.  Co.  v.  Barker,  33 
Ark.  350,  34  Am.  Rep.  44;  Smith  v.  C,  M.  & 
St  P.  Ry.  Co.,  6  S.  D.  683,  62  N.  W.  967,  28 
L.  R.  A.  573;  Sutherland  on  Damages,  f  1273. 
No  evidence  is  presented  in  the  record  show- 
ing the  age  of  the  father  or  the  expectancy 
of  his  life.  This  has  been  held  to  be  fatal 
to  recovery  by  the  plaintiff;  but,  as  we  view 
the  law,  it  is  an  Immaterial  omission  In  this 
Instance.  It  was  a  female  child  only  three 
months  old.  Dr.  Taylor  testified  that  It  was 
dangerously  ill  when  he  called  to  see  it, 
suffering  from  uremic  poisoning.  It  Is  ob- 
vious that,  with  a  female  child  three  months 
old,  dangerously  ill,  the  pecuniary  value  of 
its  life  during  its  minority  Is  wholly  prob- 
lematical and  speculative.  It  is  conceded 
that  In  actions  of  this  nature  Juries  are  not 
confined  to  the  consideration  of  the  evidence 
alone,  as  they  are  in  many  other  kinds  of 
actions,  but  they  may  exercise  a  much  wider 
latitude  in  applying  their  own  knowledge 
and  experience  than  would  be  proper  in  most 
other  cases,  but  It  Is  apparent  that  no  evi- 
dence, no  knowledge,  or  experience  of  the 
Jurors  could  justify  them  in  saying  that 
this  child  would  have  lived  had  no  mistake 
been  made  In  the  prescription,  or  that  In 
case  of  its  continued  life  its  earning  capacity 
would  have  exceeded  the  expenditures  neces- 
sary in  its  maintenance  and  education.  On 
the  contrary,  the  experience  of  mankind  in 
civilized  communities  warrants  the  conclu- 
sion that  its  net  earning  capacity  would  most 
likely  be  a  negative  quantity.  When  it  is 
impossible  to  arrive  at  a  verdict  except  by 
speculation  or  surmise,  guesswork,  or  con- 
jecture, the  case  should  be  taken  from  the 
Jury.  Koslowskl  v.  Thayer,  66  Minn.  150, 
68  N.  W.  973;  Moore  v..Gt  N.  Ry.  Co.,  67 
Minn.  394,  69  N.  W.  1103;  Peterson  v.  C, 
M.  &  St  P.  Ry.  Co.,  19  S.  D.  122,  102  N.  W. 
595;  Truax  v.  M.,  St  P.  &  S.  M.  Ry.  Co.,  89 
Minn.  143,  94  N.  W.  440;  Harrison  v.  C.,  M. 
&  St  P.  Ry.  Co.,  6  S.  D.  100,  60  N.  W.  405; 
Sherman  v.  Lumber  Co.,  77  Wis.  22,  45  N. 
W.  1079;  Wheelan  v.  C,  M.  &  St  P.  Ry.  Co., 
85  Iowa,  107,  52  N.  W.  119;  Balding  v.  An- 
drews, 12  N.  D.  267,  96  N.  W.  305;  Meeban 
V.  G.  N.  Ry.  Co.,  13  N.  D.  432,  101  N.  W.  183; 
Wadsworth  v.  Boston  El.  Ry.  Co.,  182  Mass. 


Digitized  by  LjOOQ  l€ 


W.D.) 


6CHEREB  T.  8CHLABERQ. 


1003 


572,  «I9  N.  B.  421;  Baltimore  &  O.  B.  Co.  t. 
State,  101  Md.  359,  61  Atl.  189,  192:  Standard 
OU  Ck>.  T.  Murray,  119  Fed.  572,  576,  57  C.  C. 
A.  1;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Aderbold, 
58  Kan.  293,  49  Fac.  83;  Ruppert  ▼.  Brook- 
lyn Heights  R.  Co.,  154  N.  Y.  90,  47  N.  E. 
971;  Laldlaw  v.  Sage,  158  N.  Y.  73,  52  N.  B. 
679, 689,  44  L.  R.  A.  216;  Byrd  v.  So.  Bx.  Co., 
139  N.  C.  273,  51  8.  E.  851;  Stumpf  v.  Dela- 
ware, L.  &  W.  R.  Co.  (N.  J.  Sup.)  69  Atl. 
207.  Most  of  the  American  courts  sustain 
the  doctrine  of  nominal  damages,  although 
this  doctrine  is  denied  by  the  English  au- 
thorities. We  shall  not  determine  which  line 
of  authorities  Is  applicable  in  this  state  nor 
whether  nominal  damages  would  be  proper 
In  a  case  of  this  character,  or  similar  cases. 
2.  It  is  next  contended  that  the  judgment 
should  be  sustained  because  any  verdict 
rendered  for  plaintiff  on  the  evidence  as  to 
the  cause  of  the  death  of  the  child  must  have 
been  purely  speculatiye  and  conjectural".  Dr. 
Taylor  testifies  that  the  child  was  dangerous- 
ly ill  with  uremic  poisoning.  It  Is  shown 
that  it  passed  no  urine  for  24  hours,  that  Its 
bowels  did  not  act,  and,  without  detailing  the 
symptoms  testified  to  both  by  the  parents 
and  others,  as  well  as  the  doctor,  that,  with 
the  exception  of  the  slight  contraction  of  the 
pupil,  they  indicated  uremic  poisoning,  and 
not  poison  from  morphine.  The  testimony  of 
the  physidans  is  In  the  main  uniform  on  this 
question,  and  as  to  the  cause  of  the  death, 
although  Dr.  Engstad,  a  witness  for  the 
plaintiff,  testified  when  first  on  the  stand  that 
he  did  not  think  the  child  would  die  from 
one  dose  of  the  morphine  solution;  that  it 
would  depend  upon  the  measures  taken  to 
counteract  the  poison,  and  it  would  be  very 
hard  to  say  whether  it  would  die  from  the 
administration  of  two  doses,  and  that  it  was 
a  question  very  dtflJcult  to  answer;  that  he 
could  not  give  a  direct  answer.  And  in  an- 
swer to  a  hypothetical  question,  which  did 
not  state  all  the  material  facts  and  circum- 
stances as  testified  to  by  Dr.  Taylor  showing 
the  condition  of  the  child,  he  stated  that  the 
giving  of  morphine  to  the  child  "had  at 
least  a  predisposing  cause,  if  not  a  direct 
cause."  He  explained  what  he  meant  by 
"predisposing  cause"  by  an  illustration  that, 
when  a  person  accustomed  to  partake  heavily 
of  whisky  contracted  pneumonia,  he  would, 
in  all  probability,  die;  that  the  direct  cause 
of  his  death  would  be  pneumonia,  but  that 
the  predisposing  cause  would  be  whisky.  .  He 
also  testified  that  there  were  cases  where 
he  knew  morphine  had  been  retained  in  the 
stomach  for  two  or  three  hours,  or  more, 
without  being  absorbed  to  any  great  extent, 
and  that  he  had  had  cases,  when  morphine 
used  to  be  given  by  the  mouth,  in  which  he 
did  not  get  action  from  the  morphine  for 
an  hour  or  tw'o.  Drs.  Grassick,  Healy,  and 
Wheeler  corroborated  Dr.  Taylor  in  his  state- 
ment that  the  child  died  of  uremic  poisoning.. 
We  are  of  the  opinion,  after  considering  all 
tbe  evidence  submitted,  that  the  trial  court 


was  Justified  in  taking  the  case  from  the 
jury.  The  answer  of  Dr.  Engstad,  based 
upon  the  hypothetical  question  which  failed 
to  state  the  most  marked  symptoms  of  the 
child  as  testified  to  by  Dr.  Taylor,  at  most 
constituted  but  a  scintilla  of  evidence  in  con- 
flict with  that  given  by  the  other  physicians, 
and  any  verdict  rendered  for  the  plaintiff 
would  have  been  based  upon  pure  conjecture 
and  guesswork.  No  Jury  could  say  what 
caused  the  child's  death.  As  to  this  tbe  au- 
thorities  previously  cited   are   applicable. 

3.  It  is  urged  in  support  of  the  judgment 
of  the  trial  court  that  the  father  was  guilty 
of  contributory  negligence,  and  that  for  this 
reason  he  was  not  entitled  to  recover.  It  is 
perfectly  clear  that,  notwithstanding  the  in- 
excusable mistake  or  negligence  of  the  de- 
fendant, no  injury  would  have  resulted  ex- 
cept for  the  carelessness,  or  lack  of  care, 
of  the  parents  In  administering  medicine 
which  they  knew  differed  in  character,  in 
dose,  and  in  the  frequency  of  the  dose  from 
that  prescribed  by  the  physician  in  attend- 
ance. The  doctor  plainly  told  the  mother 
that  the  prescription  would  be  in  the  form 
of  a  powder,  to  be  given  once  in  three  hours. 
The  child  was  dangerously  sick.  She  did 
not  send  to  the  drug  store  for  some  time  aft- 
er the  doctor  left  A  liquid  was  returned, 
the  bottle  inscribed  with  the  name  of  the 
party  for  whom  it  was  put  up.  The  direc- 
tions materially  differed  from  those  given 
by  Dr.  Taylor.  All  this  was  known  by  the 
father  who,  while  not  assisting  in  adminis- 
tering it,  was  present  when  the  first  dose 
was  given,  and  did  nothing  to  prevent  its 
administration.  After  the  change  In  the  con- 
dition of  the  child,  he  suspected  something 
wrong  with  the  medicine,  and,  within  a  few 
minutes  of  the  time  for  the  second  dose,  left 
his  home  without  suggesting  that  another 
dose  should  not  be  given  until  he  consulted 
with  the  doctor.  He  was  absent  a  consider- 
able length  of  time,  and  on  return  found 
that  the  second  dose  had  been  given.  It  is 
argued,  however,  that  they  discussed  the 
change  in  the  medicine,  and  concluded  that 
the  doctor  had  changed  his  mind  and  put  up 
a  different  remedy.  It  is  apparent  that  this 
conclusion  is  a  mere  afterthought,  and  could 
have  had  no  foundation,  because  the  doc- 
tor was  not  seen  in  the  meantime.  The  pre- 
scription was  left  with  the  mother.  The 
person  who  took  it  to  the  drug  store  deliver^ 
ed  it  to  the  druggist,  not  to  the  doctor.  How 
it  was  possible  for  the  doctor  to  have  made 
the  change  is  not  suggested.  A  telephone 
was  within  such  distance  that  they  «ould 
have  informed  themselves  as  to  the  cause 
of  the  change  of  medicine  without  delay  or 
difficulty.  They  neglected  to  do  so.  The 
fact  that  it  was  an  infant  three  months  old, 
very  sick,  and,  as  they  must  have  known, 
by  reason"  of  its  age  and  other  conditions, 
susceptible  to  very  small  quantities  of  any 
medicine,  charged  them  with  a  high  degree 
of  care.    Had  It  been  a  grown  person  who 


Digitized  by  LjOOQ  l€ 


1004 


122  NORTHWESTERN  REPORTER. 


(N.D. 


was  Ul,  their  duties  would  have  been  differ- 
ent. A  dose  for  one  grown  person  would 
ordinarily  approximate  a  dose  for  another 
grown  person,  but  not  so  as  to  a  grown  per- 
son and  an  Infant  three  months  old,  as  they 
must  have  known.  Whatever  the  results 
may  have  been  from  the  administration  of 
the  morphine  solution,  it  is  clear  to  us  that, 
notwithstanding  the  gross  negligence  of  the 
defendants,  no  ill  results  could  have  occur- 
red except  for  the  negligence  of  the  father 
in  permitting  the  administration,  not  only  of 
the  first,  but  also  of  the  second  dose,  and 
that  his  negligence  was  the  proximate  cause 
of  any  Injury  to  the  child  resulting  from  the 
action  of  the  defendants,  if  any  Injury  did 
result,  and  that  therefore  he  cannot  recover. 
4.  It  is  urged  by  appellant  In  this  connec- 
tion that  negligence  of  the  father  or  mother 
is  imputed  negligence,  and  that  to  sustain 
the  judgment  on  the  ground  of  contributory 
negligence  this  court  must  adopt  the  doc- 
trine of  Imputed  negligence;  that  is,  that  if 
the  father  was  negligent,  his  negligence 
must  be  imputed  to  the  child,  on  the  theory 
that  contributory  negligence  of  the  child 
must  be  shown  to  support  the  defense  of 
contributory  negligence  against  the  father, 
and  that  if  the  contributory  negligence  of 
the  father  would  be  a  defense,  the  contribu- 
tory negligence  in  this  case  was  that  of  the 
mother,  and  can  be  imputed  neither  to  the 
father  nor  to  the  deceased.  As  we  view  the 
law  and  the  facts,  the  question  of  Imputed 
negligence  is  not  in  this  case  in  any  degree 
whatever.  The  father  knew  all  the  facts, 
and  was  present  when  the  medicine  was 
given,  and  acquiesced  in  its  being  admin- 
ister^ and  the  negligence  was  his.  He  1st 
the  beneficiary,  and  the  contributory  negli- 
gence of  the  beneficiary  defeats  the  action. 
The  remedy  applicable  in  this  case,  and  in 
cases  of  this  nature,  is  not  for  the  benefit  of 
the  estate  of  the  deceased,  nor  is  it  sought 
Ul  behalf  of  the  deceased.  It  is  a  remedy 
given  for  the  heir  at  law  who  suffers  injury 
by  the  wrongful  death,  and  is  for  the  sole 
benefit  of  such  heir  at  law.  Proceeds  of  any 
recovery  go  to  him.  In  this  case  the  father, 
and  not  to  the  estate  of  the  deceased.  And 
to  say  that  he  shall  be  allowed  to  recover, 
when  he  himself  is  guilty  of  contributory 
negligence,  is  to  i>ermit  him  to  rep.p  the 
benefit  of  his  own  wrongdoing.  Atlantic  Ry. 
Co.  V.  Gravltt,  93  Ga.  369,  20  S.  E.  550,  26 
L.  R.  A.  553,  44  Am.  St.  Rep.  145;  Tucker  v. 
Draper,  62  Neb.  66,  86  N.  W.  917,  54  L.  R. 
A.  321;  Westerberg  v.  K.  0.,  etc.,  Ry.  Co., 
142  Pa.  471,  21  Ati.  878,  24  Am.  St.  Rep.  510; 
Westbrook  Mobile  &  O.  R.  Co.,  66  Miss.  560, 
6  South.  321,  14  Am.  St  Rep.  587;  Ploof  ▼. 
Burlington  Traction  Co.,  70  Vt  509,  41  Atl. 
1017,  43  L.  R.  A.  108;  Bamberger  v.  Citizens' 
St  Ry.  Co.,  95  Tenn.  18,  81  S.  W.  163,  28 
L.  R.  A.  486,  49  Am.  St  Rep.  909  >  Smith  r. 
Hestonvllle,  M.  &  T.  Co.,  92  Pa.  450,  37  Am. 
Rep.  707;  Johnson  v.  Reading  &.  C.  Ry.  Co., 
160  Pa.  647,  28  AtL  1001,  40  Am.  St  Rep. 


752;  City  of  Pekln  v.  McMahon,  154  III.  141. 
39  N.  E.  484,  27  I/.  R.  A.  206,  45  Am.  St  Rep. 
114;  W.  U.  TeL  Co.  v.  Hoffman,  80  Tex.  420, 
15  S.  W.  1048,  26  Am.  St  Rep.  759.  In  the 
Gravltt  and  Ploof  Gases,  supra,  wHl  be  found 
very  foil  citations  of  authorities  and  discus- 
sions of  the  law  applicable  to  the  case  at  bar. 

The  circumstances  surrounding  this  case 
at  the  same  time  excite  the  profound  sym- 
pathy of  the  court  for  the  father  and  mother. 
and  a  feeling  that  snch  gross  carelessness 
as  that  of  defendants,  though  harmless  in 
its  results,  ought  to  be  followed  by  appro- 
priate punishment,  but  the  decisions  of 
courts  would  justly  cease  to  deserve  the 
respect  which  is  accorded  them  if  they  per- 
mitted their  sympathies  or  their  indignation 
to  serve  as  a  guiding  motive  in  the  deter- 
mination of  questions  of  law. 

As  we  find  no  error  in  the  action  of  the 
trial  court.  Its  order  Is  aflSrmed. 

FISK,  J.,  disqualified,  and  C.  A.  POL- 
LOCK, Judge  of  the  Third  Judicial  District. 
sat  in  his  stead.  CARMODY,  J.,  and  POL.- 
tiOCK,  District  Judge,  concur.  MORGAN.  C. 
J.,  concurs  in  the  result,  without  considering 
the  question  of  damages. 

ELLSWORTH,  J.  (dissenting).  I  am  un- 
able to  concur  in  the  result  announced  by 
my  Associates  Ui  this  case,  or  in  their  rea- 
soning upon  any  of  the  points  passed  upon 
by  the  majority  opinion. 

The  principles  accepted  by  this  court  as 
governing  the  disposal  upon  appeal  of  cases 
tried  to  a  jury  in  which  a  verdict  has  been 
directed  by  the  court  are  so  strongly  estab- 
lished and  well  recognized  that  they  cannot 
now  be  the  subject  of  dispute  or  difference 
of  opinion.  When  a  trial  court,  at  the  close 
of  the  entire  testimony  in  an  action  tried 
before  It,  holds  as  a  matter  of  law  that  one 
party  or  the  other  is  entitled  to  a  verdict, 
and  directs  the  jury  sitting  In  the  case  to 
find  accordingly,  and  an  appeal  Is  taken 
from  the  judgment  entered  upon  the  direct- 
ed verdict,  observance  of  these  principles 
requires  this  court  to  disregard  all  conflicts 
in  the  evidence,  and  in  Its  consideration  of 
the  case  to  construe  the  evidence  most  strong- 
ly against  the  party  moving  for  the  directed 
verdict  If  it  appears  from  the  evidence  so 
considered  that  the  &icts  shown  are  such 
that  different  impartial  minds  might  fairly 
draw  different  conclusions  therefrom,  it  fol- 
lows that  the  Issues  of  fact  should  have  been 
submitted  to  the  jury — the  body  of  men  pro- 
vided by  the  Constitution  and  laws  for  the 
determination  of  disputed  or  doubtful  ques- 
tions of  fact  "The  rule  Is  the  same  where 
the  evidence  is  undisputed,  if  different  infer- 
ences therefrom  may  be  fairly  deduced  by 
intelligent  minds."  It  is  only  irh&a  it  can 
be  said  that  all  reasonable  and  fair-minded 
men  must,  with  the  same  facts  before  them 
draw  but  one  conclusion  from  the  evidence, 
that  a  trial  court  Is  warranted  in  any  man- 
ner, or  to  any  extent  whatever,  in  controlling 


Digitized  by 


L-oogle 


M.JD.) 


BOHERER  T.  SCHLABERG. 


1005 


or  directing  the  verdict  of  the  Jury.  If, 
therefore,  In  the  consideration  of  an  appeal 
from  a  Judgment  entered  on  a  directed  ver- 
dict. It  appears  that  "the  evidence  is  snch 
that  Intelligent  men  may  fairly  dlfTer  in 
their  conclusions  thereon  upon  any  of  the 
essential  facts  of  the  case,  it  is  the  duty 
of  this  court  to  reverse  the  Judgment  and 
order  a  new  trial."  Cameron  v.  Gt.  Nor.  Ry. 
Co.,  8  N.  D.  124,  T7  N.  W.  1016;  Vlckery 
V.  Burton,  6  N.  D.  245,  69  N.  W.  193;  Mc- 
Bea  V.  Bank,  6  N.  D.  353,  70  N.  W.  81S; 
PIrle  V.  Glllltt,  2  N.  D.  255,  50  N.  W.  710; 
Zlnk  V.  Lahart,  16  N.  D.  56,  110  N.  W.  981; 
Hall  V.  N.  P.  Ry.  Co..  16  N.  D.  60,  111  N. 
W.  609;  Carr  v.  Soo  By.  Co.,  16  N.  D.  217, 
112  N.  W.  972. 

The  facts  admitted  by  the  defendants  in 
this  case  disclose  a  gross  and  entirely  Inex- 
cusable act  of  negligence  on  their  part  They 
were  druggists,  engaged  In  the  business  of 
compounding  the  medicines  prescribed  by 
physicians,  and  furnishing  the  same  to  pa- 
tients the  safety  of  whose  health  and  lives 
are  dependent  upon  the  skill  and  care  ot 
those  who  undertake  the  performance  of  this 
highly  important,  delicate,  and  often  danger- 
ous duty.  While  so  acting,  they  received  a 
physician's  prescription  which  upon  Its  face 
indicated  that  the  medicine  prescribed  was 
to  be  compounded  for  the  use  of  an  infant 
or  "baby,"  and,  after  taking  time  sufficient 
to  enable  them  to  prepare  the  same  with 
the  greatest  deliberation  and  care,  delivered 
to  the  person  sent  to  receive  the  medicine 
an  entirely  different  compound,  containing 
strong  and  poisonous  ingredients  that  might 
be  safely  used  only  by  a  grown  person.  So 
little  attention  seems  to  have  been  given  to 
the  prescription  for  the  infant's  use  that  it 
was  not  known  by  the  defendants  that  a 
mistake  had  been  made,  and  that  a  medi- 
cine so  dangerous  to  the  life  of  the  infant 
had  been  sent  to  it  until  two  or  three  hours 
afterward,  when  the  medicine  In  consider- 
able quantity  had  been  administered  to  the 
child  and  the  bottle  containing  It  returned 
to  them  by  its  father.  While  It  is  tme  that 
a  court,  In  the  consideration  of  facts  such 
as  these,  should  not  permit  emotional  senti- 
ments such  as  sympathy  or  indignation  to 
disturb  its  Judgment,  or  cause  it  to  disre- 
gard well-established  principles  of  procedure, 
it  is  nevertheless  its  duty  to  search  the  facts 
with  the  greatest  care  to  determine  wheth- 
er the  harmful  effect  that  naturally  proceeds 
from  negligence  so  culpable  as  this  has  not 
in  fact  resulted,  and,  if  the  evidence  shows 
such  to  be  the  case,  to  hold  the  negligent 
party  to  strict  liability  to  the  extent  of  the 
damage   suffered. 

The  negligent  act  of  the  defendants  is  ad- 
mitted, the  death  of  the  child  following 
shortly  thereafter  is  proved,  and  if  there  is 
evidence  showing,  or  tending  to  show,  that 
the  death  of  the  child  resulted  as  a  proxi- 
mate cause  of  the  negligent  act,  a  case  Is 
made  out  entitling  the  plaintiff  and  appel- 


lant in  this  case  to  damages  under  the  stat- 
ute providing  for  an  action  against  the  par- 
ty responsible  for  a  death  by  wrongful  act. 
As  conceded  and  shown  by  the  authorities 
cited  in  the  majority  opinion,  the  American 
courts,  practically  without  exception,  sustain 
the  doctrine  that  upon  proof  of  the  negligent 
act  of  the  defendant  resulting  in  the  death 
of  a  person,  and  of  the  existence  of  a  party 
entitled  to  recover  under  the  provisions  of 
the  statute,  a  presumption  at  once  arises 
that  the  party  entitled  to  recover  has  sus- 
taiped  at  least  nominal  damage.  The  opin- 
ion farther  concedes  that  in  actions  of  this 
character,  in  determining  the  amount  of 
damage  sustained,  Juries  are  not  confined  to 
a  consideration  of  the  evidence  alone  as  in 
other  classes  of  actions,  but  may  exercise  a 
much  wider  latitude  in  applying  their  own 
knowledge  and  experience  to  the  facts  of 
the  case  than  would  be  proper  in  most  other 
cases.  Tbese  points  admitted.  It  seems  to 
me  that  it  necessarily  follows,  unless  It  can 
be  said  that  there  is  no  comx)etent  evidence 
to  show  that  the  death  of  the  child  resulted 
from  the  act  of  the  defendants,  that  the 
plaintiff  in  this  action  has  sustained  at  least 
nominal  damage.  If  the  plaintiff  was  en- 
titled to  even  nominal  damage,  the  district 
court  was  clearly  in  error  in  directing  a  ver- 
dict for  the  defendants.  I  entirely  fail  to 
understand  how  such  error  is  obviated  by 
the  consideration  that  "it  is  obvious  that 
with  a  female  child  three  months  old,  dan- 
gerously iU,  the  pecuniary  value  of  Its  life 
during  its  minority  is  wholly  problematical 
and  speculative."  It  is  doubtless  true  that, 
after  death,  the  pecuniary  value  of  the  life 
of  any  person  within  his  minority,  or  in 
fact  during  any  period  of  vital  exi>ectancy. 
Is  problematical  in  the  sense  that  It  can  be 
determined  only  upon  considerations  that 
may  be,  from  the  ordinary  legal  standpoint, 
regarded  as  conjectural  and  speculative.  It 
Is  also  true  that  to  strictly  apply  a  rule  of 
evidence  requiring  such  pecuniary  value  to 
be  shown  with  the  exactness  of  mathematical 
calculation  will  entirely  frustrate  the  pur- 
pose of  the  statute  providing  for  an  action 
tor  death  by  wrongful  act,  and  prevent  a 
recovery  in  any  case  whatever. 

The  statute  under  which  this  action  Is 
brought  provides  for  an  action  In  favor  of 
the  proper  parties  whenever  the  death  of  a 
"person"  shall  be  caused  by  the  wrongful 
act  of  another.  Section  7686,  Bev.  Codes 
1905.  This  statute  was  enacted  with  an  ap- 
parent legislative  intent  to  provide  a  new 
right  of  action  for  the  redress  of  wrongs 
that  by  common  law  were  without  remedy. 
Being  thus  remedial  In  character,  the  statute 
should  be  liberally  construed  by  the  courts 
in  a  spirit  that  wlU,  so  far  as  lies  within  its 
terms,  effectuate  the  remedy  designed  by  the 
Legislature.  A  construction  that  will  bring 
the  statute  Into  practical  operation  for  the 
purpose  for  which  it  was  obviously  designed 
should  be  preferred  to  one  that  will  render 


Digitized  by  VjOOQ  l€ 


1006 


122  NORTHWESTERN  REPORTER. 


(N.D. 


it  nngatory  and  InoperatlTe  In  any  Important 
particular.  Under  such  construction  an  In- 
fant or  child  of  immature  and  tender  years  Is 
as  truly  a  "person"  within  the  meaning  of 
the  statute  as  an  adult  The  pecuniary  dam- 
age resulting  from  the  death  of  such  an  in- 
fant may  not  be  so  large  In  amount  as  If  it 
were  a  person  of  mature  years,  baring  com- 
plex family  relations;  yet,  according  to  all 
human  experience,  such  dami^ge  Is  substan- 
tial, and  should  be  determined  by  the  same 
rules  applied  in  an  action  for  the  death  of 
an  older  person.  There  is  an  eTident  legisla- 
tive purpose  apparent  in  every  part  of  the 
statute  that  In  every  case  of  death  by  wrong- 
ful act,  whatever  the  age  or  capacity  of 
the  decedent,  a  Jury  shall  examine  into  the 
facts  and  circumstances,  and  award  "dam- 
ages proportionate  to  the  injury"  to  the 
party  entitled  to  recover.  In  the  light  of 
these  principle,  and  of  those  conceded  by  the 
majority  opinion,  it  is  dlflScult  to  compre- 
hend how  the  fact  that  the  child  was  but 
three  months  old  and  dangerously  111  render- 
ed the  pecuniary  value  of  its  life  during  its 
minority  more  problematical  and  speculative 
than  that  of  the  almost  innumerable  cases 
in  which  recoveries  have  been  sustained,  un- 
der similar  statutes,  in  the  American  courts. 
Conceding  that  the  pecuniary  value  of  the 
life  of  a  child  three  months  old  is  at  least 
nominal,  and  probably  substantial,  on  what 
reasonable  principle  can  it  be  held  that  the 
fact  it  was  suffering  from  a  dangerous  dis- 
ease renders  a  finding  In  support  of  plalntlfTs 
contention  as  to  the  cause  of  death  "pure 
conjecture  and  guesswork"?  It  is  admitted 
by  the  physician  attending  the  child  that, 
after  the  administration  of  the  medicine  con- 
taining morphine,  the  child  exhibited  symp- 
toms of  poisoning  so  unmistakable  that  he  con- 
sidered it  necessary,  as  an  Important  part  of 
bis  professional  duty  in  the  treatment  of  the 
case,  to  at  once  take  vigorous  measures  to 
counteract  these  poisonous  effects,  and  that 
his  attention  for  a  period  of  about  four  hours 
was  devoted  exclusively  to  that  purpose. 
This  treatment  required  the  introduction  of 
a  rubber  tube  Into  the  child's  stomach, 
through  which  was  poured  a  solution  of  per- 
manganate of  potash,  and  the  injection  into 
its  veins  of  atropine,  both  chemicals  sufiS- 
oiently  powerful  to  decompose  morphine  and 
render  it  inert,  together  with  manipulation  of 
the  body  and  lungs  for  the  purpose  of 
strengthening  respiration  and  heart  action. 
He  claims  by  this  course  of  treatment  to  have 
been  entirely  successful  in  counteracting  the 
effect  of  the  poison;  but  it  is  freely  admit- 
ted by  the  medical  testimony  that  such  a 
course  of  treatment,  while  perhaps  effectual 
in  producing  an  evacuation  of  poison  from 
the  system,  would  have  been  extremely  ex- 
hausting and  debilitating  even  to  a  mature 
person.  One  physician  testified  that  be  had 
known  two  cases  in  which  an  attempt  to 
wash  out  the  stomach  of  an  adult  by  means 
of  a  tube  had  produced  convulsions  in  the 


patient  And  It  la  apparent  at  a  glance  that 
the  combined  effect  of  the  poison  and  the 
treatment  necessary  to  the  antidote  must 
have  seriously  depleted  the  small  reserve  of 
strength  of  this  young  child,  and  reduced  to 
a  low  ebb  its  vitality.  With  these  facts  be- 
fore it  a  Jury,  without  conjecture,  specula- 
tion, or  guesswork,  might  readily  find  that 
the  administration  of  the  morphine,  together 
with  the  treatment  necessary  to  counteract 
Its  effects,  was  largely  instrumental  in  pro- 
ducing the  death  of  the  child.  I  believe  that 
few  persons  can  follow  the  entire  evidence  of 
this  case  and  not  feel  strongly  impressed  with 
such  conclusion. 

Whether  the  poison  operated  directly  in 
producing  the  child's  death,  or  acted  as  a 
predisposing  cause  by  weakening  Its  consti- 
tutional powers  of  resistance  to  disease,  as 
testified  by  Dr.  Engstad,  the  defendants  are 
alike  responsible.  The  fact  that  disease  was 
also  operating  at  the  time  of  tl^e  adminis- 
tration of  the  poison,  and  that  that  disease 
of  itself  might  have  been  fatal,  does  not 
raise  a  presumption  that  it  did  in  fact  pro- 
duce the  child's  death.  Death  may  be  the 
result  of  several  concurring  causes,  any  one 
of  which,  operating  alone,  might  not  have 
fatal  result  If  the  poisoning  contributed  to 
produce  the  child's  death  by  so  Impairing  its 
strength  and  vital  forces  as  to  render  the 
disease  Incurable,  when  without  the  poison- 
ing it  might  have  yielded  to  treatment  the 
defendants  are  liable  to  exactly  the  same 
extent  as  though  It  had  been  the  only  cause. 
A  Jury  in  an  action  of  this  character  cannot 
apportion  the  damage  allowed,  according  to 
the  Injury  produced  by  each  of  two  or  more 
concurring  causes.  The  point  for  the  Jury 
is.  Did  the  negligent  act  of  defendants  op- 
erate as  one  cause,  and  did  its  effects  om- 
tribute  to  produce  the  death  of  the  child? 
If  it  did,  the  defendants  will  not  be  relieved 
of  responsibility  by  showing  that  other  caus- 
es operated  at  the  same  time  to  the  same  re- 
sult Louisville  &  O.  R.  R.  Co.  V.  Jones,  83 
Ala.  876,  3  South.  902;  Thompson  T.  Louis- 
ville &  N.  R.  Co.,  91  Ala.  496,  «  South.  406, 
11  L.  R.  A.  146;  Jucker  y.  Chicago  &  Rail- 
way Co.,  52  Wis.  160,  8  N.  W.  862;  People 
V.  Cook,  39  Mich.  236,  33  Am.  Rep.  380; 
Beauchamp  v.  Saginaw  Min.  Co.,  60  Mich. 
163,  15  N.  W.  66,  45  Am.  Rep.  30;  LouisvUle, 
etc..  Railway  Co.  v.  Snider,  117  Ind.  435,  20 
N.  E.  284,  3  L.  R.  A.  434,  10  Am.  St  Rep.  60. 

The  majority  opinion  holds  that  from  the 
evidence  introduced,  "no  jury  could  say  what 
caused  the  child's  death."  This  being  true, 
it  necessarily  follows  that  neither  the  Jury 
by  its  verdict  nor  the  court  as  a  matter  of 
law,  could  say  that  the  child's  death  was 
caused  by  uremia,  "the  dangerous  disease" 
whose  presence  so  complicated  the  situation. 
As  death  nnquestionably  resulted,  it  follows 
that  the  only  conclusion  possible  from  the 
evidence  is  that  it  was  produced  by  a  com- 
plexity of  causes,  prominent  among  which 
are  the  administration  of  the  poisonous  dms 


Digitized  by  VjOOQ  IC 


N.D.) 


SCHERER  V.  SCHLABERG. 


1007 


and  the  ^chaustion  attendant  upon  the  treat- 
ment necessary  to  counteract  Its  effect.  How 
such  conclusion  could  entitle  the  defendants 
to  a  directed  verdict  I  am  wholly  at  a  loss 
to  nnderstand.  It  the  child  had  been  m 
health  at  the  time  the  morphine  was  admin- 
istered, there  could  be  no  reasonable  question 
but  that  its  subsequent  death  was  caused  by 
poisoning.  The  fact,  however,  that  it  was  at 
this  time  suffering  with  a  dangerous  disease, 
according  to  the  holding  of  the  majority  opin- 
ion, at  once  removes  the  question  of  the  cause 
of  death  Into  a  region  of  speculation,  sur- 
mise, and  conjecture,  and  renders  It  im- 
possible for  a  Jury  to  render  any  verdict  oth- 
er than  one  In  favor  of  the  defendants.  If 
such  holding  is  to  be  regarded  as  a  settled 
practice  of  this  court,  It  becomes  a  serious 
question  whether  there  can  be  said  to  be  any 
•liability  on  the  part  of  a  druggist  who  negli- 
gently compounds  and  delivers  a  poison  to 
one  already  suffering  from  a  dangerous  dis- 
easa 

Such  holding  is,  however,  as  I  regard  it, 
more  reasonable  and  consistent  with  prin- 
ciple than  that  which  declares  that  plalnttfTs 
cause  of  action  is  defeated  by  contributory 
negligence  on  the  part  of  the  father.  By 
the  terms  of  the  statute  this  action  cannot 
be  maintained  by  the  father  of  the  child  In 
his  own  right,  but  only  as  personal  repre- 
sentative of  the  child.  The  widow  or  chil- 
dren of  a  decedent  may  sue  in  their  own 
names,  respectively,  but  the  father  is  without 
standing  except  as  the  personal  representa- 
tive. The  cause  of  action  falls  within  the 
Jurisdiction  of  the  county  court  as  a  portion 
of  the  assets  of  the  estate  of  a  deceased  per- 
son. The  father  brings  this  action  as  the 
agent  or  instrument  of  the  county  court,  and 
any  recovery  had  will  reach  his  hands  as 
administrator,  and  must  be  strictly  accounted 
for  to  that  court.  The  county  court  will  then 
proceed  with  its  administration  of  the  child's 
estate,  and  determine  to  what  person,  or  per- 
sons, the  assets  of  the  estate  are  to  be  dis- 
tributed. It  is  true  that  the  law  of  succes- 
sion of  this  state  provides  that  the  father  of 
an  unmarried  child  who  dies  without  issue 
Is  its  heir,  or,  in  case  of  his  death,  the  moth- 
er. It  Is  apparent  that  a  very  considerable 
Interval  of  time  must  elapse,  and  many  un- 
certain events  transpire,  between  the  time 
of  any  recovery  in  this  action  and  the  de- 
termination of  the  county  court  as  to  who 
are  the  child's  heirs  at  law,  and  the  distri- 
bution to  them,  subject  to  the  expenses  of 
administration  of  the  assets  of  the  estate; 
and  it  seems  to  me  that  it  is  only  by  an 
amount  of  speculation,  surmise,  conjecture, 
and  guesswork,  very  much  greater  than  that 
necessary  to  determine  the  cause  of  the 
child's  death  In  this  case,  that  a  court  can 
say  that  the  father  of  the  child  will  then  be 
living,  and  that  there  will  be  remaining,  of 
that  particular  asset  of  the  child's  estate 
realized  from  a  recovery  in  this  action,  a 
portion  80  considerable  as  to  confer  any  pe- 


cuniary benefit  on  him.  Whatever  recovery 
is  had  comes  to  the  father  In  his  represen- 
tative capacity  only.  In  the  right  of  the 
child,  on  the  theory  that  It  is  such  a  cause 
of  action  as  the  child  might  have  maintained 
if  living.  And  I  can  conceive  of  no  reason- 
able theory,  except  the  obsolete  and  now 
generally  discredited  one  of  Imputed  negli- 
gence, under  which  contributory  negligence 
of  the  father  can  be  said  to  be  a  defense  in 
an  action  of  this  character  brought  by  him 
as  personal  representative  of  the  child.  This 
view  is  supported  by  very  respectable  au- 
thority. Wymore  v.  Mahaska  County,  78 
Iowa,  396,  43  N.  W.  264,  6  L.  R.  A.  545,  16 
Am.  St  Rep.  449;  Norfolk  &  W.  B.  R.  Co. 
V.  Groseclose's  Adm'rs,  88  Va.  267,  13  S.  E. 
454,  29  Am.  St  Rep.  718. 

But  the  acceptance  by  this  court  of  the 
doctrine  that  contributory  negligence  of  a 
father  is  a  defense  to  an  action  brought  by 
him  as  a  personal  representative,  for  the 
death  by  wrongful  act  of  a  child,  is.  In  my 
opinion,  very  far  from  warranting  the  fur- 
ther holding  of  the  majority  opinion  that 
the  father,  Jacob  Scherer,  was,  as  a  matter 
of  law,  guilty  of  contributory  negligence  in 
this  case.  There  are  facts  bearing  upon 
this  question,  which  might  have  been  given 
controlling  Importance  by  a  Jury,  which  are 
entirely  disregarded  by  the  majority  opin- 
ion; and,  among  these  facts,  I  will  ask  at- 
tention to  the  following:  Both  the  plaintiff, 
Scherer,  and  his  wife  were  uneducated  and 
unfamiliar  with  the  English  language,  and 
especially  with  English  writing.  Mrs.  Schler- 
er  could  not  read  writing  at  all,  and  Scherer 
only  imperfectly.  An  older  child  of  theirs 
had  been  sick  for  a  period  of  almost  two 
months  before  this  time.  During  its  sickness 
Scherer  had  gone  to  defendants'  drug  store 
to  procure  medicines  prescribed  by  the  at- 
tending physician,  and  some  of  these  he  had 
received  in  bottles  In  liquid  form.  This 
older  child  had  died  on  the  morning  of  the 
day  on  which  the  morphine  was  adminis- 
tered to  the  Infant  Its  body  was  in  the 
house  at  the  time,  and  Scherer  had  been  busy 
'throughout  the  day  with  the  funeral  arrange- 
ments. Both  he  and  his  wife  were  in  an 
excited  and  nervous  condition.  Scherer  was 
not  present  at  the  time  the  prescription  for 
the  baby  was  received  from  Doctor  Taylor 
and  sent  to  the  drug  store.  He  came  in  after 
the  bottle  of  medicine  had  been  brought,  and 
conversed  with  his  wife  somewhat  regarding 
it  Mrs.  Scherer  told  him  that  the  doctor 
liad  said  that  the  medicine  would  l>e  a  pow- 
der. Scherer  examined  the  bottle,  and  was 
able  to  make  out  the  name  of  Doctor  Taylor 
on  the  label  and  a  direction  to  give  the 
medicine  every  two  hours.  The  name  "Rose 
Clark,"  also  appearing  on  the  label,  he  states, 
was  a  little  blurred  on  the  second  word,  and, 
owing  to  his  inexperience  ^ith  English  writ- 
ing, he  could  make  out  only  the  word  "Rose," 
which  he  supposed  was  part  of  the  name  of 
the  medicine.     Before  giving  the  medicine 


Digitized  by  VjOOQ  l€ 


1008 


122  NORTHWESTERN  REPORTER. 


(N.O. 


to  the  child,  the  fact  Oat  it  was  a  llqald  In- 
stead of  a  powder  was  discussed  somewhat 
between  him  and  his  wife,  and  they  came 
to  the  condusion  that  the  doctor  had  changed 
bis  mind  with  reference  to  the  Ingredients 
after  leaving  their  home,  and  that  the  liquid 
had  been  sent  as  the  result  of  a  subsequent 
direction  given  by  him  at  the  drug  store. 
The  fact  that  Doctor  Taylor's  name  appeared 
on  the  label  was  taken  by  them  as  a  guar- 
anty that  it  was  the  right  medicine.  After 
the  first  dose  of  medicine  had  been  given, 
and  the  child  showed  no  signs  of  improve- 
ment, but  seemed  to  grow  worse,  Scherer 
went  to  the  bouse  of  a  neighbor  for  the  pur- 
pose of  calliDg  Dr.  Taylor  by  telephone. 

In  determining  whether  or  not  the  negli- 
gence of  Scherer  contributed  to  the  death  of 
the  child,  not  only  should  all  testimony  that 
conflicts  with  the  evidence  of  Scherer  and 
his  witnesses  be  disregarded,  and  all  infer- 
ences taken  most  strongly  in  his  favor,  but 
whatever  seems  hasty  or  ill-considered  in  his 
acts  should  receive  a  certain  mitigation  from 
the  influence  of  surrounding  circumstances, 
.such  as  the  excited  mental  condition  of  Scher- 
er over  the  death  of  his  other  child,  the 
many  other  serious  matters  with  which  his 
mind  was  occupied  at  the  same  time,  the 
anxiety  to  do  without  delay  whatever  would 
relieve  the  sickness  of  the  baby,  and  the  Im- 
plicit faith  that  unlettered  people  place  in  the 
prescription  and  advice  of  a  physician  at- 
tending their  children.  Under  the  circum- 
stances of  this  case  to  measure  the  conduct 
of  Scherer  by  rules  even  more  inflexible  than 
would  be  applied  to  that  of  a  well-educated 
man,  in  the  full  possession  of  all  his  faculties 
of  mind,  experienced  in  the  reading  of  writ- 
ings and  In  the  treatment  of  sickness,  is  ob- 
viously unjust  There  is  nothing  in  his  con- 
duct that  does  not  seem  to  have  been  prompt- 
ed by  regard  for  the  welfare  of  the  child, 
and,  under  the  trying  conditions,  an  error 
of  Judgment  should  not  be  treated  as  a  cul- 
pable lack  of  care.  To  hold  that  his  acts 
constitute  contributory  negligence  as  a  mat- 
ter of  law  Is,  in  my  opinion,  to  disregard  or 
misapply  every  precept  adopted  by  this  court 
to  govern  its  action  in  such  cases. 

In  my  view  of  this  case  there  are  disputed 
questions  of  fact,  both  upon  the  point  of  the 
cause  of  the  death  of  the  child  and  the  con- 
tributory negligence  of  the  father,  which  the 
trial  court  should  have  submitted  to  the  Jury 
for  determination.  Even  though  the  rule 
requiring  that  the  evidence  be  given  a  con- 
struction most  favorable  to  the  party  ruled 
against  were  reversed,  I  believe  the  evidence 
on  these  points  still  presents  facts  from 
which  different  impartial  minds  might  fairly 
draw  different  conclusions.  To  hold  that  all 
reasonable .  and  fair-minded  men,  with  the 
facts  of  this  case  before  them,  can  draw 
therefrom  but  one  conclusion  almost  reaches 
absurdity,  in  view  of  the  fact  that  the  Judg 


es  of  this  court,  after  a  long  and  careful 
consideration  of  the  evidence,  are  divided 
in  their  opinion. 


ejOLI  T.  HOOENSON  et  al. 

(Supreme  Court  of  North  Dakota,     July  1, 

1909.     On  Petition  for  Rehearing 

Oct  21,  1909.) 

1.  exectttobs  and  aouinistbators  (s  315*)— 
Decrek'of  Distribution— Action  on  Bond. 

The  suit  is  brought  to  recover  a  balance 
claimed  to  be  due  plaintiff  as  heir  at  law  of  said 
C.  Gunderson,  deceased,  decreed  to  her  by  a 
final  decree  of  distribution  made  bv  said  county 
court  Held,  that  a  final  decree  of  distribution, 
entered  by  county  courts  in  this  state  distribut- 
ing the  estate  of  a  deceased  person  to  the  heirs 
at  law,  is  of  equal  rank  with  judgments  entered 
by  courts  of  record  in  this  state,  and  that  a  dis- 
tributee named  In  said  final  decree  of  distribu- 
tion can  maintain  an  action  against  the  execu- 
tor or  administrator,  or  the  bondsmen  of  the 
executor  or  administrator,  or  both,  for  the  share 
assigned  to  said  distributee  by  the  said  final  de- 
cree of  distribution. 

[Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Cent  Dig.  Si  1298-1314; 
Dec.  Dig.  i  315.*] 

2.  EJSGCUTOBS  AND  Adxinistkatobs  ({  535*) — 
DlSTBIBUnON  Deobee. 

Such  final  decree  of  distribution  is  conclu- 
sive as  against  the  Ixindsmen,  as  well  as  the 
administrator,  and  imports  the  same  degree  of 
verity  as  judgments  entered  by  courts  of  record 
in  this  state. 

[Ed.  Note.— For  other  cases,  see  Executora 
and  Administrators,  Gent  Dig.  Si  2462-2475; 
Dec.  Dig.  I  535.*] 

3.  Payment  (J  74*)—Receipt— Impeachment. 

A  receipt  obtained  from  a  distributee 
through  fraud  and  misrepresentation  is  invalid, 
and  open  to  explanation  and  impeachment. 

[Bid.  Note. — For  other  cases,  see  Payment, 
Cent  Dig.  fl  226-231 ;   Dec  Dig.  i  74.*] 

4.  Payment  (8|  9,  73*)- What  CoNSTrruTEs— 
Pbomisboby  Note. 

A  payment  means  a  payment  in  money.  If 
paid  by  promissory  note,  or  anything  else  than 
cash,  it  must  l>e  accepted  b^  the  payee  as  pay- 
ment Held,  nnder  the  evidence  in  this  case, 
that  the  so-called  promissory  note,  given  by  the 
administrator  to'  plaintiffs  husband,  did  not 
constitute  a  payment 

[EJd.  Note, — For  other  cases,  see  Payment 
Cent  Dig.  S  88;   Dec.  Dig.  SS  9,  73.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  6,  pp.  6247-5253;   vol.  8,  p.  7749.] 

(Syllabus  by  the  Court) 

6.  exectjtobs  and  adminibtrat0b8  (i  315*)— 

"Deobee  of  Distbibution." 

A  "decree  of  distribution"  is  an  instrument 
by  virtue  of  which  heirs  receive  the  property  of 
the  deceased.  It  is  the  final  determination  of 
the  rights  of  the  parties  to  a  proceeding,  and, 
upon  Its  entry,  their  rights  are  thereafter  to  be 
exercised  by  the  terms  of  the  decree. 

[Ed.  Note. — For  other  cases,  see  Executors 
and  Administrators,  Dec.  Dig.  |  315.*] 

Appeal  from  District  Court,  Walsh  Coun- 
ty;   W.  J.  Kneeshaw,  Judge. 

Action  by  Olivia  SJoll  against  E.  K.  Hogen- 
son  and  others.  Judgment  for  defendants, 
and  plaintiff  appeals.     Reversed. 


•For  otlier  cases  see  same  topic  and  sectioa  NUMBER  in  Dec.  t  Ain.  Digs.  1907  to  data,  ft  Reporter  IndezM 


Digitized  by  VjOOQ  l€ 


N.D.) 


SJOLI  V.  HOGENSON. 


1009 


Townley  &  Frankberg  and  H.  A.  Llbby,  for 
appellant  Jeff  M.  Meyen,  B.  R.  Sinker,  and 
J.  E.  Gray,  for  respondents. 

CARMODX,  J.  This  action  is  brought 
against  tbe  defendants  as  bondsmen  of  Gil- 
bert R.  GoHickaon,  administrator  of  the  es- 
tate of  Christian  Gunderson,  by  Olivia  SJoIi, 
daughter  and  one  of  the  heirs  at  law  of 
Christian  Gunderson,  to  recover  the  sum  of 
$1,388,  claimed  to  be  the  amount  due  her  as 
heir  at  law  of  said  Christian  Gunderson. 

The  action  was  tried  to  a  jury,  and  at  tbe 
close  of  the  testimony  both  parties  moved  for 
a  directed  verdict.  The  trial  court  granted 
the  motion  of  defendants,  and  directed  the 
Jury  to  return  a  verdict  in  their  favor.  Such 
verdict  was  returned.  In  due  time  plalntiCF 
made  a  motion  for  Judgment  in  said  action 
notwithstanding  the  verdict,  or  for  a  new 
trial,  which  motion  was  denied.  PlaintifC 
appeals  to  this  court  from  the  order  denying 
such  motion. 

A  decision  of  this  case  will  involve  a  con- 
sideration of  the  following  facts:  On  March 
13,  1901,  one  Christian  Gunderson  died  in- 
testate in  Walsh  county,  N.  D.,  leaving  prop- 
erty therein,  and  leaving  this  plaintUf  as  one 
of  his  heirs  at  law  entitled  to  one-sixth  of  his 
estate.  On  June  22,  1901,  one  Gilbert  R.  Gul- 
lickson,  of  Grafton,  N.  D.,  was  appointed  ad- 
ministrator of  said  estate,  and  furnished  a 
}>ond  in  the  sum  of  $6,000  with  defendants  E. 
K.  Hogenson  and  S.  J.  Grinde  as  sureties 
thereon,  and  letters  of  administration  were 
issued  in  said  estate.  On  January  27,  1902, 
an  order  was  made  for  the  sale  of  land  in 
said  estate,  which  order  required  an  addi- 
tional or  sale  bond  In  the  sum  of  $14,000, 
which  was  furnished  by  said  administrator 
with  defendants,  Ben  Tronslln,  John  M. 
Szarkowski,  and  Cyrus  Rltchey,  as  sureties 
thereon,  and  thereafter  a  sale  of  said  real 
estate  was  made  and  duly  confirmed.  On 
March  8,  1902,  the  said  administrator  filed  in 
the  county  court  of  Walsh  county,  in  said  es- 
tate, his  final  report  and  account  and  petition 
for  distribution,  which  account  showed  a  bal- 
ance of  $8,376  in  his  hands  as  such  admin- 
istrator for  distribution  among  the  heirs.  It 
also  stated  the  names  of  the  heirs,  and  the 
amount  each  was  entitled  to.  Said  county 
court  issued  a  notice  of  bearing  on  said  final 
account  and  petition  for  distribution  on  April 
26,  1902,  and  a  notice  of  said  hearing  was 
published  as  provided  by  law.  On  said  26th 
day  of  April,  the  hearing  of  said  matter  was 
postponed  to  May  19,  1902,  at  which  time  the 
fallowing  was  added  to  said  final  account: 
"The  attached  vouchers  show  that  $8,316 
have  been  paid  to  above  heirs  since  filing  re- 
port, leaving  a  balance  of  $60  to  be  divided 
In  like  proportions,  corrected  5-19-'02,  or 
that  such  further  order  may  be  made  as  is 
meet  in  the  premises." 

On  May  19,  1902,  the  county  court  made  an 
order  allowing  said  final  account,  whlrh,  so 
far  as  material  here,  is  as  follows:    "Now, 

122  N.W.-64 


on  this  day  aforesaid,  being  a  day  of  the  reg- 
ular or  May  term,  A.  D.  1902,  of  this  court,  it 
duly  appearing  to  the  court,  after  having 
fully  examined  the  said  account  and  the 
vouchers  produced  In  support  thereof,  that 
ttie  said  account  contains  a  Just  and  full  ac- 
count of  all  moneys  received  and  disbursed 
by  said  GUbert  R.  GuUlckson,  administrator 
of  said  estate  from  the  22d  day  of  June,  A.  D. 
1901,  to  the  8th  day  of  March,  A.  D.  1902; 
that  all  the  necessary  and  proper  vouchers 
were  produced  and  filed  herein.  That  the 
total  amount  received  by  said  Gilbert  R, 
Gulllckson  as  such  administrator  Is  $9,788.50, 
and  full  amount  expended,  $9,728.50,  leaving 
a  balance  of  $60.  Said  amount  of  $60  in 
hands  of  administrator  is  due  and  owing  to 
the  heirs  at  law  of  said  estate,  and,  upon  ad- 
ministrator filing  vouchers  for  said  amount, 
he  and  his  sureties  on  his  84*eral  bonds  shall 
be  relieved  from  any  subsequent  liability  to 
be  incurred,  and  that  said  account  is  entitled 
to  be  allowed  and  approved ;  and,  the  court 
having  duly  considered  the  matter  aforesaid, 
it  is  ordered  and  decreed 'that  the  said  final 
report  and  account  be,  and  the  same  hereby 
Is,  in  all  respects  as  the  same  was  rendered 
and  presented  for  settlement,  approved  and 
settled." 

On  the  same  day  a -final  decree  of  distribu- 
tion in  said  estate  was  made,  and,  so  far  as 
material  here,  reads  as  follows :  "Now,  there- 
fore, on  the  petition  of  Gilbert  R.  Gulllckson, 
administrator  of  the  estate  of  Christian  Gun- 
derson, deceased,  and  pursuant  to  due  notice 
and  the  law  in  such  case  made  and  provided. 
It  Is  ordered,  adjudged,  and  decreed,  and  this 
court,  by  virtue  of  the  powers  and  authority 
vested  in  tbe  same  by  law,  doth  hereby  or- 
der, adjudge,  and  decree,  that  all  and  sin- 
gular of  the  above-described  personal  prop- 
erty be,  and  the  same  hereby  Is,  assigned  to 
and  vested  in  the  said  Nels  Burtness,  Mrs 
Olivia  Sjoll,  Mrs.  Karen  Eopperud,  Mrs.  Au- 
etta  Oas,  Mrs.  Gunda  Freedland,  Oust  Em- 
bertson,  Otllia  K.  Knudson,  Gaatfred  K. 
Knudson,  forever  in  the  following  propor- 
tions, to  wit: 

Nela  Burtness $1,396  00  same  being  ^ 

Mrs.  Olivia  Sjoll 1,.396  00      "         "       " 

Mrs.  Karen  Kopperud  1,396  00      "         "       " 

Mrs.  Anetta  Oas....  1,396  00      "         "       " 

Mrs.  Gunda  Freedland  1,396  00     «         "       " 

Gust    Embertson 465  33U 

Olilia  K.  Knudson...  465  33U 
Gaatfred  K.   Knudson       465  33% 

"To  have  and  to  hold  tbe  same,  together 
with  all  the  hereditaments  and  appurtenances 
thereunto  belonging,  or  in  anywise  apper- 
taining, to  tbe  said  above-named  persons,  and 
their  heirs  and  assigns,  forever. 

"And  it  is  hereby  directed  and  ordered, 
that  Gilbert  R.  Gulllckson,  administrator  of 
the  estate  of  Christian  Gunderson,  deceased, 
shall  immediately,  or  as  soon  as  conveniently 
can  be,  pay  and  deliver  to  the  above-named 
persons  their  respective  parts  or  portions  of 
the  residue  of  the  said  estate  as  hereinbefore 
decreed  and  assigned,  and  take  their  receipt 


Digitized  by  LjOOQ  l€ 


1010 


122  NORTHWESTERN  REPORTER. 


CN.D. 


tberefw,  and  that,  npon  tbe  payment  and 
delivery  of  the  residue  of  Bald  estate  as 
aforesaid,  and  npon  filing  doe  and  satisfac- 
tory Touchers  and  receipts  therefor  in  this 
court,  the  said  Gilbert  R.  Oullickson,  ad- 
ministrator of  tbe  estate  of  Christian  Oun- 
derson,  deceased,  shall  be  fully  and  finally 
discharged  from  Ilia  trust  as  sndi  admin- 
istrator." 

That  afterwards  and  on  the  26th  day  of 
July,  1902,  a  final  discharge  of  the  admin- 
istrator'was  made  in  said  estate,  which,  so 
far  as  material  here,  reads  as  follows:  "OU- 
bert  R.  GuUickson,  administrator  of  the  es- 
tate of  Christian  Ounderson,  deceased,  hav- 
ing this  day  duly  presented  to  and  filed  in 
this  court  satisfactory  vouchers,  showing  that 
be  has  paid  ail  sums  of  money  due  from  him 
and  has  delivered  up,  under  the  order  of 
this  court,  all  moneys  and  property  of  the 
said  estate  remaining  in  his  hands,  to  the 
parties  entitled  thereto,  in  accordance  with 
the  directions  of  the  decree  of  distribution 
made  by  this  court  on  the  IStb  day  of  Ma:^, 
A.  D.  1902.  Now.  on  motion  of  Gilbert  R. 
Oullickson,  administrator  aforesaid,  it  Is  or- 
dered, adjudged,  and  decreed  that  the  said 
Gilbert  R.  Oullickson,  administrator  of  the 
estate  of  said  (%rlstlan  Ounderson.  deceased, 
having  brought  the  administration  of  the 
said  estate  to  a  close,  his  letters  of  adminis- 
tration of  the  estate  of  Christian  Ounder- 
son, deceased,  are  hereby  vacated;  and  the 
said  Gilbert  R.  Oullickson,  administrator 
aforesaid,  and  his  sureties,  are  hereby  re- 
leased from  any  liability  to  be  hereafter 
incurred."  That  previous  to  this  discharge 
the  administrator  paid  to  plaintUT  the  som 
of  $10,  and  obtained  her  receipt  therefor, 
which  he  filed  in  said  county  court. 

Plaintiff  and  her  husband  lived  on  a  farm 
in  Ottertail  county,  Minn.  Neither  could 
read  nor  write  the  English  language.  In 
April,  1902,  the  administrator  went  to  Fer- 
gus Falls,  Minn.,  where  plaintiff  and  her 
husband  met  blm  as  per  request  by  letter. 
He  obtained  a  voucher  or  receipt  for  $1,386, 
which  is  In  part  as  follows:  "This  being  one- 
sixth  part  of  said  estate  which  is  all  I  am 
entitled  to  as  shown  by  the  final  report" 

On  the  same  day  the  administrator  handed 
to  the  husband  of  plaintiff  a  paper  which, 
so  far  as  material  here,  reads  as  follows: 
"North  Dakota.  $1,386.00.  Fergus  Falls, 
Minn.,  April  1902.  On  or  before  October  1st, 
1002,  I  promise  to  pay  to  the  order  of  Peder 
O.  SJoli  at  Fergus  Falls,  Minn.,  for  value 
received,  thirteen  hundred  and  eighty-six  and 
no  hundredths  dollars  out  of  the  C.  Gunder- 
son  estate,  as  soon  as  this  amount  is  collected, 
on  account  due  the  estate  with  annual  inter- 
est at  the  rate  of  6  per  cent  from  date  antll 
maturity,  and  interest  at  the  rate  of  6  per 
cent  after  maturity,  payable  annually  until 
fully  paid.  Interest  not  paid  when  due  shall 
bear  Interest  at  the  rate  of  6  per  cent,  per 
annum  until  paid.  O.  R.  Oullickson,  Admin- 
istrator of  Christian  Ounderson  Estate." 


This  paper,  defendants  contend,  la  a  prom- 
issory note  extending  the  time  of  payment  of 
plaintUTs  share  of  the  said  estate,  and  re- 
leasee tbe  defendants.  Neither  the  plaintiff 
nor  her  husband  knew  the  cont^its  of  it  In 
fact,  the  plaintiff  did  not  see  the  paper  until 
after  she  retnmed  to  her  home.  Afterwards, 
Oullickson,  tbe  administrator,  went  to  Texas. 
On  March  28,  1903,  he  wrote  platntifTs  hus- 
band a  letter  in  which  be  stated  in  substance 
that  he  would  send  tbe  money  Just  as  aoon 
as  he  could  get  it  from  other  parties  whom 
he  claimed  had  tbe  money.  He  afterwards 
returned  to  Grafton,  iind  on  May  2,  1901, 
wrote  plaintifrs  husband  another  letter  in 
which  he  stated  that  he  would  send  tbe  mon- 
ey as  soon  as  he  could  get  it  from  tbe  man 
who  bad  it.  In  July  or  August,  1904,  one 
Oust  Embertson  went  to  Grafton;  plaintiff 
and  her  husband  gave  him  the  so-called  prom- 
issory note,  and  instructed  him  to  see  about 
getting  tbe  money  due  plaintiff  from  GuUick- 
son as  administrator  of  her  father's  estate. 
On  August  20,  1904,  Oullickson  wrote  plain- 
tiff's husband  a  letter  in  which  he  stated  that 
he  had  met  Embertson,  and  that  he  would  fix 
the  matter  up  much  sooner  than  it  could  be 
enforced  by  t)rocees  of  law.  All  these  let- 
ters were  written  in  tbe  Norwegian  language. 
About  this  time  the  so-called  note  was  turned 
over  to  plaiutlfl's  attorneys  for  collection,  as 
well  as  the  matter  of  collecting  the  money 
from  defendants.  The  administrator,  Oul- 
lickson, died  in  tbe  winter  or  spring  of  1905. 

The  following  sections  of  the  Revised  Codes 
of  1905  are  applicable  to  the  facts  in  this 
case: 

"Sea  7898.  The  proceedings  of  a  county 
court  in  the  exercise  of  its  Jurisdiction  are 
construed  in  the  same  manner  and  with 
like  Intendments,  as  the  proceedings  of  courts 
of  general  Jurisdiction,  and  to  its  records, 
orders  and  decrees  there  Is  accorded  like 
force,  effect  and  legal  presumptions  as  to 
the  records,  orders.  Judgments  and  decrees 
of  courts  of  general  Jurisdiction." 

"Sec.  8067.  An  executor,  administrator  or 
guardian  may  at  any  time  present  to  the 
county  court  a  petition  praying  that  his 
account  may  be  settled  and  that  a  decree 
may  thereupon  be  made  revoking  his  letters 
and  discharging  him  accordingly.  The  peti- 
tion must  set  forth  the  facts  upon  which 
tbe  application  is  founded;  but  tbe  applica- 
tion shall  not  6e  entertained  while  a  pro- 
ceeding is  pending  for  tbe  removal  of  tbe 
executor,  administrator  or  guardian  or  If  in 
tbe  (pinion  of  the  Judge  there  Is  good  cause 
for  his  removal  or  other  sufficient  cause  for 
refusing  to  entertain  tbe  same." 

"Sec.  8068.  If  tbe  court  oktertalns  such  ap- 
plication, a  citation  must  issue  to  all  parties 
interested  in  tbe  estate.  At  the  bearing  any 
creditor  or  otber  person  interested  may  allege 
cause  for  denying  the  application  or  allege 
cause  for  his  removal  and  pray  relief  accord- 
ingly. Upon  a  trial  of  tbe  issue  if  the  court 
determines  that  sufficient  cause  exists  for 


Digitized  by  VjOOQ  l€ 


N.  D.) 


BJOLI  ▼.  HOQENSON. 


1011 


granting  the  application  the  petitioner  mnst 
be  allowed  to  account;  and  after  be  has 
fully  accounted  and  paid  over  all  money 
which  la  found  to  be  due  from  him  to  the  es- 
tate and  delivered  over  all  books,  papers  and 
other  property  of  the  estate  in  his  hands  as 
the  court  directs  a  decree  shall  be  made  dis- 
charging him  and  revoking  his  letters,  other- 
wise such  decree  shall  be  as  Justice  requires." 

"Sec.  8199.  The  settlement  of  the  account 
and  the  allowance  thereof  by  the  court,  or  up- 
on aK>eaI,  is  conclusive  evidence  against  all 
persons  in  any  way  interested  in  the  estate 
saving,  however,  to  all  persons  laboring  un- 
der any  legal  disability,  their  right  to  move 
for  cause  to  reopen  and  examine  the  ac- 
count or  to  proceed  by  action  against  the 
executor  or  administrator,  either  individually 
or  upon  bis  bond,  at  any  time  before  final 
settlement;  and  in  any  action  brought  by 
any  such  person,  the  allowance  and  settle- 
ment of  such  account  is  prima  fade  evidence 
of  Its  correctness." 

"Sec.  8208.  Upon  the  final  settlemrait  of 
the  accounts  of  the  executor  or  administra- 
tor or  at  any  subsequent  time,  upon  the  peti- 
tion of  the  executor  or  administrator,  or  of 
any  be)r,  legatee  or  devisee,  the  court  must 
proceed  to  distribute  the  residue  of  the  es- 
tate in  the  hands  of  the  executor  or  adminis- 
trator among  the  persons  who  by  law  are  en- 
titled thereto;  and  if  the  decedent  has  left 
a  surviving  child  and  the  issue  of  other 
Children,  and  any  of  them  before  the  close 
of  administration  have  died  while  under  age 
and  not  having  been  married,  no  administra- 
tion on  such  deceased  child's  estate  is  neces- 
sary, but  all  the  estate  which  such  deceased 
child  was  entitled  to  by  Inheritance,  u.ust 
without  administration  be  distributed  to  the 
other  heirs  at  law.  A  statement  of  any  re- 
ceipts aud  disbursements  of  the  executor  or 
administrator  since  the  rendition  of  his  final 
accounts  must  be  reported  and  filed  at  the 
time  of  making  such  distribution  and  a  set- 
tlement thereof  together  with  an  estimate  of 
the  expenses  of  closing  the  estate  must  be 
made  by  the  court  and  Included  in  the  order 
or  decree;  or  the  court  or  judge  may  order 
notice  of  the  settlement  of  such  supplement- 
ary account  and  refer  the  same  as  in  other 
cases  of  the  settlement  of  accounts." 

"Sec.  8211.  In  the  decree  the  court  must 
name  the  persons  and  the  proportions  or 
parts  to  which  each  shall  be  entitled,  and 
such  persons  may  demand,  sue  for  and  re- 
cover their  respective  shares  from  the  ex- 
ecutor or  administrator  or  any  persons  hav- 
ing the  same  in  possession.  Or  the  court 
may  order  a  partition  and  after  such  further 
proceedings  as  may  be  necessary  under  the 
following  sections  shall  make  a  further  de- 
cree assigning  to  each  party  his  separate 
share  and  confirming  the  distribution  ac- 
cordingly.'' 

"Sec.  8212.  All  questions  as  to  advance- 
ments made  or  alleged  to  have  been  made 
by  the  decedent  to  his  heirs  may  be  heard 


and  determined  by  the  county  court,  and 
must  be  specified  in  the  decree  assigning  and 
distributing  the  estate;  and  the  final  judg- 
ment or  decree  of  the  court  or  in  case  6t 
any  appeal  of  the  district  court  or  Supren)e 
Court,  is  binding  on  all  parties  interested  In 
the  estate." 

Upon  all  the  evidence  counsel  for  the  de- 
fendants made  their  motion  for  a  directed 
verdict  upon  the  following  grounds: 

"(1)  The  complaint  falls  to  allege,  and  the 
evidence  to  show,  that  any  demand  was  ever 
made  upon  the  defendants'  principal,  G.  R. 
Oulllckson;  in  fact,  the  evidence  affirmative- 
ly shows  that  no  demand  was  ever  made. 

"(2)  The  complaint  fails  to  allege,  and  the 
evidence  to  show,  the  recovery  of  a  prior 
judgment  against  the  defendants'  principal  in 
view  of  the  fact  that  neither  such  principal 
nor  his  personal  r^resentatlve  is  a  part7 
to  this  action;  In  fact,  the  evidence  affirma- 
tively shows  that  no  such  judgment  has  been 
recovered. 

"(3)  The  complaint  fails  to  state,  and  the 
evidence  to  establish,  that  the  entir  of  the 
order  of  the  county  court  of  this  county  was 
procured  through  any  fraud  practiced  by  the 
defendants'  principal  upon  that  court.  Or 
through  collusion  by  said  principal  with  said 
court,  and  the  evidence  showing  afflrmatlv.e- 
ly  that  all  the  conditions  thereof  have  been 
complied  with,  the  same  constitutes  an  on- 
surmountable  barrier  to  a  recovery  herelp. 

"(4)  The  complaint  fails  to  allege,  and  the 
evidence  to  show,  that  the  contract  entered 
into  between  the  defendants'  principal  and 
plaintiff,  whereby  plaintiff,  In  consideration 
of  such  principal's  promise  to  pay  her  as 
soon  as  he  should  collect  out  of  the  estate, 
acknowledged  receipt  of  the  amount  sued  tiff, 
has  been  rescinded  by  her;  It  affirmatively 
appearing  from  the  evidence  that  such  con- 
tract and  the  promissory  note  evidencing  the 
same  is  a  valid  and  enforceable  personal  ob- 
ligation as  against  the  estate  of  O.  R.  Gul- 
lickson,  deceased,  and,  so  long  as  the  same 
stands  unrepudlated,  an  Insuperable  obstacle 
to  the  prosecution  of  this  action,  •  *  * 
and  on  the  further  ground  that  the  undis- 
puted evidence  shows  that  any  cause  of  ac- 
tion which  plaintiff  may  have  had  is  barred 
by  the  judgment  and  decree  of  the  county 
court  of  Walsh  county,  set  out  tn  defendants' 
answer." 

The  decisive  question  for  determination  in 
this  court  Is  whether  the  refusal  of  the  trial 
court  to  direct  a  verdict  in  favor  of  the  plain- 
tiff was  error.  To  this  question,  in  our  opin- 
ion, an  affirmative  answer  must  t>e  given. 
Having  reached  this  conclusion  it  is  unneces- 
sary to  consider  any  of  the  other  assign- 
ments of  error.  The  undisputed  evidence 
shows  that  the  administrator  obtained  the 
receipt  or  voucher  for  $1,386  from  plaintiff 
by  deceit  and  fraud.  Neither  she  nor  her 
husband  could  read  the  Kngllsh  language. 
He  represented  to  them  that  it  was  neces- 
sary for  her  to  sign  this  paper  before  she 


Digitized  by  VjOOQ  l€ 


1012 


122  NORTHWESTERN  REPORTER. 


(N.  D. 


conld  get  her  money,  and  that  tbe  other 
heirs  had  already  signed  similar  papers  for 
the  same  reason.  The  so-called  promissory 
note,  made  payable  to  and  dellTered  to  plain- 
tiff's husband,  was  given  to  him  through  de- 
celt  and  fraud.  The  administrator  gave  It 
to  htm  when  his  wife  was  not  present  and 
stated  to  him  that  it  was  a  paper  that 
showed  how  much  plaintiff  had  coming  from 
her  father's  estate.  Plaintiff  knew  nothing 
attout  it  until  after  she  and  her  husband  re- 
turned to  their  home  on  April  7,  1902.  The 
administrator,  Gullickson,  kept  up  the  fraud 
and  deceit  by  writing  the  letters  hereinbefore 
mentioned.  It  Is  elementary  that  a  receipt 
obtained  from  the  distributee  through  fraud 
and  misrepresentations  Is  invalid,  and  open 
to  explanation  or  Impeachment  koss  v. 
Smith,  47  111.  App.  197.  See,  also,  18  Cyc. 
609,  610,  and  cases  dted.  The  so-called  prom- 
issory note  glveik  by  the  administrator,  Gul- 
lickson, to  plaintiff's  husband  was  not  a  pay- 
ment A  payment  means  a  payment  in  mon- 
ey. If  paid  by  promissory  note,  or  in  any- 
thing else  than  cash,  it  must  be  accepted  by 
the  payee  as  payment  In  the  case  at  bar 
the  so-called  promissory  note  was  not  given 
to  the  plaintiff,  but  to  her  husband.  Neither 
she  nor  her  husband  knew  Its  contents,  and 
she  never  accepted  It  as  payment  The  dis- 
tributee may  demand,  sue  for,  and  recover, 
her  share  from  the  executor  or  administra- 
tor, or  any  person  having  the  same  in  pos- 
session. See  section  8211,  supra.  Section 
8212,  supra,  provides,  after  stating  what 
must  be  contained  in  the  final  decree  of  dis- 
tribution, that  the  final  Judgment  or  decree 
of  the  court,  or  in  case  of  an  appeal  to  the 
district  court  or  Supreme  Court  Is  binding 
on  all  parties  Interested  In  the  estate.  De- 
cree of  distribution  in  estate  of  deceased  is 
conclusive  upon  the  rights  of  heirs,  legatees, 
and  devisees.  Daly  v.  Pennle,  86  Cal.  652, 
25  Pac  67,  21  Am.  St  Rep.  61 ;  Wm.  Hill  Co. 
V.  Lawler,  116  Cal.  359,  48  Pac.  323 ;  Crew  v. 
Pratt  119  Cal.  139,  51  Pac.  88 ;  Goldtree  v. 
Allison,  119  Cal.  344,  51  Pac.  661;  Goad  v. 
Montgomery,  119  Cal.  552,  61  Paa  681,  63  Am. 
St.  Rep.  145;  In  re  Trescony's  Estate,  119  Cal. 
568,  61  Pac.  951;  Jewell  v.  Pierce,  120  Cal. 
79,  52  Pac.  132;  Toland  v.  Earl,  129  Cal.  148, 
61  Pac.  914,  79  Am.  St  Rep.  100;  Smith  T. 
Vandepeer,  3  Cal.  App.  300,  85  Pac.  136.  See, 
also,  notes  48  Am.  Dea  744-747;  60  Am.  St 
Rep.  634;  Kauffman  v.  Foster,  3  Cal.  App. 
741,  86  Pac.  1108. 

In  Re  Trescony's  Estate,  supra,  the  court 
said:  "The  decree  of  distribution  was  a  Ju- 
dicial construction  of  the  wUl  of  the  dece- 
dent, and  the  determination  by  the  court,  as 
well  of  the  persons  who  were  entitled  to 
his  estate,  as  of  the  proportions  or  parts  to 
which  each  of  those  persons  were  entitled, 
and  was  'conclusive  as  to  the  rights  of  heirs, 
legatees,  or  devisees,  subject  only  to  be  re- 
versed, set  aside,  or  modified  on  appeal.'" 

The  decree  of  distribution  Is  an  instrument 
by  virtue  of  which  heirs  receive  the  property 


of  the  deceased.  It  Is  the  final  determination 
of  the  rights  of  the  parties  to  a  proceeding, 
and,  npon  its  entry,  their  rights  are  thereaft- 
er to  be  exercised  by  the  terms  of  the  decree. 
There  is  another  reason  why  the  final  decree 
of  distribution  In  the  estates  of  deceased  per- 
sons must  be  held  conclusive.  Under  our  pro- 
bate system,  all  deralgnment  of  title  to  the 
property  of  deceased  persons  is  through 
the  decree  of  distribution,  entered  as  a  final 
act  in  the  administration  of  an  estate,  wheth- 
er testate  or  Intestate.  No  one  will  contend 
that  this  decree  can  be  made  by  any  other 
court  or  in  any  other  proceeding.  It  consti- 
tutes, not  only  the  law  of  the  personalty,  but 
also  of  the  real  estate.  Toland  v.  Earl,  129 
Cal.  148,  61  Pac.  914,  79  Am.  St  Rep.  100, 
supra.  A  decree  of  distribution  has,  in  most 
respects,  all  the  efilcacy  of  a  Judgment  at 
law,  or  decree  in  equity.  An  action  may  be 
maintained  upon  It  for  noncompliance  with 
its  requirements,  and  there  is  no  greater  ne- 
cessity for  a  demand  before  bringing  action 
than  exists  in  case  of  suit  upon  an  ordinary 
Judgment  at  law,  or  before  issuing  an  execu- 
tion upon  a  Judgment  Melone  v.  Davis,  67 
Cal.  279,  7  Pac.  703.  When  a  decree  of  dis- 
tribution has  been  made  the  probate  court 
has  no  longer  Jurisdiction  of  the  property 
distributed,  and  the  distributee  thenceforth 
has  an  action  to  recover  his  estate,  or.  In 
proper  cases,  its  value.  Wheeler  v.  Bolton, 
64  Cal.  302;  Mortenson  t.  Bergthold,  64  Neb. 
208,  89  N.  W.  742;  Bryant  et  al.  v.  Mcintosh. 
8  Cal.  App.  96,  84  Pac.  440.  If  an  executor 
or  administrator  had  possession  of  property, 
his  duty  is  not  ended  until  he  has  delivered 
the  property  in  accordance  with  the  decree  of 
distribution.  Wheeler  v.  Bolton,  supra;  Mor- 
tenson V.  Bergthold,  supra;  Bryant  et  al.  ▼. 
Mcintosh  et  aL,  supra. 

In  an  action  against  an  executor  or  admin- 
istrator for  failure  to  obey  the  final  decree^ 
and  turn  over  the  property  to  the  party  enti- 
tled thereto,  the  Judgment  is  sufficiently  sup- 
ported by  proof  of  the  decree  of  distribution, 
and  the  failure  of  the  executor  or  administra- 
tor to  pay  to  the  plaintiffs  the  amount  due 
thereunder.  Bryant  et  al.  v.  Mcintosh  et  aL, 
supra;  Irwin  v.  Backus,  25  Cal.  214,  85  Am. 
Dec.  125.  Sureties  of  the  deceased  executor 
or  administrator  are  not  discharged  at  his 
death  with  respect  to  his  acts  or  defaults 
concerning  the  estate  In  his  lifetime.  18  Cyc. 
1262,  and  cases  cited  In  note  thereto.  The 
failure  or  refusal  of  an  administrator  to  pay 
over  or  distribute  the  estate  as  required  by 
the  decree  of  distribution  is  a  breach  of  the 
bond  for  '^bich  he  and  his  sureties  are  re- 
sponsible. 18  Cyc  1270,  and  cases  cited  in 
note  73. 

In  an  action  against  the  sureties  on  an  ad- 
ministrator's bond,  for  a  breach  of  the  bond 
by  the  principal,  the  proceedings  taken  in  the 
probate  court  in  passing  on  an  account  ren- 
dered by  the  administrator,  and  the  decree 
rendered  therein  directing  the  administrator 


Digitized  by 


Google 


N.D.) 


BJOLI  ▼.  HOGENSON. 


1013 


to  pay  oyer  a  sum  found  remaining  in  bis 
bands,  are  admifislble  In  evidence  against  tbe 
sureties  although  the  sureties  were  not  par- 
ties to  the  same.  Such  decree  is  equally  con- 
doslye  upon  tbe  administrator  and  his  sure- 
ties, and,  upon  the  refusal  of  tbe  administra- 
tor to  obey  tbe  same,  tbe  liability  of  tbQ  sure- 
ties attaches,  and  they  cannot  go  behind  tbe 
decree  to  inquire  Into  tbe  merits  of  tbe  mat- 
ter, tbereln  passed  on.  Joy  v.  Elton,  9  N.  D. 
428,  83  N.  W.  875;  Irwin  t.  Backus,  25  Cal. 
214,  85  Am.  Dec.  125;  18  Cyc.  1272,  and  cases 
cited.  Holden  v.  Curry  et  al.,  85  Wis.  504, 
55  N.  W.  965 ;  JralElns  T.  State,  76  Md.  255, 
23  Atl.  608. 

In  an  action  on  an  administrator's  bond,  a 
Judgment  or  decree  against  tbe  executor  or 
administrator  is  considered,  by  tbe  prepon- 
derance of  authority,  as  conclusive  evidence 
against  the  sureties,  though  they  were  not 
parties  to  tbe  proceeding  in  which  tbe  judg- 
ment or  decree  was  rendered.  11  Am.  & 
Eng.  Ency.  of  Law  (2d  Ed.)  901,  and  cases 
cited  In  note  2.  Tbe  final  decree  sued  on  not 
being  Invalid  we  shall  hold  that  it  is  con- 
clusive, and  imports  the  same  degree  of  veri- 
ty as  judgments  entered  by  courts  of  record 
in  this  state.  It  Is  contended  that  tbe  order 
of  the  county  court,  made  on  the  26tb  day  of 
July,  1902,  discharging  the  administrator,' 6. 
R.  Guillclison,  from  bis  trust,  and  releasing 
him  and  bis  sureties  from  all  liability  there- 
after Incurred,  is  a  complete  defense  to  this 
action.  A  complete  answer  to  tbls  contention 
is  that  tbe  said  discbarge  was  made  ex  parte 
and  without  notice  to  tbe  parties  Interested 
in  said  estate.  See,  however.  Pollock  v.  Cox, 
108  Ga.  430,  34  8.  E.  213;  Bryant  et  al.  v.  Mc- 
intosh et  al.,  S  Cal.  App.  95,  84  Pac.  440.  Re- 
spondents strenuously  contend  that  tbe  order 
by  the  county  court  on  May  26,  1902,  settling 
the  account,  adjudicated  the  matters  of  tbe 
payments  claimed  to  have  been  made  between 
March  and  May,  1902,  and  settled  the  account 
upon  tbe  basis  of  such  payments  baving  been 
made,  rendering  tbe  question  of  such  pay- 
ments res  judicata.  It  may  be  that  an  or- 
der allowing  a  final  account,  which  final  ac- 
count contains  only  proper  items,  is  final  and 
conclusive. 

In  tbe  case  at  bar  the  administrator  filed 
a  final  account  on  March  8, 1902,  which  show- 
ed a  balance  of  $8,376  in  bis  bands  to  be  dis- 
tributed to  tbe  heirs  at  law.  On  May  19,  be 
attached  tbe  following  addenda  to  tbe  said 
final  account:  "Tbe  attached  vouchers  show 
that  $8,316  have  been  paid  to  above  beirs 
since  filing  the  report,  leaving  a  balance  of 
$60  to  be  divided  in  like  proportions.  Cor- 
rected 5-19-'02."  This  last  had  no  place  In  the 
final  account.  Tbe  only  proper  items  to  be  In- 
cluded in  tbe  supplementary  final  account  are 
a  statement  of  the  receipts  and  disburse- 
ments, since  tbe  rendition  of  tbe  final  ac- 
count, together  with  an  estimate  of  tbe  ex- 
penses of  closing  tbe  estate.  Disbursements, 
in  this  connection,  mean  the  payment  of 
claims  or  expenses  of  administration.    Tbe 


administrator  has  no  right  to  pay  any  money 
to  any  of  the  beirs  at  law  untU  tbe  final  de- 
cree of  distribution  is  made,  except  that,  aft- 
er tbe  lapse  of  time  limited  for  filing  claims, 
any  beir,  devisee,  or  legatee  may  present  to 
the  coiuity  court  a  petition  for  tbe  legacy  or 
share  of  the  estate  to  which  be  is  entitled. 
Notice  must  then  be  given  to  all  parties  inter- 
ested In  the  estate,  and  tbe  county  court 
may,  on  hearing,  order  all  or  a  portion  of  his 
share  of  tbe  estate  assigned  to  the  petitioner. 
The  petitioner  must  also  give  a  bond  condi- 
tioned for  tbe  payment  of  bis  proportion  of 
the  debts  due  from  the  estate. 

The  cases  cited  by  the  respondents  In  sup- 
port of  their  contention,  that  tbe  order  al- 
lowing the  final  account  is  res  judicata,  do 
not  apply  to  the  facts  in  tbls  case.  Smith  v. 
Hauger,  150  Mo.  437,  51  S.  W.  1052,  only 
decides  that  a  judgment  of  tbe  probate 
court,  finally  settling  and  distributing  the  es- 
tate discharging  the  executor  without  objec- 
tion from  a  specific  legatee,  is  a  final  judg- 
ment. In  that  case  the  specific  legatee  stood 
by  and  consented  to  tbe  final  settlement  and 
distribution  of  the  estate  without  demanding 
bis  legacy,  because  of  a  verbal  agreement 
between  himself  and  the  other  legatees  tliat 
tbey  would  pay  bis  legacy.  A  year  after- 
wards, tbe  other  legatees  not  baving  paid 
bis  legacy,  be  asked  tbe  probate  court  to 
disregard  the  final  settlement.  Held  be  was 
estopped. 

In  Tobelman  v.  Hlldebrandt  et  al.,  72  Cal. 
313,  14  Pac.  20,  the  action  was  brought  by 
plalntilf  against  tbe  administrator  and  his 
bondsmen  after  an  estate  bad  been  settled 
and  closed,  alleging  that  the  administrator 
owed  tbe  deceased,  in  his  lifetime,  $10,000, 
on  a  promissory  note  which  tbe  administra- 
tor failed  to  Inventory  or  account  for  in  the 
settlement  of  the  estate.  Plaintiff  knew  of 
these  facts  long  before  the  settiemenf  and 
distribution  was  made.  Held  she  could  not 
maintain  the  action.  Nearly  ail  tbe  cases, 
cited  by  respondents  are  cases  where  the 
executor  or  administrator  was  sued  after 
the  estate  was  settled  or  distributed  for  not 
collecting  all  tbe  property  of  the  deceased,  or 
omitting  some  of  it  from  the  inventory,  and, 
in  all,  tbe  facts  differ  from  the  facts  in  tbe 
case  at  bar. 

The  complaint  alleges  and  the  evidence 
shows  that,  before  the  commencement  of 
this  action,  demand  was  made  upon  tbe  de- 
fendants for  the  payment  of  the  amount- 
herein  sued  for. 

The  district  court  is  directed  to  reverse  its 
Judgment,  and  render  a  judgment  in  favor  of 
plaintiff  for  the  amount  sued  for  in  tbls  ac- 
tion. All  concur,  except  MORGAN,  O.  J.,  not 
participating. 

On  Petition  for  Rehearing. 

CARMODY,  J.  In  this  case  the  defendants 
have  filed  a  petition  for  rehearing,  urging, 
among  other  points,  that  tbe  decision  of  the' 


Digitized  by  VjQOQ  l€ 


lOU 


122  NORTHWBSTBBN  RBPOBTBS. 


(N.  D. 


court  filed  berein,  by  necessary  implication, 
hijlda  that  an  order  settling  an  administrator's 
account  can  be  collaterally  impeached  for  oth- 
er..than  Jurisdictional  reasons.  In  this  they 
are  mistaken.  The  final  account  of  the  admin- 
istrator, as  filed,  and  on  which  the  notice  of 
hearing  was  made,  showed,  as  It  should,  that 
tSere  was  a  balance  of  18,376  in  his  hands 
for  distribution  to  the  belrs.  On  May  19, 
£002,  tlie  day  to  wblch  the  bearing  was  ad- 
jyorned,  the  administrator  added  to  the  said 
Stal  account  the  following:  "The  attached 
vouchers  show  that  $8,316  have  been  paid  to 
aboTe  heirs  since  filing  the  report,  leaving  a 
lialance  of  $60  to  be  divided  in  like  propor- 
ttons.  Ccnrected  6-19-*02."  For  the  rea- 
0m  stated  in  the  opinion  this  last  had  no 
place  in  the  final  account  On  the  same  day, 
CDd  afterwards,  the  county  court  of  Walsb 
^unty  made  Its  final  decree  of  distribution 
fin  this  estate.  In  which  it  decreed  and  gave 
to  the  heirs  $8,376  or  $1,396  each,  only  $10  of 
which  was  ever  paid  to  this  plaintiff. 

Section  SSOS  of  the  Revised  erodes  of  1905, 
as  far  as  material  here,  provides: 

"Upon  the  final  settlement  of  the  accounts 
at  the  executor  or  administrator  or  at  any 
■ulMequent  time,  upon  the  petition  of  the  ex- 
ecutor or  administrator,  or  of  any  heir,  lega- 
tee or  devisee,  the  court  must  proceed  to 
distribute  the  residue  of  the  estate  in  the 
bands  of  the  executor  or  administrator 
among  the  persons  who  ate  by  law  entitled 
thereto." 

Section  8211  of  the  same  Cod^  as  far  as 
material  here,  provides: 

"In  the  decree  the  court  must  name  the  per- 
sons and  the  proportions  or  parts  to  which 
each  shall  be  entitled,  and  such  persons  may 
demand,  sue  for  and  recover  their  respective 
shares  from  the  executor  or  administrator 
<x  any  person  bavlng  the  same  in  posees- 
ston." 

It  Is  undisputed  that  the  administrator  did 
not  obey  the  final  decree,  in  that  he  failed  to 
pay  to  the  plaintiff  $1,386  of  her  distributive 
share,  which  failure  to  pay  is  a  violation  of 
the  final  decree,  and  a  breach  of  his  bond; 
bence  plaintiff  can  maintain  this  action,  and 
the  court  should  have  directed  a  verdict  In 
her  favor  for  the  said  sum  of  $1,386.  The 
order  of  the  county  court  settling  the  final 
account  relieved  the  administrator  and  his 
bondsmen  from  any  subsequent  liability  to 
be  incurred.  The  liability  to  pay  the  $1,396 
teas  previously  Incurred,  hence  by  that  order 
tbe  administrator  and  his  bondsmen  were 
not  relieved  from  that  liability,  and,  he  hav- 
ibg  paid  plaintiff  but  $10,  tbe  defendants,  bis 
bondsmen,  are  liable  to  ber  for  tbe  balance 
of  $1,386. 

In  their  answer  tbe  defendants  set  up,  as 
a  defense,  an  order  made  by  the  said  coun- 
ty court  on  tbe  26th  day  of  July,  1902,  dis- 
charging the  administrator,  O.  R.  OuUlck- 
M»n,  from  bis  trust,  and  releasing  him  and 
bis  sureties  from  all  liability  thereafter  in- 


curred. In  tbe  oplnkm  filed  In  tbia  case,  tb« 
court  says:  "A  complete  answer  to  this  con- 
tention is  that  tbe  said  discharge  was  made 
ex  parte  and  without  notice  to  the  parties  in- 
terested In  said  estate^"  Defendants  con- 
tend in  their  petition  for  rehearing  that  it 
was  not  an  ex  parte  order;  that  the  dtat'on, 
upon  which  tbe  order  allowing  the  final  ac- 
count was  made  and  tbe  final  decree  of  dis- 
tribution entered,  cited  the  appellant  to 
show  cause  why  tbe  administration  of  tbe 
said  estate  should  not  be  closed  and  tbe  ad- 
ministrator discharged.  Section  8196  of  tbe 
Revised  Codes  of  1906,  as  far  as  material 
here,  provides:  "If  from  any  cause  tbe 
hearing  of  the  account,  or  the  partition  and 
distribution  be  postponed,  '^e  order  postpon- 
ing the  same  to  a  day  certain  is  notice  to  ail 
persons  Interested  therein."  The  citation 
was  returnable  <m  tbe  26tb  day  of  April, 
1U02,  on  which  day  an  order  was  made  post- 
poning tbe  bearing  to  May  19,  19U2,  on 
which  day  the  order  allowing  tbe  final  ac- 
count and  tbe  decree  of  distribution  were 
made.  No  further  postpmiement  was  had; 
hence  tbe  order  discharging  tbe  administra- 
tor and  releasing  bis  sureties  from  liability 
thereafter  incurred  made  on  the  26th  day  of 
July  1902,  not  being  on  a  day  certain  to 
which  the  bearing  was  postponed,  was  made 
ex  parte.  The  defendants  contend  that,  even 
if  the  order  was  made  ex  parte,  it  was  valid 
until  It  was  vacated  In  a  direct  proceeding. 
Admitting  this  to  be  true,  it  does  not  help 
the  defendants  in  this  action,  as  tbe  dis- 
cbarge at  best  only  released  the  administra- 
tor and  his  sureties  from  any  liahllity'  to  be 
thereafter  incurred,  and,  as  hereinbefore 
stated,  the  liability  to  this  plaintiff  was  in- 
curred prior  to  that  time. 

In  tbe  original  opinion  this  court  says: 
"Tbe  so-called  promissory  note,  given  by  the 
administrator,  GulUckson,  to  plaintiff's  hus- 
band, was  not  a  payment  A  payment  means 
a  payment  In  money.  If  paid  by  promissory 
note,  or  anything  else  than  cash.  It  must  be 
accepted  by  tbe  payee  as  payment  In  the 
case  at  bar  tbe  so-called  promissory  note 
was  not  given  to  the  plaintiff,  but  to  ber 
husband ;  neither  she  nor  her  huaband  knew 
its  contents,  and  she  never  accepted  it  as 
payment"  Defendants,  In  their  petition  for 
rehearing,  contend  that  no  claim  was  made 
by  them  that  tbe  note  referred  to  was  given 
or  received  as  payment,  but  that  plaintiff 
could  not  retain  the  note  and  at  the  same 
time  maintain  this  action.  True,  defendants 
did  not  claim  that  the  so-called  promissory 
note  was  given  or  received  as  payment,  but 
did  and  do  claim  that  plaintiff  could  not  re- 
tain Oulllckson's  note  and  at  the  same  time 
maintain  this  action.  Plaintiff,  the  appel- 
lant herein,  contended  to  her  brief  that  the 
note  was  neither  accepted  nor  received  in 
payment,  and  this  court  sustained  ber  con- 
tention. Defendants  are  not  In  a  position  to 
claim  that  plaintiff  cannot  retain  Gullick- 


Digitized  by  VjOOQ  l€ 


Minn.) 


SPRENG  T.  JUNI. 


1015 


aoa'B  n*te^  and  at  the  same  time  maintain 
thla  action ;  plaintiff  could  neither  read  nor 
write  the  EingllBh  language,  and  did  aot  know 
the  contents  of  the  so-called  promissory  note. 
Gulllckaon  told  her  husband,  when  he  hand- 
ed It  t*  him,  that  It  was  a  paper  to  show 
how  much  was  to  come  out  of  the  estate; 
she  never  at  any  time  waived  any  of  the 
conditions  of  the  final  decree  of  distribution. 
The  defendants  have  not  In  any  way  been 
prejudiced  by  her  retaining  the  so-called 
note,  and  do  not  come  within  the  provisions 
of  section  5380  of  the  Revised  Codes  of  1905. 
The  petition  Is  denied.  All  concur,  except 
MORGAN,  a.  X,  not  participating. 

8PRBNO  V.  JUNI. 
(Supreme  Court  of  Minnesota.    Nov.  S,  1900.) 
Bnxs  AiTD  Notes  (${  443,  616*)— Altebatiok 

or    INBTBUMENTS    (I    11*)  —  PRINOIPAI.    AKD 

Agent  (J  160*)  —  Actions  —  Spoliation  — 
Ohanok  bt  Aqent  — SumciEHCY  or  Eivi- 

DKNCB. 

In  this,  an  action  upon  a  pTomissory  note 
in  its  original  form,  wliich  baa  been  changed 
by  erasing  tlie  name  of  plaintilFs  agent,  who 
was  named  therein  as  payee,  and  inserting  her 
own  name,  it  is  held: 

1.  The  owner  of  a  promissory  note,  in  which 
a  third  party  is  named  aa  pavee,  may  maintain 
an  action  upon  it  without  indoiBement,  upon 
proof  of  such  ownership  by  evidence  other  than 
the  note. 

2.  A  change  in  a  written  contract  by  a 
stranger  thereto  is  not  an  alteration,  but  a  spoli- 
ation, which  does  not  avoid  it,  and  the  obligee 
may  enforce  it  in  its  original  form,  as  if  no 
change  liad  been  made. 

3.  If  the  change  is  made  bv  an  agent  having 
no  anthority  which  includes  tne  mailing  of  such 
change,  it  does  not  avoid  the  contract,  unless 
ratified  by  the  principal. 

4.  Evidence  considered,  and  held  sufficient  t9 
sustain  the  verdict  for  the  plaintiff. 

[ta.  Note.— For  other  cases,  see  Bills  and 
Notes,  Cent  Dig.  fi  1377-1423;  Dec.  Dig.  If 
443.  616j*  Alteration  of  Instruments,  Cent, 
Dig.  U  67-76 ;  Dec.  Dig.  |  11;«  Principal  and 
.\gent.  Dec.  Dig.  {  150.*] 
(Syllabus  by  the  Court.) 

Appeal  from  District  C!onrt,  Brown  Coun- 
ty; I.  M.  Olson,  Judge. 

Action  by  Margaretlia  Spreng  against  Bm- 
edict  Jnnl  and  another.  Verdict  for  plain- 
tiff. From  an  order  denying  bis  altt^matlve 
motion  for  judgment  notwithstanding  the 
verdict  or  for  a  new  trial,  defendant  Jnnl 
appeals     Affirmed. 

Albert  Pfaender,  for  appellant  SomervlUe 
ft  Hauaer,  for  respondent. 

START,  C  3.  Action  upon  «  promissory 
note,  made  by  the  defendant  Gag,  as  prin- 
dpai,  and  the  defendant  Jnnl,  as  surety, 
who  alone  answered,  and  alleged  that  the 
note,  after  he  signed  It,  was  altered  without 
his  knowledge  or  consent.  The  plaintiff 
sought  to  recover  upon  the  note  in  its  orig- 
inal form  before  any  change  was  made  In  it, 
and  the  Jury  returned  a  verdict  in  her  favor 
for  the  balance  due  on  the  note.    The  de- 


fendant, Jnnl,  ai>pealed  from  the  order  of 
the  district  court  of  the  county  of  Brown, 
denying  his  alternative  motion  for  judgment 
or  for  a  new  trial,  and  here  contends  that 
there  was  no  evidence  to  sustain  the  verdict ; 
hence  the  trial  court  erred  In  denying  his 
request  for  a  directed  verdict  In  bis  favor 
and  his  motion  for  judgment 

The  evidence  was,  in  some  material  re- 
spects, conflicting;  but  there  was  evidence 
fairly  tending  to  show  that  plaintiff  loaned 
$200  to  the  defendant  Gag  by  her  agent  B. 
Gruenenfelder,  In  whose  custody  she  had 
placed  her  money  for  safe-keeping,  and  to  be 
loaned  to  such  parties  and  on  such  terms  as 
she  might  first  approve ;  that  she  authorized 
him  to  loan  |200  for  her  to  Gag,  if  Junl 
would  sign  the  note  for  It  as  Gag's  surety ; 
that  both  defendants  luiew  before  the  note 
was  executed  that  the  plaintiff  was  making 
the  loan,  and  that  Gruenenfelder  was  simply 
transacting  the  business  for  her;  that  Junl 
drew  up  and  signed  the  note,  in  which  B. 
Gruenenfelder  was  named  therein  as  payee, 
and  gave  It  to  Gag,  who  signed  and  gave  It 
to  B.  Gruenenfelder,  who.  without  any  inten- 
tional wrong,  but  ignorantly,  erased  his  own 
name  and  Inserted  the  plaintitTs  name  there- 
in as  payee,  for  the  alleged  reason,  as  stat- 
ed to  Gag,  who  consented  to  the  change, 
that  the  money  was  not  his,  but  the  plain- 
tUTs,  and  he  did  not  want  his  name  on  the 
note ;  that  he  then  gave  to  Gag  the  $200  be- 
longing to  the  plaintiff;  that  Gruenenfelder 
then  placed  the  note  in  plaintitTs  bag.  In  bis 
possession,  with  other  papers  belonging  to 
hec ;  that  she  did  not  see  the  note  until  aft- 
er It  became  due ;  and,  further,  that  sh^  never 
authorized  the  alteration  made  In  the  note, 
and  brought  this  action  to  recover  upon  it 
in  its  original  form,  as  her  own. 

The  trial  court  instructed  the  jury,  rele- 
vant to  the  issues,  as  follows:  "Now,  if  the 
Jury  find  from  the  evidence  that  the  note  in 
question  was  at  all  times  the  property  of 
and  owned  by  this  plaintiff,  that  she  made 
the  loan  and  owned  the  note,  and  that 
Gruenenfelder  had  no  authority,  express  or 
implied,  from  this  plaintiff  to  make  any 
change  or  alteration  of  the  note,  and  that 
such  alteration  thereof  by  him  was  made  aft- 
er delivery,  without  the  knowledge  and  with- 
out the  consent  of  the  plaintiff,  and  that 
the  plaintiff  had  not  ratified  the  act  of 
Gmenrafelder  in  altering  the  note,  then  you 
should  find  a  verdict  in  favor  of  plaintiff." 
The  jury  were  also  instructed  that  the  al- 
teration was  material. 

Neither  party  challenges  the  correctness  of 
the  last-named  instruction,  and  we  therefore 
assume,  for  the  purposes  of  this  appeal,  that 
the  Instruction  was  correct  The  verdict  for 
the  plaintiff.  In  connection  with  the  instruc- 
tions of  the  court  establishes  that  the  note 
in  its  original  form  was  the  property  of 
the  plaintiff,  that  the  diange  in  the  name  of 


*F*r  etlisr  easM  tat  aam*  topic  and  section  NUMBER  lo  Dm.  A  Am.  Digs.  1907  ts  data,  4k  Reporter  Tnduci 


Digitized  by  LjOOQIC 


1016 


122  NORXHWESVEBN  BEPOBTBB. 


the  payee  In  the  note  was  made  after  Its  de- 
livery, and  that  she  neither  authorized  nor 
ratified  the  change.  The  c(»itentlon  of  the 
defendant,  briefly  stated,  is  that  there  was 
no  evidence  to  sustain  the  facts  so  found  by 
the  Jury,  particularly  the  finding  that  the 
note  was  altered  after  its  delivery  and  with- 
out her  authority,  and,  further,  that  the 
court  erred  in  submitting  the  question  to  the 
Jury,  instead  of  directing  a  verdict  for  de- 
fendant Juni,  as  requested. 

Upon  a  consideration  of  the  whole  evl> 
dence,  we  are  of  the  opinion  that  it  is  suffi- 
cient to  sustain  the  verdict  of  the  Jury,  for 
the  facts  necessarily  found  by  the  Jury 
were  sufficient  In  law  to  entitle  the  plain- 
titr  to  Judgment  The  law  applicable  to 
such  facts  Is  well  settled.  The  owner  of 
a  promissory  note,  in  which  a  third  party 
is  named  as  payee,  may  maintain  an  action 
upon  It,  without  indorsement,  upon  proof  of 
such  ownership  by  evidence  other  than  the 
note.  Cassidy  ▼.  Bank,  80  Minn.  86,  14  N. 
W.  863. 

Again,  a  change  in  a  written  contract  by  a 
strange  thereto  la  not  an  alteration,  but  a 
spoliation,  which  does  not  avoid  it,  and  the 
obligee  may  enforce  it  in  its  original  form, 
as  if  no  diange  had  been  made.  If  the 
change  is  made  by  an  agent  having  no  au- 
thority which  includes  the  making  of  such 
change,  It  does  not  avoid  the  contract,  unless 
ratified  by  the  principal.  3  Page  on  Oon- 
tpacts,  §{  1614,  1615;  Ames  v.  Brown.  22 
Minn.  257. 

Order  affirmed. 


SOUTHWIOK  V.  HIMMELMAN. 
(Supreme  Court  of  Mmnesota.     Oct  29,  1008.) 

1.  Chattel  Mobtoaobs  (g  169*)— Oorvebsioit 
OF  Pbopebtt  bt  Mobtgageb. 

An  action  in  conversica  will  lie  against  the 
mortf^agee  of  a  chattel  mortgage,  the  terms  of 
which  give  the  possession  of  the  property  to  the 
mortgagor,  whOy  before  default  in  payment  and 
without  right  under  the  insecurity  provisions  of 
the  mortgage,  takes  the  property  from  the  mort- 
gagor and  sells  the  same  in  foreclosure  proceed- 
ings. The  foreclosure  in  such  case  is  wrongful 
and  unlawful. 

[Ed.  Note. — For  other  oases,  see  Chattel  Mort- 
gages, Cent.  Dig.  I  302;   Dec.  Dig.  (  169.*] 

2.  Ghattex  Mobtoages  (I  169*)--C0NVEBai0N 
OF  Pbopebtt  bt  Mobtoaoee. 

The  rule  would  be  different  if  the  right  of 
foreclosure  in  tact  existed,  bnt  the  proceedings 
were  irregular  or  defective  in  form. 

['Ed.  Note.— For  other  cases,  see  Chattel  Mort- 
gages, Cent.  Dig.  i  302 ;    Dec.  Dig.  f  169.*] 

3.  CnATTEL  Mobtoages  (§  237*)— Payment- 
Ten  deb. 

E}v!dence  set  forth  in  the  opinion  held  In- 
sufficient to  establish  a  tender  of  payment  and 
that  the  court  erred  in  instructing  the  jury 
tliat  a  tender  might  be  found  therefrom. 

[Ed.  Note.— For  other  cases,  see  Chattel  Mort- 
gages, Cent  Dig.  {  501 ;  Dec.  Dig.  §  237.*] 

(Syllabus  by  the  Court) 


Appeal  from  District  Court,  Blue  Earth 
County;   A.  B.  Pfau,  Judge. 

Action  by  Joel  E.  Southwldc  against  Henry 
Hlnunelman.  Verdict  for  plaintiff.  From  an 
order  denying  an  alternative  motion  for 
Judgment  notwithstanding  the  verdict  or  for 
a  new  trial,  defendant  appeals.    Reversed. 

Wilson  Borst  for  appellant  Chris  Carlson 
and  W.  B.  &  0.  D.  Geddes,  for  respondent 

BBOWN,  J.  Defendant  was  the  owner  of 
a  hotel  bnildlng  In  Mankato,  this  state,  fully 
equipped  with  all  necessary  furniture  and 
fixtures,  and  on  July  18,  1906,  he  leased  the 
building  to  one  Town  for  the  term  of  five 
years.  As  a  part  of  the  same  transaction, 
and  at  the  same  time,  he  sold  to  Town  all 
the  hotel  furniture  and  fixtures  for  $1,5(X>,  a 
part  of  which  was  then  paid.  Town  executed 
to  defendant  his  three  promissory  notes  of 
equal  amounts  for  the  balance  of  the  pur- 
chase price,  and  to  secure  the  payment  of  the 
same  a  chattel  mortgage  upon  the  hotel  fur- 
niture, fixtures,  and  furnishings.  The  notes 
were  by  their  terms  due  July  18,  1907,  July 
18,  1008,  and  July  18,  1009,  respectively. 
Town  then  took  possession  of  the  hotel  and 
conducted  it  until  the  latter  part  of  July, 
1907,  at  which  time  he  sold  and  transferred 
his  interest  in  the  personal  property  and  his 
rights  under  the  lease  to  plaintiff  in  this  ac- 
tion for  fl,500.  Plaintiff  purchased  subject 
to  the  chattel  mortgage,  and  paid  Town  In 
cash  about  f400;  the  amount  due  on  the 
mortgage  to  defendant  representing  the  bal- 
ance of  the  purchase  price.  Defendant  was 
Informed  of  this  transaction,  and  the  evi- 
dence tends  to  show  that  he  acquiesced  there- 
in, and  that  plaintiff  entered  into  possession 
of  the  hotel  with  his  full  knowledge  and  con- 
sent on  or  about  September  1,  1907.  No  for- 
mal written  assignment  of  the  lease  was 
made  by  Town  to  plaintiff ;  but  it  was  claim- 
ed on  the  trial  that  defendant  agreed  to  ex- 
ecute to  plaintiff  a  new  lease  for  the  remain- 
der of  Town's  term.  This  defendant  denies. 
Plaintiff  paid  defendant  the  first  maturing 
chattel  mortgage  note  at  about  the  time  he 
took  possession  of  the  property,  so  that  there 
was  nothing  due  thereon  at  the  time  of  the 
foreclosure  presently  to  be  mentioned.  He 
continued  in  possession  and  conducted  the 
hotel  for  about  three  weeks,  or  until  S^tem- 
ber  18,  1907,  when  he  vacated  the  same  and 
removed  elsewhere.  It  is  his  claim  that  he 
vacated  the  premises  because  defendant  re- 
fused to  give  him  a  new  lease,  and  the  evi- 
dence tends  to  show  that  he  repeatedly  de- 
manded one  and  that  defendant  refused  to 
execute  it  The  reason  for  defendant's  re- 
fusal to  execute  a  formal  lease  is  left  some- 
what cloudy  by  the  evidence;  but  we  infer 
that  he  was  laboring  under  the  impression 
that  inasmuch  as  Town  bad  not  assigned 
in  writing  his  lease  to  plaintiff,  defendant 


•For  other  cases  see  same  topic  and  section  NUMBER  in  Dec.  &  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


Mlna.) 


80UTHWICE  ▼.  HIMMELUAN. 


1017 


could  not,  without  Involving  himself  In 
trouble,  execute  another  leaae  to  plaintiff 
without  first  extinguishing  In  aeme  way  the 
rights  of  Town.  This  he  evidently  thought 
could  be  done  by  a  foreclosure  of  the  chattel 
mortgage  on  the  hotel  furniture,  which  would 
leave  him  in  a  position  to  resell  it  But  this 
is  not  so  seriously  important.  When  plain- 
tiff vacated  the  premises,  he  claims  to  have 
left  therein  all  the  personal  property  which 
he  received  from  Town  at  the  time  he  took 
possession,  all  of  which  was,  as  already  stat- 
ed, covered  by  the  chattel  mortgage.  Im- 
mediately after  plaintiff  left  the  premises, 
defendant  took  possession  of  the  personal 
property,  and,  although  there  was  at  the 
time  nothing  due  on  the  mortgage,  foreclos- 
ed the  same,  and  became  the  purchaser  at 
the  sale.  Since  that  time  defendant,  or  some 
member  of  his  family,  has  conducted  the 
hotel  as  a  rooming  house,  using  in  connec- 
tion therewith  the  hotel  furniture  and  fix- 
tures. Thereafter,  on  September  24,  1908,  a 
year  after  he  vacated  the  premises,  plaintiff 
brought  this  action  against  defendant,  on  the 
claim  and  theory  that  the  foreclosure  of  the 
chattel  mortgage  was  unauthorized  and  void 
and  amoonted  to  an  unlawful  conversion  of 
the  property.  The  defense,  more  particular- 
ly referred  to  hereafter,  was  that  the  mort- 
gage was  rightfully  foreclosed.  Plaintiff  bad 
a  verdict,  and  defendant  appealed  from  an 
order  denying  his  alternative  motion  for 
judgment  notwithstanding  the  verdict  or  for 
a  new  trial. 

Of  the  several  assignments,  of  error  we 
deem  It  necessary  to  refer  only  to  those  chal- 
lenging .the  correctness  of  certain  portions 
of  the  court's  Instructions  to  the  Jury.  We 
may,  however,  in  view  of  a  new  trial  of  the 
action,  say  that  the  contention  of  defendant 
that,  because  at  the  time  the  action  was  com- 
menced plaintiff  did  not  have  the  right  to  the 
possession  of  the  property,  the  action  cannot 
be  maintained,  is  not  well  taken.  The  ac- 
tion Is  for  the  wrongful  conversion  of  the 
property,  and  the  rights  of  the  parties  are 
controlled  by  the  conditions  existing  at  the 
date  of  the  alleged  conversion.  Hodge  v. 
Ry.  C3o.,  70  Minn.  193,  72  N.  W.  1074 ;  Jellet 
V.  Ry.  Co.,  SO  Minn.  265,  15  N.  W.  237.  Be- 
sides, the  terms  of  the  chattel  mortgage  gave 
the  right  of  possession  to  the  mortgagor,  to 
whose  rights  plaintiff  succeeded,  and  de- 
fendant, as  mortgagee,  had  no  right  to  it, 
except  after  default,  or  under  the  insecurity 
clause,  and  then  only  for  the  purpose  of  fore- 
closure. Defendant  was  not  holding  the 
property  as  mortgagee,  at  the  time  of  the 
commencement  of  the  action,  for  the  pur- 
pose of  foreclosing  his  mortgage,  but  as  own- 
er, under  a  prior  alleged  valid  foreclosure, 
which  It  is  claimed  vested  in  him  the  abso- 
lute title  to  the  property.  If  the  foreclosure 
was  unauthorized  and  wrongful,  and  there- 
fore unlawful,  defendant  converted  the  prop- 
erty without  right,  and  is  liable  in  trover. 


Jones  on  Chattel  Mortgages,  437.  The  rule 
would  be  different  if  the  right  of  foreclosure 
In  fact  existed  and  the  foreclosure  proceed- 
ings were  merely  defective  in  form.  Powell 
V.  Gagnon,  52  Minn.  233,  53  N.  W.  1148.  De- 
fendant may,  of  course,  even  though  the  fore- 
closure was  unauthorized,  have  the  amount 
due  on  the  mortgage  debt  deducted  from 
plaintiff's  recovery.  In  our  opinion,  the  trial 
court  properly  submitted  this  feature  of  the 
case  to  the  Jury. 

We  come,  then,  to  what  we  regard  the 
only  substantial  error  presented  by  the  rec- 
ord. Though  no  part  of  the  mortgage  in- 
debtedness was  overdue  at  the  time  defend- 
ant foreclosed  his  mortgage,  yet  he  claimed 
the  right  to  do  so  under  the  Insecurity  provi- 
sions thereof,  and  for  the  reasons  (1)  that 
plaintiff,  who  had  succeeded  to  the  rights  of 
Town,  the  mortgagor,  had  wholly  abandoned 
the  property,  and  (2)  that  the  property  had 
not  been  properly  cared  for;  that  it  had 
been  wasted  and  greatly  deteriorated  in  val- 
ue; that  a  part  thereof  had  been  secretly 
removed  from  the  premises,  disposed  of,  and 
converted  to  the  use  of  either  plaintiff  or 
Town,  by  reason  of  all  of  which  defendant 
deemed  himself  Insecure,  and  to  protect  his 
security,  and  prevent  a  further  waste  and 
loss  of  the  propertf,  took  possession  of  what 
remained  on- the  premises  at  the  time  plain- 
tiff vacated  the  building  and  foreclosed  the 
mortgage.  The  terms  of  the  mortgage  fully 
authorized  a  foreclosure  for  the  reasons  just 
stated,  if  the  facts  justified  defendant  in  be- 
lieving in  good  faith  his  security  unsafe.  If 
the  facts  sustain  his  contention  in  this  re- 
spect, the  foreclosure  was  legal  and  extin- 
guished further  claim  to  the  property  by 
plaintiff ;  there  being  no  suggestion  that  the 
foreclosure  was  not  in  all  other  respects  in 
conformity  with  the  law.  But  plaintiff  de- 
nied that  he  had  abandoned  the  property, 
or  that  It  had  become  wasted,  lost,  or  de- 
stroyed, or  by  neglect  deteriorated  in  value, 
or  that  defendant  had  any  just  or  reasonable 
cause  for  believing  himself  insecure.  lie  in- 
sisted on  the  trial,  and  again  in  this  court, 
that  defendant's  act  in  foreclosing  the  mort- 
gage was  in  bad  faith  and  without  justifica- 
tion. The  court  submitted  these  several 
questions  of  fact  to  the  jury,  and  'we  con- 
clude, though  not  without  some  hesitation, 
correctly  so.  The  only  doubt  we  entertain  on 
the  subject  has  reference  to  the  claim  that 
plaintiff,  at  the  time  he  vacated  the  build- 
ing, wholly  abandoned  the  mortgaged  prop- 
erty, which,  if  true,  would  alone  justify  de- 
fendant's foreclosure.  But,  in  view  of  all 
the  evidence,  we  sustain  the  conclusion  of 
the  trial  court  that  it  presented  a  question 
of  fact. 

The  court  charged  the  jury  in  substance 
and  effect  that  if  plaintiff  wholly  abandoned 
the  property,  or  if  it  by  neglect  had  been 
wasted,  lost,  or  made  way  with,  by  plain- 
tiff or  Town,  in  consequence  of  which  defend- 


Digitized  by  VjOOQ  l€ 


1018 


122  NORTHWESTERN  BBFORTBB. 


(Mtim 


ant  In  good  faith  beUered  himself  Insecnre, 
he  had  the  lawful  right  to  foreclose  his  mort- 
gage, even  though  no  part  of  the  secured  in- 
debtedness was  then  due,  unless,  said  the 
court,  before  the  commencement  of  the  fore- 
closure proceedings  plaintiff  tendered  defend- 
ant payment  of  the  mortgage  debt  in  fulL 
The  court  further  charged  that  there  was 
evidence  tending  to  show  such  a  tender,  and, 
if  one  was  in  fact  made,  then  defendant  could 
not  say  that  he  deemed  himself  insecure, 
even  though  the  conditions  relied  upon  by 
him  in  Justification  of  the  foreclosure  in 
fact  existed,  and  that  his  subsequent  fore- 
closure of  the  mortgage  after  the  tender 
would  be  unlawful.  In  this  instruction  we 
are  clear  the  learned  court  erred.  We  dis- 
cover no  evidence  in  the  record  to  support  or 
Justify  the  conclusion  that  a  tender  of  pay- 
ment was  made  by  plaintiff.  The  only  evi- 
dence tending  in  that  direction  was  that  giv- 
en by  plaintiff  and  his  attorney.  Plaintiff 
testified  that  at  one  stage  of  the  negotiations 
had  between  the  parties  with  reference  to  a 
new  lease  of  the  hotel,  after  defendant  had 
intimated  that  to  extinguish  all  rights  of 
Town  it  was  necessary  to  foreclose  the  mort- 
gage, he  offered  to  pay  the  mortgage  debt 
We  here  quote  all  the  testimony  pertinent 
to  the  subject  "Q.  Wei),  did  you  at  that 
time  offer  to  pay  the  mortgage?  A.  I  would 
not  be  positive  that  I  said  I  would  do  it 
or  that  I  could  do  it  if  it  yras  necessary. 
That  I  could  pay  the  whole  thing  up,  I  know 
that  I  stated,  if  that  was  what  he  wanted." 
Witness  Geddes,  who  was  present  at  the 
time,  testified:  "Then  Mr.  Southwick  [plain- 
tlfT]  spoke  up  and  said,  'If  that  is  all  you 
want  I  will  pay  the  mortgage  now,'  and  he 
took  a  big  roll  of  bills  out  of  his  pocket  and 
shook  it  at  Mr.  Hlmmelman,  and  said:  'If 
that  is  all  you  want  here  is  $800.  I  will 
pay  the  mortgage,  if  that  is  all  you  want' 
But  Mr.  Hlmmelman  said:  'I  can't  do  it  I 
have  to  settle  with  Mr.  Town  first'" 

This  testimony,  at  most  showed  a  readi- 
ness or  willingness  on  the  part  of  plaintiff 
to  pay  the  debt  at  the  time;  but  it  falls 
short  of  showing  an  unconditional  tender. 
The  offer  of  payment  was  hypothetical,  and 
conditioned  upon  the  wishes  of  defendant 
Plaintiff,  at  most,  said  that  be  would  pay 
the  debt  if  defendant  wished  it  paid.  This 
does  not  meet  the  requirements  of  the  law 
of  tender,  and  did  not  have  the  effect,  as 
the  trial  court  instructed  the  Jury,  of  extin- 
guishing the  lien  of  the  mortgage.  Hunt  on 
Tender,  3,  222;  Chase  v.  Walsh,  45  Mich. 
345,  7  N.  W.  895;  Nlederhauser  v.  Railway 
Ck>.,  131  Mich.  550,  91  N.  W.  1028.  For  this 
error  a  new  trial  must  I>e  granted. 

We  remark,  in  taking  leave  of  the  case, 
that  plaintiff's  readiness  and  willingness  to 
pay  the  mortgage,  as  indicated  by  the  testi- 
mony quoted,  is  a  proper  fact  for  the  con- 
sideration of  the  Jury  upon  the  question  of 


defoidant'B  good  faith  la  foredoslng  bis 
mortgage  on  the  ground  tliat  he  then  believed 
himself  insecure.  But  it  is  not,  In  view  of 
the  fact  that  defendant  claimed  at  the  trial 
that  he  did  not  discover  the  loss  of  part  of 
the  property  until  some  time  after  the  offer 
of  payment  was  made,  conclusive  against 
him  on  the  question  of  his  good  faith. 
Order  reversed. 


HOLDBN  V.  GARY  TELEPHONE  CO. 
(Supreme  Court  of  Minneaota.    Oct  29,  1909.) 
L  Mastib  and  Skbvart  (I  286*)— Injuries 

TO  SEBVANT — DEFEOIIVB  ApFUANCEB — QXTES- 
nOR    FOB  JUBT. 

In  an  action  for  personal  injuries,  one  of 
the  disputed  questions  was  whether  a  defective 
telephone  pple  was  furnished  by  the  master  for 
the  use  of  the  servant  In  connection  with  his 
employment  Held,  under  the  evidence,  to  Im  a 
question  of  fact  for  the  jary. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant  Dec  Dig.  |  286.*] 

2.  Mabteb  and  Sebvant  ({  286*)— Irjxtbixs 
TO  Sebvant— Question  foe  Jubt. 

Whether  the  repair  of  a  particular  appli- 
ance was  within  the  scope  of  the  servant's  em- 
ployment was  also  a  question  of  fact  for  the 
jury. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Dec.  Dig.  {  286.*] 

(Syllabus  by  the  Court) 

3.  Mastbb  and  Sebvant  (|  205*)— Assuked 
Risk. 

Where  a  telephone  employ^  was  ordered 
to  locate  defects  interfering  with  the  operation 
of  the  line,  the  state  of  preservation  in  which 
standing  poles  then  were  was  a  matter  with 
which  he  had  no  concern,  and  he  had  a  right 
to  assame  that  they  were  fit  for  the  uses  to 
which  they  were  applied. 

[EM.  Note.— For  other  cases,  see  Master  and 
Servant  Cent  Dig.  H  547-549;    Dec.  Dig.  $ 

Appeal  from  District  Oburt,  Norman  Coun- 
ty ;  Andrew  Grlndeland,  Judge. 

Action  by  Hans  Holden  against  the  Gary 
Telephone  Company.  Verdict  for  plalntiffL 
From  an  order  denying  a  motion  for  Judg- 
ment notwithstanding  the  verdict,  or  for  a 
new  trial,  defendant  appeals.    Reversed. 

Andrew  Bngeeet  and  F.  H.  Peterson,  for 
appellant  M.  A.  Brattland,  Ole  J.  Vanle, 
and  Wm.  P.  Murphy,  for  respondent 

O'BRIEN,  J.  The  defendant,  a  corpora- 
tion, owns  and  operates  a  rural  telephone 
system,  the  main  or  tmnk  line  of  which  was 
constructed  by  the  corporation.  The  branch 
lines,  extending  to  the  houses  of  the  individ- 
ual subscribers,  were  respectively  construct- 
ed by  the  subscribers  served.  The  defend- 
ant claims  that  the  obligation  is  upon  each 
subscriber  to  keep  his  Individual  branch  line 
in  repair.  Tolls  received  from  the  use  of 
any  part  of  the  system  belong  to  the  cor- 
poration. Some  faulty  condition  upon  de- 
fendant's system  was  preventing  its  proper 
operation,  and  plaintiff  was  employed  to  lo- 


•ror  other  euaa  Be«  aame  topic  and  lectloii  NUMBBR  la  Dec.  *  Am.  Din.  1907  to  data;,  *  lUportar  Ittd«x«a 


Digitized  by  VjOOQ  l€ 


Minn.) 


HOLDSN  y.  OABT  TELEPHONE  OO. 


1019 


cate  and  remedy  It  On  Angast  14,  1907,  he 
nndertook  this  work,  arrlTing  In  tbe  course 
of  bis  Inspection  at  a  branch  line  extending 
to  a  farmhouse  owned  and  occupied  by  A. 
M.  Parsons,  upon  the  south  side  of  the  trunk 
line.  The  first  pole  upon  this  branch  sup- 
ported two  wires,  one  extending  from  the 
trunk  line  south  to  the  pole,  thence  east  to 
Parsons',  and  one  leading  to  the  west  from 
the  pole  to  another  farmhouse.  The  pole 
was  Cottonwood,  estimated  to  be  from  four 
to  seven  Inches  In  diameter  at  the  lower  end, 
and  was  guyed  by  wire  to  the  south,  so  that 
while  the  wires  remained  In  position  It  was 
held  nprlght.  The  bracket,  sustaining  the 
wires  mnning  east  and  west,  was  spilt  at 
the  lower  end,  was  held  by  only  one  spike, 
and  the  weight  of  the  wires  had  drawn  It 
from  Its  original  position.  Plaintiff  went  to 
Parsons'  bonse  and  renewed  the  batteries 
which  he  found  there,  after  which  the  tele- 
phone operated  properly.  The  new  batteries 
were  paid  for  by  Mrs.  Parsons.  Leaving  the 
house,  be  met  Parsons,  who  spoke  to  him 
about  the  bracket,  saying  that  be  bad  not 
had  time  to  repair  It  The  plaintiff  stated 
that  he  had  observed  the  condition  of  the 
bracket  and  would  repair  It  Without  mak- 
ing any  direct  reply  to  this.  Parsons  Invited 
the  plaintiff  to  remain  to  dinner.  The  In- 
vitation was  declined,  and  plaintiff  proceed- 
ed to  repair  the  bracket  He  ascended  the 
pole  with  the  use  of  the  ordinary  spurs  or 
climbers  used  by  linemen,  making  no  Inspec- 
tion of  the  pole  except  to  strike  It  with  a 
spur  at  a  point  about  three  feet  from  the 
ground,  finding  it  sound  at  that  point  Up- 
on reaching  the  bracket  he  placed  a  bnlt 
aronnd  the  pole  and  his  body,  and  then  pried 
the  bracket  from  the  pole,  letting  the  wires 
to  the  ground.  The  pole  was  thoroughly  de- 
cayed at  a  point  Just  below  the  surface  of 
the  ground,  and  fell  with  the  plaintiff  as 
soon  as  the  bracket  and  wires  were  detached 
from  It  resulting  In  the  breaking  of  plaln- 
tlfTs  ankle  and  some  other  mlOor  Injuries. 
The  plaintiff  had  a  verdict  for  $1,500.  This 
appeal  was  taken  by  the  defendant  from  an 
OTder  denying  Its  motion  for  a  judgment  In 
Ita  favor  notwithstanding  the  verdict  or  for 
a  new  trial. 

The  trial  court  Instructed  the  jury,  as  a 
matter  of  law,  that  the  "stub  line,"  which 
Indnded  the  pole  already  described,  should 
be  deemed  a  part  of  the  defendant's  sys- 
tem, as  to  which  it  owed  to  plaintiff  the 
same  duty  as  to  Its  main  line,  and  "that  un- 
der the  evidence  in  this  case  the  plaintiff.  In 
fixing  the  bracket  in  question,  was  acting 
within  the  apparent  scope  of  his  authority." 
Dtfendant  assigned  many  specific  errors, 
which  were  properly  grouped  as  follows: 
That  the  oonrt  erred  In  the  admission  of 
certain  testimony;  that  the  evidence  esfhb- 
lished  that  the  pole,  the  falling  of  which 
caused  tbe  injury,  was  not  a  part  of  the  de- 
f aidant's  telephone  system;  that  the  repair 
of  the  bracket  was  not  within  the  scope  of 


plaintiff's  employment;  that  defendant  was 
free  from  negligence ;  that  the  injury  result- 
ed from  a  risk  assumed  by  plaintiff;  that 
plaintiff  was  guilty  of  contributory  negli- 
gence;  and  that  the  verdict  was  excessive. 

As  the  result  of  this  decision  must  be  an- 
other trial  of  the  action,  It  seems  proper  to 
state  fully  our  opinion  as  to  the  law  appli- 
cable to  the  facts  above  stated.  Upon  tbe 
trial  the  plaintiff  called  witnesses  to  testify 
as  to  tbe  character  and  durability  of  cotton- 
wood.  The  witness  Hughes  testified  to  his 
experience  in  using  cottonwood  for  poles  and 
fence  posts;  but  instead  of  expressing  his 
opinion  as  to  the  durability  and  life  of  such 
poles  or  posts,  he  was  permitted  to  state, 
against  the  defendant's  objection,  the  results 
which  be  observed  In  particular  instances  oc- 
curring In  his  experience.  Testimony  of  this 
character  often  appears  upon  cross-examina- 
tion, when  elldted  by  questions  designed  to 
test  the  knowledge  or  experience -of  the  wit- 
ness ;  but  it  never  should  be  permitted  to  be 
given  upon  the  examination  In  chief,  whm 
objection  Is  made.  With  this  exception,  we 
see  no  error  in  permitting  a  duly  qualified 
witness  to  express  his  opinion  as  to  fhe 
durability  of  the  wood. 

The  telephone  system  operated  by  defend- 
ant Included  the  branch  lines  serving  in- 
dividual subscribers;  but  its  liability  in  a 
particular  Instance  depends  upon  facts  to  be 
found  by  the  jury.  If  the  obligation  of  keep- 
ing this  particular  branch  line  in  repair 
rested  entirely  upon  Parsons,  or  his  neigh- 
bor to  the  west  or  both  of  them,  and  the 
plaintiff  had  knowledge  of  that  fact,  and  un- 
derstood and  believed  that  he  was  in  the 
employ  of  those  men,  rather  than  of  the  de- 
fendant and  that  the  defendant  In  employ- 
ing him,  was  acting  merely  as  the  agent  of 
Parsons  or  other  individuals,  It  Is  apparent 
that  the  relation  of  master  and  servant  did 
not  exist  between  the  plaintiff  and  defend- 
ant Upon  the  other  hand,  If  tbe  plalntUFs 
employment  was  by  the  defendant,  and  lila 
instructions,  reasonably  interpreted,  were 
that  he  was  to  locate  and  remedy  the  trouble, 
wherever  it  existed,  whether  upon  the  trunk 
or  a  branch  line,  the  defendant  cannot  avbld 
responsibility  by  showing  any  private  ar- 
rangement between  It  and  its  Individual  sub- 
scribers concerning  the  construction  or  main- 
tenance of  what  must  be  admitted  to  be  a 
necessary  part  of  the  entire  system  ot  lines 
and  poles. 

The  claim  as  to  the  scope  of  the  plalntifTs 
employment  is  very  similar.  The  officers  of 
the  defendant  only  knew  that  the  telephones 
were  not  operating  properly,  and  requested 
the  plaintiff  to  ascertain  the  cause  of  the 
difficulty  and  remedy  it  Parsons'  telephone 
operated  satisfactorily  after  the  renewal  of 
the  batteries.  Yet  the  condition  of  the  brack- 
et was  such  that  fresh  obstructions  to  the 
use  of  the  telephone  might  be  anticipated  in 
tbe  near  future.  Did  defendant  expect  that 
plalntlfl  would.  In  the  performance  of  this 


Digitized  by  VjOOQ  l€ 


1020 


122  NORTHWESTERN  REPORTER. 


<WlB. 


partlcnlar  employment,  repair  any  suclf  de- 
fect? Was  plaintiff  justified  In  so  under- 
standing bis  duties,  or  was  he  a  volunteer 
assisting  Parsons?  It  seems  to  us  that  these 
were  questions  for  the  Jury,  and  that  the 
trial  court  erred  In  holding,  as  a  matter  of 
law,  that,  the  defective  pole  was  an  appli- 
ance for  the  condition  of  which  the  defend- 
ant was  responsible  to  the  plalntlflT,  and,  fur- 
ther, in  charging  the  jury  that  the  worE  of 
repairing  the  bracket  was  within  the  ap- 
parent scope  of  plaintiff's  employment.  Our 
conclusion  Is  strengthened  by  the  statement 
of  the  respective  claims  of  the  parties  which 
the  court  made  In  Its  charge.  In  stating  the 
defendant's  position,  no  reference  was  made 
to  Its  claim  that  It  was  not  responsible  for 
the  condition  of  the  pole  which  caused  the 
Injury,  or  to  Its  further  claim  that  the  re- 
pairing of  the  braclcet  was  not  within  the 
scope  of  plaintiff's  employment  We  hold 
that  both  of  these  questions  should  have  been 
submitted  to  the  jury.  Had  this  been  done, 
the  evidence  was  sufficient  to. sustain  a  find- 
ing for  the  plaintiff. 

Under  the  evidence  in  this  case  It  cannot 
be  said  that  the  plaintiff  was  employed  to 
malce  a  general  inspection  of  the  defendant's 
telephone  system.  He  was  employed  to  locate 
the  defects  which  were  Interfering  with  the 
operation  of  the  line.  The  state  of  preserva- 
tion in  which  the  standing  poles  then  were 
was  a  matter  with  which  he  had  no  con- 
cern. The  plaintiff,  therefore,  was  justified 
in  assuming  that  the  poles  were  fit  for  the 
uses  to  which  they  were  applied,  and  he  was 
required  to  use  no  more  than  ordinary  care 
in  examining  the  pole  before  he  attempted  to 
nscend  it.  If  the  jury  found  the  pole  was, 
as  between  the  plaintiff  and  defendant,  in- 
cluded in  the  defendant's  system,  and  that 
the  repair  oi  the  bracket  was  within  the 
scope  of  plaintiff's  employment,  the  defend 
ant  would  properly  have  been  held  to  the 
duty  which  the  master  owes  the  servant  in 
furnishing  him  places  and  appliances  for 
his  work.  Where  the  place  or  appliance  Is 
constructed  of  material  liable  to  decay,  the 
duty  of  proper  inspection  is  also  upon  the 
master.  Kelly  v.  Erie  Telegraph  &  Tele- 
phone Ck>.,  34  Minn.  321,  25  N.  W.  706.  In 
this  case  the  admitted  condition  of  the  pole 
would  sustain  a  finding  that  defendant  was 
negligent,  if  the  jury  had  also  found  that 
the  pole  was  a  part  of  the  defendant's  sys- 
tem, and  that  the  repair  of  the  bracket  was 
within  the  scope  of  plaintiff's  employment 

The  court  properly  instructed  the  jury  as 
to  the  assumption  of  risk  by  the  plaintiff, 
and  the  claim  of  his  contributory  negligence. 
The  damages  were  not  so  excessive  as  to 
justify  interference  by  this  court;  but  for 
the  reasons  stated  the  order  refusing  a  new 
trial  cannot  be  sustained. 

Order  reversed,  and  new  trial  directed. 


ROACH  T.  SANBORN  LAND  CO. 
(Supreme  Court  of  Wisconsin.    Oct  26,  1909.) 

1.  Appeal  and  Ebbob  (|  1097*)— Law  of  thb 
Case. 

The  decision  of  the  Supreme  Court  on  ap- 
peal is  the  law  of  the  case  and  binds  the  parties 
on  a  subsequent  appeal,  whether  it  is  right  or 
wrong. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  8S  4358-1368;  Dec.  Dig.  f 
1097.«] 

2.  MoBTGAOES  (I  200*)— AoQuisrnow  of  Tax 
Title  bt  Mobtoagob. 

Expenditure  of  money  for  taxes  by  the 
holder  of  the  fee  title  is  deemed  a  payment  of 
the  taxes,  especially  as  against  a  mortgagee 
wbese  mortgage  requires  the  holder  of  the  equity 
of  redemption  to  pay  all  taxes,  and  the  grantee 
of  the  mortgagor  cannot,  as  against  the  mort- 
gagee, ascribe  such  payment  to  his  attitude  aa 
tax  title  claimant,  especially  where  his  tax  title 
is  void  as  a  title  and  effective  merely  as  a  lien. 
FEd.  Note.— For  other  cases,  see  Mortgages, 
Cent  Dig.  K  626-531 ;  Dec.  Dig.  S  200.*] 

8.  Taxation  (g  832*)— Patmeniv-Patment  bt 

Tax  Title  Claimant. 

Neither  St.  1898,  §  1210h,  providing  that 
plaintiff  entitled  to  a  judgment  setting  aside  a 
tax  sale  shall  pay  into  court  for  the  person 
claiming  under  the  tax  sale  the  amount  for 
which  the  land  was  sold  and  the  amount  paid 
by  such  person  for  taxes  levied  on  the  premises 
subsequent  to  the  sale,  with  interest,  nor  a  man- 
date of  the  Supreme  Court,  in  a  suit  by  the 
beneficial  bolder  of  a  trust  deed  to  set  aside  tax 
titles,  that  plaintiff  was  entitled  to  have  the 
tax  deeds  set  aside  on  payment  of  the  amounts 
for  which  the  lands  were  sold,  "as  well  as  the 
amounts  of  subsequent  taxes  paid  by  the  tax 
title  claimants,"  with  interest,  in  compliance 
with  the  statute,  issued  in  the  absence  of  any 
showing  that  any  taxes  had  been  paid  subse- 
quent to  the  commencement  of  the  suit,  or  that 
the  tax  title  claimant  claimed  reimbursement  of 
any  such  taxes,  requires  plaintiff  to  reimburse 
the  tax  title  claimant  for  any  payment  of  taxes 
made  after  the  commencement  of  the  suit. 

[EM.  Note. — For  other  cases,  see  Taxation, 
Cent  Dig.  {  1645;    Dec.  Dig.  8  832.*] 

4.  Appeal  and  Ebbob  ({  266*)  —  Questions 
Reviewable— Recobo. 

An  order  confirming  the  report  of  a  referee, 
who  ascertains  the  amount  plaintiff  suing  to 
set  aside  tax  deeds  should  pay  to  the  tax  title 
claimant  as  a  condition  of  setting  aside  tlie 
tax  deeds,  and  who  states  the  total  amount 
necessary  to  redeem  at  the  commencement  of 
the  suit,  and  also  the  amount  of  taxes  for  sub- 
sequent years  paid  by  the  tax  claimant,  involves 
the  merits  and  affects  the  judgment  for  plaintiff 
and,  under  St.  1898,  §  2898,  defining  the  judg- 
ment roll,  is  a  part  of  the  Judgment  roil  and  rec- 
ord, and  under  section  80(0,  authorizing  the  re- 
view of  intermediate  orders  on  appeal  from  a 
judgment,  it  may  be  reviewed  on  appeal  from  the 
judgment,  whether  excepted  to  or  not. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  f  266.*] 

5.  OosTB  (§  256*)— Costs  fob  Pbintinq  Case 
— Rules  of  Coubt. 

Under  Supreme  Court  rule  44  (108  N.  W. 
viii),  the  costs  for  printing  a  case  on  appeal 
which  does  not  comply  with  rule  6,  requiring 
the  case  to  contain  an  abridgment  (tf  the  record 
so  far  as  necessary  to  present  the  questions  for 
decision,  but  contains  pages  of  irrelevant  mat- 
ter, cannot  be  allowed. 

fEd.  Note.— For  other  eases,  see  Costs,  Cert. 
Dig.  (§  968-971;   Dec.  Dig.  S  256.*] 


•ror  otber  cases  tee  same  topic  and  section  NUMBBR  is  Dec.  &  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by  LjOOQIC 


WI«.) 


BOAOH  y.  SANBORN  LAND  CO. 


1021 


Appeal  from  Circuit  Court,  Forest  County ; 
John  Goodland,  Judge. 

Action  by  Leonard  H.  Roach  against  the 
Sanborn  Land  Gompafty.  From  a  judgment 
granting  Insufficient  relief,  plaintiff  appeals. 
Affirmed  and  remanded  for  further  proceed- 
ings. 

This  action,  commenced  In  November,  1902, 
asserted  plaintiff's  lien  by  virtue  of  the 
ownership  of  certain  notes  secured  by  a  trust 
deed  on  premises  In  Wisconsin,  and  claims 
against  the.  same  lands  by  virtue  of  certain 
tax  sales  and  deeds  held  by  various  defend- 
ants, and  sought  to  clear  the  title.  The  sev- 
eral answers  set  forth  that  all  said  tax 
rights  had  been  conveyed  to  the  Sanborn 
Land  Company,  and  that  it  owned  the  lands 
by  valid  tax  deeds.  Upon  a  previous  appeal 
it  was  settled  by  this  court  that  plaintiff's 
lien  upon  the  land  was  valid,  that  the  tax 
deeds  were  void,  and  that  plaintiff  was  en- 
titled to  have  said  deeds  set  aside  upon  pay- 
ment of  the  amounts  for  which  the  lands 
were  sold  "as  well  as  the  amounts  of  subse- 
quent taxes  paid  by  the  tax  title  claimants," 
with  interest  at  16  per  cent,  in  compliance 
with  section  I210h,  St.  1898.  Roach  v.  San- 
bom  Land  Co.,  135  Wis.  354,  115  N.  W.  1102. 
After  remittitur,  the  several  amounts  for 
which  the  lands  were  sold  and  for  all  taxes 
subsequently  paid  thereon  up  to  and  Including 
those  for  the  year  1907  were  ascertained 
upon  reference,  and  the  amount  thereof,  with 
15  per  cent  Interest  $3,575.46,  was  required 
to  be  paid  'ob  a  condition  of  judgment  setting 
aside  defendants'  tax  deeds.  It  appeared 
that  in  November,  1902,  shortly  before  the 
commencement  of  the  suit,  the  defendant  San- 
bom  Land  Company,  the  holder  of  the  tax 
deeds,  acquired  the  fee  title  to  the  equity  of 
redemption  by  mesne  conveyances  from  the 
grantors  in  the  trust  deed,  which  by  the  way 
contained  the  usual  covenants  for  payment 
of  taxes.  Since  said  time  the  claims  under 
the  tax  deeds  and  the  equity  of  redemption 
have  been  in  the  same  party,  by  whom  the 
taxes  have  been  paid.  It  was  found  by  the 
referee  that  on  November  15,  1902,  before 
suit  plaintiff  had  tendered  to  the  county 
clerk  an  amount  more  than  sufficient  to  re- 
deem all  of  said  tax  liens  then  existing,  to- 
gether with  interest  and  charges  thereon. 
Plaintiff  paid  to  the  clerk  of  court  under 
protest  the  said  amount  of  taxes  and  interest 
whereupon  judgment  was  entered  cancel- 
ing the  tax  deeds  and  barring  defendants 
from  any  claim  under  them.  .After  judg- 
ment an  order  was  entered  to  pay  defendant 
Sanborn  Land  Company  all  the  money  so  de- 
posited upon  its  filing  t)ond  conditioned  on  re- 
payment of  any  sum  that  may  hereafter  final- 
ly be  determined  should  be  returned  to  the 
plaintiff.  This  appeal  Is  taken  from  the 
Judgment  by  plaintiff. 

Samuel  Shaw,  for  appellant  Sanborn,  La- 
moreux  &  Fray  and  A.  W.  Sanborn,  for  re- 
spondent 


DODGE,  J.  (after  stating  the  facts  as 
above).  The  appellant's  principal  contention 
upon  this  appeal  is  that  the  defendant,  who 
held  the  ostensible  tax  titles  on  the  mortgaged 
property,  having  acquired  the  fee  title,  which 
was  burdened  with  the  duty  of  paying  all 
taxes,  is  not  entitled  to  receive  anything  as  a 
condition  of  declaring  plaintiff's  mortgage  in- 
terest free  from  the  defendant's  tax  Hens. 
That  contention  is,  however,  in  contradiction 
of  the  express  decision  of  this  court  upon 
the  former  appealto  the  effect  that,  as  a  con- 
dition of  canceling  those  tax  deeds,  plaintiff 
should  repay  the  cost  and  taxes  with  15  per 
cent  Interest  That  decision  Is  the  law  of 
the  case,  and  must  control,  whether  right 
or  wrong.  Cole  v.  Clarke,  8  Wis.  323;  Mc- 
Oord  V.  HUl,  117  Wis.  306,  94  N.  W.  65;  State 
▼.  Wis.  Cent  Ry.  Co.,  133  Wis.  478,  113  N. 
W.  952;  Steele  v.  Kom,  137  Wis.  51,  120 
N.  W.  261. 

It  iB  also  claimed,  however,  that  the  order 
of  the  trial  court  went  further  than  required 
by  this  mandate,  for  that  the  latter  only 
commands  that  there  shall  be  paid  all  "sub- 
sequent taxes  paid  by  the  tax  title  claim- 
ants," and  that  taxes  paid  after  November, 
1902,  by  the  Sanborn  Land  Company,  when 
it  held  the  fee  title  subject  to  a  duty  to  pay 
taxes,  cannot  be  deemed  to  have  been  paid  by 
It  as  the  tax  title  claimant  although  it  also 
held  certain  tax  liens.  But  the  order  for 
payment  includes  those  subsequent  taxes. 
We  see  no  escape  from  this  contention  of 
plaintiff.  The  law  is  well  settled  that  ex- 
penditure of  money  for  taxes  by  the  holder 
of  the  fee  title  will  be  deemed  a  payment  of 
the  tax,  and  especially  so  as  against  a  mort- 
gagee whose  mortgage  requires  the  holder  of 
the  equity  of  redemption  to  pay  all  taxes.  In 
such  case  the  owner  of  the  equity  of  re- 
demption cannot  be  allowed,  as  against  the 
mortgagee,  to  ascribe  such  payment  to  his 
attitude  as  piT  title  claimant,  e^)eclally 
where  the  tax  title  is  void,  as  a  title,  and 
effective  merely  as  a  lien.  Smith  v.  Lewis, 
20  Wis.  350,  354;  Avery  v.  Judd,  21  Wis. 
262 ;  HUl  v.  Bufflngton,  106  Wis.  525,  535,  82 
N.  W.  712 ;  Allen  v.  Allen,  114  Wis.  615,  630, 
91  N.  W.  218.  This  would  be  the  measure  of 
the  legal  rights  of  the  parties  under  section 
1210h,  St  1898,  and  it  Is  not  to  be  presum- 
ed that  the  mandate  of  this  court  was  in- 
tended to  extend  any  further.  In  the  ab- 
sence of  clear  and  unambiguous  language. 
At  the  time  of  the  former  decision  there  had 
been  no  showing  that  any  taxes  had  been 
paid  subsequent  to  the  commencement  of  the 
suit  in  November,  1902,  or  that  the  defend- 
ant claimed  reimbursement  of  any  such  taxes, 
and,  while  the  court  was  Informed  of  the  fact 
that  the  fee  title  had  been  acquired  by  the 
Sanborn  Land  Company,  and  might  have  in- 
ferred that  probably  somebody  had  paid  tax- 
es between  1902  and  April,  1908,  when  the 
decision  in  this  court  was  rendered,  yet  in 
the  absence  of  assertion  of  any  such  claim, 
there  Is  no  necessary  implication  that  the 


Digitized  by  LjOOQ  l€ 


1022 


122  NORXHWBSTBBN  BBPORTEB. 


(Wis. 


words  of  the  mandate  were  Intended  to  In- 
clude sobseqaent  taxes  paid  by  the  bolder  of 
the  fee  title.  We  therefore  conclude  that  the 
plalQtlff  was  not  required,  either  by  section 
1210h  or  by  the  mandate  on  former  appeal, 
to  reimburse  the  defendant  for  any  payment 
of  taxes  made  after  the  commencement  of 
the  suit,  and  that  the  order  requiring  it  Is 
erroneous. 

Respondent  protests  that  any  error  In  this 
regard  Is, excluded  from  consideration  on  this 
appeal  by  failure  of  the  plalntitf  to  reserve 
any  exceptions  or  to  set&e  a  bill  of  excep- 
tions containing  all  the  evidence.  These 
omlssiohs  exist,  and  have  occasioned  us  much 
embarrassment  We  think,  however,  that  the 
record  discloses  the  error,  although  perhaps 
not  In  Its  exact  extent  The  report  of  the 
referee,  which  Is  part  of  the  record,  express- 
ly states  that  In  the  sum  of  |3,576.46,  found 
to  be  due  the  defendant  up  to  July  8,  1908, 
Is  Included  all  taxes  for  the  years  1895  to 
1907;  also,  that  the  total  amount  necessary 
to  redeem  on  November  16,  1902,  was  only 
$1,486.91.  The  Older  of  the  court  Is  express- 
ly founded  upon,  and  confirms  and  adopts,  the 
report  of  the  referee.  This  order  Is  one  ob- 
viously Involving  the  merits,  and  which  nec- 
essarily affects  the  Judgment,  and  therefore, 
by  virtue  of  section  2898,  St.  1898,  Is  part  of 
the  Judgment  roll  and  of  the  record,  and  by 
virtue  of  section  3070,  St  1898,  may  be  re- 
viewed upon  appeal,  whether  excepted  to  or 
not  The  facts  foimd  are  not  questioned,  but 
merely  the  conclusion  of  law,  reviewable 
without  exception.  It  clearly  appears  from 
the  record  therefore  that  the  appellant  was 
erroneously  compelled  to  pay  the  amount  of 
all  taxes  assessed  for  the  years  1902  to  1907, 
inclusive,  with  15  per  cent,  interest  thereon 
up  to  the  16th  of  December,  1908.  The 
amount  thereof  must  be  ascertained  and  re- 
funded to  appelant  with  6  per  cent,  interest 
from  the  date  when  respondent  received  the 
same,  apparently  March  6,  1909.  This  can 
probably  be  best  accomplished  by  a  direct 
order,  when  the  amount  is  ascertained,  com- 
manding the  repayment,  enforceable  either 
under  the  contempt  powers  of  the  court  or  by 
authorizing  suit  upon  the  bond  filed  by  re- 
spondent. This  can  probably  be  done  with- 
out disturbing  the  Judgment,  which,  after 
such  repayment  is  accomplished,  correctly 
adjudicates  the  rights  of  the  parties. 

The  printed  case  on  this  appeal  is  in  no 
sense  a  compliance  with  rule  6  (108  N.  W. 
vi),  requiring  it  to  contain  "an  abridgment 
of  the  record  so  far  as  necessary  to  present 
the  questions  for  decision."  It  contains 
many  pages  of  wholly  Irrelevant  matter  by 
no  means  necessary  or  pertinent  to  the  ques- 
tions brought  up  on  appeal,  and  It  fails  to 
contain  many  essential  parts  of  the  record, 
whereby  this  court  has  been  driven,  at  the  ex- 
pense of  much  time  and  labor,  to  a  search 
through  the  manuscript  record.    Rule  44  (108 


N.  W.  vlU)  prohibits  the  allowance  of  costs 
for  such  case. 

Judgment  affirmed,  and  cause  remanded 
for  further  proceedmgs  In  accordance  with 
this  optolon.  Appellant  to  recover  costs,  ex- 
cept for  printing  case. 


DONOVAN  V.  STATB. 
(Supreme  Court  of  Wisconsin.    Oct  26,  1909.) 

Rapk  (J  64*) — EvinEiTCB— CoaaoBOBATioN. 

Where,  on  a  trial  for  rape,  the  evidence  of 
the  prosecutrix,  who  is  feeble-minded,  is  in- 
trinsically improbable  and  almost  incredible, 
there  must  be  corroboration  by  other  evidence 
as  to  the  principal  facta  to  sustain  a  convic- 
tion. 

[E}d.  Note.— For  other  cases,  see  Rape,  Cent. 
Dig.  U  83,  84;    Dec.  Dig.  {  54.*] 

Error  to  Circuit  Court,  Jefferson  County: 
George  Orimm,  Judge. 

Charles  Donovan  was  convicted  of  rape, 
and  he  brings  error.  Reversed,  and  remand- 
ed for  new  trIaL 

Oustav  Buchhelt  (Kronshage,  HcGovern. 
Coff,  Fritz  &  Hannan,  of  counsel),  for  plain- 
tiff In  error.  F.  L.  Oilbert,  At^.  Gen.,  F. 
T.  Tucker,  Asst  Atty.  Gen.,  and  R.  W.  Lueck, 
Dlst  Atty.,  for  the  State. 

WINSLOW,  a  J.  It  is  not  believed  that 
any  good  purpose  would  be  served  by  a  re- 
cital of  the  testimony  In  this  case.  The 
plaintiff  In  error  was  convicted  of  rape. 
The  crime  was  charged  to  have  been  com- 
mitted June  1,  1906,  upon  the  person  of  one 
Elsie  Weichert,  who  was  then  under  14 
years  of  age  and  was  adjudged  a  feeble- 
minded person  before  the  trial.  The  con- 
viction was  based  upon  the  uncorroborated 
testimony  of  the  prosecuting  witness  alone, 
and  her  story  was  intrinsically  improbable 
and  almost  incredible.  Under  these  circum- 
stances the  conviction  cannot  be  sustained. 
The  rule  In  such  cases  Is  that  "where  the 
evidence  of  the  prosecuting  witness  bears 
upon  its  face  evidence  of  unreliability,  to 
sustain  a  conviction  there  should  be  corrobo- 
ration by  other  evidence  as  to  the  principal 
facts  relied  on  to  constitute  the  crime." 
O'Boyle  v.  State,  100  Wis.  296,  75  N.  W.  980: 
Hofer  V.  Stote,  130  Wis.  576»  110  N.  W.  391. 
Especially  must  this  rule  be  held  applicable 
In  a  case  where  the  prosecuting  witness  Is  a 
person  of  feeble  mind. 

Judgment  reversed,  and  action  remanded 
for  a  new  trial. 


MoPHEBSON  T.  GREAT  NORTHERN 

RY.  CO. 

(Snpreme  Court  of  Wisconsin.    Oct  26,  1909.) 

1.  Masteb  and  Servant  (i  213*) — Irjust  to 
Sebvant— AsstruFTiov  ov  Risk. 

An  employe  repairing  a  bridge  which  h« 
knew   was  unusually  hazardous  woA   because 


•For  other  exe*  u*  lam*  topic  and  aactlon  NUMBER  In  Dec.  *  Am.  Dlga.  1S07  to  tat»,  *  Revortat  ladcsM 


Digitized  by  LjOOQIC 


wis.). 


OITT  OF  BUPBRIOB  t.  DOUGLAS  COUNTY  I'ELBPHONE  OO. 


1023 


of  the  conatantly  changing  conditions  assumea 
all  risks  oidinanly  ptesent  in  mch  danserons 
operations. 

[Ed.  Note.— For  other  cases,  tie  Master  and 
Servant,  Cent  Dir.  g{  559-564;  Dec.  Dig.  g  213. •] 
2.  Mabteb  ard  Sbbtaht  ({  236*)— Injubt  to 

SbBVANT— CONTBIBXnWBT  Nbouoenck. 
An  employe  repairing  a  railroad  bridge, 
who,  while  working  nnder  the  track,  reached 
ap  and  placed  his  nand  on  the  track  without 
looking  for  the  approach  of  a  push  car  which 
he  knew  might  pass  with  materials  at  any  time, 
was  guilty  of  negligence,  preventing  recovery 
for  injuries  to  his  hand  by  the  car. 

[Bd.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  |  739 ;   Dec.  Dig.  I  236.*] 

Appeal  from  Circuit  Conrt,  Douglas  Coun- 
ty;   A.  J.  Vlnje,  Judge. 

Action  for  personal  Injuries  by  Charles 
R.  McPherson  against  the  Great  Northern 
Railway  Company.  Defendant  had  juag- 
ment,  and  plaintiff  appeals.    Affirmed. 

Action  for  personal  Injuries.  The  facts 
were  not  materially  In  controversy.  In 
July,  1908,  the  Kelley-Atklnson  Company 
were  engaged  in  repairing  the  draw  span  of 
the  Interstate  bridge  between  Superior  and 
Dnluth,  wblch  had  been  wrecked  two  years 
previously.  The  draw  span  had  been  raised 
from  the  water  and  rested  upon  the  central 
pier  at  right  angles  with  the  remainder  of 
the  bridge,  and  the  Kelley-Atkinson  Company 
Iiad  been  for  about  two  months  at  work  re- 
pairing and  restoring  tiie  Iron  and  steel  work. 
To  carry  material  from  one  place  to  another 
on  the  bridge  the  company  had  constructed 
a  railroad  track  of  ordinary  width  in  the  mid- 
dle of  the  span,  and  from  one  end  of  It  to 
the  other,  on  which  a  push  car  8  feet  long 
and  2i/!t  feet  high  was  shoved  by  the  em- 
ployes as  occasion  required.  The  ties  on 
which  the  track  rested  were  some  six  or 
seven  feet  apart  About  the  center  of  the 
span,  and  by  the  side  of  the  track  (but  three 
or  four  feet  below  it),  was  a  platform  of 
planks,  15  or  20  feet  long,  laid  between  two 
girders  8  feet  apart,  which  formed  a  kind 
of  a  large  box  in  which  tbe  employes  of  the 
construction  company  kept  most  of  their 
tools  and  some  gearings  and  wooden  blocks, 
eta  The  plaintiff  was  a  steel  worker,  and 
was  employed  by  the  construction  company 
in  the  repair  work  for  several  weeks  before 
the  3d  of  July,  1908,  and  Icnew  all  about  the 
track  and  the  use  of  the  car.  Two  or  three 
days  before  the  last-named  date  a  gang  of 
six  carpenters  was  put  to  work  on  the  draw 
span  by  the  defendant,  placing  new  wood- 
work between  the  rails  of  the  street  railway 
track  on  the  span.  The  timber  which  this 
gang  were  to  use  was  placed  at  one  end  of 
the  bridge,  and,  in  order  to  remove  a  part 
of  it  to  the  other  end,  two  of  the  carpenters, 
by  direction  of  their  foreman,  loaded  a  quan- 
tity on  the  push  car  and  began  to  shove  the 
push  car  towards  the  other  end,  bending  for 
ward  as  they  walked  and  stepping  on  the 
iron  rail,  because  the  ties  were  so  far  apart. 


In  this  position  they  could  not,  and  did  not 
look,  ahead.  Itiis  was  on  the  3d  of  July, 
1906,  at  about  11  o'clock  a.  m.  The  plaintiff 
was  on  the  bridge  at  the  time,  near  the  cen- 
ter, and  just  before  the  car  started  saw  that 
a  portable  forge  had  been  upset  so  that  some 
fire  had  started  in  the  timbers  and  wood  in 
the  toolbox,  and  he  got  down  in  the  box 
and  stood  on  a  gearing  and  began  throwing 
the  burning  wood  out  of  the  box  into  the 
bay.  As  he  did  this,  he  took  bold  of  the  rail 
of  the  push-car  track  with  bis  left  hand.  He 
was  facing  the  track,  but  paid  no  attention 
to  it,  nor  did  he  look  to  see  whether  a  car 
was  coming.  While  he  was  in  this  situation, 
the  car  was  pushed  along  the  track  over  his 
hand,  inflicting  injuries  which  laid  him  up 
for  several  weeks.  A  verdict  for  the  defend- 
ant was  directed,  and  the  plaintiff  appeals. 

Victor  Unley.  for  appellant  J.  A.  Mur- 
phy, for  respondent 

WINSLOW,  C.  J.  (after  stating  the  facts 
as  above).  It  is  evident  from  the  state- 
ment of  facts  that  a  verdict  for  the  defend- 
ant was  properly  directed.  The  plaintiff  was 
engaged  In  nnusually  hazardous  building  and 
repairing  operations,  where  he  knew  that 
conditions  were  constantly  changing,  and  he 
assumed  all  the  risks  ordinarily  present  In 
such  dangerous  operations.  Kath  v.  Wis. 
Cent  Ry.  Co.,  121  Wis.  508,  99  N.  W.  217. 
He  knew  that  the  push  car  was  liable  to  be 
used  at  any  time.  He  testifies  that  he  knew 
that  his  gang  was  not  using  it  at  the  time, 
but  the  testimony  is  undisputed  thut  any 
gang  that  happened  to  be  at  work  on  the 
bridge  and  found  the  use  of  the  car  helpful 
w^as  free  to  use  it  The  plaintiff  knew  that 
the  carpenter  gang  was  at  work  on  the 
bridge,  and  knew  that  they  had  a  quantity  of 
bulky  material  there  which  must  necessarily 
be  distributed  along  the  bridge. 

Under  these  circumstances,  we  think  It 
clear  that  he  was  negligent  in  grasping  the 
rail  as  he  did  without  looking  to  see  whether 
the  car  was  in  uRe  or  not 

Judgment  affirmed. 


CITT  OF  SUPERIOR  v.  DOUGT.AS  COUN- 
TY  TELEPHONE  CO.  et  al. 

(Supreme  Conrt  of  Wisconsin.     Oct  6,  1909. 
Dissenting  Opinion  Oct  21,  1909.) 

1.  Telegbaphs  and  Teixphoncs  (S  3-*)  — 

CONTBACT  FOB  TELEFEOHE   SKBVICS— VALID- 
ITY. 

Where  there  was  as  offer  by  a  telephone 
company  operating  in  a  city  to  render  service  to 
the  city  which  the  city  could  receive  for  the 
use  of  its  officers  in  the  public  business  and 
for  the  convenience  of  the  public,  in  exchange 
for  a  privilege  of  value  which  the  city  could 
and  did  grant  subject  to  legitimate  conditions, 
which  were  accepted  by  the  company,  a  valid 


•vor  othar  cua  «ee  (ame  toplo  and  sactton  NUHBBR  in  Dec.  *  Am.  Digs.  1907  to  data,  A  Reporter  Indexn 


Digitized  by  VjOOQ  l€ 


1024 


122  NORTHWESTERN  REPORTER. 


(Wis. 


contract  between  the  company  and  the  cltj  waa 
made. 

[Ed.   Note.— For  other  cases,  see  Telegraphs 
and  Telephones,  Dec  Dig.  {  32.*] 

2.  Municipal  Oobpora.tion8  ({  244*)— <3on- 

TBACTS— VAUDITT. 

Where  a  contract  made  by  a  city  did  not 
contemplate  any  pecuniary  liability  on  the  part 
of  the  city,  the  charter  provisions  ^verning  the 
manner  of  making  contracts  imposing  pecuniary 
liability  were  immaterial  in  determining  the  ya- 
lidity  of  the  contract. 

[E<d.   Note.— For  other  cases,   see   Municipal 
Corporations,  Dec.  Dig.  {  244.*] 

3.  Teleobaphs  and  Telephones  (|  32*)  — 
contbactb  fob  telephone  service— valid- 
ITY. 

The  right  of  a  telephone  company  opera- 
ting in  a  city  to  give  its  general  customers  facil- 
ities for  commanication  by  telephone  with  the 
public  offices  of  the  city  renders  the  service  it 
offers  to  its  general  customers  more  valuable, 
and  the  granting  by  the  city  of  the  right  to 
maintain  telephones  in  its  public  offices  operates 
to  expedite  public  business,  so  that  such  a 
right  is  a  legitimate  basis  for  a  contract  be- 
tween the  company  and  the  city,  and  the  grant 
of  such  a  right  may  be  so  valuable  to  the  com- 
pany as  to  be  a  fair  equivalent  for  the  service 
to  the  city  offices  without  any  direct  pecuniary 
compensation  therefor. 

[Ed.  Note. — For  other  cases,   see  Telegraphs 
and  Telephones,  Dec.  Dig.  i  32.*] 

4.  Fbanchises  (I  2*)— Acceptance. 

In  the  absence  of  any  statute  requiring  a 
different  acceptance  of  a  franchise  or  privilege 
granted  by  a  city,  a  written  acceptance  there- 
of subject  to  the  conditions  imposed  is  tinnec- 
essary,  and  the  actual  enjoyment  of  the  privi- 
lege is  a  sufficient  acceptance  to  create  con- 
tractual obligations. 

[Ed.  Note.— For  other  cases,  see  Franchises, 
Dec.  Dig.  t  2.*] 

5.  Telegraphs  and  Telephones  (f  32*)  — 
Granting  or  Privilege  to  Telephone  Com- 
panies—Validity. 

A  city  and  a  telephone  company  may  con- 
tract for  telephone  service  in  the  city  offices  in 
the  city  buildmg  and  .in  the  public  library  build- 
ing. 

[Ed.  Note.— For  other  cases,  see  Telegraphs 
and  Telephones,  Dec.  Dig.  8  32.*] 

6.  Contracts  (S  22*)— Offer- Acceptance. 

An  offer  on  one  side  may  be  accepted  by 
unqualified  performance  on  the  other,  in  case 
the   offer  does   not   otherwise   require. 

[Ed.   Note. — For   other  cases,   see  Contracts, 
Cent  Dig.  {  75;   Dec.  Dig.  §  22.*] 

7.  Telegraphs  and  Telephones  ({  32*)  — 
Contracts  with  Telephone  Companies  — 
Validity. 

A  contract  binding  a  telephone  comp&ny 
operating  in  a  city  to  maintain  telephones  in  the 
public  offices  in  the  city  building  and  in  the 
public  library  building,  without  cost  to  the  city, 
entered  into  at  a  time  there  was  no  statute  pro- 
hibiting the  company  from  granting  the  city  a 
different  rate  for  service  than  general  custom- 
ers, is  not  invalid  because  creating  an  unjust 
discrimination. 

[Ed.   Note.— For  other  cases,  see  Telegraphs 
and  Telephones,  Dec.  Dig.  §  32.*] 

8.  Constitutional  Law  (J  121*)  —  Obliga- 
tion of  CoNTBACTS— Impairment. 

A  contract  binding  a  public  service  corpora- 
tion to  render  certain  services,  valid  when 
made,  is  within  the  constitutional  provision 
against  the  impairment  of  obligations  of  con- 
tracts, and  the  public  utility  law  (Laws  1907, 
p.  448,   c.  499  [St.   1S08,   i   17»7m91])   recog- 


nices  the  existence  of  valid  contracts  between 
pnblic  service  corpontions  and  ciutoment. 

[Ed.  Note.— For  other  cases,  see  Constitotion- 
al  Law,  Dec.  Dig.  {  121.*] 

9.  Corporations  (|  449*)— Contbactb— Dis- 
criminations—Unjust    Discriminations. 

In  the  absence  of  any  statute  on  the  sab- 
ject,  a  public  service  corporation  may  make  a 
different  rate  to  one  person  than  to  another, 
or  accept  pay  from  one  on  a  money  rate  and 
from  another  in  service  of  a  legitimate  char- 
acter, or  some  other  reasonable  equivalent,  so 
long  as  the  compensation  demanded  is  within 
reason  under  the  circumstances,  for  only  unjust 
discriminations  are  condemned  at  common  law. 
[Ed.  Note.— For  other  cases,  see  Corporatioiu, 
Dec.  Dig.  {  449.*] 

10.  Contracts  (|  108*)— Public  Policy. 
The  validity  of  a  contract,  sanctioned  by 

pnblic  policy  when  made,  is  not  affected  by  a 
change  in  public  policy  by  legislative  act  or 
otherwise. 

[Ed.   Note.— For  other  cases,  see  Contracts, 
Dec.  Dig.  {  108.*] 

11.  Contracts  (|  108*)— Validitt— Public 
Policy. 

Public  policy  as  bearing  on  the  judicial  en- 
forceability of  contracts  is  that  principle  which 
maintains  that  a  person  cannot  rightfully  do 
or  bind  himself  to  do  that  which  is  inimical  to 
the  public  good,  and  hence  a  contractual  situa- 
tion not  clearly  within  the  principle  condemn- 
ing it  cannot  be  said  to  be  illegitimate  merely 
because  there  is  discrimination. 

[Ed.    Note.— For  other  cases,   see  Contracts, 
Cent.  Dig.  S|  498-503;    Dec  Dig.  t  108*] 

12.  Contracts  (S  108*)  —  Validity  —  Public 
Policy. 

Discriminatory  contracts  between  public 
utility  corporations  and  their  patrons  which 
are  void,  as  inimical  to  the  public  good  are  void 
because  unreasonable  advantage  is  thereby  given 
to  one  customer  or  a  class  over  others,  as  all 
have  a  moral  and  legal  right  to  equality  of 
trentment. 

[Ed.   Note.— For  other  cases,  see  Contracts, 
Dec  Dig.  {  108.*] 

13.  Contracts  (|  108*)  —  Validity  —  Public 
Policy. 

A  contract  l>etween  a  public  utility  cor- 
poration and  the  state  or  a  public  corporation 
which  gives  the  state  or  public  corporation  ad- 
vantage over  general  customers  inures  to  the 
benefit  of  the  state  or  public  corporation  in  the 
a^regate,  and  is  not  discriminatory,  and  is  not 
violative  of  public  policy. 

[Ed.   Note.— For  other  cases,   see  Contracts, 
Dec.  Dig.  t  108.*] 

14.  Telegraphs  and  Telephones  (|  32*)— 
Contracts  for  Telephone  Seb vice— Valid- 
ity. 

A  contract  binding  a  telephone  company 
operating  in  a  city  to  maintain,  without  charge, 
telephones  in  the  public  offices  of  the  city,  is 
not  invalid  as  contrary  to  pnblic  policy,  for 
the  advantage  Is  to  the  pnblic 

[Ed.  Note.— For  other  cases,  see  Telegraphs 
and  Telephones,  Dec.  Dig.  t  32.*] 

15.  Contbactb  (J  9*)— Ckbtaikty— Dubation. 
The  duration  of  a  contract  may  be  made 

dependent  on  the  expiration  of  a  period  of  time 
or  on  the  completion  of  a  given  undertaking  or 
the  happening  of  some  event,  all  of  which  in 
turn  may  be  certain  or  uncertain  as  to  the  date 
when  the  undertaking  may  be  completed  or 
the  event  may  happen,  and  this  uncertainty  does 
not  render,  the  contract  terminable  at  will. 

[Ed.    Note.  -For   other  cases,   see   Contracts, 
Dec.  Dig.  i  It.*] 


•For  otber  cases  see  tame  topic  and  section  NUMBER  la  Dec.  &  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by 


L-oogle 


wis.) 


CITY  OP  SUPBBIOE  t.  DOUGLAS  COUNTY  TELEPHONE  CO, 


1025 


16l  Contbacts  (i  9*}— Cbbtaintt— Dttbation. 
A  contract  binding  a  telephone  company 
operating  in  a  city  to  maintain,  without  charge, 
telephones  in  the  public  offices  of  the  city  so 
long  as  it  maintains  and  operates  a  telephone 
ez(£ange  in  the  city,  fixes  a  time  for  its  termina- 
tion, and  the  contract  is  binding  according  to 
its  terms. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Dec.  Dig.  i  ».•] 

17.  Appbai.  and  Ebbob  ({  1078*)— Qcebtions 
Reviewable— Waiveb  of  Questions. 

Where,  on  appeal  from  an  order  denying  a 
temporary  injunction  and  sustaining  a  demur- 
rer to  the  complaint,  no  question  is  raised  as  to 
whether  the  complaint  falls  within  some  recog- 
nized head  of  equity  jurisprudence,  the  court 
will  sot  consider  such  question,  but  It  will  be 
deemed .  that  the  parties  waived  It. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error.  Cent.  Dig.  H  4256-4261;  Dec  Dig.  { 
107&<J 

18.  ACTIOH  (I  50*)  — Joindbe  — Pabtieb  Iw- 
VOLVED— Statutes. 

The  statutory  action  created  to  enable  one 
aggrieved  by  an  order  of  the  Railroad  Commis- 
sion by  action  against  the  commission  to  chal- 
lenge the  validity  of  its  order  may  not  be  join- 
ed with  another  action  against  a  third  person 
to  prevent  the  latter  from  complying  with  the 
order  of  the  commission,  notwithstanding  St. 
1808,  {  2647,  authorising  the  joinder  of  causes 
of  action. 

[Ed.  Note.— For  other  cases,  see  Action,  Dec. 
Dig.  I  60.*] 

19.  Pleading  (§   193*)— Complaint— Demub- 
beb— liuitationb. 

Where  the  complaint  was  based  on  a  wrong- 
ful Older  of  the  Railroad  Commission  entered 
October  14,  1008,  and  did  not  show  that  such 
order  was  not  an  original  order,  the  complaint 
was  not  demurrable  because  such  order  was 
based  on  a  prior  order  in  favor  of  which  the 
limitation  of  time  to  question  its  validity  under 
St.  1898,  t  1797m65,  as  added  9y  Laws  1907, 
p.  467,  c  499,  expired  before  the  commencement 
of  the  action. 

'[Ed.  Note.— For  other  cases,  see  Pleading, 
Dec  Dig.  I  193.*] 

Marshall  and  Barnes,  JJ.,  dissenting  in  part. 

Appeal  from  Circuit  Court,  Dane  County; 
E.  Ray  Stevens,  Judge. 

Action  by  the  City  of  Superior  against  the 
Douglas  County  Telephone  Company,  and 
B.  H.  Meyer  and  others,  constituting  the 
Railroad  Commission  of  Wisconsin.  From 
an  order  denying  a  temporary  Injunction  and 
Bustalnlng  a  general  demurrer  to  the  com- 
plaint and  sustaining  a  special  demurrer  in- 
terposed by  the  Railroad  Commission,  plain- 
tiff appeals.  Reversed  In  part,  and  affirmed 
in  part. 

Action  to  enjoin  defendant  telephone  com- 
pany from  discontinuing  maintenance  of 
telephones  in  plaintiff's  city  and  public  li- 
brary buildings  under  the  agreement  to  do 
so  free  of  charge  to  it  pursuant  to  which  they 
were  placed  therein,  and  nullify  action  of  the 
State  Railroad  Commission  requiring  such 
discontinuance. 

The  complaint  is  to  this  effect:  About 
May,  1904,  plaintiff  and  defendant  telephone 
company  made  an  agreement  whereby  the 
former  extended  to  the  latter  the  privilege 


of  placing  one  telephone  in  each  of  eleven  of 
the  former's  departments  in  its  city  building 
and  one  in  its  public  library  building  and 
promised  to  maintain  the  same  so  as  to  af- 
ford telephone  communication  between  the 
company's  patrons  and  such  public  officers, 
making  all  changes  in  such  buildings  neces- 
sary to  the  proper  Installation,  and  continue 
the  facilities  for  telephone  communication 
thus  (Seated  during  the  life  of  the  agreement 
and,  in  consideration  of  such  privilege  and 
the  advantage  to  such  company  thus  created 
of  making  Its  service  more  desirable  to  ex- 
isting patrons  and  so  to  retaining  their  pat- 
ronage and  gaining  new  customers  upon  the 
faith  of  such  increased  scope  of  service^  it 
agreed  to  accept  the  privilege  as  granted 
with  the  condition  affixed  thereto  that  tele-' 
phone  service  should  be  first-class  at  all 
times  and  be  continued  so  long  as  the  com- 
pany should  maintain  and  operate  a  tele- 
phone system  In  the  city.  The  company  duly 
performed  by  installing  and  maintaining  the 
telephones  and  full  performance  on  both 
sides  was  continued  down  to  the  commence- 
ment of  this  action,  when  such  performance, 
on  the  part  of  the  company,  was  about  to 
be  interrupted,  and  could  only  be  prevented 
by  judicial  Intervention,  because,  October  14, 
1908,  defendant  Railroad  Commission,  basing 
Its  action  on  the  law  of  1907  (Laws  1907,  p. 
448,  c.  499)  creating  such  commission,  order- 
ed the  company.  In  disregard  of  its  agree- 
ment, which  was  in  full  force  at  the  time 
such  legislation  took  effect,  to  discontinue 
performance.  The  company,  pursuant  to 
such  order,  notified  plaintiff  that  it  would 
cease  performance  of  its  agreement  after  No- 
vember 10,  1008.  The  agreement  contemplat- 
ed substantial  benefits  to  the  telephone  com- 
pany as  consideration  for  performance  of  Its 
obligation,  which  t>enefits  have  in  fact  been 
enjoyed  while  some  Injury  has  been  caused 
to  plaintlfTs  property  by  reason  of  changes  lu 
its  buildings  necessarily  made  In  the  course 
of  Installing  the  telephones,  and  some  benefit 
has  accrued  to  the  public.  The  discontinu- 
ance of  the  telephone  service  and  removal  ot 
the  telephones  will  inflict  a  substantial  in- 
jury to  plaintiff  by  reason  of  consequent  nec- 
essary repairs.  Appropriate  relief  was  pray- 
ed for.  A  motion  on  behalf  of  the  plaintiff 
for  a  temporary  injunction  was  denied.  The 
Railroad  Commission  demurred  to  the  com- 
plaint for  insufficiency  and  the  same  was  sus- 
tained. Both  determinations  were  closed  by 
a  single  order  from  which  this  appeal  was 
taken. 

Thos.  E.  Lyons  and  T.  L.  Molntosh  for  ap- 
pellant F.  L.  Gilbert,  Atty.  Gen.,  A.  C.  Ti- 
tus, Asst.  Atty.  Gen.,  Miller,  Mack  &  Fair- 
child,  and  Geo.  B.  Hodnall,  for  respondents. 

MARSHALL,  J.  (after  stating  the  facts  as 
above).  The  arguments  of  counsel  cover  a 
very  wide  range  as  to  whether  the  transac- 


*Kor  other  met  aee  ume  topic  and  section  NUMBER  In  Dec.  *  Am.  Dig*.  ISOT  to  data,  *  Reportor  Indexes 
122N.W.-65 


Digitized  by  VjOOQ  l€ 


1026 


122  NOBTHWESTEBN  BKPOBTSB. 


(WU. 


tlons  detailed  In  the  statement  show  that  a 
contract  was  made  between  appellant  and 
respondent  telephone  company.  On  that 
branch,  waiving  the  matter  of  public  policy, 
snch  purely  dementary  principles  are  involv- 
ed that  it  la  not  thought  best  to  follow  the 
intricacies  of  the  arguments  with  which  the 
court  has  been  favored.  What  constitutes  ft 
contract,  in  the  general  sense,  is  too  familiar 
to  require  discussion.  If  there  was  an  offer 
on  one  side  to  render  a  service  to  the  other 
within  the  competency  of  that  other  to  re- 
ceive for  the  use  of  its  ofBcers  in  the  conduct 
of  the  public  business  or  the  convoiience  of 
the  public,  in  exchange  for  a  privilege  of 
value  within  the  competency  of  such  other 
to  grant  and  which  was  granted  in  such  ex- 
change, subject  to  legitimate  conditions 
which  were  accepted,  there  Is  hardly  room 
for  argument  but  that  a  valid  contract  was 
made. 

No  pecuniary  liability  on  the  part  of  the 
dty  was  contemplated  in  the  transaction. 
Therefore,  it  is  useless  to  consider  appel- 
lant's charter  provisions  respecting  the  man- 
ner of  making  contracts  in  that  field. 

It  Is  obvious  that  it  was  important  for 
the  telephone  company  to  be  able  to  afford 
its  general  customers  facilities  for  communi- 
cating by  telephone  with  the  public  offices. 
That  opportunity  could  not  operate  other- 
wise, than  to  render  the  service  it  offered  In 
g^neralmore  valuable  than  It  would  other- 
wise'^ be  and  BO  attract  customers  and  great- 
ly .extend  its  sphere  of  operations.  That 
which  it  sought  to  obtain  was  then  a  legiti- 
mate basis  for  a  contract  It  is  Just  as  ob- 
vious that  the  service  which  it  offered  in 
return  for  the  privilege  sought  could  not  be. 
otherwise  than  valuable  to  appellant  as  a 
meaps  of  expediting  the  public  business. 
Such  privilege  may  well  have  been  consider- 
ed' so  specially  valuable  to  the  company  as  to 
be  a  fair,  equivalent  for  the  free  service,  so- 
called,  that  is  free  as  regards  appellant  ren- 
dering any  direct  pecuniary  consideration 
therefor. 

No  question  is  raised,  or  could  well  be, 
k>ut  what  It  was  competent  for  appellant  to 
contract  for  telephone  service.  So  there  la 
no  question,  of  competency  In  general  to  be 
considered.  It  1>  argued  that  no  contract 
was  made  because  the  offer  of  the  company 
was  only  conditionally  accepted  by  appel- 
lant. That,  of  course,  does  not  cut  any  figure 
since  the  modified  acceptance  was  submitted 
to  by  the  company  by  installing  the  tele- 
phones. As  in  the  case  of  any  municipal 
privilege  granted,  no  written  acceptance  was 
necessary.  The  actual  enjoyment  of  the  priv- 
ilege granted  was  aa  effective  to  close  the 
contract  as  a  formal  written  accqvtance,  in 
the  absence  of  any  wrlttm  law  requiring  a 
different  acceptance. 

Even  in  case  of  a  legislative  franchise 
granted  upon  specified  conditions  but  without 
providing  any  manner  of  acceptance,  use  of 
the  franchise  constitutes  an  acceptance  and 


creates  contractual  obligations.  Heath  v. 
Silverthom  Lead  Mining  &  Smelting  Co.,  39 
Wis.  146 ;  Madison,  Watertown  &  Milwaukee 
Plankroad  Company  v.  Reynolds,  3  Wis.  287. 

In  a  case  of  this  sort  parties  are  competent 
to  contract  the  same  as  private  persona.  An 
offer  on  one  side  may  be  accepted  by  onqnall- 
fled  performance  on  the  other,  as  well  aa  In 
any  other  way,  in  case  the  offer  does  not  oth- 
erwise require.  This  is  so  in  harmony  with 
the  most  familiar  of  elementary  principles 
that  nothing  further  need  be  said  in  re^)ect 
to  the  matter.  The  facts  show  unmistakably 
that  a  binding  contract  was  made  aa  appel- 
lant claims,  unless  it  la  void  upon  grounds 
hereafter  discussed. 

It  is  suggested  that  the  transaction  contem- 
plated treating  appellant  as  a  favored  cus- 
tomer, contrary  to  public  policy.  It  Is  conced- 
ed that  there  was  no  written  law  at  the  time 
the  contract  was  made  prohibiting  the  com- 
pany from  granting  appellant  a  different  rate 
for  service  than  general  customers,  but  It  is 
insisted  the  circumstances  fall  within  the 
common-law  rule  that  a  quasi  public  corpora- 
tion should  afford  the  service  it  offers,  to  ev- 
ery person  upon  the  same  basis  that  it  does  to 
any  one  under  the  same  or  similar  circum- 
stances; that  any  substantial  departure  there- 
from is  an  unjust  discrimination  and  con- 
trary to  soxmd  public  policy,  rendering  any 
contract  for  such  discriminatory  service  un- 
enforceable by  Judicial  remedies. 

The  contract  in  this  case  having  been  made 
before  the  legislation  occurred  prohibiting 
dlscrlmlnatoij  rates  such  legislation  does  not 
cut  any  figure  in  the  case.  If  the  contract 
were  valid  when  made  it  is  within  the  con- 
stitutional protection  precluding  the  Legisla- 
ture from  impairing  the  obligations  of  eon- 
tracts.  Moreover,  it  is  by  no  means  certain 
but  what  the  special  circumstances  In  this 
case  would,  in  any  event,  take  the  same  out 
of  the  common-law  rule  mentioned.  We  need 
not  go  further  on  this  branch  of  the  case  than 
to  suggest  that  it  Is  not  every  discrimination 
in  tiie  treatment  by  public  service  corpora- 
tions of  their  customers  whldi  Is  condemned 
by  the  common  law.  Only  unjust  discrimina- 
tions are  so  condemned.  For  special  reasons, 
in  the  absence  of  any  written  law  on  the 
subject,  such  a  corporation  may  make  a  dif- 
ferent rate  to  one  person  than  to  another,  or 
accept  pay  from  one  upon  a  mon^  rate  and 
from  another  in  service  «f  ft  legitimate  char- 
acter or  some  other  reasonable  equivalent,  so 
long  as  the  c<MnpensatIon  demanded  is  within 
reason  under  the  circumstances.  This  sub- 
ject covers  a  broad  field.  We  leave  It  with- 
out stating  much  more  than  the  rule  in  gen- 
eral, nothing  further  being  at  all  necessary  to 
the  case  In  hand. 

It  should  be  noted  that  the  Legialature  in 
enacting  the  law  of  1907  (Laws  1807,  p.  448, 
c.  499),  appreciating  there  might  be  contracts 
existing  between  public  service  corporations 
and  customers,  valid  In  the  absence  of  pro- 
hibition by  written  law,  and  that  it  was  not 


Digitized  by  VjOOQ  l€ 


Wi84 


OITT  OP  SUPERIOR  ▼.  DOUGLAS  COUNTY  TELEPHONE  OO. 


1027 


within  Its  competency  to  nullify  or  impair 
them,  expressly  proTided  at  section  1797m01, 
that: 

"The  (omlshlns  by  any  public  ntUlty,  of 
any  product  or  serrice  at  the  rates  and  upon 
the  terms  and  conditions  provided  for  In  any 
existing  contract  execnted  prior  to  April  1st, 
1907,  shall  not  constitute  a  discrimination 
within  the  meaning  spedfled.    •    •    • " 

Sufficient  has  been  said  to  Indicate  that  the 
question  of  whether  the  contract  In  question 
Is  unenforceable  on  grounds  of  public  policy 
must  be  solved  with  reference  to  the  condi- 
tion of  things  at  the  time  it  was  made.  If 
pablic  policy  sanctioned  it  then,  &  cttange 
thereof  by  act  of  the  Legislature  or  otherwiaci 
does  not  afCect  its  validity.  Oreenhood  on 
Pub.  PoL  S. 

Pnblle  policy  as  bearing  on  the  validity,  or 
In  other  words  the  Judicial  enforceability  of 
contracts.  Is  that  principle  which  maintains 
that  a  person  cannot  rightfully  do  or  bind 
himself  to  do  that  which  is  Inimical  to  the 
public  good.  So  where  a  contractual  situa- 
tion is  not  found  to  be  clearly  within  the 
principle  condemning  It,  it  cannot  properly 
be  said  to  be  illegitimate  merely  because  there 
is  diaeriinlnatlon.  Discriminatory  contracts 
between  pnblic  utility  corporations  and  their 
patrons  which  are  held  to  be  void  as  Inimical 
to  the  public  good  are  so  held  because  unrea- 
sonable advantage  Is  thereby  given  to  one 
customer  or  a  class  over  others,  whereas  all 
have  a  moral  and  legal  right  to  equality  of 
treatment  In  case  of  the  contract  being  be- 
tween a  private  corporation  and  the  state  or 
other  public  corporation,  whatever  advantage 
the  particular  customer  has  over  general  cus- 
tomers, obviously,  inures  to  the  t>enefit  of  the 
latter  in  the  aggregate.  In  other  words,  in 
the  ultimate  there  is  no  discrimination  which 
is  inimical  to  the  public  good,  and  hence  no 
violation  of  public  policy.  Such  is  the  situa- 
tion here.  If  we  concede  that  the  appellant 
under  the  contract  was  a  favored  customer, 
In  that  if  the  same  advantages  had  been 
granted  by  contract  to  a  private  corporation 
the  agreement  would  have  been  unenforce- 
able, still  in  the  circumstances  here  the  con- 
tract is  enforceable  because  the  advantage  is 
to  the  public  Instead  of  to  any  particular 
member  thereof. 

But  it  is  argued  that,  conceding  there  is  a 
contract  as  claimed  by  appellant,  valid  as  re- 
gards any  written  or  unwritten  law,  it  is  nn- 
enfoi-ceable,  so  far  as  ^ecutory,  because  no 
tlBie  is  specified  with  reasonable  deflnlteness 
for  its  duration.  We  assume  that  point  is 
made  relying  on  the  familiar  principle  gov- 
tmlng  sndi  cases  as  Irish  v.  Dean,  39  Wis. 
582,  and  OofBn  v.  Landls,  46  Pa.  430.  The 
rale  on  the  subject  was  stated  in  Robson  v. 
Misrissippi  River  Logging  Co.  (O.  C.)  43  Fed. 
864,  868,  thus: 

"Whoi  a  contract  is  silent  as  to  the  mat- 
ter of  ita  dnratiiM),  then  It  is  ordinarily  ter- 
aainable  at  the  pleasure  of  either  party,  rea- 
aonabla  notice  betng  givoi  to  the  other  party. 


When  there  is  nothing  in  a  contract,  when 
applied  to  Its  subject-matter,  which  either 
directly  or  In  fair  Implication  can  be  consid- 
ered to  fix  a  limit  to  its  duration  the  law  In- 
fers that  the  parties  Intended  that  such  con- 
tract is  terminable  at  the  option  of  either 
party,  reasonable  notice  of  the  exercise  of 
such  option  being  required,  when  such  notice 
is  needed  for  the  protection  of  the  other  par- 
ty to  the  contract" 

That  does  not  mean  that  a  contract  for 
continuous  service  is  fatally  indefinite  so  as 
to  be  subject  to  the  option  mentioned  merely 
because  It  does  not  specify  a  time,  presently 
definite,  for  its  termination.  As  said  in  the 
case  quoted  from:  "^ 

'The  duration  of  a  contract  may  be  m^de 
dependent  npon  the  expiration  of  a  period  of 
time,  or  upon  the  completion  of  a  given  un- 
dertaking, or  the  happening  of  some  event', 
all  of  which  in  turn  may  be  certain  or  uncer- 
tain as  to  the  date  when  the  undertaking 
may  be  completed,  or  the  event  may  happen. 
This  uncertainty,  however,  does  not  render 
the  contract  terminable  at  will."  43  Fed. 
870.  -^ 

It  is  conceded  that  the  contract  In  ques- 
tion, in  its  letter,  fixes  a  time  for  its  ter- 
mination, to  wit,  when  the  telephone  com- 
pany ceases  to  "maintain  and  operate  a  tel- 
ephone exchange  in  said  city."  But  it  is 
argued  that  the  language  is  ambiguous,  be- 
cause It  would  be  so  unreasonable  for  a  tel- 
^hone  company  to  agree  for  such  a  mere 
privilege  as  that  granted  to  give  service 
through  12  telephones  during  the  entire  pe- 
riod of  its  existence  as  an  operating  com- 
pany in  the  grantee  city,  that  it  cannot  be 
there  was  any  such  mutual  intention  In  this 
case.  For  my  own  part,  the  proposition 
thus  presented  is  one  of  serious  difficulty. 
However,  it  is  the  opinion  of  the  court  that 
it  may  well  be  the  telephone  company,  un- 
der the  circumstances,  supposed  the  con- 
tract taking  it  at  its  lettra,  provided  for  a 
fair  exchange  of  equivalents.  At  any  rate. 
In  the  opinion  of  the  court,  there  is  noth- 
ing In  the  situation  presented  to  Indicate 
that  the  agreement,  taken  literally.  Is  so  on- 
reasonable  as  regards  its  continuance,  as  to 
warrant  treating  the  language  of  the  t>ar- 
ties  In  that  regard  as  amblgnont.  There- 
fore, In  the  opinion  of  the  court,  the  con- 
tract is  binding  according  to  its  terms. 

No  question  Is  raised  as  to  whether,  in  - 
any  event,  this  case,  from  the  showing  made 
In  the  complaint,  falls  within  some  recog^ 
nhced  head  of  equity  Jurisprudence.  There- 
fore, we  take  it  that  the  parties  considerate- 
ly waived  that  question.  'Beaqe  this  court 
will  not  consider  it  It  follows  that  the 
ground  upon  which  the  general  demurrer  to 
the  complaint  was  sustained  and  the  tem- 
porary injunction  denied  is  untenable,  and 
that  others,  if  any  there  be,  are  deemed 
waived. 

It  is  the  opinion  of  the  court  that  the 
order  sustaining  the  demurrer  as  regards 


Digitized  by  VjOOQ  l€ 


1028 


122  NORTHWESTERN  REPORTEa 


(Wlik 


the  improper  Joinder  of  actions  eliould  be 
affirmed;  tliat  tlie  statntory  action  created 
to  enable  a  part7  aggrieyei  by  an  order  of 
the  Railroad  Commission,  by  action  against 
sncli  commission  to  challenge  the  validity 
of  such  order  is  not  Joinable  with  another 
action  of  primary  Import  against  some  oth- 
er party,  to  prevent  the  latter  from  com- 
plying with  such  order;  that  the  statute 
does  not  contemplate  affording  opportimity 
to  compel  the  Railroad  Commission  to  ap- 
pear In  court  as  a  party  defendant  and  vin- 
dicate the  validity  of  its  action  upon  such 
validity  being  challenged  at  the  suit  of  an- 
other against  a  third  person,  and  that  to 
permit  such  to  be  done  would  unduly  preju- 
dice administration  of  the  law  by  such 
commission.  Section  2647,  St  1888,  on  the 
subject  of  Joinder  of  action,  it  is  thought, 
does  not  permit  the  special  statutory  action 
against  the  commission  to  be  Joined  with 
any  other. 

The  point  is  made  that  tlie  complaint  Is 
•demurrable  because  it  is  aimed  at  an  order 
of  October  14,  1908,  which  Is  based  on  one  of 
June  12,  1908,  in  favor  of  which  the  limita- 
tion of  time  to  question  the  validity  under 
section  1787me5,  expired  before  the  action 
Vas  commenced.  It  is  a  sufficient  answer 
thereto  that  the  complaint  is  silent  atwut 
any  order  of  June  12,  1908.  So  far  as  the 
pleading  shows  the  order  of  October  14, 
1908,  is  wholly  an  original  matter. 

From  the  foregoing  it  follows  that  the 
order  appealed  from,  as  regards  the  tem- 
porary injunction  and  the  general  demur- 
rer, is  reversed,  and  that  as  regards  im- 
proper Joinder  of  causes  of  action,  it  Is  af- 
firmed. 

So  ordered  with  costs  In  favor  of  appel- 
lant against  the  telephone  company  and 
costs  in  favor  of  the  Railroad  Commission 
against  appellant. 

MARSHAI4L,  J.  (dissenting  in  part).  It 
seems  proper,  though  it  is  unusual  for  one 
after  having  written  the  opinion  of  the 
court,  with  which  the  writer  is  in  harmony 
in  the  main,  by  an  independent  opinion  to 
state  such  individual  views  as  are  not  in 
such  harmony.  I  have  taken  that  method 
on  other  occasions  and  am  constrained  to 
follow  it  as  a  practice  where  it  can  l>e  done 
without  prejudice  to  'vindicating  fully  the 
court's  Judgment  of  the  case.  80  much  for 
what  may  seem  somewhat  novel  in  writing 
at  the  same  time  the  main  and  a  dissenting 
opinion,  in  part,  as  well. 

I  will  not  add  here  more  than  a  suggestion 
to  what  is  said  in  the  decision  indicating 
doubt  as  to  whether  the  contract  for  main- 
tenance of  the  telephones  indicates  with 
sufficient  certainty  the  time  of  Its  termina- 
tion to  take  it  out  of  the  rule  as  regards  ter- 
mlnabillty  at  the  option  of  either  party. 
Much  could  be  said  on  that  question.  I 
rather  incline  to  the  view  that  the  parties 
to  the  contract  did  not  intend  that  the  agree- 
ment should  be  substantially  perpetuaL 


The  conclusion  of  the  court  that  the  de- 
murrer for  Improper  Joinder  of  causes  of 
action  was  well  taken,  involved  a  decision 
that  two  good  causes  of  action  were,  in  form, 
stated  in  the  complaint,  one  against  the 
Railroad  Commission  to  secure  Judicial  con-i 
demuatlon  of  the  order  to  discontinue  the 
telephone  service  under  the  contract  upon 
the  ground  of  such  order  being  unlawful,  and 
one  against  the  telephone  company  to  pre- 
vent its  terminating  such  service.  Prob- 
ably the  latter  cause  of  action,  bad  the  ques- 
tion been  raised  properly,  would  have  i)een 
hard  to  maintain  in  equity  in  face  of  the 
general  rule  that  any  party  to  a  contract 
may  breach  it  and  submit  to  responsibility 
for  damages.  That  is  subject  to  exceptions, 
perhaps,  covering  cases  where  the  injury 
Is  Irreparable  by  an  award  of  damages  but 
it  would  be  difficult  to  bring  this  case  with- 
in such  exception  and  we  pass  that 

The  cause  of  action  against  the  commiasi<Mi 
is  expressly  provided  for  by  chapter  499,  p. 
448,  Laws  1907.  The  legislative  plan  is  that 
the  validity  of  any  order  of  the  ctMnmissioa 
shall  only  be  challenged  in  an  action  in  whidi 
such  commission  is  a  party  defendant  com- 
menced in  Dane  county.  Section  1797m64. 
That  provides  for  quite  a  summary  way  of 
testing  such  a  question  and  was  clearly  de- 
signed to  be  exclusive,  the  idea  being  that 
business  interests  should  not  be  prejudiced 
by  long-continued  uncertainty  as  to  validity 
of  a  commission  regulation,  and  that  tn  case 
of  such  validity  being  challenged  by  Judicial 
proceedings  to  annul  it  the  officials  charged 
with  the  duty  of  enforcing  it  and  who  origi- 
nated it  should  have  opportunity  to  be  heard, 
representing  the  state.  That  such  is  the 
scheme  written  into  section  1797m64  and  the 
associate  sections  Is  made  plain  beyond  rea- 
sonable doubt  in  the  fact  that  by  section 
1797m65  a  short  limitation,  upon  the  right 
to  cliallenge  the  validity  of  a  commission 
order,  is  created.  It  is  there  provided,  in 
effect  that  unless  an  action  shall  be  brought 
in  Dane  county  against  the  commission  to 
test  the  validity  of  any  determination  made 
by  it  within  90  days  after  the  entry  thereof, 
no  question  in  that  regard  shall  be  regarded 
as  open  to  Judicial  interference.  All  rights 
in  that  regard  "shall  terminate  absolutely 
at  the  end  of  ninety  days  after  such  entry' 
or  rendition"  are  the  unmistakable  words 
of  the  law. 

Pursuant  to  the  statute  this  action  was 
commenced  in  Dane  county.  It  is  clear  that 
the  dominant  purpose  was  to  test  the  valid- 
ity of  the  order  requiring  discontinuance  of 
the  telephone  service.  The  able  lawyer  who 
commenced  the  action  should  not  be  condemn- 
ed as  having  made  such  a  blunder  as  to 
commence  an  action  seeking  to  prevent  the 
telephone  company  from  removing  its  tele- 
phones from  the  city  buildings,  yet  left  the 
order  requiring  such  ronoval  unchallenged, 
so  that,  in  case  of  a  Judgment  in  plaintiff's 
favor  as  to  the  telephone  company,  th«  latter 


Digitized  by  VjOOQ  l€ 


Wl8.) 


CITY  OP  SUPERIOR  v.  DOUGLAS  COUNTY  TBLBPHONB  CO. 


1029 


wonld  be  Immediately  brought  face  to  face 
with  a  written  law,  In  effect,  plainly  requir- 
ing It  to  do  the  very  thing  It  was  prohibited 
from  doing  by  the  judgment. 

Had  the  plaintiff  not  joined  the  two  causes 
of  action,  ao  really  dependent  upon  each  oth- 
er as  aforesaid,  and  made  the  telephone  com- 
pany alone  a  party,  under  competent  legal 
advice,  such  company  would,  doubtless,  have 
seasonably  moved  the  court  for  an  order 
bringing  in  the  commission,  to  avoid  being 
ultimately  placed  In  the  probable  uncomfort- 
able situation  of  inability  to  obey  the  final 
judgment  without  violating  an  unimpeach- 
able order  of  the  commission,  and  inability  to 
obey  such  order  without  defying  the  judgment 
of  the  court. 

Again,  In  case  of  the  nonjoinder  the  cir- 
cuit court  would  have  observed,  at  once,  thai 
it  was  Impossible  to  deal  effectually,  fairly, 
with  the  relations  between  the  plaintiff  and 
the  telephone  company,  without  at  the  same 
time  passing  upon  the  validity  of  the  commis- 
sion's order.  So  It  would  have  faced  a  situa- 
tion unmistakably  within  the  contemplation 
of  the  Legislature  when  it  incorporated  into 
the  Code  the  direction  that  "when  a  complete 
determination  of  the  conti'oversy  cannot  be 
had  without  the  presence  of  other  parties, 
or  any  persons  not  parties  to  the  action  have 
such  Interests  in  the  subject-matter  of  the 
controversy  as  require  them  to  be  made  par- 
ties for  their  due  protection,  the  court  shall 
order  them  to  be  brought  In ;  *  *  *. " 
Section  2C10,  St.  1893. 

A  failure  under  such  circumstances  to  ob- 
serve that  very  salutary  Code  provision 
would,  it  seems,  have  been  such  plainly  fatal 
error  as  to  require  a  reversal  on  appeal  in 
case  of  this  court  obtaining  jurisdiction  of 
the  cause,  even  If  the  question  was  not  raised, 
by  any  party  to  the  litigation.  McDougald 
V.  New  Richmond  R.  M.  Co.,  125  Wis.  121- 
129,  103  N.  W.  244;  Washburn  v.  Lee,  128 
Wis.  312-320,  107  N.  W.  649. 

I  am.  unable  to  see  any  escape  from  the 
foregoing ;  neither  can  I  see  any  warrant  for 
holding  that  in  creating  the  method  prescrib- 
ed In  the  act  of  1907  for  challenging  the  va- 
lldity  of  a  commission  order  by  action,  the 
Legislature  did  not  Intend  that  all  the  Code 
provisions  for  the  orderly  and  proper  con- 
servation of  the  rights  of  parties  should  ap- 
ply to  the  statutory  action.  On  the  con- 
trary. It  seems  the  lawmaking  power  must 
have  had  that  In  contemplation  and  not  have 
thought  to  create  a  system  that  might  cause 
such  a  clash  of  duties  as  must  Inevitably 
sometimes  occur  under  such  a  practice  as  the 
decision  in  this  case  lays  down.  I  cannot 
escape  the  conclusion  that  such  practice  runs 
directly  counter  to  the  plain  mandate  of  the 
Code  and  the  familiar  principles  of  equity 
which  such  mandate  dignified  by  incorporat- 
ing them  into  the  written  law. 


The  validity  of  the  contract  is  germane  to 
the  validity  of  the  order,  since  if  the  former 
be  valid  it  is  beyond  the  Jurisdiction  of  the 
commission  to  interfere  with  its  execution,  as 
indicated  in  the  decision  of  the  court  The 
validity -of  the  order  is,  for  the  same  rea- 
son, germane  to  the  validity  of  the  con- 
tract. 

So  the  two  matters  were  jolnable  upon  the 
most  familiar  of  equitable  principles.  The 
commission  was  a  proper  party,  since  the 
scheme  of  the  law  of  1907  is  that  it  shall 
represent  the  state  in  such  a  matter,  if  the 
dominant  purpose  of  the  action  were  to  pre- 
vent the  telephone  company  from  removing 
the  telephones  from  the  city  buildings,  and 
the  telephone  company  was  a  proper  party 
if  the  dominant  purpose  of  the  action  were 
to  nullify  the  commission's  order,  while  if 
the  dominant  purpose  were  to  deal  with  the 
telephone  service,  as  such,  then  the  validity 
of  the  contract  and  of  the  order  were  both 
germane  thereto. 

Thus  in  any  aspect  of  the  matter,  the  com- 
mission and  the  telephone  company  were 
properly  brought  into  court  in  one  action  to 
settle  all  the  questions  so  Inseparably  depend- 
ent upon  each  other.'  In  no  other  way  could 
complete  or  real  Justice  be  done  to  any  par- 
ty to  the  litigation.  "Any  person  may  be 
made  a  defendant  who  has  or  claims  an  In- 
terest in  the  controversy  adverse  to  the 
plaintiff,  or  who  Is  a  necessary  party  to  a 
complete  determination  or. settlement  of  the 
questions  Involved  therein."  Section  200.3, 
St.  1898;  Gager  v.  Marsden,  101  Wis.  698- 
607,  77  N.  W.  022. 

Further  discussion  does  not  seem  necessary 
to  demonstrate  the  correctness  of  my  posi- 
tion that,  by  the  plain  provisions  of  the  Code, 
the  commissfon  was  not  only  a  proper  but 
was  a  necessary  party  to  the  litigation 
against  the  telephone  company,  and  the  lat- 
ter was  not  only  a  proper  but  a  necessary 
party  to  the  litigation  against  the  former, 
and  to  absolve  myself  from  personal  re- 
sponsibility for  upholding  the  contract  and 
at  the  same  time  dismissing  the  commission 
from  the  suit,  so  that  the  telephone  company  - 
may  not  be  able  to  enjoy  the  relief  it  ob- 
tained by  the  judgment  without  Incurring 
the  severe  penalties  of  the  commission  law 
for  violation  of  its  order  which.  If  not  validT 
at  the  start,  may  become  so  by  limitation  up- 
on the  use  of  judicial  remedies  for  question- 
ing such  validity. 

BARNES,  J.  I  concur  In  so  much  of  the 
foregoing  dissenting  opinion  of  Mr.  Jus- 
tice MARSHALL  as  holds  that  the  Railroad 
Comihlsslon  of  Wisconsin  was  a  proper  party 
to  the  action. 

WINSLOW,  C.  J.,  took  no  part 


Digitized  by 


Google 


1030 


122  MORTHWSSTBBN  BBPOBTBB. 


(WU. 


MONHOffi  TBIiBPHONB  00.   t.  LUDLOW 

etal. 
(Supreme  Court  «f  Wiaconain.    Oct  26,  1909.) 

TitLEOKAPHB  AND  Telkphoites  (|  10*)— Bk- 
xovAi,  or  Telephonx  Folk— Bight  to  Be- 
OOTSB  Thzbkfob. 

A  tdeidtonc  company,  operating  its  syatem 
upfler  an  ordinance  proTldlnc  that  tlia  location 
•r  «11  polea  ahoold  m  under  the  direction  of 
the  conunon  cooncU,  without  authority  from  the 
cojniCll,  set  a  pole  b  a  street  near  ita  intersec- 
tion with  an  alley,  so  as  to  materially  obstnict 
ttti  access  to  and  from  the  same.  Tht  coun- 
cil directed  its  removal,  but  the  company  piUd 
u6.  attention  to  the  order  and  the  mayor  had 
th&<>ole  removed.  Beld,  that  the  company  could 
not  recover  any  damages  for  removal,  and 
cqnld  not  complain  because  the  muror,  who  was 
cAixed  with  the  duty  of  enforcing  the  laws 
add  ordinances  (St  1898,  |  926-^,  eanied 
out  the  council's  direction. 

[Ed.  Note.— For  other  cases,  see  Telegraphs 
a^  Telephones,  Gent  Dig.  t  6 ;    Dec.  Dig.  | 

Appeal  from  Circuit  Conrt,  Green  County; 
George  Griqiin,  Judge. 

Action  by  the  Monroe  Telephone  Company 
against  Wlllia  Ludlow  and  others.  From  a 
Judgment  for  defendants,  plaintiff  appeals. 
Affirmed. 

J.  h.  Sherron,  for  appellant  A.  S.  Doug- 
las (Aylward,  Davles  &  Olbrlch,  of  counsel), 
fSt  respondents. 

WINSLOW,  C.  J.  This  action  was  brought 
to  recover  damages  for  the  wrongful  remov- 
al of  a  telephone  pole  standing  in  the  street 
In  the  city  of  Monroe,  which  is  a  city  of  the 
fourth  class.  The  action  was  tried  before 
the  court;  trial  by  Jury  having  been  waived. 
The  plaintiff  was  operating  its  system  In 
said  city  under  an  ordinance  providing  that 
the  location  and  setting  of  all -poles  should 
be  under  the  direction  of  the  common  coun- 
cil. It  set  the  pole  In  question,  without  pre- 
vious authority  from  the  council,  in  one  of 
the  streets  of  the  city,  near  its  Intersection 
with  an  alley,  and  In  the  traveled  track,  so 
as  to  materially  obstruct  free  access  to  and. 
from  the  alley.  The  city  council  by  resolu- 
tion directed  the  removal  of  the  pole,  and 
served  a  copy  of  the  resolution  on  the  plain- 
tiff company.  No  attention  was  paid  to  the 
resolution,  and  about  20  days  thereafter  the 
defendant  Ludlow,  who  is  the  mayor  of  the 
city,  aided  by  the  street  committee  of  the 
coimcll  and  an  experienced  lineman,  removed 
the  pole,  being  careful  to  do  no  unnecessary 
damage. 

The  facts  stated  show  that  there  can  be 
no  recovery.  The  company  was  required 
under  the  ordinance,  which  it  had  accepted 
and  was  acting  under,  to  locate  its  poles 
as  directed  by  the  council.  When  directed 
to  remove  the  pole  in  question,  it  was  plain- 
ly Its  duty  to  do  so,  and  it  cannot  complain 
because  the  mayor,  who  Is  the  chief  execu- 
tive officer  of  the  city  and  charged  with  the 


duty  of  enforcing  the  state  laws  and  dty 
ordinances  (St  1898,  |  925— 38),  carried  out 
the  directions  of  ths  oonnelL  This  conclu- 
sion seems  incontestable. 

It  may  well  be,  also,  that  the  mayw  and 
aldermen  were  Jnstijaed  in  removing  such  an 
obstruction  in  the  public  streets  summarily 
under  the  provisions  of  sections  1326  and 
1312,  St  1898  (State  v.  Leaver,  62  Wis.  3S7, 
22  N.  W.  576);  but,  as  the  other  ground  of 
defense  Is  complete,  it  is  unnecessary  to  de- 
cide this  question. 

Judgment  affirmed. 


BICTHEY  V.  UNION  CBNT.  LIFB  INS.  CO. 
(Supreme  Conrt  of-  Wisconshi.    Oct  26,  1909.) 

1.  Appeai,  and  Ebrob  (I  1039*)— Hauiuss 
EhtBOB— Pbejudicial  Bffbot— Flbadinos. 

Befusal  to  compel  plaintiif  to  elect  on  which 
cause  of  action  he  should  proceed,  in  an  action 
for  breadi  of  an  exfiress  contract  engaging  plain- 
tiff as  a  general  insurance  agent,  which  was 
Joined  with  an  action  for  labor  performed  and 
money  expended  in  rendering  such  service,  did 
not  prejudice  defendant,  where  plaintiff,  at  the 
close  of  its  affirmative  case,  discontinued  as  to 
the  second  cause  of  action,  and  informed  defend- 
ant that  be  only  relied  on  the  breadi  of  the 
express  contract. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  |  4084;    Dec.  Dig.  |  1039.»] 

2.  Contracts  (|  280*)^  Bbeach  —  Biqbt  to 
Terminate. 

The  termination  of  a  contract  was  not  jus- 
tified by  a  provision  authorizing  its  tennination 
by  defendant  if  plaintiff  failed  to  comply  with 
any  of  its  conditions,  or  to  conduct  the  bosi- 
ness  in  a  satisfactory  manner,  where  plaintiff 
did  not  violate  that  provision. 

[Bd.   Note.— For  other  cases,  see  Contracts. 
Cent  Dig.  I  1144;  Dm.  D<«.  |  2S0.*] 

3.  DaiCAOES  (i  40n— BUEKENTS— FUTUSB  DAH- 

AOEs— Loss  or  PBonrs. 

Damages  leooverable  for  breach  of  contract 
must  be  reasonably  certain^  and  not  merely 
speculative,  and  future  pecuniary  damages,  such 
as  loes  of  profits,  which  can  be  inferred  with 
reasonable  certainty  are  recoverable,  though  they 
may  he  somewhat  contingent 

[Ed.    Note.— For  other  cases,   see   Damases. 
Cent  Dig.  |}  77-«6;   Dec.  Dig.  |  40.*] 

4.  Damages  ((  40*)  —  Bi.euents  —  Futum 
PsoriTS. 

Future  profits  may  be  recovered.  In  an  ac- 
tion for  breach  of  contract,  where  the  parties 
must  have  reasonably  anticipated  such  result 
at  the  inception  of  the  contract,  if  there  is  snffi- 
cient  evidence  to  furnish  a  legitimate  basis  for 
their  determination. 

[Ed.   Note.— For  other  cases,    see   Damasea. 
CJent  Dig.  fS  77-86;   Dec.  Dig.  |  40.*] 
6.  INSDBANCE  (§  86*)— Employment  of  Agent 

—  Breach  or  Contract  —  Loss  or  Fotubs 

Profits. 

PlaintifF  contracted  to  act  as  defendant  in- 
surance company's  district  agent  for  10  years, 
and  invested  his  money  in  the  business,  and  re- 
organized it  during  the  first  two  years,  with  a 
view  to  enlarging  it  durinr  the  rest  of  the 
contract  period,  lite  eviaenoe  showed  the 
amount  of  the  business  done  the  first  two  years, 
and  that  the  orospects  for  doing  a  future  busi- 
ness were  good,  and  that  in  all  reasonable  prob- 
ability he  would  have  done  an  increased  business 
during  the  succeeding  eight  years  if  defendant 


•For  othsr  cases  aee  sam*  topic  and  aacUon  NTJMBKR  In  Dae.  *  Am.  Diss.  U07  to  data,  *  Reportw  Indam 


Digitized  by  VjOOQ  l€ 


Wia.). 


BIOHBT  T.  UNION  CENT.  LIFB  INS.  OO. 


1031 


had  not  terminated  the  contract.  Betd,  in  an 
action  for  it*  breach,  that  future  losa  of  profit! 
from  the  contract  were  ihown  with  reasonable 
certainty,  m  that  plaintiff  could  recover  there- 
for. 

[Od.  Note.— For  other  eaaea,  see  iDtozance, 
Cent  Dig.  I  US:    Ok.  Dijn  85.*] 

6k  IirsiTBAiroi  a  85*)— Expu>Tia»T  or  Asent 
—  Bkkach  or  CoRiBAOT  —  Reduction  ot 
Dakaoks  —  HORBT  Sabhkd  Oittbidb  Ibf • 

FLOTXKIIT. 

Where  defendant  diadiai|ed  plaintiff  aa  dia- 
trict  insurance  axent,  employed  for  a  term  of 
rears,  so  as  to  deatroy  the  bnsineas  plaintiff 
had  built  npl  defendant  was  not  entitled  to  set 
off  what  plaintiff  had  earned  by  other  employ- 
ment after  defendant* a  breach,  against  damagea 
for  future  proflta. 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  |  110 ;    Dec.  Dig.  |  86.*] 

Appeal  from  Circuit  Court,  Chippewa  Coun- 
ty; A.  J.  Tlnje,  Judge. 

Action  by  T.  H.  Blchey  agalnat  tbe  Union 
Central  Life  Inaurance  Company.  From  a 
Judgment  for  plaintiff,  defendant  ai^als. 
Affirmed. 

About  December  1,  190B,  ttt»  defendant 
contracted  to  employ  the  plaintiff  for  10 
years  as  a  district  agent  In  several  of  the 
counties  In  tbe  northern  part  of  the  state, 
for  the  sale  of  life  Insurance  on  commiBsion. 
PUlntlS  entered  upon  the  performance  of 
the  contract,  devoted  himself  to  the  work  of 
building  up  a  business,  and  expended  his 
earnings  in  furtherance  thereof.  About  Jan- 
uary 1, 1908,  the  defendant,  claiming  that  It 
was  compelled.  In  the  interest  of  Its  policy 
holders,  because  of  the  oppressive  laws  of 
Wisconsin,  to  withdraw  from  the  state  and 
cease  to  do  business  here,  canceled  Its  con- 
tract with  the  plaintiff,  and  discharged  him 
from  Its  employ.  Plaintiff  brought  action 
agalnat  the  defendant,  setting  up  two  causes 
of  action:  (1)  For  the  breach  of  the  con- 
tract; and  (2)  for  the  labor  performed  and 
for  the  money  expended  by  him  for  the  de- 
fendant The  plaintiff  Introduced  evidence 
l>efore  the  referee  to  whom  the  action  had 
been  referred,  tending  to  show  that  be  had 
written  Insurance,  during  the  first  year  of 
bis  employment  by  the  defendant,  from 
which  he  derived  $868  in  premiums,  and 
over  $1,300  during  the  second  year;  that 
his  comfhlsslons  on  the  business  so  written 
would,  If  renewed  annually,  amount  to  over 
$200  per  year  for  the  unexpired  term  of  bis 
contract;  that  he  had  expended  money  in 
traveling  about  his  district  In  advertising 
ftae  company,  and  in  developing  the  territory 
with  a  view  to  future  profits;  that  the  great- 
er part  of  the  work  Incurred  In  establishing 
such  a  business  was  during  the  first  two 
years;  and  that  he  had  expended  time  and 
effort  in  selecting  and  ai^olntlng  eubagents 
who  would  be  efficient  In  the  prosecution  of 
the  business.  Plaintiff,  at  the  conclusion  of 
the  testimony,  elected  to  stand  on  the  first 
cause  of  action,  and  the  referee  reported  In 
favor  of  allowing  plaintiff  $2,750  as  the  dam- 


ages caused  by  the  breach  of  the  contract 
The  circuit  court  approved  the  report  of  Oie 
referee,  and  awarded  plaintiff  Judgment  up- 
on the  report  This  is  an  appeal  from  the 
Judgment 

W.  H.  Stafford,  for  appellant  W.  M. 
Bowe,  for  respondent 

SIBBBCKES,  J.  (after  stating  the  facts 
as  above.)  The  pohit  made  that  the  appel- 
lant was  prejudiced  by  the  refusal  of  the 
trial  court  to  compel  respondent  to  dect 
which  of  the  two  causes  of  action  alleged  in 
the  complaint  he  would  proceed  on  has  no 
merit  The  facts  of  the  so-called  second 
cause  of  action  were  Inserted  for  the  sole 
purpose  of  claiming  damages  for  labor  and 
services  In  -the  event  that  no  binding  con- 
tract should  be  foxmd  to  have  been  made  by 
the  parties,  as  alleged.  The  req>ondent,  at 
the  conclusion  of  his  affirmative  case,  discon- 
tinued as  to  these  allegations,  and  apprised 
appellant  that  he  stood  on  the  contract  and 
Its  alleged  breach  by  the  appellant  There 
was  nothing  to  mislead  appellant,  or  to  In- 
terfere with  Its  defense  to  respondent's  de- 
mands. 

It  is  insisted  that  no  breach  of  the  alleged 
contract  Is  shown.  The  argument  is  that 
the  appellant  had  the  right  to  terminate  Its 
agreement  with  respondent  under  the  stipu- 
lation that.  If  respondent  failed  "to  comply 
with  any  of  the  conditions,  duties,  and  obli- 
gations *  *  *  or  to  conduct  his  business 
in  a  satisfactory  manner,  then"  appellant 
might  at  Its  option  terminate  the  contract 
Under  the  allegations  and  proof  on  this  sub- 
ject It  Is  not  claimed  or  shown  that  the 
agreement  was  terminated  because  respond- 
ent failed  to  comply  with  the  Imposed  con- 
ditions, duties,  and  obligations,  or  because 
he  failed  to  conduct  bis  business  In  a  satis- 
factory manner.  Under  ihese  circumstances 
appellant  cannot  assert  that  the  agreement 
was  terminated  under  the  foregoing  stipula- 
tion and  this  claim  need  not  be  further  c<hi- 
sldered. 

The  main  contention  Is  that  the  evidence 
does  not  Justify  the  damages  awarded  by 
the  court  for  the  breach  of  this  contract 
The  record  presents  a  case  of  facts  showing 
that  the  appellant  made  an  agreement  with 
the  respondent  whereby  he  was  appointed 
appellanfa  agent  for  a  portion  of  this  state, 
to  solicit  persona  to  take  Insurance  with  the 
appellant,  and  to  collect  and  pay  over  the 
premiums  on  all  tbe  Insurance  effected  by 
him,  requiring  him  to  devote  all  of  his  time 
and  efforts  to  such  business  for  the  period 
of  10  years.  Respondent  entered  upon  the 
performance  of  his  duties  and  obllgattons 
and  effected  insurance  and  collected  pre- 
miums for  the  period  of  2  years.  He  organis- 
ed the  territory  allotted  to  him,  secured  per- 
sons to  work  under  his  direction,  and  ex- 


•For  atlier  cases  see  same  topic  ud  lecticn  NOMBSR  tn  Dec.  *  Am.  Digs.  U07  to  data.  *  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


1032 


122  NORTHWESTERN  REPORTER. 


(Wis. 


pended  mosey  Is  establlshlsg  an  insurance 
buBinesa  to  be  carried  on  under  the  appoint- 
ment 80  made.  At  the  expiration  of  2  years 
appellant  breached  the  agreement  by  an  un- 
justifiable termination  thereof,  and  thereby 
prevented  respondent  from  continuing  as  its 
Insurance  agent  In  the  business  so  organized. 
The  claim  is  that  the  respondent  has  been 
compensated  for  the  insurance  he  had  effect- 
ed and  the  premiums  collected  by  him  to  the 
time  of  the  allied  breach,  and  that  no  dam- 
ages could  be  awarded  for  prospective  loss- 
es, because  they  were  speculative,  imag- 
inary, and  uncertain,  and  therefore  too  re- 
mote to  be  recoverable  in  the  law.  The 
damages  recoverable  for  a  breach  of  con- 
tract must  be  reasonably  certain,  and  the 
proximate  result  of  the  breach.  This  ex- 
cludes recovery  of  all  merely  speculative, 
possible,  or  imaginary  damages.  The  In- 
quiry in  each  claim  for  future  damages  for 
breach  of  contract  Is  whether  or  not  they 
are  traceable  as  the  result  of  the  breach. 
In  all  such  cases  the  elements  of  the  dam- 
ages are  Involved  In  some  uncertainty  and 
contingency,  yet.  If  under  the  facts  shown, 
It  can  be  Inferred  with  reasonable  certainty 
that  the  breach  caused  the  other  party  to 
the  agreement  pecuniary  loss,  then  be  should 
be  allowed  to  recover  compensation  to  make 
good  the  loss,  and  this  though  consideration 
of  future  profits  may  be  involved  In  Its  as- 
certainment 

The  adjudications  on  this  subject  are  not 
harmonious  in  their  conclusions,  nor  Is  there 
any  uniformity  as  to  what  are  held  to  be  re- 
mote and  what  proximate  damages.  Under 
the  decisions  of  this  court  It  Is  established 
that:  "Where  the  profits  lost  are  such  as 
the  parties,  at  the  Inception  of  the  contract, 
bad  In  contemplation,  and  the  person  guilty 
of  the  breach  of  It  must  reasonably  have  an- 
ticipated would  result  therefrom  to  the  oth- 
er party,  and  there  Is  evidence  sufiSclent  to 
furnish  a  legitimate  basis  for  their  determi- 
nation, by  the  exercise  of  sound  judgment 
on  the  part  of  the  jury,  they  constitute  a 
proper  measure  of  damages,  and  are  recov- 
erable." Schumacher  v.  Helnemann,  99 
Wis.,  op.,  257,  74  N.  W.  785.  This  rule  was 
there  applied  and  held  to  allow  recovery  for 
breach  of  contract  of  a  traveling  salespian 
who  was  to  be  compensated  by  commissions 
on  the  sales  made,  and  was  allowed  to  re- 
cover damages  for  the  prospective  sales  for 
the  unexpired  period  of  the  contract,  when 
It  was  terminated.  Other  cases  in  this  court 
ta  the  same  effect  are  Treat  v.  HUes,  81 
Wis.  280,  50  N.  W.  896;  Cameron  v.  White, 
74  Wis.  425,  43  N.  W.  155,  5  L.  R.  A.  493. 

There  Is  evidence  is  the  case  showing  the 
amount  of  business  respondent  did  during 
the  first  2  years  of  the  contract  period ;  that 
he  bad  organized  It  with  a  view  to  enlarging 
and  Increasing  It  for  the  8  remaining  years 


and  to  this  end  he  Invested  his  money  In  the 
business ;  that  he  was  very  successful  as  an 
Insurance  sollcttor  and  business  promoter; 
that  the  prospects  for  doing  a  future  busi- 
ness, with  the  enterprise  so  established,  were 
favorable;  that  in  all  reasonable  probability 
he  would  do  an  increased  business;  and  that 
he  was  prevented  from  reaping  the  benefits 
therefrom  only  by  appellant's  termination  ot 
his  agency.  This  Is  ample  proof  to  show 
with  reasonable  certainty  that  damages  re- 
sulted to  respondent,  and  justified  the  trial 
court  In  Its  conclusion  to  allow  the  amount 
of  damages  awarded  for  the  breach  of  the 
contract 

The  point  is  made  that  the  amount  ot 
damages  so  found  should  have  been  reduced, 
by  what  the  respondent  earned  outside  of 
the  contract  employment  after  breach  and 
before  trial.  The  court  properly  refused  this 
deduction.  This  Is  an  action  to  recover  the 
damages  caused  by  the  breach  of  the  con- 
tract to  respondent's  agency  business,  built 
up  under  this  agreement  When  appellant 
terminated  the  agreement  and  destroyed  the 
business,  its  liability  became  fixed.  It  was 
responsible  for  the  value  of  the  agency  busi- 
ness as  it  then  existed,  and  which  went  out 
of  existence  by  Its  Illegal  act 

There  is  no  error  In  the  record. 

Judgment  affirmed. 


8TUMM   V.   WESTERN   UNION  TELE- 
GRAPH CO. 

(Supreme  Court  of  Wisconsin.    Oct  26,  1909.) 

1.  Teleobaphs  ANn  Telephones  (S  67*)— 
Failube  to  Deliveb  Messaqe — Dahaoes. 

In  an  action  against  a  telegraph  company 
for  failure  to  deliver  a  telegram  informing  the 
sendee  that  plaintiff  would  be  at  its  place  of 
business  to  formally  close  a  contract  of  employ- 
ment, the  terms  of  which  had  been  accept^  by 
plaintiff,  whereby  plaintiff  lost  the  position, 
damages  for  profits  which  plaintiff  would  have 
made  had  be  closed  the  contract  were  not  too 
speculative  to  be  recovered. 

[Ed.  Note.— For  other  cases,  see  Telegraphs 
and  Telephones,  Cent  Dig.  {  67;    Dec.  Dig.  { 

2.  Teleobaphs  ans  Telephones  (S  70*)  — 
Measdbe  or  Dahaoes  —  Loss  of  Fctubi 
Pbofitb. 

In  an  action  for  damages  for  failure  to  de- 
liver telegram,  preventing  plaintiff  from  obtain- 
ing employment,  the  measure  of  damages  is  the 
reasonable  value  of  the  einployment  contract  to 
plaintiff,  if  the  evidence  afcopos  a  fairly  reason- 
able basis  for  determining  its  valne. 

[Ed.  Note.— For  other  cases,  sec  Telegraphs 
and  Telephones,  Cent  Dig.  i  72;  Dec.  Dig.  I 
70.*J 

3.  Appeai,  and  Ebbob  (t  1001*)— Vebdict- 
Conclusiveness. 

If  the  jury  were  reasonably  warranted  In 
the  conclusions  found  in  their  special  verdict  it 
is  not  reviewable. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  H  8928-3934;  Dec.  Dig.  I 
100L»] 


•«'or  0Ui*r  caiea  ■«•  tune  topic  and  lecuos  ^  umukh  In  Dec.  *  Am.  Dig*,  vxn  to  date,  ft  Reporter  Iji£ki« 


Digitized  by 


Google 


wis.) 


8TUMM  V.  WESTERN  UNION  TELEGRAPH  00. 


1033 


4.  Tbiai.  (I  186*)— iHSTBuonowa— Wkight  of 

Evidence. 

In  an  action  against  a  telegraph  company 
for  damages  caused  by  failure  to  deliver  a  tele- 
gram, an  instruction  that,  in  order  to  find  that 
SlaintiS  lost  a  contract  of  employment  by  non- 
elivery  of  the  telegram,  the  jur^  must  be  satis- 
fied that  the  sendee  had  anthonty  from  the  al- 
leged employer  to  make  the  contract  with  plain- 
tiff did  not  invade  the  province  of  the  Jury  by 
•uggesting  a  finding  of  such  authority. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  SI  400,  410;  Dec.  Dig.  g  186.*] 

5.  PsuvciPAL  AND  Agent  (S  124*)— Authokhy 
— Jury  Question. 

In  an  action  against  a  telegraph  company 
for  damagea  by  failure  to  deliver  a  telegram  in- 
forming Om  sendee  that  plaintiff  would  be  at  a 
certain  place  to  formally  close  a  contract  of 
employment,  claimed  to  have  been  made  by  the 
sendee  as  agent  of  another,  whether  the  sendee 
bad  authority  to  make  sach  contract  held  for 
the  jnry. 

[Ed.  Note.— For  other  cases,  see  Principal  and 
Agent,  Cent.  Dig.  {  724 ;   Dec  Dig.  S  124.*] 

6.  Negligence  (|  136*)— Pboximate  Cause- 
Question  FOB  JUBT. 

What  constitutes  proximate  cause  in  the 
law  of  negligence  is  for  the  court  to  decide, 
while  what  constitutes  proximate  cause  in  a 
given  case  is  ordinarily  for  the  jury,  under  prop- 
er instructions. 

[Ed.  Note.— For  other  cases,  see  Negligence, 
Cent.  Dig.  H  327-332 ;    Dec.  Dig.  {  136.*] 

7.  Tbiai.  (§  25o*)— Instructions— Requests. 

Ordinarily  the  court  should  give  suitable 
instructions  upon  proximate  cause,  whether  re- 
quested to  do  so  or  not ;  but  failure  to  instruct 
is  not  reversible  error,  where  no  request  is  made. 
[Ed.  Note. — For  other  cases,  see  Trial,  Cent. 
Dig.  Sf  627-641;    Dec.  Dig.  |  255.*] 

8.  Appeal  and  E^rbob  (|  728*)— AssiGNitENTB 
of  Ebbob— Aduission  ot  Evidence — Sur- 

riCIENCT. 

Where  the  particular  parts  of  the  evidence 
claimed  to  have  been  improperly  admitted  are 
not  pointed  out,  and  the  pages  of  the  printed 
case  referred  to  generally  do  not  contain  the 
evidence  claimed  to  be  incompetent,  the  assign- 
ment cannot  be  considered. 

•[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  |  3011 ;   Dec.  Dig.  }  728.*] 

9.  Appeal  and   Error  (§   1051*)— Habio-ebs 
Error— Admission  of  evidence. 

Any  error  in  admitting  evidence  was  harm- 
less, where  the  same  facts  were  shown  by  com- 
petent evidence. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  IS  4161-4170;  Dec.  Dig.  S 
1051.*] 

Appeal  from  Circuit  Court,  Waukesha 
County ;  Martin  L.  Lueck,  Judge. 

Action  by  G.  W.  Stumm  against  the  West- 
em  Union  Telegraph  Company.  From  a 
Judgment  for  plaintiff,  defendant  appeals. 
Affirmed. 

Action  to  recover  compensation  for  dam- 
ages claimed  to  have  been  caused  by  negli- 
gence in  failing  to  send  and  deliver  a  tele- 
gram. 

Plaintiff  applied  by 'letter  for  employment 
as  a  second  miller  In  a  mill  In  Venezuela. 
Ue  addressed  the  letter  to  a  firm  in  New 
York  In  response  to  an  advertisement  Invit- 
ing applications  for  the  place.  In  due  time 
he  received  an  answer,  through  AUis-Chal- 


mers  Company  of  Milwaukee;  stating  that 
they  were  empowered  in  the  matter  and 
stating  such  things  as  he  would  likely  wish 
to  know  before  engaging,  requesting  a  re- 
ply as  to  his  experience,  and  informing  him 
that,  if  they  should  engage  him,  a  visit  to 
them  before  going  to  take  the  place  wotild 
be  required.  In  due  time  he  returned  a  satis- 
factory reply.  Thereupon  they  wrote  again, 
specifying  the  wages  offered,  stating  that  ex- 
penses both  ways  would  be  paid,  and  that, 
if  the  terms  were  satisfactory,  they  would 
probably  have  him  come  to  Milwaukee  to  ar- 
range details.  Plaintiff  responded  accepting 
the  terms.  He  soon  thereafter  wrote  again. 
Two  days  later  they  telegraphed  him  to  come 
to  Milwaukee  to  make  a  contract.  The  mes- 
sage was  duly  received  by  defendant  at  Its 
main  office  In  Milwaukee  and  put  on  the 
wire.  It  went  first  to  the  Chicago  office, 
then  to  the  St  Louis  office,  where  It  was 
delivered  to  a  16  year  old  female  operator 
for  transmission  to  the  point  of  destination, 
Staunton,  111.  It  did  not  reach  there  or 
plaintiff.  About  three  weeks  thereafter  plain- 
tiff gave  up  the  position  he  had,  supposing 
he  was  going  to  obtain  the  place  for  which 
he  had  applied,  and  went  to  Milwaukee  to 
see  about  it.  The  Allis-Chalmers  Company, 
not  hearing  from  plaintiff,  had  entered  into 
negotiations  with  another  man  in  respect 
to  the  matter,  whom  they  employed.  Pltiln- 
tlff  stood  ready  to  take  the  place  on  the 
terms  that  had  been  stated  to  blm,  but  was 
unable  to  secure  it  for  the  reason  indicated. 
They  waited  some  two  weeks  to  hear  from 
plaintiff  before  entering  into  negotiations 
with  the  other  man  for  the  place.  The  em- 
ployment of  such  other  was  ratified  by  the 
principals  in  New  York.  Plaintiff  had  been 
out  of  employment,  at  the  time  of  the  trial, 
some  nine  months. 

Defendant's  explanation,  in  respect  to  fail- 
ure to  send  and  deliver  the  telegram  was  that 
it  occurred  by  reason  of  strike  disturbances 
and  interferences  which  ordinary  care  on  its 
part  under  the  circumstances  could  not  have 
prevented;  that  after  some  delay  the  operator 
at  St.  Louis  got  a  response  to  the  call  for  the 
Staunton  office,  whereupon  the  message  was 
put  upon  the  wire  and  its  receipt,  as  appear- 
ed was  duly  signalled  back. 

There  was  a  motion  for  a  directed  verdict 
in  defendant's  favor.  After  verdict  various 
motions  were  made  on  behalf  of  defendant 
and  denied,  which  will  be  referred  to  in  the 
opinion  so  far  as  necessary.  The  jury  found 
specially  that  the  message  was  delivered  to 
defendant  to  I>e  sent  plaintiff  under  the  cir- 
cumstances before  detailed;  that  plaintiff 
failed  to  obtain  the  situation  he  applied  for 
because  of  negligent  failure  of  defendant  to 
transmit  to  him  and  deliver  such  message; 
that  the  failure  was  not  solely  due  to  strike 
disturbance  and  that  plaintiff  was  damaged 
by  defendant's  neglect  in  the  sum  of  $800. 


*For  other  cues  lec  sam*  topic  and  section  NUMBKR  in  Dec.  &  Am.  Digs.  1M7  to  date,  *  Reporter  IndaxM 


Digitized  by 


L-oogle 


1034 


122  NOBTHWBSTEBN  BBPOBTEB. 


(Wte. 


Judgment  accordingly  was  rendered  In  plain- 
tiff's favor. 

MlUer,  Mack  ft  FalrcliUd  Cl^ullar  ft  Lo<^- 
ney  and  George  H.  Fearons,  of  counsel),  for 
appellant  James  D.  Shaw  and  Oscar  W. 
Kreatzer,  for  respondent 

MABSHALL,  J.  (after  stating  the  facts 
as  above).  The  conrt  Is  of  the  opinion  that 
the  Jndgment  must  be  affirmed. 

The  questions  raised  are  of  sncb  natnre 
that  it  Is  not  thought  best  to  write  any  ex- 
tended opinion  In  respect  to  them. 

The  damages  claimed  are  not  fatally  spec- 
ulative. The  question  on  that  subject  Is 
ruled  In  respondent's  favor  by  Bark»  ▼. 
Westnn  Unlcm  Tdegraph  Co.,  1S4  Wis.  147, 
114  N.  m  439,  14  li.  B.  A.  (N.  S.)  633,  126 
Am.  St  Bep.  1017,  and  similar  authorities. 

There  was  sufficient  evidence  to  carry 
the  case  to  the  Jury  as  to  each  Inquiry  In 
the  special  verdict  It  seems  needless  to 
review  the  record  and  point  out  that  which 
was  competent  as  to  each  particular  sub- 
ject and  the  reasonable  inferences  there- 
from. If  the  Jnry  were  warranted,  in  any 
reasonable  view  of  the  case  as  It  was  sub- 
mitted to  them.  In  reaching  the  condnsions 
embodied  In  the  special  verdict  that  ends 
the  matter  as  r^ards  the  facts. 

l^t  is  contoided  that  the  court  should  have 
charged  the  Jury,  as  requested,  that  re- 
spondent was  not  entitled  to  recover.  In  any 
event,  on  account  of  wages  which  he  would 
have  earned  after  May  20,  1006  (which  is 
aboat  the  date  of  the  trial),  had  the  tele- 
gram been  delivered  and  he  had  secured 
the  employment  to  which  It  related.  Ooun- 
sel  In  that  is  misled  by  the  law  in  respect 
to  recovery  on  an  employment  contract  In 
case  of  a  wrongful  refusal  of  the  employer 
to  carry  out  the  agreement  Then  wages 
lost  are  only  recoverable  up  to  the  time  of 
the  trial.  This  Is  not  such  a  case.  It  Is  an 
ordinary  action  for  damages  for  wrongful 
induct  preventing  respondent  from  obtain- 
ing employment  In  such  a  case  the  rea- 
sonable value  the  contract  would  have  net- 
ted to  the  person  Injured  had  the  breach  of 
duty  not  occurred  is  the  measure  of  dam- 
ages. It  Is  within  the  rule  for  the  recovery 
of  future  gains  prevented  so  far  as  a  fairly 
reasonable  basis  can  be  found  for  determin- 
ing them  with  reasonable  certainty,  found 
in  Salvo  T.  Duncan,  49  Wis.  151,  4  N.  W. 
1074;  Treat  y.  HUee,  81  Wis.  280,  60  N.  W. 
896;  Porstor,  Waterbnry  Co.  v.  F.  MacKin- 
non Mfg.  Co.,  180  Wis'.  281-291^  110  N.  W. 
226;  Bichey  v.  Union  C«itral  Life  Insurance 
Co.  (decided  herewith)  122  N.  W.  1030.  The 
rule  was  applied  In  Barlcer  v.  Western  Un- 
ion Tel.  Co.,  134  Wis.  147,  114  N.  W.  439t 
14  I/.  R.  A.  (N.  8.)  633,  126  Am.  St  Rep. 
1017. 

Error  Is  assigned  because  the  court  charg- 
ed the  Jury: 

"And  in  order  that  you  may"  find  that 
plaintiff  lost  the  situation  In  question  by 


reason  of  nondelivery  of  the  telegram  "you 
must  be  satisfied  and  convinced  by  a  pre- 
ponderance of  the  evidence  tliat  AlUs-Chal- 
mers  Oompany  had  authority  from  De  Sola 
Bros,  and  Pardo  to  enter  Oito  a  contract  of 
employment  for  them  with  the  plaintiff." 

It  is  argued  that  the  Instruction  involved 
a  snggestlon  tiiat  it  was  competent  for  the 
Jury  to  80  find  from  the  evidence,  whereas 
there  was  no  evidoice  of  authority  on  the 
question.  Ttie  mere  submission  of  the  ques- 
tion to  the  Jury  without  any  Instmctlon 
whatever  would  have  Involved  a  suggestion 
that  there  was  room  in  the  evidence  for  ■ 
finding  either  way.  Upon  no  other  theory 
was  thwe  a  Jury  question  on  the  subject 
To  merely  say  what  was  said  to  the  Jury 
did  not  Invade  their  province  In  the  slight- 
est degree.  Counsel  Is  wrong  In  the  cUilm 
that  there  was  no  evidence  on  the  question. 
The  fact  that  the  letter  written  by  respond- 
ent was  answered  through  Allis-Ghalmen 
Co.  suggested,  quite  strongly,  that  It  was 
authtHTlced  to  arrange  for  a  person  to  fill  the 
situation.  The  further  fact  that  the  com- 
pany did  so  and  their  action  was  ratified 
by  the  New  TOTk  parties  who  advertised, 
inviting  applications  for  the  situation,  was 
almost  if  not  conclusive  evidence  of  author^ 
Ity.  On  the  whole  there  was  ample  to  go 
to  the  Jury  In  respect  to  the  matter. 

Other  objections  to  the  trial  court's  in- 
structions are  suggested,  predicated  on  the 
theory  of  want  of  evidence  to  send  the  ques- 
tions to  which  such  Instructions  relate  to 
the  Jury.  We  will  not  discuss  them  in  de- 
tail, l^ey  are  all  suffldently  answered  by 
what  has  been  said. 

Exception  is  taken  to  the  court's  d^nitlon 
of  proximate  cause.  Such  exception  Is  with- 
out merit  Tiie  language  used  informed  tlie 
Jury  of  what  proximate  cause  is  in  the  ab- 
stract and  they  doubtless  took  it  that  way. 
It  was  copied  substantially  verbatim  from 
Delsenrleter  v.  Krans-Merkel  Malting  Co., 
07  Wis.  279,  72  N.  W.  736,  which  has  been 
approved  by  this  court  in  decisions  found  in 
every  volume  of  our  reports  for  the  past  12 
years.  As  has  often  been  said,  what  con- 
stitutes proximate  cause  In  the  law  of  neg- 
ligence Is  one  thing;  what  constitutes  the 
proximate  cause  In  the  given  case  is  anoth- 
er. The  former  Is  matter  of  law  for  the 
court;  the  latter  Is  matter  of  fact  for  the 
jury  to  find  under  proper  instructions,  which 
it  is  obligatory  for  the  court  to  give  when 
suitably  requested  and  wtaidi,  gmerally 
speaking,  ought  to  be  given  whether  request- 
ed or  not,  where  the  subject  Is  Involved,  but 
may  be  omitted  without  commission  of 
harmful  error,  if  error  at  all,  in  case  a 
proper  request  Is  not  made  The  court  here 
gave  correctly  the  definition  of  proximate 
cause.  True,  It  were  bettor  If  It  had  been 
phrased  to  fit  the  particnlar  facts  of  this 
case,  but  no  request  was  made  for  any  dif- 
ferent or  further  instruction. 

Several    other    exceptions    to    the    trial 


Digitized  by  LjOOQ  l€ 


wis.) 


SMITH  T.  CARTER. 


1035 


conrt'a  Inatracttons  are  iirged  upon  our  at- 
tention and  all  have  recelTed  consideration. 
It  la  considered  that  snch  exceptions  do  not 
merit  discussion  In  detalL  We  are  unable 
to  discover  fatal  error  In  any  of  them,  or 
anything  worthy  of  crittclsm  or  extended 
notice. 

E<rror  is  assigned  because  the  court  per- 
mitted the  evidence  to  be  introduced  of  one 
Harrison  who  acted  for  Allls-Chalmers  Go. 
in  hiring  a  mlUer  for  the  Venesuela  parties 
after  falling  to  secure  the  services  of  re- 
spondent Tlie  particular  portions  of  the 
evidence  claimed  to  have  been  improperly 
admitted  are  not  pointed  out  Pages  33  and 
34  of  the  printed  case  are  referred  to  gen- 
erally, which  we  do  not  And  to  contain  evi- 
dence given  by  Harrison.  It  contains  evi- 
dence given  by  one  Hoppin.  The  assign- 
ment of  error  is  presented  In  such  a  way 
that  It  cannot  be  considered.  Probably,  In 
any  event  the  evidence  counsel  had  tn 
mind  was  eith^  proper  or  not  harmfully 
Improper,  since  the  fact  appears  by  com- 
petent evidence,  that  the  Allls-Chalmers 
Company  in  fact  did  secure  a  miller  for  the 
Venezuela  mill,  and  he  was  accepted.  That 
was  the  material  circumstance  going  to 
show  authority  of  the  company  and  prob- 
ability that  respondent  through  it  would 
have  obtained  the  place  but  for  the  negli- 
gence complained  of. 

E!rror  Is  assigned  because  the  court  ad- 
mitted In  evidence  what  purported  to  be  a 
copy  of  a  letter  written  from  New  York  by 
the  principals  in  employing  the  miller  to 
Mr.  Harrison  of  the  Allls-Chalmers  Com- 
pany, at  Milwaukee,  thanking  the  company 
for  friendly  assistance  In  securing  one.  The 
copy  was  <mi  one  of  the  regular  letter  heads 
used  by  the  New  York  parties  and  the  ad- 
dressee testified  that  it  was  received  direct- 
ly from  them.  Under  those  circumstances 
it  seems  the  paper,  though  marked  "Copy" 
and  though  signed  with  a  stamp  instead  of 
In  writing,  was  competent  as  a  clrcnm- 
stance  bearing  on  whether  the  Allis-CSial- 
mers  Company  was  authorized  to  act  in  se- 
curing a  miller  for  the  Venezuela  mill. 

Some  other  rulings  on  the  admission  and 
rejection  of  evidence  are  discussed  by  coun- 
sel, which  do  not  seem  to  have  harmfully 
affected  the  appellant  In  any  reasonable 
▼lew  of  the  case. 

Judgment  affirmed. 


SMITH  V.  CARTER  et  al. 
(Supreme  Court  of  Wisconsin.    Oct.  26,  1909.) 
1.  Appeal  anu  BIbbob  (|  945»)—Revibw— Dis- 
cretion OF  Trial  Court. 

A  decision  of  the  trial  coart  based  on  dis- 
cretion cannot  be  set  aside  solely  for  the  reason 
that  the  Supreme  Court  might  not  have  reached 
the  «ame  conclusion. 

[Eld.  Note. — For  other  cases,  see  Appeal  and 
Bimr,  cent.  Dig.  $  8811 ;   Dec.  Dig.  |  945.»] 


2.  DisinssAL  AND  Nonsuit  (|  60»)— Involun- 
TABT  DisKissAL— Want  oir  Pbosiscution. 

It  is  the  duty  of  trial  courts  to  discourage 
protraction  of  litigation,  and  they  may  refuse 
aid  to  those  who  negligently  or  abasively  fall 
to  prosecute,  and  dismiss  their  actions  for  want 
of  prosecution. 

[Ed.  Note.— For  other  cases,  see  Dismissal  and 
Nonsuit  Cent  Dig.  |  140;    Dec.  Dig.  |  60.*] 

3.  Appeal  and  Ebrob  (g  962*)— Rbview— Dis- 
CRimoN  or  Court— Dismissal  fob  Want  of 
Pbosectjtion. 

Where  the  circuit  court  exercises  its  discre- 
tion in  dismissing  a  case  for  want  of  prosecu- 
tion, it  is  only  in  a  very  clear  case  of  abase 
that  the  Supreme  Court  should  reverse  it 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  I  3838;   Dec.  Dig.  |  962.*] 

Appeal  from  Circuit  Court  Rock  County; 
George  Orimm,  Judge. 

Action  by  Byron  O.  Smith  against  Cathe- 
rine B.  Carter,  executrix  of  Guy  Carter,  de- 
ceased, and  others.  The  action  was  dismiss- 
ed for  want  of  prosecution,  and  plaintiff 
appeals.    Affirmed. 

This  action,  commenced  in  August  1882, 
was  to  redeem  from  certain  mortgages  held 
by  one  Ouy  Carter  on  a  valuable  farm  which 
had  been  delivered  over  to  him  in  1872  to 
apply  the  rents  and  profits  to  the  taxes  and 
to  the  interest  and  principal  of  those  mort- 
gages; also,  to  clear  the  title  from  those 
mortgages  and  from  certain  tax  deeds  and 
Hens  thereon  fraudulently  acquired  by  said 
Carter,  who  had  died  shortly  before  the 
commencement  of  the  action.  The  case  was 
(January,  1883)  referred  to  one  Phelps  to 
hear,  try,  and  determine,  and  he  made  his 
report  In  1891.  Pretty  much  all  the 'circuit 
judges  of  the  Twelfth  judicial  circuit  for  the 
last  quarter  of  a  century  were  disabled  to 
act  In  the  case  by  reason  of  having  been  of 
counsel.  The  circuit  judge  of  the  First  cir- 
cuit seems  to  have  been  Invoked  to  hear  the 
motions  for  modification  and  confirmation 
of  this  referee's  report  and  the  argument 
of  those  motions  was  finally  had  In  1894. 
Oil  December  3D,  1901,  Judge  Fish,  having 
previously  given  a  written  opinion,  signed 
findings  and  order  modifying  the  report  of 
the  referee.  Such  findings  and  order  con- 
victed Guy  Carter  of  fraud  with  referoice 
to  the  acquirement  of  tax  liens,  of  refusal 
to  perform  his  duty  in  keeping  accounts 
and  not  applying  the  Income,  and  In  so  ob- 
structing the  plaintiff  in  an  opportunity  to 
sell  the  land  and  in  refusing  to  accept  a 
conveyance  at  a  given  price  in  liquidation  of 
his  mortgages  after  having  first  promised 
to  do  so  that  the  court  decided  he  was  en- 
titled to  no  Interest  after  1880,  the  date  of 
such  tendered  conveyance,  and  ordered  ap- 
plication of  sums  of  money  so  that  it  was 
obvious  thiat  the  mortgage  was  more  than 
satisfied  at  the  time  of  such  decision.  He 
also  in  said  order  directed  a  re-reference  to 
William  Ruger,  Esq.,  to  restate  the  account 
in  accordance  with  the  court's  decision,  and 


•For  otlitr  cue*  lea  same  topic  ud  lecUon  NVHBBB  in  Dec.  *  Am.  Digs.  1M7  to  date,  *  Beportar  Indexes 


Digitized  by  LjOOQ  l€ 


1036 


122  NORTHWESTERN  REPORTER. 


(Wis. 


to  take  an  acconnt  by  defendants  of  all  re- 
ceipts and  disbursements  with  reference  to 
tbe  farm  subsequent  to  tbe  prior  reference; 
they  having  continued  In  possession  and 'con- 
trol. There  appears  to  hare  been  no  attempt 
to  bring  official  notice  to  Mr.  Ruger  of  bis 
appointment  or  to  gain  bis  acceptance,  and,  as 
a  matter  of  fact,  It  was  linown  that  be  had 
been  consulted.  If  not  retained,  as  counsel 
for  certain  interests  In  the  litigation  at  the 
time  of  such  order  of  reference  or  after- 
wards. In  June,  1902,  tbe  defendants  moved 
to  set  aside  said  order  made  by  the  Judge  of 
the  First  circuit  for  the  reason  that  it  was 
wholly  without  jurisdiction,  it  having  been 
Signed  by  him  at  his  chambers  in  Racine  and 
physically  transmitted  to  tbe  clerk  of  the 
Rock  county  circuit  court  at  a  time  when 
he  was  not  presiding  in  that  court,  but  anoth- 
er judge  was.  This  motion  was  beard  before 
the  judge  of  the  Thirteenth  Judicial  circuit 
court,  who  on  December  2,  1902,  signed  and 
filed  an  order  that  the  motion  be  denied. 
This  seems  to  have  been  supplemented  or 
modified  by  an  order  on  December  15th  to 
the  same  effect,  except  that  It  awarded  mo- 
tion costs.  This  order  was  assailed  because 
without  Jurisdiction,  the  judge  having  signed 
it  at  a  time  when  he  was  In  Dodge  county, 
and  not  presiding  in  Rock  county.  This 
order  of  December  15,  1902,  never  reached 
the  files  of  tbe  circuit  court  of  Rock  county 
until  April  20,  1908,  when  it  was  found  in 
the  ofllce  of  one  of  the  plaintiff's  attorneys, 
and  so  filed.  A  motion  to  vacate  that  or- 
der was  overruled  in  December,  1903.  From 
that  tifae  until  the  13th  day  of  April,  1908, 
no  steps  were  taken  by  either  party  in  the 
case,  except  that  it  appears  certain  nego- 
tiations were  in  progress  to  fix  Interpartlss 
tbe  amounts  which  had  been  received  by  tbe 
defendant  subsequent  to  tbe  previous  account- 
ing, so  that  tbe  further  steps  might  be  entire- 
ly arithmetical,  which  negotiation,  however, 
came  to  naught  On  the  13th  of  April,  1908, 
defendants  moved  to  dismiss  the  action  be- 
cause of  onreasonable  delay  on  the  part  of 
the  plaintiff ;  that  more  than  two  years  have 
elapsed  since  the  date  of  the  referee's  report'; 
that  more  than  five  years  have  elapsed  since 
the  issue  was  Joined  in  November,  1882,  and 
the  action  had  not  been  brought  to  trial  for 
the  reason  that  tbe  plaintiff  had  ceased  to  be' 
the  real  party  in  interest;  that  he  failed 
to  prosecute  with  due  diligence;  that  the 
executors  of  Ouy  Carter  had  been  discharged 
as  such;  that  It  was  Inequitable  that  de- 
fendant should  be  further  harassed ;  and 
that  the  plaintiff  is  not  acUag  with  diligence 
or  in  good  faith,  and  that  there  is  no  equity 
in  plaintiff's  complaint,  and  that  he  had 
been  guilty  of  laches  and  bad  abandoned  the 
action.    That  motion  seems  to  have  been 


heard  upon  certain  affidavits  and  upon  the 
record  of  the  case  and  resulted  in  an  order 
on  May  5,  1908,  by  the  present  Judge  of  the 
Twelfth  circuit,  that  the  action  be  dismissed 
with  costs,  because  it  appeared  to  the  satis- 
faction of  the  court  that  plaintiff  bad  been 
guilty  of  unreasonable  neglect  and  Inexcusa- 
ble laches  in  the  prosecution  of  this  action. 
Prom  Judgment  pursuant  to  this  order  plain- 
tiff appeals. 

William  G.  Wheeler  and  William  Smith, 
for  appellant  Wilson  Lane  and  Ruger  & 
Ruger,  for  respondents. 

DODGE,  J.  (after  stating  the  facts  as 
above).  In  the  record  of  this  case,  which  has 
witnessed  the  demise  of  at  least  five  circuit 
judges  connected  therewith  and  of  the  ref- 
eree who  tried  it,  the  circuit  court  found 
evidence  of  such  laches  and  neglect  on  the 
part  of  tbe  plaintiff  as  In  Its  judgment  ren- 
dered it  improper  that  the  action  should 
further  cumber  tbe  dockets,  obstruct  other 
business,  and  harass  the  defendants.  While 
there  are  apparent  many  acts  on  the  part  of 
the  defendants  tending  to  excuse  some  of  the 
periods  of  delay,  and  while  dilatory  action 
on  the  part  of  the  court  itself  may  explain 
some,  yet  there  are  other  periods  of  much 
length  during  which  plaintiff  has  undoubted- 
ly refrained  from  any  active  diligence  to 
bring  the  litigation  to  a  conclusion.  All 
these  considerations  were  before  the  trial 
court,  with  much  evidence  as  to  the  conduct 
of  the  parties,  some  of  it  In  conflict  some  of 
it  uncertain  and  ambiguous,  from  which  dif- 
ferent Inferences  might  be  drawn.  Even  if 
we,  as  an  original  proposition,  might  not 
have  reached  the  same  conclusion,  we  cannot 
for  that  reason  alone  set  aside  the  decision 
of  the  trial  court  rendered  in  the  field  of 
its  broad  discretion  over  the  condoct  of  cas- 
es. Protraction  of  litigation  may  be  a  serious 
abuse,  and  it  is  the  duty  of  trial  courts,  in- 
dependently of  statute  and  under  inherent 
powers,  to  discourage  it  as  much  as  possible 
and  to  refuse  their  aid  to  those  who  negli- 
gently or  abusively  fall  to  prosjscute  tbe  ac- 
tions which  they  commence.  Williams  v.  Wil- 
liams, U7  Wis.  125,  94  N.  W.  25;  Saveland 
V.  Connors,  121  Wis.  28,  98  N.  W.  933.  When 
the  circuit  court  exercises  Its  judgment  and 
discretion  to  this  end,  it  is  only  In  a  very 
clear  case  of  abuse  that  this  court  should 
reverse  It  We  cannot  feel  that  such  clear 
case  of  abuse  of  discretion  Is  here  presented. 
It  seems,  too,  that  section  2811,  St  1898,  de- 
clares a  legislative  policy  to  the  effect  that 
five  years  of  neglect  to  bring  to  trial  an  Issue 
Joined  shall  result  in  dismissal.  Here  Issues 
were  framed  in  1901  by  tbe  order  then  made^ 
and  have  not  yet  been  brought  to  trial. 

Judgment  affirmed. 


Digitized  by  LjOOQIC 


WlL) 


J.  L  CASE  THBESHmG  MACH.  CO.  ▼.  JOHNSON. 


1037 


J.  I.  CASE  THRESHING  MACH  CO.  t. 

JOHNSON. 

(Supreme  Court  of  WisconslD.    Oct.  26,  1909.) 

1.  CONTRACtB   (i  803*)— EXCUSX  rOB   NONFXB- 
TOBUANCI. 

The  positive  declaration  by  one  party  of  a 
determination  which  wonld  render  a  prescribed 
act  by  the  other  futile  excuses  a  spediied  per^ 
formance  or  tender  thereof. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent.  Dig.  S|  1430-1432 ;   Dec.  Dig.  {  808.*] 

2.  Sales  ({  124*)— Rescissiok  fob  Bbeach  of 
Wabrantt— Condition  Pbecedert. 

Where  a  seller  clearly  declares  to  a  buyer 
his  determination  to  insist  on  the  sufficiency  of 
a  machine  sold  him,  and  refuses  to  accept  its 
return  in  any  way,  the  buyer  need  not  pursuant 
to  the  contract  return  it  to  the  place  where  re- 
ceived as  a  condition  precedent  to  his  right  to 
rescind  for  breach  of  warranty. 

[Ed.  Note. — For  other  canes,  see  Sales,  Cent. 
Dig.  S  308;   Dec.  Dig.  |  124.»] 

8.  Appeal  and   Ebror   (g  1010*)— Review- 
Findings  OF  TBIAL'COUBT. 

Where  a  finding  as  to  the  authority  of  a 
general  agent  is  supported  bv  uncontradicted 
evidence  against  his  principal,  it  will  be  adhered 
to  on  appeal  in  determining  whether  the  prin- 
cipal is  bound  thereby. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  |  3979;  Dec  Dig.  i  1010.*] 

4.  Appeal  and  Ebrob  (|  1012*)  —  Review — 

Findings  of  Tbial  Coubt. 

Where  the  evidence,  though  ambiguous,  pre- 
ponderantly supports  the  view  of  the  trial  court 
as  to  a  material  fact,  its  conclusiota  will  be  ac- 
cepted on  appeal. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  i  3990;  Dec.  Dig.  f  1012.*] 

Appeal  from  Circuit  Coort,  Waakesba 
Coant7;   Martin  L.  Lueclc,  Judge. 

Action  by  tbe  J.  I.  Case  Threshing  Ma- 
chine Company  against  Charles  A.  Johnson. 
From  a  Judgment  for  defendant,  plaintiff  ap- 
peals.   Aflirmed. 

Action  on  two  promissory  notes  given  by 
defendant  for  a  corn  busker  and  shredder 
manufactured  by  the  plalntiflC  under  an  or- 
der containing  a  warranty  as  to  quality  and 
efflcacy,  but  conditioned  that,  in  case  of  fail- 
ure to  comply  with  the  warranty,  the  plain- 
tllt  should  have  opportunity  to  supply  any 
defective  parts  and  to  make  all  reasonable 
efforts  to  remedy  the  dlflSculty,  the  buyer  to 
render  necessary  and  friendly  assistance, 
and,  if  then  it  cannot  be  made  to  fill  the 
warranty,  the  part  that  falls  to  work  should 
be  returned  by  the  purchaser  free  of  charge 
to  the  place  where  received  and  the  company 
notified  thereof,  and,  at  the  seller's  option, 
another  substituted  therefor  that  shall  fill 
the  warranty,  or  the  notes  and  money  paid 
should  be  returned  and  the  contract  rescind- 
ed and  no  further  claim  made.  The  defend- 
ant upon  trial  was  unable  to  make  the  ma- 
chine do  as  good  work  as  guaranteed;  one 
of  tbe  serious  difficulties  being  the  tendency 
of  parts  to  work  loose  In  course  of  the  use 
of  the  machine.  Two  or  three  attempts  to 
make  it  satisfactory  were  made  with  the 


claim  on  part  of  plaintiff's  representatives 
that  the  result  had  been  accomplished,  and 
insistence  on  tbe  part  of  defendant  that  even 
the  degree  of  efficiency  which  had  been  ac- 
complished'by  the  experts  disappeared  with 
a  very  brief  operation  of  the  machine.  Final- 
ly, after  being  quite  thoroughly  convinced 
that  the  machine  was  not  ap  to  warranty, 
defendant  was  induced  by  the  general  agent 
of  the  company  to  permit  one  more  effort 
on  plaintiff's  part  to  make  it  satisfy  the 
warranty,  and  accordingly  an  expert  was 
sent  and  worked  over  and  with  the  machine 
a  day  or  two,  until  Saturday  the  24th  day  of 
November,  when  the  expert  went  away, 
claiming  that  the  machine  worked  satisfac- 
torily. It'  was  then  set  up  and  In  process 
of  a  job  for  one  Cook.  An  attempt  was 
made  to  work  the  machine  Saturday  after- 
noon, and  again  through  the  forenoon  of 
Monday,  although  defendant  asserts  that  he 
was  not  satisfied  that  It  would  work  accord- 
ing to  the  warranty  when  the  expert  left 
at  noon  of  Saturday.  At  noon  Monday  all 
attempt  to  use  the  machine  was  abandoned, 
the  defendant  procured  another  to  do  the 
work  he  had  engaged,  and  on  November  27tb 
wrote  the  plaintiff's  general  agent  that  he 
could  not  make  tbe  machine  come  up  to  the 
warranty,  and  was  through  with  It,  and 
closed  with  the  words,  "So  you  can  let  me 
know  when  you  want  to  ship  it,  and  please 
return  my  notes."  To  this  the  plaintiff  re- 
plied, asserting  that  it  was  convinced  that 
the  machine  worked  up  to  the  warranty,  and 
that  It  had  done  all  required  on  Its  part,  and 
that,  tf  there  was  any  trouble  with  the  work- 
ing of  the  machine,  It  was  due  to  defend- 
ant's operation  of  it,  and  said:  "Under  these 
circumstances  we  cannot  consider  the  return 
of  the  machine."  Defendant  did  not  return 
the  machine  to  Hartland  railroad  station, 
where  it  was  received,  but  stored  It  on  the 
farm  of  a  neighbor,  where  it  has  remained 
ever  since.  The  court  found  substantially 
these  facts,  and  refused  to  find  that  defend- 
ant continued  to  use  the  machine  after  his 
final  determination  to  reject  It  as  not  com- 
plying with  the  warranty ;  that  the  absolute 
refusal  of  the  plaintiff  to  accept  return  of 
the  machine  absolved  d^endant  from  the 
duty  of  delivering  it  at  the  railroad  station 
where  obtained.  Judgment  was  rendered  dis- 
missing the  complaint,  from  which  plaintiff 
appeals. 

Cary,  Upham  &  Black  and  John  J.  Cook, 
for  appellant  Ryan,  Merton  &  Newbury,  for 
respondent 

DODGE,  J.  (after  stating  the  facts  as 
above).  The  appellant  contends  against  the 
Judgment  that  defendant's  right  to  rely  upon 
breach  of  warranty  was  by  tbe  express  terms 
of  the  contract  dependent  upon  return  of 
the  machine  tO  the  place  where  received. 


•Por  otiiar  esses  ■••  lama  topic  snd  isctton  NUMBBB  In  Dse.  *  Am.  Digs.  1807  to  data,  *  Bsportsr  Indexei 


Digitized'by  LjOOQ  l€ 


103d 


122  NORTHWESTERN  REPORTER. 


CWto. 


whidi  confessedly  never  took  place.  But  It 
Is  found  and  established  without  dispute  that 
the  defendant,  when  finally  convinced  of  the 
defective  character  of  the  machine,  notified 
plaintiff  of  that  fact  and  asked  its  pleasure 
as  to  the  time  of  returning  It,  Implying  his 
readiness  to  make  such  return  according  to 
the  terms  of  the  contract  To  this  the  com- 
pany, through  Its  general  agent,  declared  Its 
determination  to  Insist  on  the  sufficiency  of 
the  machine  and  to  refuse  to  accept  Its  re- 
turn in  any  way.  It  Is  a  rule  of  law  thor- 
oughly established  by  many  decisions  that 
the  positive  declaration  by  one  party  of  a 
determination  which  would  render  a  pre- 
scribed act  by  the  other  futile  excuses  a 
specified  performance  or  tender  of  that  act 
Guetzkow  V.  Mut  Life  Ins.  C3o.,  105  Wis. 
448,  451,  81  N.  W.  652 ;  Langnecker  v.  Trus- 
tees, 111  Wis.  279,  87  N,  W.  293,  65  L.  R,  A. 
185,  87  Am.  St  Rep.  860;  Wuerfler  v.  Trus- 
tees, 116  Wis.  19,  92  N.  W.  433,  96  Am.  St 
Rep.  940;  Swanke  v.  Herdemann  (Wis.)  120 
N.  W.  414.  Clearly  the  declaration  of  plain- 
tiff's position  that  defendant  had  no  right 
to  surrender  back  the  machine  served  to  ren- 
der any  deposit  thereof  at  the  depot  In  Hart- 
land  futile  and  unreasonable  and,  we  con- 
clude, absolved  him  from  the  x)erformance 
of  that  as  a  condition  of  his  right  to  re- 
scind for  breach  of  warranty. 

It  Is  further  contended  In  this  connection 
that  the  authority  of  the  general  agent  to 
waive  any  of  the  terms  of  the  contract  Is 
not  shown,  and  Is  contradicted  by  the  writ- 
ing Itself,  which  declares  that  no  person  "has 
authority  to  waive,  alter,  or  enlarge  this 
contract  or  to  make  any  new  or  substituted 
or  different  contract,  representation,  or  war- 
ranty. Salesmen,  mechanics,  or  experts  are 
not  authorized  to  bind  the  company  by  any 
act,  contract,  or  statement"  There  Is  some 
evidence  of  very  general  scope  of  the  author- 
ity of  the  general  agent  In  deciding  and  de- 
claring the  attitude  of  the  company  with 
reference  to  this  machine  and  the  plaintiff 
wholly  refrained  from  offering  any  In  con- 
tradiction of  such  authority.  The  court  has 
found  that  the  plaintiff  company  acted  In 
this  declaration  made  by  Its  general  agent, 
and  we  think  such  finding  has  support  In 
the  evidence  offered  by  the  defendant  which 
the  plaintiff  did  not  see  fit  to  contradict 
We  therefore  conclude  that  defendant's  fall- 
are  to  actually  transport  the  machine  and 
leave  It  at  Hartland  Is  not  an  obstacle  to  his 
defense  In  this  case. 

2.  It  Is  further  contended  that  defendant, 
after  having  finally  decided  that  the  ma- 
chine was  defective  and  did  not  satisfy  the 
warranty,  made  use  of  It  for  his  own  benefit 
for  parts  of  two  days,  and  therefore  Is  pre- 
cluded from  rescinding  the  contract  for 
breach  of  warranty.  Rules  of  law  govern- 
ing this  subject  were  laid  down,  in  the  light 
of  nnmerons  citations.  In  Fox  v.  Wilkinson, 


138  Wis.  337,  113  N.  W.  660,  14  L.  R.  A. 
(N.  S.)  1107.  The  trial  court  evidently  con- 
sidered that  the  use  made  of  the  machine 
by  defendant,  after  plaintiff's  last  ^ort  to 
make  it  satisfy  the  warranty,  was  only  by 
way  of  reasonable  test,  for  he  refused  to 
find  that  It  was  an  appropriation  of  the  ma- 
chine to  defendant's  own  use  and  benefit  con- 
sistent only  with  the  attitude  of  ownnshlp. 
The  evidence,  while  perhaps  ambiguous,  pre- 
ponderantly supports  the  former  view. 
There  Is  in  such  conduct,  therefore,  no  ob- 
stacle to  defendant's  subsequent  readsBlou  of 
the  contract  of  purchase. 
Judgment  affirmed. 


O'CONNOR  V.  QUEEN  INS.  CO.  OF 

AMERICA. 

(Supreme  Court  of  Wisconsm.    Oct  26,  1909.) 

1.  Insubancb  d  421*)  —  What  CoNsiTfuiicB 

"FiRB." 

A  fire  in  a  furnace  of  material  bo  high- 
ly inflammable  in  character  as  to  cause  such  vol- 
uiftes  of  heat  and  smoke  to  escape  through  the 
registers  into  the  rooms,  damaging  the  house  and 
fumituie,  though  without  ignition  outside  of 
the  furnace,  is  a  "fire"  within  a  policy  of  in- 
surance against  "direct  loss  or  damage  by  fire." 

[Ed.  Note.— For  other  cases,  see  Insurance, 
Dec.  Dig.  i  421.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  8,  pp.  2814-28ia] 

2.  iNsuBAirox  (S  668*)— Causs  or  Loss— Qubs- 
TiON  TOB  Court  or  Jubt. 

Though  ordinarily  whether  the  damage  to 
insured  property  was  caused  by  a  fire  within 
the  policy  is  a  question  tor  the  Jury,  where  the 
evidence  is  practically  undisputed,  the  determi- 
nation of  the  question  by  the  court  is  not  error. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Dec.  Dig.  I  66&*] 

Marshall,  X,  dissenting  in  part 

Appeal  from  Municipal  Court,  Outagamie 
County;   T.  H.  Ryan,  Judge. 

Action  by  D.  J.  O'Connor  against  the 
Queen  Insurance  Company  of  America.  From 
a  judgment  for  plaintiff,  defendant  appeals. 
Affirmed. 

Action  upon  a  fire  Insurance  policy.  The 
servant  of  plaintiff  built  a  fire  In  the  furnace 
with  paper  and  cannel  coal,  not  used  or  in- 
tended to  be  used  for  such  pnrpose,  whldi 
fire  developed  within  a  few  moments  to  Boch 
a  degree  of  fury'  as  to  fill  the  house  with 
great  volumes  of  smoke,  soot,  and  ezceaslve 
and  Intense  heat  and  damage  the  personal 
property  therein  to  the  amount  as  found  by 
the  jury  $562.  The  only  question  submitted 
to  the  Jury  was  the  amount  of  damages,  and 
the  court  directed  a  verdict  for  the  plaintiff 
for  the  amount  of  damages  found  by  the 
jury.  Judgment  was  entered  for  plaintiff  ac- 
cordingly, from  which  this  appeal  was  taken. 

D.  O.  Classon  (Bates,  Harding,  Edgerton  ft 
Bates,  of  counsel),  for  appellant  Francis  8. 
Bradford,  for  respondent 


•ror  otbn  mums  sm  sun*  topic  and  tectlon  NUHBEiR  In  Dec.  ft  Am.  Digs.  U07  ts  data,  ft  Beportw  ladazei 


Digitized  by  LjOOQ  l€ 


Wli.) 


O'CONNOR  ▼.  QUEEN  1N8.  CO. 


1039 


KERWIN,  J.  (after  stating  the  facte  as 
above).  The  policy  In  tbls  case,  being  tlie 
Wisconsin  standard  form,  Insured  the  plain- 
tiff "against  all  direct  loss  and  damage  by 
Are";  and  the  controversy  is  as  to  whether 
the  loss  and  damage  was  caused  by  anything 
insured  against  by  the  defendant  company. 
The  question  arises  whether  the  fire  which 
caused  the  damage  was  a  flre  within  the 
meaning  of  the  policy.  The  plaintiff  lived  in 
a  rented  house  heated  by  a  furnace.  His 
servant  built  a  fire  in  the  furnace  of  mate- 
rial not  for  use  therein  or  intended  so  to  be 
used,  and  of  such  a  highly  inflammable  char- 
acter as  to  cause  Intense  heat  and  great  vol- 
umes of  smoke  to  escape  through  the  regis- 
ters leading  into  the  rooms,  and  greatly  dam- 
age plaintiff's  property.  The  heat  was  so 
intense  as  to  char  and  injure  furniture,  and 
the  great  volumes  of  smoke  and  soot  greatly 
Injured  the  furnishings  and  personal  prop- 
erty of  the  plaintiff.  It  does  not  appear  from 
the  evidence  that  there  was  any  Ignition  out- 
side of  the  furnace,  although  the  flre  was  so 
intense  as  to  overheat  the  chimney  and  flues, 
and  char  furniture  in  the  rooms.  The  evi- 
dence shows  that  the  chimney  was  so  hot  It 
seemed  as  though  it  was  on  flre,  that  the 
flre  was  burning  fiercely  in  the  furnace, 
around  the  mop  boards  was  burned,  and  the 
mop  boards  blistered,  the  wall  paper  charred 
and  burned,  and  the  chimney  cracked  from 
the  excessive  heat  It  Is  the  contention  of 
appellant  that  the  damage  occasioned  by 
heat,  smoke,  and  soot  is  not  covered  by  the 
policy  where  the  fire  is  confined  within  the 
furnace.  This  position  involves  the  construc- 
tion of  the  words  of  the  policy  "direct  loss 
or  damage  by  fire,"  and  leads  to  a  aonsldera- 
tlon  of  what  fires  are  within  the  contempla- 
tion of  the  policy.  No  limitation  is  placed 
upon  the  word  "flre"  by  the  language  of  the 
policy  itself,  but  It  is  said  that  "contracts  of 
insurance  are  to  be  construed  according  to 
the  sense  and  meaning  of  the  terms  which 
the  parties  have  used,  and,  it  they  are  clear 
and  unambiguous,  the  terms  are  to  be  taken 
and  understood  In  their  plain,  ordinary,  and 
proper  sense."  No  doubt  this  is  the  general 
rule,  but  it  must  also  be  remembered  in  ap- 
plying the  rule  that  this  and  other  conrte 
have  construed  contracts  of  insurance  favor- 
ably to  the  insured.  Karow  et  al.  v.  Con- 
tinental F.  Ins.  Ck>.,  57  Wis.  66,  15  N.  W. 
27,  46  Am.  Rep.  17 ;  Brady  v.  North  Western 
Ins.  Co.,  11  Mich.  425;  May  on  Insurance  (3d 
Ed.)  402;  Peters  et  al.  v.  Warren  Ins.  Co.,  14 
Pet  99,  10  L.  Ed.  371.  Appellant  Insists  that 
a  flre  confined  within  the  limits  of  a  furnace, 
although  producing  damage  by  smoke  and 
heat,  is  DOt  a  flre  within  the  meaning  of  the 
policy  In  question,  and  relies  mainly  upon 
the  case  of  Austin  t.  Drew,  4  Camp.  361.  In 
that  case  the  plaintiff  was  the  owner  of  a 
sugar  factory  several  stories  high  with  pans 
on  the  ground  floor  for  boiling  sugar  and  a 
stove  for  beating.     A  flue  extended  to  the 


top  of  the  building  with  registers  on  each 
floor  connecting  with  the  flue  to  introduce 
heat.  Because  of  the  negligence  of  a  servant 
in  not  opening  a  register  at  the  top  of  the 
flue,  or  chimney,  used  to  shut  in  the  heat 
during  the  night,  the  smoke,  sparks,  and  heat . 
from  the  stove  were  intercepted,  and,  instead 
of  escaping  through  the  top  of  the  flue,  were 
forced  into  the  rooms,  in  consequence  of 
which  the  sugar  was  damaged.  The  flames 
were  confined  within  the  stove  and  flue,  and 
no  actual  ignition  took  place  outside  thereof, 
and  it  was  held  that  the  loss  was  not  covered 
by  the  policy.  The  Lord  Chief  Justice  said 
that  there  was  no  more  fire  than  always  ex- 
isted when  the  manufacture  was  going  on, 
and  which  continued  to  bum  without  any  ex- 
cess. The  case  seems  to  turn  upon  the  point 
that  the  fire  was  the  usual  and  ordinary  fire, 
never  excessive  and  always  confined  within 
its  proper  limits.  We  shall  briefly  refer  to 
other  cases  cited  by  appellant  on  this  point. 
In  German  American  Ins.  Co.  ▼.  Hyman, 
42  Colo.  156,  94  Pac.  27,  16  I*  R.  A.  (N.  S.) 
77,  the  loss  was  caused  by  an  explosion  pro- 
duced by  lighting  a  match,  where  the  policy 
contained  a  provision  that  the  Insurers  should 
not  be  liable  for  loss  by  explosion  unless  fire 
ensues,  and  in  that  event  for  the  damage  by 
fire  only.  Samuels  v.  Continental  Ins.  Co.,  2 
Pa.  Dist.  R.  397,  was  a  claim  for  damages 
caused  by  smoke  and  soot  from  a  lamp  whose 
flame  flared  up  above  the  lamp.  United  L. 
F.  &  M.  Ins.  Co.  V.  Foote  et  al.,  22  Ohio  St 
340,  10  Am.  Rep.  735,  was  a  case  of  explo- 
sion excepted  from  the  policy,  and  it  was 
held  that  the  flre  was  caused  by  the  explo- 
sion; therefore  the  loss  was  occasioned  by 
explosion.  Renshaw  v.  Fireman's  Ins.  Ck>., 
33  Mo.  App.  394,  is  also  an  explosion  case 
caused  by  ignition  from  a  burning  gas  Jet, 
and  it  was  held  that,  where  the  explosion  is 
the  direct  result  of  the  antecedent  fire,  the 
policy  covers  it,  but  where  the  explosion  is 
not  occasioned  by  the  fire,  there  is  no  liabil- 
ity for  the  result  of  the  explosion.  In  the 
one  case  the  fire  causes  the  explosion,  and  in 
the  other  the  explosion  causes  the  fire. 
Briggs  et  aL  v.  North  A.  ft  M.  Ins.  Co.,  53 
N.  Y.  446,  is  a  case  where  the  explosion  was 
before  the  flre,  and  not  caused  by  the  flre. 
Transatlantic  F.  Ins.  Co.  v.  Dorsey,  56  Md. 
70,  40  Am.  Rep.  403,  was  a  case  of  explosion, 
and  the  main  question  was  whether  the  flre 
was  the  direct  cause  of  the  explosion.  1 
Wood  on  Insurance  (2d  Ed.)  |  103,  it  is  true 
lays  down  the  general  rule  that  no  liability 
arises  where  the  flre  is  conflned  within  the 
limits  of  the  agencies  employed,  referring  to 
the  case  of  Austin  v.  Drew,  supra,  with  the 
observation  that  the  doctrine  of  that  case 
had  been  considerably  misconceived  by  courts 
and  text-writers.  Gibbons  v.  German  Ins.  ft 
S.  I.,  SO  IlL  App.  263,  was  a  case  of  damage 
caused  by  the  escape  of  steam.  (Tase  v.  Hart- 
ford F.  Ins.  Ck).,  13  III.  676,  discusses  Austin 
V.  Drew,  4  Camp.  361,  and  discards  the  Idea 


Digitized  by 


L-oogle 


1040 


122  NORTHWESTERN  REPORTER. 


(Wl«. 


that  there  can  be  no  loss  by  fire  without  ac- 
tual Ignition.  Mlllandon  v.  New  Orleans  Ins. 
Co.,  4  La.  Ann.  15,  50  Am.  Dec.  550,  Is  a  case 
where  the  damage  was  caused  by  the  explo- 
sion of  a  steam  boiler,  while  in  Waters  t. 
Merchants'  L.  Ina  Co.,  11  Pet  213,  9  L.  Ed. 
(t91,  an  explosion  of  gunpowder  Is  held  to 
be  a  loss  by  fire  where  the  thing  exploded 
was  on  fire.  American  Towing  Co.  v,  Ger- 
man F.  Ins.  Co.,  74  Md.  25,  21  AU.  553,  was 
a  case  of  orerheated  boiler  owing  to  the  ab- 
sence of  water.  Austin  t.  Drew,  supra,  is 
referred  to,  and  it  was  held  damage  not  cov- 
ered by  the  policy.  Cannon  v.  Phoenix  Ins. 
Co.,  110  Ga.  563,  35  S.  E.  775,  78  Am.  St 
Rep.  124,  is  a  case  where  the  fire  was  an  or- 
dinary fire  in  a  store.  The  fire  was  what  is 
termed  in  law  books  a  "friendly,"  and  not  a 
"hostile,"  fire.  In  this  case  the  stovepipe  be- 
came disarranged,  and  smoke  and  soot  es- 
caped, together  with  the  water  used  in  cool- 
ing the  celling,  causing  the  damage;  Austin 
V.  Drew,  supra,  is  cited  in  support  of  the 
opinion.  It  will  be  seen  from  the  foregoing 
cases  relied  upon  by  appellant  that  the  cases 
In  this  country  In  any  way  tending  to  support 
appellant's  contention  rest  upon  the  doctrine 
of  Austin  ▼.  Drew,  which  has  not  been  ex- 
tended, but  limited  to  the  particular  facts 
of  the  case,  and  the  doctrine  enunciated 
therein  criticised  In  some  well-considered 
cases. 

We  shall  briefly  refer  to  some  of  the  au- 
thorities. At  page  929,  §  402,  Mr.  May  In  his 
work  on  Insurance  discusses  the  doctrine  laid 
down  in  Austin  t.  Drew,  and  concludes  that, 
if  the  doctrine  in  that  case  is  Intended  to  go 
farther  than  the  facts  of  the  case,  it  has  been 
deemed  not  to  be  good  law  by  every  high  au- 
thority. In  Scripture  v.  Lowell  M.  F.  Ins. 
Co.,  10  Cush.  (Mass.)  356,  57  Am.  Dec.  Ill, 
the  doctrine  of  Austin  t.  Drew  is  explained, 
and  the  court  says  that  lack  of  study  of  the 
case  by  courts  and  text-writers  has  caused 
it  to  be  misapplied,  and  refers  to  the  lan- 
guage of  the  Chief  Justice  in  Austin  t.  Drew, 
to  the  effect  that  the  fire  was  an  ordinary 
one,  and  no  more  than  always  existed  when 
the  manufacturing  was  going  on.  Singleton 
et  al.  V.  Phenix  Ins.  Co.,  132  N.  Y.  298,  30  N. 
E.  839,  is  a  case  where  a  boat  was  loaded 
with  quicklime  in  barrels.  The  boat  was 
found  to  be  on  fire  through  the  slacking  of 
the  lime.  It  was  towed  into  the  river  and 
sunk  to  prevent  total  destruction.  It  was 
claimed  that  some  water  in  the  boat  must 
have  caused  the  slacking  of  the  lime;  held, 
that  the  loss  was  by  fire  within  the  meaning 
of  the  policy.  Further  Intimated  that  it  may 
not  be  necessary  to  show  actual  ignition  or 
combustion  to  establish  a  loss  by  fire.  In 
Way  v.  Ablngton  M.  F.  Ins.  Co.,  160  Mass.  67, 
43  N.  E.  1032,  32  L.  R.  A.  608,  55  Am.  St 
Rep.  879,  fire  in  the  stove  ignited  the  soot 
in  the  chimney,  and  the  smoke  and  soot  from 
the  burning  chimney  escaped  into  the  room 
and  damaged  property.  Held,  that  such 
damage  was  covered  by  the  policy  insuring 


against  all  loss  or  damage  by  fire.    The  case 
seems  to  have  turned  upon  the  fact  that  tJie 
fire  in  the  chimney  was  a  "hostile"  fire;  there- 
fore the  damage  caused  by  such  fire  was  cov- 
ered by  the  policy.    In  Lynn  G.  *  B.  Co.   v. 
Meriden  F.  Ins.  Co..  158  Mass.  570,  35  N.    EI. 
690,  20  L.  R.  A.  297,  35  Am.  St  Rep.  540,    it 
was  held  under  an  insurance  policy  against 
loss  or  damage  by  fire  that  damage  to  ma- 
chinery in  a  part  of  the  building  not  reached 
by  the  fire  caused  by  short  circuiting  of  elec- 
tric current  was  covered  by  the  policy.     It 
was  further  held  that  the  fire  was  the  direct 
and  proximate  cause  of  the  damage  under 
ttie  words  of  the  policy  "direct  and  proximate 
cause."    In  California  Ins.  Co.  v.  Union  C. 
Co.,  133  U.  S.  387,  10  Sup.  Ct  865,  33  L.  Ed. 
730,  the  words  of  a  policy  "direct  loss  or  dam- 
age by  fire"  are  defined  to  mean  loss  or  dam- 
age occurring  directly  from  fire  as  the  de7 
stroylng  agency  in  contradistinction  to  tlie 
remoteness  of  fire  as  such  agency.    In  Ger- 
man American  Ins.  Co.  r.  Hyman,  42  Colo. 
156,  94  Paa  27,  16  L.  R.  A.  (N.  &)  77,  under 
an  insurance  policy  providing  that  the  insur- 
er would  not  be  liable  for  loss  by  explosion. 
It  was  held  that  if  the  fire  precedes  the  ex- 
plosion, and  the  latter  is  an  incident  of  the 
former  and  caused  by  It  the  Insured  may  re- 
cover for  his  entire  loss,  but  if  the  explosion 
precedes  the  fire,  and  is  not  caused  by  it,  the 
insured  can  only  recover  for  the  loss  by  fire. 
In  Russell  v.  German  F.  Ins.  Co.,  100  Minn. 
528,  111  N.  W.  403,  10  h.  R.  A.  (N.  S.)  326, 
it  is  held  that,  to  render  a  fire  the  Immediate 
or  proximate  cause  of  the  loss  or  damage,  it 
is  not  necessary  that  any  part  of  the  Insured 
property  actually  ignited  or  was  consumed  by 
fire.    In  Ermentrout  et  al.  v.  Glrard  F.  &  M. 
Ins.  Co.,  63  Minn.  305,  65  N.  W.  635,  30  L.  R. 
A.  346,  56  Am.  St  Rep.  481,  the  case  was  on  a 
policy  Insuring  plaintiff  "against  all  direct 
loss  or  damage  by  fire,"  and  the  policy  fur- 
ther provided  that  If  the  building  fell  "ex- 
cept as  result  of  fire,"  the  Insurance  on  the 
building  should  immediately  cease.     There 
was  evidence  tending  to  prove  that  a  building 
adjacent  to  the  one  insured  caught  fire  and 
was  partially  consumed,  and  as  a  result  of 
such  fire  feU,  carrying  down  with  It  a  parti- 
tion wall  and  a  part  of  the  insured  building. 
Held,  that  the  fall  of  the  insured  building 
was  "the  result  of  fire"  and  "a  direct  loss  or 
damage  by  fire,"  although  no  part  of  it  Ignit- 
ed or  was  consumed  by  fire.    Cameron  In  his 
work  on  the  Law  of  F^re  Insurance  in  Canada, 
p.  51,  discusses  the  effect  of  the  word  "direct" 
in  policies  providing  against  "direct  loss  or 
damage  by  fire,"  and  says  that  the  word  has 
no  significance  or  value,  'and  whether  used 
or  not  the  fire  must  be  the  proximate  cause 
of  the  loss  or  damage.    See,  also,  Richards  on 
Insurance  Law  (3d  Ed.)  |  231,  where  It  is 
said  that  the  word  "direct"  in  a  jwlicy  means 
immediate  or  proximate  as  distinguished  from 
remote,  but  that  the  proximate  results  of  fire 
may  Include  other  things  than  combustion,  as, 
for  example,  the  resulting  fall  of  a  building. 


Digitized  by  VjOOQ  l€ 


■wis.) 


BBRO  V.  TOWN  OP  AUBURN. 


1041 


injuries  to  Insured  property  by  water,  loss  of 
goods  by  theft,  exposure  of  goods  during  fire. 
See,  also,  Elliott  on  Insurance,  |  221,  and 
Clement  on  Fiie  Insurance  as  a  Valid  Con- 
trart,  pp.  84-87. 

The  foregoing  cases,  we  think,  fully  show 
that  Austin  t.  Drew  is  not  authority  against 
plaintlfT  here.  There  the  flre  was  under  con- 
trol, not  excessive,  and  suitable  and  proper 
for  the  purpose  intended.  It  was  in  the  lan- 
guAge  of  the  books  a  "friendly,"  and  not  a 
"hostile,"  flre.  In  the  case  before  us  the  flre 
was  extraordinary  and  unusual,  unsuitable 
for  the  purpose  intended,  and  in  a  measure 
uncontrollable,  besides  being  inherently  dan- 
gerous because  of  the  unsuitable  material 
Qsed.  Such  a  fire  was  we  think  a  "hostile" 
flre,  and  within  the  contemplation  of  the  poli- 
cy. Ordinarily  the  question  in  such  cases  is 
for  the  Jnry.  New  York  ft  B.  D.  E.  Go.  et  al. 
▼.  Traders'  &  M.  Ins.  Co.,  132  Mass.  877,  42 
Am.  Rep.  440;  New  York  &  B.  D.  E.  Co.  et  al. 
T.  Traders'  M.  Ins.  Co.,  135  Mass.  221;  Rich- 
ards on  Insurance,  i  2S1.  But  in  this  case 
the  evidence  being  practically  undisputed,  we 
think  no  error  was  committed  in  directing  a 
verdict  for  the  plaintiff. 

The  Judgment  of  the  court  below  is  af- 
firmed. 

MARSHALL,  J.,  dissenting  in  partt 


BERO  ▼.  TOWN  OF  AUBURN. 
(Supreme  Court  of  WlBconsin.    Oct.  26,  1909.) 

1.  HiQHWATS  (I  192*)— Defects— MATKBIAIJ9— 
RioHT  OF  Authorities. 

Town  authorities  have  the  right  to  place 
material  in  the  highway  at  convenient  and 
proper  places  for  the  purpose  of  repairing  the 
same,  in  the  exercise  of  ordinary  care,  but  they 
have  no  right  to  so  place  such  material  as  to 
render  the  highway  dangerous  to  the  traveler, 
and  permit  it  to  remain  an  unreasonable  time. 

[Bd.   Note.— For  other  cages,   see   Highways, 
Cent.  Dig.  ii  482-485;    Dec.  Dig.  g  192.*] 

2.  Highways  (§  211*)— Dkpects— Matebials— 
StnnriciEKCT  or  Evidence. 

In  an  action  for  injury  resulting  from  the 
fright  of  a  horse  at  an  iron  pipe  in  the  highway, 
placed  there  by  the  town  authorities,  evidence 
held  to  sustain  a  finding  that  the  authorities 
were  negligent 

[Ed.   Note.— For  other  cases,   see   Highways, 
Cent.  Dig.   {f   527-532;    Dec.  Dig.   |  211.*] 

8.  Triai.   (I   350*)— Special   Verdict— Ques- 
tions Submitted— SuTFiciENCT. 

In  an  action  for  injuries  resulting  from  a 
horse  taking  fright  at  an  iron  pipe  in  the  high- 
way, a  special  verdict  was  suomitted  as  to 
whether  the  iron  pipe  was  likely  to  frighten 
hones;  whether  defendant  was  negligent  in 
leaving  it  there;  and  whether  such  negligence, 
if  any,  was  the  proximate  cause  of  the  injury. 
The  evidence  was  conflicting  as  to  whether  the 
pipe  rested  against  the  fence  or  was  placed  four 
feet  from  it,  where  it  would  be  more  likely  to 
frighten  horses.  Beld  that,  in  the  absence  of  a 
request  by  defendant  for  other  questions  to  be 
submitted,  the  special  verdict  sufficiently  sub- 
mitted the  material  controverted  issues. 

[Bd.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  SI  828-833;   Dec.  Dig.  f  350.»] 


Appeal  from  Circuit  Court,  Chippewa  Coun- 
ty; A.  J.  Vinje,  Judge. 

Action  by  Ferdinand  Berg  against  the 
Town  of  Auburn.  From  -a  judgment  for 
plaintiff,  defendant  appeals.    Afllrmed. 

This  Is  an  appeal  from  a  Judgment  recov- 
ered against  the  defendant  town  in  a  person- 
al injury  action.  The  plaintiff's  horse  shied 
at  a  piece  of  iron  culvert  pipe  placed  in  a 
public  highway  by  authority  of  the  town  of- 
ficers, and  the  plaintiff  was  thrown  from  a 
buggy  and  injured.  The  Jury  returned  the 
following  verdict: 

"(1)  Was  the  pipe  in  the  position  and  con- 
dition it  was  allowed  to  remain  by  the  de- 
fendant an  object  likely  to  frighten  horses 
of  ordinary  gentleness  driven  along  the  high- 
way?   Answer:  Yes. 

"(2)  Was  the  defendant  guilty  of  any  neg- 
ligence in  allowing  the  pipe  to  remain  in  the 
position  and  condition  it  did  remain?  An- 
swer: Yes. 

"(3)  If  your  answer  to  question  two  is  yes, 
then  was  such  negligence  the  proximate  cause 
of  the  plaintiCTs  injury?    Answer:    Yes. 

"(4)  Was  plaintiff  guilty  of  any  want  of 
ordinary  care  that  contributed  to  produce  bis 
injury?    Answer:    No. 

"(5)  If  the  court  is  of  the  opinion  that 
plaintiff  is  ^titled  to  recover,  then  in  what 
sum  do  you  assess  his  damages?  Answer: 
1200." 

At  the  close  of  the  evidence  on  the  part 
of  the  plaintiff  the  defendant  moved  for  a 
nonsuit,  which  was  denied.  Motions  were 
made  by  defendant  to  change  the  answers  to 
question  No.  2  from  "Yes"  to  "No,"  and  to 
question  No.  4  from  "No"  to  "Yes"  and  for 
judgment  on  the  verdict  as  so  amended,  and 
also  that  the  verdict  be  set  aside  and  for  a 
new  trial,  which  motions  were  denied. 

Dayton  E.  Cook  and  W^  M.  Bowe,  for  ap- 
pellant   Alexander  Wiley,  for  respondent 

KERWIN,  J.  (after  stating  the  facts  as 
above).  1.  Error  is  assigned  because  of  the 
refusal  of  the  court  to  grant  defendant's  mo- 
tion for  nonsuit,  and  in  refusing  to  amend  the 
special  verdict  and  order  Judgment  for  the 
defendant  This  contention  is  based  upon  the 
idea  that  the  pipe  placed  in  the  highway  was 
not  unlavrfully  there,  and  was  not  of  such 
a  character  as  to  amount  to  an  obstruction  or 
render  the  highway  defective,  and  that,  the 
pipe  having  been  placed  upon  the  highway 
for  the  purpose  of  repairing  a  culvert  there- 
in it  was  lawfully  there,  hence  there  was  no 
liability  on  the  part  of  the  town.  The  evi- 
dence shows  that  the  highway  in  question 
ran  east  and  west,  and  that  the  iron  culvert 
pipe  was  2%  feet  in  diameter  and  about  12 
feet  long  and  painted  red ;  that  it  lay  about 
8  feet  from  the  north  wheel  track,  and  that 
the  road  was  about  60  feet  wide;  that  on  the 
south   side  of   the   road   was   considerable 


•For  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  DIga.  1907  to  data,  *  Reporter  Indexea 
122  N.W.-66  t  See  122  N.  W.  112J. 


Digitized  by  LjOOQ  l€ 


1042 


122  NORTHWESTERN  REPORTER. 


(Wla. 


brush,  and  the  distance  betweoi  the  aoath 
wheel  track  and  the  south  fence  was  over  2 
rods.  There  was  also  a  piece  of  pipe  about 
0  feet  long  on  the  south  side  of  the  traveled 
track,  which  pipe  lay  In  the  brush  pretty 
close  to  the  fence  and  about  1%  rods  from 
the  main  traveled  track.  The  pipe  was  of 
such  a  character  that  It  frightened  horses. 
It  was  allowed  to  remain  In  the  highway  11 
days.  There  was  some  brush  thrown  upon 
It  which  covered  It  as  long  as  the  leaves  on 
the  brush  remained  green,  but,  after  the 
leaves  dried,  It  looked  worse  than  If  It  had 
not  been  covered  at  all.  For  about  a  week 
before  the  accident  the  pipe  had  only  a  little 
brush  on  It  The  west  end  of  the  pipe  was 
practically  bare,  the  sun  having  dried  the 
leaves  and  the  wind  taken  ofT  some  of  the 
brush.  It  is  plain  from  the  evidence  that  the 
town  authorities  in  covering  the  pipe  with 
brush  recognized  the  fact  that  a  pipe  of  such 
size  and  painted  red  as  it  was  and  in  such 
close  proximity  to  the  traveled  track  was 
calculated  to  frighten  horses,  and,  upon  the 
evidence  showing  the  length  of  time  it  was 
permitted  to  remain  in  the  condition  it  was 
after  it  became  exposed,  the  Jury  were  war- 
ranted in  finding  that  it 'constituted  a  de- 
fect in  the  highway  and  negligence  on  the 
part  of  the  town  authorities  in  permitting 
it  to  ronain.  While  it  is  doubtless  true  that 
the  town  authorities  would  have  the  right 
to  place  material  in  the  highway  at  con- 
venient and  proper  places  for  the  purpose  of 
repairing  the  same  in  the  exercise  of  ordinary 
care,  it  is  also  true  that  they  have  no  right 
to  so  place  such  material  in  such  position  as 
to  render  the  highway  dangerous  to  the  trav- 
eling public,  and  peimlt  it  to  remain  an  un- 
reasonable length  of  time  in  such  position. 
Foshay  v.  Glen  Haven,  25  Wis.  288,  3  Am. 
Rep.  73;  Loberg  v.  Amherst,  87  Wis.  634. 
58  N.  W.  1048,  41  Am.  St  Rep.  69;  Laird 
V.  Otsego,  90  Wis.  25,  62  N.  W.  1042;  Carton 
V.  Greenfield,  130  Wis.  342,  110  N.  W.  208. 

In  Oarlon  v.  Greenfield,  supra,  this  court 
held  that,  where  material  is  deposited  by  the 
town  authorities  for  the  purpose  of  repair- 
ing culverts,  the  ofilcers  of  the  town  are 
required  to  exercise  reasonable  care  in  select- 
ing a  place  least  calculated  to  frighten  ordi- 
narily gentle  horses  in  the  use  of  the  road, 
and  we  think  in  the  case  at  bar  it  was  a 
question  for  the  jury  to  determine  whether 
the  authorities  of  the  town  were  negligent  In 
depositing  the  pipe  where  they  did,  and  permit- 
ting it  to  remain  for  a  period  of  about  eleven 
days,  during  the  last  week  of  which  time 
it  was  practically  uncovered  and  in  plain 
sight  of  horses  traveling  upon  the  highway. 
In  Halstead  v.  Warsaw,  43  App.  Div.  39,  59 
N.  T.  Supp.  618,  it  was  held  In  a  case  where 
the  authorities  of  the  village  had  been  using  a 
steam  roller  to  improve  its  street  that,  when 
the  work  upon  the  street  was  suspended  for 
the  day,  if  an  obstruction  to  the  unrestricted 
use  of  the  highway,  such  obstruction  should 
be  guarded  so  as  not  to  menace  the  traveling 


public;  and  it  was  furtber  bdd  that  It  was 
for  the  Jury  to  say  whether  a  steam  roller 
left  upon  the  highway  would  tend  to  frighten 
horses,  and,  if  so,  It  was  Incumbent  upon 
those  having  charge  of  It  to  have  it  removed 
from  the  street  when  the  work  was  com- 
pleted for  the  day.  See,  also,  Eggleston  v. 
OolumbU  T.  R.  Co.,  82  N.  Y.  278.  In  the 
case  at  bar  the  Jury  would  have  been  Justi- 
fied in  finding  that  the  pipe  deposited  was  of 
such  character  as  to  frighten  horses  of  or- 
dinary gentleness,  and  that  the  authorities 
of  the  town  failed  to  exercise  reasonable 
care  in  placing  and  maintaining  such  pipe 
as  it  was  placed  and  maintained  for  a  period 
of  about  eleven  days  before  the  accident 

2.  Error  is  also  assigned  in  the  submission 
of  a  special  verdict  on  the  ground  that  the 
material  controverted  issues  were  not  sub- 
mitted. It  appears  from  the  record  that  no 
request  for  a  special  verdict  or  any  questions, 
nor  for  instructions,  was  made  by  tbe  de- 
fendant The  evidence  was  in  conflict  as  to 
whether  or  not  the  pipe  rested  against  the 
fence,  or  was  placed  at  a  distance  of  about 
four  feet  from  the  fence.  It  also  appears  that 
the  space  from  the  south  side  of  the  traveled 
track  to  the  fence  was  a  little  over  two 
rods,  and  that  there  was  considerable  brush 
on  the  south  side  covering  a  short  piece  of 
pipe  placed  on  that  side,  being  about  1% 
rods  from  the  main  traveled  track.  So  we 
think  on  the  facts  in  the  case  the  contro- 
verted issues  were  sufficiently  submitted  to 
the  Jury,  and  especially  so  in  the  absence  of 
any  request  on  the  part  of  the  defendant  for 
other  questions.  The  main  questions  for  the 
jury  to  determine  were  whether  the  pipe  in 
the  position  and  condition  in  which  it  watf 
allowed  to  remain  was  an  object  likely  to 
frighten  horses  of  ordinary  gentleness,  and 
whether  the  defendant  was  guilty  of  n^li- 
gence  in  allowing  the  pipe  to  remain  in  such 
condition,  and  thereby  render  the  highway  de- 
fective. The  answers  to  these  questions  in 
the  affirmative  upon  sufficient  evidence  e8tat>- 
llshed  the  fact  of  the  defective  condition 
of  the  highway  through  the  negligence  of  the 
defendant  Carlon  v.  Greenfield,  ISO  Wis. 
842,  110  N.  W.  208;  Tinker  v.  New  York  O. 
ft  W.  R.  Co.,  71  Hun,  481,  24  N.  Y.  Supp.  977. 
The  defendant  also  excepted  to  the  following 
instruction:  "You  are  Instructed  that  the 
defendant  had  a  right  to  store  the  pipe  in 
the  highway  a  reasonable  length  of  time, 
providing  it  exercised  ordinary  care  In  so 
storing  it ;"  and  the  further  instruction:  "In 
considering  whether  or  not  the  defendant  was 
guilty  of  any  negligence  in  allowing  the  pipe 
to  remain  in  the  position  and  condition  it  did 
remain,  yon  will  consider,  among  other  things, 
the  position  and  condition  of  the  pipe  as 
shown  by  the  evidence,  also  the  length  of 
time  it  was  allowed  to  remain  in  the  high- 
way." We  see  no  objection  to  these  instruc- 
tions, and  think  they  were  in  line  with  the 
law  as  laid  down  by  this  court  Carlon  v. 
Greenfield,  supra ;  Lyon  v.  Grand  Rapids,  121 


Digitized  by  VjOOQ  l€ 


WlB) 


IN  RB  PLOWRIQHT. 


1043 


Wto.  609,  99  N.  W.  311.  We  find  no  rwers- 
Ible  error  In  the  record,  and  think  the  case 
was  fairly  submitted  to  the  Jary ;  hence  the 
Judgment  of  the  conrt  below  must  be  af- 
firmed. 

The  Judgment  of  the  conrt  below  Is  af- 
firmed. 


In  re  PliOWRIQHT. 
(Supreme  Court  of  Wisconsin.    Oct  20,  1909.) 

1.  Eminent  Domain  (§  10*)— Right  to  Con- 
demn' Street  tob  Irtebubban  Raii-wat. 

The  right  of  any  street  or  interurban  rail- 
way company  to  condemn  the  right  to  use  city 
streets,  not  being  authorized  till  adoption  of 
XiSws  1901,  p.  6^  c.  465  (St.  1898,  f  ISeSa), 
which  grants  the  right  on  the  express  condition 
that  the  use  thereof  shall  first  be  granted  by  a 
franchise  duly  passed  by  the  common  council, 
and  a  company  prior  to  January  7,  1907,  or  at 
latest  July  20,  1908,  only  having  authority  to 
operate  a  street  railway  for  transporting  pas- 
sengers, which  authority  gave  it  no  right  to  in- 
stitute condemnation  proceedings  as  an  inter- 
urban railway  company,  its  right  to  condemn 
^e  use  for  interurban  business  of  a  city  street 
on  which  it  had  laid  its  track  was  not  obtained 
till  ordinances  were  passed  on  the  dates  speci- 
fied, granting  the  rignt  to  use  it  for  snch  pur- 
pose. 

[E!d.  Note. — For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  i  40;    Dec.  Dig.  {  10.*] 

2.  Eminent  Domain  (8  168*)— Condemnation 
OF  Street  jwr  Interurban  Railway— In- 
anTDTioN  OT  Pboceedinob  bt  Person  Dam- 

AOED. 

Delaying  for  more  than  four  months  after 
right  accmed  to  institute  proceedings  to  con- 
demn a  street  for  use  of  the  business  of  an 
intenirl>an  railway  is  sufficient  to  warrant  a 
party  entitled  to  damages  in  proceeding  in  the 
matter  as  authorized  by  St.  1898,  |  1&52,  when 
the  company  delays  or  omits  to  prosecute  the 
same. 

[Ed.  Note.— For  other  cases,  see  Eminent  Do- 
main, Cent  Dig.  i  468;   Dec.  Dig.  |  16a*] 

Appeal  from  Circuit  Court,  Rock  County; 
George  Qrlmm,  Judge. 

In  the  matter  of  the  petition  of  John 
Plowrlght  for  damages  to  his  lands  in  the 
city  of  Janes vlUe,  Rock  county,  taken  and 
used  by  the  Beloit,  Delaran  Lake  &  Janes- 
vine  Railway  Company  for  railway  purposes. 
From  an  order  appointing  commissioners  to 
ascertain  and  appraise  petitioner's  damages, 
the  company  appeals.   Affirmed. 

The  Beloit,  Delavan  Lake  ft  Janesvllle 
Railway  Company  was  Incorporated  March 
4,  1901.  The  articles  of  Incorporation  state 
that  the  purpose  of  the  corporation  shall  be 
"to  build,  construct,  operate,  maintain,  pur- 
chase, lease,  and  acquire  a  railway  or  rail- 
ways for  the  carrying  of  persons  and  prop- 
erty, including  mail,  express  matter,  bag- 
gage, freight,  or  any  thereof,  and  the  fur- 
nishing of  light,  heat,  and  power."  The  lo- 
cation of  the  corporation  Is  given  in  the  arti- 
cles as  Beloit,  Rock  county.  Wis.  By  an 
amendment  on  August  21,  1901,  the  purpose 
in  forming  the  corporation  is  given  as  fol- 


lows: "For  the  business  and  purpose  of 
purchasing  or  otherwise  acquiring,  construct- 
ing, equipping,  leasing,  maintaining,  and 
operating  by  electricity  or  other  power,  a 
street  railway  for  the  transportation  of  pas- 
sengers in  the  city  of  Beloit,  county  of  Rock, 
state  of  Wisconsin,  and  elsewhere  as  it  may 
by  law  be  authorized  to  do,  and  of  purchas- 
ing or  otherwise  acquiring,  taking,  holding, 
and  operating  real  and  personal  property, 
rights,  privileges,  ordinances,  and  franchises 
and  any  enterprises  suitable  for  or  In  fur- 
therance of  the  business  or  purposes  bf  the 
corporation,  and  for  the  purpose  of  acquir- 
ing by  purchase,  lease  or  by  right  of  eminent 
domain,  the  real  and  personal  property, 
rights,  privileges,  ordinances,  and  franchises 
of  any  individual  or  Individuals  or  of  any 
street  railway,  electric  power,  light,  or  heat 
companies,  foreign  or  domestic,  now  or  here- 
after existing,  or  of  leasing  the  same,  or  of 
acquiring  and  holding  the  shares,  bonds,  or 
other  securities  of  such  street  railway  or 
light,  power,  or  heat  companies  or  Interests 
therein,  and  of  extending  its  railways  to 
any  point  or  points  within  any  town  adjoin- 
ing said  municipal  coriraratlon,  and  of  acquir- 
ing, building,  maintaining,  ox)eratlng,  and 
using  any  street  railways  for  the  transporta- 
tion of  passengers  or  for  the  transportation 
of  mail,  express,  merchandise,  and  freight, 
or  of  both  or  all.  In  any  city,  village,  or 
town,  and  to  extend  its  railway  or  railways 
from  any  point  In  one  dty,  village,  or  town, 
to,  into,  and  through  any  other  dty,  village, 
or  town;  and  of  manufacturing,  generating, 
storing,  or  using,  selling,  and  leasing  electric- 
ity for  power,  light,  or  other  purposes."  The 
nature  of  the  business  and  the  railway  com- 
pany's powers,  rights,  privileges,  and  fran- 
chises are  set  out  in  the  report  of  its  case 
against  Macloon,  186  Wis.  218, 116  N.  W.  897, 
to  which  reference  is  made  for  further  de- 
tails. 

On  May  13,  1901,  the  common  council  of 
the  city  of  JaueevlUe  passed  an  ordinance, 
over  the  mayor's  veto,  granting  the  defend- 
ant corporation  a  franchise  in  and  upon  cer- 
tain streets  of  the  city,  among  others  a 
part  of  Franklin  street,  to  construct,  main- 
tain, and  operate  an  electric  railway  for  the 
carriage  of  passengers.  A  year  later  the 
ordinance  was  amended  by  changing  its 
route.  In  April  or  May,  1902,  the  defendant 
corporation  commenced  to  lay  its  tracks  upon 
Franklin  street,  and  by  July  this  work  of 
construction  had  been  completed.  Meanwhile 
the  defendant  had  undertaken  the  work  of 
constructing  a  line  of  track  in  extension  of 
the  line  in  the  city  of  Janesvllle  and  to  the 
city  of  Beloit,  and  in  December,  1902,  began 
the  operation  of  an  electric  interurban  rail- 
way in  and  from  the  city  of  Janesvllle  to 
and  through  the  dty  of  Beloit  By  an  or- 
dinance of  January  7,  1907,  the  dty  of 
Janesvllle  granted  the  defendant  a  franchise 


•For  other  eases  ■••  samt  topic  and  section  NUMBER  In  Deo.  *  Am.  Diss.  ia07  to  data,  *  Reportar  Indazaa 


Digitized  by  VjOOQ  l€ 


1044 


122  NOBTHWBSTBBN  RBPOBTKB. 


(Wlflu 


to  carry  express,  package  freight,  and  mall 
In  addition  to  passengers,  and  soon  after- 
ward the  defendant  commenced  the  carriage 
of  the  articles  enumerated  In  the  franchise 
orer  its  whole  line.  By  an  ordinance  of  the 
common  council  of  Janesvllle  dated  July 
20,  1908,  the  defendant  was  granted  a  fran- 
chise to  maintain  and  operate  an  urban  and 
an  interurban  electric  railway  for  the  car- 
riage of  passengers,  express,  package  freight, 
and  the  United  States  mall  in,  between,  and 
through  the  city  of  Janesrllle  and  the  city 
of  Belolt  over  the  streets  named  In  the  ordi- 
nances previously  passed,  which  granted  the 
defendant  franchises  to  do  the  business  there- 
in enumerated.  Since  December,  1902,  the 
defendant  has  operated  a  city  street  railway 
business  in  the  city  of  Janesvllle,  using  the 
same  cars  as  were  used  in  the  interurban 
business.  Since  January,  1907,  the  defend- 
ant has  carried-  express,  package  freight,  and 
United  States  mail  in  the  city  of  Janesvllle 
In  the  cars  used  in  the  Janesvllle  urban  and 
Its  interurban  business. 

The  petitioner  Instituted  these  proceed- 
ings on  November  30,  1908,  praying  for  the 
appointment  of  commissioners  to  appraise  bis 
damages  caused  by  the  taking  and  operation 
by  the  defendant  of  Its  railway  system  over 
a  portion  of  his  real  estate,  to  wit,  that 
part  of  Franklin  street,  a  public  highway,  oc- 
cupied by  the  defendant  on  the  east  end  of 
his  lot  The  defendant  answered,  alleging 
that  it  had  taken  possession  of  the  strip  of 
plaintiff's  property  in  April  or  May,  1902, 
and  pleaded  the  statute  of  limitation,  alleg- 
ing that  more  than  six  years  had  elapsed 
since  the  taking  of  the  strip  for  interurban 
railway  business  purposes,  and  that  petition- 
er was  barred  from  instituting  this  proceed- 
ing. On  February  11,  1909,  the  circuit  court 
filed  a  determination  holding  that  the  plain- 
tiff was  not  barred  by  the  statute  of  limita- 
tions, and  on  March  10,  1909,  the  court  filed 
an  order  appointing  commissioners  to  ascer- 
tain and  appraise  petitioner's  damages.  This 
is  an  appeal  from  such  order. 

Thos.  S.  Nolan,  for  appellant  Charles  B. 
Pierce,  for  respondent 

SIEBECKER,  X  (after  stating  the  facts 
as  above).  The  right  of  any  street  or  inter- 
urban railway  company  to  condemn  the  right 
to  use  city  or  village  streets,  alleys,  or  via- 
ducts was  not  authorized  until  the  adoption 
of  chapter  465,  p.  686,  Laws  1901  (section 
1863a,  St  1898),  which  grants  the  right  upon 
the  express  condition  that  "  •  •  •  the 
use  of  such  street,  alley,  or  viaduct  shall 
first  be  granted  to  such  street  or  electric 
railway  company  by  a  franchise  duly  passed 
by  the  board  of  trustees  or  common  council 
of  such  village  or  city."  The  decision  in  the 
case  of  Appellant  v.  Macloon,  136  Wis.  218, 
116  N.  W.  897,  determined  that  It  bad  no 


right  as  an  Interurban  railway  to  institnte 
condemnation  proceedings  for  the  use  of  a. 
street  unless  it  first  had  obtained  a  grant 
from  the  common  council  of  the  dty  authoriz- 
ing such  use  of  the  street  The  inquiry 
therefore  In  the  case  Is:  When  did  the  ap- 
pellant obtain  the  right  to  condemn  the 
use  of  the  street  for  an  interurban  railway 
business? 

Prior  to  1907,  under  the  franchises  It  had 
obtained  from  the  city  of  Janesvllle,  it  was 
given  authority  to  operate  a  street  railway 
for  the  transportation  of  passengers  in  the 
city.  The  conduct  of  this  business,  as  held 
in  the  Macloon  Case,  required  no  condemna- 
tion of  the  use  of  the  street,  and  hence  no 
right  to  condemn  existed  either  against  or  In 
favor  of  respondent  It  Is  obvious  from  the 
context  of  the  ordinances  passed  prior  to 
1907,  which  granted  the  appellant  the  right 
to  operate  its  railway  business  over  the  dty 
streets,  that  appellant  was  authorized  merely 
to  conduct  a  street  railway  business,  and 
that  no  authority  to  conduct  an  interurban 
railway  business  was  conferred  thereby. 
Such  authority  was  unquestionably  conferred 
by  the  ordinance  of  July  20,  1908.  Whether 
the  ordinance  of  January  7,  1907,  conferred 
such  authority  it  Is  not  necessary  to  decide. 
If  authority  to  do  an  interurban  railway 
business  is  thereby  conferred,  still  the  pe- 
riod of  limitation  barring  actions  for  con- 
demnation under  section  4222,  St  1898,  has 
not  run.  Under  the  circumstances,  the  right 
to  condemn  did  not  exist  prior  to  the  pas- 
sage of  these  ordinances,  and  no  right  to  pro- 
ceed to  condemn  could  have  accrued.  Of 
course,  petitioner  had  no  power  to  proceed 
under  section  1852,  St  1808,  until  the  rail- 
way company  had  delayed  or  omitted  to  Insti- 
tute and  conduct  the  proceedings  to  a  conclu- 
sion. Under  the  facts  we  deem  appellant's 
delay  In  Instituting  the  proceeding  to  con- 
demn since  the  right  accrued  was  sufDclent 
to  warrant  petitioner's  proceeding  In  the 
matter. 

The  order  appointing  commissioners  to  ap- 
praise petitioner's  damages  was  proper. 

The  order  Is  affirmed. 


KATHAN  et  «1.  r.  COMSTOCK  et  aL 
(Supreme  Court  of  Wisconsin.    Oct  26,  1009.) 

1.  Appeal  and   Erbob  (J   1010*)— Bevibw— 
Findings  of  Fact— CoNCLnsivENEss. 

Findings  of  fact  of  the  trial  court,  not 
contrary  to  the  clear  preponderance  of  the  evi- 
dence, are  conclusive  upon  the  Supreme  Court, 
and  judgment  based  thereon  will  not  be  disturb- 
ed if  the  conclusions  of  law  are  warranted. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  §i  3979-8082;  Dec.  Dig.  | 
1010.*] 

2.  Advebsb  PoBSKsaioK  (i  47*) — OoonPATiON 
Under  Tax  Deed. 

Actual  or  constructive  possession  of  land 
under  a  tax  deed  for  the  full  period  of  three 


•Dor  oUier  cases  see  same  toptc  and  section  NUMBiSR  In  Dec.  ft  Am.  Digs.  1S07  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  IC 


wm 


KATHAN  V.  OOMSTOCK. 


1045 


years  la  necessary  to  bar  recovery  by  the  former 
owner  by  limitations;  an  interruption  of  the 
mere  constructive  possession  created  by  record- 
ing a  tax  deed  of  vacant  and  unoccupied  land, 
by  actual  iKissession  for  any  period  by  the  for- 
mer ovner  within  three  years  after  such  record- 
ing, turning  the  statute  of  limitations  in  favor 
of  the  former  owner,  which,  if  not  interrupted 
by  action  by  the  tax  title  claimant,  or  actual 
jxnsession  by  him  within  three  years  after  the 
recording,  will  terminate  all  rights  under  the 
deed. 

[EH.  Note.— For  other  cases,  see  Adverse  Pos- 
■ession,  Gent.  Dig.  H  234,  235;  Dec  Dig.  | 
47,*] 

8.   FBAUD  (J  lO*)— MiSBKPBMENTATIOIIS— RkP- 
BB8ENTATI0N8  OF  FACT. 

Where  the  holder  of  recorded  tax  deeds  rep- 
resented to  the  owners  of  property  that  her 
deeds  had  extinguished  their  title,  and  knew  or 
should  have  known  that  such  representation  by 
necessary  implication  conveyed  the  idea  that 
the  property  was  vacant  at  the  time  of  the 
recoraing  of  the  tax  deeds,  and  so  continued  dur- 
ing the  entire  period  of  three  years,  while,  In 
fact,  the  owners'  predecessor  in  title  had  actual- 
ly possessed  the  property  for  the  full  three 
years  after  recording  of  the  last  tax  deed,  her 
representation  was  false  and  of  a  fact,  and  not 
a  mere  legal  opinion  of  the  effect  of  the  tax 
deeds. 

[Bd.  Note.— For  other  cases,  see  Fraud,  Gent. 
Dig.  8  11 ;  Dec.  Dig.  §  10.*] 

4.  DEBDS   (i  70*)— CONTBAOTS  (S  94*)- Valid- 
ITT— MlBBEPBKSENTATION— FBATJD     IR     LAW. 

Where  the  holder  of  tax  deeds,  which  had 
been  extinguished  by  limitations,  represented 
to  the  owners  of  the  land  that  their  title  had 
been  divested  by  the  tax  deeds,  and  upon  their 
reliance  tliereon  obtained  a  conveyance  in  form 
by  them,  it  was  not  material  whether  she  made 
the  representation  in  good  faith  or  knew  that  it 
was  false,  since  if  one  in  negotiating  to  another 
in  contractual  matters  makes  a  misrepresenta- 
tion of  fact,  material  to  the  transaction,  to  in- 
duce the  other  to  act  thereon,  and  such  other 
reasonably  does  so  act,  to  his  prejudice,  he  may 
avoid  the  result  on  the  ground  of  fraud,  actual 
or  constructive,  and  may  have  the  aid  of  equity 
to  that  end,  and  it  is  not  sufficient  answer  to 
the  cledm  of  sucb  other  for  such  person  to  say 
he  made  the  representations  honestly,  since  it  is 
his  duty  to  know  whereof  be  speaks,  or  not  to 
speak  at  all  as  of  his  knowledge. 

[Ed.  Note. — For  other  cases,  see  Deeds,  Gent. 
Dig.  a  165-182;  Dec.  Dig.  i70;»  Contracto, 
Cent.  Dig.  ii  420-430;   Dec.  Dig.  §  94.*] 

6.  Fbaud  (1 13*)— Mi8BEPK«8ENTATiONB— Good 

Faith. 

The  doctrine  that  it  is  sufficient  to  put  a 
person  making  misrepresentations  in  the  wrong 
if  he  knew  or  ought  to  have  known  of  their  falsi- 
ty is  not  based  upon  principles  of  actionable 
negligence,  but  upon  the  theory  that  he  who 
makes  representations  to  another  of  material 
facts  to  induce  the  other  to  enter  into  contractu- 
al relations  with  him  and  which  are  liable  to  ac- 
complish the  purpose  without  want  of  ordinary 
care  on  the  part  of  the  other  is  bound,  at  his 
iwril,  to  know  whereof  he  speaks. 

[Ed.  Note.— For  other  cases,  see  Fraud,  G<nt. 
Dig.  8S  3-5;   Dec.  Dig.  S  13.*] 

6.  Fbaud  (f  23*)— Repbksentatiorb  —  Riobt 

TO  Kelt  Oh. 

One  not  himself  knowing  the  facts  involved 
may  reasonably  act  on  representations  by  an- 
other who  desires  to  enter  into  contractual  rela- 
tions with  him  as  to  conditions  not  presently 
observable. 

[Bd.  Note.— For  other  cases,  see  Fraud,  Cent. 
Dig.  a  20-23 ;   Dec.  Dig.  §  23.*] 


7.  Cancellation  of  Instbuments  (|  66*)— 

Vacaxing  Deed— Jttdguent. 

In  proceedings  to  cancel  a  deed  to  land  ob- 
tained by  misrepresentation  that  the  owners'  ti- 
tle had  been  extinguished  by  tax  deeds,  where 
the  misrepresentation  extended  only  to  one  40 
out  of  22  40's  conveyed,  and  plaintiffs,  after  the 
court  had  announced  that  the  evidence  was  suffi- 
cient to  warrant  setting  aside  the  deed  so  far 
as  it  related  to  the  single  40,  offered  to  make  it 
optional  with  defendants  whether  the  whole  deed 
should  be  set  aside,  defendants  should  have  of- 
fered evidence  enabling  the  court  to  apportion 
the  consideration  paid  by  the  purchaser  so  as  to 
require  restoration  to  bim  of  the  equitable 
amount  which  the  tract  as  to  which  misrepre- 
sentation was  made  represented,  and,  having 
failed  to  offer  such  evidence,  it  was  not  error  for 
the  court  to  deal  with  the  transaction  as  an  en- 
tirety and  vacate  the  deed,  requiring  restoration 
of  the  full  consideration. 

[Ed.  Note.— For  other  cases,  see  Cancellation 
of  Instruments,  Cent.  Dig.  §}  112,  113;  Dec 
Dig.  8  56.*] 

Appeal  from  Circuit  Court,  Shawano  Coun- 
ty; John  Goodland,  Judge. 

Action  by  Hazel  Eathau  and  others  against 
E.  G.  Gomstock  and  others.  Judgment  for 
plalntifCs,  and  defendants  appeal.    Affirmed. 

Equitable  action  to  set  aside  deeds  to  real 
estate  and  quiet  title. 

The  issues  passed  upon  in  closing  the  case 
by  Judgment  may  be  concisely  stated,  as  fol- 
lows: The  title  to  the  particular  land  In 
question  and  others,  aggregating  22  tracts, 
was  in  Joseph  Kathan  at  the  time  of  his 
death,  May  26,  1901.  He  died  intestate  leav- 
ing as  his  only  heirs  his  widow,  Hattie  P. 
Katlian,  and  three  minor  children,  the  plain- 
tiffs herein.  The  title  to  said  laud  was  vest- 
ed In  them  on  the  death  of  Mr.  Kathan,  sub- 
ject to  six  tax  deeds  thereon  In  the  name 
of  defendant  Pier.  The  title  to  the  particular 
tract  was  vested  in  Mr.  Kathan  many  years 
before  he  died.  It  was  occupied  and  used 
by  blm,  in  the  main,  as  a  wood  lot  and  for 
cutting  and  removing  timber  therefrom,  con- 
tinuously, for  several  years  after  his  owner- 
ship commenced.  During  such  time  a  small 
part  was  cleared,  cultivated  and  inclosed  by 
a  fence.  The  land  was  thereafter  used  by 
Mr.  Kathan,  continuously,  down  to  1897  in 
connection  with  an  adjoining  tract  on  which 
he  owned  and  operated  a  brickyard.  It  was 
thereafter  occupied,  continuously,  down  to 
the  time  of  the  commencement  of  the  action 
by  defendant,  £bgle  River  Brick  Company, 
in  connection  with  the  brickyard  40,  un- 
der an  agreement  with  the  owner  to  con- 
vey the  same  to  it  for  $200,  as  soon  as  cleared 
of  back  taxes.  The  plaintiffs  did  not  know  of 
the  occupancy  aforesaid  till  after  the  con- 
veyance, hereafter  mentioned,  to  defendant 
Gomstock.  Some  time  subsequent  to  the 
death  of  Mr.  Kathan,  under  an  agreement 
with  one  Colman,  county  Judge  of  Vilas  coun- 
ty, that  title  to  all  the  lands  should  be  vest- 
ed In  one  George  In  the  interest  of  plaintiffs 
and  the  particular  tract  then  be  by  him  con- 
veyed to  the  brick  company  of  which  Col- 


•For  otbar  cases  aea  sams  topic  and  aectlon  NUMBBR  in  Dec.  ft  Am.  Diss.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


1046 


122  NOBTHWESTBRN  RBFOBTBB. 


(WU. 


man  was  a  stockholder,  proceedings  were 
had,  In  form,  In  the  county  court  of  Vilas 
county,  but  In  fact  In  the  county  of  Shawano, 
resulting  In  such  title  being,  In  form,  so  vest- 
ed, whereupon  George  conveyed  the  particu- 
lar tract  to  said  brick  company  pursuant 
to  such  agreement  The  first  of  the  afore- 
said tax  deeds  was  made  and  recorded  in 
May,  1889,  and  the  last  one  in  May,  1898. 
After  the  proceedings  aforesaid,  in  form  vest- 
ing the  title  in  George,  defendant  Pier  rep- 
resented and  caused  to  be  represented  to 
plaintifts  that  the  statute  of  limitations  had 
run  in  favor  of  her  tax  deeds,  effectually  di- 
vesting the  title  to  said  lands  from  plaintiffs 
and  vesting  the  same  in  her.  She  did  that  for 
the  purpose  of  inducing  them  to  convey,  in 
form,  the  22  tracts  of  land  to  defendant 
Comstock  for  the  sum  of  $30.  The  particular 
tract  then,  and  at  the  time  of  the  commence- 
ment of  this  action,  was  worth  at  least 
f200.  Relying  upon  such  representations 
which  were  in  fact  false,  the  tax  deed  titles 
as  to  such  particular  land  having  been  ex- 
tinguished by  the  statute  of  limitations,  the 
same  having  been  occupied,  as  aforesaid,  such 
proceedings  were  taken  in  the  circuit  court 
for  Shawano  county  that  the  title  of  plain- 
tiffs in  all  the  lands  for  the  consideration 
aforesaid  was  vested  in  Comstock,  the  deed 
to  that  effect  being  duly  recorded.  That  was 
accomplished  in  the  interest  of  said  Pier  so 
that  she  might  control  the  patent  title  as  well 
as  the  tax  title  to  all  said  lands.  The  next 
day  after  the  conveyance  to  said  Comstock 
said  Pier  caused  the  particular  tract  to  be 
mortgaged  to  her  daughter,  the  defendant 
Mcintosh,  ostensibly  to  secure  $250,  but  in 
fact  to  give  her  standing  to  commence  an 
action  to  quiet  the  title  as  against  the  brick 
company.  Such  action  was  commenced,  and 
during  the  proceedings  therein,  plaintiffs  be- 
came possessed  of  information  as  to  the 
possession  aforesaid  extinguishing  the  tax 
title  claim.  Thereupon  this  action  was 
brought  against  all  parties  adversely  inter- 
ested to  vacate  said  deeds  made  by  plaintiffs 
and  the  mortgage  as  well,  establish  the  title 
to  said  particular  land  In  plaintiffs  accord- 
ing to  the  facts,  and  removing  all  clouds  ex- 
isting thereon  created  by  the  deed  to  George, 
the  deed  by  him  to  the  brick  company,  the 
deed  to  Comstock  and  the  mortgage. 

On  such  facts  judgment  was  awarded  to 
plaintiffs  wholly  annulling  the  deed  to  Corn- 
stock,  conditioned  upon  the  consideration 
paid  by  him  as  aforesaid  being  paid  into 
court  for  his  use,  and  decreeing  that  the  pos- 
session by  the  brick  company  was  lawful 
but  under  a  license  revokable  at  the  pleasure 
of  plaintiffs.  Costs  were  awarded  in  plain- 
tiffs' favor  in  one  bill  against  Comstock,  Pier 
and  Mcintosh,  and  in  favor  of  the  brick 
company  against  the  same  parties. 

C.  H.  Roemer  (O.  H.  Van  Alstine,  of  coun- 
sel), for  appellants.  Wallrich,  Dillett  &  Lar- 
son, for  respondents. 


MARSHALL,  J.  (after  stating  the  facts  as 
above).  The  findings  of  fact  do  not  appear, 
at  any  point,  contrary  to  the  clear  pre- 
ponderance of  the  evidence.  Therefore,  by 
a  familiar  principle,  they  must  be  regarded 
as  verities  and  the  judgment  based  thereon 
right.  If  the  conclusions  of  law  are  warranted. 

If  the  particular  tract  of  land  was  in  the 
actual  possession  of  Kathan,  deceased,  for 
the  full  three  years  after  execution  and  re- 
cording of  the  last  tax  deed,  as  found  by  the 
trial  court,  and  it  seems  as  above  indicated, 
that  such  must  be  taken  as  the  fact,  the  tax 
titles  were  thereby  extinguished,  leaving  Kate 
Pier  without  any  interest  in  the  land  what- 
ever at  the  time  she  represented  to  the  kath- 
an heirs  that  she  had  the  whole  title  under 
her  tax  deeds,  for  the  purpose  of  Inducing 
them  to  part  with  the  patent  title  to  Corn- 
stock.  Jones  V.  Collins,  16  Wis.  5&4;  Pul- 
ford  v.  Whlcher,  76  Wis.  655,  46  N.  W.  4ia 

It  is  the  settled  law,  not  disputed  at  all 
by  appellants,  that  actual  or  constructive 
possession  of  land  under  a  tax  deed  for  the 
full  period  of  three  years  is  necessary  for 
operation  of  the  statute  of  limitations  and 
that  Interruption  of  the  mere  constructive 
possession,  created  by  recording  a  tax  deed  of 
vacant  and  unoccupied  land,  by  actual  pos- 
session for  any  period  by  the  former  owner 
within  the  three  years  after  such  recording, 
turns  the  statute  of  limitations  in  favor  of 
the  former  owner,  which,  if  not  interrupted 
by  action  on  the  part  of  the  tax  title  claim- 
ant or  actual  possession  by  him  within  the 
three  years  after  the  recording  of  the  tax 
deed,  all  rights  under  such  deed  cease.  Cor- 
nell University  v.  Mead,  80  Wis.  837,  49  N.  W. 
815 ;  Midlothian  Iron  Mining  Co.  v.  Belknap 
et  al.,  108  Wis.  198,  84  N.  W.  169. 

No  question  is  raised  but  what  the  pro- 
ceedings whereby  the  title  to  the  land  In 
question  was  conveyed  to  George  and  by 
him  to  the  brick  company  were  void.  It  is 
insisted,  however,  that  the  representation 
made  by  Kate  Pier  as  to  her  tax  titles  hav- 
ing extinguished  the  Kathan  title,  was  not 
a  representation  of  fact  but  was  a  mere  legal 
opinion  of  the  effect  of  the  tax  deeds,  and 
so  was  not  fatal  to  the  Comstock  deed. 

We  are  unable  to  sustain  the  contention 
that  the  representation  was  a  mere  opinion 
grounded  on  such  pure  mistake  of  law  as 
equity  will  not  relieve  from.  She  knew,  or 
ought  to  have  luiown,  tliat  such  a  represen- 
tation, in  all  reasonable  probability,  was 
false,  unless  the  land  was  vacant  and  unoc- 
cupied at  the  time  of  the  recording  of  her 
tax  deeds  and  so  continued  during  the  entire 
statutory  period  of  three  years.  Therefore, 
she  knew,  or  ought  to  have  known,  that  such 
representation,  by  necessary  implication,  car- 
ried the  idea  that  such  vacancy  and  nonoc- 
cupancy  had  existed.  So  the  representation 
was  false  and  was  of  a  fact  material  to  the 
transaction  which  It  operated  to  bring  about. 

It  may  be  that  Mrs.  Pier  did  not  know 


Digitized  by  VjOOQ  l€ 


Wis.) 


KATHAN  V.  COUSTOCE. 


1047 


there  was  occupancy  of  the  land  preyenting 
the  bar  of  the  statute  from  running  In  fu- 
ror of  her  tax  titles.  It  may  be  that  there 
was  no  moral  turpitude  characterizing  the 
transaction.  Whether  there  was  or  was  not 
Is  not  material.  In  this  class  of  cases  fraud 
In  law  la  Just  as  effective  as  fraud  in  fact 
If  one  In  negotiating  with  another  in  con- 
tractual matters  makes  misrepresentations 
of  fact  material  to  the  transaction  for  the 
purpose  of  Inducing  such  other  to  act  there- 
on and  such  other  reasonably  does  so  act 
to  his  prejudice,  he  may  avoid  the  result  on 
the  ground  of  fraud,  actual  or  constructive 
— the  latter  really  Involving,  generally,  mere 
ml8tat:e  of  fact — and  may  have  the  aid  of 
equity  jurisdiction  to  that  end.  It  is  not  a 
sufficient  answer  to  the  claim  of  such  other 
for  such  person  to  say  he  made  the  repre- 
sentations honestly,  for  it  is,  in  law  and 
equity,  as  regards  avoiding  such  a  transac- 
tion, bis  duty  to  know  whereof  he  sjieaks 
or  not  to  speak  at  all  as  of  his  knowledge. 
This  court  has  many  times  spoken  on  that 
question.  Davis  v.  Nuzum,  72  Wis.  439,  40 
N.  W.  497,  1  L.  R.  A.  774;  McKlnnon  v. 
VoUmar,  75  W1&  82,  43  N.  W.  800,  6  K  E. 
A.  121,  17  Am.  St.  Rep.  178;  Gunther  v.  Ull- 
rich, 82  Wis.  222,  62  N.  W.  88,  33  Am.  St 
R^.  32;  Hart  v.  Moulton,  104  Wis.  349-359, 
80  N.  W.  599,  76  Am.  St  Rep.  881;  Krause 
V.  Busacker,  106  Wis,  850,  81  N.  W.  406; 
Znnker  v.  Kuebn,  113  Wis.  421,  88  N.  W. 
606. 

The  statement  mads  to  the  effect  that  It 
is  sufficient  to  put  the  party  making  misrep- 
resentations In  the  wrong,  if  he  knew,  or 
ought  to  have  known,  of  their  falsity,  Is  not 
grounded  on  principles  of  actionable  negli- 
gence, but  on  the  idea  that  he  who  makes 
representations  to  another  of  material  facta 
for  the  purpose  of  inducing  that  other  to  en- 
ter into  contractual  relations  with  him  and 
which  are  liable  to  accomplish  the  purpose 
without  want  of  ordinary  care  on  the  part 
of  such  other,  is  bound  at  his  peril  to  know 
whereof  he  speaks.  He  ought  to  know,  not 
because  he  should  not  act  negligently,  but 
because  under  such  circumstances  he  should 
not  speak  to  the  facts  at  all  for  the  purpose 
'  of  inducing  such  other  to  act  depending  on 
the  truthfulness  of  what  is  spoken  unless  he 
knows  that  his  representations  are  true  or 
expects  to  assume  the  burden  of  warrantor 
of  their  truthfulness.  Palmer  v.  Ooldberg, 
128  Wis.  103-111,  107  N.  W.  478. 

That  one  may  reasonably  act,  not  know- 
ing the  facts  Involved  himself — ^but  on  the 
faith  of  representations  by  another  who  de- 
sires to  enter  into  contractual  relations  with 
him — as  to  conditions  not  presently  observ- 
able, as  In  this  case,  is  so  elementary  that 
we  will  treat  it  as  a  matter  not  requiring 
extended  discussion  in  this  opinion. 

The  claim  Is  made  that  the  court  should 
not  have  set  aside  the  entire  deed  to  Corn- 
stock  because  of  the  false  representations 
as  to  the  particular  tract  of  land.    It  may 


be  that  a  showing  might  have  been  made 
which  would  have  moved  the  court  as  one 
of  conscience,  to  require  a  partial  restora- 
tl<Mi  of  the  consideration  paid  by  Comstock 
and  on  ccHiditlon  thereof  vacate  the  deed  to 
him  as  to  the  one  40  only.  The  court  at  the 
close  of  the  evidence  fully  acquitted  Mrs. 
Pier  of  any  actual  intention  to  perpetrate  a 
fraud  upon  respondents.  She  was  found 
to  have  Innocently,  so  far  as  moral  turpi- 
tude Is  concerned,  made  false  representa- 
tions as  to  a  material  ftict  under  such  cir- 
cumstances as  to  render  the  resulting  trans- 
action voidable.  The  court  concluded  a 
statemrait  of  his  views  thus:  "I  think  there 
is  sufficient  ground  for  a  court  of  equity  to 
set  aside  the  deed  so  far  as  it  relates  to 
this  tract  of  land."  Thereupon  respondents' 
counsel  said,  addressing  the  court:  "I  am 
perfectly  willing  for  you  to  make  It  optional 
with  defendants  whether  the  whole  deed 
shall  be  set  aside."  Then  counsel  for  appel- 
lants, addressed  the  cour^  saying:  "I  pre- 
fer to  take  the  judgment  of  the  court" 
Thereafter  findings  were  filed  closing  with 
an  order  for  judgment  as  we  find  it 

It  may  be  that  after  what  occurred  coun- 
sel for  appellants  should  have  offered  evi- 
dence, enabling  the  court  to  apportl<m  the 
consideration  paid  by  Comstock  so  as  to  re- 
quire restoration  to  him  of  the  equitable 
amount  which  the  particular  tract  repre- 
sented. It  is  the  opinion  of  the  court  that 
they  should,  and  that  since  they  failed  to 
do  so,  it  was  not  error  for  the  court  to  deal 
with  the  transaction  as  an  entirety,  as  was 
done.  Certainly,  as  the  case  was  submitted, 
there  was  no  basis  for  a  judicial  q)UttIng 
up  of  the  consideration. 

In  the  judgment  of  the  writer  the  offer  of 
respondents'  counsel  should,  under  the  cir- 
cumstances, have  been  regarded  as  consent- 
ing to  restore  the  whole  consideration  as  a 
condition  of  relief  from  the  deeds  and  mort- 
gage as  to  the  one  40.  That  is  reasonable.  It 
seems,  since  only  the  trifling  sum  of  $30  was 
involved.  It  Is  the  writer's  judgment  that 
General  Bragg,  the  able  counsel  who  repre; 
sented  appellants  at  the  trial,  so  understood  It 
He  Is  too  good  a  lawyer  to  have  supposed  it  re- 
quired consent  or  acceptance  of  an  option  on 
his  part  to  enable  the  court  to  act  upon  such 
an  offer  so  understood.  He  doubtless  acted  as 
he  did,  without  reflection,  through  caution  as 
to  prejudicing  the  rights  of  his  clients  on  ap- 
peal respecting  the  merits  of  the  case,  and 
was  surprised  when  the  order  for  judgment 
was  filed  providing  for  a  vacation  of  the 
deed  as  to  the  whole  22  40'8,  when  the  only 
misrepresentation  complained  of  was  as  to 
the  one  40,  and  the  statute  of  limitations 
had,  in  fact,  run  as  to  the  other  21  40's,  so 
that  the  vacation  of  the  deed  as  to  them 
could  not  be  of  any  benefit  to  respondents. 
I  think  the  trial  court  should  have  inter- 
preted the  offer  of  respondents'  counsel  as 
Indicated  and  ordered  judgment  vacating 
the  deed  as  to  the  one  tract  on  return  of  the 


Digitized  by  VjOOQ  l€ 


1048 


122  NOBTHWESTBRN  REPOBXER. 


(Wli. 


$30,  or  a  less  sum  If  re^wndents'  counsel  saw 
fit  to  make  proof  of  the  equitable  amount 

The  court,  howeyer.  Is  of  the  opinion,  aa 
Indicated,  that  as  appellants'  coimsel  elect- 
ed to  hare  the  case  submitted  the  trial  court 
did  not  commit  error;  that  it  was  warranted 
in  not  requiring  restoration  of  the  full  con- 
sideration tor  the  recovery  of  tbo  one  40 
and  in  not,  on  Its  own  motion,  reouiring 
proof  enabling  it  to  eqnital>1y  divide  the  con- 
sideration so  as  to  deal  with  the  deed  and 
mortgage  as  to  the  one  40  by  itself. 

The  foregoing  covers  all  questions  in  the 
case  which  appear  to  be  of  sufficient  mo- 
ment to  require  special  notice.  All  have  re- 
ceived consideration,  resulting,  in  the  opin- 
ion of  the  court,  that  the  Judgment  should 
be  affirmed. 

TIMLIN  and  BARNES,  JJ.,  took  no  part 


STATE    ex    rel.    NORTHWESTERN    COAL 
RT.  CO.  V.  WILLCUTS,  City  Clerlt,  et  al. 

(Supreme  Court  of  Wiscoosin.    Oct.  26,  1909.) 

1.  Cebtiobari  (i  27*)— PuBPOSK. 

Certiorari  lies  only  to  correct  jurisdictional 
errors. 

[Ed.  Note.— For  other  cases,  see  Certiorari, 
Cent.  Dig.  I  40;  Deo.  Dig.  9  27.»] 

2.  MnMTciFAi,  Corporations  (i  974*)— Taxa.- 
Tiow— Assessment— REStEDy— Cebtiobari. 

If  the  board  of  review  of  a  city  bad  no  ju- 
risdiction to  assess  railroad  property  for  taxes, 
the  question  may  lie  raised  on  certiorari. 

[Ed.  Note. — ^For  other  cases,  see  Manicipal 
Corporations,  Cent  Dig.  t  2086;  Dec.  Dig.  i 
974.*] 

8.  Taxation  ( S  200*)  —  Exemptions  —  Com- 
mutation OP  Tax— Pbopebtt  Included. 
Under  St.  1898,  ii  1215,  1225,  providing 
that  the  tax  and  license  fees  imposed  by  the  act 
shall  be  in  lien  of  all  other  taxes  on  the  property 
of  railroad  companies  necessarily  used  in  the 
operation  of  the  road,  the  question  for  consid- 
eration in  determining  whether  railroad  proper- 
ty is  taxable  is  whether  it  is  necessarily  used  for 
a  public  purpose  in  the  performance  of  its  du- 
ties as  a  common  carrier;  it  not  being  taxable 
if  so  .used. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  S  319;   Dec.  Dig.  §  200.*] 

4.  Taxation  (I  200*)  —  Exemption  —  Commu- 
tation OF  Tax — Pbopebtt  Included. 
Plaintiff  railroad  company  was  organized 
Dnder  St.  1898,  c.  87,  to  carry  freight  and  pas- 
sengers, and  obtained  a  charter  and  an  annual 
license  for  that  purpose.  It  had  about  eight 
miles  of  track,  including  switches,  the  main  ime 
being  about  three  miles  long,  and  its  principal 
business  was  carrying  coal  for  a  certain  coal 
company  from  a  dock  owned  by  plaintiff  and 
operated  by  the  coal  company,  whose  stockhold- 
ers owned  practically  all  the  stock  of  plaintift 
company,  though  it  also  carried  coal  for  oth- 
ers. Plaintiff  had  no  depots  or  facilities  for 
handling  passengers,  and,  in  fact,  carried  none, 
but  was  willing  to  carry  passengers  and  freight 
for  the  public  generally  if  requested;  its  road 
and  switches  being  subject  to  use  by  all  alike. 
Held,  that  plaintiff's  jjroperty  was  used  for  a 
public  purpose  so  that  it  was  a  common  carrier. 


and  hence  its  property  was  exempt  from  local 
taxation. 

[Ed.  Note.— For  other  cases,  see  Taxation, 
Cent.  Dig.  S  319;  Dec.  EHg.  |  200.*] 

6.  Taxation  (J  200*)— Exemption  —  Commu- 
tation OF  Tax— Pbopebtt  Included. 

Whether  the  property  of  a  railroad  com- 
pany is  devoted  to  a  pnblic  nse,  so  as  to  exempt 
It  from  taxation  in  addition  to  the  tax  and  li- 
cense fees  imposed  by  St.  1808,  K  1215,  122o, 
is  not  determined  by  the  extent  of  the  use  by 
the  public,  but  by  its  right  to  nse  it  and  the 
fact  that  it  is  used  by  all  who  desire  to  do  so. 

[Bid.  Note.— For  other  cases,  see  Taxation. 
Cent.  Dig.  {  319;  Dec.  Dig.  i  200.*] 

Appeal  from  Circuit  Court,  Douglas  Coun- 
ty;  A.  J.  Vinje,  Judge. 

Certiorari  by  the  State,  on  the  relation  of 
the  Northwestern  Coal  Railway  Company, 
against  R.  F.  WlUcuts,  city  clerk,  and  anoth- 
er. From  a  Judgment  quashing  the  writ,  re- 
lator appeals.  Reversed  and  remanded  for 
further  proceedings. 

Tliis  is  an  appeal  from  a  Judgment  qtush- 
Ing  a  writ  of  certiorari.  The  writ  was  Is- 
sued to  review  an  assessment  of  plalntifrs- 
property  in  the  city  of  Superior.  The  city 
clerk  of  the  city  of  Superior  made  return  to 
the  writ  showing  the  action  of  the  board  of 
review  respecting  the  assessment  including 
the  evidence  taken  before  the  board.  It  ap- 
pears from  the  record  before  the  court  on 
motion  to  quash  that  the  assessors  entered 
upon  the  assessment  roll  for  1908  lands  and 
personal  property  used  by  the  appellant  in 
the  operation  of  its  railroad  In  the  city  of 
Superior;  that  the  property  consisted  main- 
ly of  land  on  which  the  railroad  was  con- 
structed. Bide  tracks,  a  roundhouse  for  stor- 
ing engines,  and  a  scalehouse  containing  rail- 
road scales  and  two  locomotives.  The  in- 
corporators of  the  plaintiff  company  duly  in- 
corporated for  the  purpose  of  constructing, 
maintaining,  and  operating  the  railroad  in 
question  for  the  carriage  of  freight  and  pas- 
sengers, and  a  patent  was  duly  issued  to- 
plaintiff  under  said  articles  of  Incorporation 
in  December,  1892,  authorizing  plaintiff  to- 
construct,  maintain,  and  operate  a  railroad 
for  public  use  In  the  conveyance  of  t)er8ons- 
and  property  from  a  point  on  Allouez  Bay  at 
or  near  the  mouth  of  the  NemadJI  river  In 
Douglas  county.  Wis.,  to  some  point  on  the 
St.  Louis  river  on  the  boundary  line  of  the- 
state  in  section  1,  town  48,  range  15,  Douglas 
county,  a  distance  of  about  12  miles.  The 
plalntlfT  paid  In  the  state  treasury  of  tbe 
state  of  Wisconsin  the  license  fee  required 
by  law,  and  in  March,  1908,  a  license  was- 
Issued  to  plaintiff  to  operate  Its  railroad 
from  January  1  to  December  31,  1908,  ac- 
cording to  law;  that  the  plaintiff  has  been 
assessed  by  the  state  board  of  assessment 
during  the  years  the  state  board  has  been 
in  existence,  and  previous  to  that  time  paid 
a  license  to  the  state  for  the  operation  of 
the  railroad  in  question;  that  the  plaintiff 


•For  otliar  case*  sea  sunt  topic  and  aectlon  NUMBER  In  Dec.  4b  Am.  Digs.  1907  to  date,  *  Reporter  IndexSi. 


Digitized  by  VjOOQ  l€ 


Wlfc) 


STATE  T.  WILL0UT8. 


104» 


haa  rendered  reports  to  tbe  Bailroad  Com- 
mission on  its  property  since  Jone^  1901,  and 
made  reports  to  tbe  Interstate  Commerce 
Commission  stuce  that  time;  tbat  the  plain- 
tiff has  a  tariff  of  rates  pr^ared  on  the 
transfer  of  coal  to  connecting  lines,  which 
rate  Is  posted  as  requested  by  the  Interstate 
Commerce  Commission  and  the  Railway  Com- 
mission. The  property  of  the  plaintiff  Is 
shown  on  the  statement  issued  by  the  State 
Board  of  Taxation,  showing  valuation  placed 
upon  railroads  in  the  state  for  the  year  1008, 
and  Is  the  same  property  in  question.  This 
property  was  acquired  by  plaintiff  soon  after 
its  organization,  partly  by  purchase  and  part- 
ly by  condemnation.  Originally  the  road  ex- 
tended to  the  St  Louis  river,  and  In  1889  a 
part  of  the  road  was  sold  to  the  Great 
Northern  Railway  Company.  The  road  now 
owned  by  the  plaintiff  is  used  for  the  trans- 
portation of  freight  principally.  It  accepts 
any  business  that  is  offered  and  connects 
with  the  Great  Northern,  Duluth,  South  Shore 
&  Atlantic,  Omaha,  and  Northern  Pacific 
Railway  Companies.  Its  manner  of  handling 
freight  Is  similar  to  that  of  other  terminal 
companies,  90  to  95  per  cent,  or  more  of 
which  business  Is  the  transportation  of  coal. 
The  northern  terminus  of  the  road  Is  the  coal 
dock,  the  other  connecting  with  other  lines 
of  railroad  in  the  city  of  Superior.  The 
company  has  about  eight  miles  of  track,  in- 
cluding switch  tracks;  the  main  line  being 
a  trifle  less  than  three  miles.  Plaintiff  owns 
the  coal  dock  which  Is  operated  by  the  Pitts- 
burgh  Coal  Company  of  Wisconsin.  The 
principal  business  of  plaintiff  is  securing 
empty  cars,  taking  them  to  the  dock,  and 
returning  them  loaded  with  coal  to  the  con- 
necting railroads.  The  coal  is  received  at 
the  dock  from  boats,  but  all  coal  received  at 
the  dock  is  not  received  by  the  Pittsburgh 
Coal  Company.  The  dock  at  various  times 
has  handled  coal  for  other  parties  than  the 
Pittsburgh  Coal  Company,  but  the  bulk  of 
the  coal  Is  received  by  said  company.  Plain- 
tiff handled  about  6,000  tons  which  was  not 
purchased  from  nor  sold  by  the  Pittsburgh 
Coal  Company.  Plaintiff's  tariff  rate  cov- 
ered nothing  but  coal.  It  had  no  depot  and 
no  cars  of  any  kind,  but  had  an  office  build- 
ing. Plaintiff  Is  a  separate  corporation  from 
the  Pittsburgh  Coal  Company,  but  the  own- 
ership of  the  stock  is  practically  the  same. 
The  connecting  lines  of  railroad  paid  plain- 
tiff's charge  for  switching  coal  and  its  side 
tracks  were  used  for  storing  loaded  and 
empty  cars.  Plaintiff's  road  would  accept 
any  freight  or  passengers  or  anything  else 
— any  kind  of  cars  that  Is  presented  for 
transportation  and  has  handled  passenger 
cars.  The  property  used  in  operating  plain- 
tiff road  having  been  assessed  by  the  city 
of  Superior  for  local  taxation  by  the  board 
of  review,  this  proceeding  was  brought  to 
vacate  and  set  aside  the  assessment. 

Grace  &  Hudnall,  for  appellant    Thos.  E. 
I^ons  and  T.  L.  Mcintosh,  tor  respondents. 


KERWIN,  J.  (after  stating  the  facts  a» 
above).  The  sole  question  upon  this  appeal 
Is:  Was  the  property  of  the  plaintiff  taxable 
by  the  city  of  Superior?  This  question  turns 
on  whether  the  property  Is  exempt  from 
taxation  under  the  statute,  because  not  being 
used  for  railroad  purposes.  It  Is  the  con- 
tention of  respondent  that  the  railroad  of 
plaintiff  is  not  operated  for  public  use,  and 
Is  not  a  common  carrier.  Therefore,  Its 
property  Is  subject  to  local  taxation.  The 
plaintiff  was  organized  under  chapter  87, 
St  Wis.,  for  public  purposes  for  the  carriage 
of  freight  and  passengers.  No  question  is 
made  upon  this  point,  but  It  is  insisted  that 
It  is  operating  Its  railroad  for  a  private  and 
not  a  public  purpose ;  therefore.  Its  property 
so  used  Is  subject  to  local  taxation.  It  may 
be  conceded,  as  Insisted  by  respondents,  that 
certiorari  reaches  only  jurisdictional  errors. 
Therefore,  unless  the  property  put  upon  the 
assessment  roll  was  .not  subject  to  taxation, 
the  Judgment  below  was  right  The  facts 
aa  they  appear  from  the  record  are  undis- 
puted. Therefore  the  question  Is  sharply 
raised  whether  the  board  of  review  was 
acting  without  Jurisdiction  In  assessing  the 
property  of  the  appellant,  and  this  question 
may  be  raised  by  certiorari  proceedings. 
State  ex  rel.  Augusta  et  al.  v.  Losby  et  al.. 
115  Wis.  57,  90  N.  W.  188;  State  ex  rel. 
Foster  L.  Co.  v.  WiUiams,  123  Wis.  61,  100 
N.  W.  1048.  Prior  to  the  present  railway 
tax  law,  "the  tracks,  right  6t  way,  depot 
grounds,  buildings,  machine  shops,  rolling 
stock,  and  all  other  property  necessarily 
used  In  operating  any  raUroad  in  this  state 
belonging  to  any  railroad  company"  have  been 
exempt  from  local  taxation.  Subdivision  14, 
i  1038,  St  1898.  Sections  1215-1225,  .St. 
1898,  provide  that  "the  tax  and  license  fees 
Imposed  by  this  act  shall  be  In  lieu  of  all 
other  taxes  on  the  property  of  such  railroad 
companies,  necessarily  used  in  the  operation 
of  said  railroads  In  this  state."  So,  under  the 
law  in  relation  to  the  subject  under  consider- 
ation, the  question  is  whether  the  property  is 
necessarily  used  for  a  public  or  quasi  public 
purpose  In  order  to  enable  the  plaintiff  to  per- 
form its  duty  as  a  common  carrier,  and 
whether  It  was  in  1908  used  for  such  pur- 
pose. Duluth,  S.  S.  &  A.  R.  Co.  V.  Douglas 
Co.,  103  Wis.  75,  79  N.  W.  84;  Chicago,  St 
P.,  M.  &  O.  R.  Co.  V.  Douglas  Co.,  122  Wis. 
273,  99  N.  W.  1030;  Merrill  R.  &  L.  Co.  et  al. 
V.  Merrill  et  al.,  119  Wis.  249,  96  N.  W.  686. 
The  property  owned  by  the  plaintiff  and  at- 
tempted to  be  taxed  by  the  city  of  Superior 
was  necessary  to  enable  the  plaintiff  to  carry 
out  Its  franchise  obligations,  and  was  there- 
fore not  subject  to  taxation  If  the  use  to 
which  It  was  applied  was  a  public  use  under 
the  articles  of  incorporation  and  charter  of 
plalnUff.  Chicago  &  N.  W.  R.  Co.  v.  Forest 
Co.  et  al.,  96  Wis.  80,  70  N.  W.  77;  Chicago, 
M.  &  St  P.  R.  Co.  V.  Milwaukee,  80  Wis. 
506,  62  N.  W.  417,  28  L.  R.  A.  249;  Wash- 
bum  V.  Washburn  W.  Co.,  120  Wis.  575,  9S 


Digitized  by 


L-oogle 


1050 


122  NORTHWESTERN  REPORTER. 


(Wis. 


N.  W.  539;  In  re  Milwaukee  S.  R.  Co.,  1241 
Wis.  490,  102  N.  W.  401.  It  Is  without  dl8-| 
pute  that  plaintiff  was  regularly  organized 
under  chapter  87  for  a  public  purpose,  nftme- 
ly,  to  carry  freight  and  passengers,  and  a 
charter  granted  from  the  state  for  such  pur- 
pose and  annually  from  the  time  of  Its  or- 
ganization received  a  license  from  the  state 
to  operate  Its  road  and  paid  the  license  fees. 
But  the  argument  is  that  it  was  doing  a  pri- 
vate business.  This  argument  Is  based  upon 
the  ground  that  its  principal  business  Is  not 
a  general  railroad  business  for  the  carriage 
of  freight  and  passengers,  but  Is  a  private 
business.  Several  cases  are ,  cited  by  re- 
spondents, but  we  shall  refer  to  those  only 
In  this  court,  and  think  It  will  be  seen  that 
they  are  not  controlling  In  the  case  now  be- 
fore us.  In  Chicago  &  N.  W.  R.  Co.  v.  Oah- 
kosh  A.  &  B.  W.  R.  Co.,  107  Wis.  192,  83 
N.  W.  294,  the  corporation  was  organized  to 
carry  persons  only,  not  passengers  and 
freight,  and  it  was  held  that  the  statute 
does  not  authorize  organizations  to  carry 
passengers  only;  hence  the  articles  did  not 
show  that  the  corporation  was  a  common  car- 
rier. 

Maglnnls  v.  Knickerbocker  I.  Co.,  112  Wis. 
385,  88  N.  W.  800,  69  L.  R.  A.  833,  Is  a  case 
where  the  railroad  company  was  organized 
as  a  purely  private  enterprise;  therefore 
did  not  have  the  power  of  eminent  domain. 
To  the  same  effect  are  McKivergan  v.  Alex- 
ander &  B.  L.  Co.,  124  Wis.  60,  102  N.  W. 
332,  and  Wallman  v.  R.  Connor  Co.,  115  Wis. 
617,  92  N.  W.  374.  And  in  Wisconsin  W.  Co. 
V.  Wlnans  et  al.,  86  Wis.  26,  54  N.  W.  1003, 
20  L.  R.  A.  662,  39  Am.  St  Rep.  813,  the  ques- 
tion was  whether  the  company  had  the  power 
to  condemn  land  under  its  charter,  and  It 
was  held  that  the  right  turned  upon  whether 
the  property  sought  to  be  taken  was  neces- 
sary for  public  use.  Under  the  rule  laid 
down  in  these  cases.  It  is  said  that  the  use 
to  which  the  plaintiff's  property  Is  put  is  not 
a  public  use,  because  its  principal  business 
Is  carrying  coal  of  the  Pittsburgh  Ooal  Com- 
pany from  the  dock  owned  by  plaintiff  and 
operated  by  the  coal  company  and  that  plain- 
tiff has  no  station  or  depot,  and  that  one  end 
of  its  line  terminates  at  Its  coal  dock,  and 
the  other  where  it  connects  with  the  North- 
ern Pacific,  Omaha,  Duluth,  South  Shore  & 
Atlantic  and  Great  Northern  railway  tracks, 
and  that  it  has  no  facilities  for  handling 
passengers,  and  is  so  situated  that  it  receives 
practically  no  freight  to  handle  except  coal 
from  its  own  dock  operated  by  the  Pittsburgh 
Coal  Company,  the  stock  of  which  latter  com- 
pany is  owned  by  the  same  parties  who  own 
and  control  the  plaintiff  company.  The  mere 
fact,  however,  that  a  large  part  of  the  busi- 
ness of  plaintiff  was  done  for  the  Pittsburgh 
Coal  Company  in  which  It  Is  Interested  did 
not  deprive  plaintiff  of  Its  character  of  com- 
mon carrier  or  render  its  property  devoted 
to  a  private  use  so  long  as  It  was  In  fact 
organized  as  a  common  carrier  and  serving 


the  public  in  that  capacity,  although  to  a 
limited  extent  because  of  location  and  con- 
ditions which  limited  such  services.  Kan- 
sas  &  T.  G.  R.  Co.  ▼.  Northwestern  C.  &  M. 
Co.,  161  Mo.  288,  61  S.  W.  685,  61  L.  R.  A. 
936,  84  Am.  St  Rep.  717;  Riley  v.  Charles- 
ton U.  S.  Co.,  71  S.  C.  457,  61  S.  B.  486,  110 
Am.  St  Rep.  579.  Whether  the  property  of 
plaintiff  is  devoted  to  a  public  use  is  not  de- 
termined by  the  extent  of  the  use,  but  by  the 
right  of  the  public  generally  to  use  it,  and 
the  fact  that  it  Is  used  for  public  purposes 
by  all  who  desire  to  use  it.  Upon  the  ad- 
mitted facts  as  they  appear  from  the  record 
we  see  no  escape  from  the  conclusion  that 
the  plaintiff  was  a  common  carrier  and  Its 
property  devoted  to  a  public  use,  and,  though 
limited  in  the  extent  of  such  business,  it  was 
doing  the  business  of  a  common  carrier.  Its 
road  and  switch  tracks  are  subject  to  use  by 
all  the  public.  The  road  carried  for  the  pub- 
lic generally  between  Its  termini,  the  coal 
dock,  and  severa^  other  railroads.  It  did  not 
have  the  usual  accommodations  for  carrying 
passengers  because  of  location  and  condi- 
tions, and  because  of  such  location  and  con- 
ditions there  were  no  passengers  to  carry. 
But  it  held  Itself  out  ready  and  willing  to 
carry  all  passengers,  and  would  accept  any 
passengers  or  any  kind*  of  cars  presented 
for  transportation  over  its  line  without  di»- 
crimination.  It  Is  true  the  business  was 
largely  freight  and  largely  the  freight  of  the 
Pittsburgh  Coal  Company,  but  It  is  also  true 
that  between  the  termini  of  its  road  the 
plaintiff  served  all  people  alike  without  dis- 
crimination and  in  compliance  with  law  ap- 
plicable to  conmion  carriers,  and  it  was 
therefore  at  least  doing  the  business  of  a 
common  carrier,  and  ready  and  willing  to  do 
all  business  presented  in  the  locality  it  oper- 
ated. It  therefore  stood  on  the  same  basis 
as  any  other  common  carrier  organized  un- 
der the  statute  respecting  the  taxation  of 
its  property.  Chicago  4  N.  W.  R.  Co.  v. 
Morehouse  et  al.,  112  Wis.  1,  87  N.  W.  849, 
66  L.  R.  A.  240,  88  Am.  St  Rep.  918 ;  Butte 
&  A.  P.  R.  Co.  V.  Montana  U.  R.  Co.,  16 
Mont  604,  41  Pac.  232,  81  L.  R.  A.  298,  50 
Am.  St  Rep.  608;  Chicago,  B.  &  N.  R.  Co. 
V,  Porter,  43  Minn.  627,  46  N.  W.  75 ;  State 
ex  rel.  Duluth  B.  L.  R.  Co.  ▼.  District  Court 
etc.,  54  Minn.  34,  66  N.  W.  816;  Bridal  Veil 
li.  Co.  T.  Johnson,  30  Or.  205,  46  Paa  790,  84 
L.  R.  A.  868,  60  Am.  St  Rep.  818;  Kansas 
&  T.  C.  Co.  V.  Northwestern  O.  &  M.  Co.. 
161  Mo.  288,  61  S.  W.  685,  51  L.  R.  A.  936. 
84  Am.  St  Rep.  717 ;  Chicago,  St  P.,  M.  &  O. 
R.  Co.  V.  Douglas  Co.,  122  Wis.  273,  90  N. 
W.  1030;  Duluth,  S.  S.  &  A.  R.  Co.  v.  Doug- 
las Co.,  103  Wis.  76,  79  N.  W.  34. 

We  are  convinced  upon  principle  and  au- 
thority that  the  plaintiff  is  a  common  car- 
rier, and  that  the  property  in  question  used 
In  operating  its  road  was  not  subject  to  tax- 
ation by  the  city  of  Superior.  Therefore  the 
Judgment  quashing  the  writ  of  certiorari 
must  be  reversed. 


Digitized  by  VjOOQ  IC 


Wlfc) 


WHITE  T.  WHITK. 


1051 


The  Judgment  of  the  court  below  is  revers- 
ed, and  the  cause  remanded  for  farther  pro- 
ceedings according  to  law. 


WHITD  r.  WHITBJ  et  al. 

(Supreme  Court  of  Wisconsin.    Oct  26,  1900.) 

1.  Husband  and  Wife  (S  330*)— Auknation 
OF  AiTEcrnoNS— Pasties. 

Under  St.  1898,  |  2345,  as  amended  by 
Laws  1905,  p.  35,  c.  17,  authorizing  a  wife  to 
maintain  an  action  for  alienation  of  her  hus- 
band's affections,  her  husband  is  not  a  proper 
I>art7  d'efendant  to  such  action. 

WEd.  Note. — For  other  cases,  see  Husband  and 
ife.  Cent.  Dig.  I  1122;   Dec.  Dig.  (  330.*] 

a  Husband  and  Wira  (§  333*)— Ai.ibnation 

OF  Affections— BviDENCE. 

In  an  action  by  a  wife  for  alienation  of 
her  husband's  affections,  plaintiff  may  testify  to 
declarations  by  her  husband  as  to  offers  to  bim 
by  defendants  to  induce  him  to  abandon  her. 

[Ed.  Note.— For  other  cases,  see  Husband  and 
Wife,  Cent.  Dig.  S  1124;    Dec.  Dig.  i  333.*] 

3.  Afpbai.  and  Ebbob  (|  1033*)— HARvr.rafl 
Bbbob— Admission  of  Evidence. 

The  admission  of  improper  evidence  is 
harmless  where  the  evidence  was  favorable  to 
appellant 

[E!d.  Note. — For  other  cases,  see  Appeal  and 
Error.  Cent  Dig.  U  4052-40C2;  Dec.  Dig.  S 
1033.'] 

4.  Husband  and  Wifb  ({  333*)— Alienation 
OF  Affections— Evidence. 

In  determining  whether  parents  maliciously 
conspired  to  alienate  their  son's  affections  for 
his  wife,  the  evidence  should  be  considered  in 
view  of  the  rif^hts  and  obligations  of  the  parents 
respecting  their  son's  welfare  and  happiness. 

[Ed.  Note.— For  other  cases,  see  Husband  and 
Wife,  Cent  Dig.  |  1134;    Dec.  Dig.  §  333.*] 

5.  Affkal  and  £}bbob  (i  1010*)— Reviewing 
Pacts— Findings  bt  Cdubt. 

The  findings  of  the  court  as  to  facts  must 
stand  unless  the  evidence  in  support  thereof  is 
incredible  or  not  of  sufficient  weight  to  warrant 
them. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error^  Cent  Dig.  §{  897»-3g82;    Dec  Dig.  | 

6.  Dauaoes  (t  92*)— EXEUPI.ABY  Dauaoes— 
Persons  Liable. 

i\.  general  judgment  In  an  action  against 
Joint  defendants  for  punitory  damages  is  prop- 
er, though  one  defendant  is  without  property 
and  the  other  is  wealthy. 

[E<d.  Note.— For  other  cases,  see  Damages, 
Dec.  Dig.  <  92.*] 

7.  Husband  and  Wife  (t  334*)— Alienation 

OF   AfFECTIONB— EXEIIPLABY    DAMAGES. 

Punitory  damages  may  be  awarded  for  the 
alienation  of  a  husband's  affections  for  his  wife. 
[Eld.  Note. — For  other  cases,  see  Husband  and 
Wife,  Cent  tHg.  i  1125;  Dec.  Dig.  {  334.*] 

8.  Husband  and  Wife  (|  334*)— Alienation 

OF    AFFEOnONB— EilCESSIVENBSB     OF     DAMA- 
GES. 

An  award  of  $5,000  as  compensation  and 
$1,500  as  punitory  damages  for  alienation  of  a 
husband's  affections  for  his  wife  held  not  ex- 
cessive. 

[Ed.  Note.— For  other  cases,  see  Husband  and 
Wife,  Cent  Dig.  I  1125;  Dec.  Dig.  {  334.*] 

Appeal  from  Circuit  Court,  Waukesha 
Coanty ;  Martin  L.  Lueck,  Judge. 


Action  by  Charlotte  B.  White  against  Fran- 
ces L.  White  and  othera  From  a  Judgment 
for  plaintiff,  defendants  Frances  L.  White, 
Mary  A.  Stewart,  and  Frederick  H.  White, 
Jr.,  appeal.  Reversed  as  to  defendant  Fred- 
erick H.  White,  Jr.,  and  afDrmed  as  to  the 
other  defendants. 

See^  also,  182  Wis.  121,  111  N,  W.  1116. 

This  Is  an  action  by  the  plaintiff,  who  is 
the  wife  of  Frederick  H.  White,  Jr.,  for  the 
alleged  cause  of  action  that  the  defendants 
maliciously,  wrongfully,  and  wickedly  confed- 
erated, conspired,  and  agreed  to  alienate  and 
destroy  the  love  and  affection  of  Frederick 
H.  White,  Jr.,  for  plaintiff  as  his  wife,  and 
to  Induce  him  to  desert  taer,  and  to  prevent 
him  from  providing  her  the  necessaries  of 
life,  and  of  discharging  toward  her  the  duties 
of  a  husband.  It  Is  alleged  that  the  defend- 
ants, to  accomplish  the  objects  of  the  mall- 
clous,  wrongful,  and  wicked  conspiracy  and 
agreement,  urged  and  persuaded  Frederick 
H.  White,  Jr.,  to  desert  and  leave  the  plain- 
tiff, and  to  go  and  remain  beyond  the  borders 
of  the  state,  wherein  plaintiff  and  her  hus- 
band had  resided  as  husband  and  .wife  up  to 
the  time  be  deserted  her  in  July,  1905,  and 
for  this  wrongful  purpose  the  conspirators 
offered  him  sums  of  money  and  to  pay  him  a 
fixed  sum  of  money  annually  to  so  desert  the 
plaintiff.  It  is  also  claimed  that  the  defend- 
ants Influenced  him  to  wrongfully  leave  her 
by  threatening  that,  If  he  did  not  comply 
with  such  wrongftil  object,  he  wotdd  be  dis- 
inherited and  barred  from  securing  any  por- 
tion of  his  parents'  estates.  It  is  also  alleged 
that  Frederick  H.  White,  Jr.,  was  Induced  to 
act  upon  such  wrongful  importunities,  and 
that  be  became  Imbued  vrlth  hatred  and  ill 
will  toward  plaintiff,  which  alienated  and 
destroyed  his  affection  for  her,  to' her  great 
injury  and  damage. 

It  appears:  That  Frederick  H.  White,  Jr., 
Is  the  husband  of  the  plaintiff,  and  that  they 
were  married  Dec^uber  11,  1901.  That  the 
defendants  Frances  L.  and  Frederick  H. 
White,  Sr.,  are  his  parents.  At  the  time  of 
the  marriage  the  plaintiff  was  20  years  of 
age  and  her  husband  was  21.  He  was  then 
attending  a  medical  school  and  she  a  business 
college  in  Milwaukee.  They  had  become  ac- 
quainted about  a  year  before  their  marriage, 
and  for  the  two  months  preceding  their  mar- 
riage they  had  met  daily  on  their  car  trips  to 
and  from  Milwaukee  and  Waukesha.  They 
were  married  without  their  parents'  knowl- 
edge. The  parents  were  Informed  of  the 
marriage  by  telegram  from  the  hnsband,  and 
they  returned  to  Waukesha,  but  did  not  im- 
mediately live  in  his  parents'  home,  for  the 
alleged  reason  that  his  parents  were  cool 
and  Indifferent  toward  plaintiff  and  her  hus- 
band. A  week  thereafter  plaintiff  and  her 
husband  made  their  residence  with  his  par- 
ents at  Waukesha.  His  parents  soon  there- 
after gave  a  reception  to  present  plaintiff 


•For  other 


see  lame  topic  and  section  NUMBER  In  Dae.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


1052 


122  NORTHWESTERN  REPORTER. 


(WJa. 


and  her  husband  to  the  friends  of  the  fam- 
ily. Plaintiff  and  her  husband  continued  to 
reside  with  bis  parents  at  Waukesha  until 
the  summer  of  1903.  At  dlCTerent  times  dur- 
ing this  period,  while  so  residing  together 
at  the  White  home  In  Waukesha,  disagree- 
ments and  quarrels  arose  between  plaintiff 
and  her  mother-in-law,  Frances  L.  White 
Her  mother-in-law  spoke  of  the  plaintiff  in 
a  derogatory  way,  depreciated  her  marriage 
to  her  son,  and  characterized  her  as  unfit  to 
be  his  wife.  In  the  summer  of  1903  plain- 
tiff and  her  husband  moved  to  Milwaukee, 
where  his  parents  assisted  them  to  secure 
and  furnish  a  dwelling,  which  plaintiff  and 
her  husband  occupied  until  the  late  autumn 
of  1904,  when  they  broke  up  housekeeping 
and  took  up  their  residence  with  plaintiff's 
sister,  Mrs.  Barnum,  at  Waukesha,  Wis., 
where  they  continued  to  reside  as  husband 
and  wife  until  July  10,  1905.  when  he  left 
and  refused  longer  to  life  with  and  provide 
for  her,  as  he  has  ever  since  refused  to  do. 
The  plaintiff  avers  that  this  desertion  was 
the  culmination  of  the  malicious  conspiracy 
of  bis  parents  and  Mary  A.  Stewart  to  which 
her  husband  finally  becamer  a  party.  The 
husband  asserts  that  he  left  her  and  refused 
further  to  live  with  and  support  her  as  his 
wife  because  of  her  ill  treatment  of  him, 
due  to  her  ungovernable  disposition,  which 
resulted  in  personal  violence  to  him,  and  a 
failure  to  do  her  duty  as  his  wife. 

It  appears  that  Mary  A.  Stewart  had  liv- 
ed with  Mr.  and  Mrs.  White,  Sr.,  for  many 
years;  that  she  was  retained  by  them  in 
their  family;  that  she  assisted  in  raising 
Frederick  and  the  other  children;  that  she 
was  of  aid  and  assistance  in  various  ways 
to  Mrs.  White  personally  and  also  in  the 
household  affairs,  and  that  she  was  actively 
Interested  In  furthering  Frances  L.  White's 
wishes  and  desires  respecting  plaintiff  and 
her  husband's  marital  relations  and  affairs. 
Frances  L.  White,  her  children,  and  Mary 
A.  Stewart  went  to  San  Antonio,  Tex.,  for 
the  winter  of  1904-05.  They  wrote  letters 
from  there  to  Frederick  H.  White,  Jr.,  in 
November  and  December,  referring  to  plain- 
tiff in  terms  of  reproach,  reflecting  on  her 
as  unworthy  of  his  care,  attention,  and  so- 
ciety, and  as  unfit  to  be  his  wife,  and  sug- 
gesting pecuniary  inducements  if  he  should 
rid  himself  of  her  and  seek  release  from  bis 
marriage  obligations.  After  the  receipt  of 
these  letters,  be  visited  the  family  in  Texas. 
The  evidence  tends  to  show  that  his  mother 
and  Mary  Stewart  then  tried  to  Induce  him  to 
leave  plaintiff,  return  to  his  medical  studies 
at  his  mother's  cost,  and  that,  upon  his  dec- 
lination to  comply  with  their  solicitations, 
he  was  Informed  by  them  that  his  parents 
refused  to  longer  give  him  assistance  and 
financial  aid.  In  the  following  July  he  left 
the  plaintiff,  and  refused  to  reside  with  her 
as  his  wife  or  to  maintain  a  home  for  her 
support    Since  them  he  has  resided  with  his 


parents,  and  has  attended  medical  college 
as  his  mother  bad  proposed  and  urged  hUn 
to  do  before  he  left  the  plaintiff. 

Upon  these  facts  and  other  evidential  facts 
corroborative  thereof  the  court  found  that 
no  cause  of  action  was  shown  against  Fred- 
erick H.  White,  Sr.,  and  Harry  W.  Wood, 
and  dismissed  the  action  as  to  them.  The 
court  also  found  that  the  defendants  Frances 
li.  White  and  Mary  A.  Stewart  contrived, 
conspired,  and  associated  together  for  the 
purpose  of  preventing  plaintiff  from  per- 
forming her  marital  duties  toward  her  hus- 
band, and  from  enjoying  and  receiving  her 
husband's  society  and  support;  that  they 
tbus  wrongfully  and  maliciously  intermed- 
dled in  the  marital  relations  of  plaintiff  and 
her  husband,  and  malidously  urged,  per- 
suaded, and  induced  him  to  desert  and  aban- 
don her  that  they  might  thereby  accomplish 
their  wrongful  purpose  of  destroying  his  love 
and  affection  for  her,  and  of  Inducing  him 
forever  to  desert  her  as  his  wife;  and  that 
they  thereby  had  deprived  her  of  his  society 
and  aid  and  comfort  as  a  husband.  The 
court  awarded  plaintiff  $5,000  as  compensa- 
tion and  $1,500  as  punitory  damages  in  the 
action,  with  costs.  The  court  also  found 
that  the  plaintiff's  husband  had  joined  his 
mother  and  Mary  A.  Stewart  In  the  mall- 
cioud  and  wrongful  conspiracy,  and  awarded 
judgment  accordingly.  This  is  an  appeal 
from  such  judgment. 

Ryan,  Merton  &  Newbury,  for  appellants. 
Clasen  &  Walsh  (Tullar  &  Lockney,  of  coon- 
sel),  for  respondent 

SLEBECKER,  J.  (after  stating  the  facts 
as  above).  The  defendants  contend  that  the 
court  erroneously  held  that  plaintiff's  hus- 
band was  a  proper  party  defendant  and  a 
party  to  the  conspiracy  for  the  alienation 
and  loss  of  his  affection  and  society.  Sec- 
tion 2345,  St  189S,  as  amended  by  chapter 
17,  p.  35,  lAws  1905,  provides  that:  "fflie 
[a  wife]  may  also  bring  and  maintain  an  ac- 
tion in  her  own  name,  and  for  her  own  ben- 
efit for  the  alienation  and  the  loss  of  the 
affection  and  society  of  her  husband."  This 
statute,  which  confers  rights  on  a  married 
woman  to  maintain  an  action  in  ber  own 
name  as  to  her  separate  prc^erty,  business, 
personal  earnings,  or  for  any  injury  to  her 
person  or  character  as  if  she  were  sole,  had 
been  construed  before  the  amendment  to 
confer  on  her  the  right,  to  maintain  an  action 
against  her  husband  for  violation  of  those 
rights  as  she  had  a  right  against  strangers. 
Carney  v.  Glelssner,  62  Wis.  493,  22  N.  W. 
735;  Brader  v.  Brader,  110  Wis.,  op.  420,  85 
N.  W.  681. 

The  question  here  Is:  Is  the  husband  a 
joint  tort-feasor  in  the  commission  of  the 
wrong  constituting  the  plaintiff's  cause  of 
action?  True,  he  was  guilty  of  the  wrong  of 
leaving  the  plaintiff  in  consequence  of  tbe 


Digitized  by 


Google 


WlB.) 


WHITE  V.  WHITE. 


1033 


■wrongful  conspiracy  and  of  cansing  her  the 
4oB8  of  his  affection  and  society.  This,  how- 
ever, Is  the  result  of  the  tort  alleged  to  have 
been  committed  by  the  other  defendants, 
namely,  their  malicious  purpose  of  the  will- 
ful and  Intentional  alienation  of  him  from 
her  and  the  causing  the  loss  of  his  affection 
and  society.  The  gist  of  the  action  Is  the 
damage  resulting  to  the  plaintiff  by  the 
wrongful  conduct  of  those  who  induced  the 
■alienation  and  the  loss  of  her  husband's  af- 
fection and  society.  This  is  attributable  to 
the  acts  and  conduct  of  the  persons  who  in- 
fluenced the  husband  to  yield  to  their  wrong- 
ful purpose.  Their  acts  In  furtherance  of 
this  purpose  constitute  the  tort  for  which 
the  resultant  damages  are  recoverable.  It 
-cannot  be  said  that  the  husband  was  an  ac- 
tive participant  In  carrying  out  the  objects 
of  the  wrongful  conspiracy  to  accomplish 
the  alienation  and  the  loss  of  the  husband's 
-affection  for  his  wife  and  the  consequent 
loss  of  his  society  by  her.  The  wrongdoers 
acted  upon  and  through  him  to  accomplish 
their  illegal  purpose  against  the  plaintiff, 
and  the  cause  of  action  was  complete  when 
their  machinations  had  operated  to  cause 
plaintiff  the  alienation  and  the  loss  of  affec- 
tion and  society  of  her  husband.  He  is  not, 
therefore,  a  joint  tort-feasor  with  those  who 
wrongfully  brought  about  this  state  of  mind, 
and  hence  he  cannot  be  held  to  have  Joined 
■or  confederated  with  the  other  active  par- 
ties in  the  wrong  constituting  the  wife's 
■cause  of  action.  In  so  far  as  his  conduct 
may  be  violative  of  any  marital  rights  of  the 
wife,  he  is  personally  responsiUe  to  her 
Independently  of  the  defendants'  wrong 
through  which  he  was  led  to  breach  his  le- 
gal obligations,  and  the  wife  may  seek  her 
Tedress  In  an  appropriate  action  against  him. 
From  these  considerations  it  follows  that  he 
-was  not  a  party  to  the  tort,  and  hence  not  a 
ftroper  party  defendant. 
'  It  Is  suggested  that  this  court  passed  on 
this  question  on  the  former  appeal  of  the 
<a8e  (132  Wis.  121,  111  N.  W.  1116),  and  held 
ab&t  the  husband  was  a  proper  party  defend- 
ant This  question  was  not  presented  on 
that  appeal,  and  is  not  embraced  in  the  de- 
■clslon.  The  complaint,  considered  on  that 
appeal  upon  general  demurrer,  also  contains 
allegations  to  the  effect  that  Frederick  H. 
White,  Jr.,  and  the  other  defendants,  after 
tiia  separation  from  the  plaintiff,  had  mali- 
ciously conspired  to  entice  and  induce  her  in- 
to unchaste  and  criminal  acts  to  degrade 
and  injure  her  for  the  purpose  of  enabling 
her  husband  to  legally  separate  from  her. 
No  proof  was  offered  to  sustain  this  allega- 
tion, and  it  is  therefore  dropped  from  the 
■consideration  of  the  case  on  this  appeal. 

The  court  permitted  plaintiff  to  testify  to 
declarations  made  by  her  husband  to  her 
and  others,  which  purport  to  give  the  offers 
4ind  inducements  held  out  to  him  by  his  par- 


ents to  induce  him  to  separate  from  and 
abandon  the  plaintiff.  It  is  claimed  that  this 
was  prejudicial  error.  This  class  of  evi- 
dence has  been  held  proper  and  competent 
as  showing  the  influences  producing  the  alien- 
ation and  the  loss  of  affection  complained  of 
and  the  cause  of  separation  and  the  destruc- 
tion of  the  marital  relation.  Hardwlck  v. 
Hardwlck,  130  Iowa,  230,  106  N.  W.  639; 
Williams  V.  Williams.  20  Colo.  51,  37  Pac. 
614;  Nevlns  v.  Nevlns,  68  Kan.  410,  75  Pac. 
492.  To  the  same  effect  is  the  case  of  Hor- 
ner V.  Yance,  93  Wis.  362,  67  N.  W.  720. 

It  is  contended  that  the  court  committed 
prejudicial  error  in  receiving  and  consider- 
ing the  testimony  of  plaintiff's  husband.  An 
examination  of  his  evidence  shows  that, 
though  it  was  erroneously  admitted,  it  could 
not  have  operated  to  the  defendants'  preju- 
dice, since  all  of  the  material  facts  to  which 
he  testified  supported  the  defendants'  claims 
in  the  case  and  Impeached  plaintUT's  case. 
Under  this  state  of  his  evidence  no  prejudi- 
cial error  resulted  from  its  admission. 

The  defendants  assert  that  the  evidence 
does  not  support  the  court's  finding  to  the 
effect  that  the  defendants  Frances  L.  White 
and  Mary  A.  Stewart  maliciously  confederat- 
ed together  to  Injure  the  plaintiff  through 
the  alienation  and  the  loss  of  affection  and 
the  society  of  her  husband,  and  that  their 
acts  and  conduct  caused  such  alienation  and 
loss  of  affection  and  society  as  resulted  in 
an  abandonment  and  separation  from  her. 
The  proof  relevant  and  material  to  these 
findings  of  the  court  embraces  nearly  all  of 
the  facts  and  circumstances  disclosed  by  the 
evidence.  The  evidence  is  in  positive  and  di- 
rect conflict  on  this  issue.  The  inferences 
from  the  evidence  depend,  however,  upon 
the  weight  and  the  credibility  of  the  differ- 
ent witnesses  testifying  in  the  case  consid- 
ered In  connection  with  the  positive  testi- 
mony contained  in  the  letters  and  other  evi- 
dence in  the  case.  In  determining  whether 
the  defendants  did  maliciously  conspire  to 
accomplish  the  alienation  of  the  husband 
and  the  loss  of  his  affection  and  society  by 
the  wife  the  evidence  should  be  considered 
in  view  of  the  rights  of  the  parents  and 
their  obligations  respecting  their  child's  wel- 
fare and  happiness.  As  stated  in  the  recent 
case  of  Jones  v.  Monson,  137  Wis.  op.  487, 
119  N.  W.  183:  "The  true  test  to  be  applied 
to  the  evidence  in  this  class  of  cases  Is: 
Were  the  defendants  in  what  they  did  ac- 
tuated with  reasonable  parental  regard  for 
their  child,  or  were  they  actuated  by  unrea- 
sonable ill  will  toward  the  husband  or  wife, 
as  the  case  may  be?"  Acts  done  by  a  stran- 
ger might  be  regarded  as  malicious,  while 
similar  acts  by  the  parents  would  not  give 
rise  to  a  well-grounded  suspicion  of  bod  in- 
tention." It  Is  strenuously  urged  that  the 
evidence  in  this  case  falls  to  show  that  the 
defendants  Frances  L.  White  and  Mary  ■A. 


Digitized  by 


Google 


1054 


122  NORTHWESTERN  REPORTER. 


(WI& 


Stewart  malicioosly  confederated  together 
for  the  anlawful  purpose  charged,  and  that 
there  is  nothing  to  show  that  they  attempted 
to  carry  out  such  purpose. 

As  stated,  the  Toluminoua  evidence  on  this 
issue  embraces  well  nigh  all  the  material 
facts  and  circumstances  in  the  case,  and  can- 
not profitably  be  restated  here.  The  rec- 
ord contains  positive  evidence  supporting  the 
claim  that  these  defendants  combined  and 
took  actual  steps  to  poison  the  mind  of  the 
plaintiff's  husband  against  her,  and  to  induce 
him  to  separate  from  her  as  his  wife.  The 
circumstances  of  their  conduct  in  the  matter 
are  cogent  in  support  of  this  daim.  True, 
much  of  the  direct  evidence  of  the  defend- 
ants is  a  denial  of  any  such  purpose  and  an 
endeavor  to  explain  the  circumstances  tend- 
ing to  stiow  guilt.  The  court's  conclusions, 
however,  are  clearly  supported  by  the  facts 
and  circumstances  shown,  if  the  witnesses 
testifying  thereto  are  worthy  of  credit  and 
belief.  The  condnslons  of  the  court  as  to 
the  facts  must  stand  unless  we  can  say  from 
the  record  before  us  that  the  evidence  of  the 
witnesses  in  support  thereof  is  incredible  or 
not  of  sufficient  weight  to  warrant  the  court 
in  finding  these  defendants  guUty  of  the 
wrong  alleged  against  them.  After  an  atten- 
tive reading  and  consideration  of  the  evi- 
dence, we  cannot  say  that  the  witnesses  tes- 
tifying in  support  of  the  cause  of  action 
were  not  entitled  to  credit,  and  that  sudb  evi- 
dence was  insufficient  in  weight  to  sustain 
the  findings.  Upon  the  record  it  must  be  held 
that  these  defendants  were  guilty  of  mali- 
ciously confederating  together  to  Injure  the 
plaintiff  by  effecting  the  alienation  and  the 
loss  of  affection  and  society  of  her  husband. 

It  is  asserted  that  the  award  of  punitory 
damages  Is  illegal  because  they  are  evident- 
ly allowed  and  fixed  at  the  sum  awarded  up- 
on the  evidence  of  the  wealth  of  the  defend- 
ant Frances  L.  Wliite.  There  is  nothing  in 
the  case  showing  that  the  trial  court  awarded 
the  punitory  damages  upon  this  ground.  The 
dalm  that  punitory  damages  are  not  proper 
in  view  of  the  fact  that  one  of  the  defend- 
ants is  without  property,  and  that  another 
defendant  is  possessed  of  considerable  means, 
,is  not  well  founded.  The  cause  of  action 
.arises  out  of  the  malicious  conduct  of  the 
parties,  and  the  wrongdoers  can  be  subject- 
ed to  punishment  by  the  award  of  punitory 
damages  therefor.  We  cannot  say  as  matter 
of  law  that  the  trial  court  allowed  an  ex- 
cessive amount  of  either  compensatory  or 
exemplary  damages  under  the  facts  and  cir- 
cumstances of  the  case.  The  record  presents 
no  grounds  for  disturbing  the  judgment. 

The  Judgment  is  reversed  as  to  the  defend- 
ant Frederick  H.  White,  Jr.,  and  the  cause 
remanded,  with  directions  to  dismiss  the  ac- 
tion as  to  him.  The  Judgment  Is  affirmed  in 
all  respects  as  to  the  other  defendants. 


FOSNES  V.   DUIiUTH   ST.   RT.   CO. 
(Supreme  Court  of  Wiaconshi.    Oct  26,  1909.) 

1.  EVIOENCI  (I  62*)— Pbbbuicftions— Mertal 
Capaciit. 

It  cannot  be  i>resumed  because  an  adult  was 
a  native  of  a  foreign  country,  who  had  recently 
come  to  this  country  and  conid  not  apeak  En- 
glish, that  he  does  not  possess  ordinary  intelli- 
gence. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent  Dig.  S  83 ;  Dec.  Dig.  |  62.«] 

2.  Cabbiibs  (j  333*)  —  Stbest  Railways  — 
AxioHTiNa   FBOM   Movino   Cab  —  Neou- 

GENCE. 

While  alighting  from  a  moving  street  car 
does  not,  in  all  cases,  constitute  negligence  as 
matter  of  law,  yet  an  adnlt  man  of  oidinary 
intelligence,  laboring  under  no  fright  or  excite- 
ment, and  confronted  with  no  exigency,  who 
alights  from  a  street  car,  which  to  his  knowl- 
edge is  moving  at  the  rate  of  six  miles  an  hour, 
is  negligent. 

[Ed.  Note.— For  other  cases,  see  Carriers, 
Cent  Dig.  §f  1385-1397;    Dec.  Dig.  |  333.»] 

Appeal  from  Superior  Court,  Douglas  Coun- 
ty;   Charles  Smith,  Judge. 

Action  by  Albert  Fosnes  against  the  Du- 
luth  Street  Railway  Company.  Judgment  of 
dismissal,  and  plaintiff  appeals.    Affirmed. 

Victor  LInley,  for  appellant  Frank  A. 
Ross,  for  respondent 

TIMLIN,  J.  In  this  case  an  objection  to 
the  reception  of  any  evidence  under  the  com- 
plaint was  sustained  upon  the  ground  that 
no  cause  of  action  was  stated  therein.  The 
plaintiff  did  not  ask  leave  to  amend,  and 
Judgment  was  granted  dismissing  the  com- 
plaint. No  error  Is  assigned  for  failure  to 
grant  leave  to  amend. 

It  appeared  by  the  complaint  that  the 
plaintiff,  a  passenger  upon  a  street  railway 
car,  requested  the  conductor  to  let  him  off  at 
a  designated  street,  and  the  conductor  knew 
the  wish  of  the  passenger  to  get  off  at  that 
street,  but  carelessly,  negligently,  and  wan- 
tonly failed  and  neglected  to  stop  the  car  at 
that  street  without  explanation  to  the  passen- 
ger, and  the  passenger  then  attempted  to  get 
off  the  car  at  this  street  while  the  car  was 
moving  at  the  rate  of  six  miles  an  hour,  and 
in  BO  doing  was  accidentally  thrown  to  the 
ground  and  injured.  This  presents  a  case  of 
negligence  on  the  part  of  the  defendant  and 
contributoiy  negligence  on  the  part  of  the 
plaintiff.  Six  miles  per  hour  must  be  con- 
sidered a  considerable  speed,  and,  indeed,  a 
high  rate  of  speed,  for  the  purpose  of  alight- 
ing from  a  moving  street  car.  The  ordinary 
inference  of  contributory  negligence  from 
such  attempt  recognized  in  Champane  v.  La 
Crosse  Street  Ry.  Co.,  121  Wis.  554,  99  N. 
W.  334,  and  Hardy  v.  Street  Railway  Co.,  89 
Wis.  183,  61  N.  W.  T71,  is  apparently  sought 
to  be  overcome  by  the  pleader  by  the  follow- 
ing additional  averments  in  the  complaint: 
The  passenger  recently  arrived  in  the  United 
States  from  Norway,  did  not  speak  the  Eng- 


•For  otber  cas«  lea  lame  topic  and  (•ctlon  NUMBER  In  Dec.  &  Am.  Dls>.  19C7  to  date,  4  Reporter  Index« 


Digitized  by 


Google 


wtaa 


SEERING  y.  BLACK. 


1055 


Hah  langnage,  was  Inexperienced  In  street 
railway  travel,  and  had  seen  other  pasaen- 
gers  at  other  previous  times  alight  from  the 
cars  of  the  defendant  while  such  cars  were 
In  motion  at  street  crossings — and  concluded 
that  be  was  required  to  get  off  the  car  while 
it  was  in  motion,  and  supposed  It  was  per^ 
fectly  safe  for  him  to  get  off  the  car,  although 
It  was  moving  at  the  rate  of  six  miles  an 
hour.  Assuming  In  support  of  the  complaint 
that  the  conductor  understood  the  language 
of  plaintur,  that  plaintiff  knew  he  was  ap- 
proaching lila  intended  place  of  alighting, 
that  this  was  a  proper  and  usual  place  at 
which  to  stop  the  car,  and  that  the  "other 
previous  times"  when  he  had  seen  passen- 
gers alighting  while  the  cars  were  In  motion 
were  sufficiently  recent  and  sufficiently  nu- 
merous to  Induce  him  to  believe  this  was  the 
American  way,  but  not  sufficiently  numerous 
to  remove  his  Inexperience  in  street  rail- 
way travel,  still  we  must  assume  that  there 
was  no  urgency  beyond  the  risk  of  his  being 
carried  a  square  or  thereabouts  past  his  des- 
tination. Notwithstanding  he  did  not  possess 
the  felicity  of  having  lived  long  in  this  coun- 
try, or  of  speaking  the  English  language,  he 
must  be  considered  a  man  of  ordinary  In- 
telligence. Rabies  v.  J.  T.  &  S.  Mfg.  Co.,  137 
Wis.  506,  118  N.  W.  350,  119  N.  W.  289;  Jo- 
hanson  v.  Webster  Mfg.  Co.  (Wis.)  120  N. 
W.  832.  While  it  cannot  be  said  as  matter 
of  law  that  In  all  cases  alighting  from  a 
moving  street  car  constitutes  contributory 
negligence,  yet  this  may  justly  be  said  In  a 
case  where  the  party  alighting  is  a  man  of 
full  age  and  ordinary  intelligence  laboring 
under  no  fright  or  excitement,  confronted 
with  no  exigency,  and  the  car  is  to  his  knowl- 
edge moving  at  the  rate  of  six  miles  an  hour. 
It  follows  that  the  Judgment  of  the  circuit 
court  should  be  affirmed. 

The  Judgment  of  the  circuit  court  Is  af- 
firmed. 


SBERINO  ▼.  BLACK  et  at. 
(Supreme  Court  of  Wisconsin.    Oct  26,  1909.) 

1.  CoBPORATioNS  (J  621*)— Dissolved  Cobpo- 

BATIONS  —  ObLIQATIONB  OP  OfFICEBS  —  AC- 
TIONS BT  Cbeditobs  and  Stockboldebs. 
Where  officers  of  a  disRolved  corporation 
continued  in  office  by  St.  1898,  f  1764,  to  wind 
up  the  business  and  distribute  the  assets  among 
the  Rteckbolden,  failed  to  perform  the  duties 
imposed,  and  thereby  deprived  a  creditor  and 
stockholder  of  his  share  of  the  assets,  and  cor- 
resirandingly  enriched  themselves,  equity  at  the 
suit  of  a  stockholder  will  entertain  a  winding 
np  suit  and  appoint  a  receiver. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent.  Dig.  I  2462 ;  Dec.  Dig.  S  621.»] 

2.  COBFOBATIONS   (i  621*)— DISSOLVED  COBPO- 

BATI0N8  —  Obligations  of  Officebb  — Ac- 
tions BT  Cbeditors  and  Stockholdebs. 
A  complaint  against  a  corporation  and  its 
officers,  which  allepies  the  dissolution  of  the  cor^ 
poration  by  operation  of  law  at  a  time  the  presi- 
dent and  secretary  and  treasurer  were  Its  prin- 


cipal debtors,  and  which  avexs  diat  such  officers 
control  the  board  of  directors,  and  refuse  to  take 
any  steps  to  collect  the  money  due,  or  to  liqui- 
date the  indebtedness  due  plaintiff,  and  that  due 
demand  has  l)een  made  on  the  officers  to  perform 
their  duties  as  such,  but  that  they  have  refused 
to  act,  intending  to  defraud  plaintiff  of  his  rights 
as  stockholder  and  creditor,  and  which  prays 
for  the  appointment  of  a  receiver,  etc.,  states 
a  cause  of  action. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent.  Dig.  {  2462;    Dec.  Dig.  S  621.*] 

8.  Cobpobationb  ({  616*)— Dissolved  Cobpo- 
bations  —  Obliqationb  of  Officers  —  Ac- 
tions BT  Cbeditobs  and  Stockholdebs. 
The  court  in  a  suit  to  wind  up  a  corpora- 
tion cannot  render  Jud^ent  for  plaintiff  as  a- 
creditor  of  the  corporation  and  a  like  judgment 
in  favor  of  the  corporation  against  its  officers 
on  an  ordinary  account  alleged  to  be  due  from 
them  to  it. 

[Ed,  Note. — For  other  cases,  see  Corporations, 
Cent  Dig.  {  2441;   Dec  Dig.  fi  616.*] 

4.   COBPOBATIONS   (|  616*)— DISSOLVED  COBPO- 

BATioNs— Actions  bt  Cbeditobs. 

Equity  will  entertain  a  suit  by  a  judjnnent 
creditor  to  wind  up  an  insolvent  corporation  or 
one  dissolved  by  operation  of  law. 

[Ed.  Note.— For  other  cases,  see  Corporations, 
Cent.  Dig.  %  2436;   Dec  Dig.  S  615.*] 

6.  Action  (I  38*)— Single  Cause  of  Action. 
A  complaint  against  a  corporation  and  its 
officers,  which  alleges  the  dissolution  of  the  cor- 
poration; that  the  president  and  secretary  and 
treasurer  were  its  principal  debtors ;  that  such 
officers  control  the  directors  and  retnae  to  take 
any  steps  to  collect  the  money  doe  the  corpora- 
tion, intending  to  defraud  plaintiff  of  his  nghts 
as  a  stockholder  and  creditor,  and  prays  for 
a  receiver  to  collect  the  debts  and  pay  the 
accounts ;  that  the  officers  be  compelled  to  pay 
to  the  corporation  the  amount  of  their  indebted- 
ness, and  that  plaintiff  have  judgment  direct- 
ing the  receiver  to  pay  over  to  him  the  amount 
found  to  be  due  from  the  corporation,  etc.,  may 
be  constmed  as  demanding  that  the  receiver  pay 

glaintiS  the  amount  found  to  be  due  after  he 
as  proved  his  claim  In  the  receivership  proceed- 
ings as  provided  by  law,  and  that  the  officers 
be  obliged  to  pay  to  the  receiver  the  amount 
found  to  bt  due  from  them  in  an  aj>propr!ate 
proceeding,  so  construed  states  bat  a  single  cause 
of  action ;  the  mere  fact  that  plaintiff  asks 
for  unnecessary  or  improper  relief  not  showing 
more  than  one  cause  of  action. 

[Ed.  Note.— For  other  cases,  see  Action,  Cent. 
Dig.  I  549;  Dec.  Dig.  S  38;*  Pleading,  Cent 
Dig.  H  134-187.] 

Appeal  from  Circuit  Court,  Shawano  Coun- 
ty ;    John  Goodland,  Judge. 

Action  by  Henry  Seering  against  John 
Black  and  othera  From  an  order  overrul- 
ing a  demurrer  to  the  complaint  interposed 
by  defendant  John  Black,  be  appeals.  Af- 
firmed. 

The  complaint  set  forth  that  Black  Bros. 
Company  was  a  domestic  corporation  or- 
ganized In  Jnne,  1906,  with  an  authorized 
capital  of  $30,000,  for  the  purpose  of  con- 
ducting a  mclrcantile  business,  and  that 
$21,000  in  capital  stock  was  issued,  of  which 
the  plaintiff  held  $7,000,  John  Black  $6,900, 
Mary  Black,  his  wife,  $100,  Joseph  Black 
$8,900,  and  Nellie  Black,  his  danehter.  $10«: 


•Far  ofber  caws  sm  sun*  toplo  and  ncUon  NUMBSH  in  Dec.  *  Am.  Digs.  1907  to  date,  *  Reporter  Indexes 


Digitized  by 


Google 


1056 


122  NORTHWESTERN  REPORTER. 


(Wis. 


that  each  of  the  stockholders  was  a  director 
In  the  corporation;  that  John  Black  was 
president  and  Joseph  Black  was  secretary 
and  treasurer,  and  that  plaintiff  was  vice 
president  thereof;  that  on  October  22,  1906, 
said  corporation  sold  all  of  its  property  ex- 
cept book  accounts  owing  to  It,  and  has 
transacted  no  business  since  said  date ;  that 
said  corporation  failed  to  make  the  report 
required  by  section  1774a,  Sanborn's  St.  Supp. 
lOOG,  showing  the  condition  of  Its  business  on 
January  1,  1907,  and  that,  by  appropriate 
proceedings  had  in  pursuance  of  such  statute, 
•Its  franchise  was  forfeited  on  January  2, 
1908,  at  which  time  It  was  dissolved  by  op- 
eration of  law ;  that  at  the  time  of  such  dis- 
solution there  was  due  and  owing  to  such 
corporation  on  account  from  the  defendant 
Joseph  Black  the  sum  of  $2,583.83,  and  from 
John  Black  the  sum  of  $2,059.04,  and  in  oth- 
er accoxmts  about  $1,500,  and  that  there  was 
due  and  owing  to  plaintiff  from  said  corpo- 
ration the  sum  of  $2,840  on  an  Indebtedness 
duly  assumed  by  the  corporation;  that  the 
defendants  Black  had  control  of  the  board 
of  directors  of  said  corporation;  that  they 
are  the  principal  debtors  of  said  corporation, 
and  refuse  to  take  any  steps  to  collect  the 
moneys  due  the  same  or  to  liquidate  the  In- 
debtedness due  plaintiff,  and  that  due  de- 
mand has  been  made  upon  them  to  perform 
their  duties  as  officers  and  trustees  of  said 
corporation,  but  they  have  failed  and  refused 
to  act.  Intending  thereby  to  defraud  the  plain- 
tiff of  his  rights  as  a  stockholder  and  credit- 
or of  the  corporation,  and  that  It  is  necessary 
to  appoint  a  receiver  to  marshal  the  assets 
of  said  corporation  and  wind  up  Its  affairs. 
As  relief  the  plaintiff  asks  (1)  that  a  receiv- 
er be  appointed  to  collect  the  outstanding 
debts  and  pay  the  accounts ;  (2)  that  the  de- 
fendants, John  and  Joseph  Black,  be  com- 
pelled to  pay  to  the  corporation  the  amount 
of  their  Indebtedness  thereto;  (3)  that  the 
plaintiff  have  Judgment  directing  the  receiver 
to  pay  over  to  him  the  amount  found  to  be 
due  from  the  corporation;  (4)  that  plaintiff 
be  paid  the  amount  found  due  him  on  an  ac- 
counting after  the  affairs  of  the  corporation 
arc  wound  up;  (5)  that  the  corporation  be 
dissolved,  and  its  affairs  settled  up  and  that 
Its  assets  be  distributed;  (6)  that  plaintiff 
have  such  other  relief  as  may  be  equitable. 

The  defendant  John  Black  demurred  to 
this  complaint  on  various  grounds,  but  two 
of  which  are  relied  on:  (1)  That  the  com- 
plaint does  not  state  a  cause  of  action ;  and 
(2)  that  several  causes  of  action  have  been 
improperly  united.  From  an  order  overrul- 
ing this  demurrer,  said  defendant  appeals. 

Kberlein  &  Eberlein,  for  appellant  P.  J. 
Winter  (Greene,  Falrchild,  North  &  Parker, 
of  counsel),  for  respondent 

BARNES,  J.  (after  stating  the  facts  as 
above).  By  section  1764,  St.  1808,  the  di- 
rectors of  the  dissolved    corporation    were 


continued  in  office  for  the  purpose  of  Baling 
and  disposing  of  its  property,  collecting  Its 
debts,  paying  its  obligations,  and  distributing  ' 
its  assets  among  its  stockholders.  lilndemann 
v.  Rusk,  125  Wis.  210,  104  N.  W.  119.  Tak- 
ing as  a  verity  the  averments  of  the  com- 
plaint, the  defendants  have  wholly  failed  to 
perform  the  duties  imiMsed  on  them  by  law. 
By  such  conduct  they  are  depriving  the  plain- 
tiff of  his  share  of  the  corporate  assets,  and 
correspondingly  enriching  themselves.  That  a 
court  of  equi^  has  power  under  such  cir- 
cumstances at  the  suit  of  a  stockholder  to  en- 
tertain a  winding  up  suit  and  to  appoint  a  re- 
ceiver to  perform  the  functions  which  the  de- 
fendants have  wrongfully  and  fraudulently 
refused  to  perform  does  not  admit  of  doubt 
Cook  on  Corporations,  {  844;  Llndemann  t. 
Rusk,  supra;  Elmergreen  v.  Welmer  (Wis.) 
119  N.  W.  830.  The  complaint  states  sufficient 
facts  to  constitute  a  cause  of  action. 

That  the  complaint  does  not  Improperly 
unite  several  causes  of  action  Is  not  so  clear. 
An  inference  might  well  be  drawn  that  a 
money  judgment  in  favor  of  plaintiff  as  a 
creditor  was  sought  In  this  action,  and  also 
that  a  like  Judgment  in  favor  of  the  corpora- 
tion was  sought  against  John  and  Joseph 
Black  on  an  ordinary  account  alleged  to  be 
due  from  them  to  it  Such  relief  cannot  Im 
granted  in  a  winding  up  suit  Harrlgan  v. 
Gilchrist,  121  Wis.  127,  240,  99  N.  W.  909. 
Equity  will  entertain  a  suit  by  a  creditor  to 
wind  up  the  affairs  of  an  Insolvent  or  of  a 
dissolved  corporation.  Klllen  v.  Barnes,  106 
Wis.  646,  82  N.  W.  636,  659;  Gores  v.  Day, 
99  Wis.  276,  74  N.  W.  787.  But  we  are  not 
prepared  to  say  that  the  general  rule  that 
only  a  judgment  creditor  may  maintain  such 
a  suit  is  not  applicable  to  a  corporation  dis- 
solved by  operation  of  law.  The  allegation 
in  the  complaint  to  the  effect  that  plaintiff  Is 
a  creditor  Is  proper  enough,  even  though  he 
is  not  presently  entitled  to  maintain  the  ac- 
tion as  such.  We  see  no  Impropriety  In  pla- 
cing a  fairly  complete  history  of  the  condition 
and  affairs  of  the  corporation  before  the  court 
In  the  suit  of  plaintiff  as  a  stockholder.  The 
ambiguity  arises  out  of  the  demand  for  Judg- 
ment If  the  pleader  Intended  to  set  out  more 
than  one  cause  of  action,  he  did  not  follow 
section  2647,  St  1898,  which  requires  that 
different  causes  of  action  be  stated  separate- 
ly. We  think  the  prayer  for  relief  may  be 
construed  as  a  demand  by  the  plaintiff  that 
the  receiver  pay  him  the  amount  found  to  be 
his  due,  after  he  has  filed  his  claim  and  prov- 
ed it  in  the  receivership  proceedings  in  the 
manner  provided  by  law,  and  that  the  de- 
fendants John  and  Joseph  Black  be  obliged 
to  pay  to  the  receiver  as  the  representative 
of  the  corporation  the  amount  found  to  be  due 
from  them  In  an  appropriate  proceeding 
brought  for  the  purpose  of  compelling  such 
payment  So  construed,  the  complaint  states 
but  a  single  cause  of  action.  The  mere  fact 
that  the  plaintiff  is  asking  for  unnecessary  or 


Digitized  by  VjOOQ  l€ 


WlsJ 


HALUEO  T.  HATTEN  LUMBER  CX>. 


1057 


even  Improper  relief  does  not  In  Itself  show 
that  more  than  one  cause  of  action  Is  stated. 
Order  affirmed. 

TIMLIN,  J.  I  concur  IQ  the  •pinion  writ- 
ten by  Justice  BARNCS,  but  I  do  not  think 
It  Is  an  open  question  in  this  state  whether  a 
creditor  who  has  not  recovered  a  judgment 
can  maintain  such  an  action  as  this  against 
such  a  corporation.  I  do  not  think  any 
doubts  on  this  barren,  outworn,  and  quite 
useless  technicality  of  practice  should  be  re- 
vived, especially  when  the  action  is  to  enforce 
a  trust  or  fiduciary  duty.  The  statute  is  sec- 
tion 3223,  St  1898.  The  cases  are  Sleeper  v. 
Goodwin,  67  Wis.  677,  81  N.  W.  338 ;  Mlchrf- 
Bon  V.  Pierce,  107  Wis.  85,  82  N.  W.  707; 
Booth  V.  Dear,  96  Wis.  516,  71  N.  W.  816,  and 
other  cases.  "Liability  created  by  law." 
Hurlbut  V.  Marshall,  62  Wis.  594,  595,  op.  22 
N.  W.  852.  This  also  has  been  since  followed; 
all  6f  which  may  be  found  by  any  one  having 
the  time  and  industry  so  to  do. 


MALUEG  et  al.  v.  HATTEN  LUMBER  CO. 
(Supreme  Court  of  Wisconsin.    Oct  26,  1909.) 

1.  CONTBACTB  (I  321*)— BREACH. 

A  person  may,  at  law,  breach  his  contract 
with  another  and  be  liable  only  to  respond  to 
that  other  for  such  legal  damages  as  will  rem- 
edy the  loss  to  him. 

(Ed.   Note.— For  other  cases,  see   Contracts, 
Cent  Dig.  t  1511% ;   Dec.  Dig.  {  321.»] 

2.  Dakaoes  (J  23*)— Breach  of  Contract— 
Measure  or  Damages. 

The  legal  damages  for  breach  of  contract 
are  such  as  may  fairly  and  reasonably  be  consid- 
ered to  be  the  natural  and  proximate  result  of 
the  breach  and,  in  the  light  of  the  circumstances 
known,  actually  or  constructively,  to  both  par- 
ties at  the  time  of  such  making,  and  as  having 
been  then  in  their  mutual  contemplation  as  the 
probable  result  of  such  breach. 

(Ed.    Note. — For   other   cases,   see   Damages, 
Cent  Dig.  SS  58,  62;   Dec  Dig.  I  23.*] 

8.  Cortractb  (i  821*)  —  Bbkace  —  Rights  or 

Partibs. 

The  rights  of  parties  as  regards  a  breach 
of  contract  oecome  fixed  at  the  time  the  breach 
occurs. 

[Ed.   Note.— For  other  cases,  see  Contracts, 
Dec  Dig.  S  321.*] 

4.  Sauis  (i  418*)— Brxaos  bt  Skixkr— Mxab- 
xjm  OF  Damages. 

If  a  breach  of  contract  consists  of  failure 
to  deliver  upon  a  sale  agreement  personal  prop- 
erty at  a  specified  time,  there  being  no  special 
circumstances,  known  to  both  parties  at  the 
time  of  making  the  agreement  varying  the  gen- 
eral rule,  the  damage  recoverable  is  the  differ- 
ernce,  at  the  time  of  the  breach  and  at  the 
agreed  place  of  delivery,  between  the  market 
value  Of  the  property  and  the  contract  price, 
with  legal  interest  from  the  time  of  the  breach. 

{Ed.  Note.— For  other  cases,  see  Sales,  Cent 
g.  a  1174-1201 ;   Dec  IMg.  {  4ia*] 

6.  Sales  (|  418*)— Breach  bt  Selxer- Nom- 
inal Damages. 

In  case  of  an  action  for  damages  for  breach 
of  contract  in  the  circumstances  mentioned  in 
No.  4,  in  the  absence  of  evidence  that  the  mar- 
ket value  of  the  property  at  the  time  and  place 


of  delivery  agreed  upon,  exceeded  the  oontract- 
price,  no  more  than  nominal  damages  are  recov- 
erable. 

[Ed.  Note.— For  other  cases,  see  Sales,  Geat 
Dig.  if  1174r-1201 ;   Dec  Dig.  f  418.*] 

6.  Sales  (|   180*)— Sale  of   Logs— FAiLtrBB 
TO  FuLLT  Pkbfobm— Waives. 

In  case  of  partial  delivery  of  property,  in 
the  circumstances  mentioned  In  No.  4,  and  pay- 
ment therefor  after  the  breach  without  objec- 
tion and  with  knowledge  of  the  facts,  the  agree- 
ment providing  for  payment  as  fast  as  ^liv- 
eries are  made,  such  circumstances  do  not,  of 
themselves,  waive  any  claim  for  damages  for 
snch  breach. 

[Ed.  Note.— For  other  cases,  see  Sales,  Cent 
Dig.  §8  469-172;    Dec  Dig.  t  180.*] 

7.  Sales  (§  360*)— Sale  or  Loaa— Contract 
—Termination. 

In  case  of  the  breach  of  contract  in  the 
circumstances  stated  ia  the  foregoing,  and  a 
claim  thereafter  upon  the  side  of  the  executory 
vendee  that  he  is  legally  entitled  upon  the  con- 
tract to  the  balance  of  ttie  property,  and  insist- 
ence upon  the  other  that  be  is  under  no  such 
obligation,  and  delivery  of  the  balance  of  the 
property  pursuant  to  a  mutual  understanding 
for  payment  therefor  at  the  market  price  at 
the  time  of  delivery,  in  case  of  the  vendee  not 
being  entitled  as  he  claims,  the  vendor  should 
be  paid  such  market  price. 

[£!d.  Note.— For  other  cases,  see  Sales,  Cent 
Dig.  H  1060-1062 ;   Dec.  Dig.  i  300.*] 

(Syllabus  by  the  Judge.) 

Appeal  from  Circuit  Court,  Shawano  Coun- 
ty;  John  Goodland,  Judge. 

Action  by  August  F.  Malueg  and  others 
against  the  Hatten  Lumber  Company.  Judg- 
ment for  plaintiffs,  and  defendant  appeals. 
Affirmed. 

Action  to  recover  on  a  contract  for  a  claim- 
ed balance  for  sawlogs  sold  defendant  by 
plaintiflTs  at  a  stipulated  price. 

Defendant  answered  putting  in  issue  plain- 
tiffs' claim  as  to  the  agreed  price  for  the 
logs  and  as  to  there  being  a  balance  due.  It 
pleaded  as  a  defense  that,  for  the  purpose 
of  supplying  its  mill  with  a  sto<^  of  saw- 
logs  for  the  manufacturing  season  of  1906,  It 
contracted  In  writing  with  plaintiffs  to  cut 
Into  sawlogs  and  deliver  to  It  at  a  specified 
place,  during  the  winter  of  1905  and  1906, 
all  liie  sawlog  timber  on  Certain  specified 
land  at  a  price  per  tliousand  feet  named,  final 
payment  therefor  to  be  made  upon  all  the 
logs  being  scaled  and  full  performance  by 
plaintiffs;  that  in  partial  performance  276,- 
230  feet  of  logs  were  duly  delivered,  scaled 
and  paid  for  during  the  winter  of  1906 ;  that 
notwithstanding  defendant  was  ready  and 
willing  to^ccept  and  pay  for  the  balance  of 
the  sawlogs  agreed  to  be  delivered,  plaintiffs 
neglected  to  make  delivery  thereof  during  tha 
time  limited  in  the  contract ;  that  thereupon 
such  time  was  extended  to  Include  the  next 
logging  season;  and  that  plaintiffs  have  re- 
ceived full  payment  for  all  logs  delivered. 

Defendant  for  a  counterclaim  pleaded,  the 
aforesaid  facts  and  that  the  amount  of  tim- 


•jror  other  ca«w  ■••  same  tople  and  section  NUMBER  in  Dw.  *  Am.  Diss.  U07  to  data,  *  Raportsr  IndezM 
122  N.W.-67 


Digitized  by 


Google 


1058 


122  NORTHWESTERN  REPORTER. 


(Wta. 


ber  which  plaintiffs  failed  to  deliver  during 
the  logging  season  of  1006  and  1907,  wag  181,- 
880  feet  of  short  and  11,310  feet  of  long  hem- 
lock logs,  to  Its  damage  In  the  earn  of  ^406.88. 
The  coonterclalm  was  duly  rolled  to.  Up- 
on the  trial  plaintiffs  claimed  that  the  written 
contract  did  not  cover  the  operations  of  the 
season  of  1906  and  1907;  that  during  the 
season  they  delivered  to  defendant  the  saw- 
logs  It  claimed  should  have  been  delivered 
during  the  previous  season,  but  made  such 
delivery  under  an  oral  agreement  Increasing 
the  price  for  the  logs  $2  per  1000  feet  Such 
increase  coincided  with  the  amount  claimed 
in  the  complaint 

There  was  proof  that,  at  the  dose  of  the 
first  logging  season,  defendant  settled  with 
plaintiffs  for  all  logs  delivered  during  such 
season,  without  objection  because  of  the  con- 
tract not  having  been  fully  performed,  and 
that  the  price  claimed  by  plaintiffs  for  logs 
delivered  the  second  season  was  the  going 
price  thereof  and  the  amount  defendant  ver- 
bally agreed  to  pay  therefor. 

There  was  evidence  on  the  part  of  de- 
fendant that,  before  the  logging  operations 
commenced  the  second  season,  it  gave  plain- 
tiffs written  notice  that  it  claimed  the  con- 
tract covered  the  balance  of  the  timber,  but 
later  promised  that  If  it  should  tarn  out 
otherwise.  It  would  pay  the  going  price. 

At  the  close  of  the  evidence  the  court,  on 
motion,  directed  a  verdict  for  plaintiffs  upon 
their  theory  of  the  case;  holding  that  by 
paying  in  full  at  the  dose  of  the  first  een' 
son  without  objection,  notwithstanding  the 
'  contract  had  been  breached  as  claimed  in  the 
answer,  such  breach  was  waived  and  the  con* 
tract  extinguished,  and  that  the  agreement 
to  pay  the  price  for  the  logs  delivered  the 
second  season,  in  case  the  contract  as  to 
such  season  was  of  no  effect  entitled  plain- 
tiffs to  recover.  Judgment  was  entered  ac- 
cordingly. 

R.  N.  Van  Doren,  for  appellant  P.  J. 
Winter,  for  respondents. 

MARSHAIiL,  J.  (after  stating  the  facts  as 
above).  This  case  is  ruled  by  a  few  familiar 
legal  principles. 

Keeping  in  mind  the  conceded  fact  that 
respondents  breached  the  contract  in  ques- 
tion by  neglecting  to  deliver  to  appellant  all 
the  saw  timber  standing  upon  the  land  manu- 
factured into  sawlogs,  properly  scaled,  by 
the  close  of  the  logging  season  o%1906,  the 
first  prindple  to  be  mentioned  is  that  a  per- 
son, at  law,  may  of  right  breach  his  contract 
with  another  and  subject  himself  to  the  bur- 
den of  such  damages  for  the  benefit  of  such 
other  as  may  be  necessary  to  remedy  the 
breach.  Ward  v.  American  Health  Food 
Co.,  119  Wis.  12,  96  N.  W.  388. 

It  follows  that  since  after  the  breach  In 
question.  If  respondents  saw  fit  as  it  seems 
they  did,  to  stand  upon  their  legal  rights 
and  not  recognize  the  contract  as  binding 
them  to  deliver  the  balance  of  the  timber 


left  at  the  dose  of  the  winter  of  1900,  It  was 
competent  for  them  to  do  so,  leaving  appel- 
lant, as  its  only  recourse  to  remedy  the  mat- 
ter, enforcement  of  a  cause  of  action  for  dam- 
ages, if  any  there  were. 

The  next  legal  principle  applicable  to  the 
case,  in  the  logical  order  of  things,  is  this 
very  famUlar  one:  The  damages  recoverable 
for  breach  of  contract  are  such  as  may  fair- 
ly and  reasonably  be  considered  to  be  the 
natural  and  proximate  result  thereof  and 
which  In  the  light  of  drcumstances,  known, 
actually  or  constructively,  to  both  parties  at 
the  time  of  making  the  contract  may  rea- 
sonably be  supposed  to  have  been  in  their 
mutual  contemplation  as  the  probable  result 
of  euch  breadi.  Hadley  v.  Baxendale,  9 
Exch.  341;  Ouetzkow  Bros.  Co.  v.  A.  H.  An- 
drews &  Co.,  92  Wis.  214,  66  N.  W.  119,  52 
li.  R.  A.  209,  53  Am.  St  Rep.  909;  Gross  v. 
Heckert  120  Wis.  314-321,  97  N.  W.  952;  Aja- 
derson  v.  Savoy,  137  Wis.  44-48,  118  N. 
W.  217, 

In  connection  with  the  last  foregoing  rule 
is  the  one  that  in  case  of  a  breach  of  con- 
tract the  rights  of  the  parties  are  regarded 
as  fixed  at  the  time  thereof,  so.  If  such  breach 
consists  in  failure  to  deliver  upon  a  sale  con- 
tract personal  property  to  he  paid  for  after 
delivery,  there  being,  as  in  this  case,  no  apo- 
dal circumstances  rendering  more  than  ordi- 
nary damages  as  probably  within  the  contem- 
plation of  the  parties  at  the  time  of  making 
the  contract  as  likely  to  occur  from  such  fail- 
ure, the  limit  of  legal  damages  is  the  dif- 
ference at  the  time  of  the  breach,  t>etween 
the  market  value  of  the  property  at  the  time 
and  place  of  delivery  and  the  price  the  ex- 
ecutory purchaser  agreed  to  pay  thertfor 
with  legal  Interest  from  the  date  of  the 
breach.  Richardson  v.  Chynoweth,  26  Wis. 
656;  Hill  V.  Ghlpman,  69  Wis.  211,  18  N.  W. 
160;  Muenchow  v.  Roberts.  77  Wis.  520-B22, 
46  N.  W.  802;  Kelley,  Mans  &  Co.  y.  La 
Crosse  Carriage  Co.,  120  Wis.  84,  97  N.  W. 
674,  102  Am.  St  Rep.  971;  Anderson  v. 
Savoy,  187  Wis.  44-48, 118  N.  W.  217. 

So  if  appellant  suffered  any  recoverable 
loss  by  failure  to  deliver  the  timber  as  agreed, 
upon,  it  consists  of  the  difference  between 
what  the  market  value  of  the  undelivered 
timber  manufactured  into  sawlogs  was  at 
the  time  when  and  place  where  the  same 
should  have  been  delivered  and  the  contract 
price  thereof.  What  such  logs  were  worth 
In  the  market  the  succeeding  winter,  is  entire- 
ly immaterial  on  this  branch  of  the  case. 

In  the  light  of  the  foregoing,  since,  as  the 
fact  is,  there  was  no  proof  offered  or  receiv- 
ed tending  to  show  that  the  market  value  of 
such  logs  as  respondent  agreed  to  deliver  at 
the  time  for  the  delivery,  exceeded  the  con- 
tract price,  there  was  an  entire  failure  of 
proof  to  maintain  api>ellant's  counterdalm. 
So  respondents  were  entitled  to  recover,  as 
they  did,  the  undisputed  market  value  of  the 
logs  delivered  In  tiie  winter  of  1906  and  1907. 
Breach  of  contract  without  any  legal  dam- 


Digitized  by  LjOOQ  l€ 


Wlaa 


LBHMAN  ▼.  CHICAGO,  ST.  P.,  M.  &  O.  RY.  00. 


1059 


ages  obTlously  gives  no  right  of  recovery. 
Main  ▼.  Procknow,  181  Wis.  279,  Ul  N.  W. 
608. 

It  is  claimed  on  the  part  of  respondents 
that  making  final  payment  for  all  logs  de- 
livered, after  the  time  fixed  in  the  writing 
for  performance,  without  making  any  ob- 
jection because  of  the  breach,  notwithstand- 
ing it  bad  full  knowledge  of  the  facts,  con- 
stituted a  waiver  of  any  further  rights  under 
the  contract  either  for  the  balance  of  the 
logs  or  damages.  There  having  been  no  pre- 
tense at  the  time  payment  was  made  that 
the  contract  had  been  fully  performed,  the 
mere  payment  for  the  logs  d^ivered,  keep- 
ing silent  as  to  any  further  claim  under  the 
contract,  did  not  of  itself  waive  anything. 
The  transaction  was  strictly  according  to 
the  terms  of  the  writing.  It  contemplated 
payment  for  logs  from  time  to  time  as  they 
were  deliveired  and  scaled.  One  may  always 
accept  and  pay  at  the  contract  rate  for  par- 
tial performance,  as  in  this  case,  without 
waiving,  by  such  circumstance  alone,  his 
right  to  redress  for  failure  of  full  perform- 
ance. Charley  v.  PotthofT,  118  Wis.  258,  95 
N.  W.  124.  Such  a  case  must  not  be  con- 
fused with  those  where  articles  are  deliver- 
ed in  performance  of  an  executory  contract 
of  sale  as  and  for  the  amount  and  kind 
agreed  upon  and  are  received  and  retained 
with  knowledge,  or  reasonable  means  of 
knowledge,  that  they  do  not  fully  answer 
the  calls  of  the  agreement,  and  without  noti- 
fying the  vendor  within  a  reasonable  time 
that  the  articles  are  not  accepted  as  full  per- 
formance. 

Notwithstanding  the  contract  was  not  ter- 
minated by  payment  for  the  logs  delivered 
under  the  circumstances  stated.  It  does  not 
follow  that  appellant  had  any  further  rights 
under  it  It  had  no  right  to  damages  for 
the  breach  unless  It  suCFered  damages  and 
none  were  established;  as  appellant  evident- 
ly appreciated  and  conceded  at  the  close  of 
the  trial.  It  had  no  legal  right  to  further  de- 
liveries of  logs  after  the  close  of  the  winter 
of  1906.  The  evidence  Is  substantially  all 
one  way,  as  the  trial  court  held,  that  the  mar- 
ket value  of  the  logs  delivered  the  second 
season  was  as  claimed  by  respondents  and 
that  If  they  were  entitled  to  recover  on  that 
basis  the  amount  due  them  was  as  found  in 
the  directed  verdict.  The  evidence  is  all  one 
way,  that  respondents  refused  to  recognize 
the  contract,  which,  by  its  terms,  terminated 
at  the  close  of  the  winter  of  1906,  as  binding 
them  to  let  appellant  have  the  logs  delivered 
the  second  season.  The  latter  conceded  upon 
the  trial  that  it  promised  to  pay  the  former 
the  market  price  for  logs  the  second  season 
if  the  contract  did  not  entitle  It  to  them  at 
the  price  named  therein.  The  controversy  be- 
tween the  parties  at  the  commencement  and 
during  the  early  part  of  the  second  season, 
as  the  evidence  conclusively  shows  and  the 


court  found,  was  not  over  the  market  price 
or  the  amount  respondents  abould  have  for 
the  logs  in  the  absence  of  any  writing  govern- 
ing the  matter,  but  over  whether  respond- 
ents were  bound  to  deliver  the  logs  under 
the  writing  of  1906. 

So  the  case  really  turns,  as  the  trial  court 
found,  on  whether  the  writing  was  effective 
as  to  the  second  season  notwithstanding  the 
breach  aforesaid  ai^d  respondents'  Insistence 
thereon.  On  that  question  the  decision  of 
the  trial  court  was  right  though  the  grounds 
stated  therefor  are  not  altogether  approved. 
Further  performance  of  the  contract  on  re- 
spondents' part  was  not  waived  by  appellant 
by  the  occurrences  in  the  spring  of  1907  be- 
fore mentioned.  It  terminated  by  Its  own 
limitations,  subject  to  appellant's  right  to 
damages.  If  any  were  suCTered,  because  of 
there  being  but  partial  performance  and  sub- 
sequent to  mutual  recognition,  in  case  of 
there  being  such,  of  its  further  efficacy. 
Therefore  the  Judgment  must  be  affirmed. 

So  ordered. 

WINSLOW,  a  J.,  took  no  part 


LEHMAN  V.   CHICAGO.   ST.  P.,   M.   &  O. 
'  RY.  CO. 

(Supreme  Oonrt  of  Wisconsin.     Oct  26,  1909.) 

1.  Mastkb  and  Sebvaitt  (i  124*)— Injuries 
TO  Servant  — Ddty  to  Inbpbot  Tools  — 
"Snipi,E  Tool,." 

An  implement  having  a  wooden  handle 
about  three  feet  long,  inserted  in  an  iron  cross- 
head,  having  a  hammer  face  on  one  and  and  a 
pick  point  on  the  other  end,  is  a  "simple  tool," 
which  the  master  need  not  Inspect 

[BM.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  (  235;   Dec  Dig.  i  v:    •] 

2.  NeOUOKNCS  (I   136*)— OONTRIBHTOBY  NBO- 

uoENCB— Question  fob  Jubt. 

The  qnestion  of  the  contributorr  negligence 
of  one  injured  by  the  negligence  of  another  is 
usually  a  question  for  the  jury. 

[Ed.  Note. — For  other  cases,  see  Negligence, 
Cent.  Dig.  H  833-346;   Dec  Dig.  {  136.*] 

3.  Master  and  Servant  (S  289*)— GoNTBiBtr- 
TORY  Negligence— Duty  or  Servant  to 
Inspect  Tools— Question  Foa  Juby— "In- 
spection." 

Whether  one  seizing  a  pick,  a  hammer,  or 
an  ax,  and  striking  a  blow  with  it  without  even 
glancing  at  the  condition  of  the  implement,  is  in 
the  exercise  of  ordinaiy  care,  is  a  question  of 
fact  for  the  jniy ;  the  rule  that  the  servant  is 
not  bound  to  inspect  machinery  and  appliances 
furnished  by  the  master,  but  may  rel^  upon  the 
master  to  furnish  safe  tools  and  appliances,  not 
applying,  the  word  "inspection"  meaning  a  some- 
miat  careful  or  critical  examination. 

[£id.  Note. — For  other  cases,  see  Master  and 
Servant  Cent  Dig.  {{  1106-1109;  Dec  Dig. 
I  289.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  4,  pp.  3656-365&] 

4.  Master  and  Servant  ({  235*)— Oontbibo- 
TORY  Negligence— What  Constitutes. 

Although  a  servant  may  rely  upon  the  mas- 
ter discharging  his  duty  to  furnish  safe  tools 
and  appliances,  and  need  not  inspect  them  be- 
fore using,  yet,  if  ordinarily  prudent  and  care- 


•For  other  csaes  le*  urn*  topic  and  ■ecUon  NUMBER  In  Dec.  A  Am.  Digs.  1907  to  date,  A  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


loeo 


122  NOBTHWESTBBN  REPORTER. 


(WIfc 


ful  persons  elanoe  at  an  implement  with  wliicli 
they  strike  before  atriking  a  blow,  a  failure  to 
do  80  where  such  failure  contributes  to  the  in- 
jury is  contributory  negligence, 

(Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  IS  710-714;    Dec  Dig.  { 

5.  Neoligenob  (S  82*)— CJontbibdtobt  Neo- 

UOENCB— PrOXIVATE    CaUSE— KNOWLEDGE. 

Under  the  rules  that  oontribntoty  negli- 
gence must  proximately  have  contributed  to 
produce  the  injury,  and  that  no  act  or  omission 
IS  the  proximate  cause  un4es8  the  person  guilty 
ought  In  the  exercise  of  ordinary  diligence  to 
have  anticipated  tiiat  an  injury  might  result, 
knowledge  which  may  be  acquired  by  ordinary 
care  is  knowledge  i>ossessed. 

[Eld.  Note. — For  other  cases,  see  Negligence, 
Cent  Dig.  |i  11^114;    Dec  Dig.  {  82.*] 
<l  Mabteb  awd   Servant  (S  247»)— Injubies 

TO   SeBVANT— GONTBIBUTOBY  NEGUGBNCE  OF 

Sbbvant. 

Where  a  servant  reached  for  a  tool  to  its 
accustomed  place,  grasped  it,  and  struck  a  blow 
with  it  without  looking  to  see  if  it  was  in  a  safe 
condition,  and  was  injured  by  reason  of  a  de- 
fect in  the  tool,  it  was  not  necessary  to  his 
contributory  injury  that  he  should  have  antici- 
pated the  precise  injury  which  occurred ;  it  being 
sufficient  If  the  act  was  careless,  and  likely  to 
result  in  some  injury. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Dec  Dig.  S  247.*] 

7.  Appbai.  and  Bbbob  (t  831*)  —  Pbescvp- 
TiONS  —  Spbciai.  Verdict  —  Findinob  by 
<3ouBr. 

Under  Laws  1907,  p.  571,  c.  846,  i  2858m, 
providing  that  whenever  any  special  verdict  is 
submitted,  and  there  is  omitted  therefrom  some 
controverted  matter  of  fact  not  brought  to  the 
attention  of  the  trial  court,  but  essential  to  sus- 
tain the  judgment,  such  matter  of  fact  will  be 
deemed  determined  by  the  court,  in  conformity 
with  its  judgment,  and  the  neglect  or  omission 
(.0  request  a  finding  on  such  matter  shall  be 
deemed  a  waiver  of  jury  trial  pro  tanto,  and  a 
consent  that  such  omitted  fact  be  determined  by 
the  court  where  a  verdict  did  not  expressly  find 
that  defendant  knew  or  oiight  to  have  known  of 
the  defective  condition  of  a  tool,  or  any  other 
fact  or  circumstance  tending  to  show  negligence 
of  the  defendant  except  that  the  tool  at  the  time 
of  an  accident  was  in  a  defective  condition,  and 
that  the  defective  condition  of  the  tool  was  the 
proximate  cause  of  plaintiffs  injury,  the  court 
below  having  rendered  judgment  for  defendant, 
it  must  be  considered  that  the  court  determined 
upon  the  evidence  that  the  defendant  was  not 
negligent. 

[£<d.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {  3704;   Dec.  Dig.  {  831.*] 

8.  Master  and  Sebvant  (|  296*)— Injubt  to 
Servant— Obdinart  Case— Instbuctions. 

In  a  servant's  action  for  personal  injuries, 
an  instruction  that  if  the  jury  should  find  that 
the  plaintiff  by  the  exercise  of  ordinary  care 
"could"  have  examined  a  tool,  and  observed  its 
defective  condition  before  Using  it,  he  was  guilty 
of  contributory  negligence,  was  not  erroneous  in 
not  using  the  words  "ought  to,"  instead  of 
"could." 

[Ed.  Note. — ^For  other  cases,  see  Master  and 
Servant  Cent  Dig.  {  1187 ;   Dec.  Dig.  {  296.*] 

9.  Appeal  and  EJbrob  (S'  1068*)- Instruc- 
tions IN  Appellant's  Favor. 

An  instruction  upon  a  point  which  the  jury 
6nds  in  favor  of  appellant  cannot  be  assigned  as 
error. 

[Eld.  Note.— For  other  cases. -see  Appeal  and 
Error,  Cent  Dig.  88  4225-^^,  4230;  Dec. 
Wg.  8  1068.*] 


10.  Appeal  and  Ebbob  (|  1062*)— Bvidencb 

IN  Appellant's  Favor. 

'  The  admission  of  evidence  upon  a  point 
which  the  jury  finds  in  favor  of  appellant  is  not 
error;    he  not  being  prejudiced  thereby. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  |  4175 ;   Dec  Dig.  {  1052.*] 

Appeal  from  Circuit  Court,  Chippewa 
County;  A.  J.  Vlnje,  Judge. 

Action  by  F.  W.  Lehman  against  the  Chi- 
cago, St  Paul,  Minneapolis  &  Omaha  Ball- 
way  Company.  Judgment  for  defendant, 
and  plaintiff  appeals.    Affirmed. 

Among  other  references  upon  the  part  of 
the  appellant  were  the  following:  Boelter 
V.  Ross  L.  Cp.,  103  Wis.  324,  79  N.  W.  243; 
Stork  T.  Cooperage  Company,  127  Wis.  318, 
106  N.  W.  841;  Dowd  v.  RaUway  Co.,  84 
Wis.  105,  54  N.  W.  24,  20  L.  R.  A.  627.  36 
Am.  St  Rep.  917;  Hardt  t.  Railway  Co.. 
130  Wis.  612,  110  N.  W.  427;  Polaskl  v.  Coal 
Co.,  134  Wis.  259,  U4  N.  W.  437,  14  L.  R.  A. 
(N.  S.)  952;  Horn  v.  Box  Company,  123  Wis. 
399,  101  N.  W.  935;  Mauch  v.  Hartford,  112 
Wis.  40,  87  N.  W.  816;  Ruscher  v.  Stanley. 
120  Wis.  380,  98  N.  W.  223;  Hocking  t. 
Windsor  Spring  Co.,  125  Wis.  575,  104  N. 
W.  705;  Zaz/dzeweskl  ▼.  Barker,  131  Wis. 
494,  111  N.  W.  689,  120  Am.  8t  Rep.  1059; 
Bandekow  v.  0.,  B.  &  Q.  Ry.  Co.,  136  Wis. 
341,  117  N.  W.  812;  Bloor  v.  Delafleld.  69 
Wis.  273,  34  N.  W.  115;  Anderson  v.  Brass 
Co.,  127  Wis.  273,  106  N.  W.  1077;  Leqne  v. 
Madison,  etc,  133  Wis.  547,  113  N.  W.  046; 
Clemons  v.  Railway  Co.,  137  Wis.  387,  119 
N.  W,  102;  Olwell  ▼.  Skobls,  126  Wis.  308, 
105  N.  W.  777. 

Among  other  references  upon  the  part  of 
the  respondent  were  the  following:  Poluckie 
V.  Wegenke,  137  Wis.  433.  119  N.  W.  188; 
Hyer  v.  Janesville,  101  Wis.  371,  77  N.  W. 
729;  Klatt  v.  N.  O.  Foster  L.  Ca,  92  Wis. 
622,  66  N.  W.  791;  Holt  v.  Railroad  Co.,  94 
Wis.  696,  69  N.  W.  352;  Kucera  v.  Merrill 
L.  Co.,  91  Wis.  637,  65  N.  W.  374;  Raffke  v. 
Patten  Paper  Co.,  136  Wis.  535,  117  N.  W. 
1004;  Nass  V.  Schulz,  105  Wis.  146,  81  N. 
W.  133;  Dean  v.  Railway  Co.,  43  Wis.  305; 
Golta  V.  Railway  Co.,  76  Wis.  136,  44  N.  W. 
752;  McKeon  v.  Railway  Co.,  94  Wis.  477, 
69  N.  W.  175,  35  I*  R.  A.  252,  69  Am.  St 
Rep.  910;  Montanye  v.  N.  M.  Co.,  127  Wis. 
22,  105  N.  W.  1048. 

W.  H.  &  T.  F.  Prawley,  for  appellant 
Bundy  &  Wilcox  and  James  B.  Sheean.  for 
respondent 

TIMLIN,  3.  The  complaint  in  this  case 
averred  that  the  plalntllT  was  a  locomotive 
fireman  In  the  employment  of  defendant 
In  the  performance  of  such  duty  be  was 
required  to  use  a  pick  or  hammer  for  the 
purpose  of  breaking  the  larger  pieces  of 
coal  preparatory  to  putting  the  same  In  the 
Are  box.  In  striking  the  coal  with  this  pick 
or  hammer  a  piece  of  coal  flew  Into  his  eye. 


*For  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  &  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  LjOOQIC 


Wla.) 


LEHMAN  T.  CHICAGO,  ST.  P.,  M.  &  O.  RY.  CO. 


1061 


and  Injured  It  The  pick  or  hammer  was  de- 
fective. In  that  the  outer  edges  of  Its  face 
had  become  trom  and  rounded  from  long 
continued  use.  The  defendant  failed  In  Its 
duty  to  famish  the  plaintiff  reasonably  safe 
tools  and  appliances.  The  jury  found  that 
the  pick  was  In  a  defective  condition,  and 
this  defective  condition  was  the  cause  of  the 
plaintiff's  injury,  but  that  the  plaintiff  was 
guilty  of  a  want  of  ordinary  care  which  con- 
tributed to  his  Injury. 

Various  errors  are  assigned  by  appellant, 
but,  the  verdict  being  in  appellant's  favor 
on  all  points  submitted  to  the  jury  except 
his  contributory  negligence,  only  those  al- 
leged errors  affecting  the  verdict  and  relat- 
ing to  contributory  negligence  or  bearing 
apon  that  issue  can  be  considered  prejudicial 
to  the  appellant.  The  acddent  occurred  on 
March  7,  1907,  prior  to  the  time  at  which 
chapter  254,  Laws  1907,  went  into  effect. 
The  pick  or  hammer  is  an  Implement  having 
a  wooden  handle  about  three  feet  long  in- 
serted In  an  Iron  cross-head,  having  a  ham- 
mer face  on  one  end  and  a  pick  point  on 
the  other  end,  and  is  in  all  respects  a  simple 
tool  within  the  rule  of  Meyer  v.  Ladewlg, 
130  Wis.  666,  110  N.  W.  419,  13  L.  R.  A.  (N. 
S.)  684,  and  cases  there  cited.  The  hammer 
end  of  this  pick  originally  presented  a  flat 
surface  which  had  become  battered  and  con- 
vex by  use.  Were  the  question  properly  be- 
fore us,  we  would  not  be  Inclined  to  hold 
that  the  Implement  was  unsafe  or  defective 
in  this  condition.  But,  the  jury  having  found 
that  the  coal  pick  was  in  a  defective  condi- 
tion at  the  time  of  the  accident,  the  case 
will  be  decided  upon  the  hypothesis  that  this 
finding  Is  a  verity.  The  third  question  of 
the  special  verdict  finding  the  plaintiff 
guilty  of  contributory  negligence  must  bar 
his  recovery  unless  It  ought  to  be  set  aside, 
and  the  answer  of  the  jury  changed  from 
"yes"  to  "no"  because  of  lack  of  evidence 
to  support  such  finding. 

From  the  plaintiff's  evidence  it  appears 
thnt  at  the  time  of  the  injury  he  was  busy 
shoveling  coal,  and  in  so  doing  encountered 
a  veey  large  lump  of  coal  which  he  tried 
to  move  with  his  shovel.  "That  was  the  first 
time  I  thought  of  a  coal  pick,  so  I  reached 
np  to  the  usual  place  where  coal  picks  are 
kept,  right  np  handy  on  the  right  side  of  the 
engine — ^I  always  carry  mine — used  to,  I 
reached  np  there,  and  took  the  coal  pick,  and 
got  hold  of  the  coal  pick,  and  I  struck  the 
coal,  and  was  struck  in  ttte  eye.  I  reached 
np  on  the  right-hand  side  of  the  engine  and 
got  the  pick,  and  stepped  down  and  struck 
it,  and  tried  to  break  it  so  it  would  all  come 
out  It  could  not  come  out  the  way  it  was. 
It  was  too  big;  too  long;  and  the  first  blow 
I  struck  it  fiew  up  and  struck  me  in  the 
eye."  He  had  not  prior  to  that  time  ascer- 
tained whether  there  was  a  pick  on  the  en- 
gine or  not,  evidently  presuming  that  the 
engine  carried  a  pick  aa  usual,  and  he  further 


testified  upon  cross-examination  that  he  did 
not  make  any  examination  of  the  pick  before 
he  struck  the  coal,  did  not  look  at  it  at  all, 
did  not  look  to  see  what  kind  of  a  face  it 
had  on  it,  or  whether  it  was  a  new  pick 
or  an  old  pick,  }ust  caught  it  np  by  the  han- 
dle and  took  a  swing  at  the  coaL  He  waa 
an  experienced  fireman,  and  claimed  to  know 
that  picks  of  this  kind  so  battered  as  to  pre- 
sent a  convex  surface  on  the  hammer  enA 
were  apt  to  cause  coal  splinters  to  fly,  but. 
did  not  know  that  the  pick  in  question  was 
in  this  condition,  and  did  not  look  at  the 
pick  for  the  purpose  of  ascertaining.  The 
question  of  the  contributory  negligence  of 
one  Injured  by  the  negligence  of  another  is 
usually  a  question  of  fact  The  question 
whether  one  seizing  a  pick,  a  hammer,  or  an 
ax,  and  striking  a  blow  with  it  without 
even  glancing  at  the  condition  of  the  imple- 
ment is  In  the  exercise  of  ordinary  care, 
seems  to  be  peculiarly  a  question  of  fact  for 
the  jury.  The  more  general  rules  that  there 
Is  no  duty  on  the  part  of  the  servant  to  In- 
spect machinery  and  appliances  furnished  by 
the  master,  and  that  the  servant  may  rely 
upon  the  master  to  furnish  safe  tools  and  ap- 
pliances, do  not  at  all  conflict  with  this  con- 
clusion. Inspection  means  a  somewhat  care- 
ful or  critical  examination.  Armour  v.  Bra- 
zeau,  191  111.  117,  60  N.  B.  904 ;  Texas  &  Pac. 
R.  Co.  V.  Allen,  114  Fed.  177,  52  C.  C.  A.  13S. 
Notwithstanding  the  servant  may  rely  up<Hi 
the  master  discharging  his  duty  to  furnish 
safe  tools  and  appliances  and  is  not  called 
upon  to  Inspect  them  before  using,  still,  if 
as  a  matter  of  fact  ordinarily  prudent  and 
careful  persons  are  used  to  glance  at  the 
Implement  with  which  they  strike  before 
striking  a  blow  under  the  circumstances  in 
this  case,  and  the  plaintiff  neglected  to  do 
so,  and  such  neglect  contributed  to  cause  the 
injury  in  question,  he  may  well  be  found 
guilty  of  contributory  negligence.  It  is  said 
that  contributory  negligence  must  proximate- 
ly have  contributed  to  produce  the  Injury 
complained  of,  and  no  act  or  omission  is  the 
proximate  cause  of  an  injury  unless  the  per- 
son guilty  of  the  act  or  omission  ought  in 
the  exercise  of  ordinary  diligence  to  have  an- 
ticipated that  an  injury  might  result;  that, 
not  knowing  of  the  defect  in  question,  the 
plaintiff  could  not  have  anticipated  Injury; 
and  that  his  omission  to  look  at  the  imple- 
ment before  using  it,  even  if  a  laCk  of  ordi- 
nary care,  was  not  such  laCk  of  ordinary 
care  as  had  legal  causal  relation  to  the  in- 
jury. This  is  ingenious,  but  unsound. 
Knowledge  which  may  be  acquired  by  the- 
exercise  of  ordinary  care  Is  for  the  purpose* 
of  this  rule  knowledge  possesled.  For  all 
that  plaintiff  knew  or  tried  to  know,  tbfr 
plckhead  might  be  loose,  or  the  handle  might 
be  broken,  or  he  might  have  seised  the  wrong- 
implement  It  was  not  necessary  that  h» 
should  have  anticipated  the  precise  injury 
which  occurred.  If  the  act  was  careless  and 
likely  to  result  in  some  injury,  that  is  sufll- 


Digitized  by  VjOOQ  l€ 


1062 


122  NOBTHWESTBBM  BEPOBTEB. 


(Wi«. 


clent.  When  the  jury  found  ibe  plaintiff 
lacking  in  ordinary  care  which  contributed 
to  the  injury,  they  necessarily  found  that 
reaching  for  a  tool  or  implement  to  its  ac- 
customed place,  grasping  it,  swinging  it  up, 
^and  striking  a  blow  with  it  without  looking 
at  the  tool  or  implement  was  an  act  from 
which  an  ordinarily  prudent  person  might 
anticipate  some  injury  to  himself.  In  other 
words,  they  found  all  the  elements  of  fact 
which  go  to  make  up  a  case  of  contributory 
negligence.  It  could  hardly  be  claimed  that 
notwithstanding  the  duty  of  the  master  to 
furnish  safe  tools  and  appliances,  and  not- 
withstanding tlie  right  of  the  servant  to 
presume  tliat  the  master  has  performed  his 
duty,  the  latter,  although  he  may  omit  the 
more  formal  act  of  inspection,  might  also 
omit  all  usual  and  ordinary  care. 

2.  The  only  facts  found  by  the  verdict 
relative  to  the  negligence  of  the  defendant 
were  as  follows:  (1)  The  pick  that  plaintiff 
used  at  the  time  of  the  accident  was  in  a  de- 
fective condition;  (2)  such  defective  condi- 
tion was.  the  proximate  cause  of  plaintitTs 
Injury.  We  have  seen  that  the  Implement 
was  one  properly  described  as  a  simple  tool. 
The  verdict  did  not  expressly  find  that  the 
defendant  knew  or  ought  to  have  known 
of  the  defective  condition  of  the  pick,  or  any 
other  fact  or  circumstance  tending  to  show 
negligence  on  the  part  of  the  defendant,  ex- 
cept that  the  tool  at  the  time  of  the  accident 
was  in  a  defective  condition,  and  the  second 
question  of  the  special  verdict,  that  the  de- 
fective condition  of  the  pick  was  the  proxi- 
mate cause  of  plaintlCTs  injury.  Stork  ▼. 
Cooperage  Co.,  127  Wis.  318,  106  N.  W.  841; 
Meyer  v.  Ladewig,  130  Wis.  566,  110  N.  W. 
419,  13  L.  R.  A.  (N.  S.)  684 ;  Isaacson  v.  Wis. 
Tel.  Co.,  138  Wis.  63,  119  N.  W.  804.  If  the 
verdict  be  in  this  respect  insufficient,  the 
court  below  having  rendered  Judgment  for 
the  defendant,  it  must  be  considered  that  the 
court  determined  upon  the  evidence  that  the 
defendant  was  not  negligent  Section  2858m, 
Laws  1907;  Bates  v.  Railway  Co.  (decided 
October  5,  1909)  122  N.  W.  745.  But  we  do 
not  decide  that  these  two  findings  were  suf- 
ficient or  Insufficient  to  convict  the  defendant 
of  negligence.  If  we  assume  as  most  favor- 
able to  the  appellant  and  for  the  purposes 
of  this  decision  that  they  were  so  sufficient, 
that  is  all  appellant  can  ask. 

3.  Error  is  assigned  upon  the  following 
Instruction  to  the  Jury  relative  to  the  third 
question  of  the  special  verdict:  "By  'ordi- 
nary care'  is  meant  such  care  as  the  great 
mass  of  mankind  ordinarily  exercise  under 
the  same  or  similar  circumstances,  and  if 
you  find  the%)ick  was  defective,  and  further 
find  that  plaintiff  by  the  exercise  of  ordina- 
ry care  could  have  examined  it  and  ob- 
served its  condition  before  using  It,  then  you 
must  find  this  question  in  the  affirmative,  or, 
if  you  find  that  he  was  otherwise  guilty  of 


any  want  of  ordinary  care  that  contributed 
to  produce  blB  injury,  then  yon  will  answer 
the  question  In  the  affirmative."  The  prin- 
cipal criticism  submitted  is  upon  the  use  of 
the  word  "could."  Appellant  contends  that 
the  words  used  at  this  place  should  have 
been  "ought  to."  But  what  one  could  in  the 
exercise  of  ordinary  care  do  to  avoid  injury, 
that  he  ought  to  do;  and  one  ought  to  do 
what  he  could  in  the  exercise  of  ordinary 
care  do  to  avoid  injnry.  The  instruction  was 
not  erroneous.  It  does  not  require  the  plain- 
tiff to  do  all  he  could  do  to  avoid  the  injury, 
but  to  do  all  that  he  in  the  exercise  of  or- 
dinary care  could  do. 

4.  The  instructions  relative  to  what  is  meant 
by  a  defective  condition  cannot  be  assigned 
as  error  by  the  appellant  because  the  Jury 
found  In  his  favor  upon  that  point 

5.  Error  is  assigned  on  the  admission  of 
the  evidence  of  Edgell  and  McDonald.  The 
former,  after  testifying  that  he  used  the  same 
coal  pick  in  cracking  coal  from  the  time  the 
plaintiff  was  hurt  until  the  train  reached 
its  destination,  was  asked:  "Did  you  find 
any  difficulty  in  using  it  for  that  purpose?" 
and  he  answered,  "Not  a  particle,"  "Did 
you  find  that  it  caused  you  any  more  danger 
to  break  coal  with  that  pick  than  any  other 
pick  that  you  had  used  for  a  similar  pur- 
pose?" and  he  answered,  "No,  sir."  Mc- 
Donald, another  witness,  testified  that  he 
used  the  pick  on  the  run  next  day,  and  was 
asked,  "Did  you  find  in  the  use  of  that  pick 
that  it  increased  any  tiazard  of  splinters 
flying  from  other  picks  that  yon  had  used?" 
to  which  he  answered:  "I  couldn't  see  any 
difference  in  It  to  other  picks."  This  testi- 
mony related  to  the  question  whether  or  not 
the  pick  was  defective,  thereby  causing  splint- 
ers of  coal  to  fly.  As  we  have  seen,  this  find- 
ing was  in  favor  of  the  appellant;  conse- 
quently the  appellant  was  not  prejudiced  by 
the  admission  of  the  evidence.  It  is  sug- 
gested, however,  that  this  evidence  has  some 
bearing  on  the  question  of  the  contributory 
negligence  of  the  plaintiff.  We  think  not 
The  plaintiff's  contributory  negligence,  if  it 
existed,  and  it  was  found  by  the  Jury  to  ex- 
ist, consisted  in  reaching  for  the  pick,  swing- 
ing it  up  and  striking  a  blow  with  It  with- 
out even  a  glance  at  the  pick  to  ascertain 
Its  condition. 

The  Judgment  of  the  circuit  court  Is  af- 
firmed. 


GREEN  BAY  &  MISSISSIPPI  CANAL  CO. 
V.  TELULAH  PAPER  CO.  et  al. 

(Supreme  Court  of  Wisconsin.    Oct  26,  1909.) 

1.  Navioablb  Watem  (8  39*)— Dams— Flow- 
age  OF  Lands— IdxixATioir  of  Acnons. 
St  1898,  I  4221,  rabd.  3,  limiting  the  time 
for  an  action  tor  damages  for  flowing  lands  by 
the  "maintenance  of  any  milldam,"  first  enact- 
ed by  Laws  1862,  p.  lOo,  c.  184,  providing  that 


'^OT  otner  casei  lee  lame  topic  and  section  NUMBER  in  Dec.  ft  Am.  Diga.  1S07  to  date,  *  Reporter  Indezw 


Digitized  by 


Google 


Wla.)       GREEN  BAT  &  MISSISSIPPI  OAKAL  CX).  ▼.  TELULAH  PAPER  OO. 


1063 


DO  action  lor  damages  for  the  flowing  of  lands 
by_  the  erection  of  any  milldam  shall  be  main- 
tained when  the  lands  have  been  flowed  for  10 
years,  etc.,  is  general  in  terms,  and  is  not  con- 
fined to  miUdams  erected  under  chapter  146,  en- 
tiUed  "Of  mills  and  milldams"  (Rev.  St.  1858, 
c.  56)>  authorizing  the  construction  of  dama 
across  nonnaTigable  streams,  but  applies  to  a 
dam  built  across  a  navigable  stream  to  create 
water  power  to  operate  a  mill. 

W'E2d.   Note. — For  other  cases,   see   Navigable 
atera,  Cent.  Dig.  8  117 ;   Dec.  Dig.  |  39.*] 

2.  Statutkb  (}  190*)— CoNSTBuoTioN— Mean- 
ing or  WoBDS— Existence  of  Akbiouitt. 

Courts  should  not  be  industrious  in  seek- 
ing out  obscure  or  unusual  meanings  to  attach 
to  statutory  expressions,  when  the  words  used 
are  plain  and  unambiguous,  and  the  ordinary 
meaning  is  entirely  reasonable. 

[Ed.  Note.— For  other  cases,  see  Statutes, 
Cent  Dig.  |  269;   Dec.  Dig.  {  190.*] 

3.  Navigable  Watebb  (|  89*)— Dams— Flow- 
age  OF  Lands— Limitation  of  Actions. 

It  is  immaterial  that  the  ownership  of  the 
dam  and  the  mills  may  be  in  different  persons, 
and  though  the  power  created  by  the  dam  is 
sold  or  leased  to  owners  of  mills  for  mill  pur- 
poses. 

[Ed.  Note.— For  other  cases,  see  Navigable 
Watera,  Cent  Dig.  S  117;   Dec.  Dig.  |  89.*] 

4.  Watebs  and  Water  Courses  (|  164*)— 
Dams— Flowage  of  Lands— Prescription. 

The  effect  of  St.  1898,  {  4221,  subd.  3, 
limiting  the  time  for  an  action  for  damages  for 
the  flowing  of  lands  by  the  construction  or  main- 
tenance of  a  milldam,  is  to  confer  title  after 
10  years'  user,  because  the  statute  of  limita- 
tions destroys  the  right  as  well  as  bars  the 
remedy,  and  the  statute  bars  an  action  to  re- 
strain the  continuance  of  a  dam  as  a  nuisance, 
with  an  incidental  claim  for  damages,  when  the 
dam  has  been  maintained  adversely  for  the 
statutory  period. 

WBd.  Note.— For  other  cases,  see  Waters  and 
ater  Conrses,  Cent  Dig.  {{  211,  212;    Dec. 
Dig.  i  164.*] 

6.  Boundaries    (j   15*)— Navigable    Streak 

AS  Boundary—Lands  under  Water— Own- 

EB8HIP— "Land.  " 

The  owner  of  the  bank  of  a  navigable 
stream  owns  to  the  center  of  the  stream,  unless 
the  ownership  of  the  bank  and  the  bed  of  the 
stream  has  been  separated,  subject  only  to  gov- 
ernmental and  public  rights ;  and  the  bed  of 
a  navigable  stream  is  "land." 

[Ed.  Note.— For  other  cases,  see  Boundaries, 
Cent  Dig.  H  108,  111;    Dec.  Dig.  $  15.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  6,  pp.  3975-3984 ;    vol.  8,  pp.  7700-7701.] 

6.  Navigable  Waters  (8  89*)— Dams— "Flow- 
ing OF  Lands"— Limitation  of  Actions. 

A  dam  across  a  navigable  stream,  which 
seta  back  the  water  of  the  stream  without  over- 
flowing any  lands  outside  ot  the  banks,  but 
merely  raising  the  water  within  the  banks  so  as 
to  lower  the  available  head  of  the  water  power 
of  the  dam  of  an  upper  proprietor  owning  the 
lot  on  the  side  of  the  stream  on  which  the  dam 
rests,  causes  a  "flowing  of  lands"  within  St. 
1898,  8  4221,  subd.  3,  limiting  the  time  for  an 
action  for  damages  for  flowing  lands  caused  by 
the  maintenance  of  a  milldam. 

[Ed.  Note.— For  other  cases,  see  Navigable 
Waters,  Cent  Dig.  8  117;   Dec.  Dig.  8  39.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  3,  p.  2853.] 

7.  Waters  and  Water  Coubses  (8  164*)— 
Dams— Flowing  Lands— Pbesckiption. 

To  raise  the  bar  created  by  St.  1898,  8 
4221,  subd.  8,  limiting  the  time  for  an  action 


for  damages  for  flowing  lands  by  the  mainte- 
nance of  a  milldam,  the  user  must  have  been  ad- 
verse for  10  years  prior  to  the  commencement  of 
the  action,  and  a  finding  that  the  setting  back 
of  the  water  by  a  dam  had  been  uninterrupted, 
continuous,  open,  notorious,  and  adverse,  so  as 
to  maintain  on  the  land  of  an  upper  proprietor 
the  same  water  level  for  more  than  10  years, 
includes  the  elements  necessary  to  render  the 
statute  operative,  though  the  word  "adverse," 
while  embodying  a  conclusion  of  law,  is  an  ulti- 
mate conclusion  of  fact,  embracing  the  elements 
necessary  to  make  possession  adverse. 

W^Ed.  Note. — For  other  cases,  see  Waters  and 
ater  Courses,  Cent  Dig.  88  211,  212;    Dec. 
Dig.  8  164.*] 

8.  Waters   and   Water  Courses   (8   179*)— 
Dams— Prescription— Evidence.  . 

Proof  that  a  dam  setting  back  the  water  of 
a  stream  was  erected  in  a  year  without  showing 
the  date  thereof  did  not  show  that  adverse  hol(^ 
ing  under  the  dam  began  before  December  Slat 
of  that  year. 

[Ed.  Note.— For  other  cases,  see  Watera  and 
Water  Courses,  Cent  Dig.  8  250;    Dec  Dig.  8 

9.  Landlord  and  Tenant  (8    61*)  —  Land- 
lord's Tile— Denial  by  ^nant. 

A  tenant  cannot  deny  his  landlord's  tttie 
daring  the  tenancv,  nor  acquire  a  hostile  title  to 
the  same  while  the  relationship  continues. 

[Ed.  Note.— For  other  cases,  see  Landlord  and 
Tenant,  Cent  Dig.  88  151,  187-196 ;  Dec.  Dig. 
8  61.*] 

10.  Waters  and  Water  Courses  (8  164*)- 
Dams— Flowing  Lands— Prescription. 

Defendants'  dam  was  completed  in  1877. 
For  9  years  an  individual  regulated  the  flow  of 
the  water,  and  he  received  orders  from  defend- 
ants as  they  wanted  accommodations.  There- 
after, and  until  1888,  a  third  person  took  prin- 
cipal charge  of  the  regulation  of  the  flow,  but 
there  was  nothing  to  show  that  he  acted  under 
any  definite  arrangement  with  defendants.  In 
1879  plaintiff  company  became  a  tenant  of  the 
upper  mill  owner  by  a  lease  of  water  power  and 
lots  below  defendants'  dam.  The  third  person 
was  the  general  manager  of  the  company.  De- 
fendants' dam  did  not  interfere  with  the  prop- 
erty of  the  company  prior  to  1891.  It  did  not 
appear  that  the  property  leased  to  the  company 
was  interfered  with  or  encroached  on  by  the 
setting  back  of  the  water  from  defendants'  dam. 
Held  that  notwithstanding  the  doctrine  that  a 
tenant  cannot  deny  his  landlord's  title,  it  was 
not  shown  that  the  adverse  holding  by  defend- 
ants was  not  adverse  because  defendants'  dam 
was  in  possession  of  plaintiff's  tenant.    ,,  j  ■• 

W'Ejd.  Note.— For  other  cases,  see  Wafers  and 
ater  Courses,  Cent.  Dig.  88  211,  212;    Dec. 
Dig.  8  164.*] 

11.  Navigable  Waters  (8  89*)— Daks— Pre- 
scriptive Right. 

The  fact  that  a  dam  across  a  navigable 
stream  was  an  unlawful  structure  because  it 
obstructed  the  stream  without  legislative  au- 
thority did  not  prevent  the  running  of  limita- 
tions against  an  upper  riparian  proprietor. 
WEd.  Note.— For  other  cases,  see  Navigable 
aters.  Cent  Dig.  8  112;   Dec.  Dig.  8  39.*] 

Appeal  from  Circuit  Court;  Outagamie 
County;  Chester  A.  Fowler,  Judge. 

Action  by  the  Qreen  Bay  &  Mississippi 
Canal  Company  against  the  Telulah  Paper 
Company  and  others.  From  a  Judgment  for 
defendants,  plaintiff  appeals.     Affirmed. 

Quarles,  Spence  &  Quarles  (Oeo.  Lines,  of 
counsel),  for  appellant  Hooper  &  Hooper, 
for  respondents. 


•For  other 


I  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  U07  to  d&U,  ft  Reporter  Indexes 

Digitized  by  VjOOQ  l€ 


1064 


122  NORTHWESTERN  REPORTER. 


(WlflL 


WINSLOW,  a  J.  In  February,  1882,  the 
plaintiff  corporation,  wblcb  is  the  owner  of 
the  surplus  water  power  not  needed  for  navi- 
gation purposes  created  by  the  Grand  Chute 
or  goyermnent  dam  in  the  Fox  river  at  Ap- 
pleton,  brought  this  action  In  equity  against 
the  d^endants,  who  own  the  dam  Immediate- 
ly below  the  plaintiff's  dam,  and  known  as 
the  Middle  dam  at  Appleton,  and  the  water 
power  created  thereby,  to  restrain  the  de- 
fendants from. maintaining  said  middle  dam 
at  its  present  height,  claiming  that  the  same 
unlawfully  sets  back  the  water  of  the  river, 
and  flows  the  plaintiff's  lands  and  water 
wheels  to  the  depth  of  30  inches.  The  trial 
court  found  that  there  had  been,  prior  to  the 
commencement  of  this  action  10  years'  un- 
interrupted and  adverse  user  by  the  defend- 
ants of  the  said  middle  dam  at  the  height  at 
which  It  was  maintained  at  the  time  of  the 
commencement  of  this  action,  and  thereupon 
dismissed  the  complaint,  holding  that  the  ac- 
tion was  barred  by  subdivision  3,  f  4221,  St 
1896,  or  if  not  barred  by  this  subdivision, 
then  by  subdivision  4  of  the  same  section. 
The  plaintiff  first  contends  that  subdivision  3, 
above  mentioned,  is  not  applicable  (a)  be- 
cause said  section  only  applies  to  mlUdams 
across  nonnavlgable  streams,  and  the  Fox 
river  Is  In  law  a  navigable  stream;  (b)  be- 
cause the  said  middle  dam  Is  not  a  mllldam 
In  the  usual  and  ordinary  sense;  (c)  because 
this  is  not  an  action  to  recover  damages ;  and 
(d)  because  no  flowing  of  lands  is  involved. 
We  will  take  up  these  propositions  in  the  or- 
der Indicated. 

1.  The  subdivision  named  places,  among 
the  actions  which  must  be  brought  within  10 
years  after  the  cause  of  action  accrues,  "An 
action  for  the  recovery  of  damages  for  flow- 
ing lands,  when  such  lands  have  been  flowed 
by  reason  of  the  construction  or  maintenance 
of  any  milldam."  l^ls  section  first  appeared 
upon  our  statute  books  in  1862  as  chapter 
184,  p.  10(5,  of  the  laws  of  that  year,  where  It 
read  asioUows:  "No  action  for  the  recovery 
of  damages  for  the  flowing  of  lands  shall  be 
maintained  in  any  court  in  this  state,  when 
it  Shan'  appear  that  said  lands  have  been  flow- 
ed by  reason  of  the  construction  or  erection 
of  any  milldam  for  the  ten  years  next  preced- 
ing the  commencement  of  Such  action,  provid- 
ed, any  party  shall  have  one  year  from  and 
after  the  passage  of  this  act  in  which  to  com- 
mence an  action  for  the  recovery  of  any 
lands,  tenements,  and  hereditaments  hereto- 
fore flowed,  or  for  the  recovery  of  the  posses- 
sion thereof  or  for  damages  to  the  same." 
The  argument  Is  that  when  this  act  was  pass- 
ed the  w«rd  "milldam"  had  acquired  a  tech- 
nical and  special  meaning  in  our  law  by  rea- 
son of  the  existence  of  chapter  56,  Rev.  St 
1858,  entitled  "Of  mills  and  mllldams"  (now 
chapter  146,  St.  1898),  and  that  this  special 
meaning  was,  and  is,  confined  to  dams  au- 
thorized by  said  chapter  to  wit,  across  non- 
navigable  streams,  and  that  the  subsequent 
re-enactment  of  the  section  in  substantially 


the  same  words  in  the  Revisions  of  1S78  and 
1898  as  snbdivlaion  8,  |  4221,  In  no  way 
changes  the  original  special  meaning.  Doubt- 
less the  result  would  follow,  if  the  major 
premise  were  correct  Rev.  St  1878,  i  4985 ; 
St  1898,  I  4965.  But  we  see  nothing  to  In- 
dicate that  the  Legislature  in  passing  chapter 
184  of  the  Laws  of  1862  intended  to  confine 
the  provisions  of  the  act  to  milldams  erected 
under  the  provisions  of  chapter  56  across  non- 
navigable  streams;  on  the  contrary,  the  ar- 
gument seems  to  be  the  other  way. 

The  act  l8  general  in  Its  terms,  and  pur- 
ports to  bar  an  action  after  10  years'  flow- 
age  by  "any  milldam."  A  dam  which  is  buQt 
across  a  navigable  stream  for  the  purpose  of 
creating  water  power  to  operate  a  mill  is 
just  as  certainly  a  milldam  as  one  bnllt 
across  a  nonnavlgable  stream.  So  by  its  lan- 
guage the  act  covers  one  as  well  as  the  other. 
Courts  certainly  should  not  be  industrious  in 
seeking  out  obscure  or  unusual  meanings  to 
attach  to  statutory  expressions,  when  the 
words  used  are  plain  and  unambiguous,  and 
the  ordinary  meaning  is  entirely  reasonable. 
Now  had  the  Legislature  desired  and  intend- 
ed to  conflne  the  act  to  dams  erected  and 
maintained  under  the  milldam  law  (1.  e., 
dams  across  nonnavlgable  streams),  the  most 
obvious  and  natural  thing  would  be  to  say 
so  in  direct  language,  and  add  the  section  to 
chapter  66  of  the  Revised  Statutes  of  1858, 
thus  completing  the  special  code  governing 
the  erection  and  maintenance  of  this  class 
of  mllldams.  This  seems  the  more  certain 
when  it  is  remembered  that  there  were  many 
milldams  In  the  state  across  navigable 
streams  which  bad  been  erected  under  special 
legislative  acts,  and  also  that  the  milldam 
law,  while  first  enacted  In  1840,  was  repeal- 
ed in  1850  and  not  re-enacted  until  1857. 
During  this  Interregnum  the  session  laws 
fairly  teem  with  special  acts  authorizing  the 
erection  of  mllldams,  none  of  which  of  course 
were  milldams  In  the  technical  and  special 
sense  claimed  by  the  resiwndent  here.  It 
seems  probable  that  at  the  time  this  act  was 
passed  there  were  full  as  many  dams  In  the 
state  which  had  been  built  outside  of  the 
provisions  of  the  milldam  law  as  under  It 
Undoubtedly  the  Legislature  knew  this  fact, 
and,  so  knowing,  passed  a  law  applying  gen- 
erally to  any  milldam  "in  the  state."  XJpaa 
principle  it  would  seem  that  under  these  cir- 
cumstances this  law,  framed  In  unambiguous, 
general  words,  must  have  an  interpretation 
Just  as  broad  and  general  as  the  words  used 
commonly  receive.  Furthermore,  the  ques- 
tion seems  to  have  been  decided  adversely  to 
appellant  In  the  case  of  Rnehl  v.  Voight,  26 
Wis.  163,  where  the  owners  of  a  dam  on  Rock 
river,  erected  by  virtue  of  a  qpeclal  act  of  the 
territorial  Legislature  of  1845,  pleaded  this 
statute,  and  upon  this  exact  point  the  court 
said:  "The  language  of  the  statute  is  clear, 
precise,  and  comprehensive,  and  bars  every 
action  where  the  lands  have  beea  flowed  for 
10  years  without  any  claim  for  damages. 


Digitized  by  VjOOQ  l€ 


WlaJi       OBEEN  BAY  A  UI8SI8SIPPI  OANAL  CO.  v.  TELUIiAH  PAPEB  00.       1065 


The  statnte  means  this,  or  It  has  no  meaning 
whatever."  It  is  true  that  in  that  case  the 
act  authorizing  the  dam  made  it  subject  to 
the  proTlsions  of  the  mlUdam  law  then  exist- 
ing, bnt  the  decision  was  not  placed  on  this 
ground,  but  on  the  broad  ground  that  the 
language  covered  "any  mUldam"  or  none.  In 
Cobb  r.  Smith,  88  Wis.  21,  which  was  an  ac- 
tion of  flowage  caused  by  a  dam  erected  on  a 
navigable  stream  under  express  legislative 
grant,  this  statute  of  limitations  was  pleaded ; 
and,  while  It  was  held  that  the  pleading 
showed  that  the  use  had  not  been  adverse, 
still  the  court  treated  the  statute  as  appli- 
cable to  such  a  dam  had  the  facts  been  suf- 
ficient. 

2.  The  claim  that  the  middle  dam  is  not 
a  mllldam  within  the  meaning  of  the  word 
as  used  in  the  statute  Is  based  on  the  fact 
that  it  was  built  by  the  defendant  the  Ap- 
pleton  Water  Power  Company,  a  corporation 
organized  for  the  purpose  of  constructing 
this  dam  "and  for  improving  and  creating 
water  power  and  river  lots  in  and  near  said 
water  power  and  for  holding  and  disposing 
of  the  same,"  and  the  further  fact  that  it 
has  no  power  to  operate  mills,  and  does  not 
do  so,  but  has  sold  or  leased  the  power  cre- 
ated by  the  dam  in  parcels  to  the  various 
other  defoidantB  for  mill  purposes,  while 
retaining  title  to  the  dam  itself.  The  ar- 
gument does  not  appeal  to  us  very  strongly. 
It  seems  that  a  dam  erected  to  create  power 
to  operate  mills,  whidi  power  Is  used  ex- 
clusively to  operate  mills,  is  logically  and 
truly  a  mllldam,  notwithstanding  the  own- 
ership of  the  dam  and  of  the  mills  may  be 
in  difrerent  persons.  It  is  true  that  this 
court  has  held  that  chapter  184  of  the  Laws 
of  1862  only  applies  to  "mllldams  in  the 
proper  and  strict  sense  of  the  words,"  and 
that  a  dam  which  was  part  of  and  necessa- 
ry to  a  general  scheme  for  the  improve- 
ment of  the  navigation  of  a  river,  so  as  to 
make  it  a  public  highway,  was  not  properly 
a  "mllldam"  within  the  meaning  of  the  law, 
though  the  power  created  by  it  might  be 
used  to  operate  mills.  Arimond  t.  G.  B.  & 
M.  O.  Co.,  86  Wis.  41.  The  rule  there  laid 
down  seems  reasonable,  but  we  do  not  per- 
celre  that  it  is  applicable  to  the  present 
case. 

8.  We  agree  with  appellant's  contention 
that  this  is  not  an  action  to  recover  dam- 
ages, but  rather  an  equitable  action  to  en- 
Join  the  continuance  of  a  nuisance,  with  an 
incidental  claim  for  damages,  but  we  can- 
not agree  with  the  conclusion  drawn  there- 
from to  the  effect  that  the  limitation,  stat- 
nte  does  not  therefore  apply.  It  is  true  that 
the  law  in  terms  only  prohibits  the  bring- 
ing of  "an  action  for  the  recovery  of  dam- 
ages for  flowing  lands"  after  the  expira- 
tion of  the  10-year  period,  but  this  court  has 
held  that  the  effect  of  this  statute  is  to 
confer  title  after  the  10-year  user  is  com- 
plete, on  the  principle  that  where  (as  in 
Wisc(H>sin)   the  statute  of  limitations  de- 


stroys the  right,  as  well  as  bars  the  remedy, 
that  result  must  follow.  Johnson  v.  Boor- 
man,  68  Wis.  268,  22  N.  W.  614.  This  rul- 
ing effectively  disposes  of  this  contention. 

4.  The  contention  that  there  is  no  flowing 
of  lands  within  the  meaning  of  the  statute  in 
the  present  case  Is  yet  to  be  considered.  It 
appears  that  the  setting  back  of  the  water 
by  the  defendants'  dam  Is  whoUy  within 
the  banks  of  the  river,  so  that  no  lands  out- 
side of  the  banks  are  overflowed,  but  the 
dam  raises  the  water  within  the  banks  so 
as  to  lower  the  available  head  of  the  water 
power  furnished  by  plaintiff's  dam.  Is  this 
truly  a  flowing  of  lands?  We  think  it  is. 
To  hold  otherwise  would  be  to  ingraft  a 
very  narrow  and  technical  meaning  upon 
the  statute.  The  plaintiff  owns  the  lot  upon 
the  south  side  of  Pox  river,  upon  which  the 
south  side  of  its  dam  rests,  and  the  land  for 
some  distance  below,  and  hence  is  a  riparian 
owner.  In  this  state  the  owner  of  a  bank 
of  a  navigable  stream  owns  to  the  center 
line  (unless  the  ownership  of  the  bank  and 
the  bed  has  been  separated),  subject  only  to 
the  rights  of  the  public.  W.  R.  Club  v. 
Wade,  100  Wis.  86,  76  N.  W.  278,  42  L.  R.  A. 
305.  Hence  the  plaintiff  owns  the  bed  of  the 
river  at  and  below  its  dam,  subject  only  to 
governmental  and  public  ^gbts.  This  bed 
is  land.  While  ordinarily  covered  with  wa- 
ter to  some  depth,  the  defendants'  dam  has 
covered  It  with  water  to  a  greater  depth, 
and  rendered  it  less  valuable  to  Its  owner. 
This  is  flowing  of  lands  In  every  true  sense. 

But  the  appellant  further  contends  that, 
even  If  the  statute  of  limitations  be  applica- 
ble to  such  a  case,  the  facts  proven  do  not 
bring  the  present  case  within  the  statute. 
It  is  undoubtedly  true  that  the  user  must 
have  been  adverse  for  10  years  prior  to  the 
commencement  of  the  action  in  order  to 
raise  the  statutory  bar.  The  court  found 
that  the  setting  back  of  the  water  by  de- 
fendants' dam  had  been  "uninterrupted,  con- 
tinuous, open,  notorious,  and  adverse,  and 
so  as  to  maintain  on  plaintiff's  land  the 
same  water  level  in  the  same  stages  of  wa- 
ter" since  the  completion  of  the  dam  in  1877. . 
These  words  include  all  the  elements  neces- 
sary to  render  the  statute  operative.  If 
there  w«re  any  doubt  as  to  whether  the 
words  "uninterrupted,  continuous,  open,  and 
notorious"  covered  the  subject,  that  doubt 
would  be  removed  by  the  addition  of  the 
word  "adverse,"  which,  while  it  embodies  a 
conclusion  of  law,  is  also  a  comprehensive 
statement  of  an  ultimate  conclusion  of  fact 
embracing  all  the  elements  necessary  to 
make  possession  adverse.  We  are  entirely 
satisfied  from  examination  of  the  record 
that  the  evidence  fully  justified  the  finding 
of  the  court  in  this  regard,  and  we  deem  it 
nnneceesary  to  make  any  review  of  such 
evidence;  bnt  one  contention  which  the  ap- 
pellant makes  In  this  connection  must  re- 
ceive attention.  The  contention  is  that  the 
undisputed  evidence  shows  that  for  a  part 


Digitized  by  LjOOQ  IC 


1066 


122  NOBTHWESTBBN  RBPOBTBB. 


(W1& 


of  the  10  yean  the  possesBlon  and  manage- 
m^it  of  the  defendants'  dam  was  In  the 
hands  of  a  tenant  of  the  plalntlfC  at  the  up- 
per dam,  and  hence  that  the  possession  dur- 
ing such  time  could  not  be  adverse,  because 
it  was  possession  by  plalntUf's  tenant  The 
facts  on  which  this  claim  Is  based  are  in 
brief  as  follows:  The  defendants'  dam  was 
completed  some  time  In  1S77;  the  exact  date 
not  being  fixed  by  the  testimony  or  the  find- 
ings. Adverse  holding  under  It  Is  not  there- 
fore shown  to  have  begun  before  December 
Slst  of  that  year.  This  dam  had  a  spindle 
section  in  the  middle,  by  the  removing  or 
replacing  of  which  the  flow  of  water  was 
regulated  during  high  or  low  water.  This 
spindle  section  and  the  regulation  of  the 
flow  was  In  actual  charge  of  one  Cough. 
For  some  9  years  after  the  completion  of 
the  dam  he  received  his  general  directions 
from  Mr.  West,  who  was  the  original  owner 
of  the  powo:,  and  the  principal  stockholder 
In  the  Appleton  Water  Power  CJompany,  but 
the  other  defendants  also  gave  him  orders  if 
they  wanted  any  accommodations.  At  about 
the  close  of  the  9-year  period  West  sold 
to  the  Klmberly-CIat^  Company,  and  Mr. 
Charles  B.  Olark  of  that  company  took 
principal  diarge  of  the  regulation  of  the 
flow,  and  gave  Mr.  Oough  bis  orders  until 
1888.  There  is  no  evidence  showing  that 
the  defendant  mill  owners  ever  directly  au- 
thorized either  Mr.  West  or  Mr.  Clark  to 
act  as  principal  manager  of  the  dam.  They 
seem  to  have  volunteered  to  act  rather  than 
to  have  acted  under  any  definite  arrange- 
ment by  the  various  mill  owners.  The  user 
was  certainly  a  common  user  by  all  of  the 
defendants.  In  1S79  the  Atlas  Paper  Com- 
pany became  the  tenant  of  the  plaintiff  at 
Its  upper  dam  by  leasing  certain  amounts  of 
water  power  and  certain  lots  below  the  dam 
upon  which  it  operated  extensive  mills.  In 
1891  It  leased  all  of  the  power  available  at 
the  dam.  Mr.  Charles  B.  Clark  was  general 
manager  of  the  Atlas  Paper  Company  dur- 
ing the  entire  time  that  its  leasehold  inter- 
est continued.  The  defendant  Telulah  Pa- 
•  per  Company  built  its  mill  in  1887,  and  be- 
gan using  water  from  the  middle  dam  in 
1888.  Of  the  latter  corperatlon  Mr.  Clark 
was  also  general  manager.  The  doctrine 
that  a  tenant  cannot  deny  his  landlord's  ti- 
tle to  the  demised  property  during  his  ten- 
ancy, nor  acquire  a  hostile  title  to  the 
same  while  the  relationship  continues,  is 
well  settled.  Tondro  v.  Cushman,  5  Wis. 
279;  Slzer  v.  Olark,  116  Wis.  534,  93  N.  W. 
539.  The  reason  is  that  he  has  obtained  pos- 
session by  solemnly  acknowledging  that  his 
landlord  has  title  to  the  property  leased, 
and  hence  that  he  la  estopped  by  that  fact 
from  claiming  that  his  possession  of  the 
leased  property  is  adverse,  or  that  he  has 
acquired  a  hostile  and  paramount  title  there- 
to.   Giving  that  principle  its  fullest  weight, 


It  does  not  apply  here.  It  does  not  appear 
that  the  middle  dam  interferes  in  any  par- 
ticular with  the  property  leased  to  the  At- 
las Paper  Company  prior  to  1891.  That 
property  consisted  only  of  certain  lots  below 
the  plaintiff's  dam,  which  of  themselves  car- 
ried no  water  powor,  coupled  with  a  cer- 
tain specified  quantity  of  horse  poww  of  wa- 
ter from  the  dam.  It  nowhere  appears  that 
the  property  so  leased  was  at  any  time  or 
in  any  manner  interfered  with  or  encroach- 
ed upon  by  the  setting  back  of  the  water 
from  the  middle  dam.  Presumptively  there 
was  an  ample  supply  and  head  of  wa'ter  at 
the  dnm  to  fill  the  calls  of  the  lease,  even 
when  the  water  was  set  back  by  the  middle 
dam.  It  is  not  shown,  therefore,  that  the 
adverse  holding  by  the  defendants  was  in 
any  way  hostile  or  injurious  to  the  property 
leased  by  the  Atlas  Paper  Company. 

It  Is  further  said  that  the  defmdants'  dam 
is  and  was  an  unlawful  structure  because 
it  obstructs  a  public  navigable  river  without 
legislative  authority,  and  hence  it  is  argued 
that  no  right  to  maintain  it  can  be  acquired 
by  prescription.  This  point  was  decided  ad- 
versely to  appellant's  contention  In  the  case 
of  Pioneer  Wood  Pulp  Co.  v.  Chandos,  78 
Wis.  526,  47  N.  W.  661,  where  it  was  held 
that,  while  in  sudi  a  case  the  public  right 
of  navigation  might  not  be  barred,  the 
rights  of  upper  owners  would  be  barred  by 
falling  to  contest  the  question  until  the  bar 
of  the  statute  of  limitations  was  complete; 

No  further  points  require  attention. 

Judgment  aflSrmed. 

KEBWIN,  J.,  took  no  part. 


MONAGHAN  v.  NOBTHWESTBBN  FUEL 
CO. 

(Supreme  Court  of  Wisconsin.    Oct  26,  190O. 
Dissenting  Opinion  Oct  29,  1909.) 

1.  APPEAt  AND  Ebrob  ({  263*)— Reqttested 
IlTSTBUOTIONS— RKVIBW — NeCESBITX'  OF  E!X- 
CKPTIOir. 

Refusal  of  a  requested  instmctlon  cannot 
be  reviewed  where  no  exception  has  been  taken 
thereto. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent.  Dig.  {  1518 ;   Dec.  Dig.  I  263.*] 

2.  TBIAI.   (I   256*)   —  iNSTBTTCnONS  —  liDOTA- 

TioNs— Absenck  or  Reqitest. 

An  Instruction  that  the  jnnr  in  answering 
an  interrogatory  in  a  special  verdict  should  con- 
sider "among  other  things"  the  location  of  the 
machinery  in  question  with  reference  to  where 
it  became  reasonably  necessary  for  empioySs  to 
be  sitnated  in  dischatging  their  duties,  and  its 
situation  and  surroundings  as  shown  by  the  evi- 
dence, was  not  objectionable  for  failure  to  limit 
the  jury's  consideration  of  the  "other  things" 
to  things  shown  by  the  evidence  in  the  absence 
of  a  request  for  snch  limitation. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  i  631;    Dec.  Dig.  I  256.*] 


*For  otiier  caaea  le*  uuna  topic  and  sectioa  NUMBER  in  Dec.  ft  Am.  Digs.  VMfl  to  date,  A  Reporter  Indaxw 


Digitized  by  VjOOQ  l€ 


wis.) 


MONAOHAN  t.  NORTHWESTERN  FUEL  00. 


1067 


8.  Tbiai.  (I  255*)  —  Smoiai,  Vebdiot  —  Iw- 

STBUCnORB— Re<^uestb. 

The  court's  failure  to  give  any  instruction 
with  refeience  to  one  of  the  questions  submitted 
for  a  special  verdict  was  not  error  in  the  ab- 
sence of  a  request  therefor. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  {  630;  Dec.  Dig.  |  255.*] 

4.  Mastbb  and  Sbbvant  (f  96*)— Injubies  to 
Sbbvant— "Pboxiicatb  Cause." 

An  instruction,  in  an  action  for  a  servant's 
injury,  that  negligence  Is  the  proximate  cause 
of  an  injury  only  when  the  injury  is  Uie  nat- 
ural and  probable  result  of  it,  and  when  in 
the  light  01  attending  circumstances  it  ought  to 
have  been  foreseen  by  a  person  of  ordinary  care, 
was  proper. 

[Ed.  Note. — For  other,  cases,  see  Master  and 
Servant,  Cent.  Dig.  {  162 ;   Dec.  Dig.  |  96.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  6,  pp.  5T58-5769;    vol.  8,  p.  7771.] 

5.  Masteb  and  Servant  ({  274*)— Injitbies 

TO    SEBVANT— CONTBIBUTOBT    NEGLIGENCE— 

Evidence. 

Where,  In  an  action  for  injuries  to  a  serv- 
ant by  his  clothing  becoming  caught  in  certain 
gearing  while  be  was  engaged  in  oiling  the  ma- 
chinery, defendant  pleaded  contributory  negli- 
gence, evidence  showing  how  other  of  defend- 
ant's servants  oiled  the  machinery  prior  to  plain- 
tiff's employment  was  admissible  to  show  that 
plaintiff  oiled  the  macliinery  in  the  usual  way. 

[EU.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  |  949;    Dec.  Dig.  I  274.*] 

6.  Evidence  (g  637*)— Bxpebts— Competency. 

Where  a  physician  examined  plaintlfE  after 
the  injury,  he  was  competent  to  testify  as  to 
the  extent  of  the  injury  from  his  examination 
and  from  plaintiff's  testimony  as  to  his  condi- 
tion. 

[EJd.  Note.— For  other  cases,  see  Evidence, 
Cent.  Dig.  H  2345,  2346;   Dec.  Dig.  «  537.*] 

7.  TbiAL  (i  133*)— MISC0NDT70T  0»  COUNBEI/— 
ABQTniENT. 

In  an  action  for  injuries  to  a  servant,  plain- 
tiff's model  having  been  excluded  because  not 
correct,  plaintiff's  counsel  in  an  argument  that 
the  reason  defendant  did  not  produce  a  model 
was  that,  if  one  had  been  produced,  it  would 
have  been  more  unfavorable  to  defendant  than 
that  made  by  plaintiff.  Held  that,  the  court  on 
objection  having  instructed,  that  no  inference  ad- 
verse to  defendant  could  be  drawn  from  such 
argument  except  in  so  far  as  it  was  based  on  the 
testimony,  the  statement  was  not  error. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent 
Dig.  I  816;    Dec.  Dig.  f  133.*] 

8.  Mabteb  and  Sebvant  (|  286*)— Injttbies 
TO  Sbbtant  —  Danoebous  Machinebt  — 
Faildbe  TO  Coveb—Neoliqence— Question 

FOB  JUBT. 

Where  a  servant  was  injured  by  Incoming 
canght  in  uncovered  gearings,  which  it  was  nec- 
essary for  plaintiff  to  lean  over  in  oiling  the 
bearings  as  ne  was  doing  when  injured,  whether 
defendant  was  negligent  in  falling  to  perform 
its  statutory  duty  to  safeguard  the  bearings  was 
for  the  jury ;  there  being  no  attempt  to  show 
that  it  was  impracticable  to  cover  the  gearing 
without  seriously  impairing  the  eflSciency  of  the 
machinery. 

[E!d.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  I  1028;    Dec.  Dig.  g  286.*] 

9.  Masteb  and  Sebvant  (I  289*)— Injubieb 
TO  Servant— Unguabdbd  Machinebt— Con- 

TBIBUTOBT     NEOLiaEHOE    —    QUESTION     FOB 
JUBT. 

Plaintiff,  an  oiler,  was  Injured  while  oiling 
the  machinery  by  his  arm  becoming  caught  in 
certain  uncovered  gearing.    The  machinery  was 


not  protected  except  by  a  railing  three  feet  high, 
over  which  it  was  necessary  for  plaintiff  to  lean 
some  distance  to  see  the  oil  cups  because  of 
the  prevailing  coal  dust  Held,  that  under  Saq- 
born^s  St  Supp.  1906,  |  1636jj,  providing  that 
the  fact  that  an  employ!  remains  in  an  employ- 
ment with  knowledge  that  the  employer  has  not 
sufficiently  guarded  dangerous  machinery  shall 
constitute  no  defense  in  an  action  for  injuries, 
there  was  nothing  in  the  evidence  to  show  plain- 
tiff guilty  of  contributory  negligence  as  a  mat- 
ter of  law. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  §  1120;   Dec  Dig.  i  289.*] 

10.  Appeai.  and  Ebbob  (§  1004*)— Personal 

Injubies— Excessive  Damages. 

Plaintiff,  a  motor  operator  on  defendant's 
coal  dock,  43  years  old  and  earning  $2.75  per 
day,  was  injured  by  his  arm  becoming  caught 
in  certain  uncovered  gearing.  The  arm  was 
amputated  close  to  the  shoulder.  His  nose  was 
broken,  and  there  were  injuries  to  hisjace  re- 
sulting in  disfigurement.  Three  of  his  ribs  were 
fractured,  and  his  side  was  badly  lacerated, 
which  had  not  entirely  healed  at  the  time  of  the 
trial.  There  was  also  some  evidence  that  the 
injury  was  permanent.  Held,  that  a  verdict  al- 
lowing plaintiff  $14,500  sustained  by  the  trial 
court  could  not  be  disturbed  on  appeal. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  |  3945 ;   Dec.  Dig.  |  1004.*] 

Barnes,  Marshall,  and  Dodge,  JJ.,  dissenting 
in  part. 

Appeal  from  Circuit  Court,  Douglas  Coun- 
ty; A.  J.  Vlnje,  Judge, 

Action  by  John  J.  Monaghan  against  the 
Northwestern  Fuel  Company.  Judgment  for 
plaintiff,  and  defendant  appeals.    Affirmed. 

Action  to  recover  damages  for  a  personal 
Injury.  Plaintiff  was  employed  by  defend- 
ant on  Its  coal  dock.  Coal  was  elevated  and 
screened  at  such  dock,  and  the  necessary 
power  was  furnished  by  electric  motors. 
Plaintiff  had  been  In  charge  of  one  of  such 
motors  for  about  11  months  before  the  in- 
jury. The  motor  was  stopped  and  started  by 
plaintiff  on  signal,  and  it  was  his  duty  to  oil 
the  machinery  connected  therewith,  and  keep 
It  In  running  order.  Power  was  delivered 
from  said  motor  through  a  number  of  cog- 
wheels In  close  proximity  thereto.  The  motor 
stqod  about  two  feet  above  the  platform  lead- 
ing to  it  The  machinery  and  motor  appear 
to  have  been  practically  unapproachable  on 
three  sides.  They  could  be  approached  by  a 
platform  on  the  fourth  side,  which  platform 
was  used  by  the  operator  In  oiling  the  ma- 
chinery. The  gearings  were  In  line  with  the 
platform.  There  was  a  railing,  made  of 
scantling,  nearly  three  feet  In  height  near 
the  end  of  the  platform,  and  in  close  prox- 
imity to  the  motor.  There  were  boxes  in  the 
bearings  for  the  purpose  of  oiling  them.  The 
gearing  In  which  plaintiff  was  hurt  was  in 
the  neighborhood  of  three  feet  from  the  top 
of  the  railing  in  a  downward  and  westerly 
direction  from  such  railing.  It  was  neces- 
sary for  plaintiff  In  oiling  the  bearings  In 
question  to  lean  over  the  railing,  and,  owing 
to  the  prevalence  of  coal  dust,  it  appeared 
to  be  necessary  for  the  oiler  at  times  to  bend 


•ror  otner  casM  see  saoM  topic  and  section  NUMBER  In  Dec.  A  Am.  Digs.  U07  to  data,  A  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


1068 


122  NOBTHWBSTBBN  BOPOBTEB. 


(Wis. 


over  some  distance  so  as  to  bring  his  eyes  In 
doee  proximity  to  the  oil  cups  to  enable  blm 
to  see  them.  Wblle  plaintiff  was  leaning 
over  such  railing,  his  sleeve  was  caught  In 
one  of  the  gearings,  and  he  was  dragged  over 
the  railing  and  into  the  machinery,  and  bad- 
ly Injured.  The  alleged  negligence  ot  the  de- 
fendant consisted  in  its  failure  to  cover  the 
gearings  in  which  plaintiff  was  hurt  The 
Jury  found  (1)  that  the  machinery  in  which 
plaintiff  was  Injured  was  so  located  as  to  be 
dangerous  to  employ^  in  the  discharge  of 
their  duties;  (2)  that  the  defendant  failed 
to  have  the  machinery  securely  guarded  or 
fenced ;  (3)  that  the  failure  to  securely  guard 
or  fence  was  the  proximate  cause  ot  plain- 
tUTs  injury;  (4)  that  the  plaintiff  was  not 
guilty  of  any  want  of  ordinary  care  which 
contributed  to  produce  his  injury;  (6)  that 
the  plaintiff  sustained  damages  to  the  amount 
ot  $14,600  by  reason  of  his  Injury.  On  such 
verdict  Judgment  was  rendered  in  favor  of 
plaintiff. 

Solon  L;  Perrln  (A.  E.  Boyesen  and  P.  3. 
IflcLanghlin,  of  counsel),  for  appellant  W. 
P.  Crawford,  for  respondent 

BARNES,  J.  (after  stating  the  facts  as 
above).  The  appellant  assigns  as  error:  (1) 
The  refusal  ot  the  court  to  give  certain  in- 
structions which  were  requested;  (2)  the 
charge  of  the  court  under  the  first  question 
in  the  special  verdict ;  (3)  failure  of  the  court 
to  give  any  charge  in  relation  to  the  second 
question  in  the  special  verdict;  (4)  giving  an 
erroneous  definition  of  proximate  cause ;  (5) 
receiving  Incompetent  testimony  prejudicial 
to  the  defendant ;  (6)  prejudicial  and  Improp- 
er remarks  made  to  the  Jury  by  plaintiff's 
counsel ;  (7)  refusal  of  the  court  to  direct  a 
verdict  in  defendant's  favor  (a)  because  the 
gearing  upon  which  plaintiff  was  Injured  was 
sufficiently  guarded  or  fenced,  and  (b)  be- 
cause the  plaintiff  was  guilty  of  contribu- 
tory negligence;  (8)  refusal  to  set  aside  the 
verdict  because  the  damages  assessed  were 
excessive. 

1.  No  exception  was  taken  to  the  refusal 
of  the  court  to  give  the  Instructions  request- 
ed; hence  the  rulings  of  the  trial  Judge  In 
this  regard  cannot  be  considered  in  this 
court 

2.  By  the  first  question  in  the  special  ver- 
dict the  Jury  was  asked :  "Was  the  machin- 
ery in  which  plaintiff  was  injured  so  locat- 
ed as  to  be  dangerous  to  employes  in  the 
discharge  of  their  duties?"  The  court  charg- 
ed the  Jury:  "In  answering  this  question, 
you  will  consider,  among  other  things,  the 
location  of  the  machinery  in  question  with 
reference  to  where  It  became  reasonably  nec- 
essary for  employes  to  be  situated  or  placed 
In  the  discharge  of  their  duties  In  and  about 
It,  and  Its  situation  and  surroundings  as 
shown  by  the  evidence."  The  criticism  upon 
the  charge  Is  the  use  of  the  words  "among 
other  things";  it  being  urged  that  the  in- 
struction permitted  the  Jury  to  consider  mat- 


ters outside  of  the  evidence.  In  answering 
the  question  there  were  a  number  of  things 
that  the  Jury  might  very  properly  have  con- 
sidered aside  from  the  specific  ones  men- 
tioned by  the  court,  as,  for  instance,  the 
height  of  the  railing,  its  proximity  to  the 
gearing,  and  the  extent  to  which  the  vision 
was  obscured  by  coal  dust  ss  well  as  other 
items  of  evidence.  Presumably  the  Jury  un- 
derstood that  the  "other  things"  they  mls^t 
consider  should  be  restricted  to  such  things 
as  were  shown  by  the  evidence.  In  the  ab- 
sence of  a  request  to  charge  tliat  extraneous 
matters  should  be  excluded  from  considera- 
tion, we  do  not  think  any  prejadiclal  error 
was  committed  If  It  be  conceded  that  the 
language  used  was  not  as  guarded  as  it  mlg^t 
have  been. 

3.  No  request  was  made  upon  the  court  to 
give  any  charge  in  relation  to  the  second 
question  In  the  special  verdict.  In  the  ab- 
sence of  such  request,  no  error  resulted. 
Newton  v.  Whituey,  77  Wis.  515,  46  N.  W. 
882.  Moreover,  we  do  not  find  any  excep- 
tion in  the  record  to  raise  this  question. 

4.  The  definition  of  "proxlmitte  cause"  giv- 
en by  the  court  was  taken  verbatim  from  Dei- 
senrieter  v.  Kraus-Merkel  Malting  Co.,  97 
Wis.  279,  288,  72  N.  W.  736,  which  definition 
Is  approved  In  Feldsclinelder  v.  C,  M.  &  St 
P.  By.  Co.,  122  Wis.  428,  431,  99  N.  W.  1034. 
and  in  other  cases,  and  it  Is  undoubtedly  one 
that  is  very  generally  given  by  trial  courts. 
It  is  probable  that  counsel  could  Improve  on 
this  definition,  but  it  has  been  so  often  laid 
down  for  the  guidance  of  trial  courts,  and 
they  have  been  so  frequently  admonished  to 
fqllow  It  that  it  would  hardly  be  consistent 
to  hold  that  error  resulted  from  so  doing. 

5.  It  Is  urged  that  the  court  erred  in  re- 
ceiving testimony  tending  to  show  how  oth- 
er servants  ot  the  defendant  oiled  the  ma- 
chine prior  to  the  plaintiff's  employment 
where  they  stood  when  oiling  It,  the  condi- 
tion of  the  light  at  the  time  of  the  Injury, 
and  the  fact  that  the  gearings  were  uncov- 
ered. It  was  competent  for  the  plaintiff  to 
show  on  the  Issue  of  contributory  negli- 
gence any  pertinent  facts  tending  to  estab- 
lish ordinary  care  on  his  part  The  fact 
that  he  oiled  the  mactilnery  in  the  usual, 
customary,  and  ordinary  way  could  best  be 
established  by  showing  bow  others  had 
done  the  same  work,  and  we  think  the  tes- 
timony was  not  Incompetent  Dr.  Sarazin 
was  permitted  to  testify  under  objection 
that  assuming  the  statement  of  the  plain- 
tiff to  be  true  as  to  his  condition,  he  thought 
there  was  dead  bone  in  the  ribs,  and  that  an 
operation  to  remove  the  same  would  be  nec- 
essary, and  that  such  removal  would  weak- 
en the  side.  It  is  urged  that  the  doctor  had 
made  no  sufficient  examination,  and  had  no 
sufficient  Informaticn  concerning  the  plain- 
tiff's condition  to  qualify  him  to  give  the 
testimony  complained  of.  The  evidence  was 
based  on  the  statement  made  by  the  plain- 
tiff on  the  witness  stand  aa  to  bis  condi- 


Digitized  by 


L-oogle 


Wlfc) 


MONAGHAN  t.  NOBTHWSSTEBN  FUEL  CX>. 


1069 


tlon,  and  npm  an  examination  made  by  the 
wltneaa  after  the  Injury.  The  eyldence  was 
competent,  even  though  It  might  not  have 
been  convincing.  The  weight  to  be  accord- 
ed to  It  was  for  the  Jnry  to  pass  ninm. 

6.  The  plaintiff  i»'oduced  a  model  on  the 
trial  TTblch  the  court  refused  to  receive  in 
evidence  because  it  was  not  correct  In  bis 
argument  to  the  Jury  plaintiff's  counsel  stat- 
ed. In  substance,  that  the  reason  why  de- 
fendant did  not  produce  a  model  was  that, 
If  one  had  been  produced,  It  would  have 
been  more  unfavorable  to  It  than  that  made 
by  plaintiff.  Exception  was  taken  to  such 
remarks.  The  court  charged  the  Jnry:  "No 
inference  adverse  to  the  defendant  should  be 
drawn  from  the  argument  of  plaintiff's  coun- 
sel, except  in  so  far  as  that  argument  Is 
based  on  testimony.''  In  view  of  this  In- 
struction and  of  the  nature  of  the  remarks 
and  the  piobable  cause  of  their  being  made, 
no  error  resulted. 

7.  It  Is  argued  with  much  force  that  this 
court  should  say  as  a  matter  of  law  that  the 
machinery  In  question  was  sufficiently  fenc- 
ed or  guarded,  and  that,  therefore,  no  negli- 
gaioo  or  toeach  of  statutory  dnty  was 
shown  on  the  part  of  the  defendant,  and 
also  that  plaintiff  was  guilty  of  contributory 
negligence.  These  are  the  principal  conten- 
tions relied  on  for  a  reversal  of  the  Judg- 
ment. Had  the  injury  happened  to  some 
employ^  who  had  no  duty  to  perform  about 
the  machinery  in  question,  the  argument 
that  plaintifl  had  compiled  with  its  statuto- 
ry dnty  to  sufficiently  foice  or  guard  this 
machinery  would  be  convincing.  The  bar- 
rier was  nearly  three  feet  high,  and  was 
substantial.  But  what  might  be  a  proper 
and  sufficient  safeguard  for  the  ordinary 
employ^  might  not  be  so  for  the  plaintiff, 
who  in  the  i)erformance  of  his  duties  was 
obliged  to  lean  over  the  barrier  and  bring 
his  hands  and  other  parts  of  his  body  in 
close  proximity  to  rapidly  revolving  gear- 
ings. The  plaintiff  was  as  much  entitled  to 
have  these  gearings  securely  guarded  or 
teacei  for  his  safety  as  were  other  em- 
ployes. Manifestly,  a  covering  over  the 
gearings  in  his  case  would  perform  a  func- 
tion which  a  mere  fence  or  barrier  would 
not  There  was  no  attempt  to  show  that  it 
was  impracticable  to  cover  such  gearings 
without  s^ously  Impairing  the  efficiency 
and  use  of  the  machinery,  and  we  think  the 
qnestlon  of  defendant's  failure  to  sufficiently 
fence  or  gnard  the  gearings  in  question  un- 
der the  facts  of  this  case  was  fairly  one  for 
the  Jnry  to  pass  upon.  If  we  eliminate  from 
the  defense  of  contributory  negligence  the 
fact  that  plaintiff  contlnned  in  bis  employ- 
ment a  period  of  11  months  knowing  its 
dangerous  character,  there  is  nothing  to  be 
found  In  the  evidence  that  would  warrant 
a  coort  in  holding  as  a  matter  of  law  that 
plaintiff  could  not  recover  because  he  was 
shown  to  be  guilty  of  contributory  negli- 
gence.    Section  1636JJ,  Sanborn's  St  Supp. 


1906,  provides  that  the  fact  that  an  employ^ 
remains  in  an  employment  with  knowledge 
that  the  employer  has  not  aufficiently  guard- 
ed or  fenced  dangerous  machinery  shall  not 
operate  as  a  defense  to  such  an  action  as  la 
here  brought  This  statute  has  eliminated 
assumption  of  hazard  from  the  defense  of 
contributCHry  negligence  in  the  class  of  cases 
to  which  it  ia  applicable.  Klotz  v.  Power 
&  Mining  M.  Co.,  136  Wis.  107,  109,  116  N. 
W.  770,  17  li.  E.  A.  (N.  S.)  904;  Llnd  v. 
Uniform  Stave  &  Package  Co.  (Wis.)  120 
N.  W.  839.  We  perceive  no  error  in  sub- 
mitting to  the  Jury  for  consideration  the 
question  of  negligence  on  the  part  of  the 
defendant  and  want  of  ordinary  care  on  the 
part  of  the  plaintiff. 

8.  The  plaintiff  was  43  years  old  at  the 
time  of  his  injury,  and  was  earning  $2.75 
per  day.  Such  Injury  necessitated  the  am- 
putation of  his  left  arm  close  to  the  shoul- 
der. His  nose  was  broken,  and  the  injuries 
to  his  face  have  resulted  in  dlsflgure'ment 
Three  of  his  ribs  were  fractured,  and  Ills 
side  was  badly  lacerated,  aud  had  not  en- 
tirely healed  at  the  time  of  the  trial.  There 
was  some  testimony  given  tending  to  show 
that  the  injury  to  the  side  is  permanent,  al- 
though such  evidence  is  of  an  unsatisfactory 
character.  The  appellant  urges  tliat  the 
damages  awarded  as  compensation  for  th« 
injuries  detailed  are  excessive,  and  should 
be  reduced.  In  view  of  the  deference  that 
should  be  paid  to  the  finding  of  a  Jury  on 
this  as  well  as  on  other  questions  of  fact 
and  because  the  trial  court  who  heard  the 
testimony  refused  to  say  that  the  verdict 
was  excessive,  this  court  does  not  feel  war- 
ranted In  disturbing  it  The  writer  does  not 
concur  in  this  conclusion,  and  thinks  that 
the  plaintiff  should  be  required  to  remit  a 
substantial  sum  from  the  Judgment  or  to 
submit  to  a  new  trial.  This  view  is  con- 
curred in  by  Justices  MARSELAI4L  and 
DOD6B. 

Judgment  affirmed. 

MARSHALL,  J.  (dissenting  in  part).  As 
Indicated  in  the  court's  opinion  I  concur  with 
the  writer  thereof  and  Mr.  Justice  DODOB 
that  the  verdict  la  excessive.  I  apprehend 
that  if  we  were  permitted  to  appraise  the 
damages  as  an  original  matter  they  would  not 
reach  near  the  Jury's  figure.  The  idea  pre- 
vails that  this  court  should  not  in  any  case, 
reverse  the  trial  determination  on  such  a 
question  unless  the  verdict  appears  so  out 
of  all  reason,  as  to  indicate,  dearly,  that 
there  was  passion  or  prejudice  or  perversity 
of  some  sort  in  reaching  the  result 

If  I  were  to  treat  the  subject  here  accord- 
ing to  the  stated  prevailing  view,  and  it 
must  be  conceded  there  Is  support  for  sudi 
view  in  the  decisions  of  this  court  I  would 
say  the  recovery  Is  so  large  as  to  leave  the 
suggested  fatal  characteristic  clearly  infer- 
able. 

How  are  we  to  determine  that  the  Jury  in 


Digitized  by  LjOOQ  IC 


1070 


122  NORTHWESTERN  REPORTER. 


CWIB. 


such  a  case  were  actnated  by  passion  or 
prejudice?  Manifestly,  not  necessarily,  by 
seeking  to  dlscovo:  whether  they  acted  hon- 
estly. Godfrey  v.  Godfrey,  127  Wis.  47,  106 
N.  W.  814.  A  person  may  be  moved  by  pas- 
sion or  prejudice  to  do  or  not  to  do  a  partic- 
ular thing  and  yet  be  free  from  the  slightest 
taint  of  moral  or  legal  tnrpltude.  We  can- 
not determine  wbethM'  a  jory  were  actuated 
by  passion  or  prejudice  by  considering  what 
amount  of  money  a  person  would  take  as  a 
fair  eqnlyalent  for  an  arm,  other  disable- 
ments, pain  caused  thereby  and  Impaired 
ability  to  work  and  the  future  loss  In  that 
regard  he  will  be  reasonably  certain  to  suffer 
— ^In  case  he  were  given  opportunity  to  make 
such  exchange  by  treaty.  We  cannot  deter- 
mine the  matter  by  the  ability  of  the  wrong- 
doer to  respond  In  damages.  The  theory  of 
the  law  is  compensation.  The  damages  would 
not  be  greater  If  caused  by  Inadvertence  of 
an  Individual  of  means  so  small  that  the 
amount  for  a  single  accident  would  be  de- 
struction, In  that  It  would  cast  the  defendant 
into  bankruptcy,  than  If  caused  by  one  of 
great  wealth.  The  subject  has  a  deep  practi- 
cal common  sense  side.  Every  industrial  ac- 
cident whether  caused  by  negligence  of  em- 
ployer or  employs  or  of  both,  or  without  the 
Inadvertence  of  any  one,  Involves  a  sacrifice 
upon  Industry's  altar  which  must.  Inevitably, 
In  the  end,  be  cast  upon  the  consumers  of 
the  products  of  Industry.  Pity  'tis  that 
these  inevitable  sacrifices  which  fall  first 
upon  the  weakest  members  of  society;  those 
who  work  and  must  work  within  the  zone 
of  danger,  and  not  reach  the  final  resting 
place  by  absorption  Into  the  general  cost  of 
living  of  the  whole  mass  who  are  directly 
or  Indirectly  served  by  the  Industry  from 
which,  from  time  to  time,  such  distressing 
incidents  must  spring,  without  the  waste  and 
injustice  of  the  present  system,  which  re- 
pairs to  some  extent  primary  losses  In  a  part 
only  of  the  Instances,  leaving  the  others  with- 
out any  remedy  at  all. 

Under  our  defective  and  lamentably  im- 
perfect system  in  assessing  damages  the  ques- 
tion. In  reality,  Is  not  what  Is  a  full  equiva- 
lent for  the  Injuries  In  the  general  sense,  i.  e., 
what  would  one  take  In  money  to  repair  the 
injuries,  but  what  Is  a  reasonable  reparation 
under  all  the  circumstances.  How  much  for 
the  mere  inadvertence  causing  the  loss,  con- 
sidering all  interested,  the  employer  who  re- 
quired the  service  In  order  to  carry  on  his 
business,  the  employe  who  needed  the  em- 
ployment and  the  great  consuming  public 
which  needed  the  combined  service  of  em- 
ployer and  employe,  should  the  latter  have  as 
an  equivalent  for  those  elements  of  loss 
which  are  not  measured  by  any  standard  of 
comparison?  That  presents  a  practical  ques- 
tion to  be  solved  by  sound  judgment 

There  Is  no  market  value  for  pain  and  suf- 
fering and  parts  of  the  human  body.  What 
sum  of  money  would  one  take  in  exchange 
for  an  arm  or  a  leg  or  an  eye?    Who  can 


Bay  with  any  degree  of  certainty  what  such 
things  are  worth?  Who  can  say  with  that 
degree  of  certainty  ordinarily  necessary  for 
a  verdict?  No  sum  of  money  can  be  named 
as  the  full  equivalent  for  the  severe  mutila- 
tion of  one's  body.  Tlie  whole  idea  of  a 
full  money  equivalent  contemplates  an  im- 
possibility. All  courts  really  recognize  that 
in  their  declared  helplessness  to  deal  with  de- 
structive verdicts.  The  real  idea  after  all 
is  that  he  who  by  breach  of  duty  Involving 
actionable  Inadvertence,  Injures  another  In 
his  person  should,  as  a  penalty  so  to  speak, 
make  good  to  such  other  reasonably  his  loss. 
The  fault  in  such  a  case  Is  not  crlmlnaL  If 
It  were  even  of  that  high  degree  the  law 
wonld  not,  as  a  rule,  punish  destructively. 
Mere  Inadvertence  causing  personal  injuries 
are  misfortunes  attributable  to  human  in- 
firmity;  never  to  human  Intention. 

The  foregoing  suggests  as  before  stated, 
that  the  assessment  of  damages  In  a  case  of 
this  sort  presents  a  practical  question  to  be 
solved  by  sound  judgment  not  necessarily 
involving  an  exchSnge  of  equivalents  on  a 
money  basis. 

Does  It  not  seem  that  tested  by  such  Judg- 
ment an  injury,  which,  though  severe.  Is  so 
repaired  by  nature  as  to  leave  the  afflicted 
one  sound  In  mind  and  body  to  a  large  degree 
and  capable  of  engaging  in  gainful  occupa- 
tions, should  not  be  compensated  to  an  ex- 
tent which  will  yield  him  more  than  bis  pre- 
vious customary  income  for  life  and  leave  at 
the  end  a  fortune  far  in  excess  of  what  the 
average  of  his  class  ordinarily  accumulates 
during  a  life  of  Industry?  Sucb  an  award 
by  the  jury,  it  seems,  evidences  passion  or 
prejudice,  assuming  as  we  must,  that  they 
had  a  proper  conception  of  the  basis  (or 
measuring  such  losses. 

We  may  well  claim  that  the  numerons 
laws,  world  wide,  for  repairing  personal  in- 
dustrial injuries,  accurately  portrays  the 
highest  wisdom  of  our  time  In  the  light  of 
generations  of  study  and  experience.  By  no 
one  of  such  laws  are  such  accidents  regarded 
as  justly  entitling  the  Injured  one  to  com- 
pensation on  the  basis  embodied  in  the  ver- 
dict here.  All  are  grounded  on  the  Idea  of 
what  an  Industry  should  reasonably  contrib- 
ute, vmiet  all  the  drcnmstances  to  repair 
such  unintentional  injuries,  the  full  money 
equivalent  being  regarded  as  Impossible  of 
ascertainment  and  Impracticable  of  being  ren- 
dered. 

There  is  another  side  wbich  I  take  this  op- 
portunity of  discussing.  The  practice  of  set- 
ting aside  verdicts  and  granting  new  trials 
to  prevent  a  miscarriage  of  justice  Is  a  de- 
velopment from  the  judicial  experience  of 
ages.  By  the  early  common  law  It  Is  prob- 
able there  was  no  such  practice.  In  time 
courts  came  to  grant  new  trials  whenever  it 
appeared,  clearly,  that  otherwise  Injustice 
would  be  done.  Later  the  practice  came  to 
be  governed  by  pretty  well  defined  rules. 
One  of  them  was  that  a  verdict  assessing 


Digitized  by  VjOOQ  l€ 


wit.) 


MONAGHAN  v.  NORTHWESTERN  FUEL  00. 


1071 


damages  In  a  case  of  this  sort  would  not  be 
set  aside  as  excessive  unless  It  appeared  that 
the  Jury  were  actuated  by  passion  or  prej- 
udice. It  was  common  to  raise  the  question 
on  a  motion  to  set  aside  the  verdict  as  con- 
trary to  the  evidence.  In  many  Jurisdic- 
tions that  particular  ground  for  a  new  trial 
has  been  carried  Into  the  Code  by  a  provision 
for  a  new  trial  In  case  of  "excessive  dam- 
ages appearing  to  have  been  given  under  the 
Influence  of  passion  and  prejudice."  That 
phrasing  is  found  in  most  codes.  14  Ency, 
P.  &  P.  7S9.    Ours  is  one  of  the  exceptions. 

In  some  Jurisdictions  the  particular  ground 
for  a  new  trial  above  mentioned  is  held  to 
be  included  in  the  one  that  the  verdict  is 
"contrary  to  the  evidence."  Our  section  2878, 
St  1888,  has  such  ground,  and  as  before  in- 
dicated, no  such  ground  as  excessiveness  of 
damages  under  the  influence  of  passion  or 
prejudice.  Since  such  precise  common-law 
ground  falling  under  the  general  scope  as 
stated  was  not  taken  out  of  it  and  made 
one  by  Itself,  as  is  commonly  done.  It  seems 
onr  code-makers  intended  the  scope  of  the 
general  common-law  ground  as  incorporated 
into  the  statute  (section  2878,  St  18UU), 
should  remain  as  before. 

That  a  motion  to  set  aside  a  verdict  as 
contrary  to  the  evidence  is  broad  enough 
under  the  Code  to  Include  improper  assess- 
ments of  damages  through  passion  or  prej- 
udice or  other  i>erver8ity  was  early  held  in 
Emmons  v.  Sheldon,  28  Wis.  648.  The  court 
dealt  with  an  inadequate  verdict  evincing 
passion  or  prejudice.  It  was  held,  on  the 
ground  of  Inadequacy  evincing  Ignorance  or 
perversity,  to  be  contrary  to  the  evidence; 
Our  Oode  did  not  at  first  provide  for  grant- 
ing a  new  trial  for  inadequacy  of  the  verdict 
The  case  cited  was  followed  In  Robinson  v. 
Town  of  Waupaca,  77  Wis.  644,  546,  46  N, 
W.  809,  and  Whitney  v.  Milwaukee,  66  Wis. 
409,  27  N.  W.  89. 

I  am  not  unmindful  that  ttiis  court  has 
said  a  verdict  cannot  be  successfully  chal- 
lenged on  appeal  for  excessiveness  In  the  ab- 
sence of  a  motion  In  the  trial  court  on  that 
precise  ground.  Sloteman  y.  Thomas  & 
Wentworth  Mfg.  Co.,  69  Wis.  499,  S4  N.  W. 
226;  Collins  v.  JanesvUle,  99  Wis.  464,  76 
N.  W.  88;  Howard  v.  BeldenviUe  Lumber 
Co.,  134  Wis.  644,  114  N.  W.  1114;  Duffy  v. 
Radke  (Wis.)  119  N.  W.  811.  But  in  such  in- 
stances  a  distinction  was  not  drawn  between 
mere  excessiveness  and  excessiveness  through 
passion  or  prejudice.  The  former,  it  seems. 
Is  within  the  special  statutory  ground  of 
fatal  excessiveness,  if  not  all  such  ground 
contemplates.  I  am  inclined  to  the  belief 
that  It  is  the  latter;  that  the  code-makers 
used  the  term  "contrary  to  the  evidence"  in 
the  same  sense  it  had  formerly  been  used, 
I.  e.,  as  including  excessiveness  through  pas- 
sion or  prejudice  or  perversity  of  some  sort 
and  to  add  a  new  ground  covering  cases  of 
mere  excessiveness,  and  so  the  words 
"through  passion  or  prejudice,"  or  similar 


words  foimd  in  most  codes,  were  omitted 
from  ours. 

The  idea  early  advanced  by  this  court  as 
stated,  that  a  motion  to  set  aside  a  verdict 
on  the  ground  of  its  being  characterized  by 
passion  or  prejudice  is  found  in  the  deci- 
sions of  many  states,  as  indicated  in  14 
Ency.  P.  &  P.  766,  note  1.  Many  autliorities 
deal  with  Inadequate  verdicts,  but  it  is  hard- 
ly logical  to  say  a  verdict  characterized  by 
passion  or  prejudice  is  contrary  to  the  evi- 
dence where  it  is  too  small  and  not  where 
it  Is  too  large. 

I  am  constrained  to  believe  the  practice 
has  fallen  somewhat  Into  confusion  by  fail- 
ure to  distinguish  between  a  perverse  ver- 
dict rellevable  from  at  common  law,  and 
under  the  statute  by  motion  to  set  aside  as 
contrary  to  the  evidence,  and  a  merely  ex- 
cessive verdict,  made  by  the  Code  a  separate 
and  Independent  ground  for  a  new  trial,  one 
unknown  at  common  law. 

While  there  are  decisions  of  this  court  to 
the  eflFect  that  to  warrant  granting  a  new 
trial  because  the  verdict  is  too  large  It  must 
satisfactorily  appear  that  it  is  the  product 
of  passion  or  prejudice,  there  are  others 
where  relief  was  granted,  passion  or  preju- 
dice not  being  suggested,  and  still  others 
where  the  verdict  was  very  materially  re- 
duced as  excessive  and  the  Jury  at  the  same 
time  were  expressly  acquitted  of  any  fault 
other  than  mere  error  of  Judgment.  Such 
was  Baker  v.  City  of  Madison,  62  Wis.  137, 
22  N.  W.  141,  583.  A  verdict  for  16,000  was 
condemned  as  excessive,  the  plaintiff  being 
permitted  at  his  option  to  take  judgment 
for  $3,600.  It  was  contended  that  the  court 
could  not  reverse  for  excessiveness,  unless 
the  damages  seemed  "flagrantly  outrageous," 
so  excessive  as  to  lead  to  the  conclusion  that 
the  jury  were  actuated  by  "passion  or  preju- 
dice." Ancient  common-law  cases  and  de- 
cisions from  other  JurlsdlctionB,  with  some 
cases,  decided  by  this  court  not  dealing  with 
the  Code  on  the  question,  were  relied  on. 
Relief  was  granted  notwithstanding,  as  said 
In  the  opinion  of  the  court  that  the  verdict 
was  "not  so  large  as  to  cause  the  inference 
that  the  Jury  were  controlled  or  influenced 
by  passion,  prejudice  or  bias  or  any  im- 
proper motive." 

In  Murray  v.  Buell,  74  Wis.  14,  17,  41  N. 
W.  1010,  the  impression  is  given  that  the 
element  of  passion  or  prejudice  may  be  ab- 
sent and  the  verdict  yet  be  set  aside  as  ex- 
cessive. In  somewhat  contradictory  lan- 
guage the  court  made  the  suggestion,  but 
said  It  was  unnecessary  to  pass  upon  the 
matter. 

In  Heddles  v.  Ch.  &  N.  W.  Ry.  Co.,  74 
Wis.  239,  259,  42  N.  W.  237,  the  verdict  was 
set  aside  because  of  mere  misconception 
of  duty,  misdirection  of  the  court  passion  or 
prejudice,  again  suggesting  that  mere  want 
of  reasonable  judgment  is  suflScient 

The  field  I  have  discussed  is  very  broad 
and  very  Important  to  the  administration 


Digitized  by  LjOOQ  l€ 


1072 


122  NOBTHWBSIEBN  REPORTER. 


(Wll. 


<;>f  Justice.  It  would  require  a  very,  lengthy 
opinion  to  review  all  cases  In  this  court  and 
those  elsewhere  under  Codes  similar  to  ours, 
and  demonstrate  that  our  Code  provision  for 
a  new  trial  for  excessiveness  of  the  verdict 
Includes  want  of  Judgment  on  the  part  of 
the  Jury,  and  excludes  excesslveness  because 
of  passion  or  prejudice  or  perversity  of  any 
kind,  that  falling  under  the  general  head  of 
contrary  to  the  evidence.  That  was  so  held 
In  Beavers  v.  Missouri  Pacific  Ry.  Co.,  47 
Keb.  781,  66  N.  W.  821,  under  a  similar  stat- 
ute. It  is  otherwise  held  in  California  be- 
cause the  Code  there  contains  a  ground  for 
a  new  trial,  as  follows:  "fi^xcesSlve  dam- 
ages appearing  to  have  been  given  under  the 
Influence  of  passion  or  prejudice."  It  Is  also 
so  held  In  Minnesota,  but  the  Code  pifovislon 
there  is  as  follows:  "Excessive  or  Insuffi- 
cient damages  appearing  to  have  been  given 
under  the  influence  of  passion  or  prejudice." 
Note  that  the  language  here  is  "for  exces- 
sive and  inadequate  damages." 

True,  In  many  Jurisdictions  a  similar  Code 
provision  is  held  not  to  cover  cases  where 
there  is  no  rule  for  estimating  damages,  so 
that  the  recoverable  amount  must  rest  rath- 
er In  mere  Judgment  than  calculation.  But 
in  such  Jurisdictions  it  is  held,  in  general, 
that  excesslveness  through  passion  or  preju- 
dice falls  under  the  dassiflcatlon  of  "con- 
trary to  the  evidence,"  while,  as  we  have 
seen  by  Baker  v.  City  of  Madison,  supra,  and 
others  of  our  cases,  verdicts  here  have  been 
disturbed  on  the  ground  of  mere  excesslve- 
ness in  instances  of  this  sort  and  of  inade- 
quacy, as  well,  produced  by  passion,  preju- 
dice or  some  other  improper  motive,  under 
the  special  ground  quoted. 

Does  it  not  appear  quite  plain  that  our 
code-makers  did  not  contemplate  cases  of 
Improper  verdicts  relievable  from  under  the 
genera]  head  of  "contrary  to  the  evidence" 
In  adding  the  particular  ground:  "For  ex- 
cessive or  Inadequate  damages,"  and  that, 
misled  by  the  common-law  rules  that  a  ver- 


dict should  not  be  set  aside  for  excesslveness 
imless  characterized  by  passion  or  prejudice, 
and  decisions  elsewhere  under  a  specific 
code  provision  on  the  subject,  the  ^oit  of 
our  lawmakers  to  enlarge  the  grounds  for 
relief  from  unjust  recoveries  has  not  been 
realized. 

Viewing  the  case  as  indicated,  tliat  it  is 
competent  to  deal  with  the  verdict  upon  the 
ground  of  Its  being  excessive  regardless  of 
passion  or  prejudice  or  perversity  or  any 
Improper  motive;  merely  because  it  is  dear- 
ly too  much — more  than  in  reason  can  lie 
Justified — I  cannot  escape  the  conclusion  that 
Justice  requires  plaintiff  to  take  less  by  at 
least  three  or  four  thousand  dollars.  I 
should  so  conclude  under  the  severe  rule 
which  need  not  be  applied,  as  we  have  seen. 
I  assume  the  court  would  condemn  the  re- 
covery except  for  the  thought  that  it  cannot 
be  done  without  condemning  the  Jury  as 
having  acted  from  some  Improper  motive. 
I  cannot  think  our  Judicial  machinery  is  im- 
potent to  do  Justice  between  man  and  man 
in  such  a  case  without  so  first  condemning 
the  Jury.  If  a  verdict  Is  too  large  it  is  as 
unjust  to  the  appellant  if  honestly  rendered, 
or  rendered  without  any  Improper  infinence 
as  if  it  were  otherwise  too  large.  It  is  the 
unwarranted  size  of  the  verdict  which  does 
the  mischief,  not  the  cause  of  excesslveness. 

In  the  foregoing  I  have  not  lost  sight  oC 
the  fact  that  the  court  cannot  properly  sub- 
stitute its  Judgment  for  that  of  the  Jury. 
Ordinarily  the  collective  Judgment  of  twelve 
Jurymen  on  such  a  subject  as  the  Just  com- 
pensation due  in  a  case  of  this  sort  is  safer 
than  that  of  any  Judge,  or  perhaps  a  bench 
of  Judges.  Bat  whether  a  Jury  exercised 
sound  Judgment,  tested  by  whether  the 
bounds  of  reason  were  plainly  overstepped, 
or  a  proper  conception  of  the  situation  was 
entertained,  as  well  as  whethw  the  result 
is  characterized  by  good  faith,  are  Judicial 
questions.  In  solving  such  the  court  doe* 
not  invade  the  province  of  the  Jury. 


Digitized  by 


Google 


MIdL) 


EDWARDS  V.  ENOADINB  LUMBER  CO. 


1073 


CONGER  y.  HAIXu 
(8opr«n«  Court  of  Michigan.    Nor.  5,  1909.) 

1.  Apfeai,  and  Ehbc»  (§  173*)  —  Qtjestionb 
Rbviewabub— Questions  Raised  in  Appel- 
late COTJHT. 

Where,  in  an  action  for  services,  there  was 
no  notice  of  the  defense  of  limitations  to  a  part 
of  the  claim,  and  the  defense  was  not  raised 
below,  it  could  not  be  raised  on  appeal. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {  1104;   Dec.  Dig.  j  173.*] 

2.  WOBK  AND  Labob  (|  27*)  —  Lectees— Ad- 

ICISSIBILITT. 

In  an  action  for  s^^ices  as  a  housekeeper 
for  a  series  of  years,  letters  written  before  the 
date  from  which  compensation  is  asked,  but  aft- 
er the  relation  began,  are  admissible,  where  they 
corroborate  the  testimony  of  one  of  the  parties. 

[Ed.  Note.— For  other  cases,  see  Work  and 
Labor,  Dec.  Dig.  (  27.*] 

8.  Appeal  and  Ebbob  (§  501*)— Questions 
Reviewable— Admission  of  Evidence. 
Under  Comp.  Laws  1897,  (  10,504,  provid- 
ing for  incorporating  the  record  of  proceedings 
bad  on  motions  for  new  trial  in  bills  of  excep- 
tions, where  exceptions  to  the  admission  of  testi- 
mony are  not  indexed  as  required  by  rule,  nor 
found  in  the  record,  the  objections  to  the  evi- 
dence are  not  reviewable,  though  made  grounds 
of  motion  for  new  trial. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  {{  2300-2305;    Dec.  Dig.  g 

Error  to  Circuit  Court,  Berrien  County; 
Orvllle  W.  CooUdge,  Judge. 

Action  by  Emma  Conger  against  Charles 
W,  Hall.  There  was  a  Judgment  for  plain- 
tiff, and  defendant  brings  error.    AfBrmed. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDER,  and  HOOK- 
ER, JJ. 

Cady  &  Andrews,  for  appellant  Gore  & 
Harvey,  for  appellee. 

HOOKER,  J.  The  plaintiff  claims  to  have 
been  defendant's  housekeeper  for  a  period  of 
nine  years,  or  thereabouts,  at  his  request,  and 
brought  this  action  to  recover  the  value  of 
sucb  service.  She  recovered  a  judgment, 
which  on  motion  for  new  trial  was  reduced 
to  12,700,  as  a  condition  for  the  denial  of 
that  motion.  The  defendant  has  brought  the 
cause  to  this  court  by  writ  of  error. 

The  defense  made  was  that  the  defendant 
was  a  boarder  at  an  agreed  price  of  $4  per 
week,  at  the  plaintiff's  home,  which  for  a 
portion  of  the  time  she  Is  alleged  to  have 
rented  of  defendant  at  an  agreed  price  of 
$7  per  week,  and  fbat  defendant  had  fully 
paid  for  said  board.  The  questions  that  we 
are  asked  to  review  are:  (1)  Was  a  portion 
of  plaintiff's  claim  barred  by  the  statute  of 
limitation?  (2)  Was  the  verdict  excessive? 
(3)  Was  defendant  prejudiced  by  the  admis- 
sion of  certain  testimony? 

1.  Statute  of  limitation:  It  is  claimed  that 
plaintiff  should  not  have  been  permitted  to 
recover  for  services  rendered  more  than  six 
years  before  the  action  was  commenced,  for 
the  reason  that  the  plaintiff's  claim  was  not  I 
n  mutual  and  open  account     Of  this  point 


it  Is  sufficient  to  say  that  no  notice  of  such 
a  defense  was  given,  and  we  are  unable  to 
find  that  It  was  raised  In  the  trial  court 

2.  Was  the  verdict  excessive?  The  verdict 
was  rendered  for  $3,480,  and  was  reduced 
to  $2,700.  In  view  of  the  services  rendered, 
we  cannot  say  that  the  compensation  allowed 
was  excessive,  and  In  this  connection  we 
may  add  that  the  letters  introduced  were 
competent  evidence,  corroborating  plalntilTs 
testimony  as  to  the  character  of  her  services. 
It  Is  contended  that,  as  these  letters  were 
all  written  before  January  1,  1899,  which  Is 
the  date  named  in  the  bill  of  particulars  as 
the  time  from  which  compensation  Is  asked 
In  this  action,  they  were  immaterial;  but  It 
Is  conceded  that  they  were  written  after  the 
relation  began,  and  are  therefore  admissible 
for  the  purpose  mentioned.  Furthermore,  as 
there  was  some  testimony  tending  to  show 
that  she  did  not  return  from  Chicago  until 
after  January  1,  1899,  the  letters  were  also 
admissible  upon  that  subject,  as  they  cor- 
roborate her  testimony  that  she  returned 
from  Chicago  and  was  living  with  plaintiff 
In  1898. 

3.  Testimony  claimed  to  have  been  erro- 
neously admitted:  Counsel  say  in  their  brief 
that  the  verdict  was  affected  by  prejudicial 
matters  that  were  not  admissible.  It  Is  stat- 
ed by  plaintiff's  counsel  in  their  brief  that 
no  exception  to  the  admission  of  testimony 
was  taken,  except  in  relation  to  the  letters 
hereinbefore  held  admissible.  We  find  no  ex- 
ceptions Indexed,  as  required  by  rule,  nor 
do  we  find  any  in  the  record;  neither  have 
defendant's  counsel  pointed  out  such  excep- 
tions. It  is  contended  that  they  are  review- 
able, notwithstanding  the  want  of  exceptions, 
inasmuch  as  they  have  been  made  grounds  of 
a  motion  for  new  trial.  We  do  not  so  con- 
strue the  statute.    Comp.  Laws,  {  10,504. 

We  find  no  error,  and  the  Judgment  Is 
affirmed. 


EDWARDS  V.  ENGADINB  LUMBER  00. 
(Supreme  Court  of  Michigan.    Nov.  5,  1009.) 

1.  Masteb  anp  Servant  (§  264*)— Injuries 
TO  Sebvant—Action— Issues  and  Proof. 

Where,  in  an  action  for  injuries  to  a  saw- 
mill employ^  by  a  log  rolling  from  the  deck  over 
certain  kickers  designed  to  hold  them  until  need- 
ed on  the  carriage,  the  declaration  alleged  that 
the  kickers  were  out  of  repair,  and  that  de- 
fendant had  permitted  them  to  remain  so  for 
six  weeks  up  to  the  (ime  of  the  injury,  evidence 
that  the  accident  was  caused  by  the  absence  of 
certain  weights  from  the  valve  stem,  by  which 
a  piston  working  the  kickers  was  operated,  was 
not  withm  the  issues.  . 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Cent  Dig.  §  865 ;   Dec.  Dig.  $  264.*] 

2.  Master  and   Servant  (8  265*)— Injuries 
to  Servant— Neolioence— Presumptions. 

Where,  in  an  action  for  injuries  to  a  saw- 
P''!  employ*  by  a  log  rolling  over  the  log-deck 
kicker  bars,  it  was  claimed  that  the  bars  wei-a 
defe<tive,  and  it  appeared  that  the  device  ni 
which  the  bars  were  a  part  was  a  proper  one. 


•For  other  eaaes  see  same  topic  and  Mction  NUMBER  In  Dec.  A  Am.  Digs.  1907  to  date,  *  Reporter  Indexea 

122N.W.-68  (    nnalP 

Digitized  by  VjOOy  It: 


1074 


122  NOBTHWESTBRN  REPORTER. 


(Mich. 


and  there  wai  no  evidence  that  It  had  been  be- 
fore (it  fault,  or  that  it  was  in  any  manner  in- 
firm, and  that,  yery  soon  before  plaintiff  was 
hurt,  the  apparatus  performed  its  function  in 
the  proper  manner,  negligence  was  not  shown 
by  the  mere  happening  of  the  accident. 

[Ed.  Note.— For  other  cases,  see  Master  and 
Servant,  Ont  Dig.  U  881,  808;  Dec.  Dig.  | 
265.»] 

Error  to  Circuit  Court,  Mackinac  County; 
Frank  Shepherd,  Judge. 

Action  by  James  Edwards  against  the  En- 
gadlne  Lumber  Company.  Judgment  for 
plaintiff,  and  defendant  brings  error.  Re- 
versed, and  new  trial  granted. 

Argued  before  OSTRANDER,  HOOKER; 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Horace  M.  Oren,  for  appellant  Cummls- 
key  &  Spencer,  for  appellee. 

OSTRANDER,  J.  It  is  certified  that  the 
record  contains  all  of  the  testimony.  De- 
fendant operated  a  sawmill.  In  the  mill,  in 
the  log  deck  upon  which  logs  were  placed 
in  position  to  be  taken  upon  the  carriage 
which  carried  them  to  the  saw,  was  an  ap- 
paratus consisting  of  a  horizontal  shaft 
parallel  with  the  log  carriage,  at  each  end 
of  which,  attached  to  It  -and  standing  above 
the  level  of  the  deck  and  of  the  skids,  was 
a  casting  designed  to  hold  a  log  In  position 
to  be  taken  upon  the  carriage,  and,  being  re- 
versed, to  propel  or  kick  the  log  towards  the 
carriage.  The  description  of  this  apparatus 
in  the  declaration  is  found  In  the  allegation 
that  defendant,  as  a  part  of  its  business, 
"maintained  and  operated  steam  kickers, 
which  said  steam  kickers  were  composed  of 
iron  arms,  situated  at  the  end  of  the  skids 
in  said  mill,  for  the  holding  of  logs  nearest 
the  carriage,  and  were  for  the  purpose  of 
stopping  logs  when  rolled  down  on  the  skids 
near  the  carriage,  and  when  required  to  kick 
or  roll  the  logs  onto  the  carriage ;  said  kick- 
ers being  worked  by  steam  power  and  oper- 
ated by  the  sawyer,  who  would  work  a  lever 
when  desiring  to  roll  or  kick  the  logs  from 
the  skldway  onto  the  carriage."  The  duty 
of  defendant  as  alleged  was:  "To  have  kept 
said  kickers  in  good  order  and  repair,  and 
especially  to  have  kept  the  said  kickers  in 
such  repair  that  when  a  log  was  rolled 
against  them  on  the  skid  that  said  kickers 
would  hold  said  log  from  rolling  toward  the 
carriage  or  carriage  track  until  desired,  or 
until  It  became  necessary  to  put  the  log  onto 
the  carriage.  And  it  became  and  was  the 
further  duty  of  said  defendant  to  have  kept 
said  kickers  In  such  repair  that,  when  a  log 
was  rolled  on  the  skidways  up  against  the 
kickers,  they  would  hold  the  log  until  the 
lever  was  operated  by  the  sawyer,  which 
would  cause  the  kickers  to  roll  the  log  onto 
the  carriage" — its  breach  of  duty:  "Yet  the 
said  defendant,  not  regarding  its  duty  in 
that  behalf,  negligently  and  carelessly  failed 
and  neglected  to  keep  said  kickers  in  good 
repair,  so  that  the  said  kickers  would  hold 
a  log,  when  rolled  up  against  them,  until 


they  were  operated  by  the  sawyer  to  throw 
or  kick  said  log  onto  the  carriage;  that  the 
said  defendant  negligently  and  carelessly 
permitted  said  kickers  to  become  out  of  re- 
pair, so  that  at  times,  when  a  log  was  rolled 
against  them,  they  would  allow  said  log  to 
roll  towards  the  carriage  or  carriage  track, 
without  the  sawyer  or  other  persons  having 
worked  the  lever;  and  that  the  said  defend- 
ant negligently  and  carelessly  suffered  and 
permitted  the  said  kickers  to  be  and  remain 
out  of  repair,  as  aforesaid,  for  a  long  space 
of  time,  to  wit,  six  weeks  and  upwards  at 
the  time  of  the  committing  of  the  grievances 
hereinafter  set  forth  atad  Immediately  pre- 
ceding thereto."  The  averment  of  the  man- 
ner in  which  the  injury  of  plaintiff  occurred 
1b:  "When  said  log  was  rolled  to  and  against 
the  kickers,  the  said  kickers,  being  so  out  of 
repair  as  aforesaid,  dropped  down  of  their 
own  accord,  and  allowed  said  log  to  roll  over 
said  kickers  with  great  force  and  rapidity, 
catching  plaintiff's  right  foot,  breaking  and 
crushing  the  bones  thereof,  and  by  reason 
thereof,"  etc. 

Plaintiff  was  an  employ6  of  defendant  27 
years  old,  and  experienced  in  the  work  of 
placing  the  logs  In  position  for  the  log  car- 
riage. He  testified:  "On  the  15th  day  of 
June  last  I  was  required  to  fill  the  vacancy 
upstairs  on  the  log  deck.  It  was  dose  to  4 
o'clock  in  the  afternoon  that  I  went  upstairs. 
I  went  up  there  to  work  on  the  deck  rolling 
the  log  down,  and  I  stood  at  the  end  of  it, 
and  I  see  it  strike  the  kickers,  and  I  went 
to  catch  it,  and  at  that  time  I  went  to  get 
out  of  the  road  of  it —  I  see  It  was  goins 
over,  and  the  carriage  was  going  to  catch  it, 
and  it  catched  my  foot  before  I  could  get 
out  of  the  way  from  it  The  log  was  struck 
by  the  carriage,  and  sort  of  drove  it  Inwards 
towards  me.  The  log  caught  my  foot  Q. 
You  say  you  saw  it  going  over  the  kickers? 
What  do  you  mean  by  that?  A.  Why,  It 
was  simply  going  over— the  kickers  wasn't 
going  to  hold  it  I  discovered  there  was 
something  wrong,  and  I  had  to  get  out  of  the 
road.  There  was  not  much  time  after  I  dis- 
covered there  was  something  wrong  until  the 
log  caught  my  foot;  it  was  all  done  In  an 
instant  *  *  •  I  never  knew  of  any  log 
going  over  those  kickers  before  that  time. 
I  never  knew  of  the  kickers  falling  to  hold 
the  logs  before  that  time.  I  had  never  been 
told  by  any  one  that  they  did  not  hold. 
•  •  •  The  logs  that  I  was  feeding  through 
when  I  started  to  work  in  the  mill  when 
It  was  rebuilt  varied  somewhat  in  size. 
There  would  be  some  quite  large  ones  and 
some  quite  small.  When  I  would  take  my 
cant  hook  and  start  to  roll  a  log  down,  if 
there  was  no  log  ahead  of  it,  it  would  ac- 
quire considerable  force  by  the  time  it  got 
down  to  the  kickers.  I  had  to  kind  of  look 
after  a  log  of  that  kind.  It  was  a  part  of 
my  duty  to  see  that  it  did  not  go  too  fast 
against  the  kicker.  I  knew  that  if  It  should 
happen  to  get  past  the  kicker  In  any  way. 


•ror  other  caa««  see  Mme  topic  and  nctton  NUMBER  In  Dec.  *  Am.  Diss.  IMn  to  da^,  * 

Digitized  by 


t.*c?s§rc 


IndezM 


Mich.) 


EDWARDS  v.  ENGADINE  LUMBER  CO. 


107S 


ma  the  carriage  was  moving  back  and  forth 
there>  that  it  might  be  hit  by  the  carriage. 
It  was  a  part  of  my  duty  to  be  careful  in 
respect  to  the  way  that  I  would  let  these 
logs  come  up  against  the  kicker.  If  there 
was  a  considerable  space,  clear  space  be- 
tween where  I  started  to  roll  the  log  and  the 
kicker,  it  would  be  my  duty  with  the  cant 
hook  to  kind  of  hold  the  log  back.  The  rea- 
son for  this  was  that  it  was  customary.  A 
fellow  would  naturally  do  it  I  knew  that 
that  moving  carriage  there,  if  it  happened 
to  go  over  the  kicker,  it  might  Injure  the 
men  on  the  carriage.  I  knew  there  might  be 
some  danger  of  the  log,  if  it  went  too  fast, 
going  over  the  kicker.  I  had  never  had  any 
experience  of  the  pressing  Of  the  kicker 
down,  still  I  kind  of  held  the  logs  back  and 
was  careful.  I  did  not  know  there  was  dan- 
ger of  pressing  the  kicker  down.  The  reason 
I  would  hold  the  logs  back  was  that  it  seem- 
ed to  be  custonury.  I  reasoned  it  out  that 
It  might  be  dangerous  to  the  men  on  the 
carriage  there.  •  *  •  I  handled  every 
kind  of  log  practically  that  went  through 
the  mill;  logs  of  all  sizes  and  all  kinds.  I 
got  to  be  in  my  own  Judgment  a  very  skill- 
ful deckman.  I  never  had  an  accident  I 
tlilnk  I  took  all  the  precautions  a  man  in 
my  position  should  take.  I  did  not  allow 
logs  to  go  too  hard  against  the  kicker,  and  I 
was  careful  to  hold  the  big  logs  back.  I  did 
allow  logs  to  be  rolled  against  the  kickers 
when  the  carriage  was  going  back  and  forth. 
I  was  careful  to  see  that  the  logs  came  down 
when  the  carriage  was  right  opposite  the 
declc  I  figured  out  that  It  was  a  more  pru- 
dent thing  to  have  the  logs  come  down  when 
the  carriage  was  right  opposite  the  deck 
than  when  It  was  ott  on  the  other  side.  I 
realized  that  it  was  necessary  for  me  to 
exercise  care  and  prudence  In  doing  my 
work  there  on  the  deck.  I  exercised  care 
and  prudence  during  the  time  that  I  was 
working  on  the  deck.  *  *  *  I  Immediate- 
ly started  to  roll  that  log  down.  I  stood  in 
front  of  It  Other  logs  were  packed  right 
up  against  it  I  stood  at  the  west  end,  the 
proper  place  where  any  man  had  to  work. 
That  was  the  left-hand  side  looking  toward 
the  jack.  I  put  in  my  cant  hook  and  rolled 
it  towards  me.  I  paid  attention  to  where 
the  carriage  was  at  the  time  I  started  to  roll 
it  The  carriage  was  just  turning  the  log. 
It  was  right  back  opposite  the  deck,  turning 
the  log  when  I  started.  It  was  Just  starting 
to  feed.  I  rolled  the  log,  or  started  to  roll 
it,  down  just  as  the  carriage  was  moving  to 
feed.  By  the  time  it  had  gotten  to  the 
kickers,  the  carriage  was  away  past  the 
deck.  When  I  started  the  log  with  the  cant 
hook  it  rolled  easily.  The  butt  end  of  th« 
log  away  from  me  struck  the  east  kicker  bar 
first.  As  I  would  roll  logs  onto  the  kicker, 
ordinarily,  I  would  generally  endeavor  to 
have  the  two  ends  strike  the  two  kicker  bars 
at  the  same  time.  I  would  not  always  do 
that  either.  As  a  general  thing  I  would  do 
tliat  I  usually  tried  to  do  so.  The  reason 
to  that  It  Is  customary  for  a  man  to  roll  a 


log  straight  to  keep  it  as  straight  on  the 
skids  as  possible.  I  knew  that  from  my 
previous  experience  in  rolling  those  logs 
down.  I  knew  that  was  the  proper  way  to 
keep  them  on  the  skids.  I  knew  that  was 
the  proper  way  to  roll  them  down.  I  do  not 
know  as  I  had  been  told  so,  but  I  had  ac- 
quired that  knowledge  from  my  own  experi- 
ence. •  •  •  Q.  You  didn't  roll  this  log 
straight  did  you?  A.  Why,  I  did—  I  could 
not  say  it  was  perfectly  straight — no.  I  be- 
lieve I  did  roll  that  log  down  so  that  the 
butt  end  hit  the  east  kicker  bar  first  I  roll- 
ed it  that  way  Instead  of  rolling  the  log 
straight,  so  that  it  would  hit  the  two  arms 
together  at  the  same  time.  I  was  not  care- 
less in  that  respect  at  that  time.  Q.  Well, 
now  will  you  explain  how  it  was  that  you 
did  not  come  to  roll  that  log  down  straight? 
A.  Why,  I  just  merely  started  the  log,  and 
It  rolled  Itself.  I  let  It  go.  It  was  pretty 
square  on  the  skids;  it  was  not  necessary 
for  me  to  touch  it" 

The  kickers  described  in  the  declaration 
were  not  out  of  repair.  No  witness  testified 
that  they  yielded  at  all  to  the  impact  of  the 
log.  They  either  did  or  did  not  remain  in  po- 
sition. If  they  did,  the  end  of  the  log  went 
over  the  particular  kicker  bar.  If  they  re- 
mained in  position,  the  defendant  was  not 
negligent.  It  was  and  Is  the  contention  of 
plaintiff  that  the  testimony  produced  estab- 
lished certain  premises  from  which  the  jury 
might  reasonably  Infer  that  the  kicker  bars 
did  not  serve  the  purpose  they  were  intended 
to  serve,  and  did  drop  down  instead  of  hold- 
ing the  log.  Schoepper  v.  Hancock  Chemical 
Co.,  113  Mich.  682,  71  N.  W.  1081.  His  the- 
ory is  that  it  is  not  probable  that  if  the  kick- 
er bars  had  remained  In  position,  the  end  of 
the  log  would  have  gone  over.  It  is  proba- 
ble, therefore,  that  the  kicker  bar  against 
which  the  log  was  thrown  did  not  remain  in 
position.  If  an  efficient  cause  for  its  drop- 
ping down  or  yielding  is  shown,  the  question 
whether  it  is  more  probable  that  It  did  drop 
down  than  that  the  log  went  over  it  in  posi- 
tion Is  a  question  of  fact  If  the  alleged  effi- 
cient cause  is  a  negligent  cause,  for  which 
the  master  Is  responsible,  the  plaintiff's  case 
Is  made  out.  In  support  of  this  theory,  plain- 
tiff Introduced  testimony  tending  to  prove 
that  in  a  room  below  the  one  in  which  the 
kicker  bars  were  was  a  steam  cylinder  op- 
erating a  piston  connected  with  one  of  the 
kicker  bars.  The  movement  of  the  pistoii  in 
this  cylinder  operated  the  kicker  bars.  The 
movement  to  reverse  the  bars  and  propel  the 
log  towards  the  carriage  was  controlled  by 
the  head  sawyer  by  means  of  a  lever  con- 
nected with  a  valve.stem.  which  valve,  in 
turn,  governed  the  introductiou  of  steam  in- 
to the  cylinder.  It  was  a  vertical  cylinder, 
receiving  steam  both  above  and  below  th« 
piston  head.  To  release  the  kicker  bars  au4 
propel  or  kick  the  log  towards  the  log  car- 
riage, the  movement  of  the  piston  was  uft 
and  to  bring  the  kicker  bars  to  position  for 
holding  logs  its  movement  was  down.  There 
was  attached  to  the  valT*  stem  a  weight    la 

Digitized 


1076 


122  NORTHWESTERN  REPORTER. 


(Midi. 


some  mills  a  spring  Is  used  Instead  of  • 
weight.  The  movement  of  tripping  the  kick- 
er bars  lifts  the  valve  stem,  permitting  steam 
to  enter  the  lower  part  of  the  cylinder. 
When  the  movement  Is  completed,  the  stem 
should  return  to  the  position  from  which  It 
started,  permitting  steam  to  enter  the  upper 
part  of  the  cylinder.  The  weight  or  spring 
upon  the  valve  stem  Is  for  the  purpose  of 
bringing  or  starting  It  back  to  Its  original 
position.  Testimony  was  introduced  which, 
viewed  most  favorably  for  plaintiff,  estab- 
lishes the  fact  that  Immediately  after  the 
plaintiff  was  injured,  the  weight  or  weights 
which  had  been  attached  to  the  valve  stem 
were  on  the  floor  underneath  the  place  where 
they  had  hung.  When  or  how  they  were  de- 
tached Is  not  shown.  It  does  not  appear  that 
they  had  ever  before  been  found  detached. 
The  apparatus  was  out  of  repair,  If  at  all, 
because  the  weights  were  absent  when  the 
injury  occurred.  It  is  not  claimed  that  the 
apparatus  with  the  weights  attached  was  not 
a  proper  machine.  There  is  testimony  tend- 
ing to  prove  that  upon  three  prior  occasions 
a  log  had  gone  over  the  kicker  bars,  and  that 
upon  one  of  these  occasions  the  general  mana- 
ger of  defendant  was  in  the  mill  and  could 
have  seen  it  How  the  absence  of  the  weights 
might  have  been  the  efBcient  cause  of  the 
dropping  down  of  the  bars  is  attempted  to 
be  shown  by  the  following  testimony  of  one, 
not  an  engineer,  who  knew  about  the  opera- 
tion of  the  steam  kickers  by  observation  on- 
ly: "Q.  Now,  If  there  were  no  weight  there, 
or  if  that  weight  was  taken  off,  what  would 
be  the  effect?  A.  Why,  it  might — It  would 
weaken  it  so  that  it  might  possibly  let  a  little 
steam  get  under.  Q.  And  what  effect  would 
that  have?  A.  Why,  It  would  raise  the  kick- 
ers, if  there  was  enough  steam  got  under." 

In  various  appropriate  ways  the  defendant 
raised  the  questions,  first,  that  the  declara- 
tion was  not  so  framed  as  to  permit  proof  of 
the  absence  of  the  weights  from  the  valve 
stem;  second,  that  the  testimony  did  not 
tend  to  prove  the  negligence  of  defendant. 
We  are  of  opinion  that  the  rulings  upon  both 
should  have  been  in  favor  of  defendant.  The 
declaration  directed  and  limited  attention  to 
kicker  bars,  which  It  particularly  described. 
The  duty  and  breach  of  duty  assigned  relate 
to  the  kicker  bars,  presumably  as  described. 
Undoubtedly  the  plaintiff  would  have  been 
permitted  to  amend  the  declaration  upon 
snch  terms  as  to  continuance,  or  otherwise, 
as  the  court  should  impose.  We  discover  no 
showing  of  surprise,  and  no  request  for  a 
continuance.  Under  the  circumstances  we 
might  well  decline  to  reverse  the  Judgment 
upon  this  ground.  But  we  find  no  testimony 
tending  to  prove  the  negligence  of  defendant 
An  admittedly  proper  device  was  in  use  by 
it,  and  in  the  respect  now  brought  to  atten- 
tion it  does  not  appear  that  it  was  ever  be- 
fore In  fault,  or  in  any  manner  infirm.  There 
was  therefore  no  proof  of  actual  knowledge 


of  Infirmity,  and  no  ground  for  imputing 
knowledge.  If  we  assume,  as  we  must  that 
the  kicker  bars  were  In  position  when  the 
plaintiff  started  the  log  down  upon  them,  we 
must  also  assume  that  after  the  last  reversal 
of  the  bars  by  tripping,  the  valve  stem  de- 
scended, the  steam  was  admitted  to  the  up- 
p»  part  of  the  cylinder,  and  the  piston  head 
was  forced  down  so  as  to  bring  them  to  po- 
sition. This  was  the  last  time  that  in  the 
operation  of  the  apparatus  the  weights  per- 
formed the  function  of  pulling  the  valve  stem 
down  80  as  to  permit  steam  to  be  admitted 
to  the  upper  part  of  the  cylinder.  It  was 
steam,  and  not  the  weights,  which  operated 
the  piston,  and  brought  the  bars  into  position 
to  hold  the  log.  Every  presumption  favors 
the  theory  that  when  last  called  upon  to  act, 
which  must  have  been  very  soon  before  plain- 
tiff was  hurt,  a  proper  apparatus  performed 
in  a  proper  and  accustomed  manner.  It  does 
not  appear  that  it  was  possible  for  any  force 
to  be  applied  to  valve  stem  or  valve  to  re- 
verse the  action  of  the  steam — to  lift  the 
stem — except  the  force  applied  in  tripping 
the  kicker  bars,  unless  some  one  meddled 
with  the  apparatus.  And  if,  after  last  brbvg- 
ing  the  kicker  bars  to  position,  steam  from 
any  cause  escaped  into  the  lower  part  of  the 
cylinder  to  an  extent  sufficient  to  move  the 
piston,  it  would  seem  to  be  clear  that  the 
position  of  the  kicker  bars  would  be  changed 
accordingly. 

The  .defendant  was  entitled  to  have  a  ver- 
dict directed  in  its  favor.  The  Judgment  is 
reversed,  and  a  new  trial  granted. 


UliLMAN  et  al.  v.  SANDELU  Treasurer. 
(Supreme  Court  of  Michigan.    Nov.  6, 1909.) 

1.  Cebtiobabi  (S  51*)— Recobd— Authentica- 
tion OP  Bvidencb---Sdffcienct. 

The  affidavit  for  a  writ  of  certiorari  pnr- 
IMrted  to  set  oat  the  substance  of  all  the  testi- 
mony taken.  The  return  of  the  circuit  judge 
was  a  brief  statement  of  the, Issues  presented 
and  the  manner  of  determination,  and  certified 
in  substance  the  matters  of  record  In  the  case, 
all  of  which  were  annexed,  and  that  "considei^ 
able  testimony  relating  to  the  same  was  sub- 
mitted by  both  parties."  Beld,  that  this  was 
not  an  authentication  of  the  statement  of  fbe 
testimony  in  the  affidavit  for  the  writ  the  cor- 
rectness of  which  was  challenged,  so  that  the 
statement  could  not  be  considered  on  the  hear- 
ing. 

[Ed.  Note.— For  other  cases,  see  Certiorari. 
Cent  Dig.  i  132;   Dec.  Dig.  {  51.*J 

2.  Mandamus  (f  109*)— Compeixino  Payment 
or  Municipal  Wabbants. 

Where  a  demand  against  a  municipal  cor- 
poration is  liquidated  and  evidenced  by  a  proper 
warrant  on  a  proper  officer,  requiring  payment, 
and  there  are  funds  to  pay  it,  mandamus  lies 
to  compel  payment. 

[Ed.  Note. — For  other  cases,  see  Mandamus, 
Cent  Dig.  i  227 ;  Dec.  Dig.  i  109.*] 

3.  MaNQAMUS  a  1Q0*)— COMPELLINO  PAYMENT 

or  MuiriciPAL  Wabbants. 

Wbere  a  township  was  nammoned  as  a  gar- 
nishee of  the  payee  and  holder  of  a  warrant  nn 


•For  other  ca«et  lee  same  topic  aod  section  NUMBBR  in  Dec.  &  Am.  Digs.  1907  io  data,  *  Reporter  Indeiw 


Digitized  by  VjOOQ  l€ 


MidL) 


ULLMAN  V.  SANDBLI* 


1077 


the  diahnrslnr  officers  «f  the  township,  and  a 
judgment  against  the  town  was  rendered,  man- 
damus does  not  lie  to  compel  the  township  treas- 
urer to  pay  the  warrant  to  an  indorsee  thereof, 
as  the  validity  of  the  judgment  in  ^mishment 
may  not  be  determined  in  a  proceeding  between 
the  indorsee  and  disbursing  ofBcers. 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Dec  Dig.  i  109.  •] 

4.  Mandamtjs  (g  109*)— CoMPELUNG  Payment 
or  Municipal  Wabbants. 

The  liability  ot  a  township  to  an  undis- 
closed principal  of  one  who  contracts  to  perform 
public  work  may  not  be  tried  in  mandamus  by 
the  holder  of  a  warrant,  issued  to  the  contractor 
pursuant  to  the  contract  and  the  law,  to  compel 
the  disbursing  officers  of  the  township  to  pay 
the  warrant 

[Ed.  Note.— For  other  cases,  see  Mandamus, 
Dec.  Dig.  i  lOO.*] 

5.  Towns  (§  50*)— Claims— Payments. 

A  township  treasurer  may  disburse  funds 
only  on  proper  warrants,  and  title  by  indorse- 
ment of  a  warrant  to  protect  the  treasurer 
means  title  by  indorsement  ot  the  payee. 

[Ed.  Note.— For  other  cases,  see  Towns,  Cent 
Dig.  I  81 ;   Dec.  Dig.  S  60.*1 

Certiorari  to  Circuit  Court,  Gogebic  Coun- 
ty; Samuel  S.  Cooper,  Judge. 

Mandamus  by  Joseph  TTllman  and  others 
against  Andrew  Sandell,  Treasurer  of  Iron- 
wood  Township.  There  was  a  Judgment  de- 
nying peremptory  mandamus,  and  relators 
bring  certiorari.    Affirmed. 

See  122  N.  W.  617. 

Argued  before  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

Julius  J.  Patek,  for  appellants.  Curtis 
Buck  and  George  O.  DriscoU,  for  appellee. 

OSTRANDER,  J.  The  writ  of  certiorari  is 
directed  to  the  circuit  judge.  It  was  allow- 
ed upon  the  aflSdarit  of  the  attorney  for  re- 
lators, in  which  affidavit  Is  set  out  that  it  is 
made  to  procure  a  writ  of  certiorari  in  aid 
of  a  writ  of  error,  which  had  already  been 
sued  out  of  tills  court  by  relators.  It  pur- 
ports to  set  out  the  substance  of  all  testi- 
mony introduced  at  the  hearing  in  the  court 
below.  No  notice  of  the  Issuing  of  the  writ 
of  certiorari  was  given  to  counsel  for  the 
appeUee  until  after  the  writ  had  been  re- 
turned. We  assume  this  fact  because  the 
printed  record  contains  such  a  notice,  dated 
June  26,  1909.  The  fact  is  also  asserted  by 
counsel  for  the  respondent.  The  writ  issued 
June  7,  1909.  It  appears  from  matter  in- 
corporated in  the  printed  record  that  the 
writ  of  error  was  dismissed  by  relators,  or 
was  attempted  to  be  dismissed,  without  leave 
of  the  court  The  return  made  by  the  cir- 
cuit Jndge  Is  a  brief  statement  of  the  is- 
sues presented  in  the  mandamus  proceeding, 
and  the  manner  in  which  they  were  deter- 
mined, and  It  certifies,  in  substance  and  ef- 
fect, the  authenticity  of  the  petition  for 
mandamus,  the  order  to  show  cause,  the 
answer,  the  statement  of  issues  framed,  and 
the  judgment  entry,  all  of  which  are  an- 
nexed to  the  return.    The  Issues  which  were 


framed  were:  "(1)  Was  the  order  duly  au- 
dited and  allowed  by  the  township  board? 
(2)  Are  the  relators  the  owners  of  the  inter- 
ests of  Erick  Norman  and  Sinna  Norman, 
whatever  they  were  in  said  order?  (3)  Do 
the  relators  bold  said  order  for  the  benefit  of 
Erick  Norman?  (4)  Is  the  garnishee  judg- 
ment valid?"  Concerning  the  first  three,  If 
is  certified  they  were  answered,  respectively, 
"Yes,"  "Yes,"  and  "No,"  and  that  "consid- 
erable testimony  relating  to  the  same  was 
submitted  by  both  parties."  This  is  not  an 
authentication  of  the  statement  of  the  tes- 
timony contained  in  the  affidavit  for  the 
writ  of  certiorari,  the  correctness  of  which 
is  challenged  by  respondent  Aside  from 
such  statement,  which  we  cannot  consider, 
we  find  In  the  record  nothing  to  indicate 
that  Slnna  Norman  had,  or  claimed  to  have, 
any  interest,  directly  or  indirectly,  in  the 
warrant  or  the  fund,  except  a  notice  pro- 
duced in  the  disclosure  of  the  garnishee  de- 
fendant, which  will  be  referred  to  later. 

The  proceeding  was  instituted  to  compel 
respondent,  a  township  treasurer,  to  pay  a 
certain  warrant,  issued  and  delivered  by  the 
commissioner  of  highways  of  Ironwood  town- 
ship, Gogebic  county,  uix>n  the  treasurer  of 
the  township,  to  pay  to  Erick  Norman,  or  or- 
der, $355.50  "out  of  the  highway  fund  for 
contract  on  road."  It  was  countersigned  by 
tbe  township  clerk.  Comp.  Laws,  §g  4214, 
4215.  On  the  day  It  was  dated  (October  7, 
1907)  It  was  presented  by  the  payee  for  pay- 
ment to  tbe  respondent  and  payment  was 
refused  because  on  that  day,  and  shortly  be- 
fore the  warrant  was  presented,  tbe  town- 
ship had  been  garnished  as  the  debtor  of  the 
said  Erick  Norman.  Tbe  refusal  and  the 
name  and  office  of  the  deputy  township  treas- 
urer was  indorsed  upon  the  order.  The  title 
to  the  warrant  asserted  by  the  relators, 
plaintiffs  In  certiorari.  In  the  x>etItIon  for  a 
mandamus  is  that  it  was  transferred  to  them 
by  Indorsement  and  that  on  August  29,  1908, 
they  caused  it  to  be  presented  to  respondent 
for  payment,  and  payment  was  refused  be- 
cause a  judgment  had  been  theretofore  ren- 
dered against  the  township  as  garnishee  of 
said  Eridc  Norman  at  the  suit  of  William 
Keman.  It  is  alleged  that  this  judgment 
was  rendered  October  23, 1907,  is  unpaid,  and 
is  void,  furnishing  no  reason  for  not  paying 
the  warrant.  The  sole  ground  of  attack  up» 
on  the  judgment  which  Is  stated  In  the 
brief  for  relators  is  that  the  garnishee  dis- 
closed that  a  notice,  purporting  to  be  signed 
by  Sinna  Norman,  by  Julius  J.  Patek,  her 
attorney,  to  the  effect  "that  the  contract 
heretofore  made  and  entered  Into  with  you 
by  Elrlck  Norman  to  perform  work  and  labor 
upon  tbe  roads  and  highways  of  said  town- 
ship was  made  and  entered  into  by  him  for 
and  on  behalf  of  the  imdersigned,  and  that 
the  teams  used  in  the  performance  of  such 
work  and  labor  were  and  are  owned  by  the 
said  undersigned,  and  that  the  persons  en- 


•For  other  easn  see  lams  topic  and  lectlon  MUMBBR  In  Dec.  *  Am.  Digs.  U07  to  date,  &  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


1078 


122  NORTHWESTERN  REPORTER. 


<HIcli. 


gitged  In  and  about  the  performance  of  the 
same  were  the  employes  of  the  underalgned, 
and  that  the  amount  now  due  from  you  for 
the  said  work  and  labor  of  said  employes 
and  teama  of  the  undersigned  was  at  all 
times  and  now  is  due  her,  and  not  to  the 
said  Erlck  Norman,  and  that  your  order  dat- 
ed the  7th  day  of  October,  1907,  signed  by 
Thos.  Saari,  commissioner  of  highways  ot 
Ironwood  township,  and  countersigned  by 
Chas.  Anderson,  township  clerk,  bearing  No. 
399,  and  being  for  the  sum  of  $355.60,  and 
payable  to  the  said  Erlck  Norman,  or  order, 
at  all  times  since  the  Issuance  thereof  has 
been,  and  now  Is,  the  property  of  the  under- 
signed, and  that  the  undersigned  looks  to  yon 
for  the  full  value  of  said  work  and  labor  as 
evidenced  by  said  order" — had  been  on  Oc- 
tober 16,  1907,  served  upon  the  township, 
and  that  the  justice  of  the  peace  having  ju- 
risdiction did  not  give  notice  to  SInna  Nor- 
man, under  provisions  of  Comp.  Laws,  i 
1017.  It  is  said:  "The  only  question  involv- 
ed on  this  record  Is  whether  the  judgment 
of  the  justice  of  the  peace  is  such  a  valid 
and  binding  adjudication  upon  the  rights  of 
Slnna  Norman  and  her  assignees  In  and  to 
the  fund  represented  by  said  township  order 
as  to  prevent  relators  from  recovering,  ir- 
respective of  the  fact  that  their  rights  ac- 
crued prior  in  time  to  the  Issuance  and  serv- 
ice of  the  pretended  garnishment  procesa 
The  lower  court  held  that  It  was,  and  for 
that  reason  denied  the  writ  of  mandamus. 
In  this  he  was  clearly  In  error." 

No  money  was  paid  Into  court  The  prin- 
cipal defendant  appeared  by  Julius  J.  Patek 
on  the  return  day.  The  plaintiff  in  garnish- 
ment, who  was  at  the  time  a  judgment  cred- 
itor of  Erlck  Norman,  later  declared  against 
the  township,  and,  testimony  having  been 
offered,  a  judgment  against  the  township  for 
(241.60  and  $6.80  costs  was  rendered.  No 
appeal  was  taken.  The  learned  circuit  judge 
was  of  opinion  that  prior  to  the  enactment 
of  Act  No.  172.  p.  235  (Pub.  Acts  1901),  the 
judgment  would  have  been  a  nullity  because 
the  garnishee  did  not  disclose  an  absolute 
liability,  and  Comp.  Laws,  {  1017,  did  not 
apply  because  no  money  was  paid  Into  court ; 
"that  the  said  Act  No.  172  of  the  Public  Acts 
of  1901  changed  the  rule  that  a  garnishee 
disclosure  was  final,  and  allowed  the  matters 
disclosed  to  be  controverted  by  the  plaintiff, 
and  a  trial  had,  the  same  as  if  the  garnishee 
was  being  sued  by  the  principal  defendant 
for  the  matters  set  forth  in  the  declaration, 
which  the  plalntlft  is  permitted  to  file ;  and, 
it  appearing  from  the  record  of  the  said  gar- 
nishee judgment  that  a  declaration  had  been 
filed  against  the  garnishee  defendant,  wit- 
nesses sworn,  and  a  trial  had  upon  the  is- 
sues tendered  by  such  declaration,  that  it 
must  be  presumed  that  upon  such  trial  It  was' 
shown  to  the  satisfaction  of  the  justice  of 
the  peace  that  the  money  was  not  claimed 


by  Slnna  Norman,  *  •  *  and  that,  as 
these  proceedings  in  mandamus  are  a  collat- 
eral attack  upon  said  judgment,  said  pre- 
sumption most  prevaiL"  It  is  not  neces- 
sary to  approve  or  disapprove  fbe  reasons  so 
given  for  holding  the  judgment  in  garnish- 
ment to  be  a  valid  judgment.  The  judgment 
is  not,  npon  its  face,  void,  whatever  the  ef- 
fect of  the  act  of  1901  may  be  thought  to  be. 
When  a  demand  against  a  municipal  corpo- 
ration is  liquidated  and  evidenced  by  a  prop- 
er warrant  upon  a  proper  officer,  requir- 
ing upon  the  part  of  such  officer  the  offi- 
cial action  of  paying  it,  such  action,  there 
being  funds,  may  be  comi>elled  by  manda- 
mus. But  It  Is  not  the  clear  legal  duty  of 
a  township  treasurer  to  pay  such  a  war- 
rant to  the  payee  and  holder  thereof  when 
the  township  has  been  summoned  as  gar- 
nishee of  such  payee  and  holder,  nor  there- 
after to  pay  it  to  one  who  aoqulrea  it  by 
indorsement,  the  garnishment  proceedings 
having  passed  Into  a  judgment  against  the 
township.  Whether  the  judgment  in  garnish- 
ment is  a  bar  to  the  rights  of  relators  is  not 
a  matter  which  ought  to  be  determined  in  a' 
proceeding  between  them  and  the  respond- 
ent. We  understand  that  the  court  below 
did  not  determine  whether  Slnna  Norman 
had  any  right  to  the  fund.  The  liability  of 
the  township  to  an  undisclosed  principal  of 
one  who  contracts  to  perform  public  work  is 
not  a  question  which  ought  to  be  tried  in  a 
proceeding  between  the  holder  of  a  warrant 
Issued  to  the  contractor  pursuant  to  the  con- 
tract and  to  law  and  the  disbursing  officer  of 
the  township.  Respondent  could  not  have 
properly  paid  the  money  to  her,  or  to  any 
person  other  than  the  payee,  except  upon 
the  order  of  the  payee,  because  he  can  dis- 
burse funds  only  upon  proper  warrants.  The 
title  relators  assert  is  a  title  by  indorsonent 
to  a  warrant  for  money.  Title  by  indorse- 
ment, for  the  purposes  and  protection  of  re- 
spondent disbursing  officer,  means  title  by 
Indorsement  of  the  payee. 

The  order  refusing  the  writ  of  mandamnt 
Is  affirmed,  with  costs  to  respondent. 


GATES  V.  DETROIT  ft  M.  RT.  00. 
(Supicme  Court  of  Michigan.    Nov.  5,  1909.) 

1.  Estoppel'  (%  68*)— Position  ik  JuniciAi. 
Pboceedirq. 

Where  a  clerical  error  in  a  contract  ia 
recognized  by  the  parties  thereto  in  an  action 
at  law  thereon,  and  the  court  accepted  the  cor- 
rections agreed  on,  the  question  of  error  in  the 
contract  was  foreclosed  in  a  subsequent  suit 
for  specific  performance  of  the  contract 

[EM.    Note.— For  other   cases,   see    Elstoppel. 
Cent  Dig.  M  165-189;    Dec.  Dig.  |  6a*I 

2.  Cakhiers  (8  84*)  —  Cabriaoe  of  Goods  — 
Place  of  Demvebt. 

Where  a  railroad  contracting  to  haul  Iocs 
to  a  city  at  a  specified  rate  had  established  a 
custom  as  to  the  place  of  delivery  of  car  loads 


•Ifor  other  caaei  lae  uim*  topic  and  lectlon  NUMBER  In  Dec.  t  Am.  Dlgi.  U07  to  date,  t  Reporter  ladazes 


Digitized  by  LjOOQ  l€ 


Micb.) 


GATES  ▼.  DETROIT  a>  H.  BT.  00. 


1079 


of  logs  and  other  ear  load  trelKht,  and  such  cns- 
tom  continned  for  some  time  after  the  making  of 
the  contract,  delivery  must  be  made  according 
to  such  custom,  especially  where  a  delivery  at 
another  place  wonld  be  impracticable. 

[EM.  Note.— For  other  cases,  see  Carrier*, 
Cent.  Dig.  S  27T;  Dec  Dig.  §  SL*} 

Appecd  from  drcalt  Court,  Bay  County,  In 
Chancery;  Chester  L.  Oolllns,  Judge. 

Suit  by  Samuel  G.  M.  Gates,  deceased,  re- 
Tlved  on  his  death  by  Louise  M.  Gates,  ad- 
mlnistratrtz,  against  the  Detroit  &  Mackinac 
Railway  Company.  From  a  decree  for  com- 
plainant, defendant  appeals.    'Affirmed. 

Argued  before  OSTRANDEE,  HOOKEE, 
MOORE,  McAIiVAY,  and  BROOKE,  JJ. 

James  McNamara  (Weadock  &  Duffy,  of 
counsel),  for  appellant  Gillett  &  Clark,  for 
appellee. 

McALVAY,  J.  The  bill  of  complaint  In 
this  case  was  filed  by  complainant's  decedent 
The  action  was  revived  by  the  administratrix 
after  his  death.  It  arises  from  a  dispute 
between  the  parties  relative  to  their  re- 
spective rights  under  a  certain  contract  en- 
tered into  between  them.  This  contract  was 
made  In  August  1899,  by  certain  correspond- 
ence, for  the  hauling  of  complainant's  logs 
from  town  25  N.,  range  4  and  6  W.,  at  a 
freight  rate  of  $3  per  1,000  feet  to  North 
Bay  City.  A  logging  road,  called  "Gates 
Branch,"  was  built  according  to  the  terms 
of  the  contract  by  these  parties;  Mr.  Gates 
furnishing  the  right  of  way,  grading,  and 
the  ties,  defendant  doing  the  ballasting  and 
putting  on  the  rails.  The  branch  was  about 
six  miles  In  length.  Logs  to  the  amount  of 
several  millions  of  feet  were  hauled  during 
the  years  of  1900  to  1903,  inclusive,  at  the 
contract  rate.  During  this  time  all  deliveries 
were  made  by  defendant  by  turning  over  its 
cars  at  North  Bay  City,  its  transfer  yard,  to 
the  Michigan  Central  Railroad  Company, 
which  delivered  them  over  Its  own  tracks 
to  the  Gates  Mill,  where  the  cars  were  un- 
loaded and  then  returned  by  the  Michigan 
Central  Railroad  to  defendant's  tracks  at 
North  Bay  City.  In  January,  1904,  defend- 
ant notified  complainant  by  letter  that  the 
freight  rate  would  be  Increased.  The  in- 
creased rate  was  paid  under  protest  and 
complainant  brought  an  action  at  law  to  re- 
cover overcharges  so  paid  during  the  year 
1904.  He  recovered  Judgment  which  with 
a  slight  modification  of  $75,  deducted  for 
noncontract  logs,  was  affirmed  by  this  court 
In  Gates  t.  Det  &  Mack.  Ry.,  147  Mich.  523, 
111  N.  W.  101.  The  opinion  in  that  case 
contains  the  contract  and  other  correspond- 
ence between  the  parties.  Reference  is  had 
to  it  for  a  more  extended  statement  of  facts. 
That  judgment  was  paid  and  satisfied.  It 
was  settled  in  that  case  that  the  contract 
did  not  apply  to  timber  purchased  by  com- 
plainant after  the  contract  was  entered  In- 


to, and  also  that  the  contract  rate  would  con- 
tinue In  force  until  all  the  timber  Included 
within  its  terms  had  bem  hauled.  That  case 
was  decided  March  12,  1907.  The  parties 
were  unable  to  come  to  a  settlement  for  the 
overcharges  due  to  complainant  for  the  years 
1905  and  1906,  and  defendant  continued  to 
collect  overcharges  for  hauling  logs,  claiming 
that  they  were  not  contract  logs.  After  some 
correspondence  between  the  parties  defend- 
ant on  May  20,  1907,  notified  complainant 
that  it  would  no  longer  permit  the  cars  to 
be  taken,  and  the  delivery  of  the  logs  to  be 
made,  at  complainant's  mill  for  unloading, 
as  had  before  that  date  always  been  done, 
as  hereinbefore  described,  but  would  require 
them  to  be  unloaded  at  North  Bay  City,  and 
in  carrying  out  this  determination  defend- 
ant on  the  next  day  informed  complainant 
that  it  had  In  its  iMssesslon  at  North  Bay 
City  24  cars  of  logs  consigned  to  him,  which 
would  not  be  delivered  until  the  freight 
thereon  was  paid  at  the  rate  of  $4.25  per 
thousand  for  hard  wood,  and  $3.25  per  thou- 
sand for  other  logs.  Tender  of  the  full  price 
under  the  contract  was  at  once  made  to  de- 
fendant, with  a  demand  that  the  usual  de- 
livery be  made.  The  tender  was  refused, 
and  the  demand  disregarded,  and  the  logs 
were  held  by  defendant  Thereupon  the  bill 
of  complaint  In  the  case  at  bar  was  filed  to 
compel  a  specific  performance  of  the  con- 
tract, both  In  respect  to  the  freight  rate,  and 
the  transfer  privileges,  to  which  complain- 
ant claimed  he  was  entitled  under  the  con- 
tract also  for  a  decree  for  a  repayment  of 
excess  freight  charges  paid  under  protest 
during  the  years  1905-1907.  A  mandatory 
Injunction  was  applied  for,  after  an  ordinary 
negative  injunction  had  been  granted,  and  a 
motion  made  to  dissolve  the  same.  The  mo- 
tion to  dissolve  the  injunction  was  denied, 
and  a  mandatory  injunction  was  issued  as 
prayed.  Defendant  then  appealed  to  this 
court  'and  the  mandatory  Injunction  affirmed, 
except  as  to  logs  concerning  which  there  was 
a  question  whether  they  were  Included  In  the 
contract  Gates  v.  Det.  &  Mack.  Ry.,  151 
Mich.  548,  115  N.  W.  420.  Since  that  time 
the  case  has  been  heard  In  the  circuit  court 
and  a  decree  rendered  In  favor  of  complain- 
ant granting  the  relief  prayed  for,  and  also 
decreeing  the  sum  of  $5,141.82,  with  inter- 
est, to  be  due  complainant  for  overcharges 
paid  under  protest  to  defendant  In  excess  of 
the  contract  price  per  thousand  for  hauling 
complainant's  logs. 

That  a  clerical  error  occurred  In  the  nam> 
ber  of  the  township  to  which  the  road  was 
to  extend  for  the  purpose  of  reaching  the 
Gates  timber  is  apparent  and  was  recognized 
by  both  parties  In  the  action  at  law,  as  ap- 
pears by  the  declaration,  plea,  and  admis- 
sion upon  the  trial.  The  opinion  of  the  court 
in  that  case  having  accepted  the  correction 
agreed  upon  of  an  error  so  obvious,  the  que»' 


•For  otber  cum  im  same  topio  and  lecUon  NUMBER  In  Dm.  *  Am.  Dies.  U07  to  date,  t  Reportw  ladezw 


Digitized  by  LjOOQIC 


1080 


122  NORTHWBSTORN  BBPOBTGB. 


(Mlcb. 


tlon  Is  foreclosed  against  defendant.  In  the 
contract  a  general  description  of  the  tract  of 
timber  Is  given  as  located  in  town  24  (25) 
nortb,  range  4  and  6  east.  The  descriptions 
given  in  detail  In  the  bill  of  complaint  are 
all  within  such  town  and  ranges,  and  the 
proof  is  clear  that  this  was  the  timber  In 
contemplation  of  the  parties  and  made  the 
subject-matter  of  the  contract  It  is  the  tim- 
ber which  was  cut  by  complainant  and 
hauled  by  defendant  every  year  since  1900 
under  the  terms  of  this  agreement,  except  a 
small  amount  cut  from  after-acquired  lands.. 
The  evidence  on  the  part  of  complainant 
.establishes  a  prima  facie  case  of  ownership 
by  Mr.  Gates  of  the  timber  hauled  by  de- 
fendant under  this  contract  No  testimony 
was  offered  upon  the  matter  by  defendant 
This  is  the  contract  timber  which  complain- 
ant was  entiUed  to  have  hauled  by  defend- 
ant at  the  contract  rate.  These  are  the  logs 
which  defendant  before  the  commencement 
of  this  suit  refused  to  continue  to  place 
on  the  side  track  in  its  yard  to  be  received 
by  the  Michigan  Central  engines  and  deliver- 
ed at  complainant's  mill  in  Bay  Olty,  and 
notified  complainant  that  he  must  unload  at 
North  Bay  City. 

The  bill  In  this  case  was  filed  to  deter- 
mine whether  defendant  was  obliged  by  Its 
contract  to  continue  to  cause  these  logs  to 
be  delivered  at  complainant's  mill,  complain- 
ant contending  that  the  contract  was  made 
with  reference  to  a  custom,  which  in  the  de- 
livery of  these  logs  defendant  had  followed 
for  seven  years.  It  Is  contended  by  the  de- 
fendant that  evidence  of  a  custom  is  inad- 
missible to  vary  the  terms  of  a  written  con- 
tract and  that  the  custom  proved,  if  admis- 
sible, has  no  bearing  upon  this  case.  The 
testimony  of  defendant's  'general  superin- 
tendent, who  acted  for  defendant  In  making 
this  contract,  shows  that  the  yard  at  North 
Bay  City  is  not  a  terminal,  and  had  not  been 
used  as  a  place  of  delivery  of  car  loads  of 
logs  or  other  car  load  freight;  that  at  that 
place  it  has  no  terminal  facilities,  and  the 
general  practice  has  been  to  deliver  car  loads 
of  logs  and  other  car  load  freight  for  Bay 
City  by  transfer  to  the  Michigan  Central  in 
the  same  manner  that  the  Gates  logs  were 
delivered  until  Just  before  the  complainant's 
bill  was  filed;  that  such  delivery  was  in  his 
opinion  an  accommodation  or  convenience  to 
Mr.  Gates  and  other  shippers.  The  record 
shows  that  there  are  no  sufficient  conven- 
iences In  this  yard  to  make  delivery  by  un- 
loading large  quantities  of  sawlogs.  Defend- 
ant insists  that  the  contract  determines 
where  delivery  was  to  be  made  by  the  words, 
"We  to  haul  your  logs  from  town  24  (25) 
north,  range  4  and  5  east,  to  North  Bay  City 
at  the  rate  of  $2.00  per  thousand  feet  board 
measure."  The  contract  is  specific  as  to  the 
rate  and  the  haul,  but  it  is  silent  as  to  de- 
livery.    A  delivery   was  contemplated  (the 


usual  and  customary  delivery  to  shippers  of 
car  load  lots).  A  custom  has  been  estab- 
lished by  the  evidence,  which  was  In  practice 
before  the  time  of  making  this  contract  and 
ever  since.  The  general  superintendent's  tes- 
timony admits  such  a  custom,  called  by  him 
an  accommodation  or  convenience.  That  the 
practical  construction  of  the  parties  for  seven 
years  as  to  the  manner  of  delivery  was  In 
accord  with  such  a  custom  is  confirmatory 
that  they  contracted  In  contemplation  of  It 
The  evidence  also  shows  that  to  unload  these 
logs  at  North  Bay  City,  or  to  transfer  them 
from  defendant's  cars  to  others,  would  be 
"Impracticable  and  prohibitive." 

There  remains  to  be  considered  the  amoant 
of  overcharges  paid  to  defendant  as  freight 
upon  contract  logs  hauled.  All  shipments 
subsequent  to  January  1,  1906,  are  to  be 
considered.  It  la  unnecessary  to  make  the 
computation.  Defendant  has  been  credited 
with  the  amount  of  dUference  in  charges 
between  contract  and  noncontract  logs  at 
76  cents  and  $1.25  per  thousand  feet,  which 
leaves  a  balance  due  complainant  of  $i5,141.S2 
as  found  by  the  trial  court 

The  decree  of  the  circuit  court  is  affirmed, 
with  costa 


In  re  MILLS. 

(Sopreme  C!oart  of  Michigan.    Nov.  5, 1909.) 

1.    EZECUTOBS  AND  ADinNISTRATOBS  (f  509*) — 

Final  Account— Pbtitiok  to  Set  Aside— 

sufticibnct. 

A  petition  to  set  aside  the  allowance  of  an 
administrator's  final  account  on  the  ground  that 
the  administrator  had  not  paid  petitioner  a  bal- 
ance due  her  as  intestate's  widow ;  that  he  had 
filed  no  account  for  a  portion  of  the  assets  of  the 
estate,  and  that  the  acconnt  In  several  particu- 
lars was  eo  indefinite  and  Irregular  as  to  make 
it  impossible  to  determine  for  what  the  dis- 
bursements therein  charged  were  made ;  that 
some  of  the  charges  were  excessive  and  illegal 
and  a  fraud  upon  the  estate,  and  that  he  ^d 
paid  an  exorbitant  fee  to  an  attorney  for  serv- 
ices alleged  to  have  been  rendered  the  estate- 
showed  either  mistake  or  fraud,  and  was  suffi- 
cient even  if  Act  No.  271,  p.  417  (Pub.  Acts 
1905),  la  to  be  construed  to  require  a  showing 
of  fraud,  accident  or  mistake  to  authorise  the 
probate  court  to  entertain  such  a  petition. 

[Ed.  Note.— For  other  cases,  see  E/xecuton  and 
Administrators,  Cent  Dig.  ||  2199-2219;  Dec. 
Dig.  i  509.*] 

2.  CouBTS  (I  202*)— Pbobatb  Coubt8— Apfkai; 

—Limitations  of  Rkvibw. 

Under  the  statute  requiring  an  appellant 
from  the  probate  conrt  to  state  the  leasons  for 
bis  appeal,  he  can  urge  no  other  reason  In  the 
circuit  court 

[Ed.  Note.— For  other  cases,  see  Courts,  Dec. 
Dig.  f  202.*] 

Error  to  Circuit  Coart  Eaton  Oonnty; 
Clement  Smith,  Judge. 

Petition  to  the  probate  coart  to  set  aside 
the  allowance  of  the  final  account  of  Myron 
Mills,  administrator  of  the  estate  of  Frank 
B.  Mills,  deceased.  The  petition  was  allowed, 
and  the  administrator  appealed  to  the  clrcnit 


•ror  otbsr  GSMs  m*  lame  topio  and  lecUon  NUMBBB  in  Dec.  ft  Am.  mg*.  1M7  to  data.  *  Boportw  Iod«xM 


Digitized  by  LjOOQIC 


inch.) 


IN  RE  MILLS. 


1081 


court,  which  court  dismissed  his  appeal,  and 
he  brings  error.    Affirmed. 

Appellant,  Myron  Mills,  was  the  adminis- 
trator of  the  estate  of  Frank  B.  Mills,  deceas- 
ed. On  April  2,  1907,  he  presented  his  final 
account  to  the  probate  court,  and  asked  for 
Its  allowance.  It  appears  from  the  record 
that  on  the  same  date  an  order  was  entered 
allowing  the  account  The  statement  is  made 
In  appellant's  brief  that  the  probate  court 
made  an  order  fixing  a  date  for  hearing,  and 
directed  notice  thereof  to  be  given  by  pub- 
lication In  a  newspaper  published  in  the  city 
of  Charlotte.  This  statement  is  not  denied 
in  appellee's  brief.  We,  therefore,  assume 
that  there  is  a  clerical  mistake  in  the  dates 
above  mentioned,  ana  that  due  notice  of  the 
hearing  was  given.  On  June  18th  following 
the  widow  of  deceased  filed  a  i>etltion  with 
the  profbate  court,  stating  that  she  did  not 
learn  of  the  filing  of  this  final  account,  or  of 
the  hearing  thereon,  until  shortly  before  the 
filing  of  her  petition.  She  prayed  for  a  re- 
hearing of  said  final  account,  and  that  notice 
be  given  the  administrator  and  other  parties 
Interested,  who  were  named  in  her  petition. 
In  her  petition  she  charged  that  the  adminis- 
trator had  not  paid  her  the  sum  of  $82,  bal- 
ance of  the  amount  due  her  as  the  widow  of 
the  deceased,  under  an  order  of  the  probate 
court.  She  further  charges  that  he  had  filed 
no  account  for  a  portion  of  the  assets  of  said 
estate,  and  that  the  account,  in  several  par- 
ticulars, was  so  indefinite,  uncertain,  and  ir- 
regular as  to  make  it  impossible  to  determine 
for  what  various  items  the  disbursements 
therein  charged  were  made;  and  that  some 
of  the  charges  were  excessive,  irregular,  and 
illegal  and  a  fraud  upon  said  estate,  and  that 
no  proper  vouchers  showing  the  disburse- 
ments were  filed  with  the  account.  She  fur- 
ther charges  that  he  had  paid  an  exorbitant 
and  excessive  sum,  $300,  to  an  attorney  for 
alleged  services  rendered  the  estate.  The 
probate  court  entered  an  order  fixing  a  date 
for  hearing  her  petition,  due  notice  whereof 
was  served  on  the  administrator.  The  admin- 
istrator filed  no  answer  or  other  pleading, 
and  upon  the  date  fixed  for  the  hearing  the 
parties  appeared  by  their  respective  attor- 
neys. The  probate  court  made  an  order 
granting  a  rehearing,  reciting  that  he  made 
the  order  after  a  full  hearing  and  examina- 
tion in  the  premises,  and  finding  that  there 
were  evidences  of  Irregularities,  unwarranted 
and  Improper  charges,  a  payment  of  a  dalm 
disallowed  by  the  commissioners,  and  failure 
upon  the  part  of  the  administrator  to -proper- 
ly account  for  the  funds  of  the  estate.  A  date 
was  then  fixed  for  the  hearing  of  the  final  ac- 
count, and  certain  changes  made  therein 
against  the  administrator.  From  that  order 
the  administrator  appealed  to  the  drcpit 
court,  alleging  as  his  reason  for  said  appeal 
that  "the  said  probate  court  had  made  an  or- 
der on  April  2,  1907,  allowing  final  account 


of  administrator,  and  had  no  authority  to 
modify  or  set  same  aside,  as  said  court  as- 
sumed to  do  on  July  15,  1007,  and,  further, 
assumed,  in  an  order  made  on  September  4, 
1907,  to  modify  the  order  allowing  final  ac- 
count of  administrator  and  disallowing  cer- 
tain items  In  said  final  account  aggregating 
the  sum  of  $300  and  upwards,  and  charging 
said  administrator  interest  on  certain  moneys 
collected  by  him  as  administrator."  The  cir- 
cuit court  dismissed  the  appeal,  and  the  or- 
der of  the  circuit  court  is  now  before  us  for 
review. 

Argued  before  BLAIR,  O.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDBR,  and  HOOK- 
ER, JJ. 

A.  Elwood  Snow,  for  appellant  Joseph  B. 
Hendee  (Huggett  &  McPeek,  of  counsel),  for 
appellees  Mae  Mills  Hulbert  and  others. 

GRANT,  J.  (after  stating  the  facts  as 
above).  The  petition  in  this  case  was  filed 
under  Act  No.  271,  p.  .417  (Pub.  Acta  1905). 
By  that  act  the  law  was  amended,  giving  to 
the  probate  courts  the  right  to  modify  and 
set  aside  their  orders,  sentences,  and  decrees 
upon  a  i)etltion  therefor  made  within  00  days 
of  the  original  hearing,  or  of  the  entry  of 
such  order,  sentence,  or  decree.  Prior  to  this 
act  probate  courts  had  no  authority  to  set 
aside  or  modify  their  decrees.  The  sole  rem- 
edy was  by  appeal  to  the  circuit  court  The 
position  of  the  appellant  Is  that  the  probate 
court  has  no  Jurisdiction  to  entertain  a  peti- 
tion without  a  showing  of  fraud,  accident,  or 
mistake,  and  Insists  that  the  petition  does 
not  allege  either  of  these  requisites.  Wheth- 
er the  statute  should  receive  the  construction 
insisted  upon  by  appellant  It  is  unnecessary 
to  determine.  The  petition  alleges  facts 
which,  if  true,  are  either  the  result  of  a  mis- 
take or  fraud.  The  allegations  of  the  peti- 
tion are  therefore  sufficient,  and  the  court 
has  found  that  they  were  sustained  by  the 
evidence.  The  evidence  upon  which  he  based 
his  conclusions  is  not  in  the  record. 

2,  The  order  of  the  circuit  court  dismissing 
the  appeal  was  entered  May  21,  1908.  On 
July  9th  following  the  administrator  made  a 
motion  to  grant  a  rehearing  and  a  new  trial 
because  he  had  not  had  a  hearing  on  the  mer- 
its. The  motion  was  denied,  holding  that 
the  sole  reason  stated  In  the  petition  for  the 
appeal  was  that  the  probate  court  had  no 
authority  to  modify  or  set  aside  his  previ- 
ous order  allowing  the  final  account  The 
statute  regulating  appeals  from  probate 
courts  requires  the  appellant  to  state  the  rea- 
sons for  the  appeal.  He  can  urge  no  other 
reason  upon  trial  in  the  appellate  court  In 
re  Ward's  Estate,  152  Mich.  219,  116  N.  W. 
23.  The  Jurisdiction  of  the  probate  court  was 
the  sole  question  submitted  in  the  appellate 
court  The  appellant  did  not  appeal  from 
the  merits. 

The  Judgment  is  therefore  affirmed. 


Digitized  by 


Google 


1082 


122  NORTHWESTERN  RBPOBTER. 


OCldL 


MIMiS  y.  COMMON  CJ0UNC5IL  OF  CITY  OP 

LUDINGTON. 
(Snpreme  Ooart  of  Michigan.     Nor.  5,  1909.) 

IKTOXICATINO   lilQUOBS    (8  48*)  —  SALM  —  LI- 
CENSES—ORDINANCES. 

An  ordinance  designating  places  where  sa- 
loons may  be  licensed,  end  omitting  that  wheie 
petitioner  had  previously  conducted  such  busi- 
ness, this  being  because  there  were  too  many 
saloons  in  such  locality,  and  because  he  had 
been  convicted  of  violating  the  liquor  law,  and 
was  believed  to  have  violated  it  frequently,  and 
because,  on  account  of  the  arrangement  of  his 
place,  violation  of  the  law  without  detection 
was  easy,  is  valid. 

[Ed.  Note. — For  other  cases,  see  Intoxicating 
Liquors,  Cent  Dig.  S  48;  Dec  Dig.  i  46.*] 

AppUcatloii  of  Wllllam  H.  Mills  for  man- 
damus to  the  Common  Council  of  the  City  of 
Ludington.    Writ  denied. 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MOORE,  McALVAX,  and  BROOKE,  JJ. 

L.  B.  Carroll,  for  relator.  Henry  C.  Hut- 
ton  (Michael  G.  Danaber,  of  counsel),  tor  re- 
spondent. 

MOORE,  J.  This  is  an  application  for  a 
mandamus  to  compel  respondent  to  approve 
the  bond  of  the  relator  to  continue  In  the  re- 
tail liquor  business  at  No.  Ill  West  Ludlng- 
ton  avenue,  in  the  dty  of  Lndtngton.  In 
April,  1909,  the  repondent  amended  the  ordi- 
nances of  the  said  city  with  respect  to  fhe 
places  where  the  retail  liquor  business  might 
be  carried  on,  authorizing  the  conduct  of 
such  business  at  18  different  places,  but  not 
at  No.  Ill  West  Lndington  avenue. 

The  ordinance  contains  eight  diflterent  sec- 
tions and  legislates  In  relation  to  three  class- 
es of  saloons.  We  quote  a  part  of  section 
2 :  "Sec.  2.  The  locations  within  the  city  lim- 
its where  saloons  are  herein  dasslfled  may 
be  conducted  and  maintained  on  payment  of 
a  license  fee  as  hereinafter  provided,  are  as 
follows:  First  class:  Saloons  in  which  the 
usual  and  unrestricted  variety  of  drinks  sold 
in  the  ordinary  liquor  saloon  is  dispensed  by 
the  glass  and  where  cigars  or  tobacco  are 
sold  and  used  and  miscellaneous  crowds 
are  allowed  to  congregate  therein,  and  lounge 
about  and  smoke,  eat  or  drink,  and  sit  at 
tables,  and  play  games  or  otherwise  Idly 
spend  their  time,  may  be  licensed  to  carry 
on  their  business  only  at  the  following  places 
within  the  city  limits  of  the  city  of  Ludlng- 
ton."  Then  follow  the  places  where  these 
saloons  may  be  maintained,  and  then  "on 
payment  of  a  license  fee  of  $50  annually  as 
hereinafter  provided."  Saloons  of  the  sec- 
ond class  were  required  to  pay  a  license  fee 
of  $10  annually.  Saloons  of  the  third  class 
were  required  to  pay  an  anAual  fee  of  $10 
and  $5  additional  for  each  pool  or  billiard 
table  or  tenpln  alley  kept  in  connection  there- 
with. 

The  return  of  the  respondent  la  very  long. 


Among  other  things.  It  contains  the  follow- 
ing: "And  the  req^ondent  shows  to  the  court 
that  in  enacting  the  amendment  to  said  ordi- 
nance it  did  not  act  unreasonably,  unfair, 
capricious,  or  without  warrant  of  fact  or 
law,  and  denies  that  it  arbitrarily  and  un- 
justly rejected  the  petitioner's  bond,  and 
denies  that  in  enacting  such  amendment  it 
greatly  injured  and  damaged  the  petitioner, 
or  that  in  so  acting  it  designed  to  injure  or 
damnify  the  petitioner,  but  says  that  the 
amendment  to  the  ordinance  and  its  subse- 
quent action  in  relation  to  the  bond  and  li- 
cense was  had  and  taken  in  good  faith  and 
in  the  interest  of  public  morals  and  order, 
and  to  prevent  violations  of  the  law  and  for 
convenience   in   enforcing  the   liquor   law& 

•  •  •  Respondent  denies  that  the  peti- 
tioner has  always  been  a  law-abiding  citizen 
of  said  city,  as  alleged  in  said  petition,  or 
that  he  Is  a  man  of  good  reputation,  and  de- 
nies that  said  petitioner  has  conducted  the 
liquor  business  In  said  city  in  a  proper  man- 
ner. But,  on  the  contrary,  respondent  says 
that  the  petitioner  has  been  a  violator  of  the 
law;  that  during  the  past  two  years,  and 
during  the  time  when  be  has  been  engaged 
In  the  liquor  business  in  said  building,  be 
has  been  twice  arrested  for  violations  of  the 
liquor  law,  on  one  of  which  occasions  he  was 
convicted  and  paid  a  flne  on  a  plea  of  guilty. 

*  *  *  The  respondeat,  further  answering 
said  i>etition,  denies  that  there  are  no  side 
rooms,  stalls,  or  partitions  in  said  building 
so  used  as  a  saloon,  or  that  the  rear  part 
of  the  same  can  be  readily  seen  from  the 
street,  but  says  that  the  view  is,  obstructed 
by  screens  in  front  thereof,  and  that  there 
Is  built  into  the  side  of  said  building,  and  in 
the  back  part  thereof,  very  large,  high,  cush- 
ioned seats,  facing  each  other.  In  the  nature 
of  stalls,  except  that  the  entrance  thereto  is 
open;  that  any  one  seated  therein  cannot  be 
seen,  unless  the  observer  should  stand  near 
the  entrance  to  the  same;  that  the  building 
In  which  the  saloon  of  the  petitioner  is  locat- 
ed Is  a  double  building,  and  that  the  petition- 
er Is  the  proprietor  of  a  billiard  and  pool 
room,  in  which  there  Is  a  bowling  alley,  and 
said  business  is  carried  on  in  the  room  or 
part  of  the  building  just  east  and  adjoin- 
ing the  petitioner's  saloon;  that  in  said  bil- 
liard room  there  is  also  a  cigar  stand;  that 
this  billiard  and  pool  room  and  bowling  al- 
ley is  resorted  to  and  frequented  by  minors 
and  school  children,  and  that  said  room  i; 
open  Sundays  and  on  legal  holidays;  that 
there  is  a  back  door  to  the  billiard  room, 
convenient  to  the  back  door  of  the  saloon, 
both  of  which  doors  open  on  an  alley;  that 
the  upstairs  or  second  floor  of  the  building 
Is  run  as  a  rooming  house  for  men,  adver- 
tised by  the  petitioner  as  a  'stag  hotel,'  one 
of  the  rooms  of  which  the  petitioner  was  in 
the  habit  of  using  for  saloon  purposes  in 


•For  otber  cases  >ee  >ame  topic  and  lectlon  NUMBER  In  Dec.  ft  Am.  Diss.  1907  to  date,  ft  Roportar  IndezM 


Digitized  by  VjOOQ  l€ 


Mich.) 


GODKIN  ▼.  WEBEEl, 


1083 


the  Bale  of  Intoxicating  Uqnors  on  l^^al  holi- 
days and  after  houra;  that  there  Is  both  a 
back  and  front  aitrance  by  stairs  leading  to 
the  second  floor,  making  the  same  easy  of 
access  from  the  street  and  alley.  Respondent 
shows  that  this  condition  of  the  building 
made  the  violation  of  the  liquor  law  easy,  and 
hard  to  detect,  and  this  respondent  shows, 
upon  Information  and  belief,  that  intoxicating 
liquors  were  by  the  petitioner  frequently  tak- 
-en  from  his  saloon  below  and  sold  in  his 
rooms  above,  contrary  to  law,  and  that  such 
sales  were  made  upon  legal  holidays  and  on 
Sundays  In  violation  of  law;  •  •  •  that 
the  billiard  and  pool  room  of  the  petitioner  is 
frequented  by  young  men  on  legal  holidays 
and  after  hours,  to  wit,  after  the  hour  when 
by  law  the  saloon  of  the  petitioner  is  obliged 
to  be  closed,  and  that  the  proximity  of  the 
back  door  of  the  billiard  room  to  the  back 
door  of  the  saloon  renders  it  easy  to  gain 
an  entrance  to  the  saloon  after  hours;  that 
upon  these  considerations,  and  because  there 
were  too  many  saloons  in  the  vicinity  of  this 
location,  and  because  a  saloon  in  such  loca- 
tion was  a  nuisance,  it  was  considered  that 
the  premises  of  the  petitioner  was  not  a  fit 
place  in  which  to  lodge  a  business  so  destruc- 
tive to  the  public  morals  of  the  city,  and  In 
which  the  law  might  be  so  easily  and  was  so 
frequently  violated,  and  thereupon  the  ordi- 
nance of  the  city  v^as  amended,  prescribing 
locations  suitable  for  saloons  in  said  city, 
which  did  not  include  the  location  of  relator 
and  certain  other  locations  where  saloons 
bad  been  kept" 

It  is  the  claim  of  relator  that  the  action  of 
the  respondent  is  invalid,  under  Kenaston  v. 
Rlker,  146  Mich.  163,  109  N.  W.  278,  and 
Pitzpatrlck  v.  Weaver,  147  Mich.  382,  111 
N.  W.  163.  An  examination  of  those  cases 
wUl  show  they  are  easily  distinguishable. 
The  case  before  us  is  within  the  principles 
announced  in  Sherlock  v.  Stuart  et  al.,  96 
Mich.  193,  65  N.  W.  845,  21  I*  R.  A-  680. 
The  action  of  the  respondent  was  Clearly 
within  its  powers. 

The  writ  of  mandamus  is  denied,  with 
costs. 


GODKIN  V.  WEBER. 
{Snpreme  Court  of  Michigan.     Nov.  5,  1909.) 

1.  Sales  (§  181*)  — Actions— Sufficienot  of 
bvidence. 

Evidence,  in  an  action  for  the  price  of  lum- 
ber, held  to  alrow  acceptance  by  the  buyer  of 
6,435  feet  as  merchantable  lumber,  imposing  a 
liability  therefor. 

[Ed.  Note.— For  other  cases,  see  Sales,  Dec. 
Dig.  fi  181.*] 

2.  SET-OFF     Ann      C50UNTEBCI.AIK     (|     40*)    — 

(Xaims  Abisinq  Afteb  Ck>iniENCEmNi  of 

Action. 

Under  Comp.  Iaws  1897,  I  10,075,  subd. 
4,  allowing  a  set-off,  where  existine  at  the  com- 
mencement of  the  action,  a  claim  for  storage  of 


lumber,  beginning  after  commencement  of  an 

action  for  its  price,  is  not  available  as  a  set-off. 
[Ed.  Note. — For  other  cases,  see  Set-Off  and 
Couuterclahn,  Cent  Dig.  Si  73-75;   Dec  Dig.  { 
40.*] 

.  Error  to  Circuit  Court,  Wayne  County; 
Charles  H.  Wisner,  Judge. 

Action  by  John  Godkln  against  Joseph 
Weber.  Judgment  for  plalntifF,  and  defend- 
ant brings  error.    Affirmed. 

Argued  before  BLAIR,  C  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDER,  and  HOOK- 
ER, JJ. 

Jasper  0.  Gates,  for  appellant  Lee  B. 
Joslyn,  for  appellee. 

BLAIR,  Ol  J.  The  principal  facts  neces- 
sary to  an  understanding  of  this  case  are 
fully  stated  in  the  opinions  filed  on  the  pre- 
vious hearing.  Godkin  v.  Weber,  154  Mich. 
207,  114  N.  W.  924,  117  N.  W.  628,  20  L.  R. 
A.  (N.  S.)  498.  On  the  second  trial  the  cir- 
cuit Judge  directed  a  verdict  for  plaintiff 
for  the  value  of  6,435  feet  of  lumber,  taken 
from  29,332  feet  of  culls  and  claimed  by 
plaintiff  to  have  been  made  merchantable  by 
cutting  off  bad  ends,  etc.  On  this  branch 
of  the  case,  by  agreement  of  counsel,  the  only 
question  reserved  for  our  consideration  Is 
whether  there  was  any  evidence  at  all  to 
sustain  the  finding  of  the  circuit  judge  that 
defendant  was  liable  for  this  6,435  feet 

The  evidence  tended  to  show  that  plaintiff, 
before  shipping  the  lumber,  bad  the  right  to 
cut  the  ends  off  and  thereby  make  the  lum- 
ber merchantable;  but  It  conclusively  appear- 
ed that  he  had  no  right  to  do  so  after  it  went 
into  the  customer's  yard.  "It  would  all  have 
to  be  considered  cull  lumber  with  rotten 
ends."  It  appeared,  however,  that  defend- 
ant's inspector  assisted  plaintiff's  inspector 
in  marking  off  the  6,435  feet,  and  on  Febru- 
ary 22,  1905,  defendant  wrote  to  plaintiff  a 
letter  containing,  among  other  things,  the 
following:  "We  are  willing  to  accept  your 
inspector's  decision,  paying  for  merchantable 
at  $13.50  and  the  culls  at  $9.  This  latter  is 
60  cents  less  than  our  former  offer,  as  after 
your  inspector  sorted  out  the  upper  line 
culls  It  leaves  a  very  bad  lot  indeed.  •  •  • 
We  have  not  as  yet  cross-cnt  and  ripped  the 
culls  your  man  laid  out  so  as  to  secure  his 
5,424  feet  of  No.  2.  This  will  cost  another 
$5.  The  offer  made  by  us  to  Mr.  Allan  was 
based  on  these  figures,  together  with  l\ti 
per  cent  discount  He  tells  us  you  have 
refused  it  Such  being  the  case,  you  have 
22,492  feet  culls  hemlock,  claimed  in  one  of 
your  letters  as  your  property,  on  our  yard. 
Storage  on  same  begins  to-day  at  $2  per 
day.  It  is  very  much  in  our  way,  as  in  the 
reinspection  it  was  placed  in  small  piles  in 
several  alleys,  and  it  must  be  moved,  being 
directly  in  our  way.  Just  as  soon  as  you 
remove  the  culls,  or  adjust  same  so  we  may 


•For  oUiar  cas««  •«•  lams  toplo  and  sacUon  NUMBEB  In  Dae.  *  Am.  Dig*.  1907  to  data,  ft  Raportar  lada 


Digitized  by  VjOOQ  l€ 


1084 


"l22  NORTHWESTERN  REPORTER. 


(Mich. 


arrlvB  at  the  amonnt  due,  we  will  mall  onr 
check."  Although  in  a  prevlons  letter  de- 
fendant had  denied  the  right  of  plalntift  to 
make  merchantable  lumber  by  cutting  o£F  bad 
ends,  we  think  the  letter  above  quoted  from 
was  some  evidence  tending  to  show  an  ac- 
ceptance of  the  6,435  feet  as  merchantable 
lumber  and  a  limiting  of  the  colls  to  22,492 
feet  We  are  of  the  opinion,  therefore,  that, 
under  the  agreement  of  counsel,  the  court 
did  not  err  on  this  branch  of  the  case. 

It  remains  to  consider  whether  the  court 
erred  in  refusing  to  permit  the  Jury  to  con- 
sider the  defendant's  claims  for  storage  and 
exx>enses  under  his  special  notices  of  set-off 
and  recoupment  Plaintiff  commenced  this 
suit  February  23, 1905.  Defendant's  plea  and 
the  original  notices  were  filed  May  18, 
1905.  A  reading  of  the  notice  of  recoupment 
clearly  discloses  that  It  was  not  Intended 
thereby  to  claim  any  damages  for  storage. 
The  charges  for  storage  were  set  forth  in 
the  bill  of  particulars  of  the  original  set-off, 
and  in  the  notice  of  set-off  pleaded  puis  dar- 
rein continuance  on  the  11th  day  of  Febru- 
ary, 1909.  That  the  circuit  judge  under- 
stood that  only  the  defendant's  claim  of  set- 
off was  before  the  court  for  consideration  is 
plainly  evidenced  by  his  remarks  in  disposing 
of  the  case,  and  that  defendant's  counsel  so 
understood  is  shown  by  his  remark  at  that 
time:  "It  Is  understood  here  that  we  offer 
to  prove  our  set-off.  Court:  It  was  fully 
understood  in  the  statement  I  think  it  was 
Induded.  There  Is  no  question  about  it" 
The  bill  of  particulars  filed  May  18,  1905, 
contained  the  following:  "Storing  of  said 
29,392  feet  of  culls,  from  Feb.  28  to  date, 
84  days,  at  $2.00  per  day,  $168.00."  The 
charges  for  storage  beginning  with  February 
28,  1905,  five  days  after  the  commencement 
of  suit,  the  circuit  judge  correctly  held  that, 
under  the  provisions  of  section  10,075,  subd. 
4,  Comp.  IjSws,  they  could  not  be  considered. 

The  judgment  Is  afSrmed. 


LAWRENCE  v.  HERALD  PUB.  CO.  «t  al. 
(Supreme  Court  of  Michigan.     Nov.  6,  1909.) 

1.  lilBEI,  ANO  Slandeb  (S  48*)— Pbivilbobd 
iStaTEMERIS  — COIOIENT  Olf  PUBUO  Mat- 
TEB8. 

The  public  conduct  of  public  men  is  prop- 
erly subject  to  legitimate  discussion. 

[Ed.   Note. — For  other  cases,   see   Libel   smd 
Slander,  Cent  Dig.  |  145 ;    Dec  Dig.  i  48.*] 

2.  Libel  and  Slander  (|  48*)— PBirnxaEn 
CoMMcnriCATioNs. 

The  board  of  police  and  fire  commissloneis 
of  a  city  was  by  the  charter  bound  to  report  ap- 
plications to  it  for  saloon  licenses  to  the  city 
council,  with  its  recommendation  thereon.  The 
board,  while  plaintiff  was  a  member,  established 
a  system  of  tabulating  information  respecting 
the  conduct  of  saloons,  obtained  by  policemen, 
and  reported  on  cards  known  as  the  card  sys- 
tem, watch  system  was  subsequently  abolished 
by  the  board  while  defendant  EX  was  mayor. 


An  account  of  the  field  day  «f  the  Anti-Saloon 
League  severely  criticised  Ea  and  his  adminia- 
tratlon  for  abolishing  the  system,  but  plaintiff, 
whose  term  had  expired,  was  not  mentioned,  nor 
was  the  origin  of  the  system  discussed ;  and  it 
did  not  a^vpear  that  plaintiff  attended  the  field 
day  meetings  or  had  any  iMirt  therein.  There- 
after defendant  newspaper  published  an  inter- 
view with  E.  regarding  the  attacks  made  on  him 
in  the  field  day,  reading:  "Somebody  is  either 
woefully  ignorant  or  else  willfi)lly  misstates  my 
position  in  regard  to  this  card  system.  •  •  • 
The  abolition  of  the  card  system  as  formerly 
operated  was  merely  what  any  honest  adminis- 
tration would  have  demanded.  •  •  •  Xam- 
many  used  such  a  system  so  they  could  put  the 
screws  on  the  criminal  classes  when  in  need  of 
money  or  votes.  *  *  *  I  suppose  when 
[plaintifE]  and  B.  established  this  system  here 
they  thought  the  Democrats  would  remain  in 
power  and  they  would  build  np  a  little  Tam- 
many of  their  own,"  etc.  Held,  that  the  article 
was  not  qnalifiedly  privileged. 

[E2d.  Note. — For  other  cases,  see  Libel  and 
Slander,  Cent  Dig.  |{  144-147;  Dec.  Dig.  | 
48.*] 

3.  Libel  and  SLAnoEB  (J  123*)— Retbactiok 
— Qtn:STioNS  tob  Jubt. 

Whether  the  retraction  of  a  libel  was  pnb- 
lished  so  far  as  practicable  in  the  same  position 
as  the  original  publication,  or  in  a  reasonable 
time,  or  whether  in  the  retraction  defendant 
made  such  amends  as  were  reasonable  and  prop- 
er under  the  circumstances  of  the  case,  aa  re- 
quired by  Comp.  Laws  1887,  }  10,425,  are  ques- 
tions for  the  Jury. 

[E>].  Note.— For  other  cases,  see  libel  and 
Slander,  Dec.  Dig.  I  123.*] 

4.  Appeal  and  Ebbob  ($  lOST*)— Habiiless 
Ebbob. 

In  a  libel  action,  where  plaintiff  was  enti- 
tled to  have  the  case  tried  agiinst  both  defend- 
ants, error  In  rulings,  whereby  one  of  defend- 
ants was  released  from  liability,  was  not  harm- 
less, though  plaintiff  recovered  against  the  other 
defendant,  who  was  financially^  responsible,  all 
he  was  entitled  to  recover  against  both. 

[Eld.  Note.- For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  I  4083;    Dec.  Dig.  |  1027.*J 

Error  to  Circuit  Conrt,  Kent  County; 
Willis  B.  Perkins,  Judge. 

Action  by  John  S.  Lawrence  against  the 
Herald  Publishing  Company  and  another. 
Judgment  for  defendants,  and  plaintUf 
brings  error.  Reversed,  and  new  trial  or- 
dered. 

Argued  before  BLAIR,  G  J.,  and  GRANT, 
MONTGOMERY.  HOOKER,  and  MOORE, 
JJ. 

Smedley  &  Corwin,  for  appellant  M.  L. 
Dunham  and  Joseph  Renihan,  for  appellee 
Oeorge  E.  Ellis.  Taggart,  Denlson  &  Wilson 
(William  Alden  Smith,  of  counsel),  for  ap- 
pellee Herald  Pub.  Co. 

MOORE,  J.  This  Is  an  action  for  libel. 
The  plaintiff  resides  in  Grand  Rapids.  He 
is  sixty  years  of  age.  He  is,  and  has  been 
for  a  long  time,  a  man  of  prominence  polit- 
ically and  In  a  business  way.  He  was  a 
member  of  the  board  of  police  and  fire  com- 
missioners of  the  dty  of  Grand  Rapids  from 
May,  1905,  to  May,  1907,  and  was  widely 
known  in  Western  Michigan.    The  defmdant 


•For  other  cans  le*  tame  topic  and  section  NUMBER  In  Dae.  *  Am.  Dies.  U07  t«  data,  *  Saportsr  XaAexts 


Digitized  by  VjOOQ  l€ 


Ulch.) 


LAWRENCE  ▼.  HBSALD  PUB.  00. 


1085 


Ellis  18  mayor  of  Grand  Rapids,  and  was 
first  elected  In  April,  1906,  and  re-elected  In 
April,  1908.  By  virtue  of  his  office  as  mayor 
be  is  a  member  of  ttie  Iward  of  pollco  and 
flre  commissioners,  but  lias  no  vote.  The 
defendant  tlie  Herald  Publishing  Company 
publishes  a  daily  newspaper  called  "The 
Grand  Bapids  Herald."  This  newspaper  has 
a  circulation  of  more  than  30,000  copies, 
two-thirds  of  which  is  outside  of  Grand  Rap- 
ids. By  the  amended  charter  of  Grand 
Rapids,  which  went  Into  effect  in  1905,  it 
was  provided  that  applications  for  licenses  to 
sell  intoxicating  llqnor  in  Grand  Rapids 
should  be  made  to  the  board  of  police  and 
flre  commissioners,  who  should  report  such 
applications  to  the  common  council,  with  a 
recommendation  thereon,  15  days  after  their 
filing.  The  board  decided  to  establish  a  sys- 
tem of  tabulating  information  respecting  the 
conduct  of  the  saloons,  obtained  by  police- 
men on  their  two  weeks'  beats,  and  reported 
on  cards  known  as  the  card  system.  The 
plaintiff  was  a  member  of  the  board  at  this 
time.  Defendant  E/llis  was  opposed  to  the 
card  system,  and  in  the  month  of  May,  1008, 
it  was  abolished  by  a  formal  vote  of  the 
board.  The  mayor  was  severely  criticised 
for  this  action.  On  Sunday  the  24th  day  of 
May,  1908,  a  large  number  of  pulpits  in 
Grand  Rapids  were  filled  by  representatives 
of  the  so-called  Anti-Saloon  League;  the  oc- 
casion being  what  was  known  as  their  second 
annual  "field  day."  An  account  of  this  field 
day  was  given  In  the  Grand  Rapids  Herald 
the  following  morning.  The  article  is  too 
long  to  quote  here.  It,  however,  criticised 
Mayor  EHUs  and  his  administration.  Neither 
the  plaintiff  nor  Charles  H.  Bender  was  men- 
tioned therein,  nor  was  the  origin  of  the 
card  system  discussed.  The  plaintiff  had 
not  been  a  police  commissioner  for  over  a 
year.  It  nowhere  appears  in  the  record  that 
be  had  been  referred  to  in  any  way  In  the 
meetings  of  which  the  article  was  an  ac- 
count, or  that  he  had  been  present  at  any  of 
them.  On  the  morning  of  May  26,  1908,  the 
Grand  Rapids  Herald  contained  an  Interview 
with  the  defendant  Ellis,  which  Is  the  basis 
of  this  litigation,  a  part  of  which  reads  as 
follows:  "  'Somebody  is  either  woefully  ig- 
norant or  else  willfully  misstates  my  position 
in  regard  to  this  card  system,'  said  Mayor 
Ellis  yesterday  In  discussing  the  attacks 
made  upon  him  in  the  Antl-Saloon  field  day 
of  Sunday.  'The  abolition  of  the  card  system 
as  formerly  operated  was  merely  what  any 
honest  administration  would  have  demanded. 
I  know  of  no  city  in  America  in  which  there 
Is  an  honest  administration  in  which  they 
have  such  a  system  of  spotting  saloon  keep- 
ers. Tammany  used  such  a  system  so  they 
could  put  the  screws  on  the  criminal  classes 
when  in  need  of  votes  or  money.  Mayor 
Schmitz  of  San  Francisco  used  such  a  sys. 
tern  so  he  could  extort  money  for  his  per- 
sonal use  from  the  criminal  classes.  I  sup- 
pose when  John  E.  Lawrence  and  Charles  | 


H.  Bender  established  this  system  here  they 
thought  the  Democrats  would  remain  In  pow- 
er and  they  wonld  bnild  up  a  little  Tam- 
many of  their  own.  But  the  people  declared 
for  an  honest  administration,  and  that  ad- 
ministration, which  will  not  take  a  penny 
from  the  saloon  keepers  for  campaign  or  oth- 
er purposes,  and  which  will  not  borrow 
money  of  them,  has  knocked  out  the  card 
system  as  it  was  formerly  operated,  and  de- 
mands a  system  by  which  the  saloon  can  be 
kept  track  of  every  day,  and  punished  as 
often  as  they  violate  the  law.'  "  The  plaintiff 
read  this  article  the  morning  of  its  publica- 
tion, and  on  the  same  day  demanded  a  re- 
traction from  each  of  the  defendants.  There  - 
appeared  on  May  28,  1908,  in  defendant's 
newspaper  an  editorial,  which  Is  claimed  to 
be  a  complete  retraction  on  its  part  Of  the 
libel  in  compliance  with  the  statute  (section 
10,425,  Comp.  Laws),  and  was  so  ruled  to  be 
by  the  court  It  is  not  necessary  to  quote 
this  editorial  at  length. 

Mr.  Ellis  sent  a  letter  to  plaintiff,  which 
no  one  claims  to  be  a  retraction.  He  denied 
therein  that  he  gave  the  Interview  as  pub- 
lished. The  plaintiff  then  commenced  this 
suit.  Each  of  the  defendants  pleaded  the 
general  issue.  The  defendant  Ellis  added  a 
notice  that  he  would  "give  evidence  in  his 
defense  that  the  alleged  publication  is  privi- 
leged, if  made  as  alleged."  The  defendant 
Herald  Publishing  Company  gave  a  like  no- 
tice during  the  progress  of  the  trial.  Neither 
defendant  pleaded  justification.  The  jury 
found  a  verdict  of  no  cause  of  action  against 
the  Herald  Publishing  Company,  and  of 
$313.70  against  the  defendant  Ellis,  divided 
equally  between  damages  to  feelings  and 
damages  to  reputation.  The  case  is  brought 
here  by  writ  of  error.  All  assignments  of 
error  are  waived,  except  those  discussed  un- 
der the  following  heads:  "(1)  That  the  ar- 
ticle was  not  qualifledly  privileged  as  charg- 
ed by  the  circuit  judge;  (2)  that  the  editorial, 
published  by  the  Herald  Publishing  Com- 
pany, in  response  to  plaintifTs  demand  for  a 
retraction,  did  not  comply  with  the  statute, 
and  was  not  in  the  nature  of  a  retraction  in 
Its  subject-matter."  Defendant  Ellis  did  not 
appeal,  and  it  is  difficult  to  tell  from  the 
brief  filed  upon  his  behalf  what  his  desire  is 
in  relation  to  the  case  presented  here.  Conn- 
sel  for  the  Herald  Publishing  Company  argue 
a  third  proposition,  to  wit,  "If  error  was 
committed,  the  plaintiff  was  not  prejudiced." 
We  win  discuss  the  assignments  of  error. in 
the  order  presented  by  counsel. 

1.  Was  the  article  qualifledly  privileged? 
The  appellee  answers  this  question  affirma- 
tively, and  Insists  that  Mr.  Lawrence  and 
Mr.  Bender  had  established  the  card  system 
in  Grand  Rapids,  that  it  was  their  system, 
and  a  matter  of  public  concern,  and  that  the 
system  and  'plaintiff's  connection  with  it 
were  subjects  of  legitimate  discussion,  citing 
Odgers  on  Libel  and  Slander,  p.  40,  and  25 
Cy&  402.    A.  reference  to  these  authorities 


Digitized  by  VjOOQ  l€ 


1086 


122  NOBTHWESTEBN  REPOBTSR. 


(Mlcb. 


will  shotr  they  do  not  suataln  the  mUns  of 
the  court  below,  and  the  position  of  connsel 
Just  stated.  Undoubtedly  the  public  conduct 
of  public  men  Is  properly  subject  to  legiti- 
mate discussion.  What  Is  legitimate  dis- 
cussion? The  question  is  not  new  in  this 
state.  The  language  of  Justice  Campbell  in 
MacLean  t.  Scrtpps,  52  Mich.  214,  17  N.  W. 
815,  18  N.  W.  209,  Is  pertinent:  "Defendant 
claims  that  the  article  was  absolute  privi- 
leged. The  court  held  it  was  privileged,  un- 
less shown  to  be  both  false  and  published 
without  good  motives  and  maliciously.  That 
a  person  may  publish  falsehoods  of  another 
who  occupies  a  position  in  which  his  conduct 
is  open  to  public  scrutiny  and  criticism,  with- 
out any  reference  to  the  object  to  be  secured 
by  the  publication,  Is  a  doctrine  which  has 
no  foundation  that  we  have  been  able  to  dis- 
cover. Whether  this  article,  taken  as  a 
whole,  was  privileged  until  reason  was 
shown  to  the  contrary  is  not  now  important, 
and  need  not  be  discussed,  because  the  plain- 
tiff is  not  the  complaining  party,  and  the 
ruling  below  went  as  far  as  possible  to  hold 
It  so.  That  the  privilege  is  lost  by  malice  is 
elementary  law  in  such  cases.  The  question 
which  the  court  below  discussed,  and  which 
is  discussed  here,  la  whether  the  malice  must 
be  actual  personal  ill  will  to  plaintiff,  or 
whether  the  publication  of  what  Is  necessar- 
ily Injurious,  and  done  purposely  and  know- 
ingly, and  not  for  any  good  purpose  or  Jus- 
tifiable end,  is  legally  malicious  within  the 
law  of  libel.  Upon  this  we  think  there  Is  no 
room  for  serious  question.  The  term,  'ma- 
licious' cannot  be  improper  to  designate  a 
willful  injury  without  Just  reason.  It  is 
not  claimed  that  there  is  any  room  to  ques- 
tion the  Injurious  character  of  this  article. 
Neither  can  it  be  questioned  that  the  willful 
publication  of  it  necessarily  Involves  a  de- 
sign to  produce  such  injury  as  Is  a  necessary 
consequence  of  It  This  being  so,  it  would  be 
a  violation  of  all  the  analogies  of  legal  lan- 
guage to  hold  that  a  willful  injury  is  not 
malicious.  If  made  without  any  good  cause.'' 
In  Belknap  v.  Ball,  83  Mich.  583,  47  N.  W. 
674,  11  L.  R.  A.  72,  21  Am.  St  Rep.  622,  It 
was  held  that  publications  of  falsehoods  are 
never  privileged.  To  the  same  effect  Is  Owen 
V.  Dewey,  107  Mich.  67,  65  N.  W.  &  There 
is  a  full  discussion  of  the  law  of  libel  in 
Brewer  v.  Chase,  121  Mich.  526,  80  N.  W. 
575,  46  Ia  R.  A.  397,  80  Am.  St  Rep.  627  and 
a  collation  of  authorities. 

In  Smedley  v.  Soule,  125  Mich.  192,  84  N. 
W.  63,  Justice  Grant,  speaking  for  the  court 
said:  "It  is  urged  that  the  publication  was 
one  of  qualified  privilege.  This  is  not  a  case 
for  the  application  of  the  rule  of  privilege, 
absolute  or  qualified.  Defendants  aU  admit- 
ted that  they  had  no  ground  whatever  for 
charging  plaintiff  with  bring  a  party  to  this 
corrupt  agreement  On  the  contrary,  they 
admitted  in  open  court  that  plaintiff  was  in 
no  way  connected  with  the  mayor  In  the 
controversy    between   the   mayor   and   the 


conncU.  The  only  defense  they  could  make 
for  the  publication  of  such  an  article  would 
be  its  truth,  or  their  honest  belief  of  its 
truth.  But  when  It  Is  admitted  that  they 
had  no  foundation  for  such  belief,  the  ques- 
tion of  privilege  Is  excluded  fr«Mn  considera- 
tion; and  the  court  correctly  charged  the 
Jury  that  the  defendants  were  liable  for 
whatever  damages  plaintiff  sustained  by  vir- 
tue of  its  publication."  The  plaintiff  was  a 
public  officer.  So  far  as  the  record  shows  he 
did  not  attend  the  antlsaloon  field  day  meet- 
ings, nor  have  any  part  therein.  There  Is 
nothing  in  the  record  to  show  any  justifica- 
tion for  the  reference  made  to  him  by  the 
mayor,  and  no  authority  has  been  called  to 
our  attention  which  gave  to  the  newspaper 
the  privilege  to  r^)eat  this  interview  In  its 
more  than  30,000  copies. 

2.  Was  the  editorial  published  a  com- 
pliance with  the  statute?  Section  10,425, 
Comp.  Laws,  reads  as  follows:  "No  exem- 
plary or  punitive  damages  shall  be  recovered 
unless  the  plaintiff  shall  before  brluging  suit 
give  notice  by  mall  or  otherwise  to  the  de- 
fendant to  publish  a  retraction  of  the  libel, 
and  allow  the  defendant  a  reasonable  time 
in  which  to  publish  such  retraction,  and 
make  such  amends  as  are  reasonable  and 
possible  under  the  circumstances  of  the 
case ;  and  proof  of  the  publication  or  correc- 
tion shall  be  admissible  in  evidence  under 
the  general  issue  on  the  question  of  the  good 
faith  of  the  defendant  and  In  mitigation 
and  reduction  of  exemplary  or  punitive  dam- 
ages: Provided,  that  the  retraction  shall 
be  published  in  the  same  type  and  In  the 
same  editions  of  the  paper  as  the  original 
libel,  and  so  far  as  practicable  in  the  same 
position."  The  trial  court  held  that  the  edi- 
torial which  was  published  in  response  to 
the  demand  for  a  retraction  was  a  full  and 
complete  compliance  with  the  provisions  of 
the  above  section  of  the  statate.  The  case 
of  Couch  V.  Mining  Journal,  130  Mich.  294, 
89  N.  W.  936,  is  authority  for  the  statement 
that,  where  a  retraction  is  In  writing,  it  is 
for  the  court  to  construe,  but  we  do  not 
understand  it  to  be  authority  for  the  propo- 
sition that  the  court  is  to  say,  as  a  matter 
of  law,  that  the  retraction  was  published  so 
far  as  practicable  in  the  same  position  as  the 
original  publication,  or  that  it  was  published 
in  a  reasonable  time,  or  that  in  the  publica- 
tion which  was  made  the  defendant  made 
such  amends  as  are  reasonable  and  proper 
under  the  circumstances  of  the  case.  This 
feature  of  the  case  presented  a  question  of 
fact  and  was  for  the  Jury. 

3.  If  error  was  committed,  was  It  error 
without  prejudice,  as  contaided  for  by  the 
attorneys  for  appellee?  Tlielr  argument  Is 
as  follows — we  quote  from  the  brief:  "This 
Is  a  Joint  suit  against  the  Herald  and  Mr. 
Ellis.  The  court  instructed  the  jury  that  a 
verdict  might  be  rendered  a.^ainst  both  de- 
fendants, or  against  either  one;  that  if  a 
judgment  was  rendered  against  both  defend- 


Digitized  by  VjOOQ  l€ 


Mlcb.) 


YOUNQQUIST  t.  O.  H.  BLOMSTBOM  MOTOR  OO. 


1087 


ants.  It  must  be  a  Joint  one  for  the  same 
amount  No  complaint  is  made  on  this  rul- 
ing. •  •  •  The  Jury  rendered  a  verdict 
against  Mr.  Ellis  for  $313.70,  so  that  It  nec- 
essarily reached  the  conclusion  that  in  giv- 
ing out  the  interview  Mr.  Ellis  was  actuated 
by  express  malice ;  and,  under  the  charge  of 
the  court,  the  Jury  assessed  against  Mr.  E71- 
lis  all  of  the  damages  which  Mr.  Lawrence 
had  actually  suffered,  and  added  to  these 
actual  damages  'such  an  amount  as  you  think 
plaintiff  is  entitled  to  recover  on  account  of 
such  malidouB  publication.'  *  •  •  The 
plaintiff  cannot  collect  his  damages  twice. 
He  has  sued  two  persons  Jointly,  and  got  a 
Judgment  against  one  for  the  entire  amount 
to  which,  under  any  theory,  he  is  entitled. 
It  Is  not  claimed,  and  will  not  be  claimed 
for  a  moment,  that  his  Judgment  against 
Mr.  Ellis  is  not  collectible;  that  the  latter 
la  not  financially  responsible."  In  the  sup- 
plemental brief  counsel  say  they  are  ready 
to  waive  any  costs  against  plaintiff  to  which 
they  may  be  entitled  on  the  Judgment  ren- 
dered in  the  court  below.  These  various 
propositions  of  counsel  do  not  seem  to  us 
conclusive.  As  already  appears,  there  was 
substantial  error  committed  by  the  trial 
court.  The  plaintiff,  as'  he  bad  a  right  to  do, 
sued  both  defendants.  He  also  had  the  right 
to  have  his  case  tried  against  both  Of  them 
according  to  the  rules  of  law.  This  right 
has  not  been  given  him. 

Judgment  is  reversed,  and  new  trial  or- 
dered. 


HICKS  et  al.  t.  3.  B.  PEARCB  CO.  et  al. 
(Supreme  Court  of  Michigan.     Nov.  5,  1909.) 
Appeal  aud  Ebbob  (g  781*)  —  Dibkibbai.  of 

BlIX— IRJUNCTION— DiSUISBAI.  OF  AFPBAI.. 

Where,  in  a  suit  to  restrain  a  sale  under 
a  diattel  mortgage,  the  court  ordered  complain- 
ant to  file  a  bond  to  pay  the  indebtedness  with- 
in a  specified  time  as  a  condition  to  a  continu- 
ance of  the  temporaiy  order  restraining  the 
sale,  and  providing  that  on  fallnre  to  do  so  the 
bill  should  be  dismissed,  and  complainant  failed 
to  file  the  bond,  and  the  sale  of  the  chattels  as 
advertised  occurred,  an  appeal  from  a  decree  sub- 
seqnently  rendered  dismissing  the  bill  will  be 
dismissed,  because  the  purpose  for  which  an 
injunction  could  be  issued  did  not  exist. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  $  8122;   Dec.  Dig.  I  781.*] 

Suit  by  Wilson  H.  Hicks  and  another 
against  the  J.  B.  Pearce  Company  and  anoth- 
er. From  a  decree  dismissing  the  bill,  com- 
plainants appeal.  On  motion  to  dismiss  ap- 
X)eal.    Granted. 

Argued  before  MONTGOMBRX,  OSTRAN- 
DER,  HOOKER,  MOORE,  and  McALTAY, 
JJ. 

Wade  Mlills,  for  the  motion.  Firmon  Lush, 
opposed. 

MONTOOMERT,  J.  l%la  Is  ft  motion  to 
dismiss  an  appeal  from  a  decree  of  the  court 


below  dismissing  the  complainants'  bllL  The 
defendant  Pearce  held  a  mortgage  upon  x)er- 
Bonal  property.  The  defendant  Whitney  was 
the  agent  of  the  Pearce  Company.  On  the 
20th  of  December,  1907,  Whitney,  acting  for 
the  company,  took  possession  of  the  proper- 
ty covered  by  the  chattel  mortgage,  and  ap- 
praised the  same,  and  proceeded  to  advertise 
the  sale  thereof.  Complainants  thereupon  fil- 
ed this  bill  to  restrain  the  sale;  that  being 
the  sole  purpose  of  the  bill.  A  temporary  re- 
straining order  was  issued ;  but  a  motion  was 
immediately  entered  to  vacate  the  restraining 
order,  and  on  the  27th  of  December,  the  cir- 
cait  Judge  made  an  order  requiring  the  appel- 
lants to  file  a  bond  to  pay  the  Indebtedness 
within  24  hours  as  a  condition  to  a  continu- 
ance of  the  order  in  force,  and  providing  that 
upon  failure  to  do  so  the  bill  of  complaint 
should  be  dismissed.  The  bond  was  not  fil- 
ed, and  on  the  28th  of  December  the  sale  oc- 
curred as  advertised.  On  the  7th  of  January, 
1908,  attention  of  the  court  was  called  to  the 
fact  that  the  bond  had  not  been  filed,  and  an 
order  made  dismissing  the  complainants'  bill 
of  complaint 

It  is  stated  In  High  on  Injunctions  (4th 
Ed.)  vol.  2,  {  1701a:  "Where  an  appeal  is 
taken  from  an  order  dissolving  or  denying  a 
preliminary  injunction,  or  dismissing  the  bill, 
and  pending  the  appeal  the  act  sought  to  be 
restrained  has  been  accomplished,  that  fact 
upon  being  brought  to  the  attention  of  the 
reviewing  court  by  motion,  supported  by  affi- 
davit, affords  sufficient  ground  for  dismissing 
the  appeal."  See,  also.  Railway  Co.  v.  Wild- 
man,  58  Mich.  286,  25  N.  W.  193. 

It  is  suggested  that  the  decree  dismissing 
the  bill  constitutes  an  adjudication.  It  is 
true  the  decree  dismissing  the  bill  was  in  the 
ordinary  form  and  contained  no  reservation 
of  rights;  but  we  do  not  understand  that 
this  was  an  adjudication  of  anything  more 
than  that  the  complainants  were  not  entitled 
to  relief  by  injunction.  It  does  not  conclude 
complainants  in  a  suit  at  law  from  recover- 
ing damages,  if  the  terms  of  the  mortgage 
were  not  such  as  to  Justify  the  action  taken 
by  the  defendants.  We  see  no  purpose  that 
could  be  served  by  continuing  this  case  In 
court 

The  order  prayed  for  will  be  granted. 


YOUNGQDIST  v.  a  H.  BLOMSTROM 

MOTOR  CO.  et  al. 

(Supreme  Court  of  Michigan.    Nov.  6,  1909.) 

CONTBA.CTB  (}  350*)   —  ABANDONMENT  —  EVI- 
DENCE. 

Evidence  in  a  suit  based  on  a  contract,  by 
which  complainant  was,  for  an  interest  in  the 
patent,  to  furnish  the  money  necessary  for  de- 
fendant's constructing  an  automobile  model,  and 
getting  it  patented,  held  to  show  that,  after  com- 
plainant had  put  in  a  small  and  insufficient 
amount  he  abandoned  the  contract  and  gav»  his 
consent  which  was  acted  on,  for  defendant  to 


•irer  eUiar  cases  sm  same  topic  sad  section  NUMBER  in  Dec.  A  Am.  Digs.  1M7  to  date,  *  Reporter  Indeze* 


Digitized  by  VjOOQ  l€ 


1088 


122  NORTHWBSTBBN  BEPOBTER. 


^Ilch. 


make  arransements  with  others  to  carry  oat  his 
plans. 

[Ed.  Note. — For  other  cases,  see  Contracts, 
Cent  Dig.  U  1819-182S;    Dec.  Dig.  {  350.*] 

Error  to  Clrcnlt  Court,  Wayne  County; 
Joseph  W.  Donovan,  Judge. 

Suit  by  Orrln  O.  Youngqoist  against  the  C. 
H.  Blomstrom  Motor  Company  and  others. 
Decree  for  complainant  Defendant  Charles 
H.  Blomstrom  appeals.  Reversed',  and  suit 
dismissed. 

Argued  before  GRANT,  UONTGOMERY, 
OSTRANDER,  HOOKER,  and  MOORE,  JJ. 

Oscar  M.  Springer,  for  appellant  Bowen, 
Douglas,  Whiting  &  Eoman,  for  appellee. 

MOORE,  J.  Prior  to  and  in  October,  1900, 
the  complainant  was  a  practicing  physician 
living  at  Marquette,  Mich.  His  cousin  the 
defendant  Cliarles  H.  Blomstrom  was  also  a 
resident  there.  Mr.  Blomstrom  was  the  de- 
signer and  general  manager  of  the  Lake  Shore 
Engine  Works.  During  his  leisure  time  he 
was  engaged  In  Inventing  and  constructing 
an  automobile.  A  written  contract  was  en- 
tered into,  the  material  parts  of  which  are  as 
follows:  "This  agreement,  made  this  twenty- 
seventh  day  of  October  In  the  year  of  our 
Lord  one  thousand  nine  hundred,  by  and 
between  Charles  H.  Blomstrom,  of  the  city 
and  county  of  Marquette  and  State  of  Michi- 
gan, party  of  the  first  part,  and  Orrln  O. 
Toungqulst,  of  the  same  place,  party  of  the 
second  part,  witnesseth:  That  said  party  of 
the  first  part,  for  and  In  consideration  of  the 
advances  to  be  made  from  time  to  time  as 
needed,  by  said  party  of  the  second  part,  for 
the  purimse  of  defraying  the  expenses  at- 
tendant upon  the  work  of  construction  of 
a  model  and  procuring  patent  or  patents  up- 
on a  self-propelling  vehicle,  machine,  or  au- 
tomobile, which  said  party  of  the  first  part 
hereby  undertakes  to  Invent,  devise,  construct 
and  manufacture,  hereby  bargains,  promises, 
covenants,  and  agrees  to  assign,  transfer,  set 
over,  and  convey  by  good,  proper,  and  suflS- 
cient  conveyance  or  bill  of  sale,  unto  said 
party  of  the  second  part  the  undivided  forty- 
nine  one-hundredths  Interest  tn  and  to  any 
patent  or  patents  which  said  party  of  the 
first  part  may  obtain  or  procure  upon  or  in 
any  way  or  manner  covering  any  and  every 
portion,  part,  feature,  section,  or  division 
whatsoever  of  said  Invention,  and  In  and  to 
any  patent  or  patents  which  said  party  of  the 
first  part  may  obtain  or  procure  upon  or  In 
any  way  or  manner  covering  or  affecting  any 
combination  whatsoever  of  any  and  every 
such  portion,  part,  feature,  section,  or  divi- 
sion of  said  Invention,  and  to  account  to  and 
pay  over  to  said  party  of  the  second  pact  a 
like  interest  and  share  of  any  receipts,  pro- 
ceeds, or  Income  arising  from  the  manufac- 
ture and  sale  of  said  invention,  machine,  self- 
propelling  vehicle,  or  automobile;  and  said 
party  of  the  second  part  hereby  promises  and 


agrees  to  make  the  advances  of  money  and 
funds  above  mentioned  accordingly;  it  being 
the  Intention,  understanding,  and  agreement 
of  the  parties  hereto  that  said  party  of  the 
first  part  is  to  furnish  all  the  mechanical 
skill  and  perform  all  the  labor  and  work,  or 
procure  the  same  to  be  performed,  requisite 
and  necessary  to  perfect,  complete,  construct, 
and  successfully  operate  the  aforesaid  self- 
propelling  vehicle,  machine,  or  automobile, 
and  so  properly  describe,  manipulate  and  op- 
erate the  same  that  patent  or  patents  shall 
be  granted  covering  said  Invraitlon  in  all  its 
parts,  portions,  features,  sections,  and  divi- 
sions, and  that  said  party  of  the  second  part 
Is  to  furnish  and  advance  all  the  money  and 
funds  which  shall  be  required  for  that  pur- 
pose. It  Is  further  hereby  mutually  under- 
stood and  agreed  by  and  between  said  par- 
ties that  neither  of  said  parties  shall  have 
the  right  to  sell,  assign,  transfer,  dispose  of, 
or  In  any  way  or  manner  alienate  the  whole 
or  any  pfirt  of  his  Interest  In  said  Invention, 
patent  or  patents,  or  sell,  assign,  transfer, 
dispose,  or  In  any  way  or  manner  attempt  to 
Incumber  or  hypothecate  the  whole  or  any 
portion  of  his  proper  and  equitable  Interest 
In  the  shares  of  stock  of  any  association,  com- 
pany or  corporation  which  they,  or  either  oC 
them,  may  organize  or  prcnnote  for  the  manu- 
facture and  sale  of  said  invention,  patent  or 
automobile,  without  the  consent  of  the  other 
of  said  parties  hereto  first  obtained  In  writ- 
ing. It  is  also  further  mutually  understood 
and  agreed  by  and  between  said  parties  that 
this  contract  shall  and  does  cover.  Include 
and  operate  upon  any  and  all  points,  parts, 
features,  portions,  sections  and  divisions 
whatsoever  of  the  self-propelling  vehicle,  ma- 
chine, or  automobile  already  constructed  or 
in  process  of  construction,  by  said  party  of 
the  first  part" 

In  July,  1901,  Mr.  Blomstrom  sold  a  one- 
half  interest  In  the  automobile  he  was  con- 
structing, and  his  designs  and  rights  In  re- 
lation thereto  to  Nathan  M.  Kaufman.  In 
September,  1901,  Mr.  Blomstrom  sold  to  Na- 
than M.  Kaufman  a  one-half  interest  in  the 
following  inventions:  (a)  Improvements  in 
wheel  hubs,  (b)  Improvements  In  pr(%)ellor 
mechanism  for  boats,  (c)  Improvements  for 
vaporizers  for  internal  combustion  engines, 
(d)  Improvements  In  motor  vehicles.  The 
latter  part  of  1901  Mr.  Blomstrom  moved  to 
Detroit,  and  with  Mr.  Kaufman,  under  the 
name  of  the  Blomstrom  Motor  Company,  en- 
gaged in  the  business,  principally  of  making 
launches,  though  some  automobiles  were 
made.  In  October,  1904,  a  coriToration  was 
formed,  called  the  0.  H.  Blomstrom  Motor 
Company,  with  a  capital  of  $100,000.  Its 
purpose  was  stated  as  follows:  "Article  11. 
The  purpose  or  purposes  of  this  corporation 
are  as  follows:  to  manufacture,  buy  and  sell, 
at  wholesale  or  retail,  marine,  stationary, 
and  other  gas  and  steam  engines,  boats,  auto- 


•For  other  case*  M«  Mune  topic  and  section  NUMBER  in  Dao.  *  Am.  Digs.  UU7  to  aat«,  t  Rsporter  laiSTSi 


Digitized  by  LjOOQIC 


Mich.) 


T0UNGQUI8T  v.  0.  H.  BLOMSTROH  MOTOR  CO. 


1089 


mobiles,  pnmps,  and  any  other  machinery  or 
Implements  to  be  run  by  gas  or  steam  en- 
^nes."  Its  Btockholdera  were  as  follows: 
Charles  H.  Blomstrom,  Detroit,  Mich.,  2,600 
shares.  Samuel  R.  Kaufman,  Marquette, 
MSch..  1,000  shares.  Nathan  M.  Kaufman, 
Marquette,  Mich.,  6,500  shares.  In  Septem- 
ber, 1006,  the  bill  of  complaint  In  this  case 
was  filed.  The  case  was  put  at  issue  and 
tried.  A  decree  was  rendered  In  favor  of 
complainant,  the  Important  part  of  which  is 
as  follows:  "That  said  defendant  the  C.  H. 
Blomstrom  Motor  Company  forthwith  execute 
and  Issue  to  said  complainant  49  per  cent  of 
5,000  shares  of  Its  capital  stock  of  the  par 
value  of  $10  per  share,  or  the  certificate  or 
certificates  for  2,450  shares  of  its  capital 
stock  of  the  par  value  of  $10  each  ;  that  said 
2,450  shares  of  stock  be  charged  against  the 
amount  of  stock  credited  in  the  articles  of  as- 
sociation to  said  defendant  Charles  H.  Blom- 
strom, and  that  said  defendant  company,  the 
C.  H.  Blomstrom  Motor  Company,  issue  to 
said  defendant  Charles  H.  Blomstrom  certifi- 
cate or  certificates  for  550  shares  of  stock  of 
said  defendant  company."  The  defendant 
Blomstrom  has  brought  the  case  here  by  ap- 
peal. 

The  pivotal  position  of  the  solicitors  for 
complainant  Is  stated  in  their  briefs  as  fol- 
lows: "The  principal  question  involved  in 
this  appeal  is  whether  or  not  the  complainant 
Is  entitled  under  the  contract  to  the  relief 
granted  by  the  court  below,  and  this  question 
is  answered  affirmatively  If  our  interpreta- 
tion of  the  contract  is  correct  Our  conten- 
tion is  that  it  was  absolutely  necessary  by 
the  terms  of  the  contract  to  secure  the  writ- 
ten consent  of  either  party  to  any  transfer 
of  Interest  of  either  party  to  the  contract, 
and  the  purpose  of  the  contract  was  to  pre- 
vent just  such  a  thing  as  has  happened  here. 
If  this  court  were  to  sanction  an  act  of  this 
kind,  It  would  place  a  premium  upon  the  vio- 
lation of  contracts.  The  purpose  of  the  con- 
tract was  to  prevent  either  party  from  being 
crowded  out  of  the  enterprise  by  the  other 
one.  With  that  end  in  view,  It  was  provided 
that  the  consent  In  writing  would  have  to  be 
obtained  before  either  party  could  dispose  of 
bis  interest  to  an  individual  or  a  corporation. 
The  contract  provides:  'That  neither  of  said 
parties  shall  have  the  right  to  sell,  assign, 
transfer,  dispose  of,  or  in  any  way  or  man- 
ner alelnate  the  whole  or  any  part  of  his  In- 
terest in  said  Invention,  patent  or  patents, 
or  sell,  assign,  transfer,  dispose  of,  or  in  any 
way  or  manner  attempt  to  Incumber  or  hy- 
pothecate the  whole  or  any  portion  of  his 
proper  and  equitable  interest  in  the  shares 
of  stock  of  any  association,  company,  or  corpo- 
ration which  they,  or  either  of  them,  may  or- 
ganize or  promote  for  the  manufacture  and 
sale  of  said  invention,  patent,  or  automobile, 
without  the  consent  of  the  other  of  said  par- 
ties hereto  first  obtained  in  writing.'  Now.  if 
that  contract  means  what  it  says,  then  the 
decree  of  the  circuit  Judge  should  be  upheld, 

122  N.W.-09 


for  it  Is  undiq}uted  that  the  written  consent 
of  Xoungqulst  to  the  sale  of  any  interest  un- 
der the  contract  to  Kaufman  was  never  giv- 
en." There  would  be  no  fiaw  in  this  conten- 
tion if  the  complainant  had  fulfilled  his  part 
of  the  contract  and  had  not  consented  to  a 
different  arrangement  which  consent  was 
acted  upon.  It  is  the  contention  of  Mr.  Blom- 
strom that  complainant  never  carried  out  his 
part  of  the  contract  and  that  he  consented 
to  Mr.  Blomstrom's  entering  into  relations 
with  Mr.  Kaufman  that  made  it  impossible 
for  the  terms  of  the  contract  to  be  met  It 
is  agreed  that  all  that  was  paid  by  complain- 
ant was  $200.  The  defendant  'claims  that 
the  actual  expenditures  prior  to  July,  1001, 
amounted  to  nearly  $800,  and  that  the  bills 
for  these  amounts  were  presented  to  the 
complainant  for  payment,  and  that  he  did  not 
pay  them.  There  is  conflict  in  the  testimony, 
and  it  is  urged  that  because  of  what  was 
done  when  the  articles  of  association  were 
drawn  that  Mr.  Blomstrom  is  shown  not  to  be 
entitled  to  belief.  His  testimony  is  in  part 
as  follows:  "No  patents  were  ever  issued  up- 
on the  machine  or  any  part  of  the  machine 
that  I  was  working  on  In  Marquette  at  the 
time  I  made  the  contract  with  the  complain- 
ant Exhibits  11,  12,  13,  14,  and  26  are  bills 
for  materials  used  in  the  construction  of 
that  machine.  I  was  not  working  on  any  oth- 
er automobile  at  that  time.  I  took  these  bills 
to  Dr.  Youngquist.  When  I  called  upon  the 
doctor  the  first  time,  I  presented  bills  for 
$250,  or  in  that  neighborhood,  and  he  gave  me 
$100  on  account.  He  gave  me  $100,  and  then, 
when  the  bills  ran  up  to  about  $500  or  $600, 
I  presented  them  again,  and  told  him  what  we 
owed,  and  he  gave  me  another  hundred  dol- 
lars, with  the  understanding  that  it  was  tak- 
ing more  money  than  he  thought  that  he 
would  not  be  willing  to  go  ahead  any  further. 
He  said:  'It  is  going  to  take  a  lot  of  money. 
I  can  see  it  takes  lots  of  money  to  build  au- 
tomobiles.' And  he  wanted  to  know  how 
much  more  it  would  take  et  cetera,  and  I  told 
him.  I  gave  him  an  idea,  and  he  says,  'If 
you  can  get  somebody  else,'  he  says,  'you  can 
count  me  out'  That  was  in  the  spring  of 
1901.  I  would  say  along  in  February.  I 
showed  these  bills  to  Dr.  Youngquist,  all  of 
them.  I  saw  him  about-  these  bills  six  or  sev- 
en times  between  November,  1000,  and  the 
spring  of  1901,  but  I  did  not  get  any  money. 
When  I  would  go  with  the  bills,  he  would 
say  come  next  week  or  something  to  that  ef- 
fect. All  these  bills  were  contracted  on  the 
car  represented  by  the  photographs.  Before 
making  any  arrangements  with  Mr.  Kauf- 
man, I  had  a  conversation  with  Dr.  Young- 
quist at  the  post  office  in  Marquette  July  4, 
1901,  and  told  hira  'that  I  can  make  an  ar- 
rangement with  Mr.  Kaufman,  who  is  willing 
to  furnish  all  the  money  up  to  half  a  million 
to  carry  on  the  business.'  And  he  says: 
'Well,  all  right,  go  ahead,  and  count  me  out' 
I  went  to  see  him  at  that  time  to  see  if  he 
was  willing  to  go  ahead  any  farther  with  the 


Digitized  by  VjOOQ  l€ 


1090 


122  NORTHWESTERN  REPORTER. 


(Micb. 


contract  or  drop  it.  Court  How  many  dol- 
lars were  due  then  on  the  bills?  A.  Approxi- 
mately $eoa  Q.  What  did  you  talk  about 
the  $200  paid  In  there?  A.  Nothing  Bald, 
only  he  said:  'I  am  willing  to  lose  ]ust  what 
I  have  put  In.'  After  my  conversation  with 
Dr.  Toungqulst  I  saw  Mr.  Kaufman  the  next 
day,  and  closed  with  him,  made  a  contract 
in  writing.  I  told  Dr.  Toungquist  about  mak- 
ing this  contract  I  met  the  doctor,  and  he 
asked  me  if  I  had  closed  the  deal,  and  I  told 
him  I  had,  and  he  wanted  to  know  if  I  got 
any  money,  and  I  told  him  I  got  $300  from 
Mr.  Kaufman.  The  doctor  seemed  pleased 
and  satisfied.  He  said:  'I  realize  it  takes 
more  money  than  I  have  got  and  Mr.  Kauf- 
man has  got  It,  and  you  will  be  able  to 
go  ahead  in  good  shape.'  Then  I  started 
out  to  get  patents;  made  applications  for 
patents.  I  did  not  make  application  before 
because  I  had  no  money.  These  were  the 
applications  referred  to  here  on  wheel  hubs 
and  motor  vehicles.  I  had  asked  the  doctor 
for  money  to  make  applications  for  these 
things.  He  said  he  would  pay.  He  said 
*walt  a  week  or  two,'  or  something  to  that 
effect — inBt  put  me  off  from  time  to  time. 
I  started  the  next  day  after  I  made  a  con- 
tract with  Kaufman  to  make  applications  for 
patents,  wrote  to  Pierce  &  Fisher,  patent  at- 
torneys In  Chicago.  About  a  month  after 
that  1  resigned  my  position  and  came  to  De- 
troit, went  into  the  business  of  building  boats 
and  engines,  and  continued  that  business  for 
about  two  years.  The  engines  were  marine 
engines,  for  marine  purposes  only.  When  I 
made  the  contract  with  Mr.  Kaufman,  It  was 
understood  I  was  going  to  Detroit  to  manu- 
facture engines  and  automobiles,  and  I  came 
down  here  after  that  and  established  the  busi- 
ness under  the  name  C.  H.  Blomstrom  Motor 
Company.  I  told  the  complainant  I  was  com- 
ing to  Detroit  because  It  was  the  best  city  I 
knew  of.  After  I  closed  with  ICaufman,  I  re- 
mained In  Marquette  about  three  months,  and 
I  saw  the  doctor  nearly  every  day,  and  then 
met  him  twice  since  then,  or  three  times 
to  my  knowledge,  once  In  Marquette,  once  in 
Chicago,  and  once  in  Detroit.  I  met  him  In 
Marquette  the  February  following  my  coming 
to  Detroit" 

His  testimony  was  that  the  complainant 
never  made  any  claim  upon  him  untU  after 
the  corporation  was  formed,  unless  two  let- 
ters which  he  received  by  due  course  of  mall 
might  be  regarded  as  a  claim.  The  letters 
are  as  follows:  A  letter  dated  March  26, 
1006,  on  the  letter  head  of  O.  6.  Toungquist, 
M.  D.,  which  reads  as  follows :  "March  26th, 
1906.  Charles  H.  Blomstrom,  Detroit  Mich. 
Dear  Cousin:  Ab  the  time  is  drawing  near 
to  use  automobiles,  I  feel  that  you  will  b« 
willing  to  construct  me  a  late  model  two 
seater  for  the  money  I  have  advanced.  Inter- 
est and  help  given  you.  Don't  you  think  that 
is  about  right  It  will  prove  a  good  adver- 
tisement up  here  for  you.  Please  let  me 
know  If  you  will  do  this.    With  best  wishes. 


your  cousin,  O.  6.  Toungquist"  A  letter 
dated  April  7,  1906,  on  the  letter  head  of  O. 
O.  Toungquist  M.  D.,  which  reads  as  fol- 
lows: "April  7,  '06.  Charles  H.  Blomstrom. 
Detroit  Mich.  Dear  Cousin:  Have  been 
waiting  to  hear  from  you  regarding  that  au- 
tomobile. Now  can  you  not  build  me  a  good 
car;  you'll  never  lose  by  doing  It  Time  for 
running  them  is  drawing  near.  Tours  truly, 
O.  O.  Toungquist"  It  Is  contended  by  com- 
plainant that  he  did  not  write  these  letters, 
but  they  were  written  by  his  office  associate. 
Dr.  James.  He  admits  writing  the  following : 
"Marquette,  Mich.  AprU  16th,  1906.  a  H. 
Blomstrom,  Detroit  Michigan.  This  note 
will  Introduce  Mrs.  Mack.  Anything  you  can 
do  for  her  will  be  greatly  appreciated  by  me. 
Care  Queen  Automobile  Works.  Respectfully 
yours.  Dr.  O.  O.  Toungquist  (liet  me  hear 
from  you)." 

It  Is  the  testimony  of  defendant  that  all 
the  letters  were  written  by  complainant.  On 
the  cross-examination  complainant  answered 
in  part  as  follows :  "Q.  Do  you  mean  to  say 
you  did  not  see  any  bills  except  those  which 
the  checks  of  $200  paid?  A.  That  is  all  I 
saw  to  my  knowledge.  •  •  *  I  never  saw 
an  itemized  bill  like  that  at  alL  He  brought 
some  bills  to  the  office,  a  shipping  bill  or 
something.  I  could  not  recollect  what  it  was 
for,  and  I  do  not  recollect  when  that  was.  I 
do  not  remember  Blomstrom  bringing  bills  to 
me  but  once,  and  that  was  in  my  office.  I 
do  not  recollect  Mr.  Blomstrom  ever  speak- 
ing to  me  about  Indebtedness  he  had  incurred 
In  trying  to  develop  this  machine.  Q.  Do  you 
say  he  did  not?  A.  I  say  I  do  not  remember 
that  W  did.  I  heard  about  Blomstrom  enter- 
ing into  a  business  arrangement  with  Mr. 
Kaufman,  but  I  do  not  remember  when  It 
was.  I  think  it  was  in  1901.  I  do  not 
know  positively.  Q.  Now,  before  Mr.  Blom- 
strom left  (Marquette),  did  you  hear  or  know 
in  any  way  that  he  had  entered  into  some 
business  arrangement  with  Mr.  Nathan  Kauf- 
man? A.  I  heard  it  In  some  way.  Q.  Now, 
let  me  refresh  your  recollection.  Doctor.  On 
or  about  the  4th  day  of  July,  1901,  do  you 
recollect  Mr.  Blomstrom  coming  to  you  In 
the  postoffice?  A.  No,  sir;  I  do  not  Q. 
And  telling  you  that  he  had  or  was  about  to 
enter  Into  an  arrangement  with  Mr.  Kaufman 
by  which  Mr.  Kaufman  was  to  furnish  a 
large  sum  of  money  with  which  to  engage  in 
the  business  of  manufacturing  of  boats  and 
boat  machinery,  and  so  forOi?  A.  No,  sir; 
I  do  not  remember  anything  of  the  kind.  Q. 
And  did  you  advise  him  to  do  it  tliat  you 
did  not  have  money  oiough?  A.  No;  I  do 
not  remember  anything  of  the  kind.  Q.  Do 
you  say  nothing  of  that  kind  occurred?  A. 
I  would  not  say  for  sure.  I  do  not  remember. 
Q.  Tou  say  you  do  not  remember?  A.  Yes. 
sir.  Q.  How  early  did  you  suppose  that  Nate 
Kaufman  was  interested  in  the  business?  A. 
I  had  heard  of  his  name  about  the  time  Blom- 
strom left  Marquette,  that  he  was  in  business 


Digitized  by  VjOOQ  l€ 


Micb.) 


LIPSETT  V.  HA88ARD. 


1091 


with  blm.  I  never  asked  Mr.  Kaufman  about 
it,  nor  Blomstrom,-  tbat  I  know  ot  I  may 
have  written  Blomstrom  after  be  left  Mar^ 
quett&  I  once  wrote  blm,  and  wanted  a 
folder  or  catalogue  of  tbelr  machines.  I 
tbougbt  at  one  time  I  would  buy  a  machine. 
I  saw  Blomstrom  after  be  left  Marquette  In 
1901  at  one  time  In  Chicago.  I  have  for- 
gotten the  year.  Q.  It  was  after  be  left 
Marquette,  and  before  you  came  to  Detroit? 
A.  Ves,  sir;  I  think  it  was.  A.  Did  you 
talk  with  blm  about  the  business  tbat  be 
was  doing  here?  A.  He  was  talking  about 
automobiles,  and  everything  was  prospering, 
doing  nicely.  Q.  Did  he  tell  you  how  they 
were  getting  along  down  here?  A.  Yes,  sir; 
he  said  they  were  getting  along  all  right,  as 
near  as  I  could  understand  It  Q.  That  was 
about  all  the  talk  that  there  was  there? 
A.  About  all  tbat  I  can  remember.  I  did 
not  pay  much  attention  to  it  Q.  You  did 
not  pay  much  attention  to  it  at  that  time? 
A.  No,  sir.  •  •  *  Q.  Did  anybody  tell 
you  that  no  patents  issued  to  Mr.  Blomstrom 
on  any  of  these  applications?  A.  I  did  not 
know  anything  about  the  business  at  all. 
Q.  So  that  when  you  filed  this  bill.  Doctor, 
In  1906,  is  that  the  first  time  tbat  you  made 
any  claim  of  any  Interest  In  these  patents 
to  Blomstrom?  A.  Yes,  sir:  I  think  it  was. 
But,  when  I  was  here  I  tried  to  contract  for 
an  automobile  from  Blomstrom,  I  tried  to 
get  him  to  send  me  an  automobile.  Q.  What 
for?  A.  To  use.  Q.  Did  you  buy  one?  A. 
Well,  there  was  nothing  said  about  any  price 
or  anything  of  the  kind.  Q.  But  you  simply 
negotiated  the  purchase,  or  of  getting  one 
In  some  way— one  of  the  machines?  A.  Yes, 
sir.  •  •  *  Q.  Where  Is  the  doctor  that 
you  speak  of?  A.  In  Marquette.  Mr.  James 
was  not  my  partner.  He  was  associated  with 
me.  Q.  Do  you  recall  the  fact  that  the  let- 
ters, having  been  written,  that  they  were 
written  at  the  time  they  were  written?  A. 
No,  sir;  we  were  talking  about  this  affair. 
Q.  Did  you  talk  with  your  associate?  A.  I 
told  him  all  about  the  affair.  I  presume  I 
told  bim  tbat  I  had  advanced  or  paid  In 
$200.  I  do  not  know  positively  whether  I 
did  or  not  tell  him  Just  the  amount  Q.  Did 
yon  tell  the  doctor  tbat  yon  thought  it 
would  be  all  right  if  Blomstrom  would  give 
you  an  automobile?  A.  Possibly  I  did.  Q. 
Is  tbat  the  way  you  felt  about  it?  A.  I 
cannot-  answer  It  I  do  not  know  how  I 
felt  at  tbat  time."  Witness  further  testified 
that  be  only  claimed  to  have  invested  |200, 
and  said  tbat  Irrespective  of  any  business 
complications  with  Mr.  Kaufman  or  anybody 
else  that  he  claims  49  per  cent  of  the  stock 
of  the  corporation  organized  by  Blomstrom 
and  Kaufman;  tbat  be  did  not  know  what 
the  stock  is  worth,  had  made  no  inquiry 
about  it  and  did  not  know  tbat  it  was  worth 
anjrthlng;    that  be  made  no  Inquiry  Into  the 


nature  of  the  business  or  assets  of  the  part- 
nership or  the  concern  of  C.  H.  Blomstrom  A 
Company  tbat  he  remembered  of;  that  he 
did  not  know  that  Blomstrom  and  Kaufman 
after  Blomstrom  came  to  Detroit  engaged  in 
the  manufacture  of  marine  engines;  tbat  he 
heard  they  were  making  boat  engines,  but 
when  he  could  not  remember.  Witness  fur- 
ther said:  "I  have  never  talked  with  Mr. 
Kaufman  upon  this  subject  at  all.  ♦  •  • 
Q.  Now,  you  put  1200  In  this  thing  I  under- 
stand? A.  Yes,  sir.  Q.  How  much  are  you 
ready  and  willing  to  put  in  now  under  that 
contract?  A.  I  was  asked  for  to  build  a 
machine.  Q.  Suppose  it  had  been  $50,000, 
would  you  have  done  it?  A.  No,  sir.  Q. 
would  you  have  done  it  if  it  bad  been  $20,- 
000?  A.  No;  I  would  not  Q.  Would  you 
have  put  In  $500  in  this  business  at  tbat 
time  if  Blomstrom  had  asked  you?  A.  I  do 
not  know.  I  would  not  put  in  any  more 
money  than  I  did,  for  the  simple  reason 
Blomstrom  told  me  it  would  cost  me  from 
$200  to  $300.  I  would  have  to  possibly  put 
in  another  hundred  to  fullfll  my  part  of  It 
I  could  not  tell  now  what  I  would  have  done 
if  it  had  been  put  up  to  me  then.  I  do  not 
Imow  what  I  would  have  done.  I  am  testis- 
ing  from  my  present  standpoint  Q.  You  do 
not  know  what  you  would  have  done?  A. 
No,  sir." 

It  is  a  significant  fact  that  Dr.  Youngqulst 
put  only  $200  into  the  venture,  and  tbat  the 
record  fails  to  disclose  tbat  he  has  ever  of- 
fered to  pay  any  other  amount  while  there 
is  no  question  that  the  necessary  expenses 
have  been  many  times  this  amount  The 
testimony  ot  the  complainant  which  we  have 
quoted,  what  he  did  and  what  be  omitted 
to  do,  is  not  consistent  with  the  claims  made 
in  the  bill  of  complaint  but  tend  to  corrob- 
orate the  testimony  of  defendant  There 
Is  much  conflict  in  the  testimony,  but  it  ea- 
tabllshes  by  a  preponderance  of  the  testi- 
mony the  version  of  the  defendant  as  to  the 
business  relations  of  the  parties. 

The  decree  is  reversed.  One  may  be  en- 
tered here  dismissing  the  bill  of  complaint 
with  costs  of  both  courts. 


LIPSETT  et  al.  v.  RASSARD. 

(Supreme  Court  of  Michigan.     Nov.  5,   1900.) 

1.  EviDENCB  (i  448*)— Pabol  EvinENCE. 

A  resolution  of  a  limited  cojHirtnership  In- 
debted on  notes  Indorsed  by  stockholders,  who 
were  secured  by  a  mortgage,  which  provides 
for  the  appointment  of  trustees  to  dispose  of 
the  stock  on  hand,  and  to  collect  outstanding 
accounts  and  reduce  the  indebtedness,  is  unam- 
biguous, and  parol  evidence  of  what  was  said  by 
the  stockholders  at  the  meeting  or  a  stockhold- 
er's understanding  of  how  the  proceeds  wen 
to  be  applied  is  inadmissible. 

[Ed.    Note.— For  other  cases,   see   Evidence^ 
Dec.  Dig.  i  44&»]  ^^ 


•For  other  eaiM  see  tune  topic  and  ■action  NUMBER  In  Dec.  A  Am.  Olga.  1907  to  date,  ft  Reporter  Indezea 


Digitized  by  VjOOQ  l€ 


1092 


122  NORTHWESTERN  RBPOBTER. 


(HlclL 


2.  Etideitob  ({  466*)— RKUU.8B— Paboi,  Bvi- 

DKHCE. 

A  joint  maker  of  a  note  cannot  change  It 
by  parol  evidence  to  tlie  effect  that  the  payee 
had  told  him  that  he  had  nothing  to  do  with  the 
note,  but  that  it  would  be  talcen  care  of. 

[Ed.  Note.— For  other  cases,  see  Evidence, 
Cent,  Dig.  }  2145;   Dec.  Dig.  I  468.*] 

3.  Release  ({  12*)— Consideration. 

If  the  language  of  the  payee  amoanted  to 
a  promise  to  release,  it  was  invalid  for  want 
of  consideration. 

[Ed.  Note.— For  other  cases,  see  Release,  Cent 
Dig.  8S  18-20;  Dec.  Dig.  |  12.*] 

4.  Joint- Stock  Gomfanies  ({  14*)— Liuited 
Pabtnebbhip  —  Resolutions  —  Applica- 
tion OT  Assets. 

A  resolution  of  a  limited  copartnership  in- 
debted for  borrowed  money  which  provides  for 
the  appointment  of  trustees  to  sell  the  entire 
stock  of  merchandise  and  collect  outstanding  ac- 
counts and  reduce  the  indebtedness  requires  the 
trustees  to  apply  the  proceeds  of  a  sale  pro  rata 
on  all  the  indebtedness,  and  all  the  notes  given  by 
the  copartnership  and  indorsed  by  stockholders 
who  are  secured  by  a  mortgage  on  all  the  prop- 
erty of  the  copartnership  must  be  treated  alike. 
[Bd.  Note. — For  other  cases,  see  Joint-Sto<^ 
Companies,  Dec  Dig.  i  14.*] 

Error  to  Circuit  Conrt,  Chippewa  County; 
Joseph  H.  Steere,  Judge. 

Action  by  James  Lipsett  and  others  against 
Andrew  Hassard.  There  was  a  judgment  for 
defendant,  and  plaintiffs  bring  error.  Re- 
versed, and  new  trial  ordered. 

Plaintiffs,  defendant,  and  several  others 
were  stockholders  In  the  Soo  Milling  Com- 
pany, a  limited  copartnership  organized  In 
1001  for  the  purpose  of  operating  a  flouring 
mill  in  the  city  of  Sault  Ste.  Marie.  The 
business  was  a  losing  venture,  and  It  was 
necessary  to  borrow  money  to  carry  on  the 
business.  The  company  borrowed  money, 
and  the  plaintiffs,  defendant,  and  others,  sev- 
en in  all,  indorsed  the  notes  here  Involved, 
amounting  to  $6,000,  and  borrowed  money  on 
other  notes  which  were  ipdorsed  by  the 
plaintiff  and  others,  but  upon  which  Mr.  Has- 
sard was  not  an  indorser.  To  secure  the  In- 
dorsers  on  all  the  notes,  the  company  In  De- 
cember, 1904,  executed  a  mortgage  on  all  Its 
real  and  personal  property  for  an  Indebted- 
ness not  to  exceed  $15,000.  All  the  notes 
specified  In  the  mortgage  amounted  to  $14,- 
000.  At  a  special  meeting  of  the  company, 
duly  called  on  February  7,  1905,  at  which 
complainants  and  defendant  were  present,  the 
following  resolution  was  unanimously  adopt- 
ed: "Resolved,  that  a  committee  consisting 
of  J.  L.  Lipsett,  R.  G.  Ferguson,  M.  N.  Hunt, 
and  E.  J.  Swart  be  and  are  hereby  appointed 
to  dispose  of  the  entire  stock  of  merchandise 
now  on  hand  as  quickly  as  possible  at  the 
best  prices  obtainable  and  that  the  mill  be 
shut  down  as  soon  as  the  grain  now  on 
band  Is  ground  and  that  the  manager  pro- 
ceed to  collect  all  outstanding  accounts,  and 
reduce  the  Indebtedness  as  much  as  possible." 
This  committee  proceeded  to  sell  the  per- 
sonal property,  on  which  they  realized  $12,- 


502.80.  Subsequently  a  receiver  was  appoint- 
ed. The  mortgage  on  the  real  estate  was 
foreclosed,  and  a  further  sum  was  realized. 
The  cotnmlttee  applied  this  $12,502.80  upon 
the  Indebtedness  of  the  company  other  than 
the  notes  here  involved.  The  amount  real- 
ized upon  the  foreclosure  of  the  mortgage 
was  applied  upon  these  notes,  after  which 
there  remained  still  unpaid  thereon  $3,411.77. 
Plaintiffs  paid  these  notes  to  the  bank,  which 
held  them  and  sued  the  defendant  for  his 
share,  one-seventh  of  the  amount.  The  de- 
fendant Interposed  two  defenses :  First,  that 
there  was  an  understanding  at  the  time  of 
passing  the  resolution  of  February  7tta  that 
the  receipts  of  the  sale  should  be  applied  in 
payment  of  these  notes;  and,  second,  that 
the  bank  bad  released  the  defendant  from 
liability  thereon.  The  case  was  sabmltted  to 
the  Jury  upon  these  two  defenses,  and  ver- 
dict rendered  In  his  favor. 

Argued  before  GRANT,  MONTGOMERY, 
OSTRANDER,  MOORE,  and  McALVAY,  JJ. 

Sharpe  &  Handy,  for  appellants.  M.  M. 
Larmonth,  for  appellee. 

GRANT,  J.  (after  stating  the  facts  as 
above).  1.  There  is  no  ambiguity  In  the  res- 
olution under  which  this  committee  as  trus- 
tees acted.  Parol  evidence  of  what  was 
said  by  the  stockholders  at  the  meeting  or 
the  defendant's  understanding  of  how  the 
proceeds  were  to  be  applied  is  Inadmissible. 
17  Cyc.  588;  Ten  Eyck  v.  Railroad  Co.,  74 
Mich.  226,  41  N.  W.  905,  3  L.  R.  A.  378.  16 
Am.  St.  Rep.  633;  Kalamazoo  Nov.  Mfg.  Co. 
V.  McAllister,  40  Mich.  84;  Oswald  v.  Min- 
neapolis Times  Co.,  65  Minn.  249,  63  N.  W. 
15 ;  Dennis  v.  Joslin  Mfg.  Co.,  19  R.  I.  666. 
36  Atl.  129,  61  Am.  St.  Rep.  805;  Railroad 
Co.  V.  Wood,  61  N.  H.  418.  This  testimony 
was  inadmissible. 

2.  Plaintiff  bases  his  release  upon  his  claim 
that  he  went  to  Mr.  Fowle,  the  president  of 
the  bank,  "to  get  these  notes  collected  as  I 
did  not  want  them  hanging  onto  me,  and  he 
said:  'Never  mind  these  notes.  Yot»  have 
nothing  to  do  with  them.  They  will  be  tak- 
en care  of;  and  I  went  bade  to  Mead 
(the  cashier),  and  I  says:  'Yon  remember 
now  that  I  do  not  want  these  hanging  onto 
me.'  And  he  says:  'Mr.  Fowle  told  you  the 
notes  were  all  right';  and  so  I  went  out  with 
that."  In  fact,  the  defendant  and  other 
Indorsers  were  Joint  makers.  If  the  language 
amounted  to  a  promise  to  release,  there  was 
no  consideration  for  it  Promissory  notes 
cannot  thus  be  changed  by  parol.  Bishop  on 
CJontract,  |  770. 

3.  It  was  the  legal  duty  of  these  trustees 
to  apply  the  proceeds  of  this  sale  pro  rata 
upon  all  the  Indebtedness  secured  by  the 
mortgage.  The  resolution  did  not  authorize 
them  to  pay  unsecured  Indebtedness  and 
such  of  the  notes  secured  by  the  mortgage 


*For  other  cases  see  same  topic  and  aectloa  NUMBER  In  Dec.  Ik  Am.  Digs.  1907  to  date,  A  Reporter  IndexM 


Digitized  by  VjOOQ  l€ 


Mlch^ 


MILLEE  V.  PRUSSIAN  NAT.  INS.  CO. 


1093 


as  they  might  see  fit.  The  obllgatlonB  of  the 
pairties  were  fixed  by  the  mortgage,  and  all 
the  notes  secured  thereby  should  have  been 
treated  alike.  There  was  no  proof  of  any 
waiver  on  the  part  of  the  defendant.  It  was 
therefore  the  duty  of  the  circuit  court  to 
Instruct  the  Jury  to  ascertain  the  total 
amount  of  the  debts  thus  secured,  the  total 
amount  of  receipts  from  the  sales  of  prop- 
erty, to  apply  these  receipts  pro  rata  upon 
the  secured  debts,  and  to  render  a  verdict 
for  the  plaintiffs  for  defendant's  share  of 
the  notes,  provided  there  was  not  sufficient 
to  pay  them  all. 

Judgment  reversed,  and  a  new  trial  or- 
dered. 


MIIiliER  V.  PRUSSIAN  NAT.  INS.  00. 
(Supreme  Court  of  Michigan.    Nov.  5, 1909.) 

1.  Pleaoiro  (§  291*)— Aduissior  bt  Failure 
TO  Dkmt. 

The  petition  having  alleged  that  the  de- 
stroyed fire  policy  sued  on,  bv  its  terms,  permit- 
ted concurrent  insurance,  defendant  by  pleading 
thereto,  without  denying  under  oath  the  execu- 
tion of  the  policy  declared  on,  admitted  its  exe- 
cution in  manner  and  form  alleged. 

[Ed.  Note.— For  other  cases,  see  Pleading, 
Cent.  Dig.  {|  864-879;   Dec.  Dig.  i  201.*] 

2.  Tbial  (i  251*)— Submission  of  Question 
Not  in  Issue  under  Pleadinos. 

Refusal  to  submit  a  question  not  in  the 
case  under  the  pleadings,  in  view  of  admission 
by  the  answer,  was  not  error  as  against  defend- 
ant, though  evidence  on  the  question  was  im- 
properiy  admitted. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  {{  587-595;   Dec.  Dig.  i  251.*] 

8.  INSUSARCK  ({  389*)- Sole  and  Uncondi- 
tional Ownership  Clause. 

Though  some  of  the  insured  property  bad 
been  bought  by  Insured  bn  a  conditional  sale, 
and  the  purchase  price  had  not  been  paid,  yet, 
he  having  informed  the  insurer's  agent  of  tiiis  at 
the  time  of  effecting  ftie  insurance,  it  did  not 
avoid  the  policy  under  its  sole  and  unconditional 
ownership  clause. 

[E!d.  Note.— For  other  cases,  see  Insurance, 
Cent  Dig.  I  1028;   Dec.  Dig.  i  389.*] 

4.  Insubancb  ({  668*)— Increase  of  Hazard. 
Whether  there  was  an  increase  of  Iiazard 
avoiding  a  policy  on  personal  property  "while 
»  »  •  in  the  •  *  *  buildine  *  •  • 
while  occupied  as  a  saloon  and  dwelling  house" 
is  a  question  for  the  jury,  though  after  the  year 
in  which  insured  might  engage  in  the  retail  liq- 
uor business  he  paid  no  license  tax  for  such  a 
business,  and  there  was  conflicting  evidence  that 
he  thereafter  conducted  such  business  contrary 
to  law. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent.  Dig.  |  1741;    Dec.  Dig.-f  668.*] 

Error  to  Circuit  Court,  Mecosta  County; 
Lewis  Q.  Palmer,  kludge. 

Action  by  Klrby  Miller  against  the  Prus- 
sian National  Insurance  Company.  Judgment 
for  plaintiff.  Defendant  brings  error.  Af- 
firmed. 

Argued  before  BLAIR,  C.  J.,  and  OSTRAN- 
DBat,  MOOEE,  McALVAY,  and  BROOKS,  JJ. 


Jason  B.  Nichols,  for  appellant  B.  A. 
Hawley,  for  appellee. 

McALVAY,  J.  Plaintiff  brought  suit  upon 
a  Michigan  standard  Insurance  policy  of  $1,- 
000  Issued  by  defendant  to  him  insuring  cer- 
tain personal  property,  to  wit,  $350  on  cer- 
tain liquors,  tobacco,  and  cigars,  $350  on  sa- 
loon furniture  and  fixtures,  including  a  safe 
and  cash  register;  and  $300  on  his  household 
goods,  etc.,  situated  in  a  building  occupied 
by  him  as  a  saloon  and  dwelling  in  Mlllbrook, 
Mich.  The  policy  Issued  for  one  year,  and 
was  dated  November  23,  1903,  and  was  writ- 
ten niton  an  oral  application.  The  declara- 
tion was  in  the  form  permitted  by  rule  in 
this  state.  The  execution  of  the  itollcy  de- 
clared upon  was  not  denied  under  oath.  The 
defendant  pleaded  the  general  issue,  with  cer- 
tain notices  that  by  the  terms  of  the  policy 
the  same  would  be  void  (a)  if  other  Insur- 
ance was  placed  without  permission;  (b)  If 
the  hazard  was  Increased  by  any  means  with- 
in the  control  or  knowledge  of  Insured;  (c)  if 
the  fire  was  set  or  caused  at  the  Instance  and 
request  of  plaintiff.  Alleging  In  said  notices 
that  other  Insurance  had  been  procured  with- 
out defendant's  consent,  that  the  hazard  had 
been  Increased,  and  that  the  fire  had  been 
set  by  plaintiff  or  at  his  Instance,  plaintiff  re- 
covered a  Judgment  for  the  full  amount  of 
the  policy  with  Interest  The  errors  upon 
which  defendant  relies  under  its  writ  of  er- 
ror and  which  are  discussed  will  be  consid- 
ered. The  plaintiff  after  the  policy  in  suit 
was  Issued  bought  other  property  consisting 
of  a  pool  and  billiard  table,  and  placed  other 
Insurance  upon  them  and  the  property  in- 
cluded in  defendant's  policy.  Error  Is  as- 
signed apon  the  refusal  of  the  court  to 
charge:  "If  you  find  from  the  evidence  in 
this  case  that  the  policy  In  suit  did  not  per- 
mit the  plaintiff  to  procure  additional  Insur- 
ance upon  the  property  in  question  or  any 
part  of  it,  the  plaintiff  cannot  recover,  be- 
cause it  is  admitted  by  the  plaintiff  that  he 
did  procure  such  additional  insurance" — and 
also  a  request  that  there  was  no  evidence 
tending  to  show  any  authorized  waiver  of 
the  conditions  of  the  policy.  The  allega- 
tions of  the  declaration,  among  other  things, 
stated  that,  by  the  terms  of  this  x>oIicy,  oth- 
er concurrent  Insurance  was  permitted,  and 
Epeciflcally  alleged  the  subsequent  Insur- 
ance, giving  the  name  of  the  company  and 
the  amount  of  the  policy.  Defendant  com- 
pany by  pleading  to  this  declaration  without 
denying  under  oath  the  execution  of  this  pol- 
icy of  insurance  declared  upon  admitted  the 
execution  of  the  Instrument  in  manner  and 
form  as  alleged.  Insurance  Co.  v.  Perkins, 
16  Mich.  380;  Simon  v.  Home  Ins.  Co.,  58 
Mich.  278,  25  N.  W.  190. 

The  policy  was  burned  at  the  time  the  fire 
occurred,  but  the  only  dispute  as  to  its  stlp- 


•iror  MIMT  easea  ■••  Mm*  topic  and  Mctlon  NUMBER  In  Dae.  tt  Am.  Digs.  1907  to  date,  tt  Reporter  IndazM 


Digitized  by 


Google 


1094 


122  NORTHWESTERN  REPORTER. 


(Hlch. 


Illations  was  relative  to  the  concarrent  Insiir- 
ance  clause.  Plaintlfl  objected  to  testimony 
that  the  policy  Issued  prohibited  concurrent 
Insurance,  for  the  reason  that  no  denial  of 
the  execution  of  the  policy  sued  upon  was 
made  under  oath.  It  was  received  by  the 
court  to  be  ruled  upon  later,  and  finally  the 
court  refused  to  strike  it  out  Under  this 
ruling  much  testimony  Is  Improperly  in  the 
record.  The  rule  in  this  state  is  well  settled 
I^  the  cases  above  cited,  and  numerous  oth- 
ers cited  and  digested  In  footnotes  to  Insur- 
ance Co.  T.  Howell,  101  Mich.  335.  By  this 
testimony  a  question  of  fact  was  raised,  but 
the  Issue  was  not  in  the  case  under  the 
pleadings,  and  the  refusal  of  these  requests 
or  the  charge  of  the  court  In  this  respect  wUl 
not  be  considered.  Whatever  of  prejudice 
there  was  on  account  of  the  action  of  the 
court  was  not  against  defendant 

It  la  next  urged  that  the  court  was  in  er- 
ror in  not  instructing  a  verdict  for  defend- 
ant because  it  appeared  that  plaintiff  was 
not  the  sole  and  unconditional  owner  of  all 
the  property  insured.  It  did  appear  in  the 
case  that  the  front  and  back  bar  in  the  sa- 
loon were  purchased  by  plaintiff  upon  a  con- 
ditional sale,  and  the  purchase  price  had  not 
been  paid.  The  application  for  this  insur- 
ance was  oral.  Plaintiff  testlfled  that  at  the 
time  of  effecting  the  insurance  he  informed 
the  agent  of  defendant  of  the  conditional 
character  of  his  title  to  part  of  the  property 
Insured.  This  testimony  was  denied  by  the 
agent  This  raised  a  question  of  fact  for 
the  Jury  to  determine.  It  was  properly  sub- 
mitted for  such  determination;  the  court 
charging  substantially  that  plaintiff's  Inter- 
est in  the  part  of  the  property  in  question 
was  an  Insurable  interest,  and  he  would  have 
a  right  to  Insure  it  If  as  a  matter  of  fact  he 
notified  the  agent  of  defendant  of  his  condi- 
tional title  at  the  time  he  effected  the  Insur- 
ance. This  did  not  mislead  the  Jury,  which 
found  the  fact  favorable  to  plaintiff.  No  re- 
quest upon  this  question  was  presented  by 
defendant  other  than  a  request  for  an  in- 
structed verdict  In  view  of  the  dispute  be- 
tween the  parties  upon  this  material  fact, 
the  court  would  have  erred  had  a  verdict 
been  Instructed  as  requested.  The  policy  con- 
tained a  clause  as  follows:  "This  entire  pol- 
icy shall  become  void  If  the  hazard  be  in- 
creased by  any  means  within  the  control  or 
knowledge  of  the  Insured."  The  Insurance 
was  placed  upon  the  property  heretofore  men- 
tioned "while  contained  in  the  frame  shingle- 
roofed  building  and  adjoining  and  communi- 
cating additions  thereto  while  occupied  as  a 
saloon  and  dwelling  house  and  situated,"  etc. 
After  the  current  year  during  which  plaintiff 
might  engage  in  the  business  of  a  retail  liq- 
uor dealer  had  expired,  he  did  not  pay  the 
annual  tax  upon  the  business  for  the  ensuing 
year,  nor  did  be  pay  the  United  States  spe- 
cial tax,  by  reason  of  which  defendant  claim- 


ed that  the  hazard  had  been  increased,  and 
also  that  he  had  been-  conducting  the  busi- 
ness of  a  retail  liquor  dealer  contrary  to  law. 
The  evidence  upon  this  Issue  was  submitted 
to  the  Jury  to  determine  as  a  question  of 
fact  Defendant  contends  that  the  court  er- 
red in  refusing  to  direct  a  verdict  against 
plaintiff  "because  by  the  uncontradicted  evi- 
dence the  hazard  at  the  time  of  the  fire  was 
increased  contrary  to  the  condition  of  said 
policy."  The  evidence  did  not  warrant  a  di- 
rected verdict  The  text-writers  agree  that 
the  question  of  Increase  of  hazard  is  usually 
a  question  of  fact,  although  there  may  be 
such  a  state  of  facts  established  by  uncon- 
tradicted evidence  as  would  require  a  court 
to  decide  It  as  a  matter  of  law.  Defendant 
in  this  case  presented  no  request  upon  the 
question  except  the  one  quoted.  The  action 
of  the  court  was  as  favorable  as  defendant 
was  entitled  to. 

Errors  assigned  as  to  other  portions  of  the 
charge  are  not  discussed  in  appellant's  brief. 
We  have  examined  errors  assigned  relative 
to  the  admission  and  rejection  of  testimony, 
and  find  that  none  of  them  were  prejudicial 
to  defendant 

Certain  portions  of  the  argument  of  plain- 
tiffs counsel  were  excepted  to.  Some  of 
these  statements  might  well  have  been  omit- 
ted. From  the  charge  of  the  court  It  would 
appear  that  both  sides  had  Indulged  in  ex- 
travagant language,  and  the  court  charged 
the  Jury  as  to  Its  impropriety,  and  that  it 
must  be  stricken  from  consideration.  We 
think  the  learned  trial  Judge  properly  dispos- 
ed of  the  matter. 

We  find  no  prejudicial  error  In  the  case. 

The  Judgment  Is  affirmed. 


DUGAN  v.  BOYNE  ClTT,  O.  &  A.  R.  CO. 
(Suprenle  Court  of  Michigan.    Nov.  5,  1909.) 

1.  Master  and  Servant  (I  137*)— Injubt  to 
Sebvant— Failure  to  Wabn. 

If  a  train  dispatcher  authorized  the  con- 
ductor of  a  stalled  train  to  leave  the  rear  of  it 
on  the  main  line,  and  then  ordered  another  con- 
ductor to  run  a  second  train  over  the  main  line 
without  informing  him  that  the  rear  end  of  the 
former  train  was  on  the  main  line,  he  was  neg- 
ligent, rendering  the  railroad  liable  for  the  death 
of  the  engineer  of  the  second  train  in  a  colliaion 
with  the  rear  end  of  the  first  train. 

[Ed.  Note. — For  other  cases,  see  Master  and 
Servant,  Cent.  Dig.  §i  269-278;  Dec  Dig.  { 
137.*] 

2.  Appeal  and  .Ebbob  ({  999*)— Rkview— Veb- 

DICT. 

Whether  a  train  dispatcher  ordered  a  train 
to  proceed  on  the  main  line,  on  which  to  his 
knowlcdf;e  there  was  a  stalled  train,  resulting 
in  a  collision,  was  a  question  for  the  jury,  whose 
verdict  will  not  be  disturbed. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  ||  3912-3924;  Dec  Dig.  | 
999.*] 

Error  to  Circuit  Court,  Otsego  County;  Nd- 
son  Sharpe,  Judge. 


•For  otber  cues  see  lame  topic  and  section  NUMBBR  In  Dec.  A  Am.  Diss.  U07  to  date,  *  Reporter  Indaxis 


Digitized  by  VjOOQ  l€ 


Mich.) 


DUGAN  V.  BOYNB  CITY,  O.  *  A.  B.  CX). 


1095 


Action  by  Grant  Dugan  against  the  Boyne 
City,  Gaylord  &  Alpena  Railroad.  Company. 
There  was  a  Judgment  for  plaintiff,  and  de- 
fendant brings  error.    Affirmed. 

Argued  before  OSTRANDGR,  HOOKER, 
MOORB,  McALVAY,  and  BROOKE,  JJ. 

Harris  &  Ruegsegger  (W.  L.  Townsend,  of 
counsel),  for  appellant.  De  Vere  Hall,  for 
appellee. 

MOORE,  X  Plaintiff  recovered  a  Judg- 
ment for  injuries  received  In  a  collision  while 
be  was  at  work  as  an  engineer.  The  defend- 
ant has  brought  the  case  here  by  writ  of 
error. 

Defendant  operates  a  railroad,  the  main 
line  of  which  extends  from  Boyne  City 
southeast  to  Gaylord.  Four  miles  or  there- 
about east  of  Boyne  City  a  branch  of  the 
road  leaves  the  main  line  and  runs  east, 
which  is  known  as  the  "Thumb  Lake  branch." 
The  place  where  the  branch  leaves  the  main 
line  is  known  as  Cushman.  Southeast  from 
Cushman  is  another  branch  running  directly 
south  from  the  main  line  known  as  "Head- 
quarters branch."  This  place  is  known  as 
Project  Where  the  Thumb  Lake  branch 
Joins  the  main  line  at  Cushman,  there  is  a 
curve  in  the  main  line.  Near  the  main  line 
and  on  the  Thumb  Irfike  branch  at  Cnshman 
there  is  a  side  track  and  svritch,  making 
ttiree  tracks  in  all.  Hie  side  track  lays  to 
the  northeast  of  the  Thumb  Lake  branch, 
and  the  switch  from  the  branch  to  the  side 
track  is  10  or  12  car  lengths  east  from  the 
switch  opening  from  the  Thumb  Lake  branch 
on  to  the  main  line.  Plaintiff  was  an  engi- 
neer employed  on  the  main  line  on  a  logging 
train.  His  conductor  was  Fletcher  Betterly. 
On  the  day  of  the  injury  a  train  hauled  by 
engine  No.  2  was  operating  on  the  Thumb 
liSke  branch,  Mr.  English,  conductor.  Mr. 
Elnglish  and  Mr.  Betterly  were  experienced 
men.  Trains  were  operated  from  the  office 
at  Boyne  City  by  lines  of  telephones  estab- 
lished along  the  lines  of  the  road.  On  the 
night  of  October  28tb  the  train  with  engine 
No.  2  stalled  on  Interlocker  Hill,  about  half 
a  mile  east  of  Cushman  on  the  Thumb  Lake 
branch.  When  the  train  stalled,  it  was 
backed  to  the  foot  of  the  grade,  and  cut  in 
two,  and  the  forward  section,  containing  12 
cars,  was  taken  to  Cushman,  and  left  on  the 
main  line  without  any  lights  or  anybody  in 
charge  of  it.  The  crew  then  went  after  the 
other  cars.  Conductor  Betterly  with  the 
train  hauled  by  engine  No.  7  called  the  dis- 
patcher from  Project,  and  asked  for  orders. 
After  receiving  his  orders,  he  communicated 
them  to  the  plaintiff,  who  ran  his  train  to 
Cushman,  where  the  collision  occurred.  This 
train  consisted  of  21  loads  of  logs  and  wood. 

The  train  dispatcher  at  this  time  was  a 
young  man  about  18  years  old.  The  orders 
were  given  over  the  telephone.  The  conduc- 
tors and  the  train  dispatcher  do  not  agree 
as  to  what  the  orders  were.    The  claims  of 


the  parties  in  relation  to  them,  and  the  ef- 
fect to  be  given  to  them,  were  stated  by  the 
circuit  Judge  to  the  Jury  as  follows:  "It  is 
the  claim  of  the  plaintiff  in  this  case  that  the 
conductor,  English,  was  authorized  or  per- 
mitted, whichever  term  might  be  best,  to 
place  that  part  of  his  train  which  they  had 
pulled  up  from  the  grade  below  upon  the 
main  line  of  track;  that  he  was  permitted 
to  place  it  there  east  of  the  Junction  point, 
and  to  leave  it  there  without  any  guard  or 
any  one  to  take  care  of  it;  that  the  dispatcher 
Informed  him  that  he  would  protect  that 
part  of  his  train  which  was  left  on  the  main 
line  of  track;  that  is  the  claim  of  the  plain- 
tiff in  this  case.  There  is  no  dispute  further 
alx>ut  the  fact  that  soon  after  that,  and  it 
doesn't  appear  from  the  evidence  that  it 
was  very  long,  the  train  on  which  Mr.  Bet- 
terly was  conductor  and  the  plaintiff,  Mr. 
Dugan,  was  engineer,  coming  along  the  main 
line  of  trade,  had  arrived  perhaps  about  that 
same  time  at  a  place  called  Project;  that 
there  the  conductor,  Mr.  Betterly,  went  to 
the  telephone  office,  and  asked  for  orders  to 
proceed  along  the  main  line.  Now  dispute 
arises  as  to  the  orders  that  he  then  received. 
And  it  is  for  yon  to  say  what  the  fact  is  in 
connection  with  it  The  dispatcher  repre- 
sents the  railroad  company.  He  and  the 
conductors  and  engineers  and  trainmen  are 
not  what  we  term  in  law  fellow  servants. 
■They  are  not  responsible  for  each  other's 
acts.  His  act  in  giving  orders  to  these  con- 
ductors was  the  act  of  the  railroad  com- 
pany itself.  It  wasn't  the  act  of  a  fellow 
servant  of  these  trainmen.  Now,  it  will  be 
apparent  to  you  as  to  what  his  duty  was. 
You  must  first  determine  as  to  what  instruc- 
tions he  had  given  relative  to  the  placing  of 
this  train  on  the  main  line  to  Conductor  Eng- 
lish; and,  if  he  permitted  that  train  to  be 
placed  there  without  any  guard  over  it,  it 
was  then  his  duty,  of  course,  to  give  such 
instructions  to  the  train  coming  along  the 
main  line  as  would  make  it  the  duty  of  that 
engineer  in  charge  of  that  train  to  so  handle 
and  operate  his  train  while  proceeding  along 
towards  that  point  as  not  to  meet  with  a 
collision.  Now,  it  is  a  question  of  fact  for 
you  to  determine,  and  one  that  I  cannot  aid 
you  in  determining,  as  to  whether  or  not 
the  order  given  by  him  was  sufficient  for 
ttiat  purpose.  If  It  was,  if  that  order  was 
reasonably  sufficient  to  apprise  the  engineer 
of  the  fact  that  cars  would  be  left  standing 
there  unguarded  and  unprotected,  then  it 
was  the  duty  of  the  engineer  to  so  operate 
and  haul  his  train  when  approaching  that 
spot  as  to  prevent  a  collision;  and,  if  a  col- 
lision resulted,  the  company  would  not 'be 
to  blame  for  it  On  the  other  hand,  if  that 
order  given  by  the  dispatcher  to  the  engineer 
through  Conductor  Betterly  was  not  sufficient 
in  form  to  apprise  him  of  the  fact  that  cars 
had  been  left  there  on  the  main  line,  but 
ttiat  they  would  probably  or  likely  or  might 


Digitized  by  VjOOQ  l€ 


1096 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


be  there  when  bis  train  reached  that  point, 
then  I  say  to  yoa  that  the  company  would 
be  liable  to  him  for  sacb  damages  as  he 
sustained  by  reason  of  the  collision  with 
such  cars,  unless  you  find  that  he  was  at 
fault  and  in  some  way  himself  contributed 
to  his  injury.  Now,  by  that  I  mean  that  even 
if  such  cars  were  left  there  supposing  that 
the  order  given  was  not  a  sufficient  order 
to  adyise  him  of  the  fact,  and  If  on  his 
way  to  that  point  he  could  have,  by  exercis- 
ing reasonable  care  on  his  part  in  the  manner 
in  which  he  handled  his  locomotive,  avoided 
the  injury,  it  was  his  duty  to  do  so.  Ton 
have  heard  the  dispute  amongst  the  wit- 
nesses and  the  arguments  of  counsel  as  to 
the  language  of  the  order  that  I  am  not  going 
to  refer  to  it  particularly,  because  it  would 
be  improper  if  I  should  in  any  way  indicate 
to  you  what  I  might  think  the  evidence  has 
established  as  the  real  order  that  was  given. 
I  think  I  have  made  myself  clear  In  connec- 
tion with  that  point  As  Mr.  Dugan  started 
his  train  from  Project  and  approached  Cush- 
man,  hla  claim  is  that  the  information  that 
he  got  was  that  there  might  be  switching 
going  on  at  that  point;  and  that  that  of  it- 
self did  not  advise  him  in  any  way  that  there 
was  likelihood  of  being  loaded  cars  standing 
there  without  any  one  near  them.  His  claim 
is  that  he  watched  for  lights,  and  that  he 
didn't  see  any  lights.  And  the  claim  of  the 
plaintiff  18  that  bad  there  been  merely  switch- 
ing going  on  there  as  he  claims  he  was  ad- 
vised there  would  be  that  there  would  have 
been  some  evidence  of  it,  and  that  he  was 
Justified  in  proceeding  in  the  manner  in 
which  he  did.  You  have  heard  his  statement 
in  evidence  of  what  he  did  do  as  he  ap- 
proached this  point.  Now,  it  is  for  you  to 
say  as  to  whether  or  not  he  did  what  was 
reasonably  necessary  under  the  circumstances 
as  known  and  as  they  appeared  to  bim  at 
that  time.  As  known  to  him,  I  mean  as  com- 
municated to  bim  by  the  order  in  question, 
and  as  appeared  to  him  at  that  time.  It  ap- 
pears from  his  own  evidence  that,  before  the 
collision  occurred,  he  saw  this  obstruction 
and  the  car  or  saw  the  rear  car.  Now,  of 
course,  I  need  not  say  to  you  that  it  was 
his  duty  when  he  saw  that  car  to  avoid  if 
possible  a  collision  with  it.  And  it  is  for 
you  to  say  whether  he  did  that.  If  his  own 
negligence — and  when  I  say  negligence  as  ap- 
plying to  him  I  mean  it  in  the  same  sense  as 
that  applying  to  the  defendant  company— 
If  you  find  that  his  own  negligence  In  any 
way  contributed  to  bis  injury,  then  be  can- 
not recover  in  this  case,  because  under  our 
law  we  do  not  apportion  negligence.  If  both 
parties  are  negligent  and  injury  is  caused 
on  account  of  the  Joint  negligence  of  two 
parties,  neither  can  recover  from  the  other 
for  injuries  occasioned  thereby.  Now,  in  de- 
termining the  sufficiency  of  this  order,  I  have 
said  to  you  that  that  is  an  Important  ques- 
tion of  fact  for  you  to  determine— the  suffi- 


ciency of  the  order  given  Betterly.  And  in 
determining  the  sufficiency  of  that  order 
given  to  Mr.  Betterly  by  the  dispatcher  and 
communicated  by  him  to  the  plalntifC  you 
have  a  right  to  take  into  consideration  the 
equipment  of  these  two  freight  trains.  It  is 
admitted  that  there  was  but  one  brakeman  on 
each  train  to  assist  the  conductor;  that  there 
was  no  extra  lights  on  the  train  drawn  by 
engine  No.  2  (that  is,  not  the  train  plaintlfif 
was  on,  but  the  other  one),  and  that  such 
train  was  not  provided  with  torpedoes  nor 
fusees.  Now,  plalntlfC  knew  of  that  fact 
And  the  mere  fact  that  the  train  was  not 
equipped  with  torpedoes  and  fusees  would 
not  of  itself,  even  though  you  might  find  it 
to  be  the  duty  of  the  defendant  to  eqalp 
its  train  that  way,  that  mere  fact  would  not 
entitle  the  plaintiff  to  recover  in  law,  be- 
cause he  knew  of  tlie  fact  of  the  lack  of 
equipment  But  the  dispatcher,  the  man 
who  was  sending  this  order  govMnlng  the 
plaintiff  in  the  handling  of  his  train,  be  is 
chargeable  also  with  knowing  the  manner  in 
which  these  trains  are  equipped.  He  r^re- 
sents  the  company.  He  to  all  Intents  and 
purposes  is  the  company  as  we  might  say, 
because  this  corporation  can  only  do  business 
through  employes  or  agents,  and  he  is  charge- 
able with  notice,  the  same  as  the  engineer, 
that  these  trains  were  not  equipped  with 
these  various  appliances  that  I  have  spoken 
of.  And  you  have  a  right  to  take  such  notice 
and  knowledge  on  his  part  Into  consideration 
in  determining  the  question  as  to  whether 
or  not  the  orders  given  by  him  were  reason- 
ably sufficient  to  apprise  the  plaintiff  of  the 
situation,  and  to  lead  him  to  expect  the  cars 
might  be  placed  on  the  track  as  he  approach- 
ed Cushman  In  the  condition  in  which  be 
found  them." 

The  testimony  of  conductor,  English,  is  in 
substance  tliat  he  called  up  the  train  dis- 
patcher, and  told  him  that  engine  No.  2  at 
Cushman  bad  stalled  on  Interlocker  hill,  and 
"I  wanted  orders  to  leave  my  train  on  main 
line";  that  the  dispatcher  gave  him  the  or- 
der, and  said  he  would  protect  the  train.  He 
further  testified  that  If  he  had  left  a  light 
on  that  portion  of  the  train  left  on  the  main 
line,  he  would  have  bad  no  light  to  do  bis 
work  when  they  went  after  the  otber  part 
of  the  train. 

The  testimony  of  Mr.  Dugan's  condnctor, 
Mr.  Betterly,  is  in  substance  that  the  dis- 
patcher gave  him  orders  to  run  to  Boyne 
(Mty.  "I  called  for  orders  at  Project  Per- 
son at  Boyne  answered  me.  He  gave  me  or- 
ders to  run  extra  to  Boyne  City,  and  look 
out  for  engine  No.  2  at  Cushman.  They 
was  doing  some  switching  there;  might  be 
gone  and  might  not.  That  Is  as  near  as  I 
rememl)er,  something  to  that  effect  No.  2 
meant  engine  2.  There  was  a  train  there 
with  engine  2  switdiing  there.  First  he  says 
No.  2,  and  I  says,  'Tou  mean  engine  2,'  and 
be  says,  'Yes,  sir.'    I  didn't  have  any  advice 


Digitized  by  VjOOQ  IC 


Hicb.) 


DUGAN  V.  BOTNB  CITY,  O.  &  A.  R.  00. 


1097 


that  the  inaln  line  was  being  employed. 
•  •  •  I  gave  Mr.  Dugan  hla  orders.  I  told 
him  that  engine  2  was  switching  at  Cush- 
man,  look  ont  for  engine  2  at  Cushman 
switching  there.  They  might  be  gone  and 
they  might  not  Then  we  started."  He  fur^ 
tber  testified:  "If  cars  had  been  switching 
at  Cushman,  the  lights  on  the  engine  could 
bare  been  seen  by  Mr.  Dugan.  As  he  ap- 
proached Cushman,  I  think  he  could  have 
seen  from  the  switch  the  top  of  the  Iiill.  It 
must  have  been  half  a  mile  or  more.  I 
don't  think  there  was  anything  to  Interfere 
with  his  seeing  a  train  if  there  had  been  any 
one  there.  I  understood  that  engine  No.  2 
was  switching  at  Oushman.  That  was  the 
way  I  got  my  orders." 

The  testimony  of  the  plaintiff  in  substance 
Is:  That,  after  Conductor  Betterly  deliver- 
ed him  his  order  at  Project,  the  train  was 
started.  That  he  slowed  np  the  train  about 
three-quarters  of  a  mile  from  where  the  ac- 
cident occurred.  "I  used  my  air  brakes 
Along  looking  for  those  people  np  there 
switching.  Q.-  Now,  had  they  been  switching 
at  Cushman,  what  could  you  have  seen  as 
you  were  doing  that?  A.  I  could  see  the 
lights.  Q.  That  is  moving  lights  back  and 
forth?  A.  Yes,  sir.  Q.  Did  you  see  any  such 
lights?  A.  No,  sir.  Q.  Did  you  see  any 
lights  at  all?  A.  No,  sir.  Q.  Jfow,  after 
shutting  off  your  power,  what  did  you  next 
do  with  regard  to  the  moving  of  your  train? 
A.  I  got  my  speed  down.  Q.  To  what  limit? 
A.  Well,  I  got  it  down  to  about  four  miles 
an  hour.  Q.  Now,  from  your  knowledge  of 
speed,  how  fast  were  you  going  from  the 
time  that  you  shut  off  your  steam  until  the 
collision?  A.  At  the  time  of  the  collision,  I 
was  going  somewhere  in  the  neighborhood 
of  about  three  miles  an  hour,  not  to  exceed 
four.  Q.  And  what  were  yon  doing  with 
reference  to  looking  ahead?  A.  We  was  look- 
ing all  the  time.  Q.  Who?  A.  I  and  the 
fireman.  Q.  How  far  could  you  see  with  the 
light  which  you  Uad?  A.  On  straight  track 
I  could  see  18  or  20  car  lengths.  Q.  What 
was  the  first  thing  -that  indicated  that  there 
was  an  obstruction  on  the  track?  A.  Car 
load  of  wood.  Q.  How  far  would  yon  say  the 
car  load  of  wood  was  from  the  main  line 
down  the  Thumb  Lake  branch?  A.  Well,  it 
was  about  150  feet.  Q.  Yes ;  now  what  oc- 
casion had  yon  to  expect  any  car  at  that 
point?  A.  I  had  none.  Q.  And  situate  as 
the  car  was  on  a  curve  would  the  light  from 
yonr  engine  shine  on  it  as  you  approached 
It?  A.  As  I  approached  It  the  closer,  I  got 
to  it  the  more  my  light  would  shine  on  it 
Q.  How  close  to  it  before  the  rays  of  your 
light  would  shine  on  It?  A.  About  10  car 
lengths.  Q,  And  how  close  were  you  when 
you  distinguished  this  car  on  the  track?  A. 
I  was  about  eight  or  ten  car  lengths.  Q. 
What  did  you  do  then?  A.  I  reversed  my 
engine.  Q.  And  was  that  the  proper  thing 
to  do?  A.  It  was  the  only  thing  I  could  do. 
Q.  Did  yon  have  brakes  on?   A.  I  had  brakes 


on  the  engine.  Q.  What  did  yon  do  then? 
A.  I  used  them  to —  Q.  How  did  you  use 
them?  A.  I  set  them.  Applied  them.  Q.  For 
what  purpose?  A.  For  stopping.  Q.  Now, 
what  could  you  have  done  that  you  didn't 
do  In  the  use  of  mechanical  appliances  to 
chedc  your  progress  as  you  approached  the 
car?  A.  Couldn't  have  done  anything.  Q. 
Well,  what  took  place?  A.  We  struck  the 
cars.  •  •  •  No  lantern  or  light  of  any 
kind  was  placed  on  this  car.  We  struck  this 
car  of  wood.  I  learned  at  that  time — that 
Is,  that  night — from  what  I  saw  standing 
on  the  main  line  there  were  12  cars,  and 
this  was  the  one  furthest  east  of  the  12. 
They  were  coupled  together  to  form  a  solid 
group  of  12  cars.  I  was  going,  when  I 
struck  the  cars,  abont  three  miles  an  hour. 
In  the  movement  of  the  train  with  the 
look-out  that  would  be  regarded  In  ordi- 
nary railroading,  as  a.  proper  rate  of  speed 
at  that  point  under  those  conditions." 

The  defendant  relies  upon  the  following 
propositions:  "(1)  That  the  Injury  was  caus- 
ed by  the  negligence  of  the  plaintiff  himself. 
(2)  Upon  the  fSct  that  the  order  given  by 
the  train  dispatcher  to  Betterly  under  any 
construction  that  might  be  put  upon  it  was 
snfilclent  to  charge  the  plaintiff  with  enough 
knowledge  to  put  him  on  guard  for  obstruc- 
tions on  the  track  at  or  near  Cushman.  (3) 
That,  if  there  was  negligence  In  leaving  the 
cars  upon  the  main  track  at  Cushman  with- 
out a  light  or  flag  to  guard  them,  it  was  the 
negligence  of  English  the  conductor  in  cha'Vge 
of  train  No.  2.  (4)  That  the  plaintiff  entire- 
ly failed  to  lO'ove  the  giving  of  a  negligent 
order  to  Betterly  at  Project,  In  this:  that 
his  testimony  shows  two  different  orders,  one 
of  which  is  claimed  to  be  insufficient  and 
the  other  substantially  admitted  to  be  a  suf- 
ficient order."  Whether  these  attempted  de- 
fenses have  force  or  not  depends  upon  a 
disputed  question  of  fact.  The  record  shows 
beyond  any  controversy  that  Mr.  Betterly 
was  ordered  to  run  bis  train  from  Project 
to  Boyne  City.  It  also  shows  that,  in  order 
to  do  so,  the  train  must  pass  over  the  main 
line  at  Cushman;  that  the  train  dispatcher 
before  Issuing  the  order  to  Mr.  Betterly  had 
authorized  Conductor  English  to  leave  the 
rear  of  his  broken  train  on  the  main  line  at 
Cushman,  while  he  went  after  that  portion 
of  the  train  at  Interlocker'  Hill.  It  ought  to 
to  too  plain  for  argument  that,  if  under 
these  circumstances  the  train  dispatcher  is- 
sued the  order  to  Conductor  Betterly  without 
informing  him  that  the  rear  end  of  the  train 
was  on  the  main  line,  he  failed  in  the  per- 
formance of  a  clear  duty.  It  does  not  re- 
quire any  great  knowledge  of  railroading  to 
know,  what  is  disclosed  by  the  testimony  in 
this  case,  that  a  switching  crew  would  not  be 
engaged  in  switching  cars  at  a  station  after 
dark  without  the  use  of  lights.  If  the  order 
was  given  by  the  train  dispatcher  as  claim- 
ed by  the  testimony,  then  the  other  pivotal 
questions  are  all  questions  of  fact    Whetb- 


Digitized  by  LjOOQ  IC 


1098 


122  NORTHWESTERN  REPORTER. 


(Mlcb. 


er  the  order  was  given  by  the  dispatcher  as 
claimed  by  plaintiff  was  also  a  question  of 
fact  These  questions  were  all  properly  sub- 
mitted to  the  Jury,  which  found  against  de- 
fendant   Judgment  is  affirmed. 


SCHARMAN  ▼.  BAT  COUNTY  BRIDGE 

COMMISSION. 

(Supreme  Court  of  Michigan.     July  15,  1909.) 

1.  Bbidois  (S  41*)— Negligencb— Evidence. 

PlaintifiTB  son  rode  on  a  bicycle  throngh  an 
open  draw  at  a  bridge,  and  was  drowned.  There 
were  no  chains  at  the  bridge,  and  the  accident 
occurred  in  the  nighttime.  Held,  that  a  judg- 
ment directed  for  defendant  would  be  affirmed. 
(By  dividsd  court.) 

[Ed.  Note.— For  other  cases,  see  Bridges,  Cent 
Dig.  I  81 ;   Dec.  Dig.  {  41.*] 

2.  Bbidoks  (I  38*)— Countt'  Bbidoe  Comhis- 
eiONs— Liabilities. 

Under  Loc  Acts  1889,  p.  1,  No.  278,  crea- 
ting the  Bay  county  bridge  commission,  the  com- 
mission is  not  governed  by  Comp.  Laws  1897, 
|8  3441,  3443,  rendering  corporations  having  a 
duty  to  keep  brieves  in  repair  liable  for  neg- 
lect so  to  do.  Per  Ostrander,  Hooker,  and 
Grant,  JJ. 

[Ed.  Note.— For  other  cases,  see  Bridges,  Cent 
Dfg.  J  97 ;  Dec.  Dig.  {  38.*] 

Error  to  Circuit  Court,  Wayne  Clounty; 
William  G.  Gage,  Judge. 

Action  by  Gottfried  Scharman  against  the 
Bay  County  Bridge  Commission.  Judgment 
for  defendant  on  a  directed  verdict  and  plain- 
tiff brings  error.  Affirmed  by  equally  divided 
co^jrt 

Argued  before  BLAIR,  C.  J.,  and  GRANT, 
MONTGOMERY,  OSTRANDER,  HOOKER, 
MOORE,  McALVAY,  and  BROOKE,  JJ. 

De  Vere  Hall,  for  appellant  Chas.  W. 
Hitchcock,  Pros.  Atty.  (Stoddard  &  McMillan, 
of  counsel),  for  appellee. 

MOORE,  J.  Bay  City  is  situate  on  oppo- 
site banks  of  the  Sagliiaw  river.  The  river 
is  about  one-half  mile  wide  from  bank  to 
bank.  In  the  river  is  an  Island  called  the 
"Middle  Ground."  There  is  a  highway  from 
West  Bay  City  to  Bay  City.  On  such  high- 
way each  part  of  the  river  Is  spanned  by  a 
bridge  having  a  draw  or  swing  span  for  the 
passage  of  vessels,  and  going  from  the  west 
eastward,  in  order,  the  roadway  comprises 
the  west  bridge,  an  asphalt  or  macadam 
street  about  one-quarter  mile  in  length  over 
the  Island,  and  the  east  bridge  having  a  span, 
both  bridges  having  iron  frames,  with  high 
sides  and  overhead  beams.  In  dimensions 
the  east  bridge  from  the  west  end  to  the  draw 
or  swing  span  is  upwards  of  120  feet,  the 
span  itself  202  feet,  and  the  remaining  length 
of  the  bridge  from  the  span  to  the  east  end 
129  feet.  When  the  span  is  swung,  the  west- 
erly end  swings  to  the  south.  There  is  no 
gate  or  chain  or  guard  or  provision  of  any 
kind  at  either  end  of  the  span  on  either 
bridge,  or  at  any  place  along  the  bridges  or 
roadway   to  prevent  teams  or   pedestrians 


from  passing  off  the  open  draw.  The  span 
Is  swung  with  a  lever  operated  from  near 
the  center  of  the  span,  and,  before  swinging, 
the  bridge  tender  rings  a  bell  located  above 
the  center  of  the  span  to  give  warning.  The 
bridge  tenders  are  on  the  span,  and  no  per- 
son is  stationed  along  the  roadway  or  on  the 
bridges  to  give  warning  to  the  drivers  of 
teams  or  pedestrians  that  the  span  Is  aboat  to 
open. 

■  The  son  of  the  plaintiff,  after  attending 
choir  practice  In  the  evening,  rode  east  from 
West  Bay  City  into  the  open  draw,  and  was 
drowned.  Plaintiff  was  appointed  as  admin- 
istrator and  brought  this  action;  the  decla- 
ration comprising  three  counts:  (1)  Failure 
to  keep  the  bridge  and  street  in  safe,  fit  and 
convenient  condition  for  travel;  (2)  failure 
to  maintain  a  gate  or  gates  on  the  roadway 
or  bridges  under  sections  6516-5521,  Ompk 
Laws,  thus  rendering  the  bridges  and  road- 
way unsafe,  unfit  and  inconvenient  for  trav- 
el ;  (3)  failure  to  maintain  a  gate  or  gates 
on  the  roadway  or  bridges  under  sections 
5516-5521,  Comp.  Laws. 

At  the  conclusion  of  plaintiff's  proofs, 
counsel  for  defendant  moved  the  court  to  di- 
rect a  verdict  in  its  favor  for  three  reasons: 
First,  because  defendant  was  not  liable  and 
could  not  be  made  liable  under  Its  act  of  in- 
corporatlofl  for  the  claim  asserted  in  the  dec- 
laration ;  second,  because  it  did  not  appear 
that  plaintiff  had  sustained  any  damages  by 
the  death  of  deceased ;  third,  because  deceas- 
ed was  guilty  of  contributory  negligence. 
The  motion  was  overruled.  At  the  conclu- 
sion of  the  testimony  counsel  for  defendant 
again  moved  the  court  to  direct  a  verdict  in 
its  favor.  This  motion  was  overruled,  and 
the  case  was  given  to  the  Jury.  On  the  even- 
ing of  the  same  day,  and  In  the  absence  and 
without  the  knowledge  of  counsel  for  either 
party,  the  Jury  was  -brought  into  the  court- 
room and  the  following  proceedings  were  then 
had:  "Mr.  Clerk:  Gentlemen,  have  you  agreed 
upon  a  verdict?  Foreman:  We  have  not 
The  0>urt:  Are  you  thoroughly  satisfied  It  ia 
impossible  for  you  to  agree  upon  a-  verdict? 
Foreman:  I  think  so.  The  Court:  It  has 
been  a  very  expensive  trial  for  this  county, 
and  a  matter  we  are  not  interested  in  locally, 
and  I  was  in  hopes  you  could  agree  upon  a 
verdict,  but  I  would  rather  you  should  dis- 
agree than  that  any  man  should  violate  his 
conscience  in  the  matter.  You  are  all  satis- 
fied you  cannot  agree^  are  you?  (Jury  an- 
swers in  affirmative.)  The  court  is  satisfied 
that  the  deceased  was  guilty  of  contributory 
negligence  in  the  manner  in  which  he  ap- 
proached that  bridge  on  that  night  no  matter 
whether  it  was  dark  or  light  If  it  was  dark, 
it  was  his  duty  to  get  off  and  stop  and  see 
what  the  danger  was.  If  it  was  light  then 
'he  certainly  could  see  what  was  ahead  of 
him.  There  can  be  no  question  aboat  It 
Therefore  I  take  it  upon  myself  to  direct  yon 
to  render  a  verdict  In  favor  of  the  defendant 


•For  other  cases  see  same  topic  and  section  NUMBER  In  Dec.  *  Am.  Digs.  1907  to  date,  *  Reporter  iDdezes 


Digitized  by  VjOOQ  l€ 


Mlcb.) 


8CHARHAN  v.  BAT  COUNTY  BRIDGE  (X)MMISSION. 


1099 


of  not  gnilty.  Tou  will  receive  fhe  verdict, 
Mr.  Clerk."  A  yerdlct  was  tberenpon  enter- 
ed. The  case  Is  brought  here  by  writ  of 
error. 

The  first  question  demanding  consideration 
is:  Was  the  Judge  Justified  in  taking  the 
case  from  the  Jury  upon  the  ground  that  It 
could  be  said  as  a  matter  of  law  deceased 
was  guilty  of  such  negligence  as  to  preclude 
his  recovery.  In  overruling  the  motion  for  a 
directed  verdict  the  trial  Judge  said:  "On 
the  point  of  contributory  negligence  of  the 
deceased,  I  think  at  this  stage  anyway  that 
it  is  not  at  all  clear  that  the  deceased  was 
guilty  of  contributory  negligence.  There  Is 
some  dispute  with  regard  to  the  conditions 
at  the  bridge  and  this  draw  at  the  time  of 
the  accident,  and  while  the  plaintiff  has  not 
shown  that  the  deceased  was  without  fault 
on  his  part,  still,  in  view  of  the  i^le  estab- 
lished that  there  is  no  presumption  of  negli- 
gence upon  his  part,  I  think  at  this  time  the 
court  is  not  warranted  in  directing  on  that 
ground."  There  Is  a  printed  record  of  up- 
wards of  300  pages,  much  of  It  devoted  to  de- 
scriptions of  the  approach  to  the  draw,  the 
obstructions  in  the  highway,  the  draw  Itself, 
its  appearance  when  the  lights  were  on,  the 
approach  to  the  bridge  and  on  the  bridge  It- 
self, the  way  the  deceased  was  riding,  bis 
going  Into  the  open  draw,  bis  knowledge  of 
the  situation  before  the  time  of  the  accident, 
where  the  body  was  found,  and  where  the 
wheel  was  found.  The  testimony  was  not 
all  to  the  same  effect.  One  of  the  witnesses 
who  was  on  the  bridge  and  near  the  draw  tes- 
tified in  part  as  follows:  "The  swing  opened 
that  evening.  I  heard  the  signal  given  be- 
fore the  swing  opened.  It  was  a  bell,  and 
the  occasion  of  the  opening  was  a  boat  go- 
ing through.  I  never  see  the  boat,  but  I 
Judge  It  was  an  awful  slow  boat,  and  it 
didn't  seem  to  go  through  the  bridge  very 
fast.  I  should  Judge  that  the  swing  was 
open  10  or  15  minutes  before  the  young  man 
rode  off.  The  boat  that  was  going  through 
was  not  sufficiently  large  so  that  it  showed 
any  lights  to  one  where  we  were.  I  didn't 
see  any  smoke  coming  from  it,  and  there  was 
no  warning  or  signal  or  notice  of  any  kind 
given  that  the  bridge  was  to  be  opened  oth- 
er than  this  bell.  I  saw  the  bridge  open.  I 
never  paid  much  attention  to  how  they  open- 
ed it  It  was  only  the  second  time  I  ever 
was  on  it.  The  first  I  saw  of  young  Schar- 
man  I  and  the  others  got  down  from  the 
railing,  and  were  going  to  go  and  watch  the 
boat  come  through.  Young  Scharman  came 
on  his  wheel,  and  be  whistled  to  me,  and  I 
got  out  of  his  road.  With  reference  to  the 
edge  of  the  end  of  the  bridge,  I  stood  [point- 
ing] along  here.  This  is  where  he  was  com- 
ing. This  is  the  west  fixed  span,  and  I  should 
Judge  we  were  right  in  here  [pointing]. 
*  •  *  A.  I  was  walking  across  from  the 
left-hand  side  to  the  right-hand  side  of  the 
bridge,  going  east.  I  was  going  on  to  watch 
the  boat  come  through,  and  be  came  up  be- 


hind me  and  whistled,  and  I  stepped  right 
out  of  bis  road.  He  was  on  a  bicycle,  and. 
when  he  whistled,  I  did  not  stop  or  anything. 
He  wasn't  going  very  fast,  and  I  thought  be 
saw  the  bridge  and  was  going  to  stop  for  it, 
but  he  kept  right  on  riding.  Q.  Did  any  one 
stop  him?  A.  Not  to  my  knowledge.  Q.  Did 
you  hear  any  one  say  anything  to  him  at  all? 
A.  No,  sir;  I  never  paid  much  attention  to 
the  electric  light  until  we  went  to  run  up 
there  after  he  went  over,  Q.  What  did  you 
notice,  then?  A.  I  noticed  it  was  very  dark. 
I  saw  him  going  oft  the  bridge,  and,  as  soon 
as  he  did  that,  I  and  KInsey  and  Cowan  run 
up  there.  Q.  What  did  you  notice  as  you 
looked — ^whether  you  could  see  that  the  swing 
was  open  from  where  you  stood?  A.  Well, 
sir,  I  knowed  the  swing  was  open.  Q.  Other 
than  that  you  could  see?  A.  Well,  from 
wliere  I  stood  we  could  see  the  boat  on  the 
other  side  of  the  swing.  They  Just  started 
through  the  draw.  Q.  But  could  you  see 
that  the  swing  was  open  tf  you  hadn't  known 
it?  A.  No,  sir;  I  could  not  Q.  Why  was 
that?  A.  Well,  sir,  I  didn't  seem  to  pay  any 
attention  to  It  I  knew  It  was  open,  and, 
when  I  run  up  there,  I  went  up  cautiously. 
It  was  pretty  dark.  Q.  Was  it  easy  to  tell 
when  you  got  to  the  place  where  the  swing 
liegan?  A.  No,  sir.  Q.  What  did  you  ob- 
serve or  notice?  A.  When  we  run  np  there, 
I  couldn't  see  that  draw  myself.  *  •  * 
There  was  no  person  on  the  bridge  that  I 
could  see,  or  did  see,  between  me  and  the 
open  draw.  I  guess  Tom  Paradise  and  that 
young  lady  was  the  closest  of  any  one  who 
was  on  the  bridge.  Q.  They  were  right  at 
the  opening?  A.  Yes;  so  they  say.  I  could 
not  see  from  where  I  was.  It  was  too  dark 
for  me  to  see  them.  Q.  When  the  swing  Is 
open,  have  you  noticed  the  effect  that  the 
water  has  upon  absorbing  the  electric  light 
that  is  thrown  upon  it?  A.  Tes.  Q.  What 
is  that  effect  A.  It  Is  very  dark.  •  •  *  " 
Other  witnesses  testified  that  the  light  falling 
upon  the  open  water  made  a  black  looking 
shadow,  and  that  as  deceased  approached 
the  west  draw,  at  moderate  speed,  he  look- 
ed tM>th  up  and  down  the  rlyer,  and  then  di- 
rectly ahead. 

It  has  been  held  that,  in  the  absence  of 
proof,  the  presumption  Is  that  deceased  used 
due  care.  Mynning  v.  Railroad  Co.,  64  Mich. 
93,  31  N.  W.  147,  8  Am.  St  Rep.  804 ;  Gro- 
stick  V.  Railroad  Co.,  90  Mich.  594,  51  N.  W. 
667;  Schremms  v.  Railroad  Co.,  145  Mich. 
190,  108  N.  W.  698,  116  Am.  St.  Rep.  291.  It 
has  been  held  that  knowledge  of  a  defect  in 
the  highway  did  not  necessarily  establish 
negligence  on  the  part  of  one  injured  by  rea- 
son of  such  defect  Lowell  v.  Watertown,  58 
Mich.  568,  25  N.  W.  517.  See,  also,  Duudas 
V.  Lansing,  75  Mich.  499,  42  N.  W,  1011,  5 
L.  R.  A.  143,  113  Am.  St  Rep.  457;  Dittricb 
V.  Detroit,  98  Mich.  245,  57  N.  W.  125;  Sia» 
V.  Reed  City,  103  Mich.  312,  61  N.  W.  502. 
The  rule  of  law  was  stated  by  Mr.  Justice 
Christlancy  as  follows:    "Courts  may  not  ai> 


Digitized  by  VjOOQ  l€ 


1100 


122  NORTHWESTERN  REPOKTER. 


(MlclL 


ways  be  able  to  define  precisely  all  the  par- 
ticulars which  would  be  necessary  to  consti- 
tute diligence  under  all  circumstances,  and 
there  may  even  be  cases  depending  upon  a 
complication  of  facts  and  circumstances  ad- 
mitted or  found  to  be  true,  in  which  it  would 
be  better  to  leave  the  Jury  to  draw  the  infer- 
ence of  diligence  or  negligence  than  to  under- 
take to  draw  It  themselves.  •  *  *  It  Is 
frequently  dlflScult,  perhaps  sometimes  impos- 
sible, to  determine  how  far  the  question  of 
negligence  or  reasonable  diligence  Is  a  ques- 
tion of  law  and  how  far  a  question  of  fact. 
It  Is  generally  a  question  of  mixed  law  and 
fact;  and  always,  when  the  facts  are  found 
or  omitted,  if  they  be  such  that  all  reasonable 
men  will  be  likely  to  draw  from  them  the 
same  inferences,  it  is  a  question  of  law  for 
the  court  Railroad  Co.  t.  Miller,  25  Mich. 
274,  293.  Negligence  and  contributory  negli- 
gence depend  upon  the  circumstances  of  the 
particular  case.  The  general  rule  Is  that  they 
are  questions  for  the  Jury,  and  they  do  not 
become  questions  of  law  except  on  undisputed 
testimony.  Burroughs  t.  Ploof ,  73  Mich.  607, 
41  N.  W.  704;  Fox  v.  Iron  Co.,  89  Mich.  387, 
60  N.  W.  872.  This  has  led  to  the  establish- 
ment of  the  doctrine  that  all  reasonable 
minds  must  reach  the  same  conclusion  before 
negligence  and  contributory  negligence  wfil 
be  treated  as  presenting  questions  of  law  ex- 
clusively. Sadowskl  v.  Car.  Co.,  84  Mich. 
100,  47  N.  W.  508;  Ashman  y.  Railroad  Co., 
00  Mich.  667,  «1  N.  W.  645;  Becker  v.  Rail- 
way Co.,  121  Mich.  580,  80  N.  W.  581."  See, 
also.  Railway  Co.  v.  Van  Stelnburg,  17  Mich. 
99;  Telpel  t.  Hllsendegen,  44  Mich.  461,  7 
N.  W.  82;  Marcott  v.  Railroad  Co.,  47  Mich. 
1,  6,  10  N.  W.  63;  Staal  y.  Railroad  Co.,  57 
Mich.  239,  23  N.  W.  795;  Klanowskl  t.  RaU- 
road  Co.,  57  Mich.  525,  24  N.  W.  801.  Apply- 
ing these  cases  to  the  evidence  disclosed  by 
the  record,  we  think  it  cannot  be  said  as  a 
matter  of  law  that  the  negligence  of  the  de- 
ceased was  such  as  to  preclude  a  recovery. 

It  is  urged  that  tbe  conclusion  of  the  cir- 
cnlt  Judge  ought  to  stand  for  the  reason 
that  tbe  plaintiff  suffered  no  pecuniary  loss, 
as  the  son  had  almost  attained  his  majority. 
We  cannot  say  from  this  record  that  the 
damages  of  plaintiff  were  only  nominal.  The 
circuit  Judge  took  a  different  view  of  that 
question  from  counsel,  and  left  it  to  the 
Jury  in  his  general  charge.  He  put  his  di- 
rection of  the  verdict  explicitly  upon  the 
ground  of  contributory  negligence.  In  any 
event,  the  plaintiff  would  be  entitled  to  tbe 
earnings  of  his  son  until  he  had  attained  his 
majority.  It  is  said:  "The  conclusion  final- 
ly reached  by  the  circuit  Judge  is  also  cor- 
rect for  the  reason  that  the  defendant  is  not 
liable  in  an  action  by  a  third  person  for  dam- 
ages for  failure  to  keep  the  bridge  in  re- 
pair." It  is  contended  "the  bridge  in  ques- 
tion is  a  part  of  the  public  streets  or  high- 
ways of  the  city.  It  is  maintained  by  the 
defendant  for  the  public  benefit,  and  neither 
tbe  city  nor  tbe  defendant  derives  any  rev- 


enue or  benefit  therefrom,  and  the  members 
of  tbe  commission  serve  without  comjiensa- 
tion.  The  defendant  is  simply  the  establish- 
ed municipal  or  public  agency,  charged  with 
the  duty  of  maintaining  the  bridge."  The 
record  shows  defendant  had  on  hand  for  pur- 
poses of  repair  and  operation  upwards  of 
$17,000.  The  act  under  which  defendant  Is 
acting  was  construed  In  People  v.  Bridge 
Commission,  115  Mich.  622,  73  N.  W.  901, 
where  it  was  held  to  be  the  duty  of  defend- 
ant to  keep  the  bridge  and  Its  approaches 
in  repair.  Sections  5516,  5517,  5518,  Comp. 
Laws,  contain  provisions  as  to  what  Is  re- 
quired In  relation  to  gates  where  a  draw  or 
swing  Is  to  be  operated  In  a  bridge.  Section 
3441,  Comp.  Laws,  reads,  In  part,  as  fol- 
lows: "That  any  person  or  persons  Bnstain- 
ing  bodily  Injury  upon  any  of  the  public  high- 
ways or  streets  in  this  state,  by  reason  of 
neglect  to  keep  such  public  highways  or 
streets,  and  all  bridges  *  *  *  on  tbe 
same  in  reasonable  repair,  and  in  condition 
reasonably  safe  and  fit  for  travel  by  the 
township,  village,  city  or  corporation  whose 
corporate  authority  extends  over  snch  pub- 
lic highway,  street,  bridge  •  •  •  whose 
duty  it  is  to  keep  the  same  In  reasonable  re- 
pair, such  •  •  •  corporation  shall  be  lia- 
ble to  and  pay  to  the  person  or  persons  so 
injured  or  disabled  Just  damages.  •  •  •  •» 
We  think  it  cannot  be  said,  if  plalntUTs' 
contention  as  to  tbe  facta  is  true,  that  there 
is  no  liability. 

Judgment  should  be  reversed,  and  new 
trial  ordered. 

OSTRANDER,  J.  The  court  below  direct- 
ed a  verdict  for  defendant  upon  the  grotind 
that  plaintiff  was  as  matter  of  law  guilty  of 
negligence  contributing  to  his  injury.  The 
court  was  asked  to  so  direct  a  verdict  upon 
two  other  grounds,  viz.:  That  there  was 
no  testimony  to  support  a  sulistantlal  recov- 
ery for  plaintiff;  and  that  defendant  was 
not,  in  any  event,  liable  in  this  action.  The 
opinion  of  Mr.  Justice  MOORE,  reversing 
the  Judgment  and  ordering  a  new  trial,  is, 
for  the  purposes  of  this  case,  a  ruling  in  fft- 
vor  of  plaintiff  upon  all  of  these  issues.  I 
do  not  disagree  with  Mr.  Justice  MOORB 
upon  tbe  proposition  that  the  question  of 
plaintiff's  contributory  negligence  was  for 
the  Jury.  I  have  so  much  doubt  concerning 
the  soundness  of  his  conclusions  upon  the 
other  points  that  I  have  reduced  to  writing 
my  reasons  for  believing  a  different  result 
should  be  reached. 

1.  Plaintiff's  Intestate  was  at  the  time  of 
his  death  20  years,  11  months,  and  26  days 
old.  He  earned  $1  a  day,  and  gave  his  wages 
to  hiB  father,  the  plaintiff.  Four  working 
days  Intervened  his  death  and  his  majority. 
Upon  tbe  theory  that  the  plaintiff  was  bound 
to  support  him  and  was  entitled  to  his  serv- 
ices, $4  only  could  be  recovered.  I  have 
found  in  the  record  no  other  testimony  tend- 
ing to  prove  any  iiecunlary  loss  to  plaintiff 


Digitized  by  VjOOQ  l€ 


N.D.) 


YOUNG  V.  METOALF  LAND  CO. 


1101 


resulUag  from  the  death  of  his  son.  The 
father  was  In  no  manner  dependent  npon 
bis  son's  earnings.  Whether  he  ever  would 
be  so  dependent  is  matter  of  merest  con- 
jecture. 

2.  The  powers  «nd  duties  of  the  defendant, 
so  far  as  they  are  important  here,  are  stat- 
ed In  section  4,  Act  No.  278.  p.  3,  Loc.  Acts 
1888.  Bee,  also,  Act  No.  815,  p.  814,  Loc. 
Acts  1891.  It  has  no  power  to  raise  money, 
and  such  money  as  is  furnished  to  It  Is  re- 
quired to  be  expended  exclusively  for  the 
purpose  of  building,  repairing,  and  operating 
bridges  and  the  approaches  thereto.  The 
defendant  la  a  public  agency,  and  not  merely 
a  private  proprietor,  although  it  seems  that 
title  to  one  or  more  of  the  bridges  was  ac- 
quired by' It  from  the  county  of  Bay.  But 
clearly  It  controls  the  bridges  in  the  public 
interest,  and  could  neither  dispose  of  them 
nor  exact  tolls  for  their  use.  Nor  could  a 
Judgment  creditor  acquire  the  bridges  by 
levy  and  sale  on  execution.  It  would  seem 
that  the  provisions  of  Comp.  Laws,  gg  5519- 
5521,  do  not  fix  a  statutory  duty  to  protect 
the  draw.  If  there  Is  a  statute  duty  Imposed, 
It  must  be  by  Comp.  Laws,  g  3441.  But  this 
section  must  be  read  with  section  3443. 
Plaintiff  is  not  proceeding  upon  the  theory 
that  the  city  of  Bay  City  is  liable  for  the 
carelessness  of  the  bridge  commission  or  Its 
employes,  but  upon  the  theory  that  defend- 
ant is  a  corporation  within  the  meaning  of 
these  sections  of  the  statute,  and  subject  to 
the  liability  Imposed  thereby.  It  Is  the 
city  of  Bay  City  which  must  furnish  by  the 
exercise  of  the  power  of  taxation  the  money 
to  pay  a  Judgment  if  one  is  recovered.  It 
Is  not  a  party  to  the  suit,  and  no  claim  was 
presented  to  its  governing  body.  It  has  no 
control  over  those  who  control  and  operate 
the  bridges.  It  Is  to  be  noted  that  by  sec- 
•tion  S443  "highway  commissioners,  street 
commissioners  and  all  other  officers  having 
special  charge  of  •  •  •  bridges  •  •  * 
and  the  care  and  repair  thereof  are  hereby 
made  and  declared  to  be  the  officers  of  the 
city  •  •  •  or  corporation  wherein  they 
are  elected  or  appointed,  and  shall  be  sub- 
ject to  the  general  direction  of  such  *  *  * 
city  or  corporate  authorities  in  the  discharge 
of  their  several  duties."  The  members  of 
defendant  commission  are  elected  by  the  in- 
habitants of  Bay  City.  It  is  possible  that, 
when  Bay  county  owned  and  operated  the 
bridges,  the  effect  of  the  statute  was  to  im- 
pose upon  the  county  a  liability,  and  that 
the  words  "corporation"  and  "corporations" 
meant  such  a  municipal  corporation  as  a 
county.  I  do  not  believe  It  was  Intended 
that  the  defendant  should  be  governed  at  all 
by  the  provisions  of  the  general  law.  I  con- 
clude that  neither  at  common  law  nor  by 
statute  is  it  made  liable  to  answer  plaintiff's 
demand. 


HOOKEB,  J.,  concurred  with  OSTRAN- 
DER,  J. 

HOOKER,  J.  The  plaintiff  appeals  from  a 
directed  verdict  in  a  cause  where  defend- 
ant was  sued  for  causing  the  death  of  plain- 
tiff's intestate  through  negligence  in  the 
management  of  a  drawbridge.  The  defend- 
ant is  a  corporation  created  under  the  pro- 
visions of  Act  No.  278,  Loc  Acts  1889.  Sec- 
tion 3441,  Comp.  Laws,  imposes  liability  on 
all  corporations  having  duty  to  keep  road, 
etc..  In  repair.  This  act  was  passed  in  1887. 
The  case  of  O'Leary  v.  Board,  79  Mich.  286, 
44  N.  W.  608,  7  L.  U.  A,  170,  19  Am.  St. 
Rep.  169,  was  decided  in  1890,  and  seems  to 
be  practically  on  all  fours  with  this  case, 
80  far  as  the  question  of  defendant's  liabil- 
ity is  concerned,  especially  as  the  accidents 
upon  which  that  case  Is  based  occurred  after 
section  3441  had  taken  effect  Section  4, 
No.  278,  Loc.  Acts  1889,  provides  that  "all 
moneys  that  shall  come  under  the  control  of 
said  commission  by  virtue  of  this  act  shall 
be  expended  exclusively  for  the  purpose  of 
building,  repairing  and  operating  said  bridg- 
es and  the  approaches  thereto,"  and  it  is  not 
authorized  to  provide  money  for  any  other 
purpose.  The  application  of  such  fund  to 
the  payment  of  damages  arising  from  acci- 
dents would,  to  use  the  language  of  Mr.  Jus- 
tice Morse,  "be  a  diminution  of  the  power 
of  the  defendant  to  perform  its  public  duties 
In  regard  to  public  •  •  •  safety."  See 
O'Leary  v.  Board,  supra.  The  Judgment 
should  be  affirmed. 

GRANT,  J.,  concurred  with  HOOKER,  J. 

BROOKE,  J.  I  concur  in  the  result  reach- 
ed upon  the  ground  that  plaintiff's  decedent 
was  guilty  of  contributory  negligence,  and  the 
verdict  was  therefore  properly  directed. 

GRANT,  J.  I  also  concur  in  the  opinion 
that  plaintiff  was  guilty  of  contributory  neg- 
ligence. 


YOUNG  V.  METCALP  LAND  CO. 

(Supreme  Coart  of  North  Dakota.     March  19, 
1909.     On  Rehearing,  Nov.  5,  1909.) 

1.  Brokers  (|  14*)  —  Employment  of  Reai 
estatb  aoent  —  constbuction  of  con- 
TRACT. 

A  contract  in  writing  was  entered  into  be- 
tween an  owner  of  large  tracts  of  land  in  tbifi 
state  and  a  real  estate  dealer,  by  the  terms  of 
which  the  real  estate  dealer  should  have  the  ex- 
clusive sale  of  said  lands  for  a  period  of  10 
years  at  such  prices  as  he  may  deem  best,  pro- 
vided that  no  tract  should  be  sold  for  less  than 
the  appraised  value  named  in  Schedule  A.  at- 
tached to  the  contract.  Out  of  the  proceeds  from 
sales  made  a  stipulated  amount  was  to  be  paid 
to  the  landowner  and  the  balance  equally  di- 
vided between  the  parties  to  the  contract.  Beld, 
that  the  dealer  bad   the  sole   right   to  fix   the 


•For  other  cases  tee  same  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indexes 


Digitized  by  VjOOQ  l€ 


1102 


122  NOBTHWBSTEBN  RBPORTBB. 


CN.I>. 


sellint;  price  of  lands,  provided,  however,  that 
the  prices  were  not  less  tnan  the  appraised  value, 
and  that  the  owner  could  not  arbitrarily  refuse 
to  approve  the  sales  for  the  reason  that  the 
prices  were  not  satisfactory  to  the  owner. 

[Ed.  Note. — For  other  cases,  see  Brokers,  Cent 
Dig.  J  13;  Dec  Dig.  1 14.»] 

2.  Ck>NTBACTB  (IS   147,  188*)— CONSTBUOnON— 

Intent  —  CoNSTBucTioN  to  Give  Validitt 

AND  Effect. 

A  contract  must  be  Interpreted  so  as  to 
give  effect  to  the  mutual  intention  of  the  parties 
as  it  existed  at  the  time  of  contracting  so  tar 
as  the  same  Is  ascertainable  and  lawful.  A 
contract  must  receive  such  an  interpretation  as 
will  make  it  lawful,  operative,  definite,  reason- 
able, and  capable  of  being  carried  into  effect. 

[Ed.  Note.— For  other  cases,  see  Contracts, 
Cent.  Dig.  fl  730,  734,  748;  Dec.  Dig.  SS  147, 
153.*] 

3.  Brokers  (S  63*)— Coicpbnsation— Preven- 
tion or  Sales  bt  Owner. 

The  dealer  having  been  prevented  by  the 
landowner  from  making  the  sales  is  entitled  to 
the  profits  he  would  have  made  had  the  offers 
been  accepted,  and  sales  approved  by  the  land- 
owner. 

[Ed.  Note.— For  other  cases,  see  Brokers,  Cent. 
Dig.  H  79,  81,  94-86;    Dec  Dig.  i  63.*] 

Ellsworth,  J.,  dissenting. 
(Syllabus  by  the  Court.) 

Appeal  from  District  Ourt,  Cass  County; 
Chas.  A.  Pollock,  Judge. 

Action  by  James  C.  Young  against  the 
Metcalf  Land  Company.  Judgment  for  plaln- 
tlir,  and  defendant  appeals.    Afllrmed. 

Koon,  Wbelan  &  Bennett  and  Ball,  Wat- 
son, Young  &  Lawrence,  for  appellant  L. 
W.  Collins,  Emerson  H.  Smitti,  and  Engerud, 
Holt  &  Frame,  for  respondent 

CARMODY,  J.  This  is  an  action  by  re- 
spondent, a  real  estate  dealer  of  Minneapolis, 
Minn.,  to  recover  damages  against  appellant, 
a  New  Jersey  corporation,  that  owned  a 
large  number  of  tracts  of  land  in  Barnes, 
Stutsman,  and  other  counties,  in  this  state. 
On  January  20,  1897,  they  entered  Into  the 
following  contract: 

"This  agreement,  made  this  20th  day  of 
January,  A.  D.  1897,  by  and  between  the  Met- 
calf Land  Company,  of  New  Jersey,  party 
of  the  first  part,  and  James  C.  Young,  of 
Minneapolis,  Minnesota,  party  of  the  second 
part. 

"Witnesseth:  Whereas  said  Metcalf  Land 
Company  Is  the  owner  in  fee  of  the  following 

described  lands  in  the  County  of State 

of  North  Dakota,  as  shown  by  Schedule  'A' 
hereunto  annexed,  and  marked  'Exhibit  A.' 

"And  whereas,  tiie  said  Metcalf  Land  Com- 
pany has  this  day  given  the  exclusive  sale 
and  management  of  said  lands  to  said  James 
C.  Young,  now,  therefore,  the  said  parties 
hereto  hereby  agree  with  each  other,  as  fol- 
lows: That  said  James  C.  Young  has  caus- 
ed to  be  made  a  careful  examination  of  said 
lands  and  an  appraisement  thereof,  which 
said  appraisement  is  marked  opposite  each 
tract  npon  said  Exhibit  A  and  is  hereby 


acc^ted  by  said  Metcalf  Land  Company. 
That  said  James  C.  Young  shall  h^ve  the  au- 
thority to  sell  said  land,  or  any  part  tho-eof, 
at  such  a  price  as  he  may  deem  best,  provid- 
ed, however,  that  no  tract  shall  be  sold 
for  less  than  the  appraised  •value  named  in 
said  Schedule  A  and  it  is  distinctly  under- 
stood that  before  any  sale  shall  be  binding 
upon  the  said  Metcalf  Land  Company,  the 
contract  shall  be  aproved  and  terms  of  pay- 
ment thereof  accepted  by  the  said  Metcalf 
Land  Company.'  That  said  James  C.  Young 
is  further  to  give  reasonable  amount  of  time 
and  attention  to  the  management  and  sale  of 
said  lands,  and  agrees  to  give  to  the  benefit 
of  the  said  Metcalf  Land  Co.,  the  highest 
price  for  the  sale  of  such  lands  which  he  can 
obtain,  and  to  faltbfuUy  account'  to  said 
Metcalf  liand  Company  for  all  the  proceeds 
which  may  be  derived  from  such  sales  and 
make  quarterly  return  of  such  sales  and  pay- 
ments of  such  funds  as  may  then  be  in  bis 
possession.  And  said  James  C.  Young  further 
agrees  that  he  will  use  all  faithful  and  rea- 
sonable effort  to  baTe  the  land  sold  under 
this  contract  put  under  cultivation  as  rapid- 
ly as  possible  by  the  purchasers  thereof,  and 
it  Is  mutually  agreed  that  in  case  of  said 
James  C.  Young  advancing  money  for  the 
purchase  of  seed,  grain  or  any  other  neces- 
sary Improvements  on  premises  sold  under 
this  contract,  that  he  may  take  as  security 
the  seed  Hen  on  crops,  or  take  any  other  sort 
of  security  which  he  deems  expedient  or 
desirable,  and  the  money  so  advanced  by  the 
said  James  C.  Young  shall  be  first  returned 
with  interest  from  the  purchaser  before  any 
application  of  payment  is  made  undei?  the 
contract  of  sale,  any  balance  remaining,  or 
paid  in  by  the  purchaser  after  the  money  so 
advanced  has  been  returned  shall  be  applied 
in  the  usual  way  under  the  contract  of  sale. 

"It  is  further  mutually  agreed,  that  the 
proceeds  derived  from  the  sale  of  said  lands 
shall  be  applied  as  follows: 

"First:  To  the  payment  of  said  Metcalf 
Land  Co.  of  the  sum  of  two  dollars  ($2)  per 
acre,  together  with  interest  thereon  at  six 
per  cent  (C%)  per  annum,  from  the  date  of 
this  contract,  and  also  of  all  taxes  accruing 
or  becoming  due  upon  said  lands  from  and 
after  the  date  of  this  contract,  including  the 
tax  of  1896,  paid  by  said  Metcalf  L^nd  Co., 
together  with  interest  at  the  rate  of  six  per 
cent  (6%)  per  annum  thereon,  from  date  of 
payment   thereof. 

"Second:  The  remainder  of  said  proceeds 
shall  be  divided  equally  and  one-half  part 
thereof  shall  be  paid  to  the  said  Metcalf 
Land  Co.,  its  successors  or  assigns,  and  the 
remaining  one-half  part  thereof  shall  be  paid 
to  James  C.  Young,  his  heirs,  administrators 
or  assigns. 

"It  is  further  mutually  agreed,  that  said 
James  C.  Young  shall  retain  no  profit  nnder 
this  contract  until  the  whole  amount  of  two 


•For  other  eases  see  same  topic  and  gecUon  NUMBER  In  Dae.  ft  Am.  Dig*.  1907  to  data.  A  Reporter  Indazaa 


Digitized  by 


L-oogle 


N.D.) 


YOUNG  V.  METOALP  LAKD  00. 


1103 


dollatB  (19  per  acre,  with  Interest  thereon, 
and  taxes,  with  Interest  thereon  as  herein 
provided,  has  been  returned  to  the  said  Met- 
calf  Land  Company. 

"It  is  further  mutually  agreed,  that  fbis 
contract  shall  remain  In  force  and  be  mutual- 
ly binding  upon  the  parties  hereto  for  a 
period  of  ten  years  (10)  from  the  date  hereof, 
unless  sooner  dissolved  by  written  mutual 
consent,  or  by  the  death  of  James  G.  Young. 

"It  is  distinctly  understood  and  agreed  that 
this  contract  is  personal  to  James  C.  Young, 
and  that  no  interest  of  any  kind  whatsoever 
In  said  lands,  or  any  part  thereof.  Is  hereby 
conveyed  or  Intended  so  to  be  conveyed  by 
the  said  Metcalf  Land  Company  to  said  James 
C.  Young,  and  same  shall  terminate  upon 
the  death  of  th,e  said  James  C.  Young,  pro- 
vided, however,  that  in  the  event  of  the 
death  of  the  said  James  C.  Young  before 
the  expiration  of  this  contract,  his  adminis- 
trators or  assigns  are  to  be  entitled  to  his 
interest  In  the  proceeds  of  all  lands  which 
have  been  sold,  either  for  cash  or  on  credit, 
and  ^all  receive  therefor  the  same  amount 
as  he  himself  would  have  done  had  he  con- 
tinned  to  live.  It  is  understood  and  agreed 
that  said  James  C.  Young  shall  have  no  right 
or  claim  against  the  said  Metcalf  Land  Com- 
pany, or  on  said  lands,  or  any  part  thereof, 
for  commissions,  expenses,  or  otherwise,  ex- 
cept only  for  his  one-half  share  of  the  prof- 
Its  arising  from  said  sales,  to  be  ascertain- 
ed and  divided  as  hereinbefore  mentioned, 
stipulated  and  agreed. 

"In  witness  whereof,  the  said  parties  here- 
to have  hereunto  set  their  hands  and  seals 
the  day  and  year  first  above  written." 

Afterwards,  and  on  or  about  the  18th  day 
of  November,  1905,  the  parties  entered  into 
a  supplementary  contract  for  the  purpose 
of  settling  some  disputes  between  them;  none 
of  them,  however,  relating  to  the  transactions 
mentioned  In  this  action.  The  supplementary 
contract,  so  far  as  material  here,  is  as  fol- 
lows: "As  a  part  of  this  proposition  it  Is 
understood  that  und^r  the  original  contract 
Mr.  Young  has  the  right  to  sell  the  lands  at 
reasonable  figures,  not  less  than  the  apprais- 
ed values,  and  that  It  Is  the  duty  of  the 
company  to  approve  of  such  sales  without 
delay.  And  Mr.  Young  concedes  that  as  to 
all  tracts  of  land  which  he  has  not  contract- 
ed for  sale  or  sold  prior  to  the  expiration 
of  the  ten-year  period  prescribed  in  the  orig- 
inal contracts,  he  will  make  no  further  claim 
upon  or  assert  any  agency  rights  therein 
when  said  ten-year  periods  have  expired, 
and  contracts  for  sale  have  not  been  made." 

The  complaint  contains  17  causes  of  ac- 
tion. Briefly  stated  the  allegations  are:  That 
appellant  is  a  corporation  organized  under 
the  laws  of  New  Jersey;  the  execution  of 
the  contract ;  that  the  respondent  proceeded 
to  carry  out  the  terms  thereof,  and  sold  a 
large  quantity  of  the  lands  at  prices,  and  on 
terms  mutually  satisfactory  to  both  of  said 
parties,  and  in  accordance  with  the  contract; 


that  appellant  duly  approved  of  said  sales; 
that  each  of  the  iwrties  to  this  action  made 
a  profit  after  paying  to  appellant  its  fixed 
charges ;  that  respondent  negotiated  the  sale 
of  one  tract  covered  by  the  contract  on  the 
usual  terms  at  a  fair  price;  that  appellant 
refused  to  sell  at  the  price  named;  and  ar- 
bitrarily fixed  a  higher  price  on  the  land, 
and  declined  to  permit  respondent  to  sell 
land  at  a  fair  price  fixed  by  him.  In  other 
words,  respondent  claims  that  appellant  vio- 
lated the  terms  of  the  contract  by  withdraw- 
ing from  respondent  the  right  given  by  the 
contract  to  determine  the  selling  price  of 
the  land.  As  a  result,  he  was  prevented 
from  selling  the  land,  and  thus  lost  the  prof- 
its which  he  would  have  earned  on  the  sale. 
Each  of  the  other  causes  of  action  is  the 
same,  but  relates  to  different  tracts  of  land. 
The  contract  and  a  list  of  the  lands  owned 
by  appellant  and  their  appraised  value  were 
attached  to  and  made  a  part  of  the  com- 
plaint. The  appellant  answered,  admitting 
its  incorporation  under  the  laws  of  New  Jer- 
sey, the  execution  of  the  contract,  the  owner- 
ship of  the  lands  mentioned  in  the  com- 
plaint, and  their  appraised  value,  that  re- 
spondent sold  a  portion  of  said  lands  at  pric- 
es and  on  terms  mutually  satisfactory,  which 
sales  were  approved  by  the  appellant,  and 
denied  each  and  every  other  allegation  in 
said  complaint. 

This  action  waa  tried  In  the  district  court 
of  Cass  county  before  Judge  Pollock  and  a 
Jury.  Respondent  dismissed  as  to  his  sixth 
cause  of  action.  After  both  parties  rested, 
respondent  asked  leave  to  amend  his  com- 
plaint by  adding  thereto  in  each  of  the  caus- 
es of  action  a  paragraph  to  the  following  ef- 
fect, viz.:  "That  said  purchaser  so  contract- 
ing or  offering  to  purchase  said  land  was  one 
who  was  ready,  willing,  and  able  to  purchase 
the  said  land  on  the  terms  stated."  Appel- 
lant objected  to  the  allowance  of  the  amend- 
ment, and  Insisted  that  it  came  too  late,  hav- 
ing been  made  after  all  the  evidence  was  in, 
which  objection  was  overruled,  and  amend- 
ment allowed. 

At  the  commencement  of  the  trial  appel- 
lant objected  to  the  introduction  of  any  evi- 
dence under  the  complaint,  as  follows:  "The 
defendant  objects  to  the  introduction  of  any 
evidence  In  this  case  upon  the  ground  that 
the  complaint  does  not  state  a  cause  of  ac- 
tion, or  sufficient  facts  to  constitute  a  cause 
of  action,  and  specified  as  grounda  for  the 
objection  that  it  appears  from  the  complaint 
that  the  plaintiff  is  seeking  to  recover  com- 
missions as  a  real  estate  broker  for  the  sale 
of  real  estate;  that  it  appears  that  his  action 
Is  based  upon  a  written  contract  of  agency, 
'Exhibit  r  attached  to  the  complaint,  and 
that  under  such  contract  he  is  entitled  to  no 
commissions  except  upon  sales  actually  made 
and  approved,  and  It  appears  affirmatively 
from  the  complaint  that  no  sales  were  made 
or  consummated  upon  which  he  is  claiming 
commissions ;  the  sales  were  not  approved ; 


Digitizi 


^dbyLiOogle 


1104 


122  NOBTHWBSTBBN  EEPOBTEB. 


af.D. 


further,  that  If  plaintiff's  complaint  be  con- 
strued as  an  action  to  recover  damages  for 
the  arbitrary  refusal  of  the  defendant  to  ap- 
prove the  sales  that  It  does  not  constitute  a 
cause  of  action,  for  the  reason  that  the  com- 
plaint, with  the  contract  attached  thereto, 
shows  aflSrmatively  that  there  was  no  legal 
duty  or  obligation  upon  the  defendant  to  ap- 
prove these  proposed  sales  upon  which  his 
cause  of  action  is  based,  and  this  objection 
Is  made  as  to  each  and  every  one  of  the  17 
causes  of  action  embraced  in  the  complaint" 
Which  objection  was  overruled. 

At  the  close  of  the  respondent's  case  appel- 
lant moved  for  a  directed  verdict,  as  follows: 
"The  plaintiff  having  rested  Its  case,  the  de- 
fendant now  moves  the  court  for  a  directed 
verdict  in  its  favor  upon  all  the  issues  and  as 
to  each  cause  of  action,  upon  the  ground  that 
the  plaintiff  has  failed  to  make  out  a  case, 
and  without  waiving,  and  Intending  to  re- 
serve all  other  grounds  for  this  motion,  the 
defendant  specifies  particularly  the  following 
reasons  for  the  granting  of  its  motions:  (1) 
That  the  plaintiff  has  not  alleged  or  proved 
the  consummation  of  any  sale  of  land  under 
the  contract  attached  to  the  agency  contract 
attached  to  the  complaint,  which  would  en- 
title him  to  a  commission.  (2)  That  the 
plaintiff  does  not  allege,  and  the  proof  does 
not  show,  facts  sufficient  to  entitle  the  plain- 
tiff to  recover  commissions  in  the  absence  of 
the  consummation  of  the  proposed  sales. 
(3)  Upon  the  ground  that  the  undisputed  evi- 
dence shows  that  the  authority  of  the  plain- 
tiff to  sell  at  a  price  of  his  own  making,  or 
at  a  reasonable  price.  If  any  such  authority 
be  had,  was  revoked,  and  terminated  prior  to 
the  making  of  the  sales  which  constitute  his 
causes  of  action;  and  the  only  authority  as 
shown  by  the  undisputed  evidence  which  the 
plaintiff  had  at  the  time  of  making  the  sales 
in  question  was  to  sell  at  the  figures  named 
by  defendant.  The  foregoing  motion  Is  made 
applicable  to  each  and  every  one  of  the  17 
causes  of  action,  and  Is  not  meant  to  be  ex- 
clusive, but  for  the  purpose  of  attracting  the 
court's  attention  to  the  chief  grounds  upon 
which  we  rely  in  this  motion.  And  this  mo- 
tion is  made  with  the  sole  purpose  of  obtain- 
ing a  ruling  upon  a  question  of  law,  and  re- 
serving Its  right  to  a  submission  of  the  is- 
sues of  fact  to  the  jury,  notwithstanding  the 
making  of  this  motion.  That  there  is  no 
pleading  or  competent  evidence  upon  which 
a  recovery  can  be  had  for  a  wrongful  revoca- 
tion of  plaintiff's  agencj  as  to  the  lands  in 
question,  If  there  was  in  fact  a  revocation, 
and  it  was  in  fact  wrongful."  This  motion 
was  denied.  Appellant  rested  without  intro- 
ducing any  evidence.  The  appellant  renewed 
the  motion  for  a  directed  verdict  which  was 
made  at  the  close  of  the  respondent's  case  in 
the  language  and  with  the  reservations  there- 
in stated.  This  motion  was  denied.  The  re- 
spondent then  moved  the  court  to  Instruct 
the  Jury  to  return  a  verdict  in  his  favor  for 
the    sum   of  $7,592.26,   which    motion   was 


granted.    Judgment  was  entered  on  the  ver- 
dict and  appeal  taken  therefrom. 

It  was  stipulated  that  respondent's  share 
of  the  profits  which  he  would  have  made  had 
the  sales  been  approved  by  the  appellant  were 
$7,582.26.  The  terms  of  the  sale  were  not  fix- 
ed in  the  contract,  but  the  evidence  shows 
that  their  course  of  dealing  had  established  a 
form  of  sale  contract,  which  both  parties  un- 
derstood, consented  to,  and  acted  upon.  No 
question  had  been  raised  as  to  respondent's 
right  to  fix  the  selling  price  of  each  tract  un- 
til near  the  end  of  the  contract  period.  On 
April  13,  1906,  appellant  wrote  respondent 
complaining  of  the  prices  at  which  he  was 
selling  the  land,  and  stating  that  it  would  not 
approve  any  more  sales  unless  they  showed 
an  advance  over  previous  ones.  To  this  re- 
spondent replied  that  he  did  not  recognize  ap- 
pellant's right  to  make  any  ruling  that  would 
prohibit  him  from  making  sales  at  reason- 
able  prices.  The  first  sales  made  by  respond- 
ent which  were  disapproved  by  appellant  (un- 
less possibly  one  of  which  the  evidence  is 
not  very  clear)  were  made  during  the  months 
of  May  and  June,  1906,  and  were  disapproved 
by  appellant  on  June  13,  1906.  From  this 
time  on  appellant  Insisted  on  fixing  the  sell- 
ing price  of  the  lands,  but  did  not  famish 
any  new  appraisement  of  the  lands  remain- 
ing unsold  until  September,  October,  and  No- 
vember, 1906.  During  the  period  from  June, 
1906,  until  the  end  of  the  contract  period, 
January  20,  1907,  respondent  sold  some  lands 
at  prices  fixed  by  appellant,  but  at  the  same 
time  denied  the  right  of  appelant  to  fix  ar- 
bitrary prices  on  the  lands.  Between  May 
18,  1906,  and  January  20,  1907,  appellant  re- 
fused to  approve  of  16  sales  made  by  respond- 
ent on  the  grround  that  the  prices  were  Inade- 
quate; these  being  the  sales  involved  in  this 
action.  "In  construing  contracts,  regard  must 
be  had  to  the  surrounding  circumstances 
and  the  situation  of  the  parties;  and  the 
real  intent  of  the  parties  must  be  given  effect 
if  that  can  be  done  without  doing  violence  to 
the  language  of  the  contract"  Stewart  v. 
Marvel,  101  N.  T.  357,  4  N.  E.  743;  Taylor  v. 
E.  M.  S.  Co.,  124  N.  Y.  184,  26  N.  B.  314; 
Jacquin  v.  Boutard,  89  Hun,  437,  35  N.  Y. 
Supp.  496.  "A  contract  must  be  so  inter- 
preted as  to  give  effect  to  the  mutual  inten- 
tion of  the  parties  as  it  existed  at  the  time 
of  contracting  so  far  as  the  same  Is  ascer- 
tainable and  lawful."  Rev.  Codes  1903,  {  5340. 
"A  contract  must  receive  such  an  intepreta- 
tion  as  will  make  it  lawful,  operative,  def- 
inite, reasonable,  and  capable  of  being  car- 
ried into  effect,  if  it  can  be  done  without  vio- 
lating the  intention  of  the  parties."  Rev. 
Codes  1905,  8  5347.  "A  contract  may  be  ex- 
plained by  reference  to  the  circumstances  un- 
der which  it  was  made  and  the  matter  lo 
which  it  relates."  Rev.  Codes  1905,  {  5351. 
"Stipulations  which  are  necessary  to  make  a 
contract  reasonable  or  conformable  to  usage 
are  Implied  in  respect  to  matters  concerning 
which  the  contract  manifests  no  contrary  In- 


Digitized  by  LjOOQ  l€ 


N.'D.) 


TOUNa  T.  METOALP  LAND  OO. 


1106 


tention."  Rev.  Codes  1905,  S  5359.  Applying 
these  principles,  It  is  clear  to  iib  tbat  respond- 
ent bad  the  right  to  fix  the  selling  price  of 
the  land,  provided,  however,  that  no  tract 
could  be  sold  for  less  than  the  appraised  val- 
ue at  the  time  of  the  contract  The  contracts 
of  sale  and  the  terms  of  payment  thereof 
were  subject  to  approval  and  acceptance  by 
appellant  Bat  appellant  could  not  arbitrari- 
ly withhold  its  approval,  and  could  not  with- 
hold its  approval  at  all  if  the  land  sold  at  a 
fair  price,  and  for  not  less  than  its  appraised 
value  as  hereinbefore  stated.  The  measure 
of  respondent's  damages  was  the  profits  he 
would  have  earned  had  the  sales  been  con- 
Bummated.  The  amount  of  these  profits  was 
fixed  by  stipulation.  Appellant,  having  dis- 
approved of  the  proposed  sales  on  an  unten- 
able ground,  prevented  respondent  from  earn- 
ing the  profits  which  he  would  have  earned 
bad  the  sales  been  made.  Taylor  Mfg.  Co.  v. 
Hatcher  (O.  O.)  39  Fed.  440,  8  L.  B.  A.  687; 
Jacquin  ▼.  Bontard,  89  Hun,  437,  85  N.  T. 
Supp.  496;  Taylor  v.  B.  N.  S.  Co.,  124 
N.  X.  184,  26  N.  E.  814;  Falrchlld  v.  Sog- 
ers, 82  Minn.  269,  20  N.  W.  191;  Durkee 
T.  Ounn,  41  Kan.  496,  21  Fac.  637,  13  Am. 
St  Rep.  800;  Hunter  et  al.  v.  Wenatcfaee 
Land  Ca,  50  Wash.  438,  07  Pac.  494.  In 
Durkee  et  al.  v.  Ounn,  supra,  Durkee  &  Stout 
entered  Into  a  written  contract  wltb  Gonn  & 
Marr,  of  which  plaintiif  was  a  member,  by 
the  terms  of  wbich  Ounn  &  Marr  were  given 
the  exdoslve  sale  of  a  tract  of  40  acres  of 
land  belonging  to  defendants,  which  was  plat- 
ted by  said  Ounn  &  Marr  as  part  of  Ft  Scott, 
Kan.  The  land  was  appraised  at  $300  per 
acre,  the  profits  above  tbat  amount  to  be  di- 
vided equally  between  the  contracting  parties, 
except  tbat  the  owners  of  the  land  might 
withdraw  from  the  agreement  that  portion  of 
the  tract  south  of  a  certain  road,  but  if  they 
did  so,  Ounn  &  Marr  had  the  right  to  retain 
It  on  the  terms  stated,  except  the  net  price 
to  Durkee  &  Stout  was  to  be  $350  per  acre. 
Ounn  &  Marr  afterwards  dissolved  partner- 
ship, which  was  known  to  defendants,  and 
Ounn  continued  the  business.  The  property 
advanced  in  value  to  $750  per  acre.  Gunn 
made  some  sales  which  defendants  refused  to 
approve.  They  canceled  the  contract,  and 
prevented  the  plaintlfT  from  making  any  more 
sales.  He  then  brought  an  action  for  dam- 
ages for  breach  of  the  contract  Held,  tbat 
he  was  entitled  to  recover  such  compensation 
as  damages  as  was  equal  in  amount  to  his 
share  of  the  profits  which  would  have  result- 
ed had  the  land  been  sold  by  him. 

In  Hunter  et  al.  v.  Wenatcbee  Land  Com- 
pany, supra,  the  Wenatcbee  Land  Company, 
owning  large  tracts  of  land  in  the  state  of 
Washington,  entered  into  a  written  contract 
with  the  plaintiffs  by  the  terms  of  which 
they  were  to  have  the  exclusive  sale  of  the 
land  at  a  fair  value  and  not  less  than  $2.52 
per  acre.  Out  of  the  proceeds  derived  from 
the  sale  of  said  land  they  were  to  pay  to  de- 
fendants the  sum  of  $1.62  per  acre,  together 
122  N.W.-70 


with  the  interest  thereon  at  the  rate  of  6 
per  cent  per  annum  from  date  of  the  con- 
tract The  remainder  of  the  proceeds  arising 
from  such  sales  to  be  divided  equally,  one- 
half  to  each  party.  This  land  was  chiefly 
valuable  for  timber.  After  making  the  con- 
tract, and  before  any  sales  bad  been  made, 
the  defendant  sold  the  timber  on  said  lands. 
The  plaintiffs  then  brought  an  action  for 
breach  of  contract  The  Jury  found  that 
plaintiffs  would  have  sold  the  land  for  $146,- 
000,  which  was  $2.52  per  acre,  had  not  the 
contract  been  broken  by  the  defendant  Held, 
tbat  the  plaintiffs  were  entitled  to  recover 
the  profits  they  would  have  made,  had  they 
sold  the  land  at  the  price  hereinbefore  men- 
tioned. 

It  is  urged  that  the  court  erred  in  overrul- 
ing appellant's  objection  to  tbe  introduction 
of  any  testimony  in  behalf  of  respondent  un- 
der his  complaint,  in  allowing  respondent  to 
amend  his  complaint  at  the  close  of  the  tes- 
timony, in  denying  appellant's  moticm  for  a 
directed  verdict  and  in  Its  ruling  on  the  ad- 
mission of  evidence  against  the  objections 
of  appellant  Under  our  view  of  the  case, 
as  hereinbefore  stated,  these  rulings  were 
correct  Appellant  makes  a  very  elaborate 
argument  on  the  theory  that  a  broker  is  not 
entitled  to  his  commissions  unless  he  alleges 
and  proves  that  he  found  a  purchaser  who 
was  financially  ready,  able,  and  willing  to 
purchase  on  the  proposed  terms,  and  cites 
a  large  number  of  authorities.  We  have  ex- 
amined the  authorities  thus  cited.  Most  of 
them  hold  tbat  a  broker,  to  recover  his  com-, 
missions  for  producing  a  purchaser  where 
the  sale  is  not  made,  must  show  that  the 
person  presented  by  him  was  able  financially, 
as  well  as  ready  and  willing  to  purchase. 
There  are  other  cases,  however,  which  hold 
that  the  burden  of  proof  is  on  the  principal 
to  show  that  the  person  produced  is  not  re- 
sponsible on  the  ground  that  It  Is  presumed, 
until  the  contrary  appears,  that  the  i)erson 
procured  as  a  purchaser  Is  solvent  and  pe- 
cuniarily able  to  make  the  purchase.  In  our 
opinion  neither  of  these  two  lines  of  authori- 
ties apply  to  the  facts  in  this  case.  It  Is 
undisputed  that  the  parties  had  by  their 
course  of  dealing  for  several  years  estab- 
lished a  form  of  contract  and  certain  terms 
of  sale  deemed  acceptable  to  both  parties. 
The  appellant  found  no  fault  with  the  terms 
of  the  sale,  and  expressed  no  desire  to  change, 
but  refused  to  approve  the  sales  on  the  sole 
ground  that  the  prices  were  inadequate.  This 
he  could  not  do  as  hereinbefore  stated.  Mc- 
Farland  v.  LUlard,  2  Ind.  App.  160,  28  N.  E. 
229,  50  Am.  St  Rep.  234,  was  an  action 
brought  by  tbe  plaintiff  to  recover  commis- 
sions for  finding  a  purchaser  for  some  real 
estate  belonging  to  the  defendant  The  court 
says:  "It  is  doubtless  true  that.  If  the  pur- 
chaser was  not  able  to  buy  and  pay  for  the 
land  upon  the  terms  of  the  contract,  the 
agent  could  not  claim  to  have  procured  a  pur- 
diaser.    But  It  Is  not  always  necessary  that 


Digitized  by 


L-oogte 


1106 


122  NORTHWSSTEBN  REPOBTEB. 


(N.D. 


the  agent,  before  he  will  be  entitled  to  re- 
coTOT,  must  allege  and  prove  the  financial 
ability  of  the  purchaser  as  tie  same  will 
often  be  presumed."  The  court  further  says 
that  this  conclusively  shows  that  the  appel- 
lant repudiated  the  contract  of  sale  not  on 
account  of  the  financial  Inability  to  comply 
with  the  contract,  but  because  the  purchas- 
er's wife  was  dissatisfied,  and  further  says 
that  the  owner  cannot  after  repudiating  the 
sale  on  some  other  ground  than  the  pur- 
chaser's financial  inability  to  complete  the 
purchase  defeat  an  action  for  a  broker's  com- 
mission on  the  last-mentioned  ground  unless 
that  ground  is  made  an  element  of  the  con- 
tract between  the  broker  and  the  owner. 
Colbum  V.  Seymour,  32  Colo.  430,  76  Pac. 
1058,  cited  by  appellant,  was  an  action  by 
a  broker  to  recover  commissions  on  proposed 
sales  which  the  property  owner  refused  to 
make.  The  following  language  is  used:  "Cer- 
tainly he  has  not  been  prevented  from  earn- 
ing his  commissions  by  the  mere  fact  that 
the  defendant  refused  to  sell  the  property 
unless  he  proves  that,  but  for  the  conduct 
of  the  defendant,  the  sale  would  have  been 
consummated."  In  the  case  at  bar  it  was 
stipulated  as  follows:  "That  the  plaintiff's 
one-half  of  the  profits  on  each  of  the  causes 
of  action  which  he  would  have  made  had 
the  offers  been  accepted  by  the  defendant 
were  the  following  amounts,  respectively" — 
and  then  follows  the  amounts  of  the  different 
causes  of  action  which  make  a  total  of  $7,- 
592.26,  the  amount  of  the  verdict  We  think 
the  evidence  shows  that  respondent  would 
have  made  the  sales  as  set  forth  in  his  com- 
plaint, and  the  profits  asked  for,  If  appe- 
lant had  accepted  the  offers  made. 

Appellant  urges  that,  under  the  terms  of 
the  contract,  respondent  was  not  entitled  to 
any  commissions  until  he  secured  an  offer 
whldi  was  accepted  by  his  employer.  We 
do  not  think  the  contract  bears  this  construc- 
tion. It  is  true  that  it  required  all  sales 
negotiated  by  respondent  to  be  made,  sub- 
ject to  the  approval  of  appellant,  but  this 
did  not  mean  that  the  company  could  arbi- 
trarily withhold  its  approval.  To  so  con- 
strue the  contract  would  defeat  its  purpose. 
Taylor  v.  B.  M.  S.  Co.,  124  N.  T.  184,  26 
N.  E.  814.  Appellant  insists  that  respond- 
ent's agency  not  being  coupled  with  an  inter- 
est was  revocable,  and  that,  before  any  of 
the  alleged  sales  upon  which  respondent  re- 
lied, were  made,  appellant  revoked  any  au- 
thority that  respondent  had  to  sell  at  prices 
fixed  by  him  if  he  ever  had  any  such  author- 
ity. However  this  may  be,  appellant  would 
still  be  liable  to  respondent  for  all  damages 
resulting  from  the  breach  of  the  contract 
Hawley  v.  Smith,  45  Ind.  183 ;  Durkee  et  al. 
y.  Gunn,  41  Kan.  496,  21  Pac.  637,  13  Am. 
St  Rep.  300. 

This  is  not  an  action  to  recover  commis- 
sions for  the  sale  of  real  estate,  but  an  ac- 
tion to  recover  damages  for  breach  of  con- 
tract 


Finding  no  reversible  error  in  the  record. 
Judgment  affirmed. 

MORGAN,  C.  J.,  and  FISK  and  SPAI/- 
DING,  JJ.,  concur. 

ELLSWORTH,  X  (dissenting).  I  eaimot 
agree  with  the  construction  placed  by  my  As- 
sociates upon  the  contract  involved  in  the 
case  at  bar  to  the  effect  that  respondent  had 
the  sole  right  to  fix  the  selling  price  of  the 
lands  subject  only  to  the  condition  that  the 
price  should  not  be  less  than  the  value  fixed 
by  the  first  appraisement  The  dause,  "and 
it  is  distinctly  understood  that  before  any 
sale  shall  be  binding  upon  the  said  Metcalf 
Land  Company,  the'  contract  shall  be  approv- 
ed and  terms  of  payment  thereof  accepted  by 
the  said  Metcalf  Land  Company,"  is  obviously 
Intended  as  a  limitation  of  the  power  grant- 
ed to  Toung  to  sell  at  such  a  price  as  he  may 
deem  best;  and  there  is  great  force  in  the 
suggestion  that  it  was  the  original  intent  of 
the  parties  that  appellant  should  approve  the 
contracts  of  sale  with  reference  to  the  price 
at  which  the  land  was  sold  as  well  as  in  oth. 
er  particulars.  The  parties  themselves,  how- 
ever, seem  to  have  agreed  upon  a  certain 
construction  of  this  clause  of  the  contract; 
and,  whether  or  not  their  construction  is  cor- 
rect it  was  acted  upon  to  such  degree  that 
neither  party  should  now  be  heard  to  urge  a 
different  meaning.  This  construction  is  em- 
bodied in  a  writing  subscribed  by  both  par- 
ties, a  clause  from  which  is  quoted  at  length 
in  the  majority  opinion,  and  is  to  the  effect 
"that  under  the  original  contract  Mr.  Young 
has  the  right  to  sell  the  lands  at  reasonable 
figures,  not  less  than  the  appraised  values, 
and  that  it  is  the  duty  of  the  company  to  ap- 
prove of  such  sales  without  delay."  Respond- 
ent was  therefore  not  permitted  to  arbitrarily 
fix  a  price  of  sale  at  any  figure  above  the 
original  appraisement  but  must  sell  only  at 
reasonable  prices;  otherwise  appellant  might 
refuse  to  approve  the  contract  and  such  ac- 
tion on  its  part  would  not  be  a  breach  of  its 
contract  with  Young.  It  was  only  when  the 
price  at  which  he  tendered  a  sale  was  "at  a 
reasonable  figure"  that  appellant  might  not 
arbitrarily  refuse  to  approve  the  contract  of 
sale  on  account  of  the  price.  The  determina- 
tion of  what  prices  were  reasonable  and  what 
unreasonable  was  not  left  to  the  Judgment 
of  either  respondent  or  appellant  but  was  a 
question  for  the  trial  court  under  all  the  cir- 
cumstances of  the  case.  Whether  or  not  the 
figure  offered  for  a  certain  tract  was  reason- 
able depoided  on  several  consideretlona,  im- 
portant among  which  was  the  actual  market 
value  of  the  land  at  the  time  each  sale  was 
made.  A  price  that  was  reasonable  in  1887 
and  1898  might  in  1906  and  1906  be  so  far  be- 
low the  actual  value  of  the  land,  at  that  time, 
as  to  be  very  unreasonable. 

Respondent,  therefore,  could  maintain  hi* 
cause  of  action  only  upon  the  theory  that  he 
sold  the  lands  at  reascmable  prices  and  a  fair 


Digitized  by  VjOOQ  l€ 


N.D.) 


TOUNO  T.  MBTOALF  LAND  00. 


U07 


jiarket  yalue,  which  appeOant  arbitrarily  re- 
fused to  accept  He  assumes  that  proof  of 
such  facta  is  a  necessary  element  of  bis  cause 
of  action  wben  be  alleges  In  his  complaint 
that  the  price  offered  "was  the  reasonable 
and  fair  market  price,  and  was  the  fair  mar- 
ket yalue  per  acre  for  said  tract  of  land,  and 
that  It  was  the  highest  price  that  could  be 
obtained  for  said  land  by  plaintiff."  There 
la  no  presumption  of  law,  however,  that  the 
prices  at  which  respondent  claims  he  sold  the 
lands  were  reasonable  or  a  fair  market  value 
at  the  time  of  the  sale.  Appellant  In  each 
case  claimed  that  the  price  offered  was  below 
the  actual  value  of  the  lands,  and  for  that 
reason  refused  to  approve  the  contract  or  ac- 
cept the  price.  The  denials  of  the  answer 
raised  a  direct  issue  upon  the  allegations  last 
quoted,  and  put  respondent  to  his  proofs. 
Unless,  therefore,  respondent  produced  evi- 
dence sufficient  to  satisfy  a  Jury  that  the 
price  offered  was  reasonable  and  a  fair  mar- 
ket value,  appellant  cannot  be  held  for  breach 
of  contract  Respondent  had  no  more  right 
to  fix  an  arbitrary  valuation  on  the  land  than 
appellant  had  to  arbitrarily  refuse  to  ap- 
prove a  contract  of  sale  made  at  a  reasonable 
price.  There  is  absolutely  no  proof  that  the 
prices  for  which-  respondent  claims  to  have 
sold  the  lands  were  reasonable  unless  his  as- 
sertion that  in  certain  cases  the  prices  offer- 
ed were  "reasonable  and  acceptable"  can  be 
regarded  as  such  proof.  On  the  other  band, 
appellant  claimed  to  have  had  an  appraise- 
ment made  of  the  lands  by  disinterested  par- 
ties shortly  before  the  time  the  alleged  sales 
were  made,  and  that  the  price  sold  for  was 
In  each  case  below  the  appraisement  Such 
appraisement  would  seem  to  be  entitled  to 
much  greater  weight  as  evidence  of  the  ac> 
tnal  value  of  the  lands  than  the  bald  conclu- 
sion of  respondent  that  the  prices  offered 
were  "reasonable  and  acceptable."  In  any 
event  the  question  of  reasonable  price  was 
clearly  one  for  the  Jury,  and  should  have  been 
submitted  to  it  as  demanded  by  appellant  at 
the  dose  of  the  trial. 

The  question  whether  the  action  is  one  to 
recover  a  broker's  commission  or  for  dam- 
age for  breach  of  contract  has  received  a 
great  deal  of  attention  in  the  briefs  of  coun- 
sel; but  whatever  distinctions  may  be  made 
in  the  character  of  these  actions,  respectively, 
there  Is  little  distinction  in  the  proof  requir- 
ed to  establish  a  measure  of  damage.  In  the 
first  case,  in  order  to  recover,  respondent 
must  show  that  he  had  produced  a  purchaser 
ready,  willing,  and  able  to  carry  out  a  con- 
tract of  sale  at  a  reasonable  price,  and  that 
appellant  then  refused  to  convey.  In  the  sec- 
ond case  he  must  show  a  breach  of  contract 
by  appellant  and  prove  "detriment  proxi- 
mately caused  thereby,  or  which  in  the  ordi- 
nary course  of  things  would  be  likely  to  re- 
sult therefrom."  Section  6563,  Rev.  Codes 
1906.  Such  damages  must  be  clearly  ascer- 
tainable In  both  their  nature  and  origin. 
Tney  must  be  actual,  not  speculative;  found- 


ed on  fact,  not  conjecture.  Hudson  v.  Archer, 
9  S.  D.  240,  68  N.  W.  B41.  In  order  that  he 
might  recover  such  damages,  respondent  must 
satisfy  the  Jury  that  be  could  and  would 
have  made  bona  fide  sales  of  the  lands  to  re- 
sponsible purchasers  for  their  reasonable 
market  value  within  the  time  fixed  by  his 
contract  if  he  had  not  been  prevented  from 
80  doing  by  the  unauthorized  acts  of  appel- 
lant 

Respondent  seems,  upon  the  trial,  to  have 
recognized  that  it  was  Incumbent  on  him  to 
make  proof  of  the  fact  that  in  each  case  of 
an  alleged  sale  "said  purchaser  so  contract- 
ing or  offering  to  purchase  said  land  was  one 
who  was  ready,  willing,  and  able  to  purchase 
the  said  land  on  the  terms  stated,"  as  he  ask- 
ed leave  to  amend  his  complaint  by  inserting 
such  allegation;  and  It  would  seem  that 
where  he  was  relying  for  proof  of  his  damage 
upon  sales  actually  made  that  he  correctly 
assumed  to  show  by  this  means  that  bis  sales 
were  bona  fide  and  made  to  responsible  par- 
ties. The  allegation  inserted  by  amendment 
was  covered  by  the  denials  of  appellant's  an- 
swer, and  respondent  was  thus  put  to  his 
proof.  He  offered  no  evidence,  however,  from 
which  a  Jury  might  reasonably  infer  either 
that  he  had  purchasers  who  were  ready,  will- 
ing, and  able  to  purchase  the  land  on  the 
terms  stated,  or  that  the  lands  were  sold  In 
good  faith  to  responsible  purchasers  for  their 
reasonable  market  value  at  the  time  of  sale ; 
and  at  the  close  of  the  trial,  although  appel- 
lant Insisted  that  these  questions  together 
with  the  other  questions  of  fact  arising  In 
the  case  be  submitted  to  the  Jury,  the  trial 
court  directed  a  general  verdict  in  favor  of 
respondent. 

In  the  status  of  the  case  at  the.  close  dl 
the  testimony,  in  my  opinion,  respondent's  evi- 
dence under  the  most  favorable  construction 
falls  short  of  proof  of  a  cause  of  action  ei- 
ther for  the  recovery  of  a  broker's  commis- 
sion or  for  damages  for  breach  of  contract 
The  entire  failure  of  any  competent  evidence 
upon  several  essential  points  might  have  Jus- 
tified the  trial  court  in  directing  a  verdict  for 
defendant  Certainly,  in  view  of  the  vague, 
doubtful,  and  conflicting  character  of  the  evi- 
dence offered  on  these  points,  the  trial  court 
was  not  warranted  In  holding  that  intelligent 
minds  might  not  fairly  differ  in  the  conclu- 
sions necessary  to  sustain  respondent's  cause 
of  action  and  in  directing  a  verdict  for  the 
plaintiff. 

On  Rehearing. 

GARMODY,  J.  A  rehearing  was  granted 
in  this  case,  and  elaborate  and  exhaustive 
oral  and  written  arguments  were  made  on 
both  sides.  After  carefully  reconsidering 
the  case,  we  are  convinced  that  the  result 
reached  in  the  former  opinion  is  right  On 
the  trial  of  this  action  in  the  district  court 
defendant  contended  that  the  evidence  did 
not  show  facts  sufficient  to  entitle  the  plain- 
tiff to  recover  commissions  in  the  absencs 


Digitized  by  VjOOQ  l€ 


1108 


122  NORTHWESTERN  REPORTER. 


(N.IX 


of  the  consammation  of  the  proposed  sales; 
that  the  undisputed  evidence  showed  that 
tha  authority  of  the  plaintiff  to  sell  at  a 
price  of  bis  own  making,  or  at  a  reasonable 
price,  If  any  gach  authority  he  had,  was  re- 
voked and  terminated  prior  to  the  making 
of  the  sales  which  constituted  his  causes  of 
action,  and  the  only  authority,  as  shown 
by  the  undisputed  evidence  that  the  plaintiff 
had  at  the  time  of  making  the  sales  in  ques- 
tion, was  to  sell  at  figures  named  by  the 
defendant  In  other  words,  that  defendant 
had  the  right  to  fix  the  selling  prices  of 
the  land.  We  do  not  so  construe  the  con- 
tract or  the  evidence.  Plaintiff  had  the  right 
to  sell  the  lands  at  reasonable  figures,  not 
less  than  the  appraised  values.  The  evidence 
shows  that  the  price  offered  and  submitted  to 
the  defendant  by  plaintiff  for  each  tract  of 
land  in  controversy  was  a  reasonable  and 
fair  price  for  said  tract  The  evidence 
abundantly  discloses  plaintHTs  qualifications, 
as  an  expert  to  testify  upon  the  question  of 
the  reasonable  values  of  the  lands  In  contro- 
versy. Paragraph  2  of  the  contract  shows 
that  before  it  was  entered  into  plaintiff  had 
caused  to  be  made  a  careful  examination  of 
the  lands  and  an  appraisement  thereof, 
which  appraisement  was  marked  opposite 
each  tract,  and  was  accepted  by  the  defend- 
ant and  attached  to  the  contract  Paragraph 
3  of  the  contract  shows  that  plaintiff  had 
authority  to  sell  the  land,  or  any  part  there- 
of, at  such  a  price  as  he  might  deem  best 
not  less  than  the  appraised  value  named  in 
the  schedule.  After  the  contract  had  been 
In  force  more  than  eight  years,  a  supplemen- 
tal contract  was  entered  Into  which  shows 
that  plaintiff  had  the  right  to  sell  the  lands 
at  reasonable  figures,  not  less  than  the  ap- 
praised values,  and  that  it  is  the  duty  of. 
the  company  to  approve  of  such  sales  with- 
out delay.  The  defendant  had  accepted 
.plaintiff's  appraisement  of  the  land.  Plain- 
tiff testified  that  the  price  offered  for  each 
tract  of  land  in  controversy  l^  each  proposed 
purchaser  was  deemed  by  him  reasonable 
and  advisable  to  accept 

Appellant  strenuously  contends,  as  it  did 
on  the  first  argument,  that  plaintiff  had  to 
show  by  competent  evidence  that  each  pro- 
posed purchaser  was  able,  ready,  and  willing 
to  make  the  purchase.  This  question,  as  far 
as  the  record  shows,  was  not  raised  in  the 
court  below,  but  assuming  its  contention  in 
this  respect  to  be  correct  we  think  the  evi- 
dence sufficiently  shows  that  each  purchaser 
'was  able,  ready,  and  willing  to  complete  his 
'purchase,  and  that  each  sale  would  have 
been  made  if  the  defendant  had  approved  of 
it  The  proposed  purchaser  for  each  tract 
of  land  made  a  binding  written  offer  which 
defendant  could  enforce  as  soon  as  it  ac- 
cepted the  said  offer.  We  think  the  evi- 
dence shows  that  defendant  by  its  conduct, 
prevented  the  plaintiff  from  earning  his  one- 
-half  of  the  profits  on  each  of  the  causes  of 


action,   the   amount   of   which  profits   was 
agreed  upon. 

MORGAN,  0.  X,  and  FISK  and  SPAIi- 
DING,  JX,  concur. 

ELLSWORTH,  X  (dissenting).  I  deem 
that  a  better  understanding  of  all  matters 
passed  upon  by  the  court  in  this  case  can 
be  secured  by  making  the  points  considered 
on  rehearing  the  subject  of  a  separate  dis- 
sent as  suggested  by  the  arrangement  adopt- 
ed in  the  majority  opinion.  The  remarkable 
shift  in  position  of  the  parties  which  took 
place  upon  the  rehearing  of  this  appeal  ren- 
ders such  division  into  parts  almost  neces- 
sary. Further  than  this,  it  better  serves  to 
illustrate  the  change  in  view  of  the  parties 
and  of  a  majority  of  the  court  between  the 
first  hearing  and  rehearing  and  to  bring  out 
perhaps  somewhat  more  clearly  the  reasons 
for  my  dissent 

As  shown  by  an  examination  of  the  opin- 
ion upon  the  first  hearing,  the  basis  and 
groundwork  of  the  decision  was  a  construc- 
tion of  the  contract  Involved  by  a  majority 
of  the  court  to  the  effect  "that  the  dealer 
[that  is,  the  respondent]  had  the  sole  right 
to  fix  the  selling  price  of  the  lands."  It 
was  also  contended  by  respondent,  and  held 
in  that  opinion,  that  the  respondent  having 
been  prevented  by  act  of  appellant  from  mak- 
ing sales  under  the  contract,  was  entitled  to 
recover  the  profits  he  would  have  made  bad 
the  offers  received  by  him  been  accepted 
without  reference  to  the  usual  test  of  wheth- 
er or  not  the  purchaser  presented  by  him  was 
ready,  willing,  and  able  to  make  the  pur- 
chase. My  dissait  to  that  opinion  was  based 
upon  the  considerations:  (1)  That  a  proper 
construction  of  the  contract  did  not  give  re- 
spondent the  absolute  right  to  fix  the  selling 
price  of  the  lands,  but  required  him  to  make 
sales  at  reasonable  figures  not  less  than  the 
appraised  values;  and  (2)  that  the  sales  not 
having  been  consummated,  in  order  to  prove 
a  cause  of  action  against  appellant  respond- 
ent must  among  other  things,  produce  satis- 
factory and  competent  evidence  that  the  pur- 
chasers whose  offers  he  claimed  to  hold  were 
ready,  willing,  and  able  to  make  the  pur- 
chase. Both  of  these  propositions  were  com- 
bated by  respondent  In  his  original  brief 
and  on  bis  first  argument  of  £he  case.  On 
the  rehearing,  in  strong  contrast  to  his  first 
contention,  respondent  conceded  that  the  cor- 
rect construction  of  that  clause  of  the  con- 
tract providing  for  fixing  a  selling  price  is 
that  "Toung  had  no  right  to  arbitrarily  fix 
the  selling  price;  on  the  contrary,  be  was 
bound  to  act  with  diligence  in  good  faith 
and  reasonably  and  to  put  forth  his  efforts  to 
get  a  reasonable  price  for  the  land  and  as 
much  as  he  could.  And,  If  he  failed  to  ob- 
serve any  or  either  of  the  three  implied  ob- 
ligations under  which  the  contract  placed 
him,  it  would  be  a  breach  of  duty,  and  his 
act  would  impose  no  obllcaticMi  on  the  oluer 


Digitized  by  VjOOQ  l€ 


N.D.) 


YOUNG  T.  METCALF  LAND  CO. 


1109 


party."  This  plainly  Is  a  coDce8Bl(»i  that.  In 
order  to  maintain  thU  action,  Young  must 
prove  that  the  offers  of  purchase  which  he 
claimed  to  hold  were  made  at  reasonable 
prices.  Such  Is  admitted  by  the  modified 
view  of  the  majority  of  the  court  on  rehear- 
ing in  the  words:  "Plaintiff  had  the  right 
to  sell  the  land  at  reasonable  figures  not 
leas  than  appraised  value."  This  sweeping 
reversal  of  a  fundamental  principle  of  the 
first  decision  of  the  majority  of  the  court 
led  naturally  to  the  expectation  of  a  reversal 
of  the  decision  itself ;  and  the  fact  that  the 
conclusion  arrived  ut  is  the  same  emphasizes 
the  fact  that  it  is  the  result  only  and  not 
the  reasoning  of  the  former  opinion  that  is 
held  to  be  right  All  changes  of  attitude 
either  upon  the  part  of  respondent  or  of  the 
majority  of  the  court  are  not,  however,  so 
remarkable  In  my  opinion  as  the  holding 
that  notwithstanding  this  complete  reversal 
of  the  basic  principle  of  the  former  decision 
"the  evidence  shows  that  the  price  offered 
and  submitted  to  the  defendant  by  plain- 
tiff for  each  tract  of  land  in  controversy 
was  a  reasonable  and  fair  price  for  said 
tract."  The  only  evidence  In  the  record  that 
can  be  said  to  touch  even  remotely ,  upon 
the  question  of  the  reasonable  value  repre- 
sented by  the  prices  named  in  the  offers  to 
purchase  Is  contained  In  respondent's  own 
assertion  that  the  price  offered  was  one 
which  he  deemed  "reasonable  and  accepta- 
ble." This  statement  la  made  without  the 
slightest  preliminary  showing  that  the  plain- 
tiff had  any  acquaintance  whatever  with  the 
tract  of  land  concerning  which  he  testified 
or  with  the  value  of  lands  of  that  character 
In  the  community  in  which  the  land  lay. 
More  than  this,  he  did  not  attempt  to  say 
what  was  the  actual  value  of  lands  of  that 
quality  In  the  locality  in  which  these  were 
situated,  but  gave  simply  his  opinion  as  to 
the  value  that  to  a  dealer  In  lands  under  the 
circumstances  of  this  sale  was  reasonable 
and  acceptable. 

The  only  support  to  such  evidence  sug- 
gested by  the  majority  opinion  is  that  "the 
evidence  abundantly  discloses  plalntlfTs  qual- 
ifications as  an  ezi)ert  witness  to  testify 
on  the  question  of  the  reasonable  values  of 
the  land  in  controversy."  I  do  not  think 
that  It  has  ever  been  held  In  any  court  that 
the  value  of  real  estate  is  a  proper  subject 
for  expert  testimony,  and  know  of  no  reason 
why  rules  of  evidence  should  be  relaxed  to 
permit  the  introduction  of  testimony  of 
doubtful  or  inferior  quality  upon  a  question 
of  this  character,  where,  as  in  this  case,  the 
subject  of  valuation  is  spread  out  before  the 
world.  A  statement  of  value,  even  when 
made  In  absolute  terms  by  a  witness  ac- 
quainted with  the  land  and  with  going  prices 
in  the  community,  has  in  it  a  large  element 
of  opinion  or  conclusion.  To  permit  a  wit- 
ness whose  qualification  is  simply  that  of  an 
expert  in  the  sale  of  lands  to  express  an 
opinion  that  a  certain  sum  is  a  reasonable 


value  for  lands  with  which  be  Is  wholly  un- 
acquainted means  simply  to  build  one  con- 
clusion on  another  and  thus  to  produce  a  re- 
sult doubly  fallacioua  The  question  of  the 
value  of  these  lands  was  one  co^ceruin;; 
which  any  person  acquainted  with  the  lands 
and  with  the  values  of  real  estate  in  the  lo- 
cality in  which  they  lay  was  competent  to 
testify.  There  is  no  question  but  that  such 
witnesses  could  have  been  produced.  Such 
being  the  case,  why  should  the  mere  conclu- 
sion of  a  dealer  who  lived  300  miles  or  more 
distant  from  the  lands,  and  who,  so  far  as  the 
evidence  shows,  had  acquaintance  neither  with 
the  quality  nor  the  value  of  the  lands,  be  re- 
ceived as  competent  evidence?  The  majority 
opinion  states  that  "paragraph  2  of  the  con- 
tract shows  that  before  it  was  entered  into 
plaintiff  had  caused  to  be  made  a  careful  ex- 
amination of  the  lands  and  an  appraisement 
thereof,  which  appraisement  was  marked  op- 
posite each  tract,  and  was  accepted  by  the 
defendant  and  attached  to  the  contract."  It 
Is  true  that  the  contract  contains  such  clause ; 
but  It  was  executed  on  the  20th  day  of  Janu- 
ary, 1897,  more  than  10  years  before  the  trial 
of  this  action;  and  it  is  difficult  to  under- 
stand how  an  appraisement  made,  not  by  re- 
spondent personally,  but  merely  under  his 
supervision,  could  qualify  him  to  testify  as  a 
competent  witness  as  to  the  reasonable  value 
of  the  lands  at  the  time  of  trial.  Even  though 
he  had  seen  the  lands  at  the  time  of  the  ap- 
praisement, the  change  in  value  that  had 
taken  place  in  the  period  of  time  that  had 
elapsed  would  make  it  necessary  for  him  to 
show  that  he  was  still  familiar  with  the 
prices  of  land  in  that  locality.  The  fact  that 
appellant  accepted  the  appraisement  made 
under  respondent's  direction  at  this  remote 
date  it  must  in  fairness  be  admitted  does  not 
in  any  manner  bind  it  to  estimates  made  by 
him  10  years  later;  and  in  the  changed 
view  of  the  majority  of  the  court  in  refer- 
ence to  respondent's  right  to  fix  prices  his 
statement  that  the  price  offered  was  "accept- 
able" or  advisable  to  accept  adds  not  the 
slightest  weight  to  his  testimony.  While 
counsel  for  respondent  does  not  still  concede 
that 'it  was  necessary  for  him  to  show  upon 
the  trial  that  the  purchasers  offered  were 
ready,  able,  and  willing  to  make  the  pur- 
chase, the  majority  of  the  court  in  its  opin- 
ion on  rehearing  concedes  that  it  was  neces- 
sary; but  holds  as  it  did  with  respect  to 
proof  of  reasonable  value  that  this  fact  is 
sufficiently  shown  by  the  evidence.  The  evi- 
dence in  the  record  accepted  by  the  majority 
of  the  court  as  sufficient  for  the  purpose  is 
that  "the  proposed  purchaser  for  each  tract 
of  land  made  a  binding  written  offer  which 
defendant  could  enforce  as  soon  as  it  accept- 
ed the  said  offer."  Such  evidence  is,  in  my 
opinion,  more  entirely  inadequate  for  the  pur- 
pose than  that  offered  to  prove  reasonable 
value.  There  can  be  no  question,  I  think, 
but  that  appellant  might  without  breach  of 
its  contract  have  refused  to  approve  of  an  of- 


Digitized  by  LjOOQ  l€ 


1110 


122  NOBTHWSSTERN  BBFORTBB. 


(N.D. 


fer  of  purchase,  though  made  at  a  reasonable 
price,  when  It  t(new  the  party  making  it  to  be 
entirely  Irresponsible  financially,  In  no  condi- 
tion to  comply  .with  the  terms  of  sale,  and 
against  whom  a  claim  for  damages  could  not 
be  enforced  In  case  he  failed  to  carry  out  the 
contract  It  would  not  be  contended  for  a 
moment,  I  think,  that.  If  respondent  made 
sales  to  persons  of  this  character  and  appel- 
lant refused  to  carry  them  out,  respondent 
could  be  said  to  hare  sutCered  damage  by  Its 
failure  so  to  do. 

As  said  in  a  well-consldered  opinion  of  the 
Supreme  Court  of  Colorado:  "Refusal  of  the 
defendant  to  consummate  the  sale  has  not 
damaged  the  plaintitf  unless  be  can  show  that 
If  the  defendant  bad  carried  out  his  con- 
tract the  sale  would  have  been  made.  How 
can  he  show  this  except  by  proving  that  at 
the  time  the  contract  was  repudiated,  as 
claimed,  he  was  In  a  position  to  have  effected 
a  sale  in  conformity  with  the  conditions  nn- 
der  which  the  property  was  placed  in  his 
hands?  Certainly  he  has  not  been  prevented 
from  earning  his  commission  by  the  mere 
fact  that  defendant  refused  to  sell  the  proper- 
ty unless  he  proves  that,  but  for  the  conduct 
of  the  defendant,  the  sale  would  have  been 
consummated.  The  refusal  of  the  owner  to 
sell  according  to  contract  does  not  prove,  nei- 
ther does  It  raise  a  presumption,  that  the  al- 
leged purchaser  was  able  to  purchase,  but 
renders  the  owner  liable  to  the  broker  for 
commissions,  the  same  as  though  the  sale 
had  actually  been  effected,  provided  the  lat- 
ter establishes  that  the  proposed  purchaser 
was  ready,  able,  and  willing  to  make  the  pur- 
chase upon  the  terms  stipulated  by  the  owner 
to  the  broker.  The  repudiation  of  the  con- 
tract by  the  defendant  did  not  change  the 
rule  of  law  that  the  plaintiff  must  make  out 
a  prima  fade  case,  and  establish  a  state  of 
facts  from  which  it  appears  that  he  had 
earned  his  commissions.  In  order  to  do  this, 
even  though  the  defendant  had  refused  to 
sell,  it  was  Incumbent  upon  the  plaintiff  to 
prove  that  at  the  time  or  times  when  ac- 
cording to  his  claim  he  had  the  right  under 
bis  contract  with  the  defendant  to  effect  a 
sale  that  he  had  a  purchaser  ready,  able,  and 
willing  to  take  the  property  upon  the  terms 
and  coudltlons  under  which  the  defendant 
had  agreed  to  sell.  •  •  •  While  it  Is 
true  that  there  seems  to  be  some  conflict  of 
authority  on  the  question  of  whether  or  not 
It  was  necessary  for  the  broker  to  prove  the 
financial  ability  of  the  purchaser.  In  those 
cases  where  the  owner  refuses  to  carry  out 
the  contract  of  sale,  we  are  of  opinion  that 
the  great  weight  of  authority  and  the  well- 
considered  cases  on  the  subject  require  plain- 
tiff to  make  such  proof,  because  he  must 


show,  before  he  is  entitled  to  recover  his 
commissions,  that  he  performed  those  actions 
which,  according  to  the  contract  of  his  em- 
ployment, It  Is  necessary  for  him  to  perform 
tn  order  to  become  entitled  to  the  compensa- 
tion agreed  upon."  Colbum  v.  Seymour,  32 
Colo.  430,  76  Pac.  1058.  If  the  effect  of  the 
decision  In  this  case  Is  to  establish  as  a  rale 
of  practice  In  the  courts  of  this  state  that  a 
broker  claiming  commissions,  in  cases  In 
which  the  owner  refuses  to  convey,  may 
prove  that  he  has  procured  a  purchaser  ready, 
willing,  and  able  to  make  a  purchase  In  any 
amount  by  simply  producing  a  written  offer 
to  purchase,  madefy  some  unknown,  obscure, 
and,  perhaps,  wholly  Irresponsible  person,  I 
believe  that  the  Innovation  wUl  be  both  dan- 
gerous and  demoralizing.  The  courts  of  last 
resort  of  but  one  state,  Minnesota,  have  ap- 
proved such  practice.  It  has  been  squarely 
repudiated  by  the  Supreme  Court  of  Iowa, 
which  announces  a  safer  rule  In  better  ac- 
cord, not  only  with  the  general  principles  of 
evidence,  but  with  the  current  of  authority 
on  this  point,  in  these  words:  "We  think 
that.  In  order  to  entitle  plalntifTs  to  recover, 
something  more  than  a  mere  offer  to  pur- 
chase should  be  shown  by  them.  Such  an  of- 
fer could  be  made  by  one  without  means,  and 
who  Is  In  no  condition  to  comply  with  the 
terms  of  the  sale,  and  against  whom  a  claim 
for  damages,  resulting  from  a  failure  to  per- 
form the  contract  of  purchase,  could  not  be 
enforced.  An  offer  from  such  an  one  ought 
not  to  be  considered  as  constituting  the  per- 
formance of  plalntifla'  undertaking  to  negoti- 
ate the  sale  of  the  land.  As  the  pecuniary  re- 
sponsibility of  the  purchasers  was  or  ought 
to  hare  been  known  to  plaintiffs,  and  as  up- 
on It  depended  the  performance  of  their  con- 
tract with  defendant,  the  burden  rested  upon 
them  to  show  it.  These  conclusions  are  sup- 
ported by  Coleman's  Ex'rs  v.  Meade,  13  Bush 
(Ky.)  358,  and  McGavock  v.  Woodlief,  20 
How.  221,  16  I..  Ed.  884."  Iselln  et  al.  v. 
Grlfllth,  62  Iowa,  668,  18  N.  W.  302.  Addi- 
tional support  to  this  rule  Is  to  be  found  in 
Plynn  v.  Jordal,  124  Iowa,  457,  100  N.  W. 
326;  Leahy  r.  Hair,  83  111.  App.  461;  Zeld- 
ler  V.  Walker,  41  Mo.  App.  118 ;  Klmberly  v. 
Henderson,  29  Md.  612;  Nolan  ▼.  East,  132 
111.  App.  634. 

Of  the  decision  of  the  majority  of  the 
court  as  It  now  stands  as  compared  with  the 
conclusions  announced  on  the  first  hearing 
of  the  case  It  may  truly  be  said  that  the 
last  state  Is  worse  than  the  first.  In  that  the 
rehearing  seems  to  have  resulted  only  In  the 
adoption  of  what  I  believe  to  be  an  unsound 
rule  of  practice,  which,  if  sustained,  can 
scarcely  fall  to  be  productive  of  confusion.  If 
nothing  worse.  In  future  cases. 


Digitized  by 


Google 


K.D.) 


BTATB  V.  WlNCHICSTEB. 


1111 


STATB  T.  WINCHBSTEE,  District  Judge, 
et  ai. 

(Sapieme  Court  of  North  Dakota.    Nor.  6^ 
1909.) 

1.  CBufiRAi,  Law  (S§  121,  llSO*)— Changk  or 

VeNUB— DISCBKTION    OF   COUBT— REVIEW. 

Ckinstruing  section  9931  of  the  Revised 
Codes  of  1905,  which  provides,  in  substance,  that 
the  state's  attorney,  on  behalf  of  the  state, 
may  apply  for  a  removal  of  a  criminal  action, 
and  the  court,  being  satisfied  that  it  will  pro- 
mote the  ends  of  justice,  may  order  such  re- 
moval, held,  that  the  granting  or  denying  of  an 
Application  duly  made  by  the  Attorney  General 
for  a  change  of  the  place  of  trial  of  a  criminal 
action  on  the  ground  that  an  impartial  trial 
cannot  be  had  in  the  county  where  the  action  is 
finding  is  a  matter  within  the  sound  discretion 
of  the  court  to  which  the  application  is  made, 
and  its  ruling  will  not  be  disturbed  except  for 
an  abuse  of  discretion. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  §i  241,  3044;  Dec.  Dig.  SS  121, 
1150.*] 

2.  CBniiRAi,  Law  ({  124*)— Ceanob  of  Venue 
— Gbounds. 

The  fact  that  the  defendant  as  sheriff  sub- 
poenaed the  jury  might  be  sufficient  cause  for  a 
challenge  to  the  panel,  but  is  not  cause  for  a 
change  of  venae. 

[EM.  Note. — For  other  cases,  see  Criminal 
Law,  Dec.  Dig.  {  124.*] 

3.  Criminai,  Law  (5  121»)— Change  of  Venue 
— dlscbetion  of  coubt. 

Upon  the  showing  in  this  case  this  court 
is  not  prejmred  to  sa^  that  there  was  an  abuse 
of  discretion  in  denymg  the  motion  of  the  At- 
torney General  for  a  change  of  venue. 

[Ed.  Note.— For  other  cases,  see  Criminal 
Law,  Cent  Dig.  $  241;   Dec  Dig.  J  121.*] 

Spalding  and  Ellsworth,  JJ.,  dissenting. ' 
(Syllabus  by  the  Court.) 

Original  application  by  the  State  of  North 
Dakota  for  a  writ  of  certiorari  to  the  district 
-court  of  the  Sixth  Judicial  District  and  the 
Honorable  W.  H.  Winchester,  Judge  thereof. 
Writ  denied. 

Andrew  Miller,  Atty.  Gen.,  for  the  State. 
J^ewton  &  Dullam,  for  respondeat 

CABMODY,  J.  This  is  an  application  for 
-an  original  writ  of  certiorari  on  behalf  of 
the  state,  the  plaintiff,  in  State  y.  Duncan 
J.  McGillis.  On  the  return  day  both  parties 
-appeared  by  counsel,  submitted  their  argu- 
ments, and  stipulated  that  the  case  might 
be  disposed  of  on  its  merits  on  the  moving 
papers  of  the  Attorney  General  and  the  re- 
turn of  the  respondent 

On  June  1,  1909,  the  Attorney  General  filed 
an  Information  In  the  district  court  of  Bur- 
leigh county  cliarglng  Duncan  J.  McGillis 
with  the  crime  of  knowingly  permitting  a 
■building  owned  by  him  to  be  used  for  the 
purpose  of  unlawful  dealing  in  Intoxicating 
liquors  in  violation  of  law.  On  the  same  day 
lie  pleaded  not  guilty  to  said  information. 
On  June  3d  the  state,  by  the  Attorney  Gen- 
■eral,  filed  in  said  district  court  a  motion  for 
an  order  changing  the  place  of  trial  of  said 


action.  The  motion  was  based  upon  the 
attidaylt  of  the  Attorney  General,  which  al- 
leged, in  substance:  That  In  his  opinion  the 
state  could  not  have  a  fair  and  impartial 
trial  in  Burleigh  county.  That  the  people  of 
said  county  were  so  prejudiced  against  the 
prosecution  and  conviction  of  offenders 
against  the  various  statutes  of  this  state  pro- 
hlbiUng  the  illegal  sale  of  Intoxicating  liq- 
uors and  unlawful  use  of  buildings  for  such 
purpose  that  said  laws  have  ever  since  their 
enactment  been  openly  and  notoriously  vio- 
lated by  numerous  and  divers  persons  in  the 
city  of  Bismarck  and  various  parts  of  the 
county  with  the  knowledge  and  tacit  approv- 
al of  the  people  generally  and  of  the  peace 
officers,  and  that  attempts  to  punish  offend- 
ers against  such  laws  have  generally  been 
met  with  determined  resistance  and  refusals 
to  convict  or  indict  without  regard  to  the 
evidence  furnished  by  the  prosecution,  and 
that  at  this  term  of  court  one  Bartheau  on 
his  third  trial  for  violation  of  the  prohibition 
law  was  acquitted.  That  the  defendant  in 
this  case  is  the  duly  elected,  qualified,  and 
acting  sheriff  of  this  county,  and  as  such 
sheriff,  by  himself  and  bis  deputies,  sub- 
poenaed the  present  Jury,  and  as  such  sheriff, 
through  himself  and  his  deputies,  has  charge 
of  such  Jury.  That,  In  addition  to  being 
sheriff,  he  is  an  active  politician,  and  one 
James  Myers,  who  is  now  under  arrest  for 
violation  of  the  prohibition  law,  was  at  the 
time  of  his  arrest  a  tenant  of  the  defendant 
herein  In  the  defendant's  building  described 
In  the  Information.  That  another  defendant, 
Joseph  Higglns,  who  was  arrested  at  the 
same  time  charged  with  keeping  a  couunou 
nuisance,  was  a  tenant  of  one  E.  G.  Patter- 
son. That  said  B.  G.  Patterson  for  many 
years  has  been  a  prominent  politician  in  this 
county,  and  is  now  chairman  of  the  board  of 
county  commissioners.  That  said  E.  G.  Pat- 
terson and  the  defendant  McGillis  up  to  this 
date  and  for  many  years  last  past  have  been 
at  all  times  directly  or  indirectly  Interested 
In  places  where  intoxicating  liquors  have 
been  sold  in  violation  of  law,  or  directly  en- 
gaged in  the  sale  of  Intoxicating  liquors  In 
violation  of  law,  and  for  many  years  have 
been  the  leading  Infiuence  in  this  county 
that  has  made  possible  the  prevention  of  the 
enforcement  of  the  prohibition  law,  as  affiant 
is  Informed  and  verily  believes,  and  that  the 
prestige  of  said  E.  G.  Patterson  arid  of  the 
said  Duncan  J.  McGillis,  when  combined.  Is 
so  great  that  affiant  believes  that  a  Jury  can- 
not be  had  in  the  county  that  would  give  the 
state  a  fair  trial  In  the  case  of  the  state  of 
North  Dakota  against  Duncan  J.  McGillis. 
That  while  said  motion  for  a  change  of  the 
place  of  trial  was  still  pending  and  imdeter- 
mined,  and  on  June  4,  1909,  the  Attorney 
General  made  a  motion  and  requested  the 
respondent  to  call  in  a  Judge  of  another  dis- 
trict court  of  this  state  to  preside  at  the  trial 


■e«  lame  topic  and  lectlon  NUMBKR  in  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  Indeze* 


Digitized  by 


Google 


1112 


122  NORTHWESTERN  REPORTER. 


(N.D. 


Of  said  action.    On  Jnne  10th  the  respondent 
denied  the  motion  of  the  state  for  a  change 
of  the  place  of  trial,  and  requested  the  Hon- 
orable W.  O.  Crawford,  Judge  of  the  Tenth 
Judicial  District,  to  preside  at  the  trial  of 
said  action  in  Burleigh  county.    Thereafter, 
and  on  June  11th,  the  state,  through  the  At- 
torney General,  setting  forth  the  facts  and 
proceedings  above  stated,  procured  an  order 
from  a  Judge  of  this  court  commanding  the 
respondent  to  show  cause  before  this  court 
on  June  15,  1909,  why  an  appropriate  writ 
should  not  issue  requiring  and  commanding 
him  to  transmit  to  this  court  all  pleadings, 
orders,  affidavits,  and  records  herein  and  the 
records  of  the  proceedings  had  in  said  crimi- 
nal action  entitled,  "The  State  of  North  Da- 
kota V.  Duncan   J.  McGllIis,"  to  the  end  that 
this  court  may  review  the  rulings  thus  made. 
On  the  return  day  a  verified  answer  to  the 
order  to  show  cause  was  filed  on  behalf  of 
the  respondent,  which  states  the  reasons  for 
his  action,  in  substance,  as  follows:    Admits 
the  filing  of  the  Information  against  Duncan 
J.  McGllIls,  his  plea  of  not  guilty,  the  motion 
for  the  change  of  the  place  of  trial  of  the 
action  of  the  state  of  North  Dakota  against 
said  Duncan  J.  McGlUls.    That  the  Attorney 
General  made  the  affidavit  mentioned  in  his 
application  for  the  order  to  show  cause  which 
was  used  in  support  of  the  motion  for  a 
change  of  the  place  of  trial ;  the  application 
of  the  state  to  have  respondent  call  In  an- 
other Judge  to  preside  at  the  trial  of  said 
action.    That  he  called  in  the  Honorable  W. 
0.  Crawford,  Judge  of  the  Tenth  Judicial 
district     That  Duncan  J.  McGlllls,  defend- 
ant in  said  criminal   action,   filed  his  own 
affidavit,   the  affidavits  of  E.   G.  Patterson, 
G.  F.  DuUam,  one  of  the  attorneys  for  the 
defendant,  and  of  some  30  or  more  persons 
resident  within  Burleigh  county  and  the  city 
of  Bismarck.    On  l>ehalf  of  said  defendant, 
the  affidavits  admitted  that  Duncan  J.  Mc- 
GllIis, the  defendant,  is  sheriff  of  Burleigh 
county,  and  that  E.  O.  Patterson  is  chair- 
man of  the  board  of  county  commissionera 
That  defendant,  by  himself  and  his  deputies, 
subpoenaed  the  present  Jury,  and  by  himself 
and  his  deputies  has  charge  of  such  Jury, 
and  denied,  in  substance,  all  the  other  alle- 
gations in  the  affidavit  of  the  Attorney  Gen- 
eral, and  stated  that  in  the  opinion  of  each  ' 
the  state  could  have  a  fair  and  impartial  j 
trial  of  the  action  of  the  state  against  Dun-  | 
can  J.  McGlllls  in  Burleigh  county.    That  in  ! 
view  of  all  the  affidavits  mentioned,  and  in  ' 
consideration    thereof,    the   said    respondent ; 
then  and  there  became  and  was  convinced 
that  no  cause  existed  sufficient  \o  move  the  | 
discretion  of  said  court  or  to  Justify  the  re- 
moval of  the  action  against  said  Duncan  J.  | 
McGlllls  from  said  Burleigh  county  to  some 
other  county  for  trial,  either  within  or  with- 
out the  Sixth  Judicial  district,  and  he  there- 
fore denied  the  motion  of  the  Attorney  Gen- ' 
eral  to  change  the  place  of  trial  in  said  ac- ' 
tion.    It  is,  and  has  been,  the  universal  prac- 


tice of  this  court  on  the  return  of  an  order 
to  show  cause  to  pass  upon  the  merits  on  all 
applications  for  original  writs  where  the  par- 
ties stipulate  that  this  may  be  done,  and  also 
stipulate  that  the  facts  are  as  set  forth  in 
the  moving  papers  and  the  respondent's  re- 
turn. Such  stipulations  were  made  in  this 
case. 

There  are  two  questions  Involved  tn  this 
case:  One,  whether  section  9931  of  the 
Revised  Codes  of  1903  is  mandatory.  Said 
section  reads  as  follows:  "The  state's  at- 
torney, on  behalf  of  the  state,  may  also  apply 
in  a  similar  manner  for  a  removal  of  the 
action,  and  the  court,  being  satisfied  that  it 
will  promote  the  ends  of  Justice,  may  order 
such  removal  upon  the  same  terms  and  to 
the  same  extent  as  are  provided  in  this 
article,  and  the  proceedings  on  such  removal 
sliall  be  in  all  respects  as  above  provided." 
The  other,  whether  the  facts  presented  show 
that  the  respondent  abused  his  discretion  in 
refusing  to  grant  the  motion  for  a  change  of 
the  place  of  trial.  We  are  convinced  that 
section  0931,  supra,  is  not  mandatory,  and 
that  the  state  is  not  as  a  matter  of  right  en- 
titled to  a  change  of  the  place  of  trial  in  a 
criminal  action.  In  State  t.  Kent,  4  N.  D. 
577,  62  N.  W.  631,  27  Ia  R.  A.  680,  this 
court,  ^peaking  through  Judge  Corliss,  says: 
"The  question  whether  a  fair  and  impartial 
trial  cannot  be  bad  In  the  county  in  which 
the  action  Is  triable  must  be  settled  by  the 
Judge.  It  must  be  made  to  appear  to  his 
satisfaction  by  affidavit  that  a  fair  and  im- 
partial trial  cannot  be  had  in  that  county. 
Having  no  Interest  In  the  question,  the  law 
very  properly  leaves  it  to  him  for  a  decision." 
In  this  case,  as  In  any  other  case  before  an 
appellate  court,  we  cannot  go  outside  of  the 
record  and  assume  the  possible  existence  of 
other  facts  than  those  disclosed  by  the  record 
in  order  to  sustain  or  reverse  the  decision 
under  review.  The  granting  or  denying  of 
an  application  duly  made  for  a  change  of  the 
place  of  trial  of  an  action  on  the  ground 
that  an  impartial  trial  cannot  be  had  in  the 
county  where  the  action  Is  pending  is  a  mat- 
ter within  the  sound  discretion  of  the  court 
to  which  the  application  is  made,  and  its 
ruling  will  not  be  disturbed  except  for  an 
abuse  of  discretion.  Ross  v.  HanChett,  52 
Wis.  491,  0  N.  W.  624;  Giese  t.  Schultz,  60 
Wis.  449,  19  N.  W.  447;  State  v.  HaU,  16  S. 
D.  6,  91  N.  W.  325,  65  U  R.  A.  151;  Terri- 
tory V.  EJgan,  8  Dak.  119,  13  N.  W.  568; 
People  V.  Webb,  1  Hill  (N.  Y.)  179;  People  v. 
Baker,  8  Abb.  Prac.  (N.  Y.)  42;  Common- 
wealth V.  Balph,  111  Pa.  865,  8  Atl.  220; 
Commonwealth  v.  Delamater,  145  Pa.  210,  22 
Atl.  1098;  People  v.  Peterson,  93  Mich.  27, 
52  N.  W.  1039;  People  T.  Puhrmann,  103 
Mich.  59.3,  01  N.  W.  865;  People  v.  Vennllyea, 
7  Cow.  (N.  Y.)  137. 

In  People  v.  Baker,  supra,  the  court  says: 
"There  are  many  palpable  reasons  why  trials 
in  criminal  cases  should  ordinarily  be  had 


Digitized  by  VjOOQ  l€ 


N.  D.) 


STATE  T.  WIN0HE8T£B. 


1113 


In  the  counties  when  the  tranaactlons  which 
gave  rise  to  them  occurred,  and  a  change 
should  not  be  made  except  for  forcible  and 
clearly  established  causes."  In  People  r. 
Peterson,  snpra,  the  court  says:  "It  cannot 
be  said  bnt  that  the  question  rested  within 
the  sound  discretion  of  the  trial  court  to 
Judge  and  determine  the  sufficiency  of  this 
showing  for  a  change  of  venue."  The  At- 
torney General  made  a  rery  strong  showing 
In  behalf  of  the  state,  yet  we  cannot  say, 
after  a  careful  review  of  bis  affidavit  and 
the  return  of  the  respondent,  tliat  the  dis- 
trict court  abused  its  discretion  in  denying 
the  motion  of  the  state  to  change  the  place  of 
trial. 

The  fact  that  the  defendant,  as  sheriff,  by 
himself  and  his  deputies,  subpcenaed  the  jury, 
might  be  sufficient  cause  for  a  challenge  to 
the  panel,  but  is  not  cause  for  a  change  of 
y«iue.  It  follows,  therefore,  that  the  applica- 
tion for  the  writ  must  be  denied,  and  the 
temporary  restraining  order  dissolved,  and  it 
Is  so  ordered. 

MORGAN,  C.  J.,  and  FISK,  J.,  concur. 
SPALDING  and  ELLSWORTH,  J  J.,  dissent 

SPALDING,  J.  (dissenting).  On  a  some- 
what superficial  examination  of  the  record 
and  the  questions  involved  in  this  applica- 
tion, I  was  disposed  to  concur  in  the  major- 
ity opinion,  but,  after  giving  it  more  careful 
attention,  I  am  unable  to  do  so.  The  record 
before  us  contains  in  full  the  motion  papers. 
Including  the  affidavit  supporting  the  appli- 
cation of  the  Attorney  General  for  a  change 
of  the  place  of  trial  used  in  the  district  court, 
and  it  Is  conceded  in  the  majority  opinion 
that  that  official  made  a  strong  case.  It  is 
at  least  customary  to  include  in  or  «nnex  to 
the  return  a  copy  of  the  record  made  in  the 
lower  court  This  was  not  done  in  this  in- 
stance. It  is  unnecessary  to  consider  wheth- 
er the  omission  in  itself  is  fatal  to  the  re- 
spondent's case,  because  it  was  stipulated  on 
the  hearing  In  this  court  that  we  might  con- 
sider and  decide  the  application  for  the  writ 
upon  the  papers  before  us.  The  original  rec- 
ord, including  the  affidavits  submitted  to  the 
district  court  by  the  respondent,  cannot  be 
considered  because,  as  Indicated,  they  are 
not  contained  in  the  record.  The  Attorney 
General  having  made  out  a  case,  we  are  lim- 
ited In  determining  whether  the  Judge  of  the 
district  court  legally  exercised  his  discretion 
In  denying  the  application  to  a  consideration 
of  the  competent  and  material  statements 
In  the  return.  The  Attorney  General  charg- 
ed that  he  had  good  reason  to  believe,  and 
did  believe,  that  the  state  could  not  have  a 
fair  and  impartial  trial  of  said  action  in  Bur- 
leigh county.  Among  the  reasons  given  for 
this  statement  were  that  the  people  of  the 
county  were  so  prejudiced  against  the  prose- 
cution and  conviction  of  persons  for  offenses 
against  the  various  statutes  prohibiting  ille- 
gal traffic  in  and  sale  of  intoxicating  liquors, 


and  the  unlawful  use  of  buildings  for  such 
purposes,  and  permitting  buildings  and  prem- 
ises to  be  used  therefor,  that  It  was  common 
knowledge  and  the  commonly  expressed  opin- 
ion of  the  people  of  the  county  that  the  state 
could  not,  In  Burleigh  county,  obtain  a  fair 
trial  for  the  crime  charged,  or  in  any  case 
where  the  crime  charged  was  the  violation 
of  the  prohibition  law ;  that  the  laws  of  the 
state  on  that  subject  and  the  maintenance  of 
premises  for  such  unlawful  use  and  of  know- 
ingly permitting  such  use  by  owners  of  build- 
ings had  ever  since  the  enactment  of  such 
laws  been  openly  and  notoriously  violated  by 
numerous  persons  in  the  city  of  Bismarck 
and  other  parts  of  the  county  with  the  knowl- 
edge and  tacit  approval  of  the  people  general- 
ly and  of  the  peace  officers,  and  that  the  at- 
tempt to  punish  offenders  against  such  laws 
had  generally  met  with  determined  resist- 
ance and  refusal  to  convict  or  Indict  witbout 
r^ard  to  the  evidence  furnished  by  the  pros- 
ecution; that  at  the  term  of  court  then  in 
session,  in  the  case  of  State  v.  Bartheau,  the 
defendant  was  acquitted  on  his  third  trial 
for  violation  of  the  prohibition  law,  notwith- 
standing the  fact  that  the  Attorney  General 
believed  that  the  evidence  introduced  was 
more  than  sufficient  to  warrant  a  conviction, 
and  that  such  acquittal  could  not  have  been 
by  any  reason  of  any  reasonable  doubt  of  the 
guilt  of  said  defendant  in  the  minds  of  the 
jurors,  but  was  solely  on  account  of  the  prej- 
udice against  the  enforcement  of  the  law, 
and  reference  was  made  in  support  of  that 
contention  to  the  reporter's  record  of  the  evi- 
dence Introduced  on  such  trial,  and  that  at 
the  first  trial  in  said  case  at  a  former  term  of 
the  district  court  for  Burleigh  county,  Hon. 
W.  J.  Kneeshaw  then  presiding,  reprimanded 
the  Jury  for  its  disagreement  and  that  in 
such  case  the  evidence  introduced  was  sub- 
stantially the  same  as  In  the  trial  at  which 
said  defendant  was  acquitted;  that  the  de- 
fendant McGlllls  was  the  duly  elected,  quail- 
fled,  and  acting  sheriff  of  said  county,  and 
that  he  himself,  and  through  his  deputies, 
subpoenaed  the  members  of  the  jury,  was  In 
charge  of  the  Jury,  the  courthouse,  Jury 
rooms,  Jail,  and  courthouse  premises,  where- 
by he  has  easy  and  ready  access  to  the  Jury 
and  witnesses  In  attendance  on  such  court; 
that  said  defendant  besides  being  sheriff, 
was  an  active  politician  of  the  county,  and 
that  at  the  time  of  his  arrest  one  James 
Meyers  was  his  tenant  in  the  building  de- 
scribed In  the  Information  and  that  Meyers 
was  also  under  arrest;  that  in  the  case  of 
State  V.  Higgins,  charged  with  keeping  and 
maintaining  a  common  nuisance  as  defin- 
ed by  the  prohibition  law,  the  defendant 
Higgins  was  arrested  at  the  same  time  that 
the  herein  named  parties  were  arrested,  and 
was  a  tenant  of  one  Patterson  in  the  building 
described  In  the  information  in  the  last  men- 
tioned case,  and  that  Patterson  had  for  many 
years  been  a  prominent  politician  In  the 
county,  and  was  then  chairman  of  the  coun- 


Digitized  by  VjOOQ  l€ 


1114 


122  NOBTHWESTERN  BEPOBTBB. 


(X.  D. 


ty  commissioners  thereof,  and  that  the  pres- 
tige of  said  Pa'tterson  and  of  the-  respondent, 
when  combined,  was  so  great  that  In  his  be- 
lief a  jury  could  not  be  had  In  the  county 
that  would  give  the  state  a  fair  trial  In  the 
case  of  State  y.  McGllUs;  that  both  said 
Patterson  and  said  McGUlls  up  to  that  date 
had  for  many  years  last  i>ast  been  at  all 
times  directly  or  Indirectly  Interested  in 
places  where  intoxicating  liquors  had  been 
sold  in  violation  of  law,  or  directly  engaged 
in  the  sale  of  intoxicating  liquors  in  violation 
of  law,  and  were  the  leading  Influence  in  Bur- 
leigh county  that  bad  made  possible  the  pre- 
vention of  the  enforcement  of  the  prohibition 
law,  and  that  in  his  bellot  the  interest  of 
said  Patterson  and  of  the  defendant  McOil- 
lis  in  prevoiting  conviction  would  be  a  com- 
mon interest  for  the  protection  of  their  re- 
spective properties  and  interests,  and  that 
their  united  efforts  would  be  exerted  to  pre- 
vent the  state  from  obtaining  a  fair  trial; 
that  the  prejudice  existing  in  the  county 
against  the  enforcement  of  the  prohibition 
law  was  general,  and  that  among  other  rea- 
sons for  his  l>ellef  was  his  knowledge  of  the 
sentiment  of  the  public  obtained  through  a 
residence  of  four  years,  part  of  such  time 
having  been  spent  as  a  prosecuting  official 
whose  duty  it  was  to  prosecute  violators  of 
such  law,  and  to  Inform  himself  as  to  gen- 
eral conditions  and  public  sentiment.  These 
allegations  are  met  in  the  return,  as  far  as 
they  are  met,  by  quotations  from  the  affida- 
vits of  the  defendant  McGlllls,  of  Patterson, 
and  of  Dullam,  one  of  defendant's  attorneys, 
and,  as  far  as  the  recitations  of  the  order  of 
the  trial  court  denying  the  change  of  venue 
Indicate  the  affidavits  of  the  three  persons 
named  constitute  the  only  evidence  submit- 
ted by  the  defendant  It  will  be  observed 
that,  although  there  is  no  allegation  that  Pat- 
terson bad  been  Informed  against  for  permit- 
ting his  building  to  be  used  for  illegal  pur- 
poses under  the  prohibition  law,  yet  it  is  pos- 
itively stated  that  a  tenant  of  his  in  such 
building  had  been  arrested  on  the  charge  of 
violating  that  law.  So  it  is  apparent  that 
Patterson  stands  in  nearly  the  same  relation 
to  the  prosecution  as  does  defendant  McGll- 
Us. The  return  states  that  McGillis  in  bis 
affidavit  alleges  that  the  charge  that  be  at 
all  times  has  been  or  is,  directly  or  Indirect- 
ly, interested  in  places  where  intoxicating 
liquors  have  been  sold  in  violation  of  law, 
or  directly  engaged  in  the  Illegal  sale  of  such 
liquors,  and  had  for  many  years  been  the 
leading  influence  in  the  county  that  had 
made  possible  the  prevention  of  the  enforce- 
ment of  the  law,  is  false  and  without  foun- 
dation, and  denies  that  he  has  any  particular 
prestige,  political  or  otherwise,  but  alleges 
that  be  was  defeated  for  public  office  two 
years  ago  in  the  city  of  Bismarck ;  that  the 
prestige  of  said  Patterson  was  not  as  stated 
in  said  affidavit  of  the  Attorney  General,  but 
that  the  said  Patterson  liad  twice  been  de- 
feated for  office  since  the  spring  of  1907; 


and  that  statements  that  Patterson  and  the 
affiant  were  using,  or  would  use  their  inflo- 
ence  to  prevent  the  enforcement  of  the  pro- 
hibition law,  are  also  untrue.  This  affidavit 
is  largely  denials  that  affiants  have  at  all 
times  been  guilty  of  the  acta  alleged.  The 
affidavit  of  Dullam  is  stated  in  the  return  of 
respondent  to  be  to  the  effect  that  during 
the  term  of  court  then  sitting  four  cases  lud 
been  submitted  to  Juries  in  which  defend- 
ants were  charged  with  unlawfully  selling 
intoxicating  liquors,  in  three  of  which  ver- 
dicts of  guilty  were  found,  and  only  one  de- 
fendant was  acquitted;  that  other  defend- 
ants have  pleaded  guilty  to  not  roistering 
their  United  States  government  licenses; 
that  he  had  heard  many  Jurors  examined  as 
to  their  qualifications  who  testified  almost 
without  exertion  that  they  were  in  favor 
of  enforcing  the  provisions  of  the  prohibition 
law;  that  he  did  not  believe  that  Patterson 
bad  the  prestige  ascribed  to  him  by  the  At- 
torney General;  and  that  be  believed  that 
the  state  could  and  would  have  a  fair  and 
impartial  trial.  He  fails  to  disclose  how 
many  of  the  three  persons  convicted  were 
convicted  in  their  absence.  The  remaining 
portion  of  his  affidavit  presents  a  quibble  on 
the  distinction  as  to  public  sentiment  be- 
tween the  crime  of  selling  intoxicants  and 
the  crime  of  permitting  a  building  to  be 
used  for  such  purpose  illegally.  The  affida- 
vit of  Patterson  is  in  all  material  respects 
a  duplicate  of  that  made  by  McGillis,  and  al- 
leged that  the  charge  that  he  at  all  times  for 
many  years  has  been  •  directly  or  indirectly 
engaged  in  the  sale  of  intoxicating  liquors, 
etc.,  is  untrue.  The  return  also  states  that 
the  affidavits  of  some  30  or  more  i>er8on8, 
residents  of  Burleigh  county,  were  used  on 
the  application,  but  it  makes  no  reference  to 
their  contents.  The  remainder  of  the  return 
is  devoted  mostly  to  showing  that  the  court 
exercised  its  legal  discretion  in  denying  the 
change,  and  in  setting  forth  its  construction 
of  the  law  regarding  a  change  of  the  place 
of  trial  in  criminal  actions.  In  my  opinion 
these  affidavits  do  not  meet  the  allegations 
supporting  the  application  fully,  and  that 
the  statements  contained  in  such  affida- 
vits coming  as  they  do  from  the  defendant 
and  another  in  a  similar  position  are  entitled 
to  very  little  weight  Many  of  the  state- 
ments are  mere  evasions  of  the  Attorney 
General's  allegations.  The  fact  that  McOU- 
11s  has  been  defeated  for  office  in  the  city  of 
Bismarck  is  Immaterial  when  used  to  show 
that  an  impartial  Jury  can  be  obtained.  The 
city  of  Bismarck  is  but  a  small  portion  of 
the  county  of  Burleigh,  and,  if  such  state- 
ment is  entitled  to  any  consideration.  It  can 
only  apply  to  jurors  drawn  from  the  city  of 
Bismarck.  Patterson  does  not  state  what  of- 
fices be  had  been  defeated  for,  nor  In  what 
part  of  the  county,  but  it  does  clearly  appear 
that  he  was  chairman  of  the  board  of  county 
commissioners  and  McGUIIa  sheriff  of  the 
county  at  the  time  they  were  claiming  to  be 


Digitized  by  LjOOQ  l€ 


N.D.) 


STATE  V.  WINCHESTER. 


Ills 


Ttrlthont  political  or  otber  prestige.  The 
Btatcmenta  of  DuUam's  affidavit  are  immate- 
rial, and  those  of  the  30  citizens  cannot  be 
«onBidered  because  we  do  not  know,  and 
liave  no  means  of  knowing,  what  they  con- 
tained. 

The  order  denying  the  application  of  the 
Attorney  General  recites  that  it  was  entered 
upon  the  affldavlts  of  Andrew  Miller  on  be- 
taalf  of  the  state,  and  those  of  McGlllis,  Pat- 
terson, and  Dallam  on  behalf  of  the  defend- 
ant, and  makes  no  reference  to  the  court  hav- 
ing considered  any  other  evidence  or  facts. 
mie  return  is  most  carefully  and  ingenious- 
ly drawn,  and  is  in  the  nature  of  a  special 
plea.  The  quotations  from  the  affidavits  sub- 
mitted by  the  defense  in  a  very  large  degree 
evade  the  issue.  As  I  have  previously  indi- 
cated, they  are  largely  devoted  to  allegations 
tliat  the  parties  named  have  not  at  all  times 
for  many  years  been  engaged  in  violations  of 
the  law,  or  that  their  influence  is  not  the 
leading  influence  in  the  town,  or  county,  or 
that  it  has  been  exaggerated  by  the  Attorney 
General.  If  the  Judge  of  the  district  court 
-was  at  liberty  to  consider  his  own  knowledge 
of  conditions,  the  order  does  not  state  that 
be  did  so,  or  disclose  what  his  knowledge 
was  other  than  as  derived  from  the  affidavits 
mentioned.  I  am  strongly  Impressed  that, 
-when  the  Attorney  General  in  his  application 
makes  out  a  case  for  the  change  of  the  place 
•of  trial  of  a  crloninal  action,  It  Is  mandatory 
upon  the  court  to  grant  it  The  English  au- 
-thorltles  cited  in  the  case  of  Barry  v.  Truax, 
13  N.  D.  131, 99  N.  W.  769, 65  L.  K.  A.  762, 112 
Am.  St  Rep.  662,  are  not  accessible,  bat  the 
opinion  In  that  case  was  written  after  a 
most  searching  and  careful  examination  of 
all  authorities  bearing  on  the  subject,  and, 
if  I  read  it  aright,  the  court  there  found  that 
by  the  common  law  of  England  on  the  appli- 
cation of  the  Crown  or  the  Attorney  General 
a  change  of  the  place  of  trial  was  granted  as 
.of  course^  It  also  found  that  the  common 
law  was  in  force  in  such  proceedings  in  this 
state  except  In  so  far  as  the  procedure  was 
regulated  by  statute.  The  statute  does  pro- 
vide for  an  application  by  the  States  Attor- 
ney, but  It  does  not  pretend  to  regulate  the 
.procedure  on  the  application  of  the  Attorney 
General.  Section  10320,  Rev.  Codes  1905, 
reads:  "The  procedure,  practice,  and  plead- 
ings In  the  district  courts  In  this  state,  In 
criminal  actions  or  in  matters  of  a  criminal 
nature,  not  especially  provided  for  in  this 
code,  shall  be  in  accordance  with  the  proced- 
ure, practice  and  pleadings  under  the  com- 
mon law."  The  omission  of  the  Legislature 
to  make  provision  regarding  the  change  in 
the  place  of  trial  on  application  of  the  Attor- 
ney General  doubtless  occurred  for  the  same 
reason  that  so  few  authorities  are  found  re- 
lating to  a  dbange  on  his  application.  It  Is 
stated  In  the  Barry  Case  at  i>age  146,  where 
It  is  said :  "It  is  true  that  most  of  the  re- 
ported cases  on  this  subject  are  where  the 
.application  was  by  the  defendant    The  rea- 


son for  tbls  is  found  In  the  fact  that  the 
Crown's  right  was  an  admitted  one,  where- 
as that  of  the  defendant  rested  upon  an  exer- 
cise of  the  court's  discretion,  and  the  latter 
was  therefore  most  frequently  the  subject  of 
Judicial  inquiry.  The  Crown's  right  was  sel- 
dom, if  ever,  challenged,  and  no  case  has  been 
cited  or  found  by  us  where  it  was  denied." 
In  this  country  the  statutes  of  many  of  the 
states  fully  regulate  the  procedure.  Likewise 
many  of  the  statutes  limit  the  right  to  a 
change  of  the  place  of  trial  from  the  county 
where  the  offense  is  charged  to  have  been 
commuted  to  the  defendant,  unless  on  the  ap- 
plication of  the  state  he  waives  his  right  to  a 
trial  In  the  county.  For  this  reason  a  large 
proportion  of  the  authorities  cited  in  the  ma- 
jority opinion  are  not  relevant.  The  Kent 
Case  is  an  authority  only  when  the  defendant 
makes  the  application.  There  is  a  distinc- 
tion where  no  speciflc  regulation  is  imposed 
by  the  statute  between  applications  on  the 
part  of  the  defendant  and  those  made  on  be- 
half of  the  state.  If  the  granting  of  the 
change  on  the  application  of  the  state  rests 
solely  within  the  discretion  of  the  trial  court, 
in  many  counties  where  criminal  statutes  are 
in  disfavor  and  are  ignored  by  the  people  and 
the  officials  the  discretion  of  the  trial  Judge 
in  passing  upon  such  applications  is  in  prac- 
tical effect  nonrevlewable,  as  follows  from 
the  majority  opinion,  and  the  state  might  as 
well  abandon  all  attempts  to  protect  the  lives, 
the  liberty,  or  the  property  of  its  subjects  in 
such  counties  and  submit  at  once,  and  as 
gracefully  as  iK>8sible,  to  the  domination  of 
the  criminal  and  lawless  elements  in  some  lo- 
calities. I  cannot  agree  that  the  rights  of  a 
single  individual  are  any  more  sacred  than 
are  those  of  the  people.  The  object  of  all 
statutes  providing  for  a  change  of  the  place 
of  trial  Is  to  secure  justice  and  to  guard 
against  Injustice,  and  It  was  never  contem- 
plated that  the  laws  should  be  perverted  to 
deny  Justice  or  protection  to  the  sovereign 
I>eople  of  the  state  by  reason  of  local  preju- 
dice preventing  the  election  of  unbiased  and 
fair  officials  whose  duty  it  is  to  administer 
and  execute  the  criminal  laws.  No  court 
ought  to  place  any  such  construction  on  our 
system  of  criminal  procedure,  unless  the  leg- 
islative branch  of  the  government  has  made 
It  clear  by  express  language  that  it  should  do 
80,  and  even  then  Its  power  might  be  ques- 
tioned. 

A  statement  In  a  paragraph  of  the  return 
not  heretofore  referred  to  and  not  mentioned 
In  the  majority  opinion  requires  notice.  I 
quote:  "That  respondents  are  fully  convinc- 
ed and  believe  from  their  observation  and 
knowledge  of  the  situation  existing  in  Bur- 
leigh county,  N.  D.,  wherein  said  action  of 
the  State  of  North  Dakota  v.  Duncan  McGll- 
lis is  now  pending,  that  both  parties  thereto 
may  and  will  have  a  fair  and  impartial  trial 
before  the  average  Jury  that  would  be  procur- 
ed in  such  county."  It  is  apparent  that  this 
statement   is   intended   to   bolster   np.  and 


Digitized  by 


Google 


1U6 


122  NOBTHWESTBBN  BEPOBTER. 


(X.n. 


streugthen  tSie  conclnsloD  of  tbe  district  Judge 
and  U)e  ordex  denying  tbe  application  for  a 
change  of  the  place  of  trial.  It  indicates  that 
In  reaching  his  decision  he  did  not  confine 
himself  to  a  consideratloa  of  the  eyidence 
submitted  by  the  parties,  but  that  he  also 
proceeded  tomn  the  theory  that  he  might  le- 
gally consider  his  own  knowledge  of  the  situa- 
tion existing  in  Burleigh  county.  I  do  not  at- 
tempt to  discuss  the  correctness  of  this  posi- 
tion, because  it  is  unnecessary  to  do  so,  but  I 
am  satisfied  that  if  he  has  a  legal  right  to 
take  into  consideration  the  results  of  his  own 
observations  and  his  own  knowledge,  and  ren- 
der a  decision  either  wholly  or  in  part  based 
upon  his  observations  and  knowledge  of  con- 
ditions without  disclosing,  either  In  the  order 
denying  the  application  or  In  his  return,  the 
extent  and  character  of  such  knowledge  and 
observations,  his  order  Is  as  much  nonrevlew- 
able  as  though  the  statute  or  Constitution 
bad  made  it  so  In  express  language.  Tbis 
court  can  never  in  such  case  determine  to 
what  extent  the  decision  of  the  trial  court 
was  predicated  upon  its  undisclosed  knowl- 
edge derived  from  sources  Independent  of  tbe 
evidence  submitted  by  the  parties.  In  most 
cases  the  trial  court  is  bound  to  Judge  of  the 
application  as  well  as  of  the  adequacy  of  the 
defense  by  a  consideration  of  the  evidence 
presented.  See  Ruff  et  al.  v.  Phillips  et  aL, 
fiO  Ga.  130;  Scrogglns  v.  State,  66  Ga.  380. 
And  to  admit  that  that  court  may  take  mat- 
ters outside  of  the  record,  information  obtain- 
ed from  whatsoever  source,  Into  consideration 
in  arriving  at  its  decision,  or  to  hold  In  this 
case  that  there  was  not  an  abuse  of  discre- 
tion, when  the  fact  that  the  court  did  take 
such  matters  Into  account,  as  disclosed  by 
his  return,  is  not  to  hold  that  a  change  of 
the  place  of  trial  rests  upon  the  sound  legal 
discretion  of  the  lower  court,  but  is,  In  ef- 
fect, to  bold  that  in  every  instance  where 
that  court  says  it  took  into  consideration  evi- 
dence outside  of  the  record,  and  fails  to  dis- 
close tbe  substance  thereof,  its  decision  is  fin- 
al, and  that  this  court  in  such  Instances  ceas- 
es to  be  a  court  of  last  resort,  but  that  the 
district  court  by  its  own  act  constitutes  it- 
self the  final  arbiter  of  the  rights  of  the  pub- 
lla  This  court  can  in  the  presence  of  such  a 
statement  in  a  return  never  say  that  the  trial 
court  abused  its  discretion.  Had  the  order 
denying  the  application  or  even  the  return  in- 
cluded a  statement  of  the  facts  claimed  to  be 
within  the  knowledge  or  observation  of  the 
trial  court  relevant  to  the  matters  at  Issue,  a 
different  question  would  be  presented.  It 
would  then  be  possible  for  this  court  to  pass 
upon  the  exercise  of  the  discretion  of  the 
trial  court,  but  if  that  court  can,  as  in  effect 
follows  from  the  majority  opinion,  determine 
such  an  application  upon  tbe  knowledge  pos- 
sessed by  the  Judge,  and  not  Imparted  to  him 
officially  or  In  the  shape  of  evidence  the  na- 
ture of  which  is  not  disclosed  in  the  record 
made,  it  may  be  seriously  questioned  wheth> 
er  in  Its  supposed  power  to  review  the  dis- 


cretion of  that  court  this  court  may  not,  and 
should  not,  call  into  exercise  the  result  of  its 
own  observations,  and  take  Judicial  notice  of 
facts  transpiring  in  Burleigh  county  relating 
to  tbe  trial  of  those  charged  with  violating 
criminal  laws;  the  rarity  of  convictions  even 
on  conclusive  evidence,  and  of  facts  and  mat- 
ters occurring  at  and  relating  to  such  trials 
in  that  court  which  are,  and  have  been  for 
many  years,  notoriously  public,  and  of  the 
present  and  past  attitude  of  the  public  to- 
ward  tbe  subject 

In  conclusion  I  am  satisfied  that.  If  the 
writ  carrying  the  change  should  only  be 
granted  on  an  abuse  of  discretion  being 
shown,  tbe  return  Is  inadequate,  and  fails  to 
meet  the  showing  made  by  the  Attorney  Gen- 
eral on  behalf  of  the  state,  and  that.  In  any 
event,  on  the  application  of  tbe  Attorney 
General  and  a  case  being  made,  the  change 
should  be  granted  as  of  course. 

EIXSWOBTH,  J.  (dissenting).  The  appli- 
cation presented  by  this  case  is  that  this 
court  Issue  "a  supervisory  writ  requiring  the 
district  court  of  Burleigh  county  and  Honors 
able  W.  H.  Winchester,  as  the  Judge  there- 
of, to  certify  to  this  court  the  records,  files, 
and  proceedings  in  a  certain  criminal  action 
entitled  the  State  of  North  Dakota  v.  Duncan 
J.  McGlllIs,  to  the  end  that  said  records,  files, 
and  proceedings  may  be  reviewed  by  the  Su- 
preme Oourt,  and  Justice  may  be  done  in  the 
premises."  In  response  to  an  order  to  show 
cause  issued  from  this  court,  the  respondents 
filed  a  return  in  which,  after  a  lengthy  show- 
ing directed  entirely  to  the  end  that  tbe  At- 
torney General  is  not  entitled  to  the  writ 
applied  for,  they  "protest  that  they  shall 
not  be  required  to  transmit  to  this  court, 
or  be  commanded  to  do  so,  all  the  pleadings, 
orders,  affidavits,  and  records  in  said  action 
of  the  State  of  North  Dakota  v.  Duncan  J. 
McGlllls  and  all  the  records  of  proceedings 
had  in  the  said  criminal  action,  or  any  of 
them,  and  ask  that  said  application  therefor 
be  disallowed  and  dismissed." 

In  my  view,  the  only  point  presented  to 
this  court  for  decision  is  that  of  whether  or 
not  upon  tbe  application  and  showing  made 
by  tbe  Attorney  General  the  writ  of  certiorari 
should  issue.  The  Attorney  General  does 
not  make  specific  application  for  tbis  writ; 
but  it  is  apparent  from  bis  moving  papers 
that  the  writ  of  certiorari  is  the  only  super- 
visory writ  under  which  he  can  receive  any 
relief  whatever.  This  being  tbe  case,  I  think 
tbe  application  should  be  read  as  though  it 
were  expressly  made  for  a  writ  of  certiorari 
from  tbis  court  to  the  district  court  of  the 
Sixth  Judicial  district  I  believe  that  Juris- 
diction of  this  court  to  determine  any  of  the 
points  passed  upon  In  the  majority  opinion  is 
dependent  entirely  upon  the  writ  and  cannot 
be  acquired  by  any  other  means.  The  moving 
papers,  both  of  the  Attorney  General  and  of 
the  respondents,  are, directed  entirely  to  the 


Digitized  by  VjOOQ  l€ 


Minn.) 


KBWBURT  V.  QRBAT  NORTBBBN  ET.  <X). 


U17 


point  of  whether  or  not  the  writ  shall  iesue. 
The  Attorney  General  applies  for  the  Issu- 
ance of  a  snperrlsory  writ,  and  the  respond- 
ents protest  against  It,  and  direct  their  en- 
tire showing  to  the  point  that  they  should 
not  be  required  to  do  the  things  that  will  be 
required  of  them  In  case  the  writ  issue. 

The  majority  opinion  seems  to  proceed  on 
the  theory  that  an  oral  stipulation  of  counsel 
made  on  the  hearing  to  the  effect  that  the 
proceeding  may  be  disposed  of  on  its  merits 
on  the  showing  made  dispenses  with  the  ne- 
cessity for  the  writ  This  stipulation  can 
have  the  effect  of  waiving  the  writ  provided 
only  that  It  appears  the  full  purpose  of  the 
writ  Is  accomplished  by  the  return.  It  Is 
apparent  at  a  glance  that  such  Is  not  the 
case.  Fragmentary  excerpts  from  the  record 
that  was  before  the  district  court,  together 
with  the  conclusions  of  persons  Interested  in 
the  outcome  of  this  proceeding  as  to  what 
the  record  contains  and  the  legal  construction 
to  be  placed  on  the  statutes  involved,  cannot 
he  said  to  bring  before  this  court  the  evi- 
dential facts  on  which  the  district  court  act- 
ed. Tet  the  return  contains  only  this  as  ap- 
pears from  the  opinion  of  Judge  SPALDING. 
I  regard  it  as  a  matter  of  the  highest  impor- 
tance that  this  court  in  deciding  any  of  the 
very  Important  questions  presented  upon  this 
proceeding  should  have  before  it  the  entire 
record  acted  upon  by  the  Judge  of  the  district 
court  Further  than  this,  I  believe  that  with- 
out such  record  this  court  is  without  Jurisdic- 
tion to  make  any  order  in  any  manner  afiFect- 
Ing  the  ruling  of  the  Judge  of  the  district 
court,  whether  he  has  regularly  pursued  the 
authority  of  such  court  or  not.  I  can  think 
of  no  reason  deserving  of  the  slightest  weight 
why  questions,  affecting  the  sovereignty  of 
the  state  should  be  disposed  of  upon  an  in- 
complete, mutilated,  or  Imperfect  record  when 
this  court  has  full  power  by  the  issnance  of 
a  prerogative  writ  to  bring  the  entire  record 
before  it 

So  far  as  the  question  may  be  properly 
considered,  as  to  whether  or  not  a  Judge  of 
the  district  court  is  vested  with  a  discretion 
authorizing  him  to  deny  a  change  of  venue 
In  a  criminal  case  when  application  is  made 
therefor  by  the  Attorney  General,  as  Is  shown 
to  hare  been  made  in  this  case,  I  fully  con- 
cur in  the  conclusions  reached  by  Judge 
SPALDING.  If  such  discretion  Is  conceded  to 
exist,  however,  upon  the  question  of  wheth- 
er or  not  the  district  court  abused  its  discre- 
tion In  denying  a  change  of  the  place  of  trial 
In  the  case  of  State  v.  McGlllls,  I  am  of  the 
opinion  that  this  court  is  precluded  from  tak- 
ing any  action  whatever  by  reason  of  the  fact 
that  It  has  not  before  it  the  showing  made 
to  the  district  court  The  application  of  the 
Attorney  General  upon  Its  face  discloses  a 
Btate  of  facts  which  unquestionably  author- 
izes this  court  to  Issue  a  writ  that  will  enable 


It  to  folly  review  these  Interesting  and  im- 
portant questions,  and  in  my  opinion  the  writ 
of  certiorari  should  issue. 


NBWBURT  T.  GREAT  NORTHERN  RY.  CO. 

(Supreme  Court  of  Minnesota.    Nov.  12,  1909.) 

Cabriebs  (8  318*)— Damages  (J  132*)— New 
Trial  ({  102*)— Injtjbt  to  Passenobb— Nbo- 
LioENCE  —  Evidence  —  Newlt  Discovebeu 
Evidence — Dilioence. 

Evidence  considered  in  this,  a  personal  In- 
jury action,  and  held,  that  the  evidence  Is  suf- 
&cient  to  sustain  the  verdict,  that  the  damages 
are  not  so  excessive  as  to  justify  the  conclusion 
that  they  were  given  under  the  Influence  of 
passion  or  prejudice,  and,  further,  that  the 
trial  court  did  not  err  in  denying  a  motion  for 
a  new  trial  on  the  ground  of  newly  discovered 
evidence. 

[Ed.  Note. — For  other  casps.  gee  Carriers, 
Dec.  Dig.  I  318;*  Damages,  Cent  Dig.  U  372- 
396:  Dec,  Dig.  g  1^2;*  New  Trial,  Cent  Dig. 
«i  2ia-ai4;    D«:.  Dig.  i  102.*J 

(Syllabus  by  the  Court) 

Appeal  from  District  Court,  Polk  County; 
Wm.  Watts,  Judge. 

Action  by  Sarah  A.  Newbury  against  the 
Great  Northern  Railway  Company.  Verdict 
for  plaintiff.  From  an  order  denying  a  new 
trial,  defendant  appeals.    Affirmed. 

J.  W.  Mason  and  J.  H.  Maybury,  for  ap- 
pellant   W.  E.  Rowe,  for  respondent 

START,  G.  J.  Appeal  by  the  defendant 
in  a  personal  Injury  action  from  the  order 
of  the  district  court  of  the  county  of  Polk 
denying  its  motion  for  a  new  trial  after  a 
verdict  for  the  plaintiff  in  the  sum  of  $2,000. 

The  errors  here  assigned  and  urged  are 
that  the  court  erred  in  refusing  to  grant  a 
new  trial  on  the  groimd  of  newly  discovered 
evidence,  for  the  excessive  damages  appear- 
ing to  have  been  given  under  the  influence 
of  passion  and  prejudice,  and  for  the  reason 
that  the  verdict  is  not  justified  by  the  evi- 
dence. The  record  discloses  sufficient  evi- 
dence, if  the  Jury  found  it  credible,  to  sus- 
tain a  verdict  In  some  amount  for  the  plain- 
tifC  The  Jury  were  the  Judges  of  the  cred- 
ibility of  the  witnesses.  Therefore  the  only 
questions  for  our  consideration  are  those  re- 
lating to  the  alleged  newly  discovered  evi- 
dence and  the  claim  that  the  damages  are 
excessive  as  the  result  of  passion  and  preju- 
dice on  the  part  of  the  Jury. 

The  plaintiff,  who  was  60  years  old  and 
weighed  225  pounds,  was,  on  February  26, 
1907,  a  passenger  on  one  of  defendant's  pas- 
senger trains  from  Bemldjl  to  Wilton,  in 
this  state.  When  the  train  reached  Wilton, 
and  the  plaintiff  was  ready  to  alight  the 
defendant  stopped  the  train,  so  that  the 
smoking  car,  which  was  immediately  in  front 
of  the  car  in  which  the  plaintiff  was  riding, 
was  a  foot  or  more  from  the  end  of  the 
station  platform.     She  was  directed  to  go 


•For  otber  cues  lee  lame  topic  and  section  NUMBER  In  Dec.  *  Am.  Digs.  1307  to  date,  ft  Reportar  Indexas 


Digitized  by  VjOOQ  l€ 


1118 


122  NOBTHWESTEBN  BEPORTER. 


(Ulnn, 


forward  onto  the  platform  of  the  smoking 
car  and  alight  therefrom,  the  bottom  step  of 
which  was  2^^  feet  above  the  frozen  ground. 
The  plaintiff  testified  to  the  effect  that  she 
then  went  upon  the  platform  of  the  car,  and, 
observing  that  it  had  not  been  drawn  up 
to  the  station  platform,  asked  the  conductor 
If  he  would  not  pull  the  car  to  the  platform; 
that  he  replied,  "No,"  said  he  was  In  a  hurry, 
took  hold  of  one  of  her  hands,  and  a  brake- 
man  of  the  other  one,  while  she  was  stand- 
ing on  the  steps  of  the  car,  and  gave  her  a 
quick  pull  or  '^ank,"  which  threw  her  to  the 
ground;  that  she  struck  oh  her  right  hip 
and  shoulder,  and  in  consequence  of  such 
fall  she  suffered  Intense  pain  and  sustained 
permanent  Injuries;  that  her  limbs  became 
swollen,  and  her  stomach,  back,  and  kidneys 
were  injured;  that  she  had  hemorrhages  of 
the  stomach  as  the  result  of  her  injuries; 
and,  further,  that  she  was  well  and  healthy 
before  she  was  injured  by  being  pulled  from 
the  car,  and  never  bad  any  hemorrhages  from 
her  stomach,  or  internal  hemorrhages  of  any 
kind  prior  to  that  time.  The  plaintiff  was 
corroborated  by  the  testimony  of  another  pas- 
senger as  to  the  manner  in  which  she  was 
pulled  from  the  car.  The  conductor  denied 
that  he  pulled  the  plaintiff  from  the  steps 
of  the  car,  and  testified  that  he  carefully  as- 
sisted her  to  alight.  She  was  also  corrobo- 
rated, as  to  her  physical  condition  before 
and  after  her  injuries,  by  the  testimony  of 
her  adopted  son.  There  was  other  evidence 
tending  to  show  that  the  plaintiff,  at  the 
time  of  the  trial,  was  in  a  serious  physical 
condition;  but  two  medical  witnesses  called 
by  the  defendant,  who  examined  the  plaintiff 
at  the  trial  and  not  before,  testified  to  the 
effect  that  in  their  opinion  such  condition 
did  not  resnlt  from  her  falling  from  the  car. 
The  physician  who  attended  the  plaintiff  aft- 
er her  injury  was  called  as  a  witness;  but  he 
expressed  no  positive  opinion  to  the  effect 
that  her  then  physical  condition  was  the  re- 
sult of  injuries  sustained  at  the  time  she  fell 
from  the  car.  Upon  a  consideration  of  the 
whole  evidence,  we  are  of  the  opinion  that 
the  damages  awarded  to  the  plaintiff  are 
liberal,  but  not  so  excessive  as  to  show  that 
they  were  given  under  the  influence  of  pas- 
sion or  prejudice. 

This  brings  us  to  the  question  whether  the 
trial  court  erred  in  denying  the  motion  for 
a  new  trial  on  the  ground  of  newly  discover- 
ed evidence.  On  the  trial,  defendant  produc- 
ed a  letter,  purporting  to  have  been  written 
and  signed  by  the  plaintiff  the  next  day  after 
she  fell  from  the  car,  which  the  defendant 
received  some  five  days  thereafter.  The  let- 
ter stated  the  manner  in  which  she  was  In- 
jured and  her  previous  condition  of  health, 
all  of  which  conflicted,  In  material  respects, 
with  her  testimony  on  the  trial.  The  letter, 
if  written  or  authorized  by  her,  would  have 
been  admissible  in  evidence;  but  the  plaintiff 
denied  that  she  ever  wrote  or  authorized  the 
letter.     This    constitutes   the   first   alleged 


newly  discovered  evidence.  The  aflidavlt  in 
support  of  the  motion  states,  in  effect,  that 
the  defendant  was  taken  by  surprise  by  the- 
plaintiff's  denial  of  the  letter  on  the  trials 
that  since  the  trial  it  has  learned  that  the- 
letter  was  written  by  her  adopted  son,  EUmer 
Ellsworth,  at  and  by  her  request  and  direc- 
tion; and,  further,  that  the  affiant  believes- 
the  defendant  will  be  able  to  prove  such  fact 
on  a  new  trial  of  the  action.  The  affidavit 
does  not  claim  that  any  diligence  was  used 
before  the  trial  to  ascertain  whether  the  let- 
ter was  genuine,  nor  how  the  alleged  facts- 
as  to  the  letter  were  since  learned,  or  by 
whom  It  Is  proposed  to  prove  them.  The  fair 
Inference  from  the  affidavit  is  that  the  de- 
fendant simply  believes  tliat  it  will  be  able- 
to  prove  such  facts,  and  that  it  does  not  yet 
know  by  whom  the  proof  can  be  made;  for, 
otherwise,  the  affidavit  would  have  named 
the  witness  and  given  the  substance  of  his- 
proposed  testimony,  as  the  rule  in  such  eas- 
es requires.  Again,  the  letter  was  not  newly 
discovered  evidence;  for  the  defendant  had 
It  in  its  possession  for  nearly  11  months  be- 
fore the  triaL  It  may  be  that  defendant  was 
surprised  by  the  plaintlfTs  denial  that  the- 
letter  was  hers;  but  surprise  was  not  one 
of  the  grounds  for  a  new  trial,  nor  would 
the  facts  stated  in  the  affidavit  Justify  a  new 
trial  on  such  ground,  for  it  is  not  claimed 
that  the  defendant  did  anything  before  the 
trial  to  find  evidence  to  establish  the  genolne- 
ness  of  the  letter. 

The  other  item  of  alleged  newly  discovered 
evidence  is  the  testimony  of  the  plaintiff, 
given  on  the  trial  of  another  action  for  per- 
sonal injuries  by  her  against  the  defendant,, 
which  was  tried  more  than  three  years  be- 
fore this,  her  second  suit  against  the  defend- 
ant. Her  testimony  on  the  trial  of  that  ac- 
tion was  to  the  effect  that  she  was  then  suf- 
fering from  hemorrhages.  The  evidence  was 
material  on  the  trial  of  this  action,  as  it  is 
a  direct  contradiction  of  her  testimony  on  the 
last  trial  to  the  effect  that  she  had  never 
had  any  prior  hemorrhages.  The  evidence, 
however,  was  not  newly  discovered;  for 
defendant  knew  that  the  plaintiff  was  a  wit- 
ness on  the  trial  of  her  former  action  and 
testified  as  to  her  then  physical  condition. 
Counsel  who  tried  the  former  case  for  the 
defendant  may  well  have  forgotten  the  de- 
tails of  her  testimony;  but  that  is  no  excuse 
for  a  failure  to  use  diligence  to  ascertain 
the  precise  details  of  her  testimony  on  the 
former  trial,  and  to  secure  the  necessary 
evidence  to  prove  what  she  did  testify  to. 
It  Is  claimed.  In  this  connection,  that  the 
defendant  was  thus  dUigent  The  record 
does  not  sustain  the  claim,  for  It  simply 
shows  that,  on  November  10,  1908,  the  de- 
fendant opened  a  correspondence  with  the 
stenographer  who  took  plaintiff's  testimony 
In  the  former  action  for  the  purpose  of  secur- 
ing a  transcript  thereof,  and  that  the  stoiog- 
rapher,  by  reason  of  press  of  other  official 
duties,  was  unable  to  furnish  it  In  time  for 


Digitized  by  VjOOQ  l€ 


Minn.) 


UILLI8  T.  ELLia 


U19 


the  triaL  This  Is  not  a  snffidoit  showing  of 
diligence,  for  the  defendant  might  have  sent 
an  attorney  to  see  the  stenographer,  and  have 
had  read  from  his  notes  the  desired  testi- 
mony, and  might  then  have  taken  the  stenog- 
rapher's deposition,  nnder  the  provisions  of 
Rev.  Laws  1906,  {  4666,  or  secured  his  at- 
tendance as  a  witness  on  the  trial. 

We  are  nnable  to  find  In  the  record  any 
reason  for  reversing  the  order  appealed  from. 

Order  affirmed. 


MILLIS  T.  ELLIS. 
(Sapreme  Conrt  of  Minnesota.    Nov.  5,  1909.) 

Fbatjds,  Statute  or  (J  139*)— Subbeindeb  or 
Lease— Es-toppEi,  or  Landlobd. 

Under  section  S487,  Her.  Laws  1905,  a 
real  estate  lease  for  more  than  one  year  can- 
not be  canceled  and  surrendered  by  parol  agree- 
ment. But  when  a  landlord  veruilly  agrees 
with  his  tenant  to  cancel  and  snrrender  such  a 
lease,  and  the  tenant  performs  the  contract  by 
vacating  tlie  premises  and  surrendering  posses- 
sion, the  landlord  is  estopped  from  assertmg  his 
right  to  enforce  the  covenants  of  the  lease,  if 
he  acquiesces  In  the  conduct  of  the  tenant  and 
resumes  possession  of   the  premises. 

[Ed.  Note.— For  other  cases,  see  Frauds,  Stat- 
ute of,  Gent  EMg.  {{  334-341 ;  Dea  Dig. }  139.*] 
(Syllabus  by  the  Court) 

Appeal  from  Mimldpal  Court  of  Minneapo- 
lis; C.  h.  Smith,  Judge. 

Action  by  Emery  B.  MUUs  against  B.  E. 
Ellis.  lodgment  for  defendant,  and  plain- 
tiff appeals.    AfQrmed. 

M.  C  O'Donnell,  for  appellant  Wright  & 
Matchan,  for  respondent 


LEWIS,  T.  Appellant  was  the  owner  of 
certain  premises  In  Minneapolis,  and  leased 
the  same  to  respondent  by  a  written  lease  for 
the  period  of  three  years  at  the  rate  of  $50 
per  month,  payable  monthly  In  advance.  Aft- 
er occnpylng  the  premises  several  months,  re- 
spondent vacated  the  premises,  and  this  ac- 
tion was  brought  to  recover  the  amount  of 
rent  due  at  the  time  of  the  commencement  of 
the  action.  The  court  found  that  It  was  mu- 
tually agreed  between  the  parties  that  upon 
respondent's  giving  80  days'  notice  of  his  In- 
tention to  leave  the  premises,  and  upon  pay- 
ment of  the  rent  due  at  that  time,  the  lease 
sbonld  be  terminated;  that  respondent  gave 
notice  on  May  1,  1908,  that  he  would  vacate 
the  premises  the  last  day  of  the  month,  and 
paid  the  rent  for  May,  which  appellant  ac- 
cepted; that  thereafter,  by  mutual  consent 
respondent  remained  In  possession  during  the 
month  of  June,  paying  the  rent  for  that 
month;  that  on  the  80th  of  June  respondent 
vacated  the  premises  and  surrendered  posses- 
sion, and  that  appellant  accepted  the  key  and 
altered  Into  possession;  that  the  lease  was 
Burrendered  and  terminated  by  both  parties 
— and  Judgment  was  ordered  for  respondent 


The  material  question  is  whether  the  evi- 
dence was  sufficient  to  sustain  the  finding 
that  the  lease  was  surrendered.  Respondent 
testified,  over  appellant's  objection,  that  In 
April,  1908,  the  parties  entered  Into  a  verbal 
contract  by  which  It  was  agreed  that  the 
premises  might  be  surrendered  upon  30  days' 
notice.  This  was  followed  by  evidence  that 
on  the  Ist  day  of  May  respondent  wrote  a 
letter  to  appellant  as  follows:  "Yesterday, 
as  per  your  verbal  agreement  mafde  here  In 
the  office,  in  which  you  said  that  by  giving 
you  a  month's  notice  that  you  would  cancel 
the  lease  for  1022  Fifteenth  Avenue  S.  E., 
I  hereby  give  notice  that  on  June  1st  you 
shall  have  possession  of  the  house  and  the 
premises,  as  I  am  going  to  move  before  that 
date."  On  May  30th  respondent  sent  a  check 
for  $50  to  pay  the  rent  for  the  month  of 
June,  on  which  he  wrote  the  word  "Exten- 
sion," which  check  was  received  and  cashed 
by  appellant  On  the  30th  of  June  following 
respondent  wrote  appellant  as  follows:  "I 
herewith  Inclose  you  the  key  for  the  house 
1022  15th  Ave.  S.  B.  After  notifying  you 
month  before  last  that  I  would  vacate  the 
house  the  1st  of  June,  I  found  It  would  be 
Impossible  to  move  without  Inconvenience, 
and  sent  a  check  for  another  month's  rent 
hoping  that  the  house  had  not  been  rented: 
and,  as  you  accepted  the  check,  I  took  It  for 
granted  that  It  was  all  right" 

Appellant  admits  that  he  received  the  let- 
ter Inclosing  the  key,  and  that  he  placed  the 
same  In  the  hands  of  a  real  estate  agent,  with 
authority  to  rent  the  premises.  He  did  not 
notify  respondent  that  he  refused  to  consent 
to  the  vacation  of  the  premises  and  to  the 
surrender  of  the  lease ;  nor  Is  there  any  evi- 
dence that  he  acquiesced  in  such  vacation 
and  surrender,  except  that  he  banded  the 
key  to  the  real  estate  agent  with  authority 
to  rent  the  premises,  and  failed  to  protest  un- 
til he  commenced  an  action  on  July  2lBt  to 
recover  the  July  rent.  The  lease  provided 
that  the  rent  be  paid  monthly  in  advance, 
and  if  not  paid  in  advance,  or  If  Its  terms 
should  be  violated  in  any  respect,  then  the 
landlord  was  authorized  to  re-enter  and  take 
possession  of  the  premises,  without  such  re- 
entry working  a  forfeiture  of  the  covenants 
to  be  kept  by  the  lessee  for  the  full  term  of 
the  lease.  The  case  turns  on  the  question 
whether,  by  retaining  the  key,  assuming  pos- 
session of  the  premises  and  by  falling  to  ob- 
ject to  respondent's  movements,  appellant  is 
estopped  from  enforcing  the  terms  of  the 
lease. 

Under  the  provisions  of  section  3487,  Rev. 
Laws  1905,  the  lease  could  not  be  surrendered 
by  parol  agreement  A  snrrender  by  opera- 
tion of  law  takes  place  where  the  owner  of 
a  particular  estate  has  been  a  party  to  some 
act  the  validity  of  which  he  Is  by  law  after- 
wards estopped  from  disputing.  Smith  v. 
Pendergast  26  Minn.  318,  3  N.  W.  9T8.    The 


•Tor  atker  eaus  h*  lam*  topic  and  (ecUon  NUMBER  in  Dec.  *  Am.  Dlgi.  1M7  to  date,  *  Reporter  Indexe* 


Digitized  by  VjOOQ  l€ 


1120 


122  NORTHWESTERN  REPORTER. 


(Minn. 


court  has  found,  and  tbe  evidence  Is  snfflclent 

to  support  the  finding,  that  appellant  had  ver- 
bally agreed  to  release  respondent  and  sur- 
render the  lease  upon  30  days'  notice.  Al- 
though this  parol  agreement  vras  not  suf- 
ficient to  accomplish  a  surrender  or  cancella- 
tion of  the  lease,  It  was  competent  evidence 
for  the  purpose  of  throwing  light  upon  the 
subsequent  conduct  of  tbe  parties.  On  the 
30th  day  of  June  appellant  was  notified  by 
letter  that  respondent  had  acted  in  accord- 
ance '  with  the  verbal  understanding,  and, 
claiming  to  have  the  right  to  vacate  the  prem- 
ises, bad  moved  out  and  returned  the  key, 
having  purchased  a  home  of  his  own.  In  the 
absence  of  any  oral  agreement,  appellant  had 
tbe  right  to  retain  the  key,  and  assume  pos- 
session of  and  rent  the  premises.  But  It 
must  have  been  apparent  to  appellant  that  re- 
spondent was  relying  upon  the  verbal  con- 
tract and  had  carried  Its  terms  into  effect. 
It  therefore  became  incumbent  upon  appel- 
lant to  at  once  repudiate  the  contract,  and 
to  notify  respondent  that  he  did  not  propose 
to  stand  by  it  Resuming  possession,  and 
permitting  respondent  to  purchase  a  house  of 
bis  own  and  move  out  without  protest,  were 
facts  sufficient  to  warrant  the  conclusion  that 
appellant  was  proceeding,  not  by  virtue  of  his 
rights  under  the  terms  of  the  lease,  but  in 
accordance  with  the  verbal  contract.  In  so 
doing  he  became  a  party  to  acts  which,  in 
Justice  to  the  other  parly,  be  ought  not  to 
repudiate. 
Affirmed. 


In  re  RENVILLB  CO, 

STATE  V.  McGUIRE. 

(Supreme  Court  of  Minnesota.     Nov.  5,  1909.) 

1.  Constitutional  Law  (5  290*)— Dub  Pbo- 
CESS  of  I/AW— Enlaroinq  Dbainaoe  DrrcH 
—Notice  to  Pbopebtt  Owners. 

Section  26,  c.  230,  p.  327,  Oen.  Laws  1905, 
the  drainage  act  of  that  year,  so  far  as  it  at- 
tempts to  confer  upon  the  board  of  county  com- 
missioners, without  notice  to  or  opportnnity  by 
Interested  property  owners  to  be  heard,  author- 
ity to  enlarge  a  prevloasly  constructed  ditch, 
by  widening  its  banks  or  deepening  its  channel, 
and  to  assess  the  cost  and  expense  to  adjacent 
property,  is  not  due  process  of  law,  and  is  un- 
constitutional and  void. 

[Eld.  Note.— For  other  cases,  see  Constitution- 
al Law,  Cent.  Dig.  |  872 ;   Dec.  Dig.  i  290.*] 

2.  Constitutional  Law  (S  290*)— Due  Pbo- 
CEss  OF  Law— Dbainaoe  Ditch— Eepaib— 
Notice  to  Pbopebtt  Ownebs. 

Ordinary  repairs  might  be  so  authorized. 

[Ed.  Note. — For  other  cases,  see  Constitution- 
al Law,  Cent.  Dig.  §  872;   Dec  Dig.  §  290.*] 

3.  Constitutional  Law  (S  290*)— Due  Pbo- 
cess  of  Law— Dbainage  Ditch— Deepening 
— Notice  to  Pbopebtt  Owners. 

The  improvement  Involved  in  this  case  held, 
on  the  record,  an  enlargement  of  the  ditch  by 
deepening  its  channel ;  and,  no  notice  or  op- 
portunity  to  be  beard  being  provided  for  or 


given  the  owners  of  adjacent  property,  the  pro- 
ceedings and  assessment  were  void. 

[EkI.  Note. — For  other  cases,  see  Constitution- 
al Law,  Cent  Dig.  |  872;   Dea  Dig.  {  290.*] 

(Syllabus  by  tbe  Court.) 

4.  Dbains  (8  B2*)  —  "Repaies"  —  "WiDEW  (» 

Deepen  "—Notice. 

The  phrase  "widen  or  deepen,"  as  used  in 
Lews  1905,  p.  S27,  c.  230,  {  26,  authorizing 
county  commissioners  to  keep  drainage  ditches 
in  proper  repair,  etc.,  by  removing  obstruc- 
tions therefrom,  is  not  included  in  tbe  term  "re- 
pairs," so  as  to  authorize  such  work  without 
notice  to  interested  property  owners. 

[Ed.  Note.— For  other  cases,  see  Drains,  Cent. 
Dig.  {  63;    Dec.  Dig.  {  B2.» 

For  other  definitions,  see  Words  and  Phrases, 
vol.  7,  pp.  6096-6102:  voL  8,  pp.  7456,  7457, 
7785;   vol.  2,  p.  1926.) 

Appeal  from  District  Court,  Renville 
County;  Gorham  Powers,  Judge. 

Objections  by  John  A.  McOulre  to  the  en- 
forcement of  an  assessment  for  benefits  from 
the  enlargement  of  a  drainage  ditch.  Judg- 
ment was  rendered  against  him,  and  from 
an  order  denying  a  new  trial,  he  appeals. 
Reversed. 

C.  A.  Fosnes,  for  appellant.  Frank  Mur- 
ray, Co.  Atty.,  and  Daly  8c  Barnard,  for  the 
State. 

BROWN,  J.  In  1898,  in  proceedings  had 
for  that  purpose,  tbe  board  of  county  com- 
missioners of  RenvlUe  county  duly  laid  out 
and  constructed  a  drainage  ditch,  known 
and  described  in  the  record  as  "County 
Ditch  No.  2."  Lands  now  owned  by  appel- 
lant, but  then  owned  by  one  Oronnerud,  be- 
ing benefited  by  the  ditch,  were,  with  oth- 
er lands  adjoining  thereto,  duly  assessed 
for  the  benefits  so  accruing.  Thereafler,  in 
July,  1906,  one  Brunner,  an  owner  of  land 
affected  by  the  ditch,  appeared  before  the 
board  of  county  commissioners  and  repre- 
sented that  the  ditch  had  become  obstructed 
by  the  accumulation  of  grass  and  rubbish, 
and  petitioned  tbe  board  to  take  action  for 
the  removal  of  the  same,  to  the  end  that 
the  ditch  might  serve  the  purpose  intended 
by  its  construction.  Whereupon  the  board, 
by  proi)er  resolution,  api>ointed  John  D. 
Morgan  as  engineer,  and  directed  him  to 
make  due  Investigatton,  and  report  the  con- 
dition of  the  ditch  and  the  cost  and  expense 
of  removing  the  obstructions  therefrom.  In 
his  report,  subsequently  made,  he  recom- 
mended the  removal  of  all  obstructions,  and 
also  the  deepening  of  the  ditch  one  foot  its 
entire  length,  estimating  the  cost  and  ex- 
pense thereof  at  $3,582.  The  report  of  the 
engineer  was  In  substance  adopted,  and  the 
board  ordered  the  Improvements  there  rec- 
ommended to  be  made.  Assessmenta  for 
benefits  were  duly  made,  and,  appellant  fall- 
ing to  pay  tbe  amount  assessed  against  the 
tracts  of  land  evened  by  him,  the  land  was 
duly  charged  with  the  amount  by  the  county 
auditor  upon  the  tax  duplicate  for  the  year 


•For  otber  eases  see  lame  topic  and  section  NUMBER  In  Doe.  tt  Am.  Diss.  1807  to  date,  ft  Baportar  Indexw 


Digitized  by 


Google 


Mino.) 


m  BE  RRKVILLE  00. 


1121 


1900,  as  provided  by  section  26,  c.  230,  p.  327, 
Laws  1905.  Whereupon  appellant  appeared 
and  Interposed,  In  opposition  to  the  right  of 
the  board  to  enforce  the  assessment,  the  In- 
Talldlty  of  the  statute  Just  referred  to,  un- 
der which  the  proceedings  were  had  In  re- 
pairing the  ditch  and  making  the  assess- 
menta  The  facts  stated  were  not  contro- 
Terted  on  .the  trial  below,  and  it  was  stipu- 
lated by  the  parties  that  the  only  question 
In  the  case  was  "as  to  the  validity  of  the 
assessment  for  repairs,  widening  and  deep- 
ening the  ditch,  and  as  to  the  constitution- 
ality of  section  26,  c.  230,  Laws  1905."  The 
trial  court  found  the  facts  substantially  as 
stated,  and,  further,  that  "the  assessments 
so  made  by  said  board  were  to  pay  the  cost 
and  reimburse  the  county  for  r^alrlng  said 
ditch  by  removing  obstructions  therefrom, 
and  deepening  the  same  one  foot  a  part  of 
Its  length."  As  conclusions  of  law  the  court 
held  the  statute  constitutional,  the  proceed- 
ings of  the  board  valid,  and  judgment  was 
ordered  against  appellant  for  the  amount  of 
the  assessments  against  the  land  owned  by 
him.  Whereupon  appellant  moved  for  a  new 
trial  and  appealed  from  an  order  denying 
It 

Itie  objection  to  the  validity  of  the  stat- 
ute Is  that  it  makes  no  provision  for  no- 
tice to  interested  parties,  or  otherwise  af- 
fords them  an  opportunity  to  be  heard  upon 
questions  affecting  the  propriety  and  neces- 
sity of  the  improvement  authorized  to  be 
made  under  the  statute,  and  is  therefore  un- 
constitutional and  void  as  depriving  those 
against  whom  assessments  are  made  of  their 
property  without  due  process  of  law.  The 
statute,  a  part  of  the  drainage  act  of  1905, 
provides  that  after  the  construction  of  any 
ditch  the  board  of  county  commissioners  of 
the  proper  county  shall  keep  the  same  In 
repair  and  free  from  obstructions,  and  au- 
thorizes the  widening  or  deepening  thereof, 
If  in  the  Judgment  of  the  board  necessary  to 
answer  the  purpose  of  its  construction.  It 
further  provides  that  the  cost  and  expense 
of  such  Improvements  shall  be  paid  from 
the  general  revenue  fund  of  the  county,  re- 
imbursing that  fund  by  special  assessments 
upon  benefited  property.  As  urged  by  Coun- 
sel for  appellant,  the  statute  contains  no  pro- 
vision for  notice  to  Interested  parties,  or 
for  an  appeal  from  the  action  of  the  board, 
or  any  other  method  or  opportunity  by 
which  the  landowners  may  be  heard  at  any 
stage  of  the  proceedings.  In  short,  the  pro- 
ceedings -under  this  section  are  wholly  ex 
parta 

We  are  of  opinion  that  the  statute,  In  so 
far  as  It  attempts  to  clothe  the  board  of 
commissioners  with  ex  parte  power  and  au- 
thority to  enlarge,  by  widening  or  deepen- 
ing, a  ditch  theretofore  constructed,  is  un- 
constitutional and  void  by  reason  of  its  fail- 
ure to  provide  some  kind  of  notice  to  those 
who  are  required  by  the  statute  to  defray 
the  expense  of  the  improvement,  or  afford 
122N.W.-71 


them  an  opportunity  at  some  stage  of  the 
proceedlngiB  to  be  heard  upon  all  questions 
necessary  to  be  determined  in  order  to  Justi- 
fy the  proposed  work.  It  is  clear  that  the 
original  proceeding  could  not  be  authorized 
by  the  Legislature  without  some  provision 
for  notice  or  opportunity  to  be  heard  upon 
these  questions  (28  Cyc.  979;  Hamilton  on 
Special  Assessments,  141);  and  it  is  equally 
clear  that  the  enlargement  of  a  ditch  al- 
ready constructed,  either  by  widening  or 
deei)enlng  It,  would,  for  all  practical  pur- 
poses, constitute  a  new  ditch,  depending, 
perhaps,  upon  the  extent  of  the  enlarge- 
ment. There  is  a  distinction  between  re- 
pairing a  ditch,  by  removing  obstructions 
therefrom,  and  widening  or  deepening  It. 
Harbaugh  v.  Martin,  30  Mich.  234;  Lanning 
V.  Palmer,  117  Mich.  529,  76  N.  W.  2;  Tay- 
lor V.  Crawford,  72  Ohio  St  660,  74  N.  B. 
1005,  60  L.  R.  A.  805,  and  cases  dted  in 
nole.  In  some  of  the  states  it  has  been  held 
that,  even  in  the  case  of  ordinary  repairs, 
notice  and  opportunity  to  the  landowner  to 
be  heard  at  some  point  In  the  proceedings  is 
essential  to  the  validity  of  a  statute  author- 
izing the  same  (Campbell  v.  Dwlggins,  83 
Ind.  473),  though  the  authorities  on  the  point 
are  not  in  harmony.  But  we  find  no  conflict 
upon  the  proposition  that  authority  to  en- 
large a  ditch,  either  by  widening  its  banks 
or  deepening  its  channel,  must  be  upon  no- 
tice of  some  kind.  Fries  v.  Brier,  111  Ind. 
66,  11  N.  E.  958;  Weaver  v.  Templln,  113 
Ind.  299,  14  N.  B.  600;  Deuyer  v.  Shonert, 
1  Ohio  Cir.  Ct  R.  73 ;  Owensburg  v.  Brook- 
ing (Ky.)  87  S.  W.  1086;  Romack  v.  Hobbes 
(Ind.)  32  N.  B.  307. 

If  the  statute  under  consideration  autiior' 
ized  ordinary  repairs  only,  such  as  removing 
obstructions  and  accumulations  of  foreign 
Substances  in  the  ditch,  we  would  follow  th« 
rule  of  the  Iowa  court,  and  some  of  tha 
other  states,  to  the  effect  that  provision  for 
notice  to  the  owners  of  adjoining  property 
is  not  essential  to  the  validity  of  the  stat- 
ute. Yeomans  v.  Riddle,  84  Iowa,  147,  60 
N.  W.  888.  We  practically  so  held  in  the 
case  of  McMillan  v.  County  Com'rs,  93  Minn. 
16,  100  N.  W.  384,  where  section  25,  c.  258, 
p.  427,  Laws  1901,  was  construed  and  up- 
held, though  the  precise  point  does  not  seem 
to  have  been  raised.  The  cost  and  expense 
of  ordinary  repairs,  the  removal  of  rubbish 
and  obstructions,  if  properly  made  from  year 
to  year,  would  be  inconsiderable,  and  no 
serious  burden  to  property  owners,  and  a 
requirement  of  notice  and  other  proceedings 
essential  to  an  original  undertaking  would 
be  impractical,  render  the  work  of  the  board 
unnecessarily  cumbersome,  and  serve  no  sub- 
stantial purpose.  And,  as  suggested,  if  this 
statute  were  so  limited,  notice  would  be  held 
unnecessary.  But  it  is  not  so  limited.  On 
the  contrary,  the  statute  not  only  authorizes 
repairs,  but  grants  to  the  board  the  further 
power  to  enlarge  the  ditch  by  widening  its 
banks  or  deepening  its  channeL     And,  re- 


Digitized  by  VjOOQ  IC: 


1122 


J22  NOKTHWESrKBN  BSPOBTEB. 


oriiL 


specting  this  additional  power.  It  contains 
no  limitation  respecting  the  extent  to  which 
the  board  may  go.  Under  Its  authority  an 
existing  ditch  may  be  widened  or  deepened 
one,  two,  or  more  feet,  depending  npon  the 
arbitrary  action  of  the  county  board,  guided 
in  the  main,  perhaps,  by  recommendations 
of  their  engineer.  Clearly  this  should  not 
be  authorized  without  notice  to  those  who 
must  In  the  end  defray  the  expense. 

The  suggestion  on  the  oral  argument  that 
property  owners  are  afforded  full  and  ade- 
quate opportunity  to  be  heard  by  present- 
ing their  defenses  and  objections  in  this  pro- 
ceeding is  not  well  taken.  This  proceeding 
is  for  the  purpose  of  obtaining  Judgment 
against  benefited  property  for  the  amount  of 
assessments  made  against  it,  and  is  con- 
trolled by  the  general  statutes  on  the  sub- 
ject of  tax  Judgment  proceedings.  All  de- 
fenses there  authorized  to  be  Interposed, 'so 
far  as  here  pertinent,  are  contingent  upon 
an  afBrmative  showing  by  the  property  own- 
er that  the  tax  or  assessment  was  unfairly 
or  unequally  assessed.  State  t.  Backus- 
Brooks,  102  Minn.  60,  112  N.  W.  863;  State 
V.  Cudahy  Packing  Co.,  103  Minn.  419,  115 
N.  W.  646,  1039.  And  it  Is  clear  that  the 
merits  of  the  proposed  improvement  could 
not  be  heard  or  determined  in  this  proceed- 
ing, and  it  furnishes,  therefore,  no  sub- 
stitute for  notice  of  opportunity  to  be  heard 
in  the  prior  proceeding.  We  therefore  con- 
clude that  section  26,  c.  230,  p.  327,  Laws 
1005,  in  so  far  as  It  authorizes  the  board 
of  county  commissioners  to  enlarge  a  pre- 
viously constructed  ditch  by  widening  its 
banks  or  de^)ening  its  channel,  is  uncon- 
stitutional and  void,  for  the  reason  that  it 
contains  no  provision  for  notice  to  interested 
parties  or  otherwise  affords  them  an  oppor- 
tunity to  be  heard. 

It  remains,  then,  to  consider  the  claim  of 
counsel  for  respondent  that  this  particular 
proceeding  Involved  ordinary  repairs  only. 
This  does  not  require  extended  discussion; 
for,  as  we  read  the  record,  a  deepening  of 
the  ditch  was  clearly  contemplated,  in  addi- 
tion to  the  removal  of  obstructions  there- 
from. The  engineer  recommended,  not  only 
clearing  the  ditch  of  all  obstructions,  but 
deepening  the  same  one  foot  for  its  entire 
length.  The  county  board  in  substance 
adopted  this  report  and  ordered  the  Im- 
provem^t  accordingly,  not,  however,  to  the 
extent  of  deepening  the  ditch  its  entire 
length,  limiting  the  deepening  process  to  a 
portion  of  the  ditch  only".  The  trial  court 
found  that  the  assessment  sought  to  be  en- 
forced was  to  reimburse  the  county  for  re- 
pairing the  ditch  "by  removing  obstructions 
therefrom,  and  deepening  the  same  one  foot 
a  part  of  its  length."  This,  within  the  au- 
thorities heretofore  cited,  went  beyond  re- 
pairs, within  the  meaning  of  the  law,  and 
resulted,  in  part,  at  least.  In  a  new  ditch, 
and  the  same  reason  for  requiring  notice  to 


the  interested  landowners  and  an  ommrtuni- 
ty  to  be  heard  applies. 
Order  revised,  and  new  trial  granted. 


O'CONNOR  V.  QUEEN  INS.  00.  OF 
AMERICA. 
(Supreme  Court  of  Wisconsin.    Nov«  13,  1909.> 
Dissenting  opinion. 
For  majority  ophilon,  see  122  N.  W.  103S. 

MARSHALL,  J.  (dissenting).  I  do  not 
understand  elth«:  the  facts  of  this  case  or 
the  law  to  be,  In  all  respects,  as  indicated 
hi  the  court's  opinion.  The  court's  language 
would  indicate  that,  while  there  was  no  ig- 
nition outside  the  furnace  or  its  connections, 
there  was  considerable  burning  to  the  extent 
of  expelling  volatile  matter  from  paper,  fur- 
niture and  mop  boards,  so  as  to  create  on 
their  surface  charcoal.  "They  were  burned, 
charred  and  blistered,"  is  the  language  used, 
"though  there  was  no  ignition  outside  of  the 
furnace."  That  language  suggests  that  ac- 
tual fire  reached  the  Injured  parts  of  the 
house  and  furnishings  so  as  to  cause  burn- 
ing. I  do  not  find  that  in  the  record.  Here 
is  all  the  record  discloses,  substantially  in 
the  language  of  the  plaintiff.  In  the  comer 
of  the  room  around  the  regrister  on  the  sec- 
ond floor,  it  was  all  burned,  and  the  mop- 
board  blistered,  and  the  wall  paper  was 
charred  and  burned  to  a  perfect  brown,  and 
around  the  chimney  was  cracked  in  four  or 
live  places  by  the  heat  I  did  not  see  where 
any  furniture  was  burned.  I  suppose  It  was 
damaged  by  heat;  by  the  heat  affecting  the 
coal  smoke  which  settled  on  the  furniture. 
The  heat  seemed  to  make  the  smoke  oily. 
Nothing  in  the  house  was  set  on  fire.  I  think 
fire  went  up  the  registers  by  the  way  the 
wall  paper  looked  and  the  mopboards.  There 
was  no  burning  other  than  the  charring. 
There  was  no  ignition  except  in  the  furnace. 
I  do  not  know  whether  there  was  mo^ly 
heat  or  was  flame  in  the  register.  At  the 
close  of  the  plaintUTs  evidence  a  question 
was  propounded  to  him,  as  if  he  had  testified 
the  chimney  was  cracked,  when  be  said  he 
supposed  that  only  the  paper  on  the  chimney 
was  cracked.  There  was  other  evidence,  ftil- 
ly  corroborating  that  of  plaintiff,  that  the 
fire  was  wholly  confined  to  the  furnace  and 
its  connections;  that,  at  most,  heat  radiated 
therefrom  with  sufficient  intensity  to  slight- 
ly char  and  blister  mopboards  and  paper 
around  one  register;  and  that  the  chimney 
became  so  overheated  as  to.  cause  the  paper 
on  the  outside  of  it  to  crack.  The  damage 
was  wholly  by  the  radiated  heat  and  there 
was  no  burning  to  the  extent  of  charring,' 
except  of  a  trifling  nature.  The  damage,  ex- 
cept as  to  such  trifling  character,  was  caus- 
ed by  oily  smoke  which  escaped  from  the 
furnace  and  its  connectlbns  and  discolored 
paper  and  furniture.  That' is  the  way  I  read 
the  record. 


Digitized  by  LjOOQIC 


WloOi 


O'CONNOB  T.  QUEEN  INS.  CO. 


1123 


Now  the  qnestlon  Is  this:  Is  Injury  to  the 
finish  of  a  building  by  the  radiation  of  heat 
from  the  house  heating  furnace  and  its  con- 
nections and  escape  therefrom  of  smoke, 
caused  by  a  negligent  fire  in  the  furnace,  the 
injury  being  to  the  extent  of  some  slight  char- 
ring and  blistering  of  woodwortc  and  paper 
near  one  or  more  of  such  connections,  and 
cracking  of  paper  and  discoloration  thereof 
and  of  fnmlture  by  the  smoke,  "direct  dam- 
age by  flre,'"  within  the  meaning  of  the 
poUcy? 

In  solving  the  question  suggested,  other 
than  to  show  exclusion  of  the  particular  case 
from  the  hazard  Insured  against,  It  seems 
useless  to  refer  to  any  case  where  there  was 
actual  flre,  ignition  and  burning  followed  by 
an  explosion,  or  explosion  followed  by  flre, 
or  flre  outside  its  ordinary  place,  such  as 
a  furnace  or  stove,  or  flre  causing  the  build- 
ing ignited,  or  a  part  of  it,  to  fall  and  in- 
jure another  building,  or  flre  caused  entirely 
outside  a  furnace  or  other  ordinary  and  prop- 
er place,  thereby  injuring  insured  property, 
or  injury  to  one  part  of  a  building  from  acci- 
dental flre  In  another  outside  of  an  ordinary 
place  therefor. 

None  of  such  situations,  in  my  Judgment, 
have  any  bearing  on  the  case  before  us,  and 
if  used  to  show  liability  In  the  particular 
Instance,  only  tend  to  confuse. 

True,  where  there  Is  a  flre  followed  by  an 
explosion  causing  loss,  the  damage  is  the 
direct,  though  not  the  nearest  cause  of  the 
loss.  If  it  is  the  direct  cause,  in  the  sense 
of  the  result  reaching  back  by  a  chain  of 
causation  to  the  flre  as  the  efficient  cause.  It 
is  the  proximate  cause  in  the  sense  the  words 
of  the  Insurance  contract  "direct  damage  by 
flre"  are  used.  That  is  illustrated  by  United 
L.  F.  &  M.  I.  Co.  y.  Foote  et  al.,  22  Ohio 
St  340,  10  Am.  Rep.  735,  and  similar  cases. 

Where  there  is  an  explosion  followed  by  a 
flre,  the  latter,  though  the  nearest,  is  not 
the  direct,  in  the  sense  of  being  the  proxi- 
mate, cause.  That  Is  Illustrated  by  Trans- 
atlantic Fire  Ins.  Co.  t.  Dorsey,  56  Md.  70,  40 
Am.  Rep.  403,  and  similar  cases.  In  such 
situations  as  the  former,  the  flre  and  dam- 
age are  mere  incidents  of  the  explosion;  in 
the  latter,  the  explosion  and  damage  are 
mere  incidents  of  the  flre.  But,  as  before  In- 
dicated, neither  situation,  nor  any  of  those 
suggested,  it  seems,  has  any  similarity  to  a 
case  of  damage  caused  by  an  excessive  and 
dangerous  radiation  of  beat  from  a  furnace 
and  Its  connections,  and  escape  of  smoke  and 
flre  caused  by  the  negligent  placing  of  an  un- 
usual flre  therein,  such  damage  consisting  of 
some  trifling  charring  of  a  part  of  a  struc- 
ture, adjacent  to  some  of  such  connections, 
and  discoloration  of  finishing  and  furniture 
by  smoke. 

Precedents  properly  used  are  helpful.  Im- 
properly used  they  are  not.  They  may,  and 
are  quite  likely  to  be,  the  very  opposite.  If 
each  case  was  decided  by  squaring  it,  as  near 
as  might  be,  with  some  particular  previously 


decided  case,  or  several  of  them,  unmindful 
of  the  underlying  controlUag  principles,  with 
the  humane  leanings  which  characterize  Judg- 
es, as  well  as  others,  In  favor  of  the  weak 
and  humble,  and  perhaps  properly  in  cases  of 
reasonable  doubt,  the  human  Inclination  so 
admirable,  would  be  liable  to  create  doubts 
In  the  mind  where  none  need  to  exist,  in 
fact,  resulting  in  a  decision  now  and  another 
then,  and  again  another,  and  so  on  ad  Infini- 
tum, each  on  some  more  or  less  extreme  view, 
and  the  unwritten  law  would  become  as  a 
kaleidoscope,  presenting,  as  handled,  an  end- 
less variety  of  situations  fitting,  apparently, 
with  most  delightful  similarity,  causes  as 
they  arise,  leading  to  results  entirely  out 
of  harmony  with  that  deflnlteness  of  rule 
whlch^  dignifies  the  law  as  a  science. 

So  It  seems  we  must  look  to  the  precedents, 
many  of  which  are  found  In  the  opinion,  not 
to  see  what  is  indicated  in  any  particular 
case  under  particular  facts,  but  to  discover 
the  logical  basis  of  all — the  underlying  prin-  ' 
ciple.  Having  discovered  that  and  tied  firm- 
ly to  It,  we  can  proceed  with  considerable 
certainty  to  a  correct  result.  Having  start- 
ed with  the  basic  member  of  our  syllogism, 
we  can  proceed  with  logical  steps  to  an  in- 
evitable conclusion,  with  the  certainty  of 
true  logic. 

What  l8  the  basic  theory  of  the  cases  dted 
In  the  court's  opinion?  Though  It  seems  not 
to  have  been  kept  clearly  In  view  In  every 
Instance,  is  it  not  that,  the  term  of  the  policy 
In  question,  "direct  loss  or  damage  by  flre," 
excludes  flre  so  long  as  It  is  confined  to  Its 
appropriate  place,  as  a  stove  or  furnace,  and 
contemplates  flre  as  a  producing  cause  existing 
outside  of  any  such  place.  It  Is,  seemingly, 
conceded  that  those  words  do  not  mean  a  flre, 
so  long  as  confined  In  Its  appropriate  place. 
So  the  proximate  resulting  loss  must  refer  to 
a  proximate  cause  fire,  and  If,  following  back 
from  the  former,  we  must  reach  the  fire  in 
the  stove  before  we  find  any  fire  at  all,  how 
can  we  well  say  that  the  loss  was  proximate- 
ly caused  by  fire?  What  is  the  logic  of  the 
numerous  explosion  cases  cited  in  the  court's 
opinion?  Is  it  not  this?  If  following  back, 
step  by  step,  from  the  injury  we  reach  the 
explosion  as  a  mere  link  in  a  clialn,  starting 
with  a  fire  which,  had  it  immediately  cansed 
the  loss  would  be  within  the  field  covered  by 
the  policy,  that  there  Is  responsibility  of  the 
Insurer;  If,  on  the  other  band,  in  tracing 
back  to  the  real  origin  of  the  loss,  we  pass 
the  fire  and  reach  the  explosion  as  a  produc- 
ing cause,  which  is  not  within  the  risk  cover- 
ed, then  the  fire  is  a  mere  incident  or  link  in 
the  chain  of  causation,  terminating  with  the 
explosion  as  the  proximate  cause  of  the  dis- 
turbance— of  the  injury  Itself  at  the  other 
end  of  the  chain.  In  substantially  every  one 
of  the  cases  cited,  and  a  multitude  that  might 
be  referred  to,  the  proximate  cause  was  flre 
of  R  responsible  character,  as  regards  the  in- 
surance risks ;  not  flre  in  a  stove  or  a  fur- 
nace, though,  ia  many,  there  was  a  chain  of 


Digitized  by  VjOOQ  IC 


1124 


122  NOSTHWESTEHN  UEPOBXEB. 


(Wlfl. 


disturbances  r^chlng  therefrom  to  the  dis- 
aster, as  In  the  case  of  the  flre  In  Ermentrout 
V.  Glrard  Fire  &  Marine  Ins.  Co.,  63  Minn. 
305,  65  N.  W.  635,  30  L.  R.  A.  346,  66  Am.  St 
Rep.  481.  In  this  case  there  was  a  fire  In 
a  building  of  a  character,  within  the  terms 
of  the  insurance  policy,  which  so  destroyed 
the  building  as  to  cause  a  wall  thereof  to  fall 
and  Injure  the  adjacent  Insured  building. 
Had  the  flre  been  wholly  In  a  furnace,  result- 
ing In  such  overheating  and  such  radiation 
of  heat  as  to  cause  the  wall  to  fall,  carrying 
down  In  part  the  adjacent  building,  I  appre- 
hend no  one  would  seriously  have  thought 
the  loss  was  covered  by  the  policy,  because  In 
tracing  the  result  back  to  find  the  proximate 
cause,  It  would  not  have  been  found  to  be 
within  the  policy.  With  few  exceptions,  that 
test  could  safely  be  applied  to  all  the  cases. 
It  follows  the  logic  of  Austin  t.  Drew,  4 
Camp.  301,  which,  in  my  Judgment,  has  never 
been  criticised  except  as  it  has  been  misun- 
derstood. It  did  not  go  on  the  mere  fact  that 
the  flre  was  a  usual  and  so  "a  friendly  flre," 
but  upon  the  ground  that  the  fire  was  tn  its 
proper  place  and  all  the  results  were  mere  in- 
cidents thereof,  1.  e.  the  proximate  cause  was 
the  flre  In  the  store  because  there  was  no  flre 
elsewhere. 

As  so  much  is  said  about  Austin  v.  Drew, 
It  may  be  well  to  show  Just  what  the  facta 
and  the  decision  were.  There  was  an  over- 
heated stove,  caused  by  negligent  mismanage 
ment  of  it,  as  in  this  case.  It  matters  not 
that  the  mismanagement  there  was  in  pro- 
ducing overheating  and  causing  smoke,  heat 
and  sparks  to  escape  Into  the  building,  but 
without  producing  any  flre  outside  of  the 
stove  or  its  conLectlons.  by  failure  to  proper- 
ly manipulate  the  register,  and  that  substan- 
tially the  same  results  were  produced  here 
by  mismanagement  of  the  flre  itself.  The 
court  now  puts  some  stress  on  the  fact  that 
Gibbs,  a  3.  said.  In  the  opening  part  of  the 
opinion,  that  the  flre  Itself  was  not  unusual. 
But  that  is  not  the  gist  of  the  decision.  It 
Is  that  nothing  outside  the  stove  was,  by  flre 
outside  thereof  or  otherwise,  consumed.  This 
language  was  used  :  "Nothing  was  consumed 
by  flre.  The  plaintlfTs  loss  arose  from  the 
negligent  management  of  the  machinery"  (re- 
ferring to  the  connections  of  the  stove). 
While  the  Judge  was  pronouncing  his  opin- 
ion be  was  thus  Interrupted  by  a  Juryman : 

"If  my  servant  by  negligence  sets  my  house 
a  flre,  and  It  Is  burnt  down,  I  expect  my 
Lord,  to  be  paid  by  the  Insurance  office,"  etc. 

To  which  the  Lord  Chief  Justice  replied : 

"And  so  you  would,  sir;  but  then  there 
would  be  a  flre,  whereas  here  there  has  been 
none.  If  there  is  a  flre,  it  is  no  answer  that 
It  was  occasioned  by  the  negligence  or  mis- 
conduct of  servants;  but  in  this  case  there 
was  no  flre  except  in  the  stove  and  the  flue, 
as  there  ought  to  have  been,  and  the  loss  was 
occasioned  by  the  confinement  of  heat  Had 
the  fire  been  brought  out  of  the  flue,  and  any- 


thing had  been  bamt,  the  company  would 
have  been  liable.    •    •    • " 

Thus  It  will  be  seen  that  the  real  gist  of 
the  decision  Is  In  the  language,  "Had  the 
flre  been  brought  out  of  the  flue  and  anything 
had  been  burnt  the  company  would  have 
been  liable."  The  logic  of  that  is  tills :  The* 
there  would  have  been  a  flre  within  the  calls 
of  the  policy,  whidi  would  be  referred  to  as 
the  proximate  cause  of  the  loss.  To  that  ex- 
tent the  doctrine  of  that  cas6  has  not  been 
criticised  In  any  well  considered  opinion,  or 
by  any  text-writer  understandlngly. 

It  should  be  noted  that  In  Austin  v.  Drew, 
actual  ignition  outside  the  stove  was  not 
made  a  condition  precedent  to  a  recovery,  but 
fire  outside  was  made  such  condition.  There 
might  be  fire  outside  and  burning,  in  the  most 
restricted  sense  of  the  term,  without  ignition, 
and  the  policy  would  be  satisfied;  but  la 
case  of  burning  without  any  fire  outside^ 
burning  to  the  extent  of  mere  charring  pro- 
duced by  radiated  heat  from  the  surface  of 
the  stove  and  its  connections,  then  the  policy 
would  not  be  satisfied.  Where  the  attempt 
has  been  made  to  extend  the  Drew  Case  so 
as  to  call  for  fire  outside  the  stove  and  ac- 
tual ignition,  it  has  been  generally,  and  prop- 
erly, unsuccessful.  If  it  has  ever  been  criti- 
cised or  limited  so  as  to  allow  a  recovery 
where  there  was  no  fire  outside  the  stove  or 
furnace,  and  no  burning,  otherwise  than  a 
little  charring  and  discoloration  by  radiated 
heat  from  a  stove  and  its  connections,  or  to 
allow  a  trifling  injury  of  that  kind  to  draw 
to  it  and  include  a  far  greater  damage,  caus- 
ed by  mere  beating,  without  burning  in  any 
sense,  and  damage  from  smoke,  caused  by 
flre  Inside  the  stove,  I  have  been  unable  to 
discover  it  and  the  court  has  not  been  any 
more  successful,  as  Indicated  by  the  cases  re- 
lied on. 

Joyce  on  Insurance,  at  section  2796,  dtlng 
numerous  authorities,  adopts  the  rule  of  Aus- 
tin T.  Drew,  as  I  have  explained  it  as  re- 
gards all  damages  caused  by  overheating  and 
smoke  produced  wholly  by  flre,  whether  neg- 
ligently handled  or  not  In  a  place  where  It 
may  properly  be. 

In  1  Wood  on  Insurance  (2d  Ed.)  (  103, 
Austin  T.  Drew  Is  referred  to,  as  to  all  such 
Injuries  as  we  have  In  this  case;  this  lan- 
guage being  used : — 

"In  order  to  bring  snch  consequences  with- 
in the  rlslc,  there  must  be  actual  ignition 
outside  of  tlie  agencies  employed,  not  pur- 
posely caused  by  the  assured,  and  these,  as 
a  consequence  of  such  Ignition  dehors  the 
agencies." 

It  should  be  noted  that  while  Mr.  Wood 
says  there  must  be  actual  Ignition  outside 
of  the  usual  agencies,  he  does  not  neces- 
sarily, and  I  think  does  not  In  fact  mean  Ig- 
nition of  the  insured  property.  He  means  no 
more  thah  that  there  must  be  actual  flre 
outside  of  such  agencies,  and  that  such  Ore 
must  proximately  cause  the  loss. 


Digitized  by 


Google 


wis.) 


O'OONNOE  ▼.  QUEEN  INS.  CO. 


1125 


2  May  on  Insnrance  (4tb  Ed.)  {  402,  infei^ 
entlally  criticises  the  text  In  Wood  upon  tbe 
theory  that  It  la  to  the  effect  that  actual  Ig- 
nition of  property  Insured  Is  a  condition 
precedent  to  a  recovery,  In  a  case  of  this 
sort,  and  argues,  from  authority,  that  dam- 
age by  Are  Is  within  the  terms  of  an  Insur- 
ance itoUcy  containing  language  similar  to 
the  one  before  us,  although  there  Is  no  Igni- 
tion of  any  property  covered  by  the  policy. 
Illustrating  by  cases  of  actual  fire  which 
would  be  within  the  risk  In  case  of  Its  im- 
mediately causing  the  damage,  and  proxi- 
mately did  cause  It  without  combustion  of 
any  part  of  It,  as  where  a  fire  originated 
outside  a  theatre,  heated  Its  walls  and  set- 
ting them  on  flre.  Sohler  v.  Norwich  Fire 
Ins.  Co.,  11  Allen  (Mass.)  336.  Damage  by 
flre  originating  In  the  theater  was  excepted 
from  the  policy.  As  we  may  well  say;  flre 
originating  and  kept  In  tbe  house  furnace 
was,  by  necessary  implication,  excepted  from 
tbe  policy  here.  It  was  because  there  was 
fire  outside  the  excepted  zone,  which  reach- 
ed the  theater  and  caused  the  damage,  that 
the  recovery  was  allowed.  Such  illustra- 
tions. Instead  of  condemning,  rather  support 
the  text  in  Wood  as  to  the  scope  of  Austin 
T.  Drew,  properly  understood. 

In  Scripture  v.  Lowell  Flre  Ins.  Co.,  10 
Gush.  (Mass.)  856,  67  Am.  Dec.  Ill,  many  of 
tbe  erroneous  notions  of  the  scope  of  Austin 
v.  Drew,  which  have  misled  text-writers  and 
courts,  are  referred  to.  It  is  shown  that 
some  have  supposed  the  decision  went  upon 
the  ground  of  carelessness  of  servants ;  oth- 
ers that  it  went  upon  the  ground  of  damage 
t&  things  in  process  of  manufacture  by  means 
of  the  flre  In  the  stove;  and  others  that  it 
went  on  the  ground  of  there  having  been  no 
Ignition  of  any  property  covered  by  insur- 
ance. Cushing,  Justice,  after  repudiating 
all  of  such  notions  as  illegitimate,  stated 
what  was  decided,  as  confined  to  the  facts, 
but  plainly  pointed  out  the  real  rule  of  the 
case  by  saying:  "If,  in  Austin  v.  Drew,  the 
flre  had  been  where  it  ought  not  to  be,  if , 
even  with  careless  management,  it  had  burn- 
ed the  building,  •  •  *  the  Insurers 
would  have  been  held  to  be  liable  for  tbe 
loss."  In  other  words,  if  the  flre  bad  escap- 
ed from  the  stove  and  anything  bad  thereby 
been  burned  the  loss  would  have  been  recov- 
erable. 

That  Is  in  harmony  with  the  following: 
Babcock  V.  Montgomery  Co.  Mut.  Ins.  Co.,  6 
Barb.  (N,  Y.)  637 ;  Gibbons  v.  German  Ins.  & 
Savings  Inst.,  80  111.  App.  263,  265;  Western 
Woolen  Mill  Co.  v.  Northern  Assurance  Co., 
139  Fed.  637,  72  C.  C.  A.  1;  Cannon  v. 
Phoenix  Ins.  Co.,  110  Oa.  663,  35  S.  B.  775, 
78  Am.  St  Rep.  124 ;  Samuels  v.  Continental 
Ins.  Co.,  2  Pa.  Dlst.  R.  397. 

Hie  text  in  Wood  on  Insurance,  in  the 
sense  intended,  has  been  many  times  sanc- 
tioned. Tbe  following  language  of  the  court 
in  American  Towing  Co.  v.  German  F.  Ins. 


Co.,  74  Md.  25,  21  Atl.  568  is  a  good  illustra- 
tion: 

"T-f  a  person  has  his  house  Insured  against 
all  loss  or  damage  by  fire,  and  he  should 
make  a  fire  in  his  grate  or  fireplace  of  such 
intense  heat  as  to  crack  his  chimney,  or  to 
warp  or  crack  his  mantelpieces,  it  could 
hardly  be  contended  that  he  should  hold  the 
Insurance  company  liable  for  such  damage, 
though  the  damage  was  unintentionally  al- 
lowed to  be  produced  by  the  action  of  flre. 
In  such  case  tbe  flre  would  not  have  been 
extended  beyond  the  proi)er  limits  within 
which  it  was  intended  to  bum ;  but  tbe  heat 
emitted  therefrom  would  have  produced  ef- 
fects not  Intended  by  the  insured. 

"No  doubt  there  are  many  instances  where 
the  insurer  has  been  held  liable  for  injury 
done  to  buildings  and  furniture  by  heat  or 
smoke,  without  actual  Ignition,  where  the 
heat  or  smoke  has  proceeded  from  flre  out- 
side Of  and  beyond  the  limits  of  the  place 
where  it  was  intended,  by  the  contract  of 
insurance,  to  bum.  But  that  i»  a  different 
question.    •    ♦    •" 

That  Mr.  Wood  did  not  intend  that  tbore 
must,  necessarily,  be  ignition  of  the  property 
insured  as  a  condition  precedent  to  a  recov- 
ery, but  only  that  there  must  be  a  flre  at 
least  outside  its  proper  place,  and  cause  the 
damage,  proximately,  either  by  charring  or 
smoking  or  unduly  heating  with  or  without 
Ignition,  of  the  property  Insured,  or  ignition 
of  some  other  property  and  proximately 
reaching  and  damaging  the  property  insured 
by  ignition  or  otherwise,  is  evidenced  by  the 
following  language  of  section  104: 

"There  must  be  an  accident  by  flre  to  lay 
the  foundation  of  a  daim.  By  this  it  is  not 
ineant  that  the  property  itself  must  have 
been  on  flre,  but  that  there  must  have  been 
either  an  lotion  of  tbe  property  itself,  or 
of  other  substances  or  property  nearby  to  it, 
which  was  the  proximate  cause  of  the  loss. 
Flre  [that  is,  as  applied  to  the  facts  of  thin 
case,  fire  outside  of  the  furnace]  must  have 
been  tbe  proximate  cause  of  the  loss.  This 
rule  does  not  require  that  the  property  it- 
self should  have  been  burned  by  the  fire  or 
even  injured  directly  by  the  flre  at  all,  but 
simply  that  the  flre  must  have  been  the 
proximate  cause  of  the  injury." 

That  is,  as  applied  to  this  case,  flre,  having 
an  Identity  as  such,  and  which  could  be 
pointed  to  as  a  proximate  cause,  outside  of 
the  furnace  must  cause  the  loss. 

Mere  charring  does  not  require  flre  In  the 
thing  charred  or  direct  application  of  flre. 
It  is  caused  by  flre,  but  not,  necessarily,  by 
flre  outside  its  proper  place,  satisfying  the 
calls  of  the  policy.  Such  a  flre  requires 
luminosity  outside  its  proper  place.  West- 
em  Woolen  Mill  Co.  v.  Northern  Assur.  Co., 
139  Fed.  637,  72  C.  C.  A.  1.  Without  that 
there  may  be  charring  by  radiated  heat  from 
some  luminous  substance  inside  Its  proper 
place  as  In  this  case. 


Digitized  by 


Google 


1126 


122  NOHTHWESTEBN  BBPOBTEB. 


(Wla. 


I  most  not  psaa  the  snggestton  of  the  court 
that  Cuahlng,  J.  In  Scripture  et  al.  y.  Low- 
ell, etc.,  supra,  stated  that  the  logic  of  Aus- 
tin T.  Drew  is  that  the  flre  in  question  was 
an  ordinary  lire.  I  do  not  so  read  Justice 
Cushliig's  language,  as  I  have  before  Indi- 
cated, but  rather  that  the  learned  Massa- 
chusetts court.  In  addition  to  limiting  the 
decision  to  precise  facts,  damage  to  things 
in  the  process  of  manufactiure  by  a  negli- 
gently managed  flre  In  its  proper  place,  said, 
as  plain,  it  seems^  as  need  be,  that  the 
gist  of  the  decision  is,  that  there  was  no 
flre  at  all  outside  its  proper  place. 

In  Way  v.  Ablngton  M.  F.  Ins.  Oo.,  166 
Mass.  67,  43  N.  E.  1032,  32  L.  R.  A.  608,  55 
Am.  St  Rep.  379,  there  was  a  fire  started  in  a 
chimney,  causing  the  lining  thereof  to  fall, 
and  soot  and  smoke  to  escape  and  damage 
the  insured  properly.  I  aasume  my  Breth- 
ren relied  much  on  that  It  is,  however,  in 
pwfect  harmony  with  Austin  y.  Drew,  and 
also  with  Cannon  v.  Phoenix  Ins.  Co.,  110 
Ga.  563,  35  8.  E.  775,  78  Am.  St  Rep.  124, 
conceded,  as  I  understand  it,  to  be  against 
the  conclusion  here  and  in  harmony  with 
all  that  I  have  said.  The  Massachusetts 
case  went  upon  the  ground  that  the  chim- 
ney was  no  proper  place  for  a  fire;  that 
when  it  started  it  was  an  independent  cause, 
one  separate  and  distinct  from  the  fire  in 
the  stove,  and  outside  the  proper  place  for 
a  fire  and  so  was  within  the  risk  insured 
against;  that  the  Ignition  within  the  chim- 
ney being  a  sufficient  flre  to  satisfy  the 
calls  of  the  policy,  no  igrnitlon  outside  tbwe- 
of  was  necessary  to  a  recovery.  Austin  v. 
Drew  was  approved  and  followed.  The 
court  seemed  to  appreciate  that  it  was  go- 
ing a  great  way  to  include  fire  in  a  chim- 
ney. Incidental  to  a  fire  In  a  stove,  within 
the  meaning  of  "fire^'  as  used  in  a'  policy  of 
insurance,  yet  was  careful  to  dignify  it  as 
a  fire  separate  and  distinct  from  that  in  the 
stove,  before  concluding  that  there  could  be 
a  recovery.  "We  are  inclined  to  the  opin- 
ion," said  the  court,  "that  a  distinction 
should  be  made  betwe«i  a  flre  intentionally 
lighted  and  intended  for  a  useful  purpose 
in  connection  with  the  occupation  of  a 
building,  and  a  flre  which  starts  without  hu- 
man agency  in  a  place  where  fires  are  never 
lighted  nor  maintained." 

I  am  unable  to  discover  any  authority  cit- 
ed whidi  comes  as  near  supporting  the  deci- 
sion from  which  I  dissent  as  the  one  Just 
referred  to.  That,  however,  as  is  the  case 
with  all  others,  clearly  involved  actual  flre 
within  the  calls  of  the  policy,  which  imme- 
diately and  proximately,  or  the  latter,  caus- 
ed the  damage. 

In  closing  I  will  notice  that  the  flre  In 
question  is  referred  to  as  "unusual,"  as  If 
that  took  the  case  out  of  Austin  v.  Drew. 
That  theory  was  repudiated  In  Scripture  v. 
Lowell   M.   F.   Ins.   Co.,  supra,  recognised 


here  and  by  most  text-writers  and  courts 
as  having  stated  clearly  the  gist  of  Austin 
V.  Drew,  and  fenced  out  the  numerous  er- 
roneous theories  Indulged  In  by  some,  as  a 
basis  for  criticism,  or  decisions  one  way  or 
the  other,  according  to  circumstances.  Tbe 
flre  is  also  refored  to  as  a  "hostile  fire," 
adopting  language  coined  by  the  Massachu- 
setts court  in  Way  v.  Ablngton  M.  F.  Ins. 
Co.,  supra,  as  if,  within  the  doctrine  of  that 
case,  a  fire  built  in  a  furnace  and  confined 
thweto  may  become  a  "hostile  fire"  merely 
by  becoming  uselessly  and  negligently  too 
large.  The  term  "hostile  flre"  is  misap- 
plied, it  seems,  here.  It  was  used  by  the 
Massachusetts  court  as  an  appropriate  diar- 
acterlzation  of  a  flre  started  accidentally 
In  a  place  not  designed  for  that  purpose. 
Obviously,  If  In  that  case  the  flre  had  been 
started  by  the  assured  In  the  chimney,  it 
would  not  have  been  called  a  "hostile  fire," 
and  within  the  calls  of  the  policy,  merely 
because  It  became  unexpectedly  large  and 
destructive.  It  was  suggested  in  the  opin- 
ion that  had  the  flre  been  set  In  the  chim- 
ney it  would  not  have  been  \yhat  was  de- 
nominated a  "hostile  flre." 

The  importance  of  the  subject  treated 
Justifies,  it  Is  thought,  the  length  of  this 
opinion.  If  I  am  rl^t  In  the  idea  tliat 
the  conrt  has  gone  beyond  any  substantial 
support  in  the  l>ook8,  especially  In  allowing 
the  recovery  for  damages  wliolly  caused  by 
radiated  heat,  without  even  charring,  and 
by  smoke,  what  I  have  written  may  be  help- 
ful when  the  questi4Mi  shall  again  be  pre- 
sented. 

The  opinion  written  for  the  eourt,  doubt- 
less, supports  the  decision  rendered  as  fully 
as  It  can  well  be  done.  It  states  clearly  the 
court's  position  that  radiated  heat  and 
smoke  from  a  fire,  wholly  confined  to  a  fur- 
nace In  which  the  flre  Is  made  for  an  ordi- 
nary purpose,  causing  charring  of  house  fin- 
ish and  discoloration  of  woodwork  and  fur- 
niture, is  within  the  calls  of  the  standard 
policy  of  this  state  for  a  remediable  loss 
directly  caused  "by  flre." 

In  my  opinion,  the  judgment  should  be  re- 
versed, and  the  cause  remanded  for  a  new 
trial,  or  for  judgment  for  the  defendant  It 
has  not  be«a  necessary  to  study  the  case 
carefully  to  discover  which  of  the  alter- 
natives is  the  right  one. 


inLLBB  T.  SOVEmSION  OAMP  WOOD- 
MEN or  THE  WORLD. 
(Supreme  Ooart  of  Wisconsin.     Oct  26,  1909.) 

L  Teial  (S  142*)— Inference  fbom  BnnEircB 

— Question  fob  Coubt  ob  Jcbt. 

Where  different  minds  might  leasiHiably 
draw  different  condosions  from  the  evidence  aa 
to  a  fact  in  issue,  the  juiy,  rather  than  the 
court,  should  draw  the  inurence. 

[Ed.  Note.— For  other  cases,  see  TriaL  Cent 
Dig.  §  337 ;   Dec  Dig.  ^  llE*] 


•For  other  cbms  ho  aam«  toplo  and  Mction  KUKBER  In  Dec  4  Am.  Die*.  IMT  to  data,  it  Raportv  ladara 


Digitized  by 


Google 


Wia.) 


MILLER  V.  SOVEREIGN  CAMP  WOODMEN  OF  THE  WORLD. 


1127 


2.  Death   (|  2*)— Bvidkrck— PBESVMFTtoif 

FBOii  Absence. 

Proof  of  dilizent  aeardi  and  inqniry  is  un- 
neceflsary  to  establish  the  presumption  of  death 
of  a  person  who  has  absented  himself  from  his 
home  or  place  of  residence  for  seven  years. 

(Ed.  Note.— For  other  cases,  see  Death,  Cent 
Dig.  81;  Dec.  Dig.  i  2.*] 
8.  DonciLK  (i  4*)— iNTSNnoiT  AS  DnxsiaN- 

UfO  RSSIDEIfCB. 

Intention  is  almost  inTaiiably  a  oontiolUnf 
«lament  in  determining  residence. 

[Ed.  Note.— For  other  cases,  see  Domicile, 
Cent  Dif.  »  9,  10,  22;  Dec  Dig.  g  4.*] 

4.  DomciLX  (I  1*)  — General  Ruue  as  to 

Habitation  and  Lobs  Thebeof. 

The  genera]  rale  is  that  a  man  must  have  a 
habitation  somewhere,  and  that  he  can  have  but 
one,  and  that,  in  order  to  lose  one,  he  must  ac- 
quire another. 

[Ed.  Note.— For  other  cases,  see  Domicile, 
Cent  Dig.  (  1 ;   Dec  Dig.  fU^ 

6.  DoMiciut  (I  1*)— Nature  of  "Residence." 
"Residence"  signifies  a  person's  permanent 
home  and  principu  establishment,  to  which, 
when  he  is  absent,  he  has  the  intention  of  re- 
tnming. 

(Ed.  Note.— For  other  cases,  see  Domicile, 
Cent  Dig,  {  1 ;   Dec  Dig.  §  1.* 

For  other  definitions,  see  Words  and  Phrases, 
vol.  7,  pp.  6151-«161,  vol.  8,  p.  7788.] 

6.  DouiciLE  (}  8*)— Evidence— Cbii,d  Rksid- 
iNo  WITH  Parent. 

Where  a  son  resided  with  his  mother  till  he 
reached  majority,  and  there  was  abundant  evi- 
dence that  thereafter  he  made  her  home  his 
headquarters,  returning  to  it  frequently,  and 
there  is  no  proof  that  he  acquired,  or  attempted 
to  acquire,  a  new  residence,  it  was  not  error  for 
the  court  to  assume  that  he  resided  with  his 
mother. 

[EA.  Note. — For  other  cases,  see  Domicile, 
Cent  Dig.  i  86;  Dec  Dig.  {  a*] 

7.  Insurance   (8  789*)  —  BEUEnciAL  Insur- 
ance—Proofs  OF  Death — Waiver. 

A  benefidal  insurance  order  waived  its 
right  to  insist  on  proofs  of  death,  where  it  re- 
fused to.  receive  proofs  of  death  based  on  ab- 
sence on  which  the  beneficiary  relied. 

[Ed.  Note. — For  other  cases,  see  Insurance, 
Cent  Dig.  {  1965;   Dec  Dig.  {  789.*) 

Appeal  from  Clrcolt  Conrt,  Green  County; 
George  Grimm,  Judge. 

Action  by  Augusta  Miller  against  the  Sot- 
erelgn  Camp  Woodmen  of  the  World.  From 
a  Judgment  for  plalntlft,  defendant  appeals. 
Affirmed. 

The  plaintiff,  as  the  beneficiary  In  a  bene- 
fit certificate  issued  to  her  son  Otto  Miller, 
brings  this  action  to  recover  $1,000.  To  es- 
tablish the  death  of  the  insured,  evidence  was 
offered  tending  to  show  that  at  the  time  the 
action  was  begun  he  had  been  absent  from 
his  borne  and  unheard  of  for  seven  years. 
No  evidence  was  offered  by  the  defendant 
The  court  directed  a  verdict  in  favor  of 
plaintiff,  and  sudt  ruling  is  assigned  as  er- 
ror. Otto  Miller  was  last  heard  from  in 
1809.  He  was  then  23  years  of  age  and  un- 
married. He  was  a  musician  and  a  barber, 
and  bad  pursued  bot£  callings  for  a  liveli- 
hood, and  bad  been  away  from  home  on  and  off 
for  several  years  prior  to  his  disappearance. 
It  appears  that  he  was  devoted  to  his  moth- 


er, writing  to  her  frequently  when  he  was 
away,  and  returning  to  her  home  at  Irregular 
intervals.  The  testimony  fairly  shows  that, 
in  so  far  as  the  alleged  decedent  had  any  home, 
it  was  with  his  mother.  In  1899  he  was  m- 
gaged  to  be  married  to  a  young  lady  at  Mon- 
roe, where  his  mother  resided.  In  July,  1899, 
the  plaintiff  and  Otto  went  to  Sallna,  Colo., 
where  Mrs.  Miller  visited  some  relatives  un- 
til the  following  July.  It  is  not  entirely  clear 
whether  she  went  to  Colorado  with  the  pur- 
pose of  making  It  her  permanent  home,  but 
the  Inference  from  the  testimony  is  strong 
that  she  did  not  Otto  did  pot  remain  at 
Sallna  long,  but  spent  most  of  his  time  In 
Denver  and  Boulder  until  December,  1899, 
at  which  time  he  wrote  his  mother  from  Den- 
ver. Nothing  further  had  been  heard  from 
him  up  to  the  time  of  the  trial.  Some  ru- 
mors reached  plaintiff  as  to  bis  whereabouts, 
and  numerous  letters  were  written  to  parties 
who  It  was  thought  might  be  likely  to  know 
of  him  if  he  were  alive.  The  plaintiff  con- 
tinued to  make  the  required  payments  on  the 
benefit  certificate  for  the  seven  years  after 
the  disappearance  of  her  son. 

Jeffrls,  Mouat,  Smith  &  Avery  (Arthur 
H.  Burnett,  of  counsel),  for  appellant.  J.  M. 
Becker,  for  respondent 

BARNES,  J.  (after  stating  the  facts  as 
above).  It  is  contended  by  the  defendant 
that  the  evidence  offered  was  Insufilcient  to 
raise  the  presumption  of  death,  and  that  a 
verdict  should  have  been  directed  in  Its  favor. 
If  this  contention  be  not  well  taken,  then  it  Is 
urged  that  the  jury  should  have  been  pet- 
mltted  to  pass  upon  the  principal  issue  in 
the  case. 

Some  of  the  more  modem  cases  hold  that 
an  interested  party  seeking  to  establish  the 
death  of  another  may  not  rely  on  the  absence 
of  such  party  from  his  home  or  place  of  resi- 
dence for  seven  years  without  being  heard 
from  as  being  sufficient  to  raise  a  presump- 
tloD  of  death,  but,  In  addition  thereto,  it 
must  be  shown  that  diligent  search  and  In- 
quiry have  been  made  and  all  available 
sources  of  information  exhausted  without  re- 
sult before  a  prima  facie  case  of  death  Is  es- 
tablished. Modern  Woodmen  of  America  v. 
Oerdom,  72  Kan.  391,  82  Pac  1100,  2  L.  R. 
A.  (N.  S.)  809,  and  cases  cited.  If  this  rule 
is  adopted  by  this  court,  the  judgment  could 
not  be  sustained.  While  a  considerable 
amount  of  evidence  of  search  and  Inquiry  was 
offered  by  plaintiff,  and  was  not  contradicted, 
still  different  minds  might  reasonably  draw 
different  conclusions  as  to  whether  the  search 
was  sufficiently  diligent,  thorough,  and  ex- 
haustive to  meet  the  requirements  of  the  rule. 
In  such  a  case  the  Jury  rather  than  the  court 
should  draw  the  Inference.  The  rule  stated 
by  Mr.  Greenleaf  is  that:  "After  the  lapse  of 
seven  years,  without  intelligence  concerning 


•TM  etiMT  esMS  SM  tame  toplo  sad  section  NUUtilia  In  Dec.  *  Am.  Dies.  1N7  to  data,  ft  Reporter  Indexes 


Digitized  by 


Google 


1128 


122  M0BTHWE8TERN  RBPORTEB. 


(WU. 


the  person,  the  presumption  of  life  ceiiBeB, 
and  the  burden  of  proof  1b  devolved  upon  the 
other  party.  *  •  •  It  Is  sufficient,  If  It 
appears  that  he  has  been  absent  for  seven 
years  from  the  particular  state  of  his  resi- 
dence, without  having  been  heard  from."  1 
Greenleaf  on  Evidence,  i  41.  Other  treatises 
on  the  law  of  evidence  state  the  rule  In  sub- 
stantially the  same  way.  Wlgmore  on  Evi- 
dence, !  2531;  Jones  on  Evidence  (2d  Ed.)  8 
61.  Each  of  the  authors  named  cite  ap  abun- 
dance of  cases  In  support  of  the  rule'*an- 
nounced.  In  Cowan  y.  Lindsay,  30  Wis.  686, 
this  court  adopted,  without  quallflcation,  the 
rule  as  laid  down  in  Greenleaf  on  Evidence, 
and  has  reiterated  such  rule  in  Whlteley, 
Adm'r,  v.  Equitable  Life  Assurance  Society, 
72  Wis.  177,  89  N.  W.  369,  and  in  Wisconsin 
Trust  Co.  V.  M.  &  F.  Ins.  Co.  Bank,  105  Wis. 
464,  81  N.  W.  642,  although  It  was  not  neces- 
sary to  the  decision  of  either  of  the  two'  cases 
last  cited  to  do  so.  Thus  it  will  be  seen  that 
the  court  is  firmly  committed  to  the  general 
doctrine  which  does  not  require  proof  of  dill- 
gent  search  and  Inquiry  in  order  to  establish 
the  presumption  of  death  when  a  person  has 
absented  himself  from  his  home  or  place  of 
residence  for  seven  years.  To  bold  in  this 
case  that  the  home  of  the  plaintiff  was  not 
that  of  her  son  would  be  equivalent  to  hold- 
ing that  where  a  son  has  reached  his  majori- 
ty, and  has  made  It  a  practice  to  work  away 
from  home  at  times,  be  thereby  loses  bis 
domicile  with  bis  parents,  at  least  in  the  ab- 
sence of  direct  evidence  on  his  part  of  Inten- 
tion not  to  change  bis  place  of  residence. 

The  plaintiff  is  a  widow  72  years  of  age. 
She  bad  six  children.  One  died"  in  1898  and 
one  in  1899,  and  three  others  died  prior  to 
1898,  so  that  Otto  was  the  only  Uving  child 
and  heir  when  his  mother  went  to  Colorado 
in  July,  1899.  Otto  appears  from  the  evi- 
dence to  have  been  an  affectionate  son,  re- 
turning often  to  the  borne  of  his  mother,  and 
writing  her  very  frequently  during  his  ab- 
sence. The  death  of  the  plaintiff's  daughter 
Emma  In  1899  was  the  immediate  cause  of 
her  going  to  Colorado.  While  there  Otto 
made  her  numerous  visits  up  to  the  time  of 
his  disappearance.  There  was  nothing  to  sug- 
gest that  he  had  acquired  or  intended  t6  ac- 
quire a  home  or  place  of  residence  different 
from  that  of  bis  mother.  Intention  is  almost 
invariably  a  controlling  element  in  determin- 
ing residence.  In  Pennsylvania  it  Is  beld 
that:  "Residence  Is,  Indeed,  made  up  of  fact 
and  intention;  that  is,  of  abode  with  intention 
of  remaining.  But  it  is  not  broken  by  going 
to  seek  another  abode;  but  continues  until 
the  fact  and  Intention  unite  in  another  abode 
elsewhere."  Pfoutz  v.  Comford,  36  Pa.  420, 
422.  Other  courts  hold  that  a  person  leaving 
bis  place  of  residence  with  the  present  Inten- 
tion of  abandoning  it  thereby  ceases  to  be  a 
resident  of  such  place.  Swaney  v.  Hutcblns, 
13  Neb.  266,  13  ^.  W.  282.  But  residence  is 
not  lost  by  leaving  it  for  temporary  purposes, 
where  the  intention  remains  to  return  when 


such  purposes  are  acoompllshed.  Daubmajm 
v.  City  Council,  39  N.  J..  Law,  67,  59;  Strat- 
ton  V.  Brlgham,  34  Tenn.  420,  422;  Inhabit- 
ants of  Warren  v.  Inhabitants  of  Thomaston, 
43  Me.  406,  418,  69  Am.  Dec.  69.  The  general 
rule  is  that  a  man  must  have  a  habitation 
somewhere,  and  that  be  can  have  but  one^ 
and  that,  in  order  to  lose  one,  he  must  ac- 
quire another.  Kellogg  v.  Supervisors,  42 
Wis.  97,  107;  Bulkley  v.  Inhabitants  of  Wil- 
iiamstown,  3  Gray  (Mass.)  493,  495.  Resi- 
dence signifies  a  person's  permanent  borne 
and  principal  establishment,  to  which  when- 
ever he  1b  absent  he  has  the  intention  of  re- 
turning. In  re  Clark's  Estate,  61  Hun,  619, 
15  N.  Y.  Supp.  870,  371.  Section  69,  St  1898, 
prescribes  rules  for  determining  the  residence 
of  electors.  Subdivision  3  of  this  section  pro- 
vides that  a  temporary  absence  from  borne 
with  the  intention  of  returning  Bhall  not  de- 
prive a  party  of  bis  residence;  and  subdivi- 
sion 9  provides  that  intention  to  acquire  a 
new  residence  without  removal  shall  avail 
nothing,  and  that  neither  shall  removal  with- 
out Intention.  These  statutory  provisions 
would  seem  to  be  merely  declaratory  of  the 
common  law. 

The  residence  of  Otto  Miller  was  with  bis 
mother,  at  least  until  be  reached  bis  majori- 
ty, as  he  could  form  no  valid  Intent  to  change 
it  before.  There  is  no  proof  that  he  acquired 
or  attempted  to  acquire  any  new  residence. 
There  is  abundant  evidence  that  he  did  re- 
turn to  the  home  of  his  mother  frequently, 
and  at  least  made  It  his  headquarters.  Un- 
der these  circumstances,  we  do  not  think  the 
court  erred  in  assuming  that  the  residence 
of  the  plaintiff  was  the  residence  of  her  son. 
The  certificate  upon  which  suit  was  brought 
provided  that  no  legal  proceeding  should  be 
instituted  to  recover  thereunder  until  90  days 
after  proofs  of  death  were  furnished.  The 
constitution  of  the  defendant  required  the  of- 
ficers of  the  local  camp  to  report  the  death  of 
a  member  to  the  sovereign  clerk  of  the  order, 
and  made  it  the  duty  of  such  clerk  to  forward 
to  the  clerk  of  the  local  camp  such  blanks  as 
should  be. prescribed  by  the  sovereign  com- 
mander and  finance  committee,  npon  which 
to  make  proofs  satisfactory  to-  them.  A  prop- 
er request  for  such  blanks  was  made,  and 
was  refused  on  the  ground  that  no  notice  of 
death  had  been  received.  In  refusing  to  send 
the  blanks,  an  dfflcer  of  the  defendant,  pre- 
sumably duly  authorized,  stated  that  proof  of 
absence  could  not  be  received  as  proof  of 
death,  and  that  the  validity  of  the  claim  made 
could  not  be  recognized  unless  actual  death 
could  be  shown.  The  defendant,  no  doubt 
in  conformity  with  the  provisions  of  Its  con- 
stitution, had  blanks  upon  which  to  make 
proofs  of  death  that  would  i)e  satisfactory  to 
it.  The  plaintiff  could  hardly  be  expected  to 
know  what  was  required  in  this  regard. 
There  was  a  denial  of  liability,  If  plaintiff 
proposed  to  rely  on  the  presumption  of  death 
resulting  from  absence..  Under  these  circum- 
stances,  the  defendant  waived  its  right  to  in- 


Digitized  by 


Google 


Wla.) 


MONTURB  V.  REGLING. 


1129 


■tot  on  proote  of  deaOi  as  a  condition  prece- 
dent to  the  beginning  of  enlt.  King  ▼.  Hekla 
Fire  Ins.  Co.,  68  Wis.  508,  17  N.  W.  297; 
Fanst  y.  American  Fire  Ins.  C!o.,  91  Wis.  158, 
64  N.  W.  883,  30  L.  R.  A.  783,  51  Am.  St. 
Rep.  876;  Matthews  t.  Capital  Fire  Ins.  Co., 
115  Wis.  272,  91  N.  W.  675. 
Judgment  afflnued. 


MONTURE  V.  REGLING  et  al. 
(Supreme  Court  of  Wisconsin.     Qct  26,  1909.) 

1.  TbIAL  (I  ]e9«)— DiBECTION  OF  JCOOMKNT. 

Where  the  an&wer  admits  liability  to  the 

Slaintiff,  a  judgment  will   not  be  directed  for 
efendant. 

TEd.  Note.— For  other  cases,  see  Trial,  Dec. 
Dig.  {  169.»1 

2.  Appeal  and  Ebrob  (J  853*)— Sufficiency 

— CONSTRCCTION. 

The  complaint  averred  that  defendants  were 
indebted  to  plaintiff  for  grayel  "baoled  and  de- 
livered" at  renucat  of  defendants  for  the  agreed 
price  of  "?2.50  per  load  for  hauling  the  same." 
The  answer  admitted  thin,  but  averred  that 
the  price  agreed  on  was  $2  per  load.  Defend- 
ants contended  that  the  action  was  on  a  con- 
tract for  services  performed,  and  not  on  a  con- 
tract for  sale  of  gravel  by  the  load.  The  cir- 
cuit court  construed  the  complaint,  taken  with 
the  answer  and  the  evidence,  to  present  a  case 
for  the  recovery  of  the  reasonable  market  value 
of  gravel  sold  by  the  load.  Held,  that  alleged 
errors  based  on  defendants'  theory  mast  fail; 
there  being  sufficient  duplicity  in  the  pleading 
to  make  the  court's  construction  admissible  and 
conclusive  on  the  parties  on  appeal. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error,  Dec.  Dig.  (  853.*] 

8.  Trial  (S  851*)— Speciai,  Vebdict— Ques- 
tions TO  BE  Submitted. 

Where  a  special  verdict  submitted  covered 
the  issues  precisely,  the  court  was  justified  in 
refusing  to  submit  any  other  questions. 

[Ed.  Note.— For  other  cases,  see  Trial,  Cent. 
Dig.  {  834;    Dec.  Dig.  f  351.*] 

4.  Evidence  (8  113*)— Relevancy- Value. 

In  an  action  to  recover  the  reasonable  mar- 
ket value  of  gravel  sold  by  the  load,  evidence 
offered  to  prove  the  market  value  by  the  gen- 
eral or  prevailing  price  of  gravel  is  admissible. 

[Ed.    Note.— For  other  cases,   see   Evidence, 
Cent.  Dig.  {§  259-296;    Dec.  Dig.  {  113.*1 

5.  Evidence  (i  142*)—Relevancy— Value. 

In  an  action  to  recover  the  reasonable  mar- 
ket value  of  gravel  sold  by  the  load,  evidence  of 
the  terms  of  specific  contracts  with  other  persons 
is   inadmissible. 

[Ed.    Note.— For   other   cases,    sCe    Evidence, 
Cent.  Dig.  {{  416-419 ;    Dec.  Dig.  {  142.*] 

6.  Trial  (J  62*)— ReceptioS'  of  Evidence— 
Rebuttal. 

Where  plaintiff  suing  for  the  reasonable 
market  value  of  gravel  sold  offered  evidence  of 
the  comparative  size  of  loads  delivered,  it  was 
error  to  refuse  to  allow  defendant  to  show  dis- 
crepancy between  sizes  of  loads  delivered  to  de- 
fendants and  those  delivered  to  other  persons  for 
the  same  price ;  this  evidence  being  proper  in 
rebuttal  of  plaintiCTs  evidence  on  the  same  sub- 
ject. 

[Ed.  Note.— For  other  cases,  see  Trial,  Dec. 
Dig.  i  62.*] 


7.  Appeal  and  Bbsob  (|  1171*)— Review— 
Habmless  Brbob  — Ebbob  Affecting  Sub« 
stantial  Right  of  Appellants. 

Laws  1909,  p.  205,  c.  192,  requires  a  judg- 
ment to  be  affirmed  notwithstanding  the  im- 
proper admission  of  evidence,  unless  it  appears 
that  the  error  complained  of  has  affected  the 
substantial  rights  of  the  appellants.  Held,  that 
wliere  the  erroneous  rulings  on  evidence  vitally 
affect  the  whole  amount  in  controversy,  even 
though  the  amount  will  not  pay  for  a  new  trial, 
a  new  trial  will  be  ordered,  the  substantial 
rights  of  the  appellant  being  affected,  nor  can 
the  maxim.  "De  minimis  non  curat  lex,"  be  ap- 
plied, as  the  parties  have  a  right  to  appeal  on 
the  ground  of  error  regardless  of  the  amount 
involved. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error  Cent.  Dig.  §8  4546-4554;  Dec.  Dig.  $ 
1171.*] 

Appeal  from  Circuit  Court,  Shawano  Count 
ty;  John  Goodland,  Judge. 

Action  by  Charles  Monture  against  Wil- 
liam RegUng  and  another.  From  a  judg- 
ment for  plalntitr,  defendants  appeal.  Re- 
versed and  remanded. 

Eberleln  &  Eberleln,  for  appellanta  P.  J. 
Winter,  for  respondent 

TIMLIN,  J.  The  complaint  averred  that 
the  defendants  were  indebted  to  the  plain- 
tiff upon  an  account  for  34  loads  of  gravel 
hauled  and  delivered  by  the  plaintiff  to  de- 
fendants at  request  of  the  latter  for  the 
agreed  price  of  $2.50  per  load.  The  answer 
admitted  this,  but  averred  the  price  agreed 
upon  was  $2  per  load,  and  was  all  paid  ex- 
cept $38.  Upon  the  trial  the  complaint  was 
amended  so  as  to  claim  to  recover  what  the 
gravel  was  reasonably  worth  per  load.  In- 
stead of  an  agreed  price.  By  special  verdict 
the  Jury  negatived  the  claim  of  defendants 
that  there  was  a  price  fixed  by  contract, 
but  found  that  the  resaonable  value  of  the 
gravel  delivered  was  $3  per  load.  For  the 
amount  thus  arrived  at,  less  conceded  pay- 
ments, the  plaintiff  had  judgment  and  the 
defendants  appealed.  It  might,  not  unrea- 
sonably, be  supposed  that  in  such  a  case  the 
parties  would  be  content  with  two  trials — 
one  in  the  justice  court  and  one  In  the  cir- 
cuit court  But  In  this  state  a  party  to  any 
such  controversy  without  regard  to  the 
amount  Involved  and  without  inquiry  into 
his  discretion  or  his  motives  may  gratify 
bis  yearning  for  Justice  or  for  litigation  by 
appeal  to  this  court  and  receive  the  same 
careful  consideration  accorded  to  other  liti- 
gants. It  must  be  obvious  from  the  above 
statement  of  the  pleadings  that  the  only 
question  at  Issue  between  the  plaintiff  and 
defendants  was  whether  there  was  an  agree- 
ment that  the  gravel  be  delivered  at  $2  per 
load  or  at  its  market  or  reasonable  value, 
and,  if  the  latter,  what  was  the  market  val- 
ue. It  appeared  from  the  testimony  of  ap- 
pellants that  they  purchased  this  gravel  by 
the  load  receiving  these  loads  from  time  to 
time  until  about  September  12th,  when  one 


•For  otlMT  cases  see  lam*  topic  and  section  NUMBER  In  Dec.  ft  Am.  Digs.  1907  to  date,  ft  Reporter  IndexM 


Digitized  by  VjOOQ  [C 


1130 


122  NOBXHWESTBBN  BBPOBTEH. 


(Wta. 


of  tbe  defendants  asked  the  plaintiff  if  he 
was  going  to  cliarge  $3  per  load.  Tlie  plain- 
tiff said  "Tes,"  whereupon  he  was  notified 
not  to  haul  any  more  and  no  more  was 
hauled. 

Appellants'  counsel  contends  tliat  In  the 
trial  of  this  simple  question  10  reversible  er- 
rors occurred  in  the  court  below.  The  first 
Is  because  Judgment  was  not  directed  for  de- 
fendants. But  Judgments  are  not  usually  di- 
rected for  defendants  who  by  their  answer 
admit  liability  to  the  plaintiff,  as  in  this 
case.  It  is  contended  that  the  action  is  upon 
a  contract  for  services  performed,  and  not 
a  contract  for  sale  of  gravel  by  the  load, 
and  that  there  is  no  proof  of  the  reasonable 
value  of  the  services  performed.  But  the 
proposition  that  the  contract  ia  one  for  serv- 
ices rests  upon  the  words  of  the  complaint, 
"hauled  and  delivered,"  used  instead  of  the 
customary  words,  "sold  and  delivered,"  and 
upon  the  words  "$2.60  per  load  for  hauling 
the  same."  The  circuit  court  construed  the 
complaint,  taken  with  the  answer  and  the 
evidence,  to  present  a  case  for  the  recovery 
of  the  reasonable  market  value  of  gravel 
sold  and  delivered  by  the  load,  and  there 
is  BufiBcIent  duplicity  in  the  pleading  to  make 
this  construction  admissible  and  conclusive 
on  the  parties  on  this  appeal.  All  alleged 
errors  bottomed  upon  this  theoi^  must  foil. 
The  special  verdict  is  said  to  be  defective 
and  insufficient,  but  by  that  verdict  the  Jury 
were  asked  whether  there  was  ao  express 
agreement  for  $2  per  load,  and,  If  not,  what 
was  the  reasonable  value  per  load.  This 
covered  the  issues  precisely,  and  the  court 
was  Justified  in  refusing  to  submit  any  oth- 
er questions. 

It  is  next  claimed  that  the  court  erred  In 
receiving  evidence  offered  by  the  plaintiff 
and  In  rejecting  evidence  offered  by  the  de- 
fendants. The  plaintiff  was  asked  what  was 
the  market  value  of  gravel,  and  what  was  it 
reasonably  worth  per  load  delivered  in  the 
city  of  Shawano,  and  he  answered  $3  per 
load.  After  cross-examination  the  plaintiff's 
attorney  did  not  seem  satisfied  with  this, 
and  Inquired  further  on  redirect  examina- 
tion: "Q.  Ton  hauled  gravel  to  different 
people  In  Shawano?  Ans.  Tes.  Q.  What 
had  you  received  per  load  for  gravel?"  This 
was  objected  to,  the  objection  overruled,  and 
the  defendants  excepted.  The  plaintiff  an- 
swered, "$3."  He  was  then  asked  whether 
these  loads  were  of  the  same  size  as  those 
hauled  for  defendants,  and  against  objection 
and  exception  he  answered  "Yes."  This  tes- 
timony received,  if  not  Incompetent,  borders 
closely  upon  incompetency.  It  it  can  be  con- 
sidered proof  of  market  value  by  the  general 
or  prevailing  price  obtaining  at  Shawano 
■  for  this  commodity,  it  would  be  proper ;  but, 
if  it  can  be  considered  an  attempt  to  prove 
tiie  terms  of  specific  contracts  with  other 
persons,  It  would  be  incompetent  The  plain- 
tiff afterward  called  several  persons  to 
show  what  they  were  paying  htm  per  load 


for  gravd  In  Shawano  and  about  the  time 
is  question.  When  the  defendants  put  in 
their  proof,  they  offered  to  show  by  a  wit- 
ness on  the  stand  that  as  to  some  of  these 
persons  the  plaintiff -was  not  receiving  $3 
per  load  for  the  gravel  delivered,  and  also 
oifered  evidence  tending  to  show  that  the 
loads  of  gravel  delivered  by  the  plaintiff  to 
defendants  contained  much  less  than  two 
cubic  yards  per  load,  that  gravel  was  wortb 
in  Shawano  only  $1.25  per  cubic  yard,  and 
the  loads  delivered  by  plaintiff  to  defendants 
were  small  loads,  smaller  than  those  deliv- 
ered to  other  persons.  This  testimony  was 
rejected;  the  view  of  the  trial  court  ap- 
parently being  that  the  testimony  offered  by 
plaintiff  was  merely  general  and  for  the 
purpose  of  establishing  the  market  price, 
while  that  offered  by  defendants  was  specific 
and  related  to  particular  contracts,  and  that 
the  contents  In  cubic  yards  or  cubic  feet 
of  a  load  could  not  be  proven  as  bearing 
upon  the  market  price  because  there  was  no 
objection  made  to  the  size  of  loads  at  the 
time  the  defendants  received  them,  while 
defendants'  pleadings  admitted  a  purchase 
by  the  load.  The  learned  circuit  Judge  was 
probably  in  error,  not  in  his  ruling  on  the 
evidence  had  it  been  as  he  understood  it, 
but  the  evidence  goes  farther  on  the  part 
of  the  plainliff  than  general  evidence  of 
sales,  and  the  evidence  offered  by  defend- 
ants and  rejected  tended  to  contradict  the 
statement  of  the  plaintiff  that  he  was  re- 
ceiving |3  per  load  from  a  perscm  designated 
by  him,  and  to  prove  that  the  loads  deliv- 
ered by  plaintiff  to  defendants  were  small 
loads,  and  consequently  worth  less  than  $3 
per  load.  The  plaintiff  In  proving  the  mar- 
ket or  reasonable  value  per  load  offered 
evidence  of  the  comparative  size  of  the  loads 
delivered.  Evidence  on  the  part  of  the  de- 
fendants to  show  a  less  quantity  In  a  load 
and  to  show  discrepancy  between  sizes  of 
loads  delivered  to  defendants  and  those  de- 
livered to  other  persons  from  whom  plaintlfl 
was  receiving  $3  per  load  was  competent  and 
should  have  been  received,  not  in  support  of 
defendants'  answer,  but  In  rebuttal  of  plain- 
tiff's evidence  on  this  same  subject.  There 
was  therefore  error  as  assigned  In  the  ad- 
mission and  rejection  of  evidence. 

We  are  required  by  chapter  182,  p.  205, 
Laws  1909,  to  affirm  the  Judgment  of  the 
court  below  notwithstanding  these  errors, 
unless  in  our  opinion,  after  an  examination 
of  the  entire  action  or  proceeding.  It  shall 
appear  that  the  error  complained  of  has  af- 
fected the  substantial  rights  of  the  appel- 
lants. The  actual  difference  between  appel- 
lants and  respondent  Is  60  rents  per  load  on 
34  loads  of  gravel,  or  $17,  because  the  $3 
per  load  which  the  Jury  found  to  be  the  rea- 
sonable value  Included  GO  cents  per  load  to 
be  paid  by  the  respondent  to  the  owners  of 
the  gravel  pit,  while  the  $2  per  load  claimed 
by  defendants  In  their  answer  excluded  50 
cents  per  load  to  be  paid  by  appellants  to 


Digitized  by  VjOOQ  IC 


Wiaj 


BTARE  T.  DUHRINQ. 


1131 


tbe  owners  of  the  gravel  pit  Doubtless  the 
whole  difference  of  $17  will  not  cover  the 
cost  of  a  new  trial ;  but;  as  the  evidence  er- 
roneously admitted  and  erroneously  exclud- 
ed vitally  affects  the  wliole  amount  In  con- 
troversy between  the  parties,  we  cannot  say 
that  the  substantial  rights  of  the  appel- 
lants were  not  affected,  nor  can  we  dismiss 
the  appeal  or  affirm  the  Judgment  by  appli- 
cation of  the  maxim,  "De  minimis  non  curat 
lex,"  so  long  as  the  parties  have  a  rlgbt 
In  the  law  to  appeal  to  this  court  on  the 
ground  of  error  in  an  action  at  law  regard- 
less of  the  amount  Involved. 

We  And  no  reversible  error  In  the  Instruc- 
tions to  the  jury,  nor  in  the  form  of  the 
special  verdict,  nor  in  any  other  question 
properly  before  this  court  for  review.  But 
for  error  in  tbe  admission  and  exclusion  of 
evidence  the  judgment  must  be  reversed. 
Kelley  v.  Sehupp,  60  Wis.  76,  18  N.  W.  725; 
Jones,  Evidence,  {  140,  and  cases  cited.    . 

The  judgment  of  the  cliTnilt  court  is  re- 
versed, and  tbe  cause  remanded  for  a  new 
trial. 


STARK  V.  DUHRINO  et  al. 
(Supreme  Genrt  of  Wisconsin.     Oct.  26,  1909.) 

1.  Apfcai.  and  Bbrob  (i  724*)— AssiONiiZHTB 

or   EBROK— INADXQUACT. 

Aasij^nments  of  errof  that  the  court  erred 
in  the  admission  of  evidence,  in  the  rejection  of 
evidence,  in  its  findings  of  fact,  in  conclugions 
of  law,  and  in  not  finding  that  defendant  com- 
mitted tbe  wrong  alleged  in  the  complaint  are 
too  general. 

[Ed.  Note. — For  other  cases,  see  Appeal  and 
Error.  Cent.  Dig.  {{  2997-3027;  Dec.  Dig.  i 
724.*] 

2.  Apfbai,  aitd  Ebbo'b  ({  1061*)— Habjtless 
EiBBOB  —  Ebboneods  Adicibsion  of  Evi- 
dence. 

Where  there  was  competent  evidence  to  sus- 
tain tbe  findings  of  the  court,  tbe  error  in  ad- 
mitting other  evidence  was  not  prejudicial. 

[Ed.  Note.— For  other  cases,  see  Appeal  and 
Error,  Cent  Dig.  U  4161-4170;  Dec  Dig.  t 
1051.*] 

3.  PuiADiNo  ({  411*)— Waives  or  Objections 

Under  St  189*8,  {  2658,  authorizing  a  de- 
murrer to  a  counterclaim  because  the  cause  of 
action  stated  in  it  is  not  availSble,  and  section 
2660,  providing  that  the  failure  to  nutke  the  ob- 
jections to  a  counterclaim  by  demurrer  or  re- 
ply is  a  waiver  thereof,  the  objection  that  the 
counterclaim  cannot  be  properly  pleaded,  not 
raised  by  demurrer  or  reply,  is  waived. 

[Ed.  Note. — For  other  cases,  see  Pleading, 
Cent  Dig.  {  1384;  Dea  Dig.  §  411.*] 

4.  Boundabies  (I  35*)— Evidence— Admissi- 

BILITT. 

In  a  suit  Involving  the  location  of  a  bound- 
ary line,  evidence  of  adverse  possession  is  com- 
petent as  an  item  of  evidence  showing  the  true 
U>cation  of  the  line. 

[Ed.  Note.— For  other  cases,  see  Boundaries, 
Cent  Dig.  i  177;    Dec  Dig.  I  35.*] 

Appeal  from  Circuit  Court,  Dodge  County; 
George  Grimm,  Judge. 


Action  by  Carl  Stark  against  William 
Onhring  and  others.  From  a  judgment  for 
defendants,  plaintiff  appeals.    Affirmed. 

J.  E.  Malone,  for  appellant  Kading  & 
Kadlng,  for  respondents. 

TIMUN,  J.  This  action,  for  trespass 
quare  clansum  committed  November  24, 1906, 
on  tbe  southwest  quarter  of  the  northeast 
quarter  of  section  21,  town  9,  range  16  east 
was  brought  in  justice  court  The  defend- 
ants answered  separately,  each  claiming  that 
the  acts  complained  of  as  trespasses  were 
done  on  the  northwest  quarter  of  the  south- 
east quarter  of  tbe  same  section,  which  was 
the  land  of  the  defendant  William  Duhring, 
Jr.,  and  not  upon  plalntlfTs  land,  and  Wil- 
liam Dubrlng,  Jr.,  by  way  of  counterclaim 
averred  trespasses  committed  by  the  plain- 
tiff on  the  last-mentioned  land  on  October  17, 
1905,  and  at  other  times,  and  prayed  for 
damages  against  the  plaintiff.  Claim  was 
made  that  the  title  of  the  land  was  In  ques- 
tion, a  bond  given,  and  the  cause  certified 
to  the  county  court  of  Dodge  county,  and 
thence  removed  by  stipulation  to  the  circuit 
court  for  the  same  county  where  a  jury  trial 
was  apparently  waived  and  the  cause  tried. 
There  was  no  demurrer  or  reply  to  the  coun- 
terclaims, but  the  parties  went  to  trial  on  the 
merits,  and  treated  the  counterclaims  as  at 
issue.  Findings  of  fact  and  conclusions  of 
law  were  made  and  filed  In  which  the  court 
found,  In  substance,  that  the  case  was  one  of 
disputed  boundary  and  the  true  boundary 
was  as  claimed  by  defendants,  and  conse- 
quently that  tbe  defendants  did  not  trespass 
on  plaintiffs  land,  but  plalntifl  trespassed 
on  defendants' , land. 

Error  Is  assigned  (1)  in  the  admission  of 
evidence;  (2)  in  the  rejection  of  evidence; 
(3)  "the  court  erred  in  its  findings  of  fact 
found";  (4)  in  conclusions  of  law;  (6)  In 
not  finding  that  defendant  committed  the 
trespass  set  forth  in  the  complaint  These 
are  very  inadequate  assignments  of  error  be- 
cause too  general;  the  third  and  fourth  going 
in  very  general  terms  to  the'  whole  merits 
of  the  controversy.  They  do  not  help  more 
to  point  out  the  error  complained  of  than  if 
the  appellant  merely  said:  "The  judgment 
is  wrong."  Appellant  evidently  does  not  rely 
very  seriously  upon  the  first  two  assignments 
of  error,  for,  besides  referring  to  the  page 
of  the  printed  case  where  found,  he  merely 
sajrs:  "We  contend  that  the  motion  to  strilce 
out  testimony  of  William  Duhring,  Jr.,  should 
have  been  granted;  •  •  ♦  also  that  ob- 
jections to  admission  of  testimony  on  the 
same  page  should  be  sustained,  also  the  same 
on  page  27."  No  further  argument  and  no 
citation  of  authority.  The  case  having  been 
tried  without  a  jury,  and  there  being  other 
evidence  to  support  the  findings,  appellant 
was  not  prejudiced  by  any  such  ruling. 
Wolf  V.  Theresa,  etc.,  Co.,  115  Wis.  402,  91 


•For  0tli«r  oaaas  M*  samo  topic  and  •eetlon  NUMBER  in  Dm.  A  Am.  Diss.  UOT  to  data^  ft  Baport*r  ladoxss 


Digitized  by  VjOOQ  l€ 


1132 


122  NORTHWESTERN  RKPORTEB. 


(Wis. 


N.  W.  11)14.  XTnder  Bome  or  all  of  the  fore- 
going assignments  of  error,  the  appellant 
presents  that  no  such  counterclalma  could  be 
properly  pleaded  In  this  action,  and  this  con- 
stitutes the  principal  argument  on  appeal. 
But  this  objection,  if  it  could  be  considered 
good,  Is  waiyed  by  failure  to  raise  it  by  de- 
murrer or  reply  to  the  counterclaim.  Sections 
2658,  2660,  St  1898.  On  the  merits,  we  think 
the  case  presented  questions  of  fact  relative 
to  the  true  location  of  the  disputed  boundary. 
There  is  evidence  to  support  the  findings. 

The  evidence  which  appellant  objects  to 
as  proof  of  adverse  possession  is  not  con- 
sidered by  the  court  for  any  other  purpose 
than  to  establish,  or  tend  to  establish,  the 
true  location  of  the  disputed  boundary  line. 
No  other  use  is  made  of  it,  for  the  court  finds 
that  this  land  was  not  part  of  plaintlfTs  sub- 
division, but  lay  to  the  south  of  such  sub- 
division and  was  part  of  the  subdivision  own- 
ed by  Duhring,  Jr.  The  latter  did  not  need 
any  adverse  possession  to  hold  his  own  land 
against  the  plaintiff,  and  the  question  of 
adverse  possession  is  not  In  the  case  at  all 
except  BO  far  as  It  constitutes  an  item  of  evi- 
dence tending  to  show  the  true  location  of 
the  boundary  line;  We  perceive  no  error  In 
anything  complained  of  by  appellant 

The  judgment  of  the  circuit  court  is  af- 
firmed. 


STATE  BANK  OF  BEESEVILLE  v.  KTEN- 

BERGER  et  al. 
(Supreme  Court  of  Wisconsin.    Oct.  26,  1909.) 

1.  Schools  and  School  Districts  (f  62*)— 
Liability  of  Officers. 

In  an  action  a^inst  the  oncers  of  a  school 
district  on  a  district  order  signed  by  them,  it 
is  necessary.  In  order  to  hold  them  individually 
responsible,  to  show  that  it  was  illegally  issued, 
as  it  will  be  presumed  to  be  a  legal  order  until 
the  contrary  is  shown. 

[Ed.  Note.— For  other  cases,  see  Schools  and 
School  Districts,  Cent  Dig.  }  148;  Dec.  Dig. 
i  62.*]  .      '    •         • 

2.  Schools  and  School  Distbicts  (8  62*)— 
LiABiLiTT  OF  Officers. 

St  1898,  §  432,  provides  that  no  act  au- 
thorized to  be  done  by  a  school  board  shall  be 
valid  unless  voted  at  its  meeting,  and  section 
436  provides  that  the  purchases  of  school  sup- 
plies must  be  approved  at  a  regular  meeting  of 
the  board  at  which  all  members  are  present 
In  an  action  against  a  school  board,  it  was 
shown  that  a  contract  for  school  supplies  was 
not  executed  at  a  meeting  of  the  board,  and 
that  an  order  signed  by  them  in  payment  for 
supplies  was  not  signed  by  each  in  the  presence 
of  the  others.  Held,  that  the  contract  and  order 
were  illegally  issued,  and  that  the  members  of 
the  board  were  individually  liable  under  the 
contract 

\Ed.  Note.— For  other  cases,  see  Schools  and 
School  Districts,  Cent  Dig.  I  148;  Dec.  Dig.  8 
62.*] 

Appeal  from  Circuit  Court,  Dodge  County; 
George  Grimm,  Judge. 

Action  by  the  State  Bank  of  Reesevllle 
against  Theo.  Klenberger  and  others.    From 


a  judgmmt  to/e  defendants,  plalntUT  appeals. 
Reversed  and  remanded,  with  instructions 
to  enter  judgment  for  plaintiff. 

This  action  was  brought  by  plaintiff  as  as- 
signee of  the  Agricultural  Educational  So- 
ciety, a  foreign  corporation,  to  recover  the 
amount  agreed  to  be  paid  under  the  follow- 
ing contract:  "This  ordar  Is  not  valid  unless 
signed  by  the  majority  of  the  board.  To 
the  Agricultural  Educational  Society,  356 
Dearborn  St.,  Chicago,  111. — Gentlemen: 
Please  ship  prepaid,  freight  one  set  of  Coun- 
try Life  and  Agricultural  Education  to  Mr. 
Theo.  Kelnberger  at  Beaver  Dam,  county  of 
Dodge,  state  of  Wis.  for  School  District  No. 
8,  township  of  Calamus,  county  of  Dodge, 
state  of  Wis.,  fOr  which  we  agree  to  pay  forty- 
seven  dollars  and  fifty  cents  per  set,  making 
a  total  sum  of  forty-seven  and  so/ioo  dollars; 
the  same  to  be  paid  in  cash  or  legally  is- 
sued school  warrant  If  warrant  is  issued, 
to  be  paid  Oct  Jst,  1905.  The  Agricultural 
Educational  Society  hereby  guarantees  that 
the  goods  shall  be  In  good  condition  upon 
delivery,  or  purchaser  shall  not  be  obliged  to 
accept  the  same.  We,  the  undersigned,  in- 
dividually and  as  school  officers,  agree  to 
take  the  goods  from  the  freight  ofllce  on 
their  arrival  and  pay  for  the  same  as  above 
stated,  and  that,  no  verbal  agreement  shall 
In  any  way  change  this  order.  Dated  Aug. 
8th,  1905.  Post  office:  Columbus,  No.  2. 
Names:  Theo.  Kleuberger.  A.  Zarwell. 
John  Braker."  The  complaint  alleges  the 
making  of  the  contract  also  the  making  of 
the  school  order  to  tte  Agricultural  Educa* 
tlonal  Society  for  the  sum  of  ?47.50,  the  al- 
leged purchase  price,  and  that  said  order 
was  signed  by  the  clerk,  director,  and  treas- 
urer of  the  district  and  was  due  and  pay- 
able October  1,  19(^;  that  after  the  making 
and  delivery,  the  contract  together  with  the 
order  were  assigned  to  the  plaintiff,  and 
the  order  presented  for  payment  and  not 
paid;  that  plaintiff  also  demanded  of  the 
defendants  Individually  the  payment  of  the 
amount  due  on  contract,  and  that  there  is 
due  from  the  defendants  by  reason  of  the 
contract  ?47.50  with  Interest  from  October 
1,  1905;  that  plaintiff  elects  to  hold  the 
defendants  Individually  on  the  contract. 
The  case  was  first  tried  In  justice  court,  and 
upon  appeal  to  the  circuit  court  the  answer 
was  amended  so  as  to  set  up  a  general  de- 
nial, and  setting  up,  among  other  things, 
that  at  the  time  of  signing  the  order  the  de- 
fendants constituted  the  school  board  of 
district  No.  8t  town  of  Calamus,  Dodge 
county.  Wis.,  one  being  the  clerk,  another 
director,  and  the  third  treasurer,  and  that 
there  was  no  meeting  of  the  school  board 
held  for  the  purchase  of  any  books,  and 
that  the  order  in  question  was  not  signed  In 
the  presence  of  the  board  jointly,  nor  was 
the  same  ever  ratified  in  any  way  at  any 
meeting  of  the  board,  nor  was  the  order  ever 


•For  ether  cmm  im  sam*  topic  and  lecUon  NUMBER  In  Dec.  &  Am.  Digs.  1S07  to  date,  *  Reportar  laduw 


Digitized  by  VjOOQ  l€ 


Whu) 


STATB  BANK  T.  KIEKBBROBB. 


1133 


recognized  as  a  valid  order  against  the 
district,  and  that  the  defendants  as  Indi- 
viduals never  received  any  consideration  for 
signing  the  order,  and  that  the  same  was 
void  and  of  no  effect  Payment  was  de- 
manded before  action  brouKht. 

The  case  was  tried  by  the  court,  and  the 
following  findings  of  fact  and  conclusions 
of  law  made:  That  the  plaintiff  is  a  cor- 
poration duly  incorporated  and  existing  un- 
der the  laws  of  the  state  of  Wisconsin;  tliat 
the  defendants  at  and  prtftrto  the  time  of 
the  commencement  of  this  action  were  the 
officers  of  school  district  No.  8  in  the  town- 
ship of  Calamus,  Dodge  county.  Wis.;  that 
on  or  about  the  8th  day  of  August,  1906,  the 
defendants  Individually  and  as  such  school 
officers  entered  Into  an  agreement  in  writ- 
ing with  the  Agricultural  Bducational  Soci- 
ety, a  foreign  corporation,  for  the  purchase 
of  a  set  of  books  and  charts  designated  as 
"One  set  of  Country  Life  and  Agricultural 
Education,"  by  the  terms  of  which  ag^ree- 
ment  they  bound  themselves  individually 
and  as  such  school  officers  to  receive  said 
goods  on  arrival  and  pay  for  the  same  the 
sum  of  $47.50  either  in  cash  or  by  a  legally 
Issued  school  warrant  payable  October  1, 
1906;  that  at  the  same  time  the  defendants 
as  such  school  officers  duly  executed  to  said 
Agricultural  Ekiucational  Society  an  order  up- 
on the  treasurer  of  said  school  district  for 
the  payment  of  said  sum  of  $47.50,  and  de- 
livered the  same  to  said  society  pursuant 
to  the  terms  of  said  contract;  that  on  or 
about  the  14th  day  of  August  1005,  plaintiff 
for  value  became  and  now  Is  the  owner  >ot 
said  agreement  and  school  order;  and  that 
It  brlngrs  this  action  to  recover  from  the  de- 
fendants indlTidually  the  sum  of  $47.50  upon 
said  agreement  and,  as  conclusion  of  law, 
that  the  defendants  are  entitled  to  Judgment 
dismissing  said  action  with  costs. 

Judgment  was  rendered  for  the  defend- 
ants, from  which  this  appeal  was  taken. 

Kndlng  &  Kadlng,  for  appellant  Malone 
&  Miller,  for  respondents. 

KERWIN,  J.  (after  stating  the  facts  as 
above).  The  complaint  in  this  case  seems 
to  be  grounded  ui^on  the  right  to  recover  be- 
cause of  nonpayment  of  the  order  and  the 
right  on  the  part  of  the  plaintiff  to  elect  to 
bold  the  defendants  Individually  liable. 
There  is  no  allegation  in  the  complaint  that 
the  order  was  illegally  issued,  bnt  there  is 
an  allegation,  as  we  have  seen,  that  the  or- 
der was  made,  executed,  and  delivered  to 
the    Agricultural    Educational    Society    on 


John  Braker  as  treasurer  of  the  school  dis- 
trict In  the  sum  of  $47.50  for  value,  and 
signed  by  the  clerk,  director,  and  treasurer. 
It  is  quite  clear  from  the  contract  that  it 
was  necessary  for  plaintiff  to  show.  In  or- 
der to  recover,  that  the  order  issued  was  an 
illegal  order  or  illegally  issued,  because,  an 
order  having  been  issued  as  alleged  by  the 
proper  officers  of  the  school  district,  it  must 
be  presumed  to  be  a  legal  order  until  the 
contrary  is  shown.  But  the  theory  of  the 
defendants  seem  to  have  been  as  well  by 
the  allegations  of  their  answer  as  by  the 
proof  that  the  order  was  Illegally  issued, 
and  they  set  up  facts  In  their  answer  show- 
ing that  the  order  was  illegally  issued  and 
the  evidence  in  the  case  supports  these  alle- 
gations. The  answer  sets  forth,  as  before 
stated,  that  there  was  no  meeting  of  the 
school  board  held  for  the  purchase  of  any 
school  books,  and  that  said  order  was  not 
signed  in  the  presence  of  tbe  board  Jointly. 
The  evidence  sustains  these  allegations,  and 
shows  that  tbe  board  never  met  as  a  board 
and  never  voted  to  purchase  the  books  or 
execute  the  order,  bnt  It  appears  that  tbe 
order  was  signed  by  the  members  of  the 
board  Independently,  and  not  in  the  pres- 
ence of  each  other.  So  we  think  it  is  es- 
tablished conclusively,  not  only  by  the  alle- 
gations of  the  answer,  bnt  by  the  <  roof  that 
the  alleged  order  was  not  legally  issued; 
therefore  not  binding  upon  the  district.  Sec- 
tion 432,  St  1898,  provides  that  no  act  au- 
thorized to  t>e  done  by  tbe  school  board 
shall  be  valid  unless  voted  at  Its  meeting, 
and  section  436,  St  1898,  provides  that  pur- 
chases of  school  supplies  mast  be  approved 
at  a  regular  meeting  of  the  board  at  which 
all  members  are  present  The  evidence  es- 
tablishes conclusively  that  these  provisions 
of  the  statute  were  not  compiled  with; 
therefore  tbe  order  was  llle;;ally  Issued. 
This  being  so  tbe  plaintiff  bad  n  cause  of  ac- 
tion against  the  defendants,  individually  un- 
der the  contract,  which  provides  that  the 
set  of  "Country  Life  and  Agricultural  Edu- 
cation" mentioned  In  the  contract  must  be 
paid  for  In  cash  or  by  a  legally  Issued 
school  warrant  payable  October  1,  1905,  and, 
it  appearing  no  warrant  was  legally  Issued, 
the  defendants  became  Indiviilually  liable 
under  the  contract  It  follows,  therefore, 
that  upon  the  undisputed  facts  the  plaintiff 
is  entitled  to  recover. 

The  Judgment  of  tbe  court  below  is  re- 
versed, and  tbe  cause  remanded,  with  In- 
structions to  enter  Judgment  for  tbe  plain- 
tiff. 


Digitized  by 


Google 


1134 


122  NORTHWESTERN  BEPOBTER. 


(»ftnn- 


MEMORANDUM  DECISIONS. 


In  re  LANGLET'S  ESTATE.  (Supreme 
Court  of  Micbigan.  Oct.  4,  190».)  In  the  mat- 
ter of  the  estate  of  Thomas  Langley.  Motion 
to  extend  time  to  sue  out  writ  of  error.  Mo- 
tion denied.  Areued  before  GRANT,  MONT- 
GOMERY, OSTRANDER,  HOOKER,  and 
MOORE,  JJ.  Charles  Engelhard,  for  the  mo- 
tion. Whitehead  &  GaSU  and  Rockwell  &  Zim- 
mermann,   opposed, 

PER  CURIAM.  Judgment  was  rendered 
April  23,  1908.  Appellants  have  shown  no 
valid  excuse  for  the  delay.  The  case  is  ruled 
by  Bliss  v.  Tyler  &  Son  (Mich.)  121  N.  W.  756, 
and  Starkweather  v.  Thorington's  Estate  (Mich.) 
122  N.  W.  116.    Motion  denied,  with  costs. 


MONROE  T.  BUSHNBLL.  (Supreme  Court 
of  Michigan.  Oct.  4,  1900.)  Error  to  Circuit 
Court,  Kalamazoo  County;  John  W.  Adams, 
Judge.  Action  by  Stephen  B.  Monroe,  as  trus- 
tee, against  William  E.  Bushuell.  From  a  judg- 
ment against  defendant,  he  brings  error.  Re- 
versed, without  new  trial.  Argued  before  OS- 
TRANDER. HOOKER,  MOORE,  McALVAT, 
and  BROOKE,  JJ.  H.  Clair  Jackson  (W.  J. 
Candlish,  of  counsel),  for  appellant.  Jesse  R. 
Cropsey  and  Boudeman,  Adams  &  Weston,  for 
appellee. 

BROOKE,  J.  The  controverted  matter  in- 
volved in  this  case  is  the  same  as  that  involved 
in  the  chancery  case  between  the  same  parties, 
decided  in  this  court  September  21,  1909,  122 
N.  W.  508.  The  conclusions  reached  In  the 
chancery  cause  require  a  reversal  of  the  judg- 
ment herein.    There  will  be  no  new  trial. 


PRITCHETT  ▼.  DETROIT,  J.  ft  C.  RY.  CO. 
(Supreme  C!ourt  of  Michigan.  Sept.  21,  1909.) 
Certiorari  to  Circuit  Court,  Washtenaw  Coun- 
ty ;  Edward  D.  Kin&e,  Judge.  Action  by  Maude 
J.  F.  Pritchett,  administratrix,  against  the  De- 
troit, Jackson  ft  Chicago  Railway  Company.  A 
demurrer  to  the  declaration  was  overruled,  and 
defendant  brings  certiorari.  Affirmed.  Argued 
before  GRANT,  MONTGOMERY,  OSTRAN- 
DER, HOOKER,  and  MOORE,  JJ.  Corliss, 
Leete  ft  Joslyn  and  M.  J.  Cavanaugh,  for  ap- 
pellant.   John  P.  Kirk,  for  appellee. 

HOOKER,  J.  This  case  is  within  the  rule 
laid  down  in  the  recently  decided  case  of  Carbary 
r.  Detroit  United  Ry.,  122  N.  W.  367.  The  or- 
der overruling  defendant's  demurrer  is  affirmed. 


BliANCHARD  v.  C.  A.  SMITH  LUMBER 
CO.  (Supreme  Court  of  Minnesota.  July  23, 
1009.)  Appeal  from  District  Court,  Hennepin 
County;  Fred  V.  Brown,  Judge.  Action  by 
Jerome  A.  Blanchard  against  tbe  0.  A.  Smith 
Lumber  Company.  Judgment  for  plaintiff. 
From  an  order  denying  Its  motion  for  judgment 
notwithstanding  the  verdict  or  for  a  new  trial, 
defendant  appeals.  Affirmed.  Keith,  Evans, 
Thompson  ft  Fairchild,  for  appellant.  James  E. 
Markbam  and  Benjamin  Calmenson,  for  re- 
spondent. 

PER  CURIAM.  In  this  action  to  recover 
damages  for  personal  injuries  the  plaintiff  re- 
covered a  verdict  of  $1,000,  and  the  defendant 
appealed  from  an  order  denying  its  motion  for 
judgment  notwithstanding  the  verdict  or  for  a 
new  trial.  We  find  nothing  in  this  record  but 
questions  of  fact  and  the  application  thereto  of 
well-established  rules  of  law.  The  action  was 
brought  by  the  plaintiff  on  behalf  of  bia  minor 


son,  who  was  injured  while  operating  a  ripsaw 
for  the  appellant  in  its  box  factory.  He  was  a 
young  man  about  18  years  of  age,  but  had  had 
considerable  experience  in  this  line  of  work.  He 
had  operated  the  particular  saw  upon  which 
he  was  injured  for  about  two  hours  before  he 
was  injured.  While  engaged  in  pushing  a  piece 
of  wood  through  the  saw,  the  wood  was  in  aome 
manner  clinched  by  the  saw  and  carried  upward, 
so  that  the  operator's  hand  slipped  beneath  the 
wood  and  came  in  contact  with  the  saw.  The 
complaint  alleged  that  the  saw  upon  which  the 
young  man  was  injured  was  worn,  defective,  and 
unfit  for  use;  that  the  ends  of  the  jonmal  to 
which  the  saw  was  attached  were  worn,  an- 
even,  and  untrue;  that  the  boxes  in  which  the 
journal  rested  were  worn,  loose,  and  defective, 
so  that  it  was  loose,  shifty,  and.  wobbly  in  its 
bearings ;  that  the  saw  revolved  while  in  op- 
eration in  an  unsteady,  uneven  motion,  so  that 
the  lumber  that  was  being  fed  Into  it  was  liable 
at  any  time  to  be  caught  by  tlie  Irregular  mo- 
tion of  the  saw  and  thrown,  so  that  there  waa 
great  danger  that  the  hands  of  the  operator 
would  be  thrown  against  the  saw.  The  condi- 
tion of  the  saw,  the  contributory  negligence  of 
the  injured  man,  and  the  question  of  whether  he 
assumed  the  risks  Involved  in  the  work  were. 
upon  the  evidence  in  this  case,  all  questions  for 
the  jury.  An  extended  discussion  of  the  evi- 
dence would  be  useless.  We  have  examined  the 
record  very  carefully,  and  are  convinced  that  the 
order  of  the  trial  court  was  correct  Order  af- 
firmed. 


CHUTE  y,  DOWNS.  (Supreme  Court  of 
Minnesota.  July  23,  1909.)  Appeal  from  Dis- 
trict Court,  Dakota  County:  F.  M,  Crosby. 
Judge.  Action  by  Richard  B.  Chute  against 
J.  W.  Downs.  Judgment  for  defendant  From 
an  order  denying  a  new  trial,  plaintiff  appeals. 
AiErmed.  W.  H.  Gillitt,  for  appellant.  Hodg- 
son &  LK>well,  for  respondent, 

PER  CURIAM.  Plaintiff  brought  this  action 
to  recover  the  possession,  or  value,  of  certain 
lumber  and  slabs,  and  based  his  right  to  recov- 
ery upon  a  bill  of  sale  from  numerous  lumber- 
men owning  and  floating  logs  down  the  Mis- 
sissippi river  to  points  beyond  Hastings.  The 
bill  of  sale  covered  all  "stray  logs."  The  only 
evidence  offered  to  show  that  the  lumber  and 
slabs  found  in  defendant's  possession  came  froot 
the  logs  covered  by  the  bill  of  sale  was  that 
the  slabs  contained  log  marks  of  the  various  lum- 
bermen who  executed  the  same.  There  was  no 
evidence  whatever  that  the  logs  received  by 
defendant,  from  which  he  manufactured  the 
lumber  in  question,  were  "stray  logs."  For 
want  of  this  proof,  the  court  dismissed  the  ac- 
tion, when  the  plaintiff  rested,  directing  a  judg- 
ment in  defendant's  favor  for  a  return  of  the 
property,  which  had  been  taken  from  him  in 
the  claim  and  delivery  proceedings,  or  for  its 
value,  as  alleged  in  the  complaint  and  admit- 
ted in  the  answer,  viz.,  $1,000,  Plaintiff  moved 
for  a  new  trial,  and  appealed  .from  the  order 
denying  it.  The  order  must  be  affirmed.  The 
absence  of  evidence  showing  that  the  lumber 
sought  to  be  recovered  in  the  action  was  manu- 
factured by  defendant  from  "stray  logs"  picked 
up  in  the  Mississippi  river  was  fatal  to  plain- 
tiff's right  to  recover,  and  the  evidence  offer- 
ed was  insufficient  to  call  upon  defendant  to 
explain  from  whence  he  obtained  the  logs.  !%• 
case  would  be  entirely  different  if  the  action 
had  been  brought  by  the  lumbermen,  and  evi- 
dence of  their  lof  marks  on  tlie  slabs  in  de- 


Digitized  by  VjOOQ  l€ 


Minn.) 


kIBMOKANDUM  DECISIOjIiS. 


1135 


fendant'a  sawmill  Tarda  would  have  been  suffi- 
cient to  caat  upon  him  the  harden  ot  explaining 
his  poaaeaaion.  The  pleadings  admitted  the  valae 
of  the  property,  and  the  court  properly  ordered 
judnnent  for  its  return,  or  the  admitted  value. 
Order  affirmed. 
JAGOARD,  J.,  dissents. 


DAIXY  ▼.  AUXEB.  (Supreme  Court  of  Min- 
nesota. Jnly  9,  1900.)  Appeal  from  District 
Court,  Clay  County ;  L.  L.  Baxter,  Judge.  Ac- 
tion by  Lena  Dally  against  W.  B.  Auxer.  Ver- 
dict for  plaintiff.  From  an  order  denying  mo- 
tion for  judgment  notwithstanding  the  verdict 
or  a  new  trial,  defendant  appeals.  Affirmed. 
Robert  M.  Pollock,  Geo.  E.  Perley,  and  Geo.  S. 
Grimes,  for  appellant.  Nye  &  Dosland,  for  re- 
spondent. 

PER  CURIAM.  This  record  raises  no  ques- 
tions which  require  extended  consideration  by 
this  court.  The  respondent  was  injured  while 
in  the  employ  of  the  defendant,  working  in  and 
about  a  mangle.  In  an  action  for  damages  she 
recovered  a  verdict  for  $1,500,  and  the  appeal  is 
from  an  order  denying  the  defendant's  motion 
for  judgment  notwithstanding  the  verdict  or  for 
a  new  trial.  The  record  contains  no  prejudicial 
error.  The  case  is  affirmed  upon  the  authority 
of  Cody  v.  Longyear,  laS  Minn.  116,  114  N.  W. 
735,  Dizonno  v.  Great  Northern  Ry.  Co.,  103 
Minn.  123,  114  N.  W.  736,  Lohman  v.  Swift 
Co.,  105  Minn.  148,  117  M.  W.  418,  and  Doerr 


V.  Daily  News  Publishing  Co.,  97  Minn.  24S, 
106  N.  W.  1044.     Order  affirmed. 


ROSS  T.  C.  B.  EMERSON  &  CO.  et  al.  (Su- 
preme Court  of  Minnesota.  July  9,  1909.)  Ap- 
peal from  Municipal  Court  of  St.  Paul;  Hugo 
Hanft,  Judge.  Action  by  David  Ross  against 
C.  E.  Emerson  &  Co.  and  others.  From  a  judg- 
ment affirming  a  judgment  of  the  justice  court 
defendants  appeal.  Affirmed.  Lloyd  Peabody, 
for  appellants.  H.  A.  Abemethy,  for  respond- 
ent 

PER  CURIAM.  This  action  was  brought  in 
the  justice  court  to  recover  damages  alleged 
to  have  been  caused  by  the  negligence  of  a  serv- 
ant of  the  defendant  in  so  driving  a  wagon  as 
to  cause  a  collision.  After  a  trial  ju^ment 
was  awarded  in  favor  of  the  plaintiff  for  ^13.50 
damages.  From  this  judgment  the  defendant  ap- 
pealed to  the  municipal  court  of  the  city  of 
St.  Paul  on  a  question  of  law.  The  evidence 
taken  before  the  justice  was  returned,  and  after 
a  hearing  the  municipal  court  made  findings 
and  ordered  judgment  affirming  the  judgment  of 
the  justice  court.  This  appeal  is  from  the  judg- 
ment entered  thereon.  The  appellant  now  con- 
tends that  the  defendant  was  entitled  to  judgment 
on  the  evidence  returned  from  the  justice  court, 
and  that  there  was  no  evidence  whatever  tend- 
ing to  show  that  the  plaintiff  was  damaged  in 
any  sum.  We  have  examined  the  record,  and 
determined  both  questions  adversely  to  the  ap- 
pellant.    Order  affirmed. 


Bkd  or  Cases  in  Vol.  122. 


Digitized  by 


Google 


Digitized  by  LjOOQIC 


INDEX-DIGEST. 


ABANDONMENT. 

Of  homestead,  see  Homestead.  §  154. 
Of  rights  acquired  in  exercise  of  power  of  emi- 
nent domain,  see  Eminent  Domain,  §  323. 

ABATEMENT. 

Of  nuisance,  see  Intoxicating  Liqaors,  f§  263- 
280. 

ABATEMENT  AND  REVIVAL 

Klection  of  remedy,  see  Election  of  Remedies. 

Judgment  as  bar  to  another  action,  see  Judg- 
ment, §S  5&1-O90. 

Revival  of  judgment,  see  Judgment,  §  866. 

Right  of  action  by  or  against  personal  repre- 
sentative, see  Executors  and  Administrators, 
S§  437-^50. 

Substitution  of  parties,  see  Parties,  §§  40-52. 

m.  DEFECTS  AMB  OBJECTIONS  AS 
TO  PARTIES  AND  FBOCEEDINOS. 

S  27.  Under  St.  1898,  !  2610,  if  a  contract 
for  the  sale  to  defendant  of  an  automobile  for 
which  plaintiff  ttrought  replevin  was  made  joint- 
ly with  plaintiff  ana  another,  so  that  such  oth- 
er was  a  necessary  party  to  the  action,  the 
court  should  have  ordered  him  brought  in  and 
sliould  not  have  abated  the  action. — Swenson  v. 
Wells  (Wis.)  724. 

V.   DEATH  OF  PARTT  AND  BEVTVAIi 
OF  ACTION. 

(A)  Abatement   or   SarTlval   of  Aetlon. 

{  68.  Either  the  serving  of  an  injunction 
upon  testator  in  a  creditors'  suit,  or  the  appoint- 
ment of  a  receiver  for  his  property  before  his 
death,  held  to  create  a  lien  on  his  estate,  so 
that  the  suit  did  not  abate  upon  his  death. — 
Saginaw  County  Savings  Bank  v.  Duffield 
(Mich.)  186. 

ABSTRACTS. 

Of  record  on  appeal  or  writ  of  error,  see  Crim- 
inal Law,  §  1103. 

ABUTTING  OWNERS. 

Assessments  for  expenses  of  public  improve- 
ments, see  Municipal  CJorporations,  §§  407- 
514. 

Compensation  for  taking  of  or  injury  to  lands 
or  easements  for  public  use,  see  Eminent 
Domain,  SS  69-141,  273,  275. 

Rights  in  streets  in  cities,  see  Municipal  Cor- 
porations, gi  703-706. 

ACCEPTANCE. 

Of  franchise,  see  Franchises,  S  2. 

Of  goods  sold  in  general,  see  Sales,  |§  161-182. 

Of  offer  or  proposal,  see  Contracts,  $|  22,  26. 

ACCIDENT. 

Cause  of  death,  see  Death. 


ACCIDENT  INSURANCE. 

See  Insurance,  H  146,  339,  460,  461,  665. 

ACCOMPLICES. 

Prisoner  aided  in  escape  as  accomplice  of  per- 
son aiding,  see  Escape,  |  7. 
Testimony,  see  Criminal  Law,  {  507. 

ACCORD  AND  SATISFACTION. 

See  Compromise  and  Settlement ;   Release. 

ACCOUNT. 

Best  and  secondary  evidence  of,  see  Criminal 
Law,  §  400. 

Accounting  by  particular  clattei  of  periont. 
See  Executors  and  Administrators,  §§  501,  500. 
Guardian  of  insane  person,  see  Insane  Persons, 

i  42. 
Partners,  see  Partnership,  §  324. 

II.  FBOCEEDINOS  AND  BEI.IEF. 

f  12.  A  bill  to  quiet  title  to  real  estate  and 
to  require  defendant  to  account  for  personal 
property  belonging  to  a  decedents'  estate  held 
not  to  state  a  cause  of  action  in  equity. — ^Moody 
v.  Macomber  (Mich.)  517. 

ACCOUNT  BOOKS. 

Documentary  evidence,  see  Evidence,  i  354. 

ACKNOWLEDGMENT. 

Operation  and  effect  of  admissions  as  evidence, 

see  Evidence,  |§  213-242. 
Operation  and  effect  of  admissions  as  ground  of 

estoppel,  see  Estoppel,  §§  63-93. 
Presumption  as  to  delivery  of  deed  at  date  of 

acknowledgement,  see  Deeds,  i  194. 

'l.  NATTTBE  AND  NECESSITY. 

g  4.  A  deed  is  valid  between  the  parties, 
though  not  acknowledged. — Wilson  t.  Wilson 
(Xeb.)  850. 

ACTION. 

Abatement,  see  Abatement  and  Revival. 

Bar  by  former  adjudication,  see  Judgment,  fi 
564-590. 

Election  of  remedy,  see  Election  of  Remedies. 

Jurisdiction  of  courts,  see  Courts. 

Limitation  by  statute,  see  Limitation  of  Ac- 
tions. 

Malicious  actions,  see  Malicious  Prosecution. 

AcHons  between  parties  in  particular  relaiiont. 

See  Master  and  Servant,  §§  80,  264-296 :   Part- 
nership, g  321 ;   Principal  and  Agent,  g  79. 
Co-tenants,  see  Partition,  $  113. 


For  cases  tn  Dec.  Dig.  &  Amer.  Digs.  1907  to  date  &  Indexes  see  same  topic  ft  section  ({)  NUMBER 
122  N.W.-72  (1137) 


Digitized  by  LjOOQIC 


1138 


122  NORTHWESTERN  REPORTER. 


Jetton*  ty  or  ogaintt  particular  cUuiet  of 
perfont. 

See  Broken,  §|  82,  86;    Carriers,  H  81-172, 

280-320;     Corporations,    gg    613,    668,   670; 

.  Executors   and   Administrators,   {§   437-450: 

Insane  Persons,   |§   92-100;    Physicians  and 

Surgeons,  g  18 ;    Street  Railroads,  gg  114, 117. 

Assignee  for  benefit  of  creditors,  see  Assign- 
ments for  Benefit  of  Creditors,  g  27& 

Bank  depositors,  see  Banks  and  Banking,  g  154. 

Contractors  and  sureties  against  municipality, 
see  Municipal  Con>orat!ons,  !  374. 

Corporate  omcers,  see  Corporations,  gg  338-361. 

Foreign  corporation,  see  Corporations,  gg  6ti8, 
670. 

Payee  «f  certified  check,  see  Banks  and  Bank- 
ing, i  155. 

Remaindermen,  see  Remaindars,  g  17. 

School  officers,  see  Schools  and  School  Dis- 
tricts, g  62. 

Taxpayers,  see  Municipal  Corporations,  gg  990, 
1000. 

Trustee  in  bankruptcy,  see  Bankraptcy,  gg  278, 
303. 

Particular  oautei  or  groundi  of  action. 

See  Assault  and  Battery,  g  42;  Bills  and 
Notes,  gg  443-B37 ;  Conspiracy,  g  21 ;  Death, 
IS  7-30;  Forcible  Entry  and  Detainer,  g  30; 
Fraud,  gg  4»-«5 ;  Insurance,  gg  627-668,  805, 
819 ;  Judgment,  g  921:  Ubel  and  Slander,  gg 
98-123;  Malicious  Prosecution,  gg  55-72; 
Negligence,  gg  134-139;  Subscriptions,  g  21; 
Tkization,  gg  576,  684;  Trover  and  Conver- 
sion, g  66 ;  Use  and  Occupation ;  Work  and 
Labor. 

Alienation  of  affections,  see  Husband  and  Wife, 
gg  330-334. 

Bank  deposit,  see  Banks  and  Banking,  g  154. 

Bonds  of  depositaries,  see  Depositaries,  g  14. 

Bonds  on  appeal,  see  Appeal  and  Error,  *  1244. 

Breach  of  contract,  see  Contracts,  gg  340-363; 
'Sales,  gg  869.  371,  418;  Vendor  and  Pur^ 
chaser,  gg  3^  343,  360. 

Breach  of  warranty,  see  Sales,  gg  427-446. 

Civil  damages  for  sale  of  liquors,  see  Intoxica- 
ting Liquors,  gg  310-316. 

Compensation  of  broker,  see  Brokers,  gg  82,  86. 

Disputed  claims  against  estate  of  decedent,  see 
Executors  and  Administrators,  g  264. 

Injuries  caused  by  electricity,  see  Electricity, 
gl9. 

Injuries  from  defects  or  obstructions  in  bridge, 
see  Bridges,  §  46. 

Injuries  from  defects  or  obstructions  in  high- 
way, see  Highways,  g  208. 

Injuries  from  defects  or  obstructions  in  street, 
see  Municipal  Corporations,  gg  812-821. 

Injuries  from  negligent  use  of  street,  see  Muni- 
cipal Corporations,  g  706. 

Injuries  from  operation  of  railroad,  see  Rail- 
roads, g  282. 

Injuries  from  operation  of  street  railroad,  see 
Street  Railroads,  gg  114,  117. 

Injuries  from  sale  of  liquor,  see  Intoxicating 
Liquors,  gg  310-316. 

Injuries  to  passenger,  see  Carrien,  gg  316-320. 

Injuries  to  persons  on  or  near  railroad  tracks, 
see  Railroads,  g  383. 

Injuries  to  servant,  see  Master  and  Servant, 
gg  264-296. 

Loss  of  or  injury  to  shipment,  see  Oarriera,  gg 
133,  135. 

Negligence  or  malpractice  of  physician  or  sur- 
geon, see  Physicians  and  Surgeons,  g  18. 

Negligent  transmission  of  telegram,  see  Tele- 
graphs and  Telephones,  (g  67,  70. 

Price  of  goods,  see  Sales,  f  g  347-363. 

Recovery  of  price  paid  for  goods,  see  Sales,  g 
397. 

Recovery  of  tax  paid,  see  Taxation,  g  542. 

Rent,  see  Landlord  and  Tenant,  g  219. 

School  district  order,  see  Schools  and  School 
Districts,  |  62. 

Services,  see  Master  and  Servant,  g  80;  Work 
and  Labor. 


Taking  of  or  injury  to  property  in  exercise  of 
power  of  eminent  domain,  see  Eminent  Do- 
main, gg  273,  275. 

Unpaid  taxes,  see  Taxation,  g  584. 

Wages,  see  Master  and  Servant,  g  80. 

Wrongful  acts  of  agent,  see  Principal  »ni 
Agent,  g  79. 

Wrongful  attachment,  see  Attachment,  gg  374, 
380. 

Wrongful  flowage  of  lands,  see  Waten  and 
Water  Courses,  §  179. 

Particular    form*   of  action. 
See  SSjectment ;   Replevin ;  Trover  and  Oonver- 
sion. 

PorMctilor  form*  of  tpedal  relief. 

See  Account-  Creditors'  Suit;  Divorce;  In- 
junction; Partition,  g  113;  Quieting  Title; 
Specific  Performance. 

Alimony,  see  Divorce,  gg  210,  222. 

Cancellation  of  written  instrument,  see  Can- 
cellation of  Instruments. 

Confirmation  of  tax  title,  see  Taxation,  fg  79&- 
800. 

Determination  of  adverse  claims  to  real  prop- 
erty, see  Quieting  Title. 

Dissolution  of  corporation,  see  Corporations,. 
gg  615-62L 

Einiorcement  or  forclosnre  of  lien,  see  Me- 
chanics' Liens,  gg  277,  291. 

Establishment  and  enforcement  of  charity,  see- 
Charities,  gg  39-48. 

Establishment  of  boundaries,  see  Boundaries, 
g  35. 

Establishment  of  will,  see  Wills,  gg  219-432. 

Foreclosure  of  mortgage,  see  Mortgages,  gg  460- 
653. 

Recovery  of  property  retaken  after  exchange  for 
other  property,  see  Exchange  of  Property,  f 
13. 

Removal  of  cloud  on  title,  see  Quieting  Title. 

Setting  aside  fraudulent  conveyance,  see  Fraad- 
ulent  Conveyances,  gg  239-301. 

Setting  aside  will,  see  Wills,  gg  219-432. 

Trial  of  tax  title,  see  Taxation,  gg  79&-S0e. 

Particular  proceeding*  in  action*. 

See  Continuance ;  Costs ;  Damages ;  Dismissal 
and  Nonsuit ;  Evidence ;  Execution ;  Judg- 
ment; Jury;  Limitation  of  Actions;  Par^ 
ties ;  Pleading ;  Process ;  Reference ;  Re- 
moval of  Causes;   Trial. 

Default,  see  Judgment,  g  162. 

Revival  of  judgment,  see  Judgment,  |  866. 

Verdict,  see  Trial,  gg  329-362. 

Particular  remedie*  in  or  incident  to  action*. 
See  Attachment ;  Discovery ;  Garnishment ;  In- 
junction;    Receivera;    Tender;    Set-Olf  and 
Counterclaim. 

Proceeiir^g*  in  esereite  of  apeoial  or  limited 
}iiri*diotion*. 
Criminal  prosecutions,  see  Criminal  Law. 
Suits  in  equity,  see  Equity. 
Suits   in  justices'   courts,  see   Justices  of  the 

Peace,  g  107. 

Review  of  proceeding*. 
See   Appeal  and   Error ;    Certiorari ;    Equity,  ' 
gg   442,  447;    Exceptions,   Bill  of;    Justices 
of  the  Peace.  |g  140-206 ;    New  Trial. 

I.  GROUNDS  AXD  OOHDITIOirS  FBE- 
OEDEKT. 

g  1.    "Cause   of  action"  defined.— Jerome   r. 
Rust  (S.  D.)  344. 

II.  HATTTBE  AMD  FOBM. 

Misstatement  in  opinion  as  to  nature  of  actioA 
as  grounds  for  rehearing,  see  Appeal  and  Er- 
ror,  g  832. 

Of  action  to  collect  unpaid  taxes,  see  Taxation, 
g  584. 


Top'.CB,  dlvUlona,  &  aection  (i)  NUMBERS  In  this  Index,  *  Dec.  *  Amsr.  Digs.  *  Reportar  Indexss  agras 

Digitized  by  VjOOQ  l€ 


INDBX-DIGEST. 


1139 


Of  action  to  enforce  agreement  to  assume  mort- 
gage debt,  see  Mortgages,  g  292. 

8  25.  An  action  on  a  note  by  the  payee 
against  the  maker  and  sureties  held  an  action 
at  law,  rendering  it  proper  to  refuse  to  trans- 
fer it  to  the  equity  calendar. — Security  Sav. 
Bank  of  WeUmau  y.  Smith  (Iowa)  825. 

S  27.  A  bonding  company,  securing  perform- 
ance of  a  contract  to  grade  a  block  and  deposit 
the  dirt  on  another  iHock,  which  appropriated 
the  dirt  to  its  own  use,  held  liable  in  tort  for 
the  damages  resulting. — Michaud  v,  Erickson 
(Minn.)  324. 

!  35.  Where  a  new  remedy  is  provided  by 
statute  for  an  existing  right,  and  it  neither  de- 
nies an  existing  remedy  nor  is  incompatible  with 
It,  the  new  remedy  is  cumulative.— State  v. 
Cosgrave  (Neb.)  885. 

m.  JOIlfBER,  gPMTTIWQ.  G0H80X.I- 
DATIOH.  AlTD   SETERAKGE. 

I  S8.  A  complaint,  on  an  appeal  and  super- 
sedeas bond  by  the  judgment  creditor  and  his 
assignees  of  the  original  judgment,  the  judg- 
ment for  costs  not  having  been  assigned,  held 
not  demorrable  for  misjoinder  of  cause  of  ac- 
tion.—Jerome  y.  Rust  (S.  D.)  344. 

i  38.  A  complaint  against  a  dissolved  cor- 
poration and  its  officers  by  a  stockholder  and 
creditor  held  to  state  but  a  single  cause  of  ac- 
tion.—Seering  V.  Black  (Wis.)  1055. 

S  40.  To  meet  the  exigency  of  varying  testi- 
mony a  count  for  damages  under  the  survival 
act  (Comp.  Laws,  i  10,117)  and  one  under  the 
death  act  (Comp.  Laws,  J  10.427)  can  be  joined 
in  the  same  action,  though  the  rule  of  damage 
would  not  be  the  same  in  both  cases. — Car- 
bary  y.  Detroit  United  Ry.  (Mich.)  367. 

S  40.  Rights  of  action  under  the  survival 
act  (Comp.  Laws,  i  10,117)  and  the  death  act 
(Comp.  Laws,  {  10,427)  are  assets  of  the  estate 
vested  in  the  administrator,  and  the  acts  do 
not  give  a  double  cause  of  action;  the  ex- 
istence of  one  being  entirely  inconsistent  with 
the  existence  of  the  other. — Carbary  y.  Detroit 
United  Ry.  (Mich.)  367. 

i  42.  That  damages  recovered  under  the  sur- 
vival act  (Comp.  Laws,  g  10,117),  and  death 
act  (Comp.  Laws,  §  10,427),  would  be  dis- 
tributed differently  held  not  to  preclude  joinder 
•  of  causes  under  each  act  in  one  action ;  the 
probate  court  having  jurisdiction  to  compel 
proper  application  of  damages  recovered.— Car- 
bary V.  Detroit  United  Ry.  (Mich.)  367. 

{  48.  Under  Kev.  Laws  1905,  {  4154,  sev- 
eral causes  of  action  arising  out  of  the  same 
transaction  may  Ije  joined. — Pleins  v.  Wach- 
enhetmer  (Mimi.)  166. 

f  50.  The  statutory  action  created  to  enable 
one  aggrieved  by  an  order  of  the  Railroad  Com- 
mission by  action  against  the  Commission  to 
challenge  the  validity  of  its  order  may  not  be 
joined  with  another  action  against  a  third  per^ 
son  to  prevent  the  latter  from  comi>lying  with 
the  order  of  the  Commission,  notwithstanding 
St  1898,  I  2647.— City  of  Superior  y.  Douglas 
County  Telephone  Co.   (Wis.)   1028. 

XV.   OOBOfElTCXaCENT,  PBOSEOUnOH, 
AND  TEBUIKATION. 

8  66.  Under  the  express  provisions  of  Code 
Civ.  Proc.  8  901,  if  a  case  in  which  an  action 
to  enforce  or  protect  a  right  or  redress  or  pre- 
vent a  wrong  cannot  be  had  under  the  Code, 
the  practice  theretofore  in  use  may  be  adopted 
so  far  as  to  prevent  a  failure  of  justice.- Engles 
y.  Morgenstem  (Neb.)  688. 

ADDRESS. 

Of  notice  «f  appeal,  see  Appeal  and  Error,  8 
417. 


ADEQUATE  REMEDY  AT  LAW. 

Effect   on   jurisdiction    of   equity,    see   Equity, 

88  43-4& 
E^ect  on  right  to  mandamus,  see  Mandamus, 

8  3. 

ADJOIN[NG  LANDOWNERS. 

See  Boundaries. 

ADJOURNMENT. 

In  justice's  court,  see  Justices  of  the  Peace,  | 

ADJUDICATION. 

Of  courts  in  general,  see  Courts,  88  89-116. 
Operation  and  effect  of  former  adjudication,  see 
Judgment,  88  564-680,  658-748. 

ADJUSTMENT. 

Of  loss  within  insurance  policy,  see  Insniance, 
88  570-574. 

ADMEASUREMENT. 

Of  dower,  see  Dower,  8  66. 

ADMINISTRATION. 

Of  charity,  see  Charities,  88  89-48i 

Of  ^tate  assigned  for  benefit  of  creditors,  aee 
Assignments  for  Benefit  of  Creditors,  I  278. 

Of  estate  of  decedent,  see  Executors  and  Ad- 
ministrators. 

ADMISSIONS. 

As  evidence  in  civil  actions,  see  Evidence,  88 

213-242. 
Of  insanity,  see  Insane  Persons,  8  2. 

ADULTERATION. 

Certificate  of  dairy  and  food  commissioner  as 
to  analysis  of  milk  as  ground  for  probable 
cause  for  prosecution  for  adulteration,  see 
Malicious  Prosecution,  8  18. 

ADVANCEMENTS. 

See  Descent  and  Distribution,  8  106^. 

ADVERSE  CLAIM. 

To  real  property,  see  Quieting  Title. 

ADVERSE  POSSESSION. 

See  Limitation  of  Actions. 

As  evidence  of  boundary,  see  Boundaries,  8  SB- 

I.  HATXTRE  AMB   REQUISITES. 

(B)  Dnratlon    and    Contlmaltr    of    Foaaea- 
■ion. 

By  mortgagee,  see  Mortgages,  §  143. 

8  47.  Entry  into  actual  possession  of  land 
by  holder  of  legal  title  before  limitations  have 
run  arrests  running  of  statute.— Kipp  y.  Hagan 
(Minn.)  317. 

8  47.  Actual  or  constructive  possession  of 
land  under  a  tax  deed  for  three  years  after 
recording  the  deed  held  necessary  to  bar  re- 
covery by  the  former  owners  by  limitation. — 
Katban  v.  Comstock  (Wis.)  1044. 

m.  PXiEADHrO,  EVIPEITOE.  TBIAIi, 
AMD  REVIEW. 

8  116.  In  ejectment,  where  defense  was  ad- 
verse  possession,   evidence   held  insufScient  to 


For  «•••■  la  Dtc.  Dig.  *  Amar.  Dig*.  1907  to  date  A  IndezM  le*  sama  tople  A  section  (i)  NUMBBR 

Digitized  by  VjOOQ  l€ 


1140 


122  NOBTHWBSTBRN  REPORTER. 


take  tfie  question  to  the  J1117.— Kipp  ▼.  Bagan 
(Minn.)  317. 

AFFIDAVITS. 

Particular  proceedingt   or  pvrpote*. 
Proof  of  service  of  notice  to  redeem  from  tax 

sale,  see  Taxation,  f  707. 
Verificaticm  of  pleading,  see  Pleading,  8  201. 
Verification  of  proof  of  serrice  of  notice,  see 

Notice,  i  10. 

AGENCY. 

See  Principal  and  Agent 

AGGRAVATION. 

Of  damages,  see  Damages,  J  62, 


AGREEMENT. 


See  Contracts. 

ALIENATION. 

Of  affections,  see  Husband  and  Wife,  SI  330- 
334. 

ALIENS. 

Removal  of  suits  hj  or  against  aliens  to  United 
States  court,  see  Removal  of  Causes,  (  43. 

ALIMONY. 

See  Divorce,  fS  210,  222. 

ALLOWANCE. 

To  surviving  wife,  husl>and,  or  children  of  dece- 
dent, see  Executors  and  Administrators.  I! 
176-186. 

ALTERATION  OF  INSTRUMENTS. 

Effect  of  unauthorized  change  by  agent,  see 
Principal  and  Agent,  }  150. 

{  2.  Conductor's  reports  of  train  movements 
held  not  mutilated,  so  as  to  make  their  admis- 
sion in  evidence  improper.— Minnesota  &  Dako- 
ta Cattle  Co.  v.  Chicago  &  N.  W.  Ry.  Co. 
(Minn.)  493. 

I  11.  Change  In  a  written  contract  by  a 
stranger  thereto  held  not  alteration,  but  a  spoli- 
ation, not  avoiding  it. — Spreng  y.  Juni  (Mmn.) 
1015. 

i  27.  In  the  absence  of  contrary  evidence,  an 
erasure  in  a  deed  is  presumed  to  Iiave  been 
made  prior  to  or  contemporaneous  with  its  ex- 
ecution, especially  where  it  is  the  deed  of  a 
public  officer.— Northwestern  Mortg.  Trust  Co. 
V.  lievtzow  (S.  D.)  600. 

AMENDMENT. 

Adequacy  of  remedy  by  amendment  of  pro- 
ceedings in  trial  court  as  affecting  right  to 
certiorari,  see  Certiorari,  $  4. 

In  particular  remediet  or  tpeoial  jurigdictioni. 
See  Parties,  {  95. 

Of  particular  acts,  in»trument$,  or  proceeding$. 

See  Judgment,  {  303;    Statutes,  S  139. 

Court  records,  see  Courts,  §  116. 

Mechanic's  lien  statement,  see  Mechanics' 
Liens,  {  158. 

Pleading,  see  Pleading,  |  248. 

Pleading  in  action  for  libel,  see  Libel  and  Slan- 
der, 8  98. 

Record  on  appeal  or  writ  of  error,  see  Appeal 
and  Error.  JS§  635-055. 

Special  findings,  see  Trial,  J  3C2. 


ANIMALS. 

Frightening  animals  on  street,  see  Municipal 
Corporations,  H  705,  706. 

Injuries  from  operation  of  railroads,  see  Rail- 
roads, g  412. 

Inspection  laws  as  interfering  with  interstate 
commerce,  see  Commerce,  8  50. 

Liability  of  street  railroad  company  for  fright- 
ening animals,  see  Street  Railroads,  {  99. 

Negligence  of  railroad  company  bringing  glan- 
dered  horse  into  state  as  proximate  cause  of 
injury  to  subsequent  purchaser,  see  NegU- 
gence,  $  56. 

i  25.  A  finding  as  to  increase  of  a  flock  of 
sheep  held  not  against  the  clear  preponderance 
of  evidence,  so  as  to  be  subject  to  review.— 
Neiley  y.  Roberts  (S.  D.)  635. 

f  50.  Rev.  Codes  1905,  |  1939,  prescribing 
the  requirements  of  a  corral  fence  exclnsirely 
for  the  purpose  of  inclosing  stacks,  held  ap- 
plicable during  the  "open  season"  to  those 
counties  in  which  section  1933,  permitting  live 
stock  to  run  at  large  during  a  certain  part 
of  the  year,  has  not  t>een  abrogated  by  an 
election.— Johnson  y.  Ricktord  (N.  D.)  386. 

i  50.  A  fence  sufficient  to  ezclnde  ranging 
live  stock  in  those  counties  in  wUdi  Rev.  Codes 

1905,  section  1933,  is  operative,  must  comply 
with  section  1939,  or  present  a  barrier  as  ef- 
fective as  that  deBcril>ed  in  that  section.— 
Johnson  y.  Rickford  (N.  D.)  386. 

8  92.  To  support  an  action  for  damage  done 
by  ranging  animals  under  Rey.  Codes  1905. 
I  1940,  where  done  during  the  "open  season," 
a  property^  owner  must  sliow  a  fence  deemed 
sufficient  in  law  to  exclude  trespassing  ani- 
mals.—Johnson  y.  Rickford  (N.  D.)  386. 

8  92.  In  a  county  In  which  Rev.  Codes  1905, 
8  1933,  is  operative,  an  action  may  be  main- 
tained against  the  owner  of  ranging  ani- 
mals under  section  1940  only  upon  the  showing 
of  a  strong  fence  against  the  intrusion  of  lire 
stock.— Johnson  v.  Rickford  (N.  D.)   386. 

ANNULMENT. 

Of  will,  see  Wills,  88  219-432. 

APPEAL  AND  ERROR. 

See  Certiorari;  Exceptions,  Bill  of;  New  Trial.* 
Costs,  see  Costs,  §8  228-258. 
Necessity   of   statement   of   reasons  for  appeal 
from  probate  court,  see  Courts,  8  202. 

Review  in  tpecial  proceedingt. 

See  Partition,  {  113. 

Accounting  by  executor  or  administrator,  aee 
Executors  and  Administrators,  8  509. 

Assessment  of  cost  of  drain,  see  Drains,'  8  82. 

Condemnation  proceedings,  see  Eminent  Do- 
main, §8  262,  263. 

For  removal  of  officers,  see  Officers,   g  72. 

Probate  proceedings,  see  Wills,  88  384,  386. 

Revieu)  of  criminal  proteoittiont. 
See  Criminal  Law,   gj  1018-1186;    Homicide, 
8  338. 

Review  of  proceedingt  of  jutticet  of  the  peac«. 
See  Justices  of  the  Peace,  88  140-173. 

I.  NATURE  AND  FORM  OF  nJSMSDY. 

i  9.  An  appeal  lies  from  a  judgment,  though 
there  has  been  no  motion  for  new  trial. — ^Drins 
y.  St.  Lawrence  Tp.  (S.  D.)  664. 

m.  DECISIONS  REVIEWABI.E. 

(D)  FlnalltT  of  DetermlnatloiiL. 

8  69.  A  judgment  awarding  a  partition  and 
apportionment  held  not  a  final  order  or  jndg- 


Toptca,  divisions,  *  section  (i)  NUMBERS  In  this  Index,  *  Deo.  *  Amer.  Diss.  *  Raiwrter  Indexes  sctm 

Digitized  by  VjOOQ  l€ 


INDBX-DIGEST. 


lUl 


ment   from   which    an   appeal    lies.— Vrana   t. 
Vrana  (Neb.)  678. 

ZV.  RIGHT  OF  REVIEW. 

(A)  Peraona  BmtlUed. 

I  WO.  If  one  who,  as  a  party  interested  in 
the  realty  in  question,  though  not  a  party 
to  the  suit,  is  entitled  to  appeal  under  Pub. 
Acts  1907,  p.  497,  No.  340,  he  must  show  that 
his  title  was  not  acquired  pendente  lite,  oi 
that  he  had  a  title  independent  from  that  of 
the  parties  to  the  litigation. — Chapoton  v.  Pren- 
tis  (Mich.)  374 ;    Lightoer  t.  Same,  Id. 

V.  PRESEHTATIOir    AND    RESERVA- 
TION IN  I.OWER  COITRT   OF 
GROUNDS   OF   REVIEW. 


IiOfrer  Court. 


(A)  laanea  and  4 

§  173.  Where,  in  an  action  for  services  as 
housekeeper,  the  defense  of  limitations  was  not 
raised  below,  it  could  not  be  raised  on  appeal.— 
Conger  v.  Hall  (Mich.)  1073. 

(B)  Objeotiona  and  Motioaa,  and  Rallna;a 

Thereon. 

§  212.  Under  Rev.  Civ.  Code,  t  2415,  defend- 
ant cannot  object  to  the  direction  of  a  verdict 
for  plaintiff  after  the  introduction  of  additional 
evidence  without  renewing  the  motion  therefore, 
where  he  did  not  object  at  the  time.— Dring  v. 
St.  Lawrence  Tp.  (S.  D.)  664. 

S  216.  Omission  of  necessary  qualification 
in  a  statement  of  law  in  an  instruction  held 
not  necessarily  reversible  error. — Creasy  v.  Re- 
public GreoBOting  Co.  (Minn.)  484. 

{  215.  Instruction  in  an  action  for  injury  to 
an  engineer  held  not  ground  for  a  reversal, 
where  the  court's  attention  was  not  called  to 
inaccuracy  of  the  language  used. — Koreis  v. 
Minneapolis  &  St.  L.  R.  Co.  (Minn.)  668. 

f  216.    Objections  to  instructions  relating  to 

matters   of  omission   will   not   be   reviewed  in 

the   absence   of   supplying   requests. — O'Neil  v. 
Adams  (Iowa)  976. 

{  216.  When  the  proposition  of  law  omitted 
from  the  charge  is  essential  to  the  submission 
of  the  theory  of  either  party,  error  may  be  as- 
signed to  the  charge  under  the  statute,  thoueb 
the  attention  of  the  court  was  not  specifically 
called  to  the  matter.— Rouse  v.  Michigan  United 
Rys.  Co.  (Mich.)  532. 

i  216.  A  party  failing  to  reqnest  or  ten- 
der more  specific  instructions  cannot  assign 
the  indefiniteness  of  the  court's  instructions  as 
error.— McClatchey  ▼.  Anderson  (Neb.)  67. 

\  231.  A  charge  as  to  which  no  error  is 
pointed  out  will  not  be  considered  on  a  writ  of 
error.— Clement  v.   Crosby  &  Co.   (Mich.)  263. 

f  231.  An  objection  to  a  hypothetical  ques- 
tion that  it  did  not  include  all  the  elements  of 
fact  testified  to  will  be  considered  on  appeal 
only  in  so  far  as  it  specifies  the  facta  in  evi- 
dence omitted  from  the  question.— Dralle  v. 
Town  of  Reedsburg  (Wis.)  771. 

I  233.  Where  the  objecting  party's  position 
was  clearly  stated  on  a  motion  for  a  direct- 
ed verdict,  held,  that  he  may  avail  himself 
thereof. — Finnes  v.  Selover,  Bates  &  Co. 
(Minn.)  174. 

(C)  Bzeeptlona. 

I  256.  An  assignment  of  error  to  a  ruling, 
refusing  to  strilte  out  a  paragraph  of  the  com- 
plaint, will  not  be  considered,  where  no  excep- 
tion was  taken. — Leistikow  v.  Zuelsdorf  (N.  D.) 
340. 

i  263.  Refusal  of  a  requested  instruction 
cannot  be  reviewed  where  no  exception  has  been 
taken  thereto. — Monaghan  v.  Northwestern 
Fuel  Co.  (Wis.)  106& 


§  265.  The  safficiency  of  findings  of  fact  to 
support  the  judgment  may  be  challenged  by  as- 
signments of  error  upon  the  record  proper,  with- 
out exceptions  to  such  findings. — Western  Mfg. 
Co.  V.  Peabody  (N.  D.)  332. 

i  266.  An  order  confirming  the  report  of  a 
referee  in  an  action  to  set  aside  tax  deeds  held 
an  order  involving  the  merits  and  necessarily 
affecting  the  judgment,  and  as  a  part  of  the 
judgment  roll  under  St.  1898,  §  289S,  and  re- 
viewable under  section  3070  on  appeal  whether 
excepted  to  or  not.— Roach  r.  Sanborn  Land 
Co.  (Wis.)  1020. 

S  273.  Exceptions  to  the  trial  court's  finding 
which  do  not  snow  the  objection  are  too  general 
to  be  considered  on  appeal. — Zimmer  v.  Saier 
(Mich.)  563. 

{  273.  That  plaintiff's  exception  to  a  finding 
was  too  general  was  immaterial,  where  other 
findings  necessary  to  make  defendant's  case 
were  sufficiently  excepted  to,  and  were  unsup- 
ported hy  competent  evidence. — T.  D.  Kellogg 
Lumber  &  Mfg.  Co.  v.  Webster  Mfg.  Co.  (Wis.) 
737. 

(D)  Motlona  for  New  Trial. 

I  293.  The  appellate  court,  except  in  ex- 
treme cases,  will  not  voluntarily  disturb  the 
verdict  of  a  jury  where  no  motion  to  set  aside 
the  verdict  has  been  made  in  the  court  below. — 
Plumb  V.  Hecla  Co.  (Mich.)  208. 

Vn.    REQinCSITES  AND  PROCEEDINGS 
FOR  TRANSFER  OF  CAUSE. 

(A)  Time  of  Taliiav  Proeeedlngra. 

Appeal  from  justice's  court,  see  Justices  of  the 
Peace,  §   155. 

S  337.  An  appeal  in  partition  before  the  trial 
court  has  acted  on  the  referee's  report  will  be 
dismissed.- Vrana  v.  Vrana  (Neb.)  678. 

i  34.5.  T'nder  Comp.  Laws  1897,  (  10,492, 
where  appellant's  counsel  did  not  duly  sue  out  a 
writ  of  error  believing  that  the  trial  court 
would,  grant  a  new  trial,  held  that  the  time 
for  suing  out  the  writ  would  be  extended  by  the 
Supreme  Court.- Belmer  v.  Boyne  City  Tanning 
Co.  (Mich.)  793. 

J  354.  A  writ  of  error  to  review  a  judgment 
d  subject  to  dismissal  l>ecause  not  issued  in 
time,  notwithstanding  a  stipulation  between  the 
parties  and  an  order  of  court  thereon.— Bliss  t. 
Tyler  (Mich.)  543. 

i  357.  Denial  of  an  application  by  defend- 
ant to  extend  her  time  to  appeal,  which  her 
former  solicitors  had  negligently  permitted  to 
expire  without  taking  the  appeal,  held  not  an 
abuse  of  discretion.— Roberge  v.  De  Lisle  (Mich.) 
302. 

(C)  Parment  of  Fees  or  Coats,  and  Bonda 
or  Other  Secnrittea. 

§  374.  Under  the  direct  provisions  of  Rev. 
Code  Civ.  Proc.  |  445,  no  appeal  bond  is  re- 
quired of  any  incorporated  town  or  city  when 
it  is  a  party  directly  interested  in  the  appeal.— 
Dring  v.  St.  Lawrence  Tp.  (S.  D.)  604. 

(D)  'Writ  of  Error,  Citation,  or  Notice. 

{  413.  Notice  of  appeal  must  be  served  on 
the  clerk  before  the  appeal  is  perfected.— Bloom 
V.  Sioux  City  Traction  Co.  (Iowa)  831. 

{  415.  Failure  to  serve  notice  of  appeal  upon 
a  coparty  whose  interests  would  be  adversely  af- 
fected by  any  change  in  the  decree  appealed  from 
held  to  deprive  the  Supreme  Court  of  jurisdic- 
tion.— Black  V.  Chase  (Iowa)  916;  Same  v. 
Black,  Id. 

I  417.  Where  the  notice  of  appeal  served  on 
the  clerk  is  sufficient  in  form  as  against  all  the 
parties  to  the  action,  it  is  sufficient. — Bloom  t. 
Sioux  City  Traction  Co.  (Iowa)  831. 


For  easts  in  Dfcc.  Dig.  *  Amer.  Digs.  1907  to  data  ft  Indexes  see  same  topic  *  section  ({)  NUHBBB 

Digitized  by  LjOOQ  l€ 


1142 


122  NORTHWESTEBN  RBPOBTEB. 


nc   BITPEBSEDEAS  OR  STAT  OF  PBO- 
CEEDINGB. 

On  appeal  from  justice's  court,  see  Justices  of 
the  Peace,  §  163. 

X.  RECOBD  Aim  PROCEEDINGS  HOT 
IN  RECORD. 

(A)  Mattera  to  be  Shoirm  by  Record. 

S  494.  An  appeal  will  be  dismissed  where  the 
record  does  not  disclose  a  final  order  or  judg- 
ment.—Vrana  V.  Vrana  (Neb.)  678. 

{  501.    Error  in  submitting  the  case  to  the 

jury  cannot  be  considered  on  appeal  where  the 
record  shows  no  exception  coTenne  the  assign- 
ment of  error.— Zimmer  v.  Saier  (Mich.)  563. 

i  501.  Under  Comp.  I«w8  1897,  I  10604.  ob- 
jections to  the  administration  of  eviaence  where 
exceptions  are  not  indexed  as  required  by  rule, 
nor  found  in  the  record,  are  not  reviewable, 
thoogh  they  have  been  grounds  of  motion  for 
new  trial.— Conger  v.  Hall  (Mich.)  1073. 

(C)   Necesattr  of  Bill  of  Bxceptlnna,  Caae, 
or  Statement   of  Facts. 

I  544.  A  bill  of  exceptions  is  not  essential  to 
nn  appeal  from  judi^nent. — Dring  t.  St.  Law- 
rence Tp.  (S.  D.)  664. 

(O)  Avtbeittleatlon  and  Certifleatlon. 

{  613.  Bill  of  exceptions  of  proceedings  be- 
fore county  board  held  not  sufficiently  authen- 
ticated.— Union  Pac.  R.  Co.  v.  Colfax  County 
(Neb.)  29. 

{  616.  An  instrument  signed  by  the  trial 
court  suppressing  the  bill  of  exceptions  in  the 
ease  was  ineffectual  for  any  purpose  where  it 
was  not  attested.— Dring  v.  St.  Lawrence  Tp. 
(8.  D.)  664. 

(H)  Tranamlsalon,    FUlnar>    Prlntlngri    and 
Service  of  Copies. 

i  621.  The  Supreme  Court  has  no  jurisdic- 
tion to  review  a  judgment  unless  appellant  with- 
in six  months  from  such  judgment  files  with  the 
clerk  of  the  Supreme  Court  a  certified  transcript 
of  the  judgment  appealed  from,  under  Code  Civ. 
Proc.  i  675.— Fromholi  r.  McOahey  (Neb.)  879. 

(I)  Defecta,   Objectlona,   Aaiendment,   and 
Correction. 

§  635.  Where  a  transcript  does  not  show 
that  an  appeal  has  been  taken  and  no  appeal 
has  been  filed  in  the  clerk's  office,  the  case  will 
be  dismissed. — State  v.  Tjemagel  (Iowa)   030. 

§  643.  Where  the  transcript  of  an  appeal  is 
not  aruthenticated  by  the  clerk  as  required  by 
Code  Civ.  Proc.  §  675,  the  Supreme  Court  six 
months  after  judgment  cannot  permit  appellant 
to  add  the  clerk's  certificate.— Fromholz  v.  Mc- 
Gahey  (Neb.)  879. 

i  654.  Defendant  in  error  held  entitled  to 
an  amendment  of  the  record.— Suchocki  v.  Ca- 
lumet Ins.  Co.  (Mich.)  216. 

{  655.  Under  Rev.  Code  Civ.  Proc  $S  294. 
296,  303,  respondents  hdd  entitled  to  have  a 
bill  of  exceptions  or  statement  of  the  case  re- 
plete with  redundant  and  immaterial  matter 
stricken  from  the  record. — Farrar  v.  Yankton 
Land  &  Investment  Co.  (S.  D.)  585. 

(K)  Oneatlona  Presented  for  Revlefv. 

S  671.  Where  the  only  assignments  of  error 
complain  of  the  refusal  to  admit  evidence,  and 
of  errors  in  instructions,  and  the  only  exception 
in  the  record  is  to  the  overruling  of  the  motion 
for  new  trial,  there  is  nothing  which  the  appel- 
late court  can  review. — Maag  t.  Stuverad  (S. 
D.)  350. 

I  709.  Though  the  amount,  as  stated  in  the 
printed  case,  improperly  allowed  respondent  as 
costs  for  the  transcript  may  include  more  than 


the  costs  of  the  transcript,  where  respondent  £d 
not  separate  the  items  of  which  the  amount 
was  composed,  the  Supreme  Court  will  not 
count  the  folios  to  determine  whether  such 
amount  includes  more  than  the  costs  improper- 
ly allowed.— Dralle  v.  Town  of  Reedsburg  (Wis.) 
771. 

t  711.  Supreme  Court  held-  unable  to  deter- 
mine from  the  record  whether  an  assignment 
of  error  to  a  ruling  of  the  circuit  court  on  ap- 
peal from  a  justice  of  the  peace  was  well  taken. 
— Dnnkley  v.  McCarthy  (Mich.)  126. 

(Ij)  Matters  Not  Apparent  of  Records 

§  712.  Where  court  quashed  a  portion  of 
bill  of  exceptions,  and  jEhere  was  nothing  to 
show  which  portion  was  quashed,  the  court 
ou  appeal  will  not  tonsider  the  evidence. — 
Union  Pac.  K.  Co.  v.  Colfax  County  (Neb.)  29. 

XI.  ASSIGNMENT  OF  ERRORS. 

i  724.  Assignments  of  error  held  too  general. 
—Stark  v.  Duhring  (Wis.)  1131. 

I  728.  Where  the  particular  parts  of  the  evi- 
dence claimed  to  have  been  improperly  admitted 
are  not  pointed  out,  and  the  pages  of  the  print- 
ed case  referred  to  do  not  contain  the  evidence 
claimed  to  be  incompetent,  the  assignment  can- 
not be  considered. — Stumm  v.  Western  Union 
Telegraph  Co.  (Wis.)  1032. 

I  730.  An  assignment  of  error  held  to  be  in 
violation  of  the  rule  that  assignments  must  be 
specific— Plumb  v.  Hecla  Co.  (Mich.)  208. 

S  753.  Under  Supreme  Oart  rule  11,  in  the 
absence  of  errors  assigned  and  filed,  the  judg- 
ment will  be  affirmed. — Williams  Bros.  Lumber 
Co.  V.  Kelly  (S.  D.)  646. 

XH.  BRIEFS. 

Expenses  of  as  costs,  see  Costs,  J  258. 

i  758.  Under  Sup.  Ct.  Rule  40,  a  statement 
as  to  certain  points  relied  on,  that  these  and 
kindred  subjects  will  be  discussed  in  their  or^ 
der,  is  not  a  sufficient  statement  of  the  errors 
relied  on,  as  the  statement  should  enable  the 
court  to  determine  what  errors  are  abandon- 
ed.— People  V.  Van  Alstyne  (Mich.)  193. 

i  758.  An  appellant's  brief  should  conform 
to  Supreme  Court  Rule  40  (68  N.  W.  viii)  In 
stating  the  errors  relied  on. — Hunter  v.  Dwight 
Tp.   (Mich.)   267. 

Xni.   DISMISSAL,  WITHDRAWAL.  OR 
ABANDONMENT. 

i  776.  Plaintiff  in  error,  on  objection  being 
made  to  the  writ,  may  voluntarily  dismiss  the 
same  but  only  on  payment  of  costs. — Ullman  v. 
Sandell  (Mich.)  617. 

§  781._  An  appeal  from  a  decree  dismissing  a 
bill  for  injunction  must  be  dismissed,  where  the 
sale  temporarily  enjoined  had  been  held  after 
dissolution  of  the  temporary  injunction. — Hicks 
V.  J.  B.  Pearce  Co.  (Mich.)  1087. 

i  787.  Writ  of  error  dismissed  for  failure 
to  prosecute  with  dilipence. — Starkweather  v, 
Thorington's  Estate  (Mich.)  lia 

XV.  HEARING  AND   REHEARING. 

§  816.  Where  each  porty  sued  out  a  writ  of 
error,  the  appeals  should  have  been  consolidat- 
ed and  heard  together. — Zimmer  v.  Saier 
(Mich.)  563. 

{  832.  A  misstatement  as  to  the  nature  of 
the  action  in  the  opinion  furnishes  no  ground 
for  a  rehearing.— Robbing  ▼.  Selby  (Iowa)  054. 

XVL  REVIEW. 

(A)   Scope  and  Bxtent  In  General. 

8  837.  Where  petitions  for  mandamus  and 
for  leave  to  file  a  bill  of  review  were  not  based 


Topics,  dlvUlons,  *  secUon  »)  NUMBERS  In  this  Index,  ft  Dec.  ft  Amer.  Digs,  ft  Reporter  Indexu  asra* 

Digitized  by  LjOOQ  l€ 


INDEX-DIGBST. 


1143 


on  the  Btenograidier's  transcript,  It  could  not 
be  considered  by  the  Supreme  Court. — Roberge 
V.  De  Lisle  (Mich.)  362. 

i  853.  Complaint  held  properly  construed  as 
stating  a  cause  of  action  for  gravel  sold  and 
delivered  by  the  load,  and  not  for  services  in 
Itauling  same.— Monture  v.  Regling  (Wis.)  1129. 

f  8S4.  Where  the  trial  court  directed  a  ver- 
dict for  defendant  without  indicating  the  ground 
of  the  ruling,  plaintiff's  whole  case  was  before 
the  Supreme  Court  on  appeal. — Bloom  v.  Sioux 
<3ity  Traction  Co.  (Iowa)  831. 

■(B)  Interloeatorr,  Collateral,  and  Supple- 
mentarr  ProceecHngra  and  ftneatlona. 

{  873.  Under  Pub.  Acts  1907,  pp.  497,  498, 
No.  340,  a  1,  5,  a  temporary  provision  for  the 
support  of  the  wife  and  children,  incorporated 
in  a  final  decree  for  divorce,  held  not  review- 
able on  appeal,  and  subject  to  a  stay  on  filing 
an  appeal  bond.— Delor  v.  Donovan  (Mich.)  196. 

(D)  AmendmentB,   Additional   Proofs,   and 
Trial  of  Cause  Anor. 

Trial  de  novo  on  appeal  from  justice's  court, 
see  Justices  of  the  Peace,  §  173. 

S  895.  The  Supreme  Court  on  appeal  in  an 
•equitable  action  triable  de  novo  ma^  not  consid- 
er a  point  not  witliin  the  scope  of  issues  as  for- 
ffiulated  below.— Chicago,  M.  &  St.  P.  By.  Co. 
v.  Monona  County  (Iowa)  820. 

(B)  Preanmptlons. 

§  907.  The  findings  of  a  court  and  jury  are 
-presumed  to  be  correct;  and,  unless  there  is  a 
clear  preponderance  of  evidence  against  them, 
they  will  not  be  disturbed  on  appeal. — Mason  v. 
Fire  Ass'n  of  Philadelphia  (S.  D.)  423. 

§  926.  In  an  action  for  libel,  the  admission 
•of  evidence  identifying  the  docket  of  a  justice  j 
■before  whom  plaintiff  was  taken  when  arrested 
must  be  presumed  to  be  correct,  in  the  absence 
of  a  showing  of  the  contents  of  the  docket. — 
O'Neil  V.  Adams  (Iowa)  976. 

i  927.  The  Supreme  Court,  reviewing  a  judg- 
ment on  a  directed  verdict  for  defendant,  can- 
not consider  the  oral  testimony  of  defendant 
where  the  testimony  of  plaintiff  contradicts  it, 
"but  must  take  the  testimony  of  plaintiff  as 
true. — Rumsey   v.   Fox   (Mich.)   526. 

i  927.  Where  plaintiff  appeals  on  the  ground 
that  the  trial  court  should  have  directed  a  ver- 
'dict  in  his  favor,  the  question  must  be  disi>osed 
of  on  that  version  of  the  testimony  most  favor- 
able to  defendant. — Sheffer  v.  Fleischer  (Mich.) 
.543. 

{  930.  On  an  appeal  from  a  judgment  for 
defendant,  on  the  ground  that  the  verdict  was 
not  supported  by  the  evidence,  the  Supreme 
-Court  must  give  the  testimony  the  most  favor- 
.able  construction  which  it  will  reasonably  bear 
in  support  of  the  verdict.— Coulthard  v.  Mcin- 
tosh (Iowa)  233. 

{  931.  Where  the  trial  court  found  generally 
that  the  allegations  of  the  complaint  were  true, 
the  Supreme  Court  must  assume  that  it  found 
all  controverted  questions  in  plaintiff's  favor. — 
Karnes  v.  Karnes  (Wis.)  717. 

!  931.  Under  Laws  1907,  p.  571,  c.  346,  i 
2858m,  the  court  having  rendered  judgment  for 
defendant,  it  must  be  considered  that  the  court 
.determined  from  the  evidence  that  defendant 
was  not  negligent.— Lehman  v.  Chicago,  St.  P., 
-M.  &  O.  Ry.  Co.  (Wis.)  1059. 

S  932.  The  court,  on  appeal  from  a  judgment 
in  a  personal  injury  action  because  inadequate, 
must  give  defendant  the  benefit  of  the  most  fa- 
vorable inferences  to  be  drawn  from  the  record. 
—Hall  V.  Chicago,  B.  &  Q.  Ry.  Co.  (Iowa)  894. 

8  933.  There  is  a  strong  presumption  on  ap- 
Veal  in  favor  of  the  corrertness  of  the  action  of 


the  court  in  granting  a  new  trial.— J.  I.  Case 
Threshing  Mach.  Co.  v.  Fisher  &  Aney  (Iowa) 
575. 

i  934.  The  court,  on  appeal  from  an  order 
committing  neglected  children  to  a  childrens' 
home,  as  authorized  by  Code  Supp.  1007.  8 
3260-b  et  seq.,  held  required  to  presume  that 
the  evidence  justified  the  order. — In  re  Fast 
(Iowa)  153. 

(F)  Discretion  of  I^ovrer  Conrt. 

§  945.  A  decision  of  the  trial  court  based 
on  discretion  cannot  be  set  aside  solely  for  the 
reason  that  the  Supreme  Court  might  not  have 
reached  the  same  conclusion. — Smith  v.  Carter 
(Wis.)   1035. 

i  962.  ■^Tiere  the  circuit  court  exercises  its 
discretion  in  dismissing  a  case  for  want  of 
prosecution,  it  is  only  m  a  very  clear  case  of 
abuse '  that  the  Supreme  Court  should  reverse 
it.— Smith  V.  Carter  (Wis.)  1035. 

8  969.  It  is  within  the  sound  discretion  of 
the  trial  court,  after  notice  to  counsel,  to  limit 
the  number  of  witnesses  to  be  produced  on 
either  side  on  a  certain  issue,  and  the  exercise 
of  such  discretion  will  not  be  interfered  with 
on  appeal,  where  no  prejudice  appears. — In  re 
Winslow's  Wai  (Iowa)  971. 

8  970.  The  court's  discretion  in  the  admis- 
sion or  exclusion  of  evidence  not  strictly  in 
rebuttal  will  be  reversed  only  for  gross  abuse. 
— Minnesota  &  Dakota  Cattle  Co.  y.  Chicago  & 
N.  W.  Ry.  Co.  (Minn.)  493. 

8  970.  The  trial  court's  discretion  in  ex- 
cluding evidence  of  collateral  facts  as  too  re- 
mote will  rarely  be  overruled. — ^Fitch  v.  Mar- 
tin (Neb.)  60. 

I  970.  The  receipt  or  reiection  of  collateral 
evidence  is  lai^ely  within  the  trial  court's  dis- 
cretion, and  its  ruling  will  rarely  be  disturbed. 
—Young  V.  Kinney  (Nelk)  679. 

8  977.  Motions  for  new  trial  are  addressed 
to  the  discretion  of  the  trial  court,  and  will 
not  be  interfered  with,  unless  the  decision  is 
clearly  against  the  evidence.— In  re  Buzalsky's 
Estate  (Minn.)  322;    Buzalsky  v.  Buzalsky,  Id. 

8  979.  The  discretion  of  the  court  granting 
a  new  trial  for  insufficiency  of  the  evidence  will 
be  reversed  only  in  a  strong  showing. — Rex  Bug- 
gy Co.  V.  Dinneen  (S.  D.)  43a 

8  083.  Determination  of  an  application  for 
leave  to  file  a  bill  of  review  will  not  he  over- 
ruled in  the  absence  of  abuse  of  discretion. — 
Roberge  v.  De  Lisle  (Mich.)  362. 

8  984.  In  a  will  contest,  the  trial  court's 
award  of  costs  against  contestant  will  not  be 
disturbed  on  appeal.— In  re  Hyde's  Will  (VVis.) 
774;  Donovan  v.  Hyde,  Id. 

(G)  Questions  of  Fact,  Verdicts,  and  Flnd- 
Inars. 

Probate  proceedings,  see  Wills,  8  386. 

8  987.  The  Supreme  Court  on  writ  of  er- 
ror will  not  weigh  the  evidence  in  support  of 
a  verdict.— Lund  v.  Sargent  Mfg.  Co.  (Mich.) 
372. 

8  987.  It  is  not  the  duty  of  an  appellate 
court  to  demonstrate  by  a  review  of  the  evi- 
dence the  absolute  correctness  of  findings  of 
fact.— Bamum  v.  Jefferson  (Minn.)  453. 

8  099.  Whether  a  train  dispatcher  ordered 
a  train  to  proceed  on  the  main  line  on  which 
to  his  knowledge  there  was  a  stalled  train,  re- 
sulting in  a  collision,  was  a  question  for  the 
jury,  whose  verdict  will  not  be  disturbed, — 
Dupan  V.  Boyne  City,  G.  &  A.  R.  Co.  (Mich.) 
1094. 

(  1001.  A  verdict,  supported  by  substantial 
evidence,  will  not  be  disturbed. — Cook  v.  Whit- 
ing (lon-a)  835. 


For  cases  >n  Dec.  Dig.  *  Am«r.  Digs.  1907  to  date  4k  Indexes  lee  ume  topic  A  aectloa  (i)  NUMBER 


Digitized  by  VjOOQ  l€ 


1144 


122  NORTHWBSTBRN  RBPORTEH. 


i  1001.  The  findings  sapported  by  a  pre- 
ponderance of  the  evidence  will  not  be  disturb- 
ed on  appeal.— Hamilton  t.  Deinxer  (Mich.) 
104. 

$  1001.  If  tlie  jury  were  reasonably  war- 
ranted in  the  conclusions  found  in  their  special 
verdict,  it  is  not  reviewable. — Stnmm  v.  West- 
em   Union  Telegraph  Go.   (Wis.)    1032. 

i  1002.  A  verdict  on  conflicting  evidence  will 
not  be  disturbed -on  appeal. — Security  Sav.  Bank 
of  Wellman  v.  Smith  (Iowa)  825;  McClatchey 
V.  Anderson  (Meb.)  67:  In  re  Rieger's  Estate 
(Neb.)  860;   Rieger  v.  Schaible,  Id. 

i  1002.  Where  the  testimony  was  conflicting, 
and  no  reversible  error  appears,  the  judgment 
will  be  affirmed.— Speer  v.  Naldrett  (Mich.)  224. 

t  1002.  It  is  not  the  province  of  the  Supreme 
Court  to  examine  conflicting  evidence  further 
than  to  see  that  there  is  sufficient  to  justify  the 
conclusion  reached. — Young  t'.  Kinney  (Neb.) 
679. 

S  1004.  Damages  awarded  in  a  personal  in- 
jur? action  will  not  be  disturbed  as  excessive  or 
inadequate,  unless  the  jury  fail  to  comprehend 
the  case,  or  was  influenced  by  passion  or  prej- 
ndice.— Hall  v.  Chicago,  B.  &  Q.  Ry.  Co.  (Iowa) 
804. 

I  1004.  Verdict  in  an  action  for  personal 
injuries  will  not  be  set  aside,  because  inade- 
quate, where  it  is  for  a  substantial  sum. — 
Srhmidt  v.  Chicago,  M.  A  St  P.  Ry.  Co. 
(Minn.)  9. 

i  1004.  In  an  action  for  injuries  to  a  serv- 
ant, a  verdict  allowing  plaintiff  $14,500  sus- 
tained by  the  trial  court  held  not  excessive. — 
Monaghan  v.  Northwestern  Fuel  Co.  (Wis.) 
1060. 

S  1006.  A  third  verdict  shonld  not  be  set 
aside  and  the  cause  remanded  save  upon  a 
satisfactory  showing  of  prejudicial  error.— Lem- 
on v.  Sigoumey  Sav.  Bank  (Iowa)  939. 

i  1008.    A  finding  of   the   trial   court  on  a 

J[uestion  of  fact  has  the  force  and  effect  of  a 
ury  verdict,  with  whidi  the  Supreme  Court  can- 
not properly  interfere. — Anderson  v.  First  Nat. 
Bank  (Iowa)  013- 

i  1008.  The  making  and  delivery  of  a  deed 
is  a  question  of  fact— Alien  y.  Maser 
(Mich.)  Sa 

i  1008.  A  fining  by  the  court  in  an  action 
at  law  is  entitled  to  as  much  respect  as  a  ver- 
dict—Dorsey  V.  Wellman  (Neb.)  980. 

$  lOOa  The  findings  of  the  trial  court  will 
not  be  disturbed,  unless  the  evidence  clearly  pre- 
ponderates against  them. — Empson  v.  Reliance 
Gold  Mining  Co.  (S.  D.)  346. 

S  1010.  Findings  of  fact  by  the  trial  court 
supported  in  the  evidence  are  conclusive  npon 
the  Supreme  Court— Scrivner  t.  Anchor  Fire 
Ins.  Co.  (Iowa)  942. 

I  1010.  On  a  review  of  the  sufficiency  of  the 
evidence  to  support  the  findings,  the  question 
is  whether  there  is  any  evidence  reasonably 
tending  to  sustain  them. — Bamum  t.  Jefferson 
(Minn.)  453. 

I  1010.  Where  a  finding  as  to  the  authority 
of  a  general  agent  is  supported  by  uncontra- 
dicted evidence  against  his  principal,  it  will 
be  adhered  to  on  appeal  in  determining  whether 
the  principal  is  bound  thereby. — J.  I.  Case 
Threshing  Mach.  Co.  v.   Johnson  (Wis.)  1037. 

{  1010.  Findings  of  fact  of  the  trial  court, 
not  contrary  to  the  clear  preponderance  of  the 
evidence,  are  conclusive  on  the  Supreme  Court, 
and  the  judgment  based  thereon  will  not  be  dis- 
turbed if  the  conclusions  of  law  are  warranted. 
— Kathan  v.   Comstock  (Wis.)  1044. 

S  1010.  The  findings  of  the  court  as  to  facts 
must    stand    unless    the    evidence    in°  support 


thereof  Is  incredible  or  not  of  snffident  weight 
to  warrant  them.— White  v.  White  (Wis.)  1051. 

{  1011.  A  finding  on  conflicting  evidence  will 
not  be  disturbed.— In  re  Rieger's  Estate  (Neb.) 
860 ;   Rieger  v.  Schaible,  Id. 

f  1012.  Unless  the  clear  preiiondeiance  of  the 
evidence  is  against  the  findings,  they  cannot  be 
disturbed  on  appeal.— T.  D.  Kellogg  Lumber  & 
Mfg.  Co.  v.  Webster  Mfg.  Co.  (Wie.)  737. 

{  1012.  Where  the  evidence,  though  ambigu- 
ous, preponderantly  supports  the  view  of  the 
trial  court  as  to  a  material  fact,  its  conclusion 
will  be  accepted  on  appeal. — J.  I.  Case  Thresh- 
ing Mach.  Co.  V.  Johnson  (Wis.)  1037. 

(H)  Harmlesa  Error. 

Probate  proceedings,  see  Wills,  |  384. 

{  1027.  A  reversal  will  not  be  granted  for 
error,  where  it  appears  the  result  would  be  the 
same  on  a  new  triah — Tisdale  v.  Ennis  (Iowa) 
959. 

i  1027.  In  a  libel  action,  error  in  certain 
rulings  held  prejudicial  to  plaintiff.- Lawrence 
V.  Herald  Pub.  Co.  (Mich.)  1084. 

i  1029.  A  case  should  not  be  reversed  for  er- 
rors against  a  party  not  entitled  to  succeed  in 
any  event— City  of  Flint  v.  Stockdale's  Estate 
(Mich.)  279. 

8  1033.  Appellant  may  not  assign  error  on 
rulings  favoraole  to  him.— Dalm  v.  Bryant  Pa- 
per Co.  (Mich.)  257. 

i  1033.  The  admission  of  improper  evidence 
is  harmless  where  the  evidence  was  favorable 
to  appellant— White  v.  White  (WU.)  1051. 

S  1039.  Refusal  to  compel  plaintiff  to  elect  on 
which  cause  of  action  he  would  proceed  in  an 
action  for  breach  of  express  contract,  which 
was  joined  with  one  for  labor  performed,  held 
not  to  have  prejudiced  defendant. — Richey  v. 
Union  Cent.  life  Ins.  Co.  (Wis.)  1030. 

{  1042.  In  an  action  by  a  broker  for  commis- 
sions, the  error  in  refusing  to  strike  out  an  al- 
legation of  the  answer  held  not  prejadidaL— 
Cook  V.  Whiting  (Iowa)  835. 

{  1042.  In  an  action  for  injuries  on  a  defect- 
ive sidewallc,  a  refusal  to  strike  the  amended  pe- 
tition held  not  prejudicial. — Jackson  t.  City  of 
Grinnell  (Iowa)  911. 

I  1046.  In  an  action  for  libel,  defendant 
held  not  prejudiced  by  a  ruling  that  the  bur- 
den of  proof  was  on  the  defendant.— O'Neil  v. 
Adams  (Iowa)  976. 

i  1047.  Where  evidence  is  competent  and 
relevant  to  the  issues,  the  appellate  court  will 
not  ordinarily  reverse  because  of  the  order  in 
which  it  was  introduced.— In  re  Winslow's  Will 
(Iowa)  971. 

I  1050.  In  an  action  on  an  insarance  poli- 
cy, the  admission  of  incompetent  evidence  to 
show  ownership  of  property  held  harmiess.-;- 
Kennedy  v.  Ixindon  &  Lancashire  Fire  Ins. 
Co!  (Mich.)  134. 

^  1050.  Admission  and  exclusion  of  certain 
evideuce  in  an  injury  action  if  error  k^d  not 
prejudicial. — Beattie  v.  Detroit  United  Ry. 
(Mich.)  !557. 

{  10.50.  A  railroad  comimny  held  not  preju- 
diced by  the  admission  of  a  conductor's  declara- 
tion at  the  time  of  the  accident,  without  proof 
that  it  was  res  gestie. — Hendrickson  v.  Wiscon- 
sin Cent  Ry.  Co.  (Wis.)  758. 

i  1051.  In  an  action  on  a  fire  insurance  poli- 
cy, the  admission  of  the  proofs  of  loss  to  snow 
the  amount  of  loss  held  harmless  in  view  of 
other  evidence.— Kennedy  v.  London  &  Lan- 
cashire Fire  Ins.  Co.  (Mich.)  134. 

$  1051.  Error  in  admission  of  evidence  held 
harmless  in  view  of  other  evidence. — Neeley  v. 

Roberts  (S.  D.)  055. 


Topics,  divUlons,  &  section  (J)  NUMBERS  In  this  Index,  &  Dec.  t  Amer.  Digs.  *  Rei:ort«r  Indexes  acre* 

Digitized  by  LjOOQ  l€ 


INDBZ-DIGBST. 


1145 


i  1051.  Any  error  in  admitting  evidence  was 
harmless,  wliere  ttie  same  facta  were  shown 
by  competent  evidence.— Stumm  ▼.  Western 
Union  Telegraph  Co.  (Wis.)  1032. 

I  1051.  Where  there  was  competent  evidence 
to  sustain  the  findings,  the  error  in  admitting 
other  evidence  was  not  prejudicial.— Starli  v. 
Duhring  (Wis.)   1131. 

I  1052.  The  admission  of  evidence  upon  a 
point  which  the  jury  finds  in  favor  of  appellant 
18  not  error;  he  not  being  prejudiced  thereby. 
—Lehman  v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co. 
(Wis.)  1059. 

I  1053.  In  an  action  for  misrepresentations 
by  which  plaintifE  was  induced  to  contract  to 
oiien  a  sales  agency  for  defendant's  goods 
brought  upon  rescinding  the  contract,  the  court's 
refusal  to  charge  plaintiff's  request  as  to  mis- 
representations as  to  salary  and  exiienses,  and 
the  refusal  to  submit  that  question  to  the  jury, 
eliminated  the  evidence  relative  to  such  misrep- 
resentations.— Ward  V.  Cook  (Mich.)  785. 

i  1053.  In  an  action  for  breach  of  a  contract 
by  which  plaintiff  was  to  establish  a  sales  agen- 
cy for  defendant's  goods,  any  error  in  admitting 
letters  relating  to  the  expenses  of  the  business 
and  plaintiff's  salary  was  harmless,  where  the 
court  afterwards  took  from  the  jury's  consid- 
eration the  qnestions  of  expenses  and  salary. — 
Ward  V.  Cook  (Mich.)  785. 

I  1053.  Any  error  in  admitting  three  exhibits 
was  cured  by  subsequently  striking  them  from 
the  evidence.— Ward  v.  Cook  (Mich.)  785. 

I  1054.  Where  inadmissible  evidence  was  re- 
ceived in  a  will  contest,  and  the  record  does 
not  show  that  it  was  considered  by  the  court, 
no  reversable  error  appears. — In  re  Hyde's  Will 
(Wis.)  774;  Donovan  v.  Hyde,  Id. 

^  1056.  In  an  action  for  libel,  exclusion  of 
evidence  as  to  the  effect  of  the  libelous  pub- 
lications on  plaintiff  personally,  when  his  at- 
tention was  called  thereto,  held  harmless. — 
O'Neil  V.  Adams  (Iowa)  976. 

i  1056.  In  an  action  against  a  town  for  in- 
juries caused  by  being  thrown  from  a  wagon  by 
running  over  a  rock  in  the  traveled  highway, 
held  not  prejudicial  error  to  exclude  evidence 
as  to  whetner  a  space  at  the  side  of  the  traveled 
road  could  be  used  for  driving,  and  whether  the 
plaintiff  could  have  used  this  space  at  the  place 
she  was  injured. — Dralle  T.  Town  of  Reedsburg 
(Wis.)  771. 

{  1058.  Error  in  sustaining  an  objection  to 
a  question  is  cured  by  subsequently  repeating 
the  question  without  objection  to  which  full 
answer  is  made. — International  Harvester  Co. 
of  America  v.  Iowa  Hardware  Co.  (Iowa)  951. 

i  1060.  Where,  In  an  action  for  personal  in- 
juries, testimony  leads  hut  to  the  one  conciu* 
sion,  which  was  reached  in  a  verdict  and  judg- 
ment for  plaintiff,  extravagant  remarks  of  the 
attorney  for  plaintiff,  which,  with  a  single  ex- 
ception, appeared  to  be  based  on  testimony, 
should  not  be  said  to  prejudice  defendant. — 
Clement  v.  Crosby  ft  Co.  (Mich.)  203. 

i  1060.  Argument  of  counsel  held  not  revers- 
ible error.— Pierce  v.  C.  H.  Bidwell  Thresher 
Co.  (Mich.)  628. 

8  1062.  'Plaintiff  held  not  prejudiced  by  the 
withdrawal  of  an  additional  count  from  the  ju- 
rjr  which  was  inconsistent  with  the  cause  of  ac- 
tion submitted  to  them  on  which  they  returned 
a  verdict  in  his  favor.— Graham  v.  Chicago  & 
N.  W.  Ry.  Co.  (Iowa)  573. 

f  1064.  In  an  action  on  a  note,  an  instruc- 
tion held  not  prejudicial  to  the  payee,  in  view 
of  the  undisputed  evidence. — Security  Sav.  Bank 
of  Wellman  v.  Smith  (Iowa)  825. 

I  1064.  A  reference  in  an  instruction,  to  fur- 
ther instructions  as  to  an  issue,  as  "some  ob- 


servations"  held  harmless.— Oreenway  v.  Tay- 
lor County  (Iowa)  043. 

i  1067.  In  an  action  for  breach  of  an  agree- 
ment by  defendant  to  refrain  from  practicing 
medicine  for  a  certain  time,  error  in  refusing 
an  instruction  that,  if  defendant  obtained  plain- 
tiff's permission  to  visit  certain  patients,  plain- 
tiff could  not  recover  for  breach  of  contract  for 
making  such  calls,  held  reversible. — Brown  v. 
Edsall  (S.  D.)  658. 

I  1068.  Where  only  compensatory  damages 
were  awarded,  error  in  instructing  as  to  exem- 
plary damage  was  not  prejudicial  to  the  defeat- 
ed party.— Security  Sav.  Bank  of  Wellman  v. 
Smith  (Iowa)  825. 

g  1068.  An  instruction  upon  a  point  which 
the  jury  finds  in  favor  of  appellant  cannot  be 
assigned  as  error.— Lehman  v.  Chicago,  St.  P., 
M.  ft  O.  Ry.  Co.  (Wis.)  1059. 

(D  Brror  'Waived  Im  Appellate  Court. 

S_  1078.  Where,  on  appeal  from  an  order  de- 
nying a  temporary  injunction  and  sustaining  a 
demurrer  to  the  complaint,  no  question  Is 
raised  as  to  whether  the  complaint  falls  with- 
in some  recognized  head  of  equity  jurispru- 
dence, the  court  will  not  consider  such  ques- 
tion, but  it  will  be  deemed  that  the  parties 
waived  it.— City  of  Superior  v.  Douglas  Coun- 
ty Telephone  Co.  (Wis.)  1023. 

(K)  Svbaeanent  Appeals. 

g  1097.  Prior  decisions  on  appeal  are  the 
law  of  the  case  so  far  as  the  questions  decid- 
ed are  concerned. — Oraham  v.  Chicago  &  N.  W. 
Ry.  Co.  (Iowa)  673. 

{  1007.  A  decision  on  appeal  held  res  jud- 
icata as  to  all  matters  necessarily  involved. — In 
re  Cook's  Estate  (Iowa)  578. 

i  1097.  Decision  of  questions  on  former  ap- 
peals held  the  law  of  the  case. — Lemon  v.  Sig- 
oumey  Sav.  Bank  (Iowa)  939. 

g  1097.  The  determination  of  questions  by 
the  Supreme  Court  becomes  the  law  of  the  case, 
and  ordinarily  they  will  not  be  re-examined. — 
In  re  Rieger's  Estate  (Neb.)  860;  Rieger  v. 
Schaible,  Id. 

g  1097.  The  determination  of  the  Supreme 
Court  on  appeal  is  the  law  of  the  case  on  a  sub- 
sequent appeal. — Bettle  v.  Tiedgen   (Neb.)  890. 

{  1097.  The  decision  of  the  Supreme  Court 
on  appeal  is  the  law  of  the  case  and  binds  the 
parties  on  a  subsequent  appeal,  whether  such 
decision  is  right  or  wrong. — Roach  v.  Sanborn 
Land  Co.  (Wis.)  1020. 

XVn.  DETERMINATIOir  AND  DISFO- 
SmOM  OF  OAXrSE. 

(A)  Deolalom  la  Oeneral. 

j  1103.  Where  both  the  administrator  and 
contestant  sued  out  a  writ  of  error  in  a  pro- 
ceeding for  the  allowance  of  the  administra- 
tor's final  account,  and  the  cases  were  not  heard 
together  on  appeal,  a  decision  on  contestant's 
appeal  that  certain  charges  were  properly  re- 
jected is  res  judicata  on  the  appeal  by  tlie  ad- 
ministrator.— Zimmer  v.   Saier  (Mich.)  663. 

(D)  Revemal. 

g  1170.  Notwithstanding  the  Supreme  Court 
is  of  the  opinion  that  the  trial  court  under  Code, 
g  2405,  should  have  granted  a  temporary  injunc- 
tion as  a  matter  of  course,  yet,  where  the  ques- 
tion presented  is.  a  moot  one,  it  is  not  justified 
in  reversing  the  final  decree  or  doing  more  than 
indicating  that  the  trial  court  should  have  is- 
sued the  temporaiy  injunction. — Sawyer  v.  Te^ 
mohlen  (Iowa)  924. 

I  1170.  In  an  action  by  the  holder  of  town- 
ship bonds  to  recover  the  amount  of  the  debt 
represented  thereby,  the  irregularity  of  direct- 


Tor  cases  m  Dec.  V.g.  *  Amer.  Digs.  UOT  to  date  A  Indexes  see  same  topic  A  section  ({)  NUMUBR 

Digitized  by  LjOOQ  l€ 


1146 


122  NORTHWESTERN  HEPDRTER. 


ins  a  verdict  for  plaintiff,  after  receiving  cer- 
tain add!ti<»ial  evidence  withoat  renewing  the 
motion  to  direct,  may_  be  disregarded  ag  not  af- 
fecting any  substantial  right  in  view  of  Rev. 
Code  Civ.  Proc.  §  153.— Dring  v.  St.  Lawrence 
Tp.  (S.  D.)  664. 

{  1170.  Under  St.  1898,  {  2829,  a  party  Keld 
not  entitled  to  coiin>lain  on  appeal  of  an  ir- 
regalarity  in  the  Judgment  in  no  way  affecting 
his  substantial  rights. — Wolf  v.  Green  Bay,-0., 
M.  &  S.  W.  Ry.  Co.  (Wis.)  743. 

!  1171.  Under  Laws  1909,  p.  206,  e.  192,  a 
new  trial  will  be  ordered  where  the  erroneoas 
admission  of  evidenre  affects  the  substantial 
rights  of  the  appellant,  although  the  amount 
in  controversy  will  not  pay  for  a  new  trial. — 
Monture  v.   Regling  (Wis.)   1129. 

S  1175.  The  Supreme  Conrt  held  not  required 
to  enter  the  final  decree  on  appeal  in  a  case  tri- 
able de  novo  by  it,  but  entitled  to  reverse  and 
leave  the  correction  for  the  trial  court — ^Miller 
V.  Kosebrook  (Iowa)  837. 

{  1177.  A  new  trial  is  not  necessary  where 
the  appeal  was  heard  on  stipulated  facts. — De- 
loria  V.  Atkins  (Mich.)  559. 

S  1178.  In  a  suit  for  relief  against  convey- 
ances of  property  obtained  by  fraud,  where  the 
objection  that  a  necessary  party  was  not  named 
as  plaintiff  was  not  alleged  until  the  hearing 
was  nearly  concluded,  the  better  practice  is  for 
the  Supreme  Court  not  to  dismiss  the  case,  but 
to  remand  it,  with  leave  to  bring  in  the  neces- 
sary party.— Stewart  v.  Hall  (Iowa)  609. 

g  1178.  The  Supreme  Court  on  appeal  from 
an  erroneous  judgment  dismissing  an  action 
against  a  municipality  for  flooding  land  beyond 
its  limits  will  remand  the  case  for  trial  on  the 
issue  of  damages. — Baker  v.  Incorporated  Town 
of  Akron  (Iowa)  926. 

(F)  Mandate    and    Proeeedlngra    la    Iiovrer 
Conrt. 

{  1195.  A  decision  on  appeal  held  the  law 
of  the  case  as  to  certain  matters. — Wapello 
State  Sav.  Bank  v.  Colton  (Iowa)  149. 

g  1195.  That  the  question  of  contributory 
negligence  was  for  the  jury  held  to  be  the 
law  of  the  case  on  a  third  trial.— McQuisten  v. 
Detroit  Citizens'  St  Ry.  Co.  (Mich.)  107. 

g  1201.  A  party  procuring  an  order  staying 
proceedings  on  representations  that  if  the 
ruling  was  aiBrmed,  no  trial  of  the  issues  of 
fact  would  be  necessary  held  not  entitled,  on 
afllrmance  of  the  case,  to  demand  relief  on  a 
state  of  facts  contradictory  to  those  alleged 
as  construed  by  the  Supreme  Court. — Wapello 
State  Sav.  Bank  v.  Colton  (Iowa)  149. 

g  1201.  Objectors  in  proceedings  for  the  dis- 
tribution of  a  fund  recovered  for  wrongful 
death  held  on  appeal  to  belong  entirely  to  the 
widow  were  not  entitled  after  remand  to  plead 
a  Nebraska  statute  changing  the  rule  of  dis- 
tribution.—In  re  Cook's  Estate  (Iowa)  578. 

S  1201.  Amendments  to  the  petition  or  an- 
swer after  reversal  and  remand  are  permitted 
only  in  law  cases  or  in  equity  by  express  di- 
rection of  the  Supreme  Court. — In  re  Cook's 
Estate  (Iowa)  578. 

g  1203.  Under  Code  Civ.  Proc.  i  465,  relat- 
ing to  dismissal,  held,  that  no  good  cause  was 
shown  for  refusal  to  dismiss  an  action  after 
remand  when  not  tried  witliin  a  year. — Mead- 
ows V.  Osterkamp  (S.  D.)  419. 

g  1207.  Under  the  facts  as  to  a  reversal  In 
part,  held  the  trial  court  hsd  jurisdiction,  and 
It  was  its  duty,  on  writ  of  iirocedendo  to  it,  to 
enter  such  decree  as  it  should  have  entered  orig- 
inally. Sup.  Ct.  rule  63,— Miller  v.  Uosebrook 
(Iowa)  837. 


ZVm.  UABUJTIES  OK  BOHSS  AMD 
UKDEBTAXXirOS. 

Action  for  costs  and  for  Judgment  recovered 
as  presentini^  single  and  enure  cauae  of  ac- 
tion, see  Action,  g  38. 

Making  defendant  of  party  refusing  to  Join  as 
plaintiff,  see  Parties,  §  35. 

g  1227.  An  agreement  between  parties  to 
au  appeal  that  judgment  should  be  entered 
against  appellant,  based  npon  mutual  advan- 
tages, outside  of  the  matters  involved  in  the 
appeal,  held  to  release  the  surety  on  the  «p- 

gial   bond.— Wabaska  Electric  Co.  T.  City  of 
lue  Springs  (Neb.)  21. 

g  1227.  The  liability  of  a  surety  npon  an 
appeal  bond  is  not  enlarged,  so  as  to  discbarge 
the  surety,  because  the  appellate  court  adds  to 
the  amount  of  the  judgment  below  interest 
from  its  entry. — Wabaska  Electric  Co.  ▼.  City 
of  Blue  Springs  (Neb.)  21. 

g  1244.  Where  a  cost  and  supersedeas  bond 
were  in  one  instrument,  and  the  judgment  was 
assigned  before  affirmance,  the  assignees  could 
intervene,  in  an  action  by  the  judgment  credit- 
or on  the  bond  to  enforce  bis  unaisigned  judg- 
ment for  costs  on  the  appeal— Jerome  r.  Bust 
(S.  D.)  344. 

APPLIANCES. 

Liability  of  employer  for  defects,  see  Master 
and"  Servant,  gg  101-124. 

APPLICATION. 

For  new  trial,  see  New  Trial,  gg  116,  106b 

APPOINTMENT. 

See  Officers,  gg  7-72. 

Of  executor  or  administrator,  see  Executors 
and  Administrators,  gg  20-37. 

APPRAISAL 

Of  loss  under  insurance  policy,  see  Insurance, 
gg  570-574. 

APPROPRIATION. 

For  payment  of  municipal  debts,  see  Munici- 

fal  Corporations,  g  891. 
water  rights  in  public  lands,  see  Waters  and 
Water  (Jourses,  gg  12,  21. 

APPROVAL 

By  Secretary  of  Interior  of  appropriation  of 
water  rights  in  public  land,  see  Waters  and 
Water  Courses,  g  12. 

ARBITRATION  AND  AWARD. 

See  Reference. 

ARGUMENT  OF  COUNSEL 

In  civil  actions.  See  Trial,  gg  107-133. 
In  criminal  prosecutions,  see  Criminal  Law,  gg 
706,  715. 

ARREST. 

See  Escape. 

Illegal  arrest,  see  False  Imprisonment. 

H.   ON   CBIBIINAX.   OHAROE8. 

Best  and  secondary  evidence  of  arrest  see  Evi- 
dence, gg  157,  186. 

g  62.  A  summary  arrest,  to  prevent  viola- 
tion of  the  Sunday 'observance  law,  Comp.  Laws 


Topics,  dlvUloni,  ft  section  ({)  NUMBERS  In  thti  Index,  *  Dae.  *  Amar.  Digs.  *  Reportar  Indexts  sstm 

Digitized  by  VjOOQ  l€ 


INDEX-DIOBST. 


1147 


1807,  {5912,  is  not  authorized.— Terkee  t.  Smitli 
<Mich.>  223. 

{  62.  A  mere  assemblage  of  persons  to  play 
and  witness  a  Sunday  ball  Kame  held  not  neces- 
sarily a  breach  of  the  peace  sufficient  to  au- 
thorize a  summary  arrest. — Terkes  r.  Smith 
<Mich.)  223. 

ARTESIAN  WELLS. 

.Authority  of  town  to  issue  bonds  for  slnlcing 
of.  see  Towns,  S  52. 

ASSAULT  AND  BATTERY. 

*  Inability  of  master  for  assault  by  servant,  see 
Master  and  Serrant,  {  302. 

I.  Civil.  UABILITT. 

(B)   Actloma. 

i  42.  Evidence  in  an  action  for  assault  and 
iMittery  held  to  entitle  plaintiff  to  go  to  the  jary. 
— Jones  V.  Sutherland  (Iowa)  901. 

U.   OBIMIKAX.    RE8FOMSXBIXJTT. 

(A)  Offenaea. 

S  48.  A  battery  must  be  both  willful  and 
unlawful.— State  v.  Magill  (N.  D.)  330. 

(B)  ProacevttoB  and  Pnnlahmeat. 

i  85.  Where,  on  a  trial  for  stabbing,  ac- 
-cused  introduced  evidence  that  complaining 
witness'  reputation  as  a  peaceable  citizen  was 
had,  the  state  held  entitled  to  show  in  contra- 
diction that  it  was  good.— Stevens  y.  State 
<Neb.)  58. 

f  85.  On  a  trial  for  stabbing,  evidence  to 
show  the  character  of  complaining  witness  held 
properly  excluded. — Stevens  y.  State  (Neb.)  58. 

i  85.  Where  one  charged  with  stabbing 
pleads  self-defense,  held,  that  the  state  may 
show  the  relative  size  and  phvsical  strength 
•of  the  parties,  together  with  the  complaining 
witness'  weakened  physical  condition.— Stevens 
T.  State  (Neb.)  58. 

I  85.  It  is  not  competent  to  show  in  the 
first  instance  the  good  character  of  the  prose- 
cuting witness.— State  v.  Magill  (N.  D.)  330. 

i  86.  On  a  trial  for  stabbing,  certain  evi- 
dence held  properly  excluded. — Stevens  v.  State 
<Neb.)  58. 

{90.  On  a  trial  for  stabbing,  held  proper 
to  permit  physician  to  testify  as  to  the  extent 
of  the  wound,  tending  to  show  the  intent. — 
Stevens  v.  State  (Neb.)  58. 

{  96.  Instruction  defining  "assault"  held  cor- 
rect.—Cressy  V.  Uepnblic  Creosoting  Co.  (Minn.) 
484. 

{  97.  Under  Pen.  (>de,  |  314,  held  that  a 
Terdict  was,  in  effect,'  for  a  simple  assault  only, 
as  it  did  not  find  the  essential  elements  of  as- 
sault with  intent  to  do  bodily  harm.— State  v. 
Peterson  (S.  D.)  667. 

ASSENT. 

To  granting  liquor  license,  see  Intoxicating 
liquors,  i  66. 

ASSESSMENT. 

Of  compensation  for  property  taken  for  pub- 
lic use,  see  Eminent  Domain,  {{  lOS-204. 

Of  damages,  see  Damafres,  {  216. 

Of  expenses  of  public  improvempnts,  see 
Drains,  «{  74-85;  lliKhwHys.  {  122;  Mu- 
nicipal   Corporations,    §|   407-514,    .504-578. 

Of  loss  on  insured,  see  Insurance,  {  184. 

Of  tax.  see  Taxation.  $$  ,32S>-420. 


ASSETS. 

Of  estate  of  decedent,  see  BKecuton  and  Ad- 
ministrators, {|  39-51. 

ASSIGNMENT  OF  ERRORS. 

See  Appeal  and  Errot,  {{  724-753. 

ASSIGNMENTS. 

Admeasurement  or  assignment  of  dower,  see 
Dower,  {  56. 

Admissions  of  assignor  as  evidence  against  as- 
signee, see  Evidence,  {  234. 

Capacity  of  corporation  to  take  by  assignment 
of  franchise  granted  to  individuals,  see  Cor- 
porations, {  &4. 

For  benefit  of  creditors,  see  Assignments  for 
Benefit  of  Creditors. 

Fraud  as  to  creditors,  see  Fraudulent  Ck>nvey- 
ances.  , 

Of  mortgage,  see  Mortgages,  (  249. 

X.  BEQinSITES  AMD  VAXIDITT. 

(A)  Property.  Siatates.  and  IUvI>t*  Aaalv"- 
able. 

Certificate  of  mortgage  foreclosure  sale  as  per- 
sonal property  assignable  by  executor,  see 
Executors  and  Administrators,  (  30. 

I  16.  An  assignment  of  a  city  officer's  sal- 
ary to  he  earned  after  the  assignment  is  void 
as  against  public  policy. — Duukley  t.  McCar- 
thy (Mich.)  126. 

{  23.  A  claim  against  a  foreign  corporation 
for  breach  of  a  ^aranty  of  machines,  held  en- 
forceable by  plaintiff  as  assignee. — Showen  v. 
J.  L.  Owens  Co.  (Mich.)  640. 

ASSIGNMENTS  FOR  BENEFIT  OF 
CREDITORS. 

See  Bankruptcy,  {{  278,  303. 

IV.  ADmiaSTRATION  OF  ASSIGNED 
ESTATE. 

§  278.  Evidence  held  to  show  that  a  com- 
mon-law assignee  for  benefit  of  creditors  had 
no  title  to  certain  goods  held  by  him. — Ovid 
Carriage  Co.  t.  Parsille  (Mich.)  99. 

ASSISTANCE,  WRIT  OF. 

Conclusiveness  of  Judgment  as  to  title  to  prop- 
erty involved,  see  Judgment,  {  720. 

ASSOCIATIONS. 

See  Beneficial  Associations;  Joint-Stock  Com- 
panies. 

Mutual  benefit  insurance  associations,  see  In- 
surance, {§  093-819. 

ASSUMPSIT,  ACTION  OF. 

8ee  Use  and  Occupation;    Work  and  Labor. 
As  proper  proceeding  to  enforce  aRreement  to 
assume  mortgage  debt,  see  Mortgages,  §  292. 

ASSUMPTION. 

Of  risk  by  employ^,  see  Master  and  Servant, 
§g  203-225,  288. 

ATTACHMENT. 

See  Execution ;   Garnishment 
Exemptions,  see  Homestead. 


For  cases  tn  Deo.  Dig.  A  Am«r.  Digs.  1M7  to  date  &  Indexes  see  same  topic  *  secUon  (J)  NUMBER 

Digitized  by  VjOOQ  IC 


1148 


122  NORTHWESTBRN  REPORTER. 


X.  HATVBE  AXD   OBOUHD8. 

(A)  Nature  of  RcmedVt  Canaea   of  Action, 
and  Partlea. 

S  8.  A  claim  for  nnliquidated  damages  for 
breach  of  warranty  held  sufficient  to  sustain  an 
attachment.— Showen  t.  J.  L.  Owens  Co.  (Mich.) 
640. 

X.  UABIUTIES    ON   BONDS   OB  ITN- 
DEBTAKING8. 

i  351.  In  actions  on  attachment  bonds,  at- 
torney's fees  need  not  be  reasonable  in  refer- 
ence to  the  actual  damages  sustained,  but  maj 
be  referred  to  the  exemplary  damages  in  addi- 
tion.—International  Harvester  Co.  of  America 
V.  Iowa  Hardware  Co.  (Iowa)  951. 

{  351.  Code  1897,  {  3887,  when  construed  in 
connection  with  sections  3880,  3885.  88SH.  held 
to  authorize  attorney's  fees  for  prosecuting  an 
action  on  an  attachment  bond,  but  not  for  dis- 
solution of  attachment. — Peters  v.  Snavely-Ash- 
ton  (Iowa)  836. 

XI.  WBONOFUI.  ATTAOHMENT. 

i  374.  In  an  action  for  wrongful  attachment, 
the  error,  if  any,  in  overruling  an  objection  to 
a  question  asked  of  plaintiff  as  a  witness  held 
not  prejudicial  in  view  of  the  answer. — Leader 
V.  Farmers'  Loan  &  Trust  Co.  (Iowa)  833. 

{  874.  In  an  action  for  wrongful  attachment, 
the  rejection  of  certain  evidence  held  proper, 
since  plaintiff's  title  to  the  property  did  not  de- 

§end  on  the  fact  sought  to  be  shown. — Leader  v. 
'armers'  Loan  &  Trust  Co.  (Iowa)  833. 

8  380.  In  an  action  for  wroneful  attadiment, 
an  instruction  held  not  misleading. — Leader  v. 
Fanners'  Loan  &  Trust  Co.  (Iowa)  833. 

ATTESTATION. 

Of  signature  to  statement  of  consent  to  sale 
of  Iiquois,  see  Intoxicating  Liquors,  f  66. 

ATTORNEY  AND  CLIENT. 

Argument  and  conduct  of  counsel  at  trial  in 
civil  actions,  see  Trial,  f§  107-133. 

Arguments  and  conduct  of  counsel  at  trial  in 
criminal  prosecutions,  see  Criminal  Law,  H 
706.  71B. 

Attorneys  in  fact,  see  Principal  and  Agent. 

Privileged  communications,  see  Witnesses,  §§ 
199,  202. 

Professional  statement  of  attorney  as  equiva- 
lent to  oath,  see  Oath,  8  4. 

n.  BETAINEB  AND  AUTHOBITT. 

8  100.  Payment  of  less  than  the  face  of  a 
judgment  to  one  without  authoritj^  to  settle 
the  judgment  held  invalid  as  a  satisfaction. — 
Fetz  y.  Leyendecker  (Mich.)  100. 

in.    DUTIES  AND  I.IABIX.ITIES  OF  AT- 
TOBNET  TO   CLIENT. 

8  125.  Where  plaintiff  acted  as  attorney  in 
matters  disconnected  with  the  boundary  line  be- 
tween two  lots,  one  of  which  he  purchased, 
held  he  '.7as  not  estopped  to  acquire  title  to  the 
land  in  dispute  by  adverse  possession. — Sanford 
V.  Flint  (Minn.)  315. 

8  125.  An  attorney  cannot  use  any  knowledge 
acquired  through  his  client  for  his  own  advan- 
tage, adverse  to  his  client,  even  though  the  re- 
lations have  ceased. — Sanford  v.  Flint  (Minn.) 
315. 

nr.  COMPENSATION  AND  UEN  OF 
ATTOBNET. 

(A)  Fees    and    Otlier    Remnneratlon. 

Recovery  in  action  on  attachment  bond,  see 
Attachment,  §  351. 


Recovery  in  malicious  prosecndon,  (M  Mali- 
cious Prosecution,  8  69. 

Validity  of  contract  for  divisions  of  fees  with 
laymen  securing  right  to  institute  actions  for 
third  persons  as  affected  by  public  policy, 
see  Contracts,  8  129. 

AUCTIONS  AND  AUCTIONEERS. 

Minutes  of  clerk  as  memoranda  within  statutes 
of  frauds,  see  Frauds,  Statute  of,  8  116. 

8  6.  Nature  of  anctioneer'a  powers  stated. — 
Kendall  v.  Boyer  (Iowa)  941. 

8  7.    The    conditions   of   a    public    sale    an- 
nounced   by    the    auctioneer   bmd    the    buyer, . 
whether  he  knew  of  them  or  not.— Kendall  y. 
Boyer  (Iowa)  9^1. 

8  7.  Formal  written  terms  of  public  sale 
distributed  prior  to  the  sale  may  be  modified 
or  added  to  by  the  auctioneer  at  the  beginning 
of  sale.— Kendall  v.  Boyer  (Iowa)  941. 

AUTHENTICATION. 

Of  record  for  purpose  of  review,  see  Appeal 
and  Error,  8  613. 


AUTHORITY. 


9,  T9, 


Of  agent,  see  Principal  and  Agent,  f{ 
99-124. 

Of  attorney,  see  Attorney  and  Client,  8  100. 

Of  broker,  see  Brokers,  8  14. 

Of  municipal  officers,  ^ee  Municipal  Corpora- 
tions, 8  16& 

Of  officer,  see  Officers,  8  103. 

AUTOMATIC  COUPLERS. 

On  railroad  cars  statnton^  requirements  in 
general,  see  Railroads,  §  29. 

AUTOMOBILES. 

On  streets,  injuries  caused  bjr  frightening  hors- 
es, see  Municipal  Cor;poration8,  88  705,  706. 

Opinion  evidence  in  action  caused  by  frighten- 
ing horses,  see  £2vidence,  8  471* 

AVULSION. 

Effect  on  boundaries  of  state  bordering  on 
stream,  see  States,  |  12. 

Materiality  and  certainty  of  evidence,  see  Evi- 
dence, §  144. 

BAILMENT. 

Embezzlement  or  larceny  by  bailee,   see   Ehn- 

bezzlement. 

Particular  speciet  of  iailmenti,  and  haHmenU 

incident  to  particular  occupationt. 
See  Banks  and  Banking,  §8  121-155;   Carriers, 
88  84-172;    Depositaries. 

BALL  GAMES. 

Playing  on  Sunday  as  ground  for  summary  ai^ 

rest,  see  Arrest,  8  62. 
Violation  of  Sunday  law,  see  Sunday,  8  29. 

BALLOTS. 

See  Elections,  8  184. 

In  election  to  determine  question  of  issuance 
of  county  bonds,  see  Counties,  8  178. 

BANKRUPTCY. 

See  Assignments  for  Benefit  of  Creditors. 


Topics,  divisions,  *  section  (i)  NUMBERS  In  thU  Index,  *  Dec  *  Amer.  Digs.  *  Reporter  ladans  acre* 

Digitized  by  LjOOQ  l€ 


IMDBZ-DIOEST. 


1U9 


m.  ASBIGITMEIIT.ADMIKISTRATIOX, 

AXD  DXSTRIBUTIOH  OF  BAKK- 

BUFT'S  ESTATE. 

(K)  Aotlons   Hy   or   Avstnat  Trt««tee. 

S  278.  In  order  for  a  trustee  in  bankruptcy 
to  recover  a  debt  on  behalf  of  the  estate,  the 
telation  of  debtor  and  creditor  must  have  exist- 
ed bet\veen  the  bankrupt  and  the  defendant, 
or  circnmstances  must  have  existed  which  equity 
would  hold  equivalent  to  such  relation. — Monroe 
T.  Bushnell  (Mich.)  508. 

{  308.  In  an  action  by  a  trustee  in  bank- 
mptcy  of  a  bank  to  recover  money  furnished 
by  the  bank  to  conduct  a  manufacturing  busi- 
ness under  a  contract  with  the  manufacturing 
corporation,  evidence  held  to  show  that  the  mon- 
ey was  not  furnished  to  defendant,  who  was 
the  manager  of  tho  corporation,  so  as  to  make 
him  a  debtor  of  the  bank,  but  was  procured  by 
the  bank's  president  for  the  company. — Monroe 
T.  Bushnell  (Mich.)  608. 

V.   BIGHTS,  BEMEDIEB,  AND  DIS. 
CHARGE  OF  BANKB17FT. 

i  435.  Answer  of  defendant  in  action  on  note 
held  not  to  justify  reply,  setting  up  fraud  in 
procuring  the  money  for  which  note  was  given. 
— Stiauch  v.  Flynn  (Minn.)  320. 

BANKS  AND  BANKING. 

n.  BANKIKG  COBPOBATXOXS  AHD 
ASSOCIATIONS. 

(D)  Ofllcera  and  Arents. 

Joinder  of  counts  in  indictment  in  prosecution 
for  violation  of  banking  laws,-  see  Indictment 
and  Information,  {  127. 

i  62.  In  a  trial  for  making  a  false  report 
of  the  bank  of  which  accused  was  cashier,  an 
instruction  held  sufficiently  restrictive. — Rutli  v. 
State  (Wis.)  733. 

i  62.  Under  an  information  charging  accus- 
ed with  making  a  false  report  of  the  oank  of 
which  he  was  cashier,  a  falsification  of  the  re- 
port as  to  one  item  held  a  violation  of  law 
independently  of  another  item.— Ruth  v.  State 
(Wis.)  733. 

m.  FUNCTIONS  AND   DEAX.INOS. 

(B)  Represeatatlon    of    Bank    br    Oaeers 
and  Avcnta. 

{  109.  The  apparent  scope  of  authority  of  the 
cashier  of  a  bank  held  to  include  power  to  make 
an  agreement  with  the  sureties  on  a  note  pay- 
able to  the  bank,  to  proceed  to  make  the  debt 
out  of  land  owned  by  the  maker.— Security  Sav. 
Bank  of  W^ellman  v.  Smith  (Iowa)  825. 

i  113.  A  bank  held  estopped  to  deny  the 
power  of  its  cashier  to  agree  with  sureties  of  a 
note  to  the  bank  to  proceed  against  the  mak- 
er's land  for  the  collection  of  the  note. — Security 
Sav.  Bank  of  Wellman  v.  Smith  (Iowa)  825. 

(C)  DepoBlta. 

Presentment  for  payment  and  notice  of  non- 
payment, see  Bills  and  Notes,  i|  404,  537. 

8  121.  Where  a  bank  cashier  without  the 
knowledge  of  a  depositor  substituted  his  per- 
sonal check  for  a  certificate  of  deposit,  reten- 
tion of  the  check  without  noticing  the  differ- 
ence for  several  months  held  not  a  waiver  of 
the  deposit. — Castello  v.  Citizens'  State  Bank 
of  Manawa  (Wis.)  709. 

i  121.  Facts  held  not  to  estop  plaintiff  to 
claim  that  a  transaction  with  defendant  bank 
was  a  time  deposit,  and  not  a  loan  to  the  cash- 
ier.—Castello  V.  Citizens'  State  Bank  of  Man- 
awa (Wis.)  769. 


I  145.  A  certified  check  in  the  hands  of  a 
bona  fide  holder  for  value  is  valid,  though  the 
maker  had  no  funds  in  the  bank  when  the 
check  was  certified,  and  the  statute  forbids  cer- 
tification under  such  circumstances. — First  Nat. 
Bank  v.  Union  Trust  Co.  (Mich.)  547. 

{  145.  The  original  holder  of  a  check,  who 
procures  the  certification  thereof,  may  be  a 
bona  fide  holder  for  value.— First  Nat.  Bank  y. 
Union  Trust  (3o.  (Mich.)  547. 

8  146.  The  payee  of  a  check,  who  procures 
its  certification  with  notice  or  knowledge  of 
facts  making  the  certification  dishonest,  is  not 
a  bona  fide  holder.— First  Nat.  Bank  v.  Union 
Trust  Co.  (Mich.)  647. 

i  145.  The  payee  of  a  check,  who  procures 
its  certification  with  knowledge  that  it  is  not 
certified  on  money  actually  deposited  in  the 
bank  to  the  maker's  credit,  but  on  collateral  de- 
posited with  the  bank,  is  not  a  bona  fide  hold- 
er.—First  Nat.  Bank  v.  Union  Trust  Co. 
(Mich.)   647. 

S  154.  A  printed  paragraph,  on  the  back  of  a 
certificate  of  deposit  purporting  to  be  an  inter- 
est agreement,  held  not,  as  a  matter  of  law,  a 
part  of  the  agreement  between  the  depositor  and 
the  bank. — Anderson  v.  First  Nat.  Bank  (Iowa) 
9ia 

8  164.  In  an  action  to  recover  a  bank  de- 
posit, whether  the  cashier  understood  that 
plaintiff  was  proposing  a  deposit  contract  and 
not  a  loan  to  the  cashier  held  for  the  jury. — 
Castello  V.  Citizens'  State  Bank  of  Manawa 
(Wis.)  769. 

8  154.  In  an  action  to  recover  a  bank  de- 
posit, evidenre  held  not  to  constitute  a  fatal 
variance  on  the  theory  that  it  showed  a  loan  to 
the  cashier,  and  not  a  deposit— Castello  v.  Citi- 
zens' State  Bank  of  Manawa  (Wis.)  769. 

8  156.  Certain  evidence  held  inadmissible  to 
show  notice  to  the  payee  of  a  check  of  the  il- 
legal certification  thereof. — First  Nat.  Bank  v. 
Union  Trust  Co.  (Mich.)  547. 

Ji  155.  In  an  action  by  the  payee  of  a  cer- 
tified check  against  the  bank  certifying  the 
same,  the  burden  held  to  be  on  plaintiff  to 
show  by  a  preponderance  of  the  evidence  that 
he  is  a  bona  fide  holder  of  the  check  and  the 
certification  thereon  for  value. — First  Nat. 
Bank  v.  Union  Trust  Co.  (Mich.)  547. 

IV.  NATIONAIi  BANKS. 

8  260.  Execution  of  a  bond  to  secure  coun- 
ty deposits  by  a  national  bank  held  not  to  in- 
crease the  liability  of  the  bank  in  violation  of 
Rev.  St.  8  5202  (U.  S.  Comp.  St  1901,  p. 
3494).— Board  of  Sup'rs  of  Gratiot  County  v. 
Munson  (Mich.)  117. 

VI.  I.OAN,  TRUST,  ANB  INVESTBIENT 
COMPANIES. 

8  311.  Laws  1883,  p.  133,  c.  107,  providing 
for  the  incorporation  of  trust  companies,  was 
expressly  repealed  by  Rev.  Laws  1905,  and 
the  provisions  of  section  11  were  re-enacted  in 
Rev.  Laws  190G,  8  3045.— State  v.  Barnes 
(Minn.)  11,  12. 

8  314.  On  trial  of  an  offloer  of  a  trust  com- 
pany, under  Rev.  Laws  1905,  8  3045,  for  ap- 
propriating the  company's  funds  by  becoming 
indebted  to  it,  guilty  iutent  may  be  inferred 
from  the  mere  fact  of  the  debt. — State  v. 
Barnes  (Minn.)  4. 

8  314.  An  indictment  against  an  officer  of 
a  trust  compafly  for  gi-and  larceny  held  to  state 
an  ofiiense,  under  Rev.  Laws  1905,  8  3045. — 
State  V.  Barnes  (Minn.)  11.  12. 


For  eases  In  Dec.  Dig.  &  Amer.  Digs.  1907  to  data  *  Indexes  sea  same  topic  *  saoUon  (t)  NUMBER 


Digitized  by  VjOOQ  IC 


1160 


122  NORTHWESTERN  REPORTER. 


BAR. 

Of  action  by  fonner  adjadication,  see  Judg- 
ment, §§  564-TOO. 

Of  action  by  limitation,  see  Limitation  of  Ac- 
tions, §  165. 

Of  allowance  to  BarrlTine  wife,  see  Executors 
and  Administiatora,  }  186. 

BASEBALL 

Playing  on  Sunday  as  ground  for  summary  ar- 
rest, see  Arrest,  {  62. 

BATTERY. 

See  Assault  and  Battery. 

BENEFICIAL  ASSOCIATIONS. 

Mutual  benefit  insurance  associatiwiB,  see  In- 
surance, §§  693-^19. 

Special  or  local  laws  relating  to  incorporation, 
see  Statutes,  {  80. 

I  18.  Where  an  aid  society  by  constitution 
and  by-laws  prohibits  its  members  from  be- 
longing to  another  society  not  approved  by  the 
Catholic  Church,  it  waives  the  provisious  by 
accepting  dues  from  a  member  knowing  of  his 
membership  in  an  unapproved  society. — Dorff 
V.  St.  Adefbert's  Aid  Society  (Mich.)  82. 

BENEFITS. 

Acceptance  of,  as  ground  of  estoppel,  see  Es- 
toppel, { .63. 

BEQUESTS. 

See  Wills. 

BEST  AND  SECONDARY  EVIDENCE. 

In  civil  actions,  see  Evidence,  IS  157-186. 
In  criminal  prosecutions,  see  Criminal  Law,  $ 
400. 

BIAS. 

Of  witness,  see  Witnesses,  {  372, 

BIDS. 

For  municipal  contracts,  see  Municipal  Corpo- 
rations, I  241. 

BILL  OF  EXCEPTIONS. 

See  Exceptions,  Bill  of. 

BILL  OF  EXCHANGE. 

See  Bills  and  Notes. 

BILL  OF  LADING. 

Parol  evidence  to  contradict,  see  Evidence,  i 
407. 

BILL  OF  REVIEW. 

See  Equity,  Sf  442,  447. 

BILLS  AND  NOTES. 

Parol   evidence  to  contradict,  see  Evidence,   I 

402. 
Parol    or    extrinsic    evidence    showing    release 

from  liability,  see  Evidence,  |  466. 

I.  BEQTJZ8ITE8  AND   VALIDITT. 

(C)  Ezeentlon  and  DeUverr. 

g  63.  Evidence  held  not  to  stow  a  delivery 
of  promiBsory  notes,  rendering  the  malcer  not 
liable  thereon.— Sheffer  v.  Fleischer  (Mich.)  543. 


(F)  TaUdltr. 

Admissions  as  evidence,  see  E>vidence,  I  235. 

I  101.  A  note  signed  by  the  maker  while 
intoxicated  held  voidable. — Benton  v.  Sikyta 
(Neb.)  61. 

n.  ooirsTBuoTioir  and  opebatiok. 

I  120.  Individuals  buying  a  horse  and  exe- 
cuting notes  for  the  price  held  jointly  and  sev- 
erally liable.— Rumsey  v.  Fox  (Mich.)  526. 

IV.  KEOOTIABIUTTAinD  TRANSFER. 

<A)  iBStrnments  Negotiable. 

I  146.  Negotiable  instruments  act  (Comp. 
St.  19()9,  c.  41)  does  not  apply  to  actions  on'  in- 
struments executed  before  it  took  effect — ^Dor- 
sey  v.  Wellman  (Neb.)  989. 

V.  RIGHTS  Ain>  I.IABII.ITIB8  OH  IK- 

DORSEMENT   OR  TRANSFER. 

(D)  Bona  Fide  Purchaaers. 

(  335.  The  Indorsee  of  a  note  given  for  the 
right  to  make  or  vend  a  patented  article  held 
to  take  subject  to  the  defenses  between  the 
original  parties  if  he  knew  of  its  considera- 
tion, though  the  note  is  not  indorsed  "Given 
for  a  patent  right." — Benton  t.  Sikyta  (Neb.) 
61. 

I  837.  Cobbey's  Ann.  St.  1907,  {  9255,  held 
not  to  change  the  law  as  to  what  constitutes 
bad  faith  in  the  purchase  of  a  negotiable  iu- 
strument— Benton  v.   Sikyta  (Neb.)  61. 

{  342.  Where  the  indorsement  of  a  note  in 
the  possession  of  the  payee  had  l>een  crossed 
out,  held  that  there  it  was  sufficient  to  require 
a  prospective  purchaser  to  make  reasonable  in- 
quiry as  to  the  ownership  of  the  note. — Minnea- 
polis Threshing  Mach.  Co.  v.  Gilruth  (Minn.) 
466.  .  V  ' 

i  363.  Where  a  note  is  valid  between  the 
original  parties,  an  indorsee  who  holds  it  as 
collateral  held  entitled  to  recover  the  amount 
thereof.— Benton  v.  Sikyta  (Neb.)  61. 

VI.  PRESENTMENT,  DEMAND,  NO- 
TICE, AND   PROTEST. 

i  404.  Facts  held  to  show  that  demand  of 
payment  of  a  certificate  of  deposit  and  notice  of 
nonpayment  were  not  made  within  a  reason- 
able time  so  as  to  hold  the  indorsers,  within 
Code  Supp.  1907,  §§  3060-a7,  3060-a71,  3060- 
al93.— Anderson  v.  First  Nat.  Bank  (Iowa)  91& 

Vm.  ACTIONS. 

Evidence  of  fraud  in  action  against  surety,  see 

Principal  and  Surety,  |  161. 
Nature  of  action,   whether  legal  or  equitable, 

see  Action,  §  25. 
Parol   or   extrinsic  evidence,    see   Evidence.   I 

462. 

g  443.  The  owner  of  a  note,  in  which  a 
third  person  is  named  as  payee,  may  sue  there- 
on, without  endorsement,  upon  proof  of  own- 
ership.— Spreng  v.  Juni  (Minn.)  1015. 

i  616.  Evidence  in  an  action  on  a  note  fteM 
to  sustain  a  verdict  for  plalntifF. — Snrenc  t. 
Juni  (Minn.)  1015. 

g  637.  Whether  a  certificate  of  deposit  was 
presented  for  payment  within  a  reasonable  time 
held,  under  the  evidence,  a  question  of  bict. — 
Anderson  v.  First  Nat.  Bank  (Iowa)  818. 

BOARD. 

Of  guardian  of  insane  person  as  chaq^  against 
estate  of  ward,  see  Insane  Persons,  |  (& 


Topioa.  divlilons,  ft  ircUon  (|)  NUMBERS  In  this  Index,  *  Dee.  *  Amer.  Digs.  *  Reportw  Indezw 

Digitized  by  LjOOQ  l€ 


Ura>BX-DI6BBT. 


U51 


BOARD  OF  HEALTH. 

8e*  Health. 

BONA  FIDE  PURCHASERS. 

Of  bill   of   exchonce   or   promissory   note,   see 

Bills  and  Notes,  §g  335-363. 
Of  certified  checks,  see  Banks  and  Banking,  i 

143. 
Of  lands,  see  Vendor  and  Purcbaser,  H  224, 

231. 

BONDS. 

Bond  of  bank  for  payment  of  dejrasit  of  coun- 
ty funds  as  constituting  illegal  increase  of 
liability,  see  Banks  and  Banking,  §  260, 

Municipal   bonds,   see  Municipal   Corporations, 


H  907-9ia 

Of  "■ 


liquor  dealers,  see  Intoxicating  liquors,  { 
88. 

Of  municipal  contractors,  see  Municipal  Cor- 
porations, i  347. 

Sureties  on  bonds,  see  Principal  and  Surety. 

Township  bonds,  see  Towns,  $  52. 

Bondt  for  performance  of  duties  of  tr«*t  or 

office. 
See  Deporitaries,  H  7,  14 ;   Executon  and  Ad- 
ministrators,  J  635. 

Bondt  in  judicial  proceeding*. 
See   Appeal   and   Error,   {g   374,   1227,   1244; 
Attachment,  §  351 ;    Injunction,  |  148. 

n.   COMSTBtrOTIOII  AKS  OFEBATIOH. 

{  62.  Held,  that  the  interest  of  third  per- 
sona appeared  on  the  face  of  a  contract  made 
in  the  name  of  another  for  their  benefit,  and 
that  they  were  entitled  to  sue  thereon.— Mich- 
aud  T.  Erickson  (Minn.)  324. 

BOOKS  OF  ACCOUNT. 

Documentary  evidence,  see  Evidence,  S  354. 

BOUNDARIES. 

Of  city,  see  Municipal  Corporations,  {  25. 
Of  state,  see  States,  {  12. 

I.  DESCRIPTION. 

i  15.  The  owner  of  a  bank  of  a  navigable 
stream  owns  to  the  center  of  the  stream,  unless 
the  ownership  of  the  bank  and  the  bed  of  the 
stream  has  been  separated,  subject  only  to  gov- 
ernmental and  public  rights,  and  the  bed  of  a 
navigable  stream  is  land. — Green  Bay  &  Mis- 
sissippi Canal  Co.  v.  Telulah  Paper  Co.  (Wis.) 
1062. 

I  18.  The  owner  of  land,  bordering  on  a 
nonnavigable  lake  in  this  state  meandered  by 
government  surveyors,  has  title  to  the  water's 
edge,  and  not  to  the  center. — State  v.  Jones 
(Iowa)  241. 

XI.  EVIPEWOE.  ascertahtment.  Aim 
E8TABI.ISHMENT. 

f  36.  In  a  suit  involving  the  location  of  a 
boundary  line,  evidence  of  adverse  possession 
is  competent  to  show  the  true  location  of  the 
line.— Stark  r.  Duhring  (WU.)  1131. 

BREACH. 

Of  conditions,  see  Insurance,  §1336-365. 

Of  contract,  see  Contracts,  n  278-323 ;    Sales, 


11161-182. 
Of  c 


covenant,  see  Insurance,  H  3.36-365. 

Of  warranty,  see  Insurance,  U  283,  285,  336- 
366;    Sales,  »  261.  427-146. 


BRIDGES. 

Appropriation  of  state  money  for  construction 
and  repair  of  bridges  as  violation  of  constitu- 
tional prohibition  against  state  becoming  a 
party  to  internal  improvement,  see  States,  | 
119. 

I.   E8TABI.I8HBCEirT,  OOITSTRTTCTION, 
AKD  MAIHTENAMGE. 

t  6.  Pub.  Acts  1007,  p.  41,  No.  37,  g  3, 
amending  Comp.  Laws  1^,  {  4169,  held  re- 
pealed by  implication  by  Acts  1907,  p.  125,  No. 
108,  repealing  Comp.  Laws  1897,  U  4072-4103. 
— Reimink  v.  Strabbing  (Micb.)  183. 

n.  REOuiiATioir  Axn  use  for 

TRAVEIi. 

I  3a  Under  Loc.  Acts  1889,  p.  1,  No.  278, 
creating  the  Bay  county  bridge  commission,  the 
commission  is  not  governed  by  Comp.  Laws 
1897,  Sg  3441,  3443,  renderinjg  corporations 
having  a  duty  to  keep  bridges  in  repair  liable 
for  neglect  so  to  do. — Scharman  v.  Bay  County 
Bridge  Commission  (Mich.)  1098. 

g  39.  A  town,  which  has  agreed  with  an  ad- 
joining township  to  divide  a  line  road  for  the 
purpose  of  repair,  held  liable  for  neglect  to  re- 

§air,   though   it  failed  to  properly  record  evi- 
ence  of  the  contract,  as  required  by  the  stat- 
ute.—Hunter  V.  Dwight  Tp.  (Mich.)  267. 

g  41.  PlaintifTs  son  rode  on  a  bicycle 
through  an  open  draw  at  a  bridge,  and  was 
drowned.  There  were  no  chains  at  the  bridge, 
and  the  accident  occurred  in  the  nighttime. 
Held,  that  a  judgment  directed  for  defendant 
would  be  affirmed  by  divided  court. — Scharman 
V.  Bay  County  Bridge  Commission  (Micb.)  10^. 

g  46.  Evidence  of  an  expert  as  to  method  of 
examining  a  bridge  to  determine  the  condition 
of  the  timbers,  held  relevant  on  the  issue  of  the 
county's  negligence  in  failing  to  discover  its 
condition.— Greenway  v.  Taylor  County  (Iowa) 
943. 

I  46.  An  instruction,  in  an  action  for  in- 
juries caused  by  the  collapee  of  a  bridge,  held 
not  erroneous.-— Greenway  v.  Taylor  County 
(Iowa)  943. 

S  46.  In  an  action  for  Injuries  sustained  on 
a  bridge,  held,  that  defendant  wa.s  not  injured 
by  an  instruction. — Hunter  v.  Dwight  Tp. 
(Mich.)  267. 

g  46.  In  an  action  for  injuries  sustained  on 
a  bridge,  held,  that  a  contention  that  the  testi- 
mony failed  to  show  that  the  injury  was  due  to 
the  negligence  alleged  was  not  warranted. — 
Hunter  v.  Dwight  Tp.  (Mich.)  267. 

g  46.  In  an  action  against  a  township  for 
injuries  sustained  on  a  oridge,  evidence  as  to 
notice  of  its  dangerous  condition  held  sufficient 
to  require  submission  to  the  jury. — Hunter  v. 
Dwight  Tp.   (Mich.)   267. 

BRIEFS. 

Expenses  of  as  costs,  see  Costs,  g  258. 
On  appeal  or  writ  of  error,  see  Appeal  and 
Error,  g  758. 

BROKERS. 

See  Principal  and  Agent 

n.  EMFLOTMENT  AITD  AVTHORITT. 

g  14.  Under  contract  between  a  landowner 
and  broker,  held,  that  the  broker  had  the  sole 
right  to  fix  the  selling  price  of  the  land,  pro- 
vided it  was  not  less  than  the  scheduled  value, 
and  that  the  owner  could  not  arbitrarily  refuse 
to  approve  sales  for  the  reason  that  the  prices 


rot  cues  In  Dm.  Dig.  *  Aoer.  Digs.  U07  to  data  *  Indexes  see  sun*  tople  *  section  (|)  NUMBER 


Digitized  by  VjOOQ  l€ 


1152 


122  NORTHWESTERN  REPORTER. 


were  not  satisfactotr  to  him.— YooDg  t.  Met- 
calf  Land  Co.  (N.  D.)  1101. 

{  14.  Where  land  is  gimplr  listed  for  sale 
with  an  agent,  the  owner  onljr  can  sell:  the 
agent  having  no  authority  himself  to  sell  the 
land,  nnless  duly  authorized  in  writing,  as  re- 
quired by  Bev.  Civ.  Code,  |  1238,  subd.  6.— 
Watters  v.  Dancey  (S.  D.)  490.   ■ 

IV.   OOMFEKBATIOir  AXD  JAES. 

S  48.  A  broker,  employed  to  procure  a  pur- 
chaser of  real  estate,  held  not  entitled  to  re- 
cover commissions,  in  the  absence  of  a  show- 
ing that  the  sale  made  by  the  owner  was  made 
in  fraud  of  the  broker's  rights.— Cook  t.  Whit- 
ing (Iowa)  835. 

f  48.  For  a  broker  to  recover  commissions 
on  the  sale  of  land,  he  mast  prove  that  he  has 
brought  to  the  owner  a  purchaser  ready  and 
able  to  enter  into  a  contract  to  purchase  on 
the  prescribed  terms,  or.  In  lieu  of  present- 
ing such  purchaser,  must  show  that  he  nas  ob- 
tained a  contract  in  favor  of  the  owner  which 
is  valid  and  enforceable  by  the  owner  himself. 
—Watters  v.  Dancey  (S.  D.)  430. 

8  54.  A  broker  employed  to  sell  land  for 
cash  must  show,  in  an  action  for  commissions, 
that  the  purchaser  had  cash  in  hand ;  evi- 
dence that  he  had  an  abundance  of  property  out 
of  which  the  required  payment  might  be  made, 
not  sufficing  to  show  that  he  was  ready  and 
willing  to  purchase. — Watters  t.  Dancey  (S. 
D.)  430. 

S  63.  A  real  estate  agent  having  been  pre- 
vented by  the  owner  from  making  sales  is  en- 
titled to  the  profits  he  would  have  made  had  the 
offers  for  the  lands  been  accepted,  and  sales 
approved  by  the  owner. — Young  v.  Metcalf  Land 
Co.  (N.  D.)  1101. 

I  65.  The  right  of  a  broker  to  his  commis- 
sions is  not  forfeited  by  an  attempt  to  sell 
other  real  estate  to  the  same  purchaser. — 
Lemon  v.  Macklem  (Mich.)  77. 

V.  ACTIONS  FOB  OOMPSNSATION. 

(  82.  In  an  action  by  a  broker  for  commis- 
sions, it  is  competent  to  prove  that  the  sale 
was  made  through  another  broker. — Cook  t. 
Whiting  (Iowa)  835. 

{  86.  In  an  action  by  a  broker  for  commis- 
sions for  sending  a  purchaser  to  defendant,  evi^ 
dence  for  defendant  held  to  contradict  plain- 
tiff's assertion  that  he  knew  the  purchaser, 
and  bad  sent  him  to  defendant'a  place. — Bar- 
endsen  t.  Wilder  (Mich.)  355. 

BUILDING  CONTRACTS. 

See  Contracts,  U  250,  261,  280,  305,  319. 

BULK  STOCK  LAWS. 

See  Fraudulent  Conveyances,  §{  238,  241,  25& 

BUSINESS. 

Injury  to  as  ground  for  mandamus  to  compel 
enforcement  of  criminal  statutes,  see  Manda- 
mus, i  23. 

BY-LAWS. 

Of  mutual  benefit  insurance  association,  see  In- 
surance, If  693,  805. 

CALENDARS. 

Computation  of  time,  see  Time. 


CANCELLATION  OF  INSTRUMENTS. 

See  Quieting  Title. 

Power  of  eqnltT  to  cancel  deed  so  as  to  give 

complete  relief,  see  Equity,  g  39. 
Setting     aside     fraudulent     conveyances,     see 

Fraudulent  Conveyances,  {{  239-301. 

(Jround*  for  cancellation  and  cancellation  or 

re*ci**ion  of  particular  instrument* 

hy  acft  of  parties. 

Certificate  of  stock  in  partnership  association, 

see  Joint-Stock  Companies,  {  7. 
Contracts  for  sale  of  goods,  see  Sales,  H  119- 

131. 
Contiacta  in  general,   see   Contracts,   |f   iSO- 
274. 

H.  PBOOEEDIMOS  AHB  BEXJEF. 

8  45.  The  presumptions  of  validity  attach- 
ing to  a  written  instrument,  where  signed  in 
the  presence  of  witnesses  and  acknowledged, 
held  to  require  convincing  evidence  to  set  it 
aside  for  fraud. — Bingaman  v.  Bingaman  (Neb.) 
981. 

I  66.  In  proceedings  to  cancel  a  deed  to  22 
40  s,  because  of  misrepresentation  as  to  one 
of  the  40's  where  defendants  failed  to  offer 
evidence  from  which  the  court  could  vacate  the 
deed  as  to  the  single  40  and  require  a  propor- 
tionate return  of  the  consideration  upon  its  an- 
nouncing the  sufficiency  of  the  evidence  to  war- 
rant setting  aside  the  deed  as  to  the  one  40, 
it  was  not  error  to  vacate  the  deed  as  an  en- 
tirety and  require  restoration  of  the  full  con- 
sideration.—Kathan  T.  Comstock  (Wia.)  1044. 

CANDIDATES. 

For  office,  see  Elections,  |  120. 

CARNAL  KNOWLEDGE. 

See  Rape. 

CARRIERS. 

X.    CONTBOX.Ain>BEOUIJiTIOXOF 
COMMON  CABBIEBS. 

(A)  !■  General. 

Amendment  of  statute,  see  Statutes,  {  139. 

Law  authorizing  recovery  of  penalty  for  de- 
lay in  transirartation  of  live  stock  as  denial 
of  due  process  of  law,  see  Constitutional 
Law,  §  303. 

Negligence  of  railroad  company  bringing  glan- 
dered  horse  into  state  as  proximate  cause  of 
injury  to  subsequent  purchaser,  see  Negli- 
gence, I  56. 

Partial  invalidity  of  statute,  see  Statutes,  |  64. 

Presumption  as  to  validity  of  regulations,  see 
Constitutional  Law,  i  48. 

I  2,  The  Legislature  may  provide  that  a 
shipper  of  live  stock  may  recover  liquidated 
damages  from  a  carrier  for  failure  to  trans- 
port such  stock  committed  to  the  carrier  for 
transit  between  stations  in  Nebraska. — Cram 
V.  Chicago,  B.  &  Q.  R.  Co.  (Neb.)  31. 

S  2.  Const  art  11,  f  4,  does  not  prohibit 
the  Legislature  from  increasing  the  common- 
law  liability  of  common  carriers. — Cram  v.  Chi- 
cago, B.  &  Q.  R.  Co.  (Neb.)  31. 

§  2.  Cobbey's  Ann.  St  1907,  f§  10,606, 
and  10,607,  rendering  a  railroad  liable  for  de- 
lay in  the  shipment  of  live  stock,  are  consti- 
tutional.— Kyle  v.  Chicago,  B.  &  Q.  H.  Co. 
(Neb.)  37. 

i  12.  A  court  of  equity  should  not  hold  in- 
valid an  act  of  the  Legislature  fixing  maximum 
rates  of  a  carrier  until  a  fair  trial  has  been 
made  of  continuing  business  under  the  statute. 


Topics,  divisions,  ft  section  ({)  NUMBERS  In  this  Index,  ft  Dec.  ft  Amer.  Digs,  ft  Reporter  Indexes  agree 


Digitized  by  LjOOQ  l€ 


INDEX-DIGEST. 


1153 


—State    v.    Adama    Bxpreaa    Co.    (Neb.)    691; 
Same  v.  Wells,  Fargo  &  Co.  (Neb.)  697. 

§  12.  Statntes  prescribing  maximum  rates 
for  a  carrier  held  not  to  be  declared  invalid  as 
unreasonable  and  confiscatory  without  a  full 
disclosure  of  all  tbe  revenue  and  disbursements 
of  the  carrier.— State  v.  Adams  Express  Co. 
(Neb.)  691 ;  Same  v.  Wells,  Fargo  &  Co.  (Neb.) 
697. 

I  1&  Where  it  appears  from  all  the  evidence 
that  the  maximum  statutory  rates  allowed  to  a 
carrier  are  not  confiscatory,  but  afford  at  least 
some  profit,  the  courts  will  not  interfere,  but 
will  require  the  party  complaining  to  apply  else- 
where for  relief. — State  v.  Adams  Express  Co. 
^b.)  691 ;    Same  v.  Wells,  Faiigo  &  Co.  (Neb.) 

t  20.  Judgment  against  carrier  for  delay 
in  shipment  of  live  stock  held  not  sustained  by 
the  evidence.— Cram  v.  Chicago,  B.  &  Q.  R.  Co. 
(Neb.)  31. 

XX.  CABRIAOE  OF  GOODS. 

(B)  Bills  of  lAdinVi  Slilpplnv  Reoetpts, 
«ad  SpceUU  Contracts. 

Parol  evidence  to  contradict  bill  of  lading,  see 
Evidence,  (  407. 

(D)  Tnunaportatlon   aAf  DellTery  bT 
Carrier. 

I  84.  A  railroad  contracting  to  haul  logs 
held  required  to  deliver  the  logs  in  accordance 
with  the  custom  established  prior  to  the  exe- 
cution of  the  contract  and  continued  subse- 
quently.—Gates  T.  Detroit  &  M.  Ry.  Co.  (Mich.) 
1078. 

(F)  Ijoas  of  or  InJnrT'  to  Oooda. 

{  133.  It  is  the  duty  of  a  carrier  to  provide 
reasonably  safe  buildmgs  In  which  property 
transported  over  its  road  may  t>e  securely  stor- 
ed, and  the  facts  showing  the  character  and  lo- 
cation of  the  building,  materials  out  of  which 
it  was  built,  and  its  liability  to  take  fire  are 
proper  to  be  laid  before  the  jury  for  the  pur- 
pose of  showing  that  the  building  was  not 
reasonably  safe.— Bates  y.  CUcago,  M.  &  St 
P.  Ry.  Co.  (Wis.)  745. 

S  136.  In  an  action  against  a  carrier  to  re- 
cover loss  of  freight,  evidence  held  to  sustain 
verdict  for  $66.— Harrington  v.  Wabash  R.  Co. 
(Minn.)  14. 

§  136.  Neglect  of  shipper  to  disclose  con- 
tents of  a  l>ox  offered  for  shipment  held  a  fraud 
on  the  carrier,  if  there  is  anything  in  its  char- 
acter likely  to  throw  the  carrier  off  its  guard. 
—Harrington  v.  Wabash  R.  Co.  (Minn.)  14. 

f  136.  In  the  absence  of  more  definite  in- 
formation, a  carrier  has  the  right  to  accept  the 
shipper's  marks  as  to  the  contents  of  a  pack- 
age offered  for  transportation. — Harrington  t. 
Wabash  R.  Co.  (Minn.)  14. 

d)  CoBBOOtlns  Carriers. 

i  172.  A  local  express  company,  receiving 
property  for  delivery  to  the  carrier  to  be  trans- 
ported to  another  state,  held  the  agent  of  the 
■liipper  for  the  giving  of  the  information  nec- 
essary for  the  shipment. — Harrington  v.  Wa- 
bash R.  Co.  (Minn.)  14. 

XH.  OARBXAOE  OF  XJVE  STOCK. 

IMscretion  of  conrt  as  to  admission  of  re- 
buttal evidence  in  action  for  delay  of  ship- 
ment, see  Trial,  {  63. 

Li«w  authorizing  penalty  for  delay  as  depriva- 
tion of  property  without  due  process  of  law, 
see  C!onstitutional  Law,  {  303. 

R^rulations  interfering  with  interstate  com- 
merce, see  Commerce,  |  61. 


nr.   CABBIAOE  OF  PASSEiraEBS. 

(D)  Persoaal  Injuries. 

Submission   of  special    interrogatories   to  Jnry 
in  action  for,  see  Trial,  f  360. 

,8  280.  The  degree  of  care  required  from  car- 
riers of  passengers  upon  street  cars  in  securing 
the  safety  of  passengers  entering  or  alighting 
is  the  highest  care,  or  that  which  a  very  pru- 
dent person  would  have  used  under  the  cir- 
cumstances.—Beattie  v.  Detroit  United  By. 
(Mich.)  657. 

I  280.  It  is  the  duty  of  a  street  car  com- 
pany to  stop  to  take  on  or  let  off  passengers, 
the  time  of  stoppage  being  such  as  to  enable 
the  passenger  to  reach  a  place  of  safety,  ei- 
ther on  the  street  or  in  the  car  before  It  is 
started.— Beattie  t.  Detroit  United  Ry.  (Mich.) 
557. 

8  286.  A  railroad  company  held  to  have  per- 
formed its  duty  to  prevent  j)assengers,  etc, 
from  crossing  its  yards  in  going  to  Its  depot, 
so  that  one  used  the  dangerous  way  at  Iiis 
peril. — Perego  v.  Lake  Shore  &  M.  S.  Ry.  C!a 
(Mich.)  635: 

i  286.  Where  the  carrier  performed  its  full 
duty  in  providing  a  safe  way  for  passengers 
to  approach  and  leave  its  depot  without  cross- 
ing the  tracks  in  its  yards,  it  would  be  liable 
for  injury  to  one  ^oing  in  a  way  not  provided 
only  if  cansed  by  its  gross  negligence. — Perego 
v.  Lake  Shore  &  M.  S.  Ry.  Co.  (Mich.)  6^. 

{  286.  In  an  action  against  a  railroad  com- 
pany for  injuries  to  a  passenger  in  an  alleged 
dangerous  baggage  room,  the  defense  that  the 
construction  of  the  room  was  a  question  of 
judgment  in  the  construction  held  not  avail- 
able; it  l>eing  defendant's  duty  to  have  the 
room  reasonably  safe.— Bates  v.  Cliicago,  M. 
&  St  P.  Ry.  Co.  (WU.)  746. 

I  287.  A  street  car  conductor  held  negligent 
as  matter  of  law  in  starting  his  car  yfbiie  a 
passenger  was  boarding  it  and  before  he  had 
time  to  reach  the  platform,  resulting  in  his  in- 
jury.— Beattie  v.  Detroit  United  By.  (Mich.) 
557. 

I  303.  A  carrier  held  to  owe  a  very  high  de- 
^ee  of  care  to  protect  its  passengers  alight- 
ing from  one  car  against  the  danger  of  collision 
from  a  moving  car  on  another  track. — Bloom  v. 
Sionz  City  Traction  Co.  (Iowa)  831. 

i  303.  Evidence,  in  an  action  for  injuries  to 
a  street  car  passenger  after  a:lighting  from  a 
car,  held,  as  a  matter  of  law,  not  to  show  neg- 
ligence.—Bloom  V.  Sioux  City  Traction  Co. 
(Iowa)  831. 

i  303.  In  an  action  for  the  death  of  a  boy 
who  was  killed  while  crossing  defendant's 
yards  after  alighting  from  a  passenger  train, 
defendant  held  not  guilty  of  gross  negligence 
because  its  fireman  did  not  notify  the  engi- 
neer of  the  boy's  presence,  or  for  its  failure  to 
keep  a  lookout  on  the  front  of  the  backing 
switch  engine.— Perego  t.  Lake  Shore  &  M.  S. 
Ey.  Co.  (Mich.)  535. 

{  306.  The  proximate  cause  of  an  injury  to 
a  street  car  passenger  after  alighting  from  a 
car  held  her  stumbling  on  the  space  between 
the  tracks.— Bloom  v.  Sioux  City  Traction  Co. 
(Iowa)  831. 

i  316.  In  an  action  against  a  railroad  for 
injuries  to  a  passenger  In  an  alleged  unsafe 
baggage  room,  the  burden  of  proving  that 
plaintiff  must  have  seen  and  ought  to  have 
avoided  the  danger  held  to  be  on  defendant. — 
Bates  V.  Chicago,  M.  &  St  P.  Ry.  Co.  (Wis.) 
745. 

i  318.  In  an  action  for  injuries  to  a  pas- 
senger, evidence  held  to  sustain  a  finding  that 


For  cuss  m  Pec.  Dig.  *  Amer.  Digs.  U07  to  teU  It  Indaxes  see  same  toplo  *  secUoa  (i)  NUUBBB 
122N.W.— 78 


Digitized  by  LjOOQIC 


1154 


122  NORTHWESTERN  REPORTER. 


the  engineer,  In  construing  certain  written  or- 
ders, was  not  guilty  of  negligence.— Willard  v. 
Iowa  Cent.  Ry.  Co.  (Minn.)  168. 

8  318.  In  an  action  for  injuries  to  a  passen- 
ger, evidence  held  to  sustain  verdict  for  plain- 
tiff.—Newbury  V.  Great  Northern  Ry.  Co. 
(Minn.)  1117. 

§  320.  In  an  action  for  injuries  to  a  passen- 
ger, whether  engineer  of  train  placed  proper 
construction  on  his  written  orders  held  a  ques- 
tion for  the  jury.— Willard  v.  Iowa  Cent  Ry. 
Co.  (Minn.)  160. 

i  320.  While  it  is  the  duty  of  a  railroad  to 
have  its  depot  open  and  lighted  for  the  con- 
venience of  passengers,  it  is  for  tlie  jury 
whether  in  a  particular  case  the  road  was  neg- 
ligent in  failing  to  have  such  lights.— Bates  t. 
Chicago,  M.  &  St  P.  Ry.  Co.  (Wis.)  745. 

i  320.  In  an  action  ag;ainst  a  railroad  for 
injuries  to  a  passenger  in  a  baggage  room, 
whether  the  room  was  reasonably  safe  for  the 
use  of  passengers  identifying  baggage  held, 
under  the  evidence,  for  the  jury. — Bates  v.  (Chi- 
cago, M.  &  St.  P.  Ry.  Co.  (Wis.)  745. 

(IB)  Oontrlbntory   NeKUarence  of  Person 
Injured. 

f  333.  A  bright  eight  year  old  boy  who  was 
injured  by  running  before  a  switch  engine 
while  going  through  defendant's  yards  after 
alighting  from  a  passenger  train  held  guilty 
of  contributory  negligence. — Perego  T.  Xake 
Shore  &  M.  S.  Ry.  Co.  (Mich.)  535. 

8  833.  Plaintiff,  a  passenger,  injured  in  de- 
fendant's station,  held  guilty  of  contributory 
negligence.— Speck  v.  Northern  Pac.  Ry.  Co. 
(Minn.)  497. 

8  333.  A.  person  alighting  from  a  street  car 
moving  at  the  rate  of  six  miles  an  hour  held 
negligent— Fosnes  v.  Duluth  St  Ry.  Co.  (Wis.) 

I  339,  An  accident  to  a  street  car  passen- 
ger after  alighting  from  a  car  held  not  to  have 
been  caused  by  her  contributory  negligence. — 
Bloom  V.  Sioux  City  Traction  Co.  (Iowa)  831. 


CATTLE. 


See  Animals. 


CAUSE  OF  ACTION. 

See  Action ;   Attachment,  {  8 ;   Malicions  Pros- 
ecution, 8!  18-24. 

CERTAINTY. 

In  contract,  see  Omtracts,  8  9. 
Of  evidence  affecting  its  materiadity,  see  Evi- 
dence, 8  I^- 

CERTIFICATE. 

As  evidence,  see  Evidence,  8  332. 

Of  corporate  stock,  see  Corporations,  8  99. 

Of  mortgage  foreclosure   as   personal   proi)erty 

assignable    by    executor,    see    Executors    and 

Administrators,  8  39. 
Of  record   for   purpose  of  review,   aee  Appeal 

and  Error,  SS  613,  616. 
Of  sale  for  taxes,  see  Taxation,  8  686. 

CERTIORARI. 

Revieu)  in  particular  proeeedingt. 
Assessment  of  city  taxes,   see  Municipal  Cor- 
porations, §  974, 
Condemnation    proceedings,    see    Eminent    Do- 
main, §  264, 
""riminal   prosecutions,   effect  of  loss  of  other 
•ledy,  see  Criminal  Law,  J  1018, 

'ings   before  justices   of   the   peace,   see 
Computai.of  the  Peace,  §  203, 


I.  NATiratE  Ain>  OBOtniDS. 

8  4,  Certiorari  will  not  be  granted  to  vacate 
an  order  which  might  be  corrected  by  amend- 
ment,—Board  of  Snp'rs  of  Gratiot  Connty  r. 
Munson  (Mich.)  117. 

8  27.  Ortiorari  lies  only  to  correct  juris- 
dictional errors.— State  v.  WiUcuts  (Wis.)  1048. 

XI.  PBOCEEDINOS  AlTD  DETEB- 
MUTATION. 

8  61.  On  certiorari  to  review  the  denial  of 
a  peremptory  mandamus,  the  evidence  taken 
held  not  sufficiently  authenticated  to  warrant 
consideration,— Ullman  v,  Sandell  (Mich.)  1076. 

8  60.  Though,  under  Supreme  Court  rate  5, 
appellee  is  entitled  to  notice  of  the  issuance, 
date,  and  return  day  of  a  writ  of  certiorari, 
failure  to  give  such  notice  is  not  ground  for  dis- 
missal of  the  writ  as  a  matter  of  law  nnder 
rule  9.— Ullman  v.  Sandell  (Mich.)  617, 

8  70,  On  writ  of  error  to  review  a  judgment 
of  the  circuit  court  in  certiorari  to  review  the 
action  of  the  highway  commissioner  in  laying 
out  a  highway,  the  Supreme  Court  will  disre- 
gard the  finding  of  fact  by  the  circuit  court 
and  dispose  of  the  case  on  the  return  to  the 
writ  which  must  tie  taken  as  true. — Grorham  ▼. 
Johnson  (Mich.)  U31. 

8  71.  On  certiorari  to  determine  whether  a 
statute  relative  to  the  construction,  etc.,  of 
bridges  and  highway  had  been  repealed  by  im- 
plication, the  question  being  one  of  public  in- 
terest, no  costs  would  be  allowed  either  party. 
— Reimink  v.  Strabbing  (Mich.)  183. 


CHALLENGE 

To  juror,  aee  Jury,  8  HO. 
To  jury  panel,  see  Jury,  8  70. 

CHANCERY. 

See  Equity. 

CHANGE. 

Of  judges,  see  Judges,  §  29. 

CHANGE  OF  POSSESSION. 

Necessity  as  against  creditors  of  grantor,  see 
Fraudulent  Conveyances,  8  147. 

CHANGE  OF  VENUE. 

Of  criminal  prosecutions,  see  Criminal  Law,  f 
121. 

CHARACTER. 

Elvidence  of  character  of  plaintiff  in  action  for 

libel,  see  Libel  and  Slander,  §  110. 
Of  witness,  see  Witnesses.  §§  344r-361. 
Opinion  evidence,  see  Criminal  Law,  8  4491 

CHARGE. 

By  carrier,  see  Carriers,  8  12. 

Of  legacies  on  property  by  will,  see  Wills,  t 
820. 

To  jury,  in  civil  actions,  see  Trial,  8{  186-296. 

To  jury,  in  criminal  prosecutions,  see  Crim- 
inal Law,  8i  784-S22. 

CHARITIES. 

H.  OOHSTHTTOTIOIT,  ADBCINISTRA. 
TION,  Ain>  EITFOBOEMENT. 

liability  for  false  imprisonment  see  False  Im- 
prisonment, 8  36. 


Topics,  divliloniv  *  section  (S)  NUMBERS  In  this  Index,  ft  Dec.  *  Amer,  Digs,  ft  Reporter  lodezas  acr** 


Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1165 


I  89.  An  institntiou  organized  ander  Pub. 
Acts  ISKS,  p.  28,  No.  20  (Comp.  Laws  1897, 
SS  8284-8270),  proTiding  that  three  or  more 
persons  who  may  desire  to  become  incorporat- 
ed for  any  charitable  purpose  may  do  so,  the 
purpose  of  which  is  charitable,  is  a  charitable 
society. — Gallon  v.  House  of  Good  Shepherd 
(Mich.)  631. 

8  89.  Fact  that  charitable  institution  is  by 
statute  given  the  right  to  detain  a  person  com- 
mitted to  it  by  a  magistrate  or  court  does  not 
render  the  institution  a  state  institution  or  a 
goTenimental  agency. — Gallon  v.  House  of 
Good  Shepherd  (Mich.)  631. 

S  45.  If  a  charitable  institution  is  a  gov- 
ernmental agency,  it  is  not  liable  for  the  torts 
of  its  ofBcers  or  agents. — Gallon  ▼.  House  of 
Good  Shepherd  (Mich.)  631. 

§  45.  The  duty  of  a  charitable  institution 
not  to  unlawfully  imprison  a  person  cannot 
be  delegated  to  servants  or  agents,  so  as  to 
relieve  the  principal  from  responsibility. — Gal- 
lon V.  House  of  Good  Shepherd  (Mich.)  631. 

i  45.  If  a  charitable  institution  is  a  public 
charitable  institution,  it  is  not  liable  for  the 
torts  of  its  officers  or  agents.— Gallon  v.  House 
of  Good  Shepherd  (Mich.)  631. 

t  48.  Trust  funds  of  a  charitable  institu- 
tion may  lie  used  to  indemnify  a  person  injured 
by  the  tort  of  servants  or  agents  of  the  insti- 
tution.—Gallon  y.  House  of '  Good  Shepherd 
(Mich.)  631. 

CHATTEL  MORTGAGES. 

m.   OONSTRUOTIOir  AND   OPEBA- 

Tioir. 

(A)  General  Rales  of  ComstmctloB. 

S  106.  A  mortgagor  in  a  chattel  mortgage 
purporting  to  be  for  a  specified  sum  who  as- 
serts that  the  indebtedness  was  a  less  sum  has 
the  burden  of  overcoming  the  presumption  aris- 
ing from  the  recitals  of  the  mortgage.— Price 
V.  Fertig  (Iowa)  814. 

rv.  RIGHTS  AND   I.IABII.ITIE8   OF 
PARTIES. 

i  169.  Chattel  mortgagee  held,  under  cer- 
tain circumstances,  liable  in  trover  to  mort- 
gagor.—Southwick  V.  Himmelman  (Minn.)  1016. 

8  169.  A  chattel  mortgagee  is  not  liable  in 
trover,  where  the  right  of  foreclosure  exists, 
but  the  proceedings  are  defective  in  form. — 
Southwick  V.  Himmelman  (Minn.)  1016. 

Vm.   PAYMENT   OB  PERFORMANCE 

OF  CONDITION,   RELEASE,  AND 

SATISFACTION. 

8  237.    Offer  of  payment  of  a  chattel  mort- 

fage  held  not  a  sufficient  tender  of  payment. — 
iottthwick  v.  Himmelman  (Minn.)  1010. 

CHEAT. 

See  False  Pretenses;   Fraud. 

CHECKS. 

See  Bills  and  Notes. 

CHILDREN. 

See  Guardian  and  Ward ;   Infantt,  - 

CHOSE  IN  ACTION. 

Assignment,  see  Assignments. 

CIRCUMSTANTIAL  EVIDENCE. 

See  Evidence,  8  587. 


CITATION. 


See  Process. 


CITIES. 

See  Municipal  Corporations. 

CITIZENS. 

Citizenship  ground  of  jurisdiction  of  United 
States  courts,  see  Removal  of  Causes,  8  43. 

Equal  protection  of  laws,  see  Constitutional 
Law,  8  230. 

Privileges  and  immunities,  see  (Constitutional 
Law,  88  206,  207. 

CIVIL  DAMAGE  LAWS. 

See  Intoxicating  Liquors,  88  310-316. 

CIVIL  RIGHTS. 

See  Constitutional  Law,  8$  90,  91,  206,  207, 
230. 

CLAIM  AND  DELIVERY. 

See  Replevin. 

CLAIMS. 

Against  estate  of  decedent,  see  Executors  and 

Administrators,  |8  221-254. 
Against  property  m  hands  of  receiver,  see  Re- 

ceiverSj  S  155. 
In  judicial  proceeding  as  creating  estoppel,  see 

Estoppel,  i  68. 
To  property  subjected  to  garnishment,  see  Gar 

nishment,  8$  ^>  218.- 

CLERKS  OF  COURTS. 

Necessity  of  service  of  notice  of  appeal  on  clerk 
of  court,  see  Appeal  and  Error,  |  413. 

CLOUD  ON  TITLE. 

See  Quieting  Title. 

COLLATERAL  AGREEMENT. 

Parol  evidence,  see  Evidence,  8  441. 

COLLATERAL  ATTACK. 

On  appointment  of  guardian  of  property  of  in- 
sane person,  see  Insane  Persons.  J  36. 

On  judgment,  see  Judgment,  §8  479-.506. 

On  record  of  proceedings  of  county  boaud,  see 
Ciounties,  8  57. 

COLLECTION. 

Of  estate  of  decedent,  see  Executors  and  Ad- 
ministrators, §§  104-167. 
Of  taxes,  see  Taxation,  88  549-60& 

COLOR  OF  TITLE. 

To  sustain  adverse  possession,  see  Adverse  Pos- 
session. 

combinations; 

See  Conspiracy;   Monopolies,  8  12. 

COMMERCE. 

Clerriage  of  goods  and  passengers,  see  Carriers. 

II.   StrBJEGTS   OF   REOVIJiTION. 

8  18.  Under  the  commerce  clause  of  the  fed- 
eral Constitution,  Congress  has  charge  of  aK 
navigable  waters  in  the  United  States. — In  re 
Southern  Wisconsin  Power  Co.  (Wis.)  801,  809 ; 


For  cases  In  Dec.  Dig.  *  Amsr.  Digs.  1907  to  date  *  Indexes  ie«  same  topic  *  section  ({)  NUMBBR 

Digitized  by  LjOOQ  l€ 


1166 


122  NORTHWESTERN  REPORTER. 


Appeal  o<  Black  Hawk  Lend  Co.  (Wis.)  801; 
Appeal  of  Whitnall  (Wis.)  809. 

i  18.  Bach  state  has  plenary  power,  in  the 
alMence  of  congressional  action,  to  regulate 
navigable  streams  wholly  within  its  borders, 
subject  to  the  subsequent  exercise  of  congres- 
sional jurisdiction. — In  re  Southern  Wisconsin 
Power  Co.  (Wis.)  801,  809;  Appeal  of  Black 
Hawk  Land  Co.  (Wis.)  801;  Appeal  of  Whit- 
nall (Wis.)  809. 

§  18.  In  the  absence  of  congressional  legisla- 
tion, a  s^ate  statute,  authorizing  a  dam  across 
a  navigable  river,  is  constitutional. — In  re 
Southern  Wisconsin  Power  Co.  OVis.)  801,  809 ; 
Appeal  of  Black  Hawk  Land  Co.  (Wis.)  801; 
Appeal  of  Whitnall  (Wis.)  809. 

i  20.  The  constitutional  provision  that  navi- 
gable waters  shall  become  common  highways 
forever  free  does  not  refer  to  physical  obstruc- 
tions of  the  water. — In  re  Southern  Wisconsin 
Power  Co.  (Wis.)  801.  809;  Appeal  of  Black 
Hawk  Land  Co.  (Wis.)  801;  Appeal  of  Whit- 
nall (Wis.)  809. 

§  46.  A  foreign  corporation  held  to  be  doing 
an  interstate  business  as  to  certain  property 
sought  to  be  recovered  by  replevin,  so  that  it 
could  sue  without  complying  with  Rev.  dv. 
Code,  §!  883,  885.— Rex  Buggy  Co.  v.  Dinneen 
(S.  D.)  433. 

m.  MEAKS  AND  METHODS  OF  BEO- 
1TI.ATIOir. 

f  SO.    Laws  1907,  p.  491,  c.  355,  ptoviding 

for  inspection  of  animals  imported  into  the  state, 
held  not  a  violation  of  Const.  U.  S.  art.  1,  (  8. — 
Evans  v.  Chicago  &  N.  W.  By.  Co.  (Minn.)  876. 

i  61.  Cobbey's  Ann.  St  1907,  {{  10,606  and 
10,607,  regulating  shipment  of  live  stock,  does 
not  interfere  with  interstate  commerce.— -Oram 
V.  Chicago,  B.  &  Q.  R.  Co.  G^eb.)  31. 

COMMERCIAL  PAPER. 

See  Bills  and  Notes. 

COMMISSION. 

Inquisition  of  lunacy,  see  Insane  Persona,  {| 
7-26. 

Joinder  of  cause  of  action  against  railroad  com- 
mission with  cause  against  third  person  to 
prevent  compliance  with  order  of  commission, 
see  Action,  {  SO. 

Railroad  commission,  demurrer  to  pleading 
based  on  order  of,  see  Pleading,  {  198. 

COMMISSIONERS. 

Joinder  of  canse  of  action  against  railroad  com- 
mission with  cause  against  third  person  to 
prevent  compliance  with  order  of  commission, 
see  Action,  |  50. 

Railroad  commissioners,  demurrer  to  pleading 
based  on  order  of,  see  Pleading,  S  193. 

COMMISSIONS. 

Of  agent,  see  Principal  and  Agent,  {  81. 
Of  broker,  see  Brokers,  g§  46-65. 
Of  executor  or  administrator,  see  Executors  and 
.Administrators,  §{  501,  609. 

COMMON  CARRIERS. 

See  Carriers. 

COMMON  SCHOOLS. 

See  Schools  and  School  Districts,  U  62-159. 

COMMUTATION. 

Of  tax,  see  Taxation,  §  200. 


COMPENSATION. 

For  propert.v  taken  for  public  use,  see  Eminent 
Domau,  8*  69-141. 

Of  particular  clattet  of  ogicert  or  other  person*. 

See  Brokers,  §{  46-65;  Executors  and  Admin- 
istrators, If  501,  509. 

Agent,  see  Principal  and  A^nt,  g  81. 

Contractors  for  construction  of  drains,  see 
Drains,  {  49. 

Guardian  of  lunatic,  see  Insane  Persons,  {  41, 

Juror,  see  Jury,  §  77. 

Servant,  see  Master  and  Servant,  {  80. 

Tax  collector,  see  Taxation,  {  549. 

COMPETENCY. 

Of  evidence  in  criminal  prosecutions,  see  Crimi- 
nal Law,  §  395. 

Of  experts  as  witnesses,  see  Evidence,  g§  536- 
543^4. 

Of  juror,  see  Jury,  §  110. 

Of  witnesses  In  general,  see  Witnesses,  {g  3S* 

COMPLAINT. 

In  criminal  prosecution,  see  Indictment  and  In- 
formation. 

COMPROMISE  AND  SETTLEMENT. 

See  Release. 

Offer  of  as  evidence,  see  Evidence,  %  213. 

jl  2.  Notes  given  .for  specific  items  of  in- 
debtedness hela  not  a  settlement  of  all  exist- 
ing matters  between  the  parties.— J.  I.  Case 
Threshing  Mach.  0>.  ▼.  Fisher  &  Aney  (Iowa) 
575. 

COMPUTATION. 

Of  interest,  see  Interest,  {  50. 
Of  period  of  limitation,  see  Limitation  ot  Ac- 
tions, ig  66-72. 
Of  time,  see  Time. 

CONCLUSION. 

Of  witness,  see  Evidence,  g  471. 

CONCURRENT  REMEDIES. 

Quo  warranto  and  other  remedy,  see  Qno  War- 
ranto, I  3. 

To  contest  election  of  city  officers,  see  Mnnlcipai 
Corporations,  g  136. 

CONDEMNATION. 

Taking  property  for  public  use,  see  Eminent 
Domain. 

CONDITIONS. 

Conditional  tender  of  payment  of  indebtedness 
secured  by  chattel  mortgage,  see  Chattel 
Mortgages,  {  237. 

In  eontracti  and  conveyaneet. 
Insurance  policies,  see  Insurance,  §§  336-365. 
Sale  at  auction,  see  Auctions  and  Auctioneers, 

Precedent  to  aotiont  or  other  proceeding*. 

Dismissal  of  appeal,  see  Appeal  and  Error,  | 
776. 

For  breach  of  contract,  see  Sales,  |  371 ;  Ven- 
dor and  Purchaser,  g  323. 

Rescission  of  sale,  see  Sales,  i  '  24. 

Setting  aside  sale  of  land  for  nonpayment  of 
assessments  for  public  impro'  :meots,  see  Mu- 
nicipal Corporations,  |  578. 

To  set  aside  sale  of  merchanO,  e  as  fraudulent, 
see  Fraudulent  Conveyances,  g  241. 


Toiiics,  dlvlsloua,  i.  section  (t)  NUMBERS  In  tbu  Index,  &  Dec.  *  Am«r.  Digs.  *  Reporter  Indues  agree 

Digitized  by  LjOOQ  l€ 


INDBX-DIGEST. 


1157 


CONDUCTORS. 

Keporta  ol  as  best  or  secondary  .  ridence,  see 
ETidence,  i  174. 

Separation  of  conductor's  report  from  stub  as 
affecting  admissibility  in  evidence,  see  Altera- 
tion of  Instruments,  {  2. 

CONFIDENTIAL  RELATIONS. 

Affecting  validity  of  contract,  see  Contracts,  | 

113. 
Disclosure   of   communications,   see   Witnesses, 

K  196-202. 

CONFIRMATION. 

Of  assessment  of  benefits,  see  Municipal  Cor- 
porations, S  607. 
Of  tax  title,  see  Taxation,  ff  799-809. 

CONFLICT  OF  LAWS. 

Ab  to  insurance  policy,  see  Insurance,  {  147. 

CONNECTING  CARRIERS. 

See  Carriers,  {  172. 

CONSENT. 

To  granting  liquor  license,  see  Intoxicating  Liq- 
uors,  $  60. 

CONSIDERATION. 

Of  contract  in  general,  see  Contracts,  {{  90, 
10&-138. 

Of  particular  clatte*  of  contractt. 
See  Release,  {  12 ;   Sales,  f  21. 
Modification  of  contract,  see  Contracts,  {  237. 

CONSOLIDATION. 

Of  causes  on  appeal,  see  Appeal  and  Error,  t 
816. 

CONSPIRACY. 

Combinations  to  monopolize  trade,  see  Monop- 
olies, 8  12. 

I.  CrVlIi  I.IABIUTT. 

(B)  Actions. 

{  21.  In  an  action  to  recover  monejr  which 
it  was  claimed  defendants  procured  plaintiff  to 
invest  in  a  business,  evidence  held  to  make  it 
a  jury  question  whether  defendants  fraudu- 
lently conspired  to  procure  the  money. — ^Mas- 
sey  T.  Luce  (Mich.)  514. 

CONSTABLES. 

See  Sheriffs  and  Constables. 

CONSTITUTIONAL  LAW. 

Provitiont  relating  to  particular  subjectl. 

See  Elections.  {  120;  Eminent  Domain,  |§  2- 
68 ;  Jury,  §S  17-34 ;  Schools  and  School  Dis- 
tricts, i  91 ;   Taxation,  i§  38,  200. 

Assessments  for  public  improvements,  see  Mu- 
nicipal Corporations,   §§  407,  434. 

Enactment  and  validity  of  statutes,  see  Stat- 
utes, §§  83,  64. 

Special  or  local  laws,  see  Statutes,  Sf  79,  80. 

Subjects  and  titles  of  statutes,  see  Statutes,  §8 
109-121.  r 

n.  coiteTjJLtTCTioir,  operation, 

AND  ENi'ORCEMENT   OF   CON- 
STITUTAONAX.  PROVISIONS. 

{  42.  In  mandamus  by  private  person  to 
comppi  county  officprs   to  change   the  location 


of  their  offices,  the  court  will  not  determine 
constitutionality  of  act  providing  for  a  vote  on 
rplocation  of  the  county  seat.— Dean  v.  Dim- 
mick  (N.  DJ  245. 

8  48.  Statutes  fixing  maximum  rates  which 
public  service  corporations,  joint-stock  com- 
panies, or  others  may  charge  as  compensation 
for  their  services  held,  presumably  constitu- 
tional.—State  T.  Adams  Express  Co.  (Xob.) 
691 ;   Same  v.  Wells,  Faigo  ft  Co.  (Neb.)  697. 

8  4S.  In  passing  on  the  validity  of  Comp. 
St.    1007,    88    5494-5497b,    Sess.    Lews    1907, 

S.  402,  c.  121,  i>ermitting  pupils  residing  In 
Istricte  where  high  school  instruction  is  not 
given  to  attend  schools  in  other  distripts  on 
payment  by  the  home  district  of  75  cents  a 
week  for  each  pupil,  it  will  not  be  assumed 
witliout  pleading  or  proof  that  the  tuition  fix- 
ed by  the  Legislature  will  fall  below  or  exceed 
the  cost  of  educating  a  nonresident  pupil. — 
Wilkinsoa  v.  Lord  (Neb.)  609. 

8  48.  It  is  only  where  a  statute  clearly  con- 
flicts with  the  Constitution  that  the  courts 
will  declare  it  void. — Wickhem  v.  City  of  Al- 
exandria (S.  D.)  597. 

8  48.  A  statute  should  not  be  adjudged  in- 
Talid  except  on  clear  and  sufficient  grounds. — In 
re  Southern  Wisconsin  Power  Co.  (Wis.)  801, 
809;  Appeal  of  Black  Hawk  Land  (3o.  (Wis.) 
801;   Appeal  of  Whitnall  (Wis.)  809. 

ZH.  DISTRIBUTION  OF  GOVERN.    . 
MENTAI.  POWERS  AND 
FUNCTIONS. 

(A)  LevlstetlTe  Powers  and  Delevatton 
Tbereof. 

8  50.  Power  to  prescribe  conditions  on  which 
city  territory  may  be  detached  held  legislative. 
—Winkler  v.  City  of  Hastings  (Neb.)  858. 

8  61.  Where  legislative  power  to  detach  city 
territory  nas  been  delegated  to  the  mayor  and 
council,  an  appeal  from  a  refusal  to  disconnect 
tracts  cannot  be  made  the  means  of  transfer- 
ring such  power  to  the  district  court. — Winkler 
T.  City  of  Hastings  (Neb.)  858. 

8  61.  Pol.  Code,  88  1511,  1512,  held  not  on- 
constitutional,  as  investing  the  circuit  court 
with  legislative  powers. — Wickhem  v.  City  of 
Alexandria  (S.  D.)  597. 

(B)  Judicial  Poirers  and  Fnnotlona. 

8  68.  The  Legislature  having  made  no  other 
declaration  than  that  by  St.  1898,  8  854,  the 
area  of  a  village  proposed  to  be  incorporated 
shall  not  be  less  than  one-half  square  mile,  it 
would  seem  to  be  a  question  of  fact  for  the 
court  whether  territory  in  excess  thereof  was 
proper  to  he  included,  since  to  improperly  in- 
clude lands  would  violate  the  nniformily  of 
town  and  county  government  guaranteed  hj 
Const  art.  4,  8  23,  and  such  a  question  is  judi- 
cial in  its  character.— Fenton  v.  Ryan  (Wis.) 
756. 

8  68.  It  is  only  where  the  legislative  discre- 
tion bas  been  abused  in  determining  the  bound- 
aries of  villages,  and  Const,  art.  11,  8  3,  and 
article  4,  8  !^>  violated,  that  the  courts  may 
Interfere.— Fenton  v.  Ryan  (Wis.)  756. 

'  8  70.  The  inclusion  of  property  within  the 
boundaries  of  a  drainage  district  is  an  exercise 
of  legislative  power  which  the  courts  cannot  re- 
view.—Chicago,  M.  &  St.  P.  By.  Co.  V.  Monona 
County  (Iowa)  820. 

8  73.  Courts  cannot  control  the  head  of  an 
executive  department  of  the  state  in  the  dis- 
charge of  any  duty  Involving  the  exercise  of 
discretion ;  but  where  duties  are  purely  minis- 
terial he  may  be  compelled  to  act,  or  restrain- 
ed from  acting,  as  the  case  may  be.— Cooke  v. 
Iverson  (Minn.)  251. 


For  cases  in  Dec.  Dig.  *  Amer.  Digs.  1S07  to  date  &  Indezai  le*  same  topic  *  lectloif  (J) 

Digitized  by 


1158 


122  NORTHWESTERN  REPORTER. 


(  73.  OoortB  cannot  Interfere  with  the  ez- 
erciee  of  discretion  committed  to  state  and 
municipal  administrative  officers.— State  v. 
Rose  (Wis.)  751. 

(  74.  Where  the  Le^slature  has  imposed  up- 
on executive  and  administrative  officers  abso- 
lute duty,  involving  nothing  of  judgment  or 
discretion,  the  ministerial  duty  may  be  en- 
forced by  the  courts,  if  there  is  no  other  ade- 
quate method  provided.— State  v.  Rose  (Wis.) 

V.  PEBSOITAIi  OXVU.  AND  POI.XTI- 
OAI.  SIGHTS. 

i  90.    Sess.  Laws  1909,  p.  256,  c.  53,  i  1, 

declaring  that  candidates  for  judicial  or  ed- 
ucational offices  shall  not  be  nominated,  indors- 
ed, or  censured  by  any  political  party,  conven- 
tion, or  primary,  held  in  violation  of  Const.,  Bill 
of  Rights,  art.  1,  g  6,  protecting  the  right  to 
freely  speak  and  write  on  all  subjects. — State 
v.  Junkm  (Neb.)  473. 

I  91.  Sess.  Laws  1909,  p.  256,  c.  63,  {  1, 
declaring  that  candidates  for  judicial  or  ed- 
ucational offices  shall  not  be  nominated,  rec- 
ommended, or  censured  by  any  political  j>arty, 
convention,  or  primary,  held  to  violate  Const.. 
Bill  of  Rights,  art  1,  (  19.  protecting  the  right 
of  assembly  and  petition. — State  t.  Junkin 
(Neb.)  473. 

{  91.  A  political  convention  is  an  assem- 
blage within  Const.,  Bill  of  Rights,  art.  1,  g  19, 
declaring  that  the  right  to  assemble  to  consult 
for  the  common  good  shall  never  be  abridged. — 
State  T.  Junkin  (Neb.)  473. 

VI.  VESTED  BIGHTS. 

8  102.  Vested  rights  of  a  county  treasurer 
kekf  not  impaired  by  Loc.  Acts  1907,  p.  362, 
No.  461.  in  force  before  the  treasurer  took 
office. — Board  of  Sup'ra  of  Oratiot  County  v. 
Mnnson  (Mich.)  117.  • 

t  102.  An  office  is  not  a  property  right  to 
bold  it  a  vested  one.— State  v.  Dahl  (Wis!)  748. 

Vn.  OBLIGATION  OF  CONTBAOTS. 

(B)  Contrseta  o(  States  and  Munhslpal- 
Itlea. 

S  121.  A  contract  binding  a  poblic  service 
corporation  to  render  certain  aerricea,  valid 
when  made,  held  within  the  constitutional  pro- 
tection prohibiting  the  impairment  of  obliga- 
tions of  contracts,  and  public  utility  law  (Laws 
1907,  p.  477,  c.  409  [St.  ISOig,  I  1797m-91]) 
recognizeB  the  existence  of  valid  contracts. — 
City  of  Superior  t.  Douglas  0>unty  Telephone 
Co.  (Wis.)  1023. 

i  126.  Under  Const,  art  15,  |  1,  the  Legisla- 
ture can  impose  upon  corporations  different  obli- 
gations than  those  imposed  by  the  statute  under 
which  they  were  organised. — Deloria  v.  Atkins 
(Mich.)  559. 

Vm.  BETBOSPECTTVE  AND  EX  POST 
FAOTO  UkWS. 

f  190.  The  Legislature  cannot  by  retroac- 
tive enactment  create  a  personal  liability  for 
payment  of  a  special  assessment  levied  for  the 
expenses  of  opening  a  street — Weber  ▼.  City 
of  Detroit  (Mich.)  570. 

I  190.  A  statute  cannot  be  construed  re- 
troactively so  as  to  interfere  with  vested  rights. 
— Board  of  Sup'rs  of  Arenac  County  v.  Board 
of  Sup'rs  of  Iosco  County  (Mich.)  ^9. 

nC  PRIVTLEOES  OB  IMMUHIITIKS, 
AND   CLASS  LEGISLATION. 

{I  206,  207.  Ordinance  relating  hawkers 
and  peddlers  within  a  city  held  unconstitution- 
al, as  denying  to  nonresidents  the  equal  protec- 
tion of  the  laws. — State  v.  Nolan  (Minn.)  255. 


Z.  EQUAL  PBOTEOTXON  OF  LAWS. 

§  230.  Ordinance  regulating  hawkers  and 
peddlers  within  a  city  held  unconstitutional,  as 
denying  to  nonresidents  the  equal  protection  of 
the  laws.— State  v.  Nolan  (Minn.)  255. 

XL  DUE  PBOOESS   OF  LAW. 

S  251.  "Due  process  of  law"  defined.— Wil- 
ber  V.  Reed  (Neb.)  63. 

I  281.  Cobbey's  Ann.  St  1907,  |  8606,  c. 
37,  relating  to  the  appointment  of  second  set 
of  assessors  in  condemnation  proceedings,  held 
unconstitntional  as  a  takin|;  of  properdr  with- 
out due  process  of  law. — Wilber  v.  Reed  (Neb.) 
53. 

I  290.  Deepening  a  drainage  ditch  held  not 
an  ordinary  repair,  but  to  result  in  part,  at 
least  in  a  new  ditch,  requiring  notice  to  in- 
terested landowners  and  an  opportunity  to  be 
heard.— In  re  Renville  Co.  (Minn.)  1120;  State 
T.  McQuire,  Id. 

{  290.  Ordinary  repairs  of  a  drainage  ditdi 
may  be  made  without  notice  to  interested  prop- 
erty owners.- In  re  Renville  Co.  (Minn.)  1120; 
State  V.  McOuire,  Id. 

{  29a  Gen.  Laws  1005,  p.  327,  c.  230,  |  26, 
in  so  far  as  it  attempts  to  confer  upon  county 
commissioners,  without  notice  to  interested 
property  owners,  authority  to  enlarge  a  drain- 
age ditch,  held  not  due  process  of  law. — In  re 
Renville  Co.  (Minn.)  1120;  State  v.  McGuire, 
Id. 

§  303.  Cobbey's  Ann.  St  1907.  8S  10,606  and 
10,607,  relating  to  the  shipment  of  live  stock 
and  authorizing  a  penalty  in  a  fixed  amount 
for  delay,  held  not  unconstitutional  as  depriving 
the  railroad  company  of  property  without  due 
process  of  law.— Gram  v.  Chicago.  B.  A  Q.  R. 
Co.  (Neb.)  81. 

CONSTRUCTION. 

Parol  evidence  to  construe  writing,  see  Evi- 
dence, H  448-462. 

Of  contract*,  itutmmenU  or  fudiciat  act*  or 
proeeedingi. 

See  Bills  and  Notes,  (  120;  Bonds.  |  82;  Oon- 
tracts,  {|  147-202;  Release,  ft  28.  37:  Sales, 
li  71-82;  Statutes,  U  181-268:  Wills,  {{ 
470-494. 

Instructions,  see  Trial,  S  295. 

Lease,  see  landlord  and  Tenant  I  87. 

CONSTRUCTIVE  TRUSTS. 


See  Trusts,  |  95. 

CONTEMPT. 

Disobedience  to  injunction  against  sale  at  liq- 
uors as  contempt  see  Intoxicating  Liquors, 
I  279. 

Disobedience  to  injunction  incidental  to  credit- 
ors' suit  as  contempt  see  Creditors'  Suit  I 
82. 

IL  POWEB  TO  PUNISH.  AND  PBO- 
CEEDINOS  THEBEFOB. 

Judicial  notice  of  decree  violated,  see  Evidence, 
143. 

CONTINUANCE 

i  7.  Granting  of  continuance  is  largely  in  the 
discretion  of  the  trial  court — Tisdale  v.  Einnia 
(Iowa)  959. 

I  9.  Stipulation  to  continue  a  cause,  signed 
by  attorne:r8  of  one  of  the  parties,  and  not  by 
the  other,  is  void. — Meadows  v.  Osterkamp  (8. 
D.)  419. 


Topiui.  divisions,  *  secUon  (|)  NUMBERS  in  this  Index.  *  Dm.  *  Amer.  Digs.  *  Reportar  Index* 

Digitized  by ' 


fortar  IndexM 


IMDEX-DIGBST. 


U59 


I  28.  Granting  of  continuance  to  a  day  later 
in  the  term  to-  obtain  rebutting  evidence  held 
not  an  abase  of  discretion.— Tisdale  t.  Ennis 
(Iowa)  958. 

CONTRACTS. 

AKreementa     within     statnte     of    frauds,    see 

Frauds,   Statnte  of. 
Alteration,  see  Alteration  of  Instruments. 
Assignment,  see  Assignments. 
Cancelation,  see  Cancellation  of  Instruments. 
Impairing  obligation,   see   Constitutional   Law, 

HiZl,  126. 
Parol   or   extrinsic  eyidenoe,   see   Elridence,    (S 

897-*e6. 
Specific  performance,  see  Specific  Performance. 
Sabrogation  to  rights  or  remedies  of  creditors, 

see  Subrogation. 

Contract*  of  particular  da$$e$  of  pertont. 
See  Corporations,  J  449;    Husband  and  Wife, 
i  49^  ;   Master  and  Servant  ■  Municipal  Cor- 

§  orations,  M  241,  244,  347,  374 ;    Schools  and 
chool  Districts,  §  80 ;  Towns,  §  37. 
Boards  of  health,  see  Health,  }  16. 
School    district,   see   Schools   and    School   Dis- 
tricts, I  80. 
Town  board,  see  Towns,  §  ST. 

Contractt  relaUng  to  particular  »uhieot$. 

See  Interest;  Intoxicating  Liquon,  U  827, 
329. 

Construction  of  drain,  see  Drains,  {  49. 

Ground  for  mechanics'  liens,  see  Mechanics' 
Liens,  Si  61,  95,  115. 

Telephone  service,  see  Telegraphs  and  Tele- 
phones, S  32. 

Traffic  contracts  between  railroads,  see  Rail- 
roads, {  134. 

Particular  cla»*e»  of  emprett  contractt. 

See  Bills  and  Notes;  Bonds;  Depositaries; 
Exchange  of  Property;  Insurance;  Joint  Ad- 
ventures; Partnerabip;  Sales;  Subscrip- 
tions. 

Agency,  see  Principal  and  Agent. 

Employment,  see  Master  and  Servant. 

Lease,  see  Landlord  and  Tenant. 

Sales  of  realty,  see  Vendor  and  Purchaser. 

Suretyship,  see  Principal  and  Surety. 

Particular  claiies  of  implied  contracts. 
See  Use  and  Occupation;    Work  and  Labor. 

Particular  modet  ■  of  discharging  contracts. 
See   Compromise    and    Settiement;     Pasrment; 
Release. 

I.  BEQXnSITEB  AND   VAUSITT. 

<A)  Katnre  aad  Kasentlala  In  General. 

i  9.  A  contract  binding  a  telephone  company 
operating  in  a  city  to  maintain  without  charge 
telephones  in  the  public  offices  of  the  city  held 
to  sufficiently  fix  a  time  for  its  termination. — 
City  of  Superior  t.  Douglas  County  Telephone 
Co.  (Wis.)  1023. 

S  9.  A  contract  held  not  terminable  at  will 
merely  because  the  duration  thereof  is  nncer- 
•tain.— City  of  Superior  v.  Douglas  County  Tel- 
«phone  Co.  (Wis.)  1023. 

(B)  Parties,  Proposals,  and  Aceeptanee, 

{  22.  An  ofFer  on  one  side  may  be  accepted  by 
unqualified  performance  on  tiie  other,  in  case  the 
offer  does  not  otherwise  require. — City  of  Su- 

?erior  t.  Douglas  County  Telephone  Co.  (Wis.) 
023. 

§  26.  A  contract  may  be  made  by  letter, 
-without  inserting  all  its  terms  in  a  single  in- 
strument.— Fruit  Dispatch  Co.  v.  Giliuslcy 
<Neb.)  45. 


(D)  OoBslderatloa. 

f  90.  A  written  ai^reement  is  prima  facie 
proof  of  a  valid  consideration. — ^Brown  v.  Ed- 
saU  (S.  D.)  65& 

<B)  VallditT  of  Asaent. 

I  94.  Misrepresentation  of  a  material  fact 
causing  another  to  enter  into  a  contract  to  his 
prejudice  held  to  avoid  the  contract,  although 
the  misrepresentation  was  made  in  good  faith. — 
Kathan  t.  Comstock  (Wis.)  1044. 

(F)  l«araUtr  of  object  and  of  Conald- 
eratioB. 

Contract  for  maintenance  of  telephones  in  pub- 
lic offices  without  charge,  see  Telegraphs  and 
Telephones,   g  32. 

Instructions  in  actions  for  breach,  see  Con- 
tracts, I  353. 

f  108.  Public  policy,  as  applied  to  contracts, 
defined.— Hollauo  v.  Sheehan  (Minn.)  1. 

§  108.  Contracts  mala  in  se  include  those  of 
an  Immoral  nature,  iniquitous  in  themselves, 
and  those  opposed  to  sound  public  policy. — 
Holland  v.  Sheehan  (Minn.)  1. 

}  108.  The  validity  of  a  contract  sanctioned 
by  the  public  policy  when  made  is  not  affected 
by  a  change  in  public  policy  b^  legislative  act 
or  otherwise. — City  of  Superior  v.  Douglas 
County  Telephone  Co.  (Wis.)  1028. 

I  108.  Public  policy  as  bearing  on  the  judi- 
cial enforceability  of  contracts  defined.— City  of 
Superior  v.  Douglas  County  Telephone  Co. 
(Wis.)  1023. 

i  108.  Discriminatory  contracts  between 
public  utility  corporations  and  their  patrons 
which  are  void  as  inimical  to  the  public  good 
are  void  because  unreasonable  advantage  is 
thereby  given  to  one  customer  or  a  class  over 
others.— City  of  Superior  v.  Douglas  County 
Telephone  Co.  (Wis.)  1023. 

f  108.  A  contract  between  a  public  utility 
corporation  and  the  state  or  a  public  corpora- 
tion, which  gives  the  state  or  public  corpora- 
tion advantage  over  general  customera,  inures 
to  the  benefit  of  the  state  or  public  corporation 
in  tbe  aggregate,  and  is  not  discriminatoi^  nor 
violative  of  public  policy. — City  of  Superior  v. 
Douglas  County  Telephone  Co.  (Wis.)  1023. 

g  113.  Agent  selling  farm  machinery  on 
commission  AcId  not  to  nave  committed  a  breach 
of  confidential  relations  by  procuring  evidence 
that  one  of  his  principals  was  selline  machin- 
ery manufactured  under  a  patent  license  on 
more  favorable  terms  than  were  offered  by 
plaintiffs.— J.  I.  Case  Threshing  Mach.  C!o.  v. 
Fisher  &  Aney  (Iowa)  675. 

I  113.    A   contract   to   induce   an   agent  to 

ahnndon  further  relations  with  his  principal 
held  not  illegal,— J.  I.  Case  Threshing  Mach. 
Co.  V.  Fisher  &  Aney  (Iowa)  575. 

S  113.  Where  a  contract  is  by  its  terms  or 
nature  terminable,  there  is  no  wrong  in  offer- 
ing inducements  to  a  party  to  terminate  it  in 
the  interest  of  the  person  offering  such  induce- 
ments.—J.  I.  Case  Threshing  Mach.  Co.  t. 
Fisher  &  Aney  (Iowa)  575. 

$  117.  A  contract  for  the  sale  of  a  business 
including  its  good  will,  with  an  agreement  not 
to  re-engage  m  that  business  in  the  same  city 
for  five  yeara  held  valid  at  common  law. — Buck- 
hout  V.  Witwer  (Mich.)  184. 

I  117.  A  contract  by  the  seller  of  business 
stock  and  good  will  of  a  lumber  yard  not  to 
engage  in  the  lumber  and  coal  business  in  the 
lopnhty  where  the  lumber  yard  was  located 
while  the  purchaser  was  there  in  business  held 
not  void  on  its  face  as  against  public  policy 
or  in  violation  of  Gomp.  St.  1901,  c.  91a,  {  1 
(section  5330).— Engles  v.  Morgeusteru  (Neb.) 
688. 


For  eases  In  Dec.  Dig.  *  Amer.  Digs.  1907  to  data  4e  Indexes  saa  sam*  topio  t  secUon  (i)  NUMBBB 

Digitized  by  VjOOQ  l€ 


1160 


122  NORTHWESTEEN  REPOBTER. 


8  129.  A  contract  to  pay  defendants  for  evi- 
dence of  another's  breach  of  contract  without 
reference  to  the  result  of  an  action  in  which 
it  was  to  be  used  held  not  illegal.— J.  I.  Case 
Threshing  Mach.  Co.  v.  Fisher  &  Aney  (Iowa) 
575. 

§  129.  Contract  between  layman  and  lawyer 
for  division  of  fees  received  by  the  latter  from 
persons  brought  to  him  by  the  former  having 
causes  of  action  against  railroad  companies 
held  contrary  to  public  policy.— Holland  v. 
Sheehan  (Minn.)  1. 

§  138.  lu  contract  void  as  against  public 
policy,  both  parties  held  equally  guilty. — Hol- 
land V.  Sheehan  (Minn.)  1. 

n.  0OMSTB1TCTIOM  AXD  OPEBA- 
TION. 

(A)   General  Roles   of   Conatrnotlon. 

Contract  with  corporation,  see  Corporations,  f 
3o8. 

S  147.  A  contract  held  to  be  interpreted  to 
give  effect  to  the  mutual  intent  of  the  parties 
as  it  existed  at  the  time  of  contract. — Young 
V.  MetcaU  Land  Co.  (N.  D.)  1101. 

i  153.  A  contract  held  to  be  interpreted  to 
give  eCFect  to  the  mutual  intent  of  the  parties 
as  it  existed  at  the  time  of  contract. — Young  v. 
Metcalf  Land  Co.  (N.  D.)  1101. 

{  153.  A  contract  must  receive  such  an  in- 
terpretation as  will  give  it  validity  and  effect 
—Young  v.  Metcalf  Land  Co.  (N.  D.)  IIOL 

{  173.  Whether  covenants  in  a  contract  are 
dependent  or  independent  must  depend  on  the 
intention  of  the  parties,  to  be  gathered  from 
the  terms  of  the  instrument. — Ink  v.  Rohrig 
(S.  D.)  504. 

(C)  Snbjeet-Matter. 

Construction  of  contract  for  conveyance  of  real- 
ty in  consideration  of  support  for  life,  see 
Vendor  and  Purchaser,  {  70. 

5  202.  Where,  by  a  contract  by  which  plain- 
tiff was  engaged  to  act  as  general  sales  agent 
for  defeudanrs  goods,  defendant  agreed  to  in- 
struct plaintiff  in  the  details  of  the  business 
until,  in  defendant's  estimation,  he  was  sufS- 
clentiy  instructed,  he  was  bound  to  reasonably 
instruct  nlaintiS  in  good  faith.— Ward  v.  Cook 
(Mich.)  m. 

m.  MODIFIOATION  Ain>  BCEBGER. 

{  237.  Where  defendant  contracted  to  de- 
liver a  certain  amount  of  wood  to  plaintiff 
within  a  reasonable  time,  but  failed  to  do  so, 
a  subsequent  contract,  made  before  defendant 
had  fully  performed  the  original  contract, 
which  modified  that  contract  by  increasing  the 
price  per  cord,  extending  the  time  of  delivery, 
etc.,  was  based  on  a  sufficient  consideration. — 
Pulpwood  Co.  V.  Perry  (Mich.)  552. 

i  246.  Modification  of  a  contract  to  furnish 
wood,  which  provided  for  an  increased  price, 
held,  as  to  the  latter  provision,  to  be  condi- 
tional upon  defendant's  substantially  perform- 
ing the  modified  contract. — Pulpwood  Co.  v. 
Perry  (Mich.)  552. 

IV.   BESCISSIOir   AND   ABANDON- 
MENT. 

i  250.  A  provision  in  a  building  contract 
held  to  authorize  the  contractor,  earning  an  in- 
stallment of  the  price,  which  is  not  paid,  to 
abandon  the  contract. — Schillinger  Bros.  &  Co. 
V.  Bosch-Ryan  Grain  Co.  (Iowa)  961. 

{  252.  The  termination  of  a  contract  is  not 
justified  by  a  provision  authorizing  its  termina- 
tion by  defendant  if  plaintiff  failed  to  comply 
with  any  of  Its  conditions,  or  to  conduct  the 
business  in  a  satisfactory  manner,  where  plain- 


tiff did  not  violate  that  provision. — ^Ricbey  t. 
Union  Cent  Life  Ins,  Co.  (Wis.)  1030. 

(  201.  The  failure  of  a  building  contractor 
to  furnish  a  bond,  as  required  by  the  contract, 
held  not  the  fault  of  the  contractor.— Schil- 
linger  Bros.  &  Co.  t.  Bosch-Ryan  Grain  Co. 
(Iowa)  961. 

§  270.  The  right  to  rescind  a  contract  for 
fraud  must  be  promptly  exercised  upon  dis- 
covery of  the  ground  thereof.— Arnold  v.  Dowd 
(Xeb.)  680. 

S  274.  Where  plaintiff  rescinded  his  contract 
with  defendant  to  establish  a  branch  aeencv  tor 
the  sale  of  defendant's  perfumery  before  bring- 
ing an  action  for  damages  caused  by  defend- 
ant's breach  thereof,  and  by  his  fraudulent  rep- 
resentations as  to  the  quality  of  the  goods,  etc., 
he  could  not  recover  for  salary  and  expenses 
as  provided  by  the  contract— Ward  t.  Cook 
(Mich.)  785. 

V.  PEBFOBUANCE  OB  BBBACH. 

I  278.  One  suing  on  a  contract  must,  to  re- 
cover, show  a  substantial  compliance  with  its 
terms,  or  a  waiver  of  such  compliance  on  the 
part  of  the  adverse  party.— Schillinger  Bros. 
&  Co.  T.  Bosch-Ryan  Grain  Co.  (Iowa)  961. 

8  280.  A  contract  for  the  constmctioo  of  a 
concrete  building  heU  Bubstantially  complied 
with  by  using  concrete  of  the  quality  agreed 
on.— Schillinger  Bros.  &  (3o.  v.  Bosch-Ryan 
Grain  Co.  (Iowa)  961. 

§  280.  A  contractor  held  to  have  performed 
the  contract  entitling  him  to  an  installment  of 
the  price. — Schillinger  Bros.  &  Co.  v.  Bosch- 
Ryan  Grain  Co.  (Iowa)  96L 

S  284.  Where  a  contract  for  erection  of  a 
Bchoolhouse  provided  that,  if  the  architects 
were  discharged,  the  school  board  should  act 
in  the  place,  and  the  architects  were  discharf;- 
ed  before  the  contractor  sued  to  recover  on  his 
contract,  he  was  not  required  to  demand  his 
final  estimate  from  the  architects  or  explain 
its  absence.— Germain  v.  Union  School  Dist  of 
City  of  Stanton  (Mich.)  524. 

i  295.  Abandonment  of  contract  after  sub- 
stantial performance  held  not  a  completion  of 
the  contract. — Langworthy  Lumber  Co.  v.  Hunt 
(N.  D.)  865. 

I  803.  The  posttlve  declaration  by  one  party 
of  a  determination  which  would  render  a  pre- 
scribed act  by  the  other  futile  excuses' a  speci- 
fied performance  or  tender  thereof. — J.  I.  Case 
Threshing  Mach.  Co.  v.  Johnson  (Wis.)  1037. 

i  305.  An  agreement  by  a  subcontractor, 
constructing  a  gravel  roof  on  a  building,  to  fur- 
nish a  guaranty  against  leakage  is  not  substan- 
tially performed  by  constructing  a  roof  to 
which  no  present  exception  is  taken. — Nichols 
V.  Roberts  (Iowa)  842. 

§  305.  An  owner  held  not  entitled  to  com- 
plain of  the  manner  the  contractor  did  certain 
work. — Schillinger  Bros.  &  Co.  v.  Bosch-Ryan 
Grain  Co.  (Iowa)  961. 

f  305.  Where  a  person  so  acta  in  regard  to 
contractual  relations  that  the  reasonable  infer- 
ence is  that  he  has  abandoned  a  right  held 
that,  an  intent  to  waive  is  implied,  though  there 
is  no  such  intent  in  fact. — McNaughton  t.  Des 
Moines  Life  Ins.  Co.  (Wis.)  764. 

8  312.  In  an  action  for  breach  of  a  con- 
tract, by  which  defendant  agreed  not  to  engage 
in  the  business  of  pharmacy  or  the  practice  of 
medicine  in  a  town  for  a  certain  time,  facts 
Md  not  to  show  a  substantial  breach  of  the 
agreement,  as  required  under  Rev.  Civ.  Code, 
Sl  1277,  1278,  in  order  to  recover  the  stijiu- 
lated  forfeiture  on  its  breach. — Browu  v.  fcd- 
sall  (S.  D.)  (ioS. 


Topics,  divisions,  &  section  «)  NUMBERS  In  this  Inds^,  ft  Dec.  ft  Amer.  Digs,  ft  Reporter  Indexes  __. 

Digitized  by  VjOOQ  l€ 


INDEX-DIOEST. 


U61 


i  816.  A  part7,  refasing  to  make  a  payment 
under  a  contract  on  a  specified  ground,  hHd 
to  thereby  waive  all  other  grounds  known  to 
him  at  toe  time.— Schillinger  Bros.  &  Co.  t. 
Bosch-Ryan  Grain  Co.  (Iowa)  961. 

{  319.  A  provision  in  a  building  contract 
held  to  authorize  the  contractor,  earning  an 
installment  of  the  price,  which  is  not  paid, 
to  hold  the  owner  liable  for  the  proportionate 
share  of  the  contract  price  earned  on  abandon- 
ing the  contracts. — Schillinger  Bros.  &  Co.  v. 
Bosch-Ryan   Grain  Co.   (Iowa)  961. 

f  319.  In  an  action  by  a  contractor  on  a 
building  contract,  a  charge  on  measure  of  dam- 
ages held  error. — Germain  v.  Union  School 
Dist  of  City  of  Stanton  (Mich.)  524. 

§  321.  The  rights  of  the  parties  in  respect 
to  a  breach  of  contract  become  fixed  at  the 
time  thereof.— Malneg  v.  Hatten  Lumber  Co. 
(Wis.)  1057. 

i  321.  A  person  may  breach  his  contract 
and  subject  himself  to  damages  necessary  to 
remedy  the  breach.— Malueg  v.  Hatten  Lumber 
Co.   (Wis.)   1057. 

{  322.  In  an  action  for  defendant's  breach 
of  a  contract  by  which  plaintiff  was  to  conduct 
a  branch  agency  for  the  sale  of  defendant's 
products,  by  failing  to  give  sufficient  instruc- 
tions upon  the  busmess,  as  well  as  by  misrep- 
resentations as  °to  the  necessity  of  experience 
therein,  evidence  as  to  plaintiff's  difficulty  in 
procuring  canvassers,  and  as  to  the  results  ob- 
tained, were  admissible  on  the  sufficiency  of 
the  instruction  and  on  the  misrepresentations 
alleged.— Ward  v.  Cook  (Mich.)  785. 

&  322.  Evidence,  in  an  action  on  a  contract 
whereby  plaintiff  printing  company  agreed  to 
print  and  distribute  an  advertising  calendar, 
held  insufficient  to  make  a  prima  facie  case  of 
delivery  of  the  calendar  as  required. — ^Phillii>s 
T.  Menomonie  Hydraulic-Press  Brick  Co. 
(Minn.)  874. 

I  323.  In  an  action  for  defendant's  breach 
of  a  contract  by  which  plaintiff  was  to  estab- 
lish a  branch  sales  a|[ency  for  defendant's  prod- 
ucts, by  failing  to  instruct  defendant  in  the 
business,  whether  defendant  in  good  faith  ^ave 
plaintiff  reasonable  instruction  held  a  jury 
question. — Ward   v.   Cook   (Mich.)    783. 

VI.  ACTIONS  FOR  BREACH. 

{  340.  In  an  action  for  the  breach  of  a 
written  agreement,  where  defendant  admitted 
the  execution  of  the  agreement  alleged,  he 
should  have  specifically  alleged  want  of  con- 
sideration in  order  to  raise  that  defense,  and 
did  not  do  so  by  a  general  denial  preceding 
the  admission  of  its  execution. — Brown  v.  Eu- 
sall  (S.  D.)  658. 

§  346.  In  an  action  by  contractor  for  work 
done  and  materials  furnished,  under  a  contract, 
the  pleadings  hdd  to  present  the  question  of 
the  owner's  waiver  of  defects  in  performance. — 
Schillinger  Bros  &  Co.  v.  Bosch-Ryan  Grain 
Co.   (Iowa)   901. 

§  349.  In  an  action  for  breach  of  contract  by 
which  plaintiff  waa  to  establish  a  branch  agency 
for  the  sale  of  defendant's  products,  and  by 
false  representations  made  as  an  inducement 
thereto,  letters  to  defendant  from  plaintiff's  at- 
torneys rescinding  the  contract  and  tendering 
the  goods  on  hand  were  admissible  to  show  re- 
scission.—Ward  v.  Cook  (Mich.)  785. 

g  349.  In  an  action  for  defendant's  breach 
of  a  contract  by  which  plaintiff  was  to  conduct 
a  branch  sales  agency  for  sale  of  defendant's 
goods,  OS  well  as  by  misrepresentations  to  in- 
duce plaintiff  thereto,  a  letter  notifying  defend- 
ant that  his  agent  had  opened  up  i.he  office  and 
of  the  nonarrival  of  the  goods,  and  relating 
to  insuring  them  and  defendant's  answer,  held 
admissible. — Ward  v.  Cook  (Mich.)  783. 


S  349.  In  an  action  for  breach  of  an  agree- 
ment by  defendant  to  refrain  from  practicing 
medicine  or  pharmacy  upon  selling  the  drug 
store  and  good  will,  evidence  that  defendant 
had  treated  only  a  few  patients,  who  would 
not  have  called  on  plaintiff,  and  that  certain 
calls  were  not  professional,  held  admissible  to 
show  that  defendant  conformed  to  the .  spirit 
of  the  agreement.— Brown  v.  Kdsall  (S.  D.) 
658. 

(  350.  Evidence  held  to  show  complainant 
abandoned  his  contract,  by  which,  for  an  in- 
terest in  the  patent,  he  was  to  furnish  money 
for  defendant  to  make  a  model,  and  get  it  pat- 
ented.—Youngquist  V.  C.  H.  Bloomstrom  Motor 
Co.  (Mich.)  1087. 

{  353.  In  an  action  for  breach  of  an  a^ee- 
ment  by  defendant  to  refrain  from  practicing 
medicine  upon  selling  plaintiff  his  .medical 
business  and  drug  store,  refusal  to  iustruct 
that,  if  defendant  obtained  plaintiff's  promise 
to  visit  certain  patients,  plaintiff  could  not 
recover,  held  error  under  the  evidence. — Brown 
V.  Edsall  (S.  D.)  638. 

CONTRADICTION. 

Of  witness,  see  Witnesses,  g  398. 

CONTRIBUTION. 

Between  co-tenants,  see  Tenancy  in  Common, 

S  36. 
Promises  to  contribute,  see  Subscriptions. 

CONTRIBUTORY  NEGLIGENCE. 

See  Negligence,  U  67,  82. 


CONTf^OVERSY. 


Want  of  as  ground  for  dismissal  of  appeal,  see 
Appeal  and  Error,  $  781. 

CONVERSION. 

Wrongful  conversion  of  personal  property,  see 
Trover  and  Conversion. 

CONVEYANCES. 

In  fraud  of  creditors,  see  Fraudulent  C!onvey- 
ances. 

Conx'eyance*  (y  or  to  particular  cUttiei  of 
pertonn. 
See  Husband  and  Wife,  8  49^ ;    Insane  Per- 
sons, i  65. 

Convevance*  of  particular  tpecie*  of,  or  ettate* 

or  intere»t»  in,  property. 
See  Easements,  gg  16,  36. 
Mortgaged  property,  see  Mortgages,  g  292. 

Particular   clattei*    of   convet/anoet. 
See  .Assignments;    Assignments  for  Benefit  of 
Creditors ;  Chattel  Mortgages ;  Deeds ;  Mort- 
gages. 

CONVICTS. 

Pardon,  see  Pardon. 

CORPORATIONS. 

Quo  warranto,  see  Quo  Warranto. 
Taxation  of  corporations  and  corporate  prop- 
erty, see  Taxation,  gg  276,  367. 

Particular  clasiet  of  corporations. 
See    Beneficial    .Associations ;     Municipal    Cor- 
porations ;    Railroads ;    Street  Railroads. 
Banks,  see  Banks  and  Banking. 
Charitable  corporations,  see  Charities,  g  39. 
Insurance  companies,  see  Insurance. 


For  cases  In  Dec.  Dig.  ft  Amer.  Digs.  1907  to  date  ft  Indexes  see  same  topic  ft  section.({)  NUMBBR 

Digitized  by  VjOOQ  l€ 


1162 


122  NORTHWESTBRN  REPORTEE. 


Telegraph  and  tele^^one  companies,  see  Tele- 
graphs and  Telepnones. 

Trust  companies,  see  Banks  and  Banking,  f| 
311,  814. 

Z.  INOOBFOBATIOH  AKD  OBOAH- 
IZATIOir. 

Special  or  local  laws  prohibiting  grant  ot  cor- 
porate charters,  see  Statutes,  §  80. 

S  14.  Under  St  1898,  f  1771,  a  corporation 
may  be  organized  to  operate  a  franchise  grant- 
ed by  Laws  1901,  p.  682,  c.  462,  to  erect  a 
power  dam  in  the  Wisconsin  river. — In  re  South- 
em  Wisconsin  Power  Co.  (Wis.)  801,  800 ;  Ap- 
peal of  Black  Hawk  Land  Go.  (Wis.)  801 ;  Ap- 
peal ot  Whitnall  (Wis.)  800. 

f  30.  Promoters  of  a  corporation  sustain 
a  fiduciary  relation  toward  other  stockholders 
and  creditors.— Torrey  v.  Toledo  Portland  Ce- 
ment Co.  (Mich.)  614. 

IV.  CAPITAIi,  STOCK,  AHD  DXVZ- 
DEND8. 

Liabilities  of  corporate  officers  for  fraud  in 
inducing  sale  of  stock  as  affected  by  require- 
ments of  statute  of  frauds,  see  Frauds,  Stat- 
ute of,  §  39. 

Liability  of  shares  of  stockholders  to  taxation, 
see  Taxation,  S  329. 

(C)  Issue  ot  Oertifieates. 

I  99.  Promoters  of  a  corporation  held  lia- 
ble for  stock  issued  to  them,  for  which  the 
corporation  received  nothing  in  return.— Tor^ 
rey  t.  Toledo  Portland  Cement  Co.  (Mich.) 
614. 

{  99.  A  contract,  whereby  parties  holding  an 
option  on  mining  property  were  to  sell  the  same 
to  a  corporation  at  an  advance  over  the  option 
price,  and  to  receive  in  payment  money  and 
stock  of  the  corporation,  held  not  violative  of 
Const  art.  17,  $  8,  or  of  Rev.  Civ.  Code,  IS  1271, 
1272.— Chambers  v.  Mittnacht  (S.  D.)  434. 

(B)  lBt«>«s4,  Dividends,  aAd  New  Stoelc. 

Rights  of  life  tenant  see  Life  Estates,  |  15. 

V.  MZaCBERS    AND    STOCKHOUIEBS. 

(A)  Rlskts  and  l.labllltles  •■  to  Cor- 
poration. 

Discovery  proceedings  to  obtain  inspection  of 

books,  see  Discovery,  ig  88,  97. 
Requiring   corporation    to   allow   inspection   of 

books  as  constituting  unreasonable  search,  see 

Searches  and  Seizures,  {  7. 

VI.   OFFICEB8  Aim  -AOENTS. 

(D)  lilablUty   tor  Corporate  Debts  and 
Acts. 

Liabilities  of  corporate  officers  for  fraud  in  in- 
ducing sale  of  stock  as  affected  by  require- 
ments of  statute  of  frauds,  see  Frauds,  Stat- 
ute of,  (  39. 

i  338.  Under  Comp.  Laws  1897,  H  6840.  0842 
<Pub.  Acts  1903,  p.  372,  No.  232,  |  12),  as 
amended  by  Pub.  Acts  1905,  p.  283,  No.  194,  { 
1,  the  directors  of  a  navigation  corporation  or- 
ganized under  Comp.  Iiaws  1897,  c.  181,  held 
liable  for  corporate  debts  where  they  refused  to 
sien  annual  reports. — Deloria  t.  Atkins  (Mich.) 
559. 

f  342.  Where  defendant  carried  on  a  manu- 
facturing business  in  the  name  of  a  company 
and  for  its  benefit,  under  an  agreement  that  he 
assumed  no  liability  if  the  business  failed,  he 
was  not  liable  to  the  company's  assignee  for 
money  advanced  and  expended  in  the  business 
under  an  aRrecment  between  the  company  and 
a  bank.— Monroe  v.   Bushnell   (Mich.)   iiOS. 


i  SM.  That  plaintiff  sent  a  dieck  to  Us  at- 
torney, and  had  it  certified  and  held  until  trial, 
which  check  was  sent  to  him  as  his  interest  in 
a  corporation  on  its  dissolution,  would  not  pre- 
vent him  from  suing  to  recover  damages  caused 
by  fraudulent  representations  which  induced  him 
to  invest  money  in  the  corporate  business. — 
Maasey  v.  Luce  (Mich.)  514. 

g  36L  In  an  action  to  recover  money  claimed 
to  have  been  paid  into  defendants'  corporate 
business  because  of  fraudulent  representations 
by  defendants  as  to  the  condition  of  the  busi- 
ness, etc.,  plaintiff's  evidence  held  not  inconsist- 
ent with  the  theory  that  the  fraudulent  repre- 
sentations were  made  concerning  the  corpora- 
tion, though  plaintiff  did  not  at  the  time  know 
the  business  was  a  corporation.— Massey  v.  Luce 
(Mich.)  614. 

Vn.  COBSOKATE  POWXS8   AKD 
XJABIUTIES. 

(A)  Extent  and  Kserclse  ot  Povrera  im 
General. 

Joinder  of  canse  of  action  against  railroad  com- 
mission with  cause  against  third  person  to 
prevent  compliance  with  order  of  commission, 
see  Action,  {  60. 

I  382.  Speculatiye  transactions  by  a  corpo- 
ration orrauized  to  huy  and  sell  gitin  and  lire 
stock  held  ultra  vires  and  void.— -Farmers'  Co.- 
op.  Shipping  Ass'n  v.  George  A.  Adams  Grain 
Co.  (Neb.)  66. 

I  388.  A  corporation  hdd  to  have  had  a  part 
of  the  benefit  of  an  entire  contract  for  the  sale 
of  cream  separators,  and  could  not  therefore 
maintain  the  defense  of  ultra  vires  to  an  ac- 
tion for  the  balance  due.— Vermont  Farm  Ma- 
chinery Co.  v.  De  Sota  Co-OperatiTe  Creamery 
Co.  (Iowa)  930. 

J  388.  The  defense  of  ultra  vires  is  avail- 
e  only  where  the  contract  is  executory,  and 
not  where  the  corporation  has  received  the 
consideration  for  the  agreement— Vermont  Farm 
Machinery  Co.  y.  De  Sota  Co-Operative  Cream- 
ery Co.  (Iowa)  030. 

(B)  Representation  ot  Corporation  br  Of- 
ficers and  Asrents. 

S  399.  The  manager  of  a  corporation  orsan- 
ized  to  buy  and  sell  grain  and  live  stock  held 
without  apparent  authority  to  speculate  in 
grain  or  mess  pork  upon  a  board  of  trade,  and 
the  corporation  not  bound  thereby. — Farmers' 
Co-op.  Shipping  Ass'n  t.  George  A.  Adams 
Grain  Co.  (Neb.)  55. 

(C)  Property  and  Oonveyaneea. 

i  434.  A  franchise  granted  to  individuals 
by  Laws  1901,  p.  682,  c.  462.  to  construct  a 
dam  in  the  Wisconsin  river  held  assignable, 
under  St  1898,  S  1775a,  to  a  corporation  or- 
ganized under  chapter  88. — In  re  Southern  Wis- 
consin Power  Co.  (Wis.)  801,  809;  Appeal  of 
Black  Hawk  Land  Co.  (Wis.)  801;  Appeal  of 
Whitnall   (Wis.)   809. 

i  434.  Laws  1901,  p.  682,  c.  462,  granting 
a  franchise  for  the  construction  of  a  power 
dam,  and  section  4,  providing  that  no  coniorate 
powers  were  intended  to  be  granted,  did  not 
prohibit  the  acquirement  or  exercise  of  the 
franchise  by  a  corporate  entity. — In  re  South- 
em  Wisconsin  Power  Co.  (Wis.)  801,  809;  Ap- 
peal of  Black  Hawk  Land  Co.  (Wis.)  801 ;  Ap- 
peal of  Whitnall  (Wis.)  809. 

(D)  Contracts  and  Indebtedness. 

i  449.  The  common  law  held  to  condemn  only 
unjust  discriminations  by  public  service  corpora- 
tions.—City  of  Superior  v.  Douglas  Coontj 
Telephone  Co.  (Wis.)  1023. 

(F)  Civil  Actions. 

8  513.  The  petition,  in  an  action  against  an 
individual    nndf  a    corporation,    held    sufficient 


Topic*,  division*.  &  secUon  ({)  NUMBERS  in  this  Index.  *  D*e.  *  Amsr.  Digs.  4k  Rqwrtsr  Indasss  sgree 

Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1163 


to  authoilM  proceedines  against  thn  corpora- 
tion, and  to  advise  it  of  tlie  nature  of  plaintiff's 
claim  a^inst  it — GiiamberB  v.  Mittnacnt  (S.  D.) 
434. 

Vm.  IN80LVEN0T  AND  BEOEIVEBS. 

Single  canse  of  action  for  appointment  of  re- 
ceivers and  payment  of  claim,  see  Action,  { 
98. 

zi.  DX880]:.unoir  and  fobfeitvbe 

OF  FRANOHISIi. 

§  615.  Tlie  conrt  in  a  suit  to  wind  up  a 
corporation  cannot  render  judgment  for  plain- 
tiff as  a  creditor  of  the  corporation  and  a  like 
judgment  in  favor  of  the  corporation  against 
officers  on  an  ordinary  account  alleged  to  be 
due  from  them  to  it— Seering  v.  Black  (Wis.) 
1056. 

!  616.  Equity  will  entertain  a  suit  by  a 
judgment  creditor  to  wind  up  an  insolvent  or 
dissolved  corporation. — Seering  v.  Black  (Wis.) 
1065. 

I  617.  Debts  due  a  corporation  heid  not  ex- 
tinguished upon  its  dissolution,  but  to  go  to 
the  person '  legally  entitled  to  the  property. — 
Gedms  v.  Northwestern  Trust  Co.  of  Omaha, 
Neb.  (S.  D.)  58T. 

S  621.  A  cconplaint  in  an  action  against  a 
dissolved  corporation  and  its  officers  by  a  cred- 
itor and  stockholder  hdd  to  state  a  cause  Of 
action.— Seering  v.  Black  (Wis.)  1055. 

I  621.  Equity  at  the  suit  of  a  stockholder  of 
a  dissolved  corporation  heid  anthwized  to  en- 
tertain a  windmg  up  suit  and  appoint  a  re- 
ceiver to  perform  the  duties  imposed  on  the 
officers  by  St  1898,  i  1764.— Seering  v.  Black 
(Wis.)  1055. 

XH.  FOBEIOH   OOBFOKATIONS. 

Assignment  of  claim  against  foreign  corporation 
for  breach  of  warranty,   see  Assignments,  f 

Kegulations  interfering  with  interstate  com- 
merce, see  (Commerce,  |  46. 

i  668.  A  foreign  corporation  doing  business 
in  Michigan  was  estopped  to  set  up  as  a  de- 
fense that  its  transactions  in  that  state  were 
unlawful  because  of  its  failure  to  comply  with 
the  state  laws. — Showen  v.  J.  L.  Owens  Co. 
(Mich.)  640. 

S  662.  Pub.  Acts  1901.  p.  316,  No.  206,  as 
amended  by  Pub.  Acts  1903,  p.  40,  No.  34,  Pub. 
Acts  1907,  p.  413,  No.  310,  and  Pub.  Acts  Ex. 
Sess.  1907,  p.  9,  No.  3,  held  to  subject  foreign 
corporations  doing  business  within  the  state  to 
the  same  liabilities  and  remedies  as  domestic 
corporations,  with  reference  to  local  business.— 
Showen  v.  J.  L.  Owens  Co.  (Mich.)  640. 

i  668.  Under  Pub.  Acts  1901,  p.  316,  No. 
206,  as  amended  by  Pub.  Acts  1903,  p.  40, 
No.  84,  Pub.  Acts  1907,  p.  413,  No.  310.  Pub. 
Acts  Ex.  Sess.  1907,  p.  9,  No.  3,  and  Comp. 
Laws  1897,  |  10,442,  providing  for  actions 
against  foreign  corporations,  should  be  cou- 
strned  as  apiilioable  only  to  foreign  corpora- 
tions transacting  interstate  commerce.— Snow- 
en  ▼.  J.  L.  Owens  Co.  (Mich.)  640. 

I  670.  Under  Comp.  Laws  1807,  H  10,474, 
10,555,  10,556,  10,559.  10,560,  10,571,  10,576, 
service  of  an  attachment  on  the  resident  agent 
of  a  foreign  corporation  conferred  jurisdiction 
in  personam. — Showen  t.  J.  L.  Owens  Co. 
<Mich.)  640. 

CORRECTION. 

Of  court  records,  see  Courts,  |  116, 
Of  judgment,  see  Judgment,  j  303. 
Of  record  on  appeal  or  writ  of  error,  see  Appeal 
and  Error,  H  635-655. 


CORROBORATION. 

Of  witness  in  general,  see  Witnesses,  H  817, 
324. 

COSTS. 

In  certiorari  proceedings,  see  Certiorari,  f  71. 

In  proceedings  in  state  court  after  erroneous 
refusal  to  transfer  cause  to  Federal  Court,  see 
Removal  of  Causes,  {  97. 

Necessity  of  statetoent  of  in  judgment,  see 
Judgment  §  224. 

Payment  of,  as  condition  to  voluntary  dismis- 
sal of  appeal,  see  Appeal  and  Error,  (  776. 

Review  of  decisions,  see  Appeal  and  Error,  Si 
700,  984. 

I.  NATUBE,  GBOimDS.  AITD  EXTENT 
OF  BIOHT  IN  OENERAI.. 

I  3.  In  taxing  costs  in  law  cases,  the  courts 
have  only  those  i^hls  expressly  or  impliedly  giv- 
en by  statute.— Wold  t.  South  Dakota  Cent 
Ry.  Co.  (S.  D.)  583. 

I  22.  St  189S,  I  2918,  subd.  6,  as  amended 
in  1881,  80  as  to  allow  costs  to  plaintiff  in  an 
action  on  contract  if  he  recovered  $100,  held 
not  to  affect  subdivision  7,  so  that,  in  an  action 
on  contract  for  $236,  where  the  amount  re- 
covered was  $93.  plaintiff  was  properly  allowed 
costs  nnder  subdivision  7. — Olson  v.  United 
States  Sugar  Oo.  (Wis.)  776. 

(42.  An  offer  to  confess  judgment  after 
action  brought  relieves  defendant  from  subse- 
quent costs  without  paying  the  money  to  the 
clerk  of  the  conrt— Securl^  State  Bank  of 
Washington  T,  Waterloo  Lodge  No.  102,  A.  F. 
&  A.  M.  (Neb.)  992. 

;  47.  Under  Code  1897,  i  4225,  TieU,  though 
failure  by  defendant  to  file  his  disclaimer  at 
the  appearance  term  deprived  him  of  the  right 
to  demand  an  exemption  from  costs,  the  mat- 
ter was  "in  the  discretion  of  the  court." — 
Dolan  y.  Maxwell  (Iowa)  923. 

Vn.   ON  APPEAX.  OB  EBBOB.  AND 

ON  NEW  TBIAI.  OB  MOTION 

THEBEFOB. 

{  228.  There  being  no  notice  of  trial  on  ap- 
peal from  a  justice,  no  costs  may  be  taxed  for 
proceedings  after  notice  and  before  trial;  the 
statute  not  providing  therefor. — Wold  ▼.  South 
Dakota  Cent  Ry.  Co.  (S.  D.)  583. 

I  254.  St  1898,  i  2921,  providing  for  the 
taxation  of  costs  for  bills  of  exceptions,  does 
not  authorize  costs  for  a  bill  of  exceptions,  for 
the  cost  of  which  respondent  has  already  been 
fully  reimbursed  by  appellant  on  a  former  ap- 
peal,—Dralle  V.  Town  of  Reedsbnrg  (Wis.)  771. 

i  256.  Under  Supreme  Court  mie  4^  (106  N. 
W.  viii),  the  costs  for  printing  a  case  on  ap- 
peal not  complying  with  rule  6  cannot  be  al- 
lowed.— Roach  V.  Sanborn  Land  Co.  (Wis.) 
1020. 

i  258.  An  apiiellant  preparing  his  brief  in 
violation  of  Supreme  Court  Roles  9,  10,  11, 
and  12  (108  N.  W.  vi)  held  not  entitled  to  costs 
for  expense  of  printing  the  case  or  brief.— Peck 
T.  City  of  Baraboo  (Wis.)  740. 

▼HI.  PAYMENT  AND  BEICBDIES 
FOB  COLLECTION. 

I  283.  Under  Code  1897,  K  3801,  3802,  a 
judgment  held  a  lien  against  real  estate  of  a 
widow  to  which  she  secured  title  through  a  de- 
cree in  probate. — In  re  Brandes'  Estate  (Iowa) 
0o4 ;   Hoyer  v.  Buchbolz,  Id. 

CO-TENANCY. 

See  Tenancy  in  Common. 


For  caies  In  Dec.  Dig.  *  Amer.  Digs.  1907  to  date  ft  Indexes  ue  same  topic  *  SMiUonXi)  NUMB&R 

Digitized  by  dOOQ  IC 


1164 


122  NORTHWESTERN  REPORTER. 


COUNCIL 

See  Municipal  Corporations,  {|  60,  84,  120. 

COUNTERCLAIM. 

Set  Set-Off  and  Counterclaim.  ' 

COUNTIES. 

See  Municipal  Corporations. 

IX.   GOVEBKMEKT  AND  OFFICERS. 
(B)   Conntr  Seat. 

Persons  entitled  to  question  constitutionality  to 
county  seat  removal  election,  see  Constita- 
tional  Law,  S  42. 

(O  County   Bofurd. 

$  43.  Notwithstanding  the  new  members  of 
a  board  of  county  commissioners  did  not  quali- 
fy until  after  1:30  o'clock  p.  m.  on  the  first 
day  of  the  new  official  year,  held,  that  the  old 
board  was  not  vested  with  authority  in  the 
meantime  during  that  day  to  appoint  a  sheriff. 
—State  T.  Mcintosh  (Minn.)  462. 

i  47.  County  commissioners  possess  both  the 
powers  expressly  conferred  by  statute  and  those 
necessary  to  discbarge  their  official  duties. — 
Berryman  v.   Schahlander  (Neb.)  990. 

i  57.  The  official  record  of  a  board  of  super- 
visors cannot  be  attacked  in  a  collateral  pro- 
ceeding by  parol  evidence. — Derosia  y.  Loree 
(Mich.l  357. 

f  57.  Mandamus  proceedings  to  compel  a 
county  treasurer  to  issue  a  receipt  to  a  liquor 
dealer,  on  tender  of  a  bond,  based  on  the  in- 
validitjr  of  an  election  by  which  the  sale  of  in- 
toxicating liquor  was  prohibited,  held  to  be  a 
collateral  attack  on  the  official  record  of  the 
county  supervisor.— Derosia  v.  Loree  (Mich.) 
357. 

(O)  Ofllcera  and  Asenta. 

Amendment  as  to  parties  in  proceedings  to  com- 
pel county  treasurer  to  deposit  funds,  see 
Parties,  f  95. 

Computation  of  period  of  limitation  of  action 
to  recover  taxes  illegally  kept  by  treasurer  as 
compensation,  see  limitation  of  Actions,  S 
66. 

Validity  of  law  requiring  deposit  of  county 
funds  as  impairing  vested  rights  of  county 
treasurer,  see  Constitutional  Law,  $  102. 

HI.  PBOPEBTT,  OONTBAOTS,  Ain> 
UABII.ITIES. 

(C)  ConmtT    Bzpenaea    and    Charsc*    and 
Statatory  I.tnblIttteB. 

Expenses  of  maintaining  quarantine,  see  Health, 

i  16. 

§  138.  The  county  board  may  lawfully  reim- 
burse a  county  attorney  for  expenses  in  defend- 
ing actions  against  the  county. — Berryman  v. 
Schahlander   (Neb.)  990. 

§  139.  The  coanty  board  may  lawfully  re- 
imburse the  county  attorney  for  expenses  in 
the  prosecution  of  criminal  cases. — Berryman 
V.  Schahlander  (Neb.)  990. 

IV.    FISOAI.    MANAOEMENT,    PUBUC 

DEBT,   SECUBITIES,  AKD 

TAXATIOH. 

Amendment  as  to  parties  in  proceedings  to 
compel  county  treasurer  to  deposit  funds,  see 
Parties,  §  i>5. 

Bond  of  bank  for  payinent  of  deposit  of  county 
funds  as  constituting  illegal  increase  of  lia- 
bility, see  BankR  and  Banking,  f  200. 


Validity   of   law   requiring  de^sit  of  county 

funds   as  impairing  vested  rights  of  county 

treasurer,  see  Constitutional  Law,  i  102. 

f  178.    Rev.  Codes  1905,  |  2565,  requiring  a 

county  building  bond  issue  election  to  be  upoq 

the  notice  therein  prescribed,  held  not  complied 

with,    and    the   election    thereby    rendered    in- 

valid.— Hughes  v.  Horsky  (N.  D.)  799. 

I  178.  Where  the  erection  of  a  combined 
courthouse  and  jail  is  contemplated,  and  the 
notice  so  indicates,  the  question  of  issuing  bonds 
as  authorized  by  Rev.  Codes  1905,  §  2563,  may 
be  submitted  and  voted  upon  as  one  question; 
otherwise,  where  two  separate  buildings  ara 
planned.— Hughes  v.  Horsky  (N.  D.)   799. 

VI.  ACTIONS. 

Amendment  as  to  parties  in  proceedings  to  com- 
pel county  treasurer  to  deposit  funds,  see  Far- 
ties,  I  95. 

COUNTY  BOARD. 

See  Counties,  §S  43-67. 

COUNTY  TREASURER. 

Amendment  as  to  parties  in  proceedings  to 
compel  deposit  of  funds  by,  see  Parties,  i  95. 

Validity  of  law  requiring  deposit  of  county 
funds  as  impairing  vestra  rights  of,  see  Con- 
stitutional Law,  {  102. 

COUPLERS. 

Assumption  of  risk  incident  to  use  of  defect- 
ive couplers,  statutory  regulations,  see  Mas- 
ter and  Servant,  i  204. 

Automatic  couplers,  statutory  requirements  in 
general,  see  Railroads,  {  229. 

COURTS. 

Judges,  see  Judges. 

Judicial  power,  see  Constitutional  Law,  fj  6S* 

74. 
Justices'  courts,  see  Justices  of  the  Peace. 
Mandamus  to  inferior  courts,  see  Mandamus, 

iS  28,  37. 
Province  of  court  and  jury,  see  TriaL  H  186- 

199. 
Removal  of  action  from  state  court  to  TJnited 

States  court,  see  Removal  of  Causes. 
Review  of  decisions,  see  Appeal  and  Error. 
Right  to  trial  by  jury,  see  Jury,  {{  17-34. 
Supervision  of  execution  of  power,  see  Powers,  | 

Trial  by  court  without  jury,  se«  Trial,  U  395, 
404. 

Jurisdiction  of  particular  action*  or  pro- 
needinQ*. 
For  removal  of  officers,  see  Officers,  {  72. 
To  revive  judgment,  see  Judgment,  §  806. 

I.  NATUBE,  EXTENT,  AND  EXEBCISB 
OF  JXTBISDICTION  IN   GENEBAIm 

S  2.  The  test  of  jurisdiction  hdd  whether  a 
court  had  power  to  enter  upon  the  inquiry,  not 
whether  its  methods  were  regular,  etc.— Radii 
V.   Sawyer  (Neb.)  980. 

{  18.  County  court  held  without  authority  to 
adjudicate  the  ri^ht  to  curtesy  in  real  estate  in 
another  state.— Higgins  v.  Vandeveer  (Nek)  843. 

{  35.  It  will  be  assumed,  in  support  of  the 
jurisdiction  of  a  court  of  general  jurisdiction, 
that  notice  was  given  to  the  proper  parties  and 
the  one  attacking  an  order  of  such  court  has 
the  burden  to  show  that  the  order  was  made 
without  jurisdiction.— In  re  East  (Iowa)  153. 

{  39.  Where  jurisdiction  of  district  court 
depends  upon  a  question  of  law,  no  finding  of 


Digitized  by  VjOO 


gre- 


INDEX-DIGEST. 


U65 


the  conrt  in  disregard  of  atatntory  proTiBlonft 
will  give  it  jurisdiction.— Radii  t.  Sawyer 
(Neb.)  dSa 

XI.  ESTABLXSHHEirr,   OBGAinZA- 

TION,  AND   PBOCEDTJBE  IN 

GENEBAIi. 

(B)  Terma,  Vacmtlona,  Place  and  Time  of 

Holdlns   Conrt,   ConrtlioaBe*,  and 

Acoommodatlona. 

Jndicial  notice  of,  see  Evidence,  §  41. 
Voluntary  dismissal   of  counterclaim  in  vaca- 
tion, see  Dismissal  and  Nonsuit,  f  32. 

(O)  Rule*      of      Deoiaion,      AdJadteatlOM, 
Oplniona,   and  Hecorda. 

Opinions  as  evidence  of  facts  in  action  for  libel, 
see  liibel  and  Slander,  |  123. 

S  80.  The  value  of  a  decision  as  a  precedent 
held  determined,  not  only  by  identity  of  facts, 
but  of  the  principle  upon  which  based. — An- 
derson v.  Pittsburg  Coal  Co.  (Minn.)  704. 

{  02.  A.  case  is  authority  only  on  the  ques- 
tions actually  decided.— First  Nat  Bank  v.  Un- 
ion Trust  Co.  (Mich.)  547. 

{  95.  Decisions  in  other  jurisdictions  that 
under  given  circumstances  a  servant  is  a  fellow 
servant  held  not  controlling,  unless  the  cri- 
terion wliereb;  the  relationship  is  determined  is 
the  same  as  in  this  jurisdiction. — ^Anderson  v. 
Pittsburg  Coal  Co.  (Minn.)  794. 

I  90.  Judgment  rendered  on  demnrrer  held 
conclusive  as  to  the  material  facts  confessed 
by  tlie  demurrer,  but  not  as  to  other  issues 
raised  by  a  new  pleading. — Wapello  State  Sav. 
Bank  v.  Colton  (Iowa)  149. 

§  90.  The  law  applicable  to  the  facts  plead- 
ed, when  once  determined,  becomes  the  law  of 
the  case  until  set  aside  or  vacated  by  proper 
proceedings.— In  re  Cook's  Estate  (Iowa)  57S. 

8  116.  Limitations  held  not  to  present  a  bar 
to  the  power  of  a  court  to  clear  its  records 
of  unauthorized  and  illegal  entries. — Higgins  v. 
Vandeveer   (Neb.)  '643. 

V.   COITBTS  OF  PROBATE  JTJBISDIC- 
TION. 

{  200^.  County  court  held  to  have  jurfsdic- 
tion  to  require  a  personal  representative  to  de- 
liver to  a  surviving  husband  lands  in  the  state. 
—Higgins  T.  Vandeveer  (Neb.)  843. 

I  200V^  A  county  court  held  without  au- 
thority to  adjudicate  between  the  surviving 
husband  and  his  wife's  devisees  concerning  his 
right  to  an  estate  by  the  curtesy. — Higgins  v. 
Vandeveer  (Neb.)  843. 

§  202.  Under  the  statute  requiring  an  appel- 
lant from  the  probate  conrt  to  state  the  reasons 
for  his  appeal,  he  can  urge  no  other  reason  in 
the  circuit  court.— In  re  Mills  (Mich.)  1080. 

•VUL  COVCVKKESXT  Aim  OOMFUOT. 

XNO  JVBISDICTION,  AKD 

COMTTT. 

Transfer  of  causes  between  dockets,  see  Trial, 
$11. 

COVENANT,  ACTION  OF. 

Enforcement   of   agreement    to    assume   mort- 
gage debt,  see  Mortgages,  {  202. 

COVENANTS. 

C!ovenant  not  to  sue  distinguished  from  release, 

see  Release,  S  7. 
In   insurance  policies,  see  Insurance,  {$  336- 

365. 
To  repair  demised  premises,  see  Landlord  and 

Tenant,  {  152. 


COVERTURE. 

See  Husband  and  Wife. 

CREDIBILITY. 

Of  witness,  see  Witnesses,  f  §  317-^& 

CREDITORS. 

See  Assignments  for  Benefit  of  Creditors; 
Bankruptcy;  Creditors' Suit;  Fraudulent  Con- 
veyances. 

Remedies  against  surety,  see  Principal  and 
Surety,  g  161. 

Rights  as  to  chattel  mortgage  by.  debtor,  see 
Chattel  Mortgages,  §  169.  .      " 

Subrogation  to  rights  of  creditor,  see  Subroga- 
tion. 

CREDITORS'  SUIT. 

Abatement  of  proceedings  on  death  of  defend- 
ant, see  Abatement  and  Revival,  i  68. 

Remedies  in  cases  of  fraudulent  conveyances, 
see  Fraudulent  Conveyances,  §§  239-301. 

$  32.  Where,  in  a  creditors'  suit,  the  debtor 
was  enjoined  from  transferrring  his  property, 
and  a  receiver  was  appointed  to  take  charge  of 
it,  the  debtor  would  be  chargeable  as  for  con- 
tempt of  court  by  tliereafter  transferring  his 
property.— Saginaw  County  Savings  Bank  v. 
Duffield  (Mich.)  186. 

(  36.  Where  judgment  creditors  had  perfect- 
ed a  lien  against  testator's  estate  before  hie 
death  by  the  appointment  of  a  receiver  for  his 
estate  and  serving  an  injunction  upon  him,  they 
did  not  release  their  rights  by  filing  their  claim 
with  the  commissioners  on  claims  after  testa- 
tor's death,  giving  a  complete  history  of  the 
proceeding  by  which  they  had  perfected  their 
lien.— Saginaw  County  Savings  Bank  v.  Duf- 
field (Mich.)  186. 

$  36.  A  judgment  creditor's  lien,  obtained 
before  the  debtor's  death  by  the  serving  of  an 
injunction  and  appointment  of  a  receiver  for 
his  property,  held  superior  to  the  rights  of  the 
debtor's  representative.— Saginaw  County  Sav- 
ings Bank  v.  Duffield  (Mich.)  186. 

S  30.  In  judgment  creditors'  proceedings  un- 
der Comp.  Laws,  §S  4.36,  437,  complaint  held 
to  sufficiently  describe  the  property  within  the 
statute  and  chancery  rule  30,  so  as  to  permit 
a  lien  to  attach  thereto  in  favor  of  the  judg- 
ment creditors.— Saginaw  CTounty  Savings  Bank 
v.  Duffield  (Mich.)  186. 

§  51.  The  decree  in  a  judgment  creditors'  ac- 
tion against  the  executor,  allowing  the  executor 
to  pay  the  judgment  out  of  the  assets  of  the  es- 
tate, or,  in  the  alternative,  to  deliver  assets  to 
that  amount  to  the  receivers  appointed  in  the 
action,  ?ieW  not  prejudicial  to  the  executor.- 
Saginaw  County  Savings  Bank  v.  Duffield 
(Mich.)  186. 

CRIMINAL  LAW. 

Arrest  of  accused,  see  Arrest,  $  62. 

Indictment,  information,  or  complaint,  see  In- 
dictment and  Information. 

Pardon,  see  Pardon. 

Searches  and  seizures,  see  Searches  and  Sei- 
zures. 

0/fen«e*  hv  pariicular  classes  of  persons. 
Bank  officer,  see  Banks  and  Banking,  §  62. 
Officer  of  trust  company,  see  Banks  and  Bank- 
ing, I  314. 

Pariicular  ofensei. 

See  Assault  and  Battery,  {§  48-07;  Embezzle- 
ment; Escape;  False  Pretenses ;  Homicide; 
Larceny;    Rape. 

Against  liquor  laws,  see  Intoxicating  Liquors, 
iiji  145-150,  226-236. 


ror  cues  In  Dec.  Dig.  *  Amor.  Dig*.  1907  to  date  *  Indexes  ■•«  same  topic  *  aacUon  Ci)  NUMBER 

Digitized  by  VjOOQ  IC 


1166 


122  NORTHWESTEJRN  REPORTER. 


Misappropriation  by  officer  of  trust  company, 
see  Banks  and  Banking,  {  314. 

Yinst  banking:  laws,  see  Banks  and  Banking, 
62. 
Against  Sunday  law,  see  Sunday,  {  29. 
Violations  of  municipal  ordinances,  see  Munic- 
ipal Corporations,  f  631. 

m.  FABTIEB  TO   OFFENSES. 

Prisoner  aided  in  escape  as  accomplice  of  per- 
son aiding,  see  Escape,  {  7. 

V.  VENUE. 

(B)  CbanKe  of  Tenne. 

}  121.  Rev.  Codes  1905,  {  9931,  providing 
for  a  change  of  venue  by  the  state,  held  not 
mandatory,  and  such  an  application  is  ad- 
dressed to  the  discretion  of  the  court. — State 
V.  Winchester  (N.  D.)  1111. 

i  121.  No  abuse  of  the  court's  discretion 
held  to  be  shown  in  denying  to  the  state  a 
change  of  venue  in  a  criminal  case. — State  Y. 
Winchester  (N.  D.)  1111. 

§  124.  The  fact  that  accused,  as  sheriff,  sub- 
poenaed the  jury,  held  not  cause  for  a  change 
of  venne.— State  t.  Winchester  (N.  D.)   1111. 

VnZ.  PBEUmNART  COUFXJUNT,  AF. 
FIDAVIT,  WABBANT,  EXAMI- 
NATION, COMMITMENT,  AND 
SUMMABT  TBIAI.. 

In  proceedings  to  punish  for  contempt  by  vio- 
lation of'  injunction  against  sale  of  liquors,  see 
Intoxicating  Liquors,  §  279. 

X.  EVISENOE. 

In  particular  criminal  protecutioni. 

See  Assault  and  Battery,  |  85;  Embezzlement, 
i  44;  Escape.  8  10;  False  Pretenses,  {  43; 
Homicide,  f  169;  Larceny,  S  64;  Rape,  8| 
51-54. 

For  misappropriation  by  officer  of  trust  com- 
pany, see  Banks  and  Banking,  §  314. 

For  violation  of  liquor  laws,  see  Intoxicating 
Liquors,  §§  22&-23& 

(A)  Jadlclal    Notice,    Preanaaptlons,    and 
Burden   ot  Proof. 

Presumptions  as  to  latent  in  prosecution  for 
misappropriation  by  officer  of  trust  company, 
see  Banks  and  Banking,  §  314. 

(C)  other   OSenaea,  and  Character  ot  Ae- 

ooaed. 

{  369.  To  admit  a  conversation  with  accus- 
ed, wherein  he  stated  that  he  had  committed  a 
crime  in  no  way  connected  with  the  one  for 
which  he  was  on  trial,  held  error.— State  v. 
Fournier  (Minn.)  329. 

(D)  MaterlalUr  and  Competenoy   In   Ctea- 

eral. 

{  395.  Intoxicating  liquors  found  in  defend- 
ant's dwelling  bouse  pursuant  to  an  illegal 
search  and  seizure  held  nevertheless  admissible 
against  him  in  a  prosecution  for  selling  liquor 
without  a  license.— State  v.  Madison  (S.  D.) 
647. 

(E)  Beat  and   Secondary  and   Demonatra- 

tlve  Bvldence. 

§  400.  In  cases  involving  the  examination  ot 
long  book  accounts,  it  is  proper  to  permit  ex- 
pert accountants  to  examine  the  accounts  and 
to  give  in  summary  form  the  results  thereof. — 
Ruth  V.  State  (Wis.)  733. 

i  404.  In  a  prosecution  for  seduction,  it  is 
error  to  exhibit  prosecutrix's  child  to  the  jury 
to  determine  a  supiK)sed  resemblance  to  de- 
fendant.—State  Y.   Hunt  (Iowa)   902. 


(I)  Oplaloa  Blyldenee. 

{  449.  Evidence  as  to  good  character  must 
be  as  to  general  reputation  in  the  community 
where  the  person  resides. — State  v.  Magill  (N. 
D.)  330. 

§  476.  A  question  to  a  physician  as  to  the 
cause  of  decedent's  death  was  not  objection- 
able on  the  ground  that  it  called  for  a  concla- 
sion.— State  v.  Kammel  (S.  D.)  420. 

I  479.  A  physician  held  competent  to  testi- 
fy as  an  expert  as  to  whether  a  death  was 
caused  by  arsenic  poisoning. — State  t.  Kam- 
mel (S.  D.)  420. 

{  479.  Where  an  expert  testified  as  to  the 
cause  of  decedent's  death  from  the  fact  as  stat- 
ed by  other  witnesses,  his  testimony  was  not 
objectionable  because  he  did  not  make  any 
examination,  and  decedent  had  been  dead  some 
time  before  be  saw  the  body.— State  v.  Kammel 
(8.  D.)  420. 

(J)  Teatlmony  of  Aoeooiplleea  and  Code- 
fendanta. 

I  B07.  A  general  rule  for  determining  wheth- 
er a  witness  is  an  accomplice  or  not  is  to  de- 
termine whether  he  could  have  been  indicted 
and  convicted  of  the  same  crime.— State  v.  Duff 
(Iowa)  829. 

(H)  'Weight  and   Snflloieney. 

In  particular  criminal  proteoution*. 
See  Embezzlement,  |  44;  Larceny,  (  64;  Rape, 

Si  51-64. 
For  violation  of  liquor  laws,  see  Intoxicating 

Liquors,  {  226. 

Xn.  TBIAIb 

In  particular  criminal  protecutions. 
See  Assault  and  Battery,  §§  96.  97;   Embezzle- 
ment, I  48;  False  Pretenses,  i  51;  Homicide, 
8  313. 

(A)  Preliminary  Proceedlnva. 

Indorsement  of  name  of  stteriff  on  indictment 
as  witness  as  affecting  disqualification  to  sum- 
mon jury  for  trial  of  accused,  see  Jury,  8  70. 

Mayor's  docket  as  documentary  evidence  in 
civil  action,  see  ESvidence,  8  332. 

(B)   Coarse  and  Conduct  of  Trial  la  Gen- 
eral. 

8  633.  The  presence  of  prosecutrix's  child 
in  court  to  corroborate  her  as  to  the  corpus 
delicti  in  a  prosecution  for  seduction  hdd  not 
error.— State  v.   Hunt  (Iowa)  902. 

(C)  Reception  ot  Byldence. 

8  662.  A  search  warrant  under  which  de- 
fendant's premises  were  searched  and  liquora 
seized  is  inadmissible  as  independent  evidence 
where  it  recites  that  complainant,  who  was  not 
a  witness,  stated  under  oath  that  defendant 
was  guilty.— McCabe  v;  State  (Neb.)  8%. 

8  667.  The  Judge  in  his  discretion  may  re- 
fuse to  permit  a  witness  to  testify  in  narrative 
form. — Pumphrey  v.  State  (Neb.)  19. 

8  687.  A  trial  court  held  to  have  properly 
exercised  its  discretion  in  reopening  a  case  for 
the  formal  introduction  in  evidence  of  certain 
exhibits  used  on  the  trial  on  behalf  of  the  prose- 
cution.—People  V.  Blake  (Mich.)  113. 

(B)  Arsumenta    and    Condaot   ot   Coaaael. 

8  706.  The  persistent  asking  by  the  county 
attorney  of  improper  questions  as  to  matters 
likely  to  prejudice  the  jury  held  to  require  a 
new  trial.— State  v.  Fournier  (Minn.)  329. 

8  715.  Argument  of  counsel  in  a  prosecution 
for  seduction  with  reference  to  the  infant  child 
of  prqiiecutrix  present  in  court  held  prejudicial 
error.— State  v.  Hunt  (Iowa)  902. 


Topics,  divisions,  ft  section  (J)  NUMBERS  In  this  Index,  *  Dee.  *  Amer.  Digs.  *  Reporter  Indexaa  ugrm 

Digitized  by  LjOOQ  l€ 


INDEX-t>IGEST. 


116T 


(V7  PrOTlaee  of  Ooort  and  Jnry  la  Oen- 
eml* 

In  proaecntion  tor  false  pretenses,  see  False 
Pretenses,  {  61. 

I  762.  In  a  prosecution  for  selliug  liqnor 
without  a  license,  an  instruction  that  certain 
facts  were  andisputed  held  not  in  violation  of 
Code  Civ.  Proc.  {  256,  as  a  charge  on  the  facts. 
—State  V.  Madison  (S.  D.)  6477 

(O)  Meeeaaltr,  Reanialtea,  and   Snfflcieney 
of  Imatrvetlona. 

In  prosecntion  for  assault,  see  Assanlt  and  Bat- 
tery, i  96. 

In  prosecution  for  embezzlement,  see  Embezzle- 
ment, i  4& 

§  784.  In  a  prosecution  for  the  larceny' of 
cattle,  in  which  the  evidence  was  wholly  cir- 
cumstantial, the  correct  instruction  as  to  the 
degree  of  proof  required  stated. — State  T.  Clark 
(Iowa)  d57. 

I  784.  An  instruction  on  circumstantial  eTi- 
dtoce,  which  omitted  to  charge  as  to  the  de- 
gree of  proof  required  to  establish  the  essen- 
tial circumstances,  hM  insufflcienL— State  v. 
Clark  (Iowa)  957. 

(  814.  In  a  prosecution  of  a  druggist  for 
selling  liquor  in  violation  of  the  local  option 
law,  a  requested  instruction  held  proi)erly  re- 
fused as  inapplicable.— People  v.  Van  Alstyne 
(Mich.)  193. 

I  814.  Where  the  evidence  shows  that  the 
accused  is  either  guilty  of  the  crime  charged 
or  not  guilty  of  any  offense,  the  court  is  not 
required  to  instruct  on  a  lower  degree  of  crime 
included  in  the  offense.— Thompson  t.  State 
(Neb.)  986. 

§  822.  The  mere  use  of  the  word  "unlawful" 
in  defining  manslaughter  held  not  misleading. — 
Boche  V.  State  (Neb.)  72. 

(H)  Reaneata    for    laatraotloaa. 

(  829.  In  a  prosecution  of  a  druggist  for  the 
selling  of  liqnor  in  violation  of  the  local  option 
law  by  permitting  it  to  be  drunk  on  the  prem- 
ises, a  requested  instruction  held  sufficiently 
covered  by  that  given.— People  v.  Van  Alstyne 
(Mich.)  193. 

I  829.  It  is  not  error  to  refuse  an  instruc- 
tion substantially  covered  by  one  already  given. 
-Thompson  v.  State  (Neb.)  986;  State  v. 
Hayes  (S.  D.)  652. 

{  829.  Where  the  trial  court  by  proper  In- 
structions submitted  to  the  Jury  the  credibility 
of  all  the  witnesses  who  testified,  there  was  no 
error  in  refusing  an  instruction  referring  only 
to  .the  credibility  of  one  of  them.— Seele  v.  State 
(Neb.)  686. 

S  829.  In  a  murder  prosecution,  a  requested 
charge  upon  the  sufficiency  of  the  evidence  and 
upon  the  necessity  of  showing  guilt  beyond  a 
reasonable  doubt  held  fully  covered  by  charge 

fiven,  so  that  it  was  properly  refused.— State  v. 
[ammei  (S.  D.)  420. 

{  830.  A  requested  instruction  which  is  not 
a  correct  statement  of  the  law  applicable  to  the 
theory  of  accused  is  properly  refused.- Stevens 
T.  State  (Neb.)  58. 

I  834.  The  trial  court  need  not  instruct  in 
the  exact  language  of  the  request,  though  it  be 
correct,  but  may  instnict  in  its  own  language. 
— SUte  T.  Kammel  (S.  D.)  420. 

(K)  Verdlet. 

In  prosecution  for  assault  and  battery,  see  As- 
sault and  Battery,  S  97. 

In  prosecution  for  homicide,  see  Homicide,  i 
313. 

I  878.  In  a  trial  for  making  false  entries  in 
the  books  of  the  bank  of  wliich  accused  was 


cashier  and  in  a  report  of  the  bank,  a  verdict 
of  guilty  held  based  on  a  finding  that  accused 
falsified  the  report  respecting  an  item  as  cbarg- 
ed  in  the  information.— Ruth  v.  State  (Wis.) 
733. 

I  883.  The  judgment  must  be  based  on  a 
sufficient  indictment  or  information,  or,  if  ac- 
cused is  found  guilty  of  a  less  offense,  the  Jury 
must  find  its  essential  elements. — State  v.  Pe- 
terson (S.  D.)  667, 

Xm.  MOTIONS  FOB  NEW  TBIAIi 
AND  IN  AXtREST. 

f  939.  Denial  of  motion  for  new  trial  held 
not  an  improper  exercise  of  discretion  where 
based  on  the  discovery  of  new  evidence  which 
might  have  been  called  to  the  court's  attention 
before  verdict— Liniger  v.  State  (Neb.)  705. 

8  954.  An  assignment  of  error  on  motion  for 
new  trial  in  a  criminal  case  criticizing  a  group 
of  instructions  will  be  overruled  unless  all  the 
instructions  are  erroneous. — ^Liniger  v.  State 
(Neb.)  706. 

XIV.  JUDGMENT.   SENTENCE,  AND 
FINAL   COMMITMENT. 

Effect  of  reversal  of  conviction,  as  evidence  on 
question  of  probable  cause,  see  Malicious 
Prosecntion,  {  24. 

ZV.  AFPEAI.  AND  EBBOB»  AND 
OEBTIOBABI. 

(A)  Form    of    Remedy,    Jnrladletlon,    and 

RtKht   of  ReTtew. 

{  1018.  Certiorari  to  a  justice  court  will  lie 
to  review  its  action  in  sentencing  a  young  girl 
to  the  reform  school.— People  t.  Turja  (Miclu) 
177. 

§  1023.  A  cause  on  exceptions  before  sentence 
on  a  conviction  after  trial  by  jury  must  on  ob- 
jection be  dismissed  because  of  the  absence  of  a 
judgment.— Village  of  Lake  Odessa  v.  Randall 
(Mich.)  517. 

(B)  Preaentatlon  and  Reservation  In  Iiow- 

er  Conrt  of  Oronnda  of  Review. 

{  1043.  An  objection  to  the  admission  of  a 
physician's  testimony  as  to  the  cause  of  a 
death,  as  not  being  upon  witness'  own  knowl- 
edge or  upon  a  hypothetical  statement  of  facta, 
will  not  be  considered  on  appeal,  where  other 
specific  objections  were  made  below. — State  v. 
Kammel  (S.  D.)  420. 

(D)  Record  and  Proceedlnsa  Not  In  Rec- 
ord. 

g  1091.  A  paper  purporting  to  be  a  bill  of  ex- 
ceptions, but  not  in  compliance  with  Code  Cr. 
Proc.  i  426,  held  not  entitled  to  recognition  as  a 
bill  of  exceptions,  though  no  objection  was  made 
either  in  the  trial  or  the  Supreme  CJourt. — State 
V.  McCallum  (S.  D.)  586. 

i  1103.  An  abstract  on  appeal  prepared  in 
disregard  of  Supreme  Court  rule  12  held  not  en- 
titled to  consideration.- State  v.  McCallum  (S. 
D.)  586. 

(O)   Review. 

§  1144.  Where  no  objection  to  certain  testi- 
mony or  exhibits  appeared  in  the  recor|},  the 
court,  on  appeal,  would  not  consider  an  objec- 
tion thereto.— State  v.  Duff  (Iowa)  829. 

S  1144.  It  is  presumed  that  the  verdict  of 
a  jury  rests  on  the  facts  established  by  the 
evidence.— Ruth  v.  State  (Wis.)  733. 

S  1150.  The  lower  court's  ruling  on  an  ap- 
plication by  the  state  for  a  change  of  venue 
will  not  be  disturbed,  except  for  an  abuse  of 
its  discretion.— State  v.  Winchester  (N.  D.) 
1111. 

I  1152.  The  trial  court's  discretion  in  the  ex- 
clusion of  veniremen  or  talesmen  from  a  jury  is 


For  eases  in  Dee.  Dig.  *  Amer.  Digs.  1M7  to  date  *  Indexes  see  same  toplo  *  (ecUon  ({}  NUMBER 

Digitized  by  VjOOQ  l€ 


1168 


122  NORTHWESTERN  REPORTER. 


not  subject  to  review  unless  a  fair  Jury  was  not 
obtained. — Pumphrey  t.  State  (Neb.)  19. 

I  1153.  The  refusal  of  the  court  in  its  discre- 
tion to  permit  a  witness  to  testify  in  narrative 
form  will  not  be  reviewed  except  for  an  abuse. 
— Pumphrey  v.  State  (Neb.)  19.      . 

$  1153.  On  cross-examination  of  a  witness, 
a  ruling  of  the  trial  court  refusing  to  strilce 
out  an  answer  to  a  question  which  was  not 
objected  to  will  not  be  reversed  except  for  abuse 
of  discretion.— Seele  v.  State  (Neb.)  886. 

i  1159.  Where  there  is  evidence  to  support 
a  conviction,  the  Supreme  Court  cannot  inter^ 
fere.— Pumphrey  v.  State  (Neb.)  19. 

f  1159.  A  verdict  on  conflicting  evidence  will 
not  be  reviewed.— Jones  v.  State  (Neb.)  852. 

{  1159.  That  a  witness  at  different  times 
had  made  conflicting  statements  is  a  matter 
for  the  jury,  and  cannot  be  reviewed  on  appeal. 
—Thompson  v.  State  (Neb.)  986.    . 

i  1159.  A  conviction  on  conflicting  evidence 
sufficient  to  sustain  the  verdict  will  not  be  dis- 
turbed.— Thompson  v.   State  (Neb.)  986. 

S  1166Vi.  Error  in  compelling  counsel  for  ac- 
cused to  make  an  opening  statement  held  with- 
out prejudice.— Pumphrey  v.  State  (Neb.)  19. 

I  1166^  A  conviction  will  not  be  set  aside 
for  alleged  error  in  overruling  challeages  for 
cause  where  none  of  the  persons  challenged  sat 
upon  the  jury.— Pumphrey  v.  State  (Nebo  19. 

{  1169.  Error  in  receiving  incompetent  evi- 
dence is  without  prejudice,  where  it  is  subse- 
quently stricken  out  and  the  jury  instructed  to 
disregard  it.— State  T.  Berman  (Minn.)  161. 

f  1169.  Error,  if  any,  on  a  trial  for  stabbing 
in  the  admission  of  certain  evidence,  held  with- 
out prejudice. — Stevens  v.  State  (Neb.)  58. 

f  1169.  In  a  trial  for  making  a  false  report 
of  a  bank  of  which  accused  was  cashier,  the 
admission  of  certain  evidence  held  not  preja- 
dicial.— Rath  v.  State  (Wis.)  733. 

J  1168.  In  a  criminal  trial,  the  failure  to 
offer  in  evidence  all  of  certain  account  books 
from  which  summary  statements  made  and 
testified  to  by  expert  accountants  were  taken 
held  not  prejudicial  to  accused.— Ruth  v.  State 
(Wis.)  733. 

I  1170.  Refusal  to  strike  out  certain  testi- 
mony in  a  criminal  case  heU  not  error. — People 
T.  Andre  (Mich.)  98. 

{  1170%.  Error  in  overruling  an  objection 
to  a  question  in  a  criminal  case  is  not  ground 
of  reversal  where  the  answer  is  favorable  to 
the  appellant,  and  no  way  prejudices  his  rights. 
—Seele  v.  State  (Neb.)  686. 

{  1171.  Where  accused's  counsel  did  not  nse 
all  of  the  tim&  given  him  for  argument,  he  was 
not  injured  by  &e  court's  action  in  limiting  the 
argument  to  a  certain  time. — People  v.  Van  Al- 
styne  (Mich.)  193. 

§  1172.  An  instruction  as  to  the  presump- 
tion arising  from  the  recent  possession  of  stol- 
en property  held  not  reversible  error.— State  v. 
Clark  (Iowa)  957. 

I  1172.  In  a  prosecution  of  a  saloon  keeper 
for  selling  intoxicating  liquors  to  a  minor,  it 
was  not  reversible  error  to  instruct  that  de- 
fendant was  responsible  for  the  acts  of  his  serv- 
ants, wheje  the  record  plainly  shows  that  he 
was  not  prejudiced  by  it.— Seele  v.  State  (Neb.) 
CSC. 

(H)  Determination     and      Olapoaltloa     of 
Oanae. 

{  1186.  A  charge  on  impeaching  testimony 
failing  to  limit  the  same  to  ireneral  reputation 
of  the  witness  held  not  prejudicial  error  under 
Code  Or.  Proc.  S  500.— State  v.  Madison  (S.  D.) 
647. 


xvn.  PUHisHMEirr  Ain>  vbevex- 

TION  OF  CHIME. 

Validity  of  indeterminate  sentence  law  as  vio- 
lation of  constitutional  provision  granting 
pardoning  iK>wer  to  governor,  see  Pardon,  i  2. 

S  1206.  The  indeterminate  sentence  statute 
(Code  Supp.  1907,  $§  5718-al8  to  5718-a21) 
violates  no  constitutional  right  of  the  accused, 
or  any  constitutional  guaranty  of  the  state. — 
State  V.  Duff  (Iowa)  829. 

g  1208.  The  Legislature  may  fix  the  punish- 
ment for  crime,  with  the  limitation  only  that  it 
be  not  cruel  or  excessive. — State  r.  Duff  (Iowa) 
829. 

S  1216.  Accused,  convicted  of  mnrder  in  the 
second  degree,  may  be  sentenced  for  life  witli* 
out  imposing  a  maximum  and  minimum  sen- 
tence.—People  V.  Blake  (Mich.)  113. 

CROSS-BILL 

See  Biuity,  I  195. 

CROSS-EXAMINATION. 

See  Witnesses,  {  267. 

CUMULATIVE  EVIDENCE 

Ground  for  new  trial,  see  New  Trial,  |  104 
Reception  at  trial,  see  Trial,  |  66. 

CUMULATIVE  REMEDIES. 

Quo  warranto  and  other  remedy,  see  Quo  War- 
ranto, f  3. 

To  contest  election  of  city  offlceia,  see  Munic- 
ipal Corporations,  f  136. 

CURTESY. 

See  Dower. 

Jurisdiction  of  county  court  to  determine  right 

of  curtesy,  see  Courto,  |  200%. 
Jurisdiction  of  county  court  to  determine  right 

of  curtesy  in  property  outside  of  state,  see 

Courts,  S  18. 

CUSTODY. 

Of  child,  see  Divorce,  {{  303,  300;   Infants,  H 

16,  19. 
Of  jury,  see  Trial,  H  307,  314. 
Of  property  levied  on,  see  Execution,  %  156. 

.     DAMAGES. 

Compensation  for  property  taken  for'  public 
use,  see  Ehninent  Domain,  g{  69-141. 

Expert  testimony  to  show,  see  ESvidence,  i  543%. 

Joinder  of  cause  of  action  for  death  with  cause 
for  damages  under  Survival  Act,  see  Action, 
If  40,  42. 

Damage*    for  particular  injurie$. 
See  Death,  U  79-101;    False  Imprisonment,  | 

35. 
Alienation,  of  husband's  affections,   see   Hus- 
band and  Wife,  i  334. 
Breach  by  buyer  of  contract  for  sale  of  goods, 

see  Sales,  §|  369,  371. 
Breach  by  seller  of  contract  for  sale  of  goods, 

see  Sales,  i  418. 
Breach  by  vendee  of  contract  for  sale  of  land, 

see  Vendor  and  Purchaser,  {  323. 
Breach  by  vendor  of  contract  for  sale  of  land, 

see  Vendor  and  Purchaser,  {{  343.  350. 
Breach   of  implied   contract  for   services,   see 

Work  and  Labor,  {  29. 
Breach  of  warranty,  see  Sales,  f  442. 
Injuries  from  sale  of  liquor,  see  Intoxicatinf 

Liquors,  {  313. 


Topic*,  divisions,  *  (ecUon  (i)  NUMBKRB  la  tills  Index,  *  Dec.  *  Am«r.  Digs.  *  Reporter  ladaxas 

Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1169 


LosR  of  or  injuiT  to  shipment,  see  Carriers,  I 
135. 

Negligent  transmission  of  telegram,  see  Tele- 
graphs and  Telephones,  H  07,  70. 

Recovery  in  partieiUar  aotioni  or  proceeding*. 
See  Forcible  Entry  and  Detainer,  {  30;    Mali- 
cious Prosecution,  {  68. 

X.   NATVBE  AKD   OBOTTKDS  IN  OEN- 
EBAI,. 

I  6.  Where  the  cause  of  damages  is  reason- 
ably certain,  recovery  thereof  will  not  be  denied 
merely  because  of  di£Sculty  in  ascertaining 
amount  of  damages. — Swift  &  Co.  r.  Redbeaa 
(Iowa)  140. 

XI.  NOMINAI.  DAMAGES. 

For  breach  of  contract  of  sale,  see  Sales,  §  418. 

m.  OBOUNDS  AJSCD  SUBJECTS   OF 
OOMPENSATOBT  DAMAGES. 

(A)  Direct  or  Remote,  Contlnarent,  or 
ProapeotlTe,  Conaeanenoes  or  Ijoaaea. 

From  wrongful  discharge  of  insurance  agent, 
see  Insurance,  %  85. 

i  23.  Measure  of  damages  for  breach  of  con- 
tract stated. — Malueg  v.  Hatten  Lumber  Co. 
(Wis.)   1057. 

8  34.  That  plaintiff  had  a  diseased  condition 
of  one  leg  would  not  bar  a  recovery  for  an  in- 
jury to  the  other  leg  or  other  parts  of  the  body 
caused  solely  by  and  resulting  from  the  acci- 
dent, though  he  was  more  susceptible  to  suffer- 
ing because  of  other  ailments  or  disease. — Kaw- 
lin^s  V.  Clyde  Plank  &  Macadamized  Road  Co. 
(Mich.)  .'MM. 

i  40.  Future  profits  may  be  recovered  in  an 
action  for  breach  of  contract,  where  the  parties 
must  have  reasonably  anticipated  such  result 
at  the  inception  of  the  contract,  if  there  is 
sufficient  evidence  to  furnish  a  legitimate  basis 
for  their  determination. — Richey  v.  Union  Cent. 
Life  Ins.   Co.  (Wis.)  1030. 

I  40.  Damages  recoverable  for  breach  of  con- 
tract must  be  reasonably  certain,  and  not  mere- 
ly speculative,  and  future  pecuniary  damages, 
such  as  loss  of  profits,  which  can  be  inferred 
with  reasonable  certainty  are  recoverable, 
though  they  may  be  somewhat  contingent.— 
Richey   v.    Union   Cent.   Life   Ins.    Co.    (Wis.) 

io;w. 

<B)  AKarrMTatlon,    Hittvatlon,  and   Redac- 
tion  of   IjOB*. 

{  62.  In  an  action  for  the  price  of  cattle  feed, 
defendant  could  not  counterclaim  for  damages 
caused  by  feeding  it  to  the  cattle  after  be  bad 
fully   learned  of  its  injurious  effect,  and  that 

Slaintiff    advised    defendant    to    keep    trying   it 
id  not  justify  defendant  in  continuing  to  use 
it.— Swift  &  Co.  ,.  Redhead  (Iowa)  140. 

TV.  UQTJIDATED  DAMAGES  AND 
PENAI.TIES. 

Power  of  legislature  to  provide  for  recovery 
of  liquidated  damages  for  failure  to  trans- 
port live  stock,  see  Carriers,  §  2. 

V.  EXEMPLABT  DAMAGES. 

For  particular  injuriet. 
See  False  Imprisonment,  §  35. 
Alienation  of  affections,  see  Husband  and  Wife, 

8  334. 
Injuries  from   sale  of  liquor,  see  Intoxicating 

Liquors,  g  313. 

$  92.  A  general  judgment  against  joint  de- 
fendants for  punitory  damages  is  proper,  though 


one    defendant    is    without    property    and    the, 
other  is  wealthy.— White  v.  White  (Wis.)  1031. 

in.  MEASTIBE  OF  DAMAGES. 

For  wrongful  death,  see  Death,  {  95. 

Vn.  INADEQUATE    AND    EXCESSIVE 
DAMAGES. 

Excessive  damages  in  action  for  malicious  pros- 
ecution, see  Malicious  Prosecution,  §  68. 

For  alienation  of  affections,  see  Husband  and 
Wife,  i  334. 

For  false  imprisonment,  see  False  Imprison- 
ment, f  36. 

In  action  on  disputed  claim  against  estate  of 
decedent,  see  Executors  and  Administrators, 
i  254. 

Review  of  amount  of  recovery,  see  Appeal  and 
Error,  {  1004. 

I  130.  A  verdict,  in  a  personal  injury  ac- 
tion, held  not  excessive. — Marshall  v.  Saginaw- 
Valley  Traction  Co.  (Mich.)  131. 

§  132.  A  verdict  In  a  personal  injury  action 
held  not  inadequate.— Hall  v.  Chicago.  B.  &  Q. 
Ky.  Co.  (Iowa)  884. 

§  132.  In  an  action  for  injuries  to  a  minor 
servant,  a  verdict  for  $2,947.60  held  not  ex- 
cessive.- Lund  v.  Sargent  Mfg.  Co.  (Mich.) 
372. 

i  132.  Verdict  of  $4,000  in  a  personal  in- 
jury case  held  not  excessive.— Wyman  v.  Pike 
(Minn.)  310. 

f  132.  Held,  that  a  verdict  of  $8,000  for  in- 
juries to  an  employe,  approved  by  the  trial 
court,  would  not  be  disturbed  as  excessive- 
Anderson  V.  Pittsburg  Coal  Co.  (Minn.)  704. 

{  132.  Verdict  of  $2,000  for  personal  in- 
juries held  not  excessive. — Xewbury  v.  Great 
Northern  Ry.  Ck).   (Minn.)   1117. 

II  132.  Held,  that  a  verdict  in  a  personal  in- 
jury action  for  even  a  larger  sum  than  $l,.'i00. 
which  was  awarded,  would  have  been  justified. 
-Armstrong  v.  City  of  Auburn  (Neb.)  43. 

Vm.  PLEADING.  EVIDENCE,   AND 
ASSESSMENT. 

(B)  Evidenoe. 

g  185.  Evidence,  as  to  plaintiff's  injuries  in 
an  action  for  personal  injuries,  held  to  sustain 
a  verdict  for  plaintiff  for  $5,0CI0.— Greenway  v. 
Taylor  County   (Iowa)  943. 

{  187.  It  should  not  be  assumed,  in  esti- 
mating damages  for  personal  injuries,  that 
plaintiff  will  engage  in  no  other  pursuit  than 
the  one  in  which  ne  was  engaged  at  the  time 
of  the  accident. — Greenway  v.  Taylor  County 
(Iowa)  943. 

(C)  Proeeedlnva  for  Asaeaament. 

i  216.  An  instruction,  in  a  personal  injur.v 
action,  on  the  subject  of  damages  held  not  er- 
roneous as  failing  to  permit  a  recovery  for  loss 
of  time  and  for  impairment  of  earning  capacitv 
and  for  temporary  injury.— Hall  ▼.  Chicago,  B. 
&  Q.  Ry.  Co.  (Iowa)  894. 

i  216.  An  instruction,  in  an  action  for  per- 
sonal injuries,  as  to  damages  for  impairment  of 
earning  capacity  held  not  erroneous  as  failing 
to  limit  the  damages  for  loss  of  earning  capac- 
ity to  the  present  worth  of  possible  future  earn- 
ings.— Greenway  v.  Taylor  County  (Iowa)  943. 

g  216.  An  instruction  as  to  damages  in  an 
action  for  personal  injuries  held  not  erroneous. 
—Greenway  v.  Taylor  County  (Iowa)  943. 

g  216.  An  instruction,  in  an  action  for  per- 
sonal injuries  limiting  the  consideration  of  loss 
of    future   earning    capacity    to   employment   in 


For  cases  In  Dec.  Dig.  ft  Amer.  Digs.  1907  to  date  ft  lodexea  see  aame  topic  ft  aection  (])  NUMBER 
122  N.W.— 74 


Digitized  by 


Google 


1170 


122  NORTHWESTERN  REPOBTEB. 


plaintilfB  oocnpation  preTioua  to  the  injutr, 
AeM '  erioneons.— O'Connor  r.  Chicago,  R.  L  & 
P.  Ry.  Co.  (Iowa)  947. 

I  216.  In  an  action  for  injuries  throngh  neg- 
ligence, an  instruction  held  to  fully  protect  de- 
fendant's rights.— Rawlinss  t.  Clyde  Planlc  9t 
Macadamized  Road  Co.  (Mich.)  504. 

§  21C.  In  a  personal  injury  action  against  a 
city,  a  charge  on  damages  held  proper  under  the 
evidence.— Knudaen  t.  City  of  Muuegon  (Mich.) 
519. 

DAMS. 

See  Waters  and  Water  Courses,  §S  164-179. 
In  navigable  streams  as   interfering  with  in- 
terstate commerce,  see  Commerce,  {{  18,  20. 


See  Time,  |  & 


DAYS. 


DEATH. 


Expert  testimony   as  to  cause  of  death,   see 

Cfriminal  Law,  U  476,  479. 
Of  party  to  action  ground  for  abatement,  see 

Abatement  and  ReTival,  i  68. 

I.  EVIDENCE  OF  DEATH  AKD  OF 
SURVIVORSHIP. 

§  2.  Proof  of  diligent  search  and  inquiry  is 
unnecessary  to  establish  the  presumption  of 
death  of  a  person  who  has  absented  himself 
from  his  home  or  place  of  residence  for  seven 
years.— Miller  r.  Sovereign  Camp  Woodmen  of 
the  World  (Wis.)  1128. 

II.  ACTIONS   FOR   OATISINO   DEATH. 

(A)  Rlitht  o<  AetloB  and  Defenae*. 

Joinder  of  cause  of  action  for  death  with  cause 
for  damngeg  under  SurviTkl  Act,  see  Action, 
S§  40,  42. 

§  24.  In  an  action  for  wrongful  death,  the 
contributory  negligence  of  the  plaintiff  bene- 
ficiary is  a  defense.— Scherer  t.  Schlaberg  (N. 
D.)  1000. 

i  24.  Plaintiff  suing  for  the  death  of  his 
child  held  guilty  of  contributorr  negligence  as 
a  matter  of  law.— Scherer  v.  Schlaberg  (N.  D.) 
1000. 

(D)  PleadlnK    and    Kvldenee. 
Amendment  of  declaration  in  action  for  injury 
so  as  to  authorize  recovery  for  death  as  con- 
stituting  the  bringing  in  of  a   new   and  dif- 
ferent cause  of  action,  see  Pleading,  §  248. 

{  76.  In  an  action  for  the  death  of  i>lain- 
tiff's  child,  held  that  anj[  verdict  for  plaintiff 
as  to  the  cause  of  the  child's  death  could  only 
have  been  based  upon  pure  speculation. — Scher- 
er T.  Schlaberg  (N.  D.)  1000. 

(E)  Damavea,  Porfeltnre,  or  Fine. 

Amendment  in  proceedings  tor  apportionment 
after  remand  by  appellate  court,  see  Appeal 
and  Error,  {  1201. 

Deduction  of  consideration  paid  for  covenant 
not  to  sue  executed  to  person  other  than  de- 
fendant, see  Release,  $  ai. 

{  70.  The  question  of  pecuniary  loss  to  a 
father  by  the  death  of  his  child,  dangerously 
ill  when  the  wrongful  act  complained  of  was 
committed,  held  a  question  of  conjecture  or 
speculation.— Scherer  v.  Schlaberg  (N.  D.)  1000. 

J  95.  Measure  of  damages  recoverable  by 
father  for  wrongful  death  oi  minor  child  stated. 
—Scherer  v.  Schlaberg  (S.  D.)  1000. 

§  101.  An  administrator  held  not  entitled, 
under  the  evidence,  to  recover  of  defendant  one- 
half  the  proceeds  of  a  clnim  for  intpstnte's  death 


prosecuted  by  defendant  as  attorney  under  an 
agreement  that  the  proceeds  should  belong  to 
intestate's  widow.— Hackett  ▼.  Mcllwain  (Bfiieh.) 

551. 

DE  BONIS  NGN. 

Adminlstratioii,  lee  Bzecatora  and  Administra- 
tors, I  87. 

DEBTOR  AND  CREDITOR. 

See  Assignments  for  Benefit  of  Creditors: 
Bankruptcy;  Creditors'  Suit;  Fraudulent 
Conveyancea. 

DECEDENTS. 

Estates,    see   Descent    and   Distribution;    Sz- 

ecutors  and  Administrators. 
Testimony    as    to    transactions    with    persons 

since  deceased,  see  Witnesses,  {  15Sl 


See  Fraud. 


DECEIT. 
DECLARATIONS. 


Aa  evidence  in  dvil  actions,  see  Evidence,  I  271. 
Of  agent  proof  of  agency,  see  Principal  and 
Agent,  I  22. 

DEDICATION. 

I.  NATURE  AND   REQUISITES. 

I  20l  A  dedication  of  a  way  to  the  public 
Jield  established. — Foulke  v.  Town  of  Agency 
City  (Iowa)  823. 

i  20.  Long-continued  use  of  a  way  with 
knowledge  of  the  owner,  held  to  tend  to  show 
dedication  "to  the  public— Foulke  t.  Town  of 
Agency  City  (Iowa)  823. 

DEDUCTIONS. 

From  general  verdicts  on  granting  new  trial 
as  to  one  of  several  items,  see  New  Trial. 
19- 

DEEDS. 

See  Easements,  SS  16,  36. 

Absolute  deed  as  mortgage,  see  Mortgages,  {{ 
36-38. 

Acknowledgment  of  execution,  see  Acluowledg- 
ment. 

Admissions  by  grantor,  see  Evidence,  H  234. 
235. 

Of  trust,  see  Mortgages. 

Parol  or  extrinsic  evidence,  see  ESridence,  ff 
897-466. 

Power  of  equity  to  give  complete  relief  by  can- 
cellation of  deed,  see  BIquity,  |  39. 

Tax  deeds,  see  Taxation,  |  765. 

To  standing  timl>er,  see  Logs  and  Logging. 

I.  REQUISITES  AND  VAIXDITT. 

(A)  Nature   and   Basentlala  o<   Conveyaa- 
oea  la  Cteneral. 

i  25.  While  the  oommon-law  quitclaim  was 
not  considered  a  conveyance  in  England,  in  the 
United  States  by  statute  and  comm<«  usage  it 
is  recognized  as  one  of  the  modes  of  real  es- 
tate conveyance  for  transferring  title.— Sherman 
V.  Sherman  (S.  D.)  439. 

(It)   Form    and    Oontenta    of    laatmmeat*. 

S  3H.  An  agreement  held  to  have  the  effect 
of  a  formal  quitclnim  deed  of  land. — Sherman  t. 
Sherman  (S.  D.)  430. 

<D)  OellTorr. 

§  56.  Facts  held  to  show  that  a  deed  had 
not  been  delivered.— McGuire  v.  Clark  (Neb.) 

675. 


Topics,  divisions,  *  section  ({)  NUMBERS  In  tbls  Index.  *  Dec  ft  Amar.  Digs,  ft  Raportar  Indexes  agrea 

Digitized  by  VjOOQ  l€ 


INDBX-DIGEST. 


1171 


t  59.  A  deed  recorded  by  the  crrantor  and  re- 
turned to  him  held  sufflciently  delivered.^ 
Collins  T.  Smith  (Iowa)  839. 

(H)  Taiiaitr> 

I  70.  Whether  a  person  holding  tax  deeds 
on  property,  in  misrepresenting  that  the  title 
of  the  owners  thereof  had  been  dirested  by  the 
tax  deeds,  did  so  in  good  faith  or  not,  held 
immaterial  upon  the  right  of  the  owners  to 
avoid  a  conveyance  made  in  reliance  upon  the 
representation.— Kathan  v.  Comstock  (Wis.) 
1044. 

m.  CONSTBUOnON  ANB  OPEBA- 

Tioir. 

(A)  Oeaeral  Rales  of  Oonstraetlon. 

I  9Z  Where  grantors  intended  to  transfer 
land  to  a  railroad  company  under  the  power 
conferred  on  it  to  parchase,  take,  hold,  etc., 
land  by  Comp.  Laws  1887,  S  2980,  the  deed  will 
be  construed  in  the  light  of  the  statute,  which 
became  a  part  of  the  contract. — Sherman  v. 
Sherman  (S.  D.)  439. 

(O  BstMes  and  Interests  Created. 

I  128.  The  rule  in  Shelley's  Case  is  a  rule 
of  property  in  Iowa,  still  applicable  in  the  con- 
struction of  conveyances  executed  prior  to  the 
repeal  of  the  rule  by  Acts  32d  Oen.  Assem.  p. 
157,  c.  159.— Westcott  v.   Meeker  (Iowa)  964. 

(D)  Bxeeptlons  and  ReserTatlons. 

f  141.  An  agreement  for  the  sale  of  land 
held  to  be  a  bargain  and  sale  of  the  fee-simple 
title,  in  view  of  Comp.  Laws  1887,  §5  2854, 
2980,  3002,  3238,  3254.— Sherman  t.  Sherman 
(S.  D.)  4.T9. 

IV.  PI.EASINO  AND  EVTDENOE. 

{  194.  It  is  presumed  that  a  deed  was  de- 
livered at  the  date  of  its  acknowledgment. — 
Miller  v.  Peter  (Mich.)  7S0. 

i  194.  Possession  of  deed  by  grantee  held 
prima  facie  evitlence  of  delivery. — Wilson  v. 
Wilson  (Neb.)  856. 

{  104.  It  will  not  be  presumed,  in  the  ab- 
sence of  any  evidence,  that  a  son  would  com- 
mit an  unlawful  act  by  abstracting  from  his 
father's  papers  a  deed  which  had  not  been 
delivered,  and  publish  the  same  as  the  genu- 
ine deed  of  his  father.— Wilson  ▼.  Wilson 
(Neb.)  856. 

i  208.  Evidence  held  to  sustain  a  finding  of 
delivery  of  a  deed  to  grantee.— Wilson  v.  Wil- 
son (Neb.)  856. 

{  211.  Evidence  held  insufficient  to  show 
fraud  on  the  part  of  the  grantee  in  a  deed, 
in  consideration  of  bis  agreement  to  support 
the  grantor  and  manage  her  affairs.— Watson  v. 
Clark  (Iowa)  913. 

I  211.  Evidence  held  to  warrant  a  finding 
that  the  gi'antor  in  a  deed  in  consideration  of 
support  had  sufficient  mental  capacity  to  ex- 
ecute the  same.— Watson  v.  Clark  (Iowa)  913. 

i  211.  In  an  action  to  rescind  a  deed  for 
frand,  evidence  Md  to  establish  prima  facie 
case  of  fraud.— Paulsmd  v.  Peterson  (Minn.) 
874, 

DE  FACTO  GUARDIAN. 

Of  insane  person,  see  Insane  Persons,  |  65. 

DEFAMATION. 

See  I/ibel  and  Slander. 

DEFAULT. 

Judgment  by,  see  Judgment,  {  162. 


DELAY. 

In  institution  of  proceedings  to  take  property  In 
exercijse  of  power  of  eminent  domain,  see 
Eminent  Domain,  f  168. 

In  issuance  of  certificate  of  sale  on  nonpay- 
ment of  assessments  for  public  improvements, 
see  Municipal  Corporations,  {  577. 

DELEGATION. 

Of  duty  by  charitable  institution,  sea  Charities, 
145. 

DELIVERY. 

Of  bill  of  exchange  or  promissory  note,  see 

Bills  and  Notes,  f  63. 
Of  deed,  see  Deeds,  U  56.  69. 
Of  gift,  see  Gifts^  |  Zl. 
Of  goods  l^  carrier,  see  Carriers,  f  84. 
Of  goods  sold,  see  Sales,  f  §  161-182. 

DEMAND. 

For  payment  of  bill  or  note,  see  Bills  and 
Notes,  1404. 

DE  MINIMIS  NON  CURAT  LEX. 

Reversal  where  amoont  in  dispute  is  small,  see 
Appeal  and  E2rror,  i  1171. 

DEMONSTRATIVE  EVIDENCE. 

In  criminal  prosecutions,  see  Criminal  Law,  § 
404. 

DEMURRER. 

In  pleading,  see  Equity,  f  219;    Pleading,  U 

1^218. 

DEPENDENT  CHILDREN. 

State  school  for,  appropriations  in  aid  of^  Bee 
States,  i  13a 

DEPOSITARIES. 

Amendment  as  to  parties  in  proceedings  to  com- 
pel county  treasurer  to  deposit  funds,  see  Par- 
ties, §  95. 

Bond  of  bank  for  payment  of  deposit  of  county 
funds  as  constituting  illegal  increase  of  lia- 
bility, see  Banks  and  Banking,  {  260. 

Validity  of  law  requiring  deposit  of  county 
funds  as  impairing  vested  rights  of  county 
treasurer,  see  Constitutional  I^w,  {  102. 

f  7.  A  county  treasurer  held  not  warranted 
in  refusing  to  deposit  county  funds  with  the 
county  depository  because  it  did  not  appear 
thnt  the  president  and  cashier  of  the  bank 
designated  had  authority  to  sign  the  securit.v 
bond. — Board  of  Sup'rs  of  Gratiot  County  v. 
Munson  (Mich.)  11 7. 

I  8.  "All  other  officers"  of  a  county  required 
by  Loc.  Acts  1907,  p.  362,  No.  461,  to  deposit 
county  funds  in  the  county  depositories,  held 
to  include  deputies  of  the  treasurer  and  per- 
sons appointed  under  Comp.  Laws  1897,  §  2537, 
to  perform  the  duties  of  the  treasurer. — ^Board 
of  Sup'rs  of  Gratiot  County  v.  Munson  (Mfcli.) 
117. 

S  8.  That  the  office  of  county  treasurer  is  a 
constitutional  one  does  not  prevent  the  Legisla- 
ture from  requiring  the  deposit  of  county  funds 
in  a  county  depository.— Board  of  Sup'rs  of 
Gratiot  County  v.  Munson  (Mich.)  117. 

{  14.  The  declaration,  in  an  action  on  the 
bond  of  the  state  depositary,  held  to  sufficient- 
ly allege  the  ftmds  to  have  been  deposited  dar- 
ing the  treasurer's  term  covered  by  the  agree- 
ment.—People   V.   Bankers'   Surety   Co.   (Mich.) 


For  cases  1)  Dec.  Dig.  *  Amer.  Digs.  1M7  to  data  *  Indexes  see  same  topic  *  section  (|)  N17MBBB 

Digitized  by  VjOOQ  l€ 


1172 


122  NORTHWESTERN  REPORTER. 


353;  Same  v.  Federal  Union  Surety  Co.,  Id.; 
Same  v.  United  States  Fidelity  &-  Guaranty 
Co.,  Id. 

i  14.  That  a  State  Treasurer  contracted 
with  a  bank  as  depositary,  of  which  he  was 
president,  does  not  affect  the  state's  cause  of 
Action  against  the  bank  and  its  sureties  to  re- 
cover the  deposits.— People  y.  Bankers'  Surety 
Co.  (Mich.)  363 ;  Same  v.  Federal  Union  Surety 
Co.,  Id.;  Same  t.  United  States  Fidelity  & 
(iuaranty  Co.,  Id. 

S  14.  Declaration  in  an  action  on  the  bond 
of  a  state  depositary  held  sufficient  to  entitle 
plaintiff  to  recover  the  entire  penalty  of  the 
bond.— People  v.  Title  Guaranty  &  Surety  Co. 
of  Scranton,  Pa.  (Mich.)  355. 

DEPOSITIONS. 

See  Witnesses. 

DEPOSITS. 

In  bank,  see  Banks  and  Banking,  SS  121-15o. 

DEPOSITS  IN  COURT. 

Deposit  for  temporary  alimony,  see  Divorce,  8 

210. 
Necessity  of  an  offer  to  confess  judgment  in 

order  to  relieve  against  suljsequently  accruing 

costs,  see  Costs,  f  42. 

DESCENT  AND  DISTRIBUTION. 

See  Dower;  Executors  and  Administrators; 
Homestead,  {  151;  Wills. 

Difference  in  rights  as  to  distribution  of  pro- 
ceeds of  recovery  for  wrongful  death  and  for 
damages  under  Revival  act  as  affecting  right 
to  join  causes  of  action,  see  Action,  $  42. 

n.   PERSONS  ENTITLED  AND  THEIR 
RESPECTIVE   SHARES. 
(A)  Heira  and  Next  of  Kin. 

i  33.  Under  St.  1808,  f  2270,  subd.  5,  if  one 
dies  leaving  property  by  will  to  a  child  without 
direction  for  its  distribution  in  case  of  the 
termination  of  the  estate  by  the  child's  death, 
upon  its  death  in  infancy  unmarried  and  in- 
testate, such  property  descends  to  the  other 
children  then  living  or  their  representatives. 
—In  re  Ross  (Wis.)  S09;  Bowker  v.  Shields, 
Id. 

in.   RIGHTS  AND  LIABILITIES  OF 
HEIRS  AND  DISTRIBUTEES. 

(A)  Nature   and    Eatabliriltment    of   Rivl>ta 
In  Oeneral. 

i  C8.  The  i)roperty  of  one  dying  intestate 
goes  by  operation  of  law  by  distribution  or  in- 
heritance to  certain  iwrsons  in  certain  shares, 
independent  of  the  wishes  or  actions  of  the 
persons  appointed  by  law  to  take  it,  and,  until 
the  death  of  the  ancestor,  the  heir  as  heir  or 
distributee  has  no  interest  in  the  estate.— Simon 
v.  Simon's  Estate  (Mich.)  544. 

(  70.  At  common  law  a  release  by  a  child  of 
an  interest  in  the  estate  of  his  parent  made  dur- 
ing the  lifetime  of  the  parent  was  inoperative, 
but  a  covenant  or  contract  was  valid. — Simon  v. 
Simon's  Estate  (Mich.)  544. 

(B)  AdTancementa. 

J!  100%.  Under  Comp.  Laws  1897,  S$  9060- 
0074,  an  heir  of  full  age  may  accept  from  his 
ancestor  presently  in  advancement  his  full  share 

of  the  estate,  and  the  probate  court  under  sec- 
tion 0157  may  give  effect  to  a  receipt  given  by 
such  heir. — Simon  v.  Simon's  Estate  (Mich.)  .">44. 


DESCRIPTION. 

Of   drain    in    petitim    for   establishment,    ae« 

Drains,  {  28. 
Of  property  conveyed,  see  Bonndaries,  |f  15,  18. 
Of  property  in  drainage  assessment,  see  Drains, 


f  78. 
Of  property  mortgaged,  see  Mortgages, 

i  143. 

DETINUE. 

See  Replevin. 

DEVISES. 

See  Wills. 

DICTA. 

See  Courts,  |  02. 

DILIGENCE 

Affecting  right  to  new  trial,  see  New  Trial,  i 

DIRECTING  VERDICT. 

In  civil  actions,  see  Trial,  H  168-178. 

DISABILITIES. 

Effect    on    limitation,    see    Limitation    of    Ac- 
tions, §  72. 
Of  insane  person,  see  Insane  Peisons,  {  2, 

DISCHARGE. 

Of  insurance  agent,  see  Insurance,  |  85. 

From  indehtedneit,  oWigation,  or  liaiilitp. 
See  Bankruptcy,  §  435;    Compromise  and  Set. 

tlement ;    Release. 
Liability  as  surety,  see  Principal  and  Surety, 

I  04. 
Liability  of  surety  on  appeal  bond,  see  Appeal 

and  Error,  |  1227. 

DISCLAIMER. 

Of  right  to  costs,  see  Costs,  i  47. 

DISCONTINUANCE. 

Of  action,  see  Dismissal  and  Nonsuit,  {{  32, 
43. 

DISCOVERY. 
I.  nr  EQUiTT. 

Requiring  corporation  to  allow  inspection  of 
books  as  constituting  unreasonable  search,  see 
Searches  and  Seizures,  |  7. 

XL  1TNDER  STATITTORT  PROVI- 
SIONS. 

(B)  Prodaetlon    and    Inapectlon    of   °Wrlt- 
inva  and  of  Other  Mattera. 

{  88.  In  an  action  by  the  equitable  owner  ot 
corporate  stock  for  the  app«intment  of  a  re- 
ceiver, plaintiff  held  entitled  to  have  an  inspec- 
tion of  the  corporate  books. — McGeary  t.  Brown 
(S.  D.)  60o. 

§  07.  Court  held  authorized  under  its  legal 
and  equitable  powers  and  independent  of  Code 
Civ.  Proc.  §  4<7,  to  grant  an  inspection  of  the 
books  of  defendant  corporation  by  plaintiff  to 
enable  her  to  prepare  for  trial  without  formal 
notice  or  application  for  such  inspection. — Mo 
Geary  t.  Brown  (S.  D.)  605. 

DISCRETION  OF  COURT. 

Admission  of  rebuttal  evidence,  see  Trial,  |  OS. 


Topics,  divisions,  &  section  ({)  NUMBERS  in  this  Index,  &  Dec.  * 


'.  Digs.  A  Reporter  Indexes  atrae 

Digitized  by  LjOOQ  l€ 


IMDfiX-DIGEST. 


lltS 


AUowiDg  jury  to  take  papers  to  jury  room,  see 

Trial,  {  307. 
Change  of  venue  in  criminal   prosecution,   see 

Criminal  Law,  i  121. 
Ekdusion  of  witnesses  during  trial,  see  Trial, 

!  41. 
Granting  or  refusing  preliminary  injunction,  see 

Injunction,  J  135. 
Granting  or  refusing  specific  performance,  see 

Specific  Performance,   §  8. 
Mandamus  to  control,  see  Mandamus,  f  28. 
Review  in  civil  actions,  see  Appeal  and  Error, 

8S  945-984. 

DISCRIMINATION. 

In  letting  municipal  contracts,  see  Munidpal 
Corporations,  S§  241,  1000. 

DISMISSAL 

Of  writ  of  certiorari,  see  Certiorari,  I  CO. 

DISMISSAL  AND  NONSUIT. 

Dismissal  of  appeal  or  writ  of  error,  see  Appeal 

and  Error,  §§  776-787. 
Judgment  on  dismissal   as  bar  to  other  relief, 
'  see  Judgment,  f  570. 
Review  of  decisions,  see  Appeal  and  Error,  g 

902. 

I.  VOLTTNTABT. 

i  32.  Under  Code  1897,  fi  3707.  3768,  held, 
that  a  defendant  in  action  for  divorce  could  at 
any  time  during  vacation  dismiss  her  counter- 
claim by  notice  to  the  clerk,  and  a  failure  of  the 
cleik  to  make  a  record  thereof  would  not  defeat 
the  dismissal. — Luse  r.  Luse  (Iowa)  970. 

i  43.  Where  defendant  in  action  for  divorce 
had  directed  the  clerk  of  court  to  enter  a  dis- 
missal of  her  counterclaim,  held,  that  a  subse- 
quent letter  to  him  recalling  her  notice  was  of 
no  effect. — Luse  v.  Luse  (Iowa)  970. 

H.  INVOLXTNTABT. 

I  60.  It  is  the  duty  of  trial  courts  to  dis- 
courage protraction  of  litigation  by  dismissing 
for  want  of  prosecution. — Smith  v.  Carter 
(Wis.)  1035. 

DISQUALIFICATION. 

Of  sheriff  to  summon  jury,  see  Jury,  f  70. 

DISSOLUTION. 

Of  corporation,  see  (Corporations,  f|  615-021. 

DISTRIBUTION. 

Of  estate  of  decedent,  see  Descent  and  Distribu- 
tion ;    Executors  and  Administrators,   f  315. 

DISTRICT  AND  PROSECUTING 
ATTORNEYS. 

Advice  of  as  defense  in  action  for  malicious 
prosecution ;   see  Malicious  Prosecution,  $  22. 

Reimbursement  of  expenses  incurred  by  county 
attorney,  see  Counties,  g!  138,  139. 


DITCHES. 


See  Drains. 


DIVERSE  CITIZENSHIP. 

Ground  of  jurisdiction  of  T'nited  States  ooorts, 
see  Bemoval  of  Causes,  g  43. 


DIVERSION. 

itable  in8tituti( 

DIVORCE. 


Of  funds  of  charitable  institution,  see  (Parities, 
g  48. 


IV.  JUBISDIOTION,   PBOCEEIUirGS, 
AMD  KEISET. 

(D)  BTldemee. 

g  124.  Clear  proof  of  misconduct  and  absence 
of  collusion  is  necessary  before  a  divorce  will 
be  granted  on  the  testimony  of  the  complainant 
on  bills  taken  as  confessed. — Case  v.  Case' 
(ilich.)  538. 

i  133.  A  finding  in  divorce  of  willful  deser- 
tion held,  not  80  clearly  against  the  preponder-. 
ance  of  evidence  as  to  warrant  setting  it  aside.. 
— Karnes  v.  Karnes  (Wis.)  717. 

(E!)  OlamlnnsI,  Trial  or  HearlnK>  aiid  New 
Trial. 

Effect  of  notice  to  clerk  of  court  to  dismiss  coun-, 
terclaim  and  motion  for  temporary  alimony, 
see  Dismissal  and  Nonsuit,  g  43. 

Voluntarj-  dismissal  of  counterclaim  and  motion 
for  temporary  alimony,  see  Dismissal  and  Non- 
suit, g  32. 

T.  ALIMONT,   AXXOWAMCE8,  AMD 
DISPOSITION  OF   PBOFEBTT. 

g  210.  Where  defendant  in  divorce  had  with- 
drawn her  counterclaim  and  motion  for  tempo- 
rary alimony,  plaintiff  could  withdraw  money 
deposited  for  payment  of  temporary  alimony, 
though  defendant  afterwards  filed  a  trial  no- 
tice.—Luse  V.  Luse  (Iowa)  970. 

S  210.  The  court,  in  an  action  for  divorce, 
can  include  in  the  final  decree  provisions  for 
temporary  support  of  the  wife  and  children  be- 
fore compliance  with  its  terms  as  to  permanent' 
alimony.— Delor  v.  Donovan  (Mich.)  196. 

g  222.  Attorney's  fees  to  a  wife  sued  for 
divorce  were  properly  refused  where  not  claim-' 
ed  until  after  she  had  withdrawn  her  answer, 
counterclaim,  and  motion  for  temporary  ali- 
mony.— Luse  v.  Luse  (Iowa)  970. 

VI.  OUSTODT  AMD   STTPFOBT  OF 
CHII.DBEM. 

g  303.  On  petition  by  the  husband  for  the 
modification  of  a  provision  of  a  divorce  decree, 
which  provided  for  a  monthly  allowance  for  the 
support  of  a  son,  custody  of  whom  was  given, 
to  the  wife,  charges  of  misconduct,  etc.,  which 
would  have  denied  the  wife  a  divorce,  and  pre- 
vented the  husband  from  being  given  custody  of 
a  daughter,  cannot  be  considered,  being  settled 
by  the  divorce  suit. — Camp  v.  Camp  (Mich.)  521. 

g  309.  Under  Comp.  Laws  1897,  g  8641, 
whether  the  provision  for  support  is  incorporat- 
ed in  a  divorce  decree  by  agreement  of  the  par- 
ties or  by  determination  of  the  court  is  imma- 
terial ;  the  court  having  jurisdiction  to  revise  it 
in  either  case.— Camp  v.  Camp  (Mich.)  521. 

g  309.  A  present  allowance  to  the  wife  of  $50 
a  month  for  the  supi>ort  of  an  infant  child  held 
unreasonable,  in  view  of  the  changed  conditions 
since  the  divorce  was  granted ;  and,  on  the  hus- 
band's application,  the  allowance  will  be  re- 
duced to  $30  a  month.— Camp  v.  Camp  (Mich.> 
521. 

DOCKETS. 

Mayor's  docket  as  documentary  evidence  in  civif 

action,  see  Evidence,  g  832. 
Of  causes  for  trial,  see  Trial. 


For  cases  In  Dec.  Dig.  ft  Amer.  Digs.  1907  to  date  ft  Indexes  see  same  topic  ft  section  ({) 

Digitized  by 


GtS^^gle 


1174 


122  NORTHWESTERN  REPORTER. 


DOCUMENTS. 

Aa  evidence,  in  civil  actiona,  see  Evidence,  |8 

332-350. 
I'roducUon  and  Inspection  of  wiitinc,  aee  Dis- 

coTei7,  if  88,  97. 

DOMICILE. 

I  1.  "Residence"  defined.-MUIer  t.  Sov 
eMxn   Camp   Woodmen  of  the   World   (Wis.) 

I  1.  The  general  rule  is  that  a  man  mnst 
have  a  habitation  somewhere,  and  that  he  can 
have  but  one,  and  that  in  order  to  lose  one  he 
-must  acquire  another. — Miller  v.  Sovereign 
Camp  Woodmen  of  the  World  (Wis.)  1126, 

S  4.  Intention  is  almost  invariably  a  con- 
trolling element  in  determining  residence. — 
Miller  v.  Sovereign  Camp  Woodmen  of  the 
World  (Wis.)  1126. 

S  8.  Where  a  son  resided  with  his  mother  till 
lie  reached  majority,  and  there  was  abundant 
evidence  that  thereafter  he  made  her  home  his 
headquarters,  returning  frequently,  and  there 
was  no  proof  that  he  acquired,  or  attempted  to 
MQttire  any  new  residence,  there  was  no  error 
in  assuming  that  be  resided  with  her.— Miller  v. 
Korereign  Camp  Woodmen  of  the  World  (Wis.) 
1126. 

DONATIONS. 

See  Gifts. 


DOWER. 

I.  HATVUE  ANB  BEQinSITES. 

t  14.  A  full  equitable  title  held  an  estate  of 
inheritance  within  the  dower  statute. — Harley 
V.  Uarley  (Wis.)  761. 

I  14.  In  ejectment  against  widow  of  execu- 
tqiT  vendee  defendant  h<ld  the  owner  of  a  dower 
right  in  such  land  as  is  not  within  the  home- 
stead.—Harley  V.  Harley  (Wis.)  761. 

f  20.  A  widow  heM  not  entitled  to  dower  in 
(and  conveyed  by  her  husband,  just  before  their 
marriage,  with  her  Itnowledge  and  consent. — 
Collins  V.  Smith  (Iowa)  839. 

HI.  BIOHT8  AND   REBOBDIES  OF 
WIDOW. 

J  56.  A  widow's  dower  in  land  will  entitle 
Iter  to  defend  her  possession  or  maintain  eject- 
ment to  obtain  such  dower.— Harley  v.  Harley 
iWia.)  761. 

f  56.  Where  a  widow  is  left  in  possession  of 
land  in  which  she  has  a  dower  ri^bt  she  may 
maintain  that  position  without  having  her  dow- 
er assigned.— Uarley  v.  Harley  (Wis.)  701. 

DRAINS. 

Drainage  of  surface   waters,  see  Waters  and 

Water  Courses.  |  119. 
In  cities,  see  Municipal  Corporations,  Sg  830- 

835. 

I.  ESTABUSHMENT   AND  MAIN- 
TENANCE. 

Acquisition  of  rights  under  power  of  eminent 
domain,  property  subject  to  condemnation,  see 
Eminent  Domain,  {  4r>. 

Judicial  power  to  determine  rij^ht  to  include 
property  within  drainage  district,  see  Consti- 
tutional Law,  §  70. 

Mandamus  to  compel  repair,  see  Mandamus,  { 
154. 

C  2.  Under  Conjp.  Laws  1897,  {  4334,  as  con- 
strued with  sertion  9,  the  construction  of  a 
nrrossnry  ctilvrrt  for  a  drain  throuRh  a  railroad 


fill  ia  a  part  of  the  necessary  expense  of  the 
construction  of  the  drain.— Pere  Marquette  R- 
Co.  V.  Weilnau  (Mich.)  303. 

i  26.  Where,  under  the  drainage  act,  the 
petition  is  in  due  form,  the  commissioners  have 
jurisdiction,  regardless  of  subsequent  irrejeu- 
larities. — Ranney  Refrigerator  Co.  v.  Smith 
(Mich.)  91. 

{  26.  In  drainage  proceedinga.  the  maUng 
of  the  apportionment  before  proof  filed  of  no- 
tice of  ue  time  and  place  appointed  by  the 
commissioners  for  apportionment  and  review- 
is  an  irregularity  not  fatal  to  the  proceedings 
where  proper  notice  was  actually  given. — Ran- 
ney Refrigerator  Co.  v.  Smith  (Mich.)  91. 

I  26.  On  a  petition  to  establish  a  drain,  a 
delay  in  making  the  fir!<t  order  of  determina- 
tion Jtfld  not  to  affect  the  jurisdiction  of  the 
groceedings. — Ranney  Refrigerator  Co.  r. 
mith  (Mich.)  91. 

8  26.    Under  Comp.  Laws  1897.  fS  4309.  4312. 

a  county  drain  commissioner  bad  authority  to 
invoke  the  aid  of  the  court  to  assist  him  in 
opening  a  culvert  for  a  drain  through  a  rail- 
ro-d's  fill.— Pere  Marquette  R.  Co.  v.  Wielnan 
(Mich.)  303. 

§  28.  A  petition  to  establish  a  drain  is  suffi- 
cient as  to  description  if  it  gives  a  general  de-' 
scription  of  the  beginning,  the  route,  and  the 
terminus  of  the  drain.— Ranney  Refrigerator 
Co.  T.  Smith  (Mich.)  91. 

i  40.  An  owner  of  land  abutting  on  a  drain, 
constructed  along  the  bed  of  a  stream,  held  en- 
titled to  restrain  the  construction  of  a  propos- 
ed drain  until  the  drain  had  been  cleaned  out 
—Harris  v.  Boutwell  (Mich.)  179. 

S  47.  Where  a  railroad  substituted  an  iroc 
pipe  for  an  open  culvert,  and  the  drain  was 
thereafter  established  at  that  point,  it  was  not 
bound  to  provide  an  opening  equivalent  to  that 
which  existed  before  the  construction  of  the 
drain.— Pere  Marquette  R.  Ca  v.  Weilnan 
(Mich.)  303. 

§  49.  Though  the  length  of  ditches  ordered 
to  be  constructed  is  in  excess  of  preliminaiy 
estimate,  held  the  drainage  district  is  liable  for 
work.- Monpghan  v.  Vanatta  (Iowa)  610. 

J  40.  A  drainage  district  held  liable  for  woik 
on  a  drain  in  excess  of  estimote  of  prelimi- 
nary report;  it  having  been  within  the  limits 
of  improvement  ordered. — Monaghan  v.  Vanatta 
(Iowa)  610. 

8  49.  Under  Code  Snpp.  1907.  $  1989a9.  held. 
the  eonnty  board  has  no  authority  to  pass 
on  estimates  of  work  done  on  a  ditch  prior 
to  final  report,  so  that  the  approval  thereof 
by  the  board's  chairman  did  not  affect  the  qnes- 
t.on  of  balance  due.— Monaghan  ▼.  Vanatta 
(Iowa)  610. 

i  49.  Where  dimensions  of  a  drain  as  or- 
dered by  a  county  board  are  enlarged  by  the 
engineer  without  pnrsning  the  course  prescribed 
by  Code  Snpp.  1907,  {  l^a7,  held  it  is  without 
authority,  and  the  drainage  district  not  liable 
for  the  excess. — Monaghan  v.  Vanatta  (Iowa) 
CIO. 

i  52.  Where  a  drain  has  once  been  legally 
made,  there  is  at  lenet  a  presumption  thnt,  if 
necessary  at  all,  it  should  be  kept  in  reasona- 
ble order.— Harris  v.  Boutwell  (Mich.)  179. 

t  52.  "Widen  or  deepen,"  as  used  in  Laws 
1905,  p.  327,  c.  230,  i  20,  is  not  included  in  th» 
terra  repairs,"  so  as  to  authorize  such  work 
without  notice  to  interested  property  owncrc 
—In  re  Renville  Co.  (Minn.)  1120;  State  v. 
McGuire,  Id. 

(  57.  Award  to  a  railroad  company  for  t^e 
construction  of  a  drain  through  its  fill  held  not 
to  include  an  award  for  the  construction  of  a 
culvert.— Pere  Marquette  R.  Co.  v.  Weilnau 
(Mich.)  303. 


Topics.  dlTlBlons,  &  Kctlon  (U  NUMBERS  ia  thto  ladss.  *  Dec.  ft  Amur.  Digs,  ft  Reportar  Isdezw  asTM 


Digitized  by  LjOOQ  l€ 


INDEX-DIGEST. 


1175 


i  62.  The  rights  of  pioprletora  abntting  od 
a  stream  held  not  affected  hy  the  conatructioa 
of  a  drain,  under  the  statute,  along  its  bed.^ 
Harris  r.  Boutwell  (Mich.)  179. 

n.  A88E88BCEirT8  AXS  SFEOXAIi 
TAXES. 

Law  providing  for  alteration  or  repair  of  drain 
and  assessment  of  costs  without  notice  to  ad- 
joining landowners  as  denial  of  due  process 
of  law,  see  Constitutional  Law,  {  290. 

I  74.  Property  owners  in  a  drainage  district 
held  not  estopped  to  question  ri^ht  of  contract- 
or; to  collect  for  work  on  drain  outside  that 
ordered.— Monaghan  v.  Vanatta  (Iowa)  610. 

I  74.  In  drainage  proceedings,  a  corporation 
held  to  have  no  right  to  object  after  final  order 
of  determination  that  its  relpase  of  the  right 
of  way  wa«  void.— Ranney  Refrigerator  Oo.  v. 
Smith  (Mich.)  91. 

i  76.  Under  the  drainage  act,  tbe  proceed- 
ings to  acquire  the  right  of  way  and  those  to 
apportion  benefits  are  separate  and  dintinct. — 
Ranney  Refrigerator  Co.  v.  Smith  (Mich.)  91. 

I  78.  Under  the  statute,  an  assessment  on 
a  railroad  right  of  wa^  for  the  construction  of 
a  drain  hrld  to  sufficiently  describe  the  prop- 
erty.—Chicago,  M.  &  St  P.  Ry.  Co.  T.  Mo- 
nona County  (Iowa)  820. 

(  81.  Certain  objections  to  the  conflrmatloD 
of  an  aRttessment  on  a  railroad  right  of  way 
for  benefits  for  the  construction  of  a  drain 
held  not  to  raise  the  question  of  the  invalidity 
of  the  assessment,  because  of  failure  to  assess 
the  right  of  wav  aa  an  entirety. — Chicago,  M. 
ft  St.  P.  Ry.  Co.  T.  Monona  County  (Iowa) 
820. 

S  81.  The  objections  to  the  confirmation  of 
an  assessment  for  the  construction  of  a  drain 
held  not  a  penernl  denial,  and  only  issues  fair- 
ly presented  by  the  objections  can  be  consider- 
ed.—Chicago,  M.  &  St.  P.  Ry.  Co.  T.  Monona 
Cbnuty  (Iowa)  820. 

S  82.  The  courts  held  authorized  to  review 
an  assessment  for  benefits  for  construction 
of  a  drain.— Chicago,  M.  &  St  P.  Uy.  Co.  t. 
Monona  Coi^nty  (Iowa)  820. 

{  82.  Where  no  final  order  or  Judgment  af- 
fecting appellant's  property  appears  iu  the 
record  of  a  drainage  proceeding,  the  appeal  will 
be  dismissed.— Union  Pac.  R.  Co.  v.  Colfax  Coun- 
ty (Neb.)  29. 

I  82.  On  appeal  from  an  assessment  in 
drainage  proceedings,  that  portion  of  the  ap- 
portionment purporting  to  charge  property  of 
appellant  must  appear  in  record. — Union  Pac. 
R.  Co.  ▼.  Colfax  County  (Neb.)  20. 

I  85.  The  spreading  of  a  drainage  tax  be- 
fore the  record  has  been  deposited  with  the 
county  clerk,  contrary  to  the  provisions  of 
Comp.  Laws  1807,  !  4814,  held  not  to  authorize 
a  recovery  of  the  tax  paid.— Ranney  Refrigerator 
Co.  T.  Smith  (Mich.)  91. 

I  85.'  Where  a  drainage  tax,  as  spread,  ia 
leas  than  the  law  permits  the  commissioner  to 
impose,  a  taxpayer  cannot  recover  such  tax 
paid  under  a  protest,  on  the  ground  that  the 
tax  ia  excessive. — Ranney  Refrigerator  Co.  t. 
Smitb  (Mich.)  91. 

DRAWBRIDGES. 

See  Bridges,  <  41. 

DRUaGISTS. 

.Vets  conatitnting  breach  of  contract  for  aale 
of  dng  business,  see  Contracta,  §  312. 

.\dmi8sibility  of  evidence  in  action  for  breach 
of  contract  for  sale  of  drug  business,  spe  Con- 
tracts, i  349. 


Instructions  in  action  tor  breach  of  contract 
for  sale  of  drug  business,  see  Contracts,  { 
853. 

DRUNKARDS. 

Intoxication  of  insured  aa  affecting  liability  on 

Folicy,  weight  and  aufficiency  of  evidence,  see 
naurance,  f  665. 
Intoxication  of  maker  of  note  as  affecting  va- 
lidity, see  Bills  and  Notes,  {  101. 

DUE  PROCESS  OF  LAW. 

See  ConsUtutional  Law,  §{  251-803. 

EASEMENTS. 

Public  easements,  see  Dedication;    Highways. 

X.  OKBATZOir,  EXISTEITOE,  ANI>  TEB- 
MIirATION. 

I  16.  Tb  entitle  a  grantor,  conveying  a  part 
of  bis  laud  by  warranty  deed,  to  claim  an  ease- 
ment therein,  he  must  sliow  that  the  servitude 
was  apparent,  continuous,  and  necessary. — Co- 
vell  V.  Bright  (Mich.)  101. 

I  36.  Evidence  held  not  to  charge  a  grantee 
with  notice  of  an  easement  on  the  land,  con- 
veyed in  favor  of  other  land  of  the  grantor.— 
Covell  T.  Bright  (Mich.)  101. 

EJECTMENT. 

X.  BIOHT  OF  ACTION  ANB  DE- 
FENSES. 

{  9.  An  action  to  recover  posscssiun  of  land 
being  analogous  to  ejectment,  plaintilT  cannot 
recover  on  the  weakness  of  defendant's  title, 
even  though  the  latter  be  a  mere  trespasser. — 
Coultbard  v.  Mcintosh  (Iowa)  233. 

(  17.  One  cannot  recover  in  ejectment  unless 
he  ia  entitled  to  possession  when  he  commences 
the  action.— Harley  v.  Harley  (Wis.)  70^. 

{  23.    Anawer  in  ejectment  held  to  state  a 

food   legal   defense.- Harley  t.   Uarley   (vVis.) 
61. 

I  28.  A  legal  defense  in  ejectment  is  not 
pleadable  aa  a  counterclaim.— Harley  v.  Harley 
(Wis.)  761. 

n.  JUBISDICTION,     PARTIES,     PRO- 
CESS, AND  INOIDENTAIi  PRO- 
CEEDINGS. 

i  47.  Widow  of  executory  vendee  held  en- 
titled to  affirmative  relief  when  made  defend- 
ant in  ejectment,  though  her  children  were  not 
made  parties.— Hariey  v.  Harley  (Wis.)  761. 

I  50.  In  ejectment  corrt  ket({,  authorized  to 
order  necessary  parties  defendant  brought  in. — 
Hariey  v.  Hariey  (Wi".)  761. 

m.  FIiEADINO  AND  EVIDENCE. 

I  86.  In  an  action  to  recover  land  granted 
plaintiff  as  part  of  an  abandoned  river  bed  pur- 
suant to  Acts  30th  Gen.  Assem.  1904.  p.  166, 
c.  185,  approved  April  11,  1904,  providing  for 
the  survey  and  sale  of  abandoned  river  beds 
within  the  Jurisdiction  of  the  state,  the  burden 
is  on  defendant,  who  claima  that  the  land  grant- 
ed was  not  within  the  Jurisdiction  of  the  state, 
to  show  that  fact— Coulthard  t.  Mcintosh  (Io- 
wa) 233. 

ELECTION. 

Between  connta  in  indictment,  see  Indictment 

and  Information,  i  182. 
Between  counts  In  pleading,   see   Pleading,   S 

369. 
Between    testamentary    provisions    and    other 

rights,  see  Wills,  §j!  782.  7S4. 


For  cases  in  Dec.  Dig.  &  Amer.  Digs.  U07  to  date  ft  ladezss  s«a  sam*  topic  *  section  (U  NUMOEH 

Digitized  by  VjOOQ  IC 


1176 


122  NORTHWESTERN  REPORTER. 


ELECTION  OF  REMEDIES. 

i  3.  The  attempt  of  a  landowner  to  defeat 
condemnation  proceedings  was  not  such  an  elec- 
tion of  remedies  as  would  prevent  him  from  lit- 
igating on  appeal  the  amount  of  damages. — 
Beckman  v.  Lincoln  &  N.  W.  R,  Co.  (Neb.)  894. 

I  12.  A.  contractor  for  a  street  improTement 
held  not  to  hare  elected  bis  remedy  so  as  to 
preclude  him  from  haviug  the  property  assessed 
sold  for  the  nonpayment  of  the  assessments. — 
Fisk  T.  City  of  Keokuk  (Iowa)  896. 

ELECTIONS. 

Bv  partieutar   bodiet  or  aufhoritie*. 
Manicipal  officers,  see  Municipal  Corporations, 
{  136. 

To  determine  particular  gucitioiu. 
Issuance  of  county  bonds,  see  Counties,  {  178. 
Issuance  of  municipal  bonds,  see  Municipal  Cor- 
porations, i  918. 
Local  option,  see  Intoxicating  Liquors,  {  33. 

n.   ORDEBINO  OB  CALLING  ELEC- 
TION, AND   NOTICE. 

Notice  of  election  to  dBterraine  question  of  is- 
suance of  county  bonds,  see  Counties,  {  178. 

Vr  NOMINATIONS   AND  FBIMABT 
ELECTIONS. 

Validity  of  law  forbidding  indorsement  or  ref- 
erence by  any  political  party,  convention,  or 
primary,  to  candidates  for  judicial  or  educa- 
tional office  as  violation  of  right  of  assembly, 
see  Constitutional  Law,  {  91. 

Validity  of  law  forbidding  indorsement  or  ref- 
erence by  any  political  party,  convention,  or 
primao',  to  candidates  for  judicial  or  educa- 
tional office,  as  violation  of  rights  to  free 
speech,  see  (institutional  Law,  {  90. 

f  120.  Sess.  Laws  1909,  p.  2.'>8.  c.  53,  S  3, 
providing  that  a  petition  nominating  cnndidates 
for  Chief  .Justice  or  judge  of  the  Supreme  Court 
shall  conrafai  5,000  signatures,  not  more  than 
500  of  which  shall  be  from  one  county,  AWd 
to  violate  Const.,  Bill  of  Rights,  art.  1,  t  22. 
providing  that  elections  shall  be  free.— State 
v.  Junkiu  (Neb.)  473. 

Vn.  BALLOTS. 

In  election  to  determine  question  of  Issuance 
of  county  bonds,  see  Counties,  f  17S. 

In  election  to  determine  question  of  issuance 
of  municipal  bonds,  see  Municipal  Corpora- 
tions, i  918. 

It  184.  To  permit  the  submission  of  a  double 
question  to  the  voters  would  admit  of  the  adop- 
tion of  a  weak  proposition  by  reason  of  its 
submission  in  connection  with  a  meritorious 
one.— Stem  v.  City  of  Fargo  (N.  D.)  403. 

{184.  A  voter  is  entitled  to  an  opportunity 
to  vote  for  or  against  any  question  submitted, 
independently  of  his .  vote  on  any  other  ques- 
tion.—Stern  V.  City  of  Fargo  (N.  D.)  403. 

X.   COlTTESTS. 

Contest  before  city  council  of  election  of  city 
officers,  see  Municipal  Corporations.  §  136. 

XL   VIOLATIONS  OF  ELECTION  LAWS. 

Quo  warranto  as  a  concurrent  remedy,  see  Quo 
Warranto,  §  3. 

ELECTRICITY. 

Construction  of  dam  for  purposes  of  aiding 
navigation  and  to  generate  electric  power  as 
exercise  of  power  of  eminent  domain,  see  Emi- 
nent Domain,  §  24. 


Release  of  liability  for  Injuries,  see  Release,  IS 
7,  37. 

I  14.  An  electric  company  owed  a  telephone 
employ^  the  duty  of  exercising  commensurate 
care  to  protect  him  from  its  wires. — ^Musolf  r. 
Duluth  Edison  Electric  Co.  (Minn.)  489. 

{  18.  A  telephone  workman,  killed  by  con- 
tact of  a  wire  with  these  of  an  electric  com- 
pany, was  not  bound  to  anticipate  its  negli- 
gence.—Mnsolf  v.  Duluth  E2dison  Electric  Co. 
(Minn.)  499. 

i  m.  In  an  action  for  the  death  of  a  tele- 
phone workman,  due  to  a  wire  coming  in  eon- 
tact  with  those  of  an  electric  company,  evidence 
of  its  negligence  lield  to  present  a  question  for 
the  jury.— Musolf  v.  Duluth  Edison  Electric  Co. 
(Minn.)  489. 

i  18.  Whether  the  failure  of  an  electric  com- 
pany to  properly  insulate  its  wires  was  the  prox- 
imate cause  of  the  death  of  a  telephone  work- 
man held  for  the  jury.— Musolf  v.  Duluth  Edi- 
son Electric  Co.  (Minn.)  499. 

!  19.  In  an  action  for  the  death  of  a  tele- 
phone workman,  due  to  the  contact  of  a  wire 
with  those  of  an  electric  company,  certain  evi- 
dence held  properly  admitted.— Musolf  v.  Du- 
luth Edison  Electric  Co.  (Minn.)  489. 

EMBEZZLEMENT. 

Misappropriation  of  funds   by  officer  of  trust 
company,  see  Banks  and  Banking,  S  314. 

i  36.  On  trial  of  an  officer  of  trust  company 
for  larceny  in  misappropriating  its  funds,  ud> 
der  Rev.  Laws  1905,  g  50T8,  snbd.  2,  the  state 
must  prove  guilty  intent.— State  t.  Barnes 
(Minn.)  4. 

{  44.  On  a  trial  for  embezzlement,  evidence 
Keld  to  sufficiently  establish  the  corpus  delicti 
justifying  a  conviction.— People  v.  Wilson 
(Mich.)  297. 

§  44.  On  trial  for  embezzlement,  evidence 
held  insufficient  to  sustain  conviction. — State  v. 
White  (Minn.)  448. 

g  48.  On  trial  of  an  officer  of  a  trust  com- 
pany, charged  with  larceny  under  Rev.  Laws 
1805,  I  5078,  subd.  2,  held  error  to  charge  the 
jurj',  in  determining  the  question  of  intent,  to  con- 
sider section  3045.— State  v.  Barnes  (Minn.)  4. 

EMINENT  DOMAIN. 

Public  improvements  by  municipalities,  see  Ma- 
nicipal  Corporations,   §g   269-678. 

X.  NATVBE.  EXTENT,   ANB  BELEOA- 
TION  OF  FOWEB. 

i  2.  That  a  railroad  company  is  required  by 
statute  to  construct  at  its  own  expense  the 
part  of  a  crossing  between  its  tracks  made  on 
extension  of  a  village  street  over  its  rixht  of 
way  does  not  entitle  it  to  compensation. — 
Chicago.  M.  &  St.  P.  Ry.  Co.  v.  Village  of 
Fair  Oaks  (W^is.)  810. 

{  10.  The  right  of  an  interurban  railway 
company  to  condemn  the  right  to  use  city  streets 
not  being  authorized  till  the  adoption  of  Laws 
1901.  p.  686,  c.  405  (St.  1808,  I  1863a),  heid 
that  its  right  to  condemn  the  use  of  city  streets 
on  which  it  had  laid  its  track  was  not  obtained 
till  subsequent  ordinances  were  passed,  grant- 
ing the  right  to  use  it  for  its  interurban  busi- 
ness.—In  re  Plow  right  (Wis.)  1043. 

S  24.  The  construction  of  a  dam  to  improve 
navigation  in  a  river  hetd  a  public  use,  though 
also  Intended  to  create  power,  to  be  sold  by 
the  holders  of  the  franchise.— In  re  Southern 
Wisconsin  Power  Co.  (Wis.)  801,  800;  Appeal 
of  Black  Hawk  Land  Co.  (Wis.)  801;  Appeal 
of  Whitnall  (Wis.)  809. 


Topics,  divisions,  *  section  ({)  NUMBERS  In  this  Index,  *  Dec.  *  Amer.  Digs.  *  Reporter  tndttw  acree 

Digitized  by  LjOOQ  l€ 


INDEX-DIGEST. 


1177 


I  45.  Laws  ld05,  p^  687,  c.  419,  as  amend- 
ed by  Laws  1907,  p.  1240,  c.  646,  did  not  au- 
thorize drainage  commissioners  to  appropriate 
a  pond  originally  created  by  a  dam.  but  which 
in  time  became  a  natural  condition,  and  was 
navigable  in  fact. — Shepard  Drainage  Dist.  t. 
Eimerman  (Wis.)  775. 

i  51.  Under  Rev.  Civ.  Code.  |  488,  subd.  4, 
a  railroad  held  authorized  to  condemn  land  out- 
side its  right  of  way  to  obtain  gravel  for  ballast- 
ing the  road.— Chicago,  M.  &  St.  P.  Ry.  Co.  v. 
Mason  (S.  D.)  601. 

S  58.  A  company  or  individual  empowered  to 
exercise  the  right  of  eminent  domain  may  not 
appropriate  more  land  than  is  necessary  for 
its  use,  and  the  courts  may  prohibit  excessive 
appropriation,  or  the  taking  of  land  not  within 
the  scope  of  the  purpose  required. — Chicago,  M. 
&  St.  P.  Ry.  Co.  V.  Mason  (S.  D.)  601. 

(  66.  Whether  a  use  for  which  property  is 
sought  to  be  condemned  is  public  or  privnte  is 
a  judicini  question. — In  re  Sontheru  Wisconsin 
Power  Co.  (Wis.)  801,  809;  Appeal  of  Black 
Hawk  Land  Co.  (Wis.)  801;  Appeal  of  Whit- 
nall  (Wis.)  809. 

{  67.  In  the  absence  of  some  constitutional 
or  statutory  provision  to  the  contrary,  the  ne- 
cessity of  exercising  the  right  of  eminent  do- 
main is  a  political,  and  not  judicial  question : 
the  legislative  determination  beini;  conclusive. 
—Chicago,  M.  &  St.  P.  Ky.  Co.  v.  Mason  (S.  D.) 
601. 

S  68.  While  the  courts  may  determine  wheth- 
er the  use  for  which  private  property  proposed 
to  be  taken  is  in  fact  a  public  use  or  not,  where 
a  corporation  exercises  the  right  in  good  faith 
and  without  oppression,  its  discretion  in  the 
selection  of  land  will  not  be  interfered  with  by 
the  courts.— Chicago,  M.  &  St.  P.  Ry.  Co.  y. 
Mason  (S.  D.)  601. 

{  68.  Under  the  laws  of  this  state  the  exist- 
ence of  the  necessity  for  exercising  the  right  of 
eminent  domain,  where  it  is  first  shown  that 
the  use  is  public,  is  not  open  to  judicial  investi- 
gation.—Chicago,  M.  &  St.  P.  Ry.  Co.  V.  Mason 
(S.  D.)  601. 

i  68.  Unless  prohibited  by  the  Constitution, 
the  Legislature  may  delegate  to  public  officers 
or  to  private  corporations  the  right  of  determin- 
ing the  necessity  of  exercising  the  power  of 
eminent  domain.— Chicago,  M.  &  St.  P.  Ry.  Co. 
T.  Mason  (8.  D.)  601. 

n.   COMPENSATION. 

(A)  Neceasltr  aad   Snfflclencr  In    General. 

i  69.  Land  cannot  be  taken  for  a  highway 
without  assessing  and  paying  the  damages  to 
the  owner  or  providing  therefor. — Johnson  ▼. 
Peterson  (Neb.)  683. 

(B)  TakInK      or      Inlnrinv      Property      aa 

Oroand  for  Compensation. 

i  110.  In  determining  whether  and  how  much 
the  part  of  a  farm  not  taken  for  a  railroad 
right  of  way  will  be  depreciated,  certain  ele- 
ments of  damage  held  proper. — Beckman  v.  Lin- 
coln &  N.  W.  B.  Co.  (Neb.)  994. 

i  111.  In  determining  whether  and  how  much 
the  part  of  a  farm  not  taken  for  a  railroad  right 
of  way  will  be  depreciated,  certain  elements  of 
damage  held  proper. — Beckman  v.  Lincoln  &  N. 
W.  R.  Co.  (Neb.)  994. 

(C)  Meaanre   and  Amount. 

S  131.  Measure  of  damages  in  condemnation 
proceedings  by  a  railroad  company  declared. — 
Minneapolis,  St.  P.,  R.  &  D.  Electric  Traction 
Co.  V.  Harkins  (Minn.)  450 ;  Same  v.  Forstrom 
(Minn.)  451. 

i  131.  Measure  of  damages  in  proceedings  by 
a  railroad  to  condemn  a  right  of  way   includes 


value  of  land  taken.— Beckman  v.  Lincoln  &  N. 
W.  R.  Co.  (Neb.)  994. 

{  134.  Impairment  of  the  value  of  land,  due 
to  peculiar  condition,  by  the  condemnation  of  a 
right  of  way,  under  Rev.  Laws  1905,  c.  41  (sec- 
tions 2520-2542),  held  to  have  a  direct  bearing 
on  the  damages. — Minneayolis,  St.  P.,  R.  &  D. 
Electric  Traction  Co.  v.  Friendshuh  (Minn.) 
451. 

f  134.  In  a  proceeding  by  a  traction  com- 
pany to  condemn  a  right  of  way,  certain  facts 
held  proper  elements  of  damage. — Minneapolis, 
St.  P.,  R,  &  D.  Electric  Traction  Co.  v.  Fnend- 
shuh  (Minn.)  451. 

§1  134,  140.  In  condemnation  proceedings  by 
a  railroad  to  acquire  land  for  a  gravel  pit,  rule 
as  to  measure  of  damages  stated. — Chicago,  M. 
&  St.  P.  Ry.  Co.  V.  Mason  (S.  D.)  601. 

§  141.  Measure  of  damans  in  proceedings  by 
a  railroad  to  condemn  a  right  of  way  includes 
diminution  in  value  of  land  not  taken.— Beck- 
man V.  Lincoln  &  N.  W.  R.  Co.  (Neb.)  994. 

{  141.  In  condemnation  proceedings,  the 
correct  inquiry  as  to  damages  was  whether  de- 
fendant's land  adjoining  the  strip  taken  were 
depreciated  in  market  value  by  the  taking. — 
Wolf  V.  Green  Bay,  O.,  M.  &  S.  W.  Ry.  Co. 
(Wis.)  743. 

m.  PROCEEDINGS  TO   TAKE  PROP- 

ERTT  AND  ASSESS  COM- 

PENSATION. 

Competency  of  expert  witnesses  on  question  of 
-  -  ^-  ■  ->43%. 

nstitutional  Law,  | 


damages,  see  E<vldence,  I  543%. 
Due  process  of  law,  see  Coi 

281. 

8  168.  Delaying  for  more  than  four  months 
after  right  to  institute  proceedings  to  condemn  , 
a  street  for  an  Interuroan  railway  accrued  Is 
sufficient  to  warrant  a  party  entitled  to  dam- 
ages in  proceeding  as  authorized  by  St.  1898,  ( 
1852,  when  the  company  delays  or  omits  to  pros- 
ecute the  same.— In  re  Plowright  (Wis.)  1043. 

{  202.  In  proceedings  by  a  railroad  to  con- 
demn land  for  a  gravel  pit,  evidence  of  the  val- 
ue of  the  gravel  and  sand  per  yard  in  connec- 
tion with  an  estimate  of  the  number  of  cubic 
yards  on  the  land  held  inadmissible  on  the  ques- 
tion of  damages.— Chicago,  M.  &  St.  P.  Ry.  Co. 
v.  Mason  (S.  D.)  601. 

{  222.  A  juTV  in  condemnation  proceedings, 
under  Const.  1850,  art.  18,  %  2,  held  a  special 
tribunal,  and  that  the  probate  judge  in  charge 
thereof  was  not  required  to  instmct  them.— 
McDuffee  v.  Fellows  (Mich.)  276. 

i  223.  Irregularity  in  condemnation  proceed- 
ings under  Pub.  Acts  1903,  p.  237,  No.  176, 
amending  Pub.  Acts  1895.  p.  56,  No.  3,  c.  13, 
held  waived  by  the  parties  interested. — Weber 
V.  City  of  Detroit  (Mich.)  570. 

g  224.  Contention  of  counsel  for  an  errone- 
ous rule  of  law,  before  a  jury  in  condemnation 
proceedings,  held  insufficient  to  vacate  the  jury's 
findings.— McDuffee  v.  Fellows  (Mich.)  276. 

8  238.  Where  owners  of  land  appealed  from 
that  portion  of  the  award  relating  to  damage 
only,  the  traction  company  having  also  been  re- 
quired to  maintain  a  cattle  chute,  held,  that  the 
sufficiency  of  the  chute  was  not  an  issue  in  the 
district  court,  and  that  evidence  that  it  was  in- 
adequate was  inadmissible  to  enhance  damages. 
—Minneapolis,  St.  P.,  R.  &  D.  Electric  Traction 
Co.  v.  St.  Martin  (Minn.)  452. 

8  262.  Giving  of  an  instruction  as  to  inter- 
eat  in  condemnation  proceedings  held  not  to  re- 
quire a  reversal. — Beckman  v.  Lincoln  &  N.  W. 
R.  Co.  (Neb.)  994. 

8  262.  In  condemnation  proceedings,  per- 
mitting certain   questions   as   to  damages   held 


For  case*  In  Dec.  Dig.  *  Amer.  Digs.  1907  to  Cate  *  Indexes  see  same  topic  ft  section  ({)  NUMBER 

Digitized  by  LjOOQ  l€ 


1178 


122  NORTHWESTERN  REPORTER. 


not  prejudWaL— Wolf  v.  Green  Bay,  O.,  If.  ft 
S.  W.  Ry.  Co.  (Wis.)  743. 

{  2(12.  In  condemnation  proceedings,  where 
no  question  of  want  of  jurUdiction  was  raised, 
an  objection  to  the  enti7  of  jadgment  because 
no  order  appeared  of  record  directing  the  clerk 
to  enter  judgment  held  not  aTailable  on  appeaL 
—Wolf  T.  Green  Bay,  O.,  M.  ft  8.  W.  Ry.  O. 
(Wis.)  743. 

i  263.  That  in  condemnation  pioceedinxs 
the  rights  of  a  mortgagee  in  the  land  talcen 
were  not  adjudicated  held  not  ground  for  dis- 
turbing the  judgment  on  appeal. — Wolf  t. 
Green  Bay,  O.,  M.  &  S.  W.  Ry.  Co.  (Wis.) 
743, 

§  264.  Certiorari  to  review  a  preliminary  de- 
termination in  a  condemnation  proceeding  dis- 
misxed.— >fichigan  C^nt.  R.  Co.  t.  .Miller 
(Mich.)  473. 

ZV.  KEMEDTES  OF  OWNERS  OF 
PKOPERTT. 

Election  of  remedies,  see  Election  of  Remedies, 
13. 

{  273.  Condemnation  proceedings  under  un- 
constitutional provision  of  law  may  be  enjoin- 
ed,—Wilber  V.  Reed  (Neb.)  53. 

I  275.  A  landowner  may  enjoin  a  road  over- 
seer from  entering  his  premises  to  prepare  a 
highway  thereon  until  the  damages  from  the  ap- 
proprintion  have  been  paid. — Johnson  v.  Peter- 
son (Neb.)  683. 

V.  TITI.E  OB  RIGHTS   AOQinCRED. 

i  323.  A  finding  that  a  mill  site  owner  had 
abnndoii'^d  his  ripht  to  flow  npper  riparinn  lands 
held  justified.— (Sross  v.  Jones  (Neb.)  681. 

I  S23.  Whether  there  has  been  a  nonuser  of 
a  ri.!:bt  of  flowage  acquired  by  condemnation 
proci^dings  for  such  a  time  as  to  amount  to 
abandonment  held  one  of  fact,  to  be  determined 
in  each  particular  case  upon  the  evidence  in- 
troduced.— Gross  v.   Jones   (Neb.)  681. 

§  S2S.  Petitioner  in  ad  quod  damnum,  pro. 
ceediugs  to  construct  a  dam  held  not  by  a  judg- 
ment in  his  favor  and  payment  of  damages  to 
ncquire  a  perpetual  right  to  flow  upper  riparian 
lands,  but  to  secure  merely  a  privilege  which 
might  be  lost  by  obandonment  or  nonuser. — 
Cross  T.  Jones  (Neb.)   681. 

EMPLOYES. 

See  Master  and  Servant, 

ENTICEMENT. 

Of  husband  or  wife,  see  Husband  and  Wife,  §§ 
330-334. 

ENTRY.  WRIT  OF. 

See  Ejectment. 

EQUITABLE  ESTOPPEL 

See  Estoppel,  ||  63-93. 

EQUITY. 

Kquitable  estoppel,  see  E.stoppel,  Sg  63-93. 
Equitable  set-o£E,  see  Set-Off  and  Counterclaim. 

I'articttlar  tubjedt  of  eguitahle  jurisdiction  and 
equitable  retnediet. 

See  Account;  Cancellation  of  Instruments; 
Creditors'  Suit;  Fraudulent  Conveyances;  In- 
junction ;  Partition,  i  113 ;  Quieting  Title ; 
Receivers ;    Specific  Performance ;    Trusts. 

Itelief  against  judgment,  sec  Judgment,  {  444. . 


Z.  JUBISDICTIOH,  FBINCIPI.E8,  AHD 

MAxncs. 

(A)  Nature,    Oronnds,    Snbjeets,    and    Ex- 

tent of  Jarladlotton  in  General. 

I  38.  An  undelivered  deed  signed  by  the 
donee  of  a  power,  who  was  ignorant  of  her 
rights  and  privileges,  held  to  be  canceled  in  an 
equitable  action  iuvolving  a  construction  of  ttiS 
will  creating  the  power  and  of  the  rights  of 
nil  devisees  and  legatees  named  therein. — 
tioosing  V.  Loosing  (Neb.)  707. 

(B)  Remedjr  at   liaw   and   HnltlpUeltr   •< 

Snlt*. 

{  43.  Equity  will  ordinarily  deny  relief 
where  complainant  has  an  adequate  remedy  nt 
Uw.— Bixler  v.  Fry  (Mich.)  119. 

I  47.  Title  to  real  estate  should  not  be  tried 
in  equity  where  the  remedy  of  ejectment  is 
open,  unless  the  case  is  within  some  head  of 
equi^  jurisdiction. — Moody  v.  Macomber  (Mich.) 
517. 

S  48.  A  landlord  held  to  have  an  adequate 
remedy  at  law  against  his  tenant  for  waste,  non- 
payment of  rent,  etc.,  and  therefore  not  to  be 
entitled  to  maintain  a  bill  in  equity. — Gaalt  v. 
Gault  (Mich.)  639. 

n.  ZJICHES    AITD    STAZ.E    DEMAHDS. 

Laches  in  action  by  or  against  personal  rep- 
resentative, see  Executors  and  Administra- 
tors, i  437. 

IJaches  in  proceedings  for  redemption  front 
mortgage,  see  Mortgages,  g  597. 

ZV.  PI.EAOIKO. 

(O  Croaa-Blll      and      Plea      and      Answer 
Thereto. 

{  196.  A  certain  cross-bill  held  not  germant- 
to  the  original  bill.— Higgins  t.  Vandeveer 
(Neb.)  843. 

I  195.  Held,  that  a  cross-suit  mast  be  ger- 
mane to  the  original  bill. — Higgina  v.  Vande- 
veer (Neb.)  813. 

(B)  Oemnrrer,    Bxeeptlons,    and    Motions. 

{  219.  In  so  far  as  a  demurrer  to  bill  at- 
tempts to  raise  collateral  questions,  it  la  not 
good  pleading. — Steele  v.  Culver  (Mich.)  95. 

X.  DECREE  AND  ENFOBOEBIENT 
THEREOF. 

Laches  in  action,  to  enforce  mechanic's  lien,  see 
Mechanics'  Liena,  f  291. 

XZ.  BZZX   OF   REVIEW. 

Review  of  discretionary  rulings  on  questions  of 
right  to  file,  see  Appeal  and  Error,  i  983. 

i  442.  Denial  of  an  application  to  file  a  bill 
of  review  as  a  substitute  n>r  an  appeal  held  not 
an  abuse  of  discretion. — Roberge  v.  De  Lisle 
(Mich.)  362. 

i  447.  Alle<^  newly  discovered  evidence, 
which  by  the  exercise  of  reasonable  car»  might 
have  been  discovered  in  time,  held  not  jcround 
for  bill  of  review.— Roberge  v.  De  T>iale  (Mich.) 
362. 

ERROR,  WRIT  OF. 

See  Appeal  and  Error. 

ESCAPE. 

S  7.  A  prisoner,  aided  to  escape  from  jail 
by  an  outside  person,  is  not  an  accomplice  of 
such  person.— State  v.  Duff  (Iowa)  829. 

{  10.  In  a  trial  for  assisting  a  prisoner  to 
escape  from  jail,  certain  evidence  held-  compe- 
tent in  rebuttal.— State  v.  nnff  (lowni  82U. 


Topics,  dlvtslons,  A  (ectlon  (i)  NUUBERS  in  this  Index,  *  Dec.  *  Amer.  DJxs.  *  Reporter  Inoexw 

Digitized  by  VjOOQ  l€ 


XNDBX-DIGEST. 


1179 


ESTABLISHMENT. 

Of  fraandaries,  lee  Bonndariei,  |  88, 

Of  bridge*.  8M  Bridges,  I  5. 

Of  drains,  see  Drains,  ft  2-62. 

Of  hiehwRTS,  see  HighwaTS,  H  30-fiO. 

Of  munlrinal  boundaries,  see  Municipal  Corpo- 
rations. I  25. 

Of  railroads,  see  Railroads,  |  05. 

Of  teleftraphs  or  telephones,  see  Telegraphs  and 
Telephones,  {  10. 

Of  will,  see  Wills,  H  219^32. 

ESTATES. 

Created  by  deed,  see  Deeds,  {128. 
Created  by  will,  see  Wills,  i§  600-622. 
Decedents    estntes,   see  Descent   and   Distribu- 
tion;  £lxectit0T8  and  Administrators. 

ParUoular  «$tatea. 
See  Dower;   Life  Kstates;    Remainders. 
Estates  for  years,  see  Landlord  and  Tenant. 
Tenancy  In  common,  see  Tenancy  in  Common. 

ESTOPPEL 

By  Judgment,  see  Judgment,  {f  664-590,  658- 
74a 

m.  EQTTITABIiE  ESTOFPEIi. 

Of  parUetUar  dassei  of  pertona,  or  perton$  in 
particular  relationa. 
Bank  depositor,  see  Banks  and  Banking,  |  121. 
Co-tenants,  see  Tenancy  in  Common,  |  34. 
Foreign  corporation,  see  Corporations,  §  650. 
Tenant  to  dispute  title  of  landlord,  see  Landlord 
and  Tenant,  |  61. 

To  a»$ert  or  deny  particular  facts,  rights,  claims, 
or  liatUities, 

Authority  of  bank  officer,  see  Banks  and  Bank- 
ing, {  lia 

Corporate  power,  see  Corporations,  §  388. 

Drainage  assessments,  see  Drains,  |  74. 

Existence  of  joint-stock  company,  see  Joint- 
Stock  Companies,  |  6. 

Forfeiture  of  insurance  polipy,  see  Insurance, 
H  37(i-305. 

Notice  and  proof  of  loss  under  insurance  policy, 
see  Insurance,  §S  555-558. 

Payment  of  mortgage  debt,  see  Mortgages,  { 
2i)8. 

Title  ot  landlord,  see  Landlord  and  Tenant,  I 
61. 

(B)  ISronnds  of  Estoppel. 

§  68.  Where  a  clerical  error  in  a  contract  is 
recognized  by  the  parties  thereto  in  an  action 
at  law  thereon,  the  question  of  error  in  the 
contract  was  foreclosed  in  a  subsequent  suit 
for  specific  performance. — Gates  t.  Detroit  & 
M.  Ry.  Co.  (Mich.)   1078. 

I  70.  Certain  land  held  to  pass  to  the  pur- 
chaser of  a  railroad.— Detroit  United  Ry,  t. 
Lan  (Mich.)  130. 

I  93.  Failure  of  contingent  remaindermen  to 
<>taim  any  interest  in  the  pro^rty  in  controver- 
sy prior  to  the  vesting  of  their  remainders  hcU 
insufficient  to  estop  them  to  subsequently  recov- 
or  the  land.— Westcott  v.  Meeker  (Iowa)  064. 

(O)  PeraoBB  Afleeted. 

Character  of  bank  deposit,  see  Banks  and  Bank- 
ing, i  121. 

EVIDENCE. 

See  Discovery ;   Witnesses. 

Admissibility  of  evidence  nnder  pleading,   see 

Pleading,  I  387. 
.Applicability   of    instructions   to   evidence,    see 

Trial,  Si  250-252. 
Newly   discovered   evidence  ground   for  bill  of 

review,  see  Kquit.v.  $  447. 


Questions  of  fact  for  jury,  see  Trial,  {§  139- 

145. 
Reception  at  trial,  see  Criminal  Law,  H  662- 

687 ;  Trial,  U  41-133. 
Verdict  or  findings  contrary  to  evidence,  tee 

New  Trial,  {  68. 

As  to  particular  facts  or  issues. 
See  Alteration  of  Instruments,  {27;    Bounda- 
ries, 8  35:    Damages,  |  185;    Death;    Deeds, 


1}  194-21  i;  Domicile,  S  8:  Easements,  I  36; 
Fraudulent  Conveyances,  {11  282,  301;  Judg- 
ment, I  956 ;  Payment,  {{  73.  74 ;   Sales,  |  62. 


Acceptance  of  goods  sold,  see  Sales,  J  181 

Agency,  see  Principal  and  Agent,  {{  19,  22. 

Bona  fides  of  holder  of  certified  check,  see 
Banks  and  Banking,  |  156. 

Character  of  transaction  as  deed  or  mortgage, 
see  Mortgages.  §§  36-38. 

Claims  against  decedent's  estate,  see  Executors 
and  Administrators,  I  221. 

CJonstructlon  of  chattel  mortgage,  see  Chattel 
Mortgages,  {  106. 

Construction  of  contract,  see  Contracts.  {  173. 

Contributory  negligence  of  servant  injured,  see 
Master  and  Servant,  {  274. 

Damages  caused  by  taking  or  injnrinfr  proper- 
ty for  public  use,  see  Imminent  Domain,  |  202. 

Defense  of  statute  of  limitations,  see  Limita- 
tion of  Actions,  {  195. 

Genuineness  of  signature  to  acknowledgment  of 
service  of  process,  see  Process.  {  145. 

Incompetency  or  negligence  of  fellow  servant, 
see  Master  and  Servant,  {  279. 

Insanity,  see  Insane  Persons,  {  2. 

Mental  capacity  to  execute  deed,  see  Deeds,  { 
211. 

Neglieence  of  master,  see  Master  and  Servant. 
{  278. 

Ownership  end  oneration  of  railroad,  see  Rail- 
roads, {{  271,  272 

Performance  of  contract,  see  Contracts,  {  .'?'?2. 

Rescission  of  contract  of  sale,  see  Sales,  {  128. 

Undue  Inflrence  procuring  making  of  will,  see 
Wills.  {{  164-166. 

Validity  of  school  district  order,  see  Schools 
and  School  DistricU,  (  62. 

In  actions  by  or  against  particular  classes  of 
persons. 

See  Brokers,  {  86;  Carriers,  {(  133,  316,  318; 
Executors  and  Administrators,  {  450;  Mas- 
ter and  Servant,  {{  285-279;  Physicians  and 
Suiveons,  {  18;  Principal  and  Agent,  f  79; 
Railroads,  i  308;    Street  Railroads,  i  114. 

Assignee  for  benefit  of  creditors,  see  Assign- 
ments for  Benefit  of  Creditors,  (  278. 

Contractors  and  sureties  against  municipality, 
see  Municipal  Corporations,  {  374. 

Corporate  ofUcers,  see  Corporations,  {  361. 

Payee  of  certified  check,  see  Banks  and  Bank- 
ing, {  15& 

Sureties,  see  Principal  and  Surety,  |  161. 

Trustee  in  bankruptcy,  see  Bankruptcy,  {  303. 

In  particular  civU  actions  or  proceedings. 

See  Ejectment,  {  86;  False  Imprisonment,  I 
23;  Fraud,  {{  52-.'>4;  Libel  and  Slander,  {{ 
109-118 ;  Malicious  Prosecution.  |  64 :  Man- 
damns,  t  168;  Negligence,  {  134;  Replevin, 
{  72;  Specific  Performance,  {  121;  Work 
and  Labor,  {  27. 

For  alienation  of  wife's  affections,  see  Husband 
and  Wife,  |  333. 

For  breach  of  contract,  see  C!ontracts,  {{  34i), 
350. 

For  breach  of  contract  for  sale  of  land,  see  Ven- 
dor and  Purchaser,  {  350. 

For  breach  of  warranty,  see  Sales,  |  441. 

For  causing  death,  see  Death,  |  76. 

For  compensation  of  broker,  see  Brokers,  {  8(>. 

For  compensation  of  servant,  see  Master  and 
Servant,  {  80. 

Foreclosure,  see  Mortgages,  $|  460,  4(S3. 

For  injuries  from  defects  or  obstructions  in 
higiiway.  see  Highways,  {  211. 


For  eaaes  In  Dec.  Dig.  &  Am«r.  Digs.  1907  to  data  *  Indexes  see  same  topio  *  section  ({)  NUHBBR 

Digitized  by  LjOOQ  l€ 


1180 


122  NORTHWESTERN  REPORTER. 


For  injuries  from  defects  or  obstractions  in 
street,  see  Municipal  Corporations,  |  81& 

For  injuries  from  negligent  use  of  street,  see 
Municipal  Corporations,  f  706. 

For  injuries  from  operation  of  street  railroad, 
Bee  Street  Railroads,  §  114. 

For  injuries  from  sale  of  liquor,  see  Intoxica- 
ting Liquors,  |  310. 

For  injuries  to  passenger,  see  Carriers,  |§  316, 
318. 

For  injuries  to  persons  on  or  near  tracks,  see 
Railroads,  i  398. 

For  injuries  to  servant,  see  Master  and  Serv- 
ant, !§  265-279. 

For  Joss  of  or  injury  to  shipment,  see  Carriers, 
§  133. 

For  negligence  or  malpractice  of  physician  or 
surgeon,  see  Physicians  and  Surgeons,  i  18. 

For  recovery  of  price  paid  for  goods,  see  Sales, 
{397. 

For  wrongful  acts  of  agent,  see  Principal  and 
Agent,  i  79. 

For  wrongful  attachment,  see  Attachment,  { 
374. 

On  benefit  certificate,  see  Insurance.  I  819. 

On  bill  or  note,  see  Bills  and  Notes,  g  516. 

On  certified  checks,  see  Banks  and  Banking,  g 
155. 

On  insurance  policy,  see  Insurance.  H  646-668. 

Probate  proceedings,  see  Wills,  %  219. 

To  set  aside  written  instrument,  see  Cancella- 
tion of  Instruments,  §§  45,  56. 

In  criminal  protecutloni. 

See  Assault  and  Battery,  |  85;  Criminal  Law, 
i  369;  Embezzlement,  |  44;  Escape,  {  10; 
False  Pretenses,  {  43 ;  Homicide,  §  109 ;  Lar- 
ceny, i  64;    Rape,  §g  51,  54. 

For  misappropriation  by  officer  of  trust  com- 

'   pany,  see  Banks  and  Banking,  {  314. 

For  violation  of  liquor  laws,  sei  Intoxicating 
Liquors,  gi  226-m 

Review  and  procedure  thereon  in  appellate 
courtt. 

Assignment  of  errors  to  rulings,  see  Appeal  and 
Error,  §  728. 

Harmless  error  in  rulings,  see  .Appeal  and  Er- 
ror, a  1047-105a 

Presumptions  on  appeal  as  to  ruling,  see  Ap- 
peal and  Error,  §  026. 

Review  of  sufficiency  of  evidence,  see  Appeal 
and  Error,  H  987-1012. 

I.  JUSICIAI.  HOnOE. 

i  1.  Judicial  notice  does  not  depend  on  the 
actual  knowledge  of  the  judges.— Haaren  v. 
Mould  (Iowa)  921;    Stevenson  v.  Same,  Id. 

{  41.  The  Supreme  Court  will  take  judicial 
notice  of  the  date  at  which  terms  of  court  are 
appointed  in  a  certain  county. — Meadows  t. 
Osterkamp  (S.  D.)  419. 

$  43.  In  a  proceeding  for  the  violation  of  a 
liquor  injunction,  the  court  will  take  judicial 
notice  of  the  injunction  decree.— Haaren  v. 
Mould  (Iowa)  921;    Stevenson  v.  Same,  Id. 

{  43.  A  court  may  take  judicial  notice  of 
prior  orders  and  proceedings  in  the  same  case 
or  in  a  collateral  action.— Haaren  t.  Mould 
(Iowa)  921;    Stevenson  t.  Same,  Id. 

§  43.  A  trial  court  cannot  take  judicial  no- 
tice of  its  records,  judgments,  and  orders  in  an- 
other and  different  proceeding.— Haaren  t. 
Mould  (Iowa)  921;    Stevenson  v.  Same,  Id. 

n.  PBESUMPnONS. 

Ai  to  particular  facit  or  ittuet. 
See  Alteration  of  Instruments,  g  27 ;    Death,  | 

2;    Domicile,  §  8. 
Agency,  see  Principal  and  Agent,  {  19. 
Pelivery  of  deed,  see  Deeds.  8  194. 
(ienuineness  of  signature  to  acknowledgment  of 

service  of  process,  see  Prot'oss,  8   145. 


Jurisdiction,  See  CJoarts,  {  35. 

Validity   of  School   district   order,   see   Schools 

and  School  Districts,  g  62. 
Validity  of  statutes,  see  Constitutional  Law,  i 

/•  particular  civil  aetiont  or  proceeding*. 
By  or  against  personal  representative,  see  E^x- 

ecutors  and  Administrators,  g  450. 
For  injuries  to  servant,  see  Master  and  Sery- 

ant,  g  265. 

g  62.  It  cannot  be  presumed  because  an  adult 
was  a  native  of  a  foreign  country,  who  had  re- 
centljr  come  to  this  country  and  could  not  speak 
English,  that  he  does  not  possess  ordinary  intel- 
ligence.—Fosnes  V.  Duluth  St.  Ry.  Co.  (Wis.) 

g  63.  All  persons  are  presumed  to  be  sane, 
and  in  every  proceeding  the  burden  of  proving 
insanity  rests  upon  the  one  alleging  it;  the 
question  being  one  to  be  tried  out  in  the  pro- 
ceeding then  pending  where  it  is  raised. — In  re 
Phillips  (Mich.)  554. 

g  82.  Where  return  of  execution  and  sum- 
mons in  garnishment  were  dated  the  same  day, 
it  will  be  presumed  that  the  summons  in  gar- 
nishment was  sued  out  after  the  retum.— 
Brunke  v.  Gruben  (Neb.)  37. 

g  83.  A  village  having  the  right  under  the 
statute  to  improve  and  widen  a  street,  it  must 
be  presumed  that  in  widening  such  street  it 
actMl  lawfully,  in  the  absence  of  a  showing 
to  the  contrary.— Berkedahl  v.  Village  of  West- 
by  (Wis.)  727. 

I  83.  The  presumption  is  that  public  officers 
will  not  wantonly  and  criminally  violate  the 
laws.— State  v.  Dahl  (Wis.)  748. 

g  83.  Courts  must  indulge  in  every  prima 
facie  presumption  in  favor  of  the  good  faitb 
of  an  executive  officer  in  the  discharge  of  his 
duties  as  such.— State  v.  Rose  (Wis.)  'raL 

in.  BUBOEH  OF  FBOOF. 

i4«  to  particular  fact*  or  i**ue*. 
Bona    fides    of   bolder   of  certified   check,    see 

Bnnks  and  Banking,  g  155. 
Character  of  transaction  as  deed  or  mortgage, 

see  Mortgages,  g  36. 
Construction  of  chattel  mortgage,   see   Chattel 

Mortgages,  g  106. 

/»  particular  dvil  action*  or  proceeding*. 

See  Ejectment,  g  86. 

Foreclosure,  see  Mortgages,  |  460. 

For  injuries  to  passenger,  see  Carriers,  |  S16. 

For  injuries  to  servant,  see  Master  and  Serv- 
ant,  g  265. 

For  wrongful  acts  of  agent,  see  Principal  and 
Agent,  f  79. 

On  certified  checks,  see  Banks  and  Banking,  g 
155. 

On  insurance  policy,  see  Insurance,  g  (S46. 

Probate  proceedings,  see  Wills,  g  288. 

To  set  aside  fraudulent  conveyance,  see  Fraud- 
ulent Conveyances,  g  282. 

IV.  Iti:i.EVANOT,MATXatIAI.ITT.ANI» 
COMPETENCY  IN  OENERAI.. 

(A)  Facts  In  laaae  and  Relevant  to  lasoea. 

g  09.  Collateral  facts  held  relevant,  if  rea- 
sonably tending  to  elucidate  the  inquiry. — Fitch 
T.  Martin  (Neb.)  60. 

g  113.  In  an  action  to  recover  the  reasonable- 
market  value  of  gravel  sold  by  the  load,  evi- 
dence offered  to  prove  the  market  value  by  the 
general  or  prevailing  price  of  gravel  is  admis- 
sible.—Monture  V.  Regling  (Wis.)  1129. 

(B)  Res  Gestn. 

g  128.  In  an  action  for  a  personal  injuiy, 
statements  of  plaintiff  as   to  her  inability   to- 


Toplca,  divisions,  *  section  ({)  NUMBERS  In  this  Index,  ft  Dec.  ft  Amer.  Olga.  ft  Raportar  Indexaa  agrM 

Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1181 


sleep,  made  to  her  physician  while  treating  her, 
are  admissible.— Marshall  t.  Saginaw  Valley 
Traction  Co.  (Mich.)  131. 

(C)   similar  Fact*   and  Transactions. 

S  142.  In  an  action  to  recover  the  reasonable 
market  value  of  gravel  sold  by  the  load,  evi- 
dence of  the  terms  of  specific  contracts  with 
other  persons  is  inadmissible. — Monture  t.  Reg- 
ling  OVis.)  1129. 

CD)  Materiality. 

I  144.  In  an  action  to  recover  land  granted 
by  the  state  as  a  part  of  an  abandoned  river 
bed,  which  was  the  dividing  line  between  this 
state  and  another,  where  defendant  claimed  that 
the  center  of  the  stream  gradually  shifted  be- 
fore it  was  abandoned,  by  avulsion,  testimony 
of  old  settlers  who  had  known  the  stream  for 
more  than  50  years  held  competent  to  show  the 
shifting  of  its  course. — Coulthard  v.  Mcintosh 
(Iowa)  233. 

i  145.'  In  an  action  on  an  insurance  policy, 
certain  evidence  held  insufficient  to  show  the 
condition  of  the  title  at  the  time  of  the  is- 
suance of  the  policy. — Kennedy  v.  London  & 
Lancashire  Fire  Ins.  Co.  (Mich.)  134. 

V.  BEST  Ain>  SECONDART  EVIDENCE. 

i  1.57.  In  an  action  for  libel,  a  question 
tisVed  plaintiff  as  to  what  he  was  charged  with 
when  arrested  held  not  objectionable  as  calling 
for  secondary  evidence.— O'Neil  v.  Adams 
(Iowa)  976. 

{  159.  Parol  evidence  is  admissible  to  show 
the  making  of  a  written  contract  which  is  lost 
or  destroyed.— Mahaffy  v.  Faris  (Iowa)  934. 

S  174.  Conductor's  reports  of  train  move- 
ments held  proper  evidence. — Minnesota  &  Da- 
kota Cattle  Co.  V.  Chicago  &  N.  W.  Ry.  Co. 
(Minn.)  493. 

I  186.  In  an  action  for  libel,  testimony  of 
a  justice  of  the  peace  that  plaintiff  was  brought 
before  him  after  being  arrested,  was  admissible, 
rather  than  the  return  of  the  officer.— O'Neil  v. 
Adams  (Iowa)  976. 

Vil.  ADMISSIONS. 

lA)  Nature,  Form,  and  Inoldenta  In  Gen- 
eral. 

I  213.  A  written  communication  from  a  sell- 
er to  a  buyer  at  a  public  sale,  in  respect  to  a 
like  communication  from  the  buyer  to  the  seller 
in  reference  to  the  purchase,  which  was  com- 
petent evidence  for  other  purposes,  was  not 
rendered  incompetent  because  it  contained  an 
offer  of  compromise.— Kendall  T,  Boyer  (Iowa) 
fl41. 

J  213.  It  was  error  to  admit  as  an  exhibit 
an  offer  of  defendant  to  pay  plaintiff  a  certain 
amount  in  settlement  of  bis  claim :  it  being  an 
offer  of  compromise. — Germain  v.  Union  School 
Dist.  of  City  of  Stanton  (Mich.)  524. 

(B)  Br    Parties    or    Others    Interested    In 
Bvent. 

Admissions  of  insanity,  see  Insane  Persons,  §  2. 

<C)  Bt  Grantors,  Former  Owners,  or  Priv- 
ies. 

i  234.  The  admissions  of  an  assignor  made 
prior  to  the  assignment  are  admissible  against 
the  assignee.— T.  D.  Kelloeg  Lumber  &  Mfg. 
Co.  v.  Webster  Mfg.  Co.  (Wis.)  737. 

{  235.  In  an  action. on  a  note,  declarations 
«f  the  payee  while  in  possession,  tending  to  im- 
peach its  validity,  are  admissible  against  a  per- 
son not  an  innocent  holder.— Benton  v.  Sikyta 
(Xeb.)  61. 


(D)  By  Aarents  or  Other  RepresentatlTcs. 

i  241.  Declarations  by  one  of  plaintiff's 
agents  to  another  of  ijlaintifCs  officers  or  agents 
concerning  a  matter  in  controversy  within  the 
scope  of  the  agent's  authority  held  admissible. — 
J,  I.  Case  Threshing  Mach.  Co.  v.  Fisher  & 
Aney  (Iowa)  575. 

{  242.  In  an  action  for  the  price  of  cattle 
feed,  in  which  defendant  connterelaimed  for 
damages  for  injury  to  the  cattle  by  feeding  it, 
certain  statements  made  by  plaintiff's  agent 
advising  plaintiff  to  continue  feeding  it  held 
not  biuding  on  plaintiff,  not  being  made  in  the 
course  of  the  agent's  employment. — Swift  & 
Co.  V.  Redhead  (Iowa)  140. 

Vni.  DE0I.ABATIONS. 

By  husband  as  to  inducements  offered  to  aban- 
don wife  as  evidence  in  action  for  alienation 
of  affections,  see  Husband  and  Wife,  {  333. 

(A)  Nature,  Form,  and  Incident*  In  Gen- 
eral. 

S  271.  Certain  evidence  held  properly  eidud- 
ed  as  a  self-serving  declaration  made  after  the 
fact.— McClatchey  v.  Anderson  (Neb.)  67. 

{  271.  A  letter  written  defendant  by  its 
bookkeeper  held  a  self-serving  declaration,  and 
incompetent  as  evidence.— T.  D.  Kellogg  Lum- 
ber &  Mfg.  Co.  V.  Webster  Mfg.  Co.  (Wis.) 
737. 

g  271.  The  unsworn  statements  of  an  agent 
are  not  evidence  in  favor  of  the  principal.— T.  D. 
Kellogg  Lumber  &  Mfg.  Co.  v.  Webster  Mfg. 
Co.  (Wis.)  737. 

X.  DOCUMENTABT  EVIDENCE. 

(A)  Publio    or    Ofllclal    Acts,    Proceedlnars. 
Records^  and  Certlilcates. 

Admissibility  of  opinion  of  court  in  action  for 
libel,  see  Libel  and  Slander,  {  123. 

S  332.  In  an  action  for  libel,  the  mayor's 
docket  showing  plaintiff's  conviction  of  drunk- 
enness held  admissible.— O'Neil  v.  Adams  (Iowa) 
976. 

(C)  Private  IWrltlnars  and  PnbUeatlons. 

§  354.  Under  St.  1898,  i  4187,  entries  in  de- 
fendant's account  books  held  inadmissible  to 
show  payment  of  an  amount  exceeding  $5.— T. 
D.  Kellogg  Lumber  &  Mfg.  Co.  v.  Webster  Mfg. 
Co.  (Wis.)  737. 

I  359.  In  an  action  for  personal  injuries  sus- 
tained in  the  operation  of  a  meat  chopping  ma- 
chine, there  was  no  error  in  admitting  photo- 
graphs taken  with  two  witnesses  for  defendant 
standing  in  the  position  in  which  they  testified 
they  stood  at  the  time  of  the  accident,  and  with 
plaintiff  standing  at  the  machine  where  the  ev- 
iSence  for  defendant  placed  him.— Harrison  v. 
Green  (Mich.)  205. 

XI.  PABOIi    OB    EXTRINSIC    EVI- 
DENCE AFFECTING  WRITINGS. 

(A)   Contradicting,  Varylnar,  or  Addlnar  to 
Terms  of   Written   Instrnntent. 

Parol  evidence  of  county  records  as  collateral 
attack  on  decision  of  county  board,  see  Coun- 
ties, S  57. 

g  397.  Parol  evidence  regarding  nature  of 
agreement  held  inadmissible,  where  entirely  in 
writing. — Reliable  Match  Co.  v.  Price  (Miun.j 
461. 

S  402.  An  unambiguous  note  cannot  be  alter- 
ed by  parol.— Kumsey  v.  Fox  (Mich.)  526. 

I  407.  An  oral  agreement  to  transport  cattle 
within  a  stipulated  time  cannot  be  shown  to 
contradict  a  bill  of  lading.— Minnesota  &  Dako- 
ta Cattle  Co.  V.  Chicago  &  N.  W.  Ry.  Co. 
(Minn.)  493. 


For  cases  in  Dec  Dig.  ft  Amer.  Dlgi.  U07  to  date  ft  Indexes  see  lama  topic  ft  sectton  (S)  NUMBER 


Digitized  by 


L-oogle 


1182 


122  NORTHWESTERN  REPORTER. 


(C)  Sepnrate    or   Snbseanemt   Oral   Am'**' 

ment. 

i  441.  Parol  eTidence  is  inadmissible  to  ea- 
tablisb  a  contemporaneous  agreement  that  a 
negotiable  instrument  was  not  to  be  negotiated. 
—Benton  v.  Siliyta  (Neb.)  61. 

(D)  Oomatraotioa    or  Application    of   Idta- 

■rnase   of  'Written  Inatrnment. 

{  448.  A  resolution  of  a  limited  copartner- 
ship held  unambiguous,  rendering  parol  evi- 
dence inadmissible.— Lipsett  t.  Hassard  (Mich.) 
1091. 

{  459.  A  person  who  contracts  with  another 
and  reduces  the  contract  to  writing  In  the  name 
of  his  agent  may  I>e  identified  by  parol  as  the 
real  party  in  interest — Pleins  v.  Wachenheimer 
(Minn.)  106. 

i  462.  Parol  evidence  is  admissible  to  show 
the  purpose  for  which  a  note  was  executed, 
where  sued  on  by  the  payee.— Davis  v.  Stems 
(Neb.)  672. 

I  462.  Parol  evidence  held  admissible  to  show 
that  a  note  was  merely  executed  for  a  certain 
purpose.— Davis  v.  Stems  (Neb.)  672. 

(B)  Sho'vrtnv    Dlaeharse    or    Pertonaaaee 
of  Obllsatlon. 

I  4G6.  A  joint  maker  of  a  note  cannot  change 
it  by  parol  evidence  to  the  effect  that  the  payee 
had  told  him  that  he  had  nothing  to  do  with 
the  note,  but  that  it  would  be  taken  can  of. 
—Lipsett  V.  Hassard  (Mich.)   1091. 

Zn.  OPimON  EVIDENOE. 

(A)  CoBclnslons     and     Opinions     ot     IVlt- 
aesaes  la  General. 

g  471.  Certain  testimony  held  admissible, 
as  against  the  objection  that  a  statement  there- 
in embodied  the  conclusion  of  the  witness.- 
Markley  v.  Western  Union  Telegraph  C!o. 
(Iowa)  136. 

g  471.  In  an  action  for  injuries  claimed  to 
have  been  caused  by  frightening  a  horse  with 
an  automobile,  an  objection  to  a  question  to  de- 
fendant held  properly  sustained,  on  the  ground 
that  the  inquiry  merely  called  for  computation. 
— Delfs  T.  Dunsbee  (Iowa)  236. 

{  471.  In  an  action  for  injuries  claimed  to 
have  been  caused  by  the  frightening  of  a  horse 
with  an  automobile,  a  question  to  defendant 
held  properly  excluded  calling  for  the  conclu- 
sion of  the  witness. — Delfs  v.  Dunshee  (Iowa) 
236. 

I  471.  In  a  will  contest  on  the  ground  of 
unsoundness  of  mind  of  testatrix  and  undue 
influence,  testimony  of  nonexpert  witnesses  as 
to  how  testatrix's  condition  at  a  given  tive 
compared  with  her  appearance  and  condition 
at  another,  though  in  the  nature  of  a  conclu- 
sion, was  admissible  evidence  as  a  fact. — In  re 
Winslow's  Will  (Iowa)  971. 

I  471.  Question  held  to  leave  the  determina- 
tion of  certain  facts  to  the  opinion  of  the  wit- 
ness, and  objection  was  properly  sustained  there- 
to.—Phillips  V.  Menomonie  Hydraulic-Press 
Brick  Co.  (Minn.)  874. 

S  471.  Where  the  opinion  of  a  witness  is  a 
mere  shorthand  rendering  of  the  facts,  it  can  be 
given. — Phillips  v.  Menomonie  Hydraulic-Press 
Brick  Co.  (Minn.)  874. 

(B)  Snbleota  of  Kxpert  Testimony, 

{  513.  Evidence  by  a  properly  qualified  ex- 
pert as  to  the  method  by  which  he  would  exam- 
ine a  bridge  to  ascertain  its  condition  held  ad- 
missible, in  an  action  for  injuries  caused  by  the 
collapse  of  the  bridge. — Greenway  v.  Taylor 
County  (Iowa)  943. 


(C)  Coaipetenox  of  Kzperts« 

I  636.  A  witness  held  competent  to  testify 
as  an  expert  as  to  the  characteristics  and  hab- 
its of  horses.- Delfs  v.  Dunshee  (Iowa)  236. 

g  637.  A  physician  held  entitled  to  sute  his 
opinion  concerning  the  extent  of  plaintiff's  in- 
jury.— Monaghan  t.  Northwestern  Fud  Co. 
(Wis.)  1066. 

5643^.  In  condemnation  proceedings  by  a 
Iroad  to  secure  a  rij^ht  of  way,  witnesses 
held  qualified  to  give  opinion  evidence  as  to  dam- 
ages.—Wolf  V.  Oreen  Bay,  O.,  M.  &  S.  W.  By. 
Co.  (Wis.)  743. 

(D)  Bxaialaattoa  ot  Bzperta. 

Review   as   dependent   on    objections   in  lower 
court,  see  Ai^peal  and  Error,  |  231. 

i  547.  In  an  action  for  personal  injnriee. 
evidence  by  plaintiff's  physician  as  to  whether 
the  injuries  were  such  as  would  be  likely  to 
cause  pain  held  admissible. — Greenway  T.  Tay- 
lor Connty  (Iowa)  943. 

I  547.  In  an  action  against  a  town  for  per- 
sonal injuries  caused  by  a  defective  highway, 
a  question  to  an  expert  how  the  injuries  af- 
fected plaintiff  was  proper,  where  the  word  "in- 
jury" referred  to  the  bruise  upon  plaintiff,  and 
not  to  the  mere  Invasion  of  her  legal  rights.- 
Dralle  v.  Town  of  Reedsburg  (Wis.)  771. 

I  563.  A  hypothetical  question,  put  to  a  phy- 
sician testifying  in  an  action  for  malpractice, 
held  improper.— Farrell  v.  Haze  (Mich.)  197. 

I  668.  In  a  personal  Injury  action,  it  wa:: 
unnecessary  that  a  hypothetical  question  wheth- 
er the  injfury  received  was  a  sufficient  prodncing 
cause  of  the  condition  discovered  should  in- 
clude among  existing  conditions  which  would 
tend  to  affect  her  physical  condition  the  fact 
that  plaintiff  had  given  birth  to  seven  chil- 
dren, all  of  whom  died  in  infancy. — Dialle  v. 
Town  of  Reedsburg  (Wis.)  771. 

{  555.  A  statement  of  the  phyaidan,  who 
treated  plaintiff  suing  for  a  personal  injury, 
held  admissible  as  against  a  certain  objection. 
— Marshall  v.  Saginaw  Valley  Traction  Co. 
(Mich.)  131. 

f  665.  Where  an  expert  witness  testified 
that,  unless  certain  facts  were  known  to  him, 
his  opinion  would  not  be  accurate,  and  some 
of  such  facts  were  unknown,  his  opinion  held 
not  erroneously  rejected. — Fitch  v.  Martin 
(Neb.)  50. 

(F)  Bfleot  of  Oplaloa  Bvldeaee. 

J  671.  In  a  will  contest  testimony  of  medi- 
men  of  experience  in  such  cases  as  to  the 
mental  condition  of  testator  at  or  about  the 
time  the  will  was  executed,  based  on  knowledge, 
observation,  or  treatment,  may  ie  given  more 
weight  than  the  testimony  of  nonprofessional 
witnesses  though  that  is  for  the  jury  to  de- 
termine—In  re  Winslow's  Will   (Iowa)   971. 

f  571.  A  jury  may  decline  to  accept  the 
opinion  of  expert  witnesses  on  the  value  of  an 
architect's  services,  though  uncontradicted,  and 
base  their  verdict  on  their  own  deductions.— 
Davis  V.  School  Dist.  of  City  of  South  Omaha 
(Neb.)  38. 

S  571.  Where  a  witness  testifies  as  an  ex- 
pert as  to  the  value  of  an  architect's  services, 
the  same  rule  will  be  applied  that  is  ordinarily 
applied  to  expert  testimony. — Davis  v.  School 
Dist.  of  City  of  South  Omaha  (Neb.)  38. 

{  571.  The  opinion  of  expert  witnesses  as  to 
the  value  of  an  architect's  services  held  not 
required  to  be  substituted  by  the  jury  for  its 
own  judgment. — Davis  v.  School  Dist  of  City 
of  South  Omaha  (Neb.)  38. 


To;>lok,  dlvisloDi,  *  secUon  (i)  NUMBER^  In  tUs  Index,  t  Deo.  *  Amer.  Digs.  *  Reporter  Indexes  agrM 

Digitized  by  VjOOQ  l€ 


INDEX-DIOEST. 


U83 


XHZ.  EVTSENC^  AT  FOBMEB  TBIAX. 
OB  nr  OTHER  PBOCEEDnro. 

(  682.  Where  the  court  rejected  all  the  cer- 
tificates attached  to  a  docnment  pnrportine  to 
be  a  bill  of  exceptions  of  the  testimony  giTen 
on  a  former  trial,  it  was  not  error  to  refuse  to 
permit  a  witness  testimony  to  be  read  there- 
from.—Young  V.  Kinney  (Neb.)  679. 

XXV.  WEIGHT  Ain>   STTTFIOIENOT. 

Province   of   court    and   juiy    in    general,    see 

Trial.  I  t»4. 
Question  of  law  or  fact  in  general,  Be«  Trial, 

S  138. 

^«  to  partimUar  faeU  or  i*»ue». 
See  Damages.  |  18.5 ;    Payment,  {f  73,  74. 
Acceptance  of  subscription,  see   Subscriptions, 

«  21. 
Character  of  transaction  as  deed  or  mortgage, 

see  Mortgages,  {  S8. 
Delivery  of  deed,  see  Deeds,  |  208. 
Incompetency  or  negligence  of  fellow  servant, 

see  Master  and  Servant,  {  279. 
Mental  capacity  to  execute  deed,  see  Deeds,  | 

211. 
Xe^Iitrence  of  master,  see  Master  and  Servant, 

S  278. 
Rescission  of  contract  of  sale,  see  Snies,  (  128. 
Undue  Influence  procuring  making  of  will,  see 

wuis,  g  lee. 

In  particular  civil  aetiom  or  proccedingi. 

See  Divorce,  U  124,  133;  Malicious  Prosecn- 
tion,  8  64;  Replevin,  |  72;  Specific  Per- 
formance, I  121. 

For  breach  of  contract,  see  Contracts,  §  350. 

For  breach  of  coirtract  for  sale  of  land,  see 
Vendor  and  Purchaser,  |  ,S50. 

For  breach  of  warranty,  see  Sales,  $  441. 

For  causing  death,  see  Death,  §  76. 

For  compensation  of  broker,  see  Brokers,  |  86. 

Foreclosure,  see  Mortgages,  {  463. 

For  injuries  fmra  obstructions  or  defects  in 
highway,  see  Highways,  §  211. 

For  injuries  from  operation  of  street  railroads, 
see  Sfreet  Railroads,  {  114. 

For  injuries  from  sale  of  liquors,  see  Intoxica- 
ting Liquors.  {  310. 

For  injuries  to  passenger,  see  Carriers,  |  318. 

For  injuries  to  servant,  see  Master  and  Serv- 
ant, if  278,  279. 

On  benefit  certificate,  see  Insurance,  §  819. 

On  bill  or  note,  see  Bills  and  Notes,  $  ni6. 

On  insurance  policy,  see  Insurance,  |  665. 

On  subscription,  see  Subscriptions,  |  21. 

Probate  proceediiips,  see  W  ills,  fl  3^)2. 

To  set  aside  fraudulent  conveyance,  see  Fraud- 
ulent Conveyances,  %  301. 

8  587.  Circumstances  being  reasonably  con- 
sistent with  violation  of  a  penal  statute  and 
also  inconsistent  therewith,  held  that  the  lat- 
ter theory  should  prevail. — McNaugbton  v.  Des 
Moines  Life  Ins.  Co.  (Wis.)  764. 

{  588.  It  requires  an  extraordinary  esse  \o 
authorize  the  court  to  regard  as  manifestly  im- 
possible and  untrue  sworn  testimony. — Bates  v. 
Chicago,  M.  &  St.  P.  Ey.  Co.  (Wis.)  745. 

g  698.  Though  a  preponderance  of  testimony 
is  all  that  is  required  in  a  civil  case,  what  con- 
stitutes a  preponderance  may  vary  according 
to  the  circumstances. — Bingaman  t.  Bingaman 
(Neb.)  981. 

EXAMINATION. 

Of  expert  witnesses,  see  EJvldence,  gg  647-55.5. 
Of  witnesses  in  general,  see  Witnesses,  g|  267- 
269. 

EXCe»TIONS. 

In  judicial  prooeeding». 
Necessity   for  purpose   of   review,   see   Appeal 
and  Error,  gf  256-273. 


To  be  shown  In  appeal  record,  see  Appeal  and 

Error,  }  501. 
To  pleading,  see  Pleading,  gg  189-21& 

EXCEPTIONS.  BILL  OF. 

Necessity  for  purpose  of  review,  see  Appeal 
and  Error,  g  544;    Criminal  Law,  g  1091. 

Taking  exceptions  at  trial,  see  Trial,  gg  83, 
105,  27a 

n,  SETTLEBT^NT,   SIOmNO,  AHD 
TtSSSQ. 

g  88.  That  the  preparation  of  a  bill  of  ex- 
ceptions was  done  by  a  stenographer  will  not 
excuse  a  prolix  bill. — People  v.  Van  Alstyne 
(Mich.)  193. 

EXCESSIVE  DAMAGES. 

See  Damages. 

EXCHANGE  OF  PROPERTY. 

Necessary  party  in  action  to  rescind  contract, 
see  Parties,  g  6. 

I  11.  Rules  relating  to  rescission  of  sales 
are  inapplicable  to  a  contract  for  the  exchange 
of  property  unless  there  has  been  a  completed 
transfer.— Stine  v.  Foster  (S.  D.)  698. 

I  13.  In  replevin  to  recover  horses  delivered 
to  defendant  on  an  exchange,  an  instruction 
that  the  question  depended  on  whether  a  right 
to  return  the  animals,  if  dissatisfied,  was  re- 
served, A«l<I  correct— Stine  v.  Foster  (8.  D.) 
698. 

g  13.  In  replevin  to  recover  horses  exchang- 
ed, an  instruction  that  plaintiff  could  recover 
only  if  there  was  no  agreement  for  a  return 
of  the  property  in  case  either  should  be  dis- 
satisfied held  proper.— Stine  t.  Foster  (8.  D.) 
598. 

EXCHANGES. 

Of  circuits  by  Judges,  see  Judges,  f  29. 

EXCISE. 

Regulation  of  traflic  in  Intoxicating  liquors,  sec 
Intoxicating  Liquors. 

EXCLUSION. 

Of  witnesses  from  courtroom,  see  Trial,  g  41. 

EXECUTION. 

See  Attachment ;    Garnishment. 

Exemptions,   see   Homestead. 

Of  tax  deed,  see  Taxation,  g  765. 

n.  PROPEBTT  BTTBJEOT  TO  EXECU- 
TION. 

g  49.  A  Judgment  Is  not  subject  to  execution 
except  by  antnoritj  of  statute  and  in  strict 
accordance  with  the  method  prescribed.— Acme 
Harvesting  Mach.  Co.  v.  Hinkley  (S.  D.)  482. 

g  49.  A  judgment  is  personal  property  sub- 
ject to  levy  and  sale  on  execution,  under  Rev. 
Code  Clv.  Proc.  gS  336,  340.— A<  me  Harvesting 
Mach.  Co.  T.  Hinkley  (S.  D.)  482. 

g  51.  Evidence  held  to  show  that  a  Judgment 
creditor  owned  an  interest  in  the  partnership 
business  of  breeding  cattle,  authorizing  a  levy 
on  his  interest  to  satisfy  the  judgment.— Shaw 
V.  Roberts  (Iowa)  932. 

XV.  X.IEN.  r^VT  OB  EXTENT,  Aini 
CUSTODY  OF  PBOFEBTY. 

g  156.  Judgment  creditor  of  a  partner  levy- 
ing on  firm  property  held  not  entitled  to  com- 


VW  eases  In  Dse.  Dig.  *  Aner.  Digs.  1907  to  date  *  IndexM  ■•• 


same  toplo  *  section  (|)  NVMBBB 

Digitized  by  LjOOQ  l€ 


1184 


122  NORTHWESTERN  REPORTER. 


plain    of   the   proportion   of   the   selling   price 
awarded  to  liim.— Sliaw  t.  Rol)ert8  (Iowa)  932. 

VU.   SAI.E. 

Penalties  against  officers  making  sales  with- 
out authority,  see  SheritFs  and  Constables,  i 
162. 

EXECUTORS  AND  ADMINISTRATORS. 

See  Descent  and  Distribution;   Wills. 
Courts  of  probate,  see  Courts,  {  200%. 
Testamentary  trustees,  see  Trusts. 
Testimony  as  to  transactions  with  decedents, 
see  Witnesses,  §  159. 

n.  APPonrrMENT,  QUAiiiFiOATioir, 

AND   TENURE. 

{  20.  One  having  no  interest  in  the  estate  is 
not  entitled  to  i>etition  for  the  apiKtintment  of 
an  administrator. — Diem  v.  Drogmiller  (Mich.) 
037. 

f  29.  A  holding  that  an '  administrator,  ap- 
pointed on  the  application  of  defendant's  sister 
for  the  purpose  of  suing  for  the  conversion  of 
personalty,  which  the  will  gave  to  him  and  bis 
mother  jointly,  could  not  maintain  the  action 
therefor,  l>ecause  the  sister  had  no  interest  in 
the  estate  when  she  applied  for  the  administra- 
tor's appointment,  held  not  a  collateral  attack 
on  the  decision  appointing  the  administrator. — 
Diem  y.  Drogmiller  (Mich.)  637. 

{  35.  One  held  not  estopped  from  petitioning 
for  the  removal  of  an  executor.— In  re  Rice's 
Estate  (Mich.)  212. 

i  35.  The  court  may  remove  an  executor 
who  becomes  a  nonresident  and  withdraws  from 
the  jurisdiction  of  the  court  the  funds  of  the 
estate,  and  who  for  more  than  two  years  has 
failed  to  file  with  the  court  any  account. — In 
re  Rice's  Estate  (Mich.)  212. 

{  37.  The  appointment  of  an  administrator 
to  succeed  an  executor  removed  for  good  cause 
will  not  be  disturbed,  where  the  appointment 
is  satisfactory  to  one  entitled  to  more  than 
four-fifths  of  the  estate.— In  re  Rice's  Estate 
(Mich.)  212. 

lU.  ASSETS,  APPRAISAL,  ANB  IN- 
VENTOBT. 

Priority  of  lien  acquired  in  creditor's  suit  as 
against  rights  of  personal  representative,  see 
Creditors'  Suit,  i  30. 

i  39.  A  certificate  of  mortgage  foreclosure 
sale  is  personal  property,  and  may  be  assigned 
by  an  executor.— Winterberg  v.  Van  De  Vorste 
(N.  D.)  806. 

f  43.  A  sheriff's  certificate  of  sale  under 
foreclosure  by  advertisement  is  personal  prop- 
erty and  transferable  by  the  executor  of  the 
deceased  mortgagee  in  whose  name  the  certifi- 
cate was  issued. — Boschker  v.  Van  Beek  (N.  D.) 
338. 

i  51.  Rights  of  action  under  the  survival  act 
(('omp.  Laws,  $  10.117)  and  the  -death  act 
(Comp.  Laws,  §  10,427)  are  assets  of  the  estate 
vested  in  the  administrator,  and  the  acts  do 
not  give  a  double  cause  of  action  ;  the  exist- 
ence of  one  being  entirely  inconsistent  with  the 
existence  of  the  other.— Carbary  v.  Detroit 
United   Ry.    (Mich.)   367. 

TV.   OOXXECTION  AND  MANAGEMENT 
OF   ESTATE. 

(A)  In  General. 

Sufficiency  of  bill  to  state  equitable  action  for 
accounting  as  to  property  claimed  to  belong 
to  decedent's  estate,  see  Account,  §  12. 

{  104.  An  administrator  is  properly  charg- 
ed with  interest  on   funds  of  the  estate  which 


he  failed  to  deposit  and  commingled  with  his 
own  funds,  thereby  losing  the  estate  3  per 
cent,  semiannual  interest,  aud  with  interest  on 
a  claim  which  he  neglected  to  pay  as  order- 
ed by  the  court,  as  well  as  with  rent  lost  by 
his  neglect— Zimmer  v.  Saier  (Mich.)  563. 

I  118.  An  administrator  is  properly  charg- 
ed with  interest  on  funds  of  the  estate  whidi 
he  failed  to  deposit  and  commingled  with  his 
own  funds,  thereby  losing  the  estate  3  per 
cent,  semiannual  interest,  an<l  with  interest 
on  a  claim  which  he  neglected^Ho  pay  as  or- 
dered by  the  court,  as  well  as  with  rent  lost 
by  his  neglect.— Zimmer  v.  Saier  (Mich.)  563. 

I  119.  No  action  lies  against  the  estate  of 
a  decedent  for  injuries  caused  one  after  de- 
cedent's death  by  the  falling  of  glass  from  a 
building  belonging  to  the  estate.— Bannigau  t. 
Woodbury  (Mich.)  531. 

i  119.  It  is  the  duty  of  an  administrator 
lawfully  in  possession  of  real  estate  of  his  in- 
testate to  keep  it  in  a  safe  condition  so  as  to 
protect  travelers  along  the  street  on  which 
It  is  situated,  and  for  negligent  failure  to  do 
so,  resulting  in  injury  to  others,  he  is  individ- 
ually liable.— Bannigan  v.  Woodbury  (Mich.) 
531. 

I  120.  Power  in  executor  to  sell  real  estate 
held  to  vest  in  administrator  where  executor  re- 
signs.- In  re  Manning's  Estate  (Neb.)  711 ; 
Bonacum  v.  Manning,  Id. 

I  121.  Power  in  executor  to  sell  real  estate 
held  to  vest  in  administrator  with  will  annex- 
ed.—In  re  Manning's  Estate  (Neb.)  711;  Bona- 
cum T.  Manning,  Id. 

(B)  Real  Propertjr  and  Interests  Therein. 

i  138.  Executor  held  empowered  to  sell  real- 
ty when  necessary  to  a  division  of  testator's  es- 
tate.— In  re  Manning's  Estate  (Neb.)  711 ;  Bon- 
acum v.  Manning,  Id. 

(C)  Personal  Property. 

S  167.  Assignment  of  certificate  of  sale  on 
foreclosure  by  executor  of  deceased  holder  held 
valid.— Boschker  v.  Van  Beek  (N.  D.)  338. 

V.  AIXOWANCES  TO  SUBVIVIIIQ 

WIFE,  HUSBAND,  OB 

OHII<DBEN. 

{  176.  It  is  within  the  county  court's  discre- 
tion not  to  allow  a  widow  anything  for  sup- 
Sort  where  during  the  administration  of  her 
usband's  estate  she  is  in  the  state  hospital 
for  insane,  and  maintained  by  it  without  cost 
to  her  or  his  estate. — In  re  Manning's  Estate 
(Neb.)  711 ;   Bonacum  v.  Manning,  Id. 

S  177.  Widow  of  a  testator  held  entitled  un- 
der Comp.  St.  1903.  c.  23,  $  176,  snbd.  1. 
to'  the  chattels  therein  specified.— In  re  Man- 
ning's Estate  (Neb.)  711;  Bonacum  v.  Man- 
ning, Id. 

{  178.  Widow  of  a  testator  held  entitled,  un- 
der Comp.  St.  1903,  c.  23,  f  176.  subd.  1,  to 
S200  in  cash.— In  re  Manning's  Estate  (Neb.) 
711 ;    Bonacum  v.  Manning,  Id. 

f  182.  Property  which  the  widow  of  a  tes- 
tator is  entitled  to  under  Comp.  St.  1905,  c.  2.'i. 
§  17G,  subd.  1,  held  not  assets  in  the  executor's 
hands.-^In  re  Manning's  Estate  (Neb.)  711: 
Bonacum  v.  Manning,  Id. 

§  186.  Under  Comp.  St.  1907.  S  3000  (Cob- 
bey's  Ann.  St.  1907,  |  4903),  held,  that  the  sur- 
viving husband  or  wife  cannot  be  deprived  by 
decedent's  will  of  the  allowance  therein  provideil 
for.- In  re  O'Shea's  Estate  (Neb.)  881;  O'Shea 
V.  Breunig,  Id. 


Topics,  divisions,  &  section  (i)  NUMBERS  ta  this  Indax,  ft  Dec.  A  Amar.  Digs,  ft  Beportw  IsAsbm  acrsa 

Digitized  by  LjOOQ  l€ 


INDEX-DIGEST. 


1185 


▼X.  AI.X.OWAH0E  AND  PAYMENT  OF 
OXJLUCS. 

(A)  LtablUtleB  of  B«te«e. 

I  221.  In  a  proceeding  to  establish  a  claim 
against  a  decedent's  estate  for  nonfalflllment  of 
a  contract  that,  if  claimant  would  remain  with 
decedent  and  perform  services  until  his  death,  he 
would  give  her  his  farm  or  its  value,  certain  ev- 
idence held  ,not  erroneously  admitted  on  the 
ground  that  it  showed  that  no  contract  had 
t>een  made.— Forsy the  v.  Thompson's  Estate 
(Mich.)  219. 

I  221.  In  a  proceeding  to  establish  a  claim 
against  a  decedent's  estate  for  nonfulfillment  of 
a  contract  that,  if  claimant  would  remain  with 
decedent  and  perform  services  until  his  death, 
he  would  give  ner  his  farm  or  its  value,  certain 
evidence,  though  not  in  the  exact  terms  of  the 
contract  set  out  bv  claimant,  held  not  errone- 
ously admitted.— Forsythe  v.  Thompson's  Es- 
tate (Mich.)  219. 

(B)  PreBentatlon   and   Allo'wanee* 

Effect  of  filing  claim  as  against  rights  ac(tuired 
by  creditor's  suit,  see  Creditors'  Suit,  |  36. 

(G)  Dlapnted  Claims. 

I  254.  Held,  that  a  verdict  of  |9,(X)0  for 
services  rendered  in  the  family  of  a  decedent 
under  contract  was  excessive,  and  should  be  re- 
duced to  $7,000.— Forsythe  v.  Thompson's  Es- 
tate (Mich.)  219. 

VU.  DISTBIBUnON  OF  ESTATE. 

i  316.  Decrea  of  distribution  defined.— Sjoli 
T.  Hogenson  (V.  D.)   1008. 

I  316.  After  a  final  decree  of  distribution,  a 
distributee  can  maintain  an  action  against  the 
administrator  and  his  bondsman  for  the  amount 
assigned  by  such  decree.— Sjoli  t.  Hogenson 
(N.  D.)  1008. 

X.   ACTIONS. 

Sight  of  recovery  on  mutual  benefit  insurance 
certificate,  see  Insurance,  |  777. 

i  437.  An  administrator  appointed  on  the 
application  of  defendant's  sister,  who  had  no 
interest  in  the  estate  to  entitle  her  to  apply  for 
his  appointment,  heid  not  entitled  to  sue  for  the 
conversion  of  personalty  which  the  will  gave 
to  defendant  and  bis  mother  jointly,  but  of 
which  defendant  bad  had  sole  possession  and 
use  for  18  years  with  his  mother's  acquiescence. 
—Diem  v.  Dvogmlller  (Mich.)  637. 

{  444.  In  an  action  against  an  administrator 
for  Injuries  to  plaintiff  through  glass  falling 
from  the  windows  of  a  building  negligently 
permitted  by  defendant  to  become  unsafe,  the 
allegation  that  defendant  is  administrator  and, 
as  snch,  in  possession  of  the  prop«r^,  does 
not  necessarily  negative  his  personal  liability, 
and  may  be  treated  merely  as  descrmtio  per- 
sonee  and  surplusage.— Bannigan  v.  Woodbury 
(Mich.)  531. 

I  450.  It  will  be  presumed  that  an  admin- 
istrator in  charge  and  control  of  his  intestate's 
building  is  legally  in  control  and  possession 
ontil  the  contrary  is  shown.— Bannigan.  v. 
Woodbury  (Mich.)  631. 

I  450.  In  a  suit. by  an  administrator  against 
an  heir  and  legatee  for  the  conversion  of  prop- 
erty of  the  estate,  which  the  will  gave  to  de- 
fendant and  bis  mother  jointly,  testimony  of 
defendant's  sister  held  to  show  that  when  de- 
fendant gave  his  mother  a  sum  for  her  interest 
in  the  realty,  the  ownership  of  tbe  personalty 
was  settled,  leaving  defendant  in  possession  and 
ownership  thereof.— Diem  v.  Drogmiller  (Mich.) 
637. 


XI.  ACOOUNTINO  AND  SETTLEBEENT. 

(D)  Compensation. 

Right  to  jury  trial  on  appeal  from  order  al- 
lowing extra  compensation,  see  Jury,  {  17. 

I  501.  It  is  proper  for  a  circuit  judge  pass- 
ing on  an  administrator's  account  to  possess 
himself  of  all  the  information  obtainable  as  to 
the  manner  of  his  administration  as  bearing  on 
his  right  to  extra  compensation. — In  re  Fisch- 
er's Estate  (Mich.)  257. 

f  501.  Except  in  the  case  of  an  abuse  of 
discretion,  the  amount  of  an  allowance  of  extra 
compensation  for  an  administrator  is  a  question 
for  the  trial  court. — In  re  Fischer's  Estate 
(Mich.)  257. 

(E)  Statlnv>    Settllnar,    Opentnar,    and    Re* 
▼lew. 

§  509.  A  petition  to  set  aside  the  allowance 
of  an  administrator's  final  account  held  to  show 
mistake  or  fraud,  and  sufficient,  even  if  Act  Na 
271,  p.  417  (Pub.  Acts  1905)  U  to  be  construed 
to  require  a  showing  of  fraud,  accident,  or  mis- 
take to  authorize  Qie  probate  conrt  to  enter* 
tain  such  a  petition.— In  re  Mills  (Mich.)  1080. 

Xm.   LIABIUTIES  ON  ADHINISTRA- 
TION  BONDS. 

S  533.  Decree  of  distribution  held  conclu- 
sive against  the  administrator  and  his  bonds- 
men.—Sjoli  T.  Hogenson  (N.  D.)  1008. 

EXEMPLARY  DAMAGES. 

See  Damages. 

B^or  false  imprisonment,  see  False  Imprison- 
ment, I  85. 

EXEMPTIONS. 

See  Homestead. 

From  taxation,  see  Taxation,  {  200. 

EXPENDITURES. 

By  de  facto  guardian,  see  Guardian  and  Ward, 
16. 

By  guardian  of  insane  person,  see  Insane  Per- 
sons, {  65. 

EXPERT  TESTIMONY. 

In  civil  actions,  see  Evidence,  ||  471-671. 
In  criminal  prosecutions,  see  Criminal  Law,  S| 

4A9-A79. 
On  examination  of  long  accounts  as  best  for 

secondary,  see  Criminal  Law,  |  400. 

EXPLOSIVES. 

I  9.  In  an  action  for  injarie*  caused  by  the 
use  of  a  dangerously  inflammable  stove  polish 
put  on  the  market  b^  defendant,  the  manu- 
facturer, special  questions  to  the  jury,  as  to 
bow  it  was  i^ited  when  used  by  plaintiff. 
Were  inconclusive  of  the  real  issue,  and  there 
was  no  error  in  not  submitting  them  for  that 
reason.— Clement  v.  Crosby  &  Co.  (Mich.)  263. 

I  9.  In  an  action  for  injuries  caused  by  the 
use  of  a  dangerously  inflammable  stove  polish 
pat  on  the  market  by  defendant,  the  manu- 
facturer, held,  that  a  variance  between  the 
declaration  and  proof  as  to  bow  tbe  ignition  was 
caused  was  not  vital  to  plaintiff's  right  to 
recover.— Clement  v.  Crosby  &  Co.  (Mich.)  263. 

I  9.  In  an  action  for  injuries  by  the  ignition 
of  stove  polish  manufactured  by  defendant,  tes- 
timony Keld  to  warrant  a  finding  that  it  was 
negligent  to  place  it  on  the  market  for  sale 
for  common  use,  without  notifying  tbe  public 


For  CBSM  in  Dec.  Die.  A  Amer.  Digs.  1997  to  date  A  Indexes  see  lam*  topic  ft  section  (i)  NUMBER 
122N.W.-75 


Digitized  by  VjOOQ  l€ 


118» 


122  NORTHWESTERN  REPORTER. 


br  proper  label  or  otherwise  of  ita  dancerona 
cnaracter.— Clement  t.  Crosby  ft  Co.  (Mich.) 
263. 

EX  POST  FACTO  LAWS. 

Oonstitatlonal    restrictions,    see    Constitutional 

Law,  I  100. 
Retroactire  operation  of  atatates,  se*  Statntea, 

J  263. 

EXTENSION. 

Of  time  for  taking  appeal,  see  Appeal  and  Er- 
ror, i  854. 

FACTORIES. 

Regulations  as  to  employment  of  minors,  see 
Master  and  Servant,  |  96. 

FACTORS. 

See  Brokeis;    Principal  and  Agent 

FALSE  IMPRISONMENT. 

See  Malicious  Prosecution. 

I.   CIVIX.  LIABIUTT. 

(A)  AotaConatltiitlnK  FalB.e  lanprlaOBBieat 
.    aad  Liability  Therefor. 

f  7.  An  arrest  of  one  without  warrant  for 
selling  meat  without  license  was  illegal,  the 
offense  being  neither  a  felony  nor  breach  of  the 
peace,  and  the  officer  is  liable  to  the  one  ar- 
rested for  the  actual  damages  caused  thereby. 
— Schnider  t.  Montrosa  (Mich.)  531. 

i  7.  An  action  for  false  imprisonment  can- 
not be  based  upon  an  arrest  under  a  warrant 
fair  upou  its,  face.-rSchnider  v.  Montross 
(Mich.)  534. 

I  14.  In  actions  for  malicious  prosecution 
and  false  imprisonment,  proof  that  defendant 
as  prosecutiiig  witness  in  good  faith  fully  and 
fairly  stated  .all  of  the  material  facts  within 
his  icoQwledge  to  the  prosecuting  officer  and 
acted  on  his  advice  establishps  n  case  of  prob- 
able cause.— Smith  t.  Tolan  (Mich.)  513. 

(B)  Actions. 

I  23. '  Certain  evidence,  in  an  action  against 
a  charitable  institution  for  unlawfully  detaining 
a  girl,  held  admissible  to  show  a  motive  other 
than  a  charitable  one. — Gallon  t.  House  of  Good 
Shepherd  (Mich.)  631. 

{  35.  If  an  officer  acted  wantonly,  reck- 
lessly, or  maliciously  in  illegally  arresting 
plaintiff  without  a  warrant,  he  may  recover 
exemplary  damages  in  an  action  for  false  im- 
prisonment.— Schnider  v.  Montross  (Mich.)  534. 

S  36.  Where  a  girl  16  :rear8  old  was  unlaw- 
fully detained  by  a  charitable  inatitntion  for 
the  reformation  of  women  and  girls  for  seven 
years  against  her  will,  without  the  knowledge 
of  her  relatives,  a  recovery  of  $2,500  was  not 
excessive.— Gallon  r.  Hoose  of  Good  Shepherd 
(Mich.)  631. 

FALSE  PRETENSES. 

I  8.  Where  a  person  obtained  goods  on  the 
strength  of  a  financial  statement,  furnished  to  a 
bank  to  which  he  referred,  that  the  bank  made 
a  slight  mistake  in  referring  to  the  statement 
held  not  to  affect  the  buyer's  liability  for  the 
falsity  of  the  statement— People  v.  Andre 
(Mich.)  98. 

I  43.  In  a  prosecution  for  obtaining  goods 
under  false  pretenses,  certain  evidence  held  ad- 
missible.— People  V.  Andre  (Mich.)  98. 

f  51.  In  a  prosecntion  for  obtaining  goods 
by  false  pretenses,  whether  a  statement  of  ac- 


cused's pecuniary  circumstances  filed  with  a 
bank  was  true  held  for  die  Jury. — ^People  v. 
Andre  (Mich.)  98. 

FALSUS  IN  UNO,  FALSUS  IN 
OMNIBUS. 

See  Witnesses,  (  317. 

FEES. 

Jury  fees,  see  Jury,  I  77. 

Of  tax  collector,  see  Taxation,  |  648. 

FEE  SIMPLE. 

Creation  by  will,  aee  WUls,  H  600,  601. 

FENCES. 

Fencing  against  animals,  see  Animals,  ff  GO, 
92.  , 

FIDUCIARY  RELATIONS. 

Affecting  Taliditr  of  contract  see  Contracts,  i 

ua 

FILING. 

Papers  in  court  of  record,  see  Records,  |  7. 
Record  on  appeal  or  writ  of  error,  see  Appeal 
and  Error,  {  621. 

FINAL  JUDGMENT. 

Appealability,  see  Appeal  and  ^rror.  $  G9. 

FINDINGS. 

On  reference,  see  Reference,  |  99. 

Review  on  appeal  or  writ  of  error,  see  Appeal 

and  Error,  §§  1008-1012. 
Special  findings  by  Jury,  see  Trial,  SS  349-362. 

FIRES. 

Prevention  of  by  city  under  police  power,  si<« 
Municipal  CoriMrationa,  $  603. 

FLOWAGE. 

See  Waters  and  Water  (bourses,  H  164-179 

FOOD. 

Certificate  <it  dairy  and  food  commissioner  as 
to  analysis  of  milk  as  ground  for  probable 
cause  for  prosecution  for  adulteration,  see 
Malicious  Prosecution,  |  18. 

FORCIBLE  DEFILEMENT. 

See  Rape. 

FORCIBLE  ENTRY  AND  DETAINER. 

I.  OlVUi  lilABIUTT. 

I  80.  A  defendant  holding  posaeaaion  of  land 
under  a  claim  of  right  hela  not  liable  to  the 
real  owner  for  the  treble  damages  provided  for 
in  Rev.  dr.  Code,  {  2322.— Baldwin  ▼.  Boh!  (S. 
D.)  247. 

FORECLOSURE. 

Of  lien,  see  Mechanics'  Uens,  H  277,  281. 
Of  mortgage,  see  Mortgages,  H  338,  4(i0-553. 

FOREIGN  CORPORATIONS. 

See  Corporations,  Sl  659-670. 


Topics,  divisions,  A  sseUon  (i)  NUMBERS  In  this  Index,  *  Dec.  A  Am«r.  Digs.  *  Kaportsr  Indexes  agrM 

Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


11S7 


FORFEITURES. 

See  Searches  and  Selznrea. 

Of  ftanchiae,  see  Oorporations,  H  615-621. 

Of  homestead,  see  Homestead,  I  154. 

Of  insurance,  see  Insurance,  H  18^  336-365, 

755. 
Of  railroad  tight  of  way,  see  Bailroads,  |  82. 

FORMER  ADJUDICATION. 

8m  Jadjpneat,  H  664-580^  668-74& 

FORMS  OF  ACTION. 

See  Action,  {|  25-35;    Ejectment;    Replevin; 
Trover  and  Oonversion. 

FRACTIONS. 

Of  day,  aee  Time,  I  11. 

FRANCHISES. 

Forfeitare,  see  Corporations,  H  615-621. 
Grant  by  municipality,  see  Municipal  Oorpora- 
tions, {  269. 

12.  In  the  absence  of  any  statute  on  the 
•abject,  a  written  acceptance  of  a  municipal 
franchise  or  privilege  held  unnecessary.— City 
of  Superior  v,  Douglas  County  Telephone  Co. 
(Wis.)  1023. 

FRAUD. 

See  False  Pretenses;    Fraudulent  Conveyances. 
A»  creating  constructive  trust,  see  Trusts,  {  95. 

By  partietiUur  clone*  of  pertont,  or  per*on$  in 

particular  relation*. 
See  Brokers,  i  65. 

Promoters  of  joint  stock   company,   see   Joint 
Stock  Companies,  |  6. 

In  particular  clataet  of  oonveyance»,  contract*, 

trantactioni,  or  proceeding*. 
See  Deeds,  f  70. 
[n  procuring  making  of  will,  see  Wills,  §g  164- 

Suretyship,  see  Principal  and  Surety,  i  161. 

X.  DECEPTION   OONSTITITTIIfO 

FBATJP,  AMD  UABIUTT 

THEKEFOB. 

f  10.  Misrepresentations  by  the  owner  of 
tax  deeds  as  to  their  legal  effect  held  repre- 
sentations as  to  a  fact.— Kathan  v.  Comstock 
(Wis.)   1044. 

i  13.  A  statement  to  be  fraudulent  must  not 
only  be  false,  but  the  party  making  it  must 
have  known  that  it  was  false,  and  have  made 
it  with  the  design  to  influence  action  by  an- 
other who  relied  thereon. — Security  Sav.  Bank 
of  Wellman  v.  Smith  (Iowa)  825. 

I  13.  Basis  of  doctrine  that  it  is  sufficient 
to  put  a  party  making  misrepresentations  in  the 
wrong  if  he  knew  or  ought  to  have  known  of 
tbeir  falsity  stated.— Katlian  t,  Comstock  (Wis.) 
1044. 

S23.  One  not  himself  knowing  the  facts  in- 
ved  may  reasonably  act  on  representations 
by  another  who  desires  to  enter  into  contract 
relations  with  him  as  to  conditions  not  pres- 
ently observable.— Kathan  v.  Comstock  (Wis.) 
1044. 

n.  ACTIONS. 

(B)   Parties  and   Pleadtna;. 

I  43.  A  complaint  in  an  action  for  fraud 
held  bad.— Doherty  v.  Wing  (Wis.)  716. 


(O  Bvldeaee. 

I  52.  In  an  action  for  false  representations 
by  which  plaintiff  was  induced  to  contract  ^o 
open  a  branch  office  for  the  sale  of  defend- 
ant's goods,  evidence  whether  plaintiff  became 
suspicious  of  defendant's  representations  that 
he  conducted  the  largest  exclusive  manufactory 
of  such  goods  was  admissible. — Ward  v.  Cook 
(Mich.)  785. 

{  52.  In  an  action  for  defendant's  false  rep- 
resentations that  he  intended  to  establish  a 
permanent  agency  made  to  induce  plaintiff  to 
contract  to  open  such  agency,  plaintifTs  testi- 
mony, describing  the  office  fitted  up  by  defend- 
ant, as  well  as  the  manner  in  which  the  g9pds 
were  packed,  was  admissible  to  show  the  breach 
alleged.— Ward  v.  Cook  (Mich.)  785. 

{  53.  In  an  action  for  damages  for  baving 
induced  plaintiff  to  execute  a  contract  by  whii^h 
he  was  to  conduct  a  branch  agency  for  the  sale 
of  defendant's  perfumery  products,  by  false 
representations  as  to  Quality  of  the  products, 
certain  letters  held  admissible  as  tending  to 
establish  plaintiff's  claim  of  false  representa- 
tions, as  well  as  certain  evidence  going  to  the 
good  faith  of  the  representations.- Ward  v. 
Cook   (Mich.)  785. 

{  54.  In  an  action  for  fraudulent  representa- 
tions by  which  plaintiff  was  induced  to  contract 
to  open  an  office  for  the  sale  of  defendanrs 
goods,  a  question  as  to  where  defendant  ob- 
tained the  written  contract  whieh  was  executed, 
and  which  referred  to  defendant  impersonally, 
held  admissible  as  tending  to  show  the  pur- 
pose to  misrepresent  the  character  and  impor- 
tance of  defendant's  business.— Ward  v.  Cook 
(Mich.)  785. 

§  54.  In  an  action  for  fraudulent  represents-^ 
tions  as  to  the  quality  of  defendant's  goods,  the 
permanency  of  the  business,  made  to  indjlce 
plaintiff  to  contract  to  open  up  a  branch  office 
for  the  sale  of  defendant's  perfumery,  testi- 
mony of  others  who  were  induced  to  make  simi- 
lar contracts  with  defendant  heid  admissible  on 
the  question  of  fraudulent  intent'.— Ward  ▼. 
Cook  (Mich.)  785. 

(B)  Trial,  Jodarmeat,  and  ReTlew. 

{  65.  In  an  action  for  fraudulent  representa- 
tions to  induce  plaintiff  to  enter  into  a  con- 
tract to  sell  defendant's  goods,  an  instruction 
that  certain  language  might  be  the  subject  of 
a  fraudulent  representation  held  proper. — Ward 
T.  Cook  (Mich.)  785. 

FRAUDS,  STATUTE  OF. 

XV.  BEPBE8EHTATION8. 

i  89.  Under  Comp.  Laws  1897,  f  9518. 
plaintiff  held  entitled  under  the  circumstances 
stated  to  recover  damages  caused  by  fraudulent 
representations  in  sale  of  corporate  stock.— 
Massey  v.  Luce  (Mich.)  514. 

VUX.   REQUISITES  ANP  SUl'l'ICIUNOY 
OF  W^RTTINO. 

Employment  of  broker,  see  Brokers,  {  14. 

t  116.  In  an  action  by  a  buyer  at  public 
sale  for  damages  from  refusal  of  the  seller  to 
deliver  the  purchase,  the  written  record  of  sale, 
so  far  as  it  related  to  the  purchase  in  ques- 
tion, was  admissible  as  a  memorandum  made 
by  the  clerk  acting  as  agent  for  both  parties.- - 
Kendall  v.  Boyer  (Iowa)  941. 

IX.  OFEBATION  AND  EFFECT  OF 
STATUTE. 

I  120.  Where  the  statute  of  frauds  of  an- 
other state  is  pleaded  in  Nebraska  to  defeat 
a  contract  of  the  former  state,  the  law  of  that 


rot  essM  tn  Deo.  Dif .  ft  Amer.  Dig*.  1907  to  date  ft  Indezei  see  same  topic  ft  section  /|)  NnMBBS 

Digitizedby  VjOOy  I' 


e 


1188 


122  NORTHWESTERN  REPORTER. 


state  controls. — Fruit  Dispatch  Ck>.  t.  Oilinsky 
(Nel).)  45. 

I  139.  Thongh,  under  Rev.  Iaws  1909,  i 
3487,  a  lease  for  more  than  one  year  cannot  be 
surrendered  by  parol,  the  landlord  would  be  es- 
topped to  enforce  the  lease,  if  be  acquiesced 
in  tlte  tenant's  conduct  and  resumed  posses- 
sion.—Millis  T.  Ellis  (Minn.)  1119. 

FRAUDULENT  CONVEYANCES. 

I.  TRAN8FEB8  AHD  TRAX8ACTION8 
XinrAI.ID. 

(I)  Retemtlon   of  Pasaesaton   or  Appareait 
Title  by  Grantor. 

S  147.  A  seller  of  horses  kept  in  a  pasture 
on  a  farm  held  not  to  retain  possession,  within 
Code  1897,  S  2006.— Leader  t.  Farmers'  Loan 
&  Trust  Co.  (Iowa>  833. 

(J)  Kaovrledire  auid  Inteat  of  Onutee. 

i  16S.  A  fraudulent  conveyance  held  not  sub- 
ject to  be  set  aside  where  the.  grantee  who  paid 
full  value  did  not  participate  in.  or  was  not  put 
on  notice  of,  the  fraudulent  intent — Mots  t. 
Sheets  (Iowa)  904. 

m.  BEMEDIES   OF   CREDITORS  AND 
PURCHASERS. 

(O)  RlarM   of  Aettom   to    Set    Aside   Trans- 
fer, and  Defenaea. 

f  239.  Pub.  Acts  1906,  p^  322,  No.  223,  heU 
not  to  exclude  equitable  interference  at  the 
suit  of  a  creditor  of  the  seller  where  such  in- 
terference is  warranted  under  general  rules. — 
Bixler  v.  Fry  (Mich.)  119. 

I  239.  A  creditor  held  not  entitled  to  sue 
in  equity,  because  of  a  sale  by  his  debtor  of  a 
stock  of  merchandise  in  bulk,  without  comply- 
ing with  Pub.  Acts  1905,  p.  322,  No.  223,  with- 
out showing  that  his  remedy  at  law  is  inade- 
quate.—B'.xler  V.  Fry  (Mich.)  119. 

i  241.  Only  a  judgment  creditor  can  attack 
a  sale  of  merchandise  in  bulk,  made  by  his 
debtor  without  complying  with  Pub.  Acts  1905, 
p.  322,  No.  223,  regulating  such  sales.— Bixler 
V.  Fry  (Mich.)  119. 

(B)  Parties  and  Prooeaa. 

f  26B.  In  a  suit  by  a  creditor  of  a  seller  of 
merchandise  in  bulk,  without  complying  with 
Pub.  Acts  1905,  p.  322,  No.  223,  reRulnting  such 
sales,  the  seller  is  a  necessary  party.— Bixler 
V.  Fry  (Mich.)  119. 

(G)  BTldence. 

i  282.  Plaintiff,  in  an  action  to  set  aside  a 
fraudulent  conveyance,  held  to  have  the  burden 
of  proof  as  to  defendant's  participation  in  the 
fraudulent  intent. — Mots  v.  Sheets  (Iowa)  904. 

i  301.  Evidence,  in  an  action  to  set  aside  a 
fraudulent  conveyance,  held  insufficient  to  sus- 
tain plaintiff's  burden  of  proof  as  to  participa- 
tion by  defendant  in  the  fraudulent  intent. — 
Mots  V.  Sheets  (Iowa)  904. 

FRIGHT. 

Frightening  animals  on  street,  see  Municipal 
Corporations,  §§  705.  706. 

Inability  of  street  railroad  company  for  injur- 
ies from  frightening  animals,  see  Street  Rail- 
roads, f  87. 

FUNERAL  EXPENSES. 

As  not  included  within  contract  for  conveyance 
of  realty  in  consideration  of  support  for  life, 
see  Vendor  and  Purchaser,  |  70. 


GAMING. 

Speculative  transactions  as  ultra  Tires  acta  of 
corporations,  see  Corporations,  i  382. 

GARNISHMENT. 

See  Attachment;    Execution. 
Presumption  as  to  time  of  issuance   o£  writ, 
see  Evidence,  i  82. 

n.  PERSONS    AND   PROPERTY    SUB- 
JECT TO   OARNISHBCENT. 

i  17.  Laws  1849,  p.  157.  No.  137,  {  25.  as 
amended  by  Pub.  Acts  1899,  p.  414,  No.  257, 
held  to  authorise  garnishee  proceedings  against 
municipal  corporations,  where  tile  principal  de- 
fendant was  an  officer  or  an  employ^  of  the 
municipality. — Donkley  t.  McCarthy  (Mich.) 
126. 

I  17.  Laws  1849,  p.  157,  No.  137,  |  26,  as 
amended  by  Pub.  Acts  1899,  p.  414,  No.  257, 
authorizing  garnishee  proceedings  against  mu- 
nicipal corporations  where  the  principal  de- 
fendant is  an  officer  or  employ^  of  the  muni- 
cipality, is  within  the  iegislative  power.— Dunk- 
ley  T.  McCarthy  (Mich.)  126. 

Vm.   CXl&IMS  BY  THIRD  PERSONS. 

I  203.  Service  of  summons  in  garnishment 
upon  a  debtor  of  a  solvent  attachment  defend- 
ant held  not  to  annul  a  bona  fide  assijrnment 
theretofore  made  by  defendant.— Cocking  t. 
Bank  of  Alma  (Neb.)  16. 

I  218.  In  garuishment,  burden  held  to  be  on 
the  intervener  to  establish  title  to  fund  in  ques- 
tion.—Brunke  y.  Gruben  (Neb.)  37. 

IX.   OPERATION  AND  EFFECT   OF 

GARNISHMENT,  JUDGMENT, 

OR  PAYMENT. 

Mandamus  to  compel  payment  ot  judgment,  see 
Mandamus,  {  l09. 

GIFTS. 

By  husband  to  wife,  see  Husband  and  Wife^ 

149%. 
Charitable  gifts,  see  Charities. 

I.  INTER  VIVOS. 

I  11.  It  is  immaterial  that  there  is  a  post- 
ponement of  the  time  of  enjoyment  of  a  gift, 
made  to  a  trustee  for  the  l>enetit  of  the  donee, 
until  after  the  donor's  death.— Abegg  v.  Hirst 
(Iowa)  838. 

I  16.  The  general  rule  is  that  where  some- 
thing remains  to  be  done  in  carrying  out  the 
donor's  intent,  the  irift  is  not  complete. — Abegg 
r.  Hirst  (Iowa)  838. 

{ '21.  Knowledge  of  a  gift  made  to  a  trustee, 
for  the  benefit  of  the  donee,  need  not  be  brought 
home  to  the  donee  during  the  lifetime  of  the 
donor.— Abegg  v.  Hirst  (Iowa)  838. 

f  23.  A  donor  may  have  himself  constituted 
trustee  of  the  property  for  the  donee.— Abegg 
V.  Hirst  (Iowa)  838. 

GLANDERS. 

Negligence  of  railroad  company  bringing  glan- 
dered  horse  into  state  as  proximate  cause  of 
injury  to  subsequent  pun:haset,  see  Negli- 
gence, I  66. 

GOOD  FAITH. 

Of  purchaser,  see  BUla  and  Notes,  U  335-363; 
Vendor  and  Purchaser,  H  224,  231. 


Topics,  divisions,  *  sactlon  (i)  NUMBERS  la  this  Indsz,  *  Dm.  *  Amsr.  Digs.  *  R«p«rt«r  laAssss  agrse 

Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1189 


GOOD  WILL 

Acts  constitntint;  breach  of  contract  f«r  sale 

of,  see  Contracte,  I  312. 
Admissibility  of  eTidence  in  action  for  breach 

of  contract  for  sale  of,  see  Contracts,  |  349. 
Instructions  in  action   for  breacii  of  contract 

for  sale  of,  see  Contracts,  |  353. 

{  6.  In  an  action  for  breach  of  a  contract 
.  b)r  which  defendant  agreed  to  discontinne  the 
practice  of  medicine  and  pharmacy  upon  selling 
Us  drug  store  to  plaintiff,  the  contract,  togeth- 
er with  other  facts  stated,  held  to  show  a  sale 
of  the  good  will  of  his  medical  practice  and 
pharmacy  business.— Brown  t.  Edsall  (S.  D.) 
658. 

GRAND  JURY. 

See  Indictment  and  Information. 

GRANTS. 

Of  public  lands,  see  Public  Lands. 

GUARANTY. 

See  Principal  and  Surety. 

GUARDIAN  AND  WARD. 

Guardianship  of  insane  persons,  gee  Insane  Per- 
sons, i!  32^2. 

I.  QVAIIDIANSHIP  IN   OENIiRAX.. 

i  p.  A  de  facto  guardian  will  be  held  sub- 
ject to  all  the  duties  and  liabilities  of  an  ordi- 
nary guardian.— Smith  v.  Cameron  (Mich.)  564. 

i  6.  The  rights  of  a  de  facto  guardian  will 
be  recognized  so  far  as  to  entitle  him  to  an 
equitable  credit  for  expenditures  which  were 
made  for  the  ward,  and  which  would  have 
been  allowed  had  the  gudrdian  been  a  legal 
one.— Smith  t.  Cameron  (Mich.)  564. 

HABEAS  CORPUS. 

I.  XATUKE  AND  GROUNDS  OF 
REMEDY. 

I  22.  A  judgment  nnder  Gen.  Laws  1905, 
p.  418,  c.  &5,  authorizing  committal  of  incor- 
rigible minors  to  the  State  Training  School, 
cannot  be  impeached  coliaterally  on  habeas  cor- 
pus.—State  T.  Whittier  (Minn.)  319. 

XX.  JDIUSDIOTION.   PBOOEEDINOS, 
AND  BEUEF. 

I  48.  Neither  a  county  court  nor  judge  there- 
of lield  to  have  authority  to  issue  nabeas  cor- 
pus, to  be  served  in  an  adjoining  county,  to 
determine  whether  an  infant's  custodian  shall 
be  deprived  of  its  custody.— Johnson  v.  Terry 
(Neb.)  084. 

g  90.  Where  a  county  court  has  in  excess  of 
its  jurisdiction  deprived  a  father  of  his  child's 
custody  on  habeas  corpus,  and  the  father  sues 
out  a  nabeas  corpus  in  the  district  court  to  re- 
cover possession,  and  respondents  plead  suffi- 
cient ucts  to  authorize  the  court,  under  Comp. 
St.  1909.  c.  20,  art.  2,  to  divest  the  father  of 
such  custody,  held  the  district  court's  duty  to 
make  such  an  order  as  is  for  the  child's  best 
interests. — Johnson  v.  Terry  (Neb.)  984. 

i  117.  Where,  in  a  habeas  corpus,  final 
judgment  has  been  entered  awarding  the  cus- 
tody of  a  child  to  its  father,  the  court,  in  a  sub- 
sequent proceeding  between  the  same  parties 
under  Comp.  St.  1909,  c.  20,  art.  2,  should 
only  consider  what  has  occurred  since  the  for- 
mer judgment.— Johnson  v.  Terry  (Neb.)  984. 


HARMLESS  ERROR. 

In  civil  acti<xis,  see  Appeal  and  Error,  H  1027- 
.  1068:  Wills,  §  384. 
Tn  criminal  prosecutions,  see  Homicide,  f  338. 

HAWKERS  AND  PEDDLERS. 

Regulations  denying  equal  protection  of  law,  see 

Constitutional  Law,  J  230. 
Reirulations  denying  privileges  or  immunities  of 

citizens,  see  Constitutional  Law,  H  206,  207. 

HEALTH. 

X.  BOARDS   OF   HEALTH   AND   SANI- 
TARY OFFICERS. 

f  16.  Under  Comp.  Laws  1897,  §  4424,  the 
allowance  of  an  account  by  the  local  board  of 
health  for  services  to  a  smallpox  patient,  etc., 
quarantined,  held  conclusive  upon  the  board  of 
supervisors  of  the  county  as  to  the  character  of 
the  disease  and  the  patient's  inability  to  pa,v, 
etc.,  and  equally  conclusive  upon  the  county  in 
which  the  patient  resides,  which  is  required  by 
statute  to  pay  such  expense  if  the  patient  can- 
not, but  such  liability  is  not  imposed  by  the 
action  of  the  board  of  supervisors  of  the  coun- 
ty furnishing  the  aid.— Board  of  Sup'rs  of  Are- 
nac County  V.  Board  of  Sup'rs  of  Iosco  County 
(Mich.)  629. 

g  16.  Under  Comp.  Laws  1897,  |  4424,  a 
county  quarantining  one  belonging  to  another 
county  IS  not  bound  to  exhaust  its  remedy 
against  the  relatives,  etc.,  of  such  person  if  he 
is  unable  to  pay  before  suing  the  county  to 
which  he  belongs  for  the  expenses  of  the  quar- 
antine.—Board  of  Sup'rs  of  Arenac  County  v. 
Board  of  Sup'rs  of  Iosco  County  (Mich.)  629. 

§  16.  Quarantine  expenditures  made  by  a 
county  under  Comp.  Laws  1897,  |  4424,  by 
which  the  county  of  the  patient's  residence  be- 
came liable  therefor,  became  vested  rights  which 
were  not  affected  by  Pub.  Acts  1903,  p.  6,  No. 
7.  relieving  the  county  of  such  liability,  enacted 
after  the  expenditures  were  made  but  before 
an  action  therefor  was  brought. — Board  of 
Sup'rs  of  Arenac  County  v.  Board  of  Sup'rs  of 
Iosco  County  (Mich.)  629. 

HEARING. 

In  probate  proceedings,  see  Wills,  if  816-332. 
On  appeal  or  writ  of  error,  see  Appeal  and 
Error,  iS  816,  832. 

HEIRS. 

See  Descent  and  Distribution. 

HIGH  SCHOOLS. 

Presumptions  as  to  validity  of  statute  relating 
to  tuition  by  non-resident  pupils,  see  Constitu- 
tional Lew,  {  48. 

Repeal  of  statute  relating  to,  see  Statutes,  { 
161. 

Subject  and  title  of  statutes,  see  Statutes,  i 
121. 

HIGHWAYS. 

See  Bridges:  Municipal  Corporations,  S|  703- 
706,  762-821 ;  Navigable  Waters,  If  1-16. 

Accidents  at  railroad  crossings,  see  Railroads, 
tS  827,  333. 

Appropriation  of  state  money  for  construction 
and  repair  of  highways  as  violation  of  con- 
stitutional prohibition  against  state  incoming 
a  party  to  internal  improvement,  see  State& 
{  119. 

Railroad  crossings,  see  Railroads,  g  96. 


Tor  caiM  In  Dec.  Dig.  ft  Amw.  Digs.  1907  to  date  *  Indexes  see  same  topio  ft  seetlon  (i)  NUUBIIB 

Digitized  by  VjOOQ  IC 


1190 


122  NORTHWESTERN  REPORTER. 


I.  EgTABMSHBCEKT.  ALTERATION, 
Ain>  DZSOOHTUI U ANOE. 

(B)  Establlaliment    by    Statnte    or    Steta- 

tory    Proceedlaars.  . 

t  30.  The  record  and  return  of  the  com- 
mlsgioner,  in  proceediD^  for  the  laying  out  of  a 
highway,  lield  to  sufficiently  show  that  proof  of 
service  of  notice  of  the  application  was  made, 
ai)d  was  before  the  conunlMioner  at  the  time 
his  action  was  taken.— Oorham  v.  Johnson 
(Midi.)  181. 

{  30.  Under  Comp.  Laws  1897,  §  4038, 
where  notice  of  an  application  for  the  laying 
out  of  a  highway  is  personally  served  on  the 
landowner,  service  of  notice  by  posting  is  nn- 
neceesary.^}orham  t.  Johnson  (Mich.)  181. 

(.30.  Under  Comp.  Laws  1897,  i  4038,  that 
a  notice  of  an  application  for  the  laying  out  of 
a  public  highway  omitted  the  word  ^'pnblic" 
held  not  fata).— Gorham  y.  Johnson  (Mich.)  181. 

S'42.  The  necessity  or  expediency  of  estal>- 
lishing  or  vacating  a  pnblic  road  held  committed 
conclusive^  to  the  county  board,  and  not  sub- 
ject to  judicial  review. — Stone  v.  Nebraska 
Ci^  (Neb.)  63. 

f  50.  Under  Comp.  Laws  1897,  {  4041,  in 
proceedings  for  the  establishment  of  a  highway, 
the.  map  and  survey,  though  not  signed  by  the 
commissioner,  held  to  be  treated  as  signed  with- 
in the  meaning  of  the  statute,  being  made  part 
of  'the  commissioner's  signed  return  and  filed 
therewith. — Gorham  v.  Johnson  (Mich.)  181. 

{  SO.  There  is  no  statute  requiring  that,  in 
proceedings  for  the  establishment  of  a  high- 
way, minutes  of  what  was  said  or  reports  of 
the  discussion  at  the  meeting  prior  to  the  com- 
missioner's proceeding  to  view  the  premises 
should  be  made.— Gorham  v.  Johnson  (Mich.) 
181. 

TV.  TAXES,  ASSESSMENTS,  Ain> 
WOBK  ON  HIGHWATS. 

{  122.  Pub.  Acts  1907,  p.  41,  No.  37.  i  3. 
amending  Comp.  Laws  1897,  §  4169,  held  re- 
ppolfd  by  implication  by  Acts  1907,  p.  125,  No. 
108,  repealing  Comp.  Laws  1897,  »  4072-4103. 
—  lieimink  t.  Strabbing  (Mich.)  1^. 

V.  BE01TI.ATI0N   ANB   VSE  FOB 
TBAVEXb 

(C)  Injarles  from  Defects  or  ObstrvetloBS. 

Requests  for  special  findings  in  action  for  in- 
juries, see  Trial,  i  350. 

S  192.  The  right  of  town  authorities  to  place 
materials  in  the  highways  stated. — Berg  v. 
Town  of  Auburn  (Wis.)  1041. 

S  208.  In  determining  what  evidence  of  i>ar- 
ticular  injuries  is  admissible  in  an  action 
ngainst  a  town  for  personal  injuries,  the  no- 
tice of  injury  and  claim  for  damages  filed  be- 
fore the  town  board  for  audit  should  be  con- 
strued with  the  complaint  to  which  they  are 
attached.— Dralle  v.  Town  of  Reedsburg  (Wis.) 
771. 

i  211.  In  an  action  for  injury  resulting 
from  the  fright  of  a  horse  at  an  iron  pipe  in 
the  highway,  placed  there  by_  the  town  au- 
thorities, evidence  held  to  sustain  i  finding  that 
the  authorities  were  negligent. — Berg  v.  Town 
of  Auburn  (Wis.)  1041. 

f  214.  In  an  action  for  personal  injuries 
r-aused  by  a  defect  in  a  highway,  an  instruction 
that,  in  determining  whether  the  highway  was 
defective,  the  jury  should  consider  the  ex- 
penditure necessary  to  remedy  the  defect  and 
wjbether  it  would  be  so  excessive  as  to  make  it 
iAipracticable  to  do  so,  held  properly  refused  as 
inapplicable.- Dralle  v.  Town  of  Reedsburg 
(Wh.)  771. 


HOLDING  OVER. 

By  ofDcer,  see  Officers,  H  62,  83. 

HOLIDAYS. 

See  Sunday. 

HOME  FOR  THE  FRIENDLESS. 

Appropriations  in  aid  of,  see  States,  |  130- 

HOMESTEAD. 

m.   BIGHTS  OF  8UBV1V1NO  HUB- 
BAND,  WIFE,   CHIIiDBEN, 
OB  HBIBS. 

I  ISl.  In  ejectment  aninat  widoi«r  of  execu- 
tory vendee  defendant  AeM  the  equitable  owner 
of  a  homestead  in  the  land.— Harley  ▼.  Harley 
(Wis.)  761. 

i  161.  Homestead  right  descending  to  a  wid- 
ow and  ehildren  attaches  though  tne  husband 
had  only  an  equitable  title. — Harley  v.  Harley 
(Wis.)  761. 

IV.  ABAWPONMENT,  WATVEB,   OB 
FOBFEIT  UBE. 

I  154.  Neither  a  husband  nor  a  wife  can 
abandon  the  family  homestead  and  thereafter 
convey  the  same  to  the  exclusion  of  the  liome- 
stead  right  of  an  insane  spouse. — ^In  re  Man- 
ning's Estate  (Neb.)  711 ;  Bonacnm  t.  fifanning. 
Id. 

HOMICIDE. 

n.  IfflTBDEB. 

I  18.  A  homicide  in  the  perpetration  of  a 
robbery  ia  murder  in  the  first  degree. — Pom- 
phrey  v.  State  (Neb.)  19. 

m.  BEANSLAVOHTEB. 

I  31.    Manslaughter  defined.— Boche  t.  State 

(Net  •  — 


Ceb.)  72. 


VH.  EVIDENCE. 


(B)  AdaalsalblUtr  la  GeBersO. 

I  169.  EMdence  of  the  drcnmstauces  pre- 
ceding the  killing  of  an  officer  held  admissible 
in  a  prosecution  for  his  murder. — ^People  v. 
Blake  (Mich.)  113. 

(  169.  In  a  prosecution  of  accused  for  pois- 
oning his  wife,  who  lived  with  her  son  upon 
an  adjoining  farm,  by  placing  arsenic  in  oat- 
meal which  she  ate,  evidence  held  admissible, 
that  a  man  was  seen  near  the  iine  of  the  two 
farms  on  the  day  before  the  killing  during  tha 
absence  of  decedent  and  her  son  from  home, 
though  be  waa  not  identified  with  accuaed. — 
State  ▼.  Kammel  (S.  D.)  420. 

(O)  Dylnar  Deolaratloma. 

Requests  for  instructions,  see  Oiminal  Law,  I 

Vm.  TBIAXb 

'  (D)  Verdlot. 

i  813.  A  verdict  finding  defendant  guilty  as 
charged  in  tlie  information  and  fixing  nis  pun- 
ishment at  death  heid  not  objectionable  for  nn-' 
cerUinty.— State  v.  Hayes  (S.  D.)  652. 

X.  AFFEAI.  AND  EBBOB. 

{  338.  In  a  prosecution  for  killing  her  hus- 
band, where  accused  claimed  that  the  quarrel 
out  of  which  the  killing  arose  was  caused  by 
her  refusing  to  receive  a  man,  error  in  admit- 


Toi>lea,  divisions,  ft  section  ({)  NtJMBBRS  in  tUs  Indsx,  ft  Deo.  ft  Amer.  Digs,  ft  Reporter  Indessa  acres 


Digitized  by  LjOOQ  l€ 


INDEX-DIGEST. 


11191 


ting  erldence  that  accused  was  a  prosUtnte  be- 
fore her  marriage  waa  prejudiclaL — ^People  v. 
ConneUy  (Mich.)  80. 

ZX.  8EHTEX0E  AXD  PTTXISKaOBirr. 

Neceesity  ot  impoaing  indeterminate  sentenoe  on 
oonvictioa  of  murder  in  first  degree,  see  Crim- 
inal Law,  I  12ie. 

HUSBAND  AND  WIFE. 

See  Divorce ;  Dower. 

Rights  of  survivor,  see  Hlxecuton  and  Admin- 
istrators, H  17&-186;  Homestead,  f  151. 

z.  mrruAi.  riqhtb.  ppties,  amd 

UABUJTIES. 

i  6.  The  sole  deed  of  a  husband,  conveTiag 
the  homestead  and  other  land,  held  a  good  con- 
veyance as  to  the  land. — Wilson  t.  Wilson 
(Neb.)  856. 

I  25.  Eividence  Xeld  not  to  show  a  sale  to  a 
wne  through  her  husband  as  agent — Gero  v. 
Abbott  (Mich.)  307. 

m.  OOirVEYAlfOEa,  001>TBAOT8,  awp 

OTHiSB  TBAWSAOTIONB  BETWEEW 

HUSBAin>  AND  WIFE. 

I  49%.  An  assignment  to  a  hosband  and 
wife  jointly  of  a  note  and  mortgage  purchased 
by  the  husband  with  his  own  money  held  to  con- 
stitnte  a  gift  to  the  wife  of  a  one-half  inter- 
est—Abegg  V.  Hirst  (Iowa)  83& 

V.  WIFE'S  SEPARATE  ESTATE. 
(B)  Rlvhta  «nd  Uabllltlea  of  Husband. 

Insurable  Interest,  see  Insurance,  {  115. 

X.  ENTionra  akd  axienatiho. 

i  330.  Under  St  1888,  §  2345,  as  amended 
by  Laws  1905,  p.  35,  c.  17,  the  husband  is  not 
a  proper  party  to  an  action  by  a  wife  for  the 
alienation  of  her  husband's  affections.— White 
V.  White  (WiB.)  1051. 

{  833.  In  determining  whether  parents  mali- 
ciously conspired  to  alienate  their  son's  affec- 
tions for  his  wife,  the  evidence  should  be  con- 
sidered in  view  of  the  rights  and  obligations  of 
parents  respecting  their  son's  welfare  and  hap- 
piness.—White  V.   White  (Wis.)  1051. 

I  333.  In  an  action  by  a  wife  for  alienation 
of  her  hushand's  affections,  plaintiff  may  testi- 
fy to  declarations  by  her  huslMind  as  to  offers 
to  him  by  defendants  to  induce  him  to  abandon 
her.— White  v.  White  (Wis.)   1051. 

i  334.  Punitory  damages  may  be  awarded 
for  the  alienation  of  a  husband's  affections  for 
his  wife.— White  v.  White  (Wis.)  1051. 

{  834.  An  award  of  $5,000  as  compensation 
and  $1,5(X)  as  punitory  damages  for  alienation 
of  a  husband's  affections  for  nis  wife  held  not 
excessive.— White  v.  White  (Wis.)  1051. 

HYPOTHETICAL  QUESTIONS. 

To  expert  witness,  see  Ejvidence,  |  663. 

To  expert  witness,  review  of  rulings  as  depend- 
ent on  objections  in  lower  court,  see  Appeal 
and  Error,  |  231. 

IMPAIRING  OBLIGATION  OF  CON- 
TRACT. 

See  OmstitaUonal   Law,  U  121,  126w 

IMPEACHMENT. 

Of  witness,  see  Witnesses,  H  317-398. 


IMPLIED  CONTRACTS. 

See  Uw  and  Oocnpatioo;    Work  and  Labor. 

IMPRISONMENT. 

See  Arrest;    False  Imprisonment 
Escape  of  prisoner,  see  Escape. 
Habeas  corpus,  see  Habeas  Corpus. 

IMPROVEMENTS. 

Liens,  see  Mechanics'  Liens. 

On  premises  demised,  see  Landlord  and  Tenant, 
f  162. 

Public  improvements,  see  Municipal  Corpora- 
tions, U  289-578;   States,  S  83. 

INADEQUATE  DAMAGES. 

See  Damages. 

INADVERTENCE. 

Oround  for  new  trial,  see  New  Trial,  {  91. 

INCOMPETENT  PERSONS. 

See  Insane  Persons. 

INCORPORATION. 

See  Ck>rporations,  {{  14,  80. 

INCUMBRANCES. 

Rights  and  liabilities  of  tenants  in  common,  see 
Tenancy  in  Omnmon,  i  30. 

INDEMNITY. 

See  Principal  and  Surety. 

INDETERMINATE  SENTENCES. 

See  Criminal  Law,  }  1206. 

Validity  of  laws  relating  to,  as  violation  of  con- 
stitutional provision  granting  pardoning  pow- 
er to  Governor,  see  Pardon,  J  2. 

INDICTMENT  AND  INFORMATION. 

Againit  parh'oulor  cUute*  of  pertont. 
Juvenile  delinquents,  see  Infants,  %  16. 
Officer  of  trust  company,  see  Banlcs  and  Bank- 
ing, I  314. 

For  parficMlor  offenae*. 

Contempt  proceedings  for  Ti<^tion  of  injunction 
against  sale  of  liquors,  see  Intoxicating  Liq- 
uors, I  279. 

Misappropriation  <^  funds  by  officer  of  trust 
company,  see  Banln  and  Banking,  {  314. 

VZ.  JOINOEB  OF  PARTIES,  OFFENSES, 

AND   OOUNTS.  DUPUOITT, 

AND  ELECTION. 

S  127.  In  a  prosecntiozi,  under  Laws  1903,  p. 
363,  c.  234,  subsec  2,  S  17,  of  a  bank  cashier  for 
making  false  entries  in  the  bank's  l>ooks,  etc., 
certain  counts  held  properly  joined  in  one  in- 
formation, so  that  the  district  attorney  was  not 
Iwund  to  elect  on  which  count  he  would  prose- 
cute.—Ruth  V.  State  (Wis.)  733. 

I  132.  The  state  will  not  be  required  to 
elect  on  which  count  it  will  rely,  where  an  in- 
formation contains  two  counts  charging  but 
one  offense. — Stevens  v.  State  (Neb.)  58. 

J  132.  The  matter  of  requiring  prosecuting 
officers  in  criminal  cases  to  elect  on  what  counts 
of  an  information  they  will  prosecute  is  verr 
much  in  the  discretion  of  the  trial  court. — Run 
V.  State  (Wis.)  733. 


ror  cases  in  Deo.  Dig.  Jk  Amer.  Digs.  1907  to  date  *  Indexes  tee  lame  topic  ft  secttoo  (])  NUHBBR 


Digitized  by  VjOOQ  l€ 


1192 


122  KORTHWE8TERN  REPORTEB. 


INDORSEMENT. 

Of  bill  of  exchange  or  promissory  note,  S«« 
Bills  and  NoteBTlS  335^363. 

INFANTS. 

See  Gnardian  and  Ward. 

Application  of  ^neral  statutes  relating  to  in- 
fancy as  tolling  limitations,  see  Limitation  of 
Actions,  I  72. 

Assumption  of  risks  by  youthfol  employ^,  see 
Master  and  Servant,  g  218. 

Cnstody  and  support  on  divorce  of  parents, 
see  Divorce,  §S  303,  309. 

Habeas  corpus  to  determine  validity  of  judg- 
ment committing  to  State  Training  School, 
see  Habeas  Corpus,  §  22. 

Sales  of  liquors  to,  see  Intoxicating  Liquors, 
{  159. 

n.   OVSTODT  AND  PROTEOTIOH. 

i  16.  Proceedings  under  Pub.  Acts  1903.  p. 
348,  No.  221.  held  to  be  irregular,  and  that  the 
judgment  and  the  sentence  should  be  vacated. — 
People  V.  Turja  (Mich.)  177. 

i  16.  Pub.  Acts  1903,  p.  348,  No.  221,  pro- 
viding for  the  arrest  of  children  who  have  com- 
mitted offenses  not  punishable  by  law,  and  their 
commitment  to  the  reform  school,  must  be 
construed  as  favorably  as  possible  in  the  inter- 
est ,of  the  children.— People  v.  Turja  (Mich.)  177. 

jt  19.  A  father  who  abandoned  his  children 
held'  not  entitled  to  complain  of  the  insufficien- 
cy of  the  evidence  in  proceedings  resulting  in 
the  commitment  of  the  children  to  a  childrens' 
home,  as  authorized  by  Code  Snpp.  1907,  | 
32«0-b  et  seq.— In  re  East  (Iowa)  153. 

8  19.  Jurisdiction  fceM  acquired  by  the  court, 
in  proceedings  under  Code  Supp.  1907,  §  3260-b 
et  seq,,  to  commit  neglected  children  to  a 
(hildrens'  home,  though  the  father  was  not 
served  with  the  complaint  and  order  of  hearing. 
—In  re  Bast  (Iowa)  163. 

i  19.  In  proceedings  under  Code  Supp.  1007, 
I  3260-d  et  seq.,  to  commit  neglected  children 
to  a  childrens'  nome,  the  children  need  not  be 
served  with  notice  of  hearing. — In  re  Bast 
(Iowa)  153. 

i  19.  Under  Code  Snpp.  1907,  <  3260-e,  a 
complaint  in  proceedings  to  commit  neglected 
children  to  a  childrens'  home  held  snfBcient  to 
give  the  court  jurisdiction.— In  re  East  (Iowa) 
153. 

I  19.  In  proceedings  under  Code  Supp.  1907, 
{  3260-b,  to  commit  to  a  childrens'  home  neglect- 
ed children,  the  fact  that  the  complaint  and  the 
return  of  service  of  notice  of  hearing  were  not 
marked  "filed"  until  after  the  order  of  com- 
mitment was  made  held  not  to  affect  the  ju- 
risdiction of  the  court. — In  re  East  (Iowa)  lo3. 

INFERENCES. 

From  evidence  as  question  of  law  or  fact,  see 
Trial,  {  142. 

INFORMATION. 

Criminal  accusation,  see  Indictment  and  In- 
formation. 

INHERITANCE. 

See  Descent  and  Distribution. 

INJUNCTION. 

Abatement  of  creditors'  suit  on  death  of  de- 
fendant as  affected  by  issuance  of  injunc- 
tion, see  Abatement  and  Revival,  {  68. 

MandamuR  to  compel  granting  of,  see  Manda- 
mus, I  37. 


Incidental  to  particular  remediet  or  pro- 
ecedingt. 
See  Creditors'  Suit,  {  32. 

Relief  againtt  particular  act*  or  proceedingt. 

Assessment  of  benefits,  see  Municipal  Corpora- 
tions, }  614. 

Condemnation  proceedings,  see  Eminent  Do- 
main, ft  273-276. 

Construction  of  drain,  see  Drains,  |  40. 

Exercise  of  power  of  sale  in  mortgage,  see  Mort- 
gages, S  338. 

Makmg  public  improvement,  see  Municipal  Cor- 

Wiorations,  |  323. 
rongful  endforcement  of  tax,  see  Taxation,  } 
608. 
Wrongful  flowage  of  land,  see  Waters  and  Wa- 
ter Courses,  |  177. 
Violation  of  liquor  laws,  see  Intoxicating  Liq- 
uors, §1  263-J»C>. 

m.  ACTIONS   FOR  INJUITCTIONS. 

I  114.  Where,  by  contract  with  the  owners, 
a  person  has  the  exclusive  right  to  exhibit  mov- 
ing pictures  in  a  town  of  a  certain  event,  he 
has  the  right  to  sue  to  restrain  their  exhibition 
in  the  same  town  by  others  having  no  rights 
to  do  so.— Oilligham  v.  Ray  (Mich.)  111. 

IV.  PBEI.IMIWABY  AWP  INTEBI.O0U. 
TOBT  IKJimCTIOITS. 

Against  liquor  nuisance,  see  Intoxicating  Liq- 
uors, {  273. 

(A)  GroandB  and  Proeeedlnv*  to  Procnre. 

{  136.  The  Allowance  of  a  preliminary  in- 
junction is  within  the  discretion  of  the  trial 
judge.— Wyoming  Tp.  v.  Stuart  (Mich.)  214. 

{  148.  Comp.  Laws,  {  607,  held  not  to  re- 
quire a  bond,  prior  to  the  issuance  of  an  in- 
junction, to  enjoin  an  action  to  recover  lands 
before  verdict. — Skutt  v.  Ionia  Circuit  Judge 
(Mich.)  364. 

VII.  VIOI.ATION  AND   PUNIBHICENT. 

Judicial  notice  of  decree  violated,  see  Evi- 
dence, {  43. 

IN  PAIS. 

EJstoppel,  see  Estoppel,  U  63-93. 

IN  PERSONAM. 

Effect  of  attachment  proceedings  against  for- 
eign corporations,  see  Corporations,  |  670. 

INQUISITHON. 

Of  lunacy,  see  Insane  Persons,  %%  7-20. 

INSANE  PERSONS. 

Opinion  evidence  as  to  mental  capacity,  see  Ev- 
idence, i  571. 

Presumptions  as  to  sanity  in  general,  see  ESv- 
idence,  {  63. 

Testamentary  capacity,  see  Wills,  |  81. 

I.  DISABIUTIES   IN   OENEBAXb 

I  2.  In  a  proceeding  for  the  appointment  of 
a  guardian  for  an  alleged  insane  person,  evi- 
dence, properly  admitteo,  held  not  to  show  in- 
sanity.—In  re  PhilUpa  (Mich.)  654. 

S  2.  In  proceedings  for  appointment  of  gnard- 
ian for  person  formerly  declared  insane,  evi- 
dence of  proceedings  for  restoration  under 
Comp.  Laws  1897,  t  1942,  and  discontinuance 
thereof,  held  inadmissible.— In  re  Phillips 
(Mich.)  554. 

(  2.  No  admission  of  insanity  can  fix  the 
status  of  unsound  mind  in  the  person  making 
the   admisRion;    the   law  prescribing  the  only 


Topics,  divisions,  *  section  (i)  NUMBERS  In  thU  Index,  &  Dec.  ft  Amer.  Digs.  *  Reportw  InOsxas 


Digitized  by  LjOOQ  l€ 


INDEX-DIGEST. 


1193 


way  a  determinatiou  of  insanity   may  be  de- 
clared.—In  re  Pliillipg  (Hich.)  554. 

n.  INQUISITIONS. 

{  7.  Proceedings  for  an  adjudication  of  In- 
sanity against  an  individual  require  the  strict- 
est compliance  with  statutory  requirements; 
the  determination  affecting  his  rights  to  the 
enjoyment  of  life,  liberty,  and  property.— In 
re  Phillips  (Mich.)  554. 

I  7.  The  proceeding  leading  to  an  adjudi- 
cation of  insanity  is  not  an  adversary  proceed- 
ing, but  one  in  the  interest  of  the  public  to 
protect  deficient  citizens,  and  hence  is  not  a 
proceeding  where  any  act  or  admission  of  re- 
spondent could  prejudice  an  adverse  party.— In 
re  Phillips  (Mich.)  554. 

i  19.  Admission  of  'an  order  of  adjudication 
of  insanity  and  commitment  in  a  proceeding  for 
appointment  of  a  guardian  of  the  person  and 
property  of  an  alleged  lunatic  held  error;  the 
order  being  void  for  want  of  jurisdiction. — In 
re  Phillips  (Mich.)  564. 

I  26.  Admission  of  an  order  of  adjudication 
of  insanity  and  commitment  in  a  proceeding  for 
appointment  of  a  guardian  of  the  person  and 
property  of  an  alleged  lunatic  held  error;  the 
order  being  void  for  want  of  jurisdiction. — In 
re  Phillips  (Mich.)  564. 

m.   OVAROIANSHIF. 

I  82.  The  probate  court  has  jurisdiction  to 
appoint  a  guardian  of  the  property  of  a  non- 
resident lunatic— Wallace  v.  Tinney  (Iowa)  936. 

i  33.  Under  Code,  {|  225,  3202,  an  Inde- 
pendent decree  of  Incompetency  held  not  a  pre- 
requisite to  the  appointment  of  a  guardian  of 
the  property  of  a  nonresident  lunatic. — Wallace 
v.  Tinney  (Iowa)  936. 

S  33.  Neither  the  statute  nor  any  rule  of 
constitutional  law  requires  the  giving  of  no- 
tice of  an  implication  for  the  appointment  of  a 
guardian  ol  the  property  of  a  nonresident, 
though  such  notice  is  necessary  to  the  appoint- 
ment of  a  guardian  for  the  person. — Wallace  t. 
Tinney  (Iowa)  936. 

{  36.  The  probate  court  having  jurisdiction 
TO  snpoint  a  guardian  of  the  property  of  a  non- 
resident lunatic,  the  sufficiency  of  the  show- 
ing cannot  be  raised  by  collateral  attack.^ 
Wallace  v.  Tinney  (Iowa)  936. 

S  41.  A  de  facto  guardian  held  entitled  to 
certain  credits  on  her  accounting.— Smith  t. 
Cameron  (Mich.)  664. 

f  42.  An  alleged  incompetent  may  require  a 
de  facto  guardian  to  account,  without  admitting 
the  regularity  of  the  appointment,  and  may 
in  the  same  proceeding  ask  for  the  revocation 
of  the  letters  of  guardianship  because  of  ir- 
regularities in  the  proceedings  in  which  the 
guardian  was  appointed.-^In  re  Cameron's  Es- 
tate (Mich.)  278. 

V.  PBOFEBTT    AND    CONVZiTANCES. 

i  65.  De  facto  guardian  and  husband  while 
working  for  ward  on  his  farm  held  entitled 
to  board  and  lodging  at  his  expense,  but  not 
entitled  to  board  of  their  children  living  with 
them,  and  not  so  employed.— Smith  v.  Camer- 
on (Mich.)  564. 

S  65.  A  de  facto  guardian  held  entitled  to 
certain  credits  on  her  accosnting.— Smith  v. 
Cameron  (Mich.)  564. 

I  65.  A  de  facto  guardian  lield  entitled  to 
•  credit  for  insurance  money  collected  and 
expended  in  rebuilding  the  destroyed  build- 
ing on  the  ward's  premises.- Smith  v.  Cameron 
(Mich.)  564. 


IX.  ACTIONS. 

f  92.  The  trial  court  held  justified  in  sub- 
stituting a  guardian  having  letters  of  appoint- 
ment from  the  probate  court  in  place  of  her 
ward  as  a  party  to  an  action. — Wallace  v.  Tin- 
ney (Iowa)  936. 

t  94.  It  is  the  duty  of  a  guardian  ad  litem  of 
an  insane  defendant  to  submit  to  the  court  all 
relevant  defenses,  but  the  courts  will  protect 
an  incompetent  irrespective  of  the  guardian's 
conduct.— In  re  Manniue's  Estate  (Neb.)  711 ; 
Bonacum  v.  Manning,  Id. 

I  97.  Allegations  of  a  i>etition  by  a  general 
guardian  of  an  insane  person  to  vacatp  a  de- 
cree against  his  ward  on  the  ground  of  fraud 
held  sufficient  to  show  the  guardian's  capacity 
to  sue.— Wirth  v.  Weigand  (Neb.)  714. 

I  1(X).  Allegations  of  a  petition  by  a  guard- 
ian of  an  insane  wife  to  open  a  decree  agains* 
her  obtained  by  fraud  of  ner  husband  held  to 
state  a  cause  of  action.— Wirth  v.  Weigand 
(Neb.)  714. 

{  100.  Where  a  judgment  or  decree  has  been 
obtained  against  an  insane  defendant  by  per- 
jury or  fraud  of  the  prevailing  party,  such  de- 
fendant may  at  any  time  open  such  decree  in 
equity  and  defend,  and  need  not  wait  until  his 
incompetency  has  been  removed. — Wirth  v.  Wei- 
gand (Neb.)  714. 

INSOLVENCY. 

See  Assignments  for  Benefit  of  Creditors ; 
Bankruptcy. 

INSPECTION. 

Duty  of  master  to  insjiect  tools  used  by  serv- 
ant, see  Master  and  Servant,  g  124. 

Liability  of  master  for  assault  by  servant  on  in- 
spector appointed  to  examine  work  on  behalf 
of  third  person,  see  Master  and  Servant,  ( 
302. 

Of  writings,  see  Discovery,  {{  88,  97. 

INSTRUCTIONS. 

Duty  of  master  to  instruct  servant,  see  Master 

and  Servant,  i  157. 
In  civil  actions,  see  Trial,  S§  186-296. 
In  criminal  prosecutions,  see  Criminal  Law,  fi 

784-«22. 

INSURANCE. 

m.  INSURANCE  AGENTS  AND 
BBOKEBS. 

(A)  Aareaer  (or  Insurer. 

I  85.  Where  defendant  discharged  plaintiff 
as  district  insurance  agent,  so  as  to  destroy  tlie 
business  plaintiff  had  built  up,  defendant  was 
not  entitled  to  set  off  what  plaintiff  had  earn- 
ed by  other  employment  after  defendant's 
breach,  against  damages  for  future  profits.— 
Richey  v.  Union  Cent.  Ufe  Ins.  Co.  (Wis.) 
1030. 

{  85.  In  an  action  for  breach  of  contract, 
plaintiff  held  entitled  to  recover  for  loss  of  fu- 
ture profits  which  he  would  have  made  had  the 
contract  not  been  terminated.— Richey  v.  Union 
Cent.  Life  Ins.  Co.  (Wis.)  1030. 

S  95.  An  insurance  company  is  chargeable 
with  the  knowledge  of  its  soliciting  agent  at  the 
time  he  transmits  to  it  an  application  for  in- 
surance.—Wilson  v.  Anchor  B^re  Ins.  Co.  (Iowa) 
167. 

IV.  INSVRABIiE  INTEBEST. 

I  114.  A  person  attempting  to  enforce  an 
insurance  contract  must  show  an  interest  in 


For  CUM  In  Dec  Dtg.  A  Amcr.  Digs.  1907  to  date  tc  Indexes  see  same  topic  A  section  (i)  NUHBBR 

Digitized  by  LjOOQ  l€ 


1194 


122  NORTHWESTERN  REPORTER. 


the    subject-matter.— Basaett    t.    Farmen'    A 
Merchaats'  Ins.  Oo.  (Neb.)  703. 

i  lis.  In  1906,  a  husband  by  Tirtna  of  tha 
marital  relation  alone  had  no  insurable  inter- 
est in  his  wife's  real  estate. — Bassett  ▼.  Farm- 
ers' &  Merchants'  Ins.  Co.  (Neb.)  70S. 

V.  THE  CONTRACT  IN  OENEBAZk 

(A)  HAtnre,  Reqnialtea,  And  Valldltr* 

S  143.  An  insurer  held  not  entitled  to  a  re- 
formation of  a  policy  on  the  ground  of  mutual 
mistake. — ^Wilson  t.  Anchor  Fire  Ins.  Co. 
(Iowa)  15T. 

(B)  Oonatmetlon  snd  Operation. 

{  146.  A  claose  in  an  accident  i>olicy  limit- 
ing the  time  for  the  giving  of  notice  and  the 
famishing  of  proof  of  an  accident  covered  by 
the  poUcT  must  be  strictly  construed  against 
insurer.— Breeden  t.  ^tna  Life  Ins.  Co.  (S.  D.) 
S4& 

i  146.  In  case  of  ambiguity,  the  words  of  an 
Insurance  policy  are  to  be  read  most  favorably 
to  the  insured.— Bakalars  v.  Continental  Casual- 
ty Co.  (Wis.)  721. 

I  147.  Where  parties  to  an  insurance  con- 
tract are  in  different  jurisdictions,  the  place 
where  the  last  act  is  done  held  the  place  of 
contract.— McElroy  t.  Metropolitan  Life  Ins. 
Co.  (Neb.)  27. 

S  147.  Insurance  business  transacted  in  the 
state  by  a  foreign  insurance  company  held  not 
subject  to  a  provision  of  the  law  of  such  for- 
eign state. — McEIroy  r.  Metropolitan  Life  Ins. 
Co.  (Neb.)  27. 

vx.  pbebhums.  dites,  and  assess- 

MENT8. 

I  184.  An  executed  agreement  for  rebating  a 
I>olicy  premium  contrary  to  the  statute  ren- 
ders the  rebater  liable  to  the  statutory  pen- 
alto,  but  does  not  affect  policy.— McNaughton 
V.  Des  Moines  Life  Ins.  Co.  (WU.)  764. 

I  184.  Evidence  held  not  sufficient  to  show 
that  the  purpose  of  an  agency  contract  given 
to  a  iMlicy  holder  was  to  circumvent  the  statu- 
tory prohibition  against  rebating  policy  pre- 
miums.—McNaughton  V.  Des  Moines  Life  Ins. 
Co.   (Wis.)  764. 

{  184.  An  ostensible  agency  contract  with  a 
policy  holder  for  the  purjMse,  in  fact,  of  rebat- 
mg  the  cost  of  insurance  is  unenforceable. — Mc- 
Naughton V.  Des  Moines  Life  Ins.  Co.  (Wis.)- 
764. 

t  184.  A  premium  notice  showing  applica- 
tion in  favor  of  insured  of  his  apportionment 
under  an  agency  agreement  given  when  the  pol- 
icy was  issued  constituted  an  actual  payment 
of  the  agency  apportionment  fully  executing  the 
rebating  contract,  if  such. — McNaughton  v. 
Des  Moines  Life  Ins.  Co.  (Wis.)  764. 

ix.  avoidance  of  pouot  fob 
busbepbesentation.  fbavd. 
ob  bbeaoh  of  wabbantt  ob 
condition. 

(B)  Hattera  Relating  to  Property  or  la- 
tereat  Inavred. 

I  283.  Facts  held  to  show  that  an  insurance 
company  took  the  risk  of  undisclosed  taxes  on 
the  property  when  it  issued  the  policy. — Ken- 
nedy V.  London  &  Lancashire  Fire  Ins.  Co. 
(Mich.)  134. 

§  285.  Statement  of  employer  to  bonding 
company  held  in  the  nature  of  a  warranty,  and, 
if  false,  to  defeat  recovery. — Sunderland  Roof- 
ing &  Supply  Co.  V.  United  States  FideUty  & 
Guaranty  Co.  (Neb.)  25. 


Z.  FOBFEXTUBE  OF  POUOT  FOB 
BBEAOH  OF  PB0MI88OBT  WAB- 
BANTT, COVENANT,  OB  CONDI- 
TION SUBSEQUENT. 

(B)  Hattera  Helatlaac  to   Propertr  or  IB- 
tereat  inaared. 

i  336.  An  insurance  poUcy  held  invalidated, 
in  the  absence  of  insurer's  consent  or  waiver. 
-Wilson  V.  Anchor  Fire  Ins.  Co,  (Iowa)  157. 

i  336.  A  fire  policy  held  rendered  void  by 
Insured  procuring  an  additional  policy  anthor- 
iaing  recovery  on  the  additional  policy. — ^Wilson 
V.  Anchor  Fire  Ins.  Co.  (Iowa)  157. 

(0)  Mattera  Relatlns  to  Peraon  laanred. 

f  339.  Accident  policy  requiring  notice  of 
change  in  business  held  to  mean  the  substi- 
tution of  one  business  tta  another  as  the  usual 
business  of  insured,  and  not  to  refer  to  a 
casual  resort  to  other  activities. — Taylor  v. 
Illinois  Commercial  Men's  Ass'n  of  Chicago. 
111.  (Neb.)  41. 

(B)  Nonpayinent  of  Preiainiaa  or  Aaaeaa- 
menta. 

I  960.  Life  insurance  company  heU  estop- 
ped to  claim  that  an  entire  agency  apportion- 
ment was  not  applicable  upon  the  premium  on 
a  policy  held  by  the  agent,  within  the  time 
stipulated  for  payment  of  such  apportionment. 
—McNaughton  ▼.  Des  Moines  Life  Ins.  Co. 
(Wis.)  7M. 

{  360.  There  having  been  payable  to  insar- 
ed  on  an  agency  agreement  an  amount  suffi- 
cient to  satisfy  tbe  premium  on  his  policy,  ^e 
insurer  held  bound  to  apply  the  credit  to  pre- 
vent a  lapse. — McNaughton  ▼.  Des  Moines  Life 
Ins.  Co.  (Wis.)  764. 

i  364.  Insured  having  acted  on  the  false 
representation  of  the  company  in  submitting  to 
its  claim  that  the  policy  had  lapsed  was  not 
affected  by  the  law  of  surrender  of  rights  by 
acquiescence.— McNaughton  v.  Des  Moines  Ii£e 
Ins.  Co.   (Wis.)   764. 

I  865.  Application  for  reinstatement  by  an 
insured  erroneously  supposing  his  policy  to 
have  lapsed  held  not  to  preclude  him  from  there- 
after insisting  that  it  did  not  lapse. — McNaugh- 
ton T.  Des  Moines  Life  Ins.  Co.  (Wis.)  764. 

ZI.  E8TOPPEI.,  WAIVEB,  OB  AOBEE- 

MENTS  AFFECTINO  BIOHT  TO 

AVOID  OB  FOBFEIT  POUOT. 

I  376.  Beld,  that  the  agent  of  a  life  insur- 
ance company  cannot  by  oral  agreement  extend 
the  time  for  payment  of  a  premium. — McElroy 
V.  Metropolitan  Life  Ins.  Co.  (Neb.)  27. 

{  378.  An  insurer  ?ield  not  entitled  to  escape 
liability  as  for  an  existing  breach  of  conditions 
thereof.- Wilson  T.  Anchor  Fire  Ins.  Co.  (Iowa) 

157. 

{  378.  An  insurance  company  held  not  chatt- 
ed with  knowledge  of  a  soliciting  agent,  ao 
as  to  estop  it  from  setting  up  as  a  defense  a 
breach  of  condition  in  the  policy ;  Code,  |  1750 
not  being  applicable. — Scrivner  v.  Anchor  Fire 
Ins.  Co.  (Iowa)^942. 

i  389.  A  fire  policy  held  not  avoided  by 
its  sale  and  unconditional  ownership  clause; 
the  insurer's  agent  having  been  told  by  insur- 
ed of  his  conditional  ownership  of  some  of  the 
property.— Miller  y.  Pnissian  Nat.  Ina.  Co. 
(Mich.)  1093. 

f  392.  Notice  to  Insured  after  a  quarterly 
premium  payment  less  his  entire  apportionment 
under  an  agency  agreement  given  when  the  pol- 
icy was  issued,  demanding  onlv  an  additional 
amount  equal  to  three-fourths  of  the  agency  ap- 
portionment waived  the  penalty  for  not  mak- 
ing payment  on  the  exact  due  date  of  the  pre- 


Teptes,  divisions,  *  secUon  (|)  NUMBERS  in  this  Index,  t  Dw.  *  Amw.  Digs.  *  Rvortar  Indazw  agn* 


Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1195 


ij^'um.— MeNanghton  t.  Des.  Moines  life  Ina. 
(  >.   (Wis.)  784. 

i  395.  Return  of  proofs  of  loss,  with  a 
.letter  denying  liability  on  the  ground  of  can- 
cellation of  policy,  mU  not  a  waiver  of  the 
conditions  of  the  policy.— Taylor-Baldwin  Co.  v. 
Northwestern  Fire  &  Marine  Ins.  Co.  C^.  D.) 
396. 

Xn.   RISKS    Aim    CAUSES    OF    I.OSS. 

(B)  Insnranec   of   Property  mad   Tttles. 

i  421.  A  "fire"  within  the  meaning  of  an  in- 
surance policy  defined. — O'Connor  t.  Queen  Ins. 
Co.  of  America  (Wis.)  1038. 

(B)  Aceldent  u>d  Hesltb  Imanranee. 

i  460.  The  words  "under  the  influence  of  any 
intoxicant"  in  a  casualty  policy  held  to  mean 
such  degree  of  influence  as  would  materially  im- 
I»air  insured's  ability  to  guard  against  casual- 
ties.—Bakalars  V.  Continental  Casualty  Co. 
(Wis.)  721. 

i  461.  In  order  to  defeat  liability  on  a  cas- 
ualty policy  prohibiting;  voluntary  exposure  to 
unnecessaiy  danger,  it  is  necessary  that  there  be 
conscious  knowledge  of  the  danger  by  insared 
and  intentional  ezi>osure  to  it.— Bakalars  v.  Con- 
tinental C^asualty  Co.  (Wis.)  721. 

XZV.  NOTXOB  AlTD  PROOF  OF  IX>S8. 

t  655.  Failure  to'  furnish  notice  of  an  ac- 
cident or  proof  thereof  within  the  time  fixed  by 
an  accident  policy  may  l>e  waived  by  insurer  or 
its  general  agent. — Breeden  v.  iBtna  Life  Ins. 
Co.  (8.  D.)  348. 

i  556.  An  insurer  held  bound  by  the  acts 
of  his  general  managing  agent  waiving  a  fail- 
ure to  furnish  proof  of  an  injury  within  the 
time  fixed  by  the  policy.— Breeden  v.  MtoA  Life 
Ins.  Co.  (S.  D.)   34a 

{  658.  Waiver  of  failure  to  famish  notice 
and  proof  of  injury  within  the  time  fixed  by 
an  accident  policy  may  consist  of  some  act 
inconsistent  with  the  claim  that  the  policy  has 
become  inoperative  through  such  failure. — 
Breeden  v.  :^tna  Life  Ins.  Co.  (S.  D.)  34& 

8  558.  Evidence  held  to  authorize  a  find- 
ing that  insurer  in  an  accident  policy  waived 
the  failure  to  furnish  proof  of  an  injury  with- 
in the  time  fixed  by  the  policy. — Breeden  y. 
.Stna  Life  Ins.  Co.  (S.  D.)  348. 

XV.  ADJUSTMENT  OF  X.OSS. 

i  670.  The  board  of  appraisers  appointed  un- 
der the  terms  of  insurance  policy  constitute  the 
quasi  court,  and  they  should  be  disinterested 
men.— Mason  t.  Fire  Ass'n  of  Pliiladelphia 
(S.  D.)  423. 

f  672.  Appraisers  appointed  under  the  terms 
of  an  insurance  policy  should  notify  the  par- 
ties of  the  time  of  their  meeting,  hear  evidence, 
and  arrive  at  a  reasonable,  just,  and  fair  con- 
clusion.— Mason  v.  Fire  Ass'n  of  Philadelphia 
(S.  D.)  423. 

f  674.  An  award  of  appraisers  appointed  to 
estimate  a  loss  on  insured  property  held  in- 
valid.—Mason  T.  Fire  Ass'n  of  Philadelphia 
(S.  D.)  423. 

XVUX.  ACTIONS  ON  FOUCIES. 

Admission  of  execution  of  policy  by  failure  to 
deny  under  oath,  see  Pleading,  §  291. 

Conclusiveness  of  judgment  in  other  action  de- 
termining question  of  title  to  premises,  see 
Jodgment,  )  720. 

ResponsiveneBS  of  verdict  to  issues,  see  Trial, 
1^. 

{  627.  Where,  though  a  foreign  insurance 
company  had  no  agents  in  the  state  (or  spe- 


cific purposes,  it  is  not  denied  that  the  person 
served  with  process  had  not  performed  snch 
acts  as  under  Cobbey's  Ann.  St.  1007,  {  6407, 
would  constitute  him  the  company's  agent,  it  is 
not  established  that  the  person  served  was  not 
its  agent. — Taylor  v.  Illinois  Commercial  Men's 
Ass'n  of  Chicago,  III.  (Neb.)  41. 

I  646.  In  an  action  on  an  accident  policy, 
the  burden  held  on  the  company  to  negative 
the  agency  of  the  person  upon  whom  process 
was  served. — ^Taylor  t.  Illinois  Commercial 
Men's  Ass'n  of  Qiicago,  III.  (Neb.)  41. 

I  646.  In  an  action  on  a  casualty  policy  pro- 
hibiting voluntary  exposure  to  injury,  defendant 
has  the  burden  of  proving  violation  of  such 
clause.- Bakalars  t.  Continental  Casualty  Co. 
(Wis.)  721. 

i  646.  Where  money  Is  absolutely  dae  from 
an  insurance  company  to  a  policy  holder  before 
the  due  date  of  his  premium,  held  that  the  com- 
pany should  apply  the  credit,  if  necessary,  to 
save  the  policy^— McNaughton  t.  Des  Moines 
Life  Ins.  Co.  (Wis.)  764. 

§  646.  An  insurance  company  to  avoid  a 
policy  for  reliating  has  the  burden  to  establish 
its  invalidity  to  a  reasonable  certainty. — Mc- 
Naughton  v.  Des  Moines  Life  Ins.  Co.  (Wis.) 
764. 

I  665.  Slight  evidence  of  waiver  of  fidlnre 
to  furnish  proof  of  an  accident  within  the  time 
fixed  by  an  accident  policy  held  sufficient  to 
show  waiver. — Breeden  t.  iBtna  Ins.  Co.  (S.  D.) 
34a 

{  665.  Evidence,  in  an  action  on  an  insur- 
ance policy  to  recover  for  loss  thereunder,  and 
for  vacating  an  award  made  by  appraisers,  held 
to  show  that  the  appraiser  appointed  by  the  in- 
surance company  was  not  fair  and  impartial. — 
Mason  v.  Fire  Ass'n  of  Philadelphia  (S.  D.)  423. 

{  665.  In  an  action  on  a  casualty  policy,  evi- 
dence held  insufficient  to  show  a  violation  by  in- 
sured of  a  clause  prohibiting  voluntary  exposure 
to  unnecessary  danger. — ^Bakalars  v.  (Continental 
Casualty  Co.  (Wis.)  721. 

{  665.  In  an  action  on  a  casualty  policy,  evi- 
dence held  insufficient  to  show  that  at  the  time 
of  his  injury  insured  was  under  the  influence  of 
intoxicating  liquor. — Bakalara  t.  Continental 
Casualty  CS).  (Wis.)  721. 

{  66a  Whether  there  was  an  increase  of 
hazard  avoiding  a  fire  policy  held  a  question 
for  the  jury.— Miller  v.  Prussian  Nat.  Ins.  Co. 
(Mich.)  1093. 

f  66a  The  determination  by  the  court  as  to 
whether  the  loss  of  insured  property  was  by 
fire  held  proper. — O'Connor  t.  Queen  Ins.  (3o. 
of  America  (Wis.)  103a 

XX.   MUTITAIi  BENEFIT  XNSTTBANCE. 

(A)  Corporations  and  Aasooiatloma. 

i  69a  A  by-law  of  a  benefit  society,  adopted 
subsequent  to  a  benefit  certificate,  will  be  strict- 
ly construed,  and  if  in  contravention  of  tlie 
statute  will  be  held  void.— Briggs  v.  Royal  High- 
landers (Neb.)  69. 

t  603.  The  governing  body  of  a  benefit 
society  which  has  not  complied  with  Acts  1^7, 
p.  266,  c.  47,  i  1,  held  without  power  to  adopt 
a  by-law  changing  the  terms  of  a  benefit  certif- 
icate theretofore  issued. — Briggs  v.  Koyal  High- 
landers (Neb.)  69. 

i  693.  Governing  body  of  fraternal  benefit 
society  held  not  a  representative  body,  and 
that  the  society  could  not  be  said  to  have  a 
representative  form  of  government. — ^Briggs  v. 
Royal  Highlanders  (Neb.)  69. 

(D)  Forfeiture  or  Bnapenalon. 

i  755.  Under  Code  1897,  {  1826,  a  fraternal 
benefit  society  failing  to  attach  the  application 


For  easss  in  Sec.  Olg.  ft  Amer.  Digs.  IMT  to  dats  A  Indexsa  see  same  topic  *  section  (D  NUM BHR 

Digitized  by  VjOOQ  l€ 


1196 


122  NORTHWESTERN  T"g        ITER. 


to  a  certificate  hdd  precluded  from  pleading 
or  proTing  a  false  representation  of  insured. — 
Mullen  v.  Woodmen  of  the  World  (Iowa)  903. 

(B)  Beneflolarlea  and  Beneflta. 

{  777.  A  fraternal  benefit  society  cannot 
avoid  liability  on  the  certificate  because  the 
beneficiary  named  therein  is  not  within  any 
of  the  classes  designated  by  the  law  nor  an 
heir  or  legatee  of  the  member.— Mullen  v. 
Woodmen  of  the  World  (Iowa)  903. 

{  777.  Where  the  beneficiary  in  a  mutual 
l)eneflt  certificate  cannot  recover  because  not 
within  any  of  the  classes  designated  by  law 
nor  an  heir  or  legatee  of  the  member,  the  ad- 
ministrator of  the  member  may  recover. — Mul- 
len V.  Woodmen  of  the  World  (Iowa)  903. 

§  789.  Suicide  held  not  a  defense  to  a  mntn- 
al  benefit  certificate  unless  it  is  so  expressly 
provided.— Briggs  ▼.  Royal  Highlanders  (Neb.) 

i  789.  A  beneficial  insurance  order  waived 
its  right  to  insist  on  proofs  of  death,  as  a  con- 
dition precedent  to  beginning  suit  on  a  cer- 
tificate, where  it  refused  to  receive  proofs  of 
death  based  on  absence  on  which  tiie  bene- 
ficiary relied.— Miller  v.  Sovereign  Camp  Wood- 
men of  the  World  (Wis.)  1120. 

(F)  Aotlona  for  Benefits. 

S  806.  Where  a  member  of  mutual  benefit 
company  was  suspended  at  his  death,  and  his 
beneficiary  had  appealed  from  the  decision,  so 
as  to  exhaust  her  remedy  within  the  order  be- 
fore suing,  as  required  by  the  by-laws,  the 
beneficiary  could  not  sue  on  the  claim.— Con- 
ley  V.  Supreme  Court,  I.  O.  F.  (Mich.)  567. 

8  819.  Where  the  defense  was  that  insured's 
certificate  had  lapsed  because  of  his  use  of 
morphine,  evidence  held  not  to  sustain  a  find- 
ing that  insured  was  in  such  a  physical  condi- 
tion that  the  habitual  use  of  morphine  was 
necessary  to  prolong  his  life  or  to  afford  tem- 
porary relief.— Conley  v.  Supreme  Court,  I.  O. 
P.  (Jiich.)  567. 

INTENT. 

Element  of  offense  of  misappropriation  of  funds 
by  officer  of  trust  company,  see  Banks  and 
Banking,  i  314. 

Fraudulent,  see  Fraudulent  Conveyances,  g  165. 

INTEREST. 

Allowance  of,  as  part  of  judgment  when  not 
pleaded,  see  Judgment,  {  253. 

Liahilitiet  of  particular  clatie*  of  pertont. 
See  Executors  and  Administrators,  $  104. 

Pecuniary  intere*t  in  particular  »ub)ect-maiter. 
Affecting  right  of  review,  see  Appeal  and  Error, 


J  150. 

Effe 


Effect   as   to  credibility   of  witness,   see   Wit- 
nesses, f  372. 
Insurable  interest,  see  Insurance,  §§  114,  115. 

m.  TrBfE  AKD  OOMPITTATIOH. 

i  60.  An  offer  to  confess  judgment  after  ac- 
tion brought  relieves  defendant  from  subse- 
quent interest,  without  paying  the  money  to 
the  clerk  of  the  court.— Security  State  Bank  of 
Washington  v.  Waterloo  Lodge  No.  102,  A.  F. 
&  A.  M.  (Neb.)  992. 

{  50.  Equity  will  not  be  diligent  to  find  rea- 
sons to  permit  a  creditor  to  recover  interest 
where  the  debtor  has  attempted  to  pay,  and  the 
creditor  has  by  his  own  conduct  lost  the  right 
thereto.— Security  State  Bank  of  Washington 
v.  Waterloo  Lodge  No.  102,  A.  P.  &  A.  M. 
(Neb.)  992. 


iNT      .OCUTORY  INJUNCTION.^ 

See  Injuncdon,  tS  135,  148.  '^ 

INTERLOCUTORY  JUDGMENT. 

Appealability,  see  Appeal  and  Error,  §  69.  . 
Review  on  appeal  or  writ  of  error,  see  Appe- 
and  Error,  |  873. 

INTERNAL  IMPROVEMENTS. 

Restrictions  on  powers  of  state,  see  Sta  a,  f 
119. 

INTERPLEADER. 

Intervention  in  ejectment,  see  Ejectment,  S  50. 

INTERPRETATION. 

Of  contract*,  in»trument*,  or  judicial  act*  and 
proceeding*. 

See  Bills  and  Notes,  §  120;  Bonds,  |  52;  Con- 
tracts, i§  147-202;  Release,  SS  28,  37;  Sales, 
«i  71-82;    Statutes,  g§  181-263. 

Lease,  see  Landlord  and  Tenant,  |  37. 

INTERROGATORIES. 

To  Jury,  see  Trial,  |i  349-362. 

INTERRUPTION. 

Of  possession,  see  Adverse  Possession,  {  4". 

INTERSTATE  COMMERCE. 

Regulation,  see  Commerce. 

INTERURBAN  RAILROADS. 

Exercise  of  power  of  eminent  domain,  see  Emi> 
nent  Domain,  H  10,  168. 

INTERVENTION. 

In  actions  in  general,  see  Parties,  {f  40-52. 

INTESTACY. 

See  Descent  and  Distribution. 

INTOXICATING  LIQUORS. 

Duties  of  police  as  to  closing  saloons  found 
open  in  violation  of  law,  see  Municipal  Corpo- 
rationS;  f  181. 

Loss  of  illegal  sales  as  element  of  damages  for 
libel,  see  Libel  and  Slander,  §  118. 

Mandamus  to  compel  enforcement  of  regula- 
tions, see  Mandamus,  {  23. 

UX.  XiOOAI.  OPTION. 

i  38.  A  local  option  election  held-  not  in- 
validated by  fact  that  notice  of  election  was 
not  published  as  required  by  Comp.  Laws  189T, 
§  54l7.— Bauer  v.  Board  of  Denmark  Tp. 
(Mich.)  121. 

IV.  UOEKSES  AND  TAXES. 

{  46.    An  ordinance  designating  places  where 
saloons  could   be  licensed,   and  omitting  that 
where  petitioner  had  previously  carri      ,„.    ' 
business,  held  valid. — Mills  ^     Comn        *- 
cil  of  City  of  Ludington  (M  ■*      quarterly 

intoxicating    liquors,    filed    a<  ,j   filing   of 

the  original  statement  and  tl:  ace  for  hear- 

ing,    cannot    be   considered.-  jott   r.    Naacke 
(Iowa)  824. 


(  66.    Under  Code  1897,  iS 
held  that  statements  of  conS' 


Topics,  dWltlons,  ft  secUon  (!)  NUMBERS  In  thli  Index,  *  Dec.  *  Amer.  Digs.  *  Reporter  Indexes  agree 

Digitized  by  LjOOQ  l€ 


ti  •^BX-DIGBST. 


1197 


(    16.    Hie  district  conrt,  in  an  u     J  to  leat 

.-ufficiency  of  a  statement  of  cont  at  to  the 

:  of  intoxicating   liquors,   pioperly  allowed 

\...a  withdrawal  of  names  from  the  statement. 

-Scott  V.  Naacke  (Iowa)  824. 

{  66.    Under  Code  1897,  f{  2448,  2449,  the 

.^ntical   names   signed    to    the    statements    of 

'jnsent  to  the  sale  of  liquor  mast  appear  on 

the  respective  poll  books  of  the  last  preceding 

elect'on,  or  they  cannot  be  counted.— Scott  t. 

Naa<  e  (Iowa)  824. 

I  t-;.  Where  the  signature  to  the  statement  of 
consent  to  the  sale  of  liquor  is  by  mark,  it 
must  be  witnessed,  or  it  cannot  l>e  counted. — 
Scott  V.  Naacke  (Iowa)  824. 

{  66.  Code  1897,  f  2452,  providing  that  the 
date  of  signing  the  statements  of  consent  to  the 
sale  of  liquors  shall  be  given,  held  not  complied 
with  by  an  attached  affidavit,  averring  that  all 
rignatnres  were  made  within  a  specified  period. 
—Scott  V.  Naacke  (Iowa)  824. 

{  88.  Under  Comp.  Laws  1897,  |  5398,  an 
action  for  damages  for  the  unlawful  sale  of 
liquor  held  to  lie  against  the  surety  on  the  liq- 
uor dealer's  bond. — Scabill  v.  iBtna  Indemnity 
Co.    (Mich.)    7& 

t  88.  An  instruction  in  an  action  against  the 
surety  on  a  liqnor  dealer's  bond  for  civil  dam- 
ages held  to  sufficiently  protect  the  surety.— 
Scahill  T.  JGtna  Indemnity  Co.  (Mich.)  78. 

I  88.  A  plaintiff  suing  under  the  civil  dam- 
age act  a  liquor  dealer  aild  three  sets  of  sure- 
ties h»1d'  entitled  to  a  judgment  against  the  liq- 
uor dealer  and  one  surety  on  consent  to  a  dis- 
coutiunance  of  the  action  against  the  other 
sureties. — Merrinane  v.  Miller  (Mich.)  82. 

{  95.  Though  Code  1897,  f  2445,  requires 
payment  of  mulct  liquor  taxes  into  the  county 
treasury,  Md  that  only  one-half  of  such  taxes 
Iiecomes  the  property  of  the  county,  and  it  is 
not  liable  to  a  city  for  the  amount  deducted 
by  the  county  treasurer,  as  a  collection  charge, 
from  the  city's  one-half  of  the  taxes.— Sioux 
City  V.  Woodbury  County  (Iowa)  940. 

VI.   OFFENSES. 

{  145.  The  proprietor  of  a  saloon  is  Bl>soIute- 
ly  bound  to  keei>  his  saloon  closed  on  Sunday 
and  during  certain  hours  of  the  night.— People 
V.  Norman  (Mich.)  S69. 

§  145.  Defendant  heM  not  to  have  kept  his 
saloon  closed  on  Sunday  where  his  boarders  and 
employes  could  otttain  access  to  the  barroom  on 
that  day.— l^eople  v.  Norman  (Mich.)  309. 

i  151.  Under  Hev.  Pol.  Code,  {{  2S34.  2835, 
2838,  plaintiff  held  engaged  in  unlawfully  of- 
fering beer  for  sale  in  this  state  without  a  li- 
cense.— Conrad  Seipp  Brewing  Co.  v.  Green 
(S.  D.)  062. 

{  159.  In  a  prosecution  of  a  saloon  keeper 
for  selling  intoxicating  liquors  to  a  minor,  it 
is  no  defense  that  accused  acted  in  ignorance 
of  the  minor's  age,  and  with  no  intent  to  vio- 
late the  law.— Seele  v.  State  (Neb.)  686. 

vm.  orhhnai.  pboseoutiohs. 

Admissibility  of  evidence  wrongfully  obtained, 
see  Criminal  Law,  {  895. 

Applicability  of  instructions  to  case,  see  Crim- 
inal Unr,  I  814. 

''■jg^     *'jfor  instructions,  see  Criminal  Law, 

Conclut  ■"  .      „.;;^ 

termini.  '/roaecution  of  a  druggist  for 

unfinfigmeni  .   liquor,  and  permitting  it  to 

be  drunvvenv  '•^jremises,  etc.,  accused's  re- 
ports to  the  lilting  attorney  as  required  by 
law.  sbowing'v  tiales  made  by  him,  held  ad- 
missible in  coni'.'^tion  with  other  evidence. — 
People  V.  Van  Alstyne  (Mich.)  193. 


f  226.  A  search  warrant  under  which  de- 
fendant's premises  were  searched  and  liquors 
seized  is  inadmissible  as  independent  evidence 
where  it  recites  that  complainant,  who  was  not 
a  witness,  stated  under  oath  that  defendant 
was  guilty.— McCabe  v.  State  (Neb.)  893. 

S  233.  In  a  prosecution  against  a  druggist  for 
the  sale  of  liquor  in  violation  of  the  local  op- 
tion law,  by  permitting  it  to  be  drunk  on  the 
premises,  etc.,  evidence  held  admissible  that  ac- 
cused maintained  a  room  adjoining  his  sales- 
room, and  that  purchasers  sometimes  drank  liq- 
uor purchased  from  him  therein. — People  v.  Van 
Alstyne   (Mich.)   193. 

i  234.  Evidence  as  to  payment  for  a  li- 
cense to  sell  liquor  held  immaterial  in  the 
absence  of  an  offer  to  show  that  the  license 
authorized  defendant  to  sell  liquor  in  the  place 
alleged.— State  v.  Madison  (S.  D.)  617. 

!  236.  In  a  prosecution  of  a  druggist  for  sell- 
ing intoxicants  in  violation  of  the  local  option 
law,  evidence  held  to  sustain  a  finding  that  ac- 
cused's drug  business  was  merely  a  sham  to 
conceal  his  principal  business,  which  was  the 
sale  of  liquor  in  violation  of  law. — People  v. 
Van  Alstyne  (Mich.)  193. 

§  236.  Finding  held  justified  that  the  main- 
tenance of  a  room  was  in  violation  of  the  ordi- 
nance against  maintaining  within  a.  licensed 
room  another  room  or  inclosure  where  intoxi- 
cating liquor  is  or  may  be  drunk.— State  v. 
Lally  (Minn.)  IS. 

IX.  8EABOHE8,  SEIgPBEg,  AND  FOR- 

FEITITBES. 

S  249.  Where  intoxicating  liquors  are  kept 
and  sold  in  a  private  dwelling  house,  it  be- 
comes a  "shop''  or  "place  of  public  resort" 
subject  to  search  under  Laws  1907,  p.  363,  c. 
173,  i  8.— State  v.  Madison  (S.  D.)  647. 

X.  ABATEMENT  AND  INJUNOTION. 

Judicial  notice  of  decree  violated  in  proceeding 
to  punish  for  contempt,  see  Evidence,  {  43. 

{  263.  The  court,  being  satisfied  that  fair 
association  directors  had  abandoned  the  sale  of 
liquor  privileges,  could  deny  a  permanent  in- 
junction against  the  sale  of  liquor.— Sawyer  v. 
Termohlen  (Iowa)  924. 

i  273.  Under  Code,  f  2405,  held,  that  no  dis- 
cretion is  lodged  in  the  trial  court,  and  that 
a  temporary  injunction  against  a  nuisance 
should  be  granted  as  a  tnatter  of  course  on  con- 
tinuance at  defendant's  instance. — Sawyer  v. 
Termohlen  (Iowa)  924. 

i  279.  The  owner  of  a  building  held  not 
guilty  of  violating  an  injunction  against  selling 
liquor  or  permitting  the  same  to  be  sold  in  the 
building.— Sawyer  v.  Mould  (Iowa)  813. 

8  279.  Contempt  proceedings  for  violating  a 
liqnor  injunction  may  be  prosecuted  under  the 
title  of  the  action  for  which  the  injunction  is- 
sues.— Haaren  v.  Mould  (Iowa)  921 :  Stevenson 
y.  Same,  Id. 

I  279.  Under  C!ode  1897,  {  2407,  failure  to 
attach  an  authenticated  copy  of  a  liquor  in- 
junction to  an  information  for  violation  thereof 
held  not  a  jurisdictional  objection  to  proceed- 
ings for  contempt.— Haaren  v.  Mould  (Iowa) 
921 ;    Stevenson  v.  Same,  Id. 

{  279.  In  a  proceeding  tor  contempt  for  vio- 
lating an  injunction  under  Code  1897,  i  2407, 
the  court's  failure  to  issue  a  warrant  or  pre- 
cept for  defendant's  apprehension  was  not  a 
jurisdictional  defect.— Haaren  v.  Mould  (Iowa) 
921 ;    Stevenson  v.  Same,  Id. 

!  279.  On  hearing  contempt  proceedings  for 
violation  of  an  injunction  against  selling  liquor, 
held,  that  a  failure  to  offer  the  injunction  de- 


For  eaaas  In  Dec.  Dig.  *  Amer.  Digs.  1807  to  <UU  *  lodexM  see  umc  topic  *  swUoB  (|)  miMBBR 

Digitized  by  VjOOQ  IC 


1198 


122  NORTHWESTERN  REPORTER. 


cree  in  evidence  waa  not  fatal. — Sawyer  r.  Oli- 
ver (Iowa)  950. 

S  279.  An  injunction  acainst  selling  liquon 
held  Tiolated. — Sawyer  r.  Oliver  (Iowa)  950. 

i  280.  Failure  of  court  to  mle  on  accused's 
objections  to  tlie  jurisdiction  and  to  evidence 
is  ground  for  reversal,  if  prejudicial. — Haaren 
V.  Mould  (Iowa)  921 ;    Stevenson  v.  Same,  Id. 

{  280.  In  a  proceeding  fo>  violation  ot  a 
liquor  injunction,  the  court's  failure  to  rule  im- 
mediately on  a  jurisdictional  objection  held  cur- 
ed.— Haaren  v.  Mould  (Iowa)  921 ;  Stevenson  t. 
Same,  Id. 

XI.   CIVH.  DA3SAOE  X.A'WS. 

S  310.  In  an  action  on  a  liquor  dealer's  bond 
for  personal  tujnries  from  an  assault  in  defend- 
ant's saloon  evidence  held  to  sustain  a  judg- 
ment for  plaintiff.— Shepard  t.  Piatt  (Mich.) 
539. 

{  313.  Under  Gomp.  Laws  1897,  {  6398,  ex- 
emplary damages  may  be  awarded  for  the  sale 
of  liquor  to  a  minor,  thongh  the  liqnor  dealer 
did  not  know  of  the  minority. — Scahill  v.  ^tna 
Indemnity  Ck>.  (Mich.)  7a 

{  316.  In  an  action  upon  a  liquor  dealer's 
bond  tor  personal  injuries  alleged  to  have  been 
received  from  an  assanlt  upon  plaintiff  by  n 
person  in  the  habit  of  becoming  intoxicated, 
while  intoxicated  with  liquors  sold  him  by  the 
dealer,  evidence  held  sufficient  to  go  to  the 
jury.— Shepard   v.   Piatt  (Mich.)   539. 

Xa.  BIOHTS  OF  PROFEBTT  AUB 

ooirrBACTs. 

S  327.  A  contract  for  the  sale  of  beer  at 
wholesale,  made  in  violation  of  a  statute,  by 
which  making  such  sale  within  the  state  witu- 
out  a  license  was  a  misdemeanor,  was  void. — 
Conrad  Seipp  Brewing  C!o.  v.  Green  (S.  D.) 
<?62. 

{  829.  The  seller  held  not  entitled  to  re- 
cover upon  a  contract  for  the  price  of  beer 
sold  under  a  contract,  which  was  void  because 
made  in  violation  of  a  statute  making  its  sale 
within  the  state,  withont  a  license,  a  misde- 
meanor.—CJonrad  Seipp  Brewing  Co.  v.  Green 
(S.  D.)  662. 

INTOXICATION. 

Of  insured  as  affecting  liability  on  policy, 
weight  and  sufficiency  of  evidence,  see  Insur- 
ance, {  065. 

Of  maker  of  note  as  affecting  validity,  see  Bills 
and  Notes,  {  101. 

INVESTMENT  COMPANIES. 

See  Banks  and  Banking,  S§  311,  314. 

ISSUES. 

In  civil  actions,  see  Pleading,  %  387. 
Presented  for  review  on  appeal,  see  Appeal  and 
Error,  |  173. 

JAPANESE. 

Competency  m  witnesses,  see  Witnesses,  f  38. 

JOINDER. 

Of  causes  of  action,  see  Action,  |(  38-50. 
Of  offenses  in  indictment,  see  Indictment  and 

Information,  Ǥ  127,  132. 
Of  parties  in  civil  actions,  see  Parties,  ^  86. 

JOINT  ADVENTURES. 

{  4.  A  partner,  under  agreement  for  the  sale 
of  mining  property  and  for  a  division  of  the 


profits,  lield  not  entitled  to  dissolve  the  partner- 
ship, transact  the  business  in  his  own  name, 
and  disregard  the  right  of  the  other  partner  to 
share  in  the  profits.— Cbambeifl  v.  Mittnacbt 
(S.  D.)  484. 

(  7.  Defendant  held  not  jointiy  liable  with 
others,  who  owned  an  interest  in  a  paper  in 
which  defendant  owned  one-third  interest,  for 
debts  incurred  bv  them  without  his  knowledge 
or  consent.- Strohscbein  y.  Kranidi  (Mich.)  ITS. 

JOINT-STOCK  COMPANIES. 

UabilitieB  as  partners,  of  promoters  of  imrtner- 
ship  association,  failing  to  record  articles  of 
aasoclatitm,  see  Partnership,  $  42. 

S  6.  '  One  dealing  with  individuals  as  part- 
nership association,  limited,  Is  not  estopped  from 
denying  the  existence  of  the  partnership  be- 
cause of  the  failure  to  record  the  articles  of  as- 
sociation, and  he  may  sue  the  individuals  for 
fraud  in  inducing  him  to  subscribe  and  pay 
for  stock.— Nichols  y.  Buell  (Mich.)  217. 

(  6.  Evidence  held  to  show  that  the  promo- 
ters of  a  partnership  association,  limited,  who 
executed  articles  of  association  which  were  not 
recorded,  as  required  by  law,  were  gnilty  of 
fraud  in  inducing  one  to  subscribe  ana  pay  for 
stock.- NichoU  v.  Buell  (Mich.)  217. 

f  7.  Equity  may  cancel  a  certificate  of  stock 
in  an  alleged  partnership  association,  limited, 
on  the  ground  of  fraud,  and  award  damages 
for  the  fraud  as  between  complainant  and  de- 
fendants.—Nichols  V.  Buell  (Mich.)  217. 

i  14.  A  resolution  of  a  limited  partnership 
heut  to  require  the  trustees  appointed  thereby 
to  apply  proceeds  of  a  sale  of  partnership 
property  pro  rata  on  all  its  indebtedness  — 
Lipsett  y.  Hassard   (Mich.)   1091. 

JOINT  TENANCY. 

See  Tenancy  In  Common. 

JUDGES. 

See  Coarts ;   Justices  of  the  Peace. 
Mandamus  to  judge,  see  Mandamus,  i|  28,  87. 
Remaiiis  and  conduct  of,  at  trial,  see  Trial,  f 
29. 

I.  AFPOIITTMENT,      QTTAUTIOATIOH. 

jum  TEirnRE. 

Validity  of  law  forbidding  indorsement  or  ref- 
erence by  any  political  party,  convention,  or 
primary,  to  candidates  for  judicial  office  as 
violation  of  right  of  assembly,  see  Constitu- 
tional Law,  i  91;  as  violation  of  right  to 
free  speech,  see  Constitutional  Law,   f  90. 

Validity  of  law  providing  for  nominantni  of 
judge,  see  Elections,  {  120, 

m.  mawts,  powers.  hvriBa,  ahd 

lit  A  BTTiTTIES. 

i  29.  Oonst  art  7,  {  11,  anthorises  the  Legis 
lature  to  empower  circuit  Judges  to  exchange, 
both  to  hold  regular  terms  of  the  circuit  court, 
and  also  to  conduct  general  Judicial  busiDP!!^ 
—In  re  Southern  Wisconsin  Power  O.  f\Vis.( 
801,  809;  Appeal  of  Black  Hawk  Land  Co. 
(Wis.)  801;    Appeal  of  Whitnall  (Wis.)  809. 

{  29.  St  1898,  {  2482,  held  to  anthorise  a 
judge  holding  court  in  a  circuit  other  than  bis 
own,  pursuant  to  an  exchange,  to  transact  all 
the  judicial  business  of  the  circuit  in  which 
he  is  sitting.— In  re  Southern  Wisconsin  Power 
Co.  fWis.)  801,  809;  Appeal  of  Black  Hawk 
Land  Co.  (Wis.)  801;  Appeal  of  Whitnall 
(Wis.)  809. 


Topics,  divistoni,  Ic  seclloii  (i>  NUMBERS  In  ttali  Indsxi  tc  Dec.  A  Amer,  Digs.  A  Reporter IndaxM 

Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1199 


JUDGMENT. 

Decision*  of  courta  in  ceueral,  see  Courts,  it 

89-116. 
Enforcement  by  creditors'  soit,  see  Creditors' 

Suit 
Liability  to  seizure  and  sale  in  distress  pro- 

ceedii^KB  for  nnpaid  taxes,  see  Taxation,  {  576. 
Subject  to  execution,  see  Execution,  {  49. 

In  aetion»  6y  or  agaitut  parttoidor  ciMte*  of 

perton*. 
See  Insane  Persons,  %  100. 

/i»  partioulQr  eivU  action*  or  proeeodinfi. 
See  Creditors'  Suit,  (  51. 
On  appeal  or  writ  of  error,  see  Appeal  and 

Error.  |§  1103-1207. 
To    enforce    mechanic's    lien,    see    Mechanics' 

Uens,  i  291. 

Review. 
See  Appeal  and  Error. 

Z.  NATUBE  AMD  ESSENTIAIA  IN 
OEMEBAZ.. 

J  17.  Where  affidavits  on  a  motion  to  set 
de  a  default  judgment  showed  that  process 
was  properly  serveo,  it  was  immaterial  that 
the  return  on  the  process  was  insufficient. — 
Marin  t.  Titus  (8.  D.)  596. 

•H.  BT  OONTES8ZON. 

Offer  as  affecting  interest,  see  Interest,  i  50. 

It.  BT  ])EFAUI.T> 

(B)  Opening  or  Settlns  Aside  Detenlt. 

f  162.  Evidence  held  to  warrant  a  finding 
that  summons  was  served  on  defendant  by  leav- 
ing a  copy  at  his  residence.— Marin  v.  Titus  (S. 
D.)  696. 

VI.   ON  TBIAI.  OF  ISSITES. 

(A)  Rendition,  Form,  and  Reanlaltea  In 
General. 

S  224.  A  judgment  for  costs  which  leaves 
blank  the  amount  of  the  costs  is  valid,  and  the 
amount  of  costs  may  be  inserted  at  any  time. — 
In  re  Brandes'  Estate  (Iowa)  954;  Hoyer  t. 
Buckholz,  Id. 

<B)  Parties. 

General  judgment  against  joint  defendants  for 
punitory  damages,  see  Damages,  §  02. 

i  238.  In  an  action  against  defendants  joint- 
ly on  a  joint  agreement,  plaintiff  could  not  dls- 
continoe  against  part  of  defendants  and  recover 
against  one  of  them  alone.— Struhschein  v. 
Kranich  (Mich.)  178. 

(O)  OontonnltT  t«   Prooeaa,   Pleadlnsa* 
Proofs,  and  Terdlet  or  Flndlnva* 

I  258.  Though  no  claim  for  interest  was 
made  in  the  pleadings  in  an  eqnity  case  for 
damages  for  fraud  in  an  exchange  of  property, 
plaintiff  may  be  allowed  interest  on  the  balance 
found  dne  him  from  the  date  of  the  exchange.— 
Bobbins  T.  Selby  (Iowa)  964. 

VH.  ENTBT,    BEOOBP,    AND    DOOK- 
ETINO. 

Technical  or  trivial  errors  relating  to  as  not 
ground  for  reversal,  see  Appeal  and  Error,  I 
1170. 

Vm.  AMENDMENT,   OOBBEOTION, 
AND  BEVIEW  IN   SAME  OOUBT. 

Divorce  decree,  see  Divorce,  iS  303,  309. 

I  308.  Party  against  whom  a  judgment  void 
in   part   is   directed    held   entitled    to   have  the 


void  part  expunged  from  the  records.- Higgins 
V.  Vandeveer  (Neb.)  843. 

Z.  EQUITABI.E  BEUEF. 

Judgment  against  insane  person,  see  Insane  Per- 
sons, f  100. 

(A)  Ratnre  of  Remedy  and  Gronnda. 

I  444.  Injunction  will  not  be  granted  to  re- 
sfrain  the  collection  of  a  judgment  on  the 
ground  that  it  was  obtained  by  perjury,  not- 
withstanding the  bill  alleges  an  admission  there- 
of by  the  judgment  plaintiff.— Steele  v.  C!alver 
(Mich.)  95. 

XL   COIXATEBAI.  ATTACK. 

On  appointment  of  guardian  of  property  of 
insane  person,  see  Insane  Persons,  |  36. 

(A)  Jndarments  Impeaehable  Collaterally. 

f  479.  A  decree,  in  a  mortgage  foreclosure 
suit  brought  December  4,  1891,  cannot,  after 
the  death  of  some  of  the  parties  and  the  disabil- 
ity of  others  from  testifying,  be  attacked  col- 
laterally by  representatives  of  a  collateral  mort- 
gagor, to  redeem  the  projierty  covered  by  that 
mortgage.— Miller  v.  Peter  (Mich.)  780. 

(B)  Oroanda. 

i  480.  A  void  judgment  may  be  impeached  in 
any  action,  direct  or  collateral. — Radii  v.  Saw- 
yer (Neb.)  980. 

{  493.  Jurisdictional  defects  which  appear 
upon  the  face  of  proceeding  may  be  raised  at 
any  time  between  the  parties,  even  in  a  collat- 
eral proceeding,  when  the  rights  of  innocent 
third  persons  are  not  concerned. — In  re  Phillips 
(Mich.Tl  554. 

{  505.  The  insufficiency  of  an  agreement 
upon  which  a  judgment  is  rendered,  or  the  want 
of  authority  of  the  attorneys  making  the  same, 
will  not  make  the  judgment  void  and  subject 
to  collateral  attack.— Wabaska  Electric  Co.  v. 
City  of  Blue  Springs  (Xeb.)  21. 

Xm.  MERGER  AND  BAR  OF  CAUSES 
OF  ACTION  AND  DEFENSES. 

(A)  Judvntents  Operative  as  Bar. 

S  564.  To  constitute  an  adjudication,  there 
mast  have  been  a  final  judgment  on  the  merits. 
— Wapello  State  Sav.  Bank  v.  Colton  (Iowa) 
149. 

{  670.  A  judgment  of  dismissal,  entered  on 
plaintiff's  failure  to  plead  over  after  the  sus- 
taining of  a  motion  to  strike,  may  be  pleaded 
in  bar  of  another  action  based  on  substantially 
the  same  facts.- Wapello  State  Sav.  Bank  v. 
Colton  (Iowa)  149. 

(B)  Caaaea  of  Action  and  Defenses  Merc- 

ed, Barred,  or  Concluded. 

I  590.  Judgment  in  replevin  for  defendant 
on  ground  that  plaintiff's  petition  does  not 
state  a  cause  of  action  held  not  a  bar  to  a 
subsequent  action. — Pennington  County  Bank 
V.  Bauman  (Neb.)  848;  Dodge  County  Bank  v. 
McQiverin,  Id. 

XIV.   CONOtUSrVENESS   OF  ADJUDI- 
CATION. 

Couclusiveness  of  decree  of  distribution  against 
administrator  and  his  bondsmen,  see  Execu- 
tors and  Administrators,  {  635. 

(A)  Jadsments    Conolnslve  In   General. 

S  658.  Where,  before  any  judgment  was  en- 
tered after  sustaining  a  demurrer  to  the  peti- 
tion, the  action  was  dismissed  without  preju- 
dice, there  was  no  adjudication  binding  on 
either  party.- Fisk  v.  City  of  Keokuk  (Iowa) 
896. 


Tor  oat«s  In  D«e.  Dis-  A  Am«r.  Dig*.  19OT  to  dste  *  Indazas  see  uun*  tapio  ft  section  U)  NT7UBKS 

Digitized  by  VjOOQ  IC 


1200 


122  NORTHWESTERN  REPORTER. 


(B)  Persona  Conelmded. 

Judgment    in   probate   proceedings,   see   Wilis, 
i  432. 

{  682.  Collateral  attacic  on  a  decree  in  a  pri- 
or action  adjudging  a  lien  for  taxes  on  land  held 
not  permissible.— Anker  v.  Schreib  (Micli.)  530. 

S  682.  Where,  in  an  action  by  grantee  of  a 
mortgagor  against  the  mortgagee  to  quiet  title, 
the  mortgagor  was  not  made  a  party,  a  judg- 
ment that  the  mortgage  was  a  valid  lien  held 
not  res  adjudicata  as  to  the  mortgagor.— Kam- 
mann  y.  Barton  (8.  D.)  41C. 

{  707.  That  a  person  not  a  party  to  a  suit 
employs  counsel  to  assist  therein  held  not  to 
make  him  a  party,  nor  estop  him  from  ques- 
tioning the  issues  determined. — Cochins  y.  Bank 
of  Alma  (Neb.)  16. 

(O)  Matters  Coaoladed. 

i  714.  A  mortgage  foreclosure  decree  held 
res  judicata  of  the  question  of  what  credit 
should  be  given  on  the  debt  for  releases  by  the 
mortgagee  to  one  of  the  mortgagors  of  land  cov- 
ered by  a  collateral  mortgage. — Miller  t.  Peter 
(Mich.)  780. 

i  714.  An  adjudication  in  foreclosure  that  the 
mortgagee  was  entitled  to  claim  for  taxes  paid 
held  res  judicata  in  a  subsequent  suit  by  the 
wife  of  the  mortKagor  to  have  a  deed  of  proper- 
ty, conveyed  to  the  mortgagee  for  credit  on  the 
deficiency  judgment,  declared  a  mortgage  and  to 
redeem.— Miller  y.  Peter  (Mich.)  780. 

I  720.  A  decree  in  proceedings  for  a  writ  of 
assistance  by  the  purchaser  of  a  tax  title  held 
conclusive  in  an  action  on  an  insurance  policy 
as  to  the  title  of  insured. — Kennedy  v.  London  & 
Lancashire  Fire  Ins.  Co.  (Mich.)  134. 

S725.  A  final  adjudication  is  conclusive,  not 
y  on  every  matter  in  issue,  but  also  on  all 
other  matters  or  questions  necessarily  involved 
therein.— Cooper  v.  Brown  (Iowa)  144. 

{  725.  In  the  absence  of  proof  tlwt  a  particu- 
lar issue  was  tried,  a  former  judgment  is  con- 
clusive only  as  to  those  facts  without  the  proof 
of  which  it  could  not  have  been  rendered.— Kam- 
mann  v.  Barton  (S.  D.)  416. 

f  731.  In  an  action  to  foreclose  a  mortgage, 
a  judgment  in  a  former  action  held  not  res 
adjudicata  on  the  question  of  limitations.- Kam- 
mann  v.  Barton  (S.  D.)  416. 

(D)  Jndvineats  In  Psrtlealar  Clnaaea  o< 
Aetlona  and  Proceedlnsa. 

i  748.  Judgment  in  replevin  held  not  incon- 
sistent with  the  right  of  the  defeated  party  to 
afterwards  assert  a  right  of  possession  under 
changed  conditions.— Pennington  County  Bank 
V.  Bauman  (Neb.)  848;  Dodge  County  Bank  y. 
McUiverin,  Id. 

XV.  I.IEH. 

§  754.  A  judgment  is  not  a  lien  on  real  es- 
tate unless  made  so  by  statute.— In  re  Brandes' 
Estate  (Iowa)  954 ;    Iloyer  v.  Buchholz,  Id. 

XVm.  ASSIGNMENT. 

Action  by  assignee  on  appeal  bond,  we  Appeal 
and  Error,  ^  1244. 

XIX.  SUSPENSION,      ENTORCEMENT, 
AND  REVIVAI.. 

S  866.  A  district  conrt  in  which  the  tran- 
script of  the  judgment  of  another  district  court 
has  been  6\e<i  is  without  authority  to  revive 
the  judgment  under  Code  Civ.  Proc.  |473.— J.  1. 
Case  Threshing  Macb.  Co.  v.  Edmisten  (Neb.) 
891. 


XXI.  ACTIONS  ON  htdoioshts. 

(A)  Domeatlc  Jadsaaenta. 

{  921.  The  authority  of  an  attorney  to  set- 
tle judgments,  and  the  question  whether  there 
was  a  consideration  for  reducing  the  amount  of 
the  judgment  held  questions  of  fact. — Fetx  v. 
Leyendecker  (Mich.)  100. 

xxn.  vLSADma  anb  EvmEircE  or 

JUDGMENT  AS  E8TOPPEI.  OB 
DEFENSE. 

i  936.  Recitals  in  a  judgment  are  not  con- 
clusive nor  evidence  of  adjudication. — Kammsnn 
y.  Barton  (S.  D.)  416. 

JUDICIAL  DISCRETION. 

Admission   of  rebuttal   evidence,   see   Trial,   i 

63. 
Change  of  venae  in  criminal  prosecution,  see 

Criminal  Law,  |  121. 
Mandamus  to  control,  see  Mandamus,  {  28. 
Review  in  civil  actions,  see  Appeal  and  Error, 

a  943-984. 

JUDICIAL  NOTICE. 

In  civil  actions,  see  Evidence,  H  1-43L 

JUDICIAL  POWER. 

See  (Tonstitntlonal  Law,  H  6ft-74. 

JURISDICTION. 

JurUdietioH  of  particular  action*  or  pr^ 

ceedingt. 

See  Divorce,  H  124,  133;    Habeas  Corpus,  S 

48;  Mandamus,  {{  147-16& 
Drainage  proceedings,  see  Drains,  {  26. 
For  removal  of  officers,  see  Officers,  {  72. 
To  revive  judgment,  see  Judgment,  f  866. 

Special  juritdictiont  and  turitdictioH*  of  partic- 
ular ola»$e»  of  eourtt. 
See  Equity,  {  89. 
Appellate    jurisdiction,    see    Criminal   Law,   i 

1018. 
Particular  courts,  see  Courts. 

JURY. 

Custody  and  conduct,  see  Trial,  f  §  307,  314. 
Disqualification  or  misconduct  ground  for  new 

trial,  see  New  Trial,  S  44. 
Instructions  in  civil  actions,  see  Trial,  f|  186- 

296. 
Instructions  in  criminal  prosecutions,  see  Crim- 
inal Law,  ft  784-822. 
Questions  for  jury  in  civil  actions,  see  Trial, 

a  13^-145. 
Questions  for  jury  in  criminal  prosecutions,  see 

Criminal  Law,  i  762. 
Taking  case  or  question  from  jury  at  trial,  see 

TriJ,  |i   139-178. 
Verdict    in   civil    acti 

362. 
Verdict  in  criminal  prosecutions,  see  Criminal 

Law,  H  878,  883. 

II.  RIGBT  TO  TRIAI.  BT  JUBT. 

i  17.  The  allowance  of  extra  compensation 
to  an  administrator  l>eing  a  question  depending 
on  the  probate  judge's  discretion,  as  contem- 
plated by  Comp.  Laws  1897,  f  9438,  there  was 
no  error  in  not  permitting  a  jury  trial  on  ap- 

eal    presenting    tttat    single    question.— In    re 

'ischer's  Estate  (Mich.)  257. 

S  33.    Rev.  Code  Cr.  Proc.  (  303,  held  not 
violative  of  Const,  art.  6.  8  7,  guaranteeing  to 
arcnsed  a  speedy  public  trial  by  an  impartial ' 
Jury.— State  v.  Hayes  (S.  D.)  &'>2. 


actions,   see  Trial,   H   32.V 


11 


Twles,  divisions,  *  iwUbn  (|)  NUMBERS  In  this  Ind«.  t  D«c  *  Amsr.  Digs.  *  Rsportar  ladtssa 

Digitized  by  LjOOQ  l€ 


INDEX-DIGB8T. 


1201 


I  34.  Granting  motion  to  instruct  that  the 
only  qnestion  was  the  extent  of  plaintitTs  in- 
juries and  the  amount  of  damages,  held  errone- 
ous as  depriving  defendant  of  a  right  to  trial 
by  jury. — Umsted  v.  Colgate  Farmers'  Elevator 
Co.  (N.  D.)  390. 

IV.  SUMMONINO,  ATTENDAKOE,  DI8- 

CHAROEI  Am)   OOMFEN- 
SATIOH. 

f  70.  That  the  sheriff  was  a  witness  for 
the  state  against  accused  did  not  constitute  im- 
plied bias  under  Code  Cr.  Proc.  i  338,  disqual- 
ifying him  to  summon  a  new  jury  to  try  ac- 
cused.—State  T.  Hayes  (S.  D.)  662. 

S  70.  Denial  of  an  application  by  accused  to 
re-examine  the  sheriff  in  support  of  a  second 
objection  to  a  second  special  panel  drawn  by 
the  sheriff  to  try  accused  held  not  error.— 
State  V.  Hayes  (S.  D.)  052. 

I  70.  ▲  challenge  to  the  panel  by  accused 
haviug  been  allowed,  the  court's  order  that  the 
sheriff  forthwith  summon  24  citizens  to  act  as 
jurors  for  the  term  from  the  body  of  the  coun- 
ty held  expressly  authorized  by  Rev.  Code  Cr. 
Proc.  §  303.— State  v.  Hayes  (S.  D.)  652. 

I  70.  That  the  sheriff's  name  was  indorsed 
on  an  information  as  a  witness  for  the  state 
did  not  per  se  disqualify  bim  to  summon  a 
new  jury  to  try  accused. — State  v.  Hayes  (S. 
D.)  652. 

f  77.  A  juror  drawn  for  three  weelis  in  the 
district  court  who  serves  during  that  period 
can,  under  Comp.  St.  1909,  c.  28,  {  15,  recover 
for  all  the  days  of  said  term,  Sundays  except- 
ed, unless  excused  by  the  court.— Spalding  v. 
Douglas  County  (Neb.)  880. 

V.  OOMPETENOT  OF  JVBOBS.  OKAI.. 

I.EK6E8,  Ain>   OBJECTIONS. 

Review  of  discretionary  rulings  in  criminal 
proeecntion,  see  Criminal  Law,  {  1152. 

Review  of  rulings  on  challenges  as  dependent 
on  prejudicial  nature  of  error,  see  Criminal 
Law,  i  1166^. 

i  110.  In  condemnation  proceedings,  held  that 
the  railroad  company  could  not  complain  of 
a  statement  by  a  juror  in  the  jury  room,  where 
he  had  made  substantially  the  same  statement 
on  bis  voir  dire.— Beckman  v.  Lincoln  &  N.  W. 
R.  Co.  (Neb.)  994. 

I  110.  Accused  held  not  entitled  to  have  a 
special  jury  panel  summoned  by  the  sheriff 
quashed  on  the  ground  of  the  sheriff's  actual 
bias  against  him.— State  t.  Hayes  (S.  D.)  652. 

JUSTICES  OF  THE  PEACE. 

XV.  PBO0ES1TBE    IN  tlVIL   OASES. 

i  107.  Irregularity  of  adjournment  by  justice 
held  waived  by  defendant.— Bemstien  v.  Thayer 
(Mich.)  365. 

I  107.  An  adjournment  by  a  justice  of  the 
j>eace  until  a  certain  day  at  2  o'clock  sufficiently 
set  the  hoar  at  2  o'clock  p.  m.  of  that  day.— 
Bemstien  t.  Thayer  (Mich.)  365. 

V.  BEVIEW   OF  FBOOEEDINOS. 

(A)  Appeal  and  Brror. 

i  140.  Comp.  Laws,  {{  860,  861,  held  not 
to  cut  off  the  ri^ht  of  appeal  from  a  Justice's 
Judgment  on  which  execution  has  issued. — Pat- 
tittson  V.  Flayer  (Mich.)  215. 

i  140.  The  repeal  of  section  584  of  the  Code 
of  Civil  Procedure  (Laws  1905,  p.  657,  c.  174J, 
establishing   the   practice   on   error,   does   not 


preclude  review  of  final  orders  of  justices  of 
the  pence  and  other  inferior  tribunals  by  writ 
of  error.— Engles  v.  Morgenstern  (Neb.)  688. 

§  155.  The  district  court  cannot  obtain  ju- 
risdiction to  reverse  a  justice's  judgment  after 
six  months  from  its  rendition  by  issuing  a  nunc 
pro  tunc  summons  in  error  and  directing  serv- 
ice thereof.— Radii  r.  Sawyer  (Neb.)  980. 

!  155.  To  give  the  district  court  jurisdiction 
of  a  proceeding  in  error  from  a  justice's  judg- 
ment, held  that  proceedings  must  be  taken  with- 
in six  months  from  the  judgment- complained  of. 
—Radii  V,  Sawyer  (Neb.)  980. 

{  163.  Where  a  transcript  of  a  justice's  judg- 
ment in  the  city  of  Detroit  is  filed,  and  an  exe- 
cution issued  before  the  time  for  a  motion  for 
a  new  trial  under  Loc.  Acts  1903.  p.  549,  No. 
475,  g  21.  has  expired,  the  transcMpt  may  be 
vacated  by  an  appeal  under  such  act. — Pattin- 
son  V.  Flayer  (Mich.)  215. 

g  173.  Where  an  action  in  a  justice's  court 
was  against  several  defendants  jointly  on  their 
joint  agreement,  an  appeal  by  only  one  of  the 
defendants  to  the  circuit  court  did  not  author- 
ize a  trial  therein,  on  the  theory  of  an  individual 
liability  by  appellant ;  the  appeal  bringing  up 
the  case  for  trial  upon  the  issue  made  below. — 
Strohschein  v.  Kranich  (Mich.)  178. 

(B)  Certiorari. 

In  criminal  prosecutions,  see  Criminal  Law,  f 
1018. 

8  205.  A  certain  paper  held  not  a  modifica. 
tion  of  a  justice's  return  to  a  writ  of  certiorari. 
—Bemstien  v.  Thayer  (Mich.)  365. 

KNOWLEDGE. 

Actual  or  constructive  knowledge,  see  Notice. 

By  grantee  of  fraud  in  conveyance,  see  Fraud- 
ulent Conveyances,  §  165. 

By  servant  of  defect  or  danger,  see  Master  and 
Servant,  |  217. 

Of  defects  in  street  as  affecting  liability  fer  in- 
juries, see  Municipal  Corporations,  {  788. 

LACHES. 

Affecting  particular  riqhtt,  remedie*,  or  pro- 
ceedingt. 

By  or  against  personal  representative,  see  Ex- 
ecutors and  Administrators,  {  437. 

Condemnation  proceedings,  see  Eminent  Domain, 
i  108. 

Redemption  from  mortgage,  see  Mortgages,  t 
597. 

Rescission  of  contract,  see  Contracts,  |  270. 

Rescission  of  sale,  see  Sales,  {  126. 

UKES. 

See  Waters  and  Water  Courtses,  U  108,  114. 

LANDLORD  AND  TENANT. 

See  Use  and  Occupation. 

Adequacy  of  remedy  at  law  as  affecting  right 
to  relief  in  equity  for  use  and  occupation,  in- 
junction against  waste,  etc.,  see  Equity,  i  48. 

Railroad  leases,  see  Railroads,  §  134. 

XX.  LEASES  AND  AOBEEMENTS  IN 
OENEBAX.. 

(B)  Coastmotloa  and  Operation. 

{  37.  Statement  in  the  habendum  of  lease, 
repugnant  to  the  term  granted,  held  void. — 
Munzer  v.  Parker  (Minn.)  375. 


For  cases  la  Dec.  Dig.  *  Amer.  Digs.  1907  to  date  A  Indexes  see  lame  topic  *  ■action  (D  NUMBER 
122N.W.-76 


Digitized  by 


Google 


1202 


122  NORTHWESTERN  REPORTER; 


nX.  rAHSLOBD'S  TITUB  AMD  BE- 
VERSION. 

(B)  Batoppel  of  Tenant. 

I  61.  A  tenant  cannot  deny  his  landloid's  ti- 
tie  daring  the  tenancy,  nor  require  a  hostile  ti- 
tle to  the  same,  while  the  relationship  contin- 
ues.— Green  Bay  &  Mississippi  Canal  Co.  T.  Te- 
lulah  Paper  Co.  (Wis.)  1062. 

IV.  TERMS   FOR  TEARS. 

(D)  Termlnatlan. 

Requirements  of  statute  of  frauds  as  to  Surren- 
der, see  Frauds,  Statute  of,  {  189. 

Vn.  PREMISES  AND  ENJOVMEWT 
AND   USE  THEREOF. 

(D)  Repairs,  Insnranoe,  and  Improve- 
ments. 

8  152.  Lease  considered,  and  held,  that  it 
was  not  a  condition  precedent  that  the  repair  of 
the  furnace  by  the  lessor  should  be  made  by  a 
person  named  and  no  one  else. — Munzer  t.  Park- 
er (Minn.)  375. 

Vm.  RENT  AND  ADVANCES. 

Rights  of  purchaser  of  tax  title,  see  Taxation. 
I  739. 

(B)  Aetiona. 

I  219.  To  support  an  action  for  rent,  the 
relation  of  landlord  and  tenant  must  hav*  ex- 
isted.—Cavett  V.  Graham  (Neb.)  846. 


UNDS. 

Se«  Public  Lands. 

LARCENY. 

See  Bimbesxiement ;    False  Pretenses. 

n.  PROSECUTION  AND  PUNISH- 
MENT. 
(B)  Bvldeace. 

f  64.  In  a  prosecution  for  larceny  of  cattle, 
the  fact  of  the  possession  of  defendant  of  the 
cattle  of  prosecuting  witness  may  be  proved  by 
circumstantial  evidence.— State  ▼.  Clark  (Iowa) 
957. 

I  64.  In  a  prosecution  for  the  larceny  of  cat- 
tle, it  is  not  essential  that  all  the  lost  cattle  be 
identified  in  the  possession  of  defendant,  either 
by  direct  or  circumstantial  evidence.— State  v. 
Glaik  (Iowa)  957. 

(O)  Trial  and  ReTlevr. 

Instructions  as  to  circumstantial  evidence,  see 
Criminal  Law,  {  784. 

LAW  OF  THE  CASL 

Decision  on  appeal,  see  Appeal  and  Brror,  {{ 
1097,  1195.  »"- 

LEASE. 

See  Landlord  and  Tenant. 

LEGACIES. 

See  Wills. 

LEGISLATIVE  POWER. 

See  Constitutional  Law,  H  50,  61. 

LETTERS  PATENT. 

For  public  lands,  see  Public  Lnnds,  §|  113,  116. 


LEX  LOCI. 

Insurance  policy,  see  Insurance,  |  147. 

LIBEL  AND  SLANDER. 

n.  PRIVII.EOED    COMMUNICATIONS, 
AND  MAXJOE  THEREIN. 

I  48.  In  a  libel  action,  the  article  com- 
plained of  AeM  not  qualifiedly  privilefed.— 
Lawrence  v.  Herald  Pub.  Co.  (Mich.)  10»4. 

I  48.    The  public  conduct  of  public  men  is 

Eroperly    subject    to    legitimate    discussion.— 
Awrence  v.  Herald  Pub.  Co.  (Mich.)  1084. 

IV.  ACTIONS. 

(B)  Parties,  PrellmtaarT'  Proeeedlnc*, 
and  Pleadlns. 

f  98.  In  an  action  for  libel,  the  court's  re- 
fusal to  allow  plaintifE  a  trial  amendment,  ex- 
cept on  condition  of  a  continuance,  held  a  prop- 
er exercise  of  discretion.— (VNeil  v.  Adams 
(Iowa)  976. 

I  100.  Where  a  petition  alleged  the  circula- 
tion of  a  libel  in  S.  and  vicinity,  evidence  of  its 
circulation  in  G.  held  inadmissible. — O'Neil  v. 
Adams  (Iowa)  976. 

(O)  BTldeaee. 

Best  and  secondary  evidence,  see  Evidence,  -  K 

167,  186. 
Docnmentary  evidence,  see  Evidence,  i  332. 

S  109.  Defendant's  purpose  in  publishing  al- 
leged libelous  articles  held  admissible  to  estab- 
lish defendant's  plea  of  privilege.— O'Neil  v.  Ad- 
ams (Iowa)  976. 

f  110.  Where  defendant  pleaded  and  proved 
that  plaintiff's  character  in  S.,  where  the  alleged 
libel  was  published,  and  vicinity,  was  bad,  evi- 
dence that  his  character  in  C.  where  he  resided 
was  good  was  inadmissible.— O'Neil  v.  Adams 
(Iowa)  976. 

{  110.  In  an  action  for  libel,  evidence  that 
citizens  requested  plaintiff  to  quit  coming  to 
town  on  the  business  he  was  engaged  in,  and 
that  he  declined,  held  admissible.— OTfeil  v.  Ad- 
ams (Iowa)  976. 

i  110.  In  an  action  for  libel,  evidence  tend- 
ing to  sustain  the  charge  that  plaintiff  was  en- 
gaged in  an  illegal  avocation,  and  to  justify  de- 
fendant's characterization  of  him,  held  admissi- 
ble.—O'Neil  V.  Adams  (Iowa)  976. 

I  110.  In  an  action  for  libel,  evidence  held 
admissible  to  prove  the  truth  pleaded  in  justi- 
fication.—O'Neil  V.  Adams  (Iowa)  976. 

(D)  Damases. 

f  118.  Plainti^  could  not  recover  for  loss  of 
alleged  sales  of  intoxicating  liquors,  resulting 
from  defendant's  libelous  publications,  where 
the  sales,  if  made,  would  have  been  illegal. — 
O'Neil  V.  Adams  (Iowa)  976. 

(B)  Trial,  Jadsnient,  and  Review. 

$  122.  In  an  action  for  libel,  an  instmctioa 
that  the  burden  of  proof  was  on  defendant  was 
tantamount  to  a  ruling  that  the  articles  were 
libelous  per  se.— O'Neil  v.  Adams  (Iowa)  976. 

{  123.  Whether  the  retraction  of  a  Ubel 
complied  in  certain  respects  with  Comp.  Laws 
1897,  §  10,425,  held  for  the  jury.— Lawrence 
V.  Herald  Pub.  Co.  (Mich.)  1084. 

LICENSES. 

I.  FOR  OCCUPATIONS  AND  PRIVX- 
I.EOES. 

For  sale  of  Intoxicating  UquoiB,  see  Intoxicating 
Liquors,  ${  46-95. 


Topics,  divlsiona,  le  secUon  (i)  NUUBERS  U  this  Index,  *  Dec.  A  Amsr.  Digs.  *  Reporter  Indexss  scree 

Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1203 


liability  of  officer  for  arrest  without  warrant 
for  ntle  of  meat  without  license,  see  False  Im- 
prisonment, §  7. 

H.  IN  BESPECT  TO  REAX.  PBOPEBTT. 

Injnries  to  licensees,  see  Railroads,  {|  275-282. 
To  cut  timber,  see  Logs  and  Logging,  {  4. 

LIENS. 

See  Judgment,  f  7S1;    Mechanics'  Liens. 
Effect  of  registration  of  land  title  on  right  to 

enforce  liens,  see  Records,  j  9. 
Mortgage,  see  Mortgages,  f  181. 

LIFE  ESTATES. 

See  Dower;  Remainders. 
Creation  by  will,  see  Wills,  {  614. 

I  16.  As  between  a  life  tenant,  entitled  to 
the  income  of  corporate  stock,  and  a  remainder- 
man, dividends  declared  out  of  a  surplus  ac- 
comnlated  after  the  owner's  ^death  hetii  to  go 
to  the  life  tenant. — Goodwin  y.  McGanghy 
(Minn.)  6. 

I  19.  Where  no  requirement  is  contained  in 
the  instrument  creating  a  life  estate,  the  life 
tenant  is  not  bound  to  insure  the  interest  of 
remaindermen  in  the  premises,  but  either  party 
may  insure  for  hia  own  lienefit— Smith  v.  CSam- 
eron  (Mich.)  584. 

I  23.  A  life  tenant's  attempted  conveyance  of 
the  fee  held  insufficient  to  bar  contingent  re- 
mainders which  did  not  vest  in  the  life  ten- 
ant's heirs  until  his  death.— Westcott  t.  Meeker 
(Iowa)  964. 

LIMITATION  OF  ACTIONS. 

See  Adverse  Possession. 

Particular  action*  or  prooeedinga. 
By  remaindermen,  see  Remainders,  {  17. 
For  injuries  caused  by  dam  in  navigable  stream, 

see  Navigable  Waters,  §  39. 
To  confirm  or  try  tax  title,  see  Taxation,  f  805. 
To  correct  court  records,  see  Courts,  §  116. 

X.  STATTTTES  OF  XJMTTATION. 

(B)  Uanltationa  Applicable   to   Partlenlar 
Aotloaa. 

{  21.  A  grantee  of  mortgaged  property  who 
assumes  the  debt  by  a  clause  in  the  deed  held 
a  simple  contract  debtor  whose  obligation  is 
within  the  six-year  statute  of  limitationa.— Hol- 
lister  y.  Strahon  (S.  D.)  604. 

i  25.  A  mortgage  not  under  seal  is  barred 
in  10  years  unless  the  statute  is  in  some  manner 
tolled.— Kammann  v.  Barton  (S.  D.)  416. 

i  88.  Under  Acts  6th  Gen.  Assem.  Extra 
SeM  1856,  p.  49.  c.  17,  S  22 ;  AcU  23d  Gen. 
Asaem.  1890,  pp.  -23,  24,  c.  14,  H  11>  12 ;  Acts 
25th  Gen.  Assem.  1894,  pp.  21,  22,  c.  7,  U  11, 
12 — ^liens  for  assessments  for  a  street  improve- 
nient  held  to  exist  until  paid.— Fisk  y.  City  of 
Ke<d(uk  (Iowa)  896. 

n.  OOMFITTATION   OF  PERIOD   OF 
ZJMITATION. 

(A)  Aeenial  at  Hlsbt  of  Aetloa  or  De- 

fense. 

By  remaindermen,  see  Remainders,  S  17. 

(B)  Performance  of  Condition,  Demand, 

and  Notlee. 

I  66.  Under  Rev.  Code  Civ.  Proc.  S  60,  subd. 
2,  and  Rev.  Pol.  Code,  {  1205,  an  action  against 
a  county  to  recover  city  taxes  illegally  withheld 
by  the  county  treasurer  as  a  collection  fee 
mast  be  brought  within  six  years  of  the  time 
when  they  should  be  paid  over  by  the  county 


treasurer  to  the   d^.— City  of  Centerville  v. 
Turner  Ck>unty  (S.  D.)  330. 

(O)  Peraoaal   Dlaabllitles   and   Prlyllesea. 

I  72.  Acts  22d  Gen.  Assem.  1888,  p.  31,  c. 
25,  as  amended  by  Acts  26th  Gen.  Assem.  1896, 
p.  67,  c.  63,  incorporated  in  Ciode  1897,  |  8447, 
relating  to  the  limitations  of  actions,  hdd  an 
exception  to  the  general  limitation  statute  con- 
tained in  paragraph  3,  |  3447,  so  that  section 
3453,  extending  tbe  times  limited  for  actions 
in  favor  of  minors,  does  not  apply,  and  an  in- 
fant injured  on  defective  sidewalk  must  sue 
within  three  months,  when  no  notice  has  been 
served  on  the  municipality. — Gushing  v.  City 
of  Winterset  (Iowa)  915. 

IV.  OPERATION  AND  EFFECT   OF 

BAR  BT  XJMITATION. 

I  165.  Grantee  of  a  mortgagor  cannot  main- 
tain action  to  cancel  a  sheriff's  certificate  and 
deed  as  against  mortgagee  in  possession  with- 
out paying  the  deed. — Boschker  y.  Van   Beek 

(N.  D.)  sm 

V.  PIJEADIHO,  EVIDENCE,  TBIAX^ 

AND  BEVIEW. 

Review  on  issues  of  defense  of  limitations  as  de- 
pendent on  presentation  in  lower  court,  see 
Appeal  and  Error,  g  173. 

f  195.  The  burden  is  on  one  relying  on  the 
tolling  of  the  statute  of  limitations  by  the  ab- 
sence of  the  adverse  party  from  the  state  to 
show  the  facts.— Kammann  y.  Barton  (S.  D.) 
416. 

LIMITATION  OF  INDEBTEDNESS. 

Of  city,  see  Munidjpal  Goiporations,  {  863. 

LIMITATION  OF  LIABILITY. 

Of  telegraph  company,  see  Telegraphs  and  Tel- 
ephones, i  54. 

LIQUOR  SELLING. 

See  Intoxicating  Liquors. 

LISTS. 

Of  taxable  property  by  taxpayer,  see  Taxation, 

LITTORAL  RIGHTS. 

See  Navigable  Waters,  H  89,  44. 

LIVE  STOCK. 

Injuries  from  operation  of  railroads,  see  Rail- 
roads, S  412. 

LOAN  COMPANIES. 

See  Banks  and  Banking,  {{  311,  814. 

LOCAL  LAWS. 

See  Statutes,  {g  79,  80. 

LOCAL  OPTION. 

Traffic  in  intoxicating  liquors,  see  Intoxicating 
Ljquors,  i  S3. 

LODGING. 

Of  guardian  of  insane  person  as  cbarae  against 
estate  of  ward,  see  Insane  Persons,  {65. 


Vttr  eases  in  Dee.  Dig.  t  Amer.  Digs.  UOT  to  data  ft  Indezra  see  same  toplo  *  seetioaO)  KVMJ 

Digitized  by  VjOCJ 


1201 


122  NORTHWESTBBN  RBPORTEB. 


LOGS  AND  LOGGING. 

Capadty  of  stream  for  floating  logs  as  test  of 

naTigabUi^,  see  NaTigabie  Waters,  i  1. 
Lognng  railroads  as  employers,  assumption  of 

rluc  from  use  of  defective  couplers,  see  Master 

and  Servant,  S  2(M. 
Logging  railroads,  statatoir  regulations  as  to 

couplers  on  cars,  see  Railroads,  {  229. 
Recovery  of  timber  wrongfully  converted,  see 

Replevin,  f  72. 

I  3.  A  deed  of  standing  tlmt>er  construed.— 
Brets  T.  B.  Connor  Co.  (Wis.)  717. 

S  4.  The  express  assent  of  a  joint  tenant 
that  another  may  cut  and  remove  timber, 
though  not  in  writing,  and  void  as  a  sale,  held 
a  license,  and  a  complete  protection  to  licensee 
vntil  revoked. — St,  John  v.  Sinclair  (Minn.) 
164. 

LOSS. 

Of  assets,  liability  of  administrator,  see  Execu- 
tors and  Administrators,  §  118. 

LUMBER. 

See  Logs  and  Logging. 

LUNATICS. 

See  Insane  Persons. 

MACHINERY. 

Liability  of  employer  for  defects,  see  Master 

and  Servant,  fi  101-124. 
Production  and  use  of  electricity,  see  Electric- 

''-'  MALICE 

See  Libel  and  Slander,  {  4& 

MALICIOUS  PROSECUTION. 

See  False  Imprisonment. 

n.  WANT  OF  FROBABI.E  OA178E. 

Elffect  of  subsequent  decision  holding  invalid 
law  under  which  prosecution  is  instituted,  see 
Statutes,  I  63. 

8  18.  In  view  of  Comp.  Laws  1897, 1  11,424, 
and  Pnb.  Acts  1899,  p.  455,  No.  2G8.  i  6,  held 
that  a  certificate  of  the  dairy  and  rood  com- 
missioner showing  milk  to  be  adulterated,  in 
the  absence  of  information  and  belief  to  the 
contrary,  justifies  au  oIBcer  in  making  a  com- 

glaint  against  the  vendor  thereof.— Birdsall  v. 
mith  (Mich.)  626. 

S  22.  In  actions  for  malicious  prosecution  and 
false  imprisonment,  proof  that  defendant  as 
prosecuting  witness  in  good  faith  fully  and  fair- 
ly stated  all  of  the  material  facts  within  Ms 
knowledge  to  the  prosecuting  oflicer  and  acted 
on  his  advice  establishes  a  case  of  probable 
cause.— Smith  v.  Xolan  (Mich.)  513. 

f  22.  An  action  for  malicious  prosecution, 
based  on  advice  of  county  attorney,  after  full 
disclosure  of  the  facts,  held  not  maintainable. — 
Baldwin  v.  Capitol  Steam  Laundry  Co.  (Minn.) 
460. 

I  24.  A  conviction  before  a  justice  of  the 
peace,  thoug:h  afterward  set  aside  upon  appeal, 
was  conclusive  proof  of  probable  cause  for  ar- 
resting plaintiff,  unless  the  conviction  was  pro- 
cured by  unlawful  means,  so  as  to  prevent 
plaintiff  from  recovering  in  an  action  for  mali- 
cious prosecution. — tSchnider  v.  Montross  (Mich.) 
534 

V.  ACTIONS. 

{  55.  Pleas  of  the  general  issue  without  no- 
tice  of   defenses,    in    an    action    for   malicious 


prosecution^  will  support  proof  to  contravene 
the  allegation  of  want  of  probable  cause. — 
Birdsall  v.  Smith  (Mich.)  626. 

I  64.  In  a  counterclaim  for  the  malicious 
sumg  out  of  an  attachment,  evidence  held  to 
show  that  plaintiff  by  his  agent  knew  that  the 
charge  on  which  the  attachment  was  obtained 
was  untrue. — International  Harvester  Co.  of 
America  v.  Iowa  Hardware  Co.  (Iowa)  951. 

i  68.  Facts  held  to  show  that  an  allowance 
of  $500  as  exemplary  damages  for  the  malicious 
suing  out  of  an  attaJchment  was  not  excessive- 
International  Harvester  O.  of  America  r. 
Iowa   Hardware   Co.   (Iowa)   951. 

{  68.  Where  an  attachment  is  sued  oat  for 
the  purpose  of  harassing  the  defendant,  the 
jury  nas  a  wide  discretion  in  the  allowance  of 
exemplary  damages.— International  Harvester 
Co.  of  Ajnerica  t.  Iowa  Hardware  Co.  (Iowa) 
961. 

S  68.  A  plaintiff  in  attachment  held  to  have 
sued  out  the  attachment  maliciously,  where  his 
agents  attempted  to  coerce  defendant  into  pay- 
ment of  a  debt.— International  Harvester  Co. 
of  America  v.  Iowa  Hardware  Co.  (Iowa)  951. 

{  68.  What  constitutes  malice  necessary  to 
sustain  the  allowance  of  exemplary  damages 
for  the  malicious  suing  out  of  an  attachment, 
stated.— International  Harvester  Co.  of  Amer- 
ica v.  Iowa  Hardware  Co.  (Iowa)  951. 

§  68.  Before  exemplary  damages  can  be  al- 
lowed for  wrongfully  suing  out  an  attachment, 
actual  damages  must  be  shown. — International 
Harvester  Co.  of  America  v.  Iowa  Hardware 
Co.   (Iowa)  951. 

{  69.  Facts  held  to  show  that  an  allowance 
of  $300  for  attorney's  fees  in  an  action  for  the 
malicious  suing  out  of  an  attachment  was  not 
excessive. — International  Harvester  Co.  of 
America  v.  Iowa  Hardware  Co.  (Iowa)  951. 

I  71.  Where,  in  an  action  for  malicious 
prosecution,  there  is  no  conflict  on  the  issue  of 
probable  cause,  it  is  a  question  for  the  court. 
—Birdsall   v.   Smith   (Mich.)   626. 

{  71.  Where  the  facts  are  not  disputed,  the 
question  of  probable  cause  is  one  for  the  court. 
—Baldwin  v.  Capitol  Steam  Laundry  Co.  (Minn.) 
460. 

I  72.  An  instruction  on  a  counterclaim  for 
the  malicious  suing  out  of  an  attachment  held 
not  misleading. — ^International  Harvester  Co. 
of  America  v.  Iowa  Hardware  Co.  (Iowa)  96L 

MALPRACTICE. 

Liability  of  physician  or  surgeon  for,  see  Physi- 
cians and  Surgeons,  {§  15,  16. 

MANDAMUS. 

I.  NATVRE  AND  OROUNDS  IN  OEN- 
EBAIu 

t  S.  Quo  warranto,  not  mandamus,  is  the 
proper  remedy  to  determine  the  title  to  and 
possession  of  a  public  office,  and  a  claimant 
cannot  resort  to  mandamus  for  relief.— lA 
Chance  t.  Machia  (Mich.)  271. 

I  3.  Mandamus  will  not  issue  to  cancel  a 
personal  tax  judgment  because  of  failure  to 
serve  notice  on  the  judgment  debtor. — State  v. 
District  Court  of  the  Fourth  Judicial  Dist 
(Minn.)  314. 

i  10.  Relator's  right  to  have  the  required  act 
performed  by  respondent  and  respondent's  duty 
to  perform  it  at  the  time  and  in  the  manner  de- 
manded must  concur  before  mandamus  will  is- 
sue to  compel  the  act. — State  v.  Waggenson 
(Wis.)  726. 


Topic*,  dlvliiona,  *  section  (1)  NUH8SRS  la  tbti  Index,  *  Dec.  *  Amwr.  Digs,  *  RaDorMr  Indaxts  sgres 


:tsi 

Digitized  by  V^OOQ  l€ 


INDEX-DIGEST. 


1205 


{  22.  Mandamns  will  not  be  granted  to  com- 
pel the  performance  of  public  duties  by  public 
officers,  except  where  a  specific  right  is  in- 
volved.—Wilson  V.  Cleveland  (Mich.)  284. 

{  23.  A  private  citizen  and  property  owner 
injured  by  the  violation  of  the  liqnor  law  by 
an  adjoining  saloon  keeper  held  not  entitled 
to  mandamus  on  his  own  relation  to  compel 
the  police  commission  of  the  city  to  enforce  the 
Uquor  law.— Oowan  v.  Smith  (Mich.)  286. 

JX.  STTBJEOTS   Ain>  FTJKPOSES   OF 
HTJT.TEF. 

(A)  Aeta  and  Proeeedtasa  of  Oo«rta« 
Jvdcea,  and  Judicial   Oflleera. 

f  28.  While  mandamus  may  be  invoked  to 
compel  the  discretion  of  a  court,  body,  or  of- 
ficer in  a  judicial  or  quasi  judicial  act  to  be  ex- 
ercised, it  does  not  lie  to  control  or  review  the 
exercise  of  the  discretion.— State  v.  Dahl  (Wis.) 
748. 

i  37.  Mandamus  does  not  lie  to  compel  the 
trial  judge  to  grant  a  temporary  injunction  in 
a  suit  to  restrain  a  city  from  continuing  to 
discbarge  its  sewage  into  a  river. — Wyoming  Tp. 
T.  Stuart  (Mich.)  214. 

<B)  Aeta   and  Proeeedlmca  of  Pnblte  OIB- 
eera  and  Boarda  and  Mnnlclpalltiea. 

S  66.  The  police  commissioner  of  a  city  is 
not  one  of  the  officers  named  by  Gomp.  Otws 
1807,  i  11,334,  who  are  required  to  command 
a  dispersal  of  persons  to  the  number  of  30  or 
more  riotously  or  tumultously  assembled,  and 
he  should  not,  therefore,  be  compelled  by  man- 
damus to  take  such  action.— Yerkes  v.  Smith 
(Mich.)  223. 

{  81.  Mandamus  will  not  lie  to  compel  the 
attendance  of  a  quorum  of  a  village  council. — 
Wilson  V.  Cleveland  (Mich.)  284. 

{  99.  Mandamus  will  not  lie  to  compel  public 
officials  to  enforce  the  criminal  law.— Oowan  t. 
Smith  (Mich.)  286. 

§  109.  The  liability  of  a  township  to  an 
undisclosed  i»1ncipal  of  one  who  contracts  to 
per/orm  public  work  may  not  be  tried  in  man- 
damus by  the  holder  of  a  warrant,  issued  to 
the  contractor  pursuant  to  the  contract  and 
the  law,  to  compel  the  disbursing  officers  of 
the  township  to  pay  the  warrant. — Vllmau  v. 
Sandell  (Mich.)  1076. 

{  109.  Mandamus  held  not  to  lie  to  compel 
the  disbursing  officers  of  a  township  to  pay  a 
warrant  to  the  Indorsee  thereof,  after  a  judg- 
ment against  the  town  as  a  garnishee  of  tlie 
payee  named  in  the  warrant. — UUman  v.  San- 
dell (Mich.)  1076. 

i  109.  Where  a  demand  against  a  munici- 
pal corporation  is  liquidated  and  evidenced  by 
a  proper  warrant  on  a  proper  officer,  requiring 
payment,  and  there  are  funds  to  pay  it,  manda- 
mus lies  to  compel  payment.— Ullman  v.  San- 
dell (Mich.)  1076. 

m.  JITBI8DI0TIOH,      PROCEEDIITOS, 
AND   Ri:i<IEF. 

Amendment  as  to  parties,  see  Parties,  {  95. 

{  147.  The  mayor  of  a  village  held  without 
specific  capacity  to  institute  mandamus  proceed- 
ings against  members  of  the  village  council 
to  compel  attendance  at  meetings.- Wilson  v. 
Cleveland  (Mich.)  284. 

J  154.  Where  the  duty  to  be  enforced  is  of  a 
private  nature,  the  petition  for  mandamus  must 
show  that  a  demand  has  been  made  upon  re- 
spondent for  substantiallv  the  particular  thing 
to  be  done  of  the  person  Sound  to  do  it,  and  his 
refusal.— State  v.  Waggenson  (Wis.)  728. 

I  154.,  Where'  the  right  to  have  an  act  done 
at  the  time  and  in  the  manner  demanded  by  re- 


lator in  mandamus  is  dependent  upon  some  other 
act  having  been  done  or  upon  the  existence  of 
some  condition  precedent  the  petition  must  af- 
firmatively show  the  ^rformancc  of  such  pre- 
liminary act  or  the  existence  of  such  condition. 
—State  V.  Waggenson  (Wis.)  726. 

f  154.  Where  a  petition  for  mandamus  to 
compel  commissioners  to  repair  a  ditch  did  not 
show  that  respondents  had  available  funds  with 
which  to  make  repairs,  but  showed  that  the 
only  way  to  obtain  such  funds  was  for  them  to 
file  an  annual  report  as  required  by  statute 
(Laws  1905,  ^.  687,  c.  419),  which  had  not  been 
done,  the  writ  will  not  issue.— State  v.  Wag- 
genson (Wis.)  726. 

{  164.  The  Supreme  Court,  in  mandamus  to 
compel  a  circuit  judge  to  vacate  an  order  dis- 
solving a  temporary  Injunction,  must  accept  the 
return  of  the  judge,  averring  that  be  exerpised 
discretion  in  dissolving  the  injunction. — Mc- 
Qnater  v.  Mandell  (Mich.)  368. 

I  168.  It  is  only  when  it  appears  by  the 
clearest  possible  evidence  that  an  executive  of- 
ficer has  wholly  refused  to  exert  his  jurisdiction 
or  to  exercise  any  discretion  whatever  that  man- 
damus will  lie  to  compel  him  to  act— State  v. 
Rose  (W^is.)  751. 


MANDATE. 


See  Mandamns. 


MANSLAUGHTER. 

See  Homicide,  f  31. 

MAPS. 

In  proceedings  in  application  to  establish  high- 
way, see  Highways,  §  50. 

Of  land  for  which  appropriation  of  water  is 
claimed,  see  Waters  and  Water  Courses,  1 12,' 

MARK. 

Signature  to  statement  of  consent  to  sale  of  liq- 
uors, see  Intoxicating  Liquors,  |  66. 

MARKET  VALUE 

Relevancy  of  evidence  to  show,  see  Evidence,  S 
113. 

MARRIAGE. 

See  Divorce;  Husband  and  Wife. 

MARRIED  WOMEN. 

See  Husband  and  Wife. 

MASTER  AND  SERVANT. 

See  Work  and  Ijabor. 

•       X.  THE  BELATIOH. 
(C)  Teratlnatlon  and  Dlaebarso* 

Discharge  of  insurance  agent,  see  Insurance,  I 

U.   8EBVI0E8    AND    COMPENSATION. 

(B)  'Wasea  and  Other  Remnneratlon. 

f  80.  In  an  action  for  serf'ices  rendered  as 
mining  engineer  and  assayer,  evidence  held  to 
support  findings  for  plaintiff.— Empson  v.  Re- 
liance Gold  Mining  Co.  (S.  D.)  34^ 

m.  MASTER'S    i:.IABII.ITT    FOR    IN- 
JURIES  TO    SERVANT. 

(A)  Nature  and  Extent  In  General. 

Delegation  of  duties  by  charitable  institution, 
see  Charities,  i  45. 


For  eases  In  Dec.  Dig.  Jb  Amsr.  Digs.  1907  to  data  ft  Indaze*  see  ume  topic  *  s«ctlon.(i)  NmiBBja  . 

Digitized  by  VjOOQTC 


1206 


122  NORTHWESTERN  REPORTER. 


S  88.  Relation  of  majster  and  servant  held 
not  suspended  during  noon  hour,  where  the  mas- 
ter expects  and  invites  the  servant  to  remain 
on  the  premises. — Thomas  v.  Wisconsin  Cent. 
Ry.  Ck>.  (Minn.)  456. 

f  88.  A  third  person,  injured  by  the  negli- 
gence of  the  servants  of  a  railway  company 
while  assisting  the  conductor,  held  not  entitled 
to  recover  on  the  theory  that  he  was  acting  as 
defendant's  servant.— HendrickBoa  v.  Wiscon- 
sin Cent  Ry.  Co.  (Wis.)  758. 

{  95.  An  occupation  held  within  Pub.  Acts 
1901,  p.  167,  No.  113,  i  3,  prohibiting  the  em- 
ployment of  one  under  16  in  a  factoi7  at  em- 
Sloyment  dangerous  to  life  or  limb.— Dalm  ▼. 
Sryant  Paper  Co.  (Mich.)  257. 

S  96.  An  instruction  defining  proximate 
cause  fteW  proper. — Monaghan  v.  Northwestern 
Fuel  Ck).  (WisS  1066. 

(B)  Toola,   MaeMnerj',  AppUanees,  sad 
Plaeen  (or  'Woric 

f  101.  Master's  obligation  to  furnish  safe 
place  in  which  to  work  defined.— Thomas  v.  Wis- 
consin Cent.  Ry.  Co.  (Minn.)  466. 

§  101.  Master  held  required  to  protect  his 
servants  against  ind^endent  contractor's  ncgli- 
gence.— Thomas  ▼.  Wisconsin  Cent.  Ry.  Co. 
(Minn.)  45a 

i  107.  An  air  pump  while  being  unloaded 
ttbxsi  a  railroad  car  held  not  an  appliance  with- 
in the  rule  requiring  the  master  to  exercise  rea- 
sonable care  to  furnish  his  servants  with  rea- 
sonably safe  appliances  to  carry  on  the  busi- 
ness.—Westlake  V.  Murphy  (Neb.)  684. 

f  124.  An  implement  having  a  wooden  han- 
dle about  three  feet  long,  inserted  in  an  iron 
cross  head,  having  a  hammer  face  on  one  end 
and  a  pick  point  on  the  other  end,  held  a  sim- 
ple tool,  which  the  master  need  not  inspect. — 
Lehman  v.  Chicago,  St  P.,  M.  &  O.  Ry.  Co. 
(Wis.)  1059. 

(C)    Methods  of  Work,  Rales,  aad  Orders. 

f  137.  A  train  dispatcher  ordering  a  con- 
ductor to  rnn  a  train  over  the  main  line  held 
negligent  rendering  the  railroad  liable  for  the 
death  of  the  engineer  in  a  collision. — Dugan  v. 
Boyne  City,  G.  &  A.  R.  O).  (Mich.)  1094. 

<D)  'Waralns  aad  lastraotlnv  Berraatt 

(  157.  A  master  was  not  required  to  give 
special  instnictions  to  a  workman,  unless  there 
was  something  peculiar  about  the  machine. — 
Sabin  V.  Northwestern  Leather  Co.  (Mich.)  300. 

OB)  FelloTV  Servaats. 

I  180.  Iron  mining  company,  operating  a 
railroad  two  miles  in  length  in  connection  with 
its  business,  held  within  the  statute  abrogating 
the  fellow-servant  rule.— Gllnes  v.  Oliver  Iron 
Mining  Co.  (Minn.)  161. 

I  186.  A  miner  and  a  trammer  held  fellow 
servants. — Karppinen  v.  Tamarack  Mining  Co. 
(Mich.)  433. 

(  185.  Delegation  to  employ^  of  eimnloyer's 
duty  to  protect  employ^  held  not  to  relieve  em- 
ployer.- Anderson  v.  Pittsburg  Coal  Co.  (Minn.) 

S.  190.  Defendant's  master  mechanic  and 
plaintiff  held  fellow  servants,  so  that  defend- 
ant was  not  responsible  for  the  mechanic's  as- 
surance to  plaintiff  that  the  machinery  would 
not  start  while  he  was  working  thereon. — Max- 
weU  V.  Elk  Cement  &  Lime  Co.  (Mich.)  225. 

I  190.  The  tender  of  a  machine  in  a  paper 
mill  held  not  the  fellow  servant  of  a  winder- 
boj.— Dalm  v.  Bryant  Paper  Co.  (Mich.)  257. 

§  190.  An  employ^,  charged  with  the  duty  of 
giving  warning,  held  a  vice  principaJ. — Ander- 
son V.  Filtsburg  Coal  Co.  (Minn.)  784. 


i  190.  Hatch  tender's  failure  to  warn  a  coal 
heaver  before  a  coal  budtet  was  lowered  held 
the  negligence  of  a  vice  principal. — ^Anderson  t. 
Pittsburg  Coal  Go.  (Minn.)  794. 

I  196.  Injury  to  a  workman  unloading  a 
railroad  car  under  the  direction  of  a  common 
officer  heUt  not  to  render  the  master  liable; 
the  injury  being  caused  by  the  negligence  of 
another  competent  fellow  servant. — ^Westlake 
V.  Murphy  (Neb.)  684. 

(F)  Rislca  Aaaamed  b]r  Servaat. 

{  203.  The  doctrine  of  assumed  risk  is  based 
on  implied  contract,  and  is  independent  of  the 
negligence  of  the  employer  or  the  servant's 
contributory  negligence. — Brouseau  v.  Kellogg 
Switchboard  &  Supply  Co.  (Mich.)  620. 

{  204.  A  logging  train  conductor  injured 
while  coupling  cars  having  link  and  pin  cou- 
plings, one  of  which  was  higher  than  permitted 
by  Pub.  Acts  1907,  p.  303,  No.  234,  where  au- 
tomatic couplings  were  not  used,  did  not  as- 
sume the  nsk  of  injury.— Bctterly  v.  Boyne 
City,  G.  &  A.  R.  Co.  (Mich.)  635. 

I  205.  A  telephone  employ^,  engaged  to  lo- 
cate defects  in  the  operation  of  the  line,  was 
not  concerned  with  the  stat6  ofpreservation  in 
which  the  jpoles  then  were. — ^Holden  v.  Gary 
Telephone  Co.  (Minn.)  101& 

S  213.  An  employ^  repairing  a  bridge  as- 
sumes all  risks  ordinarily  present  in  such  dan- 
gerous operations.— McPherson  v.  Great  North- 
ern Ry.  Co.  (Wis.)  1022. 

{  217.  In  an  action  for  injuries  to  a  serv- 
ant, evidence  held  to  show  assumption  of  risk. 
— Enelund  v.  Minneapolis,  St.  P.  &  S.  S.  H. 
Ry.  Co.  (Minn.)  454. 

i  217.  A  railroad  engineer  tieUt  Justified  in 
taking  much  greater  risks  than  employes  in 
other  occupations  without  forfeiting  his  right 
of  action  for  injuries  resulting  from  his  em- 

gloyer's  negligence.— Koreis  v.  Minneapolis  & 
t.  L.  R.  Co.  (Minn.)  668. 

S  217.  An  employ^  held  not  to  assume  the 
risk  from  a  defective  place  to  work  negligently 
furnished,  unless  he  knows,  or  by  reasonable 
care  ought  to  know,  thereof. — ^Tarnoski  v.  Cud- 
ahy  Packing  Co.  (Neb.)  671. 

■{  217.  A  servant  held,  to  assume  the  ordina- 
ry risks  and  dangers  of  his  employmeut,  and 
bound  to  take  notice  of  the  ordinaiir  operation 
of  the  familiar  laws  of  gravitation. — West- 
lake  V.  Murphy  (Neb.)  684. 

i  217.  To  warrant  a  finding  that  a  servant 
assumed  the  risks  he  need  not  have  absolut* 
knowledge  of  the  risks  when  they  were  such  that 
an  ordinary  prudent  man  would  by  reasonable 
diligence  have  discovered  them. — Umsted  y.  Col- 
gate Farmers'  Elevator  Co.  (N.  D.)  380. 

§  218.  A  servant,  though  under  age,  assumes 
the  obvious  risks  of  his  employment. — Umsted  v. 
Colgate  Farmers'  Elevator  Co.  (N.  D.)  390. 

{  221.  A  master's  promise  to  repair,  as  sus- 
pending the  servant's  agreement  to  assume  the 
risk,  applies  to  simple  tools  as  well  as  complicat- 
ed machinery. — Brouseau  t.  Kellogg  Switch- 
board &  Supply  Co.   (Mioh.)  620. 

S  221.  A  master's  promise  to  repair  suspends 
the  servant's  implied  contract  to  assume  the  risk 
from  a  defective  appliance. — Brouseau  v.  Kel- 
logg Switchboard  &  Supply  Co.  (Mich.)  ^20. 

§  221.  Complaint  in  an  action  for  injuries 
to  a  servant  held  not  demurrable.- Manks  v. 
Moore  (Minn.)  5. 

$  225.  A  boy  employed  in  a  paper  mill  k«{<l 
not  to  have  assumed  the  risk  of  injuries  in 
certain  operations.- Dalm  v.  Bryant  Paper  Co. 

(Mich.)  257. 


Topios,  division*,  ft  section  ({)  NUMBERS  la  this  Index,  *  Deo.  *  Amar.  Digs.  *  Raportar  Indsxts  ogrss 

Digitized  by  VjOOQ  l€ 


INDBX-DIOBST. 


120T 


(G)  Contrlfevtory   .NesllKeiiee    of    Servant. 

I  231.  A  brakeman  in  charge  of  a  train 
held  entitled  to  rely  on  the  warnings  required 
by  the  rules  of  the  company  or  adopted  by 
custom. — Glines  v.  Oliver  Iron  Mining  Co. 
(Minn.)  161. 

§  231.  The  servant  has  a  right  to  assume 
that  the  master  has  provided  a  reasonably  safe 
place  for  him  to  work  unless  the  danger  is  obvi- 
ous.— Umsted  V.  Colgate  Farmers'  Elevator  Co. 
(N.  D.)  390. 

§  235.  Although  a  servant  may  rely  npon 
the  master  furnishing  safe  tools  and  appliances, 
and  need  not  inspect  them  before  using,  if  or- 
dinarily careful  persons  glance  at  an  imple- 
ment with  which  they  strike  before  striking  a 
blow,  a  failure  to  do  so  where  such  failure  con- 
tributes to  the  injury  is  contributory  negli- 
gence.— Lehman  v.  Chicago,  St.  P.,  M,  &  O. 
Hy.  Co.  (Wis.)  1059. 

i  236.  The  servant  has  a  right  to  assume  that 
the  master  has  provided  a  reasonably  safe  place 
for  him  to  work  unless  the  danger  is  obvions. — 
Umsted  t.  Colgate  Farmers'  Elevator  Co.  (N. 
D.)  390. 

I  236.  An  employ^  repairing  a  railroad 
bridge  held  guil^  of  contributory  negligence 
preventing  recovery  for  injuries. — ^AlcPherson 
V.  Great  Northern  Ey.  Co.  (Wis.)  1022. 

I  241.  In  a  servant's  action  for  injuries 
in  a  coal  mine,  plaintiff  held  not  guilty  of 
contributory  negligence. — Hodges  v.  Colfax  Con- 
sol.  Coal  Co.  (Iowa)  908. 

I  245.  Where  a  servant  by  order  incurs  the 
rislcs  of  dangerous  machinery  which  does  not 
threaten  immediate  injury,  the  master  is  liable 
for  a  resulting  accident. — Umsted  v.  Colgate 
Fanners'  Elevator  Co.  (N.  D.)  390. 

I  247.  Anticipation  of  the  precise  injury 
which  occurred  held  not  essential  to  contribu- 
tory negligence,  where  injury  of  some  kind 
should  have  been  reasonably  expected. — Lehman 
v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  (Wis.)  1059. 

f  248,  The  rule  of  the  last  clear  chance  ap- 
plies only  to  a  case  where  the  master  knew  of 
the  servant's  neril  and  might  have  obviated  the 
injury  but  faUed  to  do  so.— Umsted  v.  Colgate 
Farmers'  Elevator  Co.  (N.  D.)  390. 

<H).  Actions. 

Amendment  setting  ujp  new  or  different  cause 
of  action,  see  Pleading,  {  248. 

I  264.  Where  a  sawmill  operator  was  injur- 
ed by  the  alleged  defective  condition  of  cer- 
tain log-deck  kicker  bars,  evidence  that  the  ac- 
cident was  caused  by  the  absence  of  weights 
from  the  balance  stem  of  the  piston  was  not 
within  the  issues. — Edwards  v.  Engadine  Lum- 
ber Co.  (Mich.)  1073. 

§  265.  In  an  action  for  injuries  to  a  serv- 
ant by  the  alleged  defective  condition  of  log- 
deck  kicker'  bars,  defendant's  negligence  held- 
not  shown.— Edwards  v.  Engadine  Lumber  Co. 
(Mich.)  1073. 

f  265.  Where  the  practicability  of  guarding 
dangerous  machinery  is  in  dispute,  the  burden  is 
on  plaintiff  to  show  that  it  is  practicable. — 
Gloekner  t.  Hardwood  Mfg.  Co.  (Minn.)  463. 

f  265.  Breaking  of  eccentric  strap,  injuring 
engineer,  held  evidence  of  negligence,  where 
within  a  short  distance  from  the  place  of  in- 
spection.— Koreis  y.  Minneapolis  &  St.  L.  R. 
Co.  (Minn.)  668. 

§  265.  Assumption  of  risk  other  than  ordi- 
narily incident  to  the  employe's  service  is  an 
affirmative  defense,  the  burden  of  establishing 
which  rests  upon  the  employer. — Tamoski  v. 
Cudahy  Packing  Co.  (Neb.)  671. 


I  274.  In  an  action,  tor  injuries  to  an  em- 
ployi  while  oiling  certain  machinery,  evidence 
showing  how  others  oiled  the  machinery  prior 
to  plaintiff's  employment  was  admissible  on  the 
issue  of  contributory  negligence. — Monaghan  ▼. 
Northwestern  Fuel  Co.  (W».)  1066. 

}  278.  Evidence  held  insufficient  to  show 
practicability  of  applying  sufficient  guard  to 
dangerous  machinery. — Gloekner  T.  Hardwood 
Mfg.  Co.  (Minn.)  465. 

8  279.  In  an  action  for  injuries  to  a  brake- 
man,  evidence  held  to  sustain  the  charge  of 
negligence  on  the  part  of  other  employis  of 
defendant.— Glines  v.  Oliver  Iron  Mining  Co. 
(Minn.)  161. 

i  285.  Whether  the  proximate  cause  of  in- 
jury to  a  coal  heaver  was  the  dropping  of  the 
coal  bucket  or  the  previous  swinginsr  of  the 
bucket  held  a  question  for  the  jury. — Anderson 
V.  Pittsburg  Coal  Co.  (Minn.)  794. 

I  286.  Withdrawal  by  the  court  of  allega- 
tion of  negligence  from  the  jury  held  not  error. 
—Griffith  V.  Wapello  Coal  Co.  (Iowa)  681. 

g  286.  In  an  action  for  injuries  to  a  serv- 
ant by  the  explosion  of  a  flash  light  mixture, 
evidence  held  to  require  the  submission  to  the 
jury  of  the  issue  of  negligence. — Heath  y.  Cal- 
kins (Mich.)  84. 

S  286.  In  an  action  for  death  of  a  servant 
by  the  breaking  of  a  bolt,  on  which  was  the 
strain  of  a  hoisting  apparatns,  whether  de- 
fendant was  negligent  in  failing  to  ascertain 
the  defect  by  inspection  held  for  the  juiy. — 
Nelson  v..PitUburg  Coal  Dock  Co.  (Mich.)  777. 

i  286.  In  an  action  for  injuries  to  an  em- 
ploye, the  question  of  negligence  of  defendant 
held  for  the  jury. — Qruenberg  y.  Eeywood  Mfg. 
Co.  (Minn.)  £24. 

i  286.  Where  a  telephone  employ^,  engaged 
in  repairing  brackets  on  a  telephone  iMle,  was 
injured  by  the  fall  of  the  pole  from  defects, 
it  was  a  question  for  the  jury  whether  the 
pole  was  part  of  defendant's  system,  rendering 
It  liable  tor  its  condition.— Holden  r.  Gary  Tel- 
ephone Co.  (MinnJ  1018. 

§  286.  In  action  for  Injurie*  to  aervant, 
whether  a  defective  telephone  pole  was  fur- 
nished by  a  master  held  tor  the  jury.— Holden 
y.  Gary  Telephone  Co.  (Minn.)  1018. 

I  286.  In  an  action  for  injuries  to  a  servant, 
whether  defendant  was  negligent  in  perform- 
ing its  statutory  duty  to  guard  the  machinery 
was  for  the  jury.— Monaghan  y.  Northwestern 
Fuel  Co.  (Wis.)   1066. 

S  288.  In  a  servant's  action  for  injuries  in 
a  coal  mine,  whether  plaintiff  assumed  the  risk 
incident  to  changed  conditions  in  Uie.jiiWtiltt- 
tion  held  for  the  jury.— Hodges  v.  Colfax  Con- 
sol.  Coal  Co.  (Iowa)  908. 

{  288.  In  an  action  for  injuries  to  a  servant 
while  operating  an  erratic  machine,  plaintiff 
held  not  to  have  assumed  the  risk  as  a  matter 
of  law. — Sabin  y.  Northwestern  I^eather  C!o. 
(Mich.)  300. 

f  288.  In  an  action  for  injuries  to  servant 
through  an  alleged  defective  machine,  whether 
plaintiff  assumed  the  risk  held,  under  the  evi- 
dence, for  the  Jury. — Gamsey  v.  Boyce  (Mich.) 
371. 

$  288.  In  an  action  for  injuries  to  a  serv- 
ant, plaintiff  held  not  to  have  assumed  the  risk  as 
a  matter  of  law. — Brousrau  v.  Kellogg  Switch- 
board &  Supply  Co.  (Mich.)  620. 

S  288.  In  an  action  for  injuries  to  an  em- 
ploy£,  the  questions  of  assuinption  of  risk  held 
for  the  jury. — Gruenberg  y.  Heywood  Mfg.  Co. 
(Minn.)  324. 

g  288.  Whether  an  engineer  assumed  the  risk 
of  injury  from  the  defective  fastening  of  an  ec- 


For  eases  In  Dec.  Dig.  A  Amer.  Digs.  IMI  to  date  *  Indexes  see  same  topic  A  section  (I)  NVUBUR 

Digitized  by  VjOOQ  l€ 


1208 


122  NORTHWESTERN  REPORTER. 


centric  strap,  which  he  had  attempted  to  repair, 
held  for  the  jury.— Koreis  r.  Minneapolis  &  St 
L.  R.  Go.  (Minn.)  668. 

t  288.  In  an  action  by  a  minor  injured  while 
in  defendant's  employ  the  question  of  piaintifTs 
assumption  of  the  risks  held,  nnder  the  evidence, 
for  the  jury.— Umsted  v.  Colgate  Fanners'  Ele- 
vator Co.  CN.  D.)  390. 

i  289.  In  an  action  for  injuries  to  a  minor 
servant,  whether  he  was  negligent  held  for  the 
jury.— Lund  v.  Sargent  Mfg.  Co.  (Mich.)  372. 

f  289.  In  an  action  for  injuries  to  a  serv- 
ant, plaintiff  held  not  negligent  as  a  matter  of 
law.— Brouseau  v.  Kellogg  Switchboard  &  Sup- 
ply Co.  (Mich.)  620. 

i  288.  In  an  action  for  injuries  to  an  em- 
ploy£,  the  questions  of  contributory  negligence 
held  for  the  jury.— Gruenberg  v.  Heywood  Mfg. 
Co.  (Minn.)  324. 

S  289.  Whether  an  engineer  was  guilty  of 
coutribntory  negligence  in  attempting  to  proceed 
to  the  next  station  after  having  imperfectly  re- 
paired the  defective  fastening  of  an  eccentric 
strap  held  for  the  jury.— Koreis  v.  Minneapolis 
&  St.  L.  R.  Co.  (Minn.)  6C& 

I  289.  In  an  action  by  a  minor  injured  while 
in  defendant's  employ  the  question  of  plaintilTs 
contributory  negligence  held,  under  the  evidence, 
for  the  jury.— tJmsted  v.  Colgate  Farmers'  Ele- 
vator Co.  (N.  D.)  390. 

I  289.  Whether  one  seizing  a  pick,  a  ham- 
mer, or  an  ax,  and  striking  a  blow  with  it, 
without  even  glancing  at  the  condition  of  the 
implement,  is  in  the  exercise  of  ordinary  care, 
is  a  question  of  fact  for  the  jury.— Lehman  v. 
Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  (Wis.)  1059. 

I  289.  .In  an  action  for  injuries  to  a  servant, 
whether  he  was  negligent  was  for  the  jury  un- 
der Sanborn's  St.  Supp.  1906,  |  1636ij.— Mona- 
gban  V.  Northwestern  Fuel  Co.  (Wis.)  1066. 

I  296.  In  an  action  for  injuries  to  a  servant, 
modification  of  a  request  to  charge  on  contrib- 
utory negligence  held  not  error.- Lund  v.  Sar- 
gent Mfg.  Co.  (Mich.)  372. 

{  206.  In  a  logging  train  conductor's  action 
for  injories  while  attempting  to  couple  cars 
by  link  and  pin,  held  error,  under  the  evidence, 
to  preclude  a  finding  of  contributory  negligence 
except  from  plaintiff's  acts  .after  he  went  be- 
tween the  cars. — Betterly  v.  Boyne  City,  G.  & 
A.  R.  Co.  (Mich.)  635. 

i  296.  The  submission  of  an  instruction  as 
to  contributory  negligence  in  a  servant's  ac- 
tion for  personal  injuries  held  not  error.— Leh- 
man V.  Cnicago,  St.  P.,  M.  &  O.  Ry.  Co.  (Wis.) 
1059. 

TV.  UABItrriES   FOR  INJURIES   TO 
THIRD   FERSOHS. 

(A)  Acts  or  OmlsBlona  ot  Serrant. 

i  302.  A  creosoting  company  Tield-  liable  for 
an  assault  and  battery  by  its  emtjloyS  in  the 
course  of  his  employment  upon  an  inspector  on 
its  premises  to  see  that  the  creosoting  mixture 
conformed  to  contract. — Creasy  v.  Republic  Cre- 
osoting Co.  (Minn.)  484. 

MATERIALITY. 

Of  alteration  of  written  instrument,  see  Altera- 
tion of  Instruments. 

Of  evidence  in  civil  actions,  see  Evidence,  {{ 
144,  145. 

Of  evidence  in  criminal  prosecutions,  see  Crim- 
inal Law,  i  305. 

MAYOR. 

See  Municipal  C!orporations,  {  168. 
Mayor's  docket   as   documentary   evidence,   see 
Kvidenoe,  IS  .^'^2. 


MEANDERED  WATERS. 

Boondariea,  see  Boundaries,  S  18. 

MEASURE  OF  DAMAGES. 

Instructions,  see  Damages,  {  210. 

MECHANICS'  LIENS. 

XL  RIGHT  TO  UEN. 

(O  Asreement  or  Consent  of  Owner. 

(  61.  Where  a  husband  purchased  materials 
to  paint  a  house  on  his  wife's  land  against  her 
protest,  the  party  furnishing  the  material  held 
to  acquire  no  lien,  under  Uev.  Codes  1905,  § 
6237.— Christianson  v.  Hughes  (N.  D.)  384. 

(B)     gnbeontractors,       and       Contractors' 
'Workmen  and  Materialmen. 

{  95.  Under  the  mechanics'  lien  law  (Rev. 
Codes  1905,  c.  79),  a  subcontractor  is  entitled 
to  a  direct  lien  irrespective  of  the  state  of  the 
accounts  between  the  owner  and  the  contractor. 
— Langworthy  Lumber  Co.  v.  Hunt  (N.  1>.) 
865. 

8  115.  frhe  owner  must  keep  advised  wheth- 
er material  used  in  his  building  is  paid  for  or 
not,  and,  if  he  pays  the  contractor  within  the 
time  specified   by   statute,   he  does  so  at  his 

Beril.— Langworthy   Lumber  Co.   v.   Hunt   (N. 
>.)  865. 

m.  PBOOEEDIirOS  TO  PERFECT. 

{  121.  Notice  to  owner  by  subcontractor  held 
seasonably  sent  under  Rev.  Codes  1905,  S  62.S7. 
— Langworthy  Lumber  Co.  v.  Hunt  (N.  D.)  865. 

i  157.  Where  a  mechanic's  lien  claimant  pro- 
ceeds erroneously  against  a  certain  person  as 
the  owner  and  positively  swears  in  his  claim 
that  he  is  the  owner,  he  cannot  plead  i^orance 
unless  it  is  chargeable  to  the  owner  himself.— 
Lacy  V.  Piatt  Power  &  Heat  Co.  (Mich.)  112. 

f  153.  Comp.  Laws  1897,  {  10,736.  relatins 
to  amendments  in  mechanic's  lien  actions,  held 
to  refer  to  proceedings  in  actions  to  enforce 
the  lien,  and  not  to  give  the  rif^ht  to  amend 
the  statement  of  lien. — Lacy  v.  Piatt  Power  & 
Heat  Co.  (Mich.)  112. 

VII.  ENFORCEMENT. 

}  277.  Under  the  statute,  the  answer,  in  an 
action  to  enforce  a  mechanic's  lien,  held  sup- 
ported by  the  evidence.— Nichols  t.  Roberts. 
(Iowa)  842. 

t  291.  A  decree.  In  an  action  to  establish  a 
mechanic's  lien,  held  to  exact  the  payment  to 
and  retention  by  the  clerk  of  the  money  paid 
into  court  by  defendant,  to  be  paid  over  to 
plaintiff  on  bis  furnishing  a  guaranty  aa  pro- 
vided by  the  contract.— Nichols  t.  Rolwrts 
(Iowa)  842. 

MEETINGS. 

Of  municipal  oooncil,  see  Municipal  Corpora- 
tions, i  84. 

Of  town  board,  see  Towns,  {  26. 

School  district  meetings,  see  Schools  and  School 
Districts,  i  62. 

MEMORANDA. 

Required  by  statute  of  frauds,  see  Frauds,  Stat- 
ute of,  I  116. 

MENTAL  CAPACITY. 

Opinion 'evidence,  see  Evidence,  I  571. 
Presumptions  in  general,  see  Bridenoe,  I  62. 
To  execute  deed,  see  Deeds,  {  211. 


Topics,  dlvtslont,  *  secUon  (|)  NUMBERS  In  thU  Index,  ft  Dec.  ft  Amer.  Digs.  * 

Digitized  by 


aCTM 


INDEX-DIOBST. 


1209 


MERGER. 

Of  can  Be  of  action  in  jadcment,  Bee  Judgment, 
H  684-590. 

MILLS. 

Abandonment  of  right  acqnired  by  exercise  of 
power  of  eminent  domain,  see  Eminent  Do- 
main, I  323. 

MINES  AND  MINERALS. 

Mine  operators  aa  employers,  see  Master  and 
Servant,  i  241. 


MINORS. 


See  Infftnts. 


MISREPRESENTATION. 

See  False  Pretenses;  Fraud. 

Affecting  ralidity  of  contract, '  see  Contracts,  { 

84. 
Affecting  Talidity  of  deed,  see  Deeds,  i  70. 

MISSTATEMENT. 

In  opinion  as  to  nature  of  action  as  grounds 
for  rehearing,  see  Appeal  and  Error,  {  S32. 

MODIFICATION. 

Of  contract,  see  Contracts,  H  237,  246. 
Of  terms  of  sale  at  auction,  see  Auctions  and 
Auctioneers,  {  7. 

MONEY  RECEIVED. 

Recorery  of  price  paid  for  goods,  see  Sales,  i 

397. 
Recovery  of  tax  paid,  see  Taxation,  {  542. 

MONOPOLIES. 

n.  TR1T8T8   AHD    OTHER   OOMBINA- 

TIONB   IN   RESXRAUfT 

OF  TRADE. 

i  12.  A  stockholder  in  a  corporation  held  to 
have  such  an  interest  in  the  corporate  busi- 
ness and  good  will  that  a  buyer  of  his  interest 
would  be  a  transferee  thereof  within  Pub.  Acts 
1905,  p.  508,  No.  329,  {  6,  excepting  contracts 
in  restraint  of  trade  from  the  prohibition  of 
section  1.— Buckhout  v.  Witwer  (Mich.)  184. 

MORTGAGES. 

On  penonal  property,  see  Chattel  Mortgages. 

Z.  BEQ1TI8XTE8  AND  VAUDXTT. 

CA)  Ifatmre  and  Baaentlsla  of  CH>mTe^<uieea 
aa   BeenrltT-. 

i  36.  The  burden  rests  upon  the  one  claim- 
ing it  to  show  that  a  deed  absolute  in  form 
was  intended  as  a  mortgage. — Miller  t.  Peter 
(Mich.)  780. 

{  37.  Parol  evidence  Is  admissible  to  show 
a  deed  absolute  in  form  was  intended  to  be  a 
mortgage.— Mahafty  t.  Faris  (Iowa)  934. 

{38.  In  an  action  to  have  a  deed  absolute 
on  its  face  declared  a  mortgage,  and  for  re- 
demption, evidence  held  to  sustain  the  burden 
upon  complainant  of  showing  that  the  deed  was 
intended  to  operate  as  a  mortgage. — Miller  v. 
Peter  (Mich.)  780. 


HI.  CON8TB1T0TIOir  AHD  OPERA- 
TION. 


(C) 


Property   Mortaraared>   and   Batatea   of 
Partlea  Thereia. 


$  143.  Adverse  possession  by  a  grantee  for 
security  held  not  to  exist  until  conveyance  to 
third   person. — Mahaffy  v.   Faris  (Iowa)  934. 

(D)  Lien  and  Priority. 

i  181.  Beld,  that  an  indebtedness  was  can- 
celed and  lands  released  from  mortgage  by  an 
agreement  whereby  a  new  mortgage  was  exe- 
cuted, and  that  a  mortgage  to  a  third  person 
executed  after  the  old  and  before  the  new  mort- 
gage was  superior  thereto. — Kidder  v.  Barnes 
(N.  D.)  378. 

IV.  RIOHT8  Ain>   LIABIUTIE8  OF 
PARTIE8. 

§  200.  The  grantee  of  a  mortgagor  held  not 
entitled  to  ascribe  his  payment  of  taxes  to  his 
attitude  as  tax  title  cfaimant.— Roach  v.  San- 
bom  Land  Co.  (Wis.)  1020. 

V.  A8a|ONMEirr  of  mortgage  or 

^  DEBT. 

i  249.  Where  mortgagee  assigns  the  mort- 
gage as  collateral  and  receives  payment,  but 
faUs  to  turn  it  over  to  the  assignee,  the  laiid- 
owner  who  made  the  payment  with  construc- 
tive notice  cannot  defeat  foreclosure  on  the 
ground  that  assignee  is  estopped  to  deny  mort- 
ragee's  agency  without  proving  the  agency.— 
Settle  V.  Tiedgen  (Neb.)  890. 

VI.  TRANSFER  OF  PROPERTT  MORT. 

GAGED   OR  OF  EQITITr  OF 
REDEMPTION. 

Person  amnming  mortgage  as  simple  contract 
debtor  within  statutes  of  limitations,  see  Limi- 
tation of  Actions,   I  21. 

S  292.  A  grantee  of  mortgaged  property  who- 
has  assumed  the  debt  by  a  clause  in  the  deed  is 
liable  only  to  an  action  in  aRsumpsit,  and  not  in 
covenant.— HoUister  v.  Strahon  (S.  D.)  604. 

VII.  PAYMENT    OR    PERFORMANCE 
OF  CONDITION.  RELEASE, 

AND   SATISFACTION. 

I  298.  Grantee  of  mortgagor  held  not  entitled 
to  compel  satisfaction  without  reimbursing  to 
the  assignee  of  part  of  the  mortgage  debt  the 
amount  paid  the  mortgagee  above  payments  by 
the  mortgagor  on  the  debt. — Geddis  v.  North- 
western Trust  Co.  of  Omaha,  Neb.  (S.  D.)  587. 

i  298.  Marking  part  of  a  series  of  mortgage 
notes  "Paid,"  on  transfer  to  assignee  of  mort- 
gage, held  to  raise  no  estoppel  to  claim  that  they 
were  only  taken  up  by  the  assignee  under  the- 
arrangement  with  the  mortgagee,  and  not  whol- 
ly discharged  as  to  the  owner  of  the  equity  of 
redemption. — Cleddis  v.  Northwestern  Trust  Co. 
of  Omaha,  Neb.  (S.  D.)  587. 

Sf  301.  Tender  of  exact  sum  due  upon  mort- 
gage upon  the  "law  day"  held  to  discharge  the 
lien,  and  thereafter  the  only  liability  is  on  the 
note. — Security  State  Bank  of  Washington  v. 
Waterloo  Lodge  No.  102,  A.  F.  &  A.  M.  (Neb.) 
992. 

IX.  FORECI.OSTTRE  BT  EXERCISE  OF 

POWER  OF  saij:. 

I  338.  A  purchaser  at  a  tax  sale  cannot 
avail  himself  of  the  ex  parte  remedy  provided 
by  Rev.  Codes  IdO't,  |  7454.  to  enjoin  the  fore- 
closure of  a  mortgage  bv  advertisement. — Hodg- 
son V.  State  Finance  Co.  (X.  D.)  336. 


For  cases  in  Deo.  Dig.  A  Amer.  Digs.  1S07  to  date  A  Indexes  sa«  same  topic  A  section  (D  NUUBBB 

Digitized  by  VjOOQ  l€ 


1210 


122  NORTHWBSTBBN  REPORTER. 


X.  FOBEOI.OS1JRE  BT  ACTION. 

(D)  UmlUitloita  and  Laeltea. 

Application  of  general  statDtes  of  llmitatioDa, 

see  Limitation  of  Actions,  §  25. 
Bar  of  -action,  operation  and  effect  in  general, 

.see  Limitation  of  Actions,  |  105. 

OP)  Plesdtnv  <Uid  BTldCBoe. 

S  400.  Tiie  receiver  of  a  bank,  seeking  to 
foreclose  as  a  mortgage  a  deed  to  tlie  cashier, 
held  to  liave  the  burden  of  allowing  that  the 
deed  was  made  on  behalf  of  the  bank.— Andrews 
T.  Kennon  (Iowa)  840. 

!  463.  Evidence  held  not  to  show  that  a  deed 
to  the  cashier  of  a  bank,  with  the  word  "trus- 
tee" added  after  his  name,  was  executed  on  be- 
half of  the  bank  to  secure  a  loan  due  to  the 
bank.— Andrews  v.  Kennon  (Iowa)  840. 

(J)  Sale. 

Certificate  of  sale  as  personal  property  assign- 
able by  executor,  see  Executors  and  Adminis- 
trators, I  39. 

S  638.  The  holder  of  certificate  of  sale  or 
deed  under  inyalid  foreclosure  in  posseuion  with 
consent  of  mortgagor  held  a  mortgagee  in  pos- 
session.- Boschker  y.  Van  Beek  (N.  D.)  338. 

I  563.  Plaintiff  held  not  to  have  acquired 
such  a  title  as  would  be  protected  by  quieting 
title  in  her. — Winteiberg  v.  Van  De  Vorste  (N. 
D.)  866. 

XL  REDXaCPTIOir. 

■  (  691.  An  attempted  satisfaction  of  a  mort- 
gage foreclosure  decree,  by  agreement  between 
the  mortgagee  and  mortgagor  to  apply  thereto 
property  conveyed  to  the  mort^a^ee  by  another 
as  collateral  security  of  the  pnncipal  mortgage, 
without  the  consent  or  authority  of  the  col- 
lateral mortgagor,  would  not  bind  the  latter.— 
MiUer  t.  Peter  (Mich.)  780. 

i  597.  The  purchaser  of  land  from  one  hold- 
ing title  as  secniity  held  entitled  to  plead  laches 
in  an  action  to  redeem  from  his  grantor.— Ma- 
haffy  T.  Faris  (Iowa)  934. 

i  697.  An  action  to  redeem  held  barred  by 
lapse  of  time.— Mahaffy  v.  Faris  (Iowa)  934. 

I  699.  Action  to  redeem  from  conveyance  as 
security  held  barred  by  the  10-year  statute  of 
limitation.— Mahaffy  y.  Faria  (Iowa)  934. 

I  602.  Persons  to  .whom  the  mortgagee  con- 
veyed the  mortgaged  land  are  chargeable  with 
the  rental  value  of  the  property,  less  expendi- 
tures made  in  the  usual  course  of  husbandry, 
in  an  action  by  grantees  of  the  mortgagor  to 
have  the  mortgage  established  and  to  redeem. 
— MiUer  V.  Peter  (Mich.)  780. 

MOTIONS. 

For  particular  purpotei  or  relief. 

Continuance  in  civil  actions,  see  Gontinuance. 

Direction  of  verdict  in  civil  actions,  see  Trial, 
§§  168-178. 

New  trial  in  civil  actions,  see  New  Trial,  {{ 
116,   166. 

New  trial  in  criminal  prosecutions,  see  Criminal 
Law,  §§  989,  054. 

Opening  or  setting  aside  default  judgment,  see 
Judgment,  f  162. 

Presentation  of  objections  for  review,  see  Ap- 
peal and  Error,  §{  212-233. 

Relating  to  pleading,  see  Pleading,  |{  352-369. 

MOTOR  VEHICLES. 

On  streets,  injuries  caused  by  frightening  hors- 
es, see  Municipal  Corporations,  j!|  705,  706. 

Opinion  evidence  in  action  caused  by  frigliten- 
ing  horses,  see  Evidence,  §  471. 


MOVING  PICTURE  SHOWS. 


Restraining  exhibition  by  injunction, 
junction,  i  114. 


see   In- 


MUNICIPAL  CORPORATIONS. 

See  Counties;  Schoob  and  School  Districts,  U 

62-159;   Towna. 
Garnishment  of  property  of,  see  Qamishment, 

517.  K    K-   , 

Mandamus,  see  Mandamus,  {I  66-109. 
Ordinances  relating  to  intoxicating  liquors,  see 

Intoxicating  Liquors. 
R^nlation  of  railroads,  see  Railroads,  H  227. 

Street  railroads,  see  Street  Railroads. 

I.  CBEATIOir,    AX.TEBATIOir,    EXIST- 
ENCE, AND  DISSOLTJTION. 

(B)  Territorial    Extent    and    BnbdlTlaiona, 

Annexation,  Coaaolldatloa,  and 

Division. 

Judicial  power  to  pass  on  determination  of 
legisiatiye  department  as  to  boundaries,  see 
Oonstitntional  Law,  i  68. 

Law  authorizing  proceedings  in  circuit  court  to 
have  land  excluded  from  city  limit  as  confer- 
ring legislative  iMwer  upon  court,  see  Con- 
stitutional Law,  I  61. 

Laws  relating  to  appeal  in  proceedings  for  de- 
tachment of  territory  as  delegation  of  legisla- 
tive power  to  Judiciary,  see  Constitutional 
Law,  S  61. 

I  26.  Betd,  not  error  to  include  the  water 
area  within  the  boundaries  of  a  proposed  vil- 
lage aa  a  part  of  the  one-half  square  mile  which 
by  St  1898,  g  854,  a  village  which  it  is  pro- 
posed to  incorporate  must  cover. — Kenton  v. 
Ryan   (Wis.)  756. 

XL  OOVERNMENTAIi    POWERS     AND 
FUNCTIONS  IN  OENEBAL. 

i  68.  Doubtful  claims  of  power  are  resolved 
against  the  mnnicipality.— Stem  t.  City  of  Far- 
go (N.  D.)  403. 

8  69.  Powers  of  a  mnnicipality  declared.— 
Stem  V.  City  of  Fargo  (N.  D.)  403. 

I  60.  The  common  council  of  a  city  held 
authorized  to  conduct  an  investigation  through 
a  committee  of  outsiders  or  through  the  mayor, 
providing  the  investigation  is  subject  to  its  con- 
trol.—Attorney  General  v.  Murphy  (Mich.)  260. 

IV.  PROCEEDINGS    OF    0O1TN0II.   OB 
OTHER  CK>VERNINO  BODY. 

(A)  Meetlnars,   Rnles,  and  Proeeedlnss  In 

General. 

Mandamus  to  compel  attendance  of  members, 
see  Mandamus,  {$  81, 147. 

I  84.  Certain  act  (I^ws  1887,  p.  201.  c  11) 
held  not  to  make  city  council  the  sole  jndge  of 
the  election  of  its  own  members.— State  t.  Cos- 
grave  (Neb.)  886. 

(B)  Ordinances   and  By-IiaTra   In    Qeneral. 

i  120.  An  ordinance  passed  under  a  power 
conferred  on  a  municipality  is  of  the  same  force 
as  if  passed  by  the  legislature ;  and,  if  repug- 
nant to  the  general  law,  the  latter  must  yield.— 
SUte  V.  Cosgrave  (Neb.)  885. 

V.  OFFICERS.  AGENTS,  AND  EM- 
VlMYtM. 

(A)  Mnnlolifal  Ofllcera  In  Oeneral. 

Assignability  of  salary,  see  Assignments,  f  15. 
Right  of  mayor  to  maintain  mandamus  to  com- 

Sel    attendance   of   members    of   council,   see 
landamus,  g  147. 


Topics,  dlvlilons,  *  secUon  (t)  NUMBERS  tn  this  Index,  *  Dec.  A  Am«r.  Digs.  *  Reportsr  IndexM  agrM 

Digitized  by  LjOOQ  l€ 


INDEX-DIGEST. 


1211 


i  136.  The  rifht  to  conteat  tbe  election  of  K 
city  officer  of  Lincoln  before  tbe  city  council 
under  an  ordinance  of  that  city,  and  tbe  right 
given  by  General  Election  liw  (Comp.  St. 
1900,  S  3281)  I  71,  to  contest.such  election  in  a 
county  court,  held  concurreiit.— State  t.  Cos- 
grave  (Neb.)  885. 

{  152.  Mayor  held  not  bound  to  give  reasons 
for  decision  against  suspending  an  officer  un- 
der Laws  1885,  p.  1254,  c.  378,  {  11.— State  v. 
Rose  (Wis.)  751. 

I  152.  Nature  of  power  of  mayor  to  suspend 
officers  under  Laws  1885,  p.  1254,  c  378,  i  11, 
stated.— State  v.  Kose  (Wis.)  751. 

{  168.  A  dty  charter  held  to  confer  on  tbe 
mayor  all  the  powers  of  a  chief  ezecutire. — 
State  T.  Rose  (Wis.)  761. 

<B)  HiiBlelpal    Departmenta    and    Olllcers 
Thereof. 

I  181.  Under  Comp.  Laws  1807,  g  5395,  po- 
lice officers  cannot  summarily  close  saloons  open 
in.  violation  of  law,  but  are  only  authorized  to 
collect  evidence  and  prosecute  the  violating  sa- 
loon keepers  in  the  ordinary  course  of  law. — 
Gowan  t.   Smith  (Mich.)  286. 

VH.   OOITTKACTS  IN  OENEBAIi. 

Acceptance  of  franchise  granted  by  city,  see 

Franchises,  |  2. 
Contracts  for  telephone  service,  see  Telegraphs 

and  Telephones,  |  32. 

t  241.  That  neither  the  notice  to  bidders 
for  the  work  of  publishing  proceedings  of  a 
city  council,  the  resolutions  of  the  council,  nor 
the  contract  mentioned  union  shops  or  the  use 
of  the  union  label  held  decisive  of  tbe  question 
of  discrimination  in  favor  of  union  printers, 
if  it  further  appears  with  reasonable  certain- 
ty that  this  test  was  in  fact  applied.— Miller  v. 
City  of  Des  Moines  (Iowa)  226. 

8  241.  A  discrimination  in  favor  of  union 
printers  in  letting  a  contract  for  publishing  pro- 
c-eedings  of  a  city  council  held  an  abuse  of  legal 
discretion  and  nnlawful,  whether  authorized  by 
ordinance  or  not. — Miller  t.  City  of  Des  Moines 
(Iowa)  226. 

i  244.  Where  a  contract  made  by  a  city  did 
not  contemplate  any  pecuniary  liability  on  tbe 
part  of  the  city,  the  charter  provisions  govern- 
ing the  manner  of  making  contracts  imposing 
pecuniary  liability  were  immaterial  in  deter- 
mining the  validity  of  the  contract. — City  of  Su- 
Serior  ▼.  Douglas  County  Telephone  Co.  (Wis.) 
023. 

IZ.  PUBXiIO  IMPROVEMENTS. 

<A)  Pow«r     to     Make     Impro-vements     or 
Orsmt  Aid  Therefor. 

I  268.  The  general  statutory  i>ower  of  a 
Tillage  to  lay  out,  widen,  or  change  streets  au- 
thorized it  to  determine  the  width  of  the  trav- 
eled track  in  a  street  and  extend  its  width  ac- 
cordingly.—Berkedahl  v.  Village  of  Westby 
(Wis.)  727. 

<B)  Prellmlnarr     Proceedlnar*    and    Ordi- 
nance*  or  Resolutions. 

{  296.  The  filing  of  an  estimate  of  cost  and 
assessment  for  street  improvement  by  the  city 
auditor,  required  by  Rev.  Pol.  Code,  §  1246, 
held  a  condition  precedent  to  the  levy  of  an  as- 
sessment therefor.— Whittaker  v.  Ci^  of  Dead- 
wood  (S.  D.)  590. 

{  302.  Record  of  xnssage  of  a  municipal  im- 
provement ordinance  held  equivalent  to  a  state- 
ment of  the  yea  and  nay  vote  required  by  Rev. 
Pol.  Code.  ;  1209.— Whittaker  v.  City  of  Dead- 
wood  (S.  D.)  500. 

i  304.  A  street  improTement  resolution  must 
either  show   the  height,   width,   and    thickness 


of  cnrbing  to  be  set,  or  refer  to  plans  and  speci- 
fications therefor  then  on  file.— Whittaker  v. 
City  of  Deadwood  (S.  D.)  590. 

i  323.  In  an  action  by  a  property  owner  to 
restrain  a  village  and  a  contractor  from  widen- 
ing a  street  and  changing  the  sidewalk,  facts 
alleged  in  the  complaint  held  not  to  show  that 
defendant  was  not  acting  pursuant  to  St.  1898, 
g  893,  subd.  11,  and  section  903,  in  widening 
the  street,  so  that  plaintiS  was  not  entitled  to 
an  injunction.— Berkedahl  v.  Village  of  Westby 
(Wis.)  727» 

(C)  Contraets. 

i  847.  A  suiicontractor  for  public  work  held 
entitled  to  the  benefit  of  the  contractor's  bond 
required  by  Laws  1895,  p.  757,  c.  354,  {  1,  as 
amended  by  Laws  1897,  p.  566,  c.  307,  g  1, 
and  Laws  1901,  p.  535,  c.  321.  g  1,  and  not  ex- 
cluded therefrom  by  section  4,  as  amended  by 
Laws  1897,  p.  567,  c.  307,  J  2.— Horton  v.  Crow- 
ley Electric  Co.  (Minn.)  312. 

S  374.  In  an  action  on  a  contract  for  laying 
pavement,  evidence  held  to  show  the  contract 
was  substantially  performed. — Peet  t.  City  of 
East  Grand  Forks  (Minn.)  327. 

{  374.  Evidence  in  an  action  to  recover  on 
a  contract  for  laying  certain  pavement  held 
to  show  contractor  justified  in  stopping  the 
work.- Peet  v.  City  of  East  Grand  Forks 
(Minn.)   327. 

{  374.  In  an  action  on  a  contract  to  lay  eer- 
tain  pavement,  whether  the  contractor  was  jus- 
tified in  stopping  the  work,  and  whether  the 
work  actually  performed  was  done  substantially 
as  required  by  contract,  were  for  the  jury. — 
Peet  V.  City  of  East  Grand  Forks  (Minn.)  327. 

(B)  Assessmeata  for  Benoflte,  and  Special 
Taxes. 

Validity  of  retroactive  law  creating  personal 
liability  for  assessments,  see  Constitutional 
Law,  g  190. 

§  407.  A  front-foot  levy  of  special  assess- 
ments, prescribed  by  Rev.  Pol.  Code,  g  1304, 
held  constitutional. — Whittaker  v.  City  of  Dead- 
wood  (S.  D.)  590. 

i  434.  Property  of  a  state,  county,  or  munic- 
ipal corporation  is  not  exempt  from  assessment 
for  local  improvements  by  Const,  art.  11,  g  5. — 
Whittaker  v.  City  of  Deadwood  (S.  D.)  590. 

g  434.  Property  owned  by  the  federal  govern- 
ment is  exempt  from  special  assessment  for 
street  improvements.— Wnittaker  v.  Oty  of 
Deadwood  (S.  D.)  590. 

g  450.  Comp.  Laws  1887.  f  2834,  held  to  re- 
late to  imjirovements  to  be  ordered  by  the  com- 
mon council  of  a  village,  and  not  to  proceedings 
to  condemn  land  for  opening  a  street,  which 
are  governed  by  Pub.  Acts  1903,  p.  248,  No.  176, 
i  31.— Weber  v.  City  of  Detroit  Oiich.)  570. 

g  450.  Under  Rev.  Pol.  Code,  g  1303,  a  city 
held  unauthorized  to  join  several  streets  of  un- 
equal width  in  a  single  assessment  district  to 
pay  for  street  improvements. — Whittaker  r.  City 
of  Deadwood  (S.  D.)  590.  . 

g  483.  A  sale  for  a  delinquent  special  as- 
sessment for  a  street  improvement  may  not  be 
challenged  by  the  owner  of  the  land  on  tbe 
ground  that  tbe  delinquent  assessment  was  not 
brought  forward  on  the  city  tax  books  each 
year  while  it  remained  uni>aid. — Fisk  t.  City  of 
Keokuk  aowa)  896. 

g  483.  An  assessment  for  public  improve- 
ments levied  under  Pub.  Acts  1903,  p.  248,  No. 
176.  g  31,  and  Comp.  Laws  1807,  c.  87,  held 
void,  where  the  valuation  of  lands  assessed  was 
not  made  in  the  assessment  roll. — Weber  v.  City 
of  Detroit  (Mich.)  570. 


For  eases  In  DM.  Dig.  *  Amer.  Digs.  1M7  to  date  *  Indezw  see  same  topic  *  MCtion  (|)  NUUBBB 

•Digitized  by  VjOOQ  IC 


1212 


122  NORTHWESTERN  REPORTER. 


t  507.  A  judgment  in  proceedings  attacking 
a  special  assesBment  held  to  amount  to  a  hold- 
ing that  the  assessment  was  valid. — Fisk  t. 
City  of  Keokuk  (Iowa)  896. 

{  514.  Changes  in  the  plans  and  specifica- 
tions for  sewers,  made  in  the  resolution  for  re- 
assessment, which  were  of  small  consequence 
compared  with  the  magnitude  of  the  work, 
would  not  affect  the  validity  of  the  reassessment. 
—Thayer  Lumber  Co.  t.  City  of  Muskegon 
(Mich.)  180. 

{  514.  Property  owners  cannot  complain 
that  a  reassessment  of  property  for  sewers  re- 
duced the  amount  of  the  original  assessment. — 
Thayer  Lumber  Co.  t.  City  of  Muskegon  (Mich.) 
189. 

t  514.  Under  Muskegon  City  Charter,  tit. 
11.  }  15,  a  reassessment  held  proper,  where  the 
onginal  assessment  was  adjudged  void  by  the 
Supreme  Court  because  of  the  insufficiency  of 
tlie  resolution. — Thayer  Lumber  Co.  v.  Ciiy  of 
Muskegon  (Mich.)  189. 

§  614.  Reassessment  for  sewers  under  Mus- 
kegon City  Charter,  tit  11,  8  15,  held  not  in- 
valid under  the  circumstances,  because  the  res- 
olution did  not  expressly  show  that  it  was  a 
reassessment,  or  because  the  resolution  for  re- 
assessment reduced  the  original  assessment,  or 
because  the  work  had  been  partially  completed 
under  a  contract  made  under  the  former  reso- 
lution.—Thayer  Lumber  Co.  v.  C'ty  of  Muske- 
gon (Mich.)  189. 

{  614.  That  a  resolution  for  reassessment 
for  a  sewer  did  not  provide  for  plans  and  dia- 
grams of  the  sewer  district  or  estimates  of 
cost,  except  by  reference  to  those  adopted  un- 
der the  former  resolution,  held  not  to  affect 
the  ■validity  of  the  reassessment.— Thayer  Lum- 
ber (>>.  T.  City  of  Muskegon  (Mich.)  189. 

I  514.  Where  it  was  apparent  that  property 
against  which  there  had  been  a  void  special  as- 
sessment for  public  improvements  had  been  ben- 
efited, relief  against  the  assessment  should  not 
preclude  a  proper  reassessment. — Weber  v.  City 
of  Detroit  (Jlich.)  670. 

(^  Knforoement  of  Assesaments  and  Spe- 
cial Taxes. 

Application    of    general    statutes    of   limitation, 

see  Limitation  of  Actions,  g  38. 
Election  of  remedies,  see  Election  of  Remedies, 

112. 

t  564.  Code  1897,  $  1448,  held  not  to  apply 
to  proceedings  for  the  sale  of  land  for  unpaid 
special  assessments. — Fisk  v.  City  of  Keokuk 
(Iowa)  896. 

(  577.  Mere  delay  in  issuing  certificates  of 
purchase  at  a  sale  for  the  nonpayment  of  spe- 
cial assessments  for  a  street  improvement  held 
not  to  invalidate  the  sale. — Fisk  v.  City  of  Keo- 
kuk (Iowa)  806. 

J  578.  A  property  owner  cannot  attack  the 
e  of  land  for  nonpayment  of  a  special  assess- 
ment for  a  street  improvement,  or  have  the 
certificate  of  purchase  set  aside,  without  paying 
or  offering  to  pay  the  amount  of  the  as.sp!!s- 
ment  with  legal  interest. — Fisk  v.  City  of  Keo- 
kuk (Iowa)  896. 

X.  POUOE  POWER  Ain>  BE01JI.A. 
TIONS. 

(A)  Delesatlon,    Bxtent,    and    Bxereise    of 

Power. 

$  603.  "Erect,"  as  used  in  an  ordinance  re- 
lating to  fire  limits,  defined.— Red  T.>ake  Falls 
Milling  Co.  t.  City  of  Thief  River  Falls  (Minn.) 

872. 

(B)  Tlolstlona  and  Bnforeement  of  Revn- 

latlona. 

S  631.  Cit:^  ordinance  prohibiting  erection  of 
wooden  buildmgs  within  fire  limits  held  to  pro- 


hibit the  moving  of  an  already  constructed 
wooden  building  into  such  limits.— Red  Lake 
Falls  Milling  Co.  t.  City  of  Thief  River  Falls 
(Minn.)  872. 

XL  USE  AMD  ItEOUI.ATIOH  OF  PUB- 

UC   PX.ACES,   PROPERTY, 

AKB  WORKS. 

(A)  Streets   and  Otker  Pnbllc  VTar*' 

Acceptance  of  franchise  for  use  of  street,  see 

Franchises,  g  2. 
Presumptions  as  to  legality  of  proceeding  for 

widening  street,  see  Evidence,  S  83. 
Removal  of  telephone  pole  causing  obstruction, 

see  Telegraphs  and  Telephones,  {  10. 
Rights  of  telegraph  or  telephone  company   in 

use  of  street,  see  Telegraphs  and  Telephones, 

i  10. 

(  703.  Ordinarily  a  person  may  stop  at  any 
point  of  a  street  where  he  chooses,  provided 
ne  does  not  unduly  obstruct  the  way,  but  in 
an  emergency  involving  the  safety  of  proi>erty 
and  person,  that  course  is  exacted  which  an 
ordinarily  prudent  man  would  exercise  for  their 
protection.- Delfs  ▼.  Dunshee  (Iowa)  230. 

i  703.  The  driver  of  a  well-broken  horse 
which  was  frightened  by  a  passing  automobile 
was  entitled  to  drive  it  anywhere  in  the  street 
he  might  choose,  and  it  was  not  negligence  to 
drive  close  to  the  curbing.— Delfs  v.  Dunshee 
(Iowa)  236. 

$  705.  Acts  30th  Gen.  Assem.  1904,  p.  43, 
c.  53,  ii  8,  9  (Code  Supp.  1907.  {§  1571h,  li571i), 
held  to  merely  define  the  duty  of  an  automo- 
bile operator  on  request  or  signal,  and  not  tc 
relieve  him  from  the  obligation  to  exercise  ordi- 
nary care  for  the  safety  of  others,  or  the  duty 
to  exercise  reasonable  caution  in  passing  a 
horse  or  other  animal  in  absence  ot  any  re- 
quest or  signal. — Delfs  v.  Dunshee  (Iowa)  230. 

{  705.  To  move  an  automobile  in  a  city 
street  at  a  higher  speed  than  permitted  by  Acts 
30th  Gen.  Assem.  1904,  p.  45,  c.  53,  {  8,  is 
negligence.— Delfs   v.   Dunshee   (Iowa)   536. 

S  705.  One  may  travel  in  a  motor  vehicle 
on  streets,  but  in  doing  so  the  care  exacted  nec- 
essarily depends  somewhat  on  the  rate  of  the 
speed,  size,  and  appearance,  manner  of  move- 
ment, noise,  and  the  like  of  such  vehicle,  as 
well  as  the  means  of  locomotion  of  others  on 
the  highway.— Delfs  v.  Dunshee  (Iowa)  236. 

f  705.  The  circumstances  of  the  omission 
to  sound  the  signal  horn  or  give  other  warn- 
ing, together  with  the  nearness  of  an  automo- 
bile in  passing  from  the  rear  a  horse  and  ve- 
hicle in  a  street,  are  proper  to  be  considered, 
in  connection  with  the  sneed  at  which  the  car 
is  moving,  in  determining  negligence  in  its 
operation. — Delfs  v.  Dunshee  (Iowa)  230. 

I  705.  Whether  a  signal  by  a  horn  warning 
of  the  approach  of  an  automobile  in  a  city 
street  is  essential  to  the  exercise  of  ordinary 
care,  must  be  determined  from  the  circum- 
stances of  each  case. — Delfs  v.  Dunshee  (Iowa) 
236. 

i  705.  Where  defendant  sued  for  injuries 
for  frightening  a  horse,  where  an  automobile 
had  passed  the  horse  immediately  before,  and 
was  aware  of  the  fright  caused  thereby,  and 
that  it  was  running  toward  the  receding  car 
with  the  driver  still  in  the  cart,  it  was  in- 
cumbent on  him  to  exercise  care  commensurate' 
with  the  situation  in  whjch  be  found  himself, 
so  as  not  to  interfere  with  the  driver's  efforts 
to  regain  control  and  save  the  horse  and  him- 
self from  injury.— Delfs  v.  Dunshee  (Iowa)  236. 

(  705.  One  driving  in  the  street  is  not 
bound  to  keep  a  lookout  backwards,  and  is 
entitled  to  rely  on  the  exercise  of  ordinary 
care  by  those  approaching  from  the  rear.— 
Delfs  V.  Dunshee  (Iowa)  236. 


Topics,  division!,  *  seotloB  (i)  NDMBKRB  la  tbU  Indax,  A  Dm.  *  Am«r.  Digs.  *  Raportsr  Indssss  >crM 

Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1213 


f  705.  BecaDBe  a  street  is  frequented  by 
Automobiles,  one  driving  thereon  does  not  as- 
sume all  the  risk  of  having  his  horse  fright- 
ened thereby,  but  only  the  •  risk  incident  to 
their  operation  in  a  reasonably  careful  manner. 
— Delfs  V.  Dunshee  (Iowa)  236. 

{  705.  The  unlawful  speed  of  an  automobile 
in  passing  a  horse  in  the  str^t  from  the  rear, 
does  net  alone  warrant  a  recovery  for  injuries 
caused  by  its  taking  fright  and  running  away. 
—Delfs  V.  Dunshee  (Iowa)  230. 

i  706.  In  an  action  wherein  defendant's  lia- 
bility turned  on  the  question  of  frightening 
the  plaintiff's  horse  on  the  street  with  an  au- 
tomobile, evidence  as  to  the  characteristics 
and  habits  of  horses  was  admissible. — Delfs  v. 
Dunshee  (Iowa)  236. 

i  706.  In  an  action  for  frightening  a  horse 
with  an  automobile,  held,  that  an  objection 
to  a  question  to  defendant  as  to  whether  in 
passing  he  could  have  gotten  farther  from  the 
cart  which  the  home  drew  without  gettine 
on  the  street  car  track,  was  rightly  sastained, 
because  there  was  no  apparent  reason  for 
avoiding  the  track.— Del£s  t.  Dunshee  (Iowa) 
236. 

S  706.  In  an  action  for  injuries  claimed  to 
have  been  caused  by  negligence  in  frighten- 
ing a  horse  with  an  automobile  in  a  street, 
evidence  held  to  present  a  question  for  the 
jury  whether  defendant,  in  passing  the  horse 
from  behind,  as  he  did,  exercised  the  caution 
an  ordinarily  prudent  man  would  in  like  cir- 
cumstances.—Delfs  V.  Dunshee  (Iowa)  236. 

I  706.  In  an  action'  for  injuries  claimed  to 
hare  been  caused  by  frightening  a  horse  in  a 
street  with  an  automobile,  exceptions  to  in- 
structions submitting  to  the  jury  defendant's 
negligence  in  passing  at  an  excessive  rate  of 
speed,  held  not  well  taken.— Delfs  t.  Dunshee 
<Iowa)  236. 

{  706.  In  an  action  for  injuries  claimed  to 
have  been  caused  by  frightening  a  horse  in  a 
street  with  an  automobile,  held,  that  there  was 
no  error  in  view  of  the  evidence  in  submitting 
the  question  of  negligence  in  turning  in  front 
of  the  hoise  so  close  as  to  frighten  it. — Delfs 
v.  Dunshee  (Iowa)  236. 

I  706.  In  an  action  for  injuries  claimed  to 
have  been  caused  by  frightening  a  horse  with 
an  automobile  in  a  street,  held,  that  no  excep- 
tions could  be  ta^n  to  an  instruction  for  not 
indicating  the  care  defendant  was  bound  to 
exercise  in  particular  circumstances,  where 
the  court  in  another  instruction  bad  correctly 
defined  negligence.— Delfs  y.  Dunshee  (Iowa) 
236.  ' 

f  706.  In  an  action  for  injuries  claimed  to 
have  been  caused  by  frightening  a  horse  in  a 
street  with  an  automobile,  evidence  held  to 
bring  the  question  for  the  Jury  as  to  whether 
defendant,  after  passing  and  frightening  a 
horse,  exercised  care  commensurate  with  the 
situation,  so  as  not  to  interfere  with  the 
efforts  of  the  driver  to  regain  control  to  save 
the  horse  and  himself  from  injury.— I>elfs  v. 
Dunshee  (Iowa)  236. 

f  706.  In  an  action  for  frightening  a  horse 
with  an  automobile  in  a  street,  an  instruction 
exacting  of  defendant  knowledge  that  a  horse 
of  ordinary  disposition  would  become  fright- 
ened at  an  automobile  passing  under  the  cir- 
cumstances disclosed  in  the  evidence,  held  more 
favorable  to  defendant  than  required.— Delfs  t. 
Dunshee  (Iowa)  236. 

XII.  TOBT8. 

<B)  Acta     or     Omlaslona     of     Oflcera     or 
Asenta. 

S  747.  A  city  in  maintaining  and  operating 
waterworks  for  public  and  private  use  held  lia- 
ble for  injuries  to  a  citizen  by  the  negligence 


of  its  servants  engaged  in  such  department- 
Piper  V.  City  of  Madison  (Wis.)  730. 

i  747.  That  a  city  used  its  waterworks  for 
fire  protection  did  not  relieve  it  from  liability 
for  the  neglieent  acts  of  its  servants  operating 
the  system  except  when  performed  in  the  work 
of  extinguishing  fires.- Fiper  v.  City  of  Madi- 
son (Wis.)  730. 

(C)  Defeeta  or  Obatraotlona  In  Streeta  aad 

Other  Fnbllo  Wa^a. 

Amendment  of  pleading  setting  up  new  cause  of 
action  for  injuries  from  defects,  see  Pleading, 
1248. 

Application  of  general  statutes  relating  to  in- 
fancy as  tolling  limitations,  see  Limitation 
of  Actions,  {  72. 

Election  between  allegations  in  pleading  in 
action  for  injuries,  see  Pleading,  {  309. 

(  762.  A  city  held  not  to  escape  liability  for 
injuries  to  a  traveler  from  a  sewer  trench  neg- 
ligently left  unguarded  at  night  by  a  licensed 
plumber  because  the  defect  was  the  result  of 
the  plumber's  negligence. — Bonneville  v.  City  of 
Alpena  (Mich.)  6ia 

§  762.  In  an  action  against  a  city  for  inju- 
ries sustained  in  driving  into  an  open  culvert, 
held,  that  the  city  could  not  escape  responsibil- 
ity by  charging  the  workmen  engaged  in  the 
work  with  the  duty  of  guarding  same. — ^Arm- 
strong v.  City  of  Auburn  (Neb.)  43. 

{  788.  Saginaw  City  Charter,  Loc  Acts  1905, 
p.  751,  No.  566,  tit.  24,  f  24,  held  applicable 
to  all  cases  arising  under  Comp.  Laws  1897,  M 
3441-3445,  making  a  city  liable  for  negligently 
failing  to  keep  its  streets  in  repair.— Forsyth  v. 
City  of  Saginaw  (Mich.)  523. 

i  807.  A  pedestrian  using  a  defective  side- 
walk held  not  guilty  of  contributory  negligence, 
unless  in  the  light  of  the  circumstances  known 
to  him  it  was  imprudent  so  to  do.— Jackson  v. 
City  of  Grinnell  (Iowa)  911. 

I  812.  The  object  of  the  notice  of  injury  from 
defective  streets  or  sidewalks  required  by  Code 
1807,  {  3447,  par.  1,  held  to  enable  the  city, 
while  the  evidence  is  attainable,  to  investigate 
the  question  of  its  liability. — Harrison  v.  City 
of  Albia  (Iowa)  816. 

f  812.  A  notice  of  the  place  of  an  accident 
On  a  defective  sidewalk  held  sufficient.— Harri- 
son v.  City  of  Albia  (Iowa)  816. 

i  812.  A  notice  of  claim  for  personal  injuries 
against  a  city  held  sufficient. — Knudsen  v.  City 
of  Muskegon  (Mich.)  510. 

8  816.  In  an  action  against  a  city  for  per- 
sonal injuries,  certain  evidence  held  inadmis- 
sible for  want  of  proper  notice,  as  required  by 
Detroit  Charter  1904,  §  270.— Lyle  v.  City  of 
Detroit  (Mich.)  108. 

{  818.  In  an  action  for  injuries  to  pedes- 
trian on  a  defective  sidewalk,  evidence  of  the 
condition  of  the  walk  soon  aiter  the  aocident 
held  admissible  on  the  condition  of  the  walk  at 
the  time  of  the  accident,  and  on  the  question 
whether  the  city  ought  to  have  discovered  and 
remedied  the  defect.— Jackson  v.  City  of  Grin- 
nell (Iowa)  911. 

S  821.  Whether  it  was  prudent  for  a  pedes- 
trian to  use  at  night  a  defective  sidewalk  held 
for  the  jury.— Jackson  v.  City  of  Grinnell 
(Iowa)  911. 

(D)  Defeeta    or    Obatraetloat     In     Sewera, 

Drslma,  aad   "Water   Conraea. 

S  830.  A  municipality  may  after  it  has  pro- 
vided a  drain  or  sewer  for  carrying  off  surface 
water  discontinue  such  drain  or  sewer  if  the 
adjacent  landowners  arc  thereby  left  in  no 
worse  condition  with  reference  to  surface  water 
set  back  than  it  the  sewer  had  not  been  con- 
structed.—Peck  V.  City  of  Barabod  (Wis.)  740. 


7or  cases  In  Deo.  Dig.  A  Amer.  Olgs.  1907  to  date  &  Indexu  lee  same  topic  *  section  (i)  NCUBER 

Digitized  by  LjOOQ  IC 


12U 


122  NORTHWESTERN  REPORTER. 


i  831.  A  municipal  corporation  is  not  liable 
in  damages  to  a  landowner  because  a  sewer  is 
inadequate  by  reason  of  negligence  in  adopting 
plans  in  the  first  place,  or  by  reason  of  negli- 
gently failing  to  maintain  the  sewer  in  good 
working  order  thereafter  to  carry  off  surface 
water  as  fast  as  it  accumulates.— Peck  t.  City 
of  Baraboo  (Wis.)  740. 

i  832.  A.  city  which  first  collects  surface 
water  in  a  sewer  or  drain  and  thereafter, 
through  negligent  construction  or  maintenance 
of  the  sewer  or  drain  allows  the  water  to  es- 
cape on  land  adjacent  to  the  sewer,  is  liable 
for  damages  caused  thereby.— Peck  y.  City  of 
Baraboo  (Wis.)  740. 

{  832.  A  municipal  corporation  is  not  liable 
in  damages  to  a  landowner  because  K  sewer  is 
inadequate  by  reason  of  negligence  in  adopting 
plans  in  the  first  place,  or  by  reason  of  negli- 
gently failing  to  maintain  the  sewer  in  good 
working  order  thereafter  to  carry  off  surface 
water  as  fast  as  it  accumulates.— Peck  y.  City 
of  Baraboo  (Wis.)  740. 

§  835.  A  city  may,  by  construction  and  grad- 
ing of  streets,  change  the  flow  of  surface  water 
so  as  to  bring  down  upon  a  lot  owner  from  new 
watersheds,  surface  water  which  would  not 
otherwise  have  taken  that  coarse  or  reached 
his  lot— Peck  v.  City  of  Baraboo  (Wis.)  740. 

Xm.  FISOAI.  MAHAGEBCEirr,  PTTB. 

UO  DEBT,  SECURITIES,  AND 

TAXATION. 

(A)  Poirer  to  Imonr  Indebtedacaa  mni  Bx« 

pendltnrea. 

i  860.  A  resolution  of  the  common  council, 
directing  the  city  controller  to  pay  any  bills  ap- 
proved by  the  mayor  out  of  a  certain  appropria- 
tion, held  void  as  in  contravention  of  provisions 
of  the  city  charter  and  not  validated  by  the  fact 
that  the  mayor  intended  to  pursue  the  charter 
course. — Attorney  General  y.  Mnrphy  (Mich.) 
260.  F-..    V         / 

I  860.  Under  Detroit  City  Charter,  a  resolu- 
tion of  the  common  council,  appropriating  and 
placing  at  the  disposal  of  the  mayor  a  certain 
sum  to  investigate  the  street  railway  question 
of  the  city,  Aeld  unauthorized. — ^Attorney  Gen- 
eral T.  Murphy  (Mich.)  260. 

{  863.  Limit  on  village  indebtedness  provided 
by  Comp.  Iaws  1897,  {  2873,  held  to  apply 
only  to  purposes  in  such  section  provided  for, 
and  not  to  those  provided  for  in  Comp.  Laws 
1897,  U  2852-^67.— Wightman  v.  Village  of 
Tecumseh  (Mich.)  122. 

(B)  Administration     In     General,     Appro- 
priations, 'Warrants,  and  Payment. 

I  891.  An  appropriation  for  constructing  a 
pumping  station  and  machinery  held  to  include 
the  cost  of  a  site  therefor. — Union  Trust  Co.  v. 
Common  Council  of  City  of  Detroit  (Mich.)  S21. 

(O)  Bonds  and  Other  Soenritles,  and  Slnlc- 
Ins  Fnnda. 

{  907.  The  Constitution  and  statutes  provid- 
ing for  the  issuance  of  municipal  bonds  are 
more  strictly  construed  in  actions  to  prevent 
their  issuance  than  in  actions  to  prevent  their 
payment.— Stem  v.  City  of  Fargo  (N.  D.)  403. 

{  917.  A  resolution  of  a  city  council,  provid- 
ing for  the  issuance  of  bonds  and  a  notice  of 
the  election,  held  not  to  state  the  amount  of 
bonds  to  be  voted  upon,  as  required  by  Rev. 
Codes  1905,  g  2678,  and  the  proceedings  thereby 
invalidated.— Stem  v.  City  of  Fargo  (N.  D.)  403. 

$  917.  A  resolution  of  a  city  council  provid- 
ing for  a  bond  issue  election  and  a  notice  of 
such  election,  under  Rev.  Codes  1905,  J  2678, 
must  state  the  purpose  of  the  l)onds. — Stem  v. 
City  of  Fargo  (N.  D.)  403. 


I  918.  A  village  election  on  the  qaestion  of 
a  bond  issue  held  not  invalidated  by  a  mistake 
in  the  printing  of  the  ballots. — Wightman  v. 
Village  of  Tecumdeh  (Mich.)  122. 

i  918.  Illegal  votes  cast  at  a  village  election 
to  determine  the  question  of  a  bond  issue  could 
not  be  counted  t$  determine  whether  the  req- 
uisite two-thirds  vote  had  been  cast— Wightman 
y.  Village  of  Tecumseh  (Mich.)  122. 

i  918.  A  municipal  bond  issue  election  held 
to  join  two  propositions  in  such  a  manner 
that  the  voter  must  vote  for  or  against  both, 
and  for  that  reason  invalid. — Stem  v.  City  of 
Fargo  (N.  D.)  408. 

J  918.  The  test  whether  a  question  submit- 
to  the  voters  of  the  issuance  of  mnnicipal 
bonds  includes  more  than  one  purpose  held 
whether  the  objects  of  the  bonds  so  issued 
have  a  natural  connection.— Stem  v.  Oty  of 
Fargo  (N.  D.)  403. 

{  918.  The  question  of  the  issuance  of  mu- 
nicipal bonds  must  not  be  submitted  in  snch  a 
manner  as  to  require  a  single  vote  for  or 
against  the  issuance  of  bonds  tor  two  or  more 
purposes.— Stem  v.  City  of  Fargo  (N.  D.)  403. 

i  918.  A  municipal  bond  issue  election,  pur- 
suant to  Const  S  183,  and  Rev.  Codes  IQOio,  { 
2U78,  for  the  construction  of  a  waterworks 
system  on  a  notice  which  did  not  state  the 
amount  of  the  bonds  held  invalid.— Stem  v. 
City  of  Fargo  (N.  D.)  403. 

S  918.  A  resolution  of  a  city  council,  pro- 
viding for  a  bond  issue  election  and  a  notice 
of  such  election,  under  Rev.  Codes  1905,  f 
2G78,  must  state  the  purpose  of  the  bonds.— 
Stem  V.  City  of  Fargo  (N.  D.)  403. 

S  918.  The  object  of  notice  of  a  municipal 
bond  issue  election,  and  the  requirement  that 
the  amount  of  the  bonds  l>e  stated,  declared.— 
Stem  V.  City  of  Fargo  (N.  D.)  403. 

t  918.  The  power  to  anthoriie  the  iasn- 
ance  of  bonds  is  vested  in  the  votera,  and  they 
cannot  delegate  it  to  the  city  council.— Stem 
V.  City  of  Fargo  (N.  D.)  403. 

S  918.  A  resolution  of  a  city  council,  provid- 
ing for  the  issuance  of  bonds  and  a  notice  of 
the  election,  held  not  to  state  the  amount  of 
l)ond8  to  be  voted  upon,  as  required  by  Rev. 
Codes  1905,  {  2678,  and  the  proceedings  there- 
by invalidated.— Stem  y.  City  of  Fargo  (N.  D.) 

S  918.  The  duty  of  a  dty  auditor,  when  ^v- 
ing  notice  of  a  bond  issue  election,  is  minis- 
terial, and  such  notice  must  follow  the  terms 
of  .tlie  resolution  authorizing  the  election.— 
Stem  y.  City  of  Fargo  (N.  D.)  403. 

(D)  Taxes   and   Other   Reyenne,    and   Ap- 

plication Thereof. 

§  974.  If  the  board  of  review  of  a  city  bad 
no  jurisdiction  to  assess  railroad  proper^  for 
taxes,  the  question  may  be  raised  on  certiorari. 
—Stole  V.  Wilicuts  (Wis.)  1048. 

(E)  Rlchts   and   Remedies   of   Taxparers. 

i  990.  A  city  taxpayer  may  sue  to  test  the 
validity  of  contracts  awarded  on  bids  arbitrar- 
ily considered  in  determining  the  lowest  bid- 
der, and  the  amount  by  which  his  individual 
tax  may  be  increased  is  immaterial  to  bis 
right  to  sue.— Miller  v.  City  of  Des  Moines 
(Iowa)  226. 

i  1000.  Where  a  void  contract  for  city 
printing  is  done  in  good  faith  and  at  a  reason- 
able price  to  the  lowest  responsible  bidder  em- 
ploying unidn  labor,  and  the  work  was  done 
and  accepted  by  the  city  before  it  was  held  to 
be  void  in  an  equitable  action  by  taxpayers, 
held  that  plaintiffs  were  not  entitled  to  a  de- 
cree for  repayment  of  the  money  paid  for  the 
work.— Miller  v.  City  of  Des  Moines  (Iowa) 
226. 


Topics,  divisions,  A  section  (i)  NtTMBERS  In  thU  Index,  A  Dm.  A  Amar.  Digs.  A  Raportar  Inaezai  agraa 

Digitized  by  LjOOQ  l€ 


INDEX-DIGEST. 


1215 


ZV.  AOTXOHS. 

ComputaUon  of  general  statutes  of  limitation, 

see  Limitation  of  Actions,  §  66.' 
Necessity  of  bond  on  appeal  by  town  ot  city, 

see  Appeal  and  Error,  {  3Z4. 

MURDER. 

See  Homicide,  |  18. 

MUTUAL  AID  SOCIETIES. 

See  Beneficial  AMociations. 

MUTUAL  BENEFIT  INSURANCL 

See  Insurance,  {§  693-819. 

NATIONAL  BANKS. 

See  Bank*  and  Banking,  |  260. 

NAVIGABLE  WATERS. 

See  Waters  and  Water  Courses. 
Boundaries,  see  Boundaries,  {§  15,  18. 
Condemnation  of  navigable  bond  for  public  use, 
see  Eminent  Domain,  §  45. 

Z.  BIGHTS   OF  PUBUO. 

Capacity  of  corporation  to  acquire  water  power 
site,  see  Corporations,  S  434. 

Construction  of  dam  in  exercise  of  ^wer  of 
eminent  domain,  see  Eminent  Domain,  f  24. 

Erection  of  dam  in  navigable  stream  as  inter- 
ference with  interstate  commerce,  see  Com- 
merce, H  18,  20. 

Right  to  organize  corporation  for  purchase  and 
Mvelopment  of  water  power,  see  Corporations, 

i  14. 

Special  or  local  laws  relating  to  construction 
of  dams,  see  Statutes,  {  70. 

Subject  and  title  of  statute  relating  to  con- 
struction of  dams,  see  Statutes,  {  112. 

i  1.  In  proceedings  to  create  a  drainage  dis- 
trict, which  involTed  the  destruction  of  a  pond 
created  by  a  dam,  evidence  held  to  sustain  a 
finding  that  the  pond  was  navigable  in  fact. — 
Shepard  Drainage  Dist.  v.  Eimerman  (Wis.) 
775. 

t  1.  A  river  capable  of  floating  logs  is  a  nav- 
igable stream.— In  re  Southern  Wisconsin  Pow- 
er Co.  (Wis.)  801,  809 ;  Appeal  of  Black  Hawk 
Land  Co.  <Wis.)  801;  Appeal  of  Whitnall 
(Wis.)  809. 

f  4.  Navigable  waters  in  the  territories  are 
held  as  highways  of  travel  and  commerce  by 
the  government,  but,  with  the  soil  beneath 
them,  pass  to  the  new  states  on  their  admis- 
sion to  the  Union  in  virtue  of  their  sovereignty, 
subject  to  the  regulation  of  commerce  by  Con- 
gress.—State  T.  Jones  (Iowa)  241. 

,(  16.  If  a  pond  was  navigable  in  fact,  the 
rights  of  the  public  therein  were  as  much  en- 
titled to  protection  as  if  it  was  much  larger. — 
Shepard  Drainage  Dist.  v.  Eimerman  (Wis.) 
775. 


m. 


BIPARXAN  AMD  XiITTOBAX. 
BIGHTS. 


Effect  of  avulsion  on  boundaries  of  state  bor- 
dering on  stream,  see  States,  I  12. 

Materiality  and  certainty  of  evidence,  see  Evi- 
dence, S  144. 

I  39.  Evidence,  in  an  action  against  a  boom 
company  for  the  washing  away  of  a  portion  of 
a  farm  of  a  riparian  owner  and  for  the  loss 
of  the  use  of  another  portion  thereof,  held  to 
sustain  a  verdict  for  plaintiff.— Casey  v.  Mis- 
sissippi &  Rum  River  Boom  Co.  (Minn.)  376. 


(  89.  Sp.  Laws  1862,  p.  360,  e.  86,  |  15, 
held  not  to  absolve  a  boom  company  from  the 
duty,  of  exercising  due  care  in  the  movement 
of  logs  to  prevent  injury  to  riparian  owners. 
— Casey  v.  Mississippi  &  Rum  River  Boom  Co. 
(Minn.)  376. 

I  39.  Boom  company,  as  against  the  pub- 
lic, held  entitled  to  obstruct  river  to  discharge 
its  duty  as  a  carrier  of  logs,  but  not  so  as  to 
overflow  riparian  land. — Casey  v.  Mississippi  & 
Rum  River  Boom  Co.  (Minn.)  376. 

I  39.  The  fact  that  a  dam  across  a  naviga- 
ble stream  was  an  unlawful  structure  because 
it  obstructed  the  stream  without  legislative  au- 
thority did  not  prevent  the  running  of  limita- 
tions against  an  upper  riparian  proprietor. — 
Green  Bay  &  Mississippi  Cfanal  Co.  y.  Telulah 
Paper  Co.  (Wis.)  1062. 

i  39.  St.  1808, 1  4221,  subd.  3,  first  enacted 
by  Laws  1862,  p.  105,  c.  184,  held  not  confined 
to  milldams  erected  under  chapter  l46,  St.  1808 
(Rer.  St.  1858,  c.  66),  authorizing  the  construc- 
tion of  dams  across  nonnavigable  streams,  but 
applies  to  a  dam  built  across  a  navuable 
stream. — Green  Bay  A  Mississippi  Canal  Co.  v. 
Telulah  Paper  Co.  (Wis.)  1062. 

I  39.  A  dam  erected  across  a  navigable 
stream  to  create  power  to  operate  mills,  and 
which  is  used  to  operate  mills,  is  a  milldam 
within  St.  1898,  i  4221,  subd.  3.— Green  Bay  & 
Mississippi  Canal  Co.  v.  Telulah  Paper  Co. 
(Wis.)  1062. 

I  39.  A  dam  across  a  navigable  stream  held 
to  cause  a  flowing  of  lands  within  St.  1898,  § 
4221,  snbd.  3. — Green  Bay  &  Mississippi  Canal 
Co.  y.  Telulah  Paper  Co.  (Wis.)  1062. 

I  44.  The  abandoned  channels  of  river  beds, 
referred  to  by  Act  April  11,  1904  (Acts  30th 
Gen.  Assem.  1904,  p.  166,  c  185),  providing  for 
the  survey  and  sale  of  abandoned  river  beds 
within  the  jurisdiction  of  the  state,  are  not  such 
as  are  created  by  accretions  and  relictions,  but 
by   avulsions. — Coulthard   y.   Mcintosh   (Iowa) 

NAVIGATION. 

See  Navigable  Waters,  H  1-16. 

NAVIGATION  COMPANIES. 

Liabilities  of  officers  for  failure  to  make  re- 
ports, see  Corporations,  |  838. 

NEGLIGENCE 

Causing  death,  see  Death. 

By  partioular  olauet  of  pmr»on». 

See  Carriers,  gf  133,  135,  172,  280-320;  Mu- 
nicipal Corporations,  {{  747-835;  Railroads, 
S§  227-412. 

Employers,  see  Master  and  Servant,  g|  88-96. 

Telegraph  or  telephone  companies,  see  Tele- 
graphs and  Telephones,  gg  32-70. 

Condition  or  u»e  of  particular  $pecie»  of  prop- 
erty, work*,  machinery,  or  other 
inttrumentalittei. 
See   Bridges,    gg   38-46;    Electricity;    Explo- 
sives:   Highways,  f§  192-214;    Railroads,  gg 
227-412 ;    Street  Railroads,  gg  87-117. 

I.  AOT8  OB  OMISSIONS  OONBTITUT- 
IMG  HEOUGENCE. 

(C)  Condition  and  Use  of  Land,  Bntldlnars, 
and  Other  Btmctnrea. 

g  35.  A  complaint  for  injuries  through  being 
struck  by  glass  falling  from  the  windows  of  a 
building  under  defendant's  control  ketd  to  state 
a  good  cause  of  action. — Bannigan  v.  Woodbury 
(Mich.)  531. 


Tot  casM  la  Oso.  Dig.  A  Amer.  Digs.  1M7  to  date  *  Indezss  sea  same  topic  A  ssotlon  (g)  NUMBER 

Digitized  by  LjOOQ  l€ 


1216 


122  NORTHWESTERN  REPORTER. 


n.  PROXIMATE  CAUSE  OF  UUXTKY. 

Injuries  from  electricity,  see  ESectricity,  g  19. 

{  56.  Falhire  of  railroad  company,  on  bring- 
ing a  horse  afflicted  with  glanders  into  the 
state,  to  have  him  inspected,  under  Laws  1907, 
p.  491.  c.  3S5,  held  the  cause  of  damage  to  one 
thereafter  purchasing  it.— Evans  ▼.  Chicago  & 
N.  W.  Ry.  Co.  (Minn.)  876. 

HI.   OONTBIBUTOBT  NEOUOEMOE. 

Of  passenger,  see  Carriers,  §§  333,  830. 

Of  person  injured  by  electricity,  see  Electrldty, 
I  18. 

Of  person  injured  by  operation  of  railroad,  see 
Railroads, Ij  278,  383. 

Of  person  injured  by  operation  of  street  rail- 
road, see  Street  Railroads,  g$  99,  101. 

Of  servant,  see  Master  and  Jservant,  IS  231- 
248,  274,  288,  296. 

(A)  Persona  Injarea  In  General. 

i  67.  A  person  falling  into  a  dark  shaft  held 
negligent — Steger  v.  Immen  (Mich.)  104. 

§  82.  Under  the  rule  that  contributory  negli- 
gence must  proximately  have  contributed  to  the 
injury,  and  that  no  act  or  omission  is  the  prox- 
imate cause  unless  the  person  guilty  ought  by 
ordinary  diligence  to  have  anticipated  that  on 
injury  might  result,  knowledge  which  may  be 
acquired  by  ordinary  care  is  knowledge  possess- 
ed.—Lehman  V.  Chicago,  St.  P.,  M.  &  O.  Ry. 
Co.  (Wis.)  1059. 

IV.  AOTIOK8. 
(B)  Bvldenee. 

In  action  for  injuries  caused  by  defect  in  Street, 
see  Municipal  Corporations,  f  818. 

In  action  for  injuries  caused  by  electricity,  see 
Electricity,  {  19. 

$  134.  One  suing  for  a  personal  injury  neg- 
ligently Inflicted  by  another  cannot  recover  on 
proof  of  facts  which  are  equally  consistent  with 
the  absence  of  negligence  on  the  part  of  the 
defendant.— Heath  v.  Calkins  (Mich.)  84. 

(O  Trlnl,  Jndarment,  and  Revleir. 

I  136.  Where  the  facts  are  found  or  are  un- 
disputed showing  contributory  negligence,  and 
there  is  no  room  for  conflicting  inferences,  it  is 
a  question  of  law. — Vetter  v.  Southern  Wis- 
consin Ry.  Co.  (Wis.)  731. 

S  136.  What  constitutes  proximate  cause  in 
law  is  for  the  court,  while  what  constitutes  prox- 
imate cause  in  a  given  case  is  ordinarily  for 
the  jury.— Stumm  v.  Western  Union  Telegraph 
Co.  (Wis.)  1032. 

i  136.  The  question  of  the  contrtbutoiy  negli- 
gence of  one  injured  by  the  negligence  of  an- 
other is  usually  a  question  for  the  jury.— Leh- 
man T.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  (Wis.) 
1059. 

{  138.  In  an  action  for  Injuries  through  neg- 
ligence, defendant  held  entitled  to  an  instruction 
that  plaintiff  had  the  burden  of  proving  by  a 
preponderance  of  the  evidence  all  the  material 
facts  necessary  to  his  recovery.— Rawlings  v. 
Clyde  Flank  &  Macadamized  Road  Co.  (Mich.) 
504. 

$  139.  In  a  personal  injuir  action  a^inst 
the  manufacturer  of  a  thresning  machine,  a 
charge  held  not  misleading.— Pierce  v.  C.  H.  Bid- 
well  Thresher  Co.  (Mich.)  628. 

NEGOTIABLE  INSTRUMENTS. 

See  Bills  and  Notes. 

NEWLY  DISCOVERED  EVIDENCE. 

Ground  for  new  trial  in  civil  actions,  see  New 

Trial.  §§  102,  104. 
Grounds  for  bill  of  review,  see  Equity,  i  447. 


NEW  TRIAL 

In  condemnation  proceedings,  see  Eminent  D<^ 

main,  f  238. 
In    crimmal   prosecutions,    see    Criminal   Law, 

S§  939,  964. 
Necessity  of  motion  for  purpose  of  review,  see 

Appeal  and  Error,  {  293. 
Pendency  of  motion  for  a  new  trial  in  justice's 

court  as  affecting  right  to  take  appeal,  see 

Justices  of  the  Peace,  $  163. 
Review  of  decisions,  see  Appeal  and  Error,  H 

933,  977,  979. 

I.  NATURE  AND  SCOPE  OF  REBIEDT. 

S  9.  A  general  verdict  having  been  returned 
on  several  items  in  a  counterclaim,  the  court 
did  not  err  in  granting  a  new  trial  as  to  one 
item  and  deducting  the  amount  from  the  ver- 
dict.—J.  I.  Case  Threshing  Mach.  Co.  v.  Fish- 
er &  Aney  (Iowa)  575. 

H.  GROUNDS. 

(D)  Dlaanallflcatlan   or   Klseondnet   of  or 
ASectlnar  Jnry. 

i  44.  The  fact  that  during  the  trial  of  a 
proceeding  to  establish  a  claim  against  a  de- 
cedent's estate  a  number  of  the  jurors  read 
certain  newspaper  articles  held  not  a  ground 
of  mistrial. — Forsythe  t.  Thompson's  Estate 
(Mich.)  219. 

(F)  Terdlct  or  Flndlnsa  Contrary  to  Idiw 
or  B-vldeaee. 

{  68.  Where  the  verdict  was  against  the 
testimony  on  a  material  issue,  a  new  trial 
sliould  have  been  granted. — Conley  t.  Supreme 
Court,  I.  O.  F.  (Mich.)  567. 

(O)  Sarprlse,   Aoeldent,    Inadverteaee,    or 
Mistake. 

§  91.  Denial  of  motion  for  new  trial  for  in- 
advertence of  counsel  in  not  discovering  a  ar- 
ticular statute  held  not  an  abuse  of  discretion. 
— Slocum  V.  McLaren  (Minn.)  871. 

(H)  Newlr  Dlaoo-rered  Bvldenee. 

§  102.  Where  no  good  reason  was  shown 
why  alleged  newly  discovered  evidence  was  not 
discovered  before  the  cause  had  been  fully  tried 
and  the  verdict  returned,  the  refusal  to  grant 
a  new  trial  was  proper. — Jackson  y.  City  of 
Grinnell  (Iowa)  911. 

g  102.  A  new  trial  will  not  be  granted  for 
newly  discovered  evidence,  where  such  evidence 
might  have  been  produced  with  ordinary  dili- 
gence.— First  Nat.  Bank  v.  Union  Trust  Co, 
(Mich.)  547. 

§  102.  New  trial  for  newly  discovered  evi- 
dence held  properly  denied. — Newbury  v.  Great 
Northern  Ry.  Co.  (Minn.)  1117. 

I  102.  To  warrant  a  new  trial  for  newly 
discovered  evidence,  held  that  it  must  appear 
that  applicant  exercised  certain  diligence.— In  re 
Rieger's  Estate  (Neb.)  8G0 ;  Rieger  v.  Schaible, 
Id. 

8  102.  A  new  trial  will  not  be  granted  for 
newly  discovered  evidence,  where  not  produced 
at  the  trial  because  movant  had  forgotten  its 
existence.— In  re  Rieger's  Estate  (Neb.)  860; 
Rieger  y.  Schaible,  Id. 

I  104.  It  is  not  error  to  refuse  a  new  trial 
on  the  ground  of  newly  discovered  evidence 
which  is  merely  cumulative.— Jackson  t.  City  of 
Grinnell  (Iowa)  911. 

m.  PROCEEDINGS  TO  PROCXTRE 
NEW   TRIAIi. 

S  116.  Where  issues  in  equity  are  submitted 
to  the  jury,  defeated  party  may  apply  for  new 
trial   without  waiting  for  findings,  where  tht 


Topics,  dlvlsloni,  *  lection  (U  NUMBERS  in  this  Index,  *  Dsc.  *  Amer.  Digs.  *  Reporter  Indezaa  agrat 

Digitized  by  VjOOQ  l€ 


INDBX-DIGBST. 


1217 


verdict  ia  deciglve  ef  the  case.— In  re  Buzalsky'a 
Estate  (Minn.)  322;   Buzalsky  t.  Buzalsky,  Id. 

i  166.  A  party  is  not  entitled  to  a  new  trial 
because  of  the  death  of  the  official  reporter  and 
the  inability  of  any  one  to  transcribe  his  short- 
hand notes.— Boss  v.   Leader  (Iowa)   812. 

NEXT  OF  KIN. 

See  Descent  and  Distribution. 

NOMINATION. 

For  office,  see  Elections,  {  120. 

NONRESIDENCE. 

Appointment  of  guardian  of  property  on  non- 
resident lunatic,  see  Insane  Persons,  ({  32, 
33,  36. 

Of  executors  as  ground  for  removal,  see  Execu- 
tors and  Administrators,  S  35. 

NONSUIT. 

Before  trial,  see  Dismissal  and  Nonsuit. 

NONUSER. 

Of  rights  acquired  in  exercise  of  power  of  emi- 
nent domain,  see  Eminent  Domain,  |  3^ 

NOTES. 

Promissory  notes,  see  Bills  and  Notes. 

NOTICE. 

Inclusion  or  exclnsion  of  Sunday  in  computa- 
tion of  time  for  giving  notice,  see  Time,  |  10. 

A$  affecting  particular  clat$e$  of  perioni. 
See  Vendor  and  Purchaser,  |  231. 
Co-tenants,  see  Tenancy  in  Common,  |  29. 
Insurance  company,  notice  to  agent  as  notice 

to  company,  see  Insurance,  81  95,  378. 
Purchasers  of  bill  or  note,  see  Bills  and  Notes, 

{  335. 

Of  partic¥lar  facts,  acta,  or  proceedino*  ftot 

judicial. 

Defect  or  obstruction  in  street,  see  Municipa> 

ConMrations,  |  788. 
Election   to  determine  question  of  issuance  of 
municipal  bonds,  see  Municipal  Corporations, 

8  91&  K  1~  "-, 

Establishment  of  highway,  see  Highways,  {  30. 

Local  option  election,  see  Intoxicating  Liauors, 
»  33. 

Meeting  of  town  board,  see  Towns.  {  26. 

Nonpayment  or  protest  of  bill  or  note,  see  Bills 
and  Notes,  §  401. 

Repair  of  property  owned  by  tenancy  in  com- 
mon, see  Tenancy  in  Common,  {  29. 

To  redeem  from  tax  sale,  see  Taxation,  {  704. 

Of  particular  judicial  proceedingt. 

See  Discovery,  {  97. 

Appeal,  see  Appeal  and  Error,  Si  413-417. 

For  appointment  of  guardian  of  property  of  in- 
sane i>erson,  see  Insane  Persons,  |  33. 

For  claim  of  injury  on  defective  street,  see 
Municipal  Corporations,  |  812. 

Proceedings  for  commitment  of  at>andoned  chil- 
dren, see  Infants,  |  19. 

S  10.  rnder  Code,  f  4681.  a  return  by  a 
sherifF  of  service  of  notice  of  claim  for  damages 
on  defendant  telegraph  company,  which  was 
not  sworn  to,  held  not  admissible  in  evidence.— 
iMarkley  v.  Western  Union  Telegraph  Co.  (Iowa) 
130. 


NUISANCL 

Violation  of  liquor  laws,  see  Intoxicating  liq- 
nbrs,  g{  263-280. 

OATH. 

Verification  of  proof  of  service  of  notice,  see 
Notice,  \  10. 

I  1.  "Oath"  defined.— Pumpbrey  ▼,  State 
(Neb.)  10. 

{  4.  A  professional  statement  of  an  attorney, 
when  received  by  the  court,  is  equivalent  to  an 
oath.— In  re  Winsiow's  WUl  (Iowa)  971. 

OBJECTIONS. 

For  purpose  of  review,  see  Appeal  and  Error, 

It  212-233. 
To  confirmation  of  assessment  of  benefits  from 

drain,  see  Drains,  g  81. 
To  public  improvements  under  state  authority, 

see  States,  %  83. 

OBLIGATION  OF  CONTRACTS. 

Laws  impairing,  see  Constitutional  Law,  if 
121,  126/ 

OBSTRUCTIONS. 

Of  highways,  see  Highways,  g§  192-214. 

OCCUPATION. 

Of  teal  property,  see  Use  and   Occupation. 

OFFER. 

Of  proof,  see  Trial,  $  41-57. 

Proposals   for   contract,   see   Contracts,   |{   22, 

OFFICERS. 

Assignability  of  salary,  see  Assignments,  i  15. 
Bmbeczlement,  see  Embezzlement. 
Mandamus,  see  Mandamus,  {{  66-100. 
Quo  warranto,  see  Quo  Warranto. 

Particular  elaut*  of  of/iceri. 

See  Judges ;  Justices  of  the  Peace  ;  Receivers ; 
Sherifb  and  Constables. 

Bank  officers,  see  Banks  and  Banking,  SI  02, 
109,  113. 

Collectors  of  taxes,  see  Taxation. 

Corporate  officers,  see  Corporations,  {{  838-361, 
399. 

Health  officers,  see  Health. 

Municipal  officers,  see  Municipal  Orporations, 
Si  130-181,  747. 

School  officers,  see  Schools  and  School  Dis- 
tricts, J  02. 

Town  officers,  see  Towns,  {  26. 

I.  APPOIHTMENT,      QVAXAFIOATION, 
AMD  TEHUHE. 

(A)  oaees,  SMd  Poirer  to  Appoint  to  and 
Remove  from  Olllee. 

i  7.  Where  no  definite  term  of  office  is  fix- 
ed by  law,  the  power  to  remove  an  incumlient 
is  an  incident  to  the  power  to  appoint,  in  the 
absence  of  constitutional  or  statutory  provi- 
sion to  the  contrary. — State  v.  Dalil  (Wis.)  748. 

(C)  BllKlbllitr    mm*    <lnaIiaestloa. 

8  35.  Incoming  officers  should  have  a  rea- 
sonable time  at  the  tjeeinninK  of  the  businesa 
portion  of  the  first  official  day  to  qualify,  and 
under  Const,  art.  7,  S  9,  the  qualification  of 
the  new  officers  may  be  at  a  convenient  hour 
of  the  first  day.— State  v.  Mcintosh  (Minn.)  462. 


ror  caiM  In  Dm-.  Dig.  t  Amer.  Digs.  19U7  to  data  *  Indexes  see  sam*  toplo  *  section  (!)  NVMBBH 
122  N.W.— 77 


Digitized  by 


Google 


1218 


122  NORTHWGSTEBN  BEPORTEB. 


(F)  Ternt  of  OSee,  Vaesnetes,  smd  Hold- 

lav  Over. 

S  52.  Notwithstanding  the  new  membera  of 
a  board  of  coanty  commissioners  did  not  quali- 
fy until  after  1:30  o'clock  p.  m.  on  the  first  day 
of  the  new  official  year,  held,  that  the  old  board 
was  not  yested  with  authority  in  the  meantime 
during  that  day  to  appoint  a  sheriff.— State 
V.    Mcintosh    (Minn.)   462. 

{  53.  Business  naturally  belonging  to  the 
first  day  of  the  official  year  held  within  the  ju- 
risdiction of  the  incoming  officers,  though  there 
may  be  some  delay  in  their  qualification. — State 
V.   Mcintosh  (Minn.)   462. 

(  53.  Outgoing  officers  held  not  to  pass  out 
of  office  untu  the  close  of  the  first  day  of  the 
new  official  year,  unless  their  successors  qualify 
daring  that  day,  but  to  be  limited  in  jurisdic- 
tion to  the  closing  up  of  old  business. — State 
V.  Mcintosh  (Minn.)  4S2. 

t  53.  By  Const,  art.  7,  $  9,  the  official  year 
commences  on  the  first  Monday  of  January, 
at  which  time  all  terms  of  office  terminate. — 
State  T.  Mcintosh  (Minn.)  462. 

(G)  RoalvMtton,  Snapeaaton,  or  RemoTSl. 

S  72.  Removal  by  State  Treasurer  of  em- 
ploye under  Laws  1905,  p.  582,  c.  363,  i  22, 
Aeid  not  reviewable  by  the  court  wbere  he  act- 
ed within  his  jurisdiction.— State  ▼.  Dahl 
(Wis.)  748. 

i  72.  The  power  of  amotion  from  office  is 
not  a  judicial,  but  an  administrative,  power, 
though  it  be  exercised  in  a  judicial  manner. — 
State  V.  Dahl  (Wis.)  74& 

H.  TTTLE  TO  Am  POSSEBSIOH  OF 
OFFICE. 

Propriety  of  mandamus  as  remedy  to  deter^ 
mine  title  to  office,  see  Mandamus,  f  3. 

Quo  warranto  to  determine  title,  see  Quo  War- 
ranto, {  11. 

{  77.  An  office  is  not  a  property  right  nor  is 
the  right  to  hold  It  a  vested  one.— State  v. 
Dahl  (Wia.)  748. 

HI.  BIGHTS,  PO.w:ERB,  DITTIES,  AND 
LIABILITIES. 

Misappropriation  of  funds  by  officer  of  trust 
company,  see  Banks  and  Banking,  }  814. 

I  103.  No  legal  wrong  results  when  one  re- 
ceives all  that  the  law  accords  him,  and  hence, 
when  the  only  right  of  an  individual  or  the 
public  which  the  law  gives  is  that  which  a  des- 
ignated officer  deems  best,  the  honest  decision 
of  that  officer  is  the  measure  of  the  right. — 
State  V.  Rose  (Wis.)  751. 

i  103.  EJxecutive  power  as  conferred  upou 
officers  by  coustitutions  and  city  charters  in- 
cludes the  power  to  appoint  and  remove  sub- 
ordinate executive  officers  at  discretion,  except 
as  qualified  by  other  expressions. — State  v. 
Rose  (Wis.)  751. 

OPENING. 

Account  of  personal  representative,  see  Execu- 
tors and  Administrators,  §  509. 
Judgment,  see  Judgment,  {  162. 

OPINION  EVIDENCE. 

In  civil  actions,  see  Evidence,  {}  471-571. 
In  criminal  prosecutions,  see  Criminal  Law,  <( 
449-479. 

OPINIONS. 

Of  courts,  see  Courts,  U  89-116. 

Of  courts  or  judges,  admissibility  in  evidence 

in  action  for  libel,  see  Libel  and  Slander,  I 

123. 


OPTIONS. 

To  rescind  contract,  see  Contracts,  {  250. 

ORDER  OF  PROOF. 

At  trial,  see  Trial,  {{  62-67. 

ORDERS. 

Review  of  api>ealable  orders,  see  Appeal   and 
Error. 

ORDINANCES. 


Municipal  ordinan< 
tions,  i{  120,  "" 


see  Municipal  Corpora- 
\  003-631. 


OTHER  REMEDY. 

Ab  precluding  remedy  by  appeal,  see  Appeal 
and  Xlrror,  (  9. 

PARDON. 

I  2.  Indeterminate  Sentence  Act  (Code  Supp. 
lOOT,  §{  5718-al8  to  o718-a21)  held  not  to  vio- 
late the  constitutional  provision  granting  to  the 
Governor  power  to  reprieve,  pardon,  or  com- 
mute the  sentence  of  prisoners  in  the  peniten- 
tiary.—State  V.  Duff  (Iowa)  829. 

I  2.  That  the  board  of  parol  may  lessen  the 
terms  for  which  a  prisoner  is  sentenced  held  not 
to  affect  the  constitutionality  of  the  indetermi- 
nate sentence  statute.  Code  Supp.  1907,  K 
5718-al8  to  5718-a21.— State  v.  DuflE  (Iowa) 
829. 

PARENT  AND  CHILD. 

See  Guardian  and  Ward;   Infants. 

Custody  of  children  on  divorce,  see  Divorce,  H 

303,  309. 
Contributory  negligence  of  parent  as  a  defense 

in   action   for   wrongful   death   of   child,   see 

Death,  f  24. 
Measure  of  damages  for  wrongful  death  of  child, 

see  Death,  g  95. 

PAROL  EVIDENCE. 

In  civil  actions,  see  Evidence,  {{  397-466. 

PARTIAL  INVALIDITY. 

Of  judgment,  see  Judgment,  $  803. 

PARTIES. 

Death    ground    for   abatement,    see   Abatement 

and  Revival,  §  68. 
Defects  ground  for  abatement,  see  Abatement 

and  Revival,  $  27. 
Parol  evidence  to  identify  parties,  see  E2ridaice, 

{459. 

/»  twtion$  iy  or  againit  particular  elat*€$  of 

person*. 
See  Insane  Persons,  {  92. 

In  particular  action*  or  procMding*. 
See  Ejectment,  §{  47,  50;    Mandamus,  J  147; 

Replevin,  §  21. 
For  alienation  of  wife's  afTections,  see  Husband 

and  Wife,  §  330. 
On  appeal  bond,  see  Appeal  and  Error,  (  1244. 
Suit  for  injunction,  see  Injunction,  {  114. 
Suits  to  set  aside  frandulent  conveyances,  see 

Fraudulent  Conveyances,  |  256. 

Judgment  and  relief  a»  to  partiet,  and  parties 
affected  by  judgment*  or  proceeding*  thireon. 

Judgment  against  one  or  more  coparties,  see 
Judgment,  f  238. 

Persons  concluded  by  judgment,  see  Judgment, 
Si  682.  707. 


Topics,  divisions,  *  SMtlon  (i)  NUMBERS  in  this  Index,  *  Dec.  *  Am«r.  Digs.  *  Reporter  Indezei  agra* 

Digitized  by  LjOOQ  l€ 


INDEX-DIGEST. 


1219 


Review  a*  to  pmrtie*  and  ]>ortie*  to  proceedingi 

tn  appellate  court*. 
Parties  entitled  to  notice  of  appeal,  see  Appeal 

and  Error,  i  415. 
Parties  on  appeal  or  writ  of  error,  see  Appeal 

and  Error,  i  15a 

To  eonveiianeet,  contract*,  or  other  tratuactiom. 
See  Bonds,  i  62;    Contracts,  {$  22,  26;  Re- 
lease, {  2a 
Joint  interests,  see  Joint  Adventures. 

Z.  nJUJXTtFTB. 

(A)  Persona   'Wlio  mmy  or  mnat   Sne. 

§  6.  A  certain  party  held  a  necessary  party 
to  an  action  to  cancel  conveyances  induced  by 
fraud,  under  Code  1897,  i  3459.— Stewart  t. 
Hall  (Iowa)  009. 

n.  DEFEXSAirrs. 

(B)  Joinder. 

8  85.  Where  a  cost  and  supersedeas  bond 
were  in  one  instrument,  and  on  affirmance  after 
assignment  of  tlie  judgment  the  judgment  de- 
fendant recovered  judgment  for  costs,  and  was 
anwilling  to  join  in  an  action  on  the  bond,  he 
could  be  made  a  defendant  under  Code  Civ.  Proc. 
8  90.— Jerome  t.  Rust  (S.  D.)  844. 

HZ.  HEW  PARTIES  AMD  OHAMOE  OF 
PARTIES. 

8  40.  Assignee  of  tax  title  held  properly  per- 
mitted to  intervene  and  defend  a  suit  to  quiet 
title.— Dolan  v.  Maxwell  (Iowa)  928. 

8  42.  Rev.  Codes  1905,  8  6825,  held  to  au- 
thorize interpleader  in  a  pending  action  only 
before  the  trial  of  parties  whose  rights  are  un- 
determined.—St.  Paul,  M.  &  M.  R.  Ca  y.  Blake- 
more  (N.  D.)  833. 

8  52.  Rev.  Codes  1905,  8  6824,  does  not  au- 
tlrorize  the  bringing  in,  by  order  of  court,  of 
additional  parties  after  the  judgment. — St.  Paul, 
M.  &  M.  B.  Co.  y.  Blakemore  (N.  D.)  333. 

V.  DEFECTS.   OBJEOTIOirS,  ANIt 
AMEIfDBCBlTT. 

8  95.  An  objection  that  mandamus  against 
a  county  treasurer  should  have  been  brought 
in  the  name  ot  the  county,  instead  of  the  super- 
Tisors,  could  be  cured  by  amendment. — Board  of 
Sup'rs  ot  Gratiot  County  v.  Munson  (Mich.) 
llf. 

PARTITION. 

H.  ACTIONS  FOR  PARTITIOIT. 
(B)  Prooeedlnva  And  Relief. 

Finalitj  for  pnrp9se  of  review,  of  judgment 
awarding  partition  and  apportionment  of 
shares,  see  Appeal  and  Error,  8  69. 

Premature  appeal,  see  Appeal  and  Error,  8  337. 

8  113.  In  partition,  a  decree  held  res  judicata 
as  to  the  riuts  of  plaintiffs  to  (»mpel  contri- 
bution of  defendant  for  repairs  made  by  plain- 
tiffs to  the  common  proper^.— Cooper  y.  Brown 
(Iowa)  144. 

PARTNERSHIP. 

See  Joint  Adventures;   Joint-Stock  Companies. 

I.  THE  REI.ATIOIf. 

(B)  A>  to  Tblrd  Persons. 

8  42.  Promoters  of  a  partnership  associa- 
tion, limited,  who  executed  articles  of  associa- 
tion which  were  not  recorded  as  required  by 
law,  are  liable  as  partners  for  fraud  in  the 
furtherance  of  the  scheme,  and  each  is  responsi- 
ble therefor.— Nichols  v.  Buell  (Mich.)  217. 


IV.  BIGHTS  AND  I.TABIIJtTIES  AS 
TO   THIRD  PERSONS. 

Execution  against  firm  property  for  debts  of  in- 
dividual  partner,  allowance  of  expenses  of 
keeping  property,  see  Execution,  8  136. 

VII.  DISSOXtVntfN.  SETTI.EBXENT, 
AND  AOOOVNTINO. 

(D)  Aetlons  for  Dissolution  and  Acoonnt- 
Ing;. 

8  324.  A  temporary  injunction,  in  a  suit  for 
a  firm  accounting,  held  properly  dissolved  under 
the  facts.- McQuater  y.   Mandell   (Mich.)   36a. 

Vm.  UMITED  PARTNERSHIP. 

See  Joint-Stock  Onapanies,  8  14. 

PASSENGERS. 

See  Carriers,  88  280-820. 

PATENTS. 

Abandonment  of  contract  to  furnish  money  for 
making  models  and  securing  patent,  see  Con- 
tracts, 8  860. 

For  public  lands,  see  Public  Lands,  88  U3,  116. 

X.  TITLE,  CONVEYANCES,  AND  CON-. 
TRACTS. 

(O)  Ueenses  and  CSontraeta. 

Right  to  require  agent  of  licensee  to  divulgv 

transactions  with   licensor,   see  Witnesses,   8 

190. 
Validity  of  contract  with  agent  of  licensee  to 

procure    evidence    of    his    breach    ot   license 

agreement,  see  Contracts,  8  113. 

PAYMENT. 

See  Compromise  and  Settlement;   Tender. 
By  receiver,  see  Receivers,  8  165. 
Subrogation  on  payment,  see  Subrogation. 

Of  particular  clatses  of  obligatione  or  {iabiltttes. 
See  Mortgages,  §8  298.  301. 
Taxes,  see  Taxation,  8  542. 

I.  REQUISITES  AND  SUFFICIENCY. 

8  9.  A  payment  means  a  payment  in  cash, 
and,  if  paid  by  anything  else  tnan  cash,  it  must 
be  accepted  by  the  payee  as  payment— Sjoli  v. 
Hogenson  (N.  D.)  1008. 

IV.   PLEADING,  EVIDENCE,  TRIAXi, 
AND   REVIEW. 

8  73.  A  note  given  by  an  administrator  to 
the  husband  of  the  distributee  for  her  share  in 
the  estate,  held  not  accepted  by  the  payee  as 
payment.— Sjoli  v.  Hogenson  (N.  D.)  1008. 

8  74.  A  receipt  obtained  from  a  distributee 
through  fraud  is  invalid,  and  open  to  impeach- 
ment.—Sjoli  V.  Hogenson  (N.  D.)  1008. 

PENAL  STATUTES. 

Construction,  see  Statutes.  8  241. 

PENALTIES. 

Violation  of  regulations  by  carriers,  see  Gsf 
rieiB,  8  20. 

PERJURY. 

Equitable  relief  against  judgment  secured  bj 
perjured  testimony,  see  Judgment,  i  444. 


For  cases  In  Dec.  Dig.  *  Amer.  Digs.  1907  to  data  *  Indexss  sea 


same  topic  *  sacUon  U)  NUMBBB 

Digitized  by  LjOOQ  IC 


1220 


122  NORTHWESTEBR  BBPOBTER. 


PERSONAL  INJURIES. 

Liability  of  decedent's  estate  for  injuries  from 
defects  in  building  owned  by  decedent  and  re- 
sulting  after   his   death,   see    Executors   and 

,  Administrators,  |  119. 

Particular  catuet  or  meant  of  iniury. 

See  Assault  and  Battery,  |  42;    Negligence. 

Negligence  of  executor  in  failing  to  keep  prem- 
iss in  repair,  see  Executors  and  Administra- 
tors, i  119.  „  ^, 

Operation  of  railroads,  see  Railroads,  {{  275- 
^,  327,  338,  383. 

Particular  cIsMe*  of  per$on»  injured. 

Employ^,  see  Master  and  Servant,  ||  88-90. 

Passenger,  see  Carriers,  Sf  280-320. 

Traveler  on  highway,  see  Highways  M  192- 
214;    Municipal  Corporations,   Si  762-821. 

Traveler  on  hiKhway  crossing  railroad,  see  Rail- 
roads, H  327,  338. 


See  Damages. 


£em  edict. 


PETITION. 


For  establishment  of  drain,  see  Drains,  g  28. 
For  mandamus,  see  Mandamus,  {  154. 
For  removal  of  cause,  see  Bemoval  of  Causes, 
S{  86,  97. 

PHOTOGRAPHS. 

As  evidence,  see  Evidence,  g  359. 

PHYSICIANS  AND  SURGEONS. 

Acts  constitntlng  breadi  of  contract  for  sale 

of  medical  practice,  see  Contracts,  I  312. 

Admissibility  of  evidence  in  action  for  breach 

of  contract  for  sale  of  medical  practice,  see 

Contracts,  f  349.  „  ,    ,     ,  t         u  atr 

As  expert  witnesses,  see  Criminal  Liaw,  SS  470, 

479 ;    Evidence,  g{  537,.  663. 
Applicability  of  instructions  to  case  in  actions 

for  malpractice,  see  Trial,  {  252. 
Hj-pothetical  questions  in  action  for  malprac- 
tice, see  Evidence.  §  553.  ...... 

Instructions   in  action  for  breach  of  contract 
for  sale  of  medical  practice,  see  Contracts, 
i  353. 
Statements  to  physician  as  res  gest»,  see  Evi- 
dence, f  128. 

I  4.  Pub.  Acts  1907,  p.  316,  No.  244,  t  5, 
prescribing  qualifications  for  registration  of  vet- 
erinary surgeons,  construed.— Polsom  v.  State 
Veterinary  Board  (Mich.)  529. 

I  16.  A  physician  and  surgeon  who  docs 
not  possess  the  requisite  qualifications  is  not 
exempted  from  liability  for  malpractice  be- 
cause his  mistake  was  caused  by  an  error  of 
judgment.— Farrell   v.   Haze   (Mich.)   197. 

i  16.  In  an  action  against  physicians  for 
malpractice,  evidence  held  not  to  show  a  joint 
undertaking  so  as  to  render  want  of  skill  or 
care  on  the  part  of  one  of  defendants  imputable 
to  his  codefendant.— Brown  v.  Bennett  (Mich.) 
305. 

t  18.  In  an  action  for  malpractice  it  is 
not  enough  to  show  a  state  of  facts  equally  con- 
sistent with  unskillfuluess  and  negliRence  of 
the  physician,  and  *ith  skillfulness  and  due 
care.— Farrell  v.   Haze  (Mich.)   19*. 

{  18.  In  an  action  for  malpractice,  based  on 
the  improper  treatment  of  a  Potts  fracture, 
necessitating  the  amputation  of  plaintiffs  leg, 
the  bones  of  the  amputated  leg  held  not  admis- 
sible as  an  exhibit.— Farrell  v.  Haze  (Mich.) 
197. 

f  18.  Certain  evidence  held  not  admissible 
to  prove  want  of  requisite  qualifieationji  of  a 
physician. — Farrell    v.    Haze    (Mich.)    197. 


PICTURE  SHOWS. 

Restraining  exhibition  by  injunction,  see  In- 
junction, I  114. 

PLACE. 

Of  taxation,  see  Taxation,  |  276L 

PLEADING. 

Applicability  of  instructions  to  pleadings,  see 
Trial,  {!  250-252. 

Conformity  of  judgment  to  pleadings,  see  Judg- 
ment, {  253. 

A  negation*  a»  to  particular  facta,  act*,  or  trans- 
action*. 
Discharge  of  bankrupt,  see  Bankruptcy,  S  ^Sjl 

In  action*  by  or  again*t  particular  claaae*  of 
per*on*. 

See  Brokers,  S  82;  Corporations,  t  513:  Ex- 
ecutors and  Administrators,  g  444;  Insane 
Persons,  g  97 ;    Master  and  Servant,  g  264. 

Bank  depositors,  see  Banks  and  Banking,  i 
154. 

In  particular  action*  or  proceeding*. 
See  Creditors'  Suit,  g  39 ;    Fraud,  g  43 :    label 
and  Slander,  g(  98,  100;   MaUdous  Proeecn- 
'  Ma    '  *  ~   ■  ■■ 


tion,    f    55; 
Title,  g  35. 


fandamus,    i    154;     Qaietlng 


For  breach  of  contract,  see  Contracts,  {{  340, 
346. 

For  commissions  of  broker,  see  Brokers,  |  82. 

For  injuries  from  defects  or  obstructions  in 
highway,  see  Highways,  g  208. 

For  injuries  from  defects  or  obstmctions  in 
street,  see  Municipal  Corporations,  J  816. 

For  injuries  to  person  on  bridge,  see  Bridges,  | 
40. 

For  injuries  to  servant,  see  Master  and  Servant, 
g  264. 

For  price  of  goods,  see  Sales,  f  355. 

Indictment  or  criminal  information  or  com- 
plaint, see  Indicttaient  and  Information. 

In  lower  court  after  remand  by  appellate  court, 
see  Appeal  and  Error,  g  1201. 

On  bond  of  depositary,  see  Depositaries,  g  14. 

To  confirm  or  try  tax  title,  see  Taxation,  g  SOU. 

To  enforce  mechanic's  lien,  see  Mechanics'  Liens, 
g  277. 

To  recover  bank  deposit,  see  Banks  and  Bank- 
ing, g  1-54. 

Review  of  decition*  and  pleading  in  appeUat* 
court*. 

Exceptions  for  purpose  of  review,  see  Api>eal 
ano  Error,  g  2.'>6. 

Harmless  error  in  rulings,  see  Appeal  and  Er- 
ror, gg  1039,  1042. 

I.  FORM  AMP  AIXEOATIOW8  IH 
OENEBAL. 

g  8.  An  averment,  in  a  petition  for  removal 
of  a  cause  to  the  federal  court,  that  the  con- 
troversy is  between  citizens  of  different  states 
held  to  he  only  a  conclusion. — O'Connor  v.  Chi- 
cago, R.  I.  &  P.  By.  Co.  (Iowa)  947. 

U.  DEGI.ARATION,   OOHPliAnfT,  FE> 
TITIOM,  OR  STATEBCEirr. 

In  particular  action*  or  proceeding*. 
See  Creditors'  Suit,  g  39. 
Against  corporation,  see  Corporations,  g  513. 
On  bond  of  depositary,  see  Depositaries,  g  14. 

IV.  REPLIOATIOH  OR  REPLT  AMD 
SURSEQUEirr  FLEADIX08. 

g.  177.  Pleadings,  in  an  action  for  commis- 
sions for  selling  machinery,  considered,  and  held 
that  the  reply  was  an  admission  that  defend- 
ant's liability  was  on  the  contract,  and  not  for 


Topics,  divisions,  *  sectton  (I)  NUMBERS  In  this  Index,  A  Dec.  *  Amer.  DJ«».  *  Reports  Indexes  sctm 

Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1221 


a  breach  of  it— DuTal  t.  Advance  Thresher  Co. 
(Neb.)  880. 

I  180.  A  reply  in  action  on  a  note  held  a 
departure  from  the  complaint.— Strauch  v.  Flynn 
(Minn.)  320. 

V.  DiaimtBER  OB  EXOEPTIOX. 

I  188.  A  "demurrer"  is  but  a  legal  exception 
to  the  sufficiency  of  the  pleading.— Wapello 
State  Sav.  Bank  v.  Colton  (Iowa)  148. 

i  188.  A  complaint  based  on  a  wrongful  or- 
der of  the  railroad  commission  held  not  de- 
murrable on  the  ground  that  the  order  com- 
plained of  was  based  on  a  prior  order  in  favor 
of  which  the  limitation  of  time  to  question  its 
▼alidity  under  St.  1888,  «  1797m65,  as  added 
by  Laws  1907,  p.  467,  c  499,  expired  before  the 
commencement  of  the  action. — City  of  Superior 
T.  Douglas  County  Telephone  Co.  (Wis.)  1023. 

S  214.  The  effect  of  either  motion  to  strike 
or  demurrer  is  to  admit  the  truth  of  the  facts 
alleged  in  the  pleading  assailed,  but  to  deny 
their  efficacy  as  justifying  the  relief  prayed. — 
Wapello  State  Sav.  Bank  v.  Colton  (Iowa)  149. 

S  214.  Where  a  litigant  stands  on  a  general 
demurrer  to  a  pleading,  be  admits  all  the  ma- 
terial facts  well  pleaded.— Spalding  v.  Douglas 
County  (Neb.)  889. 

i  218.  Where,  in  an  action  on  a  cashier's 
bond,  the  petition  was  held  insufficient  as  to 
certain  items,  and  plaintiff  failed  to  plead 
over,  judgment  of  dismissal  might  have  been 
entered  as  to  counts  based  on  such  items. — 
Wapello  State  Sav.  Bank  v.  Colton  (Iowa)  148. 

VI.  AMENDED  AMD   STTPPXiEMEKTAI. 
PLEADIITOS   AND   BEPI.TJADBB. 

In  lower  court  after  remand  by  appellate  court, 
see  Appeal  and  Error,  {  1201. 

S  248.  In  an  action  against  a  city,  an  amend- 
ment to  a  declaration  so  as  to  make  the  same 
conform  substantially  to  a  notice  of  injuries 
received,  given  under  the  provisions  of  Detroit 
Charter  1904,  {  279,  held  not  to  introduce  a 
new  cause  of  action.— Lyle  v.  City  of  Detroit 
(Mich.)  108. 

(  248.  Where  an  action  for  injuries  was  re- 
vived in  tlie  name  of  plaintiff's  administrator 
after  his  death,  the  declaration  could  not  be 
amended  so  as  to  authorize  recovery  of  dam- 
ages for  wrongful  death,  under  Pub.  Acts  1005, 
p.  120,  No.  89.— Fournier  v.  Detroit  United  Ry. 
(Mich.)  289. 

S  248.  Under  Comp.  Laws  1897,  i  10,268, 
an  amendment  to  the  complaint  in  an  action 
for  injuries  to  a  servant  held  proper.— Gamsey 
▼.  Boyce  (Mich.)  371. 

S  248.  An  amending  count  in  a  personal  in- 
jury action  held  not  to  charge  a  new  cause  of 
action.— Knudsen  v.  City  of  Muskegon  (Mich.) 
519. 

^  278.  Under  Code,  i  3641,  facts  not  ma- 
terial to  any  issue  affecting  the  remedy  held 
not  appropriate  to  a  supplemental  pleading.— 
Wapello  State  Sav.  Bank  v.  Colton  (Iowa)  149. 

VH.  BIONATITBE  AND  VERIFICATION. 

{  291.  The  answer  in  an  action  on  an  insur- 
ance policjir  by  failure  to  deny  held  to  admit 
its  execution  in  manner  and  form  alleged. — 
Miller  v.  Prussian  Nat.  Ins.  Co.  (Mich.)  1093. 

XI.  MOTIONS. 

Review  of  rulings  as  dependent  on  prejudicial 
nature  of  error,  see  Appeal  and  Error,  §  1039. 

i  352.  The  effect  of  either  motion  to  strike 
or  demurrer  is  to  admit  the  truth  of  the  facts 
aljeged  in  the  pleadiug  assailed,  but  to  deny 
their  efficacy  as  justifying  the  relief  prayed.— 


Wapello    State    Sav.    Bank   t.    Colton    (Iowa) 
149. 

f  360.  Where  a  supplemental  petition  was 
stricken  from  the  files,  the  former  nleading 
was  restored,  and  continued  effective. — ^Wapello 
State  Sav.  Bank  v.  Colton  (Iowa)  1491 

{  360.  An  order  striking  an  amended  and 
supplemental  pleading  from  the  files  is  self- 
executing.— Wapello  State  Sav.  Bank  v.  Colton 
(Iowa)  140. 

§  366.  Where  certain  items  were  striken 
from  the  petition,  they  were  as  completely  out 
of  the  case  as  tbongh  a  formal  judgment  of 
dismissal  had  been  entered.— WanieUo  State 
Sav.  Bank  v.  Colton  (Iowa)  148. 

{  369.  Allegations  of  negligence  charged  in 
an  original  and  amending  count  in  an  action 
against  a  city,  held  not  inconsistent. — Knudsen 
V.  City  of  Muskegon  (Mich.)  519. 

I  368.  Where  all  three  counts  of  the  decla- 
ration were  based  on  plaintiff's  rescission  of 
the  contract,  that  the  ground  of  rescission  in 
the  first  count  was  defendant's  breach  of  con- 
tract to  instruct  plaintiff,  while  that  alleged 
in  the  other  counta  was  his  false  representa- 
tions as  stated,  held  not  to  require  plaintiff  to 
elect  on  which  theory  he  should  proceed. — 
Ward  V.  Cook  (Mich.)  785. 

xn.   ISSUES,  FBOOF,  AND  VARIANCE. 

In  particular  action$  or  proceeding!. 

See  Libel  and  Slander,  }  100;  Malicious  Prose- 
cution, i  55. 

For  breach  of  contract,  see  Contracts,  |  346. 

For  injuries  from  defects  or  obstructions  in 
street,  see  Municipal   Corporations,   (   816. 

For  injuries  to  servant,  see  Master  and  Servant, 
S    264. 

For  price  of  goods,   see   Sales,   |  355. 

To  enforce  mechanic's  lien,  see  Mechanics'  Liens, 
I  277. 

To  recover  bank  deposit,  see  Banlcs  and  Bank- 
ing, {  154. 

i  387.  There  can  be  no  recovery  if  there 
is  a  material  variance  between  the  allegations 
and  proof.— Cockins  v.  Bank  of  Alma  (Neb.)  10. 

Xm.  DEFECTS   AND   OBJECTIONS, 
WAIVEB,  AND  AIDEB  BT  VER- 
DICT OB  JUDGMENT. 

8  406.  A  complaint  for  injury  to  an  engineer 
held  valid  as  against  objections  made  after  the 
case  had  been  called  for  trial  and  evidence  in- 
troduced.— Koreis  v.  Minneapolis  &  St.  L.  R. 
Co.  (Minn.)  608. 

I  408.  Where  there  is  an  appearance  by  de- 
fendant, objections  to  the  complaint  must  t>e 
raised  liefore  trial,  or  they  will  be  deemed 
waived,  unless  the  complaint  states  no  cause 
of  action,  in  which  case  failure  to  object  is  no 
waiver. — In  re  Bast  (Iowa)  153. 

$  411.  Under  St.  1888,  f§  2658,  2600,  the 
objection  that  a  counterclaim  pleaded  cannot 
be  pleaded  in  the  action  not  raised  by  demurrer 
or  reply  held  waived. — Stark  v.  Duhring  (Wis.) 
1131. 

I  427.  In  an  action  for  injuries  from  a  de- 
fective highwajr,  evidence  held  admissible  un- 
der the  complaint,  notice  of  injury,  and  claim 
for  damages,  construed  together,  of  injuries  to 
plaintiffs  side,  ribs,  and  back  and  of  a  wasting 
of  the  muscles  of  the  back  causing  spinal  cur- 
vature.—Dralle  V.  Town  of  Reedsburg  (Wis.) 

PLUMBERS. 

Liability  of  city  for  injuries  from  excavation 
made  by  licensed  plumbers  with  permission  of 
citv  authorities,  see  Municipal  Corporations, 
i  t62. 


S'or  cases  is  Dec.  Dig.  A  Amer.  Digs.  It07  to  date  *  Indexes  ■••  same  topic  ft  section  (i)  NUMBER 

Digitized  by  LjOOQ  l€ 


1222 


122  NORTHWESTERN  REPORTER. 


POLICE. 

See  Municipal  Corporatioas,  {  181. 

POLICE  COMMISSIONER. 

IfandamuB  to,  see  Mandamus,  §  66. 

POLICE  POWER. 

Of   municipality,    see   Municipal   CorporationB, 

POLICY. 

Of    insuiance,    see   Insurance. 

POLITICAL  RIGHTS. 

See  Constitutional  Law,  fi  90,  91. 
Suffrage,  see  Elections. 

POSSESSION. 

See  Adverse  Possession. 
Of  office,  see  Officers,  |  77. 
Retention    by    grantor    in    fraudulent   convey- 
ance, see  Fraudulent  Conveyances,  f  147. 

POWERS. 

Creation  by  will,  see  Wills,  §|  684-694. 
Of  attorney,  see  Principal  and  Agent 
Of  sale  in  mortgage,  see  Mortgages,  §  338. 

n.  CONSTBUCTIOir  AMD  ExucxmoiT. 

Authority  of  administrator  de  bonis  non  to 
execute  power  conferred  on  executor,  see  Ex- 
ecutors and  Administrators,  {  120. 

Authority  of  administrator  with  will  annexed 
to  execute  power  conferred  on  executors,  see 
Executors  and  Administrators,  {  121. 

t  36.  The  discretion  ^ven  a  donee  in  mak- 
ing an  appointment  hela  not  to  be  controlled 
by  the  courts.— Loosing  v.  Loosing  (Neb.)  707. 

{  39.  Discretion  vested  in  the  donee  of  a 
power  cannot  be  exercised  by  tbe  court  should 
he  die  without  exercising  it,  but  the  property 
will  be  divided  equally  among  the  beneficiaries 
of  the  power.— Loosing  t.  Loosing  (Neb.)  707. 

PRACTICE. 

Prosecution  of  actions  in  general,  see  Action, 
i  66. 

In  particular  otvil  actiona  or  prooeedingi. 

See  Account,  S  12 ;  Divorce,  ;§  124,  133 ;  Eject- 
ment; Habeas  Corpus;  Mandamus,  H  147- 
168 ;  Quo  Warranto ;   Replevin. 

Accounting  by  executor  or  administrator,  see 
Executors  and  Administrators,  §  509. 

Condemnation,  proceedings,  see  Eminent  Do- 
main,  §§   168-264. 

Particular  proceedings  in  action*. 

See  Abatement  and  Revival ;  Continuance ; 
Costs ;  Damages,  |  185 ;  Dismissal  and  Non- 
suit ;  Evidence ;  Execution ;  Judgment ; 
Jury :  Limitation  of  Actions ;  Parties ;  Plead- 
ing ;  Process ;  Reference ;   Removal  of  Causes ; 

•  Trial. 

Revival  of  judgment,  see  Judgment,  {  866. 

Verdict,  see  Trial,  §{  329-362. 

Piuiicular  remedies  in  or  incident  -to  actions. 
See    Attachment;     Discovery;      Garnishment; 

Injunction ;  Receivers ;  Tender. 
Search  warrant,  see  Searches  and  Seizures. 

Procedure  in  criminal  prosecutions. 
See  Criminal  Law. 

For  offenses  against  liquor  laws,  see  Intoxica- 
ting Liquors,  |§  226-236. 


Procedure  in  eaerdse  of  special  or  limited  furU- 

dietion. 
In  equity,  see  Equity. 
In  justices'  courts,  see  Justices  of  the  Peace,  f 

Procedure  in  or  by  particular  courts  or  trihunaU. 
See  Courts. 

Procedure  on  revieto. 
See  Appeal  and  Elrror;    CJertiorari,  {(  51-71: 
Exceptions,  Bill  of;   Justices  of  the  Peace,  {f 
140-206;    New  TriaL 

PRECEPT. 

Necessity  of  in  proceedings  to  punish  for  ooa- 
tempt  by  violation  of  injunction  against  sale 
of  hquors,  see  Intoxicating  Liquors,  |  279. 

PREJUDICE. 

Ground  for  reversal  in  civil  actions,  see  Appeal 
and  Error,  |S  1027-1068. 

PRELIMINARY  INJUNCTION. 

See  Injunction,  J|  135,  148. 

PREMIUMS. 

For  insurance,  see  Insurance,  i|  184,  360-365. 

PREPONDERANCE. 

Of  evidence,  see  Evidence,  {  598. 

PRESENTMENT. 

By  grand  jury,  see  Indictment  and  Information. 
Of  bill  or  note,  see  Bills  and  Notes,  |  404. 

PRESUMPTIONS. 

As  to  jurisdiction,   see  Courts,   §  35. 
In  civil  actions,  see  Evidence,  Si  62-83. 
On  appeal  or  error,  see  Appeal  and  Error,  H 
907-934,  1144. 

PRINCIPAL  AND  AGENT. 

Admissions  bv  agent,  see  Evidence,  {|  241,  242. 
Privileged    character    of    conminnications    be- 
tween, see  Witnesses,  {  196. 

Agency  in  particular  relations,  ofieet,  or  oo- 
oupations. 

See  Attorney  and  Client;  Auctions  and  Auc- 
tioneers, {  6;  Brokers;  Husband  and  Wife, 
i  25. 

Corporate  agents,  see  Corporations,  ||  338-861, 
390. 

Insurance  agents,   see  Insurance,  {f   85,  95. 

Municipal  agents,  see  Municipal  Corporations, 
i  747. 

I.  THE  KELATlOft. 

(A)  Creation  snd  Bzlatenee. 

f  19.  Proof  that  one  C.  was  in  charge  of 
defendant  telegraph  company's  office  at  a  cer- 
tain place  held-  sufflcient  prima  facie  proof  of 
C.'s  agency. — Markley  v.  Western  Union  Tel- 
egraph Co.  (Iowa)  136. 

§  22.  In  an  action  against  a  telegraph  com- 
pany for  damages  through  failure  to  promj^tl; 
deliver  a  message,  testimony  held  admissiUe 
to  show  that  one  C.  was  defendant's  autito^ 
ized  agent. — Markley  v.  Western  Union  Tele- 
graph Co.  (Iowa)  136. 

(B)  TermlBstlon. 

Validity  of  contract  by  agent  with  third  per- 
son having  as  its  object  the  termination  of 
existing    agency,    see    Contracts,    §    113. 


Topics,  divisions,  *  section  C9)  NUMBERS  In  this  Index,  *  Dec.  t  Amer.  Digs,  ft  Reporter' Indexai  agree 

Digitized  by  VjOOQ  l€ 


INDBX-DIOBST. 


1223 


XZ.  XUTVAI.  BMHtra.  PPTIBg,  Aim 
LIABXX.ntES. 

Fidaciary  relations  as  affecting  yaliditj  of  con- 
tiact  by  agent  with  third  person,  see  Con- 
tracts, I  113. 

Validity  of  contract  by  agent  with  third  per- 
son having  as  its  object  the  termination  of 
existing  agency,   see   Contracts,   i   113. 

(A)   Bxeontlon  of  AgtmcT- 

I  69.  Assignment  of  a  note  and  mortgage  by 
plaintiff  to  her  agent  held  procured  by  misrep- 
resentation, and  was  therefore  properly  set 
aside.— Watson  v.  Clark  (Iowa)  913. 

I  69.  An  agent  charged  with  the  doty  of 
paying  taxes,  and  furnished  money  by  his  prin- 
cipal for  that  purimse,  cannot  acquire  a  valid 
tax  certificate  as  against  the  principal.— T.  D. 
Kellqra  Lumber  &  Mfg.  Co.  t.  Webster  Mfg. 
Co.  (Wis.)  737. 

S  79.  Where  an  agent  procured  his  principal 
to  assign  a  note  and  mortgage  to  him,  the  bur- 
den was  on  the  agent  to  establish  absolute  can- 
dor and  fair  deafing.— Watson  y.  Clark  (Iowa) 
913. 

(B)  Compenaatton   and  Lien   of  Asent. 

i  81.  Plaintifl  held  not  entitled  to  commis- 
sions on  a  sale  by  defendant's  agent  outside 
plaintiff's  territory  after  plaintiff's  contract  ex- 
pired.—Hilliker  T.  Noruiwest  Thresher  Co. 
(Iowa)  906. 

t  81.  Plaintiff  held  not  entitled  to  recover 
commissions  nnder  his  contract,  on  a  sale  made 
by  another  agent  at  a  price  less  than  net  list 
prices  specific.— Hilliker  v.  Northwest  Thresh- 
er Co.  (Iowa)  906. 

{  81.  Plaintiff  held  not  entitled  to  commis- 
sions under  a  contract  for  the  sale  of  machinery 
on  sales  made  for  less  than  defendant's  net  pri- 
ces, considering  the  proceeds  of  old  machinery 
taken  in  exchange. — Hilliker  v.  Northwest 
Thresher  Co.  (Iowa)  906. 

m.  RIGHTS  AlTD  UABIX.ITIi:S  AS  TO 
THIRD  PERSONS. 

'    (A)  Povrera  of  Avent. 

§  99.  The  "apparent  authority"  of  an  agent 
defined. — Farmers'  Co-op.  Shipping  Aas'n  v. 
George  A.  Adams  Orain  Co.  (Neb.)  56. 

§  103.  Grantors  held  bound  by  a  change 
made  in  a  deed  by  their  agent  befoire  he  de- 
livered it  to  the  grantee.-*Bretz  v.  R.  Connor 
Co.  (Wis.)  717. 

g  103.  Defendants  held  liable  for  goods  sold 
to  a  purchaser  of  their  saloon  business  by  one 
without  notice  of  an  agreement-  that,  though 
the  purchaser  was  to  continue  running  the 
business  in  defendants'  name  until  the  purchase 
price  was  paid,  he  should  not  commit  them  to 
liability  for  goods  bought  by  him. — Napa  Valley 
Wine  Co.  v.  Cassanova  (Wis.)  812. 

J  124.  In  an  action  for  damages  for  failure 
to  deliver  a  telegram,  whether  the  sendee  had 
authority  to  make  a  contract  proposed  held  for 
the  jury. — Stumm  v.  Western  Union  Telegraph 
Co.  (Wis.)  1032. 

(B)  UndlscIfNied  AsenoT* 

(  146.  A  party  to  a  contract  may  sue  the 
one  contracting  as  principal,  though,  in  fact,  he 
is  merely  an  agent. — Fitzpatrick  v.  Manheimer 
(Mich.)  83. 

(C)  Vnantliorlaed  aad  Wronvfnl  Acta. 

Liability  of  charitable  institution,  see  Charities, 
i  43. 

{  150.  A  change  in  a  written  contract  by  an 
agent  without  authority  to  make  it,  held  not 
to  avoid  the  contract,  unless  ratified  by  the 
principal. — Spreng   v.   Juni   (Minn.)   1015. 


§  ISO.  A  principal  Is  bound  by  the  acts  of 
his  agent  while  within  his  apparent  authority, 
though  without  his  actual  authority.— Fruit 
Dispatch  Co.  v.  Gilinsky  (Xeb.)  45. 

§  159.  An  agent  in  the  control  of  property 
is  responsible  for  his  own  tortious  acts.— Ban- 
nigan  v.  Woodbury  (Mich.)  531. 

PRINCIPAL  AND  SURETY. 

See  Bonds. 

Sureties  on  bonds  of  liquor  dealers,  see  Intoxi- 
cating Liquors,  i  88. 

Sureties  on  bonds  of  municipal  contractors, 
see  Municipal  Corporations,  {  347. 

Suretie*  on  bond*  for  performance  of  dutiet  of 
tnut  or  office. 
See  Elxecntors  and  Administrators,  |  535. 

Bwretiea  on  bond*  in  judicial  proceedings. 
See  Apneal  and  Error,  K  1227,  1244;   Attach- 
ment, I  351. 

VL  HATURE  AND  EXTENT  OF  UA- 
BIUTT   OF   S1TRETT. 

Liability  as  in  contract  or  tort  on  violation  of 
contract  after  assuming  performance  on  de- 
fault of  principal,  see  Action,  {  27. 

I  58.  Contracts  of  suretyship  are  to  be  strict- 
ly construed,  and  any  material  variation  is 
fatal  to  an  enforcement— Rodgers  Shoe  Com- 
pany T.  Coon  (Mich.)  133. 

HI.  DI80KAROE  OF  SURETT. 

I  94.  Acts  of  plaintiff  held  not  to  vary  terma 
of  a  contract  of  suretyship.— Rodgers  Shoe  (Com- 
pany V.  (Toon  (Mich.)  133. 

IV.   REBIEDIE8  OF  CREDITORS. 

{  161.  In  an  action  on  a  note  by  a  bank 
against  thp  sureties,  evidence  held  not'  to  show 
Uiat  the  sureties  were  Induced  to  become  sure- 
ties by  the  fraudulent  representations  of  the 
cashier  as  to  the  financial  standing  of  the  mak- 
er.—Security  Sav.  Bank  of  Wellman  t.  Smith 
(Iowa)  825. 

PRINTING. 

Discrimination  in  letting  municipal  contract  for, 
see  Municipal  Corporations,  H  241,  1000. 

PRIORITIES. 

Of  mortgages,  see  Mortgages,  |  181. 
Of  rights  of  surviving  wife,  see  Executors  and 
Administrators,  {  182. 

PRISONS. 

Authority  of  board  of  control  to  contract  in- 
debtedness for  construction  of  state's  prison, 
see  States,  §  115. 

Constitutionality  of  law  authorizing  levy  of  tax 
for  construction  of  state's  prison,  see  Taxation, 
%  3& 

Construction  and  effect  of  certificates  of  indebt- 
edness issued  by  board  of  control  for  construc- 
tion of  state's  prison,  see  States,  g  115. 

PRIVATE  ROADS.    . 

Bights  of  way,   see   Easements. 

PRIVILEGE. 

Effect  on  limitation,  see  Limitation  of  Actions, 
g  72. 

PRIVILEGED  COMMUNICATIONS. 

Defamatory  communications,  see  Libel  and 
Slander,  g  48. 


For  cases  lo  Dec.  Dig.  *  Amer.  Digs.  1907  to  date  ft  Indexas  Me  same  topic  *  section  ({)  NUMBER 

Digitized  by  LjOOQ  l€ 


1224 


122  NORTHWESTERN  REPORTER. 


Disclosure  by  witness,  see  Witnesses,  |t  196- 
202. 

PRIVITY. 

Admissions  by  privies,  see  Evidence,  |{  234,  235. 

PROBABLE  CAUSE. 

For  OTOsecttUon,  see  Malicious  Prosecution,  H 

PROBATE. 

Of  wUl,  see  Wills,  fS  219-432. 

PROBATE  COURTS. 

See  Courts,  {  200%. 

PROCEDURE. 

See  cross-references  under  Practice. 

PROCESS. 

To  sustain  judgment,  see  Judgment,  f  17. 

In  actiona  againtt  partioular  cltutei  of  penoiu. 
Foreign  corporation,  see  Corporations,  {  668. 
Foreign  insurance  company,  see  Insurance,  i 
627. 

In  pmrticitlar  ootiont  or  proceeding!. 
For  commitment  of  abandoned  children,  see  In- 
fants, I  19. 
On  appeal,  see  Appeal  and  Error,  ||  413-417. 
On  insurance  policy,  see  Insurance,  I  627. 

Particular  formt  of  writt  or  other  proceis. 

See  Arrest ;   Execution ;   Garnishment ;    Injunc- 
tion;   Mandamus;    Quo  Warranto;   Replevin. 

Search  warrant,  see  Searches  and  Seizures. 

U.   SEBVIOE. 

In  proceedings  for  commitment   of  abandoned 
children,  see  Infants,  {  19. 

(A)  Fersomal   Service  im   Qeneral. 

i  62.  Under  Comp.  Laws,  i  10,010  (Pub. 
Acts  1901,  p.  384,  No.  225),  the  court  held  not 
to  have  acquired  jurisdiction  of  a  nonresident 
codefendant.— Brown  t.  Bennett  (Mich.)  305. 

(B)  Retara  and  Proof  of  Serrlee. 

{  127.  A  trial  court  acquires  jurisdiction,  if 
at  all,  through  the  proper  service  of  summons, 
regardless  of  the  return.— Marin  y.  Titos  (S. 
D.)  596. 

{  145.  The  signature  to  an  acknowledgment 
of  service  of  process,  where  dated  and  in  the 
form  prescribed  by  statute,  will  be  presumed 
genuine,  in  the  absence  of  contrary  evidence. — 
Black  v.  Chase  (Iowa)  916 ;    Same  v.  Black,  Id. 

PROFITS. 

Loss  of  as  element  of  damages,  see  Damages, 
I  40. 

PROHIBITION. 

Of  traffic  tn  intoxicating  liquors,  see  Intoxicating 
Liquors. 

PROMISSORY  NOTES. 

See  Bills  and  Notes, 

PROMOTERS. 

See  Corporations,  §|  30,  99. 
Of  joint-stock  company,  see  Joint-Stock  Com- 
panies, I  6. 


PROOF. 

Of  death,  see  Death. 

Of  loss  insured  against,  see  Insurance,  |i  555- 

558,  789. 
Of  service  of  notice  to  redeem  from  tax  sale, 

see  Taxation,  8  707. 
Of  service  of  process,  see  Process,  {{  127,  145* 

PROPERTY. 

Certificate  of  mortgage  foreclosure  sale  as  per- 
sonal property  assignable  by  executor,  see 
Executors  and  Administrators,   f   39. 

Constitutional  guaranties  of  rights  of  property, 
see  Constitutional  Law,  |{  102,  2ol-d(^ 

Of  particular  cla$*e*  of  periout. 
See  Husband  and  Wife,  {  6. 

Particular  ipeciet  of  property. 
See  Animals ;   Franchises ;     Oood   Will ;    Logs 
and   Logging. 

Trantfert  and  other  matter*  affecting  title. 
See  Adverse  Possession. 
Dedication  to  public  use,  see  Dedication. 
Taking  for  public  use,  see  Eminent  Domain. 

PROTEST. 

Of  bill  or  note,  see  Bills  and  Notes,  §  404. 
Recovery  of  taxes  paid  under  protest,  see  Tax- 
ation, f  542. 

PROVINCE  OF  COURT  AND  JURY. 

In  civil  actions,  see  Trial,  i  186. 
In   criminal   prosecutions,    see   Criminal   Lew, 
i  762. 

PROXIMATE  CAUSE. 

Direct  or  remote   consequences  of  injury,   see 

Damages,  ||  23^40. 
Of    injuries    from    electricity,    see    Electricity, 

I  19. 
Of  injury  in  general,  see  Negligence,  |  56. 
Of  injury  to  passenger,  see  C^irriers,  I  305. 
Of  injury  to  servant,  see  Master  and  Servant, 

I   247. 

PUBLIC  DEBT. 

See  Counties,  |  17&;  Municipal  Oirporations, 
§8  860-1000;  Schools  and  School  Districts, 
I  91;    States,  §i  115-137;    Towns,  H  46-52. 

PUBLIC  IMPROVEMENTS. 

By  municipalities,  see  Mnnicipal  Corporation*, 

18  289-578. 
By  state,   see   States,  8  83. 

PUBLIC  LANDS. 

Appropriation  of  water  rights,  see  Waters  and 
Water  Courses,  88  12,  21. 

II.  STTKVET  AITBjDMPOSAI.  OF  UUn>8 
OF  UNITED  STATES. 

(F)   Siramp  and  Oyerllovred  laaads. 

8  58.  Until  a  patent  is  issued  from  the  Unit- 
ed States  to  the  state  for  swamp  land,  the 
legal  title  remains  in  the  general  government. 
—State  v.  Jones  (Iowa)  241. 

(J)  Patents. 

8  113.  Under  Acts  30th  Gen.  Assem.  1904, 
p.  166,  c.  185,  approved  April  11,  1904,  provid- 
ing for  the  survey  and  sale  of  abandoned  river 
beds  within  the  jurisdiction  of  the  state,  a 
patent  of  land  within   the  jurisdiction  of  an- 


Toplcs,  divisions,  ft  section  (i)  NUMBERS  In  thU  Index,  A  Dec.  *  Amer.  Digs,  ft  Reporter  Indexaa  agrwi 

Digitized  by  VjOOQ  l€ 


INDBX-DIGBST. 


1225 


other  state   ia   Toid.— Coolthard  ▼.   Mcintosh 
(Iowa)  233. 

S  116.  A  iMktent  granted  by  the  state  ander 
Acts  30th  Oen.  Assem.  1904,  p.  166,  c.  186, 
approved  April  11,  1904.  providing  for  the 
survey  and  sale  of  abandoned  riverbeds  within 
the  jurisdiction  of  the  state,  is  only  presump- 
tive evidence  that  the  land  granted  was  within 
the  state,  and  the  grant  may  lie  rendered  void 
by  showing  the  contrary.— Conlthard  v.  Mc- 
intosh (Iowa)  233. 

PUBLIC  POLICY. 

AlFecting  validity  of  contract  for  maintenance 
of  telephones  in  pablic  offices,  withoat  charge, 
see  Telegraphs  and  Telephones,  f  82. 

Validity  of  contract,  see  Contracts,  f  106. 

PUBLIC  SCHOOLS. 

See  Schools  and  School  DUtricts,  ||  62-150. 

PUBLIC  SERVICE  CORPORATIONS. 

See    Carriers;     RailToads;     Street    Railroads; 

Telegraphs  and  Telephones. 
Validity  of  contract  with  as  atCected  by  public 

policy,  see  Contracts,  §  106. 

PUBLIC  USE. 

Dedication  of  property,  see  Dedication. 
Taking  property  for  pnblic  use,  see  Eminent 
Domain. 

PUNISHMENT. 

See  Criminal  Law,  |  1206;    Pardon. 

PUNITIVE  DAMAGES. 

See  Damages. 

PUPILS. 

See  Schools  and  School  Districts,  {  1C9. 

QUALIFICATIONS. 

Of  members  of  dty  conncil,  see  Municipal  Cor- 
porations, I  84. 

QUANTUM  MERUIT. 

See  Work  and  Labor. 

QUARANTINE. 

See  Health,  |  16. 

QUESTIONS  FOR  JURY. 

In  civil  actions,  see  Trial,  ii  130-145. 
In   criminal   prosecutions,   see   Criminal   Law, 
1762. 

QUIETING  TITLE. 

I.  BIOHT  OF  4OTION  AND  DEFENSES. 

I  13.  A  bill  under  Comp.  Laws  1897,  g  448, 
to  quiet  title,  lies  only  in  case  defendant  is  not 
in  possession,  and  the  bill  must  aver  actual  or 
constructive  possession  in  complainant. — Moody 
V.  Macomber  (Mich.)  517. 

U.  FBO0EEDINO8  AND  BELIEF. 

Intervent%>n,  see  Parties,  {  40. 

f  85.  A  bill  under  Comp.  Laws  1807,  |  448, 
to  quiet  title,  must  aver  actual  or  constructive 
possession  in  complainant. — Moody  v.  Macomber 
(Mich.)  517. 


QUITCLAIM. 

See  Deeds,  {f  25,  86. 

Grantee  under  quitclaim  deed  as  bona  tide  pur- 
chaser, see  Vendor  and  Purchaser,  i  224. 

QUO  WARRANTO. 

X.  NATURE  AND   OKOUNDS. 

f  8.  Under  the  Constitution  and  laws  of  the 
state,  the  remedies  by  quo  warranto  and  by  a 
contest  of  an  election  held  cumulative. — State  v. 
C!osgrave  (Neb.)  885. 

{  11.  Quo  warranto,  not  mandamus,  is  the 
proi>er  remedy  to  determine  the  title  to,  and  pos- 
session of,  a  pnblic  office,  and  a  claimant  can- 
not resort  to  mandamus  for  relief. — La  CSiance  v. 
Machia  (Mich.)  271. 

RAILROAD  COMMISSION. 

Demurrer  to  pleading  based  on  order  of,  see 
Pleading,  {  108. 

Joinder  of  cause  of  action  against  railroad  com- 
mission with  cause  against  third  person  to 
prevent  compliance  with  order  of  commission, 
see  Action,  {  50. 

RAILROADS. 

See  Street  Railroads. 

As  employers,  see  Master  and  Servant. 

Carriage  of  goods  and  passengers,  see  Carriers. 

Taxation  of  railroad  property,  exemptions,  see 
Taxation,  |  200. 

Taxation  of  railroad  property,  setting  aside  as- 
sessment of  city  taxes,  see  Municipal  Corpo- 
rations, f  974. 

V.  BIGHT  OF  WAT  AND  OTHEB  IN- 
TEBE8TS   IN  LAND. 

Condemnation  of  ^wpertj  for  right  of  way,  ele- 
ments of  compensation  for  injuries  to  prop- 
erty not  taken,  see  ESminent  Domain,  §|  110, 
111 ;     measure   of   damages   for   injuries    to 

?roperty  not  taken,  see  Eminent  Domain,  || 
40,  141 ;   measure  of  damages  for  taking  en- 
tire tract,  see  B}minent  Domain,  H  131,  134. 
Estoppel  to  claim  rights,  see  Estoppel,  S  70. 

i  69.  Comp.  Laws  1887,  IS  2980,  2999,  3002. 
giving  railroads  the  right  to  acquire  property, 
construed.— Sherman  v.  Sherman  (S.  D.)  439. 

i  82.  A  right  of  way,  granted  to  a  railway 
company,  hela  not  to  tie  forfeited  without  no- 
tice of  the  particular  breach  of  which  the  rail- 
way company  is  guilty. — Treat  v.  Detroit  Unit- 
ed Ry.  (Mich.)  93. 

VL  OONSTBITOTION,   MAINTENANCE, 
AND  EQUIPMENT. 

Compelling  railroads  to  maintain  crossing  on 
extension  of  street  as  exercise  of  power  of 
eminent  domain,  see  Eminent  Domain,  §  2. 

Condemnation  of  property,  right  to  take  ma- 
terials for  construction  outside-  right  of  way, 
see  Eminent  Domain,  |  51. 

Construction  of  drains  under  general  laws  re- 
lating to  drainage,  see  Drains,  |J  2,  26,  47. 

I  95.  Laws  1907,  p.  795,  c.  120,  adding  sec- 
tion 1299h-l  to  St.  1898,  requiring  railroad 
companies  to  construct  and  maintain  the  cross- 
ings where  a  village  street  crosses  their  right 
of  way,  is  a  valid  exercise  of  police  power.— 
Chicago.  M.  &  St.  P.  Ry.  Ca  v.  Village  of 
Fair  Oaks  (Wis.)  810. 

I  95.  Under  Laws  1907,  p.  796,  c.  120.  add- 
ing section  1290h-l  to  St.  1898,  a  railroad  com- 
pany held  bound  to  substantially  adjust  the 
surface  of  a  village  street  between  its  tracks 
at  a  crossing  to  a  level  with  the  rails.— Chicago, 


For  cases  in  Dm.  Dig.  *  Amer.  Digs.  19OT  to  daU  ft  Indexei  Me  same  topic  ft  secUon  (i)  NUMBER 

Digitized  by  dOOQ  iC 


1226 


122  NORTHWESTERN  RBPORTER. 


M.  ie  St  P.  Ry.  Co.  t.  YiUage  of  Fair  Oaks 
(Wis.)  810. 

VH.   BALEM,  I.EA8E8.  TKAFTIC  COH- 
TRACTB,  AXD   CMTSOUDATION. 

f  134.  Under  a  railroad  lease  entitling  the 
lessee  to  reimbursement  for  pro  rata  taxes  on 
the  leased  property  for  the  year  1007,  the 
lessee  company  was  entitled  to  a  pro  rata  for 
the  calendar  year  1907  onder  Gomp.  Iaws,  f  50, 

Sar.  10,  and  not  for  an  alleged  fiscal  year  un- 
er  Pub.  Acts  1905,  p.  441,  No.  282,  S  6.— Pere 
Marquette  R.  Co.  t.  Kalamazoo,  L.  S.  &  C.  Ry. 
Co.  (Mich.)  356. 

X.   OPERATION. 

Railroads  as  employers,  statutory  regulations  aa 
to  couplers  as  affecting  assumption  o£  risk, 
see  Master  and  Servant,  i  204. 

(B)  St«t«torr,      Hanloipal,      ABd      Offlolal 
RegritlatfoBS. 

Reports  of  conductor  relative  to  movement  of 
train  as  best  or  secondary  evidence,  see  Evi- 
dence, I  174. 

Separation  of  conductor's  report  from  stab  as 
affecting  admissibility  in  evidence,  see  Altera- 
tion of  Instruments,  §  2. 

i  'JZt.  An  ordinance  requiring  interarban 
railway  to  stop  its  cars  at  any  street  intersec- 
tion where  a  person  may  desire  to  enter  or 
alight  held  opposed  to  public  policy. — ^Village 
of  Excelsior  v.  Minneapolis  &  St  P.  S.  Ry. 
Co.  (Minn.)  486. 

8  227.  An  interurban  railway,  constructed 
on  the  company's  own  ri{;ht  of  way,  held  not 
because  incidentally  crossing  streets  and  alleys 
to  occupy  the  streets,  within  a  certain  ordi- 
nance regulating  the  place  of  stopping.— Village 
of  Excelsior  v.  Minneapolis  &  St  P.  S.  Ry. 
Co.  (Minn.)  486. 

{  227.  An  ordinance  requiring  an  interarban 
railway  to  stop  its  cars  at  any  street  inter? 
section  where  a  person  might  dedre  to  enter  or 
alight  held  not  a  valid  exercise  of  the  police 
power. — Village  of  Excelsior  v.  Minneapolis  & 
St  P.  S.  Ry.  Co.  (Minn.)  486. 

i  229.  A  logging  train  held  not  within  the 
exception  of  Pub.  Acts  1907,  p.  303,  No.  234, 
requiring  all  cars  to  have  automatic  couplings 
except  trains  of  logging  cars,  the  height  of 
which  from  the  rail  to  center  of  coupling  does 
not  exceed  25  inches.— Betterly  v.  Boyne  City, 
(}.  &  A.  R.  Co.  (Mich.)  635. 

<C)  Companies  and  Persona  Liable  for  la- 
Jarles. 

i  260.  In  an  action  by  a  railroad  yard  con- 
ductor for  injuries  received  by  the  spreading 
of  the  rails  of  a  foreign  track  and  the  ditching 
of  his  engine,  the  liability  of  defendant  held  to 
depend  on  a  showing  that  at  the  time  of  the  in- 
jury the  track  was  under  the  management  of 
defendant,  and  that  the  engine  and  train  crew 
were  using  it  at  its  invitation. — Plumb  v.  Hecla 
Co.  (Mich.)  208. 

i  268.  Evidence  in  an  action  by  the  con- 
ductor of  a  railroad  company  for  personal 
injuries  received  by  the  spreading  of  the  rails 
of  a  track  owned  by  another  held  not  to  con- 
stitute a  variance.— Plumb  v.  Hecla  Co.  (Mich.) 
20a 

i  271.  Evidence  in  an  action  by  a  conduct- 
or of  a  railroad  company  for  personal  injuries 
received  by  the  spreading  of  the  rails  of  a  track 
owned  by  another,  held  admissible.- Plumb  v. 
Hecla  Co.  (Mich.)  208. 

i  272.  Evidence  !u  an  action  by  a  railroad 
conductor  for  injuries  received  by  spreading  of 
rails  of  a  foreign  track  held  sufficient  to  sup- 
l>ort  a  finding  that,  when  hurt,  plaintiff  was 
using   the  track  at  defendant's  invitation   and 


for  ita  benefit— Plamb  ▼.   Hecla  Oo.   (Mich.) 
208. 

i  273.  Eivldence  in  an  action  by  the  con- 
ductor of  a  railroad  company  for  personal  in- 
juries received  by  the  spreading  of  the  rails 
of  a  track  owned  by  another  held  sufficient  to 
take  the  case  to  tne  jury. — Plamb  t.  Hecla 
Co.   (Mich.)   20a 

(D)  Injarlea  to   Ueensees  or  Trespaaaero 
In  General. 

{  275.  In  an  action  for  injuries  to  a  serv- 
ant of  a  third  person  from  the  negligence  of 
the  employas  of  a  railway  company,  plaintiff 
held  engaged  in  furthering  bis  employer's  in- 
terest at  the  time  he.  was  injured,  in  which  the 
railroad  company  had  a  common  interest  and 
was  therefore  liable.— Hendrickson  ▼.  Wiscon- 
sin Cent  «y.  Co.  (Wis.)  758. 

S  275.  In  an  action  against  a  railway  com- 
pany for  injuries  to  the  servant  of  a  third 
person,  defendant  held  negligent  in  failing  to 
keep  a  proper  lookout  and  In  failing  to  give 
warning  of  an  impending  movement  of  the  cars. 
—Hendrickson  v.  Wisconsin  Cent  Ry.  Co. 
(Wis.)  758. 

{  276.  Facts  held  not  to  warrant  recovery 
for  the  death  of  a  boy  killed  in  attempting  to 
jump  from  a  flat  car  on  which  he  was  riding 
m  railroad  yards.- Seeley  v.  Chicago,  D.  &  C. 
G.  T.  J.  Ry.  Co.  (Mich.)  214. 

{  278.  If  a  person  injured  by  a  train  could 
have  seen  the  train  if  he  had  looked,  or  could 
have  heard  it  if  he  had  listened,  he  was  negli- 

Snt  in  going  ui>on  the  track. — Rowe  v.  Chicago, 
.  &  St  P.  R.  Co.  (Iowa)  829. 

8  282.  Interrogatory  and  instruction,  in  an 
action  for  injuries  to  a  person  on  a  railroad 
track,  fixing  the  time  when  plaintiff  was  re- 
quired to  look  and  listen,  held  proper.— Rowe 
V.  Chicago,  M.  &  St.  P.  R.  Co.  (Iowa)  929. 

i  282.  In  an  action  for  injuries  to  the  serv- 
ant of  a  third  person  by  the  negligence  of  de- 
fendant's servants,  whether  plaintiff  was  neg- 
ligent was  for  the  jury. — Hendrickson  t.  Wis- 
consin Cent  Ry.  Co.  (Wis.)  758. 

(F)  Aeeldenta  at   Crossings. 

f  327.  Plaintiff's  driver  held  guilty  of  con- 
tributory negligence  as  a  matter  of  law,  barring 
a  recovery  for  injury  to  his  team  and  wagon  in 
a  railroad  crossing  accident — Hope  v.  Great 
Northern  Ry.  Co.  (N.  D.)  997. 

f  338.  In  an  action  for  injury  to  horses  and 
wagon  in  a  railroad  crossing  accident,  the  doc- 
trine of  last  clear  chance  held  inapplicable- 
Hope  V.  Great  Northern  Ry.  Co.  (N.  D.)  997. 

(G)  Ininries  to  Peraona  on  or  near  Traelcs. 

S  383.    Plaintirs  intestate,  killed  on  a  rail- 
road track,  held  gnilty  of  contributory  negli- 
fence  as  a  matter  of  law. — Raiolo  v.  Northern 
'ac.  Ry.  Co.  (Minn.)  489. 

S  398.  In  an  action  for  cansing  the  death 
of  plaintiff's  intestate,  run  over  by  a  train 
while  lying  on  the  tracks  iu  defendant's  railway 
yards,  evidence  held  not  so  manifestly  in  fa- 
vor of  defendant  as  to  require  reversal  of  an 
order  granting  a  new  trial. — ^Tohuson  t.  Min- 
neapolis &  St  U  R.  Co.  (Minn.)  10. 

(B)   lajnriea  to  Animals  on  or  near  Traeka. 

§  412.  Under  Civ.  Code,  {{  542,  543,  544,  the 
liability  of  a  railroad  for  injuries  to  stock  pass- 
ing through  a  defective  fence  on  the  right  of 
way  held  to  extend  to  injuries  through  being 
struck  by  trains.— Wold  v.  South  Dakota  Cent 
Ry.  Co.  (S.  D.)  583. 

I  412.  Under  Civ.  Code,  H  542,  643.  a  rail- 
road company  constructing  voluntarily  and 
without  notice  a  fence  along  land  abutting  od 
its  road  held  liable  for  injuries  to  cattle  throngh 


Topics,  dlvUlons,  A  nctlon  (i)  NUMBERS  In  thla  Index,  ft  Dee.  *  Amer.  Digs,  ft  Reportm  Index** 

Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1227 


!ta  defective  condition.— Wold  ▼.  Soatb  Dakota 
Cent  Ry.  Co.  (S.  D.)  583. 

RAPE. 

H.  PROSECUTXOKANDPinmHlIENT. 

(B)  BTldeaee. 

I  61.  Evidence  on  a  trial  for  rape  held  to 
identi^  accused  as  the  guilty  person,  justifying 
a  conviction. — State  v.  Hogan  (Iowa)  818. 

S  51.  Penetration  may  be  eRtablisiied  on  a 
trial  for  rape  by  circumstantial  evidence. — 
Cook  V.  Stote  (Neb.)  706. 

I  54.  Corroboration  of  the  testimony  of  pros- 
ecutrix held  necessary  to  sustain  a  conviction 
of  rape.— Donovan  v.  State  (Wis.)  1022. 

REAL  ACTIONS. 

See  Ejectment:    Forcible  Entry  and  Detainer, 
i  30. 

REAL  ESTATE  AGENTS. 

See  Brokers. 

REBATES. 

Of  insurance  premiums,  see  Insurance,  S  184. 

REBUTTAL 

Evidence,  see  Trial,  SI  62-67. 

RECALL 

Of  notice  to  clerk  of  court  to  dismiss  action, 
see  Dismissal  and  Nonsuit,  {  43. 


RECEIPTS. 

tributive 
Mstribution,  f  106%. 


By  heirs  for  distributive  share,  see  Descent  and 
Di 


RECEIVERS. 

Of  corporation,  see  Corporations,  {  621. 
Review  of  decisions,  see  Appeal  and  Error,  g 
266. 

m.  TITX.E  TO  Ain>  POSBEBSIOK  OF 
PBOPEBTT. 

Aba.tement  of  creditors'  snit  on  death  of  defend- 
ant as  affected  by  appointment  of  receiver,  see 
Alxitement  and  Revival,  {  68. 

§  70.  A  receiver's  title  to  property  and  his 
right  to  possession  relate  back  to  the  date  of 
the  order  appointing  him.— Saginaw  County 
Savings  Bank  v.  Duffieid  (Mich^  186. 

V.  AIXO^AHGE   AND   PAYMENT    OF 
0IJUM8. 

I  155.  Certain  creditors  of  a  corporation 
Md  entitled  to  preference  over  other  creditors 
in  the  distribution  of  the  assets  in  receivership 
proceedings. — Davis  v.  Iowa  Fuel  Co.  (Iowa) 
815. 

RECEPTION. 

Of  evidence  at  trial,  see  Trial,  {{  41-133. 

RECORDS. 

As  evidence,  see  Evidence,  |  382. 
Of  tax  title  papers,  see  Taxation,  I  727. 
Records  as  affecting  rights  of  vendor  and  pur- 
chaser, see  Vendor  and  Purchaser,  g  231. 
Transcript  on  appeal  or  writ  of  error,  see  Ap- 

ral  and  Error,  §{  494-712;    Criminal  Law, 
1091. 


I  7.  To  constitute  the  filing  of  papers  in  a 
court  of  record,  it  is  not  necessary  that  au  in- 
dorsement of  the  filing  be  made. — ^In  re  E^ast 
aowa)  153. 

i  9.  Laws  1905,  p.  466,  c.  305.  {  27,  held  to 
apply  to  and  authorize  only  tliose  {persons  who 
are  not  l>ound  by  a  decree  of  registration  of 
land  to  foreclose  their  liens  in  six  montiis  there- 
from.—Doyle  v.  Wagner  (Minn.)  316. 

REDEMPTION. 

From  mortgage,  see  Mortgages,  Ji  591-602. 
From  tax  sales,  see  Taxation,  U  704-709. 

REFERENCE. 

ra.   REPORT  AITD   FimDINOS. 

§  99.  Under  a  reference  simply  for  the  pur- 
pose of  taking  an  accounting  between  the  par- 
ties, the  court  held  not  concluded  by  the  find- 
ings of  the  referee,  except  in  so  far  as  it  adopt- 
ed and  approved  them.— Chambers  v.  Mittnacht 
(8.  D.)  4M. 

REFORMATION  OF  INSTRUMENTS. 

See  Cancellation  of  Instruments. 
Insurance  policy,  see  Insurance,  |  143. 


See  Records. 


REGISTRATION. 
REHEARING. 


See  New  Trial. 

On  appeal  or  writ  of  error,  see  Appeal  and 
Error,  iS  816,  832. 

REIMBURSEMENT. 

Of  connty  attorney  for  ezi>enseB  incurred,  see 
Counties,  fi  138,  139. 

RELEASE. 

See  Compromise  and  Settlement;    Payment 
Of  claim  to  distribute  share,  see  Descent  and 

Distribution,   8   106%. 
Of  expectant  right  to  share  of  heir,  see  Descent 

and  Distribution,  |  70. 

I.  REQinSITES  AND  VAUDITT. 

i  7.  Instrument  held  a  covenant  not  to  sue, 
for  injuries  from  electricity  and  not  a  release. — 
Mnsolf  T.  Dulutb  Edison  Electric  Co.  (Minn.) 
499. 

I  12.  A  promise  to  release  the  maker  of  a 
note  *eW  invalid  for  want  of  consideration.— 
Lipsett  V.  Hassard  (Mich.)  1091. 

n.    OONSTRTTCTION  AND  OPERATION. 

8  28.  An  instrument  executed  by  a  seller  if 
treated  as  a  release  held  not  to  discharge  the 
full  obligation  of  the  buyers.— Rumsey  v.  Fox 
(Mich.)  526. 

i  37.  An  electric  company,  sued  for  the  death 
of  a  telephone  workman,  held  not  entitled  to  de- 
duct from  the  recovery  the  consideration  for  a 
covenant  not  to  sue,  executed  by  the  adminis- 
tratrix of  the  workman  to  the  telephone  com- 
pany.—Musolf  v.  Duluth  Edison  Electric  Co. 
(Minn.)  499. 

RELEVANCY. 

Of  evidence  in  civil  actions,  see  Evidence,   H 
99-145. 


For  cases  in  Dec.  Dig.  ft  Amer.  Digs.  1907  to  date  t  Indexes  lee  same  topic  *  section  (i)  NCMBBR 

Digitized  by  LjOOQ  l€ 


1228 


122  N0RTHWE8TBRN  REPORTER. 


RELIGIOUS  SOCIETIES. 

Subscriptions   for   construction   of  chutcb,  see 
Subscriptions,  {§  4,  21. 

REMAINDERS. 

See  Life  Estates. 

Creation  by  will,  see  Wills,  {  622. 
Kemainderman  as  piardian  of  property  of  in- 
sane life  tenant,  see  Insane  Persons,  {  05. 

S  4.  A  devise  to  one  for  life,  remainder  to 
Itis  heirs,  held  to  create  a  valid  contineent  re- 
mainder.— Westcott  T.  Meeker  (Iowa)  964. 

I  17.  Where  the  interest  of  contingent  re- 
maindermen did  not  vest  until  the  death  of  the 
life  tenant,  their  right  to  recover  the  land  as 
against  the  life  tenant's  grantee  of  the  fee 
did  not  accrue  until  that  time.— Westcott  v. 
Meeker  (Iowa)  864. 

REMEDY  AT  LAW. 

Effect  on  Jurisdiction  of  equity,  see  Equity,  |{ 

Effect  of  existence  of  adequate  remedy  at  law 
on '  right  to  mandamus,  see  Mandamus,  {  3. 

REMOTENESS. 

Ot  evidence  affecting  its  materiality,  see  Evi- 
dence, S  145. 

REMOVAL 

From  office  in  general,  see  Officers,  $  72. 

Of  personal  representative,  see  Executors  and 

Administrators,  §  35. 
Of  telephone  pole  causing  obstruction  in  street, 

see  Telegraphs  and  Telephones,  {  10. 
Power  to  remove  officer,  see  Officers,  |  7. 

REMOVAL  OF  CAUSES. 

m.  CITIZEHBHIF   OB.  ALIENAOE  OF 
PARTIES. 

(A)  DlT«r»e    CltiBeBBhlp    or    Alienage    la 
General. 

i  43.  Diversity  of  citisenship  as  ground  for 
removing  a  cause  to  the  federal  court  must 
exist  at  the  beginning  of  the  suit,  as  well  as 
when  removal  is  prayed. — O'Connor  v.  Chica- 
go, R.  I.  &  P.  Ry.  Co.  (Iowa)  W7. 

VI.  FBOOEESINOS  TO  FBOCUBE  AMD 
EFFECT   OF  BEMOVAL. 

Pleading  conclusions  in  petition,  see  Pleadings, 
I  8. 

§  86.  A  petition  for  removal  of  a  caufie 
to  the  federal  court  held  insufficient  for  fail- 
ing to  allege  the  citizenship  of  plaintiff  at  the 
commencement  of  the  action. — O  Connor  v.  Chi- 
cago, R.  I.  &  P.  Ry.  Co.  (Iowa)  947. 

i  97.  Until  determination  of  a  case  removed 
from  a  state  to  a  federal  court,  no  order  should 
be  made  in  the  state  court  regarding  the  costs 
which  had  accrued  in  that  court. — Wisecarver 
&  Reynard  v.  Chicago,  R.  I.  &  P.  Ry.  Co. 
(Iowa)  909. 

$  97.  A  state  court  had  jurisdiction  to  render 
judgment  for  costs  which  accrued  in  that  court, 
even  though  a  petition  for  removal  to  a  federal 
court,  filed  before  the  accrual  of  costs,  was  sus- 
tained.—Wisecarver  &  Reynard  v.  Chicago,  It. 
I.  &  P.  Ry.  Co.  (Iowa)  909. 

REMOVAL  OF  CLOUD. 

See  Quieting  Title. 


RENT. 

See  Landlord 'and  Tenant,  |  219. 

REOPENING. 

Case  for  further  evidence,  see  Trial,  {  67. 

REPAIRS. 

Of  premises  demised,  see  Landlord  and  Ten- 
ant,   I    152. 

Rights  and  liabilities  of  tenants  in  common,, 
see  Tenancy  in  Common,  {  29. 


Of  statute,  I 


REPEAL 

Statutes,  H  15S-163. 

REPLEVIN. 


Recovery  of  property  retaken  after  exdiange  for 
other  property,  see  Exchange  of  Property,  f 
13. 

X.  BIOHT  OF  ACTIOK  AMD  DEFEHSEB, 

I  8.  Ordinarily  sole  ownership  in  plaintiff 
is  not  necessary  to  maintain  replevin  against 
a  stranger  having;  neither  title  nor  right  to 
possession,  if  plaintiff  has  an  interest  in  the 
property  and  is  entitled  to  x>ossession. — Swen- 
son  v.  Wells  (Wis.)  724. 

n.  JXraUSDICTIOM,    VEMUE,    AMD 
PABTXE8. 

{  21.  Another  than  plaintiff,  who  signed  a 
joint  contract  with  him  for  tlie  sale  of  an  au- 
tomobile to  defendant  in  consideration  of  cer- 
tain lots,  held  a  necessary  party  to  an  action  to 
replevin  the  automobile. — Swenson  v.  Wells 
(Wis.)  724. 

IV.  FZAADIMO  AMD  EVIDEMOE. 

i  72.  In  an  action  to  recover  for  the  will- 
ful and  intentional  cutting  and  conversion  of 
timber,  held,  that  the  evidence  did  not  sustain 
the  finding  that  the  conversion  was  willful  and 
intentional.— Williams  v.  Monks  (Minn.)  5. 


VI. 


EMFOBCE- 


:.  TBIAT.  JUDOMEMT.  EMFOBC 

MEMT  6F  JUDOMEMT,  AMD 

BEVXEIV. 

Merger  and  l>ar  of  cause  of  action,  see  Judg- 
ment, §  590. 

REPLICATION. 

See  Pleading,  U  177,  180. 

REPLY. 

See  Pleading,  !{  177,  180.  • 

REPORT. 

By  bank  officer,  falsification  of,  see  Banks  and 
Banking,  §  62. 

By  coriK)rate  officers,  see  Corporations,  {  338. 

Of  conductor  relative  to  movement  of  train  as 
best  or  secondary  evidence,  see  Evidence,  { 
174. 

Of  conductor,  separation  from  stub  as  affecting 
admissibility  in  evidence,  see  Alteration  of  In- 
struments, I  2. 

On  reference,  see  Reference,  $  99. 

REQUESTS. 

For  instructions  in  civil  actions,  see  Trial,  If 

For  instructions  in  criminal  prosecutions,  see 

Criminal  Law,  f{  829-^34. 
For  special  findings,  see  Trial,  i  351. 


Top1e»,  divisions,  *  section  (»  NUMBERS  ia  this  Index,  *  Dec.  *  Amar.  Digs.  *  Reporter  Indezss  agTM 

Digitized  by  VjOOQ  l€ 


INDEX-DIOEST. 


1229 


RESCISSION. 

Cancellation  of  written  inatrument,  see  Cancel- 
lation of  Instnimenta. 

Of  contract,  see  Contracts,  g|  250-274. 

Of  contract  for  exchange  of  property,  see  Ex- 
change of  Property,  §  11. 

Of  contract  for  sale  of  goods,  see  Sales,  }§  119- 
181. 

RES  GESTiE. 

In  cItU  actions,  see  Evidence,  S  128. 

RESIDENCE. 

See  Domicile. 

Nonresidence  of  executor  as  ground  for  remov- 
al, see  Executors  and  Administrators,  i  35. 

RES  JUDICATA. 

See  Judgment,  Sf  564-690.  658-748. 

RESTRAINT  OF  TRADE. 

Trusts  and  other  combinations,  see  Monopolies, 

<  12. 
Validity  of  contracts,  see  Contracts,  {  117. 

RETAINER. 

Of  attorney,  see  Attorney  and  Client,  S  100. 

RETRACTION. 

Of  libel,  see  Idbel  and  Slander,  t  123. 

RETROSPECTIVE  LAWS. 

See  Statutes,  |  263. 

Constitutional  restrictions,  see  Constitutional 
Law,  i  190. 

RETURN. 

In  mandamus,  see  Mandamus,  {  164. 
Of  process  in  general,  see  Process,  f|  127,  145. 
To  certiorari  to  review  proceedings  in  justice's 
court,  see  Justices  of  the  Peace,  |  20S. 

REVENUE. 

See  Taxation. 

REVERSAL. 

On  appeal,  see  Appeal  and  Error,  {{  1170-1178. 

REVERSIONS. 

Of  lessor,  see  Landlord  and  Tenant,  |  61. 

REVIEW. 

See  Appeal  and  Error ;  Certiorari ;  Criminal 
Law,  is  1018-1186;  Justices  of  the  Peace,  SS 
140-205. 

Bill  in  equity,  see  Equity,  U  442,  447. 

REVIVAL. 

Of  judgment,  see  Judgment,  i§  866. 

REVOCATION. 

Of  probate  of  will,  see  Wills,  $  210. 

RIGHT  OF  WAY. 

See  Easements. 

Of  railroads,  see  Railroads,  g|  68,  82. 

RIPARIAN  RIGHTS. 

See  Navigable  Waters,  H  3!),  44. 


RISKS. 

Assumed  by  employ^,  see  Master  and  Servant, 

SI  208-^'),  2&. 
Within  insurance  policy,  see  Insurance,  H  421- 

461. 

ROADS. 

See  Highways. 

Streets  in  cities,  see  Municipal  Corporations,  {{ 
703-706,  762-821. 

RULE  IN  SHELLEY'S  CASE. 

See  Wills,  g  608. 

Application  of  rule  to  deed,  see  Deeds,  {  128. 

SALES. 

Negligent  sale  of  explosives,  see  Explosives. 

Sttle$  hf  or  to  particular  clatiea  of  per§on$. 
See  Executors  and  Administrators,  |  138. 
Auctioneers,  see  Auctions  and  Auctioneers. 

JSaie*  of  particular  tpecie$  of,  or  eitatea  or  In- 

tercttt  in,  property. 
See  Good  Will,  g  5;  Intoxicating  Liquors. 
Property  of  decedent's  estate,  see  Executors  and 

Administrators,  §  138. 
Realty,  see  Vendor  and  Purchaser. 

Balei  on  judieial  or  other  prooeedingt. 
On  foreclosure  of  mortgage,  see  Mortgages,  U 

338,  538,  553. 
Tax  sales,  see  Taxation,  {  686. 

X.  BEQUISITES  AND  VAIIDITT  OF 
CONTRACT. 

S  21.  Where  plaintiff  sold  cattle  feed  for  a 
particular  purpose  upon  representations  that 
It  was  suitable  for  that  purpose,  upon  which 
defendant  relied,  if  the  article  was  of  no  value 
for  such  purpose,  there  was  a  failure  of  con- 
sideration.—Swift  &  Co.  V.  Redhead  (Iowa)  140. 

§  52.  Evidence  held  to  sustain  finding  that 
certain  machinery  was  sold  under  an  oral  and 
not  a  written  contract.— Hicks  v.  Aultman  En- 
gine &  Thresher  Co.   (Minn.)   15. 

n.  CONSTBVCTION     OF     CONTRACT. 

Contract  with  corporation,  see  Corporations,  } 
388. 

t  71.  Under  a  contract  for  furnishing  cement 
to  defendant  city,  plaintiff  held  bound  to  furnish 
all  the  cement  required  by  defendant  during  a 
certain  period.— F.  B.  Holmes  ft  Co.  v.  City 
of  Detroit  (Mich.)  506. 

S  7.').  A  contract  for  the  sale  of  certain  arti- 
cles held  to  cover  their  actual  cost  of  manufac- 
ture.—Humphrey  V.  Holden  (Mich.)  103. 

I  82.  Under  contract,  held,  that  the  sum 
which  the  seller  allowed  the  buyer  to  retain 
■was  not  a  permanent  credit,  but  left  with  the 
buyer  as  a  guaranty  of  performance. — Reliable 
Match  Co.  V.  Price  (Minn.)  461. 

m.  MODIFICATION   OB   BEBCIBSION 
OF  CONTRACT. 

(C)  ReseiBBion  br  Buyer. 

gg  119,  126.  An  attenu>ted  rescission  by  the 
purchaser  of  a  contract  of  purchase  of  a  thresh- 
ing outfit  hel^  ineffectual  because  of  delay 
and  noncompliance  with  contract. — Northwest 
Ttresher  Co^  v.  Mehloff  (S.  D.)  428. 

{  124.  Where  a  seller  clearly  declares  to  a 
buyer  his  determination  to  insist  on  the  suffi- 
ciency of  a  machine  sold  him,  and  refuses  to 
accept  its  return  in  any  way,  the  buyer  need 
not,  pursuant  to  the  contract,  return  it  to  the 


For  cases  la  Dec.  Dig.  ft  Amer.  Digs.  1907  to  data  ft  Indexes  see  same  topic  ft  section  (i)  NUMBER 


Digitized  by  LjOOQ  IC 


1230 


122  NORTHWESTERN  REPORTER. 


Elace  -where  received  as  condition  precedent  to 
is  riglit  to  rescind  for  breach  of  warranty. — 
J.  I.  Case  Threshing  Macfa.  Go.  t.  Johnson 
(Wis.)  1037. 

f  128.  On  sale  of  manufactared  articles,  a 
shipment  of  the  article  by  the  vendee  to  the 
manufacturer,  with  notice  of  claim  for  defects, 
held  a  proper  assertion  of  the  claim  and  demand 
for  credit.— Eicelsior  Supply  Co.  v.  Charles  A. 
Stickney  Co.  (Minn.)  870. 

I  128.  In  an  action  for  goods  sold,  finding 
that  the  contract  was  rescinded  held  sustained 
by  the  evidence. — Excelsior  Supply  Co.  v. 
Charles  A.  Stickney  Co.  (Minn.)  870. 

i  131.  Where  cattle  feed,  sold  npon  represen- 
tations that  it  would  fatten  cattle,  was  in  fact 
injurious  to  them,  the  seller  could  not  recover 
for  a  i>art  of  the  feed  not  used,  where  the  buy- 
er advised  him  that  it  was  held  subject  to  his 
order.— Swift  ft  Co.  v.  Redhead  (Iowa)  14a 

ZV.  PERFORMANCE    OF    COHTBAOT. 

(C)  Dellrery    and    Aoceptenee    of    Goods. 

§  161.  Delivery  to  a  carrier  is  as  a  general 
rule,  delivery  to  the  consignee.— Fruit  Dis- 
patch Co.  V.  Oilinsky  (Neb.)  45. 

i  162.  Where  a  fruit  dealer  ordered  a  car 
of  bananas,  knowing  that  it  had  already  been 
shipped  under  a  bill  of  lading  not  disclosing 
any  consignee,  held  that  title  was  transferred, 
and  the  bananas  delivered,  as  soon  as  dealer's 
name  as  consignee  was  inserted  in  the  bill  of 
lading.— Fruit  Dispatch  Co.  v.  Gilensky  (Neb.) 

i  ISO.  The  mere  payment  for  logs  delivered 
under  a  contract  providing  for  payment  as  de- 
liveries were  made  without  objection  held  not  to 
waive  the  right  to  the  balance  of  the  logs  or 
damages  for  failure  to  perform.— Malueg  v. 
Hatten   Lumber  Co.   (Wis.)   1067. 

{  181.  Evidence,  in  an  action  for  the  price 
of  lumber,  held  to  show  acceptance  by  the 
buyer  of  6,435  feet  as  merchantable  lumber. — 
Godkin  v.  Weber  (Mich.)  1083. 

i  182.  Whether  jewelry  had  been  accepted, 
so  as  to  preclude  a  rescission  by  the  buyer, 
because  not  of  the  kind  or  character  contract- 
ed for,  held,  in  an  action  for  the  price,  for  the 
jury. — Ziehme  v.  Simms  (Minn.)  458. 

TI.  WABBAIfTIES. 

i  261.  If  defendant  purchased  cattle  feed  for 
the  purpose  of  fattening  his  cattle,  which  was 
known  to  the  seller,  who  represented  that  it 
was  suitable  for  that  purpose,  upon  which  de- 
fendant relied,  there  was  a  warranty  that  the 
feed  was  reasonably  fit  for  the  purpose  con- 
templated.—Swift  &  (30.  V.  Redhead  (Iowa)  140. 

§  261.  No  particular  form  of  words  is  nec- 
essary to  constitute  a  warranty  of  goods ;  it 
being  only  essential  that  the  parties  understood 
that  there  was  a  warranty. — Swift  ft  Co.  v. 
Redhead  (Iowa)  140. 

VII.  REBIEDIES    OF    SEIXER. 

(E)  Actions  for  Price  or  Valne. 

{  347.  Parties  to  a  contract  for  the  purchase 
of  personalty  who  never  attempted  to  rescind 
the  contract  cannot,  when  sued  on  the  notes 
given  for  the  price,  question  the  validity  of  the 
contract  on  the  ground  of  fraud. — Rumsey  v. 
Fox  (Mich.)  526. 

g  348.  A  claim  for  unliquidated  damages  re- 
sulting from  the  wortblessness  of  hay  for  the 
price  of  which  suit  was  brought  held  unavail- 
able as  a  set-off.- Spear  v.  Hanson  (Mich.)  110. 

f  355.  In  an  action  for  the  price  of  beer 
sold  defendant,  where  the  plea  was  the  general 
issue,  with  notice  of  a  special  defense  to  the 


effect  that  the  beer  in  question  was  defective, 
and  on  a  certain  date  after  its  sale  plaintiff 
agreed  to  deduct  so  much  per  tMirrel  front 
future  purchases  until  the  pnce  of  the  defec- 
tive beer  was  paid,  defendant  conld  show  that 
the  agreement  was  made  at  a  later  date  than 
that  alleged.— Buckeye  Brewing  Co.  v.  Eymer 
(Mich.)  124. 

I  860.  Where  the  buyer  agreed  to  pay  the 
seller  the  market  price  for  logs  if  the  contract 
between  them  did  not  entitle  the  buyer  to 
them  at  the  price  named  therein,  and  the  con- 
tract had  terminated  by  its  own  limitations 
subject  to  the  buyer's  damages  because  of  par- 
tial performance,  held,  that  the  seller  was  en- 
titled to  the  market  price  of  such  logs.— Maluep 
V.  Hatten  Lumber  Co.  (Wis.)  1057. 

f!  303.  In  an  action  for  the  price  of  goods 
d,  the  qnestion  whether  they  were  purchased 
by  defendant,  or  whether  he  merely  guaranteed 
the  purchase  of  a  third  person,  held  for  the 
jury.— Leistikow  v.  Zuelsdorf  (N.  D.)  340. 

(F)    AotloBB  for  DaaMces, 

i  369.  Under  Rev.  Civ.  Code.  K  1164.  1169. 
held,  that  where,  in  a  case  of  sale,  offer  of 
delivery  is  only  on  condition  of  price  being  paid 
or  notes  given,  in  accordance  with  contract,  and 
the  purchaser  refuses  to  accept  or  perform,  ac- 
tion can  only  be  for  damages  for  breach. — In- 
ternational Harvester  Co.  of  America  t.  Hay- 
worth  (S.  D.)  412. 

I  371.  Under  Rev.  Civ.  Code,  S  1163,  heU 
that,  in  order  to  constitute  an  offer  of  delivery 
of  property  sold  authorizing  action  for  breach 
on  refusal  by  the  buyer,  the  property  most  be 
separated  from  other  proper^. — International 
Harvester  Co.  of  America  v.  Hayworth  (S.  D.) 
412. 

Vm.  REMEDIES    OF   BUXER. 

Negligence  of  railroad  company  bringing  glan- 
dered  horse  into  state  as  proximate  cause  of 
injury  to  subsequent  purchaser,  see  Negli- 
gence, g  56. 

(A)  Reeorerr  of  Prlee. 

i  307.  Evidence,  in  an  action  to  recover 
the  price  of  fruit,  held  to  sustain  a  finding 
that  a  contract,  printed  in  the  back  of  a  book 
containing  a  cipher  code,  and  embodying  uni- 
form conditions  of  sale,  was  executed  by  de- 
fendant—Fruit Dispatch  Co.  v.  Gilinsky  (Neb.) 
45. 

(C)  Actions  tor  Breach  of  Controet. 

i  418.  Measure  of  damages  for  breach  .of 
contract  of  sale  if  personalty  stated. — Malueg 
V.  Hatten  Lumber  Co.  (Wis.)  1057. 

i  418.  Nominal  damages  alone  are  recover- 
able for  breach  of  a  contract  of  sale  of  person- 
alty, where  the  market  value  at  the  time  and 
place  of  delivery  is  not  shown  to  exceed  the 
contract  price. — Malueg  v.  Hatten  Lnmber  Co. 
(Wis.)  1057. 

(D)  Actions  and  Connterelalaui  for  Breach 
of  'Warranty. 

Unliquidated  claims  for  damages  for  breach  of 
warranty  as  ground  for  attachment,  see  At- 
tachment, §  8. 

I  427.  Plaintiff  held  entitled  to  recover  from 
seller  of  machinery  on  breach  of  warranty. — 
Hicks  V.  Aultman  Engine  &  Thresher  Co. 
(Minn.)  16. 

i  430.  That  the  boyer  has  in  turn  sold  with 
a  warranty,  and  has  not  been  compelled  to  re- 
spond for  a  breach  thereof,  does  not  affect  his 
right  to  recover  for  a  breach  of  warrant/  on 
the  sale  to  him.— McClatchey  v.  Anderson  (Neh.) 
67. 


Topics,  divisions,  ft  ssetton  (i)  NUMBBR8  In  tUa  Indsz,'*  Dec.  ft  Amar.  Digs,  ft  Rsportar  ladszw  agrsa 

Digitized  by  LjOOQ  l€ 


INDBX-DIGBST. 


1231 


I  441.  In  an  action  for  the  price  of  cattle 
feed,  where  defendant  countercfaimed  for  in- 
juries to  the  cattle  and  loss  of  profits  caused 
by  its  use,  evidence  held  to  show  that  defend- 
ant learned  of  its  injurious  effect  on  the  cattle 
two  days  after  he  began  using  it  and  thereafter 
continued  to  feed  it  with  such  knowledge. — 
Swift  &  Co.  T.  Redhead  (Iowa)  140. 

{  441.  In  an  action  for  the  price  of  cattle 
feed,  evidence  held  to  sustain  a  finding  that 
the  feed  was  not  suitable  for  fattening  cattle, 
as  represented  by  the  seller,  but  was  worthless 
for  that  purpose.— Swift  &  Co.  t.  Redhead 
(Iowa)  14(X 

S  442.  In  an  action  for  the  price  of  cattle 
feed,  in  which  defendant  counterclaimed  for 
breach  of  warranty  that  the  feed  would  fatten 
the  cattle,  damages  caused  defendant  by  feed- 
ing them  with  the  feed  held  sufficiently  certain 
to  entitle  him  to  recover  therefor.— Swift  &  Co. 
V.  Redhead  (Iowa)  140. 

i  442.  Measure  of  damages  for  breach  of 
warranty  declared.— McClatchey  v.  Anderson 
(Neb.)  67. 

S  445.  In  an  action  for  the  price  of  cattle 
feed,  whether  the  seller  warranted  that  it  was 
suitable  for  fattening  cattle  held  for  the  jary. 
—Swift  ft  Cx).  V.  Redhead  (Iowa)  140. 

i  446.  In  an  action  founded  on  a  warranty 
given  by  defendant  on  a  sale  by  him  to  plain- 
tiff of  book  accounts,  an  instruction  held  er- 
roneona.— Fitzpatrick  v.  Manheimer  (Mich.)  83. 

SATISFACTION. 

See  Compromise  and  Settlement ;  Ptiyment ;  Re- 
lease. 
Of  mortgage,  see  Mortgages,  U  298,  301. 

SCHOOLS  AND  SCHOOL  DISTRICTS. 

U.  PVBUC   SCHOOIA. 

Repeal  of  8t8tate  relating  to  high  schools,  see 
Statntes,  {  161. 

State  school  for  dependent  children,  appropria- 
tions in  aid  of,  see  States,  §  130. 

(CS)  OoTCniinent,  Ofllcers,  and  Dlatrlct 
HeetlBKs. 

f  62.  Under  St.  1896,  gf  432,  436,  a  sdtiool 
board  held  individually  responsible  for  contracts 
and  orders  not  executed  in  compliance  with 
those  sections.— State  Bank  of  Reeseville  t. 
Keinberger  (Wis.)  1132. 

§  62.  School  district  officers  will  only  be 
held  personally  liable  on  a  district  order  where 
it  is  shown  that  the  order  was  illegally  issued. — 
State  Bank  of  Reeseville  t.  Keinberger  (Wis.) 
1132. 

(D)  Dlatrlct  Propertr,  Contracts,  and 
I.labllltlea. 

Approval  of  work  by  architect  as  condition  pre- 
cedent to  right  of  contractor  to  recover  for 
construction  of  school  building,  see  Contracts, 
J  284. 

Rights  of  parties  on  partial  performance  of  con- 
tract for  construction  of  school  building,  see 
Contracts,  i  319. 

8  80.  In  an  action  by  a  contractor  to  re- 
cover the  money  required  to  be  deposited  at 
the  time  of  making  a  bid,  held,  that  no  con- 
tract had  ever  been  entered  into  and  he  was 
entitled  to  the  money. — Smith  v.  Independent 
School  Dist.  No.  12,  St.  Louis  County  (Minn.) 
173. 

(B)  DIatPlet  Debt,  Seevrltles,  and  Tax- 
ation. 

Subject  and  title  of  statute,  see  Statutes,  {  121. 


I  91.  In  directing  the  county  superintendent 
of  instruction  to  furnish  the  county  clerk  with 
the  data  for  a  levy,  when  a  school  district  re- 
fuses to  vote  taxes  for  free  high  school  purpos- 
es, the  free  high  school  act  of  1907  (Sees.  Laws 
1907,  p.  402,  c.  121)  does  not  delegate  to  the 
superintendent  a  taxing  power  exclusively  com- 
mitted to  school  districts  ander  Const,  art.  9, 
i  6.— Wilkinson  v.  Lord  (Neb.)  699. 

(H)  Paplla,  and  Conduct  and  Dtadpllne  of 
Behoola. 

Presumptions  as  to  validity  of  statutory  regu- 
lations, see  Constitutional  Law,  g  48. 

g  159.  Under  Laws  1903,  p.  148,  c.  1.32,  the 
fact  that  a  pupil's  resident  school  district  had 
not  provided  for  instruction  above  the  eiehth 
grade  held  to  excuse  her  from  continuing  school 
there,  and  to  authorize  her  attendance  at  a 
neighboring  high  school  at  the  expense  of  the 
home  district.— Board  of  Education  of  City 
of  Yankton  v.  School  Dist  No.  19,  Yanktou 
County  (S.  D.)  411. 

I  159.  A  resident  school  district  held  liable 
for  tuition  _  furnished  by  a  board  of  education 
to  a  nonresident  pupil  under  a  quasi  contractual 
obligation  imposed  by  Laws  1903,  p.  148,  c. 
132.— Board  of  Education  of  City  of  Yankton 
V.  School  Dist.  No.  19,  Yankton  County  (8.  D.) 

SEALS. 

Validity  of  tax  deed  not  under  seal,  see  Taxa- 
tion, t  765. 

SEARCHES  AND  SEIZURES. 

Admissibility  of  search  warrant  in  evidence  in 
prosecution  for  illegal  sale  of  intoxicating  liq- 
uors, see  Intoxicating  Liquors,  g  226. 

Admissibility  of  evidence  wrongfully  obtained, 
see  Criminal  Law,  g  395. 

Under  laws  relating  to  intoxicating  liquors,  see 
Intoxicating  liquors,  g  249. 

g  7.  The  equitable  owner  of  corporate  stock 
held  equitably  entitled  to  examine  the  corporate 
books  to  determine  her  interest,  so  that  an  or- 
der of  court  requiring  such  examination  did  not 
infringe  the  provision  in  the  federal  Constitu- 
tion guarantmg  security  against  unreasonable 
searches,  etc — McGeary  v.  Brown  (p.  D.)  605. 

SECONDARY  EVIDENCE. 

In  civil  actions,  see  Evidence,  gg  157-186. 
In  criminal  prosecutions,  see  Criminal  Law,  g 
400. 

SECRETARY  OF  INTERIOR. 

Approval  of  appropriation  of  water  rights  in 
public  land,  see  Waters  and  Water  Courses,  g 
12. 

SEDUCTION. 

n.  CRZHINAI.  RESPONBIBIZ.ITT. 

Exhibition   of  child   to  show   resemblance,   see 

Criminal  Law,  g  404. 
Presence  of  child  in  court  room,  see  Criminal 

Law,  g  633. 
Reference  to  child  in  argument  of  counsel,  see 

Criminal  Law,  g  715. 

SEIZURE. 

See  Searches  and  Seicurea. 

SELF-SERVING  DECLARATIONS. 

See  Evidence,  g  271. 


Tor  easM  la  Dec.  Dig.  *  Amer.  pigi.  1907  to  data  t  Indexes  sm  same  topic  *  section  (|)  NT7MBBR 

Digitized  by  LjOOQ  IC 


1232 


122  NORTHWESTBBN  REPORTER. 


SERVANTS. 

See  Master  and  Serrant,  U  ISO-lDC. 

SERVICE. 

Of  notice  of  appeal,  see  Appeal  and  E^or,  { 

413. 
Of  notice  to  redeem  from  tax  sale,  see  Taxation, 


ol^^' 


process,  see  Process,  ff  62-145. 

SERVICES. 

See  Master  and  Servant,  i  80;  Worlc  and  La- 
bor. 

SERVITUDE. 

See  Easements. 

SET-OFF  AND  COUNTERCLAIM. 

Dismissal  °ot  counterclaim,  see  IHsmissal  and 
Nonsuit,  S  S2. 

In  particvlar  actions  or  proceedingi. 
See  Ejectment,  g  28. 
For  discharge  of  insurance  agent,  see  Insurance, 

§  85. 
For  price  of  goods,  see  Sales,  §  348. 

n.   SUBJECT-MATTER. 

I  40.  Under  Comp.  Laws  1807,  g  10,075, 
subd.  4,  allowing  a  set-off  where  existing  at  the 
commencement  of  the  action,  held,  that  a  cer- 
tain claim  was  not  ayailable  as  a  set-off.— Ood- 
Itin  T.  Weber  (Mich.)  1083. 

SETTING  ASIDE. 

Transfer  by  principal  to  agent,  see  Principal 
and  Agent,  I  69. 

SETTLEMENT. 

See  CSompromise  and  Settlement ;  Payment ;  Re- 
lease. 

By  executor  or  administrator,  see  Executors  and 
Administrators,  {g  501,  609. 

Of  Mil  of  exceptions,  see  Exceptions,  Bill  of,  g 
33. 

SEWERS. 

Defects  or  obstructions,  see  Municipal  Corpora- 
titms,  gg  830-835. 

In  citie^  submission  to  popular  votes  of  ques- 
tion of  issuing  bonds  for  construction  of,  see 
Municipal  Corporations,  g  918. 

SHELLEY'S  CASE. 

See  Wills,  g  606. 

Application  of  rule  to  deed,  see  Deeds,  g  128. 

SHERIFFS  AND  CONSTABLES. 

Criminal  responsibility  for  escape  of  prisoner,  see 
Escape. 

m.  POWERS,  DUTIES,  AND  LIABIZ.I- 
TIEB. 

Disqualification  to  summon  jury,  see  Jury,  g 
70. 

g  1.52.  Code  1897,  g  4027,  imposing  a  penalty 
on  an  officer  making  an  execution  sale  without 
the  prescribed  notice  thereof,  relates  only  to  a 
sale  of  real  property.— Coad  v.  Schaap  (Iowa) 
900. 


SHIPPING. 

I.  BEOUXiATION   TS   OEMEKAIb 

Liabilities  of  officers  of  navigation  companies 
for  failure  to  make  reports,  see  Corporations, 
g  338.  F-         — . 

SIGNALS. 

Of  automobile  on  street,  see  Municipal  Corpora- 
tions, g  705. 

SIGNATURES. 

To  acknowledgment  of  service  of  process,  see 
Process,  {  145. 

To  return  in  proceedings  on  application  to  es- 
tablish highway,  see  Highways,  g  50. 

To  statement  of  consent  to  sale  of  liquors,  see 
Intoxicating  Liquors,  g  66. 

SIMILAR  FACTS. 

Evidence  of  in  general,  see  Evidence,  {  142, 

SLANDER. 

See  Libel  and  Slander. 

SPECIAL  INTERROGATORIES. 

See  Trial,  gg  349-362. 

SPECIAL  UWS. 

See  Statutes,  gg  79,  80. 

SPECIFICATIONS. 

Of  errors  in  briefs,  see  Appeal  and  Error,  i 
758.  ,  v«. 

SPECIFIC  PERFORMANCE. 

X.  NATURE  AND  GROUNDS  OF  REM- 
EDY IN  OENERAIh 

g  8.  Specific  [>erformance  rests  in  the  court's 
discretion. — Loosing  v.  Loosing  (Neb.)  707. 

g  8.  A  suit  for  specific  performance  is  ad- 
dressed to  the  sound  discretion  of  the  court. — 
Sennett  v.  Melville  (Neb.)  851. 

g  12.  Answer  in  specific  performance  ktld  to 
state  a  defense.— Zellmer  v.  Patterson  (N.  D.) 
381. 

II.  CONTRACTS  ENFOROEABI.E. 

g  52.  Specific  performance  held  to  be  denied 
of  the  contract  in  question. — Loosing  v.  Loosing 
(Neb.)  707. 

g  58.  A  contract  for  sale  of  a  business  pro- 
viding that  the  seller  should  not  re-engage  in 
the  business  in  the  same  city  for  five  years  un- 
der penalty  of  $1,000  per  annum  until  the  end 
of  the  five  years  did  not  preclude  the  buyer 
from  enforcing  specific  performance.— Buckhout 
V.  Witwer  (Mich.)  184. 

g  86.  Evidence  held  to  authorize  a  decree  for 
specific  performance  of  an  agreement  with  a 
testator  that  plaintiff,  his  stepson,  should  share 
in  his  estate  on  performance  of  the  agreement 
by  his  stepson  to  remain  in  the  family  assist- 
ing testator  in  his  business. — Hespen  v.  Wen- 
deln  (Neb.)  852. 

TV.  Proceedings  and  reuef. 

g  121.  In  an  action  for  specific  performance 
of  a  contract  that  plaintiff  should  share  in  the 
estate  of  testator,  evidence  held  sufficient  to  re- 
quire judgment  for  plaintiff. — Hespen  v.  Wen- 
deln   (Neb.)  852. 


Topics,  divisions,  *  section  (|)  NCMBBR8  in  this  Index,  &  Dee.  ft  Amer.  Digs.  *  Reporter  ladaxss  agm 

Digitized  by  LjOOQ  l€ 


IMDBX-DIGBST. 


1233 


f  123.  Findinf  In  an  action  for  specific  per^ 
formance  held  insufficient  to  establish  the  in- 
ference Uiat  the  contract  was  obtained  by  f  land. 
— Evener  Mfg.  Co.  t.  Fink  (Minn.)  180. 

SPECULATION. 

Ultra  vires  speculative  acts  of  corporation,  see 
Corporations,  |  382. 

SPEED. 

'Of  automobile  on  street,  see  Municipal  Corpo- 
rations, I  705. 

SPIRITUOUS  LIQUORS. 

See  Intoxicating  Liquors. 

SPOLIATION. 

8ee  Alteration  6f  Instmtnents,  f  11. 

STARE  DECISIS. 

See  Courts,  |.  92. 

STATEMENT. 

Of  grounds  for  mechanic's  lien,  see  Mechanics' 
Liens,  H  157,  158. 

Of  taxable  property  by  taxpayer,  see  Taxa- 
tion, S  329. 

STATES. 

Courts,  see  Courts. 

Lejiislative  power,  see  Constitntional  Law,  §f 
50,61. 

X.  POX.ITICAI.  STATUS  Ain>  BEUi- 
TIONS. 

(  12.  Where  the  thread  of  the  channel  of 
a  navigable  river,  which  is  the  boundary  line 
between  two  states,  gradually  shifts,  the  bound- 
ary line  shifts  with  the  river,  but  it  does  not 
follow  violent  changes  in  the  bed  of  the  stream 
as  by  avulsion. — Coulthard  v.  Mcintosh  (Iowa) 
233. 

S  12.  While  property  owners  on  navigable 
streams  own  to  the  water's  ed^e,  states  sepa- 
rated by  such  a  stream,  respectively,  extend  to 
the  middle  thread  of  the  stream,  so  that,  in  case 
of  sudden  avulsion,  each  state  would  own  the 
abandoned  bed  to  the  middle  thread  of  the 
stream  before  the  avulsion.— Coulthard  T.  Mc- 
intosh (Iowa)  233. 

H.   GOVERNMEirT  AND  OFFICERS. 

(  83.  The  Legislature  having  delegated  pow- 
er to  erect  an  internal  improvement,  neither 
the  necessity,  usefulness,  nor  manner  in  which 
the  improvement  is  made  can  be  questioned  by 
private  objectors. — In  re  Southern  Wisconsin 
Power  Co.  (Wis.)  801,  809;  Appeal  of  Black 
Hawk  Land  Co.  (Wis.)  801;  Appeal  of  Whit- 
nall  (Wis.)  809. 

TV.  FISGAI.    MANAGEMENT,    PUBLIC 
DEBT,  AND   SECURITIES. 

Power  to  levy  tax  for  construction  of  state's 

prison,  see  Taxation,  §  38. 
State  depositaries,  see  Depositaries,  i  14. 

ii  115,  137.  The  certificates  of  indebtedness, 
which  by  Gen.  I^ws  1909,  p.  29,  c.  27,  §  2,  the 
Board  of  Control  are  authorized  to  is.sue  to  con- 
struct a  new  state's  prison,  do  not  create  an 
obligation  against  the  state,  independent  of  the 
fund  appropriated  and  provided  for  by  the  act, 
and  are  not  in  violation  of  Const,  art.  9,  S  5, 
permittine  the  state  to  contract  debts  for  extra- 


ordinary  expenditures,    bat   not   in  excess   of 
$^50,000.— Brown  t.  Ringdahl  (Minn.)  468. 

i  119.  Laws  1909,  pp.  82,  638,  cc  91,  605, 
appropriating  money  out  of  the  state  general 
revenue  fund  to  build  and  repair  roads  and 
bridees,  held  in  violation  of  Const,  art.  9,  f  5, 
forbidding  the  state  to  engage  in  internal  im- 
provements, and  section  16,  limiting  the  extent 
of  state  aid  in  constructing  highways  and  bridg- 
es.— CJooke  V.  Iverson  (Minn.)  251. 

i  130.  The  State  Public  School  for  Depend- 
ent Children  provided  for  by  Laws  1909,  held 
identical  with  the  Home  for  the  Friendless, 
and  appropriations  made  for  tliat  school,  -wheth- 
er described  as  the  Home  for  the  Friendless  or 
the  State  Public  School,  are  specific  appropria- 
tions as  re(iuired  by  Const,  art.  3,  {  212.— State 
V.  Barton  (Neb.)  64.  • 

STATUTES. 

For  statutes  relating  to  particular  subjects,  see 
the  various  specific  topics. 

Laws  impairing  obligation  of  contracts,  see  Con- 
stitutional Law^  ii  121,  12& 

Statute  of  frauds,  see  Frauds,  Statute  of. 

Statute  of  limitations,  see  Limitation  of  Ac- 
tions, iS  21-38. 

Validity  of  retrospective  or  ex  post  facto  laws, 
see  Constitutional  Law,  i  190. 

X.  ENACTMENT,  REQinSITES,  AND 
VALIDITT  IN  OENERAIi. 

S  63.  A  person  making  complaint  under  a 
statute  may  act  upon  the  assumption  that  the 
statute  Is  valid ;  and,  if  the  law  l>e  declared  in- 
valid, it  will  not  affect  the  question  of  probable 
cause  for  making  the  complaint. — Birasall  v. 
Smith  (Mich.)  62a 

{  64.  Where  it  appears  on  the  face  of  a  leg- 
islative act  that  an  inducement  tor  its  passage 
was  a  void  provision,  the  entire  act  falls. — 
State  T.  Junkin  (Neb.)  473. 

S  64.  No  part  of  a  legislative  act  can  be  en- 
forced, where  the  valid  and  invalid  parts  can- 
not be  separated  so  as  to  leave  an  act  ex- 
pressing the  legislative  will. — State  t.  Junkin 
(Neb.)  473. 

I  64.  Statute  relating  to  carriers  held  not  to 
be  declared  unconstitutional  on  the  ground  that 
it  provides  drastic  penalties  for  its  violation, 
unless  the  penalty  clause  was  the  inducement 
for  its  passage,  and  that  without  such  powers 
the  remainder  of  the  act  is  incomplete.— State  v. 
Adams  Express  Co.  (Neb.)  691 ;  Same  v.  Wells, 
Fargo  &  Co.  (Neb.)  697. 

n.  OENEBAX.  AND  SPECIAX.  OB  I.O- 
CAX    I.AWS. 

S  79.  Const,  art.  4,  §  31,  held  not  to  pro- 
hibit the  granting  of  a  franchise  to  a  water 
company  by  special  act. — In  re  Southern  Wis- 
consin Power  Co.  (Wis.)  801,  809;  Appeal  of 
Blnck  Hawk  Land  Co.  (Wis.)  801 ;  Appeal  of 
Whitnall  (Wis.)  809. 

i  80.  A  statute  authorizing  the  incorporation 
of  a  fraternal  society  composed  of  grand  and 
subordinate  lodges  held  not  in  conflict  with 
Const.  IS.'H),  art.  15,  {  1.— People  v.  Wilson 
(Mich.)  297. 

i  80.  Const  art.  4,  {  31,  held  to  prohibit  the 
granting  of  a  corporate  charter  by  special  act. 
— In  re  Southern  Wisconsin  Power  Co.  (Wis.) 
801.  809;  Appeal  of  Black  Hawk  Land  Co. 
(Wis.)  801 ;  Appeal  of  Whitnall  (Wis.)  809. 

in.   SUBJECTS  AND  TITLES  OF  ACTS. 

i  100.  It  is  only  where  the  title  of  an  act  is 
so  insirfficient  as  not  to  reasonably  suggest  its 


For  cases  in  Dec.  Dig.  &  Amer.  Digs.  1907  to  date  &  Indexes  see  same  topic  ft  section  (i)  NUMBER 


122  N.W.— 78 


Digitized  by 


Google 


1234 


122  NOBTHWESTBRN  EEPORTER. 


purpose,  and  where  !t  contains  provisions  clear- 
ly oatside  tlie  title,  that  it  will  be  held  in- 
valid.—In  re  Southern  Wisconain  Power  Co. 
fWisO  801,  809 ;  Appeal  of  Black  Hawk  Land 
Co.  (Wis.)  801 ;  Appeal  of  WhitnaU  (Wis.)  S09. 

{  109.  A  private  or  local  act  should  not  be 
declared  void  merely  because  the  title  does  not 
express  the  subject  aa  fully  or  unequivocally 
as  possible. — In  re  Southern  Wisconsin  Power 
Co.  (Wis.)  801,  809;  Appeal  of  Black  Hawk 
Land  Co.  (Wis.)  801 ;  Appeal  of  Whitnall  (Wis.) 
809. 

I  112.  Laws  1901,  p.  682,  c.  462,  granting 
a  franchise  for  the  construction  of  a  power  dam 
in  the  Wisconsin  river,  held  not  in  violation 
of  Const,  art  4,  g  18,  for  failure  to  sufficiently 
particularize  the  site  of  the  dam.— In  re  South- 
em  Wisconsin  Power  Co.  (Wis.)  801,  809:  Ap- 
peal of  Black  Hawk  Land  Co.  (Wis.)  801 :  Ap- 
peal of  Whitnall  (Wis.)  809. 

S  lis.  Laws  1883,  p.  133,  c.  107,  providing 
for  the  incorporation  of  annuity,  safety  deposit 
and  trust  companies,  was  not  unconstitutional 
because  of  a  defective  title.^State  v.  Barnes 
(Minn.)  11,  12. 

f  121.  The  title  of  a  statute  declaring  a  leg- 
islative purpose  to  provide  a  four  years'^  course 
of  free  high  school  instruction  of  pupils  resid- 
ing in  districts  where  that  privilege  is  denied  is 
broad  enough  to  cover  taxation  for  the  purpose 
stated,  and  legislation  to  prevent  school  districts 
from  defeating  the  act  by  refusing  to  vote  taxes. 
—Wilkinson  v.  Lord  (Neb.)  699. 

IV.  AMEKSMEirr,  BETISIOK,  Ain> 
CODIFICATION. 

I  1.30.  Cobbey's  Ann.  St  1907,  f{  10,606  and 
10,G07,  relating  to  the  shipment  of  lire  stock 
and  to  feeding  of  the  same  in  transit,  and  pro- 
viding for  a  penalty  for  delay,  is  not  unconsti-' 
tutional  because  amending  certain  other  sec- 
tions of  the  statute  without  mentioning  or  re- 
pealing the  statutes  amended. — Cram  v.  C!hi- 
cago,  B.  &  Q.  R.  Co.  (Neb.)  31. 

V.  REPEAI.,    SUSPENSIOir.    EXPIRA- 
TIOK,   AITD   BJBVIVAX.. 

See  Bridges,  {  5;  Health,  {  16. 

$  158.  Repeals  by  implications  are  not  fa- 
vored.—Reimink  T.  Strabbing  (Mich.)  183. 

{  161.  The  validity  of  the  free  high  school 
act  of  1907  (Sess.  Laws  1907,  p.  40^  c  121) 
must  be  tested  by  the  rule  that  changes  or  modi- 
fications of  existing  statutes  incidental  to  the 
adoption  of  a  new  law  covering  the  whole  sub- 
ject are  not  forbidden  by  Const,  art.  3,  g  11,  re- 
lating to  the  amendment  of  statutes, — Wilkin- 
son V.  Lord  (Neb.)  699. 


S  163.  Where  the  general  law  and  a  later  lo- 
cal act  are  inconsistent,  the  local  act  will  be 
regarded  as  a  modification  of  or  exception  to 
the  earlier  one.— Pattinson  v.  Flayer  (Mich.) 
215. 

i  163.  If  the  remedy  provided  by  a  apedal 
act  upon  a  subject  is  not  incompatible  with 
that  provided  by  an  earlier  and  ^nore  general 
act,  both  acta  8tand.^fitate  t.  Cosgrave  (Neb.) 
885. 

VI.  COHBTaVOTIOir   AND    OPEKA- 
TION. 

(A)  General  Rules  of  CoaatmetloK. 

Statute  relating  to  change  of  venue  in  criminal 
prosecution,  see  Criminal  Law,  |  121. 

f  181.  That  construction  of  a  statute  should 
be  adopted  best  calculated  to  protect  the  pub- 
lic against  fraud,  though  in  individual  instanc- 
es it  may  work  hardship. — Stem  v.  City  of 
Fargo  (N.  D.)  403. 

i  190.  Courts  should  not  be  indnstrioiu  in 
seeking  out  obscure  or  unusual  meanings  to 
attach  to  statutory  expressions,  when  the  words 
used  are  plain  and  unambiguous,  and  the  or- 
dinary meaniup  is  entirely  reasonable. — Green 
Bay  &  Mississippi  Canal  Co.  v.  leiulah  Paper 
Co.  (Wis.)  1062. 

§  226.  To  determine  the  meaning  of  the  lan- 
guage of  an  act,  it  is  proper  to  examine  the 
course  of  legislation  upon  the  same  general  sub- 
ject-State V.  Cosgrave  (Neb.)  885. 

(B)  Partlevlar  Claaaea  of  Statatea. 

{  241.  A  statute  which  is  remedial  as  well 
as  penal  to  the  extent  that  it  operates  against 
the  offender  must  be  construed  strictly. — Rob- 
inson V.  Harmon  (Mich.)  106. 

{  241.  The  rule  that  penal  statntos  are  to 
be  strictly  construed  only  means  that  it  mnst 
satisfactorily  appear  that  the  statute  is  appli- 
cable to  the  person  sought  to  be  bound  thereby, 
which  mnst  Be  determined  from  the  provisions 
of  the  statute  taken  in  their  natural  and  ordi- 
nary sense  without  undue  refinement — Deloria 
V.  Atkins  (Mich.)  659. 

I  243.  A  statute  which  i«  remedial  aa  well 
as  penal  to  the  extent  that  it  operates  against 
the  offender  must  be  construed  strictly. — Rob- 
inson T.  Harmon  (Mich.)  106. 

(D)  RetroaotlTO  Operation. 

Statute  relating  to  record  of  tax  title  paiiers, 
see  Taxation,  8  727. 

f  263.  Statutes  will  not  be  constrned  retro- 
actively unless  the  intent  clearly  appears  that 
they  should  have  such  effect. — Board  of  Sup'rs 
of  Arenac  County  v.  Board  of  Sup'ra  of  Iosco 
County  (Mich.)  629. 


STATUTES  CONSTRUED. 


UNITED  STATES. 

CWNSTITUTION. 
Art  1,  i  8 


876 


STATUTES  AT  LARGE. 

1891,  March  3,  ch.  861,  { 
18,  26  Stet  1101  (U.  S. 
Comp.  St.  1901,  p.  1570)  862 

REVISED  STATUTES. 

fS  2339,  2340  (U.  S.  Comp. 

fct  1901,  p.  1437) 862 

i   5202  (II.    S.   Comp.   St 

1901,   p.  3494) 117 


CJOMPILED  STATUTES 
1901. 

Pages  1437,  1670 862 

Page  3494  117 

IOWA. 

CODE  1897. 

48,  par.  23 957 

225   936 

1441 819 

1448  896 

17.-)0   942 

182C    90S 

§  2163,2164 136 


;  2405 924 

I  2407 921 

i  2445  940 

If  2448^245(),'2452! '.'.'.'.'.'.  824 

I  2906 833 

{  32()2 936 

I  3447 915 

l  3447,  par.  1 816 

f  3447,  par.  8 gi,'! 

§  3453 915 

f  34.^9 600 

!  3641 149 

If  3767,8768 970 

li  3801,  8802 9M 

a  8880,  8685.  8887,  8888  836 

i  4027 900 


T^vlcii,  dlTlaloiu,  *  section  (|)  NUMBERS  In  tUi  Index,  &  Deo.  *  Amar.  Digs.  *  Reportar  Indues  acres 

Digitized  by  VjOOQ  l€ 


INDEX-DIGEST. 


1235 


{4225 97S 
4604 971 
4681 136 

CODE   SUPPLEMENT   1907. 

B1671h,  1571i 236 
1989a7,  1989a9 610 
S060-a7,          30e0-«71, 

3060-8193   918 

i  3260b  et  seq 153 

if  5718-al8  to  671&-a21..  829 

LAWS. 

1856  (Ex.  Sess.)  p.  48,  cfa. 
17,  i  22 896 

1888,  p.  31,  ch.  25. 
Amended  by  Laws  1896, 
p.  67,  ch.  63 916 

'#ilP-.'''..^:.':'!-.^*'..»89« 

^^•lS^.'.^^'.f^:7.'.»896 

1^,  p.  67,  ch.  63 915 

1904,  p.  4o,  cb.  53,  M  8,  9  236 

1904,  p.  166,  ch.  185 233 

1907,  p.  157,  ch.  159 964 

HIOHIOAIV. 

CJONSTITUTION   1850. 

Art  15,11 297,  559 

Art  18,1  2 276 


COMPILED  LAWS  1897. 
I  9 303 

I  50,  par.  10 356 

§436,437 186 

448 517 

507 364 

§860,861 215 

1942 ; 554 

2537 117 

i  2684-2955 570 

!  28fi2-2857,  2873 122 

3441  623,  1098 

8442 523 

8443 523,  1098 

H  3444,  3445 623 

114038.4041 181 

II  4072-4103.  Repealed  by 
Laws  1907,  p.  125,  No. 
108  188 

§  4169.  Amended  by  Laws 

1907,  p.  41,  No.  87,  §  8  183 
§§4309,  4312 303 

.  4314 91 

4334  803 

4424 629 

5395 286 

I  6398 78 

5417 121 

5912 223 

659 

631 

8641 521 

I  9069-9074 644 

9438 257 

9457 544 

9518 514 

9797  et  seq 223 

:  10,010  305 

10,075,  Bubd.  4 1083 

'    10,117 367 

i  10,268  371 

10,425 1084 

10,427 ! 367 

§  10,442,  10,474 640 

10,402 793 

10,504 1073 

ii  10,555,  10,556,  10,559, 
10,560,  10,571,  10,576. . .  640 

110,736 112 
11,334  223 
11,424 626 


I  6823-6847 
§  8264-8270 


CITY  CHARTERS. 

Detroit  (Compilation  1904^ 

§   279) 108 

Muslcegon,  tit.  11,  §  15 189 

Saginaw,  tit.  24,  §  24. 
Loc.  Laws  1905,  p.  761, 
No.  566 623 

LOCAL  LAWS. 

1889,  p.  1,  No.  278 1098 

1903,  p.  549,  No.  475,  §  21  216 
1905,  p.  751,  No.  566,  tit. 
24  §24 523 

LAWS. 

1849,  p.  157.  No.  137,  § 
25.  Amended  by  Laws 
1899,  p.  414,  No.  257. ..  .126 

1855,  p.  28,  No.  20 631 

1895,  p.  56,  No.  3,  ch.  13. 
Amended  by  Laws  1903, 

p.  237,  No.  176 670 

1®9,  p.  414,  No.  257 126 

1899,  p.  455,  No.  268,  §  6  626 
1901,  p.  159,  No.  113,  §  3. .  K7 
1901,  p.  316,  No.  206. 
Amended  by  Laws  1903, 
p.  40,  No.  34;  Laws 
1907,  p.  418,  ito.  310; 
Laws  1907  (Ex.  Sess),  p. 

9.  No.  3 .  .  640 

1001,  p!  354,'  No." 22S'.'.'.'.'.  805 

1J>03,  p.  6,  No.  7 629 

1003,  p.  40.  No.  34 640 

10(>3,  p.  237,  No.  176 570 

1003,  p.  248,  No.  173,  §  31  570 

1003,  p.  .348,  No.  221 177 

1003,  p.  372,  No.  232,  §  12. 
Amended  by  Laws  1905, 

p.  2S3,  No.  194,  §  1 659 

1005,  p.  120,  No.  89 299 

100.5,  p.  283,  No.  194,  §  1  659 

100,->,  p.  322,  No.  223 119 

1005,  p.  417,  No.  271 1080 

1110.1,  p.  441,  No.  282,  §  6  356 
10o,->.  p.  508,  No.  329,  §§ 

1,  6 184 

1907,  p.  41,  No.  37,  13...  183 

1007,  p.  125,  No.  108 .  183 

1007,  p.  303,  No.  234 635 

1007,  p.  315,  No.  244,  §  6. .  629 

1007,  p.  362,  No.  461 117 

1907,  p.  413,  No.  310 640 

1007,  p.  497.  No.  340 .  374 

1907,  pp.  497,  498,  No.  840, 

§§  1,  6.... 196 

1907,  (Ex.  Sess.)  p.  9,  No. 
8 640 


MINNESOTA. 

CONSTITUTION. 

Art.  7,  §  9 462 

Art.  9,  I  2 469 

Art.  9,16 251,  469 

Art.  9,  |i  6-8 469 

Art.  9,  §  16 261 

REVISED  LAWS  1905. 

I  651 468 

I  822 165 

8§  2520-2542 451 

I  3046 4,  11 

I  3487 1119 

I  4154 166 

1  6078,  Bubd.  2 4 

SPECIAL  LAWS. 
1862,  p.  S60,  ch.  86,  §  16. .  876 

LAWS. 

1883,  p.  133.  ch.  107 11 

1883,  p.  139,  ch.  107,  §  11    U 


1895,  p.  757,  ch.  354,  4  1. 

Amended  by  Laws  1897, 

p.    566,    ch.    307,    §    1; 

Laws  1901,  p.  635,  ch. 

321,  §1 812 

1895,  p.  769,  ch.  354,  |  4. 

Amended  by  Laws  1897, 

p.  507,  ch.  307,  §  2 312 

1897,  pp.  566,  567,  ch.  307, 

iS  1,  2 312 

1001,  p.  .535,  ch.  321,  §  1  312 
1005,  p.  827,  ch.  230,  §  28  1120 

100.5,  p.  407,  ch.  271 871 

1005,  p.  418,  ch.  285 319 

1005,  p.  466,  ch.  906/  §  27  316 

1007,  p.  491,  ch.  355 876 

1909,  p.  29,  ch.  27,  §§  1,  2  469 

1909,  p.  82,  ch.  91 251 

1909,  p.  638,  ch.  505 251 


NEBBASKA. 

CONSTITUTION. 

Art.  1,  S§  6,  19,  22 473 

Art.  3,  8  11 699 

Art.  3,  f  22 64 

Art.  9,  §  6 699 

Art.  11,  §  4 31 

CODE  OP  CIVIL  PRO- 
CEDURE. 

473 891 

584.    Repealed  by  Laws 
1905,  p.  657,  ch.  174...  688 

I  675      879 

I  901 688 

COMPILED  STATUTES 

1901. 

§  6336 688 

COMPILED  STATUTES 

1905. 

Ch.  23,  §  176,  Bubd.  1 711 

COMPILED  STATUTES 
1907. 

{  3000 881 

§§  5494-5497b 699 

COMPILED  STATUTES 
1909. 

e§  2796a-2796w 984 

I  3281 886 

i  8502 889 

|§  3855al-3866al98 989 

CORBET'S  ANNOTATED 
STATUTES  1907. 

i  4901  et  seq 711 

i  4903  881 

6407 ;..  41 

8605 63 

9255  61 

§  10,606,  10,607 31,  37 

I  10,927,  10,955. 23 

LAWS. 

1887,  p.  201,  ch.  11 885 

1897,  p.  266,  ch.  47,  §  1. .  69 

1905,  p.  657,  ch.  174 688 

1907,  p.  193,  ch.  49 711 

1907,  p.  402,  ch.  121 699 


473 


1909,  pp.  256,  258,  ch.  63, 
§§  1,3 


NOBTH  DAKOTA. 

coNSTITUT^a^'  ledT" 

§  183  ••••,i{UA'(BNOMBBB 

Digitized  by  VjOOQ  l€ 


1236 


122  NORTHWBSTEBN  RBPOKTER. 


BEVISBD  OODES  1905. 

H  1933,  1939,  1910 386 

li  2563,  2565 799 

i  2678 403 

i  6237  a'** 

H  6237-6251    805 

|1  0834,  6825. 333 

I  7454  336 

!  9931 nil 

LAWS. 
1901,  p.  220,  ch.  165  ....  336 


SOUTH  DAKOTA. 

CONSTITDTION. 

Art.  6,  I  7 6B2 

Art.  11,  S  5 590 

Art.  13.  S  4 664 

Art.  17,  5  8 434 

CIVIL  CODE. 

488,  subd.  4 601 

if  542-544  583 

I  883,  885 433 

I  ©39  600 

i   1163,  1164,  1169 412 

1238,  subd.  5 430 

1243  600 

I  1271,1272 434 

i  1277,  1278 6.58 

i  2313,2322 247 

2415-. 664 

CODE  OP  CIVIL  PRO- 
CEDURE. 

60,  Bubd.  2 850 

90  344 

153 664 

256  647 

294,"29eV363;!;!".;!;;  585 

336,  340 4S2 

445  0>>4 

{  465 419 

I  477 605 

CODE  OF  CRIMINAL  PRO- 
CEDURE. 
U  303,338 652 


I  426 
i  500 


I  814 


PENAL  CODE. 


686 
047 


667 


POLITICAL  CODE. 

1209,  1246 690 

1265  350 

I  1303,  1304 590 

1511,  1512 597 

1836  350 

2162  482 

2213,  2214 600 

2834,  2835,  2838 662 

COMPILED  LAWS  1887. 

1417  350 

I  28.'>4.  2980,  2999,  3002, 
3238,3254 439 


LAWS. 

1890,  p.  112,  ch.  37 850 

1890,  p.  293,  ch.  134 350 

1891,  p.  196,  ch.  80 664 

148,  ch.  132 411 

363,  ch.  173,  S  8  647 


1!)03, 

1907,  ,  . 

1909,  p.  308,  ch.  209 


482 


WISCONSIN. 

CONSTITUTION. 

Art.  4,  I  18 801 

Art.  4,  1  23 736 

Art  4,  §  31 801 

Art.  7,  I  11 801 

Art.  11,  i  3 756 

REVISED  STATUTES  1858. 
Ch.  66 1062 

STATUTES  189& 

18  432,  436 1132 

I  854   7.-)6 

i  8.9.3,  SUM.  11 727 

I  90.-)   727 

§  92.5-38 1030 

I  1210h 1020 

li  1215,1225 1048 


I  1299b-l  added  by  Laws 
1907,  p.  795,  ch.  120...   810 

1764 1055 

{  1771-1791m 801 

1797m-65  added  by  Laws 
1907,  p.  467,  ch.  499.  ..1023 

I  1797m-91    IfniS 

il  1852,  1863a 1M3 

I  2270,  subd.  5 WQ 

i  2345.    Amended  by  Laws 

1905.  p.  35,  ch.  17 1051 

(  2432 S»n 

I  2610 724 

t  2047   1023 

Si  2058,  2860 1131 

I  2S29 743 

i  2S.58m 745 

I  2S9S 1020 

t  2918,  sabds.  6,  7 776 

2921 771 

3070 1020 

{  3374-3406 10*52 

4187  737 

i  4221,  subd.  3 1062 

SANBORN'S  STATUTES 

SUPPLEMENT  1906. 

f  1636JJ    1066 

LAWS. 

1862,  p.  105,  ch.  184 1062 

1885,  p.  1254,   ch.   378,    f 

11   751 

1001,  p.  682.  ch.  462 801 

1901.   p.   686,    ch.   465,    i 

lS<aa 1<M3 

1903,  p.  363,  ch.  234,  sub- 

cli.  Xin 733 

IflOo,  p.  35,  ch.  17.  i  2345  1051 
100.5,  p.  582,  ch.  363,  i  22  74S 

IfHIo,  p.  687,  ch.  419 726 

1905,     p.     687,     ch.    419. 

Amended  by  Laws  1907,  

p.  1240,  ch.  616 775 

1W7,  pp.  467,  477,  ch.  499, 

i§  1797m-65,  1797m-91  1023 
1907,  p.     571,   ch.   346.    i 

2858m    745,  1039 

1907.  p.  795,  ch.  120 810 

1907,  p.  1240,  ch.  646 775 

1909,  p.  2U5,  ch.  192 1129 


STIPULATIONS. 

For  continuance,  see  Continuance,  i  0. 

STOCK. 

Corporate  stock,  see  Corporations,  §  99. 
Of  unincorporated  associations,  see  Joint-Stock 
Companies. 

STOCKHOLDERS. 

Of  unincorporated  associations,  see  Joint-Stock 
Companies. 

STOCK  IN  TRADE. 

Transfers  fraudulent  as  to  creditors,  see  Fraud- 
ulent Conveyances,  i{  239,  241,  235. 

STOCK  LAWS. 

See  Animals,  {  50. 

STREET  RAILROADS. 

See  Railroads. 

CttrrincpT»L passencers,  spe  Cnrriers. 


n.  REOmLATION  AND  OPERATION. 

Special   interroeatories   to  jury   in  action   for 
injuries,  see  Trial,  {  350. 

g  87.  A  street  railroad  company  held  not 
liable  for  an  injury  caused  by  a  horse  becom- 
ing frightened  and  jumping  upou  its  track  in 
front  of  a  moving  car. — Bottje  v.  Grand  Rap- 
ids, O.  H.  &  M.  Ry.  Co.  (Mich.)  87. 

{  99.  One  attempting  to  drive  across  a  street 
car  track  in  front  of  a  car  held  guilty  of  con- 
tributory negligence. — Rouse  ▼.  Michigan  Unit- 
ed Rys.  Co.  (Mich.)  53Z 

i  99.  Action  of  person  in  driving  on  track  in 
front  of  street  car  held  contributory  negligence. 
— Vetter  t.  Southern  Wisconsin  Ry.  Co.  (Wis.) 
731. 

i  101.  One  guilty  of  contributory  negligence 
cannot  recover  for  injuries  through  being  struck 
by  a  street  car  while  attempting  to  cross  the 
track,  ttiough  the  car  was  ^running  faster  than 
permitted  by  a  city  ordinance. — Rouse  y.  Mich- 
igan United  Rys.  Co.  (Mich.)  532. 

i  114.  In  an  action  for  injuries  by  a  colli- 
sion with  a  street  car,  evidence  held  to  conclu- 
sively establish  plaintiff's  contributoir  negli- 
gence.—Sohanno  v.  St.  Paul  City  Ry.  Co. 
(Minn.)  783. 


Tovlcs,  divisions. 


£^l 


iction  (iJ  NUMUEKS  In  this  Index,  &  Dec.  &  Amer.  Digs.  &  Reporter  Indexes  agrea 


Digitized  by  VjOOQ  l€ 


INDICX-mOEST. 


1237 


S  117.  Where  eTidence  conclnsiyely  ebowa 
neglitrence  in  failing  to  look  and  listen  before 
crossing  street  railway  track,  the  question  is 
one  of  law.— Schanno  v.  St  Panl  City  £7.  Co. 
(Minn.)  783. 

STREETS. 

See  Highways ;  Municipal  Corporations,  f  |  703- 
706,  762-821. 

Pnblic  improvements,  see  Municipal  Corpora- 
tions, 8  269. 

STRIKING  OUT. 

Review  of  admission  of  evidence  in  criminal 
prosecution  subsequently  stricken  out  as  de- 
pendent upon  prejudicial  nature  of  error,  see 
Criminal  Law,  i  1169. 

SUBSCRIPTIONS. 

{  4.  A  subscription  to  a  church  building 
fund  on  a  certain  condition  held  a  mere  offer  un- 
til accepted.— Evangelish  Lutberish  St.  Martin's 
Gemeinde  v.  Preuss  (Wis.)  719. 

§  4.  Acceptance  of  a  subscription  to  a  build- 
ing fund  may  be  made  by  expending  money  and 
erecting  a  building  in  accordance  with  the  offer. 
— Evangelish  Lutoerish  St.  Martin's  Gemeinde 
T.  Preuss  (Wis.)  719. 

{  21.  In  an  action  on  a  subscription  to  a 
church  building  fund,  evidence  held  insufficient 
to  show  that  tne  subscription  was  accepted  on 
the  terms  on  which  it  was  made.— Evangelish 
Lintherish  St  Martin's  Gemeinde  t.  Preuss 
(Wis.)  719. 

SUICIDE. 

By  insured,  see  Insurance,  {  788> 


SUIT. 


See  Action. 


SUMMARY  PROCEEDINGS. 

Collection  of  taxes,  see  Taxation,  {}  676,  584. 


See  Process. 


SUMMONS. 


SUNDAY. 


Keeping  saloon  open  on  Sunday,  see  Intoxica- 
ting Liquors,  {  145. 

liiability  of  carrier  for  penalty  for  delay  in 
transportation  of  live  stock  as  affected  by  fail- 
ure  to  operate  train  on  Sunday,  see  Carriers, 
8  20. 

Violation  of  Sunday  laws  as  ground  for  sum- 
mary arrest,  see  Arrest,  8  62. 

8  29.  Sunday  baseball  held  not  a  misdemean- 
or, and  cannot  be  prosecuted  by  indictment  the 
remedy  being  a  civil  action  under  Comp.  Laws 
1897,  8  9797  et  seq.— Yerkes  v.  Smith  (Mich.) 
223. 

SUPPLEMENTAL  PLEADING. 

See  Pleading,  8  279. 

SUPPORT. 

Construction  of  contract  for  conveyance  of  real- 
ty in  consideration  of  support  for  life,  see 
vendor  and  Purchaser,  8  70. 

SURETYSHIP. 

See  Principal  and   Surety. 


SURFACE  WATERS. 

See  Waters  and  Water  Oouises,  8i  U9i  126. 

SURVEYS. 

In  proceedings  in  application  to  establish  Ugh- 
ways,  see  Highways,  8  60. 

SURVIVORSHIP. 

BMdence,  see  Death. 

SUSPENSION. 

Of  municipal  officer,  see  Municipal  Corpora- 
tions, 8  152. 

SWAMP  LANDS. 

See  PnbUc  Lands,  8  68. 

SWINDLING. 

See  False  Pretenses. 

TAXATION. 

Local  or  *peoial  tamet. 

See  Drains,  88  74-85;  Highways,  8  122;  Mu- 
nicipal Corporations,  §_  974;  Schools  and 
School  Districts,  8  91 ;  Towns,  88  46-62. 

Assessments  for  municipal  improvements,  see 
Municipal  Corporations,  81  407-514,  564-67& 

Occupatton  or  privilege  taaei. 
See  Intoxicating  Uqnora,  88  46-95^ 

n.  coNBTrnmoNAx.  require- 

MEMTS  AlTD  RESTRICnONS. 

8  88.    Gen.  Laws  1909,  p.  29.  c  27,  88  1,  2. 

authorizing  the  Board  of  Control  to  construct  a 
new  state's  prison,  and  levying  a  tax  to  pay 
therefor,  'and  permitting  the  board  to  issue  cer- 
tificates of  indebtedness,  held  not  to  contravene 
Const  art  9,  88  2,  6,  6,  7,  8.— Brown  t.  Bing- 
dabl  (Minn.)  469.  ^^ 

m.  MABiT.mr  of  persons  akd 

PROPERTY. 

Rights  and  liabilities  of  parties  to  mortgage,  see 
Mortgages,  8  200. 

(O)  BIzemptloBa. 

8  200.  Whether  the  property  of  a  railroad 
company  is  devoted  to  a  public  use  so  as  to 
exempt  it  from  taxation  by  local  authorities, 
is  not  determined  by  the  extent  of  the  use  by 
the  public,  but  by  its  right  to  use  it,  and  the 
fact  that  it  is  used  by  all  who  desire  to  do 
so.— State  v.  Willcuts   (Wis.)   1048. 

8  200.  Property  of  plaintiff  railroad  com- 
pany held  used  for  public  purpose  as  a  com- 
mon carrier,  so  that  it  was  exempt  from  taxa- 
tion by  a  city.— State  v.  Willcuts  (Wis.)  104a 

8  200.  Under  Stat  1898,  88  1216,  1225, 
property  of  a  railroad  company  held  not  tax- 
able if  necessarily  used  for  a  public  purpose 
in  carrying  out  the  duties  as  a  common  car- 
rier.—State  V.  WillcuU  (Wis.)  1048. 

IV.  PLACE  OF  TAXA-nOK. 

8  276.  Property  belonging  to  a  corporation 
doing  business  in  C.  county  held  assessable  for 
taxation  therein,  under  Rev.  Laws  1905,  8 
822,  though  manufactured  and  stored  in  S. 
county,  where  the  manufacturer  had  no  plao<' 
of  business.— State  v.  Iverson  (Minn.)  165. 


For  eaict  in  Uee.  Dig-  &  Amer.  Digs.  U07  to  4«t«  4k  Indaxes  sm  same  topic  ft  section  (i)  NUMBBR 

Digitized  by  LjOOQ  IC 


1238 


122  NORTHWESTERN  REPORTEI^ 


V.  I.EVT  AND  ASSEBSIGBNT. 

(O)  Mode  of  Aaaessaieat  Im  Qeaer»I. 

§  829.  Uuder  Revenue  Law,  |  28  (Cobbey's 
Ann.  St.  1907,  i  10,927),  it  is  the  daty  of  an 
owner  of  capital  stoclc  of  a  corporation  to  list 
the  same  for  taxation  "when  the  capital  stock 
of  such  company  is  not  assessed  in  this  state." 
— Breasler  v.  Wayne  County  (Neb.)  23. 

(D)  Mode  of  Aasessment  of  Corporate 
Btoeic,  PropertTi  or  Reeelpto. 

I  367.  Certain  corporation  held'  not  an  in- 
vestment company  within  Revenue  Law,  I  56 
(Cobbey's  Ann.  St.  1907,  i  10,955),  requiring 
such  a  company  to  list  its  capital  stock  for 
taxation.— Breasler  t.  Wayne  Connty  (Neb.) 
23. 

(B)  Aaaeaaaaent  Rolls  or  Books. 

i  420.  A  snfiScient  description  of  the  prop- 
erty intended  to  tie  taxed  is  essential  to  a  valid 
tax.— Hodgson  ▼.  State  Finance  Co.  (N.  D.)  33S. 

vn.  FATMENT  AiTO  xtEFinmiiro  OB 

REOOVERT  OF  TAX  FAID. 

Pavment  of  taxes,  rights  and  liabilities  of  par- 
ties to  mortgage,  see  Mortgages,  |  200. 

{  542.  An  illegal  personal  proper^  tax,  paid 
nnder  protest,  may  be  recovend  Dack. — (Chicago 
&  N.  W.  Uy.  Co.  ▼.  Rolfson  (&,  D.)  S43. 

VUL   OOIXECTION     AND     ENFOBCE- 

MENT  AGAINST  FEBSONS  OB 

FEBSONAI.  FBOFEBTT. 

(A)  Collectors    mnd    Proeeedlncs    for    Col- 
leotloB  in  Oeneral. 

(  549.  Under  Sess.  Laws  1890,  p.  293,  c.  134. 
Gomp.  Laws,  {  1417  (carried  into  the  Revised 
Political  Code  as  section  1836),  and  Rev  Pol. 
Code,  §  1266  (passed  as  part  of  Sess.  Laws 
1800,  p.  112,  c.  87),  held  that  a  county  treasurer 
was  entitled  to  retain  but  1  per  cent,  of  city 
taxes  as  his  fee  for  collecting  the  same. — City 
of  (3enter\JHe  v.  Turner  County  (S.  D.)  350. 

(B)  SammarT'  Remedies  and  Actions. 

{  576.  A  judgment  is  intangible  property, 
not  subject  to  distress  proceedings  to  collect 
taxes  against  the  judgment  creditor. — Acme 
Harvesting  Mach.  Co.  v.  Hinkley  (S.  D.)  482. 

f  576.  Distress  for  the  collection  of  per- 
sonal taxes  is  not  a  judicial  process,  and  is 
only  available  for  the  seizure  of  tangible  prop- 
erty that  can  be  taken  and  sold.— Acme  Har- 
vesting Mach.  Co.  ▼.  Hinkley  (S.  D.)  482. 

i  684.  Except  as  provided  by  Laws  1909,  p. 
308,  c.  209,  an  action  will  not  lie  to  recover 
personal  taxes  which  are  collectible  only  by  dis- 
tress and  sale,  under  Rev.  Pol.  t  2162. — Acme 
Harvesting  Mach.  Co.  v.  Hinkley  (S.  D.)  4b::. 

(C)  Remedies  for  'Wroagtul  Elnforceasent. 

Mandamus  to  compel  cancellation  of  judgment, 

see  Mandamus,  §  3. 
Persons  concluded  by  judgment  in  action  to  set 

aside  taxes,  see  Judgment,  t  682. 

{  60S.  Injunction  held  not  to  lie  to  restrain 
the  collection  of  an  illegal  personal  property 
tax,  in  tlie  absence  of  a  showing  of  the  inade- 
quacy of  the  remedy  at  law.— Chicago  &  N.  W. 
Uy.  Co.  V.  Rolfson  (S.  D.)  343. 

IX.   SAI.E  OF  LANS  FOB  NOITPAT- 
KENT   OF   TAX. 

Right  of  agent  charged  with  duty  of  paying 
taxes  to  acquire  tax  certificate,  see  Principal 
and  Agent,  {  69. 

ii  686.  A  tax  sale  certificate,  barred  by  Laws 
V.xn.  p.  220,  c.  la"),  held  not  a  lien  on  the  land. 
—  lIodRfon  V.  State  Finance  Co.  (N.  D.)  336. 


X.  BEDEMPTION  FBOM  TAX  BAXE. 

I  704.  A  notice  to  redeem  from  tax  sales 
held  not  objectionable  for  failure  to  disclose 
more  specifically  the  descriptions  to  which  the 
years  for  which  taxes  had  not  been  paid  applied. 
— Gogebic  Lumlier  Co.  t,  Moore  (Mich.)  128. 

i  705.  The  requirements  of  a  statute  relating 
to  service  of  notice  of  expiration  of  right  of 
redemption  from  a  tax  sale  must  be  fully  met 
— ^Lindsey  v.  Booga  (Iowa)  810. 

I  706.  A  return  of  service  of  a  tax  sale  re- 
demption notice  held  to  show  that  the  register- 
ed letter  containing  the  same  had  been  address- 
ed to  the  record  owner,  and  came  into  the 
hands  of  the  real  owner,  who  was  misnamed 
of  record.— Gogebic  Lumber  Co.  y.  Moore 
(Mich.)  12& 

I  705.  Service  of  notice  of  the  time  for  re- 
demption from  a  tax  sale  on  the  holder  of  a  vmd 
tax  deed  held  not  effectual  for  any  purpose.— 
Hodgson  v.  SUte  Finance  Co.  (N.  D.)  336. 

S  706.  Method  of  service  of  notice  of  time 
for  redemption  from  a  tax  sale  declared. — Hodg- 
son T.  State  Finance  Go.  (N.  D.)  336. 

S  707.  Under  Code,  f  1441,  an  affidavit  of 
service  of  a  notice  of  expiration  of  the  right 
of  redemption  from  a  tax  sale  held  sufficient. — 
Lindsey  v.  Booge  (Iowa)  810. 

i  707.  A  statement  in  a  sheriff's  return  that 
he  served  a  notice  on  M.  "of  the  city  of  Mar^ 
quette,  Marquette  coun^,  Mich.,"  held  to  jus- 
tify an  inference  that  M.  resided  in  Marquette 
county. — Gogebic  Lumber  Co.  v.  Moore  (MidL) 
128. 

I  707.  A  sheriff's  return  of  service  of  a  no- 
tice to  redeem  from  a  tax  sale  is  evidence  of 
the  fact  of  service,  though  it  may  be  impeached 
by  proof  that  service  was  not  made  as  alleged. 
--Gogebic  Lumber  Co.  t.  Moore  (Mich.)  128. 

I  707.  A  sheriff's  return  of  service  of  a  tax 
sale  redemption  notice  by  registered  letter,  ad- 
dressed to  E.,  secretary  of  the  C.  land  com- 
pany "Mil.,  Wis.,"  sufficiently  indicated  that 
the  abbreviations  stood  for  Milwaukee,  Wiscon- 
sin.—Gogebic  Lumber  Co.  v.  Moore  (MichJ  128. 

I  709.  Redemption  from  a  void  tax  fore- 
closure should  be  allowed  upon  payment  of 
certain  items.— Humphrey  ▼.  Hays  (Neb.)  887. 

XI.  TAX  TITI.es. 

Conclusiveness  of  judgment  as  to  title  in  writ 
of  assistance  by  purchaser,  see  Judgment,  | 
720. 

(A)  Tiae  and  Rlarhts  of  Poreluuer  at  Tax 
Sale. 

I  727.  Laws  1905,  p.  407,  c.  271,  requiring 
the  record  of  tax  titles  to  be  made  within  six 
years  from  the  date  of  the  sale,  does  not  apply 
to  titles  which  have  been  fully  perfected  before 
the  passage  of  such  act— Slocum  v.  McLaren 
(Minn.)  871. 

S  739.  It  was  error  to  allow,  as  a  credit  on 
the  amount  required  to  redeem  from  tax  sales 
by  a  purchaser  at  a  mortgage  foreclosure,  the 
entire  rent  collected  by  the  tax  deed  holder  and 
her  predecessor.— Hodgson  v.  State  Finance  Co. 
(N.  D.)  336. 

(B)  Tax  Deeds. 

Fraudulent  representations  as  to  effect  of  tax 
deed,  see  Fraud,  §  10. 

t  765.  In  view  of  Rev.  Pol.  CoAe,  i  2218, 
and  Rev.  Civ.  Code,  \i  939,  1243,  the  ahoence 
of  a  seal  from  a  tax  deed  held  not  to  aff«ct  its 
validity.— Northwestern  Mortg.  Trust  Co.  v. 
Levtzow  (S.  D.)  600. 


Topics,  divisions,  &  section  (i)  NUMBERS  In  thU  Inaex,  *  DsOk  *  Am«r.  DlfS.  *  Sqrarter  Indexes  ssrM 

Digitized  by  VjOOQ  l€ 


INDBX-DIGBST. 


1239 


(O)  Aetlona  to  Conflrm  or  Trr  Title. 

Interruption  of  possession  under  tax  deed  as 
affectine  limitations,  see  Adverse  Possession, 
J  47. 

i  799.  A  tax  foreclosure  npon  service  bj 
poblicatiou  where  the  owner  is  a  resident  upon 
whom  personal  service  may  be  had  held  void. — 
Hnmphrey  v.  Hays  (Neb.)  987. 

I  805.  An  action  by  the  owner  to  qniet  title 
to  land  sold  at  a  tax  sale  held  barred  by  the 
three-year  limitations  under  Rev.  Pol.  Code,  | 
2214.— Northwestern  Mortg.  Trust  Co.  t.  Levt- 
zow  (S.  D.)  600. 

(  809.  In  an  action  to  qniet  title  against  a 
void  tax  foreclosure,  certain  offer  held  a  suffi- 
cient offer  to  do  equity  and  tender  of  any  taxes 
paid.— Humphrey  v.   Hays   (Neb.)   987. 

(D)  Rlarlits  and  Remedlea  of  Pvrehasor  of 
Invalid  Title. 

i  832.  Neither  St.  1898,  I  1210h.  nor  a 
mandate  of  the  Supreme  Court,  ?ield  to  re- 
quire plaintiff  suing  to  set  aside  tax  titles  to 
reimburse  defendant  for  a^  payment  of  taxes 
made  after  tlie  commencement  of  the  suit. — 
Roach  V.  Sanborn  Land  Co.  (Wis.)  1020. 

TELEGRAPHS  AND  TELEPHONES. 

Injuries  from  electricity,  see  Electricity. 

I.  ESTABUSHBfXiNT,  OONSTRUOTION, 
Aim  MAINTENANOE. 

8  10.  A  telephone  company  held  not  enti- 
tled to  complain  because  the  mayor  of  the 
city,  charged  with  the  duty  of  enforcing  the 
laws  and  ordinances  (St.  1898,  f  925-38),  car- 
ried out  the  common  council's  directions  in 
having  it  removed. — Monroe  Telephone  Co.  t. 
Ludlow  (Wis.)  1030. 

XZ.  BEOinJiTlON    AlTD    OPERATION. 

Certainty  as  to  time  for  termination  of  con- 
tract for  telephone  service,  see  Contracts,  {  9. 

Proof  of  agency  of  person  served  with  process 
in  action  for  delay  of  delivery  of  telegram,  see 
Principal  and  Agent,  §  22. 

Questions  for  jury  as  to  authority  of  sendee  of 
telegram  as  agent  of  another,  see  Principal 
and  Agent,  |  124. 

$  82.  A  contract  binding  a  telephone  com- 
pany operating  in  a  city  to  maintain  without 
ctiarge  telephones  in  the  public  otBces  of  the 
city  IS  not  mvalid  as  contrary  to  public  policy, 
for  the  advantage  is  to  the  public. — City-  of 
Superior  v.  Douglas  County  Telephone  Co. 
(Wis.)  1023. 

i  32.  A  city  and  a  telephone  company  are 
competent  to  contract  for  telephone  service  in 
the  city  offices  in  the  city  building  and  in  the 

£uhlic    library    building.— City    of    Superior   y. 
Douglas  County  Telephone  Co.  (Wis.)  1023. 

§  32.  A  contract  binding  a  telephone  com- 
pany to  maintain  telephones  in  the  public  of- 
fices of  a  city  without  cost  to  the  city  held 
not  invalid  as  creating  unjust  discrimination. — 
City  of  Superior  v.  Douglas  County  Telephone 
Co.  (Wis.)  1023. 

i  32.  The  right  of  a  telephone  company  op- 
erating in  a  city  to  give  its  general  customers 
facilities  for  telephone  communication  with  the 
public  offices  of  the  city  held  a  legitimate  basis 
for  a  contract  between  the  company  and  the 
city  for  such  service. — City  of  Superior  v. 
Douglas  County  Telephone  Co.  (Wis.)  1023. 

i  32.  A  valid  contract  between  a  telephone 
company  operating  in  a  city  and  the  city  with 
resiiect  to  sei-vii-e  held  made. — City  of  Superior 
V.  Douglas  County  Telephone  Co.   (Wis.)  1023. 


{  54.  Under  Code,  {  2104,  a  notice  to  de- 
fendant telegraph  company  of  a  claim  for  dam- 
ages, through  failure  to  deliver  message,  held 
served  in  time.— Markiey  v.  Western  Union 
Telegraph  Co.  (Iowa)  136. 

1  54.  In  an  action  against  a  telegraph  com- 
pany for  delay  in  delivery  of  a  message,  a  pro- 
vision of  the  contract  calling  for  presentation 
of  plaintilTs  claim  within  a  certain  time  held 
not  controlling;  the  contract,  not  being  intro- 
duced in  evidence. — Markiey  y.  Western  Union 
Telegraph  Co.  (Iowa)  136. 

{  64.  Where  plaintiff  brought  his  action  for 
delay  in  delivery  of  a  message  in  tort,  and  not 
on  contract,  a  certain  provision  of  the  con- 
tract fteW  not  controlling. — Markiey  v.  Western 
Union  Telegraph  Co.  (Iowa)  136. 

S  54.  Under  Code,  i|  2163  and  2164.  a  tele- 
graph company  held  not  authorized  to  require 
presentation  of  a  claim  for  damages  through 
failure  to  promptly  deliver  a  message  to  be  pre- 
sented within  60  days  after  the  message  is  ffled. 
—Markiey  v.  Western  Union  Telegraph  Co. 
(Iowa)  136. 

$  54.  Under  Code,  $  2164,  a  notice  to  de- 
fendant telegraph  company  of  a  claim  for  dam- 
ages through  failure  to  deliver  message  held 
served  in  time.— Markiey  v.  Western  Union 
Telegraph  Co.  (Iowa)  136. 

J  I  67.  In  an  action  for  failure  to  deliver  a 
egram,  damages  for  profits  which  plaintiff 
would  have  made  had  ne  closed  a  proposed 
contract  were  not  too  speculative  to  be  recov- 
ered.—Stnmm  V.  Western  Union  Telegraph  Co. 
(Wis.)  1032.  - 

S  70.  In  an  action  for  failure  to  deliver  tel- 
egram preventing  plaintiff  from  obtainiug  em- 
ployment, the  measure  of  damages  is  the  rea- 
sonable value  of  the  contract  to  plaintiff,  if  the 
evidence  affords  a  fair  basis  for  determining 
its  value.- Stumm  v.  Western  Union  Telegraph 
Co.  (Wis.)  1032. 

TENANCY  IN  COMMON. 

H.  MTTTTTAI.    RIOHTS.    DUTIES,    AND 
LIABILITIES  OF  CO-TElTAiriS. 

S  29.  At  common  law,  one  tenant  in  com- 
mon could  not  enforce  contribution  from  a  co- 
tenant  for  expenses  for  repairs,  as  distin- 
guished from  improvements,  incurred  without 
such  co-tenant's  consent— Cooper  v.  Brown 
(Iowa)  144. 

i  29.  Certain  evidence  held  insufficient  to 
show  a  request  by  one  co-tenant  of  another 
that  the  latter  join  in  making  repairs  to  the 
common  property,  or  notice  that,  on  her  fail- 
ure so  to  do.  her  co-tenants  would  make  them.— 
Cooper  V.  Brown  (Iowa)  144. 

{  29.    One  tenant  in  common  may  not  alone 

proceed  to  repair  or  improve  the  common  prop- 
erty, and  have  the  benefit  of  the  statutory 
mechanic's  lien  therefor. — Cooper  v.  Brown 
(Iowa)  144. 

{  30.    It  is  not  more  the  duty  of  one  tenant 

in  common  than  it  is  of  another  to  protect  the 
common  estate  against  liens  and  incumbrances. 
— Cooper  V.  Brown  (Iowa)  144. 

i  30.    A  tenant  in  common  cannot  oust  his 

co-tenants  by  acquiring  a  tax  title  to  the  prop- 
erty and  his  payment  of  any  lien  thereon  op- 
erates for  the  benefit  of  all,  though  on  parti- 
tion his  claim  for  reimbursement  will  ordinarily 
be  recognized. — Cooper  v.  Brown  (Iowa)   144. 

I  84.  A  tenant  in  common  is  not  estopped  to 
deny  liability  for  repairs  by  failure  to  object 
thereto,  where  his  co-tenant  proceeds  to  make 
them  without  notice  on  him  to  unite  therein. — 
Cooper  V.  Brown  (Iowa)  144. 


ror  eases  In  Dee.  Dig.  &  Amer.  Digs.  1907  to  data  *  Indaxei  see  same  topic  *  section  (i)  NUMBER 

Digitized  by  VjOOQ  l€ 


1240 


122  NORTHWESTERN  REPORTER. 


i  36.  The  remedy  at  common  law  against 
I  co-tenant  refusing  to  unite  in  making  neces- 
lary  repairs  was  by  writ  de  reparatione  faci- 
enda.— Cooper  v.  Brown  (Iowa)  144. 

TENDER. 

Of  mortgage  debt,  see  Mortgages,  I  301. 

Of  taxes  paid  in  action  to  quiet  title  against 

void  tax  foreclosure,  see  Taxation,  g  800. 
Tender  of  payment  of  indebtedness  secured  by 

chattel  mortgage,   see   Chattel   Mortgages,   { 

237. 

I  18.  Where  a  creditor  prevents  payment  by 
wrongfully  refusing  to  accept  the  amount  due 
when  tendered,  the  debtor  is  entitled  to  a  rea- 
sonable opportunity  to  comply  with  a  subse- 
quent demand.— Security  State  Bank  of  Wash- 
ington T.  Waterloo  Lodge  No.  102,  A.  F.  &  A.  M. 
(Neb.)  992. 

TERMS. 

Of  office,  see  Officers,  {§  62,  53. 
Of  sale  at  auction,  see  Auctions  and  Auction- 
eers, I  7. 


TESTAMENT. 


See  Wills. 


TESTAMENTARY  CAPACITY. 

See  Wills,  H  31,  50. 

TESTAMENTARY  POWERS. 

Construction  and  execution,  see  Powers,  {{  36, 
Creation,  see  WUls,  |g  6S4r-e94. 

THEFT. 

See  Larceny. 

TIMBER. 

See  Logs  and  Logging. 

TIME. 

For  varticular  acta  iii  or  incidental  to  juiicial 

proceeding*. 
Application  for  new  trial,  see  New  Trial,  |  116. 
Filing  appeal  record,  see  Appeal  and  Error,  i 

621. 
For  taking  appeal  or  suing  out  writ  of  error, 

see  Appeal  and  Error,  §f  337-357. 
Intervention,  see  Parties,  |  42. 

For  particular  acti  not  iudicial. 
Demand  of  payment  of  certificate  of  deposit, 

see  Bills  and  Notes,  {  404. 
Redemption  from  mortgage,  see  Mortgages,  i 

599. 
Rescission  of  sale,  see  Sales,  g  128. 

{  8.  The  day  begins  at  12  o'clock  midnight, 
and  the  law  does  not  recognize  fractions  of  the 
day.— State  t.  Mcintosh  (Minn.)  462. 

i  10.  Under  the  statute  relating  to  notice  of 
additional  witnesses,  a  notice  held  given  in  time, 
under  Code  1897,  {  48,  par.  23.— State  t.  Clark 
(Iowa)  957. 

(  11.  The  day  begins  at  12  o'clock  midnight, 
and  the  law  does  not  recognize  fractions  of  the 
day.— State  t.  Mcintosh  (Minn.)  462. 

TITLE. 

Color  of  title,  see  Adverse  Possession. 
Registration  of  land  title,  see  Records,  {  9. 
Removal  of  cloud,   see  Quieting  Title. 
Retention    of    apparent    title    by    grantor,    see 

Fraudulent  Conveyances,  g  147. 
Tax  titles,  see  Taxation,  §§  727-832. 
Title  of  lesKor,  see  Landlord  and  Tenant,  f  CI. 


Particular  matter*  alfectinff  Hfle, 
See  Eminent  Domain,  {  323;  Replevin,  {  & 

Particular  tpecie*  of  property  or  right*. 
Office,  see  Officers,  i  77. 

Title  neoe««ary  to  maint<Um  partioular  aotion*. 

See  ESJectment,  i  9. 

On  bill  or  note,  see  Bills  and  Notes,  f  443. 

Title*  of  particular  act*  or  proceeding*. 

Contempt  proceedings  for  violation  of  injunc- 
tion against  sale  of  liquors,  see  Intoxicating 
Liquors,  {  279. 

Statutes,  see   SUtutes,  |g    109-121. 

TOOLS. 

LdaUlity  of  employer  for  defects,  aee  Master 
and  Servant,  U  101-124,  235. 

TORTS. 

Causing  death,  see  X)eath. 

Liaiiiitie*  of  particular  ela**e*  of  perion*. 

See  E!zecutors  and  Administrators,  |  119 ;  Mu- 
nicipal   Corporations,    gg    747-835. 

Agents,  see  Principal  and  Agent,  §f  150,  159. 

Agents  or  servants  of  chuitable  institution, 
see  Charities,  tg  45,  48. 

Employes,  see  Master  and  Servant,  J  302. 

Particular  tort*. 

See  Assault  and  Battery,  g  42;    CJonspiracy,  i 
21;    False  Imprisonment,  ||  7-36;    Forcible  ' 
Entry  and  Detainer,  g  30;  Fraud ;   Libel  and 
Slander;    Malicious  Prosecution;    Negligence; 
Trover  and  Conversion,  f  66. 

Civil  damages  from  sale  of  liquors,  lee  Intox- 
icating Liquors,  U  310-316. 

Remedie*  for  tort*. 
See  Trover  and  Conversion. 

TOWNS. 

See  Counties ;  Municipal  Corporations;  Schools 
and  School  Districts,  g|  62-159. 

n.  oovi:iuiM£KT  Ain>  offigehb. 

g  26.  Formal  notice  of  a. meeting  of  a  town 
IXHird  held  not  essential,  where  all  the  membeis 
are  present. — State  Bank  of  Bamum  t.  Town  of 
Goodland  (Minn.)  468. 

m.  PBOPEBTT,  COHTRAOTB,  ASU 
JAAXnATTEB. 

i  37.  Rev.  Laws  1905,  g  651,  held  to  author- 
ize the  purchase  by  a  town  board  of  a  safe  in 
which  to  preserve  the  town  books  and  files. — 
State  Bantc  of  Bamum  t.  Town  of  Goodland 
(Minn.)  468. 

IV.  FISOAT    MAHAOEMEHT,    PUBUO 

DEBT,  SECUBITIES,  AXD 
TAXATION. 

Mandamus  to  compel  payment  Of  warrant,  see 
Mandamus,  g  109. 

g  46.  If  the  existing  Indebtedness  of  a  town- 
ship equaled  or  exceeded  the  limitation  of  in- 
debtedness provided  by  Const,  art  13,  g  4, 
when  township  bonds  were  issned,  a  township 
or  its  officers  had  no  power  to  incur  further 
indebtedness,  and  the  bonds  were  void.— Dring 

V.  St.  Lawrence  Tp.  (8.  D.)  664. 

g  60.  A  township  treasurer  may  disburse 
funds  only  on  proper  warrants,  and  titie  by 
iudorsement  of  a  warrant  to  protect  the  treas- 
urer means  title  by  indorsement  of  the  payee. 
— UUman  v.  Sandell  (Mich.)  1076. 


Topics,  dlvUloDS,  *  secUon  ({)  NUMBERS  In  tUs  Index,  t  Dec.  *  Amer.  Digs.  *  Reporter  IndaxM  agrM 

Digitized  by  VjOOQ  IC 


INDBX-DIGEST. 


1241 


I  S2.  Holder  of  township  bonds  held  not 
entitled  to  recoyer  any  part  of  tlie  debt  rep- 
resented thereby  if  the  township  indebtedness 
equaled  or  exceeded  the  limitation  imposed  by 
Const,  art.  18,  §  4,  when  the  bonds  were  is- 
sued, but  if  the  indebtedness  did  not  then 
eqnal  such  limitation,  he  conld  recover  as  for 
money  had  and  received  up  to  the  extent  of 
such  limitation.— Dring  y.  St.  Lawrence  Tp. 
(S.  D.)  Wi. 

f  52.  Laws  1891,  p.  196,  c.  80,  authorized 
the  constrnction  of  township  artesian  wells  at 
public  expense  and  the  issuance  of  bonds  for 
that  purpose.— Dring  v.  St.  Lawrence  Tp.  (S. 
D.)  664. 

TRADE  UNIONS. 

Discrimination  in  favor  of  union  printers  in 
lettinar  mnnicipal  contracts,  see  Municipal  Cor- 
porations, {|  241,  1000. 

TRANSCRIPTS. 

Of  record  for  purpose  of  review,  see  Criminal 
Law,  8  1091. 

TRANSFERS. 

Of  causes  between  dockets,  see  Trial,  |  11. 

TREASURERS. 

Amendment  as  to  parties  iu  proceedings  to  com- 

gil    county   treasurer  to   deposit   funds,    see 
arties,  f  95. 
Validity   of   law   requiring   deposit   of   county 
funds  as  impairing  vested  rights  of  county 
treasurer,  see  Constitutional  Law,  {  102. 

TREES. 

Bee  Logs  and  Logging. 

TRESPASS. 

By  animals,  see  Animals,  {  92. 

Iiuuries  to  trespassers,  see  Railroads,  H  275- 

To  the  person,  see  Assault  and  Battery,  {  42; 
False  Imprisonment 

TRESPASS  TO  TRY  TITLL 

See  Ejectment. 

TRIAL 

See  Witnesses. 

Trial  de  novo  on  appeal,  see  Appeal  and  £>- 
tor,  I  895. 

Proceedings  incident  to  triaU. 
See  Continuance;   New  Trial;   Reference. 
Entry  of  judgment  after  trial  of  issues,  see 

Judgment,  H  224-253. 
Right  to  trial  by  jury,  see  Jury,  §§  17-34. 
Summoning  and  impaneling  jury,  see  Jury,  {  70. 

Trial  of  aotiont  hy  or  againit  particular  cUutet 

of  per*ont. 
See  Carriers,   8  320;    Master  and  Servant,  §{ 

285-296;   Railroads,  {  282;   Street  Railroads, 

{  117. 
Bank  depositor,  see  Banks  and  Banking,  f  154. 
Contractors  and  sureties  against  municipality, 

see  Municipal  Corporations,  {  374. 

Trial  of  particular  civil  actiont  or  proceedingt. 

See  Assault  and  Battery,  §  42;  Conspiracy.  S 
21;  Fraud,  §  65;  Libel  and  Slander,  §8  122, 
123;  Malicious  Prosecution,  81  71,  72;  Neg- 
ligence 88  136-139;  Specific  Performance,  8 
123;   Trover  and  Conversion,  8  66. 

Condemnation  proceedings,  see  Eminent  Do- 
main, 89  222,  223. 


Disputed  claims  against  estate  of  decedent,  see 
Executors  and  Administrators,  8  254. 

For  breach  of  warranty,  see  Sales,  8  ^5. 

For  injuries  caused  by  electricity,  see  Electric- 
ity, 8  19. 

For  injuries  from  defects  or  obstructions  in 
highway,  see  Highways,  8  214. 

For  injuries  from  defects  or  obstructions  in 
streets,  see  Municipal  Corporations,  8  821. 

For  injuries  from  negligent  use  of  street,  see 
Municipal  Corporations,  8  706. 

For  injuries  from  operation  of  street  railroad, 
see  Street  Railroads,  8  117. 

For  injuries  from  sale  of  liquors,  see  Intoxi- 
cating Liquors,  8  316. 

For  injuries  to  passenger,  see  Carriers,  8  320. 

For  injuries  to  persons  on  bridge,  see  Bridges, 
8  46. 

For  Injuries  to  servant,  see  Master  and  Serv- 
ant, 88  286-296. 

For  price  of  goods,  see  Sales,  8  863. 

For  wrongful  attachment,  see  Attachments,  8 
380. 

On  bill  or  note,  see  Bills  and  Notes,  8  637. 

Probate  proceedings,  see  Wills,  88  316-332. 

Suits  to  try  tax  titles,  see  Taxation,  88  799-809. 

To  recover  bank  deposit,  see  Banks  and  Bank- 
ing, 8  154. 

To  recover  property  retaken  after  exchange  for 
other  property,  see  Exchange  of  Property,  8 
13. 

Trial  of  criminal  proiecutiont. 
See  Assault  and  Battery,  88  96,  97;    Criminal 
Law,  88  633-883;  Embezzlement  8  48;  False 
Pretenses,  8  61;   Homicide,  8  818.    ' 

I.  HOTICE  OF  TBIAX.  AMD  PBEX.IMX- 
NABT  PROOEEOIHOB. 

Exclusion  or  inclusion  of  Sunday  in  computa- 
tion of  time  of  notice  of  additional  witnesses, 
see  Time,  8  10. 

XZ.  DOCKETS,  UBTB,  AXD  OAZ.EX- 
DABS. 

8  11.  An  action  on  a  note  by  the  payee 
against  the  maker  and  sureties  heU  an  action 
at  law,  rendering  it  proper  to  refuse  to  trans- 
fer it  to  the  equity  calendar. — Security  Sav. 
Bank  of  Wellman  v.  Smith  (Iowa)  826. 

m.   OOTTBSE  AMD  COMDVOT  OF 
TBIAI.  IM  OEMEBAIk 

8  29.  Examination  of  witness  by  the  judge, 
held  reversible  error,  as  showing  the  judge's 
opinion  on  the  question  of  credibility. — City  of 
Flint  T.  Stockdale's  Estate  (Mich.)  279. 

ZV.  RECEPTIOM   OF   EVIDEMOE. 

Review  of  discretionary  rulings,  see  Appeal  and 
Error,  8  970. 

(A)  iBtrodnetloB,  Offer,  and  Adntlaaloa  of 
Bvldenee  In  Oeneral. 

8  41.  The  exclusion  of  witnesses  from  the 
courtroom  during  trial  rests  in  the  discretion 
of  the  court— Harrison  v.   Green  (Mich.)  206. 

8  48.  Held,  that  an  offer  of  certain  evidence, 
unless  all  was  competent,  should  be  excluded. 
—Fitch  T.  Martin  (Neb.)  50. 

8  56.  A  question  which  was  excluded  when 
asked  by  plaintiff  was  properly  excluded  when 
afterward  asked  by  defenoant — Ward  v.  Cook 
(Mich.)  785. 

8  56.  It  is  not  error  to  exclude  evidence  of 
a  fact  not  disputed  and  shown  by  other  uncon- 
tradicted evidence.— Young  y.  Kinney  (Neb.) 
679. 

8  67.  The  court  did  not  err  in  limiting  the 
number  of  impeaching  witnesses  to  four  on  a 
side.— State  v.  Madison  (S.  D.)  647. 


For  cases  In  Dec.  Dig.  *  Amsr.  Digs.  U07  to  date  *  Indezai  le*  urn*  topic  *  section  (I)  NUMBER 

Digitized  by  LjOOQ  l€ 


1242 


122  NOBTHWESTEBN  RBPORTER. 


(B)  Order  of  Proof,  Rebnttml,  asd  Ro- 
openlnar  Caae. 

f  62.  The  admiasion  or  exclusion  of  evidenM 
not  ttrlctlr  In  rebuttal  rests  primarilr  in  tlie 
trial  court's  discretion.— Minnesota  &  Dakota 
Cattle  Co.  T.  CUcago  &  N.  W.  B7.  Co.  (Minn.) 
403. 

{  62.  Where  plaintiff  in  proring  the  rea- 
sonable market  ralae  of  gravel  per  load  of- 
fered evidence  of  the  comparatiTe  sice  of  the 
loads,  it  was  error  to  refuse  to  allow  defend- 
ant to  show  discrepancy  between  sizes  of 
loads  delirered  to  defendants  and  those  de- 
livered to  other  persons  for  the  same  price. — 
Monture  v.  Regling  (Wis.)  1129. 

S  63.  Evidence  mereljr  cumnlative  is  not 
strictly  in  rebuttal. — Minnesota  &  Dakota  Cat- 
tle Co.  V.  Chicago  &  N.  W.  Ry.  Co.  (Minn.)  493. 

{  63.  Held,  that  there  was  no  reversible  er- 
ror in  the  exercise  of  the  court's  discretion  in 
excluding  certain  evidence  in  rebuttal. — Min- 
nesota &  Dakota  Cattle  Co.  r.  Chicago  &  N. 
W.  Ry.  Co.  (Minn.)  *&3. 

i  67.  Objection  to  testimony  offered  in  re- 
buttal that  it  was  offered  after  plaintiff  had 
rested  held  without  merit — ^Tisdale  t.  Ennis 
(Iowa)  959. 

(O)  Objections,  Motions  to  Strike  Out,  and 
Xixceptiona. 

S  83.  An  objection  to  evidence  because  of  the 
insufficiency  in  law  of  the  answer  mnst  call 
the  court's  attention  to  the  fact  that  that  is  the 
eroond  of  objection.— Coad  v.  Schaap  (Iowa) 
900. 

i  105.  Where  testimony  was  admitted  with- 
out objection  or  exception,  it  was  proper  to  give 
an  instruction  pertinent  thereto. — Jackson  t. 
City  of  Grinnell  (Iowa)  911. 

V.  ABOTTMEITTS  AITO  CONDUOT  OF 

COUIfSEI.. 

S  107.  The  refnsal  to  exclude  an  attorney, 
appearing  in  the  case  after  the  jury  had  been 
sworn,  heJd  proper.— In  re  Winslow's  Will 
(Iowa)  971. 

{  114.  In  arguing  cases  to  a  jury,  some 
latitude  must  be  given  counsel,  and  where  the 
argument  is  honestly  made,  and  based  upon 
the  testimony,  the  deductions  drawn  by  counsel 
must  be  allowed  to  go  to  the  jury. — Shepard 
y.  Piatt  (Mich.)  539. 

f  121.  Under  Circuit  Court  Rule  7,  subd. 
"e,"  relating  to  admissions  in  the  notice  of  plea, 
held,  that  plaintiff  being  entitled  to  read  to  the 
jury  the  notice  of  a  special  plea  accompany- 
ing defendant's  plea  of  the  general  issue  could 
comment  thereon  in  argument. — ^Buckeye  Brew- 
ing Co.  T.  Eymer  (Mich.)  124. 

{  133.  A  statement  by  plaintiff's  counsel  in 
argument  held  not  error  in  view  of  the  court's 
instruction  on  objection. — Monaglian  t.  North- 
western Fuel  Co.  (Wis.)  1066. 

VI.  TAKIirO   CASE   OB   QXTESTION 

FROM  JTTRY. 

(A)  Questions  of  Law  or  of  Faet  In  Gen- 
eral. 

A$  to  particular  fact*,  U»ue»  or  tuhjecti. 
See   Adverse    Possession,    {    115;     Libel    and 

Slander,  i  123;   Malicious  Prosecution,  §  71. 
Acceptance  of  goods  sold,  see  Sales,  $  182. 
Assumption  of  risk  by  servant,  see  Master  and 

Servant,  {  288. 
Authority  of  agent,  see  Principal  and  Agent, 

i  124. 
Contributory  negligence  of  servant  injured,  see 

Master  and  Servant,  8  28!). 
XegliRence  of  master,  see  Master  and  Servant, 

§    2)5«. 

i'erformance  of  contract,  see  Contracts,  §  323. 


In  partioular  civO  aetiont  or  proceedingt. 
See  Assault  and  Battetr,  142:    Conspiracy,  i 
21;    Negligence,  {  136;    Trovw  and  Conrw 
sion,  f  66. 

By  contractors  and  sureties  against  munici- 
pality, see  Municipal  Corporations,  (  374. 

For  breach  of  warranty,  see  Sales,  (  445. 

For  injuries  caused  by  electricity,  see  ESee- 
tricity,   I  19. 

For  injuries  from  defects  or  obstructions  in 
street,  see  Municipal  Corporations,  |  82L 

For  injuries  from  negligent  use  of  street,  see 
Municipal  Corporations,  I  706w 

For  injuries  from  operation  of  railroad,  see 
Railroads,  |  282. 

For  injuries  from  operation  of  street  railroads, 
see  Street  Railroads,  |  117. 

For  injuries  from  sale  of  Uqnors,  see  Intoxi- 
cating Liquors,  f  S16L 

For  injuries  to  passenger,  see  Carriers,  (  320. 

For  injuries  to  person  on  bridge,  see  Bridges, 
I  46. 

For  injuries  to  servant,  see  Master  and  Serv- 
ant, if  286-289. 

For  price  of  goods,  see  Sales,  i  363. 

On  bill  or  note,  see  Bills  and  Notes,  |  637. 

Probate  proceedings,  see  Wills,  S{  316,  324. 

To  recover  bank  deposit,  see  Banks  and  Bank- 
ing, I  164. 

I  139.  Where  the  evidence  is  such  that  no 
verdict  for  plaintiff  can  be  returned  except 
one  based  upon  conjecture,  held  proper  to  direct 
a  verdict  for  defendant— Scberer  v.  Sdilaberg 
(N.  D.)   1000. 

{  139.  The  weight  and  credibility  of  testimo- 
ny is  for  the  jury.— Bates  v.  Chicago,  M.  &  St 
P.  Ry.  Co.  (Wis.)  745. 

{  140.  The  weight  and  credibility  of  testimo- 
ny is  for  the  jury.— Bates  v.  Chicago,  M.  &  St 
P.  Ry.  Co.  (Wis.)  746. 

I  142.  Where  different  minds  might  reason- 
ably draw  different  conclusions  from  the  evi- 
dence as  to  a  fact  in  issue,  the  jury,  ratlier 
tlian  the  court,  should  draw  the  inference. — 
Miller  v.  Sovereign  Camp  Woodmen  of  the 
World  (Wis.)  1126. 

I  143.  An  issue  raised  by  the  testimony  of 
two  witnesses  was  properly  submitted  to  the  ju- 
ry, though  their  testimony  was  not  in  harmony 
with  that  of  two  other  witnesses  in  the  case. 
— Delfi  T.  Dunshee  (Iowa)  236. 

I  143.  Where  the  evidence  made  a  disputed 
question  of  fact  a  jury  question,  the  direction  of 
a  verdict  was  properly  refused. — Massey  v.  Luce 
(Mich.)  614. 

f  143.  Where  the  testimony  on  an  issue  was 
in  conflict,  it  was  improper  for  the  court  to  di- 
rect a  verdict— Rnmsey  v.  Fox  (Micli.)  526. 

I  143.  Where  reasonable  minds  might  reach 
different  conclusions,  held  error  to  direct  a 
verdict— Tamoski  v.  Cudahy  Packing  C!o. 
(Neb.)  671. 

{  143.  Where,  in  an  action  on  l>onds  issued 
by  a  township  to  construct  artesian  wells,  the 
evidence  was  conflicting  as  to  whether  the 
township  indebtedness  then  exceeded  the  con- 
stitutional limitation,  it  was  error  to  direct  a 
verdict  for  either  party. — Driiig  v.  St  Law- 
rence TlD.  (S.  D.)  664. 

i  145.  Where  there  was  no  evidence  in  sup- 
port of  one  of  plaintiff's  causes  of  action  added 
by  amendment,  the  court  had  power  to  refuse 
to  submit  it  to  the  jury  and  to  strike  the  amend- 
ment—Graham V.  Chicago  &  N.  W.  Ry.  Co. 
(Iowa)  573. 

(D)  Dlreetlon  of  Terdlet. 

Review  as  dependent  on  objections  in  lowei 
court,  see  Appeal  and  Error,  §  212. 


Topic*,  dlvliions,  &  secUon  (i)  NUMBERS  in  this  Index,  A  Dae.  *  Am«r.  Digs.  *  Reporter  Index**  agr** 


Digitized  by  VjOOQ  l€ 


INDB2-DIGEST. 


1243 


I  168.  It  was  error  to  leave  to  the  Jnry  a 
question  not  supported  by  the  evidence.— Conley 
T.  Supreme  Court,  I.  O.  F.  (Mich.)  567. 

i  169.  A  verdict  is  properly  directed  tor  de- 
fendant, where  the  evidence,  with  all  infer- 
ences which  can  justifiably  be  drawn  therefrom, 
ia  insufBcient  to  support  a  verdict  for  plaintiff. 
— Watters  v.  Dancey  (S.  D.)  43a 

I  169.  Where  the  answer  admits  a  liability, 
a  judgment  will  not  be  directed  for  defendant 
— Monture  v.  Regling  (Wis.)  1129. 

S  177.  Where  both  parties  request  the  conrt 
to  direct  the  verdict,  the  right  to  trial  by  jury 
is  waived.— Dorsey  v.  Wellman  (Neb.)  9«9. 

}  178.  The  direction  of  a  verdict,  after  re- 
ceiving additional  evidence,  without  renewing 
the  motion  for  a  direction  made  before  such 
evidence  was  received,  was  at  least  irregular. 
— Dring  v.  St  Lawrence  Tp.  (S.  D.)  664. 

VH.  INBTBTTCTIONB  TO  JTJUY. 

Assignment  of  errors,  see  Appeal  and   Elrror, 

{  730. 
Harmless  error,  see  Appeal  and  Eirror,  §|  1064- 

106& 
Review  as  dependent  on   exceptions  in  lower 

court,  see  Appeal  and  Error,  |  263. 
Review  as   dependent   on   objections   in   lower 

court,  see  Appeal  and  Error,  §f  215,  216. 

At  to  particular  Utue»  or  tuhfeett. 
Contributory  negligence  of  servant,  see  Master 

and  Servant,  |  296. 
Measure  of  damages,  see  Damages,  f  216. 

In  particular  civU  actions  or  proceedings. 
See  Fraud,  {  65;   Malicious  Prosecution,  {  72; 

Negligence,  H  138,  139. 
Condemnation    proceedings,    see    Eminent    Do- 
main, {  222. 
For  assessment  of  damages,  see  Damages,  { 

216. 
For  breach  of  contract,  see  Contracts,  S  353. 
For  breach  of  warranty,  see  Sales,  %  446. 
For   injuries  from  defects,  or   obstructions   in 

highway,  see  Highways,  S  214. 
For  injuries  from  negligent  use  of  street,  see 

Municipal  Corporations,  f  706. 
For  injuries   from   operation   of  railroad,   see 

Railroads,  .|  282. 
For  injuries  to  person  on  bridge,  see  Bridges,  § 

4& 
For  injuries  to  servant,  see  Master  and  Serv- 

antTl  296. 
For  wrongful  attachment,  see  Attachment,   { 

380 
Probate  proceedings,  see  Wills,  If  329-332. 
To  recover  property  retaken  after  exchange  for 

other  property,  see  Exchange  of  Property,  % 

13. 

(A)  ProTlnee   of  Court  and  JuTV  In   Gen- 
eral. 

S  186.  In  an  action  for  failure  to  deliver  a 
telegram,  an  instruction  held  not  to  invade  the 
province  of  the  jury  by  suggesting  a  finding  on 
an  issue  in  the  case. — Stumm  v.  Western  Union 
Telegraph  Co.  (Wis.)  1032. 

S  191.  An  instruction  assuming  the  existence 
of  a  fact  in  dispute  is  properly  refused. — Baka- 
lars  V.  Continental  Casualty  Ca  (Wis.)  721. 

S  192.  An  instruction  held  warranted  by  the 
evidence.— Dalm  v.  Bryant  Paper  Co.  (Mich.) 
237. 

S  193.  In  a  case  wherein  it  was  nrj>ed  that 
the  judge  clearly  indicated  his  disbelief  m  plain- 
tiff's evidence,  and  that  it  was  impossible  for 
defendant's  witnesses  to  be  mistaken,  and  im- 
pressed on  the  jury  his  own  opinion  of  the  ev- 
idence, held  that,  while  the  charge  might  be  sub- 
ject to  criticism,  it  did  not  contain  prejudicial 
error  under  the  circumstances. — Harrison  v. 
Green  (Mich.)  205. 


I  194.  An  instmciion  in  an  action  by  a 
broker  to  recover  commissions  held  erroneous 
as  an  expression  of  opinion  by  the  court— 
Barendsen  v.  Wilder  (Mich.)  355. 

f  199.  In  an  action  to  recover  possession  of 
a  part  of  an  abandoned  river  bed  granted  plain- 
tiff hy^  the  state,  which  defendant  claims  was 
not  within  the  state  when  the  grant  was  made, 
an  instruction  held  not  objectionable  as  permit- 
ting the  jury  to  pass  upon  legal  questions,  nor 
to  determine  the  lx>undary  line  between  states. 
— Coulthard  v.  Mcintosh  (Iowa)  233. 

(O  Fornt,  Reanlsltea,  nnA  SaflIcl«neT> 

{  232.  An  instruction  as  to  argument  of 
counsel  held  not  erroneous— Dalm  v.  Bryant 
Paper  Co.  (Mich.)  257. 

{  244.  An  instruction  singling  out  certain 
testimony  and  stating  its  effect  is  properly  re- 
fused.—First  Nat  Bank  t.  Union  Trust  Co. 
(Mich.)  547. 

(D)  AppllcnblUtr   to   Plendlnara   and   Bvl- 
denoe. 

S  250.  Where  no  claim  was  made  for  dam- 
ages for  loss  of  time  and  there  was  no  evidence 
to  warrant  a  recovery  thereof,  an  instruction 
denying  the  right  to  recover  such  damages  was 
properly  refused.— Dralle  v.  Town  of  Reedsburg 
(Wis.)  771. 

{  251.  Refusal  to  submit  a  matter  not  in 
issue  by  the  pleadings,  in  view  of  an  admis- 
sion by  the  answer,  held  not  error  against  de- 
fendant, though  evidence  on  the  question  was 
improperly  admitted. — Miller  v.  Prussian  Nat 
Ins.  Co.  (Mich.)  1093. 

f  252.  In  an  action  for  malpractice  the  re- 
fusal to  give  an  instruction  as  to  the  liability 
of  defendant  held  erroneous  in  view  of  the  ev- 
idence.—Farrell  V.  Haae  (Mich.)  197. 

(B)  Reaneats  or  Prayers. 

{  255.  In  an  action  for  breach  of  contract 
by  which  plaintiff  was  to  conduct  a  branch 
depot  for  the  sale  of  defendant's  goods,  and  by 
fraudulent  representations  as  to  their  quality, 
etc.,  failure  to  specifically  instruct  that  the 
court  had  withdrawn  all  evidence  as  to  payment 
of  salary  and  expenses  was  not  reversible, 
where  defendant  did  not  request  a  charge  on  the 
question,  especially  where,  under  the  charge 
given,  the  jury  could  not  have  been  misled. — 
Watd  V.  Cook  (Mich.)  785. 

I  255.  Failure  to  instruct  is  not  reversible 
error,  where  no  request  is  made. — Stumm  v. 
Western  Union  Telegraph  Co.  (Wis.)  1032. 

{  253.  The  court's  failure  to  give  any  in- 
struction with  reference  to  one  of  the  questions 
submitted  for  a  special  verdict  was  not  error 
in  the  absence  of  a  request  therefor. — Monaghan 
V.  Northwestern  Fuel  Co.  (Wis.)  1066. 

I  256.  °An  instruction,  in  an  action  for  per- 
sonal injuries,  held  not  objectionable  as  restrict- 
ing the  allowance  of  damages  to  physical  pain, 
though  mental  suffering  was  demanded  and 
proved.— Hall  v.  Chicago,  B.  &  Q.  Ry.  Co. 
(Iowa)  894. 

$  256.  In  an  action  for  personal  injuries, 
there  was  no  error  in  omitting  specific  instruc- 
tions with  respect  to  the  present  worth  of  the 
loss  of  future  eaminRa,  where  such  instruc- 
tions were  not  requested.— Greenway  v.  Taylor 
County  (Iowa)  943. 

I  2.56.  Failure  of  the  court  to  especially  di- 
rect the  jury's  attention  to  a  matter  of  com- 
mon knowledge  is  not  error,  in  the  absence  of 
a  request  for  more  specific  instructions. — Green- 
way  V.  Taylor  County  (Iowa)  943. 

§  256.  Failure  to  limit  the  jury's  considera- 
tion of  "other  thiuRs"  in  a  determination  of 
an  issue  to  things  shown  by  the  evidence  held 


For  casM  In  Dec.  Dig.  *  Amer.  Digs.  VXSl  to  date  It  IndezM  tee  sane  topic  *  section  ({)  NUMBER 


Digitized  by  VjOOQ  l€ 


12111 


122  NORTHWESTERN  REPORTER. 


not  error  In  the  absence  of  a  regaeat.— Mona- 
ghan  T.  Northwestern  Fuel  Go.  (Wis.)  1066. 

I  260.  No  error  can  be  predicated  on  the  re- 
fusal of  instructions  which  were  included  in 
those  given,  so  far  as  they  contained  correct 
BtatemeAts  of  the  law.— Delfs  t.  Dnnshee  (Io- 
wa) 236. 

I  260.  It  is  not  error  to  refuse  a  requested 
charge  fully  covered  by  instructions  given. — 
Miles  T.  Penn  Mut  Life  Ins.  Co.  of  Philadel- 
phia (8.  D.)  249. 

I  260.  A  reqnested  charge  as  to  the  answers 
that  the  jui7  should  give  to  a  question  in  the 
special  verdict  held  covered  by  an  instruction 
l^ven.— Hendrickson  v.  Wisconsin  Cent.  Ry.  Co. 
(Wis.)  758. 

(F)  Objeetlona  and  Bxeeptlona. 

I  273.  The  court  is  not  Inclined  to  extend 
the  scope  of  the  statute  allowing  assignments 
of  error  to  the  charge  after  the  trial.— Ward 
▼.  Cook  (Mich.)  785. 

(O)  Oonatmctlon  and  Operation. 

f  29S.  A  charge  should  be  considered  as  a 
whole,  and  not  be  judged  by  paragraphs  sep- 
arated from  the  context— Rouse  v.  Michigan 
United  Rya.  Co.  (Mich.)  532. 

I  296.  To  ascertain  the  true  meaning  of  a 
charge,  it  must  be  considered  as  a  whole. — 
Pierce  v.  O.  H.  Bidwell  Thresher  Co.  (Mich.) 
628. 

S  295.  An  Instruction  which  alone  might  be 
erroneous  may  not  be  so  when  considered  with 
the  other  instructions.— Armstrong  t.  City  of 
Auburn  (Neb.)  43. 

I  296.  In  a  proceeding  to  probate  a  lost  will, 
instructions  as  to  weight  of  evidence  held  not 
cured  by  earlier  instructions.— City  of  Flint  v. 
Stockdale's  Estate  (Mich.)  279. 

vm.  gxj«itody;  consuot,  amd  de. 

IilBERATlOHS  OF  JTTBT. 

I  807.  It  is  within  the  discretion  of  the  tri- 
al court  to  allow  memorandums,  admissible  in 
evidence  to  prove  the  facts  recited  therein,  to 
be  taken  by  the  jury  to  their  room  during  their 
deliberations.— Farrell  v.  Haze  (Mich.)   197. 

I  307.  The  refusal  of  the  court  to  permit 
memorandums,  received  in  evidence,  to  be  tak- 
en to  the  jury  room  during  the  deliberations, 
and  the  refusal  to  permit  the  jury  to  be  recall- 
ed and  examine  the  memoranda  in  the  jury  box, 
held  not  an  abuse  of  discretion.— Fanrell  v. 
Haze  (Mich.)  197. 

i  314.  Remark  by  court  held  to  have  improp- 
erly coerced  the  jury  to  reach  an  agreement. — 
Mar  V.  Shew  Fan  Qui  (Minn.)  321. 

i  314.  Though  the  court  may  ur^e  upon  a 
disagreeing  jury  a  further  consideration  of  the 
case,  it  exceeds  proper  limits  in  bringing  about 
an  agreement  through  undue  o'r  coercive  meth- 
ods.—Mar  y.  Shew  Fan  Qui  (Minn.)  321. 

XX.  VERDICT. 

Deduction  from  general  verdict  on  granting 
new  trial  as  to  one  of  several  items,  see  New 
Trial,  §  9. 

Presumptions  on  appeal,  see  Appeal  and  Error, 
{{  927,  930,  931. 

(A)  General  Terdlot. 

{  329.  A  verdict  in  an  action  on  a  life  in- 
surance policy  finding  for  plaintiff  on  all  the 
issues,  and  assessing  her  damages  at  the  amount 
she  was  entitled  to  recover  in  case  the  defense 
of  suicide  was  made  out,  held  sufiSciently  cer- 
tain to  sustain  a  judgment.— Miles  v.  Penn 
Mut.  lAte  Ins.  Co.  of  Philadelphia  (S.  D.)  249. 


(B)  Bpeelal  IntervosntorlMi  and  nnUntem. 

t  349.  The  court  should  not  submit  incon- 
sistent causes  of  action  without  requiring  a 
special  verdict. — Graham  t.  CSucago  &  N.  W. 
Ry.  Co.  aowa)  673. 

i  360.  In  an  action  for  breach  of  contract 
and  false  representations,  special  Interrogatories 
submitted  held  to  call  for  findings  conclusive 
of  plaintiff's  right  to  recover  and  to  be  proper. 
—Ward  V.  Cook  (Mich.)  785. 

i  350.  Refusal  to  submit  question  for  special 
finding  held  not  error.— Vetter  v.  Sonthem  Wis- 
consin Ry.  Co.  (Wis.)  731. 

f  350.  In  an  action  against  a  railroad  for  in- 
juries to  a  passenger  In  an  alleged  unsafe  bag- 
gage room,  the  court  held  to  have  properly  re- 
fused to  submit,  as  part  of  the  special  verdict, 
the  question  whether  it  could  have  been  rea- 
sonably anticipated  that  the  accident  would 
have  occurred  at  the  time  and  place  in  question. 
— Batea  t.  Chicago,  M.  &  St  P.  Ry.  C!o.  (Wis.) 
745. 

I  860.  In  an  action  for  injuries  resulting 
from  a  horse  taking  fright  at  an  iron  pipe  in 
the  highway,  a  special  verdict  held  to  sufficient- 
ly submit  the  materially  controverted  issues.— 
Berg  V.  Town  of  Auburn  (Wis.)  1041. 

{  351.  Unless  a  special  verdict  was  request- 
ed, the  court  did  not  err  In  submitting  several 
items  of  counterclaim  for  a  single  verdict— 
J.  I.  Case  Threshing  Mach.  (3o.  v.  Fisher  ft 
Aney  (Iowa)  ."575. 

S  351.  Under  Laws  1907,  p.  571,  c.  846  (St 
1898,  S  2858m),  attorneys  failing  to  present  to 
the  trial  court  requesta  for  the  submission  of 
facts  in  a  special  verdict  thereby  waive  the 
right  to  have  the  jury  pass  on  such  particu- 
lar item  of  fact,  and  the  court,  upon  rendering 
judgment  adversely  to  them,  necessarily  re- 
solves that  fact  against  them.— Bates  t.  Chica- 
go, M.  ft  St  P.  Ry.  Co.  (Wis.)  748. 

I  351.  Where  a  special  verdict  submitted 
covered  the  issues  precisely,  the  court  was  jus- 
tified in  refusing  to  sulnnit  any  other  questions. 
— Monture  v.  RegUng  (Wis.)  1129. 

I  355.  A  special  interrogatory  held  not  sub- 
ject to  complaint  by  plaintiff.— Rowe  t.  Chi- 
cago, M.  ft  St  P.  R.  Co.  (Iowa)  929. 

I  862.  Where  the  jary  by  answers  to  certain 
questions  found  facts  showing  decedent's  contrib- 
utory negligence,  the  court  had  power  to 
change  their  answer  to  another  question  finding 
decedent  not  guilty  of  want  of  ordinary  care 
contributing  to  the  injury,  so  as  to  correspond 
with  the  facta  found.— Vetter  v.  Southern  Wis- 
consin Ry.  Co.  (Wis.)  731. 

X.  TRIAI.  BT  COURT. 

(B)  Flndlnara  of  Faet  and  Conelaalona 
of  Law. 

Presumptions  on  appeal,  see  Appeal  and  Er- 
ror, §  931. 

Review  as  dependent  on  exceptions  in  lower 
conrt,  see  Appeal  and  Error,  %  265. 

i  305.  Findings  of  fact  held  insufficient  to 
support  a  recovery  under  defendant's  counter- 
claim, based  upon  an  alleged  cause  of  action 
arising  upon  a  contract.— Western  Mfg.  Co.  v. 
Peabody  (N.  D.)  332. 

$  404.  General  finding  held  equivalent  to  a 
special  finding  that  the  contract  alleged  was 
never  made.— Bamom  t.  Jefferson  (Minn.)  453. 

XI.  WAIVER  AWP  OORRECmOlT  OF 
IRREOUIiARITIES  Ain>  ERRORS. 

In  condemnation  proceedings,  aee  Sbninent  Do- 
main, i  223. 


Topics.  dlvUloni.  «  lecllon  (i)  NUMBERS  In  thU  Index,  *  Dec.  *  Amer.  Digs.  *  RepoiUr  Indexts 

Digitized  by  LjOOQ  l€ 


INDBX-DIGBST. 


1245 


TRIAL  DE  NOVO. 

On  appeal  from  joatice's  court,  Be«  Jostices  of 
the  Peace,  {  173. 

TROVER  AND  CONVERSION. 

ConTorsiott  of  mortgaged  property,  see  Chattel 
Mortgages,  {  168. 

IX.  ACTIONS. 

(K)  Trial,  JnAmvxent,  aad  Review. 

I  66.  In  an  action  for  the  conversion,  evi- 
dence held  sufficient  to  require  the  submission  of 
the  case  to  the  jury. — Wood  worth  Elevator  Co. 
T.  Xheis  (Minn.)  310. 

TRUST  COMPANIES. 

See  Banks  and  Banking,  H  311,  314 

TRUST  DEEDS. 

See  Chattel  Mortgages;   Mortgagee. 

TRUSTS. 

Charitable  trosts,  see  Charities. 

Combinations  to  monopolize  trade,  see  Mo- 
nopolies, i  12. 

Conveyances  In  tmst  for  creditors,  see  Assign- 
ments for  Benefit  of  Creditors. 

Creation  by  will,  see  Wills,  Sf  684-694. 

I.  OBEATION,   EXISTENCE,  AND  VA- 
USITT. 

(O  Conatraetlve  Trnato. 

{  95.  Complainant  bank,  which,  in  reliance 
on  false  representations  in  a  report  as  to  the 
financial  condition  of  a  corporation,  loaned  it 
money,  taking  stock  as  collateral,  held  entitled 
to  have  the  transaction  rescinded  and  the  pro- 
ceeds of  the  loan  declared  a  trust  fund  in  the 
bands  of  the  party  receiving  it. — Dime  Sav. 
Bank  t.  Fletcher  (Mich.)  540. 

TUITION. 

Payment  of,  see  Schools  and  School  Districts, 
S  158. 

ULTRA  VIRES. 

Acts  and  contracts  of  corporations  in  general, 
see  Corporations,  i  382. 


UNDERTAKINGS. 


See  Bonds. 


UNDISCLOSED  AGENCY. 

See  Principal  and  Agent,  §  146. 

UNDUE  INFLUENCE. 

Procuring  making  of  will,  see  Wills,  §{  164:- 
166. 

UNDUE  PROMINENCE. 

Of  particular  matters  in  instructions,  see  Trial, 
I   244. 

UNITED  STATES. 

Courts,  see  Removal  of  Causes. 

Bxemptiou  from  assessments  for  public  im- 
provements,, see  Municipal  Corporations,  § 
434. 

Public  lands,  see  Public  Lands,  {{  58-116. 

UNLAWFUL  DETAINER. 

See  Forcible  Entry  and  Detainer. 


USE  AND  OCCUPATION. 

§  1.  Under  Rev.  Civ.  Code,  i  2313,  where 
one  occupies  real  property  wron^pCnlly,  and  not 
under  lease  or  agreement  to  pay  rent,  the  own- 
er may  waive  the  tort  and  recover  the  actual 
value  of  use  of  the  property  while  possessios 
is  withheld.— Baldwin  v.  Bohl  (S.  D.)  247. 

S  1.  Under  Rev.  Civ.  Code,  |  2313,  one  oc- 
cupying real  property  wrongfully,  and  not  un- 
der a  lease  or  agreement  to  pav  rent,  held 
bound  to  pay  the  real  owner  the  damage  caus- 
ed by  such  occupation. — Baldwin  v.  Bohl  (S.  D.) 
247. 

i  10.  Under  Rev.  Civ.  Code,  {  2313,  the  own- 
er of  real  property,  wrongfully  occupied  and 
cropped  by  defendant,  held  entitled  to  recover 
one-fourth  of  the  value  of  the  crop  as  rental 
for  the  use  of  the  premises. — Baldwin  t.  Bohl 
(S.  D.)  247. 

VACATION. 

Of  particular  act»,  inttrumentt,  or  proceeding). 

See  Judgment,  {  162. 

Account  of  personal  representative,  see  E!xecu- 

tors  and  Administrators,  i  600. 
Transfer  by  principal  to  agent,  see  Principal 

and  Agent,  {  69. 

Procee4inff»  during  vacation  of  eourti. 
Volnntary  dismissal  of  counterclaim,  see  Dis- 
missal and  Nonsuit,  {  32. 

VALUE. 

Relevancy  of  evidence  to  show,  see  Evidence, 
I  713. 

VARIANCE. 

Between  pleading  and  proof  in  civil  action,  see 
Pleading,  |  387. 

VENDOR  AND  PURCHASER. 

See  Excliange  of  Property;    Sales. 

Authority  of  broker  to  sell  land,  see  Brokers, 

i  14. 
Conclusiveness    of  judgment   as   against,    see 

Judgment,  {  682. 
Dower  rights  of  widow  of  vendee,  see  Dower, 

S14. 
Homestead   rights  of  -widow  and  children  of 

vendee,  see  Homestead,  i  151. 
Sales    by   or  to   personal    representatives,    see 

Executors  and  Administrators,  §  138. 
Specific  performance  of  contract,  see  Specific 

Performance. 
Purchasers  at  tax  sale,  see  Taxation,  |i  727, 

738,  832. 

I.  BEQXnSITES  AND  VAUDITT  OF 
CONTRACT. 

I  16.  Written  offer  to  sell  real  estate  held 
not  binding  until  unconditionally  accepted.— 
Sennett  v.  Melville  (Neb.)  851. 

§  17.  Written  offer  to  buy  real  estate  held 
not  binding  until  unconditionally  accepted.— Sen- 
nett T.  Melville  (Neb.)  851. 

II.~CONSTRUCTION    AND    OPERA- 
TION  OF  CONTRACT. 

{  58.  A  vendor's  covenant  to  convey  and  a 
vendee's  covenant  to  pay  the  price  held  depend- 
ent and  concurrent,  and  hence  the  vendor  could 
not  recover  damages  for  breach  of  contract 
without  tendering  a  conveyance  and  an  ab- 
stract showing  valid  title. — Ink  v.  Rohrig  (S. 
D.)  504. 

S  70.  One  agreeing  to  support  another  for 
life  in  consideration  of  receiving  real  estate  of 
the  latter  is  not  bound  to  pay  the  funeral  ex- 
penses of  the  latter,  but  her  estate,  if  any,  is 


For  eases  In  Dec.  Dig.  &  Amer.  Digs.  1907  to,  date  &  Indexes  see  same  topic  A  section  ({)  NUMBER 


Digitized  by  VjOOQ  l€ 


1246 


122  NORTHWESTERN  REPORTER. 


liable  therefor.— In  re  Brandes'  Eistate  (Iowa) 
954;    Hoyer  t.  Bnchholz,  Id. 

S  76.    A  rendor's  covenant  to  conv^  and  a 

vendee's  covenant  to  pay  the  price  held  de- 
pendent and  concurrent,  and  hence  the  vendor 
could  not  recover  damages  for  breach  of  con- 
tract without  tendering  a  conveyance  and  an 
abstract  showing  valid  title.— Ink  v.  Rohrig  (S. 
D.)  594. 

V.   BIGHTS  Aim  LIABUJTIEB   OF 
FABTIEB. 

Homestead   rights  of   widow   and   children  of 
vendee,  see  Homestead,  8  151. 

(B)  Aa  to  Tbird  Feraons  tn  Generad* 

Dower  rights  of  widow  of  vendee,  see  Dower, 
i  14. 

I  213.  A  judgment  debtor  Tteld  without  a  val- 
id claim  in  land  formerly  owned  by  him,  pre- 
cluding the  creditor  from  subjecting  the  land 
to  the  satisfaction  of  the  judgment— Shaw  v. 
Roberts  (Iowa)  932. 

(O)   Bona  Fide  Pnreliaaera. 

I  224.  A  grantee  In  a  quitclaim  deed  held 
precluded  from  asserting  any  right  which  could 
not  have  been  asserted  oy  his  grantor. — Foulke 
V.  Town  of  Agency  City  (Iowa)  823. 

I  231.  The  record  of  various  transfers,  a 
recital  of  incumbrances  in  one  of  them,  and  the 
circumstances,  held  to  constitute  notice  to  the 
assignee  of  the  purchaser  of  premises  of  a  mort- 
gage lien  thereon. — Fleming  v.  Fonts  (Minn.) 


VX.  BEBIEDIE8   OF  VEMDOB. 

(O  Action*   tor   Dmmasoa. 

I  323.  A  vendor's  covenant  to  convey  and  a 
vendee's  covenant  to  pay  the  price  held  depend- 
ent and  concurrent,  and  hence  the  vendor 
could  not  recover  damages  for  breach  of  con- 
tract without  tendering  a  conveyance  and  an 
abstract  showing  valid  title.— Ink  t.  Rohrig 
(S.  D.)  594. 

VH.  KKM  KIIIES  OF  PUBOHASEB. 

(B)  AetloBB  tor  Breaeb  of  Oontraet. 

f  843.  A  vendee  In  a  land  contract,  not 
signed  by  the  vendor's  wife,  for  the  sale  of  a 
homestead,  may  not  maintain  an  action  at  law 
for  damages  against  the  vendor  for  failure  to 
carry  out  his  contract— Lawrence  v.  Vinke- 
mnlder  (Mich.)  88. 

{  350.  In  an  action  for  breach  of  contract 
of  sale  of  real  estate,  evidence  held  insufficient 
to  show  the  amount  of  damages. — Flnnes  ▼. 
Selover,  Bates  &  Co.  (Minn.)  174. 

I  350.  Where  in  an  action  for  breach  of  a 
contract  of  sale  of  real  estate  the  purchaser 
seeks  to  recover  the  value  of  the  real  estate 
without  the  reservations  subject  to  which  sold, 
held  that  he  has  the  burden  of  proving  that 
the  reservations  did  not  decrease  its  value. — 
Finnea  v.  Selover,  Bates  Ic  Co.  (Minn.)  174. 

VENUE. 

Of  criminal  prosecutions,  see  Criminal  Law,  |8 

121-124. 
Of  criminal  prosecutions,  review  of  rulings,  see 

Crimioitl  Lew,  (  1150. 

VERDICT. 

Directing  verdict  in  civil  actions,  see  Trial,  H 

168-178. 
In  civil  actions,  see  Trial,  8S  329-362. 
In  criminal  prosecutions,  see  Criminal  Law,  M 

878,  883;   Homicide,  S  313. 


Review  on  appeal  or  writ  of  error,  see  Appeal 

and  Error,  |{  99&-1006. 
Setting  aside,  see  New  Trial,  i  68. 

VERIFICATION. 

Of  pleading,  see  Pleading,  {  291. 

Of  proof  of  service  of  notice,  see  Notice,  i  lOi 

VESTED  RIGHTS. 

Protection,  see  Constitntional  Law,  f  102. 

VETERINARY  SURGEONS. 

See  Physicians  and  Surgeons,  {  4. 

VICE  PRINCIPALS. 

See  Master  and  Servant,  f{  180-19a 

VILLAGES. 

See  Municipal  Corporations. 

VINDICTIVE  DAMAGES. 

See  Damages. 

VOTERS. 

See  Elections. 

WAGES. 

See  Master  and  Servant,  i  80. 

WAIVER. 

See  EstoppeL 

Of  ohieetiont  to  portieular  aett,  ^n^tnlme»tt, 
or  proceeding*. 

See  Pleading,  K  406-427. 

Competency  of  jurors,  see  Jury,  i  110. 

Error  waived  in  appiallate  court,  see  Appeal 
and  Error,  |  107& 

In  justices'  courts,  see  Justices  of  the  Peace, 
I  107.  _  . 

Verdict  in  condemnation  proceedings,  see  Emi- 
nent Domain,  I  223. 

Of  rightt  or  remediee. 

Exemption  of  homestead,  see  Homestead,  |  154. 

Forfeiture  of  insurance,  see  Insurance,  {|  376- 
895. 

Notice  and  proofs  of  loss  under  insurance  poli- 
cy, see  Insurance,  |S  565-558. 

Notice  and  proofs  of  loss  under  mutual  benefit 
insurance  certificate,   see   Insurance,   |   789. 

Performance  of  contract,  see  Contracts,  fi  806, 
816. 

WARDS. 

See  Ooardlan  and  Ward. 

WARRANT. 

Necessity  of,  in  proceedings  to  punish  for  con* 
tempt  by  violation  of  injunction  against  sale 
of  liquors,  see  Intoxicating  Liquors,  |  279. 

Search  warrant,  see  Searches  and  Beisoras. 

Town  warrants,  see  Towns,  |  60. 

WARRANTY. 

By  insured,  see  Insurance,  ||  283,  286,  886- 

865. 
On  sale  of  goods,  see  Sales,  H  261,  427-44& 

WATERS  AND  WATER  COURSES. 

See  Drains;    Navigable  Waters. 
Water  courses  in  cities,  see  Municipal  Corpo- 
raUons,  i8  830-835. 


Topics,  dlvUloiu.  ft  awiUoD  (J)  NUMBERS  la  tbU  Indaz,  *  D*e.  A  Amw.  Digs.  A  Raportar  ladazaa  agrw 

Digitized  by  VjOOQ  l€ 


INDBX-DIGBST. 


1247 


X.  AFPBOPBXATIOir    OF    BIGHTS    TK 
PUBUO  lAKDS. 

{  12.  The  failure  of  an  irrigator  to  file  a 
map  in  the  land  office  and  secure  the  approval 
of  the  Secretary  of  the  Interior  in  accordance 


with  Act  Cong.  March  8,  1891,  &  661,  I  18,  26 
Stat.  1101  (U.  S.  Ctomp.  St.  1901,  p.  1570),  and 
the  acts  supplementary  thereto,  does  not  de- 


stroy the  privileges  protected  bj  Rev.  St.  U. 
S.  if  2339,  2»iO  m.  S.  Comp.  St  1901,  p.  1437). 
— Basmussen  v.  Blnst  (Mebo  862. 

§  21.  Where  an  irrigation  system  !s  con- 
stmcted  with  the  consent  of  the  entryman  upon 
lands  of  the  United  States,  entered  as  a  home- 
stead, and  the  entryman  thereafter  relinquishes 
or  his  entry  is  canceled,  held,  that  a  subsequent 
entryman  takes  subject  to  a  right  of  way  for 
the  ditches  and  the  use  of  the  land  covered  by 
the  reservoir.— Rasmnssen  v.  Blust  (Neb.)  862. 

f  2L  Deed  by  entryman  before  entitled  to 
receiver's  final  receipt  giving  a  right  of  way 
over,  and  privilege  of  constructing  a  reservoir 
on,  his  lands,  held  not  to  vest  a  grantee  with 
any  right  against  a  subsequent  entry  under  the 
acts  of  Congress,  unless  the  grantee,  before  the 
last  entry,  is  using  such  improvements  under 
such  circumstances  as  to  entitle  him  to  pro^ 
tection  under  the  laws  of  the  state. — Basmussen 
V.  Blust  (Neb.)  862. 

I  21.  One  who  constructs  upon  vacant  pub- 
lic lands  of  the  United  States  an  irrigation  sys- 
tem, and  secures  the  approval  of  his  plan  and 
appropriation  of  water  by  the  state  irrigation 
board,  held  to  have  a  vested  right  within  Rev. 
St.  U.  8.  IS  2339,  2340  (U.  S.  Comp.  St.  1901, 
p.  1437).— Basmussen  v.  Blust  (Neb.)  862. 

IX.  NATTTRAI.  WATER  OOTIBSE8. 

(B)  Bed  and  Banks  of  Stream. 

Materiality   and   certain^   of  evidence   as   to 
avulsion,  see  Evidence^  i  144. 

IV.  HATTTRAIi  ImAEJBB  AKD  POMBS. 

i  108.  To  constitute  a  nonnavigable  lake  no 
particular  depth  is  essential,  nor  is  it  neces- 
sary that  the  water  cover  the  entire  bed  at  all 
seasons,  but  it  is  enough  If  the  body  of  the  wa- 
ter has  well-defined  banks,  filled  during  portions 
of  the  year.— State  v.  Jones  (Iowa)  241. 

i  108.  A  lake  coming  within  the  description 
of  bodies  of  water  to  be  meandered  pursuant  to 
the  rules  of  the  Interior  Department,  and  decid- 
ed by  the  Secretary  on  an  application  for  a  sur- 
vey of  its  bed  not  to  be  pnblic  lands,  and  to 
have  been  properly  meandered,  should  be  re- 
garded as  a  nonnavigable  lake.— State  t.  Jones 
(Iowa)  241. 

I  114  Unless  the  state  has  title  to  or  con- 
trol of  the  bed  of  a  lake  or  the  water  covering 
it,  it  cannot  enjoin  its  drainage  by  a  defendant 
having  no  title.— State  v.  Jones  (Iowa)  241. 

I  114.  The  state  held  to  have  such  an  inter- 
est in  the  lake  as  will  support  an  action  to  re- 
strain persons  without  title  from  draining  the 
waters  therefrom  or  otherwise  exercising  pro- 
prietary control  over  it.— State  v.  Jones  (Iowa) 
241. 

V.  SirBFAOE  WATERS. 

f  119.  A  municipality  collecting  surface  wa- 
ter, and  diverting  and  discharging  it  on  lower 
land  outside  of  its  limits,  cannot  escape  liability 
therefor  because  a  part  of  the  damage  to  such 
land  was  due  to  extraordinary  floods,  or  be- 
cause of  the  difficulty  in  determining  the  exact 
damage  caused  by  the  act  of  the  municipality. — 
Baker  t.  Incorporated  Town  of  Akron  (Iowa) 
926. 

t  119.  The  liability  of  a  municipality  col- 
lecting  surface   water   and   diverting   and   dis- 


charging It  on  lower  land  outside  of  Its  limits 
is  not  based  on  negligence  in  improving  its 
streets,  but  on  the  fact  that  it  collected  and 
discharged  surface  water  in  a  manner  differ- 
ent from  the  natural  flow  thereof. — Baker  v. 
Incorporated  Town  of  Akron  (Iowa)  926. 

I  119.  Tlie  owner  of  higher  land  has  no  right, 
even  in  the  nse  and  improvement  of  his  prop- 
erty, to  collect  the  surface  water  on  his  land 
into  a  drain  or  ditch,  increased  in  quantity  or 
in  a  manner  different  from  the  natural  flow, 
and  divert  it  on  the  lower  land  to  its  Injury. 
—Baker  ▼.  Incorporated  Town  of  Akron  (Iowa) 
926. 

I  119.  A  city  held  not  entitled  to  collect  and 
divert  and  discharge  water  on  land  outside  of 
its  limits. — Baker  v.  Incorporated  Town  of 
Akron  (Iowa)  926. 

i  119.  Rule  stated  as  to  the  right  of  an  own- 
er of  land  to 'improve  It  so  as  to  change  the 
accumulation  and  flow  of  surface  waters. — Peck 
7.  City  of  Baraboo  (Wis.)  740. 

I  126.  Evidence  held  to  show  that  the  right 
to  discharge  waters  from  one  tract  of  land  on 
another  through  an  artificial  drain  was  a  pre- 
scriptive right— Covell  V.  Bright  (Mich.)  101. 

Vm.  ARTIFICIAL  POITDS,  RESER- 
VOIRS, Airo  CHANirEI.S,  DAMS, 
AMD   FI.OWAGE. 

Abandonment  of  right  to  flow  lands  acquired  by 
exercise  of  power  of  eminent  domain,  see 
Eminent  Domain,  (  323. 

Capacity  of  corporation  to  acquire  water  power 
site,  see  Corporations,  {  434. 

Injuries  caused  by  dam  in  navigable  stream, 
see  Navigable  Waters,  |  39. 

Bight  to  organize  corporation  for  purchase  and 
development  of  water  i>ower,  see  Corpora- 
tions. I  14. 

Special  or  local  laws  relating  to  construction 
of  dams,  see  Statutes,  $  79. 

Subject  and  title  of  statute  relating  to  con- 
struction of  dams,  see  Statutes,  S  112l 

I  164.  A  right  of  flowage  of  upper  riparian 
lands  can  be  obtained  by  uninterrupted  adverse 
possession   and    user.— Gross   v.   Jones   (Neb.) 

i  164.  Where  a  right  of  fiowage  is  acquired 
by  condemnation,  held,  that  possession  and 
nse  alone  will  not  vest  any  oUier  right  than 
acquired  in  such  proceedings.— Gross  v.  Jones 
(Neb.)  681. 

I  164.  St  1896,  S  4221,  snbd.  3,  held  to 
apply  to  an  action  to  restrain  the  continuance 
of  a  nuisance  created  by  the  maintenance  of  a 
milldam. — Green  Bay  &  Mississippi  Canal  Co. 
V.  Telulah  Paper  Co.  (Wis.)  1062. 

f  164.  A  finding  held  to  include  all  the  ele- 
ments necessary  to  render  the  bar  created  by 
St.  1898.  {  4221,  subd.  8,  operative.— Green 
Bay  &  Mississippi  C!anal  Co.  v.  Telulah  Paper 
Co.  (Wis.)  1062. 

f  164.  Evidence  held  not  to  show  that  one 
maintaining  a  dam  across  a  navigable  stream 
flowing  land  of  another  did  not  maintain  the 
same  adversely. — Green  Bay  &  Mississippi  Can- 
al C3o.  T.  Telulah  Paper  Co.  (Wis.)  1062. 

i  177.  An  absolute  injunction  forbidding  the 
reconstruction  of  a  dam  on  the  ground  of 
abandonment  of  flowage  rights  was  error,  for 
the  injunction  should  continue  only  until  by 
condemnation  proceedings  and  payment  of 
damages  the  right  to  reconstruct  the  dam  hnd 
been  established. — Gross  v.   Jones  (Neb.)  681. 

(  179.  Proof  that  a  dam  across  a  navigable 
stream  setting  back  the  water  of  the  stream 
was  erected  in  a  year  without  showing  the  date 
thereof  did  not  show  that  adverse  holding  under 
the  dam  began  before  December  31st   of  that 


For  caiM  Is  Dm.  Dig.  *  Amer.  Digs.  U07  to  data  *  Indexes  see  lam*  topic  *  secUon  ({)  NUMBBR 

Digitized  by  VjOOQ  l€ 


1248 


122  NORTHWESTERN  REPORTER. 


?ear. — Green   Bay  &  Mississippi  Canal  Co.  T. 
•elulah  Paper  Co.  (Wis.)  IOCS. 

IX.  PtTBLIG  WATEB  81TFPI.T. 
(A)  Domcstlo  and  Mnnlelpsl  Purposes. 

Aatliority  of  town  to  issue  bonds  for  sinking 
of  artesian  wells,  see  Towns,  {  52. 

Liability  of  city  for  injuries  resulting  from  neg- 
ligent operation  of  waterworks,  see  Munici- 
pal Corporations,  S  747. 

(C2  Mlnlnvi  Meclianlcal,  and  Mannfaotiur- 
Inar  Purposes. 

Capacity  of  corporation  to  acquire  water  power 
site,  see  Corporations,  f  434. 

Bight  to  organize  corporation  for  purchase  and 
development  of  water  power,  see  Corpora- 
tions, I  14. 

WATERWORKS. 

Liability  of  city  for  injuries  resulting  from 
negligent  operation,  see  Municipal  Corpora- 
tions, {  747. 

WAYS. 

Private  rights  of  way,  see  Easements. 
Public  ways,  see  Highways;    Municipal  Corpo- 
rations, IS  70&-706,  762-821. 

WELLS. 

Authority  of  town  to  issue  bonds  for  sinking  of 
artesian  wells,  see  Towns,  8  52. 


WIDOWS. 


Dower,  see  Dower. 


WILLS. 


See  Descent  and  Distribution;  Executors  and 
Administrators. 

Bar  of  allowance  to  sunriTing  wife  by  proyi- 
sions  in  will,  see  Executors  and  Administra- 
tors. I  186. 

Charitable  bequests  and  devises,  see  Charities. 

Construction  and  execution  of  powers,  see  Pow- 
ers, U  35,  39. 

Construction  and  execution  of  trusts,  see  Trusts. 

Courts  of  probate,  see  Courts,  {  2OO14. 

n.  TESTAMENTABT  OAPACXTT. 

Opinion  evidence,  see  Evidence,  i  571. 

i  31.  It  requires  less  mental  capacity  to 
make  a  will  than  to  make  a  contract  or  a  deed, 
or  to  transact  business  generally. — ^In  re  Win- 
Blow's  Will  (Iowa)  971. 

{  31.  Testatrix,  having;  sufficient  mental  pow- 
er to  remember  the  particulars  of  her  business 
affairs  so  as  to  understand  their  obvious  rela- 
tions, etc.,  had  testamentary  capacity. — In  re 
Mullan's  Will  (Wis.)  723 ;  Fowler  v.  Crandall, 
Id. 

{  50.  Rule  stated  as  to  what  constitutes  tes- 
tamentary incapacity  resulting  from  mental 
unsoundness.— In  re  Winslows  Will  (Iowa) 
971. 

IV.  BEQinSITES    AND    VAI.ISITT. 

(A)  Nature  and  Bssenttals  of  Testamenta- 
ry Dispositions. 

{  82.  That  a  codicil  to  a  will  disinherits  a 
dauehter,  held  not  to  show  an  unrposonable  dis- 
position of  the  property,  where  the  daughter  will 
receive  about  as  much  as  the  other  children  of 
testatrix. — I'oppleton  v.  Poppleton  (Mich.)  272. 

(F)  Mistake,  Undue  Indnenoe,  and  Fraud. 

Opinion  evidence,   see  Kvidenoe,  $  471. 


S  164.  Evidence  of  facts  occurring  more  than 
six  years  prior  to  the  execution  of  a  will,  offer- 
ed on  the  issue  of  undue  influence,  held  not  ob- 
jectionable as  too  remote. — In  re  Loree's  Elstata 
(Mich.)  623;    Loree  t.  Vedder,  Id. 

i  164.  In  a  will  contest,  evidence  when  pro- 
ponent's alleged  undue  influence  l>efcan,  and 
showing  its  continuance,  up  to  and  including 
the  execution  of  the  will  and  codicil,  held  ad- 
missible.—In  re  Loree's  Estate  (Mich.)  623; 
Loree  v.  Vedder.  Id. 

S  164.  In  a  will  contest,  declarations  by  pro- 
ponent as  to  what  disposition  of  the  property 
would  be  made  by  testator  held  not  objection- 
able because  not  made  in  testator's  presence,  or 
because  proponent  had  not  been  connected  with 
the  case.- In  re  Loree's  Estate  (Mich.)  623; 
Loree  t.  Vedder,  Id. 

S  164.  In  a  will  contest,  conversations  and 
statements  by  proponent  are  admissible. — In  ro 
Loree's  Estate  (Mich.)  623;  Loree  v.  Vedder, 
Id. 

{  165.  In  a  will  c<Hitest  conversations  and 
statements  by  testator  are  admissible. — In  re 
Loree's  Estate  (Mich.)  623;  Loree  t.  Vedder, 
Id. 

i  166.  Evidence  held  to  support  a  finding 
that  testatrix  did  not  comprehend  the  nature 
of  the  instrument  Aigned  when  she  executed  a 
will.— Watson  t.  Clark  (Iowa)  913. 

i  166.  Facts  held  insnfScient  to  warrant 
Sndings  of  undue  infloence  in  the  execution  of 
a  will.— In  re  Mullan's  WiU  (Wis.)  723 ;  Fow- 
ler T.  Crandall,  Id. 

V.  PROBATE,   ESTABLISHMEirT, 
Airo   AHNULMENT. 

(A)  Probate    and    Revocation   in   Oeneral. 

i  219.  One  having  no  interest  in  an  estate 
cannot  petition  for  the  probate  of  the  wilL— 
Diem  T.  Drogmiller  (Mich.)  637. 

(H)  Bvldenoe. 

Competency  of  witnesses  see  Witnesses,  {  159. 
Opinion  evidence,  see  Evidence,  K  471,  571. 

{  288.  The  burden  of  proof  in  a  will  contest 
is  on  the  contestant. — In  re  Loree's  Estate 
(Mich.)  623 ;  Loree  v.  Vedder,  Id. 

i  293.  Where  an  attorney  testified  that  he 
drew  a  will  from  a  former  one,  only  making  two 
phanKes,  the  contents  of  the  former  will  were 
admissible.— In  re  Loree's  Estate  (Mich.)  623; 
Loree  v.  Vedder,  Id. 

{  302.  In  a  proceeding  to  probate  a  lost  will, 
an  instruction  as  to  weight  of  evidence  heU 
erroneous.— City  of  Flint  v.  Stockdale's  Estate 
(Mich.)  279. 

(I)  Hearlnar  or  Trial. 

Cure  of  erroneous  instructions  by  giving  other 
instructions,  see  Trial,  t  296. 

{  316.  Evidence  of  undue  influence  in  a  will 
contest  held  for  the  jury.— In  re  Loree's  Estate 
(Mich.)  623;    Loree  v.  Vedder,  Id. 

i  324.  In  a  proceeding  to  establish  an  alleged 
lost  will,  evidence  held  to  authorize  submission 
to  the  jury.— City  of  Flint  v.  Stockdale's  Es- 
tate (Mich.)  279. 

i  329.  In  a  will  contest  the  refusal  of  an 
instruction  held  not  error,  in  view  of  the  in- 
structions given.— In  re  Winslow's  Will  (Iowa) 
971. 

i  330.  In  proceedings  to  contest  the  probate 
of  a  will,  instructions  held  not  prejudicial  to 
contestant.— Poppleton  v.  Poppleton  (Mich.)  272. 

i  3.32.  In  proceedings  to  contest  the  probate 
of  a  will  for  undue  influence,  instructions  as  to 
tlie  interest  of  proponent  charged  with  having 


Topics,  dlvUlons,  &  section  C)  NUMBERS  in  this  Index,  ft  Dec.  ft  Amer.  Digs,  ft  Reporter  Inftaxee  agr** 


Digitized  by 


L-oogle 


INDEX-DIGEST. 


1249 


been  guilty  of  nndue  influence  held  prejudicial. 
— Poppleton  ▼.  Poppleton  (Mich.)  272. 

(K)  RevleTT. 

{  384.  In  a  will  contest,  tlie  refusal  of  an 
instruction  as  to  mental  capacity  held  not  prej- 
Ddicial.— In  re  Winslow'g  Will  (Iowa)  971. 

I  38C.  The  verdict  in  a  will  contest,  on  the 
ground  of  mental  incapacity  or  undue  influence, 
will  not  be  interfered  with  on  appeal,  unless 
shown  to  be  so  unsupported  by  the  testimony 
as  to  justify  the  inference  that  it  was  the  re- 
sult of  sympathy,  passion,  or  prejudice. — In  re 
Winslow's  AVill  (Iowa)  971. 

(M)  Operation  and  Effect. 

i  421.  A  district  court  on  appeal  from  the 
county  court  held  to  have  like  power  to  con- 
strue a  will,  but  that  in  such  proceeding  neither 
court  had  jurisdiction  to  revoke  in  part  the 
probate  of  a  will.— Iliggins  v.  Vandeveer  (Neb.) 

I  432.  A  judgment,  pursuant  to  a  stipulation 
between  the  legatees  and  heirs  at  law  admitting 
a  will  to  probate,  was  not  conclusive  upon  pro- 
ponent of  an  alleged  lost  will  whose  proceedmgs 
to  probate  the  same  were  pending  at  that  time. 
— Cfity  of  Flint  v.  Stockdale's  Estate  (Mich.) 
279. 

VI.  CONSTBUOTIOH. 

(A)  General  Rnles. 

S  470.  In  giving  effect  to  a  bequest,  the  en- 
tire will  should  Ke  examined  to  ascertain  tes- 
tator's intent.— Fauber  v.  Keim  (Neb.).  849. 

OB)  Nature  of  Batatea  and  Intereata  Cre- 
ated. 

I  600.  A  devise  to  a  person  generally  or  In- 
definitely with  power  of  disposition  carries  the 
fee.— Loosing  v.  Loosing  (Neb.)  707. 

I  601.  Subsequent  provisions  in  a  will  may 
define  the  estate  given,  and  show  that  what 
otherwise  would  be  a  fee  was  intended  for  a 
lesser  estate,  but,  if  the  entire  will  shows  that 
the  estate  first  granted  was  intended  for  a  fee, 
clauses  restricting  alienation  are  void. — Loosing 
».  Loosing  (Neb.)  707. 

S  608.  Will  construed,  and  held  to  pass  a 
life  estate  only  in  testator's  son  under  a  devise 
to  him,  remainder  to  his  heirs,  which  remainder 
did  not  vest  until  the  son's  death.— Westcott  t. 
Meeker  (Iowa)  964. 

i  608.  The  rule  in  Shelley's  Case  would  uot 
be  applied  to  vest  a  fee  in  a  devisee  for  life, 
remainder  to  his  heirs,  where  testator's  intent 
that  the  devisee  should  take  a  life  estate  only 
fairly  appeared.— Westcott  y.  Meeker  (Iowa) 
964. 

{  614.  Provision  in  the  will  of  a  testator 
who  died  prior  to  Laws  1907,  p.  193,  c.  49 
(Cobbey's  Ann.  St.  1907,  §  4901  et  seq.),  held 
to  give  his  widow  the  net  income  for  life  from 
one-third  of  his  estate.— In  re  Manning's  Estate 
(Neb.)  711;   Bonacum  v.  Manning,  Id. 

S  616.  Where  a  life  estate  only  is  devised, 
with  power  to  dispose  of  the  remainder  to  de- 
scribed individuals,  the  express  limitation  for 
life  will  prevent  the  power  from  enlarging  the 
life  estate  to  a  fee.— Loosing  v.  Loosing  (Neb.) 
707. 

I  622.  Where  a  will  devised  to  testator's  son 
all  the  remainder  of  the  estate  both  real  and 
personal,  subject  to  certain  legacies,  there  was 
no  remainder  over  after  the  child's  death  dis- 
posed of  by  the  will.— In  re  Ross  (Wis.)  809; 
Bowker  v.  Shields,  Id. 


<H)  Eatates  In  Trnat  and  Po-vrers. 

Authority  of  administrator  de  bonis  non  to  exe- 
cute power  conferred  on  executor,  see  Execu- 
tors and  Administrators,  {  120. 

Authority  of  administrator  with  will  annexed 
to  execute  power  conferred  on  executor,  see 
Executors  and  Administrators,  g  121. 

i  684.  A  direction  to  testamentary  trustees 
to  pay  to  a  beneficiary  "all  the  interest"  aris- 
ing from  a  certain  fund  held  to  entitle  the  bene- 
ficiary to  the  net  income  only. — Goodwin  v. 
McGaughy  (Minn.)  6. 

{  603.  Will  held  to  give  testator's  wife  a 
power  in  trust  for  their  children's  benefit, 
which  she  was  not  at  liberty  to  exercise  for 
the  benefit  of  any  one  else. — Loosing  v.  Loosing 
(Neb.)  707. 

I  694.  Where  there  is  a  power  to  appoint 
and  no  fdtt,  in  default  of  appointment,  the 
court  will  imply  a  gift  to  the  objects  of  the 
power.— Loosing  v.  Loosing  (Neb.)  707. 

(I)  Aotlona  to  Conatme  TirUIa. 

Power  of  equity  to  give  complete  relief,  see 
Equity,  {  89. 

VH.  BIGHTS  AMD  UABIX.TnES  OF 
DEVISEXS  Ain>  I.EOATBES. 

(A)  Natnre  of  Title  and  Rlarhta  In  Gen- 
eral. 

S  725.  A  jierson  taking  testator's  land  under 
his  will  permitting  him  to  do  so  at  its  appraised 
value  did  not  thereby  obligate  himself  to  pay 
more  than  its  appraised  value. — Fauber  y. 
Keim  (Neb.)  840. 

(D)  Election. 

)  782.  Prior  to  Laws  1907,  p.  193,  c.  49,  the 
widow  of  a  testator  did  not  have  the  right  by 
electing  to  take  under  the  law  and  not  under 
his  will  to  inherit  his  personal  property  as 
though  he  had  died  'ntestate. — In  re  Manning's 
Estate  (Neb.)  711;    Bonacum  v.  Manning,  Id. 

i  784.  Under  Corap.  St.  1907,  S  3000  (Cobbey's 
Ann.  St.  1907,  }  4903)  held,  that  the  surviving 
husband  or  wife  cannot  be  required  to  elect 
whether  he  or  she  will  take  under  the  will. — In 
re  O'Shea's  Estate  (Neb.)  881;  O'Shea  ▼. 
Bruenig,  Id 

(F)  IjeKaeles  Cliarsed  on  Property,  Es- 
tate, or  Intereat. 

§  820.  Provision  in  will  held  to  create  a 
charge  unou  certain  realty.— Fauber  y.  Keim 
(Neb.)  849. 

WITHDRAWAL. 

Of  consent  to  sale  of  intoxicating  liquors.  Bee 

Intoxicating  Liquors,  §  66. 
Of  money  deposited  for  temporary  alimony,  see 

Divorce,  {  210. 

WITNESSES. 

See  Evidence. 

Exclusion  or  inclusion  of  Sunday  in  computa- 
tion of  time  of  notice  of  additional  witnesses, 
see  Time,  §  10. 

Experts,  see  Evidence,  U  471-571. 

Indorsement  of  name  of  sheriff  on  indictment 
as  witness  as  affecting  disqualification  to 
summon  jury  for  trial  of  accused,  see  Jury, 
8  70. 

Opinions,  see  Evidence,  {§  471-571. 

Right  of  accused  to  confront  witnesses,  see 
Criminal  Law,  §  662. 

Testimony  of  accomplices,  see  Oimlnal  Law,  I 
507. 

To  signatures  to  statement  of  consent  to  sale 
of  liquors,  see  Intoxicating  Liquors,  i  66. 


For  cases  In  Deo.  Dig-  *  Amer.  Digs.  UOT  to  date  *  Indexes  le*  same  topie  *  section  (|)  NUHBUB 
122N.W.-79 


Digitized  by 


Google 


1260 


122  NORTHWESTERN  REPORTER. 


n.   COMFETENOT. 

CA)  Capacity    and    <laallflcatlona    In    Gen- 
eral. 

i  38.  The  word  "Indian,"  as  used  in  Civ. 
Code,  {  328  (Cobbey's  Ann.  St.  1907.  {  1313). 
held  not  to  include  the  Japanese.— Pumphrey 
V.  SUte  (Neb.)  19. 

{  79.  An  adult  citizen  of  the  empire  of 
Japan  is  prima  facie  competent  to  talce  an 
oath  and  testify  in  the  courts. — Pnmphrey  v. 
State  (Neb.)  19. 

(O)  Teatlmonr  of  Parties  or  Peraoms  In- 
terented,  for  or  aaralnat  Revreaenta- 
tlTea,  SnrrlTora,  or  Sneceaaora  In  Ti- 
tle or  Intereat  of  Peraona  Deceased 
or  Ineontpetent. 

{  159.  Where  a  will  stated  that  a  witness 
had  had  all  that  was  coming  to  him  from  the 
estate,  such  witness  was  competent,  in  a  con- 
test of  the  will,  to  testify  that  he  had  receiv- 
ed nothing'.— In  re  Winslow's  Will  (Iowa)  971. 

I  159.  Code  1897,  {  46(H,  forbidding  testi- 
mony as  to  personal  transactions  or  communi- 
cations with  one  deceased,  does  not  prohibit 
the  showing  of  facta  which  negative  a  trans- 
action with  one  deceased.- In  re  Winslow's 
WiU  (Iowa)  971. 

(D)  Confidential  Relatlona  and  Prlvlleared 
Commnnlcatlona. 

8  196.  An  agent  selling  farm  machinery  on 
commission  may  be  compelled  to  testify  as  to 
his  arrangement  with  his  principal  to  show  that 
the  latter  is  selling  the  machinery  in  violation 
of  a  manufacturer's  patent  license  fixing  prices. 
—J.  I.  Case  Threshing  Mach.  Co.  v.  Fisher  & 
Aney  (Iowa)  575. 

8  199.  Question  on  cross-examination,  calling 
for  the  disclosure  of  confidential  communica- 
tions between  attorney  and  client,  held  proper- 
ly excluded.— Leistikow  v.  Zuelsdorf  (N.  D.)  340. 

I  202.  Communications  between  attorney 
and  client  during  the  preparation  of  a  will  heJd 
not  privileged. — In  re  Loree's  Estate  (Mich.) 
623;  Loree  v.  Vedder,  Id. 

m.  examhtatiok. 

Of  expert  witnesses,  see  Evidence,  88  547-555. 

(B)  Croaa-Bzamlnation    and    Re-examlna- 
tfon. 

8  267.  On  a  trial  on  an  amended  complaint, 
the  original  complaint  held  not  admissible,  on 
cross-examination  of  complainant,  to  show  Incon- 
sistencies.—Leistikow  V.  Zuelsdorf  (N.  D.)  340. 

8  269.  Where  it  could  be  fairly  inferred  from 
the  questions  asked  on  cross-examination  that 
the  examiner  intended  to  extend  the  investiga- 
tion beyond  the  scope  of  the  direct  examination, 
there  was  no  abuse  of  discretion  in  excluding 
such  questions.- Dralle  v.  Town  of  Reedsburg 
(Wis.)  771. 

TV.  CREDIBII.ITT,  IMFEACHBfENT, 
CONTRADICnON,  AlTD  COR- 
ROBORATION. 

Credibility  as  question  of  law  or  fact  in  general, 
see  Trial,  8  140. 

Review  of  instructions  relating  to  impeachment 
of  witness  as  dependent  on  prejudicial  nature 
of  errors,  see  Criminal  I^w,  8  118G. 

Weight  of  testimony,  see  Evidence,  8  588k 

(A)   In  General. 

I  Hn.  The  false  swearing  of  a  witness  must 
be  intentional  or  willful  to  warrant  the  jury  in 
ignoring  it  in  toto. — Rawlings  v.  Clyde  Plank  & 
%Iacadamized  Road  Co.   (Mich.)  50i. 

324.      Defendant,   in   an   action   for   libel, 
•Jd  not  entitled  to  attack  plaintiffs  credibility 


hJd 


as  a  witness,  where  he  was  called  as  defend- 
ant's witness.— O'Neil  t.  Adams  (Iowa)  976. 

(B)  Cbaracter  and  Coadnet  of  Wltneaa. 

8  344.  Proof  of  specific  acts  is  not  ordinarily 
admissible  on  the  question  of  general  reputa- 
tion as  a  peaceable  citizen.— Boche  t.  State 
(Neb.)  72. 

8  344.  Proof  of  specific  acts  is  not  ordinarily 
permissible  to  impeach  a  witness. — Boche  v. 
State  (Neb.)  72. 

8  349.  A  question  on  cross-examination  of  a 
state's  witness  to  show  that  he  had  been  a 
lounger  around  saloons  and  cardrooms  for  sev- 
eral years  held  properly  excluded. — State  r.  Ma- 
dison (S.  D.)  647. 

8  S49.  In  a  prosecution  for  illegally  selling 
liquor,  refusal  to  permit  the  cross-examination 
of  state's  witness  as  to  his  possession  of  other 
whisky  than  that  alleged  to  have  been  sold  held 
proper.— State  t.  Madison  (S.  D.)  647. 

8  350.  Where,  in  a  prosecution  for  killing 
her  husband,  accused  did  not  raise  the  issue 
of  her  unchastity  before  her  marriage,  the 
state  could  not  show  on  cross-examination 
that  she  was  a  prostitute  before  her  marriage. 
—People  T.  Connelly  (Mich.)  80. 

8  357.  Impeaching  questions  held  not  inad- 
missible because  they  did  not  call  for  the  "gen- 
eral" reputation  of  accused. — State  ▼.  Madison 
(S.  D.)  647. 

8  3G1.  Accused,  having  stated  that  he  had 
been  previously  convicted  of  keeping  open  after 
hours,  was  not  entitled  to  explain  that  it  was 
the  offense  of  his  bartender  while  he  was  ab- 
sent from  town.— State  v.  Madison  (S.  D.)  647. 

(C)  Interest  and   Blaa  of  Wltneaa. 

8  372.  The  court  did  not  err  in  refusing  to 
permit  a  witness  for  the  state  to  testify  on 
cross-examination  as  to  bis  poverty,  and  that  he 
had  not  been  working  regularly. — State  v.  Mad- 
ison (S.  D.)  647. 

(B)  Contradiction  and  Corroboration  of 
TVltneaa. 

8  398.  The  court  in  the  exercise  of  its  dis- 
cretion properly  admitted  evidence  to  impeach 
a  witness,  over  objection  that  it  was  as  to  a 
collateral  matter.— Boche  v.  State  (Neb.)  72. 

i  398.  A  cross-examiner  is  not  bound  _  by 
witness'  answer  to  a  question  on  a  subject 
germane  to  the  main  issue. — Boche  r.  State 
(Neb.)  72. 

WORDS  AND  PHRASES. 

"About"— Monagban  v.  Vanatta  (Iowa)  610. 

"Acquit."— Sherman  v.  Sherman  (S.  D.)  439. 

"Agent"— Scrivner  v.  Anchor  Fire  Ins.  Co. 
(Iowa)  942. 

"All  other  officers."— Board  of  Sup'rs  of  Oratiot 
County  V.  Munson  (Mich.)  117. 

"Allow."— Sawyer  v.  Mould  (Iowa)  813. 

"Apparent  authority."— Farmers'  Co-op.  Ship- 
ping Ass'n  V.  George  A.  Adams  Grain  Co. 
(Nel).)  55. 

"Appliance."— Westlake  v.  Murphy  (Neb.)  684. 

"Assault" — Creasy  v.  Republic  Creosoting  Co. 
(Minn.)  484. 

"Assemblage."— State  v.  Junkin  (Neb.)  473. 

"Bad  faith."— Benton   v.   Sikyta  (Neb.)  61. 

"Battery."— vState  v.  Magill  (N.  D.)  .'SO. 

"Cause  of  action."— Jerome  v.  Rust  (S.  D.)  844. 

"Change  his  business." — ^Taylor  v.  Illinois  Com- 
mercial Men's  Ass'n  of  Chicago,  111.  (Neb.)  41. 

"Charitable  institution."— Gallon  r.  House  of 
Good  Shepherd  (Mich.)  631. 

"Claim."— Sherman  v.  Sherman  (S.  D.)  439. 

"Confession  of  judgment." — Wabaska  Electric 
Co.  V.  City  of  Blue  Springs  (Neb.)  21. 

"Contingent  remainder."— Westcott  t.  Meeker 
(Iowa)  904. 


Topics,  diviiion*,  &  aactlon  ({)  NUMBERS  In  thU  Index.  *  Dec.  *  Amw.  Dies.  *  Reporter  Indexas  ignt 


Digitized  by  VjOOQ  IC 


INDEX-DIOBST. 


1251 


'"Contracts  mala  in  se."— Holland  v.   Sheehan 

,      (Minn.)  1. 

"Decree   of   distribatlon."— Sjoli   t.    Hogenson 

(N.   D.)    1008. 
^'Delivery.*'— McGulre  v.  Clark  (Neb.)  675. 
"Demurrer."— Wapello  State  Sav.  Bank  v.  Col- 
ton  (Iowa)  149. 
"Drain."— Pere  Marquette  R.   Co.   t.  Weilnau 

(Mich.)  303. 
""Due  process  of  law."— Wilber  v.  Beed  (Neb.)  63. 
"Erect."— Red  Lake  Falls  Milling  Co.  ▼.  City 

of  Thief  River  Falls  (Minn.)  872. 
"Estate    of    inheritance."— Harley    v.    Harley 

(Wis.)  761. 
"Fellow  servant." — Anderson  t.  Pittsburg  Coal 

Co.  (Minn.)  794;  Westlake  v.  Murphy  (Neb.) 

684. 
•"Fire."— O'Connor  v.  Queen  Ins.  Co.  of  Amer- 
ica (Wis.)  1038. 
"Flowing  of  lands."— Green  Bay  &  Mississippi 

Canal  Co.  v.  Telulah  Paper  Co.  (Wis.)  1062. 
"Fraud." — Security   Sav.    Bank  of   Wellman   v. 

Smith  (Iowa)  825. 
"Highways."— Gorhnm  v.  Johnson  (Mich.)  181. 
■"Imminent  danger." — Pierce  t.  C.   H.  Bidwell 

Thresher  Co.  (Mich.)  628. 
"Indian."— Pumphrey  v.  State  (Neb.)  19. 
"Injury   received." — Hall   v.   Chicago,   B.   &  Q. 

Ry.  Co.  (Iowa)  894. 
■"Inspection."— Lehman  v.  Chicago,  St.  P.,  M. 

&  O.  Ry.  Co.  (Wis.)  1059. 
"Interest."— Goodwin  v.  McGaughy  (Minn.)  6. 
"Investment     company." — Bressler    v.     Wayne 

County  (Neb.)  23. 
"Kept  closed."— People  ▼.  Norman  (Mich.)  369. 
"Lands."— State  v.   Jones  (Iowa)  241;    Green 

Bay  &  Mississippi  Canal  Co.  t.  Telnlah  Pa- 
per Co.  (Wis.)  1062. 
"Manslaughter."- Roche   v.   State   (Neb.)   72. 
"May  hold  court." — In  re  Southern  Wisconsin 

Power    Co.    (Wis.)    801;    Appeal    of   Black 

Hawk  Land  Co.,  Id. 
"Navigable  stream."— In  re  Southern  Wisconsin 

Power   Co.    (Wis.)   801;     Appeal    of   Black 

Hawk  Land  Co..  Id. 
"Nonnavigable    lake." — State   v.    Jones    (Iowa) 

241. 
"Notice."— Benton  v.  Sikyta  (Neb.)  61. 
"Oath."— Pumphrey  v.  State  (Neb.)  10. 
"Pain."— Hall   v.   Chicago,    B.   &    Q.    Ry.   Go. 

(Iowa)  894. 
"Paper  street"— Raiolo  v.  Northern  Pac.  Ry. 

Co.  (Minn.)  489. 
"Payment."— Sjoli  t.  Hogenson  (N.  D.)   1008. 
"Permit." — Sawyer  v.  Mould  (Iowa)  813. 
"Personal  property."— Acme  Harvesting  Mach. 

Co.  V.  Hingley  (S.  D.)  482. 
"Place  of  public  resort." — State  t.  Madison  (S. 

D.)  647. 
"Proximate  cause."— Monaghan  t.  Northwest- 
em  Fuel  Co.  (Wis.)  10(36. 
"Public  policy."— Holland  v.  Sheehan  (Minn.)  1. 
"Question  or  engineering."— Bates  v.  Chicago, 

M.  &  St  P.  Ry.  Co.  (Wis.)  745. 
"Quit"— Sherman    v.    Sherman    (S.    D.)    439. 
"Quitclaim."— Sherman  v.  Sherman  (S.  D.)  439. 
"Release."— Sherman  v.  Sherman  (S.  D.)  439. 
"Remise."— Sherman  v.  Sherman  (S.  D.)  439. 
"Repairs."— In  re   Renville  Co.   (M;nu.)   1120; 

State  y.  McOuire,  Id. 
"Residence."- Miller  v.  Sovereign  Camp  Wood- 
men of  the  World  (Wis.)  1126. 
"Res  judicata."— In   re  Cook's  Estate  (Iowa) 

578. 
"Shop."— State  v.  Madison  (S.  D.)  647. 
"Simple  tool." — Lehman  v.  Chicago,  St.  P.,  M. 

&  O.  Ry.  Co.  (Wis.)  1059. 


"Sound  value."- Mason  r.  Fire  Ass'n  of  Phil- 
adelphia (S.  D.)  423. 
"State  institution." — Gallon  y.  House  of  Good 

Shepherd  (Mich.)  631. 
"State  Public  School  for  Dependent  Children." 

—State  T.  Barton  (Neb.)  64, 
"Testamentary      capacity."— In      re      Mnllan's 

WiU  (Wis.)  723 ;    Fowler  v.  Crandall,  Id. 
"Transferee  of  a  business." — Buckhout  v.  Wit- 

wer  (Mich.)  184. 
"Under  the  influence  of  any  intoxicant." — Baka- 

lars  ▼.  Continental  Casualty  Co.  (Wis.)  721. 
"Widen  or  deepen." — In  re  Renville  Co.  (Minn.) 

1120;    State  v.  McGuire,  Id. 
"Works    of    internal    improvement"— Cooke   v. 

Iverson  (Minn.)  251. 
"Tear." — Pere  Marquette  R.  Co.  v.  Kalamazoo, 

L.  S.  &  G.  Ry.  Co.  (Mich.)  356. 

WORK  AND  LABOR. 

Liens  for  work  and  materials,  see  Mechanics' 
Liens.  * 

i  14.  Measure  of  damages  of  contractor 
under  a  nonapportionable  building  contract 
stated  where  he  does  not  complete  the  build- 
ing.—Germain  T.  Union  School  Dist.  of  City 
of  Stanton  (Mich.)  524. 

i  27.  In  an  action  for  services  as  a  house- 
keeper for  a  series  of  years,  letters  written  be- 
fore the  date  from  which  compensation  is 
asked  held  admissible. — Conger  t.  Hall  (Mich.) 
1073. 

{  29.  Right  of  recovery  by  contractor  under 
a  nonapportionable  building  contract,  stated, 
where  he  does  not  complete  the  building. — Ger- 
main T.  Union  School  Dist.  of  City  of  Stanton 
(Mich.)  524. 

WRITING. 

Best  and  secondary  evidence  to  show  existence 
of,  see  Evidence,  g  159. 

Necessity  of  written  authority  of  broker,  see 
Brokers,  {  14. 

Necessity  of  written  notice  of  defects  in  street 
as  affecting  liability  for  injuries,  see  Munici- 
pal Corporations,  {  788. 

WRITS. 

See  Process. 

Partievhir  writ*. 

See  Certiorari:  Execution;  Habeas  Corpus; 
Injunction ;  Mandamus ;  Quo  Warranto ;  Re- 
plevin. 

Certiorari  to  justice  of  the  peace,  see  Justices 
of  the  Peace,  §  205. 

Search  warrant  see  Searches  and  Seizures. 

Writ  of  error,  see  Appeal  and  Error. 

WRONGFUL  ATTACHMENT. 

See  Attachment,  §|  374,  380. 

WRONGFUL  SEIZURE. 

See  Taxation,  {  608. 

YEAR. 

Estates  for  years,  see  Landlord  and  Tenant 


Vor  csMi  in  Doc.  Dig.  A  Amer.  Digs.  1907  to  date  *  Indexes  *»t  same  topic  *  section  U)  NUMBER 


Digitized  by 


Google 


Digitized  by  LjOOQIC 


TABLES  OF  NORTHWESTERN  CASES 


nr 


STATE  REPORTS. 


VOL.  139,  IOWA  REPORTS. 


Iow»      N.  W. 

Iow«      N.  W. 

Iowa      N.  W. 

towa       N.  W. 

Iowa      N.  W. 

Iowa      N.  W. 

Iowa     N.  w 

Rep. 

Rep. 
P(C. 

Rep 

Vol. 

Rep. 

pk. 

Rep. 
Pg.    Vol. 

Rep. 
P«. 

Rep 
Pg. 

Rep. 

Rep 

pkT 

Vol. 

Rep. 

pk. 

Rep 
Pk. 

Rep. 

Rep 
Pb. 

Rep. 

Pg.    Vol. 

Vol. 

PB- 

Vol. 

Pk. 

Vol.    Pg. 

1     U6 

1042 

128 

117 

48 

219     117 

260 

349 

115 

877 

440 

116 

718 

548 

117 

864 

626 

U7       962 

7     U6 

1054 

m 

117 

61 

229     117 

676 

351 

115 

903 

444 

116 

820 

652 

117 

956 

629 

117       984 

14     116 

1044 

13B 

117 

298 

242     117 

667 

359 

115 

886 

451 

116 

729 

667 

117 

968 

6.32 

118        47 

18     117 

13 

143 

117 

277 

24«     117 

872 

363 

115 

1035 

456 

116 

808 

563 

117 

971 

644 

117       970 

32     117 

4 

148 

117 

274 

249     117 

668 

370 

115 

1107 

4<>6 

116 

1066 

669 

117 

269 

645 

117        36 

86     116 

)046 

153 

117 

304 

263     116 

930 

378 

116 

138 

471 

116 

1063 

580 

117 

9!i4 

657 

116       791 

44     116 

1058 

15.<) 

117 

44 

273     117 

680 

383 

116 

327 

474 

116 

1049 

582 

117 

981 

676 

U6       694 

62     116 

1061 

162 

117 

273 

283     117 

684 

395 

116 

321 

479 

117 

264 

686 

117 

953 

679 

117     1086 

68     116 

1061 

166 

117 

251 

287     117 

874 

401 

116 

696 

487 

117 

746 

690 

117 

974 

688 

117     1063 

61     117 

26 

176 

117 

60 

292     116 

32 

406 

U6 

606 

499 

117 

768 

596 

117 

961 

703 

117     1089 

64     115 

47» 

179 

117 

SO 

292     118 

788 

409 

116 

789 

611 

117 

755 

599 

117 

968 

709 

117     1074 

68     U7 

25 

182 

117 

12 

314     115 

8 

414 

118 

731 

517 

115 

606 

806 

117 

963 

717 

U7     1069 

72     117 

300 

186 

117 

278 

323     116 

697 

419 

118 

608 

520 

lis 

114 

609 

117 

988 

732 

117     1078 

83     117 

289 

189 

117 

385 

327     136 

603 

423 

118 

699 

628 

116 

1062 

612 

117 

986 

742 

117          1 

107     117 

46 

192 

117 

264 

331     116 

878 

428 

116 

708 

531 

111 

966 

618 

117 

983 

742 

118        36 

115     117 

39 

206 

117 

307 

334     116 

911 

4:{2 

116 

711 

638 

117 

762 

621 

117 

989 

164 

lis        39 

126     U7 

43 

210 

117 

257 

338     116 

937 

437 

US 

785 

646 

m 

966 

VOL.  139,  IOWA  REPORTS. 


Page 

Amldon  v.  Snouffer  (117  N.  W.  44) lf>9 

Anderson  v.  Buchanan  (116  N.  W.  694) ...  676 
Anderson  v.  Thero  (118  N.  W.  47) 632 

Balderston  y.  Cndahy  Packing  Co.  (117  N. 

W.  986) 612 

Beck  V.  Umshler  (116  N.  W.  1.18) .  378 

Bradley  t.  Burkhart  (115  N.  W.  ^T) 323 

Bradley  v.  City  of  Centerville  (117  N.  W. 

968) 599 

Braun  ▼.  Mathicson  (116  N.  W.  789) 40^* 

Brown  t.  Brown  (117  N.  W.  260) 219 

Brown  V.  Honeyfield  (116  N.  W.  731) 414 

Brown  t.  Sheldon  State  Bank  (117  N.  W. 

•  289)   83 

Brown's  Estate,  In  re  (117  N.  W.  260). ...  219 
Buraer  ▼.  Omaha  &  a  B.  St.  R.  Co.  (117  N. 

\V7  35) 645 

Byrne  t.  Independent  School  Dist  of  Stru- 

ble(117N.  W.  983) 618 

Cartan  &  Jeffrey  v.  Wm.  Tackaberry  Co. 

(117  N.  W.  953) 586 

Cedar  Rapids  Aato  &  Supply  Co.  v.  Thom- 
as Jeffrey  &  Co.  (116  N.  W.  1054) 7 

City    Nat.    Bank    of    Columbus,    Ohio    v. 

Jordan  (117  N.  W.  758) 499 

Cole  V.  Brown-Hurley  Hardware  Co.  (117 

N.  W.  746) 487 

Cole  V.Cole  (117  N.  W.  988) 609 

Collins  V.  Collins  H 17  N.  W.  1089) 703 

Cone  V.  Century  Fire  Ins.  (3o.  (117  N.  W. 

307)  205 

Connell   t.   Iowa    State   Traveling   Men's 

Ass'n  (lie  N.  W.  820) 444 

Converse   v.    IncoriMrated  Town   of   Deep 

River  (117  N.  W.  1078) 732 

Conway  v.  Rock  (117  N.  W.  273) 162 


Page 

Correll  v.  National  Ace.  Soc.  (116  N.  W. 

1046)   ,. 86 

Cox  V. dine  ai7  N.  W.  48) 128 

Crawford  v.  Standard  Tel.  Co.  (116  N.  W. 

878)    ' 831 

Cremer  v.  Wapello  County  (117  N.  W.  954)  580 

Davis  T.  Pickerell  (117  N.  W.  276) 186 

Dittmer  v.  Mierandorf  (117  N.  W.  12) 182 

Doak  V.  Briggs  (116  N.  W.  114) 620 

Dolan  V.  Simmons  (115  N.  W.  479) 64 

Dom  &  McGinty  v.  Cooper  (117  N.  W.  1: 

118  N.  W.  85) 742 

Duggleby  Bros.  v.  Lewis  Roofing  Go.  (116 

n:  W.  711) 432 

Farmers'  Sav.  Bank  v.  Arispe  Mercantile 

Co.  (117  N.  W.  672) 246 

Fehd  v7  City  of  Oskaloosa  (117  N.  W.  989)  621 
Fenton  v.  Iowa  State  Traveling  Men's  Ass'n 

(117  N.  W.  251) 166 

Fleming  v.  Lougbren  (115  N.  W.  50m 617 

Fullerton  Lumber  Co.  v.  Snouffer  (117  N. 
W.  50).., 176 

German  v.  Heath  (116  N.  W.  1051) 62 

Hatirahan  v.  O'TooIe  (117  N.  W.  675) 229 

Hanson  v.  Ronsh  (116  N.  W.  1061) 68 

Harbison  v.  Shirley  ai7  N.  W.  96.3) 605 

Hardy  y.  Chicago.  R.  I.  &  P.  R.  (3o.  ai5 

N.  V.  S 814 

Harney  v.  Chicago,  R.  I.  &  P.  R.  Co.  (115 

N.  W.  880) •. 859 

Hawkeye  Savings  &  Loan  Ass'n  y.  Moore 

(117  N.  W.  51) 183 

Heinze  v.  Interurban  R.  Co.  (117  N.  W. 

189 


122  N.W. 


(1258) 


Digitized  by  LjOOQIC 


1254 


122  NORTHWESTEHN  BEPOBTEB. 


139    IOWA— Continued.  Face 

Helvenon  t.  Chicago,  B.  I.  ft  F.  B.  Co. 

(116  N.  W.  699) 423 

Hemmer  v.  Benson  (117  N.  W.  257). 210 

Hendriz  ▼.  Letourneau  (116  N.  W.  728).. .  451 
Herbert  y.  Lloyd  (116  N.  W.  718) 440 

Independent  School  Dist.  of  Fairview  t.  In- 
dependent School  Dist.  of  Burlington  (117 
N.  W.  668) 249 

Iowa  Drug  Co.  ▼.  Souers  (117  N.  W.  300) . .    72 

Johnston  t.  Hoover  (117  N.  W.  277) 143 

Jordan  t.  Boush  (115  N.  W.  903) 351 

Keller  ▼.  Harrison  (116  N.  W.  327) 383 

Keniston  v.  Todd  (117  N.  W.  674) 287 

Kinner  v.  Boyd  (116  N.  W.  1044) 14 

Kirkpatricfc  v.  London  Guarantee  &  Acci- 
dent Co.  (115  N.  W.  1107) 870 

Knapp  V.  Brotherhood  of  American  Yeo- 
man (117  N.  W.  298) 138 

Knopip  T.  Chicago,  B.  I.  ft  P.  B.  Co.  (117 
N.  W.  970) 044 

Lahn  v.  Koep  (115  N.  W.  877) 849 

Latta  T.  Loclnnan  (117  N.  W.  962) 626 

Leathera  v.  Oberlander  (117  N.  W.  30)....  179 

I^eifhelt  v.  Neylon  (117  N.  W.  4) 32 

Lelnbanph  v.  Lloyd  (116  N.  W.  718) 440 

Lindqulst  v.  King^B  Crown  Plaster  Co.  (117 

N.  W.  48) 107 

Long  V.  Joder  (116  N.  W.  1063) 471 

Lowery  v.  Lowery  (115  N.  W.  1035) 863 

Lunde  v.  Cudahy  Packing  Co.  (117  N.  W. 

lOtB)   688 

McCrary  v.  take  City  Electric  Light  Co. 

(117  N.  W.  9(>4) 648 

McCutchen  v.  Koush  (115  N.  W.  903) 351 

McCutchen'B  Estate,  In  re  (115  N.  W.  903)  351 
McDermott  v.  Mahoney  (115  N.  W.  32; 

116  N.  W.  788) 292 

Matheson  v.  Matheson  (117  N.  W.  7.'55). ..  611 
Meirkord  v.  Helming  (116  N.  W.  785)....  437 
Miles  T.  Schrunk  (117  M.  W.  971) 663 

Neeley  v.  Incorporated  Town  of  Hapleton 

(117  N.  W.  981) » .  582 

Nolan  V.  Beed  (117  N.  W.  25) 68 

Ottumwa  Mill  ft  Construction  Co.  y.  Man- 
chester (115  N.  W.  911) 884 

Outtrim's  Will,  In  re  (117  N.  W.  264) 192 

Owens  Bros.  v.  Chicago,  B.  I.  &  P.  B. 
Co.  (117  N.  W.  7C2) 638 


P«ts 

PsAer  T.  Incorporated  Citj  of  BedfoWl  (117 
N.  W.  K5) 645 

Bankin  ft  Cowden  y.  Ungo  ai7  N.  W.  274)  148 

Beynolds  v.  McManns  (117  N.  W.  667) 242 

Bhod^  y.  Des  Moines,  L  E.  &  N.  B.  Co. 

(115N.  W.  503) 827 

Bice  V.  CrxMier  (117  N.  W.  984) 629 

Bidgway  v.  City  of  Osceola  (117  N.  W.  974)  590 

Both  T.Boies  (115  N.  W.  930) , 253 

Budd  y.  Dewey  (U6  N.  W.  1062) 528 

Schmidt  y.  Haner  (111  N.  W.  966) 631 

School   Dist.   of  Fairview  v.   Independent 

School  Dist.  of  Burlington  (117  N.  W. 

068)    249 

ScoveU  y.  PfefEer  (117  N.  W.  684) 283 

Seeds  y.  Seeds  aiT  N.  W.  1069) 717 

Sheker  y.  Machovec  (116  N.  W.  1042) 1 

Slattery  y.  Slatteiy  (116  N.  W.  608) 419 

Snider  y.  Brown  (117  N.  W.  260) 219 

Snonffer  &  Ford  y.  Orove  (116  N.  W.  ICSS)  466 
State  y.  Coming  Sav.  Bank  (115  N.  W. 

937)   338 

State  V.  Gage  (116  N.  W.  596) 401 

State  y.  Grele  (117  N.  W.  13) 18 

State  y.  Lewis  (116  N.  W.  606) 406 

State  V.  Mitchell  (116  N.  W.  808) 455 

State  y.  Partipilo  (116  N.  W.  1049) 474 

State  V.  Payton  (117  N.  W.  43) 125 

State  y.  Ralston  (116  N.  W.  105® 44 

State  V.  Stout  (117  N.  W.  958) 557 

Steber  v.   Chicago  Great  Western  B.  Co. 

(117  N.  W.  <m) 153 

Steltzer  y.  Condon  (118  N.  W.  39) 754 

Sullivaa  y.  SulUvaa  (117  N.  W.  106Q) 679 

Tarashonsky  y.  Illinois  (3ent  B.  Co.  (117 

N.  W.  1074) 709 

Tebbs  V.  JarvU  (116  N.  W.  708) 428 

Tebbs'  WiU,  In  re  (116  N.  W.  708) *28 

Theulen  v.  Viola  Tpi,  of  Audulion  County 
(117  N.  W.  26) 61 

Voss  y.  Chamberlain  (117  N.  W.  2(») 669 

Walkup  T.  Beebe  Old  N.  W.  321) 395 

Warner  v.  Trustees  of  Norwegian  Cemetery 

Ass'n  (117  N.  W.  39) IW 

Weien's  Will,  In  re  (116  N.  W.  791) 657 

White  y.  City  of  Marion  (117  N.  W.  25^. .  479 
Williams  v.  Cbicazo,  M.  &  St.  P.  R.  Co. 

(117  N.  W.  956) 552 

Wlsecarver  ft  Beynard  v.  Chicago,  R.  I.  ft 

P.  R.  Co.  (117  N.  W.  961) 596 

Wise  y.  Outtrim  (117  N.  W.  264) .- 192 

Witt  y.  Town  of  Latimer  (117  N.  W.  68(9  273 


VOL.  166,  MICHIGAN  REPORTS. 


Hlch.     N.  W. 

Mich.     N.  W. 

MIcb.     N.  W. 

Mlcb.      N.  W. 

JOch.     N.  W. 

Mich.     N.  W.  1 

Mich.     N.  V. 

Rep. 

Rep. 

Rep 

Rep. 

Rep. 

Rep. 

Rep 

Rep. 

Rep 

Rep. 

Rep 

Rep. 

Rep 

Rep. 

Pg.   Vol 

Pg. 

Pg. 

Vol. 

Pg. 

Pg.   Vol. 

Pg. 

Pg. 

Vol. 

Pg. 

Pg. 

Vol. 

Pg. 

Pg. 

Vol. 

Pg. 

Pg. 

Vol 

Pg. 

1     US 

489 

86 

118 

736 

196     118 

975 

818 

U8 

961 

m 

lis 

439 

607 

120 

1 

6U 

US 

1076 

8     118 

507 

91 

lis 

741 

207     118 

93b 

320 

119 

3 

421 

U9 

444 

622 

1» 

MS 

614 

U9 

1085 

■U-   118 

679 

94 

118 

738 

214     118 

974 

326 

U8 

987 

424 

U9 

430 

624 

119 

1087 

<18 

U9 

904 

15     118 

4S9 

99 

118 

724 

217     118 

•  993 

328 

118 

990 

426 

119 

573 

634 

119 

918 

624 

119 

1079 

23     118 

678 

103 

118 

732 

228     118 

929 

331 

119 

1 

430 

U9 

578 

543 

U9 

913 

631 

119 

902 

26     118 

605 

107 

118 

742 

233     118 

921 

338 

US 

985 

43S 

119 

445 

648 

119 

1073 

t»4 

119 

fm 

30     118 

497 

115 

118 

745 

237     118 

953 

344 

119 

E7S 

440 

U> 

447 

650 

1» 

916 

640 

119 

lOM! 

36     118 

604 

119 

lis 

964 

242     118 

981 

■M7 

119 

575 

441 

119 

589 

66< 

119 

loeo 

644 

U9 

1093 

38     118 

615 

126 

118 

938 

249     118 

984 

350 

119 

1072 

450 

119 

431 

66» 

U8 

1081 

647 

119 

1094 

44     118 

684 

134 

118 

922 

253     118 

963 

350 

120 

749 

452 

119 

5117 

561 

119 

lost 

661 

U9 

lora 

47     U8 

600 

139 

118 

924 

258     118 

932 

353 

119 

680 

465 

120 

343 

664 

U9 

911 

662 

U> 

UPS 

4»     118 

740 

143 

118 

943 

260     118 

941 

361 

119 

683 

459 

119 

646 

667 

119 

U04 

666 

U> 

1099 

53     118 

731 

151 

lis 

970 

264     118 

967 

369 

m 

288 

463 

U9 

586 

678 

119 

900 

663 

U9 

1(198 

56     118 

727 

161 

118 

931 

272     118 

927 

375 

119 

435 

466 

U9 

640 

685 

119 

1074 

6«S 

119 

1077 

61     118 

729 

165 

lis 

919 

277     118 

933 

384 

U9 

676 

478 

119 

588 

593 

U9 

897 

672 

U» 

U03 

66     118 

726 

169 

118 

946 

284     118 

9,55 

SRS 

119 

433 

480 

120 

« 

600 

119 

10(H 

677 

1» 

8 

69     118 

735 

175 

118 

959 

295     118 

979 

393 

119 

44U 

484 

120 

8 

604 

119 

906 

68« 

US 

EQ 

72     118 

733 

179 

lis 

948 

301      118 

987 

403 

119 

431 

485 

119 

906 

606 

U9 

897 

698 

Ut 

ESS 

,1g>   118 

725 

ISg 

lis 

952 

306      118 

991 

407 

120 

11 

497 

119 

1081 

608 

lU 

1097 

£98 

lU 

«» 

U     lit 

722 

191 

US 

926 

2U     118 

989 

U4 

lis 

432 

602 

119 

912 

Digitized  by  LjOOQIC 


TABLES  OF  NORTHWESTERN  CASES  IN  STATE  REPORTa 


12S5 


VOL.  155,  MICHIGAN  REPORTS. 


Page 
AIli»<7liaImeT8  Co.,  Attorney  General,   ez 
rel.,   r.   Public   Ughtinsr  Com'nission   of 

City  of  Detroit  fllS  N.  W.  933). 207 

Applebanm  v.  Goldman  (121  N.  W.  288). .  369 
Attorney  General  ex  rel.  AUis-Ohalmera  Co. 
V.  Public  Lighting  CommisGion  of  City  of 

Detroit  J[118  N.  W.  935) 207 

Attorney  General  ex  rel.  Beers  v.  Board  of 
CanTassers  of  Seventh  Senatorial  Dist. 
(118  N.  W.  584) 44 


Barbo  V.  Jem  (119  N.  W.  680) 353 

Barto  v.  Detroit  Iron  &  Steel  Co.  (118  N. 

W.    738) 94 

Bay  City  Traction  &  Electric  Co.  v.  Bay 

City  (119  N.  W.  440) 303 

Beasore  v.  Stevens  (119  N.  W.  431) 403 

Beers,  Attorney  General,  ez  ret.,  v.  Board 

of  CJanvassers  of  Seventh  Senatorial  Dist. 

(118  N.  W.  584) 44 

Besser  v.  Alpena  Circuit  Judge  (119  N.  W. 

902)   631 

Bladeclsa  v.  Bay  CMty  Traction  &  Electric 

Co.  (118  N.  W.  963) ; 253 

Blampey  v.  Pike  (119  I^.  W.  576) 384 

BoUenbacher  v.  Reid  (118  N.  W.  933) 277 

Bonnazza  r.  Joseph   Schiitz   Brewing  Co. 

ai8  N.  W.  604) 36 

Bovine  v.  Selden  (119  N.  W.  1000) 556 

Bresler'g  Estate,  In  re  (119  N.  W.  1104). .  567 
Brown  v.  Lennane  (118  N.  W.  581) 686 

CaiUe  Bros.  Co.  ▼.  Saginaw  Circuit  Judge 
(120  N.  W.  6) 480 

Caille  V.  Saginaw  Circuit  Judge  (120  N. 
W.    a 484 

Campbell  v.  Jackson  Circuit  Judge  (118  N. 
W.   987) 826 

(Simpben  T.  Sech  (119  N.  W.  922> 634 

Carrier  v.  Emmet  Circuit  Judgb  (119  N. 
W.    575) 344 

Charles  H.  Werner  &  Sons  Co.  t.  Lewis 
(119  N.  W.  431) I  450 

Citizens'  Sav.  Bank  v.  Globe  Brass  Works 
(118  N.  W.  507) 8 

Comfort  V.  Robinson  (118  N.  W.  943) 143 

Cook  Land,  Const.  &  Producing  Co.  ▼.  Mc- 
Donald ai8  N.  W.  950) 175 

Custard  t,  Hodges  (119  N.  W.  683) 361 

Davis  Colliery  Co.  v.  Charlevoix  Sugar  Co. 

(118  N.  W.  929) 228 

Deane  v.  Kent  CUrcuit  Judge  (119  N.  W. 

1003) 644 

Deitsch  v.  Trans  St  Mary's  Traction  Co. 

(118  N.  W.  480) 15 

Detroit  Free  Press  v.  FbttengiU  (118  N. 

W.    927) 272 

Detroit    Lumber   Co.   v.    Auxiliary    Yacht 

"Petrel"  (119  N.  W.  1072;    120  N.  W. 

749)    860 

Detroit  Trust  Co.  v.  Glazier  Stove  Co.  (118 

N.  W.  722) 81 

Detroit  Trust  Co.   v.  Old   Nat.   Bank  of 

Grand  Rapids  (118  N.  W.  729) 61 

IMz«n  V.  Grand  Trunk  Western  B.  Co.  (118 

N.  W.  94<5) ....169 

Dowse  V.  Gaynor  (118  N.  W.  615) 38 

Ebert  v.  Wilcox  (118  N.  W.  735) 69 

Ecorse  Township  v.  Detroit,  Monroe  &  T. 

&  L.  Ry.  (119  N.  W.  575) 347 

Electric   Park    Amusement   Co.    v.    Wayne 

Circuit  Judge  (119  N.  W.  109^ 640 

Faeder's  Appeal  (119  N.  W.  1104) 667 

Faurot  V.  Swan  (118  N.  W.  955) 284 

Pelt  V.  Felt  (118  N.  W.  953) 237 

Fifth.  Ave.  Library  Soc.  v.  Hastie  (118  N. 
W.    727) 66 


Pag* 
First  Nat.  Bank  Of  Durand  r.  Pblllpotts 

(119  N.  W.  1) 831 

Fitschen  v.  Olson  (119  N.  W.  3) 820 

Frankfort  v.  Schmid  (118  N.  W.  961) 813 

Frolich  v.  Blackstock  (119  N.  W.  900) 604l 

Gardiner  v.  Wayne  Circuit  Judge  (119  N. 

W.   432) 414 

Gerhard  v.  Ford  Motor  Co.  (119  N.  W.  904)  618 

Gilchrist  V.  Corliss  (118  N.  W.  938) 128 

Glenn  V.  Line  (119  N.  W.  1097) 608 

Goldie  V.  Bay  Circuit  Judge  (119  N.  W. 

430) 424 

Goldman  v.  Manistee  Circuit  Judge  (118  N. 

W.   600) ; 47 

Goodfellow  V.  Detroit  United  By.  (119  N. 

W.    9()0) ..     .     678 

Graham  v.'SmYth'(ii8  N*.  W.' 726)! '.'.'.'.'.'.  65 
Grant  V.   Sicklesteel  Lumber  Co.  (119  N. 

W.    1092) ..„ 600 

Grift  y.  Clark  (119  N.  W.  1076) 611 

Haines  t.  Kent  Circnit  Judge  (119  N.  W. 
439) ;.,..  417 

Halladay  v,  Detroit  United  Ry.  (119  N;  W. 
^4ja    ^ 43g 

Haney  v.  Village  of  PindtneV*(ii9  N.  w! 

1099)   656 

Harper  v.  Wayne  Circuit  Judge  (119  N. 

W.   913) 643 

Harrington  v.  Dickinson  (118  N.  W.  981)  161 
Harrington  v.  Huff  &  Mitchell  Co.  (118  N. 

W.    924) 139 

Henika  v.  Brown  (119  N.  W.  1083) 659 

Hickman  v.  Chaney  (118  N.  W.  993) 217 

Hoffman  v.  Hoffman  (118  N.  W.  990) 328 

Hoock  V.  Sloman  (118  N.  W.  489) 1 

Hortoh  V,  Sailing  (119  N.  W.  912) 602 

Jackson  Consolidated  Traction  Co.  t.  Jack- 
son Circnit  Judge  (119  N.  W.  91{^ 622 

Jacobs  V.  Union  Trust  Co.  (118  N.  W.  921)  233 

Jewell  V.  Kelley  (118  N.  W.  987) 301 

Jonasville  v.   Southern   Michigan  Tel.  Co. 

(118  N.  W.  736) 86 

Jordan  t.  Le  Messurier  (118  N.  W.  932)..  188 

Kalis  ▼.  Detroit  United  Ry.  (119  N.  W. 
906)    485 

Kerr  v.  National  Fulton  Brass  Mfg.  Co. 
(118  N.  W.  925) 191 

Kingston  v.  Guck  (118  N.  W.  967) 264 

Knights  of  the  Modem  Maccabees  v.  Com- 
missioner of  Insurance  (118  N.  W.  585)  693 

Koerber  v.  Board  of  Sup'rs  of  Ionia  Coun- 
ty (120  N.  W.  8) 677 

Ladies'  Library  Ass'n  of  Greenville,  Unin- 
corporated, V.  Ladies'  Library  Ass'n  of 
Greenville,  Incorporated  (119  N.  W.  1098)  663 

Liebler  v.  Carrel  (118  N.  W.  975). 196 

LoAard  v.  Van  Alstyne  (120  N.  W.  1) 507 

Lodee  v.  Wayne  County  Clerk  (119  N.  W. 

573)    428 

Lum  V.  Fairbanks  (118  N.  W.  678) 23 

McFarlan  v.  McFarian  (119  N.  W.  1108)  652 
McMillan  v.  Wayne  Circnit  Judge  (119  N. 

W.    1083) 651 

McNamara  v.  Michigan  Trust  Co.  (119  N. 

W.    1074) 685 

McNamara's  Estate,  In  re  (119  N.  W.  1074)  6S5 
McNitt  V.  Henderson  (118  N.  W.  974)....  214 

McPberson  v.  Byrne  (118  N.  W.  985) 838 

Michigan  United  Bys.  Co.  v.  Ingham  Cir- 
cuit Judge  (119  N.  W.  588) 478 

Mitchell  V.  Bay  Probate  Judge  (119  N.  W. 

916)    650 

Mitchell  V.  State  Board  of  Law  Examiners 

(119  N.  W.  587) 452 

Moulter  v.  City  of  Grand  Rapids  (118  N. 
W.    918) ; 166 


Digitized  by  VjOOQ  IC 


1256 


122  NORTHWESTERN  REPOKTEB. 


155  MICH.— Cpttlnued.  Paga 

Muir  ▼.  Kalamazoo  Corapt  Co.  (119  N.  W. 

589)    441 

Muir  V.  Kalamazoo  Corset  Co.  (119  N.  W. 

10T9)    624 

National  Cash  Register  Co.  v.  Dehn  (118 
N.   W.  724) 99 

NichoUs  T.  Charlevoix  Circuit  Judge  (120 
N.  W.  343) 455 

O'Neill  V.  Northern  Assnr.  Co.  of  London, 
England  (119  N.  W.  911) 564 

Parker  t.  Case  (119  N.  W.  1081) :  497 

Parke?  v.  Union  Station  Ass'n  (118  N.  W. 

733) 72 

•  Peck  V.  Grand  Trunk  Western  B.  Co.  (119 

N.  W.  678) 430 

People  V.  Boos  (120  N.  W.  11) 407 

People  ▼.  Clark  (119  N.  W.  1094> 647 

People  T.  Coffey  (118  N.  W.  7.S2) 103 

People  V.  Dow  (118  N.  W.  745) 115 

People  y.  Green  (1 19  N.  W.  1087) 524 

People  V.  James  (119  N.  W.  1073) 648 

People  V.  Minney   (119  N.  W.  918) 534 

People  T.  Moore  (118  N.  W.  742) 107 

Pfaillipa  <r.  Village  of  Armada  (118  N.  W. 

941) 260 

Plefka  y.  Detroit  United  Ry.  (118  N.  W. 

731)   53 

Polk  Printing  Co.  v.  Smedley  (118  N.  W. 

981)   242 

Polk  Printing  Co.  y.  Smedley  (118  N.  W. 

984)   249 

Putnam  v.  Phipnix  Preferred  Accident  Ins. 

Co.  (118  N.  W.922) 134 

Bathbone  y.  Maltz  (118  N.  W.  991) 306 

Reber  v.  Pearson  (110  N.  W.  807) 603 

Richards    v.    Michigan    Pressed    Steel    Co. 

(119  N.  W.  1077) .'.  668 

R.  L.  Polk  Printing  Co.  y.  Smedley  (118  N. 

W.   981) 242 

R.  I*  Polk  Printing  Co.  y.  Smedley  (118 

N.  W.  964) 249 


Fac« 

St.  James  y.  Erskine  (119  N.  W.  807) 606 

St.  L<ouis  Hoop  &  Stave  Co.  v.  Wayne  Cir- 
cuit Judge  (118  N.  W.  960) 311 

Scheer  v.  Detroit  United  By.  (119  N.  W. 

lOW)    561 

Service's  Estate,  In  re  (118  N.  W.  948). ..  179 
Siegel  v.  Wayne  Circuit  Judge  (119  N.  W. 
645)r  4S9 

Smith  y,  Detroit  United  Ry.  (119  N.  W. 
g40)    _ 45g 

Sprague'  V. '  Hos'ie  *  (118  N.'  W.'  497^  "!*!!!     30 

Stabler  y.  Clark  (118  N.  W.  605) 26 

Steele  y.  Saginaw  Circuit  Judge  (120  N. 

W.    8) 484 

Stewart  y.  Stewart  (119  N.  W.  444) 421 

Stock  y.  City  of  Hillsdale  (119  N.  W.  435)  375 

Strifling  y.  Baden  (118  N.  W.  740) 49 

Stringer  y.  Gamble  (118  N.  W.  979) 293 

Township  of  Ecorse  v.  Detroit,  Monroe  & 
T.  S.  L.  Ry.  (119  N.W.STS) 347 

Triangle  Land  Co.  y.  Nessen  (119  N.  W. 
666)    463 

Utley  y.  Utiey  (118  N.  W.  93^ 258 

Valentine  y.  Minneapolis,  St.  P.  &  S.  S. 

M.  B.  Co.  (118  N.  W.  970) 151 

Village  of  Frankfort  y.  Schmid  (118  N.  W. 

961)    313 

Village  of  Jonesville  v.  Southern  Michigan 

Tel.  Co.  (118  N.  W.  736) 86 

Vincent  y.  Ackennan  (119  N.  W.  1085) ...  614 

Warren  v.  Ray  (118  N.  W.  741) 91 

Watking  v.  Detroit  United  By.  (119  N.  W. 
447)    ,,,  440 

Watrous'y."  Watrous'  (iis' N.' W.'  72in '.'.'.'.'.  78 

Weller  y.  Wheelock  (118  N.  W.  609) 698 

Wellman  y.  Blackmon  (119  N.  W.  1102)..  672 
Werner  &  Sons  Co.  y.  Lewis  (119  N.  W. 

431)    450 

Woodruff  y.  Schultz  (118  N.  W.  579) 11 

Wright  y.  La  May  (118  N.  W.  964) 119 

Zimmer  y.  Saier  <119  N.  W.  433) 388 


VOL.  166,  MICHIGAN  REPORTS. 


Mich.     K.  W. 

Mich.     N.  W. 

Mleh.     N.  W. 

Mich.     N.  W. 

Mleh.      N.  W. 

Mich.      N.  W. 

Mich.     N.  W. 

Rep. 

Rep. 

Rep 
PkT 

Rep. 

Rep.         Rep. 
Pg.    Vol.    Pg. 

Rep. 

Pg.    Vol. 

R«p. 
Pg- 

Rep. 
Pg. 

Rep. 

Rep 
Pg. 

Rep. 

Rep 

Rep. 

Pg.    Vol. 

Vol. 

Pit. 

Vol. 

Pg. 

Vol. 

PK. 

Pg. 

Vol. 

Pg. 

1     120 

13 

83 

120 

674 

178"    120       621 

291 

120 

792 

386 

120 

804 

480 

120 

1079 

688 

121 

Sit 

S     120 

21 

87 

120 

571 

183     120       586 

296 

120 

785 

390 

120 

994 

487 

120 

1071 

594 

121 

293 

9     120 

2B 

89 

120 

607 

186     120       610 

301 

120 

811 

397 

120 

977 

493 

121 

209 

597 

121 

812 

U     120 

26 

95 

120 

589 

193     120       697 

818 

120 

789 

404 

120 

980 

499 

121 

268 

609 

121 

731 

20     120 

15 

101 

120 

62:i 

201     120       813 

820 

120 

818 

413 

120 

1001 

511 

121 

258 

630 

121 

490 

26     120 

18 

106 

120 

<m 

211     120       582 

327 

120 

807 

417 

120 

785 

614 

121 

271 

640 

121 

292 

2g     120 

17 

121 

120 

592 

218     120       594 

335 

120 

7S7 

419 

120 

10O4 

518 

121 

230 

642 

121 

279 

81     120 

88 

127 

120 

6S0 

223      120       609 

342 

120 

796 

423 

120 

795 

622 

121 

263 

645 

121 

823 

84     120 

19 

IRfi 

120 

569 

228     120       618 

345 

120 

790 

426 

120 

794 

526 

121 

477 

652 

121 

4S1 

41     120 

14 

138 

120 

679 

235      120       570 

351 

120 

797 

428 

120 

806 

537 

121 

486 

659 

121 

321 

43     120 

23 

145 

120 

572 

237     120       578 

359 

120 

803 

438 

120 

RIO 

645 

IZt 

284 

663 

121 

272 

47     120 

29 

152 

120 

675 

240     120       587 

362 

120 

800 

437 

U7 

182 

■Wl 

121 

265 

668 

121 

1133 

S6     120 

855 

i"iS 

120 

669 

243      120       746 

!!65 

120 

801 

437 

121 

475 

667 

121 

497 

669 

121 

269 

«3     120 

354 

162 

120 

584 

252     120       983 

370 

120 

1003 

451 

120 

993 

^tm 

121 

274 

674 

121 

825 

66     120 

eia 

169 

120 

617 

268     117       179 

373 

120 

989 

455 

122 

179 

567 

121 

297 

687 

IZl 

274 

76     120 

86S 

173 

120 

G81 

2<;8     120       996 

376 

120 

991 

459 

120 

1073 

573 

121 

822 

«97 

Hi 

695 

t»     120 

60& 

176 

120 

588 

288     120     U34 

381 

120 

989 

473 

121 

U8 

582 

121 

300 

VOL.  166,  MICHIGAN  REPORTS. 


Allison,  In  re  (120  N.  W.  19) 34 

Armstrong  y.  Steams  (121  N.  W.  312) 597 

Barber    Asphalt    Pay.    Co.    v.    Village   of 

Highland  Park  (120  N.  W.  621) 178 

Barrett  Co.  v.  Ainsworth  (120  N.  W.  797)  351 

Barthel  v.  Crippen  (120  N.  W.  15) 20 

Beck  V.  Ann  Arbor  K.  Co.  (120  N.  W.  983)  252 
Bettinghouse  v.   Bettinghouse  (120  N.  W. 
617)  169 


Bliss  y.  Tyler  (121  N.  W.  292) «40 

Booker  y.   Grand  Rapids  Medical  College 

(120  N.  W.  589)    95 

Bonghner  v.  Bay  City  (120  N.  W.  597) 193 

Brady  y.  Sloman  (120  N.  W.  795) 423 

Bresler  v.  Delray  Real   Estate  &  Invest- 
ment Ass'n  (120  N.  W.  21) 3 

Brevoort  v.  Partridjre  (120  N.  W.  803)....  859 
Brown  y.  Spiegel  (120  N.  W.  579) 138 


Digitized  by  VjOOQ  l€ 


TABLES  OF  NORTHWESTERN  CASES  IN  STATE  REPORTS. 


1257 


156  MICH.— Contlaued.  Page 

Burgess  T.  Humphrey  Bookcase  Co.  (120 
N.  W.  790)   845 

Canerdy  v.  Port  Huron,  St.  C.  &  M.  O.  R. 

Co.  (120  N.  W.  582) 211 

Capeling  v.  Saginaw  Coal  Co.  (117  N.  W. 

182:   121  N.  W.  475> 437 

Caulkins  v.  Lavigne  (120  N.  W.  607) 89 

C.   H.  Barrett  Co.  v.  Ainsworth  (120  N. 

W.  79T)    351 

Chicago,  Detroit  &,  C.  G.  T.  J.  R.  Co.  v. 

vSt.  Clair  Circuit  Judge  (121  N.  W.  297). .  567 
City  of  Detroit  v.  Dailey  (120  N.  \V.  25) . .  9 
City  of  Detroit  v.  Detroit  United  Ry.  (120 

N.  W.  600)  106 

City  of  Detroit  v.  Michigan  Cent.  R.  Oo. 

(120  N.  W.  592)   121 

City  of  Detroit  v.  Snyder  (121  N.  W.  258)  511 
City  of  Muskegon  v.  Brenan  (120  N.  W.  14)     41 

Comstock  V.  Taggart  (120  N.  W.  29) 47 

Cunningham  v.  Kinyon  (120  N.  W.  806)  . .  428 
Curry  v.  Backus  (120  N.  W.  790) 342 

Dearing  Water  Tube  Boiler  Co.  v.  Thomp- 
son (120  N.  W.  801) 305 

Detroit  y.  Dailey  (120  N.  W.  25) 9 

Detroit  v.  Detroit  United  Ry.  (120  N.  -W. 
600)   : 106 

Detroit  v.  Michigan  Cent.  R.  Co.  (120  N. 
W.  592)   121 

Detroit  v.  Snyder  (121  N.  W.  2.58) 611 

Detroit  Lumber  Co.  v.  Auxiliary  Yacht 
"Petrel"  (121  N.  W.  274) 665 

Detroit  Realty  Co.  v.  Bamett  (120  N.  W. 
80i)  385 

Field  T.  Board  of  Water  Oom'rs  of  City  of 
Mhniatee  (120  N.  W.  610)   186 

Fischer  v.  Board  of  Sup'rs  of  Washtenaw 
County  (120  N.  W.  13) 1 

Fuller  V.  MoCormick  (121  N.  W.  280)  ....  518 

Fulwell  V.  Brown  (121  N.  W.  265) 551 

Gaar,  Scott  &  Co.  v.  Meyer  (121  N.  W. 

263)   .522 

Gaskill  v.  Weeks  (121  N.  W.  11.%) 668 

Gibney  r.  Allen  (120  N.  W.  811) 301 

Gloede  v.  Rautenberg  (120  N.  W.  989) 381 

Gow  V.  McFarren  (120  N.  W.  800) 362 

Grand  Rapids  Electric  R.  Co.  t.  Calhoun 

Circuit  Judge  (120  N.  W.  1004) 419 

Granger  v.  Darling  (120  N.  W.  32) 81 

Haehnle  Brewing  Co.  v.  Board  of  Sup'rs 

of  Jackson  County  (121  N.  W.  209) 493 

Hamilton   v.   American   Hulled   Bean   Co. 

(121  N.  W.  731) 609 

Hansen  v.  Rolison  (120  N.  W.  574) 83 

Harris  v.  Boutwell  (122  N.  W.  179) 455 

Harris  V.  Bow  (120  N.  W.  17) 28 

Haughton  Elevator  &  Mach.  Co.  v.  Detroit 

Candy  Co.  (120  N.  W.  18)   25 

Herron  v.  Raupp  (120  N.  W.  584) 162 

Hodgins  v.  Bay  CHty  (121  N.  W.  274)  ....  687 

Irish  T.  Common  Gonncil  of  City  of  Mt 
Clemens  (121  N.  W.  316)  588 

Jennings  v.  State  Veterinary  Board  (120 
N.  W.  785)   :  417 

Johnson  t.  Desmond  Chemical  Co.  (121 
N.  W.  269) 669 

Killackey  t.  Killackey  (120  N.  W.  680) 127 

Kleinfelt  v,  J.  H.  Someis  Coal  Co.  (121  N. 

W.  118) 473 

Krexner,  In  re  (120  N.  W.  7K) 296 

Lattln  T.  Lattin's  Estate  (120  N.  W.  609)  223 
Layzell  v.  J.  H.  Somers  Coal  Co.  (117  N. 

W.  179 ;   120  N.  W.  996) 268 

Logan    V.    Agricultural    Soc.    of   Lenawee 

County  (121  N.  W.  485) 537 


Page 
McArthur  v.  City  of  Cheboygan  (120  N.  W. 

675) 152 

McFarland  v.  Sayen  (120  N.  W.  794) 426 

McGregor  v.   McGregor's   Estate   (12K)  N. 

W.  1071) 487 

Mclntyre  v.  Mclntyre's  Estate  (120  N.  W. 

587)   240 

MacKinnon  Boiler  &  Mach.  Co.  v.  Central 

Michigan  Land  Co.  (120  N.  W.  26) 11 

Madill  V.  Common  Council  of  City  of  Mid- 
land (120  N.  W.  355) 56 

Marshall   v.   Saginaw   Circuit  Judge  (120 

N.  W.  1134)  289 

Matthews  v.   Joannes   Bros.   Co.   (121   N. 

W.  272)    663 

Michigan  Cent.  R.   Co.  v.  Wayne  Circuit 

Judge  (120  N.  W.  1073) 4.59 

Miller  v.  City  of  Detroit  (121  N.  W.  490)  630 
Monger  v.  New  Era  Ass'n  (121  N.  W.  823)  045 

Moody  V.  Macomber  (120  N.  W.  358) 76 

Muskegon  v.  Brenan  (120  N.  W.  14) 41 

Newcomb  v.  Thorpe  (120  N.  W.  623) 101 

Nichol  T.  Ward  (120  N.  W.  569) 136 

Nolan  V.  Garrison  (120  N.  W.  QIT) 397 

Norblad  v.  Minneapolis.  St.  P.  &  S.  S.  M. 

R.  Co.  (118  N.  W.  593) 697 

Osborne  v.  Osborne  (120  N.  W.  1001)  ....  413 

Parker,  Webb  &  Co.  v.  Austin  (121  N.  W. 

322)   673 

Peets  T.  Peets  (120  N.  W.  571) 87 

People  V.  Detroit  United  Ry.  (121  N.  W. 

321)  659 

People  V.  Gordon  020  N.  W.  578) 237 

People  V.  Klise  (120  N.  W.  989) 373 

People  V.  Peterson  (120  N.  W.  570) 235 

People  V.  Reycraft  (120  N.  W.  993) 451 

People  V.  Smith  (120  N.  W.  581) 173 

People  V.  Stickle  (121  N.  W.  497) 557 

People  V.  Vitali  (120  N.  W.  1003) 870 

People  V.  Vogt  (121  N.  W.  293) 594 

Potter  T.  Barry  Circuit  Judge  (120  N.  W. 

580)   183 

Potvin  V.  West  Bay  CJity  Shipbuilding  Co. 

(120  N.  W.  613) 201 

Randall  ▼.  Union  Trust  Co.  (120  N.  W. 

594)    216 

Reese  v.  Lamore  (120  N.  W.  569) 158 

Rice  V.  Malone  (120  N.  W.  605) 79 

Rohde  v.  Weinberg  (120  N.  W.  789) 318 

Sargeant  v.  City  of  Detroit  (120  N.  W. 

792)    291 

Schmidt  v.  Gaukler  (120  N.  W.  746) 243 

Sbowalter  v.  Modem  Woodmen  of  America 

a20  N.   W.  994) 390 

Spring  V.  Perkins  (120  N.  W.  807) 327 

Steams  v.  Grand  Trank  R.  Co.   (120  N. 

W.    572) 145 

Stender  v.  Kerreos  (121  N.  W.  258) 499 

Stevens  v.  Ottawa  Probate  Judge  (121  N. 

W.    477) 526 

Stewart  v.  Calhoun  Circuit  Judge  (121  N. 

W.    279) 642 

Stoddard  t.  Hibbler  (120  N.  W.  787) 335 

Stonehouse  v.  Stonehouse  (120  N.  W.  23)  43 

Stott  V.  Avery  (121  N.  W.  82.5) 074 

Strong  V.   Grand  Trunk  Western  R,   Co. 

(120  N.  W.  683) 60 

Stumpf  V.  Storz  (120  N.  W.  618) 228 

Taber  v.  Wayne  CSrcuit  Judge  (121  N. 
W.   481). 652 

Tabor  v.  Board  of  Sup'rs  of  Berrien  Coun- 
ty (120  N.  W.  688) 176 

Walker  v.   Landing  &  Suburban  Traction 

Co.   (121   N;   W.   271) 514 

Warren  v.  Shcehan  (120  N.  W.  810) 432 

Watrous  v,  Kenyon  (120  N.  W.  980) 404 


Digitized  by 


Google 


1258 


122  NORTHWESTERN  REPORTER. 


166   MICH.— Continued.  Pag* 

Weadock  v.  Judge  of  the  Recorder's  Court 

of  Detroit   (120  N.   W.   991) 376 

Weaver  v.  Richards  (120  N.  W.  818) 820 

Werstein  t.   Board  of  Sup'rs  of  Calhoun 

County  (120  N.  W.  354) 63 


Page 
White  ▼.  Lake  Shore  &  K.  S.  B.  Co.  (120 

N.    W.    lOrO) 480 

Wilson  r.  Farmers'  Mnt  Fire  Ins.  Co.  (121 

N    W.  284) ...     545 

Wltham'v.  Waish'(i2i  N.'w.'sbO)!!!!!!  682 


VOL.  107,  MINNESOTA  REPORTS. 


Hlnn.    N.  W. 

Minn.     N.  W. 

Minn.     N.  W. 

Minn.    N.  W. 

Minn.     N..W. 

Minn.     N.  W. 

Hloa.    H.W. 

Rep. 

Rep. 
Pg. 

Rep.  . 
Pg.    Vol. 

Rep. 
Pts. 

Rep 
Pg. 

Rep. 

Rep. 

Rep. 

Rep 
PfT 

Vol 

Rep. 
Pg. 

Rep 
Pg. 

Vol. 

Rep. 
Pg. 

Rep 
Pk. 

Rep. 

Pg.    Vol 

Vol. 

Pg. 

Pg.    Vol. 

Pg. 

Vol.    Pg. 

1     U9 

48S 

78     119 

605 

166 

119 

668 

224     lit 

1069 

341 

la) 

300 

430 

120 

640 

503 

120     1088 

6     11$ 

428 

85     U9 

604 

171 

119 

«60 

228     120 

37 

847 

120 

840 

432 

120 

754 

506 

121       8% 

9     11» 

247 

87     119 

502 

17B 

119 

857 

283     U9 

1065 

350 

120 

298 

437 

120 

894 

6i>4 

U9       296 

U     119 

425 

91     119 

490 

177 

119 

948 

237     119 

10S4 

353 

120 

302 

4(1 

120 

894 

6«S 

119       241 

17     U» 

483 

94     119 

795 

184 

119 

656 

239     119 

1063 

.358 

120 

875 

441 

120 

898 

663 

lit       489 

»    n» 

484 

98     119 

491 

184 

119 

1136 

242     119 

1066 

.364 

120 

S28 

444 

120 

898 

664 

Ul     1134 

S     lit 

245 

101     lit 

603 

187 

119 

1068 

245     119 

1070 

370 

120 

873 

453 

120 

1082 

5M 

lit     1134 

29     U9 

386 

104     119 

428 

192 

119 

786 

245     119 

1135 

370 

121 

878 

457 

120 

749 

5AR 

Ut       290 

3a     119 

488 

109     119 

662     19« 

117 

621 

251     119 

1055 

375 

120 

841 

460 

180 

896 

568 

Ut     1134 

86     119 

492 

U9     119 

655  '196 

117 

780 

256      119 

1063 

378 

120 

374 

465 

121 

in 

667 

lit       481 

43     119 

489 

123     119 

797     196 

122 

499 

260     120 

360 

.380 

120 

627 

476 

120 

1021 

568 

119     113S 

46     119 

bov 

127     119 

794    207 

119 

787 

282     119 

965 

383 

120 

B31 

479 

120 

1022 

669 

lit     1135 

49     119 

486 

130     U9 

791 

210 

120 

33 

285      119 

1061 

390 

120 

634 

483 

120 

1090 

671 

120     1125 

E2     119 

41!'/ 

133     119 

790 

214 

120 

859 

291     120 

35 

403 

120 

870 

4S8 

120 

1084 

672 

120    m« 

S4     119 

sS? 

136     119 

799 

214 

121 

916 

296      120 

39 

403 

120 

687 

491 

120 

1086 

573 

120     to: 

£4     119 

661 

140     119 

7M 

217 

119 

802 

315      119 

1B6T 

411 

120 

878 

495 

120 

1086 

573 

120     1134 

68     119 

609 

145     119 

946 

220 

119 

789 

319     119 

1068 

420 

120 

753 

498 

120 

902 

574 

120     1135 

71     119 

792 

152     119 

951 

224 

lit 

1069 

326     120 

S82 

424 

120 

760 

600 

120 

1081 

576 

120     1134 

74     lis 

BIO 

162     119 

801 

VOL.  107,  MINNESOTA  REPORTS. 


Abel  ▼.  Hardwood  Mfg.  Co.  a20  N.  W. 

359;    121  N.  W.  916) 214 

Allen  T-  Wisconsin  Cent.  R.  Co.  (119  N. 

W.   423) B 

Alton  V.  Chicago,  M.  &  St.  P.  R.  Co.  (120  __ 

N.   W.  749) .• 457 

American    Bridge    Co.    of    New   York    v. 

American  Dist   Steam  Co.  (119  N.  W.  ,^^ 

783)   140 

Anderson  v.  Wisconsin  Cent.  R.  Co.  (120 

N.  W.  39) 296 

Andrews  t.  Northwestern  Nat  Bank  (117 

N.  W.  621,  780;  122  N.  W.  499) 196 

Arko  V.  Shenango  Furnace  Co.  (119  N.  W.  „. 

789)   SBiO 

Bailey  v.  Grand  Forks  Lumber  Co.  (119  N. 

W.    786) 192 

Bailey  v.  Grand  Forks  Lumber  Co.  (119  N. 

W.   787) 207 

Bean  t.  Keller  Mfg.  Co.  (119  N.  W.  801). .  162 

Bernick  v.  McClure  (119  N.  W.  247) 9 

Bick  V.  Minneapolis.  St.  P.  &  S.  S.  M.  B. 

Co.  (119  N.  W.  50.5) 78 

Bigum  T.  St.  Paul  Sash,  Door  &  Lumber 

Co.  (119  N.  W.  481) 567 

Bremer  t,  St.  Paul  City  R.  Co.  (120  N.  W. 

382) 326 

Brennan  v.  Butler  Bros.  (120  N.  W.  540)  430 
Burch  V.  Bernard  (120  N.  W.  33) 210 

Calderwood   v.   Jos.   Schlitz  Brewing  Co. 

(121  N.  W.  221) 465 

Campbell  v.  Duluth  &  N.  E.  R.  Co.  (120  N. 

W.   375) ; 358 

C.  H.  Phinney  Land  Co.  T.  Corey  (119  N. 

W.    1134) 564 

Christiansen  v.  Chicago,  M.  &  St.  P.  R. 

Co.  (120  N.  W.  300) 341 

Collins  v.  De  Mars  (119  N.  W.  1134); ... .  666 
Cordello  v.  Deponte  (120  N.  W.  902) 573 

Davidson  v.  Flour  City  Ornamental  Iron 
Works  (119  N.  W.  iKi) 17 

DoIko  v.  Northern  Pac.  B.  Co.  (119  N.  W. 
lOCG)   242 

EUering  v.  Minneapolis.  St.  P.  &  S.  S.  M. 
K.  Co.  (119  N.  W,  507) 46 


Bwing  V.  Stickney  (119  N.  W.  802). ......  217 

Freeman  v.  Paulson  (119  N.  W.  651) 64 

Frye  v.  Wakefield  (120  N.  W.  83) 291 

Gamble-Robinson  Commission  Co.  v.  North- 
ern Pac.  B.  Co.  (119  N.  W.  1068) 187 

George  v.  University  of  Minnesota  Athlet- 
ic A.ss'n  a20  N.  W.  750) 424 

Gilbert  v.  Village  of  White  Bear  (119  N. 
W.  1063) 239 

Haarstad  v.  Gates  (119  N.  W.  39(y) 565 

Hage  T.  St  Paul  Land  &  Mortg.  (Jo.  (120 

N.  W    2S)8)       ......  350 

Hanson V.  Heil'ie '(12b' N.' W." 'sVl") '.'.'.'.'.'.'.'.  375 
Harmon  v.  Chicago  &  N.  W.  R.  Co.  (120 

N.  W.  1022) 479 

Hawkins  v.  Great  Northern  R.  Co.  (119  N. 

W.    1070,    1135) 245 

Heinze  v.  Heinze  (119  N.  W.  489) 43 

Heinze  v.  Heinze  (119  N.  W.  489) 568 

Holland  v.  Netterberg  (120  N.  W.  527) 380 

Hruska  t.  Minneapolis  &  St  L.  R.  Co.  (119 

N.  W.  491) 96 

Irwin  V.  Gould  Elevator  Co.  (119  N.  W. 
1065)   233 

Jacobson  v.  Merrill  &  Ring  Mill  C!o.  (119 

N.  W.  510) 74 

Johnson  v.  Great  Northern  R.  Co.  (119  N. 

W.    1061) 285 

Johnson  v.  Morrison  County  (119  N.  W. 

502) 87 

Johnston  v.  Johnston  (119  N.  W.  652)....  109 
Julius  Kessler  &  Co.  T.  Parelins  (119  N. 

W.   1069) 224 

Kesaler  &  Co.  v.  Parelius  (119  N.  W.  1069)  224 
Kinney  v.  Munch  (120  N.  W.  374) 378 

Lagerman  v.  Casserly  (120  N.  W.  1086). ..  491 

Lannon  v.  Ring  (120  N.  W  1082) 453 

Laverue    Citrus   Ass'n   v.    Chicago   Great 

Western  R.  Co.  (119  N.  W.  705) 94 

Leonard  v.  Clark  (11!)  N.  W.  485) 1 

Unk  V.  New  York  Life  Ins.  Co.  (119  N. 

W.   488) 33 


Digitized  by  VjOOQ  l€ 


TABLES  OF  NORTHWESTERN  CASES  IN  STATE  REPORTS. 


1259 


107   MINN.— Continued.  Page 
Iioaden  t.  Modem  Brotherhood  of  Amer- 
ica (119  N.  W.  425) 12 

IktweY.  Beni  (119  N.  W.  249) 662 

Lucy  T.  Lucy  (120  N.  V-  '54) 432 

McAlplne  v.  MUlen  a20  N.  W.  1134) 672 

Manore  t.  Kilgore-Peteler  Co.  (120  N.  W. 

840) 347 

Mantel  t.  Croxton  Min.  Co.  (120  N.  W. 

1134)    678 

MartinBoii  v.  Northern  Pac.  B.  Co.  (120  N. 

W.  1086) 495 

Meshbesher  r.  Channellene  Oil  &  iStg.  Co. 

<119  N.  W.  428) 104 

Middelstadt  v.  Grand  Lodge  of  Order  of 

Sons  of  Hermann  (120  N.  W.  37) 228 

t 

Nicolas  V.  Albert  Lea  Ught  &  Power  Co. 

(119  N.  W.  503) 101 

Northwest  Thresher  Co.  r.  Andeiison  (120 

N.  W.  1134) 575 

Norton  v.  Frederick  (119  N.  W.  «2) 36 

Odegard  v.  Lemire  (119  N.  W.  1057) 315 

Olson  T.  City  of  Albert  Lea  (119  N.  W. 

794) 127 

Olson  ▼.  Pike  (120  N.  W.  378) 411 

Osborn  ▼.  Froyseth  (119  N.  W.  1135) 668 

Peek  T.  Oatrom  (120  N.  W.  1084) 488 

Peters  t.  Schnlti  (119  N.  W.  385) 29 

Pfudl  V.  F.  J.  Bomer  Sons  (120  N.  W. 

302)    353 

Phinney  Land   Co.  v.  Corey  (119  N.  W. 

1134)   064 

Pintar  v.  Pitt  Iron  Min.  Co.  (119  N.  W. 

1053)   256 

Powers  V.  Johnson  (120  N.  W.  1021) ......  476 

Raitlla  v.  Conailmers'  Ore  Co.  (119  N.  W. 

490)   91 

Rase  y.  Minneapolis.  St.  P.  &  S.  S.  M.  R. 

Co.  (120  N.  W.  360) 260 

Rees  T.  City  of  Minneapolis  (119  N.  W. 

484)   23 

Rines  v.  Ferrell  ai»  N.  W.  1055) 251 

School  District  No.  131  of  Freeborn  Coun- 
ty  T.    School   Dist.    No.   5  of   EVeebom 

County  (120  N.  Wl  898) 442 

Sharp  T.  Simonitsch  (119  N.  W.  790) 133 

Shaw  v.  Staight  (119  N.  W.  951) 152 

Simons  v.  Munch  (120  N.  W.  373 ;   121  N. 

W.    878) 370 

Smith  T.  Funk  (120  N.  W.  1135) 571 

Spencer  v.  Albert  I^ea  Brick  &  Tile  Co. 

(120  N.  W.  870,  087) 403 

State  T.  Brown  (119  N.  W.  e5'n 175 

State  V.  C.  A.  Smith  Timber  Co.  (119  N. 
W.    1136) 669 


Page 

State  T.  Collins  (120  N.  W.  1081) 600 

State  V.  Crombie  (119  N.  W.  058) 166 

State  T.  Crombie  (119  N.  W.  660) 171 

State  T.  Doyle  (120  N.  W.  902) 498 

State  V.  Duluth  Board  df  Trade  (121  N. 

W.    395) 606 

State  V.  H.  O.  Akeley  Lumber  Co.   (119 

N.  W.  nST) 54 

State  V.  Klein  (119  N.  W.  656,  1185)....  184 

State  T.  Nelson  ai9  N.  W.  1058) 319 

State  T.  New  England  Furniture  &  Car- 
pet Co.  (119  N.  W.  427) 62 

State  V.  Northwestern  Tel.  Bxch.  Co.  (120 

N.  W.   534) 390 

State  ex  rel.   Berg   t.  Village   Council  of 

Blackduck  (120  N.  W.  894) 441 

State  ex  rel.  Devine  t.  Peter  (120  N.  W. 

g^\     ^  ^ _  ^ ^QQ 

State  ex  rei.  McDougali  v.'  Qninn  (120  N. 
W.    1088) 603 

State  ex  rel.  United  States  y.  District 
Court  of  Seyenteenth  Judicial  Dist.  (120 
N.  W.  898) 444 

State  ex  rel.  Village  of  Excelsior  y.  Dis- 
trict Court  of  Hennepin  County  (120  N. 
W.  894) 437 

State  ex  rel.  Wah-we-yea-cumin  t.  Olson 
(119  N.  W.  799) 136 

State  ex  rel.  Young  y.  Holgate  (119  N.  W. 
792)   : 71 

State  ex  rel.  Young  y.  Village  of  Gilbert 
(120  N.  W.  628) 364 

Stromme  r.  Rieck  (119  N.  W.  948) 177 

Swedback  y.  Olson  (120  N.  W.  753) 420 

Swick  y.  Sheridan  (119  N.  W.  791) 130 

Thompson  y.  Baxter  (119  N.  W.  797) 122 

Town  of  Winnebago  City  y.  Christensen 

(120  N.  W.  1135) 674 

Tnttle  y.  Buck  (ll6  N.  W.  946) 145 

Twitchell  v.  Minneapolis,  St  P.  &  S.  S.  M. 

B.  Co.  (120  N.  W.  531) 383 

Vukelis  y.  Virginia  Lnmber  Co.  (119  N.  W. 
609)   : 68 

Waligora  y.  St.  Paul  Foundry  Co.  (119  N. 

W.    395) 664 

Webb  y.  Minneapolis  St.  B.  Co.  (119  N.  W. 

966)   282 

Wehrine  y.  Modern  Woodmen  of  America 

(119  N.  W.  245) 25 

Westin  y.  Anderson  (119  N.  W.  486) 49 

West  V.   Village   of  White  Bear  (119  N. 

W.    1064) 237 

Wickstrom  y.  Swanson  (120  N.  W.  1090)..  482 
Wilcox  Canadian  Land  Co.  v.  Stewart  & 

Matthews  Co.  (119  N.  W.  504) 86 

Wyckoff  y.  Wunder  (119  N.  W.  65^ 119 


Digitized  by  LjOOQIC 


12GQ 


122  NORTHWESTEKN  REPORTER. 


VOL.  82,  NEBRASKA  REPORTS. 


Neb.       N.  W. 

Neb 

N 

.W. 

Neb.       N.  W. 

Neb.       N.  W. 

Neb 

.       N.  W. 

Neb.       K.  W. 

Neb.       K.  W. 

Rep. 

Rep. 
Pg. 

Rep 

pk. 

Rep. 

Rep. 

Rep. 

Rep.          Rep. 

Rep 
Pg. 

Rep. 

Rep.          Rep. 

Rep 
Pg. 

Vol 

Rep. 

Pg.    Vol 

Vol. 

Pg. 

Pg.    Vol. 

Pg. 

Pg.    Vol.    Pg. 

Vol. 

Pg. 

Pg.    Vol.    Pg. 

Pg. 

1    lie 

1031 

136 

117 

98 

289     117 

707 

403     117      994 

537 

118 

90 

639     U8       113 

754 

lU 

110J 

12     116 

967 

140 

117 

116 

294     117 

700 

406     118         99 

539 

118 

11 

641     U8       116 

757 

us 

10» 

17     111! 

1128 

147 

117 

102 

298     U7 

776 

414     118        86 

541 

118 

82 

648     118       667 

758 

us 

1054 

2t     116 

Rr.2 

152 

117 

407 

302     117 

714 

429     118        65 

544 

118 

133 

631     lis       674 

761 

us 

1073 

26     116 

9SS 

im 

119 

517 

310     117 

6,<»8 

434     118        73 

552 

118 

136 

K7     118       571 

770 

US 

1i«7 

32     116 

779 

172 

117 

352 

315     117 

712 

442     118        83 

653 

118 

320 

663     U8       657 

772 

us 

lOM 

35     116 

863 

174 

117 

473 

31»     117 

765 

446     118       1U2 

558 

118 

475 

669     118       478 

776 

118 

1U4 

37     116 

9S3 

181 

117 

398 

327     117 

709 

448     118       109 

665 

118 

123 

676     US       568 

777 

US 

KM 

42     116 

780 

189 

117 

347 

336     117 

702 

453     118        92 

570 

118 

465 

684     118       662 

783 

118 

1K7 

45     116 

9Sl) 

191 

117 

401 

344     117 

773 

458     118       106 

677 

118 

114 

688     US       663 

787 

US 

1077 

48     116 

949 

198 

118 

8ii9 

354     117 

706 

464     118        67 

683 

118 

834 

692     118       S65 

794 

us 

10«9 

61     117 

450 

200 

117 

348 

359     117 

706 

472     118       125 

587 

U8 

331 

696     118       650 

800 

us 

1C66 

69     117 

284 

201 

117 

470 

361     117 

882 

475     118        77 

hii-i 

118 

321 

700     US       660 

801 

us 

lOoo 

72     117 

109 

207 

117 

4M 

367     119 

249 

485     118        94 

b98 

118 

328 

704     118       659 

805 

US 

1057 

83     117 

99 

211 

117 

849 

371     117 

99.i 

495     lis        98 

603 

118 

120 

712     U8       662 

806 

US 

1074 

86     117 

107 

214 

118 

113 

375     117 

887 

499     118        70 

606 

US 

468 

716     lis      652 

808 

US 

lOSl 

93     117 

124 

216 

117 

405 

379     117 

991 

507      118         76 

610 

118 

119 

724     118       673 

810 

118 

1(68 

95     116 

1131 

221 

117 

.350 

382     117 

951 

511     118       103 

614 

118 

469 

726     US      655 

825 

119 

17 

99     117 

113 

223 

117 

719 

386     117 

949 

520     118       127 

622 

U8 

122 

732     118       646 

834 

US 

ion 

106     117 

95 

235 

•.:7 

691 

388     117 

992 

528     lis       111 

626 

118 

472 

742     118      478 

841 

118 

1064 

110     117 

104 

254 

117 

768 

392     117 

885 

632     118        81 

6.14 

118 

230 

743     118     1053 

846 

US 

10?4 

US     117 

119 

267 

117 

723 

398     117 

950 

635     119       250 

638 

lU 

331 

744     118     1088 

8S0 

US 

1M3 

m     117 

.  ^ 

282 

U7 

717 

400     117 

»9« 

VOL.  32,  NEBRASKA  REPORTS. 


Page 

Adamek,  In  re  (118  N.  W.  100) 448 

Adams  &  Burke  Co.  v.  Cook  (118  N.  W. 

662)   684 

Allen  V.  Chicago,  B.  &  Q.  R.  Co.  (118  N. 

W.6.5:->)  ..:.. T26 

Allen  V.  Rushfort  (118  N.  W.  657) 663 

Arthur  v.  Glover  (118  N.  W.  Ill) F.28 

Ault  V.  Nebraska  Tel.  Co.  (118  N.  W.  73). .  434 

Backes  v.  Sehlick  (117  N.  W.  707) 289 

Barkley  t.  City  of  Lincoln  (T17  N.  W.  3t)S)  181 

Batten  v.  Klamm  (117  N.  W.  991) 379 

Bemendcrfer  v.  Walker  (118  X.  W.  478). .  742 

Benson  v.  Pctore  (117  N.  W.  MT) 189 

Biseiiiua  v.  City  of  Randolph  (118  N.  W. 

127)    520 

Blair  v.  Kingman  Implement  Co.- (117  N. 

W.  77.-1)    344 

Blid  V.  Blid  (117  N.  W.  700) 294 

Blum  T.  Nebraska-Iowa  Creamery  Co.  (117 

N.  W.  104) 110 

Bolton  V.  Hegner  (118  N.  W.  1090) 772 

Bone  V.  James  (118  N.  W.  83) 442 

Bressler   v.    Wayne    County    (118   N.    W. 

1054)   7.58 

Brinegar  v.  State  (118  N.  W.  47.')) V^oS 

Brockway  r.  Reynolds  (118  N.  W.  3055)..  757 
Buffalo  County  Tel.  Co.  v.  Turner  (118  N. 

W.  1064)    841 

daldwell.  In  re  (118  N.  W.  133) .'544 

Campbell  v.  Yonngson  (118  N.  W.  ^(^X^). .  743 
Carlon  v.  City  Rav.  Bank  (118  N.  W.  334)  .')82 

Carman  v.  Clvde  (118  N.  W.  90) .W7 

Carman  v.  .Johnson  (118  N.  W.  91) 539 

Chndrnn,   City  of,   V.  Dawes  County  (118 

N.  W.  469) 614 

Christen  v.  f^chreiner  (118  N.  W.  102) 446 

City  of  Chadron  r.  Dawes  County  (118  N. 

W.  409)    614 

Clark  V.  Foltyn  (118  N.  W.  119) 610 

Clarke  v.  Lyon  (118  N.  W.  472) 625 

Clarke  v.   Sisters  of  Society  of  the  Holy 

Child  Jeaus  (117  N.  W.  107) 85 

Clingan  v.  Dixon  County  (118  N.  W.  1082)  80S 

Clvde,  In  re  (118  N.  W.  90) .'537 

Cohoe  y.  State  (118  N.  W.  108S) 744 

Continental  Lumber  Co.  v.  Munshaw  &  Co. 

(118  N.  W.  1057)  783 

Cowi>prlliwait  v.  Brown  (117  N.  W.  709). .  327 
Cox  V.  Sheen  (118  N.  W.  125) 472 


Page 
Crites   v.    Modern   Woodmen   of   America 

(117  N.  W.  776) 298 

Crocker  v.  SteidI  (118  N.  W.  1083) 850 

Crosby  t.  Haverly  (118  N.  W.  123) 565 

Currier-  t.  Teske  (117  N.  W.  712) 315 

Dennison  v.  IHiily  NewB  Pub.  Co.  (118  N. 

W.  568)    675 

Douglas  County  t.  Vinsonhaler  (118  N.  W. 

10.58)   810 

Douglas  V.  Hayes  County  (118  N.  W.  114)  5T7 
Doyle  V.  Franek  (118  N.  W.  408) 606 

Everitt  t.  Farmers  &  Merchants  Bank 
ai7  N.  W.  401) 191 

Everitt  v.  Farmers  &  Merchants  Bank 
(118  N.  W.  869) 198 

Fagan  v.  Fagan  (117  N.  W.  992) 388 

Falsken  v.  Farington  (118  N.  W.  1087) 770 

First   Nat.   Bank   v.   Adams  (118   N.    W. 

105.5)   801 

First   Nat.   Bank   ▼.   Adams   (118   N.   W. 

1057)     SKS 

First  Nat.  Bank  ▼.  Samnelson  (118  N.  W. 

81)   632 

First  Nat.  Bank  t.  Samuelson  (119  N.  W. 

a-iO)   535 

Fish  y.  Sundahl  (118  N.  W.  82) tAl 

Francisco  v.  Furry  (118  N.  W.  1102)....  754 

Gentry  v.  Bearss  (118  N.  W.  1077) 787 

Gibson  v.  Sexson  (118  N.  W.  77) 475 

Godfrey  v.  Phillips  (116  N.  W.  950) 45 

Greenwood  v.  King  (116  N.  W.  n2H) 17 

Griswold  v.  Szwanek  (118  N.  W.  1073)...  761 

Hadsall,  In  re  (118  N.  W.  331) 587 

Hadsall  v.  Hadsall  (118  N.  W.  331) 587 

Hamnnn  v.  Nebraska  Underwriters  Ins.  Co. 

(118  N.  W.  65) 429 

Hayes  County  v.  W^ileman  (118  N.  W.  478)  669 

Hayman  y.  Rownd  (118  N.  W.  32^ B98 

Herbage  v.  McKee  (117  N.  W.  706) 354 

Hespen  v.  Union  Pac.  B.  Co.  (118  N.  W. 

OS)   495 

Hess  T.  Dodge  (lie  N.  W.  863) 35 

Holmes  y.  State  (118  N.  W.  99) 406 

Home  Say.  Bank  r.  Shallenberger  (118  N. 

AV.  76)    507 

Honnold  v.  Valley  County  (117  N.  W.  300)  221 
Boon  r.  Uoon  (118  N.  W.  563) 6S3 


Digitized  by  LjOOQ  l€ 


TABLES  OF  NORTHWESTERN  CASES  IN  STATE  REPORT& 


1261 


82   NEB.— Contlnutd.  Page 

Howell  V.  Sheldon  (IIT  N.  W.  109) 72 

Ingraham  v.  State  ai8  N.  W.  320) 653 

International  Text-Book  C!o.  v.  Martin 
(117  N.  W.  994)  403 

Jacobson  v.  Doll  (117  N.  W.  124) 93 

Johnson,  In  re  (118  N.  W.  91) 539 

Johnson  ▼.  Samuelson  (117  N.  W.  470). . .  201 

Kazebeer  t.  Nunemaker  (118  N.  W.  646). .  732 
Keith  V.  Chicago,  B.  &  Q.  R.  Co.  (116  N. 

W.  057)    12 

Kemp  V.  Kemp  ai8  N.  W.  1069) 794 

Kimball  Bros.  Co.  v.  Fitzgerald  (118  N.  W. 

1076)   805 

Kingman  Implement  Co.  t.  Alfalfa  Heal 

Co.  (State  T.  Several  Parcels  of  Land,  117 

N.  W.  4.50) 61 

Kirkpatrick  v.  Fonner  (116  N.  W.  779)..  32 
Kolterman  v.  ChiWere  (117  N.  W.  405) 216 

Landig  &   Schick  v.   Watts  (117  N.   W. 

705)  359 

Lee  V.  City  of  McCook  (116  N.  W.  955). .     26 

Leman  v.  Chipman  (117  N.  W.  88.5) 392 

Lewis  V.  Water  &  Light  O.  (118  N.  W. 

560)   700 

Lincoln  Upholstering  Co.  y.  Baker  (118  N. 

W.  321)   592 

Lopeman  t.  Colburn  (118  N.  W.  116) 641 

Magic  City  Realty  Co.  v.  Scheneckenberger 

(118  N.  W.  567) 648 

Mathews  v.  Glockel  (117  N.  W.  404) 207 

Mathews  v.  Hedlund  (119  N.  W.  17) 825 

Minnesota  Thrpsher  Mfg.  Co.  v.  L'Heureux 

(118  N.  W.  56.5) 692 

Mohr  T.  Rickgauer  (117  N.  W.  950) 398 

Moyer  v.  Leavitt  (117  N.  W.  698) 310 

Mutter  V.  Daniels  (118  N.  W.  109) 448 

Nebraska  Tel.  Go.  v.  City  of  Uncoln  (117 
N.    W.   284)    59 

Newby,  In  re  (117  N.  W.  691) 235 

Northwest  Thresher  Co.  t.  Knbicek  (118  N. 
W.  94) 485 

Nortnass  v.  Pioneer  Townslte  (3o.  (117  N. 
W.  951)   382 

O'Connor  v.  Padget  (116  N.  W.  1131) 95 

Ogdcn  v.  Garrison  (117  N.  W.  714) 802 

Olmsted  v.  Noll  (117  N.  W.  102)...,....  147 
Omaha  Loan  &  Building  Ass'n  t.  Hendee 

(110  N.  W.  862)    24 

Omaha  &  N.  P.  R.  Co.  y.  Sarpy  County 

(117  N.  W.  116) 140 

Phillips.  In  re  (116  N.  W.  950) 45 

Prowett  V.  Nance  County  (117  N.  W.  996)  400 

Raapke  &  fCatz  Co.  r.  SchmoUer  &  Mueller 

Piano   Co.   (118  N.   W.   652) 716 

Ramsey  t.  State  (118  N.  W.  331) 638 

Red  Line  Mut  Tel.  Co.  t.  Pharns  (117  N. 

W.  995)    371 

Beeves  &  Co.  v.  Deets  (117  N.  W.  99} 83 

Relmers   v.   Merrick  County   (118  N.   W. 

113)     6J» 

Rhyn  v.  McDonald  (118  N.  W.  136) 6.52 

Rice  V.  Sharp  (117  N.  W.  96) 132 

Riley  t.  Cudahy  Packing  Co.  (117  N,  W. 

765)    319 


Page 

Rober  r.  Michelsen  (116  N.  W.  949) 48 

Roberts  v.  State  (118  N.  W.  574) 651 

Roberts  v.  Thompson  (118  N.  W.  106) 458 

Robinson,  In  re  (117  N.  W.  352) 172 

Rogers  v.  aty  of  Omaha  (117  N.  W.  119)  118 
Roy  T.  Uoj  (State  v.  Several  Parcels  of 

Land,  117  N.  W.  450) 51 

Ruth  V.  City  of  Omaha  (118  N.  W.  1084). .  840 

Sabln  T.  Cameron  (117  N.  W.  95) 100 

St.  Paul  Han-ester  Co.  t.  Mahs  (117  N.  W. 

702)   336 

Sample  v.  Sample  (116  N.  W.  953) .37 

Saunders  County  v.  Slama  (118  N.  W.  573)  724 

Schley  v.  Horan  (118  N.  W.  659) 704 

Schneider  v.  Loblngier  (117  N.  W.  473)..  174 

Shold  V.  Van  Treeck  (117  N.  W.  113) 99 

Shumway  v.  State  (117  N.  W.  407) 152 

Shumway  v.  State  (119  N.  W.  517) 16G 

Stanser  v.  Gather  (117  N.  W.  98) 13« 

Starke  v.  Chicago,  B.  &  Q.  R.  Co.  (118  N. 

W.  1066)    800 

State  v.  Drayton  (117  N.  W.  768) 254 

State  V.  Fisher  (117  N.  W.  882) 361 

State  V.  Fisher  (119  N.  W.  249) 367 

State  V.  Martyn   (117  N.   W.   719) 225 

State  V.   Several  Parcels  of  Land  (117  N. 

W.  450y 51 

State  r.  Several  Parcels  of  Land  (118  N. 

W.  405) 670 

State  ex  rel.  Keefe  v.  Graves  (117  N.  W. 

717) 282 

State  ex  rel.  King  v.  Solomon  (117  N.  W. 

848) 200 

State  ex  rel.  Mabin  v.  Loer  (118  N.  W. 

120)    002 

State  ex  rel.  Sullivan  t.  Ross  (118  N.  W. 

85)    414 

State  ex  rel.  Thompson  y.  Latenser  (117  N. 

W.  723)    267 

State  ex  reL  Thompson  v.  Neble  (117  N. 

W.    723) 267 

State  ex  rel.  Woods  v.  Rathsack  (117  N. 

W.    949) . .  386 

Stat'e  Life  "ins."  *Co."  v."  "Boiton"  "(118  N."  "w 

122)     622 

Sullivan  y.  Radzuweit  (118  N.  W.  571)...  657 

Swan's  Estate,  In  re  (118  N.  W.  478) 742 

Swanson  v.  James  (116  N,  W.  780) 42 

I 
Taminosien  v.  Crawford  (State  v.  Several 

Parcels  of  Land,  117  N.  W.  45W 51 

Tamow  v.  Carmichael  /116  N.  W.  1031)..       1 

Thomsen  v.  State  (118»N.  W.  330) 634 

Throener  v.   Board  of   Sup'rs   of  Cuming 

County  (118  N.  W.  92) 453 

Walker  y.  Burtless  (117  N.  W.  349) 211 

Walker  v.  Burtless  (118  N.  W.  113) 214 

Ward  V.  Aetna  Life  Ins.  Co.  (118  N.  W. 

70) 499 

Watt  T.  Davidson  (118  N.  W.  562) 712 

Weaver  v.  Dawson  County  Mut.  TeL  Co. 

(118  N.   W.  am 696 

Wertz  V.  Sprecber  (118  N.  W.  1071) 834 

Whitnack  v.  Chicago,  B.  &  Q.  R.  Co.  (118 

N.  W.  67) 464 

Wiltrout  V.  Showers  (118  N.  W.  1080)..,  777 

Wiruth  V.  Lashmett  (117  N.  W.  887) 375 

Woods  V.  Garvey  (118  N.  W.  1114) 776 

Zelenka  v.   Union   Stock  Xards  Co.   (118 
N.  W.   103) 611 


Digitized  by  LjOOQIC 


1262 


122  NOBTHWESTBBN  REPORTER. 


VOL.  137,  WISCONSIN  REPORTS. 


WlB.       N.  W. 

Wis 

N 

.W. 

Wte 

N.W. 

WU 

N.  W. 

Wis 

-N.W. 

Wis 

N.W. 

Wis.        N.  W 

Rep. 

Sep. 

Rep 

pb. 

Rep. 

Rep 

P«r. 

Rep. 

Rep. 
PR. 

Rep. 

Rep 
PR. 

Rep. 

Rep 
PR. 

Rep. 

.Rep 
PR. 

Rep. 

Pg.    Vol. 

Pk. 

Vol 

Pk. 

Vol. 

Pb. 

Vol, 

PR. 

Vol. 

PR. 

Vol. 

PR. 

Vol.    Pg. 

1     U8 

194 

94 

118 

653 

183 

118 

640 

281 

118 

807 

863 

118 

864 

458 

119 

114 

683 

U»      101 

7     118 

182 

97 

IM 

688 

189 

118 

m 

2RR 

118 

846 

367 

119 

826 

461 

119 

126 

688 

119       291 

IS     US 

174 

104 

118 

687 

m 

118 

633 

292 

118 

836 

875 

119 

124 

466 

119 

117 

693 

119       331 

26     118 

187 

107 

118 

B48 

204 

117 

1057 

296 

118 

837 

380 

119 

101 

474 

119 

93 

601 

119       828 

SO     118 

189 

120 

118 

542 

208 

117 

990 

302 

118 

806 

384 

119 

91 

478 

119 

179 

609 

119       394 

S2     118 

208 

128 

118 

643 

218 

118 

198 

304 

118 

804 

8X7 

119 

102 

493 

118 

212 

618 

119       306 

S8     118 

247 

181 

lis 

6SB 

218 

118 

803 

309 

118 

1119 

401 

119 

112 

606 

118 

350 

«2S 

11*       303 

40     118 

173 

im 

118 

B48 

234 

118 

848 

3U 

118 

810 

407 

119 

184 

506 

119 

289 

629 

U9       8S0. 

44     118 

a7 

1.% 

118 

586 

241 

118 

841 

316 

Its 

865 

416 

119 

127 

617 

U9 

665 

634 

US       878 

61      118 

M7 

147 

118 

S53 

266 

118 

811 

325 

U8 

867 

419 

119 

U5 

543 

119 

S38 

637 

U9       840 

51     120 

261 

153 

118 

552 

263 

118 

814 

341 

118 

853 

426 

U9 

94 

550 

119 

297 

640 

lis       S34 

SS     117 

798 

156 

118 

633 

269 

118 

808 

353 

lis 

860 

483 

119 

188 

560 

119 

849 

650 

U9       347 

66     117 

820 

161 

118 

799 

m 

m 

802 

368 

118 

863 

4:0 

119 

97 

564 

119 

808 

66S 

US    ta 

80     U7 

846 

1<» 

US 

54S 

276 

118 

889 

363 

118 

188 

461 

119 

IZl 

D«9 

119 

S42 

VOL.  137,  WISCONSIN  REPORTS. 


Page 
Anderson    r.    Horlick'a    Malted   Milk   Ck>. 

(119  N.  W.  342) 569 

Anderson  v.  Savoy  (118  N.  W.  217)....     44 

Badger  Brass  Mfg.  Co.  t.  Daly  (119  N. 

W.  828)    601 

Beebe  t.  Minnenpolis,  St.  P.  &  S.  S.  M. 

B.  Co,  (118  N.  W.  808) 269 

BillioKton    v.    Ea-stem    Wisconsin    Ry.    ft 

lAght  Co.  («»  N.  W.  127) 416 

Boon  V.  Root  (119  N.  "W.  121) 4.51 

Brann  v.  Campbell  (119  N.  W.  112) 401 

Brooklyn  Creamery  Co.  t.  Friday  (119  N. 

W.    126) 461 

Brown  ▼.   State  (119  N.   W.  338) 643 

Campshnre  t.  Standard  Mfg.  (3o.  (118  N. 

W.  633) 155 

Carstens  ▼.  (3ity  of  Fond  du  Lac  (119  N. 

W.  117)    466 

Chandler  Lumber  Co.   v.  Fehlau  (117  N. 

W.    1057) 204 

Chicago,  M.  &  St  P.   R.  Co.  ▼.  City  of 

JanesviUe  (118  N,  W.  182) 7 

City  of  Ean  Claire  t.  Eau  Claire  Water 

Co.  (119  N.  W.  555) 617 

Olaridge  v.  Evans  (118  N.  W.  198,  803)..  218 
Clemens  v.  Oiicneo,  St.  P.,  M.  &  O.  R.  Co. 

(119  N.  W.  102) 887 

Conlin,  State  ex  rel.,  v.  City  of  Wausau 

(118  N.   W.  810) 311 


Page 
Cowles  V.  City  of  Neillsville  (119  N.  W.  91)  384 
Curtis  Land  &  Loan  Co.  v.  Interior  Land 
Co.  (118  N.  W.  853) 341 

Davis  T.  Davis  (119  N.  W.  334) 640 

Deragon  v.  Sero  (118  N.  W.  839) 276 

Dillon  V.  State  (119  N.  W.  352) 655 

Dohmen    v.    Blum's    Estate    (119   N.    W. 

349)    660 

Domer  v.  School  Dist.  No.  6  (118  N.  W. 

353) 147 

Dorwin  v.  Hagerty  (118  N.  W.  799) 161 

Ean  Claire,  City  of,  v.  Ean  Claire  Water 
Co.  (119  N.  W.  555) 61? 

Emerson  v.  McDonell  (118  N.  W.  814) 263 

Emery,  Town  of,  v.  Town  of  Worcester 
(118  N.  W.  807) 281 

Evans  y.  Claridge  (118  N.  W.  198,  803),.  218 

F.  O.  Hood  &  Co.  V.  Girard  Lumber  Go. 

(118  N.  W.  552) 162 

Poeller  v.  Heintz  (118  N.  W.  543) 169 

Foote  v.  Harrison  (119  N.  W.  291) 688 

Frost  y.  Meyer  (118  N.  W.  811) 255 

Gratz  V.  Parker  (118  N.  W.  637) 104 

Guenther  y.  State  (118  N.  W.  640) 183 

Hanrahan  y.  City  of  JanesviUe  (118  N. 
W.  194)   1 


Digitized  by  VjOOQ  l€ 


TABLBS  or  NOBTHWESTERN  CASES  IN  STATE  REPORT& 


1263 


137  WIS.— ConUaued.  Page 

Haring  t.  Great  Korthern  R.  Co.  (119  N. 

W.    825) 867 

Hartman  Famitare  &  Carpet  Co.  t.  Krieg- 

er  (119  N.  W.  347) 6150 

Hilliard  v.  WiBConsin  Life  Ins.  Co.  (117  N. 

W.  999) 2(« 

Hiroux  V.  Baum  (118  N.  W.  633) 197 

Hite  T.  Keene  (119  N.  W.  303) 625 

Hoffman  v.  Lincoln  Ciounty  (118  N.  W. 

850)   8.53 

Holman  t.  Lueck  (119  N.  W.  124) 376 

Hood  &  Co.  T.  Girard  Lumber  Co.  (118  N. 

W.552) 162 

Hopkins  v.  Racine  Malleable  &  Wrought 

Iron  Co.  (119  N.  W.  301) 583 

Hyman  v.  Susemihl  (118  N.  W.  837) 296 

Jackman  t.  Inman  (118  N.  W.  189) 30 

Jacoby  t.  Chicago  &  N.  W.  R.  Co.  (118  N. 

W.  685)   : 131 

James  Music  Co.  t.  Hankwitz  (118  N.  W. 

806)   *.••••• 802 

Jones  T.  De  Math  (nS  N.  W.  542) 120 

Jones  V.  Monson  (119  N.  W.  179) 478 

Jung  Brewing  Co.  v.  Konrad  (118  N.  W. 

m.)   107 

Bapp  T.  Smith  (118  N.  W.  848) 234 

Kopcyznski  r.  State  (118  N.  W.  863) 358 

Larson  v.  Foss  (118  N.  W.  804) 304 

Lawton  v.  City  of  Racine  (119  N.  W.  831)  593 

Lovesee  v.  State  (118  N.  W.  553) 94 

Lynch  ▼.  Ryan  (118  N.  W.  174) 13 

McCIure,   State  ex  rel.,  t,  Wallschlaeger 

(118  N.  W.  643) 136 

Mariner  v.  Wiens  (119  N.  W.  340) 637 

Miller  v.  Kimberly  &  Clark  Co.  (118  N.  W. 

636)  138 

Miller  y.  Neale  (119  N.  W.  94) 426 

Minneapolis,   St.  P.  &  S.  S.  M.  R.  Co., 
State   ex   rel.,    r.    Railroad   Commission 

(117  N.  W.  840) 80 

Mootz  V.  Petraschefski  (118  N.  W.  865)..  815 
Muellenschlader's   Estate,  In  re  (118  N.  W. 

200)    : 82 

Murphy  v.  Herold  Co.  (119  N.  W.  294). ...  609 

Nelson  t.  A.  H.  Stange  Co.  (118  N.  W. 

1119)  809 

Nelson.  State  ex  rel.,  r.  Emerson  (118  N. 

W.  836)  292 

Ohse  T.  Miller  (119  N.  W.  93) 474 

Ohse's  Will,  In  re  (119  N.  W.  93) 474 

Olson  ▼.  Town  of  Curran  (119  N.  W.  101)  380 


Pace 

Palin  T.  Probert  (118  N.  W.  173) 40 

Paulson  V.  Boyd  (118  N.  W.  841) 241 

Pettingill  v.  Goulet  (118  N.  W.  845) 285 

Phillips  V.  Portage  Transit  Co.  (118  N.  W. 

539)   180 

Pierce  v.  Chicago   &  M.  E.  R.  Co.   (119 

N.  W.  297)    650 

Poluckie  T.  Wegenke  (119  N.  W.  188) 433 

Poole  V.  Tannis  (118  N.  W.  188,  864)....  863 

Rahles  t.  J.  Thompson  &  Sons  Mfg.  Co. 

(118  N.  W.  350;    119  N.  W.  289) 60C 

Rose  T.  Ruggles  (119  N.  W.  97) 439 

Ruggles'  Will,  In  re  ai9  N.  W.  97) 439 

Sanerhering  y.  Rueplng  (119  N.  W.  184). .  407 
Schumacher  v.  Draeger  (119  N.  W.  305) .  .  618 
Smith  V.  Chicago,  M.  &  St  P.  R.  Co.  (118 

N.   W.  638) 97 

State  V.  Hamley  (119  N.  W.  114) 458 

State  ex  rei.  Conlin  r.  City  of  Wausan 

(118  N.  W.  810) 311 

State     ex  rel.   McClure  v.  Wallschlaeger 

(118   N.    W.    643) 136 

State  ex  rel.  Minneapolis,  St.  P.  &  S.  S. 

M.  R.  Co.  T.  Railroad  Commission  (117 

■  N.  W.  846) 80 

State  ex  rel.  Nelson  y.  Emerson  (118  N. 

W.    886) 292 

Steele  v.  Korn  (118  N.  W.  207 ;   120  N.  W. 

2G1)   61 

Stenbom  y.  Brown-Corliss  Engine  Co.  (119 

N.  W.  308) 664 

Stuart  V.  Fnrmers'  Bank  of  Cuba  City  (117 

N.  W.  820) 66 

Thiel  y.  John  Week  Lumber  Co.  (118  N. 

W.  802)    272 

Town    of   Emery   y.   Town   of   Worcester 

(118  N.  W.  807) 281 

Decker  y.  Thiedt  (119  N.  W.  878) 634 

Uecker  y.  Town  of  Clyman  (118  N.  W. 
247)   88 

Voss  V.  Northwestern  Nat.  Life  Ins.  Co. 
(118  N.  W.  212) 492 

Wankowski  y.  Criyitz  Pulp  &  Paper  Co. 

(118  N.  W.  643) 123^ 

Wawrzyniakowski  y.  Hoffman  &  Billings 

Mfg.  Co.  (119  N.  W.  350) 629 

Wheeler  y.  Milner  (118  N.  W.  187) 26 

Willmer  y.  Goebcl  (119  N.  W.  115) 419 

Wisconsin  River  Imp.  Co.  y.  Pier  (118  N. 

W.    857) 825 

Zoerb  y.  Pacta  (117  N.  W.  793) 69 


VOL.  138,  WISCONSIN  REPORTS. 


wis.        N.  W. 

WIe.        N.  W. 

Wig 

N.  W. 

WlB.       N.  W. 

WIS.       N.  W. 

Wis.       N.  W. 

WiR 

N.  W. 

Rep. 

Rep. 

Rep. 
Pg.    Vol. 

Rep. 
Pg. 

Rep 
Pg. 

Rep. 

Rep. 

Hep. 

Rep 

Pg. 

Vol. 

Hep. 
Pg. 

Rep 

pgT 

Rep. 
Vol.    Pg 

Rep 
Pg. 

Hep. 

Pg.    Vol. 

Pg- 

Vol. 

Pg 

Pg.    Vol. 

Pg. 

Vol.    Pg. 

1     119 

879 

93     120 

388 

173 

119 

894 

348     120 

283 

426 

120 

411 

613 

U9     1110 

621 

120       623 

27     US 

m 

103     119 

823 

179 

118 

997 

354     120 

2E2 

tM 

120 

285 

536 

120       216 

628 

120       403 

n     U9 

803 

US     119 

836 

179 

120 

288 

368     120 

249 

M2 

120 

269 

560 

120       226 

636 

120       892 

88     119 

811 

120     119 

929 

215 

119 

309 

377     120 

292 

465 

120 

348 

ifil 

119       82' 

641 

120       499 

41     119 

821 

128     119 

848 

215 

120 

7BB 

381      120 

230 

466 

120 

264 

579 

119       290 

648 

120       899 

44     119 

8!«i 

127     119 

822 

260 

119 

885 

385      120 

281 

476 

120 

227 

584 

120       £12 

654 

120       414 

S3     U9 

647 

129     119 

812 

295 

119 

6r5 

390     120 

235 

484 

120 

346 

593 

120       610 

660 

120       401 

a   119 

804 

133     119 

806 

304 

119 

108 

396     120 

268 

494 

120 

225 

599 

120      896 

664 

120       497 

M     119 

818 

144     119 

814 

315 

119 

190 

401     120 

274 

498 

120 

232 

l!02 

120       417 

667 

120       615 

74     119 

891 

148     119 

810 

340 

120 

844 

404     120 

277 

503 

120 

234 

807 

120       605 

673 

120      498 

ts    U> 

981 

163     119 

843 

342 

120 

247 

416     120 

267 

607 

120 

238 

VOL.  138,  WISCONSIN  REPORTS. 


Adelman's  Will,  In  re  (119  N.  W.  929). ...  120 

Allen  y.  Frawley  (119  N.  W.  565) 295 

Bashford.  fitate  ex  rel.,  y.  Frear  (120  N. 

W.  21Q 636 


Bates  y.  Winters  (120  N.  W.  49^ 673 

Boring  y.Ott  (119  N.  W.  86.5) 260 

Bratz  y.  Stark  (120  N.  W.  396) 699 

Chandos,  Appeal  of  (120  N.  W.  523) 621 

Digitized  by  LjOOQ  l€ 


1264 


122  KORTHWESTEBN  BEPORTEB. 


138    WIS.— Continued.  Page 

Chase  v.  Woodruff  (120  N.  W.  409) 641 

CoUhausen  v.  Dick  (119  N.  W.  ^ 127 

Curtiss  V.  Town  of  Bovina  (120  N.  W. 
401)  (XO 

Day's  Appeal.  In  re  (Kissinger  t.  Ziezer, 

120  N.  W.  249)..... ...868 

Dexter  v.  Witte  (119  N.  W.  891) 74 

Duffy  v.Kadke  (119  N.  W.  811) 38 

Ellinger  t.  Equitable  Life  Assur.   Soc  of 

the  United  States  (120  X.  W.  235) 390 

Ellis  v.  State  (119  N.  W.  1110) 513 

Elmergreen  t.  Weimer  (119  N.  W.  83(5)...  112 

Flaherty  v.  Adelman  (119  N.  W.  929)....  120 

Ford  T.  Freeman  (120  N.  W.  234) 603 

Fox  T.  Postal  Tel.  Cable  Oo.  <120  N.  W. 

3»d)   648 

Frame  v.  Plumb  (118  N.  W.  997;   120  N. 

W.   288) 179 

Gay  T.  Milwaukee  Electric  Ry.  &  Light  Co. 

(120  N.  W.  283) 348 

Goetsch  T.  International  Harvester  Co.  (120 

N.  W.  281) 385 

Goetzinger  v.  Donahue  (119  N.  "W.  823)...  103 
Grimm  t.  Milwaukee  Electric  Ry.  &  Light 

Co.  (119  N.  W.  833) 44 

Heckendom  ▼.  Romadka  (120  N.  W.  257). .  418 
Hicks  Printing  Co.  t.  Wisconsin  Cent.  R. 

Co.  (120  N.  W.  512> 584 

Hint!  T.  Wald  (119  N.  W.  821) 41 

Isaacson  y.  Wisconrin  Tel.  Co.  (119  N.  W. 
804)   63 

Jacobsen  v.  Whitely  (120  N.  W.  285) 434 

Jeffery  y.  Chicago  &  M.  Electric  R.  Co. 
ai9  N.  W.  879) 1 

kiley  V.  Chicago.  M.  &  St.  P.  B.  Co.  (119 

N.  W.  309;    120  N.  W.  756) 215 

Kissinger  v.  Zieger  (120  N.  W.  249) 868 

Leasum  v.  Green  Bay  &  W.  B.  Co.  (120  N. 

W.   510) 593 

r.eiser's  Estate.  In  re  a20  N.  W.  274). ...  401 
Leiser,  State  ex  reL,  v.  Koch  (UO  N.  W. 

839)   27 

McManna,  'State  ex  rel..  t.  Board  of  Trus- 
tees of  Policemen's  Pension  Fund  (119 
N.  W.  806) 133 

McNaughton's  Will,  In  re  (118  N.  W.  997; 
120  N.  W.  288) 179 

Marling  v.  FitzGeraM  (120  N.  W.  388) 93 

Marling  t.  Jones  (119  N.  W.  931) 82 

Maxwell  v.  Town  of  Wellington  (120  N. 
W.    5(K) 607 

Meggett  V.  Northwestern  Mut.  Life  Ins.  Co. 
(120  N.  W.  392) 636 

Meo  y.  Chicago  &  N.  W.  R.  Co.  (120  N.  W. 

Milbrath  V.  State  (i26'N.  W." ^2)! '.'.'.'.'.'.  354 
Moehlenpah  v.  Mayhew  (119  N.  W.  Ma..  561 

Moore  v.  Moore  (120  N.  W.  417) 602 

Moore's  Estate,  In  re  (120  N.  W.  417)....  602 

Neale  ▼.  State  (120  N.  W.  345) 484 

Oconto  Brewing  Co.  y.  Cayonette  (120  N. 
W.  497) 664 

Palmer  y.  Schultz  (120  N.  W.  348) 455 


Page 

Panly  Jail  Bldg.  &  Mfg.  Co.  y.  Collins  (120  | 

K.  W.  225) 404 

Pereles  v.  Letser  (120  N.  W.  274) 401 

Piotrowski  v.  Czerwinski  (120  N.  W.  2(») . .   39t} 
Pittsburgh  Coal  Co.,  State  ex  rel.,  v.  Pat- 
terson (120  N.  W.  227) 475 

Rankel  y.  Buckstaff^Edwards  Co.   (120  N. 

W.   269) 442 

Raschke  y.  Haderer  (119  N.  W.  812) 129 

Raulf  V.  Chicago  Fire  Brick  Co.  (119  N. 

W.    646) 126 

Remington  Drainage  District,   In  re  (120 

N.  W.  523) 621 

Ripley  y.  Sage  Land  &  Improyement  Co. 

(119  N.  W.  108) 804 

Rolling,  Town  of,  y.  Wonderlich  (120  N. 

W.   515) 667 

Rosenberg  y.  McKinney  {120  N.  W.  230). .  381 
Rosenhein,  State'  ex  lel.,  y.  Frear  (119  N. 

W.   894) 173 

Ryan  y.  Oshkoeh  Gas  Light  Co.  (120  N.  W. 

264)   r 466 

St.  Anthony  Min.  A  Mill.  Co.  y.  Shaffra 
(120  N.  W.  238) 507 

Sanitas  Co.  y.  Niezorawski  (120  N.  W. 
2«2)  377 

Sarlesy.  Chicago,  M.  &  St  P.  R.  Co.  (120 
N.  W.  232) 498 

Seidel  y.  Equitable  Life  Assur.  Soc.  of  'the 
United  States  (119  N.  W.  818) 66 

Severa  y.  Beranak  (119  N.  W.  814) 144 

Smith  V.  Board  of  Trustees,  \*  isconidn  Vet- 
erans' Home  (120  N.  W.  403) 628 

Smith's  Apoeal,  In  re  (Mepgett  y.  North- 
western Mut.  Life  las.  Co.,  120  N.  W. 
392)   616 

State  y.  Brooks  (120  N.  W.  226) 560 

State  y.  Sbragia   (119  N.  W.  290) 579 

State  V.  Schmidt  (119  N.  W.  647) 53 

State  ex  rel.  Bashford  y.  Frear  (120  N.  W. 
216)    536 

State  ex  rel.  Leiser  y.  Koch  (lid  N.  W. 
839)   27 

State  ex  rel.  McManus  y.  Board  of  Trus- 
tees of  Policemen's  Pension  Fund  (119  N. 
W.   806) 133 

State  ex  rel.  Pittsburgh  Coal  Ca  y.  Patter- 
son (120  N.  W.  227) 475 

State  ex  rel.  Rosenhein  y.  Frear  (119  N. 
W.  894) If3 

Sullivan's  Appeal,  In  re  (State  ex  rel.  Mc- 
Manus y.  Board  of  Trustees  of  Police- 
men's Pension  Fund,  119  N.  W.  806)...  1,'?3 

Swanke  t.  Herdcman  (120  N.  W.  414)....  654 

Town  of  Rolling  y.  Wunderlldi  (120  N.  W. 
515)    667 

Uhlenberg  y.  Milwaukee  Gas  Light  Ck>. 
(119  N.  W.  810) 148 

Vogel  y.  State  (119  N.  W.  190) 315 

Weisenbach  y.  State  (119  N.  W.  843) 152 

Western  Lime  &  Cement  Co.  v.  Copper  Riv- 
er Land  Co.  (120  N.  W.  277^ 404 

Wilbum  V.  Land  (119  N.  W.  803) 36 

Winnebago  Paper  Mills  v.  Kimberly-Clark 
Co.  (120  N.  W.  411) 425 

Yezick  y.  Chicago  Brass  Oo.  (120  N.  W. 
24i)  342 


wax  poBusania  oo.,  raamaa,  n.  taol,  aiaa. 


Digitized  by  LjOOQIC 


Digitized  by  LjOOQIC 


Digitized  by 


Google 


Digitized  by  LjOOQIC 


Digitized  by 


Google